Wells v. Commissioner of Social Security

NOUNRITTHEEDR SNT DAITSETSR DICISTT ORFIC NTE CWO YUORRTK

______________________________________________________________________

MELANIE W.,

Plaintiff,

v. 5:19-CV-724

(ATB)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

______________________________________________________________________

HOWARD D. OLINSKY, ESQ., for Plaintiff

MICHAEL L. HENRY, Special Asst. U.S. Attorney for Defendant

ANDREW T. BAXTER, U.S. Magistrate Judge

MEMORANDUM-DECISION and ORDER

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

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

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

Local Rule 73.1, and the consent of the parties. (Dkt. Nos. 4, 7).

I. PROCEDURAL HISTORY

Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on March

2, 2017, and an application for Supplemental Security Income (“SSI”) on March 16,

2017, each alleging disability beginning May 1, 2013. (Administrative Transcript (“T”)

170-90, 204). Plaintiff’s applications were denied initially on May 16, 2017. (T. 110-

11). Plaintiff requested a hearing, which was held before Administrative Law Judge

(“ALJ”) Jude B. Mulvey on January 22, 2019. (T. 40-76). At the hearing, plaintiff

amended her onset date to November 22, 2016. (T. 46). The ALJ then heard testimony

from plaintiff, as well as vocational expert (“VE”) Esperanza Distefano. (T. 46-75).

On February 5, 2019, the ALJ issued an order denying plaintiff’s claims. (T. 19-39).

The ALJ’s decision became the Commissioner’s final decision when the Appeals

Council denied plaintiff’s request for review on April 25, 2019. (T. 1-4).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

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

disability benefits must establish that he is “unable to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which

can be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In

addition, the plaintiff’s

physical or mental impairment or impairments [must be] of such severity

that he is not only unable to do his previous work but cannot, considering

his age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy, regardless

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

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

hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step process, set forth in 20 C.F.R. sections

404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.

First, the [Commissioner] considers whether the claimant is currently

engaged in substantial gainful activity. If he is not, the [Commissioner]

next considers whether the claimant has a “severe impairment” which

significantly limits his physical or mental ability to do basic work

activities. If the claimant suffers such an impairment, the third inquiry is

whether, based solely on medical evidence, the claimant has an impairment

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[Commissioner] will consider him disabled without considering vocational

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

claimant does not have a listed impairment, the fourth inquiry is whether,

despite the claimant’s severe impairment, he has the residual functional

capacity to perform his past work. Finally, if the claimant is unable to

perform his past work, the [Commissioner] then determines whether there

is other work which the claimant can perform.

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

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

However, if the plaintiff establishes that her impairment prevents her from performing

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

B. Scope of Review

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

whether the correct legal standards were applied and whether substantial evidence

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

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

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

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

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

administrative record. Id. However, this standard is a very deferential standard of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. FACTS

Plaintiff was fifty-one years old on the date of the administrative hearing. (T.

46). She lived in a mobile home with her mother and two adult children. (T. 47).

Plaintiff completed school through the ninth grade, and obtained a GED. (Id.). She had

a driver’s license, but did not drive long distances because it aggravated her back pain.

(T. 48, 58-59). Prior to applying for disability, plaintiff worked as a cleaner, cashier,

and child care provider. (T. 49-50).

Plaintiff testified that she could not work, primarily due to her back pain and the

side effects of her medication. (T. 51). Plaintiff experienced pain in her back,

shoulders, and legs. (T. 51-52). The medication she took for her symptoms caused her

disorientation, fatigue, and memory deficits. (Id.). She slept three to four hours per

night, and approximately four to five hours during the day. (T. 52). Her children took

responsibility for household duties, including cooking and cleaning. (Id.). She did not

like to leave the house, because the air aggravated her lungs. (T. 55-56). When

plaintiff did go shopping, she brought one of her children with her. (T. 53). Plaintiff

usually watched television during the day, and often fell asleep while doing so. (T. 52-

53).

Plaintiff’s pain limited her from sitting in a chair for more than ten to fifteen

minutes at a time. (T. 54). She could stand for approximately five minutes. (T. 54).

Although she could lift an object weighing up to eight pounds, plaintiff could not carry

it far. (Id.). Plaintiff also testified about her limitations in climbing stairs and reaching.

