Schillo v. Saul

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

___________________________________________

BRENDA LYNN S.,

Plaintiff,

v. 5:19-cv-0999 (TWD)

COMM’R OF SOCIAL SEC.,

Defendant.

____________________________________

APPERANCES: OF COUNSEL:

LAW OFFICES OF KENNETH HILLER, PLLC JUSTIN M. GOLDSTEIN, ESQ.

Counsel for Plaintiff KENNETH R. HILLER, ESQ.

6000 N. Bailey Ave., Suite 1A

Amherst, NY 14226

U.S. SOCIAL SECURITY ADMIN. SEAN SANTEN, ESQ.

Counsel for Defendant

J.F.K. Federal Building, Room 625

15 New Sudbury St.

Boston, MA 02203

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

MEMORANDUM- DECISION AND ORDER

Currently before the Court, in this Social Security action filed by Brenda S. (“Plaintiff”)

against the Commissioner of Social Security (“Defendant” or “Commissioner”) pursuant to 42

U.S.C. § 405(g), are Plaintiff’s motion for judgment on the pleadings and Defendant’s motion for

judgment on the pleadings. (Dkt. Nos. 13 and 14.) For the reasons set forth below, Plaintiff’s

motion for judgment on the pleadings is denied and Defendant’s motion for judgment on the

pleadings is granted. The Commissioner’s decision denying Plaintiff’s disability benefits is

affirmed, and Plaintiff’s Complaint is dismissed.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff was born on September 29, 1972. (Administrative Transcript1 at 26.) She has a

high school degree, attended vocational school for computer systems operations, and obtained a

real estate license in 2005 which has since expired. T. at 75-76. She has previously worked as a

service repair coordinator, office assistant, self-service administrator, customer service

representative, data analyst, accounts payable clerk, and project manager. T. at 75-85. She has

not worked since May of 2016. T. at 86. Plaintiff alleges disability due to cerebral palsy,

fibromyalgia, benign tremors, and osteoarthritis. T. at 226.

On May 19, 2016, Plaintiff protectively filed a Title II application for disability insurance

benefits and supplemental social security income alleging disability as of May 17, 2016. T. at

191. The claim was initially denied on August 1, 2016. T. at 117. Plaintiff timely requested a

hearing before an Administrative Law Judge (“ALJ”). T. at 123. Plaintiff subsequently

appeared at an administrative hearing through video teleconferencing before ALJ Melissa

Hammock on April 11, 2018. T. at 70-106. Vocational expert Rachel Duchon also testified. T.

at 100-106.

On May 25, 2018, the ALJ issued a written decision finding Plaintiff was not disabled.

T. at 37-48. Plaintiff sought review of the ALJ’s decision to the Appeals Council. However, on

January 15, 2019, the Appeals Council denied her request for review, making the ALJ’s decision

the final decision of the Commissioner. T. at 1-4. On August 12, 2019, Plaintiff filed a

complaint in this Court seeking judicial review of the Commissioner’s final decision after

obtaining an extension of time to do so. (Dkt. No. 1.) Pursuant to General Order 18, each party

1 The Administrative Transcript is found at Dkt. No. 9. Citations to the Administrative

Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein

will be used rather than the page numbers the Court’s CM/ECF electronic filing system assigns.

submitted supporting briefs which this Court treats as competing motions for judgment on the

pleadings. (Dkt. Nos. 13, 14.)

II. RELEVANT LEGAL STANDARDS

A. 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 supports the decision.

Featherly v. Astrue, 793 F. Supp. 2d 627, 630 (W.D.N.Y. 2011) (citations omitted); Rosado v.

Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985

(2d Cir. 1987)). A reviewing court may not affirm the ALJ’s decision if it reasonably doubts

whether the proper legal standards were applied, even if the decision appears to be supported by

substantial evidence. Johnson, 817 F.2d at 986.

A court’s factual review of the Commissioner’s final decision is limited to the

determination of whether there is substantial evidence in the record to support the decision. 42

U.S.C. § 405(g) (2015); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). To facilitate the

Court’s review, an ALJ must set forth the crucial factors justifying her findings with sufficient

specificity to allow a court to determine whether substantial evidence supports the decision.

Roat v. Barnhart, 717 F. Supp. 2d 241, 248 (N.D.N.Y. 2010); Ferraris v. Heckler, 728 F.2d 582,

587 (2d Cir. 1984). “Substantial evidence has been defined as ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’” Williams ex rel. Williams v.

Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be “more than a mere

scintilla” of evidence scattered throughout the administrative record. Featherly, 793 F. Supp. 2d

at 630; Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,

305 U.S. 197, 229 (1938)).

“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, 859 F.2d at 258 (citations omitted). Where substantial evidence

supports the ALJ’s findings they must be sustained “even where substantial evidence may

support the plaintiff’s positions and despite that the court’s independent analysis of the evidence

may differ from the [ALJ’s].” Rosado, 805 F. Supp. at 153. In other words, a reviewing court

cannot substitute its interpretation of the administrative record for that of the Commissioner if

the record contains substantial support for the ALJ’s decision. Rutherford v. Schweiker, 685

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

B. Standard for Benefits2

To be considered disabled, a plaintiff-claimant seeking benefits must establish that he or

she 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) (2015). In addition, the plaintiff-claimant’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.

