Riley v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ANDRAE KEVIN RILEY,

Plaintiff, DECISION AND ORDER

-vs- 18-CV-6538-MJP

COMMISSIONER OF SOCIAL SECUIRTY,

Defendant.

INTRODUCTION

Plaintiff Andrae Kevin Riley (“Riley”) brings this action pursuant to

Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) seeking judicial

review of a final decision of the Commissioner of Social Security

(“Commissioner”) denying his application for Disability Insurance Benefits

(“DIB”). Pursuant to 28 U.S.C. § 636(c) the parties have consented to the

disposition of this case by a United States magistrate judge. (ECF No. 16.)

Presently before the Court are cross-motions for judgment on the

pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF

Nos. 11 & 14.) For the reasons set forth below, this Court finds that the decision

of the Commissioner is supported by substantial evidence in the record and is

in accordance with applicable legal standards. Accordingly, the

Commissioner’s motion for judgment on the pleadings is granted and Riley’s

motion for judgment on the pleadings is denied.

PROCEDURAL BACKGROUND

Plaintiff filed for benefits on March 9, 2015, alleging disability beginning

on February 26, 2015, based on a right hand injury, a right leg injury, and

mobility issues. (R.1 19–34.) The Social Security Administration denied his

claim. A hearing was held on April 20, 2017, before an Administrative Law

Judge (“A.L.J.”). A vocational expert also appeared and testified at the hearing.

The A.L.J. issued a Decision on June 9, 2017, finding that Plaintiff was

not disabled from February 26, 2015, through June 9, 2017, under Sections

216(i) and 223(d) of the Social Security Act. (R. 22.) Plaintiff appealed to the

Social Security Administration’s Appeals Counsel and that body denied his

request for review on May 22, 2018, making the A.L.J.’s decision the

Commissioner’s final decision. Plaintiff filed this lawsuit on July 19, 2018.

STANDARD OF REVIEW

Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear

claims based on the denial of Social Security benefits. Section 405(g) provides

that the District Court “shall have the power to enter, upon the pleadings and

transcript of the record, a judgment affirming, modifying, or reversing the

decision of the Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g) (2007). It directs that when

considering a claim, the Court must accept the findings of fact made by the

Commissioner, provided that such findings are supported by substantial

1 Record of Proceedings before the Social Security Administration. (Feb. 4,

2019, ECF No. 9.)

evidence in the record. Substantial evidence is defined as “‘more than a mere

scintilla. It means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389

(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));

see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997).

To determine whether substantial evidence supports the

Commissioner’s findings, the Court must “examine the entire record, including

contradictory evidence and evidence from which conflicting inferences can be

drawn.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v.

Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curium)). Section 405(g) limits

the scope of the Court’s review to two inquiries: whether the Commissioner’s

findings were supported by substantial evidence in the record, and whether

the Commissioner’s conclusions are based upon an erroneous legal standard.

Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); see also

Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try a benefits

case de novo).

A person is disabled for the purposes of SSI and disability benefits if he

or 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A).

In assessing whether a claimant is disabled, the A.L.J. must employ a five-step

sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)

(per curiam). The five steps are:

(1) whether the claimant is currently engaged in substantial

gainful activity;

(2) if not, whether the claimant has any “severe impairment”

that “significantly limits [the claimant’s] physical or mental

ability to do basic work activities”;

(3) if so, whether any of the claimant’s severe impairments

meets or equals one of the impairments listed in Appendix 1 of

Subpart P of Part 404 of the relevant regulations;

(4) if not, whether despite the claimant’s severe impairments,

the claimant retains the residual functional capacity [(“RFC”)] to

perform his past work; and

(5) if not, whether the claimant retains the [RFC] to perform

any other work that exists in significant numbers in the national

economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675

F.2d at 467. “The claimant bears the burden of proving his or her case at steps

one through four[;] . . . [a]t step five the burden shifts to the Commissioner to

‘show there is other gainful work in the national economy [which] the claimant

could perform.’” Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004) (quoting

Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).

