Michalakis v. O'Malley

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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NICHOLAS MICHALAKIS,

Plaintiff,

MEMORANDUM AND ORDER

-against- 21-CV-2697 (KAM)

MARTIN O’MALLEY, Commissioner of Social

Security,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Nicholas Michalakis (“Plaintiff”) appeals the final

decision of the Commissioner of Social Security (the

“Commissioner”)1, finding him not disabled from April 1, 2011,

through December 31, 2016, and thus not entitled to disability

insurance benefits under Title II of the Social Security Act (the

“Act”). Plaintiff and the Commissioner have cross-moved for

judgment on the pleadings. For the reasons herein, Plaintiff’s

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

GRANTED.

1 The Court has updated the caption to reflect the new Commissioner of Social

Security, who took office after Plaintiff commenced this action. See Fed. R.

Civ. P. 25(d); Pryor v. Berryhill, 286 F. Supp. 3d 471 n.1 (E.D.N.Y. 2017).

BACKGROUND

I. Procedural History

On February 17, 2012, Plaintiff filed an initial claim for

disability insurance benefits (“DIB”) alleging a variety of

disabling injuries and conditions, including: blockage of cardiac

arteries requiring stents, bulging discs in his lower back, and

associated pain and symptoms. (ECF No. 7, Administrative

Transcript (“Tr.”), at 65, 152-60.) Plaintiff’s claim was denied

by the Social Security Administration (“SSA”) on April 13, 2012,

and he thereafter requested a hearing before an Administrative Law

Judge. (Id. at 69-79.)

On January 28, 2013, plaintiff appeared before ALJ April M.

Wexler (the “ALJ”), (Id. at 41), who denied Plaintiff’s claim in

a written decision dated February 7, 2013. (Id. at 24-40.)

Plaintiff requested Appeals Council review of the decision on March

5, 2013. (Id. at 5-23.) On April 14, 2014, the Appeals Council

denied Plaintiff’s request, and Plaintiff subsequently appealed

the final decision to this Court on June 16, 2014. (Id. at 1-4.)

This Court remanded Plaintiff’s case for further proceedings,

finding that the ALJ “failed to apply the proper standard for

evaluating the medical opinion of plaintiff’s treating orthopedic

physician” and failed to properly evaluate the credibility of

Plaintiff’s statements about the severity and limiting nature of

his symptoms. Michalakis v. Colvin, No. 14-CV-3753 (KAM), ECF No.

22, at 44, 59 (E.D.N.Y. Dec. 28, 2016).

After the Appeals Council remanded his case to the ALJ for

further proceedings, Plaintiff appeared before the ALJ for a new

hearing on November 20, 2017. (Tr. at 644-46, 538.) Plaintiff

was represented by counsel and Vocational Expert Victor Alberigi

(the “VE”) testified. (Id. at 538.) In a written decision dated

December 22, 2017, the ALJ found Plaintiff not disabled. (Id. at

426-42.) Plaintiff requested review by the Appeals Council on

January 5, 2018, and the Appeals Council declined to review the

decision by action dated March 10, 2021, making the ALJ’s decision

the final decision of the Commissioner. (Id. at 419-24, 704.)

This action followed. (See generally ECF No. 1, Complaint.)

II. Hearing before the ALJ

Plaintiff was represented by attorney Nicholas Cifuni at his

most recent November 20, 2017, hearing before the ALJ. (Tr. at

538.)

The Court will briefly examine the events leading up to

Plaintiff’s initial application for disability. Plaintiff was

born on April 5, 1968, and was 42 years old at the time of the

alleged disability onset, April 1, 2011. (Id. at 65, 152-60).

Plaintiff worked as a police officer in the New York City Police

Department (“NYPD”) from October 1990 through April 2011. (Id. at

154.) On April 29, 2011, Plaintiff submitted an application for

disability retirement from the NYPD based on symptoms of heart

disease which required cardiac catheterization. (Id. at 304-06.)

Plaintiff’s application for Accident Disability Retirement was

approved on August 30, 2011, with a final diagnosis of “Coronary

Artery Disease Status Post Two-Stent Placement.” (Id.) At the

time of his retirement, Plaintiff held the position of police

lieutenant. (Id.)

At the hearing before the ALJ in 2020, Plaintiff described

his work prior to his medical retirement. (Id. at 544.) Plaintiff

described his work as a police lieutenant as “[m]ore desk

supervisory” as he worked in an office in the Bronx Criminal Court

supervising “the arraignment section, the courtrooms, the lodgings

in central booking.” (Id.) Plaintiff described his previous work

as a police sergeant as being a combination of administrative work

and patrol work. (Id. at 545.) The ALJ asked Plaintiff whether

the heart condition that resulted in his medical retirement

continued to be an issue that “stops [him] from being able to work”

and Plaintiff responded that it did not. (Id. at 546.) As a

result, the ALJ moved to examine Plaintiff’s orthopedic

complaints. (Id.)

The ALJ questioned Plaintiff regarding his orthopedic

treatment between August 2014 though early 2017, given a lack of

evidence from the treating physician during that time period. (Id.

at 547.) Plaintiff stated that he had not received treatment, but

had seen a chiropractor and worked on stretching with his sister,

a yoga instructor. (Id.) Plaintiff testified that he took no

medication for his claimed orthopedic impairments during that

time. (Id. at 548.) Plaintiff also testified regarding

experiences of dizziness between his alleged onset date and prior

to December 31, 2016, his date last insured. (Id. at 550.)

Plaintiff stated that he had fallen twice because of dizziness –

once in 2013, and once in June of 2017. (Id. at 552.)

Plaintiff also testified as to his activities of daily living

between April 2011 and December 31, 2016. (Id. at 554.) Plaintiff

testified that he drove to physical therapy and doctor’s

appointments, and that he would occasionally drive to take care of

errands such as visiting the post office. (Id. at 556-57.)

