Opinion

Oakes v. Commissioner of Social Security

Court: District Court, N.D. New York
Filed: Feb 3, 2022
Cited by: 0 cases
Authority: More cited than 26.9%

“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”

How later courts described this case

“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”
“Where the evidence of record permits [the court] to glean the rationale of an ALJ's decision, [the ALJ is not required to explain] why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

TODD E. O., SR.,

Plaintiff,

Vv.

No. 5:20-CV-1046

a COMMISSIONER OF SOCIAL SECURITY, (CFH)

Defendant.

APPEARANCES: OF COUNSEL:

Amdursky, Pelky Law Firm AMY CHADWICK, ESQ.

26 East Oneida Street

Oswego, New York 13126

Attorneys for plaintiff

Social Security Administration LISA SMOLLER, 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’

Todd E. O. Sr.? (‘plaintiff’) brings this action pursuant to 42 U.S.C. § 405(g)

seeking review of a decision by the Commissioner of Social Security (“the

Commissioner”) denying her application for disability insurance benefits. See Dkt. No. 1

' 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.

(“Compl.”). Plaintiff moves for reversal and remand for the determination of benefits.

See Dkt. No. 13. The Commissioner opposes the motion. See Dkt. No. 14. For the

following reasons, the Commissioner's decision is affirmed.

° I. Background

On April 14, 2017, plaintiff filed a Title XVI application for supplemental security

income. See T. at 171.° Plaintiff initially alleged a disability onset date of August 4,

2010, which was later amended to April 14, 2017. See id. at 171, 240. The Social

Security Administration (“SSA”) denied plaintiff's claim on June 22, 2017. See id. at

101-103. Plaintiff requested a hearing, see id. 111, and a hearing was held on March

2019, before Administrative Law Judge (“ALJ”) Kenneth Theurer. See id. at 31-69.

On March 25, 2019, the ALJ issued an unfavorable decision. See id. at 10-21. On July

13, 2020, the Appeals Council denied plaintiff's request for review. See id. at 1-5.

Plaintiff commenced this action on September 4, 2020. See Compl.

ll. Legal Standards

A. Standard of Review

In reviewing a final decision of the Commissioner, a district court may not

determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),

3 “T.” followed by a number refers to the pages of the administrative transcript filed by the Commissioner.

See Dkt. No. 12. 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.

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..

m| Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (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. See Martone v.

Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986).

However, if the correct legal standards were applied and the ALJ’s finding is supported

by substantial evidence, such finding must be sustained “even where substantial

evidence may support the plaintiff's position and despite that the court’s independent

analysis of the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 80

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

o impairment is an affliction that is so severe that it renders an individual unable to

continue with his or her previous work or any other employment that may be available to

him or her based upon age, education, and work experience. See id. § 423(d)(2)(A).

Such an impairment must be supported by “medically acceptable clinical and laboratory

diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is

“based on objective medical facts, diagnoses[,] or medical opinions inferable from [the]

m| facts, subjective complaints of pain or disability, and educational background, age, and

work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3

(S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.

1983)).

The Second Circuit employs a five-step analysis, based on 20 C.F.R.

§ 404.1520, to determine whether an individual is entitled to disability benefits:

First, the [Commissioner] considers whether the claimant is

currently engaged in substantial gainful activity.

If he [or she] is not, the [Commissioner] next considers

whether the claimant has a “severe impairment” which

significantly limits his [or her] physical or mental ability to do

basic work activities.

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

whether, based solely on medical evidence, the claimant has

an impairment which is listed in Appendix 1 of the

regulations. If the claimant has such an impairment, the

[Commissioner] will consider him [or her] disabled without

considering vocational factors such as age, education, and

work experience; the [Commissioner] presumes that a

claimant who is afflicted with a “listed” impairment is unable

to perform substantial gainful activity.

Assuming the claimant does not have a listed impairment,

the fourth inquiry is whether, despite the claimant's severe

impairment, he [or she] has the residual functional capacity

5 to perform his [or her] past work.

