Poltz v. Saul

NORTHERN DISTRICT OF NEW YORK

______________________________________________________________________

JAMES P.,1

Plaintiff,

v.

3:18-CV-397(ATB)

NANCY A. BERRYHILL,2

Defendant.

______________________________________________________________________

HOWARD D. OLINSKY, ESQ., for Plaintiff

BENIL ABRAHAM, Special Asst. U.S. Attorney for Defendant

ANDREW T. BAXTER, U.S. Magistrate Judge

MEMORANDUM-DECISION and ORDER

This matter was referred to me, for all proceedings and entry of a final judgment,

pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in

accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.

Local Rule 73.1, and the consent of the parties. (Dkt. Nos. 4, 5).

I. PROCEDURAL HISTORY

Plaintiff filed an application for Disability Income Benefits (“DIB”) and

Supplemental Security Income (“SSI”), alleging disability beginning August 27, 2002.

1 In accordance with recent guidance from the Committee on Court Administration and

Case Management of the Judicial Conference of the United States, which was adopted by the

Northern District of New York in June 2018 in order to better protect personal and medical

information of non-governmental parties, this Memorandum-Decision and Order will identify the

plaintiff using only his first name and last initial.

2Andrew M. Saul became the Commissioner of Social Security on June 17, 2019. The

initially on January 30, 2015. (T. 103). Plaintiff requested a hearing, which was held by

video on May 31, 2017, before Administrative Law Judge (“ALJ”) Kenneth Theurer.

(T. 694-718). At the hearing, plaintiff amended his alleged onset date to May 13, 2015.

(T. 313, 696-97). The ALJ then heard testimony from plaintiff and Vocational Expert

(“VE”) Josiah Pearson. (T. 697-718).

In a decision dated July 10, 2017, the ALJ found that plaintiff was not disabled.

(T. 8-10). The ALJ’s decision became the Commissioner’s final decision when the

Appeals Council denied plaintiff’s request for review on February 2, 2018. (T. 1-4).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI

disability benefits must establish that 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 twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In

addition, the plaintiff’s

physical or mental impairment or impairments [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, regardless

of whether such work exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or whether he would be

hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

404.1520 and 416.920, to evaluate disability insurance and SSI 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 disabled without considering vocational

factors such as age, education, and work experience . . . . 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.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,

416.920. The plaintiff has the burden of establishing disability at the first four steps.

However, if the plaintiff establishes that his impairment prevents him from performing

his past work, the burden then shifts to the Commissioner to prove the final step. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine

whether the correct legal standards were applied and whether substantial evidence

supported the decision. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Brault v.

Soc. Sec. Admin, Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.

2012). It must be “more than a scintilla” of evidence scattered throughout the

review “ – even more so than the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.

“To determine on appeal whether an ALJ’s findings are supported by substantial

evidence, a reviewing court considers the whole record, examining the evidence from

both sides, because an analysis of the substantiality of the evidence must also include

that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859

F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its

interpretation of the administrative record for that of the Commissioner, if the record

contains substantial support for the ALJ’s decision. Id. See also Rutherford v.

Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

An ALJ is not required to explicitly analyze every piece of conflicting evidence

in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles

v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (“...we are unwilling to require an ALJ

explicitly to reconcile every conflicting shred of medical testimony...”). However, the

ALJ cannot “‘pick and choose’ evidence in the record that supports his conclusions.”

Cruz v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.

09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).

III. FACTS

As of the date of the administrative hearing, plaintiff was fifty-two years old. (T.

187). He resided in a one-story home with his two dogs. (T. 700-01). Plaintiff had a

license and could drive, however he did not own a vehicle. (T. 700). He was a high

school graduate. (T. 701).

him to working four hours a day, with no continuous sitting or standing, and no

repetitive bending. (T. 711). Since then, plaintiff has worked part-time at various auto

part stores. (T. 702). At the time of the hearing, he was working approximately 4-5½

hours a day, five days a week. (T. 702-03). After four hours of work, plaintiff felt

“quite sore.” (T. 707). Plaintiff’s employer provided him with a seat at the counter

where he worked, so that plaintiff could alternate between sitting and standing in order

to remain comfortable. (T. 708). He also had access to an aerobic mat, to stretch as

needed. (T. 709).