2 The requirements for establishing disability under Title XVI, 42 U.S.C. § 1382c(a)(3) and Title

II, 42 U.S.C. § 423(d), are identical, so that “decisions under these sections are cited

interchangeably.” Donato v. Sec’y of Health and Human Servs., 721 F.2d 414, 418 n.3 (2d Cir.

1983) (citation omitted).

Id. § 1382c(a)(3)(B).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a)), the Social

Security Administration (“SSA”) promulgated regulations establishing a five-step sequential

evaluation process to determine disability. 20 C.F.R. § 416.920(a)(4) (2015). Under that five-

step sequential evaluation process, the decision-maker determines:

(1) whether the claimant is currently engaged in substantial gainful

activity; (2) whether the claimant has a severe impairment or

combination of impairments; (3) whether the impairment meets or

equals the severity of the specified impairments in the Listing of

Impairments; (4) based on a “residual functional capacity”

assessment, whether the claimant can perform any of his or her

past relevant work despite the impairment; and (5) whether there

are significant numbers of jobs in the national economy that the

claimant can perform given the claimant’s residual functional

capacity, age, education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). “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).

C. Standards for ALJ Evaluation of Opinion Evidence

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

carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL 374183, at

*2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues are not “medical

issues,” but are “administrative findings.” The responsibility for determining these issues

belongs to the Commissioner. See SSR 96-5p, 1996 WL 374183, at *2. These issues include

whether the plaintiff’s impairments meet or equal a listed impairment; the plaintiff’s Residual

Functional Capacity (“RFC”); how the vocational factors apply; and whether the plaintiff is

“disabled” under the Act. Id.

In evaluating medical opinions on issues 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 being applied and the weight being accorded to 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)).

D. Standards for ALJ Evaluation of Symptoms

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

plaintiff’s reports of pain and other symptoms into account. Genier v. Astrue, 606 F.3d 46, 49

(2d Cir. 2010). The ALJ must carefully consider “all the evidence presented by claimants

regarding their symptoms, which fall into seven relevant factors including ‘daily activities’ and

the ‘location, duration, frequency, and intensity of [their] pain or other symptoms.’” Del Carmen

Fernandez v. Berryhill, No. 18-CV-326, 2019 WL 667743, at *9 (S.D.N.Y. Feb. 19, 2019)

(citing 20 C.F.R. § 404.1529(c)(3); Social Security Ruling (SSR) 16-3p, Titles II and XVI:

Evaluation of Symptoms in Disability Claims, 81 FR 14166-01 at 14169-70, 2016 WL 1020935

(Mar. 16, 2016)).

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

regulatory policy” because the regulations themselves do not use the term. SSR 16-3p, 81 FR at

14167. Instead, symptom evaluation tracks the language of the regulations.3 The evaluation of

symptoms involves a two-step process. First, the ALJ must determine, based upon the objective

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

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

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

Court will remain consistent with the terms as used by the Commissioner.

medical evidence, whether the medical impairments “could reasonably be expected to produce

the pain or other symptoms alleged . . . .” 20 C.F.R. §§ 404.1529(a), (b); 416.929(a), (b).

If so, at the second step, the ALJ must consider “‘the extent to which [the claimant’s]

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

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

[the claimant’s] symptoms affect [her] ability to work.’” Barry v. Colvin, 606 F. App’x 621, 623

(2d Cir. 2015) (citing inter alia 20 C.F.R. § 404.1529(a); Genier v. Astrue, 606 F.3d at 49)

(alterations in original).4

If the objective medical evidence does not substantiate the claimant’s symptoms, the ALJ

must consider the other evidence. Cichocki v. Astrue, 534 F. App’x 71, 76 (2d Cir. 2013) (citing

superseded SSR 96-7p). The ALJ must assess the claimant’s subjective complaints by

considering the record in light of the following symptom-related factors: (1) claimant’s daily

activities; (2) location, duration, frequency, and intensity of claimant’s symptoms; (3)

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

medication taken to relieve symptoms; (5) other treatment received to relieve symptoms; (6)

any measures taken by the claimant to relieve symptoms; and (7) any other factors concerning

claimant’s functional limitations and restrictions due to symptoms. 20 C.F.R. §§ 404.1529(c)(3),

416.929(c)(3).

The ALJ must provide specific reasons for the determination. Cichocki, 534 F. App’x at

76. However, the failure to specifically reference a specific relevant factor does not undermine

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

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

2016 ruling has removed the emphasis on “credibility.”

the ALJ’s assessment if there is substantial evidence supporting the determination. Id. See also

Del Carmen Fernandez v. Berryhill, 2019 WL 667743 at *11 (citing Rousey v. Comm’r of Soc.

Sec., 285 F. Supp. 3d 723, 744 (S.D.N.Y. 2018)). “[R]emand is not required where ‘the evidence

of record allows the court to glean the rationale of an ALJ’s decision.’” Cichocki, 534 F. App’x

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

III. THE ALJ’S DECISION

The ALJ’s decision followed the Social Security Administration’s (“SSA”) five-step

sequential evaluation process for determining whether an adult is disabled. See 20 C.F.R. §

416.920(a). After finding Plaintiff met the insured status requirements through December 31,

2020, the ALJ found Plaintiff has not engaged in substantial gainful activity since her alleged

onset date of May 17, 2016. T. at 39. At step two, ALJ found Plaintiff’s fibromyalgia, Charcot-

Marie-Tooth disease, essential tremor, and osteoarthritis to be severe impairments. Id. At step

three, the ALJ determined Plaintiff’s impairments did not meet or medically equal the criteria of

any listed impairments in 20 C.F.R. 404, Subpart P, App. 1. T at. 40-41. Then the ALJ found,

based on the above-stated impairmen§ts, Plaintiff had the residual functional capacity (“RFC”) to

. . . lift, carry, push, or pull 20 pounds occasionally and 10 pounds

frequently, sit for six hours, and stand and/or walk for six hours in

an eight-hour day. She can frequently balance and stoop;

occasionally kneel, crouch, climb ramps, climb stairs, and operate

foot controls; and never crawl, or climb ladders, ropes, or

scaffolds. The claimant can have no exposure to vibrations or

workplace hazards, including unprotected heights and moving

mechanical parts. She can frequently handle, finger, and feel with

her non-dominant left hand.

