Cuda v. Commissioner of Social Security

NOUNRITTHEEDR SNT DAITSETSR DICISTT ORFIC NTE CWO YUORRTK

______________________________________________________________________

CAROL ANN C.,

Plaintiff,

v. 6:19-CV-904

(ATB)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

______________________________________________________________________

CAROL ANN C., Plaintiff pro se

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

ANDREW T. BAXTER, U.S. Magistrate Judge

MEMORANDUM-DECISION and ORDER

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

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

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

Local Rule 73.1, and the consent of the parties. (Dkt. Nos. 3,4).

I. PROCEDURAL HISTORY

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

20, 2016, alleging disability beginning on the same date. (Administrative Transcript

(“T”) 108-12, 125). Plaintiff’s application was denied initially on June 22, 2016. (T.

51-54). Plaintiff requested a hearing, which was held before Administrative Law Judge

(“ALJ”) David S. Pang on January 23, 2018. (T. 25-41). At the hearing, the ALJ heard

testimony from plaintiff, as well as vocational expert (“VE”) Diana Simms. (Id.). On

April 30, 2018, the ALJ issued an order denying plaintiff’s claims. (T. 10-17). The

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

denied plaintiff’s request for review on July 12, 2019. (T. 1-3).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

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

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

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

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

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

addition, the plaintiff’s

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

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

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

substantial gainful work which exists in the national economy, regardless

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

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

hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

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

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

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

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

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

significantly limits his physical or mental ability to do basic work

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

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

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 without considering vocational

fcalacitmorasn stu dcohe ass n aogt eh, aevdeu ac altiisotend, aimndp awiromrke next,p tehrei efnocuer t.h . i.n .q Auisrsyu ims iwngh etthheer,

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

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

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

is other work which the claimant can perform.

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

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

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

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

B. Scope of Review

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

whether the correct legal standards were applied and whether substantial evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. FACTS

Plaintiff was born on November 14, 1953, making her 64 years old on the date of

the administrative hearing. (T. 42). She lived alone, attended to her own personal care,

and drove a car. (T. 31-32). For over thirty years, plaintiff worked as a receptionist in

the same dental office. (T. 29-31). Her duties included answering the phone, “pulling

charts,” interacting with patients, and handling paperwork. (T. 30). The heaviest

weight she had been required to lift was approximately 20 pounds. (T. 31).

In June 2016, plaintiff retired from her position due to medical complications.

(T. 29-30). Specifically, plaintiff suffered from chronic dry eye and light sensitivity.

(T. 32). She used eye drops so often that it blurred her vision, causing her to make

mistakes on the job. (T. 30-31). She testified that she was “okay” when she did not

have to work under fluorescent lighting, which caused her extreme pain. (T. 32). She

took both over-the-counter and prescription eye drops to counteract her symptoms. (T.

33-34). Plaintiff also testified that she had acid reflux and temporomandibular joint

dysfunction (“TMJ”). (T. 34, 36).

Plaintiff spent her free time caring for her three cats and assisting her elderly

mother, who lived nearby. (T. 34). She performed her own household chores, including

shoveling snow. (T. 34).

IV. THE ALJ’S DECISION

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

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

activity (“SGA”) since her disability onset date. (T. 12). At step two of the sequential

evaluation, the ALJ found that plaintiff’s chronic dry eye was a severe impairment.

(Id.). At step three of the evaluation, the ALJ found that plaintiff did not have an

impairment or combination of impairments that met or medically equaled the severity

of a listed impairment. (T. 14).

At step four, the ALJ found that plaintiff had the RFC to perform a full range of

work at all exertional levels, “but with the following nonexertional limitations:

[plaintiff] can occasionally work in environments with fluorescent lighting.” (Id.).

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

15). 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. 16). Thus, the ALJ found that plaintiff was not disabled. (T. 17).

V. ISSUES IN CONTENTION

The court interprets the arguments set forth in plaintiff’s pro se brief as follows:

1. Timhpea AirLmJe inmt.p r(oPplaeirnlyti fcfo’sn cBlruideef d(“ tPhla.t’ sp Blari.n”t)i faft’ s4 a, c1i0d) r(eDflkutx. Nwoa.s 1n2o)t. a severe

2. The ALJ improperly concluded that plaintiff did not have a listed

impairment. (Pl.’s Br. at 5).

3. The ALJ’s RFC assessment is not supported by substantial evidence.

(Pl.’s Br. at 5-8).