RILEY’S CONTENTIONS

Riley claims that he raises two issues for the Court to review, but then,

from the organization of the brief, appears to only assert that the A.L.J. erred

at step two. (Pl.’s Mem. of Law at 2, Apr. 5, 2019, ECF No. 11-1.) Under the

heading titled, “Issues,” he wrote only this: “1. Did the A.L.J. Err in Finding

Plaintiff’s Knee Injury to be Nonsevere?” (Id.) Following the heading marked

“C. Argument,” he contends only that the A.L.J. erred in finding that Riley’s

knee impairment was not severe. (Id. at 8–9.) However, by page 11 in his

memorandum, it appears that Riley also challenges the A.L.J.’s finding

regarding his residual functional capacity (“RFC”). (Pl.’s Mem. of Law at 11–

12.) As part of that challenge, Riley alleges that the A.L.J. substituted his own

opinion for those of the medical experts. (Pl.’s Mem. of Law, 11-1 at 10.) Finally,

Riley asserts that “[t]o the degree that [medical] opinions were internally

inconsistent or inconsistent with the record, the A.L.J. should have recontacted

the physicians.” (Pl.’s Mem. of Law at 12.)

Riley’s argument for his step-two error is: “[M]ultiple opinions found

moderate or greater limitations with regards to the Plaintiff’s ability to stand,

and imaging did show degenerative changes in the Plaintiff’s knee.” (Pl.’s Mem.

of Law at 8.) According to Riley, the A.L.J. should have found that his knee

impairment was severe at step two because it is a “de minimis” standard. (Id.

at 9.)

Riley also contends that the A.L.J. improperly “cherry-picked” evidence

by relying on some statements from a source to support his conclusion that the

knee impairment was not severe, while ignoring other substantive detail to the

contrary from the same source without providing plausible reasons. (Id. at 11.)

In particular, Riley asserts that the A.L.J. erred in utilizing only portions of

the following opinion evidence:

1. Harbinder Toor, M.D.’s, April 7, 2015, Orthopedic Examination (R. 289–

92);

2. Sharon Glezen, M.D.’s, July 24, 2015 and July 30, 2015, visits, wherein

Riley sought completion of paperwork for determination of

employability (R. 537–40; 658–59.);

3. Bohdan Klymochko, D.O.’s, November 11, 2016, examination for

completion of paperwork (R. 545–48.); and

4. Alan Lorenz, M.D.’s, March 4, 2017, examination. (R. 596–600.)

(Pl.’s Mem. of Law at 12.)

ANALYSIS

The A.L.J. did not err at step two of the sequential analysis.

The Court concludes the A.L.J. properly determined that Riley’s knee

impairment was not severe at step two in which he indicated that:

Although the claimant has a history of a right knee injury with a

remote surgery, the evidence of record since the alleged onset date

suggests stability of this impairment with no anticipated

vocational restrictions. Accordingly, I find the claimant’s history

of right knee injury is a non-severe impairment.

(R. 24.)

“The claimant bears the burden of presenting evidence establishing

severity.” Taylor v. Astrue, 32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012), adopted,

32 F. Supp. 3d 253 (N.D.N.Y. 2012). Step two’s “severity” requirement is de

minimis and is meant only to screen out the weakest of claims. Dixon v.

Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). However, despite this lenient

standard, the “‘mere presence of a disease or impairment, or establishing that

a person has been diagnosed or treated for a disease or impairment’ is not, by

itself, sufficient to render a condition ‘severe.’” Taylor, 32 F. Supp. 3d at 265

(quoting Coleman v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995)). Rather, “to

be considered severe, an impairment or combination of impairments must

cause ‘more than minimal limitations in [a claimant’s] ability to perform work-

related functions.’” Windom v. Berryhill, No. 6:17-CV-06720-MAT, 2018 WL

4960491, at *3 (W.D.N.Y. Oct. 14, 2018) (quoting Donahue v. Colvin, No. 6:17-

CV-06838(MAT), 2018 WL 2354986, at *5 (W.D.N.Y. May 24, 2018)) (alteration

in original).

The Court finds that the A.L.J. correctly viewed the record as a whole

and determined that Riley did not have a severe impairment with respect to

his right knee as the clinical medical evidence does not support such a finding.

Riley’s treatment with regard to his right knee was conservative and clinical

observations are inconsistent with a finding of a severe right knee impairment.

An April 8, 2015, an x-ray of Riley’s right knee showed “no evidence of acute

fracture, dislocation or destructive bony lesion. The joint spaces are relatively

well maintained.” (R. 293.) In early April 2015, Riley attended an orthopedic

examination with Harbinder Toor, M.D., who found that Riley was in no acute

distress, his gait was slightly abnormal with a slight limp to the right, and that

Riley could perform 20% of a full squat. (R. 290.) Dr. Toor also noted that Riley

had difficulty getting on and off the exam table and difficulty getting out of a

chair but did not need help getting ready for the exam. (Id.)

