# Walker v. Saul

> District Court, E.D. New York · June 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10308068

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10308068

## How later opinions describe it (automated extraction)

- affirming the ALJ’s decision not to credit a treating physician’s opinions because they were not supported by objective medical evidence
- finding that plaintiff’s statements regarding the intensity and limiting effects of her symptoms are inconsistent with her prior statements, actions, and medical evidence
- holding that ALJ properly found plaintiff’s testimony about the severity of his ailments to be unsupported by the medical record, and that the ALJ properly relied on the testimony of a vocational expert that plaintiff was not disabled

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------x
CATHY WALKER,

Plaintiff, MEMORANDUM & ORDER
19-CV-4742 (RPK)

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.
-------------------------------------------------------x
RACHEL P. KOVNER, United States District Judge:
Plaintiff Cathy Walker challenges the Commissioner of Social Security’s determination
that she is ineligible for Supplemental Security Income (“SSI”) benefits because she is not
disabled. Plaintiff and the Commissioner each moved for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c). For the reasons below, plaintiff’s motion is denied, and
the Commissioner’s motion is granted.
BACKGROUND
I. Eligibility Review for Supplemental Security Income Applications
Supplemental security income is available to “disabled” people. 42 U.S.C. § 1381 et seq.
A person is “disabled” when:
[s]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 twelve months.
42 U.S.C. § 1382c(a)(3)(A). The “impairment” must stem from “anatomical, physiological or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” Id. § 1382c(a)(3)(D).
The Commissioner determines whether a claimant meets the statutory definition of
“disabled” in five steps. If “an individual is found to be disabled (or not) at any step, the
Commissioner is not required to proceed to the next step.” Williams v. Apfel, 204 F.3d 48, 49
(2d Cir. 1999) (citing 20 C.F.R. § 404.1520(a)). The five-step disability analysis proceeds as

follows:
• Step One. The Commissioner must first determine that the claimant is not “presently
employed.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); see 20 C.F.R.
§§ 404.1520(b), 416.920(b).
• Step Two. If the claimant is not employed, the Commissioner must then determine that
the claimant has a “severe impairment” that limits his or her capacity to work. Brown,
174 F.3d at 62; see 20 C.F.R. §§ 404.1520(c), 416.920(c).
• Step Three. If the Commissioner finds the claimant has a severe impairment, the
Commissioner next considers whether “the claimant has an impairment that is listed in
Appendix 1” to 20 C.F.R. Part 404, Subpart P. Brown, 174 F.3d at 62; see 20 C.F.R.
§§ 404.1520(d), 416.920(d). When the claimant has a listed impairment, the
Commissioner will deem the claimant disabled and conclude the disability analysis.
Brown, 174 F.3d at 62; see 20 C.F.R. §§ 404.1520(d), 416.920(d).
• Step Four. If the claimant does not have a listed impairment, the Commissioner must
determine whether “the claimant possesses the residual functional capacity to perform
[his or] her past relevant work.” Brown, 174 F.3d at 62; see 20 C.F.R.
§§ 404.1520(e), 416.920(e).
• Step Five. Finally, if the claimant is unable to perform his or her past relevant work, the
Commissioner determines whether “the claimant is capable of performing any other
work.” Brown, 174 F.3d at 62; see 20 C.F.R. §§ 404.1520(g), 416.920(g).
The burden of proof for this analysis lies with the claimant for the first four steps of the
inquiry but shifts to the Commissioner for the final step. Brown, 174 F.3d at 62. Even when the
claimant bears the burden of proof, the Commissioner has an affirmative duty to develop the
record because the review process is “essentially non-adversarial.” Lamay v. Comm’r of Soc.
Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). Failure by the Commissioner to “fully develop[] the
factual record” constitutes “legal error.” Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999).
As the Commissioner proceeds through the five-step analysis, she is also required to
consider four categories of evidence. Brown, 174 F.3d at 62. These categories are (i) “the
objective medical facts”; (ii) “diagnoses or medical opinions based on such facts”;
(iii) “subjective evidence of pain or disability testified to by the claimant or others”; and (iv) “the

claimant’s educational background, age, and work experience.” Ibid. (citing Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).
II. Plaintiff’s Supplemental Security Income Application
Plaintiff applied for social security disability and supplemental security income disability
benefits under Titles II and XVI on June 16, 2016. Certified Administrative Record 150-160
(“AR”). In her application, plaintiff alleged that she had been disabled due to lupus since April
12, 2015. AR 150, 202. Plaintiff had worked as a “janitorial servicer” for ABM Janitorial
Services from 2003 until September 1, 2015. AR 67, 176, 179. The Social Security
Administration initially denied plaintiff’s application for benefits on August 4, 2016. AR 75.
Plaintiff then requested a hearing before an administrative law judge (“ALJ”). AR 88-89.

