“. . .we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony. . .”
How later courts described this case
- “. . .we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony. . .”
- ALJ properly considered the plaintiff's varied daily activities in formulating the RFC
Written by the judges who cited it.
The opinion
NORTHERN DISTRICT OF NEW YORK
______________________________________________________________________
CASSANDRA H.,1
Plaintiff,
v.
8:19-CV-226(ATB)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________________________________________
MARK A SCHNEIDER, ESQ., for Plaintiff
EMILY M. FISHMAN, 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 Title II Disability Benefits and an application for
Supplemental Security Income (“SSI”) on March 22, 2016,2 alleging disability
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.
2 The applications are dated April 22, 2016, and there is no indication that plaintiff filed
“protectively” prior to April 22, 2016. (See T. 254). However, the “Disability Determination
Explanation,” attached to the initial denial states that the applications were filed on March 22, 2016.
applications were denied initially on June 9, 2016. (T. 100, 101). Plaintiff requested a
hearing, which was held on May 30, 2018, before Administrative Law Judge (“ALJ”)
Brian LeCours. (T. 48-77). In a decision dated June 19, 2018, the ALJ found that
plaintiff was not disabled. (T. 33-41). The ALJ’s decision became the Commissioner’s
final decision when the Appeals Council denied plaintiff’s request for review on
January 18, 2019. (T. 1-5).
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).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections
33). The discrepancy is irrelevant to this court’s decision.
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
administrative record. Id. However, this standard is a very deferential standard of
“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
Plaintiff was 29 years old at the time of the ALJ’s hearing. (T. 53). She lived in a
home with her husband, two of her children, and “every other day, two of [her]
husband’s children.” (T. 52). The children were ages six, nine, sixteen, and eighteen.
(T. 53). Plaintiff graduated from high school and started her first semester of college in
2007, but had to quit school because she “lost” her transportation. (Id.) Plaintiff
date. (T. 54). She worked for two years in that position, but stopped working in
December of 2016 because she could no longer perform the functions required of the
job and needed too many people to help her lift, carry, and clean. (T. 54-55). The
waitress/bartender position required plaintiff to lift up to 50 pounds, and she testified
that she could not lift that much even when she started the job. (T. 55). Plaintiff also
testified that she worked full-time at ARC during 2014 and part of 2015.3 (Id.)
Plaintiff’s duties included lifting patients and moving them from their beds to
wheelchairs.4 (T. 56).
Plaintiff testified that she could not work because she could not be “around
anybody with any kind of smell on them, like perfume, or smoke, or pollen, or dust.”
(Id.) These respiratory irritants “upset[]” her sinuses, causing her to blow her nose
frequently, sneeze, or cough, making her “look very ill.” (Id.) Plaintiff stated that she
had to use her nebulizer very frequently. (Id.) She testified that morning was the most
difficult time for her, when her breathing was “at its lowest.” (T. 57). She had to “be on
[her] nebulizer frequently in the morning” and could not lift or bend over because her
sinuses were draining. (Id.)
During the day, plaintiff stated that she had to sit down, rest, and change her
positions “very frequently.” (Id.) She stated that she could not keep her windows open
and could not go outside without “having to be on [her] nebulizer or [her] inhaler.” (T.
3 The ARC job overlapped with plaintiff’s waitress job, and at one time, she was working two
jobs. (T. 55-56).
4 Plaintiff testified that she used a Hoyer Lift to assist her in this duty. (T. 56).
her breathing, and that she had been coughing “nonstop” since she walked into the
building. (Id.) Plaintiff tried to stay indoors as much as she could, but she did have to
open the door occasionally to let her dogs in and out. (Id.) The pollen and dust in her
driveway caused exacerbation of her allergies. (Id.)
Plaintiff testified that, when she was working, she would try to work as little in
the afternoon as possible - “five, six hours.” (T. 58). Plaintiff stated that she had to use
her nebulizer, and she would “go through tissues [and] toilet paper” very frequently.
(Id.) Plaintiff testified that her husband, or one of the other family members, did the
grocery shopping so that she did not have to go out. (T. 60). Plaintiff stated that, if she
did go shopping, she would have a “set list,” and she would always take her nebulizer
or her inhaler in her pocket. (Id.)
Plaintiff stated that doing the laundry was difficult for her, and that she usually
had her husband or her children do it, under her supervision. (T. 61). She could stand
and fold the laundry for a short time, but had to have the children lift and carry the
basket. (Id.) She did minimal household chores, and she had to leave the house when
the vacuum was running because of the dust. She did not have rugs in the house, but
“[i]t’s constant sweeping and vacuuming [] because we have two dogs and four children
in and out of the house all the time.” (Id.) She could not use any cleaning chemicals.
(Id.) Plaintiff then stated that she also wore a dust mask for twenty or thirty minutes
after any cleaning was done in the house, and that she had sheets over the furniture. (T.
62). The dogs were not allowed on the furniture or in her bedroom. (Id.)
house. (T. 65). However, plaintiff stayed on the “mid-floor” of her home, and she could
not carry anything up the stairs. (T. 66). Plaintiff stated that she only went up or down
the stairs once or twice per day, otherwise, she would have to use her nebulizer or her
inhaler. She stated that when she came to the hearing, she had to stop and catch her
breath at the elevators. (Id.) Plaintiff also testified that she home-schooled her children
because of the “school bugs” that they might bring home. (T. 68).
The ALJ also heard the testimony of VE Margaret Heck. (T. 71-76). The ALJ
asked VE Heck to assume that a hypothetical individual had the ability to perform a
range of light work, had the ability to occasionally operate “adult”5 controls,6 had the
ability to stoop, kneel, crouch, crawl, and climb ropes and stairs. (T. 71-72). The
individual would never be able to climb ladders, ropes, or scaffolds. (T. 72). She also
“must avoid concentrated exposure to extremes of heat, cold, humidity, and wetness,”
and “must avoid concentrated exposure to pulmonary irritants, such as fumes, odors,
dust, and gases.” (Id.)
Based on the stated RFC, the VE testified that plaintiff could not perform her
former work because her former work was in the medium exertional category. (T. 72).
The VE determined that plaintiff could perform other work in the national economy, in
the light and sedentary categories. (T. 72-74). These jobs included counter attendant,
5 The transcript notes that “adult” controls was “[phonetic].” (T. 71). The ALJ’s decision
corrects this error in the transcript. (T. 36). Plaintiff’s RFC, as stated by the ALJ in his decision,
includes the ability to “occasionally operate pedal controls . . . .” (Id.)
6 This was a “bilateral limitation.” (T. 71).
However, if plaintiff would likely be “off-task” for 20 percent of the workday due to
symptoms and/or the need for unscheduled breaks, that would “preclude all competitive
employment” because employers will only tolerate an employee being off-task between
10 and 15 percent of the time. (T. 74).
