Rivera v. Commissioner of Social Security

Filing 18

ORDER: Plaintiff's motion is GRANTED in part and DENIED in part. The Commissioner's motion is DENIED. For the reasons stated in the attached Memorandum, the matter is remanded for further proceedings. Ordered by Judge Kiyo A. Matsumoto on 8/6/2019. (Mazzurco, Vincent)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------x
:
AIXA RIVERA,
:
:
Plaintiff,
:
ORDER
:
:
17-CV-2856 (KAM)
-against:
:
COMMISSIONER OF SOCIAL SECURITY,
:
:
Defendant.
:
:
-----------------------------------x
KIYO A. MATSUMOTO, United States District Judge:
Pursuant to 42 U.S.C. § 405(g), plaintiff Aixa Rivera
(“plaintiff”) appeals the final decision of the Commissioner of
Social Security (the “Commissioner”) denying her Disability
Insurance Benefits (“DIB”) under Title II of the Social Security
Act (the “Act”).

Before the court are the parties’ respective

cross-motions for judgment on the pleadings.

For the following

reasons, the court GRANTS in part and DENIES in part plaintiff’s
motion for judgment and DENIES defendant’s motion.

The action

is remanded for further proceedings consistent with this Order.
BACKGROUND
I.

Procedural History
Plaintiff applied for DIB on May 14, 2014, alleging

disability since January 18, 2013.

(Tr. 10.)

Plaintiff alleged

disability due to diabetes and injuries to her left shoulder and
back.

(Tr. 72.)

The Social Security Administration (“SSA”)

denied plaintiff’s claim on August 5, 2014.

(Tr. 71, 84.)

In

September 2014, plaintiff requested a hearing before an
Administrative Law Judge, (Tr. 91-92), and on June 14, 2016, a
hearing was held before Administrative Law Judge Ifeoma N.
Iwuamadi (the “ALJ”), (see Tr. 36-70 (hearing transcript)).

In

a decision (the “ALJ Decision,” Tr. 7-25) dated July 28, 2016,
the ALJ found plaintiff not disabled within the meaning of the
Act.

(Tr. 22.)

On August 25, 2016, plaintiff requested that

the Appeals Council review the ALJ Decision.

(Tr. 33-34.)

The

Appeals Council denied review on April 11, 2017, making the
Commissioner’s decision final.

(Tr. 1-6.)

Plaintiff commenced the instant action on May 10,
2017.

(See Complaint, ECF No. 1.)

Pursuant to the briefing

schedule initially set in a scheduling order entered on May 15,
2017, (ECF No. 5), and extended on August 7, 2017, (see August
7, 2017 Docket Order), the parties filed cross-motions for
judgment on the pleadings on April 9, 2018.

(Plaintiff’s Notice

of Motion for Judgment on the Pleadings, ECF No. 12; Defendant’s
Notice of Motion for Judgment on the Pleadings, ECF No. 14.)
Plaintiff and defendant have each submitted a memorandum of law,
but neither party has responded or replied.

(See Plaintiff’s

Memorandum of Law (“Pl. Mem.”), ECF No. 13; Defendant’s
Memorandum of Law (“Def. Mem.”), ECF No. 15.)

Additionally, the

parties have filed a joint stipulation of facts applicable to
2

each party’s motion.
1.)

(“Stip.” or the “stipulation,” ECF No. 15-

Plaintiff requests that the court reverse the ALJ Decision

and remand this action “solely for calculation of benefits,” or
alternatively that the court vacate the ALJ Decision and remand
this action.

(Pl. Mem. 16.)

Defendant contends that the ALJ

did not commit error and the ALJ Decision should be affirmed.
(Def. Mem. 27.)
II.

The ALJ Decision
A.

General Background
The ALJ found the following: (1) plaintiff met the

insured status requirements of the Act through June 30, 2018;
(2) plaintiff had not engaged in substantial gainful activity
since January 18, 2013, the alleged onset date; (3) plaintiff
had the following severe impairments: left shoulder tendinosis,
status post left shoulder arthroscopy, a cervical spine disc
bulge, a lumbar spine disc herniation, left sided cervical
radiculopathy, a partial tear of the left wrist, a left knee
meniscus tear, diabetes, and fibromyalgia; (4) plaintiff did not
have an impairment or combination of impairments that met or
medically equaled the severity of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”; (5)
plaintiff had the residual functional capacity (“RFC”) to
perform sedentary work as defined in 20 C.F.R. § 404.1567(a)
subject to certain additional physical and exertional

3

limitations specified in the ALJ Decision; 1 and (6) plaintiff was
capable of performing her past relevant work as a daycare
supervisor.
B.

(Tr. 12-21.)

RFC Analysis
In analyzing plaintiff’s RFC, the ALJ relied on

diagnostic imaging and other medical tests, and on records of
medical examinations.
1.

Diagnostic Imaging and Other Medical Testing

The ALJ noted that plaintiff injured her back and
shoulder in a motor vehicle accident on January 18, 2013.
14.)

(Tr.

Plaintiff subsequently underwent MRIs of her neck and back

in late March of 2013.

(Id.; Stip. ¶ 5 (citing Tr. 263-64).)

The MRI of her back revealed a small central disc herniation
between the L5 and S1 vertebrae. 2
1

(Tr. 14; accord Stip. ¶ 5

Specifically, the ALJ concluded that plaintiff:
has the residual functional capacity to perform sedentary
work as defined in 20 CFR § 404.1567(a) except that she can
sit for up to 6 hours in an 8-hour workday, stand and/or
walk for up to 6 hours in an 8-hour workday, as well as
lift and/or carry and push and/or pull no more than 10
pounds occasionally. [Plaintiff] cannot operate foot
controls using the left foot. [Plaintiff] can use hand
controls frequently. [Plaintiff] can reach overhead
occasionally, and frequently handle and finger objects.
She can occasionally climb ramps and stairs, but never
climb ladders, ropes or scaffolds. She can occasionally
stoop, but never kneel or crawl. She must avoid
concentrated exposure to dust, odors, fumes and pulmonary
irritants.

(Tr. 13.)
2
"A herniated disk refers to a problem with one of the rubbery cushions
(disks) between the individual bones (vertebrae) that stack up to make [the
human] spine.” Mayo Clinic, Herniated Disk, available at
https://www.mayoclinic.org/diseases-conditions/herniated-disk/symptoms-

4

(citing Tr. 264).)

The MRI of plaintiff’s neck revealed three

disc bulges, specifically at C4-5, C5-6, and C6-7, but did not
reveal any disc herniations or spinal stenosis. 3

(Tr. 14; accord

Stip. ¶ 5 (citing Tr. 263).)
Additionally, a June 2013 MRI of plaintiff’s left
wrist “produced findings consistent with a partial tear and
‘normal intrinsic carpal ligaments with normal carpal alignment
and carpal tunnel.’”

