Friedel v. Saul
MEMORANDUM DECISION & ORDER: that the decision of the Commissioner is AFFIRMED and this case DISMISSED; and that the Clerk enter judgment for DEFENDANT. Signed by US Magistrate Judge Andrew T. Baxter on 4/27/2021. (see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
COMMISSIONER OF THE SOCIAL SECURITY
JUSTIN GOLDSTEIN, ESQ., for Plaintiff
CHRISTOPHER LEWIS POTTER, Special Asst. U.S. Attorney for Defendant
ANDREW T. BAXTER, U.S. Magistrate Judge
MEMORANDUM DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in
accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.
Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 5, 7).
On February 24, 2017, plaintiff protectively filed an application for disability
insurance benefits (“DIB”), alleging disability beginning July 7, 2015.1 (Administrative
Transcript (“T”) at 15, 17, 68, 70, 165). Her application was denied initially on May
10, 2017. (T. 68-81). At plaintiff’s request, Administrative Law Judge (“ALJ”)
Gretchen Mary Greisler conducted a hearing on March 8, 2019, at which plaintiff
The court notes that there appears to be a typographical error in the ALJ’s decision. She
initially states that plaintiff’s date of onset is July 15, 2015. (T. 15). However, it is clear from later in
the ALJ’s opinion and from the record that the alleged date of onset is July 7, 2015. (See T. 17, 70).
The discrepancy is not relevant to this court’s decision.
testified.2 (T. 40-67). Vocational expert (“VE”) Joseph Atkinson testified remotely. (T.
44, 61-66). On March 15, 2019, ALJ Greisler issued an unfavorable decision. (T. 1524). The ALJ’s decision became the Commissioner’s final decision when the Appeals
Council denied plaintiff’s request for review on March 17, 2020. (T. 1-5).
GENERALLY APPLICABLE LAW
A. Disability Standard
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI
disability benefits must establish that he is “unable 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 twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In
addition, the plaintiff’s
physical or mental impairment or impairments [must be] of such severity
that he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be hire
if he applied for work
42 U.S.C. § 1382(a)(3)(B). The Commissioner uses a five-step process, set forth in 20
C.F.R. sections 404.1520 and 416.920, to evaluate disability insurance and SSI
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
Plaintiff was represented by non-attorney representative Matthew F. Nutting. (T. 116).
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 meets or equals the criteria of an impairment listed in Appendix 1 of
the regulations. If the claimant has such an impairment, the
[Commissioner] will consider him disabled with-out considering
vocational factors such as age, education, and work experience…
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe impairment, he has the
residual functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,
416.920. The plaintiff has the burden of establishing disability at the first four steps.
However, if the plaintiff establishes that his impairment prevents him from performing
his past work, the burden then shifts to the Commissioner to prove the final step. Id.
B. Scope of Review
In reviewing a final decision of the Commissioner, a court must determine
whether the correct legal standards were applied and whether substantial evidence
supported the decision. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Brault v.
Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012). It must be “more than a scintilla” of evidence scattered throughout the
administrative record. Id. However, this standard is a very deferential standard of
review, “even more so than the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.
“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 on behalf of Williams v. Bowen, 859 F.2d
255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its
interpretation of the administrative record for that of the Commissioner, if the record
contains substantial support for the ALJ’s decision. Id. See also Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting evidence
in the record. See, e.g., Monguer v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (Finding we are unwilling to require an
ALJ explicitly to reconcile every conflicting shred of medical testimony). However, the
ALJ cannot “pick and choose evidence in the record that supports his conclusions.”
Cruz v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09CV-6279, 2010 WL 5072112 (W.D.N.Y. Dec. 6, 2010).
