Oliveras v. Commissioner of Social Security

EASTERN DISTRICT OF NEW YORK

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ROBERT E. SILVERMAN OLIVERAS,

ORDER

Plaintiff, 23-CV-4011 (JMA)

FILED

-against-

CLERK

COMMISSIONER OF THE SOCIAL SECURITY 2/20/202  5 3:21 pm

ADMINISTRATION, U.S. DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

Defendant.

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AZRACK, United States District Judge:

Before the Court is an appeal brought pursuant to the Social Security Act, 42 U.S.C. § 405

et seq. (the “SSA”). Plaintiff Robert Silverman Oliveras challenges final determinations by the

Commissioner of the Social Security Administration (the “Commissioner”) that he is ineligible to

receive Social Security disability insurance benefits. (See Compl., ECF No. 1.) Presently before

the Court are the parties’ cross-motions, pursuant to Fed. R. Civ. P. 12(c), for judgment on the

pleadings. (ECF Nos. 8 & 9.) Upon consideration of the administrative record and the reasons set

forth herein, the Court DENIES Plaintiff’s motion and GRANTS Defendant’s cross-motion for

judgment on the pleadings.

I. BACKGROUND

On June 6, 2016, Plaintiff applied for disability insurance benefits and supplemental

security income, alleging disability due to Hodgkin’s lymphoma and anxiety. (ECF No. 11,

Administrative Transcript (“Tr.”) 41, 135-43, 159.) Plaintiff’s application was denied, and he

requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 58-63, 68-70). Plaintiff

and his attorney appeared at a hearing before an ALJ on October 3, 2018. (Tr. 25-40). By decision

dated October 23, 2018, the ALJ denied Plaintiff’s application. (Tr. 7-26).

6, 127-29). Plaintiff then commenced a civil action in the United States District Court for the

Eastern District of New York (“District Court”) seeking judicial review. (Tr. 438-39); see Oliveras

v. Commissioner of Social Security, 19-cv-06462-JS. By memorandum and order dated March

15, 2021, the District Court remanded the case back to the Commissioner for further

proceedings. (Tr. 448-71).

On remand, the Appeals Council vacated the final decision and remanded the case to the

ALJ for further proceedings consistent with the district court’s order. (Tr. 474). Plaintiff testified

at a hearing before the ALJ on February 16, 2022; the ALJ also heard testimony from two medical

experts. (Tr. 370-411). At a subsequent hearing on February 14, 2023, Plaintiff, a medical expert,

and a vocational expert all testified. (Tr. 412-36). On February 22, 2023, the ALJ issued a decision

finding Plaintiff not disabled. (Tr. 343-369). The Appeals Council declined review of the February

22, 2023 decision, so the Administrative Law Judge’s decision became final on April 24, 2023,

and this action followed.

On May 31, 2023, Plaintiff appealed the final decision of the Commissioner by filing suit

in the United States District Court for the Eastern District of New York. (See Compl.) On March

21, 2024, Plaintiff moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (ECF

No. 8.) That same day, the Commissioner cross-moved for judgment on the pleadings. (ECF No.

9.) In connection with the motions, Plaintiff also submitted a reply brief (ECF No. 10), and the

parties also filed the administrative transcript. (ECF No. 11.)

A. Plaintiff’s Alleged Impairments

Plaintiff Robert Silverman Oliveras was born in 1993 and was 23 years old at the time of

his June 2016 social security benefits application. (Tr. 28, 130). At the hearing in October 2018,

Plaintiff reported that he had not worked on a full-time basis since June 3, 2016, after he was

also reported having trouble with his short-term memory due to his medications, which have

included valium and oxycodone. (Tr. 29-30, 33.) In his July 2016 Function Report, Plaintiff

indicated that he lived with his family and had no trouble caring for his personal needs and needed

no reminders to do so or to take his medication. (Tr. 169-71.) Plaintiff went outside every day,

drove, used public transportation, and grocery shopped. (Tr. 172.) Plaintiff was able to manage

his finances and spent his time watching television and playing video games. (Tr. 173.) Plaintiff

also socialized two to three times per week. (Tr. 173.) Plaintiff reported no problems paying

attention or finishing what he started and noted that he could follow spoken and written

instructions. (Tr. 175-76.) Plaintiff indicated that he had bad anxiety due to illness and it caused

fear, rapid heart rate, and paranoia. (Tr. 176.)

At the time of the hearing in October 2018, Plaintiff was 25 years old and had completed

high school and some college education. (Tr. 28.) Plaintiff testified that he was not working and

that he had last worked in 2017. (Tr. 28-29.) Plaintiff had worked full-time as a

telecommunications cable installer for a cable company but stopped after he was diagnosed with

stage four Hodgkin’s lymphoma in June 2016. (Tr. 29, 35.) Plaintiff received chemotherapy

treatment at Memorial Sloan Kettering until he went into remission in September 2016. (Tr. 32.)

Plaintiff continued to meet with his oncologist every three months. (Tr. 32.) In 2017, Plaintiff

tried to work; however, he stopped after three months because he was taking Valium and

Oxycodone and was “under the influence 24 hours a day.” (Tr. 29-31.)

Plaintiff also testified that he continued to see a psychologist at Sloan Kettering because he

became “very depressed” and suicidal after his cancer diagnosis, his mother’s cancer diagnosis,

1 The parties previously agreed that claimant’s cancer diagnosis does not constitute a severe impairment that lasted

for twelve consecutive months. (Tr. 349, 464.)

“heavy medication” rendering him is unable to drive and causing short-term memory difficulties.

