Vazquez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Nancy Vazquez,

Plaintiff, MEMORANDUM AND ORDER

19-CV-1613 (KAM)

- against -

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. § 405(g), Nancy Vazquez

(“plaintiff”) appeals the final decision of the Commissioner of

Social Security (“defendant” or “the Commissioner”), which found

that plaintiff was not disabled within the meaning of Title II

and XVI of the Social Security Act (“the Act”) and, therefore,

not eligible for disability benefits and supplemental security

income benefits. (ECF No. 1, “Compl.”)

Presently before the court is plaintiff’s motion for

judgment on the pleadings and defendant’s cross-motion for

judgment on the pleadings (ECF. Nos. 14, Notice of Motion for

Judgment on the Pleadings, and 16, Cross Motion for Judgment on

the Pleadings.) For the reasons set for below, plaintiff’s

motion is respectfully DENIED and the Commissioner’s cross-

motion is GRANTED.

BACKGROUND

a. Procedural History

On May 29, 2015, plaintiff filed applications for

Title II disability insurance benefits (“DIB”) and Title XVI

supplemental security income (“SSI”), alleging a disability

onset date of April 20, 2013. (ECF No. 18-1, Joint Statement of

Facts (“JSF”) at 1; ECF No. 19, Administrative Transcript

(“Tr.”) 190-91.) Plaintiff claims she is disabled as a result

of anxiety, hyperextension, asthma, depression, systemic

inflammatory response syndrome, acute pancreatitis, hypokalemia,

degenerative joint disease, constipation, effusion of the knees,

herniated disc in neck and post traumatic stress disorder

(“PTSD”). (Tr. 12, 96-97, 106-107, 190-191; JSF at 1.)

On September 15, 2015, the Social Security

Administration (“SSA”)) denied plaintiff’s applications on the

basis that her “condition was not severe enough to keep [her]

from working.” (Tr. 116-17, 124.) Consequently, plaintiff

requested a hearing before an administrative law judge (“ALJ”).

(Tr. 126-27.) On December 19, 2017, plaintiff, represented by

Lauren Schneer, appeared before ALJ Mark Solomon. (Tr. 12, 62-

95.) Vocational Expert (“VE”) Pat Green also testified at the

administrative hearing. (Tr. 12, 62-95.) By a decision dated

March 9, 2018, the ALJ found that plaintiff was not disabled as

defined under the Act, and denied plaintiff’s DIB and SSI

applications. (Tr. 9-29.) On April 2, 2018, plaintiff

submitted a Request for Review of the ALJ’s decision dated March

9, 2018. (Tr. 189.) On July 23, 2018, plaintiff, represented

by Erin Evers, Esq. and Emilia Sicilia, Esq., submitted a brief1

in support of her appeal, asserting that 1) the ALJ’s residual

functional capacity (“RFC”) determination failed to include all

impairments; 2) the ALJ improperly substituted his medical

opinion for those of the treating sources; 3) the ALJ erred in

weighing the evidence; and 4) the VE testimony was inconsistent.

(Tr. 5; 280-84.) On January 11, 2019, the Appeals Council

denied review, making the ALJ’s decision the final decision of

the Commissioner. (Tr. 1-4; JSF 1.)

On March 15, 2019, plaintiff commenced the instant

action in federal court. (See generally, Compl.)

b. Medical and Non-Medical Evidence

On November 26, 2019, the parties filed a Joint

Stipulation of Relevant Facts, which the court incorporates by

reference herein. (ECF No. 18-1.) The court addresses only

those facts relevant to the ALJ’s decision.

1. Non-Medical Evidence

Plaintiff was 40 years old as of her alleged onset

date of disability, i.e. April 20, 2013. (Tr. 96.) Plaintiff

1 Plaintiff’s brief to the Appeals Council was erroneously dated July 23,

2017.

has a bachelor’s degree, and work experience as a foster

caretaker, YMCA supervisor, tax coordinator, career advancement

coach and state youth court employee. (Tr. 67, 208-09.)

Adult Function Report

In plaintiff’s adult function report dated June 10,

2015, plaintiff reported that her daily routine consists of

taking pain medication when she wakes up, making breakfast,

getting dressed, going to and from appointments, going home,

resting, eating and taking medication before going to bed. (Tr.

215.) Plaintiff stated that she can dress herself, bathe,

prepare basic meals, mop, dust furniture and clean dishes. (Tr.

215-217.) Plaintiff reported she cannot lift heavy objects,

stand for long periods, or walk more than one block without

rest. (Tr. 218.) Plaintiff socializes over the phone, but

reports that she does not make social visits. (Tr. 218.)

Plaintiff also spends time listening to music, reading, watching

TV and having conversations over the phone. (Tr. 219.)