(T. 54-55). When asked about her neck, plaintiff stated that she could turn her head and

look down. (T. 56). Plaintiff used a cane, however it was not prescribed to her by a

physician. (T. 58).

IV. THE ALJ’S DECISION

After reviewing the procedural history of the plaintiff’s application and stating

the applicable law, the ALJ found that plaintiff had not engaged in substantial gainful

activity (“SGA”) since her disability onset date. (T. 24). At step two of the sequential

evaluation, the ALJ found that plaintiff had the following severe impairments: adhesive

capsulitis of the right shoulder, chronic obstructive pulmonary disease, degenerative

disk disease, diabetes, a gastrointestinal impairment, and a mental impairment. (T. 25).

At step three of the evaluation, the ALJ found that plaintiff did not have an impairment

or combination of impairments that met or medically equaled the severity of a Listed

Impairment. (T. 25-26).

At step four, the ALJ found that plaintiff had the RFC for light work as defined

in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she was limited to simple,

routine and repetitive work, and should avoid concentrated exposure to irritants such as

fumes, odors, dust, gases or poorly ventilated areas. (T. 27). She could only

occasionally kneel, crouch, stoop, crawl, handle and finger; never climb ladders, ropes,

or scaffolds; and frequently reach. (Id.).

Next, the ALJ found that plaintiff was unable to perform any past relevant work.

(T. 32). However, at step five, using the Medical Vocational Guidelines as a

“framework,” and the VE’s testimony, the ALJ found that plaintiff was “capable of

making a successful adjustment to other work that exists in significant numbers in the

national economy.” (T. 33). Thus, the ALJ found that plaintiff was not disabled. (Id.).

V. ISSUES IN CONTENTION

Plaintiff raises two arguments:

1. The ALJ failed to properly analyze the opinion of Dr. Perla under the

treating physician rule. (Plaintiff’s Brief (“Pl.’s Br.”) at 9-13) (Dkt. No. 9).

2. The ALJ failed to properly account for plaintiff’s cervical spine limitations

as opined by consultative examiner Dr. Lorensen. (Pl.’s Br. at 13-15).

The Commissioner contends that the ALJ’s opinion analysis, and ultimate RFC

determination, are supported by substantial evidence. (Defendant’s Brief (“Def.’s Br.”)

at 4-8) (Dkt. No. 10). For the following reasons, this court agrees with the defendant

and will affirm the Commissioner’s decision.

VI. RFC/WEIGHT OF THE EVIDENCE/TREATING PHYSICIAN

A. Legal Standards

1. RFC

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

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

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

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

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

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

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

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

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

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

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

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

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

§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)

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

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

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

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

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

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

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

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

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

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

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

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

2. Weight of the Evidence/Treating Physician

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

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

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

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

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

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

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

the plaintiff is “disabled” under the Act. Id.

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

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

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

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

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

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

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

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

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

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

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

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

four Burgess factors: “(1) the frequen[cy], length, nature, and extent of treatment; (2)

the amount of medical evidence supporting the opinion; (3) the consistency of the

opinion with the remaining medical evidence; and (4) whether the physician is a

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

Astrue, 537 F. 3d 117, 120 (2d Cir. 2008)). “[T]he ALJ must ‘give good reasons in [its]

notice of determination or decision for the weight [it gives the] treating source’s

[medical] opinion.’ ” Id. at 96 (citing Halloran v. Barnhart, 362 F.3d at 32). Should an

ALJ assign less than controlling weight to a treating physician’s opinion and fail to

consider the above-mentioned factors, this is a procedural error. Id. It is impossible to

conclude that the error is harmless unless a “searching review of the record . . . assures

us that the substance of the treating physician rule was not traversed.” Id.

1. Dr. Perla’s Medical Opinion

Plaintiff first contends that the ALJ failed to properly weigh the opinion of

plaintiff’s cardiologist, Charles Perla, M.D. (Pl.’s Br. at 9-13). Specifically, plaintiff

argues that the ALJ neglected to apply the treating physician rule in his evaluation of

Dr. Perla’s opinion, including the ALJ’s obligation to provide “good reason” for

affording it less-than-controlling weight. (Id.). The Commissioner contends that the

ALJ’s evaluation of Dr. Perla’s medical opinion is supported by substantial evidence.

(Def.’s Br. at 4-8).

