Lafountain v. Kijakazi

NOUNRITTHEEDR SNT DAITSETSR DICISTT ORFIC NTE CWO YUORRTK

______________________________________________________________________

SHARI L.,

Plaintiff,

v. 8:20-CV-1266

(ATB)

KILOLO KIJAKAZI,

Defendant.

______________________________________________________________________

MARK A. SCHNEIDER, ESQ., for Plaintiff

LUIS PERE, Special Asst. U.S. Attorney for Defendant

ANDREW T. BAXTER, U.S. Magistrate Judge

MEMORANDUM-DECISION and ORDER

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

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

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

Local Rule 73.1, and the consent of the parties. (Dkt. Nos. 4, 5).

I. PROCEDURAL HISTORY

On November 26, 2018, plaintiff filed an application for Supplemental Security

Income (“SSI”), alleging disability beginning as of that date. (Administrative

Transcript (“T”) 218–24). Plaintiff’s application was denied initially on February 25,

2019. (T. 131–33). Plaintiff requested a hearing, which was held before

Administrative Law Judge (“ALJ”) Brian LeCours on February 14, 2020. (T. 31–83).

At the hearing, the ALJ heard testimony from medical expert Ira H. Hymoff, Ph.D., the

plaintiff, and vocational expert (“VE”) Brian Daly. (Id.). On March 2, 2020, the ALJ

issued a decision denying plaintiff’s claim. (T. 15-24). The ALJ’s decision became the

Commissioner’s final decision when the Appeals Council denied plaintiff’s request for

review on October 6, 2020. (T. 1-3).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

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

disability benefits must establish that he is “unable to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which

can be expected to result in death or which has lasted or can be expected to last for a

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

addition, the plaintiff’s

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

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

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

substantial gainful work which exists in the national economy, regardless

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

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

hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step process, set forth in 20 C.F.R. sections

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

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

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

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

significantly limits his physical or mental ability to do basic work

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

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

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

t[hCeo rmegmuilsastiioonnesr.] Iwf itlhl ec ocnlasiimdearn ht ihmas d siusacbhl eadn wimitphaoiurmt ceonnt,s tihdeering vocational

factors such as age, education, and work experience . . . . Assuming the

claimant does not have a listed impairment, the fourth inquiry is whether,

despite the claimant’s severe impairment, he has the residual functional

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

perform his past work, the [Commissioner] then determines whether there

is other work which the claimant can perform.

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

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

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

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

B. Scope of Review

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

whether the correct legal standards were applied and whether substantial evidence

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

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

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

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

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

administrative record. Id. However, this standard is a very deferential standard of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. FACTS

Plaintiff was 49 years old as of the date of the administrative hearing. (T. 47).

She had completed school up to the seventh grade, and could read and write “to a

limitation.” (T. 47–48). Plaintiff successfully passed the examination to obtain her

driver’s license, and could drive herself as needed the “majority of the time.” (T. 48).

She lived in a trailer with her friend and dogs. (T. 61, 63).

Plaintiff was most recently employed as a part-time home care aide to her mother.

(T. 48–49, 51). She was also previously employed as a hotel housekeeper, prep cook,

and dishwasher. (T. 67). Her kidney disease, back pain and breathing issues prevented

her from maintaining full-time employment. (T. 49). When overly exerted, plaintiff

became “really short of breath.” (T. 51). She experienced low back pain that radiated

into her legs. (T. 52). Her back pain was “steady,” but she got “comfort” out of pain

medication. (Id.). The hydrocodone that she took for back pain “slowed her down,”

but helped her get through the day. (T. 52–53). She did not take pain medication when

she had to drive. (T. 53). Plaintiff also testified that her medical appointments would

interfere with her ability to hold a job.

At home, plaintiff spent approximately seven hours out of the day sitting in a

recliner. (T. 54). When she cleaned the dishes, she had to sit and take a break after ten

minutes of standing. (Id.). Bending over “bothered” her. (Id.). Plaintiff testified that

she was “not supposed to lift anything over ten pounds.” (T. 60). Climbing stairs

caused plaintiff to become short of breath. (T. 63). Her roommate performed most of

the household responsibilities and chores. (T. 55). He also accompanied her grocery

shopping, in order to lift heavy items. (T. 55–56). Plaintiff suffered from anxiety,

which “kicked in” when she went shopping. (T. 56). The anxiety exacerbated her

breathing. (Id.). She experienced panic attacks a couple times a week. (T. 57). She

took naps every day to get her mind “off things.” (T. 61). Plaintiff was not treating

with any mental health providers. (T. 57). She denied having trouble getting along with

people or following instructions. (T. 64).

Despite her breathing problems, plaintiff smoked “less than a pack” of cigarettes

on a daily basis. (T. 57–58). This was down from her previous rate of smoking

approximately two packs of cigarettes a day. (T. 59). She was trying to quit. (T.

57–59). Plaintiff had her left kidney removed within the past year due to kidney cancer,

which also prompted her to quit smoking. (T. 59). She smoked marijuana “a couple

times a week.” (T. 58).

IV. THE ALJ’S DECISION

After reviewing the procedural history of plaintiff’s application and stating the

applicable law, the ALJ found that plaintiff had not engaged in substantial gainful

activity (“SGA”) since her application date. (T. 17). At step two of the sequential

evaluation, the ALJ found that plaintiff had the following severe impairments: chronic

obstructive pulmonary disease (COPD), spine disorder, chronic kidney disease (CKD),

obesity, borderline intellectual functioning, anxiety disorder, and depressive disorder.

(Id.). At step three, the ALJ found that plaintiff did not have an impairment or

combination of impairments that met or medically equaled the severity of a Listed

Impairment. (T. 15). In doing so, the ALJ specifically considered several listings,

including Listings 3.02 (Chronic Respiratory Disorders), 6.05 (Chronic Kidney

Disease), 6.06 (Nephrotic Syndrome), 6.09 (Complications of Chronic Kidney Disease),

12.04 (Depressive, Bipolar and Related Disorders), 12.06 (Anxiety and Obsessive-

Compulsive Disorders) and 12.11 (Neurodevelopmental Disorders).

At step four, the ALJ found that plaintiff had the RFC for light work, as defined

in 20 C.F.R. §§ 404.1567(b), except the work could only require her to occasionally

balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but never climb

ladders, ropes or scaffolds (although she could climb on to two steps of a stepladder).

(T. 19). Plaintiff was further limited to working in an environment in which she was no

more than occasionally exposed to extreme cold and pulmonary irritants such as strong

fumes, odors, dust and gasses; and never exposed to hazardous conditions such as

unprotected heights and dangerous machinery (although she could occasionally drive).

(Id.). Last, the ALJ limited plaintiff to performing unskilled tasks, defined as work

short period of time. (Id.). She could perform work involving simple work-related

decisions with few workplace changes. (Id.).

Next, the ALJ found that plaintiff was capable of performing her prior work as a

housekeeper/cleaner, because it did not require the performance of work-related

activities precluded by plaintiff’s residual functional capacity. (T. 23). Furthermore,

using the Medical Vocational Guidelines as a “framework,” and the VE’s testimony, the

ALJ found that plaintiff was “capable of making a successful adjustment to other work

that exists in significant numbers in the national economy.” (T. 23–24). Thus, the ALJ

found that plaintiff was not disabled. (T. 24).

V. ISSUES IN CONTENTION

Plaintiff raises the following arguments:

1. Plaintiff’s COPD met, or was medically equivalent to, the requirements of

Listing 3.02A. (Plaintiff’s Brief (“Pl.’s Br.”) at 22–24) (Dkt. No. 17).

2. The ALJ improperly evaluated the medical source opinions of record.

(“Pl.’s Br.”) at 14–17).

3. Plaintiff was unable to work because of limitations caused by the

combination of her impairments. (Pl.’s Br. at 17–27).

4. The ALJ did not correctly evaluate plaintiff’s subjective statements

concerning her symptoms and limitations. (Pl.’s Br. at 27-31).

5. The court should order that plaintiff’s “prior claim” be reopened. (Pl.’s Br.

at 31–32).

The Commissioner contends that the ALJ sufficiently evaluated the evidence of record,

and that his decision was supported by substantial evidence. (Defendant’s Brief

with defendant and will dismiss the complaint.

DISCUSSION

VI. LISTED IMPAIRMENT

A. Legal Standard

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. Pratt v. Astrue, 7:06-CV-551

(LEK/DRH), 2008 WL 2594430 at *6 (N.D.N.Y. 2008) (citing Sullivan v. Zebley, 493

U.S. 521, 530 (1990)). If a plaintiff’s “impairment ‘manifests only some of those

criteria, no matter how severely,’ such impairment does not qualify.” Id. 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 v.

Zebley, 493 U.S. at 531 (emphasis added).

B. Application

Plaintiff argues that the results of a pulmonary function test performed on

February 19, 2019 by consultative examiner Nader Wassef, M.D. were “so close” to

satisfying the listing requirements of 3.02A, that she should be considered to have met

said listing. (Pl.’s Br. at 22–24). For the following reasons, the court finds that

plaintiff’s interpretation of the listing requirements under Section 3.02A as set forth in

her brief are flawed. Furthermore, the record reflects that the ALJ properly determined

Section 3.02 of the Listings uses spirometry results to determine whether an

impairment meets or medically equals the requirements of the Listings. 20 C.F.R. Pt.

404, Subpt. P, App. 1, § 3.00(E)(1). A plaintiff’s highest FEV value is used to

1

establish a severe impairment under Listing 3.02A. Id. Here, plaintiff was measured to

be 5 feet, or 60 inches, tall without shoes on the date of the pulmonary function test.1

(T. 676). Thus, her highest FEV was required to be less than or equal to 1.05 to meet

1

the requirements of Listing 3.02A. According to the test results recorded by Dr.

Wassef, plaintiff’s highest FEV was 1.34 after the administration of bronchodilators,

1

which was well above the required level of 1.05. (T. 676). Accordingly, the ALJ

correctly determined that plaintiff’s impairment did not meet or medically equal the

requirements of Listing 3.02A, and remand is not warranted on this basis. See Drake v.

Comm’r of Soc. Sec., No. 15-CV-5604, 2018 WL 1556882, at *8 (E.D.N.Y. Mar. 29,

2018).

VII. RFC/EVALUATING MEDICAL EVIDENCE

A. Legal Standards

1. RFC

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

1Plaintiff argues that it is “reasonable to assume” that plaintiff is 5 feet 1 inch tall, based on the

various measurements taken by different medical sources throughout 2018 and 2019. (Pl.’s Br. at 23 n.

9). The court does not find this argument persuasive, and agrees that the appropriate height to use was

that taken by Dr. Wassef, contemporaneous with plaintiff’s pulmonary function test. (T. 676). In any

event, plaintiff still would not have met the listing requirements of 3.02A had the ALJ utilized the

height that is proposed by plaintiff.

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

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

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

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

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

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

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

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

The regulations regarding the evaluation of medical evidence have been amended

for claims filed after March 27, 2017, and several of the prior Social Security Rulings,

including SSR 96-2p, have been rescinded. According to the new regulations, the

Commissioner “will no longer give any specific evidentiary weight to medical opinions;

this includes giving controlling weight to any medical opinion.” Revisions to Rules

Regarding the Evaluation of Medical Evidence (“Revisions to Rules”), 2017 WL

168819, 82 Fed. Reg. 5844, at 5867–68 (Jan. 18, 2017), see 20 C.F.R. §§ 404.1520c(a),

416.920c(a). Instead, the Commissioner must consider all medical opinions and

“evaluate their persuasiveness” based on the following five factors: supportability;

consistency; relationship with the claimant; specialization; and “other factors.” 20

C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c).

Although the new regulations eliminate the perceived hierarchy of medical

sources, deference to specific medical opinions, and assigning “weight” to a medical

opinion, the ALJ must still “articulate how [he or she] considered the medical opinions”

and “how persuasive [he or she] find[s] all of the medical opinions.” Id. at

§§ 404.1520c(a) and (b)(1), 416.920c(a) and (b)(1). The two “most important factors

for determining the persuasiveness of medical opinions are consistency and

source rule. Revisions to Rules, 82 Fed. Reg. 5844-01 at 5853. An ALJ is specifically

required to “explain how [he or she] considered the supportability and consistency

factors” for a medical opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).

With respect to “supportability,” the new regulations provide that “[t]he more

relevant the objective medical evidence and supporting explanations presented by a

medical source are to support his or her medical opinion(s) or prior administrative

medical finding(s), the more persuasive the medical opinions or prior administrative

medical finding(s) will be.” Id. at §§ 404.1520c(c)(1), 416.920c(c)(1). The regulations

provide that with respect to “consistency,” “[t]he more consistent a medical opinion(s)

or prior administrative medical finding(s) is with the evidence from other medical

sources and nonmedical sources in the claim, the more persuasive the medical

opinion(s) or prior administrative medical finding(s) will be.” Id. at §§ 404.1520c(c)(2),

416.920c(c)(2).

Under the new regulations an ALJ must consider, but need not explicitly discuss,

the three remaining factors in determining the persuasiveness of a medical source’s

opinion. Id. at §§ 404.1520c(b)(2), 416.920c(b)(2). However, where the ALJ has

found two or more medical opinions to be equally well supported and consistent with

the record, but not exactly the same, the ALJ must articulate how he or she considered

those factors contained in paragraphs (c)(3) through (c)(5). Id. at §§ 404.1520c(b)(3),

416.920c(b)(3).

Plaintiff contends that the ALJ failed to properly evaluate the medical source

opinions of record under the new regulations, which specifically require an ALJ to

explain how he considered the “supportability” and “consistency” factors for a medical

opinion. (Pl.’s Br. at 14–17). In reaching his RFC determination, the ALJ considered a

number of medical opinions related to plaintiff’s physical and mental limitations. On

February 19, 2019, consultative examiner Dr. Wassef performed a physical examination

of the plaintiff. (T. 670–74). Among his many findings, he observed that plaintiff

appeared to be in no acute distress, with a normal gait and the ability to walk on her

heels and toes without difficulty. (T. 671). Plaintiff exhibited a full squat and a normal

stance. (Id.). She did not require help changing for the examination or getting on and

off the examination table, and was able to “rise from the chair without difficulty.” (Id.).

Dr. Wassef also noted that, upon examination, plaintiff displayed an unlimited range of

motion in her lumbar spine. (T. 672). Neurologically, plaintiff exhibited full strength

in her upper and lower extremities. (Id.). Her hand and finger dexterity was intact,

with full grip strength. (T. 673). Based on his examination findings, Dr. Wassef

opined that plaintiff should “not be exposed to extremes in temperature, second hand

smoke, perfumes, chemicals, or any type of respiratory irritants.” (Id.). He further

opined that plaintiff had “moderate” limitations in regards to “standing, walking,

climbing and descending stairs, bending, squatting, lifting, sitting, and operating foot

controls.” (Id.).

The ALJ explicitly considered Dr. Wassef’s examination findings and medical

Wassef’s “vague opinion” regarding moderate limitations in standing, walking, and

sitting to be “unpersuasive beyond [the] RFC finding.” (Id.). The ALJ noted that Dr.

Wassef’s examination findings were at odds with his opined limitations, to the extent

Dr. Wassef found plaintiff to have “normal gait, intact motor strength, and generally

unremarkable musculoskeletal findings,” which were consistent with “light function.”

(Id.).

Next, the ALJ considered the February 21, 2019 opinion of state agency medical

consultant M. Vazquez-Gonzalez, M.D. (T. 91–92). Upon review of plaintiff’s medical

records and Dr. Wassef’s opinion, Dr. Vazquez-Gonzalez opined that plaintiff could

perform the equivalent of light work, with the exception that plaintiff should avoid

“even moderate exposure to pulmonary irritants,” due to her COPD. (T. 21). Dr.

Vazquez-Gonzalez’s opinion was subject to reconsideration at the initial review level

by state agency consultant M. Angelotti, M.D. (T. 104–06). On July 25, 2019, Dr.

Angelotti generally affirmed Dr. Vazquez-Gonzalez’s findings, concluding that plaintiff

had the capacity to perform light work with the exception of limiting her to

“occasional” exposure to fumes, odors, and gasses in the context of her COPD. (T.

104–05).

Upon review, the ALJ found the opinions of Dr. Vazquez-Gonzalez and Dr.

Angelotti to be “generally persuasive.” (T. 21). The ALJ acknowledged that plaintiff

had a kidney removed during the relevant period, as well as her consistent reports of

lower back pain. (Id.). However, the ALJ also noted that plaintiff did not require the

issue demonstrated “mild” degenerative changes. The ALJ also noted that, unlike Dr.

Wassef, plaintiff’s primary care provider did not perform range of motion or other

testing to confirm the extent of plaintiff’s impairment. (Id.). Based on these factors,

the ALJ found the state agency consultants’ opinions to be consistent with and

supported by the record. (Id.).

The record also contains a January 29, 2020 medical source statement (“MSS”)

prepared by plaintiff’s treating provider, nurse practitioner (“NP”) Jodi Hamel. (T.

792–96). NP Hamel identified plaintiff’s diagnosis of degenerative disc disease of the

lumbar spine, noting her “poor” prognosis and symptoms including low back pain and

“severe” leg pain, “especially with walking/standing.” (T. 792). NP Hamel indicated

that plaintiff’s objective signs included “pain with range of motion, lifting, [and]

walking.” (Id.). With respect to plaintiff’s functional limitations, NP Hamel opined

that plaintiff could sit for one to two hours at a time, and could only stand for ten

minutes at a time before needing to change positions. (T. 793). In total, plaintiff could

sit, stand, and/or walk for less than two hours out of an eight hour workday. (Id.).

Plaintiff required a job that permitted shifting positions at will, and, according to the

MSS, would also need to include periods of walking every minute during the workday.

(Id.). Plaintiff would require unscheduled breaks every hour during the workday due to

her muscle weakness, chronic fatigue, and pain. (T. 793–94). NP Hamel further opined

that plaintiff could occasionally lift less than ten pounds, and never lift twenty pounds

or more. (T. 794). She could rarely climb stairs, and never twist, stoop/bend,

even “low stress” work, and that plaintiff’s impairments and treatment would cause her

to be absent from work more than four days per month. (T. 795). Last, NP Hamel

opined that plaintiff’s COPD and “social anxiety” further limited her ability to work.

(T. 796).

The ALJ considered NP Hamel’s MSS, concluding that the opinion was not

persuasive. (T. 21). He cited to evidence that plaintiff was “doing well” after her

kidney procedure, and that her COPD was well controlled with medication. (Id.). He

further noted that plaintiff routinely denied fatigue. (Id.). The ALJ also recognized that

plaintiff was prescribed narcotic pain medication for significant lower back pain, but

compared this with her mild degenerative changes upon diagnostic study. (Id.).

Furthermore, the ALJ cited to plaintiff’s decision to forgo physical therapy or pain

management after the alleged onset date, and the fact that plaintiff did not treat with any

specialist for her back issues. (Id). For these reasons, the ALJ found NP Hamel’s

opinion to lack consistency with or support from the record. (Id.).

For the following reasons, the court finds that the ALJ properly considered the

physical medical opinions of record, and his conclusions regarding their persuasiveness

were supported by substantial evidence. At the outset, there was nothing improper in

the ALJ’s conclusion that the opinions of Dr. Vazquez-Gonzalez and Dr. Angelotti

were more persuasive than those produced by the examining sources of record. It is

well settled that, under both the old and new regulations concerning the evaluation of

medical evidence, an ALJ may rely on the opinion of a non-examining state agency

WL 1198359, at *7 (N.D.N.Y. Mar. 30, 2021) (acknowledging that under the old

regulations, the report of a non-examining state agency medical consultant may

constitute substantial evidence under the appropriate circumstances); see also Revisions

to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819 at *5853

(discussing how under the new regulations, the opinions of all medical sources,

including non-examining medical consultants, will be held to the same standard of

persuasiveness of content). Here, the ALJ specifically identified other record evidence

with which the state agency consultants’ opinions were consistent, including plaintiff’s

mild diagnostic findings, her ability to ambulate without the use of an assistive device,

and the lack of restrictive lumbar range of motion examinations throughout the record.

(T. 21) (See 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2) (Consistency)). The ALJ

also, although not as explicitly, cited to evidence which weighed into his consideration

of the supportability factor, including the fact that Dr. Vazquez-Gonzalez’s opinion was

affirmed by Dr. Angelotti upon reconsideration, as well as their reliance on the

examination findings of Dr. Wassef. (Id.). See 20 C.F.R. §§ 404.1520c(c)(1),

416.920c(c)(1) (Supportability)).

With respect to Dr. Wassef’s medical source statement, the court does not find

the ALJ’s evaluation of this opinion to be flawed, or at odds with his ultimate RFC

determination. At the outset, the ALJ properly noted that Dr. Wassef’s opinion was

vague to the extent that it referenced “moderate limitations.” (T. 21). He also

appropriately noted the inconsistencies between Dr. Wassef’s largely benign

See Amanda S. v. Saul, No. 5:18-CV-00473 (NAM), 2019 WL 3927452, at *11

(N.D.N.Y. Aug. 20, 2019) (citing Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir. 2013)

(upholding ALJ’s RFC determination where he “rejected” physician’s opinion but

relied on physician’s findings and treatment notes); Rollain v. Berryhill, No.

1:17-CV-00235, 2019 WL 1466296, at *4 (W.D.N.Y. Apr. 3, 2019) (“[T]o the extent

that any consultative examiners provided internally inconsistent opinions, it is the role

of the ALJ to reconcile such inconsistencies.”).

Moreover, plaintiff’s contention that Dr. Wassef’s opinion does not support the

ALJ’s ultimate RFC determination is unpersuasive, as the courts in this district have

frequently found that moderate limitations to a claimant’s ability to walk, sit, or stand

for prolonged periods are not inconsistent with an RFC for light work. See Moore v.

Comm’r of Soc. Sec., No. 1:16-CV-270 (DJS), 2017 WL 1323460, at *8 (N.D.N.Y.

Apr. 10, 2017) (“[M]oderate limitations for sitting, standing, walking, bending,

climbing stairs, and lifting or carrying heavy objects . . . is consistent with light

work.”); Burpoe v. Berryhill, 18 Civ. 3168, 2019 WL 3329818, at *15 (S.D.N.Y. July

24, 2019) (finding “that plaintiff was unable to engage in repetitive overhead activities,

could not lift objects over 25 pounds and could not engage in prolonged walking,

bending, standing or sitting” to be “limitations consistent with a light RFC”); George

A. v. Comm’r of Soc. Sec., 20-CV-0691, 2021 WL 2102527, at *8 (W.D.N.Y. May 25,

2021) (finding that the plaintiff had failed to establish that moderate limitations in

prolonged sitting, prolonged standing, and walking precluded the performance of light

Thus, it was not improper for the ALJ to adopt the opinions of the consulting

doctors into his RFC over the more restrictive opinion of NP Hamel. Unlike those

doctors, NP Hamel provided an opinion which proved to be inconsistent with plaintiff’s

longitudinal treatment history–primarily, NP Hamel’s own treatment notes. During the

relevant period, NP Hamel’s records generally indicated that plaintiff’s back pain was

effectively treated by her pain medication. (T. 572, 580, 695, 700, 745, 800). When

plaintiff did complain of increased back pain, the record reflects that this was usually

because she had stopped taking her medication (T. 566), or due to a flare-up that was

sufficiently addressed by an increase in dosage of pain medication (T. 562–564, 559,

665). NP Hamel noted that plaintiff “no longer wanted to get injections” in conjunction

with plaintiff’s report that her pain medication was “helping much better.” (T. 665).

Furthermore, physical examinations performed by NP Hamel were largely

unremarkable throughout the relevant time frame, and do not support the restrictive

limitations she subsequently imposed. (T. 560, 563, 666, 690, 693, 696, 701, 746, 749,

801, 810). See Roman v. Colvin, 278 F. Supp. 3d 671, 675 (W.D.N.Y. 2017) (citing

Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983)) (“The Secretary is entitled to

rely not only on what the record says, but also on what it does not say.”).

Moreover, the ALJ pointed out that Hamel could not point to any objective

clinical observations, such as range of motion tests or diagnostic imaging, to support

her restrictive findings, which otherwise contradicted evidence of plaintiff’s full range

of motion in the lumbar spine, and mild degenerative disc disease, illustrated elsewhere

363682, at *10 (S.D.N.Y. Jan. 29, 2021) (“As to the required factors, the new rules

provide that, for supportability, the strength of a medical opinion is increased as the

relevance of the objective medical evidence and explanations increase.”). Accordingly,

this court finds no error in the ALJ’s evaluation of the medical evidence as it pertained

to plaintiff’s ability to perform the postural limitations of light work.

Plaintiff further contests the ALJ’s RFC determination as it relates to

environmental limitations. Specifically, plaintiff argues that the ALJ erred in limiting

plaintiff to no more than occasional exposure to pulmonary irritants. (Pl.’s Br. at 24).

The parties dispute whether Dr. Wassef’s opinion supports the RFC in this respect.2 (T.

673). Even assuming that Dr. Wassef’s opinion called for plaintiff to never be exposed

to pulmonary irritants, his was not the only opinion of record on this issue. Both Dr.

Vazquez-Gonzalez and Dr. Angelotti opined that plaintiff was less restricted from

exposure to pulmonary irritants; in fact it appears that the ALJ adopted Dr. Angelotti’s

opinion that plaintiff be limited to “occasional” exposure. (T. 92, 105).

In any event, the court finds that any error by the ALJ in assessing plaintiff’s

environmental limitations was harmless. “Where application of the correct legal

principles to the record could lead only to the same conclusion, there is no need to

require agency reconsideration.” Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)

2Defendants interpret Dr. Wassef’s opinion to assert that plaintiff should not be exposed to

“extremes” of any type of respiratory irritants. (Def.’s Br. at 9). Plaintiff contends that this is an

absurd interpretation of Dr. Wassef’s opinion, which states in relevant part, “[C]laimant should not be

exposed to extremes in temperature, second hand smoke, perfumes, chemicals, or any type of

respiratory irritants.” (Plaintiff’s Reply Brief at 1) (Dkt. No. 23) (emphasis added).

Here, based on the VE’s testimony, the ALJ concluded that plaintiff could perform

several jobs which, according to the Dictionary of Occupational Titles, would not

expose him to the types of environmental factors contemplated by Dr. Wassef. (T. 24).

See DICOT 222.687-022 Routing Clerk, 1991 WL 672133; DICOT 699.685-026

Power-Screwdriver Operator, 1991 WL 678865;3 DICOT 249.587-018 Document

Preparer, 1991 WL 672349; DICOT 237.367-014 Call-out Operator, 1991 WL 672186;

DICOT 239.687-014 Tube Operator, 1991 WL 672235; DICOT 237.367-046

Telephone Quotation Clerk,4 1991 WL 672194; DICOT 249.587-014 Cutter-and-

Paster,5 1991 WL 672348. Thus, any more restrictive “environmental limitations

imposed . . . would not have changed the ALJ’s step five determination.” Kenyon v.

Comm’r of Soc. Sec., No. 16-CV-0260 (WBC), 2017 WL 2345692, *5 (N.D.N.Y. May

30, 2017) (“any error to include environmental limitations in the RFC determination

would be harmless error because the positions identified by the vocational expert do not

require exposure to atmospheric conditions such as dust, fumes, and gases”); Rafferty v.

Colvin, No. 12-CV-1554 (DNH), 2014 WL 1875339, *11 (N.D.N.Y. May 9, 2014)

(“plaintiff’s need to avoid concentrated exposure to respiratory irritants has only a

3In what appears to have been a typographical error, the ALJ referenced the wrong DICOT code

numbers with respect to the occupations of Routing Clerk and Power-Screwdriver Operator in his

written decision. (T. 24). The VE cited the correct DICOT code numbers during his testimony. (T.

76).

4The ALJ and VE alternatively refer to this occupation as “Telephone Information Clerk.” (T.

24, 77).

5The ALJ and VE alternatively refer to this occupation as “Trimmer.” (T. 24, 77).

required on this basis.

Plaintiff also maintains that the ALJ erred in assessing the opinion evidence of

record relative to plaintiff’s mental limitations, resulting in an RFC that was not

supported by substantial evidence. Specifically, plaintiff argues that the ALJ erred by

not explicitly accounting for the mild-to-moderate limitations assessed at step three of

the sequential process, in the RFC determination. However, it is well settled that an

ALJ is not obligated to explicitly incorporate his step three findings into the RFC. See

Reeves v. Comm’r of Soc. Sec., No. 19-CV-775S, 2020 WL 4696589, at *3 (W.D.N.Y.

Aug. 13, 2020) (“The ALJ may take the same information finding a moderate limitation

for ‘paragraph B’ criteria and conclude that Plaintiff's functional capacity is not

impaired by that moderate limitation.”); Poole v. Saul, No. 3:19-CV-00927, 2020 WL

2611230, at *16 (D. Conn. May 22, 2020) (“[A]ssessments of limitations and

restrictions from mental impairment at steps two and three are not an RFC assessment. .

. . to the extent Plaintiff contends that the ALJ was required to expressly include the

moderate limitations (in concentration, persistence and pace) identified at Step 3 in the

RFC determination, such argument lacks merit because the ALJ’s findings at step 3 of

the sequential analysis are not an RFC determination . . . .”) (internal quotation marks

and citations omitted). Accordingly, the ALJ did not per se err to any extent he failed to

explicitly incorporate all of his step three findings into the RFC determination.

Furthermore, the Second Circuit has recognized that moderate limitations in

work related functioning do not preclude a plaintiff from performing unskilled work.

indicated that she had anything more than moderate limitations in her work-related

functioning, and most reported less severe limitations.”); Whipple v. Astrue, 479 Fed.

App’x 367, 370 (2d Cir. 2012) (consultative examiners’ findings that plaintiff’s

depression caused moderate limitations in social functioning ultimately supported the

ALJ’s determination that plaintiff was capable of performing work that involved simple

tasks and allowed for a low-stress environment). This standard is reflected throughout

the district courts. Martinez v. Comm’r of Soc. Sec., No. 3:16-CV-0908, 2017 WL

2633532, at *7 (N.D.N.Y. June 15, 2017) (finding that an RFC determination for

unskilled work is not necessarily inconsistent with moderate mental limitations and

noting that the Second Circuit has recognized that moderate mental limitations do not

prevent a claimant from performing unskilled work); Wells v. Colvin, 87 F. Supp. 3d

421, 435–36 (W.D.N.Y. 2015) (finding that moderate limitations, even in the basic

mental functions of unskilled work, are not inconsistent with the ability to perform

unskilled work). Thus, the court finds no apparent inconsistencies between plaintiff’s

mild-to-moderate mental limitations and the ALJ’s conclusion that she could perform

unskilled work.

Finally, the court finds that the ALJ did adequately incorporated his findings

concerning plaintiff’s mental impairments into the RFC determination. The ALJ

explicitly considered the opinion evidence of record, rejecting some of the less

restrictive findings of consultative examiner Dante Alexander, Psy.D. and state agency

consultant H. Ferrin, Ph.D. (T. 22). Ultimately, the ALJ adopted the more restrictive

with specific, nonexertional limitations reflecting Dr. Hymoff’s opinion. To this end,

the court finds that the ALJ adequately accounted for plaintiff’s severe impairment of

borderline intellectual functioning, as well as her moderate limitations in attention,

concentration and pace; understanding, remembering, or applying information; and

adapting or managing oneself; in limiting her to (1) performing unskilled tasks defined

as work requiring little or no judgment to do simple duties that can be learned on the

job in a short period of time, (2) work involving simple work-related decisions, and (3)

few workplace changes. As such, remand is not warranted on this basis.

VIII. EVALUATION OF SUBJECTIVE SYMPTOMS

A. Legal Standards

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

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

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

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

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

[their] pain or other symptoms.’” Del Carmen Fernandez v. Berryhill, No. 18-CV-326,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

alia 20 C.F.R. § 404.1529(a); Genier v. Astrue, 606 F.3d at 49) (alterations in original).7

If the objective medical evidence does not substantiate the claimant’s symptoms,

the ALJ must consider the other evidence. Cichocki v. Astrue, 534 F. App’x 71, 76 (2d

Cir. 2013) (citing superceded SSR 96-7p). The ALJ must assess the claimant’s

subjective complaints by considering the record in light of the following symptom-

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

intensity of claimant’s symptoms; (3) precipitating and aggravating factors; (4) type,

dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5)

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

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

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

remain consistent with the terms as used by the Commissioner.

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

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

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

relieve symptoms; and (7) any other factors concerning claimant’s functional

limitations and restrictions due to symptoms. 20 C.F.R. §§ 404.1529(c)(3),

416.929(c)(3).

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

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

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

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

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

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

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

76 (quoting Mongeur v. Heckler, 722 F.2d at 1040).

B. Application

The ALJ found that plaintiff’s “medically determinable impairments could

reasonably be expected to cause the alleged symptoms; however, the claimant’s

statements concerning the intensity, persistence and limiting effects of these symptoms

are not fully supported for the reasons explained in this decision.” (T. 20). Plaintiff

challenges this conclusion, arguing that her subjective complaints of disability should

have been fully credited because “none” of the examining physicians opined that she

exaggerated her impairments and limitations, and due to a lack of medical evidence

indicating that plaintiff “did not accurately describe her symptoms and limitations to the

ALJ or the medical providers.” (Pl.’s Br. at 33).

ALJ’s evaluation of plaintiff’s subjective complaints, which is supported by record-

based explanations throughout the ALJ’s written decision. See Stanton v. Astrue, 370

F. App’x 231, 234 (2d Cir. 2010) (A court may not “second-guess” the ALJ’s decision

to discount a claimant’s statements about her symptoms “where the ALJ identified

specific record-based reasons for [her] ruling[.]”). The ALJ recognized plaintiff’s

complaints of disabling back pain and the corresponding limitations. However, the

ALJ found that these complaints were inconsistent with imaging of plaintiff’s spine–

showing mild findings–and the apparent management of her pain with medication

prescribed by her primary care provider. (T. 19–21). The ALJ also considered

plaintiff’s reported difficulty breathing compared to self-reports to medical providers

that her COPD was “well controlled,” and her denial of fatigue, chest pain, or shortness

of breath. (T. 20). Furthermore, the ALJ recognized plaintiff’s kidney cancer diagnosis

and the surgical removal of one of her kidneys. (Id.). He noted that plaintiff reported

to be “feeling good” at her surgical follow-up appointment, and was continuing to do

well in relation to her chronic kidney disease as of January 2020. (Id.). This aligns

with plaintiff’s hearing testimony that she did not feel any worse since the surgery. (T.

59–60).

An ALJ’s evaluation of a social security claimant’s subjective symptoms “is

entitled to substantial deference by a reviewing court.” Rivera v. Comm’r of Soc. Sec.,

368 F. Supp. 3d 626, 645 (S.D.N.Y. 2019); see also Aponte v. Sec’y, Dep’t of Health &

Human Servs. of U.S., 728 F.2d 588, 591 (2d Cir. 1984) (“If the [ALJ’s] findings are

discount a claimant's subjective complaints of pain.”). In light of the substantial

deference owed to the ALJ’s determination on this issue, the court finds no error in the

evaluation of plaintiff’s subjective symptoms that would warrant remand.

IX. REOPENING PRIOR APPLICATION

A. Legal Standards

“Where a claimant seeks to reopen a claim where a final decision has been

rendered, the Commissioner may refuse such as request under the doctrine of res

judicata.” Saxon v. Astrue, 781 F. Supp. 2d 92, 99 (N.D.N.Y. 2011) (citing Dunn v.

Astrue, No. 08-CV-0704, 2010 WL 376390, at *3 (W.D.N.Y. Jan. 27, 2010)). “The

Commissioner’s decision not to reopen a prior determination is not a final decision for

the purposes of § 405(g), and thus federal courts lack jurisdiction to review the

administrative decision not to reopen a previous claim for benefits.” Id. (citing Byam v.

Barnhart, 336 F.3d 172, 179 (2d Cir. 2003)). “There are two circumstances in which

the federal courts may review the Commissioner’s decision not to reopen a disability

application: (1) where the Commissioner has constructively reopened the case; and (2)

“where the claimant has been denied due process.” Id. (quoting Byam, 336 F.3d at 179).

Although an ALJ can be deemed to have constructively reopened an application where

he reviews the entire record and renders a decision on the merits, “[a] matter is not

constructively reopened when the ALJ merely discusses prior proceedings and evidence

to describe a claimant’s background.” Id. (citing Grant v. Shalala, No. 93-CV-0124,

1995 WL 322589, at *7 (W.D.N.Y. Mar. 13, 1995)).

Plaintiff argues that this court should “order the Commissioner to reopen

[plaintiff’s] prior claim” for disability benefits, because plaintiff’s prior application was

denied “within the one-year period required for automatic reopenings[,]” and further

because there is “good cause” to do so pursuant to 20 C.F.R. §§ 416.488 and 416.489.

(Pl.’s Br. at 33–34). At the outset, plaintiff’s request is misplaced because it seeks to

have this court review the merits of the ALJ’s failure to reopen her prior claim, without

first addressing the jurisdictional issue presented by her request. Accordingly, the court

must first determine whether it has subject matter jurisdiction to review the ALJ’s

decision not to reopen her prior application in the first place.

Plaintiff’s request was rather vague at the administrative level. On February 7,

2020, plaintiff’s counsel submitted a pre-hearing brief to the ALJ. (T. 379–81). In that

brief, counsel requested that the ALJ “determine that [plaintiff] has been disabled since

her 2017 application date.” (T. 381). He stated it was his belief that the ALJ could

“reopen this prior claim because [plaintiff] re-applied within one year after that denial.”

(Id.).

At the February 14, 2020 administrative hearing, the ALJ acknowledged

plaintiff’s request to reopen plaintiff’s April 5, 2017 prior application. (T. 34). The

ALJ questioned the existence of an interim application submitted by plaintiff on

February 8, 2018, and whether the ALJ could reopen “two applications back.” (Id.).

Plaintiff’s counsel stated his belief that the request was proper as long as the new

application was from within one year, and that based on his review of the record he

acknowledged that plaintiff lost the appeal relating to her March 6, 2015 application,

thus the reopening of that application would be barred by the doctrine of res judicata.

(T. 35). The ALJ then stated that he was going to “reserve decision” on the reopening

issue. (Id.).

The ALJ’s March 5, 2020 decision does not explicitly address the plaintiff’s

request to reopen any prior applications. (T. 15–24). However, it is apparent that the

ALJ impliedly denied plaintiff’s request to do so, to the extent he found that plaintiff

had not been under a disability since November 26, 2018, the date of her pending

application. (T. 24). In a subsequent request for review of the hearing decision filed

with the Appeals Council, plaintiff’s counsel did not specifically raise this issue, but

generally relied on his pre-hearing brief to the ALJ. (T. 216).

As previously discussed, the court is precluded from reviewing the ALJ’s

decision not to reopen plaintiff’s prior applications unless the Commissioner

constructively reopened those cases, or if plaintiff was denied due process. Notably,

plaintiff does not allege that either of these two exceptions apply to the instant matter.

See Mushtare v. Astrue, No. 7:06-CV-1055 (LEK/VEB), 2009 WL 8633200, at *13

(N.D.N.Y. July 27, 2009), report and recommendation adopted, 2009 WL 2496453

(N.D.N.Y. Aug. 12, 2009) (considering plaintiff’s failure to argue either of the relevant

exceptions as a basis for finding that the court lacked jurisdiction to review the denial).

Moreover, the record does not reflect that plaintiff would be successful had she pursued

either argument. With respect to constructive reopening, the ALJ neither reviewed

the ALJ merely discussed the existence of plaintiff’s prior applications, and considered

whether he would even have the authority to reopen them. At most, the ALJ indicated

that he would look into the request to reopen by plaintiff. Nonetheless, it is clear that

the ALJ’s ultimate disability determination was limited to the plaintiff’s most recent

application, alleging disability beginning November 26, 2018. On these facts, the court

does not find that the ALJ constructively reopened any of plaintiff’s prior disability

claims. See Benner v. Comm’r of Soc. Sec., No. 18-CV-6679, 2020 WL 6548539, at *4

(W.D.N.Y. Nov. 6, 2020) (finding the ALJ did not constructively reopen plaintiff’s

prior SSI application where the ALJ “merely discussed the prior SSI applications and

mused whether an SSI claim was filed in relation to the instant application and, if not,

why.”).

Nor does the record support that plaintiff was denied due process. “Due process

violations occur when a claimant does ‘not receive meaningful notice [or] an

opportunity to be heard.’ ” Bessette v. Comm’r of Soc. Sec., No. 09-CV-735

(TJM/DRH), 2010 WL 5677184, at *5 (N.D.N.Y. Dec. 14, 2010) (quoting Parker v.

Caifano, 664 F.2d 1199, 1203 (6th Cir.1981)). Based on the record before this court,

there is no basis on which to conclude that plaintiff’s due process rights were violated

relative to any of her prior applications. Accordingly, the court does not have the

jurisdiction to review the Commissioner’s decision not to reopen plaintiff’s earlier

applications.

WHEREFORE, based on the findings above, it is

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

complaint is DISMISSED, and it is

ORDERED, that judgment be entered for the DEFENDANT.

Dated: February 24, 2022 Levelowd Bate

Andrew T. Baxter

U.S. Magistrate Judge

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