Gilmore v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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BRUCE GILMORE,

Plaintiff, MEMORANDUM AND ORDER

20-CV-3410 (KAM)

-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Bruce Gilmore appeals the final decision of

the Commissioner of the Social Security Administration (the

“Commissioner”), which found Plaintiff is not disabled and thus

not entitled to disability insurance benefits under Title II of

the Social Security Act (the “Act”). Before the court are

Plaintiff’s motion for judgment on the pleadings and the

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

the reasons set forth below, Plaintiff’s motion is respectfully

DENIED and the Commissioner’s cross-motion is GRANTED.

BACKGROUND

The parties have filed a joint statement of stipulated

facts detailing Plaintiff’s medical history and the administrative

hearing testimony, which the court incorporates by reference. (See

ECF No. 11, Joint Stipulation of Facts (“Stip.”).) Plaintiff was

employed by the New York City Transit Authority as a train

operator. (Id. at 1.) He last worked in March 2015. (Id.)

Plaintiff filed an application for disability insurance

benefits on July 31, 2018, alleging a disability beginning March

24, 2015, due to bilateral knee injuries, spinal disease, post-

traumatic stress disorder, cardiovascular disease, and diabetes.

(ECF No. 8, Administrative Transcript (“Tr.”) at 75, 203-04, 255.)

Plaintiff’s claims were denied on September 26, 2018. (Id. at 63-

75, 78-84.) On November 5, 2018, Plaintiff requested a hearing

before an administrative law judge (“ALJ”). (Id. at 85-86.) ALJ

Zachary S. Weiss held hearings on Plaintiff’s claims on August 12,

2019 and February 27, 2020. (Id. at 28-62.) At the supplemental

hearing on February 27, 2020, Plaintiff amended his alleged

disability onset date to January 1, 2018. (Id. at 34-35, 233.)

On April 29, 2020, the ALJ found that Plaintiff was not

disabled under the Act because he retained the residual functional

capacity (“RFC”) to perform his prior work as a train operator.

(Id. at 10-22.) On May 6, 2020, Plaintiff requested review of the

ALJ’s decision (id. at 200-201), which the Appeals Council denied

on June 12, 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.)

Legal Standard

I. Standard of Review

An unsuccessful claimant for disability benefits under

the Act may bring an action in federal court seeking judicial

review of the Commissioner’s denial of his or her benefits. 42

U.S.C. §§ 405(g), 1383(c)(3). “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 v. Astrue,

537 F.3d 117, 127 (2d Cir. 2008) (quotations and citation omitted);

see also 42 U.S.C. § 405(g). “Substantial evidence is ‘more than

a mere scintilla. It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Hallaron

v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v.

Perales, 420 U.S. 389, 401 (1971)). 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) (citation omitted;

second alteration in original). 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 of Soc.

Sec., 692 F.3d 118, 122 (2d Cir. 2012).

II. Determination of Disability

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 is disabled under the Act when he or 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 expected

to last for a continuous period of not less than 12 months.” Id.

§ 423(d)(1)(A). The impairment must be of “such severity” that

the claimant is unable to do his or her previous work or engage in

any other kind of substantial gainful work. Id. § 423(d)(2)(A).

“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)).

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. This process can be

summarized as follows:

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

is not working, (2) that 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 his prior type of work,

the Commissioner must find him disabled if (5) there is

not another type of work the claimant can do.

Burgess, 537 F.3d at 120 (quotations and citation omitted); see

also 20 C.F.R. § 404.1520(a)(4).

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(c). 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). At 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. At step five, the burden shifts from the claimant

to the Commissioner, requiring the Commissioner to show that, in

light of the claimant’s 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).

The ALJ’s Disability Determination

Using the five-step sequential process described above,

the ALJ determined at step one that Plaintiff had not engaged in

substantial gainful activity since the alleged onset date. (Tr.

at 13.)1

At step two, the ALJ found that Plaintiff suffered from

the following severe impairments: “degenerative disc disease of

the lumbar spine, and degenerative joint disease of both knees and

both ankles.” (Id.)

