Bridge v. Saul

NORTHERN DISTRICT OF NEW YORK

______________________________________________________________________

RYAN B.,

Plaintiff,

v. 6:19-CV-1448

(ATB)

COMMISSIONER OF THE SOCIAL SECURITY

ADMINISTRATION,

Defendant.

______________________________________________________________________

B. BROOKS BENSON, ESQ., for Plaintiff

AMELIA STEWART , Special Asst. U.S. Attorney for Defendant

ANDREW T. BAXTER, U.S. Magistrate Judge

MEMORANDUM-DECISION and ORDER

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

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

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

Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4,7).

I. PROCEDURAL HISTORY

Plaintiff protectively filed applications for Social Security Disability Insurance

Benefits (“DIB”) and Supplemental Security Income on November 24, 2015, alleging

disability beginning on June 1, 2014 due to a learning disability, carpal tunnel

syndrome, and “lower back problems.”1 (Administrative Transcript (“T.”) 79-81).

Plaintiff’s claims were denied initially on March 16, 2016. (T. 79-80). Plaintiff made a

1 At his administrative hearing, plaintiff amended his onset date to December 10, 2015. (T. 27).

Plaintiff suffered a stroke on December 18, 2017, and the effects of this additional impairment have

12, 20182 before Administrative Law Judge (“ALJ”) Yvette N. Diamond. (T. 24-78).

ALJ Diamond heard testimony from plaintiff and from Vocational Expert (“VE”)

Jennifer Guediri. (Id.) On July 11, 2018, ALJ Diamond issued an unfavorable decision.

(T. 106-119). The ALJ’s decision became the final decision of the Commissioner when

the Appeals Council denied plaintiff’s request for review on September 19, 2019. (T. 1-

5).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

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

disability benefits must establish that 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). In

addition, the plaintiff’s

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

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

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

substantial gainful work which exists in the national economy, regardless

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

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

hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

2 Plaintiff appeared for a hearing on January 30, 2018, but the hearing was adjourned so that

plaintiff could obtain counsel. (T. 13-23).

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

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

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

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

significantly limits his physical or mental ability to do basic work

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

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

which meets or equals the criteria of an impairment listed in Appendix 1 of

the regulations. If the claimant has such an impairment, the

[Commissioner ] will consider him disabled without considering

vocational factors such as age, education, and work experience . . . .

Assuming the claimant does not have a listed impairment, the fourth

inquiry is whether, despite the claimant’s severe impairment, he has the

residual functional capacity to perform his past work. Finally, if the

claimant is unable to perform his past work, the [Commissioner] then

determines whether there is other work which the claimant can perform.

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

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

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

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

B. Scope of Review

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

whether the correct legal standards were applied and whether substantial evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. FACTS

Plaintiff was born on August 16, 1979 and was 38 years old at the time of the

ALJ hearing. (T. 31). Plaintiff was single and lived alone in an apartment. (Id.)

Plaintiff testified that he finished the 11th grade, taking special education classes, and

never achieved his GED. (T. 32). He testified that he could not read or write. (Id.)

worked in 2013 or 2014 for Brian’s Body Services. (T. 37-38). Plaintiff testified that

he stopped working because he was laid off, but it coincided with the time that his back

was “just getting worse.” (T. 38).

Plaintiff testified that he had not worked since that time because his back hurt too

much to walk around, and he had never applied for a desk job because he could not read

or write. (T. 38). In addition to his inability to read and write, plaintiff testified that he

believed that he was unable to work due to his back, his legs, his hands, and

“everything.” (T. 39). The ALJ asked plaintiff about a note in the record indicating that

plaintiff had been in a “fist fight” the year before the hearing and had broken his wrist.

(T. 39). Plaintiff testified that the fight occurred in the parking lot of a grocery store

when plaintiff ran into someone he knew, and that person “swung at” him. Plaintiff

stated that he was only defending himself. (T. 39).

Plaintiff testified that since his amended alleged disability onset date, he was

hospitalized for a stroke in December of 2017 and for gastrointestinal bleeding in

March and April of 2018. (T. 39-40). Plaintiff changed treating primary care providers

four months prior to the hearing. (T. 40-41). Plaintiff was treating with Paula Vecchio,

M.D., but could not remember the names of other physicians or other medical personnel

with whom he had treated. (T. 41-42). When asked about his psychiatric impairments,

plaintiff stated that he only took his medications “sporadically,” when he felt a panic

attack coming on, and he could not remember the name of the provider who prescribed

his psychiatric medication. (T. 41-42).

treating provider, who counseled him to stop drinking and smoking. (T. 43-44). When

plaintiff failed to do so, according to the record, it caused his gastrointestinal bleeding

in March of 2018.3 (T. 43-44). Plaintiff stated that he switched primary care providers

because he “got fed up” with them asking him to come in every week for blood tests.

(T. 43). At the time of the hearing, plaintiff was only taking a baby aspirin as a “blood

thinner” for stroke prevention and his psychiatric medications “as necessary.” (T. 45-

46). Plaintiff testified that the doctor took him off the stronger blood thinner because

plaintiff was a Jehovah’s Witness and refused to have blood transfusions, so the doctor

was trying to avoid any bleeding problems. (Id.)

Plaintiff testified that he could attend to his own personal needs, house cleaning,

and laundry, but did not do yard work for himself or anyone else.4 (T. 47-48). He

testified that he wore a wrist brace at night because of his carpal tunnel syndrome. (T.

46). Plaintiff stated that he had a driver’s license, but did not own a car and took public

transportation when he wanted to go somewhere. (T. 48). He took the bus to run

errands and prepared his own meals. (T. 49). Plaintiff could walk “a couple” miles if he

stopped every “couple” blocks to rest his legs. (T. 49).

3 At that time, plaintiff was also smoking two packs of cigarettes per day and taking anti-

inflammatory medication. (T. 44). The ALJ asked about plaintiff’s drinking and smoking, and plaintiff

stated that he stopped drinking and smoking excessively after the stroke, which did not explain the

gastrointestinal bleeding three months after the stroke due to the combination of alcohol, smoking, and

anti-inflammatory medication. (T. 45-47).

4 The ALJ questioned plaintiff about the notation in the record, indicating that plaintiff hurt

himself “in the last year or so,” doing auto repairs for someone else. (T. 48). Plaintiff stated that he did

not know what the ALJ was talking about. (Id.)

something to eat or go to a movie. (T. 49-50). Occasionally, plaintiff got a ride to, and

stayed at his sister’s home. (T. 50). He studied his religion with a friend for an hour

once per week, and stated that he did not attend sports events because he did not have

the money for it. (T. 50). Plaintiff told the ALJ that “a couple” summers prior to the

hearing,5 he went to North Carolina on vacation by himself on the bus. (T. 51). He saw

his brother there, and he went to the beach a few times. (Id.) Sometimes, one of

plaintiff’s friends picked him up and took him for a ride to Sylvan Beach so that he

could get out of the city. (T. 51-52).

