Snyder v. Saul

NORTHERN DISTRICT OF NEW YORK

JESSE S.,1

Plaintiff,

v. 8:19-CV-1074

(ATB)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

MARK A. SCHNEIDER, for Plaintiff

ANDREEA L. LECHLEITNER, Special Asst. U.S. Attorney, for Defendant

ANDREW T. BAXTER

United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER

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

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

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

Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 5).

I. PROCEDURAL HISTORY

Plaintiff filed applications for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) on December 31, 2013, alleging disability

beginning July 15, 2013. (Administrative Transcript (“T.”) 67-68, 118-28). These

applications were initially denied on March 28, 2014. (T. 67-72). Plaintiff made a

timely request for a hearing, which was held on September 15, 2015 before

1 In accordance with recent guidance from the Committee on Court Administration and Case

Management of the Judicial Conference of the United States, which was adopted by the Northern

District of New York in June 2018 in order to better protect personal and medical information of non-

governmental parties, this Memorandum-Decision and Order will identify the plaintiff using only his

ALJ Stephan issued an unfavorable decision. (T. 7-20). The Appeals Council denied

plaintiff’s request for review of the ALJ’s decision. (T. 1-3). Plaintiff subsequently

filed an action in the Northern District of New York, challenging the Commissioner’s

decision. Jesse S. v. Comm’r of Soc. Sec., No. 8:17-CV-854 (CFH), 2018 WL 4509492

(N.D.N.Y. Sept. 19, 2018). On September 19, 2018, Magistrate Judge Christian F.

Hummel reversed and remanded the Commissioner’s decision for further administrative

proceedings. (T. 583-602). On November 13, 2018, the Appeals Council remanded

plaintiff’s case to an ALJ for evaluation in accordance with Judge Hummel’s decision.

(T. 579).

In its order, the Appeals Council consolidated plaintiff’s subsequent applications

for both DIB and SSI, which plaintiff filed on July 19, 2017. (Id.). A new hearing

commenced before ALJ Stephan on March 27, 2019, but was postponed in order for the

ALJ to review additional medical evidence. (T. 548-52). The hearing was reconvened

on July 24, 2017. (T. 516-47). Plaintiff appeared with counsel, and the ALJ heard

testimony from Vocational Expert (“VE”) Mr. Guerrasio. (Id.). On August 15, 2019,

ALJ Stephan issued an unfavorable decision, which became the final decision of the

Commissioner. (T. 487-508).

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

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 hire

if he applied for work

42 U.S.C. § 1382(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

which meets or equals the criteria of an impairment listed in Appendix 1 of

the regulations. If the claimant has such an impairment, the

[Commissioner] will consider him disabled with-out 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.

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

B. Scope of Review

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

whether the correct legal standards were applied and whether substantial evidence

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

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

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

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

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

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

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., Monguer v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles

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 (W.D.N.Y. Dec. 6, 2010).

III. FACTS

Plaintiff was born on June 29, 1979. (T. 28). At the time of the 2015 hearing, he

was 36 years old and lived in a house with his 13 year-old daughter, sister and niece.

(Id.). Plaintiff did not complete high school; opting instead to enter the Job Corps and

earn his GED. (T. 29-23). Since that time he worked as a painter, daycare provider,

and maintenance worker. (T. 30-31). Plaintiff’s driver’s license was revoked due to

multiple DWI convictions.2 (T. 29).

Plaintiff stopped working in 2012 because of his back pain. (T. 30). He

experienced issues in “all three levels” of his spine after falling off of a trampoline as a

child. (T. 31). Pain management alleviated some of the pain in his upper and mid-

back, however it did not relieve his lower back pain. (T. 32). As a result, plaintiff was

limited in his ability to sit and stand for extended periods of time. (T. 33). He could

not lift anything “too heavy,” and turning his body caused him to become “locked up.”

(T. 33, 43). Plaintiff testified that he could walk for 15 to 30 minutes at a time before

he had to rest. (T. 38).

2Plaintiff later clarified that the DWI convictions were not recent, and he was presently

eligible to re-apply for a driver’s license. He believed he could drive for short distances if he had

a license. (T. 41-42).

hospital in Plattsburgh for depression and suicidal thoughts stemming from his chronic

pain. (T. 38-39). He attended therapy once a month over the span of “a couple years”;

however, he testified that his mental health services had recently been discontinued due

to insurance issues. (T. 33-34, 37).

In an average day, plaintiff enjoyed going on walks, which alleviated his pain.

(T. 36). On bad days, he just laid in bed. (Id.). He was capable of attending to his

personal hygiene and could dress himself, with the exception of sometimes requiring

assistance with putting on socks and shoes. (T. 36). Usually his daughter or sister did

the laundry; he could fold the clothes. (Id.). Plaintiff did not grocery shop for his

household, but purchased “odds and ends” when he walked to the store. (T. 43). His

depression prevented him from engaging in many activities that he once enjoyed. (T.

36-37). Plaintiff’s back pain was alleviated to some degree by the suboxone and

gabapentin prescribed to him. (T. 39). He had a history of opiate dependency. (T. 39-

40). Lying down and warm showers also helped alleviate plaintiff’s pain. (T. 40-41).

When plaintiff returned for his 2019 hearing, he was 40 years old. (T. 518). He

reported having lower back surgery in 2016. (T. 525). The surgery had some effect in

diminishing his lower back pain and sciatica. (T. 527-29). His pain was still

exacerbated by sitting, bending, and sudden movements. (T. 529). Typically he spent

the majority of the day lying on his back. (T. 530). Since the last hearing, plaintiff had

been prescribed medication for bipolar disorder. (T. 528). He struggled with paranoia,

panic attacks, and suicidal thoughts. (T. 531-33). Plaintiff consumed a six-pack of

IV. THE ALJ’S DECISION

After finding that plaintiff had not engaged in substantial gainful activity

(“SGA”) since his original onset date of July 15, 2013, the ALJ found that plaintiff had

the following severe impairments at step two of the sequential analysis: degenerative

disc disease in the lumbar spine, depressive disorder and substance use disorder. (T.

