Kiener v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CHARRIS K., §

§

Plaintiff, §

§

v. § Case # 1:21-cv-825-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Charris K. (“Plaintiff”) brings this action pursuant to the Social Security Act (the

“Act”), seeking review of the final decision of the Commissioner of Social Security (the

“Commissioner”), that denied her application for Disability Insurance Benefits (“DIB”) under

Title II of the Act, and her application for supplemental security income (“SSI”) under Title XVI

of the Act. See ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g),

1383(c), and the parties consented to proceed before the undersigned in accordance with a standing

order (see ECF No. 10).

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

Procedure 12(c). See ECF Nos. 7, 8. Plaintiff also filed a reply. See ECF No. 9. For the reasons set

forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 7) is DENIED, and the

Commissioner’s motion for judgment on the pleadings (ECF No. 8) is GRANTED.

BACKGROUND

Plaintiff protectively filed applications for DIB and SSI on August 14, 2019, alleging

disability beginning August 1, 2010 (the disability onset date), due to chronic obstructive

pulmonary disorder (“COPD”) and psoriasis of the feet and legs. Transcript (“Tr.”) 15, 198-205,

206-211, 223. The claims were denied initially on November 27, 2019, and again on

reconsideration on January 10, 2020, after which Plaintiff requested an administrative hearing. Tr.

15.

On November 23, 2020, Administrative Law Judge David Neumann (“the ALJ”)

conducted a telephonic hearing,1 at which Plaintiff appeared and testified and was represented by

Nicholas DiVirgilio, an attorney. Tr. 15. 33-53. Stephen B. Schmidt, an impartial vocational

expert, also appeared and testified. Id.

The ALJ issued an unfavorable decision on December 7, 2020, finding that Plaintiff was

not disabled. Tr. 15-27. On June 8, 2021, the Appeals Council denied Plaintiff’s request for further

review. Tr. 1-6. The ALJ’s December 7, 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).

1 Due to the extraordinary circumstance presented by the Coronavirus Disease 2019 (“COVID-19”) pandemic, all

participants attended the hearing by telephone. Tr. 15.

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 December 7, 2020 decision:

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

30, 2015.2

2. The claimant has not engaged in substantial gainful activity since August 1, 2010, the

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

3. The claimant has the following severe impairments: chronic obstructive pulmonary disease

(“COPD”) and psoriasis (20 CFR 404.1520(c) and 416.920(c)).).

4. The claimant does not have an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart

P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and

416.926).

5. The claimant has the residual functional capacity to perform a full range of work at all

exertional levels but with the following non-exertional limitations: avoid concentrated

pollutants, wetness, humidity and temperature extremes.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on October 15, 1963 and was 46 years old, which is defined as a

younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and

416.963).

8. The claimant has at least a high school education (20 CFR 404.1564 and 416.964).

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).

2 As the ALJ explained elsewhere in his decision, Plaintiff must establish disability on or before the date last insured

of June 30, 2015 in order to be entitled to DIB. Tr. 15-16.

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, 404.1569(a), 416.969, and 416.969(a)).

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

August 1, 2010, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. 15-26.

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

and disability insurance benefits protectively filed on August 14, 2019, the claimant is not disabled

under sections 216(i) and 223(d) of the Social Security Act. Tr. 27. The ALJ also determined that

based on the application for supplemental security income protectively filed on August 14, 2019,

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

ANALYSIS

Plaintiff asserts two points of error. Plaintiff first argues that additional evidence from

treating pulmonologist Hartwig O. Boepple, M.D. (“Dr. Boepple”), at The Pulmonary Group of

WNY, submitted for the first time to the Court, constitutes new and material evidence, and

therefore, the Court should remand this case to the Commissioner to take additional evidence. See

ECF No. 17-1 at 8-12. Plaintiff’s second point of error challenges the ALJ’s evaluation of the

November 2019 opinion of consultative examiner Nikita Dave, M.D. (“Dr. Dave”), arguing that

the ALJ’s finding that a portion of Dr. Dave’s opinion was unpersuasive was not supported by

substantial evidence. See id. at 12-15.

