Brown v. Saul

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

MICHAEL B.,

Plaintiff,

V. 8:19-CV-507

U (DJS)

ANDREW M. SAUL, Commissioner of

Social Security,

Defendant.

APPEARANCES: OF COUNSEL:

SCHNEIDER & PALCSIK MARK A. SCHNEIDER, ESQ.

Attorney for Plaintiff

57 Court Street

Plattsburgh, New York 12901

U.S. SOCIAL SECURITY ADMIN. TIMOTHY S. BOLEN, ESQ.

OFFICE OF REG’L GEN. COUNSEL

Attorney for Defendant

J.F.K. Federal Building - Room 625

15 New Sudbury Street

Boston, Massachusetts 02203

DANIEL J. STEWART

United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER!

Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) seeking review of a

decision by the Commissioner of Social Security that Plaintiff was not disabled for

* Upon Plaintiff's consent, the United States’ general consent, and in accordance with this District’s General Order

18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. § 636(c) and

Federal Rule of Civil Procedure 73. See Dkt. No. 5 & General Order 18.

purposes of disability insurance benefits. Dkt. No. 1. Currently before the Court are

Plaintiff's Motion for Judgment on the Pleadings and Defendant’s Motion for Judgment

on the Pleadings. Dkt. Nos. 11 & 15. For the reasons set forth below, Plaintiff's Motion

is granted, Defendant’s Motion is denied, and the case is remanded for further

proceedings.

I. RELEVANT BACKGROUND

A. Factual Background

Plaintiff was born in 1971, making him 47 years old on the date of the ALJ’s

decision. Dkt. No. 8, Admin. Tr. (“Tr.”) at pp. 31, 139. Plaintiff is a high school

graduate, who owned and operated his own plumbing business for approximately twenty

years. Tr. at pp. 31, 41-42, 148-149. In his application for benefits, Plaintiff alleged

disability based upon “anterior cervical discectomy and fusion C5-C6 C6-C7,” arthritis,

diabetes, and depression.” Tr. at p. 157.

B. Procedural History

Plaintiff applied for disability insurance benefits on September 15, 2016. Tr. at

139. He alleged a disability onset date of July 1, 2014. /d. Plaintiff's application

was initially denied on December 27, 2016, after which he timely requested a hearing

before an Administrative Law Judge (“ALJ”). Tr. at pp. 66-79, 83-86. Plaintiff

appeared at a hearing before ALJ David F. Neumann on June 13, 2018, at which he and

2 As discussed herein, Plaintiff contends in his brief that he is also disabled due to the related spinal and nerve

impairments of meralgia paresthetica and cervical radiculopathy. Dkt. No. 11 at pp. 24-25.

a vocational expert (“VE”) testified. Tr. at pp. 27-65. On August 17, 2018, the ALJ

issued a written decision finding Plaintiff was not disabled under the Social Security

Act. Tr. at pp. 10-26. On April 24, 2019, the Appeals Council denied Plaintiff's request

for review, making the ALJ’s decision the final decision of the Commissioner. Tr. at

Sl pp. 1-7.

C. The ALJ’s Decision

In his decision, the ALJ made the following findings of fact and conclusions of

law. First, the ALJ found that Plaintiff last met the insured status requirements on June

30, 2016 and had not engaged in substantial gainful activity from his alleged onset date

of July 1, 2014 through his date last insured. Tr. at p. 15. Second, the ALJ found that

“| Plaintiff had the following severe impairments: chronic obstructive pulmonary disease

(“COPD”), status post cervical discectomy, lumbar spondylosis, and obesity. Tr. at pp.

15-16. Third, the ALJ found 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. | (the “Listings”). Tr. at p. 16. Fourth, the ALJ found that

Plaintiff had the residual functional capacity (“RFC”) through the date last insured to

perform light work except:

[he] could lift and carry 10 pounds frequently and 20 pounds occasionally.

He could sit for seven hours, with normal breaks, in an eight-hour workday

and stand and/or walk one hour, with normal breaks, in an eight-hour

workday. He could perform pushing and pulling motions with his upper and

lower extremities within the aforementioned weight restrictions. He should

avoid concentrated pollutants and temperature extremes. He could

occasionally climb stairs and ramps, balance, stoop, kneel, crouch, and crawl.

Tr. at p. 17. Fifth, the ALJ found that Plaintiff was unable to perform any past relevant

work through the date last insured. Tr. at p. 21. Sixth, the ALJ found that Plaintiff is in

the “younger individual age” category, has at least a high school education, and is able

to communicate in English. /d. Seventh, the ALJ relied upon the VE testimony and

found that there was work existing in significant numbers in the national economy that

Plaintiff could have performed through the date last insured. Tr. at pp. 21-22. The ALJ,

therefore, concluded that Plaintiff is not disabled. Tr. at pp. 22-23.

D. The Parties’ Positions

Plaintiff makes four arguments in support of reversal. First, he argues that the

ALJ failed to properly evaluate the record evidence, and in particular, failed to assign

proper weight to the medical opinion evidence. Dkt. No. 11, Pl.’s Mem. of Law at pp.

18-24. Second, Plaintiff argues that the ALJ erred at Step Two by not considering

Plaintiff's meralgia paresthetica* and cervical radiculopathy to be severe impairments.