III. The Administrative Hearing
ALJ Kevin Kenneally presided over the July 16, 2018 administrative hearing. AR 25.
Plaintiff attended the administrative hearing via video teleconference. Ibid. At the hearing, the
ALJ noted a “grave concern” about the fact that the record lacked any medical evidence
concerning the two years prior to the hearing. AR 26. The ALJ confirmed with the plaintiff that
for the last two years she has only seen two medical providers, nephrologist Dr. Kermilde Jean-
Jerome and rheumatologist Dr. Felicia Tenedios-Karanikolas. AR 27-28, 364-66, 647-48. The
ALJ decided to leave the record open for thirty days, see AR 28, and ordered the plaintiff to
attend an internal medicine consultative examination, AR 45. Plaintiff also asked to amend the
record to allege a disability onset date of September 1, 2015, which the ALJ granted. AR 30-31.
Plaintiff testified that she completed high school “in the past fifteen years” and has
worked “very little.” AR 29-30. Plaintiff testified that she was diagnosed with lupus in April

2015 and that as a result she “can’t do as much as [she] want[s] to” and can’t work because the
lupus “hurts [her] joints.” AR 32. Plaintiff testified that she did not experience joint pain or
swelling “every day” but only “sometimes,” AR 32-33, though she later testified that her joint
problems affected her abilities to stand and walk about every day, AR 37. Plaintiff testified that
she took medication for her lupus and high blood pressure, and that the latter made her “drowsy
and dizzy.” AR 35-36. Plaintiff testified that she could walk for “about two blocks” on a
smooth, flat surface without stopping, uses her umbrella as a cane when she walks outside, could
stand for fifteen to twenty minutes before having to sit, and could sit for about thirty minutes
before experiencing joint pain. AR 37-38. Plaintiff testified that she was able to lift up to five
pounds, get dressed, and take the bus to the doctor. AR 39-42. Plaintiff testified that her

husband and two sons have to help her with the cooking, and that plaintiff could take her
daughter to school in the morning but could not pick her up in the afternoon because the sun
aggravated plaintiff’s symptoms. AR 39-42. Plaintiff testified that she naps for two hours
during the day, about three days per week, because she does not sleep well at night due to her
blood pressure medication. AR 42-44.
The ALJ solicited testimony from a vocational expert about plaintiff’s employment
prospects. AR 45-59. The ALJ posed a series of hypotheticals to the vocational expert. Ibid.
The ALJ first asked the vocational expert which, if any, occupations would be available to an
individual of the plaintiff’s age and education with no past work experience “who can perform a
full range of light work as defined in the regulations” with the following additional limitations:
(i) can “occasionally push, pull, or operate controls with the bilateral upper and lower
extremities”; (ii) “can occasionally climb ramps and stairs”; (iii) “can never climb ropes, ladders,
scaffolds”; (iv) “can occasionally balance, stoop, kneel, crouch, and crawl”; (v) “can never be

exposed to unprotected heights, moving mechanical parts, operate a motor vehicle”; (vi) and can
tolerate “only occasional exposure to humidity, wetness, dust, odors, fumes, pulmonary irritants,
extreme cold, [and] extreme heat.” AR 48. The vocational expert replied that such an individual
could perform at least three “light, unskilled” positions: an “assembler of small products,” a
“marker,” or a “collator.” AR 48-49.
The ALJ then directed the vocational expert to assume that the individual was of
plaintiff’s age, education, and work experience and could “perform a full range of sedentary
work as defined in the regulations.” AR 49. The ALJ directed the vocational expert to further
assume that the individual was subject to all the limitations listed in the first hypothetical, except
that instead of being able to “occasionally” push, pull, or operate controls with the bilateral upper

and lower extremities, this hypothetical person could “never” do so. AR 49-50. The vocational
expert replied that such an individual could hold at least three “sedentary, unskilled”
occupations: an “order clerk,” an “addresser assistant,” or an “electrical appliance assembler.”
AR 50.
The ALJ then posed three more hypotheticals. The ALJ asked what, if any, occupations
would be available to an individual with plaintiff’s age, education, and work experience who
could “perform the full range of sedentary work as defined in the regulations,” had all the
limitations set out in the first two hypotheticals, and in addition, (i) could “only occasionally, not
never, handle, finger, and feel bi-manually”; or (ii) “would be off task twenty percent of the time
in an eight-hour day” in addition to normal breaks; or (iii) “would be absent from work two days
a month,” respectively. AR 50-51. The vocational expert replied that there were no occupations
available for an individual with any of these three additional limitations. Ibid.
Plaintiff’s counsel then asked if there would be jobs available for an individual of the

plaintiff’s age and education if the individual needed to alternate between standing and sitting
every thirty minutes. AR 56-57. The vocational expert replied that there was “probably” a
sit/stand position available, as long as the time that the individual was off task to change position
did not exceed eleven percent of an eight-hour workday. AR 57.
Plaintiff’s counsel then asked whether an individual could sustain full-time work if they
had the same characteristics as in the former hypothetical, but with three added limitations: the
individual (i) could lift no more than five pounds “on an occasional basis”; (ii) could tolerate
only “occasional gross manipulations of objects, and reaching in all directions”; and (iii) “for
three days out of the week, the individual would need to take unscheduled rest breaks for one to
two hours at a time.” AR 57-58. The vocational expert stated that such an individual would not