Finally, if the claimant is unable to perform his [or her] past

work, the [Commissioner] then determines whether there is

other work which the claimant could perform.

Berry, 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

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 April 14, 2017, his

application date. See T. at 12. At step two, the ALJ found that plaintiff had the followin

severe impairments: “osteoarthritis of the knees, history of a shoulder impairment,

plantar fasciitis, gout, migraines, asthma, degenerative disease of the lumbar spine,

depression and anxiety[.]” 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 13. The ALJ considered Listings 12.04 for depressive, bipolar, and related

disorders; and 12.06 for anxiety and obsessive-compulsive disorders. See id. at 14.

The ALJ found that plaintiff had moderate limitation in understanding, remembering, and

o applying information; interacting with others; concentrating, persisting, or maintaining

pace; and adapting or managing himself. See id. at 14-15.4

Before reaching step four, the ALJ concluded that plaintiff retained the residual

functional capacity (“RFC”) to perform light work as defined in 20 CFR 416.967(b)

except

he can occasionally lift and carry twenty pounds; frequently lift and carry

ten pounds; sit for up to six hours; stand or walk for approximately six

hours in eight hour day with normal breaks; occasionally climb ramps or

stairs; never climb ladders, ropes or scaffolds; can perform occasional

balance, stooping, kneeling, crouching, and crawling. He should avoid

concentrated exposure to smoke, dust, or respiratory irritants. The

claimant can understand and follow simple instructions and directions;

perform simple tasks with or without supervision; can maintain

attention/concentration for simple tasks; regularly attend to a routine and

maintain a schedule; can relate to and interact appropriately with others

(coworkers, supervisors and the public) to the extent necessary to carry

out simple tasks—i.e. he can ask for help when needed: handle conflicts

with others; state his own point of view; initiate or sustain a conversation

and understand and respond to physical, verbal and emotional social cues

but he should avoid work requiring more complex interaction or joint

efforts with coworkers to achieve work goal. The claimant is limited to

simple, routine, and repetitive tasks in a work environment involving only

simple, work-related decisions; with few, if any, work place changes.

4 The ALJ also considered Listings as it related to plaintiff's gout, shoulder impairment, plantar fasciitis

and osteoarthritis of the knees, asthma “with or without consideration of obesity,” lumbar spine

impairment “with or without consideration of obesity,” and epilepsy as “[t]here is not specific [L]isting for

migraines[.]” T. at 14; 13. Plaintiff does not challenge these determinations. See Dkt. No. 13.

T. at 16. At step four, the ALJ determined that plaintiff had no relevant past work. See

id. at 20. 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. at 20. Thus, the ALJ determined

that plaintiff had “not been under a disability, as defined in the Social Security Act, since

o April 14, 2017, the date the application was filed[.]” Id. at 21.

IV. Arguments?

Plaintiff argues that the ALJ's RFC determination and consistency finding related

to plaintiff's subjective allegations of pain and intensity are not supported by substantial

evidence, and that the ALJ inappropriately discounted the opinion of plaintiffs therapist,

Julie Hogle, LCSW-R. See Dkt. No. 13. The Commissioner argues that the ALJ’s RFC

determination is supported by substantial evidence, the ALJ afforded appropriate weight

to Ms. Hogle’s opinion, and the ALJ properly evaluated plaintiff's subjective complaints.

See Dkt. No. 14.

tr!

V. Discussion

A. RFC Determination

A plaintiffs 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

5 The Court's citations to the parties’ briefs refer to the pagination generated by CM/ECF in the pages’

headers.

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 Il & XVI: Capability to Do Other Work-The

Medical-Vocational Rules As A Framework for Evaluating Solely Nonexertional

m| 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). A mental health “RFC assessment process

requires ‘a more detailed assessment by itemizing various functions contained in the

broad categories found in paragraphs B and C of the adult mental disorders listings in

12.00 of the Listing of Impairments ....” Linda E. v. Saul, No. 3:19-CV-357 (NAM),

2020 WL 1875671, at *8 (N.D.N.Y. Apr. 15, 2020) (quoting Titles || & XVI: Assessing

Residual Functional Capacity in Initial Claims, SSR 96-8P, 1996 WL 374184, at *4 (July

2, 1996)).

