Spampinato v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------X

RENATO SPAMPINATO,

Plaintiff,

MEMORANDUM & ORDER

-against- 20-CV-0959 (JS)

ANDREW SAUL, COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

---------------------------------------X

APPEARANCES

For Plaintiff: Richard Blake Seelig, Esq.

Seeling Law Offices, LLC

299 Broadway, Suite 1600

New York, New York 10007

For Defendant: Dennis J. Canning, Esq.

United States Attorney’s Office

Eastern District of New York

c/o SSA/OGC

601 East 12th Street, Room 965

Kansas City, Missouri 64106

SEYBERT, District Judge:

Plaintiff Renato Spampinato (“Plaintiff”) brings this

action pursuant to Section 205(g) of the Social Security Act (the

“Act”), 42 U.S.C. § 405(g), challenging the Commissioner of Social

Security’s (the “Commissioner”) denial of his application for

Social Security Disability Insurance Benefits. (Compl., ECF No.

1, ¶¶ 1-2.) Presently pending before the Court are the parties’

cross-motions for judgment on the pleadings. (Pl. Mot., ECF No.

9; Pl. Support Memo, ECF No. 10; Pl. Reply, ECF No. 13; Comm’r

Mot., ECF No. 11; Comm’r Support Memo, ECF No. 11-1.) For the

following reasons, Plaintiff’s motion is DENIED, and the

Commissioner’s motion is GRANTED.

BACKGROUND1

I. Procedural History

On April 13, 2016, Plaintiff completed an application

for disability insurance benefits alleging disability as of

October 13, 2013, due to left knee pain, right knee pain, right

shoulder pain, sleep apnea, and high blood pressure. (R. 13, 145,

176.) After Plaintiff’s claim was denied, he requested a hearing

before an Administrative Law Judge (“ALJ”) (R. 53-66, 68-73, 74-

75.) On October 23, 2018, Plaintiff, accompanied by a

representative, appeared for a hearing before ALJ Andrew S. Weiss.

(R. 27-52.) Dr. Steven Golub, a medical expert, testified at the

hearing. (R. 38-48.) Dale Pasculli, a vocational expert, also

testified at the hearing. (R. 49-51.)

In a decision dated November 2, 2018, the ALJ found that

Plaintiff was not disabled. (R. 13-26.) On December 23, 2019,

the Social Security Administration’s Appeals Council denied

Plaintiff’s request for review, and the ALJ’s decision became the

final decision of the Commissioner. (R. 1-6.)

1 The background is derived from the administrative record filed

by the Commissioner on May 29, 2020. (R., ECF No. 8.) “R.”

denotes the administrative record. For purposes of this Memorandum

and Order, familiarity with the administrative record is presumed.

The Court’s discussion of the evidence is limited to the challenges

and responses raised in the parties’ briefs.

Plaintiff initiated this action on February 21, 2020 and

moved for judgment on the pleadings on July 25, 2020. On September

18, 2020, the Commissioner filed a cross-motion for judgment on

the pleadings.

II. Evidence Presented to the ALJ

The Court first summarizes Plaintiff’s employment

history and testimonial evidence before turning to the medical

records and consultative evidence.

A. Testimonial Evidence and Employment History

Plaintiff was born in 1963. (R. 145.) He completed high

school and served as a firefighter for the New York City Fire

Department (“FDNY”) from 1992 to 2013. (R. 31.) At that time, he

left the FDNY because “numerous injuries to his knees and

shoulders” precluded him from discharging his firefighting duties.

(R. 32, 387.)

At the time of the October 23, 2018 hearing, Plaintiff

was fifty-five years old. (R. 145.) He testified that he retired

from FDNY due to a disability. (R. 32.) On two occasions in

December 2016 and January 2017, however, he worked as a back-up

snowplow operator. (R. 30-31.) Plaintiff complained of

debilitating pain from both his knees and his shoulder. (R. 33.)

He explained that he underwent left knee surgery in 1986, prior to

joining the FDNY; two right knee surgeries while working in the

FDNY; and right shoulder surgery after leaving the FDNY.

(R. 33-34.)

Upon questioning from his attorney, Plaintiff explained

that he suffers from osteoarthritis. (R. 34.) He testified that

he can walk only short distances and stand for fifteen minutes

before his muscles “tighten[] up” and his joints “get sore.”

(R. 34-35.) Plaintiff further testified that to alleviate the

pain he alternates between sitting and standing, and he stretches

and uses ice to get comfortable. (R. 35-36.) According to

Plaintiff, he can sit for two hours and stand for two hours before

his knees become aggravated by swelling and joint pain. (R. 36.)

Describing his daily activities, Plaintiff stated that he gets his

teenage kids out in the mornings, drives them to school a few miles

away, does a “little light shopping,” and helps his wife with

laundry and dinner. (R. 36-38.) Although Plaintiff drives his

kids to school, he cannot go on long drives, because he needs to

take breaks to “stretch around a little while.” (R. 37-38.)

B. Medical Evidence

Prior to the alleged disability onset date, the medical

record shows that Plaintiff received three knee surgeries. First,

in 1986, Plaintiff underwent arthroscopic surgery on his left knee.

(R. 258.) Second, in 1995, Plaintiff had reconstructive surgery

on the anterior cruciate ligament (“ACL”) in his right knee after

sustaining an injury while working as a firefighter. (R. 338.)

Third, in 2008, he underwent arthroscopic surgery on his right

knee. (R. 258, 338.) Plaintiff also injured his right shoulder

in 2007 and attended physical therapy. (R. 338.) He returned to

work as a firefighter after each of his injuries. (R. 338.)

Plaintiff suffered another injury while on duty as a

firefighter on October 7, 2013. (R. 342.) Upon examination,

Plaintiff’s knees showed tenderness and swelling with limited

range of motion. (R. 342.) He underwent an MRI, which revealed

prior ACL reconstruction and some meniscus tears. (R. 333-34.)

Plaintiff received Naprosyn and was referred to an orthopedist to

start physical therapy. (R. 341-42.)

1. FDNY Medical Board

The FDNY’s Chief Medical Officer, Dr. K. Kelly, reviewed

Plaintiff’s disability retirement application in a memorandum

dated November 27, 2013. (R. 398-99.) Dr. K. Kelly confirmed

Plaintiff’s prior diagnoses regarding his knees and right shoulder

and recommended limited service, concluding Plaintiff has a

partial permanent disability that renders him unfit for FDNY work

beyond light duty. (R. 398-99.)

On April 23, 2014, the FDNY Medical Board conducted an

interview and examination of Plaintiff. (R. 385-87) After

reviewing Plaintiff’s history of injuries and interview and

examination findings, the Medical Board found Plaintiff is

permanently disabled because of his right knee, particularly his

degenerative joint disease, but not due to his right shoulder, as

there was no evidence of a work-related shoulder injury. (R. 387.)

