The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANYSHA M.,
Plaintiff,
V. 3:19-CV-0271
° (CFH)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
APPEARANCES: OF COUNSEL:
LACHMAN & GORTON PETER A. GORTON, ESQ.
P.O. Box 89
1500 East Main Street
Endicott, New York 13761-0089
Attorneys for plaintiff
U.S. SOCIAL SECURITY ADMIN. JAMES J. NAGELBERG, ESQ.
J.F.K. Federal Building, Room 625
15 New Sudbury Street
Boston, Massachusetts 02203
Attorneys for defendant
CHRISTIAN F. HUMMEL
United States Magistrate Judge
MEMORANDUM-DECISION & ORDER"
Currently before the Court, in this Social Security action filed by Anysha M.
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff's motion
for judgment on the pleadings and Defendant’s motion for judgment on the pleadings.
(Dkt. Nos. 9, 13, 14, Attach. 1.) For the reasons set forth below, Plaintiff's motion for
Parties consented to a Magistrate Judge’s jurisdiction of the full disposition of this case. Dkt. Nos. 4, 6.
judgment on the pleadings is denied and Defendant’s motion for judgment on the
pleadings is granted.
I. BACKGROUND
A. Facts
Plaintiff was born in 1989, making her 25 years old at the alleged onset date and
29 years old at the date of the ALJ’s decision. Plaintiff reported completing the ninth
grade. She has previous work as a hair stylist. Plaintiff initially alleged disability due to
scoliosis of the thoracic spine, levoscoliosis of the lumbar spine, bipolar disorder,
borderline personality disorder, depression, and posttraumatic stress disorder.
B. Procedural History
. Plaintiff applied for a period of disability and disability insurance benefits as well
as Supplemental Security Income on October 15, 2015, alleging disability beginning on
December 31, 2014. (T. 108-09, 187-96.)? Plaintiffs applications were initially denied
on April 15, 2016, after which she timely requested a hearing before an Administrative
Law Judge (“ALJ”). (T. 97-115.) She appeared at an administrative hearing before ALJ
Jennifer Gale Smith on April 26, 2018. (T. 48-80.) On May 23, 2018, the ALJ issued a
written decision finding Plaintiff was not disabled under the Social Security Act. (T. 10-
47.) On January 8, 2019, the Appeals Council denied Plaintiff's request for review,
making the ALJ's decision the final decision of the Commissioner. (T. 1-6.)
2 The Administrative Transcript is found at Dkt. No. 8. Citations to the Administrative Transcript will
be referenced as “T.” and the Bates-stamped page numbers as set forth therein will be used rather than
the page numbers assigned by the Court’s CM/ECF sone filing system.
C. ALJ’s Decision
First, the ALJ found that Plaintiff meets the insured status requirements of the
Social Security Act through December 31, 2021. (T. 16.) Second, the ALJ noted that
there “is significant work activity after the date first insured,” but concluded that “the
5 record does not clearly establish that the claimant has engaged in substantial gainful
activity for more than a brief period.” (/d.) Third, the ALJ found that Plaintiff's history of
lower left extremity fracture and surgical repair, degenerative disc disease of the lumbar
and cervical spine, lupus, fibromyalgia, bipolar disorder, posttraumatic stress disorder
(“PTSD”), history of learning disorder, and substance abuse to be severe impairments.
(T. 16-18.) Fourth, the ALJ determined that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals one of the listed
. impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). (T. 18-20.) In so
doing, the ALJ considered Listings 1.02 (major dysfunction of a joint), 1.04 (disorders of
the spine), 11.04 (vascular insult to the brain), 14.09 (inflammatory arthritis), and near
listings for 1.00 (musculoskeletal conditions), 11.00 (neurological disorders) and 14.00
(impairments of the immune system) as well as Listings 12.02 (neurocognitive
disorders), 12.04 (depression and related disorders), 12.05 (intellectual disorder), 12.06
(anxiety and related disorders), 12.08 (personality and impulse-control disorder), 12.11
(neurodevelopmental disorders) and 12.15 (trauma- and stressor-related disorders) and
near listings under 12.00 for mental disorders. (/d.)
Fifth, the ALJ concluded that Plaintiff has the residual functional capacity (“RFC”)
to perform sedentary work with additional limitations. (T. 20.) The ALJ’s RFC started
that Plaintiff:
should not climb ladders, ropes and scaffolds; should not
balance, kneel, crouch, and crawl; can occasionally climb
ramps, climb stairs, and stoop; can frequently reach; should
not be required to push and pull; should be able to use a cane
for ambulation; can work at simple, routine, and repetitive
tasks; should work in a “low stress” job defined as occasional
decision-making, occasional judgment required, and
occasional changes in the work setting; should work at goal-
oriented work rather than production pace rate work; and
should have occasional contact with co-workers, supervisors,
and the public.
(T. 20-21.) Sixth, the ALJ found that Plaintiff is unable to perform any past relevant
work. (T. 37-38.) Seventh, the ALJ found that Plaintiff can perform other jobs existing
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in significant numbers in the national economy, and, thus, Plaintiff is not disabled. (T.
38-41.)
D. Arguments
Plaintiff argues the ALJ failed to properly assess her fibromyalgia, including
giving great weight to the opinion of consultative examiner John Fkiaras, M.D., which
was submitted prior to the diagnosis of fibromyalgia, and that she erroneously weighed
tr!
the opinions of Plaintiff's treating providers. (Dkt. No. 9, at 12-22.) Plaintiff also
contends that the ALJ failed to properly assess her ability to stay on task and/or
maintain attendance and that the Step Five determination is not supported by
substantial evidence. (/d. at 22-25.)
Defendant argues that the ALJ properly considered the lack of objective evidenc
supporting Plaintiff's fibromyalgia symptoms and limitations and afforded great weight to
Dr. Fkiaras’ opinion. (Dkt. No. 13, at 4-14.) Defendant next contends the ALJ was not
required to afford controlling weight to the opinions of Plaintiff's treating providers
despite the fibromyalgia diagnosis. (/d. at 14-15.) Defendant argues that the ALJ
properly considered the opinion evidence regarding time off-task and absenteeism, and
that Plaintiff has waived any challenge to the ALJ’s hypothetical question to the
vocational expert. Finally, Defendant contends that the ALJ’s Step Five analysis is
supported by substantial evidence. (/d. at 16-19.)