At step three, the ALJ determined that Plaintiff did not

have an impairment or combination of impairments that equaled the

severity of listed impairments under 20 C.F.R. Part 404, Subpart

P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).

(Tr. at 16.) The ALJ then found, based on the medical evidence,

that Plaintiff had the RFC to perform “medium work” as defined in

20 C.F.R § 404.1567(c),2 except that “he can stand for 4 hours

total, walk for 4 hours total, and sit for 6 hours total in an 8-

hour workday. [He] can lift and carry 50 pounds occasionally and

20 pounds frequently, and he can occasionally crouch and kneel.”

(Tr. at 16.)

1 Several times in his decision, the ALJ referred to Plaintiff’s initial onset

date as March 24, 2015. (Tr. at 10-11, 13, 22.) As the decision also

recognized, however, Plaintiff amended his alleged onset date to January 1,

2018. (Id. at 13; Stip. at 10.) Plaintiff makes no argument that the ALJ

failed to consider the appropriate onset date when making his disability

determination. The court accordingly declines to consider the issue further.

2 “Medium work involves lifting no more than 50 pounds at a time with frequent

lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. §

404.1567(c). “If someone can do medium work, . . . he or she can also do

sedentary and light work,” and light work “requires a good deal of walking or

standing, or . . . sitting most of the time with some pushing and pulling of

arm or leg controls.” Id. § 404.1567(b)-(c).

As step four, in light of the foregoing, the ALJ

concluded that Plaintiff was capable of performing his past job as

a train operator. (Id. at 21-22.) In making this finding, the

ALJ relied on a vocational expert who testified that train

operation was a skilled, light-level occupation, and that a person

with Plaintiff’s background and functional capacity could perform

such a job. (Stip. at 11; Tr. at 41-45.)

DISCUSSION

Plaintiff contends that the ALJ lacked substantial evidence

to conclude that he possessed the residual functional capacity to

perform his prior work as a train operator. (ECF No. 9 (“Pl.’s

Mem.”) at 10.) In particular, Plaintiff challenges the ALJ’s

evaluation of four medical opinions and the ALJ’s reliance on

evidence about Plaintiff’s daily activities and treatment. (Id.

at 11-17.)

I. Weighing of Medical Opinion Evidence

A. Regulations Regarding Evaluation of Medical Opinion

Evidence

In 2017, new regulations were issued that changed the

standard for evaluating medical opinion evidence regarding claims

filed on or after March 27, 2017. See 20 C.F.R. § 404.1520c.

Plaintiff filed his claim on July 31, 2018; thus, the new

regulations apply. Under the new regulations, the Commissioner

will no longer “defer” or give “controlling weight” to a claimant’s

treating medical sources. Id. § 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 sources

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 sources’

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). In each case, the ALJ must explain how he or she

considered the factors of supportability and consistency, the two

most important factors for determining persuasiveness. Id. §

404.1520c(a), (b)(2).

B. The ALJ’s Assessment of Opinion Evidence

The parties’ arguments center on four medical opinions

before the ALJ. First, on August 24, 2018, Plaintiff attended an

internal medicine examination with Dr. Ann Marie Finegan. (Tr. at

402-07.) Dr. Finegan opined that Plaintiff was mildly limited in

his ability to kneel, crouch, and crawl; was moderately limited in

his ability to climb stairs and perform tasks requiring prolonged

standing; and should not climb ladders. (Id. at 406.) Dr. Finegan

noted that Plaintiff used a cane but that it did not appear

medically necessary. (Id. at 405.) The ALJ found the opinions of

Dr. Finegan to be “persuasive,” except for the limitations on

crawling, prolonged standing, and climbing, which the ALJ

concluded were “overly restrictive when considering the medical

evidence as a whole.” (Id. at 19.) In crediting the remainder of

Dr. Finegan’s opinions, the ALJ noted that they were consistent

with consultative examinations and treatment notes showing “none

to mild findings in the knees and lower extremities, mostly normal

gait, normal appearance, minimally reduced to full motor strength

throughout, negative testing, no atrophy, good muscle bulk, no

neurological deficits, and inconsistent use of a cane.” (Id.)

