# Lewis v. Commissioner of Social Security

> District Court, W.D. New York · November 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10363046

## Case

- **Court:** District Court, W.D. New York
- **Decided:** November 23, 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/10363046

## How later opinions describe it (automated extraction)

- holding that it is proper for an ALJ to cite a claimant’s conservative treatment history to support his conclusion that he or she is not disabled

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TERESA L., §
§
Plaintiff, §
§
v. § Case # 1:19-CV-682-DB
§
COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION
§ AND ORDER
Defendant. §

INTRODUCTION

Plaintiff Theresa L. (“Plaintiff”) brings this action pursuant to the Social Security Act (the
“Act”), seeking review of the final decision of the Commissioner of Social Security (the
“Commissioner”) that denied her application for supplemental security income (“SSI”) under Title
XVI of the Act. See ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§
405(g), 1383(c), and the parties consented to proceed before the undersigned in accordance with a
standing order (see ECF No. 17).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). See ECF Nos. 10, 15. Plaintiff also filed a reply. See ECF No. 16. For the reasons
set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 10) is DENIED, and
the Commissioner’s motion for judgment on the pleadings (ECF No. 15) is GRANTED.
BACKGROUND
On October 16, 2015, Plaintiff protectively filed an application for SSI, alleging disability
beginning January 5, 2015 (the disability onset date), due to a back injury, shoulder injury, and
neck injury. Transcript (“Tr.”) 141-46. Plaintiff’s claim was denied initially on February 17, 2016
(Tr. 80-83), after which she requested a hearing (Tr. 84-86). On April 11, 2018, Administrative
Law Judge Lynette Gohr (the “ALJ”) presided over a hearing in Buffalo, New York. Tr. 10, 28-
69. Plaintiff appeared and testified at the hearing and was represented by Jeanne Murray, an
attorney. Tr. 10. Jay Steinbrenner, an impartial vocational expert (“VE”), also appeared and
testified at the hearing. Id.
The ALJ issued an unfavorable decision on May 22, 2018, finding that Plaintiff was not

disabled. Tr. 10-23. On March 28, 2019, the Appeals Council denied Plaintiff’s request for further
review. Tr. 1-6. The ALJ’s May 22, 2018 decision thus became the “final decision” of the
Commissioner subject to judicial review under 42 U.S.C. § 405(g).
LEGAL STANDARD
I. District Court Review
“In reviewing a final decision of the 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) (citing 42 U.S.C. §
405(g)) (other citation omitted). The Act holds that the Commissioner’s decision 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) (citations
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. 1990).
II. The Sequential Evaluation Process
An ALJ must follow 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 must determine whether the claimant is engaged in substantial gainful
work activity. See 20 C.F.R. § 404.1520(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, meaning that it imposes significant
restrictions on the claimant’s ability to perform basic work activities. Id. § 404.1520(c). If the
claimant does not have a severe impairment or combination of impairments meeting the durational

requirements, the analysis concludes with a finding of “not disabled.” If the claimant does, 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). If the impairment meets or medically equals the criteria of a Listing
and meets the durational requirement, the claimant is disabled. Id. § 404.1509. If not, the ALJ
determines the claimant’s residual functional capacity, 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)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits

him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. Id. 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). 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 his or her age, education, and work experience. See Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).
ADMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ analyzed Plaintiff’s claim for benefits under the process described above and
made the following findings in her May 22, 2018 decision:
1. The claimant has not engaged in substantial gainful activity since October 16, 2015, the
application date (20 CFR 416.971 et seq.);
2. The claimant has the following severe impairments: left knee degenerative joint disease—
status post August 2015 arthroscopic surgery, left shoulder degenerative joint disease with
rotator cuff tear and impingement, degenerative disc disease of the cervical, lumbar, and
thoracic spine, and obesity (20 CFR 416.920(c));
3. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926);
4. The claimant has the residual functional capacity to perform less than the full range of light
work as defined in 20 CFR 404.1567(b),1 because she is able to lift and/or carry ten pounds
occasionally and less than ten pounds frequently, stand and/or walk for six hours in an
eight-hour workday, and sit for six hours in an eight-hour workday. After sitting or standing
for sixty minutes, the claimant must change position for five minutes (she will be off task
for those five-minute position changes). The claimant is unable to climb ladders, ropes,
and scaffolds, but she is occasionally able to stoop, kneel, crouch, crawl, and climb ramps
and stairs. Although the claimant is unable to reach overhead with the non-dominant left
upper extremity, she is frequently able to reach in all other directions with the non-
dominant left upper extremity. The claimant is frequently able to reach in all directions
with the dominant right upper extremity. The claimant is able to occasionally finger and
handle with the non-dominant left upper extremity;
5. The claimant is capable of performing past relevant work as a teacher’s aide; this work
does not require the performance of work-related activities precluded by the claimant’s
residual functional capacity (20 CFR 416.965);
6. The claimant has not been under a disability, as defined in the Social Security Act, since
October 16, 2015, the date the application was filed (20 CFR 416.920(g)).
Tr. 10-23.

1 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the
ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or she
can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.” 20 C.F.R. § 404.1567(b).
Accordingly, the ALJ determined that, based on the application for supplemental security
benefits filed on October 16, 2015, the claimant is not disabled under section 1614(a)(3)(A) of
the Act. Tr. 24.
ANALYSIS

Plaintiff asserts two points of error, both of which challenge the ALJ’s weighing of the
medical opinion evidence. First, Plaintiff argues that the ALJ failed to provide good reasons for
affording little weight to the treating source opinion of Rodrigo Castro, D.O. (“Dr. Castro”). See
ECF No. 10-1 at 10-25. Plaintiff also takes issue with the weights assigned to the remaining
medical opinions, arguing that the ALJ did not provide an adequate explanation of why she chose
some parts of these opinions, and rejected others, in formulating Plaintiff’s RFC. See id. at 15-20.
The Commissioner responds that the ALJ reasonably weighed the medical opinion
evidence, including the opinions of Dr. Castro and the other opinions of record, and the
Commissioner’s findings in this case were supported by substantial evidence. See ECF No. 15-1
at 9-16. A Commissioner’s determination that a claimant is not disabled will be set aside when the

factual findings are not supported by “substantial evidence.” 42 U.S.C. § 405(g); see also Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir.2000). Substantial evidence has been interpreted to mean “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The
Court may also set aside the Commissioner’s decision when it is based upon legal error. Rosa, 168
F.3d at 77.
Upon review of the extensive record in this case, the Court finds that the ALJ thoroughly
considered the evidence of record, including the medical opinion evidence and other objective
medical evidence, Plaintiff’s mostly conservative treatment, and her fairly extensive activities of
daily living, and properly formulated Plaintiff’s RFC based on the record as a whole. Accordingly,
the ALJ properly concluded that Plaintiff retained the capacity to perform a range of light work.
Plaintiff sustained a work injury in January 2015, after she tripped over a wire and landed
on her left knee, injuring her knee and back. Tr. 273. Graham Huckell, M.D. (“Dr. Huckell”), of

Pinnacle Orthopedic & Spine Specialists (“Pinnacle Orthopedics”) performed a left knee
arthroscopy with partial medial meniscectomy in August 2015. Tr. 314.
On October 6, 2015, Plaintiff was seen by neurologist Alexander Rovner, M.D. (“Dr.
Rovner”), for continuing pain related to her injury. Tr. 253. Dr. Rovner noted that Plaintiff
exhibited L4-5 and L5-S1 radiculopathy; what appeared to be a meniscal injury on the left; cervical
radiculopathy at C5-6 and C6-7; and possible left shoulder injury. Tr. 255. EMG nerve testing
showed evidence of moderate degree of radiculopathy at L4, L5, and L5-S1. Tr. 256. Dr. Rovner
noted that Plaintiff was doing better from the standpoint of her left knee after surgical intervention.
Tr. 256. He prescribed Norco, Naproxen, and Nucinta. Tr. 256. Plaintiff continued to have left
knee pain, low back pain, and worsening left shoulder pain in January 2016. Tr. 336. Plaintiff had

