Turnbull v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

DAWN T.,

Plaintiff,

vs. 8:19-cv-619

(MAD)

ANDREW SAUL,

Commissioner of Social Security,

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

LAW OFFICES OF JUSTIN M. GOLDSTEIN, ESQ.

KENNETH HILLER, PLLC KENNETH R. HILLER, ESQ.

6000 North Bailey Avenue

Suite 1A

Amherst, New York 14226

Attorneys for Plaintif

SOCIAL SECURITY ADMINISTRATION ANDREEA L. LECHLEITNER, ESQ.

Office of Regional General Counsel

Region II

26 Federal Plaza

Room 3904

New York, New York 10278

Attorneys for the Commissioner

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On August 3, 2016, Plaintiff Dawn T. filed an application for Supplemental Security

Income ("SSI") and Social Security Disability Insurance Benefits ("DIB"). See Dkt. No. 8,

Administrative Transcript ("Tr.") at 182. On September 21, 2016, Plaintiff's claims were initially

denied. See id. at 77–96. Plaintiff made a timely request for a hearing before an Administrative

Law Judge ("ALJ"), who issued an unfavorable decision on June 26, 2018. See id. at 10–24.

Plaintiff made a request to review the unfavorable decision, and on March 27, 2019, the Appeals

Council denied Plaintiff's request to review. See id. at 1–6.

Plaintiff commenced this action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3)

seeking review of the Commissioner's unfavorable decision. Currently before the Court are the

parties' briefs for judgment on the pleadings. See Dkt. Nos. 12, 13.

II. BACKGROUND

Plaintiff's date of birth is December 23, 1972, which made her forty-three years old at the

time she filed for SSI and DIB on August 3, 2016. See Tr. at 182, 207. Plaintiff completed high

school at the age of thirty-six. See id. at 36. At the time of the hearing, Plaintiff had completed

college courses at SUNY Canton, with a major in finance. See id. at 38. Plaintiff indicated that

she struggled in her most recent semester at SUNY Canton, obtaining a grade point average of

2.70. See id. at 41. Plaintiff stated at the hearing that she had only attended classes in person for

one year prior to her application for SSI and DIB. See id. Plaintiff also reported that she was

currently enrolled in online classes. See id. at 39–40.

In 1998, Plaintiff received job training, specifically as a certified nursing assistant. See id.

at 35. For the fifteen years prior to her alleged onset date of disability, Plaintiff worked as a

server, waitress, and hostess at multiple restaurants, beginning in 2003. See id. at 34–36. These

restaurants included the Hanover Diner, New River View, Hronis Brothers' Baker's Restaurant,

and Applebee's. See id.

Plaintiff lived with her boyfriend and two-year old child at the time of the hearing. See id.

at 47. Plaintiff indicated that her boyfriend was at home the majority of the time, and was

diagnosed with intermittent explosive disorder. See id. at 48. Plaintiff indicated that she might

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lift her daughter from the tub, but feared dropping her, and therefore had her boyfriend lift the

child into the car. See id. at 49–50. Plaintiff further indicated that she was with her daughter "all

the time," and changed her diapers, albeit it with difficulty. See id. at 53. Plaintiff also

participated in other household chores, including emptying the dishwasher. See id. at 45. In a

typical day, Plaintiff walked around, took her pain medication, drank coffee, and watched the

news. See id. at 47. She stated that she lays down when her daughter rests. See id.

At the time of Plaintiff's hearing, she had three prior back surgeries: two laminectomies in

2002 and 2004, and a left L3-L4 microdiscectomy in 2016. See id. at 38–39. Plaintiff also stated

that she had a cervical fusion around 2006. See id. at 39. Plaintiff indicated that she is right-

handed, and has trouble reaching out with her left hand, but not her right. See id. at 43. Plaintiff

said that she could reach out directly in front of herself with her non-dominant left hand, but

found herself using her right side more than her left. See id. at 44. Plaintiff described

experiencing a shooting pain when she reached out with her left hand. See id. at 43. Plaintiff

described being able to reach overhead, but did not do so on a regular basis, and was unsure

whether she could continually repeat that behavior. See id. at 45. Plaintiff described being able to

type a paragraph or two at a time on a computer, but would then experience arm and shoulder

pain, as well as numbness in her left arm. See id. at 46, 55. Plaintiff indicated that, throughout

the day, she "rotates" between sitting and standing. See id. at 47. Plaintiff described experiencing

numbness in her hands on a daily basis that prevented her from using her hands at those times,

and experienced stiffness in her neck and back. See id. at 51. Plaintiff indicated that, after this

numbness occurs, she has no control of her hands and has dropped the items she was holding. See

id. at 55.