(Tr. 33-34.) Plaintiff testified that he has “very few” friends. (Id.) However, since March 2018,

he had been able to work and had been “continuously been looking for a job,” even though he was

“scared to go back[.]” (Tr. 33.)

On remand, Plaintiff appeared at a hearing before the ALJ in February 2022 and testified

that he had owned a novelty gift shop since 2018, but that his mother ran the shop and he only

stopped by for about three hours each week to make sure it was running properly. (Tr. 376.)

Plaintiff’s girlfriend drove him to the shop. (Tr. 377.) Plaintiff testified that he could not deal with

the public and developed anxiety and stress when he was at the shop. (Tr. 377.) Plaintiff further

testified that he was unable to work due to his psychiatric issues. (Tr. 377-78.) At a subsequent

hearing in February 2023, Plaintiff reported that he had been working as a flagger at construction

sites since the prior month. (Tr. 416.)

B. Medical Evidence

Plaintiff was diagnosed with Hodgkin’s lymphoma in June 2016. (Tr. 229-31, 264.) By

letter dated, June 13, 2016, Ariela Noy, M.D., from Memorial Sloan Kettering Cancer Center wrote

that Plaintiff was to be treated over six months for lymphoma and needed an additional three

months for recovery. (Tr. 229.) She requested that Plaintiff be excused from work. (Tr. 229.)

On July 14, 2016, Plaintiff visited psychiatrist Jeffrey Freedman, M.D., at Memorial Sloan

Kettering with complaints of chemotherapy side effects. (Tr. 325.) A mental status evaluation

reflected that Plaintiff had good insight and judgment, he was well-oriented, and his attention span

and memory were intact. (Tr. 326.) Plaintiff’s mood was anxious, his thought process was logical,

coherent, goal directed, and organized, and Dr. Freedman noted that he was “clearly traumatized

and assessed his anxiety as “related to dealing with cancer.” (Id.)

On August 10, 2016, following two cycles of chemotherapy, a PET scan revealed no

evidence of active cancer. (Tr. 244-49, 266-67, 270, 301-02.) On August 15, 2016, Plaintiff saw

Dr. Noy who rated his stress level as a 9.5 out of 10. (Tr. 265, 300.) Dr. Noy noted that Plaintiff’s

medical history included adjustment disorder with anxiety, from May through June 2016. (Tr. 265,

300.) Upon examination, Dr. Noy noted that Plaintiff’s mood and affect were normal and that

Plaintiff should continue supportive oncology care with Dr. Freedman. (Tr. 266, 270, 301, 305.)

Dr. Noy observed that Plaintiff “seemed a bit relieved today with outcome of PET scan.” (Tr. 270,

305.)

On August 18, 2016, Plaintiff saw Dr. Freedman and reported that he was pleased with the

results of his cancer treatment, but remained worried about recurrence. (Tr. 297-98.) Dr. Freedman

observed that Plaintiff’s mood was euthymic and opined that “[a]nxiety may decrease based on

excellent news received about PET scan.” (Tr. 298.) He noted that Plaintiff’s thought process was

logical, coherent, goal directed, and organized, his memory and attention span were intact, and his

insight and judgment were good. (Tr. 298.) Dr. Freedman advised Plaintiff to continue

taking Klonopin, medication for anxiety. (Tr. 298.)

Plaintiff continued chemotherapy, (Tr. 291), but on August 29, 2016, nurses could not

secure a peripheral IV for the medication; thus, they planned to place a peripherally inserted central

catheter (“PICC”) line to administer the medication to Plaintiff. (Tr. 291, 295.) On September 2,

2016, a PICC line was inserted in Plaintiff’s left arm. (Tr. 333.) The same day, Plaintiff called Dr.

Freedman and reported increased anxiety related to the PICC line and raised concerns that he

would run out of Klonopin over the weekend. (Tr. 290.) Dr. Freedman renewed Plaintiff’s

prescription and noted that they would address the anxiety at their next meeting. (Id.)

related to the PICC line. (Tr. 286.) Plaintiff reported that his anxiety was not as well controlled

with Klonopin and wondered if Valium would help. (Tr. 286.) Dr. Freedman recommended

Lexapro and noted that “[f]inances is another stressor and he is in the process of applying for

disability.” (Tr. 286.) Dr. Freedman noted that Plaintiff had good insight and fair judgment, his

mood was anxious, his attention span was intact, and his thought process was logical, coherent,

goal directed, and organized. (Tr. 286-87.) Dr. Freedman also noted that Plaintiff’s memory was

intact and that he was well-oriented. (Id.)

On September 14, 2016, Plaintiff saw Dr. Noy for a fourth chemotherapy cycle. (Tr. 277.)

Plaintiff reported high stress, (Tr. 278), and Dr. Noy noted that Plaintiff should continue supportive

care with Dr. Freedman. (Tr. 284.) On September 27, 2016, Plaintiff saw Dr. Freedman for a

fourth session. (Tr. 275-76.) Dr. Freedman noted that Plaintiff had tolerated Lexapro for two

weeks without side effects. (Tr. 275.) Plaintiff reported that he did not feel a “clear benefit” from

the medication and Dr. Freedman explained it may take at least six to eight weeks to “work.” (Tr.

275.) Plaintiff reported feeling “irritable at home and seem[ed] to displace anxiety on relatively

trivial things.” (Tr. 275.) Dr. Freedman noted that Plaintiff had good insight and fair judgment,

his mood was anxious, his attention span was intact, and his thought process was logical, coherent,

goal directed, and organized. (Tr. 276.) Dr. Freedman also noted that Plaintiff’s memory was

intact and that he was well-oriented. (Id.) Dr. Freedman continued his diagnosis of adjustment

disorders with anxiety “related to dealing with cancer.” (Id.)

