Biggs v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

BYRON B., §

§

Plaintiff, §

§

v. § Case # 1:20-cv-553-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Byron B. (“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 his application for Disability Insurance Benefits (“DIB”) under Title

II of the Act, and his 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. 21).

Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c). See ECF Nos. 14, 19. Plaintiff also filed a reply brief. See ECF No. 20. For the

reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 14) is

DENIED, and the Commissioner’s motion for judgment on the pleadings (ECF No. 19) is

GRANTED.

BACKGROUND

Plaintiff protectively filed applications for DIB and SSI on June 20, 2017, alleging

disability beginning February 13, 2017 (the disability onset date), due to musculoskeletal

impairments. Transcript (“Tr.”) 78, 196-201, 202-07. The claims were denied initially on

September 19, 2017, after which Plaintiff requested a hearing. Tr. 78.

Plaintiff initially failed to attend a video hearing on February 5, 2019; he arrived after the

hearing, explaining that his representative had withdrawn and requested additional time to seek

new representation, which was granted. Tr. 49-58, 78. Thereafter, Administrative Law Judge (the

“ALJ”) Gregory Moldafsky presided over a video hearing from Falls Church, Virginia. Tr. 78.

Plaintiff appeared and testified from West Seneca, New York, and was presented by Zachary

Zabawa, an attorney. Id. Beth Crain, an impartial vocational expert (“VE”), also appeared and

testified by telephone. Id.

The ALJ issued an unfavorable decision on January 21, 2020, finding that Plaintiff was not

disabled. Tr. 78-91. On March 20, 2020, the Appeals Council denied Plaintiff’s request for further

review. Tr. 1-6. The ALJ’s January 21, 2020 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 his January 21, 2020 decision:

1. The claimant meets the insured status requirements of the Social Security Act through June

30, 2021.

2. The claimant has not engaged in substantial gainful activity since February 13, 2017, the

alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: broken femur/right hip fracture, status

post surgical open reduction internal fixation (ORIF); degenerative disc disease (20 CFR

404.1520(c) and 416.920(c)).

4. 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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and

416.926).

5. The claimant has the residual functional capacity to perform light work as defined in 20

CFR 404.1567(a) and 416. 967(a) and SSR 83-10,1 except the claimant may not be required

to stand or walk more than 4 hours in an 8-hour work day. The claimant can only

occasionally push or pull with the right lower extremity. He can occasionally climb ramps

and stairs, but never climb ladders, ropes, or scaffolds. The claimant can occasionally

stoop, balance, kneel, and crouch, but never crawl. Finally, he may have no more than

occasional exposure to extreme cold, and never work at unprotected heights.

6. The claimant is capable of performing past relevant work as a Collection Clerk. This work

does not require the performance of work-related activities precluded by the claimant’s

residual functional capacity (20 CFR 404.1565 and 416.965).).

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).

7. The claimant has not been under a disability, as defined in the Social Security Act, from

February 13, 2017, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).

Tr. 78-90.

Accordingly, the ALJ determined that, based on the application for a period of disability

and disability insurance benefits protectively filed on June 20, 2017, the claimant is not disabled

under sections 216(i) and 223(d) of the Social Security Act. Tr. 91. The ALJ also determined that

based on the application for supplemental security benefits protectively filed on June 20, 2017, the

claimant is not disabled under section 1614(a)(3)(A) of the Act. Id.

ANALYSIS

Plaintiff asserts a single point of error. Plaintiff argues that the ALJ failed to properly

evaluate the opinions of consultative examiner Hongbiao Liu, M.D. (“Dr. Liu”), treating

orthopedic surgeon Donald Nenno, M.D. (“Dr. Nenno”), and treating pain management specialist

Cheryle Hart, M.D. (“Dr. Hart”). See ECF No. 14-1 at 11-25.

The Commissioner argues in response that the ALJ properly based his RFC determination

on the observations and assessment of Dr. Liu and the independent medical evaluation of

orthopedic surgeon Gregory Chiaramonte, M.D. (“Dr. Chiaramonte”), and substantial evidence

supports the ALJ’s determination that Plaintiff retained the RFC to perform a wide range of light

work with no more than four hours of standing or walking and occasional postural and

environmental limitations. See ECF No. 19-1 at 10-17.

