Demars v. Commissioner of Social Security

Filing 36

RULING. For the reasons set forth in the attached Ruling, plaintiff's 27 Motion to Reverse the Decision of the Commissioner is DENIED, and defendant's 33 Motion to Affirm the Decision of the Commissioner is GRANTED. Signed by Judge Sarah A. L. Merriam on 3/31/19. (Dowie, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
JOSEPH JOHN DEMARS
:
:
v.
:
:
NANCY A. BERRYHILL,
:
ACTING COMMISSIONER, SOCIAL
:
SECURITY ADMINISTRATION
:
:
------------------------------x

Civ. No. 3:18CV00432(SALM)

March 31, 2019

RULING ON CROSS MOTIONS
Plaintiff, Joseph John Demars, brings this appeal pursuant
to §205(g) of the Social Security Act (“the Act”), as amended,
seeking review of a final decision by the Acting Commissioner of
the Social Security Administration (the “Commissioner”) denying
his application for Disability Insurance Benefits (“DIB”).
Plaintiff has moved for an order reversing the decision of the
Commissioner, or in the alternative, for remand [Doc. #27].
Defendant has filed a motion for an order affirming the decision
of the Commissioner [Doc. #33]. Plaintiff has filed a “Notice
Regarding the Commissioner’s Statements of Medical Evidence”
[Doc. #35]. This document contains some argument, and the Court
will construe it as plaintiff’s timely reply.
For the reasons set forth below, plaintiff’s Motion to
Reverse or Remand [Doc. #27] is DENIED, and defendant’s Motion

1

for an Order Affirming the Decision of the Commissioner [Doc.
#33] is GRANTED.
I.

PROCEDURAL HISTORY1
Plaintiff filed an application for DIB on September 8,

2014,2 alleging disability beginning January 6, 2004, when
plaintiff “slipped off a truck at work and twisted his right
knee.” Doc. #27-2 at 1; see Certified Transcript of the
Administrative Record, Doc. #17 and attachments, compiled on May
13, 2018, (hereinafter “Tr.”) at 262-265. Plaintiff’s
application was denied initially on October 1, 2014, see Tr.
102-111, and upon reconsideration on January 14, 2015, see Tr.
112-122.
On August 11, 2016, plaintiff, represented by Attorney
Christopher W. Dilworth,3 appeared and testified before
Administrative Law Judge (“ALJ”) Matthew Kuperstein. See Tr. 61-

Plaintiff submitted a statement of material facts with his
motion to reverse or remand. See Doc. #27-2. “The Commissioner
adopt[ed] Plaintiff’s recitation of the administrative
proceedings[,]” and provided additional facts with citations to
the administrative record. Doc. #33 at 2; see id. at 2-9. “The
plaintiff recognizes that the [Commissioner’s] evidentiary
references are found in the record according to the citations
provided.” Doc. #35 at 1.
1

The ALJ’s decision lists the application date as August 18,
2014. See Tr. 26. This discrepancy does not affect the Court’s
analysis.
2

Plaintiff is now represented by Attorney Gary W. Huebner. See
Doc. #27-1 at 13.
3

2

82, 85-89. Vocational Expert (“VE”) Edmond J. Calandra testified
telephonically at the hearing. See Tr. 83-85, 90-99. On June 13,
2017, ALJ Martha Bower issued an unfavorable decision pursuant
to HALLEX I-2-8-40, as ALJ Kuperstein was unavailable to issue a
decision.4 See Tr. 26-39. On January 9, 2018, the Appeals Council
denied plaintiff’s request for review, making the ALJ’s June 13,
2017, decision the final decision of the Commissioner. See Tr.
1-7. The case is now ripe for review under 42 U.S.C. §405(g).
II.

STANDARD OF REVIEW
The review of a Social Security disability determination

involves two levels of inquiry. First, the court must decide
whether the Commissioner applied the correct legal principles in
making the determination. See Balsamo v. Chater, 142 F.3d 75, 79
(2d Cir. 1998). Second, the court must decide whether the
determination is supported by substantial evidence. See id.
Substantial evidence is evidence that a reasonable mind would
accept as adequate to support a conclusion; it is more than a
“mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). The reviewing court’s responsibility is to ensure

The Court refers to ALJ Bower when discussing “the ALJ” in this
ruling. When referring to ALJ Kuperstein, the Court does so by
name.
4

3

that a claim has been fairly evaluated by the ALJ. See Grey v.
Heckler, 721 F.2d 41, 46 (2d Cir. 1983).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.”). “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 [his] disability determination
made according to the correct legal principles.” Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984). The ALJ is free to accept or reject the testimony of any
witness, but a “finding that the witness is not credible must
nevertheless be set forth with sufficient specificity to permit
4

intelligible plenary review of the record.” Williams ex rel.
Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988). It is
well established that “an ALJ’s credibility determination is
generally entitled to deference on appeal.” Selian v. Astrue,
708 F.3d 409, 420 (2d Cir. 2013); see also Kessler v. Colvin, 48
F. Supp. 3d 578, 595 (S.D.N.Y. 2014) (“A federal court must
afford great deference to the ALJ’s credibility finding, since
the ALJ had the opportunity to observe the claimant’s demeanor
while the claimant was testifying.” (citation and internal
quotation marks omitted)); Pietrunti v. Dir., Office of Workers’
Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (“Credibility
findings of an ALJ are entitled to great deference and therefore
can be reversed only if they are patently unreasonable.”
(citation and internal quotation marks omitted)).
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct
legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012). “[W]hether there is substantial evidence supporting the
appellant’s view is not the question here; rather, we must
decide whether substantial evidence supports the ALJ’s

