Williams v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JAMES K. W., §

§

Plaintiff, §

§

v. § Case # 1:21-cv-864-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

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

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

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

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

Act. See ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c),

and the parties consented to proceed before the undersigned in accordance with a standing order

(see ECF No. 14).

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

Procedure 12(c). See ECF Nos. 8, 10. Plaintiff also filed a reply. See ECF No. 12. For the reasons

set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 8) is DENIED, and

the Commissioner’s motion for judgment on the pleadings (ECF No. 10) is GRANTED.

BACKGROUND

Plaintiff protectively filed an application for DIB on February 26, 2019. Transcript (“Tr.”)

15, 166-72. He also filed an application for SSI on July 2, 2020. Tr. 15, 181-90. In both

applications, Plaintiff alleged disability beginning February 14, 2015 (the disability onset date),

due to herniated discs, sciatica, bulging discs, and high blood pressure. Tr. 220. The claims were

denied initially on July 3, 2019, and again on reconsideration on November 5, 2019, after which

Plaintiff requested an administrative hearing. Tr. 15. On October 15, 2020, Administrative Law

Judge Andrew J. Soltes, Jr. (“the ALJ”) conducted a telephonic hearing.1 Tr. 15, 29-72. Plaintiff

appeared and testified at the hearing and was represented by Katheryn Eastman, an attorney. Tr.

15, 33. Helene J. Feldman, an impartial vocational expert, also appeared and testified. Id.

The ALJ issued an unfavorable decision on December 1, 2020, finding that Plaintiff was

not disabled. Tr. 15-23. On June 2, 2021, the Appeals Council denied Plaintiff’s request for further

review. Tr. 1-6. The ALJ’s December 1, 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 1, 2020 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 February 14, 2015, the

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

3. The claimant has the following severe impairments: cervical and lumbar degenerative disc

disease/herniated discs status post surgery, obesity, and asthma (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 sedentary work as defined in

20 CFR 404.1567(a) and 416.967(a)2 but requires the ability to alternate between sitting

and standing at will while remaining on task during the sit/stand period, can frequently

reach in all directions except overhead, can occasionally reach overhead, stoop, crouch,

and climb ramps/stairs, cannot kneel, crawl, climb ladders/ropes/scaffolds, or work from

unprotected heights, and must avoid temperature extremes and concentrated exposure to

dust, fumes, gases, and other pulmonary irritants.

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

7. The claimant was born on November 13, 1982 and was 32 years old, which is defined as a

younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and

416.963).

2 “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.

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).

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

February 14, 2015, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. 15-23.

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

and disability insurance benefits protectively filed on February 26, 2019, the claimant is not

disabled under sections 216(i) and 223(d) of the Social Security Act. Tr. 23. The ALJ also

determined that based on the application for supplemental security income protectively filed on

July 2, 2020, the claimant is not disabled under section 1614(a)(3)(A) of the Act. Id.

ANALYSIS

Plaintiff asserts three points of error. Plaintiff first argues that the ALJ failed to consider

the October 2018 opinion of treating chiropractor, John Ward, D.C. (“Dr. Ward”). See ECF No. 8-

1 at 9-13. Second, Plaintiff argues that the ALJ failed to properly evaluate whether Plaintiff’s

thoracic degenerative disc disease met or equaled any part of Listing 1.04. See id. at 13-16. Finally,

Plaintiff argues that the ALJ failed to properly evaluate Plaintiff’s subjective complaints. See id.

at 16-19. Accordingly, Plaintiff argues that the ALJ’s finding that Plaintiff was not disabled was

not supported by substantial evidence. See id. at 8-19.

In response, the Commissioner argues that the ALJ’s RFC finding was supported by

substantial evidence, including multiple medical opinions. See ECF No. 10-1 at 5-16. While the

Commissioner concedes that the ALJ did not discuss Dr. Ward’s opinion, the Commissioner

argues that any error was harmless because Dr. Ward’s opinion was consistent with the RFC

finding for sedentary work. See id. at 8-12. Next, the Commissioner argues that the ALJ’s step

three finding that Plaintiff’s impairments did not meet or medically equal the requirements of

Listing 1.04, or any other Listing, was supported by substantial evidence, and Plaintiff has failed

to show otherwise, as was his burden. See id. at 16-19. With respect to Plaintiff’s third point, the

Commissioner argues that the ALJ properly considered Plaintiff’s subjective complaints in

accordance with the regulatory framework, and substantial evidence supports the ALJ’s

conclusions. See id. at 19-24.

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 objective medical records and the opinions of multiple

medical sources, and the ALJ’s finding that Plaintiff was not disabled was supported by substantial

evidence. Any error in the ALJ’s failure to discuss Dr. Ward’s opinion was, at most, harmless.

Furthermore, substantial evidence supports the ALJ’s finding that Plaintiff did not meet or

medically equal a Listing and his finding that Plaintiff’s subjective complaints were not entirely

consistent with the other evidence. Accordingly, the Court finds no error.