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, the Court finds that the ALJ properly evaluated the medical opinion evidence

and the other evidence of record and reasonably found that Plaintiff was capable of performing a

wide range of light work. Contrary to Plaintiff’s contention (see ECF No. 14-1 at 11-18), the RFC’s

limitation to light work with no more than four hours of walking properly incorporates Dr. Liu’s

assessment of moderate limitations in prolonged walking. With respect to Plaintiff’s contention

that the ALJ did not properly evaluate Dr. Nenno’s opinions (see ECF No. 14-1 at 18-22), the ALJ

properly explained why he found Dr. Nenno’s opinions were not persuasive based on the factors

of supportability and consistency, as required under the revised regulations. Furthermore, the fact

that the ALJ did not assess Dr. Hart’s statements that Plaintiff is “unable to work” is likewise

consistent with the new regulations. Accordingly, substantial evidence supports the ALJ’s

conclusions, and the Court finds no error.

A claimant’s RFC is the most he can still do despite his 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.”).

Additionally, it is within the ALJ’s discretion to resolve genuine conflicts in the evidence.

See Veino v Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). In so doing, the ALJ may “choose between

properly submitted medical opinions.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998).

Moreover, an ALJ is free to reject portions of medical-opinion evidence not supported by objective

evidence of record, while accepting those portions supported by the record. See Veino, 312 F.3d

at 588. Indeed, an ALJ may formulate an RFC absent any medical opinions. “Where, [] the record

contains sufficient evidence from which an ALJ can assess the [plaintiff’s] residual functional

capacity, a medical source statement or formal medical opinion is not necessarily required.”

Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017) (internal citations and quotation

omitted).

Moreover, the ALJ’s conclusion need not “perfectly correspond with any of the opinions

of medical sources cited in [his] decision,” because the ALJ is “entitled to weigh all of the evidence

available to make an RFC finding that [i]s consistent with the record as a whole.” Matta v. Astrue,

508 F. App’x 53, 56 (2d Cir. 2013) (citing Richardson v. Perales, 402 U.S. 389, 399 (1971) (the

RFC need not correspond to any particular medical opinion; rather, the ALJ weighs and

synthesizes all evidence available to render an RFC finding consistent with the record as a whole);

Castle v. Colvin, No. 1:15-CV-00113 (MAT), 2017 WL 3939362, at *3 (W.D.N.Y. Sept. 8, 2017)

(The fact that the ALJ’s RFC assessment did not perfectly match a medical opinion is not grounds

for remand.).

Contrary to Plaintiff’s contentions, the ALJ in this case properly analyzed the opinion

evidence and the other evidence of record when developing Plaintiff’s RFC. See 20 C.F.R. §§

404.1527, 416.927. Effective for claims filed on or after March 27, 2017, the Social Security

Agency comprehensively revised its regulations governing medical opinion evidence creating a

new regulatory framework. See Revisions to Rules Regarding the Evaluation of Medical Evidence,

82 Fed. Reg. 5844 (Jan. 18, 2017) (technical errors corrected by 82 Fed. Reg. 15, 132-01 (March

27, 2017). Here, Plaintiff filed his claims on June 20, 2017, and therefore, the 2017 regulations are

applicable to his claim.

First, the new regulations change how ALJs consider medical opinions and prior

administrative findings. The new regulations no longer use the term “treating source” and no

longer make medical opinions from treating sources eligible for controlling weight. Rather, the

new regulations instruct that, for claims filed on or after March 27, 2017, an ALJ cannot “defer or

give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or

prior administrative medical findings(s), including those from [the claimant’s own] medical

sources.” 20 C.F.R. § 416.920c(a) (2017).

Second, instead of assigning weight to medical opinions, as was required under the prior

regulations, under the new rubric, the ALJ considers the persuasiveness of a medical opinion (or a

prior administrative medical finding). Id. The source of the opinion is not the most important factor

in evaluating its persuasive value. 20 C.F.R. § 416.920c(b)(2). Rather, the most important factors

are supportability and consistency. Id.

Third, not only do the new regulations alter the definition of a medical opinion and the way

medical opinions are considered, but they also alter the way the ALJ discusses them in the text of

the decision. 20 C.F.R. § 416.920c(b)(2). After considering the relevant factors, the ALJ is not

required to explain how he or she considered each factor. Id. Instead, when articulating his or her

finding about whether an opinion is persuasive, the ALJ need only explain how he or she

considered the “most important factors” of supportability and consistency. Id. Further, where a

medical source provides multiple medical opinions, the ALJ need not address every medical

opinion from the same source; rather, the ALJ need only provide a “single analysis.” Id.

