Fiorante v. Commissioner of Social Security

Filing 24

MEMORANDUM OF DECISION & ORDER: For the reasons stated above, the Plaintiffs 15 motion for summary judgment pursuant to Rule 56 is denied in its entirety, and the Commissioners 19 motion for a judgment on the pleadings pursuant to Rule 12(c) is granted. The Clerk of the Court is respectfully directed to close the case. SEE ATTACHED DECISION for details. SO ORDERED by Judge Arthur D. Spatt on 6/19/18. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
FRANCIS ROSARIO FIORANTE,
Plaintiff,

MEMORANDUM OF
DECISION & ORDER
2:16-cv-05731 (ADS)

-againstCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
---------------------------------------------------------X
APPEARANCES:
Joseph C. Stroble
Attorney for the Plaintiff
40 Main Street
Sayville, NY 11782
By:
Joseph C. Stroble, Esq., Of Counsel

United States Attorney’s Office for the Eastern District of New York
Attorneys for the Defendant
271 Cadman Plaza East
Brooklyn, NY 11201
By:
Peter W. Jewett, Assistant United States Attorney
SPATT, District Judge:
The Plaintiff Francis Rosario Fiorante (the “Plaintiff”) commenced this this civil action
pursuant to the Social Security Act, 42 U.S.C. § 405 et seq. (the “Act”), challenging a final
determination by the Defendant, the Commissioner of Social Security (the “Defendant” or the
“Commissioner”), the acting commissioner of the Social Security Administration (the
“Administration”) at the time of filing, that he is ineligible to receive Social Security disability
insurance benefits.
Presently before the Court are the parties’ cross motions. The Plaintiff has moved for
summary judgment pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 56,

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and the Commissioner has moved for a judgment on the pleadings pursuant to Rule 12(c). For the
reasons that follow, the Plaintiff’s motion is denied, and the Commissioner’s motion is granted.
I. BACKGROUND
On September 19, 2014, the Plaintiff applied for disability benefits, alleging that he became
disabled on June 9, 2011 as a result of a heart condition, a heart attack, a back injury, depression,
and a herniated disc.
On January 13, 2015, the Administration denied his claim, and the Plaintiff requested a
hearing.
On January 28, 2016, Administrative Law Judge Alan B. Berkowitz (the “ALJ”) conducted
a hearing during which the Plaintiff was represented by counsel.
On February 19, 2016, the ALJ issued a written decision denying the Plaintiff’s claim. The
ALJ found that the Plaintiff had not engaged in substantial gainful activity from his alleged onset
date of June 9, 2011 through his last insured date of December 1, 2014. The ALJ determined that
the Plaintiff suffers from a number of substantial impairments including lumbar and cervical spine
disorders, coronary artery disease status post myocardial infarction, hypertension, hyperlipidemia,
and depressive disorder. However, the ALJ found that these impairments do not meet or medically
equal any listed impairment.
The ALJ determined that the Plaintiff has the residual functional capacity to perform
sedentary work, except that he could only sit for thirty minutes before needing a two minute break
to reposition his body; could occasionally bend, squat, crouch, kneel and crawl; was limited to low
stress jobs; and could not be exposed to dangerous heights or machinery. The ALJ found that the
Plaintiff could not perform his past relevant work, but based on the vocational expert’s testimony,
determined that there were a significant number of jobs in the national economy that the Plaintiff