5

decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d
Cir. 2013).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
42 U.S.C. §423(a)(1).
To be considered disabled under the Act and therefore
entitled to benefits, plaintiff must demonstrate that he is
unable to work after a date specified “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 of not less than 12
months.” 42 U.S.C. §423(d)(1)(A). Such impairment or impairments
must be “of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work which exists in the national economy.” 42 U.S.C.
§423(d)(2)(A); see also 20 C.F.R. §404.1520(c) (requiring that
the impairment “significantly limit[] ... physical or mental
ability to do basic work activities[]” to be considered
“severe”).5

Some of the Regulations cited in this decision, particularly
those applicable to the review of medical source evidence, were
amended effective March 27, 2017. Those “new regulations apply
only to claims filed on or after March 27, 2017.” Smith v.
5

6

There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §404.1520. In the Second
Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary 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 Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
steps:
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
Comm’r, 731 F. App’x 28, 30 n.1 (2d Cir. 2018) (summary order).
Where a plaintiff’s claim for benefits was filed prior to March
27, 2017, “the Court reviews the ALJ’s decision under the
earlier regulations[.]” Rodriguez v. Colvin, No.
3:15CV1723(DFM), 2018 WL 4204436, at *4 n.6 (D. Conn. Sept. 4,
2018); White v. Comm’r, No. 17CV4524(JS), 2018 WL 4783974, at *4
(E.D.N.Y. Sept. 30, 2018) (“While the Act was amended effective
March 27, 2017, the Court reviews the ALJ’s decision under the
earlier regulations because the Plaintiff’s application was
filed before the new regulations went into effect.” (citation
omitted)).
7

Secretary 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 Secretary
must prove the final one.
Id.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given his residual functional capacity.” Gonzalez ex rel. Guzman
v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243 (2d
Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)); Poupore
v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)).
“Residual functional capacity” (“RFC”) is what a person is still
capable of doing despite limitations resulting from her physical
and mental impairments. See 20 C.F.R. §404.1545(a)(1).
“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant’s educational background, age, and work experience.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).
“[E]ligibility for benefits is to be determined in light of the
fact that the Social Security Act is a remedial statute to be

8

broadly construed and liberally applied.” Id. (citation and
internal quotation marks omitted).
IV.

THE ALJ’S DECSION
Following the above-described five-step evaluation process,

the ALJ concluded that plaintiff was not disabled under the Act.
See Tr. 35. At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity during the relevant
period, between his alleged onset date of January 6, 2004, and
his last insured date of March 31, 2009. See Tr. 28. At step
two, the ALJ found that plaintiff had the severe impairments of
“obesity, degenerative joint disease of the right knee with a
history of knee replacement, and osteoarthritis of the left
knee[.]” Tr. 29.
At step three, the ALJ found that plaintiff’s impairments,
either alone or in combination, did not meet or medically equal
the severity of any of the listed impairments in 20 C.F.R. Pt.
404, Subpt. P, App. 1. See Tr. 29. The ALJ specifically
considered Listing 1.02 (dysfunction of a major weight-bearing
joint due to any cause). See Tr. 29. Before moving on to step
four, the ALJ found plaintiff had the RFC
to perform sedentary work as defined in 20 CFR
404.1567(a) except: The claimant was limited to only
occasional use of foot controls with the right lower
extremity, to only occasional climbing of ramps or
stairs, balancing, and stooping, and to no climbing of
ladders, ropes, or scaffolds, kneeling, crouching, or
crawling.
9

Tr. 29.
At step four, the ALJ concluded that plaintiff is unable to
perform any of his past relevant work. See Tr. 37. At step five,
and after considering the testimony of the VE as well as
plaintiff’s age, education, work experience, and RFC, the ALJ
found “there were jobs that existed in significant numbers in
the national economy that plaintiff could have performed” during
the relevant period. Tr. 37.
V. DISCUSSION
Plaintiff claims that the ALJ erred by:
1. Concluding that plaintiff’s lower right extremity
impairment did not meet Listings 1.02 and/or 1.03, see Doc.
#27-1 at 3-6;
2. Failing to properly apply the treating physician rule to
the May 13, 2016, medical opinion of Dr. Vincent Williams,
see id. at 9-12; and
3. Failing to properly apply SSR 02-1p, relating to the
evaluation of plaintiff’s obesity at step three and
subsequent steps, see id. at 6-9.
Before turning to plaintiff’s arguments, the Court pauses
briefly to address plaintiff’s Workers’ Compensation claim, and
the impact that claim had on the development of plaintiff’s
medical records. Plaintiff alleges that his disability began on
January 6, 2004, when he slipped at work and twisted his right
knee. See Tr. 26; Doc. #27-2 at 1. At the time, plaintiff was
working as a cement truck driver, and needed use of his right
10

