Pinto v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DONALD P.,

Plaintiff,

v. 6:20-CV-00216 (NAM)

“| COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES:

Steven R. Dolson, Esq.

Law Offices of Steven R. Dolson

N. Salina Street, Suite 3B

Syracuse, NY 13202

Counsel for Plaintiff

Christopher L. Potter, Esq.

Social Security Administration

J.F.K. Federal Building, Room 625

15 New Sudbury Street

Boston, MA 02203

Counsel for Defendant

Hon. Norman A. Mordue, Senior United States District Court Judge:

MEMORANDUM-DECISION AND ORDER

41. INTRODUCTION

Plaintiff Donald P. filed this action under 42 U.S.C. § 405(g), challenging the denial of

his application for Social Security Disability (“SSD”) insurance benefits. (Dkt. No. 1). The

parties’ briefs are presently before the Court. (Dkt. Nos. 7, 9). After carefully reviewing the

administrative record, (Dkt. No. 6), the Court affirms the denial decision.

Il. BACKGROUND

A. Procedural History

Plaintiff applied for disability benefits in December 2016, alleging that he had been

disabled since May 8, 2015. (R. 132). Plaintiff claims he is disabled due to psoriatic arthritis,

anxiety disorder, and depression. (R. 146). The Social Security Administration (“SSA”)

denied Plaintiffs application on April 3, 2017. (R. 65-69). Plaintiff appealed that

determination and requested a hearing before an Administrative Law Judge (“ALJ”). (R. 75).

The hearing was held on November 29, 2018 before ALJ Monica D. Jackson; Plaintiff

appeared and testified, as did a vocational expert. (R. 30-53). On February 19, 2019, the ALJ

issued a decision finding that Plaintiff was not disabled. (R. 12-29). Plaintiffs request for

review by the Appeals Council was denied on January 8, 2020. (R. 1-6). Plaintiff then

| commenced this action on February 27, 2020. (Dkt. No. 1).

B. Plaintiff’s Background and Testimony

Plaintiff was born in 1966. (R. 168). He graduated with a bachelor’s degree in

accounting in 1988. (R. 35, 147). Plaintiff reported that he worked as a budget analyst and

financial services manager from 1998 to 2015. (R. 147). Plaintiff testified that he left that job

because he was “laid off.” (R. 36).

Plaintiff stated that his medical conditions cause “chronic pain” that prevents him from

working in a similar position today. (R. 36). He stated that his pain prevents him from being

able to think and learn. (R. 36). He described the pain as a “constant ache,” and noted that he

feels pain in his head, neck, back, shoulder, fingers, and toes. (R. 162). He stated that his pain

has been constant since 1999, and that it never goes away and is aggravated by lifting and

sleeping. (R. 162). Plaintiff reported that if he had a similar job now, he would be “coasting

through it instead of being engaged like I used to be,” because “[t]he pain [has] pretty much

dominated my whole life.” (R. 36). Plaintiff explained that he suffers from “chronic daily

headache every day,” “neckache,” and “backache,” and described himself as “‘a totally different

person now that I used to be when I started out working.” (R. 37). He reported that he suffers

from pain every day, but his medications help to control the swelling related to his arthritis and

4! psoriasis. (R. 38). He stated that he “was unable to walk before starting his rheumatoid

medication.” (R. 38-39). Plaintiff stated that he could stand or walk for roughly 20 minutes

before needing to stop, sit for about an hour without getting up, lift or carry about 20 pounds.

(R. 39-40). He reported no trouble using his hands, but described them as “stiff,” and stated

that he has trouble stooping, kneeling, crouching, and crawling. (R. 40).

Plaintiff also reported that he has suffered anxiety and depression since 1999, which

.| caused panic attacks where his “head and neck would tighten,” and he had “major problems

concentrating.” (R. 163).

