# Deluca v. Commissioner of Social Security

> District Court, W.D. New York · April 14, 2021

URL: https://www.frixlaw.com/law-library/cases/10363661

## Case

- **Court:** District Court, W.D. New York
- **Decided:** April 14, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

\
APR 14 2021
Lig Ry | = ot
UNITED STATES DISTRICT COURT Vers LOEWENGUTS oS
WESTERN DISTRICT OF NEW YORK RN DISTRIC

JOANNE D., 20-CV-00254-MJR
DECISION AND ORDER
Plaintiff,
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COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Pursuant to 28 U.S.C. §636(c), the parties consented to have a United States
Magistrate Judge conduct all proceedings in this case. (Dkt. No. 20)
Plaintiff Joanne D." (“Plaintiff’) brings this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social
Security (“Commissioner’” or “defendant’) denying her application for Disability Insurance
Benefits (“DIB”) pursuant to the Social Security Act (the “Act”). Both parties have moved
for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the following reasons, Plaintiffs motion (Dkt. No. 14) is denied,
defendant’s motion (Dkt. No. 18) is granted, and the case is dismissed.

accordance with the District's November 18, 2020, Standing Order, plaintiff is identified by first name
and last initial.

BACKGROUND?
Plaintiff filed protectively for DIB on October 26, 2016, alleging a disability onset
date of November 21, 2015. (Administrative Transcript [“Tr.”] 16, 89, 153-59). The
application was initially denied on March 2, 2017. (Tr. 70-95). Plaintiff timely filed a
request for an administrative hearing. (Tr. 98-99). A hearing was held before
Administrative Law Judge (“ALJ”) Bryce Baird, on January 3, 2019. (Tr. 32-69). Plaintiff
appeared with counsel. A vocational expert also appeared. On February 25, 2019, the
ALJ issued a decision finding Plaintiff not disabled through the date of the decision. (Tr.
11-31). On January 6, 2020, the Appeals Council denied Plaintiffs request for review,
making the ALJ’s decision final. (Tr. 1-7). This action followed.

DISCUSSION
I. Scope of Judicial Review
The Court's review of the Commissioner's decision is deferential. Under the Act,
the Commissioner’s factual determinations “shall be conclusive” so long as they are
“supported by substantial evidence,” 42 U.S.C. §405(g), that is, supported by “such
relevant evidence as a reasonable mind might accept as adequate to support [the]
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks
and citation omitted). “The substantial evidence test applies not only to findings on basic
evidentiary facts, but also to inferences and conclusions drawn from the facts.” Smith v.
Colvin, 17 F. Supp. 3d 260, 264 (W.D.N.Y. 2014). “Where the Commissioner’s decision

2 The Court presumes the parties’ familiarity with Plaintiffs medical history, which is summarized in the
moving papers.

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rests on adequate findings supported by evidence having rational probative force,” the
Court may “not substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart,
312 F.3d 578, 586 (2d Cir. 2002). Thus, the Court’s task is to ask “‘whether the record,
read as a whole, yields such evidence as would allow a reasonable mind to accept the
conclusions reached’ by the Commissioner.” Silvers v. Colvin, 67 F. Supp. 3d 570, 574
(W.D.N.Y. 2014) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).
Two related rules follow from the Act’s standard of review. The first is that “[i]t is
the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and to
appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health &
Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The second rule is that “[glenuine
conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d
at 588. While the applicable standard of review is deferential, this does not mean that the
Commissioner's decision is presumptively correct. The Commissioner’s decision is, as
described above, subject to remand or reversal if the factual conclusions on which it is
based are not supported by substantial evidence. Further, the Commissioner’s factual
conclusions must be applied to the correct legal standard. Kohler v. Astrue, 546 F.3d
260, 265 (2d Cir. 2008). Failure to apply the correct legal standard is reversible error. /d.
II. Standards for Determining “Disability” Under the Act -
A “disability” is an inability “to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of
not less than twelve (12) months.” 42 U.S.C. §§423(d)(1)(A), 1382c(a)(3)(A). The
Commissioner may find the claimant disabled “only if his physical or mental impairment

