The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LISA LAMBERTY, :
:
Plaintiff, :
: MEMORANDUM & ORDER
v. : 18-CV-6976 (WFK)
:
COMMISSIONER OF SOCIAL SECURITY, :
:
Defendant. :
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WILLIAM F. KUNTZ, II, United States District Judge: Lisa Lamberty (“Plaintiff”) brings this
action pursuant to 42 U.S.C. § 405(g) alleging the Commissioner of the Social Security
Administration (the “Commissioner” or “Defendant”) improperly denied Plaintiff’s applications
for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Plaintiff
and Defendant both move for judgment on the pleadings under Rule 12(c) of the Federal Rules of
Civil Procedure. ECF Nos. 11, 13. Defendant’s motion is GRANTED, and the Court AFFIRMS
the determination of the Social Security Administration.
PROCEDURAL HISTORY
On April 8, 2015 Plaintiff filed applications for DIB and SSI, alleging a disability onset
date of November 24, 2014. Administrative Record (“Tr.”) at 209–19, ECF No. 15. Her claims
were denied, id. at 131–46, and Plaintiff requested an administrative hearing, id. at 147–49. A
hearing was held on June 19, 2017 before Administrative Law Judge (“ALJ”) Seth I. Grossman.
Id. at 55–114. Plaintiff provided testimony along with Dr. Henry Urbaniak, medical expert
(“ME”) and Christine Boardman, vocational expert (“VE”). Id. at 56; Mem. of Law in Supp. of
Def. Cross-Mot. for J. on the Pleadings at 12–13, ECF No. 14 (“Def. Mem.”). In a decision
dated November 13, 2017 ALJ Grossman determined Plaintiff was not under a disability. Id. at
33–44. Plaintiff requested review by the Appeals Council, which was denied on October 3,
2018. Id. at 1–5. This was the Commissioner’s final act.
STATEMENT OF FACTS
The evidence in this case is undisputed, and the Court adopts Defendant’s factual
recitation. Def. Mem. at 2–13.
STANDARD OF REVIEW
When a claimant challenges a denial of disability benefits by the Social Security
Administration (“SSA”), the Court’s function is not to evaluate de novo whether the claimant has
a disability but rather to determine “whether the correct legal standards were applied and whether
substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004);
see also 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla”—it is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation omitted). The reviewing
court must examine the entire record, weighing the evidence on both sides to ensure the claim
“has been fairly evaluated.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Grey v.
Heckler, 721 F.2d 41, 46 (2d Cir. 1983)).
The Commissioner, not the courts, “weigh[s] the conflicting evidence in the record” and
resolves such conflicts. Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). “While
the ALJ need not resolve every conflict in the record, the crucial factors in any determination
must be set forth with sufficient specificity to enable the reviewing court to decide whether the
determination is supported by substantial evidence.” Calzada v. Asture, 753 F. Supp. 2d 250,
268–69 (S.D.N.Y. 2010) (Sullivan, J.) (internal quotation and alterations omitted). To fulfill this
burden, the ALJ must “adequately explain his reasoning in making the findings on which his
ultimate decision rests” and must “address all pertinent evidence.” Kane v. Astrue, 942 F. Supp.
2d 301, 305 (E.D.N.Y. 2013) (Kuntz, J.) (quoting Calzada, 753 F. Supp. 2d at 269).
DISCUSSION
I. Determination of Disability
A. Applicable Law to Determine DIB and SSI Eligibility
“To be eligible for disability insurance benefits, an applicant must be ‘insured for
disability insurance benefits.’” Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989) (quoting 42
U.S.C. §§ 423(a)(1)(A), 423(c)(1)). Generally, an applicant must apply for benefits during the
period in which she satisfies these earning requirements. Hartfiel v. Apfel, 192 F. Supp. 2d 41,
42 n.1 (W.D.N.Y. 2001) (Larimer, J.). If the applicant does not apply for benefits during this
period, she may still obtain benefits if she has been under a continuous period of disability that
began when she was eligible to receive benefits. Id.