4. The ALJ did not meet his burden of proof at step five. (Pl.’s Br. at 6, 9).

5. The Appeals Council erred in denying plaintiff’s request for review. (Pl.’s

Br. at 7).

The Commissioner contends that the ultimate RFC determination is supported by

substantial evidence. (Defendant’s Brief (“Def.’s Br.”) at 9-22) (Dkt. No. 15). For the

following reasons, this court agrees with the defendant and will affirm the

Commissioner’s decision.

DISCUSSION

VI. SEVERE IMPAIRMENT

A. Legal Standards

The claimant bears the burden of presenting evidence establishing severity at step

two of the disability analysis. Rhondalee T. v. Berryhill, No. 3:17–CV–1241 (CFH),

2019 WL 1100267, at *5 (N.D.N.Y. Mar. 8, 2019) (citing Taylor v. Astrue, 32 F. Supp.

3d 253, 265 (N.D.N.Y. 2012)). A severe impairment is one that significantly limits the

plaintiff’s physical and/or mental ability to do basic work activities. See 20 C.F.R. §§

404.1520(c), 416.920(c); see also 20 C.F.R. §§ 404.1521(a), 416.921(a) (noting that an

to do basic work activities).

The Regulations define “basic work activities” as the “abilities and aptitudes

necessary to do most jobs,” examples of which include, (1) physical functions such as

walking, standing, lifting, pushing, pulling, reaching, carrying, or handling; (2)

capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and

remembering simple instructions; (4) use of judgment; (5) responding appropriately to

supervision, co-workers and usual work situations; and (6) dealing with changes in a

routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b). “Severity” is determined

by the limitations imposed by an impairment, and not merely by its diagnosis. The

mere presence or diagnosis of a disease or impairment is not, by itself, sufficient to

deem a condition severe. Monique Danielle W. v. Comm’r of Soc. Sec., No. 5:18-CV-

184 (DNH), 2019 WL 2358529, at *4 (N.D.N.Y. June 4, 2019) (quoting Zenzel v.

Astrue, 993 F. Supp. 2d 146, 152 (N.D.N.Y. 2012)).

An ALJ should make a finding of “‘not severe’ . . . if the medical evidence

establishes only a ‘slight abnormality’ which would have ‘no more than a minimal

effect on an individual’s ability to work.’” Mark K. v. Comm’r of Soc. Sec. Admin., No.

5:18-CV-627 (GLS), 2019 WL 4757381, at *1 (N.D.N.Y. Sept. 30, 2019) (quoting

Rosario v. Apfel, No. 97-CV-5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999)).

Although an impairment may not be severe by itself, the ALJ must also consider “the

.” Social Security Ruling (“SSR”) 85-28, 1985 WL 56856, at *3 (1985). However, a

combination of “slight abnormalities,” having no more a minimal effect on plaintiff’s

ability to work, will not be considered severe. Id. The ALJ must assess the impact of

the combination of impairments, rather than assessing the contribution of each

impairment to the restriction of activity separately, as if each impairment existed alone.

Id.

The step two analysis “may do no more than screen out de minimis claims.” Vogt

on behalf of Vogt v. Comm’r of Soc. Sec., No. 18-CV-231, 2019 WL 4415277, at *4

(W.D.N.Y. Sept. 16, 2019) (quoting Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.

1995)). If the disability claim rises above a de minimis level, then the ALJ must

undertake the remaining analysis of the claim at step three through step five. Dixon, 54

F.3d at 1030.

Often, when there are multiple impairments, and the ALJ finds some, but not all

of them severe, an error in the severity analysis at step two may be harmless because the

ALJ continued with the sequential analysis and did not deny the claim based on the lack

of a severe impairment alone. Tryon v. Astrue, No. 5:10-CV-537 (MAD), 2012 WL

398952, at *3 (N.D.N.Y. Feb. 7, 2012) (citing Kemp v. Commissioner of Soc. Sec., No.

7:10-CV-1244 (GLS/ATB), 2011 WL 3876526, at *8 (N.D.N.Y. Aug. 11, 2011)). This

is particularly true because the regulations provide that combined effects of all

separately, would be of sufficient severity. 20 C.F.R. §§ 404.1523, 416.923; Dixon, 54

F.3d at 1031.