“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, “[a]n

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

*T.

“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

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 Social Security Ruling (“SSR”) 16-3p: Titles

Il 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.” Id. (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

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

required by SSR 16-3p.” Id. (“The ALJ provided significant detail regarding the basis of

m| 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).

1. Prior Administrative Decision

As an initial matter, plaintiff argues that “an ALJ previously considered the

records through 2010 and found they warranted an RFC limited to sedentary work” and

“[t]he record does not show improvement, but rather, shows worsening in [p]laintiff's

conditions and development of additional impairments[.]” Dkt. No. 13 at 18; see T. at

73-81. The Commissioner argues that the ALJ was not required to give the 2010

decision any deference. See Dkt. No. 14 at 10.

On August 3, 2010, an ALJ determined that plaintiff had not been under disability

“at any time from March 12, 2005 . . . through September 30, 2009” and that plaintiff

had the RFC to perform sedentary work. T. at 81; 76. For plaintiff's 2017 claim that is

presently at issue, the ALJ explained, “[a]s for medical opinions and prior administrative

medical finding[s], | will not defer or give any specific evidentiary weight, including

o controlling weight, to any prior administrative medical finding(s)[.]” Id. at 19. To support

the ALJ’s decision to review the record de novo, the Commissioner cites SSA

Acquiescence Ruling 98-3(6), which explains that

if the subsequent claim involves deciding whether the claimant is disabled

during a period that was not adjudicated in the final determination or

decision on the prior claim, SSA considers the issue of disability with

respect to the unadjudicated period to be a new issue that prevents the

application of administrative res judicata. Thus, when adjudicating a

subsequent disability claim involving an unadjudicated period, SSA

considers the facts and issues de [] novo in determining disability with

respect to the unadjudicated period.

4 Soc. Sec. Disability Claims Prac. & Proc. App’x 3, Acquiescence Rulings (“AR”) 98-

3(6) (2nd ed.); see Dkt. No. 14 at 10. “The Court is not aware of any statement by the

Second Circuit . . . directly addressing this [] issue.” Pisarek v. Saul, No. 1:18-CV-0200

(CJS), 2019 WL 4750518, at *6 (W.D.N.Y. Sept. 30, 2019). As such, according to SSA

policy, the ALJ did not err in affording no deference to the 2010 administrative decision.

tr!

See T. at 19, 73-81; see Wessel v. Colvin, No. 3:14-CV-00184 (AVC), 2015 WL

12712297, at *5 (D. Conn. Dec. 30, 2015) (“When a plaintiff's claim involves a different

unadjudicated time period, an ALJ is not bound by a prior ALJ’s findings.”).

2. Physical Limitations and Consistency of Allegations

In determining severity, the ALJ explained that plaintiff had “a history of bilateral

carpal tunnel releases in November and December 2010.” T. at 12 (citing id. at 1139);

see id. at 1143. The ALJ determined that, “[w]hile the claimant had a positive Tinel’s

sign at a January 2, 2019[,] office visit, he was found to have no atrophy of the hands;

4/5 grip, which, while reduced, still represents good functional strength; normal

sensation and full ranges of motion of the wrists[.]’ Id. at 12 (citing id. at 1143).

Additionally, “[a]t a June 12, 2017[,] consultative internal medicine evaluation, the

| claimant had full ranges of motion of the wrists and elbows, intact hand/finger dexterity

and 5/5 grip bilaterally[.]” Id. (citing id. at 595). The ALJ also explained that plaintiff can

drive a car, care “for his personal needs without assistance,” cook, clean, and do

laundry. Id. at 13 (citing id. at 45, 594). Finally, the ALJ noted that “[t]here are no

recent EMG/NC studies of record and there is little in the record relating to carpal tunnel

issues . . .”; therefore, “[b]ased on the minimal findings of record and the ability to

m| perform a wide range of activities of daily living, | find that the claimant has failed to

satisfy his burden of establishing that his carpal tunnel syndrome is severe.” Id.

