# Hyde v. Commissioner of Social Security

> District Court, N.D. New York · March 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10312653

## Case

- **Court:** District Court, N.D. New York
- **Decided:** March 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________

MARK H.,

Plaintiff,

v. 5:18-CV-1347 (ATB)

COMM’R OF SOC. SEC.,

Defendant.
____________________________________

APPEARANCES: OF COUNSEL:

CONBOY, MCKAY, BACHMAN PETER L. WALTON, ESQ.
& KENDALL, LLP
Counsel for Plaintiff
407 Sherman Street
Watertown, NY 13601-9990

U.S. SOCIAL SECURITY ADMIN. KATHRYN S. POLLACK, ESQ.
OFFICE OF REG’L GEN. COUNSEL
REGION II
Counsel for Defendant
26 Federal Plaza - Room 3904
New York, NY 10278

ANDREW T. BAXTER, United States Magistrate Judge

DECISION and ORDER
Currently before the Court, is this Social Security action filed by Mark H. (“Plaintiff”)
against the Commissioner of Social Security (“Defendant” or “the Commissioner”) pursuant to
42 U.S.C. § 405(g). This matter was referred to me, for all proceedings and entry of a final
judgment, pursuant to 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. 3, 5). The parties have filed briefs (Dkt. Nos. 7, 10) addressing the
administrative record of the proceedings before the Commissioner (Dkt. No. 6).1
I. RELEVANT BACKGROUND
A. Factual Background
Plaintiff was born in 1957, making him 57 years old as of the alleged onset date and 60
years old on the date of the ALJ’s decision. Plaintiff reported completing the twelfth grade.
He had no past relevant work for the purposes of determining disability. At the initial level,
Plaintiff alleged disability due to a stroke, colon cancer (Stage 3, in remission), high blood

pressure, high cholesterol, sleep apnea, and migraines. (T. 171.)
B. Procedural History
Plaintiff applied for disability insurance benefits on May 28, 2015, alleging disability
beginning on April 18, 2015. Plaintiff’s application was initially denied on September 2, 2015,
after which he timely requested a hearing before an Administrative Law Judge (“ALJ”).
Plaintiff appeared at a hearing before ALJ John P. Ramos, on October 10, 2017. (T. 23-43.)
On December 1, 2017, the ALJ issued a written decision finding that Plaintiff was not disabled
under the Social Security Act. (T. 7-22.) On September 18, 2018, the Appeals Council denied
Plaintiff’s request for review, making the ALJ’s decision the final decision of the

Commissioner. (T. 1-4.)
C. The ALJ’s Decision
In his decision (T. 12-17), the ALJ found that Plaintiff met the insured status

1 The Administrative Transcript is found at Dkt. No. 6. Citations to the Administrative
Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein
will be used rather than the page numbers assigned by the Court’s CM/ECF electronic filing
system.
2
requirements of the Social Security Act through September 30, 2020. (T. 12.) The ALJ
determined that Plaintiff had not engaged in substantial gainful activity since April 18, 2015,
the alleged onset date. (Id.) The ALJ concluded that Plaintiff had severe impairments
including degenerative disc disease of the lumbar and cervical spine. (Id.) The ALJ
determined that Plaintiff did not have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (T. 13.) Specifically, the ALJ considered Listing 1.04 (disorders of
the spine). (Id.) The ALJ found that Plaintiff had the RFC to perform the full range of

medium work. (Id.) The ALJ determined that there were jobs existing in significant numbers
in the national economy that Plaintiff could perform. (T. 17.) The ALJ therefore found that
Plaintiff was not disabled. (Id.)
D. Issues in Contention
In his brief, Plaintiff argues that the ALJ failed to properly weigh the medical opinions
of consultative examiner Rita Figueroa, M.D.; orthopedic providers Howard Huang, M.D.,
Steven Fish, M.D., and Michael Mcelheran, P.A.; primary care provider Edmund Roache, Jr,
M.D.; and physical therapist Jeffrey Auerbach, D.P.T. (Dkt. No. 7, at 10-13.) Plaintiff also
contends that the ALJ failed to properly evaluate his subjective statements and symptoms