B. Application

Plaintiff argues that the ALJ failed to assess her acid reflux as severe at step two

of the sequential evaluation process. Defendant argues that the ALJ properly assessed

plaintiff’s acid reflux, given the absence of any documented limitations stemming from

her diagnosis. For the following reasons, the court finds plaintiff’s arguments without

merit.

At step two, the ALJ identified plaintiff’s chronic dry eye as a severe impairment.

(T. 12). Although he also considered plaintiff’s acid reflux, TMJ disorder, and anxiety

disorder, the ALJ determined that these conditions were non-severe. (Id.). With

respect to plaintiff’s acid reflux, the ALJ pointed out that plaintiff took medication for

her condition “with improvement in her symptoms, and no complications or need for

additional treatment.” (Id.). Plaintiff’s medical records support the ALJ’s conclusion

in this regard. In 2014, plaintiff presented to her primary care provider with complaints

of stomach pain. (T. 203-04). She was diagnosed with gastroesophageal reflux disease

(“GERD”). (T. 205-06). Plaintiff was prescribed Nexium and reported feeling “much

better,” with a decrease in symptom frequency. (T. 204). The few remaining treatment

records in evidence reflect that, during the period of alleged disability, plaintiff’s

treatment in order for plaintiff to go about her daily routine. (T. 250, 253). At the

consultative examination performed in 2016, plaintiff reported that her acid reflux and

GERD were “better” on medication. (T. 237).

Moreover, plaintiff did not cite to any limitations imposed by acid reflux in her

self-reported activities of daily living and aptitudes. Her function report does not

indicate that her acid reflux affected her exertional abilities. (T. 140-41). In fact,

plaintiff admitted to engaging in a wide range of daily activities, such as cooking,

cleaning, laundry, gardening, attending sporting events, shoveling snow, walking for

exercise, and assisting her elderly mother. (T. 32-34, 136-39, 237-38). When asked to

describe any pain she experienced, plaintiff reported headaches and eye strain which

exacerbated her TMJ. (T. 143). This evidence belies plaintiff’s argument, raised for

the first time on appeal, that she would be precluded from bending and lifting due to

acid reflux. (Pl.’s Br. at 12). By failing to provide evidence that this condition caused

any functional limitations, plaintiff failed to meet her burden of showing at step two

that it was a severe impairment. See Fetes v. Saul, No. 18-CV-990, 2020 WL 2315841,

at *5 (W.D.N.Y. May 11, 2020) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)

(claimant bears the burden at step two of showing that he or she has a medically severe

impairment or combination of impairments)).

Even if the ALJ had erred at step two of the sequential analysis, the Second

the remaining steps of the sequential evaluation. See Stanton v. Astrue, 370 F. App’x

231, 233 n.1 (2d Cir. Mar. 24, 2010) (errors at step two are harmless so long as the ALJ

continues with the sequential analysis); Reices-Colon v. Astrue, 523 F. App’x 796, 798

(2d Cir. May 2, 2013) (where an ALJ proceeds past step two and considers the effects

of all of a claimant’s impairments through the remainder of the sequential evaluation

process, any error at step two is harmless). Thus, the court finds no basis for

overturning the Commissioner’s decision based on the ALJ’s step two analysis.

VII. LISTED IMPAIRMENT/APPEALS COUNCIL REVIEW

A. Legal Standard

1. Listed Impairment

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

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).

2. Appeals Council Review

At the final stage of the administrative process of adjudicating claims for benefits

under the Social Security Act, the regulations authorize a claimant to submit new and

material evidence to the Appeals Council when requesting review of an ALJ’s decision.

20 C.F.R. §§ 404.970(b), 416.1470(b). “If the new evidence relates to a period before

the ALJ’s decision, the Appeals Council ‘shall evaluate the entire record including the

new and material evidence submitted . . . [and] then review the case if it finds that the

administrative law judge’s action, findings, or conclusion is contrary to the weight of

the evidence currently of record.’” Tammie S. v. Berryhill, No. 3:18-CV-174 (CFH),

2019 WL 859263, at *5 (N.D.N.Y. Feb. 22, 2019) (quoting Perez v. Chater, 77 F.3d 41,

45 (2d Cir. 1996)). “[I]f the Appeals Council denies review, the ALJ’s decision

becomes the [Commissioner’s] final decision.” Id.; see also §§ 404.981, 416.1481.

determined that the new evidence was insufficient to trigger review of the ALJ’s

decision.” Allborty v. Comm’r of Soc. Sec., No. 6:14-CV-1428 (DNH/ATB), 2016 WL

770261, at *8 (N.D.N.Y. Jan. 28, 2016), report and recommendation adopted, 2016 WL

796071 (N.D.N.Y. Feb. 22, 2016) (citation omitted). As such, “the issue before the

Court is whether the new evidence altered the weight of the evidence before the ALJ so

dramatically as to require the [Appeals Council] to take the case.” Canady v. Comm’r of

Soc. Sec., No. 1:17-CV-0367 (GTS/WBC), 2017 WL 5496071, at *11 (N.D.N.Y. Oct.