T. at 41.

In making her RFC determination, the ALJ considered medical records and opinion

evidence in accordance with 20 C.F.R. 404.1529, SSR 16-3p, and 20 C.F.R. 404.1527. Id. As

relevant here, the ALJ considered the opinions of Plaintiff’s treating physicians Michael

Picciano, M.D. (“Dr. Picciano”), and Hassan Shukri, M.D. (“Dr. Shukri”), and consultative

examiner Kalyani Ganesh, M.D. (“Dr. Ganesh”). T. at 44-46.

Given Plaintiff’s RFC, the ALJ concluded she was not disabled because there were

significant numbers of jobs in the national economy she could perform. T. at 47. Specifically,

the ALJ noted the vocational expert testified someone of Plaintiff’s “age, education, work

experience, and residual functional capacity” could perform past relevant work as a project

manager, and relevant work as a callout operator or surveillance system monitor. Id. The ALJ

concluded Plaintiff has not been under a disability, as defined in the Social Security Act, since

May 17, 2016, the date the alleged disability began. T. at 48.

IV. RELEVANT MEDICAL RECORDS AND OPINION EVIDENCE

A. Hassan Shukri, M.D.

Plaintiff underwent an initial neurological evaluation with treating nurse practitioner

(“NP”) Rose Soto on April 1, 2016. T. at 282. The treatment note was countersigned by Dr.

Shukri. Id. Her primary complaints were body soreness due to fibromyalgia and worsening

tremors affecting both hands. Id. Plaintiff had a normal gait and full strength in the upper and

lower extremities, although benign bilateral hand tremors were observed. T. at 283. Plaintiff

was fully awake, alert, and well orientated, and her coordination was normal. Id. Plaintiff

demonstrated mild cogwheel rigidity in her left elbow, dystonic movement in her neck while

turning her head, and moderately decreased sensation to vibration in her feet. Id. NP Soto

ordered an MRI of the brain and cervical spine and an EMG/nerve conduction study of the upper

and lower extremities. T. at 284. These studies were normal except for a small herniation

without impingement or stenosis at the C5-C6 level in Plaintiff’s neck. T. at 285-287. NP Soto

and Dr. Shukri concluded most of Plaintiff’s symptoms were probably from a cerebral palsy

which affected her left arm and leg. T. at 285. It was noted this will get worse with age and it

will be difficult for Plaintiff to do any job. Id. Plaintiff was encouraged to do aqua therapy, her

medications were increased, and a follow up appointment was made. Id.

In August 2016, Plaintiff followed up with NP Soto. T. at 347. Plaintiff again exhibited

full strength in her upper and lower extremities, and she had a normal gait and no difficulties

with heel, toe, and tandem walking. T. at 346-47. A bilateral hand tremor was present with the

left tremor greater than the right. Id. NP Soto and Dr. Shukri referred Plaintiff for a second

opinion regarding the tremors. Id.

In October 2016, Plaintiff followed up again with Dr. Shukri. T. at 348. He found

Plaintiff had mild increased tone in bilateral lower extremities with left more than right. T. at

349. He noted there was no incoordination, and sensation was normal to pinprick, vibration, and

cortical modality. Id. He stated Plaintiff had a spastic gait, no neck or spinal tenderness was

present, and her cervical range of motion was full. Id. Dr. Shukri concluded Plaintiff was

permanently totally disabled as of May 16, 2016, and noted she was scheduled for a second

opinion at Strong Memorial Hospital regarding her tremors. Id.

In February 2017, Plaintiff again treated with Dr. Shukri. T. at 351. He noted she had

been diagnosed with Charcot-Marie-Tooth disease and essential tremor. Id. On exam, her motor

and tone were normal in all four extremities. T. at 352. She had no tremor or involuntary

movement, her muscles had good consistency in all four limbs, there was no generalized atrophy

or fasciculation, and strength was normal in all four limbs. Id. Her gait was normal, and she had

no difficulty with toe, heel, or tandem walking. Id. Dr. Shukri noted Plaintiff was doing fairly

well with the medication propranolol. Id. He concluded Plaintiff was permanently and totally

disabled since May 16, 2016. T. at 351.

In May 2017, Plaintiff treated with Dr. Shukri at the request of her attorney after being

denied for long term disability. T. at 354. Dr. Shukri concluded Plaintiff has several chronic

neurological diseases, each of which could be enough to give her disability. T. at 356. On exam,

Plaintiff exhibited a positional tremor, left more than right, and she had spasticity in both lower

extremities, left more than right. T. at 355. He concluded her familial tremor would make it

impossible for her to do any fine hand movement. Id. In August 2017, Plaintiff saw Dr. Shukri

again and he noted no major change in symptoms. T. at 357. In January 2018, Dr. Shukri noted

Plaintiff had mild weakness in the left extremities, but no incoordination on heel-to-shin or

finger-to-nose maneuvers. T. at 359. She exhibited no neck or spinal tenderness and her neck

range of motion was full. Id. Dr. Shukri encouraged Plaintiff to continue conservative treatment

of medication and home exercise. Id.