received a steroid injection in her shoulder that did not “make much of a difference.” Tr. 337. Dr.
Rovner noted that Plaintiff’s condition had worsened since her insurance stopped covering
chiropractic care. Tr. 337, 339. Plaintiff continued treatment with Dr. Rovner through February
2017 and was prescribed Norco, Flexeril, Nucinta, Butrans patch, and Cymbalta. Tr. 2758-2842.
Ultimately, Dr. Rovner referred Plaintiff for long-term pain management treatment. Tr. 2841.
Plaintiff was also treated by orthopedic surgeon Ross Sherban, D.O. (“Dr. Sherban”), of
Sherban Orthopaedics and Spine Surgery, PLLC (“Sherban Orthopedics”), for pain in her neck,
mid, and lower back. Tr. 427. On October 30, 2015, Plaintiff reported pain of 8/10, that was
aggravated by activity. Tr. 427. Upon examination, Dr. Sherban noted that Plaintiff stood with a
forward flexed posture and ambulated with an antalgic gait, and she had moderate tenderness over
the cervical, thoracic, and lumbar regions. Tr. 428. Plaintiff also had reduced range of motion
secondary to pain; abnormal sensory exam on the left at L3, L5, S1, and C7; and reduced strength
on the left. Tr. 429). Dr. Sherban diagnosed Plaintiff with “degenerative disease at C6-7 as well as

multiple levels and thoracic spine in addition to scoliosis” and administered trigger point injections
Tr. 430.
In December 2015, Plaintiff began treatment for her left shoulder injury with orthopedist
A. Marc Tetro, M.D. (“Dr. Tetro”), of Pinnacle Orthopedics. Tr. 441. Dr. Tetro diagnosed Plaintiff
with left shoulder rotator cuff tendinitis/impingement syndrome; left shoulder partial thickness
rotator cuff tear; left shoulder post traumatic AC joint arthrosis; and cervical origin of pain. Tr.
443. He opined that Plaintiff is able to work in a restricted light duty capacity with restrictions in
repetitive overhead reaching or lifting with the left arm and no lifting over ten pounds with the left
arm. Tr. 445.
On February 5, 2016, Donna Miller, D.O. (“Dr. Miller”), conducted a consultative internal

medicine examination at the request of the agency. Tr. 519. Dr. Miller opined that Plaintiff had
mild to moderate limitation for heavy lifting, bending, carrying, reaching, pushing, and pulling.
Tr. 522.
On April 19, 2016, Plaintiff underwent an independent medical examination performed by
Robert Bauer, M.D. (“Dr. Bauer”). Tr. 2682. Dr. Bauer diagnosed Plaintiff with thoracic strain;
lumbar disc degeneration/herniation; radiculopathy; left shoulder impingement with possible tear;
and left torn medial meniscus with arthroscopic surgery. Tr. 2685. He opined that Plaintiff could
return to work with restrictions allowing her an occasional five-pound weightlifting restriction;
she should refrain from any crawling, kneeling, running, repetitive pushing, pulling, or overhead
lifting with the left arm and shoulder; and she should refrain from any repetitive twisting, turning,
or bending with her lumbar spine and torso. Tr. 2686.
On April 27, 2016, Plaintiff underwent an independent medical examination (“IME”) with
pain management specialist John Orsini, M.D. (“Dr. Orsini”). Tr. 2648. Dr. Orsini assessed