including pain. (Id. at 14-16.) Finally, Plaintiff maintains that the RFC for the full range of
medium work is not supported by substantial evidence. (Id. at 16-18.)
Defendant argues that the ALJ properly determined Plaintiff’s RFC, which was
supported by substantial evidence including the opinion of Dr. Figueroa; Plaintiff’s treatment
history, particularly his improved functioning following physical therapy; and Plaintiff’s
extensive daily activities. (Dkt. No. 10, at 7-8.) Defendant also maintains that the ALJ
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properly evaluated the medical evidence in determining the RFC, reasonably weighing and
resolving the conflicting opinions of the various providers who examined or treated Plaintiff.
(Id. at 8-17.) Finally, Defendant argues that the ALJ properly evaluated Plaintiff’s subjective
statements. (Id. at 17-21.) The Court agrees with the Defendant and will affirm the decision of
the Commissioner.
II. RELEVANT LEGAL STANDARD
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether an

individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only
if the correct legal standards were not applied, or it was not supported by substantial evidence.
See, e.g., Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Johnson v. Bowen, 817 F.2d 983,
986 (2d Cir. 1987). “Substantial evidence” is evidence that amounts to “more than a mere
scintilla,” and has been defined as “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Selian, 708 F.3d at 417 (citing Richardson v. Perales,
402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971)). Where evidence is deemed susceptible to
more than one rational interpretation, the Commissioner’s conclusion must be upheld.

Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
4
evidence may support the plaintiff’s position and despite that the court’s independent analysis
of the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147,
153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s
determination considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine whether

an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520,
416.920. The Supreme Court has recognized the validity of this sequential evaluation process.
Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as
follows:
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 is 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; the [Commissioner] presumes that a claimant
who is afflicted with a “listed” impairment is unable to perform
substantial gainful activity. 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 could
perform. Under the cases previously discussed, the claimant bears
the burden of the proof as to the first four steps, while the
[Commissioner] must prove the final one.

5
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d
146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made,
the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III. DISCUSSION
A. The ALJ’s Analysis of the Opinion Evidence and RFC Determination are
Supported by Substantial Evidence

1. Applicable Law
a. 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, 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)).
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. § 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)). An ALJ must specify the functions that a plaintiff is
capable of performing, and may not simply make conclusory statements regarding a plaintiff’s
capacities. Martone, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler, 728 F.2d 582, 588 (2d
Cir. 1984); LaPorta, 737 F. Supp. at 183; Sullivan v. Sec’y of HHS, 666 F. Supp. 456, 460

(W.D.N.Y. 1987)). The RFC assessment must also include a narrative discussion, describing
6
how the evidence supports the ALJ’s conclusions, citing specific medical facts, and non-
medical evidence. Trail v. Astrue, 09-CV-1120 (DNH/GHL), 2010 WL 3825629, *6
(N.D.N.Y. Aug. 17, 2010) (citing SSR 96-8p, 1996 WL 374184, at *7).
Medium work involves, inter alia, “lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c).
“The distinction between medium work and light or sedentary work is the ability to lift and
carry greater weight.” Torres v. Comm’r of Soc. Sec., 6:12-CV-231 (GLS/ATB), 2013 WL
103573, at *5 (N.D.N.Y. Jan. 8, 2013), Report-Recommendation adopted, 2013 WL 103595

(N.D.N.Y. Jan. 8, 2013). A person who can perform medium work is also presumed to be able
to perform light and sedentary work. 20 C.F.R. § 404.1567(c). Light work includes jobs that
require “a good deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm and leg controls.” 20 C.F.R. § 404.1567(b). Sedentary work
involves sitting, but “a certain amount of walking and standing is often necessary in carrying
out job duties.” 20 C.F.R. § 404.1567(a).
b. Consideration of Opinion Evidence
The Second Circuit has long recognized the ‘treating physician rule’ set out in 20
C.F.R. § 404.1527(c). “‘[T]he opinion of a claimant’s treating physician as to the nature and

severity of the impairment is given ‘controlling weight’ so long as it is ‘well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in the case record.’” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir.
2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)). However, “ . . . 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,
7
such as the opinions of other medical experts.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004).
In deciding how much weight to afford the opinion of a treating physician, the ALJ
must “explicitly consider, inter alia: (1) the frequency, length, nature, and extent of treatment;
(2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion
with the remaining medical evidence; and (4) whether the physician is a specialist.’” Greek,
802 F.3d at 375 (quoting Selian, 708 F.3d at 418). However, where the ALJ’s reasoning and
adherence to the regulation is clear, and it is obvious that the “substance of the treating