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could perform. Because the Plaintiff could perform work for which there exists a significant
number of position in the national economy, the ALJ determined that the Plaintiff is not disabled.
The Plaintiff subsequently requested a review by the Appeals Council.
On June 10, 2016, the Appeals Council granted the Plaintiff’s request for review, but on
August 10, 2016, the Appeals Council found that the Plaintiff is not disabled and adopted the
majority of the ALJ’s decision. The Appeals Council merely found that the ALJ had incorrectly
determined the Plaintiff’s last insured date. The Appeals Council adopted the remainder of the
ALJ’s decision. The Appeals Council’s decision was the final decision of the Commissioner.
On October 14, 2016, the Plaintiff commenced the instant action. The Plaintiff filed his
motion for summary judgment on June 19, 2017, and the Commissioner filed her motion for a
judgment on the pleadings on November 2, 2017. The motions were fully briefed on November
2, 2017.
For purposes of these motions, familiarity with the underlying administrative record is
presumed. The Court’s discussion of the evidence will be limited to the specific challenges
presently raised by the Plaintiff. In this regard, references to the record are denoted as “R.”
II. DISCUSSION
A. The Applicable Law
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. See Lowry v. Astrue, 474 F. App’x 801, 805 n.2 (2d Cir. 2012)
(applying and referencing the version of the regulation in effect when the ALJ adjudicated the
plaintiff’s claim); Michael Barca, Plaintiff, v. Comm’r of Soc. Sec., Defendant., No. 2:16-CV-187,
2017 WL 3396416, at *8 (D. Vt. Aug. 8, 2017) (same); Alvarez v. Comm’r of Soc. Sec., No.

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14CV3542(MKB), 2015 WL 5657389, at *11 n.26 (E.D.N.Y. Sept. 23, 2015) (“[T]he Court
considers the ALJ’s decision in light of the regulation in effect at the time of the decision.” (citing
Lowry, 474 F. App’x at 805 n.2)).
The Act defines the term “disability” to mean an “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 12 months.” Burgess
v. Astrue, 537 F.3d 117, 119 (2d Cir. 2008) (quoting 42 U.S.C. § 423(d)(1)(A)) (quotation marks
omitted). In addition, “[t]he impairment must be of ‘such severity that [the claimant] 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.’” Shaw
v. Chater, 221 F.3d 126, 131–32 (2d Cir. 2000) (quoting 42 U.S.C. § 423(d)(2)(A)).
In determining whether a claimant is disabled, the Commissioner is required to apply the
five-step sequential process set forth in 20 C.F.R. § 404.1520. Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999). The claimant bears the burden of proving the first four steps, but then the burden
shifts to the Commission at the fifth step. Rosa, 168 F.3d at 77. First, the Commissioner considers
whether the claimant is presently working in substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i); Rosa, 168 F.3d at 77. If the claimant is not so engaged, the Commissioner next
considers whether the claimant has a “severe impairment” that significantly limits her physical or
mental ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii); Rosa, 168 F.3d at 77. If
the severity requirement is met, the third inquiry is whether, based solely on medical evidence, the
claimant has an impairment that is listed in Appendix 1 of the regulations, or is equal to a listed
impairment. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Part 404, Subpart P, Appendix 1; Rosa,
168 F.3d at 77. If the claimant has such an impairment, there will be a finding of disability. If

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not, the fourth inquiry is to determine whether, despite the claimant’s severe impairment, the
claimant’s residual functional capacity allows the claimant to perform his or her past work. 20
C.F.R. § 404.1520(a)(4)(iv); Rosa, 168 F.3d at 77. Finally, if a claimant is unable to perform past
work, the Commissioner then determines whether there is other work, such as “light work”
discussed infra, that the claimant could perform, taking into account, inter alia, the claimant's
residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v);
Rosa, 168 F.3d at 77.
B. The Standard of Review
“Judicial review of the denial of disability benefits is narrow” and “[t]he Court will set
aside the Commissioner’s conclusions only if they are not supported by substantial evidence in the
record as a whole or are based on an erroneous legal standard.” Koffsky v. Apfel, 26 F. Supp. 475,
478 (E.D.N.Y. Nov. 16, 1998) (Spatt, J.) (citing Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998)).
Thus, “the reviewing court does not decide the case de novo.” Pereira v. Astrue, 279
F.R.D. 201, 205 (E.D.N.Y. 2010). Rather, “the findings of the Commissioner as to any fact, if
supported by substantial evidence, are conclusive,” id., and therefore, the relevant question is not
“whether there is substantial evidence to support the [claimant’s] view”; instead, the Court “must
decide whether substantial evidence supports the ALJ’s decision. ” Bonet v. Colvin, 523 F. App’x
58, 59 (2d Cir. 2013) (emphasis in original). In this way, the “substantial evidence” standard is
“very deferential” to the Commissioner, and allows courts to reject the ALJ’s findings “only if a
reasonable factfinder would have to conclude otherwise.” Brault v. SSA, 683 F.3d 443, 448 (2d
Cir. 2012) (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994) (emphasis in original)).
This deferential standard applies not only to factual determinations, but also to inferences and
conclusions drawn from such facts.” Pena v. Barnhart, No. 01-cv-502, 2002 U.S. Dist. LEXIS

