# Youngs v. Commissioner of Social Security

> District Court, N.D. New York · April 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10312746

## Case

- **Court:** District Court, N.D. New York
- **Decided:** April 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10312746

## How later opinions describe it (automated extraction)

- holding that the ALJ's failure to include limitations in hypothetical questions posted to the vocational expert was harmless because the only jobs the vocational expert identified accommodated those same limitations

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DANIELLE Y.,
Plaintiff,
vs. 8:19-cv-599
(MAD)
ANDREW SAUL,
Commissioner of Social Security,
Defendant.
____________________________________________
APPEARANCES: OF COUNSEL:
CONBOY, MCKAY LAW FIRM LAWRENCE D. HASSELER, ESQ.
307 State Street
Carthage, New York 13619
Attorneys for Plaintiff
SOCIAL SECURITY ADMINISTRATION SEAN SANTEN, ESQ.
Office of the General Counsel
15 Sudbury Street
Suite 625
Boston, Massachusetts 02203
Attorneys for Defendant
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On April 13, 2016, Plaintiff Danielle Y. filed an application for Social Security Disability
Insurance Benefits ("DIB"). See Dkt. No. 7, Administrative Transcript ("Tr.") at 76. On July 20,
2016, Plaintiff's claims were initially denied. Id. at 94–99. Plaintiff made a timely request for a
hearing before an Administrative Law Judge ("ALJ"), who issued an unfavorable decision on May
23, 2018. See id. at 13–27. Plaintiff made a request to review the unfavorable decision, and on
March 20, 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) seeking review of the
Commissioner's unfavorable decision. Currently before the Court are the parties' briefs for
judgment on the pleadings. See Dkt. Nos. 10, 15.
II. BACKGROUND

Plaintiff's date of birth is October 10, 1975, which made her approximately forty-one years
old at the time she filed for DIB on April 13, 2016. See Tr. at 40. Plaintiff completed high
school, taking only regular classes. See id. at 43. Plaintiff testified that she can read and write,
and do basic math calculations. See id. Plaintiff received job training, specifically as a licensed
cosmetologist and a dialysis technician. See id. at 43, 46.
Plaintiff worked for FMS New York Services as a certified clinical hemodialysis
technician from 2011 until approximately 2016. See id. at 44. Plaintiff previously worked for
Staff Leasing in the same role prior to the company being bought out by FMS New York Services.

See id. at 45. Plaintiff's prior work history was as a certified nursing assistant for River Hospital
and Claxton Hepburn Medical Center from approximately 2001 to 2008. See id. at 45, 205.
Plaintiff was also self-employed as a hairdresser in 2003. See id. at 45. Plaintiff stated that she
stopped working because she "couldn't do it anymore, keep up with it." Id. at 67.
Plaintiff lived with her husband and two adult children at the time of the hearing. See id.
at 40. Plaintiff's husband, who worked for a heating and plumbing company, provided her income
at the time of the hearing. See id. Plaintiff indicated that she had a driver's license at the time of

the hearing, drove herself as her primary method of travel, and did not take public transportation.
See id. at 41–42. Plaintiff stated that she had to use cruise control due to physical limitations. See
2
id. at 42. Plaintiff claimed that she primarily left her house for doctor's appointments. See id.
Plaintiff further stated that she could wash dishes, but that it takes her approximately an hour to
complete the task. See id. at 59. Plaintiff indicated that she cleans and that she can also cook
small meals. See id. at 60. Plaintiff stated that she could stand for approximately ten minutes at a
time, sit for approximately thirty minutes at a time, and does not walk very much. See id. at
60–61, 63. Plaintiff indicated that she had difficulty lifting her nineteen-pound grandson, and her

ability to walk up and down stairs varies by the day. See id. at 64. Plaintiff had particular
difficulty with certain chores, including vacuum cleaning, shopping, and gardening. See id. at
60–61. Plaintiff also claimed to have problems grasping items with her right hand after carpal
tunnel surgery, but that she can pick up certain items and write. See id. at 65.
At Plaintiff's hearing, she described being prevented from working a full-time job because
of her back, right leg, right shoulder, migraines, bad anxiety, a little depression, and her right foot.
See id. at 49–50. Plaintiff described that she had bulging discs with nerve damage that caused
pain to her back to the extent that she cannot do her dishes without taking a break, and that a