(Tr. 14 (citing Tr. 265-66); see also

Stip. ¶ 8 (“The MRI conducted on June 11, 201[3] 4 showed that
[plaintiff] may have a partial tear of the cartilage in her
wrist, but otherwise normal imaging.” (citing Tr. 265-66)).)
Further, testing performed in connection with Dr. Aric
Hausknecht’s examination of plaintiff in June 2013 “produced
results consistent with left-sided C5-6 radiculopathy.” 5

(Tr.

causes/syc-20354095 (last accessed Aug. 6, 2019). The L-5 and S-1 vertebrae
are located in the lumbar and sacral spine, respectively, or lower back area.
Johns Hopkins Medicine, Lumbar Disk Disease (Herniated Disk), available at
https://www.hopkinsmedicine.org/healthlibrary/conditions/nervous_system_disor
ders/lumbar_disk_disease_herniated_disk_85,P00783 (last accessed Aug. 6,
2019).
3
A bulging disc occurs when the outer lining of an intervertebral disk
breaks down, thereby allowing the nucleus of the ring to bulge out. Johns
Hopkins Medicine, Lumbar Disk Disease (Herniated Disk), available at
https://www.hopkinsmedicine.org/healthlibrary/conditions/nervous_system_disor
ders/lumbar_disk_disease_herniated_disk_85,P00783 (last accessed Aug. 6,
2019). The C4-5, C5-6, and C6-7 vertebrae are located in the cervical spine,
or neck area. Id. “Spinal stenosis is a narrowing of the spaces within
[the] spine, which can put pressure on the nerves that travel through the
spine. Spinal stenosis occurs most often in the lower back and the neck.”
Mayo Clinic, Spinal Stenosis: Symptoms and Causes, available at
https://www.mayoclinic.org/diseases-conditions/spinal-stenosis/symptomscauses/syc-20352961 (last accessed Aug. 6, 2019).
4
The stipulated facts mistakenly dated the MRI test as June 11, 2017.
(Compare Stip. ¶ 8 with Tr. 265.)
5
“Electromyography (EMG) measures muscle response or electrical activity
in response to a nerve’s stimulation of the muscle. The test is used to help

5

14; see also Stip. ¶ 8 (noting plaintiff’s visit to Dr.
Hausknecht).)
Plaintiff also underwent a left knee MRI in November
2014 and a right shoulder MRI in 2016.

(Tr. 17.)

The left knee

MRI showed joint effusion and a complete tear of cartilage in
plaintiff’s knee.
17.)

(Stip. ¶ 8 (citing Tr. 456-57); accord Tr.

The right shoulder MRI revealed various problems with

plaintiff’s right shoulder, including joint effusion,
acromioclavicular arthrosis, rotator cuff tendinosis with a
surface tear of the supraspinatus tendon, and biceps
tenosynovitis with synovitis of the rotator cuff interval. 6
17 (citing Tr. 474, 546).)

Finally, plaintiff underwent an

electrocardiogram, with normal results.
2.

(Tr.

(Tr. 16.)

Medical Examinations, Diagnoses, and Opinions
i.

Dr. Hausknecht

With respect to records of medical examinations,
including the diagnoses and opinions set forth in those records,
the ALJ noted that Dr. Hausknecht examined plaintiff on June 3,

detect neuromuscular abnormalities.” Johns Hopkins Medicine,
Electromyography (EMG), available at
https://www.hopkinsmedicine.org/healthlibrary/test_procedures/neurological/el
ectromyography_92,p07656 (last accessed Aug. 6, 2019). “Radiculopathy
describes a range of symptoms produced by the pinching of a nerve root in the
spinal column.” Johns Hopkins Medicine, Radiculopathy, available at
https://www.hopkinsmedicine.org/healthlibrary/conditions/nervous_system_disor
ders/acute_radiculopathies_134,11 (last accessed Aug. 6, 2019).
6
Although not noted by the ALJ, plaintiff also underwent an MRI of her
left shoulder in April 2013, which revealed tendinosis, but no muscle tears.
(Stip. ¶ 7 (citing Tr. 259-60, 261-62).)

6

2013.

(Tr. 14.)

Dr. Hausknecht diagnosed “cervical derangement

with C3-4 through C6-7 disc bulges, lumbosacral derangement with
L5-S1 disc herniation, left shoulder and wrist arthropathy and
aggravation of underlying degenerative joint disease.
8 (citing Tr. 268); accord Tr. 14.)

(Stip. ¶

Dr. Hausknecht also noted

that plaintiff “exhibited muscle weakness and hypoesthesia,” or
numbness, “to light touch in a left C5-C6-C7 distribution.”
(Stip. ¶ 8 (citing Tr. 267); accord Tr. 14.)

“He recommended

that [p]laintiff continue physical therapy and prescribed
Tramadol for pain as needed.”

(Stip. ¶ 8.)

opined that plaintiff was totally disabled.
ii.

Dr. Hausknecht
(Tr. 14.)

Dr. Wilson

The ALJ also noted that Dr. Stephen Wilson examined
plaintiff.

(Tr. 14.)

The parties note that Dr. Wilson is a

physiatrist and that he examined plaintiff on March 7, 2013.
(Stip. ¶ 3.)

Dr. Wilson diagnosed derangement, myofascial pain

syndrome, and muscle and ligament strains and sprains affecting
plaintiff’s cervical, thoracic, and lumbar spine.
(citing Tr. 248-53).)

(Tr. 14

Dr. Wilson also diagnosed left shoulder

and wrist derangement and opined that plaintiff had a “moderate
partial disability.”

(Id.)

iii. Dr. Han
Next, the ALJ noted that Dr. Ji Han, who the parties
note is an anesthesiologist, examined plaintiff in September
7

2013.

(Tr. 15; Stip. ¶ 12.)

Dr. Han noted, in relevant part,

limited flexion in plaintiff’s cervical and lumbar spine, as
well as muscle tenderness in plaintiff’s trapezius and lumbar
region and muscle spasms in plaintiff’s trapezius.

(Tr. 15

(citing Tr. 277-81); see also Stip. ¶ 12 (discussing Dr. Han’s
findings).)

Dr. Han also noted positive straight leg raise

tests and diminished sensation at plaintiff’s L5 and S1
vertebrae.

(Tr. 15 (citing Tr. 279); accord Stip. ¶ 12.)

Dr.

Han administered an epidural steroid injection, (Tr. 15
(citation omitted); accord Stip. ¶ 12 (citing Tr. 281-84)),
which the parties agree plaintiff tolerated and provided
significant pain relief.

(Stip. ¶ 12.)

The ALJ noted that

plaintiff had also received “chiropractic manipulation and
trigger point injections into the cervical region,” and that her
neck pain “was described as improved.”

(Tr. 15 (citing Tr. 247-

357).)
The ALJ also noted that Dr. Han completed a residual
functional capacity assessment of plaintiff in July of 2014.
(Tr. 18 (citing Tr. 445-55).)

He opined that plaintiff could

sit for up to 6 hours, and stand and/or walk for up to 2 hours,
in each case in an 8-hour day.

(Id. (citing Tr. 448).)

Additionally, Dr. Han opined that plaintiff could lift and/or
carry up to 10 pounds occasionally and push and/or pull no more
than 20 pounds.

(Id. (citing Tr. 448-49).)
8

iv.

Dr. Seldes

Additionally, the ALJ noted that plaintiff had
undergone left shoulder surgery in June of 2013.
(citing Tr. 382-440).)

(Tr. 15

The record indicates that Dr. Richard

Seldes performed the surgery.

(Tr. 377-79.)

In discussing the

procedure, the ALJ observed that records from a June 2013 presurgical examination resulted in normal findings including, in
relevant part, that plaintiff had “no spinal tenderness or
spasm, negative straight leg raising, . . . [and] a normal
gait.”

(Tr. 15 (citing Tr. 400-03).)

The surgery was an

“arthroscopic acromioplasty debridement of a SLAP tear,
debridement of a cuff tear, distal clavicle excision, and a left
shoulder injection.” 7

(Id.; see also Stip. ¶ 9 (discussing

surgery and citing surgical records at Tr. 377-79).)
After plaintiff’s surgery, she underwent a regime of
physical therapy and Celebrex for pain relief and received
follow-up evaluations by Dr. Seldes.
omitted).)