In a medical source statement dated September 20, 2018, Dr. Freedman opined that from

May 2016 through March 2018, Plaintiff had poor or no ability to follow work rules, relate to

coworkers, deal with the public, use judgment, interact with supervisors, deal with work stresses,

(Tr. 339-40.) Dr. Freedman further opined that Plaintiff had poor or no ability to understand,

remember and carry out job instructions, behave in an emotionally stable manner, relate

predictably in social situations, or demonstrate reliability. (Tr. 340.) In addition, Dr. Freedman

opined that anxiety affected Plaintiff’s ability to drive and maintain a regular work schedule.

(Tr. 340.)

After reviewing the evidence in the record at the time, State agency psychiatric consultant

E. Selesner, M.D., opined on October 12, 2016, that Plaintiff had mild restriction of activities of

daily living, moderate difficulties in maintaining social functioning, mild difficulties in

maintaining concentration, persistence or pace, and no repeated episodes of decompensation. (Tr.

47.) Dr. Selesner further found that Plaintiff was capable of following supervision and relating

appropriately to co-workers, as well as sustaining attention and responding to changes in the work

setting. (Tr. 51.)

There is a gap in Plaintiff’s treatment records until February 2019, when Plaintiff was seen

by William Blau, M.D., following a syncopal event. (Tr. 803.) Dr. Blau noted that Plaintiff’s last

oncology evaluation six months earlier revealed no recurrence. (Id.) Plaintiff reported that he had

been taking Valium since being diagnosed with anxiety, and he had been feeling well until the prior

Friday when he had a seizure, passed out, and bit his tongue. (Id.) Testing showed normal EKG

tracing, and Dr. Blau’s examination findings were unremarkable. (Id.) Records from March 12,

2019 indicate that Plaintiff was seen for follow up of his lymphoma and reported that Dr. Freedman

would no longer renew his Valium prescription due to poor follow-up and that he was told that he

must find a new psychiatrist. (Tr. 356, 996.)

In March 2019, Plaintiff visited Joseph Weaver, a psychiatric mental health nurse

Practitioner (“PMHNP”), of Nassau Psychiatric Services (“Nassau Psychiatric”) with complaints

reported that he was taking Valium but had been unable to make a psychiatry appointment for

three months and was running out of the medication; when he tried to wean himself from the

Valium, he experienced a seizure. (Tr. 923.) On mental status examination, Plaintiff was alert,

oriented, and had an anxious mood with congruent affect; his speech was fluent and spontaneous

and thought processes were linear and goal-oriented; he had no suicidal or homicidal ideation, or

hallucinations; his memory, attention, and concentration were intact; and he had good judgment

and insight. (Tr. 924.) Mr. Weaver recommended switching from Valium to Klonopin. (Tr. 926.)

Plaintiff subsequently switched to Klonopin. (Tr. 921.) By May, Plaintiff reported feeling “a bit

better,” (Tr. 913), and by his June appointment, Plaintiff told Mr. Weaver that he was doing well

with very few panic symptoms over the prior few months. (Tr. 910.)

Mr. Weaver documented unremarkable mental status examination findings for both

appointments with Plaintiff, including fluent speech, goal-oriented and linear thought processes,

full orientation, intact memory and attention/concentration, fair judgment and insight, and a good

mood. (Tr. 910-11, 914-15.) Plaintiff continued to visit Mr. Weaver monthly and by September

2019, Mr. Weaver noted:

The patient’s affective and emotional state appeared generally positive and

functioning appeared to be very good with minimal difficulties and is able to cope

well in most areas of life (e.g., relationships, work/school, and leisure). The patient

is quite content and reports only everyday difficulties and concerns. The patient’s

overall level of mental and emotional functioning suggests no difficulty and/or

impairment.

(Tr. 898.) More specifically, Ms. Weaver wrote that Plaintiff had:

mild difficulty with social interaction and interpersonal relationships. The patient

has no difficulty engaging in and maintaining day-to-day functioning at work,

school and/or in the household. The patient has mild impairment in the ability to

engage in social, family, and community functions and obligations.

November, and December appointments, with notes indicating that Plaintiff was doing well and

his mood had been good. (Tr. 882-83, 885-87, 890-92.)

In February 2020, Plaintiff visited Martha Alzamora, M.D., of Nassau Psychiatric, with

complaints of anxiety, panic attacks, and benzodiazepine dependence. (Tr. 877.) Plaintiff

indicated that he was working for Amazon and managing a medical marijuana and CBD business;

six months earlier he had applied for a job with a customs agency, but he needed to taper off

benzodiazepines to continue with the job application. (Tr. 877.) Plaintiff also reported having a

seizure the prior year related to possible benzodiazepine withdrawal. (Tr. 877.) On mental status

examination, Dr. Alzamora found that Plaintiff was alert, made good eye contact, and had normal

speech (Tr. 877.) Plaintiff’s treatment records indicate that he had an anxious mood and affect;

intact logical and goal-directed thought processes; intact memory, attention, and concentration; no

delusions or hallucinations; limited insight; and fair judgment and impulse control. (Tr. 877-78.)

Plaintiff continued to visit Dr. Alzamora monthly, and by April she documented a euthymic mood,

good insight, good judgment, and good impulse control. (Tr. 872-73.) At his July appointment,

Dr. Alzamora observed that Plaintiff was doing well weaning off of benzodiazepines, and although

anxiety was still present, he was not willing to try any new psychotropic medications at that time.