The Medical Board reaffirmed this finding in a September 24, 2014

memorandum, which characterized Plaintiff’s disability as “due to

the progression of his long standing osteoarthritis.” (R. 389.)

By subsequent memoranda, the Medical Board affirmed its prior

decisions awarding ordinary disability benefits, rather than

accidental disability benefits. (R. 391, 393, 395, 397.) As a

result, the Medical Board stated that Plaintiff may engage in a

suitable gainful employment. (E.g., R. 397.)

2. Initial Orthopedic Treatment

Shortly thereafter, Plaintiff resumed his course of

treatment for shoulder and knee pain before Dr. Anne Kelly, a

board-certified orthopedic surgeon who had performed his 2008

arthroscopic surgery. (See generally R. 242-61.) On physical

examination, Dr. A. Kelly found medial and lateral joint line

tenderness and 1+ effusion. (R. 256.) Plaintiff’s range of motion

was slightly limited, and his Lachman test was mild. (R. 256-57.)

Finding that Plaintiff’s right knee was “stable” but “painful,”

Dr. A. Kelly recommended he continue Naprosyn, recommence physical

therapy, and begin to “use ice more aggressively.” (R. 257.)

At a December 2, 2013 follow-up visit, Dr. A. Kelly noted

Plaintiff’s knee was swollen and tender, but that “he has not been

icing or been to PT or been taking medicine as he finished the

Naprosyn.” (R. 255.) She encouraged Plaintiff to ice every night.

(R. 255.) Plaintiff returned to Dr. A. Kelly on March 10, 2014,

this time to receive treatment for “his new injury to his right

shoulder,” which he claimed had been increasingly bothering him

over the previous eight months and causing issues sleeping.

(R. 253.) Prior to the March 10 visit, Plaintiff had undergone an

MRI of his right shoulder. (R. 439-40 (MRI dated February 24,

2014).) The physical examination showed shoulder and biceps

tenderness and pain, and MRI results were consistent with rotator

cuff tearing. (R. 253-54.) Dr. A. Kelly recommended Plaintiff

restart Mobic and reiterated that he should begin physical therapy

and use ice aggressively. (R. 254.) At a follow-up visit dated

May 2, 2014, Dr. A. Kelly observed Plaintiff “remains plagued by

pain, pain at night, pain sleeping,” concluding “[h]e needs a

rotator cuff repair.” (R. 252.)

Plaintiff next visited Dr. A. Kelly on September 5, 2014,

after injuring his left bicep when lifting his motorcycle.

(R. 251.) Physical examination indicated bicep muscle tear and a

“little” weakness in supination, but otherwise Dr. A. Kelly found

Plaintiff had “excellent full range of motion of the shoulder and

elbow.” (R. 251.) Plaintiff also reported “intermittent right

knee symptoms, which he treats with ice and Advil.” (R. 251.)

Dr. A. Kelly advised Plaintiff to return for evaluation of the

right knee and right shoulder if the pain he reported persisted.

(R. 251.)

Plaintiff returned to Dr. A. Kelly on November 12, 2014,

to review X-rays of his right knee. (R. 250.) According to Dr.

A. Kelly’s treatment notes, the X-rays showed the ACL hardware,

significant lateral joint narrowing, and moderate to severe

lateral degenerative joint disease. (R. 250.) Reviewing a

subsequent MRI, Dr. A. Kelly observed cartilage loss and medial

meniscal tearing. (R. 249.) Plaintiff also reported episodes

where his knee would give way, prompting Dr. A. Kelly to perform

an aspiration and injection. (R. 249.) She further noted that

Plaintiff “may be a candidate for an arthroscopy,” but “it would

have diminished results based on the extent of arthritis in his

knee.” (R. 249.)

On December 4, 2014, Plaintiff underwent right shoulder

arthroscopy with rotator cuff repair with Dr. A. Kelly. (R. 260-

61.) The post-operative diagnosis was rotator cuff tear,

impingement, and labral tear. (R. 260.) At a December 12, 2014

follow-up visit, Dr. A. Kelly opted against starting Plaintiff on

physical therapy, observing he was “doing very well.” (R. 247.)

Plaintiff “continue[d] to regain motion on his own without PT.”

(R. 246.) Dr. A. Kelly also assessed Plaintiff’s right knee as

improved, noting he “continues to get relief from the injection”

and recommending he use an exercise bike or elliptical machine.

(R. 246.) Plaintiff remained positive about the outcome of his

right shoulder surgery throughout spring 2015, consistently

reporting that he was “doing very well” and was “happy with the

results.” (R. 244-45.) In light of this, including Plaintiff’s

reports that he was not experiencing pain, Dr. A. Kelly found

physical therapy unnecessary. (R. 244-45.)

3. Treatment for Sleep Apnea

On May 23, 2014, Plaintiff presented to Dr. Jerry Ipe,

D.O., for treatment of obstructive sleep apnea. (R. 263.)

Plaintiff advised that he was “still not tolerating” previously

prescribed continuous positive airway pressure (“CPAP”) machines.

(R. 263.) To help him sleep, Plaintiff reported drinking wine and

taking Ambien. (R. 263.) Dr. Ipe ordered a sleep study, found

that Plaintiff suffered from severe obstructive sleep apnea,

insomnia, and questionable alcohol withdrawal, and directed

Plaintiff to limit alcohol consumption at night. (R. 262.) The

sleep study showed severe sleep disordered breathing (R. 282),

which Dr. Ipe characterized as obstructive sleep apnea in a July

31, 2014 follow-up visit (R. 265). As a result, Dr. Ipe prescribed

a CPAP machine and nasal pillows. (R. 266-67.) When Plaintiff

returned to Dr. Ipe on December 2, 2014, Dr. Ipe continued to note

insomnia and severe obstructive sleep apnea. (R. 268.) At

subsequent visits in August and November 2015, Dr. Ipe noted that

Plaintiff was tolerating the CPAP better, although Plaintiff

consistently reported fatigue. (R. 271, 274.) Dr. Ipe also

considered whether Plaintiff’s fatigue was caused by “other

etiology,” such as low testosterone and vitamin D levels, and if

alcohol withdrawal caused him to wake at night. (R. 273, 276.)