The ALJ then asked the VE to discuss the limitation to “concentrated” exposure
to extremes of temperature and pulmonary irritants. (T. 75). The ALJ asked whether
“the jobs [the VE] cited . . . have any exposure to those things?” (Id.) The VE
responded “[w]ell, I was looking for clean environments.” (Id.) The VE stated that
“[t]he only one question for that might be the hostess, because [plaintiff] says that . . .
it’s the smell in a restaurant that sets her off, and so –” (Id.) All the other jobs were
“‘clean environments,’ to use your term.” (Id.)
The plaintiff and the ALJ engaged in a detailed statement of the relevant medical
facts in this case. (Pl.’s Br. at 2-15 (Dkt. No. 11); T. 37-39). Rather than reciting this
evidence at the outset, I will discuss the relevant details below, as necessary to address
the issues raised by plaintiff, and with any changes or modifications noted in my
decision.
IV. ALJ’s DECISION
After finding that plaintiff met her insured status requirements through
September 30, 2018, the ALJ found that plaintiff had not engaged in substantial gainful
activity (“SGA”) from her alleged onset date of March 22, 2016. (T. 35). Although
plaintiff worked after her onset date, the ALJ found that her work activity –
At step two of the sequential evaluation, the ALJ found that plaintiff’s asthma,
rhinitis/sinusitis, degenerative disc disease, and left shoulder impairment were “severe.”
(T. 36). To the extent that the record showed some “mental health problems associated
with an affective disorder,” the ALJ found these impairments not severe. (Id.) At step
three of the evaluation, the ALJ found that plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of a listed
impairment. (Id.)
At step four, the ALJ found that plaintiff had the RFC to perform light work,
except that plaintiff could only occasionally operate “pedal” controls (a bilateral
limitation); occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs. (T.
36). Plaintiff could never climb ladders, ropes, or scaffolds. Plaintiff should also avoid
concentrated exposure to extremes of heat and cold and pulmonary irritants such as
fumes, odors, dust, and gases. (Id.) In making this determination, the ALJ considered
the medical and other evidence of record, indicating the weight that he afforded the
treating and consulting physicians. (T. 37-39). The ALJ also considered plaintiff’s
activities during the period in question, including her activities during the time that she
engaged in work below the SGA level. (T. 39).
The ALJ also found that, based on the above limitations, plaintiff could not
perform her past relevant work (“PRW”) because the demands of her PRW exceeded
plaintiff’s RFC. (T. 40). The ALJ then considered plaintiff’s age, education, and
transferability of job skills. (T. 40). The ALJ determined that if plaintiff could perform
Subpt. P, App. 2 would dictate a finding of “not disabled.” (Id.) However, the ALJ
found that plaintiff’s ability to perform the full-range of light work was “impeded by
additional limitations.” To determine the extent that the plaintiff’s additional
limitations eroded the light, unskilled, occupational base, the ALJ relied on the
testimony of VE Heck. Based on VE Heck’s testimony, the ALJ found that,
notwithstanding plaintiff’s additional limitations, she would be able to perform the
representative light occupations of office helper, hostess, counter attendant, and hotel
greeter. (T. 41). The VE also found that plaintiff could perform the representative
sedentary occupations of surveillance system monitor, a call out operator, and a
telephone solicitor. (Id.) The ALJ, therefore, found that plaintiff was not disabled.
V. ISSUES IN CONTENTION
Plaintiff raises the following arguments:
1. Plaintiff did not receive effective representation from her non-attorney
representative, and the ALJ failed to fully develop the record. (Pl.’s Br. at
17-19).
2. The ALJ erred in failing to give proper weight to the plaintiff’s treating
sources and in failing to credit the opinion of his own consultants. (Pl.’s
Br. at 20-23).
3. Plaintiff does not have the RFC to perform light work, and she is disabled
based on the combination of her impairments. (Pl.’s Br. at 23-29).
4. The ALJ erred as a matter of law in rejecting plaintiff’s credibility. (Pl.’s
Br. at 29-35).
5. Dr. Wassef’s opinion does not support a conclusion that plaintiff can
perform either light or sedentary work. (Pl.’s Br. at 35-36).
substantial number of jobs that plaintiff can perform. (Pl.’s Br. at 36-37).
Defendant argues that the Commissioner’s decision should be affirmed because it
is supported by substantial evidence and was based upon the correct application of legal
principles. (Def.’s Br.) (Dkt. No. 12).
VI. Duty to Develop Record/Non-Attorney Representative: (Plaintiff’s Point I)
A. Legal Standards
Because of the non-adversarial nature of a Social Security action, the ALJ has the
duty to affirmatively develop the record. Keys v. Berryhill, No. 1:16-CV-00448, 2017
WL 4324689, at *2 (W.D.N.Y. Sept. 29, 2017) (quoting Pratts v. Chater, 94 F.3d 34,
37 (2d Cir. 1996) (quoting Echevarria v. Sec’y of Health & Human Servs., 685 F.2d
751, 755 (2d Cir. 1982)). In Cruz v. Sullivan, 912 F.2d 8 (2d Cir. 1990), the Second
Circuit held that, in connection with the duty to develop the record, “when the ALJ
rejects the findings of a treating physician because they were conclusory or not
supported by specific clinical findings, he should direct a pro se claimant to obtain a
more detailed statement from the treating physician.” Id. at 12. The ALJ’s duty to
develop the record applies to both pro se and represented parties, and is heightened in
the case of pro se plaintiffs.” Lopez v. Comm’r of Soc. Sec., No. 17-CV-1504, 2018 WL
5634929, at *5, 2018 U.S. Dist. LEXIS 186600, at *11 (E.D.N.Y. Oct. 31, 2018).
However, “[w]here there are no obvious gaps in the administrative record, and where
the ALJ already possesses a ‘complete medical history,’ the ALJ is under no obligation
to seek additional information in advance of rejecting a benefits claim.” Rosa v.
Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 (2d
B. Application
In this case, plaintiff is now represented by counsel, who argues that Kimberly
Wills, plaintiff’s non-attorney representative at the ALJ hearing, was ineffective. In
addition, plaintiff argues that because plaintiff’s representative was ineffective, plaintiff
must be treated as having been pro se at the hearing and therefore, the ALJ failed to
adequately develop the record. The plaintiff also argues that the ALJ erred in failing to
question plaintiff’s representative at the hearing to determine whether she was
“qualified” to represent plaintiff. Plaintiff’s counsel has submitted, as part of his brief,
treating source records that were not obtained by plaintiff’s representative and were not
part of the record below. (Pl.’s Br. “Addendum A”).
Plaintiff’s Addendum A consists of three reports from Dr. W. Bruce Bunn, a
pulmonologist from Champlain Valley Physicians’ Hospital (“CVPH”) Pulmonology.
(Id.) The reports are dated September 27, 2017, November 29, 2017, and June 20,
2018. (Pl.’s Addendum A at 1-15). The last report is dated December 31, 2014, written
by Dr. Wajih Aksamawai Dit Arja, M.D. (Pl.’s Addendum at 15-17).