On February 20, 2018, plaintiff re-commenced treatment at Cardiovascular

Group of Syracuse (“CGS”) with Dr. Perla. (T. 835).1 Plaintiff presented to Dr. Perla

with complaints of anginal symptoms occurring with exertion, “[i.e.] lifting, walking,

and being in the cold weather.” (Id.). Upon examination, plaintiff appeared healthy

and well developed; she exhibited no signs of acute distress. (T. 838). Plaintiff walked

with a normal gait and displayed good muscle tone and strength. (Id.). Her neurologic

examination was unremarkable. (Id.). Dr. Perla’s progress note also references

plaintiff’s normal electrocardiogram test results from 2017 and 2018. (Id.).

Based on his cardiovascular evaluation of plaintiff, Dr. Perla ordered a coronary

angiogram and recommended a potential cardiac revascularization. (T. 839-40). The

procedure was performed on March 5, 2018 at St. Joseph’s Hospital, by Matthew

1According to Dr. Perla’s contemporaneous progress note, plaintiff was last seen at CGS in

2015, after which she began treating with a different cardiology practice. (T. 835).

with various post-operative directives at the hospital, immediately after the procedure.

(T. 777).

Plaintiff returned to visit Dr. Perla for a follow-up evaluation on April 9, 2018.

(T. 842). At that time, plaintiff denied chest pain, dyspnea, palpitations or syncope.

(Id.). Dr. Perla noted that plaintiff “still continues to smoke.” (Id.). He also referenced

plaintiff’s “suboptimally controlled diabetes.” (Id.). Upon physical examination,

plaintiff appeared healthy, well developed, and in no acute distress. (T. 845). She

walked with a normal gait, and exhibited good muscle strength and tone. (Id.). Her

neurologic exam revealed “motor and sensory grossly intact and bilaterally equal.”

(Id.). Based on the results of his examination, Dr. Perla recommended that plaintiff

continue with her current treatment regimen and return in four months for a follow-up

visit. (T. 846).

Plaintiff returned to CGS on August 24, 2018, at which time she was seen by

nurse practitioner (“NP”) Michelle Depalmo. At that time, plaintiff denied chest pain,

shortness of breath, palpitations, edema, and/or dizziness. (T. 847). She admitted that

she continued to smoke cigarettes, and stated that she was unable to stop due to various

stress factors in her life. (Id.). Plaintiff further reported that she had been experiencing

right upper abdominal pain for the past six months, for which she was treating with a

gastroenterologist. (Id.). Upon examination, plaintiff appeared healthy and well

developed, but in obvious discomfort. (T. 850). Cardiovascular and musculoskeletal

examinations revealed normal findings. (Id.). Plaintiff was observed to walk with a

softness and moderate tenderness in plaintiff’s right upper abdomen. (Id.). Plaintiff

was instructed to return in four months to follow up with Dr. Perla. (T. 851). NP

Depalmo also encouraged plaintiff to continue treatment for her abdominal pain. (Id.).

On January 8, 2019, Dr. Perla prepared a Medical Source Statement (“MSS”) on

behalf of plaintiff. (T. 925-28). Among other things, Dr. Perla noted that

gastrointestinal upset was a possible side effect of the Plavix he prescribed her. (T.

925). In rendering his opinion regarding plaintiff’s functional limitations, Dr. Perla

also noted that “patient sees an orthopedist for disc disease[.]” (T. 926). Nevertheless,

Dr. Perla opined that plaintiff was limited to sitting for 20 minutes at a time, and for no

more than four hours in an eight-hour workday. (Id.). He further opined that plaintiff

was limited to standing for 15 minutes at a time, for less than two hours in an eight-

hour work day. (Id.). Plaintiff could rarely twist, stoop/bend, crouch/squat, or climb

stairs, and she could never climb ladders. (Id.). With respect to lifting and carrying,

Dr. Perla opined that plaintiff could occasionally lift or carry up to ten pounds, could

rarely lift or carry twenty pounds, and could never lift or carry fifty pounds. (Id.).

With respect to her cervical spine, Dr. Perla opined that plaintiff could

frequently2 perform the referenced postural activities, including looking down, turning

her head right or left, looking up, and holding her head in a static position. (T. 927).

2According to the MSS, “ ‘frequently’ means 34% to 66% of an 8-hour workday.” (T. 926).

