Vazquez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

WILLIAM V., SR., §

§

Plaintiff, §

§

v. § Case # 1:20-cv-1666-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM

§ DECISION AND ORDER

Defendant. §

INTRODUCTION

Plaintiff William V., Sr. (“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. 20).

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

Procedure 12(c). See ECF Nos. 15, 18. Plaintiff also filed a reply brief. See ECF No. 19. For the

reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 15) is

DENIED, and the Commissioner’s motion for judgment on the pleadings (ECF No. 18) is

GRANTED.

BACKGROUND

Plaintiff protectively filed an application for DIB on December 6, 2017, alleging disability

beginning January 13, 2015 (the disability onset date), due to a a back injury and coronary artery

disease. Transcript (“Tr.”) 107-108, 170-171, 203. Plaintiff’s claim was denied initially on March

7, 2018 (Tr. 109-13), after which he requested an administrative hearing (Tr. 116-117). On October

31, 2019, Administrative Law Judge Mary Mattimore (the “ALJ”) held a hearing in Buffalo, New

York. Tr. 11, 49-95. Plaintiff appeared and testified from Olean, New York, and was represented

by Lewis Schwartz, an attorney. Tr. 11. Jay Steinbrenner, an impartial vocational expert (“VE”),

appeared and testified telephonically. Tr. 11.

On November 25, 2019, the ALJ issued a partially favorable decision finding Plaintiff

disabled beginning on the date of the decision, November 25, 2019, and not disabled between

January 13, 2015 and November 24, 2019. Tr. 11-21. On October 13, 2020, the Appeals Council

denied Plaintiff’s request for further review. Tr. 1-5. The ALJ’s November 25, 2019 decision thus

became the “final decision” of the Commissioner subject to judicial review under 42 U.S.C. §

405(g).

LEGAL STANDARD

I. District Court Review

“In reviewing a final decision of the SSA, this Court is limited to determining whether the

SSA’s conclusions were supported by substantial evidence in the record and were based on a

correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing 42 U.S.C. §

405(g)) (other citation omitted). The Act holds that the Commissioner’s decision is “conclusive”

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

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

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

omitted). It is not the Court’s function to “determine de novo whether [the claimant] is disabled.”

Schaal v. Apfel, 134 F. 3d 496, 501 (2d Cir. 1990).

II. The Sequential Evaluation Process

An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71

(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful

work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ

proceeds to step two and determines whether the claimant has an impairment, or combination of

impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant

restrictions on the claimant’s ability to perform basic work activities. Id. § 404.1520(c). If the

claimant does not have a severe impairment or combination of impairments meeting the durational

requirements, the analysis concludes with a finding of “not disabled.” If the claimant does, the

ALJ continues to step three.

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

equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the

“Listings”). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing

and meets the durational requirement, the claimant is disabled. Id. § 404.1509. If not, the ALJ

determines the claimant’s residual functional capacity, which is the ability to perform physical or

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

impairments. See id. § 404.1520(e)-(f).

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

him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).

If the claimant can perform such requirements, then he or she is not disabled. Id. If he or she

cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the

Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the

Commissioner must present evidence to demonstrate that the claimant “retains a residual

functional capacity to perform alternative substantial gainful work which exists in the national

economy” in light of his or her age, education, and work experience. See Rosa v. Callahan, 168

F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

ADMINISTRATIVE LAW JUDGE’S FINDINGS

The ALJ analyzed Plaintiff’s claim for benefits under the process described above and

made the following findings in her November 25, 2019 decision:

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

September 30, 2020.

2. The claimant has not engaged in substantial gainful activity since the alleged onset date

(20 CFR 404.1571 et seq.).

3. Since the alleged onset date of disability, January 13, 2015, the claimant has had the

following severe impairments: degenerative disc disease of the lumbar and thoracic spines

with radiculopathy, spondylosis, and myositis, status post thoracic fusion, and obesity (20

CFR 404.1520(c)).