Riley saw Robert Bronstein, M.D., an orthopedic surgeon, on April 26,

2015, for his right knee pain. (R. 386.) Dr. Bronstein performed an examination

of Riley’s right knee during that appointment and indicated that Riley

has no effusion. Range of motion 0–130°. He has no tenderness

over the quadriceps tendon, patella, patellar tendon, or tibial

tuberosity. He has no medial or lateral patellar facet tenderness.

He does have medial and lateral joint line tenderness. The knee

is stable to varus and valgus stress with a 1 + Lachman

examination negative posterior drawer. On circumduction

maneuvers he has no trapping. Radiographs today are within

normal limits following a previous ACL reconstruction.

(R. 382.) Dr. Bronstein indicated that he was going to send Riley for an MRI to

determine if there was a possible meniscal tear in his right knee. (R. 387.) Riley

thereafter underwent an MRI scan, the findings of which were as follows:

(1) Status post ACL repair. The graft is intact. (2) Oblique tear of

the posterior horn of the medial meniscus as seen on prior exam,

stable. Small tear of the anterior horn lateral meniscus.

Suspected postoperative changes to the lateral meniscus which is

diminutive. (3) Tricompartmental degenerative changes slightly

progressed in the medial and lateral compartments.

(R. 381.)

Riley returned to Dr. Bronstein following the MRI examination of his

right knee and Dr. Bronstein’s impression was that there was “[n]o evidence of

significant meniscal pathology. ACL graft is intact. Does have some

degenerative disease in the knee.” (R. 396.) Dr. Bronstein then indicated that

there was “[n]o surgical indication at this time” and that Riley would start a

rehabilitation program. (Id.) Riley then returned to Dr. Bronstein on July 16,

2015, during which Dr. Bronstein’s physical examination revealed that Riley’s

range of motion for his right knee was to full extension of 110 degrees of flexion.

(R. 416.) Dr. Bronstein found that the MRI showed no evidence of internal

derangement of the right knee at that time. (Id.)

Riley’s right knee was also examined by Sharon Glezen, M.D., in July

2015. (R. 537–40.) Although Dr. Glezen found that Riley had a limited range

of motion and had an “abnormal” squat, she also noted that his gait and heel

and toe walking were normal. (R. 539–40.) Dr. Glezen examined Riley’s right

knee again in October 2015, finding that he had a normal gait, normal heel

and toe walking and a normal squat. (R. 671.) In February 2016, Bohdan

Klymochko, D.O., examined Riley and found that he had grossly intact motor

function and sensation. (R. 551.) Dr. Klymochko also indicated that the right

knee had no edema, a 5/5 strength and mild instability. (Id.) Riley saw Dr.

Klymochko again in November 2016, during which the doctor found that

Riley’s gait and heel and toe walking were normal, but that he was unable to

squat fully due to his right knee. (R. 547.) Dr. Klymochko also found that Riley

had a limited range of motion in his right knee. (R. 548.) This objective medical

evidence demonstrates that there was substantial evidence upon which the

A.L.J. determined that Riley did not suffer from a severe knee impairment at

step two of the sequential evaluation process.

However, even if the A.L.J. erred in his finding that Riley’s right knee

impairment was not severe at step two of the analysis, this error is harmless

if the A.L.J. continues to consider the knee impairment in the rest of his

analysis, including the RFC. An error at step two may be harmless if the A.L.J.

identifies other severe impairments at step two, proceeds through the

remainder of the sequential evaluation process and specifically considers the

“nonsevere” impairment during subsequent steps of the process. See

Reices-Colon v. Astrue, 523 F. App’x 796, 798 (2d Cir. 2013) (Summ. Order).

The A.L.J. did just this, considering Riley’s “non-severe” knee impairment,

together with Riley’s severe right hand impairment, in the RFC analysis. (R.

24–30.) Accordingly, any alleged error at step two was rendered harmless.

The A.L.J. Properly Evaluated the Opinion Evidence in the Record.