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In a decision dated June 26, 2018, the ALJ determined that Plaintiff was not disabled

under the Social Security Act. See id. at 10–24. Plaintiff timely filed a request for review by the

Appeals Council, see id. at 7–9, and the Appeals Council denied her request for review, rendering

the ALJ's decision the Commissioner's final decision. See id. at 1–6. In her decision, the ALJ

found the following: (1) Plaintiff had not engaged in substantial gainful activity since September

30, 2015; (2) Plaintiff's severe impairments include back impairment, neck impairment, shoulder

impairment, and obesity; (3) Plaintiff does not have an impairment or combination of impairments

that meets or medically equals the severity of one of the listed impairments; (4) Plaintiff has the

residual functional capacity ("RFC") to perform sedentary work as defined in 20 C.F.R. §§

404.1567(a) and 416.967(a) with limitations including being able to sit for six hours in an eight-

hour day and for thirty minutes at a time, stand and/or walk for two hours in an eight-hour day and

for fifteen minutes at a time, frequently reach in all directions other than overhead, frequently

handle, finger, and feel, occasionally reach overhead, and frequently rotate, extend, and flex her

cervical spine; (5) Plaintiff's RFC renders her not capable of performing past relevant work; and

(6) considering Plaintiff's age, education, work experience, and RFC, there are jobs that exist in

significant numbers in the national economy that Plaintiff can perform. See id. at 15–23.

Accordingly, the ALJ found that Plaintiff is not disabled as defined in the Social Security Act.

See id. at 23–24.

Plaintiff commenced this action for judicial review of the denial of her claims by the filing

of a complaint on May 24, 2019. See Dkt. No. 1. The parties have filed briefs for judgment on

the pleadings. See Dkt. Nos. 12, 13.

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III. DISCUSSION

A. Standard of Review

A person is disabled when he is unable "to engage in substantial gainful activity by reason

of any medically determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not less than 12

months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). There is a five-step analysis for evaluating

disability claims:

In essence, if the Commissioner determines (1) that the claimant is

not working, (2) that he has a "severe impairment," (3) that the

impairment is not one [listed in Appendix 1 of the regulations] that

conclusively requires a determination of disability, and (4) that the

claimant is not capable of continuing in his prior type of work, the

Commissioner must find him disabled if (5) there is not another

type of work the claimant can do.

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311

F.3d 468, 472 (2d Cir. 2002)) (other citation omitted). "The claimant bears the burden of proof on

the first four steps, while the Social Security Administration bears the burden on the last step." Id.

(citation omitted).

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

not determine de novo whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3);

Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Court

must examine the Administrative Transcript to ascertain whether the correct legal standards were

applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221

F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). "Substantial

evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as

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"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Richardson v. Perales, 402 U.S. 389, 401 (1971).

If supported by substantial evidence, the Commissioner's finding must be sustained "even

where substantial 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) (citing Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.

1982)) (other citations omitted). 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 and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)

(citation omitted).

B. The ALJ's Decision

At the first step of the sequential analysis, the ALJ found that Plaintiff had not engaged in

substantial gainful activity since September 30, 2015, the alleged onset date. See Tr. at 15. At

step two, the ALJ concluded that Plaintiff had the following severe impairments: back

impairment, neck impairment, shoulder impairment, and obesity. See id. at 15–17. At step three,

the ALJ determined that Plaintiff did not have an impairment or combination of impairments that

functionally equals the severity of any impairment listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1. See id. at 17. The ALJ then found that Plaintiff

has the residual functional capacity to perform sedentary work as

defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant

is able to sit for six hours in an eight-hour day and for 30 minutes at

a time, stand and/or walk for two hours in an eight-hour day and for

15 minutes at a time, frequently reach in all directions other than

overhead and frequently handle, finger, and feel. The claimant is

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able to occasionally reach overhead. She is able to frequently

rotate, extend, and flex her cervical spine.

Id. at 17–21. At step four, the ALJ found that Plaintiff was unable to perform any past relevant

work. See id. at 22. At the fifth and final step of the analysis, the ALJ solicited the testimony of a

vocational expert. See id. at 22–23. The vocational expert testified that a hypothetical individual

of Plaintiff's age, with her education, past relevant work experience, and RFC (as described

above) could perform the representative occupations of document preparer, charge account clerk,

and semiconductor bonder. See id. The ALJ relied on this testimony to determine that Plaintiff

was not disabled as defined by the Social Security Act. See id. at 23–24.

C. Analysis

Plaintiff contends that the ALJ's determination denying her SSI and DIB application

should be remanded back to the Commissioner for the following reasons: (1) the RFC finding is

unsupported by substantial evidence; and (2) the ALJ's consistency finding is unsupported by

substantial evidence. See Dkt. No. 12 at 11–25.