physician rule was not traversed,” no “slavish recitation of each and every factor” of 20 C.F.R.
§ 404.1527(c) is required. Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (citing
Halloran, 362 F.3d at 31-32). The factors for considering opinions from non-treating medical
sources are the same as those for assessing treating sources, with the consideration of whether
the source examined the claimant replacing the consideration of the treatment relationship
between the source and the claimant. 20 C.F.R. §§ 404.1527(c)(1)-(6).
In assessing a claimant’s RFC, an ALJ is entitled to rely on opinions from both
examining and non-examining medical consultants because they are qualified experts in the
field of social security disability. 20 C.F.R. § 404.1527(e); Cobb v. Comm’r of Soc. Sec., 5:13-

CV-0591 (LEK/TWD), 2014 WL 4437566, at *6 (N.D.N.Y. Sept. 9, 2014) (“[T]he report of a
consultative examiner may constitute substantial evidence to support an ALJ's decision.”)
(quoting Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983)); Heaman v. Berryhill, 765
F. App'x 498, 500 (2d Cir. 2019) (rejecting plaintiff’s argument that the ALJ’s RFC
determination was not supported by substantial evidence because the ALJ relied on the

8
opinions of the consultative examiner and the medical expert, which contradicted the opinions
of treating sources, but were otherwise supported by the record).
2. Relevant Evidence
a. Dr. Figueroa’s Consultative Opinion
In July 2015, Dr. Figueroa examined Plaintiff, who reported that he stopped driving
because of blurry vision and that he experienced migraines once per week with medication. (T.
249.) Plaintiff cooked and cleaned when needed, did laundry a couple of times per week, went
shopping occasionally, and showered, bathed, and dressed every day. (T. 250.) Dr. Figueroa

observed that Plaintiff was in no acute distress, had a normal gait and stance, could perform a
full squat, could walk on his heels and toes without difficulty, needed no help changing for the
exam or getting on and off the exam table, and was able to rise from a chair without difficulty.
(T. 250-51.) Plaintiff had full range of motion in the cervical and lumber spine, with some
limitations--negative straight leg raising bilaterally, physiologic and equal deep tendon reflexes
in the upper and lower extremities, no sensory deficits, full strength in the upper and lower
extremities, intact hand and finger dexterity, and full grip strength bilaterally. (T. 251-52.) Dr.
Figueroa diagnosed stroke, colon cancer, sleep apnea, migraines, and visual loss. She opined
that Plaintiff might have a mild limitation for activities requiring fine visual acuity, with “[n]o

other limitations seen . . . .” (T. 252.)
The ALJ afforded significant weight to Dr. Figueroa’s opinion “to the extent that her
findings are supported by the record as a whole” because she had an opportunity to examine
Plaintiff and had professional, as well as program expertise. (T. 16.) The ALJ noted there was
no evidence that Plaintiff had significant vision issues and, as such, Dr. Figueroa’s “equivocal
limitation regarding visual acuity is rejected.” (Id.) The ALJ concluded that, because Dr.
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Figueroa identified no other physical limitations, her opinion was consistent with Plaintiff’s
ability to perform medium work. (Id.)
b. Treating Opinions
Plaintiff’s primary care provider since 2005, Dr. Roache, prepared a Medical Source
Statement in August 2015. (T. 258-60.) Dr. Roache diagnosed Plaintiff’s mechanical back
pain and colon cancer, and noted symptoms including severe chronic low back pain and very
poor balance. (T. 258.) Dr. Roache opined that Plaintiff could stand/walk and sit up to two
hours each during an eight-hour working day, and that he needed a job permitting shifting

positions at will. (T. 259.) The primary care physician found that Plaintiff could occasionally
lift and carry 20 pounds and frequently lift and carry 10 pounds; could occasionally stoop,
crouch/squat, and climb stairs; and could never climb ladders. (T. 259.) Dr. Roache noted that
Plaintiff’s pain or other symptoms were constantly severe enough to interfere with attention
and concentration needed to perform even simple work tasks. (T. 260.) He was found capable
of performing low stress jobs, with expected absences of more than four days per month. (Id.)
Dr. Roache stated that Plaintiff’s limitations had been present since January 2015. (Id.)
In August 2016, Dr. Roache provided another Medical Source Statement indicating that
he had treated Plaintiff every three months for 20 years. Plaintiff’s conditions included back

