Pabon v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ALEXANDER PABON,

Plaintiff, MEMORANDUM & ORDER

20-CV-3043 (EK)

-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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ERIC KOMITEE, United States District Judge:

Plaintiff Alexander Pabon challenges the Social

Security Administration’s denial of his claim for disability

insurance benefits. Before the Court are the parties’ cross-

motions for judgment on the pleadings. For the following

reasons, I grant the Commissioner’s motion and deny Pabon’s

motion.

I. Background

A. Procedural Background

In October 2014, Pabon applied for disability

benefits, alleging that he cannot work because of certain back

problems. He claims a disability onset date of January 27,

2014. Administrative Tr. (“Tr.”) 10, ECF No. 7. The agency

denied his claim. Id. at 150. An administrative law judge

(“ALJ”) held a hearing in March of 2017, id. at 25, and later

concluded that Pabon was not disabled. Id. at 125-43. The

agency’s Appeals Council granted Pabon’s request for review of

the ALJ’s decision and remanded the case for further fact-

finding regarding whether Pabon requires the use of a cane, as

well as further evaluation of Pabon’s residual functional

capacity and educational level. Id. at 146-48. A new ALJ, Mark

Solomon, held a hearing on November 20, 2018. Id. at 55. Like

the prior ALJ, Solomon also concluded that Pabon is not

disabled. Id. at 7-18. The Appeals Council denied Pabon’s

request for review, rendering ALJ Solomon’s decision final. Id.

at 1-4. Pabon timely sought review of that decision in this

Court. ECF No. 1.

B. The ALJ’s Disability Evaluation

Under the Social Security Act, “disability” is defined

as the “inability to engage in any substantial gainful activity

by reason of any medically determinable physical or mental

impairment . . . which has lasted or can be expected to last for

a continuous period of not less than 12 months.” 42 U.S.C.

§ 423(d)(1)(A). The Social Security Administration’s

regulations require ALJs to follow a five-step sequence in

evaluating disability claims. 20 C.F.R. § 404.1520(a)(4).

First, the ALJ determines whether the claimant is

engaged in substantial gainful activity. Id.

§ 404.1520(a)(4)(i), (b). If not, then at step two, the ALJ

evaluates whether the claimant has a “severe impairment” — that

is, an impairment or a combination of impairments that

“significantly limits” his “physical or mental ability to do

basic work activities.” Id. § 404.1520(a)(4)(ii), (c). If the

ALJ identifies a severe impairment, then at step three, he must

determine whether it meets or equals one of the impairments

listed in Appendix 1 of the regulations (the “Listed

Impairments”). Id. § 404.1520(a)(4)(iii), (d); see also id. pt.

404, subpt. P, app. 1. If it does, the ALJ will deem the

claimant disabled. Id. § 404.1520(a)(4)(iii).

Here, ALJ Solomon determined that Pabon had not

engaged in substantial gainful activity since the alleged onset

date. Tr. 13. He further determined that Pabon suffered from

the following “severe impairments”: lumbar degenerative disc

disease with disc bulges and herniation. Id. ALJ Solomon also

concluded, however, that none of these severe impairments rose

to the level of a Listed Impairment. Id. at 14.

When the ALJ finds that the claimant has severe

impairments that do not meet the requirements of the Listings,

he must determine the claimant’s residual functional capacity

(“RFC”), 20 C.F.R. § 404.1520(a)(4)(iv), which is the most that

the claimant can do in a work setting notwithstanding his

limitations. Id. § 404.1545(a)(1). Here, ALJ Solomon concluded

that Pabon had the RFC to perform “light work” with limitations.

Tr. 14-16. And the ALJ made a series of detailed findings

regarding those limitations.

Among other things, he found that Pabon could sit for

six hours in an eight-hour workday, but only for up to forty-

five minutes at a time; and that he could stand for three hours

in an eight-hour workday, but only for thirty minutes at a time.

Id. at 14. To the extent Pabon’s work required him to sit, he

would need to be permitted short walks (while remaining on

task); and to the extent the job required him to stand, he would

need to be permitted to sit for two to three minutes, while

(again) remaining on task. Id. Pabon could, the ALJ found,

walk for three hours in an eight-hour workday, but only for

twenty minutes at a time, and he would have to sit for two to

three minutes while remaining on task. Id. He could lift and

carry twenty pounds occasionally, and ten pounds frequently;

could not balance, crawl, or climb ropes, ladders, or scaffolds;

could occasionally stoop, crouch, and kneel; and had to avoid

working at unprotected heights with hazardous machinery, or in

extreme cold. Id.