In response, the Commissioner argues that substantial evidence supports the ALJ’s RFC

determination. See ECF No. 8-1 at 12-18. The Commissioner also argues that the ALJ properly

considered the opinion of consultative examiner Dr. Dave. See id. at 18-19. Finally, the

Commissioner argues that remand is not warranted based on the additional evidence proffered by

Plaintiff to the Court. See id. at 19-23.

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 of the record in this case, the Court finds that the ALJ thoroughly considered

the evidence of record, including the opinion evidence and Plaintiff’s treatment history, and his

finding that Plaintiff could perform work at all exertional levels with environmental limitations

was supported by substantial evidence. Notably, the evidence shows that Plaintiff’s respiratory

impairment did not become symptomatic until six years after her alleged onset date, and over one

year after the expiration of her date last insured for DIB. Furthermore, upon review of the

additional evidence proffered by Plaintiff, the Court finds that this evidence would not alter the

ALJ’s decision, and therefore, remand is not warranted on this basis.

I. The ALJ’s RFC finding is Supported by Substantial Evidence.

As noted above, the ALJ determined that Plaintiff retained the RFC to perform work at all

exertional levels but with the following non-exertional limitations: avoid concentrated pollutants,

wetness, humidity and temperature extremes. Tr. 19-25; see 20 C.F.R. §§ 404.1520(e), 416.920(e).

A claimant’s RFC is the most she can still do despite her limitations and is assessed based on an

evaluation of all relevant evidence in the record. See 20 C.F.R. §§ 404.1520(e), 404.945(a)(1),

(a)(3); Social Security Ruling (“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 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.).

Furthermore, the burden to provide evidence to establish the RFC lies with Plaintiff—not

the Commissioner. See 20 C.F.R. §§ 404.1512(a), 416.912(a); see also Talavera v. Astrue, 697

F.3d 145, 151 (2d Cir. 2012) (“The applicant bears the burden of proof in the first four steps of the

sequential inquiry . . . .”); Mitchell v. Colvin, No. 14-CV-303S, 2015 WL 3970996, at *4

(W.D.N.Y. June 30, 2015) (“It is, however, Plaintiff’s burden to prove his RFC.”); Poupore v.

Astrue, 566 F.3d 303, 305-06 (2d Cir. 2009) (The burden is on Plaintiff to show that she cannot

perform the RFC as found by the ALJ.).

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 her claims on August 14, 2019, and therefore, the 2017 regulations are

applicable to her claims.

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’s RFC finding was supported by substantial evidence. Tr. 19-25. See 20

C.F.R. §§ 404.1527, 416.927. First, as the ALJ observed, Plaintiff alleged she was unable to work

due to COPD and psoriasis on her lower extremities, but the record reflects that she did not stop

working on that date due to her medical condition, but rather, she stopped working because she

was laid off. Tr. 20, 223. The ALJ also considered the treatment notes of record and observed that

Plaintiff had a history of COPD since at least November 2007, and was referred to a pulmonologist.

Tr. 21, 396-97. The ALJ went on to conduct a detailed review of Plaintiff’s COPD treatment over

the next several years.3

On October 6, 2010, Plaintiff followed up with pulmonologist Dr. Boepple, whom she had

not seen since 2007. Tr. 21, 409-11. She reported a “chronic smoker’s cough” especially in the

morning, but she denied any sputum or shortness of breath; she also reported that she continued to

smoke one and one-half packs of cigarettes per day. Tr. 21, 409-10. Dr. Boepple’s examination

showed normal lung respiratory rate, clear breath sounds bilaterally and no edema. Tr. 21, 410.

Pulmonary function test (“PFT”) results showed evidence of only mild obstruction, and the

remainder of Dr. Boepple’s examination was unremarkable. Tr. 21, 410, 414. Dr. Boepple

3 The Court notes that Plaintiff’s arguments focus on her COPD and not psoriasis. See generally ECF No. 7-1.

diagnosed COPD, noting that because Plaintiff was not symptomatic, he would not start her on

any bronchodilators at that time. Tr. 21, 410.