4. Since January 13, 2015, the claimant has not had 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 and 404.1526).

5. Since January 13, 2015, the claimant has the residual functional capacity to perform

sedentary work as defined in 20 CFR 404.1567(a)1 except he can lift and or carry a

maximum of 5 lbs.; never reach overhead bilaterally; never climb ropes, ladders, scaffolds;

frequently operate foot controls bilaterally; frequently reach in other directions (front and

laterally) bilaterally; occasionally push and pull bilaterally; occasionally stoop, kneel,

crouch, crawl, climb ramps, and climb stairs; and have no exposure to temperature

extremes, unprotected heights, or hazardous machines. He requires the freedom to change

positions every 30 minutes while on task and at the workstation.

6. Since January 13, 2015, the claimant has been unable to perform any past relevant work

(20 CFR 404.1565).

7. Prior to the established disability onset date, the claimant was a younger individual age 18-

44 and 45-49. Applying the age categories non-mechanically, and considering the

1 “Sedentary” work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like

docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain

amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and

standing are required occasionally and other sedentary criteria are met.

additional adversities in this case, on the date of this decision, the claimant’s age category

changed to an individual closely approaching advanced age (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. Prior to the date of this decision, 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. Beginning on the date of this decision, the claimant has not been

able to transfer job skills to other occupations (See SSR 82-41 and 20 CFR Part 404,

Subpart P, Appendix 2).

10. Prior to the date of this decision, the date the claimant’s age category changed, considering

the claimant's age, education, work experience, and residual functional capacity, there were

jobs that existed in significant numbers in the national economy that the claimant could

have performed (20 CFR 404.1569 and 404.1569a).

11. Beginning on the date of this decision, the date the claimant’s age category changed,

considering the claimant's age, education, work experience, and residual functional

capacity, there are no jobs that exist in significant numbers in the national economy that

the claimant could perform (20 CFR 404.1560(c) and 404.1566).

12. The claimant was not disabled prior to the date of this decision but became disabled on that

date and continues to be disabled (20 CFR 404.1520(g)).

Tr. 11-20.

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

and disability insurance benefits protectively filed on December 6, 2017, the claimant has been

disabled under sections 216(i) and 223(d) of the Social Security Act beginning on the date of this

decision. Tr. 21.

ANALYSIS

Plaintiff asserts three points of error. First, Plaintiff argues that the ALJ’s RFC finding with

regard to a sit/stand option was not based on substantial evidence. See ECF No. 15-1 at 14-19.

Next, Plaintiff argues that the ALJ erred in selectively rejecting the favorable portions from the

opinions of Edward Simmons, M.D. (“Dr. Simmons”), and Elizabeth Printup, FNP (“Ms.

Printup”). See id. at 20-22. Finally, Plaintiff argues that the ALJ failed to consider the opinion of

John Halpenny, M.D. (“Dr. Halpenny”), who conducted an independent medical evaluation

(“IME”) in relation to Plaintiff’s worker’s compensation claim. See id. at 22-24.

In response, the Commissioner argues that the ALJ fulfilled her responsibility to assess the

opinions and other evidence of record and arrived at an RFC finding that was supported by

substantial evidence in the record as a whole, including the opinion of consultative examiner

Michael Rosenberg, M.D. (“Dr. Rosenberg”), the findings of state agency medical consultants D.

Brauer, M.D, (“Dr. Brauer”), and David Braverman, M.D. (“Dr. Braverman”), Plaintiff’s

treatment records, and his self-reported activities. See ECF No. 18-1 at 6-16. Further, argues the

Commissioner, substantial evidence supports the sit/stand option in the RFC finding, consistent

with the jobs identified at step five. See id. at 9-13. The Commissioner also argues that contrary to

Plaintiff’s contention, the ALJ explicitly considered Dr. Halpenny’s September and October 2017

IME reports. See id. at 14.

A Commissioner’s determination that a claimant is not disabled will be set aside when the

factual findings are not supported by “substantial evidence.” 42 U.S.C. § 405(g); see also Shaw v.

Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence has been interpreted to mean “such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The

Court may also set aside the Commissioner’s decision when it is based upon legal error. Rosa, 168

F.3d at 77.

Upon review of the record in this case, the Court finds that the ALJ appropriately analyzed

the opinion evidence, as well as Plaintiff’s treatment records and his reported activities of daily

living, and reasonably concluded that, despite his impairments, Plaintiff was capable of performing

a reduced range of sedentary work. Accordingly, the Court finds that the ALJ’s RFC determination

was supported by substantial evidence.