be able to sustain any type of full-time work. AR 58.
The ALJ deferred his decision until he could review medical records regarding the two
years preceding the hearing and regarding the consultative examination that he ordered plaintiff
to attend. AR 59.
IV. The ALJ’s Fact-Finding and Decision
The ALJ issued a decision on October 1, 2018. AR 7. The ALJ concluded that plaintiff
was not disabled under Title XVI of the Social Security Act and denied her application for
supplemental security income. AR 10-17. In reaching that decision, the ALJ proceeded through
the five-step analysis set forth in 20 C.F.R. § 416.920 and considered the hearing testimony as
well as plaintiff’s treatment records, which are summarized below.
A. Physical Health Evaluations
Plaintiff was thirty-eight years old on her alleged onset date of disability and 39 years old

on the date she filed her application for SSI. AR 150. Plaintiff was hospitalized from April 12
to April 16, 2015 after complaining of shortness of breath and chest pain for three days. AR 529.
Plaintiff was diagnosed with pericardial effusion secondary to Systemic Lupus Erythematosus
(“SLE”) and was prescribed medication and instructed to follow up with her primary care
provider in one or two weeks. AR 529-530.
On April 22, 2015, plaintiff saw Lydmila Rubinshteyn, M.D., and denied “any major
complaints,” including shortness of breath or joint or muscle pains. AR 589. Dr. Rubinshteyn
reported that plaintiff had a range of motion “within normal limits” and no joint rashes or
swelling. AR 589-90. Dr. Rubinshteyn diagnosed plaintiff with SLE and morbid obesity and
instructed plaintiff to continue with her SLE medication. AR 590.

On June 11, 2015, rheumatologist Dr. Joseph Mosak evaluated plaintiff to assess her
SLE. AR 285-89. Plaintiff complained of fatigue, decreased appetite, night sweats, mouth
ulcers, color changes in her hands and feet, and occasional headaches, but denied joint
complaints, muscle weakness, stiffness, swelling, rash, dizziness, or weakness. AR 285. Dr.
Mosak found that plaintiff had a full range of motion, no joint swelling or tenderness, and a
normal gait. AR 287. Dr. Mosak agreed that plaintiff’s symptoms were “suggestive of lupus”
but ordered blood tests to confirm the diagnosis and “re-start[ed]” plaintiff on
Hydroxychlorquine. AR 288.
Plaintiff was hospitalized from December 23 to December 26, 2015, after complaining
that she had suffered from shortness of breath for the previous five days. AR 314-316, 544.
Hospital personnel noted that plaintiff had been prescribed Hydroxychloroquine since April 2016
but had not been taking it. AR 306, 546, 553. Plaintiff was found to be five weeks pregnant.

AR 546, 550. Plaintiff underwent an echocardiogram and was found to have a right pleural
effusion secondary to SLE. AR 316, 553. Plaintiff was advised that she should continue to take
Hydroxychloroquine as it was “okay in pregnancy” and was discharged after reporting that she
was “feeling well.” AR 553-54.
Dr. Mosak saw plaintiff again on January 27, 2016. AR 290, 368. Plaintiff reported that
she had fatigue and arthritis and that her daily activities were moderately limited. Ibid.
On April 11, 2016, plaintiff saw rheumatologist Dr. Tenedios-Karanikolas, a colleague of
Dr. Mozak, for a follow-up visit regarding her SLE. AR 364. Plaintiff reported that her
symptoms had improved, including her decreased appetite, fatigue, night sweats, mouth ulcers,
color changes in the hands and feet, joint pain, and occasional headaches. Ibid. Dr. Tenedios-

Karanikolas found that plaintiff’s range of motion was normal in the left and right upper
extremities bilaterally. AR 365. Dr. Tenedios-Karanikolas reported that plaintiff’s SLE
“seem[ed] quiescent” and that plaintiff should return in three months or as needed. AR 366.
In May and June 2016, plaintiff had several visits with doctors, including to nephrologist
Dr. Kermilde Jean-Jerome, M.D., for checkups of her blood pressure and adjustments of her
blood pressure medications. AR 643-655. Plaintiff also underwent an induction of labor
because of nonviable congenital abnormalities. AR 291-300. At a follow-up visit for
uncontrolled blood pressure, plaintiff denied headache, chest pain, palpitations, or dizziness. AR
291.
On August 5, 2016, plaintiff returned to Dr. Tenedios-Karanikolas for a follow-up
regarding her SLE. AR 359. Plaintiff stated that her SLE symptoms had improved, including
her fatigue, hypertension, and joint pain, and that her SLE did not limit her activities. Ibid. Dr.
Tenedios-Karanikolas examined plaintiff and found that she had a normal gait, full strength and

no swelling in her upper and lower extremities, and no rashes. AR 361.
On August 23, 2016, plaintiff returned to Dr. Jean-Jerome, who assessed plaintiff for
SLE, hypertension, and chronic kidney disease. AR 656-57. Plaintiff denied any shortness of
breath, headaches, or joint stiffness or pain. AR 657. During a follow-up visit on September 20,
2016, Dr. Jean-Jerome found that plaintiff had full motor strength and sensation in the upper and
lower extremities, and no tenderness. AR 659. Plaintiff again denied shortness of breath,
headaches, or joint pain, and denied dizziness. Ibid. In the visit on August 23, and in another
follow-up visit on October 18, 2016, Dr. Jean-Jerome noted that plaintiff’s hypertension was
“uncontrolled” due to plaintiff’s non-compliance and that he “reinforc[ed]” that plaintiff should
take her medications and adhere to a low-salt diet. AR 656, 662.

