DeRise v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CHARLES DERISE,

Plaintiff,

MEMORANDUM AND ORDER

-against-

21-CV-0565(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Charles DeRise (“Plaintiff”) appeals a final

decision of the Commissioner of the Social Security Administration

(“the Commissioner”) which found that Plaintiff was not disabled

and thus not entitled to disability insurance benefits under Title

II of the Social Security Act (the “Act”). Presently before the

Court are Plaintiff’s motion for judgment on the pleadings and

the Commissioner’s cross-motion for judgment on the pleadings.

For the reasons set forth below, Plaintiff’s motion is

respectfully DENIED, and the Commissioner’s cross-motion is

GRANTED.

Background

The parties have filed a joint statement of stipulated

facts, which the Court has reviewed and incorporates by reference.

(See ECF No. 16, Joint Stipulation of Facts “Stip.”).) The Court

briefly recounts the facts relevant to the instant motions.

Plaintiff was born on November 15, 1967, and was

employed as a maintenance worker for about 30 years at a public

school in New York City. (ECF No. 13, Administrative Transcript

(“Tr.”) at 47, 256.) Plaintiff filed an application for

disability insurance benefits (“DIB”) on January 9, 2019, alleging

a disability beginning on April 20, 2018, due to “disc

degeneration” and “nerve pain in back and legs due to disc

degeneration.” (Id. at 75, 203.) The claim was denied initially

on May 3, 2019, and upon reconsideration on July 3, 2019. (Id.

at 108, 121.) On August 12, 2019, plaintiff requested a hearing

before an administrative law judge (“ALJ”). (Id. at 133-34.) ALJ

Jason A. Miller held a hearing on Plaintiff’s claims on February

28, 2020. (Id. at 40).

On March 19, 2020, the ALJ determined that that

Plaintiff was not disabled under the Act because he retained the

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

of light work as defined in 20 CFR § 404.1567(b) and, considering

“claimant’s age, education, work experience, and [RFC], there are

jobs that exist in significant numbers in the national economy

that the claimant can perform.” (Id. at 17, 22). In making his

RFC determination, the ALJ weighed the medical opinions of Drs.

Yevsikova, Feldman, and Marasigan. (Id. at 21.) The ALJ found

the opinion of Dr. Yevsikova was “stated in non-specific terms”

and her findings “showed deficits that were not noted by any other

examiner” and as such, her conclusions were “not persuasive in

supporting a [RFC] assessment.” (Id.) The ALJ found the opinions

of both Drs. Marasigan and Feldman were “supported by

[Plaintiff’s] [medical history]” and were not inconsistent with

additional medical evidence “adduced since the date of their

opinions,” and therefore the ALJ “deemed [their opinions] to be

persuasive.” (Id.)

On April 9, 2020, Plaintiff appealed the ALJ’s decision

to the Appeals Council. (Id. at 169–72.) On December 2, 2020,

the Appeals Council denied review of the ALJ’s decision, rendering

it the final decision of the Commissioner. (Id. at 1.) On

February 3, 2021, Plaintiff filed the instant action seeking

judicial review of the Commissioner’s decision. (See ECF No. 1,

Complaint.)

Legal Standard

To receive disability benefits, a claimant must be

“disabled” within the meaning of the Act. See 42 U.S.C. §§

423(a),(d). A claimant qualifies as disabled when he is unable

to “engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months.” Id.

§ 423(d)(1)(A). The impairment must be of “such severity” that

the claimant is unable to do his previous work or engage in any

other kind of substantial gainful work. Id. § 423(d)(2)(A). “The

Commissioner must consider the following in determining a

claimant’s entitlement to benefits: ‘(1) the objective medical

facts [and clinical findings]; (2) diagnoses or medical opinions

based on such facts; (3) subjective evidence of pain or disability

. . . ; and (4) the claimant’s educational background, age, and

work experience.’” Balodis v. Leavitt, 704 F. Supp. 2d 255, 262

(E.D.N.Y. 2001) (quoting Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.

1999)) (alterations in original).

