Morgan v. Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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GLENN DAVID MORGAN,

Plaintiff,

MEMORANDUM AND ORDER

-against- 20-CV-04554 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Glenn Morgan (“Plaintiff”) appeals the final

decision of the Commissioner of Social Security (“defendant”),

which found Plaintiff not disabled and thus not entitled to

disability insurance benefits (“DIB”) under sections 216(i) and

223(d) of the Social Security Act (“the Act”).

Presently before the court is plaintiff’s motion for

judgment on the pleadings and memorandum of law, (ECF No. 15,

Plaintiff’s Motion for Judgment on the Pleadings; ECF No. 15-1,

Memorandum in Support of Motion for Judgment on the Pleadings

(“Pl. Mem.”)), defendant’s cross-motion for judgement on the

pleadings and memorandum of law, (ECF No. 16, Cross-Motion for

Judgment on the Pleadings; ECF No. 16-1 Memorandum in Support of

Cross-Motion for Judgment on the Pleadings (“Def. Mem.”)), and

plaintiff’s reply memorandum of law in support of plaintiff’s

motion for judgment on the pleadings, (ECF No. 17, (Pl.

Reply”).) For the reasons set forth below, Plaintiff’s motion

for judgment on the pleadings is respectfully DENIED and the

Commissioner’s motion for judgment on the pleadings is GRANTED.

BACKGROUND

The parties submitted a Joint Stipulation of Facts

detailing Plaintiff’s medical history and the administrative

hearing testimony, which the court hereby incorporates by

reference. (See ECF No. 16-2, Joint Stipulation of Facts

(“Stip.”).)

Plaintiff was born on September 24, 1961. (ECF No.

18, Administrative Transcript (“Tr.”) at 248.) Plaintiff worked

as a “patient navigator”, transporting patients within Northwell

Health Long Island Jewish Hospital in Queens, New York from 1984

to 2018. (Id. at 261.) Plaintiff filed an application for DIB

on June 4, 2018, alleging a disability beginning May 2, 2018.

(ECF No. 18, Administrative Transcript (“Tr.”) 173-76.)

Plaintiff alleged impairments from schizoaffective disorder

bipolar type, memory problems, anxiety and depression, poverty

of speech, and hand tremors or shaking. (Id. at 211.)

Plaintiff’s claims were denied on October 3, 2018. (Id. at 83-

88.) On November 1, 2018, plaintiff requested a hearing before

an administrative law judge (“ALJ”). (Id. at 91-92.)

Plaintiff’s hearing took place before ALJ Gloria Pellegrino on

September 4, 2019. (Id. at 34-66.) Plaintiff appeared and

testified from Jamaica, New York, and was represented by his

attorney, John Moran. (Id.) The ALJ, vocational expert, and

Plaintiff’s wife Dinah Morgan were also present and testified.

(Id.)

On October 18, 2019, the ALJ found that Plaintiff was

not disabled under the Social Security Act. (Id. at 7-27.) On

November 15, 2019, plaintiff requested review of the ALJ’s

decision (id. at 161-67), which the Appeals Council denied on

July 25, 2020, thus making the ALJ’s decision the final decision

of the Commissioner. (Id. at 1-6.) This appeal followed. (See

generally ECF No. 1, Complaint (“Compl.”).)

LEGAL STANDARD

A claimant must be “disabled” within the meaning of

the Act to receive disability benefits. See 42 U.S.C. §§

423(a), (d). A claimant qualifies as disabled when he 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

expected to last for a continuous period of not less than 12

months.” Id. § 423(d)(1)(A); Shaw v. Chater, 221 F.3d 126, 131–

32 (2d Cir. 2000). The impairment must be of “such severity”

that the claimant is unable to do [his] previous work or engage

in any other kind of substantial gainful work. 42 U.S.C. §

423(d)(2)(A).

The regulations promulgated by the Commissioner

prescribe a five-step sequential evaluation process for

determining whether a claimant meets the Act’s definition of

disabled. See 20 C.F.R. § 404.1520. The Commissioner’s process

is essentially as follows:

[I]f the Commissioner determines (1) that the claimant

is not working, (2) that [s]he has a ‘severe impairment,’

(3) that the impairment is not one [listed in Appendix

1 of the regulations] that conclusively requires a

determination of disability, and (4) that the claimant

is not capable of continuing in [her] prior type of work,

the Commissioner must find [her] disabled if (5) there

is not another type of work the claimant can do.

Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (quoting

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003));

accord 20 C.F.R. § 404.1520(a)(4). If the ALJ determines that

the claimant is or is not disabled at any step, the analysis

stops.

“The claimant has the general burden of proving . . .

his or her case at steps one through four of the sequential

five-step framework established in the SSA regulations.”

Burgess, 537 F.3d at 128 (internal quotation marks and citations

omitted). “However, [b]ecause a hearing on disability benefits

is a nonadversarial proceeding, the ALJ generally has an

affirmative obligation to develop the administrative record.”

Id. (internal quotation marks omitted). “The burden falls upon

the Commissioner at the fifth step of the disability evaluation

process to prove that the claimant, if unable to perform [her]

past relevant work [and considering her residual functional

capacity, age, education, and work experience], is able to

engage in gainful employment within the national economy.”

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

“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 educational

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) (alterations in original)). If

the Commissioner finds a combination of impairments, the

Commissioner must also consider whether “the combined effect of

all of [a claimant’s] impairment[s]” establish the claimant’s

eligibility for Social Security benefits. 20 C.F.R. §

404.1523(c); see also id. § 416.945(a)(2).