Although plaintiff testified that he did not have any hobbies, he also stated that

he enjoyed music and liked to watch television. (T. 52). He does not use social media

or read books because he cannot read.6 He does not follow sports, but would go to a car

show if there were one held locally. (T. 52). Plaintiff stated that he got up at 6:00 or

7:00 in the morning, ate breakfast, and watched TV if he did not have a doctor’s

appointment scheduled. (T. 53). If plaintiff had a medical appointment, sometimes

Cliff Franklin7 would come along to help him with the paperwork because of his

5 This trip would have occurred in 2016 because the hearing was in June of 2018.

6 Plaintiff testified that he could recognize small words like “the” or “cat,” but could not write a

full sentence. (T. 56). He could “do a little math.” (T. 55).

7 Clifford Franklin, II accompanied plaintiff to the January 2018 hearing. (T. 16). Mr. Franklin

works for the Resource Center for Independent Living in Utica, New York. (Id.) He was a caseworker

assigned to the plaintiff. (T. 55). He accompanied plaintiff to the January hearing as his

“representative,” but there was no paperwork filed prior to the hearing to support the appointment, Mr.

Franklin had never appeared as a representative at a Social Security Hearing, and the hearing was

adjourned so that plaintiff could hire an attorney. (T. 16-18).

documents and helped him complete the paperwork for his driver’s license. (T. 55).

Plaintiff estimated that he could lift up to 50 pounds, sit for one or two hours at a

time before he needed to get up and move around, and could walk approximately five

minutes before he had to rest. (T. 53-54). Plaintiff also testified that he could carry a

dish from the table to the sink or the counter to the table. (T. 54). Plaintiff testified that

his problems walking predated the stroke, that he had muscle spasms at night, and that

his calves would hurt when he was walking so that he had to sit down and rest every

two blocks. (T. 58).

Plaintiff testified that, after the stroke,8 he also had numbness and pain in both

hands. He stated that the pain was intermittent, but the numbness was constant. (T. 58).

When he had pain, it felt as if it were ripping the tendons out of his hands. (Id.)

Plaintiff testified that “sometimes [he] drops stuff,” like water bottles or soap in the

shower. (T. 59). He stated that his hands hurt every time he made fist. (Id.)

Plaintiff testified that his doctors at Upstate Medical Center told him that he

likely had strokes prior to 2017, and it was possible that he could suffer more strokes in

the future. (T. 59-60). Plaintiff stated that his back pain comes and goes, but it is

unbearable when he has it. (T. 61). Plaintiff testified that his back pain was worse lying

in bed too long, doing everyday things, riding in a car, standing, lifting, pushing, and

8 Later in his testimony, plaintiff stated that he always had pain and numbness in his hands, and

that these symptoms pre-dated the stroke. (T. 60). The condition merely got worse after the stroke.

(Id.)

approximately one to three or four hours, two or three times per day. (T. 63). Plaintiff

also testified that he sometimes would lie down because of the pain. (T. 63). Plaintiff

testified that he needed to lie down frequently during the day even before the stroke,

but after the stroke, he needed to rest for longer periods of time. (T. 65). He stated

that the “medications” he is on because of the stroke cause him to have urinary

frequency and “diarrhea all the time.” (T. 64). He must stay close to a bathroom

because he had to urinate at least twice per hour and had diarrhea every hour. (Id.)

Plaintiff testified that although he cannot read, he can read dollar amounts and

knows which bills need to be paid. (T. 65-66). Plaintiff often took his bills to Mr.

Franklin to help him read the documents. (T. 65). Plaintiff stated that he did not need

to read his bills because Social Services pays them, but then stated that he could pay

them on his own if he had to. (T. 66). Plaintiff testified that he had problems with

concentration before the stroke, but he believed that the problems were worse after. (T.

67).

The ALJ heard testimony from VE Jennifer Guidieri. She testified that plaintiff’s

past work was Automobile-Body Repairer Combination, which could be performed at

medium to very heavy levels.10 (T. 68-69). The ALJ asked the VE four hypothetical

questions. The first hypothetical assumed an individual of plaintiff’s age, education,

9 Plaintiff did not spontaneously make these allegations. Counsel was reading the plaintiff’s

physical therapist’s notes and asking plaintiff whether he agreed with the statements. (T. 60-61).

10 VE Guidieri testified that, based on plaintiff’s testimony, his prior relevant work was

performed at a medium level of exertion. (T. 69).

pounds frequently, stand or walk for six out of eight hours, sit for six out of eight hours,

frequently climb stairs, balance, stoop, kneel, crouch, and crawl, but cannot climb

ladders. (T. 69). The individual may not have concentrated exposure to extreme heat,

vibration, or hazards. (Id.) The individual would be limited to simple, routine tasks that

are not fast-paced and that have no strict production demands. (Id.) Finally, the

hypothetical individual is limited to low-stress work, which is defined as having

occasional decision-making and occasional changes in the work setting. (Id.)

The second hypothetical question assumed the facts of the first hypothetical and

added that the individual would require oral instructions because he could not read. (T.

70). The third hypothetical question assumed the limitations listed in the first two

questions and added that the individual would be required to change positions from

sitting to standing, where he could stand and walk for half an hour and then sit for five

to ten minutes while remaining on task. (T. 71). The fourth and final hypothetical

added a further limitation that the individual was limited to “frequent” handling and

fingering. (T. 72).

Based on the first hypothetical, the VE testified that plaintiff could not perform

his past relevant work, but could perform the work of a bagger, sorter of small items,

and hand filler. (T. 69-70). All these jobs were unskilled, light work. (Id.) The VE

testified that the number and type of jobs would not be affected by the limitations that

the ALJ added in the second and third hypotheticals as long as the individual could

remain on task while alternating between standing and sitting. (T. 71-72). With respect

testified that the “bagger” position would be eliminated because it required more

“constant” fingering, but it could be replaced by an assembler of small parts job. (T. 72-

73). The VE testified that employers would generally tolerate one unexcused or

unscheduled absence per month, and would not tolerate an employee being more than

10% off task in addition to his or her regularly scheduled breaks. (T. 73). The VE also

stated that her information was consistent with the Dictionary of Occupational Titles

(“DOT”), but that the sitting/standing requirement and the absentee/off-task tolerances

were based on twenty years of experience in vocational counseling, personal

observation, and interviews with employers. (T. 73-74).