shower caused her discomfort. See id. at 51. Plaintiff was prescribed a muscle relaxer for her
back pain, but that only helped the numbness to her foot. See id. at 52. Plaintiff indicated that a
tumor in her right kneecap had to be removed, and a rod was subsequently placed in her fibula.
See id. at 52–53. Plaintiff's her leg pain reportedly increased after the surgery, and another rod
had to be placed in her tibia. See id. at 53. Plaintiff described constant numbness and tingling in
her right leg and foot. See id. Plaintiff indicated that she had pain in her right shoulder that
stemmed from her back pain. See id. at 54. Plaintiff also claimed that she suffered from

migraines approximately two times a week, with the most severe migraines lasting two or three
days. See id. Plaintiff further indicated she could function slightly with her mild migraines, and
3
took medication at times for them. See id. at 55. Plaintiff also claimed that she had pain in her
right foot, related to her leg pain; she also had surgery on the same foot for a heel spur. See id. at
55–56. At the time of the hearing, Plaintiff indicated that she took medication for anxiety and
depression. See id. at 56.
In a decision dated May 23, 2018, the ALJ determined that Plaintiff was not disabled
under the Social Security Act. See id. at 13–27. Plaintiff timely filed a request for review by the

Appeals Council, see id. at 12, 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 April 1,
2016; (2) Plaintiff's severe impairments include spine disorder, right knee disorder, right plantar
fasciitis, migraine headaches, asthma, and mental impairment (variously characterized); (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) with

limitations including to not kneel, crouch, crawl or climb ladders, ropes or scaffolds, to not reach
overhead, to change position for at least five minutes after sitting for forty-five minutes, to work
predominantly with objects rather than people, to not have concentrated exposure to respiratory
irritants, to not be exposed to more than moderate levels of noise, to avoid work outdoors and
work with bright or flickering flights, to not use foot controls, and to perform simple and routine
work with a low level of work pressure; (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.

4
See id. at 18–26. Accordingly, the ALJ found that Plaintiff is not disabled as defined in the Social
Security Act. See id. at 27.
Plaintiff commenced this action for judicial review of the denial of her claims by the filing
of a complaint on May 21, 2019. See Dkt. No. 1. The parties have filed briefs for judgment on
the pleadings. See Dkt. Nos. 10, 15.
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
5
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
"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 April 1, 2016, the alleged onset date. See Tr. at 18. At step two,
the ALJ concluded that Plaintiff had the following severe impairments: spine disorder, right knee
disorder, right plantar fasciitis, migraine headaches, asthma, and mental impairment (variously
characterized). See id. at 18–20. 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

6
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See id. at 20–21. The ALJ then found that
Plaintiff
has the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) except she can occasionally stoop,
balance and climb stairs and ramps, but can never kneel, crouch,
crawl or climb ladders, ropes or scaffolds. She cannot reach
overhead, but can frequently reach in all directions with both upper
extremities, and can frequently handle, finger and feel with the non-
dominant arm. She has no restrictions for handling, fingering, and
feeling with her dominant arm. She must be allowed to change
position for at least 5 minutes after sitting for 45 minutes, but
retains the ability to stay on task. She cannot tolerate concentrated
exposure to respiratory irritants. She can tolerate no more than
moderate levels of noise as defined in Appendix D of the Selected
Characteristics of Occupations 1993 Edition: should avoid work
outdoors in bright sunshine and work with bright or flickering lights
such as would be experienced in welding or cutting metals. She can
tolerate a low level of work pressure defined as work not requiring
multitasking, detailed job tasks, significant independent judgment, a
production rate pace, sharing of job tasks. She can perform simple
and routine work, which does not require more than simple, short
interactions with supervisors or coworkers; requires occasional
contact with the public, and, although the claimant may work in
proximity with others, the tasks do not require working in
conjunction with others and predominantly involve working with
objects rather than people. The claimant cannot use foot controls.
Id. at 21–25. At step four, the ALJ found that Plaintiff was unable to perform any past relevant
work. See id. at 25. At the fifth and final step of the analysis, the ALJ solicited the testimony of a
vocational expert. See id. at 26. 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 addresser and document preparer. 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 27.
7
C. Analysis
Plaintiff contends that the ALJ's determination denying her disability application should be
remanded back to the Commissioner for the following reasons: (1) the Commissioner failed to
properly evaluate Plaintiff's credibility and subjective complaints of disabling symptoms; and (2)
the Commissioner failed to properly assess Plaintiff's RFC. See Dkt. No. 10 at 16–22.
1. The ALJ's Evaluation of Plaintiff's Credibility and Subjective Symptom Description
Plaintiff claims that the ALJ committed reversible error by failing to properly utilize the

