The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOSE R.
Plaintiff, 21-CV-681Sr
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
DECISION AND ORDER
As set forth In the Standing Order of the Court regarding Social Security
Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have
consented to the assignment of this case to the undersigned to conduct all proceedings
in this case, including the entry of final judgment, as set forth in 42 U.S.C. § 405(g).
Dkt. #10
BACKGROUND
Plaintiff applied for disability insurance benefits with the Social Security
Administration (“SSA”), on March 10, 2015, at the age of 34, alleging disability
beginning February 11, 2014, due to a low back injury, leg pain, bilateral hip issues, and
depression. Dkt. #6, p.82. Administrative Law Judge (“ALJ”), Rosanne Dummer
rendered a decision that plaintiff was not disabled on August 8, 2017. Dkt. #6, pp.16-32.
On August 11, 2020, the Hon. Lawrence J. Vilardo determined that the ALJ failed to
provide sufficient reasons for her decision to credit a medical expert over the opinions
of plaintiff’s treating physicians and remanded the matter back to the Commissioner for
further administrative proceedings. Dkt. #6, pp.725-734.
On January 12, 2021, plaintiff appeared with counsel, along with medical
expert, Allan Levine, and vocational expert (“VE”), Marney South, and testified at an
administrative hearing by telephone before ALJ Bryce Baird. Dkt. #6, pp.610-679.
Plaintiff testified that he has a high school diploma Dkt. #6, p.640. He lives alone in a
two story house and only goes upstairs to sleep. Dkt. #6, p.617. He has difficulty getting
up from a chair and using the stairs, especially going down. Dkt. #6, pp.642 & 645-646.
He is able to sit 20-30 minutes at a time before standing up; stand 15-20 minutes
before sitting down; and walk 20 minutes before sitting down. Dkt. #6, pp.620-621. He
is unable to engage in any activity for more than 20 minutes before he needs to lie
down for 30-40 minutes. Dkt. #6, p.643. He is unable to bend, stoop, squat or crouch.
Dkt. #6, p.643. He cannot lift more than 10-20 pounds. Dkt. #6, pp.643-644. He does
laundry at the laundromat, makes his bed and takes out the trash. Dkt. #6, pp.618-19.
He has difficulty putting his socks on and tying his shoes. Dkt. #6, p.619. He is able to
drive. Dkt. #6, p.619. He can go to the grocery store, but gets what he needs and gets
out. Dkt. #6, p.620. His mother or friends cook for him. Dkt. #6, p.646.
Dr. Levine, a board certified orthopedic surgeon, testified that plaintiff has
chronic back pain and radiating pain to the right leg secondary to a central
subligamentous herniated disc at L5-S1. Dkt. #6, p.623. Dr. Levine noted that the most
recent MRI, dated March 11, 2017, reveals no evidence of spinal stenosis or
neuroforaminal stenosis, but does reveal an indent on the thecal sack of the herniated
disc. Dkt. #6, p.623. Dr. Levine found no evidence of nerve root or spinal cord
compromise and noted that plaintiff’s neurosurgeon did not feel plaintiff was a
candidate for surgery and that plaintiff declined a spinal cord simulator. Dkt. #6, pp.624-
25. Dr. Levine testified that plaintiff’s physical examinations were “extremely
inconsistent,” and noted that certain findings upon examination lacked correlation to the
symptoms commonly associated with an L5-S1 disc herniation. Dkt. #6, pp.625-629.
Adjusting for obesity and affording some credence to plaintiff’s subjective
complaints of pain, Dr. Levine opined that during the relevant time period, plaintiff was
capable of lifting 20 pounds occasionally and 10 pounds frequently. Dkt. #6, p.630. Dr.