Plaintiff was born on October 12, 1980 and was 34 years old on her alleged onset
date of July 7, 2015.3 (T. 45). Plaintiff lived in a house with her husband and three
children, ages 15, 9, and 6. (T. 45). Plaintiff is right-handed. (Id.) Plaintiff testified
that she last worked at NBT Bank as a customer service representative, a job where she
was required to answer telephone calls regarding customers’ accounts. (Id.) Plaintiff
previously worked at a residence for individuals with developmental disabilities, where
Plaintiff was 38 years old at the time of the ALJ’s hearing. (T. 45).
she performed cleaning services and assisted clients with activities such as showering
and dressing. (T. 49). Plaintiff also worked as a hairdresser. (T. 50).
Plaintiff stopped working at NBT Bank because she could no longer perform the
typing required due to carpal tunnel syndrome (“CTS”). (T. 50). Plaintiff testified that
she had constant numbness, tingling, and pain in both hands, but it was more
pronounced on the right side. (T. 52). Plaintiff had three CTS surgeries on her right
hand and testified that she spoke to the doctor about having surgery on the left side, but
she was worried about the outcome. (T. 53). Plaintiff testified that she had not been
back to the specialist about her hands since 2017 because he told her that there was
nothing more he could do for her. (T. 60-61).
Plaintiff stated that in order to “grab a pen,” she had to pick it up with her left
hand and put it in her right hand between her index, middle, ring finger, and thumb. (T.
53-54). Plaintiff testified that she did not write “grocery lists” very often. She taught
herself to write with her left hand, but the writing looked sloppy. (T. 54). Plaintiff
stated that she could only use a keyboard for ten to fifteen minutes before her “hand”4
went numb. (Id.) Plaintiff testified that she had “complications” when buttoning,
buckling, or using a zipper. (Id.) Plaintiff stated that she used her ring finger and tried
to hold her thumb down, but sometimes she just used her left hand to zip and button. (T.
Sometimes, plaintiff asked her husband for assistance. (T. 55). Plaintiff
described one instance during which she had to ask her husband’s assistance because
Plaintiff did not state to which hand she was referring. (T. 54).
the zipper was “stuck,” and plaintiff could not zip it with either hand. (Id.) Plaintiff
described modifications she made for brushing her hair and putting it in a ponytail. (Id.)
She testified that more than half of her right hand was numb, and that her left hand
would also get numb if she did “too much” with it. (T. 56).
Plaintiff testified that, although she had a driver’s license, she did not drive “long
distances,” making her husband drive instead. (T. 56). However, she stated that when
she drove, she used her left hand, holding the bottom of the steering wheel with a “light
grip.” (Id.) Plaintiff stated that she drove herself 35 to 40 minutes to the hearing
without problems. (Id.) She stated that she just had to try to switch hands “every once
in a while.” (T. 56-57). Plaintiff testified that she could lift between 10 and 15 pounds.
(T. 57). Plaintiff stated that opening things was difficult for her. (T. 57). She stated
that she tried to open bottles with her right hand first because “they” told her not to stop
using her right hand and to try doing things with that hand. (T. 57-58). However, if she
was unsuccessful at opening the bottle with either hand, she asked one of her children
to help. (T. 58). Plaintiff testified that she was able to do household chores by using
her left hand to vacuum and put laundry in the washer and the drier. (T. 58). She found
it difficult to hold a broom and did not carry the laundry in a basket. (Id.)
Plaintiff also discussed her depression, which was treated only by her primary
care providers. (T. 59). She took medication which helped “a little bit,” although there
were approximately four days per week that she felt as if she did not “want to be
associated with anybody.” (Id.) Plaintiff stated that she “fought it off” when she had
her children and “put it on the back burner,” but she finally began taking medication.
(T. 60). Plaintiff testified that she had been “on and off” medication for depression
since 2000. (Id.) She stated that her symptoms “came back” after her first CTS surgery
in July of 2015. (T. 59). Plaintiff stated that her primary care physician has not
suggested any other therapy or treatment for plaintiff’s depression. (T. 60). Plaintiff’s
primary care physician monitors the medication that plaintiff takes for depression and
adjusts it when necessary. (Id.)
Plaintiff’s counsel has summarized some of the medical evidence of record.
