Effland v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DEBRA E.,

Plaintiff,

v. 6:18-CV-00513 (NAM)

“| COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Appearances:

Peter W. Antonowicz

Office of Peter W. Antonowicz

148 West Dominick Street

Rome, New York 13440

Counsel for Plaintiff

June L. Byun

Social Security Administration

Office of Regional General Counsel - Region II

26 Federal Plaza - Room 3904

New York, New York 10278

Counsel for Defendant

Hon. Norman A. Mordue, Senior United States District Court Judge

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiff Debra E. filed this action under 42 U.S.C. § 405(g), challenging the denial of

her application for Supplemental Security Income (“SSI”) under the Social Security Act (“the

Act”). (Dkt. No. 1). The parties’ briefs are presently before the Court. (Dkt. Nos. 10, 11).

After carefully reviewing the administrative record, (Dkt. No. 8), the Court affirms the denial

decision.

Il. BACKGROUND

A. Procedural History

Plaintiff applied for disability benefits in February 2015, alleging that she had been

disabled since January 7, 2014. (R. 12). Plaintiff alleged that her disability was caused by

degenerative disc disease, arthritis, bulging/herniated discs, vertigo, sciatica, depression, and

anxiety. (R. 177). The Social Security Administration (“SSA”) denied Plaintiffs application

on July 7, 2015. (See R. 60-67). Plaintiff appealed that determination and requested a hearing

before an Administrative Law Judge (“ALJ”). (See R. 68-70). The hearing was held on May

10, 2017 before ALJ Jeremy G. Eldred, and Plaintiff was represented by counsel. (R. 26-46).

On June 15, 2017, the ALJ issued a decision finding that Plaintiff was not disabled under the

Act. (R. 12-21). Plaintiff's subsequent request for review by the Appeals Council was denied.

»|(R. 1-3). Plaintiff commenced this action on April 27, 2018. (Dkt. No. 1).

B. Plaintiff?s Background and Testimony

Plaintiff was born in 1970. (R. 31). She graduated from high school and attended one

year of college. (R. 248). She worked as a Certified Nurse Assistant (“CNA”) from 2013 to

2014. (R. 55, 178). Prior to her work as a CNA, Plaintiff worked as a personal care assistant

(2012-2013), and as a “skiptrace representative” for a loan company checking credit reports and

z| researching phone numbers and addresses (1992-2012). (dd.). Plaintiff testified that she

stopped working because of her medical conditions. (R. 177). She has not worked since

January 7, 2014. (/d.).

Plaintiff testified that she suffered from a herniated disc, sciatica, arthritis, degenerative

joint disease, headaches, and spinal stenosis. (R. 34). Plaintiff stated that her conditions cause

pain and muscle spasms in her mid and lower back, and that she gets headaches that can last

two to four days. (R. 34-35). Plaintiff stated that she is unable to get much sleep and is

“exhausted on a daily basis.” (R. 36). Plaintiff was treating her conditions with medications

and home exercises. (R. 35). Plaintiff stated that she is in pain every day, and experiences leg

twitches, charley horses, back pain, and arthritis. (R. 201). Plaintiff reported that it “hurts to

stand too long,” that she is unable to sit for more than 10 to 20 minutes at a time, that she “can’t

4) walk [ ] far without pain,” and that she can only lift up to 20 pounds. (R. 197-98).

Plaintiff lives with her husband and two daughters. (R. 427). Plaintiff stated that her

daily routine includes driving her husband to and from work, and completing household chores

if she is able. (R. 37). Plaintiff reported cooking simple meals four to five times a week, doing

laundry three times a week, and cleaning the house two to three times weekly. (R. 427).

Plaintiff reported that she spends her time watching television, playing on the computer,

| listening to the radio, reading, and going to her kids’ sports games and school events. (R. 196,

427, 433). Plaintiff's conditions have not changed her ability to manage her finances, pay bills,

count change, or handle a savings account. (R. 196). Plaintiff reported that she “cannot drive

long distances unless necessary,” because it “bothers [her] back to sit that long in [a] car.” (/d.).

Plaintiff reported no problems getting along with family, friends, and neighbors. (R. 197).

With regard to personal care, Plaintiff is able to dress, bathe, and groom herself. (R.

Plaintiff reported showering three times a week, but noted that “washing her backside is

hard.” (R. 427). She stated that she dresses herself seven times a week. (/d.). Plaintiff

reported having difficulty shaving her legs and clipping her toenails because bending down

hurts her back. (R. 194).

