Ablan-Woodrow v. Commissioner of Social Security

NORTHERN DISTRICT OF NEW YORK

JULIE A.,

Plaintiff,

v.

8:20-CV-1237

COMMISSIONER OF SOCIAL (ATB)

SECURITY,

Defendant.

VICTORIA H. COLLINS, ESQ., , for Plaintiff

NATASHA OELTJEN, Special Asst. U.S. Attorney, for Defendant

ANDREW T. BAXTER

United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER

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

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

accordance with 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 73.1, and

the consent of the parties. (Dkt. Nos. 3, 4).

I. PROCEDURAL HISTORY

On December 8, 2016, plaintiff protectively filed an application for a period of

disability and disability insurance benefits (“DIB”), alleging that she became disabled

on December 18, 2016. (Administrative Transcript (“T.”) 63, 189). Her application was

denied initially on May 26, 2017. (T. 63). Plaintiff requested a hearing, which was held

by video conference on May 14, 2019 before Administrative Law Judge (“ALJ”)

Michael Shilling. (T. 37-62). Plaintiff and Vocational Expert (“VE”) Janice S. Hasert

testified at the hearing. (Id.) ALJ Shilling issued an unfavorable decision on June 4,

denied plaintiff’s request for review on August 14, 2020. (T. 1-5 (AC Denial), 10-21

(Hearing Decision)).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

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

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

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

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

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

addition, the plaintiff’s

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

that [she] is not only unable to do [her] previous work but cannot,

considering [her] age, education, and work experience, engage in any other

kind of substantial gainful work which exists in the national economy,

regardless of whether such work exists in the immediate area in which

[she] lives, or whether a specific job vacancy exists for [her], or whether

[she] would be hired if [she] applied for work

42 U.S.C. § 1382(a)(3)(B). The Commissioner uses a five-step process, set forth in 20

C.F.R. sections 404.1520 and 416.920, to evaluate disability insurance and SSI

disability claims.

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

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

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

significantly limits [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 meets or equals the criteria of an impairment listed in Appendix 1 of

[Commissioner] will consider [her] disabled without considering

vocational factors such as age, education, and work experience …

Assuming the claimant does not have a listed impairment, the fourth

inquiry is whether, despite the claimant’s severe impairment, [she] has the

residual functional capacity to perform [her] past work. Finally, if the

claimant is unable to perform [her] past work, the [Commissioner] then

determines whether there is other work which the claimant can perform.

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

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

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

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

B. Scope of Review

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

whether the correct legal standards were applied and whether substantial evidence

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

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

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

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

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

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

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

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

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

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

that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859 F.2d

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

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

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

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

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

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

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

ALJ cannot “pick and choose evidence in the record that supports his conclusions.”

Cruz v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09-

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

III. FACTS

Plaintiff was born on April 3, 1961 and was 58 years old at the time of the ALJ

hearing. (T. 41). She completed one year of college, but no other job or vocational

training, other than “self-employment.” (Id.) Plaintiff was married and lived in a home

with her husband and three cats. (Id.) Plaintiff testified that she drove thirty four miles

to the hearing, but she started to get severe pinching in her neck that radiated down her

left arm and radiated a burning sensation into her chest. (T. 42).

Plaintiff testified that, at the time of the hearing, she owned a retail store which

sold and repaired computers and cellular telephones. (T. 42-43, 44). Plaintiff testified

that she went down to the store ten to fifteen hours per week so that she could make

enough money to “pay the bills on the building,” but she no longer did any of the work

Plaintiff testified that the store was “going under,” and that she was not taking a

paycheck or making any money from the business.2 (T. 43).

Plaintiff also testified that she obtained her real estate license the year before the

hearing and was trying to sell some real estate, but she had trouble showing houses

because the driving bothered her.3 Plaintiff also attempted to work selling advertising

for a radio station, but stated that she was let go because she could not perform the

driving required to go from business to business in order to make sales.4 (T. 44). The

driving bothered her back. (Id.)

Plaintiff testified that her greatest limitation was sitting because it caused

constant pain in her neck. (T. 45). Plaintiff testified that she went to physical therapy

for her neck pain, and that the therapist put her in “traction,” so that the nerve in her

shoulder did not get “pinched.” (Id.) The pinched nerve caused her to lose the use of

her left arm, but cortisone shots helped somewhat. (T. 45-46). Plaintiff also testified

that she had trouble using both hands because of the arthritis in her thumbs. (Id.) At the

time of the hearing, she stated that her left side was worse, and that she had been

1 Plaintiff testified that she would be required to lift up to fifty pounds when she was more

active in the repair business. (T. 44).

2 Plaintiff testified that she had owned the business for approximately twenty years. (T. 43).

She stated that she obtained a grant to start a business out of her home “because of [her] disability,” but

four years later, “the village” told her she had to move the business out of her home or shut it down, so

she opened up the storefront. (Id.)

3 She testified that she would “occasionally” show a house. (T. 43).

4 Plaintiff worked in northern New York, and she stated that businesses were often located fifty

miles apart, causing her to drive long distances. (T. 44-45).

month, at which time, the pain returned, “shooting” up her left thumb and arm. (T. 47).

Plaintiff stated that she dropped “everything” because her hands were so arthritic. (Id.)

She had trouble with fine manipulation, such as putting on a necklace or buttoning her

granddaughter’s clothes. (Id.) Plaintiff testified that she also had carpal tunnel

syndrome (“CTS”) on the right side, and she needed surgery on her thumbs, but she had

to have surgery on her feet first.5 (Id.)

Plaintiff testified that she wore inserts in both shoes, and that she had to be very

careful lifting her left foot because the bone spurs caused her pain. (T. 48). She had

nerve damage in the second toe of her right foot, and if the toe “hit[] the ground,” the

pain [was] “horrible,” and she was unable to walk. (Id.) She needed to elevate her feet

every night, but she had a difficult time sitting in her recliner because the pain in her

low back radiated down her legs. (Id.) Plaintiff stated that the pain in her legs woke her

up every night.6 When she drove her car, her muscles tightened up so much she needed

to stop on the side of the road, get out of the car, and stretch her legs because she could

not “control the muscle from the knee down to the toes.” (Id.) Plaintiff stated that she

had been to the emergency room several times for “it.” (T. 49).

Plaintiff testified that she treats her back pain with heat, goes to physical therapy,

5 Plaintiff stated that she had “about two inches worth of bone spurs on the top of [her] left foot

that have to be removed first.” (T. 47). She testified that she had severe arthritis in both feet due to old

injuries, including a car accident 37 years ago, and a broken ankle in high school. (T. 47-48).

6 Later, plaintiff testified that the right leg pain generally woke her up once or twice per week,

but the week before the hearing, she woke up with pain every night. (T. 49). The pain in her back

“doesn’t ever go away.” (Id.)

seven years ago, she was thrown from the car, and “went down the road 50 yards on

[her] right side.” (Id.) Plaintiff testified that, since the accident, her hips never “stayed

in place,” and that she could walk only because the chiropractor “puts them back in

place.” (Id.) She tried injections for her lower back, but they caused more pain. (T. 49-

50).

Plaintiff also testified to bilateral shoulder pain. (T. 50). She had two surgeries

on her right shoulder and had recently torn a ligament in her left shoulder. (Id.)

