# Aquino v. Commissioner of Social Security

> District Court, W.D. New York · April 4, 2022

URL: https://www.frixlaw.com/law-library/cases/10364822

## Case

- **Court:** District Court, W.D. New York
- **Decided:** April 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10364822

## How later opinions describe it (automated extraction)

- holding that the ALJ properly declined to credit certain conclusions in a medical source’s opinion that were inconsistent with other evidence of record

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SERGIO A., §
§
Plaintiff, §
§
v. § Case # 1:20-cv-1739-DB
§
COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM
§ DECISION AND ORDER
Defendant. §

INTRODUCTION

Plaintiff Sergio A. (“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. 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. 19).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). See ECF Nos. 12, 15. Plaintiff also filed a reply brief. See ECF No. 18. For the
reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 12) is
DENIED, and the Commissioner’s motion for judgment on the pleadings (ECF No. 15) is
GRANTED.
BACKGROUND
Plaintiff protectively filed an application for DIB on March 6, 2018, alleging disability
beginning March 2, 2016 (the disability onset date), due to herniated lumbar discs and bone spurs.
Transcript (“Tr.”) 71, 145-46, 166. Plaintiff’s claim was denied initially on May 16, 2018 (Tr. 77-
88), after which he requested an administrative hearing (Tr. 89-90). On January 7, 2020,
Administrative Law Judge Timothy Belford (the “ALJ”) held a video hearing from Lawrence,
Massachusetts. Tr. 20, 35-59. Plaintiff appeared and testified in Buffalo, New York, and was
represented by Sarah A. Frederick, an attorney. Tr. 20. Elaine G. Cogliano, an impartial vocational
expert (“VE”), also appeared and testified via telephone. Tr. 20, 54-58.

The ALJ issued an unfavorable decision on February 4, 2020, finding that Plaintiff was not
disabled. Tr. 20-31. On September 29, 2020, the Appeals Council denied Plaintiff’s request for
further review. Tr. 1-6. The ALJ’s February 4, 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 February 4, 2020 decision:
1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2021.
2. The claimant has not engaged in substantial gainful activity since March 2, 2016, the
alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairment: degenerative disc disease of the lumbar
spine (20 CFR 404.1520(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 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(b)1 that does not require more than four hours total of combined standing
and walking. The claimant is limited to no more than occasional climbing, stooping,
crawling, crouching and kneeling.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on December 4, 1982 and was 33 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English
(20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using
the Medical-Vocational Rules as a framework supports a finding that the claimant is “not
disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20
CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform (20 CFR 404.1569 and 404.1569(a)).

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).
11. The claimant has not been under a disability, as defined in the Social Security Act, from
March 2, 2016, through the date of this decision (20 CFR 404.1520(g)).
Tr. 20-31.
Accordingly, the ALJ determined that, based on the application for a period of disability
and disability insurance benefits filed on March 6, 2018, the claimant is not disabled under sections
216(i) and 223(d) of the Social Security Act. Tr. 31.
ANALYSIS
Plaintiff asserts three points of error. First, Plaintiff argues that the ALJ failed to evaluate
the favorable opinion and functional capacity evaluation of consulting physical therapist Mark
Howard, PT, DPT, OCS (“Mr. Howard”); improperly relied on a stale opinion from state agency

reviewing physiatrist of J. Lawrence (“Dr. Lawrence”); and failed to develop the record with
respect to the sit/stand option opined by Mr. Howard. See ECF No. 12-1 at 10-15. Second, Plaintiff
argues that the ALJ erred in finding that Plaintiff’s right shoulder condition was not a severe
impairment. See id. at 15-17. Finally, Plaintiff argues that the ALJ improperly substituted his lay
opinion over the opinion of a doctor. See id. at 17-25.
In response, the Commissioner argues as follows: (1) the ALJ properly assessed the
opinions of Dr. Lawrence and Mr. Howard; (2) the ALJ properly determined that Plaintiff’s right
shoulder condition was not a severe impairment, and Plaintiff failed to show that his shoulder
condition significantly limited his ability to do basic work activity; and (3) there is no merit to
Plaintiff’s contention that the ALJ’s “substituted his own ‘medical’ judgment for that of any

physician regarding [Plaintiff’s] physical limitations.” See ECF No. 15-1 at 15-23.
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’s decision was supported by substantial

