# Hochbrueckner v. Commissioner of Social Security

> District Court, N.D. New York · August 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10313100

## Case

- **Court:** District Court, N.D. New York
- **Decided:** August 5, 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/10313100

## How later opinions describe it (automated extraction)

- finding the ALJ properly relied on plaintiffs activities of daily living, including the ability to walk dogs and clean her home, were consistent with an RFC to perform light work
- stating that the “treating physician rule . .. mandates that the medical opinion of a claimant’s treating physician is given controlling weight if it is well supported by medical findings and not inconsistent with other substantial record evidence.”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

ELIZABETH H.,
Plaintiff,
V.
No. 3:19-CV-1020
5 COMMISSIONER OF SOCIAL SECURITY, (CFH)
Defendant.

APPEARANCES: OF COUNSEL:
Elizabeth H.
P.O. Box 365
Grand Gorge, New York 12434
Plaintiff pro se
Social Security Administration JUNE L. BYUN, ESQ.
Office of Regional General Counsel,
Region ||
26 Federal Plaza, Room 3904
New York, New York 10278
Attorney for defendant
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION AND ORDER'
Plaintiff pro se Elizabeth H.? brings this action pursuant to 43 U.S.C. § 405(g)
seeking review of a decision by the Commissioner of Social Security (“the
Commissioner”) denying her application for disability insurance benefits. See Dkt. No. 1

1 Parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. §
636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 72.2(b), and General Order 18. See Dkt. No. 4.
2 In accordance with 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
2018 to better protect personal and medical information of non-governmental parties, this Memorandum-
Decision and Order will identify plaintiff by first name and last initial.

(“Compl.”). Plaintiff moves for reversal and remand for further administrative
proceedings, and the Commissioner cross moves for a judgment on the pleadings. See
Dkt. Nos. 12, 14. For the following reasons, the Commissioner’s determination is
affirmed.

° I. Background
A. Factual Background
Plaintiff is a high school graduate and has past relevant work as a nurse’s
assistant and a food services manager. See T. at 67-69.° Generally, plaintiff's alleged
disability consists of bilateral carpal tunnel syndrome and osteoarthritis, depression, and
anxiety. See id. at 37, 120. Plaintiff is right-handed. See id. at 14.
I
B. Procedural Background
On May 9, 2016, plaintiff protectively filed a Title Il application for disability
insurance benefits. See T. at 30, 223. On May 25, 2016, plaintiff protectively filed a
Title XVI application for supplemental security income. See id. at 30. In both
applications, plaintiff alleged a disability onset date of December 16, 2014. See id. at
30, 223. The applications were denied on August 30, 2016. See id. at 145. Plaintiff
requested a hearing, see id. at 161, and a hearing was held on May 17, 2018, before
Administrative Law Judge (“ALJ”) Carl E. Stephen. See id. at 62-83.4 On August 10,

3 “T.” followed by a number refers to the pages of the administrative transcript filed by the Commissioner.
Dkt. No. 10-1. Citations refer to the pagination in the bottom right-hand corner of the administrative
transcript, not the pagination generated by CM/ECF.
4 Although plaintiff is now proceeding pro se, she was represented by counsel at the hearing and in
making her request for review of the ALJ’s decision at the Appeals Council. See T. at 25, 62.

2018, the ALJ rendered an unfavorable decision. See id. at 27. On June 19, 2019, the
Appeals Council (“AC”) denied plaintiff's request for review, making the ALJ’s decision
the final determination of the Commissioner. See id. at 1. Plaintiff commenced this
action on August 22, 2019. See Compl.

° ll. Applicable Law
A. Standard of Review
In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),
1388(c)(3); Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990). Rather, the Commissioner's determination will only be reversed if the correct

legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d 464,
467 (2d Cir. 1982). Substantial evidence is “more than a mere scintilla,” meaning that in
the record one can find “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)).
| The substantial evidence standard is “a very deferential standard of review
....[This] means once an ALJ finds facts, we can reject [them] only if a reasonable
factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm’, 683
F.3d 443, 448 (2d Cir. 2012) (internal quotations marks omitted). Where there is
reasonable doubt as to whether the Commissioner applied the proper legal standards,
the decision should not be affirmed even though the ultimate conclusion is arguably
supported by substantial evidence. See Martone v. Apfel, 70 F. Supp. 2d 145, 148

(N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986). However, if the correct legal
standards were applied and the ALJ’s finding is supported by substantial evidence, suc
finding must be sustained “even where substantial evidence may support the plaintiff's
position and despite that the court’s independent analysis of the evidence may differ
from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992)
o (citation omitted).

B. Determination of Disability
“Every individual who is under a disability shall be entitled to a disability . . .
benefit... □□ 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
m| mental impairment... which has lasted or can be expected to last for a continuous
period of not less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable
impairment is an affliction that is so severe that it renders an individual unable to
continue with his or her previous work or any other employment that may be available to
him or her based upon age, education, and work experience. See id. § 423(d)(2)(A).
Such an impairment must be supported by “medically acceptable clinical and laboratory
:| diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is
“based on objective medical facts, diagnoses[,] or medical opinions inferable from [the]
facts, subjective complaints of pain or disability, and educational background, age, and
work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3
(S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
1983)).

The Second Circuit employs a five-step analysis, based on 20 C.F.R. §
404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
lf he [or she] is not, the [Commissioner] next considers
whether the claimant has a “severe impairment” which
significantly limits his [or her] physical or mental ability to do
o 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 is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner] will consider him [or her] disabled without
considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a
claimant who is afflicted with a “listed” impairment is unable
to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant's severe
impairment, he [or she] has the residual functional capacity
to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past
work, the [Commissioner] then determines whether there is
other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (spacing added). “If at any step a
finding of disability or non-disability can be made, the SSA will not review the claim

further.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003). The plaintiff bears the initial
burden of proof to establish each of the first four steps. See DeChirico v. Callahan, 134
F.3d 1177, 1180 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses
to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still
able to engage in gainful employment somewhere. ld. (citing Berry, 675 F.2d at 467).

lll. The ALJ’s Decision
Applying the five-step disability sequential evaluation, the ALJ first determined
that plaintiff had not engaged in substantial gainful activity since December 16, 2014,
the alleged disability onset date. See T. at 33. At step two, the ALJ found that plaintiff
had the following severe impairments, which significantly limit her ability to perform
®| basic work activities: bilateral hand disorders. See id. The ALJ found plaintiff's
depression and anxiety to be non-severe. See id. At step three, the ALJ determined
that plaintiff does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. See id. at 36. Before reaching step four, the ALJ concluded
that plaintiff “has the residual functional capacity to perform light work as defined in 20
m| CFR 404.1567(b) and 416.967(b) except can frequently handle and finger with bilateral
upper extremities.” Id. At step five, the ALJ determined that plaintiff is capable of
performing past relevant work as a food service manager because performing such
work was not precluded by her residual functional capacity (“RFC”). See id. at 41.
Thus, the ALJ determined that, as of December 16, 2014, through the date of the
decision, plaintiff has not been under a disability within the meaning of the Social
m| Security Act. See id. at 42.