In response to cross-examination by plaintiff’s counsel, the VE testified that if

the individual were limited to only “occasional” as opposed to “frequent” handling, this

limitation would rule out the sorter, bagger, and small assembler jobs. (T. 76). The VE

also testified that if the individual were required to lie down for ten minutes every hour

to relieve pain, this restriction would eliminate all work. (Id.) At the end of the hearing,

the ALJ stated that she would keep the record open for any further medical evidence

that plaintiff wished to submit. (T. 77).

There are a substantial number of relevant medical records in the file. However,

rather than summarizing the medical records at the outset, I will refer to the pertinent

records and proceedings during my discussion of the plaintiff’s arguments.

IV. THE ALJ’S DECISION

The ALJ found that plaintiff met the insured status requirements through March

(“SGA”) since his amended onset date of December 15, 2015. The ALJ then

determined that plaintiff had the following severe impairments at step two of the

sequential evaluation: degenerative disc disease, carpal tunnel syndrome (“CTS”),

anemia, status-post cerebrovascular accident (“CVA” or “stroke”), learning disorder,

major depressive disorder, and generalized anxiety disorder. (T. 108-109). The ALJ

also found at step three of the sequential evaluation that none of the plaintiff’s severe

impairments, alone or in combination, met or medically equaled the severity of Listed

Impairments.11 (T. 109-111).

At step four of the evaluation, the ALJ determined that plaintiff physically had

the RFC to perform light work, with the following limitations: plaintiff could lift 20

pounds occasionally and ten pounds frequently; stand and/or walk for six out of eight

hours and sit for six out of eight hours. (T. 111). The plaintiff would also be able to

frequently climb stairs, kneel, stoop, balance, crouch, and crawl, but could not climb

ladders. (Id.) Plaintiff could “frequently” handle and finger, but required the option to

stand for thirty minutes and then sit for five minutes as needed throughout the day,

while remaining on task. (Id.) The plaintiff could not have concentrated exposure to

extreme heat, vibrations, or hazards. (Id.)

Mentally, the plaintiff would be limited to simple, routine tasks that are not fast-

paced and do not have strict production demands. The ALJ concluded that plaintiff was

able to perform low-stress work, which is defined as work involving only occasional

11 There is no argument that plaintiff is disabled at step three; thus, the court will not explain the

ALJ’s rationale in detail at this step of the evaluation.

would be able to perform tasks with oral instructions or by instruction by

demonstration, but was unable to read, and was limited to simple mathematical

calculations. (Id.)

In making this determination, the ALJ reviewed plaintiff’s testimony as well as

the medical evidence of record, detailing plaintiff’s emergency room records,

hospitalization records, treatment records, including evidence of his 2017 stroke, with

all of its subsequent affects on plaintiff’s abilities. (T. 113-15). The ALJ then

determined the weight to be given to the opinion evidence. (T. 115-17). The ALJ gave

“partial” weight to the 2016 consultative evaluation conducted by Dr. Brian Cole, M.D.

(T. 115) (citing T. 352-57). The ALJ gave “little” weight to the June 5, 2018 stroke

medical source statement (“MSS”) written by Dr. Ramesh Cherukuri, M.D. and little

weight to the MSS written by Dr. Kenneth Visalli, D.O., plaintiff treating primary care

provider. (T. 115-16) (citing T. 1068-72, 1190-97). With respect to plaintiff’s mental

capabilities, the ALJ gave “great” weight to S. Juriga, Ph.D., a non-examining

physician and “partial” weight to the consultative opinion written by examining

psychologist, Katie Lewis, Ph.D. (T. 116-17) (citing T. 92-100, 346-50). The ALJ

detailed her reasoning for the weight that she gave to the individual providers, and in

fact, noted some additional mental limitations based upon “new evidence submitted at

the hearing level.” (T. 116).

Based on the above RFC, the ALJ found that plaintiff could not perform any of

his past relevant work. (T. 117). However, given the VE’s testimony, plaintiff would

his additional limitations placed on his ability to perform a full-range of light work and

his inability to read and write. (T. 118). Thus, the ALJ found that plaintiff was not

disabled from his alleged date of onset, through the date of the ALJ’s decision.

V. ISSUES IN CONTENTION

Plaintiff raises several arguments in support of his position that the ALJ’s

decision is not supported by substantial evidence:

1. The ALJ failed to properly weigh the medical evidence in determining

plaintiff’s RFC, including the opinions of Dr. Vasalli, Dr. Cherukuri, and

Dr. Cole. (Plaintiff’s Brief (“Pl.’s Br.”) at 13-23 - Points I-III) (Dkt. No.

13).

2. The ALJ failed to properly consider plaintiff’s pain and subjective

complaints. (Pl.’s Br. at 24-25 - Point IV).

3. Because the ALJ’s RFC determination was not properly supported, the

hypothetical question was improper, and the step five determination was

not supported by substantial evidence. (Pl.’s Br. at 25 - Point V).

Defendant argues that the Commissioner’s decision is supported by substantial

evidence. (Defendant’s Brief (“Def.’s Br.”) at 5-19) (Dkt. No. 19). For the following

reasons, this court agrees with the defendant and will recommend affirming the

Commissioner’s decision.

VI. RFC/WEIGHING EVIDENCE

A. Legal Standards

1. RFC

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

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

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

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

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

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

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

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

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

In rendering an RFC determination, the ALJ must consider objective medical

facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s

subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R.

§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)

(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.

Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL 587459, at *8 (N.D.N.Y. Feb 13, 2019);

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An ALJ must specify the functions

plaintiff is capable of performing, and may not simply make conclusory statements

regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241, 267

(N.D.N.Y. 2010); Martone v. Apfel, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler,

728 F.2d 582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183, Stephens v.

Colvin, 200 F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v. Comm’r of Soc. Sec.,

307 F. Supp. 2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must also include a

narrative discussion, describing how the evidence supports the ALJ’s conclusions,

3:17-CV-01266 (TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing

SSR 96-8p, 1996 WL 374184, at *7).

2. Weight of the Evidence/Treating Physician

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

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

374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues

are not “medical issues,” but are “administrative findings.” The responsibility for

determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL

374183, at *2. These issues include whether the plaintiff’s impairments meet or equal a

listed impairment; the plaintiff’s RFC; how the vocational factors apply; and whether

the plaintiff is “disabled” under the Act. Id.

In evaluating medical opinions on issues that are reserved to the Commissioner,

the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The

ALJ must clearly state the legal rules that he applies and the weight that he accords the

evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL 3776382, at *2

(S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324, 2012 WL

3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).

“Although the treating physician rule generally requires deference to the medical

opinion of a claimant’s treating physician, . . . the opinion of the treating physician is

not afforded controlling weight where . . . the treating physician issued opinions that

are not consistent with other substantial evidence in the record . . . .” Halloran v.