Plaintiff can sit in elevated chairs with cushions, can climb

stairs if she rests between flights, speak, hear, use her hands,

and see with glasses or contact lenses. (Tr. 220.) Plaintiff

cannot kneel or squat without pain. (Id.) Plaintiff is able to

pay attention, can follow oral and written instructions, has no

problems interacting with authority figures, and has no memory

problems. (Tr. 221-222.) Stress and changes in schedule induce

anxiety attacks and shortness of breath. (Id.)

Hearing Testimony

At the December 19, 2017 hearing before the ALJ,

plaintiff testified that she stopped working because she had

several psychological breakdowns at work. (Tr. 67-68.) She

stated that management was bullying her, writing her up for

inconsequential things and pushing her from her job at the same

time she learned that her father had been diagnosed with cancer.

(Id.) Plaintiff was involved in a car accident in 2012, and she

testified that her previous boss had been more lenient in

allowing her to attend physical therapy and work from home. (Tr.

69-70.) Plaintiff further testified that she can groom, bathe,

and dress without assistance. (Tr. 71.) She used a cane while

she was still working and continues to use it to assist with

walking. (Tr. 71.) She cannot travel alone on public

transportation due to phobias. (Tr. 72.) Plaintiff testified

that she occasionally drinks one cup of vodka and orange juice

in order to relax. (Tr. 73.) She has persistent panic attacks

that sometimes prevent her from making appointments and leaving

her apartment. (Tr. 80.)

Vocational Expert Testimony

Also at the December 19, 2017 administrative hearing,

the VE testified that a person of plaintiff’s age, education,

work experience, and ALJ-determined RFC, could not perform

plaintiff’s past work but could perform other jobs in the

national economy. (Tr. 90-91.) These jobs include working as a

stuffer (DOT# 731.685-014, 180,000 jobs in the national

economy), a sorter (DOT# 521.687-086, 80,000 jobs in the

national economy), and a hand bander (DOT# 920.687-030, 85,000

jobs in the national economy). (Tr. 90-91.) If an individual

were off task for more than 10 percent of the workday, unable to

complete tasks in a timely manner, and “unable to perform at a

consistent pace,” there would not be any jobs available to

someone with plaintiff’s limitations. (Tr. 91-92.) A person

incapable of “get[ting] along with coworkers or peers without

unduly distracting them or exhibiting behavioral symptoms” could

not hold any job. (Tr. 92.)

2. Medical Evidence

a. Contemporaneous Medical Records

Dr. McGee, an osteopath, reported that plaintiff’s

back had been injured in a motor vehicle accident. (Tr. 1208.)

Dr. McGee noted that plaintiff’s injury limits her ability to

stand for long periods and would affect some tasks at her work.

(Id.) On March 24, 2014, plaintiff was admitted to the Wyckoff

Heights Medical Center for left knee pain. (Tr. 286.) An exam

revealed that plaintiff had decreased range of motion and

swelling on the anterior of her left knee. (Tr. 287.)

Plaintiff was discharged with a cane, bandage and pain

medication. (Tr. 288-89.) On August 1, 2014, Surekha Bharne,

M.D., examined plaintiff for knee pain. (Tr. 293.) Dr. Bharne

noted that plaintiff had pain in both knees, right worse than

left, and that plaintiff reported experiencing neck, back, and

joint pain. (Tr. 293.)

On, September 1, 2014, plaintiff’s musculoskeletal and

neurological exam results came back as normal. (Tr. 1025.) An

MRI performed by Dr. Michael Reichel on September 2, 2014 showed

fractures in the right L3 and L4 transverse processes and a mild

disc bulge at L4/L5. (Tr. 1139.) A knee examination performed

on November 12, 2014 by Joseph Gorum, MD, showed normal range of

motion, no swelling or redness, no flexion deformity and no

tenderness. (Tr. 290-91.) At another exam by Petris Dzenis,

MD, plaintiff experience pain in both knees and limited

extension. (Tr. 589-90.) On December 10, 2014, Dr. Bharne

found plaintiff’s musculoskeletal exam normal except for mild

crepitus, swelling, tenderness and limited range of motion in

the right knee and diagnosed plaintiff with joint pain and

chondromalacia of patella. (Tr. 482-83.) On February 4, 2015,

Dr. Gorum treated plaintiff for pain and noted that plaintiff

cannot complete a closed MRI due to her phobia. (Tr. 522.)

On February 16, 2016, Dr. Mehvash Hadi, D.O. wrote a

letter noting that she has treated plaintiff for over a year,

and plaintiff requires a machine every day for her asthma. (Tr.