While not clearly articulated in his memorandum of law, it appears that

Riley is also challenging the A.L.J.’s RFC finding, alleging that it was improper

for the A.L.J. to “rely on some statements from a source to support a conclusion,

while ignoring other substantive detail to the contrary from the same without

articulating a plausible reason.” (Pl.’s Mem. of Law at 11–12.) In particular,

Riley contends that the A.L.J. improperly weighed medical opinions provided

by: (1) Dr. Toor on April 7, 2015 (R. 289–94); (2) Dr. Glezen on July 24, 2015

(R. 658–59), and July 30, 2015 (R. 537–40); (3) Dr. Klymochko on November

25, 2016; and (4) Dr. Lorenz on March 4, 2017 (R. 595–600). Riley further

asserts that an A.L.J. cannot substitute his own opinion for that of an expert

who submitted an opinion. (Pl.’s Mem. Law at 10.) The Court has considered

each of these arguments and, for the reasons discussed below, finds them to be

without merit.

An A.L.J. is “entitled to weigh all of the evidence available to make an

RFC finding that [is] consistent with the record as a whole.” Matta v. Astrue,

508 F. App’x 53, 56 (2d Cir. 2013), citing, Richardson v. Perales, 402 U.S. 389,

399 (1971) (“We therefore are presented with the not uncommon situation of

conflicting medical evidence. The trier of fact has the duty to resolve that

conflict.”)); Dougherty-Noteboom v. Berryhill, 2018 WL 3866671, *9 (W.D.N.Y.

2018) (“[e]ven where the A.L.J.’s determination does not perfectly correspond

with any of the opinions of the medical sources ..., the A.L.J. was entitled to

weigh all of the evidence available to make a [RFC] finding that was consistent

with the record as a whole”). Pursuant to the Commissioner's regulations:

The ALJ must consider various factors in deciding how much

weight to give to any medical opinion in the record, regardless of

its source, including: (i) the frequency of examination and the

length, nature and extent of the treatment relationship; (ii) the

evidence in support of the ... physician’s opinion; (iii) the

consistency of the opinion with the record as a whole; (iv) whether

the opinion is from a specialist; and (v) other factors brought to

the Social Security Administration’s attention that tend to

support or contradict the opinion.

Pike v. Colvin, No. 14-CV-159-JTC, 2015 WL 1280484 at *4 (W.D.N.Y. Mar. 20,

2015) (quotation and alterations omitted). “An A.L.J. does not have to explicitly

walk through these factors,” so long as the Court can conclude that he or she

“applied the substance” of the regulations and appropriately set forth the

rationale for the weight given to the opinions. Hall v. Colvin, 37 F. Supp. 3d

614, 625 (W.D.N.Y. 2014) (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d

Cir. 2004)).

1. Harbinder Toor, M.D.’s Opinion

Dr. Toor conducted an orthopedic examination of Riley on April 7, 2015,

by referral from the Division of Disability Determination. (R. 289.) Dr. Toor

found that Riley appeared to be in no acute distress. (R. 290.) He also found

that Riley’s “[g]ait was slightly abnormal, slight limping to the right side.” (Id.)

Dr. Toor found that heel to toe walking was difficult for Riley. (Id.) Riley could

squat 20% of a full squat, with pain in the right knee noted. (Id.) Riley’s station

was normal. (Id.) Dr. Toor noted that Riley did not need help changing for the

examination, but had difficulty getting out of the chair and getting on and off

the exam table. (Id.) Dr. Toor further found that Riley’s “[r]ight knee flexion

and extension [to be] 140 degrees.” (R. 291.) Riley had tenderness and slight

swelling in his right knee. Riley had 5/5 strength in his proximal and distal

muscles bilaterally, no muscle atrophy, sensory abnormality, joint effusion,

inflammation or instability. (Id.) Finally, Dr. Toor found that Riley’s reflexes

were physiologic and equal. (Id.) Dr. Toor opined that Riley sustained an injury

to his right knee and that his prognosis was “fair.” (Id.)2 Dr. Toor concluded

that Riley had moderate limitations with standing and walking a long time

and that pain interfered with his balance. (Id.)

2 Under the section labeled “Diagnosis” in Dr. Toor’s report he listed both

Riley’s hand injury and knee injury. Directly below the “Diagnosis” section is a section

labeled “Prognosis.” However, it is unclear from the report whether the prognosis

provided refers to Dr. Toor’s diagnosis of a right hand injury, a right knee injury or

both.