(Tr. 15 (citations

The ALJ specifically noted a December 2013

examination by Dr. Seldes, in which he found some tenderness and
stiffness, and recommended ongoing physical therapy.

(Id.

7
“A SLAP tear is an injury to the labrum of the shoulder, which is the
ring of cartilage that surrounds the socket of the shoulder joint.” American
Academy of Orthopaedic Surgeons, SLAP Tear, available at
https://orthoinfo.aaos.org/en/diseases--conditions/slap-tears/ (last accessed
Aug. 6, 2019).

9

(citing Tr. 369).)

Although not noted by the ALJ, Dr. Seldes’s

examination report also states that he recommended that
plaintiff continue to take Celebrex for pain, and administered a
cortisone injection to plaintiff’s left shoulder.
v.

(Tr. 369.)

Drs. Mikelis and Lattuga

The ALJ further noted evaluations by two physicians
associated with New York Spine Specialists, Drs. Demetrios
Mikelis and Sebastian Lattuga.
21, 23.)

(Tr. 15-16; see also Stip. ¶¶

Dr. Mikelis examined plaintiff in April 2014.

15; see also Stip. ¶ 21 (citing Tr. 362-64).)

(Tr.

Plaintiff

complained of lower back and left shoulder pain, and reported
that epidural injections had not alleviated her back pain.
15; accord Tr. 362.)

(Tr.

Dr. Mikelis found restricted ranges of

motion, tenderness and spasms, and altered sensation in
plaintiff’s lumbar and cervical spine.
363.)

(Tr. 15-16; accord Tr.

Dr. Mikelis also found abnormal reflexes in plaintiff’s

upper and lower extremities.

(Id.)

He diagnosed cervical spine

pain with a nerve root impingement, a lumbar disc herniation,
and left lumbar radiculopathy.

(Tr. 16; accord Tr. 363.)

Plaintiff opted to treat these conditions conservatively.

(Tr.

16; accord Tr. 363-64.)
Dr. Lattuga examined plaintiff in May 2014, and
obtained similar results to those obtained by Dr. Mikelis.
16; see also Tr. 360.)

(Tr.

Like Dr. Mikelis, Dr. Lattuga diagnosed
10

cervical spine pain with nerve root impingement, a lumbar disc
herniation, and left lumbar radiculopathy.
360.)

(Tr. 16; accord Tr.

Additionally, Dr. Lattuga directed plaintiff to “refrain

from any activity that exacerbates symptoms such as heavy
lifting, carrying or bending and follow-up as instructed for a
repeat evaluation.”
vi.

(Tr. 16 (quoting Tr. 361).)
Dr. Fkiaras

Plaintiff underwent an examination by Dr. John
Fkiaras, a state agency consultant, on June 24, 2014.
also Stip. ¶ 24 (citing Tr. 365-68).)

(Id.; see

The ALJ wrote that Dr.

Fkiaras noted that plaintiff had a slow and mildly antalgic
gait, and that her cervical spine had full and pain-free motion
in all directions.

(Tr. 16; accord Tr. 366-67.)

Dr. Fkiaras

also noted limited flexion in plaintiff’s lumbar spine, left
shoulder, and hips, as well as full motion in plaintiff’s right
shoulder.

(Tr. 16; accord Tr. 367.)

Dr. Fkiaras also found

some decreased sensation to light touch of the left upper
extremity and over the left lateral thigh, but no other sensory
deficits.

(Tr. 16-17; accord Tr. 367.)
Dr. Fkiaras diagnosed low back pain, left shoulder

pain, and diabetes.

(Tr. 17; accord Tr. 368.)

Additionally,

Dr. Fkiaras opined that plaintiff “has a moderate limitation
walking, climbing stairs, and standing,” “is restricted from any
lifting, carrying[,] pushing, pulling, squatting, kneeling,
11

crouching, and bending,” “has a moderate limitation sitting
extended periods,” and “has a moderate to severe limitation
reaching with her upper left extremity.”

(Tr. 17 (quoting Tr.

368).)
vi.

Dr. Sure

The ALJ considered treatment records from Dr. Hertzel
Sure, who saw plaintiff several times from 2013 through 2016.
(Tr. 16; see also Stip. ¶¶ 16, 20, 22, 25, 28-30 (citations
omitted); Tr. 475 (exam notes from 2016).)

One of these

records, generated following a January 2014 examination, noted
plaintiff’s history of diabetes and described it as
“uncomplicated.”

(Tr. 16; accord Tr. 482.)

Additionally, Dr.

Sure’s records indicate that plaintiff was obese, but that Dr.
Sure found “no adverse manifestations” arising from plaintiff’s
obesity.

(Tr. 16.)

The ALJ observed that in April 2014,

plaintiff reported “no active complaints” to Dr. Sure, and that
in July 2014, plaintiff’s primary complaint was tooth pain and
her examination results were unremarkable.

(Id.; accord Tr.

489, 493.)
Additionally, the ALJ noted that plaintiff’s December
2014 visit to Dr. Sure resulted in a finding that she was fit to
undergo knee surgery to repair her torn meniscus.
also Stip. ¶ 28 (citing Tr. 499-501).)

(Tr. 17; see

Plaintiff also visited

Dr. Sure in April 2015 and complained of body aches, itchiness,
12

headaches, finger stiffness, insomnia, and inability to
concentrate.

(Tr. 17.)

The April 2015 examination results

were, in part, positive for joint pain, but negative for back
pain and limitation of motion.

(Id.; accord Tr. 502.)

In

connection with plaintiff’s April 2015 visit, Dr. Sure diagnosed
dermatitis, obesity, a meniscal injury, insomnia, diabetes, and
migraine headaches.

(Tr. 17; accord Tr. 503.)

As the ALJ noted, plaintiff returned to Dr. Sure in
May 2015 with complaints of “whole body pain,” headaches, and
finger numbness and tingling and July 2015 with complaints of
swelling in her hands and feet.

(Tr. 17; see also Tr. 508-09

(May 18, 2015 examination notes), Tr. 512-14 (July 19, 2015
examination notes).)

The July 2015 examination notes indicate

that plaintiff suffered from fibromyalgia, but indicate no
neurological deficits, muscle tenderness, or muscle spasm.

(Tr.

17; accord Tr. 512-13.)
Dr. Sure again examined plaintiff in August 2015, and
the examination again produced “negative results.”

(Tr. 17; see

also Tr. 515-16.) In September 2015, plaintiff visited Dr. Sure
complaining of hand pain, and examination results were unchanged
as compared to August 2015.

(Tr. 17; see also Tr. 517-19.)

Plaintiff returned to Dr. Sure in November 2015, reporting
dizziness and blurred vision, and was referred to the emergency
room to rule out a stroke.

(Tr. 17, 528-30; accord Stip. ¶ 30.)
13

Plaintiff was subsequently admitted to Long Island Jewish
Medical Center, where she was diagnosed with palpitations with
near syncope.

(Tr. 17 (citing Tr. 458-73).)

Dr. Sure’s

November 2015 examination notes were unremarkable except for a
gait abnormality.

(Id.; see also Tr. 528-30 (November 17, 2015

examination report).)
Additionally, in March 2016, Dr. Sure examined
plaintiff in the context of a follow-up for fibromyalgia with
body pain.

(Tr. 17.)

Dr. Sure’s treatment notes indicate that

a review of systems was positive for back pain, joint pain,
limitation of motion, and stiffness, but that Dr. Sure’s
examination revealed a normal spinal range of motion and no
muscle tenderness or spasms.
23, 2016 examination notes).)

(Id.; see also Tr. 523-25 (March
The following month, April 2016,

plaintiff returned to Dr. Sure complaining of lower back and
right shoulder pain related to a motor vehicle accident. 8

(Tr.