C. Medical Evidence of Disability

Plaintiff's disability claim stems from conditions including degenerative disc disease,

arthritis, bulging/herniated discs, vertigo, sciatica, depression, and anxiety. (R. 177). Plaintiff

claims that she has struggled with these conditions since 2014 and has received treatment from

a number of medical providers.

“ 1. Laura Surman, Nurse Practitioner

On January 2, 2013, Plaintiff presented to Nurse Practitioner (“NP”) Laura Surman

complaining of stiffness and back pain. (R. 421-25). NP Surman ordered Plaintiff to begin

physical therapy, complete at-home exercises, and apply heat and massage therapy as needed.

(R. 425). Ata follow-up appointment, NP Surman ordered X-rays for Plaintiffs lumbar spine,

which showed “minor degenerative changes.” (R. 415-20).

In December 2013, Plaintiff presented to NP Surman with continued back pain and pain

“shoot[ing] down her left leg.” (R. 410). Plaintiff noted that the pain was aggravated by

prolonged sitting and standing. (/d.). NP Surman ordered a Depo-Medrol Injection and an

MRI. (R. 414). Plaintiff's MRI results showed a left lateral L5-S1 protrusion (herniated disc)

that was “producing compression on the left S1 nerve root sleeve.” (R. 409). There was also a

“diffuse disc bulging at L4-5 with bilateral facet hypertrophy,” and “marked degenerative facet

hypertrophy at L3-4” with “minimal bulging.” (/d.). NP Surman encouraged Plaintiff to

continue with physical therapy and consult with a pain clinic for further treatment. (R. 407).

At follow-up appointments from 2014 through 2017, NP Surman frequently encouraged

Plaintiff to adjust her diet, exercise regularly, attend physical therapy, and to complete the home

exercises as directed by her providers. (See R. 357-425, 438-547). Throughout that period,

Plaintiff generally reported her back pain level as two to four out of ten. (See R. 357, 363, 390,

404). In August 2014, NP Surman recommended that Plaintiff see a neurosurgeon to assist with

her plan of care. (R. 381). NP Surman’s office notes from March 2017 indicate that a

neurosurgeon determined that Plaintiff was “not [a] candidate” for surgery. (R. 509).

In August 2016, NP Surman completed a Medical Source Statement (co-signed by Dr.

Bruce Elwell), which found that: (1) Plaintiff could occasionally carry and lift 20 pounds, and

frequently carry and lift 10 pounds; (2) Plaintiff could walk and stand for 20 minutes without a

break, stand and walk for 1 hour of an 8 hour day, sit for 20 minutes at a time, and sit for a total

of 1 hour in an 8 hour day; (3) Plaintiff would need to lay down intermittently throughout the

day with unpredictable frequency; and (4) that Plaintiff's health conditions would likely cause

her to be absent from work “[a]bout four days per month.” (R. 505-506).

2. Physical Therapy Treatment

In January 2013, Plaintiff presented to Physical Therapists Brittany Wolanin and Shane

Davis for treatment of her back pain. (R. 352). Plaintiff saw Wolanin and Davis for a number

of therapy appointments, after which Plaintiff reported some improvement in her pain

symptoms. (R. 351). Davis noted a “12 point improvement in Plaintiff's back index score

demonstrating good functional progress.” (R. 350). Davis discharged Plaintiff from physical

therapy in February 2013 after her “progress had plateaued,” and transitioned her to

z| independent management of her pain symptoms. (R. 349).

Plaintiff returned to physical therapy with Davis in January 2014. (R. 269). Plaintiff

reported continued left sided lower back pain and leg pain. (/d.). Plaintiff reported that the pain

was a three or four out of ten. (/d.). Davis noted that Plaintiff had a moderate to significant

limitation with walking, washing, dressing, sleeping, and prolonged standing. (/d.). Davis

assessed that Plaintiff had “good” rehabilitation potential and developed a plan of care that

included therapeutic exercises, manual massage therapy, patient education, and

electrostimulation. (R. 272-74). Davis’s treatment records show that Plaintiff made some

progress with treatment. (See generally R. 277-333). In April 2014, Davis reported that

“[Plaintiff] was able to complete her full program with no episodes of increased pain,” but noted

that “progress with [Plaintiff] has plateaued at this time with [range of motion], strength, and

function.” (R. 324-27). Davis discharged Plaintiff to a “step down” program. (R. 327).