An unsuccessful claimant for disability benefits under

the Act may bring an action in federal court seeking judicial

review of the Commissioner’s denial of his or her benefits. 42

U.S.C. §§ 405(g), 1383(c)(3). “A district court may set aside

the Commissioner’s determination that a claimant is not disabled

only if the factual findings are not supported by substantial

evidence or if the decision is based on legal error.” Burgess v.

Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks

and citation omitted); see also 42 U.S.C. § 405(g). “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.” Hallaron v. Barnhart, 362 F.3d 28, 31 (2d

Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401

(1971)).

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) (citation omitted). 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).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s condition meets the Act’s

definition of disability. See 20 C.F.R. § 404.1520. This process

can be summarized as follows:

[I]f the Commissioner determines (1) that the claimant

is not working, (2) that he has a ‘severe impairment,’

(3) that the impairment is not one [listed in Appendix

1 of the regulations] that conclusively requires a

determination of disability, and (4) that the claimant

is not capable of continuing in his prior type of work,

the Commissioner must find him disabled if (5) there is

not another type of work the claimant can do.

Burgess, 537 F.3d at 120 (internal quotation marks and citation

omitted); see also 20 C.F.R. § 404.1520(a)(4).

During this five-step process, the Commissioner must

consider whether the combined effect of any such impairment would

be of sufficient severity to establish eligibility for Social

Security benefits. 20 C.F.R. § 404.1523(c). Further, if the

Commissioner does find a combination of impairments, the combined

impact of the impairments, including those that are not severe (as

defined by the regulations), will be considered in the

determination process. 20 C.F.R. § 416.945(a)(2). At steps one

through four of the sequential five-step framework, the claimant

bears the “general burden of proving . . . disability.” Burgess,

537 F.3d at 128. At step five, the burden shifts from the claimant

to the Commissioner, requiring that the Commissioner show that, in

light of the claimant’s RFC, age, education, and work experience,

the claimant is “able to engage in gainful employment within the

national economy.” Sobolewski v. Apfel, 985 F. Supp. 300, 310

(E.D.N.Y. 1997).

Lastly, federal regulations explicitly authorize a

court, upon reviewing decisions of the Commissioner, to remand for

further proceedings when appropriate. “The court shall have power

to enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g). Remand is warranted

where “there are gaps in the administrative record or the ALJ has

applied an improper legal standard.” Rosa v. Callahan, 168 F.3d

72, 82-83 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 39

(2d Cir. 1996)). Remand is particularly appropriate where further

findings or explanation will clarify the rationale for the ALJ’s

decision. Pratts, 94 F.3d at 39. If the record before the court

provides “persuasive proof of disability and a remand for further

evidentiary proceedings would serve no purpose,” however, the

court may reverse and remand solely for the calculation and payment

of benefits. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980);

see also Kane v. Astrue, 942 F. Supp. 2d 301, 314 (E.D.N.Y. 2013).

DISCUSSION

I. The ALJ’s Disability Determination

Using the five-step sequential process described above,

the ALJ determined at step one that Plaintiff had not engaged in

substantial gainful activity since April 20, 2018, the alleged

onset date. (Tr. at 15.) At step two, the ALJ determined that

Plaintiff had the following severe impairments: “[d]egenerative

disc disease and spondylosis of the lumbar spine, and clinical

obesity.” (Id. at 16.) The ALJ found that Plaintiff’s impairments

“are shown to result in vocationally significant limitations and

have lasted at a ‘severe’ level for a continuous period of more

than 12 months.” (Id.) The ALJ noted that Plaintiff “did not

list any other relevant disabilities in his original application”

but “a review of the case record does show other medical conditions

with which he has been diagnosed.” (Id.) The ALJ then reviewed

Plaintiff’s other medical conditions, including hypertension,

hyperlipidemia, pre-diabetes, gout, and a thyroid program, but

concluded that the impairments “do not appear to have significantly

limited his physical ability to do basic work activities.” (Id.)

Accordingly, the ALJ concluded that Plaintiff’s other medical

conditions were not “severe” impairments, but “considered all of

[Plaintiff’s] medically determinable impairments, including those

that are not severe, when assessing” Plaintiff’s RFC. (Id.)