B. Arthritis Health Associates

On March 14, 2016, Plaintiff was evaluated by Linda Warnowicz, M.D., of Arthritis

Health Associates for generalized body pains. T. at 294. She exhibited fifteen out of eighteen

fibromyalgia tender points, but all joints were found non-tender and non-swollen. T. at 296-297.

Plaintiff experienced general morning stiffness which resulted in loss of appetite, fatigue,

headaches, and dry mouth. T. at 294. Plaintiff’s pain severity level was a one out of ten. Id.

Concerned that she may have an underlying neurologic disorder, Dr. Warnowicz suggested

Plaintiff have a neurology evaluation and continue her current medications. T. at 297.

On May 20, 2016, Plaintiff followed up with Dr. Warnowicz. T. at 288. At that time,

she displayed twelve out of eighteen fibromyalgia tender points with a pain severity level of four

out of ten. T. at 288-291. Her joints were again found to be non-tender and non-swollen. T. at

289. Dr. Warnowicz recommended continued medication and continued treatment with Dr.

Shukri for hand tremors. Id.

From September 2016, to January 2018, plaintiff routinely sought care from various

providers at Arthritis Health Associates for similar generalized body pains. T. at 383-404.

Lumbar and sacroiliac joint x-rays in September of 2016 were unremarkable. T. at 405-406. In

November 2016, Plaintiff’s musculoskeletal exam was normal without any tenderness or

limitation on range of motion in her shoulders, elbows, hands, and knees. T. at 396-97. Plaintiff

was encouraged to stretch and swim. T. at 397. In March and July of 2017, exams of Plaintiff’s

extremities and joints were normal, although she did exhibit a tremor. T. at 388, 392. In January

2018, Plaintiff exhibited bilateral elbow pain on exam, but her range of motion was normal in

both arms. T. at 384. All of her joints, except for her elbows, were found to be non-tender and

non-swollen. Id. Her recent laboratory blood testing was generally normal. T. at 383.

Physician Assistant (“PA”) Lynne McIlvain recommended Plaintiff continue stretching, icing,

and using tennis elbow straps. T. at 385.

C. Upstate Comprehensive Pain Medicine

Plaintiff also received pain related treatment at Upstate Comprehensive Pain Medicine

during the relevant time period. In September of 2017, Plaintiff’s musculoskeletal exam

revealed tenderness in all joints, but she had full and equal strength in both lower extremities and

she sat without discomfort. T. at 369. Reflexes and sensation in both lower extremities were

normal. Id. The exam was unchanged in November of 2017. T. at 426. In July of 2018,

Plaintiff exhibited tenderness in her back, but her exam was normal. T. at 28.

D. University of Rochester Movement Disorder Clinic

In November of 2016, Plaintiff was evaluated at the University of Rochester Movement

Disorder Clinic for her hand tremor. T. at 479-481. On exam, Plaintiff’s muscle tone and bulk

were normal in all extremities. T. at 480. She had full strength in all extremities and good range

of motion, although she exhibited a hand tremor, more on the left than on the right. Id. Her

finger coordination testing was normal; and her gait was stable with normal base, stride length,

and arm swing. Id. She was diagnosed with an essential tremor and medication was

recommended. Id.

E. CNY Family Care/Michael Picciano, M.D.

Plaintiff received primary care for a variety of health reasons from various providers at

CNY Family Care including Dr. Picciano. In December of 2015, she complained of body aches.

T. at 325. On exam, she exhibited fibromyalgia trigger points in her upper back; and she had

tenderness in her mid-paravertebral muscles. T. at 326. PA Ruth McDonald ordered blood work

and medications while noting a possible diagnosis of fibromyalgia. T. at 327. In February of

2016, PA McDonald noted tenderness on exam along the costal area of Plaintiff’s rib cage, but

no other significant findings. T. at 322. In April of 2016, NP Kristen Mullally noted multiple

tender points in Plaintiff’s neck, low back, hips, knees, and wrists upon palpation, but Plaintiff

had full range of motion. T. at 313.

In January of 2017, Plaintiff complained of pain in her back, knees, and joints. T. at 474.

Her exam was normal, however, Dr. Picciano assessed her with fibromyalgia and essential

tremor. T. at 474-75. In May of 2017, PA McDonald noted a mild tremor, but the exam was

otherwise unremarkable. T. at 460. PA McDonald also treated Plaintiff for a painful right

middle finger in October of 2017, but an x-ray was normal. T. at 433-35. In December of 2017,

NP Rachael Cavelli treated Plaintiff for left ankle pain. T. at 421. On exam, Plaintiff had a

normal gait, and full range of motion of both ankles, but her left foot was tender. T. at 422. The

exam was otherwise benign, and an x-ray of the left ankle was normal. T. at 420, 422.

On February 13, 2018, Dr. Picciano examined Plaintiff for her chronic pain and to

complete disability paperwork. T. at 410. For the objective exam, Dr. Picciano noted only that

Plaintiff appeared well, and that she was fully alert and oriented and had no signs of acute

distress. T. at 411. Dr. Picciano completed a source statement that day opining Plaintiff’s

symptoms were severe enough to interfere with her attention and concentration for more than 30-

percent of an eight-hour workday, and she could only walk one block without severe pain. T.

