Franco v. Berryhill

Filing 25

MEMORANDUM OF DECISION & ORDER: For the foregoing reasons, the Court denies the Plaintiff's 18 Rule 12(c) motion, grants the Defendant's 20 Rule 12(c) cross-motion, and dismisses the complaint. The Clerk of Court is respectfully directed to close the case. SEE ATTACHED DECISION for details. It is So Ordered by Judge Arthur D. Spatt on 11/21/2019. (Coleman, Laurie)

FILED 
CLERK 

9:35 am, Nov 21, 2019

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
CHRISTOPHER FRANCO,

MEMORANDUM OF
DECISION & ORDER
2:17-cv-7548 (ADS)

Plaintiff,
-againstNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
---------------------------------------------------------X
APPEARANCES:

Law Office of Christopher James Bowes
Attorneys for the Plaintiff
54 Cobblestone Drive
Shoreham, NY 11786
By:
Christopher James Bowes, Esq., Of Counsel.
United States Attorneys Office, Eastern District of New York
Attorneys for the Defendant
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201
By:
Prashant Tamaskar, Esq., Assistant United States Attorney.
SPATT, District Judge:
On December 27, 2017, the Plaintiff Christopher Franco (the “Plaintiff” or the
“Claimant”) commenced this appeal pursuant to the Social Security Act, 42 U.S.C. § 405 et seq.
(the “Act”), challenging a final determination by the Defendant, Nancy A. Berryhill, the then
Acting Commissioner of the Social Security Administration (the “Defendant” or the
“Commissioner”), that he was ineligible to receive Social Security disability benefits.
Andrew M. Saul is now the Commissioner of the Social Security Administration.
Pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.”) 25(d), Saul is hereby
substituted for Acting Commissioner Nancy A. Berryhill as the defendant in this action. See,
1

e.g., Pelaez v. Berryhill, No. 12-CV-7796, 2017 WL 6389162 (S.D.N.Y. Dec. 14, 2017), adopted
by, 2018 WL 318478 (S.D.N.Y. Jan. 3, 2018).
Presently before the Court are the parties’ cross motions, pursuant to FED. R. CIV. P.
12(c), for a judgment on the pleadings. For the reasons that follow, the Plaintiff’s motion is
denied, the Defendant’s cross-motion is granted, and the case is dismissed.
I.

BACKGROUND
The Plaintiff is a 50-year-old former corrections officer and high school security guard.

He also worked part-time for Home Depot installing cabinets, and performing similar work “offthe-book[s]” for others.
The Plaintiff had previously applied for disability insurance benefits under the Act, and in
a May 2011 hearing decision (the “May 2011 Action”), he was awarded a period of disability
with an established onset date of December 30, 2003, and a benefit cessation date of March 3,
2008. On October 25, 2011, the Plaintiff again applied for disability insurance benefits under the
Act. He alleged that he had been disabled since May 25, 2011 because of a cervical and lumbar
disc disease, as well as bilateral carpal tunnel syndrome. The present action originates from this
second application for benefits.
The Plaintiff’s second claim was denied on May 4, 2012, and he requested a hearing. He
appeared with counsel before Administrative Law Judge Bruce MacDougall (“ALJ
MacDougall”) on February 12, 2013. On February 28, 2013, ALJ MacDougall issued a written
decision denying the Plaintiff’s claim, reasoning that the Plaintiff retained the capacity to
perform a range of light work.
The Plaintiff sought a review by the Appeals Council, and on April 11, 2014, the Appeals
Council granted review and remanded the Plaintiff’s case for a new decision. On August 14,
2