4. Subsequent Orthopedic Treatment

Almost a year after seeking treatment with Dr. A. Kelly,

on March 28, 2016, Plaintiff began to see Dr. Charles Milchteim

for bilateral knee and right shoulder pain that started in fall

2015. (R. 306.) Plaintiff reported that Advil and Tylenol

provided “good relief”; however, his symptoms worsened with

sitting, standing, twisting, walking, bending, squatting,

kneeling, lifting, exercise, stairs, and lying in bed, but improved

with ice, heat, and massage. (R. 306.) On physical examination,

Dr. Milchteim found right shoulder tenderness, decreased range of

motion, positive impingement test, and bilateral knee tenderness,

albeit with stability and full strength. (R. 307-08.) He further

found that Plaintiff’s gait was non-antalgic, and that he suffered

from joint pain, sleep disorders, and was obese. (R. 307-08.)

Based on the foregoing, Dr. Milchteim diagnosed Plaintiff with

moderate osteoarthritis of the right shoulder, advanced

osteoarthritis of the right knee, and mild to moderate

osteoarthritis of the left knee. (R. 308.) He recommended

physical therapy for the right shoulder and bilateral knee

injections. (R. 308.)

Shortly thereafter, Plaintiff began to receive Orthovisc

injections to both knees. (R. 300, 303, 311.) Plaintiff

invariably reported the injections were ineffective (R. 311),

“helped about 60 percent” (R. 300, 303), and “helped about 40

percent” (R. 296). Throughout this time, Dr. Milchteim’s

examination findings were consistent.

Plaintiff also saw Dr. Shyam Vekaria, a colleague of Dr.

Milchteim’s, in September and December 2016. Dr. Vekaria found

Plaintiff suffered from joint pain; sleep disorders; right knee

effusion, tenderness, crepitus, and decreased range of motion;

mildly antalgic gait; and left knee tenderness and decreased range

of motion. (R. 374-75, 377-78.) Physical examination revealed

Plaintiff had full leg strength, normal straight leg raises, and

no knee instability. (R. 375.) Dr. Vekaria diagnosed Plaintiff

with post-traumatic osteoarthritis of the right knee and primary

osteoarthritis of the left knee. (R. 375.) He also believed

Plaintiff was a candidate for a total knee replacement of the right

knee; Plaintiff advised he would think about it. (R. 375, 378.)

Plaintiff further reported that physical therapy provided relief

to his symptoms. (R. 378.)

On March 20, 2017, Plaintiff returned to Dr. A. Kelly

after a nearly two-year absence. Physical examination revealed

Plaintiff’s knees had decreased range of motion and were tender.

(R. 382.) Plaintiff attended physical therapy at the Department

of Veterans Affairs in June and July 2017, reporting improvement

of his intermittent right knee pain. (R. 411.)

5. Orthopedic Treatment with Dr. Steinvurzel

On March 26, 2018, Plaintiff established care with Dr.

Joshua Steinvurzel, a board-certified orthopedic surgeon, for an

“evaluation of pain and swelling in his right knee that occurred

several years ago.” (R. 423.) Plaintiff reported “moderate to

severe pain and swelling,” with discomfort “localized to the medial

aspect of the knee.” (R. 423.) He described the pain as having

a near-constant “aching quality” that had been progressively

worsening over time, especially when walking, squatting, and

pivoting. (R. 423.) Plaintiff added that the pain was partially

relieved by rest. (R. 423.) Dr. Steinvurzel reviewed a prior X-

ray which showed moderate to advanced tricompartmental

osteoarthritis. (R. 423; see also R. 406, 408.) Based on his

examination, which showed Plaintiff was overweight and suffered

from tenderness, decreased range of motion, and decreased

quadriceps strength (4+/5), Dr. Steinvurzel assessed severe

primary localized osteoarthritis of the right knee. (R. 424-25.)

After discussing treatment options, Plaintiff expressed his desire

to proceed with physical therapy. (R. 425.) Those findings were

largely unchanged at a subsequent May 17, 2018 visit, except that

Plaintiff’s right knee was moderately swollen. (R. 431-32.)2 Dr.

Steinvurzel ordered a Monovisc injection. (R. 432.)

At an October 12, 2018 visit, Dr. Steinvurzel completed

a functional assessment of Plaintiff’s ability to work in a form

titled, “Patient’s Functional Assessment to do Sedentary Work.”

(R. 420.)3 In the form, Dr. Steinvurzel opined that Plaintiff

could stand and/or walk for less than two hours in an eight-hour

workday; sit for less than two hours in a workday; lift and carry

more than five pounds but less than ten pounds for one-third of an

eight-hour workday; and lift and carry less than five pounds for

up to two-thirds of an eight-hour workday. (R. 420.) He further

opined that Plaintiff requires frequent fifteen-minute breaks

during the workday and that he suffers from pain which prevents

him from performing eight hours of work. (R. 421.)

C. Opinion Evidence

On June 29, 2016, Plaintiff presented to Dr. Kanista

Basnayake, M.D., for a consultative examination. (R. 324-30.)

Plaintiff reported bilateral knee pain that gets “worse with

2 Plaintiff also complained of pain to his right thumb, X-rays of

which revealed moderate osteoarthritis. (R. 431-32.)

3 At this visit, Plaintiff also complained of pain to his left

elbow, which Dr. Steinvurzel assessed as epicondylitis or tennis

elbow. (R. 435.)

activities” but “better with rest,” and left shoulder pain4 that

“never gets better.” (R. 324.) Plaintiff also described his daily

activities of living, stating he cooks twice weekly, cleans twice

weekly, does laundry once per week, shops once per week, and

performs daily childcare. (R. 325.) In addition, he watches TV,

listens to the radio, reads, and attends physical therapy, medical

appointments, and his children’s sports activities. (R. 325.)

Dr. Basnayake’s examination revealed that Plaintiff weighed 230

pounds and his blood pressure was 106/82. (R. 325.) He reviewed

X-rays that showed degenerative joint disease of the right shoulder

and a loose body in Plaintiff’s left knee. (R. 327, 328-29.)

Plaintiff had a normal gait and stance; could rise from a chair

without difficulty; and needed no help changing for the exam or

getting on or off the exam table. (R. 325.) He had difficulty

walking on his heels and toes and could squat halfway. (R. 325.)

Dr. Basnayake found Plaintiff had full range of motion in all

joints, full strength throughout, and no atrophy. (R. 325-26.)

Based on his examination and review of Plaintiff’s medical history,

Dr. Basnayake diagnosed Plaintiff with high blood pressure, sleep

apnea, bilateral knee pain, and right shoulder pain. (R. 327.)

Dr. Basnayake opined that Plaintiff should avoid driving and

4 Based on the medical record, the Court believes Dr. Basnayake’s

treatment notes incorrectly refer to Plaintiff’s left shoulder,

rather than his right shoulder.

operating machinery due to his sleep apnea condition and that

Plaintiff’s right shoulder and bilateral knee pain caused “very

mild limitations for prolonged standing, walking, climbing,

bending, lifting, carrying, and kneeling.” (R. 327.)