IV. The Parties’ Arguments
Plaintiff, now proceeding pro se, argues: (1) that the AC erred by not remanding
the matter to the ALJ based on “new and material evidence” she submitted; and (2) the

ALJ’s RFC determination is not supported by substantial evidence. Dkt. No. 12 at 1.°
Liberally construing plaintiffs arguments, as the Court must,® she contends that her
newly submitted evidence contradicts the ALJ’s findings concerning the intensity and
persistence of her bilateral hand pain. See id. at 3-4. Further, plaintiff avers that the
ALJ’s RFC determination is not supported by substantial evidence because it is not
supported by the medical opinion evidence, including the newly submitted opinion of Dr.
Paul Llobet (“Dr. Llobet”), plaintiff's primary care physician, and Physician’s Assistant
Moore (“PA Moore’), a treating PA, which the ALJ considered in rendering her
determination. See id. at 4-5.
The Commissioner argues that, contrary to plaintiff's contentions, the ALJ’s
determination is supported by substantial evidence. See Dkt. No. 14 at 7. In particular,
the Commissioner contends that the ALJ appropriately considered and weighed the

5 The Court's citations to the parties’ briefs refer to the pagination generated by CM/ECF at the headers
of the page, not to the pagination in the bottom right-hand corner of the administrative transcript.
5 Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant
special solicitude. See Treistman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the
Second Circuit stated,
[t]here are many cases in which we have said that a pro se litigant is
entitled to special solicitude, that a pro se litigant's submissions must be
construed liberally, and that such submissions must be read to raise the
strongest arguments that they suggest. At the same time, our cases
have also indicated that we cannot read into pro se submissions claims
that are not consistent with the pro se litigant’s allegations, or arguments
that the submissions themselves do not suggest, that we should not
excuse frivolous or vexatious filings by pro se litigants, and that pro se
status does not exempt a party from compliance with relevant rules of
procedural and substantive law ....
Id. (internal quotation marks, citations, and footnote omitted); see also Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (“On occasions too numerous to count, we have reminded
district courts that when [a] plaintiff proceeds pro se, . . . a court is obligated to construe his pleadings
liberally.”) (internal quotation marks and citations omitted); Abbas v. Colvin, No. 6:14-CV-0959 (GTS),
2015 WL 4078234, at *2 n.2 (N.D.N.Y. July 6, 2015) (applying special solicitude to the pro se plaintiff's
arguments in his social security appeal).

relevant medical opinion evidence, medical records, and plaintiff's daily activities, and
reached an RFC determination supported by substantial evidence. See id. at 7-14.
Moreover, the Commissioner argues that the new evidence plaintiff submitted to the AC
does not alter the weight of the evidence such that it would likely change the outcome o
the case. See id. at 14.
a

V. Discussion’
A. Scope of Review of New Evidence
As a general matter, “[t]he Appeals Council is obligated to consider ‘new [and]
material’ evidence that ‘relates to the period on or before the date of the administrative
law judge hearing decision.” Patterson v. Colvin, 24 F. Supp. 3d 356, 372 (S.D.N.Y.
m| 2014) (quoting 20 C.F.R. § 404.970(b)). New evidence is “material” if it is: “(1) relevant
to the claimant's condition during the time period for which benefits were denied and (2)
probative.” Stratton v. Colvin, 51 F. Supp. 3d 212, 218 (N.D.N.Y. 2014) (quoting
Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004)). However, “[t]he Second Circuit
[has] clearly stated that when new evidence is submitted to the AC and the AC denies
review, the reviewing court's role is to review the entire administrative record, including
the new evidence, and determine whether substantial evidence supported the
Commissioner's final decision.” Canady v. Comm’r of Soc. Sec., 1:17-CV-0367
(GTS/WBC), 2017 WL 5496071, at *10 (N.D.N.Y. Oct. 4, 2017) (citing Lesterhuis v.
Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (“[NJew evidence submitted to the [AC] following
the ALJ’s decision becomes part of the administrative record for judicial review when

’ All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, hav
been provided to plaintiff.

the [AC] denies review of the ALJ’s decision.” (internal quotation marks and citations
omitted))), report & recommendation adopted, 1:17-CV-0367 (GTS/WBC), 2017 WL
5484663 (N.D.N.Y. Nov. 14, 2017). Under those circumstances, the question becomes
“whether the new evidence altered the weight of the evidence before the ALJ so
dramatically as to require the AC to take the case.” Canady, 2017 WL 5496071, at *11;
o see Patterson, 24 F. Supp. 3d at 373 (“[T]his requirement has been interpreted to mean
that there must be a reasonable possibility that the new evidence would have influenced
the [Commissioner] to decide claimant's application differently.” (internal quotation
marks and citation omitted)).
Here, in seeking review of the ALJ’s hearing decision, plaintiff submitted medical
records from various providers, including Dr. Llobet’s medical source statement. See T.
2. In denying review of the ALJ’s decision, the AC acknowledged plaintiff's
submission new evidence. See id. at 2. However, the AC concluded that the new
evidence either “d[id] not show a reasonable probability [of] chan[ing] the outcome of
the [ALJ’s] decision,” or “d[id] not relate to the period at issue” and, “[t]herefore, . . . d[id]
not affect the decision about whether [plaintiff] w[as] disabled beginning on or before
August 10, 2018,” the date of the ALJ’s decision. Id. Moreover, the AC notified plaintiff
| that “[i]f [she] want[ed the Commissioner] to consider whether [she] was disabled after
August 10, 2018, [she] need[ed] to apply again.” Id.
Plaintiffs new evidence became part of the administrative record when plaintiff
submitted it to the AC and the AC denied review. See Canady, 2017 WL 5496071, at
“10. Accordingly, the Court’s scope of review is of this matter will be to determine
“whether substantial evidence supports the ALJ’s decision, when the new evidence is

included in the administrative record” and “the Court will not address plaintiff's
arguments regarding the [AC]'s alleged errors in considering the new evidence.” Ryder
v. Colvin, No. 1:15-CV-00241 (MAT), 2015 WL 9077628, at *4 (W.D.N.Y. Dec. 16,
2015).