Unsuccessful claimants for disability benefits may

bring an action in federal court seeking judicial review of the

Commissioner’s denial of their benefits. 42 U.S.C. §§ 405(g),

1383(c)(3). 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). Rather, “[a] district court may

set aside the Commissioner’s determination that a claimant is

not disabled only if the factual findings are not supported by

‘substantial evidence’ or if the decision is based on legal

error.’” Burgess, 537 F.3d at 127 (quoting Shaw, 221 F.3d at

131 (citation omitted)).

“The substantial evidence standard means once an ALJ

finds facts, we can reject those facts ‘only if a reasonable

factfinder would have to conclude otherwise.’” Brault v. Soc.

Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (citations

omitted, emphasis in original). 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) (quoting Cruz

v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).

THE ALJ’S DISABILITY DETERMINATION

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by the SSA

regulations, the ALJ made the following determinations.

At step one, the ALJ determined that Plaintiff had not

engaged in substantial gainful activity from his alleged onset

date of May 2, 2018. (Tr. 12.) At step two, the ALJ determined

that Plaintiff had the severe impairments of degenerative disc

disease, cardiac disease, obesity, cataracts in both eyes,

amblyopia, speech impediment, schizoaffective disorder, bipolar,

anxiety, and depression. (Id. at 13.) The ALJ noted her

finding that Plaintiff’s hand tremors were non-severe because a

transcranial Doppler revealed normal direction and resistance of

flow and no evidence of stenosis in the anterior or posterior

circulations; Plaintiff’s neurology consult suggested no edema,

clubbing, or cyanosis in his upper extremities; and he showed

full strength in all upper extremity muscle groups with no

resting tremor. (Id.)

At step three, the ALJ determined that Plaintiff did

not have an impairment or combination of impairments that met or

medically equaled the severity of one of the listed impairments

of 20 C.F.R. Part 404, Subpart P, App’x 1. (Id.) Specifically,

the ALJ considered Plaintiff’s impairments under listings 1.04

(disorders of the spine), 2.02, 2.03, and 2.04 (visual

impairments), 4.00, 4.02, 4.04, 4.05, 4.06, 4.09, 4.10, 4.11,

and 4.12 (cardiovascular impairments), 12.03 (schizophrenia

spectrum and other psychotic disorders), 12.04 (depressive,

bipolar and related disorders), and 12.06 (anxiety and

obsessive-compulsive disorders). (Id. at 13-14.)

The ALJ determined as follows. Plaintiff did not meet

listing 1.04 because the medical evidence did not indicate nerve

root compression, spinal arachnoiditis, or lumbar spinal

stenosis, and because Plaintiff could ambulate effectively.

(Id. at 13.) Plaintiff did not meet listings 2.02, 2.03, or

2.04 as the medical evidence did not demonstrate vision after

best correction of 20/200 or less, a visual field with the

widest diameter subtending an angle around the point of fixation

to be no greater than 20 degrees, an MD of 22 decibels or

greater, a visual efficiency of 20 percent or less after

correction, or an impairment valued at 1.00 or greater after

best correction. (Id.) Plaintiff’s cardiovascular impairments

did not meet or medically equal the considered cardiovascular

impairments. (Id.) Plaintiff did not meet listing 12.03, 12.04

or 12.06 because he had only moderate limitations in

understanding, remembering, and applying information, in

interacting with others, and in concentrating, persisting, and

maintaining pace, and mild limitations in adapting and managing

himself—as opposed to marked or extreme limitations in these

areas of functioning. (Id. at 14-15.) Moreover, there was no

evidence that Plaintiff had only a marginal capacity to adapt to

changes in his environment. (Id. at 15.)

Next, the ALJ determined that Plaintiff had the

residual functional capacity (“RFC”) to perform medium work.

(Id.) To this RFC, the ALJ added several exertional

limitations, including that Plaintiff cannot perform work that

requires fine visual acuity, depth perception, peripheral

vision, or color perception, though he retains sufficient visual

acuity to read large print (14-point font or larger), work with

large objects, and avoid workplace hazards. (Id.) Plaintiff

also cannot be exposed to hazards, such as dangerous moving

machinery or unprotected heights. (Id.) The ALJ also added

several non-exertional limitations, including performing simple,

routine, and repetitive tasks and only occasional contact with

the public. (Id.) Based upon the RFC finding, the ALJ

determined that Plaintiff was incapable of performing his past

relevant work as a transporter, or hospital navigator. (Id. at

21.)

At step five, the ALJ concluded that given Plaintiff’s

age, education, and RFC, jobs existed in significant numbers in

the national economy that Plaintiff could perform. (Id.) The

ALJ supplied the vocational expert with the above information,

who determined that Plaintiff could perform the requirements of

representative occupations like hospital cleaner and order

runner. (Id. at 22.) The ALJ thus concluded that Plaintiff was

not disabled within the meaning of the Act. (Id.)

DISCUSSION

Plaintiff contends that the ALJ failed to properly

evaluate the medical opinion evidence and failed to properly

evaluate the subjective statements of Plaintiff and his wife.

(ECF No. 15, Plaintiff’s Memorandum (“Pl. Mem.”), at 1-16.)

I. Weighing of Medical Opinion Evidence

A. New Regulations Regarding Evaluation of Medical

Opinion Evidence

Previously, the SSA followed the “treating physician

rule,” which required the agency to give controlling weight to a

treating source's opinion, so long as it was “well-supported by

medically acceptable clinical and laboratory diagnostic

techniques” and not “inconsistent with the other substantial

evidence” in the record. 20 C.F.R. § 416.927(c)(2). The 2017

regulations changed this standard for DIB applications filed “on

or after March 27, 2017.” Id. § 404.927. As Plaintiff’s claim

was filed on June 4, 2018, the new regulations apply to this

action. (Tr. 173-76.)