490). At step three of the sequential evaluation, the ALJ found that plaintiff did not

have an impairment or combination of impairments that met or equaled the severity of a

listed impairment. (T. 561-62). In making this determination, the ALJ considered

Listing 1.04 (disorders of the spine) and Listing 12.04 (affective disorders).

At step four the ALJ determined that the plaintiff had the following RFC:

[T]he claimant has the residual functional capacity to perform

light work as defined in 20 CFR 404.1567(b) and 416.967(b)

except this individual can sit for two hours at one time before

changing positions for five minutes. This individual can

stand/walk for one hour at one time before changing positions

for five minutes. This individual is limited to occasional

climbing of stairs/ramps, stooping, crouching, crawling,

balancing and kneeling. This individual cannot climb ladders

or scaffolds. This individual can frequently reach bilaterally

with the upper extremities in all directions as well as

push/pull bilaterally frequently. This individual can

frequently operate foot controls. This individual is limited to

understanding, remembering and carrying out simple

instructions, performing unskilled work and making

judgments on simple work related decisions. Due to problems

with stress, the individual could only occasionally understand,

remember and carry out complex instructions, make

judgments on complex work related decisions, could

frequently interact with the public, coworkers or supervisors,

and could adapt to frequent changes in a work setting. This

(T. 492). In making this determination, the ALJ conducted a detailed analysis of the

medical evidence of record and considered plaintiff’s stated symptoms and activities.

(T. 492-505).

Based on the above RFC, the ALJ found that plaintiff could not perform his past

relevant work. (T. 505). 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. 506-07). Thus, the ALJ found that plaintiff was

not disabled. (T. 507).

V. ISSUES IN CONTENTION

Plaintiff raises the following arguments in support of his position that the ALJ’s

decision is not supported by substantial evidence:

1. The ALJ violated the remand order of this court. (Plaintiff’s Brief (“Pl.’s

Br.”) at 21-27) (Dkt. No. 12).

2. Plaintiff was disabled by his combination of spinal impairments, pain, and

mental illness. (Pl.’s Br. at 27-35).

3. The ALJ erred by not crediting plaintiff’s well-supported testimony

regarding his limitations. (Pl.’s Br. at 35-38).

4. The Commissioner did not meet his burden of proof at step five. (Pl.’s Br.

at 38-39).

Defendant argues that the Commissioner’s decision is supported by substantial

evidence. (Defendant’s Brief (“Def.’s Br.”) at 4-24) (Dkt. No. 13). For the following

reasons, this court agrees with the defendant and will affirm the Commissioner’s

in a consolidated manner.

DISCUSSION

VI. LISTED IMPAIRMENT

A. Legal Standard

At step three of the disability analysis, the ALJ must determine if plaintiff suffers

from a listed impairment. See 20 C.F.R. §§ 404.1520, 416.920. It is the plaintiff’s

burden to establish that his or her medical condition or conditions meet all of the

specific medical criteria of particular listed impairments. Gabriel C. v. Comm’r of Soc.

Sec., No. 6:18-CV-671 (ATB), 2019 WL 4466983, at *4 (N.D.N.Y. Sept. 18, 2019)

(citing inter alia Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). “Nonetheless, the ALJ

is required to explain why a claimant failed to meet or equal the listings [w]here the

claimant’s symptoms as described by the medical evidence appear to match those

described in the Listings.” Ramirez Morales v. Berryhill, No. 6:17-CV-06836, 2019

WL 1076088, at *3 (W.D.N.Y. Mar. 7, 2019) (quoting Rockwood v. Astrue, 614 F.

Supp. 2d 252, 273 (N.D.N.Y. 2009) (citation and internal quotations omitted)). If a

plaintiff’s impairment “manifests only some of those criteria, no matter how severely,”

such impairment does not qualify. Debra E. v. Comm’r of Soc. Sec., No. 6:18-CV-513

(NAM), 2019 WL 4233162, at *6 (N.D.N.Y. Sept. 6, 2019) (quoting Sullivan v. Zebley,

493 U.S. at 530). In order to demonstrate medical equivalence, a plaintiff “must

present medical findings equal in severity to all the criteria for the one most similar

listed impairment.” Sullivan v. Zebley, 493 U.S. at 531 (emphasis added).

Plaintiff contends that the ALJ erred at step three in failing to conclude that

plaintiff’s impairments “equaled” the spinal disorder impairment described in Listing

1.04A. (Pl.’s Br. at 32-34). The court disagrees and finds that the ALJ’s step three

determination was supported by substantial evidence.

As relevant here, Listing 1.04A provides as follows:

Disorders of the spine (e.g., herniated nucleus pulposus, spinal

arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc

disease, facet arthritis, vertebral fracture), resulting in

compromise of a nerve root (including the cauda equine) or the

spinal cord.

With:

A. Evidence of nerve root compression characterized by

neuroanatomic distribution of pain, limitation of motion of the

spine, motor loss (atrophy associated muscle weakness or

muscle weakness) accompanied by sensory or reflex loss and, if

there is involvement of the lower back, positive straight-leg

raising test (sitting and supine).

20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.04A. “Thus, in order to satisfy this

listing, plaintiff must establish that (1) he has a disorder of the spine which

compromises a nerve root or the spinal cord, and (2) that this disorder is manifested by

neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss

(atrophy with associated muscle weakness or muscle weakness) accompanied by

sensory or reflex loss and, if there is involvement of the lower back, positive

straight-leg raising test (sitting and supine).” Wojcik v. Colvin, No. 15-CV-641(A),

2016 WL 11483503, at *5 (W.D.N.Y. Aug. 3, 2016) (quoting McKinney v. Astrue, No.

Even if plaintiff’s impairment does not specifically meet the specific

aforementioned criteria, it still may medically equal Listing 1.04A. 20 C .F.R. §§

404.1526(a), 415.926(a). A claimant’s impairment is medically equivalent to a listing

if: (1) the claimant has other findings that are related to his or her impairment that are

equal in medical severity; (2) the claimant has a “closely analogous” impairment that is

“of equal medical significance to those of a listed impairment;” or (3) the claimant has a

combination of impairments that are medically equivalent. Id. §§ 404.1526(b)(1)-(3),

416.926(b)(1)-(3). In evaluating whether an impairment is equivalent to a listing, the

ALJ “will consider all of the evidence in the record, except for factors of age, education

and work experience.” Lamond v. Astrue, No. 5:06-CV-838 (LEK), 2010 WL 3023901,

at *5 (N.D.N.Y. Aug. 2, 2010); 20 C.F.R. §§ 404.1526(c), 416.926(c).