There are two issues before the court, one focusing on the effectiveness of the
representation, and the other focusing on the ALJ’s conduct. First, even if plaintiff’s
representative had been an attorney, there is no right to effective assistance of counsel
in a Social Security action. Fastiggi v. Comm’r of Soc. Sec., No. 11 CIV. 997, 2014 WL
1285125, at *5–6 (S.D.N.Y. Mar. 31, 2014) (citations omitted). The qualifications of a
non-attorney representative are set forth in 20 C.F.R. § 404.1705 and 416.1505, are
known to have good character and reputation,” “is capable of giving valuable help to
you in connection with your claim,” is not “disqualified or suspended from acting as a
representative” in dealings with Social Security, and is not “prohibited by any law from
acting as a representative.” Id. 20 C.F.R. 404.1705(b)(1)-(b)(4).
Plaintiff argues that the ALJ failed to ask Ms. Wills about her qualifications to
act as representative “as required by 20 C.F.R. § 404.1705 and 416.1505.” However,
there is nothing in the regulations that requires that the ALJ make inquiry about the
representative’s qualifications on the record. Although counsel states that Ms. Wills
failed to submit certain records and failed to cross-examine the VE, which counsel
argues made her ineffective, there is no indication that she was not “qualified” or failed
to meet the criteria under the regulations. In Doner v. Comm’r of Social Security, No.
8:16-CV-883, 2017 WL 3172419, at *2 (N.D.N.Y. July 25, 2017),7 counsel made the
same argument about the same non-attorney representative. In Doner, the court held
that
there is no support for Plaintiff’s argument that 20 C.F.R.
§ 404.1705 requires the ALJ to inquire into Ms. Wills
qualifications, as that regulation does not place any such
affirmative burden on the ALJ to question non-attorney
representatives about such matters, particularly where the
Plaintiff and his non-attorney representative have provided
affirmative proof that Plaintiff wanted Ms. Wills to act as his
representative.
Id. 2017 WL 3172419, at *6 (citation omitted). In this case, there is no indication that
7 Magistrate Judge Christian Hummel issued a Memorandum Decision and Order in Doner in
accordance with 28 U.S.C. § 636(c) and the consent of the parties.
Wills is not an attorney. (T. 48). Although plaintiff’s current attorney states that Ms.
Wills is not “qualified,” he does not explain what that means, nor does he state how Ms.
Wills fails to meet the regulation’s requirements, outlined above.8 Thus, plaintiff’s
argument that she received “ineffective assistance” cannot succeed.
However, the issue of effective assistance is separate from the ALJ’s duty to
develop the record, whether or not plaintiff is represented. In this case, there were no
“obvious gaps” in the record. At the beginning of the hearing, the ALJ discussed the
completeness of the record. The ALJ noted that he had three medical source statements
(“MSS”) from treating physicians, but that the plaintiff had not seen two of those
physicians for over one year prior to the issuance of the MSS. (T. 49-52). The ALJ was
concerned that the physicians had not seen plaintiff for over one year, but they were
providing “current” opinions of her functioning. (T. 50). There were no current records
from the two physicians, Dr. Kent and Dr. Bartos because plaintiff stopped seeing Dr.
Kent, and she had not seen Dr. Bartos for approximately one year. The ALJ already
had all the records that existed from those two physicians.
The ALJ did notice that Otolaryngologist, Dr. Gary Landrigan, had seen plaintiff
more recently - “[w]e have records from him at least through November 15 of 2017.”
8 In addition to arguing that the ALJ should have inquired as to Ms. Wills’s qualifications on
the record, counsel focuses upon Ms. Wills’s failure to obtain certain records and her failure to cross-
examine the VE as evidence that plaintiff was essentially “unrepresented.” (Pl.’s Br. at 19). The court
notes that Ms. Wills discussed the completeness of the record with the ALJ, questioned the plaintiff
extensively regarding her abilities, her prior work, her daily activities, and her current condition. (T.
49-52, 57-58, 59-63, 64, 65-67). While Ms. Wills did not “cross-examine” the VE, counsel has not
specified what questions Ms. Wills should have asked. Further examination of Ms. Wills performance
is not required by the regulations or by case law.
plaintiff “has transferred her allergy and asthma care to Dr. Bruce Bunn, CVPH,” there
is no date of examination by Dr. Bunn, and plaintiff never mentioned Dr. Bunn as a
current physician at the time of the hearing.
The court also notes that only two of Dr. Bunn’s reports would have existed at
the time of the ALJ’s hearing, his initial examination on September 27, 2017 and his
November 25, 2017 report. The June 20, 2018 report was written the day after the
ALJ’s issued his decision on June 19, 2018. Clearly the ALJ may not be faulted for
failing to obtain a report that was not yet written. See Kelly v. Berryhill, No. 19-CV-
741, 2020 WL 565412, at *2 (E.D.N.Y. Feb. 5, 2020) (ALJ fulfilled his duty by asking
plaintiff’s attorney to obtain the relevant records).
Plaintiff has also submitted a report dated December 31, 2014, which is outside
the relevant period and not written by Dr. Bunn.9 (Pl.’s Br. Addendum at 15). With
respect to Dr. Bunn’s September and November 2017 reports, as stated above, plaintiff
never mentioned Dr. Bunn as a treating physician. Dr. Bunn also worked at CVPH
Pulmonology, and it was not clear from Dr. Landrigan’s November 15, 2017 statement
9 The report is written two years prior to plaintiff’s onset date and is signed by Dr. Arja. This
document is an office note, written as a follow-up to plaintiff’s December 29, 2014, two-day hospital
stay. The administrative transcript contains Dr. Arja’s discharge summary, dated December 29, 2014,
which indicates that the plaintiff will “follow-up with Dr. Arja on 12/31/14.” (T. 501). The report was
co-signed by Dr. Bunn. (Id.) The administrative transcript also contains all the relevant documents
from the two-day hospitalization. (T. 496-99). The discharge summary states that plaintiff was
admitted to the hospital with an asthma exacerbation, likely caused by mold exposure in her home. (T.
500). Plaintiff subsequently moved out of the home in question. In fact, the record submitted by
plaintiff’s counsel states that, upon discharge, she was doing “much better,” plaintiff was advised not
to return to the home, and told that she should stay with her relatives. This information was essentially
included in the documents that do appear in the record. (T. 496-501). Thus, the failure to obtain this
particular follow-up note was harmless.
CVPH, and the ALJ specifically discussed the record at the beginning of the hearing to
make sure that it was complete. (T. 49-52). It is unclear how the ALJ would have
discovered that these additional records existed. Ms. Wills stated that there was an
emergency room record outstanding, and she submitted it after the hearing.10 (T. 49,
578-86).