Plaintiff with left knee contusion, lumbar strain injury, and onset of neck pain not causally related
to Plaintiff’s work injury. Tr. 2652. He opined that Plaintiff has a mild degree of disability and
stated, “I think work duties are possible with lifting limited to 40 pounds, and the need to sit or
stand somewhat limited, one hour maximum, requiring 5-minute break, total of 4 hours per day,
standing or walking.” Tr. 2652.
In June 2017, Dr. Bauer opined in another IME report that Plaintiff could: work with
restrictions, allowing her an occasional five-pound weightlifting restriction. Tr. 2146. He stated
she should also refrain from any lengthy walking, repetitive stair climbing, crawling, kneeling,
running; any repetitive pushing, pulling, overhead lifting left arm and shoulder; and any repetitive
twisting, turning, bending with her cervical spine, lumbar spine; and she should change her

positions frequently for comfort. Id.
From March 2017 to August 2017, Plaintiff was treated by Dr. Castro for ongoing
symptoms related to her work injury. Tr. 529, 578-603. Although Dr. Castro is associated with
Sherban Orthopedics, the office letterhead indicates he is board certified by the American
Academy of Family Physicians. Tr. 529. Plaintiff reported that pain in her neck, lower back, and
left shoulder had been getting progressively worse. Tr. 529. She was no longer receiving
medication from Dr. Rovner, but she was receiving temporary relief from her lumbar pain with
chiropractic treatment. Tr. 530. Upon examination, Plaintiff stood with a forward flexed posture
and ambulated with an antalgic gait; and she had abnormal sensation on the left at L3, L5, S1, and
C7 and reduced strength on the left lower extremity. Tr. 531. Plaintiff underwent a left sided
transforaminal epidural steroid injection. Tr. 533. Dr. Castro prescribed Meloxicam, Zanaflex, and
Lidoderm patches. Tr. 582. Dr. Castro noted that Plaintiff was scheduled for shoulder surgery in
December 2017 with Dr. Tetro. Tr. 662.

Plaintiff returned to Dr. Tetro in September 2017 and November 2017 for her left shoulder
injury. Tr. 1810, 1858. He noted that Plaintiff had “persistent and recalcitrant left shoulder pain
and discomfort which unfortunately has failed all forms of nonsurgical treatment. After reviewing
Plaintiff’s treatment options and explaining the advantages and disadvantages of various treatment
modalities, Plaintiff elected to proceed with surgery. Tr. 1812-13. However, the record contains
no further references to Plaintiff having shoulder surgery; thus, the record is unclear as to whether
the recommended surgery was actually performed.
As noted above, Plaintiff argues that the ALJ failed to give good reasons for rejecting Dr.
Castro’s treating source opinion. See ECF No. 10-1 at 10-15. Plaintiff also argues that the ALJ
failed to explain how she used the remaining opinions—specifically the opinions of Dr. Miller,

Dr. Tetro, Dr. Bauer, Dr. Orsini, and Dr. Huckell—to formulate Plaintiff’s RFC. See ECF No. 10-
1 at 15-20. Plaintiff contends that because these opinions supported greater limitations than those
assessed by the ALJ, the ALJ needed to better explain why she rejected the more favorable findings
to formulate the RFC she did. See id.
As an initial matter, many of the above-referenced opinions were provided in the context
of Plaintiff’s workers’ compensations applications. As the ALJ noted, the record contains several
duplicative workers’ compensation reports with ratings and assessments expressed in terms of
percentage of marked partial or mild disability, temporarily impaired or disabled, unable to work,
and the like. Tr. 19. The ALJ properly declined to consider these assessments because they were
based on workers’ compensation rules and methodology, rather than for purposes of establishing
disability under the Social Security regulations, which diminishes their relevance. See SSR 06-
03p, 2006 WL 2329939, at *6-7.
Furthermore, these statements represent opinions on the ultimate issue of disability—an

issue reserved to the Commissioner. See 20 C.F.R. § 404.1527(d) (an opinion on the ultimate issue
of disability is not a medical opinion, and is not entitled to any “special significance”); Robson v.
Astrue, 526 F.3d 389, 393 (8th Cir. 2008); House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007) (an
opinion that “a claimant is disabled or cannot be gainfully employed gets no deference because it
invades the province of the Commissioner to make the ultimate disability determination.”).
However, the ALJ’s decision reflects that she nevertheless considered these reports for their
clinical and diagnostic findings, as well as any specific functional limitations contained therein.
Tr. 18-19. In fact, the ALJ explained that she gave significant weight to the specific functional
assessments outlined in the reports issued by Dr. Tetro, Dr. Bauer, Dr. Orsini, and Dr. Huckell,
due to their expertise and their examinations of Plaintiff. Id.