evidence, including the medical opinion evidence, Plaintiff’s generally unremarkable physical
examination findings, and Plaintiff’s activities of daily living. Accordingly, the ALJ properly
concluded that Plaintiff retained the RFC to perform work that exists in significant numbers in the
national economy and, thus, he was not disabled.
Family physician Angela Barnes, D.O. (“Dr. Barnes”), examined Plaintiff on January 6,
2016, for complaints of right shoulder pain. Tr. 262-63. Upon examination, Dr. Barnes observed
that Plaintiff’s right arm exhibited full ranges of motion except that he could not reach behind his
back. Tr. 262. She assessed “likely rotator cuff tendinopathy vs. tear” and recommended physical
therapy. Tr. 263.
Neurologist Patrick J. Hughes, M.D. (“Dr. Hughes”), conducted an independent medical

examination (“IME”), on April 18, 2016. Tr. 382-86. Plaintiff’s medical history indicated that he
had lumbar surgery in 2013 performed by Dr. Leonardo and had suffered a workplace injury on
August 2, 2015. Tr. 382-83. Plaintiff told Dr. Hughes that he could lift twenty pounds, as well as
drive for thirty minutes at a time. Tr. 382. Upon examination, Plaintiff was able to walk and was
able to get on and off the examination table without assistance; his cranial nerves were intact;
motor strength was normal throughout all of the major muscle groups in the upper and lower
extremities; and straight leg raise testing was positive on the right. Tr. 383. Dr. Hughes noted
hyperalgesia extending from Plaintiff’s feet to his calves and was unable to elicit reflexes. Id.
Range of motion in the lumbar spine was 30 degrees of forward flexion, extension was 10 degrees
and bilateral lateral flexion was 10 degrees. Id. There was no sign of spasm in the paraspinal
muscles in the lower spine. Id.
Based on his exam findings and review of the records, Dr. Hughes stated that Plaintiff had
low-back and bilateral leg pain causally related to his work injury and stated that a lumbar fusion

surgery of S1-L5 was warranted. Tr. 385. He stated that Plaintiff was limited to light duty that does
not involve more than thirty minutes of continuous sitting, standing, or walking as well as lifting
more than ten pounds.
Plaintiff underwent another IME on November 1, 2016, with orthopedic surgeon Joshua
Auerbach, M.D. (“Dr. Auerbach”). Tr. 396-401. Dr. Auerbach noted that Plaintiff made a “really
nice recovery” from his L5-S1 anterior lumbar interbody fusion (“ALIF”) surgery, and his range
of motion showed only mild restrictions with no leg pain and mild back pain. Tr. 399. Dr. Auerbach
also noted that Plaintiff’s household activities included doing light housework, cooking, cleaning,
and shopping. Dr. Auerbach assessed that Plaintiff could lift twenty pounds occasionally and ten
pounds frequently. Tr. 399.

Neurosurgeon John Pollina, M.D. (“Dr. Pollina”), conducted a post-operative follow-up
examination on December 14, 2016. Tr. 273-74. Plaintiff reported “excellent progress” since his
last visit and had “no significant pain.” Tr. 273. Upon examination, Dr. Pollina observed that
Plaintiff’s gait and station were normal, and he demonstrated full muscle strength and normal
reflexes and sensations throughout his legs. Id. He denied tenderness to palpitation of the lumbar
spine and/or paraspinal muscles, and straight leg raising tests were negative. Tr. 273. X-rays of
Plaintiff’s lumbar spine revealed stable placement of instrumentation at the L5-S1 level with
evidence of bony bridging anteriorly at the operative site. Tr. 274, 357, 358, 359. Dr. Pollina noted
that Plaintiff “has done excellent postoperatively and is happy with the results of surgery.” Tr. 274.
Plaintiff returned to Dr. Auerbach for a follow-up examination on August 28, 2017. Tr.
392-95. Plaintiff reported that his typical day consisted of doing housework, cooking, cleaning,
and shopping, as well as taking care of his two small children and looking for work. Tr. 392.
Plaintiff also reported that he was attending physical therapy, doing home exercises, going to a