The record reflects that Plaintiff injured his back at work on July 18, 2014, while pulling a

pallet. Tr. 293. He reported that he slipped and fell on his back and/or buttocks, after which he

heard a “pop” in his lower back and experienced “immediate” pain in his lower lumbar area. Tr.

531, 791. He was treated conservatively with physical therapy and ibuprofen and returned to work.

Tr. 273-76, 293. On January 13, 2015, Plaintiff fell on ice which led to severe accelerated pain in

the lumbar and lower thoracic region. Tr. 170, 293.

Plaintiff reported that Ms. Printup at Foothill Medical Group (“Foothill Medical”) had been

his primary care provider since 2014, and he sees her for “everything.” Tr. 208. Plaintiff treated

with Foothill Medical on a regular basis through 2019. Tr. 542-74, 678-97. During this time period

he had a total of 19 appointments, 12 of which were with Ms. Printup. Tr. 542-548, 566-74, 679-

97.

On March 3, 2015, Plaintiff initiated pain management treatment with Eugene Gosy, M.D.

(“Dr. Gosy”). Tr. 293-95. Plaintiff reported severe pain in his lumbar and thoracic spine. Tr. 293.

On examination, Plaintiff showed spinal tenderness, diminished lumbar lordosis, hypoactive

reflexes, and weakness in the legs, but he still showed 5/5 upper extremity strength, negative

straight leg raise (“SLR”) testing at times, and intact sensation. Tr. 294. Dr. Gosy ordered a

thoracic MRI and started Plaintiff on Tizandine for mechanical pain and hydrocodone for

incidental pain. Tr. 295. Dr, Gosy opined that Plaintiff was 66% temporarily disabled. Tr. 295.

Although Plaintiff reported starting treatment with Dr. Simmons in 2015 (Tr. 209), the

earliest report. in the record is from May 23, 2016 (Tr. 451). At that visit, Plaintiff was “quite

symptomatic with ongoing thoracic discogenic pain and associated radicular symptoms around

both chest wall.” Tr. 451. Lateral bending and twisting movements were painful, and range of

motion (“ROM”) in the thoracolumbar spine was restricted, with 30% flexion, 20% extension, and

20% lateral bending to the left and right. Tr. 452. Dr. Simmons noted that Plaintiff was going to

undergo a fusion from T5 to T12 and opined that he had a temporary 100% impairment. Tr. 452.

An MRI of the thoracic spine taken on March 25, 2015 revealed mild bulging at T5-6, T7-

8, and T9-10. Tr. 291. There were also compression fractures from T6 to T11. Id. On April 9,

2015, Plaintiff underwent a facet block at L4-5 and L5-S1. Tr. 297. He reported that the procedure

provided 50% relief in the lumbar region for several days, but the pain had returned. Id.

On August 10, 2015, Plaintiff treated with Christine Klemp, FNP-C (“Ms. Klemp”), in Dr.

Gosy’s office. Tr. 296-98. He was experiencing a sharp, stabbing, soreness in the lumbar spine

which was exacerbated with attempts to get out of bed, and with sitting or standing, even for brief

periods of time. Tr. 296. He had leg weakness and reported falling recently, and his pain was

greater than 10/10 on the visual analog scale at times. Id.

Plaintiff followed up with Ms. Klemp on October 12, 2015. Tr. 300-02. Plaintiff reported

that he was unable to fill his prescription for hydrocodone because it was not covered by Workers

Compensation. Tr. 300. He reported lumbar pain that extended into the thoracic region in an

intense, stabbing, sharp pain, and standing, lifting, sitting or walking for prolonged periods of time

increased his pain level. Id. Ms. Klemp continued Plaintiff on Robaxin and Lidocaine for pain (Tr.

301-302), and she requested approval for hydrocodone (Tr. 302).

On February 18, 2016, Plaintiff followed up with Tanya Geist, RPA-C (“Ms. Geist”), in

Dr. Simmons’ office. Tr. 448. Workers Compensation had not authorized the recommended

surgery, and Plaintiff continued to have severe pain through his mid and lower thoracic spine

radiating to his chest walls. Id. On physical examination, Plaintiff had a “very guarded posture”

and “ambulate[d] with a slow cautious gait.” Tr. 449. There was significant tenderness and

hypersensitivity over the thoracic spine, and Plaintiff had decreased ROM in the lumbar spine. Id.