1. Plaintiff's RFC

Plaintiff contends that "the evidence purportedly relied upon by the ALJ does not support

the specific findings indicated in the RFC assessment." Dkt. No. 12 at 12. Plaintiff objects to the

manner in which the ALJ weighed the available medical opinions of Dr. Elke Lorensen ("Dr.

Lorensen"), nurse practitioner Georgia Blackburn ("NP Blackburn"), as well as other evidence in

the record, including a statement made by Dr. Bruce Tranmer ("Dr. Tranmer"), Plaintiff's

neurosurgeon, Plaintiff's treatment records, and Plaintiff's routine daily activities. See id. at

11–24.

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Although an ALJ's conclusion "may not perfectly correspond with any of the opinions of

medical sources cited in [the] decision," an ALJ is "entitled to weigh all of the evidence to make

an RFC finding that was consistent with the record as a whole." Matta v. Astrue, 508 Fed. Appx.

53, 56 (2d Cir. 2013) (citing Richardson v. Perales, 402 U.S. 389, 399 (1971) ("We therefore are

presented with the not uncommon situation of conflicting medical evidence. The trier of fact has

the duty to resolve that conflict")).

The treating physician rule states that "the 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.'" Burgess v. Astrue, 537 F.3d

117, 128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)). Medical opinions given by

providers who are not acceptable medical sources are not subject to the treating physician rule. 20

C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). "'Acceptable medical sources' are further defined (by

regulation) as licensed physicians, psychologists, optometrists, podiatrists, and qualified speech-

language pathologists." Genier v. Asrtue, 298 Fed. Appx. 105, 108 (2d Cir. 2008) (citing 20

C.F.R. § 416.913(a)). Nurse practitioners are not "acceptable medical sources." Social Security

Ruling ("SSR") 06-03P, 2006 WL 2329939, at *2 (Aug. 9, 2006).

When an ALJ is considering how best to weigh the opinion of a non-acceptable medical

source and other non-treating medical opinions, the ALJ must consider a number of factors,

including: (i) the frequency of the examination and the length, nature and extent of the treatment

relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of

the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other

factors brought to the Social Security Administration's attention that tend to support or contradict

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the opinion. See SSR 06-03P, 2006 WL 2329939, at *4; see also 20 C.F.R. § 404.1527(c). After

accounting for these factors, the ALJ should generally explain the weight given to opinions from

non-acceptable medical sources or at least "ensure that the discussion of the evidence in the

determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's

reasoning, when such opinions may have an effect on the outcome of the case." See SSR 06-03P,

2006 WL 2329939, at *6.

a. NP Blackburn

Plaintiff argues that the ALJ should have given more weight to the assessments of Georgia

Blackburn, a nurse practitioner, because she had a longstanding relationship with Plaintiff and

reviewed the treatment notes of Plaintiff's other practitioners. See Dkt. No. 12 at 12–14. Under

the Commissioner's regulations applicable to Plaintiff's claim, nurse practitioners are not

considered "acceptable medical sources," and their opinions are therefore not "entitled to any

particular weight[.]" Wider v. Colvin, 245 F. Supp. 3d 381, 389 (E.D.N.Y. 2017) (quotations

omitted). Nevertheless, an ALJ should consider evidence from "other sources," such as nurse

practitioners, on important issues like the severity of an impairment and any related functional

effects. See SSR 06-3p, 2006 WL 2329939, at *2; Glena v. Colvin, No. 1:15-CV-00810, 2018

WL 739096, *3 (W.D.N.Y. Feb. 6, 2018) ("Nurse practitioners are defined as 'other sources' under

the Regulations; they do not constitute 'acceptable medical sources' . . . . Nevertheless, SSR

06-3p recognizes that 'other source' opinions are important and should be evaluated on key issues

such as impairment severity and functional effects, along with the other relevant evidence in the

file") (internal quotation omitted). An ALJ may not disregard opinion evidence from a nurse

practitioner or "other source" solely because it was not authored by an acceptable medical source.

See Canales v. Comm'r of Soc. Sec., 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010) (holding that ALJ

9

erred in disregarding opinion of social worker simply because it was the opinion of an "other

source," and "not on account of its content or whether it conformed with the other evidence in the

record").