The ALJ also reviewed Plaintiff’s history of mental

health treatment since June 2017, which originated prior to the

April 20, 2018, onset date of Plaintiff’s work-related physical

impairments. (Id.) Plaintiff was diagnosed with panic disorder

in March 2019 by Dr. David Schaich, a psychological consultative

examiner, but Dr. Schaich opined that the psychiatric problems

“do[] not appear to be significant enough to interfere with the

claimant’s ability to function on a daily basis.” (Id. at 16,

425.) The ALJ also noted that Drs. Haus and Butler, two State

agency psychological consultants, reviewed the file and

“determined that the claimant had functionally non-severe mental

health impairments.” (Id. at 16.) As a result, after considering

the areas of mental functioning set out in the disability

regulations and in the Listing of Impairments (20 CFR, Part 404,

Subpart P, Appendix 1), the ALJ concluded that Plaintiff’s

“medically determinable mental impairments cause no more than

‘mild’ limitation in any of the functional areas.” (Id. at 16-

17.) Because the evidence did not otherwise indicate “more than

a minimal limitation in [Plaintiff’s] ability to do basic work

activities,” the ALJ concluded that Plaintiff’s mental impairments

were non-severe. (Id. at 17.)

At step three, the ALJ found that Plaintiff did not have

an impairment or combination of impairments that met or medically

equaled the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),

404.1525, 404.1526). (Tr. at 17.) Specifically, the ALJ

determined that Plaintiff’s impairments did not meet the criteria

of Listing 1.04. (Id.)

First, the ALJ determined that Plaintiff’s spinal

impairment did not satisfy the Listing 1.04 because he still had

normal strength, sensation and reflex abilities in his lower

extremities as evidenced by plaintiff’s visit to his surgeon four

months after lumbar fusion surgery. (Id.)

Second, the ALJ, although having considered obesity

under SSR 19-2p, determined that there was no evidence that

Plaintiff’s obesity met or medically equaled a listing. (Id.)

The ALJ found that the condition did not cause additional

functional limitations and that Plaintiff had “not exhibited an

inability to ambulate ‘effectively’, as that term is defined within

Listing 1.00B2b.” (Id.)

Next, the ALJ determined that Plaintiff had the RFC to

perform a reduced range of light work, with the following

limitations:

Specifically, he can lift and/or carry 20

pounds occasionally, 10 pounds frequently. He

can stand and/or walk, with normal breaks, for

a total of six hours per eight-hour workday,

and can sit, with normal breaks, for a total

of six hours per eight-hour workday. Further,

in terms of postural limitations, he can only

occasionally climb, balance, stoop, kneel,

crouch, and crawl.

(Id.)

At step four, the ALJ concluded that Plaintiff was unable

to perform his past relevant work as a maintenance worker. (Id.

at 21).

At step five, the ALJ concluded that there were existing

jobs in sufficient numbers within the national economy that

Plaintiff could perform despite his limitations. (Id. at 22).

The ALJ asked the vocational expert to determine whether there

were jobs in the national economy for an individual with

Plaintiff’s age, education, work experience, and RFC. (Id.) The

vocational expert testified that given all these factors, such an

individual would be able to perform the requirements of

representative occupations such as “[m]ail sorter,” “[p]rice

marker,” and “[e]lectric assembler.” (Id.) Thus, the ALJ

concluded that Plaintiff could make a successful adjustment to

other work that exists in significant numbers in the national

economy, and therefore a finding of “not disabled” was appropriate

under the framework of section 204.00 in the Medical-Vocational

Guidelines. (Id. at 22–23.)

II. The ALJ Sufficiently Developed the Record

“Whether the ALJ has met his duty to develop the record

is a threshold question that must be determined before the Court

reviews whether the ALJ's final decision is supported by

substantial evidence.” Miranda v. Comm'r of Soc. Sec., No. 22-

cv-4226 (PKC), 2023 WL 6385727, at *6 (E.D.N.Y. Sept. 29, 2023)