Pursuant to the new regulations, the Commissioner will

no longer “defer or give any specific evidentiary weight,

including controlling weight, to any medical opinion(s) or prior

administrative medical finding(s), including those from [a

claimant's] medical sources.” 20 C.F.R. § 404.1520c(a).

Instead, when evaluating the persuasiveness of medical opinions,

the Commissioner will consider the following five factors: (1)

supportability; (2) consistency; (3) relationship of the source

with the claimant, including length of the treatment

relationship, frequency of examination, purpose of the treatment

relationship, extent of the treatment relationship, and whether

the relationship is an examining relationship; (4) the medical

source's specialization; and (5) other factors, including but

not limited to “evidence showing a medical source has

familiarity with the other evidence in the claim or an

understanding of [the SSA] disability program's policies and

evidentiary requirements.” Id. § 404.1520c(c)(5).

The most important factors of a medical opinion in

evaluating persuasiveness are supportability and consistency.

Id. § 404.1520c(a). With respect to the supportability factor,

the regulations provide that “[t]he more relevant the objective

medical evidence and supporting explanations presented by a

medical source are to support his or her medical opinion(s) or

prior administrative medical finding(s), the more persuasive the

medical opinions or prior administrative medical finding(s) will

be.” Id. § 404.1520c(c)(1). As to the consistency factor, the

regulations provide that “[t]he more consistent a medical

opinion(s) or prior administrative medical finding(s) is with

the evidence from other medical sources and nonmedical sources

in the claim, the more persuasive the medical opinion(s) or

prior administrative medical finding(s) will be.” Id.

§ 404.1520c(c)(2).

The ALJ must articulate her consideration of the

medical opinion evidence, including how persuasive she finds the

medical opinions in the case record. Id. at § 404.1520c(b).

“Although the new regulations eliminate the perceived hierarchy

of medical sources, deference to specific medical opinions, and

assigning ‘weight’ to a medical opinion, the ALJ must still

articulate how [he or she] considered the medical opinions and

how persuasive [he or she] find[s] all of the medical opinions.”

Andrew G. v. Comm'r of Soc. Sec., No. 19-cv-0942 (ML), 2020 WL

5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (quotations and citation

omitted). Specifically, the ALJ must explain how she considered

the “supportability” and “consistency” factors for a medical

source's opinion. 20 C.F.R. §§ 404.1520c(b)(2). The ALJ may,

but is not required to, explain how she considered the remaining

factors. Id. When the opinions offered by two or more medical

sources about the same issue are “both equally well-supported

... and consistent with the record ... but are not exactly the

same,” however, the ALJ shall articulate how he considered the

remaining factors in evaluating the opinions. 20 C.F.R.

§ 404.1520c(b)(3).

Even though ALJs are no longer directed to afford

controlling weight to treating source opinions—no matter

how well supported and consistent with the record they

may be—the regulations still recognize the “foundational

nature” of the observations of treating sources, and

“consistency with those observations is a factor in

determining the value of any [treating source's]

opinion.”

Soto v. Comm'r of Soc. Sec., No. 19-cv-4631 (PKC), 2020 WL

5820566 (E.D.N.Y. Sept. 30, 2020) (quoting Shawn H. v. Comm'r of

Soc. Sec., No. 19-cv-113 (JMC), 2020 WL 3969879, at *6 (D. Vt.

July 14, 2020) (quoting Barrett v. Berryhill, 906 F.3d 340, 343

(5th Cir. 2018))).

B. The ALJ’s Assessment of Opinion Evidence

The ALJ discussed the medical opinion evidence offered

by six medical professionals, including the opinions offered by

Daniel Powsner, M.D., Gladys Frankel, Ph.D., Alicia Dee, N.P.1,

Robert Rahmani, M.D., Arelio Salon, M.D., and Howard Pomeranz,

M.D., along with several State agency medical consultants.2 (Tr.

18-20.) Plaintiff does not challenge the ALJ's assessment of

the State medical consultants;3 accordingly, the Court will focus

the analysis on the ALJ's assessment of the opinions offered by

the named medical professionals.

1 Under the new regulations, Nurse Practitioner Dee is considered an

“[a]cceptable medical source.” See 20 C.F.R. § 416.902(a) (defining

acceptable medical sources to include a “Licensed Advanced Practice

Registered Nurse, or other licensed advanced practice nurse with another

title, for impairments within his or her licensed scope of practice”).

2 The ALJ also considered evidence from Jeannine Gutierrez, O.D., which she

describes as an “opinion,” but Plaintiff contests is not an opinion as it

does not address Plaintiff’s abilities or limitations with regard to work.

(Tr. 18; Pl. Mem. at 9.)

3 The ALJ found each of the state agency medical consultants, who were limited

to reviewing of the medical evidence and did not examine Plaintiff, to be

unpersuasive. (Tr. 19-20.)

i. Dr. Powsner

Dr. Powsner is a board-certified psychiatrist who

treated Plaintiff for schizoaffective disorder, bipolar type for

several years. (Stip. at 2, Tr. 310-64.) The record indicates

that Dr. Powsner first saw Plaintiff in 2005. (Tr. 362.) He

submitted treatment notes from December 2015 to July 2019.

(Stip. at 2-10, Tr. 310-497.)

Dr. Powsner completed at “Psychiatric/Psychological

Impairment Questionnaire” on August 16, 2019. (Tr. 520-24.)

Dr. Powsner reported Plaintiff had been treated monthly since

May 1997 for schizoaffective disorder. (Id. at 520.) Dr.

Powsner predicted that Plaintiff’s diagnoses and limitations

were expected to last at least 12 months and that he was not a

malingerer. (Id. at 521.)