On October 14, 2010, Plaintiff followed up with primary care provider M.P. Whistler, FNP

(“Ms. Whistler”), at Cleveland Hill Medical Group. Tr. 415-17. Plaintiff reported she had been

unemployed for over a year, and was “living off [her] mom, drinking too much and smoking all

the time.” Tr. 415. Plaintiff stated that she was not interested in stopping drinking, but she would

try to quit smoking. Id. Ms. Whistler observed normal respiratory findings, as well as

unremarkable physical examination findings. Tr. 21, 416-17. She diagnosed COPD and noted that

Plaintiff was not on medications as she had no symptoms yet. Tr. 21, 417. The ALJ additionally

noted that spirometry testing performed on May 4, 2012 revealed moderate obstruction. Tr. 21,

424.

The ALJ next observed that on October 11, 2012, Plaintiff reported that her pulmonologist

would not prescribe an inhaler because she had no interest in quitting smoking and did not want

an inhaler. Tr. 21, 425. Plaintiff denied shortness of breath and felt her breathing was better since

she was not working in construction. Id. Ms. Whistler’s examination showed normal respiration

rate, no wheezing, clear lungs and demonstrated clear voice. Tr. 21, 426. The remainder of the

physical examination was unremarkable. Tr. 426-27. A chest x-ray dated October 10, 2013 was

normal. Tr. 21, 434.

During a general physical examination with Ms. Whistler on October 20, 2014, Plaintiff

denied any symptoms. Tr. 21, 454. Ms. Whistler noted wheezing and mildly decreased airflow and

diagnosed Plaintiff with COPD; however, Plaintiff declined pulmonary function testing, reported

she did not presently use an inhaler, and when counseled to stop smoking, she stated it was “not a

good time to quit.” Tr. 21, 455-56. Ms. Whistler’s physical examination was otherwise

unremarkable. Tr. 455-56.

On August 17, 2015, six weeks after the expiration of her date last insured, Plaintiff

followed up with Dr. Boepple and reported she continued to smoke one pack of cigarettes per day;

she had no complaints of shortness of breath; and she did not use inhalers. Tr. 21, 461. Dr.

Boepple’s examination showed normal respiratory rate with clear breath sounds bilaterally. Tr. 21,

462. Plaintiff was diagnosed with COPD with mild obstruction on PFT. Id. Dr. Boepple noted that

Plaintiff continued to be asymptomatic and did not use any inhalers. Id.

In August 2016, over one year after the expiration of her date last insured, Plaintiff was

seen by Jennifer Rankle, PA (“Ms. Rankle”), in Dr. Boepple’s office, and reported that she

continued to experience shortness of breath that worsened on exertion and improved with rest, and

only occasional wheezing. Tr. 22, 475. Plaintiff also reported that, although her symptoms were

noticeable, they “[did] not really interfere with her daily living.” Tr. 22, 475-76. Plaintiff, who

continued to smoke one and one-half packs of cigarettes per day, was diagnosed with COPD and

started on medications, including a rescue inhaler to use as needed. Tr. 22, 476. On February 27,

2017, Plaintiff had a follow-up visit with Dr. Boepple; she reported no complaints of shortness of

breath and did not use an inhaler. Tr. 22, 487. Dr. Boepple’s respiratory examination was

unremarkable, and PFT showed moderate obstruction with favorable bronchodilator response. Tr.

488. Dr. Boepple restarted Symbicort. Tr. 22, 488.

During the period between the expiration of Plaintiff’s June 2015 date last insured and her

August 2019 SSI application, Plaintiff continued to report no complaints of shortness of breath,

continued to smoke cigarettes, and did well on Symbicort. Tr. 22, 499. On March 28, 2018,

Plaintiff reported “she didn’t have too much shortness of breath” and only mild wheezing with

laying down; however, she had run out of medications a couple of weeks prior. Tr. 22, 502.