Plaintiff also stated that he traveled to see family, and took two

trips to Florida. (Id. at 557.) Plaintiff explained that he

traveled in a car with his wife who drove to Florida for one trip,

and flew for the other, in part to look for houses to buy. (Id.)

Plaintiff also stated that he took the train to attend a New York

Rangers game at Madison Square Garden during the relevant period.

(Id. at 558.) Plaintiff stated that he did not do any chores

around the house or do any cooking, but he could make himself a

“sandwich now and then.” (Id. at 559.) Plaintiff also testified

that “at times” his wife had to assist him with dressing and

cutting his food. (Id. at 560.)

Plaintiff’s attorney examined Plaintiff during the hearing

and primarily asked about his treatment with Dr. Goldstein, his

orthopedic provider. (Id. at 561-66.) Plaintiff testified that

he stopped seeing his orthopedic provider from 2014 to 2017 because

“[his] condition was the same . . . it hadn’t improved, but it

hadn’t gotten worse.” (Id. at 565.)

The ALJ called the VE as a witness at the hearing, as well.

(Id. at 566.) The ALJ asked the VE to consider a hypothetical

individual with Plaintiff’s age, education, and work experience

who could “sit for up to six hours, stand and walk for three hours

each in an eight-hour day; can lift and carry 20 pounds

occasionally and 10 pounds frequently; can never be exposed to

unprotected heights or moving mechanical parts or vibrations;

occasional exposure to dust, odors, fumes, pulmonary irritants,

humidity, wetness, extreme heat and cold; occasional operation of

foot controls; occasionally climbing ramps and stairs, ladders and

scaffolds; occasionally kneeling and crouching and never crawling”

and whether such an individual could perform Plaintiff’s past work.

(Id. at 570.) The VE concluded that such a person could perform

Plaintiff’s prior work as a police lieutenant and sergeant, but

not as a patrol officer. (Id. at 566-70.) The VE also testified

that such a person could perform the jobs of police aide, clerical

assistant, and customer service representative. (Id. at 570.)

The ALJ subsequently added additional constraints to the

hypothetical individual, including an inability to stand and walk

or sit for more than two hours, and the VE clarified that such an

individual could not perform any jobs in the national economy.

(Id. at 572.) Upon questioning from Plaintiff’s counsel, the VE

further clarified that a limitation to overhead reaching would not

impact an individual’s ability to perform the jobs described. (Id.

at 573.)

III. The ALJ’s Decision

Pursuant to the SSA regulations, an ALJ follows a five-step

process for evaluating disability claims, which has been

summarized as follows:

First, the Commissioner considers whether the claimant

is currently engaged in substantial gainful activity. If

[s]he is not, the Commissioner next considers whether

the claimant has a “severe impairment” which

significantly limits h[er] physical or mental ability to

do basic work activities. If the claimant suffers such

an impairment, the third inquiry is whether, based

solely on medical evidence, the claimant has an

impairment which is listed in Appendix 1 of the

regulations. If the claimant has such an impairment, the

Commissioner will consider h[er] [per se] disabled....

Assuming the claimant does not have a listed impairment,

the fourth inquiry is whether, despite the claimant's

severe impairment, [s]he has the residual functional

capacity to perform h[er] past work. Finally, if the

claimant is unable to perform h[er] past work, the

Commissioner then determines whether there is other work

which the claimant could perform.

Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing

DeChirico v. Callahan, 134 F.3d 1177, 1179–80 (2d Cir. 1998)).

“The applicant bears the burden of proof in the first four steps

of the sequential inquiry; the Commissioner bears the burden in

the last.” Id. To determine the claimant’s residual functional

capacity (“RFC”), the ALJ must consider the claimant’s

“impairment(s), and any related symptoms, [that] may cause

physical and mental limitations that affect what [the claimant]

can do in a work setting.” 20 C.F.R. § 404.1545(a)(1).

In the instant case, the ALJ denied Plaintiff’s application

for disability benefits on December 22, 2017. (Tr. at 426.)

Following the five-step test set forth in SSA regulations, the ALJ

found at step one that Plaintiff had not engaged in substantial

gainful activity during the period from his alleged onset date of

April 1, 2011, through his date last insured of December 31, 2016.

(Id. at 432.) At step two, the ALJ found that Plaintiff had the

following “severe impairments”: a herniated disc at L5-Sl,

internal derangement of the cervical spine, coronary artery

disease status post angioplasty and stenting, diabetes mellitus,

and vertigo. (Id.)

At step three, the ALJ concluded that none of Plaintiff’s

severe impairments singly or in combination met or medically

equaled an impairment listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (Id.) The ALJ considered Listing 1.04 (regarding

Plaintiff’s spine impairments) but concluded that Plaintiff did

not meet or equal the stated criteria. (Id. at 433.)

Specifically, the ALJ found that Plaintiff’s asserted impairments

were not accompanied by evidence of nerve root compression, spinal

arachnoiditis, or lumbar spinal stenosis resulting in

pseudoclaudication, for Listing 1.04. (Id.)

The ALJ next assessed Plaintiff’s RFC. (Id.) The ALJ found

that Plaintiff could perform light work as defined in 20 C.F.R. §

404.1567(b) except Plaintiff could, in an 8-hour day, (1) sit up

to 6 hours, (2) stand and walk for three hours, (3) lift and carry

up to 10 pounds frequently and 20 pounds occasionally, (4) never

crawl, and only occasionally operate foot controls, climb stairs,

ramps, ladders, or scaffolds, and kneel and crouch, (5) could never

be exposed to unprotected heights, moving mechanical parts or

vibrations, and (6) could only tolerate occasional exposure to

humidity, wetness, temperature extremes, and dust, odors, fumes,

and pulmonary irritants. (Id.)