In Vay v. Comm’r of Soc. Sec., 382 F. Supp. 3d 267, 272-73 (W.D.N.Y. 2018),
the court held that the ALJ fulfilled his obligation to develop the record, even in a pro
se case, where there were no obvious gaps in the record, the ALJ asked plaintiff’s
mother to supply him with any additional evidence that she might possess which would
establish her child’s disability, and he held the record open after the hearing. As stated
above, during the hearing in this case, the ALJ noted some perceived deficiencies in the
record and discussed the lack of recent examination by some of plaintiff’s treating
physicians. Dr. Kent was no longer treating plaintiff at the time of the ALJ’s hearing,
and plaintiff’s representative noted that plaintiff was not seeing Dr. Kent because she
could not afford to do so. (T. 50). Plaintiff admitted that she had not seen Dr. Bartos
for over one year, so there were no updated records for her to obtain.11 (T. 51). The
ALJ stated that Dr. Landrigan’s last report was from four months prior to the hearing,
and there was no indication that another physician saw plaintiff in the interim. The ALJ
10 The emergency room record was unrelated to plaintiff’s respiratory impairment. She went to
the emergency room suffering from contact dermatitis due to cosmetics. (T. 578-86).
11 The ALJ did have the 2018 check-box Pulmonary RFC evaluations from Dr. Bartos, Dr.
Kent, and. Dr. Landrigan.
However, even if the ALJ had erred in failing to discover and obtain Dr. Bunn’s
2017 reports, any error would be harmless. The court may consider whether the ALJ
would have reached the same outcome had he obtained and considered the treatment
records. See Martinez v. Comm’r of Soc. Sec., No. 17 Civ. 10253, 2019 WL 1236324, at
*5 (S.D.N.Y. Mar. 18, 2019) (citing inter alia Seltzer v. Comm'r of Soc. Sec., 07 Civ.
235 (CBA), 2007 WL 4561120, at *10 (E.D.N.Y. Dec. 18, 2007) (“[T]o the extent that
an ALJ fails in her duty to develop the record . . ., the court can still affirm her decision
if this error is deemed to be harmless.”)).
Dr. Bunn’s initial report was dated September 27, 2017. (Pl.’s Br. Addendum at
9). Plaintiff reported that she had lived in a house with black mold, which was causing
serious problems, but that the house had been torn down. (Id.) Plaintiff told Dr. Bunn
that she could not hold a job because of her asthma. (Id.) She also stated that her nasal
congestion symptoms had improved significantly after she began receiving Nucala
injections. (Id.) Her medications included nebulizer treatments every 4-6 hours as
needed. (Id. at 10). Plaintiff stated that she used the nebulizer every four hours. (Id. at
11). Physical examination revealed no acute distress, diffuse expiratory wheezes, but
no crackles or rhonchi were noted. (Id. at 12). There were no retractions or use of
accessory muscles. (Id.) She was instructed to return in two months. (Id. at 13).
Dr. Bunn’s November 29, 2017 report states that plaintiff had a recent
exacerbation of her asthma requiring prednisone burst and taper, but that she was
improved at that time. (Pl.’s Br. Addendum at 5). The doctor noted that plaintiff was
breath sounds in all regions, and forced exhalation did not produce any wheezing. (Id.
at 7). Spirometry pre and post-bronchodilator showed “mild obstructive respiratory
defect improved only slightly after inhaled bronchodilator.” (Id.) Postbronchodilator
Forced Expiratory Volume (“FEV”) “is within normal range at 81% of predicted.” (Id.)
The doctor recommended that she return to the office in three months. (Id. at 8). These
reports contain many improved findings and did not contradict any of the
reports/progress notes that were already in the record.
Plaintiff argues that the ALJ specifically noted that “[a]lso of significance is that
the claimant has not treated regularly since November 2017.” (Pl.’s Br. at 19, T. 39).
Plaintiff implies that Dr. Bunn’s reports would have changed the ALJ’s finding.
However, at the time the ALJ wrote his decision, his statement was completely correct
even if he had seen Dr. Bunn’s November 29, 2017 report.12 According to the new
records submitted by plaintiff, she did not see Dr. Bunn again until June 20, 2018, the
day after the ALJ issued his decision. There still would have been no medical reports
between November 2017, when Dr. Landrigan examined plaintiff, and the ALJ’s
decision on June 19, 2018. Thus, any error in failing to obtain the additional medical
records was harmless.13
12 As stated above, plaintiff saw Dr. Landrigan on November 15, 2017.
13 The court must also point out that Dr. Bunn’s June 20, 2018 report states that “[f]rom the
standpoint of her asthma, it is generally stable.” (Pl.’s Addendum at 1). Plaintiff was still experiencing
some coughing and shortness of breath, and was having trouble doing her recommended 100 minutes
of exercise on a weekly basis because of a runny nose. However, “[o]verall, she definitely notices
better control of asthma symptoms with the use of Nucala,” but she was still struggling to come off
Prednisone altogether. (Id.)
plaintiff’s counsel do not constitute “new and material” evidence, supporting a remand
for further consideration on that basis. A case may be remanded to the Commissioner
for reconsideration based on new evidence first submitted to the district court if the
plaintiff is able to show that the new evidence “is material and that there [wa]s good
cause for the failure to incorporate such evidence into the record in a prior proceeding.”
42 U.S.C. § 405(g). To carry this burden, a plaintiff must show that “(1) the proffered
evidence is new and not merely cumulative of what is already in the record; (2) the
proffered evidence is material, meaning that it is (a) relevant to his condition during the
time period for which benefits were denied; (b) probative; and (c) reasonably likely to
have influenced the Commissioner to decide his application differently; and (3) good
cause exists for his failure to present the evidence earlier.” Mulrain v. Commissioner of
Social Sec., 431 F. App’x 38, 39 (2d Cir. 2011).
As stated above, without discussing each of the above factors, this court finds
that the evidence submitted by plaintiff would not likely have influenced the
Commissioner to decide this case differently. In addition, the court notes that
plaintiff’s current counsel represented her before the Appeals Council. Plaintiff missed
the deadline for filing her appeal to the Appeals Council, and her current attorney
requested that plaintiff be allowed to file a late appeal. (T. 1, 7). Counsel’s letter is
dated November 13, 2018, but failed to include the new medical reports, the latest of
which was dated June 20, 2018. There appears to be no good cause for the failure to
present the evidence to the Commissioner earlier. Thus, the medical reports contained
material” evidence.14 The court will now turn to plaintiff’s arguments based on the
existing record.
VII. RFC: (Plaintiff’s Points II-V)
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 Social Security Ruling (“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.
§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)
(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.
14 Plaintiff does not make this argument, but I have included possible bases for the
consideration of the evidence.
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
Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *7).
2. Weight of the 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(d) and 416.927(d), 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
the plaintiff is “disabled” under the Act. Id.
In evaluating medical opinions on issues that are reserved to the Commissioner,
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)).
A treating source’s opinion on the nature and severity of a claimant’s
impairments is entitled to controlling weight where it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques” and “not inconsistent with the
other substantial evidence” of the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
This is known as the “treating physician rule.” Estrella v. Berryhill, 925 F.3d 90, 95 (2d
Cir. 2019) (citation omitted).