3. Dr. Jacqueline Santoro, Consultative Examiner

In June 2015, Plaintiff presented to Dr. Santoro for a consultative psychiatric

examination. (R. 431-34). Dr. Santoro observed that Plaintiffs “demeanor and responsiveness

to questions was cooperative,” and her “[m]anner of relating was adequate.” (R. 432). She

noted that Plaintiff's posture was normal, but her “motor behavior was restless.” (/d.). Plaintiff

| told Dr. Santoro that she “was in discomfort” during the exam. (/d.). Dr. Santoro assessed that

Plaintiff has no limitations with regard to following and understanding simple directions,

performing simple tasks, and maintaining attention and concentration. (R. 433). She noted that

Plaintiff had mild limitations to maintaining a regular schedule, learning new tasks, performing

complex tasks, making appropriate decisions, relating with others, and dealing with stress.

(Id.). Dr. Santoro opined that although the “results of the [ ] evaluation appear to be consistent

| with psychiatric problems,” any limitations caused by those issues were “insufficient to

interfere with her ability to function on a daily basis.” (/d.). Dr. Santoro diagnosed Plaintiff

with “unspecified depressive disorder,” and noted that her prognosis was “[flair, given her

history of health issues.” (R. 434).

4. Dr. Justine Magurno, Consultative Examiner

Plaintiff reported for a consultative physical examination by Dr. Magurno in June 2015.

(R. 426-30). Plaintiff reported that she had low back pain related to herniated discs at L5-S1

and middle back pain related to arthritis. (R. 426). Plaintiff stated that her lower back hurts

most of the time, and ranges from a four to five out of ten. (/d.). Plaintiff explained that her

| pain improves when she sits and rests. (/d.). Plaintiff reported that she also suffers from vertigo

and carpal tunnel syndrome. (/d.). Dr. Magurno observed that Plaintiff had normal gait, but

“appeared to be in mild distress.” (R. 428). Plaintiff could walk on heels and toes with no

difficulty and could do a half squat. (/d.). Plaintiff did not need help changing for the exam,

and was able to get onto the exam table by herself. (/d.). Plaintiff needed assistance getting off

the table. (/d.). Plaintiff could rise from a chair with moderate difficulty. U/d.). Dr. Magurno

| assessed that Plaintiff had full rotary movement bilaterally and had a negative straight leg raise

bilaterally. (/d.). She found that Plaintiff had full strength in her upper extremities, and her

right lower extremity. (R. 429). Plaintiff had “4/5 left knee flexion” and “4/5 left toe

extension.” (/d.).

Dr. Magurno determined that Plaintiff's prognosis was fair, and diagnosed Plaintiff with

low back pain due to herniated discs, arthritis, vertigo, and carpal tunnel syndrome. (R. 429).

She assessed that Plaintiff had moderate limitations to squatting, lifting, and carrying, along

with a moderate to marked limitation for bending. (/d.). Dr. Magurno found that Plaintiff had

mild limitations for reaching and pulling. (/d.). She noted that Plaintiff should avoid heights

and ladders. (/d.).

D. ALJ’s Decision Denying Benefits

On June 15, 2017, ALJ Eldred issued a decision denying Plaintiff's application for

disability benefits. (R. 12-21). At step one of the five-step sequential analysis, the ALJ found

that Plaintiff had not engaged in substantial gainful activity since February 9, 2015. (R. 14).

At step two, the ALJ determined that, under 20 C.F.R. § 416.920(c), Plaintiff had three

A\ “severe” impairments: degenerative disc disease of the lumbar spine, mild degenerative joint

disease in the knees, and obesity. (/d.). Specifically, the ALJ noted that MRI results of

Plaintiff's lumbar spine showed degenerative disc disease, a disc herniation at LS-S1, a disc

protrusion with facet disease, and mild to moderate stenosis. (/d.). X-rays of Plaintiffs knees

showed “mild degenerative changes and slight effusion in both knees.” (/d.). The ALJ noted

that Plaintiff was obese. (/d.). The ALJ found that Plaintiffs carpal tunnel syndrome, vertigo,

.| headaches, and anxiety were not severe impairments. (R. 15-17).

At step three, the ALJ determined that, while severe, Plaintiff did not have an

impairment or combination of impairments that met or equaled the criteria for one of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d),

416.925, and 416.926) (the “Listings”). (R. 17). The ALJ concluded that “[t]he severity of

[Plaintiffs] physical impairments, considered singly and in combination, does not meet or

z| medically equal the criteria of any impairment listed in Appendix 1, including listings 1.02

(major dysfunction of a joint) and 1.04 (disorders of the spine).” (/d.).

