# Krupp v. Commissioner of the Social Security Administration

> District Court, E.D. New York · October 4, 2022

URL: https://www.frixlaw.com/law-library/cases/10308754

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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

SANDRA KRUPP,

Plaintiff, MEMORANDUM AND ORDER

-against- 20-CV-4586(KAM)

COMMISSIONER OF THE SOCIAL SECURITY
ADMINISTRATION,

Defendant.

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

KIYO A. MATSUMOTO, United States District Judge:
Plaintiff Sandra Krupp appeals the final decision of the
Commissioner of the Social Security Administration (“Defendant” or
the “Commissioner”), finding Plaintiff not disabled within the
meaning of the Social Security Act (the “Act”) and thus not
entitled to supplemental security income under Title XVI of the
Act. Plaintiff and the Commissioner have cross moved for judgement
on the pleadings. For the reasons herein, Plaintiff’s motion is
respectfully DENIED, and the Commissioner’s cross-motion is
GRANTED.
BACKGROUND
The parties have filed a joint stipulation of relevant
facts, which the Court has reviewed and incorporates by reference.
(See generally ECF No. 19, Joint Stipulation of Facts.) On August

15, 2017, Plaintiff filed an application for supplemental security
income, alleging disability since May 6, 2016. (Administrative
Transcript (“Tr.”) at 57‒58, 180.) Plaintiff claimed that she was
disabled due to migraines, prediabetes, carpal tunnel syndrome,
sciatica, severe allergies, dyslexia, knee problems, obesity,
asthma, and vitamin deficiency. (Id. at 57-58, 243.) Plaintiff’s
application was denied initially on December 14, 2017. (Id. at
71.)
On December 21, 2017, Plaintiff filed a request for a
hearing before an administrative law judge. (Id. at 75.)
Administrative Law Judge Margaret Pecoraro (the “ALJ”) held a

hearing on September 17, 2019, and Plaintiff attended the hearing
in person, represented by her attorney, Kira Treyvus, Esq. (Id.
at 33.) Benson Kinyankui, a vocational expert, was also present
at the hearing. (Id.) In a decision dated November 20, 2019, the
ALJ determined that Plaintiff was not disabled. (Id. at 22.)
Plaintiff appealed the ALJ’s decision to the Appeals Council on
November 27, 2019. (Id. at 5, 177‒79.) On August 12, 2020, the
Appeals Council denied review of the ALJ’s decision, rendering it
the final decision of the Commissioner. (Id. at 1.) The instant
appeal followed. (See generally ECF No. 1, Complaint.)
LEGAL STANDARD

Unsuccessful claimants for supplemental security income
may bring an action in federal court seeking judicial review of
the Commissioner’s denial of benefits. 42 U.S.C. §§ 1383(c)(3),
405(g). The reviewing court does not have the authority to conduct
a de novo review and may not substitute its own judgment for that
of the ALJ, even when it might have justifiably reached a different
result. Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir.
2012). Rather, “[a] district court may set aside the
Commissioner’s determination that a claimant is not disabled only
if the factual findings are not supported by substantial evidence
or if the decision is based on legal error.” Burgess v. Astrue,
537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks and

citation omitted).
“Substantial evidence is more than a mere scintilla,”
and must be relevant evidence that a “reasonable mind might accept
as adequate to support a conclusion.” Halloran v. Barnhart, 362
F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 420 U.S.
389, 401 (1971) (internal quotation marks omitted)). See Brault
v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (“The
substantial evidence standard means once an ALJ finds facts, [the
court] can reject those facts ‘only if a reasonable factfinder
would have to conclude otherwise.’” (citations omitted)). If there
is substantial evidence in the record to support the Commissioner’s
factual findings, those findings must be upheld. 42 U.S.C. §

405(g). Inquiry into legal error requires the court to ask whether
“the claimant has had a full hearing under the [Commissioner’s]
regulations and in accordance with the beneficent purposes of the
Social Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.
2009) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)
(internal quotation marks omitted)).
To receive supplemental security income, a claimant must
be “disabled” within the meaning of the Act. See 42 U.S.C. §
1382c(a)(3)(A).1 A claimant qualifies as disabled when she is
unable to “engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than 12
months.” Id. § 1382c(a)(3)(A); Shaw v. Chater, 221 F.3d 126, 131–
32 (2d Cir. 2000). The impairment must be of “such severity” that
the claimant is unable to do his previous work or engage in any

1 The statutory definitions of disability are identical under both Title II
Disability Insurance and Title XVI Supplemental Security Income Programs.
Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a)(3). Moreover, “[c]ases
under 42 U.S.C. § 423 are cited interchangeably with cases under 42 U.S.C. §
1382c(a)(3).” Lopez v. Comm’r of Soc. Sec., No. 18-cv-7564(JGK), 2020 WL
364172, at *1 n.1 (S.D.N.Y. Jan. 22, 2020).
other kind of substantial gainful work. 42 U.S.C. §
1382c(a)(3)(B).
The regulations promulgated by the Commissioner set

forth a five-step sequential evaluation process for determining
whether a claimant meets the Act’s definition of “disabled.” See
20 C.F.R. § 416.920. The Commissioner’s process is essentially as
follows:
[I]f the Commissioner determines (1) that the claimant
is not working, (2) that he has a “severe impairment,”
(3) that the impairment is not one [listed in Appendix
1 of the regulations] that conclusively requires a
determination of disability, and (4) that the claimant
is not capable of continuing in his prior type of work,
the Commissioner must find him disabled if (5) there is
not another type of work the claimant can do.
Burgess, 537 F.3d at 120 (2d Cir. 2008) (quoting Green-Younger v.
Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)); accord 20 C.F.R. §
416.920(a)(4). During this five-step process, the Commissioner
must consider whether the combined effect of all of a claimant’s
impairments, including those that are not severe, would be of
sufficient severity to establish eligibility for Social Security
benefits. 20 C.F.R. § 416.923(c).
“The claimant has the general burden of proving . . .
his or her case at steps one through four of the sequential five-
step framework established in the SSA regulations.” Burgess, 537
F.3d at 128 (internal quotation marks and citations omitted).
“However, because a hearing on disability benefits is a
nonadversarial proceeding, the ALJ generally has an affirmative
obligation to develop the administrative record.” Id. (internal
quotation marks and citations omitted). “The burden falls upon

the Commissioner at the fifth step of the disability evaluation
process to prove that the claimant, if unable to perform her past
relevant work, is able to engage in gainful employment within the
national economy[, given her residual functional capacity, age,
education, and work experience].” Sobolewski v. Apfel, 985 F.
Supp. 300, 310 (E.D.N.Y. 1997).
“The Commissioner must consider the following in
determining a claimant’s entitlement to benefits: ‘(1) the
objective medical facts and clinical findings; (2) diagnoses or
medical opinions based on such facts; (3) subjective evidence of
pain or disability . . . ; and (4) the claimant’s educational
background, age, and work experience.’” Balodis v. Leavitt, 704
F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel, 174

