Burdick v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

DEBORAH BURDICK,

Plaintiff, DECISION AND ORDER

v.

6:18-CV-06881 EAW

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________

INTRODUCTION

Represented by counsel, Plaintiff Deborah Burdick (“Plaintiff”) brings this action

pursuant to Titles II and XVI of the Social Security Act (the “Act”), seeking review of the

final decision of the Commissioner of Social Security (the “Commissioner,” or

“Defendant”) denying her applications for disability insurance benefits (“DIB”) and

supplemental security income (“SSI”). (Dkt. 1). This Court has jurisdiction over the matter

pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions

for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil

Procedure (Dkt. 9; Dkt. 14), and Plaintiff’s reply (Dkt. 17). For the reasons discussed

below, the Commissioner’s motion (Dkt. 14) is granted and Plaintiff’s motion (Dkt. 9) is

denied.

BACKGROUND

Plaintiff protectively filed her applications for DIB and SSI on April 12, 2013. (Dkt.

8 at 61-62, 599).1 In her applications, Plaintiff alleged disability beginning September 27,

2010, due to the following impairments: three bulging discs; disc deterioration; depression;

anxiety; arthritis; glaucoma; asthma; and eczema. (Id. at 63, 78, 599). Plaintiff’s

applications were initially denied on July 11, 2013. (Id. at 97-102, 599). Following

hearings before administrative law judge (“ALJ”) Elizabeth W. Koennecke in December

2014 and May 2015, the ALJ issued an unfavorable decision on June 15, 2015. (Id. at 14-

27, 37-60, 599). The Appeals Council denied Plaintiff’s request for review (id. at 7-9,

599), and Plaintiff appealed the decision to the United States District Court (id. at 599).

On August 11, 2017, the parties entered into a stipulation, agreeing that Plaintiff’s

case should be remanded to the Commissioner for further administrative proceedings. (Id.

at 599, 670-71). The Appeals Council issued an order on December 14, 2017, remanding

the case to the ALJ and directing that the ALJ further consider opinions offered by

Plaintiff’s treating and non-treating sources. (Id. at 673-80). A second hearing was held

on August 22, 2018. (Id. at 599, 632-45). Plaintiff appeared by video in Horseheads, New

York, and the ALJ presided over the hearing from Syracuse, New York. (Id. at 599-600).

1 When referencing the page number(s) of docket citations in this Decision and Order,

the Court will cite to the CM/ECF-generated page numbers that appear in the upper

righthand corner of each document.

On September 21, 2018, the ALJ issued an unfavorable decision. (Id. at 596-624). This

action followed.

LEGAL STANDARD

I. District Court Review

“In reviewing a final decision of the [Social Security Administration (“SSA”)], this

Court is limited to determining whether the SSA’s conclusions were supported by

substantial evidence in the record and were based on a correct legal standard.” Talavera

v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C.

§ 405(g). The Act holds that a decision by the Commissioner is “conclusive” if it is

supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more

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

as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)

(quotation omitted). It is not the Court’s function to “determine de novo whether [the

claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation

omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.

1990) (holding that review of the Secretary’s decision is not de novo and that the

Secretary’s findings are conclusive if supported by substantial evidence). However, “[t]he

deferential standard of review for substantial evidence does not apply to the

Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003)

(citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).

II. Disability Determination

An ALJ follows a five-step sequential evaluation to determine whether a claimant

is disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467,

470-71 (1986). At step one, the ALJ determines whether the claimant is engaged in

substantial gainful work activity. See 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the

claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the

claimant has an impairment, or combination of impairments, that is “severe” within the

meaning of the Act, in that it imposes significant restrictions on the claimant’s ability to

perform basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant does not

have a severe impairment or combination of impairments, the analysis concludes with a

finding of “not disabled.” If the claimant does have at least one severe impairment, the

ALJ continues to step three.

At step three, the ALJ examines whether a claimant’s impairment meets or

medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of

Regulation No. 4 (the “Listings”). Id. §§ 404.1520(d), 416.920(d). If the impairment meets

or medically equals the criteria of a Listing and meets the durational requirement (id.

§§ 404.1509, 416.909), the claimant is disabled. If not, the ALJ determines the claimant’s

residual functional capacity (“RFC”), which is the ability to perform physical or mental

work activities on a sustained basis, notwithstanding limitations for the collective

impairments. See id. §§ 404.1520(e), 416.920(e).

The ALJ then proceeds to step four and determines whether the claimant’s RFC

permits the claimant to perform the requirements of his or her past relevant work. Id.

§§ 404.1520(f), 416.920(f). If the claimant can perform such requirements, then he or she

is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein

the burden shifts to the Commissioner to show that the claimant is not disabled. Id.

§§ 404.1520(g), 416.920(g). To do so, the Commissioner must present evidence to

demonstrate that the claimant “retains a residual functional capacity to perform alternative

substantial gainful work which exists in the national economy” in light of the claimant’s

age, education, and work experience. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)

(quotation omitted); see also 20 C.F.R. § 404.1560(c).

