# Brandon v. Kijakazi

> District Court, N.D. New York · September 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10314124

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

LATONYA T. E. B.,
Plaintiff,
V. 5:20-CV-462
(CFH)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

APPEARANCES: OF COUNSEL:
Law Offices of Kenneth Hiller, PLLC JUSTIN M. GOLDSTEIN, ESQ.
600 North Bailey Avenue, Ste. 1A KENNETH R. HILLER, ESQ.
Amherst, New York 14226
Attorneys for plaintiff
I
Social Security Administration AMELIA STEWART, ESQ.
J.F.K. Federal Building, Rm. 625
15 New Sudbury Street
Boston, Massachusetts 02203
Attorneys for defendant
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUN-DECISION & ORDER
Plaintiff Latonya T. E. B.' brings this action pursuant to 42 U.S.C. § 405(g)
seeking review of the decision by the Commissioner of the Social Security
Administration “Commissioner,” “SSA,” or “defendant”) denying her application for
disability insurance benefits and supplemental security income. See Dkt. No. 1.

1 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.

(“Compl.”).2 Plaintiff moves for a finding of disability, and the Commissioner cross
moves for judgment on the pleadings. See Dkt. Nos. 12, 16. For the following reasons,
the determination of the Commissioner is affirmed.

I. Background

a On March 15, 2015, plaintiff protectively filed a Title Il application for disability
and disability insurance benefits as well as a Title XVI application for supplemental
security income, alleging disability beginning on September 28, 2013.3 T 299-309.
The applications were denied on June 17, 2015. See id. at 122-35. Plaintiff filed a
written request for a hearing. See id. at 171-72. On March 30, 2017, a hearing was
held before Administrative Law Judge (“ALJ”) John P. Ramos where plaintiff appeared

i with a non-attorney representative. See id. at 77-97. On April 27, 2017, the ALJ issued
a decision denying plaintiff's application. See id. at 47-53. The Appeals Council,
following plaintiff's request for review, vacated the April 27, 2017, decision and
remanded to the ALJ for further proceedings. See id. at 151-54.
Plaintiff appeared before ALJ Ramos for a second hearing on January 3, 2019,
represented by a non-attorney representative. T at 59-76. On February 12, 2019, ALJ
Ramos issued a decision denying plaintiff's application. See id. at 15-25. The Appeals
Council denied plaintiff's request for review, making the ALJ’s decision the final

2 The parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. § 636
(c), Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 73, N.D.N.Y. Local Rule 72.2 (b), and General
Order 18.
3 Plaintiff later amended her alleged onset date to February 14, 2016
4 The Court will cite the administrative transcript as “T [page number].” The Court will cite the pagination
that appears in the bottom right-hand corner of the administrative transcript. Citations to the parties’
submissions will be to the pagination generated by the Court's filing system, located at the header of each
page.

determination of the Commissioner. See id. at 1-6. Plaintiff commenced this action on
April 23, 2020. See Compl.

ll. Standards of Review
A. Substantial Evidence Standard
° 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.
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,
m|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
m| 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, such 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).
a

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
m| 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 t
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.
lf 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
o 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
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
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. Id. (citing Berry, 675 F.2d at 467).

lll. Discussion
A. ALJ’s Decision
Applying the five-step disability sequential evaluation, the ALJ first determined
that plaintiff had not engaged in substantial gainful activity since February 14, 2016, the
amended alleged disability onset date. See T at 18. At step two, the ALJ found that
plaintiff had the following severe impairments: cervical spine degenerative disc disease,
lumbar spine degenerative disc disease, right shoulder degenerative joint disease, and
morbid obesity. See 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.
Before reaching step four, the ALJ concluded that plaintiff retained the residual
m| functional capacity (“RFC”) to
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except that the claimant should not do any constant bending, reaching or
turning of her head. The claimant should be permitted to change position
from sitting to standing and from standing to sitting after thirty minutes.
Id. at 19.
At step four, the ALJ determined that plaintiff was capable of performing past
relevant work as a telephone service operator and customer service representative.
See T at 24. 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 25.