On March 21, 2017, Plaintiff presented to Dr. P. Leo

Varriale, M.D., an orthopedist, for an independent medical

examination. (R. 379-81.) Dr. Varriale observed decreased range

of motion of the right knee, moderate swelling, tenderness, mild

anterior instability (but no medial or lateral instability),

quadriceps atrophy, and patella grinding. (R. 380.) Based on his

physical examination and review of Plaintiff’s medical history,

Dr. Varriale diagnosed him with osteoarthritis of the right knee.

He further opined that Plaintiff has “a moderate disability in

that the claimant cannot lift more than 10 pounds and he cannot

stand or walk for more than 30 minutes at a time.” (R. 380.)

Three weeks later, Dr. Varriale wrote an addendum to his earlier

report to clarify that Plaintiff’s arthritis was related to his

1995 injury.

Last, Dr. Steven A. Golub, M.D., testified at

Plaintiff’s hearing as an independent medical expert. (R. 39.)

Dr. Golub stated that he had listened to the testimony and reviewed

a subset of Plaintiff’s medical records. (R. 39 (testifying to

reviewing R. 242-332).) Dr. Golub opined that Plaintiff did not

have a severe impairment. (R. 40.) He further observed that Dr.

Basnayake’s medical report showed X-ray findings of degenerative

joint disease of the right shoulder and a loose body in the left

knee, and normal findings on the physical examination. (R. 40.)

DISCUSSION

I. Standard of Review

In reviewing the ruling of an ALJ, the Court does not

determine de novo whether the plaintiff is entitled to disability

benefits. Thus, even if the Court may have reached a different

decision, it must not substitute its own judgment for that of the

ALJ. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). If

the Court finds that substantial evidence exists to support the

Commissioner’s decision, the decision will be upheld, even if

evidence to the contrary exists. See Johnson v. Barnhart, 269 F.

Supp. 2d 82, 84 (E.D.N.Y. 2003).

II. The ALJ’s Decision

A. The Five-Step Disability Analysis

Initially, the ALJ found that Plaintiff meets the

insured-status requirements of his claim through December 31, 2019.

(R. 15.) Next, the ALJ applied the familiar five-step disability

analysis and concluded that Plaintiff was not disabled from October

13, 2013, the alleged disability-onset date, through November 2,

2018, the date of the decision. (R. 15-22); see 20 C.F.R.

§ 404.1520. At step one, the ALJ found that Plaintiff had not

engaged in substantial gainful activity since the alleged onset

date. (R. 15.) At step two, the ALJ determined that Plaintiff’s

osteoarthritis constituted a severe impairment, but he concluded

that Plaintiff’s bilateral knee and right shoulder pain, sleep

apnea, and high blood pressure were not severe, finding them

“remote, managed medically or otherwise controlled.” (R. 15-16.)

With respect to Plaintiff’s allegations of sleep apnea, the ALJ

noted that Plaintiff was prescribed a CPAP machine, reported

“feel[ing] well” after follow-up examinations, and that there was

no evidence that Plaintiff sought treatment for the condition after

November 2015, when his course of treatment before Dr. Ipe

concluded. (R. 16.) With respect to his claims of right shoulder

pain, the ALJ relied on Plaintiff’s post-operative examinations,

wherein he reported he was “doing very well,” “happy with the

results” from surgery, and no longer experienced “terrible pain,”

as well as Dr. Kelly’s conclusion that, based on Plaintiff’s post-

operative reports, she did not think that Plaintiff needed to go

to physical therapy. (R. 16.) The ALJ further explained that the

record does not support a finding that Plaintiff’s hypertension

was “uncontrolled or causes more than a minimal limitation in the

claimant’s ability to perform basic work activities.” (R. 16.)

Moreover, although the evidence showed that Plaintiff was obese,

the ALJ concluded that Plaintiff “does not treat specifically for

his obesity and does not allege any significant limitations

resulting from his obesity.” (R. 16.)

Considering the entire record, and not just Plaintiff’s

severe impairments, the ALJ then determined that Plaintiff had the

residual functional capacity (“RFC”) “to perform a medium range of

work,” albeit with the following non-exertional limitations:

[C]laimant is limited to lifting 50 pounds

occasionally and 25 pounds frequently, sitting

for six hours in an eight-hour day and

standing and/or walking for six hours in an

eight-hour day. In addition, claimant can

frequently crawl, crouch, kneel and stoop and

only occasionally be exposed to dust, odors

and other pulmonary irritants.

The ALJ first concluded that although Plaintiff’s

medical impairments could reasonably be expected to produce his

symptoms, Plaintiff’s “statements concerning the intensity,

persistence, and limiting effects of these symptoms are not

entirely consistent with the medical evidence and other evidence.”

(R. 17.) Summarizing Plaintiff’s testimony regarding his pain

symptoms, the ALJ observed that Plaintiff claims he is limited to

short walks and standing for fifteen minutes, at which time he

gets sore joints and muscles and must stretch to get comfortable.

(R. 17.) Plaintiff further testified that in an eight-hour workday

he can sit for two hours and stand for two hours until his joints

swell up and he experiences pain, which he addresses by stretching

out and icing his joints. (R. 17.) Summarizing Plaintiff’s

testimony regarding his daily activities, the ALJ observed that

Plaintiff takes his kids out in the morning, prepares their

breakfast, drives them to school almost every day, does “a little

light shopping where he can lift a couple of bags,” can perform

light laundry, housework, and assists his wife with dinner.

(R. 17.)

The ALJ next explained his conclusion that the medical

evidence did not substantiate Plaintiff’s statements about the

intensity, persistence, or functionally limiting effects of his

pain. He started by summarizing the medical record, beginning

with the October 9, 2013 MRI Plaintiff received on his right knee,

which revealed post ACL reconstruction and a mild degree of

arthrofibrosis; diminished size of medial meniscus with a

superficial horizontal tear of the posterior horn without interval

change; and chronic changes of posterior cruciate ligament and

posterior lateral capsule, but no torn ligaments. (R. 18.) The

ALJ then turned to Plaintiff’s treatment history with Dr. A. Kelly

in the late 2014 through early 2015 time period. The ALJ noted

that Plaintiff reported treating his knee pain with ice and Advil.

(R. 18.) Dr. A. Kelly also reviewed an X-ray of Plaintiff’s right

knee, which revealed lateral joint significant narrowing and

moderate to severe lateral degenerative joint disease. (R. 18.)

While Dr. A. Kelly initially advised Plaintiff that he might be a

candidate for arthroscopy if his symptoms continued, at subsequent

examinations, Dr. A. Kelly noted that Plaintiff’s knee had improved

and that a November 24, 2014 injection provided him with relief,

prompting her to recommend Plaintiff obtain an exercise bike and

elliptical machine. (R. 18.)