leg to operate the truck’s foot pedals continuously. See Tr. 62.
The ALJ expressly acknowledged in her RFC determination that
plaintiff, during the relevant period, “was limited to only
occasional use of foot controls with the right lower extremity,”
meaning that “the demands of the claimant’s past relevant work
exceeded the residual functional capacity.” Tr. 29; Tr. 37.
Plaintiff filed a claim for Worker’s Compensation benefits,
and ultimately settled that claim. See Tr. 257-61. Many of the
medical reports generated during the relevant time frame
provided an assessment of plaintiff’s status -- categorizing him
as temporarily disabled, permanently disabled, or capable of
performing sedentary work -- directly to plaintiff’s worker’s
compensation carrier. See, e.g., 480, 488.
As the ALJ noted repeatedly in her decision: “A statement
by a medical source that you are ‘disabled’ or ‘unable to work’
does not mean that we will determine that you are disabled.” 20
C.F.R. §404.1527(d)(1). SSA Regulations state that the
Commissioner is “responsible for making the determination or
decision about whether you meet the statutory definition of
disability. ... [The SSA] will not give any special significance
to the source of an opinion on issues reserved to the
Commissioner[.]” 20 C.F.R. §§404.1527(d)(1), (d)(3) (emphasis
added).
As ALJ Kuperstein explained to plaintiff at the hearing:
11

I see you did have a Workers’ Compensation matter that
recently settled, but this is independent of that, and,
and Workers’ Compensation, if you can’t do your past
work, then they, they pay you money and so forth, but
this is different. I need to determine if there’s other
work you could have done, even work that didn’t involve,
you know, that you could have done from a seated
position.
Tr. 62 (emphases added). Additionally, as ALJ Bower noted in her
decision, “it is not clear as to whether statements [assessing
plaintiff’s disability status] are referencing the claimant’s
specific past work or all work.” Tr. 36. ALJ Bower, as discussed
below, appropriately considered the reports of plaintiff’s
physicians, even though she did not give deference to their
statements classifying plaintiff as disabled or unable to work.
A. Listings 1.02 and 1.03
In discussing, at step three, whether plaintiff met any of
the listings, the ALJ did only three things. First, she
acknowledged that she was obligated to consider plaintiff’s
obesity under SSR 02-1p in making her determination; second, she
outlined the criteria of Listing 1.02; and third, she concluded:
“The claimant’s impairment does not meet these conditions.” Tr.
29.
Plaintiff argues that the ALJ erred in not finding that
plaintiff met Listing 1.02 and that the ALJ’s single sentence
determination that plaintiff did not meet this listing was
legally insufficient. See Doc. #27-1 at 3-6. Plaintiff further

12

argues that the ALJ should have considered Listing 1.03 in
addition to Listing 1.02. See Doc. 27-1 at 5-6. The Commissioner
argues that the ALJ’s decision should be affirmed because her
reasoning for finding that plaintiff did not meet Listing 1.02
can be clearly gleaned from other portions of her decision, and
those reasons also require a conclusion that the plaintiff did
not meet Listing 1.03. See Doc. #33 at 13-22.
1. Inability to Ambulate Effectively
Listings 1.02 and 1.03 both place the burden on plaintiff
to demonstrate an “inability to ambulate effectively[.]” 20
C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 1.02, 1.03. The
Regulations define this term:
Inability to ambulate effectively means an extreme
limitation
of
the
ability
to
walk;
i.e.,
an
impairment(s) that interferes very seriously with the
individual's ability to independently initiate, sustain,
or complete activities. Ineffective ambulation is
defined generally as having insufficient lower extremity
functioning [] to permit independent ambulation without
the use of a hand-held assistive device(s) that limits
the functioning of both upper extremities. ... To
ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient
distance to be able to carry out activities of daily
living. They must have the ability to travel without
companion assistance to and from a place of employment
or school. Therefore, examples of ineffective ambulation
include, but are not limited to, the inability to walk
without the use of a walker, two crutches or two canes,
the inability to walk a block at a reasonable pace on
rough or uneven surfaces, the inability to use standard
public transportation, the inability to carry out
routine ambulatory activities, such as shopping and
banking, and the inability to climb a few steps at a
reasonable pace with the use of a single hand rail. The
13

ability to walk independently about one's home without
the use of assistive devices does not, in and of itself,
constitute effective ambulation.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 1.00(B)(2)(b).
When discussing plaintiff’s RFC, the ALJ expressly
discussed plaintiff’s ability to ambulate effectively.
Specifically, the ALJ noted that plaintiff: (1) was able to
drive, see Tr. 30; (2) used a cane (singular) from 2015-2017,
and used crutches (plural) intermittently throughout his course
of knee surgeries, see Tr. 30; but (3) “needed only minimal use
of crutches or a cane during the period in question[,]” Tr. 32;
and (4) was “able to ambulate without” using his crutches, Tr.
34. The ALJ also expressly considered plaintiff’s obesity,
stating that plaintiff: “was able to ambulate and carry his
weight” in spite of his “diffuse[]” pain. Tr. 34 (emphasis
added).
Pointing to records documenting his knee pain, joint
stiffness, and (periodic) need to use crutches and/or a cane,
plaintiff argues that he has demonstrated that he is unable to
ambulate effectively. See Doc. #27-1 at 4. While the records
identified by plaintiff, and discussed by the ALJ, document that
there were discrete periods where plaintiff was unable to
ambulate effectively, that alone is not enough to meet
plaintiff’s burden. See 42 U.S.C. §423(d)(1)(A). A disability is
a condition that is “expected to result in death or which has
14