Here the ALJ found that plaintiff’s impairments neither met, nor medically

equaled, the criteria of any listed impairment. (T. 490). The ALJ specifically

considered Listing 1.04A in his step three determination, however stated that the listing

was not met because “there is no evidence of nerve root compression characterized by

neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss

(atrophy with associated muscle weakness or muscle weakness) accompanied by

sensory or reflex loss, and, if there is involvement of the lower back, positive straight-

leg raising test (sitting and supine), all of which must be simultaneously present.”3 (Id.).

3Plaintiff concedes that he does not meet the criteria of Listing 1.04A. (Pl’s Br. at 33).

that plaintiff’s impairments did not medically equal the severity of any listed

impairment, including listing 1.04A, as “[n]o treating, examining, or non-examining

medical source has mentioned findings or rendered an opinion that the [plaintiff’s]

impairments, singly or in combination, medically equaled the criteria of any listed

impairment.” (Id.).

Despite the plaintiff’s contentions, the ALJ did not commit any legal error at this

step of the sequential analysis. The only opinion evidence relevant to the ALJ’s step

three determination came from non-examining orthosurgeon Louis A. Fuchs, M.D.,

who specifically opined that plaintiff’s impairments did not meet or equal Listing

1.04A because plaintiff’s “neuro objective exam [was] intact.” (T. 465-66). The ALJ

noted the absence of any contradictory medical evidence of record, suggesting that

plaintiff’s symptoms medically equaled a listing. (T. 490). It was not improper for the

ALJ to rely on the only relevant opinion of record in determining that plaintiff did not

meet the standard for medical equivalence. See Green on behalf of D.D. v. Colvin, No.

3:17-CV-78, 2018 WL 323944, at *4 (D. Conn. Jan. 8, 2018) (citing Steward v. Bowen,

858 F.2d 1295, 1298-99 (7th Cir. 1988)) (rejecting claimant’s equivalence claim in part

on basis that all consulting physicians involved in case had concluded claimant’s

impairment did not medically equal listing).

The administrative record otherwise contains substantial evidence supporting the

ALJ’s finding that plaintiff’s spinal impairments fell short of the criteria for Listing

1.04A. Specifically, plaintiff did not suffer from the requisite motor or sensory loss or

against a finding of equivalence. On April 26, 2013, plaintiff presented to a pain

management clinic denying any new onset of weakness in either leg. (T. 186). Dr.

Soccio noted “normal tone and symmetrical muscle bulk,” along with full motor

strength, throughout the lower extremities. (Id.). Moreover, plaintiff treated for pain

management with Dr. Kuang from 2014 through 2019. Dr. Kuang consistently noted

an absence of weakness or paresthesia throughout his treatment.4 Plaintiff’s primary

care provider, nurse practitioner David Dempsey, examined plaintiff in February 2019

and also noted the absence of any weakness. (T. 914). In April 2019, Dr. Lecuyer

examined plaintiff for an initial pain management consultation regarding plaintiff’s

chronic lower back pain. (T. 1082). The physical examination revealed some

tenderness and decreased range of motion, but full motor strength in the major groups

of plaintiff’s lower extremities. (T. 1084). Finally, there is no evidence that plaintiff

ever exhibited positive results from a straight leg raise test. (T. 186, 1084).

Plaintiff fails to advance any credible argument as to why, or how, the symptoms

of his impairments are equivalent in severity to any of the criteria for Listing 1.04A.

Plaintiff only contends that his impairments “appear” to equal Listing 1.04A because he

has “limitations in walking, standing, sitting, bending, and squatting from his lumbar

radiculopathy.” (Pl.’s Br. at 33). Nevertheless, “[w]ithout medical evidence—or any

other evidence for that matter—demonstrating that [plaintiff’s impairments are]

clinically equivalent or “closely analogous” to [the criteria of Listing 1.04A] in some

4See T. 310, 314, 318, 322, 326, 330, 334, 338, 341, 344, 807, 814, 910, 914, 921, 925,

929, 933, 937, 941, 943, 1033, 1039, 1042, 1045, 1048, 1052.

connection.” Green on behalf of D.D. v. Colvin, 2018 WL 323944 at *5 (citing inter

alia 20 C.F.R. §§ 404.1526, 416.926). Although, arguably, the ALJ could have been

more detailed in his explanation regarding the medical equivalency of plaintiff’s

impairments to Listing 1.04A, it is within the province of this court to “look to the other

portions of the ALJ’s decision and to clearly credible evidence” in the record

supporting the ALJ’s conclusion. Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109,

112-13 (2d. Cir. 2010) (holding that there is no need to remand for clarification if this is

not a case “in which we would be unable to fathom the ALJ’s rationale in relation to

evidence in the record”).

Accordingly, the court finds that the ALJ’s conclusion that plaintiff’s

impairments did not meet or medically equal Listing 1.04A was supported by

substantial evidence in the record, and remand is not warranted on this basis.

VII. RFC/WEIGHT OF THE EVIDENCE/EVALUATION OF SYMPTOMS

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 per day, for five days per 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

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

regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241, 267

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

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

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

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

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

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

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

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

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

(S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324, 2012 WL

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

“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

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.