4, 2017), report and recommendation adopted, 2017 WL 5484663 (N.D.N.Y. Nov. 14,

2017).

B. Application

Plaintiff argues that both the ALJ and the Appeals Council failed to adequately

consider her impairments at step three of the sequential evaluation. Specifically,

plaintiff contends that her diagnosis of Sjögren’s syndrome met listing 14.10,

compelling a finding of disability. Defendant argues that plaintiff did not satisfy her

burden to show that she fulfills the criteria of listing 14.10 based on the evidence

contained in the administrative record. The court agrees.

In order to satisfy listing 14.10 (Sjögren’s syndrome), a claimant must make a

threshold showing of the following (in addition to a diagnosis of the condition itself):

A. Involvement of two or more organs/body systems, with:

1. One of the organs/body systems involved to at least a

moderate level of severity; and

2. At least two of the constitutional symptoms or signs (severe

fatigue, fever, malaise, or involuntary weight loss).

or

B. Repeated manifestations of Sjögren’s syndrome, with at

least two of the constitutional symptoms or signs (severe

fatigue, fever, malaise, or involuntary weight loss) and one of

the following at the marked level:

1. Limitation of activities of daily living.

2. Limitation in maintaining social functioning.

3. Limitation in completing tasks in a timely manner due to

deficiencies in concentration, persistence, or pace.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.10.

Here, the ALJ did not specifically analyze the elements of listing 14.10, or any

other listed impairment. (T. 14). Instead, the ALJ succinctly stated that he “considered

potentially applicable listings and [SSRs], and has found that the claimant’s

impairments, considered singly and in combination, do not meet or equal their

requirements.” (Id.).

Despite the brevity of his analysis, the court finds no error by the ALJ in failing to

specifically identify listing 14.10 in the step three analysis, as there was no diagnosis of

Sjögren’s syndrome in the evidence he reviewed. Plaintiff did not identify a diagnosis of

administrative hearing in 2018, plaintiff did not testify that she was diagnosed with

Sjögren’s syndrome, or with an autoimmune disorder, despite the ALJ’s inquiry

regarding her medical conditions. (T. 34). The treatment notes in the ALJ’s possession

did not identify Sjögren’s syndrome as a diagnosis,1 and plaintiff did not report that she

suffered from the condition to either consultative examiner. (T. 239, 246). Considering

the absence of any Sjögren’s syndrome diagnosis, it would be unreasonable for this court

to expect the ALJ to have found listing 14.10 “relevant” to plaintiff’s case.

The first time the Commissioner was presented with evidence that plaintiff tested

positive for Sjögren’s syndrome was in June 2018, when plaintiff filed a request for

review of the ALJ’s decision with the Appeals Council. (T. 105-106). In addition to a

written statement describing her condition, plaintiff submitted a 2016 lab report

identifying that she was tested for Sjögren’s syndrome, and a May 18, 2018

correspondence from her daughter-in-law and treating provider, nurse practitioner

(“NP”) Tina Cuda, identifying Sjögren’s syndrome as an “ongoing problem.” (T. 21-

24). The Appeals council received the new evidence, but ultimately denied plaintiff’s

request for review, concluding that the new evidence did “not show a reasonable

probability that it would change the outcome of the decision.” (T. 2).

1The last treatment record of evidence, dated July 6, 2016, indicates that plaintiff’s primary care

provider ordered a panel of “fasting labs,” including “ANA w/Reflex ENA + DNA/DS + SJORGENS.”

(T. 251).

review based on the new evidence of her Sjögren’s syndrome diagnosis. I disagree.

“The Appeals Council will review a case if . . . the Appeals Council receives additional

evidence that is new, material, and relates to the period on or before the date of the

hearing decision, and there is a reasonable probability that the additional evidence would

change the outcome of the decision.” 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5).