gym, and using a swimming pool. Tr. 393. Dr. Auerbach assessed that Plaintiff could perform
medium exertional work with lifting fifty pounds occasionally and twenty pounds frequently. Tr.
393, 394.
Orthopedic surgeon Zair Fishkin, M.D., Ph.D. (“Dr. Fishkin”), examined Plaintiff for
complaints of lower back pain on February 28, 2018. Tr. 676-80. Upon physical examination, Dr.
Fishkin observed that Plaintiff’s gait was normal (Tr. 677), and he demonstrated full muscle
strength, as well as normal reflexes and sensations throughout his arms and legs (Tr. 678).
State agency medical consultant Dr. Lawrence reviewed the evidence of record on May 15,
2018 and assessed that Plaintiff could lift/carry twenty pounds occasionally and ten pounds
frequently; during the course of an eight-hour workday, he could sit as well as stand and/or walk

for about six hours each; and he could no more than frequently climb ramps/stairs, climb
ladders/ropes/scaffolds, and/or stoop. Tr. 66. Dr. Lawrence assessed no limitations in balancing,
kneeling, crouching, nor crawling and no manipulative limitations. Tr. 66-67.
Family physician Tariq A. Sheikh, M.D. (“Dr. Sheikh”), examined Plaintiff on August 17,
2018 and May 3, 2019. Tr. 579-89. On August 17, 2018, Plaintiff complained of non-specific joint
pain. Tr. 587. Upon examination, Dr. Sheikh observed that Plaintiff was 5’10” tall and weighed
225 pounds. Tr. 588. Plaintiff appeared healthy and well developed; he walked with a normal gait;
he demonstrated full muscle strength throughout his arms and legs; and he denied spinal
tenderness. Id. Dr. Sheikh assessed polyarthritis, unspecified; and obesity. Id. On May 3, 2019,
Plaintiff complained of right shoulder pain. Tr. 581. Dr. Sheikh observed that Plaintiff’s physical
examination findings were unchanged since his August 2018 examination. Tr. 582, 584, 588. Dr.
Sheikh also noted that x-rays of Plaintiff’s right shoulder taken on June 6, 2019 were unremarkable
except for a slight spur formation at the acromioclavicular joint. Tr. 579.

Mr. Howard performed a functional capacity evaluation on June 20, 2019. Tr. 550-58.
Plaintiff demonstrated the ability to lift twenty pounds occasionally and ten pounds frequently. Tr.
550. Plaintiff reported that he could sit for thirty minutes at a time and walk for forty-five minutes
continuously. Tr. 550, 557. Mr. Howard observed that Plaintiff demonstrated full muscle strength
and full ranges of motion throughout his arms. Tr. 555. Plaintiff also demonstrated the ability to
stand for thirty-five minutes at a time. Tr. 557. He further demonstrated the ability to tandem
balance, crouch, kneel, and reach without difficulty, but was unable to stoop due to back pain. Tr.
558. Mr. Howard assessed that Plaintiff could perform light work and opined that Plaintiff was
capable of occasional sitting (2 hours), frequent lifting, standing, and walking (6 hours), and
occasional carrying, frequent pushing, pulling, but never stooping, climbing, or crawling,

occasional handling and fingering, and frequent reaching. Tr. 550. Plaintiff drove 28 minutes to
the appointment and sat for 30 minutes to complete paperwork with periodic breaks to stand. Tr.
557. Plaintiff reported his sitting tolerance was limited to 25 minutes before he requires a positional
change. Id. Mr. Howard opined that Plaintiff could not tolerate “extended sitting” and
“demonstrated the ability to stand for 35 minutes.” Id.
Orthopedic surgeon Anthony Cicoria, M.D. (“Dr. Cicoria”), conducted an IME on August
14, 2019, and assessed that Plaintiff could lift thirty pounds. Tr. 568. He opined that Plaintiff
should avoid frequent bending and twisting, prolonged sitting, and/or prolonged standing, and he
should be allowed to change positions as needed. Tr. 568.
Plaintiff returned to Dr. Sheikh for a follow-up examination on September 20, 2019. Tr.
576-78. Upon examination, Plaintiff weighed 252 pounds and appeared healthy and well
developed. Tr. 577. Plaintiff walked with a normal gait; demonstrated full muscle strength
throughout his arms; and denied spinal tenderness. Id. Dr. Sheikh assessed right shoulder pain and