factors set forth in 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) in evaluating her credibility and
the subjective symptoms that she claimed were disabling. See id. at 16–18.
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
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 testimony is consistent with and supported by objective clinical evidence

demonstrating that claimant has a medical impairment which one could reasonably anticipate
8
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:

(1) [the claimant's] daily activities;
(2) The location, duration, frequency, and intensity of [the
claimant's] pain or other symptoms;
(3) Precipitating and aggravating factors;
(4) 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;
(5) Treatment, other than medication, [the claimant] receive[s] or
ha[s] received for relief of [the claimant's] pain or other symptoms;
(6) Any measures [the claimant] use[s] or ha[s] used to relieve pain
or other symptoms . . . ; and
(7) 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).
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"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 citation 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.
SSR 16-3P, 2017 WL 5180304, at *10.
To the extent that Plaintiff is claiming that the ALJ failed to sufficiently support her
credibility determination, the Court disagrees. See Dkt. No. 10 at 17. The ALJ found that
Plaintiff's "statements concerning the intensity, persistence and limiting effects of [her] symptoms
are not entirely consistent with the medical evidence and other evidence in the record . . . ." Tr. at
22. The ALJ cited multiple instances of such inconsistencies throughout her decision, recounting
Plaintiff's treatment history and describing Plaintiff's medical records in detail.
First, the ALJ determined that Plaintiff's allegations were inconsistent with objective
findings. See Tr. at 22–25. The ALJ determined that although "diagnostic images showed
abnormal clinical findings in her cervical, thoracic, and lumbar spine, pain management records
10
indicated that [Plaintiff] had no neurological deficits, range of motion was within normal limits in
her extremities, motor function was grossly intact in the extremities, the straight leg raise was
negative bilaterally, and gait was normal." Id. at 23. Plaintiff's "back/spine, musculoskeletal, and
neurological evaluations were normal." Id. at 23–24. Emergency room records indicated that
Plaintiff "denied experiencing any lumbar pain, joint pain, or extremity pain." Id. at 24. Plaintiff
similarly "reported to improvement in her musculoskeletal symptoms with treatment." Id.

Indeed, after undergoing right endoscopic plantar fascia release, "postoperative records indicated
that her muscle strength was normal and range of motion was normal and pain free." Id. After
undergoing a procedure to treat her endondroma, Plaintiff "stated that she was doing well
postoperatively." Id.
Furthermore, although Plaintiff complained of migraine headaches, the ALJ's review of the
medical records "indicated that she denied experiencing any neurological symptoms, including
headaches . . . [even] refus[ing] to take medication to treat her severe migraine headaches." Id.
Despite a history of asthma, the ALJ's review of the medical records "showed that [Plaintiff's]

lungs were clear." Id. Plaintiff "also smoked cigarettes during the period under review, which
contradicts her claim of a debilitating respiratory disorder." Id. at 25. Moreover, while Plaintiff
"is prescribed psychotropic medications, she denied any history of psychiatric hospitalizations,
and the record does not contain any formal counseling sessions," with medical records indicating
that Plaintiff's psychological evaluations were normal, and with Plaintiff regularly denying
experiencing any psychological symptoms. Id. Based on the record before the Court, the ALJ
was empowered to exercise discretion to "arrive at an independent judgment, in light of medical