With regard to daily activities, Plaintiff stated that he spends most of his time watching

television, browsing the internet, and taking naps. (R. 40, 154). He reported that he “used to

be able to play golf frequently and walk 18 holes.” (R. 155). Plaintiff reported that he is able

to go outside frequently, to go out to dinner several times a month, and shop once a week for

about an hour. (R. 157-58).

C. Medical Evidence of Disability!

Plaintiff's disability claim stems from complaints of psoriatic arthritis, anxiety, and

depression. (R. 146). Plaintiff also asserts that he has fibromyalgia, Bell’s palsy, cervical and

lumbar degenerative disc disease, and headaches. (R. 17, 196). Plaintiff claims that he has

' Plaintiff only challenges the ALJ’s conclusions as to his physical impairments. (See generally Dkt. No.

9). Therefore, the Court will not discuss the medical evidence related to Plaintiff's mental impairments.

struggled with these conditions since 1999 and has received treatment from a number of

medical providers.

1. Dr. Ute Dreiner, Treating Rheumatologist

Plaintiff was treated by Dr. Ute Dreiner for his chronic pain from March 2011 through

at least August 2018. (See generally R. 204-365, 570-618, 638-40). Dr. Dreiner saw Plaintiff

4! regularly, with visits every three to four months. (R. 638). Throughout that treatment period,

Plaintiff reported that for many years he suffered from generalized pain throughout his body.

(See, e.g., R. 204, 210, 224, 362, 584, 605, 616). Plaintiff reported that the severity of his pain

varied from between zero and ten on a ten-point “pain scale.” (See, e.g., R. 205, 222, 242, 254,

263, 579, 585, 599). Plaintiff described having “good days and bad days.” (See, e.g., R. 448,

521, 530, 608). Dr. Dreiner diagnosed Plaintiff with psoriatic arthropathy, psoriasis, and

»| fibromyalgia. (See, e.g., R. 205, 231, 275, 586, 600). Dr. Dreiner treated Plaintiffs pain

symptoms with medications including Humira, Enbrel, Methotrexate, Prednisone and

Gabapentin. (See generally R. 38-39, 255, 580, 590, 600, 610). Dr. Dreiner’s treatment

records also show that Plaintiff reported varying and inconsistent episodes of stiffness, joint

pain/swelling, and nerve sensitivity. (See e.g., R. 42-43, 213, 216, 363, 376, 584, 591, 608).

In October 2018, Dr. Dreiner completed a residual functional capacity questionnaire,

which describes Plaintiff's general conditions as “chronic” with “no substantive improvement

anticipated.” (R. 638). She noted that “emotional factors contribute to the severity” of

Plaintiff's symptoms, and she assessed that his impairments were “reasonably consistent with

[his] symptoms and functional limitations.” (R. 638). Dr. Dreiner assessed that his conditions

would be severe enough to interfere with his attention and concentration for more than 30

percent of the workday. (R. 638). She further assessed that Plaintiff could only walk one city

block without rest, stand for no more than 30 minutes, and could only sit for two hours at a

time. (R. 639). She opined that Plaintiff would need periods of walking throughout the day, he

could only stand/walk for about two hours in a day, and he could sit for about four hours in a

workday. (R. 639). She assessed that Plaintiff suffered from “significant limitations with

reaching, handling, or fingering,” and noted that he could rarely lift and carry 20 pounds. (R.

41639). She reported that his conditions would require unscheduled breaks and could cause him

to be absent from work more than four days per month. (R. 639-40). Dr. Dreiner opined that

Plaintiff's conditions produce “good days and bad days,” and that he would be incapable of

sustaining full-time work. (R. 640).

