# Vazquez v. Commissioner of Social Security

> District Court, E.D. New York · July 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10304471

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X

Nancy Vazquez,

Plaintiff, MEMORANDUM AND ORDER

19-CV-1613 (KAM)
- against -

COMMISSIONER OF SOCIAL SECURITY,

Defendant.
--------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304471. Public record. Not legal advice.