With respect to Dr. Castro’s August 4, 2017 workers’ compensation report, the ALJ
afforded minimal weight to the functional assessments outlined in the report, explaining they were
internally inconsistent and inconsistent with the overall medical evidence. Tr. 20-21, 593-96,
1955-58, 1961. Plaintiff argues that the ALJ failed to properly consider Dr. Castro’s opinions in
light of the treating physician rule.
The opinions of Plaintiff’s treating physicians should be given “controlling weight” if they
are “well-supported by medically acceptable clinical and laboratory diagnostic techniques and
[are] not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§
404.1527(c)(2). However, a treating physician’s opinion is not afforded controlling weight when
the opinion is inconsistent with other substantial evidence in the record, such as the opinions of
other medical experts. 20 C.F.R. § 404.1527(d)(2), 416.927(c)(2); Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999). If the ALJ gives the treating physician’s opinion less than controlling weight,
he must provide good reasons for doing so. Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998).2

If not afforded controlling weight, a treating physician’s opinion is given weight according
to a non-exhaustive list of enumerated factors, including (i) the frequency of examinations and the
length, nature, and extent of the treatment relationship; (ii) the evidence in support of the
physician’s opinion; (iii) the opinion’s consistency with the record as a whole; and (iv) whether
the physician has a relevant specialty. 20 C.F.R. §§ 404.1527(c) (2), 416.927(c)(2); see Clark, 143
F.3d at 118; Marquez v. Colvin, No. 12 CIV. 6819 PKC, 2013 WL 5568718, at *9 (S.D.N.Y. Oct.
9, 2013). In rejecting a treating physician’s opinion, an ALJ need not expressly enumerate each
factor considered if the ALJ’s reasoning and adherence to the treating physician rule is clear. See,
e.g., Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013).

In this case, the ALJ properly evaluated Dr. Castro’s opinions in accordance with the
regulations and explained her reasons for giving the opinions minimal weight. First, the ALJ
explained that Dr. Castro’s opinions were inconsistent with other medical opinions in the record.
Tr. 20. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ may properly discount the opinion
of a treating physician when the opinion is internally inconsistent or inconsistent with other
evidence. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); see also Burguess v. Berryhill,

2 The Court notes a recent change to the Administration’s regulations regarding the consideration of opinion evidence
will eliminate application of this “treating physician rule” for claims filed on or after March 27, 2017. See Revisions
to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5848-49 (Jan. 18, 2017) (to be codified
at 20 C.F.R. pts. 404 and 416). For the purposes of this case, however, the prior version of the regulation applies. See
Smith v. Colvin, No. 16-CV-6150L, 2018 WL 1210891, at *2 (W.D.N.Y. Mar. 8, 2018).
No. 17-CV-6204L, 2018 WL 3569933, at *4 (W.D.N.Y. July 25, 2018) (ALJ properly discounted
physician’s opinions that were inconsistent with treatment records, objective testing, and history
of conservative treatment).
The ALJ also explained that, although Dr. Castro opined that Plaintiff could only

occasionally sit, stand, and walk, the other opinions in the record declined to assign any significant
limitations in that regard. Tr. 20. For instance, on December 23, 2015, Dr. Tetro opined that
Plaintiff could perform light duty work except that she should not repetitively reach or lift with
her left arm or lift over ten pounds with her left arm. Tr. 221. The ALJ also explained that Dr.
Huckell consistently found that Plaintiff had only a light duty restriction due to her knee
impairment. Tr. 19-20, 1788, 2244, Tr. 2527. Furthermore, Dr. Miller opined that Plaintiff had
only mild to moderate limitations with heavy lifting, bending, carrying, reaching, pushing and
pulling. Tr. 522. The ALJ explained that she gave Dr. Miller’s opinion “very significant weight”
due to her expertise, her physical examination of Plaintiff, and the consistency of her opinions with
the longitudinal medical evidence in the record, including Plaintiff’s fairly good response to