pain, colon cancer, and multiple strokes, with symptoms of bilateral leg pain, poor balance, and
poor vision. (T. 418.) Dr. Roache also noted that Plaintiff was unable to tandem walk or see
outer visual fields, and that he needed a cane or other assistive device while engaging in
occasional standing/walking. (Id.) He opined that Plaintiff could stand/walk and sit up to two
hours each; needed to shift positions at will; could frequently lift and carry up to ten pounds
and occasionally lift and carry 20 pounds; could rarely twist, occasionally stoop and climb
10
stairs; could never crouch/squat or climb ladders; and could use his hands, fingers, and arms
each for only 20 percent of a working day. (T. 419.) Dr. Roache found that Plaintiff’s pain or
other symptoms were frequently severe enough to interfere with attention and concentration
needed to perform even simple work tasks. (T. 420.) Plaintiff was incapable of even low
stress jobs, with expected absences of more than four days per month. (Id.) Dr. Roache noted
that Plaintiff’s limitations had been present since 2010. (Id.)
The ALJ afforded less weight to Dr. Roache’s assessments because he had a “lesser”
specialty, and his findings were unsupported by the overall record. (T. 15-16.) The ALJ also

noted that “Dr. Roache assessed extreme exertional limitations, yet the medical record
documents that the claimant was restored to 90% functionality following physical therapy[,]”
and that “Dr. Roache’s limitations are inconsistent with both the objective medical evidence of
record and the claimant’s activities of daily living.” (T. 16.)
In January 2016, Dr. Roache referred Plaintiff to North Country Orthopaedic Group
because of shoulder pain following a fall. (T. 295.) Plaintiff stated he had no neck pain. (Id.)
Edward Powell, M.D. administered a Kenalog/Lidocaine injection into Plaintiff’s right
shoulder, which he tolerated well. (Id.)
In April 2017, orthopedic provider, physician assistant (“PA”) Mcelheran saw Plaintiff

regarding “ongoing difficulties with his neck and back.” (T. 468-70.) Plaintiff “had numerous
questions about Disability and SSI,” but the PA advised that “obviously that is not something
we do through our office.” (T. 468.) In a treatment note co-signed by Dr. Huang, the PA
noted that Plaintiff “should probably limit his activities and not lift more than 10 pounds, avoid
walking any long distances[, and] [a]void bending and stooping.” (Id.) They opined that
Plaintiff “could work if he can follow those types of restrictions.” (Id.)
11
In June 2017, PA Mcelheran saw Plaintiff again regarding “his chronic neck and back
pain” which had only mildly improved with physical therapy. (T. 476.) A treatment, note co-
signed by Dr. Fish, stated that there were no clear surgical options for Plaintiff, and that he was
not interested in pain management or epidurals at that time despite the failure of more
conservative treatment. (T. 476.) They recommended that Plaintiff not lift more than ten
pounds, not walk more than two blocks, and avoid bending or stooping, noting that he
understood that “these are general restrictions fit for somebody with degenerative changes in
his lumbar and cervical spine[] . . . .” (T. 476.)

In July 2017, PA Mcelheran and Dr. Huang noted Plaintiff’s complaints of worsening
troubles with his back and with normal day to day activities. (T. 480-82.) Plaintiff reported
that physical therapy had “failed to improve his symptoms[,]” and stated that he was now
willing to “give a try at epidurals.” (T. 480.) The orthopedic providers declined to complete
disability paperwork requested by Plaintiff’s lawyer. They again recommended that Plaintiff
not lift more than ten pounds, not walk more than two blocks, and avoid bending or stooping,
but quite clearly referred to these as “generalized limitations.” (T. 480-82.)
The ALJ considered the assessments of PA Mcelheran, apparently adopted by Dr.
Huang or Dr. Fish, and afforded them limited weight “because they provided generalized

limitations and their findings are inconsistent with both the reported physical therapy results
and the claimant’s activities of daily living.” (T. 14-15.) The ALJ cited physical therapist
(“PT”) Auerbach’s reports (discussed further below) that Plaintiff had experienced signficant
improvement with respect to pain and functioning in his back and neck/shoulder. (T. 15, 475,
479.)