Plaintiff testified that all of her impairments made it difficult for her to sleep at night.7

(Id.) She stated that, during one of her shoulder surgeries, the physicians “cut” her

biceps muscle, and that it had never been the same, and any lifting caused her terrible

pain. (T. 50-51). She testified that she got migraines “almost daily,” but then she stated

that she got them two or three times per week. (T. 51). Plaintiff stated that if she caught

the headache early enough, she could take Tylenol and sit for twenty minutes, but

otherwise, she was bedridden in a dark room for two hours. (T. 51).

Plaintiff testified that she had swelling everywhere and took pills to alleviate it.

(T. 52). She testified that she was better in the morning, but as the day wore on, the

swelling came back in her chest and in her stomach. (Id.) She stated that the stomach

swelling was due to ulcerative colitis and celiac disease. (Id.) Plaintiff also stated that

she would swell if she got cold because she was “allergic to the cold.” (Id.) Plaintiff

also testified that she was very sensitive to medication and had “side effects.” (Id.) She

7 Plaintiff later stated that she slept only four hours per night, and she was exhausted in the

morning. (T. 53).

and she could not take muscle relaxants because she “can’t function.” (Id.) Plaintiff

testified that she also had acid reflux, liver disease, and diabetes. (T. 52).

Plaintiff testified that she forces herself to get dressed in the morning. (T. 53).

She stated that the pain in her hands was so bad that she could not even lift a half-

gallon of milk, she could not sit for more than ten minutes without pain, and that she

could not stand for more than ten minutes before getting a headache and horrible pain

in her upper back and feet. (Id.) Plaintiff stated that she could walk approximately ten

to fifteen minutes, but then she got tired and got spasms in her legs. (T. 53-54).

Plaintiff testified that she did very little cooking, and that her husband did all the

household chores, such as laundry, grocery shopping, and outdoor maintenance. (T.

54). Plaintiff stated that she got up in the morning, took care of her cats, went down to

the store to get the mail, answered the telephone at the store, set up repair appointments

with customers,8 talked to customers, and then closed the store. (T. 55). After closing

the store, she went to physical therapy, the chiropractor, or to her other doctors’

appointments. (Id.) She went to see her son and her two-year-old granddaughter,9 and

spoke with her mother on the telephone. (Id.) Plaintiff testified that she occasionally

went to church, did not go to the movies, but was trying to go to concerts. (T. 56). She

stated that she saw “Cher” in Buffalo. (Id.) Plaintiff testified that using the computer

8 As stated above, plaintiff contracted with another individual, who actually performed the

repairs. (T. 43, 55, 56).

9 Plaintiff testified that she did not babysit for her granddaughter because she could not lift her.

(T. 56).

for her son the day before, and she was “paying for it.” (Id.)

The VE testified that plaintiff’s previous work included “communication sales,”

which is classified as “light” work, with an SVP of 6.10 (T. 59). The VE also identified

plaintiff’s previous work as a radio account manager, without the additional descriptive

details. (T. 58). The skills obtained in these occupations would be transferable to semi-

skilled work with minimal adjustment. (Id.) The ALJ then asked the VE to assume an

individual of plaintiff’s age, education, and prior work experience who could walk or

stand for six hours and sit for six hours out of an eight-hour work day; could

occasionally climb stairs, but never ropes, ladders, or scaffolds; could occasionally

stoop, kneel, crouch, and crawl; could frequently handle, finger, and feel; and could

occasionally reach overhead; but must avoid unprotected heights and hazardous moving

machinery. (Id.)

Based on this hypothetical question, the VE testified that plaintiff could return to

her former work, either in communication equipment sales or as an account manager.

(T. 59). The ALJ then asked the VE to assume an individual who could only lift and

carry ten pounds, but could perform all the other functions listed in the first

hypothetical. (T. 59-60). The VE testified that plaintiff could still perform the jobs of

ads clerk, order taker, and invoice control clerk. (T. 60). However, in a third

hypothetical, the ALJ asked whether plaintiff could still perform her past relevant work

10 SVP stands for Specific Vocational Preparation. https://www.onetonline.org/help/online/svp.

The SVP number correlates to the amount of time required for a typical worker to learn the techniques,

acquire the information, and develop the facility needed for average performance in a specific job

situation. Id. An occupation with an SVP of 6 is considered skilled work. Id.

individual could not perform either her previous “light” occupation, nor could she

perform the additional occupations that she discussed. (T. 60-61).

The ALJ’s final hypothetical asked the VE to assume the same individual, who

could occasionally lift ten pounds, but could not frequently lift and carry. (T. 61).

Further, the individual could walk or stand for six hours per day, but for no more than

ten minutes a time. She could never reach overhead, occasionally reach forward,

occasionally finger, but could never handle, push, or pull. (Id.) Finally, she could never

climb, balance, stoop, crouch, kneel, or crawl. (Id.) The VE testified that such an

individual could not perform any competitive employment. (Id.)

There is a substantial amount of medical evidence in the administrative record.

Rather than reciting the evidence at the outset, I will discuss the relevant materials in

my analysis of plaintiff’s claims.

IV. THE ALJ’S DECISION

At step one of the sequential evaluation, the ALJ found that plaintiff met her

insured status requirements through June 30, 2020, and that plaintiff did not perform

substantial gainful activity since her alleged onset date. (T. 12). At step two, the ALJ

found that plaintiff had the following severe impairments: disorder of the back;

degenerative joint disease of the knees, right shoulder, and both feet; osteoarthritis of

the thumbs; and obesity. (Id.)

The ALJ found that the plaintiff had the following non-severe impairments:

autoimmune disease, celiac disease, chronic hip dislocation, severe migraines, and

impairments did not cause more than a minimal functional limitation on plaintiff’s

ability to work; they were being adequately controlled with medication; they had not

persisted for a continuous period of twelve months, and/or they were resolved with

treatment. (T. 12-13). The ALJ also found that plaintiff’s fibromyalgia was not a

medically determinable impairment. (T. 13). The ALJ stated that, that notwithstanding

a history of diagnosis and treatment for fibromyalgia, the evidence did not show

“sufficient objective medical evidence in the form of either medical signs or laboratory

findings that would support such a diagnosis.” (Id.) Even though the ALJ found

various of plaintiff’s alleged impairments non-severe, he stated that he considered “all

of the [plaintiff’s] impairments and all of the records when assessing the [plaintiff’s

RFC] . . . .” (T. 15).

At step three, the ALJ found that plaintiff did not have an impairment or

combination of impairments that rose to Listing-level severity. (T. 15-16). In making

this determination, the ALJ considered Listings 1.02 (major dysfunction of a joint),

1.04 (disorders of the spine).11 (T. 15). At step four, the ALJ found that plaintiff had

the RFC to lift twenty pounds, occasionally and ten pounds frequently. (T. 16). He

found that plaintiff could walk or stand for six hours and sit for six hours out of an

eight-hour work day. (Id.) She could occasionally climb stairs, but never ropes,

ladders, or scaffolds. Plaintiff could occasionally stoop, kneel, crouch, and crawl. (Id.)