On October 20, 2016, plaintiff saw Dr. Peter Scalici after reporting pain in her left foot.
AR 663-65. Dr. Scalici ordered an x-ray and instructed plaintiff to use shoe inserts and purchase
a more supportive sneaker. Ibid. On November 7, 2016, an x-ray of plaintiff’s left foot revealed
no fracture or dislocation but suggested soft tissue swelling at the first toe joint. AR 487.
On November 22, 2016, at a follow-up visit with Dr. Tenedios-Karanikolas, plaintiff
reported that she “fe[lt] good” but had “pain in her joints with prolonged standing.” AR 354.
She said she felt unable to participate in a five-day wellness program because she “gets fatigued”
and has ankle swelling at the end of the day, and that her symptoms moderately limited her
activities. Ibid. Dr. Tenedios-Karanikolas wrote a treatment note stating that plaintiff would
“need a modified schedule” from working five days a week. AR 357. Dr. Tenedios-Karanikolas
noted that plaintiff had full strength and no swelling in her upper and lower extremities, no
rashes, and a normal gait. AR 356.
On January 6, 2017, plaintiff visited the OB/GYN clinic due to another pregnancy. AR

600. Plaintiff reported that she had hypertension and lupus, the latter of which she described as
well-controlled. Ibid. A sonogram revealed fetal demise, and plaintiff underwent surgery for
removal of the fetus later that month. AR 476-77, 683-91.
On February 14, 2017, plaintiff returned for a follow-up and review of labs and
medications with Dr. Jean-Jerome. AR 692-94. Plaintiff denied shortness of breath, fatigue,
fever, headaches, joint pain, or stiffness. Ibid.
On February 27, 2017, plaintiff returned to Dr. Scalici. AR 698. Plaintiff had not
received shoe inserts and said that she had not taken the medicine prescribed because she had
been pregnant and later miscarried. Ibid. Dr. Scalici gave her a steroid injection in her left foot
and prescribed shoe inserts. Ibid.

In March, April, and May 2017, plaintiff had follow-up appointments with Dr. Tenedios-
Karanikolas and Dr. Jean-Jerome to monitor her lupus and laboratory results. AR 350-51, 702-
706. At two of these appointments, plaintiff denied fatigue. AR 350, 702. During a visit on
May 16, 2017, Dr. Jean-Jerome noted that plaintiff “sa[id] she has fatigue sometimes, but
everything else is good.” AR 706. During a visit on March 28, 2017, Dr. Tenedios-Karanikolas
noted that plaintiff’s SLE was “quiescent” and that plaintiff reported joint pain with prolonged
standing and that her symptoms moderately limited her activities. AR 350-53.
On October 31, 2017, plaintiff returned to Dr. Jean-Jerome, complaining of insomnia,
decreased appetite, a transient facial rash, joint pain and shoulder pain, muscle aches, carpal
tunnel, shortness of breath, and chest pain with exertion. AR 709-10.
On January 9, 2018, plaintiff returned to Dr. Tenedios-Karanikolas and denied any new
complaints. AR 346-47. She reported fatigue, joint pain, an inability to engage in prolonged
standing, and that her symptoms moderately limited her activities. AR 347-48. Dr. Tenedios-

Karanikolas characterized plaintiff’s lupus as quiescent and adviser her to avoid the sun. AR
348. On March 6, 2018, plaintiff visited Dr. Tenedios-Karanikolas and reported joint pain, pain
with prolonged standing, and that her symptoms moderately limited her activities. AR 343-44.
Dr. Tenedios-Karanikolas again characterized plaintiff’s lupus as quiescent and advised her to
avoid the sun. Ibid. He also recommended that plaintiff receive blood-work and renewed
plaintiff’s medications. Ibid.
On January 30, 2018, plaintiff saw Dr. Jean-Jerome with complaints of fatigue and
headaches. AR 712-13. Plaintiff returned to Dr. Jean-Jerome on March 6, 2018, complaining of
insomnia, dyspnea, fatigue, and blurry vision, and received referrals to a cardiologist and an
ophthalmologist. AR 715. On July 17, 2018, plaintiff again saw Dr. Jean-Jerome, complaining

of ankle and knee swelling, fatigue, anorexia, and blurry vision. AR 722-23.
B. Consultative Examination
On August 24, 2018, plaintiff attended a consultative examination with Dr. Ram Ravi, as
ordered by the ALJ. AR 396. Plaintiff told Dr. Ravi that she lived with her spouse and three
children and spent her time watching television, listening to the radio, and reading. Ibid.
Plaintiff reported that she had “[p]ain in all joints, rated 8/10, sharp and constant.” Ibid.
Dr. Ravi assessed plaintiff and determined that she was not in acute distress and that her
gait was moderately antalgic. AR 397-98. He also determined that plaintiff had a full range of
motion in her elbows, forearms, and wrists bilaterally, and that her joints were stable and
nontender. AR 398. Dr. Ravi diagnosed plaintiff with lupus, bilateral ankle pain, and
hypertension. Ibid. Dr. Ravi advised plaintiff to go to the emergency room for further
evaluation of her elevated blood pressure, bilateral lower extremity swelling, and calf tenderness.
AR 399. Dr. Ravi determined that the plaintiff had “no limitations sitting” and “[m]oderate