B. Application

Plaintiff contends that the ALJ failed to remedy the errors identified by Judge

Hummel in his 2018 remand order, on which bases subsequent administrative

proceedings were found necessary. (Pl.’s Br. at 21-27). Specifically, plaintiff points to

three issues identified by Judge Hummel: (1) reconciling the “great weight” afforded to

Dr. Clark and Dr. Fuchs’ opinions, which included various non-exertional limitations,

with the ALJ’s RFC determination that plaintiff could perform the full range of light

work; (2) explaining why plaintiff was not limited to simple work in light of the weight

afforded to Dr. Clark’s December 2015 opinion; and (3) distinguishing the issues of

severity versus disability when assessing the severity of plaintiff’s mental impairment

and its implications for the ALJ’s RFC determination. (Id. at 22-23).

additional opinion evidence relative to the newly alleged period of disability. As a

result, his analysis and determination at each level of the sequential analysis differed

from those contained in his prior decision. For example, based on the updated record

the ALJ determined at step one that plaintiff’s mental impairments were severe, and

based on this finding incorporated various mental limitations into plaintiff’s RFC.

Thus, any argument that the ALJ did not comply with Judge Hummel’s remand order

regarding the step one analysis is moot, to the extent the ALJ found that plaintiff’s

mental impairments were severe, upon reconsideration of the evidence.

Plaintiff’s remaining, viable arguments with respect to Judge Hummel’s remand

order essentially challenge the ALJ’s evaluation of the evidence of record, and whether

the ALJ’s revised RFC for modified light work is supported by substantial evidence.

1. Mental RFC

At step one, the ALJ found that plaintiff’s depression and substance abuse

disorder constituted severe impairments which significantly limited the plaintiff’s

ability to perform basic work activities. (T. 490). Although the ALJ declined to find

that plaintiff’s mental impairments met or equaled the severity of a listed impairment,

he went on to consider the effect of plaintiff’s symptoms on his ability to perform

substantial gainful employment. To this end, the ALJ was presented with and evaluated

a host of psychiatric medical opinions prepared by non-examining state agency

psychologists, a consultative examiner, and a treatment provider. The ALJ considered

these opinions at length throughout his decision; the relevant portions of which are

On March 20, 2014, plaintiff presented for a consultative psychiatric examination

with Carly Melcher, Psy.D. (T. 285-89). After obtaining plaintiff’s background

information and medical history, Dr. Melcher performed a mental status examination.

She noted that plaintiff presented as cooperative, and he related adequately. (T. 286).

Plaintiff appeared well-groomed with appropriate eye contact, exhibiting normal

posture but labored motor behavior. (Id.). His speech was fluent and clear, and his

thought processes were coherent and goal directed. (T. 287). Dr. Melcher described

plaintiff’s affect as “of full range, yet dysphoric and flat at times.” (Id.). His mood was

euthymic, with full orientation and intact attention and concentration. (Id.). Dr.

Melcher found plaintiff’s recent and remote memory skills to be mildly impaired due to

emotional distress secondary to depression. (Id.). His cognitive functioning was

average, and his insight and judgment were fair. (Id.).

Based upon her findings, Dr. Melcher opined that plaintiff was able to follow and

understand simple directions and instructions, perform simple tasks independently,

maintain attention and concentration, and make appropriate decisions without

limitation. (T. 288). She further opined that plaintiff had mild limitations in

maintaining a regular schedule, learning new tasks, performing complex tasks

independently, and relating to others. (Id.). Last, she determined that plaintiff had mild

to moderate limitations in appropriately dealing with stress. (Id.).

The ALJ considered Dr. Melcher’s opinion and gave it “some weight.” (T. 502).

He described Dr. Melcher’s opinion to be “somewhat consistent” with the record as a

function on a daily basis. (T. 502). The ALJ also considered Dr. Melcher’s speciality

in the field of mental health, her opportunity to examine the plaintiff, and her

knowledge of the Social Security Disability Program. (Id.).

A. Herrick, a non-examining state agency mental health consultant, reviewed

plaintiff’s record as of March 28, 2014. (T. 51-53). Among his findings, A. Herrick

opined that plaintiff was moderately limited in his ability to understand and remember

detailed instructions. (T. 52). He further stated that plaintiff was moderately limited in

his ability to maintain attention and concentration for extended periods; perform

activities within a schedule; maintain regular attendance and be punctual within

customary tolerances; complete a normal workday and workweek without interruptions

from psychologically based symptoms, and to perform at a consistent pace without an

unreasonable number and length of rest periods. (Id.). Dr. Herrick determined that

plaintiff was not significantly limited in the remaining listed functions. (T. 51-53).

The ALJ considered A. Herrick’s5 opinion, giving it “some weight.” (T. 501).

The ALJ acknowledged that the opinion was “somewhat consistent” with the record as

a whole, and that plaintiff did suffer some residual symptoms from his depressive and

schizoaffective disorders. (Id.). Nevertheless, the ALJ found the record to support that

plaintiff’s symptoms were well controlled and stable with prescribed treatment

5The ALJ also considered a November 1, 2017 opinion from non-examining state agency

examiner H. Ferrin. (T. 553-574). However, the ALJ gave little weight to H. Ferrin’s opinion

that plaintiff’s depressive, bipolar, and related disorders were non-severe and caused, at most,

mild limitations. (T. 501). The ALJ explained that this opinion was inconsistent with the record

as a whole, which supported that plaintiff’s had a severe mental impairment that would cause

him to have some moderate mental limitations. (T. 501-02).

illustrated that his impairments were well controlled. (Id.).

On December 21, 2015, non-examining psychiatrist Rita Clark, M.D., submitted

medical interrogatories and a medical source statement (“MSS”) relative to plaintiff’s

mental impairments. (T. 475-482). Among her findings, Dr. Clark opined that plaintiff

was moderately limited in understanding and remembering complex instructions,

carrying out complex instructions, and in his ability to make judgments on complex

work-related decisions. (T. 480). She noted that plaintiff’s “anxiety and depression

will impair complex functions.” ( Id.). Dr. Clark also stated that plaintiff was limited

to working in a “low stress job within his physical limitations . . . [with] no strict

production or time requirements.” (T. 479).