(internal quotation marks and citation omitted). Even when not

raised by the claimant, the Court “must independently consider the

question of whether the ALJ failed to satisfy his duty to develop

the Record.” Sanchez v. Saul, No. 18-cv-12102 (PGG), 2020 WL

2951884, at *23 (S.D.N.Y. Jan. 13, 2020), report and recommendation

adopted, 2020 WL 1330215 (S.D.N.Y. Mar. 23, 2020). “[B]ecause a

hearing on disability benefits is a nonadversarial proceeding, the

ALJ generally has an affirmative obligation to develop the

administrative record.” Burgess v. Astrue, 537 F.3d 117, 128 (2d

Cir. 2008) (citation omitted). This duty exists “even where, as

here, the claimant is represented by counsel.” Merriman v. Comm'r

of Soc. Sec., No. 14-cv-3510 (PGG), 2015 WL 5472934, at *18

(S.D.N.Y. Sept. 17, 2015) (quoting Pratts v. Chater, 94 F.3d 34,

37 (2d Cir. 1996)). “Legal errors regarding the duty to develop

the record warrant remand.” Wilson v. Colvin, 107 F. Supp. 3d

387, 407 (S.D.N.Y. 2015) (collecting cases).

Plaintiff argues that “if the ALJ was unsatisfied with

Dr. Yevsikova’s medical opinion, it was his duty to seek

clarification from Dr. Yevsikova.” (ECF No. 14-1, Plaintiff’s

Memorandum of Law (“Pl. Mem.”) at 13.) Courts have concluded, in

other circumstances, that an ALJ should have sought additional

information to fill a record consisting of “sparse” and “wholly

conclusory” notes of a single treating physician. Rosa v.

Callahan, 168 F.3d 72, 79–80 (2d Cir. 1999). However, where an

ALJ has a “complete record before [him] consisting of medical

opinions, treatment notes, and test results . . . the ALJ did not

err in failing to supplement the administrative record.” Schillo

v. Kijakazi, 31 F.4th 64, 76 (2d Cir. 2022).

The ALJ in the present case had numerous medical records

from the alleged onset of Plaintiff’s disability in April 2018

through September 2019. (Tr. at 268–446.) In addition, the ALJ

reviewed, and relied on, two independent medical opinions in

crafting an RFC, in addition to Dr. Yevsikova’s opinion. (Id. at

21.) As a result, in making his determination the ALJ did not

issue a “patchwork” RFC that “lack[ed] a clear basis in the

record’s medical evidence.” Lao v. Comm'r of Soc. Sec., No. 18-

cv-07462 (FB), 2020 WL 4194210, at *3 (E.D.N.Y. July 21, 2020).

Instead, the ALJ concurred with the RFC determination of Drs.

Marasigan and Feldman, and simply assigned less weight to the

opinion of Dr. Yevsikova, which did not contain an explicit RFC

assessment. (Tr. at 17, 21.) The instant case does not present

a situation where the ALJ, in the presence of conflicting medical

evidence, simply made up an RFC out of whole cloth. Rather, the

ALJ’s RFC assessment was supported by substantial evidence, and

given the medical record was “otherwise complete, there [was] no

duty to recontact.” Jasen v. Comm'r of Soc. Sec., No. 16-cv-6153P

(MWP), 2017 WL 3722454, at *12 (W.D.N.Y. Aug. 29, 2017).

Plaintiff has pointed to no gaps in the administrative

record, but disputes the weight assigned by the ALJ to Dr.

Yevsikova’s opinion. (Pl. Mem. at 13.) “Where there are no

obvious gaps in the administrative record, and where the ALJ

already possesses a complete medical history, the ALJ is under no

obligation to seek additional information in advance of rejecting

a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir.

1999) (internal quotation marks and citation omitted).

Accordingly, the court finds that the ALJ sufficiently developed

the record in the instant case.

III. The ALJ Properly Evaluated the Medical Opinion Evidence in

Making the RFC Determination

A. New Regulations Governing the Evaluation of Medical

Opinion Evidence

In 2017, new regulations were issued that changed the

standard for evaluating medical opinion evidence regarding claims

filed on or after March 27, 2017. See 20 C.F.R. §

416.920c. Because Plaintiff filed his claim on January 9, 2019,

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). In each case, the

ALJ must explain how he or she considered the factors of

supportability and consistency, the two most important factors for

determining persuasiveness. Id. § 416.920c(a), (b)(2).