° B. Analysis
1. The ALJ’s RFC Determination
RFCis defined as “‘what an 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.” Pardee v.
Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (quoting_Melville v. Apfel, 198 F.3d
52 (2d Cir. 1999) (citation omitted)). “In making a [RFC] determination, the ALJ
must consider a claimant’s physical abilities, mental abilities, symptomology, including
pain and other limitations which could interfere with work activities on a regular and
continuing basis.” Pardee, 631 F. Supp. 2d at 210 (citing 20 C.F.R. § 404.1545(a)).
“Ultimately, ‘[a]ny impairment-related limitations created by an individual’s response to
demands of work . . . must be reflected in the RFC assessment.” Hendrickson v.
Astrue, 5:11-CV-927 (ESH), 2012 WL 7784156, at *3 (N.D.N.Y. Dec. 11, 2012) (quoting
Social Security Ruling (“SSR”) 85-15, 1985 WL 56857, at *6 (S.S.A. Jan. 1, 1985)). The
RFC determination “must be set forth with sufficient specificity to enable [the Court] to
decide whether the determination is supported by substantial evidence.” Ferraris v.
Heckler, 728 F.2d 582, 587 (2d Cir. 1984).

10

When assessing a claimant’s RFC, an ALJ is entitled to rely on opinions from
both examining and non-examining State agency medical consultants because these
consultants are qualified experts in the field of Social Security disability. See Frey ex
rel. A.O. v. Astrue, 485 F. App’x 484, 487 (2d Cir. 2012) (summary order) (“The report 0
a State agency medical consultant constitutes expert opinion evidence which can be
o given weight if supported by medical evidence in the record.”); Little v. Colvin, No. 5:14-
CV-0063 (MAD), 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) (“State agency
physicians are qualified as experts in the evaluation of medical issues in disability
claims. As such, their opinions may constitute substantial evidence if they are
consistent with the record as a whole.”) (internal quotation marks omitted and citations).
“An ALJ should consider all medical opinions received regarding the claimant.” Reider
m|V. Colvin, No. 15-CV-6517P (MWP), 2016 WL 5334436, at *5 (W.D.N.Y. Sept. 23, 2016)
(internal quotation marks and citation omitted)); see also SSR 96-8p, 1996 WL 374184,
at *5 (S.S.A. July 2, 1996) (explaining that “[tIhe RFC assessment must be based on ail
of the relevant evidence in the case record.”).
Plaintiff argues the ALJ’s RFC determination is not supported by substantial
evidence because it contradicts the medical opinion of PA Moore, which was before the
ALJ when he rendered his decision, and the opinion of Dr. Llobet, which was submitted
for the first time to the AC. See Dkt. No. 12 at 4-5. In particular, plaintiff argues that Dr.
Llobet’s and PA Moore’s opinions establish that plaintiff is unable to perform light work
as determined by the ALJ because those opinions identify limitations reducing her abilit
to lift to, at most, only occasionally up to 10 Ibs. and her ability to grasp, turn, or twist to,
at most, 20% of an eight-hour workday. See id. at 4. The Court disagrees.

11

As stated above, the ALJ determined that plaintiff had the RFC “to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except can frequently handle
and finger with bilateral upper extremities.” T. at 36. The regulations define “[IJight
work” as work that
involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10
o pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.
20 C.F.R. §§ 404.1567(b), 416.967(b) (emphasis added). “Frequent” is defined as
I
“occurring from one-third to two-thirds of the time” in the course of an eight-hour
workday, and “occasional” is defined as “occurring from very little up to one-third of the
time.” SSR 83-10, 1983 WL 31251, at *5, 6 (S.S.A. Jan. 1, 1983).
In reaching his RFC determination, the ALJ afforded “great weight” to the opinion
of consultative medical examiner Dr. Puri. T. at 40. Dr. Puri conducted an internal
medical examination of plaintiff on August 16, 2016. See T. at 455-57. As relevant
tr!
here, Dr. Puri noted that plaintiff had a “[f]ull ROM of shoulders, elbows, forearms, and
wrists bilaterally” and that her “[j]oints [we]re stable and nontender except for bilateral
hip and hand tenderness on palpitation and movement.” Id. at 457. Dr. Puri further
observed that plaintiff's deep tendon reflexes were “physiological and equal in upper
and lower extremities” and that plaintiff had “[n]o sensory defects” and that her
“[s]trength [was] 5/5 in the upper and lower extremities.” Id. In addition, Dr. Puri

12

concluded that plaintiff's “[hJand and finger dexterity [was] intact’; her “[g]rip strength
show[ed] some give-way strength to 4+/5 secondary to local tenderness”; and that her
“[iJndividual muscle strength [wa]s stronger.” Id. Dr. Puri diagnosed plaintiff with
“[mJultiple joint pains secondary to degenerative joint disease and post[-bilateral thumb]
surgery [with tendon repairs].” Id. Based on her exam findings, Dr. Puri provided the
o following medical source statement:
[Plaintiff] did not have any objective limitations to
communicate or fine motor or gross motor activity. There
were no objective limitations to her gait or to her activities of
daily living on examination today. It is recommended that
she not lift heavy weights and be seen by a psychologist.
[Plaintiff] has mild limitations to gripping.
Id. at 457-48.
As an initial matter, Dr. Puri’s opinion that plaintiff “has mild limitations to
. gripping” supports the ALJ’s RFC determination that she is capable of performing a full
range of light work and can frequently handle and finger. T. at 458. Indeed, “[c]ourts
within this Circuit have held that opinions of similar mild to moderate limitations support
RFC findings that claimants are capable of light work.” Gerry v. Berryhill, No. 17-CV-
7371 (JS), 2019 WL 955157, at *3 (E.D.N.Y. Feb. 26, 2019) (internal quotation marks
and citation omitted); see Bates v. Berryhill, No. 17-CV-3311 (ADS), 2018 WL 2198763,
at *11 (E.D.N.Y. May 14, 2018) (holding that “mild to moderate limitation for sitting, and
a moderate limitation in standing, bending, and lifting or carrying on a continuing basis”
supported the ALJ’s RFC determination that the claimant could perform light work);
Moore v. Comm’r of Soc. Sec., No. 1:16-CV-270 (DJS), 2017 WL 1323460, at *8
(N.D.N.Y. Apr. 10, 2017) (“[MJoderate limitations for sitting, standing, walking, bending,
climbing stairs, and lifting or carrying heavy objects... is consistent with light work.”);