limitations standing, walking, bending, pushing, pulling, lifting, and carrying due to lupus and
bilateral ankle pain.” AR 398.
Dr. Ravi also completed a medical assessment of plaintiff’s ability to do physical work-
related activities. Dr. Ravi reported that plaintiff could occasionally lift or carry up to twenty
pounds, but never carry more than that. AR 401. Dr. Ravi found that plaintiff could sit six hours
at a time and stand or walk for three hours at a time. AR 402. Dr. Ravi further found that
plaintiff could sit for eight hours total in a workday and stand or walk for four hours total, and
that she did not require the use of a cane to walk. Ibid. Dr. Ravi further found that plaintiff
could occasionally reach, push, and pull, could frequently handle, finger, or feel objects with her
hands, and could occasionally operate foot controls. AR 403. Dr. Ravi found that plaintiff could

occasionally climb stairs and ramps, and could occasionally tolerate exposure to humidity, dust,
odors, extreme cold and heat, and vibrations. AR 404-05. Dr. Ravi reported that plaintiff should
never climb ladders or scaffolds, never balance, stoop, kneel, crouch, or crawl, and never be
exposed to unprotected heights, moving mechanical parts, or operating a motor vehicle. Ibid.
C. The ALJ’s Decision
Based on the hearing testimony and the medical record, the ALJ made the following
findings:
• Step One. Plaintiff had not engaged in substantial gainful activity since April 12, 2015,
the alleged onset date. See AR 12; 20 C.F.R. §§ 404.1571, 416.971.
• Step Two. Plaintiff has the following severe impairments: SLE; hypertension; and
obesity. See AR 12; 20 C.F.R. §§ 404.1520(c), 416.920(c). These medically
determinable impairments significantly limit the ability to perform basic work activities
as required by SSR 85-28. See AR 12.
• Step Three. Plaintiff’s impairments did not meet the criteria that meets or medically
equals the severity of one of the listed impairments provided by the Social Security
Administration’s regulations. See AR 13; 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925, 416.926. Plaintiff’s SLE did not constitute a per se
impairment because the evidence did not reflect at least two of the constitutional
symptoms or signs of SLE, because “while the record shows some complaints of fatigue,
the record overall indicates that it is occasional, and not severe.” AR 13. The ALJ added
that the record did not reflect marked limitations in activities of daily living, social
functioning, or the ability to complete tasks in a timely manner due to deficiencies in
concentration, persistence, or pace. Ibid.
• Step Four. Plaintiff had the “residual functional capacity” to perform sedentary work as
defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) with the following additional
limitations. Plaintiff (1) could never push, pull, or operate foot controls with the bilateral
upper and lower extremities, (2) could frequently handle, finger, and feel bimanually, (3)
could occasionally climb ramps or stairs, (4) could never climb ladders, ropes, or
scaffolds, (5) could occasionally balance, stoop, kneel, crouch, or crawl, (6) could never
be exposed to unprotected heights, moving mechanical parts, or operating a motor
vehicle, and (7) could have only occasional exposure to humidity, wetness, dust, odors,
fumes, pulmonary irritants, extreme cold, or extreme heat. See AR 13; 20 C.F.R. §§
404.1529, 416.929; SSR 16-3p.
• Step Five. Plaintiff retained the ability to perform several jobs that existed in significant
numbers in the national economy, including the three sedentary occupations of order
clerk, addresser, and electronics assembler. See AR 16-17; 20 C.F.R. §§ 404.1569,
404.1569a, 416.969, 416.969a.
Plaintiff sought review of the ALJ’s decision from the Social Security Administration
Appeals Council. AR 5-6. The council denied plaintiff’s appeal on June 12, 2019, providing
plaintiff with a final decision by the Commissioner. AR 1. Plaintiff then filed this action.
STANDARD OF REVIEW
Claimants who are denied disability benefits by the Social Security Administration may
seek judicial review. 42 U.S.C. § 405(g). In reviewing a final decision of the Commissioner, the
court does not “decide de novo whether a claimant was disabled” or take a fresh pass at the
ALJ’s five-step analysis under the Social Security Act. Melville v. Apfel, 198 F.3d 45, 52 (2d
Cir. 1999) (citations omitted).
Instead, the court’s review is limited to two areas. Shaw v. Chater, 221 F.3d 126, 131 (2d
Cir. 2000). First, the court reviews the Commissioner’s decision for legal error. Ibid. This
inquiry entails asking whether the claimant has had “a full hearing under the [Commissioner’s]
regulations and in accordance with the beneficent purposes of the Act.” Cruz v. Sullivan, 912

