Gorey v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

______________________________________________________________________

KATHERINE G.,

Plaintiff,

v. 1:22-CV-1309

(FJS/ATB)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

______________________________________________________________________

DANIEL A. OSBORN, ESQ., for Plaintiff

HEETANO SHAMSOONDAR, Special Asst. U.S. Attorney, for Defendant

ANDREW T. BAXTER, U.S. Magistrate Judge

REPORT-RECOMMENDATION

Plaintiff commenced this action pursuant to the Social Security Act, 42 U.S.C. §

405(g), seeking judicial review of a final decision of the Commissioner of Social

Security, denying her application for benefits. Plaintiff did not consent to the

jurisdiction of a Magistrate Judge (Dkt. No. 5), and this matter was therefore referred to

me for Report and Recommendation by Senior United States District Court Judge

Frederick J. Scullin, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). Both

parties filed briefs, which the court treats as motions under Federal Rule of Civil

Procedure Rule 12(c), in accordance with General Order 18.

I. PROCEDURAL HISTORY

On November 25, 2020, plaintiff filed an application for Disability Insurance

Benefits (“DIB”), alleging disability beginning May 16, 2019. (Administrative

Transcript (“T”) 77, 91). Plaintiff’s application was denied initially on May 19, 2021

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(T. 114-126), and upon reconsideration on September 3, 2021 (T. 130-140). On

January 10, 2022, Administrative Law Judge (“ALJ”) Sharda Singh conducted a

hearing during which plaintiff and vocational expert (“VE”) Andrew Vaughn testified.

(T. 51-76). On February 14, 2022, the ALJ issued an order denying plaintiff’s claim.

(T. 11-22). This decision became the Commissioner’s final decision when the Appeals

Council denied plaintiff’s request for review on October 6, 2022. (T. 1-3).

II. GENERALLY APPLICABLE LAW

A. Disability Standards

To be considered disabled, a plaintiff seeking DIB or Supplemental Security

Income 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

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

education, and work experience, engage in any other kind of substantial

gainful work which exists in the national economy, regardless of whether such

work exists in the immediate area in which he lives, or whether a specific job

vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

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

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

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

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

considers whether the claimant has a “severe impairment” which

significantly limits his physical or mental ability to do basic work activities.

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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 the

regulations. If the claimant has such an impairment, the [Commissioner]

will consider him 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, he has the residual functional capacity to

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

work, the [Commissioner] then determines whether there is other work

which the claimant can perform.

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

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

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

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

B. Scope of Review

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

whether the correct legal standards were applied and whether substantial evidence

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

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

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

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

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

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

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

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

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

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

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that which detracts from its weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255,

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

the administrative record for that of the Commissioner if the record contains substantial

support for the ALJ’s decision. Id. See also Rutherford v. Schweiker, 685 F.2d 60, 62

(2d Cir. 1982).

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

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

v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (“[W]e are unwilling to require an ALJ

explicitly to reconcile every conflicting shred of medical testimony[.]”). However, the

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

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

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

III. FACTS

Plaintiff was thirty-seven years old on the alleged disability onset date. (T. 20).

She had at least a high school education (T. 20) and lived in an apartment (T. 69).

Plaintiff had a vehicle and was able to drive approximately three hours before stopping.

(T. 69). Plaintiff worked as a state trooper before she suffered a work-related injury on

August 25, 2018. (T. 287).

Plaintiff, who is right-handed, claims “she sustained injur[ies] to her bilateral

wrist, bilateral hand and thumb.” (T. 15, 720). Plaintiff testified that she had issues

“pinching, grasping, typing, writing, pushing and pulling.” (T. 56). She also testified

that she had difficulty with “simple tasks like buttoning [her] jeans.” (T. 57). Plaintiff

testified that her “left hand is worse” and she had issues typing, writing, and grasping

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with her left hand as well. (T. 57-58). She testified that she wore a thumb splint on her

right thumb (T. 57) and was currently waiting to have the de quervain’s release surgery

on her right hand (T. 56).

Plaintiff was also diagnosed with bursitis of the left scapula, right scapula, and

neck. (T. 58). She testified that this caused her pain when she lifted her hands up or

down. (T. 58). Plaintiff also stated that looking up and down aggravated her daily neck

pain. (T. 60). She further testified that she received pain injections and purchased an

upper body brace for this condition. (T. 58). Plaintiff used the brace to help with her

cervical and thoracic spine issues. (T. 61). She alleges that her back issues stemmed

from wearing a uniform made for the opposite sex during her time as a state trooper.