The ALJ also found that Dr. Finegan’s other opinions were supported

by the opinions and treatment notes of other physicians, discussed

below, as well as evidence regarding Plaintiff’s treatment and

daily activities. (Id. at 20.)

Second, on September 18, 2018, state agency medical

consultant Dr. R. Abeug reviewed the record and completed an RFC

assessment. (Id. at 70-73.) Dr. Abueg opined that Plaintiff could

lift or carry a maximum of 20 pounds occasionally and 10 pounds

frequently; stand and/or walk for about six hours in an eight-hour

workday; and sit for about six hours in an eight-hour workday.

(Id. at 70-71.) Dr. Abeug also opined that Plaintiff could

occasionally crawl, crouch, kneel, stoop, and climb. (Id. at 71.)

The ALJ found the opinions of Dr. Abueg to be “persuasive” except

for the limitations on “lifting and carrying, climbing, stooping

and crawling,” which the ALJ again concluded were “overly

restrictive when considering the medical evidence as a whole.”

(Id. at 21.) In crediting Dr. Abueg’s other opinions, the ALJ

noted that they were consistent with: (1) consultative

examinations and treatment notes, discussed above; (2) the

opinions of other physicians, including Dr. Finegan; and (3)

evidence regarding Plaintiff’s “essentially normal activities of

daily living.” (Id. at 20.)

Third, on September 17, 2019, Plaintiff attended an

orthopedic examination with Dr. David Guttman. (Id. at 477-82.)

Dr. Guttman opined that Plaintiff had moderate limitations in

sitting, standing, walking, climbing stairs, squatting, kneeling,

bending, lifting, carrying, pushing, and pulling. (Id. at 480.)

In an accompanying functional assessment questionnaire, Dr.

Guttman indicated that, in an eight-hour workday, Plaintiff could

occasionally lift and carry up to 10 pounds; sit for two hours at

a time and four hours total; stand for one hour at a time and two

hours total; and walk for one hour at a time and two hours total.

(Id. at 484-85.) Dr. Guttman also opined that Plaintiff required

a cane to ambulate more than a half block. (Id. at 485.) The ALJ

found the opinions of Dr. Guttman to be “unpersuasive.” (Id. at

21.) In making this finding, the ALJ found that Dr. Guttman’s

opinions were unsupported by the consultative examinations and

treatment notes discussed above. (Id.) The ALJ also noted that

Dr. Guttman’s opinions were inconsistent with the opinions of Dr.

Ghazi, discussed below; portions of the opinions of Drs. Finegan

and Abeug; and evidence regarding Plaintiff’s daily activities.

(Id.)

Fourth, on February 27, 2020, Dr. Darius Ghazi testified

at the supplemental hearing based on his review of the record.

Dr. Ghazi testified that Plaintiff appeared athletically inclined

and had knee and ankle injuries, “perhaps related to his athletic

activities,” that were treated appropriately and resulted in mild

to moderate osteoarthritis. (Id. at 36.) Dr. Ghazi opined that

Plaintiff’s functional capacity was “pretty much near normal” with

some limitations, such as occasional kneeling and crouching. (Id.

at 37.) He said that, in an eight-hour workday, Plaintiff could

stand for four hours, walk for four hours, and lift 50 pounds

occasionally and 20 pounds frequently. (Id.) On cross-

examination, Dr. Ghazi stated that Dr. Guttman’s assessment was

overstated and that the mild osteoarthritis in Plaintiff’s knees

and ankles could easily be remedied by anti-inflammatory

medications. (Id. at 39.) The ALJ found the opinions of Dr. Ghazi

to be “persuasive,” noting that they were consistent with the

consultative examinations and treatment notes discussed above;

portions of the opinions of Drs. Finegan and Abueg; and evidence

regarding Plaintiff’s daily activities. (Id. at 20.)