F.3d 59, 62 (2d Cir. 1999)).
THE ALJ’S DISABILITY DETERMINATION
The ALJ analyzed Plaintiff’s application using the five-
step sequential process, as required by the Act’s implementing
regulations. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since August 15, 2017, the
date of her application for supplemental security income. (Tr. at
11.)
At step two, the ALJ determined that Plaintiff suffered
from bronchial asthma, diabetes mellitus, degenerative disc
disease of the lumbar spine, hypertension, obesity, and carpal

tunnel syndrome, which “significantly limited” her ability to
perform basic work activities. (Id.) The ALJ found Plaintiff’s
Bell’s palsy and depressive disorder to be non-severe, and noted
that she considered Plaintiff’s severe and non-severe impairments
in reaching her disability determination. (Id. at 11-12.)
At step three, the ALJ determined that Plaintiff’s
impairments, considered singly or in combination, did not meet or
medically equal the severity of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925,
and 416.926), specifically, Sections 1.00 (Musculoskeletal
System), 3.00 (Respiratory System), 4.00 (Cardiovascular System),
9.00 (Endocrine System), and 12.00 (Mental Impairments).2 (Tr. at

13.)
At step four, the ALJ determined that Plaintiff was
unable to perform her past relevant work as childcare worker or
medical assistant. (Id. at 20) The ALJ found that Plaintiff had
the residual function capacity (“RFC”) to perform light work as
defined in 20 C.F.R. § 416.967(b), with the following limitations:
(1) occasionally climbing stairs/ramps, stooping, bending,

2 The Court notes that Plaintiff’s attorney did not argue during the September
17, 2019 hearing before the ALJ that Plaintiff’s physical impairments met or
equaled the severity of any listed impairment. (See Tr. at 35‒36.)
crouching, and crawling; (2) never climbing ladders, ropes, or
scaffolds; (3) never kneeling; (4) avoiding dust, fumes, gases,
odors, chemicals, poor ventilation, unprotected heights, dangerous

machinery, and dangerous moving mechanical parts; and (5)
performing simple, routine tasks. (Id. at 13.)
At step five, the ALJ concluded that there were jobs
that exist in significant numbers in the national economy that
Plaintiff could perform, based on her age, education, work
experience, and RFC. (Id. at 20.) The vocational expert testified
that Plaintiff could perform the requirements of representative
occupations such as a ticket taker and a small products assembler.
(Id. at 21.) Accordingly, the ALJ found that Plaintiff was not
“disabled” and thus not entitled to supplemental security income
under the Act. (Id. at 22.)
DISCUSSION
I. The ALJ’s Assessment of Medical Opinion Evidence

The SSA adopted new regulations effective March 27,
2017, revising the standard for evaluating medical opinion
evidence and effectively abolishing the treating physician rule.
See 20 C.F.R. § 416.920c. Because Plaintiff filed her claim on
August 15, 2017, the new regulations apply.
Under the new regulations, the Commissioner no longer
“defer[s]” or gives “controlling weight” to a claimant’s treating
medical sources. Id. § 416.920c(a). Instead, when evaluating the
persuasiveness of medical opinions, the Commissioner considers the
following five factors: (1) supportability; (2) consistency; (3)
the relationship of the medical source with the claimant (taking

into account the length of the treatment relationship, the
frequency of examinations, the purpose of the treatment
relationship, the extent of the treatment relationship, and
whether the relationship is an examining relationship); (4) the
medical source’s specialization; and (5) other factors, including,
but not limited to, “evidence showing [the] medical source has
familiarity with the other evidence in the claim or an
understanding of [the SSA] disability program’s policies and
evidentiary requirements.” Id. § 416.920c(c). The ALJ must
explain how she considered the supportability and consistency
factors in evaluating the persuasiveness of a medical opinion, but
not the other factors. Id. § 416.920c(b)(2).

Plaintiff argues that the ALJ improperly weighed the
opinions of Drs. Audrey Weissman, Plaintiff’s treating physician,
and Iqbal Teli, a consultative examiner. Specifically, Plaintiff
asserts that the ALJ erred by discounting Dr. Weissman’s opinion
solely based on its inconsistencies with what Plaintiff alleges to
be “outdated information . . . derived from a [c]onsultative
[e]xamination by Dr. Teli.” (ECF No. 17-2, Plaintiff’s Memorandum
of Law in Support of Plaintiff’s Motion for Judgment on the
Pleadings (“Pl.’s Mem.”), at 10.) Plaintiff argues that Dr. Teli’s
medical opinion and findings, which were based on a consultative
examination that took place on October 23, 2017, almost two years
prior to the administrative hearing before the ALJ, is outdated,

especially given that “Plaintiff’s need to use a cane occurred
after Dr. Teli’s [c]onsultative [e]xamination.” (Id. at 11.)
A. Dr. Weissman’s Medical Opinion
Dr. Weissman began treating Plaintiff in 2015, seeing
Plaintiff every three to four months. (Tr. at 15, 334.) During
Plaintiff’s October 19, 2018 visit, Dr. Weissman diagnosed
Plaintiff with bronchial asthma, a herniated disc in the lumbar
spine, allergic rhinitis, sciatica, and vitamin D deficiency. (Id.
at 386.) Dr. Weissman noted “much improvement with” Plaintiff’s
right-sided Bell’s palsy, apart from “a little eye drooping,” as
well as Plaintiff’s complaint of her worsening right-sided
sciatica. (Id.) Plaintiff also reported that the carpal tunnel