findings and other evidence, regarding the true extent of the pain alleged by the claimant." Taylor
v. Barnhart, 83 Fed. Appx. 347, 350 (2d Cir. 2003) (internal quotation omitted).
11
Second, the ALJ determined that Plaintiff's reported activities were inconsistent with her
allegations of debilitating pain. As the ALJ noted, at Plaintiff's consultative evaluation, she stated
that "she could attend to her personal needs, cook, do laundry, go shopping and engage in leisure
activities." Tr. at 25. Furthermore, Plaintiff "drove the distance of 50 miles one-way to the
consultative evaluation." Id. Moreover, as the Commissioner alleges, there are other instances in
the record that support the ALJ's conclusion, including that Plaintiff "only went a couple times [to

physical therapy,] stating that she 'does physical therapy all day,'" mentioning that her daily
activities include "'going up and down the stairs constantly all day, taking care of the
grandchildren and their laundry' as well as doing farming chores like milking cows." Id. at 1291;
Dkt. No. 15 at 9.
In the present matter, in finding that Plaintiff could perform at the level of sedentary work,
substantial evidence supports the ALJ's evaluation of Plaintiff's subjective symptom description.
As the Commissioner correctly contends, the ALJ largely credited Plaintiff's subjective
complaints with respect to her allegations of functionally limiting pain. Although Plaintiff

protests that the ALJ erred in assessing Plaintiff's disabling symptoms, the ALJ limited Plaintiff to
a reduced range of sedentary work, thereby significantly crediting Plaintiff's subjective
complaints. See Tr. at 21–25. Indeed, throughout the ALJ's decision, she specifically
acknowledged precipitating and aggravating factors of Plaintiff's pain complaints, including her
testimony regarding difficulties washing dishes, walking, and sitting for extended periods of time.
See id. at 22. The ALJ examined records that reflected that prolonged sitting exacerbated
Plaintiff's back pain, but that this "was alleviated by postural adjustments, which I have accounted

for within the established residual functional capacity . . . ." Id. The ALJ accounted for Plaintiff's
migraine headaches "by limiting her to no more than moderate levels of noise." Id. at 24.
12
Furthermore, the ALJ accounted for Plaintiff's breathing difficulties "by including respiratory
limitations within the residual functional capacity." Id. at 25.
Plaintiff also alleges that Plaintiff's "prior work ethic" entitles her to substantial credibility.
Dkt. No. 10 at 17–18. The fact that Plaintiff's "good work history was not specifically referenced
in the ALJ's decision does not undermine the credibility assessment, given the substantial
evidence supporting the ALJ's determination." Wavercak v. Astrue, 420 Fed. Appx. 91, 94 (2d

Cir. 2011). Despite Plaintiff's assertion to the contrary, the ALJ did not ignore Plaintiff's work
history. The ALJ was well-aware of Plaintiff's previous employment, discussing it with Plaintiff
during the hearing, and considering it in her analysis when she concluded that Plaintiff's RFC
prevented her from performing past relevant work, "including nurse assistant, dialysis technician,
and hair stylist." Tr. at 25, 44–50.
While Plaintiff argues that the ALJ's decision should be rejected because the ALJ did not
specifically discuss and analyze the seven factors listed in 20 C.F.R. § 416.929(c)(3), the ALJ
provided specific reasons for her credibility determination, as outlined above. See Chicocki, 534

Fed. Appx. at 75 ("Because the ALJ thoroughly explained his credibility determination and the
record evidence permits us to glean the rationale of the ALJ's decision, the ALJ's failure to discuss
those factors not relevant to his credibility determination does not require remand"). Based on
the foregoing, the Court finds that substantial evidence supports the ALJ's evaluation of Plaintiff's
subjective symptom description.
2. Plaintiff's RFC
Plaintiff contends that the ALJ "selected portions of doctors' opinions to accept or deny
without the necessary support to do so," with respect to both Plaintiff's alleged physical and

13
mental limitations. Dkt. No. 10 at 19–22. 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")).

a. Physical medical opinion evidence
Plaintiff contends that the ALJ rejected the standing and walking limitations of Drs.
Wasicek and Majak without contrary opinion evidence. See Dkt. No. 10 at 20. The medical
records of Drs. Lorensen and Chandrasekhar reflect opinions that Plaintiff had greater abilities for
standing and walking than the opinions of Drs. Wasicek and Majak. See Tr. at 818, 1546. Dr.
Lorensen concluded that Plaintiff had "no gross limitations sitting, standing, walking, or handling
small objects with the hands. Moderate limitations bending, lifting, and reaching." Id. at 818.
Dr. Chandrasekhar indicated that, after reviewing Plaintiff's entire medical record, that she was

capable of standing and walking for six hours in an eight hour work day, and standing and
walking for five hours at one time without interruption. See id. at 1546. Dr. Chandrasekhar also