449). Ms. Geist again requested authorization from Workers Compensation for a posterolateral

fusion from T5-T12. Id. She opined that Plaintiff had a total disability with regards to his regular

work and a marked partial disability with regards to all work Tr. 450.

On June 8, 2016, Plaintiff underwent posterior T5-T12 fusion surgery. Tr. 350-55.

Thereafter, on June 13, 2016, he had a post-operative follow-up visit with Andrew Dybalski, RPA-

C (“Mr. Dybalski”), in Dr. Simmons’ office. Tr. 418-21. Plaintiff was using a cane to ambulate;

he was wearing a TLSO brace; and his wound was healing. Tr. 419-20. Mr. Dybalski noted that

Plaintiff should continue to avoid any bending or twisting of his thoracic spine and opined that

Plaintiff was temporarily totally disabled from all work. Tr. 420.

On June 22, 2016, Plaintiff followed up with Ms. Geist and reported intermittent episodes

of positional severe right shoulder pain. Tr. 422. At a subsequent follow-up visit on July 21, 2016,

Plaintiff reported using oxycodone up to 6 tablets per day and methocarbamol three times per day

due to consistent spasms. Tr. 425. He had a somewhat forward flexed posture and ambulated with

a stable gait. Tr. 426.

On October 12, 2016, Plaintiff followed up with Ms. Geist. Tr. 429-32. He reported that

Worker’s Compensation denied his pain medication six weeks after surgery. Tr. 429. He was

having difficulty with all activities of daily living, including standing, sitting and walking, and he

also reported loss of sleep due to pain. Id. He was wearing his back brace and reported using his

external bone stimulator daily. Tr. 429-30. Ms. Geist prescribed pain medication and again opined

that Plaintiff had a 100% temporary impairment. Tr. 431.

Plaintiff followed up with Dr. Simmons on January 12, 2017 (seven months post-op). Tr.

433-35. Plaintiff reported that he had very good relief of his radicular pain but was still having

residual pain in the midline thoracic region. Tr. 433, 434. He was still using his back brace. Tr.

433. Dr. Simmons opined that Plaintiff could ambulate as much as he wished but to be careful with

his body movements and activities. Tr. 434. He still opined that Plaintiff was temporarily 100%

impaired due to his work-related injury. Tr. 435.

On February 8, 2017, Plaintiff started physical therapy at Olean Physical Therapy

Professionals, PLLC. Tr. 509-10. He reported tolerable post-surgical thoracic pain at 7/10. Tr. 509.

His symptoms increased while bending, sitting, and standing, and he reported difficulty sleeping

and limited tolerance for activity. Id. His goal was to restore pain-free functional mobility and

increase strength. Id. He attended physical therapy sessions on February 10, 13, 17, 22, 24, 27;

March 1, 6, 8, 13, 17, 20, 22, 27, 29; May 1, 4, 8, 11, 18, 25; June 1, 21, 27, 30. Tr. 482-508.

During his course of treatment, Plaintiff reported overall decreased pain, as well as increased

strength and improved functional status. See, e.g., Tr. 494, 497, 499, 503 504, 505, At his June 1

visit, Plaintiff reported that his “back isn’t too bad as long as the weather is good.” Tr. 486.

On April 14, 2017, Plaintiff followed up with Mr. Dybalski from Dr. Simmons’ office. Tr.

436-39. He reported that he was pleased with the surgery overall but was still experiencing “good

and bad days.” Tr. 436. Mr. Dybalski noted that Plaintiff’s “degree of pain was directly related to

his activity level but [could] also be influenced by changes in weather.” Tr. 437. Plaintiff was

wearing a TLSO brace and reported he was doing aquatic physical therapy two to three times per

week. Id. Mr. Dybalski reviewed x-rays of Plaintiff’s thoracic spine and stated that the “retained

instrumentation spanning T5-T12 appears to be in satisfactory position without signs of loosening

or migration.” Tr. 438. Mr. Dybalski told Plaintiff that he could progressively increase his activity

level with tolerance to his pain and he could ride his Harley-Davidson motorcycle (which Plaintiff

described as “having a smooth ride without excessive vibrating”), but he should not excessively

bend or twist at his back. Tr. 438. Mr. Dybalski referred Plaintiff for additional physical therapy

and prescribed methocarbamol and Celebrex for pain. Id. He opined that Plaintiff had a temporary

100% impairment and a total disability with regards to his regular work and all work. Tr. 439.