(Tr. 866.) Mental status examination findings were unchanged from earlier visits. (Tr. 866.)

In August 2020, Plaintiff began seeing Danielle Hearne, PMHNP, under Dr. Alzamora’s

Supervision. (Tr. 863, 865.) Ms. Hearne’s mental status examination findings were generally

unremarkable, including a full-range affect and euthymic mood, logical and goal-directed thought

processes devoid of delusion or hallucination, intact memory, intact concentration and attention,

and good insight and judgment; she continued the plan for a slow taper from benzodiazepines. (Tr.

863-64.) Plaintiff related that his anxiety level was consistently high and slept only two to three

psychotherapy as treatment options. (Tr. 863-64.) Plaintiff visited Ms. Hearne throughout the

remainder of 2020 and into 2021 to manage his slow taper from benzodiazepines, (Tr. 845-46,

848-49, 851-52, 854-55, 857-58, 860-61), and by March 2021, he believed his anxiety level was

manageable.2 (Tr. 843.)

Ms. Hearne also noted that during this time period, Plaintiff used medical marijuana daily.

(Tr. 845, 848, 851, 854, 857, 860.) By May 2021, Plaintiff reported that he was smoking marijuana

“pretty much all day,” but he continued to indicate that his anxiety level was manageable. (Tr.

836-837.) Although he continued to feel very stressed on most days, he was overwhelmed by work

demands and his business, which was not currently successful. (Tr. 836.) He was not engaged in

psychotherapy, never had been, and was not interested in engaging in it, despite strong

recommendations to do so. (Tr. 358, 836). Plaintiff continued seeing Ms. Hearne through the

remainder of the year, during which time clinical findings remained unremarkable, (Tr. 931-32,

934-35, 937-38, 940-41, 943-44, 1142-43), and by December, he reported that he had successfully

completed a full month without benzodiazepines. (Tr. 1139.)

Plaintiff met with John Miller, Ph.D., in July 2022 for a consultative psychiatric evaluation.

(Tr. 1399.) He reported not currently working because he had received no job offers and previously

closing his store because it was not profitable. (Tr. 1399.) Plaintiff reported waking up 4-5 times

a night because of anxiety and night terrors, weight loss of 120 pounds over the past two years,

recurring depressive episodes, dysphoric moods and occasional diminished sense of pleasure. (Id.)

Plaintiff reported activities of daily living including handling his personal care, cooking, cleaning,

and socializing with friends and family. (Tr. 1401.) On mental status examination, Dr. Miller

2 Separately, in January of 2021, Plaintiff reportedly underwent right hip surgery to repair torn labrum and bone

spurs after a motor vehicle accident. (Tr. 1091.)

appropriate eye contact, clear and fluent speech, and an anxious mood and affect. (Tr. 1400.) He

exhibited coherent and goal-directed thought process, intact attention and concentration, intact

recent and remote memory, and good insight and judgment. (Tr. 1400-01.) Dr. Miller opined that

Plaintiff would be mildly limited in understanding and applying complex directions, interacting

appropriately with others, sustaining concentration, and sustaining an ordinary routine and regular

attendance at work; and moderately limited in regulating emotion, controlling behavior, and

maintaining well-being. (Tr. 1401.)

Medical expert Ira Hymoff, Ph.D., testified at the hearing on February 14, 2023, noting a

diagnosis of anxiety disorder with mild to moderate limitations that did not meet or equal the

criteria of a listed impairment. (Tr. 421, 423-24.) Dr. Hymoff opined that Plaintiff had moderate

limitations in his abilities to understand, remember, or apply information based on side effects of

his medications; interact with others based on interpersonal difficulties and social discomfort;

concentrate, persist, or maintain pace based on panic and anxiety impacting concentration; and had

some issues adapting and managing himself. (Tr. 424-30.) He testified that Plaintiff’s anxiety was

mostly managed with medication and medical marijuana with some symptoms despite compliance

with treatment. (Tr. 423-30.) He further opined that Plaintiff could perform simple routine tasks;

make simple work-related decisions; occasionally interact with supervisors, coworkers, and the

public; and tolerate occasional or modest changes in work expectation; but could not perform work

requiring timed production standards. (Tr. 424-30.)

C. ALJ Weiss’s Decision

ALJ Weiss issued his decision on February 18, 2023. (Tr. 343-369.) He applied the five-

step process described below, pursuant to 20 C.F.R. § 404.1520. (Id.) At step one, the ALJ found

that Plaintiff had not engaged in substantial gainful activity since June 6, 2016, the social security

impairments of anxiety disorder and degenerative joint disease of the right hip. (Tr. 349-50.) At

step three, the ALJ found that these impairments did not satisfy the criteria of a listed impairment.

(Tr. 350-54.) Then, the ALJ found that Plaintiff retained the RFC to perform:

sedentary work as defined in 20 CFR 416.967(a) except [Plaintiff] can

lift/carry/push/pull 10 pounds occasionally and less than 10 pounds frequently; sit

for 6 hours and stand/walk for 2 hours in an eight-hour workday; and cannot be

exposed to excessive dust or work in a dirty environment. In addition, [Plaintiff]

can perform simple, routine tasks; use judgement to perform simple work-related

decisions; occasionally interact with coworkers, supervisors, and the public; and

can perform work that does not require time production standards such as an

assembly line; and can tolerate occasional changes in work expectations.