Fourth, the regulations governing claims filed on or after March 27, 2017 deem decisions

by other governmental agencies and nongovernmental entities, disability examiner findings, and

statements on issues reserved to the Commissioner (such as statements that a claimant is or is not

disabled) as evidence that “is inherently neither valuable nor persuasive to the issue of whether [a

claimant is] disabled.” 20 C.F.R. § 416.920b(c)(1)-(3) (2017). The regulations also make clear

that, for claims filed on or after March 27, 2017, “we will not provide any analysis about how we

considered such evidence in our determination or decision” 20 C.F.R. § 416.920b(c).

Finally, Congress granted the Commissioner exceptionally broad rulemaking authority

under the Act to promulgate rules and regulations “necessary or appropriate to carry out” the

relevant statutory provisions and “to regulate and provide for the nature and extent of the proofs

and evidence” required to establish the right to benefits under the Act. 42 U.S.C. § 405(a); see also

42 U.S.C. § 1383(d)(1) (making the provisions of 42 U.S.C. § 405(a) applicable to title XVI); 42

U.S.C. § 902(a)(5) (“The Commissioner may prescribe such rules and regulations as the

Commissioner determines necessary or appropriate to carry out the functions of the

Administration.”); Barnhart v. Walton, 535 U.S. 212. 217-25 (2002) (deferring to the

Commissioner’s “considerable authority” to interpret the Act); Heckler v. Campbell, 461 U.S. 458,

466 (1983). Judicial review of regulations promulgated pursuant to 42 U.S.C. § 405(a) is narrow

and limited to determining whether they are arbitrary, capricious, or in excess of the

Commissioner’s authority. Brown v. Yuckert, 482 U.S. 137, 145 (1987) (citing Heckler v.

Campbell, 461 U.S. at 466).

On February 13, 2017, Plaintiff was hit by a car and fractured his right hip. Tr. 342, 656.

On February 15, 2017, Dr. Nenno performed a closed reduction, internal fixation of the right hip

fracture. Tr. 648-49. On February 22, 2017, Plaintiff was admitted for inpatient rehabilitation

services. Tr. 340. Plaintiff completed his rehabilitation and was discharged on March 23, 2017. Tr.

422. Dr. Nenno provided Plaintiff’s post-surgical follow-up care through July 11, 2017. Tr. 684-

89, 728-29, 764-83.

Contrary to Plaintiff’s contentions, the ALJ in this case properly analyzed the opinion

evidence and the other evidence of record when developing Plaintiff’s RFC. See 20 C.F.R. §§

404.1527, 416.927. The ALJ properly based his RFC determination on the observations and

assessment of Dr. Liu and the opinion of Dr. Chiaramonte. A consultative physician’s opinion may

serve as substantial evidence in support of an ALJ’s decision. Petrie v. Astrue, 412 F. App’x 401, 405

(2d Cir. 2011) (citing Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983)). Dr. Liu observed that

Plaintiff demonstrated full muscle strength and full ranges of motion, as well as normal reflexes and

sensations throughout his arms and legs, although he had decreased sensation in the right leg. Tr. 665.

Plaintiff’s hand and finger dexterity was intact, and he demonstrated full grip strength bilaterally. Id.

Dr. Liu observed that Plaintiff walked slowly and was dependent on his cane, which was medically

necessary for him to maintain his balance and limit his pain. Tr. 664. Dr. Liu assessed only moderate

limitations in prolonged walking, bending, and kneeling. Tr. 665. The ALJ also considered the

September 2017, opinion of orthopedic surgeon Dr. Chiaramonte, who likewise opined that Plaintiff

could perform work that required no prolonged walking, standing, or sitting, and no lifting more than

forty pounds. Tr. 78, 762.

Contrary to Plaintiff’s contention that the ALJ failed to reconcile Dr. Liu’s assessment of

moderate limitations in prolonged walking and that Plaintiff’s cane was medically necessary (see

ECF No. at 14-1 at 11-18), the RFC’s limitation to light work with no more than four hours of

walking properly incorporates Dr. Liu’s assessment of moderate limitations in prolonged walking.

Tr. 83. The ALJ explained that he found Dr. Liu’s opinion persuasive because it was consistent

with Plaintiff’s moderately adverse findings, including limited range of motion in the lumbar spine,

positive straight leg raise testing, and decreased right leg sensation. Tr. 87.