The ALJ considered Dr. Clark’s opinion and gave it “some weight.” (T. 503).

He found Dr. Clark’s analysis of the record to be “well-supported” and “some-what

consistent.” (Id.). He noted that “the weight of Dr. Clark’s opinion is diminished by

the fact that [she] did not have the opportunity to examine the [plaintiff] or review the

evidence received after [her] file review was complete.” (Id.).

Plaintiff presented for a second psychiatric consultative examination on October

25, 2017 with Brett T. Hartman, Psy.D. (T. 854-58). After obtaining his background

information and medical history, Dr. Hartman performed a mental examination of

plaintiff. Among his findings, Dr. Hartman noted that plaintiff exhibited clear and

fluent speech, coherent and goal directed thought process, and a restricted affect. (T.

855-56). His attention, concentration and memory skills appeared to be mildly

examination, Dr. Hartman opined that plaintiff was able to understand, remember, and

apply simple directions; as well as maintain personal hygiene and awareness of hazards.

Dr. Hartman further opined that plaintiff had a “fair” ability to understand, remember,

and apply complex directions; use reason and judgment; and sustain an ordinary

routine. He found plaintiff to exhibit mild difficulty interacting adequately with others;

sustaining concentration; and regulating his emotions and controlling behavior. (T.

857).

The ALJ considered Dr. Hartman’s opinion, affording it “some weight.” (T. 503).

The ALJ acknowledged the opinion’s consistency with the record as a whole and

activities of daily living. (Id.). In addition, he took note of Dr. Hartman’s professional

expertise and familiarity with the Social Security Disability Program. (Id.).

The last opinion rendered with respect to plaintiff’s mental health limitations is a

March 26, 2019 mental RFC assessment prepared by plaintiff’s treating nurse

practitioner (“NP”), Elizabeth Greis. (T. 1007-12). In her assessment, NP Greis stated

that plaintiff had received intermittent counseling services since May 2017, and had a

current diagnosis of bipolar and schizoeffective disorder. (T. 1007). NP Greis opined

that plaintiff experienced moderate limitations in understanding and memory. (T. 1009).

She found that plaintiff experienced moderate limitations in sustaining concentration

and persistence, with the exception of mild limitations in his ability to make simple

work-related decisions, and marked limitations in his “ability to complete a normal

workday and workweek without interruptions from psychologically based symptoms

rest periods.” (T. 1009-10). She also concluded that plaintiff had moderate limitations

in social interaction and adaptation. (T. 1010-11). NP Greis expressed that plaintiff’s

impairments substantially interfered with his ability to work on a regular and sustained

basis at least 20% of the time, and he would miss “14+” days of work per month. (T.

1011).

The ALJ considered NP Greis’s opinion, affording it “little weight.” (T. 503).

First, the ALJ noted that NP Greis was not an acceptable medical source under the

applicable regulations. (T. 504). Moreover, the ALJ found that NP Greis’s opinion

was not supported, nor consistent, with the record as a whole. In particular, he

explained that NP Greis’s restrictive opinion regarding plaintiff’s absences per month

and ability to work on a regular and sustained basis was based only on the plaintiff’s

“depressive and anxiety symptoms that the record indicates are stable and well

controlled with prescribed treatment methods.” (Id.). The ALJ also found plaintiff’s

activities of daily living to be inconsistent with an individual who has significant

limitations in the functions opined by NP Greis. (Id.).

With respect to the opinion evidence of record, plaintiff contends that the ALJ

erred in affording limited weight to NP Greis’s restrictive opinion. The court disagrees,

finding that the ALJ’s evaluation of NP Greis’s opinion was legally sufficient and

supported by substantial evidence. First, although relevant to issues such as the

severity of impairments and functional limitations, NP Greis’s opinion was not entitled

to any special weight. See Wider v. Colvin, 245 F. Supp. 3d 381, 389 (E.D.N.Y. 2017)

practitioners are not considered ‘acceptable medical sources,’ and their opinions are

therefore not ‘entitled to any particular weight[.]’”). Moreover, the record reflects that

NP Greis treated plaintiff on only one occasion prior to issuing her RFC assessment.

See 20 C.F.R. §§ 404.1527(c)(2)(i); 416.927(c)(2)(i) (“Generally, the longer a treating

source has treated you and the more times you have been seen by a treating source, the

more weight we will give to the source’s medical opinion.”). These factors were

appropriate considerations in weighing NP Greis’s opinion. See Cowley v. Berryhill,

312 F. Supp. 3d 381, 383 (W.D.N.Y. 2018) (explaining that amount of weight given to

opinions of non-medical sources “is based, in part, on the examining and treatment

relationship” and the “length and frequency of examinations. . . .”).

The ALJ properly considered the remaining, applicable regulatory factors in

evaluating NP Greis’s opinion. He specifically addressed her statement regarding

absenteeism and plaintiff’s ability to work on a regular and sustained basis, but found

NP Greis’s restrictive opinion to be unsupported by the record. (T. 504). On March 19,

2019, NP Greis examined plaintiff for the first time and found him to have a depressed

mood with rapid, pressured speech. (T. 1073-74). She described plaintiff’s thought

process as logical, thought content without delusions, and cognition normal. (Id.).

Plaintiff’s orientation, memory, attention and concentration were all intact. (Id.). She

found moderate impairments in plaintiff’s judgment and insight. (Id.). As a result of

her initial examination, NP Greis prescribed plaintiff Seroquel to address his symptoms.

(Id.). Plaintiff returned for a follow up visit with NP Greis on June 11, 2019, at which

bit paranoid.” (T. 1077). Upon examination, NP Greis found plaintiff to be anxious

with paranoid delusions and suicidal ideation without plan or intent. (T. 1078).