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or impairments are of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy, regardless of whether
such work exists in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.” /d. §§423(d)(2)(A),
1382c(a)(3)(B). The Commissioner must make these determinations based on “objective
medical facts, diagnoses or medical opinions based on these facts, subjective evidence
of pain or disability, and . . . [the claimant's] educational background, age, and work
experience.” Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983) (first alteration in
original) (quoting Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)).
To guide the assessment of whether a claimant is disabled, the Commissioner has
promulgated a “five-step sequential evaluation process.” 20 C.F.R. §§404.1520(a)(4),
416.920(a)(4). First, the Commissioner determines whether the claimant is “working” and
whether that work “is substantial gainful activity.” Id. §§404.1520(b), 416.920(b). If the
claimant is engaged in substantial gainful activity, the claimant is “not disabled regardless
of [his or her] medical condition or . . . age, education, and work experience.” /d.
§§404.1520(b), 416.920(b). Second, if the claimant is not engaged in substantial gainful
activity, the Commissioner asks whether the claimant has a “severe impairment.” /d.
§§404.1520(c), 416.920(c). To make this determination, the Commissioner asks whether
the claimant has “any impairment or combination of impairments which significantly limits
[the claimant’s] physical or mental ability to do basic work activities.” Id. §§404.1520(c),
416.920(c). As with the first step, if the claimant does not have a severe impairment, he
or she is not disabled regardless of any other factors or considerations. □□□□

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§§404.1520(c), 416.920(c). Third, if the claimant does have a severe impairment, the
Commissioner asks two additional questions: first, whether that severe impairment meets
the Act's duration requirement, and second, whether the severe impairment is either listed
in Appendix 1 of the Commissioner's regulations or is “equal to” an impairment listed in
Appendix 1. /d. §§404.1520(d), 416.920(d). If the claimant satisfies both requirements
of step three, the Commissioner will find that he or she is disabled without regard to his
or her age, education, and work experience. Id. §§404.1520(d), 416.920(d).
If the claimant does not have the severe impairment required by step three, the
Commissioner's analysis proceeds to steps four and five. Before doing so, the
Commissioner must “assess and make a finding about [the claimant’s] residual functional
capacity [“RFC”] based on all the relevant medical and other evidence” in the record. □□□
§§404.1520(e), 416.920(e). RFC “is the most [the claimant] can still do despite [his or
her] limitations.” /d. §§404.1545(a)(1), 416.945(a)(1). The Commissioner's assessment
of the claimant's RFC is then applied at steps four and five. At step four, the
Commissioner “compare[s] [the] residual functional capacity assessment . . . with the
physical and mental demands of [the claimant’s] past relevant work.” /d. §§404.1520(f),
416.920(f). If, based on that comparison, the claimant is able to perform his or her past
relevant work, the Commissioner will find that the claimant is not disabled within the
meaning of the Act. /d. §§404.1520(f), 416.920(f). Finally, if the claimant cannot perform
his or her past relevant work or does not have any past relevant work, then at the fifth
step the Commissioner considers whether, based on the claimant’s RFC, age, education,
and work experience, the claimant “can make an adjustment to other work.” □□□□
§§404.1520(g)(1), 416.920(g)(1). If the claimant can adjust to other work, he or she is