However, the court notes that the MSS limits the writer’s options to “never,” “rarely,” “occasionally,”

and “frequently.” (Id.). In other words, there is no opportunity for the writer to mark that an individual

is “unlimited” in the referenced function.

hands, perform fine manipulations with her fingers, and reach in all directions with her

arms. (Id.). According to Dr. Perla, plaintiff’s impairments would cause her to be off

task more than 20% of the time during an eight-hour workday, and absent from work

more than four days per month. (Id.).

The ALJ specifically discussed Dr. Perla’s opinion in his disability decision,

giving it “partial weight.” (T. 31). In his evaluation, the ALJ acknowledged that Dr.

Perla is an acceptable medical source with specialized experience in cardiology. (T.

31). However, the ALJ also stated that Dr. Perla did not treat plaintiff for her non-

cardiac impairments, nor did he provide specific clinical findings to support his

conclusions. (Id.). The ALJ then cited to various inconsistencies between Dr. Perla’s

restrictive functional limitations and his reported findings upon physical examination.

(Id.). The ALJ also noted inconsistencies between Dr. Perla’s opinion and other

medical evidence of record, as well as plaintiff’s activities of daily living. (Id.). Last,

the ALJ discredited Dr. Perla’s conclusion regarding the frequency of plaintiff’s time

off-task and absenteeism. (Id.).

At the outset, Dr. Perla was not a treating physician whose opinion was entitled

to controlling weight. According to the regulations, a treating physician is “your own

acceptable medical source who provides you, or has provided you, with medical

treatment or evaluation and who has, or has had, an ongoing treatment relationship with

you.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ongoing treatment relationship

exists “when the medical evidence establishes that you see, or have seen, the source

and/or evaluation required for your medical condition(s).” Id. The Second Circuit has

further clarified that an ALJ gives a treating physician controlling weight because of

the “continuity of treatment he provides and the doctor/patient relationship he

develops[.]” Weathers v. Colvin, No. 3:15-CV-575 (FJS), 2017 WL 177649, at *5

(N.D.N.Y. Jan. 17, 2017) (citing Mongeur v. Heckler, 722 F.2d at 1039 n.2). Thus,

“courts have consistently held that a physician who examines a patient 1–3 times during

a limited period does not typically have the kind of relationship that qualifies as a

treating physician relationship for the purposes of the social security regulations.”

Pritchett v. Berryhill, No. 17-CV-719, 2018 WL 3045096, at *5 (W.D.N.Y. June 20,

2018) (listing cases).

The record reflects that Dr. Perla only examined plaintiff on two occasions

during the alleged disability period – once for an initial examination, and again for a

follow-up evaluation after a procedure performed by a different cardiologist. Although

there is evidence that Dr. Perla may have had a past treating relationship with plaintiff,

the administrative record does not include any progress notes by Dr. Perla that predate

2018. In any event, it is clear that plaintiff’s prior treating relationship with Dr. Perla

existed well before the disability onset date. Thus, despite the ALJ’s passing reference

to Dr. Perla as plaintiff’s treating cardiologist, the treating physician rule was not

implicated because Dr. Perla did not meet the requirements to be a treating physician.

See id. at *6 (“Courts may conclude that a physician is not a treating source despite the

fact that the ALJ “casually mentions” that he is a treating source.”).

acceptable medical source and it was incumbent upon the ALJ to consider his opinion

and determine what weight to assign it, using the applicable regulatory factors. See

C.F.R. §§ 404.1527(c), 416.927(c) (“Regardless of its source, we will evaluate every

medical opinion we receive. Unless we give a treating source’s opinion controlling

weight under paragraph (c)(2) of this section, we consider all of the following factors in

deciding the weight we give to any medical opinion.”). Here, the ALJ provided

sufficient analysis and reasoning for the partial weight attributed to Dr. Perla’s opinion.

In addition to considering Dr. Perla’s specialization and treatment relationship with the

plaintiff, the ALJ properly determined that Dr. Perla’s restrictive exertional limitations

were inconsistent with and unsupported by his own unremarkable findings upon

physical examination. (T. 31). On the two occasions he examined plaintiff, Dr. Perla

found that she walked with a normal gait, exhibited good muscle tone and strength, had

unremarkable neurological findings, and otherwise exhibited no symptoms of acute

distress. (T. 838, 845). Dr. Perla did not specifically examine plaintiff’s functional

capacity to sit, stand, or walk, however his progress notes lack objective evidence that

would support the restrictive exertional limitations contained in his medical opinion.