2. Dr. Elke Lorensen, Consultative Physical Examiner

In February 2017, Plaintiff presented to Dr. Elke Lorensen for a consultative physical

»|examination. (R. 451-62). Plaintiff reported that his primary complaints were psoriatic

arthritis, fibromyalgia, chronic muscle pain, and chronic tension headache. (R. 459). Plaintiff

reported chronic pain all over his body, and noted that nerve block procedures in his neck were

ineffective. (R. 459). Plaintiff reported to Dr. Lorensen that he shops once per week, showers

and dresses daily, and spends most of his time watching television, listening to the radio, and

socializing. (R. 460). He stated that his girlfriend does the cooking, cleaning, and laundry.

460). He reported that his medical conditions “began in 1999 when he suddenly felt the

onset of a headache and then the pain spread through his body.” (R. 459). Dr. Lorensen noted

that he was treating his conditions with medications including Enbrel, Celexa, Klonopin, and

Neurontin. (R. 460).

Dr. Lorensen observed that Plaintiff did not appear to be in acute distress, had normal

gait, could walk on his heels and toes without difficulty, had a normal stance, could perform a

full squat, could rise from a chair without difficulty, and needed no help changing for the exam

or getting on and off the exam table. (R. 460). She noted that Plaintiff's straight leg raise was

negative bilaterally, that he had full flexion in his lumbar spine, and that he had full rotary

movement bilaterally. (R. 461). She observed that Plaintiff had some decreased neck

mobility. (R. 461). She noted that Plaintiffs joints were “stable and nontender,” but she

identified “12 positive trigger points” for fibromyalgia. (R. 461). She found that he had full

range of motion in his shoulders, elbows, forearms, wrists, and ankles. (R. 461). Dr. Lorensen

noted that Plaintiff had no sensory deficits, full strength in his upper and lower extremities, and

intact hand and finger dexterity with full grip strength. (R. 461-62).

Dr. Lorensen described Plaintiff’s prognosis as “stable,” and provided the following

medical source statement:

There are no gross limitations [to] sitting, standing, walking, or

handling small objects with the hands. There are moderate

limitations for turning the head.

(R. 462).

3. Dr. Seok, State Agency Consultant

In December 2016, State agency consultant Dr. I. Seok reviewed Plaintiff's initial

application for disability benefits. (R. 54-69). Dr. Seok did not examine Plaintiff, but based

z| his evaluation on the medical evidence of record, including the consultative examinations and

treatment notes from Dr. Dreiner, Rome Medical Group, and New Hartford Psychiatric

Services. (R. 55-57, 69). Dr. Seok determined that Plaintiff's medically determinable

impairments included inflammatory arthritis, fibromyalgia, anxiety, and depression. (R. 58).

Dr. Seok found that Plaintiffs conditions would cause physical limitations, including an

inability to lift or carry over 20 pounds, an inability to stand and walk for more than 6 hours in

a workday, and an inability to sit for more than 6 hours in a workday. (R. 60). Dr. Seok

assessed that Plaintiff had no postural or manipulative limitations. (R. 61). Dr. Seok

concluded that Plaintiff was not disabled and could perform light work. (R. 62).

D. ALJ’s Decision Denying Benefits

On February 19, 2019, the ALJ issued a decision denying Plaintiff’s application for

disability benefits. (R. 15-25). At step one of the five-step evaluation process, the ALJ

determined that Plaintiff had “not engaged in any substantial gainful activity since May 8,

2015, the alleged onset date.” (R. 17).

At step two, the ALJ found that, under 20 C.F.R. § 404.1520(c), Plaintiff had four

“severe” impairments: psoriatic arthritis, fibromyalgia, cervical and lumbar degenerative disc

disease, and headaches. (R. 17).

At step three, the ALJ found that, while severe, Plaintiff did not have an impairment or

combination of impairments that met the criteria for one of the impairments listed in 20 C.F.R.

Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (R. 20).