(Plaintiff’s Brief (“Pl.’s Br.”) at 2-13) (Dkt. No. 12). There are a substantial number of
relevant medical records in the file. However, rather than discussing the medical
records at the outset, I will refer to the pertinent records during my analysis of the
THE ALJ’S DECISION
At step one of the sequential evaluation, the ALJ found that plaintiff had not
engaged in substantial gainful activity since July 7, 2015. (T. 17). At step two, the ALJ
found that plaintiff had the following severe impairments: bilateral CTS, obesity, and
adjustment disorder. (Id.) The ALJ found that plaintiff’s remaining impairments were
not severe. (Id.) At step three of the evaluation, the ALJ found that the severity of
plaintiff’s impairments, either alone or in combination, did not meet or equal the
severity of a Listed Impairment. (T. 17-19). In making this determination, the ALJ
considered Listing 11.14 (peripheral neuropathy) and considered plaintiff’s obesity in
accordance with Social Security Ruling (“SSR”) 02-1p. (T. 18). The ALJ considered
plaintiff’s mental impairment using Listing 12.04 (depressive, bipolar, and related
At step four, the ALJ found that plaintiff had the RFC for light work, except that
she can lift up to 15 pounds occasionally; can frequently
handle and feel with both hands and can frequently finger
with the non-dominant hand, but only occasionally finger with
the dominant hand; can frequently reach; can perform simple,
routine and repetitive tasks in a work environment free of fast
paced production requirements, involving only simple workrelated decisions and few, if any, workplace changes; and
cannot climb ladders, ropes or scaffolds or work at
unprotected heights or in close proximity to dangerous
(T. 19). The ALJ determined that plaintiff’s statements regarding her symptoms were
not consistent with the medical and other evidence of record. (T. 20). The ALJ
considered the clinical findings, the lack of specialized treatment for her hands since
2017, the lack of any specialized mental health treatment since her date of onset, and
her ability to perform a variety of activities of daily living. (Id.)
ISSUES IN CONTENTION
Plaintiff raises the following arguments in support of her position that the ALJ’s
decision is not supported by substantial evidence:
The ALJ’s RFC determination is not supported by substantial evidence.
(Pl.’s Br. at 15-23).
The ALJ’s evaluation of plaintiff’s subjective claims was not supported by
substantial evidence. (Pl.’s Br. at 23-25).
Defendant argues that the Commissioner’s decision is supported by substantial
evidence. (Defendant’s Brief (“Def.’s Br.”) at 3-21) (Dkt. No. 13). For the following
reasons, this court agrees with the defendant and will affirm the Commissioner’s
RFC EVALUATION/DUTY TO DEVELOP RECORD
RFC is “what [the] individual can still do despite his or her limitations.
Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis. . . .” A “regular
and continuing basis” means eight hours a day, for five days a week, or an equivalent
work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2
(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)
(quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v. Berryhill, No. 5:17-CV00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018); Tankisi v.
Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.
Supp. 3d 349, 361 (N.D.N.Y. 2016).
In rendering an RFC determination, the ALJ must consider objective medical
facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s
subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R.
§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)
(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.
Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL 587459, at *8 (N.D.N.Y. Feb 13, 2019);
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An ALJ must specify the functions
plaintiff is capable of performing, and may not simply make conclusory statements
regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241, 267
(N.D.N.Y. 2010); Martone v. Apfel, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler,
728 F.2d 582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183, Stephens v.
Colvin, 200 F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v. Comm’r of Soc. Sec.,
307 F. Supp. 2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must also include a
narrative discussion, describing how the evidence supports the ALJ’s conclusions,
citing specific medical facts, and non-medical evidence. Natashia R. v. Berryhill, No.
3:17-CV-01266 (TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing
SSR 96-8p, 1996 WL 374184, at *7).
Weight of the Evidence
In making a disability determination, the ALJ weighs all the evidence of record
and carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL
374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues
are not “medical issues,” but are “administrative findings.” The responsibility for
determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL
374183, at *2. These issues include whether the plaintiff’s impairments meet or equal a
listed impairment; the plaintiff’s RFC; how the vocational factors apply; and whether
the plaintiff is “disabled” under the Act. Id.