B. Arguments
Plaintiff argues that the ALJ’s decision is not based on substantial evidence. See
generally dkt. no. 12. Specifically, plaintiff contends that the ALJ erred in failing to

(1) find a greater restriction on her ability to reach, (2) properly weigh and assess
several medical opinions limiting plaintiff to part-time work, and (3) develop the record
by obtaining medical documents that were mentioned in treatment notes within the
record but not included in the record. See id.
In opposition, defendant argues that substantial evidence supports the ALJ’s
RFC assessment. See Dkt. No. 16. Defendant contends that record opinions stating
that plaintiff was limited to working two days per week or part-time work were not
entitled to greater weight as (1) this is an issue reserved to the Commissioner; (2) the
opinions were rendered for the purpose of No Fault Insurance, which applies a standard
that differs from that used by the Social Security Administration (“SSA”) to assess
disability; (3) the opinions were conclusory, and (4) plaintiff's testimony that she had
been working up to thirty-hours per week contradicted such opinions. See id. at 6-8. A
for the ALJ’s findings on reaching, defendant argues that plaintiff misinterprets the ALJ’s
decision as the ALJ concluded that plaintiff could not constantly reach, and that his
assessment that plaintiff could frequently reach was supported by substantial evidence.
Id. at 15. Finally, defendant argues that the ALJ did not have duty to further develop the
record because (1) he asked plaintiff's representative if the record was complete, and
there was no obvious gap in the record. See id. at 18-19.

C. Analysis
1. Opinion Evidence
Plaintiff argues that the ALJ erred in his assessment of several medical opinions.
First, she contends that the ALJ improperly accorded PA Ryan Bowser’s opinion “little

weight” and Dr. Mills’® opinion “some weight because (1) the opinions were rendered for
the purpose of No Fault Insurance; (2) the ALJ failed to “apply the regulatory factors an
provide factually supported reasons” for the weights accorded to these opinions; and
(3) the ALJ failed to seek “a more detailed statement.” See Dkt. No. 12 at 16, 18-19.
Second, plaintiff argues that the ALJ “failed to weigh or summarize” several additional
| opinions “indicating that Plaintiff could perform a reduced range of sedentary work on a
part time basis,” including that of Dr. Mills, Dr. Buchanin, Dr. Ubagharaji, Dr. Singh, Dr.
Small, Dr. Garg, Dr. Gaber, Dr. Nijar, Dr. Wani, and Physical Therapist Ross. See id. at
16.
Defendant contends that the ALJ did not reject the opinions solely because they
were rendered for purposes of No Fault Insurance, but because (1) the opinions limiting
| plaintiff to working two days a week were based on plaintiff's subjective complaints;
(2) the ALJ’s opinion that plaintiff could perform full-time work is supported by
consultative examiner Dr. Lorensen’s opinion; (3) the ALJ’s assessment of Dr. Mills and
PA Bowser was proper as: (a) these were not treating physicians, and, thus, not entitled
to controlling weight; (b) the ALJ accounted for Dr. Mills’ opinioned limitations within the
RFC; (c) the ALJ limited plaintiff to sedentary work; and (d) PA Bowser did not provide a
complete function-by-function assessment and is not an acceptable medical source.
See Dkt. No. 16 at 9-15.

a. PA Bowser

5 Dr. Mills is an independent medical examiner who examined plaintiff for purposes of No Fault
Insurance.

Addressing first plaintiff's argument that the ALJ improperly accorded PA
Bowser’s opinion little weight because it was rendered for No Fault Insurance purposes,
dkt. no. 12 at 16, the Court notes that the opinion demonstrates that the ALJ did not
reject PA Bowser’s opinion solely because it was generated for the purpose of obtaining
No Fault benefits. It is well settled that an opinion rendered for the purpose of workers’
o compensation or No Fault insurance benefits is not binding on the ALJ as the standards
used in assessing those benefits differ from those applied to determine whether a
claimant is disabled and entitled to social security benefits. See generally Naumov v.
Comm’r of Soc. Sec., 20-CV-3180 (GRB), F.Supp. 2021 WL 2144762, at *2
(E.D.N.Y. May 21, 2021) (“The standards for disability under workers’ compensation
programs are entirely distinguishable from those under disability insurance benefits.”).
m| Indeed, “[a] decision by any nongovernmental agency or any other governmental
agency about whether you are disabled . . . is based on its rules .... We must make a
disability . . . determination based on social security law. Therefore, a determination
made by another agency that you are disabled or blind is not binding on us.” Mortise v.
Astrue, 713 F. Supp. 2d 111, 125 (N.D.N.Y. 2010) (quoting 20 C.F.R. § 404.1504).
Thus, as different standards are applied, “an ALJ may properly conclude that such
opinions do not provide much guidance in terms of whether a claimant’s ability to work
qualifies him [or her] for Social Security benefits.” McNerney v. Comm'r of Soc. Sec.,
No. 1:18-CV-1073-TPK, 2019 WL 5558392, at *5 (W.D.N.Y. Oct. 29, 2019) (citing
Ramirez v. Astrue, 12-CV-6221, 2014 WL 2520914, at *10 (W.D.N.Y. Mar. 28, 2014)).
The ALJ’s decision to accord PA Boswer’s opinion “little weight” is supported by
substantial evidence. PA Bowser stated that plaintiff could work “with a 25%

