The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SHEILA G.,
Plaintiff,
V.
No. 5:19-CV-1298
a COMMISSIONER OF SOCIAL SECURITY, (CFH)
Defendant.
APPEARANCES: OF COUNSEL:
Law Offices of Steven R. Dolson STEVEN R. DOLSON, ESQ
126 North Salina Street, Suite 3B
Syracuse, New York, 13202
Attorney for plaintiff
Social Security Administration LUIS PERE, ESQ.
J.F.K. Federal Building
15 New Sudbury Street, Room 625
Boston, Massachusetts 02203
Attorney for defendant
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION AND ORDER'
Plaintiff Sheila G.* brings this action pursuant to 43 U.S.C. § 405(g) seeking
review of a decision by the Commissioner of Social Security (“the Commissioner”)
denying her application for disability insurance benefits. See Dkt. No. 1 (““Compl.”).
1 Parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. §
636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 72.2(b), and General Order 18. See Dkt. No. 7.
2 In accordance with guidance from the Committee on Court Administration and Case Management of
the Judicial Conference of the United States, which was adopted by the Northern District of New York in
2018 to better protect personal and medical information of non-governmental parties, this Memorandum-
Decision and Order will identify plaintiff by first name and last initial.
Plaintiff moves for reversal and remand for further administrative proceedings, see DKt.
No. 9, and the Commissioner cross moves for a judgment on the pleadings. See Dkt.
No. 11. For the following reasons, the Commissioner’s determination is affirmed.
Il. Background
o On June 29, 2016, plaintiff protectively filed a Title || application for disability
insurance benefits and a Title XVI application for supplemental security income. See T.
at 15; 139-142; 143-48.° In both applications, plaintiff alleged a disability onset date of
August 28, 2015. See id. at 139, 143. The Social Security Administration denied both
claims on September 27, 2016. See id. at 71. Plaintiff requested a hearing, see id. at
77-78, and a hearing was held on September 17, 2018, in Syracuse, New York, before
m| Administrative Law Judge (“ALJ”) Kenneth Theurer. See id. at 30-54. On October 5,
2018, the ALJ issued an unfavorable decision. See id. at 24. On September 23, 2019,
the Appeals Council denied plaintiff's request for review of the ALJ’s decision. See id.
at 1. Plaintiff commenced this action on October 21, 2019. See Compl.
ll. Applicable Law
A. Scope of Review
In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),
1388(c)(3); Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
3 followed by a number refers to the pages of the administrative transcript filed by the Commissioner.
See Dkt. No. 8. Citations refer to the pagination in the bottom right-hand corner of the administrative
transcript, not the pagination generated by CM/ECF.
1990). Rather, the Commissioner's determination will only be reversed if the correct
legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d 464,
467 (2d Cir. 1982). Substantial evidence is “more than a mere scintilla,” meaning that in
the record one can find “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)).
The substantial evidence standard is “a very deferential standard of review
....[This] means once an ALJ finds facts, we can reject [them] only if a reasonable
factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm'r, 683
F.3d 443, 448 (2d Cir. 2012) (internal quotations marks omitted). Where there is
| reasonable doubt as to whether the Commissioner applied the proper legal standards,
the decision should not be affirmed even though the ultimate conclusion is arguably
supported by substantial evidence. See Martone v. Apfel, 70 F. Supp. 2d 145, 148
(N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986). However, if the correct legal
standards were applied and the ALJ’s finding is supported by substantial evidence, suc
finding must be sustained “even where substantial evidence may support the plaintiff's
| position and despite that the court’s independent analysis of the evidence may differ
from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992)
(citation omitted).
B. Determination of Disability
“Every individual who is under a disability shall be entitled to a disability . . .
benefit... .” 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected to last for a continuous
period of not less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable
impairment is an affliction that is so severe that it renders an individual unable to
continue with his or her previous work or any other employment that may be available to
him or her based upon age, education, and work experience. See id. § 423(d)(2)(A).
Such an impairment must be supported by “medically acceptable clinical and laboratory
diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is
“based on objective medical facts, diagnoses[,] or medical opinions inferable from [the]
facts, subjective complaints of pain or disability, and educational background, age, and
work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3
(S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
1983)).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. §
404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers
whether the claimant has a “severe impairment” which
significantly limits his [or her] physical or mental ability to do
basic work activities.