“New evidence is any evidence that has not been considered previously during the

administrative process[,]” that is not cumulative. Oshea v. Saul, No. 3:19-CV-232, 2020

WL 2374935, *4 (D. Conn. Mar. 30, 2020) (citing McIntire v. Astrue, 809 F. Supp. 2d

13, 21 (D. Conn. 2010)). “Evidence is material if it is (i) relevant to the time period for

which benefits have been denied and (ii) probative, meaning it provides a reasonable

probability that the new evidence would have influenced the Commissioner to decide the

claimant’s application differently.” Id.

The court agrees that the evidence presented to the Appeals Council was “new,” to

the extent these records were not submitted to the ALJ for consideration. However, even

assuming the new evidence’s relevancy to the time period at issue, it was not probative

because there was no reasonable possibility that it would have altered the ALJ’s step

three determination. At most, the records submitted to the Appeals Council provided

evidence of plaintiff’s diagnosis of Sjögren’s syndrome. A mere diagnosis, however,

does not necessarily support a finding of limitations, nor does it alone satisfy the criteria

(S.D.N.Y. June 19, 2018) (listing cases).

In this case, plaintiff’s submission to the Appeals Council lacked any medical

opinion or functional analysis that materially differed from the evidence which was

already before the ALJ and the vocational expert when they reached their conclusions.

See Suttles v. Colvin, 654 Fed. App’x 44, 47 (2d Cir. 2016) (Finding “no reasonable

possibility that consideration of [new evidence] would have altered the ALJ’s decision,

because the evidence . . . was not materially different from that which was already before

the ALJ and vocational expert when they reached their conclusions.”). In fact, the new

evidence failed to address plaintiff’s alleged limitations as a result of her Sjögren’s

syndrome in any meaningful way. Plaintiff testified at the administrative hearing in

2018, over two years after she tested positive for Sjögren’s syndrome. Thus, the

symptoms and limitations which plaintiff testified to at the hearing presumably included

those caused by her diagnosis. There is no medical evidence that, during the period

between plaintiff’s lab test and the 2018 administrative hearing, plaintiff’s condition

deteriorated. More importantly, the new evidence did not provide what the

administrative record lacked – proof that, during the alleged period of disability, plaintiff

suffered from at least two of the constitutional symptoms or signs (severe fatigue, fever,

malaise, or involuntary weight loss) required to meet listing 14.10.

If, as plaintiff contends, her autoimmune disorder has progressively become worse

want to consider filing a new application for benefits to address these issues, if she has

not done so already. Quinlivan v. Comm’r of Soc. Sec., No. 08-CV-1175 (MAD/VEB),

2011 WL 2413491, at *8 (N.D.N.Y. May 23, 2011) (if the plaintiff suffered an

aggravation of an impairment after the ALJ’s decision, the proper remedy would be to

submit a new application). Nevertheless, this court finds that the Commissioner’s step

three analysis was supported by substantial evidence and is not a basis for remand.

VIII. RFC/WEIGHT OF THE EVIDENCE/STEP FIVE ANALYSIS

A. Legal Standards

1. RFC

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

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

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

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

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

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

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

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

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

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

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 also 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).

2. Weight of the Evidence

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

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 four Burgess

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

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.

3. Step Five Analysis

At step five of the disability analysis, the burden of proof 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). In the ordinary case, the ALJ

carries out this fifth step by applying the applicable Medical-Vocational Guidelines

(“Guidelines”). Id. (citing Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999)).

“If a claimant has nonexertional limitations that ‘significantly limit the range of

work permitted by his exertional limitations,’ the ALJ is required to consult with a

vocational expert[,]” rather than relying solely on the Guidelines. Zabala v. Astrue, 595

F.3d 402, 410 (2d Cir. 2010) (citing Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986)).

additional impairment causes an “additional loss of work capacity beyond a negligible

one or, in other words, one that so narrows a claimant’s possible range of work as to

deprive him of a meaningful employment opportunity.” Bapp v. Bowen, 802 F.2d at

605-06. The appropriateness of applying the Guidelines and the necessity for expert

testimony must be determined on a case-by-base basis. Id. at 605.

B. Application

Plaintiff contends that the RFC determination is not supported by substantial

evidence, and does not adequately account for her physical limitations. Specifically,

plaintiff disputes that she could perform the exertional requirements of medium or heavy

work. Plaintiff also argues that the ALJ omitted certain functional and environmental

limitations that prevent her from performing substantial gainful employment. Last,

plaintiff argues that the ALJ improperly relied on her activities of daily living in

determining her physical RFC.