Dr. Powsner’s opined that Plaintiff had numerous

marked limitations in understanding and memory, concentration

and persistence, social interaction, and adaptation categories.

(Id. at 523.) He commented that “[a]fter sustaining employment

for many years, in past year [Plaintiff] has seemed confused at

the job, has difficulty following directions, & on at least one

occasion got into a physical altercation with a coworker.” (Id.

at 522.) Dr. Powsner also explained that Plaintiff can be an

“unreliable historian” due to psychiatric illness and that he

relied on collateral information from Plaintiff’s wife. (Id.)

The ALJ found Dr. Powsner’s opinion was “not

persuasive” because it was unsupported or inconsistent with the

medical evidence on the record. (Tr. 20.) The ALJ discussed

specific evidence in the record which was not consistent with

Dr. Powsner’s opinion, drawing from his treatment notes that

Plaintiff showed largely normal mental status examinations in

May 2018, September 2018, November 2018, and July 2019. (Id. at

17.) She also noted reported attention/concentration

improvement in November 2018 after a deficit in September and

July as well as a normal attention/concentration report in July

2019. (Id.) The ALJ also observed evidence that Plaintiff sees

Dr. Powsner only once a month and with his current medication

had no apparent psychotic symptoms. (Id.)

ii. Dr. Frankel

Dr. Frankel completed a consultative psychiatric

evaluation on August 23, 2018. (Tr. 377-81). She described

Plaintiff’s job as a patient navigator and his experiences of

“mental health problems, memory problems, concentration

problems,” “more pressure, saying he is too slow,” and feeling

“computer illiterate.” (Id. at 377.) Regarding “Current

Functioning” Dr. Frankel noted that Plaintiff rated his

depression as 4/10 (10 being the worst) and that “[d]epression

is because of being out of work,” pain, and diminished sense of

pleasure. (Id. at 378.) During the examination, Plaintiff’s

thought process was described as “coherent and goal directed,”

affect was euthymic, and insight and judgment were fair. (Id.

at 379.) Attention and concentration were essentially intact,

but Dr. Frankel reported plaintiff’s simple calculations as: “5

x 2 = 10, 3 x 4 = 9” and when serials 7s were administered,

Plaintiff “said 93 and then 85, 79, 72, and 65.” (Id.) Recent

and remote memory skills were found to be “mildly impaired.”

(Id.) Plaintiff was able to recount 1 out of 3 objects after a

delay and showed evidence of impaired concentration. (Id.) Dr.

Frankel also noted that Plaintiff dressed, bathed, and groomed

independently, could cook, clean, do laundry, shop, manage

money, and take public transportation, and occasionally roller

skated and bowled. (Id.)

Dr. Frankel opined that there were no limitations for

understanding, remembering, or applying simple and complex

directions and instructions; using reason and judgment to make

work-related decisions; interacting adequately with supervisors,

coworkers, and the public; sustaining an ordinary routine and

regular attendance at work; regulating emotions, controlling

behaviors, and maintaining well-being; maintaining personal

hygiene and appropriate attire; and being aware of normal

hazards and taking appropriate precautions; but that there were

moderate limitations for sustaining concentration and performing

a task at a consistent pace. (Id. at 380.) She also expected

the duration of the impairment and time frame for suggested

therapy to last more than one year. (Id.)

The ALJ found Dr. Frankel’s opinion “highly

persuasive,” because it was supported by a clinical examination

and consistent with the totality of the evidence. (Id. at 18-

19). The ALJ specifically cited the apparent improvement in

plaintiff’s concentration and attention as reported by Dr.

Powsner in November 2018. (Id. at 19, 420.)

iii. Nurse Practitioner Dee

NP Dee completed a “Multiple Impairment Questionnaire”

and a “Stroke Impairment Questionnaire” on August 21, 2019. (Tr.

575-80). NP Dee began treating Plaintiff in December of 2018

and saw him every three to four months. (Id. at 570.) She

listed PCA infracts, R homonymous hemianopia, and tremors as

diagnoses which she considered chronic. (Id. at 575.) NP Dee

identified tremor, R homonymous hemianopia, increased tone at

rest, and cogwheel rigidity with movement as positive clinical

findings. (Id. at 576.) Within a normal, competitive work

environment, NP Dee determined that Plaintiff could sit and

stand intermittently for an hour only and lift or carry up to

ten pounds occasionally, but that he could tolerate low work

stress. (Id. at 578-79.) On average, she estimated Plaintiff

would be absent from work more than three times per month. (Id.

at 579).

The ALJ found unpersuasive NP Dee’s opinion that

Plaintiff could only occasionally lift and carry up to 10 pounds

and would need to take substantial unscheduled breaks and

absences. (Id. at 20.) As the ALJ considered the described

limitations to be severe, she found they were not supported by

objective evidence and were inconsistent with other evidence on

the record, such as an August 2018 examination finding 5/5 power

in all muscle groups and no cogwheel rigidity. (Id. at 369.)

iv. Dr. Rahmani

Dr. Rahmani is a board-certified internist with a

specialty in cardiovascular disease. (Stip. at 13.) He

completed a “Cardiac Impairment Questionnaire” on August 22,

2019. (Tr. 551-56). Dr. Rahmani first treated Plaintiff in

April 2019, seeing him every three months. (Id. at 551.) Dr.