If the claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has
an impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner] will consider him [or her] disabled without
considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a
claimant who is afflicted with a “listed” impairment is unable
to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant's severe
impairment, he [or she] has the residual functional capacity
5 to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past
work, the [Commissioner] then determines whether there is
other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (spacing added). “If at any step a
finding of disability or non-disability can be made, the SSA will not review the claim
further.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003). The plaintiff bears the initial
burden of proof to establish each of the first four steps. See DeChirico v. Callahan, 134
I
F.3d 1177, 1180 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses
to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still
able to engage in gainful employment somewhere. ld. (citing Berry, 675 F.2d at 467).
lll. The ALJ’s Decision
Applying the five-step disability sequential evaluation, the ALJ first determined
that plaintiff had not engaged in substantial gainful activity since August 28, 2015, the
alleged disability onset date. See T. at 17. At step two, the ALJ found that plaintiff had
the following severe impairments: “a right hip impairment, a bilateral knee impairment,
history of surgery to the right rib cage[,] and obesity.” Id. At step three, the ALJ
determined that plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. See id. at 19. Before reaching step four, the ALJ
concluded that plaintiff retained the residual functional capacity (“RFC”) “to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except she is unable to climb
ladders/ropes/scaffolds, kneel or crawl; and she can only perform other postural
activities occasionally.” Id. At step four, the ALJ determined that plaintiff is capable of
o performing past relevant work as a food services manager, as that “work does not
require the performance of work-related activities precluded by [her RFC].” Id. at 22.
Thus, the ALJ determined that plaintiff had not been under a disability, as defined in the
Social Security Act, since the alleged disability onset date. See id. at 24.
IV. The Parties’ Arguments‘
Plaintiffs sole argument is that the ALU committed reversable error by failing to
apply the treating physician rule in affording “little weight” to the medical opinion of Dr.
Elizabeth Reddy (“Dr. Ready”),° a physician in the Immune Health Services Hospital at
Upstate University Health System (“Upstate”). Dkt. No. 9 at 5 (quoting T. at 21). In
particular, plaintiff avers that the ALJ did not provide good reasons for affording less
than full weight to her opinion, and that the ALJ committed procedural error by failing to
| consider the factors set forth in Burgess v. Astrue (537 F.3d 117 (2d Cir. 2008). See id.
7-9. Moreover, relying on Green-Younger v. Barnhart (335 F.3d 99 (2d Cir. 2003)),
plaintiff asserts that the ALJ erred in discounting Dr. Reddy’s opinion on the basis that
4 The Court's citations to the parties’ briefs refer to the pagination generated by CM/ECF at the headers
of the page, not to the pagination of the individual documents.
5 As the Commissioner points out, Dr. Ready’s full last name is actually “Asiago-Reddy.” Dkt. No. 11 at 3
n. 1; T. at 292. However, as the Commissioner acknowledged, because both the ALJ and plaintiff refer to
her as “Dr. Reddy,” and for the sake of consistency, the undersigned will do so as well.
she did not cite to any clinical findings or diagnostic testing records in support of her
opinion, because “an opinion from a treating physician need not be based upon
objective medical evidence, but can be based at least in part on subjective complaints.”
Dkt. No. 9 at 9.
The Commissioner argues that the treating physician rule does not apply to Dr.
o Reddy’s opinion, and that the ALJ properly afforded her opinion little weight. See Dkt.
No. 11 at 3. In particular, the Commissioner avers that “Dr. Reddy saw plaintiff only
twice in the span of more than a year—first in January 2016 and then in April 2017—
before completing her opinion” and, therefore, is not a treating physician. Dkt. No. 11 at
3 (citing T. 292-94, 410-13). Further, the Commissioner contends that the ALJ’s
decision to afford Dr. Reddy’s opinion little weight is supported by substantial evidence,
including the opinion of state consultative examiner, Kalyani Ganesh, M.D. (“Dr.
Ganesh’), and plaintiffs medical records. See 4-8. The Commissioner also asserts
that the ALJ correctly considered that Dr. Reddy did not cite any objective medical
evidence in support of the “extreme limitations” contained in her opinion, and that
plaintiff's reliance on Green-Younger is misplaced. See id. at 6. Alternatively, the
Commissioner argues, even assuming arguendo that Dr. Reddy could be considered a
| treating source, the ALJ provided good reasons for affording her opinion little weight
despite failing to explicitly consider the Burgess factors. See id. at 9 n. 7.