Regarding Plaintiff’s physical impairments, the ALJ credited

Plaintiff’s claims of dizziness, medication-caused fatigue, and

back pain, but found that the available evidence did not support

his subjective claims as to the intensity, persistence, and

limiting effects of his symptoms. (Id. at 433-34.) For instance,

the ALJ noted that records from Plaintiff’s treatment showed

“intact sensation in all distributions . . . radicular symptoms

were not present . . . no nerve root impingement,” and “no evidence

of peripheral radicular or entrapment neuropathies.” (Id. at 434.)

The ALJ also noted that there was “no documentary evidence that

[Plaintiff] sought or received any further treatment for his spine

impairments [between August 2014 and] March 2017.” (Id.)

Ultimately, the ALJ concluded that “the evidence establishes that

[Plaintiff] retains the capacity to function adequately to perform

many basic activities associated with work” and that the RFC

“accounts for [Plaintiff’s] testimony supported by medical

evidence of record.” (Id. at 440.)

In reaching her RFC conclusion as to Plaintiff’s physical

abilities, the ALJ evaluated the opinions of the various treating

physicians and considered opinion evidence as to Plaintiff’s

functional capacities. (Id. at 434-440.)

First, the ALJ accorded “no significant weight” to the

opinions of Drs. Mitchell Goldstein and Michael Hearns. (Id. at

435.) Dr. Goldstein provided a check-box medical opinion on

December 14, 2012, opining that Plaintiff is “Totally Disabled and

unable to perform all aspects of work,” citing a back x-ray and

MRI along with physical examination findings. (Id. at 310-11.)

Dr. Goldstein subsequently drafted a letter to Plaintiff’s

attorneys offering a “narrative report” opining that Plaintiff

“remains permanently and totally disabled” dated January 7, 2013.

(Id. at 350-52.) Dr. Hearns opined in a January 3, 2013, letter

to Plaintiff’s attorneys that “[Plaintiff] is unfit to perform any

competitive job within the US job market.” (Id. at 347-48.) The

ALJ found that the two physicians’ opinions were “not supported by

the record” including the “very conservative treatment” Plaintiff

received as well as the fact that “examination findings were mild,

including intact strength in all extremities, normal reflexes, and

normal sensation.” (Id. at 435.) The ALJ also noted the lack of

any orthopedic treatment whatsoever between August 2014 and March

2017. (Id.) A subsequent opinion by Dr. Goldstein with similar

findings dated August 2017 was also given “less weight” by the ALJ

given the gap in treatment and the fact that it appeared “to have

been based primarily on the medical record after the expiration of

[Plaintiff’s] disability insured status [on December 31, 2016.]”

(Id. at 437.)

Second, the ALJ gave “good weight” to the August 2017 opinions

of Drs. Peter Schosheim, an orthopedic surgeon, and Dr. Gerald

Galst, a cardiovascular specialist, whose opinions were based on

a review of the record, and not an individual examination. (Id.

at 436-40.) The ALJ noted that each physician had the chance to

review “the available medical record” and was a specialist in their

respective field. (Id.)

Third, the ALJ gave “some weight” to the opinion of

consultative examiner Dr. Linell Skeene. (Id. at 440.) Dr. Skeene

opined that Plaintiff had a “moderate limitation for prolonged

standing, walking, and heavy lifting due to limited [range of

motion] of the lumbar spine.” (Id. at 290.) The ALJ noted that

Dr. Skeene examined Plaintiff only once, and the opinion was

somewhat vague, as reasons for assigning the opinion less weight.

(Id. at 440.)

At step four, the ALJ found that Plaintiff was “capable of

performing past relevant work as a police sergeant and police

lieutenant” as the work “did not require the performance of work-

related activities precluded by [Plaintiff’s RFC].” (Id. at 441.)

Although the finding that Plaintiff had the RFC to perform his

past relevant work was sufficient to end the inquiry, the ALJ

nonetheless noted that the VE found that “an individual with the

same medical vocational profile as [Plaintiff]” could perform work

as a police aide, clerical assistant, or customer service

representative. (Id.) The ALJ concluded that Plaintiff was not

disabled within the meaning of the Act. (Id.)

STANDARD OF REVIEW

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). In reviewing a final decision of the Commissioner, the

reviewing court's role is “limited to determining whether the SSA's

conclusions were supported by substantial evidence in the record

and were based on a correct legal standard.” Talavera v. Astrue,

697 F.3d 145, 151 (2d Cir. 2012) (internal quotation marks and

citation omitted). “Substantial evidence is more than a mere

scintilla. It means such relevant evidence as a reasonable mind

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

Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam) (internal

quotation marks omitted) (quoting Richardson v. Perales, 402 U.S.

389, 401 (1971)). In determining whether the Commissioner's

findings were based on substantial evidence, “the reviewing court

is required to examine the entire record, including contradictory

evidence and evidence from which conflicting inferences can be

drawn.” Id. However, “it is up to the agency, and not [the]

court, to weigh the conflicting evidence in the record.” Clark v.

Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). If there

is substantial evidence in the record to support the Commissioner's

findings as to any fact, those findings are conclusive and must be

upheld. 42 U.S.C. § 405(g); see also Cichocki v. Astrue, 729 F.3d

172, 175–76 (2d Cir. 2013) (per curiam).