Levine further opined that plaintiff could sit for 6 hours in an 8-hour day, but not longer
than 60 minutes at a time, at which point he would need to stand or walk for two-
minutes. Dkt. #6, p.630. He could stand for 3 hours in an 8-hour day, but not longer
than 40 minutes at one time before sitting for 2-3 minutes. Dkt. #6, p.631. Plaintiff could
walk three hours in an 8-hour day, but not longer than 20 minutes at a time before
sitting to 2-3 minutes. Dkt. #6, p.631. Dr. Levine opined that plaintiff could use stairs or
ramps occasionally; kneel occasionally; and crouch or stoop occasionally, but should
avoid ladders, scaffolds, crawling, heaving machinery, unprotected heights, and
extreme cold exposure. Dkt. #6, p.631.
When asked to assume an individual with plaintiff’s age, education and
past work experience as a demolition worker, machine buffer and line cook with a
limitation to lift and carry up to ten pounds occasionally and up to five pounds
frequently; who can sit for up to six hours in an 8-hour day and stand or walk for up to
six hours in an 8-hour day, but was limited to walking no more than 20 minutes at one
time, and no more than three hours in an 8-hour day, with an option to stand or stretch
for up to 2 minutes after sitting for 60 minutes; no more than frequent operation of foot
controls bilaterally; occasional climbing of ramps or stairs; no climbing of ladders, ropes
or scaffolds; no balancing; occasional stooping, kneeling and crouching; no crawling; no
exposure to hazards such as unprotected heights and moving machinery; and no more
than frequent driving of a vehicle, the VE responded that plaintiff could work as a table
worker, ink printer, and dial marker, each of which were unskilled, sedentary positions.
Dkt. #6, pp.651-652. If plaintiff was off-task for more than 10% of an 8-hour workday or
absent more than one day per month, the VE testified that plaintiff would not be
capable of employment. Dkt. #6, pp.652-653.
The ALJ rendered a decision that plaintiff was not disabled on March 1,
2021. Dkt. #6, pp..583-602. Plaintiff commenced this action seeking review of the
Commissioner’s final decision on May 27, 2021. Dkt. #1.
DISCUSSION AND ANALYSIS
“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). Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue,
569 F.3d 496, 501 (2d Cir. 2009). If the evidence is susceptible to more than one
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rational interpretation, the Commissioner’s determination must be upheld. McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014). “Where an administrative decision rests on
adequate findings sustained by evidence having rational probative force, the court
should not substitute its judgment for that of the Commissioner.” Yancey v. Apfel, 145
F.3d 106, 111 (2d Cir. 1998).
To be disabled under the Social Security Act (“Act”), a claimant must
establish an inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than
twelve months. 20 C.F.R. § 404.1505(a).
The Commissioner must follow a five-step sequential evaluation to
determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R.
§ 404.1520(a). At step one, the claimant must demonstrate that he is not engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(b). At step two, the claimant must
demonstrate that he has a severe impairment or combination of impairments that limits
the claimant’s ability to perform physical or mental work-related activities. 20 C.F.R.
§ 404.1520(c). If the impairment meets or medically equals the criteria of a disabling
impairment as set forth in Appendix 1 of Subpart P of Regulation No. 4 (the “Listings”),
and satisfies the durational requirement, the claimant is entitled to disability benefits. 20
C.F.R. § 404.1520(d). If the impairment does not meet the criteria of a disabling
impairment, the Commissioner considers whether the claimant has sufficient RFC for
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the claimant to return to past relevant work. 20 C.F.R. § 404.1520(e)-(f). If the claimant
is unable to return to past relevant work, the burden of proof shifts to the Commissioner
to demonstrate that the claimant could perform other jobs which exist in significant
numbers in the national economy, based on claimant’s age, education and work
experience. 20 C.F.R. § 404.1520(g).