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not disabled. /d. §§404.1520(g)(1), 416.920(g)(1). If, however, the claimant cannot
adjust to other work, he or she is disabled within the meaning of the Act. □□□□
§§404.1520(g)(1), 416.920(g)(1).
The burden through steps one through four described above rests on the claimant.
If the claimant carries his burden through the first four steps, “the burden then shifts to
the [Commissioner] to show there is other gainful work in the national economy which the
claimant could perform.” Carroll, 705 F.2d at 642.
HI. The ALJ’s Decision
At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity
since November 21, 2015, the alleged onset date. (Tr. 18). At step two, the ALJ found
that Plaintiff had the following severe impairments: lumbar disc disease, status post
remote and recent surgical intervention; and cervical disc disease with status post remote
and recent surgical intervention. (Tr. 19). At step three, the ALJ concluded that Plaintiff
did not have an impairment or combination of impairments that met or medically equaled
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 20).
Prior to proceeding to step four, the ALJ determined that Plaintiff retained the following
RFC:
Sedentary work as defined in 20 CFR 404.1567(a) except she can lift and carry on
occasion up to 10 pounds, and lift and carry frequently up to five pounds. She can
sit for up to six hours in an eight-hour day, stand or walk for up to two hours in an
eight-hour day. She would be limited to occasional climbing of ramps or stairs, and
no climbing of ladders, ropes or scaffolds. She would be limited to only occasional
balancing, occasional stooping, occasional kneeling, occasional crouching, and no
crawling. She would be limited to environments in which there would be no
exposure to excessive vibration, no exposure to hazards such as unprotected
heights or moving machinery, and she could have no concentrated exposure to
pulmonary irritants such as odors, fumes, dusts, gases or poor ventilation.

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(Tr. 20-25).
At step four of the sequential evaluation, the ALJ concluded that Plaintiff is capable
of performing her past relevant work as an Administrative Assistant. (Tr. 25). The ALJ
also found, in the alternative, at step five, that Plaintiff is capable of performing a
significant number of other jobs in the national economy given her transferable skills. /d.
Accordingly, the ALJ determined that Plaintiff has not been under a disability from
November 21, 2015, through the date of the decision. (Tr. 27).
IV. Plaintiff's Challenge
Plaintiff argues that the ALJ improperly weighed the medical opinions of Dr. David
Brauer, M.D., a consultative examiner; Dr. Roy C. Brown, M.D., a reviewing medical
consultant; and Dr. Donna Miller, D.O., another reviewing medical consultant. The Court
finds this argument without merit.
It is the ALJ’s role to resolve conflicts in the record medical evidence. See Veino
v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); see also Pope v. Barnhart, 57 F. App’x
897, 899 (2d Cir. Feb. 24, 2003) (summary order; “[aJn ALJ has an independent duty to
resolve ambiguities and inconsistencies...[but] where the inconsistencies do not appear
resolvable, the ALJ may decide based on the available evidence”). An ALJ may properly
discount the opinion of a 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 Domm v. Colvin, 579 F.App’x 27, 28 (2d Cir. Sept. 23, 2014) (summary
order); Micheli v. Astrue, 501 F.App’x 26, 28-29 (2d Cir. Oct. 25, 2012) (summary order):
Burguess v. Berryhill, No. 17-CV-6204L, 2018 WL 3569933, at *4 (W.D.N.Y. July 25,

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2018) (ALJ properly discounted physician's opinions that were inconsistent with treatment
records, objective testing, and history of conservative treatment).
Here, Plaintiff's argument that the ALJ improperly “rejected” every medical opinion
in the record misstates the ALJ’s decision. (Tr. 24). The ALJ gave “partial,” but not zero,
weight to Dr. Brauer’s consultative examination because he examined Plaintiff on one
occasion “just three months” after Plaintiff had lumbar spine surgery. (Tr. 24, 374-78).
The ALJ noted that Plaintiffs medical records demonstrated that she had “significant
improvement” in her back pain after her surgery. (Tr. 24).
Consistent with the ALJ’s analysis, Plaintiff reported in April 2017 that her back
pain improved after her surgery, and she was able to walk without pain. (Tr. 568-69).
Plaintiffs medical providers observed on multiple occasions after her surgery that she
walked normally, had only mild to moderate range of motion limitations in her back, and
had normal muscle strength, neurological signs, and motor function in her arms and legs.
(Tr. 402, 422-23, 432, 437, 441, 447, 453, 457, 569). In July and August 2017, Dr.
Gutierrez observed that Plaintiff had 70% relief of her back pain with treatment and
medication. (Tr. 445, 455). In April 2018, Plaintiff told NP Klemp that she lived alone and
independently performed all activities of daily living with pain medication. (Tr. 401).
Plaintiff was able to lift a gallon of milk, stand up to 20 minutes, drive short distances, and
perform household chores. (Tr. 401, 403). The next month, Plaintiff returned to work as
a bartender, working five-hour shifts three days each week. (Tr. 54, 443, 440). Plaintiff
told her medical providers that her pain medication made her “able to work.” (Tr. 426).
In addition to Dr. Brauer’s consultative examination, the ALJ considered and gave
“little,” but not zero, weight to the opinions of Dr. Brown and Dr. Miller — physicians that