13

Gurney v. Colvin, No. 14-CV-688S (WMS), 2016 WL 805405, at *3 (W.D.N.Y. 2016)
(finding that moderate limitations with respect to “repetitive heavy lifting, bending,
reaching, pushing, pulling or carrying . . . are frequently found to be consistent with an
RFC for a full range of light work”). Thus, Dr. Puri’s opinion that plaintiff should refrain
from lifting “heavy weights” and had “mild limitations to gripping” is substantial evidence
Vin support of the ALJ’s RFC determination that plaintiff can perform light work.
Further, although “the Second Circuit has held that, when compiling an RFC from
the record, an ALJ may not rely on opinions that employ the terms ‘moderate’ and ‘mild’
absent additional information,” Dr. Puri’s use of such terminology in the present matter
does not render the ALJ’s RFC determination erroneous. Craig R. v. Berryhill, No. 6:18
CV-0630 (LEK), 2019 WL 4415531, at *5 (N.D.N.Y. Sept. 16, 2019) (citing Curry v.
m| Apfel, 209. F.3d 117, 123 (2d Cir. 2000), superseded by requlation on other grounds by
20 C.F.R. § 404.1560(c)(2)); see also Garretto v. Colvin, No. 15-CV-8734 (HBP), 2017
WL 1131906, at *21 (S.D.N.Y. Mar. 27, 2017) (holding that the consulting physician's
“use of the word ‘moderate’ [wa]s vague and provide[d] no support for the ALJ’s
conclusion that [the] plaintiff [could] engage in [the relevant] activities for six hours out o
an eight hour day.”). “On the other hand,” this Court has explained that “use of terms
| like ‘mild’ and ‘moderate’ has been held to pass substantial evidence muster when
medical evidence shows relatively little physical impairment.” Anderson v. Colvin, No.
5:12-CV-1008 (GLS/ESH), 2013 WL 5939665, at *9 (N.D.N.Y. Nov. 5, 2013) (citing
Waldau v. Astrue, No. 5:11-CV-925 (GLS), 2012 WL 6681262, at *4 (N.D.N.Y. Dec.21,
2003)). For instance, in Waldau, the Court concluded that the consultative medical
examiner's opinion that the plaintiff had a “[m]ild to moderate limitation lifting, carrying,

14

and pulling” was not so vague as to render it useless for purposes of determining the
plaintiff's RFC because the consultative examiner’s “ultimate diagnosis [wa]s well
supported by his extensive examination,” including that the plaintiff “had full range of
motion in his shoulders, elbows, forearms, and fingers bilaterally,” and “a full range of
motion and 5/5 muscle strength in his left wrist but a limited range of motion and some
weakness in his right wrist.” Waldau, 2012 WL 6681262, at *4. “Thus,” the Court
concluded, the consultative medical examiner's opinion “[wa]s not in any way
conclusory.” Id.
Here, although Dr. Puri’s medical source statement used the term “mild” to
characterize plaintiff's gripping limitations without specifically defining that term, similar
to the consultative examiner in Waldau, Dr. Puri performed an extensive examination of
| plaintiff and rendered a non-conclusory opinion that was supported by detailed findings.
T. at 458; see Waldau, 2012 WL 6681262, at *4. Indeed, as in Waldau, Dr. Puri noted
that plaintiff had a full ROM in her shoulders, elbows, forearms, and wrists bilaterally;
5/5 strength in her upper and lower extremities; intact hand and finger dexterity, but
“some give-way” in her grip strength, which she opined was “4+/5.” T. at 457; see
Waldau, 2012 WL 6681262, at *4. Thus, Dr. Puri’s conclusion that plaintiff had “mild
| limitations to gripping” was no so vague as to be useless for determining plaintiff's RFC.
Id. at 458.
Further, the present matter is distinguishable from cases in which a medical
source that used the terms “mild” or “moderate” to describe a claimant’s physical
limitations has been held too vague to support an RFC determination in the absence of
additional information. Craig R., 2019 WL 4415531, at *5 (citing Curry, 209. F.3d at

15

123). For instance, in Provencher v. Comm’r of Soc. Sec., this Court remanded to the
ALJ for further administrative proceedings where the ALJ’s determination that the
plaintiff had the RFC to perform light work with certain limitations based on a
consultative medical examiner's medical source statement, which opined that the
plaintiff had “‘mild’ limitations in bending, stooping, and kneeling[] and . . . should not lift
o ‘heavy’ weights.” Provencher v. Comm’r of Soc. Sec., No. 6:15-CV-1287 (GTS), 2017
WL 56702, at *6 (N.D.N.Y. Jan. 5, 2017). However, in Provencher, the ALJ declined to
give weight to a treating physician’s medical source statement, which opined that the
plaintiff had more significant limitations than those stated by the consultative examiner
on the basis that “the [treating physician’s] opinion was at odds with objective evidence
and examination notes in the records.” Id. In concluding that the ALJ’s RFC
determination was not supported by substantial evidence, the Court observed that the
ALJ “failed to cite” any record evidence that contradicted the treating source’s opinion.
Id. at *5. Further, the Court noted that the consultative examiner’s opinion was
“somewhat vague” because of her use of the term “mild,” which was not defined and the
meaning of which was not evident from the examination report.” Id.
Here, although Dr. Puri did not explicitly define the terms “mild” in her medical
Source statement, “the meaning of the term was . . . evident from the examination
report.” Provencher, 2017 WL 56702, at *5. Indeed, Dr. Puri made clear that plaintiff's
grip strength was only slightly reduced from full (i.e. “some give-way”) by quantifying her
grip strength at “4+/5,” and noting that plaintiff had 5/5 strength in her upper extremities
with full ROM. T. at 457. Accordingly, the present matter is distinguishable from