impairment, no lifting greater than 5 pounds, no overhead lifting.” T at 1311. Although
plaintiff generally argues that the ALJ did not provide “valid reasons” for rejecting PA
Bowser’s opined limitations or did not “apply the regulatory factors” when making his
assessment, the Court disagrees. Dkt. No. 12 at 16, 19. The ALJ reviewed PA
Bowser’s treatment notes in detail, including his review of plaintiff's X-ray and MRI
° studies, physical examinations, plaintiff's complaints, and diagnoses. See T at 20-21,
24. In addition to noting that PA Boswer rendered his opinion that plaintiff “was able to
work with a twenty-five percent impairment, no lifting greater than give pounds and no
overhead lifting” for the purpose of “reporting to No Fault Insurance Carrier,” the ALJ
also noted that PA Bowser (1) is not an acceptable medical source, (2) presented vagu
Opinions regarding plaintiff's limitations, and (3) set forth opinions that were “not based
a complete function-by-function analysis.” T at 24. Additionally, the ALJ observed
that PA Boswer was examining plaintiff for shoulder pain, and “[d]id not provide a
thorough assessment related to the claimant's other impairments.” Id.
To the extent plaintiff suggests that the ALJ was required to detail all of the
various “regulatory factors,” the ALJ explicitly remarked on many of these factors. He
noted that PA Bowser was not an acceptable medical source,® and he reviewed the
Nature of the treatment relationship, noting that PA Bowser “examined the claimant on
many occasions,” and going through the various treatment records, including
examination findings and imaging studies. T at 24. Thus, the ALJ reviewed pertinent
regulatory factors and provided the specific reasons for his finding. The ALJ explained

6 Plaintiffs arguments regarding PA Bowser fall under the heading of “Treating Physician Rule.” Dkt.
No. 12 at 16. However, as PA Bowser is a PA, he is not considered a treating physician and is not an
acceptable medical source under the regulations in place at the time; thus, his opinion was not entitled to
controlling weight.
10

the reasons behind why he gave PA Bowser’s opinion little weight: he was not an
acceptable medical source, his findings were vague and unsupported by a function-by-
function assessment, his statements on plaintiff's ability to work were rendered for the
purpose of No Fault Insurance, and he did not appear to be treating plaintiff for
conditions beyond her shoulder pain. See id. Plaintiff does not point to a specific factor
| or factors she believes the ALJ improperly failed to lay out; however, to the extent the
ALJ did not address all of the regulatory factors explicitly, “[t]he ALJ is not required to
spell out precisely how each and every one of the regulatory factors applies to a given
provider's opinion as long as the record reflects that he properly applied the substance
of the rule.” Tahira H. v. Comm'r of Soc. Sec., No. 5:18-CV-1120, 2020 WL 42823, at *8
(N.D.N.Y. Jan. 2, 2020) (citing Petrie v. Astrue, 412 F. App’x 401, 407 (2d Cir. 2011)
m| (Summary order)). As, the ALJ sufficiently explained his basis for providing PA
Bowser’s opinion little weight, the record demonstrates that he “properly applied the
substance of the rule.” Id. Thus, there is no basis for remand on this ground.
To the extent that plaintiff argues that the ALJ had the duty to develop the
record by obtaining from PA Bowser a function-by-function assessment, the Court
disagrees. Plaintiff characterizes the ALJ as “rejecting” PA Boswer and Dr. Mills’
| opinions for “lack of detail,” dkt. no.12 at 19, the decision demonstrates that an absence
of a function-by-function assessment was one of several reasons the ALJ provided in
explaining the weight accorded to these opinions. Unlike in the cases plaintiff cites,
there is no gap in the record nor suggestion that the ALJ relied on his interpretation of
raw medical data. See Dkt. No. 12 at 19 (citing Jessica B. v. Comm’r of Soc. Sec.,
3:18-CV-424 (FJS), 2019 WL 3494356, at *4 (N.D.N.Y. Aug. 1, 2019); Mecklenburg v.

