# Brown v. Saul

> District Court, N.D. New York · September 24, 2020

URL: https://www.frixlaw.com/law-library/cases/10659797

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 24, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
21

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-
22

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659797. Public record. Not legal advice.