Regarding plaintiff's subjective complaints, the ALJ recounted his testimony that

he has pain in his knees, lower back, and shoulders; gets gout two- to three-times a

month for days at a time; uses an inhaler for his asthma; and has migraines two- to

three-times a month. See T. at 16, 44, 47, 49, 51-53. The ALJ acknowledged plaintiff's

| ‘testimony that he has gout flare-ups, sometimes every other month, sometimes twice a

month, and it affect his ankles and sometimes his left wrist.” Id. at 16; see id. at 52.

Additionally, plaintiff “testified that he has depression and anxiety and sometimes has

panic attacks, including while driving due to excessive noise and commotion . . . [and]

he gets depressed over not being able to do what he wants and not being able to help

his family and himself.” Id. at 16-17; see id. at 57-60. Further, the ALJ recounted that

plaintiff “uses an inhaler in the morning and [] 2-3 times during the week”; “cannot bend

very much with his back [and] has to sit to the side at times”; “can stand for 10-15

minutes”; “is ‘lucky’ if he can read through a page of material due to poor concentration,

and can concentrate for maybe 20 minutes”; and “does some things around the house

daily and watches some television.” Id. at 17; see id. at 45, 49, 55-57, 61.

° Next, the ALJ extensively reviewed plaintiff's objective medical records. See T.

at 17-18. The ALJ first noted that plaintiff “nad two back surgeries, with the most recent

procedure on October 8, 2018 being redo laminectomy at L5, a new laminectomy at L4,

removal of L5-S1 instrumentation with new instrumentation at L4-5[.]’ Id. at 17 (citing

id. at 273, 1036). Then, plaintiff's lumbar spine MRI on March 18, 2018, compared to

prior imaging, showed “improved now mild L4-5 central canal stenosis and L3-4

| increased bilateral facet joint hypertrophy with moderate to severe central canal

stenosis and increased moderate bilateral neuroforaminal stenosis[.]” Id. (citing id. at

1036-37). Moreover, the ALJ observed that, “[dJespite [plaintiff's] complaints of constan

low back discomfort, [he] saw an orthopedist in May 2016 but then again not until

February 21, 2018, had follow ups on March 16, 2018, and April 20, 2018, and has not

seen an orthopedist since then for his low back[.]” Id. at 17 (citing id. at 842-71, 985-

1011, 1051-56). The ALJ also explained that plaintiff had “EMGs done August 2, 2018

at the pain clinic [which] were suggestive of bilateral L5 radiculopathies, without acute

denervation, entrapment mononeuropathy or generalized large fiber peripheral

neuropathy[.]” Id. (citing id. at 856).

As to plaintiff's knees, the ALJ explained that he “has a history of arthroscopies

of the knees bilaterally for ACL tears and laxity from 2001-2005” but “[i]Jt appears he did

well thereafter, until he complained of left knee discomfort in 2017. An x-ray taken on

June 13, 2017, was read as showing degenerative joint disease[.]” T. at 17 (citing id. at

264-559, 597). However, X-rays of plaintiff's left knee on “June 28, 2017 were read as

showing no acute bone abnormality, with findings suggestive of a loose body; no right

knee x-rays were taken.” Id. (citing id. at 811). On June 30, 2017, the “orthopedist read

the X-rays .. . as showing no loose body,” but there was “‘some’ degenerative change o

the left knee, an intact ACL and no acute abnormalities[.]’ Id. (citing id. at 1015).

Plaintiff “did not return to the orthopedist until March 22, 2018, at which time he initially

complained of bilateral knee discomfort and was found to have small effusions and

‘fairly good’ motion of both knees[.]” Id. The ALJ noted that “there is no documentation

showing a return to the orthopedist for further evaluation or treatment of the knees since

m|[then.]” Id. (citing id. at 1020).

As to plaintiff's gout, the ALJ noted that “[a] review of the record confirms

[plaintiff's] testimony that his gout is quite episodic, with no evidence showing a

frequency of 2-3 times a month, however.” T. at 17 (citing id. at 888-956, 1021-34).