The record reflects that, during the alleged period of disability, plaintiff visited,

infrequently, with her primary care provider, N.P. Cuda, as well as opthamologist

Theodore J. Wadas, O.D. Plaintiff testified that she visited Dr. Wadas every two years

for follow-up appointments. (T. 33). On January 25, 2016, plaintiff presented to Dr.

Wadas for a “re-check.” (T. 253). At that time, plaintiff complained that her eyes felt

dry, and reported some improvement with eye drops. (Id.). Plaintiff denied any routine

Wadas’ examination, he found plaintiff to have asymptomatic trichiasis2 in the left eye,

dry eye syndrome in both eyes, and superficial punctate keratitis3 in both eyes. (Id.). He

noted that her dry eye was worsening, but the punctate keratitis had improved. (Id.).

Based on his impressions, Dr. Wadas prescribed plaintiff lubricating gel and various eye

drops.4 (Id.).

The record otherwise contains one treatment note from NP Cuda during the

alleged period of disability. On July 6, 2016, plaintiff presented to her primary care

provider for an eye evaluation and headache complaints. (T. 247). She exhibited 20/20

corrected vision in both eyes. (Id.). At the visit, plaintiff complained of chronic dry eye

that was worse with wind and air conditioning. (T. 248). Plaintiff also reported light

sensitivity that was worse under the fluorescent lighting at her place of employment.

(Id.). NP Cuda indicated that plaintiff was only following up with Dr. Wadas on an as

needed basis, due to improvement of her issues “at max ability for now.” (Id.). NP Cuda

also noted that plaintiff had to leave her job “due to inability to work with eye irritation

under the fluorescents.” (Id.). As a result of her examination, NP Cuda ordered a variety

2“Trichiasis is a common eyelid problem. Eyelashes grow inwards toward the eye. The lashes

rub against the cornea, the conjunctiva, and the inner surface of the eyelids.”

https://www.aao.org/eye-health/diseases/what-is-trichiasis

3Superficial punctate keratitis is an eye disorder caused by death of small groups of cells on the

surface of the cornea. See

https://www.merckmanuals.com/home/eye-disorders/corneal-disorders/superficial-punctate-keratitis

4Plaintiff testified that her punctate keratitis healed by March 2016. (T. 33).

Neither NP Cuda nor Dr. Wadas prepared a medical opinion on behalf of

plaintiff.5 However, the record contains a June 16, 2016 consultative examination report

by internist Brian Cole, M.D. (T. 237-40). After recording plaintiff’s medical and social

history, Dr. Cole performed a physical examination of plaintiff. (T. 238). He recorded

plaintiff’s vision as 20/30 with glasses. (T. Id.). The results of his eye examination

were otherwise normal. (Id.). Furthermore, plaintiff exhibited a normal gait, and a full

squat accompanied by knee pain. (Id.). She exhibited full range of motion in her

cervical spine, lumbar spine, shoulders, elbows, forearms, wrists, hips, knees and ankles.

(T. 239). Plaintiff exhibited full strength in her upper and lower extremities, and full

grip strength. (Id.). Based on his examination, Dr. Cole opined that plaintiff was

“restricted from activities requiring fine visual acuity because of chronic dry eye and

vision problems.” (T. 240).

The ALJ considered Dr. Cole’s opinion and gave it “partial weight.” (T. 15). The

ALJ recognized that plaintiff’s visual impairment affected her ability to perform work

activities, however he found Dr. Cole’s description of “fine visual acuity” to be vague.

(Id.). The ALJ gave this opinion limited weight to the extent that it referred to plaintiff’s

ability to read normal print, which otherwise appeared intact based on the administrative

5It appears that when the Commissioner requested plaintiff’s medical records, he also sent a

form requesting additional information and opinions from the providers themselves. (T. 186, 235).

Neither Dr. Wadas nor NP Cuda returned a completed opinion to the agency.

(Id.).

The ALJ did not err in concluding that plaintiff could perform a full range of work

at all exertional levels. Plaintiff’s treating sources did not assess any limitations that

would preclude plaintiff from performing such work, and Dr. Cole did not include any

exertional limitations in his medical source statement. Plaintiff’s argument that the ALJ

failed to “test” her ability to lift and carry over 50 pounds is misplaced. The burden lies

with plaintiff, not the Commissioner, to establish that she suffers from limitations

resulting in a restrictive RFC. See Smith v. Berryhill, 740 Fed. App’x 721, 726 (2d Cir.