lasted or can be expected to last for a continuous period of not
less than 12 months.” Id. There is substantial evidence to
support the ALJ’s conclusion that plaintiff’s inability to
ambulate effectively between the relevant dates (January 6,
2004, to March 31, 2009) did not, and was not expected to, last
for more than twelve continuous months.
Plaintiff’s medical records document that his inability to
ambulate was intermittent. See Tr. 30, 32-34; see also Doc. #33
at 17-21. For example, multiple records covering the relevant
time period discuss plaintiff’s ability to walk. These records
note plaintiff’s (typically antalgic) gait, and whether or not
he walked with a limp, or that his knee was stable, but they
make no reference to the use of any assistive device. See Tr.
706-07, 714, 720, 732, 734, 766. The physicians who wrote these
reports did make note when plaintiff needed to use crutches,
and, similarly, expressly stated on several occasions that he
was able to ambulate without them. See, e.g., Tr. 479, 469, 725,
762, 759. These records are substantial evidence supporting the
ALJ’s express conclusion that plaintiff did not meet Listing
1.02, and render harmless any error in her failure to consider
whether he met Listing 1.03.
Plaintiff often needed to use a single cane or a knee
brace. See Tr. 760, 698, 711, 749, 935, 770, 487. However, a
claimant is not inherently unable to ambulate effectively when
15

he requires use of an assistive device that does not limit his
use of both upper extremities. See Hopkins v. Colvin, No.
13CV4803(AT)(AJP), 2014 WL 2526837, at *17 (S.D.N.Y. June 5,
2014), report and recommendation adopted, 2014 WL 4392209
(S.D.N.Y. Sept. 5, 2014) (knee brace); Hilliard v. Colvin, No.
13CV1942(AJP), 2013 WL 5863546, at *13 (S.D.N.Y. Oct. 31, 2013)
(“one cane (not two)[]”). It is possible for a claimant to
demonstrate an inability to ambulate effectively without showing
the need to use assistive devices that limit the function of
both upper extremities. See Smith v. Colvin, No. 15CV1166(AWT),
2017 WL 634497, at *6 n.8 (D. Conn. Feb. 16, 2017). Here,
however, the ALJ did not rely solely on plaintiff’s use or nonuse of devices in reaching her conclusion regarding ability to
ambulate effectively. Plaintiff’s own testimony confirmed that
his bedroom had been on the second floor of his home during the
relevant period, evincing his ability to climb stairs. See Tr.
70. As noted by the ALJ, plaintiff is able to drive, and does so
regularly. See Tr. 30, 66. The ALJ also focused on statements
from plaintiff’s physicians that plaintiff had no pain when
resting, had adequate knee flexion, was able to participate in
physical therapy five times a week, and treated with “a home
exercise program [and] activity modulation[.]” Tr. 33-35.
It appears that plaintiff’s condition may have continued to
deteriorate after his last insured date, as evinced by his
16

inability to complete a journey to Vermont in 2013, see Tr. 30,
74, and the relocation of his bedroom to the first floor in
2010, see Tr. 70, because he had “increased difficulty climbing
the stairs[,]” Tr. 30. But the question before this Court is
whether substantial evidence supports the ALJ’s conclusion that
plaintiff was not disabled between January 6, 2004, and March
31, 2009. As to plaintiff’s arguments regarding Listings 1.02
and 1.03, the Court finds that substantial evidence supports the
ALJ’s conclusion that plaintiff failed to meet his burden of
showing that he had an “inability to ambulate effectively[]”
“for a continuous period of not less than 12 months[]” during
the relevant period. 42 U.S.C. §423(d)(1)(A); 20 C.F.R. § Pt.
404, Subpt. P, App. 1, Listing 1.02, 1.03.
2. The ALJ’s Analysis at Step Three
The Commissioner does not contest that the ALJ’s single
sentence statement that plaintiff did not meet Listing 1.02 –standing alone -- provides insufficient support for her
conclusions, but contends that in the ALJ’s “thorough and
detailed decision, the ALJ considered the criteria of the
Listing, and [her] reasoning and analysis for [her] finding at
step three can easily be gleaned from [her] decision.” Doc. #33
at 13. As discussed above, the Court agrees.
“[T]he absence of an express rationale does not prevent us
from upholding the ALJ’s determination regarding appellant’s
17

claimed listed impairments, since portions of the ALJ’s decision
and the evidence before [her] indicate that [her] conclusion was
supported by substantial evidence.” Berry v. Schweiker, 675 F.2d
464, 468 (2d Cir. 1982) (per curiam). Here, “[a]lthough the ALJ
did not explicitly discuss [specific listings], [her] general
conclusion (that [plaintiff] did not meet a listed impairment)
is supported by substantial evidence.” Solis v. Berryhill, 692
F. App’x 46, 48 (2d Cir. 2017) (summary order). The ALJ
discussed plaintiff’s ability to ambulate, a key component of
both listings. The fact that the ALJ elected not to repeat her
analysis both while discussing step three and while discussing
plaintiff’s RFC does not constitute reversible error.
B. The Treating Physician Rule
Plaintiff argues that the ALJ failed to give appropriate
weight, as required by the Treating Physician Rule, to a lower
extremities impairment questionnaire completed by Dr. Williams
in May 2016. See Doc. #27-1 at 9-12; Tr. 1264-71 (hereinafter
the “May 2016 Report”). In the May 2016 Report, Dr. Williams
opined that, since 2006, plaintiff has needed two canes, could
not sustain ambulation, could neither sit nor stand/walk for any
portion of a work day, and needed to elevate his right leg for
20-30 minutes of every hour. See Tr. At 1266-68. Plaintiff also
contends that the ALJ’s explanation of the assignment of weight
was “conclusory” and therefore insufficient. See id. at 10. The
18