Rahmani did not diagnose Plaintiff with coronary artery disease

or congestive heart failure, but he noted Plaintiff had

experienced a cardiovascular accident and experienced fatigue,

weakness, unsteady gait, and frequent leg pain. (Id. at 550-

52.) Within a normal, competitive work environment, Dr. Rahmani

opined Plaintiff could work while seated or standing less than

one hour per day. (Id. at 553.) He reported that Plaintiff

could occasionally lift up to ten pounds. (Id.) Dr. Rahmani

indicated that Plaintiff had not undergone any corrective

cardiac procedures, but that he has an internal loop recorder.

(Id. at 554.) On average, he estimated Plaintiff would be

absent from work more than three times per month. (Id. at 555).

The ALJ found unpersuasive Dr. Rahmani’s opinion

regarding plaintiff’s breaks, absences, and lifting limitations.

(Id. at 20.) The ALJ found these severe limitations to be

unsupported by the objective evidence and inconsistent with Dr.

Rahmani’s own findings from his May 2019 visit and report which

showed a normal pharmacologic stress nuclear study, a normal

single-photon emission computed tomography (“SPECT”) perfusion

imaging, and normal left ventricular systolic function, as well

as no evidence of arterial occlusive disease in the lower

extremities after an arterial duplex. (Id. at 449-50.)

v. Dr. Salon

Dr. Salon conducted a consultive internal medicine

examination on in August 2018. (Tr. 382-85). Dr. Salon

described Plaintiff’s daily activities, including cooking,

cleaning, doing laundry, and shopping, as well as showering and

dressing independently. (Id. at 383.) During the examination,

plaintiff’s gait was normal and he could walk on his heels and

toes without difficulty, squat fully, and get on and off the

exam table without assistance. (Id.) Dr. Salon noted dependent

fine tremors, but that hand and finger dexterity was intact with

5/5 bilateral grip strength. (Id. at 384.) In his source

statement, Dr. Salon opined that there were no objective

findings to support restrictions in sitting, standing, climbing,

pushing, pulling, or carrying heavy objects. (Id. at 385.)

The ALJ found that Dr. Salon’s opinion that there were

no objective findings to support a physical activity limitation

to be “highly persuasive,” because it was supported by a

clinical examination and consistent with the totality of the

evidence. (Id. at 19). The ALJ noted the spine x-ray finding

of minimal degenerative change and the exam demonstrating full

flexion, as well as several instances throughout Plaintiff’s

treatment history where his gait was reported to be normal.

(Id.)

vi. Dr. Pomeranz

Dr. Pomeranz is a board-certified ophthalmologist.

(Stip. at 12.) He first treated Plaintiff in January 2019.

(Tr. 514.) In a “Vision Impairment Questionnaire” completed

August 16, 2019, Dr. Pomeranz diagnosed Plaintiff with right

homonymous hemianopsia, left eye amblyopia, rotatory nystagmus,

and bilateral cataracts which he deemed “not likely to improve.”

(Id.) He opined that Plaintiff would be unable to perform tasks

that required normal peripheral vision and depth perception, but

that Plaintiff could read normal sized print and work with large

objects. (Id. at 517.) Dr. Pomeranz also indicated that

Plaintiff had significant limitations processing visual

information like computer screens, moving print, etc., avoiding

normal work hazards, walking on uneven terrain, and working with

small objects like keyboards, coins, or labels. (Id.)

The ALJ found Dr. Pomeranz’s opinion regarding

Plaintiff’s inability to perform tasks requiring normal

peripheral vision and depth perception to be highly persuasive.

(Id. at 18.) She found these limitations to be supported by

clinical examination findings and evidence from a consultative

examiner who also found right hemianopsia and amblyopia, among

other defects. (Id. at 18, 372-76.)

C. Analysis

The Court has reviewed the medical evidence in the

record, including the aforementioned opinions, as well as the

ALJ’s decision, and finds that the ALJ properly weighed the

medical evidence in the record, and her assessment of the RFC

based on this evidence is supported by substantial evidence. As

required by the new regulations, the ALJ explained her findings

regarding the supportability and consistency for each of the

opinions, pointing to specific evidence in the record supporting

those findings. See Raymond M. v. Comm'r of Soc. Sec., No. 19-

cv-1313 (ATB), 2021 WL 706645 (N.D.N.Y. Feb. 22, 2021) (“At

their most basic, the amended regulations require that the ALJ

explain her findings regarding the supportability and

consistency for each of the medical opinions, ‘pointing to

specific evidence in the record supporting those findings.’”)

(citation omitted.)

The ALJ found that the opinion regarding psychiatric

impairments offered by Dr. Frankel was better supported and more

consistent with the evidence than the opinion offered by Dr.

Powsner. Similarly, regarding physical restrictions, the ALJ

found the opinion of Dr. Salon more persuasive than those of NP

Dee and Dr. Rahmani which she found to be unsupported and

inconsistent with objective evidence. As explained above, the

new regulations eliminate the “treating physician rule,” and the

opinion of a consultative examiner may override the opinion of a

treating physician, particularly where the opinion of the

consultative examiner is better supported by the record. See

Jacqueline L. v. Comm'r of Soc. Sec., No. 19-cv-06786 (EAW),

2021 WL 243099 (W.D.N.Y. Jan. 26, 2021) (citing Netter v.

Astrue, 272 F. App’x 54, 55-56 (2d Cir. 2008)). Accordingly,

the ALJ’s evaluation of plaintiff’s psychiatric issues was

supported by substantial evidence.

Plaintiff further contends the relative persuasiveness

of the psychiatric opinions were erroneous because the ALJ

“relied entirely” on Dr. Frankel’s opinion based on a one-time

examination instead of Dr. Powsner’s long-term treating source

opinion. (Pl. Mem. at 7.) As explained by the ALJ, however,

she considered the opinions in light of the totality of the

evidence, including the contemporaneous observations of a

treating source, the treatment notes of Dr. Powsner, to

determine that Dr. Frankel’s opinion was more consistent with

the objective evidence. (Tr. 18.) Even if the treating

physician rule did apply in this instance, courts in this

circuit have found that inconsistency between the treating

physician’s assessment of severe limitations and treatment notes

can support the ALJ's decision to give less weight to the

treating physician’s opinion. See e.g., Pagan v. Colvin, No.