The A.L.J. assigned “partial weight” to Dr. Toor’s opinion, crediting his

findings regarding Riley’s right hand injury, but indicating that “the record

reveals minimal symptoms affecting [Riley’s] standing, walking, and balancing

abilities,” thus crediting less weight to that portion of the opinion. (R. 28.)

Moreover, as a consultative examiner, Dr. Toor’s opinion was not

entitled to controlling weight. See Pagano v. Comm'r of Soc. Sec., No. 16-CV-

6537-FPG, 2017 WL 4276653 at *5, 2017 U.S. Dist. LEXIS 158656 at *12–13

(W.D.N.Y. Sept. 27, 2017) (“a consultative examiner’s opinion is generally

entitled to ‘little weight,’ because their examinations are often brief, are

generally performed without benefit or review of the claimant’s medical

history, and, at best, only give a glimpse of the claimant on a single day”)

(internal quotations and citations omitted).

The Court finds that the A.L.J. provided good reasons supported by

substantial evidence for the weight given to Dr. Toor’s opinion. Based upon the

forgoing, remand is not warranted on this basis.

2. Sharon J. Glezen, M.D.’s Opinions

The Record contains two relevant medical statements from Dr. Glezen.

On July 24, 2017, Riley saw Dr. Glezen for the completion of a physical

assessment for determination of employability. (R. 537.) Dr. Glezen’s physical

examination of Riley revealed that he had a normal gait, his heel and toe

walking was normal and that he had limited flexion when squatting. (R. 539.)

She also noted that Riley had a limited range of motion and mild swelling of

his right knee. (R. 540.) Dr. Glezen opined that Riley was unable to lift more

than twenty pounds, was unable to stand or walk more than an hour per shift

and that heights and unstable areas were contraindicated. (R. 538.) She

further found that Riley was “very limited” in walking, standing, pushing,

pulling and bending (i.e., 1–2 hours a work day). (R. 540.)

The A.L.J. assigned “little weight” to Dr. Glezen’s opinion, finding that

it overestimated Riley’s functional restrictions with respect to his right knee.

(R. 29.) The A.L.J. explained that even though Riley complained of right knee

pain “he frequently demonstrated an intact gait with no difficulty heel/toe

walking, and there is little evidence to support a finding that he has any

limitations with weightbearing or postural activities.” (Id.)

The A.L.J.’s assignment of “little weight” to Dr. Glezen’s July 24, 2015

opinion is consistent with the record as a whole. In addition, Dr. Glezen’s

opinion is entirely contradictory to the results of her physical examination of

Riley conducted less than three months later on October 2, 2015. (R. 544.) In a

report from that examination, she listed “no evidence of limitations” for

walking, standing, or sitting. (Id.)

Dr. Glezen’s physical examination of Riley on October 2, 2015, again for

the purpose of a physical assessment for determination of employability, does

not contain an opinion regarding Riley’s right knee. (R. 541–544.) In fact,

during her physical examination of Riley, Dr. Glezen found that Riley had a

normal gait, normal heel and toe walking and a normal squat. (R. 543.)

The A.L.J. assigned “partial weight” to Dr. Glezen’s October 2, 2015,

opinion, writing:

I assign partial weight to this opinion, agreeing that the claimant

has no significant walking, standing, sitting, seeing, hearing, or

speaking limitations, but finding the remaining portions of this

opinion to overestimate claimant’s . . . right knee restrictions.

Furthermore, this opinion is internally inconsistent, in that

although it found minimal standing/walking/sitting limitations,

it went on to state that the claimant could not perform any work

activity.

(R. 29.)

Dr. Glezen’s October 2, 2015, opinion is inconsistent with the record as

a whole, which demonstrates only benign treatment of Riley’s right knee after

his surgery. The A.L.J. provided good reasons supported by substantial

evidence for granting partial weight to the opinion. Based upon the forgoing,

remand is not warranted on this basis.

3. Bohdan Klymochko, D.O.’s Opinion

On November 29, 2016, Dr. Klymochko conducted a physical assessment

for determination of employability. (R. 545.) Dr. Klymochko’s physical

examination of Riley revealed a normal gait, normal heel and toe walking, but

an “abnormal” squat in that Riley was “unable to squat fully due to R knee.”