Cir. 2002); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If an ALJ decides not to give

the treating source’s records controlling weight, then he must explicitly consider the

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

the amount of medical evidence supporting the opinion; (3) the consistency of the

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

specialist.” Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019) (quoting Burgess v.

Astrue, 537 F. 3d 117, 120 (2d Cir. 2008)). “[T]he ALJ must ‘give good reasons in [its]

notice of determination or decision for the weight [it gives the] treating source’s

[medical] opinion.’ ” Id. at 96 (citing Halloran v. Barnhart, 362 F.3d at 32). Should an

ALJ assign less than controlling weight to a treating physician’s opinion and fail to

consider the above-mentioned factors, this is a procedural error. Id. It is impossible to

conclude that the error is harmless unless a “searching review of the record . . . assures

us that the substance of the treating physician rule was not traversed.” Id.

B. Application

1. Dr.Visalli

Plaintiff first argues that the ALJ failed to give “controlling” weight to the

opinion of Dr. Kenneth Visalli, D.O., plaintiff’s treating primary care provider. The

ALJ gave Dr. Visalli’s MSS “little weight.” (T. 116) (citing T. 1190-97). The ALJ

noted that Dr. Visalli’s MSS would indicate that the plaintiff could perform a “reduced”

range of sedentary work, could only “occasionally” use his hands, would need frequent

breaks throughout the day, and would be off-task at least 25% of the time. (T. 116).

the plaintiff in June of 2018, finding that plaintiff had normal grip strength and

sensation bilaterally. (T. 116) (citing T. 1188-89). The ALJ also relied on the following

statement by Dr. Visalli in his June 21, 2018 MSS:

On my exam, his strength is intact in his hands and legs, but

this is only a brief examination. Given his complaints, it

seems unlikely that he can maintain this strength for a normal

work environment.

(T. 1193). The ALJ stated that “given this opinions [sic] inconsistency with his own

examination findings, as well as [] being unsupported by the other objective evidence

in the record, I give this opinion little weight.” (T. 116) (emphasis added).

Plaintiff began seeing Dr. Visalli on March 20, 2018.12 (T. 814-16). Dr. Visalli

saw plaintiff twice more before he wrote the MSS: once on April 13, 2018, and the day

that he wrote the MSS on June 21, 2018. (T. 1186-89). Plaintiff argues that by citing

“inconsistency” within Dr. Visalli’s own treatment notes, the ALJ was substituting her

lay judgment for competent medical opinion. This court disagrees. In Ramsey v.

Comm’r of Soc. Sec., No. 19-3306, __ F. App’x __, 2020 WL 6372994, at *1 (2d Cir.

Oct. 30, 2020), the court upheld an ALJ’s determination when, rather than “forge his

own medical opinions based on raw data or reject diagnoses provided by medical

professionals,” the ALJ “accurately summarized medical notes and opinions . . . .” Id.

It is not error to discount the treating physician’s opinion “citing contradictory notes or

other medical opinions,” and explaining the reasons for doing so. Id. (citing Veino v.

12 Plaintiff transferred his care to Dr. Visalli’s practice on March 20, 2018 from his previous

primary care provider Dr. Paula Vecchio, M.D. (T. 814).

ALJ to resolve” conflicting findings)). This is exactly what the ALJ did in this case.

Even assuming that Dr. Visalli qualified as plaintiff’s treating physician, given

that he only saw the plaintiff three times before he wrote his MSS, the ALJ is directed

to consider the consistency of the opinion with the doctor’s own treatment notes and

other evidence of record. Ramsey, supra. In the June 2018 MSS, Dr. Visalli qualified

his opinion by stating that, on his examination, plaintiff’s strength was intact in his

hands and legs, but then stated that it was only “a brief examination.”13 However, Dr.

Visalli had seen plaintiff twice before. On March 20, 2018, he noted that plaintiff was

a “poor historian,” and that he had some “strange sensation in his hands.” (T. 814).

Upon physical examination, plaintiff had normal gait, no obvious focal neurological

deficits, his speech was clear, there was no swelling in his joints. (T. 815).

On April 13, 2018, Dr. Visalli stated that plaintiff was feeling a lot better, and

that although he was complaining of “some” numbness in his hands, “he has been rather

lucky from the strokes and does not have any significant residual deficits.” (T. 797)

(emphasis added). Plaintiff’s gait and station were normal, and his “digits and nails”

were normal. (T. 798). He had normal cranial nerves, with no focal deficits. (Id.)

Although plaintiff had some numbness noted on the left hand, the neurologic exam was

13 Dr. Visalli did note that plaintiff had seen a vascular surgeon recently, but that the opinion

was not complete, so it did not contain a specific statement from the vascular surgeon. However, an

ultrasound performed prior to the visit to the vascular surgeon revealed normal findings on the right

lower extremity, and on the right, a normal ABI, “but a greater than 50% stenosis in the proximal

anterior tibial artery.” (T. 1186). The ankle-brachial index (“ABI’) test compares the blood pressure

measured at the ankle with the blood pressure measured at the arm. https://www.mayoclinic.org/

tests-procedures/ankle-brachial-index/about/pac-20392934. A low ABI may indicate a narrowing or

blockage of the artery in the legs. Id.

lower extremities.” (Id.)

Finally, on June 21, 2018, the day that he signed an MSS stating that plaintiff

could only lift and carry up to 10 pounds, and could only reach, handle, finger, feel,

push and pull “occasionally,” Dr. Visalli’s physical examination found plaintiff had no

focal neurological deficits, could move all four extremities “without difficulty,” his grip

strength was 5/5 bilaterally, his finger to nose testing was normal, his cranial nerves

fully intact, and his sensation to light touch was “fully intact” in both arms and hands.

(T. 1188). Plaintiff’s leg swelling had completely resolved, and the GI bleeding that

plaintiff experienced after his stroke hospitalization had also improved.14 (T. 1186). In

his MSS, he noted that the neurologist found ataxia15 in left arm “per their notes.” (T.

1193). Dr. Visalli stated that he did not see the ataxia on his examination, but noted

that it was not his specialty. (T. 1193). Dr. Visalli only saw the plaintiff three times,

and each time, he noted full strength, full mobility, and full sensation, notwithstanding

some complaints of numbness, and noted that plaintiff did not have “significant residual

deficits” from the stroke.

Plaintiff also argues that Dr. Visalli was entitled to rely on plaintiff’s subjective

complaints, which may have been different than what Dr. Visalli found on his physical

14 Plaintiff was taken off his anticoagulants, and after discussion with his specialist, prescribed

aspirin alone “since he is a Jehovah’s Witness and the concern was that if he developed any further

bleeding he may not be reliable.” (T. 1186).