syndrome in her left hand was painful and causing her hand to fall
asleep and become numb. (Id.)
Dr. Weissman’s medical source statement, dated August
12, 2019, stated that Plaintiff suffered from Type II diabetes
mellitus, chronic sinusitis, allergic rhinitis, extrinsic
bronchial asthma/COPD, sciatica, lumbar spinal stenosis,
migraines, headaches, right-sided Bell’s palsy, cervical
radiculopathy, and numbness of the hands. (Id. at 334.) With
regard to Plaintiff’s work-related functional limitations, Dr.
Weissman indicated that Plaintiff could walk less than one city
block without having to rest or experiencing pain. (Id. at 335.)
Dr. Weissman opined that Plaintiff could only sit for about two

hours in an eight-hour workday, for no more than 5 to 10 minutes
at a time, and could only stand for about two hours total, for no
longer than 10 to 15 minutes at a time. (Id. at 335.) Dr. Weissman
also opined that Plaintiff would need to shift positions at will
from sitting, standing, or walking, and would need to walk around
every 5 minutes. (Id.) According to Dr. Weissman, Plaintiff could
never twist, stoop, crouch, or climb stairs or ladder, and must
use a cane or other hand-held assistive device to stand/walk due
to her imbalance, pain, weakness, and dizziness. (Id. at 336.)
Additionally, Dr. Weissman assessed that Plaintiff could
rarely—1 to 5 percent of an eight-hour workday—lift and carry less
than 10 pounds, could never use her hands to grasp, turn, or twist

objects, and could only use her fingers for fine manipulations for
10 percent of an eight-hour workday. (Id. at 336‒37.) Finally,
Dr. Weissman opined that Plaintiff’s symptoms were of such severity
that she would be “off task,” or not be able to sustain attention
and concentration for even simple work tasks, for 25 percent or
more of a typical workday, Plaintiff’s conditions would produce
“good days” and “bad days,” and that Plaintiff would likely be
absent from work more than four times a month due to her
impairments or treatment. (Id. at 337.)
B. Dr. Teli’s Medical Opinion
Dr. Teli conducted a consultative examination of
Plaintiff on October 23, 2017. (Id. at 324.) In his examination

report, Dr. Teli noted that Plaintiff’s chief complaints related
to her “continuous, stabbing-like” lower back pain, of 10/10
intensity, that “radiat[ed] to [her] right lower extremity with
numbness,” “sharp” left knee pain, also of 10/10 intensity, and
asthma. (Id.) Dr. Teli also noted Plaintiff’s history of
hypertension, diabetes, and Bell’s palsy.
Dr. Teli noted, upon examination, that Plaintiff was
extremely obese, “appear[ed] to be in no acute distress,” had a
normal gait and stance, did not attempt to walk on heels or toes,
or squat, used no assistive devices, required no help changing, or
getting on or off the examining table, and was able to rise from
a chair without difficulty. (Id. at 325.) Dr. Teli assessed that

Plaintiff’s facies were normal but observed “right facial
weakness.” (Id.)
In addition, Dr. Teli made the following musculoskeletal
findings, among others: (1) for the lumbar spine, 85 degrees of
flexion, 15 degrees of extension, 10 degrees of lateral flexion on
both sides, 20 degrees of lateral rotation on the right, and 25
degrees of lateral rotation on the left; (2) negative bilateral
straight leg raise test; (3) full range of motion in the shoulders,
wrists, elbows, forearms, hips, and ankles; and (4) 130 degrees of
knee flexion on both sides. (Id.) Dr. Teli noted tenderness in
the left knee, intact hand and finger dexterity, 5/5 grip strength
in both hands, and 5/5 strength in the upper and lower extremities.
(Id. at 325‒26.) Dr. Teli also noted decreased pain sensation in

Plaintiff’s right hand and the lack of pain sensation in both legs.
(Id. at 325.)
Dr. Teli diagnosed Plaintiff with a history of lower
back pain, Bell’s palsy, hypertension, diabetes, bronchial asthma,
and left knee pain. (Id. at 326.) Dr. Teli opined that Plaintiff
had a moderate restriction for squatting, and mild restrictions
for bending, and prolonged standing and walking, and that Plaintiff
should avoid dust and respiratory irritants. (Id.)
The ALJ determined that Dr. Weissman’s opinion was
unpersuasive because it was “inconsistent and unsupported by the
overall record,” (id. at 19), and noted that Plaintiff was never

hospitalized or visited an emergency room due to her asthma, her
lungs were “clear” upon examinations, and pulmonary function
studies have, at most, shown “mild findings.” (Id.) With respect
to Plaintiff’s musculoskeletal complaints, the ALJ noted that
Plaintiff had normal strength in the upper and lower extremities,
5/5 grip strength, intact finger and hand dexterity, and normal
range of motion in the wrists and upper extremities, and did not
use an assistive device. (Id.) Further, the ALJ stated that
Plaintiff “has had only conservative treatment.” (Id.) The ALJ
found Dr. Teli’s opinion “persuasive” and consistent with his own
clinical findings. (Id.)
C. The ALJ Did Not Err by Relying on Dr. Teli’s Medical
Opinion and Findings
Plaintiff asserts that the ALJ improperly rejected Dr.
Weissman’s opinion as to Plaintiff’s functional capabilities based
solely on Dr. Teli’s outdated clinical findings. (Pl.’s Mem. at
10‒11.) “It is error for an ALJ not to account for the fact that
medical opinions are stale.” Rodriguez v. Comm’r of Soc. Sec.,
No. 20-cv-3687(VSB), 2021 WL 4200872, at *18 (S.D.N.Y. Aug. 19,