(T. 61-63).

The ALJ’s decision provides a detailed statement of the medical and other

evidence of record. (T. 14-20). Rather than reciting this evidence at the outset, the

court will discuss the relevant details below, as necessary to address the issues raised by

plaintiff.

IV. THE ALJ’S DECISION

The ALJ first determined at step one of the sequential evaluation that plaintiff

had not engaged in substantial gainful activity since her alleged onset date of May 16,

2019. (T. 14). Next, the ALJ found that plaintiff has the following severe impairments:

cervical spine degenerative disc disease, de quervain tenosynovitis, bilateral wrist

triangular fibrocartilage complex (TFCC) tear, right wrist sprain/strain, and asthma.

(Id.). At the third step, the ALJ determined that plaintiff’s impairments did not meet or

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medically equal the criteria of any listed impairments in Appendix 1 to 20 C.F.R. Part

404, Subpart P. (T. 16).

At step four, the ALJ found that plaintiff had the residual functional capacity

(“RFC”)

to perform light work as defined in 20 CFR 404.1567(b) except she: can

perform frequent gripping; can perform frequent fine and gross hand

manipulation bilaterally; cannot perform overhead reaching with the upper

extremities; can perform frequent neck rotation and flexion; should avoid

respiratory irritants; and cannot work at unprotected heights or with moving

machinery.

(T. 15).

In making the RFC determination, the ALJ stated that she considered all of

plaintiff’s symptoms, and the extent to which those symptoms could “reasonably be

accepted as consistent with the objective medical evidence and other evidence[.]” (T.

15). The ALJ further noted that she fully considered “the medical opinion(s) and prior

administrative medical finding(s)” pursuant to 20 C.F.R. § 404.1520(c). (Id.). After

considering plaintiff’s statements regarding her symptoms, along with the other

evidence of record, the ALJ concluded that the plaintiff’s “statements concerning the

intensity, persistence and limiting effects of these symptoms are not entirely consistent

with the medical evidence and other evidence in the record.” (Id.). The ALJ then

determined that plaintiff was unable to perform any past relevant work. (T. 20).

However, the ALJ did determine that there were other jobs that exist in significant

numbers in the national economy that plaintiff could perform. (T. 21). Accordingly,

the ALJ ruled that plaintiff was not disabled since the date the application was filed. (T.

22)

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V. ISSUES IN CONTENTION

Plaintiff raises two arguments:

1. The ALJ erred by failing to adequately consider the medical opinion of Dr.

Gabriel Dassa. (Plaintiff’s Brief (“Pl.’s Br.”) at 13-15 (Dkt. No. 7).

2. The ALJ’s RFC is not supported by substantial evidence, particularly with

respect to the lifting requirements of light work. (Pl.’s Br. at 15-17).

Defendant contends that the Commissioner’s determination should be affirmed because

the ALJ properly considered Dr. Dassa’s opinion and the ALJ’s RFC was supported by

substantial evidence. (Defendant’s Brief (“Def.’s Br.”) at 5-9) (Dkt. No. 10). For the

reasons stated below, this court agrees with the defendant and finds the ALJ’s decision

was supported by substantial evidence.

DISCUSSION

VI. RFC/EVALUATING MEDICAL EVIDENCE/EVALUATING

SUBJECTIVE SYMPTOMS

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

activities in an ordinary work setting on a regular and continuing basis . . . .” A “regular

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

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

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

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

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

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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 can perform 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, citing specific medical

facts, and non-medical evidence. Natashia R. v. Berryhill, No. 3:17-CV-01266 (TWD),

2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing SSR 96-8p, 1996 WL

374184, at *7).

2. Evaluation of Medical Opinion Evidence

The regulations regarding the evaluation of medical evidence have been amended

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

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

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

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

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

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

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

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

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

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

Although the new regulations eliminate the perceived hierarchy of medical

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

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

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

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

for determining the persuasiveness of medical opinions are consistency and

supportability,” which are the “same factors” that formed the foundation of the treating

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

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

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

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

objective medical evidence and supporting explanations presented by a medical source

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

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

be.” Id. at §§ 404.1520c(c)(1), 416.920c(c)(1). The regulations provide that with

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respect to “consistency,” “[t]he more consistent a medical opinion(s) or prior

administrative medical finding(s) is with the evidence from other medical sources and

nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior

administrative medical finding(s) will be.” Id. at §§ 404.1520c(c)(2), 416.920c(c)(2).

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

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

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

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

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

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

416.920c(b)(3).