Federal law explicitly authorizes a court, when reviewing

decisions of the SSA, to order 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) (internal

quotation marks omitted). 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, however, the

record before the court provides “persuasive proof of disability

and a remand for further evidentiary proceedings would serve no

purpose,” the court may reverse and remand solely for the

calculation and payment of benefits. See, e.g., Parker v. Harris,

626 F.2d 225, 235 (2d Cir. 1980).

DISCUSSION

On appeal, Plaintiff asserts that the ALJ: (1) improperly

rejected Dr. Goldstein’s medical opinion; and (2) improperly

determined that Plaintiff could return to his past work as a police

sergeant or lieutenant. (ECF No. 14, Plaintiff’s Memorandum of

Law in Support (“Pl. Mem.”), at 15-24.) The Court first addresses

whether the ALJ followed correct legal standards with respect to

development of the record, before turning to the ALJ’s evaluation

of Dr. Goldstein’s medical opinion and reliance on the VE’s

testimony regarding Plaintiff’s ability to return to his previous

work.

I. Development of the Record

“Whether the ALJ has met [her] 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 [her] duty to develop

the Record.” Sanchez v. Saul, No. 18-CV-12102 (PGG) (DF), 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) (citation

omitted). “[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).

“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).

Although Plaintiff has not expressly alleged that the ALJ

failed to fully develop the record, this Court is nonetheless

obligated to independently assess whether the ALJ properly

discharged her duty. The ALJ provided Plaintiff with the

opportunity to answer questions regarding his work background and

the severity of his alleged impairments at an in-person hearing on

November 20, 2017. (Tr. at 538-75.) The ALJ considered numerous

physical evaluations, medical records, and other evidence in

making her conclusions. (Id. at 434-41.) Further, the ALJ

reviewed and relied upon the opinions of several medical

professional in deciding Plaintiff’s RFC. (Id.) Where, as here,

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

opinions, treatment notes, and test results . . . the ALJ d[oes]

not err in failing to supplement the administrative record.”

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

Court finds that the ALJ sufficiently developed the record in the

instant case.

II. The ALJ’s Weighing of Medical Opinion Evidence

a. The Treating Physician Rule

Plaintiff contends that the ALJ failed to give “good reasons”

for rejecting Dr. Goldstein’s opinion, which he argues should have

been given controlling weight. (Pl. Mem. at 14-21.) Under the

treating physician rule, the opinion of a claimant’s treating

physician as to “the nature and severity of the [claimant’s]

impairment is given ‘controlling weight’ if the opinion is ‘well-

supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other

substantial evidence in [the] case record.’” Greek v. Colvin, 802

F.3d 370, 375 (2d Cir. 2015) (citing Burgess, 537 F.3d at 128; 20

C.F.R. § 404.1527(c)(2)).2 An ALJ who does not accord controlling

weight to a treating physician’s medical opinion must explicitly

consider the following non-exclusive Burgess factors in

determining how much weight to give to the opinion: (1) the

frequency, length, nature, and extent of treatment; (2) the amount

of medical evidence supporting the opinion; (3) the consistency of

the opinion with the remaining medical evidence; and (4) whether

2 In 2017, new regulations were issued that changed the standard for evaluating

medical opinion evidence for claims filed on or after March 27, 2017. See 20

C.F.R. § 404.1520c. However, because Plaintiff filed his claim on February 17,

2012, the old regulations, including the treating physician rule, still apply.

the physician is a specialist. Estrella v. Berryhill, 925 F.3d

90, 95‒96 (2d Cir. 2019) (citation omitted); see also 20 C.F.R. §

404.1527(c)(2). “The ALJ must then ‘comprehensively set forth

[her] reasons for the weight assigned to a treating physician’s

opinion.’” Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. 2013)

(summary order) (citing Burgess, 537 F.3d at 129). Though the

decision regarding a disability determination is reserved to the

Commissioner, “when an ALJ discounts a treating physician’s

opinion that a claimant is disabled, the ALJ is obligated to give

good reasons for doing so.” Quiles v. Saul, 19-CV-11181 (KNF),

2021 WL 848197, at *9 (S.D.N.Y. Mar. 5, 2021) (citing Snell v.

Apfel, 177 F.3d 128, 134 (2d Cir. 1999)). Further, “[t]he failure

to provide ‘good reasons for not crediting the opinion of a

claimant's treating physician is a ground for remand.’” Greek,

802 F.3d at 375 (quoting Burgess, 537 F.3d at 129-30).

a. Dr. Goldstein’s Opinions

In the instant case, the ALJ concluded that the 2012 and 2013

opinions of Dr. Goldstein should not be “given significant or

controlling weight.” (Tr. at 435.) The ALJ based this decision

primarily on the second and third Burgess factors, noting that Dr.

Goldstein’s opinions “were not supported by the record, which shows

that [Plaintiff] received very conservative treatment, including

the prescription of Mobic (a nonsteroidal anti-inflammatory drug),

but no narcotic pain medication, no surgery, and no injections”

and that furthermore “examination findings were mild, including

intact strength in all extremities, normal reflexes, and normal

sensation.” (Id.) The ALJ further explained that “[Plaintiff]

received no treatment between August 2014 and March 2017 for any

orthopedic impairment, except for yoga and chiropractic care.”

(Id.) Earlier in her order, the ALJ noted the length and nature

of Dr. Goldstein’s treating relationship with Plaintiff,

explaining that Plaintiff first sought treatment in December 2011,

received follow-up examinations, and that Dr. Goldstein conducted

an RFC assessment of Plaintiff in December 2012. (Id. at 434.)

The ALJ also noted that Dr. Goldstein was a member of an orthopedic

practice, Orlin & Cohen Orthopedic Associates. (Id.)

Regarding Dr. Goldstein’s later August 2017 medical opinion,

the ALJ assigned it “less weight.” (Id. at 437.) In assigning

less weight to Dr. Goldstein’s 2017 opinion, the ALJ noted that

“Dr. Goldstein did not see [Plaintiff] from August 2014 until April

2017” and that the 2017 opinion “appears to have been based

primarily on the medical record after the expiration of

[Plaintiff’s] disability insured status [on December 31, 2016].”