Plaintiff was otherwise cooperative, with normal speech, logical thought processes and

normal cognition. (Id.). His orientation, memory, and judgment were all intact, and he

exhibited moderate impairment with insight. (Id.). His attention and concentration

were intact. (Id.). Based on the aforementioned, it was not improper for the ALJ to

afford limited weight to NP Greis’s opinion, because her treatment notes did not

support the restrictive limitations set forth in her opinion, which was otherwise

unaccompanied by supporting evidence. See 20 C.F.R. §§ 404.1527(c)(3);

416.927(c)(3) (“The better an explanation a source provides for a medical opinion, the

more weight we will give that medical opinion.”).

Furthermore, NP Greis’s restrictive opinion was properly afforded limited weight

to the extent it was inconsistent with the record as a whole. See 20 C.F.R. §§

404.1527(c)(4), 416.927(c)(4). The frequency of plaintiff’s mental health treatment

waxed and waned during the six year period of alleged disability. Plaintiff presented for

intermittent treatment between 2013 and 2015. During this two year span, plaintiff’s

attention and concentration were generally noted as intact (T. 366, 371, 376, 378, 383,

386, 389, 398), with the occasional indication of impairment. (T. 193, 400, 402, 404,

407). His memory, judgment and insight status fluctuated between examinations, but

were more often than not noted to be “intact.” (T. 366, 371, 376, 378, 383, 386, 389,

398, 400, 402, 404, 407). Plaintiff consistently displayed normal cognition. (Id.).

appointments, plaintiff did not continue with mental health treatment until he presented

for therapy approximately two years later on May 11, 2017. (T. 795). Plaintiff’s

mental health examination at this time revealed normal results. (T. 796). It appears

that plaintiff presented for his next appointment on May 24, 2017, however another two

years lapsed before plaintiff returned for therapy with NP Greis on March 19, 2019. (T.

1001).

Based on the foregoing, it was not improper for the ALJ to determine that

plaintiff’s conservative, and intermittent, treatment history is inconsistent with and fails

to support NP Greis’s restrictive opinion regarding plaintiff’s rate of absenteeism and

ability to work on a sustained basis. See O’Connor 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.”).

opinions of record indicating that, although limited, plaintiff’s mental functional

capacity would not prevent him from performing substantial gainful employment. (T.

475-482, 288). Despite plaintiff’s argument, the court is unpersuaded that Dr.

Hartman’s opinion, stating that plaintiff had a “fair” ability to sustain an ordinary

routine, was consistent with NP Greis’s opinion that plaintiff was “markedly limited” in

completing a normal workday and performing at a consistent pace. See Filichko v.

Colvin, No. 15-CV-525, 2016 WL 3166899, at *7 (S.D.N.Y. Apr. 27, 2016) (plaintiff’s

“fair” ability to sustain an ordinary routine, among other mental abilities, suggested no

more than a mild impairment).

Based on the aforementioned, the court finds no error in the ALJ’s evaluation of

NP Greis’s opinion. Although the ALJ may not have discussed each aforementioned

factor explicitly in his evaluation, he properly applied the regulations and his evaluation

was supported by substantial evidence of record. See Taylor v. Colvin, No. 3:14-CV-

928 (GTS), 2016 WL 1049000, at * 4 (N.D.N.Y. Mar. 11, 2016) (citing Atwater v.

Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) ) (“Where, as here, an ALJ's reasoning and

adherence to the regulations are clear, the ALJ is not required to review explicitly each

and every factor of the regulation.”).

The court is further unpersuaded by plaintiff’s argument that the nonexertional

mental limitations contained in plaintiff’s RFC were legally insufficient. (Pl.’s Br. at

23-24). As previously discussed, the ALJ dedicated a significant portion of his

decision to analyzing the psychiatric opinions of record, and his detailed RFC

limitations. (T. 492). Specifically, the ALJ incorporated limitations relative to

plaintiff’s ability to deal with stress, handle simple versus complex instructions and

work, engage in social interaction, and meet strict work production rates. (Id.). The

court finds that these limitations adequately account for the overwhelming opinion

throughout the record indicating that plaintiff suffered, at most, moderate limitations in

understanding, remembering and carrying out detailed instructions; maintaining

attention and concentration for extended periods; keeping to a schedule and

maintaining regular attendance. (T. 51-53, 285-89, 475-82, 854-58, 1009-12).

Moreover, the three jobs identified by the vocational expert were unskilled

positions, “which can be performed by individuals with moderate mental deficiencies.”

Sanchez v. Berryhill, 336 F. Supp. 3d 174, 178-79 (W.D.N.Y. 2018) (listing cases);

Mayer v. Comm’r of Soc. Sec., No. 1:18-CV-0062, 2019 WL 2266795, at *5 (W.D.N.Y.

May 28, 2019) (“The Second Circuit has repeatedly held that ‘moderate’ limitations do

not preclude a plaintiff’s ability to perform unskilled work.”) (listing cases)).

In sum, the court finds that the ALJ’s evaluation of the psychiatric evidence of

record, and his mental RFC determination were supported by substantial evidence.

Remand, therefore, is not warranted with respect to these issues.

2. Physical RFC

Plaintiff further argues that the ALJ erred in determining that plaintiff had the

RFC to perform modified light work. (Pl.’s Br. at 25). However, the court finds that

the ALJ’s physical RFC determination is supported by substantial evidence.

and discussed each, at length, in his decision. (T. 500-05). Among those considered

were opinions from non-examining state agency physician S. Putcha, M.D.; non-

examining consultative orthosurgeon Louis A. Fuchs, M.D.; treating physician Lai

Kuang, M.D.; and consultative examiner Nader Wassef, M.D.6 The ALJ attributed

“some weight” to each of the aforementioned opinions in determining plaintiff’s

physical RFC. It is uncontested that the medical sources of record uniformly opined

that plaintiff suffered no more than moderate limitations in his physical functional

abilities. (T. 294, 851, 899). The courts in this district have repeatedly found that such

moderate limitations are consistent with an ability to perform light work. See Katherine

Marie S. v. Comm’r of Soc. Sec., 18-CV-0233 (TWD), 2019 WL 1427456, at *7

(N.D.N.Y. Mar. 29, 2019) (“. . . courts in this Circuit have found that ‘postural

limitations of moderate or lesser severity are generally consistent with the demands of

light work.”); April B. v. Saul, 18-CV-0682 (DJS), 2019 WL 4736243, at *5 (N.D.N.Y.