The inconsistencies between Dr. Perla’s treatment notes and his medical opinion were

properly considered by the ALJ. See Woodmancy v. Colvin, 577 F. App’x 72, 75 (2d

Cir 2014) (“[T]he ALJ acted within her discretion in according the [medical] opinions

little weight because record evidence of unremarkable clinical findings contradicted or

failed to support the limitations conclusions in these opinions.”).

Dr. Perla’s opinion and other substantial evidence in the record. The ALJ provided an

extensive review of the medical evidence, thoroughly evaluating plaintiff’s treatment

history during the alleged period of disability. (T. 28-31). In doing so, the ALJ

referenced imaging results showing mild degenerative disc disease of the cervical and

lumbar spine, mild degenerative changes to the hips and left knee, and moderate, at

most, degenerative changes to the right acromioclavicular joint. (T. 28). The ALJ

acknowledged that some of plaintiff’s physical examinations were positive for joint

tenderness and reduced range of motion of the spine, shoulder, and knees. (T. 28).

However, the ALJ determined that the totality of the evidence revealed plaintiff did not

exhibit any “ongoing fatigue, distress, gait abnormalities, reduced range of motion of

her joints, tenderness in her joints, [or] strength or sensation deficits. (Id.). Plaintiff’s

primary care provider often noted her “good” posture and ability to “stand[ ]

comfortably erect and sit[ ] comfortably. (T. 610, 614, 619, 628, 634, 639, 959, 967,

974). Plaintiff testified that her use of a cane was a personal choice, and not prescribed

by any health provider. The lack of its medical necessity was confirmed by

consultative examiner Dr. Lorensen, who observed that plaintiff’s gait was even and

steady, even without the cane. (T. 530).

It was, furthermore, within the ALJ’s discretion to reject Dr. Perla’s estimates of

absenteeism and time off-task. The ALJ not only pointed out the lack of evidence

supporting such extreme limitations, but also cited to plaintiff’s “consistent lack of

attention, concentration, or memory deficits during most examinations,” as well as her

v. Comm’r of Soc. Sec., No. 5:11-CV-1425 (TJM), 2013 WL 1180963, at *5 (N.D.N.Y.

Mar. 20, 2013) (ALJ properly rejected physician’s opinion regarding plaintiff’s

absenteeism rate of four days a month, despite some evidence to the contrary, where

“objective medical evidence in the record provid[ed] substantial evidence to support the

ALJ’s finding that [the opinion] is speculative.”); Palmer v. Berryhill, No. 17-CV-

6260, 2018 WL 3537074, at *5 (W.D.N.Y. July 23, 2018) (ALJ was entitled to discount

nurse practitioner and physician’s opinion that plaintiff would be off task more than

20% of an eight-hour workday and absent from work more than four days per month as

speculative, and not based on any documented observation or evaluation, “because the

SSA’s regulations authorize [the ALJ] to discount an opinion that lacks support,

particularly medical signs and laboratory findings, and is not well explained.”).

For the reasons stated, the ALJ properly evaluated Dr. Perla’s medical opinion

and remand is not warranted on this basis.

2. Plaintiff’s Cervical Spine Limitations

Plaintiff next argues that the ALJ failed to properly incorporate the cervical spine

limitations opined by consultative examiner Elke Lorensen, M.D. into the modified

RFC for light work. (Pl.’s Br. at 13-14). The Commissioner argues that the ALJ’s

RFC properly accounts for plaintiff’s neck limitations. (Def.’s Br. at 8).

On April 27, 2017, Elke Lorensen, M.D. performed a consultative examination of

plaintiff. (T. 528-32). Upon physical examination, Dr. Lorensen noted that plaintiff

appeared in no acute distress, and walked with a gait that was slow but even, steady,

table when performing lumbar spine ranges of motion. (Id.). She needed no help

changing for the exam or getting on and off the exam table. (Id.).Plaintiff exhibited full

range of motion in her elbows, forearms, wrists and ankles. (T. 531). Dr. Lorensen

observed less-than-full range of motion in plaintiff’s cervical spine, lumbar spine,

shoulders, hips and knees. (Id.). Dr. Lorensen further identified four positive trigger

points for fibromyalgia. (T. 531). Plaintiff exhibited normal neurologic findings, with

full strength in the upper and lower extremities. (Id.). She also exhibited intact hand

and finger dexterity, and full grip strength in both hands. (Id.).