15-cv-3117 (HBP), 2016 WL 5468331, at *13 (S.D.N.Y. Sept, 29,

2016) (“[T]he ALJ provided good reasons for affording ‘little

weight’ to [the treating psychiatrist's] opinion, namely that it

was unsupported by [the treating psychiatrist's] own treatment

notes, which showed that plaintiff had overall normal mental

status examinations and there was general improvement in

plaintiff's mood and anxiety over the course of treatment.”);

Ayala v. Berryhill, No. 18-cv-124 (VB) (LMS), 2019 WL 1427398,

at *9 (S.D.N.Y. Mar. 12, 2019) report and recommendation adopted

sub nom. Ayala v. Comm'r of Soc. Sec. Admin., No. 18-cv-124

(VB), 2019 WL 1417220 (S.D.N.Y. Mar. 29, 2019) (“An ALJ can also

decline to give controlling weight to a treating physician's

opinion where contemporaneous treatment records, including the

plaintiff's largely normal mental status examinations on both

treating and consultative evaluations, did not support such

severe limitations” (internal quotation marks omitted)); Camille

v. Berryhill, No. 17-cv-01283 (SALM), 2018 WL 3599736, at *11

(D. Conn. July 27, 2018) (finding that the ALJ did not err in

according less than controlling weight to an opinion when the

record “largely reflect[ed] normal mental status examinations,

including intact thought processes and minimal impairment in

both judgment and insight”).

Plaintiff next argues that the ALJ should not have

relied on Dr. Frankel’s opinion because Dr. Frankel did not

review Plaintiff’s treatment notes. (Pl. Mem. at 8.) The

regulations do require that a consulting physician be provided

with “any necessary background information about [a claimant's]

condition.” 20 C.F.R. § 404.1517. But as this court has

previously explained, “this language does not amount to a

requirement that every consulting physician be provided with all

of a claimant's medical records and history.” Johnson v.

Colvin, No. 13-cv-3745 (KAM), 2015 WL 6738900, at *15 (E.D.N.Y.

Nov. 4, 2015), aff'd sub nom. Johnson v. Comm'r of Soc. Sec.,

669 F. App'x 580 (2d Cir. 2016; see also Genovese v. Astrue, No.

11–cv–02054 (KAM), 2012 WL 4960355, at *18 (E.D.N.Y. Oct. 17,

2012) (“The SSA's statement that an examiner must be given

‘necessary background information about [a claimant's]

condition,’ 20 C.F.R. §§ 404.1517, 416.917, does not mandate

that ‘the examiner must be provided with plaintiff's medical

records,’ as plaintiff asserts it does.”). Moreover, although

there is no indication in Dr. Frankel’s report that she was

provided background medical information about plaintiff, the ALJ

did review the background medical information and found Dr.

Frankel’s opinion regarding plaintiff’s concentration and

attention appears to be consistent with the observations of Dr.

Powsner regarding the plaintiff’s improved mental status

examinations. (Tr. 18-20.)

In his August 2019 opinion, Dr. Powsner stated, inter

alia, that Plaintiff was limited in most areas pertaining to

memory, concentration, social interactions, and adaptation.

(Tr. 523.) In explaining why she found Dr. Powsner’s opinion to

be inconsistent with the record and not significantly

persuasive, the ALJ pointed to specific evidence contradicting

his opinion, including largely normal mental status examinations

(id. at 348, 352, 390, 394, 403, 420, 476, 487, 491, 503),

describing intact attention and concentration and minimal

impairment in thought process, as well as indications of

improvement after an approximately three-month period of greater

impairment in memory and concentration (id. at 399, 407-08, 412,

416). Moreover, in the mental status exam conducted by Dr.

Frankel in August 2018 (during the period where Dr. Powsner’s

notes most consistently reflect impairment in memory and

concentration), Plaintiff was found to have coherent though

process, essentially intact attention and concentration, and

only “mildly impaired” memory. (Id. at 378-79.) See Pawlak v.

Saul, No. 19-cv-165 (MJR), 2020 WL 3046204, at *6 (W.D.N.Y. June

8, 2020) (explaining that “[a]lthough the findings from

Plaintiffs mental or psychiatric examinations supported some

limitations, they did not support disabling restrictions”).

Significantly, the RFC accounts for limitations assessed by Dr.

Frankel and as reflected in Dr. Powsner’s mental status

examinations on the record, including that Plaintiff was limited

to performing simple, routine, and repetitive tasks with only

occasional contact with the public. (Tr. 20.)

Plaintiff also contends that the ALJ’s RFC

determination did not incorporate all findings from the opinion

of Dr. Pomeranz nor did the ALJ articulate how persuasive she

found these un-incorporated findings. (Pl. Mem. at 9; Pl. Reply

at 3-4.) Plaintiff points to findings, indicated by checks on

an impairment questionnaire, including that Plaintiff had

significant limitations processing visual information (e.g.,

driving, moving print, patterns, computer screens, etc.);

avoiding normal work hazards (e.g., wet floors, overhangs);

walking on uneven terrain; and working with small objects (e.g.,

keyboard, coins, and labels). (Tr. 517.) The ALJ accommodated

Plaintiff’s visual impairments by limiting the RFC to

occupations that do not require visual acuity, depth perception,

peripheral vision, color perception, or hazards such as

dangerous moving machinery or unprotected heights, but noted,

consistent with Dr. Pomeranz’s opinion, that Plaintiff could

read large print and work with large objects. (Id. at 15.) The

explicit discrepancy is the ALJ’s finding that Plaintiff

retained sufficient visual acuity to avoid workplace hazards.