2021). “[A] medical opinion may be stale if it does not account
for the claimant’s deteriorating condition.” Id. “A medical
opinion is not necessarily stale,” however, “simply based on its
age. A more dated opinion may constitute substantial evidence if
it is consistent with the record as a whole notwithstanding its
age.” Biro v. Comm’r Of Soc. Sec., 335 F. Supp.3d 464, 470
(W.D.N.Y. 2018). See Jones v. Comm’r Of Soc. Sec., No. 10-cv-
5831(RJD), 2012 WL 3637450, at *1-*2 (E.D.N.Y. Aug. 22, 2012) (ALJ
should not have relied on medical opinion in part because it “was
1.5 years stale” as of plaintiff’s hearing date and “did not
account for her deteriorating condition”).
In the instant case, Dr. Teli conducted a consultative

examination of Plaintiff on October 23, 2017, almost two years
prior to Plaintiff’s hearing before the ALJ. Plaintiff argues
that Dr. Teli’s examination findings and medical opinion are stale
because Plaintiff’s physical conditions deteriorated since the
examination, requiring Plaintiff to use a cane to ambulate. (Pl.’s

Mem. at 15‒16.) Based on its review of the medical record, the
Court finds that the ALJ did not err by failing to account for
Plaintiff’s deteriorating condition in relying on Dr. Teli’s
medical opinion and findings.
Dr. Weissman’s medical source statement, in which she
indicated that Plaintiff must use a cane or other hand-held
assistive device to stand or walk, due to her imbalance, pain,
weakness, and dizziness, was completed on August 12, 2019, (Tr. at
336, 338), about a month before Plaintiff’s administrative
hearing. (Id. at 31.) Notably, when asked by her attorney during
the hearing whether she had any difficulty walking, Plaintiff
testified that when she had to walk about two blocks, she would

“walk, . . . stop a little bit, take a deep breath, and then . .
. walk again because then [her] asthma [would] start[ ] acting
up.” (Id. at 40.) Plaintiff, however, did not testify that she
had to use a cane or other assistive device to stand or walk, and
the ALJ stated several times in her decision that Plaintiff “does
not use an assistive device.” (Id. at 14‒15; 18‒19.) Furthermore,
other than the medical source statement, Dr. Weissman’s treatment
notes do not mention that Plaintiff required an assistive device,
or that she was ever prescribed one. Accordingly, the Court finds
that there was not evidence of a significant deterioration in
Plaintiff’s conditions that rendered Dr. Teli’s opinion stale, and
the ALJ did not err in relying on Dr. Teli’s medical opinion and

findings in assessing the persuasiveness of Dr. Weissman’s
opinion.
D. The ALJ’s Failure to Properly Evaluate the Medical
Opinions of Drs. Weissman and Teli was Harmless
Error
In addition to arguing that the ALJ erred in relying on
the “outdated” clinical findings of Dr. Teli, Plaintiff asserts
that the ALJ did not properly evaluate the medical opinions using
all the regulatory factors set forth in 20 C.F.R. § 404.1520c(c).
(Pl.’s Mem. at 10‒12 (“The ALJ’s assessment . . . failed to fully
evaluate the 6-factors . . . .”).) The Court finds that the ALJ
failed to properly analyze the supportability and consistency
factors as required by the applicable regulations.3 See Ayala,
2022 WL 3211463, at *16 (“The ALJ ‘must,’ on a source-level,
‘explain his [ ] approach with respect to the [supportability and

3 Plaintiff also contends that the ALJ did not evaluate or discuss the treating
relationship between Plaintiff and Dr. Weissman. (Pl.’s Mem. at 11‒12). Under
the new regulations, the ALJ must explain how she evaluated the two “most
important factors,” supportability and consistency, but “[i]n most instances .
. . is not required to[ ] discuss the other factors previously required to
assess medical opinion evidence (i.e., relationship with the claimant,
specialization, and other relevant factors).” Ayala v. Kijakazi, No. 20-cv-
09373(RWL), 2022 WL 3211463, at *4 (S.D.N.Y. Aug. 9, 2022) (citations omitted).
“The ALJ must consider those additional factors if there are ‘two or more
medical opinions . . . about the same issue [that] are both equally well-
supported . . . and consistent with the record . . . but are not exactly the
same,’ at which point the ALJ must ‘articulate how [she] considered the other
most persuasive factors . . . .’” Id. (citation omitted).
consistency factors] when considering a medical opinion.’”)
(alternations in original) (quoting Vellone v. Saul, No. 20-cv-
261(RA), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021), R. & R.
adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021)); Prieto v. Comm’r
of Soc. Sec., No. 20-cv-3941(RWL), 2021 WL 3475625, at *13 (Aug.

6, 2021) (“Eschewing rote analysis and conclusory explanations,
the ALJ must discuss the crucial factors in any determination . .
. with sufficient specificity to enable the reviewing court to
decide whether the determination is supported by substantial
evidence.”) (quoting Vellone, 2021 WL 319354, at *4 (internal
quotation marks omitted)).
In finding Dr. Weissman’s opinion “unpersuasive,” the
ALJ cited to the inconsistencies between Dr. Weissman’s opinion
and Dr. Teli’s clinical findings, results of pulmonary function
studies, and Plaintiff’s “conservative treatment,” (Tr. at 19),

but did not explain her consideration of the supportability factor.
“[S]upportability, under the new regulations, has to do with the
fit between the medical opinion offered by the source and the
underlying evidence and explanations presented by that source to
support her opinion.” Navedo v. Kijakazi, No. 20-cv-10013(JLC),
2022 WL 2912986, at *9 (S.D.N.Y. July 25, 2022). In other words,
the ALJ failed to explain whether Dr. Weissman’s opinion was
supported by her own clinical findings. See Latifu v. Comm’r of
Soc. Sec., No. 21-cv-884(KMK), 2022 WL 2532193, at *14 (S.D.N.Y.
May 4, 2022) (“Simply put, supportability is an inquiry confined
to the medical source’s own records that focuses on how well a
medical source supported and explained their opinion.”) (citation

omitted). Furthermore, though the ALJ reasoned that Dr. Teli’s
opinion was “persuasive” because it was supported by Dr. Teli’s
own clinical findings from his consultative examination of
Plaintiff, the ALJ did not explain whether Dr. Teli’s opinion was
consistent “with the evidence from other medical sources and
nonmedical sources” in the record. 20 C.F.R. § 404.1520c(c)(2).
Though remand is warranted where an ALJ fails to
adequately evaluate the two most important consistency and
supportability factors, see Acosta Cuevas v. Comm’r of Soc. Sec.,
No. 20-cv-0502(AJN), 2021 WL 363682, at *9 (S.D.N.Y. Jan. 29, 2021)
(“Thus, just as under the previous regulations when failure to
fully consider the Burgess factors derived from 20 C.F.R. §§