(Tr. 354.) At step four, the ALJ found that Plaintiff did not have past relevant work. (Tr. 361.) At

step five, the ALJ considered the testimony of a vocational expert and found that, given

Plaintiff’s RFC and vocational profile (age, education, and work experience), he could perform

work that exists in significant numbers in the national economy, including in representative

occupations as an addresser and escort vehicle driver. (Tr. 361-62.) Accordingly, the ALJ found

that Plaintiff was not disabled from June 6, 2016, through the date of the decision. (Tr. 362.)

II. LEGAL STANDARDS

A. Social Security Disability Standard

To qualify for disability benefits under Title XVI, an individual must be (i) insured for

disability benefits; (ii) not have attained retirement age; (iii) be a U.S. citizen or a foreign national

under certain circumstances not relevant here; and (iv) have a “disability.” 42 U.S.C. § 423(a)(1).

The SSA defines “disability” to mean that an individual cannot “engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which can be

expected to result in death, or which has lasted or can be expected to last for a continuous period

not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). Additionally, the impairment must be

“of such severity that [the claimant] is not only unable to do his previous work but cannot,

gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).

The Social Security Administration has promulgated implementing regulations prescribing

a five-step analysis for ALJs to follow to determine if a claimant is eligible for disability benefits.

See 20 C.F.R. § 404.1520. The Second Circuit summarizes that analysis as follows:

First, the Commissioner considers whether the claimant is currently engaged in

substantial gainful activity. If he is not, the Commissioner next considers whether

the claimant has a ‘severe impairment’ which significantly limits his physical or

mental ability to do basic work activities. If the claimant suffers such an

impairment, the third inquiry is whether, based solely on medical evidence, the

claimant has an impairment which is listed in Appendix 1 of the regulations. If the

claimant has such an impairment, the Commissioner will consider him disabled

without considering vocational factors such as age, education, and work

experience .... Assuming the claimant does not have a listed impairment, the fourth

inquiry is whether, despite the claimant’s severe impairment, he has the residual

functional capacity to perform his past work. Finally, if the claimant is unable to

perform his past work, the Commissioner then determines whether there is other

work which the claimant can perform.’

Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Bushey v. Berryhill, 739 F. App’x 668, 671

(2d Cir. 2018) (similar). The claimant bears the burden of proof at steps one through four, and

then the burden shifts to the Commissioner at step five to demonstrate that claimant is capable of

work. Talavera, 697 F.3d 145 at 152; Williams v. Comm’r of Soc. Sec., No. 20-CV-02665, 2021

WL 4690794, at *1 (E.D.N.Y. Oct. 7, 2021) (“the claimant bears the burden of proof in the first

four steps of the inquiry; the Commissioner bears the burden in the final step.”) (internal citation

omitted).

B. Standard of Review

“The Court’s review of a Commissioner’s denial of disability insurance benefits is limited

to two inquiries: (1) whether the Commissioner applied the correct legal standards in reaching a

decision, and (2) whether the Commissioner’s factual findings were ‘supported by substantial

evidence in the record as a whole.’” Greek v. Colvin, 802 F.3d 370, 374-75 (2d Cir. 2015)). “The

de novo whether [the claimant] is disabled.’” Id., 516 F. Supp. 3d at 220 (quoting Cage v. Comm’r

of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012)); see also Greek, 802 F.3d at 374-75 (“The disability

within the meaning of the Act belongs to the Commissioner.”).

Regarding the first inquiry, the Court must determine whether “the claimant has had a full

hearing under the [Commissioner’s] regulations and in accordance with the beneficent purposes

of the [Social Security] Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal

quotation marks and citation omitted); accord Zacharopoulos v. Saul, 516 F. Supp. 3d 211, 220

(E.D.N.Y. 2021). “Failure to apply the correct legal standard constitutes reversible error,

including, in certain circumstances, failure to adhere to the applicable regulations.” Edwards v.

Comm’r of Soc. Sec. Admin., No. 22-CV-4345, 2023 WL 6173526, at *2 (S.D.N.Y. Sept. 22,

2023) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)).

Inquiry into whether the Commissioner’s factual findings are supported by substantial

evidence requires the reviewing court to “examine the entire record, including contradictory

evidence and evidence from which conflicting inferences can be drawn.” Snell v. Apfel, 177 F.3d

128, 132 (2d Cir. 1999) (internal quotation marks and citation omitted)). “Substantial evidence”

is “more than a mere scintilla.” Ryan on Behalf of V.D.C. v. Comm’r of Soc. Sec., No. 21-2947-

CV, 2022 WL 17933217, at *1 (2d Cir. 2022) (citation omitted). “It means such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation

marks omitted). The findings of the Commissioner as to any fact though, if supported by

substantial evidence, are conclusive. 42 U.S.C. § 405(g). Thus, the relevant question is not

whether substantial evidence supports Plaintiff’s position, but whether “substantial evidence

supports the ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013)

(emphasis in original). This is a “highly deferential standard of review.” Spellman v. Comm’r of

v. Berryhill, 733 F. App’x 1, 2 (2d Cir. 2018)).

III. DISCUSSION

A. Standards for Reviewing the ALJ’s RFC Determination

In deciding a disability claim, an ALJ must “weigh all of the evidence available to make

an [Residual Functional Capacity] [“RFC”] finding that [is] consistent with the record as a whole.”

Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013). The RFC determination represents “the most

[a claimant] can still do despite [the claimant’s] limitations.” Barry v. Colvin, 606 F. App’x 621,

622 n.1 (2d Cir. 2015); see also Crocco v. Berryhill, 2017 WL 1097082, at *15 (E.D.N.Y. Mar.

