# Snyder v. Saul

> District Court, N.D. New York · June 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10312942

## Case

- **Court:** District Court, N.D. New York
- **Decided:** June 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10312942

## How later opinions describe it (automated extraction)

- 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. . . .”
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10312942. Public record. Not legal advice.