1 Plaintiff also alleges that the ALJ failed to consider medical records from Drs. Kramer,
Fish, and Damrom. See Dkt. No. 10 at 22. However, in her decision, the ALJ cited treatment
records from all three doctors. See Tr. at 19 (citing to Dr. Damron's records, Tr. at 1281, 1297);
id. at 22 (citing to Dr. Damron's records, Tr. at 1297, 1422, 1444); id. at 24 (citing to Dr. Kramer's
records, Tr. at 811, 1101, 1461; citing to Dr. Fish's records, Tr. at 693, 914; citing to Dr. Damron's
records, Tr. at 1281, 1287, 1297, 1412, 1422); id. at 25 (citing to Dr. Kramer's records, Tr. at
1459; citing to Dr. Fish's records, Tr. at 693, 911, 916). While the ALJ may not have specifically
named these doctors, she referred to their records throughout her analysis. See Brault v. Soc. Sec.
Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (citing Black v. Apfel, 143 F.3d 383, 386 (8th
Cir. 1998) ("An ALJ's failure to cite specific evidence does not indicate that such evidence was
not considered")). As such, the Court finds no error in the ALJ's consideration of this evidence.
14
explained that Plaintiff attained a good result from her right leg surgery and that physical findings
have been mild. See id. at 1542.
The ALJ also found Drs. Wasicek and Majak's opinions regarding Plaintiff's standing and
walking limitations inconsistent with Plaintiff's improvements following her surgery, her daily
activities, and her report of walking for exercise. See id. at 22. While the ALJ did state that the
restrictions of these doctors were "an overestimate of the claimant's limitations," she did so

because "the claimant acknowledged to improvement in her symptoms following surgical
intervention on December 22, 2016 and on May 4, 2017." Id. (citing to Tr. at 1422, 1444). While
Plaintiff argues that these instances were "outliers," see Dkt. No. 10 at 20, in September 2017,
Plaintiff also reported that her "[j]oint pain and difficulty walking have resolved." Tr. at 1491.
The ALJ also found that the postural limitations of Dr. Majak were inconsistent with the
claimant's "activities of daily living." Id. at 22. While Plaintiff asserts that the ALJ did not offer
any specific examples to support this rejection, see Dkt. No. 10 at 21, the ALJ did, in fact, cite to
the medical records of Dr. Lorensen for a list of Plaintiff's claimed daily activities. See Tr. at 816.

While Plaintiff does accurately allege that she reported walking as a form of exercise before her
alleged onset date of disability, see Dkt. No. 10 at 20, courts have considered reports of a
plaintiff's condition prior to an alleged onset date of disability if it is close in temporal proximity.
See Crowley v. Barnhart, 220 F. Supp. 2d 176, 181 (W.D.N.Y. 2002) ("Notably . . . three days
prior to plaintiff's alleged onset date of disability, plaintiff told his treating physician [that he
generally feels well]") (internal citation and quotation omitted). Despite Plaintiff's report being
two months prior to her alleged onset date of disability, the Court does not find that the ALJ's

consideration of this evidence to be error. Moreover, the Court agrees with the Commissioner
that even if the ALJ erred by omitting from the RFC Dr. Majak's opined postural limitations, that
15
error is harmless because the jobs identified by the vocational expert and relied upon by the ALJ
do not require postural activities. See Dkt. No. 15 at 15; DICOT 209.587-010, 1991 WL 671797
(addresser); DICOT 249.587-018, 1991 WL 672349 (document preparer); Akey v. Astrue, 467
Fed. Appx. 15, 17 (2d Cir. 2012) (holding that the ALJ's failure to include limitations in
hypothetical questions posted to the vocational expert was harmless because the only jobs the
vocational expert identified accommodated those same limitations).