DISCUSSION

I. The ALJ’s Decision

In determining whether Plaintiff was disabled, the ALJ applied the five-step

sequential evaluation set forth in 20 C.F.R. §§ 404.1520 and 416.920. Initially, the ALJ

determined that Plaintiff last met the insured status requirements of the Act on December

31, 2015. (Dkt. 8 at 602). At step one, the ALJ determined that Plaintiff had not engaged

in substantial gainful work activity since September 27, 2010, the alleged onset date. (Id.).

At step two, the ALJ found that Plaintiff suffered from the severe impairments of:

“obesity and lumbar spine disorder with facet arthropathy, degenerative disc disease, and

sacroiliitis.” (Id.). The ALJ further found that the following medically determinable

impairments were non-severe: respiratory disorders (including asthma, bronchial asthma,

and/or seasonal allergies); digestive disorders (including GERD, acid reflux, heartburn,

constipation, hemorrhoids, and/or side effects of medications); glaucoma and other vision

problems; overactive bladder with stress urinary incontinence; gynecological issues;

chronic disorders of her cervical and thoracic spine and both knees; headaches/migraines;

eczema, rash, tinea, candidiasis of skin and nails, and other related skin conditions; and

mental disorders (including depression, neurotic depression, reactive depression, affective

disorder, adjustment disorder, dysthymic disorder, and anxiety disorder). (Id. at 603-07).

With respect to the conditions of obstructive sleep apnea, dizziness, vitamin D deficiency,

renal cyst, dental problems, thyroidmegaly, tachycardia, easy bruising, hematemesis, and

history of blood transfusion, the ALJ concluded that these were not medically determinable

impairments. (Id. at 607).

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

combination of impairments that met or medically equaled the severity of any Listing. (Id.

at 29). The ALJ particularly considered the criteria of Listings 1.02, 1.04, 11.00, 14.00,

and 14.09, in reaching her conclusion, as well as considering the effect of Plaintiff’s obesity

as required by Social Security Ruling (“SSR”) 02-1p. (Id. at 607-08).

Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC

to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the

additional limitations that Plaintiff:

can occasionally lift, carry, push, or pull 10 pounds; can frequently lift, carry,

push, or pull less than 10 pounds; can occasionally squat, kneel, crawl, climb

stairs, or twist; and requires a job that can be performed in a seated or

standing position, but can remain on task.

(Id. at 608). At step four, the ALJ found that Plaintiff was unable to perform any past

relevant work. (Id. at 620).

At step five, the ALJ relied on the testimony of a vocational expert (“VE”) to

conclude that, considering Plaintiff’s age, education, work experience, and RFC, there

were jobs that exist in significant numbers in the national economy that Plaintiff could

perform, including the representative occupations of cashier II, information clerk, and

order clerk, food and beverage. (Id. at 620-23). Accordingly, the ALJ found that Plaintiff

was not disabled as defined in the Act. (Id. at 623-24).

II. The Commissioner’s Determination is Supported by Substantial Evidence and

Free from Legal Error

Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the

Commissioner. (Dkt. 9 at 25). Plaintiff raises seven arguments in support of his motion,

including: (1) the ALJ substituted her own judgment for that of competent medical opinion;

(2) the ALJ improperly assessed Plaintiff’s ability to maintain an acceptable work pace

and/or level of attendance; (3) the ALJ improperly assessed the opinions of Look Persaud,

M.D., the consultative examiner; (4) the ALJ made incorrect factual determinations,

“cherry picked” evidence, ignored the episodic nature of Plaintiff’s impairments, and

searched the record for grounds to deny benefits; (5) the ALJ failed to consult with a

medical expert in assessing Plaintiff’s RFC; (6) the ALJ improperly weighed the medical

opinions of Michael B. Lax, M.D. and Jacque Millar, N.P.; and (7) the ALJ’s step five

determination is not supported by substantial evidence. (Id. at 2). The Court has

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

without merit.

A. Assessment of Plaintiff’s RFC

Plaintiff’s first and fifth arguments challenge the ALJ’s assessment of the RFC as

not supported by medical opinion evidence. (See Dkt. 9 at 12-15 (contending that the ALJ

declined to adopt the limitations assessed by the workers’ compensation board, NP Millar,

Dr. Lax, Jennifer Hubbell, N.P., and Vidyasagar Mokureddy, M.D., and substituted her

own judgment in assessing the RFC); id. at 24 (“the ALJ does not cite a single medical

opinion that supports her RFC.”)). As explained below, Plaintiff’s arguments are without

merit.

In deciding a disability claim, an ALJ is tasked with “weigh[ing] 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). An ALJ’s conclusion need not “perfectly

correspond with any of the opinions of medical sources cited in his decision.” Id.

However, an ALJ is not a medical professional, and “is not qualified to assess a claimant’s

RFC on the basis of bare medical findings.” Ortiz v. Colvin, 298 F. Supp. 3d 581, 586

(W.D.N.Y. 2018) (quotation omitted). In other words:

An ALJ is prohibited from ‘playing doctor’ in the sense that ‘an ALJ may

not substitute his own judgment for competent medical opinion. . . . This

rule is most often employed in the context of the RFC determination when

the claimant argues either that the RFC is not supported by substantial

evidence or that the ALJ has erred by failing to develop the record with a

medical opinion on the RFC.