Examination showed no wheezing, no sputum, no chest congestion, no shortness of breath, and

clear breath sounds bilaterally. Tr. 22, 502-03. On September 24, 2018, Dr. Boepple noted that

Plaintiff had no complaints of shortness of breath and was doing well on Symbicort. Tr. 22, 525.

Dr. Boepple also noted two benign lung nodules that had been stable from 2006 to 2010, but he

also noted that Plaintiff was an “intractable smoker who remained at risk for malignancy.” Tr. 525.

Respiratory examination was normal. Tr. 526.

On May 10, 2019, Plaintiff followed up with Dr. Boepple and reported no complaints of

shortness of breath and was doing well on medication. Tr. 22, 530. Plaintiff had moderate

obstruction on PFT, but an examination continued to show no abnormalities with normal

respiratory rate, clear breath sounds bilaterally and no edema. Tr. 531. Dr. Boepple again advised

Plaintiff to quit smoking. Id.

During a follow-up visit with Dr. Boepple on November 26, 2019 (three months after filing

her SSI application), Plaintiff had no complaints of shortness of breath and reported she was doing

well on medication. Tr. 22, 705-06. Dr. Boepple observed normal respiratory findings and

continued Plaintiff’s medications. Tr. 22, 705-07. As the ALJ noted, a CT scan in February 2020

revealed stable nodule with mild emphysema, and Ms. Rankle assessed “known underlying COPD

with emphysema and obstruction on PFT.” Tr. 22, 702-03.

At a follow-up visit with Dr. Boepple on May 18, 2020, Plaintiff reported “some

progressive shortness of breath;” she had run out of one of her medications about a week prior;

and she still smoked one pack of cigarettes per day. Tr. 22, 701. An examination showed clear

breath sounds bilaterally clear without wheezes, rhonchi or rales, but diminished throughout. Tr.

22, 702. In June 2020, Plaintiff told Dr. Boepple she had no shortness of breath and was doing

well on medications. Tr. 22, 697. She continued to smoke one pack of cigarettes per day. Id. Dr.

Boepple observed that Plaintiff’s respiratory rate was normal, and she had clear breath sounds

bilaterally. Tr. 698.

Based on the foregoing, ALJ reasonably concluded that the clinical findings from 2010

through Plaintiff’s last date insured of June 2015 showed that although Plaintiff was diagnosed

with COPD, she was asymptomatic and did not need medication. Tr. 24. In fact, as the ALJ noted,

Plaintiff was only prescribed respiratory medications when her COPD became symptomatic in

August 2016, well over one year after the expiration of her June 2015 date last insured. Tr. 24. See

Arnone v. Bowen, 882 F.2d 34, 37-38 (2d Cir. 1989) (a claimant is entitled to DIB only if she

establishes that her condition or conditions reached disabling severity on or before the expiration

of her insured status) (citing 42 U.S.C. § 423(a)(1)(A)); see also 20 C.F.R. § 404.130; 20 C.F.R. §

404.131; 20 C.F.R. 404.315(a); 20 C.F.R. § 404.320(b). The ALJ also noted that Plaintiff’s

symptoms did not interfere with her daily living. 24, 476.

Moreover, Plaintiff’s physical examinations during this time period were largely

unremarkable (Tr. 410, 416-17, 426-27, 455-56), and although the evidence reflects that Plaintiff

developed mild emphysema in 2020, clinical respiratory findings contemporaneously reflected

clear breath sounds bilaterally without wheezes, rhonchi or rales (Tr. 697-98, 702, 705-06). Thus,

there was nothing to suggest that Plaintiff’s overall respiratory functioning was not well-controlled

or severely limiting. Accordingly, the clinical evidence supported the ALJ’s finding that Plaintiff

retained the RFC to perform for work at all exertional levels with environmental limitations. Tr.

19. See Christine Lee S. v. Comm’r of Soc. Sec., No. 5:20-CV-1008, 2022 WL 103108, at *11

(N.D.N.Y. Jan. 11, 2022) (finding that although spirometry tests indicate that plaintiff had

moderate obstructive airway disease, nothing in the record sets forth any respiratory limitations

specific to plaintiff's COPD that require greater environmental limitations than those included in

the RFC).