(Tr. 15, 517.) Even if the ALJ's RFC finding is viewed as

conflicting with Dr. Pomeranz’s opinion, there would be no error

because the remainder of the record supports the RFC

determination. A consultative examination reported Plaintiff

can cook, clean, do laundry, and shop by himself and had a

corrected visual acuity of 20/25 in his better eye. (Tr. 372-

73.)

Furthermore, the ALJ was not required to articulate

how she considered each medical individual opinion or multiple

medical findings from one medical source individually, 20 C.F.R.

§ 404.1520c(b)(1) (“We are not required to articulate how we

considered each medical opinion or prior administrative medical

finding from one medical source individually”); nor is she

required to accept wholesale all medical findings from a single

medical opinion. Fancher v. Comm'r of Soc. Sec., No. 19-cv-158

(KS), 2020 WL 5814359, at *5 (W.D.N.Y. Sept. 30, 2020) (“An ALJ

is not required to adopt wholesale the opinion of any one

medical source, but is entitled to weigh all of the evidence

available to make an RFC finding that is consistent with the

record as a whole.” (citing Matta v. Astrue, 508 Fed. App'x 53,

56 (2d Cir. 2013))).

The ALJ also properly assessed the opinions offered by

NP Dee, Dr. Rahmani, and Dr. Salon. As explained in the written

determination, the ALJ found that NP Dee’s opinion that

Plaintiff had severe physical limitations and would require

substantial breaks and absences was not supported by the record,

nor was it consistent with objective evidence in the record,

including Plaintiff’s normal bulk and tone, 5/5 power strength

in upper and lower extremities, and lack of edema, clubbing, or

cyanosis. (Tr. 20, 384.) She similarly found Dr. Rahmani’s

opinion regarding severe limitations to be unsupported and

inconsistent with objective evidence, such as the nuclear

cardiology report showing a normal pharmacologic stress nuclear

study, normal SPECT perfusion imaging, and normal left

ventricular systolic function. (Tr. 20, 455.) Even if the

treating physician rule did apply, “an ALJ ‘may give greater

weight to a consultative examiner's opinion than a treating

physician's opinion if the consultative examiner's conclusions

are more consistent with the underlying medical evidence.’”

Colon v. Saul, No. 19-cv-1458 (PKC), 2020 WL 5764100, at *7

(E.D.N.Y. Sept. 28, 2020) (quoting Mayor v. Colvin, No. 15-cv-

344 (AJP), 2015 WL 9166119, at *18 (S.D.N.Y. Dec. 17, 2015)

(collecting cases)). Thus, under the current regulations, the

ALJ was permitted to give greater weight to the opinion of a

consultative examiner, Dr. Salon, that there were no objective

findings to support physical restrictions in Plaintiff’s ability

to sit, stand, climb, push, pull, or carry heavy objects. (Tr.

19, 385.)

In sum, the ALJ's assessment of the opinion evidence

in the record was proper. Further, the ALJ's limiting Plaintiff

to performing simple, routine, and repetitive tasks and

occasional contact with the public; to occupations that do not

require fine visual acuity, depth perception, peripheral vision,

or color perception; and to have no exposure to hazards such as

moving machinery or unprotected heights, is consistent with the

medical evidence in the record. (Tr. 15.) The RFC is supported

by the opinions of Drs. Frankel, Salon, and Pomerantz, as well

as the objective evidence on the record. The ALJ accepted the

supportability and consistency of each opinion. (Id. at 18-20.)

Plaintiff may disagree with the ALJ's conclusion; however, the

Court must “defer to the Commissioner's resolution of

conflicting evidence” and reject the ALJ's findings “only if a

reasonable factfinder would have to conclude otherwise.” Morris

v. Berryhill, 721 F. App’x 25, 29 (2d Cir. 2018) (summary

order) (internal citations, italics, and quotations omitted);

Krull v. Colvin, 669 F. App’x 31, 32 (2d Cir. 2016) (summary

order) (the deferential standard of review prevents a court from

reweighing evidence). Accordingly, remand is not appropriate on

this basis.

II. The ALJ’s Assessment of Credibility

“It is the function of the [Commissioner], not [the

reviewing court], to resolve evidentiary conflicts and to

appraise the credibility of witnesses, including the claimant.”

Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d

Cir. 1983) (citations omitted). The ALJ, “after weighing

objective medical evidence, the claimant's demeanor, and other

indicia of credibility ... may decide to discredit the

claimant's subjective estimation of the degree of impairment.”

Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir. 1999). An ALJ

evaluating a claimant’s subjective complaints of his symptoms

must first decide whether the claimant suffers from a medically

determinable impairment that could reasonably be expected to

produce her pain or other symptoms alleged. 20 C.F.R. §

404.1529(c)(1). Second, the ALJ must evaluate the intensity and

persistence of the claimant’s symptoms given all the available

evidence. Id. “[T]he ALJ has discretion to evaluate the

credibility of a claimant and to arrive at an independent

judgment, in light of medical findings and other evidence,

regarding the true extent of the pain alleged by the claimant.”

Mollo v. Barnhart, 305 F. Supp. 2d 252, 263–64 (E.D.N.Y.2004)

(quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979)).