F.2d 8, 11 (2d Cir. 1990).
Second, the court reviews whether “substantial evidence” supports the Commissioner’s
decision. Shaw, 221 F.3d at 131 (quoting 42 U.S.C. § 405(g)); Tejada v. Apfel, 167 F.3d 770,
773 (2d Cir. 1999). The Second Circuit has described substantial-evidence review as “a very
deferential standard of review—even more so than the ‘clearly erroneous’ standard.” Brault v.
Comm’r of Soc. Sec., 683 F.3d 443, 447 (2d Cir. 2012) (citing Dickinson v. Zurko, 527 U.S. 150,
153 (1999)). Courts applying this standard will not disturb the Commissioner’s factual findings
if a reasonable mind could find “adequate” support for them. Biestek v. Berryhill, 139 S. Ct.
1148, 1154 (2019). Nevertheless, the Commissioner’s findings must be supported by more than
a “mere scintilla” of evidence. Ibid. To determine whether the Commissioner’s determination is

supported by substantial evidence, the reviewing court must “examine the entire record”—
including “contradictory evidence and evidence from which conflicting inferences can be
drawn.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (citation and internal quotation
marks omitted). When substantial evidence in the record supports the Commissioner’s findings,
those findings are conclusive and must be upheld. 42 U.S.C. § 405(g); see Cichocki v. Astrue,
729 F.3d 172, 175-76 (2d Cir. 2013).
After completing its review, the district court may “enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing” the Commissioner’s
decision. 42 U.S.C. § 405(g). Remanding to the Commissioner is appropriate when “the
Commissioner has failed to provide a full and fair hearing, to make explicit findings, or to have
correctly applied the regulations.” Rose, 202 F. Supp. 3d 231, 239 (E.D.N.Y. 2016). A remand
is also appropriate “[w]here there are gaps in the administrative record.” Rosa, 168 F.3d at 82-
83 (citations and internal quotation marks omitted). The court retains discretion to remand the

case with or without a rehearing. 42 U.S.C. § 405(g).
DISCUSSION
Plaintiff and the Commissioner have each moved for judgment on the pleadings.
As explained below, the Commissioner applied the law correctly and made factual findings that
were supported by substantial evidence. Shaw, 221 F.3d at 131 (quoting 42 U.S.C. § 405(g)).
Plaintiff’s arguments to the contrary lack merit.
I. The ALJ’s conclusion that plaintiff is not disabled based on her physical
limitations is supported by substantial evidence.
The ALJ did not err in concluding that the plaintiff was not disabled. In reaching that
conclusion, the ALJ considered the entire medical record, including the four requisite categories
of evidence (i) “the objective medical facts”; (ii) “diagnoses or medical opinions based on such
facts”; (iii) “subjective evidence of pain or disability testified to by the claimant or others”; and
(iv) “the claimant’s educational background, age, and work experience.” Brown, 174 F.3d at 62.
The ALJ first noted plaintiff’s age and education level. AR 14. The ALJ then acknowledged
that plaintiff had lupus, reported joint pain, which she said affected her ability to stand or walk;
took medications that sometimes caused drowsiness or dizziness, and experienced insomnia,

among other symptoms. Ibid. The ALJ nonetheless concluded that plaintiff retained the residual
functional capacity to perform sedentary work with additional limitations based on the record as
a whole. Ibid. The ALJ observed that plaintiff’s “lupus ha[d] been stable and quite well-
controlled with medications,” that plaintiff “reported her symptoms only moderately limited her
activities,” that she “ha[d] complained of occasional fatigue at times, but has consistently denied
other symptoms,” and that her physical exams “ha[d] consistently been normal.” AR 15. The
ALJ also addressed plaintiff’s hypertension but observed that it was “relatively asymptomatic
and also would not impose further limitations beyond” those set forth in the ALJ’s recount of

plaintiff’s residual functional capacity. Ibid.
The ALJ acknowledged that plaintiff testified at the hearing that she had “very significant
limitations with daily activities.” Ibid. The ALJ found, however, that plaintiff’s testimony was
inconsistent with her treatment notes, which show that she consistently denied severe symptoms
and reported “no more than a moderate impact upon functioning.” Ibid. Courts in this circuit
have upheld an ALJ’s finding that a claimant is not disabled, even where the claimant testifies to
having severe limitations, if that testimony is inconsistent with the record as a whole. See, e.g.,
Grygielko-Sanchez v. Comm’r of Soc. Sec., No. 16-CV-5357 (NG), 2018 WL 6335412, at *8
(E.D.N.Y. Dec. 4, 2018) (affirming ALJ’s finding of non-disability despite plaintiff’s testimony
to a higher level of incapacitation because it “is not otherwise reflected in the record”); Puente v.

Comm’r of Soc. Sec., 130 F. Supp. 3d 881, 892-93 (S.D.N.Y. 2015) (holding that ALJ properly
found plaintiff’s testimony about the severity of his ailments to be unsupported by the medical
record, and that the ALJ properly relied on the testimony of a vocational expert that plaintiff was
not disabled).
The ALJ also adequately considered the opinions of the medical sources in the record. In
determining a claimant’s residual functional capacity, the ALJ considers the record as a whole
and is not required to accept the opinion of any medical expert in its entirety. See Matta v.
Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (“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 residual functional capacity finding that was
consistent with the record as a whole.” (citation omitted)). In weighing a medical opinion, the
ALJ must consider, among other factors, “the supportability of the medical opinion, particularly
medical signs and laboratory findings,” “the consistency of the medical opinion with the record