5

21427, at *20 (S.D.N.Y. Oct. 29, 2002) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir.
1966)).
In this context, “[s]ubstantial evidence means ‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Burgess, 537 F.3d at 128 (quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)). An
ALJ’s findings may properly rest on substantial evidence even where he or she fails to “recite
every piece of evidence that contributed to the decision, so long as the record ‘permits [the Court]
to glean the rationale of [his or her] decision.’” Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir.
2013) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). This remains true “even
if contrary evidence exists.” Mackey v. Barnhart, 306 F. Supp. 337, 340 (E.D.N.Y. 2004) (citing
DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998), for the proposition that an ALJ’s
decision may be affirmed where there is substantial evidence for both sides).
The Court is prohibited from substituting its own judgment for that of the Commissioner,
even if it might justifiably have reached a different result upon a de novo review. See Koffsky, 26
F. Supp. at 478 (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)).
C. Application to the Facts
The Plaintiff contends that the ALJ erred in affording less weight to the opinion of the
Plaintiff’s treating physician, Dr. Richard Lee (“Dr. Lee”), who said that the Plaintiff would need
to take unscheduled breaks throughout the day and miss up to three days a month; and that the
ALJ’s assessment of the Plaintiff’s residual functional capacity (“RFC”) is not supported by
substantial evidence.

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1. As to whether the ALJ Erred in Assigning Less Weight to Dr. Lee’s Statements
Regarding the Plaintiff’s Need for Breaks and Absences
Under 20 C.F.R. § 404.1527(c) ALJs are required to weigh and evaluate “every medical
opinion.” When assigning weight to a medical opinion, ALJs consider the following factors: the
nature of the examining relationship; whether or not the medical opinion was made by a treating
source; length of treatment relationship and frequency of examination; supportability; consistency;
specialization; and “other factors . . . which tend to support or contradict the opinion.” 20 C.F.R.
§ 404.1527(c); see also Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013).
Controlling weight can be given to “a treating source’s medical opinion on the issue(s) of
the nature and severity” of the claimant’s impairments if the medical opinion is “well supported
by . . . other substantial evidence . . . .” 20 C.F.R. § 404.1527(c)(2). When a treating source’s
medical opinion is not supported by substantial evidence, the opinion will not be afforded
controlling weight. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). Where an ALJ declines to
give controlling weight to a treating physician’s opinion, he must provide “good reasons” for doing
so, and must consider the above factors in determining the weight to afford to the opinion. 20
C.F.R. § 404.1527(c)(2) (“When we do not give the treating source's medical opinion controlling
weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as
the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the
medical opinion. We will always give good reasons in our notice of determination or decision for
the weight we give your treating source’s medical opinion.”).
On March 16, 2016, Dr. Lee indicated in a letter that the Plaintiff had a history of coronary
artery disease, hypertension, kidney stones, and herniated discs, which required multiple
medications. He stated that the Plaintiff’s conditions and medications had limited his activity since
his myocardial infarction in 2011. The ALJ ascribed some weight to this opinion, stating that it
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was consistent with the record as a whole. However, the ALJ noted that Dr. Lee did not provide
a function-by-function assessment of the Plaintiff’s abilities to perform work.
On October 14, 2015, Dr. Lee completed a cardiac impairment questionnaire. He noted
that he saw the Plaintiff every three months. Dr. Lee opined that the Plaintiff could lift up to ten
pounds occasionally; sit for six or more hours in an eight-hour day; stand and walk up to two hours
in an eight-hour day; would experience pain, fatigue, or other symptoms severe enough to interfere
with his attention and concentration up to one-third of an eight-hour workday; would need to take
unscheduled breaks of unknown duration and frequency throughout an eight-hour workday; and
would likely be absent two to three times per month.
The ALJ afforded great weight to Dr. Lee’s opinion, except for the portion of the opinion
dealing with breaks and absences. As to those statements the ALJ stated that they “were not
supported by diagnostic testing showing an ejection fraction of 60-65 percent and essentially
unremarkable physical examinations.” (R. at 32). The ALJ also noted that Dr. Lee stated in his
treatment notes that the Plaintiff reported no distress with minimal effort, and that the Plaintiff
only experienced shortness of breath when he overexerted himself.
The Appeals Council noted that Dr. Lee did not examine or treat the Plaintiff before his
insurance expired, and therefore did not examine him during the relevant period; and that Dr. Lee
provided minimal treatment records without significant findings.
The ALJ assigned great weight to the opinion of the consultative examiner, Dr. Andrea
Pollack (“Dr. Pollack”). Dr. Pollack examined the Plaintiff on December 26, 2014. The Plaintiff
reported that he was able to shower and dress himself, and that he spent his time watching
television and listening to the radio. He was not in any acute distress; had a normal gait; squatted
two-thirds of the way down; and did not need help rising to or descending from the changing table.