404.15227(c) and 416.929(c) would be grounds for remanding an ALJ’s
decision, an ALJ’s failure to adequately consider and apply the
new regulatory factors also require a reviewing court to remand.”),
“the Court need not remand the case if the ALJ only committed
harmless error, i.e., where the ‘application of the correct legal
principles to the record could lead only to the same conclusion.’”
Jackson v. Kijakazi, No. 20-cv-7476(JLC), 2022 WL 620046, at *13
(S.D.N.Y. Mar. 3, 2022).
The Court finds that remand is not warranted because had
the ALJ properly analyzed the supportability and consistency
factors as required by the regulations, she would have reached the

same conclusion as to the persuasiveness of the two medical
opinions. First, although the ALJ did not weigh the supportability
factor in evaluating the persuasiveness of Dr. Weissman’s opinion,
Dr. Weissman’s treatment records indicate that Plaintiff’s lumbar
spine impairment and carpal tunnel syndrome did not hinder
Plaintiff’s physical function to the extent suggested by Dr.
Weissman. Dr. Weissman opined in her August 12, 2019 medical
source statement that Plaintiff could rarely lift and carry less
than 10 pounds, could never use her hands to grasp, turn, or twist
objects, and could only use her fingers for fine manipulations for
10 percent of an eight-hour workday. (Tr. at 336‒37.) Despite
this, according to Dr. Weissman’s September 6, 2018 treatment

notes, Plaintiff was caring for a baby and requested a tetanus
shot from Dr. Weissman’s physician assistant, Ms. Neema Lama. (Id.
at 438, 450.) Furthermore, though Dr. Weissman opined in August
2019 that Plaintiff must use a cane or other hand-held assistive
device to stand/walk due to her imbalance, pain, weakness, and
dizziness, (id. at 336), Dr. Weissman’s treatment notes make no
mention of Plaintiff ever being prescribed a cane or other
assistive device or her need for one.
Similarly, though the ALJ did not weigh the consistency
factor in evaluating the persuasiveness of Dr. Teli’s opinion,
which included mild restrictions for bending and prolonged

standing and walking, and no limitations specific to Plaintiff’s
carpal tunnel syndrome, Dr. Mehri Songhorian, a neurologist, who
examined Plaintiff on October 23 and November 16, 2017, noted
normal range of motion in the extremities, (id. at 389, 395), and
upon conducting a motor functions examination of Plaintiff on
February 1, 2018, noted: “Motor function of lower extremities, hip
flexion, hip extension . . . foot extension . . . within normal
limits. Motor function of upper extremities, deltoid, biceps and
triceps is within normal limits.” (Id. at 419.) Accordingly,
because “the ‘application of the correct legal principles to the
record could lead only to the same conclusion,’” Jackson, 2022 WL
620046, at *13, remand is not warranted.
II. The ALJ’s Assessment of Plaintiff’s Carpal Tunnel Syndrome

Plaintiff also asserts that the ALJ “erred as a matter
of law” by failing to include, or provide an explanation as to why
she did not include, any manipulative limitations in the RFC for
Plaintiff’s carpal tunnel syndrome, a condition the ALJ determined
to be severe. (Pl.’s Mem. at 18‒20 (“Although the ALJ finds that
carpal tunnel is a severe condition, and although the medical
records demonstrate the Plaintiff experiences bilateral hand
numbness and uses wrist supports, the RFC completely fails to
provide for any manipulative limitations whatsoever. Moreover, if
the ALJ did not believe any manipulative restrictions were
necessary in the RFC, there is no explanation anywhere in the

decision as to why the ALJ reached such a conclusion.”).)
Relatedly, Plaintiff argues that the ALJ likewise erred by not
including any manipulative limitations in the hypothetical
presented to the vocational expert. (Id. at 20.)
Courts in this Circuit have held that remand is warranted
where the ALJ fails to account for functional limitations caused
by the plaintiff’s severe impairment in the RFC. See, e.g., Amanda
F. v. Saul, No. 19-cv-01026(MJR), 2021 WL 236015, at *6 (W.D.N.Y.
Jan. 25, 2021) (“This case must also be remanded because the ALJ
failed to incorporate any limitations from Plaintiff’s severe
impairment of bilateral carpal tunnel syndrome into the RFC. At
step two, the ALJ determined that Plaintiff’s bilateral carpal

tunnel syndrome was a severe impairment. . . . However, the ALJ’s
RFC finding contains no limitations relating to Plaintiff’s carpal
tunnel syndrome. Furthermore, the ALJ included no explanation in
the RFC assessment indicating why he omitted any functional
limitations relating to Plaintiff’s carpal tunnel syndrome. This
was error.”); Wharton v. Berryhill, No. 17-cv-1247(LTS), 2018 WL
5619961, at *17 (S.D.N.Y. Aug. 14, 2018) (remanding for further
proceedings, where “the ALJ found plaintiff’s spine and knee
conditions to be severe” but “failed to include (or discuss)
postural limitations related to these conditions when formulating
plaintiff’s RFC.”).
Here, the ALJ provided an explanation and evidentiary

support for why she determined that manipulative restrictions were
not required in Plaintiff’s RFC. Specifically, the ALJ found that
the lifting restrictions for light work, set forth in 20 C.F.R. §
404.1567(b), would accommodate Plaintiff’s symptoms caused by the
carpal tunnel syndrome, and that “there [were] no manipulative
limitations secondary to impairment.” (Tr. at 18.) The ALJ
concluded, relying on Dr. Teli’s examination findings of intact
hand and finger dexterity, 5/5 grip strength in both hands, 5/5
strength in the upper extremities, and normal range of motion in
the wrists and the upper extremities, (id. at 325‒26), as well as
“mild pathology” findings from diagnostic studies, (id. at 18,
499), that the severity of Plaintiff’s symptoms did not require