Before proceeding to step four, the ALJ assessed Plaintiffs residual functional capacity

(“RFC”), finding that:

[Plaintiff] has the [RFC] to perform light work as defined in 20 CFR

404.1567(b) except he can stand and walk four hours in an eight-

hour workday. He would need an option to alternate to sitting for

30 minutes after every 30 minutes standing or walking. He can

remain on-task while sitting. He can occasionally balance, stoop,

kneel, crouch, crawl, and climb ramps and stairs. He can never

climb ropes, ladders, or scaffolds. The claimant can frequently

reach with both upper extremities. He can never be exposed to

heights or moving mechanical parts. He can have occasional

exposure to extreme heat, extreme cold, wetness, and humidity. He

can tolerate a moderate noise intensity level as defined in the

Dictionary of Occupational Titles/Selected Characteristics of

Occupations. He can tolerate occasional exposure to light brighter

than that typically found in an indoor work environment such as an

office or retail store.

(R. 20). The ALJ’s decision explains that she reached this RFC determination based primarily

on Plaintiffs testimony and the opinions of Drs. Seok and Lorensen. (See R. 21-24).

At step four, relying on the testimony from the vocational expert, the ALJ determined

that Plaintiff was able to perform past relevant work because the demands of his past relevant

work “does not require the performance of work-related activities precluded by [the] residual

functional capacity.” (R. 24).

At step five, based on the foregoing, the ALJ concluded that Plaintiff “has not been

under a disability . . . through the date of this decision” under Section 216(i) and 223(d) of the

Social Security Act. (R. 24).

I. DISCUSSION

A. Disability Standard

To be considered disabled, a claimant must establish that he is “unable to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or which has lasted or can be expected to

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

addition, the claimant’s impairment(s) 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... .” 42

U.S.C. § 1382c(a)(3)(B).

The SSA uses a five-step process to evaluate disability claims:

First, the [Commissioner] considers whether the claimant is

currently engaged in substantial gainful activity. If he is not, the

[Commissioner] next considers whether the claimant has a “severe

impairment” which significantly limits his physical or mental ability

to do basic work activities. If the claimant suffers such an

impairment, the third inquiry is whether, based solely on medical

evidence, the claimant has an impairment which meets or equals the

criteria of an impairment listed in Appendix 1 of the regulations. If

the claimant has such an impairment, the [Commissioner] will

consider him [per se] disabled .... Assuming the claimant does not

have a listed impairment, the fourth inquiry is whether, despite the

claimant’s severe impairment, he has the residual functional

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

A to perform his past work, the [Commissioner] then determines

whether there is other work which the claimant can perform.

Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d

145, 151 (2d Cir. 2012)); see also 20 C.F.R. § 404.1520. The Regulations define residual

functional capacity as “the most [a claimant] can still do despite [their] limitations.” 20 C.F.R.

§ 404.1545. In assessing the RFC of a claimant with multiple impairments, the SSA considers

all “medically determinable impairments,” including impairments that are not severe. Id. §

404.1545(a)(2). The claimant bears the burden of establishing disability at the first four steps;

the Commissioner bears the burden at the last. Selian, 708 F.3d at 418.

B. Standard of Review

In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court

does not determine de novo whether Plaintiff is disabled. Rather, the Court must review the

administrative record to determine whether “there is substantial evidence, considering the

record as a whole, to support the Commissioner’s decision and if the correct legal standards

have been applied.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009).

When evaluating the Commissioner’s decision, “the reviewing court is required to

examine the entire record, including contradictory evidence and evidence from which

conflicting inferences can be drawn.” Selian, 708 F.3d at 417 (quoting Mongeur v. Heckler,

722 F.2d 1033, 1038 (2d Cir. 1983)). The Court may set aside the final decision of the

Commissioner only if it is not supported by substantial evidence or if it is based upon a legal

error. 42 U.S.C. § 405(g); Selian, 708 F.3d at 417; Talavera, 697 F.3d at 151. “Substantial

evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Brault v. Soc. Sec. Admin., Comm’r, 683

F.3d 443, 447-48 (2d Cir. 2012) (quoting Moran, 569 F.3d at 112). The substantial evidence

A! standard is “very deferential,” and the Court may only reject the facts found by the ALJ “if a

reasonable factfinder would have to conclude otherwise.” Id. at 448 (quoting Warren v.

Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)).

Consequently, “[e]ven where the administrative record may also adequately support

contrary findings on particular issues, the ALJ’s factual findings ‘must be given conclusive

effect’ so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46,

| 49 (2d Cir. 2010) (quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)).

C. Analysis

In challenging the Commissioner’s denial decision, Plaintiff argues that the ALJ

“committed reversible error by failing to properly apply the treating physician rule.” (Dkt. No.

7, p. 5). Specifically, Plaintiff disputes the ALJ’s decision to afford less than controlling

weight to the opinion of Plaintiff's treating rheumatologist, Dr. Dreiner. (/d., p. 6). Plaintiff

z| asserts that the ALJ “fails to adequately discuss how these opinions are or are not well

supported by medically acceptable clinical and laboratory diagnostic technique[s].” (/d.).

Plaintiff further claims that the ALJ “cherry-pick[ed] a small portion of [Dr. Dreiner’s]

treatment notes to indicate inconsistency and portions of claimant’s reported daily activities.”

p. 7). Plaintiff also asserts that it was reversible error when the ALJ failed to explicitly

consider each of the “Burgess factors” with respect to Dr. Dreiner, and that the RFC

10

determined by the ALJ “does not include any limitations on movement of the neck even though

Dr. Dreiner opine[d] that such limits exist and it is consistent with the opinion of consultative

examiner Dr. Lorensen.” (/d.).

In response, the Commissioner asserts that the ALJ properly evaluated the opinion

evidence in the record. (Dkt. No. 9, pp. 3-10). Specifically, the Commissioner claims that the

4! ALJ’s reliance on non-treating, non-examining physicians was proper because those opinions

are consistent with other medical evidence in the record. (/d., pp. 3-5). The Commissioner

argues that the ALJ “gave good reasons for discounting Dr. Dreiner’s opinion, [by] indicating

that it was neither well-supported by the medical evidence, nor consistent with the other

substantial evidence of record.” (/d., pp. 5—6). The Commissioner further contends that the

RFC determined by the ALJ is supported by substantial evidence. (/d., pp. 10-11).

In deciding a disability claim, an ALJ is tasked with “weigh[ing] all of the evidence

available to make an RFC finding that [is] consistent with the record as a whole,” even if that

finding does not perfectly correspond with any of the opinions of cited medical sources. Matta

v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013). However, an ALJ is not a medical professional,

and “is not qualified to assess a claimant’s RFC on the basis of bare medical findings.” Ortiz

v. Colvin, 298 F. Supp. 3d 581, 586 (W.D.N.Y. 2018). In other words, there must be

substantial evidence to support a finding of functional limitations or lack thereof.

Relatedly, under the treating physician rule, an ALJ generally owes “deference to the

medical opinion of a claimant’s treating physician.” Church v. Colvin, 195 F. Supp. 3d 450,

453 (N.D.N.Y. 2016) (citing Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)). However,

“Tw]hen a treating physician’s opinion is not consistent with other substantial evidence in the

record, such as the opinions of other medical experts, . . . the hearing officer need not give the

1]

treating source opinion controlling weight.” /d. When a treating physician’s opinions are

disregarded, the ALJ must provide “good reasons” for doing so. See 20 C.F.R. § 404.1527(c).

Indeed, the Second Circuit has instructed that courts should “not hesitate to remand when the

Commissioner has not provided ‘good reasons’ for the weight given to a treating physician’s

opinion” or when the ALJ’s opinion does not “comprehensively set forth reasons for the weight

4! assigned to a treating physician’s opinion.” Halloran, 362 F.3d at 33.