Following a motor vehicle accident on February 14, 2015, Plaintiff treated with orthopedic

surgeon Zair Fishkin, M.D. (“Dr. Fishkin”), and other providers at Pinnacle Orthopedic & Spine

Specialists (“Pinnacle Orthopedic”). Tr. 523-54. On July 21, 2015, Dr. Fishkin performed a left

L5-S1 laminectomy, partial facetectomy, and discectomy for decompression of the left L5 and S1

nerves. Tr. 543. On December 1, 2015, Plaintiff reported he was “pleased” with his recovery and

“eager to return to work.” Dr. Fishkin released Plaintiff to return to work with light duty restrictions

that included lifting no greater than twenty pounds, and no repetitive flexion, extension or rotation

of the lumbar spine. Tr. 529.

By January 2016, Plaintiff was doing well after his surgery. Tr. 523. He denied low back

or left lower extremity discomfort, tingling, or numbness. Id. However, he complained of

continued intermittent neck discomfort that radiated to his left shoulder. Id. Plaintiff was taking

Ibuprofen as needed for discomfort and continued home exercises that “he fe[lt] just keep him

stable.” Id.

On June 28, 2018, Plaintiff was treated in the Emergency Department (“ED”) at Sisters of

Charity Hospital after being rear ended in a motor vehicle accident. Tr. 573. Plaintiff complained

of thoracic pain radiating to the right side. Tr. 570. After an x-ray of the thoracic spine, Plaintiff

was prescribed medication and discharged home. Tr. 576.

Plaintiff received chiropractic care from Dr. Ward from 2016 to 2019. See Tr. 319-501,

1173-1685. On July 2, 2018, shortly after Plaintiff’s second motor vehicle accident, Dr. Ward

performed a baseline physical performance test, which showed reduced range of motion in all

cervical and lumbar vectors, ranging from 13% to 52% of normal. Tr. 329. Follow-up physical

performance testing in December 2018 and February 2019 indicated significant improvement in

most vectors of cervical and lumbar range of motion. Tr. 415, 497.

On October 15, 2018, Dr. Ward completed a form indicating that Plaintiff was “moderately

limited” in walking, standing, sitting, lifting, carrying, pushing, pulling, bending, seeing, hearing,

speaking, using his hands, and climbing. Tr. 1442-43. Dr. Ward did not complete the section of

the form asking how long Plaintiff’s limitations were expected to last. See Tr. 1443.

On November 19, 2018, Plaintiff was seen by nurse practitioner Krystle Collins, FNP-BC

(“Ms. Collins”), at Pinnacle Orthopedic, complaining of intermittent neck pain and constant low

back pain following his second accident. Tr. 476-81. Plaintiff rated the severity of his neck pain

as 5/10 and his neck pain as 7/10. Tr. 477. He also reported numbness and tingling in the two

smallest fingers on the left hand and numbness and paresthesia in the left posterior calf, as well as

occasional associated headaches. Id. Plaintiff reported that he was currently receiving chiropractic

treatment three times per week with Dr. Ward. Id.

On physical examination, Ms. Collins noted that Plaintiff demonstrated normal gait and

stance; he was able to stand from a seating position without difficulty; and he used no assistive

devices. Tr. 479. Ms. Collins also noted mild cervical and lumbar paravertebral muscle rigidity;

reduced range of motion in the cervical and lumbar spine; 5/5 strength in the upper extremities;

and positive straight leg raise testing. Id. Ms. Collins assessed cervical and lumbar disc herniation

and discussed various treatment options, including continuing with chiropractic care and other

conservative treatment options, as well as interventional pain management. Tr. 480. Plaintiff

indicated that he wanted a surgical consultation with Dr. Fishkin before proceeding with any

injections. Id.

On January 28, 2019, Plaintiff was seen by Dr. Fishkin for further evaluation. Tr. 466-70.

Dr. Fishkin reviewed MRI studies of the thoracic and cervical spine taken in August 2018, and

MRI studies of cervical and lumbar spine taken in March 2015. Tr. 467-68. Dr. Fishkin assessed

L5-S1 laminectomy; recurrent L5-S1 disc herniation; thoracic degenerative disc disease with

spondylosis; and cervical HNP with stenosis. Tr. 469. He recommended continuing with

conservative and nonoperative care, including chiropractic adjustments and pursuing physical

therapy if Plaintiff reached a plateau with chiropractic adjustments. Id.

On February 14, 2019, Plaintiff presented to Dr. Fishkin with recurrent left-sided L5-S1

disc herniation, lumbar radiculopathy, and back pain. Tr. 474. Dr. Fishkin noted that MRI studies

from November 2018 demonstrated loss of disc space height at L5-S1. Id. He discussed treatment

options with Plaintiff, including living with the leg pain or surgical options. Id. Dr. Fishkin noted

that additional laminectomy/decompression would not adequately restore the foraminal height,

and his leg pain would remain persistent. Id. After discussion, Plaintiff elected to proceed with

L5-S1 anterior lumbar discectomy and interbody fusion (“ALIF”). Id. Dr. Fishkin performed L5-

S1 ALIF surgery on May 14, 2019. Tr. 585.