Commissioner argues that the ALJ’s assignment of weight to this
report complied with applicable law, and that the ALJ adequately
considered the relevant factors. See Doc. #33 at 24-30.
Plaintiff does not challenge the ALJ’s assignment of weight to
opinions of Dr. Williams dated 2006, 2007, 2008, and 2009,6 but
limits his argument to the May 2016 Report.7
With respect to the nature and severity of a claimant’s
impairment(s), the SSA recognizes a treating physician
rule of deference to the views of the physician who has
engaged in the primary treatment of the claimant[.]
According to this rule, the opinion of a claimant’s
treating physician as to the nature and severity of the
impairment is given controlling weight so long as it is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in the case record.
Unlike the May 2016 Report, these opinions were not detailed
assessments of plaintiff’s functional abilities but rather
conclusory statements contained in Dr. Williams’ treatment notes
that plaintiff was disabled. See Tr. 707, 721, 726, 770, 772,
773, 793, 799, 810. After noting that these conclusions were
“not entitled to any special significant weight[,]” (citing 20
C.F.R. 404.1527(e)(1)-(3)) the ALJ rejected the conclusions
because it was “not clear as to whether [the] statements are
referencing the claimant’s specific past work or all work[,]”
and because the statements were internally inconsistent,
referencing plaintiff’s ability to perform sedentary work, see
Tr. 480, 793, 803, 904, 1001, 1003. Tr. 36. The Court notes that
every report containing these statements was sent directly to
plaintiff’s Workers’ Compensation carrier, which supports the
ALJ’s conclusion that the statements may have only been in
reference to plaintiff’s past work. See Tr. 707, 721, 726, 770,
772, 773, 793, 799, 810.
6

Plaintiff does not challenge the ALJ’s similar assignment of
“little weight” to the disability questionnaires completed by
Dr. Adrienne Parad in March 2015 and September 2016, each of
which stated that plaintiff can only sit or stand for one hour
each during an eight-hour work day, and that the need for such
restrictions began on January 6, 2004. See Tr. 1134, 1430.
7

19

Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (citations
and quotation marks omitted) (emphasis added). The ALJ gave
“little weight” to the May 2016 Report, and did not afford it
controlling weight. See Tr. 36. Dr. Williams, plaintiff’s
treating orthopedic surgeon, is a treating physician under the
applicable regulations. The ALJ acknowledged this, and the
Commissioner does not contest that Dr. Williams’ opinions
regarding the nature and severity of plaintiff’s impairments
would be entitled to controlling weight, if they were wellsupported and not inconsistent with other substantial evidence.
See Doc. #33 at 25.
The ALJ expressly afforded “little weight” to Dr. Williams’
May 2016, report because (1) it was “not ‘not inconsistent’ with
the medical evidence;” and (2) “it was provided several years
after the period in question[]” and was contradicted by other
statements by Dr. Williams that were made during or closer to
the relevant time period. Tr. 36. In evaluating Dr. Williams’
other opinions, in the same section of her analysis, the ALJ
made several observations that provide additional bases for
discounting the May 2016 Report: (1) conclusions regarding
disability are not medical opinions, but rather administrative
findings, properly reserved to the Commissioner; (2) it was
unclear whether Dr. Williams was familiar with the SSA’s

20

“disability evaluation program or the evidence of record[;]” and
(3) some of Dr. Williams’ statements were “internally
inconsistent,” asserting both that plaintiff was totally
disabled and that he was capable of sedentary work. Tr. 36.
The Court finds that the record supports the ALJ’s
assignment of little weight to Dr. Williams’ May 2016 Report,
and the ALJ’s decision not to assign controlling weight to Dr.
Williams’ opinion therein.
The report at issue is a check-box questionnaire. Such
forms are “weak evidence at best[,]” and are “only marginally
useful for purposes of creating a meaningful and reviewable
factual record. Such form reports provide little reason to
afford much weight to a treating physician’s opinion.” Cote v.
Berryhill, No. 3:17CV01843(SALM), 2018 WL 4092068, at *14 (D.
Conn. Aug. 28, 2018) (citations and quotation marks omitted)
(collecting cases). The conclusory statements in the May 2016
Report that plaintiff was disabled are not afforded any special
weight. See 20 C.F.R. §§404.1527(d)(1), (d)(3).
As to the functional limitations described in the May 2016
Report, the ALJ properly concluded that the opinion was
inconsistent with other substantial evidence –- including Dr.
Williams’ own contemporaneous notes. Dr. Williams’ notes, and
the notes of other treating physicians, expressly acknowledge
plaintiff’s ability to walk, even without any assistive devices,
21

see Tr. 706-07, 714, 720, 732, 734, 766, contradicting the May
2016 Report’s conclusion that plaintiff is unable to stand or
walk for any period of time, see Tr. 1267.
Dr. Williams’ notes did not often include restrictions on
plaintiff’s mobility, and when they did, the restrictions were
less restrictive than those suggested in the May 2016 Report.
See Tr. 706 (“Apply ice for 20-30 minutes twice a day as
needed[.]”); Tr. 734 (“His treatment will consist of activity
modulation and NSAID’s[.]”); Tr. 750 (“His treatment will
consist of activity modulation and referral to physical
therapy.”); Tr. 763 (“His treatment will consist of activity
modulation and use of a knee brace[.]”); Tr. 770 (“His treatment
will consist of use of a knee brace and weight loss[.]”); Tr.
780 (“His treatment will consist of activity modulation and use
of a knee brace[.]”); Tr. 786 (“His treatment will consist of a
home exercise program, referral to physical therapy, NSAID’s and
use of a knee brace.”); see also generally Tr. 696-850 (Exhibit
9F, referenced extensively by the ALJ: “Medical Records dated
7/19/2005 to 12/11/2012 from Center for Orthopedics”). As
discussed above, Dr. Williams’ notes also repeatedly and
expressly contemplate plaintiff’s ability to function in some
form of sedentary work environment. See e.g. Tr. 480, 791, 803,
817, 1001. Dr. Williams’ own notes from the relevant time period
also provide no support for the conclusion in the May 2016
22