11 The court notes that, as of April 2021, the Social Security Administration has revised and

renumbered the Listings for Musculoskeletal Impairments. 20 C.F.R. Pt. 404, Subpt. P, App.1, § 1.00-

1.23. The previous Listings apply to this case, and there is no dispute regarding step three. Thus, the

court will not elaborate further on these revisions.

avoid unprotected heights and hazardous moving machinery. (Id.) The ALJ stated that

he considered the medical evidence, including opinion evidence, together with all of

plaintiff’s symptoms and the extent to which they were consistent with the medical and

other evidence. (T. 16-19). Based on his RFC finding, the ALJ determined that plaintiff

could perform her past relevant work as a sales account manager and as a

communication salesperson. (T. 20). Thus, the ALJ determined that plaintiff was not

disabled. (T. 20-21).

V. ISSUES IN CONTENTION

Plaintiff raises the following arguments in support of her position that the ALJ’s

decision is not supported by substantial evidence:

1. The ALJ failed to properly consider all the relevant evidence. (Pl.’s Br. at

8-13) (Dkt. No. 13).

2. The ALJ’s RFC determination was not supported by substantial evidence.

(Pl.’s Br. at 14-17).

Defendant argues that the ALJ’s decision was supported by substantial evidence, and

the complaint should be dismissed. (Def.’s Br. at 4-21) (Dkt. No. 17). For the

following reasons, this court agrees with defendant and will affirm the Commissioner’s

decision.

VI. Medically Determinable Impairment (Step Two)

A. Legal Standards

For purposes of the Act, a plaintiff’s disability must be caused by “medically

determinable physical or mental impairment[s].” 42 U.S.C. § 1382c(a)(3)(A). At step

“medically determinable” impairment is severe. Rhondalee T. v. Berryhill, No.

3:17–CV–1241 (CFH), 2019 WL 1100267, at *5 (N.D.N.Y. Mar. 8, 2019) (citing

Taylor v. Astrue, 32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012)). A severe impairment is

one that significantly limits the plaintiff’s physical and/or mental ability to do basic

work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c); see also 20 C.F.R. §§

404.1521(a), 416.921(a) (noting that an impairment is not severe at step two if it does

not significantly limit a claimant’s ability to do basic work activities).

B. Analysis

In this case, the ALJ found that plaintiff’s fibromyalgia was not “medically

determinable,” and thus never considered whether the impairment was “severe” for

purposes of the Act. Plaintiff argues that the ALJ erred in determining that her

fibromyalgia was not a medically determinable impairment. (Pl.’s Br. at 13). Although

plaintiff concedes that an individual’s statements alone are insufficient to establish a

medically determinable impairment, she argues that the ALJ erred in finding that

plaintiff’s fibromyalgia was based on “self-diagnosis.” (Id.)

Plaintiff’s argument is misplaced. The ALJ engaged in a lengthy discussion of

plaintiff’s fibromyalgia. (T. 13). He stated that, while the medical evidence of record

did “document a history of diagnosis and treatment for fibromyalgia, . . . the record

does not include sufficient objective medical evidence in the form of either medical

signs or laboratory findings that would support such a diagnosis.” (Id.) The ALJ did

not base his finding on the fact that plaintiff engaged in “self-diagnosis.” The ALJ was

determinable impairment.” (Id.)

The ALJ stated that the record contained no record of any “trigger point testing,”

supporting a fibromyalgia diagnosis. (Id.) Some of the medical records list a diagnosis

of fibromyalgia, but none of those records actually diagnose the impairment. The only

medical provider who assessed trigger points in his report was consultative physician,

Dr. Elke Lorensen, who stated that plaintiff had “six positive trigger points identified

for fibromyalgia.”12 (T. 13, 640). The ALJ then stated that SSR 12-2p13 describes

eleven trigger points, and while the ruling does not “require”14 all eleven positive

trigger points to establish a medically determinable impairment, “it does require

evidence that other disorder[s] that could cause the claimant’s symptoms were

excluded. (T. 13).

The ALJ stated that plaintiff had a long history of “various conditions that could

explain [her] symptoms, such as her degenerative disc disease, osteoarthritis, and an

autoimmune disease. (Id.) The ALJ also noted that most of the plaintiff’s medical

records, do not include fibromyalgia among her multiple diagnoses and past medical

12 Dr. Lorensen did list fibromyalgia as one of the plaintiff’s diagnoses. (T. 641).

13 SSR 12-2p, 2012 WL 3104869 (July 23, 2012) provides guidelines for evaluating a diagnosis

of fibromyalgia.

14 Under SSR 12-2p, SSA determines whether fibromyalgia is a medically determinable

impairment by using either the 1990 or the 2010 criteria established by the American College of

Rheumatology. 2012 WL 3104869, at *2. The 1990 criteria require evidence of 1) a history of

widespread pain; 2) at least 11 positive tender points on physical examination; and 3) evidence that

other disorders that could cause the symptoms or signs were excluded. Id. at *2-3. The 2010 criteria are

similar, except that, instead of tender points, the individual may show “repeated manifestations of six

or more fibromyalgia symptoms, signs, or co-occurring conditions,” and evidence that other disorders

that could cause the symptoms or signs were excluded. Id. at *3.

her treating provider, PA Tontarski.16 (See e.g.T. 907-908). One of PA Tontarski’s

notes stated that he was referring plaintiff to a rheumatologist for evaluation of “fibro”

and arthritis. (T. 1076). However, as noted by defendant, there is no record of such a

referral or subsequent diagnosis of fibromyalgia by a rheumatologist.

On March 28, 2017, Dr. Ivan Montalvo from the Samaritan Pain Center

examined plaintiff, finding “restriction of movement” and “trigger points,” but

diagnosed only “myalgia.” (T. 932). Myalgia is a generic term for “pain in one or more

muscles. https://www.merriam-webster.com/dictionary/myalgia.

This case is distinguishable from Brandy L. v. Kijakasi, No. 3:20-CV-1127

(DJS), 2022 WL 675709, at *4 (N.D.N.Y. Mar. 7, 2022). In Brandy L., Magistrate

Judge Stewart reversed the Commissioner’s decision after the ALJ found that plaintiff’s

fibromyalgia was not a medically determinable impairment, but failed to properly

consider that the impairment was documented several times in the record, and failed to

even mention that plaintiff’s medical providers performed tests to rule out other

disorders. Id. In remanding the case for further review, Judge Stewart stated that

[i]t may be that substantial evidence would support a

well-reasoned conclusion that Plaintiff failed to establish the

exclusion of other causes for her symptoms. The Court

15 In March of 2019, Dr. Latif included fibromyalgia in his list of “Assessments,” but he never

mentions fibromyalgia or positive trigger points in his examination, and he does not indicate that it is

his diagnosis. (T. 858-59). As stated above, the ALJ notes that there are multiple references to

fibromyalgia in the record. (T. 13).

16 Even if PA Tontarski had included fibromyalgia in his assessment of plaintiff’s impairments,

he was not an acceptable medical source at the time. The diagnosis must be made by an acceptable

medical source. 2012 WL 3104869, at *2.

evidence of exclusion, and that remand is required for that

complete review of whether Plaintiff has carried her burden to

establish fibromyalgia was a severe impairment.

Id. (citing Dickinson v. Berryhill, No. 1:16-CV-185, 2017 WL 2492614, at *4 (N.D.

Ind. June 9, 2017) (“Plaintiff has a dual burden of production and persuasion at step

two.”)).