Recently, in Estrella v. Berryhill, the Second Circuit reiterated its mandate that ALJs

must follow specific procedures in determining the appropriate weight to assign a treating

physician’s opinion. See generally 925 F.3d 90, 95—98 (2d Cir. 2019). The Circuit described

the applicable standard, writing that:

First, the ALJ must decide whether the opinion is entitled to

controlling weight. “[T]he opinion of a claimant’s treating

physician as to the nature and severity of [an] 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.’” Burgess, 537 F.3d at 128 (third brackets in original)

(quoting 20 C.F.R. § 404.1527(c)(2)). Second, if the ALJ decides

the opinion is not entitled to controlling weight, it must determine

how much weight, if any, to give it. In doing so, [the ALJ] must

“explicitly consider” the following, nonexclusive “Burgess factors”:

“(1) the frequen[cy], 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.” Selian v. Astrue, 708 F.3d

409, 418 (2d Cir. 2013) (per curiam) (citing Burgess, 537 F.3d at

129 (citing 20 C.F.R. § 404.1527(c)(2))). At both steps, the ALJ

must “give good reasons in [its] notice of determination or decision

for the weight [it gives the] treating source’s [medical] opinion.”

Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam)

(quoting 20 C.F.R. § 404.1527(c)(2)).

Id. at 95-96 (citing inter alia Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008)). The Circuit

noted that failure to “explicitly consider” these factors is a procedural error warranting remand

12

unless a “searching review of the record assures the reviewing court that the substance of the

treating physician rule was not traversed.” /d. And the Circuit has further clarified that while

failure to address each of the Burgess factors may constitute procedural error, it does not

necessarily warrant aremand. Guerra v. Saul, 778 F. App’x 75, 77 (2d Cir. 2019).

1) Dr. Dreiner’s Opinions

A Upon review of the record, the Court finds no error in the ALJ’s decision to assign less

than controlling weight to the opinions of Plaintiff’s treating rheumatologist Dr. Dreiner. (See

R. 23-24, 639-40). The ALJ found that Dr. Dreiner’s assessments were entitled to “little

weight” because “[h]er opinions are inconsistent with her own treatment notes, that

documented only intermitted swelling in the claimant’s fingers, but more often documented

normal joint evaluations.” (R. 23). The ALJ also found that Dr. Dreiner’s opinions were

| inconsistent with: (1) “[Plaintiff’s] reported ability to shovel snow, blow his driveway, and

play golf”; (2) the observations of the examining consultant, Dr. Lorensen, who found that

Plaintiff “could ambulate without difficulty and perform a full squat”; and (3) Plaintiffs

testimony that he could lift 20 pounds. (R. 24). In sum, the ALJ stated that Dr. Dreiner’s

“opinions are inconsistent with the record as a whole and given little weight.” (R. 24).

Indeed, Dr. Dreiner’s treatment notes show that the severity of Plaintiff's pain varied

widely, and Plaintiff’s testimony about his daily activities supports the ALJ’s conclusion that

he is capable of performing light work, including his past work as a budget analyst. (See

generally R. 30-53, 154-65, 204-365, 376-454, 570-618, 638-40). Although Dr. Dreiner

opined that Plaintiff would “never” be able to crouch or squat, Dr. Lorensen’s notes show that

Plaintiff was able to perform a full squat and walk on his heels and toes without difficulty.

(See R. 460, 640). Dr. Dreiner’s opinion that Plaintiff would be unable to sit for more than 4

13

hours in a workday is also contradicted by Plaintiffs testimony that he spends most of his day

sitting in a “hard chair.” (See R. 40, 639). Accordingly, the Court finds that the ALJ provided

good reasons for not giving controlling weight to the opinions of Dr. Dreiner. See Lamond v.

Astrue, 440 F. App’x 17, 21-22 (2d Cir. 2011) (affirming the ALJ’s decision not to give

controlling weight to the opinion of a treating physician where opinions from non-treating

Al examiners offered substantial evidence to the contrary).