The ALJ next referenced Plaintiff’s treatment history

before Dr. Milchteim, where he received Orthovisc injections

throughout 2016 in his bilateral knees after initial examinations

revealed tenderness and limited range of motion without gait

abnormality. (R. 18.) Significantly, the ALJ noted that the

injections relieved approximately 40% of his pain, and a subsequent

X-ray of his left knee showed that his joint spaces were noted to

be well maintained with no signs of degenerative disc disease.

Plaintiff continued to walk with a normal gait at his consultative

examination with Dr. Basnayake on June 29, 2016, where he

complained of dull bilateral knee pain that worsened with

activities but improved with rest. (R. 18.) The ALJ further

discussed Dr. Basnayake’s examination, which revealed Plaintiff

had full range of motion in his bilateral shoulders, hips, knees,

and ankles, as well as stable and non-tender joints. (R. 18.) The

ALJ also noted Plaintiff’s report regarding his daily living

activities, which were consistent with his testimony before the

ALJ. (R. 18.)

The ALJ further observed that while Dr. Vekaria

recommended in December 2016 that Plaintiff may be a candidate for

total knee arthroplasty, Plaintiff reported that physical therapy

provided relief and that he would rather continue physical therapy.

(R. 18.) To that end, the ALJ observed that progress notes from

physical therapy in 2018 indicated that Plaintiff tolerated all

treatment well, with Plaintiff experiencing decreased muscle

tightness, improvement in pain symptoms of his right knee, and

increased muscle length in his bilateral lower extremities.

(R. 18-19.)

In sum, the ALJ found that Plaintiff’s complaints of

significant knee pain were undermined by his conservative treatment

plan, including the fact that Plaintiff “reported at multiple

examinations that he does not take any medication for pain,” even

though his treatment notes reflect that Plaintiff has good relief

with over-the-counter medications. (R. 20.) In support of this

finding, the ALJ referred to Plaintiff’s March 21, 2017 visit to

Dr. Varriale and his treatment notes before Dr. Milchteim.

(R. 19.) Further, the ALJ reasoned that Plaintiff experienced

pain relief with physical therapy and injections. (R. 19.)

Moreover, the ALJ found that Plaintiff “retains the ability to

perform a significant amount of activities of daily living,”

including waking his kids in the morning, preparing their

breakfast, and driving them to school; light shopping; and light

laundry and other housework. (R. 19.) The ALJ also pointed out

that Plaintiff worked as a substitute snowplow operator on two

occasions, which required him to operate the truck for at least

three hours, and that in September 2014, he reported injuries to

his left bicep after lifting his motorcycle. (R. 19.)

Turning to the opinion evidence, the ALJ gave “little

weight” to the opinions of the FDNY Medical Board, which

recommended full disability for Plaintiff due to his right knee,

and of Dr. A. Kelly to the extent she opined Plaintiff was not a

candidate to return to his duties as a firefighter, finding the

conclusions are “conclusory,” do not provide a function-by-

function assessment, and lack functional limitations. (R. 19.)

In any event, the opinions arrogate authority reserved to the

Commissioner to determine disability. (R. 19.)

With respect to Dr. Basnayake’s opinion that Plaintiff

should avoid driving and operating machinery due to his history of

sleep apnea, and that Plaintiff has very mild limitations for

prolonged standing, walking, climbing, bending, lifting, carrying

and kneeling due to his bilateral knee and right shoulder pain,

the ALJ determined it was entitled to “some weight,” observing the

lack of recent treatment for Plaintiff’s sleep apnea diagnosis and

Plaintiff’s statements that he drives. (R. 20.) The ALJ also

gave “some weight” to the opinion of Dr. Golub, who testified at

Plaintiff’s hearing. (R. 20.) The ALJ explained that while Dr.

Golub opined that Plaintiff does not have a severe impairment, he

did not have a complete set of records before him when rendering

that opinion. (R. 20.) Nevertheless, the complete record does

support Plaintiff’s claim that his osteoarthritis is a severe

condition, the ALJ found. (R. 20.)

However, the ALJ determined that the opinions of

Dr. Varriale and Dr. Steinvurzel were entitled to only “little

weight.” (R. 20.) To begin, the ALJ found Plaintiff’s testimony

regarding his daily life activities undermined Dr. Varriale’s

opinion that Plaintiff has a moderate disability that limited him

to lifting more than ten pounds and standing or walking for more

than 30 minutes at a time. (R. 20.) Further, the ALJ determined

that the “medical record does not support the extensive limitations

that Dr. Steinvurzel opined,” including that Plaintiff is limited

to less than two hours of sitting, standing, or walking in an

eight-hour workday; can only lift less than ten pounds for one-

third and less than five pounds for two-thirds of an eight-hour

workday; and has difficulty with gripping and grasping. (R. 20.)

All of Dr. Steinvurzel’s findings were made by way of check boxes.

(R. 20.) Again, the ALJ reasoned that Plaintiff’s “activities of

daily living support that [he] is less limited” than Dr.

Steinvurzel opined. (R. 20.) The ALJ also pointed out that

Plaintiff testified he was able to operate a truck with a snowplow

for at least three hours on two occasions and could do so in the

future. (R. 20.)

Proceeding to step four, the ALJ found that Plaintiff

could not perform past relevant work as a firefighter. (R 21.)

However, the ALJ concluded that there are jobs that exist in

significant numbers in the national economy that Plaintiff can

perform, consistent with his RFC, such as hand packager, kitchen

helper, and cook helper. (R. 21-22.) Accordingly, the ALJ

determined that Plaintiff is not disabled. (R 22.)

III. Analysis

Plaintiff advances the following arguments: (1) the ALJ

erred in finding that the Plaintiff’s bilateral knee pain, right

shoulder pain, sleep apnea, hypertension, and obesity were not

severe impairments under step two; (2) the ALJ failed to follow

the treating physician rule; and (3) the ALJ erred in his

credibility assessment of Plaintiff.

A. Plaintiff’s Severe Impairments

Plaintiff argues that the medical records before the ALJ

contain significantly more than the de minimis level of evidence

required to establish his bilateral knee pain, right shoulder pain,

sleep apnea, hypertension, and obesity impairments are severe.

Contrary to the ALJ’s conclusion that these impairments were

“remote, managed medically or otherwise controlled,” Plaintiff

contends these impairments are well documented in the record and

have caused years of ongoing problems requiring treatment,

medications, and functional limitations. (Pl. Support Memo at

11.) The Commissioner responds that substantial evidence supports

the ALJ’s findings at step two, and, in any event, the ALJ

accounted for Plaintiff’s non-severe impairments in the RFC.