As the ALJ explained, the limitation in squatting and difficulty rising from a seated position

assessed by Dr. Liu were supported by these findings. Tr. 87. Notably, the Second Circuit has

found medical opinions of moderate limitations supportive of an RFC for light work. See White v.

Berryhill, 753 F. App’x 80, 82 (2d Cir. 2019) (physician opinion that claimant had moderate

limitations performing certain exertional activities combined with medical and other evidence

supported RFC finding for light work); see also Martinez v. Comm’r of Soc. Sec., Civ. No 13-159

(KMK) (JCM), 2016 WL 6885181, at *13 (S.D.N.Y. Oct. 5, 2016), report and recommendation

adopted, 2016 WL 6884905 (S.D.N.Y. Nov. 21, 2016) (consultative examiner’s moderate

restrictions for lifting, pushing, pulling, overhead reaching, stooping, squatting, prolonged

standing, and prolonged walking were consistent with an RFC for light work and constituted

substantial evidence in support of RFC finding); Gurney v. Colvin, 14-CV-688S, 2016 WL

805405, at *3 (W.D.N.Y. Mar. 2, 2016) (collecting cases); Harrington v. Colvin, No. 14-CV-

6044P, 2015 WL 790756, at *14 (W.D.N.Y. Feb. 25, 2015) (collecting cases).

The ALJ also properly determined that the medical necessity of Plaintiff’s cane was only

temporary and resolved shortly after Dr. Liu rendered his opinion. Tr. 86. The ALJ noted that

although Dr. Liu did not include a restriction for use of a cane, he observed that Plaintiff’s use of

a cane was medically necessary during Plaintiff’s period of recovery from hip surgery half a year

earlier. Tr. 87. Additionally, the ALJ noted that, in November 2017, only two months after Dr. Liu

rendered his opinion, treating orthopedic surgeon Dr. Nenno observed that Plaintiff’s x-rays

revealed a well-healed right hip fracture with satisfactory fixation, no deformity, and no arthritic

change. Tr. 88, 764, 766. Dr. Nenno opined that Plaintiff should be able to walk a block at a

reasonable pace on rough or uneven surfaces and perform ambulatory activities such as shopping

and banking. Tr. 767. Dr. Nenno further opined that although Plaintiff walked with a cane, it was

not medically necessary. Tr. 768. Based on the foregoing, the ALJ properly reconciled Dr. Liu’s

assessment into the RFC determination, and the Court finds no error.

Plaintiff’s contention that the ALJ did not properly evaluate Dr. Nenno’s opinions. (see

ECF No. 14-1 at 18-22) is similarly unavailing. Pursuant to the revised regulations, the ALJ

properly explained why he did not find Dr. Nenno’s opinion “as pertains to the relevant period as

a whole” persuasive. Tr. 87. First, the ALJ noted that Dr. Nenno’s treatment records did not support

his opinion that Plaintiff was moderately disabled. Tr. 87, 687, 690. For instance, in May 2017,

Dr. Nenno observed that Plaintiff’s legs exhibited good alignment with moderately altered gait

and satisfactory range of motion. Tr. 687. Similarly, in July 2017, Dr. Nenno observed that Plaintiff

stood with good alignment of the legs and walked well. Tr. 689. Plaintiff’s right hip exhibited an

excellent range of motion and his neurovascular status was intact. Id. Dr. Nenno noted that right

hip and pelvis x-rays revealed a good alignment and healing and stated that Plaintiff was doing

fairly well. Id.

The ALJ further noted that Dr. Nenno’s May 2017 and July 2017 opinions assessing that

Plaintiff had a “moderate disability” which precluded him from working was vague and ambiguous

and failed to provide a function-by-function assessment of Plaintiff’s limitations or capacity, and

he did not state whether Plaintiff could not perform any work or just some work, or whether the

disability was permanent. Tr. 87, 687, 690. Furthermore, the ALJ noted that Dr. Nenno rendered

his opinions only three months after Plaintiff underwent major right hip surgery, and, as such, his

opinions were rendered within Plaintiff’s expected recovery period. Tr. 86, 648-49, 687, 690.

The ALJ found that Dr. Nenno’s January 2018 opinion was partially persuasive because

the treatment records did not support his opinion that Plaintiff could lift no more than ten pounds.