On reply, Plaintiff reiterates her arguments made in her brief, which will not be
restated here. Plaintiff also asserts that the diagnosis of fibromyalgia could have
. reasonably changed Dr. Fkiaras’ opinion “because it would explain, among other
thing[s], the extent of Plaintiff's severe pain and other symptoms that contribute to her
inability to work on a regular and continuing basis.” (/d.) Plaintiff also argues the
opinion from treating primary care provider Najib Azad, D.O., is consistent with the
record evidence and Dr. Calkins’ opinion and that this opinion “cannot be said to be
inconsistent with Dr. Fkiaras’ assessment of ‘mild to moderate limitation’ to standing and
walking, which [] is too vague to constitute substantial support for the ALJ’s RFC.” (/d.
at 3.)
ll. LEGAL STANDARDS
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health &
Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's
determination will be reversed only if the correct legal standards were not applied, or it
was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied
correct legal principles, application of the substantial evidence standard to uphold a
finding of no disability creates an unacceptable risk that a claimant will be deprived of
the right to have her disability determination made according to the correct legal
principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano,
615 F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to
“more than a mere scintilla,” and has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971). Where evidence is deemed
susceptible to more than one rational interpretation, the Commissioner’s conclusion
must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). |
supported by substantial evidence, the Commissioner’s finding must be sustained “even
where substantial evidence may support the plaintiff's position and despite that the
court’s independent analysis of the evidence may differ from the [Commissioner’s].”
Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court
must afford the Commissioner’s determination considerable deference, and may not
substitute “its own judgment for that of the [Commissioner], even if it might justifiably
have reached a different result upon a de novo review.” Valente v. Sec’y of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B. Disability Standard
The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§
404.1520, 416.920. The Supreme Court has recognized the validity of this sequential
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evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987).
The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not,
the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits his physical or
mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations. If the claimant
has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age,
education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant’s severe
impairment, he has the residual functional capacity to perform
his past work. Finally, if the claimant is unable to perform his
past work, the [Commissioner] then determines whether there
is other work which the claimant could perform. Under the
cases previously discussed, the claimant bears the burden of
the proof as to the first four steps, while the [Commissioner]
must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord Mcintyre v. Colvin, 758
F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can
made, the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S.
20, 24 (2003).
lll. DISCUSSION
A. Fibromyalgia
Social Security Ruling (“SSR”) 12-2p explains that fibromyalgia “is a complex
medical condition characterized primarily by widespread pain in the joints, muscles,
tendons, or nearby soft tissues that has persisted for at least three months.” 2012 WL
3104869, at *2 (July 23, 2012). When determining an RFC based on fibromyalgia, the
ALJ is not entitled to rely solely on objective evidence -- or lack thereof -- related to
fibromyalgia, but must consider all relevant evidence, including the longitudinal
treatment record. See Campbell v. Colvin, 13-CV-0451 (GLS/ESH), 2015 WL 73763, at
m| “5 (N.D.N.Y. Jan. 6, 2015) (citing SSR 12-2p, 2012 WL 3104869, at *3). “A ‘mere
diagnosis of fibromyalgia without a finding as to the severity of symptoms and limitation
does not mandate a finding of disability,’ but denying a fibromyalgia-claimant’s claim of
disability simply because such evidence is not corroborated by objective medical
evidence is reversible error.” Campbell, 2015 WL 73763, at “6 (citing Grenier v. Colvin,
13-CV-0484 (GLS), 2014 WL 3509832, at *3-4 (N.D.N.Y. July 14, 2014)).
Plaintiff argues that the ALJ failed to assess her fibromyalgia properly because
“there is no meaningful discussion of [fibromyalgia] or its impact on her ability to work in
forming the RFC or weighing the medical opinion evidence.” (Dkt. No. 9, at 12-22.)
Plaintiff also contends that the ALJ required Plaintiff to prove more than is legally
required and focused on a lack of chronic positive objective clinical findings. (/d. at 13-
14.) The Court is not persuaded by these arguments.
First, the ALJ found fibromyalgia to be a severe impairment and, within the
severity finding, noted SSR 12-2p. (T. 16.) The ALJ further considered Plaintiff's
various severe impairments, including her fibromyalgia and medical treatment in detail
when determining her RFC and weighing the evidence of record. (T. 16-37.) Indeed,
the ALJ explained that the medically-determinable impairments fully accounted for the
. alternate diagnoses or notations from elsewhere in the record. (T. 16.) Examples of
such alternate diagnoses or notations which might have also accounted for Plaintiff's
alleged fibromyalgia and related symptoms -- particularly widespread pain -- include
residuals from a remote motor vehicle accident, back injury, low back pain with sciatica,
lumbar facet arthropathy, strain of lumbar paraspinous muscle, strain of mid-back,
scoliosis, levoscoliosis of the lumbar spine, acquired torticollis, discogenic back
disorder, degeneration of intervertebral disc of lumbar region, degenerative disc disease
of thoracic spine, history of closed treatment of clavicular fracture, spinal fracture,
arthritis, osteoporosis, cervical myofascial strain, cervical radiculopathy, bilateral
shoulder pain, bursitis of left shoulder, tarsal tunnel syndrome, damage to left wrist in
2003, history of treatment for lower leg fracture, bilateral foot pain, bilateral plantar
fasciitis, chronic fatigue syndrome, myalgias, and arthralgias. (T. 16-17.) This portion
of the ALJ’s discussion indicates that the ALJ was aware of the various impairments
which could cause Plaintiff's widespread pain, including fibromyalgia, and that she
sought to account for them properly in the severity determination. (T. 16.)