Id. at pp. 24-25. Third, Plaintiff argues that the ALJ failed to properly evaluate

Plaintiff's credibility and assess his subjective allegations regarding his functional

“| limitations arising from pain and other symptoms. /d. at pp. 25-28. Finally, Plaintiff

argues that the ALJ failed to properly evaluate the effect of Plaintiff's obesity on his

ability to work. Jd. at pp. 28-32. Plaintiff contends that each of these errors resulted in

3 Meralgia paresthetica is a condition characterized by tingling, numbness and burning pain in the outer thigh,

caused by compression of the nerve that supplies sensation to the skin. Meralgia Paresthetica, MAYOCLINIC,

available at __hittps://www.mayoclinic.org/diseases-conditions/meralgia-paresthetica/symptoms-causes/syc-

20355635 (last accessed Sept. 18, 2020). ,

an erroneous disability determination. /d. at p. 32. Defendant counters that the ALJ

properly evaluated the record evidence and that his determination is supported by

substantial evidence. See generally Dkt. No. 15, Def.’s Mem. of Law.

Il. RELEVANT 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 (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).

SIIf 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

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. Standard to Determine Disability

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

evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (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 | 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 clatmant’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

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

be made, the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S.

20, 24 (2003).

It. ANALYSIS

A. The ALJ’s Step Two Determination

At Step Two of the sequential analysis, “the ALJ must determine whether the

claimant has a ‘severe medically determinable physical or mental impairment.’” Pepper

“lv. Comm’r of Soc. Sec., 2015 WL 3795879, at *2 (N.D.N.Y. June 17, 2015) (quoting 20

C.F.R. § 404.1520(a)(4)(ii)).. A condition will be found not severe when it does not

significantly impact or limit the individual’s ability to do basic work. /d.; see also Royal

v. Astrue, 2012 WL 5449610, at *5 (N.D.N.Y. Oct. 2, 2012), report and

recommendation adopted, 2012 WL 5438945 (N.D.N.Y. Nov. 7, 2012).

Basic work activities include walking, standing, sitting, lifting, carrying, pushing,

pulling, reaching, handling, seeing, hearing, speaking, understanding, remembering and

carrying out simple instructions, using judgment, and responding appropriately to

supervision, co-workers, and usual work situations. Taylor v. Astrue, 32 F. Supp. 3d

9) 253, 265 (N.D.N.Y. 2012) (citing Gibbs v. Astrue, 2008 WL 2627714, at *16 (S.D.N.Y.

July 2, 2008)); see also 20 C.F.R. § 404.1522(b). “Although the Second Circuit has held

that this step is limited to ‘screening out de minimis claims,’ [ ] the ‘mere presence of a

disease or impairment, or establishing that a person has been diagnosed or treated for a

disease or impairment’ is not, by itself, sufficient to render a condition ‘severe.’” Tavlor

v. Astrue, 32 F. Supp. 3d at 265 (quoting Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.

1995); Coleman v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995)). Overall, the claimant

retains the burden of presenting evidence to establish severity. Taylor v. Astrue, 32 F.

Supp. 3d at 265 (citing Miller v. Comm’r of Soc. Sec., 2008 WL 2783418, at *6-7

(N.D.N.Y. July 16, 2008)).

The failure to find a specific impairment severe at Step Two is harmless where

(a) the ALJ concludes there is at least one other severe impairment, (b) the ALJ

continues with the sequential evaluation, and (c) the ALJ provides an explanation

showing he adequately considered the evidence related to the impairment that is

ultimately found non-severe. Fuimo v. Colvin, 948 F. Supp. 2d 260, 269-70 (N.D.N.Y.

2013) (citing Dillingham v. Astrue, 2010 WL 3909630 (N.D.N.Y. Aug. 24, 2010), report

and recommendation adopted, 2010 WL 3893906 (N.D.N.Y. Sept. 30, 2010)); see also

Reices-Colon v. Astrue, 523 Fed. Appx. 796, 798 (2d Cir. 2013) (finding that any error

in failing to find plaintiff's anxiety and panic disorder severe at Step Two would be

harmless because the ALJ found other severe impairments present, continued through

the sequential evaluation process, and specifically considered plaintiff's anxiety and

4) panic attacks at those subsequent steps).

Plaintiff notes that he was diagnosed with meralgia paresthetica in September

2015, after complaining of pain and numbness in his left leg. Tr. at p. 320. However,

“{t]he ‘mere presence of a disease or impairment, or establishing that a person has been

diagnosed or treated for a disease or impairment’ is not, itself, sufficient to deem a

condition severe.” Bergeron v. Astrue, 2011 WL 6255372, at *3 (N.D.N.Y. Dec. 14,

2011) (quoting McConnell v. Astrue, 2008 WL 833968, at *2 (N.D.N.Y. Mar. 27,

2008)). “The severity of an impairment is not determined merely by diagnosis, but by

the limitations imposed by the impairment.” Tillis v. Colvin, 2016 WL 8674672, at *2

(N.D.N.Y. Mar. 11, 2016). In this case, Plaintiff has not identified any functional

limitations attributable to meralgia paresthetica, either during the administrative process

or his brief before this court. Moreover, there is no evidence in the record that this

impairment imposes limitations greater than those accounted for in the RFC established

by the ALJ. See Sherman v. Comm’r of Soc. Sec., 2015 WL 5838454, at *5 (N.D.N.Y.

Oct. 7, 2015). Therefore, the Court will not find any error in the ALJ’s failure to label

meralgia paresthetica to be a severe impairment.