407-409. He indicated Plaintiff could sit, stand, or walk for less than two-hours each day; she

needed to take a 5-minute break to walk around every 10 minutes and take a 10 minute break

every hour to lie down; she could occasionally lift less than 10 pounds; she could never look

down and rarely stoop or climb stairs; and she could never twist, crouch or climb ladders. Id.

Additionally, Dr. Picciano opined Plaintiff could only perform gross hand manipulation for 20

percent of the day, fine manipulation for 10 percent of the day, and reaching for 10 percent of the

day with her right hand. Id. He stated Plaintiff could never perform any of these activities with

her left hand. Id. He concluded Plaintiff has been unable to work since May 2016. T. at 410.

F. Kalyani Ganesh, M.D.

In July 22, 2016, Plaintiff underwent a consultative examination with Kalyani Ganesh,

M.D. T. at 339. Dr. Ganesh noted plaintiff appeared to be in no acute distress. T. at 341. Her

gait and stance were normal. Id. She could walk on heels and toes with no difficulty. Id. She

needed no help changing for the exam or getting on and off exam table. Id. Her musculoskeletal

exam was normal with full range of motion in her spine and extremities, and her joints were non-

tender and non-swollen. T. at 342. Regarding her fibromyalgia symptoms, she exhibited tender

points bilaterally in her trapezius and second ribs, and one control point on her mid-forehead. Id.

Her hand and finger dexterity were intact, and no tremors were noted. Id. Her handwriting was

legible, clear, and inconsistent with any tremors, and her grip strength was full and equal

bilaterally. Id. Dr. Ganesh concluded Plaintiffs overall movements were very brisk and she had

no noted difficulties. Id.

V. THE PARTIES’ CONTENTIONS

Plaintiff’s primary argument is the ALJ erred in declining to give controlling weight to

the opinions of the treating physicians and adopting her own subjective medical opinion when

determining Plaintiff’s RFC. (Dkt. No. 13.) Specifically, Plaintiff argues the ALJ did not

identify any inconsistencies between the opinions of the treating physicians and the medical

evidence. (Id. at 13.) Defendant, on the other hand, asserts substantial evidence supports both

the ALJ’s decision when weighing the opinion evidence and in evaluating Plaintiff’s subjective

symptoms. (Dkt. No. 14.)

VI. ANALYSIS

A. Opinion Evidence and the RFC Determination

A claimant’s RFC reflects what he or she “can still do despite his or her limitations.”

Desmond v. Astrue, No. 11-CV-0818 (VEB), 2012 WL 6648625, at *5 (N.D.N.Y. Dec. 20, 2012)

(quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). To determine a claimant’s RFC, “the

ALJ considers a claimant’s physical abilities, mental abilities, symptomatology, including pain

and other limitations that could interfere with work activities on a regular and continuing basis.”

Id. (citing 20 C.F.R. § 404.1545(a)); see also 20 C.F.R. § 416.945(a). The ALJ assesses RFC

“based on all of the relevant medical and other evidence.” 20 C.F.R. § 416.945(a)(3). The RFC

assessment does not have to “perfectly correspond” with any of the medical source opinions cited

in the ALJ’s decision; rather, the ALJ is “entitled to weigh all of the evidence available to make

an RFC finding that [i]s consistent with the record as a whole.” Matta v. Astrue, 508 F. App’x 53,

56 (2d Cir. 2013) (citation omitted) (summary order). The Court upholds an RFC finding “when

there is substantial evidence in the record to support each requirement listed in the regulations.”

Desmond, 2012 WL 6648625, at *5 (citation omitted).

In terms of weighing opinion evidence, the Second Circuit has long recognized the

“treating physician rule” set out in 20 C.F.R. § 416.927(c). “Thus, the opinion of a claimant’s

treating physician as to the nature and severity of the impairment is given ‘controlling weight’ so

long as it is ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with the other substantial evidence in the case record.’” Greek v. Colvin,

802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)).

However, there are situations where the treating physician’s opinion is not entitled to controlling

weight, in which case “the ALJ must explicitly consider, inter alia: (1) the frequen[c]y, length,

nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the

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

a specialist.” Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)).

After considering these factors, “the ALJ must ‘comprehensively set forth [his] reasons for the

weight assigned to a treating physician’s opinion.’” Greek, 802 F.3d at 375 (quoting Burgess, 537

F.3d at 129). “The failure to provide ‘good reasons’ for not crediting the opinion of a claimant’s

treating physician is a ground for remand.” Id. (quoting Burgess, 537 F.3d at 129-30). However,

“[w]here an ALJ’s reasoning and adherence to the Regulations is clear, []he is not required to

explicitly go through each and every factor of the Regulation.” Blinkovitch v. Comm’r of Soc.

Sec., No. 3:15-CV-1196 (GTS/WBC), 2017 WL 782979, at *4 (N.D.N.Y. Jan. 23, 2017) (citing

Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013)), report-recommendation adopted by 2017

WL 782901 (N.D.N.Y. Feb. 28, 2017).

In assessing a plaintiff’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 of a State agency medical consultant constitutes

expert opinion evidence which can be given weight if supported by medical evidence in the

record.”); Little v. Colvin, 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).

The factors for considering opinions from non-treating medical sources are the same as

those for assessing treating sources, with the consideration of whether the source examined the

claimant replacing the consideration of the treatment relationship between the source and the

claimant. See 20 C.F.R. § 416.927(c)(1)-(6).