Plaintiff had a post-op follow-up visit with Dr. Fishkin on May 23, 2019. Tr. 663-66.

Plaintiff reported “immediate improvement of left leg pain.” Tr. 663. Dr. Fishkin noted that

Plaintiff’s back was “still understandably sore.” Id. On physical examination, Dr. Fishkin noted

that Plaintiff walked without an assistive device, and his incision was healing. Tr. 665. Dr. Fishkin

encouraged Plaintiff to continue with a lumbar support orthosis and recommended no lifting

greater than five pounds or activity requiring repetitive lumbar bending and twisting; he also

recommended another 4-6 weeks of rest before increasing activity. Tr. 666.

On June 20, 2019, Nikita Dave, M.D. (“Dr. Dave”), conducted an internal medicine

consultative examination. Tr. 646. Plaintiff reported that he had been in two motor vehicle

accidents, one in 2015 and one in 2018. Id. The first accident caused chronic neck and low back

pain, while the second accident aggravated the low back pain. Id. Plaintiff had lumbar spine

surgery in 2016, and due to constant left lower extremity pain over the last eight months, he had a

second surgery about one month prior to the examination. Id. Plaintiff reported he was presently

under surgical restrictions for no bending, lifting more than five pounds, or twisting. Id.

On physical examination, Dr. Dave noted that Plaintiff demonstrated full strength in the

upper and lower extremities; showed full range of motion in the cervical spine (lumbar range of

motion was not tested due to recency of surgery); stood with a normal stance; walked with a normal

gait without the use of an assistive device; squatted halfway to the ground; and rose from a chair

without difficulty. Tr. 647. Dr. Dave diagnosed: hypertension, stable with medications; lumbar

spine surgeries and motor vehicle accidents; low back pain axial; and neck pain, right myofascial.

Tr. 648. Dr. Dave opined that Plaintiff was mildly to moderately limited in his ability to perform

heavy lifting, carrying, pushing, and pulling, and also may have “mild need to avoid smoke, dust,

inhalants, chemicals, extremes of temperature and humidity given past history of [asthma].” Id.

On July 11, 2019, Plaintiff had a follow-up post-op visit with physician assistant James

Hurd, PA-C (“Mr. Hurd”), at Pinnacle Orthopedic. Tr. 658-61. Mr. Hurd noted that Plaintiff

continued to be pleased with the surgical results, although he complained of lingering back pain

which he “describe[d] as ‘not bad’ intolerable overall.” Tr. 658. Plaintiff denied radiation,

numbness, or tingling to his lower extremities. Id. Mr. Hurd encouraged Plaintiff to “avoid

repetitive bending or twisting with his waist and other aggravating activities.” Tr. 661.

On October 21, 2019, Plaintiff underwent an orthopedic consultative examination by

Hongbiao Liu, M.D. (“Dr. Liu”). Tr. 655. Plaintiff again reported neck and low back pain limiting

his ability to lift, walk for prolonged periods, and remain in a static position. Id. On physical

examination, Dr. Liu noted decreased range of motion in the cervical and lumbar spine and positive

straight leg raise testing at 25 degrees sitting and supine. Tr. 656. Dr. Liu also noted that Plaintiff

presented with a back brace, and he opined that the brace was medical necessary to limit pain. Id.

Dr. Liu also observed that Plaintiff stood with a normal station; walked with a normal gait without

using an assistive device; performed a full squat; rose from a chair without difficulty; and

demonstrated full strength in the upper and lower extremities, with no evidence of atrophy or

sensory/reflex abnormalities. Tr. 656-57. Dr. Liu diagnosed chronic neck and low back pain

secondary to motor vehicle accident, status post back surgery; history of high blood pressure; and

obesity. Tr. 657. Dr. Liu opined that Plaintiff had mild to moderate limitation for prolonged

walking, bending, kneeling, squatting, lifting, carrying, overhead reaching, prolonged

sitting/standing, and stair climbing. Id.

As noted above, Plaintiff argues that the ALJ’s RFC finding was not supported by

substantial evidence. See generally ECF No. 8-1. 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); 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 his DIB claim on February 26, 2019, and his SSI claim on July 2, 2020,

and therefore, the 2017 regulations are applicable to his 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).

Plaintiff first contends that remand is warranted because the ALJ failed to consider the

October 2018 opinion from Dr. Ward. See ECF No. 8-1 at 9-13. As noted above, Dr. Ward opined

that Plaintiff was “moderately limited” in walking, standing, sitting, lifting, carrying, pushing,

pulling, bending, seeing, hearing, speaking, using his hands, and climbing. Tr. 1443. While the

ALJ did not consider this opinion, any error is harmless because substantial evidence supports the

ALJ’s RFC finding for sedentary work. Tr. 18. See Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir.