Quinto v. Berryhill, No. 3:17-cv-00024 (JCH), 2017 U.S. Dist. LEXIS 20030, at *36-37

(D. Conn. Dec. 1, 2017) (citations omitted). “[A]s a result[,] an ALJ’s determination of

RFC without a medical advisor’s assessment is not supported by substantial evidence.”

Dennis v. Colvin, 195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016) (quotation and citation

omitted).

The ALJ assessed an RFC limiting Plaintiff to light work with additional limitations,

including that Plaintiff can occasionally lift, carry, push or pull 10 pounds; frequently lift,

carry, push or pull less than 10 pounds; occasionally squat, kneel, crawl, climb stairs, or

twist; and requires a job that can be performed in a seated or standing position, but can

remain on task. (Dkt. 8 at 608). As the ALJ explained in the written determination, these

limitations are supported by specific medical opinion evidence in the record, including the

opinion offered by Dr. Persaud:

the exertional limitations identified by Dr. Persaud for moderate to marked

restrictions in the ability to lift, carry, push, or pull are reflected in the

residual functional capacity for lifting, carrying, pushing, or pulling no

greater than ten pounds on an occasional basis, with “occasional” defined as

occurring from very little up to one-third of the time, as well as lifting,

carrying, pushing, or pulling less than ten pounds on a frequent basis, with

“frequent” defined as occurring from one-third to two-thirds of the time.

Similarly, mild or moderate restrictions in squatting, kneeling, crawling,

climbing stairs, or twisting noted by Dr. Persaud are reflected in the residual

functional capacity for performing these activities on no more than an

occasional basis.

(Id. at 613). The ALJ’s assessment of Plaintiff’s ability to perform light work, with

additional limitations for performing certain activities on an occasional or frequent basis,

is consistent with Dr. Persaud’s opinion. See Carl D. v. Commissioner, No. 5:17-cv-

01114(TWD), 2019 WL 1115704, at *11 (N.D.N.Y. Mar. 11, 2019) (“moderate limitations

in lifting, bending, and reaching does not necessarily preclude the performance of light

work.”); Moxham v. Commissioner, No. 3:16-CV-1170(DJS), 2018 WL 1175210, at *8

(N.D.N.Y. Mar. 5, 2018) (marked limitations for squatting, lifting, and carrying, and mild

limitations for walking, standing, sitting, and bending are consistent with the ability to

perform light work); Renee v. Berryhill, No. 1:15-cv-00400(MAT), 2017 WL 6618737, at

*3 (W.D.N.Y. Dec. 27, 2017) (“a ‘moderate’ limitation in climbing, pushing, and pulling

is adequately accounted for in a finding that plaintiff can perform those activities only

occasionally.”). The ALJ further explained that “[t]he need for a job that can be performed

in a seated or standing position not identified by Dr. Persaud is supported in part by the

objective medical evidence and the claimant’s ongoing treatment for a combination of

physical impairments, including obesity.” (Dkt. 8 at 613). The ALJ discussed each of the

limitations included in the RFC, and identified specific medical evidence supporting each

limitation. Accordingly, Plaintiff’s argument that the RFC is not supported by medical

opinion evidence lacks support in the record.

To the extent Plaintiff believes that the RFC is not supported by substantial evidence

because the ALJ did not adopt all the limitations assessed by various medical professionals

in the record, (see Dkt. 9 at 13-14) she is mistaken. The ALJ must assess an RFC that is

consistent with the record as a whole, but it does not have to correspond with one particular

medical opinion. Matta, 508 F. App’x at 56. Here, the ALJ explained, in detail, her reasons

for affording the opinions offered by NP Millar, Dr. Lax, Jennifer Hubbell, N.P., and

Vidyasagar Mokureddy, M.D. only partial weight. (See Dkt. 8 at 615-16 (affording partial

weight to these providers because “they had the benefit of examining the claimant during

the period at issue,” but “are not entitled to greater weight because they are not well-

supported given the scant chronically positive objective clinical and laboratory findings

outlined above and are inconsistent with other substantial evidence.”)). Because their

opinions were not supported by other evidence in the record, the ALJ was not required to

adopt all the limitations assessed by these medical providers.

Plaintiff further contends that the ALJ erred by not finding Plaintiff “100%

disabled,” as she was found by Workers’ Compensation. (Dkt. 9 at 13-14). The ALJ gave

no weight to this determination, correctly explaining that “decisions rendered by the State

of New York Workers’ Compensation Board are not binding on the Commissioner in

determining the claims for Social Security benefits. Furthermore, the finding that the

claimant is ‘disabled’ or unable to work is an issue reserved to the Commissioner in

determining the claims for Social Security benefits.” (Dkt. 8 at 614); see also LaValley v.

Colvin, 672 F. App’x 129, 130 (2d Cir. 2017) (determination of whether a claimant is

“disabled” under the statute is a decision reserved to the Commissioner); Rosado v.