Second, the ALJ noted that she specifically considered Listings 14.09 for
inflammatory arthritis and 14.00 for impairments of the immune system when assessing
whether Plaintiff had an impairment or combination of impairments which met or
medically equaled a listed impairment. (T. 18.) SSR 12-2p explains that fibromyalgia
cannot meet a listing because it is not a listed impairment, but the Agency determines
whether fibromyalgia medically equals a listing or medically equals a listing in
combination with at least one other medically-determinable impairment at Step Three
. and references Listing 14.09D for inflammatory arthritis as an example. 2012 WL
3104869, at *6. Further, in considering Plaintiff's impairments in conjunction with the
listings, the ALJ noted that although Plaintiff has been treated for widespread pain since
the date first insured, the record did not reveal signs, symptoms and laboratory findings
equivalent to an established listing. (T. 18.) The ALJ also concluded that Plaintiff's
impairments, including fibromyalgia, lupus, and cervical spine disorder, did not result in
sustained disturbance of gross and dexterous movements or the inability to perform fine
and gross manipulation effectively. (T. 19.) The ALJ’s detailed explanation of her
consideration of the Listings indicates that she properly considered Plaintiff's
fibromyalgia and other severe impairments at this step in the sequential evaluation. (T.
16.)
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Third, the ALJ discussed Plaintiff's alleged chronic pain in her back and neck at
length throughout her consideration of Plaintiffs physical RFC. (T. 21-31.) For
example, the ALJ noted Plaintiff's overall positive response to conservative treatment
for her left lower extremity, spine disorders, fibromyalgia, and lupus failed to support
5 greater exertional and non-exertional limitations. (T. 21.) The ALJ also indicated formal
mental health treatment might provide some ancillary benefit to fibromyalgia or chronic
pain symptoms, but the focus of mental health treatment was Plaintiff's psychological
symptoms. (T. 22.) The ALJ noted Plaintiff's reports of 10 out of 10 pain, emergency
department visits between July 2016 and November 2016 for uncontrolled symptoms
such as pain and muscle spasms, as well as pain management and other treatment for
pain. (T. 22, 267-68, 343-44, 433, 548, 551608-17, 740, 742.) In discussing the
. evidence of record, the ALJ also noted that Plaintiff generally presented with more
subjective findings for tenderness and decreased range of motion of her spine and hips
and few exams showed active muscle spasms, trigger points/tender points of the spine
or extremities, or positive fibromyalgia test. (T. 25-26.) The ALJ also considered
medical opinions as to limitations caused by Plaintiff's pain, including that of Plaintiff's
treating pain management specialist, therapist, and other treating providers. (T. 26-31,
499-508, 583, 585-91, 728-29, 802, 812, 837, 855, 883, 889.) The ALJ's references to
fibromyalgia and chronic widespread pain throughout her RFC analysis indicate that sh
properly considered Plaintiff's fibromyalgia in determining Plaintiff's physical limitations
that are supported by the evidence of record. (T. 21-31.)
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Fourth, it is of note that the ALJ found both fibromyalgia and lupus to be severe
impairments and appears to have considered them in conjunction despite Plaintiff's
indication that fibromyalgia was a misdiagnosis. (T. 16, 21, 55, 57-58, 820, 890.) The
ALJ noted Plaintiff's testimony that she had been misdiagnosed with fibromyalgia until
5 receiving a recent diagnosis of lupus. (T. 25, 55, 57-58.) Treatment notes from March
and April 2018 indicate that Plaintiff did not believe fibromyalgia was the correct
diagnosis and that she was frustrated and angry at having been diagnosed with
fibromyalgia as she was more recently diagnosed with lupus. (T. 820, 890, 892.) The
ALJ's inclusion of lupus in her severity finding and subsequent consideration of both
lupus and fibromyalgia indicates that, throughout her decision, the ALJ assessed
various causes for Plaintiff's alleged chronic widespread pain -- including fibromyalgia.
. (T. 16, 21-31.)
Finally, the Court is not convinced that the ALJ improperly focused on a lack of
chronic positive objective clinical findings in considering Plaintiff's fibromyalgia and
other impairments. (Dkt. No. 9, at 13-14.) As Defendant points out, the ALJ found
Plaintiff's fibromyalgia to be severe and also “looked to objective evidence when
evaluating her other severe physical impairments” as well as “factors beyond objective
testing in evaluating Plaintiff's fibromyalgia symptoms and limitations, such as her
activities, work history during the relevant period, positive responses to conservative
treatment, subjective reports of no pain at times, and failure to take prescribed
medication.” (Dkt. No. 13, at 6-8; T. 19, 21-22, 24-25, 55-57, 69, 201-11, 217, 219-20,
267-68, 343-44, 360, 362-63, 373-73, 382, 385, 389-90, 433-34, 437, 439, 441, 467,
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531, 533, 542, 547-48, 552-55, 557, 567, 573, 575, 592, 597, 609, 611-12, 654, 721,
740, 749, 771-75, 780, 803, 806, 810, 820, 832, 836, 860, 862, 876, 894, 899, 901-03.)
Further, as SSR 12-2p explains, objective evidence is needed to establish the presence
of a medically-determinable impairment and, in the case of fibromyalgia, “longitudinal
5 records reflecting ongoing medical evaluation and treatment from acceptable medical
sources are especially helpful in establishing both the existence and severity of the
impairment.” 2012 WL 3104869, at *3. Rather than improperly focusing on positive
objective findings to discount Plaintiff's allegations of fibromyalgia and related
symptoms, the ALJ’s decision indicates a careful consideration of Plaintiff's multiple
severe impairments along with the various medical opinions and other evidence of
record to determine Plaintiff's supported physical and mental limitations. (T. 21-37.)
. Therefore, the Court finds that the ALJ did not rely solely on a lack of objective evidence
related to fibromyalgia in finding Plaintiff's allegations of disabling pain were not fully
supported by the record. See Campbell, 2015 WL 73763, at *5.
For the reasons above, the Court is not persuaded by Plaintiffs arguments that
the ALJ’s decision lacks a meaningful discussion of fibromyalgia or requires Plaintiff to
prove more than is legally required. (Dkt. No. 9, at 12-22.) The Court finds that the ALJ
properly considered Plaintiff's fibromyalgia and other impairments in making her various
findings and that her analysis is supported by substantial evidence. Thus, remand not
required on this basis.