Report that, as early as 2006, plaintiff needed to elevate his
leg for up to 30 minutes every hour. See Tr. 1268.
Plaintiff argues that the ALJ failed to provide proper
support for discounting this opinion because:
[T]he ALJ rejected Dr. Williams’s questionnaire because
“[a]s of February 2009, Dr. Williams had opined that the
claimant was capable of sedentary work” (R. 36). On
February 27, 2009, Dr. Williams actually wrote, “Mr.
Demars is totally disabled. He is only capable of the
most sedentary type of work, and given his lack of
education or other skills, may not be employable” (R.
480). The plaintiff submits that the ALJ’s reasoning in
support of the weight to assign Dr. Williams’s 2016
opinion does not constitute “good reasons” within the
meaning of the regulation.
Doc. #27-1 at 10. In essence, plaintiff urges the adoption of
the conclusions Dr. Williams reached, conclusions which relied
not on Dr. Williams’ medical knowledge, but his assessment of
plaintiff’s ability to find work “given his lack of education or
other skills[.]” Id. (quoting Tr. 480). These are precisely the
type of conclusions which are not entitled to deference under
sections 404.1527(d)(1) and (d)(3). The SSA, not an individual
doctor, is “responsible for making the determination or decision
about whether you meet the statutory definition of disability.”
20 C.F.R. §404.1527(d)(1). (emphasis added).
The Court further concludes that the ALJ sufficiently
addressed the relevant factors in determining the proper weight
to assign the May 2016 Report.

23

If the treating source’s opinion is not given
controlling weight, the ALJ considers the following
factors when deciding how much weight to give the
opinion: length of treatment relationship, frequency of
examination, nature and extent of the treatment
relationship, relevant evidence used to support the
opinion, consistency of the opinion with the entire
record, and the expertise and specialized knowledge of
the source. See 20 C.F.R. §§404.1527(c)(2)-(6); SSR 962P, 1996 WL 374188, at *2; see also Selian v. Astrue,
708 F.3d 409, 418 (2d Cir. 2013) (per curiam) (setting
forth the factors an ALJ must consider when evaluating
opinion evidence). After considering these factors, the
ALJ must “give good reasons” for the weight he [or she]
affords to the treating source’s opinion.
Berg v. Colvin, No. 3:14CV01042(SALM), 2016 WL 53823, at *4 (D.
Conn. Jan. 5, 2016). The Second Circuit does not require a
“slavish recitation of each and every factor [of 20 C.F.R.
§404.1527(c)] where the ALJ’s reasoning and adherence to the
regulation are clear.” Atwater v. Astrue, 512 F. App’x 67, 70
(2d Cir. 2013).
Plaintiff argues that these factors were insufficiently
discussed, focusing on the length of plaintiff’s treatment
relationship with Dr. Williams, and Dr. Williams’ specialization
as an orthopedic surgeon. The ALJ expressly considered the
“relevant evidence used to support the opinion, consistency of
the opinion with the entire record,” Berg, 2016 WL 53823, at *4,
in giving little weight to Dr. Williams’ May 2016 Report. See
Tr. 36. From the rest of the ALJ’s decision, it is apparent that
she also considered the remaining factors. Indeed, the ALJ
discussed Dr. Williams’ treatment records numerous times,
24

specifically citing to records from throughout the period of his
treatment of plaintiff, in significant detail. See Tr. 32-36.
The ALJ specifically noted that Dr. Williams performed multiple
surgeries on plaintiff, and that he had been treating plaintiff
regularly since 2006. See Tr. 32 (noting that plaintiff treated
with Dr. Williams in 2006); Tr. 34 (noting Dr. Williams
performed surgery on plaintiff in 2009); Tr. 36 (evaluating Dr.
Williams’ opinions and treatment notes from 2006, 2007, 2008,
and 2009).
The record supports the ALJ’s conclusion that the May 2016
Report was inconsistent with the evidence as a whole and not
adequately supported by the record. In so doing, the ALJ
properly considered Dr. Williams’ expertise and treating
relationship with plaintiff, thus applying all of the factors of
20 C.F.R. §404.1527(c)(2)-(6). As discussed above, Dr. Williams’
conclusions that plaintiff was disabled are not entitled to
weight, see 20 C.F.R. §404.1527(d)(1), (d)(3), and those
conclusions were undermined by Dr. Williams’ own statements
indicating that plaintiff could do work other than his past
work, see Tr. 36. The ALJ repeatedly relied, throughout her
ruling, on Dr. Williams’ contemporaneous treatment notes
describing plaintiff’s treatment and functional abilities. See
Tr. 32, 34. As the ALJ also noted, Dr. Williams’ familiarity
with social security regulations was never established, see id.,
25