At step four, the ALJ determined that Plaintiff “has the residual functional capacity to

perform the full range of sedentary work, as defined in 20 C.F.R. § 416.967(a).”! (R. 17). In

' Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying

articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which

involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties.

support of that determination, the ALJ observed that “[Plaintiff’s] back and knee impairments,

considered in combination with her obesity, would be expected to cause some limitations for

standing and walking, but not limitations as severe as those alleged by [Plaintiff].” (R. 18).

The ALJ found that “the clinical findings do not suggest that the claimant would be unable to

stand or walk for at least two hours in an eight-hour day or unable to lift or carry at least ten

| pounds, as required in sedentary exertional work.” (/d.). The ALJ noted that Plaintiff “had

somewhat limited range of motion of her lumbar spine and hips,” but had “no sensory or

strength deficits in her lower extremities.” (/d.).

The ALJ found that Plaintiff's medications reduced her pain, and that her physical

therapy records indicate that her back symptoms improved with treatment. (R. 19). The ALJ

concluded that “[Plaintiff’s] conservative treatment and response to treatment suggest that her

| back condition is not as severe as she alleges.” (/d.). The ALJ also noted that Plaintiff's

activities of daily living included driving her husband and children to work and school, cooking

meals four to five times per week, cleaning, regular shopping, and personal grooming and

bathing. (/d.).

The ALJ gave partial weight to Dr. Magurno’s opinion that Plaintiff had mild limitations

to reaching, pulling, and pushing, moderate limitations to squatting, lifting, and carrying, and

z| moderate to marked limitations to bending. (/d.). The ALJ stated that “Dr. Magurno’s

description of the claimant’s limitations does not suggest that the claimant would be unable to

perform sedentary work.” (/d.).

The ALJ gave little weight to Dr. Elwell’s opinions (including his co-signed Medical

Source Statement completed by NP Surman) that Plaintiff had severe limitations to sitting and

Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

See 20 C.E.R. § 416.967(a).

standing in any combination for a full work day. (R. 19-20). The ALJ noted that these

conclusions were “not consistent with the evidence as a whole,” and that “[Plaintiff’s] reported

activities of daily living demonstrate that she is not as limited as Dr. Elwell’s opinion suggests.”

(R. 20). The ALJ also found that the providers’ recommendations that Plaintiff swim and

exercise more regularly were “not consistent” with the highly restrictive Medical Source

| Statement. (Id.).

The ALJ stated that Plaintiff's RFC “is supported by Dr. Magurno’s opinion, the clinical

findings during the consultative examination, the claimant’s treatment history, and the

claimant’s reported activities of daily living, all of which suggest that she retains the ability to

meet the exertional demand of at least sedentary work on a sustained basis.” (/d.).

Finally, at step five, the ALJ found that Plaintiff “is capable of performing her past

| relevant work as a skip trace representative.” (R. 20). The ALJ noted that Plaintiff “testified

that this job required her to sit at a desk, run credit reports, and research phone numbers and

addresses.” (/d.). Alternatively, the ALJ concluded that “there are other jobs existing in the

national economy that [Plaintiff] 1s also able to perform,” citing the testimony of the vocational

expert that an individual with her limitations would be able to perform the requirements of

sedentary occupations such as a “document preparer” or “addresser.” (/d.). Therefore, the ALJ

z| determined that Plaintiff was not disabled because she was capable of making a successful

adjustment to other work that exists in significant numbers in the national economy. (R. 20-

21).

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Il. DISCUSSION

A. Disability Standard

To be considered disabled, a claimant must establish that they are “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

4| last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). In

addition, the claimant’s impairment(s) must be “of such severity that he is not only unable to

do his previous work but cannot, considering his age, education, and work experience, engage

in any other kind of substantial gainful work which exists in the national economy... .” 42

U.S.C. § 1382c(a)(3)(B).

The SSA uses a five-step sequential process to evaluate disability claims:

First, the [Commissioner] considers whether the claimant is

currently engaged in substantial gainful activity. If he is not, the

[Commissioner] next considers whether the claimant has a “severe

impairment” which significantly limits his 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 meets or equals the

criteria of an impairment listed in Appendix 1 of the regulations. If

the claimant has such an impairment, the [Commissioner] will

consider him [per se] disabled .... Assuming the claimant does not

have a listed impairment, the fourth inquiry is whether, despite the

claimant’s severe impairment, he has the residual functional

capacity to perform his past work. Finally, if the claimant is unable

to perform his past work, the [Commissioner] then determines

whether there is other work which the claimant can perform.

Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d

145, 151 (2d Cir. 2012)); see also 20 C.F.R. § 416.920. The Regulations define residual

functional capacity (“RFC”) as “the most [a claimant] can still do despite your limitations.” 20

C.F.R. § 416.945(a)(1). In assessing the RFC of a claimant with multiple impairments, the SSA

1]

considers all “medically determinable impairments,” including impairments that are not severe.

Id. § 416.945(a)(2). The claimant bears the burden of establishing disability at the first four

steps; the Commissioner bears the burden at the last. Selian, 708 F.3d at 418.

B. Standard of Review

In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court

4) does not determine de novo whether Plaintiff is disabled. Rather, the Court must review the

administrative record to determine whether “there is substantial evidence, considering the

record as a whole, to support the Commissioner’s decision and if the correct legal standards

have been applied.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009).

When evaluating the Commissioner’s decision, “the reviewing court is required to

examine the entire record, including contradictory evidence and evidence from which

conflicting inferences can be drawn.” Selian, 708 F.3d at 417 (quoting Mongeur v. Heckler,

722 F.2d 1033, 1038 (2d Cir. 1983)). The Court may set aside the final decision of the

Commissioner only if it is not supported by substantial evidence or if it is based upon a legal

error. 42 U.S.C. § 405(g); Selian, 708 F.3d at 417; Talavera, 697 F.3d at 151. “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.” Brault v. Soc. Sec. Admin., Comm’r, 683

| F.3d 443, 447-48 (2d Cir. 2012) (quoting Moran, 569 F.3d at 112). The substantial evidence

standard is “very deferential,” and the Court may only reject the facts found by the ALJ “if a

reasonable factfinder would have to conclude otherwise.” Id. at 448 (quoting Warren v.

Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)).

Consequently, “[e]ven where the administrative record may also adequately support

contrary findings on particular issues, the ALJ’s factual findings ‘must be given conclusive

12

effect’ so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46,

49 (2d Cir. 2010) (quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)).

C. Analysis

Plaintiff asserts two arguments challenging the Commissioner’s denial decision. (Dkt.

No. 10). Specifically, Plaintiff contends that the ALJ erred by: (1) improperly evaluating the

severity of Plaintiffs impairments under Listing 1.04; and (2) giving inappropriate weight to

certain opinion evidence resulting in an inaccurate RFC. (d., pp. 9-12). The Court will

address each argument in turn.

1. Assessment of Plaintiff’s Listing Impairments

First, Plaintiff argues that “the ALJ mischaracterized the severity of the claimant’s spine

conditions,” and “failed to acknowledge the presence of findings, particularly compromise of

| the S1 nerve root, that are specifically mentioned in listing 1.04.” (See Dkt. No. 10, pp. 9-10).

Plaintiff states that this error prevented the ALJ from “properly consider[ing] whether

claimant’s medical condition met or equaled the [Listing].” (/d.). In response, the

Commissioner argues “the ALJ properly found that Plaintiff's lumbar spine impairment did not

meet or medically equal the criteria of Listing 1.04 and his finding is supported by substantial

evidence.” (See Dkt. No. 11, pp. 7-9). At the third step in the five-step sequential analysis, an

ALJ may find that a claimant has shown that her impairment matches a listing only if the

impairment “meet[s] all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521,

530 (1990) (emphasis added). “An impairment that manifests only some of those criteria, no

matter how severely, does not qualify.” Jd. The Listings “describe[ ] for each of the major

body systems impairments that [the SSA] consider[s] to be severe enough to prevent an

individual from doing any gainful activity, regardless of his or her age, education, or work

13

experience.” 20 C.F.R. § 416.925(a). Listing 1.04 relates to “Disorders of the spine (e.g.,

herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative

disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root

(including the cauda equina) or the spinal cord.” 20 C.F.R. Part 404, Subpart P, Appendix 1, §

1.04 (“Listing 1.04”). In addition, the claimant must satisfy one of three criteria: (A) evidence

of nerve root compression; (B) spinal arachnoiditis; and (C) lumbar spinal stenosis resulting in

pseudoclaudication. Jd. Although Plaintiff does not specify which of the criteria she believes

she satisfies, her argument focuses on the existence of positive straight leg raise tests and nerve

root compression, which are only required under Listing 1.04(A). That section mandates that

the claimant must show each of the following:

(1) Evidence of nerve root compression characterized by neuro-

anatomic distribution of pain, (2) limitation of motion of the spine,

(3) motor loss (atrophy with associated muscle weakness or muscle

weakness) accompanied by sensory or reflex loss and, (4) if there is

involvement of the lower back, positive straight-leg raising test

(sitting and supine).