manipulative restrictions in the RFC. In the same vein, because
the ALJ determined that manipulative restrictions were not
required, based on substantial evidence in the record, the Court
declines to find that the ALJ committed a legal error by failing
to include manipulative limitations in the hypothetical to the
vocational expert.
III. The ALJ’s Assessment of Plaintiff’s Alleged Need for a
Cane
The Court next addresses Plaintiff’s argument that the
ALJ “erred as a matter of law” by failing to account for
Plaintiff’s need for a cane/assistive device in the RFC or the
hypothetical to the vocational expert. (Pl.’s Mem. at 23‒24.)
Plaintiff asserts that she began using a cane in February of 2018,
when she first reported experiencing a “feeling of imbalance”
during her visit with Dr. Songhorian. (Tr. at 419; see Pl.’s Mem.
at 16 (“[I]t appears that . . . Plaintiff was using her cane for

a prolonged period of time. On August 12, 2019, approximately a
year and a half after she first reported her imbalance, a Medical
Source Statement completed by Dr. Weissman represented that
[Plaintiff] was using a cane for balance.”).)
There is no evidence in the record, however, supporting
Plaintiff’s assertion that she used a cane between February of
2018 to August 12, 2019. Dr. Songhorian’s treatment notes from
February 1, 2018, when Plaintiff reported experiencing a “feeling
of imbalance,” neither indicate that Dr. Songhorian prescribed a
cane to Plaintiff nor that she advised Plaintiff that she needed
to use a cane or other assistive device. (Tr. at 419.) Dr.
Songhorian also made no findings as to Plaintiff’s reported
imbalance. (Id.) Furthermore, a physical examination of Plaintiff

by Dr. Songhorian that same day revealed normal range of motion in
the lower extremities, including hip flexion, hip extension, and
foot flexion, and no ataxic gait. (Id.) During her June 22, 2018
follow up visit with Dr. Weissman, Plaintiff reported that “her

sciatica pain [was] terrible,” but Dr. Weissman’s treatment notes
did not make any mention of Plaintiff’s imbalance, use of a cane
or other assistive device, or a prescription or recommendation for
one. (See generally id. at 439-440.) Likewise, Dr. Weissman’s
October 19, 2018 treatment notes stated that Plaintiff’s right-
sided sciatica was “getting worse” but made no mention of
Plaintiff’s imbalance, use of a cane or other assistive device, or
a prescription or recommendation for one. (See generally id. at
455.)
In addition, as previously discussed, Plaintiff did not
mention her imbalance, or her use of or need for a cane or other
assistive device, during the administrative hearing on September
17, 2019. (See generally id. at 33-46.) Plaintiff testified at

the hearing that her back pain affected her ability to sit, stand,
and walk. (Id. at 39.) Specifically, Plaintiff testified that
she could only sit for 20 to 25 minutes and stand for about 10
minutes at any given time before experiencing discomfort or pain.
(Id. at 39‒40.) Plaintiff also expressed that she had to take
breaks walking two blocks to her doctor’s office, but attributed
the breaks to her “asthma . . . acting up.” (Id. at 40.) But
Plaintiff made no mention of a cane or other assistive device
during the hearing.
Accordingly, the Court finds that the ALJ did not err by

not accounting for Plaintiff’s alleged use of or need for a cane
in her RFC determination or hypothetical to the vocational expert
because substantial evidence in the record supports her conclusion
that Plaintiff did not use a cane and that a cane or other assistive
device was not medically necessary.
IV. The ALJ’s Assessment of Plaintiff’s Obesity
Plaintiff also contends that the ALJ failed to properly
account for her obesity in the RFC and the hypothetical posed to
the vocational expert. Plaintiff argues that the ALJ, other than
stating conclusorily that her obesity was factored into the RFC,
did not explain how it was considered, relied on “inaccurate”
findings of Dr. Teli, the consultative examiner, erroneously
determined that Plaintiff did not use a cane,4 and failed to apply

Social Security Ruling 19-2P (“SSR 19-2p”) in evaluating the effect
of Plaintiff’s obesity, singly and in combination with the other
impairments. (Pl.’s Mem. at 22-23 (citing to Campell v. Barnhart,
178 F. Supp. 2d 123, 139 (D. Conn. 2001)).)

4 Because the Court has already determined that the ALJ did not err in relying
on the medical opinion and findings of Dr. Teli, in Part I, and that there was
substantial evidence in the record supporting the ALJ’s determination that
Plaintiff did not use a cane or other assistive device and one was not medically
needed, in Part III, the Court does not revisit the same arguments here.
SSR 19-2p, which sets forth guidance for evaluating
cases involving obese claimants, requires an ALJ to consider the
claimant’s obesity in combination with her other medically

determinable impairments. SSR 19-2p, 2019 WL 2374244, at *4 (May
20, 2019). Specifically, when evaluating whether a claimant’s
obesity impacts her ability to perform exertional or nonexertional
functions, the ALJ must consider both the documented impact of the
obesity itself as well as the combined effects of the obesity with
the other impairments, and “explain how [she] reached [her]
conclusion on whether obesity causes any limitations.” Id.
“Courts have consistently held . . . that ‘there is no
obligation on an ALJ to single out a claimant’s obesity for
discussion in all cases,’ and that ‘an ALJ’s failure to address
[it] explicitly . . . does not warrant remand.’” Sanchez v. Saul,
No. 18-cv-12102(PGG), 2020 WL 2951884, at *30 (S.D.N.Y. Jan. 13,