Moreover, the ALJ acknowledged that plaintiffs “left ankle appears to be the most

frequently affected . . . [t]he gout is treated with Prednisone and resolves in several

days” and “the record show[s] some swelling on examinations[.]’ Id. (citing id. at 888-

956, 1021-34). The ALJ summarized plaintiff's functional abilities:

[c]lincial findings of record generally document a normal gait and stance,

moderately reduced ranges of motion of the lumbar spine, full ranges of

motion of the shoulders, 5/5 lower extremity strength, 5/5 ankle strength,

intact lower extremity sensation with only several episodes of decreased

sensation of the left calf, no muscle atrophy of the lower extremities,

negative straight left raising, 5/5 grip strength with one episode of 4/5 left

grip and 5/5 upper extremity strength.

Id. at 17-18 (citing id. at 593-99, 822-73, 888-956, 985-1035, 1051-57, 1138-48).

Finally, the ALJ addressed plaintiff's shoulder pain. See T. at 18. The ALJ noted

that “[t]here is no evidence showing the claimant has received treatment for or

evaluation of the shoulders since filing for benefits.” Id. The ALJ recounted that plaintiff

had “a remote history of right shoulder arthroscopies in 1997” but “was found to have

full ranges of motion in the neck and shoulders bilaterally at the June 2017 consultative

internal medicine evaluation, with full ranges of motion of the elbows and wrists and

intact hand and finger dexterity[.]” Id. (citing id. at 297-300, 595). Additionally, he noted

that plaintiff “was diagnosed with right plantar fasciitis in February 2015, but it does not

appear that he received treatment for this since filing for benefits, nor did he mention it

at the June 12, 2017[,] consultative internal medicine evaluation[.]” Id. at 18 (citing id. a

593-96). Despite the lack of record evidence, the ALJ explained that plaintiff's

“remote history of right shoulder surgeries and plantar fasciitis have been considered in

articulating a residual functional capacity. The claimant’s BMls in the 30s also have

been considered in articulating a residual functional capacity.” Id.

a. Physical RFC

Plaintiff contends that “[t]he evidence, which includes four knee surgeries, two

lower back surgeries, ankle impairment, gout attacks involving the feet and ankles, and

obesity does not support the conclusion that the [p]laintiff would be able to stand and

walk for six hours per day.” Dkt. No. 13 at 16. Plaintiff argues that the ALJ erred in not

finding his carpal tunnel syndrome severe or considering the limiting effect of it. See id.

at 21. Additionally, because of his carpal tunnel syndrome, plaintiff avers that his RFC

should include a limitation on handling, fingering, and feeling. See id. at 20-21. The

Commissioner argues that the ALJ’s RFC is supported by substantial evidence, and tha

plaintiff seeks “to have this Court reweigh the evidence, which is impermissible.” Dkt.

No. 14 at 5.

The Court determines that the ALJ conducted an extensive review of the

objective medical evidence such that the Court can “glean [his] rationale” in crafting

o plaintiff's RFC. Barringer v. Comm’r of Soc. Sec., 358 F. Supp. 2d 67, 79 (N.D.N.Y.

2005) (“Where the evidence of record permits [the court] to glean the rationale of an

ALJ's decision, [the ALJ is not required to explain] why he considered particular

evidence unpersuasive or insufficient to lead him to a conclusion of disability.”) (citation

and internal quotation marks omitted) (alterations in original). Plaintiffs contention that

“there is no indication that” the ALJ considered the limiting effects of his carpal tunnel

Syndrome is inaccurate. See Dkt. No. 13 at 21. After finding that plaintiff's carpal tunne

syndrome was not a severe impairment, the ALJ explicitly discussed the findings in the

record that reflected plaintiffs carpal tunnel diagnosis, occasionally-reduced grip

strength, and intact dexterity. See T. at 12-13 (citing id. at 594-95, 1139, 1143). The

record reflects plaintiff's carpal tunnel diagnosis, but the “mere presence of a disease or

impairment, or establishing that a person has been diagnosed or treated for a disease

| Or impairment is not, by itself, sufficient to render a condition severe.” Taylor v. Astrue,