2018) (“[Plaintiff] had a duty to prove a more restrictive RFC, and failed to do so.”)

(citations omitted); Williams v. Berryhill, No. 3:17-CV-00383 (CFH), 2018 WL 987257,

*5 (N.D.N.Y. 2018) (“[t]he plaintiff bears the burden of producing evidence to establish

any functional limitations that would prevent him or her from engaging in substantial

gainful activity”) (citations omitted). As discussed, there is little in the record to suggest

that plaintiff suffered from any exertional limitations due to an impairment.

Furthermore, plaintiff represented to the agency that she fully retained the ability

to care for her own home, assist her elderly mother, grocery shop, shovel snow, and

garden. The ALJ properly relied on plaintiff’s activities as a factor in his overall

evaluation of the medical opinion evidence and in formulating her RFC. See Cummings

v. Comm. of Soc. Sec., No. 3:17-CV-0631 (WBC), 2018 WL 2209204, at *8 (N.D.N.Y.

in part, on plaintiff’s activities of daily living, such as caring for grandchildren and

ability to use a computer, in assessing plaintiff's mental RFC)); see also Cichocki v.

Astrue, 729 F.3d 172, 178 (2d Cir. 2013) (ALJ properly considered the plaintiff’s varied

daily activities in formulating the RFC).

The remainder of the ALJ’s RFC determination is likewise supported by

substantial evidence. In her brief, plaintiff sets forth several arguments as to why the

RFC does not account for all of her limitations. However, most of the limitations she

cites are not supported by the medical evidence of record, or her own representations to

the agency throughout the application process. As previously discussed, there is no

medical evidence that plaintiff’s acid reflux would prevent her from bending and lifting.

In fact, this argument is contradicted by plaintiff’s reported activities of daily living. Nor

is there any evidence that plaintiff’s TMJ caused any functional limitations that

prevented her from working. The ALJ specifically recognized plaintiff’s TMJ

symptoms, but concluded they were adequately treated with a daily baby aspirin, as there

was no further treatment discussed by plaintiff’s treatment providers. (T. 12). Plaintiff

also testified that she was “allergic to the sun.” (T. 33). Again, plaintiff’s contention

that she could not work outside is belied by her own representations that she enjoyed

gardening, walked for exercise, and shoveled her own snow. The medical evidence does

not reference any functional limitations imposed by plaintiff’s alleged allergy. Because

to omit them from plaintiff’s RFC. See Dawn T. v. Saul, No. 8:19-CV-619 (MAD), 2020

WL 1915259, at *7 (N.D.N.Y. Apr. 20, 2020) (quoting Dumas v. Schweiker, 712 F.2d

1545, 1553 (2d. Cir. 1983) (“The Secretary is entitled to rely not only on what the record

says, but also on what it does not say”).

Moreover, the court finds plaintiff’s argument that the ALJ did not adequately

address her symptoms of both light sensitivity and chronic dry eye to be without merit.

After finding plaintiff’s chronic dry eye to be a severe impairment, the ALJ discussed the

symptoms flowing from her diagnosis, including light sensitivity as a result of the

corneal abrasions caused by chronic dry eye. At her administrative hearing, plaintiff

emphasized that it was the overwhelming fluorescent lighting at her prior place of

employment which precluded her ability to work. (T. 32).6 Plaintiff did not testify

about additional limitations imposed by her chronic dry eye, despite being afforded the

opportunity to do so. (T. 36). This testimony mirrored plaintiff’s representation in her

functional report that her dry eye resulted in an extreme sensitivity to fluorescent light,

and that she was “reasonably okay” when she avoided such lighting. (T. 141, 143). At

her consultative examination, plaintiff reiterated that her chronic dry eye caused

“extreme” light sensitivity, especially with fluorescent lights. (T. 239). Other than

6“I have chronic dry eye. So, as long as I stay away from the fluorescent lighting and, I can’t,

like I can’t crochet or do a lot of things that I used to do before because my eyes are so sensitive to the

light. As long as I stay away from it, I’m okay, but to work under it, like, say, right here, these lights

are killing me in this room.”

chronic dry eye precluded plaintiff from working under other environmental factors,

such as wind, forced air, and dust, as plaintiff presently argues.

The ALJ properly considered the medical evidence of record in concluding that

plaintiff was limited to occasionally work in environments with fluorescent lighting. (T.