obesity. Id.
Plaintiff returned to Dr. Fishkin for a follow-up examination on October 14, 2019. Tr. 590-
94. Plaintiff complained of continued lower back pain. Tr. 590. Dr. Fishkin observed that a June
6, 2019 MRI of Plaintiff’s lumbar spine revealed no residual stenosis at the L4-L5 and L5-S1
levels, nor any abnormalities at the adjacent levels. Tr. 590-91. Dr. Fishkin diagnosed arthrodesis
at the L5-S1 level and transforaminal lumbar interbody fusion (“TLIF”) at the L4-S1 levels. Tr.
592.
Plaintiff first argues that the ALJ failed to properly assess the opinions of Dr. Lawrence
and Mr. Howard, and therefore, his RFC finding was not supported by substantial evidence. 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. 2015), report and recommendation adopted, 2015 WL 7738047 (N.D.N.Y. 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.).
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 claim on March 6, 2018, 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).
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, and substantial
evidence supports the ALJ’s RFC assessment. See 20 C.F.R. §§ 404.1527, 416.927. The ALJ
properly based his determination that Plaintiff retained the RFC to perform a range of light work on
the assessments of Drs. Lawrence, Dr. Auerbach, and Mr. Howard; the generally unremarkable

physical examination findings of Drs. Pollina, Hughes, Sheikh, and Fishkin; and Plaintiff’s reported
activities of daily living. Tr. 23-29. Furthermore, each of the physicians who assessed Plaintiff’s ability
to do work-related activities assessed that he could do light work.
As noted above, state agency medical consultant Dr. Lawrence assessed that Plaintiff could
lift/carry twenty pounds occasionally and ten pounds frequently; sit, stand, and/or walk for about six
hours out of an eight-hour workday; and, had no limitations in balancing, kneeling, crouching, nor
crawling and no manipulative limitations. Tr. 66-67. As the ALJ noted, Dr. Lawrence supported his
opinion with specific citations to the evidence of record and stated his opinion as to Plaintiff’s
capabilities in work-related functional terms. Tr. 29. Furthermore, state agency consultants, such as
Dr. Lawrence, are highly qualified experts in Social Security disability evaluations, and an ALJ is
entitled to rely on their opinions. Christina v. Colvin, 594 F. App’x 32, 33 (2d Cir. 2015); see also 20
C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i) (“State agency medical and psychological consultants
. . . are highly qualified physicians, psychologists, and other medical specialists who are also experts
in Social Security disability evaluation.”). Furthermore, Dr. Auerbach assessed that Plaintiff could
perform medium work with lifting no more than fifty pounds occasionally and twenty pounds
frequently (Tr. 393, 394), and Mr. Howard assessed that Plaintiff could perform light work (Tr. 550).
Plaintiff’s contention that Dr. Lawrence’s opinion was “stale” is unpersuasive. See ECF No.

12-1 at 20-23. First, the ALJ acknowledged that the medical evidence submitted after Dr. Lawrence
made his assessment established greater limitations on Plaintiff’s ability to stand and walk than Dr.
Lawrence assessed. Tr. 29. However, the ALJ also noted that while Plaintiff’s ability to stand and walk
had deteriorated since Dr. Lawrence’s assessment that Plaintiff could stand/walk for six hours out of
an eight-hour workday, subsequent evidence showed that Plaintiff could stand/walk for four hours of
an eight-hour workday, which is consistent with the limitation the ALJ assessed in his RFC finding.
Tr. 28, 29. See Hernandez v. Colvin, 15-CV-6764, 2017 WL 2224197, *9 (W.D.N.Y. 2017) (citing
Camille v. Colvin, 652 F. App'x 25, 28 n.4 (2d Cir. 2016) (summary order)) (“[A] medical opinion is
[not] stale merely because it pre-dates other evidence in the record, where . . . the subsequent evidence