12
3. Analysis
Plaintiff contends that the ALJ failed to properly weigh the medical opinions, and the
RFC for the full range of medium work was not supported by substantial evidence. (Dkt. No.
7, at 10-13, 16-18.) The Court finds these arguments unpersuasive for the following reasons.
In considering the medical opinion evidence, the ALJ reasonably explained the weight
given to the opinions of treating providers. Dr. Roache’s found very restrictive limitations in
August 2015 and August 2016 that were inconsistent, not only with Dr. Figueroa’s
examination of Plaintiff in July 2015, but also with the reported physical therapy results and

Plaintiff’s activities of daily living. (T. 15-16.) In June 2017, the physical therapist reported to
the North Country Orthopaedic Group that Plaintiff’s back, and neck shoulder pain had been
reduced from 6/10 to 1/10, that his back function improved from 60% to 90% and that his
neck/shoulder function had improved from 40% to 90%. (T. 15, 479.) Although not an
“accepted medical source under Social Security Regulations,” “a physical therapist is an ‘other
source’ whose opinion the ALJ may consider regarding the severity of a claimant’s impairment
and how it affects the claimant’s ability to work.” Sixberry v. Colvin, 7:12-CV-1231 (GTS),
2013 WL 5310209, at *8-9 (N.D.N.Y. Sept. 20, 2013) (opinions of physical therapists are
“important and should be evaluated on key issues such as impairment severity and functional

effects”) (citations omitted). See also Acevedo v. Colvin, 20 F. Supp. 3d 377, 389 (W.D.N.Y.
2014) (“the opinions of physical therapists may constitute substantial evidence where the
opinions are well documented and supported by the medical evidence.”) (citing Social Security
Ruling 06-03p, 2006 WL 2329939, at *6 (S.S.A. Aug. 9, 2006)); Ortiz v. Saul, 1:19-CV-
00942, 2020 WL 1150213, at *7 (S.D.N.Y. Mar. 10, 2020).

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The ALJ relied on Plaintiff’s testimony that he lived with his elderly mother and “gives
her medicine, prepares her food and performs household chores such as laundry, cleaning, and
everything else that needs to be done.” (T. 14, 29, 33-34.) That level of activity is difficult to
reconcile with the severe limitations that Dr. Roache endorsed. See, e.g., Herrington v.
Berryhill, 3:18-CV-315, 2019 WL 1091385, at *7 (D. Conn. Mar. 8, 2019) (activities of daily
living, including childcare, are an appropriate factor for an ALJ to consider when assessing
claimant’s claimed symptoms and limitations) (collecting cases); Tricarico v. Colvin, 681 F.
App’x 98, 101 (2d Cir. 2017) (affirming an ALJ’s decision not to give controlling weight to the

more restrictive opinion of a treating physician based on the opinion of a consultative examiner
that plaintiff could perform sedentary work with additional limitations, and the evidence that
plaintiff was capable of various activities of daily living, including childcare).
It is also worth noting that, on January 2016, between the dates of his two Medical
Source Statements, Dr. Roache referred Plaintiff to the orthopedic specialists, not because of
chronic back and neck problems, but because of a shoulder issue following a fall. (T. 295.)
Plaintiff advised the examining orthopedist, “Dr. Roache has taken him out of work because he
says he has a backache and he has been applying for SSI disability.” (Id.)
The ALJ also afforded limited weight to the opinions of the orthopedic treatment

providers because they were not supported by Dr. Figueroa’s findings, the reported physical
therapy results, and Plaintiff’s daily activities. The ALJ also noted that PA Mcelheran
recommended restrictions that were generally appropriate for someone with degenerative
changes in the lumbar and cervical spine, but made clear that the orthopedic providers would
not complete a detailed functional assessment for the Plaintiff. (T. 14-15, 476, 480.)

14
As noted, just a few months before Dr. Roache’s first Medical Source Statement, Dr.
Figueroa examined Plaintiff and opined that he had no physical limitations, other than one
relating to his vision. That opinion supports the conclusion of the ALJ that Plaintiff was able
to perform the exertional requirements for medium work. See, e.g., Heburn v. Astrue, 6:05-
CV-1429 (LEK/DEP), 2009 WL 174941, at *8 (N.D.N.Y. Jan. 23, 2009) (the ALJ’s medium
work RFC “draws support from the findings of [a consultative examiner] who . . . opined that
plaintiff has only a mild degree of limitation and lifting, carrying, pushing, and pulling, with no
gross limitation noted in sitting, standing, walking, climbing, or bending); Sherrill B. v.