2014, the Plaintiff again appeared, with counsel, before ALJ MacDougall. On August 22, 2014,
ALJ MacDougall issued a written decision that once again denied the Plaintiff’s claims, ruling
that the Plaintiff retained the capacity for light work with a sit/stand option permitting him to sit
or stand for five minutes every half hour. ALJ MacDougall further determined that even with
this limitation, the Plaintiff remained able to work as a security guard. The Plaintiff sought a
review by the Appeals Counsel, which denied his request on October 22, 2015.
After the Appeals Counsel denied review, the Plaintiff challenged that decision in
December 2015 by filing a civil action, appearing before then United States District Court Judge
Joseph F. Bianco. In June 2016, by stipulation and order, the court remanded the case for
additional administrative proceedings. In October 2016, the Appeals Counsel remanded the
Plaintiff’s case for clarification of his past work as a security guard, and also for evaluation of
other work that might be available to him.
The Plaintiff next appeared, with counsel, before ALJ April Wexler (“ALJ Wexler”). On
June 16, 2017, ALJ Wexler issued a written decision that denied the Plaintiff’s claim, ruling that
despite having cervical and lumbar spine disc disease, the Plaintiff retained the capacity to work
as a surveillance system monitor and as a call-out operator.
The Plaintiff again sought a review by the Appeals Counsel, which denied his request on
October 26, 2017. ALJ Wexler’s decision became the final decision of the Commissioner upon
the Appeals Counsel’s denial of the Plaintiff’s request for review.
On December 27, 2017, the Plaintiff filed the present action. On April 12, 2019, the
parties submitted the Plaintiff’s Rule 12(c) motion and the Defendant’s Rule 12(c) cross-motion
as fully briefed to the Court.

3

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 and
responses presently raised by the Plaintiff and the Defendant. In this regard, references to the
record are denoted as “R.”
II.

DISCUSSION
Briefly, the parties have presented two issues for the Court: (1) whether the ALJ’s finding

as to the Plaintiff’s residual functional capacity had support in the record; and (2) whether, in
light of that finding, the ALJ properly ruled that the Plaintiff retained the capacity to work as a
surveillance system monitor or call-out operator. The Court finds that the record contained
substantial evidence for the ALJ’s finding as to the Plaintiff’s residual functional capacity, and,
that the ALJ also correctly ruled that the Plaintiff retained the capacity to perform those two jobs.
Thus, the Court denies the Plaintiff’s Rule 12(c) motion, grants the Defendant’s Rule 12(c)
cross-motion, and dismisses the action.
A. The Standa rd for Benefits Under the Act
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
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A person may only be disabled if
his “impairments are of such severity that he is not only unable to do his previous work[,] but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
In determining whether a person is disabled, the Commissioner is required to apply the
five-step sequential process promulgated by the Social Security Administration, set forth in 20
4

C.F.R. § 404.1520. See Rosa v Callahan, 168 F.3d 72, 77 (2d Cir. 1999). The Plaintiff bears the
burden of proving the first four steps, but then the burden shifts to the Commissioner at the fifth
step to prove that the Plaintiff is capable of working. Poupore v. Astrue, 566 F.3d 303, 306 (2d
Cir. 2009) (per curiam); Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008); Rosa, 168 F.3d at
77. See also Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) (“If the claimant satisfies her burden
of proving the requirements in the first four steps, the burden then shifts to the [Commissioner]
to prove in the fifth step that the claimant is capable of working.”). “If at any step a finding of
disability or non-disability can be made, the [Social Security Administration] will not review the
claim further.” Barnhart v. Thomas, 540 U.S. 20, 24, 124 S. Ct. 376, 379, 157 L. Ed. 2d 333
(2003).
Under the five-step sequential evaluation process, the decision-maker decides:
(1) whether the claimant is currently engaged in substantial gainful activity; (2)
whether the claimant has a severe impairment or combination of impairments; (3)
whether the impairment meets or equals the severity of the specified impairments
in the Listing of Impairments; (4) based on a ‘residual functional capacity’
assessment, whether the claimant can perform any of his or her past relevant work
despite the impairment; and (5) whether there are significant numbers of jobs in
the national economy that the claimant can perform given the claimant’s residual
functional capacity, age, education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
1996); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); 20 C.F.R.
§§ 404.1520, 416.920. When conducting this analysis, the ALJ must consider the objective
medical facts; the diagnoses or medical opinions based on these facts; the subjective evidence of
pain and disability; as well as the plaintiff’s age, background, education and work experience.
Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).