C. Analysis

Plaintiff contends that the ALJ erroneously focused its

decision on the assessment of Dr. Ghazi and erroneously discounted

portions of the testimony of Drs. Finegan and Abueg. (Pl.’s Mem.

at 12-14.) In Plaintiff’s view, the opinions of Dr. Guttman should

have “carr[ied] the day” because he examined Plaintiff in person,

his opinions were consistent with VA treatment records, and his

opinions were not contradicted by the RFC evaluation of any

examining physician. (Id. at 15.)

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 his assessment of the RFC based on

this evidence is supported by substantial evidence. Consistent

with 20 C.F.R. § 404.1520c, the ALJ evaluated the persuasiveness

of the medical source opinions and explained how he considered the

factors of supportability and consistency. See Raymond M. v.

Comm'r of Soc. Sec., 2021 WL 706645, at *8 (N.D.N.Y. Feb. 22, 2021)

(“At their most basic, the amended regulations require that the

ALJ explain h[is] findings regarding the supportability and

consistency for each of the medical opinions, ‘pointing to specific

evidence in the record supporting those findings.’” (citation

omitted)).

For example, the ALJ found Dr. Ghazi’s opinion was

supported by the treatment notes and examination reports

concerning Plaintiff’s knee pain, motor strength, and inconsistent

use of a cane, among other things. (Tr. at 20, 309, 325, 328,

441, 562, 574, 612-616, 644, 670.) See 20 C.F.R. §

404.1520c(c)(1). Further, the ALJ found that Dr. Ghazi’s testimony

was consistent with portions of the opinions of Dr. Finegan, who

stated that Plaintiff’s use of a cane was not medically necessary,

as well as portions of the opinions of Dr. Abueg, who opined that

Plaintiff retained the capacity to stand or walk for up to six

hours and sit for up to six hours in an eight-hour workday. (Id.

at 19-20, 71, 405.) The ALJ also found that Dr. Ghazi’s testimony

was consistent with agency investigators who observed Plaintiff

walking without the support of a cane and exercising at home. (Id.

at 20, 727-728, 732.) The ALJ thus properly found Dr. Ghazi’s

opinion to be supported by objective evidence and consistent with

the record as a whole. Although Plaintiff asserts that Dr.

Guttman’s assessment should have “carr[ied] the day” rather than

Dr. Ghazi’s (Pl.’s Mem. at 15), “the ALJ may ‘choose between

properly submitted medical opinions.’” Heaman v. Berryhill, 765

F. App’x 498, 500 (2d Cir. 2019) (quoting Balsamo v. Chater, 142

F.3d 75, 81 (2d Cir. 1998)).

Plaintiff also criticizes the ALJ’s reliance on Dr.

Ghazi’s opinions because he “never examined” Plaintiff and based

his opinions on “nothing more than a review of the file.” (Pl.’s

Mem. at 13.) Under the new regulations, however – which eliminated

the treating physician rule – the source’s relationship with the

claimant is just one of several factors to be considered by the

ALJ. 20 C.F.R. § 404.1520c(c)(3). The ALJ noted that Dr. Ghazi’s

opinions were based only on a file review yet found them persuasive

in light of other evidence in the record, including treatment and

examination notes, portions of the opinions of Dr. Finegan and Dr.

Abeug, and evidence regarding Plaintiff’s daily activities. (Tr.

at 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)

(citations and emphasis omitted).

With respect to Dr. Finegan and Dr. Abueg, Plaintiff

criticizes the ALJ for relying on only portions of their opinions

and rejecting their proposed limitations on crawling, prolonged

standing, climbing, lifting, carrying, and stooping. (Pl.’s Mem.

at 12.) “It is well-recognized,” however, “that the ALJ need not

adopt any opinion in its entirety, but rather is entitled to weigh

all the evidence and adopt the limitations supported by the

evidence.” Butler v. Comm’r of Soc. Sec., 2017 WL 2834482, at *8

(N.D.N.Y. June 29, 2017); see also, e.g., Matta v. Astrue, 508 F.