Moreover, the Court finds that the ALJ sufficiently addressed each of the Burgess

factors with respect to Dr. Dreiner. Specifically, the ALJ noted that Dr. Dreiner had treated

Plaintiff “for several years” and that she specialized in rheumatology. (R. 22). The ALJ’s

decision provides a brief synopsis of Dr. Dreiner’s treatment records and refers to specific

treatment notes ranging from 2011 through 2018, showing that the ALJ considered her full

| treating history with Plaintiff. (R. 22). And the ALJ evaluated the consistency of Dr.

Dreiner’s opinions with the record as a whole, especially as compared to Dr. Lorensen’s

clinical assessment and Plaintiffs testimony about his daily activities. (See R. 23-24). In sum,

while the ALJ could have provided more detail, the decision provides sufficient explanation for

the Court to understand her rationale and determine that her ultimate conclusions were

supported by substantial evidence. Accordingly, the Court concludes that even if the ALJ’s

z| decision glossed over any of the Burgess factors, the substance of the treating physician rule

was not traversed in this case.

2) Dr. Lorensen’s Opinions

The Court also finds no error in the ALJ’s decision to afford only “partial weight” to

the assessments of Dr. Lorensen. Among other things, the ALJ noted that Dr. Lorensen had

only observed Plaintiff on one occasion, and that her opinions were “vague [and] without

14

specific vocational limitations.” (R. 23). The ALJ also pointed out that Dr. Lorensen did not

have access to Plaintiff’s “hearing testimony or subsequent records from rheumatologist Dr.

Dreiner.” (R. 23). Nonetheless, the ALJ cited Dr. Lorensen’s report in determining the RFC,

particularly the observation that Plaintiff could ambulate without difficulty and perform a full

squat. (R. 24). The Court thus finds that the ALJ provided good reasons for the weight given

A! to the opinion of Dr. Lorensen. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)

(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”).

3) RFC Determination

Further, the Court finds no merit to Plaintiffs claim that the ALJ “cherry picked” the

record for supporting evidence. To the contrary, the RFC determination is supported by the

observations, opinions, and treatment recommendations of Plaintiff's medical providers and

| evaluators, the diagnostic imaging and laboratory test results, Plaintiffs testimony and

representations, and the record as a whole. (R. 24). In particular, the ALJ noted substantial

evidence that: (1) during several evaluations in 2015, Plaintiff reported that his “skin and joints

felt good while taking medication”; (2) Plaintiff had no complaints or concerns during his

annual physical exam in 2015; (3) in March 2016 Plaintiff “ambulated with a normal gait”; (4)

in June 2016 Plaintiff exhibited “no active synovitis in any joint”; (5) in December 2016

Plaintiff reported some nerve sensitivity but his joints were “good”; (6) at his evaluation with

Dr. Lorensen in February 2017, Plaintiff “was in no distress, ambulated with a normal gait,

could walk on his heels and toes, and could perform a full squat”; (7) at the same exam,

Plaintiff had “full range of motion in his lumbar spine, negative straight leg-testing, non-tender

joints, and full strength and sensory function in all of his extremities”; and (8) during his

evaluations with Dr. Dreiner in 2018, Plaintiff reported “feeling ok and stable, and his physical

15

examinations were again normal.” (R. 22).

Further, the RFC is supported by Plaintiffs reported activities of daily living. The

record shows that, despite Plaintiffs pain, he was able to golf on occasion, go shopping

weekly, go out to dinner several times a month, perform yard work, mow the lawn on a riding

mower, and shovel snow. (See R. 41-42, 158, 204, 222, 470, 457, 486, 546, 616). Plaintiff

A! stated that he could not carry groceries, but he reported that he was able to perform other

household chores including cooking, cleaning, laundry, dusting, vacuuming, and loading the

dishwasher. (R. 42, 457). Plaintiff also reported that his medical conditions do not prevent

him from attending to any self-care and grooming needs. (See, e.g., R. 155-56, 457, 460).