23, 2017) (stating “an RFC determination indicates the ‘nature and extent’ of a claimant’s physical

limitations and capacity for work activity on a regular and continuing basis”) (quoting 20 C.F.R.

§ 404.1545(b)). The Court must uphold this determination when it is supported by substantial

evidence. See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to

any fact, if supported by substantial evidence, shall be conclusive”); Alvarez v. Comm’r of Soc.

Sec., No. 20-CV-03963, 2023 WL 2464961, at *1 (E.D.N.Y. Mar. 10, 2023) (same).

The “treating physician rule” provides that the medical opinions and reports of Plaintiff’s

treating physicians are to be given “special evidentiary weight.” Clark v. Comm’r of Soc. Sec.,

143 F.3d 115, 118 (2d Cir. 1998); see 20 C.F.R. § 404.1527(c)(2).3 However, the opinion of a

treating physician “need not be given controlling weight where [it is] contradicted by other

substantial evidence in the record.” Molina v. Colvin, No. 13-CV-4701, 2014 WL 3925303, at *2

(S.D.N.Y. Aug. 7, 2014) (internal quotation marks and citation omitted).

3 “[T]he Court reviews the ALJ’s decision under the earlier regulations because the Plaintiff’s application was filed

before the new regulations went into effect.” Williams v. Colvin, No. 16-CV-2293, 2017 WL 3701480, at *1

(E.D.N.Y. Aug. 25, 2017); see also 20 C.F.R. § 404.1527 (“For claims filed (see § 404.614) before March 27, 2017,

the rules in this section apply. For claims filed on or after March 27, 2017, the rules in § 404.1520c apply.”).

ALJ must consider several factors: “(1) the length of the treatment relationship and frequency of

the examination; (2) the nature and extent of the treatment relationship; (3) the extent to which the

opinion is supported by medical and laboratory findings; (4) the physician's consistency with the

record as a whole; and (5) whether the physician is a specialist.” Schnetzler v. Astrue, 533 F.

Supp. 2d 272, 286 (E.D.N.Y. 2008). The Second Circuit has distilled these down into the four

“Burgess” factors: “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of

medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining

medical evidence; and (4) whether the physician is a specialist.” Selian v. Astrue, 708 F.3d 409,

418 (2d Cir. 2013) (citing Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) (citing 20 C.F.R. §

404.1527(c)(2))). The ALJ must “explicitly consider” the Burgess factors when assigning less-

than-controlling weight to a treating source opinion; if not, the Court will conduct “a searching

review of the record” and will affirm where “the substance of the treating physician rule was not

traversed.” Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019) (quoting Halloran v. Barnhart,

362 F.3d 28, 32 (2d Cir. 2004).

The ALJ must also set forth “‘good reasons’ for not crediting the opinion of a [plaintiff’s]

treating physician.” Id. at 287. An ALJ provides “‘good reasons’ for discounting a treating

physician’s opinion if they reflect in substance the factors as set forth in [Section] 404.1527(d)(2),

even though the ALJ declines to examine the factors with explicit reference to the regulation.”

Crowell v. Comm’r of Soc. Sec., 705 F. App’x 34, 35 (2d Cir. 2017) (“While the ALJ did not

explicitly discuss the treating physician rule, he nonetheless stated that [the physician's] opinion ...

was contradictory to the rest of the record evidence.”).

Plaintiff contends that the ALJ erred when he did not give controlling weight to the opinion

from treating psychiatrist Dr. Freedman. (See ECF No. 8 at 14-18.) Plaintiff asserts that while

ALJ Weiss assigned Dr. Freedman’s opinion “some weight,” he failed to provide “good reasons”

for giving Dr. Freedman’s opinions less than controlling weight. (Id. at 16.) Specifically, Plaintiff

argues that ALJ Weiss appears to have based his RFC determination solely on the opinion of non-

treating and non-examining medical expert Dr. Hymoff, without giving adequate consideration to

the fact that Dr. Freedman was a psychiatrist who treated Plaintiff monthly for several years. (Id.

at 17.) Plaintiff further argues that ALJ Weiss did not address whether Dr. Freedman’s opinion

was supported by medically acceptable clinical and laboratory diagnostic techniques or was

inconsistent with other substantial evidence in the record. (Id.) Plaintiff asserts that this purported

failure constitutes prejudicial error and thus requires a remand to the Commissioner for further

proceedings. (ECF No. 8 at 18.)

Plaintiff’s arguments, however, are not supported by the record, and ALJ Weiss’s decision

is based on substantial evidence. It is within the ALJ’s discretion to resolve genuine conflicts in

the evidence when formulating the RFC finding. See Veino v. Barnhart, 312 F.3d 578, 588 (2d

Cir. 2002); see also Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (“In our review,

we defer to the Commissioner’s resolution of conflicting evidence.”). To that end, an ALJ has the

purview to reject those portions of a medical opinion that are inconsistent with or contrary to the

evidence of record, while accepting those portions that are supported by the record evidence. See

Veino, 312 F.3d at 588. The Court finds that ALJ Weiss carefully reviewed the record and complied

with all regulations in rendering his decision.