V. Relevant Opinion Evidence
1. Dr. Reddy and Nurse Practitioner Bartlett
A July 31, 2017 evaluation of physical work limitations co-signed by nurse
practitioner Linda Bartlett (“Bartlett”), a nurse practitioner at Upstate, and Dr. Reddy,
diagnosed plaintiff with “[c]hronic kidney disease, chronic pain, w/o spleen injury/liver
injury HIV + back + leg/hip s/p injury (MVA) R rib pain,” and provided the following
prognosis: “chronic illness.” T. at 403. This evaluation covered plaintiffs treatment at
o Upstate between “12/2/15” and “8/7/17.” Id. Bartlett and Dr. Reddy opined as to
plaintiff's postural limitations, indicating that plaintiff could “[nJever” climb, balance,
stoop, crouch, kneel, or crawl; but could “[o]cassionally (2-3 hrs/day)” climb stairs,
reach, push, and pull. Id. Bartlett and Dr. Reddy opined as to the following exertional
limitations: “Continuous standing[:] No—can stand 20-25 minutes at a time”; “Total
standing during 8-hour day[:] two hours”; “Continuous walking[:] No”; “Total walking
m| during 8-hour day[:] can walk a few minutes (<5 minutes) at a time then needs to rest”;
“Continuous sitting[:] “prolonged sitting produces pain’; “Total sitting during 8-hour day[:]
“4-2 hours at a time then needs to reposition.” Id. at 404. Bartlett and Dr. Reddy also
opined that plaintiff would be absent from work because of her “impairments or
treatment,” on average, “[mJore than four days per month.” Id. Moreover, Bartlett and
Dr. Reddy opined that, “during a typical workday,” plaintiff's “pain or other symptoms”
would be “severe enough to [constantly] interfere with attention and concentration
needed to perform even simple tasks,” and added that “patient states her pain is
‘constant.” Id. In addition, Bartlett and Dr. Reddy stated that plaintiff “[s]hould” use a
cane with “occasional walking/standing.” Id. at 405. Finally, Bartlett and Dr. Reddy
opined that, if plaintiff was employed, they would “recommend limiting the number of
hours per day or days per week [that she] should work,” and provided that plaintiff
“would find it difficult in most settings to work in light of her constant pain.” Id.
2. Dr. Ganesh
Dr. Ganesh examined plaintiff on September 12, 2016, and provided the
o following medical source statement: “No gross physical limitations noted.” T. at 363. A
relevant here, Dr. Ganesh’s orthopedic examination notes state that plaintiff explained
that “she was told that she has arthritis in the right hip. She said they gave her a
cortisone injection about a month ago, which has helped. Before that, it was a constant
aching pain. At this time, it seems to be better.” Id. at 361. Dr. Ganesh also observed
that plaintiff “presents with a cane, which was given to her by her mother just today[,]”
stated that the cane “does not appear necessary.” Id. at 361, 362. Dr. Ganesh
noted that plaintiff is able to “cook, clean, shop, child care, shower, and dress,” and that
plaintiff “[nJeeded no help changing for the exam or getting on and off [the] exam table”
and was “[a]ble to rise from chair without difficulty.” Id. at 361, 362. Dr. Ganesh also
noted that plaintiff “appeared to be in no acute distress[,]” had a “normal” gait and
station, could walk on her heels and toes, but could not squat. Id. Further, Dr. Ganesh
| found that plaintiff had full flexion, extension and rotary movements bilaterally in her
cervical, thoracic, and lumbar spines, as well as full range of motion (“ROM”) and full
strength (5/5) in her upper and lower extremities. See id. at 362, 363. Moreover, as
relevant here, Dr. Ganesh provided the following diagnosis: “[a]rthritis right hip.” Id. at
363.
3. Dr. Noia
Dr. Noia, a state psychologist, also examined plaintiff on September 12, 2016,
and diagnoses her with “[u]nspecified depressive disorder.” T. at 359. As relevant
here, Dr. Noia opined that plaintiff had no limitations in “understanding and following
simple instructions and directions’; “performing simple” or “complex tasks”; ability to
attend to a routine and maintain a schedule”; “ability to learn new tasks”; “make
appropriate decisions’; “her ability to deal with stress with medication”; and that plaintiff
“appears to be able to relate to and interact well with others”; and “appears to be
intellectually capable of managing money.” Id. at 358-59. Dr. Noia further opined that
plaintiff “appears to have mild limitations maintaining attention and concentration for
tasks,” but indicated that “the examination appears to be consistent with psychiatric
problems, [the] symptoms [of which] are controlled with medication.” Id. at 359.