The ALJ did give partial weight to the opinions of Drs. Wasicek and Majak, "because they
provided the claimant with treatment, and the other limitations they identified are generally
consistent with a range of sedentary work activity." Tr. at 22. The Court does not find that the
ALJ's analysis of these medical opinions to be inconsistent with the record as a whole.
b. Mental medical opinion evidence
Plaintiff first alleges that the ALJ improperly dismissed Dr. Oman's medical opinion "that
Plaintiff has a learning disorder that affects her abilities." Dkt. No. 10 at 21. Plaintiff alleges that
the ALJ "decide[d] [this] based upon her own personal opinion." Id. However, the ALJ provided

support for this determination, including that Plaintiff "completed high school in regular
education, received training as a certified nurse's assistant, and worked in semi-skilled positions."
Tr. at 20. Furthermore, the ALJ stated that "what the impairment is called is of no real
consequence; rather how a given impairment affects mental functioning is the central inquiry
under the Act. By finding the claimant to have a 'severe' mental impairment however
characterized, all symptoms affecting her mental functioning have been considered. It is the
impact of the disease, and in particular any limitations it may impose upon the claimant's ability to

perform basic work functions, that is pivotal to the disability inquiry." Id.

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In the ALJ's decision, she gave great weight to the opinion of State Agency medical
consultant Dr. Walker. See id. at 23. "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.

Walker's opinion "may constitute substantial evidence[,]" the ALJ may validly rely on it as long as
the opinion is "consistent with the record as a whole." Id. According to the ALJ, Dr. Walker's
opinion was "consistent with the dearth of abnormal findings and with the limited formal mental
health treatment notes in record." Tr. at 23. After a review of the complete record, Dr. Walker
found that Dr. Oman's "opinion is an overestimate of the severity of the individual's
restrictions/limitations." Id. at 89. Dr. Walker supported this conclusion by noting
inconsistencies in Plaintiff's statements about her activities and limitations, that Plaintiff reported
no symptoms of anxiety, depression, or mania to her primary care physician for periods of time,

and that she had no in-patient or outpatient psychiatric treatment history. See id. at 88. Therefore,
the ALJ validly relied on evidence consistent with the record when she decided not to credit Dr.
Oman's medical opinion with regards to Plaintiff having a learned disorder that affected her
abilities. See 20 C.F.R. § 404.1527(c)(4).
Plaintiff also argues that the ALJ erred in rejecting Dr. Oman's marked restrictions within
his psychiatric evaluation. See Dkt. No. 10 at 21–22. Plaintiff alleges that the ALJ "should have
another mental health professional's opinion that contradicts Dr. Oman's findings." Id. at 22. As

stated previously, the ALJ gave great weight to the opinion of Dr. Walker, who found that
Plaintiff's lack of specialized treatment for her mental health problems was inconsistent with
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allegations of disabling mental limitations. See Tr. at 88. Furthermore, while Plaintiff argues that
she had to forego needed treatment "due to financial and insurance restraints," Dkt. No. 10 at 22,
Plaintiff did not direct the Court to any part of the record that supports Plaintiff declining a
recommendation for mental health treatment for that reason. See Dkt. No. 15 at 18. Furthermore,
as the Commissioner argues, while Plaintiff identified anxiety and depression as impairments that
affected her ability to work, as Dr. Walker noted, Plaintiff denied anxiety and depression in her

primary care visits at times. See Tr. at 49–50, 88, 535–63; Dkt. No. 15 at 18. While Plaintiff does
attribute the failure to seek treatment to lack of financial ability or insurance, "that does not alter
the fact that the contemporaneous notes of physicians claimant did see during the relevant period
indicate that she did not complain" of the alleged impairments. Reynolds v. Colvin, 570 Fed.
Appx. 45, 49 (2d Cir. 2014).
As such, the Court finds that Plaintiff failed to identify any error with regards to the ALJ's
discussion of the physical and mental medical opinion evidence in the present matter.
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. 15) is
GRANTED; and the Court further
ORDERS that Plaintiff's motion for judgment on the pleadings (Dkt. No. 10) 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

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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 14, 2020 J) te DP Uf -
Albany, New York : CT GRD ez
Mae A. D’ Agostino”
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10312746. Public record. Not legal advice.