The Court has reviewed the record, and finds that the ALJ properly afforded NP

Blackburn's opinion very little weight. As noted above, NP Blackburn's opinion was not entitled

to any special weight. See Wider, 245 F. Supp. 3d at 389. Furthermore, the ALJ articulated the

specific reasons she decided to assign little weight to NP Blackburn's assessments. The ALJ first

stated that "the claimant does not have a medically determinable mental impairment, therefore,

Ms. Blackburn's opinion regarding limitations relating to psychiatric impairment are rejected." Tr.

at 21. Plaintiff states that the ALJ specifically rejected Plaintiff's non-exertional limitations for

this reason, but that "NP Blackburn does not attribute any of Plaintiff's nonexertional limitations

to a mental impairment." Dkt. No. 12 at 14. However, NP Blackburn indicated that Plaintiff

would be "unable to meet competitive standards" with respect to "complet[ing] a normal workday

and workweek without interruptions from psychologically based symptoms." Tr. at 394. While

Plaintiff argues that "the ALJ's reasoning that physical impairments can only cause exertional

limitations is contradicted by the Rulings," Dkt. No. 12 at 15, the Court cannot reconcile that

argument to fit the ALJ's interpretation of NP Blackburn's opinion regarding psychiatric

impairments. Therefore, Plaintiff's argument that "the ALJ's conclusion . . . was a factual

mistake" fails. Dkt. No. 12 at 14.

The ALJ next stated that she gave little evidentiary weight to NP Blackburn's assessment

because "[t]he claimant testified that she is able to lift and carry her two-year-old child.

Therefore, Ms. Blackburn's opinion that the claimant is only able to rarely lift ten pounds is

rejected." Tr. at 21. Plaintiff argues that "the ALJ's reasoning is based upon a mischaracterization

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of the testimony and is not a valid reason." Dkt. No. 12 at 15. Despite Plaintiff's argument that

the ALJ did not acknowledge that the child's father helped with childcare, see id., Plaintiff did, in

fact, testify at the hearing that she can and does lift her child from the tub. See Tr. at 49–50.

The ALJ also rejected NP Blackburn's assessment that Plaintiff needed fifteen minute

breaks every hour because this opinion was not supported by any objective evidence. See Tr. at

21. Plaintiff argues that the ALJ's assessment was conclusory, and that there is no medical

evidence to corroborate this assessment. See Dkt. No. 12 at 17–18. As the Commissioner argues,

NP Blackburn's opinion "is not supported by any objective evidence from Nurse Blackburn or her

colleagues at Community Health Center, which revealed that plaintiff had normal range of motion

of her spine, and denied numbness and tingling (Tr. 244, 247). These portions of her opinion

were inconsistent with the findings that plaintiff's gait was normal (albeit sometimes slowed), her

reflexes were symmetrical, straight leg raising was negative, and she was consistently in no acute

distress (Tr. 248, 325, 329, 333, 336–37)." Dkt. No. 13 at 13–14. Therefore, the Court finds that

the ALJ's determination that this assessment is unsupported by the record as a whole was

appropriate. See Domm v. Colvin, 579 Fed. Appx. 27, 28 (2d Cir. 2014) (holding that the ALJ

may discount the opinion of a treating source when the opinion is internally inconsistent with his

own treatment notes, other medical evidence in the record, and the plaintiff's testimony).

The ALJ also rejected NP Blackburn's manipulative limitations because Plaintiff "testified

that she is able to type, use a computer, and change her child's diapers, which demonstrates that

she retains good use of both hands for fine and gross manipulation. . . . [Plaintiff's] hand and

finger dexterity was intact [during the consultative examination] and she retained full grip

strength bilaterally. Moreover, the EMG and nerve conduction study performed in 2013 showed

no evidence of cervical radiculopathy or carpal tunnel syndrome." Tr. at 21. Plaintiff again

11

contends that the ALJ failed to acknowledge other treatment notes or Plaintiff's testimony. See

Dkt. No. 12 at 16. The Court finds that the ALJ's determination that this assessment is

unsupported by the record as a whole was appropriate, because the ALJ made specific references

to the record to support the rejection of these limitations, including Plaintiff's treatment records

and testimony. See Micheli v. Astrue, 501 Fed. Appx. 26, 28–29 (2d Cir. 2012) (holding that the

ALJ did not err in declining to afford controlling weight to the treating physician, where the

opinion was internally inconsistent and inconsistent with other evidence in the record).

Plaintiff also claims that the ALJ's failure to provide "any rationale as to why she rejected

NP Blackburn['s] assessment that Plaintiff would likely be absent more than 4 days per month on

average due to her impairments or treatment" requires reversal. Dkt. No. 12 at 19. The case law

that Plaintiff cites to support her position is distinguishable from the present matter. For example,

in Lesterhuis v. Colvin, the plaintiff's treating physician, whose opinion had controlling weight,

stated that the plaintiff would likely miss more than four days a month of work. See Lesterhuis v.