Based on her physical examination and review of plaintiff’s shoulder and knee

imaging, Dr. Lorensen opined that plaintiff had “no gross limitation for sitting,

standing, walking, and handling small objects with the hands.” (T. 532). She further

opined that plaintiff had moderate limitations for bending, lifting, reaching, and turning

the head.” (Id.). Last, she determined that plaintiff should avoid heights, operating

machinery, smoke, dust, and other respiratory irritants. (Id.).

The ALJ explicitly considered Dr. Lorensen’s medical opinion in his disability

decision, giving it “partial weight.” (T. 31). In evaluating Dr. Lorensen’s opinion, the

ALJ recognized her as an acceptable medical source who examined the plaintiff on one

occasion. (Id.). The ALJ then went into a detailed assessment of the opinions by Dr.

Lorensen that he found were supported by substantial evidence in the record. For

example, Dr. Lorensen’s conclusion that plaintiff had no limitations in standing,

walking, and sitting was consistent with plaintiff’s lack of difficulty with such exertions

exercise and shop. (Id.). The ALJ also found Dr. Lorensen’s opined moderate

limitations in lifting and bending to be consistent with plaintiff’s history of

degenerative disc disease, and testimony regarding her chronic pain. (Id.). Last, the

ALJ found Dr. Lorensen’s limitation regarding respiratory irritants to be consistent with

plaintiff’s history of chronic obstructive pulmonary disease. (Id.).

The ALJ also discussed the opinions by Dr. Lorensen that he determined lacked

support in the overall record. Specifically, the ALJ determined that Dr. Lorensen’s

opinion plaintiff was moderately limited in reaching to be inconsistent with her lack of

range of motion deficits involving her upper extremities during most examinations, as

well as her most recent shoulder x-ray, which was normal. (Id.). The ALJ also found

Dr. Lorensen’s opinion that plaintiff was moderately limited in turning her head to be

inconsistent with plaintiff’s testimony, and Dr. Perla’s opinion. (T. 31).

Plaintiff contends that the ALJ erred in failing to incorporate Dr. Lorensen’s

cervical spine limitations into plaintiff”s RFC, leaving “such opined limitations in her

neck . . . unaccounted for entirely.” (Pl.’s Br. at 14). Plaintiff further argues that it was

improper for the ALJ to assign “partial” weight to the two medical opinions of record,

and use them to discredit each other relative to plaintiff’s cervical spine limitations.

(Id.). Last, plaintiff argues that the ALJ erred in failing to incorporate plaintiff’s

cervical spine limitations in his hypothetical to the VE.

To plaintiff’s point, some courts have acknowledged circumstances where the

“limited” or “partial” weight afforded to every medical opinion of record by an ALJ

CV-935, 2019 WL 5781860, at *4 (W.D.N.Y. Nov. 6, 2019) (ALJ gave vague “partial”

and “little” weight to every opinion, including the only functional physical opinion of

record, rendering it unclear upon what evidence the ALJ based her specific RFC); King

v. Saul, No. 18-CV-7274, 2020 WL 1536337, at *4 (E.D.N.Y. Mar. 31, 2020) (ALJ

arbitrarily substituted her own judgment for competent medical opinion in giving

“partial” or “no” weight to every medical opinion of record, but did not find that any

conflicting opinion deserved controlling weight).

However, “[t]here is a difference between [an ALJ] making independent findings

and sorting through other sources’ findings in a way that is consistent with the overall

record.” Deubell v. Comm’r of Soc. Sec., 2019 WL 5781860, at *4. “In formulating a

plaintiff’s RFC, an ALJ does not have to adhere to the entirety of one medical source’s

opinion.” Christina M.F. v. Berryhill, No. 5:17-CV-0840 (GTS), 2019 WL 147463, at

*6-7 (N.D.N.Y. Jan. 9, 2019) (citing Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir.

2013) (“Although the ALJ’s conclusion may not perfectly correspond with any of the

opinions of medical sources cited in his decision, he was entitled to weigh all of the

evidence available to make an RFC finding that was consistent with the record as a

whole.”); see also Quinn v. Colvin, 199 F. Supp. 3d 692, 712 (W.D.N.Y. 2016)

(“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.”); Wilburn v. Colvin, No. 15-CV-0058 (TWD), 2016 WL 1237789, at *4

physician’s limitations into the RFC where he afforded the opinion “significant but not

great weight”).