Plaintiff testified that his low back pain prevented him from working full-time.

(T. 703). He had not seen his orthopedist in the approximately seven years prior to the

hearing, but was treating with his primary care physician. (T. 703-04). Plaintiff

testified he was too young to have back surgery. (T. 709). He took various

medications to address his pain, and he applied ice and heat every day after work. (T.

704-05, 710). He also utilized an inversion table and ultrasound unit. (T. 710-11).

Plaintiff could attend to his activities of daily living (“ADLs”), including

dressing, showering, and bathing. (T. 705). He also cooked for himself, shopped for

limited periods of time, and managed his own finances. (T. 705-06). Plaintiff took his

dogs to a nearby off-leash park for exercise. (T. 706).

IV. THE ALJ’S DECISION

The ALJ first found that plaintiff met the insured status requirement through

December 31, 2018. (T. 13). The ALJ then determined that plaintiff had not engaged

At step two of the sequential analysis, the ALJ found that plaintiff had a severe

impairment, namely a disorder of the back, that significantly limited his ability to

perform basic work activities as required by SSRs 85-28 and 96-3p. (T. 14). The ALJ

also found that plaintiff did not have an impairment or combination of impairments that

met or medically equaled the severity of a Listed Impairment at step three of the

sequential analysis. (Id.). In making this decision, the ALJ considered Listing 1.04

(Disorders of the Spine). (Id.).

The ALJ then found that plaintiff had the residual functional capacity to perform

less than light work, because

while he can occasionally lift and carry twenty pounds, frequently lift and

carry ten pounds, sit for up to six hours and stand or walk for approximately

six hours in an eight hour day with normal breaks, he can only occasionally

climb ramps or stairs, occasionally climb ladders and never climb ropes or

scaffolding. The claimant can occasionally balance, stoop, kneel, crouch

and crawl. The claimant will need to alternate three times per hour from a

seated to a standing position or vice versa for five minutes while remaining

on task.

(Id.). In making this RFC determination, the ALJ stated that he considered all of the

plaintiff’s symptoms, and the extent to which those symptoms could “reasonably be

accepted as consistent with the objective medical evidence and other evidence,” based

on the requirements of 20 C.F.R. §§ 404.1529 and 416.929. (Id.). Finally, the ALJ

stated that he considered opinion evidence in accordance with the requirements of 20

C.F.R. §§ 404.1527 and 416.927. (Id.).

The ALJ also found that plaintiff’s medically determinable impairments could

statements as to the intensity, persistence and limiting effects of those symptoms were

not “entirely consistent with the medical evidence and other evidence in the record.”

(T. 15). The ALJ stated that his residual functional capacity assessment was supported

by the opinion of the consultative examiner, the objective medical evidence of record,

and plaintiff’s ADLs. (T. 17).

After considering the evidence and plaintiff’s RFC, the ALJ found at step four

that plaintiff had no past relevant work. (Id.). The ALJ then turned to step five of the

sequential analysis. The ALJ acknowledged that the plaintiff’s ability to perform

unskilled light work had been compromised by additional limitations. (T. 17-18). To

determine the extent to which these limitations eroded the unskilled light occupation

base, the ALJ considered the testimony from the VE. (T. 18, 712-17). Based on the

ALJ’s initial hypothetical, the VE testified that there were several jobs that existed in

significant numbers which could be performed by a person of plaintiff’s age, education

and vocational background. (T. 18). The VE further testified that the sit-stand option

set forth by the ALJ eroded the number of jobs in each category between 25-75%,

however the ALJ found that the remaining number of jobs still constituted significant

numbers in the national economy. (Id.). Thus, the ALJ found that plaintiff was not

disabled. (Id.).

V. ISSUES IN CONTENTION

Plaintiff argues that the ALJ’s RFC determination is “unsupported by substantial

evidence and is the product of legal error[,]” insomuch as the ALJ failed to properly

opinion” of the consultative examiner. (Plaintiff’s Brief (“Pl.’s Br.”) at 1; Dkt. No. 14).