conservative treatment. Tr. 19.
In June 2017, Dr. Bauer opined that Plaintiff could work with restrictions to occasional
five-pound weightlifting; and she should change positions frequently and refrain from lengthy
walking, repetitive stairclimbing, crawling, kneeling, running, repetitive twisting, turning and
bending. Tr. 2146. As the ALJ noted, Dr. Orsini assigned Plaintiff a forty-pound lifting restriction
with standing and walking requirements commensurate with work at a light exertional level. Tr.
19. The ALJ considered all of these opinions and reasonably determined that Dr. Castro’s opinions
were outliers, and accordingly, granted them minimal weight. Tr. 18-21.
Plaintiff alleges that the ALJ’s conclusion that these other opinions did not “assign any
significant standing, walking, or sitting limitations” was “factually inaccurate,” and therefore, the
ALJ was not justified in rejecting Dr. Castro’s opinion on that basis. See ECF No. 10-1 at 13.
Plaintiff’s argument is without merit. As noted above, the ALJ explained that her decision to give

Dr. Castro’s opinions little weight was based, in part, on their inconsistency with other opinions
in the record. Tr. 19. The ALJ explained that in spite of the significant postural limitations assigned
by Dr. Bauer, Dr. Orsini, and Dr. Tetro, these physicians nevertheless indicated that Plaintiff was
able to work with limitations. Tr. 19, 445, 2146, 2652, 2686. Contrary to Plaintiff’s argument, the
ALJ’s finding that these other opinions did not “assign any significant standing, walking, or sitting
limitations” was reasonable. Tr. 20.
Furthermore, the ALJ did not err, as Plaintiff contends, in failing to recontact Dr. Castro to
ask for a clarification of inconsistencies in his opinion and elaboration in the parts of the opinion
that were not supported. See ECF No. 10-1 at 12-13. The ALJ had sufficient evidence here, in the
extensive record, to make a decision. See Morris v. Berryhill, 721 F. App’x 25, 28 (2d Cir. 2018)

( “[t]he duty to recontact arises only if the ALJ lacks sufficient evidence in the record to evaluate
the doctor’s findings”); Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 9 (2d Cir. 2017) (holding
that an ALJ was not compelled seek further evidence when a treating source provided a medical
opinion directly supporting total disability that was uncontradicted by any other medical source
opinion, but was undermined by other record evidence); Reynolds v. Colvin, 570 F. App’x 45, 48
(2d Cir. 2014) (the ALJ was not required to recontact a doctor before discounting an unsupported
opinion).
As to the challenged assignments by the ALJ of different weights to the opinions of record,
where a conflict exists, the Court will defer to the ALJ’s resolution of it “and accept the weight
assigned to the inconsistent opinions as a proper exercise of the ALJ’s discretion.” Smith v.
Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018) (summary order); see also Krull v. Colvin, 669 F.
App’x 31, 32 (2d Cir. 2016) (“Krull’s disagreement is with the ALJ’s weighing of the evidence,
but the deferential standard of review prevents us from reweighing it.”); Caron v. Colvin, 600 F.

App’x 43, 44 (2d Cir. 2015) (observing that, under the substantial evidence standard, the fact that
the evidence may arguably be reconciled to a claimant’s favor is “not probative of anything” as
long as the ALJ’s different interpretation was reasonable). Based on the foregoing, the Court finds
nothing improper in the ALJ’s analysis of the opinion evidence.
There was also nothing improper in the ALJ’s formulation of Plaintiff’s RFC. A claimant’s
RFC is the most she can still do despite her limitations and is assessed based on an evaluation of
all relevant evidence in the record. See 20 C.F.R. §§ 404.1520(e), 404.945(a)(1), (a)(3); SSR 96-
8p, 61 Fed. Reg. 34,474-01 (July 2, 1996). At the hearing level, the ALJ has the responsibility of
assessing the claimant’s RFC. See 20 C.F.R. § 404.1546(c); SSR 96-5p, 61 Fed. Reg. 34,471-01
(July 2, 1996); see also 20 C.F.R. § 404.1527(d)(2) (stating the assessment of a claimant’s RFC is