Comm’r of Soc. Sec., 5:17-CV-754 (ATB), 2018 WL 4150881, at *6–8 (N.D.N.Y. Aug. 30,
2018) (findings of consultative examiner--that, despite a limited range of motion in her cervical
and lumbar spine, plaintiff had no gross limitations with regard to sitting, standing, or walking
and “mild” limitations with regard to lifting, carrying, pushing, and pulling--was consistent
with an RFC for medium work). The ALJ reasonably afforded significant weight to Dr.
Figueroa’s opinion based on her opportunity to examine Plaintiff, professional expertise, and
program expertise while noting there was no evidence that Plaintiff had significant vision
issues. (T. 16.)
Dr. Figueroa’s opinion conflicted with the Medical Source Statements of Dr. Roach and

was somewhat inconsistent with the opinions of Plaintiff’s treating orthopedic providers. It is
the role of the ALJ to analyze and reconcile such conflicts in the medical opinion evidence.
See, e.g., Bliss v. Colvin, 13-CV-1086 (GLS/CFH), 2015 WL 457643, at *7 (N.D.N.Y., Feb. 3,
2015) (“It is the ALJ’s sole responsibility to weigh all medical evidence and resolve material
conflicts where sufficient evidence provides for such.”); Veino v. Barnhart, 312 F.3d 578, 588
(2d Cir. 2002) (“Genuine conflicts in the medical evidence are for the Commissioner to
15
resolve.”). The ALJ’s RFC analysis included a detailed consideration of the evidence
including Plaintiff’s symptoms, daily activities (including household chores and caring for his
mother), and treatment records, as well as Dr. Figueroa’s consultative opinion. (T. 13-16, 29,
33-34, 39, 249-53.) That information constitutes substantial evidence supporting the RFC
determination for medium work. See, e.g., Alston v. Colvin, 14-CV-0244, 2015 WL 5178158,
at *14 (E.D.N.Y. Sept. 3, 2015) (finding the RFC for a full range of medium work was
supported by substantial evidence where the ALJ’s conclusion was reasonable and based on a
thorough review of the record).

Plaintiff argues that Dr. Figueroa’s July 2015 report included no review of the
underlying medical reports and that the consultative examiner failed to identify Plaintiff’s
degenerative disc disease of the neck and back or order x-rays of his back and neck. (Dkt. No.
7, at 11.) The other medical opinion evidence was not generated until after Dr. Figueroa’s
examination of the Plaintiff and was not available to her, although it was fully considered by
the ALJ. Dr. Roache did not refer Plaintiff to an orthopedic specialist until January 2016, and
that referral related to a shoulder injury, and not degenerative lumbar or cervical disc disease.
Moreover, it appears from the consultative examiner’s report that the Plaintiff did not include
chronic back and neck pain among his complaints to her. (T. 249-50.) Dr. Figueroa did

perform a musculoskeletal examination of the Plaintiff and found only minor limitations with
respect to the range of motion of his cervical and lumbar spine. The orthopedic specialists did
not order diagnostic imaging of his lumbar or cervical spine until the Spring of 2017, and the
ALJ considered and discussed the results of those tests. (T. 154, 466-67, 471-74.)
Plaintiff maintains that the ALJ actually rejected Dr. Figueroa’s opinion, despite
purporting to afford it significant weight, because he rejected the only limitation found by the
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consultative examiner and classified Plaintiff’s degenerative disc disease of the neck and back
as “severe.” (Id.) Plaintiff’s later medical records from the Center for Sight support the ALJ’s
decision to discount Dr. Figueroa’s opinion that Plaintiff had mild limitation for activities
requiring fine visual acuity. (T. 251-52.). In January 2016, his treating provider noted that
poor vision affected his ability to drive safely, enjoy outdoor activities, read large and small
print, recognize faces, use a computer, watch television, and work. (T. 305.) However, by
April 2016 following cataract surgery, Plaintiff described his vision as “good” and stated it
seemed to be fairly stable. (T. 297, 317-19.) “‘Although [an] ALJ’s conclusion may not