Therefore, Dr. Noia “recommended that [plaintiff] continue with pharmacological
treatment as currently provided.” Id.
VI. Analysis
1. Dr. Reddy Was Not a “Treating Source”
The Court first concludes that the treating physician rule does not apply to Dr.
Reddy's opinion. See T. at 21; Dkt. No. 11 at 3. The regulations provide, in relevant
part, that a
Treating source means your own acceptable medical source
who provides you, or has provided you, with medical
treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you. Generally, we will consider
that you have an ongoing treatment relationship with an
acceptable medical source when the medical evidence
10
establishes that you see, or have seen, the source with a
frequency consistent with accepted medical practice for the
type of treatment and/or evaluation required for your medical
condition(s). We may consider an acceptable medical
source who has treated or evaluated you only a few times or
only after long intervals (e.g., twice a year) to be your
treating source if the nature and frequency of the treatment
or evaluation is typical for your condition(s).
5 20 C.F.R. § 404.1527(a)(2). “[A] treating source’s opinion on the issue(s) of the nature
and severity of [a claimant’s] impairment(s)’ is given ‘controlling weight’ if the opinion is
‘well supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the] case record.” Petrie
v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011) (summary order) (quoting 20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2)). The Second Circuit has explained that, “the opinion of
a treating physician is given extra weight because of h[er] unique position resulting from
I
the “continuity of treatment [s]he provides and the doctor/patient relationship [s]he
develops.” Petrie, 412 F. App’x at 405 (quoting Mongeur v. Heckler, 722 F.2d 1033,
1039 n. 2 (2d Cir. 1983) (emphasis added)). However, a treating source’s opinion will
not be afforded controlling weight if “the treating physician issued opinions that are not
consistent with other substantial evidence in the record, such as the opinions of other
medical experts.” Holloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curium).
tr!
“The report of a consultative physician may constitute such substantial evidence.”
Petrie v. Astrue, 412 F. App’x 401, 405 (citation omitted); see Frey ex rel. A.O. v.
Astrue, 485 F. App’x 484, 487 (2d Cir. 2012) (summary order) (“The report of a State
agency medical consultant constitutes expert opinion evidence which can be given
weight if supported by medical evidence in the record.”); Little v. Colvin, No. 5:14-CV-
0063 (MAD), 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) (“State agency
11
physicians are qualified as experts in the evaluation of medical issues in disability
claims. As such, their opinions may constitute substantial evidence if they are
consistent with the record as a whole.”) (internal quotation marks omitted and citations).
In Petrie, the Second Circuit upheld the ALJ’s decision to give less than
controlling weight to the opinions of two physicians who provided treatment to the
° plaintiff, reasoning, as relevant here, that “one of the physicians . . . had only examined
[the plaintiff] once, while the [second] . . . had only four treatment notes bearing his
signature, two of which were merely co-signatures on reports by other providers”; and
both physician’s opinions “were contradicted by [the opinions] of several medical
experts[,]” including two consultative examiners whose opinions were consistent with
the plaintiff's medical records. Petrie, 412 F. App’x at 405, 406. The Second Circuit
xplained that “a physician who only examined a claimant ‘once or twice’ did not see
that claimant regularly and did not develop a physician/patient relationship with the
claimant, even though other practitioners in the same facility had also submitted medica
opinions on behalf of the claimant” and, therefore, the opinion of such a physician was
not entitled to the presumption of controlling weight under the treating physician rule.
Id. at 405 (quoting Mongeur, 722 F.2d at 1035, 1039 n. 2) (internal quotation marks and
| Citations omitted).
Here, as an initial matter, the document plaintiff refers to as Dr. Reddy's opinion
is co-signed—and appears to have been completed by—Bartlett. See T. at 403.