Additional support for the ALJ’s RFC finding is found in the November 26, 2019 opinion

of state agency medical consultant D. Miller, D.O. (“Dr. Miller”), who reviewed the available

evidence and opined that Plaintiff had no exertional limitations. Tr. 24, 59-61. Dr. Miller also

opined that Plaintiff should avoid concentrated exposure to extreme cold and heat, wetness,

humidity, fumes, odors, dust, gases and poor ventilation. Tr. 60. Thus, Dr. Miller’s opinion is

consistent with the ALJ’s finding that Plaintiff was able to perform work at all exertional levels

with environmental limitations. Tr. 19. See 20 C.F.R. §§ 404.1513a(b)(1), 416.913a(b)(1) (State

agency medical and psychological consultants are highly qualified and experts in Social Security

disability evaluation, and their prior administrative medical findings must be considered); see also

Camille v. Colvin, 652 F. App’x 25, 28 (2d Cir. 2016) (the opinions of state agency medical

consultants can constitute substantial evidence when supported by other evidence in the record).

In addition to the clinical findings and the opinion evidence, the ALJ further relied on

Plaintiff’s statements and reported activities to support the RFC finding. Tr. 20-25. 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)).

The ALJ noted Plaintiff’s allegations of shortness of breath; difficulty walking, standing,

sitting, climbing stairs; and also noted that her COPD was triggered by stress, humidity and cold

weather. Tr. 20, 245-46, 248. However, the ALJ also noted that Plaintiff reported she was able to

perform personal care tasks and prepare meals daily (Tr. 597, 600), and she shopped, spent time

with others, including visiting people and attending family functions and birthday parties, and

traveled independently (Tr. 46, 244, 597, 600). Tr. 20. See Poupore, 566 F.3d at 307 (claimant’s

abilities to watch television, read, drive, and do household chores supported ALJ’s finding that his

testimony was not fully credible).

The ALJ also noted inconsistencies in Plaintiff’s statements regarding her work activity.

Tr. 24-25. At the hearing, Plaintiff testified she had not worked since her alleged onset date of

August 1, 2010, and denied performing any side jobs (Tr. 40, 42); however, treatment records

documented that in October 2014, she spent time cleaning out her parents’ home, painted it,

getting it ready to sell and actually denied any symptoms (Tr/ 454). Tr. 25. In October 2016, she

reported sores on the bottoms of both feet after power washing a house in bare feet and going up

and down a ladder. Tr. 25, 477. In October 2018, she reported working with her brother in his

small construction business. Tr. 25, 407. On April 4, 2020, Ms. Whistler noted that Plaintiff was

laid off ten years ago and had been working side jobs. Tr. 25, 616. See 20 C.F.R. §§ 404.1571,

416.971 (explaining that even if the work a claimant had done was not substantial gainful activity,

it may show that the claimant can do more work than he actually did). Based the foregoing, the

ALJ reasonably concluded that Plaintiff’s activities showed that she was able to perform work-

related activities and supported the RFC finding.

As previously noted, it is Plaintiff who ultimately bears the burden of demonstrating

functional limitations that preclude performance of any substantial gainful activity. See 20 C.F.R.

§ 416.945(a)(3) (the claimant is responsible for providing the evidence used in the RFC

determination); see Poupore, 566 F.3d at 305-06 (The burden is on Plaintiff to show that he cannot

perform the RFC as found by the ALJ.). Plaintiff here failed to meet her burden of proving that no

reasonable factfinder could have reached the ALJ’s findings on this record.

II. The ALJ Properly Considered Dr. Dave’s Consultative Opinion.

Plaintiff also challenges the ALJ’s evaluation of the portion of Dr. Dave’s November 2019

opinion limiting Plaintiff to no more than light to moderate sustained physical exertion through

the day based on her COPD and psoriasis. See ECF No. 7-1 at 12-15 (citing Tr. 23-24, 602).

