# Gilmore v. Commissioner of Social Security

> District Court, E.D. New York · January 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10307334

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 7, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10307334

## How later opinions describe it (automated extraction)

- finding that the claimant’s daily activities detracted from his allegations of disability

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
BRUCE GILMORE,

Plaintiff, MEMORANDUM AND ORDER
20-CV-3410 (KAM)
-against-

COMMISSIONER OF SOCIAL SECURITY,

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307334. Public record. Not legal advice.