“[T]he standard for a finding of severity under Step Two

of the sequential analysis is de minimis and is intended only to

screen out the very weakest cases.” McIntyre v. Colvin, 758 F.3d

146, 151 (2d Cir. 2014) (citing Dixon v. Shalala, 54 F.3d 1019,

1030 (2d Cir. 1995)). “The ‘mere presence of a disease or

impairment, or establishing that a person has been diagnosed or

treated for a disease or impairment’ is not, itself, sufficient to

deem a condition severe.” Tryon v. Astrue, No. 10-CV-0537, 2012

WL 398952, at *3 (N.D.N.Y. Feb. 7, 2012) (quoting McConnell v.

Astrue, No. 03-CV-0521, 2008 WL 833968, at *2 (N.D.N.Y. 2008)).

Rather, an impairment is severe where it “significantly limits the

plaintiff’s physical and/or mental ability to do basic work

activities.” Truman v. Comm’r of Soc. Sec., No. 14-CV-1195, 2015

WL 5512225, at *4 (N.D.N.Y. Sept. 17, 2015) (citing 20 C.F.R.

§ 404.1520(c); 20 C.F.R. § 404.1521). The plaintiff has the burden

at step two in the sequential evaluation process to demonstrate

the severity of his impairment. Tryon, 2012 WL 398952, at *3

(citing 20 C.F.R. § 404.1520(c)).

To begin, the Court agrees with the Commissioner that

the ALJ’s determination at step two is supported by substantial

evidence, and Plaintiff has not met his burden to show otherwise.

With respect to his hypertension and obesity, Plaintiff points to

no medical evidence that these impairments significantly limit his

ability to do basic work activities or that Plaintiff’s doctors

ascribed any functional limitations to them. Rather, he argues

his obesity was “consistently noted throughout the record.” (Pl.

Support Memo at 12.) But the mere fact Plaintiff has been

diagnosed with hypertension and obesity does not, on its own, make

these impairments severe. Tryon, 2012 WL 398952, at *3; see also

Martin v. Astrue, 337 F. App’x 87, 89 (2d Cir. 2009) (upholding

ALJ’s determination that the plaintiff’s obesity was not a severe

impairment, even where the medical reports diagnosed the plaintiff

with obesity, because those records “provide[d] no evidence of

severe impairment limiting work ability”).

The foregoing analysis applies with equal force to

Plaintiff’s sleep apnea: There is no objective evidence to show

that Plaintiff’s sleep apnea affected his ability to perform work-

related activities. See Truman, 2015 WL 5512225, at *8. Moreover,

as the ALJ found, Plaintiff did not seek treatment for his sleep

apnea after November 2015. Anderson v. Colvin, No. 12-CV-0200,

2014 WL 4269056, at *6 (W.D.N.Y. Aug. 28, 2014) (finding lack of

treatment history relevant in determining whether an impairment is

severe).5 And contrary to Plaintiff’s argument, Dr. Ipe did not

5 The Court recognizes that “a lack of treatment ‘does not, without

more, establish that the impairment was non-severe,’” especially

where other causes may explain the failure to seek treatment,

Canestrare v. Comm’r of Soc. Sec., No. 16-CV-0920, 2017 WL 3130327,

explicitly find Plaintiff’s sleep apnea caused his fatigue. At

most, the medical record on this point is mixed, with Dr. Ipe

identifying “other etiology” for Plaintiff’s fatigue, such as low

testosterone and vitamin D levels, or alcohol withdrawal. “Because

there is substantial evidence in the record to support the ALJ’s

determination with regard to [Plaintiff’s] purported sleep apnea,

it will not be disturbed.” Wavercak v. Astrue, 420 F. App’x 91,

93 (2d Cir. 2011).

Last, the ALJ’s determination that Plaintiff’s right

shoulder pain is not a severe impairment is supported by

substantial evidence, including Plaintiff’s treatment history

before Dr. A. Kelly. As the ALJ correctly pointed out, after his

right shoulder surgery before Dr. A. Kelly, Plaintiff consistently

reported that he was “doing very well” and was “happy with the

results,” which led Dr. A. Kelly to find physical therapy

unnecessary. “A condition is not severe if the impairment improves

from treatment.” Jackson v. Comm’r of Soc. Sec., No. 19-CV-0378,

2020 WL 3063955, at *3 (W.D.N.Y. June 9, 2020) (citing Mongeur v.

Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983)); see also Woodmancy

v. Colvin, 577 F. App’x 72, 74 (2d Cir. 2014) (holding the

plaintiff did not meet his burden to show that various impairments,

at *6 (N.D.N.Y. July 21, 2017) (quoting Hamilton v. Colvin, 8 F.

Supp. 3d 232, 240 (N.D.N.Y. 2013), but notes the ALJ’s conclusion

did not turn on this fact alone.

including sleep apnea, were severe when the plaintiff benefitted

from treatment in ways that minimized their impairing effect). In

any event, the ALJ proceeded with the sequential analysis. In the

remaining steps, the ALJ discussed all of Plaintiff’s medical

treatment and considered Plaintiff’s right shoulder impairments in

determining his RFC. Indeed, the ALJ concluded Plaintiff was

limited to lifting fifty pounds occasionally and twenty-five

pounds frequently, limitations addressed to his right shoulder

impairment.6 “Often, when there are multiple impairments, and the

ALJ finds some, but not all of them severe, an error in the severity

analysis at step two may be harmless because the ALJ continued

with the sequential analysis and did not deny the claim based on

the lack of a severe impairment alone.” Truman, 2015 WL 5512225,

at *5 (citing Tryon, 2012 WL 398952, at *3). “As the ALJ proceeded

with the analysis and included plaintiff’s severe and non-severe

impairments in the RFC determination, there is no basis to remand

this matter based upon the ALJ’s step two analysis.” Tryon, 2012

WL 398952, at *4; see also Reices-Colon v. Astrue, 523 F. App’x

796, 798 (2d Cir. May 2, 2013) (where the ALJ proceeds past step

two and considers the effects of all of the plaintiff’s impairments

through the remainder of the sequential evaluation process, any

error at step two is harmless); Stanton v. Astrue, 370 F. App’x

6 The ALJ also considered the effects of Plaintiff’s sleep apnea

in crafting the RFC. (R. 20.)

231, 233 n.1 (2d Cir. Mar. 24, 2010) (errors at step two are

harmless so long as the ALJ continues with the sequential

analysis); Ann C. v. Comm’r of Soc. Sec., No. 19-CV-0904, 2020 WL

4284132, at *5 (N.D.N.Y. July 24, 2020) (“Even if the ALJ had erred

at step two of the sequential analysis, the Second Circuit has

repeatedly found such errors to be harmless where the ALJ continues

with the remaining steps of the sequential evaluation.”), aff’d

sub nom. Cuda v. Comm’r of Soc. Sec., No. 20-CV-2819, 2021 WL

4887993 (2d Cir. Oct. 20, 2021).