2010) ((remand is unnecessary where “application of the correct legal principles to the record

could lead [only to the same] conclusion”). Dr. Ward’s opinion is also consistent with the

limitations in the ALJ’s RFC finding. Compare Tr. 18 with Tr. 1443. See Smith v. Comm’r of Soc.

Sec., 351 F. Supp. 3d 270, 282 (W.D.N.Y. 2018) (ALJ’s failure to discuss evidence was harmless

error where the evidence did not contain any information inconsistent with the assess RFC, the

record contained other sources of opinion evidence, and the opinion in question was not entitled

to special weight); Gemmell v. Comm’r of Soc. Sec., 2017 WL 3328237, at *5 (N.D.N.Y. Aug. 2,

2017) (“[F]ailure to consider or weigh an opinion may be harmless error where consideration of

that opinion would not have changed the outcome.”) (collecting cases).

First, the ALJ found Plaintiff capable of a reduced range of sedentary work, the least

rigorous category of work. See 20 C.F.R. §§ 404.1567(b), 416.967(b). The ALJ also found Plaintiff

could frequently reach in all directions except overhead, could occasionally reach overhead, could

occasionally stoop, crouch, and climb ramps/stairs, and could not kneel, crawl, climb

ladders/ropes/scaffolds, or work from unprotected heights. Tr. 18. The ALJ’s RFC finding further

requires that Plaintiff be allowed to alternate between sitting and standing, at will, thus

accommodating any difficulties with prolonged sitting or standing. Id. Thus, Dr. Ward’s opinion

that Plaintiff had moderate limitations in physical functioning is not inconsistent with this very

restrictive RFC finding.

Dr. Ward’s opinion was also provided on a brief check-box form without any explanation

or supporting narrative. Tr. 1443. See 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1) (explaining

that in evaluating medical opinions, the more a medical source presents relevant objective evidence

and supporting explanations to support his or her opinion, the more persuasive that opinion will

be found). As this Court has noted previously, such check-box forms are of limited evidentiary

value. See, e.g., Koerber v. Comm’r of Soc. Sec., No. 6:19-CV-1070-DB, 2020 WL 1915294, at

*1 (W.D.N.Y. Apr. 20, 2020) (citing Augustine v. Comm’r of Soc. Sec., No. 6:15-CV-06145-EAW,

2016 WL 5462836, at *1 (W.D.N.Y. Sept. 28, 2016); Halloran v. Barnhart, 362 F.3d 28, 31 n.2

(2d Cir. 2004) (“[t]he standardized form . . . is only marginally useful for purposes of creating a

meaningful and reviewable factual record”).

Moreover, while the form completed by Dr. Ward did not define the term “moderately”

(see Tr. 1442-43), courts in this Circuit have repeatedly recognized that moderate limitations in

sitting are not necessarily inconsistent with the ability to perform the six hours of sitting needed

for sedentary work. See Lisa P. v. Comm'r of Soc. Sec., No. 19-cv-1155, 2021 WL 826715, at *3-

4 (W.D.N.Y. Mar. 4, 2021) (holding that “a moderate limitation in the ability to sit does not

necessarily preclude a finding that the claimant can meet the sitting demands of sedentary work”);

Hill v. Berryhill, 17-cv-6532, 2019 WL 144920, at *6 (W.D.N.Y. Jan. 9, 2019) (holding that

moderate limitations in prolonged sitting are not inconsistent with sedentary work); see also

Harrington v. Colvin, No. 14-CV-6044, 2015 WL 790756 at *13, 14 W.D.N.Y. Feb. 25, 2015)

(moderate limitations in sitting, standing and walking not inconsistent with sitting, standing, and

walking six hours a day) (collecting cases).; Halloran, 362 F.3d at 33 (“The regulations do not

mandate the presumption that all sedentary jobs in the United States require the worker to sit

without moving for six hours, trapped like a seat-belted passenger in the center seat on a

transcontinental flight.”); Poupore, 566 F.3d at 306 (noting that a claimant's need to “get up and

move around from time to time does not preclude his ability to perform sedentary work”).

In addition, Dr. Ward’s opinion was drafted in October 2018 (Tr. 1443), after Plaintiff’s

second motor vehicle accident in June 2018, and before his May 2019 lumbar spine surgery. Tr.