Plaintiff attended a Workers Compensation IME with Dr. Halpenny on September 29,

2017. Tr. 531-35. Although Plaintiff reported some ongoing pain, he noted improvement with

surgery. Tr. 533. He also reported that he could do personal care, light housework, and vacuuming.

Id. On examination, Plaintiff showed limited ROM and pain with straight leg raise testing, but he

otherwise showed a normal gait, 4/5 to 5/5 strength, intact sensation, and good grip strength. Tr.

534. After reviewing Plaintiff’s records and performing a physical exam, Dr. Halpenny opined that

Plaintiff had reached maximum medical improvement. Tr. 535.

Similar findings were noted at another IME with Dr. Halpenny in October 2017. Tr. 536-

540. Dr. Halpenny opined that Plaintiff could return to work with the following restrictions: lifting

limit of 10 pounds occasionally; bending to floor or near the floor once an hour; stair climbing

once or twice an hour; sitting limit 20 or 30 minutes; driving limit about the same; standing limit

about 20 minutes; walking limit 20 or 25 minutes; change positions frequently; and avoid extensive

overhead work. Tr. 540.

On October 12, 2017, Plaintiff followed up with Ms. Printup. Tr. 514-15. He complained

that his back is always painful but noted that medications “help relieve pain and make it tolerable

to carry out ADLs (activities of daily living).” Tr. 514.

On November 16, 2017, Plaintiff followed up with Luke Martinic, PA-C (“Mr. Martinic”),

in Dr. Simmons’ office for a post-operative visit. Tr. 444-47. Plaintiff reported he was pleased

with the surgery as it eliminated the radiating pain to his flank; however, he continued to

experience some mid back pain that was exacerbated by the changes in the weather, sitting or

standing, and rotational movements. Tr. 444. He had completed hydro and land therapy and had

reached maximum medical improvement. Id. On examination, Plaintiff stood with a kyphotic

thoracic posture and a hypolordotic lumbar posture; he had a slightly wide-based gait pattern

without the use of any assistive device; decreased ROM; positive SLR; and reduced strength with

knee flexion/extension at 4+/5. Tr. 445. Dr. Simmons ordered a functional capacity evaluation

(“FCE”) upon Plaintiff’s request and continued to opine that Plaintiff had a temporary 100%

impairment and a temporary total disability for all work. Tr. 444-45.

On December 1, 2017, Mark Howard, PT, DPT, OCS (“Mr. Howard”) conducted an FCE

of Plaintiff. Tr. 787-99. He found that Plaintiff could never lift, carry, pull, climb, stoop, kneel,

crouch or handle; he could occasionally stand, walk, sit, push, reach and finger; and he could

frequently balance. Tr. 790. Mr. Howard noted that Plaintiff had increased pain when he tried to

lift or carry any weight and limited tolerance to static positioning and walking. Tr. 790.

On January 12, 2018, consultative examiner Michael Rosenberg, M.D. (“Dr. Rosenberg”),

examined Plaintiff in connection with his claim for Social Security Disability benefits. Tr. 645-48.

Examination findings included a normal gait and stance, ability to squat fully and rise from a chair

without difficulty, and full (5/5) motor strength with no evident muscle atrophy in upper and lower

extremities. Tr. 646. Dr. Rosenberg diagnosed mild back pain with limited range of motion and

obesity (Tr. 647) and assessed mild restrictions for activity that required prolonged uninterrupted

bending and heavy lifting and carrying secondary to his mild back pain, and mild restrictions for

activities that require carrying heavy objects, performing overhead activity, and activity requiring

pulling, pushing, reaching or repetitive use of the arms as range of motion of shoulders elicits back

pain (Tr. 648).