17; see also Tr. 534-37 (April 3, 2016 examination notes).)

Dr.

Sure diagnosed polyneuropathy, back pain, fibromyalgia, and
right shoulder pain.

(Tr. 17; accord Tr. 536.)

Dr. Sure again

examined plaintiff in May 2016 and found, in relevant part, a
normal range of motion in plaintiff’s spine, and right shoulder

The ALJ wrote that the motor vehicle accident occurred “a year earlier”
relative to the April 2016 examination, (Tr. 17), but the examination notes
indicate that the motor vehicle accident occurred “>1 yr,” or more than one
year, prior to the examination, (Tr. 534).

8

14

tenderness with restricted range of motion.

(Tr. 17-18; see

also Tr. 475-78 (May 1, 2016 examination report).)
3.

The ALJ’s Determination

The ALJ concluded that plaintiff’s medically
determinable impairments could reasonably be expected to cause
plaintiff’s alleged symptoms, although the ALJ did not identify
the symptoms and limitations that plaintiff alleged.

(Tr. 18.)

The ALJ further concluded that plaintiff’s “statements
concerning the intensity, persistence and limiting effects of
[her] symptoms are not entirely consistent with the medical
evidence and other evidence in the record,” but did not identify
or summarize the relevant statements by plaintiff.

(Id.)

The ALJ identified medical records relevant to
plaintiff’s various impairments, including her neck and lower
back impairments, right and left shoulder impairments, left knee
and wrist impairments, diabetes, obesity, asthma, and
fibromyalgia.

(See Tr. 18-20 (citations omitted).)

The ALJ

also noted plaintiff’s treatment, including her arthroscopic
surgery, trigger point and steroid injection therapy, physical
therapy, and chiropractic manipulation.

(Tr. 20.)

Additionally, the ALJ noted plaintiff’s activities of daily
living, including her ability to perform “at least some ordinary
chores, such as cooking and shopping, once or twice a week,” as

15

well as plaintiff’s independence in hygiene and self-care, and
ability to engage in sedentary recreational activities.

(Id.)

The ALJ also weighed medical opinion evidence and set
forth her reasons for the weight accorded to the relevant
opinions.

Dr. Hausknecht’s opinion was given “very limited

weight” because it was “based more on [plaintiff]’s selfdescription of her symptoms rather than the objective findings
reached on a single physical examination or results of
diagnostic testing.”

(Id.)

Additionally, Dr. Hausknecht’s

opinion was reached prior to plaintiff’s June 2013 shoulder
surgery and her receipt of other forms of treatment, including
chiropractic manipulation, physical therapy, and injections, all
of which improved plaintiff’s functioning.

(Id.)

Dr. Wilson’s opinion that plaintiff had a moderate
partial disability was given “some weight,” because it was
“somewhat vague,” used terms “that are not employed by the
Commissioner,” and was “based on only two physical examinations
performed in 2013,” but was “generally consistent with the
evidence of record.”

(Id.)

Additionally, Dr. Fkiaras’s opinion

was given no weight because it was “too restrictive given the
overall evidentiary record.”

(Id.)

The ALJ specifically noted

that Dr. Fkiaras opined that plaintiff could not lift, carry,
push, pull, or squat, but Dr. Han concluded otherwise a month
later.

(Id.)

The ALJ also noted an internal inconsistency, as
16

Dr. Fkiaras wrote that plaintiff could perform most ordinary
household chores other than cleaning and laundry, and that she
could independently clean herself and complete self-care.

(Id.)

Dr. Han’s opinion was given “significant weight . . .
with the exception that the [ALJ] f[ound] that it [wa]s not
restrictive enough, particularly in light of [plaintiff’s]
shoulder impairment and radiculopathy impairment.”

(Tr. 21.)

Additionally, Dr. Lattuga’s opinion that plaintiff was to
refrain from heavy physical exertion was given “significant
weight” because of its consistency with the evidence.

(Id.)

Based on the foregoing evidence and weighing of expert
opinions, the ALJ concluded that plaintiff had the RFC to
perform “sedentary work as defined in 20 CFR § 404.1567(a)
except that she can sit for up to 6 hours in an 8-hour workday,
stand and/or walk for up to 6 hours in an 8-hour workday, as
well as lift and/or carry and push and/or pull no more than 10
pounds occasionally.

[Plaintiff] cannot operate foot controls

using the left foot.

[Plaintiff] can use hand controls

frequently.

[Plaintiff] can reach overhead occasionally, and

frequently handle and finger objects.

She can occasionally

climb ramps and stairs, but never climb ladders, ropes or
scaffolds.

She can occasionally stoop, but never kneel or

17

crawl.

She must avoid concentrated exposure to dust, odors,

fumes and pulmonary irritants.” 9
C.

(Tr. 13.)

Past Relevant Work Analysis
The ALJ also noted plaintiff’s past relevant work with

reference to the U.S. Department of Labor’s Dictionary of
Occupational Titles (“DOT”).

(Tr. 21.)

As relevant to the

instant appeal, the ALJ wrote that plaintiff “ha[d] . . . worked
as a daycare supervisor which is sedentary work under DOT
092.167-010, but was actually performed at a medium level of
exertion by [plaintiff],” and that the work “is a skilled
occupation” with a specific vocational preparation of 7.

(Id.)

Plaintiff, however, testified that she worked as a
“family worker,” not as a “daycare supervisor.”
50.)

(Tr. 43-47, 49-

The conclusion that plaintiff’s “family worker” employment

was employment as a “daycare supervisor” is based on the
testimony of vocational expert Bruce Martin (“VE Martin”), who
testified that he was “able to classify the [past work]
positions that [plaintiff] testified to,” and that those jobs
were “psychiatric aide,” “retail manager,” “daycare supervisor,”

Although the ALJ gave “significant weight” to Dr. Han’s opinion,
including his opinion that plaintiff could stand and/or walk for up to two
hours in an eight-hour day (Tr. 18 (citing Tr. 448)), the ALJ concluded that
plaintiff could stand and/or walk for up to six hours in an 8-hour day.
(Id.) It appears to the court that this in fact was a typographical error
rather than a departure from Dr. Han’s opinion requiring an explanation of
good reasons.
9

18

and “teacher’s aide,” in each case as defined in the DOT.

(Tr.

62.)
In addition to providing testimony regarding
plaintiff’s past employment, VE Martin testified that a
hypothetical individual of plaintiff’s age and education and
with additional limitations as set forth by the ALJ could work
as a daycare supervisor.

(Tr. 62-63.)

VE Martin also testified

that the hypothetical individual with which he was presented
could work as a “document preparer,” “telephone quotation
clerk,” and “inspector,” in each case as defined in the DOT.
(Tr. 63-64.)

Based on VE Martin’s testimony, the ALJ concluded

that plaintiff could return to past relevant work as a daycare
supervisor.
III.

Plaintiff’s Contentions
On appeal, plaintiff asserts that substantial evidence

does not support the ALJ’s RFC determination.

(Pl. Mem. 13-16.)

Additionally, plaintiff asserts that the ALJ erred in evaluating
plaintiff’s past relevant work.
A.

(Id. at 11-13.)

Lack of Substantial Evidence for the RFC Determination
Plaintiff asserts that although “[t]he ALJ concluded

that . . . plaintiff can do essentially a full range of
sedentary activities[,] [t]he evidence suggests otherwise,” (id.
at 13), specifically, that “plaintiff is not able to engage in

19

regular sedentary work,” (id. at 16 (emphasis in quoted
material)).
First, plaintiff refers to, but does not cite,
“objective tests – MRIs, EMG – [which] show extensive disc
disease in the cervical and lumbar spine; substantial damage to
the left knee, the wrists, and the left shoulder; and
significant neurological deficits.”