Indeed, the cover page of that document explicitly states: “FROM: Upstate University
Hospital-Linda Bartlett, NP.” Id. Although “medical source statements cosigned by a
treating physician should be evaluated as having been the treating physician's opinion,”
12
King v. Comm’r of Soc. Sec., 350 F. Supp. 3d 277, 282 (W.D.N.Y. 2018) (internal
quotation marks and citation omitted), as the Commissioner avers, Dr. Reddy was not
plaintiff's treating physician. See Dkt. No. 11 at 3. First, as the Commissioner
observes, Dr. Reddy examined plaintiff only twice over a period of approximately a year
and three months—once on January 4, 2016, and once more on April 11, 2017. See
| Dkt. No. 11 at 3 (citing T. at 292-94, 410-13). Further, as Dr. Reddy’s treatment notes
make clear, she saw plaintiff for routine follow-up observation for the primary purpose of
monitoring and assessing plaintiff's HIV and kidney issues—a service provided by
numerous other healthcare providers at Upstate between December 1, 2015, and
November 3, 2017, including Linda Bartlett, N.P.; Shraddha Ranna, M.B.B.S.; Dana
Bulger, M.A.; Zachary Jones, M.D.; and Valina G. Gosine, M.D. See T. 332, 292-91,
mj] 295-98, 299, 315, 410-11, 416-17, 426, 427. Indeed, Dr. Reddy’s January 4, 2016
progress note indicates that plaintiff's “Chief Complaint” was listed as “present[ing] with
HIV Positive/AIDS,” and that plaintiff's stated purpose of the visit was to follow up
regarding her kidney disease. Id. at 292. Dr. Reddy's April 11, 2017 progress note also
states that plaintiff was at Upstate for a “routine HIV clinic follow-up.” Id. at 410
(capitalization omitted).
Moreover, as the record makes clear, plaintiff attended more frequent follow-up
visits for her HIV and kidney disease than her two visits with Dr. Reddy—which
establishes that plaintiff's two visits with Dr. Reddy over a period of more than one year
were far less frequent than that “consistent with accepted medical practice for the type
of treatment and/or evaluation required for [plaintiff's] medical condition(s)’ of HIV and
kidney disease. 20 C.F.R. § 404.1527(a)(2). In particular, Dr. Reddy's January 4, 2016
13
treatment note provided that plaintiff was scheduled for a “[t]entative follow up with
[Upstate] in 4 months,” and plaintiff's treatment notes from Upstate indicate that, in fact,
she was seen for regular follow-up appointments for her HIV and kidney disease at
approximately two- to four-month intervals—which is much more frequent than her visits
with Dr. Reddy. See T. at 332 (Dec. 1, 2015), 292 (Dr. Reddy's Jan. 4, 2016 treatment
note: “chief complaint: patient presents with HIV Positive/AIDS”; “follow up with
nephrology”); id. at 300 (May 11, 2016 progress note authored by Dr. Gilbert at Upstate
regarding renal/HIV treatment); id. at 300 (May 12, 2016 Upstate Nephrology progress
notes Dr. Gilbert’s indicating that plaintiff was advised to return to Upstate at two-month
intervals for her renal issues, stating that, “[d]uring [plaintiff's] last visit 12/23/15, it was
recommended that she follow up in 2 months however in the interim, she has cancelled
rescheduled several appointments . . . .”); T. 308-312 (Aug. 2, 2016 Upstate
Nephrology progress note authored by Shraddha Rana, M.B.B.S. scheduling a return to
clinic in two months); id. at 375 (Oct. 25, 2016, Upstate Neprhology progress notes
authored by Shraddha Rana, M.B.B.S., scheduling return to return to clinic in three
months); id. at 387 (Feb. 14, 2017 Upstate Nephrology progress note authored by
Shraddha Rana, M.B.B.S, scheduling return visit in “4-5 months,”). Thus, as the record
| makes clear, Dr. Reddy treated plaintiff on only two occasions for follow-up visits
relating to her HIV/kidney disease—a frequency well below that which the
uncontroverted medical evidence indicates was customary for such treatment, and, as
discussed above, was also provided by numerous other healthcare professionals at
Upstate. Consequently, the Court concludes that Dr. Reddy was not a treating source
14
and that the ALJ did not commit error in declining to apply the treating physician rule in
deciding how much weight to afford her opinion. See Petrie, 412 F. App’x at 405, 406.
2. The ALJ’s Decision to Afford Little Weight to Dr. Reddy’s Opinion is Supported
by Substantial Evidence
5 As relevant here, the ALJ provided the following reasoning for affording little
weight to Dr. Reddy’s opinion:
First Dr. Reddy cited kidney issues and HIV in support of her
opinion. However, the record has indicated, and the
claimant concurs, that these issues do not significantly limit
her. Second, Dr. Reddy did not cite to any clinical findings
or diagnostic testing in the record. Third she did not explain
this opinion in light of the claimant’s very conservative
course of treatment.