On February 2, 2018, Plaintiff had a follow-up visit with Dr. Simmons to discuss his level

of permanent impairment for Workers Compensation. Tr. 763-66. Dr. Simmons noted that Plaintiff

could not perform his past work as a truck driver (Tr. 763), but he discussed the possibility that

Plaintiff could find work at the sedentary level where he could change positions between sitting

and standing as needed, with no bending or lifting requirements (Tr. 763-764). Thereafter, on April

6, 2018, Dr. Simmons noted that since the surgery, Plaintiff reported good relief of the radiating

radicular symptoms around his chest walls and some relief of the severe thoracic axial pain, but he

continued to have discomfort throughout the thoracic region which limits his activities. Tr. 655.

Dr. Simmons opined that Plaintiff could lift up to 5 pounds. Id. The record indicates that Plaintiff

continued treating with Dr. Simmons through July 2019. See Tr. 756-58; 749-55; 742-48); 739-

41, 735-38.

On May 9, 2018, Plaintiff had a Workers Compensation follow-up visit with Ms. Printup,

wherein Ms. Printup repeated Dr. Simmons’ February 2018 assessment that Plaintiff would need

a job with frequent position changing between sitting and standing with no bending or lifting. Tr.

691-92. The record indicates that Plaintiff continued treating with Ms. Printup through 2018 and

2019. See Tr. 678-90.

As noted above, Plaintiff argues that the ALJ did not properly consider the medical opinion

evidence and arrived at an RFC finding that was not based on substantial evidence. See ECF No.

15-1 at 14-24. 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).

Furthermore, 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 December 6, 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).

Here, the ALJ complied with the regulations, and contrary to Plaintiff’s contention (see

ECF No.15-1 at 18, 21-22), the ALJ considered the most important factors of supportability and

consistency and found the opinion of Dr. Simmons and Ms. Printup that Plaintiff should be limited

to work with frequent position changes between sitting and standing with no bending and lifting

only “somewhat persuasive. Tr.” 17-18, 691, 704-05. Considering the relevant factors, the ALJ

reasonably found that the opinion that Plaintiff could do no lifting was inconsistent with the overall

record, including Plaintiff’s improvement after surgery, full (5/5) upper extremity strength, and

ability to perform activities of daily living such as light cleaning and cooking. Tr. 18, 62, 66-67,

69-72, 215-19, 433-34, 440, 533-34, 646-47. See 20 C.F.R. § 404.1520c(c)(1)-(2) (explaining that

the “more relevant the objective medical evidence and supporting explanations presented by a

medical source are to support his or her medical opinion(s)” and the “more consistent a medical

opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the

claim, the more persuasive the medical opinion(s) . . . will be.”).

For these same reasons, the ALJ found more persuasive the April 2018 statement from Dr.

Simmons that Plaintiff could lift up to five pounds, and the ALJ therefore included this limitation

in the RFC finding. Tr. 18, 655. In addition, Dr. Simmons checked a form box for “occasional”

sitting (Tr. 706, 765), but at the same time he narratively assessed that Plaintiff could perform

sedentary work where he could change position between sitting and standing as needed (Tr. 704-

05, 763-64). As Plaintiff notes, sedentary work generally requires sitting for about 6 hours of an

8-hour workday, while occasional sitting is defined as sitting for up to 1/3 of the workday, or 2

hours and 40 minutes. See ECF No. 15-1 at 22 (citing SSR 96-9p).

The premise of Plaintiff's argument is that a moderate sitting limitation is inconsistent with

sedentary work, and therefore demanded additional functional restrictions beyond what the ALJ

included. However, that is not necessarily the case. Sedentary work requires an individual to

“remain in a seated position for approximately 6 hours of an 8-hour workday, with a morning

break, a lunch period, and an afternoon break at approximately 2–hour intervals.” Natasha D. v.