does not undermine [the opinion evidence].”). For instance, Dr. Sheikh observed that Plaintiff walked
with a normal gait and demonstrated full muscle strength throughout his arms and legs. Tr. 577, 582,
584, 588. Plaintiff told Mr. Howard that he could stand for thirty-five minutes at a time as well as walk
for forty-five minutes continuously. Tr. 557. Moreover, subsequent substantial evidence supports Dr.
Lawrence’s assessment that Plaintiff could lift/carry twenty pounds. Tr. 66. Plaintiff testified that he
could lift thirty pounds. Tr. 44. Likewise, Dr. Cicoria assessed that Plaintiff could lift thirty pounds.
Tr. 568. Because substantial evidence supports the ALJ’s RFC determination that Plaintiff could
stand/walk for four hours of an eight-hour workday, as well as lift/carry twenty pounds, Plaintiff’s
argument fails. Tr. 28.
Plaintiff’s contention that the ALJ erred when he did not address Mr. Howard’s assessment
that Plaintiff had significant limitations in handling, fingering, and stooping likewise fails. See ECF
No. 12-1 at 10-15 (citing Tr. 550). Although an ALJ must consider all relevant evidence, this does
not mean that the ALJ must specifically address each piece of evidence in his decision. See
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (“We of course do not suggest that every
conflict in a record must be reconciled by the ALJ or the [Commissioner] . . .”). “It is enough that

the ALJ noted that he carefully considered the exhibits presented in evidence in reaching his
decision,” Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981), and that “the crucial factors in any
determination [are] set forth with sufficient specificity to enable [the court] to decide whether the
determination is supported by substantial evidence.” Ferraris, 728 F.2d at 587. See Mongeur, 722
F.2d at 1040 (“when the evidence of record permits us to glean the rationale of the ALJ’s decision,
we do not require that [the ALJ] have mentioned every item of testimony presented to him or have

explained why he considered particular evidence unpersuasive or insufficient to lead him to a
conclusion of disability.”); see also Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir.
2012) (“Indeed, even if the ALJ was not as explicit in his reasoning on this issue as possible, an
ALJ does not have to state on the record every reason justifying a decision, nor is an ALJ required
to discuss every piece of evidence submitted.”); Gladney v. Astrue, No. 12-cv-6423P, 2014 WL
3557997, *10 (W.D.N.Y. 2014) (even where ALJ could have more fully articulated the basis for
his conclusion, any such failure was harmless, where it was “possible to glean the ALJ’s rationale”
from a review of the entire decision). Reviewing the entire decision in this case, the Court is able
to glean the ALJ’s rationale as to the limitations assessed.
Moreover, there is no requirement that the ALJ accept every limitation in a medical source’s

opinion. See Pellam v. Astrue, 508 F. App’x 87, 89 (2d Cir. 2013) (holding that the ALJ properly
declined to credit certain conclusions in a medical source’s opinion that were inconsistent with other
evidence of record). Here, Mr. Howard’s assessment was inconsistent with other substantial evidence
of record as well as Plaintiff’s admission that he worked as a painter which would presumably require
frequent stooping, handling and fingering. See 20 C.F.R. § 404.1527(c)(4) (“[g]enerally, the more
consistent a medical opinion is with the record as a whole, the more weight we will give that medical
opinion.”). Notably, Dr. Lawrence assessed that Plaintiff had no manipulative limitations. Tr. 66, 67.
Also, on his activities of daily living questionnaire, Plaintiff reported that he cooked meals, cleaned
house, and folded laundry. Tr. 189-93. Plaintiff also testified that he could drive a car, as well as sweep
and mop floors. Tr. 44, 46-47, 52, 53-54. See Wavercak v. Astrue, 420 F. App’x. 91, 94 (2d Cir. 2011)
(ALJ is not required to defer to a medical source’s assessment if the source’s assessment conflicted
with plaintiff’s description of his daily activities). Significantly, on his activities of daily living
questionnaire, Plaintiff reported that he had no difficulty using his hands. Tr. 194. Accordingly,
substantial evidence demonstrates that Plaintiff did not have significant handling, fingering, and/or
stooping limitations. Plaintiff’s argument therefore fails.
Next, Plaintiff argues that the ALJ erred when he determined that Plaintiff’s right shoulder

condition was not a severe impairment. See ECF No. 12-1 at 15-17. At the second step of the
sequential evaluation, an ALJ considers whether the claimant has at least one severe impairment
or combination of impairments that meets the twelve-month durational requirement for
establishing disability. See 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is severe if it
“significantly limits [the claimant’s] physical or mental ability to do basic work activities.” See 20
C.F.R. §§ 404.1522(a) (defining “non-severe” impairments). If the claimant does not have any
severe impairments, then the claimant is not disabled, and the sequential evaluation ends. Id.
However, if the claimant has at least one severe impairment or combination of impairments, then
the evaluation continues, and the ALJ considers all impairments and symptoms when evaluating
RFC. See 20 C.F.R. § 404.1529, 404.1545(a)(2).