At step four, the ALJ considers whether, in light of

the RFC determination, the claimant could perform “past relevant

work.” 20 C.F.R. § 404.1520(a)(4)(iv), (f). ALJ Solomon found

that Pabon could not perform any of his past work as a cleaner

or a security guard and supervisor. Tr. 16-17. At step five,

the ALJ evaluates whether the claimant could perform jobs

existing in significant numbers in the national economy. 20

C.F.R. §404.1520(a)(4)(v), (g). ALJ Solomon determined that

Pabon could perform such jobs, including as a routing clerk,

mail clerk, or assembler of small products. Tr. 17-18. Given

that determination, ALJ Solomon concluded that Pabon was not

disabled. Id. at 18.

II. Standard of Review

A district court has jurisdiction to review the final

judgment of the Commissioner denying an application for Social

Security disability benefits. 42 U.S.C. § 405(g). The review

is limited to two questions: whether substantial evidence

supports the Commissioner’s decision, and whether the

Commissioner applied the correct legal standards. Moran v.

Astrue, 569 F.3d 108, 112 (2d Cir. 2009).

“Substantial evidence means more than a mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Burgess v.

Astrue, 537 F.3d 117, 127 (2d Cir. 2008).1 “[I]f supported by

substantial evidence,” the Commissioner’s factual findings

“shall be conclusive.” 42 U.S.C. § 405(g).

1 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

II. Discussion

Pabon raises two interrelated arguments on appeal —

that ALJ Solomon’s RFC determination was not supported by

substantial evidence, and that it resulted from a misapplication

of the relevant legal standards. Mem. of Law in Supp. of Pl.’s

Mot. for J. on the Pleadings (“Pl. Mem.”) 7-8, ECF No. 8-1.

Specifically, he argues that with respect to the questions of

whether Pabon (1) requires the use of a cane and (2) has marked

functional limitations that preclude his ability to work, ALJ

Solomon erred by affording more weight to the opinions of Dr.

Allan Levine, M.D., an orthopedic medical expert, than those of

Dr. Suzannah Berlyne, M.D., the agency’s consultative physician.

Pl. Mem. 11-12.

While Dr. Berlyne opined that the use of a cane is

medically necessary for Pabon and that he had marked limitations

in several functional categories, Dr. Levine opined that Pabon

did not require the use of a cane and had a greater functional

capacity. As set forth below, substantial evidence supports ALJ

Solomon’s resolution of those conflicting opinions, and the

record shows that he properly applied the relevant legal

standards to reach that result. Accordingly, Pabon’s claim

fails.

“Genuine conflicts in the medical evidence are for the

Commissioner to resolve.” Veino v. Barnhart, 312 F.3d 578, 588

(2d Cir. 2002). This means that where the opinions of two

medical professionals conflict, the ALJ has the discretion to

“choose between properly submitted medical opinions.” Balsamo

v. Chater, 142 F.3d 75, 81 (2d Cir. 2018); see also Genier v.

Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (“Even where the

administrative record may also adequately support contrary

findings on particular issues, the ALJ’s factual findings must

be given conclusive effect so long as they are supported by

substantial evidence.”).

As ALJ Solomon noted, there were conflicts between the

opinions of Drs. Berlyne and Levine. Tr. 16. Dr. Berlyne, a

doctor of internal medicine who examined Pabon in connection

with his claim at the agency’s request, provided a restrictive

opinion of his physical capabilities. She found that Pabon had

marked limitations for walking long distances, climbing stairs,

standing for prolonged periods of time, lifting, carrying,

pulling, and pushing. Id. at 642. She also determined that a

cane was medically necessary. Id. Dr. Levine, a board-

certified orthopedist who testified at the hearing before the

ALJ as an impartial medical expert in orthopedics, disagreed

with Dr. Berlyne’s findings. After reviewing Pabon’s medical

record, he opined that Dr. Berlyne’s findings of marked

limitations with walking, standing, and sitting made “no sense”

and were “not compatible” with certain examination findings —

including that Pabon had normal strength and reflexes, no

sensory deficit, and no atrophy in the extremities. Id. at 86.

He also opined that the record did not establish the medical

necessity for Pabon to use a cane; to the contrary, in Dr.

