# Rivers v. Kijakazi

> District Court, N.D. New York · August 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10313965

## Case

- **Court:** District Court, N.D. New York
- **Decided:** August 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10313965

## How later opinions describe it (automated extraction)

- affirming the ALJ’s finding that Listing 1.04 criteria were not met because “Plaintiff’s motor strength was consistently normal with no evidence of atrophy, as were her sensation and deep-tendon reflexes”
- noting that it was the plaintiff’s “burden to demonstrate that her disability met all of the specified medical criteria of a spinal disorder” and upholding the ALJ’s decision that the plaintiff’s impairments did not meet or equal Listing 1.04(A
- finding that Plaintiff failed to show she met Listing 1.04 where there was insufficient medical evidence to show that she met all of the criteria

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________

KRYSTAL R.,

Plaintiff,

v. 8:20-CV-0513
(ML)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.
_____________________________________________

APPEARANCES: OF COUNSEL:

SCHNEIDER & PALCSIK MARK A. SCHNEIDER, ESQ
Attorneys for Plaintiff .
57 Court Street
Plattsburgh, New York 12901

U.S. SOCIAL SECURITY ADMIN. CANDACE H. LAWRENCE, ESQ.
Counsel for Defendant
J.F.K. Federal Building, Room 625
15 New Sudbury Street
Boston, Massachusetts 02203

MIROSLAV LOVRIC, United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER
Plaintiff Krystal R. (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of a final decision of the Commissioner of Social Security (“Defendant” or
“Commissioner”) denying her application for Supplemental Security Income (“SSI”). (Dkt. No.
1.) This case has proceeded in accordance with General Order 18 of this Court which sets forth
the procedures to be followed when appealing a denial of Social Security benefits. Currently
before the Court are Plaintiff’s motion for judgment on the pleadings and Defendant’s motion for
judgment on the pleadings. (Dkt. Nos. 16, 19). For the reasons set forth below, Defendant’s
motion for judgment on the pleadings is granted and the Commissioner’s decision is affirmed.
I. PROCEDURAL HISTORY
On October 4, 2016, Plaintiff filed an application for SSI, alleging that she became
disabled on May 1, 2011 due to a back injury, depression, and anxiety. (Administrative

Transcript (“T.”) 167-173.) Her application was denied initially on January 26, 2017. (T. 90-
111.) Plaintiff requested a hearing and appeared without representation before Administrative
Law Judge (“ALJ”) Brian LeCours on October 29, 2018. (T. 35-44.) The ALJ advised Plaintiff
of her right to counsel and granted Plaintiff’s request for an adjournment to allow her to seek
legal representation. (T. 38.)
Plaintiff did not obtain legal representation but appeared at her rescheduled hearing on
February 8, 2019. (T. 46-89.) Plaintiff’s mother was also present, and the ALJ permitted her to
remain in the hearing room as “moral support.” (T. 48.) During the hearing, the ALJ heard
testimony from Plaintiff and from vocational expert (“VE”) Margaret Heck. (T. 54-87.) The

ALJ issued an unfavorable decision on March 8, 2019. (T. 7-29.) This became the
Commissioner’s final decision when the Appeals Council denied Plaintiff’s request for review on
April 17, 2020. (T. 1-6.)
II. GENERALLY APPLICABLE LAW
A. Scope of Review
In reviewing a final decision of the Commissioner, a court must determine whether the
correct legal standards were applied and whether substantial evidence supports the decision.
Featherly v. Astrue, 793 F. Supp. 2d 627, 630 (W.D.N.Y. 2011) (citations omitted); Rosado v.
Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985
2
(2d Cir. 1987)). A reviewing court may not affirm the ALJ’s decision if it reasonably doubts
whether the proper legal standards were applied, even if the decision appears to be supported by
substantial evidence. Johnson, 817 F.2d at 986.
A court’s factual review of the Commissioner’s final decision is limited to the
determination of whether there is substantial evidence in the record to support the decision. 42

U.S.C. § 405(g) (2015); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). To facilitate the
court’s review, an ALJ must set forth the crucial factors justifying his findings with sufficient
specificity to allow a court to determine whether substantial evidence supports the decision.
Roat v. Barnhart, 717 F. Supp. 2d 241, 248 (N.D.N.Y. 2010); see also Ferraris v. Heckler, 728
F.2d 582, 587 (2d Cir. 1984). “Substantial evidence has been defined as ‘such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” Williams ex rel.
Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be “more than a
mere scintilla” of evidence scattered throughout the administrative record. Featherly, 793 F.
Supp. 2d at 630; Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)).
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams, 859 F.2d at 258 (citations omitted). Where substantial evidence
supports the ALJ’s findings they must be sustained “even where substantial evidence may
support the plaintiff’s positions and despite that the court’s independent analysis of the evidence
may differ from the [ALJ’s].” Rosado, 805 F. Supp. at 153. In other words, a reviewing court
cannot substitute its interpretation of the administrative record for that of the Commissioner if
3
the record contains substantial support for the ALJ’s decision. Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982).
B. Standard for Benefits1
To be considered disabled, a plaintiff-claimant seeking benefits must establish that he or
she is “unable to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. § 1382c(a)(3)(A) (2015). In addition, the plaintiff-claimant’s
physical or mental impairment or impairments [must be] of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists
in the national economy, regardless of whether such work exists in
the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied
for work.

Id. § 1382c(a)(3)(B).
Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a)), the Social
Security Administration (“SSA”) promulgated regulations establishing a five-step sequential
evaluation process to determine disability. 20 C.F.R. § 416.920(a)(4) (2015). Under that five-
step sequential evaluation process, the decision-maker determines:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a “residual functional capacity”