(Id.)

Plaintiff argues that Dr. Goldstein’s medical opinions were

not inconsistent with other medical evidence of record, including

Dr. Skeene’s examination finding a limited range of motion of the

lumbar spine and assessing a “moderate” limitation on prolonged

standing, walking, and heavy lifting. (Pl. Mem. at 17-18.)

Plaintiff fails to directly confront the contrary evidence in the

record cited by the ALJ, however, and as such, the Court does not

find his argument persuasive.

Though a conservative course of treatment alone cannot

justify assigning less than controlling weight to a treating

physician’s opinion, an ALJ may examine a disability claimant's

level of care to determine whether the opinion is consistent with

substantial evidence in the record and is, thus, entitled to

controlling weight. See, e.g., Botta v. Colvin, 669 F. App'x 583,

584 (2d Cir. 2016) (summary order) (rejecting claimant's argument

that the ALJ failed to assign sufficient weight to the treating

physician's opinion where the relatively conservative treatment of

plaintiff’s physical impairments was inconsistent with the

treating physician's opinion). According to Dr. Goldstein’s

original 2012 opinion, Plaintiff was unable to sit for more than

4 hours during an 8-hour workday, precluding even sedentary work.

(Tr. at 310-11.) Dr. Goldstein’s August 2017 opinion imposed

further restrictions, limiting Plaintiff to less than 2 hours of

sitting during an 8-hour workday. (Id. at 815.) As observed by

the ALJ, Plaintiff’s conservative treatment was entirely

inconsistent with Dr. Goldstein’s extreme assessment of

Plaintiff’s limitations.

Plaintiff appears to have received essentially no treatment

for his back or neck impairments between August 2014 and March

2017, with the exception of visits to a chiropractor and yoga with

his sister. (Id. at 435, 829.) Combined with the relatively

conservative treatment prior to August 2014, consisting of

quarterly follow-up visits, no injections, and only limited pain

management, it was reasonable for the ALJ to find that such limited

treatment was inconsistent with an opinion finding Plaintiff

“[t]otally [d]isabled and unable to perform all aspects of work.”

(Id. at 311, 435.)

Furthermore, the Court does not agree with Plaintiff that

consulting examiner Dr. Skeene’s examination findings support Dr.

Goldstein’s opinion. Dr. Skeene observed that Plaintiff was “in

no acute distress,” his gait was normal, he could “walk on heels

and toes without difficulty,” he could squat with a full range of

motion, used no assistive device to ambulate, and needed “no help

changing for the exam or getting on and off exam table.” (Id. at

288.) Dr. Skeene did assess a slightly limited range of motion of

the lumbar spine, but concluded only that Plaintiff would have a

“moderate limitation for prolonged standing, walking, and heavy

lifting” as a result. (Id. at 289-90.) Notably, Dr. Skeene

assessed no limitation whatsoever to sitting, as compared to Dr.

Goldstein’s assessment that Plaintiff was unable to sit for more

than 4 (or later, 2) hours in an 8-hour workday, and assessed only

a limitation to “heavy” lifting, as compared to Dr. Goldstein, who

opined that Plaintiff could lift “less than 5 lbs”3 for 2/3 of an

8-hour workday, and “less than 10 lbs” for 1/3 of an 8-hour

workday. (Id. at 289-90, 310-11, 815.) Although both Drs. Skeene

and Goldstein observed that Plaintiff had limited range of motion

in his lumbar spine, such a finding in and of itself does not

appear to support the extreme limitations suggested in Dr.

Goldstein’s opinion in light of the dramatically different

conclusions the two physicians reached.

Plaintiff also does not address the internal inconsistencies

between Dr. Goldstein’s observations while treating Plaintiff and

his ultimate opinion regarding disability. As noted by the ALJ,

during each of his visits, Dr. Goldstein assessed Plaintiff as

having “intact strength in all extremities, normal reflexes, and

normal sensation.” (Id. at 284, 286, 314, 317, 435, 835). “Given

the inconsistencies here, the ALJ was free to discount [the

treating physician’s] opinions in favor of a broader view of the

medical evidence, notwithstanding [Goldstein’s] status as the

‘treating physician.’” Michels v. Astrue, 297 F. App'x 74, 76 (2d

Cir. 2008) (summary order).

3 The Court notes that Dr. Goldstein’s subsequent August 2017 medical opinion

is less restrictive than his 2012 opinion, opining that Plaintiff could lift or

carry “more than 5 lbs, but less than 10 lbs” for a total up to 2/3 of an 8-

hour workday, as opposed to “less than 5 lbs” in 2012. (Tr. at 310, 815.)

Regarding Dr. Goldstein’s 2017 opinion in particular, the ALJ

properly assigned it “less weight” given it appeared primarily to

have been based on the medical record after Plaintiff’s date last

insured. (Tr. at 437.) Such an analysis was not improper, as “a

physician's opinion may potentially be entitled to less weight if

the examination occurred after the date last insured and no

connection is made between the recent diagnosis and plaintiff's

condition during the date last insured.” McAllister v. Colvin,

205 F. Supp. 3d 314, 332 (E.D.N.Y. 2016) (citing Vilardi v. Astrue,

447 F. App'x 271, 272 (2d Cir. 2012) (summary order) (finding

plaintiff's reliance on medical evidence demonstrating a worsening

of her condition after the date last insured was of “little

value”)).

When discussing the good reasons for not giving controlling

weight to a treating physician’s opinion, an ALJ is not required

to explicitly go through each of the factors in her decision, but

her rationale and adherence to the regulation must be clear. See

Halloran v. Barnhart, 362 F.3d 28, 31–32 (2d Cir. 2004) (per

curiam) (affirming ALJ opinion which did “not expressly

acknowledge the treating physician rule,” but where “the substance

of the treating physician rule was not traversed.”). Though the

ALJ devoted most of her analysis to the second and third factors

– supportability and consistency – she was clearly aware of Dr.