In evaluating medical opinions on issues that are reserved to the Commissioner,
the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The
ALJ must clearly state the legal rules that he applies and the weight that he accords the
evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL 3776382, at *2
(S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324, 2012 WL
3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).
Evaluation of Symptoms
In evaluating a plaintiff’s RFC for work in the national economy, the ALJ must
take the plaintiff’s reports of pain and other symptoms into account. Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010). The ALJ must “‘carefully consider’” all the evidence
presented by claimants regarding their symptoms, which fall into seven relevant factors
including ‘daily activities’ and the ‘location, duration, frequency, and intensity of
[their] pain or other symptoms.’” Del Carmen Fernandez v. Berryhill, No. 18-CV-326,
2019 WL 667743, at *9 (S.D.N.Y. Feb. 19, 2019) (citing 20 C.F.R. § 404.1529(c)(3);
SSR 16-3p, Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 FR
14166-01 at 14169-70, 2016 WL 1020935 (Mar. 16, 2016)).
In 2016, the Commissioner eliminated the use of term “credibility” from the
“sub-regulatory policy” because the regulations themselves do not use that term. SSR
16-3p, 81 FR at 14167. Instead, symptom evaluation tracks the language of the
regulations.5 The evaluation of symptoms involves a two-step process. First, the ALJ
must determine, based upon the objective medical evidence, whether the medical
impairments “could reasonably be expected to produce the pain or other symptoms
alleged . . . .” 20 C.F.R. §§ 404.1529(a), (b); 416.929(a), (b).
If so, at the second step, the ALJ must consider “‘the extent to which [the
The standard for evaluating subjective symptoms has not changed in the regulations. Rather,
the term “credibility” is no longer used, and SSR 16-3p makes it clear that the evaluation of the
claimant’s symptoms is not “an evaluation of the claimant’s character.” 81 FR at 14167. The court will
remain consistent with the terms as used by the Commissioner.
claimant’s] alleged functional limitations and restrictions due to pain or other
symptoms can reasonably be accepted as consistent with the [objective medical
evidence] and other evidence to decide how [the claimant’s] symptoms affect [her]
ability to work.’” Barry v. Colvin, 606 F. App’x 621, 623 (2d Cir. 2015) (citing inter
alia 20 C.F.R. § 404.1529(a); Genier v. Astrue, 606 F.3d at 49) (alterations in original).6
If the objective medical evidence does not substantiate the claimant’s symptoms,
the ALJ must consider the other evidence. Cichocki v. Astrue, 534 F. App’x 71, 76 (2d
Cir. 2013) (citing superceded SSR 96-7p). The ALJ must assess the claimant’s
subjective complaints by considering the record in light of the following symptomrelated factors: (1) claimant’s daily activities; (2) location, duration, frequency, and
intensity of claimant’s symptoms; (3) precipitating and aggravating factors; (4) type,
dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5)
other treatment received to relieve symptoms; (6) any measures taken by the claimant to
relieve symptoms; and (7) any other factors concerning claimant’s functional
limitations and restrictions due to symptoms. 20 C.F.R. §§ 404.1529(c)(3),
The ALJ must provide specific reasons for the determination. Cichocki v. Astrue,
534 F. App’x at 76. However, the failure to specifically reference a particular relevant
factor does not undermine the ALJ’s assessment as long as there is substantial evidence
supporting the determination. Id. See also Del Carmen Fernandez v. Berryhill, 2019
The court in Barry also cited SSR 96–7p, 1996 WL 374186, at *2 (July 2, 1996), which was
superceded by SSR 16-3p. As stated above, the factors considered are the same under both rulings.
The 2016 ruling has removed the emphasis on “credibility.”
WL 667743 at *11 (citing Rousey v. Comm’r of Soc. Sec., 285 F. Supp. 3d 723, 744
(S.D.N.Y. 2018)). “[R]emand is not required where ‘the evidence of record allows the
court to glean the rationale of an ALJ’s decision.’” Cichocki v. Astrue, 534 F. App’x at
76 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)).