App’x 53, 56 (2d Cir. 2013) (summary order) (“Although the ALJ’s

conclusion may not perfectly correspond with any of the opinions

of medical sources cited in his decision, he was entitled to weigh

all of the evidence available to make an RFC finding that was

consistent with the record as a whole.”).

Here, the ALJ noted that the limitations proposed by Dr.

Finegan and Dr. Abeug were “overly restrictive when considering

the medical evidence as a whole.” (Tr. at 19-20.) This evidence

included the opinions of Dr. Ghazi, as well as diagnostic tests

and treatment notes indicating that Plaintiff “has impairments

that would reasonably result in some limitations, but not to the

extent alleged.” (Tr. at 17-18.) Such “[g]enuine conflicts in

the medical evidence are for the Commissioner to resolve.” Veino

v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). Contrary to

Plaintiff’s assertion, the ALJ did not “cherry-pick” evidence by

“ignoring” the limitations proposed by Dr. Finegan and Dr. Abeug.

Christine S. v. Comm’r of Soc. Sec., 2021 WL 3721135 (W.D.N.Y.

Aug. 23, 2021) (citation omitted). Rather, the ALJ evaluated the

opinions of Dr. Finegan and Dr. Abueg in detail but found some of

their proposed limitations overly restrictive in light of other

evidence, including the opinions of Dr. Ghazi. “There is nothing

improper in an ALJ evaluating and weighing evidence in this

manner.” Id.

For the reasons discussed above, the court concludes

that the ALJ adequately weighed the relevant medical evidence in

assessing the severity of Plaintiff’s condition and in making an

RFC finding consistent with the overall record. See, e.g.,

Burmeister v. Comm'r of Soc. Security Admin., 2019 WL 4888636, at

*7 (E.D.N.Y. Sept. 30, 2019) (noting that the ALJ properly

considered “the documentary evidence, treatment notes, and

Plaintiff's own testimony regarding his limitations” in making an

RFC finding.) Accordingly, because the ALJ’s findings were

consistent with the record as a whole, the court concludes that

substantial evidence supported the ALJ’s determination.

II. Daily Activities and Treatment

Plaintiff also appears to challenge the ALJ’s reliance

on evidence regarding Plaintiff’s daily activities and treatment

when making his RFC finding. (Pl.’s Mem. at 16-17.) The court

concludes that the ALJ properly considered evidence of treatment

and daily activities in conjunction with the medical opinions and

evidence discussed above.

A. Evidence of Plaintiff’s Daily Activities and

Treatment

First, the ALJ found Plaintiff’s “use of a reported

medically necessary cane to be inconsistent throughout the

evidence.” (Tr. at 19.) In 2010, for example, a Department of

Veteran’s Affairs physician noted Plaintiff had exaggerated

numerous symptoms during an examination and stated that while

Plaintiff had a cane, “it is more often carried rather than used

for gait stability.” (Id. at 642, 644.) In her August 2018

consultative examination, Dr. Finegan likewise noted that “she did

not know why” Plaintiff used a cane because “it d[id] not appear

to be medically necessary.” (Stip. at 6; see Tr. at 405.) In an

August 2018 Function Report, Plaintiff stated he used a cane

prescribed by a doctor through a VA medical clinic. (Tr. at 251.)

In the same report, however, Plaintiff also stated that he did not

use any supportive devices, such as a cane. (Id. at 249.) On

January 9, 2020, a Social Security Administration investigator

visited Plaintiff’s residence and noted that Plaintiff did not use

the cane for walking and appeared to be in good shape. (Id. at

728.) An agency investigator also observed Plaintiff walking at

a fast pace and not using the cane as a supportive device on

February 27, 2020. (Id. at 732.)

Second, the ALJ found that Plaintiff’s treatment “showed

that his condition is not as limited as alleged.” (Id. at 19.)

In May 2017, for example, Plaintiff stated that naproxen relieved

his pain and rated his pain as 4 to 6 out of 10. (Id. at 327.)

Plaintiff also noted that he had yet to try any physical therapy.