Levine’s view, a cane would have worsened Pabon’s impairments by

placing undue stress on his back. Id. at 82-83. After the

hearing, ALJ Solomon followed up with Dr. Levine and sent him

certain interrogatories to complete after reviewing additional

files. Dr. Levine responded that his opinion remained

unchanged. Id. at 1091.

Faced with conflicting opinions, ALJ Solomon was

entitled to reject portions of the medical-opinion evidence that

were not supported by the record, and instead credit the

portions that were supported. Although the regulations “give

more weight to the medical opinion of a source who has examined”

a claimant than one who has not, 20 C.F.R. § 404.1527(c)(1),

“[t]here is no requirement that the agency accept the opinion of

a consultative examiner concerning a claimant’s limitations.”

Pellam v. Astrue, 508 F. App’x 87, 89-90 (2d Cir. 2013). The

ALJ “was entitled to weigh all of the evidence available to make

an RFC finding that was consistent with the record as a whole.”

Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013).

Here, Dr. Berlyne’s opinion that Pabon’s use of a cane

was medically necessary conflicted not only with Dr. Levine’s

testimony, but also with other medical evidence in the record,

including Dr. Berlyne’s own treatment notes, as the ALJ noted.

Tr. 16. Indeed, her notes stated that Pabon’s gait and stance

were “normal,” that “[t]here was not much of a difference in the

gait with and without the device,” and that Pabon “uses [the

cane] only outdoors.” Id. at 640-41. Accordingly, ALJ Solomon

did not err in concluding — contrary to Dr. Berlyne — that Pabon

does not require a cane. See Smith v. Colvin, No. 12-CV-1098,

2015 WL 3970932, at *9 (W.D.N.Y. June 30, 2015) (where plaintiff

“failed to establish that his assistive device was medically

required,” “the ALJ did not err by excluding it from his

residual functional capacity determination”).

Further, Dr. Berlyne’s opinions regarding both the

medical necessity of a cane and Pabon’s functional limitations

were inconsistent with the reports of other doctors who examined

Pabon. For example, Pabon was examined by multiple primary care

physicians at his pain management clinic. Dr. Tatyana

Braslavskaya and Dr. Syed Sabzposh both noted that Pabon walked

with the help of a cane, but neither indicated that it was

medically necessary. Tr. 974, 987. Moreover, Dr. Sohan Nagrani

reported that during a physical examination in 2018, Pabon

showed full strength in the bilateral extremities, full

sensation, full knee range of motion with some crepitus, full

range of motion in the lumbar spine despite some pain at the

endpoints, and “negative” (i.e., painless) straight-leg raises.

Id. at 979-81.

Still, Pabon argues that ALJ Solomon erred by

crediting Dr. Levine’s opinions over Dr. Berlyne’s because Dr.

Levine did not personally examine Pabon. Pl. Mem. 12. But ALJ

Solomon was entitled to accord greater weight to the opinions of

Dr. Levine, whose expertise in orthopedics was particularly

relevant for assessing Pabon’s ability to walk without a cane

and his functional limitations, after concluding that those

opinions were supported by the medical record. Indeed, even if

Dr. Berlyne were a treating (rather than merely a consultative)

physician, ALJ Solomon would not have erred by placing greater

weight on Dr. Levine’s opinions; the regulations “permit the

opinions of nonexamining sources to override treating sources’

opinions provided they are supported by evidence in the record.”

Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995); see also

Garcia v. Colvin, No. 14-CV-4798, 2015 WL 4603422, at *6

(E.D.N.Y. July 30, 2015) (“[W]here the medical adviser who is a

specialist in the area gives a medically informed, pointed, and

responsive rebuttal to the treating physicians’ conclusions,

then unless the federal court can find something obviously

lacking in that rebuttal, it is hard to disagree with the ALJ’s

determination to accept it.”). Here, the ALJ found that Dr.

Levine’s opinions were supported by the record, which, as

discussed above, shows that Pabon generally had a normal gait

and stance without a cane, normal strength except on one

occasion, performed straight-leg raises without pain, and

completed range-of-motion tests that did not suggest significant

limits. E.g., Tr. 640-643, 979-81. In sum, “substantial

evidence supported the ALJ’s decision not to adopt many of [the

consultative examiner’s] conclusions.” Pellam, 508 F. App’x at

89-90.

IV. Conclusion

For the reasons set forth above, the Court grants the

Commissioner’s motion for judgment on the pleadings and denies

Pabon’s motion. The Clerk of Court is respectfully directed to

enter judgment and close the case.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United States District Judge

Dated: September 5, 2023

Brooklyn, New York