For purposes of both DIB and SSI, disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). The impairment in question must be of “such severity that [the claimant] is not
only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy.” Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To evaluate a disability claim, the Commissioner must apply the five-step sequential
process set forth in 20 C.F.R. §§ 404.1520, 416.920. See McIntyre v. Colvin, 758 F.3d 146, 150
(2d Cir. 2014). First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If not, the
second step is to determine whether the claimant has a “severe medically determinable physical
or mental impairment.” Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has such an
impairment, the third step is to determine whether the impairment or combination of impairments
meets or equals one of the listings in Appendix 1 of the regulations. Id. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the claimant’s impairment does not match any of the listings, the fourth
step requires the Commissioner to determine whether the claimant’s residual functional capacity
(“RFC”) allows the claimant to perform past relevant work. Id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). If the claimant cannot perform past relevant work, the fifth and final step is to
determine whether the claimant can perform any job based on his or her RFC and vocational
considerations—work experience, age, and education. Id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). The claimant bears the burden of proving the first four steps, at which point
the burden shifts to the Commissioner at the fifth step. Rosa v. Callahan, 168 F.3d 72, 77–78
(2d Cir. 1999).
A. Applicable Standards to Evaluate the Evidence
In making a disability determination, “[t]he ALJ will consider all of the available medical
evidence, including a claimant’s statements, treating physician’s reports, and other medical
professional reports.” Fontanarosa v. Colvin, 13-CV-3285, 2014 WL 4273321, at *12
(E.D.N.Y. Aug. 28, 2014) (Brodie, J.) (citing Whipple v. Astrue, 479 F. App’x 367, 370–71 (2d
Cir. 2012) (summary order)). When there is conflicting evidence in the record, courts defer to
the ALJ’s resolution of those conflicts. Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir.
2012). Every medical opinion received will be evaluated, and an ALJ generally should “give
more weight to the medical opinion of a source who has examined [the claimant] than to the
medical opinion of medical source who has not examined [the claimant].” 20 C.F.R.
§404.1527(c)(1). “There is no requirement that the agency accept the opinion of a consultative
examiner concerning a claimant’s limitations.” Pellam v. Astrue, 508 F. App’x 87, 89–90 (2d
Cir. 2013) (summary order). Moreover, the ALJ need not seek additional information “where
there are no obvious gaps in the administrative record.” Rosa, 168 F.3d at 79 n.5.
The ALJ must follow specific procedures in determining the appropriate weight to assign
a treating physician’s opinion. Estrella v. Berryhill, 925 F.3d 90, 95–96 (2d Cir. 2019). The
ALJ must first decide whether the treating physician’s opinion regarding a claimant’s
impairment is entitled to “controlling weight.” 20 C.F.R. § 404.1527(c)(2). Generally, “the
opinion of a claimant’s treating physician as to the nature and severity of the impairment is given
‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the] case record.’” Burgess, 537 F.3d at 128 (quoting 20 C.F.R. § 404.1527(c)(2)).
If the ALJ concludes the treating physician’s opinion is not entitled to controlling weight,
it must next determine how much weight, if any, to give the opinion. Estrella, 925 F.3d at 95. In
doing so, the ALJ “must ‘explicitly consider’” certain factors set forth in Burgess, 537 F.3d 117,
including: (1) the frequency, length, nature, and extent of treatment; (2) the amount of medical
evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical
evidence; and (4) whether the physician is a specialist. Estrella, 925 F.3d at 95–96 (quoting
Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per curiam)). Moreover, the ALJ must “give
good reasons in [its] notice of determination or decision for the weight [it gives the] treating
source’s [medical] opinion.” Id. (internal quotation marks omitted) (alterations in original). If
the ALJ believes there are inconsistencies in a treating physician’s reports or diagnosis, the ALJ
“bears an affirmative duty to seek out more information from the treating physician and to
develop the administrative record accordingly.” Rosa, 168 F.3d at 79.
The failure to apply “explicitly” the above factors when assigning weight to a treating
source opinion constitutes procedural error on the part of the ALJ. Estrella, 925 F.3d at 96
(citing Selian, 708 F.3d at 419–20). Should the ALJ commit such procedural error, the district
court must consider whether the ALJ has otherwise provided “good reasons” for its weight
assignment. Id.; Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004). If “a searching review of
the record” assures the reviewing court “the substance of the treating physician rule was not
traversed,” the court will affirm. Halloran, 362 F.3d at 32. On the other hand, remand is
appropriate “when the Commissioner has not provided ‘good reasons’ for the weight given to a
treating physician[’]s opinion” and the Court cannot conclude the procedural error was harmless.
Id. at 33.