16

Provencher and the ALJ’s reliance on Dr. Puri’s medical source statement in reaching
the RFC determination was appropriate. See Waldau, 2012 WL 6681262, at *4.
Moreover, this case is further distinguishable from cases like Provencher
because the ALJ’s RFC determination is adequately supported by an abundance of
medical evidence contained in the record, including medical treatment notes and
° diagnostic testing records—which the ALJ explicitly cited to in his RFC analysis—and
which establish “relatively little physical impairment.” Anderson, 2013 WL 5939665, at
*9; see T. at 38-40; cf. Provencher, 2017 WL 56702, at *5. For instance, the ALJ cited
medical records, which observe that plaintiff sought treatment as far back as 2012 for
hand pain, and underwent several surgeries including arthroplasty on her right and left
thumbs in 2012 and 2015, respectfully; bilateral wrist surgeries on her right and left
m} Wrists in 2012 and 2014, respectfully; and surgery to repair a boxer’s fracture in 2017
after plaintiff punched a wall and broke her right pinky finger. See T. at 363, 373, 375,
425, 472, 479. However, the ALJ also cited extensively to medical records
documenting plaintiff's subjective complaints of loss of grip strength and bilateral hand
pain that was unsubstantiated by clinical evaluations and diagnostic testing. See id. at
38-39. For instance, the ALJ cited to Dr. Llobet’s February 2, 2016 office visit note,
| Which explained that plaintiff “complain[ed] of bilateral hand pain” and “no strength in
hands, dropping objects in her hands.” Id. at 376. Dr. Llobet diagnosed plaintiff with
“[c]arpal tunnel syndrome, unspecified upper limb,” ordered x-rays of plaintiff's wrists,
and referred plaintiff for physical therapy. Id. at 378. Upon review of the x-rays, Dr.
Llobet noted “[n]Jo fracture or dislocation” in either wrist, and concluded that plaintiff had
“[mlild bilateral osteoarthritis.” Id. at 393. Further, the ALJ cited medical records

17

indicating that, despite complaints of pain, plaintiff did not seek treatment or failed to
follow through with recommended treatments, including a Margaretteville Hospital
Discharge Note from March 17, 2018, which stated that plaintiff was discharged from
physical therapy for failure to attend for over a month; that her last date of attendance
was February 18, 2016, when plaintiff informed her physical therapist after four
| treatment sessions that “she . . . did not think physical therapy was helping.” Id. at 378.
Plaintiff discontinued physical therapy despite “demonstrat[ing] good rehab potential.”
Id. at 399.
The ALJ also cited the plaintiff's treatment records from Dr. Huntsman at Bassett
Healthcare Network. See T. at 39. Dr. Huntsman’s April 13, 2016 progress note stated
plaintiff's subjective complaint of “continued pain in [her] left hand” and that the pain
Could be “reproduc[ed] with palmar supination and pronation of her wrist,” but noted that
the x-rays performed following her 2015 thumb surgery
show[ed] absolutely no real ulnar radial disease and she has
complete stability in radial ulnar joint. The source of the pain
is unclear based on her x-rays and interestingly enough . . .
any other range of motion has no symptoms whatsoever. At
this point, it is unclear the source of her pain based on the
normal x-rays.
Id. at 441. Further, Dr. Huntsman noted

The only other potential mild abnormality is little bit of a joint
collapse between the radioscaphoid joint, but yet, this joint
does not seem to have any tenderness and provocative
motions does not seem to aggravate it. Again, the only thing
that seems to cause trouble is pronation and supination,
which is not supported by her x-rays.
Id. Dr. Huntsman’s subsequent progress notes from May and December 2016, likewise
observe that a “[rjeview of [plaintiff's] x-rays is curious in that position and everything

18

seems good, but there looks like there is developing arthritis between the scaphoid and
trapezoid that may be some of her symptomology” and
X-rays show really no substantial abnormalities. MRI was
likewise unremarkable. She complains of pain at the base of
her metacarpal on the ulnar aspect of this. There is no
evidence on studies that would suggest any type of
progressive arthritic disease or any impingement. At this
point, | am not clear what to offer her because her pain is an
o anatomically challenging area where there are no particular
structures that | am clear on which would be causing her
symptoms.
Id. at 442, 630. The ALJ also observed that Dr. Huntsman administered a steroid
injection, which “provided some modest relief of [plaintiff's] symptoms.” Id. at 442, 611;
see id. at 38.
Further, the ALJ cited the treatment notes of Dr. Andrew Reis of Bassett
Healthcare Network, whom plaintiff saw in July and August 2016. See T. at 636, 642.
Dr. Reis noted that plaintiff's “situation [wa]s quite puzzling as she has pain bilaterally
which she states is nearly identical however only has x-ray findings for scapholunate
trapezoid arthritis on the right.” Id. at 642. Dr. Reis referred plaintiff for an MRI “of the
left to look for underlying scapholunate trapezoid arthritis which [wa]s not demonstrated
on her plain film.” Id. At plaintiff's follow up visit in August 2016, Dr. Reis noted,
| “[u]nfortunately, [plaintiff's MRI findings] show[ed] little to explain her ongoing bilateral
pain.” Id. at 636. In addition, Dr. Reis observed that plaintiff had “what appear[ed] to be
scapholunate trapezial arthritis on the contralateral [right] hand but this was not verified
by the MRI on the left hand” and he “I ha[d] little to offer her surgically given her lack of
response to the corticosteroid injection as well as a lack of findings on the MRI scan.”
Id.

19

Moreover, the ALJ cited Dr. Huntsman’s February 8, 2017 progress note, which
indicated that plaintiff expressed “continued pain of [her] left thumb and left wrist.” T. at
625. Dr. Huntsman noted that plaintiff “sa[id] she d[id] not have pain all of the time, but
rather when she makes certain movements” and “highlight[ed] that her pain [wa]s
heightened by doing dishes, lifting heavy items, and opening jars.” Id. She further
explained that she had “sharp pains but d[id] not experience prolonged soreness.” Id.
Dr. Huntsman reflected that plaintiff's “exam has continued to be a little bit difficult to
discern” because plaintiff had “good motion,” a “little bit of discomfort in most of the
positions of the hand” with “no tenderness [or] instability.” Id.
In addition, the ALJ cited plaintiff's March 23, 2017 progress note from plaintiff's
pain management specialist at Bassett Healthcare Network, Dr. Brian White. See T. at
38-39. Dr. White observed plaintiff's subjective complaints that, on a daily basis, her
“[p]ain ranges from a 2 to a 7/10 in intensity,” and is greater in her left hand than in her
right hand. Id. at611. Dr. White provided the following impression: “Grossly normal
strength throughout the bilateral upper extremities including grip strength, finger
abduction and thumb opposition. Wrist flexion and extension, elbow flexion and
extension, forearm pronation and shoulder abduction. There is some pain with resisted
m| pronation. This pain is present on the dorsal aspect of the wrist.” Id. at 614. Dr. White
also noted that plaintiff's August 2016 MRI showed some “increased fluids sensitive
signal’ in her left hand. Id. at611. Finally, the ALJ cited plaintiff's pre- and post-surger
June 7, 2017 medical records from Bassett Healthcare Network, which recounted that
plaintiff underwent open reduction and internal flexion (“ORIF”) with pinning of the fifth