Colvin, 805 F.3d 83, 88 (2d Cir. 2015). Furthermore, another non-doctor therapist agreed with

that treating physician's conclusion. See id. When "the evidence of record permits us to glean the

rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony

presented to him or have explained why he considered particular evidence unpersuasive or

insufficient to lead him to a conclusion of disability." Mongeur v. Heckler, 722 F.2d 1033, 1040

(2d Cir. 1983). Moreover, as the ALJ gave little weight to the opinion of NP Blackburn, the Court

finds this failure of the ALJ was not a clear error. But see Chmura v. Berryhill, No. 16-CV-205,

2017 WL 1829728, *3 (W.D.N.Y. May 8, 2017) (remanding a case where the ALJ afforded

significant weight to the medical opinion of a doctor, but failed to provide an explanation for not

incorporating into the RFC a limitation regarding absences).

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Based on the foregoing, the Court finds that the ALJ's decision is supported by substantial

evidence regarding the weight provided to the opinion of NP Blackburn.

b. Substantial Evidence to Support the ALJ's RFC Finding

Plaintiff argues that the remaining evidence does not support the ALJ's RFC finding. See

Dkt. No. 12 at 19–24. Plaintiff contends that the opinion of Dr. Elke Lorensen, a consultative

examiner, is "too vague and incomplete to constitute substantial evidence supporting the RFC

finding." Id. at 20. Plaintiff similarly argues that the opinion of Dr. Bruce Tranmer, Plaintiff's

treating neurosurgeon, is incomplete because it "does not address the ability to handle, finger, and

feel." Id. at 23.

As stated previously, an ALJ is "entitled to weigh all of the evidence to make an RFC

finding that was consistent with the record as a whole." Matta, 508 Fed. Appx. at 56. The ALJ

has the responsibility for resolving conflicts in the evidence. See Veino v. Barnhart, 312 F. 3d

578, 588 (2d Cir. 2002) ("Genuine conflicts in the medical evidence are for the Commissioner to

resolve"). Here, the Court finds Plaintiff's arguments to be without merit.

Plaintiff argues that the ALJ improperly substituted her own opinion for that of a

physician, and therefore committed legal error. See Dkt. No. 12 at 21. However, the ALJ relied

upon the opinions of multiple physicians and treatment records throughout her decision. In the

ALJ's decision, she gave great weight to the opinion of Dr. Lorensen. See Tr. at 20. "State agency

physicians are qualified as experts in the evaluation of medical issues in disability claims. As

such, their opinions may constitute substantial evidence if they are consistent with the record as a

whole." Cobb v. Comm'r of Soc. Sec., No. 5:13-cv-591, 2014 WL 4437566, *6 (N.D.N.Y. Sept.

9, 2014) (quoting Leach ex. Rel. Murray v. Barnhart, No. 02 Civ. 3561, 2004 WL 99935, *9

(S.D.N.Y. Jan. 22, 2004)). As Dr. Lorensen's opinion "may constitute substantial evidence[,]" the

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ALJ may properly rely on it as long as the opinion is "consistent with the record as a whole." Id.

According to the ALJ, Dr. Lorensen's opinion was "supported by Dr. Lorensen's findings upon

examining the claimant." Tr. at 20. Specifically, on September 13, 2016, Dr. Lorensen evaluated

Plaintiff, finding that she had "no limitations for standing, walking, sitting, or handling small

objects, moderate limitations for bending, lifting, and reaching, and mild limitations for turning

her head." Id. Dr. Lorensen supported this conclusion by noting Plaintiff's gait was normal, she

was able to squat at 30%, she used no assistive device, she needed no help changing for the

examination or getting on and off the examination table, and she was able to rise from a chair

without difficulty. See id. The ALJ also acknowledged that Dr. Lorensen found that Plaintiff had

limited range of motion of her lumbar and cervical spine, as well as diminished sensation in her

left leg, but no strength deficits in her lower extremities, was unimpaired in her upper extremities,

and straight leg raising was negative. See id. at 20–21. Plaintiff's hand and finger dexterity was

intact and she retained full grip strength bilaterally. See id. at 21.

Furthermore, as the Commissioner argues, courts in this Circuit have found that opinions

of mild and moderate limitations support an RFC for light work, "which is even more physically

demanding than the sedentary work to which the ALJ restricted plaintiff." Dkt. No. 13 at 8;

Stacey v. Comm'r of Soc. Sec., No. 09-CV-638, 2011 WL 2357665, *6 (N.D.N.Y. May 20, 2011)

(holding that moderate limitations in lifting, prolonged sitting, prolonged standing and walking

supported RFC for light work). Therefore, contrary to Plaintiff's assertions, the Court finds that

the ALJ properly relied on Dr. Lorensen's opinion for the purposes of the RFC determination.