Plaintiff argues that the ALJ did not cite to any evidence to support his finding that this portion of

Dr. Dave’s opinion was unpersuasive because it was inconsistent with objective clinical findings

showing no significant physical abnormalities and/or restrictions. See id. However, the ALJ’s

decision is replete with references to the objective clinical findings, as well as Plaintiff’s activities

of daily living, as discussed above. Tr. 20-25. Therefore, Plaintiff’s argument is unavailing.

Here, the ALJ considered Dr. Dave’s opinion in accordance with the new regulatory

framework outlined above and explained that while the environmental limitations portion of the

opinion were persuasive and consistent with the record, the portion limiting Plaintiff to light to

moderate physical exertion was not persuasive because it was inconsistent with the objective

clinical findings. Tr. 23-24, 602; see 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2) (consistency

factor). As the ALJ explained, the objective clinical findings showed no significant physical

abnormalities and/or restrictions, and Dr. Dave’s opinion was inconsistent with treatment records

that consistently showed normal physical examinations, and inconsistent with Plaintiff’s reported

functional abilities, as described throughout the ALJ’s decision and discussed above. Tr. 24.

Accordingly, contrary to Plaintiff’s assertion, the ALJ cited substantial evidence of record in

support of his finding that the exertional portion of Dr. Dave’s opinion was not persuasive, and the

Court finds no error.

III. New Evidence Presented to This Court Does Not Warrant Remand.

Plaintiff argues that “new and material evidence” submitted for the first time to this Court

warrants remand of this case to the Commissioner to take additional evidence, namely, evidence

from treating pulmonologist Dr. Boepple dated August 30, 2021. See ECF No. 7-1 at 9-12. For the

reasons discussed below, Plaintiff’s argument fails.

As the Second Circuit explained in Tirado v. Bowen, 842 F.2d 595 (2d Cir. 1988),

claimants ordinarily should have but one opportunity to prove entitlement to, or eligibility for,

benefits, otherwise “disability administrative proceedings would be an unending merry-go-round

with no finality to administrative and judicial determinations.” Accordingly, a claimant asking the

district court to invoke 42 U.S.C. § 405(g)’s authorization to order the Commissioner to take

additional evidence must satisfy the three-part showing summarized in Tirado:

[A]n appellant must show that the proffered evidence is (1) “ ‘new’ and not merely

cumulative of what is already in the record,” Szubak v. Secretary of Health &

Human Servs., 745 F.2d 831, 833 (3d Cir. 1984), and that it is (2) material, that is,

both relevant to the claimant's condition during the time period for which benefits

were denied and probative, see Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir.

1975). The concept of materiality requires, in addition, a reasonable possibility that

the new evidence would have influenced the Secretary to decide claimant's

application differently. See Szubak, 745 F.2d at 833; Chaney v. Schweiker, 659 F.2d

676, 679 (5th Cir. 1981). Finally, claimant must show (3) good cause for her failure

to present the evidence earlier. See Tolany v. Heckler, 756 F.2d 268, 272 (2d Cir.

1985) (good cause shown where new diagnosis was based on recent neurological

evaluation and assessment of response to medication required observation period).

Tirado, 842 F.2d at 597.

The evidence at issue consists of a medical statement from Dr. Boepple dated August 30,

2021, and PFT reports that, for the most part, are duplicative of PFT reports already in the record

and reviewed by the ALJ. See ECF No. 7-4 at 4-29. After reviewing the full administrative record,

as well as Dr. Boepple’s medical statement and the PFT reports attached thereto, the Court finds

there is insufficient cause to remand this case to the Commissioner to take additional evidence

pursuant to sentence six of § 405(g).

As previously noted, most of the evidence Plaintiff submitted to the Court is not new

because it is duplicative of evidence that was already before the ALJ. See Tr. 21-22, 711-13, 878-

94. While the January 18, 2021 PFT report submitted to the Court is new (see ECF 7-4 at 7-9), it

is not material because it post-dates the ALJ’s December 10, 2020 decision and does not relate

back to the relevant time period that was before the ALJ. In any event, the January 18, 2021 PFT

result shows moderate obstruction, which is consistent with the moderate PFT results already

reviewed by the ALJ. Tr. 21, 22. 488, 531. Therefore, the PFT reports submitted to the Court fail

to meet the Tirado test.