15 Ataxia is defined as a lack of muscle control or coordination of voluntary movements. https://

www.mayoclinic.org/diseases-conditions/ataxia/symptoms-causes/syc-20355652

doctor is entitled to rely on a patient’s subjective complaints, there are also cases, such

as this one, where the ALJ was correct in rejecting the physician’s opinion, in part,

because it was based on plaintiff’s subjective complaints. See Lewis v. Colvin, 548 F.

App’x 675, 678 (2d Cir. 2013) (affirming ALJ’s determination where the treating

physician’s “final opinion was inconsistent with his own prior opinions and the

findings of the other medical examiners, and was based on [the plaintiff’s] subjective

complaints”); Christopher B. v. Saul, No. 8:19-CV-905 (BKS), 2020 WL 5587266, at

*14 (N.D.N.Y. Sept. 18, 2020) (same). In this case, Dr. Visalli specifically stated that

plaintiff’s subjective complaints were inconsistent with his own examination, and the

ALJ found that the MSS was also inconsistent with other medical evidence in the

record.

The ALJ was not “substituting” her opinion by finding that Dr. Visalli’s physical

examination results and comments were inconsistent with Dr. Visalli’s restrictive MSS.

Plaintiff himself testified that he could lift 50 pounds. (T. 53). Plaintiff testified that he

could reach into the refrigerator and could carry dishes. (T. 54). Plaintiff testified that

he could sit for one to two hours and walk for five to ten minutes at a time. (T. 54). Dr.

Visalli stated that plaintiff could sit for one hour, stand for one hour, and walk for ten

minutes at a time for a total of three hours sitting, four hours standing, and one hour

16 See e.g. Marcano v. Berryhill, No. 13-CV-3648 (NSR/LMS), 2017 WL 2571353, at *17

(S.D.N.Y. Mar. 29, 2017) (citing inter alia Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir.

2003) (finding that reliance on subjective complaints does not undermine the doctor’s opinion

regarding functional limitations because “[a] patient's report of complaints, or history, is an essential

diagnostic tool.”)).

for 30 minutes and then sit for five minutes “as needed” throughout the day while

remaining on task, in addition to regular breaks.17 (T. 111).

The plaintiff began seeing Dr. Visalli in March of 2018, and he is claiming

disability beginning in December of 2015. Thus, the ALJ was entitled to analyze

findings and reports prior to Dr. Visalli’s first examination in 2018 and prior to

plaintiff’s stroke in December of 2017. These previous reports found that plaintiff had

normal gait, could squat fully, could walk on his heels and toes, had full range of

motion, and normal strength, sensation, and reflexes. (T. 113) (citing T. 352-56

(consultative opinion (Dr. Cole) February 2016); 512-13 (Dr. Vecchio, plaintiff’s

former treating internist); 833-46 (emergency room records - low back pain, but no

numbness or weakness in the lower extremities); 1169 (evaluation by NP Corey

Burgess - normal strength, normal range of motion, notwithstanding back pain)). While

not all of this medical evidence was discussed in the section of the ALJ’s opinion

which analyzed the “weight” that she gave to the opinion evidence, she cited this

medical evidence in other sections of her opinion.

Plaintiff argues that the ALJ should have obtained “further” medical evidence

from vascular18 surgeon Dr. Ankur Chawla, M.D., who plaintiff first saw on June 13,

2018, the day after the ALJ’s hearing, and whose report was discussed by Dr. Visalli in

17 It is unclear whether Dr. Visalli would have had the same opinion regarding plaintiff’s ability

to be “on task” if he knew that the RFC included the ability to take breaks “as needed” throughout the

day.

18 Plaintiff’s brief refers to Dr. Chawla as a neurosurgeon. (Pl.’s Br. at 17). However, the

medical records refer to him as a vascular surgeon. (T. 1183).

review an arterial duplex test of plaintiff’s lower extremities that was performed on

May 17, 2018. (T. 1181-82). However, Dr. Chawla never commented on the test in his

June 13, 2018 notes, which indicate at the top that they were “preliminary.” (T. 1183).

The arterial duplex test report states that in plaintiff’s right leg, there was less than 50%

stenosis in six of the arteries tested, and more than 50% stenosis in the proximal

anterior tibial artery. (Id.) However, the ABI at rest was normal, even on the side

showing stenosis. (Id.)

Dr. Visalli discussed Dr. Chawla’s report, and its failure to specify any opinion

about plaintiff’s claudication symptoms in his June 21, 2018 treatment notes. (T. 1186).

Plaintiff argues that the ALJ should have contacted Dr. Chawla to determine what the

effect of the arterial stenosis was on plaintiff’s ability to work and that the case should

be remanded to obtain this additional information. The court notes that the arterial

duplex test that Dr. Chawla was reviewing was taken on May 17, 2018, plaintiff saw

Dr. Chawla on the day after the hearing (June 13, 2018), and the ALJ kept the record

open for additional medical evidence until June 26, 2018. (T. 77). Plaintiff submitted

the additional records without indicating that they were incomplete. These additional

records include Dr. Visalli’s June 21, 2018 report, discussing Dr. Chawla’s

“incomplete” report, stating that although the ABI was normal on the right side, there

was greater than 50% stenosis, and there were no “specifics” from the vascular surgeon.

(T. 1186). However, Dr. Visalli’s report also states that plaintiff was “told” that Dr.

Chawla thought that the “claudication-type symptoms might be neurological in

failed to develop the record regarding Dr. Chawla’s report.

While it is true that the ALJ has the duty to develop the record even if the

plaintiff is represented by counsel as he was in this case, the ALJ fails in this duty only

when there are “obvious gaps” in the record. Eusepi v. Colvin, 595 F. App’x. 7, 9 (2d

Cir. 2014) (summary order). The ALJ is not required to develop the record further if

“the evidence already presented is adequate for [the ALJ] to make a determination as to

disability.” Janes v. Berryhill, 710 F. App’x 33, 34 (2d Cir. 2018) (summary order).

In this case, although it is true that Dr. Chawla did not “complete” his opinion,

there was ample time to add that opinion to the record. As stated above,

notwithstanding plaintiff’s impairments and claim of problems walking, as cited above,

every examination, including Dr. Visalli’s June 21, 2018 report, indicated that

plaintiff’s strength and sensation were almost completely intact. (See T. 1188). It also

appears from Dr. Visalli’s June 21, 2018 report that the etiology of plaintiff’s

claudication symptoms was unclear. (T. 1186, 1188, 1189). To the extent that this

condition might affect the plaintiff’s future abilities, it is not relevant to the ALJ’s

decision herein.20 Thus, the ALJ’s consideration of Dr. Visalli’s MSS was supported by

19 Dr. Visalli also cited to plaintiff’s degenerative disc condition, noting that the limping

condition could be caused by his back impairment. (T. 1186).