Id., § 1.04(A). To meet these requirements, a claimant “must offer medical findings equal in

severity to all requirements, which [ ] must be supported by medically acceptable clinical and

laboratory diagnostic techniques.” Knight v. Astrue, 32 F. Supp. 3d 210, 218 (N.D.N.Y. 2012)

(citing 20 C.F.R. § 416.926(b)). Thus, the claimant bears the burden of proving that her

impairments meet the particular Listing. See Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)

(explaining that the burden shifts to the Commissioner at step five, after “the claimant satisfies

her burden of proving the requirements in the first four steps”).

An ALJ is not required, in every instance, to provide an express explanation for his

conclusion that a claimant’s impairments fail to meet or equal the requirements of a Listing.

See Ryan y. Astrue, 5 F. Supp. 3d 493, 507 (S.D.N.Y. 2014) (citing Berry v. Schweiker, 675

14

F.2d 464, 469 (2d Cir. 1982)). “[W]here the evidence on the issue of whether a claimant meets

or equals the listing requirements is equipoise and ‘credibility determinations and inference

drawing is required of the ALJ’ to form his conclusion at step 3, the ALJ must explain his

reasoning.” Id. (quoting Berry, 675 F.2d at 469). Although “an ALJ ‘should set forth a

sufficient rationale in support of his decision to find or not to find a listed impairment,’ the

absence of an express rationale for an ALJ’s conclusions does not prevent [the court] from

upholding them so long as [the court] is ‘able to look to other portions of the ALJ’s decision and

to clearly credible evidence in finding that his determination was supported by substantial

evidence.’” Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109, 112 (2d Cir. 2010) (quoting

Berry, 675 F.2d at 469).

In support of her contention that her back condition meets Listing 1.04, Plaintiff points

| to MRI evidence showing that she has a herniated disc with nerve compression. (See Dkt. No.

10, p. 9). Plaintiff alleges that the ALJ’s failure to acknowledge this demonstrates a failure to

“engage[] in a proper evaluation of the listed impairment.” (/d., pp. 9-10). In response, the

Commissioner argues that Plaintiff cannot show that Listing 1.04(A) was met because Plaintiff

did not have motor loss or sensory or reflex loss. (Dkt. No. 11, p. 8). The Commissioner adds

that Plaintiff also cannot show that Listings 1.04(B) or 1.04(C) were met because there were no

clinical findings during the relevant period showing evidence of spinal arachnoidids, lumbar

spinal stenosis resulting in pseudoclaudication, or an inability to ambulate. (/d.).

As the Commissioner notes, the burden is on Plaintiff to show that all of the

requirements are met before she can satisfy a Listing. Here, the Court finds that there is no

medical evidence of “motor loss accompanied by sensory or reflex loss,” as required by Listing

1.04(A). Notably, the record shows that NP Surman frequently observed that Plaintiff had

15

“steady unassisted gait,” and “normal sensation, reflexes, coordination, muscle strength and

tone.” (See, e.g., R. 366, 371, 380, 387, 393, 413, 419, 449, 513, 522). The record also

contains at least two instances where Plaintiff’s straight leg raise tests were negative, including

one performed by her own treating provider. (See, e.g., R. 346, 428). Plaintiff also frequently

denied muscle weakness and loss of strength. (See, e.g., R. 365, 383, 392, 397, 500, 535).

| Consultative Examiner Dr. Magurno found that Plaintiff walked with a normal gait, did not

need help changing for the examination, and was able to get onto the examination table by

herself. (R. 428). Dr. Magurno also noted that Plaintiff had no sensory deficit, and had full

strength in her upper extremities and right lower extremity. (R. 429). As to the left lower

extremity, Plaintiff exhibited 4/5 left knee and 4/5 left toe flexion. (/d.). In light of this

evidence, the Court finds that the ALJ could reasonably conclude that Plaintiff did not meet the

| criteria of Listing 1.04(A). Moreover, the Court finds no evidence, nor does Plaintiff argue, that

her condition met the requirements of Listings 1.04(B) or 1.04(C).