In the instant case, the ALJ made the following findings with regard to the
five-step sequential evaluation: (1) plaintiff had not engaged in substantial gainful
activity between his application for benefits on February 11, 2014 and his date last
insured on March 31, 2018; (2) plaintiff’s degenerative disc disease and obesity
constitute severe impairments; (3) plaintiff’s impairments did not meet or equal any
listed impairment; (4) plaintiff retained the RFC to perform sedentary work1 except that
he is restricted to lifting and carrying on occasion up to ten pounds and frequently up to
five pounds, sitting for up to six hours in an eight-hour day with an option to stand or
stretch for up to two minutes after 60 minutes of sitting during which time he would be
off task, standing for up to six hours in an eight-hour day, walking no more than 20
minutes at one time or for more than three hours in an eight hour day, no more than
frequent operation of foot controls bilaterally, no more than frequent driving of a vehicle,
occasional climbing of ramps and stairs, occasional stooping, kneeling and crouching,
no climbing of ladders, ropes or scaffolds, no balancing, no crawling, no exposure to
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.
20 C.F.R. § 416.967(a).
hazards, such as unprotected heights or moving machinery, and no exposure to
excessive vibration or cold; and (5) plaintiff was unable to perform his past relevant
work but was capable of working as a table worker, ink printer, and dial marker, each of
which were unskilled, sedentary positions, and was not, therefore, disabled within the
meaning of the SSA. Dkt. #6, pp.583-602.
Plaintiff argues that the ALJ erred when he failed to incorporate physical
limitations included in the opinion of plaintiff’s pain management specialist, Dr. Tracy,
into the RFC or explain why such limitations were omitted even though he afforded Dr.
Tracy’s significant weight. Dkt. #7-1, pp.21-27. Specifically, the ALJ determined that
plaintiff could sit for 60 minutes at a time, while Dr. Tracy opined that plaintiff could sit
for 20 minutes at a time. Dkt. #7-1, p.24. Plaintiff also argues that the ALJ does not
account for discrepancies between Dr. Tracy’s opinion that plaintiff could only stand for
20 minutes at a time and Dr. Levine’s opinion that plaintiff could stand for no more than
40 minutes at a time. Dkt. #6, p.25. Plaintiff argues that the absence of an explanation
as to why the ALJ rejected aspects of Dr. Tracy’s opinion constitutes plain error which
cannot be considered harmless and requires remand. Dkt. #7-1, p.27.
The Commissioner argues that the ALJ was not required to adopt the
entirety of any one medical opinion into the RFC and that the ALJ provided sufficient
reasoning for his RFC determination, which was based upon consideration of multiple
medical opinions, as well as objective medical and diagnostic findings, and plaintiff’s
reported activities of daily living. Dkt. #8-1, pp.7-11.
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Plaintiff responds that even when a medical opinion is afforded less than
controlling weight, the ALJ is required to provide an adequate explanation for his failure
to incorporate the functional limitations set forth in such opinion into the RFC and the
ALJ’s failure to do so amounted to cherry-picking of the evidence. Dkt. #9.
For claims filed before March 27, 2017, the SSA regulations provide that,
unless the ALJ affords controlling weight to a treating source’s medical opinion, the ALJ
is required to consider and weigh all medical opinions of record, whether those opinions
are from acceptable medical sources, other medical sources or non medical sources,
with consideration of the following factors for determining the appropriate weight to
afford such opinions: (1) the frequency of examination; (2) the length, nature and extent
of the treatment relationship; (3) the evidence in support of the medical opinion; (4) the
consistency of the opinion with the record as a whole; (5) whether the opinion is from a
specialist; and (6) other factors brought to the SSA’s attention that tend to support or
contradict the opinion. Saxon v. Astrue, 781 F. Supp.2d 92, 103-04 (N.D.N.Y. 2011);
See 20 C.F.R. § 404.1527 (f)(2). The factors to be considered in evaluating opinions
from non-treating medical sources are the same as those for assessing treating
sources, except that consideration of the treatment relationship is replaced with
consideration of whether the non-treating source examined the plaintiff. White v. Saul,
414 F. Supp.3d 377, 383 (W.D.N.Y. 2019). So long as the ALJ’s rationale is clear,
however, the ALJ need not address each factor individually. See. Atwater v. Astrue,
512 Fed. App’x 67, 70 (2d Cir. 2013).
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Genuine conflicts in the medical evidence are for the ALJ to resolve.
Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). Even where the ALJ’s
determination does not perfectly correspond with any of the opinions of medical
sources cited in a decision, the ALJ is entitled to weigh all of the evidence available to
make a residual functional capacity finding that is consistent with the record as a whole.
Trepanier v. Comm’r of Soc. Sec., 752 Fed. App’x 75, 79 (2d Cir. 2018); Matta v.
Astrue, 508 Fed. App’x 53, 56 (2d Cir. 2013). An ALJ need not reconcile every conflict
in the record, but must set forth the crucial factors in his determination with sufficient
specificity to enable a reviewing court to decide whether the determination is supported
by substantial evidence. Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). While the
ALJ is not obligated to explicitly reconcile every conflicting shred of medical evidence,
the ALJ cannot selectively choose evidence in the record to support the ALJ’s
conclusions. Gecevic v. Sec. of Health & Human Servs., 882 F. Supp. 278, 286
(E.D.N.Y. 1995). A plaintiff is entitled to understand why the ALJ chose to disregard
portions of medical opinions that were beneficial to his application for benefits.
Dioguardi v. Comm’r of Soc. Sec., 445 F. Supp.2d 288, 297 (W.D.N.Y. 2006). Thus,
when an ALJ chooses to adopt only portions of a medical opinion, the ALJ must explain
his decision to reject the remaining portions. Tanya Y. v. Comm’r of Soc. Sec., 20-CV-
712, 2022 WL 1115458, at *2 (W.D.N.Y. Apr. 14, 2022).
The ALJ provided sufficient explanation for his assessment of the various
medical opinions within the record and his determination the plaintiff was capable of
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performing sedentary work with additional limitations is supported by substantial
evidence. The ALJ’s decision includes a careful review of the objective medical
evidence and medical opinions, as well as a detailed explanation of the ALJ’s rationale
for plaintiff’s RFC. Dkt. #6, p.596. The ALJ afforded the greatest weight to the opinion
of Dr. Levine because his testimony was based upon a thorough review of the entire
record as evidenced by his specific citations to the record and explanations for his
testimony and RFC, as well as plaintiff’s testimony, his expertise as an orthopedic
surgeon, and his experience as an expert for the SSA. Dkt. #6, pp.600-601. The benefit
of an opinion based upon the overall record is particularly apparent where, as the ALJ
recognized, “treating sources offered differing opinions regarding the [plaintiff’s]
functioning.” Dkt. #6, p.597. As noted by plaintiff, for example, plaintiff’s primary care
provider, Dr. Dorfman, opined that plaintiff could stand and walk up to 20% of his shift
(Dkt. #6, pp.337, 339, 343-344), while plaintiff’s pain management specialist, Dr. Tracy,
opined that plaintiff could sit for 20 minutes, stand for 15 minutes, walk for 20-30
minutes and drive for 30 minutes. Dkt. #6, p.539. In addition, Dr. Beaupin conducted an
evaluation for workers’ compensation on June 28, 2016 and determined that plaintiff
had achieved maximum medical improvement with the ability to perform sedentary to
light duty work, including the ability to sit, stand and walk occasionally, which was
defined as up to 1/3 of the time. Dkt. #6, p.535. A consultative examination by Dr. Miller
on May 7, 2015 did not assess any limitations for sitting, standing or walking. Dkt. #6,
p.478. Moreover, the previous medical expert, Dr. Schmitter, opined that plaintiff could
sit, stand and walk without interruption up to 4 hours in an 8-hour day. Dkt. #6, p.572.
Contrary to plaintiff’s argument, this is not a case where the ALJ improperly cherry-
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picked evidence, but rather a case where the ALJ appropriately weighed conflicting
evidence to determine an RFC that is supported by substantial evidence.
CONCLUSION
Based on the foregoing, plaintiff’s motion for judgment on the pleadings
(Dkt. #7), is denied and the Commissioner’s motion for judgment on the pleadings (Dkt.
#8), is granted.
The Clerk of the Court is directed to close this case.
SO ORDERED.
DATED: Buffalo, New York
September 29, 2023
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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