Sept. 27, 2019) (“. . . moderate limitations in standing and walking [and lifting] are

consistent with light work.”) (collecting cases).

Specifically, Dr. Putcha opined that plaintiff could satisfy the requirements for

the full range of light work. (T. 571-72). Although the ALJ accepted Dr. Putcha’s

opinion with respect to plaintiff’s exertional abilities, he found the record supported the

existence of some postural, reach, and foot control limitations which would limit the

plaintiff from performing the full range of light work. (T. 294, 851, 899). Thus, the

6Dr. Wassef submitted two separate opinions, based on his opportunity to examine

plaintiff in 2014, and once more in 2017.

the province of the ALJ to consider and resolve conflicts in the evidence as long as the

decision rests upon ‘adequate findings supported by evidence having rational probative

force.’ ” Camarata v. Colvin, No. 14-CV-0578(MAD/ATB), 2015 WL 4598811, at *9

(N.D.N.Y. July 29, 2015) (quoting Galiotti v. Astrue, 266 F. App’x 66, 67 (2d Cir.

2008) (summary order)). See also Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)

(although ALJ’s conclusion did not perfectly correspond with any of the opinions of

medical sources, ALJ was entitled to weigh all of the evidence available to make an

RFC finding that was consistent with the record as a whole).

The one issue with the sufficiency of the ALJ’s evaluation of the opinion

evidence is his analysis of the January 15, 2019 employability assessment prepared by

Dr. Kuang, one of plaintiff’s treating physicians. (T. 898-899). The record reflects

that Dr. Kuang was plaintiff’s pain management provider for approximately six years,

and treated plaintiff on a consistent basis. Despite the same, there is no indication that

the ALJ applied the treating source rule to Dr. Kuang’s opinion. On the contrary, the

ALJ only afforded Dr. Kuang’s opinion “some weight,” without any discussion of the

regulatory factors or providing good reason for the limited weight assigned. (T. 504-

05). See Shaffer o/b/o Z.L.S.R. v. Colvin, No. 5:15-CV-0769 (BKS/DJS), 2016 WL

8469638, at *3 (N.D.N.Y. Sept. 29, 2016) (“When the ALJ decides not to give a

treating physician’s opinion controlling weight, she must provide ‘good reasons’ for

doing so . . . . The Second Circuit has held that ‘[i]n order to override the opinion of a

treating physician, . . . the ALJ must explicitly consider, inter alia: (1) the frequency,

the opinion; (3) the consistency of the opinion with the remaining medical evidence and

(4) whether the physician is a specialist.’”) (internal citations omitted).

Nevertheless, error in application of the treating physician rule is harmless if

“application of the correct legal standard could lead to only one conclusion.” Price v.

Comm’r of Soc. Sec., No. 14-CV-9164, 2016 WL 1271501, at *4 (S.D.N.Y. Mar. 31,

2016) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)). In this case, even

though the ALJ purported to afford only “some weight” to the treating physician’s

opinion, the ultimate RFC determination is consistent with the moderate limitations set

forth by Dr. Kuang. (T. 899). Thus, even if the application of the treating physician

rule revealed that Dr. Kuang’s opinion was entitled to controlling weight, this would

not disturb the ALJ’s conclusion that plaintiff could perform a modified form of light

work.

In sum, the court is satisfied that, with the one exception discussed above that

constitutes harmless error, the ALJ employed the correct legal standards. The court

further finds that substantial evidence exists to support the ALJ’s decision with regard

to plaintiff’s physical RFC to perform modified light work.

VIII. EVALUATION OF SYMPTOMS

A. Legal Standards

In evaluating a plaintiff’s RFC for work in the national economy, the ALJ must

take the plaintiff’s reports of pain and other symptoms into account. Genier v. Astrue,

606 F.3d 46, 49 (2d Cir. 2010). The ALJ must “‘carefully consider’” all the evidence

including ‘daily activities’ and the ‘location, duration, frequency, and intensity of

[their] pain or other symptoms.’” Del Carmen Fernandez v. Berryhill, No. 18-CV-326,

2019 WL 667743, at *9 (S.D.N.Y. Feb. 19, 2019) (citing 20 C.F.R. § 404.1529(c)(3);

Social Security Ruling (SSR) 16-3p, Titles II and XVI: Evaluation of Symptoms in

Disability Claims, 81 FR 14166-01 at 14169-70, 2016 WL 1020935 (Mar. 16, 2016)).

In 2016 the Commissioner eliminated the use of term “credibility” from the “sub-

regulatory policy” because the regulations themselves do not use that term. SSR 16-3p,

81 FR at 14167. Instead, symptom evaluation tracks the language of the regulations.7

The evaluation of symptoms involves a two-step process. First, the ALJ must

determine, based upon the objective medical evidence, whether the medical

impairments “could reasonably be expected to produce the pain or other symptoms

alleged . . . .” 20 C.F.R. §§ 404.1529(a), (b); 416.929(a), (b). If so, at the second step,

the ALJ must consider “‘the extent to which [the claimant’s] alleged functional

limitations and restrictions due to pain or other symptoms can reasonably be accepted

as consistent with the [objective medical evidence] and other evidence to decide how

[the claimant's] symptoms affect [her] ability to work.’” Barry v. Colvin, 606 F. App’x

621, 623 (2d Cir. 2015) (citing inter alia 20 C.F.R. § 404.1529(a); Genier v. Astrue, 606

7 The standard for evaluating subjective symptoms has not changed in the regulations. Rather,

the term “credibility” is no longer used, and SSR 16-3p makes it clear that the evaluation of the

claimant’s symptoms is not “an evaluation of the claimant’s character.” 81 FR at 14167. The court will

remain consistent with the terms as used by the Commissioner.

substantiate the claimant’s symptoms, the ALJ must consider the other evidence.