20

metacarpal to repair a boxer’s fracture to her right hand after plaintiff punched a wall.
See T. 39, 469.
Thus, as the foregoing demonstrates, plaintiffs treatment notes established that
she had normal ROM in her wrists and normal grip strength. See T. at 614, 625.
Further, plaintiff's diagnostic tests, including x-ray and MRI studies, established that she
| suffered from mild arthritis and “carpal tunnel syndrome, unspecified upper limb,” but di
not indicate that she was limited in her ability to perform the requirements of light work
as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b). Id. at 378; see id. at 399. Thus,
the “medical evidence show[ed] relatively little physical impairment.” Anderson, 2013
WL 5939665, at *9. Accordingly, the Court concludes that the ALJ properly relied on Dr
Puri’s medical source statement, which was corroborated by the medical evidence of
record, and arrived at an RFC determination that was supported by substantial
evidence.

2. Weight Afforded PA Moore’s Opinion
Insofar as plaintiff's brief may be construed as arguing that the ALJ failed to
afford PA Moore’s opinion more weight, the Court concludes that the ALJ’s
| determination is supported by substantial evidence. For claims filed before March 27,
2017, such as in the present case, “medical opinions” are defined as “statements from
acceptable medical sources that reflect judgments about the nature and severity of [a
claimant's] impairment(s), including [his or her] symptoms, diagnosis, prognosis, what
[he or she] can still do despite impairment(s), and [his or her] physical or mental
restrictions.” 20 C.F.R. § 404.1527(a)(1) (emphasis added). “Acceptable medical

21

sources” include licensed physicians (medical or osteopathic doctors) psychologists,
optometrists, podiatrists, and speech-language pathologists. Id. § 404.1513(a)(1)-(5)
(effective Sept. 3, 2013 to Mar. 26, 2017). The regulations note that, “[i]n addition to
evidence from acceptable medical sources [the Commissioner] may also use evidence
from other sources to show the severity of [a claimant’s] impairment(s) and how it
°| affects [his or her] ability to work.” Id. § 404.1513(d) (emphasis added). “Other
sources” include “[m]Jedical sources not listed in paragraph (a) of . . . section” 404.1513,
such as PAs. Id. at § 404.1513(d)(1).
PA Moore opined that plaintiff was able “sit and stand/walk” for six hours in an
eight-hour workday. T. at 452. She further opined that plaintiff was able to “lift and
carry” 10 Ibs. or less “[o]ccasionally” but could “never” lift 20 Ibs. or 50 Ibs. “in a
| Competitive work situation.” Id. Moreover, PA Moore opined that, in an eight-hour
workday, plaintiff could “[g]rasp, [t]urn[, and] [t]wist [o]bjects” with her right and left hand
20% of the time; perform “[f]ine [mJanipulations” with both hands for 30% of the time;
and “reach,” “inc[luding o]verhead,” 100% of the time. Id. PA Moore concluded that
plaintiff's bilateral hand pain would “interfere with attention and concentration needed to
perform even simple tasks” and would preclude plaintiff from working as a nurse’s
m| assistant. Id. at 453.
The ALJ noted that PA “Moore [wa]s not an acceptable medical source,” but
considered her medical source statement and afforded her opinion “some weight”
because her conclusion that plaintiff could no longer work as a nurse’s assistant was
“consistent with the conclusions reached in [the ALJ’s] decision.” T. at 39. The Court
finds that the ALJ properly considered PA Moore’s opinion and afforded it the

22

appropriate amount of weight. As discussed in detail in subsection V.B.1., supra, the
ALJ properly declined to adopt the limitations set forth in PA Moore’s medical source
statement in reaching his RFC determination, such as the inability to lift 20 lbs. and the
significant limitations in grasping and fine manipulations, because those limitations were
“not supported by other objective medical evidence in the record” and contradicted by
other medical evidence of record. King v. Comm’r of Soc. Sec., 350 F. Supp. 3d 277,
284 (W.D.N.Y. 2018); see Harrison v. Colvin, No. 3:13-CV-835 (FJS/CFH), 2014 WL
4794406, at “15 (N.D.N.Y. Sept. 25, 2014) (holding that the ALJ properly considered th
opinion of a treating PA and declined to afford it controlling weight where the PA’s
opinion was “not supported by substantial evidence” and contradicted other medical
evidence of record.).
I
3. The ALJ’s Assessment of Plaintiff's Credibility
In addition, insofar as plaintiff's pro se brief may be read as arguing that the ALJ
improperly declined to credit her statements concerning the intensity, persistence, and
limiting effects of her hand and wrist disorders, the Court concludes that the ALJ applied
the appropriate legal standard and correctly concluded that statements in this regard
m| were “not substantiated or corroborated by the medical evidence of record.” T. at 37.
A plaintiff's allegations of pain and functional limitations are “‘entitled to great
weight where . . . it is supported by objective medical evidence.’” Rockwood v. Astrue,
614 F. Supp. 2d 252, 270 (N.D.N.Y.2009) (quoting Simmons v. U.S. R.R. Ret. Bd., 982
F.2d 49, 56 (2d Cir. 1992)). However, the ALJ “is not required to accept [a plaintiff's]
subjective complaints without question; he may exercise discretion in weighing the

23

credibility of the [plaintiff's] testimony in light of the other evidence in the record.” Genie
v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (internal quotation marks and citation omitted).
“When rejecting subjective complaints, an ALJ must do so explicitly and with sufficient
specificity to enable the Court to decide whether there are legitimate reasons for the
ALJ’s disbelief.” Rockwood, 614 F. Supp. 2d at 270 (internal quotation marks and
°| citation omitted).
“The ALJ’s credibility assessment must be based on a two[-]step analysis of
pertinent evidence in the record. First, the ALJ must determine whether the claimant
has medically determinable impairments, ‘which could reasonably be expected to
produce the pain or other symptoms alleged.” Rockwood, 614 F. Supp. 2d at 270-71
(quoting 20 C.F.R. § 404.1529(a)); accord 20 C.F.R. § 416.929(a)).
Second, if medically determinable impairments are shown,
then the ALJ must evaluate the intensity, persistence, and
limiting effects of the symptoms to determine the extent to
which they limit the claimant's capacity to work. Because an
individual's symptoms can sometimes suggest a greater
level of severity of impairment than can be shown by the
objective medical evidence alone, an ALJ will consider the
following factors in assessing a claimant's credibility: (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.
Id. at 271 (internal quotation marks and citations omitted); see 20 C.F.R. §§
404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii). Further, “[iJt is the role of the
Commissioner, not the reviewing court, ‘to resolve evidentiary conflicts and to appraise
the credibility of witnesses,’ including with respect to the severity of a claimant's