In any case, the ALJ specifically discussed the September 2015 diagnosis of

meralgia paresthetica on the left leg as part of the RFC determination, citing the same

treatment notes that Plaintiff relies on in his memorandum of law. Tr. at pp. 18, 318-

324. He also discussed the recommended treatment of weight loss and smoking

“| cessation. Tr. at pp. 18, 320. Therefore, even if the ALJ had erred by excluding meralgia

paresthetica from the list of severe impairments, such error would be harmless because

the ALJ specifically considered the impairment as part of the RFC determination.

Fuimo v. Colvin, 948 F. Supp. 2d at 269-70.

Plaintiff also contends that the ALJ incorrectly characterized Plaintiff's spinal

impairments as “status post cervical discectomy,” although Plaintiffs surgery did not

occur until November 30, 2016, five months after his date last insured. Tr. at pp. 15,

352-354. Plaintiff contends that the ALJ should have instead identified Plaintiff's back

impairment as cervical nerve impingement and radiculopathy. Although the ALJ erred

regarding the timing of Plaintiff’s back surgery,’ Plaintiff has not identified any harm

that resulted from this error. Indeed, the ALJ discussed Plaintiff's cervical nerve

impingement and radiculopathy at length in his decision, including diagnostic tests that

followed the initial diagnosis, Plaintiff's response to pain medication, and the eventual

necessity of surgery. Tr. at pp. 17-20. Given that the ALJ expressly considered the

potential limitations associated with Plaintiffs cervical spine impairments as part of the

4 As part of the RFC analysis, the ALJ recognized that Plaintiff's surgery did not occur until November 2016. Tr.

at p. 21.

10

RFC determination, the ALJ’s failure to accurately name them as severe impairments at

Step Two was harmless. Fuimo v. Colvin, 948 F. Supp. 2d at 269-70.

The ALJ’s Step Two analysis is therefore not a basis for remand.

B. The ALJ’s Consideration of Plaintiff's Obesity

Plaintiff is five feet nine inches tall and weighed about 285 pounds on the date of

his application for benefits. Tr. at p. 31. His Body Mass Index (“BMI”) during this

period was over 40, qualifying him as obese.° Tr. at pp. 18, 240, 261, 267. Plaintiff

argues that the ALJ did not explain how he evaluated the effect of obesity upon

Plaintiff's ability to work.

Under SSR 02-1p, obesity may be considered “severe” - and thus medically equal

“| to a listed disability - if “alone or in combination with another medically determinable

physical or mental impairment(s), it significantly limits an individual’s physical or

mental ability to do basic work activities.” See SSR 02-1p, Titles II and XVI: Evaluation

of Obesity, 2002 WL 34686281, at *4 (Sept. 12, 2002). The ruling “instruct[s]

adjudicators to consider the effects of obesity not only under the listings but also when

assessing a claim at other steps of the sequential evaluation process, including when

assessing an individual’s residual functional capacity.” Jd. at *1; accord Dieguez v.

> BMI is a measure of body fat based on height and weight that applies to adult men and women. A BMI over 30

is considered obese. Calculate Your Body Mass Index, NATIONAL HEART, LUNG, AND BLOOD INSTITUTE,

available at hittps://www.nhlbi.nih.gov/health/educational /lose_wt/BMI/bmicalc.htm (last accessed Sept. 18,

2020). A BMI of 40 or higher can be medically categorized as “extreme” or “severe” obesity. Adult Body Mass

Index (BMI), CENTERS FOR DISEASE CONTROL AND PREVENTION, available at https://www.cdc.gov/obesity/adult

/defining.html (last accessed Sept. 18, 2020).

11

Berryhill, 2017 WL 3493255, at *3 (S.D.N.Y. Aug. 15, 2017); Battle v. Colvin, 2014

WL 5089502, at *5 (W.D.N.Y. Oct. 9, 2014). “Obesity is not in and of itself a

disability,” however, and courts have held that “an ALJ’s failure to explicitly address a

claimant’s obesity does not warrant remand.” Guadalupe v. Barnhart, 2005 WL

4) 2033380, at *6 (S.D.N.Y. Aug. 24, 2005) (citations omitted). “‘Conversely, the ALJ’s

obligation to discuss a claimant’s obesity alone, or in combination with other

impairments, diminishes where evidence in the record indicates the claimant’s treating

or examining sources did not consider obesity as a significant factor in relation to the

claimant’s ability to perform work related activities.’” Battle v. Colvin, 2014 WL

5089502, at *5 (quoting Farnham vy. Astrue, 832 F.Supp.2d 243, 261 (W.D.N.Y. 2011))

(citing cases); accord Cahill v. Colvin, 2014 WL 7392895, at *27 (S.D.N.Y. Dec. 29,

2014).

Plaintiff's memorandum of law focuses on a series of cases that remanded

because the ALJ never addressed the impact of obesity on a claimant’s other

impairments. See Shutts v. Colvin, 2013 WL 4080601, at *5 (N.D.N.Y. Aug. 13, 2013),

Garcia v. Astrue, 10 F. Supp.3d 282, 297 (N.D.N.Y. 2012); Kasmire v. Astrue, 2008

WL 5482786, at *14 (W.D.N.Y. Dec. 18, 2008). In this case, however, the ALJ’s

decision demonstrates an adequate consideration of Plaintiff's obesity. The decision not

only references the requirements of SSR 02-01, but also discusses record evidence

regarding Plaintiff's obesity. Tr. at p. 16. For example, the ALJ cited March 2015

treatment notes assessing Plaintiff's weight and BMI in connection with an examination

12

of Plaintiff's musculoskeletal development, mobility, and strength. Tr. at pp. 18, 240.