as a whole,” and “other factors that may support or contradict the opinion.” 20 C.F.R.
§ 416.927(c); see Yucekus v. Comm’r of Soc. Sec., 829 F. App’x 553, 557 (2d Cir. 2020) (citing
20 C.F.R. § 416.927(c)).
Here, the ALJ gave “significant weight” to the opinion of Dr. Ravi, plaintiff’s sole
consultative examiner, who found that plaintiff would be able to perform light work with
limitations. AR 15, 396-99. The ALJ explained that Dr. Ravi’s finding of non-disability was
consistent with the medical record, given that plaintiff had denied frequent lupus flares, denied
chronic symptoms beyond occasional fatigue, and reported only moderate limitations in daily
functioning. AR 15-16. Moreover, the ALJ ultimately limited plaintiff’s residual functional
capacity to sedentary work—an even more restricted category of work than Dr. Ravi

recommended—so as “to accommodate [plaintiff’s] complaints of occasional fatigue noted in the
medical records.” Ibid.
The ALJ also adequately considered Dr. Tenedios-Karanikolas’s treatment note stating
that plaintiff was unable to work five days a week and needed a modified schedule. The ALJ
gave this opinion “little weight” because it was inconsistent with plaintiff’s treatment records,
again noting that plaintiff denied frequent lupus flares or chronic symptoms beyond occasional
fatigue, and consistently reported moderate limitations. AR 16. Courts in this circuit have
upheld an ALJ’s determination that a plaintiff is not disabled where a medical source opined that
the plaintiff could not work, but that medical source was inconsistent with the record as a whole.
See, e.g., Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (“[T]he opinion of the treating
physician is not afforded controlling weight where . . . the treating physician issued opinions that
are not consistent with other substantial evidence in the record.” (citation omitted)); Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (affirming the ALJ’s decision not to credit a treating

physician’s opinions because they were not supported by objective medical evidence); Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“When other substantial evidence in the record conflicts
with the treating physician’s opinion . . . that opinion will not be deemed controlling. And the
less consistent that opinion is with the record as a whole, the less weight it will be given.”
(citation omitted)). The ALJ’s decision is supported by substantial evidence.
II. Plaintiff’s arguments that the ALJ’s decision is inadequately supported by
substantial evidence are unavailing.

Plaintiff argues for remand on several grounds, but none are persuasive. Plaintiff first
argues that the ALJ “did not explain” whether he found credible plaintiff’s hearing testimony
that she experienced dizziness and drowsiness and needed daytime naps of up to two hours. Pl.’s
Mem. of L. in Supp. of Mot. for J. on Pleadings 21 (“Pl.’s Br.”) (Dkt. #10). The regulations
require a two-step process for evaluating the credibility of a claimant’s assertions about her
limitations. First, the ALJ must decide whether the claimant suffers from a medically
determinable impairment that could reasonably be expected to produce the alleged symptoms.
20 C.F.R. § 404.1529(b). Second, the ALJ must consider “the extent to which [claimant’s]
alleged functional limitations and restrictions due to pain or other symptoms can reasonably be
accepted as consistent with the medical signs and laboratory findings and other evidence” on the
record. 20 C.F.R. § 404.1529(a). Here, the ALJ met both requirements. The ALJ first found
that plaintiff had three impairments—SLE, hypertension, and obesity—and that these
impairments “could reasonably be expected to cause some of [plaintiff’s] alleged symptoms.”
AR 12; see AR 14. But at the second step, the ALJ found that while plaintiff testified at the
hearing that she suffered “very significant limitations with daily activities,” this testimony “[was]
not consistent with [plaintiff’s] denial of severe symptoms reflected in the treatment notes, or her
consistent reports that her symptoms have no more than a moderate impact upon functioning.”

AR 15. The Second Circuit has stated that “the ALJ is required to take the claimant’s reports
of . . . limitations into account but is not required to accept the claimant’s subjective complaints
without question; he may exercise discretion in weighing the credibility of the claimant’s
testimony in light of the other evidence in the record.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.
2010); see 20 C.F.R. § 404.1529(a); e.g., Puente, 130 F. Supp. 3d at 893-95 (S.D.N.Y. 2015)
(holding that the ALJ properly considered evidence in the medical record that was inconsistent
with claimant’s statements about the severity of his complaints); Roman v. Colvin, 278 F. Supp.
3d 671, 677 (W.D.N.Y. 2015) (finding that plaintiff’s statements regarding the intensity and
limiting effects of her symptoms are inconsistent with her prior statements, actions, and medical
evidence); Roettinger v. Colvin, No. 14-CV-1135 (ADS), 2015 WL 4897525, at *12-22

(E.D.N.Y. Aug. 14, 2015) (finding substantial evidence to support the ALJ’s conclusion that
claimant’s testimony as to the severity of her symptoms was not credible in light of the objective
medical evidence). The ALJ therefore adequately considered plaintiff’s testimony regarding her
dizziness and drowsiness.
Second, plaintiff argues that the ALJ’s decision was erroneous because “prolonged or
extreme fatigue [is a] symptom of lupus,” with which plaintiff was undisputedly diagnosed. Pl’s
Br. 21; see AR 15. But a diagnosis of SLE, without more, does not require a finding of
disability, and courts in this circuit have consistently upheld a finding of non-disability even
where a plaintiff is undisputedly diagnosed with SLE. See 20 C.F.R. Pt. 404, Subpt. P, App’x 1,
§ 14.02 (explaining the circumstances under which SLE qualifies as disabling); e.g., Bahaga v.
Comm’r of Soc. Sec., No. 19-CV-05014 (KPF) (RWL), 2020 WL 5755020, at *6-8 (S.D.N.Y.
July 2, 2020) (holding that plaintiff was no longer disabled because her lupus, among other
ailments, had stabilized); Burton v. Berryhill, No. 14-CV-7525 (ADS), 2019 WL 1936726, at *3-