Duty to Develop the Record
Given the non-adversarial nature of a Social Security hearing, “[t]he duty of the
ALJ, unlike that of a judge at trial, is to ‘investigate and develop the facts and develop
the arguments both for and against the granting of benefits.’” Martin v. Comm’r of Soc.
Sec., No. 18-CV-720(MWP), 2020 WL 611015, at *4 (W.D.N.Y. Feb. 10, 2020) (citing
Vincent v. Comm’r of Soc. Sec., 651 F.3d 299, 305 (2d Cir. 2011) (quoting Butts, 388
F.3d 377, 386 (2d Cir. 2004)); 20 C.F.R. §§ 404.1512 (d), 416.912(d) (“We will make
every reasonable effort to help you get medical reports from your own medical sources
when you give us permission to request the reports.”).
Thus, before determining whether the ALJ’s conclusions are supported by
substantial evidence, a court must first evaluate whether the claimant was provided a
full hearing “in accordance with the beneficent purposes of the [Social Security] Act.”
Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982); see
Dougherty-Noteboom v. Berryhill, No. 17-CV-243, 2018 WL 3866671, *7 (W.D.N.Y.
2018) (ALJ’s duty to develop the record “is a threshold requirement for the SSA; the
ALJ must develop the record prior to assessing whether a claimant is disabled”); see
also Archbald v. Colvin, No. 14-CV-07569, 2015 WL 7294555, *3 (E.D.N.Y. 2015)
(“[t]he reviewing court must ensure that ‘all of the relevant facts [are] sufficiently
developed and considered’ ”) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503,
509 (2d Cir. 2009)).
Furthermore, “[t]he duty of an ALJ to develop the record is ‘particularly
important’ when obtaining information from a claimant’s treating physician due to the
‘treating physician’ provisions in the regulations.” Dickson v. Astrue, No. 1:06-CV-511
(NAM/GHL), 2008 WL 4287389, at *13 (N.D.N.Y. Sept.17, 2008). In furtherance of
the duty to develop the record, an ALJ may re-contact medical sources if the evidence
received from the treating physician or other medical sources is inadequate to determine
disability, and additional information is needed to reach a determination. 20 C.F.R. §§
404.1512(e), 416.912(e).7 Although the ALJ must attempt to fill in any “clear gaps” in
the administrative record, “where there are no obvious gaps . . . and where the ALJ
already possesses a ‘complete medical history,’” the ALJ is under no obligation to seek
additional information. Rosa v. Callahan, 168 F.3d at 79, n.5.
The ALJ found that plaintiff could perform “light work” with additional
limitations as stated above. (T. 19-22). Plaintiff first argues that the ALJ “failed to
identify evidence supporting the ability to perform a range of sedentary work, and the
ALJ failed to explain how the RFC finding was supported by the evidence.” (Pl.’s Br. at
Effective March 26, 2012, the Commissioner amended these regulations to remove
former paragraph (e) and the duty it imposed on ALJs to re-contact a disability claimant’s
treating physician under certain circumstances. The current regulations apply to plaintiff’s case.
See Jimenez v. Astrue, No. 12 Civ. 3477, 2013 WL 4400533, at *11 (S.D.N.Y. Aug. 14, 2013)
(noting that even though the regulations were amended to remove the provision requiring the
ALJ to recontact a treating physician to resolve an ambiguity in the record, the regulations still
“contemplate the ALJ recontacting the treating physicians when ‘the additional information
needed is directly related to that source’s medical opinion’”).
15) (emphasis added). Plaintiff does not elaborate on this argument.8 However, simply
because the ALJ found that plaintiff could perform less than the full range of light work
due to her additional limitations does not mean that the ALJ must evaluate whether
plaintiff can do sedentary work. See William J.D. v. Comm’r of Soc. Sec., No. 1:17-CV981 (DEP), 2018 WL 6671533, at *7 (N.D.N.Y. Dec. 19, 2018). In William J.D.,
Magistrate Judge Peebles held that the mere fact that the ALJ found plaintiff capable of
performing less than a full range of light work, “in no way eliminates every occupation
listed in the Dictionary of Occupational Titles at the light exertional level. Instead, ‘an
ALJ can properly find a claimant capable of performing a limited range of work in a
given exertional category and then elicit [vocational expert] testimony to determine
whether that claimant is disabled,’ as was done in this instance by the ALJ.” Id.