B. Opinion Evidence and RFC
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RFC is “what [the] individual can still do despite his or her limitations. Ordinarily,
RFC is the individual's maximum remaining ability to do sustained work activities in an
ordinary work setting on a regular and continuing basis... .” A “regular and continuing
basis” means eight hours a day, for five days a week, or an equivalent work schedule.
Balles v. Astrue, 11-CV-1386 (MAD), 2013 WL 252970, at *2 (N.D.N.Y. Jan. 23, 2013)
(citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL
374184, at *2)).
The Second Circuit has long recognized the ‘treating physician rule’ set out in 20
C.F.R. §§ 404.1527(c), 416.927(c). “[T]he opinion of a claimant's treating physician as
to the nature and severity of the impairment is given ‘controlling weight’ so long as it is
‘well-supported by medically acceptable clinical and laboratory diagnostic techniques
. and is not inconsistent with the other substantial evidence in the case record.” Greek v.
Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128
(2d Cir. 2008)). However, “. .. the opinion of the treating physician is not afforded
controlling weight where . . . the treating physician issued opinions that are not
consistent with other substantial evidence in the record, such as the opinions of other
medical experts.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
In deciding how much weight to afford the opinion of a treating physician, the ALJ
must “explicitly consider, inter alia: (1) the frequency, length, nature, and extent of
treatment; (2) the amount of medical evidence supporting the opinion; (3) the
consistency of the opinion with the remaining medical evidence; and (4) whether the
physician is a specialist.” Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d
14
409, 418 (2d Cir. 2013). However, where the ALJ’s reasoning and adherence to the
regulation is clear, and it is obvious that the “substance of the treating physician rule
was not traversed,” no “slavish recitation of each and every factor” of 20 C.F.R. §§
404.1527(c) and 416.927(c) is required. Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir.
5 2013) (summary order) (citing Halloran, 362 F.3d at 31-32). The factors for considering
opinions from non-treating medical sources are the same as those for assessing
treating sources, with the consideration of whether the source examined the claimant
replacing the consideration of the treatment relationship between the source and the
claimant. 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6).
In Estrella v. Berryhill, the Second Circuit has more recently addressed an ALJ's
failure to “explicitly” apply the regulatory factors set out in Burgess when assessing the
. weight to accord to a treating physician’s opinion. 925 F.3d 90 (2d Cir. 2019). In
Estrella, the Court explained that such failure is a procedural error and remand may be
appropriate “[i]f ‘the Commissioner has not [otherwise] provided ‘good reasons’ [for its
weight assignment][.]” 925 F.3d at 96 (alteration in original) (quoting Halloran, 362 F.3d
at 32). The Court further clarified, “[i]f, however, ‘a searching review of the record’
assures us ‘that the substance of the treating physician rule was not traversed,’ we will
affirm.” Estrella, 925 F.3d at 96 (quoting Halloran, 362 F.3d at 32). The Court also
noted the question of “whether ‘a searching review of the record . . . assure[S us]. . .
that the substance of the . . . rule was not traversed” is “whether the record otherwise
provides ‘good reasons’ for assigning ‘little weight’ to [the treating psychiatrist’s]
opinion.” Id.
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In Estrella, the Second Circuit concluded that the record did not otherwise
provide good reasons for the weight afforded to the treating physician’s opinion and
pointed to “a number of treatment notes not cited by the ALJ reflect[ing] a more serious
impairment than the ALJ acknowledged[,]” the plaintiff's Global Assessment of
5 Functioning (“GAF”) scores, and the opinion of a one-time consultative psychologist, all
of which the Court concluded did “not provide good reasons for assigning little weight to
[the treating psychiatrist’s] opinion.” 925 F.3d at 96-98. Finally, the Court indicated that
“the ALJ’s two cherry-picked treatment notes [did] provide ‘good reasons’ for
minimalizing [the treating psychiatrist's] opinion[,]’ and noted that “[t]he ALJ made no
attempt to ‘reconcile’ or ‘grapple with’ the apparent longitudinal inconsistencies in the
plaintiff's mental health—one of the motivations beyond Burgess’s procedural
. requirement of explicit consideration of ‘the frequen[cy], length, nature, and extent of [a
physician’s] treatment.” /d. at 97 (quoting Selian, 708 F.3d at 418-19). The Court
chose to remand the Estrella case “[i]n light of the ALJ’s failure to ‘explicitly consider’
the first Burgess factor before assigning ‘little weight’ to the opinion of Estrella’s treating
psychiatrist, and the lack of ‘other good reasons’ to support that decision” and
concluded “that the ALJ traversed the substance of the treating physician rule.” /d. at
tri
98.
The Second Circuit recently reiterated its Estrella findings in Ferraro v. Saul,
indicating that the ALJ did not explicitly consider the frequency, length, nature, and
extent of treatment that the claimant had with his treating physicians and did not
otherwise provide “good reasons” for assigning reduced weight to the opinions of those
16
physicians. __ F. Appx____, 2020 WL 1189399, at *2-3 (2d Cir. Mar. 12, 2020). The
ALJ concluded that a searching review of the record did not assure the Court that the
substance of the treating physician rule was not traversed. /d. The Ferraro Court also
indicated that “merely acknowledging the existence of treatment relationships is not the
5 same as explicitly considering ‘the frequency, length, nature, and extent of treatment.”
Id. at *2.
1. Medical Opinion Evidence
“An ALJ should consider ‘all medical opinions received regarding the claimant.”
Reider v. Colvin, 15-CV-6517P, 2016 WL 5334436, at *5 (W.D.N.Y. Sept. 23, 2016)
(quoting Spielberg v. Barnhart, 367 F. Supp. 2d 276, 281 (E.D.N.Y. 2005)). “The ALJ is
. not permitted to substitute his own expertise or view of the medical proof for the treating
physician’s opinion or for any competent medical opinion.” Greek, 802 F.3d at 375
(citing Burgess, 537 F.3d at 131). In assessing a plaintiff's RFC, an ALJ is entitled to
rely on opinions from both examining and non-examining State agency medical
consultants because such consultants are qualified experts in the field of social security
disability. See Frye ex rel. A.O. v. Astrue, 485 F. App’x 484, 487 (2d Cir. 2012)
(summary order) (“The report of a State agency medical consultant constitutes expert
opinion evidence which can be given weight if supported by medical evidence in the
record.”); Little v. Colvin, 14-CV-0063 (MAD), 2015 WL 1399586, at *9 (N.D.N.Y. Mar.
26, 2015) (“State agency physicians are qualified as experts in the evaluation of medica
17
issues in disability claims. As such, their opinions may constitute substantial evidence if
they are consistent with the record as a whole.”) (internal quotation marks omitted).
In March 2016, Dr. Fkiaras conducted a consultative orthopedic examination, at
which time Plaintiff reported being hit by a car at the age of six and having scoliosis
5 since childhood. (T. 433-38.) Plaintiff indicated that physical therapy three times a
week did not alleviate her back pain and oral medications provided mild relief. (T. 433.)
She denied doing any cooking, cleaning, laundry, or shopping and took part in childcare
daily with assistance as well as showering, bathing, and dressing daily. (T. 434.) Upon
examination, Plaintiff appeared to be in no acute distress; had a slow gait and normal
station; was unable to walk on her heels and toes, could only squat one-third; used no
assistive device; needed no help changing for the exam or getting on and off of the
. exam table; and was able to rise from a chair without difficulty. (/d.) Plaintiff had a
limited range of motion in the thoracic and lumbar spine as well as the bilateral hips, but
no spinal or paraspinal tenderness, sacroiliac joint or sciatic notch tenderness or spasm,
scoliosis, kyphosis, or trigger points; and straight leg raise testing was negative
bilaterally. (T. 434-35.) A lumbosacral X-ray was negative. (T. 435, 437.)
Dr. Fkiaras diagnosed thoracic and lower back pain as well as history of
scoliosis, being hit by a motor vehicle, left lower extremity fracture and surgical repair.
(T. 435.) He opined that Plaintiff should avoid any repetitive heavy lifting, carrying,
pushing, pulling, squatting, kneeling, and crouching. (/d.) He also opined that Plaintiff
had a moderate limitation in bending and mild-to-moderate limitations in walking and
standing. (/d.)
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The ALJ afforded great weight to Dr. Fkiaras’ opinion, noting that she did not
adopt all of the limitations identified and that the opinion was generally supported by the
objective medical evidence indicating that Plaintiff was “precluded from performing very
heavy, heavy, medium, and light work activity due to the combination of physical
5 impairments, but otherwise retains the maximum [RFC] to perform a range of sedentary
activity.” (T. 25.)
In March and April 2017, physical therapist Laura Bozuhoski, PT, indicated that
Plaintiff had functional deficits in sitting and standing, should avoid static prolonged
positions, should change activity every 15-20 minutes, and was at risk for falls. (T. 583,
728-29.) The ALJ afforded little weight to these assessments, noting that they were
based on only one to two examinations and were not fully supported by other scant
. chronically positive objective clinical findings. (T. 27, 570, 583, 729.) The ALJ also
noted that significant limitations in sitting and the need to change positions frequently
appeared to be based on Plaintiffs own statements, not objective clinical or laboratory
findings. (T. 27, 892.)
The ALJ afforded little weight to the medical opinions/assessments from
Plaintiffs primary care providers Dr. Azad and Renee Pranovilla, RN, between October
2016 and October 2017, indicating that Plaintiff was incapable of working and unable to
walk long distances, endorsing her use of a personal care attendant for up to 20 hours
per week, or recommending the use of an assistive device when walking outdoors or
longer distances such as a power scooter or mechanical wheelchair. (T. 27-28, 499-
508, 802, 808, 812, 837, 855, 883.) The ALJ noted that the finding that Plaintiff is
19
disabled or unable to work is an issue reserved to the Commissioner. (T. 27.) Dr.
Azad's October 2017 opinion indicated that Plaintiff could occasionally lift and carry up
to 20 pounds, sit and stand for less than an hour at a time for a total of four hours each
per day, walk for one hour at a time for a total of one hour per day, occasionally
5 balance, never climb, stoop, crouch, kneel or crawl, frequently reach, handle and feel,
and occasionally push/pull. (T. 499-502.) Within that opinion, Dr. Azad also indicated
Plaintiff should avoid moderate exposure to noise and people and that her pain was
constantly severe enough to interfere with attention and concentration and quality sleep
and could produce fatigue. (T. 503-04.) Dr. Azad opined that Plaintiff was likely to be
off-task for a portion of the day due to her impairments (an average of 60-80 percent of
the day) and would be absent more than four days per month. (T. 504.)
. The ALJ stated that the RFC reflected Dr. Azad’s opinion that Plaintiff “nas some
difficulty walking prolonged periods, but the remaining limitations are not consistent with
the scant findings noted on x-rays and MRI scans of [her] cervical spine, lumbar spine,
and knees.” (T. 27.) The ALJ also indicated that greater postural, manipulative, and
environmental limitations and restrictions were not supported by the objective medical
evidence and other substantial evidence and significant absences and off-task behavior
were speculative given the fact that Plaintiff did not have a history of multiple cancelled
medical appointments with Dr. Azad. (T. 27-30.)
In November 2017, Plaintiffs therapist Patricia McLearn, LCSW, indicated that
Plaintiff had limited activities of daily living and at times had debilitating pain made
worse by exposure to weather, particularly cold weather. (T. 889.) The ALJ afforded
20
little weight to this assessment, stating that Ms. McLearn’s treatment of Plaintiff was
limited to her mental health disorders and there were few observations regarding
uncontrolled pain noted in Ms. McLearn’s progress notes to support her assessment.
(T. 26.) The ALJ also indicated that the “notations of difficulties performing activities of
5 daily living were not based on personal observations of the claimant but based on the
claimant’s subjective self-reports of symptoms and functional limitations that are not
well-supported[.]” (T. 26-27.)
In May 2018, treating pain management specialist Anne Calkins, M.D., certified
that Plaintiff suffered from intractable pain with significant limitation to function and likely
PTSD related to the death of her infant son. (T. 889.) The ALJ afforded partial weight
to this opinion, indicating that it was not well-supported by the various examinations
. showing that Plaintiff did not appear to be in any acute distress as well as the lack of
recurrent emergency department visits or inpatient hospitalizations. (T. 26.) The ALJ
indicated that, nonetheless, the remainder of this medical opinion indicating that Plaintiff
had some physical limits that would preclude her ability to perform very heavy, heavy,
medium, and light work activity was otherwise well-supported by the record and entitled
to partial weight. (/d.)
The ALJ further stated that the assessments of Ms. McLearn, Ms. Bozuhoski,
and Ms. Pranovilla could not be afforded controlling weight because they were not
acceptable medical sources under the Federal regulations. (T. 30.) The ALJ also
indicated that the medical opinions of Dr. Azad and Dr. Calkins could not be afforded
controlling weight because they were “inconsistent with the scant chronically positive
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objective clinical findings noted on repeat physical exams, including results of their own
exams” as well as “other substantial evidence, including [Plaintiff's] various statements
to her medical sources regarding her overall positive response to conservative
treatment that fail to support her allegations regarding the duration, frequency, and
intensity of pain and other physical symptoms.” (/d.) The ALJ indicated that Dr.
Fkiaras’ opinion was entitled to greater weight because it was more consistent with the
record in its entirety including Plaintiff's “limited alternative treatment modalities to
indicate uncontrolled symptoms and her engagement in physical activities on a regular
and continuing basis consistent with a range of sedentary work.” (/d.)
2. Mental Health Opinion Evidence
. In November 2015, then-treating psychiatrist Lyubov Gorelik, M.D. reached a
global assessment of functioning (“GAF”) score of 55 at Plaintiff's initial evaluation. (T.
449.) The ALJ afforded this score some weight in determining functional limitations
related to Plaintiff's mental disorders, but not great weight. (T. 32-33.)
In March 2016, Plaintiff underwent a consultative psychiatric examination
conducted by Johanina McCormick, Ph.D., and reported participating in outpatient
mental health treatment. (T. 439-43.) Plaintiff's overall presentation at the examination
was adequate, and she had coherent and goal-directed thought processes, a depresse
affect, a dysthymic mood, and clear sensorium. (T. 440.) She also had mildly impaired
attention and concentration and impaired recent and remote memory skills due to
distractibility. (/d.) Dr. McCormick diagnosed unspecified bipolar and related disorder
22
(provisional) and a specific learning disorder with impairment in math by history. (T.
441.)
Dr. McCormick opined that Plaintiff could follow and understand simple directions
and instructions, perform simple tasks independently, make appropriate decisions and
5 relate adequately with others, but that she had a mild impairment in maintaining
attention and concentration, a moderate-to-marked impairment in maintaining a regular
schedule and appropriately dealing with stress, and moderate impairment in learning
new tasks and performing complex tasks independently with supervision. (T. 441.) Dr.
McCormick concluded that the results of the examination appeared to be consistent wit
psychiatric problems, and that such problems may moderately-to-significantly interfere
with Plaintiff's ability to function on a daily basis. (/d.) The ALJ did not adopt all of Dr.
. McCormick’s findings, but indicated that she afforded this opinion great weight because
it was “generally supported by the objective medical evidence from various medical
sources, including records received at the hearing level.” (T. 31.)
At the initial determination level in April 2016, non-examining consultant G.
Kleinerman opined that Plaintiff had mild restriction of activities of daily living, moderate
difficulties in maintaining social functioning, mild difficulties in maintaining concentration,
persistence or pace, and no repeated episodes of decompensation of extended
duration. (T. 90, 101.) Consultant Kleinerman stated that the psychiatric evidence was
consistent with the judgments that Plaintiff retained the capacities for understanding,
remembering, and carrying out at least non-complex instructions and for relating
appropriately under conditions of reduced interpersonal contact. (T. 93-95, 104-06.)
23
The ALJ afforded partial weight to this opinion, noting Consultant Kleinerman made his
determination following a comprehensive review of the record, but that he did not have
the benefit of conducting a mental status examination, the opinion predated the recent
change in mental listings, and the opinion was based on limited medical evidence
5 through April 2016 with somewhat greater limits supported by later-dated evidence
received at the hearing level. (T. 33.) The ALJ indicated that, nonetheless, the finding
that Plaintiff retained considerable mental capacity despite her multiple mental disorders
was otherwise well-supported and entitled to partial weight. (/d.)
In May 2018, Dr. Calkins indicated that she did not believe Plaintiff's cannabis
use contributed to her level of disability. (T. 889.) The ALJ afforded partial weight to
this assessment, noting that Dr. Calkins did not otherwise provide a function-by-function
. assessment of Plaintiff's mental functioning and treated her primarily for her physical
impairments with few positive objective clinical findings related to her mental disorders
on examination. (T. 33-34.)
In assessing Plaintiffs mental health limitations, the ALJ afforded little weight to
Dr. Azad’s opinion noting Plaintiff's restrictions in dealing with people due in part to
bipolar disorder; being prone to excessive anger; pain constantly being severe enough
to interfere with attention, concentration, and sleep; and significant off-task behavior and
excessive absences. (T. 34, 503-04.) The ALJ similarly afforded little weight to Ms.
McLearn’s assessment indicating limitations including, but not limited to, marked
impairment in dealing with work stress, up to 40 percent off-task behavior, and three
absences from work per month. (T. 34, 585-91.) The ALJ indicated that significant
24
absences and off-task behavior were speculative, particularly because Plaintiff did “not
have a history of multiple cancelled medical appointments to indicate difficulty attending
to a routine or maintaining a schedule.” (T. 34, 36.) The ALJ concluded that the
limitations appeared to be based primarily on Plaintiff's subjective self-reports of
5 symptoms and functional limitations inconsistent with the evidence including Plaintiff's
“overall positive response to mental health treatment, her inconsistent statements about
the severity of her symptoms, and her engagement in a range of activities consistent
with unskilled work.” (/d.)
The ALJ also indicated that Ms. McLearn’s assessment could not be afforded
controlling weight because she was not an acceptable medical source under the
Federal regulations. (T. 36.) The ALJ stated that the medical opinions or GAF scores
from Dr. Azad, Dr. Calkins, and Dr. Gorelik were “not entitled to controlling weight
because few positive objective clinical findings related to [Plaintiff's] mental disorders
[were] noted by Drs. Azad, Calkins, and Gorelik based on mental status exams
performed since the date first insured.” (/d.) The ALJ also noted that Dr. McCormick
and Consultant Kleinerman’s opinions were entitled to greater weight since they were
more consistent with the record in its entirety including Plaintiff's overall positive
response to ongoing mental health treatment and her engagement in a range of
activities of daily living that require good mental functioning. (T. 36-37.) The ALJ
further noted that Dr. McCormick did not specifically define the terms “moderate to
marked” or “moderately” but concluded that there was nothing particularly vague about
this opinion requiring clarification. (T. 37.)
25
3. Analysis
First, Plaintiff argues that the ALJ erred in giving great weight to Dr. Fkiaras’
opinion because (1) it was issued prior to her fibromyalgia diagnosis, (2) Dr. Fkiaras
only conducted one brief examination of Plaintiff, (3) Dr. Fkiaras did not review any
medical records or treat Plaintiff, (4) Dr. Fkiaras’ findings are inconsistent with the
longitudinal medical evidence, and (5) there is no suggestion that Dr. Fkiaras has a
relevant specialty. (Dkt. No. 9, at 16-19.) However, as discussed above in Section
of this Decision and Order, the ALJ’s analysis of Plaintiff's allegations of
fibromyalgia is evidenced by her careful consideration of the evidence of record --
including the medical opinions -- and the Court finds this analysis is supported by
substantial evidence. (T. 16-37.) Although Dr. Fkiaras’ opinion pre-dates Plaintiff's
. fibromyalgia diagnosis, the opinion still useful to the ALJ in determining Plaintiff's
physical RFC, particularly in light of Plaintiff's indication that fibromyalgia was a
misdiagnosis. (T. 24-25, 55, 57-58, 433-38, 820, 890.) The ALJ was entitled to rely on
an opinion from an examining medical consultant because he is considered a qualified
expert in the field of social security disability. See Frye, 485 F. App’x at 487; Little, 201
WL 1399586, at *9. Further, there is no legal requirement that opinion sources have
access to the complete record. See Sfottlar v. Colvin, 15-CV-0340 (GTS), 2017 WL
972108, at *7 (N.D.N.Y. Mar. 10, 2017) (noting that “a medical consultant's failure to
consider the complete medical record does not necessarily compel rejection of the
medical consultant’s opinions ‘or the ALJ’s finding relying thereon’’); see a/so 20 C.F.R.
§ 404.1519n(c) (which does not indicate that reviewing a claimant's medical records is a
26
requirement for a complete consultative examination). The Court therefore finds that
the ALJ did not err in affording great weight to the consultative examiner's opinion.
The Court also finds the ALJ’s explanation of the great weight afforded to Dr.
Fkiaras’ opinion supports her analysis. (T. 24-25.) Specifically, the ALJ indicated she
5 did not adopt all of the limitations that Dr. Fkiaras identified, but that the opinion was
“generally supported by the objective medical evidence that indicates that [Plaintiff] is
precluded from performing very heavy, heavy, medium, and light work activity due to th
combination of physical impairments, but otherwise retains the maximum [RFC] to
perform a range of sedentary work activity.” The ALJ further explained that
the postural limitations identified by Dr. Fkiaras for the need
to avoid squatting and crouching with moderate limitation in
bending are reflected in the [RFC] for no crouching (squatting
or bending at the legs and spine) and for stooping (bending at
the waist) on no more than an occasional basis that is defined
as occurring from very little up to one-third of the time. The
additional postural and manipulative limitations identified by
Dr. Fkiaras are supported in part by the objective medical
evidence and [Plaintiff's] ongoing treatment for a combination
of physical impairments affecting her spine and extremities.
However, greater exertional and non-exertional limitations are
not supported by the objective clinical and laboratory findings
from various medical sources.
(T. 25.) Further, the ALJ was not required to adhere to the entirety of Dr. Fkiaras’
tr!
opinion (or any other medical source’s opinion) in formulating Plaintiffs RFC. See
Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (summary order) (“Although the
ALJ's conclusion may not perfectly correspond with any of the opinions of medical
sources cited in his decision, he was entitled to weigh all of the evidence available to
make an RFC finding that was consistent with the record as a whole.”); Zongos v.
27
Colvin, 12-CV-1007 (GLS/ESH), 2014 WL 788791, at *9 (N.D.N.Y. Feb. 25, 2014)
(finding that it was within the ALJ’s discretion to afford weight to a portion of a treating
physician’s opinion but not to another portion).
Second, the Court is not persuaded by Plaintiffs argument that the ALJ erred in
5 concluding she did not have a duty to recontact Dr. Fkiaras regarding his use of the
terms “moderate” or “mild to moderate.” (Dkt. No. 9, at 18-19.) In her decision, the ALJ
indicated that she did not have a duty to recontact Dr. Fkiaras to clarify the basis of the
opinion before weighing the medical opinions because, although Dr. Fkiaras did not
specifically define the terms “moderate” or “mild to moderate,” there was “nothing
particularly vague about this medical opinion that would require clarification given the
few chronically positive objective clinical findings noted on accompanying physical exam
. conducted by Dr. Fkiaras that are generally consistent with similar exams noted by
various other treating and examining sources.” (T. 30-31.) Indeed, the Court’s review
indicates the ALJ fully considered this opinion along with the other evidence of record to
determine that Plaintiff retains the RFC to perform a modified range of sedentary work.
(T. 20-37.) Further, the ALJ admittedly did not fully adopt Dr. Fkiaras’ opinion and gave
partial weight to Dr. Calkins’ assessment and little weight to the other opinions of record
to determine Plaintiff's physical RFC. (T. 26-31.)
Third, Plaintiff argues that the ALJ erred in weighing the opinions of her treating
providers who considered the combined limitations caused by Plaintiff's fibromyalgia
and other impairments. (Dkt. No. 9, at 19-22.) However, the Court finds that the ALJ’s
RFC analysis indicates careful consideration of these opinions as summarized above,
28
and it does not indicate a violation of the treating physician rule requiring remand. (T.
20-37.) Indeed, the ALJ explained the weight given to each of the treating opinions and
why the assessments of Ms. McLearn, Ms. Bozuhoski, Ms. Pranovilla, Dr. Azad, and Dr.
Calkins could not be afforded controlling weight. (T. 26-37.) The ALJ’s detailed
5 analysis here is reflective of her responsibility to review all the evidence before her,
resolve inconsistencies, and make a determination consistent with the evidence as a
whole. See Bliss v. Colvin, 13-CV-1086 (GLS/CFH), 2015 WL 457643, at *7 (N.D.N.Y.,
Feb. 3, 2015) (“It is the ALJ’s sole responsibility to weigh all medical evidence and
resolve material conflicts where sufficient evidence provides for such.”); Petell v.
Comm’r of Soc. Sec., 12-CV-1596 (LEK/CFH), 2014 WL 1123477, at *10 (N.D.N.Y.,
Mar. 21, 2014) (“It is the ALJ’s sole responsibility to weigh all medical evidence and
. resolve material conflicts where sufficient evidence provides for such.”).
Finally, the Court is similarly unpersuaded by Plaintiffs contentions that the ALJ
failed to properly assess Plaintiff's ability to stay on task and/or maintain attendance and
substituted her judgment for undisputed medical opinions. (Dkt. No. 9, at 22-24.) In
determining Plaintiff's physical and mental limitations, the ALJ indicated that the record
did “not support frequent unscheduled breaks, excessive absenteeism and tardiness, or
other significant off-task behavior in a work-setting secondary to [Plaintiff's] physical
impairments” and that she “has no more than moderate difficulties in understanding,
remembering, or applying information; and no more than moderate difficulties in
concentrating, persisting, or maintaining pace.” (T. 30, 36.) The ALJ explained that
Plaintiff has been able to perform a range of activities and her alleged off-task behavior
29
due to pain and side effects of medication was not supported by various exams showing
she was awake/alert and in no acute distress or her ability to attend appointments, the
two consultative examinations, the disability hearing, and routine follow-up
appointments despite periodic gaps in treatment or other cancelled medical
5 appointments. (T. 30, 36, 216-29, 197-204.) The ALJ also indicated that Plaintiff's
allegations of mental limitations appeared overstated with her complaints of physical
pain, fatigue, and other symptoms related to her physical impairments being under good
control with conservative treatment and avoidance of more than sedentary level of
exertion. (T. 36.)
The Court finds that, in addition to carefully reviewing the evidence of record, the
ALJ properly weighed the medical opinions of record relating to Plaintiff's mental
. limitations. (T. 31-37, 90, 101, 93-95, 104-06, 439-43, 449, 503-04, 585-91, 889.) For
example, the ALJ afforded great weight to Dr. McCormick’s opinion but did not adopt all
of the findings therein (including significant limits in maintaining a schedule), noting that
“repeat mental status examinations showed that [Plaintiff] generally presents with
changes in mood or affect consistent with the presence of a medically determinable
severe mental disorder, but few other chronically positive clinical findings are noted to
support greater limitations of functioning.” (T. 31-32, 384, 439-44, 447, 466, 606, 612,
615, 629, 742, 890-91, 894, 896.) The Court’s review of the record supports these
conclusions by the ALJ regarding Plaintiff's mental limitations and indicates that Plaintiff
has not established further limitations regarding off-task time, work pace, or attendance
than those included by the ALJ in the RFC.
30
For the reasons above, the Court finds the ALJ’s analysis of Plaintiffs RFC and
the medical opinions is supported by substantial evidence. Accordingly, remand is not
warranted.
C. Step Five Determination
The burden shifts to the Commissioner at Step Five “to show there is other work
that [the claimant] can perform.” Mcintyre, 758 F.3d at 150 (quoting Brault v. Soc. Sec.
Admin., 683 F.3d 443, 445 (2d Cir. 2012)). An ALJ may rely on a vocational expert’s
testimony regarding a hypothetical [question] as long as ‘there is substantial record
evidence to support the assumption[s] upon which the vocational expert based his
opinion’ [and]. . . [the hypothetical question] accurately reflect[s] the limitations and
. capabilities of the claimant involved.” Mcintyre, 758 F.3d at 151 (quoting Dumas v.
Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983); citing Aubeuf v. Schweiker, 649
F.2d 107, 114 (2d Cir. 1981)). “If a hypothetical question does not include all of a
claimant's impairments, limitations, and restrictions, or is otherwise inadequate, a
vocational expert's response cannot constitute substantial evidence to support a
conclusion of no disability.” Pardee v. Astrue, 631 F. Supp. 2d 200, 211 (N.D.N.Y. July
7, 2009) (citing Melligan v. Chater, 94-CV-0944, 1996 WL 1015417, at *8 (W.D.NLY.
Nov. 14, 1996)).
At Step Five, the ALJ found, based on the vocational expert’s testimony, that
Plaintiff could perform other jobs existing in significant numbers in the national
economy. (T. 38-40, 74-76.) Plaintiff argues the Step Five determination is not
31
supported by substantial evidence because the RFC and vocational expert testimony
was based on a hypothetical question which did not properly account for the true extent
of Plaintiff's exertional and non-exertional impairments. (Dkt. No. 9, at 24-25.)
However, as indicated above, the Court finds that the ALJ’s analysis of Plaintiff's
5 impairments, RFC, and the opinion evidence is supported by substantial evidence and
that the hypothetical question proposed to the vocational expert properly reflected the
RFC limitations. (T. 20, 74-76.) Plaintiff has not established further limitations than
those included in the RFC. Accordingly, the Court finds the ALJ’s Step Five
determination is supported by substantial evidence; therefore, remand is not warranted
on this ground.
I
IV. CONCLUSION
WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that Plaintiff's motion for judgment on the pleadings (Dkt. No. 9) is
DENIED; and it is further
ORDERED, that Defendant's motion for judgment on the pleadings (Dkt. No. 13)
is GRANTED; and it is further
ORDERED, that Defendant's decision denying Plaintiff disability benefits is
AFFIRMED, and it is further
ORDERED, that Plaintiffs Complaint is DISMISSED. IT IS SO ORDERED.
Dated: April 23, 2020
Albany, New York C “ , ft fe
US, Magiate huge
32