(Id. at 13.)

Plaintiff

also refers to, but does not cite, clinical examinations showing
“spasm; limited motion of the neck and back; diminished strength
and sensation of the extremities; abnormal reflexes of the
extremities.”

(Id.)

Plaintiff asserts, in a conclusory manner

and without explanation, that the foregoing objective tests and
examination findings, which plaintiff does not expressly
identify with record citations, are “highly supportive of the
assessment of Dr. Fkiaras, the Commissioner’s consulting
examiner.”

(Id. at 14.)

Plaintiff also asserts that the

foregoing objective findings support Dr. Hausknecht’s opinion
that plaintiff is “totally disabled.”

(Id.)

Second, plaintiff takes issue with the ALJ’s treatment
of Dr. Han’s opinion that plaintiff can sit for six hours and
stand and/or walk for two hours, in each case in an eight-hour
day, and can lift and/or carry ten pounds.

(See id.)

Plaintiff

contends that the foregoing limitations are “not consistent with
[Dr. Han’s] treatment records.”

(Id.)
20

In support of her

contention, plaintiff notes that Dr. Han reported that plaintiff
“complain[ed] of low-back and left-leg pain – sharp, shooting,
and throbbing, accompanied by intermittent numbness and
tingling.”

(Id.)

Plaintiff also quotes Dr. Han’s notations

that plaintiff’s “[p]ain is worse with prolonged sitting,
standing, and walking,” that plaintiff “achieved ‘minimal relief
with rest and medication,’” and that plaintiff “has ‘difficulty
with everyday activities.’”

(Id. (quoting Tr. 452).)

Plaintiff also asserts that Dr. Han’s opinion fails to
address “postural restrictions that may interfere with regular
sedentary employment, e.g., the need periodically to change
positions from sitting to standing because of pain or
discomfort.”

(Id.)

Nor, according to plaintiff, does Dr. Han’s

opinion address plaintiff’s ability to “do sedentary work each
and every day, on a sustained basis.”

(Id.)

Third, plaintiff takes issue with the ALJ’s analysis
of plaintiff’s activities of daily living.

According to

plaintiff, in “[s]eeking to find support for h[er] position,”
i.e., her RFC determination, “the ALJ cite[d] plaintiff’s
ability to perform ‘at least some ordinary chores’ such as
cooking, shopping, attending to personal hygiene, watching
television, listening to [the] radio, and reading.”
15.)

(Id. at

Plaintiff notes that she testified that her husband and

daughter generally do chores and assist plaintiff with other
21

activities of daily living.

(Id.)

Moreover, plaintiff contends

that “a person’s ability to do sporadic household chores–at her
own pace, and in the manner and at the times of her choosing–is
hardly the measure of a capacity for regular, sustained
employment.”
B.

(Id. (citations omitted).)

Lack of Substantial Evidence for Past Relevant Work
Determination
Plaintiff asserts that the ALJ erred in concluding

that plaintiff’s past relevant work included time as a “daycare
supervisor” and that plaintiff could return to this work.
at 11-13.)

(Id.

According to plaintiff, she testified that she was a

“family worker,” but VE Martin “insisted that the job was in
fact ‘daycare supervisor.’”

(Id. at 11.)

Plaintiff contends

that the conclusion that she was a daycare supervisor is
incorrect.
In support of the foregoing contention, plaintiff
observes the DOT entry to which the VE cited “relates to a
supervisor who manages and directs the full gamut of daycare
operations” and “is a skilled position, with a[] . . . specific
vocational preparation . . . of 7, requiring 2-4 years of
training.”

(Id.)

Plaintiff notes that she, however, “had no

such training and no such duties,” as she merely “visited homebased daycare centers to ascertain compliance with . . . rules
and regulations, to check menus, to assist with various chores,”

22

but “was not involved in matters of curriculum and teaching.”
(Id. (emphasis in quoted material).)

Thus, plaintiff asserts,

she was “an inspector and a worker, not a manager or director.”
(Id. at 11-12.)
Plaintiff also asserts that, if her “family work” was
performed at the medium or light level, then she would be
precluded performing her past jobs in light of her RFC to
perform sedentary work only.

(Id. at 12-13.)

Therefore,

plaintiff contends, she met her burden at step four of the fivestep sequential evaluation to show that she is incapable of
performing past relevant work, and should be found disabled
absent evidence of the existence of other jobs that plaintiff
could perform and which exist in substantial numbers in the
economy.

(Id. at 13.)
Finally, plaintiff notes that she reached age 50 on

June 30, 2016, prior to the date on which the ALJ Decision was
issued.

(Id.)

Plaintiff thus became a “person ‘closely

approaching advanced age’” within the meaning of 20 C.F.R.
404.1563(d) as of that date.

(Id.)

Plaintiff contends that her

“medical-vocational” profile would place her squarely within the
ambit of 20 C.F.R., Part 404, Subpart P, Appendix 2, Rule 201.14
(Table 1) as of her 50th birthday, and that a finding that

23

plaintiff is disabled is therefore mandatory even if plaintiff
is capable of sedentary work. 10
IV.

(Id.)

Defendant’s Contentions
A.

Substantial Evidence Supports the ALJ’s RFC
Determination
Defendant counters that substantial evidence supports

the ALJ’s RFC determination.

(Def. Mem. 16-23.)

With respect

to the ALJ’s conclusion that plaintiff can sit, stand and walk
up to six hours per eight-hour workday, defendant notes that
“Dr. Han and Dr. Sure repeatedly found that [p]laintiff had a
normal gait and showed no difficulties walking.”

(Id. at 16

(citing Tr. 278, 286, 453, 476, 479, 480, 485, 487, 494, 496,
497, 500, 503).)

Defendant also notes that Dr. Sure “counseled

plaintiff about the importance of taking a brisk thirty-minute
walk every day.”

(Id. at 16-17 (citing Tr. 530).)

Additionally, the record “contains repeated findings of . . .
either slightly reduced and/or full motor strength in
[p]laintiff’s upper and lower extremities.” 11

(Id. at 17 (citing

Tr. 249, 278-79, 287, 360, 367-68, 454, 476, 482, 485, 487).)
The rule to which plaintiff cites provides that a finding of disability
is mandatory where a claimant is “closely approaching advanced age,” his or
her education is that of a “[h]igh school graduate or more” and “does not
provide for direct entry into skilled work,” and his or her previous work
experience is “skilled or semiskilled” but his or her “skills [are] not
transferable.”
10

Defendant also notes plaintiff’s “negative straight leg raises,” (Def.
Mem. 17 (citation omitted)), but the straight leg raise test is used to test
for nerve impingement in the lower back, not to test a patient’s ability to
walk. See, e.g., Bradley J. Sandella, How Is the Straight Leg Raise Test

11

24

Defendant further asserts that the consulting
examiner, Dr. Fkiaras, wrote that plaintiff “needed no help
getting on and off the examination table, used no assistive
devices, and could rise from her chair without any difficulty.”
(Id. (citing Tr. 366).)

Additionally, although no medical

opinion specifically states that plaintiff can walk for six
hours per day, “the ALJ’s determination need not perfectly
correspond with any medical source opinion cited in her
decision; instead, the ALJ makes her RFC determination based on
the record as a whole.”

(Id. (citing Matta v. Astrue, 508 F.

App’x 53, 56 (2d Cir. 2013)).)
Defendant also cites evidence in the record that
defendant contends supports the ALJ’s conclusion that plaintiff
could lift, carry, push and pull up to ten pounds occasionally,
could reach occasionally, and could frequently handle and finger
objects.