24

symptoms.” Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir.2013) (summary order)
(quoting Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)).
Here, the ALJ determined that plaintiff's medically determinable impairments
could reasonably be expected to cause the alleged symptoms, but concluded that her
statements concerning the intensity, persistence, and limiting effects of those symptoms
were not fully credible because “they [we]re . . . not substantiated or corroborated by the
medical evidence of record.” T. at 37. The ALJ observed plaintiff's hearing testimony in
which she stated that she experienced pain in both hands, but that she “take[s] . . .
nothing for pain” and that her last treatment for hand pain was in July 2017 when she
was unable to receive another steroid injection because of the fracture she sustained
punching a wall. T. at 72; see id. at 70. Further, the ALJ observed that plaintiff testified
| that “[t]he ache is always there. That’s not the problem. | can deal with that. It’s when |
start using my hand, turning my wrist, trying to lift anything or hold on to anything that
the pain it'll have sharp pains.” Id. at 77. The ALJ noted that plaintiff's activities of daily
living consisted of cleaning her trailer home, including sweeping and doing dishes, but
not vacuuming because that “tends to hurt [her] hands,” id. at 75, and that she testified
that she can dress herself, except that she avoids buttons and zippers, cooks, walks he
and watches television. See id. at 76-77. In addition, plaintiff testified that, due to
her bilateral hand pain, she has “kind of adjusted the way [she] do[es] things.” Id. at 80.
Here, the ALJ thoroughly discussed plaintiff's subjective complaints, including he
hearing testimony that she did not use pain medication or attend treatment, considered
her activities of daily living, and properly concluded that her subjective complaints were
not supported by the record. See T. at 37-39. For example, plaintiff's statements

25

regarding her limitations with lifting were not supported by her ability to clean, care for
herself and walk her dog. See Cichocki v. Astrue, 729 F.3d 172, 178 (2d Cir. 2013)
(finding the ALJ properly relied on plaintiffs activities of daily living, including the ability
to walk dogs and clean her home, were consistent with an RFC to perform light work).
In addition, as discussed in detail in subsection V.B.1, supra, the ALJ correctly
determined that plaintiff's subjective complaints were not supported by the medical
evidence of record. Accordingly, the ALJ’s credibility determination was supported by
substantial evidence.

4. Plaintiff's New Evidence®
Contrary to plaintiffs contention, the newly submitted evidence does not “alter[]
m| the weight of the evidence before the ALJ” such that remand is required to determine a
new RFC. Canady, 2017 WL 5496071, at *11; see Patterson, 24 F. Supp. 3d at 373.
As new evidence, plaintiff submitted two follow-up notes from her 2015 left thumb
arthroplasty surgery authored by Dr. Arliss, her hand surgeon. See T. 14-18. In his first
note from January 29, 2015, 10 days after surgery, Dr. Arliss observed that plaintiff
“present[ed] with left wrist pain which is gradually decreasing.” Id. at 14. Dr. Alriss
performed a physical exam and noted that plaintiff's “[I]eft wrist [was] normal to
inspection and palpation with the exception of a nicely healed intact 5cm wound at the
dorsal base of the left thumb and wrist,” and that plaintiff was able to “move the thumb
MP and IP joints well’ and had “full ROM” in her left wrist.” Id. at 15. In addition, Dr.

8 The Commissioner correctly argues that various documents plaintiff submitted to the AC are not new,
as they were included in the record before the ALJ. See Dkt. No. 14 at 16-17. However, given the scope
of review of, as explained in subsection V.A., supra, the Court concludes that the fact that some of
plaintiffs purportedly new evidence was previously considered is of no moment for the present analysis.
26

Arliss observed that plaintiff had 5/5 strength in her left extensors, flexors, and forearm
pronators and supinators, and tested “negative for the Carpal tunnel bilaterally.” Id.
Moreover, plaintiff submitted Dr. Arliss’ note from her March 12, 2015 follow-up
appointment seven weeks after surgery in which Dr. Arliss observed that plaintiff
“complain[ed] of pain . . . but [wa]s off narcotic medication” but was taking “quite a bit of
| Motrin,” and was “not working but [wa]s busy at home helping care for a grandchild.” Id.
at 17. Upon physical exam, Dr. Arliss found that plaintiff's left wrist was “stiff insofar
wrist movement as well as thumb,” but noted that plaintiff's “ROM [was] physiologic” an
that plaintiff's “hands [were] normal to inspection and palpation” with “[s]trength 5/5
bilaterally” and “physiologic” ROM.” Id. at 18. Dr. Arliss also observed that plaintiff's
“[flingers [w]ere normal to inspection and palpation” with “[f]ull ROM” except the
Stiffness in her left thumb. Id.
Further, plaintiff submitted Dr. Llobert’s June 22, 2017 medical source statement,
which states that plaintiff has pain in both hands “due to arthritis” which causes her
hands to “shake” and “tremble.” T. at 84. Dr. Llobet opined that plaintiff was able to
stand or walk for eight hours of an eight-hour workday and sit for four. See id. at 85. In
response to the questionnaire’s inquiry as to “[hJow many pounds can your patient lift
carry in a competitive work situation?” Dr. Llobert circled the marks for indicating
“Injever” for at least 10 Ibs., 20 Ibs., and 50 Ibs. Id. at 85.2 Moreover, Dr. Llobet
indicated that plaintiff did not “have significant limitations with reaching, handling or
fingering.” Id. In addition, Dr. Llobet opined that, in an eight-hour workday, plaintiff