5

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.
2d 475, 478 (E.D.N.Y. 1998) (Spatt, J.) (citing Bubnis v. Apfel, 150 F.3d 177, 179–71 (2d Cir.
1998)); accord Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000)); 42 U.S.C. § 405(g). See also Alston v. Sullivan, 904 F.2d 122,
126 (2d Cir. 1990) (“Where there is substantial evidence to support either position, the
determination is one to be made by the factfinder.”). The ALJ is required to set forth those
crucial factors used to justify his or her findings with sufficient particularity to allow the district
court to make a determination regarding the existence of substantial evidence. Ferraris v.
Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Accordingly, “the reviewing court does not decide the case de novo.” Pereira v. Astrue,
279 F.R.D. 201, 205 (E.D.N.Y. 2010) (citing Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.
2004)). Rather, “the findings of the Commissioner as to any fact, if supported by substantial
evidence, are conclusive,” id. (citing 42 U.S.C. § 405(g)), and therefore, the relevant question is
not “whether there is substantial evidence supporting the [plaintiff’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) (Summary Order) (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. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d
Cir. 2012) (per curiam) (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)
6

(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 WL 31487903, at *7 (S.D.N.Y. Oct. 29, 2002) (citing Levine v. Gardner, 360 F.2d 727,
730 (2d Cir. 1966)).
“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.’” Burgess v. Astrue, 537
F.3d 117, 127–28 (2d Cir. 2008) (quoting Halloran, 362 F.3d at 31); accord Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L Ed. 2d 842 (1971); Williams v. Bowen,
859 F.2d 255, 258 (2d Cir. 1988). “To determine on appeal whether an ALJ’s findings are
supported by substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence must also
include that which detracts from its weight.” Williams, 859 F.2d at 258 (citing Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 464, 95 L. Ed. 456 (1951)).
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 an ALJ’s decision.’” Cichocki v. Astrue, 729 F.3d 172, 178
n.3 (2d Cir. 2013) (per curiam) (quoting Mongeur, 722 F.2d at 1040). This remains true “even if
contrary evidence exists.” Mackey v. Barnhart, 306 F. Supp. 2d 337, 340 (E.D.N.Y. 2004)
(citing DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998)).
C. The Rule 12(c) Standard
Both parties filed Rule 12(c) motions. Such motions are reviewed under the same
standard as Rule 12(b)(6) motions to dismiss. See Bank of New York v. First Millennium, Inc.,
607 F.3d 905, 922 (2d Cir. 2010). “To survive a Rule 12(c) motion, the complaint ‘must contain
7

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”
Id. (quoting Hayden v. Peterson, 594 F.3d 150, 160 (2d Cir. 2010). The issue on a motion to
dismiss is “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.” Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001)
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)).
“‘Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 566 U.S. 662,
129 S. Ct. 1937, 1949–50, 173 L. Ed. 2d 868 (2009)).
D. Application to the Facts of This Case
The Plaintiff asks in his Rule 12(c) motion for the Court to reverse the final
administrative decision in his action and remand it for further proceedings. ECF 19. The
Plaintiff raises two arguments in his motion, both of them bearing on ALJ Wexler’s ruling as to
the Plaintiff’s residual functional capacity. First, he alleges the record does not support ALJ
Wexler’s ruling that the Plaintiff retained the residual functional capacity for sedentary work and
occasional handling and fingering. Id. at 18–22. Second, he contends that, as a result of the
erroneous residual functional capacity finding, the ALJ also erred in relying on the testimony of
a vocational expert that the Plaintiff could work as a surveillance system monitor and as a callout operator. Id. at 22.
The Plaintiff dedicates most of his Rule 12(c) motion to the first issue, which the Court
now briefly summarizes. First, the Plaintiff argues that Dr. Ira Chernoff, his treating physician
and an orthopedic surgeon, “completed a detailed medical narrative from which he concluded
that [the Plaintiff] was unable to perform sedentary types of work on account of” his
8