B. The ALJ’s Determination

In the RFC, the ALJ limited Plaintiff to light exertional work except she cannot crawl or

climb ladders, ropes, or scaffolds. T. at 44. Additionally, Plaintiff cannot be exposed to

workplace hazards such as unprotected heights, moving mechanical parts, or sudden vibrations.

Id. In reaching the RFC determination, the ALJ assigned partial weight to the opinions of both

treating physicians, Dr. Shukri and Dr. Picciano, because they significantly deviated from the

objective evidence. T. at 44-45. Both opinions suggested it would be impossible for her to do

any fine hand manipulations which was inconsistent with the objective medical findings and her

own reported activities. Id. The ALJ specifically noted the medical records which show

Plaintiff had mild right-sided tremors, which was her dominant hand, and mild to moderate left-

sided tremors which did not suggest a total inability to engage in fine manipulation. Id.; see also

T. at 283, 342, 346-47, 474-75, 480. However, she reported she could drive, dress herself, bath

herself, prepare meals, do chores, and use a cell phone (T. at 234-238) which are all activities

requiring fine manipulation. T. at 45. The ALJ also noted undefined and conclusory terms were

used giving little utility for calculating Plaintiff’s RFC. T. at 44.

The ALJ gave little weight to consultative examiner Dr. Ganesh’s opinion because the

longitudinal evidence indicated some functional limitations were needed. T. at 45-46. The ALJ

gave more weight to the treating physicians’ opinions although they overstated the limitations,

because they “were more consistent with a preponderance of the evidence than no limitations at

all.” T. at 46.

The ALJ determined the RFC was supported by the findings of generally full motor

strength in Plaintiff’s extremities and intermittent findings of lumbar or cervical pain. Id. The

widespread body pain and her neuropathic symptoms supported the exertional, postural,

manipulative, and environmental limitations in the RFC. Id. The ALJ also found the Plaintiff’s

reported activities and her mild to moderate hand tremor diagnosis supported the manipulative

and exertional limitations in the RFC. Id.

C. Substantial Evidence Supports the ALJ’s Analysis of the Record Evidence

and Plaintiff’s RFC

A claimant’s RFC is the most he can do despite his limitations. 20 C.F.R. §

404.1545(a)(1). “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.”

Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (citing Melville v. Apfel, 198 F.3d

45 52 (2d Cir. 1999)). “In making a residual functional capacity 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.” Id.

(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, No. 11-CV-0927 (ESH), 2012 WL 7784156, at *3 (N.D.N.Y. Dec. 11,

2012) (quoting SSR 85-15, 1985 WL 56857, at *8). 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).

1. Opinion of Dr. Shukri

Plaintiff argues the ALJ substituted her judgment for medical opinions on Plaintiff’s

ability to work consistently. (Dkt. No. 13 at 12.) In doing so, Plaintiff argues the ALJ deviated

from the treating physician rule and did not consider all the required factors for evaluating

medical opinions.5 Id. The Court concludes otherwise.

The Second Circuit has held “[w]here an ALJ’s reasoning and adherence to the

Regulations is clear, she is not required to explicitly go through each and every factor of the

Regulation.” Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013). Here, the ALJ meaningfully

addressed most of the factors set forth in 20 C.F.R. 404.1529(c)(3). The ALJ discussed

Plaintiff’s daily activities such as driving a vehicle, §traveling alone, preparing meals, using

5 Plaintiff later argues these same factors were not considered when the ALJ evaluated

Plaintiff’s subjective symptoms. The Court finds this argument unpersuasive for similar reasons

as set forth below.

technology, shopping, taking care of her dog, and performing household chores. T. at 40, 45; see

also T. at 95-98, 235-36. She discussed the location, duration, frequency, and intensity of

Plaintiff’s symptoms. T. at 42-45. She also reviewed Plaintiff’s medications, response, and

reported side effects of the medication, and she noted the physicians’ titles and specialties. Id. It

is clear after a review of the record evidence that the relevant factors were considered and did not

need to be explicitly recited.

Plaintiff also argues the ALJ vaguely rejected Dr. Shukri’s opinion and did not have any

opinion evidence to support her key findings in determining Plaintiff’s RFC. (Dkt. No. 13 at 18.)

The Court, however, concludes substantial evidence supports the RFC.

First, the ALJ’s decision indicates a thorough review of the record with analysis

supported by the evidence. T. at 44-46. For example, the ALJ explains at various times how she

determined the suggested hand manipulation limitations found by Dr. Shukri to be inconsistent

with the medical evidence and other evidence of record. T. at 45, 46. Specifically, the ALJ

indicated the record failed to support the conclusion of fine hand manipulation being impossible,

with a diagnosis of only a mild tremor in the dominant right hand and a mild to moderate tremor

in the left hand. Id.; see also T. at 283, 342, 346-47, 474-75, 480; 20 C.F.R. §§

404.1527(3)(4), 404.1529(c)(4); Ladd v. Comm'r of Soc. Sec., No. 5:13–CV–0236, 2014 WL

2779167, at *2 (N.D.N.Y. June 19, 2014) (finding that the ALJ did not err by requiring objective

evidence of the claimant’s fibromyalgia, but, rather, properly discounted the treating physician’s

opinion as to the claimant’s impaired mobility because it was inconsistent with her own

treatment notes).