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.” Id. at 95-96 (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. However, the error is harmless if a “searching review of the
record . . . assures us that the substance of the treating physician rule was not
traversed.” Id.
In evaluating a plaintiff’s RFC for work in the national economy, the ALJ must
take the plaintiff’s reports of pain and other symptoms into account. Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010). The ALJ must “‘carefully consider’” all the evidence
presented by claimants regarding their symptoms, which fall into seven relevant factors
including ‘daily activities’ and the ‘location, duration, frequency, and intensity of
[their] pain or other symptoms.’” Del Carmen Fernandez v. Berryhill, No. 18-CV-326,
2019 WL 667743, at *9 (S.D.N.Y. Feb. 19, 2019) (citing 20 C.F.R. § 404.1529(c)(3);
Social Security Ruling (SSR) 16-3p, Titles II and XVI: Evaluation of Symptoms in
Disability Claims, 81 FR 14166-01 at 14169-70, 2016 WL 1020935 (Mar. 16, 2016)).
In 2016 the Commissioner eliminated the use of term “credibility” from the “sub-
regulatory policy” because the regulations themselves do not use that term. SSR 16-3p,
81 FR at 14167. Instead, symptom evaluation tracks the language of the regulations.15
The evaluation of symptoms involves a two-step process. First, the ALJ must
determine, based upon the objective medical evidence, whether the medical
impairments “could reasonably be expected to produce the pain or other symptoms
alleged . . . .” 20 C.F.R. §§ 404.1529(a), (b); 416.929(a), (b).
If so, at the second step, the ALJ must consider “‘the extent to which [the
claimant’s] alleged functional limitations and restrictions due to pain or other
symptoms can reasonably be accepted as consistent with the [objective medical
15 The standard for evaluating subjective symptoms has not changed in the regulations. Rather,
the term “credibility” is no longer used, and SSR 16-3p makes it clear that the evaluation of the
claimant’s symptoms is not “an evaluation of the claimant’s character.” 81 FR at 14167. The court will
remain consistent with the terms as used by the Commissioner.
ability to work.’” Barry v. Colvin, 606 F. App’x 621, 623 (2d Cir. 2015) (citing inter
alia 20 C.F.R. § 404.1529(a); Genier v. Astrue, 606 F.3d at 49) (alterations in
original).16
If the objective medical evidence does not substantiate the claimant’s symptoms,
the ALJ must consider the other evidence. Cichocki v. Astrue, 534 F. App’x 71, 76 (2d
Cir. 2013) (citing superceded SSR 96-7p). The ALJ must assess the claimant’s
subjective complaints by considering the record in light of the following symptom-
related factors: (1) claimant’s daily activities; (2) location, duration, frequency, and
intensity of claimant’s symptoms; (3) precipitating and aggravating factors; (4) type,
dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5)
other treatment received to relieve symptoms; (6) any measures taken by the claimant to
relieve symptoms; and (7) any other factors concerning claimant’s functional
limitations and restrictions due to symptoms. 20 C.F.R. §§ 404.1529(c)(3),
416.929(c)(3).
The ALJ must provide specific reasons for the determination. Cichocki v. Astrue,
534 F. App’x at 76. However, the failure to specifically reference a particular relevant
factor does not undermine the ALJ’s assessment as long as there is substantial evidence
supporting the determination. Id. See also Del Carmen Fernandez v. Berryhill, 2019
WL 667743 at *11 (citing Rousey v. Comm’r of Soc. Sec., 285 F. Supp. 3d 723, 744
16 The court in Barry also cited SSR 96–7p, 1996 WL 374186, at *2 (July 2, 1996) which was
superceded by SSR 16-3p. As stated above, the factors considered are the same under both rulings.
The 2016 ruling has removed the emphasis on “credibility.”
court to glean the rationale of an ALJ’s decision.’” Cichocki v. Astrue, 534 F. App’x at
76 (quoting Mongeur v. Heckler, 722 F.2d at 1040).
B. Application
In this case, plaintiff argues that the ALJ’s RFC determination is not supported
by substantial evidence because the ALJ did not give appropriate weight to the opinions
of plaintiff’s treating physicians and to the Commissioner’s own consultant, Dr. Nader
Wassef, M.D. Plaintiff also contends that the ALJ erred in “rejecting plaintiff’s
credibility, and he failed to consider the combination of her impairments.
The ALJ had three “Pulmonary Residual Functional Capacity” (“PRFC”)
Questionnaires before him, arguably from treating physicians. (T. 572-73, 574-75, 576-
77). The first PRFC was from plaintiff’s “treating” primary care physician, Dr.
Elizabeth Bartos; the second was from Dr. Gary Landrigan, the treating
otolaryngologist; and the third from Dr. Edward Kent, an allergist who saw plaintiff
approximately five times between April of 2016 until April of 2017 before her
insurance stopped covering the visits, and she could no longer afford to see him.
Although Dr. Bartos is listed as plaintiff’s primary care physician, she completed
her PRFC on March 22, 2018, having examined plaintiff only once on April 17, 2015.
(T. 466-68, 572-73). While plaintiff saw other providers in Dr. Bartos’s practice, it
does not appear that Dr. Bartos actually examined plaintiff on any day other than April
17, 2015. When the ALJ was discussing medical records at the hearing, it was agreed
that “someone other than Bartos was treating her.” (T. 51). In 2016, plaintiff saw
450, 453, 456, 460). Plaintiff saw Dr. Bartos on April 17, 2015 for a sinus infection
and asthma. (T. 466-68). Dr. Bartos noted that plaintiff had been hospitalized
“recent[ly]” for three days due to asthma and had “recent” sinus surgery. (T. 466).
Upon physical examination plaintiff looked a bit tired, had a tight cough, and was
“mildly” ill appearing, and had rhonchi17 in her lungs. (T. 468).
In her check-box PRFC, dated March 22, 2018, Dr. Bartos stated that plaintiff
could lift and carry up to 20 pounds and frequently lift and carry up to ten pounds. (T.
572). She estimated that plaintiff would have an asthma attack every four to eight
hours and would be incapacitated for four hours up to one day “during an average
attack.” (Id.) Dr. Bartos also checked the box stating that plaintiff would be absent
from work about three times per month due to her impairments or their treatment. (Id.)
Dr. Bartos checked boxes stating that plaintiff should avoid all exposure to extremes in
temperature and various respiratory irritants. (T. 573). She stated that plaintiff could sit
and stand for thirty minutes each, with a total of “about 2” hours sitting and “about 4”
hours standing. (Id.) Dr. Bartos stated that plaintiff’s other limitations included the
necessity for frequent breaks during the day and access to an “outlet” so that she could
use her nebulizer. She estimated that plaintiff had been functioning at this level for
three years. (Id.)