impairments. Id. at 19. However, ALJ Wexler assigned little weight to the opinion, using an
unsubstantiated rationale that it was not supported by the evidence in the record. Id. at 19–20.
Second, the Plaintiff refers to a report by Dr. Osvaldo Fulco—who offered his opinion in
the in the May 2011 Action—in which Dr. Fulco opined that the Plaintiff could not use his right
hand, and that he was limited to standing and walking for just one hour in an eight-hour
workday, and sitting for no more than four hours. Id. at 20. The Plaintiff argues that ALJ should
have credited these opinions rather than relying on her own lay opinion. Id. at 20–21. Third, the
Plaintiff argues that ALJ Wexler should have recontacted Dr. Chernoff if she thought his opinion
lacked detail, and should have recalled Dr. Fulco “or some other medical advisor to help her
make an informed medical decision,” or ordered that the Plaintiff attend a post-hearing
consultative medical evaluation. Id. at 21–22. As to the second issue, the Plaintiff makes no
specific arguments as to the vocational expert’s testimony, he only asserts that the improper
residual functional capacity ruling necessarily tainted the decision as to what jobs the Plaintiff
could perform. Id. at 22.
The Defendant asks that the Court affirm the Commissioner’s decision. ECF 21. It
argues that substantial evidence in the record supports the decision that the Plaintiff’s
impairments did not preclude him from performing certain types of sedentary work. Id. at 1, 18–
24. Also, the Defendant claims that Dr. Chernoff’s opinion is neither consistent with his own
treatment records or the record as a whole. Id. at 21–22. As to Dr. Fulco, the Defendant argues
that the proceeding in which Dr. Fulco provided his opinion concluded in May 2011; that the
Plaintiff did not further appeal the decision in that action; that the issue of the Plaintiff’s
disability status prior to that time is precluded by res judicata; and therefore, the Plaintiff’s
disability status prior to the May 2011 Action is not at issue before the Court. Id. at 22. It
9

further asserts that ALJ Wexler was under no obligation to recontact Dr. Chernoff, and that ALJ
Wexler did not insert her lay opinion, but relied on the evidence in the record. Id. at 23–24. It
reiterates these arguments as to the second issue, “[b]ecause Plaintiff’s second claim of error is
entirely dependent on the issues addressed in his first claim of error.” Id. at 24.
In reply, the Plaintiff asserts that ALJ Wexler applied her own lay analysis of the
evidence in the record, and that the Court should accord her opinion no weight. ECF 22. The
Court addresses each of these arguments in turn.
1. As to Dr. Chernoff
The handling of Dr. Chernoff’s opinion invokes two issues, the treating physician rule,
and an ALJ’s obligation to recontact a treating physician. Under the treating physician rule, the
opinion of a claimant’s treating physician as to the nature and severity of the claimant’s
impairments is given “controlling weight” so long as it is “well supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.” Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003) (quoting 20 C.F.R. § 404.1527(d)(2)); Bonneau v. Astrue, No. 5:13-cv-26, 2014 WL
31301, at *5 (D. Vt. Jan. 3, 2014) (same).
Although the Court is generally required to defer to the medical opinion of a treating
physician, see Schisler v. Sullivan, 3 F.3d 563, 567–68 (2d Cir. 1993), those findings may not be
accorded controlling weight if they are inconsistent with other substantial evidence, including the
opinions of other medical experts, Burgess, 537 F.3d at 128. The ALJ must consider the
following factors if it decides to afford less than controlling weight to the treating physician’s
opinion: “(1) the frequen[c]y, length, nature, and extent of the treatment; (2) the amount of
medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining
10

medical evidence; and (4) whether the physician is a specialist.” Selian v. Astrue, 708 F.3d 409,
418 (2d Cir. 2013).
In order for the Court to determine whether a treating physician’s opinion is consistent
with other substantial evidence in the administrative record, the Court must keep in mind that
“genuine conflicts in the medical evidence are for the ALJ to resolve.” Gunter v. Comm’r of
Soc. Sec., 361 F. App’x 197, 199 (2d Cir. 2010) (Summary Order); see also Garcia v. Barnhart,
No. 01-CV-8300, 2003 WL 68040, at *7 (S.D.N.Y. Jan. 7, 2003) (holding however, that the ALJ
cannot substitute his or her “own assessment of the relative merits of the objective evidence and
subjective complaints for that of a treating physician”).
Here, in summary, the ALJ ruled that the Plaintiff had the residual functional capacity to
perform sedentary work, except that he could never kneel, crouch, or crawl: that he must have
the option to sit or stand for five minutes every half-hour; and, that he could occasionally handle
and finger with his bilateral hands. R. at 436. As to the Plaintiff’s ability to stand and sit, Dr.
Chernoff opined in May 2017 that the Plaintiff “would have difficulty sitting because of his
lower back, and, in my opinion, would have difficulty working even in a sedentary type of
position.” Id. at 817. However, Dr. Chernoff’s treatment records for the relevant period provide
no other comment on the Plaintiff’s ability to sit, and no complaints by the Plaintiff about
experiencing pain while sitting. On the other hand, Dr. Jonathan Raanan, the Plaintiff’s treating
neurosurgeon, observed that the Plaintiff sat comfortably during several examinations between
July 2014 and April 2016. Id. at 781, 784, 790, 793, 796, 799. Also, a physician’s assistant in
Dr. Raanan’s office made a similar observation in June 2016. Id. at 777. At only one point did
Dr. Raanan observe the Plaintiff’s experiencing difficulty sitting, id. at 773, and Dr. Raanan did
not make this observation again over the course of multiple visits.
11