Shalala, 868 F. Supp. 471, 473 (E.D.N.Y. 1994) (“Although plaintiff’s doctors had

checked off that plaintiff was disabled on forms sent to the Workers’ Compensation Board,

the standards which regulate workers’ compensation relief are different from the

requirements which govern the award of disability insurance benefits under the Act.

Accordingly, an opinion rendered for purposes of workers’ compensation is not binding on

the Secretary.”).

Plaintiff also argues that the ALJ failed to develop the record by consulting with a

medical expert regarding the nature and severity of Plaintiff’s functional limitations. (Dkt.

9 at 23-34). Plaintiff refers to the December 2017 order of the Appeals Council, which

directed the ALJ to further consider the opinions offered by Dr. Persaud and NP Millar,

and “[i]f necessary,” to obtain evidence from a medical expert relating to the functional

limitations resulting from Plaintiff’s impairments. (See Dkt. 8 at 678). As explained

above, the written determination contains a lengthy discussion of the evidence offered by

Dr. Persaud and NP Millar. This discussion includes an explanation of the ALJ’s decision

to adopt limitations assessed by Dr. Persaud for Plaintiff’s ability to lift, carry, push, pull,

bend, squat, kneel, and crawl, in compliance with the Appeals Council’s order. (See id. at

676-77).

The ALJ explained that she took steps to collect additional medical opinion

evidence. For example, prior to the August 2018 hearing, the ALJ asked Plaintiff’s

attorney “to submit all other evidence that would support the claim, including updated

medical evidence, other evidence from all sources, and any available assessments of

residual functional capacity,” as well as to “contact all practitioner(s) who provided a

medical source statement and obtain clarification, including on the issues of off-task

behavior and absenteeism.” (Id. at 599). Plaintiff’s attorney requested a supplemental

hearing, but Plaintiff’s medical sources did not provide clarification of their opinions on

off-task behavior and excessive absences. (Id.). Further, Plaintiff’s attorney represented

that the record was complete at the August 2018 hearing. (Id. at 600). The ALJ further

explained that she elected not to call an additional medical expert as that decision was at

her discretion, and she found that the record was “complete and [did] not warrant the use

of additional medical expert opinion and additional consultative examination given the

objective medical evidence and claimant’s engagement in a range of activities that require

significant physical demands.” (Id. at 619). Here, the record contains several medical

opinions from both treating and non-treating sources. As explained above, the RFC is

directly supported by opinion evidence already in the record, including the opinion offered

by Dr. Persaud. Accordingly, it was proper for the ALJ to exercise her discretion and

determine that it was not necessary to obtain additional opinion evidence. See Janes v.

Berryhill, 710 F. App’x 33, 34 (2d Cir. 2018) (“The ALJ is not required to develop the

record any further when the evidence already presented is ‘adequate for [the ALJ] to make

a determination as to disability.’”) (quoting Perez, 77 F.3d at 48) (alteration in original).

The Court has reviewed the written determination, the assessed RFC, and the medical

evidence, including the opinion offered by Dr. Persaud, and finds that the RFC is well-

supported by the medical record. Remand is not required on this basis.

B. Plaintiff’s Ability to Maintain Work Pace and/or Attendance

Plaintiff next argues that the ALJ improperly rejected opinion evidence that Plaintiff

is unable to maintain acceptable levels of work pace and/or attendance. Plaintiff contends

that it was improper for the ALJ to reject this evidence as pre-dating Plaintiff’s disability

application, and as contradicted by her prior work, daily activities, and negative clinical

findings. (Dkt. 9 at 15-16). Defendant responds that the ALJ considered Plaintiff’s ability

to meet pace and attendance demands, but the evidence of record did not demonstrate that

Plaintiff would need extra breaks or would be off-task. (Dkt. 14-1 at 20-21).

The written determination contains a discussion of reports offered in April 2014 and

July 2015 by Dr. Lax and NP Millar that Plaintiff would be off-task more than 33 percent

of the workday and have more than four absences from work per month. (Dkt. 8 at 615).

The ALJ also discussed reports by Dr. Mokureddy, NP Hubbell, and Jill Reidy, N.P., in

June 2015 or June 2018, which included significant off-task behavior and excessive

absences. (Id.). Following the discussion of this evidence, the ALJ explained that the

record did not support frequent, unscheduled breaks, excessive absenteeism, or tardiness.

(Id. at 618). Specifically, the ALJ noted that Plaintiff’s “prior problems with attending

work do not represent the maximum residual functional capacity as they predate the period

at issue,” or “the work involved greater physical demands than are contemplated in this

case.” (Id.). Further, the ALJ explained that “[t]he claimant’s allegations of off-task

behavior due to pain and side-effects of medications are not supported by the various exams

that show that claimant appears awake/alert and in no acute distress[.]” (Id.). Regarding

Plaintiff’s need to take unscheduled breaks, the ALJ explained that “[t]he need for

resting/reclining for up to four hours per day and difficulty getting out of bed five days per

month are not supported by the lack of muscle atrophy affecting the claimant’s upper and

lower extremities.” (Id.). Finally, regarding Plaintiff’s ability to maintain regular work

attendance, the ALJ noted that “[a]lthough there are periodic gaps in treatment or cancelled

medical appointments, the claimant was able to attend other scheduled appointments

without difficulty . . . that fail to support frequent absences from work.” (Id.). The ALJ

concluded that “[t]he need to periodically change positions outside of the residual

functional capacity could be accommodated by regular breaks during a typical 8-hour

workday, 40-hour work week, or equivalent schedule.” (Id.). In other words, the ALJ

found that other evidence in the record – both reports by Plaintiff, and objective medical

evidence – did not support the assessed limitations for time off-task and absenteeism.