Notably, although Plaintiff complained to Dr. Dreiner about “morning stiffness” lasting several

hours, the record also shows that he often denied experiencing any stiffness at all, or otherwise

| described it as “not too bad.” (See, e.g., R. 204, 213, 227, 241, 256, 262, 268, 411, 505, 543).

While Plaintiff sometimes reported pain at a level of ten out of ten, other times he reported a

zero or one. (See, e.g., R. 211, 222, 242, 244, 486). All of the above was clearly incorporated

into the ALJ’s decision and provides substantial evidence for the RFC determination. See

Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013) (noting that “whether there is

substantial evidence supporting the [claimant]’s view is not the question here; rather, [the

court] must decide whether substantial evidence supports the ALJ’s decision”).

Finally, the Court finds no error in the ALJ’s decision not to incorporate neck

limitations into the RFC. Indeed, although both Drs. Lorensen and Dreiner found that Plaintiff

suffered from moderate limitations with regard to his neck movements, Plaintiff fails to

provide any support for his claim that such impediments would prevent him from performing

light work. Importantly, this Circuit has frequently stated that moderate exertional and non-

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exertional limitations are not inconsistent with an RFC for light work. See, e.g., White v.

Berryhill, 753 F. App’x 80, 82 (2d Cir. 2019) (holding that a consultative examiner’s

assessment of moderate limitations to standing and performing other activities did not preclude

an RFC for light work where other evidence in the record supported the ALJ’s conclusions).

Here, the ALJ’s decision demonstrates a thorough review of the medical evidence, and

A! the RFC incorporates a number of exertional restrictions, including limitations on time

walking/standing and options for Plaintiff to alternate positions from sitting to

standing/walking every 30 minutes. (R. 20-21). The ALJ’s decision discusses the severity of

Plaintiff's neck impairments and found that they did not meet a listing because there was

insufficient medical evidence of physical limitation.” (R. 20). Thus, upon review of the

record, the Court finds no error in the ALJ’s decision not to include in the RFC specific

| limitations for movement of the neck. See Melanie W. v. Comm’r of Soc. Sec., No. 19-CV-

724, 2020 WL 2079432, at *10, 2020 U.S. Dist. LEXIS 75998, at *27—29 (N.D.N.Y. Apr. 30,

2020) (finding that “the ALJ did not err in failing to include plaintiffs cervical spine

limitations in his hypothetical to the [vocational expert], as these limitations were already

contemplated in the modified RFC for light work”); see also Greg L. v. Comm’r of Soc. Sec.,

No. 18-CV-1339, 2020 WL 1332199, at *3, 2020 U.S. Dist. LEXIS 49433, at *8 (N.D.N.Y.

Mar. 23, 2020) (finding no error in the ALJ’s failure to include limitations for movement of his

head and neck because the ALJ discussed the relevant medical evidence and developed an RFC

that accounted for the limitations).

The Court also notes that Plaintiffs counsel failed to question the vocational expert about the potential

erosion of occupational opportunities based on Plaintiff's alleged problems with neck pain and mobility.

(See R. 50-52).

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IV. CONCLUSION

Although Plaintiff suffers from several serious ailments, it is not for the Court to

overturn the ALJ’s decision if that decision was supported by substantial evidence in the record.

Indeed, even “[w]here there is substantial evidence to support either position, the determination

is one to be made by the factfinder.” A/ston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990).

A! After careful review of the record, the Court concludes that the ALJ applied the correct legal

standards and the decision is supported by substantial evidence.

For the foregoing reasons it is

ORDERED that the Commissioner’s decision is AFFIRMED; and it is further

ORDERED that the Clerk of the Court is directed to close this case and provide a copy

of this Memorandum-Decision and Order to the parties in accordance with the Local Rules of

the Northern District of New York.

IT IS SO ORDERED.

Date: October 23, 2020

Syracuse, New York

Lae bAMocln

rman A. Mordue

Senior U.S. District Judge

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