20 The court notes that on September 29, 2017 (prior to plaintiff’s stroke), he was examined by

Corey Burgess, N.P. (T. 1168-70). Plaintiff was referred to NP Burgess by Leo Patrick Sullivan, M.D.,

from Surgical Associates of Utica. (T. 1168). NP Burgess reviewed plaintiff’s history and stated that

plaintiff complained of back pain and cramping in his legs while walking. (Id.) NP Burgess stated that

plaintiff was initially seen by Dr. Sullivan for a vascular “eval.” which was negative. (Id.) On August

17, 2017, a report, authored by a provider from Surgical Associates of Utica states that plaintiff’s

ultrasound was negative for Deep Vein Thrombosis (“DVT”), and he had “excellent” pulses in his feet.

2. Dr. Ramesh Cherukuri

Plaintiff argues that the ALJ failed to give Dr. Cherukuri’s MSS the appropriate

weight, even though at the time he wrote the “Stroke MSS,” he had only examined the

plaintiff once on May 2, 2018. The ALJ gave Dr. Cherukuri’s MSS “little weight,”

including the finding that plaintiff would be limited to less-than-sedentary work, would

be off task 15% of the time, and would be absent more than 4 days per month. (T. 114-

15). Dr. Cherukuri is a neurologist. However, having seen the plaintiff only once, it is

questionable that Dr. Cherukuri would have been considered a treating physician at the

time that he completed the form report in June of 2018. Petrie v. Astrue, 412 F. App’x

401, 405 (2d Cir. 2011) (physician who sees a patient only once or twice does not have

a chance to develop an ongoing relationship with the patient and thus is generally not

considered treating physician) (citing Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d

Cir. 1983)). The ALJ correctly considered the doctor’s limited contact with the

plaintiff. Burgess, supra. The ALJ stated that, at the one examination conducted by Dr.

Cherukuri, plaintiff reported calf pain, but denied any residual problems from his

stroke, and apart from “mild left hand ataxia on finger-to-nose testing, the examination

was otherwise normal. (T. 115). The ALJ also stated that the MSS was inconsistent

(T. 473). The note stated that “I think his problem is mostly neurogenic.” (T. 473). There is no

signature under the notation “seen by.” (T. 474). There is a subsequent note, dated August 2, 2017 by

LPN Marguerite Spano, but it appears to be a “nurse’s note” from the same day. (T. 475). It is safe to

assume that the medical evaluation was conducted by Dr. Sullivan. Dr. Sullivan ordered an MRI in

this case, which was done on August 31, 2017. (T. 467-69). In any event, the August 17, 2017 report

shows that a vascular evaluation prior to the 2018 evaluation was negative. This further supports the

finding that there was sufficient evidence in the record for the ALJ to make her determination.

As stated above, the record contains substantial evidence supporting the “grossly

normal” findings relied upon by the ALJ to give “little weight” to Dr. Cherukuri’s

MSS. Notwithstanding complaints of claudication, plaintiff’s gait has almost always

been considered normal. A review of Dr. Cherukuri’s narrative report shows that upon

physical examination, plaintiff’s cranial nerves were normal, his gait and station were

normal, the strength and tone of his upper and lower extremities were normal

bilaterally. (T. 792). Notwithstanding the “mild” ataxia on finger-to-nose testing on the

left side, the strength in one of his hand muscles was 4+/5, and the rest were 5/5. (Id.)

Heel-to-shin testing was “ok bilaterally.” (Id.) In his MSS, Dr. Cherukuri stated that

plaintiff would need a job that allowed him to alternate between sitting and standing “at

will.” (T. 1069). While the ALJ’s RFC did not have an “at will” requirement, she did

allow for shifting of positions every 30 minutes. (T. 111). The ALJ specifically

recognized plaintiff’s history of degenerative disc disease, carpal tunnel syndrome,

anemia, and 2017 stroke, which resulted in the limitation to a “reduced range of light

work,” including the limited handling and fingering and the ability to shift positions.

(T. 113). However, the ALJ ultimately stated that when considering the “relatively

normal findings on objective examination despite the claimant’s less than full

compliance with even routine and conservative treatment modalities, I find the record

does not support any greater limitations.” (Id.) The ALJ was entitled to consider the

conflicting evidence to give “little” weight to Dr. Cherukuri’s MSS.

Plaintiff argues that the ALJ erred in giving “partial weight” to Dr. Cole’s

February 8, 2016 consultative report and should not have given it any weight at all

“against the later medical records and opinions of Plaintiff’s physicians . . . .” (Pl.’s Br.

at 22-23). Plaintiff argues that Dr. Cole saw plaintiff only once, only two months after

his onset date, and 22 months prior to his stroke. (Pl.’s Br. at 23). Thus, Dr. Cole did

not have all the relevant information “against the later medical records and opinions of

Plaintiff’s physicians” to determine plaintiff’s condition. (Id.)

Dr. Cole’s examination of the plaintiff showed essentially “[n]o [physical]

restrictions based on today’s findings.” (T. 355). The report states that Dr. Cole did

review an X-ray of plaintiff’s lumbosacral spine, and conducted “strength testing.” (Id.)

All of Dr. Cole’s findings were normal. If the ALJ had relied solely on Dr. Cole’s

MSS, she would not have limited plaintiff to a “reduced range of light work.” Clearly,

the ALJ considered the other, later evidence of record, including as stated above, the

records of plaintiff’s examinations, showing additional limitations after his 2017 stroke.

Plaintiff is alleging a disability onset in December of 2015, and he did not have his

stroke until 2017. The ALJ was required to consider all the evidence of record before

and after plaintiff’s stroke, including Dr. Cole’s consultative opinion, and correctly

gave it only “partial” weight due to the plaintiff’s subsequently acquired limitations.

Although plaintiff argues that Dr. Cole’s MSS can “hardly be consistent with the

record,” because he did not consider severe limitations contained in reports that had not

been written at the time that he gave his opinion, the ALJ included many more

Cole’s February 2016 report, the ALJ considered other medical reports authored at the

same time as Dr. Cole’s examination. The ALJ cited plaintiff’s emergency room visit

in January of 2016, during which he complained of lower back pain. (T. 113) (citing T.

833-47). This report indicates that plaintiff’s neurological examination was normal and

his sensation was normal. (T. 838). There was full range of motion in all extremities.

(T. 839). He had mild, diffuse tenderness in his lower, spine, but the findings were

otherwise normal. (T. 838).