(See id. at 17-18.)

Specifically, defendant cites

“repeated findings that [p]laintiff had full strength or near
full[] strength in her upper extremities,” (id. at 17 (citing
Tr. 279, 287, 360, 367-68, 454, 476, 482, 485, 487)), “including
[Dr. Fkiaras’s] specific[] observation that [p]laintiff’s hand

Performed in the Evaluation of Low Back Pain (LBP)?, Medscape, available at
https://www.medscape.com/answers/2092651-119397/how-is-the-straight-legraise-test-performed-in-the-evaluation-of-low-back-pain-lbp (last accessed
Aug. 6, 2019).

25

and finger dexterity were intact and that she had full bilateral
grip strength,” (id. (citing Tr. 368)).
Defendant also notes that plaintiff’s neck MRI showed
only mild disc bulging but no herniations, stenosis, or cord
lesions, (id. at 17-18 (citing Tr. 263)), and plaintiff’s back
MRI showed only a small central disc herniation, no lateral disc
herniation, no spinal stenosis, and no bony lesions, (id. at 18
(citing Tr. 264)).

Defendant further notes that after

undergoing left shoulder surgery in June 2013, plaintiff had
only mild-to-moderate pain in her left shoulder and that
plaintiff herself stated that she could lift up to 10-15 pounds.
(Id. (citing Tr. 371 (record of post-surgery follow-up visit to
Dr. Seldes regarding left shoulder surgery) and Tr. 204
(plaintiff’s function report)).)
Defendant further contends that the ALJ properly
weighed opinion evidence regarding plaintiff’s RFC.
22.)

(Id. at 18-

According to defendant, Dr. Han’s opinion regarding

plaintiff’s functional limitations, which the ALJ gave
“significant weight,” is consistent with the foregoing evidence
regarding plaintiff’s gait, straight leg test results, and motor
strength.

(Id. at 19 (citations omitted).)

Additionally, to

the extent Dr. Han’s opinion was not consistent with evidence
regarding plaintiff’s shoulder impairment and resulting
limitations, the ALJ “adjusted the RFC accordingly.”
26

(Id.

(citing Tr. 21).)

Defendant further contends that the ALJ

properly weighed Dr. Lattuga’s opinion that plaintiff should
refrain from heavy lifting, carrying, or bending because this
opinion was consistent with the overall evidence, and despite
evidence indicating strength in plaintiff’s extremities and
reports that plaintiff’s back pain was alleviated through an
epidural, the record contains significant evidence that
plaintiff’s condition was exacerbated by heavy exertion.
at 19-20 (citations omitted).)

(Id.

Defendant also notes that Dr.

Lattuga’s opinion is consistent with the limitations set forth
in Dr. Han’s opinion.

(Id. at 20 (citations omitted).)

Defendant further contends that the ALJ properly
weighed Dr. Wilson’s opinion that plaintiff has a “moderate
partial disability.”

(Id. (citing Tr. 20); see also Tr. 248-52

(Dr. Wilson’s opinion).)

According to defendant, Dr. Wilson’s

conclusion that plaintiff has a moderate partial disability is
“vague,” employs the concept of “partial disability,” which is
not recognized under the Act, and consequently “provides little
helpful information about the functional limitations, if any”
resulting from plaintiff’s impairments.

(Def. Mem. 20.)

Additionally, as the ALJ noted, the treatment relationship
between Dr. Wilson and plaintiff was limited, as Dr. Wilson
examined plaintiff on only two occasions.

(Id.)

Further, the

ALJ noted that Dr. Wilson’s examination findings were consistent
27

with other evidence, including later treatment records.

(Id.)

In particular, Dr. Wilson noted reduced to full muscle strength
in plaintiff’s upper and lower extremities, as well as limited
range of motion in her neck (cervical spine) and left
extremities.

(Id. at 20-21 (citing Tr. 250-51).)

Additionally, defendant argues that the ALJ did not
err in affording “very little weight” to Dr. Hausknecht’s
opinion and “no weight” to Dr. Fkiaras’s opinion.
22.)

(Id. at 21-

With respect to Dr. Hausknecht, defendant notes that his

statement that plaintiff is “totally disabled” is an opinion on
an issue reserved to the Commissioner and is not entitled to any
special deference.

(Id. at 21 (citing 20 C.F.R. § 404.1527 and

Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)).)

Defendant

also asserts that the ALJ “properly noted that Dr. Hausknecht
based his opinion on a single examination on June 3, 2013, prior
to [p]laintiff’s corrective shoulder surgery later tha[t]
month,” and prior to plaintiff’s subsequent steroid injections,
physical therapy, and chiropractic treatment.
20, 267, 286-87, 336-42).)

(Id. (citing Tr.

Additionally, defendant notes that

Dr. Seldes’s treatment records indicate that plaintiff’s left
shoulder range of motion increased and she reported
“significant” lower back relief and improved activities of daily
living and function after receiving injections.

28

(Id. (citing

Tr. 373-74 (range of motion), Tr. 285 (lower back relief and
improved daily living).)
With respect to Dr. Fkiaras, defendant asserts that
the “extreme limitations set forth in Dr. Fkiaras’s opinion,
such as no lifting, pulling, pushing, or carrying were not
consistent with the overall evidence” in the record, and is
inconsistent with Dr. Han’s opinion, which was rendered only one
month later.

(Id. at 21-22 (citing Tr. 365-68, 448-49 (Dr.

Fkiaras and Dr. Han opinions)).)

Further, although Dr. Fkiaras

opined that plaintiff could do no lifting or carrying, plaintiff
herself reported that she could carry up to 10-15 pounds, and
clinical evidence supports this report.
204).)

(Id. at 21 (citing Tr.

Defendant also asserts that Dr. Han was “a treating

physician who examined [p]laintiff multiple times,” and that
consequently Dr. Han’s opinion is “properly given great
consideration,” including relative to Dr. Fkiaras’s opinion.
(Id. at 22 (citing Pl. Mem. 14 and 20 C.F.R § 404.1527(c)).)
B.

Substantial Evidence Supports the ALJ’s Past Relevant
Work Determination
Defendant also asserts that the ALJ’s inquiry

regarding plaintiff’s past relevant work at step four was
proper.

Defendant notes that an ALJ may consult with a

vocational expert at step four so long as the ALJ does so in
accordance with 20 C.F.R. § 404.1560(b)(2) and the assumptions

29

upon which the expert bases his or her opinion are supported by
substantial evidence.

(Id. at 24 (citing, in relevant part,

McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014)).)
According to defendant, “[h]ere, the ALJ asked . . .
VE [Martin] to classify [p]laintiff’s prior work in accordance
with the [DOT],” and VE Martin “testified that [p]laintiff’s
past work as a family worker would be classified as a daycare
supervisor, which is DOT number 092.167-010.”

(Id.)

The ALJ

further testified that plaintiff actually performed that work at
the medium exertional level, although the job is generally
performed as sedentary work.

(Id. (citing Tr. 62).)

Additionally, the ALJ presented a hypothetical person
to VE Martin and asked VE Martin to opine as to whether the
hypothetical person could work as a daycare supervisor as that
work is generally performed in the national economy.
(citing Tr. 64).)

(Id.

Defendant contends that the hypothetical that

the ALJ presented the VE is more restrictive than the RFC set
forth in the ALJ’s decision, because the hypothetical “did not
include the finding that [p]laintiff could stand/walk for six
hours out of an eight-hour day, and it included a finding that
plaintiff could never reach overhead, as opposed to the ultimate
RFC finding that [p]laintiff could occasionally reach overhead.”
(Id. at 24-25 (citing Tr. 13, 62-64).).