Dr. Lorensen's opinion was also consistent with other evidence in the record, including the

October 2016 statement made by Dr. Tranmer, Plaintiff's neurosurgeon, to which the ALJ gave

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some weight. See Tr. at 20. The ALJ assigned some weight to the opinion of Dr. Tranmer

because "it is a treating source opinion from a specialist and is supported by the clinical findings

documented in the claimant's treatment records." Id. Dr. Tranmer advised Plaintiff, after her

surgery, "not to lift more than ten pounds and not to bend at the waist to lift. He did not report

any other limitations." Id. The Court finds that it was reasonable for the ALJ to conclude that Dr.

Tranmer found no other limitations because of the absence of any indication to the contrary. See,

e.g., Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d. Cir. 1983) ("The Secretary is entitled to rely

not only on what the record says, but also on what it does not say"). Furthermore, the ALJ

referenced multiple examples to support her determination that Dr. Tranmer's opinion was

consistent with the clinical findings documented in Plaintiff's treatment records. See Tr. at 20.

For example, in November 2016, only one month after Plaintiff's surgery, her gait was non-

antalgic and she had no strength deficits in her lower extremities. See id. In May 2017, Plaintiff's

gait was non-antalgic and she was able to walk on her heels and toes, having no sensory or

strength deficits in her lower extremities, and with normal reflexes. See id. In August 2017, Dr.

Tranmer made the same notations. See id. In May 2018, Plaintiff's gait was normal, and she had

full range of motion of her cervical spine and her lumbar spine. See id. Therefore, the Court finds

that the ALJ properly evaluated the opinion of Dr. Tranmer for the purposes of the RFC finding.

The Court finds that, with respect to Plaintiff's treatment notes, substantial evidence

supports the ALJ's evaluation of Plaintiff's RFC. The ALJ acknowledged that Plaintiff had

complained of back and bilateral leg pain after her surgery, but the ALJ did not find this pain to be

so extreme as to preclude all work. See id. at 19. The ALJ noted that Plaintiff was referred to

1 As the Commissioner noted, the ALJ wrote that Dr. Tranmer "would not provide a

medical source statement and recommended that the claimant have a functional capacity

evaluation." Id.

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physical therapy, but as of August 2017, had not gone. See id. Furthermore, as the Commissioner

notes, Plaintiff was offered, but declined, a nerve root injection. See id. at 350. A claimant

declining treatment can be evaluated by an ALJ when determining whether a claimant has a

disabling impairment. See, e.g., Kleiman v. Barnhart, No. 03 Civ. 6035, 2005 WL 820261, *10

(S.D.N.Y. Apr. 8, 2005). Moreover, Plaintiff continued to request only pain medications. See Tr.

at 19. As the ALJ highlighted, there "is some suggestion in the record that the claimant was

transferring her pain medications to her boyfriend and he was selling them." Id. Evidence of drug

seeking behavior can be considered to evaluate a claimant's subjective complaints. See Anthony v.

Colvin, No. 14-CV-0848, 2015 WL 5772980, *12–13 (N.D.N.Y. Sept. 30, 2015). The Court

finds that these facts were appropriately incorporated into the ALJ 's assessment of Plaintiff's

subjective characterization of the severity of her symptoms, as well as to support her RFC. See

Guerrero v. Comm'r of Soc. Sec., No. 16-cv-3290, 2017 WL 4084051, *9 (S.D.N.Y. Sept. 13,

2017).

In further support of her RFC determination, the ALJ also relied on Plaintiff's reported

activities of daily living. See Tr. at 20. "[T]he ALJ properly relied on Plaintiff's activities as a

factor in her overall evaluation of the medical opinion evidence in and formulating Plaintiff's

RFC." Cummings v. Comm'r of Soc. Sec., No. 3:17-CV-0631, 2018 WL 2209204, *8 (N.D.N.Y.

May 14, 2018). The ALJ noted that Plaintiff informed the psychological consultative examiner

that she "is able to dress, bathe, and groom herself, cook, prepare food, clean, do laundry, shop,

manage money, drive, and use public transportation." Tr. at 19. Plaintiff also informed the

physical consultative examiner that she "is able to cook, cleans with help, does laundry, shops,

showers, and dresses herself daily." Id. Plaintiff was enrolled in college classes and pursuing a

degree in finance online, though she reported to be struggling and earned a 2.07 GPA. See id. at

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19–20. Plaintiff "is able to type and use a computer" and "changes [her] child's diaper." Id. at 20.

The ALJ concluded that Plaintiff's reported activities "suggest that she retains the ability to

perform at least sedentary exertional work and has no significant limitations for using her hands

for fine or gross motor activities." Id. Based on the foregoing, the Court finds that ALJ did not

err in her reliance on Plaintiff's activities of daily living in formulating her RFC determination.

See Cummings, 2018 WL 2209204, at *8.