In this case, the ALJ did not err in evaluating the opinion evidence of record.

This is particularly true regarding the ALJ’s RFC determination as it relates to

plaintiff’s cervical spine, which finds support in the opinion evidence as well as other

substantial evidence of record. Plaintiff makes much of the ALJ’s distinction between

Dr. Perla and Dr. Lorensen’s opinions regarding plaintiff’s neck,3 arguing that the

opinions are, in fact, consistent with each other. However, the law is not clear as to

whether a moderate limitation is synonymous with a finding that an individual can

engage in frequent activity. See Brittany F. v. Comm’r of Soc. Sec., No. 1:18-CV-1365

(ATB), 2020 WL 838076, at *9 (N.D.N.Y. Feb. 19, 2020) (comparing cases). Thus,

this court cannot say that the ALJ erred in interpreting Dr. Lorensen’s opinion for

moderate neck limitations to be more restrictive than Dr. Perla’s opinion that plaintiff

could frequently engage in the same activity.

Nor did the ALJ err in giving greater weight to Dr. Perla’s less restrictive

opinion, as it was consistent with the overall record and supported by substantial

evidence. Despite the limited range of motion evaluated by Dr. Lorensen at his one-

time consultative examination, plaintiff’s medical records consistently revealed

3As previously discussed, Dr. Perla opined that plaintiff could “frequently” perform the listed

postural activities including looking up and down, turning her head, and holding her head in a static

position. (T. 927). Dr. Lorensen opined that plaintiff had “moderate” limitations in turning her head.

(T. 532).

range of motion. (T. 354, 360, 401, 503, 558, 584, 628, 733, 758). Plaintiff testified

that she was often “hunched over” because it alleviated her back pain, however she

could turn her head to the right and left, and look down for prolonged periods of time.

(T. 56). It was a “little harder” to look down when she was sitting in a chair. (Id.).

Plaintiff reported that her hobbies included watching television and sewing, however

the sewing was limited by her vision and shoulder pain. (T. 221).

Even accepting plaintiff’s argument that the cervical spine limitations opined by

Dr. Perla and Dr. Lorensen were synonymous, they still constitute substantial evidence

for the plaintiff’s modified RFC for light work. As we have explained in prior

decisions, moderate exertional and nonexertional limitations are not inconsistent with

an RFC for light work. See White v. Comm’r of Soc. Sec., No. 8:17-CV-109 (DJS),

2018 WL 2170288, at *8-9 (N.D.N.Y. May 10, 2018) (the moderate limitations as

opined by Dr. Wassef were not inconsistent with an RFC for light work) (collecting

cases), aff’d 753 F. App’x 80, 82 (2d Cir. 2019) (affirming the district court in rejecting

plaintiff’s argument that the ALJ could not properly have inferred that White was able

to perform light work “on a full-time sustained basis” from Dr. Wassef’s opinion that

White had “moderate limitations” in standing, sitting, and performing other activities,

particularly in light of corroborating evidence including White’s daily activities). See

also Rodriguez v. Comm’r of Soc. Sec., No. 15-CV-6596, 2016 WL 5660410, at *10

(S.D.N.Y. Sept. 30, 2016) (citing Laguerre v. Comm’r of Soc. Sec., No. 13 Civ. 6747,

2014 WL 7373435, at *10 (S.D.N.Y. Dec. 29, 2014) (substantial evidence supported

RFC to perform full range of light work, where “the ALJ examined the records of her

treating and consultative examiners and assessed only moderate [nonexertional |

limitations, at most.”). Accordingly, and despite plaintiff's argument to the contrary,

the ALJ did not err in failing to include plaintiffs cervical spine limitations in his

hypothetical to the VE, as these limitations were already contemplated in the modified

RFC for light work. Remand is, therefore, not warranted on this basis.

WHEREFORE, based on the findings above, it is hereby

ORDERED, that the decision of the Commissioner is AFFIRMED and this case

DISMISSED, and it is

ORDERED, that the Clerk enter judgment for DEFENDANT.

Dated: April 30, 2020 Hecho be Bae.

Andrew T. Baxter

U.S. Magistrate Judge

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