Comm’r of Soc. Sec., No. 19-CV-515, 2020 WL 1862966, at *9 (N.D.N.Y. Apr. 13, 2020). It does

not require a worker “to sit without moving for six hours, trapped like a seat-belted passenger in

the center seat on a transcontinental flight.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004);

see also Carroll v. Colvin, No. 13-CV-456S, 2014 WL 2945797, *4 (W.D.N.Y. June 30, 2014)

(noting that several courts “have upheld an ALJ’s decision that the claimant could perform light

or sedentary work even when there is evidence that the claimant had moderate difficulties in

prolonged sitting or standing”); Lisa P. v. Comm’r of Soc. Sec., No. 19-CV-1155-FPG, 2021 WL

826715, at *3-4 (W.D.N.Y. March 4, 2021) (finding no error where ALJ implicitly adopted

consultative examiner’s “moderate” sitting limitation into RFC finding for sedentary work and

collecting cases). Thus, the ALJ reasonably concluded that Dr. Simmons and Ms. Printup’s

notation of the need for frequent or as needed position changes with no bending (Tr. 691, 705) was

not inconsistent with the RFC finding for a reduced range of sedentary work. Tr. 17-18.

Furthermore, Dr. Simmons did not quantify or further define the term “frequent” in his

February 2018 opinion (Tr. 705), and he did not specifically include any limitation regarding

position changes in his subsequent notation in April 2018 (Tr. 655). 17-18. Plaintiff suggests that

the ALJ based the 30-minute position change limitation in the RFC on VE testimony. See ECF

No. 15-1 at 18 (citing Tr. 89-90). However, in response to a specific question from Plaintiff’s

attorney, the VE further testified that the same jobs could also be performed with the need to

change position between sitting and standing every 20 minutes; yet, the ALJ ultimately did not

incorporate that further limitation, even though such would have been fully consistent with the

jobs identified by the VE at step five. Tr. 14, 90-91.

In addition to considering the opinions from Dr. Simmons and Ms. Printup, other

substantial evidence supports the RFC finding that Plaintiff could sit for 30 minutes at a time, or

even 20 minutes at a time (consistent with the jobs identified at step five), before needing to switch

to standing. For example, in December 2017, Plaintiff reported to physical therapist Mr. Howard

that he could sit for 60 minutes with frequent weight shifts before he required a positional change,

and Plaintiff demonstrated during Mr. Howard’s FCE that he could sit for 20 minutes. Tr. 18, 797.

In March 2019, cardiologist John Visco, M.D. (“Dr. Visco”), also examined Plaintiff and noted

that “his activities are certainly limited in the sense that he is not able to walk fast, and he finds it

much more comfortable to sit and smoke a cigarette [than] he does to get off his butt[ocks] and

move.” Tr. 721. In July 2019, Dr. Visco noted that Plaintiff was able to complete a stress test

during which “he exercised and did quite well,” and at that time denied chest discomfort and was

“fully active.” Tr. 733.

In addition, later treatment records from Dr. Simmons indicated that trigger point injections

helped Plaintiff’s symptoms to some extent, and Plaintiff was increasing his activity level as

tolerated. Tr. 731, 742. Moreover, as the ALJ noted, Plaintiff testified during the October 2019

hearing that he applied online for “hundreds of [truck dispatching] jobs” that would allow him to

sit and stand for 20 minutes at a time. Tr. 15, 19, 61-62, 65-66. Plaintiff also testified that he was

able to drive to appointments and the store, and he drove to the hearing. Tr. 15, 66. This evidence

further supports the ALJ’s RFC finding for sitting 30 minutes at a time, and is consistent with the

step five jobs, which allow for even 20 minutes of sitting at a time.

Plaintiff next argues that the ALJ erred by failing to articulate her reasons for rejecting the

portion of Dr. Simmons and Ms. Printup’s opinion assessing that Plaintiff could do no bending or

stooping. See ECF No. 15-1 at 21-22 (citing Tr. 691, 704-05). However, at least one of the jobs

identified at step five—surveillance system monitor—does not involve any stooping or bending.

See Tr. 19-20, 88; Dictionary of Occupational Titles (“DOT”) No. 379.367-010 (surveillance

system monitor), 1991 WL 673244. In addition, as the VE described it, the job of telephone survey

work as it is currently performed in the national economy is “strictly sedentary” and involves using

a telephone and mouse (computer), which does not imply any significant amount of stooping or

bending. See Tr. 19-20, 88-89. Accordingly, even if the ALJ had specifically included an RFC

limitation to no stooping or bending, this would not change the outcome at step five. See Zabala

v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (holding remand not warranted without “reasonable

likelihood” that ALJ’s decision would have been different absent error); see also Shinseki v.