30

Defendant also points to statements and testimony by
plaintiff that defendant contends support the ALJ’s conclusion
that plaintiff worked as a daycare supervisor.

(Id. at 25-26.)

Specifically, defendant contends that “[p]laintiff stated on
three occasions that [her past work] was a supervisory position,
specifically stating that she supervised 12 family daycares.”
(Id. at 25 (citing Tr. 48, 68, 236).)

Additionally, defendant

contends that plaintiff’s description of her job duties as a
“family worker” is consistent with the DOT’s description of the
“daycare supervisor” position.
omitted).)

(Id. at 25-26 (citations

Defendant points to the following excerpt from

plaintiff’s testimony before the ALJ, in which plaintiff
describes her work as a family worker:
I had to go [to the daycare facilities] and
visit, make sure . . . they had everything to
code, and then we allowed them to open. I made
sure they had their sections for the children
that were properly done, and had the proper
things in place . . . Then I used to go maybe two
or three times a week to their family daycares
just to check. I used to sit and make sure their
menus were good, and that the children were okay,
and that they were following protocol.
(Id. (quoting Tr. 46).)
Additionally, plaintiff “clarified at the hearing”
that on her visits, she provided daycare facilities with
suggestions about their work, including regarding menu planning,
and that although she did not actually hire or fire employees,

31

she prepared the necessary paperwork.

(Id. at 26 (citing Tr.

42, 68).)
Finally, defendant asserts that even if plaintiff’s
position was not classified properly, the VE identified three
other positions that the hypothetical person could perform.
(Id. (citing Tr. 63-64).)

Thus, according to defendant,

plaintiff is capable of performing jobs that exist in the
national economy and is not disabled.

(Id.)

DISCUSSION
I.

Applicable Law and Legal Standards
A.

Judicial Review Generally
A court’s review of the Commissioner’s final decision

as to a plaintiff’s disability is not de novo, and the court can
enter a judgment affirming, modifying or reversing the
Commissioner’s final decision with or without remanding the
case.

Filicomo v. Chater, 944 F. Supp. 165, 168 (E.D.N.Y.

1996); see also 42 U.S.C. § 405(g).
B.

The Substantial Evidence Standard
A district court’s review of the Commissioner’s final

decision is limited to determining whether the Commissioner’s
conclusions were based on the correct legal standard and were
supported by substantial evidence in the record.

Talavera v.

Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing Lamay v. Comm’r
of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)).
32

Substantial

evidence means more than a mere scintilla; it means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.

Talavera, 697 F.3d at 151 (citing

Richardson v. Perales, 402 U.S. 389, 401 (1971)).

In

determining whether the Commissioner’s findings are supported by
substantial evidence, “the reviewing court is required to
examine the entire record, including contradictory evidence and
evidence from which conflicting inferences can be drawn.”
Talavera, 697 F.3d 145, 151; see also Mongeur v. Heckler, 722
F.3d 1033, 1038 (2d Cir. 1983).
If the court finds that there is substantial evidence
supporting the Commissioner’s decision, the decision must be
upheld even if there is also substantial evidence for the
plaintiff’s position.

See Alston v. Sullivan, 904 F.2d 122, 126

(2d Cir. 1990); see also DeChirico v. Callahan, 134 F.3d 1177,
1182 (2d Cir. 1998) (affirming Commissioner’s decision where
substantial evidence supported both sides). The rule that the
Commissioner’s findings of fact, as well as the inferences and
conclusions to be drawn from those findings, are conclusive
applies even in those instances where a reviewing court’s
independent analysis of the evidence may differ from the
Commissioner’s analysis.

See Rutherford v. Schweiker, 685 F.2d

60, 62 (2d Cir. 1982)

33

C.

Five-Step Sequential Evaluation Process
To be eligible for disability benefits under 42 U.S.C.

§ 423, the claimant must establish his “inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has
lasted or can be expected to last for a continuous period of not
less than twelve months” and the impairment 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 kind of substantial gainful work which exists in
the national economy.”

42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A);

see also Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).
Additionally, to qualify for disability benefits, “an applicant
must be insured for disability insurance benefits” at the time
of onset.

Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989)

(quoting 42 U.S.C. §§ 423(a)(1)(A), 423(c)(1)).
The Commissioner’s regulations prescribe the following
five-step framework for evaluating disability claims:
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
34

impairment, the Commissioner will consider him
[per se] disabled . . . . Assuming the claimant
does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe
impairment, he has residual functional capacity
to perform his past work. Finally, if the
claimant is unable to perform his past work, the
burden of proof shifts to the Commissioner to
determine whether there is other work which the
claimant could perform.
Talavera, 697 F.3d at 151; see also 20 C.F.R. §§ 404.1520(a),
416.920(a).
II.

Application
A.

The ALJ’s RFC Determination
Between step three and step four of the five-step

disability evaluation process, the ALJ must determine a
claimant’s residual functional capacity, or RFC.

A claimant’s

RFC is based on all the relevant evidence of record, which
includes the claimant’s credible testimony regarding the
limiting effects of his impairments, both those deemed severe
and non-severe at step two, objective medical evidence
documenting signs and symptoms of impairments and functional
limitations, and medical opinion from treating and consulting
sources regarding the claimant’s ability to function.
§ 404.1545.

20 C.F.R.

The RFC assessment also considers exertional and

non-exertional work functions.

By definition, sitting,

standing, walking, lifting, carrying, pushing and pulling, are
all deemed “exertional” functions.

20 C.F.R. § 404.1569a(b).

All other functions are deemed “non-exertional” functions.
35

Pain, and other subjective symptoms related to a medically
determinable impairment (e.g., fatigue), may affect both the
exertional and non-exertional functions of work, and are
factored into the residual functional capacity assessment.

20

C.F.R. § 404.1529.
The ALJ determined that plaintiff had the RFC to
perform sedentary work as defined in 20 C.F.R. § 404.1567(a)
subject to certain additional physical and exertional
limitations.

(Tr. 13.)

As set forth in the Code of Federal

Regulations (“CFR”), sedentary work
involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles
like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and
standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and
standing are required occasionally and other
sedentary criteria are met.
20 C.F.R. § 404.1567(a).
With respect to plaintiff’s additional limitations,
the ALJ determined that plaintiff can sit for up to six hours in
an eight-hour workday; can stand and/or walk for up to six hours
in an eight-hour workday; can lift and/or carry and push and/or
pull no more than 10 pounds occasionally; cannot operate foot
controls using the left foot; can handle and finger objects and
use hand controls frequently; can occasionally reach overhead,
stoop, and climb ramps and stairs; can never kneel, crawl, or
36

climb ladders, ropes or scaffolds; and must avoid concentrated
exposure to dust, odors, fumes and pulmonary irritants.

(Tr.

13.)
Here, there is substantial evidence to support the
ALJ’s RFC determination.

Though it appears the ALJ departed

from Dr. Han’s opinion by concluding plaintiff could stand or
walk for six hours in a given workday, and that such departure
was error in the absence of good reasons, this court finds the
departure is likely a typographical error and, in any event,
harmless.

The ALJ correctly articulated Dr. Han’s opinion that

plaintiff could stand and/or walk for up to two hours later in
her decision.

(Tr. 18.)

Moreover, even if the ALJ departed

without good reason, the ALJ nonetheless determined plaintiff’s
RFC was sedentary, consistent with Dr. Han’s opinion that
plaintiff was limited to two hours of standing or walking in an
eight-hour workday.