1 The requirements for establishing disability under Title XVI, 42 U.S.C. § 1382c(a)(3)
and Title II, 42 U.S.C. § 423(d), are identical, so that “decisions under these sections are cited
interchangeably.” Donato v. Sec’y of Health and Human Servs., 721 F.2d 414, 418 n.3 (2d Cir.
1983) (citation omitted).
4
assessment, whether the claimant can perform any of his or her
past relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that the
claimant can perform given the claimant’s residual functional
capacity, age, education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or
non-disability can be made, the SSA will not review the claim further.” Barnhart v. Thomas,
540 U.S. 20, 24 (2003).
III. FACTS
As of the date of the ALJ’s decision, Plaintiff was 27 years old. (T. 59.) She was a high
school graduate who attended one semester of college. (T. 59, 299.) At her February 6, 2019
hearing, Plaintiff testified that she resides with her two children, who were three years old and
ten months old. (T. 58-59.) Her father and other family members visited regularly to assist with
childcare and household tasks. (T. 59.) Plaintiff had a limited employment history that included
short-term positions as a hotel housekeeper and an aide at a retirement home. (T. 60-61, 211.)
Plaintiff injured her back in a car accident when she was sixteen years old and was
treated with opiate pain medication. (T. 1059.) She aggravated her back injury in 2010 while
working in the retirement home and again in a January 2017 motor vehicle accident. (T. 1207,
1277.) She underwent back surgery in 2016, but reported increased sciatica pain following the
procedure. (T. 81, 803, 1253.) Plaintiff testified that her physical impairments prevented her
from sitting or standing in one position for an extended period and made it difficult for her to lift
her youngest child. (T. 58-59, 62, 77-78.)
Over the course of treatment for her back pain, Plaintiff developed a dependence on
opiates, and began methadone treatment and outpatient drug rehabilitation in 2014. (T. 288,
1207.) She testified that she was clean and sober for the past three years. (T. 63.) Her treatment
5
status reduced her options for pain medication. (T. 67.) She also received counseling for anxiety,
and reported panic attacks in large crowds or when she felt like she was “being put on the spot.”
(T. 72-73, 1248-1249.)
The record includes Plaintiff’s treatment history. Rather than summarizing the records at
the outset, I will refer to the pertinent records during my discussion of Plaintiff’s arguments.

IV. THE ALJ’S DECISION
After finding that Plaintiff did not engage in substantial gainful activity (“SGA”) after her
application date of October 4, 2016, the ALJ found that Plaintiff had the following severe
impairments: “degenerative disc disease, status post 2016 lumbar surgery, asthma, depressive
disorder, anxiety and substance addiction disorders.” (T. 12.) At step three of the evaluation,
the ALJ found that Plaintiff’s impairments either singly or in combination did not meet or
medically equal the severity of a listed impairment. (T. 12-14.) In reaching this conclusion, the
ALJ reviewed Listing 1.00 (musculoskeletal disorders), Listing 3.00 (respiratory disorders), and
Listing 12.00 (mental disorders). (Id.)

Next, the ALJ found that Plaintiff could perform less than the full range of sedentary
work. (T. 14.) Specifically, the ALJ found that Plaintiff could occasionally operate pedal
controls; could occasionally balance, stoop, kneel, crouch and climb ramps and stairs, but is
never able to crawl or to climb ladders, ropes, and scaffolds; must avoid more than occasional
exposure to pulmonary irritants such as strong fumes, odors, dust, and gases; and was limited to
work consisting of unskilled tasks that required little or no judgment to do simple duties that can
be learned on the job in a short period of time. (Id.)
In making the RFC determination, the ALJ stated that he considered all of Plaintiff’s
symptoms, and the extent to which those symptoms could “reasonably be accepted as consistent
6
with the objective medical evidence and other evidence, based on the requirements of 20 C.F.R.
20 C.F.R. 416.929” and Social Security Ruling (“SSR”) 16-3p. (Id.) The ALJ further stated that
he considered opinion evidence and prior administrative medical findings in accordance with 20
C.F.R. § 416.927. (Id.) The ALJ also considered Plaintiff’s subjective complaints regarding
pain, symptoms, and functional limitations raised during the hearing and in the overall

administrative record. (T. 14-17).
At step four, the ALJ determined that Plaintiff had no past relevant work. (T. 23.)
However, based upon the RFC and the testimony of VE Heck, the ALJ determined that there
were jobs existing in significant numbers in the national economy that Plaintiff could perform.
(T. 23-24.) Accordingly, the ALJ found that Plaintiff was not disabled from the application date
through the date of his decision. (T. 24-25).
V. ISSUES IN CONTENTION
Plaintiff raises the following arguments in support of her position that the ALJ’s decision
is not supported by substantial evidence:

1. The ALJ failed to fully develop the record and denied Plaintiff a full and fair
hearing. (Dkt. No. 16 at 21-28.)

2. The ALJ erred by not finding that Plaintiff’s spinal impairment met or medically
equaled Listing 1.04 (Dkt. No. 16 at 19-20.)

3. The ALJ erred in his assessment of the medical and testimonial evidence. (Dkt.
No. 16 at 24-33.)

Defendant contends that the ALJ’s decision is supported by substantial evidence. (Dkt. No. 19 at
13-33). For the following reasons, this Court agrees with Defendant and will dismiss the
complaint.

7
VI. DEVELOPMENT OF RECORD/FULL AND FAIR HEARING
A. Legal Standards
“A claim of entitlement to social security benefits triggers Due Process Clause
protections.” Pokluda v. Colvin, No. 13-CV-0335, 2014 WL 1679801, at *3 (N.D.N.Y. Apr. 28,
2014) (citing Mathews v. Eldridge, 424 U.S. 319, 332-33 (1976)). Generally, due process

requires only that the proceedings in the context of an administrative social security hearing be
“full and fair.” Id. (citing Richardson, 402 U.S. at 401-02; Echevarria v. Sec’y of Health &
Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)).
1. Development of Record
An ALJ has an affirmative obligation to develop a claimant’s complete and accurate
medical record. “[T]he Commissioner of Social Security ... shall develop a complete medical
history of at least the preceding twelve months for any case in which a determination is made
that the individual is not under a disability.” 42 U.S.C. § 423(d)(5)(B); see also Perez v. Chater,
77 F.3d 41, 47 (2d Cir. 1996) (citation omitted) (noting that a “hearing on disability benefits is a

non-adversarial proceeding,” and as such, “the ALJ generally has an affirmative obligation to
develop the administrative record”). An ALJ’s failure to comply with this mandate is legal error.
Rose v. Comm’r of Soc. Sec., 202 F. Supp. 3d 231, 239 (E.D.N.Y. 2016). However, the ALJ’s
duty to develop the record is not unlimited and is discharged when the ALJ “possesses [the
claimant’s] complete medical history” and there are no “obvious gaps or inconsistencies” in the
record. Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (internal quotation marks omitted).
The duty to develop the record is “heightened” when a claimant “waives [her] right to
counsel and proceeds pro se.” Moran v. Astrue, 569 F.3d 108, 113 (2d Cir. 2009) (internal
quotation marks omitted). This is because the ALJ “must adequately protect” the rights of a pro
8
se claimant. Id. The ALJ’s heightened duty requires him to “scrupulously and conscientiously
probe into, inquire of, and explore for all the relevant facts.” Echevarria v. Sec’y of Health &
Human Servs., 685 F.2d 751, 755 (2d Cir. 1982); see also Morris v. Berryhill, 721 F. App’x 25,
27 (2d Cir. 2018) (summary order) (“When a disability benefits claimant appears pro se, the ALJ
must ‘ensur[e] that all of the relevant facts are sufficiently developed and considered.’”) (quoting

Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). On appeal, the district court must undertake a
“searching investigation of the record” to ensure that the rights of the pro se claimant were
protected. Cruz, 912 F.2d at 11. Moreover, where a claimant is pro se and alleging mental
impairments, courts have concluded that the ALJ bears a “doubly heightened” duty to develop
the record. Estrella o/b/o M.R.E. v. Berryhill, No. 15 CV 6966 (CS)(LMS), 2017 WL 2693722,
at *21 (S.D.N.Y. June 22, 2017) (citing Corporan v. Comm’r of Soc. Sec., No. 12-Civ-6704
(JPO)(SN), 2015 WL 321832, at *6 n.7 (S.D.N.Y. Jan. 23, 2015)).
2. Calling Witnesses
The general rule in Social Security proceedings is that “the presentation and questioning

of witnesses [is] permissible, not requisite.” Infante v. Apfel, 2001 WL 536930, at *9 n.7
(S.D.N.Y. May 21, 2001). There are circumstances when an ALJ's duty to develop the record
requires questioning witnesses. Lopez v. Sec'y of Health & Human Servs., 728 F.2d 148, 150-51
(2d Cir. 1984) (“We have remanded cases when it appears that the ALJ has failed to consider
relevant and probative evidence which is available to him.”) (citing Cutler v. Weinberger, 516
F.2d 1282, 1286 (2d Cir. 1975)).
In Lopez, for example, the Second Circuit found that an ALJ erred in refusing to hear the
testimony of a claimant’s friend where the claimant spoke little English. Id. at 150. The Second
Circuit reasoned that the friend—who the claimant described as “help[ing] [her] with everything
9
that [she] cannot do for [herself]”—“could have provided effective testimony about [the
claimant's] ability to function on a daily basis.” Id.; see also Regennitter v. Comm'r of Soc. Sec.
Admin., 166 F.3d 1294, 1298 (9th Cir. 1999) (“[T]estimony from lay witnesses who see the
claimant every day is of particular value.”); Collins v. Comm’r of Soc. Sec., 19-CV-1350 (LJV),
2020 WL 6488744, at *2-3 (W.D.N.Y. November 4, 2020) (finding that ALJ erred by denying

request for claimant’s partner to testify when plaintiff suffered from memory issues that
prevented her from providing detailed testimony about her medical history).
3. Right to Counsel
Although a claimant does not have a constitutional right to counsel at a Social Security
disability hearing, she does have a statutory and regulatory right to be represented should she
choose to obtain counsel. 42 U.S.C. § 406; 20 C.F.R. § 416.1505. The applicable statute and
regulations state that, when notifying a claimant of an adverse determination, the Commissioner
of Social Security must “notify [the] claimant in writing” of (1) her “options for obtaining [an]
attorney[ ] to represent [her]” at her hearing, and (2) “the availability ... of ... organizations which

provide legal services free of charge” to “qualifying claimants.” 42 U.S.C. §§ 406(c),
1383(d)(2)(D); see also 20 C.F.R. § 416.1506; see also Drake v. Comm’r of Soc. Sec., No. 8:08-
CV-1007, 2010 WL 11526780, at *4-5 (N.D.N.Y. Dec. 20, 2010). If properly informed of this
right, a claimant may waive it. Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507-508 (2d Cir.
2009).
B. Application
1. Development of Record
In this case, the ALJ met his heightened obligation to develop the record on behalf of the
Plaintiff, who was unrepresented at the time of the hearing. At the commencement of the
10
February 6, 2019 hearing, the ALJ inquired whether Plaintiff had an opportunity to review the
administrative record in advance. (T. 51.) Upon learning that Plaintiff may not have received the
most recently updated version of the record and had only reviewed an earlier version, the ALJ
ordered that an additional copy be sent to Plaintiff’s address, and gave her one week from receipt
to raise any objections or concerns. (T. 51-52.) The ALJ then summarized the full contents of

the administrative record, and explained again the process for objecting to the record. (T. 52-54.)
Following the ALJ’s summary, Plaintiff reported that she had seen her pain management
specialist, Dr. Thierry Bonnabesse, within the last month. (T. 54-55.) The ALJ remarked that
SSA had requested records from Dr. Bonnabesse in October or November 2018, and the most
recent notes from the physician were dated June 2017. (T. 55.) In response to the ALJ’s
questions regarding this visit, Plaintiff testified that she had seen Dr. Bonnabesse a single time
within the last month, after a gap of approximately one year. (Id.) According to Plaintiff, the
physician had referred her for physical therapy, and “put in to have another procedure done.”
(Id.) Based on this description of the visit, the ALJ informed Plaintiff that he may decide that

there is sufficient evidence in the record without requesting this single treatment note. (T. 56.)
The ALJ did not request this additional note from Dr. Bonnabesse. Plaintiff contends that
the ALJ thus failed to fully develop the record. This Court disagrees. As the Commissioner
correctly asserts, “[t]he ALJ’s duty to develop the record is not infinite, and where, as here,
evidence in hand is consistent and sufficient to determine whether a claimant is disabled, further
development of the record is unnecessary.” Tatelman v. Colvin, 296 F. Supp.3d 608, 612
(W.D.N.Y. 2017) (citing Kinslow v. Colvin, No. 5:12-cv-1541 (GLS/ESH), 2014 WL 788793 at
*4 n.10 (N.D.N.Y. Feb. 25, 2014)) (internal quotation marks omitted). In this case, the ALJ
made multiple oral and written inquiries to Plaintiff regarding her treatment history, and made
11
multiple requests to treatment providers, including Dr. Bonnabesse, in order to develop the
record. (T. 39-42, 52-57, 263-272, 274-282, 1265-1266.) The ALJ’s disability determination
was based upon medical records totaling almost 1000 pages and included an opinion from Dr.
Bonnabesse, along with physical and psychiatric consultative examinations. Based on
Plaintiff’s hearing testimony, the single missing note from Dr. Bonnabesse did not identify any

significant deterioration in Plaintiff’s condition or substantial changes in treatment approach that
were not otherwise addressed in the record. (T. 55-56.) Plaintiff has not provided any further
details that would suggest this single treatment note could alter the ALJ’s decision, and did not
provide the document to the Appeals Council or this Court. See Curley v. Comm’r of Soc. Sec.
Admin., 808 F. App’x 41, 44 (2d Cir. 2020) (rejecting argument that the ALJ did not obtain
critical physical therapy records, in part, because Plaintiff did not provide them to the district
court or describe their contents.)
Accordingly, this Court finds that the ALJ met his heightened obligation to develop the
administrative record, and there are no grounds for remand related to this issue.