2020) (quoting Watson v. Astrue, No. 08-cv-1523(DAB), 2010 WL
1645060, at *4 (S.D.N.Y. Apr. 22, 2010)). See Wilson v. Colvin,
No. 14-cv-5666(DF), 2015 WL 5786451, at *30 (S.D.N.Y. Sept. 29,
2015) (“This does not mean, however, than an ALJ must always
explicitly discuss a claimant’s obesity in his or her RFC
determination[.]”). Rather, “[a]n ALJ’s determination can reflect
an appropriate consideration of obesity if it adopts the
limitations suggested by physicians who have directly considered
the effects of obesity in their opinions.” Id. at *30 (citing
Cruz v. Barnhart, No. 04-cv-9011(GWG), 2006 WL 1228581, at *9
(S.D.N.Y. May 8, 2006)). “Moreover, the evaluations of treating
physicians on which an ALJ relies need not have explicitly

addressed the claimant’s obesity, ‘provided the physician’s notes
or records demonstrate that the condition was recognized.’”
Sanchez, 2020 WL 2951884, at *30 (quoting Wilson, 2015 WL 5786451,
at *30).
Here, the ALJ found at step two that Plaintiff’s obesity
constituted a severe impairment, (Tr. at 11), and explicitly stated
that she considered Plaintiff’s “obesity in combination with her
other impairments . . . in the formulation of the [RFC].” (Id. at
15.) Additionally, in weighing the opinion evidence in the record
and determining that Plaintiff was capable of performing a limited
range of light work with occasional postural activities, the ALJ
noted that the findings of Dr. Teli on his examination of

Plaintiff, along with Plaintiff’s ability to ambulate without an
assistive device, supported such determination. (Id. at 15.)
Further, Dr. Teli, on whose medical opinion and findings the ALJ
relied on in formulating the RFC, indicated that Plaintiff’s
obesity was factored into his assessment. (Id. at 325 (“Claimant
appears to be in no acute distress. Gait normal. No attempt for
walking on heels and toes. No squatting due to knee pain. Claimant
is extremely obese. Stance is normal. Uses no assistive device.
Needs no help changing for exam. Needs no help getting on and off
exam table. Able to rise from chair without difficulty.”).) See
Drake v. Astrue, 443 F. App’x 653, 657 (2d Cir. 2011) (“[W]e agree
with the District Court that the ALJ implicitly factored

[Plaintiff’s] obesity into his RFC determination by relying on
medical reports that repeatedly noted [Plaintiff’s] obesity and
provided an overall assessment of her work-related limitations.”);
Sanchez, 2020 WL 2951884, at *30 (holding, in a case where the
ALJ’s decision does not mention Plaintiff’s obesity, that “there
is no reason for the Court to conclude that the ALJ specifically
erred by failing to give any consideration to Plaintiff’s obesity
in making his RFC determination” because “the ALJ cited and relied
on at least some . . . physicians’ evaluations, which implicitly
or explicitly recognized Plaintiff’s obesity”).
Accordingly, remand is not warranted based on the ALJ’s
alleged failure to properly consider Plaintiff’s obesity in the

RFC because it is apparent that the ALJ considered the impact of
Plaintiff’s obesity, both on its own and in combination with
Plaintiff’s other impairments, in formulating the RFC.
V. The ALJ’s Assessment of Plaintiff’s Alleged Inability to
Stoop
Additionally, Plaintiff asserts that the ALJ improperly
discounted the opinion of Dr. Weissman that Plaintiff could never
stoop. (Pl.’s Mem. at 25; Tr. at 336.) According to Plaintiff,
“[[h]ad the ALJ properly analyzed [Dr. Weissman]’s opinion and
found her opinion persuasive, the ALJ would have been legally
required to find . . . Plaintiff disabled. . . . because Dr.
Weissman found that . . . Plaintiff was unable to stoop.” (Tr. at

25.) First, the Court has already found, in Part I, that the ALJ’s
failure to consider the supportability factor in evaluating Dr.
Weissman’s opinion was harmless error and thus need not revisit
the same argument here. In addition, the Court finds that there
is substantial evidence in the record supporting the ALJ’s
determination that Dr. Weissman’s opinion that Plaintiff could
never stoop/bend was unpersuasive. Such opinion is inconsistent
with the clinical findings of Dr. Teli, specifically, that
Plaintiff’s cervical spine “show[ed] full flexion,” Plaintiff had
“[n]o scoliosis, kyphosis, or abnormality in the thoracic spine,”
and that Plaintiff had 85 degrees of flexion in the lumbar spine.
(Id. at 325.) Furthermore, Dr. Weissman’s treatment notes do not

reflect any finding by Dr. Weissman that Plaintiff could never
stoop or bend due to his lumbar spine impairment. Accordingly,
remand is not warranted based on the ALJ’s failure to properly
consider Plaintiff’s alleged inability to stoop.
VI. The ALJ Did Not Err by Failing to Consider a Closed
Period of Disability
Finally, Plaintiff contends that the ALJ erred in
determining that Plaintiff’s Bell’s palsy was a non-severe
impairment. Relatedly, Plaintiff argues that the ALJ erred failing
to consider, as an alternative to finding Plaintiff disabled,
whether Plaintiff “was eligible for a ‘closed period’ of
disability” during the 1-year period between September 2017 when
Plaintiff was diagnosed with Bell’s palsy, (id. at 485‒86), and

October 19, 2018 when Dr. Weissman noted “much improvement” with
Plaintiff’s Bell’s palsy. (Id. at 455; Pl’s Mem. at 25‒30.)
“A closed period of disability refers to when a claimant
is found to be disabled for a finite period of time which started
and stopped prior to the date of the administrative decision
granting disability status.” Pettaway v. Colvin, No. 12-cv-
2914(NGG), 2014 WL 2526617, at *13 (E.D.N.Y. June 4, 2014). “When
deciding a disability claim, ‘[i]f a claimant is disabled at any
point in time, the ALJ should consider not only whether Plaintiff
was disabled at the time of the hearing, but also whether Plaintiff
was entitled to disability benefits for any closed, continuous
period . . . following the date of [her] claim.’” Love v. Kijakazi,