1641.) In a follow up on September 18, 2017, Dr. Hadi noted

plaintiff experienced headaches, short term memory loss, and leg

pain with tingling. (Tr. 1664.) In October and November 2017

Mesh Alla, M.D. saw plaintiff and noted that plaintiff’s sensory

systems were decreased to pinprick and touch in the lower

extremities. (Tr. 1180-1182.) Dr. Mesh assessed paresthesia of

the skin, type 2 diabetes, pain in legs and retrograde amnesia.2

(Tr. 1180.)

b. Medical Opinion Reports

Medical Opinion of Consultative Examiner, Ashley Dolan, Psy.D.

The ALJ examined psychological evidence provided by

psychologist Ashley Dolan, in which Dr. Dolan opined that

although plaintiff has some limitations on her ability to deal

with stress, she can relate adequately to others, maintain a

regular schedule, maintain concentration, and perform simple

2 Several exams and plaintiff’s testimony in the fall of 2017 recounted that

plaintiff experienced memory loss. (Tr. 81-82; 1664; 1212-14.) This recent

development contradicts other evidence that plaintiff suffered no memory-

related problems, including her adult function report dated June 2015. (Tr.

221-222.) The ALJ credited evidence from 2015 and earlier in 2017 showing

plaintiff’s short-term memory was intact, albeit impeded by her pain and

anxiety problems. (Tr. 535, 947.) Though the ALJ did not discuss each of

these findings in detail, he did discuss evidence that plaintiff could

“understand, remember and apply. . . and learn” on a moderately limited

basis. (Tr. 21-22.) He found that “in understanding, remembering, or

applying information, the claimant has no limitation,” while acknowledging

that longstanding mental issues such as PTSD and depression interfered with

plaintiff’s ability to concentrate. (Tr. 15.) Because plaintiff does not

assert that the ALJ erred in making these findings, and the findings are

supported by evidence in the record, the court accepts the ALJ’s finding that

plaintiff had no memory problems.

tasks independently. (Tr. 21, 533-37.) The ALJ assigned Dr.

Dolan’s opinion partial weight. (Tr. 21.)

Medical Opinion of Consultative Examiner Dr. Yevsikova, M.D.

The ALJ reviewed evidence provided by Dr. Yevsikova,

who conducted a one-time consultative examination of plaintiff

on July 29, 2015. (Tr. 19-20, 538-42.) Dr. Yevsikova found

that plaintiff had some limitations affecting her movement and

that she needed her cane. (Tr. 538-42.) The ALJ assigned Dr.

Yevsikova’s opinion partial weight, noting that Dr. Yevsikova

performed a one-time exam and the opinion was consistent with

the ability to perform sedentary or light work.

Medical Opinion of Jillian Torigian, RPA-C

Jillian Torigian, RPA-C, wrote a letter opining that

plaintiff should be considered for disability benefits. (Tr.

20, 548.) Ms. Torigian noted that plaintiff had trouble using

public transportation due to her asthma and other health issues.

The ALJ gave Ms. Torigian’s opinion little weight because she

was not an accepted medical source, and her statements were

vague and conclusory and did not provide functional

restrictions. (Tr. 20.)

Medical Opinion of Consultative Examiner, Dr. Kropsky, M.D.

The ALJ considered evidence from Dr. Kropsky, who

conducted a one-time examination of plaintiff in August 2017.

(Tr. 20.) Dr. Kropsky found that plaintiff had some serious

limitations on her ability to lift weight and could, inter alia,

sit for four hours, stand for three hours, and walk one hour in

an eight-hour day. (Tr. 20, 960-61.) The ALJ assigned Dr.

Kropsky’s opinion little weight due to inconsistencies with

other evidence in the record and internal inconsistencies. (Tr.

20.)

Medical Opinion of Consultative Examiner, John Nikkah, Ph.D.

The ALJ examined evidence provided by consultative

examiner Dr. John Nikkah. (Tr. 21-22.) Dr. Nikkah examined

plaintiff once, in August 2017, and found that plaintiff was

mildly limited in her ability to understand, remember and apply

simple instructions and directions; moderately limited in her

ability to understand, remember or apply complex instructions

and directions; mildly limited in her ability to use reason and

judgment to make work-related decisions; moderately limited in

her ability to sustain concentration to perform a task at a

consistent pace; and was not limited in her ability to maintain

personal hygiene, appropriate attire, or be aware of normal

hazards. (Tr. 948.) Dr. Nikkah further found that the

“[r]esults of the examination appear to be consistent with

psychiatric problems but in itself, this does not appear to be

significant enough to interfere with the claimant’s ability to

function on a daily basis.” (Id.) The ALJ assigned Dr.

Nikkah’s opinion partial weight because it was a one-time exam

that showed mild to moderate limitations which were consistent

with plaintiff’s RFC functional restrictions. (Tr. 22.)