Furthermore, it is Plaintiff’s burden to demonstrate that he has a severe impairment. Green-
Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). The mere presence of an impairment, or
that a person has been diagnosed and/or treated for an impairment is not, by itself, sufficient to
render a condition severe. Prince v. Astrue, 514 F. App’x 18, 20 (2d Cir. 2013); see Bergeron v.
Astrue, No. 09-CV-1219, 2011 WL 6255372, at *3 ((N.D.N.Y. Dec. 14, 2011) (quoting McConnell
v. Astrue, No. 6:03-CV-0521, 2008 WL 833968, at *2 (N.D.N.Y. Mar. 27, 2008)) (“The ‘mere
presence of a disease or impairment, or establishing that a person has been diagnosed or treated
for a disease or impairment’ is not, itself, sufficient to deem a condition severe.”). Instead, a
claimant must demonstrate an impairment that “significantly limits [his] physical or mental ability
to perform basic work activities.” Barnhart v. Thomas, 540 U.S. 20, 25 (2003).
Here, Plaintiff’s medical sources neither observed nor assessed any right shoulder
condition that significantly limited his ability to perform basic work activities. See Dumas v.

Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (The Commissioner “is entitled to rely not only on
what the record says, but also on what it does not say[.]”) (citing Miles v. Harris, 645 F.2d 122,
124 (2d Cir. 1981))); see also Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995). Notably, Dr.
Lawrence assessed that Plaintiff had no manipulative (e.g., reaching) limitations. Tr. 66, 67. Dr.
Barnes observed that Plaintiff’s right arm exhibited full ranges of motion except that he could not
reach behind his back. Tr. 262. Mr. Howard observed that Plaintiff demonstrated full ranges of
motion throughout his arms (Tr. 555) and assessed that Plaintiff had no reaching restrictions (Tr.
558). In fact, Plaintiff told Mr. Howard, and subsequently testified, that he worked as a painter
throughout the summer of 2019. Tr. 40, 557. Nor did the objective evidence show any right
shoulder condition that would significantly limit Plaintiff’s ability to do basic work activities. For

instance, x-rays of Plaintiff’s right shoulder were unremarkable except for a slight spur formation
at the acromioclavicular joint. Tr. 579. Because Plaintiff has failed to show that his right shoulder
condition significantly limited his ability to do basic work activity, his contention fails.
In his final point of error, Plaintiff argues that the RFC lacked evidentiary support from a
competent medical opinion, and therefore, the ALJ substituted his own “medical” judgment
regarding Plaintiff’s physical limitations. See ECF No. 12-1 at 17. However, Plaintiff’s argument
wrongly presumes that RFCs are medical determinations and thus, outside the ALJ’s expertise. As
explained above, RFC is an administrative finding, not a medical one. Ultimately, an ALJ is tasked
with weighing the evidence in the record and reaching an RFC finding based on the record as a
whole. See Tricarico v. Colvin, 681 F. App’x 98, 101 (2d Cir. 2017) (citing Matta, 508 F. App’x
at 56). The regulations explicitly state that the issue of RFC is “reserved to the Commissioner”
because it is an “administrative finding that [is] dispositive of the case.” 20 C.F.R. §§ 404.1527(d),
416.927(d). The ALJ “will assess your residual functional capacity based on all of the relevant

medical and other evidence,” not just medical opinions. 20 C.F.R. § 404.1545(a); 20 C.F.R. §§
404.1513(a)(1), (4), 416.913(a)(1), (4) (explaining that evidence that can be considered includes
objective medical evidence, such as medical signs and laboratory findings; as well as evidence
from nonmedical sources, including the claimant, such as from forms contained in the
administrative record).
Thus, opinion evidence is only one type of evidence that an ALJ is required to consider.
See 20 C.F.R. §§ 404.1520(e), 416.920(e) (“we will assess the residual functional capacity based
on all the relevant medical and other evidence in your case record”); 20 C.F.R. §§ 404.1545(a)(3),
416.945(a)(3) (explaining that the adjudicator will assess the RFC based on all the relevant
evidence in the case record); 20 C.F.R. §§ 404.1513(a)(1),(4), 416.913(a)(1),(4) (explaining that