No. 20-cv-1250(EK), 2021 WL 5866490, at *5 (E.D.N.Y. Dec. 10,
2021).
First, Plaintiff asserts that the ALJ’s determination
that Plaintiff’s Bell’s palsy was non-severe based on the results
of Plaintiff’s October 11, 2017 brain MRI, which was normal other
than left maxillary sinus disease, (Tr. at 504), was “improper.”
(Pl.’s Mem. at 27.) Plaintiff relies on a December 12, 2017
psychiatric consultative examination report, which indicated that
Plaintiff had a “[m]ild articulation problem” and “half her face
looked numb,” (Tr. at 62), to argue that “the MRI results did not
tell the whole story.” (Pl.’s Mem. at 27‒28.) Plaintiff asserts

that she suffered from decreased vision as a result of the Bell’s
palsy, and speculates, without citing to any evidence in the
record, that the symptoms caused by the Bell’s palsy would have
affected the “available jobs in the national economy” that
Plaintiff could perform, and caused “problems in focusing, or in
concentration, persistence, and pace, or absenteeism,” as well as
“problems interacting with the public or with supervisors and
employees.” (Id. (“It is hard to imagine a scenario where Ms.
Krupp could go out and work with numbness in her face. . . . And,
most certainly, the fact that Ms. Krupp experienced a sudden change
in her life that caused temporary blindness followed by a year of
a numb face with drooping facial features could cause a

psychological effect. This effect could reasonably cause the
Plaintiff mental difficulties, such as difficulties concentrating,
being on-task, and could result in absenteeism. Not to mention
being self-conscious as a result of these symptoms could result in
the Plaintiff not wanting to have contact with the public,
supervisors, or employees, which could impact the number of
available jobs in the national economy.”).)
Critically, Plaintiff does not cite to the
administrative record in support of her argument that the mild
articulation problem caused by her Bell’s palsy was of such

severity as to impact the number of jobs in the national economy
that Plaintiff could perform, or that the Bell’s palsy affected
her ability to interact with others, concentrate, be on-task, and
caused absenteeism. (Id. at 28.) Accordingly, the Court declines
to rely on Plaintiff’s speculations in determining whether the ALJ
erred in finding that Plaintiff’s Bell’s palsy was not a severe
impairment. Furthermore, there is substantial evidence in the
record supporting the ALJ’s determination that Plaintiff’s Bell’s
palsy had no more than a minimal effect on Plaintiff’s ability to
perform basic work activities.
First, Plaintiff testified at the hearing before the ALJ
that she “lost vision in [her] right eye” due to the Bell’s palsy;

however, an eye exam conducted on October 23, 2017, about a month
after Plaintiff was diagnosed with Bell’s palsy, revealed that
Plaintiff had 20/25 vision in her right eye, 20/20 vision in her
left eye, and 20/20 vision in both eyes without glasses. (Tr. at
41-42, 324.) Moreover, Plaintiff did not report any issues with
her vision to Dr. Songhorian during her visits on October 12,
November 16, and November 27 in 2017, and on February 1, 2018,
(see generally id. at 389, 392, 395, 419), and Dr. Weissman’s
treatment notes postdating Plaintiff’s Bell’s palsy diagnosis in
September 2017 likewise did not mention any issues related to
Plaintiff’s vision. (See generally id. at 386, 455 (treatment
report dated October 19, 2018); 393 (treatment report dated October

10, 2017); 414‒16 (treatment report dated May 14, 2018); 417‒18
(treatment report dated February 1, 2018); 432‒34 (treatment
report dated October 25, 2018); 436‒38 (treatment report dated
September 6, 2018); 439-41 (treatment report dated June 22, 2018);
466 (treatment report dated October 3, 2017).)
In addition, though Plaintiff reported, on October 12,
2017, experiencing hyperacusis, decreased taste, and pain in the
back of her ear due to the Bell’s palsy, (id. at 395), by November
16, 2017, her taste had returned, hyperacusis was better, and
Plaintiff “had no numbness or tingling sensation in her face or
tongue.” (Id. at 392.) And though Dr. Georgiou, the consultative
psychologist who examined Plaintiff on December 1, 2017, noted her

“[m]ild articulation problem” and apparent facial numbness on one
side of her face, (id. at 330), Dr. Teli noted, upon examining
Plaintiff on October 23, 2017 that her “[f]acies [were] normal,”
notwithstanding his observation that Plaintiff had “right facial
weakness.” (Id. at 325.) Furthermore, Dr. Songhorian noted that
Plaintiff’s speech was fluent and comprehension intact on October
12, November 16, and November 27, 2017, and February 1, 2018. (Id.
at 392, 389, 419.) Finally, Plaintiff made no mention of the
effect the Bell’s palsy had on her ability to articulate at the
administrative hearing before the ALJ. (Tr. at 35, 41-42.)
Accordingly, the Court finds that there is substantial evidence in
the record to support the ALJ’s determination that the mild

articulation problem suffered by Plaintiff as a result of the
Bell’s palsy did not severely limit Plaintiff’s ability to engage
in basic work activities.
The Court likewise rejects Plaintiff’s argument, alleged
for the first time in her reply, that even if Plaintiff’s Bell’s
palsy were not a severe impairment, the ALJ erred by “not properly
accounting for [it] in the RFC determination, or by failing to
explain why no such limitations were included.” (ECF No. 21,
Plaintiff’s Reply Memorandum in Support of Plaintiff’s Motion for
Judgment on the Pleadings, at 6.) The ALJ recounted the history
of Plaintiff’s Bell’s palsy in her RFC analysis, including the
condition’s onset in September 2017, Plaintiff’s visits to the

neurologist, Dr. Songhorian, between October 2017 and February
2018, as well Dr. Weissman’s note from Plaintiff’s October 19,
2018 visit that there “had been much improvement” with the Bell’s
palsy. Furthermore, there is substantial evidence in the record,
as discussed above, supporting the ALJ’s determination that no
additional limitations specific to Plaintiff’s Bell’s palsy were
required in the RFC.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for
judgment on the pleadings is respectfully DENIED and the

Commissioner’s cross-motion for judgement on the pleadings is
GRANTED. The Clerk of Court is directed to enter judgment in favor
of the Commissioner, and to close the case.
SO ORDERED.
DATED: October 4, 2022
Brooklyn, New York
__________/s/_______________
HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308754. Public record. Not legal advice.