32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012) (citation and internal quotation marks omitted)

see T. at 1143-44. There is nothing in the record indicating that a greater limitation is

warranted as it reflects that plaintiff's hand and finger dexterity were intact and he had

“5/5 grip strength with one episode of 4/5 left grip[.]” T. at 18, 595, 1144; see, e.g.,

Trifiletti v. Comm’r of Soc. Sec., No. 1:14-CV-1427 (GTS/WBC), 2016 WL 536623, at *4

(N.D.N.Y. Jan. 22, 2016), report and recommendation adopted, 2016 WL 552953

(N.D.N.Y. Feb. 10, 2016) (affirming where “[t]he ALJ assessed [the] [p]laintiff's carpal

tunnel syndrome and substantial evidence supported the ALJ’s ultimate determination

that [the] [p]aintiff had no limitations in handling and fingering due to her carpal tunnel

syndrome” because the plaintiff had “fine motor activity and finger dexterity were intact

and her grip strength was 5/5 bilaterally.”).

To support his argument that he requires greater limitations, plaintiff cites to

records that precede his onset date. See Dkt. No. 13 at 15-22. “Medical evidence that

predates the alleged disability onset date is ordinarily not relevant to evaluating a

claimant's disability.” Moore v. Comm’r of Soc. Sec., No. 1:16-CV-270 (DJS), 2017 WL

1323460, at *9 (N.D.N.Y. Apr. 10, 2017) (citations and quotation marks omitted).

Therefore, “[a]lthough it is within an ALJ’s purview to consider pre-onset date evidence,

it is not required.” James N. v. Comm’r of Soc. Sec., No. 3:18-CV-1324 (CFH), 2020

WL 1140498, at *5 (N.D.N.Y. Mar. 6, 2020).

The ALJ noted that plaintiff had right shoulder surgery “in the 1990s[,]” “was

diagnosed with right plantar fasciitis in February 2015,” and had “a history of

arthroscopies of the knees bilaterally for ACL tears and laxity from 2001-2005],]” but did

Not otherwise cite to evidence predating plaintiff's onset date. T. at 16, 18. Plaintiff

does not argue that the ALJ erred in primarily referencing records from after his alleged

onset date, and “the key question . . . is whether [p]laintiff demonstrated her

[impairments] would result in a functional limitation beyond those the ALJ already

articulated in her RFC.” Adanma T. v. Comm'r of Soc. Sec., No. 5:20-CV-00173 (TWD)

2020 WL 6637598, at *4 (N.D.N.Y. Nov. 12, 2020) (finding no error in the ALJ’s decision

where “most of the evidence [the] [p]laintiff references in her argument pre-dates her

alleged onset date[,]’ the ALJ did not explicitly reference the evidence, but the ALJ’s

RFC was “inclusive of” the referenced impairments. ).

Plaintiff cites to 2018 records wherein a physician found that “[f]rom his knees

alone, | would say at this point in time he is 50% disabled[]” and “[t]he percentage of

temporary impairment [related to plaintiff's back] is 100%.” T. at 1019; 837; see Dkt.

No. 13 at 17. These assessments were a part of plaintiff's worker’s compensation case.

See T. at 837, 1019. As the Commissioner explains, “a decision by any other

government agency or nongovernmental entity . . . is not binding” on the SSA. 20

C.F.R. § 416.904; Dkt. No. 14 at 7.° “But, despite differing definitions and eligibility

standards, disability determinations made by other government agencies (e.g., Veteran

m| Administration, state workers’ compensation boards) are entitled to some weight and

should be considered.” Bartko v. Comm'r of Soc. Sec., No. 1:13-CV-373 (GLS/ESH),

2014 WL 4973158, at *6 (N.D.N.Y. Sept. 30, 2014) (citations and quotation marks

omitted). The ALJ did not restate the worker’s compensation disability findings, but he

explicitly referenced the records, explaining that plaintiff had a follow-up appointment for

his back pain on “April 30, 2018, and ha[d] not seen an orthopedist since then” and he

had “small effusions” but “fairly good’ motion of both knees.” T. at 17, 837, 1019; see

Bartko, 2014 WL 4973158, at “7 (citations omitted) (“An ALJ’s failure to cite specific

evidence does not indicate that such evidence was not considered.”).