Based on the evidence in the record, the ALJ properly assigned little weight to Dr.
Chernoff’s opinion as to the Plaintiff’s ability to stand and sit. In any event, as ALJ Wexler
noted in her decision, she did take Dr. Chernoff’s opinion into consideration by imposing
limitations on how long the Plaintiff could be expected to sit. Cf. Guadalupe v. Barnhart, No.
04-CV-7644, 2005 WL 2033380, at *6 (S.D.N.Y. Aug. 24, 2005) (noting that “When an ALJ’s
decision adopts the physical limitations suggested by reviewing doctors after examining the
Plaintiff, the claimant’s obesity is understood to have been factored into their decisions”) (citing
Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004)).
As to the Plaintiff’s use of his hands, Dr. Chernoff in his medical narrative opined that
the Plaintiff would have difficulty using his hands because of his carpal tunnel syndrome. R. at
817. However, the only times that Dr. Chernoff tested the Plaintiff for upper extremity strength,
he had given the Plaintiff a result of 5/5, clearly normal. Id. at 328–29. Other evidence in the
record points to the Plaintiff as having generally intact hand functioning, though he struggles
with his grip and the effects of carpal tunnel syndrome.

His hand specialist, Dr. Teresa

Habacker, noted at the Plaintiff’s most recent visit that the Plaintiff experienced a weak grip and
decreased sensitivity in his right hand, but that he also had a full range of motion in that hand,
and that he could make a full fist. Id. at 694. Dr. Dominick Basile, the Plaintiff’s primary care
physician, observed a full range of motion, albeit with pain in the Plaintiff’s right hand, on
multiple occasions, though he also declined to provide a medical opinion as to whether the
Plaintiff could perform work-related activities. Id. at 304, 413, 415, 417, 419. The Plaintiff
testified at a hearing that he is able to use a computer, and that he is able to dice vegetables when
cooking, although he has issues with holding silverware because of hand numbness, and that he
has trouble holding a cell phone. Id. at 45–46.
12

After a review of all of this medical evidence, the Court rules that substantial evidence
supported ALJ Wexler’s determination that the Plaintiff could occasionally handle and finger
with his hands. The above-noted evidence reveals that the Plaintiff, while burdened by carpal
tunnel syndrome and ongoing problems with hand numbness and grip strength, still maintained
the ability to do simple tasks with his hands. See Clyde v. Comm’r of Soc. Sec., No. 18-Civ6209, 2019 WL 4386032, at *5 (S.D.N.Y. Sept. 13, 2009) (ruling that substantial evidence
supported ALJ’s ruling that the plaintiff could frequently handle and finger where the plaintiff
testified that he was able to cook, and where a consultative examiner’s exam was “supported by
objective signs and findings . . . showing Plaintiff was not as significantly limited as alleged”);
see also Pirog v. Colvin, No. 15-Civ-438, 2016 WL 11484450, at *17 (S.D.N.Y. Mar. 7, 2016);
Childs v. Colvin, No. 15-CV-5991, 2017 WL 4685092, at *2 (E.D.N.Y. Oct. 17, 2017) (finding
substantial evidence that the plaintiff could handle or finger with one hand on the plaintiff’s
medical history, his hearing testimony, and the opinions of doctors).
The Court also rules that ALJ Wexler did not insert her own lay opinion into her ruling.
She relied on the above-noted evidence in the record, which, in the Court’s view, provided
substantial evidence for her decision.