LEGAL STANDARD

Unsuccessful claimants for disability benefits under

the Act may bring an action in federal district court seeking

judicial review of the Commissioner’s denial of their benefits

“within sixty days after the mailing. . . of notice of such

decision or within such further time as the Commissioner of

Social Security may allow.” 42 U.S.C. §§ 405(g), 1383(c)(3). A

district court, reviewing the final decision of the

Commissioner, must determine whether the correct legal standards

were applied and whether substantial evidence supports the

decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.

1998); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004).

A district court may set aside the Commissioner’s

decision only if the decision is based on legal error or if the

factual findings are not supported by substantial evidence.

Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).

Substantial evidence is “more than a mere scintilla” and must be

relevant evidence that a reasonable mind would accept as

adequate to support a conclusion. Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 420

U.S. 389, 401 (1971)). If there is substantial evidence in the

record to support the Commissioner’s factual findings, those

findings must be upheld. 42 U.S.C. § 405(g). Inquiry into legal

error “requires the court to ask whether ‘the claimant has had a

full hearing under the [Commissioner’s regulations] and in

accordance with the beneficent purposes of the [Social Security]

Act.’” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). The

reviewing court does not have the authority to conduct a de novo

review, and may not substitute its own judgment for that of the

ALJ, even when it might have justifiably reached a different

result. Cage v. Comm’r, 692 F.3d 118, 122 (2d Cir. 2012).

To receive disability benefits, claimants must be

“disabled” within the meaning of the Act. See 42 U.S.C. §§

423(a), (d). A claimant is disabled under the Act when she is

unable 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 expect to last for a continuous period of not less than

12 months.” 42 U.S.C. § 423(d)(1)(A); see also Shaw v. Chater,

221 F.3d 126, 131–32 (2d Cir. 2000). The impairment must be of

“such severity” that the claimant is not only unable to do her

previous work, but also unable to engage in any other kind of

substantial work which exists in the national economy. 42

U.S.C. § 423(d)(2)(A). “[S]everity” is assessed in view of the

“combined effect of all of the individual's impairments [and]

without regard to whether any such impairment, if considered

separately, would be of such severity.” 42 U.S.C. §

423(d)(2)(B).

“The Commissioner must consider the following in

determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings; (2) diagnoses or

medical opinions based on such facts; (3) subjective evidence of

pain or disability... ; and (4) the claimant’s education

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999)).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s condition meets the Act’s

definition of disability. See 20 C.F.R. § 404.1520. During

this five-step process, the Commissioner must consider whether

“the combined effect of any such impairment . . . would be of

sufficient severity to establish eligibility for Social Security

benefits.” 20 C.F.R. § 404.1523. Further, if the Commissioner

does find a combination of impairments, the combined impact of

the impairments, including those that are not severe (as defined

by the regulations), will be considered in the determination

process. 20 C.F.R. § 416.945(a)(2).

In steps one through four of the sequential five-step

framework, the claimant bears the “general burden of proving

disability.” Burgess, 537 F.3d at 128; see also DeChirico v.

Callahan, 134 F. 3d 1177, 1179-80 (2d Cir. 1998). In step five,

the burden shifts from the claimant to the Commissioner,

requiring that the Commissioner show that, in light of the

claimant’s residual functional capacity (“RFC”), age, education,

and work experience, the claimant is “able to engage in gainful

employment within the national economy.” Sobolewski v. Apfel,

985 F. Supp. 300, 310 (E.D.N.Y. 1997).

DISCUSSION

I. The ALJ’s application of the Sequential Five-Step Analysis

At step one, the ALJ found that plaintiff had not

engaged in substantial gainful activity since April 20, 2013,

the alleged onset date. (Tr. 14.)

At step two, the ALJ found that plaintiff had the

following severe impairments: lumbar and cervical degenerative

disc disease and history of cervical herniation; osteoarthritis;

pancreatitis; history of hepatomegaly; asthma and chronic

bronchitis; PTSD; depression; alcohol abuse; and, recently

diagnosed diabetes with neuropathy. (Id.)

At step three, the ALJ found that plaintiff did not

have an impairment or a set of impairments that met the severity

of one of the listed impairments in 20 C.F.R. Part 202, Subpart

P, App’x 1. (Tr. 15-16.) The ALJ considered whether plaintiff

was disabled under listing § 12.04 (Depression, Bipolar and

related disorders), and concluded that plaintiff did not satisfy

the requirements of “paragraph B” because she did not have

either two “marked” limitations or one “extreme” limitation, and

the evidence failed to establish the presence of “paragraph C”

criteria. 3 (Id.)

At step four, the ALJ determined that plaintiff would

not be able to perform her past relevant work as a supervisor,

caretaker or tax coordinator. (Tr. 21-22; ECF. No. 18-1 at 2.)