(Id.) In his August 2018 function report, Plaintiff reported that

although he could not lift heavy items or stand or walk for a long

time, his pain did not affect his daily activities. (Id. at 249-

52.) In July 2019, Plaintiff again stated that his pain was

tolerable and controlled with ibuprofen and Tylenol. (Id. at 672.)

And in September 2019, Plaintiff again reported taking naproxen

for his pain. (Id. at 558.)

Third, the ALJ concluded that evidence of Plaintiff’s

“active lifestyle” weighed against a finding of disability. (Id.

at 19.) At the hearing, Plaintiff testified that he stopped

exercising after he retired in 2015. (Id. at 30-32, 34, 58.) In

May 2017, however, Plaintiff reported that he had home gym

equipment and exercised regularly. (Id. at 328.) In her August

2018 consultative examination, Dr. Finegan noted that Plaintiff

was “extremely muscular” and showed no signs of atrophy. (Stip.

at 7; see Tr. at 406.) And in January 2020, Plaintiff answered

the door for a Social Security investigator while wearing a t-

shirt, shorts, compression sleeves on both knees, and supports on

his wrists that appeared to be athletic tape. (Stip. at 2; Tr. at

727.) When the investigator asked Plaintiff about the loud music

coming from his home, Plaintiff reported that he was working out.

(Id.)

B. Analysis

After reviewing the evidence, the court concludes that

the ALJ properly considered Plaintiff’s daily activities and

treatment when making his RFC finding. Contrary to Plaintiff’s

contentions, it was proper for the ALJ to note that Plaintiff

inconsistently used a cane; had received only conservative medical

treatment, including non-prescription, over-the-counter pain

medication; and engaged in daily activities like exercising and

performing household chores. Indeed, the regulations explicitly

direct the ALJ to consider the claimant’s activities of daily

living and the nature of the claimant’s medication and treatment.

20 C.F.R. § 404.1529(c)(3)(i), (iv), (v).

Plaintiff argues that “sometimes walk[ing] without the

aid of a cane does not establish an ability to engage in sustained,

day-in-and-day-out medium-level work.” (Pl.’s Mem. at 16.) The

ALJ reasonably determined, however, that evidence of Plaintiff’s

cane being inconsistently used and medically unnecessary was “a

clear inconsistenc[y] [that] impugned [Plaintiff’s] credibility”

and weighed against crediting Dr. Guttman’s opinions. Rojas v.

Comm’r of Soc. Sec., 2017 WL 943931, at *9 (E.D.N.Y. Mar. 9, 2017);

see also, e.g., Ortiz v. Saul, 2020 WL 1150213, at *7 (S.D.N.Y.

Mar. 10, 2020) (ALJ properly discounted physical therapist whose

opinion “was inconsistent with both other examining physicians’

opinions finding a cane was not medically necessary and Plaintiff's

inconsistent use of a cane”); Fernandez v. Comm’r of Soc. Sec.,

2020 WL 6746832, at *8 (E.D.N.Y. Nov. 16, 2020) (ALJ considered

Plaintiff’s subjective complaints, including the need for a cane,

but reasonably determined that they were inconsistent with the

record as a whole). In making his RFC determination for medium

work, the ALJ relied on substantial evidence showing that

Plaintiff’s activities were not as severely impacted as he

testified and Dr. Guttman opined. As discussed above, this

evidence included not just the opinions of Dr. Ghazi, but also

treatment notes, diagnostic tests, the observations of agency

investigators, and portions of the opinions of Dr. Finegan and Dr.

Abeug.

Similarly, the ALJ reasonably determined that

Plaintiff’s use of over-the-counter medications like Tylenol

supported the RFC. (See Pl.’s Mem. at 16.) “The fact that a

patient takes only over-the-counter medication to alleviate [his]

pain may . . . help to support the Commissioner’s conclusion that

the claimant is not disabled if that fact is accompanied by other

substantial evidence in the record.” April B. v. Saul, 2019 WL

4736243, at *6 (N.D.N.Y. Sept. 27, 2019) (quoting Burgess, 537

F.3d at 129). Here, the ALJ identified ample substantial evidence

to conclude that Plaintiff was not disabled, including not just

the evidence regarding Plaintiff’s responsiveness to over-the-

counter medication, but also the opinions of physicians and medical

records. Thus, Plaintiff’s “conservative treatment regimen” was

properly relied upon “as additional evidence supporting the ALJ’s

determination rather than as compelling evidence sufficient in

itself to overcome an otherwise valid medical opinion.” Pesco v.