Accordingly, Plaintiff has failed to show that the ALJ erred in concluding that Plaintiff

did not meet or equal the impairment criteria for Listing 1.04. See Otts v. Comm’r of Soc. Sec.,

249 F. App’x 887, 889 (2d Cir. 2007) (noting that it was the plaintiff's “burden to demonstrate

that her disability met all of the specified medical criteria of a spinal disorder” and upholding

z| the ALJ’s decision that the plaintiffs impairments did not meet or equal Listing 1.04(A)

because there was no evidence of motor loss accompanied by sensory or reflex loss or of nerve

root compression); Conetta v. Berryhill, 365 F. Supp. 3d 383, 396-98 (S.D.N.Y. 2019) (finding

that Plaintiff failed to show she met Listing 1.04 where there was insufficient medical evidence

to show that she met all of the criteria); Kelsey v. Comm’r of Soc. Sec., 335 F. Supp. 3d 437,

444 (W.D.N.Y. 2018) (affirming the ALJ’s finding that Listing 1.04 criteria were not met

16

because “Plaintiff's motor strength was consistently normal with no evidence of atrophy, as

were her sensation and deep-tendon reflexes”).

2. Evaluation of the Medical Evidence

Second, Plaintiff argues that the ALJ erred in failing to properly assess and weigh the

medical evidence when determining the Plaintiff's RFC. (Dkt. No. 10, pp. 10-12).

A\ Specifically, Plaintiff alleges that the ALJ’s conclusion that Plaintiff could perform a “full range

of sedentary work” is at odds with the opinions from Plaintiff’s treating providers, NP Surman

and Dr. Elwell. (/d.). Plaintiff contends that the limitations identified by Plaintiff's treating

providers “are entirely consistent with the objective evidence with regard to the injuries to

plaintiff's spine.” (/d., p. 11). In response, the Commissioner argues that the ALJ “properly

exercised his discretion in resolving the evidentiary conflicts . .. and assessed an RFC that is

| supported by substantial evidence.” (Dkt. No. 11, pp. 10-11). The Commissioner states that

“(t]he ALJ carefully considered all of the evidence of record, including treatment records,

opinion evidence by Dr. Elwell [and NP Surman,] consultative examiner Dr. Magurno, and

Plaintiffs broad range of activities.” (/d., p. 12). The Commissioner also contends that “Dr.

Elwell’s opinion was inconsistent with the clinical findings by the consultative examiner,” and

that the results of a consultative examination “may provide substantial evidence that a claimant

z|is not disabled.” (/d., p. 13).

Generally, under the treating physician rule, a hearing officer owes “deference to the

medical opinion of a claimant’s treating physician.” Church v. Colvin, 195 F. Supp. 3d 450,

453 (N.D.N.Y. 2016) (citing Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)). However,

“[w]hen a treating physician’s opinion is not consistent with other substantial evidence in the

record, such as the opinions of other medical experts, . . . the hearing officer need not give the

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treating source opinion controlling weight.” Jd. Thus, “the Commissioner retains the discretion

to reach a conclusion inconsistent with an opinion of a treating physician where that conclusion

is supported by sufficient contradictory evidence.” Cohen v. Comm’r. of Soc. Sec., 643 F.

App’x 51, 53 (2d Cir. 2016) (noting that an opinion from a claimant’s treating physician is “not

absolute”). And, while the Second Circuit has “cautioned that ALJs should not rely heavily on

4| the findings of consultative physicians after a single examination,” Selian, 708 F.3d at 419, an

opinion from a consultative medical examiner may nonetheless constitute substantial evidence,

Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011) (citing Mongeur v. Heckler, 722 F.2d

1033, 1039 (2d Cir. 1983) (per curiam)).