The Court has reviewed the opinions regarding Plaintiff’s ability to stay on task and

maintain regular attendance. (See Dkt. 8 at 507-08, 590-91, 594-95, 964-65). Based on

the lengthy explanation contained in the written determination, it is clear that the ALJ

adequately considered Plaintiff’s ability to maintain work pace and attendance. The ALJ

also pointed to specific evidence in the record supporting her conclusion that Plaintiff does

not require additional accommodation in those areas, beyond her need for a job that can be

performed in a seated or standing position. (See Dkt. 8 at 610 (despite her report that she

uses a motorized cart when she grocery shops, Plaintiff does not use a cane, walker,

wheelchair, or other assistive device for support when ambulating on a regular and

continuing basis); id. at 611 (Plaintiff’s reports of difficulty sleeping and daytime fatigue

that may lead to frequent absences from work or significant off-task behavior appear

overstated, for reasons including: the notations made by Plaintiff’s own medical sources of

drowsiness and fatigue as side effects of medications are not seen in other records; Plaintiff

at times denied side effects of medications and difficulty sleeping; beyond nighttime doses

of a normal medication regimen, there are no specific attempts by medical sources to

evaluate or treat Plaintiff’s alleged chronic fatigue; and Plaintiff’s complaints of chronic

sleep problems are not supported by notations in the medical record that she appeared

awake and/or alert); id. at 490-91 (report of June 2013 consultative examination by Sara

Long, Ph.D., noting that Plaintiff was well-oriented and had good attention and

concentration, and opining that Plaintiff is “able to maintain attention and concentration

and is able to maintain a regular schedule.”); id. at 616 (noting that “specific requests for

clarifications of the off-task behavior and excessive absences [opined by Plaintiff’s medical

providers] were returned by the claimant’s medical sources restating the prior limitations

without any further analysis or explanation. Instead, the limitations provided by the

claimant’s own medical sources appear to be based primarily on the claimant’s subjective

self-reports of symptoms and functional limitations that are inconsistent with the

evidence[.]”)).

The ALJ adequately explained her reasoning for not incorporating any additional

limitations in the RFC, and her conclusions are well-supported by the record. Accordingly,

the ALJ did not err in assessing Plaintiff’s ability to maintain acceptable levels of work

pace and attendance. See Christina M. v. Saul, No. 3:18-CV-0332 (CFH), 2019 WL

3321891, at *6 (N.D.N.Y. July 24, 2019) (“although Plaintiff maintains that undisputed

medical opinion established that she has moderate or greater limitations in work pace

and/or attendance, interacting with the general public, accepting instructions, and

responding appropriately to criticism from supervisors, the Court’s review of the ALJ’s

decision and of the record does not support these arguments. The ALJ’s decision indicates

that she fully reviewed and discussed the evidence before him in reaching Plaintiff’s RFC,

implicitly indicating greater limitations in these areas were not warranted by that

evidence.”); Bembridge v. Commissioner, No. 3:15-CV-745 (DNH/ATB), 2016 WL

3777739, at *9 (N.D.N.Y. May 16, 2016) (ALJ did not err in rejecting opinion evidence

regarding the plaintiff’s ability to maintain concentration, work pace, and attendance, as

the ALJ found the opinions to be speculative and not supported by the record), adopted,

2016 WL 3822763 (N.D.N.Y. July 12, 2016). The Court has reviewed the written

determination, as well as the evidence discussed by the ALJ, and finds that her conclusions

regarding Plaintiff’s ability to maintain work pace and attendance are supported by

substantial evidence. Remand is not required on this basis.

C. Evaluation of Dr. Persaud’s Opinion

Plaintiff next argues that the ALJ improperly assessed opinion evidence offered by

Dr. Persaud. (Dkt. 9 at 17). Specifically, Plaintiff contends that Dr. Persaud’s opinion

does not support the assessed RFC and is vague. (See id. at 18 (“The question here is –

what forms the ALJ’s conclusion that Dr. Persaud’s opinion equates with the ability to

frequently lift, carry, push and pull less than ten pounds, and occasionally lift, carry, push

and pull up to ten pounds? Dr. Persaud never said any such thing. Rather, he used the

vague terms ‘moderate to marked,’ which . . . without more, are insufficient [t]o support

an ALJ’s RFC determination.”)).