Plaintiff had previously performed a skilled job at the light

exertional level. (Tr. 22.) The ALJ found that plaintiff was

limited to unskilled, sedentary work, where interaction with

others is kept to a minimum. (Tr. 22.)

At step five, the ALJ found that plaintiff was able to

perform a variety of jobs that existed in significant numbers,

3 An ALJ’s failure to explain his reasoning for finding that a plaintiff did

not meet the paragraph C criteria can be grounds for remand, see Bohn v.

Comm'r of Soc. Sec., No. 10-CV-1078 (TJM) (DEP), 2012 WL 1048607, at *10

(N.D.N.Y. Mar. 5, 2012), this is not the case when “ALJ's reasons can be

discerned from other steps in the ALJ's analysis or from the evidence in the

record.” Howarth v. Berryhill, No. 3:16-CV-1844 (JCH), 2017 WL 6527432, at

*5 (D. Conn. Dec. 21, 2017); see also Berry v. Schweiker, 675 F.2d 464, 468

(2d Cir. 1982). Paragraph C requires proof that plaintiff has “a minimal

capacity to adapt to changes in his environment or to demands that are not

already part of his [or her] daily life.” Gabriel C. v. Comm'r of Soc. Sec.,

No. 18-CV-671 (ATB), 2019 WL 4466983, at *8 (N.D.N.Y. Sept. 18, 2019.) In

this case, the ALJ explained that “[Plaintiff] remains capable of performing

activities of daily living” and while she has suffered from mental

challenges, “[n]otations indicate the claimant responded well to medication”

and has seen improvement in her PTSD and depression symptoms. (Tr. 21.) The

ALJ references evidence from two psychological consultants who had indicated

that plaintiff had the “ability to function on a daily basis,” could

“maintain a regular schedule, [and] was able to learn new tasks.” (Tr. 21-

22.) These findings, along with the ALJ’s thorough discussion of Paragraph

B, support the ALJ’s determination that the plaintiff did not meet the

requirements of paragraph C. See Figueroa v. Saul, No. 18-CV-4534 (JLC),

2019 WL 4740619, at *23 (S.D.N.Y. Sept. 27, 2019).

in the national economy. (Tr. 23.) After considering the

Medical-Vocational guidelines, Dictionary of Occupational Titles

and hearing testimony from a vocational expert, the ALJ

determined that plaintiff is able to perform sedentary,

unskilled SVP 2 occupations, including a sorter (80,000 jobs in

the national economy), stuffer (180,000 jobs in the national

economy); and hand bander (85,000 jobs in the national economy).

Based on the forgoing analysis, the ALJ decided

plaintiff has not been disabled, as defined by the Social

Security Act, from April 20, 2013 through the date of the

decision. (Tr. 24.)

II. The ALJ did not commit error when he assigned Dr. Kropsky’s

opinion little weight.

First, plaintiff contends that the ALJ committed legal

error when he gave consulting examiner Benjamin Kropsky’s

opinion “little weight.” (ECF No. 15 at 3; Tr. 20.) Plaintiff

asserts that, because Dr. Kropsky’s examination and opinion was

more thorough than that of the other consulting examiner, Dr.

Yevsikova4, to whom the ALJ assigned “partial weight,” the ALJ’s

determination was erroneous. (ECF No. 15 at 3.) The court

respectfully disagrees with plaintiff’s contentions and finds

4 The ALJ assigned Dr. Yevsikova’s opinion partial weight, noting that Dr.

Yevsikova performed a one-time exam and the opinion was consistent with the

ability to perform sedentary or light work. The ALJ correctly noted that,

though plaintiff appeared at the July 28, 2015 exam using a cane, treatment

records dated July 20, 2015, less than two weeks earlier, indicated that

plaintiff could walk independently. (Tr. 20.)

that the ALJ did not err in assigning Dr. Kropsky’s opinion

little weight while assigning Dr. Yevsikova partial weight.

When deciding how much weight to assign opinions that

do not justify controlling weight, an ALJ typically considers

“(i) the frequency of the examination and the length, nature,

and extent of the treatment relationship; (ii) the evidence in

support of the opinion; (iii) the opinion's consistency with the

record as a whole; and (iv) whether the opinion is from a

specialist.” Galletti v. Colvin, No. 13-CV-6641 (WFK), 2015 WL

4251257, at *3 (E.D.N.Y. July 13, 2015) (citing 20 C.F.R. §§

404.1527(c)(2) and 416.927(c)(2).) Generally, when an ALJ is

evaluating the weight being given to a physician, “the less

consistent that opinion is with the record as a whole, the

less weight it will be given.” Snell v. Apfel, 177 F.3d 128,

133 (2d Cir. 1999). Dr. Kropsky saw plaintiff only once and was

not a treating source. (ECF. No. 18-1 at 11; Tr. 958.)