2. Calling Witnesses
Plaintiff’s mother accompanied her to the February 6, 2019 hearing. (T. 48.) The
following exchange occurred at the beginning of the hearing:
ALJ: Who is the other individual in the room with you, ma’am?
CLMT: My mom.
ALJ: Okay. And what’s her name?
CLMT: [Redacted]
ALJ: Okay. And you want her here for moral support?
CLMT: Yes.
ALJ: I have no objection to her being in the room if you want her here. So,
we’ll allow her to be present during the hearing, although she can’t participate.
She’s here as a – she’s here to really watch you and be your moral support.

(T. 48.)
12
Plaintiff contends that the ALJ erred as a matter of law when he stated that her mother
could not participate in the hearing, and should have advised her of the right to call her mother as
a witness. (Dkt. No. 16, at 24.) She asserts that these actions contributed to an adversarial and
prejudicial hearing environment. (Id.)
Plaintiff has not alleged any of the unique burdens found in Lopez, Collins, or similar
cases where witness testimony was deemed necessary to a full and fair hearing. Plaintiff is a
high school graduate with no significant language or learning difficulties. (T. 59-60.) The
hearing transcripts document Plaintiff’s recitation of her own symptoms and treatment history.
Perhaps more significantly, Plaintiff has not demonstrated any prejudice resulting from the

ALJ’s decision to bar the third-party testimony. Plaintiff never actually requested that her
mother testify at the hearing and has not demonstrated that such testimony would not have been
cumulative of the two third-party functional reports that her mother submitted for the record. (T.
48, 203-210, 248-260.) The ALJ expressly considered both reports as part of the disability
determination and explained why he found them to be “not entirely consistent with the medical
evidence and other evidence in the record.” (T. 16.)
Accordingly, there are no grounds for remand based upon the ALJ’s decision that
Plaintiff’s mother could attend the hearing as moral support, but could not testify or
otherwise participate.
3. Right to Counsel

Prior to her October 29, 2018 hearing, the Commissioner advised Plaintiff in writing of
her right to an attorney or other representative. (T. 139-140.) The same notice was provided prior
to her February 6, 2019 hearing. (T. 156-157.) At her first hearing, the ALJ verbally reminded
13
Plaintiff of her right to representation and summarized the type of assistance such a
representative could provide, including gathering evidence and questioning witnesses such as the
VE. (T. 37-38.) He also explained that an attorney may be able to represent Plaintiff on a
contingent fee basis, or Plaintiff may qualify for no-cost legal services. (Id.) The ALJ offered to
postpone the hearing to a later date if Plaintiff wished to pursue potential representation, and

asked Plaintiff to sign a written acknowledgment “that the next time we’re scheduled, you’ll be
prepared to go forward with the hearing on the merits [whether] or not you get counsel.” (T. 38.)
The ALJ also explained that it would be at least 75 days before her rescheduled hearing took
place. (Id.) When Plaintiff suggested that she would like her rescheduled hearing to occur
earlier, the ALJ advised that she contact attorneys as soon as possible, so that her legal counsel
could waive the requisite notice period and still have enough time to prepare for the hearing. (T.
43.)
Plaintiff signed an acknowledgment form that stated in part
I have been advised, both orally and in writing, that if I do not have a
representative by the next scheduled hearing, I must be prepared to proceed with
the hearing without a representative and, absent extraordinary circumstances, no
further postponement will be granted in order for me to get a representative.

(T. 148.) (emphasis in original).

When Plaintiff returned for her rescheduled hearing on February 6, 2019, she was

not represented by counsel. (T. 48.) The following exchange occurred:
ALJ: Now, ma’am, when you were before me in October, you - - we agreed that
you would be prepared to go forward on the merits the next time we
scheduled whether you got counsel or not. And we gave you more than
75-day[s] notice. I assume you’re ready to go ahead with the hearing on
the merits today?

CLMT: Yes, sir.

14
Plaintiff’s brief asserts that “[i]t appears she did not understand her right to counsel or the
benefit of having representation. (Dkt. No. 16 at 23.) She offers no support for this assertion
beyond a reference to Plaintiff’s below average intellectual functioning and diagnoses of
depressive disorder, anxiety, and substance abuse disorders. (T. 23.) There is no indication in the
record that Plaintiff failed to understand her right to representation, that Plaintiff was coerced

into signing the acknowledgment at her first hearing and proceeding without representation at
her second hearing, or that Plaintiff intended to request a second adjournment that would further
delay a determination on her application. Indeed, Plaintiff expressed a desire to avoid further
delays in resolving her claim. (T. 43.) This Court is therefore satisfied that there are no grounds
for remand due to Plaintiff’s decision to represent herself at her administrative hearing.
VII. LISTING 1.04(A)
A. Legal Standards
“The Listing of Impairments describes, for each of the major body systems, impairments
which are considered severe enough to prevent a person from doing any gainful activity.” 20

C.F.R. § 416.925(a). If a claimant’s impairment or combination of impairments meets or equals
a listed impairment, the evaluation process is concluded and the claimant is considered disabled
without considering the claimant’s age, education, or work experience. 20 C.F.R. §
416.920(a)(4)(iii).
At step three of the disability analysis, the ALJ must determine if plaintiff suffers from a
listed impairment. See 20 C.F.R. §§ 404.1520, 416.920. It is the plaintiff’s burden to establish
that his or her medical condition or conditions meet all of the specific medical criteria of
particular listed impairments. Gabriel C. v. Comm’r of Soc. Sec., No. 6:18-CV-671 (ATB), 2019
WL 4466983, at *4 (N.D.N.Y. Sept. 18, 2019) (citing inter alia Sullivan v. Zebley, 493 U.S. 521,
15
530 (1990)). “Nonetheless, the ALJ is required to explain why a claimant failed to meet or equal
the listings [w]here the claimant’s symptoms as described by the medical evidence appear to
match those described in the Listings.” Ramirez Morales v. Berryhill, No. 6:17-CV-06836, 2019
WL 1076088, at *3 (W.D.N.Y. Mar. 7, 2019) (quoting Rockwood v. Astrue, 614 F. Supp. 2d 252,
273 (N.D.N.Y. 2009) (citation and internal quotations omitted)). If a plaintiff’s impairment