14). In formulating a claimant’s RFC, an ALJ does not have to adhere to the entirety of

one medical source’s opinion. See Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)

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

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

available to make an RFC finding that was consistent with the record as a whole.”).

Here, the ALJ relied primarily on Dr. Cole’s medical opinion in crafting his RFC

determination. However, the ALJ afforded less weight to Dr. Cole’s vague opinion

regarding restrictions from activities requiring fine visual acuity. Specifically, the ALJ

rejected this opinion to the extent that it referred to plaintiff’s ability to read normal

print. The ALJ’s evaluation of Dr. Cole’s opinion was not improper, as “[t]here is no

requirement that the ALJ accept every limitation in the opinion of a consultative

examiner.” Kikta v. Comm’r of Soc. Sec., No. 15-CV-0060, 2016 WL 825259, at *9

(N.D.N.Y. Feb. 9, 2016) (citing Pellam v. Astrue, 508 F.App’x 87, 89 (2d Cir. 2013)).

Moreover, the court’s review of the record otherwise supports the ALJ’s

evaluation of Dr. Cole’s opinion. As the ALJ pointed out, plaintiff retained the ability to

NP Cuda and Dr. Wadas found that plaintiff had 20/20 corrected vision bilaterally (T.

247, 254), and there is otherwise no evidence in the record showing that plaintiff was

limited from reading normal print. To the extent Dr. Cole’s opinion regarding “fine

visual acuity” referred to the affect of lighting conditions on her vision, the ALJ

considered this opinion and incorporated it into his ultimate findings. Thus, the court

finds no basis to disturb the ALJ’s decision on this issue. See Natrella v. Comm’r of

Soc. Sec., No. 1:19-CV-01237, 2020 WL 1041067, at *7 (S.D.N.Y. Mar. 3, 2020) (citing

Banyai v. Berryhill, 767 F. App’x 176, 177 (2d Cir. 2019) (Commissioner’s findings of

fact must be upheld unless reasonable factfinder “would have to conclude otherwise”)).

Last, the ALJ’s step five analysis is supported by substantial evidence, and any

purported error regarding plaintiff’s ability to work outside was harmless. At the

administrative hearing, the ALJ posed a hypothetical to the VE which reflected his

ultimate assessment of plaintiff’s RFC. The VE first explained that the Dictionary of

Occupational Titles (“DOT”) does not specifically address lighting, thus his testimony

would be based on his knowledge and experience in the field. (T. 37-38). Then, based

on the hypothetical, the VE concluded that plaintiff could perform the job of a day

worker, of which there would be approximately 150,000 jobs available in the economy.

(T. 37). The VE considered the fact that this position was performed inside an

individual’s home, where fluorescent lighting would not be present. (T. 38). The VE

including yard worker and groundskeeper. (T. 37-38).

On appeal, plaintiff argues that her impairments precluded her from performing

any of the jobs identified by the VE. With respect to the position of day worker, plaintiff

argues that (1) the required bending and lifting would exacerbate her acid reflux, and (2)

the job would expose her to dirt, dust, and forced air, necessitating the overuse of her eye

drops. (Pl.’s Br. at 12). For the reasons previously discussed, these arguments are not

supported by the medical evidence of record. Therefore, even if plaintiff was precluded

from working in the remaining two positions referenced by the VE because of her sun

allergy, the Commissioner nevertheless met his burden at step five by virtue of the

number of jobs available for the position of day worker. See Waldvogel v. Comm’r of

Soc. Sec., No. 6:16-CV-0868 (GTS), 2017 WL 3995590, at *13 (N.D.N.Y. Sept. 11,

2017) (“This Court has noted that a ‘significant number’ of jobs has in practice been held

to be a fairly minimal number, and has acknowledged that other courts have found that

as little as 10,000 jobs can constitute a significant number for the purpose of a Step Five

finding.”); Sample v. Comm’r of Soc. Sec., No. 17-CV-635, 2019 WL 2464490, at *6

(W.D.N.Y. June 13, 2019) (Any error about whether plaintiff could work as a hand

packager was harmless, because the ALJ also found that she could perform another job

which existed in significant numbers in the national economy).

WHEREFORE, based on the findings above, it is hereby

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

DISMISSED, and it is

ORDERED, that the Clerk enter judgment for DEFENDANT.

Dated: July 24, 2020 4 (oor KB ho

Andrew T. Baxter

U.S. Magistrate Judge

31