(quoting Gravel v. Barnhart, 360 F. Supp. 2d 442, 448 (N.D.N.Y. 2005) (Sharpe, J.)
(citing SSR 83-12, 1983 WL 31253 (1983)) (footnote omitted) (alteration in original).
In this case, the ALJ found that plaintiff could perform a limited range of light
work due to her manipulative and other limitations and then consulted a VE to
determine whether there were jobs in the light work category that plaintiff could still
perform. The VE found that such jobs were available. Thus, the ALJ was not required
to also determine that plaintiff could perform sedentary work.9 The court will now turn
It is unclear whether this is a typographical error by plaintiff because counsel spends most of
his brief discussing the ALJ’s alleged failure to support her RFC finding because of plaintiff’s
additional manipulative limitations, related to light work. However, defense counsel addressed the
argument regarding the ALJ’s failure to support a “sedentary work” finding. (Def.’s Br. at 3). Thus, the
court has done the same.
Manipulative limitations may be more critical in sedentary work. Social Security Ruling
(“SSR”) 96-9p (most unskilled sedentary jobs require good use of both hands and fingers, bilateral
to the ALJ’s specific RFC finding.
Plaintiff states that the ALJ gave great weight to the consultative opinion of Dr.
Gilbert Jenouri when establishing plaintiff’s RFC. Plaintiff argues that Dr. Jenouri’s
opinion is too vague to constitute substantial evidence supporting the ALJ’s finding
that plaintiff could lift up to fifteen pounds, could frequently handle and feel with both
hands, could frequently finger with the non-dominant hand but only occasionally finger
with the dominant hand, and could frequently reach. (Pl.’s Br. at 16).
Plaintiff argues that Dr. Jenouri did not provide a function-by-function
assessment of plaintiff’s manipulative limitations, and without any other evidence, the
ALJ was without substantial evidence to make such specific findings regarding
plaintiff’s manipulative abilities. (Pl.’s Br. at 16-17). This resulted in the ALJ
improperly substituting her interpretation of the “raw medical evidence.” (Id.) Plaintiff
argues that the ALJ should have re-contacted Dr. Jenouri and plaintiff’s treating
medical providers. (Pl.’s Br. at 21). This court does not agree.
In this case, no treating physician, specialized or general provider, submitted a
medical source statement setting forth specific restrictions on plaintiff’s ability to
perform work related functions. However, “such evidence is not required when the
record contains sufficient evidence from which an ALJ can assess the [claimant’s]
residual functional capacity.” See Cook v. Comm’r of Soc. Sec., 818 F. App’x 108, 109
(2d Cir. 2020) (internal citations omitted); Monroe v. Comm’r of Soc. Sec., 676 F.
manual dexterity). However, simply because plaintiff has manipulative restrictions, limiting the full
range of light work, does not foreclose finding that plaintiff can perform light work based upon the
App'x 5, 8 (2d Cir. 2017) (where “the record contains sufficient evidence from which
an ALJ can assess the [plaintiff’s] residual functional capacity, a medical source
statement or formal medical opinion is not necessarily required.”)
Although the ALJ’s RFC did not mirror a medical source statement, the ALJ
considered the opinions in the record and weighed the conflicting evidence. The ALJ
gave “great weight” to Dr. Jenouri’s consultative opinion. (T. 21). In his report, Dr.
Jenouri stated that plaintiff had “[m]ild to moderate restrictions, lifting, carrying, and
grasping with both hands.” (T. 396). Such descriptions have been in some situations
criticized for being too “general.” See Selian v. Astrue, 708 F.3d 409 (2d Cir. 2013).