The ALJ properly assigned Dr. Kropsky’s opinion

“little weight” in part because Dr. Kropsky’s finding that

plaintiff could not lift any weight was inconsistent with

plaintiff’s testimony at the administrative hearing that she

could lift 5 to 10 pounds. (Tr. 20, 76, 960.) Further, other

evidence in the record contradicted Dr. Kropsky’s findings of

extreme limitations on plaintiff’s ability to lift any weight.

(Tr. 20, 76, 482, 541, 958, 1180-83.) Though plaintiff

correctly notes that testing performed by Dr. Kropsky assessed

plaintiff’s muscle response, not overall strength,5 the ALJ’s

finding was not erroneous because it supported the finding that

plaintiff has basic mobility and is able to use her arms and

hands to lift, carry, and support some level of weight. (ECF

No. 15 at 4-5; Tr. 20.) Furthermore, the ALJ cited findings in

2017 which found that plaintiff possessed normal muscle

strength, gait and station. (Tr. 20, 1180-83.)

In addition, the ALJ did not err in assigning “partial

weight” to the opinion of Dr. Yevsikova. (Tr. 19-20.)

Plaintiff cites precedent from Curry v. Apfel, that a statement

that plaintiff’s condition is “moderate” is too vague to support

an ALJ determination. (ECF. No. 15 at 4.) Though use of the

terms “moderate” to describe a plaintiff’s conditions can be

grounds for discounting an opinion, this is not the case when

the rest of a physician’s opinion contains objective medical

evidence. Dier v. Colvin, No. 13-cv-502 (WMS), 2014 WL 2931400,

at *4 (W.D.N.Y. June 27, 2014); Tudor v. Comm'r of Soc. Sec.,

No. 12-cv-2795 (SJF), 2013 WL 4500754, at *12 (E.D.N.Y. Aug. 21,

2013) (“[when a physician’s] opinion was supported by additional

information, i.e., objective medical findings, her opinion was

5 See Usker Naqvi, Muscle Strength Grading, NCBI,

https://www.ncbi.nlm.nih.gov/books/NBK436008/ (last visited June 21, 2020.)

not vague and provided an adequate basis for the ALJ to infer

that plaintiff is capable of performing the exertional

requirements of sedentary work.”) Contrary to plaintiff’s

assertion, Curry does not support plaintiff’s argument because

it was decided in a situation where there was not additional,

specific information for an ALJ to evaluate. Curry v. Apfel,

209 F.3d 117, 123 (2d Cir. 2000) (“use of the terms ‘moderate’

and ‘mild,’ without additional information, does not permit the

ALJ . . . to make the necessary inference that Curry can perform

the exertional requirements of sedentary work.”) (emphasis

added).

Plaintiff is correct that one line of Dr. Yevsikova’s

opinion that the claimant “has [a] limitation to prolonged

sitting, climbing, kneeling, bending, pulling pushing, heavy

lifting, heavy carrying” is not specific enough to guide an ALJ

in determining the degree of this limitation. (Tr. 542; ECF.

No. 15 at 3-4.) Dr. Yevsikova made, however, specific findings

that plaintiff had 5/5 strength in her upper extremities, had

full hand and finger dexterity, was able to get on and off the

exam table without difficulty, and had knee pain that is

alleviated with medication. (Tr. 540-41.) The report also

contained details of plaintiff’s medical condition, including

specific evidence concerning plaintiff’s musculoskeletal system

and her ability to walk, sit, stand, grip objects and perform

activities of daily life. (Tr. 538-542.) This evidence was

sufficient for the ALJ to assign partial weight to Dr.

Yevsikova’s opinion.

III. Plaintiff’s challenge to the ALJ’s appointment was not

timely and was therefore waived.

In the alternative, plaintiff asserts that the court

should remand the case to a different ALJ because the ALJ who

presided over plaintiff’s case was unconstitutionally appointed.

(ECF. No. 15 at 6-10.) Though the Commissioner does not dispute

the constitutionality of the ALJ’s appointment, he asserts that

plaintiff’s argument is untimely because plaintiff failed to

raise the Appointments Clause issue at the administrative level.

(ECF. No. 17 at 10-15.) For the reasons set forth below, the

court finds that plaintiff has waived her present challenge to

the ALJ’s appointment because she failed to raise the issue

before the SSA.

On June 18, 2018, in Lucia v. Securities and Exchange

Commission, the United States Supreme Court held that ALJs

working for the SEC are “inferior officers,” and thus subject to

the Appointments Clause of the United States Constitution (the

“Appointments Clause”). Under the Appointments Clause, Congress

may vest the power to appoint an inferior officer in the

President, the courts, or the heads of departments. Lucia v.