11

Astrue, No. 07-CV-760, 2009 WL 4042939, at *6 (W.D.N.Y. Nov. 19, 2009)). The
decision demonstrates that ALJ relied on consultative examiner Dr. Lorensen’s
examination concluding that plaintiff had “moderate” restrictions on lifting, reaching, and
bending. T at 23. Although a one-time consultative examiner, Dr. Lorensen is an
acceptable medical source whose opinion may be relied on when consistent with
medical evidence in the record. See Kya M. v. Comm’r of Soc. Sec., 506 F. Supp. 3d
159, 164 (W.D.N.Y. 2020) (citing Guerra v. Comm'r of Soc. Sec., No. 1:16-CV-
00991(MAT), 2018 WL 3751292, at *7 (W.D.N.Y. Aug. 7, 2018), aff'd, 778 F. Appx 75
(2d Cir. 2019) (“An ALJ has discretion to weigh the opinion of a consultative examiner
and attribute the appropriate weight based on his review of the entire record.”) and
Suttles v. Colvin, 654 F. App’x 44, 46 (2d Cir. 2006) (summary order) (“An ALJ may give
the opinion of a consultative examiner ‘great weight’ when it is consistent with the
underlying medical evidence.”)). “It is also generally accepted that a consultative
examiner's opinion may be accorded greater weight than a treating source's opinion
where the ALJ finds it more consistent with the medical evidence.” Kya M., 506 F.
Supp. 3d at 164 (quoting Colbert v. Comm'r of Soc. Sec., 313 F. Supp. 3d 562, 577
(S.D.N.Y. 2018)).
The ALJ limited plaintiff to sedentary work with no constant bending, reaching, or
turning. T at 19. As moderate restrictions in these areas are not necessarily
inconsistent with sedentary work, the ALJ appropriately incorporated moderate
restrictions in these areas into his RFC. See, e.g., Harris v. Comm'r of Soc. Sec., No.
09-CV-1112, 2011 WL 3652286, at *5 (N.D.N.Y. July 27, 2011) report and
recommendation adopted, 2011 WL 3652201 (N.D.N.Y. Aug. 17, 2011). Thus, the

12

Court finds no basis for remand surrounding the ALJ’s assessment of PA Bowser’s
opinion.

b. Dr. Mills
Plaintiff also argues that the ALJ improperly assessed the opinion of consultative
°) examiner Dr. Mills as PA Bowser’s opinion that plaintiff is limited to part-time, sedentary
work is consistent with Dr. Mills’ opinion. See Dkt. No. 12 at 16. Plaintiff suggests that
the ALJ failed to “apply the regulatory factors” or “provide factually supported reasons
for the weight afforded” to Dr. Mills’ opinion. Dkt. No. 12 at 19 (citing SSR 06-03p).’
On January 24, 2017, Dr. Mills performed an examination of plaintiff relating to
her No Fault insurance claim. See T at 667-73. Dr. Mills concluded that plaintiff had a
m| “mild orthopedic disability,” but could perform her usual activities of daily living,
excepting that she could not lift over 25 pounds or perform “repetitive overhead
activities.” Id. at672. Dr. Mills concluded that plaintiff could “continue to work 16-24
hours per week.” Id. Although Dr. Mills found restrictions for lifting and overhead, he
also opined that plaintiffs impairment was temporary and expected to “stabilize with
additional recommended treatment.” Id. at 671-72. The ALJ accorded this opinion
“some weight,” noting that Dr. Mills performed a thorough examination. Id. at 24. Even
if the Court assumes that ALJ erred in his assessment of Dr. Mills’ opinion, any error
would be harmless as the ALJ’s RFC adequately accounted for lifting up to twenty-five
pounds and no constant reaching. See Sova v. Colvin, 7:13-CV-0570, 2014 WL
4744675, at *8 (N.D.N.Y. Sept. 23, 2014). Insofar as the ALJ declined to credit Dr.