further weighing against adoption of his conclusory opinions on
matters reserved to the Commissioner, see 20 C.F.R.
§404.1527(c)(6).
Accordingly, the Court concludes that the ALJ’s assignment
of little weight to Dr. Williams’ May 2016 Report was not error.
C. Application of SSR 02-1p
Plaintiff contends the ALJ erred in her application of SSR
02-1p, which provides guidance regarding the impact of obesity
in all five steps of the evaluation process. See SSR 02-1p, 2002
WL 34686281 (S.S.A. Sept. 12, 2002). Plaintiff alleges that the
ALJ’s error impacts her analysis at step three and remaining
steps.8 See Doc. #27-1 at 6-9. The Commissioner contends that the
ALJ’s repeated discussion of plaintiff’s obesity in weighing
medical evidence was legally sufficient, and that “[p]laintiff
does not appear to point to any specific functional limitations
resulting from obesity that are not already included in the
ALJ’s RFC finding.” Doc. #33 at 24; see id. at 22-23.
In considering the combined effects of plaintiff’s
impairments, “obesity can rise to the level of a disabling
impairment under certain circumstances -- generally speaking,
when it increases the severity of coexisting impairments,
particularly those affecting the musculoskeletal, cardiovascular

The ALJ concluded that obesity was one of plaintiff’s severe
impairments at step two. See Tr. 29.
8

26

and respiratory systems.” Crossman v. Astrue, 783 F. Supp. 2d
300, 309 (D. Conn. 2010) (emphasis added). “Obesity alone can
also be a medically equivalent listed impairment if it results
in an inability to ambulate effectively.” Id. (citation and
quotation marks omitted) (emphasis added).
“[T]he ALJ is required to consider the effects of obesity
in combination with other impairments throughout the five-step
evaluation process.” Id. However, the ALJ “will not make
assumptions about the severity or functional effects of obesity
combined with other impairments.” SSR 02-1p, 2002 WL 34686281 at
*6. “Obesity in combination with another impairment may or may
not increase the severity or functional limitations of the other
impairment. We will evaluate each case based on the information
in the case record.” Id.
1. Impact of Obesity on Plaintiff’s RFC
With regard to his RFC, “plaintiff submits that a residual
functional capacity that includes occasional climbing of stairs,
balancing and stooping, is inconsistent with a failed total knee
replacement and morbid obesity.” Doc. #27-1 at 9. Plaintiff also
argues that the ALJ’s discussion of Dr. Saberski’s March 2009
report (Tr. 468-472) is a mischaracterization, requiring remand.
See id. at 8-9.
First, the Court notes that none of the jobs identified by
the VE and relied upon by the ALJ require any climbing of
27

stairs, balancing or stooping. See Tr. 38; Dep’t of Labor,
Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles 135 (1993) (Painter, DOT Code
735.687-018, Climbing, Not Present; Balancing, Not Present;
Stooping, Not Present); id. at 302 (Jewel Stringer, DOT Code
770.687-026, same); id. at 46 (Surveillance-System Monitor, DOT
Code 379.367-010, same); id. at 238 (Grinding-Machine Operator,
Automatic, DOT Code 690.685-194, same); see also id. at ID-2
(defining abbreviations used in volume). Accordingly, any
alleged error regarding plaintiff’s RFC with respect to climbing
stairs, balancing, or stooping would be harmless.
Plaintiff’s argument regarding RFC is also inconsistent
with his own representations regarding his functional abilities
during the period in question. As noted by the ALJ, plaintiff
testified that, while his ability to climb stairs has
deteriorated over time, he was able to climb stairs during the
relevant period. See Tr. 30, 70-71. Even at the time of the
hearing, plaintiff was able to drive and ride in a car, see Tr.
296, feed his cats, see Tr. 293, help with dishes, see Tr. 296,
and go grocery shopping in a seated position (using a scooter)
for over an hour on a regular basis, see Tr. 298.
The ALJ summarized Dr. Saberski’s report as follows:
In March 2009, the claimant treated with Lloyd Saberski,
M.D., and he found that the claimant’s knee strength
appeared to be good. He was able to ambulate and carry
28

his weight but he had pain diffusely. (Exhibit 3F at 2).
He discussed weaning the claimant off his OxyContin.
(Exhibit 4F at 1). He opined that the claimant “had a
work capacity” but did not indicate the work capacity.
(Exhibit 3F at 4).
Tr. 34.9 Plaintiff asserts that Dr. Saberski’s report establishes
that
the peculiar character of Mr. Demars’s morbid obesity
was such that it affected his right lower extremity more
than any other part of his body, in that it restricted
venous and lymphatic in the right leg while he was
sitting ([Tr.] 468-470). This is precisely the type of
evidence for which SSR 02-1p was designed to address.
Doc. #27-1 at 9 (sic). Plaintiff, however, does not challenge
the ALJ’s RFC determination with regard to his ability to sit.10
As discussed above, he challenges the ALJ’s determination that
plaintiff could occasionally climb stairs, balance, or stoop.
With regard to the ALJ’s characterization of Dr. Saberski’s
report, the ALJ is empowered to resolve ambiguities in the
record, and her resolution is entitled to deference.11 See Cage

The reference to Exbibit “4F at 1” in this paragraph appears to
be a typographical error. Tr. 34. Exhibit 4F is comprised of
records prepared by Dr. Williams, not Dr. Saberski. See Tr. 47797. The report to which the ALJ refers is contained in exhibit
3F (Tr. 468-72); Dr. Saberski “discussed weaning the claimant
off his OxyContin[]” on page 3 of that exhibit. Tr. 470.
9