3. Evaluation of Subjective Symptoms

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, 2016 WL 1020935, 81 Fed. Reg. 14166-01 at 14169-70, (Mar. 16, 2016)).

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

“sub-regulatory policy” because the regulations themselves do not use that term. SSR

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16-3p, 81 Fed. Reg. at 14167. Instead, symptom evaluation tracks the language of the

regulations.1 The evaluation of symptoms involves a two-step process. First, the ALJ

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

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

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

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

plaintiff’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 plaintiff’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).2

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

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

Cir. 2013). The ALJ must assess the plaintiff’s subjective complaints by considering

the record in light of the following symptom-related factors: (1) plaintiff’s daily

activities; (2) location, duration, frequency, and intensity of plaintiff’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

1 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 plaintiff’s

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

remain consistent with the terms as used by the Commissioner.

2 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.”

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symptoms; (6) any measures taken by the plaintiff to relieve symptoms; and (7) any

other factors concerning plaintiff’s functional limitations and restrictions due to

symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

B. Analysis

Plaintiff first argues the ALJ failed to properly consider Dr. Gabriel Dassa’s

opinion. (Pl.’s Br. at 13-15). On August 28, 2021, Dr. Dassa completed a physical

capabilities evaluation relative to plaintiff’s upper extremities. (T. 723). The ALJ

noted

Dr. Dassa reported the [plaintiff] had injuries of both upper extremities and

opined a considerable degree of functional restriction. For instance, he

assessed the [plaintiff] could only occasionally lift and carry up to 5 pounds,

occasionally reach in multiple directions, and occasionally perform simple

grasping, fine manipulation, handling clerical objects near the body, and

climbing stairs. Dr. Dassa added the [plaintiff] could never push/pull or

perform forearm motions, wrist motion, firm grasping, fingering/keying,

crawling, climbing ladders, or work around vibrations.

(T. 19).

The ALJ found that Dr. Dassa’s opinion was not persuasive. (T. 19-20). With

respect to supportability, the ALJ noted that Dr. Dassa’s treatment records did not

“adequately support[]” the “rather extreme degree of exertional and non-exertional

restriction[s.]” (T. 19). This shows the ALJ considered Dr. Dassa’s treatment records

but did not find that they supported the doctor’s opinion. With respect to consistency,

the ALJ concluded that Dr. Dassa’s opinion was not consistent with consultative

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examiner Dr. Puri’s opinion3 and Dr. Dassa’s own treatment records. (T. 19). The ALJ

specifically noted that Dr. Dassa’s

treatment records typically show[ed] some notable positive hand examination

findings, but also fairly intact physiologic functions. For instance, in July

2021, around the time of his questionnaire, Dr. Dassa noted positive right

Finklestein sign and some swelling, tenderness, and decreased range of

motion of the hands, but also full pronation and supination of the bilateral

wrists, no clinical instability with stress test to the right collateral ligament,

intact ability to make a full fist, and intact sensation and motor function[.]

(T. 20). The ALJ also initially referred to Dr. Dassa as an orthopedic surgeon,

indicating the ALJ considered his specialization. (T. 16). Additionally, the ALJ cited

extensively to Dr. Dassa’s treatment records throughout the decision, showing she was

aware of the lengthy treatment relationship between Dr. Dassa and plaintiff. (T. 16-20).

Thus, the court concludes that the ALJ fulfilled the obligation, set forth in SSA

regulations, that Dr. Dassa’s opinion be evaluated in terms of the factors identified in 20

C.F.R. § 404.1520c(c).

Plaintiff also argues the ALJ’s RFC is not supported by substantial evidence

because the administrative record “is devoid of any valid evidence (yet [sic] alone

substantial evidence) indicating that [plaintiff] can perform the exertional requirements

of work at the light exertional level.” (Pl.’s Br. at 16). Plaintiff takes specific issue

with the lifting requirement. (Id.). Light work involves lifting no more than twenty

pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds.

3 Consulting neurologist, Dr. Puri, examined plaintiff and found that she had no objective

limitations to fine motor/gross motor activities, no objective limitations to her gait, mild

limitations on activities of daily living, mild limitations on overhead reaching and to gripping,

and moderate limitations as to lifting weights. (T. 589).

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Harold W.J. v. Comm’r of Soc. Sec., No. 6:18-CV-146 (ATB), 2019 WL 1410350, at *6

(N.D.N.Y. Mar. 27, 2019).