Upon review of the record, the Court finds that the ALJ did not err in concluding that

Dr. Elwell and NP Surman’s Medical Source Statement (R. 505-06) conflicted with other

medical evidence in the record. The ALJ explicitly addressed their highly restrictive assessment

and assigned it “little evidentiary weight because it [was] not consistent with the evidence as a

whole.” (R. 20). Specifically, the ALJ found that their conclusions were contrary to Plaintiff's

reported activities of daily living, Dr. Magurno’s consultative examination, as well as Plaintiff's

treating records. (/d.). The ALJ noted that while MRI results showed disc herniation, stenosis,

and other degenerative changes, physical examinations frequently found that Plaintiff had

normal gait, needed no help changing, had only “somewhat limited range of motion of her

lumbar spine and hips,” “retained full range of motion of her knees and ankles,” and “had no

sensory or strength deficits in her lower extremities.” (R. 18). The ALJ also found the

providers’ repeated recommendation that Plaintiff swim and exercise regularly was inconsistent

with the Medical Source Statement—which “suggests that [Plaintiff] is essentially bedridden,

which she is not.” (R. 20). According to the ALJ’s analysis, the evidence “suggest[s] that the

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claimant is able to stand and/or walk at least two hours in an eight-hour day and perform

postural activities,” and therefore “[Plaintiff] retains the ability to meet the exertional demands

of at least sedentary work on a sustained basis.” (R. 18, 20).

The ALJ’s decision makes clear that he considered the opinions of Plaintiffs treating

physicians, but discounted them because they contradicted other medical evidence and

4| Plaintiff's activities of daily living? Although Plaintiff regularly reported pain and discomfort

from her back condition, “disability requires more than the mere inability to work without

pain.” Prince v. Astrue, 490 F. App’x 399, 400 (2d Cir. 2013) (quoting Dumas v. Schweiker,

712 F.2d 1545, 1552 (2d Cir. 1983)). Indeed, “[t]o be disabling, pain must be so severe, by

itself or in conjunction with other impairments, as to preclude any gainful employment.” Jd.

Thus, merely pointing to evidence that Plaintiff experienced pain as a result of her conditions is

| insufficient to establish disability, especially where Plaintiffs subjective complaints of pain

varied significantly over time. (See R. 357, 368, 373, 377, 390, 404, 444, 508, 537). Notably,

Plaintiff generally reported that her pain level was somewhere between two and four out of ten.

(See R. 357, 363, 390, 404). Plaintiff reported to Dr. Magurno that her pain “is better [when]

she sits and rests,” (R. 426), which is consistent with the ALJ’s RFC for sedentary work.

Accordingly, the ALJ did not violate the treating physician rule because his RFC determination

| was supported by substantial evidence, including Dr. Magurno’s opinion, the clinical findings

during that consultative examination, Plaintiffs treatment history, and her activities of daily

living.

2 The Commissioner’s regulations expressly identify “daily activities” as one factor the ALJ should consider in

evaluating the intensity and persistence of a claimant’s symptoms. See 20 C.F.R. § 416.929(c)(3)(); see also Rusin

v. Berryhill, 726 F. App’x 837, 840 (2d Cir. 2018) (severe limitations claimed by the plaintiff were inconsistent

with the plaintiff's report that he “cooked simple meals daily, left the house daily, can drive, and shopped for

groceries every two weeks”). Thus, the ALJ’s consideration of Plaintiffs activities of daily living was proper.

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While Plaintiff may disagree with the ALJ’s findings, the record shows factual support

for each one, and the ALJ had discretion to resolve conflicts in the record. See Veino v.

Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in the medical evidence are for

the Commissioner to resolve.”); Perozzi v. Berryhill, 287 F. Supp. 3d 471, 497 (S.D.N.Y. 2018)

(noting that ALJ has authority “to resolve conflicts in the record, including with reference to a

4| claimant’s reported activities of daily living”) (citing Domm v. Colvin, 579 F. App’x 27, 28 (2d

Cir. 2014)). In sum, the Court finds that the ALJ sufficiently accounted for Plaintiffs physical

limitations and developed a well-supported RFC based on substantial evidence.

IV. CONCLUSION

Although Plaintiff suffers from several serious ailments, it is not for the Court to

overturn the ALJ’s decision if that decision was supported by substantial evidence in the record.

Indeed, even “[w]here there is substantial evidence to support either position, the determination

is one to be made by the factfinder.” Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990).

After careful review of the record, the Court concludes that the ALJ applied the correct legal

standards and the decision is supported by substantial evidence.

For the foregoing reasons it is

ORDERED that the Commissioner’s decision is AFFIRMED; and it is further

ORDERED that the Clerk of the Court is directed to close this case and provide a copy

of this Memorandum-Decision and Order to the parties in accordance with the Local Rules of

the Northern District of New York.

IT IS SO ORDERED.

Date: September 6, 2019

Syracuse, New York HK,

Las A. Mordue

Senior U.S. District Judge

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