? The Court notes that SSR 06-03p was rescinded, effective March 27, 2017. However, as plaintiff filed
her claim prior to the effective date, SSR applies.
13

Mills’ statement that plaintiff could continue work 16-24 hours per week, for the reasons
set forth above, the ALJ did not commit reversible error in declining to credit what is
essentially a disability assessment made pursuant to standards that differ from those
used to determine disability for Social Security purposes. See supra at 8-9.

o c. Consultative Examiner Elke Lorensen, M.D.
Plaintiff argues that Consultative Examiner Lorensen’s opinion, which the ALJ
accorded “significant weight,” does not suffice to contradict PA Boswer’s opined
limitations nor amount to substantial evidence supporting the RFC because (1) it
predates the amended alleged onset date, and (2) “all medical opinions from the
relevant time period support greater limitations and support the ability to perform only
m| part time work.” Dkt. No. 12 at 16. The Court rejects this argument for the reasons set
forth in defendant's brief. See Dkt. No. 16 at 17. To that reasoning, the Court adds the
additional analysis, set forth below.
“[A] medical opinion is not necessarily stale simply based on its age.”
Dronckowski v. Comm'r of Soc. Sec., No. 1:18-CV-0027 (WBC), 2019 WL 1428038, at
*5 (W.D.N.Y. Mar. 29, 2019) (citing Biro v. Comm'r of Soc. Sec., 335 F. Supp. 3d 464,
m|470 (W.D.N.Y. 2018)). An ALJ “may consider all evidence of record, including medical
records and opinions dated prior to the alleged onset date.” Sabrina L. o/b/o/ T.L v.
Berryhill, 1:17-CV-542, 2018 WL 6521760, at *9 (W.D.N.Y. Dec. 12, 2018) (quoting
Pirtle v. Astrue, 479 F.3d 931, 934 (8" Cir. 2007)); Camille v. Colvin, 652 F. App'x 25,
29 n.4 (2d Cir. 2016) (summary order) (noting that while there is no “unqualified rule tha
a medical opinion is superseded by additional material in the record,” an opinion based

14

on an incomplete record may be considered stale where subsequent evidence differs
materially from earlier evidence).
As defendant points out, the ALJ did not rely solely on Dr. Lorensen’s opinion in
reaching his RFC; rather, he accorded “some weight” to Edward Mills, M.D.’s opinion.
at 24. Dr. Mills performed a consultative examination of plaintiff on January 24, 2017,
after the alleged amended onset date. See id. at 666-73. Dr. Mills concluded that
plaintiff could “continue to work 16-24 hours per week with limitations only on no
repetitive overhead activities and no lifting over 25 pounds.” Id. at 672. The ALJ
accorded Dr. Mills’ opinion “some weight” as it was “rendered after a thorough
examination of the claimant, but noted that the opinion was provided as part of a No
Fault Insurance evaluation, based on criteria differing from Social Security regulations.”
ld. The ALJ concluded that Dr. Mills’ assessment of working sixteen to twenty-four
hours per week was “not clearly explained in terms of functional limitations and
inconsistent with the finding of mild orthopedic impairment supported by the complete
record of medical evidence.” Id.
Even according Dr. Mills opinion “some weight,” together with Dr. Lorensen’s
evaluation, these opinions suffice to support the ALJ’s RFC. It is clear that the ALJ
| accorded less weight to Dr. Mills opinion in part due to it being completed for No Fault
Insurance — which was a reasonable determination, for the reasons discussed above —
and because the part-time work restriction was not explained and inconsistent with
other record evidence. However, it appears the ALJ accepted Dr. Mills’ assessment
regarding no repetitive overhead reaching activities and lifting over twenty-five pounds
as these restrictions are not inconsistent with the ALJ’s RFC. In limiting plaintiff to