Plaintiff alleges that the ALJ "does not discuss any treatment notes or other evidence

within Plaintiff's treatment history that has vocational or functional relevance," Dkt. No. 12 at 22,

and that "the ALJ essentially averaged the opinions of no limitation and occasional abilities to

come up with frequent limitations." Id. at 24. Contrary to Plaintiff's assertions, the ALJ's RFC

finding for a range of sedentary work is supported by the opinions of Drs. Lorensen and Tranmer,

Plaintiff's treatment records, and her routine daily activities. Moreover, it was reasonable for the

ALJ to find the opinions of Drs. Lorensen and Tranmer more persuasive than the opinion of NP

Blackburn.

2. ALJ's Determination that Plaintiff's Subjective Complaints Were Not Consistent

Plaintiff claims that the ALJ committed reversible error because the "ALJ's incomplete

citation to activities fails to show how Plaintiff could perform activities in a work environment on

a competitive basis, and the complete and accurate testimony is consistent with debilitating

limitations." Dkt. No. 12 at 25.

An ALJ must evaluate the intensity and persistence of a claimant's symptoms and any

functional limitations attendant to them in order to determine how they affect a claimant's capacity

for work. See 20 C.F.R. § 416.929(c)(1). Since symptoms such as pain sometimes suggest a

greater severity of impairment than can be shown by objective medical evidence alone, the ALJ

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must carefully consider any other information submitted by the claimant for its consistency with

any and all relevant evidence. See 20 C.F.R. § 416.929(c)(3). A claimant's statement(s) about the

intensity and persistence of a particular symptom, such as pain, or about the limiting effects the

symptoms have on his or her ability to work will not be rejected solely because the available

objective medical evidence does not substantiate a claimant's statement(s). See 20 C.F.R. §

416.929(c)(2). "However, the ALJ is not obliged to accept without question the credibility of

such subjective evidence." Rockwood v. Astrue, 614 F. Supp. 2d 252, 270 (N.D.N.Y. 2009)

(citing Martone v. Apfel, 70 F. Supp. 2d 145, 151 (N.D.N.Y. 1999)) (internal citation omitted).

"When such [statements are] consistent with and supported by objective clinical evidence

demonstrating that [the] claimant has a medical impairment which one could reasonably anticipate

would produce such pain, it is entitled to considerable weight." Crysler v. Astrue, 563 F. Supp. 2d

418, 439-40 (N.D.N.Y. 2008) (citations omitted).

"However, if a claimant's statements about his or her symptoms are not substantiated by

the objective medical evidence, the ALJ must consider the other evidence and make a finding on

the credibility of the individual's statements." Chicocki v. Astrue, 534 Fed. Appx. 71, 76 (2d Cir.

2013) (citation omitted). In doing so, the ALJ should consider the following:

(i) [the claimant's] daily activities;

(ii) The location, duration, frequency, and intensity of [the

claimant's] pain or other symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any

medication [the claimant] take[s] or ha[s] taken to alleviate [the

claimant's] pain or other symptoms;

(v) Treatment, other than medication, [the claimant] receive[s] or

ha[s] received for relief of [the claimant's] pain or other symptoms;

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(vi) Any measures [the claimant] use[s] or ha[s] used to relieve

pain or other symptoms . . . ; and

(vii) Other factors concerning [the claimant's] functional

limitations and restrictions due to pain or other symptoms.

Id. (citing 20 C.F.R. § 416.929(c)(3)). In doing so, the ALJ will "consider whether there are any

inconsistencies in the evidence and the extent to which there are any conflicts between [the

claimant's] statements and the rest of the evidence." 20 C.F.R. § 416.929(c)(4). The claimant's

symptoms will "be determined to diminish [their] capacity for basic work activities . . . to the

extent that [the claimant's] alleged functional limitations and restrictions due to symptoms, such

as pain, can reasonably be accepted as consistent with the objective medical evidence and other

evidence." 20 C.F.R. § 416.929(c)(4).

"An ALJ rejecting subjective testimony 'must do so explicitly and with sufficient

specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's

disbelief and whether his decision is supported by substantial evidence.'" Abdulsalam v. Comm'r

of Soc. Sec., No. 5:12-CV-1631, 2014 WL 420465, *6 (N.D.N.Y. Feb. 4, 2014) (quoting Melchior

v. Apfel, 15 F. Supp. 2d 215, 219 (N.D.N.Y. 1998)) (other citations omitted). Further, the Agency

rules provide that,

[i]n evaluating an individual's symptoms, it is not sufficient for

[the] adjudicators to make a single, conclusory statement that "the

individual's statements about his or her symptoms have been

considered" or that "the statements about the individual's

symptoms are (or are not) supported or consistent." It is also not

enough for [the] adjudicators simply to recite the factors described

in the regulations for evaluating symptoms. The determination or

decision must contain specific reasons for the weight given to the

individual's symptoms, be consistent with and supported by the

evidence, and be clearly articulated so the individual and any

subsequent reviewer can assess how the adjudicator evaluated the

individual's symptoms.