As explained at Section II(A) of this Decision and Order, the RFC is directly

supported by opinion evidence offered by Dr. Persaud. Further, the opinions offered by

Dr. Persaud are not vague because they were based on an in-person consultative

examination (see Dkt. 8 at 484-88) and are well-supported by the record. With regard to

her reliance on Dr. Persaud’s opinion, the ALJ explained:

Although Dr. Persaud did not specifically define the terms “moderate” and

“moderate to marked,” there is nothing particularly vague about this medical

opinion that would require clarification given the few chronically positive

objective clinical findings noted on physical exams conducted by Dr. Persaud

that are generally consistent with similar exams noted by various other

medical sources.

(Id. at 619). The Court has reviewed Dr. Persaud’s opinion. On June 19, 2013, Dr. Persaud

offered the following medical source statement:

Based on today’s evaluation, there are no restrictions to sitting, standing, and

walking on even surfaces. Mild restriction to walking on uneven terrain, up

inclines, ramps, and stairs. Moderate restriction from squatting, kneeling,

and crawling. Moderate restriction for bending, mild for twisting and

turning. No restriction for reaching overhead and in all other planes. No

restriction for fine motor activity of hands. She has moderate to marked

restriction for lifting, carrying, pushing, and pulling due to her back and right

knee. No restriction to speaking, seeing, and hearing. She is able to travel

via public transportation.

(Id. at 487-88). The Court finds that Dr. Persaud’s use of the terms “mild,” “moderate,”

and “marked,” are not vague under the circumstances. Dr. Persaud conducted a thorough,

in-person physical examination of Plaintiff. His report includes a summary of his

examination findings, as well as a recitation of Plaintiff’s medical history, medications,

and activities of daily living. Accordingly, Dr. Persaud’s use of the terms “mild,”

“moderate,” and “marked,” do not render his opinion vague. See Taylor v. Commissioner,

No. 17-CV-1011-MJR, 2019 WL 457718, at *4 (W.D.N.Y. Feb. 6, 2019) (while the

doctor’s use of the term “‘moderate’ could constitute vagueness,” explaining that the

“opinion of ‘moderate’ limitations does not stand alone. It is based on the objective MRI

results and the in-person physical examination of the Plaintiff.”); Caci v. Colvin, No. 5:14-

CV-01407, 2015 WL 9997202, at *10 (N.D.N.Y. Dec. 22, 2015) (ALJ’s reliance on

opinion that the plaintiff had “moderate to severe” limitations for standing, walking, and

climbing was proper, because the doctor’s opinions were supported by her thorough

examination of the plaintiff), adopted, 2016 WL 427098 (N.D.N.Y. Feb. 3, 2016).

Accordingly, the ALJ’s reliance on Dr. Persaud’s opinion was proper. Remand is not

required on this basis.

D. Evaluation of Evidence

Plaintiff next makes the general argument that the ALJ made numerous incorrect

factual determinations, cherry picked evidence, ignored the episodic nature of Plaintiff’s

impairments, and searched the record for grounds to deny benefits. (Dkt. 9 at 20). Plaintiff

disagrees with the following findings by the ALJ: Plaintiff had an overall positive response

to conservative treatment; her symptoms were controlled with medications; Plaintiff was

not recommended for surgical intervention; she changed her address from Elmira, New

York, to Pine City, New York; “not all” of Plaintiff’s examinations showed positive clinical

findings; and Plaintiff’s ability to perform some physical and daily activities is consistent

with the ability to do light work. (Id. at 20-23). Plaintiff states that the ALJ ignored

evidence in the record contradicting these findings. (Id. at 20).

“The ALJ is not required to specifically discuss each piece of evidence considered.”

Schlichting v. Astrue, 11 F. Supp. 3d 190, 208 (N.D.N.Y. 2012); see also Barringer v.

Commissioner, 358 F. Supp. 2d 67, 78-79 (N.D.N.Y. 2005) (an ALJ is not required to

“mention or discuss every single piece of evidence in the record,” and although the ALJ is

“required to develop the record fully and fairly, an ALJ is not required to discuss all the

evidence submitted, and [his] failure to cite specific evidence does not indicate that it was

not considered.”) (internal quotations and citations omitted) (alteration in original). Rather,

an ALJ is tasked with “weigh[ing] all of the evidence available to make an RFC finding

that [is] consistent with the record as a whole.” Matta, 508 F. App’x at 56. The Court has

reviewed the transcript and concludes that the ALJ did not misrepresent factual

information. Rather, the ALJ’s thorough, 26-page written determination shows that she

carefully considered all the evidence in the record, including evidence weighing in

Plaintiff’s favor. (See, e.g., Dkt. 8 at 609 (discussing Plaintiff’s testimony that she is totally

disabled, has severe pain in her back that radiates to her extremities, has difficultly

performing various physical tasks, and needs to take frequent breaks); id. at 611 (discussing

Plaintiff’s report of chronic sleep problems); id. at 613-14 (acknowledging that Plaintiff

had some positive laboratory findings, including decreased strength and weakness and

some positive straight leg raise tests)). The ALJ did not misrepresent or ignore this

evidence; rather, she explained that she found some of this evidence to be unsupported or

accounted for by the RFC. Accordingly, Plaintiff’s contention that the ALJ “cherry

picked” evidence is not supported by the record. See Barringer, 358 F. Supp. 2d at 79

(“the ALJ’s decision . . . contains ample reference to all the medical sources. Thus, a

conclusion that the ALJ did not consider all the evidence or that he selectively excluded

objective findings is unwarranted.”).