Dr. Kent saw plaintiff’s several times, and in his PRFC, he estimated that
plaintiff could occasionally lift and carry up to 20 pounds and frequently lift and carry
17 Rhonchi are rattling lung sounds.
than once per day and that she would be “incapacitated” for approximately two hours
during an “average” attack. He stated that plaintiff would be absent more than three
times per month due to her impairments or their treatment. (Id.) He also stated that
plaintiff should avoid all exposure to extremes of temperature and several listed
pulmonary irritants.18 (T. 577). Dr. Kent estimated that plaintiff could sit and stand for
1-2 hours each. She could sit, stand/walk for a total of about 2 hours each total in an 8-
hour day. (Id.)
The ALJ gave both Dr. Bartos and Dr. Kent “limited probative value because
they lacked foundation, and they had not treated plaintiff recently. Thus, they were not
up-to-date on plaintiff’s limitations or abilities. (T. 38). The ALJ supported his analysis
with substantial evidence. Even assuming that Dr. Bartos is a treating physician, under
the Estrella/Burgess factors, the ALJ would have been justified in refusing to give the
PRFC “controlling weight.” Dr. Bartos saw plaintiff once in 2015 when she had a sinus
infection, and none of the subsequent reports from the Lake Placid Health Center were
even co-signed by this physician.19 She is an internist and not a specialist in pulmonary
medicine or allergies, and her one progress note, written in 2015, sheds no light on
18 The court will discuss the issue of environmental limitations below.
19 Plaintiff was seen for her pulmonary condition on January 21, 2016 by FNP Boon for a
variety of complaints, including her asthma. (T. 460-66). On February 1, 2016 plaintiff was seen by
PA Brengel. (T. 456-59). He stated that February 1, 2016 was his first encounter with the plaintiff. (T.
456). On February 9 and 10, 2016 plaintiff was seen by PA Brengel and FNP Boon. (T. 450-55). The
transcript contains other records from the Lake Placid Health Center, but these records are not
specifically related to plaintiff’s pulmonary condition. (T. 432-45) (Tracey Viola, D.O. - plaintiff’s
shoulder problems).
after she last saw plaintiff according to the transcript. It was reasonable for the ALJ to
determine that Dr. Bartos’s opinion “lacked foundation” and was entitled to limited
probative value.
Dr. Kent is an allergist. However, plaintiff only saw him from April 11, 2016
until April 20, 2017 because her insurance would not longer pay for her visits. Thus,
when Dr. Kent completed his check-box PRFC form on April 5, 2018, he had not
examined the plaintiff for almost one year and was no longer her physician at that time.
The ALJ noted that Dr. Kent had seen plaintiff five times, but had not seen her in one
year, and his progress notes “documented significant reversibility following
spirometry.”20 (T. 38). There is also no indication in Dr. Kent’s progress notes that he
was assessing anything other than plaintiff’s pulmonary condition. There is no
reference to plaintiff’s ability to sit, stand, or walk in any of the progress notes. In
April of 2016, Dr. Kent reported that plaintiff’s pulmonary function tests showed a
moderate obstructive pattern, but there was “significant reversibility.” (T. 433, 435).
Dr. Kent noted the same results in June of 2016. (T. 516). On April 20, 2017, Dr. Kent
noted that plaintiff had severe persistent asthma, despite frequent oral steroids, and he
stated that pulmonary function testing showed a moderate obstructive pattern, but a
reversibility assessment was not performed. (T. 525). Plaintiff had some chest wall
discomfort, and she was a candidate for “Nucala,” but that this medication was denied
20 “Reversibility” indicates the improvement of lung function after drug-administration.
Asthma: diagnosis and monitoring of asthma in adults, children and young people - Ch. 12 “Diagnosis:
Bronchodilator reversibility,” https://www.ncbi.nlm.nih.gov/books/NBK536615/
Dr. Landrigan completed the same check-box PRFC on March 30, 2018. (T. 574-
75). Dr. Landrigan opined that plaintiff could lift less than 10 pounds occasionally and
would be absent more than three times per month. (T. 574). He also stated that plaintiff
would have “never constant” asthma attacks, but would be incapacitated “near
constant” during an average attack. (Id.) He also stated that plaintiff should avoid all
exposure to temperature extremes and various pulmonary irritants. (T. 575). However,
he stated that he had “no idea” how long plaintiff could sit, stand, or walk. (Id.)
The ALJ stated that Dr. Landrigan’s report was entitled to “reduced
persuasiveness” because he stated that plaintiff had been functioning at the opined level
of functioning “for greater than five years.” The ALJ correctly noted that, during the
five years prior to Dr. Landrigan’s report, plaintiff worked two different jobs that
involved much greater lifting and exposure to a variety of irritants. (T. 38). The ALJ
also noted that plaintiff testified that she left her waitress job because she could not lift
and carry, rather than due to respiratory problems. (T. 39, 54). Thus, the ALJ’s
decision not to afford controlling weight to the treating physicians’ PRFC statements is
supported by substantial evidence.
The ALJ gave significant weight to the consultative internal medicine opinion of
21 The court notes that after plaintiff stopped seeing Dr. Kent, she was approved for Nucala. (T.
551). On November 15, 2017, Dr. Landrigan stated that plaintiff had four doses “to date,” that it was
“well tolerated,” and that she reported a “clear nasal passage.” On November 15, 2017, plaintiff had
nasal endoscopy which showed “widely patent airway” bilaterally. (Id.) Thus, the ALJ was justified in
giving Dr. Kent’s assessment of plaintiff’s abilities, made a year after he last examined her less weight
because it is apparent that plaintiff’s condition, and therefore functional abilities, could have changed
in one year based upon new medication. It might have been different if Dr. Kent had written the PRFC
while he was seeing the plaintiff.
but also found that plaintiff should not be exposed to extremes in temperature, second-
hand smoke, perfumes, chemicals, or any type of respiratory irritants. (T. 483). He also
found that plaintiff had “moderate” limitation in standing, walking, climbing and
descending stairs, bending, squatting, lifting, and operating foot controls. (Id.) The
ALJ recognized that Dr. Wassef’s opinion was “vague and provided in terms with little
vocational relevance.”
However, the ALJ looked to the “overall record,” including the plaintiff’s work
activities during the post-onset period and her own reports of household activities.
Under the regulations, plaintiff’s daily activities are a factor the ALJ may properly
consider. 20 C.F.R. § 404.1529(c)(3). See Cichocki v. Astrue, 729 F.3d 172, 178 (2d
Cir. 2013) (ALJ properly considered the plaintiff's varied daily activities in formulating
the RFC); Herrington v. Berryhill, No. 3:18-CV-315, 2019 WL 1091385, at *7 (D.
Conn. Mar. 8, 2019) (activities of daily living, including childcare, are appropriate
factors for an ALJ to consider when assessing a plaintiff’s claimed symptoms and
limitations). The ALJ found that, based on this analysis, Dr. Wassef’s opinion was
“representative of exertionally light [RFC].” (T. 39).