658. Notably, Dr. Ward declined to complete the section of the form requesting him to specify

how long he believed Plaintiff’s limitations were expected to last. See Tr. 1443. As the ALJ

explained, after his July 2015 surgery, Plaintiff had been able to “return to work with minimal

limitations” until his second motor vehicle accident in June 2018. Tr. 19, 677-78. The ALJ further

explained that after Plaintiff underwent a second lumbar spine surgery in May 2019 (Tr. 603-14),

Plaintiff reported he was pleased with the results of the surgery and his pain was “not bad.” Tr. 19,

659.Thus, Dr. Ward’s opinion, at most, evaluates Plaintiff’s condition during the discrete period

between his July 2018 motor vehicle and his May 2019 surgery. See generally Barnhart v. Walton,

535 U.S. 212, 219-20, 122 S.Ct.1265, 1270, 152 L.Ed.2d 330, 339-40 (2002) (a claimant’s

functional limitations must meet the 12-month durational requirement to establish disability). In

any event, as previously noted, Dr. Ward’s opinion supports the ALJ’s RFC finding.

Furthermore, the ALJ’s RFC is supported by other substantial evidence, including the June

2019 opinion of Dr. Dave and the October 2019 opinion of Dr. Liu. Tr. 20-21, 646-49, 655-57. Dr.

Dave opined that Plaintiff may have mild to moderate limitations in his ability to perform heavy

lifting, carrying, pushing, and pulling and that he may have a mild need to avoid pulmonary

irritants, humidity, and temperature extremes. Tr. 648. Dr. Liu opined that Plaintiff had mild to

moderate limitations for bending, kneeling, squatting, lifting, carrying, overhead reaching, stair

climbing, and prolonged walking, sitting, and standing. Tr. 657.

The ALJ’s RFC is also supported by the assessments of state agency consultants, V.

Baronos, M.D. (“Dr. Baronos”), who reviewed the record in June 2019, and J. Lawrence, M.D.

(“Dr. Lawrence”), who reviewed the record in October 2019. Tr. 20-21, 78-79, 89-92. Dr. Baronos

opined that Plaintiff could lift and carry twenty pounds occasionally and ten pounds frequently;

could sit and stand and/or walk for six hours each in an eight-hour workday; could occasionally

stoop and climb ladders, ropes, and scaffolds; and had no other postural, manipulative, visual,

communicative, or environmental limitations. Tr. 74-75, 78-79. Dr. Lawrence opined that Plaintiff

could lift and carry twenty pounds occasionally and ten pounds frequently; could sit and stand

and/or walk for six hours each in an eight-hour workday, could occasionally stoop and climb

ramps, stairs, ladders, ropes, and scaffolds, and had no other postural, manipulative, visual,

communicative, or environmental limitations. Tr. 84-87, 89-92.

The ALJ reasonably found these four opinions persuasive, specifically noting that they

were consistent with each other and with the other medical evidence of record, as well as

supportive of the RFC for sedentary work. Tr. 20-21, 78-79, 89-92, 646-49, 655-57. Thus, the

assessments from Drs. Dave, Liu, Baronos, and Lawrence, as well as from Dr. Ward, provide

ample additional support for the ALJ’s determination that Plaintiff could at least perform a range

of sedentary work. See Ramsey v. Comm’ r of Soc. Sec., 830 F. App’x 37, 39 (2d Cir. 2020)

(upholding an RFC finding where “the ALJ occasionally deviated from consultative examiners’

recommendations to decrease [the claimant’s] RFC based on other evidence in the record”)

(emphasis in original)); Threatt v. Comm’r of Soc. Sec., No. 19-CV-25JJM, 2020 WL 4390695, at

*5 (W.D.N.Y. July 31, 2020); see also Baker v. Berryhill, No. 1:15-cv-00943-MAT, 2018 WL

1173782, at *2 (W.D.N.Y. Mar. 6, 2018) (“Where an ALJ makes an RFC assessment that is more

restrictive than the medical opinions of record, it is generally not a basis for remand.”) (internal

quotation marks and citations omitted).

The ALJ also considered other evidence in addition to the opinion evidence. Tr. 19-20. As

the ALJ considered, Plaintiff underwent successful lumbar spine surgery in 2015, and was able to

return to work with minimal limitations until a second motor vehicle accident in June 2018. Tr.

19, 677-78. After his second accident, Plaintiff underwent a second lumbar spine surgery in May

2019. Tr. 603-14. The ALJ noted that by July 2019, Plaintiff reported that he was pleased with the

results of the surgery and his pain was “not bad.” Tr. 19, 659. The ALJ also considered that, while

objective imaging studies taken in 2015 and 2018 confirmed the presence of degenerative disc

disease, herniation, stenosis, and osteophyte formation at multiple levels of the spine (Tr. 508-09,

520, 570, 660), x-rays taken after his second surgery were interpreted as normal post-operative

studies, further demonstrating improvement in Plaintiff’s condition. Tr. 19, 660-61. Treatment

records from Dr. Ward and Dr. Fishkin similarly showed that Plaintiff’s symptoms improved with

treatment. Tr. 337-42, 345-46, 354-82, 397-414, 417-442, 487-99, 698, 1001.