Goldstein’s status as a member of a practice devoted solely to

orthopedic medicine, (Tr. at 434), and she also acknowledges the

length and nature of the treating relationship between Plaintiff

and Dr. Goldstein, (id. at 434-37). After a careful review of the

record, the Court finds that the ALJ adequately explained her

rationale, complied with the requirements of § 416.927(c), and

correctly applied the treating physician rule when she decided to

attribute little weight to Dr. Goldstein’s opinions.

b. Drs. Schosheim’s and Galst’s Opinions

Plaintiff also argues that the August 2017 opinions of non-

examining physicians Drs. Schosheim and Galst “cannot constitute

substantial evidence to override a treating source opinion.” (Pl.

Mem. at 18.) In further support of this argument, Plaintiff states

that “neither medical advisor considered [Plaintiff’s] complete

medical file.” (Id. at 20.)

As an initial matter, “[a]n ALJ is entitled to rely on the

opinions of both examining and non-examining State agency medical

consultants, because those consultants are deemed to be qualified

experts in the field of social security disability.” Angela H.-

M. v. Comm'r of Soc. Sec., 631 F. Supp. 3d 1, 9 (W.D.N.Y. 2022)

(citation omitted, emphasis in original). “Although an examining

source is generally afforded more weight than a non-examining

source, an ALJ is allowed to afford a non-examining source more

weight than an examining one.” Id. (internal quotation marks and

citation omitted); see also Camille v. Colvin, 652 F. App'x 25, 28

(2d Cir. 2016) (summary order) (noting that an ALJ is permitted to

conclude that a consulting physician’s opinion is more reliable

than that of the treating physician). The ALJ erroneously stated

in her decision that Dr. Schosheim “reported he had treated

[Plaintiff]” from April 2011 to January 2013, but did not assign

the opinion controlling weight or otherwise appear to consider him

a treating physician in weighing the opinion evidence. (Tr. at

436-37.)

Regarding Plaintiff’s second contention, Plaintiff is correct

that courts have found remand appropriate when an ALJ relies on

the opinion of a non-examining physician who assessed a claimant

“without reviewing the complete record of [the claimant’s] medical

history.” Gunter v. Comm'r of Soc. Sec., 361 F. App'x 197, 200

(2d Cir. 2010) (summary order). Remand was appropriate in those

circumstances because the Second Circuit found that consideration

of the additional evidence in question “might have altered [the

non-examining physician’s] conclusions.” Id; see also Hidalgo v.

Bowen, 822 F.2d 294, 298 (2d Cir. 1987) (“One lengthy record

exhibit not available to [the non-examining Physician] at the time

of the hearing contained clinical findings confirming the treating

physician's diagnosis; this may have altered [the non-examining

physician’s] conclusions.”). Thus, it is not enough for Plaintiff

to simply note that the non-examining physicians failed to review

certain evidence – he must also explain how that evidence might

have altered their conclusions.

Plaintiff argues that neither Dr. Galst nor Dr. Schosheim

reviewed “the evidence from Tr. 799-847,” that Dr. Schosheim

specifically “did not review the April 2017 MRI of the lumbar

spine,” and that Dr. Galst specifically “did not review the August

2016 myocardial perfusion scan demonstrating a small area of mild

ischemia.”4 (Pl. Mem. at 20.) After reviewing the records from

pages 799 through 847 of the Administrative Transcript and the

August 2016 scan, the Court finds that the records would not have

altered the physicians’ conclusions. The pages referenced from

the transcript include (1) two coronary reports from Good Samaritan

hospital, (Tr. at 799-801), that were previously summarized in

Exhibit 21F, (id. at 360); (2) a February 2013 radiology report

showing a “linear atelectatic versus fibrotic change at left base”

in Plaintiff’s lungs (id. at 802); (3) an August 2016

echocardiogram report (id. at 803-04); (4) exercise stress test

reports from August 2016 and April 2011 (id. at 805-06); (5) an

August 2016 myocardial perfusion scan report (id. at 807); (6) the

4 The Court notes that both Dr. Schosheim and Dr. Galst provided their opinions

in the form of responses to a “medical interrogatory” following the remand of

Plaintiff’s case. (Tr. at 776-93.) The Doctors’ opinions are dated August 1,

2017, and August 7, 2017, respectively, and the evidence to which Plaintiff

refers, submitted post-remand, appears to have been received by the SSA on dates

between September and October 2017, after the doctor’s opinions had already

been completed. (Id. at 776-847 (medical records are stamped with a “received

time” date in the bottom left corner).)

results of an April 2017 lumbar MRI (id. at 808-09); (7) a May

2017 nerve conduction study (id. at 810-12); (8) an August 2017

right shoulder MRI (id. at 813-14); (9) Dr. Goldstein’s August

2017 medical opinion (id. at 815-20); (10) Dr. Goldstein’s

treatment notes from April through August 2017 (id. at 821-28);

(11) orthopedic treatment notes from March 2017 (id. at 829-32);

(12) orthopedic treatment notes from August 2014 (id. at 833-35);

(13) August 2016 and 2017 cardiovascular exams (id. at 836-39);

and (14) an October 2017 medical opinion from Dr. Kevin Weiner

along with April through July 2017 treatment notes from the same

doctor (id. at 840-847).

First, the Court notes that the vast majority of the records

referenced by Plaintiff post-date the relevant time period. “[F]or

these records to provide substantial evidence of a disability

during the relevant time period, the records must actually shed

light on [Plaintiff’s] condition during that period.” Clark v.