Dr. Boepple’s medical statement also does not meet the Tirado test. See ECF No. 7-4 at 4-

6. Dr. Boepple opined that due to chronic bronchitis, dyspnea on exertion, and moderate COPD,

Plaintiff was limited to standing and sitting for 30 minutes at one time, was able to work for only

four hours per day, was limited to occasionally lifting five pounds, and could not tolerate dust,

smoke, or fumes. See id. Dr. Boepple also stated that these limitations “partially” applied back to

August 1, 2010. See id. at 5. However, upon review, the Court finds that Dr. Boepple’s opinion is

inconsistent with his own treatment notes and other evidence of record.

Plaintiff’s PFT from October 6, 2010, ordered by Dr. Boepple, revealed only “mildly

reduced flows” and “mild partially reversible obstruction.” Tr. 889-91; see also ECF 7-4 at 27-29.

On that date, Dr. Boepple determined that Plaintiff’s “PFTS show mild obstruction,” and he would

“not start her on any bronchodilators at this time.” Tr. 794. Consistent with Dr. Boepple’s treatment

note, one week later, Ms. Whistler examined Plaintiff and noted unremarkable respiratory

examination findings, as well as unremarkable physical examination findings overall. Tr. 767-68.

In the same treatment note, Ms. Whistler stated that Plaintiff “is not on meds as no [symptoms]

yet.” Tr. 766, 768.

Other evidence reveals that Plaintiff continued to smoke in October 2012, when she told

Ms. Whistler that she had no interest in quitting and did not want an inhaler. Tr. 742. Plaintiff also

denied shortness of breath, and her respiratory examination was unremarkable. Tr. 742-43.

Plaintiff was encouraged to “get back to pulmonology,” but Plaintiff was “not receptive to quitting

[smoking] or going [back to pulmonology].” Tr. 744. In October 2013, Plaintiff again denied

respiratory symptoms to Ms. Whistler; she reported she was still smoking, and she had not seen

Dr. Boepple in over a year. Tr. 746. Her respiratory examination was normal. Tr. 747. In October

2014, Ms. Whistler examined Plaintiff and found “auscultate mildly decreased airflow.” Tr. 751.

At that time, Plaintiff declined a PFT and reported she was not using an inhaler. Tr. 752.

Evidence in the period between Plaintiff’s date last insured in June 2015 and her August

2019 SSI application and beyond continued to show that her symptoms were not disabling, as the

respiratory examination findings by Dr. Boepple and Ms. Whistler remained unremarkable. Tr. 22,

499, 502-03, 525, 530-31, 762, 764. Notably, Plaintiff only became symptomatic for COPD in

June 2016 (Tr. 476), which undermines Dr. Boepple’s opinion that Plaintiff was essentially unable

to perform work-related activities as far back as August 2010 (see ECF No. 7-4 at 5). Finally, even

after Plaintiff was diagnosed with mild emphysema in early 2020, Plaintiff’s objective clinical

findings throughout 2020, remained unremarkable with clear breath sounds bilaterally and normal

respiratory rate. Tr. 698, 702, 912, 916.

Because none of the additional evidence submitted to the Court demonstrates a reasonable

possibility that it would have influenced the ALJ to decide Plaintiff's application differently,

remand is not warranted on this basis. Furthermore, as explained above, the ALJ's decision

thoroughly discussed his rationale for concluding that Plaintiff could perform a full range of work

with the noted non-exertional limitations, and the Court finds no error in the ALJ’s findings.

Based on the foregoing, 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 she 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).

CONCLUSION

Plaintiff's Motion for Judgment on the Pleadings (ECF No. 7) is DENIED, and the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 8) 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.

DON D. BUSH

UNITED STATES MAGISTRATE JUDGE

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