Kijakazi, 2021 WL 4463228, at *3 n.3 (E.D.N.Y. Sept. 29, 2021)

(quoting Netter v. Astrue, 272 F. App’x 54, 56 (2d Cir. 2008));

see also, e.g., Curley v. Comm’r of Soc. Sec. Admin., 808 F. App’x

41, 44 (2d Cir. 2020) (holding that the ALJ’s RFC finding “was

supported by medical evidence, including evidence that his

symptoms were responsive to medication and that he had received

only conservative treatment . . . .”).

With respect to his daily activities, Plaintiff contends

that “[t]he ability to do simple household chores or to engage in

home exercises . . . does not bespeak a capacity for regular,

competitive employment.” (Pl.’s Mem. at 16.) To be sure, “[a]n

individual can perform [his] daily activities and still experience

debilitating pain at the intensity and persistence and with the

limiting effects [he] claims.” Scatola v. Comm’r of Soc. Sec.,

2020 WL 5752300, at *9 (E.D.N.Y. Sept. 26, 2020) (citation omitted;

alterations original). Importantly, however, the ALJ did not rely

solely upon Plaintiff’s exercise or household chores to conclude

that Plaintiff could perform medium work; rather, this evidence

demonstrated inconsistencies in the record about Plaintiff’s

abilities that the ALJ was required to resolve. Cruz v. Comm’r of

Soc. Sec., 2018 WL 3628253, at *8 (W.D.N.Y. Jul. 31, 2018) (“The

issue is not whether Plaintiff’s limited ability to undertake

normal daily activities demonstrates [his] ability to work.

Rather, the issue is whether the ALJ properly discounted

[Plaintiff’s] testimony regarding [his] symptoms to the extent

that it is inconsistent with other evidence.” (citation omitted;

alterations original)). As discussed above, the ALJ identified

medical opinions and other evidence that contradicted Plaintiff’s

testimony that he had not exercised regularly since retiring in

2015, and found that Plaintiff’s limitations were not as severe as

he claimed. See, e.g., Poupore v. Astrue, 566 F.3d 303, 307 (2d

Cir. 2009) (finding that the claimant’s daily activities detracted

from his allegations of disability); Conetta v. Berryhill, 365 F.

Supp. 3d 383, 402, 406 (S.D.N.Y. 2019) (ALJ properly discounted

opinions of treating physicians and plaintiff’s testimony based on

evidence of daily activities, including exercise); Arbello v.

Comm’r of Soc. Sec., 2019 WL 1384094, at *11 (E.D.N.Y. Mar. 27,

2019) (ALJ properly discounted physician’s opinion based on

evidence of daily activities, including gym exercise).

Finally, Plaintiff appears to argue that individuals

aged 60 and over cannot perform the exertional requirements of

medium work. (See Pl.’s Mem. at 14.) A claimant’s age, while

possibly relevant to the severity of an individual’s impairments,

is not relevant in assessing RFC or determining whether the

claimant can perform past relevant work at step four of the five-

step framework. 20 C.F.R. § 404.1560(b)(3).

For the reasons discussed above, the court concludes

that the ALJ adequately weighed the relevant evidence and testimony

in assessing the severity of Plaintiff’s condition and in making

an RFC finding consistent with the overall record. Accordingly,

because the ALJ’s findings were consistent with the record as a

whole, the court concludes that substantial evidence supported the

ALJ’s determination.

CONCLUSION

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 Commissioner and close this case.

SO ORDERED.

/s/ Kiyo A. Matsumoto_______

Kiyo A. Matsumoto

United States District Judge

Eastern District of New York

Dated: January 7, 2022

Brooklyn, New York