Saul, 444 F. Supp. 3d 607, 621 (S.D.N.Y. 2020) (citing Flanigan v.

Colvin, 21 F. Supp. 3d 285, 302 (S.D.N.Y. 2014) (denying benefits

where “at best the evidence show[ed] that [the plaintiff]

experienced progressively worsening symptoms that eventually

became disabling” after his date last insured)). Thus, to the

extent the non-examining physicians were without the benefit of

treatment records that postdate the date last insured, the Court

is not convinced that such records would have altered their

conclusions.

Second, regarding the August 2016 myocardial perfusion scan,

the Court notes that the findings and conclusions are nearly

identical to the other myocardial perfusion scan in the record

from June 2011, also conducted at St. Francis Hospital. (Tr. at

370, 807.) Both found “[a] small area of mild ischemia” and

“ejection fraction is greater than 70%.” (Id.) Furthermore, the

ALJ questioned Plaintiff regarding the August 2016 scan in question

during the hearing, and Plaintiff claimed that his heart issues

did not prevent him from working:

[The ALJ]: Okay. I mean, last testing I see Dr. Reich,

August of '16, says your ejection traction is greater

than 70 percent. Is there anything? Okay, so was that -

- does that continue to be an issue that stops you from

being able to work?

[Plaintiff]: No, ma’am.

[The ALJ]: Your heart?

[Plaintiff]: No, ma’am.

[The ALJ]: Okay. So I’m, I’m specifically concerned with

your orthopedic complaints because we're talking about

your treatment with Dr. Goldstein and then your counsel

can, can ask you about, you know, any other complaints

that you have and that he wants to cover here today.

(Id. at 546.) As such, given the findings appear to have mirrored

the earlier June 2011 myocardial perfusion scan, and given

Plaintiff’s testimony that his heart conditions did not stop him

from being able to work, the Court is not persuaded by Plaintiff’s

argument that Dr. Galst’s failure to reference the August 2016

scan means the ALJ could not have relied on his opinion.

Third, regarding the April 2017 MRI, the Court notes that the

evidence is from after the date last insured of December 31, 2016.

Given the non-examining physician already had the benefit of an

earlier lumbar MRI from within the relevant period which also

showed disc herniation, (id. at 318), the Court is not convinced

that Dr. Schosheim’s conclusions would have been altered in the

presence of the additional evidence.

Finally, the Court notes that even if the opinions of Drs.

Galst and Schosheim were deficient for failure to consider the

more recent medical evidence just discussed, the ALJ also based

her RFC on the medical opinion of Dr. Skeene, who did conduct a

physical examination of Plaintiff. (Id. at 287-90.) Dr. Skeene

opined that Plaintiff had a “moderate limitation for prolonged

standing, walking, and heavy lifting,” and the ALJ accorded the

opinion “some weight, but not great weight.” (Id. at 290, 440.)

Other Courts in the Second Circuit “have consistently found that

moderate limitations in a plaintiff's ability to perform

exertional activities are consistent with an RFC for light work.”

Dillon v. Kijakazi, No. 21-CV-07398 (VF), 2023 WL 6316422, at *10

(S.D.N.Y. Sept. 28, 2023) (citing Ruiz v. Comm'r of Soc. Sec., 625

F. Supp. 3d 258, 268 (S.D.N.Y. 2022)); see also White v. Berryhill,

753 F. App'x 80, 82 (2d Cir. 2019) (summary order) (consultative

physician's opinion that plaintiff had moderate limitations in

standing, sitting, and performing “other activities” supported RFC

for light work). Thus, even in the absence of the opinions of

Drs. Galst and Schosheim, the Court finds that the ALJ’s RFC

determination was based upon substantial evidence.

For the foregoing reasons, the Court finds that the ALJ

weighed the opinion evidence in accordance with applicable

regulations, and that her RFC determination was based upon

substantial evidence. Having determined that the ALJ properly

considered the medical opinion evidence before her and considering

the “very deferential standard of review” in Social Security cases,

the Court declines to disturb the ALJ’s findings, which are

supported by substantial evidence. Brault v. Soc. Sec. Admin.,

Com'r, 683 F.3d 443, 448 (2d Cir. 2012).

III. ALJ’s Finding that Plaintiff Could Perform His Past Work

Plaintiff argues that the ALJ failed to establish that

Plaintiff could return to his past work, in part because the ALJ

“failed to meaningfully address the August 11, 2011 determination”

from the NYPD that Plaintiff could no longer perform the “full

duties” of an NYPD officer. (Pl. Mem. at 21.) Plaintiff also

argues that the “vocational expert’s testimony conflicts with the

Dictionary of Occupational Titles (‘DOT’)” regarding the job of a

police lieutenant and sergeant, and Plaintiff’s ability to return

to his past work. (Id. at 22.)

“An ALJ may rely on a vocational expert's testimony regarding

a hypothetical as long as there is substantial record evidence to

support the assumptions upon which the vocational expert based his

opinion, and [the hypothetical] accurately reflect[s] the

limitations and capabilities of the claimant involved.” McIntyre

v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (internal quotation

marks and citation omitted). The Second Circuit has held that “in

the fourth stage of the SSI inquiry, the claimant has the burden

to show an inability to return to [his or her] previous specific

job and an inability to perform [his or her] past relevant work

generally.” Jasinski v. Barnhart, 341 F.3d 182, 185 (2d Cir. 2003)

(citation omitted, emphasis in original). “This inquiry requires

separate evaluations of the previous specific job and the job as

it is generally performed.” Id. “Many specific jobs differ from

those jobs as they are generally performed, and the expert may

identify those unique aspects without contradicting the Dictionary

[of Occupational Titles].” Id.