The ALJ also discussed September 2015 treatment notes finding that weight loss would

be beneficial to the treatment of Plaintiff's lower back pain and left leg paresthetica. Tr.

at p. 320. In addition, the ALJ cited other treatment notes that discussed the impact of

4) Plaintiff's weight on his impairments and functional limitations in calculating his RFC.

Tr. at pp. 261-262, 272. See Martin v. Astrue, 2008 WL 4186339, at *3 (N.D.N.Y. Sept.

9, 2008) (finding that Plaintiff's obesity was understood to have been factored into RFC

determination when the ALJ relied upon physical limitations found in reviewing

doctors’ notes that discussed obesity).

Thus, it is evident that the ALJ considered Plaintiff's obesity at Steps Four and

“| Five of the disability determination, and Plaintiff has not identified, or even suggested,

any further functional limitations arising from obesity. Therefore, the ALJ’s assessment

of the impact of obesity on Plaintiff's functional limitations was supported by substantial

evidence. See Mancuso vy. Astrue, 361 Fed. Appx. 176, 178 (2d Cir. 2010) (ALJ did not

err in consideration of obesity where “there [was] no factual basis for thinking that ‘any

additional and cumulative effects of obesity’ limited [the claimant’s] ability to perform

light work”) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00Q).

C. ALJ’s Evaluation of Medical Opinion Evidence

With respect to Plaintiff's RFC, the ALJ’s decision discussed opinions from Dr.

Laurel Rosenthal, Plaintiff's primary care physician; Nurse Practitioner (“NP”) Brian

Lecuyer, a pain management specialist; and Dr. S. Putcha, a state agency consultant who

13

reviewed Plaintiff's medical records. Tr. at pp. 19-20. Plaintiff contends that the ALJ

should have assigned greater weight to the Rosenthal and Lecuyer opinions.°.

Pursuant to the “treating physician rule” set out in 20 C.F.R. § 404.1527(c),’ “the

opinion of a claimant’s treating physician as to the nature and severity of the impairment

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

Plaintiff specifically argues that “the ALJ erred in dismissing the opinions of Dr. Rosenthal and NP Lecuyer.”

PL.’s Mem. of Lawat 23. Since the ALJ actually assigned some weight, albeit minimal, to these opinions, the Court

will interpret this argument as one in favor of assigning greater weight to these two opinions, and lower weight to

the opinion of state agency consultant Dr. Putcha.

? For claims filed on or after March 27, 2017, a new set of regulations apply. These new regulations do “not defer

or give any specific evidentiary weight, including controlling weight, to any medical opinion(s).” 20 C.F.R. §

416.920c(a). But since Plaintiff filed his claim on September 15, 2016, the treating physician rule applies. See

Claudio v. Berryhill, 2018 WL 3455409 at *3 n.2 (D. Conn. July 18, 2018) (“Since [the plaintiff] filed her claim

before March 27, 2017, I apply the treating physician rule under the earlier regulations.”).

14

physician is a specialist.’” Greek v. Colvin, 802 F.3d at 375 (quoting Selian v. Astrue,

708 F.3d 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 is required. Atwater v. Astrue, 512 Fed. Appx. 67, 70 (2d Cir. 2013) (citing

Halloran v. Barnhart, 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).

1. Dr. Rosenthal

On July 20, 2017, Dr. Rosenthal completed a form entitled ‘Medical

Examination for Employability Assessment, Disability Screening, and

Alcoholism/Drug Addiction Determination.” Tr. at pp. 342-343. She completed a

physical examination of Plaintiff on the same day. /d. Dr. Rosenthal described Plaintiff

wo suffering from cervical spinal stenosis, lumbar pain with radiculopathy, and COPD

since at least 2014. Tr. at p. 342. She also opined that each of these impairments were

permanent. /d. In assessing functional limitations on a check-box form, Dr. Rosenthal

opined that Plaintiff was “very limited” in his ability to walk, stand, sit, lift, carrying,

push, pull, bend, and climb stairs. Tr. at p. 343. She found him to be “moderately

limited” in the use of his hands, with no limitations in his ability to see, hear, and speak.

15

Id. Dr. Rosenthal also opined that Plaintiff would be very limited in his ability to

function in a work setting at a consistent pace, due to his physical limitations. Jd.

In a brief narrative section, Dr. Rosenthal opined that Plaintiff “can’t stay seated,

can’t walk or stand... . Breathing limits physical work. . . . Sleeping problems due to

U)pain....” Tr. at p. 343. She recommended referral to a weight loss program to address

some of these problems. /d.

The ALJ assigned “very little weight” to Dr. Rosenthal’s opinion. Tr. at p. 20.

He noted that the opinion was issued almost a year after the date last insured. /d. This

was a valid consideration, despite Dr. Rosenthal’s lengthy treating relationship with

Plaintiff. Although Dr. Rosenthal found that Plaintiff had originally been diagnosed

“| with back pain and spinal stenosis in 2014, she provided no indication when the

functional limitations set out in her opinion first arose. See Murphy v. Comm’r of Soc.