As discussed above, plaintiff did argue that the ALJ erred in
not affording controlling weight to Dr. Williams’ lower
extremities impairment questionnaire, which indicates that
plaintiff can sit for zero hours during an eight-hour work day.
See Doc. #27-1 at 9-12.
10

Dr. Saberski’s report, unlike the report of Dr. Williams, does
not provide functional assessments to which plaintiff asserts
11

29

v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (“[W]e
defer to the Commissioner’s resolution of conflicting
evidence.”); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)
(“Genuine conflicts in the medical evidence are for the
Commissioner to resolve.”).
Plaintiff acknowledges that the ALJ’s statements regarding
the report are factually accurate, with the exception of the
ALJ’s statement that the report reflects that plaintiff “had a
work capacity[.]” Tr. 34. The plaintiff is correct that this is
an error in the ALJ’s decision. While those words do appear in
Dr. Saberski’s report, the quotation by the ALJ does not
accurately reflect the context in which those words appear: “At
this time I do not believe Mr. Demars has a work capacity, given
his pain in the sitting position and his need for OxyContin.
This can change, and I certainly hope it can change with a
successful program.” Tr. 471.
Dr. Saberski’s conclusion that plaintiff could not work is
not entitled to deference. See 20 C.F.R. §404.1527(d)(1),
(d)(3). Furthermore, Dr. Saberski’s conclusions regarding the
relevance of plaintiff’s “need for OxyContin” are undermined by

controlling weight should have been given. Rather, plaintiff
argues that in her determination of plaintiff’s RFC, the ALJ
gave less than a “fair reading of the entire report” because the
ALJ did not come to the conclusion plaintiff urges, that is,
that plaintiff “did not have meaningful use of the knee joint.”
Doc. #27-1 at 8.
30

his own statement elsewhere that plaintiff was “not impaired
from the medication” and his recommendation to take plaintiff
off the medication because it did “not appear to be increasing
function or appreciably decreasing pain.” Tr. 468, 470. These
statements undermine the contention that plaintiff could not
perform any work, as opposed to only his past work as a truck
driver, until he was successfully weaned off his medication.
The ALJ acknowledged plaintiff’s self-reported complaints
of pain as outlined in the report. See Tr. 34. As the ALJ noted,
other physicians opined that plaintiff “had no pain at rest.”
Tr. 33. Plaintiff’s argument that Dr. Saberski’s report could be
interpreted in other ways is unavailing because “whether there
is substantial evidence supporting the appellant’s view is not
the question here; rather, we must decide whether substantial
evidence supports the ALJ’s decision.” Bonet ex rel. T.B., 523
F. App’x at 59. The Court finds that the ALJ did not commit
reversible error in her discussion of Dr. Saberski’s report, nor
in her evaluation of SSR 02-1p in determining plaintiff’s RFC.
2. Impact of Obesity on Weight Assigned to Medical
Evidence Generally
Plaintiff argues that many of his physicians documented
that his obesity had damaging effects on his right knee, and
that the ALJ’s brief evaluation “ignored” some of that analysis
in a way that “falls well short of the SSA policy requiring the

31

ALJ to evaluate obesity and its effects on plaintiff’s
functioning.” Doc. #27-1 at 9; see also id. at 7-8.
As discussed above, The ALJ specifically noted that
plaintiff “was able to ambulate and carry his weight.” Tr. 34.
“The claimant’s weight, including the impact on his ability to
ambulate as well as his other body systems, has been considered
within the functional limitations determined herein. (Exhibit 3F
at 2).” Tr. 35. The records cited to by the ALJ make repeated
mention of plaintiff’s obesity. This includes Dr. Saberski’s
March 2009 report (identified at the hearing as Exhibit 3F),
which stated that plaintiff “is certainly able to ambulate and
carry his 322 pounds[.]” Tr. 469. The ALJ also found plaintiff’s
obesity to be a severe impairment, acknowledging that it
“significantly limits his physical or mental ability to do basic
work activities.” Berry, 675 F.2d at 467 (per curiam); see Tr.
29.
While “[i]t is certainly best practices to explicitly
consider the impact of obesity on Plaintiff’s functional
limitations in light of the other identified impairments, []
courts have upheld an ALJ’s general reference to obesity’s
impact at Step Four.” Holt v. Colvin, No. 16CV01971(VLB), 2018
WL 1293095, at *8 (D. Conn. Mar. 13, 2018) (collecting cases).
Here, the ALJ did more than provide a general reference. She
found plaintiff’s obesity to be a severe impairment, and, as
32

discussed in detail above, specifically evaluated the impact of
plaintiff’s obesity both on his ability to ambulate and other
functional limitations. See Tr. 29, 34-35. The Commissioner is
correct that “[p]laintiff does not appear to point to any
specific functional limitations resulting from obesity that are
not already included in the ALJ’s RFC finding.” Doc. #33 at 24
(emphasis added). Accordingly, the Court concludes that the ALJ
properly applied SSR 02-1p at all steps of her evaluation.
VI.

CONCLUSION
For the reasons set forth herein, plaintiff’s Motion to

Reverse or Remand [Doc. #27] is DENIED, and defendant’s Motion
for an Order Affirming the Decision of the Commissioner [Doc.
#33] is GRANTED.
SO ORDERED at New Haven, Connecticut, this 31st day of
March, 2019.
________/s/_____________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

33