B. The ALJ’s Decision
On November 13, 2017, the ALJ issued a decision following the five-step procedure and
denied Plaintiff’s claim. Tr. at 33–44. First, the ALJ determined Plaintiff did not engage in
substantial gainful activity since November 24, 2014, her alleged onset date.1 Id. at 35. Second,
he found Plaintiff had severe impairments of bilateral carpal tunnel syndrome, status post left
carpal tunnel surgery, status post arthroscopy of a labral tear in the right hip, and degenerative
disc disease in the cervical and lumbar spines. Id. at 36. Third, the ALJ found, after review of
the record, Plaintiff’s impairments did not meet or medically equal the severity of one of the
listed impairments in Appendix 1 of 20 C.F.R. Part 404, Subpart P, specifically considering
Listings 1.02 and 1.04. Id. at 37. The ALJ determined Plaintiff had the RFC to perform
sedentary work2 with the following conditions: Plaintiff can only occasionally finger, handle, lift,
1 The ALJ also determined Plaintiff met the insured status requirements through December 31, 2019. Tr. at 35.
2 Sedentary work is defined as “lifting no more than 10 pounds at a time and occasionally lifting or carrying articles
like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a
and carry with her left hand and can frequently do so with her right dominant hand. Id. at 38. At
the fourth step, the ALJ determined Plaintiff was not capable of performing any past relevant
work. Id. at 42. Fifth, the ALJ determined there are jobs that exist in significant numbers in the
national economy Plaintiff can perform. Id. at 43. Based on the testimony of the vocational
expert, the ALJ concluded Plaintiff was capable of working as a surveillance system monitor or
call out operator. Id. The ALJ therefore concluded Plaintiff was not under a disability. Id. at
43–44.
II. The ALJ’s Determination is Supported by Substantial Evidence
Plaintiff argues ALJ Grossman’s determination was not supported by substantial
evidence. Mem. of Law in Supp. of Pl. Mot. for J. on the Pleadings at 8–9, ECF No. 12 (“Pl.
Mem.”). Plaintiff takes the position ALJ Grossman violated the “treating physician rule” by
failing to accord controlling weight to Dr. Sharon and Dr. Durden, relying on 20 C.F.R.
§ 404.1527(c)(2). Id. at 9–12. Plaintiff further argues the RFC set forth by the ALJ was not
supported by substantial evidence, as the RFC did not account for Plaintiff’s alleged inability to
stoop. Id. at 13. The Court finds these arguments meritless and addresses each in turn.
A. The Treating Physician Rule Was Not Traversed
The record contains the reports of two of Plaintiff’s treating physicians, Dr. Cheri
Durden, Tr. at 408, 465–67, and Dr. Idan Sharon, id. at 429–30. After discussing the medical
evidence presented, ALJ Grossman concluded, “[a]lthough Dr. Durden is the claimant’s treating
physician, the medical records and diagnostic images do not support these extreme limitations.
For similar reasons, [t]he opinion by Dr. Idan Sharon that the claimant cannot sit for more than
two hours is also not supported.” Id. at 41 (internal citation omitted). “[T]he opinion of a
certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567.
treating physician is not afforded controlling weight where, as here, the treating physician issued
opinions that are not consistent with other substantial evidence in the record, such as the opinions
of other medical experts.” Halloran, 362 F.3d at 32.
After determining the treating physician’s conclusions were not “well-supported” by the
medical evidence, ALJ Grossman was required to explicitly consider the Burgess factors. 20
C.F.R. § 404.1527(c)(2); see also Estrella, 925 F.3d at 95–96. While the ALJ discussed
Plaintiff’s treatments by the various doctors since March 6, 2014, Tr. at 39–42, the opinion is
lacking in detail regarding the frequency, length, nature, and extent of treatment by Dr. Durden
and Dr. Sharon. This failure constitutes procedural error on the part of ALJ Grossman. Estrella,
925 F.3d at 96. However, after a thorough review of the record the Court is satisfied the treating
physician rule was not traversed. See Halloran, 362 F.3d at 32.
ALJ Grossman appropriately evaluated the treating physicians’ conclusions by examining
the medical record as a whole. His determination the treating physicians’ opinions were not
supported by the medical evidence is a “good reason” to discount their conclusions. See
Estrella, 925 F.3d at 96. Doctors Durden and Sharon’s determinations of total disability, Tr. at
408, 465–67, 429–30, were contradicted by consultative examiner Dr. Ram Ravi, id. at 440–44,
and examining medical expert Dr. Henry Urbaniak, id. at 63–64, 90–101. Dr. Urbaniak, an
orthopedic specialist, opined the objective medical evidence in the record, including the
diagnostic MRIs, showed only mild issues, which were “not corroborated by any serious
findings.” Id. at 92–93. ALJ Grossman was entitled to rely on Dr. Urbaniak’s interpretation of
the medical evidence as a basis to find the treating physicians’ conclusions were not consistent
with the objective treatment records. 20 C.F.R. § 404.1527(c)(2); Tr. at 41–42. Though the
“ALJ cannot arbitrarily substitute his own judgment for competent medical opinion,” Balsamo v.