In this case, the ALJ engaged in a lengthy analysis, which was properly based on

the medical evidence. At best, there is conflicting evidence in the record regarding a

diagnosis of fibromyalgia. Conflicts in the evidence are for the ALJ to resolve. Veino v.

Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). Thus, the ALJ’s finding that plaintiff’s

fibromyalgia was not a medically determinable impairment was supported by

substantial evidence.17

VII. RFC/Weight of the Evidence

A. Legal Standards

1. RFC

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

Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work

17 The court notes that Magistrate Judge Stewart also found that the ALJ’s error at step two was

not harmless. 2022 WL 675709, at *4. Other cases have held that harmless error does not apply at step

two if the ALJ improperly determines whether an impairment is “medically determinable,” because

unlike a non-severe impairment which is considered during later steps of the sequential analysis, an

impairment which is not medically determinable is not later considered when determining RFC. See

e.g. Dunworth v. Comm’r of Soc. Sec., No. 19-CV-2 (JLS), 2020 WL 4432570, at *4 (W.D.N.Y. July

30, 2020) (the step two harmless error doctrine applies only to ALJ decisions regarding whether an

impairment is severe, and not to decisions regarding whether the impairment is medically

determinable). Because, I have found that the ALJ’s step two determination is supported by substantial

evidence, I do not need to discuss harmless error, nor do I need to determine whether I would agree

with the Dunworth opinion.

and continuing basis” means eight hours a day, for five days a week, or an equivalent

work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2

(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)

(quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v. Berryhill, No. 5:17-CV-

00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018); Tankisi v.

Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.

Supp. 3d 349, 361 (N.D.N.Y. 2016).

In rendering an RFC determination, the ALJ must consider objective medical

facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s

subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R.

§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)

(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.

Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL 587459, at *8 (N.D.N.Y. Feb 13, 2019);

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An ALJ must specify the functions

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

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

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

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

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

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

narrative discussion, describing how the evidence supports the ALJ’s conclusions,

3:17-CV-01266 (TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing

SSR 96-8p, 1996 WL 374184, at *7).

2. Weight of the Evidence

In making a disability determination, the ALJ weighs all the evidence of record

and carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL

374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues

are not “medical issues,” but are “administrative findings.” The responsibility for

determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL

374183, at *2. These issues include whether the plaintiff’s impairments meet or equal a

listed impairment; the plaintiff’s RFC; how the vocational factors apply; and whether

the plaintiff is “disabled” under the Act. Id.

In evaluating medical opinions on issues that are reserved to the Commissioner,

the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The

ALJ must clearly state the legal rules that he applies and the weight that he or she

accords the evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL

3776382, at *2 (S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324,

2012 WL 3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).

The regulations regarding the evaluation of medical evidence were amended for

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

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

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

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

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

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

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

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

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

Under the regulations applicable to individuals filing before March 27, 2017, the

ALJ’s analysis was subject to the “treating physician rule.” “Although the treating

physician rule generally requires deference to the medical opinion of a claimant’s

treating physician, . . . the opinion of the treating physician is not afforded controlling

weight where . . . the treating physician issued opinions that are not consistent with

other substantial evidence in the record . . . .” Halloran v. Barnhart, 362 F.3d 28, 32

(2d Cir. 2004); Veino v. Barnhart, 312 F.3d at 588; 20 C.F.R. §§ 404.1527(d)(2),

416.927(d)(2).

If an ALJ decides not to give the treating source’s records controlling weight,

then he must explicitly consider the four Burgess factors: “(1) the frequen[cy], length,

nature, and extent of treatment; (2) the amount of medical evidence supporting the

opinion; (3) the consistency of the opinion with the remaining medical evidence; and

(4) whether the physician is a specialist.” Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d

Cir. 2019) (quoting Burgess v. Astrue, 537 F. 3d 117, 120 (2d Cir. 2008)). “[T]he ALJ

must ‘give good reasons in [its] notice of determination or decision for the weight [it

362 F.3d at 32). Should an ALJ assign less than controlling weight to a treating

physician’s opinion and fail to consider the above-mentioned factors, this is a

procedural error. Id. It is impossible to conclude that the error is harmless unless a

“searching review of the record . . . assures us that the substance of the treating

physician rule was not traversed.” Id.

For claims filed prior to March 27, 2017, the Social Security Administration

categorized nurse practitioners and physicians’ assistants as “other medical sources,”

whose opinion may be considered as to the severity of a claimant’s impairment and

ability to work, but who are not necessarily entitled to the weight afforded to a treating

physician. 20 C.F.R. §§ 416.913(d)(1), 404.1513(d)(1).18 The regulations direct an ALJ

to use various factors in evaluating the opinions of these “other medical sources,”

including frequency of treatment, consistency with other evidence, degree of supporting

evidence, thoroughness of explanation, and whether the source has an area of expertise.

20 C.F.R. §§ 404.1527(c) and (f), 416.927(c) and (f).19 The Second Circuit has stated

18 The current version of these regulations (applicable to cases filed after March 27, 2017) no

longer differentiates between “acceptable” and “other” medical sources. The sections are entitled

“Categories of Evidence,” and define the differences between objective medical evidence, medical

opinion, “other medical evidence,” and evidence from non-medical sources. The evaluation of opinion

evidence for claims filed prior to March 27, 2017 is now located at 20 C.F.R. § 404.1527 and 416.927

and does refer to acceptable versus other sources.

19 The new regulations now contain separate sections for claims filed prior to, and after, March

27, 2017. As stated above, sections 404.1527 and 416.927 contain the regulations for cases filed prior

to March 27, 2017. In sections 404.1527(f)(1) and 416.927(f)(1), the regulations refer to

404.1527(c)(1)-(c)(6) and 416.927(c)(1)-(c)(6) which contain the specific factors by which the

Commissioner evaluates “acceptable medical sources,” but states that “not every factor for weighing

opinion evidence will apply in every case because the evaluation of an opinion from a medical source

who is not an acceptable medical source or from a nonmedical source depends on the particular facts in

each case.” Id.

source’s] opinion based on all the evidence before him.” House v. Comm’r of Soc. Sec.,

32 F. Supp. 3d 138, 151 (N.D.N.Y. 2012) (quoting Diaz v. Shalala, 59 F. 3d 307,

313–14 (2d Cir. 1995)) (some alterations in original).

3. Credibility/Consistency

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

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

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

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

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

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

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

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

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

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

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

81 FR at 14167. Instead, symptom evaluation tracks the language of the regulations.20

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

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

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

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

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

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

remain consistent with the terms as used by the Commissioner.

the ALJ must consider “‘the extent to which [the claimant’s] alleged functional

limitations and restrictions due to pain or other symptoms can reasonably be accepted

as consistent with the [objective medical evidence] and other evidence to decide how

[the claimant’s] symptoms affect [her] ability to work.’” Barry v. Colvin, 606 F. App’x

621, 623 (2d Cir. 2015) (citing inter alia 20 C.F.R. § 404.1529(a); Genier v. Astrue, 606

F.3d at 49) (alterations in original).21

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

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

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

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

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

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

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

other treatment received to relieve symptoms; (6) any measures taken by the claimant to

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

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

416.929(c)(3).

B. Analysis

Plaintiff frequently saw Physician’s Assistant (“PA”) Frederick Tontarski, from

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

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

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

Medical Source Statement (“MSS”), dated March 20, 2019. (T. 860-65). In this check-

box form, PA Tontarski opined that plaintiff could only occasionally lift and/or carry up

to ten pounds, could only sit for ten minutes at a time for a total of two hours in an

eight-hour work day, could stand for ten minutes for a total of three hours in a work

day, and could walk for twenty minutes for a total of four hours in a work day. (T. 861).

He also opined that plaintiff could never reach overhead or handle with either hand, and

could occasionally finger with the right hand, but never finger with the left hand. (Id.)

She could occasionally reach in other directions and occasionally push and pull with

both hands. (Id.) PA Tontarski opined that plaintiff could continuously feel with both

hands. (Id.)

The MSS further stated that plaintiff could occasionally climb stairs and ramps,

but could never climb ladders or scaffolds, balance, kneel, stoop, crouch, or crawl. (T.

863). She could frequently operate a motor vehicle, but could only occasionally be

exposed to moving mechanical parts, humidity and wetness, dust, odors, and fumes,

vibrations, and noise. She could never be exposed to unprotected heights, extreme cold

or extreme heat. (Id.) In a section listing “activities,” PA Tontarski checked boxes

indicating that plaintiff could shop, travel without assistance, ambulate without using a

wheelchair, two canes, or two crutches, could walk a block at a reasonable pace on

uneven surfaces, climb a few steps, prepare a simple meal, feed herself, care for her

personal hygiene, and “sort, handle, or use paper/files.” (T. 865). There were no

narratives in the form, explaining how PA Tontarski arrived at his opinion,

or clinical findings which supported his opinion. (T. 860-865).

The only written “explanation” was a single word: “MRI,” and it appeared under

a question which asked whether any other “work-related activities” were affected by the

plaintiff’s impairments, and what clinical findings supported the stated limitations. (T.

865). PA Tontarski did not list any additional work-related activities, but simply wrote

MRI in the space provided. (Id.)

The ALJ gave this MSS no weight, finding that, while PA Tontarski had a

treating relationship with plaintiff, his “opinions” were “not well supported by the

medical evidence of record,” including his own treatment notes. (T. 19). The ALJ

found that PA Tontarski’s treatment notes did not document any significant deficits or

clinical findings reasonably consistent with the conclusions in the MSS. (Id.) (citing

Exs. E45F and E54F, T. 904-19, 1072-76). The ALJ also found that the restrictions

listed in PA Tontarski’s MSS were inconsistent with other physical examinations

throughout the record, including the consultative examination conducted by Dr. Elke

Lorensen, M.D. (Id.) (T. 638-42).

The ALJ specifically discussed PA Tontarski’s opinion that the plaintiff could

never reach over head or handle with either extremity, stating that no physical

examinations in the record, including Dr. Lorensen’s had documented any serious

limitations in range of motion or loss of dexterity in the upper extremities. (T. 19). The

ALJ also commented that PA Tontarski’s MSS did not provide any explanation, or

reference medical signs or findings of record, to support his conclusions.

regulations applicable in plaintiff’s case, a physician’s assistant was considered under

the category of “other medical sources.” These other medical sources were not afforded

the controlling weight of a treating physician, but their opinions were still required to

be properly evaluated by considering the frequency of treatment, consistency with other

evidence, degree of supporting evidence, thoroughness of explanation, and whether the

source has an area of expertise–the same factors as those used for acceptable medical

sources. Michael S. v. Kijakazi, No. 20-CV-6340, 2021 WL 2917694, at *3 (W.D.N.Y.

July 12, 2021) (citing 20 C.F.R. § 416.927(c); Pike v. Colvin, No. 14-CV-159, 2015

U.S. Dist. LEXIS 35143 at *11, 2015 WL 1280484, at *5, 8 (W.D.N.Y. Mar. 20, 2015)

(quotation and alterations omitted)). “The ALJ ‘does not have to explicitly walk

through these factors,’ so long as the court can conclude that the ALJ ‘applied the

substance’ of the listed factors and provided ‘good reasons’ for the weight given to the

medical source’s opinion.” Pike, 2015 WL 1280484, at *5. (quoting Hall v. Colvin, 37

F. Supp. 2d 614, 625 (W.D.N.Y. 2014)).

In this case, the ALJ gave specific reasons for giving PA Tontarski’s restrictive

MSS no weight. The ALJ began his analysis by noting that PA Tontarski had a treating

relationship with the plaintiff. (T. 19). In addition, the ALJ did not reject PA

Tontarski’s MSS solely based on the fact that he was not an acceptable medical source.

In fact, the ALJ did not even mention that fact. Instead, the ALJ considered the

consistency, supportability, and thoroughness of PA Tontarski’s explanation, finding

that the “record as a whole fails to support the extreme limitations.” (Id.)

plaintiff had “no gross limitations to sitting, standing, walking, or handling small

objects with the hands.” (T. 641). He found that plaintiff had mild to moderate

limitations in bending, reaching, lifting, and turning the head. (Id.) The ALJ also relied

upon the May 26, 2017 opinion submitted by Dr. I. Souk, M.D., a non-examining state

agency medical consultant, who reviewed the record, including Dr. Lorensen’s opinion,

and found that plaintiff could perform a full range of light work with the following

additional limitations: she could only occasionally balance, stoop, kneel, crouch, crawl,

and climb ramps, ropes, ladders, or scaffolds. (T. 73). Dr. Souk found that plaintiff had

no manipulative limitations. (Id.) Neither of these consultative opinions found the

extreme limitations stated by PA Tontarski. The ALJ is entitled to rely upon the

opinions of both examining and non-examining State agency medical consultants, since

such consultants are deemed to be qualified experts in the field of social security

disability. See 20 C.F.R. §§ 404.1512(b)(6), 404.1513(c), 404.1527(e). See also

Christopher R. v. Comm’r of Soc. Sec., No. 1:20- CV-1082 (ATB), 2022 WL 675708,

at *6 (N.D.N.Y. Mar. 2, 2022) (the regulations permit the opinions of non-examining

sources to override the opinions of treating sources provided they are supported by the

evidence in the record); Baszto v. Astrue, 700 F. Supp. 2d 242, 249 (N.D.N.Y. 2010)

(“[A]n ALJ is entitled to rely upon the opinions of both examining and non-examining

State agency medical consultants, since such consultants are deemed to be qualified

experts in the field of social security disability.”).

In addition to the opinions of the consultative physicians, the ALJ considered PA

MSS, PA Tontarski stated that plaintiff could “never” reach overhead or handle with

either hand, and could occasionally finger with the right hand, but never finger with the

left hand. However, on May 8, 2018, plaintiff went to see PA Tontarski for knee pain

and denied symptoms “other than stated above.” (T. 906). His examination showed that

plaintiff’s neck was grossly within normal limits, strength was 5/5, and her range of

motion was “physiologic.”22 (T. 907). Her spine was within normal limits, with a

strength of 5/5. Her upper and lower extremities were listed as normal, with no

instability, and with strength 5/5 bilaterally. There was no instability, no tenderness,

and she had full range of motion. (Id.) Upper extremity strength of 5/5 is inconsistent

with the above stated upper body restrictions to handling, fingering, and reaching.

On June 18, 2018, just after her knee surgery, plaintiff went to PA Tontarski,

complaining of pain in her upper back. (T. 909-910). Physical examinations showed

that plaintiff’s neck was grossly within normal limits, was supple with a normal range

of motion, and had 5/5 strength. (T. 911). Her spine did show “some limited active

flexion with pain,” but she had normal posture and no obvious instability. (Id.) Both

her upper and lower extremities were “normal to inspection,” there was no tenderness

bilaterally, no instability, and her strength was 5/5 bilaterally. (T. 911-12). She had

normal muscle tone and bulk. (Id.)

On July 13, 2018, plaintiff’s physical examination was almost identical to her

22 Physiologic[al] is another word for “normal.” https://www.merriam-webster.com/dictionary/

physiological. Both physiologic and physiological are used interchangeably. https://www.the

freedictionary.com/physiologic.

916-17). In addition, PA Tontarski examined plaintiff’s feet because of her diabetes,

but found that her feet were normal to inspection and palpation, and her sensation was

grossly intact to position, vibration, and pinprick. (T. 917).

On March 20, 2019, PA Tontarski saw plaintiff for “review of disability papers.”

(T. 1075). This was the same day that he completed the check-box MSS. Under the

heading “Subjective,” PA Tontarski stated that the pain in her thumb interfered with her

ability to grasp and manipulate items, and that she had pain in her feet, low back, and

neck which did not allow her to stand or sit for “prolonged periods.” (Id.) However,

unlike his previous reports, this report did not contain any reference to an objective

contemporaneous examination of her back or her extremities. (Id.) With respect to any

body parts relevant to her claim, the report stated only that plaintiff’s neck had “painful

movement.” (Id.) His recommendation was for plaintiff to continue her medications

and remain active. (T. 1076). He encouraged her to exercise. (Id.)

The ALJ’s determination that the above findings were not consistent with PA

Tontarski’s check box form is supported by substantial evidence. The ALJ also noted

that PA Tontarski did not provide an explanation for his asserted limitations in the

space provided on the form. Plaintiff argues that PA Tontarski’s notes provided the

explanation, but as shown above, his contemporaneous notes were inconsistent with the

conclusions expressed in the check-box form, and he did not explain this discrepancy or

how his conclusions followed from his examinations.

The ALJ also found that the record as a whole did not support the extreme

throughout the record, including Dr. Lornensen, have not documented any serious

limitations in range of motion or loss of dexterity in the upper extremities.” (T. 19).

Earlier in his analysis, the ALJ stated that “while exams frequently show some

subjective tenderness or painful range of motion in the spine, they also consistently

indicate that she is able to walk without deficit, and she has good strength, range of

motion, sensation, and reflexes in all her extremities.” (T. 18).

The ALJ cited various records, throughout the period in question,23 which

supported his findings. He cited a September 19, 2017 report by Dr. Thomas W.

Kneifel, M.D., to whom plaintiff was referred for her hip pain by one of her primary

care providers, Dr. Tahir Anwar, D.O. (T. 18, 673-80). After reviewing plaintiff’s past

medical history, Dr. Anwar stated that, subjectively, plaintiff had “pain all the time.”

(T. 673). However, he also stated that “[s]he is able to walk unlimited distances.” (Id.)

Objectively, Dr. Anwar’s examination resulted in normal findings from plaintiff’s feet

to her back and both hips, with normal range of motion and 5/5 strength throughout. (T.

674-75).

The ALJ cited a March 22, 2018 report, written by PA Kathryn E. Doremus from

23 The ALJ considered that plaintiff recovered well from two shoulder surgeries which occurred

prior to her onset date. (T. 17) (citing T. 498 - plaintiff’s pain was controlled without medication after

the second surgery and 499-500 - patient doing extremely well). The ALJ also considered that plaintiff

had knee surgery after her onset date. (T. 17). The ALJ cited a June 6, 2018 surgery to repair a torn

meniscus in her right knee. (T. 17) (citing T. 759, 787-88). The ALJ stated that ten days after the

surgery, plaintiff was able to ambulate without difficulty and by June 21, 2018, her knee looked

excellent, there was no swelling, and she had full range of motion. (T. 797 - knee looks excellent with

good range of motion, and no swelling at all, 801 - July 11, 2018 - full active ROM right knee). The

ALJ even discussed the fact that plaintiff developed some rash after the surgery, due to an apparent

latex allergy, but there were no other significant complications. (T. 17).

72). Plaintiff stated that her right knee was painful, and that she had some “subjective

instability.” (T. 770). In her assessment, PA Doremus stated that the knee exam was

“positive,” and she stated that on a previous examination by another provider, plaintiff

was diagnosed with a Baker’s Cyst.26 However, her examination notes show that, while

plaintiff had tenderness in the posterior knee into the hamstring, she walked with a

nonantalgic gait, and she had “full active range of motion” with intact distal

neurovascular status and “5/5” strength. (Id.) PA Doremus found no instability with

varus or valgus stress.27 (Id.) The ALJ also cited examinations from February 28, 2017

(T. 1084-86); April 4, 2018 (T. 777); April 23, 2018 (T. 897-900); May 16, 2018 (T.

904-908); August 22, 2018 (T. 823-24); and March 8, 2019 (T. 858-59).

The ALJ did not exclude reports in which plaintiff exhibited symptoms of pain

and restricted motion, and the ALJ considered positive MRI and X-ray findings28

24 The report was also signed by Steven B. Fish, M.D. (T. 772).

25 As stated above in footnote 23, plaintiff had knee surgery in June of 2018, but the ALJ

considered that she recovered well from the surgery.

26 A Baker's cyst is a fluid-filled cyst that causes a bulge and a feeling of tightness behind the

knee. https://www.mayoclinic.org/diseases-conditions/bakers-cyst/symptoms-causes/syc-20369950. In

some cases there is no pain. However, it may be painful when a person fully flexes or extends the knee

or when the individual is active. Id.

27 Varus and valgus stress tests result in the evaluation of the stability of the medial and lateral

collateral ligaments of the knee (MCL) (LCL) and are performed by placing force on the joint.

https://medical-dictionary.thefreedictionary.com/varus+stress+test, https://medical-dictionary.

thefreedictionary.com/valgus+stress+test.

28 The ALJ cited EMG reports showing mild right ulnar nerve compression and mild to

moderate median sensory nerve compression across her right wrist in addition to L5 radiculopathy in

her spine. (T. 18) (citing T. 524, 767 (August 2018 EMG)).

example, the February 2017 report, cited above in the ALJ’s decision, was authored by

PA Heather R. Cayward from Upstate Orthopedics. The report showed that plaintiff

had full range of motion in her shoulders, elbows, wrists, hips, knees, and ankles,

notwithstanding a diagnosis of cervical degenerative disc disease; cervical

radiculopathy; thoracic degenerative disc disease; and thoracic radiculopathy, with

some tenderness to palpation of the upper trapesius muscle and limited flexion and

rotation of the cervical spine. (T. 1084). In addition, PA Cayward performed a motor

examination which showed full 5/5 strength in plaintiff’s deltoid, biceps, triceps, wrist

extensor, wrist flexor, and grip. (T. 1085).

The ALJ considered that plaintiff received regular injections for the arthritis in

her thumbs. (T. 17). On April 25, 2018, PA Doremus reported that, although plaintiff

had tenderness to palpation over the carpometacarpal29 joints, she had “full active range

of motion of the hands and fingers,” with no obvious deformity, and no erythema30 or

warmth over the area. (T. 780).

The August 22, 2018 report cited above was written by neurologist Abdul Latif,

M.D., who stated that plaintiff complained of weakness in her legs after her knee

surgery. (T. 823-24). During the examination, plaintiff told Dr. Latif that she had neck

pain, but denied weakness in her arms and numbness in her hands. (T. 823). Upon

29 The carpometacarpal (CMC) of the thumb is a saddle joint, located at the very base of the

thumb, that permits a wide range of motion. https://pubmed.ncbi.nlm.nih.gov/12918864/

30 Erythema is a superficial abnormal redness of the skin. https://www.merriam-webster.com/

dictionary/erythema.

normal muscle tone, and no focal motor weakness in the upper or lower extremities.

(Id.) Plaintiff’s gait was normal. (T. 824).

Plaintiff saw Dr. Latif again on March 8, 2019. (T. 858). Plaintiff complained of

neck pain. (Id.) She complained of pain radiating into her left shoulder muscles and

arm. (Id.) She told Dr. Latif that her left hand occasionally became numb, but there was

no numbness or weakness in her right upper extremity. (Id.) She stated that she

continued to have back pain, and that she had weakness in both legs, “but [Dr. Latif

noted that], despite that she is able to ambulate.” (Id.) Objectively, Dr. Latif found that

plaintiff had moderate tenderness in her cervical spine and lumbar areas, however,

plaintiff’s motor examination showed no focal weakness in the upper or lower

extremities. (Id.) Her gait was normal. (T. 858).

On May 1, 2019, plaintiff saw Dr. Veneenenaam, M.D. for her left shoulder and

her thumbs. (T. 1190-92). Plaintiff cancelled the surgery she had scheduled for her

thumbs because she was getting relief from using CBD oil. (T. 1190). Plaintiff

described pain in her left shoulder, radiating down her arm and which hurt with

“overhead use,” “heavy lifting,” or sitting in one position with her shoulder hanging

down (Id.) Examination of plaintiff’s thumbs showed a positive “grind test and

localized tenderness,” but she had intact reflexes and could “flex and extend her fingers

well.” (T. 1191). She had pain with resisted abduction of the shoulder and some

tenderness at the AC joint of her left shoulder, but “her motion is fairly well preserved

31 On the next page, Dr. Latif found “moderate” tenderness in the cervical spine, shoulder

muscles and lumbar area. (T. 824).

Tontarski’s MSS was not consistent with, or supported by, the record, and the ALJ’s

decision to give it no weight was supported by substantial evidence.

Plaintiff argues that the ALJ should not have given greater weight to the Dr.

Lorensen and Dr. Seok because they issued their reports in 2017 and did not see the

medical evidence that became part of the record after that date. (Pl.’s Br. at 12) (citing

Exhibits 15F-58F). It is true that medical source opinions that are “‘conclusory, stale,

and based on an incomplete medical record’” may not be substantial evidence to

support an ALJ finding. Paddington v. Comm’r of Soc. Sec. No. 5:16-CV- 670 (WBC),

2017 WL 3575682, at *5 (W.D.N.Y. Aug. 17, 2017) (quoting Griffith v. Astrue, No.

08-CV-6004, 2009 WL 909630, at *9 n. 9 (W.D.N.Y. March 31, 2009)). However, this

does not apply where such opinions are supported by substantially similar findings in

treatment notes and other opinions in the record. Id. (citing Camille v. Colvin, 104 F.

Supp. 3d 329, 343-344, (W.D.N.Y. May 19, 2015), aff’d, 652 F. App’x 25 (2d Cir.

2016)). See also Lisa R. v. Comm’r of Soc. Sec., No. 20-CV-522 (A), 2021 WL

3052032, at *9 (W.D.N.Y. July 20, 2021) (“a medical opinion is not stale simply based

on its age. A more dated opinion may constitute substantial evidence if it is consistent

with the record as a whole.”).

In this case, it is undisputed that the opinions of both consultative physicians

were issued before many of the other medical reports. However, both consultative

physicians were aware of plaintiff’s cervical, lumbar, and thumb pain. (T. 74, 638-40).

Dr. Lorensen’s report contained the handwritten notation next to “Labs and Other

Dr. Lorensen’s opinion and other medical records. (T. 65-66). In addition to reviewing

the relevant imaging and other diagnostic studies, Dr. Seok stated that he took into

consideration plaintiff’s right shoulder rotator cuff tear; osteoarthritis in both thumbs;

disc herniations and other degenerative changes in the cervical, thoracic, and lumbar

spine; obesity; and nerve compression in the right wrist. (T. 74). Dr. Seok also

considered plaintiff’s allegations of limited movement, dexterity, and strength. (T. 72).

As stated above, the subsequent medical reports were consistent with those of the

consultative physicians and consistent with the RFC as established by the ALJ. While

there were additional X-Rays, MRI tests, and examinations post-dating the consultative

physician’s reports, the ALJ considered them in the context of the entire record. Thus,

the ALJ did not err in the weight he gave the consultative reports because their findings

were consistent with the subsequent medical evidence, and the ALJ considered the

consultative reports in context of the entire record.

Plaintiff then argues that the ALJ committed error when he assessed greater

limitations than either Dr. Seok or Dr. Lorensen, “due to the imaging of the cervical

spine and the EMG of the upper extremities and her testimony regarding difficulty

using her hands.” (Pl.’s Br. at 11) (citing T. 19). Plaintiff claims that by adding

restrictions to the RFC based upon subsequent medical evidence, the ALJ asserted an

opinion “beyond his expertise.” (Id.) However, an ALJ’s conclusion need not perfectly

correspond with any of the opinions of medical sources cited in his decision as long as

he weighed all of the evidence and made an RFC finding that was consistent with the

finding that is more favorable to the plaintiff than the record may support is not, in

itself, cause for remand. See Tammy Lynn B. v. Comm’r of Soc. Sec., 382 F. Supp. 3d

184, 195 (N.D.N.Y. 2019) (“There is nothing improper about an ALJ considering

medical opinion evidence that assesses, say, few or no exertional limitations and then

relying in part on the combined force of other record evidence, such as a claimant’s

subjective testimony, to nevertheless choose to assign certain limitations that result in a

more restrictive RFC finding.”) (emphasis in original) (citing Matta v. Astrue, 508 F.

App’x at 56).

This is exactly what the ALJ did in the instant case. The ALJ did not interpret

any raw medical data. The ALJ began by citing Dr. Seok, who considered the relevant

diagnostic studies, and found that no manipulative limitations were warranted. (T.

73-74). The ALJ then adopted the additional limitations, based in part on plaintiff’s

testimony regarding her limitations. (T. 19) (T. 46-47, 53, 56)). As discussed above,

notwithstanding plaintiff’s frequent complaints of weakness, contemporaneous physical

examinations did not show that plaintiff’s manual dexterity was limited or that

plaintiff’s upper or lower extremity strength was so limited. However, there were some

positive findings, and plaintiff told the doctors that she had trouble reaching overhead.

The ALJ chose to limit the plaintiff to “occasional” overhead reaching and only

“frequently” handling, feeling, or fingering. (T. 16). The ALJ did not commit error in

doing so.

While plaintiff asserted more severe restrictions, the ALJ found that plaintiff’s

disabling medical impairments.” (T. 18). Plaintiff argues that the ALJ improperly

considered plaintiff’s daily activities, did not consider their durational limits, and did

not specify what activities were inconsistent with her claimed limitations. (Pl.’s Br. at

12-13). The ALJ may properly consider plaintiff’s daily activities and may consider her

testimony as well as statements that she made to physicians, or statements she made at

previous administrative steps in her application. SSR 16-3p, 2017 WL 5180304, at *8

(“[W]e will compare statements an individual makes in connection with the individual’s

claim for disability benefits with any existing statements the individual made under

other circumstances.”). See also Del Carmen Fernandez v. Berryhill, No. 18-CV-326,

2019 WL 667743, at *9 (ALJ must carefully consider multiple factors, including daily

activities).

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

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

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

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

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

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

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

76 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)).

In this case, the ALJ found that plaintiff’s impairments could reasonably cause

pain and other symptoms, but not to the extent alleged by plaintiff. The ALJ stated that

inconsistent with her testimony that she could not perform many activities and that her

husband had to help her to complete them. The ALJ also recognized that the “the

claimant’s ability to engage in these ordinary daily activities is not itself conclusive

proof that the claimant is also able to engage in substantial gainful activity . . . .” (T.

18). Instead, “her capacity to perform these tasks independently is a strong indication

that the claimant retains the capacity to perform the requisite physical and mental tasks

that are part of everyday basic work activity,” and this finding was supported by the

medical signs and findings discussed elsewhere in the ALJ’s opinion. (T. 18-19).

Plaintiff testified that her husband did all the cooking, cleaning, shopping, and

yard work. (T. 54). However, she told Dr. Lorensen that she performed these

household duties regularly, albeit not every day. (T. 639). She stated that, while doing

chores, she had to work slowly and rest, but did not mention that she needed her

husband’s help to complete these tasks. (T. 646-47). Plaintiff stated that she spent her

days “doing chores, resting, keeping appointments, and using a computer.32 (T. 647).

On September 26, 2018, plaintiff told Dr. Latif that she fell backwards while “mowing

her lawn.” (T. 825). This activity is inconsistent with plaintiff’s testimony that her

husband did all of the outside maintenance and her claims (and PA Tontarski’s

32 While plaintiff testified to severe restrictions at her hearing, she also stated that she spent ten

to fifteen hours per week at her computer store, making appointments and talking to customers, after

which she would go to her medical appointments. (T. 55). She also testified that her hands were

bothering her because she had done “a lot of keyboard inputting” for her son the day before the hearing,

and she was “paying for it.” (T. 56).

Although plaintiff consistently complained of pain to her chiropractor, Donell

Wright, DO, on October 30, 2017,34 she told him that her pain was worse because “she

did clean a house yesterday and was up and down a step ladder a few times and bending

a lot.” (T. 1136) (emphasis added). On July 23, 2018, she told Dr. Donell that she was

feeling worse because she had “cleaned a house out” the day before, and she engaged in

“a lot of repetitive motion.” (T. 1153). On August 20, 2018, while claiming a variety of

functional limitations, she reported pain in her neck, “after a lot of cleaning over the

weekend.” (T. 1155). On November 12, 2018, plaintiff told Dr. Donell that her hip

“went out” after she took care of her granddaughter for a week and lifted her. (T. 1161).

On February 11, 2019, plaintiff told Dr. Donell that she had been helping to stage a

home and moving furniture in the dark. (T. 1167) (emphasis added). She was using a

flashlight and dropped it on her big toe. (Id.) On March 25, 2019, plaintiff told Dr.

Donell that her low back pain was worse from “cleaning house all day yesterday.” (T.

1169) (emphasis added). On April 29, 2019, plaintiff told Dr. Donell that she had been

“cleaning all day” the previous day, and “after all the bending over and kneeling

down,” she had a hard time sleeping due to low back pain. (T. 1171).

Plaintiff argues that these activities do not show that plaintiff is able to work

33 During his examination, Dr. Latif found that plaintiff had no focal motor weakness in her

upper or lower extremities, notwithstanding moderate tenderness in her cervical spine, shoulder

muscles, and lumbar area. (T. 825). Plaintiff’s gait was “normal.” (Id.)

34 She told Dr. Donell that the pain was exacerbated by sitting, standing, household chores,

walking, bending, lifting, twisting, driving, reaching, sleeping, movement, and exercise. (See e.g. T.

1132, 1134, 1136).

considered this and determined that her activities, together with the medical evidence of

record supported his conclusion that she could work full-time at her previous work as it

was generally performed. Although the ALJ did not specify each activity cited above as

inconsistent with plaintiff’s allegations, substantial evidence in the record supports the

ALJ’s consistency finding.

Plaintiff’s second argument is that the ALJ’s RFC is incorrect because of the

errors outlined in her first argument. Plaintiff essentially argues that “if” PA

Tontarski’s and Dr. Lorensen’s opinions were properly considered, then plaintiff would

be unable to stand on her feet or sit for prolonged periods and would be unable to

perform more than “occasional” handling, fingering, or feeling.35 (Pl.’s Br. at 16-17).

Plaintiff claims that, assuming the proper analysis, the VE testified that there was no

work that plaintiff could perform, either in the light or sedentary categories. (Id.) This

court has found no reversable error in the ALJ’s analysis of the medical evidence,

including his decision to give no weight to PA Tontarski’s MSS, in the ALJ’s

35 Plaintiff states that if all of Dr. Lorensen’s “observations” regarding her thumbs, neck, and

shoulder were to be “properly considered,” it is “clear that the Plaintiff is limited to ‘occasional

handling, fingering and feeling at the most,” which according to the VE would prevent plaintiff from

performing any substantial gainful activity. (Pl.’s Br. at 16-17). However, it is unclear to what plaintiff

is referring. In the MSS section of his consultative opinion, Dr. Lorensen specifically found that

plaintiff’s “hand and finger dexterity [were] intact,” and that her grip strength was “5/5 bilaterally.” (T.

640). While he did find six positive trigger points for fibromyalgia, he also concluded that plaintiff had

“no gross limitations to sitting, standing, walking or handling small objects with the hands.” (T. 641).

He concluded that plaintiff had mild to moderate limitations in bending, lifting, reaching, and turning

her head. (Id.) Plaintiff may be citing to the portion of Dr. Lorensen’s report, entitled “Chief

Complaint,” in which he articulates plaintiff’s subjective description of her limitations because that is

the only place in which Dr. Lorensen comments specifically about her thumbs, her fibromyalgia, and

other more substantial restrictions. (T. 638). However, that section of his report is followed by his

actual physical examination (T. 639-40), which formed the basis for his MSS appearing at (T. 641).

consistency determination, and in his RFC determination. Thus, plaintiffs second

argument is not persuasive.

WHEREFORE, based on the findings above, it is

ORDERED, that the decision of the Commissioner is AFFIRMED, and

plaintiff's complaint is DISMISSED, and it is

ORDERED, that the Clerk enter judgment for the DEFENDANT.

Dated: March 17, 2022

4 Bap.

Wecelo) he

U.S. Magistrate Judge

40