perfectly correspond with any of the opinions of medical sources cited in his decision, he [is]
entitled to weigh all of the evidence available to make an RFC finding that [is] consistent with
the record as a whole.’” Quinn v. Colvin, 199 F. Supp. 3d 692, 712 (W.D.N.Y. 2016) (quoting
Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)).
An ALJ’s finding that an impairment is “severe” is a legal determination that the
impairment significantly limits his ability to do basic work activities. A consultative
examiner’s medical determination that a claimant does not have a particular limitation is not
necessarily incompatible with an ALJ’s legal determination that such a limitation is “severe.”
The ALJ determined that Plaintiff could perform medium work, but not work at all exertional

levels. Based on subsequent medical evidence, the ALJ could properly make an RFC
determination that may have been somewhat more limited than Dr. Figueroa’s findings of no
physical impairments might suggest. See, e.g., Beckles v. Comm’r of Soc. Sec., 18-CV-321P,
2019 WL 4140936, at *3, 5 (W.D.N.Y. Aug. 30, 2019) (the ALJ did not err by including
greater limitations in her RFC determination than those opined by consultative examiner, upon
whose opinion the ALJ partially relied) (collecting cases); Cruz v. Colvin, 3:13-CV-723
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(MAD/TWD), 2014 WL 4826684, at *14 (N.D.N.Y. Sept. 29, 2014) (An ALJ may credit some
portion of a consultative opinion, while properly declining to credit those conclusions that are
not supported by CE’s own examination findings or are inconsistent with other evidence of
record).
Plaintiff argues that the ALJ neglected to address Plaintiff’s lifting, standing, walking,
and sitting abilities in determining his RFC, and failed to cite to any specific evidence to
support the conclusion he is capable of lifting the weight corresponding to medium work.
(Dkt. No. 7, at 17-18.) As noted above, the opinion of Dr. Figueroa provided substantial

evidence to support an RFC of medium work, which is distinguished from other exertional
categories primarily by the ability to lift and carry greater weight. The ALJ’s determination
that Plaintiff could perform the full range of medium work as defined in 20 C.F.R. §
404.1567(c) also implicitly included the findings that Plaintiff could perform the other
exertional requirements, including the sitting, standing, and walking requirements of light or
sedentary work that is subsumed in medium work. (T. 13-16.) Dr. Figueroa’s opinion,
supported by the results of Plaintiff’s physical therapy, and his daily activities constitutes
substantial evidence that Plaintiff could perform the other requirements of medium work RFC,
including the implicit sitting, standing, and walking components. (T. 16.) See, e.g., Dixie v.

Commissioner of Social Sec., 5:05-CV-345 (NAM/GJD), 2008 WL 2433705, at * 12
(N.D.N.Y. June 12, 2008) (the ALJ’s decision to reject the treating physician’s opinion
regarding plaintiff’s ability to walk, stand, and sit is supported by substantial evidence,
including the consultative examiner’s finding that plaintiff had “[n]o gross limitation to sitting,
standing, walking, climbing, bending, or the use of the right upper extremity”); Schmitt v.
Commissioner of Social Sec., 5:11-CV-796 (LEK/ATB), 2012 WL 4853506, at *9 (N.D.N.Y.
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July 24, 2012) (in relying on the opinion of consultative examiner that the plaintiff, inter alia,
had no gross limitation sitting, standing, or walking, the ALJ made an appropriate function-by-
function RFC supported by substantial evidence) Report-Recommendation adopted, 2012 WL
4853067 (N.D.N.Y. Oct 11, 2012).
For the reasons above, the Court finds the ALJ’s consideration of the opinion evidence
and Plaintiff’s RFC are supported by substantial evidence. Remand is therefore not required
on these bases.
B. The ALJ Properly Evaluated Plaintiff’s Symptoms

1. Applicable Law--Evaluation of Symptoms
In evaluating a claimant’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, 18-CV-326, 2019 WL 667743, at *9
(S.D.N.Y. Feb. 19, 2019) (citing 20 C.F.R. § 404.1529(c)(3); SSR 16-3p)). SSR 16-3p
provides that the evaluation of symptoms involves a two-step process.2 2017 WL 5180304, at

*2. The Social Security Administration (“SSA”) “will first consider whether there is an
underlying medically determinable physical or mental impairment(s) that could reasonably be

2 The Court notes that the standard for evaluating subjective symptoms has not changed in the
regulations. Rather, use of the term “credibility” has been eliminated and SSR 16-3p makes it
clear that the subjective symptom evaluation is not an evaluation of the claimant’s character.
2017 WL 5180304. SSR 16-3p became applicable on March 28, 2016, prior to the ALJ’s
December 2017 decision in this case. Id.