Sec., 2017 WL 8895352, at *9 (N.D.N.Y. Oct. 24, 2017) (finding that ALJ “properly

noted the timing” of physician’s opinions where the opinions “did not contain any

notation indicating that the limitations contained therein were retrospective” to the

period at issue); Martin v. Colvin, 2016 WL 1383507, at *5 (N.D.N.Y. Apr. 7, 2016)

(“the ALJ concluded that the later evidence submitted in this case did not, in fact,

demonstrate that [plaintiff's] condition during the time period at issue here was of

greater severity than the then-extant medical record had previously indicated”’).

The ALJ also discounted Dr. Rosenthal’s opinion because it was “nonspecific in

nature.” Tr. at p. 20. This, however, is often an insufficient justification to assign lesser

16

weight to a treating source opinion, without first attempting to develop the record. See

Alonda W. v. Saul, 2020 WL 880874, at *10 (N.D.N.Y. Feb. 24, 2020) (failure to provide

function-by-function analysis was not good reason to discount treating neurologist’s

opinion); Parker v. Comm’r of Soc. Sec. Admin., 2019 WL 4386050, at *8 (S.D.N.Y.

Sept. 13, 2019) (collecting cases and holding that a treating physician’s failure to

provide a function-by-function analysis does not provide a “good reason” for

discounting his opinion, given an ALJ’s duty to develop the record). “An ALJ has an

affirmative duty to develop the administrative record . . . even when the claimant is

represented by counsel because social security disability hearings are non-adversarial.”

Parker v. Comm’r of Soc. Sec., 2019 WL 4386050, at *5 (citing Moran v. Astrue, 569

108, 112-13 (2d Cir. 2009)). This duty to develop the record may include re-

contacting the treating physician “[i]f the opinion of [the] treating physician is not

adequate.” /d. (citing Mitchell v. Astrue, 2009 WL 3096717, at *17 (S.D.N.Y. Sept. 28,

2009)).

Here, this fact, together with the ALJ’s failure to fully address the specific

elements of the treating physician rule, warrant remand for further consideration of Dr.

Rosenthal’s opinion. In this case there was no explicit consideration of the treating

physician rule in the ALJ’s opinion. For example, while stating that the opinion “did

not provide findings to support the limitations” suggested, Tr. at p. 20, the ALJ did not

specifically discuss the extent to which Dr. Rosenthal’s treatment records did or did not

support her opinion, and generally limited the analysis to Dr. Rosenthal’s Medical

Ls

Source Statement. /d. The ALJ’s failure to evaluate Dr. Rosenthal’s opinion in the

specific context of her role as a treating physician is error warranting remand.

The Second Circuit has made clear that ALJs “must explicitly consider” each of

the relevant factors. Greek vy. Colvin, 802 F.3d at 375. In this case, the ALJ did not do

The failure to even discuss Dr. Rosenthal’s role as a treating physician alone is a

basis for remand. Ferraro v. Saul, 806 Fed. Appx. 13 (2d Cir. 2020) (summary order)

(directing remand when the ALJ did not “explicitly consider . . . the frequency, length,

nature, and extent of treatment”). The ALJ also did not specifically address the evidence

in Plaintiff's medical records that was consistent with and supported Dr. Rosenthal’s

opinion.

In addition, the ALJ’s cursory discussion of Dr. Rosenthal’s opinion failed to

otherwise provide “good reasons” for discounting it. Ferraro v. Saul, 806 Fed. Appx.

at *14-15 (“[T]he ‘failure to explicitly apply the Burgess factors when assigning weight

at step two is a procedural error,’ and unless the ALJ has ‘otherwise provided good

reasons for its weight assignment, we [will be] unable to conclude that the error was

harmless and [will] consequently remand for the ALJ to comprehensively set forth its

reasons.’”’) (quoting Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019)). An error

in weighing a physician’s opinion may be considered harmless where proper

consideration of that opinion would not change the outcome of the claim. Cottrell v.

Colvin, 206 F. Supp. 3d 804, 810 (W.D.N.Y. 2016) (citing Zabala v. Astrue, 595 F.3d

402, 409 (2d Cir. 2010)); Camarata v. Colvin, 2015 WL 4598811, at *16 (N.D.N.Y.

18

July 29, 2015) (denying the request for remand because application of the correct legal

standard would not change the outcome). Here, however, relevant factors, including the

frequency, length, nature and extent of treatment and the consistency of the opinion with

the medical records were not meaningfully analyzed. Such an error cannot be deemed

harmless when proper application of the treating physician rule may have led to a

different conclusion. Schall v. Apfel, 134 F.3d 496, 504-05 (2d Cir. 1998) (ALJ’s failure

to adhere to the Regulations regarding the weight to be given to the opinion of a treating

physician was not harmless, in part because “application of the correct legal standard

does not lead inexorably to a single conclusion”); Burgess v. Colvin, 2016 WL 7339925,

at *13 (S.D.N.Y. Dec. 19, 2016) (error not harmless and remand warranted when ALJ

provided only “minimal discussion” of treating physician factors).

2. Nurse Practitioner Brian Lecuyer

On May 15, 2018, NP Lecuyer completed a form entitled, “Medical Opinion Re:

Ability to Do Work-Related Activities (Physical).” Tr. at pp. 433-435. This opinion is

“not a treating source subject to the treating physician rule because a nurse practitioner

is not an acceptable medical source.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 270

(N.D.N.Y. 2009). Lecuyer opined that Plaintiff could frequently (1/3 to 2/3 of an eight

hour workday) lift and carry less than ten pounds, and could occasionally (no more than

1/3 of the workday) lift and carry ten pounds. Tr. at p. 433. NP Lecuyer also opined

that the most Plaintiff would be able to stand or walk during the workday was less than

two hours, and the most he could sit was about two hours. /d. He further opined that

19

Plaintiff would need to lie down about six hours during the workday in order to relieve

pain or for other reasons, would need the opportunity to shift at will from sitting or

standing/walking, and would sometimes need to lie down at unpredictable intervals

during the workday. /d.