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reviewed Plaintiffs medical records and opined that Plaintiff would be capable of
performing a range of light work within 12 months after her spinal fusion surgery. (Tr. 24,
74-75, 85-86). The ALJ reasoned — to Plaintiff's benefit — that Plaintiff's medical records
from her treating providers demonstrated that she was not capable of performing the full
range of light work that Dr. Brown and Dr. Miller described in their opinions. (Tr. 24).
Contrary to Plaintiffs arguments, the ALJ did not merely base his RFC
determination on his “lay” opinion. Instead, the ALJ considered the entire record,
including all of Plaintiffs medical treatment records and the opinions of two physicians
that reviewed and assisted the ALJ to interpret Plaintiffs medical records. (Tr. 19-25).
The agency's regulations define “[mJedical opinions” to include all “statements from
acceptable medical sources that reflect judgments about the nature and severity of [the
claimant's] impairment(s), including [her] symptoms, diagnosis and prognosis.” 20 C.F.R.
§ 404.1527(a)(1). This includes “statements...that have been provided by medical
sources, whether or not they are based on formal medical examinations.” 0 C.F.R. §
404.1545; Social Security Ruling (SSR) 96-8p.
In this case, the ALJ properly fulfilled his role to weigh and resolve conflicts in the
evidence and determine Plaintiffs RFC. See Veino, 312 F.3d at 588. In doing so, “the
ALJ [wa]s not required to rely entirely on a particular physician’s opinion or choose
between the opinions [of] any of the claimant’s physicians.” Salisbury v. Comm'r of Soc.
Sec., 1:19-CV-1198-DB, 2020 WL 6384233, at *8 (W.D.N.Y. Oct. 30, 2020) (quoting
Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) and Schmidt v. Astrue, 496 F.3d 833,
845 (7th Cir. 2007)). The ALJ may formulate an RFC without a medical source statement
or formal medical opinion. See Melissa C. v. Comm'r of Soc. Sec., 19-CV-1206, 2021

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WL 614633, at *4 (W.D.N.Y. Feb. 17, 2021) (“an ALJ's RFC finding does not need to be
based on a particular medical opinion or medical source statement;” citing Monroe v.
Comm'r of Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017)). While the ALJ’s RFC
determination is a “medical” question — i.e., part of the medical portion of the sequential
evaluation process rather than the vocational portion — there is no requirement that an
RFC finding correspond directly to a specific medical opinion. See Trepanier v. Comm'r
of Soc. Sec. Admin., 752 F. App’x 75, at 79 (2d Cir. Nov. 13, 2018) (the ALJ’s RFC
determination need not perfectly correspond with any of the opinions of medical sources
cited in his decision); Matta v. Astrue, 508 F.App’x 53, 56 (2d Cir. Jan. 25, 2013)
(summary order) (ALJ’s conclusion need not “perfectly correspond with any of the
opinions of medical sources cited in his decision”); see also Chapo v. Astrue, 682 F.3d
1285, 1288-89 (10th Cir. 2012) (there is “no requirement in the regulations for a direct
correspondence between an RFC finding and a specific medical opinion on the functional
capacity in question”). The ALJ properly assessed Plaintiff's RFC by weighing all relevant
medical and other evidence that Plaintiff provided. See 20 C.F.R. §§ 404.1545(a)(3),
404.1546(c).
The burden is on the Plaintiff to produce evidence to prove her RFC and disability.
See 20 C.F.R. § 404.1512(a)(1); Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). A
claimant's failure to provide medical evidence “should not be held against the ALJ when
there is medical evidence that supports the ALJ’ s decision.” Steed v. Astrue , 524 F.3d
872, 876 (8th Cir. 2008).
In Social Security cases, the capability to perform the full range of work at all
exertional levels is the default. Plaintiff then had the burden to prove that she had physical