The court finds that the ALJ’s decision in this regard is supported by substantial
evidence. Dr. Landrigan was the treating physician who saw plaintiff most recently of
the three physicians who submitted PRFCs. He stated that he had “no idea” how long
plaintiff could sit, stand, or walk, and although his PRFC restricted plaintiff’s lifting to
up to 10 pounds, it is unclear how he made that decision when he stated that he had no
“moderate” restriction on an individual’s functional abilities, as stated by Dr. Wassef, is
consistent with an RFC for a full range of light work. See White v. Comm’r of Soc. Sec.,
No. 8:17-CV-109, 2018 WL 2170288, at *8-9 (N.D.N.Y. May 18, 2018) (the moderate
limitations as opined by Dr. Wassef are not inconsistent with an RFC for light work)
(collecting cases), aff’d, 753 F. App’x 80, 82 (2d Cir. 2019); Martinez v. Comm’r of
Soc. Sec., No. 13 Civ. 159, 2016 WL 6885181, at *13 (S.D.N.Y. Oct. 5, 2016)
(citations omitted), Rep’t-Rec. adopted, 2016 WL 6884905 (S.D.N.Y. Nov. 21, 2016).
The medical records support this analysis. On April 27, 2016, plaintiff saw
Tracey Viola, D.O. to follow up for shoulder pain, which was “better,” but she still had
some twinges. (T. 443). Dr. Viola’s progress note stated that plaintiff had to go back to
work. Plaintiff’s shoulder pain had improved with an injection, and her strength was
5/5 though “painful.” (T. 444). Dr. Viola released plaintiff to go back to work, on
“light” duty, lifting no more than 20 pounds. (T. 445). By June 3, 2016 when plaintiff
was examined by Dr. Wassef, she mentioned her shoulder problem and told Dr.
individual that her treating provider told her not to lift overhead and not to lift more
than 20 pounds.22 Dr. Wassef’s physical examination showed completely normal
functional movement, full ranges of motion in all areas of the body, including her
shoulder, full strength and dexterity. (T. 482-83).
The ALJ considered the medical evidence relating to plaintiff’s physical
impairment, noting both lumbar sprain/strain and a left shoulder impairment. (T. 37).
22 Dr. Viola’s report did not mention a restriction on lifting overhead. (T. 445). A twenty pound
lifting limitation is consistent with light work. 20 C.F.R. § 404.1527(b).
weakness, numbness or tingling, full range of motion and good and equal strength. (Id.)
The ALJ cited Dr. Wassef’s opinion and correctly noted that he assessed “moderate
limitations,” and that there were no further records to indicate any ongoing treatment
for these physical conditions. Thus, the ALJ’s determination that plaintiff had the
exertional RFC for light work is supported by substantial evidence in the record,
notwithstanding Dr. Wassef’s “vague” opinion.
Turning to plaintiff’s environmental limitations, in his RFC determination, the
ALJ found that plaintiff should avoid “concentrated exposure to extremes of heat and
cold and pulmonary irritants such as fumes, odors, dust, and gases.” (T. 36) (emphasis
added). Plaintiff argues that all the treating physicians found that she should avoid
“all” exposure to extremes in temperature and humidity and “all” exposure to
respiratory irritants such as solvents/cleaners, chemicals, soldering fluxes, cigarette
smoke, perfumes, dust, fumes, and gases. (T. 573, 575, 577). The check-box form
begins with “no restriction,” “avoid concentrated exposure,” “avoid moderate
exposure,” and ends with “avoid all exposure.” (Id.) Plaintiff states that the opinions of
her treating physicians are supported by Dr. Wassef, who stated that plaintiff should
avoid “extremes in temperature, second-hand smoke, perfumes, chemicals, or any type
of respiratory irritants.” (Pl.’s Br. at 22, T. 483). Plaintiff also argues that the ALJ
improperly rejected these opinions because the doctors were not seeing her at the time
23 Although the ALJ does not name the treating source, it is clear that he is referring to Dr.
Viola because the ALJ also states that the “treating source” did provide claimant with a work
restriction of no lifting more than twenty pounds.” (T. 37).
Plaintiff’s argument is not completely accurate. The ALJ first rejected Dr.
Bartos’s opinion, not only because she had not seen plaintiff since 2015, but also
because she only treated plaintiff on “one” occasion. (T. 38). The ALJ gave Dr.
Landrigan’s PRFC “reduced persuasiveness” because he opined that plaintiff’s
environmental limitations had lasted at the same level for 5 years, but that during that
time, plaintiff was working at jobs in which she was exposed to “a number of solvents,
cleaners, smoke, and/or perfumes, in addition to requiring her to lift at least 10 pounds
or more.” (T. 38-39). As stated above, the reduced weight that the ALJ gave Dr.
Landrigan’s opinion is supported by substantial evidence. In addition, it is clear from
the ALJ’s decision that he was considering the combination of plaintiff’s impairments
when he discussed the weight that the was giving to the treating physician’s reports.24
In any event, at the hearing, the ALJ began with a hypothetical question in which
plaintiff “must avoid concentrated exposure” to temperature extremes and pulmonary
irritants. (T. 72). However, after the VE discussed the possible light and sedentary jobs
24 Plaintiff argues that the ALJ did not give sufficient weight to the opinion of the consultative
psychologist, Carly Mount, who concluded that plaintiff had a “mild to moderate limitation
appropriately dealing with stress because of her PTSD and depression.” (Pl.’s Br. at 22). The ALJ
discussed the “mention” of mental health problems. (T. 36). However, he correctly found that any
mental health issues were “non-severe.” The ALJ gave weight to the psychiatric consultant, Dr. Ochoa
as well as Dr. Mount, in finding that there was no evidence that plaintiff’s problems were “significant
enough to interfere with the plaintiff’s ability to function.” (T. 36). Plaintiff was not treating for any
mental heath issues, Dr. Viola stated that her mental health was stable, and she did not require
medication. (T. 443). Dr. Viola referred to plaintiff’s mental health issues in the “Past Medical
History” section of her progress notes. (Id.) Under the “psychiatric” section of plaintiff’s examination,
Dr Viola stated “Affect: appropriate. Mood: normal.” (T. 444). Because the ALJ correctly found at
step two of the sequential analysis that plaintiff’s mental impairment did not affect the plaintiff’s
ability to function, there was no need to specifically discuss it later in the decision, notwithstanding the
requirement that non-severe impairments be “considered” in later steps of the disability evaluation.
75). The ALJ stated that his first hypothetical restricted plaintiff only to “concentrated
exposure,” but then asked the VE “would the jobs you cited, would they have any
exposure to those things?” (Id.) The VE responded that “[w]ell, I was looking for clean
environments,” and that the only job she mentioned in which there might be a
“question” was the hostess job because plaintiff alleged that the smell in a restaurant
might “set her off.” (T. 75). Thus, even if the ALJ erred in determining that plaintiff
should avoid only “concentrated” exposure, all but one of the jobs listed by the VE did
not involve any exposure to pulmonary irritants. Any error would have been rendered
harmless by the VE’s answer to the ALJ’s follow-up questions.