As the ALJ also noted, Plaintiff reported activities of daily living that demonstrated greater

functioning than one would expect given his allegations of disability, including self-care, cooking,

cleaning, doing laundry, and going shopping (discussed further below). Tr. 19, 647, 656. 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)). Considering the foregoing, substantial evidence supports the ALJ’s

RFC finding for sedentary work. Accordingly, the Court finds that any error in the ALJ’s failure

to evaluate Dr. Ward’s October 2018 opinion is harmless.

Plaintiff’s second point argues that the ALJ erred at step three by failing to articulate why

Plaintiff did not meet Listing 1.04. See ECF No. 8-1 at 13-16. Contrary to Plaintiff’s argument,

however, substantial evidence supports the ALJ’s finding that Plaintiff’s condition did not meet or

medically equal Listing 1.04, or any other Listing.

At step three, the Agency will find a claimant disabled, regardless of age, education, and

work experience, if he has an impairment that meets or equals one of the Listings in the appendix.

20 C.F.R. §§ 404.1520(a) (iii), 416.920(a)(iii). The listed impairments are the kind that are

permanent or expected to result in death. 20 C.F.R. §§ 404.1525(c)(iv), 416.925(c)(iv). Thus,

unless specified, an impairment can only satisfy a Listing if it has lasted, or can be expected to

last, for a continuous period of at least 12 months. Id. To meet a Listing, a claimant must have a

medically determinable impairment that satisfies all of the criteria in the Listing. 20 C.F.R. §§

404.1525(d), 416.925(d). Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“to match any Listed

impairment [in 20 C.F.R. Pt. 404, Subpt. P, App. 1], claimant must satisfy all of the specified

medical criteria . . . even a severe impairment will not qualify if it meets only some, but not all,

of the required medical criteria”); Talavera, 697 F.3d at 151; Naegele v. Barnhart, 433 F.Supp 2d.

319, 324 (W.D.N.Y. 2006). Furthermore, the burden is on Plaintiff to demonstrate that his

condition meets a listed impairment. See Bowen v. Yuckert, 482 U.S. 137 146 n.5 (1987); Beers v.

Comm’r of Soc. Sec., 449 F.Supp.3d 96, 100 (W.D.N.Y. 2020).

Listing 1.04 provides that a claimant must show:

Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal

stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture),

resulting in compromise of a nerve root (including the cauda equina) or the spinal

cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic

distribution of pain, limitation of motion of the spine, motor loss (atrophy

with associated muscle weakness or muscle weakness) accompanied by

sensory or reflex loss and, if there is involvement of the lower back, positive

straight-leg raising test (sitting and supine);

Or

B. Spinal arachnoiditis, confirmed by an operative note or pathology report

of tissue biopsy, or by appropriate medically acceptable imaging,

manifested by severe burning or painful dysesthesia, resulting in the need

for changes in position or posture more than once every 2 hours.

20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04 (2020).

Here, the ALJ properly found that the medical evidence of record failed to document the

sensory or motor loss with attendant symptoms required to meet Listing 1.04. Tr. 18. As the ALJ

also properly found, no medical source opined that Plaintiff met or medically equaled Listing 1.04.

Tr. 18. Furthermore, a review of the record reveals no evidence of motor loss, muscle weakness,

sensory loss, or reflex loss in the record, and no evidence of spinal arachnoiditis. See, e.g., Tr. 510,

515, 520, 567-68, 648, 656-57, 660, 665-66, 960, 1000. Nor has Plaintiff identified any such

evidence. See ECF No. 8-1 at 13-16. Moreover, after a thorough review of the record, both Dr.

Baronos and Dr. Lawrence found that Plaintiff did not meet Listing 1.04. Tr. 77, 88. In fact, Dr.

Lawrence specifically discussed records of Plaintiff’s condition after his June 2018 motor vehicle

accident and his May 2019 surgery, including subsequent treatment records and diagnostic

evidence, and nonetheless found that Plaintiff did not meet Listing 1.04. Tr. 92.

Plaintiff argues that the ALJ did not articulate his consideration of why Plaintiff did not

meet Listing 1.04. See ECF No. 8-1 at 13-16. Contrary to Plaintiff’s argument, however, the ALJ’s

decision reflects that he properly articulated his step three conclusion in a manner that permits the

Court to establish that the ALJ’s conclusions were supported by substantial evidence. See Beers,

2020 WL 1482329, at *3 (“[a]n ALJ’s unexplained conclusion [at step three] of the analysis may

be upheld where other portions of the decision and other ‘clearly credible evidence’ demonstrate

that the conclusion is supported by substantial evidence.”) (quoting Ryan v. Astrue, 5 F.Supp.3d

493, 507 (S.D.N.Y. 2014) (citation omitted)). Furthermore, even if an ALJ’s decision lacks an

express rationale for finding that a claimant does not meet a Listing, courts may still uphold the

ALJ’s determination if it is supported by substantial evidence. See Berry v. Schweiker, 675 F.2d