B. Treating Physician Rule

Next, Plaintiff argues that the ALJ erred in giving

“little weight” to the opinion of Dr. Steinvurzel, Plaintiff’s

treating physician. (Pl. Support Memo at 13-20.) According to

Plaintiff, the ALJ “relied on an exaggeration of Plaintiff’s

activities of daily living and the fact that Dr. Steinvurzel’s

assessment included ‘check boxes.’” (Id. at 15.) Further,

Plaintiff argues the ALJ erred in crediting the opinion of Dr.

Golub, the testifying expert, giving it “some weight”

notwithstanding the fact that Dr. Golub had not reviewed all the

medical records relevant to Plaintiff’s condition. (Id. at 17.)

Plaintiff also points out that the ALJ did not apply the factors

typically used to determine how much weight to give the treating

physician. (Id. at 18.) Plaintiff argues that the ALJ cherry-

picked medical evidence that supported a finding of not disabled;

for example, the ALJ gave little weight to Dr. Varriale’s opinion,

which was consistent with the opinion rendered by Dr. Steinvurzel,

but instead gave the most weight to the Dr. Golub. (Id. at 19.)

According to Plaintiff, had the ALJ heeded Dr. Steinvurzel’s

opinion, he would have concluded that Plaintiff’s RFC limited him

to less than sedentary work, not medium work at the ALJ found.

The Commissioner counters that Dr. Steinvurzel’s opinion was not

entitled to controlling weight given his brief treatment history

with Plaintiff. (Comm’r Support Memo at 18.) Regardless, the

Commissioner argues the ALJ appropriately gave Dr. Steinvurzel’s

opinion little weight after considering the medical record as a

whole, which the ALJ found undermined Dr. Steinvurzel’s prescribed

limitations. (Id. at 19-22.) The Court agrees with the

Commissioner.

The Court applies the treating physician rule because

Plaintiff filed his claim before March 27, 2017. See 20 C.F.R.

§ 404.1527. The “treating physician rule” provides that the

medical opinions and reports of a claimant’s treating physicians

are to be given “special evidentiary weight.” Clark v. Comm’r of

Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). The regulations

state:

Generally, we give more weight to medical

opinions from your treating sources . . . .

If we find that a treating source’s medical

opinion on the issue(s) of the nature and

severity of your impairment(s) is well-

supported by medically acceptable clinical and

laboratory diagnostic techniques and is not

inconsistent with the other substantial

evidence in your case record, we will give it

controlling weight.

20 C.F.R. § 404.1527(c)(2). Thus, the opinion of a treating

physician “need not be given controlling weight where [it is]

contradicted by other substantial evidence in the record.” Molina

v. Colvin, No. 13-CV-4701, 2014 WL 3925303, at *2 (S.D.N.Y. Aug. 7,

2014) (internal quotation marks and citation omitted). When an

ALJ does not afford controlling weight to the opinion of a treating

physician, the ALJ must consider several factors: “(1) the length

of the treatment relationship and frequency of the examination;

(2) the nature and extent of the treatment relationship; (3) the

extent to which the opinion is supported by medical and laboratory

findings; (4) the physician’s consistency with the record as a

whole; and (5) whether the physician is a specialist.” Schnetzler

v. Astrue, 533 F. Supp. 2d 272, 286 (E.D.N.Y. 2008). The ALJ must

also set forth “‘good reasons’ for not crediting the opinion of a

[plaintiff’s] treating physician.” Id. at 287. An ALJ provides

“‘good reasons’ for discounting a treating physician’s opinion

that reflect in substance the factors as set forth in [Section]

404.1527(d)(2), even though the ALJ declines to examine the factors

with explicit reference to the regulation.” Crowell v. Comm’r of

Soc. Sec., 705 F. App’x 34, 35 (2d Cir. 2017) (“While the ALJ did

not explicitly discuss the treating physician rule, he nonetheless

stated that [the physician’s] opinion . . . was contradictory to

the rest of the record evidence.”). “Ultimately, an ALJ must

comprehensively set forth her reasons for the weight assigned to

a treating physician’s opinion.” Id. (internal quotation marks

and citation omitted).

As an initial matter, the Court is hard pressed to find

Dr. Steinvurzel was Plaintiff’s treating physician, such that his

opinion should be entitled to controlling weight. The medical

record in this case extends back to 2013, if not earlier. Yet

Plaintiff did not establish care with Dr. Steinvurzel until March

2018. And upon establishing care, Plaintiff visited Dr.

Steinvurzel on just three occasions throughout 2018. “[T]hree

examinations by [a physician] over the course of four months in

2008 does not constitute the type of ‘ongoing relationship’ that

is required for finding that s/he is plaintiff’s treating physician

under the relevant regulations.” Patterson v. Astrue, No.

11-CV-1143, 2013 WL 638617, at *8 (N.D.N.Y. Jan. 24, 2013)

(citations omitted), report and recommendation adopted, 2013 WL

592123 (N.D.N.Y. Feb. 14, 2013); see also Jasen v. Comm’r of Soc.

Sec., No. 16-CV-6153, 2017 WL 3722454, at *10 (W.D.N.Y. Aug. 29,

2017) (“The lack of an established, ongoing relationship undercuts

[the claimant’s] contention that [the physician] should be

considered a treating physician.” (citing cases)).

In any event, an ALJ may decline to give controlling

weight to the treating physician’s opinion “if he is able to set

forth good reason for doing so,” and “the less consistent an

opinion is with the record as a whole, the less weight it is to be

given.” Tryon, 2012 WL 398952, at *5 (first citing Saxon v.

Astrue, 781 F. Supp. 2d 92, 102 (N.D.N.Y. 2011); and then citing

Otts v. Comm’r of Soc. Sec., 249 F. App’x 887, 889 (2d Cir. 2007));

see also Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).

Such is the case here. The ALJ explicitly found that the “medical

record does not support the extensive limitations that Dr.

Steinvurzel opined,” and then proceeded to discuss that evidence.

(R. 20.) First, the ALJ noted that Dr. Steinvurzel delineated

Plaintiff’s limitations in checkbox form, a “not particularly

informative” means of prescribing limitations. Halloran, 362 F.3d

at 32 (concluding the ALJ appropriately declined to give a

physician’s checkbox opinion controlling weight). Next, the ALJ

examined Plaintiff’s longitudinal treatment history before Dr. A.