15

sedentary work with no constant reaching, the ALJ concluded that plaintiff could perfor
past relevant work as a telephone answering service operator (DOT 235.662-026) and
customer service representative (DOT 249.362-036).8 The vocational expert (“VE”)
testified that, although the DOT for telephone service operator indicates that it requires
constant reaching, because the job no longer requires use of a cord and switchboard,
"| but a computer and phone, the reaching requirement is only “frequent.” T at 71.
Discussing the customer service representative position, the VE testified that a person
who could not constantly each in any direction with either upper extremities could
perform the roles of customer service representative and answering service operator as
generally performed and as actually performed by plaintiff “with the update, and
definition that [the VE] provided based on [the VE’s] experiences in the labor market,
| [the VE’s] education and training, and [the VE’s] knowledge of how the job is performed
today, in that the reaching would be frequent.” Id. at 73. As the ALJ concluded only
that plaintiff could not constantly reach, and Dr. Lorensen and Dr. Mills’ opinions suppo
a conclusion that plaintiff could perform jobs that require frequent reaching, the ALJ’s
reliance on Dr. Lorensen’s opinion is not reversible error.
Plaintiff opines that Dr. Lorensen’s opinion and “some weight” to Dr. Mills’ opinio
Should not contradict PA Bowser’s opinion as several treating providers supported PA
Bowser’s opinions that plaintiff is limited to working two days per week. See Dkt. No. 12
at 17-18. However, as set forth above, supra at 6-8, the various treatment notes plainti
cites, although provided by treating providers, were (1) rendered for purposes other

8 Plaintiff cites the DOT for Order Clerk (DICOT 249.362-026 (G.P.O., 1991 WL 672320). See Dkt. No.
12 at 21. However, the ALJ concluded that plaintiff could perform the role of customer service
representative (DICOT 249.362-036). The citation to the description for Order Clerk appears to be
scriveners error.
16

than social security disability, and, thus did not apply the same standards; and (2)
based on plaintiff's statement that she could only work two days per week, rather than
on a physical function-by-function examinations.? This Court concluded above that the
ALJ reasonably accorded less weight to those records concluding that plaintiff could
work two days per week because they were assessed for the purpose of no fault
o disability, which uses differing standards than those used by the SSA. See supra at 6-
8.
Insofar as plaintiff argues that the ALJ erred insofar as he failed to discuss"°
treatment notes from various treating providers that similarly concluded that plaintiff was
limited to working two days per week, this argument lacks force for three reasons. First,
these treatment notes essentially render a disability finding for another agency and are
m| not dispositive on the Commissioner. See 20 C.F.R. § 416.927(d)(1); Mortise v. Astrue,
713 F. Supp. 2d 111, 125 (N.D.N.Y. 2010) (Kahn, J.) (“[A]n opinion concerning the
ultimate issue of disability, from any source, is reserved to the commissioner.”). Indeed,
as defendant points out, the treatment notes plaintiff highlights do not appear to reflect
medical conclusions based on an examination, rather they are reflective plaintiff's own
reporting of her current working level and/or complaints of pain. The reports merely
| State that plaintiff is to “continue” to work two days per week or that she “currently”
works two days per week. T at 952-53, 985, 988, 1178, 1183, 1193, 119. Finally,
these opinions stating that plaintiff is limited to working two days per week mirror

8 Plaintiff sets forth similar arguments regarding Physician Therapist Ross within the Treating Physician
Rule section of her brief, a physical therapist is also not an acceptable medical source, and, thus, the
treating physician rule does not apply. See Dkt. No. 12 at 17; 20 C.F.R. § 404.1513(a); see also Diaz v.
Shalala, 59 F.3d 307, 312-314 (2d Cir.1995).
10 The Court notes that the ALJ did discuss at least some of these records within his decision. See T at
20 (citing Dr. Garg’s treatment note, T at 200).
17

several others in the record similarly concluding that plaintiff was limited to working two
days a week. Thus, the ALJ’s failure to explicitly discuss the remainder of the opinions
within his decision does not amount to reversible error.

2. Reaching
° Plaintiff argues that the ALJ erred in concluding that plaintiff could constantly
reach as “the ALJ previously found Plaintiff [could] only occasionally reach with her right
upper extremity in the decision prior to the Appeals Council's remand order,” there is no
evidence of improvement since the ALJ rendered his first decision, and the Vocational
Expert (“VE”) testified that there would be no sedentary work available if the individual
were limited to occasional reaching. Dkt. No. 12 at 21. Plaintiff argues that the ALJ did
point to “any evidentiary support of the ability to reach constantly,” meaning is
finding “was based upon the interpretation of the raw medical evidence” and plaintiff's
activities of daily living, which fails to amount to substantial evidence. Id. at 21-22.
Plaintiff also argues that the ALJ erred in assigning “significant weight” to consultative
examiner's Dr. Lorensen’s opinion, as: (1) this opinion predated the amended onset
date; (2) her finding of moderate limitations in bending, lifting, and reaching is “vague”;
and (3) because the ALJ “did not identify another opinion or anything in the record
supporting the manipulative abilities indicated in the RFC finding,” his assessment as it
relates to plaintiff's reaching limitations was not supported by substantial evidence. Id.
Defendant argues that plaintiff misinterprets the ALJ’s decision. Defendant
argues that the ALJ concluded that plaintiff could not constantly reach, meaning that
she could perform less than constant reaching. See Dkt. No. 16 at 14. Although the