First, the Court finds that the ALJ did not improperly

disregard the NYPD’s decision that Plaintiff was entitled to

Accident Disability Retirement based on his coronary artery

disease. “A determination made by another agency regarding a

claimant's disability is not binding on the Social Security

Administration.” Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir.

2013) (summary order) (citing 20 C.F.R. § 404.1504). “Nonetheless,

it is entitled to some weight and should be considered.” Id.

(internal quotation marks and citation omitted). As it is written,

Plaintiff’s disability determination from the NYPD refers only to

his heart disease, and not to any back pain or any other issues.

(Tr. at 304-06.) As discussed supra, Plaintiff testified during

the hearing before the ALJ that his heart conditions no longer

preclude him from being able to work. (Id. at 546.) The ALJ

referenced and considered the NYPD’s disability determination in

her RFC determination, but granted no weight to its conclusion

regarding disability. (Id. at 438.) Given the record, the Court

finds no error in the ALJ’s dismissal of the NYPD’s disability

determination.

Second, the ALJ properly determined that Plaintiff was able

to perform his past work by relying on the VE’s testimony. During

Plaintiff’s questioning by the ALJ, he testified that his work as

a police sergeant differed from being a patrol office as it was

“[m]ore administrative work” and involved supervising officers in

the field and at the “station house.” (Id. at 544-45.) Likewise,

Plaintiff further explained that his work as a police lieutenant

was “[m]ore desk supervisory” and agreed that it was primarily a

“desk-type job.” (Id.) Upon the conclusion of Plaintiff’s

questioning by the ALJ and his attorney, the VE asked for

additional information regarding “the actual duties” Plaintiff had

as a police lieutenant. (Id. at 567.) Following additional

clarification from Plaintiff, the VE asked additional follow-up

questions regarding the specifics of Plaintiff’s work. (Id. at

568-69.) The ALJ subsequently provided the VE with a hypothetical

which accurately described Plaintiff’s RFC, and asked the VE if

such an individual could perform Plaintiff’s past work. (Id. at

570.) The VE stated that such an individual could not perform

work as a “police officer” or as a “patrol officer” but could

perform his past work of a police lieutenant or sergeant, which

were both classified as “light” work. (Id. at 569-70.)

Plaintiff argues that, based on the DOT descriptions, the job

of a police lieutenant requires crawling, and that the job of a

police sergeant requires “frequent” exposure to weather, both of

which conflict with the RFC described by the ALJ in her

hypothetical. (Pl. Mem. at 23.) Plaintiff further argues that

both jobs would require more standing and walking than Plaintiff’s

RFC allowed. (Id. at 22.) The ALJ noted in her decision, however,

that Plaintiff “testified that his work as a police sergeant and

police lieutenant were primarily desk jobs” and that as a result

“the record does not establish that [Plaintiff] had limitations

that would preclude him from performing his past relevant work”

during the relevant period. (Tr. at 441.) Plaintiff never

described needing to crawl in his testimony regarding his past

work as a Police Lieutenant, and likewise did not describe his

work as a Police Sergeant as involving “frequent” exposure to the

elements. (See generally id. at 544-70.) Plaintiff’s hearing

testimony supports the ALJ’s conclusion that the police sergeant

and lieutenant position as Plaintiff performed it were consistent

with his RFC. See Ramos v. Berryhill, 395 F. Supp. 3d 329, 342

(S.D.N.Y. 2019) (ALJ did not err in finding that plaintiff with

sedentary RFC could return to past work as a corrections officer,

notwithstanding the DOT’s classification of the job as medium work,

given his testimony describing his past work as “primarily a desk

job”). The Plaintiff has the burden to show an inability to return

to his previous work as he performed it, and not just as it is

customarily performed throughout the economy, which he has failed

to do. See Jasinski, 341 F.3d at 185. As a result, the ALJ

committed no error in her Step Four analysis.

Finally, even if the ALJ erred at Step Four, her error would

be harmless and would not warrant remand. After the VE testified

that Plaintiff could perform his past work as a police lieutenant

or sergeant, the ALJ asked if there are “other jobs in the national

economy that such a hypothetical individual could perform.” (Tr.

at 571.) The VE testified that there were, including police aide,

clerical assistant, and customer service representative.5 (Id.)

The ALJ noted these findings in her decision and stated that the

VE “found that an individual with the same medical vocational

profile as the claimant could perform” other work in the national

economy. (Id. at 441.) Plaintiff points to no error in this

5 The VE classified police aide and customer service representative as being

“sedentary” roles and clerical assistant as being “light” work. (Tr. at 571.)

determination or reliance on the VE’s testimony, given the ALJ was

not required to perform a transferable skills analysis as Plaintiff

was not “of advanced age.” See 20 CFR § 404.1568 (d) (4); see also

McDonaugh v. Astrue, 672 F. Supp. 2d 542, 566-67 (S.D.N.Y. 2009)

(“the regulations only state that a lack of transferable skills

may rule out light or sedentary work for individuals age 55 or

older”). Therefore, because the ALJ’s alternative Step Five

analysis was proper, a different outcome at Step Four would do

nothing to change the overall result. Roman Jimenez v. Colvin,

No. 12-CV-6001 (PGG) (FM), 2014 WL 572721, at *17 (S.D.N.Y. Feb.

13, 2014), report and recommendation adopted sub nom. Jimenez v.

Colvin, 2016 WL 5660322 (S.D.N.Y. Sept. 30, 2016) (finding error

at step four harmless in light of alternative step five

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 amend the caption to reflect the new Commissioner,

enter judgment in favor of the Commissioner and close this case.

SO ORDERED.

DATED: March 11, 2024 + “2 VY,

Brooklyn, New York ) ) ayo □ ewe

HON. KIYO A. MATSUMOTO |

United States District Judge

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