The ALJ noted plaintiff claims “she can essentially lift no weight with the left

arm and only 5 to 6 pounds with the right arm.” (T. 15). The ALJ also noted Dr. Dassa

opined plaintiff “could only occasionally lift and carry up to 5 pounds,” but that

“Dr. Puri opined moderate limitations to lifting weights . . . suggesting [plaintiff] should

avoid heavier types of lifting.” (T. 19, 587). As defendant points out, courts in this

district have consistently found that moderate exertional limitations are consistent with

an ability to perform the full range of light work. See Thola J.W. v. Comm’r of Soc.

Sec., No. 5:19-CV-1068 (GLS), 2021 WL 981589, at *2 (N.D.N.Y. Mar. 16, 2021)

(finding RFC for a full range of light work was consistent with moderate limitations in

lifting, carrying, pushing, and pulling); Raymonda C. v. Comm’r of Soc. Sec., No. 3:19-

CV-0178 (GTS), 2020 WL 42814, at *4 (N.D.N.Y. Jan. 3, 2020) (“[C]ourts have

consistently found that a ‘moderate’ limitation in [standing, walking, lifting, and

carrying] is essentially equivalent to an ability to perform light work.” (collecting

cases)); Amanda L. v. Saul, No. 8:18-CV-01221 (NAM), 2019 WL 5865388, at *8 n.3

(N.D.N.Y. Nov. 8, 2019) (“[M]oderate limitations to repetitive lifting, bending,

reaching, pushing, pulling, or carrying are not inconsistent with an RFC for a full range

of light work.”) (internal quotation marks and citation omitted).

Furthermore, the state agency medical consultants both found plaintiff could

occasionally lift twenty pounds and frequently lift ten pounds. (T. 84, 100-101). The

ALJ found the state agency medical consultants assessments persuasive with additional

limitations. (T. 19). The additional limitations did not concern plaintiff’s ability to lift.

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(Id.). The ALJ properly relied on the state agency consultants’ opinions along with Dr.

Puri’s opinion to support his RFC finding. When the state agency consultants and Dr.

Dassa reached differing conclusions, this created a conflict in the record. “Because it is

the sole responsibility of the ALJ to weigh all medical evidence and resolve any

material conflicts in the record where the record provides sufficient evidence for such a

resolution, the ALJ will weigh all of the evidence and see whether it can decide whether

a claimant is disabled based on the evidence she has, even when that evidence is

internally inconsistent.” Micheli v. Astrue, 501 F. App’x 26, 29 (2d Cir. 2012) (citing

Richardson v. Perales, 402 U.S. 389, 399 (1971)).

Although “the opinion of a non-examining state agency consultant is ordinarily

not a sufficient substitute for the opinion of the claimant’s treating provider,” Vecchitto

v. Saul, No. 3:19-CV-726, 2020 WL 4696791, at *6 (D. Conn. Aug. 13, 2020), courts

have repeatedly held that “an 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.”

Christina K. v. Comm’r of Soc. Sec., No. 20-CV-1244, 2022 WL 409576, at *4

(W.D.N.Y. Feb. 10, 2022) (emphasis added). In this case, the ALJ’s written decision

“makes it clear that he considered [state agency consultants] opinions as just one part of

a larger analysis of plaintiff’s treatment.” Johnathan M. v. Comm’r of Soc. Sec., No.

3:21-CV-1076, 2022 WL 18831465, at *6 (N.D.N.Y. Nov. 9, 2022). For example, the

ALJ did not discount Dr. Dassa findings wholly on the basis of these opinions, but

looked to his consistency with the record as a whole and the degree of support provided

for his opinion. Moreover, as discussed above the ALJ also relied on Dr. Puri’s opinion

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regarding plaintiff’s ability to lift. Accordingly, the court finds substantial evidence

supports the ALJ’s RFC and affirms the Commissioner’s decision.

WHEREFORE, based on the findings above, it is

RECOMMENDED, that plaintiff’s motion for judgment on the pleadings (Dkt.

Nos. 7, 11) be DENIED; and it is further

RECOMMENDED, that defendant’s motion for judgment on the pleadings

(Dkt. No. 10) be GRANTED; and it is further

RECOMMENDED, that the decision of the Commissioner be AFFIRMED, and

plaintiff’s complaint (Dkt. No. 1) be DISMISSED IN ITS ENTIRETY.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have

fourteen (14) days within which to file written objections to the foregoing report. Such

objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO

THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE

REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of

Health and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R.

Civ. P. 6(a), 6(e), 72.

Dated: August 23, 2023

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