T. at 20. As the ALJ noted, see id. at 21, plaintiff's progress notes from Upstate,
I
including both of Dr. Reddy’s notes, clearly indicate that plaintiff's HIV and kidney issue
are well controlled by treatment and medication. See T. 332 (Bartlett's Dec. 1, 2015
progress note: “Since initiating ART she has been very adherent to her medications and
has a consistently undetectable viral load”; “viral load was un-detected on 10/5/15”); id.
at 294 (Dr. Reddy’s Jan. 4, 2016 progress note: “HIV: On P| monotherapy, tolerating it
well.”); id. at 297-98 (Bartlett's April 7, 2016 progress note: “HIV: stable, on HAART, and
tr!
appears that she has remained adherent to therapy with her medications”; “Renal
disease: Managed by nephrology.”); id. at 299 (Theresa Feola, N.P.’s April 18, 2016
progress note: “HIV-1 RNA not detected 04/07/2016”); id. at 312 (Bartlett's Aug. 15,
2016 progress note: “HIV: stable, on HAART”); id. at 410 (“Dr. Reddy’s Apr. 11, 2017
progress note: “Her kidney function at last check was improved. She remained
virologically suppressed.”); id. at 417 (Dr. Jones Dec. 7, 2017 progress note indicating
15
that plaintiff's HIV and renal issues were stable with medication and treatment); id. at
426 (Valini Gosine, M.D.’s Sept. 1, 2017 progress note: “HIV well suppressed on
HAART.”). Further, plaintiff did not testify at the hearing before the ALJ, and does not
argue now, that her HIV or renal issues affect her ability to work and, instead, focuses
entirely on her hip and knee pain in that regard. See id. at 38-41. Moreover, although
o plaintiff's initial Upstate treatment note suggested that plaintiff's “[I]Jower extremity
swelling” was “[pJossibly renal related,” id. at 327, Bartlett’s April 7, 2016 treatment note
indicated, with respect to plaintiff's “[rlight Knee pain and swelling[,]’ the “[s]welling
appear[ed] to be more localized to her right knee and therefore less likely to be renal
etiology more ortho.” Id. at 298. However, it is undisputed that plaintiff never visited an
orthopedic physician concerning her leg pain, see Dkt. No. 9 at 7 (citing T. at 385
(medical record dated Jan. 19, 2017, authored by David Martin, M.D., stating that,
although plaintiff “[d]oes complaint of some increased leg pain,” she “[W]as never seen
by .. . [an] orthopedist for this.”). Moreover, the record makes clear that plaintiff was
placed on a conservative course of treatment for her pain that included pain medication
and a single hip injection, which, according to her medical records, alleviated her pain.
See T. 317, 394, 441. Plaintiff was also referred to physical therapy (“PT”) in February
| 2017, but was discharged in March 2017, after attending only her “initial evaluation” due
to “insurance problems,” and the record does not indicate that she ever returned to PT.
Id. at 399. In addition, to the extent that Bartlett and Dr. Reddy opined that plaintiff's
right hip and knee pain are the result an incident in 2015 in which her ex-boyfriend
purposefully hit her with a motor vehicle, the medical evidence of record does not
indicate that plaintiff suffered a hip and/or knee injuries as a result thereof. See id. at
16
287 (Dr. Martin’s Feb. 15, 2016 treatment note, explaining that plaintiff suffered a “right
thorax fracture,” “[l]Jaceration of her liver and spleen,” and injuries to her abdominal area
as a result of the 2015 motor vehicle incident).
Further, Dr. Reddy’s opinion as to the severity, persistence, and limiting effects o
plaintiff's symptoms, insofar as they can be read as relating to her hip/knee pain, is
contradicted by plaintiff's medical records—including Dr. Reddy’s two progress notes—
which indicate that plaintiffs pain and/or swelling was either improving or non-apparent.