In NP Lecuyer’s opinion, Plaintiff could never climb stairs or ladders, but could

occasionally twist, stoop, and crouch. Tr. at p. 434. He also opined that Plaintiff's

impairments affected his gross manipulation and his ability to push and pull. /d. Due

to those impairments, NP Lecuyer anticipated that Plaintiff would be absent from work

more than three times per month. /d. When presented with several options to describe

Plaintiff's pain, NP Lecuyer chose “[p]resent to such an extent as to be distracting to

adequate performance of daily activities or work.” Tr. at p. 435. In similar fashion, he

opined that physical activity, such as walking, standing, and bending “greatly increases

pain causing abandonment of task related to daily activities or work,” and that

medication impacted Plaintiff's work ability to the extent that “some limitations are

present, but will not create serious work problems.” /d.

The ALJ assigned “little weight” to NP Lecuyer’s opinion. Tr. at p. 20. He

provided several reasons for discounting the opinion. /d. He noted that the opinion was

provided almost two years after the date last insured, and that the limitations described

therein were not consistent with the record evidence either before or after that date. Tr.

at pp. 20, 433-435.

20

After careful review, this court concludes that the ALJ had substantial evidence

for the weight that he assigned to NP Lecuyer’s opinion. NP Lecuyer is not an

acceptable medical source; as such, it was thus within the ALJ’s discretion to determine

what weight to give to Mr. Lecuyer’s opinion, and he sufficiently explained his

4) reasoning for assigning the opinion limited weight. See Barnaby v. Comm’r of Soc. Sec.,

2018 WL 4522057, at *7 (N.D.N.Y. June 6, 2018) (quoting Genier v. Astrue, 298 Fed.

Appx. 105, 108 (2d Cir. 2008)) (“[A]n ALJ is ‘free to consider’ statements of other

sources, such as nurse practitioners, in making her overall assessment; however, ‘those

opinions do not demand the same deference as those of a treating physician’”).

Although NP Lecuyer is not an acceptable medical source, the ALJ could still consider

“| his opinion “when determining severity of impairments and how they affect individual

function.” Tammy Lynn B. v. Comm’r of Soc. Sec., 382 F. Supp. 3d 184, 194 (N.D.N.Y.

2019). However, the record shows that NP Lecuyer’s opinion is of limited utility in this

regard.

To begin with, NP Lecuyer first began treating Plaintiff on July 10, 2016, and his

notes describe significant changes in Plaintiff's condition that do not reflect Plaintiff's

condition between September 2014 and June 2016. For example, when Plaintiff

commenced treatment with NP Lecuyer, his primary complaint was cervical spine pain,

which was treated by epidural injection. Tr. at p. 312. When the epidural injection did

not provide lasting pain relief, Plaintiff decided to have back surgery. Tr. at p. 349.

Following his surgery in November 2016, Plaintiff had “nearly immediate relief of much

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of his arm symptoms” but some lingering neck pain. Tr. at p. 355. In April 2017,

Plaintiff reported that “he continues to enjoy great benefit from the surgery, no

symptoms to his arms/hands that were previously terrible. Most of the time has no neck

pain but once in a while will get a small sharp pain to his neck.” Tr. at p. 357. His

“) surgeon, Dr. Jian Shen, described Plaintiff as “doing exceptionally well” four months

after the surgery. Id.

Later visits to NP Lecuyer focused on Plaintiff's lumbar spine pain, rather than

the cervical spine pain that he suffered during the period relevant to this claim. In

August 2017, Plaintiff reported that his lumbar spine pain reached “10/10” without

medication, but that he walked for exercise and stretched as much as possible. Tr. at p.

In November 2017, Plaintiff reported that he was able to complete his activities of

daily living and self-hygiene but could only stand for five minutes at a time. Tr. at p.

362. Again, Plaintiff's primary complaint was lower back or lumbar spine pain. /d. In

December 2017, Dr. Rosenthal characterized this lower back pain as one that “flares on

reclining to 45 degrees.” Tr. at p. 426. During a visit with NP Lecuyer in February

2018, Plaintiff still reported lower back pain that made it difficult to stand for more than

fifteen minutes, or walk more than two hundred feet at one time, but also reported that

he was able to do household chores and perform personal care independently, taking

frequent breaks as needed. Tr. at p. 360.

In addition to the timing issue, NP Lecuyer provided no narrative that would

explain the medical findings that supported his opinion and relied entirely on the pre-

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printed options on the reporting form. “[C]ourts have routinely recognized the failure

to provide a requested narrative explanation on a check box form as a legitimate reason

for affording a treating source opinion limited weight.” See, e.g., Z.J.F. by Conkling v.

Comm ’r of Soc. Sec., 2018 WL 1115516, at *6 (N.D.N.Y. Feb. 27, 2018) (citing Camille

Colvin, 652 Fed. Appx. 25, 27 (2d Cir. 2016)); Jones v. Comm’r of Soc. Sec., 2016

WL 11477508, at *10 (N.D.N.Y. Aug. 8, 2016), report and recommendation adopted,

2016 WL 4991605 (N.D.N.Y. Sept. 19, 2016).

Based on the analysis above, this Court concludes that the ALJ erred in failing to

properly evaluate the opinion of Dr. Rosenthal, but not that of NP Lecuyer. The matter,

therefore, is remanded for further consideration of Dr. Rosenthal’s opinion consistent

“| with the treating physician rule.

D. The ALJ’s Consideration of Plaintiff’s Subjective Complaints

The ALJ concluded that Plaintiff's subjective statements “concerning the

intensity, persistence and limiting effects of these symptoms are not entirely consistent

with the medical evidence and other evidence in the record.” Tr. at p. 16. Plaintiff

argues that the ALJ erred by considering evidence that Plaintiff had still worked as a

plumber after the alleged onset date, and by failing to cite Plaintiff's lengthy work

history prior to his application for benefits as a bolster to his credibility. Pl.’s Mem. of

Law at p. 26. Plaintiff also argues that the ALJ had an obligation to further develop the

record before concluding that Plaintiff received minimal treatment for his back injury

prior to July 2015.

23

Although the Commissioner recently eliminated the use of the word “credibility”

from departmental policy statements, the ALJ remains obligated to “carefully consider

all the evidence presented by claimants regarding their symptoms, which fall into seven

relevant factors including daily activities and the location, duration, frequency, and

4) intensity of their pain or other symptoms.” Debra T. v. Comm’r of Soc. Sec., 2019 WL

1208788, at *9 (N.D.N.Y. Mar. 14, 2019) (quoting Del Carmen Fernandez v. Berryhill,

2019 WL 667743, at *9 (S.D.N.Y. Feb. 19, 2019) (internal quotations and alterations

omitted)). The evaluation of symptoms involves a two-step process. First, the ALJ must

determine, based upon the objective medical evidence, whether the medical impairments

“could reasonably be expected to produce the pain or other symptoms alleged.” 20

“| C.F.R. §§ 404.1529(a), (b); 416.929(a), (b).

If so, at the second step, the ALJ must consider “‘the extent to which [the

claimant’s] alleged functional limitations and restrictions due to pain or other symptoms

can reasonably be accepted as consistent with the [objective medical evidence] and other

evidence to decide how [the claimant’s] symptoms affect [his] ability to work.’” Barry

Colvin, 606 Fed. Appx. 621, 623 (2d Cir. 2015) (citing inter alia 20 C.F.R. §

404.1529(a); Genier v. Astrue, 606 F.3d at 49) (alterations in original). If the objective

medical evidence does not substantiate the claimant’s symptoms, the ALJ must consider

the other evidence. Cichocki v. Astrue, 534 Fed. Appx. 71, 76 (2d Cir. 2013) (citing

superseded SSR 96-7p). The ALJ must assess the claimant’s subjective complaints by

considering the record in light of the following symptom-related factors: (1) claimant’s

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daily activities; (2) location, duration, frequency, and intensity of claimant’s symptoms;

(3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects

of any medication taken to relieve symptoms; (5) other treatment received to relieve

symptoms; (6) any measures taken by the claimant to relieve symptoms; and (7) any

“) other factors concerning claimant’s functional limitations and restrictions due to

symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

In this case, the ALJ was clearly aware of his obligations to evaluate Plaintiff's

subjective complaints, and the Court finds that none of the issues raised by Plaintiff

merit remand. The ALJ was presented with conflicting evidence regarding Plaintiff's

ability to work as a plumber after his alleged onset date. The “Social History” section

“lof Dr. Rosenthal’s treatment notes repeatedly state that Plaintiff “now works as a

plumber” who “[d]oes heavy lifting in his work.” Tr. at pp. 239, 261, 266, 271. Plaintiff

reasonably argues that this is a clerical error that was never updated to reflect that

Plaintiff was physically unable to perform his long-time profession. However, the ALJ

also considered Dr. Rosenthal’s May 12, 2016 notation that Plaintiff “is back at work

on the days he can manage the pain getting there.” Tr. at p. 285.

When the ALJ questioned Plaintiff at the June 13, 2018 administrative hearing

about work performed after his alleged onset date, Plaintiff testified that it had been over

a year since he had done some minor plumbing work, such as sink or toilet repair, for

friends or family. Tr. at pp. 34-36. He testified that he was generally able to lift between

fifteen to twenty pounds, and that these jobs required him to lift, carry, push, or pull less

25

than fifteen pounds. Tr. at pp. 31, 36. These plumbing projects typically required one

to two hours of work at the most. Tr. at pp. 36-37. Plaintiff estimated that he had

performed less than ten of these types of jobs per year and would often go several weeks

or a month between jobs. Tr. at p. 36. Plaintiff also testified that although he had not

“)had significant earnings since 2013, he had not turned in the state tax certificate for his

business and closed his business bank account until 2015 or 2016. Tr. at pp. 35, 42, 47.

The ALJ’s decision only briefly mentioned Plaintiff's twenty-year work history

prior to his application for benefits, and did not reference it in the evaluation of

Plaintiff's testimony. Tr. at p. 15. That omission alone would not merit remand.

“Although a good work history may be deemed probative of credibility . . . it bears

emphasizing that work history is just one of many factors that the ALJ is instructed to

consider in weighing the credibility of claimant testimony.” Schaal v. Apfel, 134 F.3d

496, 502 (2d Cir. 1998). Here, the ALJ properly considered a number of other factors

when assessing Plaintiff’s subjective complaints of pain and other functional limitations,

including the testimony’s consistency with the medical evidence, Plaintiff's daily

activities, and the opinion evidence. Tr. at pp. 17-21; Wavercak v. Astrue, 420 Fed.

Appx. 91, 94 (2d Cir. 2011) (“That [the claimant’s] good work history was not

specifically referenced in the ALJ’s decision does not undermine the credibility

assessment, given the substantial evidence supporting the ALJ’s decision.”).

Plaintiff has provided an addendum to his brief that includes treatment notes

dating as far back as 2006. PI.’s Mem. of Law at pp. 34-47. Plaintiff recognizes that

26

most of the fourteen pages provided to the court are illegible, although some reference

“pain” and an MRI of the lumbar spine. Pl.’s Mem. of Law at p. 26. None of those

documents were provided to the ALJ or the Appeals Council. Plaintiff requests that the

Court consider these documents not for their probative value, but as evidence that such

4) additional records were available if the ALJ had made an effort to obtain them before

discounting Plaintiff's testimony.

This Court may not consider evidence outside the record in determining whether

the Commissioner’s decision was supported by substantial evidence. See 42 U.S.C. §

405(g) (requiring decision “upon the pleadings and transcript of the record”); Selian v.

Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (“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.”’). A court

may remand a case to the Commissioner to consider additional evidence “upon a

showing that there is new evidence which is material and that there is good cause for the

failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. §

405(g). Plaintiff has made no such showing here, and instead asks the court to find that

the existence of earlier records demonstrates that the ALJ erred by failing to obtain such

records before evaluating Plaintiffs testimony.

Defendant correctly points out that the Second Circuit recently addressed this

issue in Bushey v. Colvin where the court held:

27

To the extent [Plaintiff] seeks remand on the ground that the

Commissioner failed adequately to develop the record, that argument is

meritless. The Commissioner was required to “develop a complete

medical history of at least the preceding twelve months” from [Plaintiffs]

application date, 1.e., through January 2010. 42 U.S.C. § 423(d)(5)(B);

see also 20 C.F.R. § 404.1512(d)(2) (“By ‘complete medical history,’ we

mean the records of your medical source(s) covering at least the 12 months

preceding the month in which you file your application.”). [Plaintiff] has

not pointed to any evidence subsequent to that date that was not included

in the record but could have influenced the Commissioner’s decision.

Moreover, although the Commissioner is required “to gather such

information for a longer period if there was reason to believe that the

information was necessary to reach a decision,” that obligation is lessened

where, as here, the claimant is represented by counsel who makes

insufficient efforts to incorporate earlier records, and, in any event, we

find nothing in the record that would have given the Commissioner reason

for such a belief. DeChirico v. Callahan, 134 F.3d 1177, 1184 (2d

Cir. 1998).

Bushey v. Colvin, 607 Fed. Appx. 114, 115-116 (2d Cir. 2015).

In this case, the record before the ALJ included material dating back more than

twelve months prior to Plaintiff's September 15, 2016 application for benefits. Tr. at

pp. 139-142, 238. During the administrative hearing, the ALJ confirmed the alleged

onset date of July 1, 2014, and gave Plaintiff, represented by counsel, an opportunity to

seek supplemental documents or otherwise object to the closing of the record. Tr. at pp.

“29-31. Plaintiffs counsel even raised the possibility of amending the onset date to April

2015 to better correspond to the record. Tr. at p. 42. Therefore, this Court finds that the

ALJ satisfied his obligations under the regulations, as interpreted by Bushey.

Overall, the ALJ identified substantial evidence to conclude that Plaintiff's

subjective complaints were not consistent with the record evidence, including Plaintiffs

28

hearing testimony and his reports to medical providers. Doing so was not only

consistent with, but required by, SSR 16-3p which states that the Social Security

Administration “will compare statements an individual makes in connection with the

individual’s claim for disability benefits with any existing statements the individual

made under other circumstances.” Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *8

(March 16, 2016). While Plaintiff points to other evidence in the record, it was

ultimately for the ALJ, not the Court to resolve such evidentiary conflicts. Schlichting

v. Astrue, 11 F. Supp. 3d 190, 206 (N.D.N.Y. 2012) (quoting Carroll v. Sec’y of Health

and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)).

In summary, while the Court concludes that several of the issues raised by

Plaintiff lack merit, remand is necessary here on the limited issue of the ALJ’s

consideration of Dr. Rosenthal’s opinion under the treating physician rule. The Court

expresses no opinion as to what weight should be afforded to that opinion after proper

review or as to the ultimate question of disability.

IV. CONCLUSION

ACCORDINGLY, it is

ORDERED, that Plaintiff's Motion for Judgment on the Pleadings (Dkt. No. 11)

is GRANTED; and it is further

ORDERED, that Defendant’s Motion for Judgment on the Pleadings (Dkt. No.

15) is DENIED; and it is further

29

ORDERED, that Defendant’s decision denying Plaintiff disability benefits is

VACATED and REMANDED pursuant to Sentence Four of section 405(g) for further

proceedings; and it is further

ORDERED, that the Clerk of the Court shall serve copies of this Memorandum-

Decision and Order on the parties.

Dated: September 24, 2020

Albany, New York

Colca el Stevan”

U.SMMagistrate Judge

30