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Dr. Pollack opined that the Plaintiff had a marked restriction in lifting, carrying, pushing, and
pulling; a mild to moderate restriction in squatting and bending; a mild restriction in walking,
standing, sitting, and climbing stairs; and that he should avoid activities which require heavy
exertion. The ALJ found that Dr. Pollack’s opinion was consistent with the record as a whole.
The Appeals Council noted that Dr. Pollack examined the Plaintiff within a week of his
last date of being insured, and provided a detailed examination report. The Appeals Council
further noted that the examination’s findings were benign, and that they supported the ALJ’s
decision. Based on the fact that Dr. Pollack examined the Plaintiff during the relevant period, and
Dr. Lee did not, the Appeals Council found that Dr. Pollack’s opinion was entitled to greater
weight than Dr. Lee’s opinion.
State agency medical consultant Dr. W. Wells (“Dr. Wells”) found that the Plaintiff could
lift or carry up to ten pounds frequently and twenty pounds occasionally; sit, stand, or walk up to
six hours in an eight-hour workday; and occasionally climb, balance, stoop, kneel, crouch, and
crawl. The ALJ afforded less weight to Dr. Wells’ opinion because he did not examine the Plaintiff
or consider evidence that was submitted at the hearing which showed that the Plaintiff has greater
limitations than those prescribed by Dr. Wells.
The ALJ did not err when he discounted Dr. Lee’s statements regarding the Plaintiff’s
attention and concentration or need for breaks and absences because it was unsupported by his
treatment notes, the objective medical evidence, and Dr. Pollack’s opinion.
As the ALJ pointed out, Dr. Lee’s treatment notes showed that the Plaintiff repeatedly
denied experiencing dizziness or headaches, and did not have any psychiatric complaints. (R. at
722, 727). The Plaintiff told Dr. Lee that he felt no distress with minimal effort, and only
experienced shortness of breath when he overexerted himself. (R. at 727). Therefore, the ALJ