See T. at 292, 410. In particular, at plaintiff's first visit with Bartlett at Upstate in
December 2015, Bartlett observed “[l]ower extremity swelling[.]” T. at 332. However,
Dr. Reddy’s Jan. 4, 2016 progress note, which listed plaintiff's “Chief Complaint” as
“Patient presents with HIV Positive/AIDS,” noted that plaintiff's “[I]Jeg swelling [had]
overall improved.” Id. at 292. Bartlett’s April 7, 2016 progress note stated that plaintiff
had “residual ortho pain, particular in her right Knee. Her bilateral leg swelling has
completely resolved except for some fluid around that knee.” Id. at 295. In May 2016,
plaintiff informed William Linksy, N.P. at Upstate that her “right leg hurt [and had been]
swollen,” for two days, but listed the “[s]everity” as “moderate.” Id. at 304. Moreover,
plaintiffs August 2, 2016 progress note authored by Shraddha Rana, M.B.B.S. indicated
| that plaintiff stated that “she plan[ned] to get a cortisone injection” in her right hip for
“pain which apparently has been ongoing for some time now,” id. at 308, and her
August 3, 2016 Upstate records establish that she received a “Right Hip Injection Under
Fluoroscopic Guidance.” Id. at 317. In addition, Bartlett’s August 15, 2016 progress
note stated that plaintiff's “[c]hronic right hip and right Knee pain” were “[mJanaged by
her” primary care physician and that she had “[rjecent[ly received a hip injection for
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pain.” Id. at 316. In addition, Dr. Ganesh’s September 12, 2016 physical exam findings
indicated that plaintiff informed Dr. Ganesh that the cortisone injection alleviated her
right hip pain. See id. at 361. Finally, Dr. Reddy's April 2017 progress note stated that
plaintiff had “no obvious swelling.” Id. at 410.
Moreover, the ALJ explicitly considered David Martin, M.D.’s (“Dr. Martin”)
° progress notes.® See id. at 21. In January 2017, Dr. Martin noted that plaintiff was
“[fleeling generally well,” but had “some increased leg pain”; that she was “walk[ing] with
a cane”; and that plaintiff's “[s]trength in right leg [wa]s approx. 3 out of 5” with “full ROM
with the leg but is stiff and causes some pain.” Id. at 385. Dr. Martin indicated that he
that he pain [wa]s more that likely coming from some low back issues” and
recommended physical therapy. Id. However, as with her Upstate records, Dr. Martin’s
m| records from October 2017 indicate improvement, stating that she “ha[d] 5+ strength in
bilateral lower extremities,” id. at 384 (Oct. 4, 2016), and that “visualization of the right
lower back and right hip d[id] not reveal any acute concerns[, as t]here [wa]s no
protrusions or deformities or anomalies[;] no redness . . . [; and] [s]he [wa]s not overly
tender on deep palpitation of the right lumbar spine, right iliac or in the right posterior
thigh.” Id. at 407 (Oct. 19, 2017). Furthermore, in July 2017, although plaintiff
| expressed “concern” to Dr. Martin that “her pain [wa]s starting to increase and extend
from her low back into her upper intergluteal folds,” “[s]he state[d] that she is doing very
well with the Tramadol’ but feels that an extra dosage once or twice a day might help
6 Neither plaintiff nor the record makes clear what Dr. Martin's treating relationship to plaintiff was.
? Tramadol is an oral “opioid analgesic,” which is “used to relieve moderate to moderately severe pain[.]”
Drugs and Supplements: Tramadol (Oral Route), MAYO CLINIC, https:/Awww.mayoclinic.org/drugs-
supplements/tramadol-oral-route/description/drg-20068050 (last visited Mar. 3, 2021).
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her,” and observed that plaintiff was able to “move[] all extremities well w/o any signs of
deficiencies.” Id. at 407. In addition, as the ALJ pointed out, see id. at 20, the portion o
Dr. Reddy’s opinion indicating that plaintiff requires the use of cane is not supported by
substantial evidence, and is directly contradicted by plaintiff's hearing testimony in
which she expressly stated that the cane she uses is “not” “prescribed by a doctor,” id.
at 47, and Dr. Ganesh’s exam findings which indicate that plaintiff's mother gave her the
cane on the day of the exam. See id. at 361-62. Indeed, as the ALJ observed, plaintiff
was prescribed a cane when she had a foot fracture in 2015, but the record is devoid of
evidence to establish that a cane was required for her right hip and/or Knee issues or
that use of the cane was necessary any time thereafter. See id. at 21, 284.