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SSR 16-3P, 2017 WL 5180304, at *10.

To the extent that Plaintiff is claiming that the ALJ failed to sufficiently support her

consistency determination, the Court disagrees. See Dkt. No. 12 at 24–25. Plaintiff first asserts

that the ALJ did not provide an accurate or complete picture of Plaintiff's daily activities, arguing

that these activities "were actually very limited." See id. at 24. As the Court outlined above,

Plaintiff's descriptions of her daily activities, compiled by the ALJ through a combination of

Plaintiff's testimony and treatment records — including various chores, Plaintiff's personal

grooming, participation in online classes, driving, use of public transportation, and some childcare

— are sufficiently supported by the record. See Tr. at 19–20. Furthermore, as the Commissioner

argues, Plaintiff reported inconsistencies in her ability to perform these activities; for example,

Plaintiff informed Dr. Lorensen that she could shop, but three days earlier, she informed Dr.

Dennis Noia, a consultative psychologist, that she needed assistance for this same task. Compare

id. at 279, with id. at 283. Therefore, the Court finds that the ALJ accurately considered Plaintiff's

daily activities for the purposes of her consistency determination.

Plaintiff also argues that her participation in daily activities does not establish that she

could engage in activities on a continuous basis. An ALJ "may rely on Plaintiff's activities of

daily living in weighing opinion evidence in the record." Coyle v. Comm'r of Soc. Sec., No. 5:17-

CV-0924, 2018 WL 3559073, *7 (N.D.N.Y. July 24, 2018) (citing Krull v. Colvin, 669 Fed.

Appx. 31, 32 (2d Cir. 2016)); see also Lamorey v. Barnhart, 158 Fed. Appx. 361, 363 (2d Cir.

2006) ("[I]t is entirely appropriate for an ALJ to consider a claimant's daily activities in assessing

her credibility and capacity to perform work-related activities") (citing 20 C.F.R. §

404.1529(c)(3)(i)). However, an ALJ may not "rely almost exclusively on [Plaintiff's daily

activities] in her assessment of opinion evidence and ultimate [RFC] determination and . . . not

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discuss other medical evidence in the record or treatment notations." Coyle, 2018 WL 3559073,

at *7. While Plaintiff contends that the ALJ "relied primarily upon Plaintiff's activities as not

supporting her allegations," Dkt. No. 12 at 24, the ALJ specifically outlined her reasons for

finding Plaintiff's subjective complaints to be inconsistent, which were not limited to Plaintiff's

daily activities. See Tr. at 19–20.

The ALJ did not determine that Plaintiff was capable of performing sustained work

activity based solely on her testimony of activities of daily living. Instead, the ALJ noted

inconsistencies between these reported activities and Plaintiff's claims of extremely disabling

symptoms that would unlikely permit even the level of activity Plaintiff reported. See Tr. at

19–20; see also Tammie S. v. Berryhill, No. 3:18-CV-174, 2019 WL 859263, *13 (N.D.N.Y. Feb.

22, 2019) ("The [activities of daily living] were one factor the ALJ considered in assessing

plaintiff's complaints of pain and credibility as the ALJ also considered the medical records from

[plaintiff's doctor and a consultative examiner]. In sum, the ALJ properly considered plaintiff's

[activities of daily living] and assessed them in combination with the other record evidence").

Nevertheless, even if the Court did agree with Plaintiff that the ALJ improperly considered

Plaintiff's daily activities, the ALJ's treatment of Plaintiff's subjective statements of pain with

regards to her daily activities "does not provide a basis for reversal because there is substantial

evidence in the record to support the conclusion that plaintiff's pain was not so severe as to

preclude gainful employment." Polidoro v. Apfel, No. 98 CIV. 2071, 1999 WL 203350, *9

(S.D.N.Y. Apr. 12, 1999).

As such, the Court finds that the ALJ properly considered Plaintiff's daily activities.

Based on the foregoing, the Court finds that the ALJ's decision finding Plaintiff's subjective

complaints to be inconsistent was supported by substantial evidence.

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IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions, and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that the Commissioner's motion for judgment on the pleadings (Dkt. No. 13) is

GRANTED; and the Court further

ORDERS that Plaintiff's motion for judgment on the pleadings (Dkt. No. 12) is DENIED;

and the Court further

ORDERS that the Clerk of the Court shall enter judgment in the Commissioner's favor

and close this case; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: April 20, 2020 Mu if 2D 5 Z ‘

Albany, New York ff bbe CF EMD tg

Mae A. D'Agostino”

U.S. District Judge

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