“[I]t is the function of the Commissioner, and not a reviewing

court, to pass upon the credibility of witnesses, and to set

forth clearly its findings which form the basis for its

decision.” Saviano v. Chater, 956 F. Supp. 1061, 1071

(E.D.N.Y.1997), aff'd, 152 F.3d 920 (2d Cir.1998) (citing

Stupekevich v. Charter, 907 F. Supp. 632, 637 (E.D.N.Y. 1995)).

Because the ALJ has the benefit of directly observing a

claimant's demeanor and other indicia of credibility, the ALJ's

credibility assessment is entitled to deference. Tejada, 167

F.3d at 776. Thus, a “court must uphold the ALJ's decision to

discount a claimant's subjective complaints of pain” if her

findings are supported by substantial evidence. Aponte v. Sec'y

of Health and Human Servs., 728 F.2d 588, 591 (2d Cir.1984).

Here, at a hearing before the ALJ on September 4,

2019, Plaintiff testified he had stopped working in May 2018

because of “a nervous breakdown.” (Tr. 40-41.) He had worked

at his job as a navigator, or patient transporter for 34 years.

(Id. at 41-42.) While Plaintiff has been suffering from mental

health problems since 1984, prior to discontinuing work he began

to feel that he “couldn’t keep up with the work,” that he was

“computer illiterate,” and could not manage “computer work or

writing stuff in, getting my patient, bringing my patient back.”

(Id.) Plaintiff lives with his wife and after stopping his job

only did work “around the house.” (Id. at 40-43.)

Plaintiff’s wife of 19 years also testified at the

hearing. (Id. at 44.) She testified that around May 2018,

Plaintiff became “more and more agitated. He was showing signs

of, you know, withdrawing, some signs of depression, becoming

more depressed. I noticed that the job was wearing on him. It

was bothering him a lot and his appetite, his appetite became

less. He would, you know, like I said, he was more withdrawn.”

(Id. at 45.) She also testified to plaintiff’s concentration

and memory, explaining that Plaintiff can become confused from a

simple call from the doctor’s office, unable to gather certain

details and information correctly. (Id. at 46.) His wife also

stated that she had been accompanying Plaintiff to all his

doctor’s appointments since May 2018 because of his confusion

and that work would be difficult because there are certain,

simple tasks Plaintiff cannot complete on a daily basis at home.

(Id. at 51-52.)

In assessing the credibility of the claimant’s

statements regarding his symptoms, the ALJ must consider the

following factors: (1) claimant’s daily activities; (2)

location, duration, frequency, and intensity of claimant’s pain

or other symptoms; (3) precipitating and aggravating factors;

(4) type, dosage, effectiveness, and side effects of any

medication taken to alleviate pain or other symptoms; (5)

treatment, other than medication, for relief of pain or other

symptoms; (6) any measures used to relieve pain or other

symptoms; and (7) other factors concerning functional

limitations and restrictions due to pain or other symptoms. 20

C.F.R. §§ 416.929(c)(3)(i)-(vii). The ALJ will consider whether

there are any incongruities between the claimant’s statements

and the rest of the evidence. Id. § 404.1529(c)(4).

The ALJ first found that plaintiff’s medically

determinable impairments could reasonably be expected to cause

his alleged symptoms. (Tr. 15-16.) The ALJ then found

plaintiff’s account of the intensity, persistence, and limiting

effects of his symptoms were “not entirely consistent” with the

objective medical evidence and other evidence (id. at 16),

including: Dr. Salon’s largely normal physical exam findings

(id. at 16, 382-85); plaintiff’s consistently normal gait

throughout Plaintiff’s treatment history with only two months of

physical therapy (id. at 16, 310, 324, 343, 390, 382, 416, 475,

481, 487); a cardiology report showing normal functioning and an

echocardiogram showing only mild mitral and aortic regurgitation

(id. at 17, 531, 636); Dr. Powsner’s reports of improvement and

stability of psychiatric symptoms with treatment (id. at 476,

487, 491, 503); Dr. Frankel’s findings that Plaintiff mostly had

no limitations in mental capacity, excepting moderate

limitations for sustaining concentration and performing a task

at a consistent pace (id. at 18, 377-81); and the fact that

plaintiff had been able to engage in many activities of daily

living (id. at 18, 372). Moreover, as noted by the ALJ,

Plaintiff was stable on his medications and was seeing Dr.

Powsner once a month. (Id. at 17, 481.) The ALJ cited record

evidence in making her decision, and substantial evidence

supports the ALJ's findings; accordingly, this court must uphold

the ALJ's decision. See Cichocki v. Astrue, 534 F. App’x 71, 76

(2d Cir. 2013) (“While it is ‘not sufficient for the [ALJ] to

make a single, conclusory statement that’ the claimant is not

credible ..., remand is not required where ‘the evidence of

record permits us to glean the rationale of an ALJ's

decision.’”) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040

(2d Cir. 1983); see, e.g., Gielarowski for Gielarowski v.

Berryhill, No. 16-cv-3560 (DRH), 2017 WL 4564766 (E.D.N.Y. Oct.

12, 2017); see also Stanton v. Astrue, 370 F. App’x 231, 234 (2d

Cir. 2010) (“We have no reason to second-guess [a] credibility

finding ... where the ALJ identified specific record-based

reasons for his ruling.”).

CONCLUSION

The court has reviewed the entire record and finds

that the ALJ's determination is free from legal error and

supported by substantial evidence in the record. For the

reasons set forth above, the court respectfully denies

plaintiff’s motion for judgment on the pleadings and grants the

Commissioner’s cross-motion for judgment on the pleadings. The

Clerk of Court is respectfully directed to enter judgment in

favor of the defendant Commissioner and close this case.

SO ORDERED.

Dated: July 13, 2021

Brooklyn, New York

/s/

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York