However, the Second Circuit has held that these more general descriptions may
substantiate the ALJ’s RFC determination when the ALJ’s conclusion is supported by
other evidence she considered. Johnson v. Colvin, 669 F. App’x 44, 46-47 (2d Cir.
2016). See Marie W. v. Comm’r of Soc. Sec., No. 1:19-CV-1053, 2021 WL 431656, at
*4 (W.D.N.Y. Feb. 8, 2021) (finding that even “moderate” limitations in reaching and
other postural limitations are consistent with the ability to perform light work); Amons
v. Astrue, 617 F. Supp. 2d 173, 176 (W.D.N.Y. 2009) (RFC for light work with
occasional fingering and reaching supported by medical opinion plaintiff had moderate
limitations in walking, standing, squatting, climbing and reaching and moderate to
marked limitations in fine hand motor work and frequent repetitive motion).
The ALJ noted that plaintiff testified that she could lift between 10 and 15
pounds. (T. 57). While plaintiff had some problems with her non-dominant left hand,
her more substantial limitations were on her right side. At the hearing, plaintiff
testified that she was able to perform a variety of daily activities with some
modifications and with some limitations.10 (T. 53-59). Although plaintiff testified that
she had difficulty buttoning and zipping, Dr. Jenouri found that plaintiff was able to
“zip, button, and tie.” (T. 54-55, 395). Plaintiff also testified that she was told “not to
stop using [her right hand].” (T. 57).
There is no question that plaintiff has CTS, that three surgeries have been
necessary to improve her abilities, and that she does have some residual functional
limitations in both of her hands, more on the right side. The ALJ accounted for such
limitations in her decision. Plaintiff’s last surgery was in December of 2015.11
Although plaintiff properly cites the medical records, which discuss plaintiff’s
limitations, counsel has failed to cite other portions of the same records which show
that plaintiff had improved after her December 2015 surgery. Conflicting evidence is
for the ALJ to resolve. Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).
For example, plaintiff cites a report, dated January 4, 2016 for the proposition
In her decision, the ALJ stated that in May of 2016, plaintiff told her treating source that she
was “‘doing most of her normal activities, modifying things as she needs to.’” (T. 21) (citing T. 356).
For the first time, plaintiff argues that the court should remand for the ALJ to consider a
“closed period” of disability from July of 2015 until her last appointment with Dr. Fatti in May of 2017
or later. (Pl.’s Br. at 18-20). Defendant argues that any request for consideration of a closed period has
been waived because plaintiff did not assert such a claim before the agency. Defendant’s position is
supported by recent case law. See Melinda J.C. v. Comm’r of Soc. Sec., No. 19-CV-1618, 2021 WL
766860, at *6 (W.D.N.Y. Feb. 26, 2021) (citing Ghio v. Astrue, No. 10-CV-62, 2011 WL 923419, at
*19 (D. Vt. Mar. 1, 2011) (“Given [the plaintiff’s] failure to raise this issue before the ALJ, and failure
to amend her claim to request a closed period of disability, the Court need not consider it.”); Wenner
o/b/o A.R.L.D. v. Comm’r of Soc. Sec., No. 18-CV-826 (JJM), 2019 WL 7288507 at *8 n. 6 (W.D.N.Y.
Dec. 30, 2019)). In any event, as discussed below, plaintiff has neglected to cite relevant portions of
the medical records which show improvement during the relevant period with treatment,
notwithstanding continued impairment which resulted in the multiple surgeries. (See e.g. T. 283)
(plaintiff’s strength was significantly reduced on the right side, the doctor stated that plaintiff still had
significant symptoms which impacted her functional abilities, but was making some slow gains).
that plaintiff had ongoing swelling and decreased extension. (Pl.’s Br. at 8). However,
in the same report, treating Nurse Practitioner (“NP”) Terri J. Doolittle stated that
although plaintiff’s numbness was only “slightly better,” her thumb and index finger
were “significantly better.” (T. 366). While plaintiff’s “aggressive” physical therapy
helped only for a while, and she had swelling and decreased extension of her thumb,
“[o]verall, her motion seems to be improvement [sic]” except for extension of the MP
joint of her thumb. (T. 366). Although there was decreased sensation in the median
nerve distribution, her index finger flexion was “significantly improved.” (T. 367). On
December 21, 2015, plaintiff reported that her numbness and tingling were “better.” (T.