B. The ALJ’s Assessment of Medical Opinion Evidence

Plaintiff contends that the ALJ erroneously discounted

the medical opinion of Dr. Yevsikova. (Pl. Mem. at 13.) Plaintiff

also argues that the ALJ erroneously focused on the medical

opinions of Drs. Feldman and Marasigan. (Id. at 14-15.)

Supportability and consistency are the most important

factors in evaluating the persuasiveness of a medical opinion. 20

C.F.R. § 404.1520c(a). With respect to the supportability factor,

the regulations provide that “[t]he more relevant the objective

medical evidence and supporting explanations presented by a

medical source are to support his or her medical opinion(s) or

prior administrative medical finding(s), the more persuasive the

medical opinions or prior administrative medical finding(s) will

be.” Id. § 404.1520c(c)(1). As to the consistency factor, the

regulations provide that “[t]he more consistent a medical

opinion(s) or prior administrative medical finding(s) is with the

evidence from other medical sources and nonmedical sources in the

claim, the more persuasive the medical opinion(s) or prior

administrative medical finding(s) will be.” Id. §

404.1520c(c)(2). The ALJ must explain how he or she considered

the “supportability” and “consistency” factors for a medical

source’s opinion. Id. § 404.1520c(b)(2). The ALJ may, but is not

required to, explain how he or she considered the remaining

factors. Id.

Here, after reviewing the ALJ’s decision and the medical

evidence in the record, the Court concludes that the ALJ properly

weighed the medical opinions and that, as a result, his RFC

assessment was based on substantial evidence. As set forth below,

the ALJ evaluated the persuasiveness of each medical source and

explained how he determined the supportability and consistency of

each opinion, as required by 20 C.F.R. § 404.1520c. See Raymond

M. v. Comm'r of Soc. Sec., No. 19-CV-1313 (ATB), 2021 WL 706645,

at *8 (N.D.N.Y. Feb. 22, 2021) (citation omitted) (“At their most

basic, the amended regulations require that the ALJ explain h[is]

findings regarding the supportability and consistency for each of

the medical opinions, ‘pointing to specific evidence in the record

supporting those findings.’”).

i. Medical Opinion of Dr. Yevsikova

Dr. Yevsikova examined Plaintiff and opined that he had

“moderate limitation to heavy lifting, heavy carrying, pulling,

pushing,” bending, climbing stairs frequently, and walking for a

prolonged time; mild to moderate limitation to squatting,

kneeling, and standing for a prolonged time; and mild limitation

to sitting for a prolonged time and performing overhead activities.

(Tr. at 437.) Dr. Yevsikova further opined that Plaintiff should

avoid “unprotected heights” and “any activities that can put [him]

at risk for fall.” (Id.) Dr. Yevsikova’s examination notes also

included the results of musculoskeletal and other objective

testing she conducted, including range of motion for Plaintiff’s

hips, shoulders, knees, and ankles. (Id. at 436.)

Plaintiff argues that the ALJ “did not provide any

meaningful discussion regarding the supportability or consistency

(or lack thereof) of Dr. Yevsikova’s opinion,” and thus failed to

consider either factor. (Pl. Mem. at 13.) The ALJ determined,

however, both that Dr. Yevsikova’s “findings showed deficits that

were not noted by any other examiner (such as limitation of motion

in the bilateral shoulders, hips, knees, and ankles)” and that her

“medical source opinion was stated in non-specific terms.” (Tr.

at 21.) Contrary to Plaintiff’s assertions, the discussion by the

ALJ reflects an analysis of both supportability and consistency of

Dr. Yevsikova’s opinion.

First, regarding consistency, the ALJ noted that Dr.

Yevsikova’s findings of Plaintiff’s limitation of motion were not

consistent with findings by other examiners. (Id.) Earlier in

his findings, the ALJ observed that, subsequent to Plaintiff’s

lumbar interbody fusion surgery, Plaintiff’s November 2018

physical examination “was within normal limits in most respects,

with normal gait, and normal reflexes, normal strength, normal

sensation, and negative straight leg raise testing.” (Id. at 19).