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expected to produce an individual’s symptoms.” Id. at *3. “[O]nce an underlying physical or
mental impairment(s) that could reasonably be expected to produce an individual's symptoms
is established, [SSA will then] evaluate the intensity and persistence of those symptoms to
determine the extent to which the symptoms limit an individual's ability to perform work-
related activities . . .” Id. If SSA cannot make a disability determination or decision that is
fully favorable based solely on objective medical evidence, it will “carefully consider other
evidence in the record in reaching a conclusion about the intensity, persistence, and limiting
effects of an individual’s symptoms.” Id. at *6.

In evaluating the intensity, persistence, and limiting effects of an individual’s
symptoms, factors to be considered include: (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); SSR 16-3p, 2017
WL 5180304, at *7-8.
2. Analysis

The ALJ found that Plaintiff’s statements concerning the intensity, persistence and
limiting effects of his symptoms were “not entirely consistent with the medical evidence and
other evidence in the record[.]” (T. 14.) In so doing, the ALJ noted that Plaintiff engaged in a
wide variety of activities of daily living including providing care for his elderly mother and
using public transportation. (Id.) Plaintiff argues that the ALJ failed to properly evaluate his
subjective statements and symptoms including pain. (Dkt. No. 7, at 14-16.)
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The Court’s review of the record supports the ALJ’s finding that Plaintiff’s statements
about the intensity, persistence, and limiting effects of his symptoms were inconsistent with the
evidence of record, which did “not support a finding of disability.” (T. 14.) In weighing the
evidence, the ALJ discussed the results of Plaintiff’s lumbar and cervical MRIs, the orthopedic
treatment notes, and physical therapy reports--the most recent of which indicated substantial
improvement in Plaintiff’s pain and functioning of his back and neck/shoulder. (T. 14-16, 468,
471-76, 479.) The ALJ acknowledged Plaintiff had “severe” degenerative disc disease of the
lumbar and cervical spine, but based on his review of the evidence, did not find that such

evidence supported Plaintiff’s statements about the extent of his limitations. (T. 12-16.)
Plaintiff contends that the “ALJ’s credibility determination was based in part on his
conclusions that plaintiff can perform numerous life activities, without acknowledging the
differences between the demands of activities in the home and those of a job outside of the
home.” (Dkt. No. 7, at 15-16.) However, substantial evidence supports the ALJ’s finding that,
based on his admitted daily activities, Plaintiff retained the ability “to lift greater amounts and
sit, stand and walk for longer periods than those to which he testified.” (T. 14.) For example,
Plaintiff testified at the administrative hearing that he gives his mother her medicine, prepares
food for her, and does laundry and cleaning, noting that she does not do much around the

home. (T. 29, 33-34, 39.) He further reported to Dr. Figueroa that he cooked and cleaned
when needed, did laundry a couple of times per week, and shopped occasionally. (T. 250.)
The Court finds that the ALJ properly considered the evidence before him, and that
substantial evidence supports his evaluation of Plaintiff’s symptoms, making remand on this
issue unwarranted. It is not the role of a court to “re-weigh evidence” because “a reviewing
court ‘defers to the Commissioner’s resolution of conflicting evidence’ where that resolution is
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supported by substantial evidence. Lewis v. Colvin, 122 F. Supp. 3d 1, 7 (N.D.N.Y. 2015)
(quoting Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).
ACCORDINGLY, it is
ORDERED that the Commissioner’s decision is AFFIRMED, and further
ORDERED that Plaintiff’ s Complaint (Dkt. No. 1) is DISMISSED, and that judgment
be entered for the DEFENDANT.

Dated: March 23, 2020
Syracuse, New York | ( KB
Hon. Andrew T. Baxter
U.S. Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10312653. Public record. Not legal advice.