The ALJ concluded that Dr. Freedman’s opinion was not entitled to controlling weight

because it was not supported by his own objective clinical examinations that documented largely

thought process, intact memory and attention span, good insight and judgment, and an absence of

delusions or hallucinations. (Tr. 360; see Tr. 276, 287-88, 298, 326-27); see 20 C.F.R. §

416.927(c)(1), (3). The ALJ further noted that Dr. Freedman’s treating notes did not document

any issues interacting or controlling emotion. (Tr. 360; see Tr. 276, 286-87, 298, 325-26.) The

ALJ also explained that Dr. Freedman’s medical opinion noting extreme limitations was

inconsistent with the clinical findings from multiple other treatment providers who treated and

evaluated Plaintiff. (Tr. 360, citing Tr. 830-928, 931-45, 947-1077, 1134-44, 1399-1402). While

Plaintiff reported anxiety at times as he weaned of benzodiazepines, clinical findings were

unremarkable beyond an occasional anxious mood or affect. (Tr. 360, citing various parts of the

administrative transcript); see 20 C.F.R. § 416.927(c)(4).

Plaintiff contends that the ALJ committed error by failing to mention that Dr. Freedman

was Plaintiff’s treating psychiatrist “for several years,” (ECF No. 8 at 17), but the ALJ expressly

acknowledged the length of the treating relationship as documented in the record. (Tr. 355, 360.)

Specifically, the ALJ noted that Plaintiff began treating with Dr. Freedman shortly after he was

diagnosed with Hodgkin’s lymphoma, around July 2016, and continued treatment until September

2016. (Tr. 355, citing Tr. 235; Tr. 360.) Therefore, the record before the ALJ reflects that Plaintiff

treated with Dr. Freedman for a period of approximately three months. See 20 C.F.R. §

416.1527(c)(2) (“Generally, the longer a treating source has treated you and the more times you

have been seen by a treating source, the more weight we will give to the source’s medical

opinion.”). While Plaintiff suggests that he treated with Dr. Freedman “for several years,” there

document four meetings with Plaintiff between July 14, 2016 and September 27, 2016.4

The Court finds that the ALJ did not err in according less weight to Dr. Freedman’s opinion,

because the ALJ explained that it was not supported by Dr. Freedman’s own treatment notes

reflecting mostly normal examinations and effective management of symptoms with medication.

The Court recognizes that Dr. Freedman diagnosed Plaintiff with anxiety and related mental issues,

but his notes reflect that Plaintiff was able to function despite these issues. Thus, Dr. Freedman’s

opinion stating that Plaintiff had severe, significant limitations is not in harmony with his own

treatment notations. See Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017) (“the

ALJ [properly] rejected [the treating physician's] opinion because she found it was contrary to his

own treatment notes” and “[w]hile [the] medical source statement is supported by some evidence,

the ALJ’s decision to disregard [the] opinion is nevertheless substantially supported by the

record.”). Notably, in Monroe, the ALJ did not afford controlling weight to the claimant’s

psychiatrist even where he treated the claimant with counseling and medication for anxiety and

depression for over fifteen years. Monroe v. Comm’r of Soc. Sec., No. 14-CV-1035, 2015 WL

13744412, at *2-3 (N.D.N.Y. Nov. 3, 2015), report and recommendation adopted, 2016 WL

552364, aff’d 676 F. App’x 5.

While Plaintiff argues that the only evidence supporting the ALJ’s RFC assessment was

the opinion from non-examining source Dr. Hymoff, the ALJ’s RFC finding was properly based

on an evaluation of the full record—including clinical findings from other treatment providers, the

nature of Plaintiff’s treatment, and Plaintiff’s reports of his own activities—not merely medical

4 In support of Plaintiff’s claim that he treated with Dr. Freedman for “several years,”, Plaintiff cites to Tr. 454, the

prior district court decision remanding the case. This decision does not state that Plaintiff treated with Dr. Freedman

for years. Instead, it notes that the earliest available treatment record from Dr. Freedman was July 14, 2016, though

it appears that Plaintiff may have begun treatment prior to that date, although no earlier than June 2016. (Tr. 454);

see Oliveras v. Comm’r of Soc. Sec., No. 19-CV-6462, 2021 WL 965155, at *8 (E.D.N.Y. Mar. 15, 2021). There is

nothing in the record establishing that Plaintiff’s visits with Dr. Freedman continued beyond September 2016.

Psychiatric Services from 2019 through 2021, with treatment records documenting largely normal

exams with findings of intact memory, attention, concentration, thought process and content, as

well as largely good insight, judgment, and impulse control. (Tr. 357.) While there were also

some reports of anxiety and stressed mood, Plaintiff’s mental status was generally unremarkable

and unchanged, with medical notes indicating that treatment was successful. (Id., citing Tr. 836-

917.) And the ALJ recognized that although Plaintiff reported anxiety during this time, Plaintiff

also indicated that it was manageable and did not want to try any other psychotropic medications

or counseling. (Tr. 354-60.) Such evidence supports the ALJ’s finding that, while Plaintiff had

some degree of limitation from his mental impairment, it did not preclude him from performing

unskilled work.

In addition to the evidence showing benign clinical findings and conservative treatment,

the ALJ found that consultative examiner Dr. Miller’s opinion was entitled to good

weight. (Tr. 359-60). After examining Plaintiff and documenting unremarkable mental status

findings, Dr. Miller opined that Plaintiff had some moderate limitations in regulating emotion,

controlling behavior, and maintaining well-being as well as some mild limitations in interacting

with others, sustaining concentration, performing at a consistent pace, and sustaining an ordinary

routine and attendance. (Tr. 359, citing Tr. 1399-1402.) The ALJ also gave good weight to the

opinion from expert psychologist Dr. Hymoff, who testified that Plaintiff could perform simple,

routine work, make simple work-related decisions, occasionally interact with others, tolerate

occasional changes in workplace expectations, and could not perform production pace work. (Tr.