8 “(T]he standards which regulate workers’ compensation relief are different from the requirements which

govern the award of disability insurance benefits under the Act. Accordingly, an opinion rendered for

purposes of workers’ compensation is not binding on the Secretary.” Rosado v. Shalala, 868 F. Supp.

471, 473 (E.D.N.Y. 1994); see also William J. D. v. Comm’r of Soc. Sec., No. 1:17-CV-0981 (DEP), 2018

WL 6671533, at *6 (N.D.N.Y. Dec. 19, 2018).

The remaining records plaintiff highlights relating to his back reflect his surgeries;

that he had bilateral facet joint hypertrophy, moderate-to-severe central canal stenosis,

moderately-limited range of motion of the lumbar spine and bilateral radiculopathy; and

that he was referred to a pain clinic. See Dkt. No. 13 at 17-18. The ALJ considered

these records. See T. at 17. Moreover, although in March 2018 plaintiff had a

“modestly antalgic” gait, id. at 831, the record reflects that plaintiff frequently appeared

to be in no acute distress, had a normal gait and stance, and “5/5 lower extremity

strength.” Id. at 18, 845, 856, 869, 1010, 1053; see David B. C. v. Comm’r of Soc. Sec.,

No. 1:20-CV-01136 (FJS/TWD), 2021 WL 5769567, at *12 (N.D.N.Y. Dec. 6, 2021)

(affirming where “the ALJ considered the medical and other evidence in the record in

making an RFC determination, provided a proper analysis of the evidence in the record,

provided sufficient analysis to permit the Court to meaningfully review the

decision.”).

As to his knees, the ALJ referenced the records that plaintiff highlights—left knee

pain in June 2017 and an X-ray showing “some degenerative changes|[] . . . ACL tunnel

are intact[,]” no loose body, and no acute abnormalities. T. at 1015; 17. The ALJ

correctly noted that plaintiff was not seen again for his left knee pain until March 22,

2018, and at this time, “[h]is knees ha[d] small effusions” with “‘fairly good’ motion in

both of his knees.” Id. at 1019; see Franklin v. Saul, 482 F. Supp. 3d 250, 265

(S.D.N.Y. 2020) (explaining that “the ALJ did acknowledge [the plaintiff's] severe

impairments of his knees and back, . . . and this was reflected in an RFC to perform

sedentary-light work as opposed to the medium-to-heavy work[.]”).

As to plaintiff's gout, the record reflects almost monthly flare ups throughout

2017, 2018, and 2019. See Dkt. No. 13 at 19-20. The ALJ “review/[ed] [] the record

confirm[ing] the claimant’s testimony that his gout is quite episodic[.]” T. at 17. Plaintiff

contends that his gout flares cause “his ability to stand and walk [to be] significantly

limited.” Dkt. No. 13 at 18. The record indicates that when plaintiff was experiencing

o gout flares, he sometimes had a limited range of motion and would experience pain in

his joints, but otherwise had a normal gait, full range of motion in his extremities, and

the “[o]verall findings were normal.” T. at 892; 568, 804, 814, 892, 914, 926, 935, 945,

978, 1090, 1104.