Plaintiff argues that the ALJ erred by considering Plaintiff’s ability to perform

certain physical and daily activities, because Plaintiff’s ability to perform daily activities

does not equate to her ability to perform light work. (Dkt. 9 at 22-23). Plaintiff’s argument

is misplaced. “The issue is not whether Plaintiff’s limited ability to undertake normal daily

activities demonstrates her ability to work. Rather, the issue is whether the ALJ properly

discounted Plaintiff’s testimony regarding her symptoms to the extent that it is inconsistent

with other evidence.” Morris v. Commissioner, No. 5:12-cv-1795 (MAD/CFH), 2014 WL

1451996, at *8 (N.D.N.Y. Apr. 14, 2014). Here, the ALJ considered Plaintiff’s ability to

perform certain activities in assessing the credibility of her testimony regarding her

physical and mental limitations. (See, e.g., Dkt. 8 at 609-17 (explaining that “the

claimant’s statements concerning the intensity, persistence and limiting effects of [her]

symptoms are not entirely consistent with the medical evidence and other evidence in the

record for the reasons explained in this decision,” and discussing Plaintiff’s physical

activities and activities of daily living, which contradicted her claim that she was unable to

work)). This was proper. See Lamorey v. Barnhart, 158 F. App’x 361, 363 (2d Cir. 2006)

(“it is entirely appropriate for an ALJ to consider a claimant’s daily activities in assessing

her credibility and capacity to perform work-related activities.”); Lesanti v. Commissioner,

No. 1:19-CV-00121 EAW, 2020 WL 500986, at *8 (W.D.N.Y. Jan. 30, 2020) (“SSR 16-

3p expressly permits an ALJ to consider Plaintiff’s daily activities, among other factors, in

assessing the credibility of Plaintiff’s subjective complaints.”); Killings v. Commissioner,

No. 15 Civ. 8092 (AT) (JCF), 2016 WL 4989943, at *14 (S.D.N.Y. Sept. 16, 2016) (the

ALJ properly considered that the plaintiff took her six-year-old child to school, drove, did

some chores, and socialized with friends in assessing the plaintiff’s credibility). Remand

is not required on this basis.

E. Weighing of Dr. Lax’s Opinion

Plaintiff also argues that the ALJ improperly weighed the opinion of Dr. Lax,

Plaintiff’s treating physician. (Dkt. 9 at 24-25). Plaintiff does not identify which portions

of Dr. Lax’s opinion she believes are entitled to more weight, but argues that the opinions

offered by Dr. Lax and NP Millar are entitled to more than “partial” or “no weight” because

they performed numerous examinations, they had an ongoing treatment relationship with

Plaintiff, their opinions are supported by clinical findings, and their opinions are consistent

with those of other treating providers. (Id. at 24).

Because Plaintiff’s claim was filed before March 27, 2017, the ALJ was required to

apply the treating physician rule, under which a treating physician’s opinion is entitled to

“controlling weight” when it is “well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial evidence

in [the] case record[.]” 20 C.F.R. § 404.1527(c)(2). Under the treating physician rule, if

the ALJ declines to afford controlling weight to a treating physician’s medical opinion, he

or she “must consider various factors to determine how much weight to give to the

opinion.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (internal quotation marks

omitted). These factors include:

(i) the frequency of examination and the length, nature and extent of the

treatment relationship; (ii) the evidence in support of the treating 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.

Id. “An ALJ does not have to explicitly walk through these factors, so long as the Court

can conclude that the ALJ applied the substance of the treating physician rule[.]” Scitney

v. Colvin, 41 F. Supp. 3d 289, 301 (W.D.N.Y. 2014) (internal quotation omitted).

Whatever weight the ALJ assigns to the treating physician’s opinion, he must “give

good reasons in [his] notice of determination or decision for the weight [he gives to the]

treating source’s medical opinion.” 20 C.F.R. § 404.1527 (c)(2); see also Harris v. Colvin,

149 F. Supp. 3d 435, 441 (W.D.N.Y. 2016) (“A corollary to the treating physician rule is

the so-called ‘good reasons rule,’ which is based on the regulations specifying that ‘the

Commissioner “will always give good reasons”’ for the weight given to a treating source

opinion.” (quoting Halloran, 362 F.3d at 32)). “Those good reasons must be supported by

the evidence in the case record, and must be sufficiently specific . . . .” Harris, 149 F.

Supp. 3d at 441 (internal quotation marks omitted). The Second Circuit “[does] not hesitate

to remand when the Commissioner’s decision has not provided ‘good reasons’ for the

weight given to a [treating physician’s] opinion and [it] will continue remanding when [it]

encounter[s] opinions from [ALJs] that do not comprehensively set forth reasons for the

weight assigned to a treating physician’s opinion.” Halloran, 362 F.3d at 33.