The ALJ also noted that in Plaintiff’s most recent visit with his

surgeon, in January 2019, “he was doing ‘quite well’” and “his

symptoms were deemed to be stable.” (Id.) Dr. Yevsikova’s

findings regarding Plaintiff’s mobility limitations were therefore

at least in tension with other medical evidence, and the ALJ did

not err in considering that as part of his evaluation of the

consistency of Dr. Yevsikova’s opinion. The ALJ correctly raised

and discussed essential evidence that influenced his consistency

determination and was not required to “reconcile explicitly every

conflicting shred of medical testimony.” Zabala v. Astrue, 595

F.3d 402, 410 (2d Cir. 2010) (internal quotation marks and citation

omitted). Contrary to Plaintiff’s suggestion, the ALJ need not

have identified each of those inconsistent findings explicitly in

his opinion in order to properly consider the consistency of Dr.

Yevsikova’s opinion. See Smith v. Berryhill, 740 F. App'x 721,

726 (2d Cir. 2018) (“the ALJ was not required to identify evidence

explicitly rebutting the opinions of Smith’s treating physicians

before discounting or rejecting them”).

The ALJ’s findings regarding the supportability of Dr.

Yevsikova’s opinion—that it was stated in “non-specific terms,”

(Tr. at 21)—also reflect a proper consideration of the evidence.

Despite performing a battery of objective tests on Plaintiff, Dr.

Yevsikova did not further clarify what she meant when she opined

that Plaintiff had a “moderate limitation” for a variety of

activities, such as “walking for a prolonged time” or “heavy

lifting.” (Id. at 437.) As compared to the opinion of Dr.

Marasigan, which stated that Plaintiff could stand or work for

“[a]bout 6 hours in an 8-hour workday” and could lift or carry 20

pounds for “1/3 or less of an 8 hour day” or 10 pounds for “1/3 up

to 2/3 of an 8 hour day,” (Id. at 83–84), Dr. Yevsikova’s opinion

offers very little information to the ALJ regarding “what

[Plaintiff] can still do despite [his] impairment(s),” 20 C.F.R.

§ 404.1513(a)(2). Dr. Feldman provided a nearly identical

evaluation to Dr. Marasigan regarding Plaintiff’s functional

capacity to stand, work, lift, and carry during an 8-hour workday.

(Tr. at 71–72). Finally, Dr. Yevsikova, while factually describing

the results of her battery of tests, does not include any

explanation of what supporting evidence led to her conclusions

regarding Plaintiff’s specific limitations. (Id. at 433–37).

Given Dr. Yevsikova’s non-specific characterizations of what

Plaintiff could still do, and why, in addition the previously

discussed concerns regarding consistency, the ALJ did not commit

reversible error by failing to credit her medical opinion.

ii. Medical Opinion of Drs. Marasigan and Feldman

Plaintiff also argues that the ALJ erroneously relied on

the medical opinions of Drs. Marasigan and Feldman. (Pl. Mem. at

14–15.)

Plaintiff first claims that the ALJ erred in relying on

both doctors’ opinion given “neither doctor examined [Plaintiff]

and neither doctor reviewed any medical records after June 2019.”

(Id. at 14.) The ALJ, however, found the doctors’ opinions, after

they reviewed Plaintiff’s medical records, were “supported by the

claimant’s history of fusion surgery [] with occasional complaints

of pain and paresthesias” and noted that “[v]ery little additional

evidence has been adduced since the dates of their opinions.” (Tr.

at 21). The ALJ further noted “the subsequent September 2019

lumbar spine MRI does not show additional abnormalities that would

suggest greater restrictions” in reference to Plaintiff’s

September 4, 2019, MRI. (Id. at 21, 442.) Accordingly, it was

reasonable for the ALJ to conclude that both doctors’ opinions

were not stale, as they were consistent with the subsequent record

evidence. See Dronckowski v. Comm'r of Soc. Sec., No. 18-CV-

0027(WBC), 2019 WL 1428038, at *5 (W.D.N.Y. Mar. 29, 2019)

(explaining that a dated opinion is not stale unless the plaintiff

can show subsequent deterioration in his or her condition); see

also Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67, 79–80

(N.D.N.Y. 2005) (stating that an ALJ may rely on a dated

physician’s testimony provided the ALJ also accounts for

subsequent evidence).