“manifests only some of those criteria, no matter how severely,” such impairment does not
qualify. Debra E. v. Comm’r of Soc. Sec., No. 6:18-CV-513 (NAM), 2019 WL 4233162, at *6
(N.D.N.Y. Sept. 6, 2019) (quoting Sullivan, 493 U.S. at 530.). In order to demonstrate medical
equivalence, a plaintiff “must present medical findings equal in severity to all the criteria for the
one most similar listed impairment.” Sullivan, 493 U.S. at 531.
An ALJ is not required, in every instance, to provide an express explanation for his
conclusion that a claimant’s impairments fail to meet or equal the requirements of a Listing. See
Ryan v. Astrue, 5 F. Supp. 3d 493, 507 (S.D.N.Y. 2014) (citing Berry v. Schweiker, 675 F.2d
464, 469 (2d Cir. 1982)). “[W]here the evidence on the issue of whether a claimant meets or

equals the listing requirements is equipoise and ‘credibility determinations and inference
drawing is required of the ALJ’ to form his conclusion at step 3, the ALJ must explain his
reasoning.” Id. (quoting Berry, 675 F.2d at 469). Although “an ALJ ‘should set forth a sufficient
rationale in support of his decision to find or not to find a listed impairment,’ the absence of an
express rationale for an ALJ’s conclusions does not prevent [the court] from upholding them so
long as [the court] is ‘able to look to other portions of the ALJ’s decision and to clearly credible
evidence in finding that his determination was supported by substantial evidence.’” Salmini v.
Comm’r of Soc. Sec., 371 F. App’x 109, 112 (2d Cir. 2010) (quoting Berry, 675 F.2d at 469).

16
B. Application
Under Listing 1.04(A), an individual is presumptively disabled if he or she suffers from
“herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative
disc disease, facet arthritis, or vertebral fracture[ ], resulting in compromise of a nerve root ... or
spinal cord” with “[e]vidence of nerve root compression characterized by neuro-anatomic

distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test (sitting and supine).” 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 1.04(A).
Plaintiff contends that she meets or equals Listing 1.04 because she has a spinal disorder
with evidence of nerve root compression along with neuraoanatomical distribution of pain,
limited range of motion in her spine, leg numbness and multiple positive straight leg raise test
results. (Dkt. No. 16, at 19-20.) Defendant argues that Plaintiff has not shown any evidence of
motor loss (either atrophy or muscle weakness), or any equivalent medical findings and therefore

fails to satisfy all the criteria of Listing 1.04. (Dkt. No. 19, at 13-15.)
As noted above, the burden is on Plaintiff to show that all of the requirements are met
before she can satisfy a Listing. Otts v. Comm’r of Soc. Sec., 249 F. App’x 887, 889 (2d Cir.
2007). Here, Plaintiff has not shown that there is medical evidence of “motor loss accompanied
by sensory or reflex loss,” as required by Listing 1.04(A). Indeed, the record shows repeated
observation of full motor strength in Plaintiff’s upper and lower extremities. (T. 799, 1207,
1209, 1256.) Despite Plaintiff’s cite to a single example of leg numbness, the record also shows
generally normal sensation and reflexes. (T. 770, 1177, 1207, 1209, 1238, 1256, 1285.)

17
In light of this evidence, the Court finds that the ALJ could reasonably conclude that
Plaintiff did not meet the criteria of Listing 1.04(A), and that Plaintiff had not shown an
impairment “equal in severity and duration to the criteria of” Listing 1.04(A). Moreover, the
Court finds no evidence, nor does Plaintiff argue, that her condition met the requirements of
Listings 1.04(B) or 1.04(C).2

Accordingly, Plaintiff has failed to show that the ALJ erred in concluding that Plaintiff
did not meet or equal the impairment criteria for Listing 1.04. Otts, 249 F. App’x at 889 (noting
that it was the plaintiff’s “burden to demonstrate that her disability met all of the specified
medical criteria of a spinal disorder” and upholding the ALJ’s decision that the plaintiff’s
impairments did not meet or equal Listing 1.04(A) because there was no evidence of motor loss
accompanied by sensory or reflex loss or of nerve root compression); Debra A. v. Comm’r of
Soc. Sec., No. 6:18-CV-513 (NAM), 2019 WL 4233162, at *7 (N.D.N.Y. September 6, 2019)
(affirming ALJ’s finding that plaintiff did not satisfy Listing 1.04 where there was no medical
evidence of motor loss accompanied by sensory or reflex loss); Conetta v. Berryhill, 365 F.

Supp. 3d 383, 396–98 (S.D.N.Y. 2019) (finding that Plaintiff failed to show she met Listing 1.04
where there was insufficient medical evidence to show that she met all of the criteria); Kelsey v.
Comm’r of Soc. Sec., 335 F. Supp. 3d 437, 444 (W.D.N.Y. 2018) (affirming the ALJ’s finding
that Listing 1.04 criteria were not met because “Plaintiff’s motor strength was consistently
normal with no evidence of atrophy, as were her sensation and deep-tendon reflexes”); see also
White v. Berryhill, 753 F. App'x 80, 81 (2d Cir. 2019) (rejecting claimant's argument that he

2 Listings 1.04(B) or 1.04(C) require clinical findings showing evidence of spinal
arachnoiditis, lumbar spinal stenosis resulting in pseudoclaudication, or an inability to ambulate.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(B),(C).
18
equaled the requirements of Listing 1.04, where the record consistently showed normal balance,
strength, and reflexes).
VIII. RFC AND MEDICAL OPINION 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 activities in an ordinary
work setting on a regular and continuing basis. . . .” A “regular and continuing basis” means
eight hours a day, for five days a week, or an equivalent work schedule. 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 a 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, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler, 728 F.2d 582,
19
588 (2d Cir. 1984)); LaPorta, 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, citing specific medical facts, and non-medical evidence.
Natashia R. v. Berryhill, No. 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. Evaluating Medical Evidence
Pursuant to the “treating physician rule”3 set out in 20 C.F.R. § 416.927(c), “the opinion
of a claimant’s treating physician as to the nature and severity of the impairment is given
‘controlling weight’ so long as it is ‘well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in the case
record.’” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008)). However, “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, such as the opinions of other medical experts.” Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
In deciding how much weight to afford the opinion of a treating physician, the ALJ must
“‘explicitly consider, inter alia: (1) the frequency, length, nature, and extent of treatment; (2) the
amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the

3 For claims filed on or after March 27, 2017, a new set of regulations apply. These new
regulations do “not defer or give any specific evidentiary weight, including controlling weight, to
any medical opinion(s).” 20 C.F.R. § 416.920c(a). Because Plaintiff’s SSI application was filed
prior to March 27, 2017, the treating physician rule applies.