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was entitled to discount Dr. Lee’s opinion as to the Plaintiff’s attention, concentration, and need
for breaks and absences. See Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 7–8 (2d Cir. 2017)
(summary order) (holding that a court can give less weight to a treating source’s medical opinion
where the treatment notes contradict the opinion); Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir.
2013) (summary order) (holding that the ALJ was not required to give controlling weight to
treating physicians’ medical opinions where the treatment notes included unremarkable clinical
findings that contradicted or failed to support the limitations in the opinions).
Similarly, Dr. Shahram Hormozi (“Hormozi”), a cardiologist, noted that the Plaintiff
experienced fatigue and dyspnea on exertion. (R. at 261, 331). When the Plaintiff was treated at
the emergency department at St. Catherine of Siena Medical Center, the physician noted the
Plaintiff was not experiencing chest pain or shortness of breath. The Plaintiff stated that he “felt
fine.” (R. at 504). Dr. Pollack also noted that the Plaintiff has shortness of breath on exertion.
Treatment notes of non-treating physicians can be used to discount the opinions of a treating
physician. See Camille v. Colvin, 652 F. App’x 25, 28 (2d Cir. 2016) (summary order) (holding
that the treatment notes of other doctors can be relied upon to override the medical opinion of a
treating physician). While the ALJ did not specifically reference these notes when he discounted
Dr. Lee’s opinion, the Second Circuit has not required that an ALJ recite every piece of evidence
that supported his or her decision. See Petrie v. Astrue, 412 F. App'x 401, 406 (2d Cir. 2011)
(“[W]here the evidence of record permits us to glean the rationale of an ALJ’s decision, we do not
require that he have mentioned every item of testimony presented to him or have explained why
he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of
disability.” (internal citations and quotations omitted)).

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In addition, the ALJ and the Appeals Council were entitled to rely and give great weight to
the opinion of the consultative examiner, Dr. Pollack, because it was consistent with the evidence
as a whole and with Dr. Lee’s treatment notes. See, e.g., Smith v. Colvin, 17 F. Supp. 3d 260, 268
(W.D.N.Y.2014) (“[T]he opinions of consulting sources ‘may constitute substantial evidence if
they are consistent with the record as a whole.’ This is particularly so where the consultant directly
examines the applicant.” (quoting Barringer v. Comm’r of Soc. Sec., 358 F. Supp. 2d 67, 79
(N.D.N.Y. 2005))); Vanterpool v. Colvin, No. 12-CV-8789 VEC SN, 2014 WL 1979925, at *16
(S.D.N.Y. May 15, 2014) (finding the ALJ did not err in affording greater weight to the opinion
of the consultative physician where the opinion was more consistent with the treating physician’s
medical records).
As to the Plaintiff’s argument that the ALJ erred in discounting Dr. Lee’s opinion by
relying on the Plaintiff’s ejection fraction, the Court finds that the ALJ was permitted to consider
such evidence and did not make his own medical findings in considering such evidence.
The ALJ pointed out that Dr. Lee’s opinion conflicted with the Plaintiff’s ejection fraction
of 60-65 percent which is normal. It is the responsibility of the ALJ to resolve conflicting medical
evidence. See Richardson v. Perales, 402 U.S. 389, 399, 91 S. Ct. 1420, 1426, 28 L. Ed. 2d 842
(1971) (“We therefore are presented with the not uncommon situation of conflicting medical
evidence. The trier of fact has the duty to resolve that conflict.”); Cage v. Comm’r of Soc. Sec.,
692 F.3d 118, 122 (2d Cir. 2012) (“In our review, we defer to the Commissioner’s resolution of
conflicting evidence.”); Aponte v. Secretary, Dep’t of Health and Human Servs., 728 F.2d 588,
591 (2d Cir. 1984) (“It is the function of the [Commissioner], not the reviewing courts, to resolve
evidentiary conflicts . . . .” (internal citations and alterations omitted)).

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ALJs are entitled to consider objective medical evidence including laboratory findings. 20
C.F.R. §416.913(a)(1). An ejection fraction greater than 55% is considered normal. See McBrideMeyers v. Berryhill, No. 16-CV-5696 (RLE), 2017 WL 4386374, at *2 n.1 (S.D.N.Y. Sept. 29,
2017) (“A normal heart’s ejection fraction is between fifty to seventy percent.”); Mejia v. Astrue,
719 F. Supp. 2d 328, 342 n.22 (S.D.N.Y. 2010) (“A ‘normal’ ejection fraction is greater than 55%.
By contrast, an ejection fraction between 30% and 40% indicates moderate systolic dysfunction
and an ejection fraction below 30% demonstrates severe systolic dysfunction.” (citing American
Medical Association, Guides to the Evaluation of Permanent Impairment at 170; Sheehan v.
Metro. Life Ins. Co., 368 F. Supp. 2d 228, 248 n.12 (S.D.N.Y. 2005)); see also Dorland’s
Illustrated Medical Dictionary at 708 (stating that an “ejection fraction” is the “proportion of the
volume of blood in the ventricles at the end of diastole that is ejected during systole; it is the stroke
volume divided by the end-diastolic volume, often expressed as a percentage”). Low ejection
fractions can cause fatigue. See, e.g., Ahern v. Astrue, No. 09-CV-5543 JFB, 2011 WL 1113534,
at *6 (E.D.N.Y. Mar. 24, 2011) (“Plaintiff’s fatigue was presumably caused by low ejection
fraction.”);