reserved for the Commissioner). Determining a claimant’s RFC is an issue reserved to the
Commissioner, not a medical professional. See 20 C.F.R. § 416.927(d)(2) (indicating that “the
final responsibility for deciding these issues [including RFC] is reserved to the Commissioner”);
Breinin v. Colvin, No. 5:14-CV-01166(LEK TWD), 2015 WL 7749318, at *3 (N.D.N.Y. Oct. 15,
2015), report and recommendation adopted, 2015 WL 7738047 (N.D.N.Y. Dec. 1, 2015) (“It is
the ALJ’s job to determine a claimant’s RFC, and not to simply agree with a physician’s opinion.”).
In addition, Plaintiff is ultimately responsible for providing evidence to support her claim
of disability. See 42 U.S.C. § 1382c(a)(3)(H)(i); 20 C.F.R. § 416.912(a) (“you must furnish
medical and other evidence that we can use to reach conclusions about your medical
impairment(s)”); 20 C.F.R. §§ 416.912(c) (“you must provide medical evidence showing that you
have an impairment(s) and how severe it is”); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (“It
is not unreasonable to require the claimant, who is in a better position to provide information about
h[er] medical condition, to do so.”); see also Woodmancy v. Colvin, 577 Fed. App’x 72, 74 (2d

Cir. 2014) (“A claimant has the burden of establishing that she has a ‘severe impairment,’ which
is ‘any impairment or combination of impairments which significantly limits [her] physical or
mental ability to do basic work.’”) (citation and quotation marks omitted).
Here, the ALJ reasonably evaluated all the relevant evidence and determined that Plaintiff
retained the ability to perform a range of light work. Tr. 15-21. Upon review of the ALJ’s well-
reasoned decision and the entire record, the Court finds that substantial evidence supports the
ALJ’s RFC finding, and Plaintiff did not meet her burden of showing that a reasonable factfinder
must have assessed a more restrictive RFC finding. See Smith v. Berryhill, 740 F. App’x at 726
(“Smith had a duty to prove a more restrictive RFC, and failed to do so.”); McIntyre v. Colvin, 758
F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible to more than one rational interpretation,

the Commissioner’s conclusion must be upheld.”).
First, the ALJ explained that the objective medical evidence indicated that Plaintiff had
some degree of restriction in her functional activities. Tr. 17, 219, 251, 567, 1173. However, the
ALJ also explained that the evidence in the record showed that Plaintiff’s pain and symptoms
generally responded well to treatment, including knee surgery in August 2015 (prior to Plaintiff’s
SSI application), and subsequent conservative treatment, such as medication management, activity
and dietary modifications, home exercises, physical therapy, and pain management. Tr. 17, 218.
A pattern of conservative treatment weighs against complaints of disabling symptoms. See Netter
v. Astrue, 272 F. App’x 54, 56 (2d Cir. 2008) (holding that it is proper for an ALJ to cite a
claimant’s conservative treatment history to support his conclusion that he or she is not disabled);
Shaffer v. Colvin, No. 1:14-CV-00745 (MAT), 2015 WL 9307349, at *5 (W.D.N.Y. Dec. 21, 2015)
(holding that the ALJ properly discredited the plaintiff’s claims of a disabling condition noting
that her treatment was essentially routine and conservative, consisting of medication management