Further, Dr. Reddy's opinion, insofar as it indicates that plaintiff would be off task
m| “constantly” and absent “[mJore than four days per month” due to pain is contradicted by
plaintiffs medical records. Id. at 405. For instance, Dr. Martin's progress July 2017
indicate that plaintiff is doing “very well’ on her medication, id. at 407, and plaintiff's
Upstate records that indicate that plaintiff described her right leg pain as being
“moderate” in “[s]everity’—prior to receiving her right hip injection, id. at 304—which the
record indicates alleviated her right hip pain. See id. at 361. Dr. Reddy’s opinion in this
| regard is also contradicted by Dr. Noia’s opinion, which indicated only mild limitations in
plaintiff's ability to maintain attention and concentration for performing tasks, which were
controlled by medication. See id. at 358. Thus, a careful review of plaintiff's medical
records make clear that the pain plaintiff experienced in her right hip and knees
generally improved between 2015 and 2017 and/or was controlled through the use of
pain medication and a single cortisone injection.
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Finally, the Commissioner correctly contends that plaintiff's reliance on Green-
Younger for the proposition that the ALJ erred by considering that Dr. Reddy had not
relied on objective medical evidence in weighing her opinion is misplaced. See Dkt. No.
11 at 6-7. As the Commissioner aptly points out, plaintiff has misconstrued Green-
Younger, which held that “the ALJ erred by failing to give controlling weight to the
o treating physician’s opinion and effectively requireing objective evidence beyond the
clinical findings necessary for a diagnosis of fibromyalgia . . .[,]” reasoning that “there
are no objective tests which conclusively confirm [fibromyalgia].” 335 F.3d at 106, 108
(emphasis added). Unlike Green-Younger, plaintiff's alleged limitations are not
premised on a diagnosis of fibromyalgia; therefore, it was not error for the ALJ to afford
little weight to Dr. Reddy’s opinion concerning plaintiff's limitations—which were based
exclusively on plaintiffs subjective complaints. See T. at 403-05. In any event, as the
foregoing analysis makes clear, plaintiff's subjective complaints concerning the
persistence, intensity, and limiting effect of her pain are unsupported by her medical
records—which establish only generalized complaints of pain, including statements
such as, “[ml]y right leg is hurt and swollen,” and describe her pain as being at a
“[sleverity [level of] moderate,” T. at 304; show general improvement in pain and
Swelling between 2015 and 2017, see id. at 295, 322, 410; and evidence normal gait,
without any mention of functional limitations. See id. at 422.
An ALJ “is entitled to rely not only on what the record says, but also on what it
does not say.” Dawn P. v. Berryhill, No. 6:17-CV-1265 (DJS), 2019 WL 1024279, at *6
(N.D.N.Y. Mar. 4, 2019) (internal quotation marks and citation omitted). Indeed, “[iJt is
well established that the ALJ may properly consider the fact that treatment notes fail to
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reference functional limitations in evaluating the weight of medical opinions.” Id. Here,
the ALJ correctly considered the lack of functional limitations expressed in plaintiff's
medical records, including in her Upstate treatment notes and Dr. Martin’s progress
notes, as well as the absence of clinical testing or diagnostic testing, such as CT scan,
MRI, or x-rays, in concluding that the severe functional limitations opined to by Dr.
° Reddy were not supported by substantial record evidence. See T. at 21; Dawn P., 2019
WL 1024279, at “6. Consequently, the Court concludes that the ALJ properly
considered the lack of reference to functional limitations in plaintiff's treatment notes,
particularly given the absence of any objective evidence in support of Dr. Reddy's
opinion. See Dawn, 2019 WL 1024279, at *6 (holding that the ALJ’s properly
considered the absence of reference to functional limitations in plaintiff's treatment
m| notes was “particularly appropriate ... given. . . the lack of objective evidence to
support the limitations on [the plaintiff's] abilities” and the “absence of stated limitations
despite . . . extensive treatment of [the p]laintiff.”). Thus, as the Commissioner argues,
plaintiff's reliance on Green-Younger is misplaced, and the ALJ’s decision to afford her
opinion little weight is supported by substantial evidence, which the ALJ properly cited
and explained in reaching his conclusion as to the weight to be afforded to her opinion.
tri
Vil. Conclusion
WHEREFORE, for the reasons stated above, it is hereby:
ORDERED, that the Commissioner’s decision is AFFIRMED; and it is further
ORDERED, that plaintiff's motion (Dkt. No. 9) is DENIED and it is further
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ORDERED, that the Commissioner’s motion (Dkt. No. 11) is GRANTED; and it is
further
ORDERED, that the Clerk of the Court serve copies of this Memorandum-
Decision and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 17, 2021
Albany, New York
Christian F. Hummel
U.S. Magistrate Judge
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