see

also

Ejection

Fraction,

HEART

RHYTHM

SOCIETY,

https://www.hrsonline.org/Patient-Resources/The-Normal-Heart/Ejection-Fraction (last visited
May 22, 2018) (stating that fatigue may be associated with a low ejection fraction).
The Plaintiff’s ejection fraction was consistent with the findings of Doctor Pollack and
Doctor Hormozi, who said that the Plaintiff experienced fatigue upon exertion. Therefore, the ALJ
was entitled to rely on the objective medical evidence in the form of diagnostic testing when
discounting Dr. Lee’s opinion. See Rodriguez v. Colvin, No. 15 CIV. 8390 (AJP), 2016 WL
1178780, at *6–*14 (S.D.N.Y. Mar. 25, 2016) (stating that the ALJ “considered Rodriguez’
records from Jacobi Medical Center, finding that his ventricular ejection fraction was ‘well within

12

normal limits’” and finding that the ALJ’s decision was supported by substantial evidence
including the plaintiff’s “good post-operative cardiac function, consistently regular heart rate and
rhythym” (internal citations to the record omitted)); Rossow v. Colvin, No. 14-CV-526S, 2015
WL 5089058, at *4 (W.D.N.Y. Aug. 27, 2015) (finding that the ALJ was entitled to give little
weight to the opinion of the plaintiff’s treating physician that the plaintiff was disabled due to heart
disease because the plaintiff’s examinations were unremarkable, and the plaintiff’s ejection
fraction measured in the normal range); Felix v. Astrue, No. 11-CV-3697 KAM, 2012 WL
3043203, at *7 (E.D.N.Y. July 24, 2012) (finding that the ALJ properly discounted the plaintiff’s
complaints of pain because “his heart was found to have ‘good ejection fraction’ and ‘good wall
motion,’ and that his cardiac assessment was ‘within normal limits.’” (internal citations to the
record omitted)); Townsend v. Comm'r of Soc. Sec., No. 11-CV-801 JG, 2011 WL 3648346, at *6
(E.D.N.Y. Aug. 17, 2011) (finding that the ALJ was entitled to discount the opinion of the
plaintiff’s treating physician where the ALJ considered the record as a whole, including the
plaintiff’s ejection fraction, which varied between 59% to 61%, and a contradictory medical
opinion).
Therefore, the ALJ did not err in affording less weight to the portion of Dr. Lee’s opinion
regarding breaks and absences because there was substantial evidence showing that the Plaintiff
would not require such breaks or absences. Accordingly, the Plaintiff’s motion for summary
judgment on that basis is denied.
2. As to Whether the ALJ’s Assessment of the Plaintiff’s RFC Is Supported By
Substantial Evidence
The Plaintiff contends that the ALJ erred in assessing the Plaintiff’s RFC. The Court finds
that the ALJ’s RFC determination is supported by substantial evidence.

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A claimant’s RFC is “the most [they] can still do despite [their] limitations. . . . [R]esidual
functional capacity [is assessed] based on all the relevant evidence in [a claimant’s] case record.
20 C.F.R. § 404.1545(a). At an administrative hearing, the ALJ is responsible for determining a
claimant’s RFC. 20 C.F.R. § 404.1546(c).
Here, the ALJ found that the Plaintiff is capable of performing sedentary work except that
the Plaintiff could only sit for thirty minutes before needing a two minute break to reposition
himself; could occasionally bend, squat, crouch, kneel, and crawl; was limited to low stress jobs;
and could not be exposed to dangerous heights or machinery.
Sedentary work is defined in the regulations as:
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).
Determining a claimant’s RFC is the sole province of an ALJ. See 20 C.F.R. § 404.1546(c)
(“If your case is at the administrative law judge hearing level . . . , the administrative law
judge . . . is responsible for assessing your residual functional capacity.”).