Finally, as to his shoulders and obesity, plaintiff states that he had two shoulder

surgeries in 1997 and continued to have pain with movement, and that as of December

he was obese. See Dkt. No. 13 at 7-8. Plaintiff argues that his obesity, in

conjunction with his knee and back surgeries, ankle impairment, and gout attacks “do

not support the conclusion that [he] would be able to stand and walk for six hours a

day.” Id. at 16. Plaintiff makes no argument related his shoulder impairment; rather, he

recites the medical evidence, and states that he alleged it to be a severe impairment

and the ALJ found it to be severe. See Dkt. No. 13 at 8, 11-12; see T. at 12. The ALJ

expressly considered plaintiffs obesity and “history of a shoulder impairment” and noted

their “consider[ation] in articulating a residual functional capacity.” T. at 12, 18; see

Lewis v. Comm'r of Soc. Sec., No. 3:16-CV-1267 (WBC), 2018 WL 557869, at *4

(N.D.N.Y. Jan. 16, 2018) (“[i]t is not enough for [the] [p]laintiff to merely disagree with

the ALJ’s weighing of the evidence or to argue that the evidence in the record could

support her position.”).

Plaintiff fails to identify any records that indicate greater physical functional

limitations than those outlined in the RFC; thus, the ALJ’s decision is supported by

substantial evidence. See David B. C., 2021 WL 5769567, at *12 (citation and

quotation marks omitted) (“[I]t is [the] [p]laintiff's burden to prove a more restrictive RFC

than the RFC assessed by the ALJ and [the] [p]laintiff failed to do so.”).

° b. Consistency of Allegations

In finding that plaintiff's allegations of pain and intensity were not consistent with

the record, the ALJ reviewed the objective evidence as detailed above. See supra at

11-15. Plaintiff contends that the ALJ’s analysis is internally inconsistent because

“Counselor Hogle[’s] opinion was discredited in part because [p]laintiff was able to

obtain necessary treatment... [but] [aJt the same time . . . [p]laintiff was also

discredited for not obtaining enough treatment”; therefore, “[t]his put [p]laintiff in the

impossible position of being unable to establish his physical impairments because he

did not get enough treatment, while being unable to establish his mental impairments

because he sought too much treatment.” Dkt. No. 13 at 25. The ALJ found plaintiff's

complaints of constant pain inconsistent with the record, in part, because he (1) “saw an

orthopedist in May 2016 but then again not until February 21, 2018”; (2) had a history of

| arthroscopies of the knees from 2001-2005 and “did well thereafter, until he complained

of left knee discomfort in 2017”; and (3) had a remote history of right shoulder

arthroscopies in 1997 and was diagnosed with right plantar fasciitis in 2015 but did not

“receive[] treatment for this since filing for benefits.” T. at 17-18. The ALJ discounted

Ms. Hogle’s opinion, in part, because of plaintiff's ability to interact with his other care

providers; travel long distances; and relay his wants, needs, and “medical, social and

vocational histories.” Id. at 19; 18.

The Court finds no inconsistency between these separate findings. That the ALJ

discounted Ms. Hogle’s severe mental limitations because plaintiff was able to interact

and communicate with, and travel to, his various providers is not inconsistent with the

ALJ’s decision to discount plaintiff's allegations of pain because he did not seek

continuous treatment for his physical limitations. See T. at 17-20. Regardless, the

ALJ’s decision is supported by substantial evidence as he thoroughly reviewed the

objective evidence and summarized plaintiff's mostly normal gait, “moderately reduced

ranges of motion of the lumbar spine, full ranges of motion of the shoulders, 5/5 lower

extremity strength, and 5/5 ankle strength, intact lower extremity sensation . . . no

Muscle atrophy of the lower extremities, [and] negative straight leg raising[.]’ Id. at 18;

see Brian C. v. Comm'r of Soc. Sec., No. 5:20-CV-534 (DJS), 2021 WL 1946503, at *4

(N.D.N.Y. May 14, 2021) (“It is clear to the Court that the ALJ here found that... the

intensity and persistence of the [plaintiff's] alleged pain [is] unsubstantiated” where the

ALJ reviewed the reviewed the plaintiff's medical records reflecting both complaints of

pain and objective findings, which indicated mild impairments with full range of motion.).

Moreover, as explained below, the ALJ appropriately reviewed the mental health

findings of record which indicated that plaintiff continuously presented as depressed an

anxious, but his limitations were not as severe as Ms. Hogle opined. See T. at 19-20;