Chater, 142 F.3d 75, 81 (2d Cir. 1998), the ALJ is entitled to weigh the conflicting evidence in
the record and resolve any resulting conflicts, Clark, 143 F.3d at 118. Here, ALJ Grossman
appropriately relied on Dr. Urbaniak’s interpretation of the objective medical evidence to
determine the objective evidence did not support the conclusions of Plaintiff’s treating
physicians. Good reasons support the ALJ’s determination “[t]here is thus a lack of sufficient
objective [sic] by which to find that the claimant cannot do at least sedentary work. The
opinions to the contrary are simply not supported.” Tr. at 42.
B. The ALJ’s RFC Determination Was Supported by Substantial Evidence
The opinions of consultative physicians may constitute substantial evidence in support of
an ALJ’s disability determination. Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011)
(summary order); Monguer v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983). The testimony
of a medical expert may also constitute substantial evidence when it is “consistent with the
objective medical evidence in the record.” Heagney-O’Hara v. Comm’r of Soc. Sec., 646 F.
App’x 123, 126 (2d Cir. 2016) (summary order).
Here, the record contains a report from consultative orthopedic surgeon, Dr. Thomas
Nipper, Tr. at 376–79 (consulting for the purposes of workers’ compensation), a consultative
physician, Dr. Ram Ravi, id. at 440–44, and testimony from examining medical expert, Dr.
Henry Urbaniak, id. at 63–64, 90–101. After examining Plaintiff, Dr. Nipper opined Plaintiff
was capable of working without limitation. Id. at 378. Dr. Ravi also examined Plaintiff and
concluded:
[T]he claimant has no limitations to sitting. She has mild limitations to standing,
walking, bending, pushing, pulling, lifting, carrying, and overhead activities. She
is limited from activities requiring fine manipulation. She should avoid driving,
squatting, and climbing stairs due to her neck pain, back pain, right hip pain, and
bilateral hand/wrist pain as depicted above.
Id. at 443. Similarly, after examining Plaintiff and reviewing the record, Dr. Urbaniak
determined the objective MRI findings were not particularly significant and his examination of
Plaintiff was within normal limits. Id. at 93. Dr. Urbaniak concluded there were no objective
findings Plaintiff was limited in her ability to sit for extended periods of time. Id. at 100–01.
None of Dr. Nipper, Dr. Ravi nor Dr. Urbaniak assessed any limitations on Plaintiff’s ability to
stoop.
The ALJ assigned “some weight” to the opinion of Dr. Nipper, finding the diagnostic
images and later opinion evidence showed Plaintiff was limited to sedentary work. Id. at 40. He
assigned “good weight” to Dr. Ravi’s opinion as Dr. Urbaniak had indicated Dr. Ravi’s opinion
was supported by the treatment records. Id. at 41–42. However, the ALJ rejected the portions of
Dr. Ravi’s report limiting Plaintiff’s hand movement as Plaintiff had declined to be tested and
the medical opinion evidence showed her condition improved after her carpal tunnel surgery. Id.
at 41. The ALJ’s RFC determination is consistent with the objectively supported conclusions of
Dr. Nipper and Dr. Ravi, finding Plaintiff can work in a sedentary capacity and can only
occasionally finger, handle, lift, and carry with her left hand, and can frequently do so with her
right dominant hand. Id. at 38. ALJ Grossman was not obligated to directly address Plaintiff’s
ability to stoop, as he set forth the crucial factors with sufficient specificity “to enable the
reviewing court to decide whether the determination is supported by substantial evidence.”
Calzada, 753 F. Supp. 2d at 269 (quotations and internal alterations omitted). Accordingly, the
opinions and testimony of Dr. Nipper, Dr. Ravi, and Dr. Urbaniak, constitute substantial
evidence in support of the ALJ’s RFC determination.
CONCLUSION
For the foregoing reasons, Defendant’s motion for judgment on the pleadings, ECF No.
13, is GRANTED and Plaintiff’s motion for judgment on the pleadings, ECF No. 11, is
DENIED. The Court hereby AFFIRMS the decision of the Social Security Administration.
SO ORDERED.
s/ WFK
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HON. WILLIAM F. KUNTZ, II
UNITED STATES DISTRICT JUDGE
Dated: June 24, 2020
Brooklyn, New York