464, 468 (2d Cir. 1982); see also Otts v. Comm’r of Soc. Sec., 249 F.App’x 887, 889 (2d Cir. 2007)

(“While the ALJ might have been more specific in detailing the reasons for concluding that Otts’s

condition did not satisfy a listed impairment, the referenced medical evidence, together with the

lack of compelling contradictory evidence from the plaintiff, permits us to affirm this part of the

challenged judgment.”); Woodling v. Comm'r of Soc. Sec., No. 17-CV-0606, 2018 WL 4468824,

at *8 (W.D.N.Y. Sept. 18, 2018) (“[A]lthough not specifically outlined in his step three analysis,

it is clear from the ALJ’s discussion of the medical evidence that he took into consideration

evidence pertaining to Plaintiff’s spinal impairment.”).

In this case, the ALJ specifically referenced the “evidence discussed more fully below” to

support his finding that Plaintiff did not meet Listing 1.04, Tr. 18. There, the ALJ considered, for

instance, that Plaintiff walked with a normal gait and did not require the use of a cane. Tr. 19, 665,

673, 679, 684, 689, 938, 946, 963, 966, 969, 972, 975. The ALJ also noted evidence of full strength

of the extremities, normal sensation, and normal reflexes. Tr. 20, 648, 656-57. As the ALJ also

considered in his decision, there was no evidence of motor loss, muscle weakness, sensory loss,

reflex loss, or spinal arachnoiditis. Tr. 18, 19-21. Findings on physical examination routinely

showed 5/5 motor strength with intact sensation, intact reflexes, and no muscle atrophy. Tr. 510,

515, 520, 567-68, 648, 656-57, 660, 665-66, 960, 1000. Diagnostic imaging studies did not show

the presence of spinal arachnoiditis. Tr. 508-09. In addition, as noted above, after reviewing

Plaintiff’s available medical records, both Dr. Baronos and Dr. Lawrence found that Plaintiff did

not meet Listing 1.04. Tr. 77, 88.

Although Plaintiff points to the results of a thoracic spine MRI dated August 31, 2018,

showing degenerative disc disease with a right sided T9 disc herniation, this single thoracic MRI

result is insufficient to demonstrate that Plaintiff met the criteria of the listing. See ECF No. 8-1 at

15 (citing Tr. 467). In any event, the ALJ specifically cited this MRI in his analysis, noting that

“imaging studies confirm the presence of degenerative disc disease, herniation, stenosis, and

osteophyte formation at multiple levels of the spine.” Tr. 19, 503. Moreover, the record indicates

that this thoracic MRI study was included in the evidence reviewed by Dr. Baronos and Dr.

Lawrence (Tr. 79, 91), each of whom nevertheless found that Plaintiff did not meet Listing 1.04.

Tr. 77, 88. Based on the foregoing, the ALJ’s finding that Plaintiff did not meet or equal Listing

1.04 was supported by substantial evidence, and Plaintiff has not met his burden to show otherwise.

See 20 C.F.R. §§ 404.1526, 416.926.

Plaintiff’s final point of error contends that the ALJ erred in evaluating Plaintiff’s

testimony regarding his subjective complaints of symptoms. See ECF No. 8-1 at 16-19. Upon

review, however, the Court finds that the ALJ properly considered Plaintiff’s alleged symptoms

and subjective complaints but reasonably found that Plaintiff’s statements concerning the intensity,

persistence, and limiting effects of his symptoms were not entirely consistent with the medical and

other evidence of record. See Tr. 18-19; 20 C.F.R. § 404.1529; SSR 16-3p. Therefore, Plaintiff’s

argument lacks merit.

While an ALJ must take Plaintiff’s claims into account, the ALJ need not accept subjective

complaints without question. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). Rather, the ALJ

exercises discretion in weighing the consistency of Plaintiff's allegations considering the other

evidence in the record. Id. Great deference should be given the ALJ’s judgment because she heard

the witness testify and observed his demeanor. Gernavage v. Shalala, 882 F. Supp. 1413, 1419 n.6

(S.D.N.Y. 1995); Serra v. Sullivan, 762 F. Supp. 1030, 1034 (W.D.N.Y. 1991). Accordingly,

review of an ALJ’s subjective symptom evaluation is limited to determining whether the ALJ’s

reasons for discrediting the allegations are reasonable and supported by substantial evidence in the

record. Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2012) (Because it is the function of the

Commissioner and not the reviewing courts to resolve evidentiary conflicts and to appraise the

credibility of witnesses, including the claimant, the Court will defer to the ALJ’s determination if

it is supported by substantial evidence).

First, the ALJ considered that Plaintiff’s subjective complaints of disabling limitations

were contradicted by the medical opinion evidence discussed in detail above. Tr. 21. Consultative

examiner Dr. Dave opined that Plaintiff may have mild to moderate limitations in his ability to

perform heavy lifting, carrying, pushing, and pulling. Tr. 648. Similarly, consultative examiner

Dr. Liu opined that Plaintiff had mild to moderate limitations for bending, kneeling, squatting,

lifting, carrying, overhead reaching, stair climbing, and prolonged walking, sitting, and standing.