See SSR 96-9p, 1996 WL 374185 (July 2,

1996) (“Jobs are sedentary if walking and standing are required
occasionally . . . no more than about 2 hours of an 8-hour
workday.”).

Thus, the ALJ’s error, whether typographical or

otherwise, was harmless and the ALJ’s RFC determination must
stand.
B.

The ALJ’s Past Relevant Work Analysis
To avoid a need for further appeals, the court also

notes error in the ALJ’s step four analysis.
37

At step four, the

Commissioner must determine whether the claimant’s RFC permits
the claimant to perform his or her “past relevant work.”
C.F.R. § 404.1520(a)(4)(iv).

20

Past relevant work is “work that

[the claimant] ha[s] done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for
[the claimant] to learn to do it.”

20 C.F.R. § 404.1560(b)(1).

If the claimant can perform his or her past relevant work, the
claimant is not disabled.

20 C.F.R. § 404.1520(f).

Here, the ALJ concluded that plaintiff’s past relevant
work included work as a daycare supervisor, as defined in the
DOT 092.167-010.

(Tr. 13.)

Plaintiff testified that she had

previously worked as a “family worker,” but VE Martin testified
that this work had been daycare supervisor work as defined in
the DOT, and the ALJ relied on VE Martin’s testimony.

There is

not, however, substantial evidence that plaintiff’s past
relevant work included work as a daycare supervisor as defined
in the DOT.
The DOT’s definition of daycare supervisor or director
at occupation code 092.167-010 requires that the person
performing the job “direct[] activities of [a] . . . child
development facility to provide instruction and care for
children” by
[p]reparing and submit[ting] [a] facility budget
to board of trustees, administrative agency, or
owner for approval[;] [a]uthoriz[ing] purchase[s]
38

of instructional materials and teaching aids,
such as books, toys, and games designed to
stimulate learning[;] [i]nterview[ing] and
recommend[ing] hiring of teaching and service
staff[;] [c]onfer[ing] with parents regarding
facility activities, policies, and enrollment
procedures[;] [c]onferring with teaching staff
regarding [a] child’s behavioral or learning
problems, and recommend[ing] methods of modifying
inappropriate behavior and encouraging learning
experiences[;] [r]eview[ing] and evaluat[ing]
facility activities to ensure conformance to
state and local regulations[; and] [r]eview[ing]
and approv[ing] menu plans and food purchases.
Dictionary of Occupational Titles (“DOT”) 092.167-010, 1991 WL
646894.
The only record evidence regarding plaintiff’s job
duties as a “family worker” is her own testimony, which does not
constitute substantial evidence that such work fell within the
DOT’s definition of “daycare supervisor.”

Defendant points

specifically to plaintiff’s testimony that she visited daycare
centers and “ma[d]e[] sure . . . they had everything to code,”
and would “sit and make sure their menus were good, and that the
children were okay, and that they were following protocol.”
(Def. Mem. 25-26 (quoting Tr. 46).)

Defendant also notes

plaintiff’s testimony that she would make “suggest[ions]”
regarding children’s food menus to staff at various daycares
that she visited in the course of her job.
26 (citation omitted).)

(Tr. 46; Def. Mem.

Additionally, defendant notes

plaintiff’s testimony that she “wouldn’t hire or fire” teachers
directly, but would instead “write the paperwork, and submit it
39

to [the] program director, wh[o] . . . was in charge of hiring
and firing.”

(Tr. 68-69; Def. Mem. 26.)

Nothing in defendant’s cited testimony, however,
establishes that plaintiff had supervisory power to approve or
disapprove menu plans, as set forth in the DOT’s description of
the daycare supervisor job.

Instead, plaintiff testified only

that she “suggested things” to daycare staff regarding menus and
that she provided staff members with menu suggestions that they
“c[ould]” opt to implement.

(Tr. 46.)

Thus, plaintiff’s

testimony suggests that daycare staff were free to discard her
suggestions, and consequently that plaintiff did not in any
material sense “approve[]” or reject any menus plans.
Similarly, plaintiff’s testimony that the “program director
. . . was in charge of hiring and firing,” (Tr. 69), establishes
that plaintiff herself did not actually hire or fire employees.
Further, nothing in plaintiff’s testimony indicates
that she performed any other functions of “daycare supervisors”
as set forth in the DOT.

More specifically, plaintiff’s

testimony is silent as to her involvement, if any, in budgeting;
authorizing purchases of instructional materials; conferring
with parents regarding daycare a facility’s activities,
policies, and enrollment procedures; conferring with teachers
regarding children’s behavioral or learning problems; and

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recommending methods of modifying inappropriate behavior and
encouraging learning experiences.
Plaintiff’s testimony only establishes that her job
duties as a “family worker” were similar to two duties of
daycare supervisors.

Her testimony, however, is wholly silent

regarding the many other daycare supervisor job duties,
especially the more substantial duties, set forth in the DOT,
and thus does not suffice to establish that plaintiff was a
daycare supervisor.

In reaching this conclusion, the court

notes that plaintiff’s testimony is no more consistent with the
DOT’s definition of “daycare supervisor” than it is with other
occupations described in the DOT, including “nutritional
consultant,” DOT 077.127-018, 1991 WL 646783, and “program
consultant” or “community service consultant,” DOT 195.167-010,
1991 WL 671582.

Indeed, though plaintiff used the word

“supervise” several times to describe her responsibilities, her
work was more akin to that of an inspector ensuring facilities
complied with statutory requirements.

And, even if plaintiff

had described herself expressly as a director, her stated duties
do not conform at all with the description of a daycare director
as listed in the DOT.
Consequently, the court concludes that the ALJ’s step
four conclusion is not supported by substantial evidence.

On

remand, the ALJ shall reevaluate her determination regarding
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plaintiff’s past relevant work, and shall elicit further
testimony from a vocational expert to determine the proper
classification of plaintiff’s past relevant work as a “family
worker,” and shall ensure that substantial evidence in the
record supports any determination regarding the nature of
plaintiff’s past relevant work.
Additionally, plaintiff reached age 50 on June 30,
2016, prior to the date on which the ALJ Decision was issued.
Consequently, plaintiff became a person “closely approaching
advanced age” within the meaning of 20 C.F.R. 404.1563(d) as of
July 30, 2016.

The ALJ likely ignored 20 C.F.R., Part 404,

Subpart P, Appendix 2, Rule 201’s grids because she determined,
erroneously as discussed above, that plaintiff’s past relevant
work as a “family worker” complied with the DOT’s definition of
a daycare supervisor.

The ALJ further determined that the work

of a daycare supervisor is performed at the sedentary level.
(Tr. 21.)

Absent that erroneous determination, plaintiff’s past

relevant work does not include any work classified as sedentary.
Indeed, the ALJ noted plaintiff’s work as a “family worker” was
performed at a medium exertion level.

(Id.)

On remand, and to

the extent necessary in light of the ALJ’s other determinations,
the ALJ shall consider the impact of 20 C.F.R., Part 404,
Subpart P, Appendix 2, Rule 201.14, on plaintiff’s claim for
Title II Disability Insurance Benefits.
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Assuming plaintiff

falls within the ambit of Rules 201.14 or 201.15 given her
status as closely approaching advanced age, the ALJ should
determine if plaintiff’s skills are transferable or not.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for
judgment on the pleadings is GRANTED in part to the extent this
action is remanded, and DENIED in part.

Defendant’s cross-

motion for judgment on the pleadings is DENIED.

This action is

hereby remanded for further proceedings consistent with this
Order.
SO ORDERED.
Dated:

August 6, 2019
Brooklyn, New York
_________/s/_________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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