Plaintiff also argues that the ALJ erred in rejecting her “credibility.” (Pl.’s Br. at
29-35). As stated above, the Commissioner no longer uses the term “credibility.”
Rather, the ALJ determines plaintiff’s allegations for their consistency with the medical
evidence together with the factors cited above. In this case, the ALJ outlined the
factors to be considered and specifically noted that he had given these factors “full
consideration.” (T. 39).
In considering the relevant factors, the ALJ discussed plaintiff’s activities. (Id.)
He noted that since plaintiff’s onset date, she worked as a waitress. Although this work
did not rise to the level of SGA, the work “vouches for her abilities,” lessening “the
persuasiveness” of her claim that she could not be around any smells or had problems
standing and walking. (Id.) The ALJ also discussed plaintiff’s second job, which she
held at the same time as the waitress job, and during which she was required to assist
of daily living, including home schooling her children,25 going out to dinner, going
bowling, and occasional gardening. The court also notes that plaintiff testified that she
has two dogs, and although they are not allowed in her bedroom, and must be “set apart
in the house,” they are allowed on the middle floor. (T. 61-62). The ALJ concluded
that given “the lack of medical evidence supporting the overall allegations,” in addition
to plaintiff’s other activities, her statements were found to be “only somewhat
consistent with the evidence.” (Id.) This includes her statements regarding her
nebulizer use.
Plaintiff argues that the ALJ erred in failing to consider that plaintiff would be
required to use her nebulizer throughout the day, rendering her unable to work.
However, on plaintiff had surgery on September 16, 2016,26 and when she returned to
see Dr. Landrigan on October 21, 2016, he stated that “her asthma has remained
excellent, requiring an albuterol inhaler x3 only versus q.i.d.27 with nebulizer
preoperatively in combination with maintenance steroid.” (T. 537). Dr. Landrigan
stated that plaintiff had developed an upper respiratory infection which had progressed
25 Plaintiff testified that she home schooled her children because she was afraid that they would
bring home “school bugs,” and that this would cause her to become ill. (T. 68). However, the fact that
she is able to conduct home schooling for the children in addition to telling Dr. Wassef that she
cooked, cleaned once per day, shopped, and took care of the children indicates greater activities than
she claimed. (T. 481). She told Dr. Mount that her asthma was very limiting, but that occasionally she
went bowling, went out to McDonald’s for dinner, and was trying to garden. (T. 476).
26 Dr. Landrigan performed surgery on September 16, 2016. (T. 547-49). Dr. Landrigan’s
surgical report states that various procedures were performed to open paranasal sinuses, remove
diseased tissue and open all the sinuses to allow for topical steroid rinses.” (T. 547).
27 Q.I.D. is the abbreviation indicating four times per day. https://www.medicinenet.com/script/
main/art.asp?articlekey=13561
his assessment, he stated that “Albuterol requirements are markedly reduced.” (Id.)
Thus, the ALJ’s failure to mention plaintiff’s nebulizer use in the RFC was justified,
and the ALJ’s analysis is supported by substantial evidence.
VIII. VE/NUMBER OF JOBS: (Plaintiff’s Point VI)
A. Legal Standards
If a claimant is unable to perform a full range of a particular exertional category
of work, or the issue is whether a claimant’s work skills are transferable to other jobs,
then the ALJ may utilize the services of a vocational expert. 20 C.F.R. §§ 404.1566,
416.966. A vocational expert may provide testimony regarding the existence of jobs in
the national economy and whether a particular claimant may be able to perform any of
those jobs given his or her functional limitations. See Rautio v. Bowen, 862 F.2d 176,
180 (8th Cir. 1988); Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983).
If the ALJ utilizes a VE at the hearing, generally, the VE is questioned using a
hypothetical question that incorporates plaintiff’s limitations. Although the ALJ is
initially responsible for determining the claimant’s capabilities based on all the
evidence, see Dumas v. Schweiker, 712 F.2d 1545, 1554 n.4 (2d Cir. 1983), a
hypothetical question that does not present the full extent of a claimant’s impairments
cannot provide a sound basis for vocational expert testimony. See De Leon v. Sec’y of
Health and Human Servs., 734 F.2d 930, 936 (2d Cir. 1984); Lugo v. Chater, 932 F.
Supp. 497, 503-04 (S.D.N.Y. 1996). The Second Circuit has stated that there must be
“substantial record evidence to support the assumption upon which the vocational
5:10-CV-307, 2012 WL 1758880, at *7 n.5 (D. Vt. May 16, 2012) (the hypothetical
question posed to the VE must accurately portray the plaintiff’s physical and mental
impairments) (citations omitted); Green v. Astrue, No. 08 Civ. 8435, 2012 WL
1414294, at *18 (S.D.N.Y. April 24, 2012) (citing Dumas, 712 F.2d at 1553-54).
B. Application
Plaintiff argues that the Commissioner did not meet her burden of showing that
there are a “substantial number” of jobs that plaintiff could perform. (Pl.’s Br. at 36-
37). Plaintiff argues that Office Helper (3,682 jobs nationally), hostess (6,033 jobs
nationally), surveillance system monitor (6,375 jobs nationally), and callout operator
(5,876 jobs nationally) are not “significant numbers” under the “law of the Northern
District of New York.” (Pl.’s Br. at 37). Courts have held that a “significant number”
of jobs is “fairly minimal.” Rosa v. Colvin, No. 3:12-CV-170, 2013 WL 1292145, at *9
(N.D.N.Y. March 27, 2013) (citing Fox v. Comm’r of Soc. Sec., No. 6:02-CV-1160,
2009 WL 367628, at *20 (N.D.N.Y. Feb. 13, 2009)). In Bavaro v. Astrue, the Second
Circuit held that the Commissioner need only show “one” job existing in the national
economy that plaintiff could perform. Bavaro v. Astrue, 413 F. App’x 382, 384 (2d Cir.
2011).
In this case, the ALJ cited both light and sedentary jobs that the plaintiff could
perform, and although plaintiff’s counsel cites four of those jobs and argues that they
do not exist in “significant numbers,” the ALJ also cited the job of “counter attendant,”
of which there are 50,690 jobs nationally, hotel greeter (25,752 jobs nationally), and
telephone solicitor (148,942 jobs nationally). (T. 41). Plaintiff does not question that
these jobs exist in significant numbers, but argues that she cannot perform these jobs
because she cannot be exposed to any respiratory irritants. However, as stated above,
the VE testified that the jobs she mentioned would not involve exposure to respiratory
irritants. Thus, plaintiff's argument cannot succeed even if this court were to find that
the ALJ erred in his RFC determination.
WHEREFORE, based on the findings above, it is hereby
ORDERED, that the decision of the Commissioner is AFFIRMED and this case
DISMISSED, and it is
ORDERED, that the Clerk enter judgment for DEFENDANT.
Dated: March 10, 2020
find JT Dap.
Hon. Andrew T. Baxter
U.S. Magistrate Judge
38