# DeRise v. Commissioner of Social Security

> District Court, E.D. New York · October 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10310742

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10310742

## How later opinions describe it (automated extraction)

- stating that an ALJ may rely on a dated physician’s testimony provided the ALJ also accounts for subsequent evidence

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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

CHARLES DERISE,

Plaintiff,
MEMORANDUM AND ORDER
-against-
21-CV-0565(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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

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

23

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310742. Public record. Not legal advice.