(R. 547.) Dr. Klymochko also found that Riley’s right knee had a limited range

of motion in flexion. (R. 548.) He opined that Riley was “very limited” (i.e., 1–2

hours a work day) for the following: walking, standing, sitting, pushing, pulling

and bending. (Id.) Dr. Klymochko concluded that Riley was “permanently

disabled.” (R. 546.) This examination contradicts Dr. Klymochko’s earlier

examination of Riley on February 2, 2016, in which he found no edema of his

right knee, a 5/5 strength and only mild instability. (R. 551.)

The A.L.J. assigned little weight to Dr. Klymochko’s November 2016

opinion, explaining that “the evidence regarding the claimant’s right knee

impairment is slim and does not support such drastic weight-bearing

restrictions” as suggested by Dr. Klymochko. (R. 29.) The A.L.J. also assigned

little weight to Dr. Klymochko’s conclusion of disability as “vague, conclusory

and [ ] an issue reserved to the Commissioner.” (Id.)

The A.L.J.’s assignment of “little weight” to Dr. Klymochko’s opinion is

consistent with the record as a whole and provides concrete reasons supported

by substantial evidence. In addition, Dr. Klymockho’s opinion contradicts his

physical examination of Riley conducted earlier in 2016. Moreover, the A.L.J.

correctly gave little weight to Dr. Klymochko’s finding that Riley was

permanently disabled as the authority to determine disability rests with the

Commissioner. Greek v. Colvin, 802 F.3d 370, 374 (2d Cir. 2015) (“The ultimate

determination of whether a person has a disability within the meaning of the

Act belongs to the Commissioner.”) (citations omitted). Based upon the

forgoing, remand is not warranted on this basis.

4. Alan Lorenz, M.D.’s Opinion

Dr. Lorenz saw Riley on March 4, 2017, for a physical related to Riley’s

claims before the Social Security Administration. (R. 596.) Dr. Lorenz noted

that Riley reported he could walk zero city blocks but opined that Riley did not

need to include periods of walking around during the workday and noted that

Riley did not need to take any unscheduled breaks. (R. 597–98.) Dr. Lorenz

also noted that Riley’s leg(s) did not need to be elevated and he did not need to

utilize any assistive device. (R. 598.) Dr. Lorenz found that Riley could only

“rarely” lift 10 pounds and could never lift anything heavier than that. (Id.)

Dr. Lorenz opined that Riley would miss four days a month as a result of his

impairments. (R. 599.)

The A.L.J. assigned “partial weight” to Dr. Lorenz’s opinion, “agreeing

that the claimant has no sitting limitations, did not require breaks . . . a

sit/stand option or any assistive devices. However, the remaining portions of

this opinion overestimate the limiting effects of the claimant’s . . . right knee

impairment[], considering the claimant’s physical examinations and

conservative treatment history.” (R. 30.)

The A.L.J. properly considered and weighed Dr. Lorenz’s opinion

relating to Riley’s right knee impairment. The A.L.J. specifically articulated

that portions of Dr. Lorenz’s opinion were not supported by the physical

examinations and the conservative treatment of Riley’s right knee. For these

reasons, remand is not warranted.

The A.L.J. Did Not Substitute His Own Opinion for That of Medical

Experts.

Riley asserts that the A.L.J. “set his own expertise against that of an

expert who submitted an opinion.” (Pl.’s Mem. of Law at 10.) Where the A.L.J.

explains why he credited some portions of the medical opinion evidence and

did not credit others, he has not substituted his own opinion for that of a

medical source. Rivera v. Berryhill, 312 F. Supp. 3d 375, 380 (W.D.N.Y. 2018)

(finding that A.L.J.’s determinations with respect to weighing of opinion

evidence was proper where the “A.L.J. discussed the medical opinion evidence,

set forth his reasoning for the weight afforded to each opinion, and cited

specific evidence in the record which supported his determination.”). The A.L.J.

carefully reviewed the medical evidence in the record, including the results of

Riley’s physical examinations, and explained in each instance why he credited

some portions of the opinion evidence over others. For this reason, the A.L.J.

did not substitute his own opinion for that of any medical source.

The A.L.J. Was Not Required to Contact Medical Experts Who Provided

Opinions That Were Internally Inconsistent or Inconsistent with the

Record.