Defendant argues that the ALJ’s RFC determination is supported by substantial

evidence. (Defendant’s Brief (“Def.’s Br.”) at 4-12; Dkt. No. 17). For the following

reasons, the court agrees that substantial evidence supports the RFC for light work as

modified by the ALJ.

VI. RFC/WEIGHING EVIDENCE/TREATING PHYSICIAN

A. Legal Standards

1. RFC

RFC is “what [the] individual can still do despite his or her limitations.

Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work

activities in an ordinary work setting on a regular and continuing basis. . . .” A “regular

and continuing basis” means eight hours a day, for five days a week, or an equivalent

work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2

(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)

(quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v. Berryhill, No. 5:17-CV-

00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018); Tankisi v.

Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.

Supp. 3d 349, 361 (N.D.N.Y. 2016).

In rendering an RFC determination, the ALJ must consider objective medical

facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s

subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R.

(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.

Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL 587459, at *8 (N.D.N.Y. Feb 13, 2019);

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An ALJ must specify the functions

plaintiff is capable of performing, and may not simply make conclusory statements

regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241, 267

(N.D.N.Y. 2010); Martone v. Apfel, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler,

728 F.2d 582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183, Stephens v.

Colvin, 200 F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v. Comm’r of Soc. Sec.,

307 F. Supp. 2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must also include a

narrative discussion, describing how the evidence supports the ALJ’s conclusions,

citing specific medical facts, and non-medical evidence. Natashia R. v. Berryhill, No.

3:17-CV-01266 (TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing

SSR 96-8p, 1996 WL 374184, at *7).

2. Weighing Evidence/Treating Physician

In making a determination, the ALJ weighs all the evidence of record and

carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL

374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues

are not “medical issues,” but are “administrative findings.” The responsibility for

determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL

374183, at *2. These issues include whether the plaintiff’s impairments meet or equal

a listed impairment; the plaintiff’s RFC; how the vocational factors apply; and whether

In evaluating medical opinions on issues that are reserved to the Commissioner,

the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The

ALJ must clearly state the legal rules that he applies and the weight that he accords the

evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL 3776382, at *2

(S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324, 2012 WL

3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).

“Although the treating physician rule generally requires deference to the medical

opinion of a claimant’s treating physician, . . . the opinion of the treating physician is

not afforded controlling weight where . . . the treating physician issued opinions that

are not consistent with other substantial evidence in the record . . . .” Halloran v.

Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Veino v. Barnhart, 312 F.3d 578, 588 (2d

Cir. 2002); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If an ALJ decides not to give

the treating source’s records controlling weight, then he must explicitly consider the

four Burgess factors: “(1) the frequen[cy], 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 the physician is a

specialist.” Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019) (quoting Burgess v.

Astrue, 537 F. 3d 117, 120 (2d Cir. 2008)). Should an ALJ assign less than controlling

weight to a treating physician’s opinion and fail to consider the above-mentioned

factors, this is a procedural error. Id. at 96. It is impossible to conclude that the error is

harmless unless a “searching review of the record . . . assures us that the substance of

B. Analysis

Plaintiff argues that the ALJ misapplied the treating physician rule by failing to

give controlling weight to Dr. Rule’s opinions. (Plt.’s Br. at 10). The plaintiff further

argues that the ALJ’s RFC is not otherwise supported by substantial evidence;

notwithstanding Dr. Jenouri’s “vague” opinion, to which the ALJ afforded “great

weight.” (Id. at 10-11). The Commissioner contends that the ALJ properly relied on

Dr. Jenouri’s opinion, as it was consistent with other evidence of record and supported

an RFC for light work. (Def.’s Br. at 6-7).