20
remaining medical evidence; and (4) whether the physician is a specialist.’” Greek, 802 F.3d at
375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)). However, where the ALJ’s
reasoning and adherence to the regulation is clear, and it is obvious that the “substance of the
treating physician rule was not traversed,” no “slavish recitation of each and every factor” of 20
C.F.R. § 404.1527 is required. Atwater v. Astrue, 512 F. App’x. 67, 70 (2d Cir. 2013) (citing

Halloran v. Barnhart, 362 F.3d at 31-32). The factors for considering opinions from non-treating
medical sources are the same as those for assessing treating sources, with the consideration of
whether the source examined the claimant replacing the consideration of the treatment relationship
between the source and the claimant. 20 C.F.R. §§ 416.927(c)(1)-(6).
B. Application
As an initial matter, “there is no requirement that the ALJ pick one RFC [opinion] and
use that particular evaluation in its entirety.” Alexandrea R.R. v. Berryhill, No. 15-CV-756-FPG,
2019 WL 2269854, at *6 (N.D.N.Y. May 28, 2019). Rather, “it is the ALJ’s responsibility to
choose between properly submitted medical opinions and other competent evidence to piece

together an overall [RFC] assessment.” Id. “Although the ALJ’s conclusion may not perfectly
correspond with any of the opinions of medical sources cited in his [or her] decision, he or [she]
was entitled to weigh all of the evidence available to make an RFC finding that was consistent
with the record as a whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (summary
order). In this case, the ALJ considered multiple medical opinions and treatment notes along
with Plaintiff’s testimony in reaching an RFC determination that was supported by substantial
evidence, as set forth below.

21
1. The ALJ’s evaluation of Plaintiff’s treating sources was supported by
substantial evidence.

In reaching his RFC determination, the ALJ considered the February 11, 2014 treatment
notes of Dr. Bonnabesse, who had managed Plaintiff’s pain management medication since at
least 2010, but was not doing so at the time of his examination. (T. 21, 63, 67-68, 286-287.)
Plaintiff had not seen Dr. Bonnabesse since January 2013, but needed a follow-up in connection
with her workers’ compensation claim. (T. 286-287.) During the examination, Plaintiff reported
a current pain level of 7 out of 10, particularly a dull aching pain in her lower back that radiated
down either leg. (T. 286.) Dr. Bonnabesse recommended a lumbar transforaminal epidural
steroid injection to address Plaintiff’s back pain. (Id.) He also fitted Plaintiff for a back brace to
provide greater spinal support, and encouraged her to sleep on a more supportive mattress. (Id.)
Based on his examination, Dr. Bonnabesse opined that Plaintiff was restricted to lifting
no greater than ten pounds, could perform no bending or twisting, could not push or pull items
weighing greater than fifteen pounds, and required the ability to shift positions as needed. (T.
287.) He also noted that Plaintiff had previously been classified as “75% temporary marked
partial disability.” (Id.)
The ALJ assigned Dr. Bonnabesse’s overall opinion “partial weight” because he found
the reference to 75% disability to be “vague and not persuasive.” (T. 21.) He assigned “some
weight” to the remainder of the opinion, because it came from a treating source and was
generally consistent with the overall record. (Id.) In particular, the ALJ’s RFC determination

that plaintiff could perform sedentary work is consistent with Dr. Bonnabesse’s opinion that
plaintiff could lift no greater than ten pounds, and had postural limitations due to back pain.
(T.14.)
22
Plaintiff contends that the ALJ should have given “full weight” to Dr. Bonnabesse’s
opinion, noting in particular its consistency with a July 2016 MRI showing borderline central
stenosis, and the treating physician’s concerns that additional surgery would exacerbate
Plaintiff’s impairments by causing more scar tissue. (Dkt. No. 16, at 26.) Plaintiff’s focus on the
specifics of the diagnosis and the course of treatment do not suggest that the ALJ lacked

substantial evidence for the functional limitations set out in his RFC determination. See Prince
v. Astrue, 490 Fed.Appx. 399, 400 (2d Cir. 2013) (a mere diagnosis, without evidence of severity
of symptoms and functional limitations, does not mandate a finding of disability); Payne v.
Astrue, No. 11-CV-322 (RFT), 2013 WL 550677, at *5 (N.D.N.Y. Feb. 12, 2013) (“The mere
existence of a diagnosis, however, is insufficient to show that functional limitations are imposed
as a result of the impairments.”). Likewise, as Defendant correctly points out, Dr. Bonnabesse’s
opinion regarding Plaintiff’s partial disability status was not binding on the Commissioner. 20
C.F.R. § 416.927(d); see also Snyder v. Comm’r of Soc. Sec., No. 7:14-cv-01292 (MAD), 2016
WL 1060304, at *6 (N.D.N.Y. Mar. 15, 2016) (“opinion that Plaintiff is unable to work is a

disability conclusion, not a medical opinion.”).
As part of his decision, the ALJ also expressly considered examination notes from two
other treating sources, Dr. Jason Arora and Dr. George Disney. (T. 18-20.) Dr. Arora examined
Plaintiff in April 2017 for management of her epidural injections. (T. 1270-1271.) Although
Plaintiff reported a “significant amount of pain relief” following a previous injection, Dr. Aurora
decided a second injection was appropriate in light of continuing pain that radiated into her left
leg. (Id.) Dr. Disney treated Plaintiff’s substance abuse issues and also took over primary
management of her pain medication from Dr. Bonnabesse. (T. 65-66, 895-896, 909, 919-920,

23
926-927, 1293-1294.) His treatment notes include numerous references to Plaintiff’s back pain,
describing it as “quite painful at times.” (T. 1281.)
Plaintiff contends that the ALJ erred by not addressing what weight, if any, he assigned
to “the findings and opinions” of Dr. Arora and Dr. Disney. (Dkt. No. 16 at 27.) In raising this
argument, Plaintiff cites the diagnoses and accompanying descriptions of Plaintiff’s symptoms

from the examination notes of these treatment sources but does not identify any functional
limitations identified by Dr. Arora or Dr. Disney. As such, the ALJ did not err by declining to
assign a weight to the “bare medical findings” in the examination notes. See Murray v. Comm'r
of Soc. Sec., No. 18-CV-326P, 2019 WL 4263336, at *3 (W.D.N.Y. Sept. 10, 2019) (remanding
where ALJ relied upon treatment notes containing “bare medical findings” that did not address
how claimant's impairments “affect[ed] her physical ability to perform work-related functions”
as a substitute for medical opinion evidence).
Finally, Plaintiff contends that the ALJ should have recontacted Dr. Bonnabesse, Dr.
Arora, and Dr. Disney to “obtain further evidence regarding her physical and mental

impairments and concomitant limitations.” (Dkt. No. 16, at 27.). Beyond the single visit to Dr.
Bonnabesse, Plaintiff has not identified any additional record evidence from these physicians
that would potentially shed new light not already provided by the objective and opinion evidence
in the record. “[W]here there are no obvious gaps ... and where the ALJ already possesses a
‘complete medical history,’” the ALJ is under no obligation to seek additional information. Rosa
v. Callahan, 168 F.3d 72, 79, n.5 (2d Cir. 1999).
2. The ALJ’s evaluation of Dr. Wassef’s consultative opinion was
supported by substantial evidence.