The ALJ cited another emergency room visit in September of 2016, in which

plaintiff complained of bilateral paresthesias in his hands, but the results of the

examination were normal, including full range of motion, normal sensation, and normal

motor strength. (T. 113) (citing T. 887, 890, 899). The ALJ cited treatment records

from plaintiff’s former treating internist Dr. Vecchio, dated January 2017, which cited

complaints of lower intermittent back pain and extremity pain. (T. 113) (citing T. 512-

13). Dr. Vecchio found no point tenderness of plaintiff’s back, “slightly” decreased AP

flexion, and a normal gait. (T. 513).

The ALJ also reviewed evidence from examinations of September of 2017,

February 2018, April 2018, May 2018, and June of 2018, all of which found normal or

slightly diminished functional abilities with respect to plaintiff’s back, his legs, and his

hands/wrists. (T. 1169, 499, 798, 786, 1188). Dr. Cole’s 2016 MSS was also consistent

with records dated February 24, 2017 and June 21, 2017 from Dr. Vecchio. In February

of 2017, Dr. Vecchio stated that plaintiff complained of depression, but found

Tinel’s sign over the medial nerve bilaterally, he had full range of motion in his hands

and fingers and full strength in both hands. (T. 507-508). In June of 2017, Dr. Vecchio

stated that plaintiff came to the office complaining of leg cramps. However, the

physical examination of his back was normal, and his gait was normal. (T. 504-505).

During the September 29, 2017 examination by NP Burgess, she stated that

plaintiff had mild to moderate disc degeneration at L5/S1, with a central bulge, but no

significant stenosis. (T. 1169). Plaintiff complained of cramping in his legs, but at that

time, a vascular work-up had been negative. (Id.) NP Burgess stated that plaintiff was

not a candidate for disc fusion because he smoked, and she told plaintiff to quit

smoking because it made his pain “10x worse.” (T. 1169). She also noted that the back

pain was “intermittent and he does not meet radiographic criteria at this point.” (Id.)

All the records cited by the ALJ are consistent with Dr. Cole’s evaluation and

consistent with the ALJ’s analysis. While plaintiff may have had some additional

limitations due to the stroke, the ALJ was entitled to evaluate plaintiff’s condition prior

to the stroke, and limited her reliance on Dr. Cole’s findings accordingly by giving his

report only “partial weight.” Thus, plaintiff’s argument that Dr. Cole should have been

given “no” weight because it was inconsistent with evidence of plaintiff’s condition

after the stroke cannot succeed, and there was substantial evidence in the record,

justifying the weight that the ALJ gave to Dr. Cole’s findings.

There is further support for the ALJ’s analysis in the record. The court notes that

in Dr. Vecchio’s February 12, 2018 treatment note (post-stroke), she stated that she

(T. 498). Plaintiff was belligerent and refused a caseworker. Dr. Vecchio believed that

plaintiff was not taking his medications properly. Plaintiff was argumentative, and

arrogant, refusing to bring his medicine bottles for the doctor to examine. (T. 499). He

was annoyed that he had to come in for more blood tests.22 (Id.) Plaintiff denied any

difficulty with his balance, and denied dizziness or fainting. A physical examination of

his back showed full range of motion, “a normal spine exam,” no cyanosis23 or edema

of the extremities, strong pedal pulses, and normal gait. (Id.) While there is no question

that plaintiff has limitations, the ALJ’s analysis of the record evidence, including the

medical reports is supported by substantial evidence.

VII. EVALUATION OF SYMPTOMS

A. Legal Standards

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

take the plaintiff’s reports of pain and other symptoms into account. Genier v. Astrue,

606 F.3d 46, 49 (2d Cir. 2010). The ALJ must “‘carefully consider’” all the evidence

presented by claimants regarding their symptoms, which fall into seven relevant factors

including ‘daily activities’ and the ‘location, duration, frequency, and intensity of

21 A Protime (Prothrombin Time) Test “measures how long it takes for a clot to form in a blood

sample.” It also checks to see whether a medication that helps prevent blood from clotting is working

properly. https://medlineplus.gov/lab-tests/prothrombin-time-test-and-inr-ptinr/

22 Plaintiff testified that one of the reasons that he switched treating providers was that he did

not like being called into the office for frequent blood tests. (T. 42-43).

23 “Cyanosis is a bluish color of mucous membranes and/or skin,” which is most often due to

increased amounts of unoxygenated hemoglobin in the vasculature.” https://www.ncbi.nlm.nih.gov/

books/NBK367/.

2019 WL 667743, at *9 (S.D.N.Y. Feb. 19, 2019) (citing 20 C.F.R. § 404.1529(c)(3);

Social Security Ruling (SSR) 16-3p, Titles II and XVI: Evaluation of Symptoms in

Disability Claims, 81 FR 14166-01 at 14169-70, 2016 WL 1020935 (Mar. 16, 2016)).

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

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

81 FR at 14167. Instead, symptom evaluation tracks the language of the regulations.24

The evaluation of symptoms involves a two-step process. First, the ALJ must

determine, based upon the objective medical evidence, whether the medical

impairments “could reasonably be expected to produce the pain or other symptoms

alleged . . . .” 20 C.F.R. §§ 404.1529(a), (b); 416.929(a), (b).

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

claimant’s] alleged functional limitations and restrictions due to pain or other

symptoms can reasonably be accepted as consistent with the [objective medical

evidence] and other evidence to decide how [the claimant’s] symptoms affect [her]

ability to work.’” Barry v. Colvin, 606 F. App’x 621, 623 (2d Cir. 2015) (citing inter

alia 20 C.F.R. § 404.1529(a); Genier v. Astrue, 606 F.3d at 49) (alterations in

original).25 If the objective medical evidence does not substantiate the claimant’s

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

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

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

remain consistent with the terms as used by the Commissioner.

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

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

The 2016 ruling has removed the emphasis on “credibility.”

71, 76 (2d Cir. 2013) (citing superceded SSR 96-7p). The ALJ must assess the

claimant’s subjective complaints by considering the record in light of the following

symptom-related factors: (1) claimant’s daily activities; (2) location, duration,

frequency, and intensity of claimant’s symptoms; (3) precipitating and aggravating

factors; (4) type, dosage, effectiveness, and side effects of any medication taken to

relieve symptoms; (5) other treatment received to relieve symptoms; (6) any measures

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

claimant’s functional limitations and restrictions due to symptoms. 20 C.F.R. §§

404.1529(c)(3), 416.929(c)(3).