See Gerry v. Berryhill, No. 17-CV-7371, 2019 WL

955157, at *4 (E.D.N.Y. Feb. 26, 2019) (noting that because the record contained sufficient
evidence in support of the ALJ’s determination, the ALJ did not rely on his own lay opinion).
2. As to Dr. Fulco
As an initial matter, the Plaintiff cites to Dr. Fulco’s testimony in the May 2011 Action.
ECF 14 at 20 (citing R. at 497, 502). Those cited sections of the record do not show a Dr. Fulco
as having testified on the Plaintiff’s behalf; however, they do show a Dr. “Polco” as having

13

testified. R. at 497, 502. For purposes of clarity, the opinion still refers to the testimony from
the May 2011 Action as coming from Dr. Fulco.
The Court rules that the doctrine of administrative res judicata precluded the ALJ, as
well as this Court, from considering the claims raised and evidence presented in the May 2011
Action. That doctrine applies where “a prior determination on the same facts and issues made by
the Commissioner has become final either by administrative or judicial action.” Navan v. Astrue,
303 F. App’x 18, 20 (2d Cir. 2008) (Summary Order); see Davila v. Comm’r of Soc. Sec., No.
16-CV-4774, 2018 WL 5017748, at *1 (E.D.N.Y. Oct. 16, 2018) (citing Navan).

“The

application of administrative res judicata has been recognized and enforced by the Supreme
Court, and the Second Circuit has deemed it appropriate in Social Security Cases.” Stellacci v.
Barnhart, No. 02-Civ-8875, 2003 WL 22801554, at *5 (citing United States v. Utah Constr. &
Mining Co., 384 U.S. 394, 422, 86 S. Ct. 1545, 16 L. Ed. 2d 642 (1966), and Thompson v.
Richardson, 452 F.2d 911, 913 (2d Cir. 1971).
Given that the Plaintiff received a period of disability as a result of the May 2011 Action,
there was no need to appeal the decision, and it has since become final. See Amato v. Bowen,
739 F. Supp. 108, 111 (E.D.N.Y. 1990); see also Davila, 2018 WL 5017748, at *1 (“Plaintiff did
not appeal or otherwise request review of the 2008 ALJ Decision, and the 2008 ALJ Decision
therefore became final and administrative res judicata applies to her March 3, 2006 claim.”).
Because administrative res judicata applies, the Plaintiff may not invoke evidence raised in the
May 2011 Action.
In the alternative, even if administrative res judicata does not preclude Dr. Fulco’s
opinion, the claim still fails. Dr. Fulco’s opinion addressed the Plaintiff’s disability status during
the period between December 2003 and March 2008. It is a separate matter occurring prior to
14

May 25, 2011, that date that Franco alleges that he again became disabled, and the
Commissioner “is not required to consider evidence predating or postdating the relevant time
period.” Davis v. Colvin, No. 14-CV-6373, 2016 WL 368009, at *2 (W.D.N.Y. Feb. 1, 2016);
see also Colbert v. Comm’r of Soc. Sec., 313 F. Supp. 3d 562, 575–76 (S.D.N.Y. 2018) (“We
reject this argument because these incidents took place prior to her disability onset date of
January 28, 2014, over the course of many years, and thus do not speak directly to her ability to
function socially and maintain relationships during the relevant time frame analysis—that is, the
time between her alleged disability onset date (January 28, 2014) and the date of the ALJ’s
decision (February 1, 2016).”) (internal citations omitted).
3. As to ALJ Wexler’s Duty to Make Additional Inquiries
Where there are deficiencies in the administrative record, an ALJ is under an affirmative
obligation to develop a plaintiff’s medical history, even when the plaintiff is represented by
counsel. Rosa, 168 F.3d at 79. This obligation arises from the “essentially non-adversarial
nature of a benefits proceeding.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (internal
quotation marks omitted).
However, “where there are no obvious gaps in the administrative record, and where the
ALJ already possesses a complete medical history, the ALJ is under no obligation to seek
additional information in advance of rejecting a benefits claim.” Rosa, 168 F.3d at 79 n.5
(internal quotation marks omitted); see Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (2d
Cir. 2013) (Summary Order) (citing case law from other circuits for the proposition that “remand
is not always required when an ALJ fails in his duty to request opinions, particularly in cases
such as this, the record contains sufficient evidence from which an ALJ can assess the
petitioner’s residual functional capacity”); Micheli v. Astrue, 501 F. App’x 26, 30 (2d Cir. 2012)
15