Tr. 657. State agency reviewers Dr. Baronos and Dr. Lawrence both found that Plaintiff could

perform light work with additional limitations in his ability to stoop and climb. Tr. 78-79, 89-92.

Notably, both consultative examinations and the state agency consultants’ review of the evidence

were conducted after Plaintiff’s second surgery in May 2019. Tr. 79, 91-92, 646, 655. And

although Dr. Ward’s opinion was drafted in October 2018, after Plaintiff’s second motor vehicle

accident in June 2018 and before his May 2019 lumbar spine surgery, he likewise opined that

Plaintiff had only moderate limitations. Tr. 1443.

The ALJ also reasonably determined that Plaintiff’s subjective complaints were not

consistent with the objective, clinical, and longitudinal treatment evidence of record. Tr. 19.

Physical examination findings frequently showed that, despite some limitations in range of motion

in his back and shoulders, tenderness in his back, and inconsistent results on straight leg raising

test, Plaintiff retained 5/5 muscle strength throughout with no muscle atrophy; his gait and stance

were normal; his sensation and reflexes were intact; and he had had full range of motion in his

other extremities. Tr. 509-10, 514-15, 519-20, 524-25, 528-29, 532-33, 536-37, 540-41, 567-68,

647-48, 656-57, 660, 665-66, 1000.

Moreover, Dr. Ward’s chiropractic treatment notes often show that Plaintiff’s back pain

was improving with treatment. Tr. 337-42, 345-46, 354-82, 397-414, 417-442, 487-99. Plaintiff

also reported to Dr. Fishkin that he was “pleased” with the results of his surgery and that any

lingering pain was “not bad.” Tr. 998. See Ecklund v. Comm’r of Soc. Sec., 349 F.Supp.3d 235,

248 (W.D.N.Y. 2018) (substantial evidence supported ALJ’s evaluation of subjective complaints

where, inter alia, ALJ recognized claimant’s difficulties using his upper extremities and multiple

surgeries, medical evidence showed claimant’s condition was improving, and medical sources

opined claimant had minimal to no restrictions for walking, standing, sitting long periods, bending,

stair climbing, lifting, and carrying); see also Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir.

1983) (“a remediable impairment is not disabling.”).

As the ALJ noted, the treatment records documented numerous reports of improvement

and/or symptom relief from Plaintiff’s various treatment modalities. Tr. 19, 337, 339-42, 346, 355,

357, 362-62, 364-82, 397-409, 411-14, 417-42, 666, 698, 1001. See Mongeur v. Heckler, 722 F.2d

1033, 1039 (2d Cir. 1983) (a condition is not severe if the impairment improves from treatment).

Specifically, Dr. Fishkin reported that, after his 2015 surgery, Plaintiff was able to return to work

with minimal limitations until the 2018 motor vehicle accident. Tr. 677-78. Furthermore, after his

second surgery, Plaintiff reported that his pain was “not bad.” Tr. 998. Likewise, in July 2019, Dr.

Fishkin observed that Plaintiff “continues to recover well from the surgery” from his second

surgery. Tr. 1001. Thus, the ALJ’s assessment of improvement is supported by the treatment

records and the medical opinion evidence.

Finally, the ALJ properly considered Plaintiff’s daily activities. Tr. 19, 21. 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, 2018 WL

6060484, at *5. Here, the ALJ noted that Plaintiff’s activities included the ability to care for

himself, prepare meals, clean, do laundry, and go shopping. Tr. 19, 647, 656. Plaintiff also

indicated that he read, watched television, cared for his daughter, walked daily, drove, and took

public transportation. Tr. 230-34, 647, 656. See 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);

Wolfe v. Comm’r of Soc. Sec., 272 F. App’x 21, 22 (2d Cir. 2008) (summary order) (ALJ properly

discounted claimant’s allegations regarding her symptomatology based on her statements that she

attended church, shopped, and attended weekly football games); Donnelly v. Barnhart, 105 F.

App’x 306, 308 (2d Cir. 2004) (summary order) (ALJ properly discounted allegations regarding

symptomatology based on statements that claimant cooked dinner, folded clothes, and sewed); see

also Poupore, 556 F.3d at 306 (ALJ may reject Plaintiff’s subjective allegations in light of

inconsistent evidence of daily functional ability, which in Poupore’s case, included childcare). The

ALJ reasonably found that these activities, as well as the rest of the foregoing evidence, indicated

that Plaintiff’s impairments were less limited than he had alleged. See Tr. 19, 21.

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 his burden of proving that no

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

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 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).

CONCLUSION

Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 8) is DENIED, and the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 10) 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.

Mere A Bard

DON D. BUS

UNITED STATES MAGISTRATE JUDGE

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