359; see Tr. 421-32). Notably, Dr. Hymoff rendered this opinion after reviewing the full record

before the ALJ. (Tr. 421.) Thus, in assessing Plaintiff’s RFC, the ALJ considered the full record

and weighed the relevant evidence, including the consultative exam of Dr. Miller and the expert

own lay interpretation for that of a medical expert in his assessment of the RFC. See Heath v.

Barnhart, No. 04-CV-2926, 2005 WL 1691044, at *5 (E.D.N.Y. July 20, 2005) (“Rather than

substituting his own medical opinion for that of [the treating physician], the ALJ simply chose to

credit the opinions of two medical experts who found no medical evidence to support the pain of

which [Plaintiff] complained, and whose opinions were therefore at odds with [the treating

physician’s.”)

After carefully considering the entire record and the ALJ’s opinion, the Court finds that the

ALJ applied the substance of the treating physician rule. The Court therefore concludes that ALJ

Weiss’s RFC determination is supported by substantial evidence and must be upheld. See 42

U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported

by substantial evidence, shall be conclusive”); Alvarez, 2023 WL 2464961, at *1 (E.D.N.Y. Mar.

10, 2023) (same).

C. Substantial Evidence Supports the ALJ’s Step-Five Finding

Plaintiff also argues that ALJ Weiss improperly relied on the testimony of a vocational

expert in determining which jobs Plaintiff could perform because the Dictionary of Occupational

Titles (“DOT”)’s description of these jobs is outdated and ALJ Weiss did not adequately inquire

into whether these jobs exist in substantial numbers in the modern economy. (See ECF No. 8 at

18-20.) The ALJ acknowledged that Plaintiff could not perform a full range of sedentary work

due to additional non-exertional limitations, and the ALJ obtained vocational expert testimony to

determine the effect of Plaintiff’s limitations on the unskilled occupational base. (Tr. 433-34.) The

vocational expert testified that an individual with Plaintiff’s vocational factors and RFC could

perform such representative occupations as addresser, with 2,000 jobs available, and escort driver,

with 30,000 jobs available. (Tr. 433-34.) Plaintiff argues that the DOT job descriptions for both

(ECF No. 8 at 19.) In support of this argument, Plaintiff cites case law in and out of this Circuit

noting that the addresser position is obsolete or “no longer exists as an isolated role, at least not in

significant numbers.” (Id.); see Hawthorne v. Comm’r of Soc. Sec., No. 20-CV-02247, 2021 WL

4356009, at *2 (E.D.N.Y. Sept. 24, 2021).

Plaintiff’s argument is unavailing, as the ALJ is entitled to give credit to vocational expert

testimony “on the basis of the expert’s professional experience and clinical judgement . . . which

was not undermined by any evidence in the record.” McIntyre v. Colvin, 758 F.3d 146, 152 (2d

Cir. 2014). Plaintiff did not challenge the vocational expert’s assessment at the administrative

hearing, and Plaintiff has not otherwise alleged that there was any evidence in the record to

contradict the vocational expert’s assessment.

Neither the SSA nor the Commissioner regulations “provide a definition for a ‘significant’

number of jobs.” Dianne H. v. Kijakazi, 21-CV-06235, 2022 WL 17251583, at *7 (S.D.N.Y. Nov.

28, 2022) (citation omitted). However, Courts have generally found the “significant number”

threshold is “fairly minimal” and the quantity of each individual type of job may be aggregated for

these purposes. Id. (quoting Hamilton v. Comm’r of Soc. Sec., 105 F. Supp. 3d 223, 229-30

(N.D.N.Y. 2015)). Courts in this Circuit have held that national numbers above 9,000 are

“significant.” Dianne H., 2022 WL 17251583, at *8 (“[A] total number over 17,000 is sufficient

to satisfy the Commissioner’s step five burden.”); see also Mota v. Comm’r of Soc. Sec., No. 20-

CV-07294, 2022 WL 464098, at *12 (S.D.N.Y. Feb. 15, 2022) (finding a total number of 9,600

jobs was significant); Gray v. Colvin, No. 12-CV-6485, 2014 WL 4146880, at *6 (W.D.N.Y. Aug.

19, 2014) (finding that 16,000 jobs is significant).

At a minimum, substantial evidence supports the ALJ’s finding that Plaintiff can perform

the escort driver position. There exists a significant number of jobs in the national economy for

416.966(b) (“Work exists in the national economy when there is a significant number of jobs (in

one or more occupations) having requirements which [the claimant is] able to meet with [his]

physical or mental abilities and vocational qualifications.”); Bavaro v. Astrue, 413 F. App’x 382,

384 (2d Cir. 2011) (citing 20 C.F.R. § 404.1566(b) and explaining that the Commissioner “need

show only one job existing in the national economy” that the claimant can perform); Brennan v.

Colvin, No. 14-CV-3165, 2016 WL 236227, at *5 (E.D.N.Y. Jan. 19, 2016) (“As the regulation

notes, a finding of plaintiff’s ability to perform even one occupation can be enough to satisfy the

requirement that a significant number of jobs exist in the national economy.”); Lamont v. Comm’r

of Soc. Sec., No. 20-CV-4581, 2021 WL 5084060 (E.D.N.Y. Nov. 2, 2021) (recognizing the

regulations require identification of only one job).

Thus, the Court finds that the ALJ properly relied upon the vocational expert testimony and

that the ALJ’s determination at step five is supported by substantial evidence.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiff’s motion for judgment on the

pleadings and GRANTS the Commissioner’s cross-motion. The Clerk of The Court is respectfully

directed to enter judgment accordingly and close this case.

SO ORDERED.

Dated: February 20, 2025

Central Islip, New York

/s/ (JMA)

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE