The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KEVIN THOMAS C.,
Plaintiff,
Vv.
No. 5:20-CV-1037
a COMMISSIONER OF SOCIAL SECURITY, (CFH)
Defendant.
APPEARANCES: OF COUNSEL:
Law Offices of Kenneth Hiller, PLLC JUSTIN M. GOLDSTEIN, ESQ.
6000 North Bailey Avenue KENNETH R. HILLER, ESQ.
Suite 1A
Amherst, New York 14226
m| Attorneys for plaintiff
Social Security Administration LUIS PERE, ESQ.
J.F.K. Federal Building,
15 New Sudbury Street, Rm. 625
Boston, Massachusetts 02203
Attorneys for defendant
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUN-DECISION AND ORDER‘
tr
Kevin Thomas C.? (“plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g)
seeking review of a decision by the Commissioner of Social Security (“the
' Parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. § 636(c),
Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 72.2(b), and General Order 18. See Dkt. No. 5.
2 In accordance with guidance from the Committee on Court Administration and Case Management of the
Judicial Conference of the United States, which was adopted by the Northern District of New York in 2018
to better protect personal and medical information of non-governmental parties, this Memorandum-
Decision and Order will identify plaintiff's last name by initial only.
Commissioner’) denying his application for disability insurance benefits. See Dkt. No. 1
(“Compl.”). Plaintiff moves for reversal and remand for the determination of benefits.
See Dkt. No. 16. The Commissioner cross moves for judgment on the pleadings. See
Dkt. No. 19. For the following reasons, the Commissioner’s decision is affirmed.
a
I. Background
On January 22, 2018, plaintiff filed a Title XVI application for supplemental
security income. See T. at 126-31.° Plaintiff initially alleged a disability onset date of
March 1, 2017, which was later amended to March 29, 2019. See id. at 30, 126. The
Social Security Administration (“SSA”) denied plaintiff's claim on March 26, 2018. See
mid. at 69. Plaintiff requested a hearing, see id. at 75, and a hearing was held on Octobe
3, 2019, before Administrative Law Judge (“ALJ”) Gretchen Mary Griesler. See id. at
27-51. On November 18, 2019, the ALJ issued an unfavorable decision. See id. at 15-
20. On July 9, 2020, the Appeals Council denied plaintiff's request for review. See id.
at 1-5. Plaintiff commenced this action on September 2, 2020. See Compl.
tr!
ll. Legal Standards
A. Standard of Review
3 followed by a number refers to the pages of the administrative transcript filed by the Commissioner.
See Dkt. No. 13. Citations to the administrative transcript refer to the pagination in the bottom, right-hand
corner of the page, not the pagination generated by CM/ECF.
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, 985-86 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d
464, 467 (2d Cir. 1982). Substantial evidence is “more than a mere scintilla,” meaning
that in the record one can find “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d
Cir. 2004) (per curiam) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
citations omitted)). The substantial evidence standard is “a very deferential standard of
review .... [This] means once an ALJ finds facts, we can reject [them] only if a
reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin..
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (internal quotations marks,
citation, and emphasis 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.
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).
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)(E). Disability is defined as the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical or
mental impairment . .. which has lasted or can be expected to last for a continuous
period of not less than 12 months[.]” Id. § 423(d)(1)(A). A medically-determinable
impairment is an affliction that is so severe that it renders an individual unable to
continue with his or her previous work or any other employment that may be available to
him or her based upon age, education, and work experience. See id. § 423(d)(2)(A).
Such an impairment must be supported by “medically acceptable clinical and laboratory
diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is
m| “based on objective medical facts, diagnoses[,] or medical opinions inferable from [the]
facts, subjective complaints of pain or disability, and educational background, age, and
work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3
(S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
1983)).
The Second Circuit employs a five-step analysis, based on 20 C.F.R.
§ 404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers
whether the claimant has a “severe impairment” which
significantly limits his [or her] physical or mental ability to do
basic work activities.
If the claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has
an impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner] will consider him [or her] disabled without
considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a
claimant who is afflicted with a “listed” impairment is unable
to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant's severe
impairment, he [or she] has the residual functional capacity
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, 675 F.2d at 467 (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
I
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. ld. (citing Berry, 675 F.2d at 467).
lll. The ALJ’s Decision
Applying the five-step disability sequential evaluation, the ALJ first determined
that plaintiff had not engaged in substantial gainful activity since March 29, 2019, his
amended alleged onset date. See T. at 17. At step two, the ALJ found that plaintiff's
“spine disorder” was a severe impairment. Id. At step three, the ALJ determined that
plaintiff did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. See id. at 18. Before reaching step four, the ALJ concluded that plaintiff
retained the residual functional capacity (“RFC”) to perform medium work as defined in
20 C.F.R. § 416.967(c) except “the claimant can frequently stoop, balance, crouch,
crawl, kneel and climb stairs and ramps. The claimant cannot tolerate concentrated
o exposure to respiratory irritants.” Id. At step four, the ALJ determined that plaintiff had
no relevant past work. See id. at 21. At step five, considering the plaintiff's age,
education, work experience, and RFC, the ALJ concluded that there were jobs that
existed in significant numbers in the national economy that plaintiff could perform. See
id. Thus, the ALJ determined that plaintiff had “not been under a disability, as defined in
the Social Security Act, since March 29, 2019, the amended alleged onset date[.]” Id. a
mn] 22.
IV. Arguments*
Plaintiff argues that the ALJ’s RFC determination is not supported by substantial
evidence because she improperly evaluated the medical opinions of record and erred in
| her consideration of “[p]laintiffs subjective complaints[.]” Dkt. No. 16 at 20; 10-19. The
Commissioner argues that the ALJ “properly evaluated the evidence and substantial
evidence supports the ALJ’s” RFC determination. Dkt. No. 19 at 3.
4 The Court's citations to the parties’ briefs refer to the pagination generated by CM/ECF in the pages’
headers.
V. Discussion
A. RFC Determination
RFC is defined as “what an individual can still do despite his or her
limitations. .... Ordinarily, RFC is the individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and continuing basis[.]"
| Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (quoting Melville v. Apfel,
198 F.3d 45, 52 (2d Cir. 1999) (citation omitted)). “In making a residual functional
capacity determination, the ALJ must consider a claimant’s physical abilities, mental
abilities, [and] symptomology, including pain and other limitations which could interfere
with work activities on a regular and continuing basis.” Id. (citing 20 C.F.R.
§ 404.1545(a)). “Ultimately, ‘[aJny impairment-related limitations created by an
individual’s response to demands of work . . . must be reflected in the RFC
assessment.” Hendrickson v. Astrue, No. 5:11-CV-927 (ESH), 2012 WL 7784156, at *3
(N.D.N.Y. Dec. 11, 2012) (quoting Titles II & XVI: Capability to Do Other Work-The
Medical-Vocational Rules As A Framework for Evaluating Solely Nonexertional
Impairments, Social Security Rulings (“SSR”) 85-15, 1985 WL 56857, at *6 (1985)).
The RFC determination “must be set forth with sufficient specificity to enable [the
:| Court] to decide whether the determination is supported by substantial evidence.”
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). “In formulating a plaintiffs RFC,
an ALJ does not have to adhere to the entirety of one medical source’s opinion.”
Angela G. v. Comm’'r of Soc. Sec., No. 5:19-CV-1521 (ML), 2021 WL 22609, at *6
(N.D.N.Y. Jan. 4, 2021) (collecting cases). Rather, “[aJn ALJ may [] accept portions of a
medical opinion that are consistent with the record, and choose not to accept portions
that are inconsistent with the record.” Joseph K. v. Comm’r of Soc. Sec., No. 5:17-CV-
748 (DJS), 2018 WL 3716780, at *4 (N.D.N.Y. Aug. 2, 2018). “[l]nconsistencies with
objective findings can constitute a good reason for rejecting an opinion or accepting
parts of the opinion.” Angela G., 2021 WL 22609, at *7.
The Court “defer[s] to the Commissioner's resolution of conflicting evidence[.]”
Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018) (summary order) (citation and
quotation marks omitted). Therefore, even if a plaintiff disagrees with the ALJ’s
assessment of opinion evidence and can point to evidence in the record to support his
position, “whether there is substantial evidence supporting the [plaintiff's] view is not the
question []; rather, [the Court] must decide whether substantial evidence supports the
ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013)
m| (Summary order) (emphasis omitted). The ALJ must not “ignore evidence or cherry pick
only the evidence from medical sources that support a particular conclusion and ignore
the contrary evidence” but “[t]he Court will not reweigh the evidence that was before the
ALJ.” April B. v. Saul, No. 8:18-CV-682 (DJS), 2019 WL 4736243, at *6 (N.D.N.Y. Sept.
27, 2019) (citations and internal quotation marks omitted); see also Barringer v. Comm'r
of Soc. Sec., 358 F. Supp. 2d 67, 79 (N.D.N.Y. 2005) (citation and quotation marks
| omitted) (“[A]n ALJ is not required to discuss all the evidence submitted, and [his or her]
failure to cite specific evidence does not indicate that it was not considered.”).
1. Evaluation of Medical Opinions
Under the new regulations, which are applicable to plaintiff's claim, the
Commissioner no longer gives specific evidentiary weight to medical opinions. See
Warren |. v. Comm’r of Soc. Sec., No. 5:20-CV-495 (ATB), 2021 WL 860506, at *4
(N.D.N.Y. Mar. 8, 2021). Rather, the Commissioner must consider all medical opinions
and “evaluate their persuasiveness” based on their supportability, consistency,
relationship with the claimant, specialization, and “other factors.” 20 C.F.R.
§ 416.920c(a)-(c). Although the ALJ is not required to assign a specific “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.
§ 416.920c(a) and (b)(1). The ALJ must expressly “explain how [he or she] considered
the supportability and consistency factors” for a medical opinion. Id. § 416.920c(b)(2).
“[S]upportability” means 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. § 416.920c(c)(1).
“[C]onsistency” means that “[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. § 416.920c(c)(2).°
a. Consultative Examiner Kalyani Ganesh, M.D.
Dr. Ganesh conducted plaintiffs consultative examination. He opined that
plaintiff had no difficulties sitting, standing, or walking, but had mild to moderate
limitations carrying, pushing, and pulling. See T. at 214. The ALJ was “persuaded by
[this] opinion, because it [wa]s supported by the diagnostic images in [the] record .. .
and consistent with her evaluation of the claimant[.]” Id. at 19 (citing T. at 216). The
5 The ALJ is not required to discuss the remaining factors unless he or she finds that two or more medical
opinions are equally supported and consistent with the record. See 20 C.F.R. § 416.920c(b)(3).
ALJ explained that Dr. Ganesh’s evaluation “showed normal gait, full range of motion of
the lumbar spine, negative straight leg raise test, stable joints, no swelling or effusion,
physiologic and equal deep tendon reflexes in the extremities, no sensory deficits, 5/5
strength in the extremities, and no muscle atrophy[.]” Id. (citing T. at 213-14). The ALJ
also found Dr. Ganesh’s opinion to be “consistent with progress notes documenting
| normal musculoskeletal examinations and no neurological deficits[.]” Id. (citing T. at
254, 256, 258). In a later portion of her opinion, the ALJ recounted the findings from the
“diagnostic imagef[] in the record[,]’ explaining that a February 2018 X-ray “showed
evidence of moderate degenerative spondylosis/degenerative disc disease at L4-5 with
mild degenerative disc disease at L5-S1, straightening, old mild compression fracture of
L1, and transitional L5 vertebral body[.]” Id. at 19-20 (citing T. at 216). The ALJ also
m| explained that plaintiff's progress notes showed that “he had good range of motion in hi
joints including his shoulders, elbows, wrists, hips, ankles, knees, and small joints of his
hand and feet[.]” Id. at 20 (citing T. at 225).
Plaintiff argues that “the ALJ failed to acknowledge the most glaring issue that
Dr. Ganesh’s handwritten limitations are illegible and appear to contradict the ALJ’s
RFC finding.” Dkt. No. 16 at 13. Plaintiff also argues that the ALJ was required to
| Contact Dr. Ganesh to decipher the handwriting. Dkt. No. 16 at 13-14. The
Commissioner contends that Dr. Ganesh’s opinion is legible. See Dkt. No. 19 at 6. The
Commissioner also argues that although a mild to moderate limitation is inconsistent
with medium work, Dr. Ganesh’s no-limitation findings, and the omission of any finding
related to environmental limitations, supports the ALJ’s RFC determination. See id. at
6-7.
10
The Court agrees with the Commissioner that Dr. Ganesh’s handwritten notation
it largely legible. See Dkt. No. 19 at 6-7. It indicates, “mild-mod limitation to
[indiscernible], carrying, pushing, pulling[.]” T. at 214. It is not clear to the Court
whether “lifting” is included in Dr. Ganesh’s statement. See id. Regardless, the ALJ
was not required to recontact Dr. Ganesh. An ALJ “may recontact” a medical source
the evidence is consistent but [he or she] ha[s] insufficient evidence to determine
whether [a claimant] [is] disabled[.]’ 20 C.F.R. § 416.920b(2)(i). “There is no case or
statutory precedent that requires an ALJ to re-contact a non-treating source.” Tracy v.
Colvin, No. 5:15-CV-1085 (LEK), 2016 WL 3527876, at *8 (N.D.N.Y. June 23, 2016)
(emphasis added). Plaintiff does not identify missing information such that the ALJ had
insufficient evidence before her to determine whether he was disabled. Moreover,
m| during plaintiff's hearing, the ALJ asked plaintiff's representative if there were any
objections to the record and he stated there were not. See T. at 30; see also Lesa T. v.
Comm’r of Soc. Sec., No. 5:17-CV-1215 (ATB), 2019 WL 1229082, at *7 (N.D.N.Y. Mar.
15, 2019) (disagreeing with the plaintiff “that the ALJ was under a duty to re-contact” a
treating source because “the ALJ had sufficient information to assess the medical
opinion evidence and determine [the p]laintiff's RFC” and “[t]he ALJ also made
| reasonable efforts to ensure that the administrative record was complete[]” by
“discuss[ing the p]laintiff’s recent medical treatment at length, and stat[ing] that he
would request updated records from her providers[.]’).
Plaintiff also argues that “Dr. Ganesh’s medical opinion does not support the
ability to perform the exertional requirements of medium work and perform the specific
postural and environmental abilities contained in the RFC finding[.]” Dkt. No. 16 at 13.
11
“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If someone can do medium work, we
determine that he or she can also do sedentary and light work.” 20 C.F.R. § 416.967(c)
This Court has affirmed an ALJ’s RFC limiting a plaintiff to medium work where the
consultative examiner “opined that plaintiff had no gross limitations with regard to sitting,
o standing, or walking. He also opined that [the] plaintiff had ‘mild’ limitations with regard
to lifting, carrying, pushing, and pulling.” Sherrill B. v. Comm’r of Soc. Sec., No. 5:17-
CV-754 (ATB), 2018 WL 4150881, at *7 (N.D.N.Y. Aug. 30, 2018) (limiting the plaintiff t
walking, standing, and sitting for six hours a day); see also Heburn v. Astrue, No. 6:05-
CV-1429 (LEK/DEP), 2009 WL 174941, at *8 (N.D.N.Y. Jan. 23, 2009) (affirming the
ALJ’s RFC determination limiting the plaintiff to medium work “including the ability to lift
carry up to fifty pounds occasionally and twenty-five pounds frequently; to sit, stand
and walk for six hours in an eight-hour workday” where the consultative examiner
“opined that plaintiff has only a mild degree of limitation and lifting, carrying, pushing,
and pulling, with no gross limitation noted in sitting, standing, walking, climbing, or
bending.”).
The ALJ limited plaintiff to medium work “except [he] can frequently stoop,
| balance, crouch, crawl, kneel and climb stairs and ramps.” T. at 18. Dr. Ganesh opined
that plaintiff had no limitations walking, sitting, or standing, but had mild to moderate
limitations carrying, pushing, and pulling. See id. at 214. Dr. Ganesh’s opinion does
not express an opinion as to the weight plaintiff can carry, push, or pull. See id. The
ALJ did not reconcile how she was “persuaded by Dr. Ganesh’s opinion” with plaintiff's
RFC that does not include carrying, pushing, or pulling limitations. Id. at 19; 18; see
12
Badaszewski v. Comm’r of Soc. Sec., No. 18-CV-796 (FPG), 2020 WL 486376, at *3
(W.D.N.Y. Jan. 30, 2020) (remanding because “the ALJ purported to give ‘great weight’
to [an] opinion without any caveats . . . [and a]n explanation is necessary to permit
meaningful judicial review and ensure that an ALJ does not simply cherry pick evidence
supporting his ultimate conclusion.”). However, the ALJ “was under no obligation to
accept” Dr. Ganesh’s entire opinion. Jeffrey G. v. Comm’r of Soc. Sec., No. 5:20-CV-
1016 (ATB), 2021 WL 4844146, at *10 (N.D.N.Y. Oct. 18, 2021) (affirming where the
ALJ found the consultative examiner’s opinion to be “persuasive” but did not include a
limitation on turning the head or looking up and down despite the examiner reaching a
“moderate” limitation). The ALJ sufficiently reviewed, and explained her reliance on, Dr.
Ganesh’s consultive examination findings, the X-ray results, treatment notes and
m| plaintiff's testimony. See T. at 19-21.
As the ALJ explained, the record reflects that plaintiff had degenerative changes
in his spine; a normal gait and stance; full ranges of motion in the shoulders, elbows,
forearms, wrists, hips, knees, and ankles; intact dexterity and grip strength; and
“[s]trength 5/5 in the upper and lower extremities.” T. at 214, 216, 254, 256, 258. The
records also reveal that plaintiff did not use an assistive device. See id. at 213. Finally,
| Plaintiff testified that he could “probably” carry fifty pounds; carried the groceries and
laundry; and helped his father, who has Parkinson’s, get up after he has fallen. Id. at
40-41. Therefore, despite declining to include Dr. Ganesh’s mild- to moderate-
limitations with the RFC, or discuss why she rejected them, the Court finds no error in
the ALJ’s review of Dr. Ganesh’s opinion. The ALJ appropriately explained her
rationale in weighing the various medical opinions, the medical treatment evidence,
13
plaintiff's testimony, and activities of daily living. See Raymonda C. v. Comm’r of Soc.
Sec., No. 3:19-CV-0178 (GTS), 2020 WL 42814, at *4 (N.D.N.Y. Jan. 3, 2020) (“As to
the limitations . . . that the ALJ declined to adopt, the ALJ provided ample good reasons
for his actions . . . [because] the ALJ discussed the medical treatment evidence and [th
pjlaintiff's reported daily activities that were inconsistent with these opined limitations.”);
| Jacob M. v. Comm'r of Soc. Sec., No. 20-CV-1093-FPG, 2022 WL 61007, at *3n.4, 6
(W.D.N.Y. Jan. 6, 2022) (affirming where although “the ALJ did not expressly list [his]
reasons” for discounting certain limitations, “his rationale can be gleaned from the
decision as a whole” because he reviewed the plaintiff's activities of daily living and the
absence of records indicating more severe issues). Finally, plaintiff does not identify
records supporting greater restrictions such that remand would be warranted. See
m| Brenden R. v. Comm’r of Soc. Sec., No. 5:20-CV-821 (DNH), 2021 WL 5965164, at *6
(N.D.N.Y. Dec. 15, 2021) (“The burden is on plaintiff to show that the record evidence
demands a more restrictive RFC[.]’).
b. State Agency Medical Consultant R. Mohanty, M.D.
The ALJ next reviewed Dr. Mohanty’s non-treating and non-examining disability
evaluation. Based on a review of the record, Dr. Mohanty determined that plaintiff could
| OCCasionally lift or carry twenty pounds; frequently lift or carry ten pounds; stand, walk,
and sit for six hours; was unlimited in his ability to push and pull; and could frequently
climb, balance, stoop, kneel, crouch, and crawl. See T. at 56-57. He based these
conclusions on plaintiff's “[c]hronic fatigue and some mild to moderate degenerative
changes to the L/S spine.” Id. at 56-57. Finally, Dr. Mohanty determined that plaintiff
should avoid concentrated exposure to extreme cold and heat, wetness, and humidity;
14
and “even moderate exposure" to “[f]Jumes, odors, gases, poor ventilation, etc.” Id. at
57-58. The ALJ found Dr. Mohanty’s opinion to be “less persuasive than Dr. Ganesh’s
opinion[.]” Id. at 19. The ALJ found that “the lifting/carrying restrictions [were]
inconsistent with the claimant’s testimony that he could lift 50 pounds . . . [and were] not
supported by the consultative evaluation, which showed full strength in the upper
extremities, full range of motion of the upper extremities, no sensory deficits, and no
muscle atrophy evident[.]” Id. at 19-20 (citing T. at 214). As to environmental
limitations, the ALJ explained that she “adopted some of the environmental restrictions
identified by Dr. Mohanty, because they are consistent with the claimant's testimony,
but did not include avoiding extreme temperatures and humidity since his treating
naturopathic doctor[, Kevin L. Conroy, N.D.,] advised that he could function normally
| OUtdoors[.]” Id. at 20 (citing T. at 204).
Plaintiff argues that ALJ inappropriately relied on Dr. Conroy's opinion which “did
not provide a function-by-function medical opinion[.]’ Dkt. No. 16 at 14. Plaintiff
contends that “had Dr. Mohanty’s complete opinion relating to environmental limitations
[been] credited, then all medium work would have been eliminated.” Id. Plaintiff also
argues that Dr. Mohanty’s opinion is the only function-by-function opinion in the record
and “[t]he ALJ created a gap in the record by discounting the only opinion addressing all
areas of functioning[.]’ Id. at 15 (relying on Travis L. v. Saul, No. 3:19-CV-663 (CFH),
2020 WL 5633823, at *10 (N.D.N.Y. Sept. 21, 2020)). Plaintiff also asserts that the ALJ
inappropriately relied on plaintiff's testimony to discount Dr. Mohanty’s opined physical
limitations. See id. at 13.
15
This Court has remanded where the ALJ found “the only opinion in the medical
record that addressed plaintiff's exertional limitations” to be vague and instead relied
more heavily on the plaintiff's activities of daily living in determining the plaintiff's RFC.
Travis L., 2020 WL 5633823, at *9. However, here, Drs. Ganesh, Mohanty, and Conroy
addressed plaintiff's exertional limitations. See T. at 56-58, 204, 214-14. Moreover,
| that Dr. Mohanty’s opinion provides a function-by-function analysis makes it no more
persuasive. Rather, the ALJ was required to consider the persuasiveness of the opinio
based, “most important[ly,]’ on its consistency with the entire record and the
supportability Dr. Mohanty’s explanations and cited records provided. 20 C.F.R.
§ 416.920c(b)(2). The ALJ did so, noting that Dr. Mohanty’s opinion that plaintiff could
occasionally lift or carry twenty pounds was inconsistent with plaintiff's testimony and
unsupported by Dr. Ganesh’s consultative examination findings of full strength and
range of motion in plaintiff's upper extremities. See T. at 19, 214. At plaintiff's hearing,
the ALJ asked whether his CFS “affect[s] [his] ability to pick things up[.]” Id. at 40.
Plaintiff said, “[nJo,” and when asked “how much” he could pick up, plaintiff responded,
“I’m weaker now than | used to be, | don’t Know. Probably, | don’t really know, probably
50 pounds, maybe, | don’t know.” Id. How the ALJ chose to resolve the inconsistency
| between Dr. Mohanty’s opinion and plaintiff's testimony is not for this Court to second
guess. See Micheli v. Astrue, 501 F. App’x 26, 29 (2d Cir. 2012) (summary order) (“[I]t
is the sole responsibility of the ALJ to weigh all medical evidence and resolve any
material conflicts in the record.”); see also Carvey v. Astrue, 380 F. App’x 50, 52 (2d Cir.
2010) (summary order) (“Moreover, in his hearing testimony, [the plaintiff]
acknowledged that he could carry five to ten pounds. This record provides a sufficient
16
basis for the ALJ’s decision not to give controlling weight to a treating physician opinion
that [the plaintiff] could do no lifting.”).
Similarly, the ALJ identified an inconsistency, regarding plaintiff's environmental
limitations, between Dr. Mohanty’s opinion compared to Dr. Conroy's opinion and
plaintiff's testimony. See T. at 19. Dr. Mohanty determined that plaintiff should avoid
| concentrated exposure to extreme cold and heat, and humidity; and “even moderate
exposure” to fumes, odors, dusts, gases and poor ventilation. Id. at 58; 57. Dr. Conroy
explained that plaintiff “is not able to function in any environment w/ toxic synthetic
chemicals” but “is highly functional in any pristine environment (normally outdoors
consuming only organic food[).]’ Id. at 204. Dr. Conroy's records indicate that plaintiff's
CFS was “aggravated by dust and synthetic chemicals” but he had been “in much better
Spirits and reported this is primarily due to being able to sleep outside[.]” Id. at 205.
Other records also indicate that plaintiff reported that his symptoms “get worse when he
is exposed to the diff[erent] environmental chemicals[,]’ but he “denie[d] hot/cold
intolerance[.]” Id. at 253; 242. Plaintiff testified that “the main environmental things [tha
impact his symptoms] are anything chemical in orientation . . . usually through cleaning
products ... dust and mold, you know is another thing.” Id. at 46. Plaintiff explained
that as to heat, humidity, and cold temperature, the heat and cold minimally affect him.
See id. Specifically, he testified that as to the heat, “I think that’s everybody. | don’t
think I’m abnormal in terms of heat will — probably for me, | have to rest more than the
average person would and | can’t be out in it very long without it realty fatiguing me.” Id.
As for the “cold, just cause yeah, it takes energy to deal with the cold. So, | am fatigued
a little bit more dealing with that.” Id.
17
Plaintiff does not identify any records, other than Dr. Mohanty’s opinion, that
indicate an inability to tolerate extreme heat and cold or humidity. See Dkt. No. 16 at
14-15; but see Benjamin M. v. Comm’r of Soc. Sec., No. 5:18-CV-1079 (GTS/ATB),
2019 WL 6896722, at *3 (N.D.N.Y. Nov. 21, 2019), report and recommendation
adopted, 2019 WL 6895247 (N.D.N.Y. Dec. 18, 2019) (emphasis added) (remanding
where the ALJ gave “great weight” to the “non-treating, non-examining expert” who
“concluded that plaintiff could ‘never’ tolerate exposure to respiratory irritants such as
dust and odor[]” but “concluded, without explanation, that plaintiff had an RFC to
perform work in environments with some amount of exposure to such elements” and it
was “the only expert opinion of record regarding plaintiff's non-exertional limitations[.]”).
Although plaintiff testified that after “very long” in the heat he would be fatigued and that
m| the cold “fatigue[s him] a little bit[,]” and Dr. Mohanty opined greater environmental
limitations, Dr. Conroy noted that plaintiff could function outdoors and had been
sleeping outside, and Dr. Zafar’s notes did not reveal any subjective complaints or
objective findings related to an intolerance to extreme temperatures or humidity. T. at
46, 57, 204-205, 242-258; see Seeley v. Comm’r of Soc. Sec., No. 1:11-CV-0757
(GTS), 2012 WL 5334746, at *3 (N.D.N.Y. Oct. 26, 2012) (citation omitted) (“If
Supported by substantial evidence, the Commissioner's 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].””).
As to plaintiff's ability to tolerate other respiratory irritants, Dr. Conroy and Dr.
Mohanty appear to have indicated that plaintiff had more severe restrictions than the
RFC reflects. See T. at 58, 204. Plaintiff argues only that “[t]he ALJ equated a pristine
18
environment to the ability to tolerate any weather phenomenon, including extreme
temperatures and humidity.” Dkt. No. 16 at 14. Plaintiff does not argue that the ALJ
erred in her consideration of Dr. Mohanty’s opinion or RFC determination as it relates to
plaintiff's ability to tolerate other respiratory irritants. See Dkt. No. 16 at 14; see also
Christine M. v. Commrr. of Soc. Sec., No. 1:20-CV-01226 (MJR), 2022 WL 130900, at
(W.D.N.Y. Jan. 14, 2022) (“Although [the] plaintiff argues that the evidence warranted
additional RFC restrictions for migraines, she has not supported her conclusion with
reference to any evidence that the ALJ overlooked or improperly discredited.”).
Therefore, the Court finds no error in the ALJ’s review of Dr. Mohanty’s opinion. See
Dale A. M. v. Comm’r of Soc. Sec., No. 5:19-CV-1150 (FJS), 2021 WL 1175160, at *24
(N.D.N.Y. Mar. 29, 2021) (“[T]he ALJ’s decision to discount [an opinion] was based on
SUfficient and consistent evidence, i.e., other medical opinions and supporting medical
records.”).
c. Kevin Conroy, N.D.®
Dr. Conroy handwrote his opinion on a fax from the SSA that requested a
“statement based on [his] findings . . . [and his] opinion about [plaintiff's] ability to do
work-related physical or mental activities ....” T. at 204. Dr. Conroy wrote, “[p]atient is
able to function in any environment w/ toxic or synthetic chemicals. He is highly
functional in any pristine environment (normally outdoors consuming only organic
food[)].” Id. The ALJ determined that Dr. Conroy’s opinion was “not supported by
treatment notes from his office, which do[] not contain any abnormal clinical findings on
§ Doctor of Naturopathy.
19
physical examinations[.]” Id. (citing T. at 205, 229). The ALJ also recounted that “Dr.
Conroy noted that the claimant appeared in better spirits after adjusting his diet and
indicated that he was not using or needing enzymes as prescribed[.]” Id. (citing T. at
205). Finally, the ALJ determined that “Dr. Conroy . . . failed to identify any objective
clinical findings to support [his] opinion[].” Id. at 20.
° Plaintiff challenges the ALJ’s decision to simultaneously find Dr. Conroy's opinion
unpersuasive but use the opinion to discount some of Dr. Mohanty’s environmental
limitations. See Dkt. No. 16 at 5-6. Dr. Conroy's progress note reflects that plaintiff's
symptoms were “aggravated by dust and synthetic chemicals[.]” T. at 205. The ALJ
recounted plaintiff's testimony “that he feels more fatigue when dealing with extreme
cold and being exposed to chemicals.” Id. at 19, 46. However, it was appropriate for
ALJ to conclude that Dr. Conroy’s opinion was unsupported because there is
nothing objective to corroborate the opinion that plaintiff cannot “function in any
environment” with chemicals, and Dr. Conroy did not identify objective evidence
indicating otherwise. Id. at 204, 20; see 20 C.F.R. § 404.1520c(c)(1) (explaining that
supportability means “[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)
m|... the more persuasive’ it is.). Importantly, the ALJ’s RFC determination did not need
to perfectly correspond with any one medical opinion; rather, the ALJ was entitled to
weigh the record as a whole in determining plaintiffs RFC. See Jeanette S. U. v. Saul,
No. 3:18-CV-01045 (DNH/TWD), 2020 WL 1494168, at *5 (N.D.N.Y. Mar. 11, 2020),
report and recommendation adopted, 2020 WL 1493917 (N.D.N.Y. Mar. 26, 2020) (“[l]n
7 The two records the ALJ cites from Dr. Conroy’s office are identical progress notes from a visit on May
31, 2017. See T. at 205, 229.
20
formulating [the p]laintiff's RFC, the ALJ was not required to accept every limitation in
the opinions of [the] treating providers ... nor craft an RFC that mirrored any of the
medical opinions.”). The ALJ sufficiently reviewed Dr. Mohanty’s and Dr. Conroy’s
opinions, the objective record, and plaintiff's testimony to determine that plaintiff “cannot
tolerate concentrated exposure to respiratory irritants.” T. at 18; see Bonet ex rel. T.B.,
523 F. App’x. at 59 (“[W]hether there is substantial evidence supporting the appellant’s
view is not the question,” instead the question to be answered by the Court is “whether
substantial evidence supports the ALJ's decision.”).
Plaintiff also argues that the ALJ was required to recontact Dr. Conroy because
his opinion was not delivered as a “function-by-function” analysis. Dkt. No. 16 at 16.
“An ALJ has an affirmative obligation to develop a claimant’s complete and accurate
medical record.” Cheryl E. v. Comm’r of Soc. Sec., No. 5:20-CV-0867 (ML), 2021 WL
5964890, at *8 (N.D.N.Y. Dec. 15, 2021). “However, the ALJ’s duty to develop the
record is not unlimited and is discharged when the ALJ possesses [the claimant’s]
complete medical history and there are no obvious gaps or inconsistencies in the
record.” Id. (quoting Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)) (quotation
marks omitted) (alteration in original). Plaintiff does not identify a gap in the record that
| would have triggered the ALJ’s duty to develop the record or to recontact Dr. Conroy.
See Dkt. No. 16 at 16. Rather, he summarily states, without citing to any record, that
Dr. Conroy “believed plaintiff was unable to work, and, due to the nonadversarial and
informal nature of Social Security proceedings, the ALJ was required to further develop
the record before relying upon her own lay opinion.” Id. Nowhere in Dr. Conroy's
opinion or progress note does he state that plaintiff cannot work. See T. at 204-208.
21
Regardless, “the ultimate issue of whether one can perform ‘regular or continuing work’
and is, therefore, not disabled, is a determination that is reserved to the Commissioner.”
Jackson L. v. Comm’r of Soc. Sec., No. 5:19-CV-786 (ATB), 2020 WL 3077051, at *10
(N.D.N.Y. June 10, 2020) (quoting Taylor v. Barnhart, 83 F. App’x 347, 349 (2d Cir.
2003) (summary order)). Therefore, the Court finds untenable plaintiff's argument that
| the ALJ was required to recontact Dr. Conroy.
d. Sara Zafar, M.D.
Dr. Zafar completed a “Medical Examination for Employability Assessment”
wherein she determined that because of plaintiff's CFS and fibromyalgia, plaintiff would
be “unable to participate in any activities except treatment or rehabilitation” for four to
five months. T. at 259-60. The ALJ explained that “Dr. Zafar’s statement is on an issue
m| reserved to the Commissioner, and is inherently neither valuable nor persuasive to the
Social Security Administration 20 CFR 416.920b(c).” Id. at 20. The ALJ found that “Dr.
Zafar’s opinion [wa]s also not supported by progress notes from her office, which
showed normal physical examinations and no imaging or evaluation for his reported
chronic fatigue[.]” Id. The ALJ observed Dr. Zafar’s note that the claimant was not
taking any active medications. See id. (citing T. at 243, 248, 251, 254). The ALJ also
| acknowledged that Dr. Zafar’s opinion did not identify objective evidence to support her
opinion. See id. at 20.
Plaintiff argues that “the ALJ was duty bound to obtain a more detailed statement
instead of rejecting the opinion|]” because Dr. Zafar did not provide a function-by-
function opinion. Dkt. No. 16 at 16. As the Court explained in reviewing Dr. Conroy’s
opinion, there is no requirement that an ALJ recontact a treating source because they
22
did not provide a function-by-function opinion. See supra at 20-21. Rather, the ALJ
would only need to do so if there were “obvious gaps and inconsistencies in the medical
record[.]” Cheryl E., 2021 WL 5964890, at *8. As plaintiff has failed to identify any gaps
in the record, the Court disagrees that the ALJ had any obligation to recontact Dr. Zafar.
Moreover, the ALJ appropriately discounted Dr. Zafar’s opinion on plaintiff's ability to
| work because it is a decision reserved for the Commissioner. See Delossantos v.
Comm’r of Soc. Sec., No. 7:16-CV-0713 (GTS), 2017 WL 4011265, at *7 (N.D.N.Y.
Sept. 11, 2017) (“Notably, whether a claimant is disabled is an issue reserved to the
Commissioner, and an opinion indicating that a claimant is ‘disabled’ or ‘unable to work’
is not entitled to special deference.”). The ALJ also appropriately discounted the
opinion because it was not supported by Dr. Zafar’s treatment notes which reflected
Continuously normal examinations, and she did not otherwise identify objective support
for her opinion. See T. at 20, 244-58; see 20 C.F.R. § 416.920c(b)(2) (requiring
consideration of the supportability factor). As such, the Court finds no error in the ALJ’s
review of Dr. Zafar’s opinion.
In sum, based on the reasons set forth above, remand is not warranted as it
relates to the ALJ’s consideration of the medical opinions of record. See, e.g., Justin S.
m|V. Comm'r of Soc. Sec., 5:20-CV-1575 (ATB), 2022 WL 306445, at *11 (N.D.N.Y. Feb.
2, 2022) (“[T]he ALJ appropriately evaluated the medical opinions of record to reach an
RFC determination that was supported by substantial evidence, including the medical
opinions of record, [the] plaintiff's treatment records during the period of alleged
disability, and [the] plaintiff's testimony as to his own activities.”).
23
2. Consistency of Allegations
Plaintiff argues that the ALJ (1) erred by rejecting his “complaints relating to [his]
chronic fatigue syndrome” and “failed to consider the nature of chronic fatigue
syndrome{,]” and (2) failed “to consider good causes” for plaintiff's noncompliance with
medication and treatment. Dkt. No. 16 at 20-21. Plaintiff also argues that “[t]he RFC
o finding did not account for breaks, changing positions, and absence related limitations
due to flares, and it simply untrue that the ALJ accounted for [p]laintiff's additional
conditions in which the ALJ deemed non-severe.” Id. at 23.
“The regulations provide a two-step process for evaluating a claimant’s
assertions of pain and other limitations. At the first step, the ALJ must decide whether
the claimant suffers from a medically determinable impairment that could reasonably be
m| expected to produce the symptoms alleged.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.
2011) (citing 20 C.F.R. § 404.1529(b)); see SSR 16-3p: Titles || and XVI Evaluation of
Symptoms in Disability Claims, 2017 WL 5180304, at *1-2 (Oct, 25, 2017). “If the
claimant does suffer from such an impairment, at the second step, the ALJ must
consider ‘the extent to which [the claimant’s] symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence’ of record.” Genier,
606 F.3d at 49 (alterations in original) (quoting 20 C.F.R. § 404.1529(a)). “While
statements of pain are insufficient, an ALJ may not reject statements of intensity and
persistence of pain or other symptoms affecting an individual's ability to work because
of a lack of substantiating medical evidence.” Michael H. v. Saul, No. 5:20-CV-417
(MAD), 2021 WL 2358257, at *10 (N.D.N.Y. June 9, 2021) (citing 20 C.F.R.
§ 404.1529(c)(2)). The ALJ “is not required to accept the claimant’s subjective
24
complaints without question; he may exercise discretion in weighing the credibility of the
claimant's testimony in light of the other evidence in the record.” Genier, 606 F.3d at 49
(citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)).
“Under SSR 16-3p, when evaluating a claimant's symptom intensity, ‘[t]he ALJ
must consider the entire case record, including objective medical evidence, a claimant's
| statements about the intensity, persistence, and limiting effects of symptoms,
statements and information provided by medical sources, and any other relevant
evidence in the claimant's record.” Kearney v. Berryhill, No. 1:16-CV-00652 (MAT),
2018 WL 5776422, at *6 (W.D.N.Y. Nov. 2, 2018) (alteration in original) (quoting Vered
v. Colvin, No. 14-CV-4590 (KAM), 2017 WL 639245, at *15 (E.D.N.Y. Feb. 16, 2017).
The ALJ must “clearly demonstrate[] [that] he considered the entire case record... as
m| required by SSR 16-3p.” Id. (“The ALJ provided significant detail regarding the basis of
this finding, noting there is little objective evidence of record to support the alleged
severity of the symptoms [the] [p]laintiff described at the hearing.”); see, e.g., Michael
H., 2021 WL 2358257, at *11 (affirming the ALJ’s determination where the ALJ
“examine[d] inconsistencies in the record” between the plaintiff's testimony and the
medical records and opinions).
a. ALJ Decision
The ALJ first addressed plaintiff's CFS in her step-two analysis, explaining that it
was not a severe impairment because although “there are references to chronic fatigue
immune dysfunction, [plaintiff] denied any hospitalization, diagnostic testing, or
treatment for this condition[.]” T. at 17 (citing T. at 212). The ALJ explained that
“[p]rogress notes confirmed that [plaintiff] has not had any imaging or specialist
25
evaluation for his reported chronic fatigue . . . [hjis ANA and ANCA screening were all
negative, and his inflammatory markers were negative[.]” Id. (citing T. at 222, 245).
The ALJ also reviewed plaintiff's naturopathic progress note which reflected no
abnormal findings during his physical examination. See id. (citing T. at 205). Finally,
the ALJ noted that “[dJespite complaints of left knee pain, an x-ray of his left knee,
| obtained in February 2018, showed no significant bony abnormality . . . [and hJe also
had a normal gait and full range of motion of the knees[.]” Id. (citing T. at 213-14, 217).
The ALJ next determined that plaintiffs statements concerning the intensity,
persistence, and limiting effects of his symptoms were inconsistent with the record. See
T. The ALJ summarized plaintiffs subjective allegations:
he testified that he requires more rest than the average person does, and
that he feels more fatigued when dealing with extreme cold and being
exposed to chemicals. The claimant indicated that he goes to the grocery
store daily, because he is unable to go for more than ten minutes each
time[.] He stated his day is spent meditating, walking for 25 minutes, and
resting[.] The claimant avoids certain foods due to fibromyalgia pain, and
takes herbal supplements[.] The claimant can only sit for 40 minutes and
stand for 20 minutes before becoming fatigued[.]
Id. As to the objective medical evidence, the ALJ explained that a February 2018 X-ray
“showed evidence of moderate degenerative spondylosis/degenerative
disc disease at L4-5 with mild degenerative disc disease at L5-S1, straightening, old
mild compression fracture of L1, and transitional L5 vertebral body[.]’ Id. at 20 (citing T.
at 216). The ALJ recounted Dr. Ganesh’s consultative examination findings indicating
that plaintiff “had a normal gait, full range of motion of the lumbar spine, negative
straight leg raise test, stable joints, no swelling or effusion, physiologic and equal deep
tendon reflexes in the extremities, no sensory deficits, 5/5 strength in the extremities,
and no muscle atrophy[.]” Id. (citing T. at 213-14). The ALJ also explained that
26
“[p]rogress notes routinely documented normal musculoskeletal examinations and no
neurological deficits . . . [and h]is gait was described as normall.]” Id. (citing T. at 196,
198, 243, 254, 256, 258). As for plaintiff's fibromyalgia, the ALJ recounted that
“rheumatology records indicated that the claimant was feeling ‘better’; “[w]ith the
exception of mild tenderness along the thoracic spine, . . . claimant's musculoskeletal
and neurological examinations were within normal limits[;] . . . he had good range of
motion in his joints including his shoulders, elbows, wrists, hips, ankles, knees, and
small joints of his hand and feet”; and “he ha[d] only been treated twice by [the
Rheumatology] office[.]” Id. (citing T. at 219-20, 222, 225). Finally, the ALJ explained
that plaintiff “acknowledged that he could lift 50 pounds, which supports the
lifting/carrying abilities”; “[hJe also indicated that he has not been involved in any specifi
m| treatment, nor has he undergone any testing”; and “[h]Je was not in favor of taking any
medication[.]’ Id. (citing T. at 212, 222).
b. Consideration of Plaintiff's CFS
As plaintiff states, numerous providers diagnosed him with CFS. See Dkt. No. 1
at 22; T. at 205, 226, 243. However, a diagnosis does not establish that an impairment
is severe or that subjective allegations are consistent with the objective evidence. See
| Titles Il & XVI: Evaluating Claims Involving Chronic Fatigue Syndrome, SSR 14-1P,
2014 WL 1371245, at *7 (S.S.A. Apr. 3, 2014) (explaining the two-step consistency of
allegations analysis in the context of chronic fatigue syndrome). Although plaintiff
testified that he takes breaks after engaging in most activities, there is nothing in the
medical records to indicate the necessity for breaks and time to change positions—and
plaintiff does not point to anything indicating otherwise. See T. at 42-44. After finding
27
plaintiff's CFS to be non-severe, the ALJ explicitly discussed plaintiff's testimony that he
requires more sleep than most people, feels more tired when dealing with extreme cold
and chemical exposure, and cannot grocery shop for more than ten minutes at a time.
See id. at 17-19; see also Jeanette J. v. Saul, No. 6:19-CV-0795 (ML), 2020 WL
4932047, at *5 (N.D.N.Y. Aug. 24, 2020) (“It is proper to read the ALJ’s decision as a
°/ whole and it would be a needless formality to have the ALJ repeat substantially similar
factual analyses.”); Flower v. Comm’r of Soc. Sec., No. 6:16-CV-1084 (GTS), 2018 WL
895579, at *5 (N.D.N.Y. Feb. 13, 2018) (finding that the ALJ’s conclusion “that [the
pjlaintiff's CFS and sleep apnea were not medically determinable impairments . . . is at
most harmless error because, even if [the p]laintiff had medically determinable
impairments of CFS and sleep apnea, the ALJ considered [the p]laintiff's allegations of
m| Chronic fatigue and pain in association with fibromyalgia at subsequent steps in light of
her finding that Plaintiff's fibromyalgia was severe.”). As such, the ALJ did not err
because she found plaintiff had a severe impairment and considered all of plaintiff's
symptoms, including those related to CFS, in subsequent portions of her decision.
c. Noncompliance with Medication
SSR 16-3p explains that when an ALJ finds a plaintiff's symptoms inconsistent
with the objective findings in the record, the ALJ must consider the
possible reasons he or she may not comply with treatment or seek
treatment consistent with the degree of his or her complaints. We may
need to contact the individual regarding the lack of treatment or, at an
administrative proceeding, ask why he or she has not complied with or
sought treatment in a manner consistent with his or her complaints.
2017 WL 5180304, at “9 (emphasis omitted). During plaintiffs hearing, plaintiff's
representative asked him whether he was “treating with exclusively Dr. Zafar[.]’ T. at
28
38. Plaintiff explained that he was treating with Dr. Zafar and “Dr. Garg” for
rheumatology. Id. at 39. The representative responded, “[o]kay, and a couple of visits
with rheumatology, but they’re not prescribing you any medications and you don’t want
to take any medication.” Id. Plaintiff stated, “[n]o, she, she said you know, |’m using
herbal supplements and things like that and she felt doing medications, you know, she
| felt they were, those were good approaches and that unless my condition changed, she
didn’t need to, to see me, so, again, so she did a number of blood tests.” Id.
Prior to seeing Dr. Zafar, plaintiff met with Adam Duckett, D.O., to “establish
care.” T. at 242. Dr. Duckett noted that
patient has not seen a doctor in over 15 years. He does not take any
medication. He has not been out on disability in the past. He was telling
me that he needs a diagnosis of chronic fatigue syndrome in order to be
able to get this disability. He is requesting a referral to neurology for
further assessment. | will certainly do that for him. Patient does not want
to take any medications for treatment, stating that they have all failed
several years ago and he does not want to try again. He tries to take a
natural approach to his treatments with homeopathic remedies. Will
follow.
Id. at 242-43. In June 2018, Dr. Zafar noted that plaintiff “does not want to try
medications at this time. [W]Jas referred to neurology and Rheumatology, refused.” Id.
at 247. In July 2018, Dr. Zafar explained that plaintiff “does not want to try medications
m|as he has had [side effects] from it[.]” Id. at 251. In September 2018, plaintiff reported
that he was “taking OTC herbal/holistic medications to help” with his chronic fatigue
symptoms. ld. at 253, 255, 257. During his rheumatology workup, Megha Garg, M.D.,
noted that plaintiff was “not in favor of taking medications.” Id. at 222.
As to treatment plans other than medication, the record reflects that plaintiff's
“care plan” was to continue with follow-up appointments. See T. at 245, 248. Dr. Zafar
29
noted that plaintiff “ha[d] not had any imaging or specialist evaluation” and he “refuse[d]”
physical therapy. Id. at 248. In July and September 2018, Dr. Zafar noted that plaintiff
refused physical therapy or imaging because of insurance problems. See id. at 251,
254. However, treatment notes from January and July 2019 indicated that plaintiff was
undergoing screenings and lab tests. See id. at 256, 258. During plaintiff's hearing,
plaintiff confirmed that he had obtained health insurance. See id. at 38.
The ALJ reviewed the record and accurately reiterated in her decision that
plaintiff had not undergone specific testing and was not in favor of taking medication for
his CFS. See T. at 20. During plaintiff's hearing, he was questioned about his failure to
take medication and he explained that he was instead using herbal supplements and
had only undergone blood tests. See id. at 39; cf. Shane C. v. Comm of Soc. Sec.
m| Admin., No. 1:20-CV-0895 (DEP), 2021 WL 5906236, at *11 (N.D.N.Y. Dec. 14, 2021)
(finding no error under SSR 16-3p where the ALJ “did not fail to consider [the] plaintiff's
efforts to engage in treatment; rather, she found that the evidence documenting that
treatment did not reveal either subjective or objective support for [the] plaintiff's reports
of greater limitation[.]’). As the ALJ asked plaintiff was asked about his decision to not
take medications and accurately noted that plaintiff was not in favor of doing so, the
| Court finds no error in the ALJ’s consideration under SSR 16-3p.® See T. at 20, 39; see
also David F. v. Comm’r of Soc. Sec. Admin., No. 3:21-CV-00315 (SALM), 2021 WL
5937670, at *9 (D. Conn. Dec. 16, 2021) (remanding where “[o]ther than noting [the]
8 Plaintiff also summarily argues that under SSR 18-3p “[t]he ALJ was [] required to determine whether
there was good cause for allegedly failing to follow prescribed treatment.” Dkt. No. 16 at 23-34. This is
inapplicable because plaintiff was not prescribed medications or a treatment plan that he then did not
follow; rather, he repeatedly expressed that he did not want to be prescribed medications and preferred
holistic alternatives, which his providers abided by. See T. 222, 242-43; see also Titles Il & XVI: Failure
to Follow Prescribed Treatment, SSR 18-3P, 2018 WL 4945641, at “2-3 (S.S.A. Oct. 2, 2018).
30
plaintiff's holistic treatment, the ALJ did not otherwise acknowledge or address any of
the reasons offered by plaintiff to explain his ‘conservative’ treatment . . . [but] the ALJ
stated that plaintiff ‘did not take medication[,]’ without any consideration of plaintiff's
reason for such avoidance -- the fear of side effects.”).
d. Activities of Daily Living
° The ALJ appropriately considered plaintiff's actives of daily living. In determining
that plaintiff's subjective complaints were inconsistent with the objective record, the ALJ
explained that plaintiff stated he could cook, clean, do laundry, go shopping, and attend
to his personal needs. See T. at 21. The ALJ also noted that plaintiff did yoga, went for
walks, attended meditation group, and “engage[d] in childcare[.]” Id. “[W]hile a claiman
need not be an invalid to be found disabled under the Social Security Act, .. .
m| Consideration of daily activities [is] fair game when assessing the intensity and
persistence of a plaintiff's symptoms[.]” Julie B. v. Comm’r of Soc. Sec., No. 5:20-CV-
977 (DNH), 2022 WL 58384, at *7 (N.D.N.Y. Jan. 6, 2022) (citations and quotation
marks omitted). The record indicates that plaintiff goes grocery shopping;? helps carry
the laundry for his mother; takes the garbage to the dump once a week; helps his father
get up when he falls; and meditates, does yoga, and goes for a walk every day. See T.
at 40-44. The ALJ did not rely solely on these activities to discount plaintiff's subjective
complaints; rather, the ALJ’s consideration of these activities in conjunction with
plaintiff's refusal to take prescription medication and the objective record constitutes
substantial evidence in support of plaintiff's RFC. See Shane C., 2021 WL 5906236, at
9 Plaintiff testified that he “go[es] grocery shopping [for his parents] once a week, which usually takes
[him] about 45 minutes” and he goes grocery shopping for himself “every day” for “about five or ten
minutes because it’s harder for [him] to go 40, 45 minutes.” T. at 40-41.
31
“12 (affirming the ALJ’s consistency analysis “[b]ecause the ALJ provided multiple
specific and valid reasons declining to accept fully plaintiff's subjective reports of
limitations[.]’); Rolland M. v. Saul, No. 8:19-CV-1624 (MAD), 2020 WL 7356716, at *5
(N.D.N.Y. Dec. 15, 2020) (explaining the ALJ’s consideration of the plaintiff's
complaints, daily activities, and “effort to work” and stating that “[p]erhaps alone each of
| these reasons might be insufficient, but the ALJ properly considered the totality of
multiple statements made by [the p]laintiff as to his impairments in weighing his
credibility.”). As the Court finds no error in the ALJ’s consistency analysis, remand is
not warranted on this ground.
B. ALJ’s Step-Five Determination
Plaintiff contends that “[t]he ALJ did not identify evidence consistent with the
ability to perform medium work without the environmental limitations” and that the
vocational expert’s (“VE”) testimony cannot form “the basis for the RFC finding.” Dkt.
No. 16 at 9.
During plaintiff's hearing the ALJ presented a hypothetical to the VE limiting
plaintiff to not being able to “tolerate concentrated exposure to respiratory irritants,
extreme cold, heat, or humidity.” T. at 48. The VE explained that “[t]here’s lots of jobs,
however, when | go through the environmental conditions, there’s always issues of
extreme cold, heat, humidity, atmospheric conditions and irritants . . . [t]hat would
eliminate medium level work at the unskilled level[.]” Id. at 49. The ALJ then asked,
“what if | amended it to provide that the individual . . . cannot tolerate concentrated
exposure to respiratory irritants, but remove the heat, cold, and humidity issue.” Id.
32
The VE then testified that there would be jobs available at the medium-work level. See
id.
When an ALJ uses a VE, the ALJ “must present the VE with a set of hypothetical
facts to determine whether plaintiff retains the capacity to perform any specific job.” Gill
v. Astrue, No. 1:10-CV-985 (MAD/ATB), 2011 WL 4352410, at *7 (N.D.N.Y. Sept. 15,
2011) (citing Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981)), report and
recommendation adopted, No. 1:10-CV-985 (MAD/ATB), 2011 WL 4352719 (N.D.N.Y.
Sept. 15, 2011). An ALJ may rely on a VE’s testimony regarding a hypothetical as long
as the hypothetical is based on substantial evidence, and accurately reflects the
limitations and capabilities of the claimant involved. See Calabrese v. Astrue, 358 F.
App’x 274, 276 (2d Cir. 2009) (summary order) (internal quotation marks and citations
m| Omitted).
The ALJ did not base the RFC determination on the VE’s testimony, and instead
found that Dr. Mohanty’s cold, heat, and humidity limitation was inconsistent with Dr.
Conroy’s opinion indicating that plaintiff can function outdoors and with plaintiff's
testimony indicating that he was not more than minimally bothered by the heat and cold.
See T. at 19, 46. The ALJ also did not err in presenting alternative hypotheticals when
| asking the VE whether there would be work available to plaintiff. Cf. Harry B. v. Comm’
of Soc. Sec., No. 3:20-CV-227 (ATB), 2021 WL 1198283, at *4 (N.D.N.Y. Mar. 30,
2021) (finding no error at step-five where the RFC was based on substantial evidence
and the ALJ presented one hypothetical and “[t]he ALJ then modified the exertional
level to sedentary and took out the sit/stand option. The VE testified that there would
still be jobs that plaintiff could perform.”). As this Court has determined that the ALJ’s
33
RFC determination is supported by substantial evidence, it also concludes that the
ALJ's hypothetical was proper, and her step-five determination is supported by
substantial evidence. See Padilla v. Colvin, No. 10-CV-4762 (CM/FM), 2013 WL
4125039, at *8 (S.D.N.Y. Aug. 15, 2013) (limiting the plaintiff to medium work and
explaining that “[b]ecause [the plaintiff] was limited by the requirement that he work in a
| clean-air environment, however, the ALJ deferred to [the VE’s] testimony concerning
whether [the plaintiff] was capable of performing jobs that existed in significant numbers
in the national economy|]” and “[a]lthough [the plaintiff] complained of occasional dizzy
spells, fevers, headaches, and difficulty breathing due to nasal congestion, he did not
testify that any of these problems hindered his ability to work.”).
I
VI. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby:
ORDERED, that the Commissioner's decision is AFFIRMED; and it is further
ORDERED, that the Commissioner’s cross-motion for judgment on the pleadings
(Dkt. No. 19) is GRANTED, and plaintiff's motion for judgment on the pleadings (Dkt.
m| No. 16) is DENIED; and it is further
ORDERED, that the Clerk of the Court serve copies of this Memorandum-
Decision and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: February 23, 2022 ( ar be □□ he wim
Albany, New York Christian F. Hummel
U.S. Magistrate Judge
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