18

ALJ does not explicitly state the level of reaching plaintiff could perform, since he stated
that plaintiff could not constantly reach, it is reasonably follows that the ALJ concluded
that plaintiff could perform next level of reaching, frequent reaching. “Frequent” is
defined as ‘occurring from one-third to two-thirds of the time” in the course of an eight-
hour workday[.]”” Elizabeth H. v. Comm'r of Soc. Sec., No. 3:19-CV-1020 (CFH), 2020
WL 4501495, at *5 (N.D.N.Y. Aug. 5, 2020) (quoting SSR 83-10, 1983 WL 31251, at *5,
6 (S.S.A. Jan. 1, 1983)). Further, defendant argues that the ALJ’s assessment of
plaintiff's reaching is supported by Dr. Lorensen’s and Dr. Mills’ opinions. See id. at 16.
Finally, defendant argues that the ALJ had no duty to “credit” his April 2017 decision
that plaintiff could occasionally reach because the Appeals Council vacated this
decision “and directed the ALJ to give further consideration to Plaintiff's RFC and issue
m|a new decision.” Id. at 17 n.8.
As discussed above, the ALJ reasonably relied on the opinion of Dr. Lorensen,
together with Dr. Mills, to conclude that plaintiff could frequently reach. The VE testified
that plaintiff's past relevant work of telephone answering service operator and customer
service representative could be performed by someone who could frequently reach;
thus, the ALJ’s RFC as it relates to reaching is supported by substantial evidence.
The Court further agrees with defendant’s argument that, because the Appeals Council
vacated the ALJ’s original decision, T at 48-53, the ALJ was under no duty to credit the
findings therein.

3. Failure to Develop Record

19

Plaintiff argues that the ALJ failed to satisfy his duty to develop the record as
medical records referenced a December 2017"! functional capacity evaluation and
various “insurance/work disability forms” that were not made a part of the administrative
transcript. See Dkt. No. 12 at 18. Plaintiff contends that, because the ALJ did not credi
Dr. Mills’ and PA Bowser’s opinions because of a lack of a function-by-function
° assessment, the ALJ’s failure to obtain the December 2017 evaluation and the
insurance or work disability forms is reversible error. See id. at 24-25. Plaintiff opines
that the ALJ’s “reliance upon gaps in the record and arbitrary rejection of a treating
other source’s medical opinion” amounts to error requiting remand for further
proceedings “based upon a completely developed record.” Dkt. No. 12 at 25.
Defendant argues that the ALJ satisfied his burden by inquiring of plaintiff's
representative at the hearing -- “long after the evidence in question was created” -- if the
record was complete. Dkt. No. 16 at 18. In addition, defendant contends that, although
plaintiff argues that the ALJ rejected Dr. Mills and PA Boswer’s opinions due to the lack
of a functional analysis, the ALJ concluded that Dr. Mills provided a “thorough
examination” of plaintiff and his RFC reflected Dr. Mills’ opined limitations. Id. at 19.
Further, defendant argues that the absence of the physical therapist’s functional
m| evaluation is not an “obvious gap” in the record as the “ALJ had the benefit of two
functional capacity evaluations completed by physicians.” Id. Finally, defendant assert
that plaintiffs argument that the ALJ would have decided differently had the functional
evaluation and insurance paperwork been included in the record is speculative as “the