Cichocki v. Astrue, 534 F. App’x 71, 76 (2d Cir. 2013) (citing superceded SSR 96-7p).

The ALJ must assess the claimant’s subjective complaints by considering the record in

light of the following symptom-related factors: (1) claimant’s daily activities; (2)

location, duration, frequency, and intensity of claimant’s symptoms; (3) precipitating

and aggravating factors; (4) type, dosage, effectiveness, and side effects of any

medication taken to relieve symptoms; (5) other treatment received to relieve

symptoms; (6) any measures taken by the claimant to relieve symptoms; and (7) any

other factors concerning claimant’s functional limitations and restrictions due to

symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

The ALJ must provide specific reasons for the determination. Cichocki v. Astrue,

534 F. App’x at 76. However, the failure to specifically reference a particular relevant

factor does not undermine the ALJ’s assessment as long as there is substantial evidence

supporting the determination. Id. See also Del Carmen Fernandez v. Berryhill, 2019

WL 667743 at *11 (citing Rousey v. Comm’r of Soc. Sec., 285 F. Supp. 3d 723, 744

(S.D.N.Y. 2018)). “[R]emand is not required where ‘the evidence of record allows the

court to glean the rationale of an ALJ’s decision.’” Cichocki v. Astrue, 534 F. App’x at

76 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)).

8 The court in Barry also cited SSR 96–7p, 1996 WL 374186, at *2 (July 2, 1996) which was

superceded by SSR 16-3p. As stated above, the factors considered are the same under both rulings.

The 2016 ruling merely eliminated the emphasis on “credibility.”

Plaintiff argues that the ALJ failed to properly evaluate plaintiff’s reports of pain

and other symptoms into account in rendering his final RFC determination. In his

decision, the ALJ specifically found that plaintiff’s statements concerning the intensity,

persistence and limiting effects of his symptoms were “not entirely consistent with the

medical evidence and other evidence in the record[.]” (T. 493). The ALJ supported his

conclusion by noting that the objective medical evidence of record showed “mostly

stable conditions and conservative management of . . . symptoms[.]” (Id.). The ALJ

further observed that the record “does not establish physiological abnormalities which

would limit the claimant’s daily activities to the disabling degree alleged or preclude

the claimant from performing at the [assessed RFC].” (T. 494). Last, the ALJ pointed

out that plaintiff engaged in a wide variety of activities of daily living, including

independent personal care, dressing himself, preparing simple meals, occasional

grocery shopping, using public transportation, and riding a bicycle. (T. 500).

The Court’s review of the record supports the ALJ’s finding that plaintiff’s

statements about the intensity, persistence, and limiting effects of his symptoms were

inconsistent with the evidence of record. The ALJ closely examined the evidence, and

discussed the results of plaintiff’s MRIs and treatment notes – many of which indicated

that his medical regimen was providing sufficient pain relief. (T. 314, 310; 318, 322,

326, 330, 338, 341, 347, 807, 921, 941, 1033, 1039, 1042, 1045). Plaintiff also made

various statements to his treatment providers that did not support his allegations about

the extent of his limitations. For example, on December 10, 2018, plaintiff reported an

months prior. (T. 921). Plaintiff also reported that he strained his back while moving

furniture. (Id.).

The Court finds that the ALJ properly considered the evidence before him, and

that substantial evidence supports his evaluation of Plaintiff’s symptoms, making

remand on this issue unwarranted. It is not the role of a court to “re-weigh evidence”

because “a reviewing court ‘defers to the Commissioner’s resolution of conflicting

evidence’ where that resolution is supported by substantial evidence.” Lewis v. Colvin,

122 F. Supp. 3d 1, 7 (N.D.N.Y. 2015) (quoting Cage v. Comm’r of Soc. Sec., 692 F.3d

118, 122 (2d Cir. 2012)).

IX. STEP FIVE DETERMINATION

A. Legal Standards

At step five of the disability analysis, the burden shifts to the ALJ to demonstrate

that there is other work in the national economy that plaintiff can perform. Poupore v.

Astrue, 566 F.3d 303, 306 (2d Cir. 2009). If the ALJ utilizes a VE at the hearing, the

VE is generally questioned using a hypothetical question that incorporates plaintiff’s

limitations. See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981). Although the

ALJ is initially responsible for determining the claimant’s capabilities based on all the

evidence (see Dumas v. Schweiker, 712 F.2d 1545, 1554 n.4 (2d Cir. 1983)), a

hypothetical question posed to the VE that does not present the full extent of a

claimant’s impairments cannot provide a sound basis for vocational expert testimony.

See De Leon v. Sec’y of Health and Human Servs., 734 F.2d 930, 936 (2d Cir. 1984);

Lugo v. Chater, 932 F. Supp. 497, 503-04 (S.D.N.Y. 1996). Conversely, the ALJ may

rely on a VE’s testimony regarding the availability of work as long as the hypothetical

facts the expert is asked to consider are based on substantial evidence and accurately

reflect the plaintiffs limitations. Calabrese v. Astrue, 358 F. App’x 274, 276 (2d Cir.

2009). Where the hypothetical is based on an RFC analysis supported by substantial

facts, the hypothetical is proper. Jd. at 276-277.

B. Application

Plaintiff argues that the step five determination is not supported by substantial

evidence. This argument is based on plaintiff's argument that the ALJ’s RFC

evaluation did not contain sufficient limitations, as discussed above. Because this court

has found that the ALJ’s RFC evaluation was supported by substantial evidence, the

hypothetical question posed to the VE is equally supported, and the ALJ’s disability

determination was sound.

WHEREFORE, based on the findings above, it is

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: June 25, 2020 th how Be Ho

Andrew T. Baxter

U.S. Magistrate Judge

36