and physical therapy). see also 20 C.F.R. §§ 416.929(c)(3)(iv)-(vi) (adjudicator properly considers
the claimant’s treatment modalities and their effectiveness);
For instance, the ALJ cited Plaintiff’s January 2015 statement to her pain management
specialist, Andrew Matteliano, M.D. (“Dr. Matteliano”), that her pain management regime helped
her maintain her functional goals in activities of daily living. Tr. 17, 1794. The ALJ also cited an
October 2015 statement from neurologist Dr. Rovner that Plaintiff was “doing better” after her left
knee surgery. Tr. 17, 251. Dr. Rovner went on to recommend only conservative treatment,
including chiropractic care, physical therapy, an exercise program, and pain medication. Tr. 251.
Furthermore, as the ALJ noted, Plaintiff elected to pursue conservative treatment, including
epidural steroid injections, with Dr. Castro in March 2017. Tr. 533. However, as the ALJ also

noted, Plaintiff later declined these injections, opting instead for medication and home exercises.
Tr. 17, 585. Also, as noted above, the record reflects that although Plaintiff was scheduled shoulder
surgery, there is nothing to indicate that the surgery was ever performed. Tr. 662, 1812-13.
The ALJ also noted that Plaintiff’s daily activities did not support her claim of disability
under the Act. Tr. 17. See 20 C.F.R. § 404.1529(c)(3)(i) (An ALJ may consider the nature of a
claimant’s daily activities in evaluating the consistency of allegations of disability with the record
as a whole.); see also Ewing v. Comm’r of Soc. Sec., No. 17-CV-68S, 2018 WL 6060484, at *5
(W.D.N.Y. Nov. 20, 2018) (“Indeed, the Commissioner’s regulations expressly identify ‘daily
activities’ as a factor the ALJ should consider in evaluating the intensity and persistence of a
claimant’s symptoms.”) (citing 20 C.F.R. § 416.929(c)(3)(i)); Cichocki v. Astrue, 729 F.3d 172,
178 (2d Cir. 2013); Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (claimant’s abilities to
watch television, read, drive, and do household chores supported ALJ’s finding that his testimony
was not fully credible).

In her decision, the ALJ provided a detailed explanation of Plaintiff’s testimony on her
activities of daily living and her statements to various providers regarding her activities of daily
living. Tr. 16-17. For instance, Plaintiff testified that she shopped with her 14-year-old daughter
for clothes and school supplies, washed laundry, shopped for groceries, went out to have her nails
done every two weeks, engaged in a home exercise program, attended medical appointments, and
went with her elderly mother to medical appointments. Tr. 16, 37-38, 41-47. The ALJ also cited a
March 2016 statement from Plaintiff’s mother to a medical provider, that Plaintiff “is always a
busy person. She is the primary care provider for her elderly mother and has a teenage daughter.”
Tr. 17, 540. Thus, the ALJ’s RFC finding was supported by substantial evidence, including
objective medical evidence, Plaintiff’s history of responding well to mostly conservative

treatment, and Plaintiff’s reported activities of daily living.
While Plaintiff may disagree with the ALJ’s conclusion, the Court must “defer to the
Commissioner’s resolution of conflicting evidence” and reject the ALJ’s findings “only if a
reasonable factfinder would have to conclude otherwise.” Morris v. Berryhill, No. 16-02672, 2018
WL 459678, at *3 (2d Cir. Jan. 18, 2018) (internal citations and quotations omitted). Plaintiff here
failed to meet his burden of proving that no reasonable factfinder could have reached the ALJ’s
findings on this record. The substantial evidence standard is “a very deferential standard of
review— even more so than the ‘clearly erroneous’ standard,” and the Commissioner’s findings
of fact must be upheld unless “a reasonable factfinder would have to conclude otherwise.”)See
Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original).
For all these reasons, the Court finds that the ALJ appropriately considered the evidence
of record, including the clinical findings and the medical opinions, and the ALJ’s determination
was supported by substantial evidence. Accordingly, the Court finds no error.
CONCLUSION
Plaintiff's Motion for Judgment on the Pleadings (ECF No. 10) is DENIED, and the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 15) is GRANTED. Plaintiff's
Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court will enter
judgment and close this case.
IT IS SO ORDERED.

iy A (Duvvrt
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10363046. Public record. Not legal advice.