SEC, 138 S. Ct. 2044 (2018). Thus, the appointment of an ALJ by

an SEC staff member, rather than by a party duly vested with

that power pursuant to the United States Constitution, does not

comply with the Appointments Clause, and the appropriate remedy

is to require a new hearing before the SEC or another ALJ who

had been constitutionally appointed. Id.

Though Lucia did not specifically address the

constitutional status of ALJs who work in other federal

agencies, including the SSA, the Lucia decision prompted the

Acting Commissioner of the SSA, on July 16, 2018, to ratify the

appointments of ALJs as her own. See Social Security Ruling 19-

1p: Titles II and XVI: Effect of the Decision in Lucia v.

Securities and Exchange Commission (SEC) on Cases Pending at the

Appeals Council, 84 F.R. 9582-02 (“Ruling 19-1p”) (eff. Mar. 15,

2019). The Acting Commissioner did the same with respect to

administrative appeals judges (“AAJs”) who work at the Appeals

Council. Id. Ruling 19-1p clarified that the SSA would

consider a “timely administrative challenge to the ALJ’s

authority based on the Appointments Clause” as “a broad policy

or procedural issue that may affect the general public

interest,” which is reviewable by the Appeals Council under the

regulations. Id. (emphasis added).

Ruling 19-1p sets forth the mechanism by which a

claimant may bring an Appointments Clause challenge to the ALJ

who reviewed her case:

The Appeals Council will grant the claimant’s

request for review in cases where the claimant: (1)

timely requests Appeals Council review of an ALJ’s

decision or dismissal issued before July 16, 2018;

and (2) raises before us (either at the Appeals

Council level, or previously had raised at the ALJ

level) a challenge under the Appointments clause to

the authority of the ALJ who issued the decision or

dismissal in the case.

Id. In such cases where the claimant filed a timely request for

review of an Appointments Clause challenge, the Appeals Council

may vacate the ALJ’s decision or dismissal, conduct a new and

independent review of the claims file and remand the case to a

different ALJ, or issue its own decision regarding the claim. Id.

Further, as noted by the government, “the vast

majority of courts that have considered this issue following

Lucia . . . have concluded that exhaustion before the ALJ is

required.” Bonilla-Bukhari v. Berryhill,357 F. Supp. 3d 341,

351 (S.D.N.Y. 2019) (collecting cases). Most courts within the

Second Circuit that have directly addressed the timing issue

have also concluded that an Appointments Clause challenge must

be raised “at the administrative level.” See Nestor v. Comm'r

of Soc. Sec., No. 19-CV-580 (BMC), 2019 WL 4888649, at *3

(E.D.N.Y. Oct. 3, 2019) (“[A] Social Security claimant who fails

to raise an Appointments Clause challenge to an ALJ’s

appointment at the administrative level waives this

challenge.”); Doobay v. Comm'r of Soc. Sec., No. 19-CV-70 (AMD),

2020 WL 1031377, at *3 (E.D.N.Y. Mar. 3, 2020) (noting that

plaintiff in Lucia made a timely challenge by contesting the

validity of an ALJ’s appointment before the Commission, and

adopting the majority view regarding waiver); Mungin v. Saul,

No. 19-CV-233, 2020 WL 549089, at *4 (D. Conn. Feb. 4, 2020)

(“The plaintiff forfeited her Appointments Clause challenge by

failing to raise this claim at the administrative level.”);

Stearns v. Berryhill, No. 17-CV-2031 (LTS), 2018 WL 4380984, at

*5 (N.D. Iowa Sept. 14, 2018) (“In Lucia, the Supreme Court

acknowledged the challenge was timely because it was made before

the Commission. . . . In the context of Social Security

disability proceedings, that means the claimant must raise the

issue before the ALJ's decision becomes final.”).

Although there has been some disagreement as to

whether a claimant must bring an Appointments Clause challenge

before the ALJ or can bring it, for the first time, on appeal

before the Appeals Council, that distinction is immaterial here,

where plaintiff failed to raise her Appointments Clause

challenge at any time during the administrative proceedings.

Plaintiff’s counsel apparently disputes that plaintiff had an

opportunity to raise her Appointments clause challenge during

the administrative proceedings, (ECF No. 15 at 9-10), but the

court finds this argument unavailing. Though plaintiff’s

failure to raise the Appointments Clause issue before the ALJ

may have been excusable, plaintiff’s failure to raise the issue

to the Appeals Council constituted waiver under Ruling 19-1p and

was unjustified under these facts.