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impairments that reduced her RFC to less than the limited range of sedentary work in the
ALJ's RFC determination. See Poupore, 566 F.3d at 305-06; see also Smith v. Berryhill,
740 F. App’x 721 (2d Cir. 2018); Barry v. Colvin, 606 F. App’x 621, 622 (2d Cir. 2015) (“A
lack of supporting evidence on a matter for which the claimant bears the burden of proof,
particularly when coupled with other inconsistent record evidence, can constitute
substantial evidence supporting a denial of benefits”).
Contrary to Plaintiff's claims, the record in this case is not undeveloped. The record
contains more than 300 pages of medical records, and Plaintiff's counsel represented at
her hearing that all of her relevant medical records were present. (Tr. 38-40). Two
physicians opined that Plaintiff would be capable of performing a range of light work (Tr.
73-75, 84-86), and the ALJ merely discounted those opinions — to Plaintiff's benefit — and
limited her to a range of sedentary work consistent with other record medical evidence.
(Tr. 20-24). “The mere fact that medical evidence is conflicting or internally inconsistent
does not mean that [the record is undeveloped]. Rather, because it is the sole
responsibility of the ALJ to weigh all medical evidence and resolve any material conflicts
in the record where the record provides sufficient evidence for such a resolution, the ALJ
will weigh all of the evidence and see whether it can decide whether a claimant is disabled
based on the evidence [s]he has, even when that evidence is internally inconsistent.”
Micheli, 501 F.App’x at 28-29.
In essence, Plaintiff merely disagrees with the ALJ’s evaluation of the evidence.
However, “it is not enough for Plaintiff to merely disagree with the ALJ’s weighing of the
evidence or to argue that evidence in the record could support [her] position. Rather,
[s]he must show that no reasonable factfinder could have reached the ALJ's conclusions

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based on the evidence in the record.” Gonzalez-Cruz v. Comm 'r of Soc. Sec., 294 F.
Supp. 3d 164, 187 (W.D.N.Y. 2018) (internal quotations and citations omitted); see also
Brault, 683 F.3d at 448 (Court cannot reject the ALJ’s fact-findings unless “a reasonable
factfinder would have to conclude otherwise”) (internal quotation omitted)). The
substantial evidence standard is so deferential that there could be “two contrary rulings
on the same record [and both] may be affirmed as supported by substantial evidence.”
Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 127 (2d Cir. 2012) (citing Consolo v. Fed.
Mantime Comm'n, 383 U.S. 607, 620 (1966)). So long as substantial record evidence
supports the ALJ’s determination of the facts, the Court must defer to the ALJ’s decision.
See Vilardi v. Astrue, 447 Fed. App’x 271, 272 (2d Cir. Jan. 10, 2012) (summary order);
Rouse v. Colvin, No. 14-CV-817S, 2015 WL 7431403, at *6 (W.D.N.Y. Nov. 23, 2015)
(unpublished). Here, there is substantial evidence in the record as a whole supporting
the ALJ’s findings, and he must therefore be affirmed. See Biestek, 139 S. Ct. at 1154,
1157.

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CONCLUSION

. For the above reasons, Plaintiff's motion for judgment on the pleadings (Dkt. No.
14) is denied, defendant’s motion for judgment on the pleadings (Dkt. No. 18) is granted,
and the case is dismissed.
The Clerk of Court shall take all steps necessary to close this case.
SO ORDERED.
Dated: April 13, 2021
Buffalo, New York

MICHAEL J. ROEMER
United States Magistrate Judge

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