(Summary Order) (“Here, the ALJ properly determined that he could render a decision based on
the 500-page record already before him.”).
An ALJ has “discretion to ‘determine the best way to resolve the inconsistency or
insufficiency’” when an ambiguity arises concerning a treating physician’s opinion. Rolon v.
Comm’r of Soc. Sec., 994 F. Supp. 2d 496, 505 (S.D.N.Y. 2014) (quoting 20 C.F.R. § 416.920b).
While regulations have been amended to remove the provision requiring an ALJ to recontact a
treating physician in the face of an ambiguity, Quinn v. Colvin, 199 F. Supp. 3d 692, 709
(W.D.N.Y. 2016), they still “contemplate the ALJ recontacting the treating physician when the
additional information needed is directly related to that medical source’s opinion.” Owens v.
Berryhill, No. 17-CV-2632, 2018 WL 1865917, at *7 (E.D.N.Y. Apr. 18, 2018) (Spatt, J.)
(internal quotation marks omitted); Jimenez v. Astrue, No. 12-CIV-3477, 2013 WL 4400533, at
*11 (S.D.N.Y. Aug. 14, 2013).
Here, the Court rules first that ALJ Wexler did not need to recontact Dr. Chernoff. The
record reveals that Dr. Chernoff did not make any findings on the Plaintiff’s ability to stand and
sit, and in the limited instances in which he observed the Plaintiff’s hands, he opined that the
Plaintiff had full strength. There is nothing in the record to suggest, and the Plaintiff does not
contend, that Dr. Chernoff made further evaluations as to his ability to stand and sit or use his
bilateral hands.

See, e.g., Muro v. Berryhill, No. 17-CV-6092, 2019 WL 4933612, at *8

(E.D.N.Y. Oct. 7, 2019) (Spatt, J.) (remanding action because “the ALJ . . . should have
recontacted Dr. King for the Plaintiff’s treatment records, instead of deeming Dr. King’s opinion
less persuasive because he had failed to provide them.”).
Second, the Court rules that, based on the doctrine of administrative res judicata, ALJ
Wexler should not have contacted Dr. Fulco for further information as to his testimony from a
16

case that had already become final. In any event, ALJ Wexler was not obligated to contact Dr.
Fulco to elaborate on testimony given prior to the relevant time period in this case. Third, the
Court rules that ALJ Wexler was under no obligation to seek the counsel of a medical advisor or
order a post-hearing consultative examination. See Watson v. Berryhill, No. 18-cv-1636, 2019
WL 5592854, at *8 (E.D.N.Y. Oct. 30, 2019) (Spatt, J.) (ruling that ALJs have the discretion, not
the obligation, to seek an updated consultative examination of a plaintiff); Faith Grace P. v.
Saul, No. 18-CV-781, 2019 WL 4305484, at *7 (N.D.N.Y. Sept. 11, 2019); Gonzalez v. Colvin,
No. 15-CV-2159, 2016 WL 5477591, at *12 n.3 (E.D.N.Y. Sept. 28, 2016) (“[A]lthough ALJs
may consult medical experts, they are not required to do so.”); see also Cole v. Astrue, No. 06CV-769, 2013 WL 4398974, at *4 (S.D.N.Y. Aug. 7, 2013) (“Plaintiff provides no support for
his claim that [the ALJ] was required to consult an expert in addition to reviewing the medical
evidence in the record.”) (emphasis in original).
4. As to the Vocational Expert
Briefly, the entirety of the Plaintiff’s second issue is that, because ALJ Wexler ruled
incorrectly as to the Plaintiff’s residual functional capacity, she was also incorrect to rely on the
testimony of a vocational expert that the Plaintiff could work as a surveillance system monitor or
call out operator. The Plaintiff thus only makes arguments as to Step Four of the sequential
evaluation process, pertaining to his residual functional capacity, and not as to Step Five, which
would have raised issues as to what particular jobs the Plaintiff could perform. The Court thus
denies the Plaintiff’s second claim because it has already ruled that substantial evidence supports
ALJ Wexler’s determination as to the Plaintiff’s residual functional capacity.

17

III.

CONCLUSION
For the foregoing reasons, the Court denies the Plaintiff’s Rule 12(c) motion, grants the

Defendant’s Rule 12(c) cross-motion, and dismisses the complaint.
The Clerk of Court is respectfully directed to close the case.

It is SO ORDERED.

_________/s/ Artur D. Spatt __________

___November 21, 2019___

Arthur D. Spatt, U.S.D.J.

Date

18