Second, Plaintiff notes that Dr. Marasigan noted that

“the evidence as a whole, both medical and non-medical, [was] not

sufficient to support a decision on the claim” and accordingly

felt a consultative examination was required. (Tr. at 80.) Dr.

Feldman included the same annotation in his opinion, although he

did not review and revise his opinion following the consultative

examination. (Id. at 68, 72). Plaintiff claims that, subsequent

to the consultative examination, Dr. Marasigan “relied heavily on

[Dr. Yevsikova’s examination findings] to form his opinion” and

“assert[ed] that Dr. Yevsikova’s opinion [was] not more

restrictive than his, which is [] incorrect.” (Pl. Mem. at 15).

Plaintiff’s assertions reflect a misinterpretation of the record.

Dr. Marasigan noted the findings from Dr. Yevsikova’s

examination (discussing Plaintiff’s gait, stance, ability to rise

from a chair, lumbar spine flexion, straight leg raise test, and

muscle strength) and then stated “[b]ased on the objective evidence

in file [Plaintiff] is being given a[n] RFC of light and the prior

determination of 5/1/19 is affirmed.” (Tr. at 81). As a result,

while Dr. Marasigan noted Dr. Yevsikova’s findings, he ultimately

stated that his prior finding of May 1, 2019 was “affirmed.” (Id.)

Plaintiff’s claim that Dr. Marasigan “relied heavily on” Dr.

Yevsikova’s findings to “form his opinion” is inconsistent with

the fact that Dr. Marasigan made no change to his opinion and RFC

determination after reviewing Dr. Yevsikova’s findings.

Furthermore, while Plaintiff contends that Dr. Marasigan

was “incorrect” in asserting that Dr. Yevsikova’s opinion was “not

more restrictive than his,” Plaintiff fails to state exactly what

was more restrictive about Dr. Yevsikova’s opinion as compared to

Dr. Marasigan’s opinion. (Pl. Mem. at 15). Given the lack of

specificity in Dr. Yevsikova’s opinion, it is not actually clear

whether her opinion was more restrictive than Dr. Marasigan’s.

For example, Dr. Marasigan noted that Plaintiff could lift or carry

20 pounds for 1/3 or less of an 8-hour day. (Tr. at 83). In

comparison, Dr. Yevsikova opined that Plaintiff had a “moderate

limitation to heavy lifting [and] heavy carrying.” (Id. at 437).

Given the lack of specificity in Dr. Yevsikova’s opinion, the Court

cannot accept Plaintiff’s contention that Dr. Marasigan was

“incorrect” in stating there were no medical opinions about

Plaintiff’s abilities and limitations more restrictive than his

findings. Beyond this, even if a conflict did exist between the

opinions of Dr. Marasigan and Dr. Yevsikova, the Court must “defer

to the Commissioner's resolution of conflicting evidence” and

reject the ALJ's findings “only if a reasonable factfinder would

have to conclude otherwise.” Morris v. Berryhill, 721 F. App'x

25, 29 (2d Cir. 2018) (internal citations and quotations omitted);

see also Krull v. Colvin, 669 F. App'x 31, 32 (2d Cir. 2016) (the

deferential standard of review prevents a court from reweighing

evidence). Plaintiff has not sufficiently shown that the ALJ’s

resolution of any potential conflict in the evidence was

unreasonable or unsupported by the evidence in the record.

Accordingly, the ALJ did not commit reversible error by relying on

the medical opinion of Drs. Marasigan and Feldman.

For the reasons discussed above, the Court concludes

that the ALJ adequately weighed the relevant medical opinions in

assessing the severity of Plaintiff’s condition and making an RFC

determination. Accordingly, because the ALJ’s findings were

consistent with the record as a whole, and because the record was

properly developed, the Court concludes that substantial evidence

supports the ALJ’s determination.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for

judgment on the pleadings is DENIED, and Defendant’s motion for

judgment on the pleadings is GRANTED. The Clerk of Court is

respectfully directed to enter judgment in favor of the

Commissioner and close this case.

SO ORDERED

Dated: October 31, 2023

Brooklyn, New York b “7 YY, _—_—

et ter

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

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