The Court notes that, because Dr. Llobet circled numerous options instead of checking the spaces
designated on the form, it is uncertain whether he also meant to circle the mark for selecting “never” with
respect to plaintiff's ability to lift “[]Jess than 10 Ibs.” T. at 85.
27

could “[g]rasp, [t]urn[, and] [t]wist [o]bjects” with her right and left hand 10% of the time;
perform “[fline [mJanipulations” with both hands for 80% of the time; and “reach,”
“inc[luding o]verhead,” 100% of the time. Id. Dr. Llobet also opined that plaintiff would
“frequently” experience pain or other symptoms severe enough to interfere with the
attention and concentration necessary to do simple tasks, and selected options to
| indicate that plaintiff would be absent from work “[a]bout two days per month” and
“[a]bout three days per month.” Id. at 86.
Plaintiff's newly submitted evidence also includes follow-up progress notes from
Bassett Healthcare Network. Her June 12, 2017 progress note, authored five days after
her surgery to repair the boxer’s fracture she sustained after she punched a wall,
provides, as relevant here, plaintiff's “x-rays . . . show healing of her fracture,” “hand is
Neurovascularly intact,” and that “[s]he has some arthritis in her hand, but her fingers
are very stiff.” Id. Her June 21, 2017 progress note also indicates that plaintiff's
“splint was removed and x-rays were taken that show healing of her fracture. The
patient’s hand is neurovascularly intact. She has some arthritis in her hand, but her
fingers are very stiff.” Id. Moreover, her June 11, 2018 progress note, authored by Dr.
Reis, states that, along with her bilateral hand pain, plaintiff had a “new complaint” of
| ‘tightness in her volar forearm.” Id. at 60. Dr. Reis noted that, although plaintiff had not
had any “diagnostic testing,” she “certainly could be developing some carpal tunnel
syndrome which could explain some of her issues.” Id. Dr. Reis concluded that he
“ha[d] nothing to offer [plaintiff] for her hand pain” and that he believed “EMGs [should
be] ordered prior to any further treatment options.” Id.

28

Finally, plaintiff submitted Dr. Lazaro’s December 10, 2018 report containing the
results electrodiagnostic imaging of plaintiff's “sensory and motor symptoms in the
hands and wrists.” T. at 20. Dr. Lazaro’s report states that plaintiff had “no radicular
symptoms,” and provided the following “[s]ummary of [flindings: [b]ilaterally normal
median, ulnar[,] and radial nerve conduction studies, proximally and distally.” Id. at 21.
°/ In addition, Dr. Lazaro stated that plaintiff's “symptoms (aches, pain[,] and local
tenderness) are generated primarily from tendons and ligaments”; [t]here are no clinical
signs of cervical radiculopathy or plexopathy.” Id.
First, contrary to plaintiffs contention, even considering Dr. Llobet’s medical
source statement, substantial evidence still supports the ALJ’s RFC determination. See
Dkt. No. 12 at 4-5. Dr. Llobet’s opinion that plaintiff's arthritis causes her hands to
m| “shake” and “tremble” is uncorroborated by any other medical evidence of record. T. at
84. Similarly, Dr. Llobet’s opinion that plaintiff has significant limitations in her ability to
grasp and twist objects with her hands, and that she is unable to lift any amount of
weight, is contrary to the weight of the evidence and unsupported by any other medical
evidence of record which established that plaintiff had at least 4+/5 or 5/5—nearly full
grip strength—and full ROM bilaterally. See id. at 85.'° Further, Dr. Llobet’s opinion
| that plaintiff's bilateral wrist and hand pain would interfere with her concentration and

1° To the extent that Dr. Llobet’s belated medical source statement is unsupported by and/or inconsistent
with the record evidence, including his own clinical findings, the Court concludes that, insofar as plaintiff's
pro se pleading may be read as arguing that Dr. Llobet’s opinion is entitled to controlling weight pursuant
to the treating physician rule, that argument lacks force. See 20 C.F.R. § 404.1527(c)(2); id. §
416.927(c)(2); see also Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) (stating that the “treating
physician rule . .. mandates that the medical opinion of a claimant’s treating physician is given controlling
weight if it is well supported by medical findings and not inconsistent with other substantial record
evidence.”); Jill D. v. Berryhill, 5:17-CV-1308 (CFH), 2019 WL 936523, at *3 (N.D.N.Y. Feb. 26, 2019)
(“[The treating physician] rule applies equally to retrospective opinions given by treating physicians.”)
(internal quotation marks and citation omitted)).
29

attention and cause her to be absent from work two or three days per month is not
contradicted by plaintiff's hearing testimony in which she explicitly stated that she did
not need to take medication for pain and was not attending therapy or seeking treatmen
for her pain; and inconsistent with her activities of daily living, including her ability to
care for her grandchild, walk her dog, and cook and clean in her home. See id. at 84-
85. Moreover, Dr. Arliss’ 2015 progress notes and the progress notes relating to her
June 2017 boxer’s fracture surgery are consistent with the ALJ’s analysis of plaintiff's
medical records used in reaching the RFC determination, including that plaintiff has 5/5
bilateral hand and wrist strength, full ROM, and showed signs of carpal tunnel syndrom
and arthritis. See id. at 14-18, 37-39, 60. Asa final matter, Dr. Lazaro’s December
2018 findings relating to plaintiff's electrodiagnostic testing, which show normal nerve
Conduction studies and posit that plaintiff's pain is generated from tendons and
ligaments is of no moment, as it does not call into question the degree of disability
caused by plaintiff's pain and, therefore, does not impact the ALJ’s RFC determination.
In any event, as the AC observed, Dr. Lazaro’s report discussed his findings that were
obtained outside of the relevant time period for plaintiff's disability application and,
therefore, does not have any effect on the ALJ’s determination. See T. at 2. Thus,
| because the ALJ’s RFC determination was supported by substantial evidence, and
plaintiff has failed to establish a “reasonable possibility that the new evidence would
have influenced the [ALJ] to decide claimant’s application differently,” the ALJ’s
determination is affirmed. Patterson, 24 F. Supp. 3d at 373 (internal quotation marks
and citation omitted)).

30

VI. Conclusion
WHEREFORE, for the reasons stated above, it is hereby:
ORDERED, that the Commissioner’s decision is AFFIRMED; and it is further
ORDERED, that plaintiff's motion (Dkt. No. 12) is DENIED and it is further
ORDERED, that the Commissioner's motion (Dkt. No. 14) is GRANTED; and it is
| further
ORDERED, that the Clerk of the Court serve copies of this Memorandum-
Decision and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: August 5, 2020
Albany, New York

Uriel berm)
Christian F. Hummel
U.S. Magistrate Judge

31

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313100. Public record. Not legal advice.