# Riley v. Commissioner of Social Security

> District Court, W.D. New York · March 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10361844

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10361844

## How later opinions describe it (automated extraction)

- finding a reviewing court does not try a benefits case de novo

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361844. Public record. Not legal advice.