The administrative record contains no formal opinions from a treating physician

regarding plaintiff’s functional limitations. It does, however, contain a plethora of

treatment notes from plaintiff’s neurosurgeon, primary care providers, and pain

management team.3 With respect to his back injury, plaintiff sought treatment from

neurosurgeon Khalid Sethi, M.D. in 2008. (T. 370-71). Dr. Sethi diagnosed plaintiff

with discogenic mechanical low back pain, noting that plaintiff presented with “fairly

good strength throughout . . . [and] no evidence of ongoing radiculopathy, cauda

equina or conus symptomatology.” (T. 367). He further opined that plaintiff “really

[didn’t] have any focal myotomal weakness.” (Id.). Plaintiff went on to pursue

conservative treatment with Dr. Sethi, including medical pain management and the use

of an inversion table. (T. 364-66). In 2010, Dr. Sethi determined that plaintiff was not

a surgical candidate. (T. 363). On January 20, 2011, Dr. Sethi examined plaintiff to

3The majority of the treatment notes of record predate plaintiff’s alleged onset date, May

13, 2015, by several years.

down the left lower extremity. (T. 362). Plaintiff was noted to be tight on straight leg

raise at 30 degrees, with “good strength in plantar flexion, EHL, anterior tibialis,

quadriceps, and hamstrings.” (Id.). Dr. Sethi noted a “blunting sensation” in the S1

dermatome. (Id.). Lumbar MRI findings noted degenerative disc disease at L4-5 and 5-

1. (T. 361). It does not appear that plaintiff treated with Dr. Sethi after 2011. Plaintiff

did seek treatment with pain management between 2011 and 2013, along with physical

therapy in 2012. (T. 493-501, 543-96, 597, 598-655).

In 2013, plaintiff established primary care at Bassett Medical Center (“BMC”).

(T. 488). Plaintiff treated almost exclusively with nurse practitioner (“NP”) Kenneth

Demott, who saw plaintiff every three to six months for “workers’ compensation

visits.” (T. 486, 488, 507, 509, 658, 662, 677, 682, 686, 691). Several workers’

compensation forms were prepared contemporaneously with plaintiff’s visits, assigning

various4 degrees of temporary impairment and work restrictions. The forms were co-

signed by NP Demott and a “board authorized health care provider,” namely physician

Carlton Rule, M.D. or Aaron Harrison, D.O. The forms lack any opinion regarding

plaintiff’s functional limitations. (T. 657, 661, 665, 676, 681, 685, 690).

Despite plaintiff’s contention to the contrary, Dr. Rule was not a treating

4See T. 656-67 (1/9/15 - percentage of temporary impairment “partial per neurosurgeon”);

T. 660-61 (4/10/15 - percentage of temporary impairment 30% “per chart review from

neurosurgery”); T. 664-65 (7/23/15 - percentage of temporary impairment 50%); T. 675-76

(3/4/16 - indicating plaintiff was 100% temporarily impaired); T. 680-81 (6/10/16 - percentage of

temporary impairment 30% “per neurosurgery”); T. 684-85 (9/12/16 - percentage of temporary

impairment 30%); T. 689-90 (1/30/17 - declining to assign any percentage of temporary

impairment to plaintiff).

explained that the ALJ gives a treating physician controlling weight because of the

“continuity of treatment he provides and the doctor/patient relationship he develops[.]”

Weathers v. Colvin, No. 3:15-CV-575 (FJS), 2017 WL 177649, at *5 (N.D.N.Y. Jan.

17, 2017) (citing Mongeur v. Heckler, 722 F.2d at1039 n.2). “Across multiple districts

in this Circuit, courts have consistently held that a physician who examines a patient

1–3 times during a limited period does not typically have the kind of relationship that

qualifies as a treating physician relationship for the purposes of the social security

regulations.” Pritchett v. Berryhill, No. 17-CV-719, 2018 WL 3045096, at *5

(W.D.N.Y. June 20, 2018) (listing cases).

In this case, Dr. Rule performed one examination of plaintiff over the course of

three years. On July 27, 2015, Dr. Rule saw plaintiff for a “Workman’s Comp [sic]

issue.” (T. 666). Upon examination, he noted that plaintiff exhibited tenderness in his

low back “around L2-3 bilaterally.” (Id.). Dr. Rule further noted that plaintiff

displayed normal reflexes and coordination, with abnormal muscle tone and “some

apparent weakness in the left lower leg.” (Id.). Dr. Rule ordered a follow up MRI and

opined that plaintiff “should reduce work hours to 4 hours per day until seen again.”

(T. 666-68). Plaintiff was not seen again until March 4, 2016, when he met with NP

Demott “for [a] Worker’s Compensation visit.” (T. 677). Dr. Rule did not otherwise

examine plaintiff through the date of the ALJ’s July 10, 2017 opinion.