The ALJ explained her weighing of opinion evidence offered by Dr. Lax and NP

Millar:

Partial weight is accorded to the medical opinions/assessments of the

claimant’s occupational medicine specialist, Michael B. Lax, M.D. . . . and

Jacque Millar, N.P., because they had the benefit of examining the claimant

during the period at issue before the undersigned. In reports from April 2014

and July 2015, Dr. Lax and/or Mr. Millar identified greater exertional and

non-exertional limitations than are adopted in this case, including sitting for

no more than four hours in an eight-hour workday; standing or walking no

more than two hours in an eight-hour workday; inability to lift greater than

five pounds occasionally; off-task behavior greater than 33% of the workday;

and more than four absences from work per month (Exhibits B17F and

B27F). In November 2014, Dr. Lax and Mr. Millar indicated that the

claimant’s condition worsened with more severe limitations (Exhibit B22F,

p. 2). At other times, Mr. Millar recommended that the claimant can engage

in activity only as tolerated and should avoid aggravating activities (See, e.g.,

Exhibits B16F, p. 1; and B20F, p. 8).

(Dkt. 8 at 615). The ALJ concluded that these assessments were entitled to only “partial

weight,” as “they are not well-supported given the scant chronically positive objective

clinical and laboratory findings outlined above and are inconsistent with other substantial

evidence.” (Id.). The ALJ then cited to specific evidence in the record contradicting Dr.

Lax’s and NP Millar’s assessments, including that the findings of their examinations of

Plaintiff were inconsistent, and the assessed limitations appeared be based on Plaintiff’s

subjective self-reports. (Id. at 615-16); see also id. at 405-09, 410-13, 415-17, 418-21

(documenting mostly normal physical examinations of Plaintiff, but opining that Plaintiff

is “100%” impaired). As explained by the ALJ, Plaintiff’s reports regarding the severity

of her impairments appear to be supported by little more than her own subjective reports.

See Mauro v. Commissioner, 746 F. App’x 83, 84 (2d Cir. 2019) (“subjective complaints

alone are not a basis for an award of disability insurance benefits in the absence of

corroborating objective medical evidence.”).

It is clear from the written determination that the ALJ considered the time period

over which Plaintiff received treatment from Dr. Lax and NP Millar, as well as Dr. Lax’s

specialty, as required by the treating physician rule. Further, the ALJ’s reasons for

affording less weight to these opinions are proper considerations for evaluating a medical

opinion, including the opinion of a treating physician. See Fazio v. Commissioner, 408 F.

Supp. 3d 240, 246 (E.D.N.Y. 2019) (“[T]he ALJ may set aside the opinion of a treating

physician that is contradicted by the weight of other record evidence. A treating

physician’s opinion may also be rejected if it is internally inconsistent or otherwise

uninformative.”) (citations omitted) (alteration in original). Accordingly, the ALJ

complied with the treating physician rule in evaluating the evidence offered by Dr. Lax and

NP Millar, and her conclusions are well-supported by the record. Remand is not required

on this basis.

F. The Step Five Determination

Plaintiff’s seventh and final argument is that the ALJ’s step five determination is

not supported by substantial evidence, because she relied on the opinion of the vocational

expert. (Dkt. 9 at 25). Specifically, Plaintiff argues that “[t]he hypothetical given to the

[vocational expert] mirrored the ALJ’s RFC,” and “[f]or the reasons set forth above, the

RFC does not properly account for Plaintiff’s limitations.” (Id.). In response, Defendant

contends that because Plaintiff has failed to show any genuine defect in the RFC finding,

her argument regarding the hypothetical question should fail. (Dkt. 14-1 at 23).

At step five of the sequential analysis, the ALJ relied on the testimony of the

vocational expert to determinate that, based on her RFC, Plaintiff could perform the

representative occupations of cashier II, information clerk, and order clerk. (Dkt. 8 at 621).

Plaintiff concedes that Plaintiff’s assessed RFC, and the hypothetical given to the ALJ, are

the same. (See Dkt. 9 at 25; see also Dkt. 8 at 640-64). As explained above, the assessed

RFC is adequately explained and well-supported by the medical record. Accordingly, the

ALJ’s step five determination is supported by substantial evidence. See McIntyre v. Colvin,

758 F.3d 146, 151 (2d Cir. 2014) (“An ALJ may rely on a vocational expert’s testimony

regarding a hypothetical as long as there is substantial record evidence to support the

assumption[s] upon which the vocational expert based his opinion, and accurately reflect

the limitations and capabilities of the claimant involved.”) (internal quotations and citations

omitted) (alteration in original). Remand is not required on this basis.

CONCLUSION

In sum, the ALJ’s 26-page written determination is well-supported by the record.

The ALJ discussed the evidence supporting the assessed RFC, and her reasons for adopting

or rejecting certain opinion evidence, such that the Court may meaningfully review the

decision. For the foregoing reasons, the Commissioner’s motion for judgment on the

pleadings (Dkt. 14) is granted, and Plaintiff’s motion for judgment on the pleadings

(Dkt. 9) is denied. The Clerk of Court is directed to enter judgment and close this case.

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

United States District Judge

Dated: March 25, 2020

Rochester, New York