10 (E.D.N.Y. May 1, 2019) (holding that plaintiff was not disabled despite a lupus diagnosis,
among other ailments); De Gonzalez v. Berryhill, No. 16-CV-06723 (JMA), 2018 WL 6834474,
at *7-12 (E.D.N.Y. Dec. 28, 2018) (holding that plaintiff’s impairments due to lupus did not
medically equal a listed impairment). Here, the ALJ acknowledged plaintiff’s SLE diagnosis but
found that “the record overall indicates that [plaintiff’s fatigue] is occasional, and not severe”
and that “the record does not show marked limitations in activities of daily living, social
functioning, or the ability to complete tasks.” AR 13. Plaintiff’s treatment notes consistently
describe plaintiff’s lupus as clinically “quiescent.” See AR 344, 348, 362, 366, 371. And
plaintiff often reported that her fatigue had “improved,” AR 276, 359, or denied fatigue
altogether, AR 657, 693, 704, 707, 709. The ALJ did not err by basing his residual functional

capacity determination on the record as a whole rather than on the fact of plaintiff’s lupus
diagnosis.
Third, plaintiff suggests that the ALJ erred in light of Dr. Tenedios-Karanikolas’s
“judgment that her fatigue would interfere with her ability to persist at a wellness program five
days a week.” Pl.’s Br. 21; see AR 350, 354, 357. In fact, the treatment notes indicate only that
plaintiff reported that she was unable to participate in such a program—not that Dr. Tenedios-
Karanikolas evaluated her suitability for the program. See AR 350, 354, 357. To the extent that
plaintiff challenges the ALJ’s decision to give “little weight” to Dr. Tenedios-Karanikolas’s
statement that plaintiff should have a modified work schedule, that challenge is unpersuasive for
reasons already discussed above—namely, that the ALJ has the discretion to give little weight to
medical opinions that are inconsistent with the record as a whole. See Halloran, 362 F.3d at 32;
Veino, 312 F.3d at 588. Here, Dr. Tenedios-Karanikolas’s treatment notes from the same time
period describe plaintiff’s SLE as “quiescent” and her fatigue as “improved.” AR 352, 357, 362;

e.g., Arbello v. Comm’r of Soc. Sec., No. 18-CV-982 (MKB), 2019 WL 1384094, at *9-11
(E.D.N.Y. Mar. 27, 2019) (affirming the ALJ’s decision not to give controlling weight to a
physician’s opinion because it conflicted with the physician’s own treatment notes that suggested
plaintiff’s lupus was improving with medication); Burton, WL 1936726, at *3-10 (concurring
with the ALJ that the record lacked sufficient medical evidence to justify affording controlling
weight to a doctor’s opinion that claimant had severe limitations due to lupus when it was
contradicted by the doctor’s own treatment notes). Dr. Tenedios-Karanikolas’s treatment notes
do not warrant remand.
Finally, plaintiff argues that the ALJ erred because plaintiff “regularly and consistently
complained of fatigue.” Pl.’s Br. 23. But this argument misunderstands the relevant inquiry:

“[e]ven where the administrative record may also adequately support contrary findings on
particular issues, the ALJ’s factual findings must be given conclusive effect so long as they are
supported by substantial evidence.” Genier, 606 F.3d at 49; e.g., Morales v. Berryhill, 484 F.
Supp. 3d 130, 149 (S.D.N.Y. 2020) (holding that the ALJ’s residual functional capacity finding
was supported by substantial evidence “even if there was also substantial evidence to support a
contrary conclusion.”). Plaintiff also points to the fact that there are multiple instances in the
record showing that she complained of fatigue, but just one instance when plaintiff reported
“occasional fatigue.” Pl.’s Br. 22 (citing AR 719-20); see AR 13. But the ALJ’s conclusions
find support beyond the number of times plaintiff used the word “occasional” in reporting her
symptoms, because the record overall shows that plaintiff often reported no fatigue at all or
improved fatigue. Indeed, plaintiff concedes this fact in her brief. Pl.’s Br. 22-23 (“There were
times when [plaintiff] reported no fatigue or improved fatigue.” (citing AR 276, 359, 657, 664,
693, 704, 707, 709)). Accordingly, the ALJ’s findings about plaintiff’s fatigue were supported

by substantial evidence.
CONCLUSION
The ALJ’s conclusion was legally sound and supported by substantial evidence.
Accordingly, plaintiff’s motion for judgment on the pleadings is denied, and the Commissioner’s
motion is granted. The Clerk of Court is respectfully directed to enter judgment in favor of the
Commissioner and dismiss the complaint.
SO ORDERED.
/s/ Rachel Kovner
RACHEL P. KOVNER
United States District Judge

Dated: June 19, 2022
Brooklyn, New York

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308068. Public record. Not legal advice.