On January 12, 2017, Dr. Nader Wassef performed a consultative physical examination
24
of Plaintiff. (T. 1253-1260.) Prior to the examination, Dr. Wassef noted that Plaintiff appeared
to be in discomfort from pain in her lower back, and that Plaintiff preferred to stand due to
difficulty sitting down. (T. 1253.)
Dr. Wassef observed that Plaintiff walked with a slight limp, with “evidence of pelvic tilt
with the right anterior superior iliac spine an inch higher than the left anterior superior iliac

spine.” (T. 1255.) She required no assistive devices, and was able to change for the examination,
get on and off the examination table, and rise from a chair without difficulty. (Id.) Plaintiff was
in discomfort during range of motion exercises but her cervical spine showed full flexion,
extension, lateral flexion bilaterally, and full rotary movement bilaterally. (T. 1255-1256.) Her
lumbar spine showed reduced flexion/extension of 45 degrees, lateral flexion right and left 20
degrees, and rotary movements right and left 20 degrees, with diffuse tenderness in the lumbar
spine area. (T. 1256.) Plaintiff showed full range of motion in the shoulders, elbows, forearms
and wrists bilaterally, as well as in the hips, knees, and ankles bilaterally. (Id.) She demonstrated
full strength in the upper and lower extremities, intact hand and finger dexterity, and full grip

strength bilaterally. (Id.)
Dr. Wassef’s examination notes contain some inconsistencies. He reported that Plaintiff
has a positive straight left leg raise test at 60 degrees, but also stated that her straight leg raise
was negative bilaterally. (Id.) Similarly, Dr. Wassef reported that Plaintiff was unable to stand
and walk on heels and toes, and was unable to squat. (T. 1255.) In the next sentence, he reported
that Plaintiff could walk on heels and toes without difficulty and could perform a full squat. (Id.)
Based on his examination, Dr. Wassef opined that Plaintiff had “moderate limitations in
regard to standing, walking, climbing and descending stairs, bending, squatting, lifting, sitting,
and operating foot controls.” (T. 1256-1257.) He further opined that Plaintiff should not be
25
exposed to extremes in temperature, secondhand smoke, perfumes, chemicals, or any type of
respiratory irritants. (Id.) The ALJ assigned “some weight” to Dr. Wassef’s opinion, discounting
it due to the inconsistencies in the description of Plaintiff’s ability to walk or stand on heels and
toes, squat, and the unclear results of her straight leg raise test. (T. 22.)
Plaintiff contends that the ALJ erred by failing to re-contact Dr. Wassef to clarify the

inconsistent results of his examination. (Dkt. No. 16, at 25-26.) This court disagrees. This case
is not one of the rare situations where an ALJ is required to re-contact a consultative examiner to
clarify his opinion. See Reithel v. Comm'r of Soc. Sec., 330 F. Supp. 3d 904, 912 (W.D.N.Y.
2018) (“[T]he [ALJ] need only re-contact sources or obtain additional information where there is
a conflict or ambiguity that must be resolved but that cannot be resolved based on the evidence
present in the record.”); Gregorio C. v. Comm’r of Soc. Sec., No. 1:19-CV-1027 (EAW), 2021
WL 262286, at *4-5 (W.D.N.Y. January 27, 2021) (finding that ALJ should have re-contacted
consultative examiner to clarify incomplete opinion where there was no other medical opinion
evidence with regard to functional limitations). Here, the ALJ had detailed treatment notes

addressing Plaintiff’s physical impairments, including multiple straight leg raise tests, as well as
the opinions of treating physician Dr. Bonnabesse and non-examining consultant Dr. A.
Vinluan.4 (T. 97-99, 286-287, 799, 874, 1209.) In addition, there is no evidence that the
inconsistencies in the narrative report impacted Dr. Wassef’s ultimate opinion that plaintiff had
only moderate physical limitations.

4 The ALJ assigned “some weight” to Dr. Vinluan’s opinion in light of its consistency
with the overall record, but discounted it because it was solely based on a review of Plaintiff’s
medical records. (T. 22-23.)
26
Moreover, the ALJ’s RFC determination that Plaintiff could perform sedentary work,
based on the total record, was more restrictive than Dr. Wassef’s opinion, which was more
consistent with an ability to perform light work. See White v. Berryhill, No. 18-CV-1481, 753
F. App’x 80, (2d Cir. 2019) (holding that ALJ properly inferred that claimant was able to
perform light work on full-time sustained basis, where consultative examiner opined that

applicant had moderate limitations in standing, sitting, and performing other activities);
Raymonda C. v. Comm'r of Soc. Sec., No. 3:19-CV-0178, 2020 WL 42814, at *4 (N.D.N.Y. Jan.
3, 2020) (“[C]ourts have consistently found that a ‘moderate’ limitation in [standing, walking,
lifting, and carrying] is essentially equivalent to an ability to perform light work.”) (collecting
cases); Gurney v. Colvin, No. 14-CV-688S, 2016 WL 805405 at *3 (W.D.N.Y. 2016) (collecting
cases holding that RFC for light work sufficiently accounts for moderate postural limitations
such as lifting, bending, reaching, pushing, pulling and/or carrying). Therefore, any error in the
ALJ’s failure to re-contact Dr. Wassef to clarify his findings was harmless.
Dr. Brett Hartman performed a consultative psychiatric examination of Plaintiff on