While an RFC

determination is, to a certain extent, a medical determination, see Hilsdorf v. Comm’r of Soc. Sec.,
724 F. Supp. 2d 330, 347 (E.D.N.Y. 2010), the ultimate RFC determination is left to the ALJ.
Here, the ALJ’s RFC determination aligned with the opinions of Dr. Lee, Dr. Pollack and
the state agency medical consultant Dr. W. Wells, except for Dr. Lee’s opinion regarding breaks
and absences. As stated above, it was proper for the ALJ to discount that portion of the opinion
as it was not supported by Dr. Lee’s treatment notes or the objective medical evidence, and it was
contradicted by Dr. Pollack’s notes. The ALJ was entitled to weigh all of the relevant medical

14

evidence in determining the Plaintiff’s RFC. See Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir.
2013) (summary order) (“Although the ALJ’s conclusion may not perfectly correspond with any
of the opinions of medical sources cited in his decision, he was entitled to weigh all of the evidence
available to make an RFC finding that was consistent with the record as a whole.”); see also 20
C.F.R. § 404.1545(a)(1) (stating that the Commissioner will “assess [a claimant’s] residual
functional capacity based on all the relevant evidence in [the claimant’s] case record.” (italics
added)). Divergent medical opinions, and conflicting evidence, are for the ALJ to resolve. See
Cage, 692 F.3d at 122 (“In our review, we 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.”). Therefore, the ALJ’s RFC determination
is supported by substantial evidence for the same reasons that the ALJ’s decision to discount a
portion of Dr. Lee’s opinion was so supported.
As the Commissioner points out, the sole case cited by the Plaintiff in support of his
argument that the ALJ incorrectly found that the Plaintiff is disabled is an out-of-circuit case which
held that the ALJ improperly determined that the plaintiff did not suffer from any severe
impairments. (See Pl.’s Mem. in Supp. of Mot. for Summ. J. at 6 (citing Conway v. Bowen, 680
F. Supp. 394 (D.D.C. 1987))). Here, the ALJ found that the Plaintiff suffers from a number of
severe impairments. Therefore, Conway is not applicable here.
For the same reasons the Court found that Dr. Lee’s opinion regarding the Plaintiff’s
concentration, attention, and need for breaks and absences was not supported by substantial
evidence, the Court finds that the ALJ’s RFC determination is supported by substantial evidence.
The Court again notes that this is a deferential standard—it is not a question of whether the Court
would rule in the same manner as the ALJ if the Court were to decide the case de novo, Mollo v.

15

Barnhart, 305 F. Supp. 2d 252, 260 (E.D.N.Y. 2004) (Spatt, J.) (“[T]he court may not substitute
its own judgment for that of the Secretary, even if it might justifiably have reached a different
result upon de novo review.” (quoting Jones, 949 F.2d at 59 (internal quotation marks omitted)));
or even whether there is substantial evidence to support the Plaintiff’s claims, Bonet, 523 F. App’x
at 59 (“[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 decision.” (citations
omitted)). Instead, it is a question of whether substantial evidence supports the Commissioner’s
decision.
Therefore, the ALJ properly determined the Plaintiff’s RFC as it was supported by
substantial evidence. Accordingly, the Plaintiff’s motion for summary judgment on that basis is
denied.
III. CONCLUSION
For the reasons stated above, the Plaintiff’s motion for summary judgment pursuant to Rule
56 is denied in its entirety, and the Commissioner’s motion for a judgment on the pleadings
pursuant to Rule 12(c) is granted. The Clerk of the Court is respectfully directed to close the case.

SO ORDERED:
Dated: Central Islip, New York
June 19, 2018
___/s/ Arthur D. Spatt_____
ARTHUR D. SPATT
United States District Judge

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