Riley asserts that where the A.L.J. discounted certain opinion evidence

as being internally inconsistent or inconsistent with the record he had an

obligation to “recontact” those physicians regarding their opinions. (Pl.’s Mem.

of Law at 10, 12.) “It is well established in this Circuit that ‘where there are no

obvious gaps in the administrative record, and where the A.L.J. already

possesses a ‘complete medical history,’ the A.L.J. is under no obligation to seek

additional information in advance of rejecting a benefits claim.” Jennings v.

Colvin, No. 13-CV-834, 2014 WL 3748574, at *5 (W.D.N.Y. July 29,

2014) (citing Rosa v. Callahan, 168 F.3d 72, 79 n. 5 (2d Cir. 1999)) (citation

omitted). An A.L.J. is only required to recontact a medical source if the records

received were “inadequate . . . to determine whether [Plaintiff was] disabled.”

Brogan–Dawley v. Astrue, 484 Fed. App’x. 632, 634 (2d Cir. 2012). As explained

by the Second Circuit:

The mere fact that medical evidence is conflicting or internally

inconsistent does not mean that an A.L.J. is required to re-contact

a [ ] physician. Rather … the A.L.J. will weigh all of the evidence

and see whether [he] can decide whether a claimant is disabled

based on the evidence he has, even if that evidence is internally

inconsistent.

Micheli v. Astrue, 501 Fed. App’x. 26, 29–30 (2d Cir. 2012); see also 20 C.F.R.

§ 404.1520b(b) (“If any of the evidence in your case record, including any

medical opinion(s), is inconsistent, we will weigh the relevant evidence and see

whether we can determine whether you are disabled based on the evidence we

have.”).

The Court finds no gap in the record as to the opinions provided by Drs.

Toor, Glezen, Klymochko, or Lorenz. Because the record already contained

adequate evidence for the A.L.J. to reach a decision and substantial evidence

supported the A.L.J.’s RFC determination, the A.L.J. was not required to

further develop the record by recontacting the physicians at issue. Indeed, the

A.L.J. resolved any inconsistencies by relying on and weighing the evidence he

had and reviewing the record as a whole, which was the most efficient and

appropriate source. Quinn v. Colvin, 199 F. Supp. 3d 692, 710 (W.D.N.Y. 2016).

Finally, Defendant correctly argues that the regulations regarding

recontacting physicians were amended and that those in effect at the time

Riley filed his claim did not include any requirement that the A.L.J. first

recontact a medical source upon discovering a conflict in Riley’s medical

record.3 The regulations valid at the time of the A.L.J.’s decision provided, “[i]f

any of the evidence in your case record, including any medical opinion(s), is

inconsistent, we will weigh the relevant evidence and see whether we can

determine whether you are disabled based on the evidence we have.” 20 C.F.R.

§ 404.1520b.4 As explained above, the A.L.J. had sufficient evidence in the

record to make his determination and properly weighed the opinion evidence.

For these reasons, remand is not warranted on this issue.

CONCLUSION

The Court finds that the Commissioner’s denial of DIB was based upon

substantial evidence and was not erroneous as a matter of law. Accordingly,

the A.L.J.’s decision is affirmed. For the reasons stated above, the Court grants

the Commissioner’s motion for judgment on the pleadings (ECF No. 14). The

3 The regulations were revised, effective March 26, 2012, to wholesale remove

the provision stating,

We will first recontact your physician or psychologist or other medical

source to determine whether the additional information we need is

readily available. We will seek additional evidence or clarification from

your medical source when the report from your medical source contains

a conflict or ambiguity that must be resolved, the report does not appear

to be based on medically acceptable clinical and laboratory diagnostic

techniques.

20 C.F.R. § 404.1512(e) (prior to amendment).

4 The current version of 20 C.F.R. § 404.1520b “How We Consider Evidence,”

was effective March 27, 2017, and applies to claims filed on or after March 27, 2017.

Prior versions of agency regulations are available on Westlaw. From the current

version of the regulation on Westlaw, click on “History” tab, then “Versions.” The

version applicable to the A.L.J.’s decision is 20 C.F.R. § 404.1520b “How We Consider

Evidence,” effective from March 26, 2012 through March 26, 2017.

Court denies Riley’s motion for judgment on the pleadings (ECF No. 11). The

Clerk will enter judgment for the Commissioner and close this case.

IT IS SO ORDERED.

DATED: March 5, 2020

Rochester, New York

/s/ Mark W. Pedersen

MARK W. PEDERSEN

United States Magistrate Judge