In addition to his limited treatment relationship with plaintiff, Dr. Rule failed to

provide any opinion assessing plaintiff’s functional limitations, or how his limitations

by plaintiff in his brief are limited to the forms co-signed5 by Dr. Rule as an authorized

physician in the context of the workers’ compensation claim system. (T. 656-57, 661-

62, 664-65, 675-76, 680-81). Upon analyzing these opinions, the ALJ afforded them

“little weight,” noting that they assigned degrees of disability without providing

functional limitations. (T. 17). Moreover, in assigning Dr. Rule’s opinions limited

weight, the ALJ properly considered that they were based on workers’ compensation

standards, and “speak to an issue which is reserved for the Commissioner of Social

Security.” See Ackley v. Colvin, No. 13-CV-6656, 2015 WL 1915133, at *5 (W.D.N.Y.

Apr. 27, 2015) (citing Crowe v. Comm’r, No. 6:01-CV-1579 (GLS), 2004 WL

1689758, at *3 (N.D.N.Y. 2004) (ALJ not required to adopt treating physician’s

opinion that plaintiff was “totally” disabled where opinion was rendered in worker’s

compensation claim context)); see also Lefever v. Astrue, No. 5:07–CV–622

(NAM/DEP), 2010 WL 3909487 at *13 (N.D.N.Y. Sept. 30, 2010) (“Workers’

compensation determinations are directed to the workers’ prior employment and

measure the ability to perform that employment rather than using the definition of

disability in the Social Security Act. Because disability for purposes of workers’

compensation benefits is determined under a different standard than the standard used

in the Social Security context, the ALJ is not bound to afford [the treating physician’s]

finding controlling weight.”), aff’d, 443 Fed. App’x 608 (2d Cir. 2011). Thus, the ALJ

did not err in declining to afford Dr. Rule’s opinions controlling weight, as they were

5It is unclear who actually prepared the workers compensation forms, as they bear both

Dr. Rule and NP Demott’s signatures.

relationship with the plaintiff.

If the opinion of a treating physician is either absent or deemed not controlling,

the ALJ must weigh all the medical and other evidence in the record. See 20 C.F.R.

§§ 404.1545(a)(3), 416.945(a)(3). Here, the record contains a January 16, 2015

opinion prepared by consultative examiner Gilbert Jenouri, M.D. (T. 513-16). Upon

physical examination, Dr. Jenouri noted that plaintiff appeared to be in no acute

distress, with a normal gait and stance. (T. 514). Plaintiff was able to change for the

exam, get on and off the table, and rise from his chair without difficulty. (Id.). Dr.

Jenouri further noted that plaintiff’s squat was “only 50% of full,” and he was unable to

walk on his toes without difficulty. (Id.). Plaintiff displayed full range of motion in his

cervical spine, knees, ankles, shoulders, elbows, forearms and wrists. (T. 514-15).

With respect to his lumbar spine, plaintiff showed “extension 10 degrees, flexion 30

degrees, lateral flexion 25 degrees bilaterally, and rotary movement 25 degrees

bilaterally.” (T. 514-15). Dr. Jenouri noted a positive straight leg raise test on the left.

(T. 515). Plaintiff exhibited full strength in his upper and lower extremities. (Id.).

In addition to the physical examination, Dr. Jenouri reviewed an x-ray report of

plaintiff’s lumbar spine, noting an old compression fracture and degenerative changes.

(Id.). Based on his physical examination and record review, Dr. Jenouri opined that

plaintiff had a “mild restriction for walking, standing, and sitting for long periods,

bending, climbing, lifting and carrying.” (Id.).

The ALJ considered Dr. Jenouri’s opinion at length. (T. 16). Based on Dr.

opinion’s consistency with the record as a whole, the ALJ afforded it “great weight.”

(T. 16).

Plaintiff contends that Dr. Jenouri’s opinion does not provide substantial

evidence supporting the ALJ’s determination, because it is impermissibly vague.