First, plaintiff did not receive notice of the Appeals

Council’s denial of her request for review until January 11,

2019, more than six months after the Supreme Court decided

Lucia. Second, a natural, appropriate opportunity for plaintiff

to have raised this issue would have been in plaintiff’s July

23, 2018 brief to the Appeals Council, which was submitted

approximately one month after Lucia, or in the two week-period

before the Appeals Council stopped accepting additional

evidence.6 (Tr. 1-6.) Third, plaintiff’s counsel proffers no

reason why plaintiff could not have raised the Appointments

Clause issue during the administrative proceedings.

As in McMorris v. Commissioner, here, “[p]laintiff’s

representative was certainly on notice that SSA ALJs ostensibly

might be considered inferior officers . . . . If Plaintiff

wanted to contest the ALJ’s appointment, the matter should have

first been brought up in the administrative proceeding, not in

6 The court respectfully rejects the Commissioner’s contention that plaintiff

“should have been on notice of the [Appointments Clause issue] as far back as

December 2016,” when the Tenth Circuit issued a decision finding that the SEC

ALJs’ appointments were unconstitutional, which created a circuit split by

June 2017, when Lucia v. SEC, 868 F.3d 1021, was decided by the District of

Columbia Circuit.

federal court.” McMorris v. Comm'r of Soc. Sec., No. 18-CV-6118

(DB), 2019 WL 2897123, at *11 (W.D.N.Y. June 26, 2019).

Further, plaintiff’s reliance on the Sims v. Apfel

line of cases is inapt. In Sims v. Apfel, the United States

Supreme Court held that social security “[c]laimants who exhaust

[their] administrative remedies need not also exhaust issues in

a request for review by the Appeals Council in order to preserve

judicial review of those issues.” Sims, 530 U.S. 103, 112

(2000). Sims does not shed light on the situation here, where

plaintiff not only failed to exhaust issues in a request for

review by the Appeals Council, but also failed to raise them

before the ALJ. As numerous courts within the Second Circuit

have noted, “Sims did not address the situation where the

claimant fails to raise the issue both before the ALJ and the

Appeals Council.” McMorris, 2019 WL 2897123, at *11 (citing

Bonilla-Bukhari, 357 F. Supp. 3d at 350) (collecting cases).

Contrary to the few out-of-circuit cases cited in

plaintiff’s brief, the weight of authority within this circuit

requires a social security claimant to exhaust issues for review

at the administrative level. Lewis v. Berryhill, 2018 WL

1377303, at *4; Watson v. Astrue, 2010 WL 1645060, at *3

(S.D.N.Y. Apr. 22, 2010) (“Although it appears that the Second

Circuit has not yet ruled on this precise issue, a number of

district courts in this Circuit have found that failure to raise

an issue before the ALJ waives that issue’s review by the

District Court.”); cf. Marchant on behalf of A.A.H. v.

Berryhill, No. 18-CV-345, 2019 WL 2268982, at *3-7 (E.D. Pa. May

28, 2019) (adopting the majority view requiring that

Appointments Clause issue be raised during administrative

proceedings). There is also an important practical element to

SSA’s requirement of issue exhaustion, as noted by one New York

federal district court: “[T]he Commissioner and the public have

a very strong interest in having Appointments Clause issues

raised by counsel during the administrative process [because]

the SSA receive[s] millions of applications for benefits each

year, and the SSA must make decisions efficiently in order to

ensure that the system continues to work[.]” Danielle R. v.

Comm'r of Soc. Sec., No. 19-CV-538 (ATB), 2020 WL 2062138, at *8

(N.D.N.Y. Apr. 29, 2020) (internal quotation marks and citation

omitted).

The court is also unconvinced that plaintiff’s failure

to exhaust the Appointments Clause issue should be “excused

because it would have been futile.” (ECF No. 15, at 9.)

Contrary to plaintiff’s assertion, as the court noted above, a

timely raised Appointments Clause challenge is governed by

Ruling 19-1p, and would have been properly reviewed by the

Appeals Council, and there is no value to speculating as to how

the Appeals Council would have resolved the issue. For the

reasons set forth above, the court finds that plaintiff has

waived her present challenge to the ALJ’s appointment because

she failed to raise the issue before the SSA.

CONCLUSION

For the foregoing reasons, the court finds that the

ALJ’s conclusion, that plaintiff has not been disabled since

April 20, 2013, within the meaning of the Act, was supported by

substantial evidence and was not based on any legal error. The

court also finds that plaintiff waived the Appointments Clause

issue by failing to raise it before the ALJ and the Appeals

Council; thus, there is no basis to remand the case to the SSA.

Accordingly, plaintiff’s motion for judgment on the pleadings is

respectfully DENIED and the Commissioner’s cross-motion on the

pleadings is GRANTED. The Clerk of Court is respectfully

directed to enter judgment, dismissing the case, and to close

the case.

SO ORDERED.

Dated: July 8, 2020

Brooklyn, New York

_________/s/_________________

Kiyo A. Matsumoto

United States District Judge