1 Plaintiff provides that the record contains a treatment note from Dr. Garg, wherein he noted a
December 26, 2017, functional capacity evaluation that Physical Therapist Susan Giegold completed.
See Dkt. No. 12 at 23-24.
20

record already contained multiple statements that Plaintiff could only work two days per
week, and the ALJ reasonably rejected that notion.” Id.
The Court concludes that the ALJ did not commit reversible error in declining to
reach to sua sponte obtain a December 2017 functional capacity evaluation and
insurance/work disability forms referenced in treatment notes in the record, but not
contained within the record. Plaintiff provides that the record contains records from
(1) Dr. Conkright and Dr. Singh “indicating that ‘insurance/work disability forms’ were
completed on August 22, 2017 and March 8, 2018” (Dkt. No. 12 at 25 citing T at 1193,
1212); (2) Dr. Ubagharaju and Dr. Buchanan on December 7, 2016 that “[pJaperwork □□□
her employment completed” (Dkt. No. 12 at 25 citing T at 957), (3) Dr. Nijjar and
Dr.Wani, on February 6, 2017, “that a letter was provided for insurance regarding her
| ability to work only two days per week” (Dkt. No. 12 at 25 (citing T at 988)).
Although the ALJ retains a duty to develop the record where a claimant appears
with representation, the ALJ reasonably met this burden by inquiring of plaintiff's
representative whether the record was complete. See T at 63. Plaintiff's representative
affirmed that the record was complete. See id. However, even if the ALU may have
been better served by combing the record to discover the absence of these documents
thereafter seeking the documents from the providers or plaintiff, his failure to
explicitly request these documents does not amount to reversible error. The ALJ did no
breach his duty to develop the record because there was no obvious gap in the record.
“Where there are no obvious gaps in the administrative record, and where the ALJ
already possesses a 'complete medical history,’ the ALJ is under no obligation to seek

21

additional information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168
F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 2d Cir. 1996)).
Based on plaintiff's own description of these comments, the missing
“work/disability forms” appear to be redundant of the many documents in the record
plaintiff submitted relating to her No Fault Insurance evaluations. Plaintiff proposes that
if Physical Therapist Giegold’s full December 2017 functional capacity evaluation were
included in the record, the ALJ would have rendered a different opinion because the
ALJ “did not credit the opinions of Dr. Mills and PA Boswer due to the lack of a
functional analysis.” Dkt. No. 12 at 24. Plaintiff contends that the physical therapist's
full evaluation would “cure” this deficiency. Id. The Court disagrees. The record
already contained a functional capacity evaluation from Physical Therapist Giegold.
Moreover, it is unclear how the physical therapist's full functional capacity evaluation
would cure the ALJ’s concerns about an absence of function-by-function assessments
from Dr. Mills and PA Bowser, two entirely different medical providers. As it does not
appear that PT Giegold’s full functional capacity evaluation was before Dr. Mills or PA
Bowser for review such that it somehow impacted their assessments or that PT
Giegold’s functional capacity evaluation could supplement the ALJ’s concerns about the
| absence of a basis for Dr. Mills or BA Bowser’s conclusions regarding the number of
hours per week plaintiff could work, the Court finds unconvincing plaintiff's speculative
argument that this document would have altered the ALJ’s ultimate disability
determination. Indeed, the ALJ did not conclude that he reached his determination
because the record in full lacked a functional capacity evaluation, but that he reached

22

his assessments of those two medical providers’ specific conclusions based (in part) on
the fact that they did not perform function-by-function assessments. See T at 24.12
In addition, the ALJ committed no error in declining to affirmatively seek these
records beyond asking whether the record was complete because there is no gap in the
record. The ALJ reviewed many “insurance/work disability forms” that were available in
record, and insofar as these forms set forth an assessment on plaintiff's ability to
work part time, the ALJ concluded that such assessments were of limited force as they
were obtained pursuant to an assessment that uses differing standards than those
required by the SSA. As the Court discussed above, that conclusion was not reversible
error.

IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that plaintiff's Motion for Judgment on the Pleadings (Dkt. No. 12) is
DENIED; and it is further
ORDERED, that defendant's Motion for Judgment on the Pleadings (Dkt. No. 16)
is GRANTED, and that the determination of the Commissioner is AFFIRMED; and it is
| further
ORDERED, that the Clerk of the Court serve this Memorandum-Decision & Orde
on all parties in accordance with Local Rules.
IT IS SO ORDERED.

12 Moreover, as for the December 2017 functional capacity evaluation on was performed by a physical
therapist, that provider is not an acceptable medical source. See Dkt. No. 12 at 23-24. Thus, although
the physical therapist's opinion would need to be reviewed and assessed had it been included in the
record, it would not be entitled to any heightened degree of weight. See SSR 06-03p.
23

Dated: September 3, 2021
Albany, New York

Christian F. Hummel
U.S. Magistrate Judge

24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314124. Public record. Not legal advice.