(Plt.’s Br. at 10). “To be sure, a consultative examiner’s report which concludes that a

plaintiff’s condition is “mild” or “moderate,” without additional information, does not

allow an ALJ to infer that a plaintiff is capable of performing the exertional

requirements of work.” Pealo v. Comm’r of Soc. Sec., No. 3:17-CV-0149 (GTS/WBC),

2017 WL 5891772, at *5 (N.D.N.Y. Oct. 30, 2017); see Curry v. Apfel, 209 F.3d 117,

123 (2d Cir. 2000) (The consultative examiner’s “use of the terms ‘moderate’ and

‘mild,’ without additional information, does not permit the ALJ, a layperson

notwithstanding her considerable and constant exposure to medical evidence, to make

the necessary inference that [the plaintiff] can perform the exertional requirements of

sedentary work.”), superceded by regulation on other grounds by, 20 C.F.R. §

404.1560(c)(2)); see also Bartrum v. Astrue, 32 F. Supp. 3d 320, 331 (N.D.N.Y. 2012).

However, the courts in this district have consistently held that a consultative

examiner’s opinion which utilizes such vague terminology may not be rendered

useless, where the conclusion is “well supported by [the examiner’s] extensive

examination[,]” or where the vague language may be rendered “more concrete” by the

facts in the underlying opinion and other opinion evidence in the record. Pealo, 2017

WL 5891772, at *3-4 (other citations omitted); see also Genito v. Comm’r of Soc. Sec.,

Admittedly, Dr. Jenouri’s opinion is vague to the extent it qualifies plaintiff’s

limitations as “mild.” (T. 515). Nevertheless, Dr. Jenouri’s findings regarding

plaintiff’s functional restrictions are“well supported by [his] extensive examination[,]”

as previously set forth. Waldau v. Astrue, No. 5:11-CV-925 (GLS), 2012 WL

6681262, at *4 (N.D.N.Y. Dec. 21, 2012) (citing Armstrong v. Commissioner of Soc.

Sec., No. 05-CV-1285 (GLS/DRH), 2008 WL 2224943, at *4, n. 6 (N.D.N.Y. May 27,

2008)).

Moreover, the record as a whole, including treatment records, radiology reports,

and plaintiff’s activities of daily living, lend further credibility to Dr. Jenouri’s opinion

and provide substantial evidence supporting the ALJ’s RFC determination. See Pealo,

2017 WL 5891772 at *5 (citing Davis v. Massanari, No. 00-CV-4330, 2001 WL

1524495, at *8 (S.D.N.Y. Nov. 29, 2001) (a consultative examiner’s opinion was not

too vague where “the facts underlying that opinion and the other medical opinions in

the record lend it a more concrete meaning”); Colvin v. Comm’r of Soc. Sec., No. 3:15-

CV-1033 (GTS/WBC), 2017 WL 9487187, at *8 (N.D.N.Y. Feb. 27, 2017) (ALJ

determination that plaintiff retained the RFC to perform light work was supported by

substantial evidence in the record, including consultative examination opinion that

plaintiff had mild to moderate limitations for sitting, standing and walking;

unremarkable treatment records; and plaintiff’s testimony regarding his activities of

daily living).

The objective medical evidence of record from the relevant time period, when

respect to plaintiff’s lower back. Although plaintiff exhibited tenderness to his lower

back upon examination (T. 488, 507, 509, 662, 666, 682), he appeared to be in no

apparent distress, with normal gait and range of motion. (T. 486, 508, 512, 658, 662,

678). Dr. Rule indicated that, during the one examination he performed, plaintiff

exhibited abnormal muscle tone with “some apparent weakness in the left lower leg,”

however he displayed normal reflexes and coordination. (T. 666). Otherwise, the

results of plaintiff’s September 15, 2015 MRI scan ordered by Dr. Rule indicated

“multilevel spondylosis . . . contribut[ing] to multilevel neural foraminal stenosis at

T11-12 and from L2-L3 through L5-S1 which is likely greatest in degree at the L4-L5

level where it is mild in degree bilaterally. There is no definite significant central

spinal stenosis in the lumbar spine.” (T. 672-74) (emphasis added). These objective

medical findings align with Dr. Jenouri’s opinion for “mild limitations,” and do not

contradict the ALJ’s ultimate determination that plaintiff could perform light work as

modified.