The ALJ must provide specific reasons for the determination. Cichocki v. Astrue,

534 F. App’x at 76. However, the failure to specifically reference a particular relevant

factor does not undermine the ALJ’s assessment as long as there is substantial evidence

supporting the determination. Id. See also Del Carmen Fernandez v. Berryhill, 2019

WL 667743 at *11 (citing Rousey v. Comm’r of Soc. Sec., 285 F. Supp. 3d 723, 744

(S.D.N.Y. 2018)). “[R]emand is not required where ‘the evidence of record allows the

court to glean the rationale of an ALJ’s decision.’” Cichocki v. Astru, 534 F. App’x at

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

B. Application

Plaintiff argues that the ALJ did not properly analyze his complaints of pain and

failed to provide a sufficient explanation of why his claims were “not entirely

consistent with the medical evidence.” (Pl.’s Br. at 24-25). This court disagrees. The

stated that based on her subsequent analysis, the plaintiff’s allegations were

inconsistent with the medical evidence. (T. 112-15).

For example, the ALJ noted plaintiff’s history of degenerative disc disease,

carpal tunnel syndrome, hypertension, anemia, and stroke. (T. 113). The ALJ found

that these conditions would limit the plaintiff’s RFC to a “reduced” range of light work,

but “when considering the relatively normal findings on objective examination despite

the claimants less than full compliance with even routine and conservative treatment

modalities, . . . the record does not support any greater limitations.” (T. 113). The rest

of the ALJ’s discussion focused on the medical evidence, including normal examination

results despite plaintiff’s complaints, and plaintiff’s statements to his physicians. (T.

113). The ALJ noted that during the consultative examination by Dr. Cole, plaintiff

endorsed a history of back pain since 2010, but reported that he had not received any

treatment and had been able to continue working until he was laid off for lack of

business, not because of his medical condition. (T. 113).

The ALJ later noted that NP Burgess advised him to stop smoking in September

2017 because smoking made his pain much worse. (Id.) The ALJ also noted that

plaintiff was discharged from physical therapy for non-compliance. (T. 113) (citing T.

1157-67). The discharge followed plaintiff’s failure to attend several appointments.

(Id.) The ALJ’s analysis also included the inconsistencies in plaintiff’s claims of

mental impairments, which are not being challenged herein. Although not specifically

citing them as “Burgess” factors, the ALJ covered most of the factors listed in Burgess

In addition, a review of the record shows that even if the ALJ failed to mention a

specific Burgess factor, her finding is supported by substantial evidence. The court’s

review of the evidence shows that in the medical reports, plaintiff often denied the

symptoms that he is claiming affect his ability to work. Prior to plaintiff’s stroke, he

was referred to a hematologist, Dr. Marima Ramovic Zobic, M.D. because his

hematocrit26 was elevated. (T. 491-93). During this May 15, 2017 examination, the

plaintiff reported that he had no weakness or fainting spells, and informed the doctor

that he had broken his wrist in a bar fight shortly prior to the examination.27 (T. 491).

His blood test was normal, and the doctor stated that plaintiff’s levels were possibly

elevated due to dehydration, to which plaintiff replied that it “must have been after a

night of drinking.” (T. 493). His physical examination showed that his wrist was

healing, his cranial nerves were intact, he had normal muscle tone and power, and his

sensory examination was also normal. (T. 492).

At the ALJ’s hearing, plaintiff complained of urinary frequency and fecal

problems after his stroke, but there are no complaints of such problems in a report

written by Amishi Desai, M.D., dated January 29, 2018, to whom plaintiff was referred

26 “A hematocrit . . . test measures the proportion of red blood cells in your blood. Red blood

cells carry oxygen throughout your body. Having too few or too many red blood cells can be a sign of

certain diseases.” https://www.mayoclinic.org/tests-procedures/hematocrit/about/pac-20384728

27 There are emergency room records, dated May 12, 2017, in which the provider stated that

plaintiff was “currently intoxicated,” was very vague, but “after much coaxing,” he reported that he had

punched someone earlier that day. (T. 1051). Notwithstanding this incident, an examination revealed

no numbness, tingling, or weakness, and his sensation and motor examinations were normal. (T. 1056).

The x-rays revealed a metacarpal fracture, he was given a splint, and sent home. (T. 1063).

89). The court notes that, even in Dr. Cherukuri’s restrictive MSS, he failed to circle

“Bladder Problems” as one of plaintiff’s current symptoms. (T. 1068). Although not

specifically listing each factor in the regulation by number, the ALJ covered all the

appropriate reasons that plaintiff’s allegations were not inconsistent with the medical

evidence. Thus the ALJ’s analysis of plaintiff’s symptoms is supported by substantial

evidence.

VIII. Step Five Determination

A. Legal Standards

If the ALJ utilizes a VE at the hearing, generally, the VE is asked a

hypothetical question that incorporates plaintiff’s limitations. Although the ALJ is

initially responsible for determining the claimant’s capabilities based on all the

evidence, see Dumas v. Schweiker, 712 F.2d 1545, 1554 n.4 (2d Cir. 1983), a

hypothetical question that does not present the full extent of a claimant’s impairments

cannot provide a sound basis for vocational expert testimony. See De Leon v. Sec’y of

Health and Human Servs., 734 F.2d 930, 936 (2d Cir. 1984); Lugo v. Chater, 932 F.

Supp. 497, 503-04 (S.D.N.Y. 1996). The Second Circuit has stated that there must be

“substantial record evidence to support the assumption upon which the vocational

expert based [her] opinion.” Dumas, 712 F.2d at 1554. See also Peatman v. Astrue, No.

28 In fact, Dr. Desai’s review of symptoms indicates that plaintiff was not complaining of, inter

alia, diarrhea, urinary frequency, or urgency. (T. 480).

29 For the first time, plaintiff did report that he thought he fainted some days prior to the

examination, but he did not wish to go to the hospital. (T. 1186).

5:10-CV-307, 2012 WL 1758880, at *7 n.5 (D. Vt. May 16, 2012) (the hypothetical

question posed to the VE must accurately portray the plaintiff's physical and mental

impairments) (citations omitted); Green v. Astrue, No. 08 Civ. 8435, 2012 WL

1414294, at *18 (S.D.N.Y. April 24, 2012) (citing Dumas, 712 F.2d at 1553-54).

B. Application

Plaintiff argues that the ALJ’s step five determination is not supported by

substantial evidence because the VE was not asked a hypothetical question reflecting

the full extent of plaintiff's impairments. However, based on my findings above that

the ALJ’s RFC was supported by substantial evidence, the VE’s testimony was based

on the appropriate limitations, and the ALJ’s step five determination is supported by

substantial evidence.

WHEREFORE, based on the findings above, it is

ORDERED, that the Commissioner’s decision is AFFIRMED, and plaintiff's

complaint is DISMISSED, and it is further

ORDERED, that judgment be entered for the DEFENDANT.

Dated: November 24, 2020 | Zz

Andrew T. Baxter

U.S. Magistrate Judge

36