Kelly and Dr. Milchteim, both orthopedists. These providers

treated Plaintiff for knee pain7 at dozens of visits over several

years, with each reporting pain relief with treatment, including

over-the-counter medications and injections. There is little, if

any, support in Dr. A. Kelly’s or Dr. Milchteim’s treatment history

7 Dr. A. Kelly also treated Plaintiff’s right shoulder pain.

for the extensive limitations Dr. Steinvurzel prescribed. Last,

the ALJ reasoned that Plaintiff’s daily activities, as reported by

Plaintiff at his hearing and to Dr. Basnayake, showed he was not

as limited as Dr. Steinvurzel indicated. As the foregoing makes

clear, the ALJ set forth good reasons for discounting Dr.

Steinvurzel’s opinion, which was inconsistent with the medical

record as a whole.

Plaintiff’s remaining arguments are unavailing. To the

extent Plaintiff faults the ALJ for not explicitly analyzing each

factor provided in 20 C.F.R. § 404.1527(c), it is well established

that “no such slavish recitation of each and every factor” is

required “where the ALJ’s reasoning and adherence to the regulation

are clear,” as they are here. Atwater v. Astrue, 512 F. App’x 67,

70 (2d Cir. 2013); see also Crowell, 705 F. App’x at 35. Nor does

the Court find issue with the ALJ’s determination to give little

weight to the opinion of Dr. Varriale’s, who saw Plaintiff once

and whose prescribed limitations were undermined by Plaintiff’s

testimony and reports of daily activities to Dr. Basnayake.

Finally, Plaintiff faults the ALJ for giving some weight to the

opinion of Dr. Golub, who testified that he had not reviewed all

the medical records relevant to Plaintiff’s condition. At first

glance this is concerning. However, on closer examination the

Court notes that the limited subset of records Dr. Golub reviewed

runs eighty pages and includes Plaintiff’s treatment history

before Dr. A. Kelly, Dr. Ipe, and Dr. Milchteim. In any event,

the ALJ acknowledged the shortcomings in Dr. Golub’s opinion and

explicitly relied on the complete medical record in concluding

certain of Plaintiff’s impairments are not severe. Plaintiff’s

contention that “the ALJ relied most” on Mr. Golub’s testimony in

arriving at the RFC is not an accurate characterization of the

ALJ’s analysis.

C. The ALJ’s Credibility Assessment

Last, Plaintiff argues that the ALJ failed to properly

assess Plaintiff’s subjective complaints of pain, instead

mischaracterizing his daily activities and failing to discuss

factors relevant to discrediting Plaintiff’s credibility. (Pl.

Support Memo at 22-24.) The Court disagrees.

“When determining a claimant’s RFC, the ALJ is required

to take the claimant’s reports of pain and other 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) (first citing 20 C.F.R. § 416.929; and

McLaughlin v. Sec’y of Health, Educ. & Welfare, 612 F.2d 701,

704-05 (2d Cir. 1980); and then citing Marcus v. Califano, 615

F.2d 23, 27 (2d Cir. 1979)). Social Security regulations outline

a two-step process for evaluating symptoms such as pain. See 20

C.F.R. § 416.929. First, the ALJ must determine whether Plaintiff

suffers from a medically determinable impairment that could

reasonably be expected to produce the symptoms alleged. Genier,

606 F.3d at 49 (citing 20 C.F.R. § 416.929(b)). To do so, the ALJ

is required to consider Plaintiff’s allegations alongside the

available medical evidence. See Cichocki v. Astrue, 534 F. App’x

71, 75-76 (2d Cir. 2013).

But while “[o]bjective medical evidence is useful,” the

ALJ “will not reject statements about the intensity and persistence

of pain and other symptoms ‘solely because the available objective

medical evidence does not substantiate [Plaintiff’s] statements.’”

Id. at 76 (quoting 20 C.F.R. § 416.929(c)(2)). Rather, at step

two, if Plaintiff’s testimony regarding his symptoms is not

substantiated by the objective medical evidence, the ALJ must

consider “other evidence” in the record, such as:

(i) Plaintiff’s daily activities;

(ii) The location, duration, frequency, and intensity of

Plaintiff’s pain or other symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of

any medication Plaintiff takes or has taken to

alleviate his pain or other symptoms;

(v) Treatment, other than medication, Plaintiff receives

or has received for relief of his pain or other

symptoms;

(vi) Any measures Plaintiff uses or has used to relieve

pain or other symptoms; and

(vii) Other factors concerning Plaintiff’s functional

limitations and restrictions due to pain or other

symptoms.

Id. (quoting 20 C.F.R. § 416.929(c)(3)). The ALJ’s decision “must

contain specific reasons for the finding on credibility, supported

by the evidence in the case record, and must be sufficiently

specific to make clear to the individual and to any subsequent

reviewers the weight the [ALJ] gave to the individual’s statements

and the reasons for that weight.” SSR 96–7p, 1996 WL 374186,

at *2. Nevertheless, “remand is not required where ‘the evidence

of record permits us to glean the rationale of an ALJ’s decision.’”

Cichocki, 534 F. App’x at 76 (quoting Mongeur v. Heckler, 722 F.2d

1033, 1040 (2d Cir. 1983)).

The Court must defer to the ALJ’s credibility findings,

which are supported by substantial evidence. Calabrese v. Astrue,

358 F. App’x 274, 277 (2d Cir. 2009). The ALJ did not

“mischaracterize the Plaintiff’s daily activities,” as Plaintiff

claims; rather, the ALJ adopted the daily activities Plaintiff

testified to at the hearing and reported to Mr. Basnayake, finding

they did not indicate that Plaintiff’s functioning was as limited

as he alleged. After all, “[i]t is the function of the

[Commissioner], not the [reviewing courts], to resolve evidentiary

conflicts and to appraise the credibility of witnesses, including

the claimant.” Id. (quoting Aponte v. Sec’y, Dep’t of Health &

Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)). Because the ALJ

thoroughly explained his credibility determination and the record

evidence, the Court will not substitute its own opinion for that

of the ALJ. Cichocki, 534 F. App’x at 76; see also Valente v.

Sec’y of Health & Hum. Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)

(“The court may not substitute its own judgment for that of the

Secretary, even if it might justifiably have reached a different

result upon a de novo review.”).

CONCLUSION

For the foregoing reasons, Plaintiff’s motion

(ECF No. 9) is DENIED as stated herein, and the Commissioner’s

cross-motion (ECF No. 11) is GRANTED. The Clerk of the Court is

directed to enter judgment accordingly and mark this case CLOSED.

SO ORDERED.

_/s/ JOANNA SEYBERT_____

Joanna Seybert, U.S.D.J.

Dated: August 10 , 2022

Central Islip, New York