The ALJ properly took plaintiff’s subjective complaints and testimony into

consideration in forming his RFC. In particular, the ALJ considered plaintiff’s

representation that he could not sit or stand for more than 20 to 30 minutes at a time.

(T. 276-77). In conjunction with the mild limitations opined by Dr. Jenouri, in the

ALJ determined that plaintiff could sit for up to six hours in an eight-hour day and

stand for up to six hours in an eight-hour day, provided he is given the opportunity to

alternate three times per hour from a seated to standing position for five minutes, while

as it was supported by medical opinions, treatment records, and the testimony of the

plaintiff. Palistrant v. Comm’r of Soc. Sec., No. 16-CV-588, 2018 WL 4681622

(W.D.N.Y. Sept. 28, 2018) (holding that claimant’s testimony that he had to alternate

between sitting and standing every 20-30 minutes and general treatment notes about

sitting and standing limitations supported RFC that the claimant be able to alternate

between sitting and standing every half hour); Bryant v. Berryhill, No. 16-CV-6103,

2017 WL 2334890, at *4 (W.D.N.Y. May 30, 2017) (holding that “several references in

the record,” including the claimant’s conflicting reports about the length of time he

could sit or stand—some indicating 10 to 15 minutes at a time and others indicating 30

minutes at a time—allowed the ALJ to “reasonably conclude[ ] that [claimant] could sit

for 30 minutes and stand for 15 minutes”).

In addition to the objective medical evidence and plaintiff’s subjective

complaints, the ALJ considered plaintiff’s ADLs. The ALJ’s RFC determination was

consistent with plaintiff’s ADLs, considering that plaintiff cooked everyday, cleaned

three times per week, did laundry twice a week and shopped when needed. (T. 16).

Plaintiff retained the ability to socialize with friends, perform minor household repairs,

operate a tractor for plowing and mowing, and take his two large dogs to the dog park

every day. (T. 16, 274-75). The ALJ properly relied on plaintiff’s activities as a factor

in his overall evaluation of the medical opinion evidence and in formulating plaintiff’s

RFC. See Cummings v. Comm. of Soc. Sec., No. 3:17-CV-0631 (WBC), 2018 WL

2209204, at *8 (N.D.N.Y. May 14, 2018) (citing Krull v. Colvin, 669 Fed. App’x 31,

caring for grandchildren and ability to use a computer, in assessing plaintiff’s mental

RFC)); see also Cichocki v. Astrue, 729 F.3d 172, 178 (2d Cir. 2013) (ALJ properly

considered the plaintiff’s varied daily activities in formulating the RFC).

Ultimately, Dr. Jenouri’s assessment of “mild limitations” in plaintiff’s ability to

sit, stand and walk for long periods is consistent with an RFC for light work. Lewis v.

Colvin, 548 F. App’x 675, 677–78 (2d Cir. 2013) (“[T]he ALJ’s determination that

[plaintiff] could perform ‘light work’ is supported by [the consulting physician’s]

assessment of mild limitations for prolonged sitting, standing and walking, and

direction that [plaintiff] should avoid heavy lifting and carrying.”). Although some

evidence in the record might support the conclusion that plaintiff had greater

limitations than those the ALJ incorporated into his RFC determination, that is not the

test. If, as is the case here, “the reviewing court finds substantial evidence to support

the Commissioner’s final decision, that decision must be upheld, even if substantial

evidence supporting the claimant’s position also exists.” Rivera v. Comm’r of Soc.

Sec., 368 F. Supp. 3d 626, 649 (S.D.N.Y. Mar. 15, 2019) (citing Johnson v. Astrue, 563

F. Supp. 2d 444, 454 (S.D.N.Y. 2008)). In sum, the ALJ applied the correct legal

standards and marshaled substantial evidence to conclude that plaintiff could perform a

modified range of light work.

WHEREFORE, based on the above, it is

ORDERED, that the Commissioner's decision is AFFIRMED and the

complaint is DISMISSED, and it is

ORDERED, that judgment be entered for DEFENDANT.

Dated: January 13, 2020 f. L 0

Hon. Andrew T. Baxter

U.S. Magistrate Judge

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