evidence that can be considered includes objective medical evidence, such as medical signs and
laboratory findings; as well as evidence from nonmedical sources, including the claimant, such as
from forms contained in the administrative record). Matta, 508 F. App’x at 56 (“Although the
ALJ’s conclusion may not perfectly correspond with any of the opinions of medical sources cited
in his decision, he was entitled to weigh all of the evidence available to make an RFC finding that
was consistent with the record as a whole.”). Furthermore, it is the responsibility of the ALJ to
resolve conflicts in the evidence and to weigh the evidence available to make an RFC finding that
is consistent with the record as a whole. See Corbiere v. Berryhill, 760 F. App’x 54, 57 (2d Cir.
2019) (holding that the ALJ properly resolved conflicts in the medical evidence after considering
the record in its entirety).
As discussed above, the ALJ did not rely solely on the medical opinion evidence in
reaching his RFC finding. In addition to properly evaluating the opinion evidence, the record here

reflects that the ALJ also relied on other objective medical evidence in the record, as well as
Plaintiff’s reported activities of daily living. For example, the generally unremarkable physical
examination findings of Drs. Pollina, Hughes, Sheikh, and Fishkin supported the ALJ’s RFC
determination. Throughout the relevant period, Drs. Pollina, Hughes, Sheikh, and Fishkin
consistently observed that Plaintiff walked with a normal gait and demonstrated full muscle
strength throughout his arms and legs. Tr. 273, 383, 582, 577, 588, 678.
Plaintiff’s activities of daily living also supported the ALJ’s RFC determination. 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)); 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 April 2019, Plaintiff completed a questionnaire regarding his activities of daily living.
Tr. 189-98. Plaintiff reported that he took care of his infant daughters, took care of his personal
hygiene and grooming needs, cooked meals, house cleaned, folded laundry, drove a car, went out
for walks, shopped in stores, read, watched television, and socialized. Tr. 189-93. Plaintiff further
reported that he could lift twenty pounds. Tr. 194. Furthermore, at his January 7, 2020
administrative hearing, Plaintiff testified that he could lift thirty pounds, drive a car, take care of
his two young daughters, wash laundry, sweep and mop floors, and walk for thirty minutes at a
time. Tr. 44, 46-47, 52, 53-54. Likewise, Plaintiff told Dr. Auerbach that his typical day consisted

of doing housework, cooking, cleaning, and shopping; taking care of his two small children;
looking for a job; and attending physical therapy, doing home exercises, and going to a gym and
swimming. Tr. 392, 393. Also, Plaintiff told Dr. Hughes that he could lift twenty pounds as well
as drive for thirty minutes at a time. Tr. 382. There is abundant evidence to support the ALJ’s RFC.
As detailed above, substantial evidence in the record supports the ALJ’s RFC finding.
When “there is substantial evidence to support either position, the determination is one to be made
by the fact-finder.” Davila-Marrero v. Apfel, 4 F. App’x 45, 46 (2d Cir. Feb. 15, 2001) (citing
Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)). While Plaintiff may disagree with the ALJ’s
conclusion, Plaintiff’s burden was to show that no reasonable mind could have agreed with the
ALJ’s conclusions, which he has failed to do. 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.” Brault, 683 F.3d at 448 (emphasis in the original). As the Supreme Court
explained in Biestek v. Berryhill, “whatever the meaning of ‘substantial’ in other contexts, the
threshold for such evidentiary sufficiency is not high” and means only “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.
Ct. 1148, 1154 (2019) (internal citations omitted).
For all the reasons discussed above, the Court finds that the ALJ properly considered entire
record, including the treatment reports, the medical opinions, and Plaintiff’s mostly routine and
conservative care, as well as Plaintiff’s activities of daily living, and the ALJ’s findings are
supported by substantial evidence. Accordingly, the Court finds no error.
CONCLUSION
Plaintiff's Motion for Judgment on the Pleadings (ECF No. 12) 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.

k { ye A / Pct
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364822. Public record. Not legal advice.