Further, the ALJ indicated Plaintiff engaged in multiple activities which require fine hand

manipulations. T. at 45, 46. Activities include driving a vehicle, dressing, bathing, preparing

meals, doing chores, and using a cellphone, all of which is inconsistent with the conclusion of

fine hand manipulation being impossible. Id.; see Rusin v. Berryhill, 726 F. App'x 837, 839 (2d

Cir. 2018) (The ALJ did not err in declining to afford treating physician’s opinion controlling

weight because his opinion was inconsistent with his treatment notes and diagnostic

observations, the other medical opinion evidence, and reported activities of daily living.)

(emphasis added).

Finally, Plaintiff argues the ALJ is duty-bound to obtain clarification and additional

information from treating physicians when insufficiencies are found in the record. (Dkt. No. 13

at 18.) The Court likewise finds this argument unpersuasive.

Where there are gaps in the record the court has remanded for further development of the

evidence. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996). “Remand is particularly appropriate

where . . . we are ‘unable to fathom the ALJ’s rationale in relation to the evidence in the record’

without ‘further findings or clearer explanation for the decision.’” Id. (citing Berry v.

Schweiker, 675 F.2d 464, 469 (2d Cir. 1982). In other words, an ALJ is only required to pursue

further record development when the evidence is inadequate for the Commissioner to determine

whether an individual is disabled. See Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999).

That is not the case here. The ALJ possessed a complete administrative record with no gaps in

medical history and treatment. See generally T. at 281-493. The medical evidence includes

records from Plaintiff’s treating neurologist spanning the years 2016 through 2018 (T. at 281-

287, 345-363); records from her treating primary care providers from 2011 through 2018 (301-

338, 407-493); records from her treating arthritis specialists for 2016 through 2018 (T. at 288-

300, 383-406); and records from the pain clinic where she sought treatment in 2017 and 2018 (T.

at 27-29, 364-382). Because the ALJ relied on Plaintiff’s extensive medical records and other

evidence of record, it was not necessary for the ALJ to seek additional medical information

regarding Plaintiff’s RFC. See Rosa, 168 F.3d at 79 n.5. Where there are no obvious gaps in the

administrative record, and where the ALJ already possesses a complete medical history, the ALJ

is under no obligation to seek additional information in advance of rejecting a benefits claim.

See Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996). In this case, the ALJ had extensive evidence

depicting Plaintiff’s physical functioning. The ALJ correctly relied on this evidence in

determining Plaintiff could perform less than the full range of light work.

2. Opinion of Dr. Picciano

Plaintiff argues the ALJ’s conclusory paragraph fails to identify any actual

inconsistencies between Dr. Picciano’s opinion of limitations and the medical treatment records

and fails to properly address the Burgess factors. (Dkt. No. 13 at 12.) For the following reasons,

the Court again disagrees.

As explained above, when examined by her neurologist and others, Plaintiff consistently

displayed mild tremor symptoms in her dominant hand, and mild to moderate symptoms in her

non-dominant hand. T. at 283, 342, 346-48, 352, 385, 460, 480. Upper extremity exams showed

full strength bilaterally, good muscle consistency, and non-tender and non-swollen joints. T. at

296-97, 342, 346-47, 352, 369, 388, 392, 397-98, 480. These mild symptoms do not support the

conclusion that Plaintiff could use her left arm zero percent of the day and use her right arm for

only ten to twenty percent of the day as opined by Dr. Picciano. T. at 409. Plaintiff also

displayed full or only slightly decreased motor functions in her upper and lower extremities; she

generally had a normal gait; and she had intermittent findings of neck and back pain, but her

range of motion was good. T. at 45, 283, 342, 346-47, 352, 369, 388, 396-97, 422, 426, 480.

These findings conflict with Dr. Picciano’s opinion that Plaintiff could never look down and

could only rarely stoop or climb stairs. T. at 409. Further, Dr. Picciano’s opinions are not

supported by the evidence of Plaintiff’s daily activities, which include driving a vehicle,

dressing, bathing, preparing meals, doing chores, taking care of her dog, and using a cellphone.

T. at 45, 95-98, 234-238. Plaintiff’s function report wherein she indicates she can reach and use

her hands, although it was difficult “sometimes,” provides support that she can using her left arm

more than zero percent and her right arm more than ten to twenty percent. T. at 238.

The ALJ also relied on unmarkable brain and spine MRIs and EMG/nerve studies as

evidence to support the RFC. T. at 42, 285-287. The ALJ explained that Plaintiff’s medical

examinations showed only slightly reduced motor strength and only intermittent findings of pain

in her cervical spine. T. at 44, 283, 342, 349, 359. The ALJ cited to specific record evidence

documenting mild to moderate tremors but minimal mild functional impairments attendant to

those tremors. T. at 43. For example, Plaintiff had minimal impairment in drawing and writing

(T. at 480); intact hand and finger dexterity (T. at 342); and grip strength 5/5 bilaterally. Id.

The ALJ also relies on the consultative report of Dr. Ganesh. T. at 45. Dr. Ganesh

concluded Plaintiff’s overall movements were brisk and no physical difficulties were found. T.

at 342. Although the ALJ did not give Dr. Ganesh’s opinion significant weight, Dr. Ganesh’s

findings on exam do not support the extreme limitations opined by Dr. Picciano and Dr. Shukri.