January 12, 2017. (T. 1248-1252.) Prior to the examination, Plaintiff reported difficulty falling
asleep due to pain and racing thoughts. (T. 1249.) She also reported that she felt overwhelmed
easily and experienced concentration problems and mild short-term memory loss. (Id.)
During the examination, Plaintiff demonstrated coherent and goal-directed thought
processes, with an anxious and dysphoric mood. (T. 1250.) Her attention and concentration
appeared mildly impaired. (Id.) She could perform counting exercises without difficulty, but she
was slow with calculations and serial 3s. (Id.) Her recent and remote memory skills appeared to
be generally intact, but her intellectual functioning appeared to be significantly below average
with a borderline general fund of information. (T. 1251.)
27
Based on his examination, Dr. Hartman opined that Plaintiff was able to follow and
understand simple directions and perform simple tasks. (Id.) He further opined that Plaintiff had
a “fair ability” to maintain a regular schedule, learn new tasks, and make appropriate decisions.
(Id.) He also opined that Plaintiff had mild difficulty maintaining attention and concentration,
perform complex tasks independently, and mild to moderate difficulty relating adequately with

others and moderate problems dealing with the normal stressors of life. (T. 1251-1252.)
The ALJ assigned great weight to Dr. Hartman’s opinion in light of his examination of
Plaintiff, his program experience, and the opinion’s consistency with the overall record. (T. 22.)
He incorporated the consultative examiner’s findings into the RFC determination by limiting
Plaintiff to work consisting of unskilled tasks that required little or no judgment to do simple
duties that can be learned on the job in a short period of time. (T. 14.)
Plaintiff contends that the RFC determination should have included greater mental
limitations regarding time off-task, in light of Dr. Hartman’s opinion that Plaintiff had a fair
ability to maintain a regular schedule. (Dkt. No. 16, at 31.) However, there is no indication that

Dr. Hartman intended to suggest any significant limitations in this area. See Filichko v. Colvin,
No. 15-CV-525, 2016 WL 3166899, at *7 (S.D.N.Y. Apr. 27, 2016) (plaintiff's “fair” ability to
sustain an ordinary routine, among other mental abilities, suggested no more than a mild
impairment); Jesse S. Comm’r of Soc. Sec., No. 8:19-CV-1074 (ATB), 2020 WL 3470492, at
*12 (N.D.N.Y. June 25, 2020) (rejecting plaintiff’s argument that “fair” ability to sustain an
ordinary routine was equivalent to marked limitations in performing a normal workday and
performing at a consistent pace.). Therefore, the ALJ’s interpretation of Dr. Hartman’s opinion
was reasonable, particularly in light of Plaintiff’s documented ability to regularly attend
outpatient drug treatment and counseling sessions for a number of years. (T. 23, 318, 321.)
28
3. The ALJ’s evaluation of Plaintiff’s testimony was supported by
substantial evidence.

At her February 6, 2019 hearing, Plaintiff testified that her primary impairment was back
pain that radiated into her left leg and made it difficult to stand for long periods. (T. 62, 77-78.)
She described the pain as continuous, forcing her to shift positions regularly, with the most
comfortable position being lying on her side. (T. 77-78.) She testified that she had regularly
sought treatment for her back, but that Dr. Bonnabesse had told her that “he doesn’t know what
else to do for me,” resulting in gaps in her treatment due to a lack of viable treatment options.
(T. 80.)
With regard to daily activities, Plaintiff testified that her oldest child attended pre-
kindergarten during the day,5 but she cared for her youngest child by herself during the daytime.
(T. 80.) At night, Plaintiff’s father typically came over to assist with childcare and household
tasks such as laundry. (T. 78-79.)
The ALJ gave several reasons for discounting Plaintiff’s subjective description of her
functional limitations. (T. 23.) First, he noted that Plaintiff’s activities of daily living, including
care of a one-year old child and regular attendance at outpatient drug treatment and counseling
sessions, were inconsistent with the debilitating back pain that she described. (T. 23, 80, 318,
321, 1250.) The ALJ also noted that Plaintiff had several gaps of a year or more between
treatment appointments for her back pain. (T. 286, 874.) He also cited 2017 treatment notes
reflecting Plaintiff’s statements that her sciatica “had been better for a long time with little or no

discomfort” until a recent flare-up, and that “[h]er back does not bother her every day.” (T. 1280-
1281.) The ALJ also factored in the sporadic work history that predated Plaintiff’s alleged onset

5 Plaintiff had assistance transporting her child to and from school. (T. 80.)
29
date. (T. 23, 211, 240.) All of these factors, when taken together, were valid considerations that
are supported by the record. See Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998) (ALJ may
consider plaintiff's limited work history as one factor in assessing her testimony regarding her
symptoms); Tasha W. v. Comm’r of Soc. Sec., No. 3:20-CV-731, 2021 WL 2952867 (N.D.N.Y.
July 14, 2021) (ALJ may properly consider a plaintiff's daily activities, including childcare, as

part of the RFC analysis) (collecting cases); Smith v. Berryhill, No. 17-CV-6465L, 2018 WL
5266794, at *2 (W.D.N.Y. Oct. 23, 2018) (ALJ may consider plaintiff’s inconsistent treatment
history as one factor to support his findings).
IX. STEP FIVE DETERMINATION

Plaintiff has not raised any specific challenge to the ALJ’s step five determination, so this
Court will only briefly address this issue. At step five, the burden shifts to the Commissioner “to
show there is other work that [the claimant] can perform.” McIntyre, 758 F.3d at 150 (quoting
Brault v. Soc. Sec. Admin., 683 F.3d 443, 445 (2d Cir. 2012)). “If a claimant has non-exertional
limitations that ‘significantly limit the range of work permitted by his exertional limitations,’ the
ALJ is required to consult with a vocational expert.” Zabala v. Astrue, 595 F.3d 402, 410 (2d
Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986)).
If the ALJ utilizes a VE at the hearing, the VE is generally questioned using a
hypothetical question incorporating Plaintiff’s limitations. See Aubeuf v. Schweiker, 649 F.2d
107, 114 (2d Cir. 1981). The ALJ may rely on a VE’s testimony regarding the availability of
work as long as the hypothetical facts the expert is asked to consider are based on substantial
evidence and accurately reflect the Plaintiff’s limitations. Calabrese v. Astrue, 358 F. App’x
274, 276 (2d Cir. 2009). Where the hypothetical is based on an ALJ’s RFC analysis which is
supported by substantial facts, the hypothetical is proper. Id. at 276-77.
30
VE Heck testified at the hearing. (T. 82-87.) Because this Court has found the ALJ’s
RFC determination was supported by substantial evidence, it also finds his hypothetical to VE
Heck based upon that RFC was proper, and thus the ALJ’s step five determination was supported
by substantial evidence. (T. 23-24, 84-86.) Based on the foregoing, the ALJ’s decision was
based upon correct legal standards, and substantial evidence supports his determination that
Plaintiff was not under a disability at any time between the application date and the date of the
ALJ’s decision.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 16) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 19) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED, and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED.

Dated: August 2, 2021
Binghamton, New York /
Miroslav Lovric
U.S. Magistrate Judge

31

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313965. Public record. Not legal advice.