Tr. 87, 771-72. The ALJ also found that Dr. Nenno’s treatment records did not support his July

2018 opinion that Plaintiff was limited to sedentary work. Tr. 88, 776-77. As the ALJ noted, Dr.

Nenno did not explain the basis for his restrictions, particularly his limitation on lifting and

carrying where there was no upper extremity impairment implicated. Tr. 88. Further, noted the

ALJ, Dr. Nenno did not identify any particular impairments in his opinion (which the Court notes

was a form opinion provided by Plaintiff’s attorney); however, the ALJ noted that a review of the

treatment notes indicated that Dr. Nenno was treating Plaintiff for right hip impairment at this

time. Tr. 88, 776-77.

Furthermore, as noted above, in November 2017, medical imaging reviewed by Dr. Nenno

showed that Plaintiff’s femur had healed to near-anatomic alignment (Tr. 766), and Dr. Nenno

observed that Plaintiff’s complaints did not match the clinical findings (Tr. 768). Finally, the ALJ

observed that the July 2018 treatment records inexplicably focused on Plaintiff’s left hip, when it

was Plaintiff’s right hip that had fractured and healed. Tr. 88, 776. Perhaps this error was simply

due to carelessness, but the Court agrees with the ALJ’s conclusion that this error did not add to

the persuasive value of Dr. Nenno’s opinion. Tr. 88. Upon review of the ALJ’s decision, the Court

finds that the ALJ properly evaluated Dr. Nenno’s opinions and properly explained his rationale

for finding his opinions less than persuasive.

Plaintiff also contends that the ALJ erred when he did not assess Dr. Hart’s statements that

Plaintiff was unable to work. See ECF No. 14-1 at 22-24. However, the ALJ was not required to

provide any analysis of Dr. Hart’s statements. See 20 C.F.R. §§ 404.1520b(c)(1)-(3),

416.920b(c)(1)-(3) (2017). On multiple visits, Dr. Hart ’s treatment records stated that Plaintiff

was unable to work; however, in those same records, Dr. Hart also stated that Plaintiff’s

“[e]xertional abilities [would] be reevaluated in one month to determine work capabilities.” Tr.

994, 1000, 1007, 1012, 1018, 1025, 1031, 1037. Notably, none of Dr. Hart’s treatment records

address Plaintiff’s exertional abilities and, as such, they do not provide any insight as to Plaintiff’s

functional limitations. Tr. 991-1038. Furthermore, Dr. Hart’s statements that Plaintiff is “unable

to work” are not medical opinions, but rather, are statements on an issue reserved to the

Commissioner. 20 C.F.R. §§ 404.1520b(c)(3), 416.920b(c)(3) (a statement by a medical source

that a claimant is “unable to work” is not a medical opinion but, instead, a statement on an issue

reserved to the Commissioner). Under the revised regulations, statements on issues reserved to the

Commissioner are deemed evidence that “is inherently neither valuable nor persuasive to the issue

of whether [a claimant is] disabled.” 20 C.F.R. §§ 404.1520b(c)(1)-(3), 416.920b(c)(1)-(3) (2017).

Additionally, the regulations make clear that, for such claims, “we will not provide any analysis

about how we considered such evidence in our determination or decision.” 20 C.F.R. §§

404.1520b(c), 416.920b(c). The ALJ, therefore, did not err when he did not assess Dr. Hart’s

statements. Accordingly, the Court finds no error.

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); Krull v.

Colvin, 669 F. App’x 31 (2d Cir. 2016) (the deferential standard of review prevents a court from

reweighing evidence); Bonet, 523 F. App’x at 59 (“Under this very deferential standard of review,

once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to

conclude otherwise.”). Further, it is the ALJ’s duty to evaluate conflicts in the evidence. See 20

C.F.R. § 404.1527(c)(i); Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012)

(“Once the ALJ finds facts, [the Court] can reject those facts only if a reasonable factfinder would

have to conclude otherwise”); Monroe, 676 F. App’x at 7 (quoting Veino, 312 F.3d at 588)

(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”).

For all the reasons discussed above, the Court finds that the ALJ properly considered the

record as a whole, including the medical opinion evidence, and his finding that Plaintiff retained

the functional ability to perform light work with the noted limitations was supported by substantial

evidence. Accordingly, the Court finds no error.

CONCLUSION

Plaintiff's Motion for Judgment on the Pleadings (ECF No. 14) is DENIED, and the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 19) 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.

bec Gare,

UNITED STATES MAGISTRATE JUDGE

15