T. at 45, 341-42. See, e.g., Gladle v. Astrue, No. 7:05-CV-797 (NAM/GJD), 2008 WL 4411655,

at *5 (N.D.N.Y. Sept. 23, 2008) (finding ALJ properly discounted opinion of treating physician

where it was inconsistent with treatment records and objective findings of consultative

examiner); Harrington v. Colvin, No. 14-CV-6044P, 2015 WL 790756 at *16 (W.D.N.Y. Feb.

25, 2015) (ALJ properly discounted treating physician opinion where it assessed limitations that

were inconsistent with findings contained in the treatment records and with admissions claimant

had made concerning his activities of daily living).

In summary, a “searching review of the record” assures the Court “that the substance of

the treating physician rule was not traversed.” Estrella, 925 F. 3d at 96. The ALJ’s decision

demonstrates adequate consideration of the regulatory factors in weighing the opinions of record

and affording some weight to Plaintiff’s treating providers’ opinions. See 20 C.F.R. §

404.1527(c)(2).

D. Substantial Evidence Supports the ALJ’s Evaluation of Plaintiff’s Subjective

Symptom Description

Plaintiff argues the ALJ failed to evaluate Plaintiff’s subjective statements pursuant to

procedures set out in 20 C.F.R. 404.1529 regarding Plaintiff’s subjective symptom allegations.

(Dkt. No. 13 at 23.) Specifically§, Plaintiff asserts the ALJ did not provide a rationale for

discounting the allegations made. For the reasons that follow, the Court finds this argument

unpersuasive.

Similar to the above reasoning, the ALJ found Plaintiff’s allegations of debilitating pain

inconsistent with examination findings and reported symptoms. T. at 44-46. The ALJ points to

examinations which show slightly reduced motor strength and only intermittent findings of pain

in her cervical spine. T. at 44, 283, 342, 349, 359. Additionally, as noted above, the ALJ cited

evidence documenting mild to moderate tremors but minimal to mild functional impairments

associated with those tremors. T. at 43, 296-97, 342, 346-47, 352, 369, 388, 392, 396-97, 480.

For example, Dr. Ruth Schneider at the Movement Disorder Clinic noted mild to moderate

tremors but with minimal impairment in drawing and writing. T. at 480. Dr. Ganesh found

Plaintiff had intact hand and finger dexterity, and noted Plaintiff’s handwriting was legible, clear,

and inconsistent with tremors. T. at 342. Plaintiff’s grip strength was equal and full bilaterally.

Id. Dr. Schukri noted Plaintiff’s motor strength was normal in all extremities; and she had a

normal gait, and only mild loss of sensation to vibration of feet. T. at 469.

The ALJ also found Plaintiff’s reported activities to be inconsistent with the alleged

manipulative limitations. T. at 40. Although the ALJ acknowledged Plaintiff’s difficulties with

zippers and buttons on clothes, the ALJ found the allegations inconsistent with the rest of her

reported abilities to vacuum, dust, wash dishes, shop for groceries, use a cellphone, and exhibit

legible handwriting. T. at 95-98, 235-237, 340, 480. See Donnelly v. Barnhart, 105 F. App’x

306, 308 (2d Cir. 2004) (ALJ properly discounted Plaintiff’s reported symptoms based on

statements that claimant performed a variety of daily activities including cooking dinner, folding

clothes, and sewing). The ALJ reasonably concluded Plaintiff’s allegations of limitations were

inconsistent with the evidence presented.

It is the province of the ALJ to resolve genuine conflicts in the record. Veino v.

Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). However, the Commissioner need not “reconcile

explicitly every shred of medical testimony.” Galiotti v. Astrue, 266 F. App’x 66, 66 (2d Cir.

2008) (citing Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)). Here, the ALJ

appropriately evaluated the Plaintiff’s report of symptoms and the conflicting medical evidence,

and made an RFC finding consistent with the overall record. See Matta v. Astrue, 508 F. App’x

53, 56 (2d Cir. 2013) (although ALJ’s conclusion did not perfectly correspond with any of the

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

RFC finding consistent with the record as a whole).

Considering the ALJ’s detailed analysis of Plaintiff’s medical history, the relevant

medical opinions, Plaintiff’s testimony, and her activities of daily living, this Court concludes the

RFC determination was supported by substantial evidence. The ALJ then relied upon this RFC

determination in her questioning of the VE, and in her ultimate determination that Plaintiff could

perform her prior employment, and other jobs available in significant numbers in the national

economy. Therefore, these findings are also supported by substantial evidence. Calabrese v.

Astrue, 358 F. App’x 274, 276 (2d Cir. 2009) (holding ALJ may rely on a VE’s testimony

regarding the availability of work if the hypothetical facts the expert is asked to consider are

based on substantial evidence and accurately reflect Plaintiffs limitations).

Vil. CONCLUSION

For the reasons stated above, the Court finds the ALJ’s determination of Plaintiff’ s RFC,

the weighing of medical opinions, and the assessment of Plaintiff's subjective symptoms is

appropriate. The ALJ’s conclusions are supported by substantial evidence and the correct legal

standards were applied. Remand is therefore not required on these bases.

ACCORDINGLY, it is hereby

ORDERED that Plaintiffs motion for judgment on the pleadings (Dkt. No. 13) is

DENIED; and it is further

ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 14) is

GRANTED; and it is further

ORDERED that Defendant’s decision denying Plaintiff disability benefits is

AFFIRMED, and it is further

ORDERED that Plaintiffs Complaint is DISMISSED.

Dated: September 29, 2020

Syracuse, New York

=x

United States Magistrate Judge

26