Sanders, 556 U.S. 396, 409-10 (2009) (party challenging agency decision must demonstrate that

error was prejudicial). Furthermore, 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).

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). 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.”).

Here, the ALJ’s RFC finding is largely consistent with the opinions of Dr. Simmons and

Ms. Printup, as well as other substantial evidence, including the treatment records, the other

medical opinion evidence, and Plaintiff’s activities of daily living. For example, as the ALJ noted,

treatment records before his thoracic fusion surgery in June 2016 showed that Plaintiff did not

require an assistive device and he maintained full (5/5) strength in his upper extremities. Tr. 15-

16, 294, 298, 301, 305, 449, 452. After his surgery, treatment records document general

improvement and stabilization, with Plaintiff reporting good relief from his radiculopathy (and

medication helped his pain) and examinations revealing a normal or slightly wider-based gait

without the use of any assistive device and generally intact neurological findings. Tr. 16, 433-34,

436-37, 441, 444-45, 545, 682-83, 705, 710, 730, 744, 750, 757, 764.

The ALJ also considered the opinions of consultative examiner Dr. Rosenberg and state

agency reviewing physicians Dr. Brauer and Dr. Braverman. Tr. 18. As the ALJ explained, Dr.

Rosenberg’s assessment of mild physical limitations (Tr. 645-46) was inconsistent with the overall

record, including Plaintiff’s history of ongoing treatment, medication, therapy, and need for

surgery. Id. The ALJ similarly found Drs. Brauer and Braverman’s opinion that Plaintiff could

perform light work was inconsistent with the overall record, including Plaintiff’s continued pain

and need for surgery, and reasonably assessed additional limitations. Tr. 18, 649-54, 656-57. Thus,

while the ALJ found portions of these opinions not persuasive, she fully considered them in her

analysis and explained her rationale for incorporating additional limitations based on her review

of the other record evidence, thus providing additional support of the RFC finding. Additionally,

as noted above, it is within the ALJ’s discretion to resolve genuine conflicts in the evidence. See

Veino, 312 F.3d at 588 (an ALJ’s duty is to resolve genuine conflicts in the record, and an ALJ is

free to reject portions of medical opinion evidence not supported by evidence of record).

Plaintiff’s final point of error argues that the ALJ failed to consider the opinions of Dr.

Halpenny. See ECF No. 15-at 22-24. However, contrary to Plaintiff’s contention, the ALJ

explicitly considered Dr. Halpenny’s September and October 2017 IME reports, which revealed

findings including a normal gait, intact sensation, and no evidence of wasting in the lower

extremities, and a conclusion that Plaintiff could return to work with limitations which were

consistent with the RFC finding. Tr. 16-17, 531-40. Specifically, Dr. Halpenny concluded that

Plaintiff could lift 10 pounds occasionally, bend to the floor or near the floor once per hour, climb

stairs once or twice per hour, sit for 20 to 30 minutes, stand for about 20 minutes, walk 20 to 25

minutes, change position frequently, and avoid extensive overhead work, which is, for all of the

same reasons discussed above, consistent with the RFC finding for a reduced range of sedentary

work and the specific jobs identified at step five. Tr. 14, 19-20, 88-89, 540.

Moreover, the ALJ reasonably and appropriately considered Plaintiff’s activities of daily

living in the RFC finding, including activities that involved sitting and standing. For example,

Plaintiff showered and dressed himself, cooked, drove a car, and did light cleaning, laundry, and

shopping. Tr. 15-18, 66-67, 69-72, 215-19, 300, 304, 438, 533-34, 545, 646. He also applied for

sedentary truck dispatch jobs that could permit him to sit and stand for 20 minutes at a time. Tr.

15, 19, 61-62, 65-66, 791. Thus, Plaintiff’s activities of daily living further support the RFC finding

for a reduced range of sedentary work. Tr. 14-18. 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.); Lewis v. Colvin, 548 F. App’x 675, 677 (2d Cir. 2013)

(ALJ’s RFC finding supported by substantial evidence including activities of daily living); 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)); see also 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).

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 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 the

entire record, including the treatment reports, the medical opinions, and Plaintiffs 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. 15) is DENIED, and the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 18) 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.

Jw J (uvvre-

DON D. BUSH

UNITED STATES MAGISTRATE JUDGE

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