372). Her neurovascular status was “intact.” There was “mild swelling, but her index
finger flexion was “significantly improved.” (T. 373). Plaintiff was doing well in
physical therapy, working aggressively, during therapy and at home. (T. 374). On
December 28, 2015, NP Doolittle stated that plaintiff told her she was making “good
progress,” and NP Doolittle found that plaintiff’s neurovascular status was “intact.” (T.
On May 16, 2016, plaintiff reported that she had trouble abducting, making it
difficult for her to grasp and pick things up, but had somewhat improved since surgery.
(T. 354). NP Doolittle noted that plaintiff knew that she might not get much better, but
as stated above, plaintiff reported that she was able to do most of her normal activities,
modifying as needed. (T. 355-56). On January 25, 2017, Dr. Fatti, plaintiff’s treating
orthopedic physician found that plaintiff was “doing better.” (T. 336). Her motion was
better, and her pain was “better,” even though she still had significant numbness in the
ulnar nerve distribution in her right upper extremity. (Id.) Her alignment was “normal,”
there was no atrophy, no deformity, and no swelling. (T. 336-37). There was some soft
tissue tenderness, and the motion of her wrist was “mildly” limited by pain and
swelling. (T. 337). Strength testing was 4/5 on the right side, with no atrophy or elbow
instability. (Id.) This was the only time that Dr. Fatti did any strength testing, but the
court notes that Dr. Fatti’s finding in January of 2017 was consistent with Dr. Jenouri’s
May 5, 2017 report, in which he found that plaintiff’s grip strength was 4/5 on the right
and 5/5 on the left. (T. 395). In addition to finding that plaintiff could zip, button, and
tie, Dr. Jenouri found that plaintiff’s finger dexterity was intact except for her
“difficulty” in touching her pinky to thumb on the right side. (Id.)
On April 27, 2017, plaintiff’s nerve conduction study showed normal conduction
of the right ulnar nerve from above the elbow to the hand. (T. 436). The study also
showed “improved conduction” of the right median nerve from the wrist to hand
segment over previous electrical testing. (Id.) All other nerve conduction studies in the
right upper extremity were normal. (Id.) Electromyography of the muscles innervated
by the ulnar and cervical 8 root showed no evidence of muscle membrane instability at
rest and demonstrated normal motor units on volition. (Id.) The “assessment” was pain
and paresthesia right upper extremity.12 (Id.) Plaintiff’s physical examination showed
that the “[s]trength of the right upper extremity, other than right thumb abduction,
appeared intact. Sensation was reported altered to light touch in the right thumb, index,
and middle fingers only.” (T. 434).
This report was authored by Michael P. Bome, PT, who worked with plaintiff’s specialists at
Syracuse Orthopedic Specialists. (T. 434).
Plaintiff’s last appointment with Dr. Fatti was on May 23, 2017. (T. 433). Dr.
Fatti found decreased motion of the MP13 joint of plaintiff’s thumb, and the IP14 joint
was also limited. Dr. Fatti found that plaintiff could barely touch the tip of her thumb
to her forefinger, could not pinch, and had decreased sensation in her median and ulnar
nerve distribution. (T. 433).
However, Dr. Fatti also noted the normal and improved nerve conduction studies.
(Id.) Dr. Fatti stated that plaintiff had been seen at the “pain clinic,” and a nerve block
was suggested for her hands and wrists, but plaintiff was not interested in this. (Id.) Dr.
Fatti suggested that plaintiff go back to the pain clinic to see “if they have anything else
to offer.” (Id.) Plaintiff told Dr. Fatti that she would let him know, but in the meantime
she was going to continue with her conservative treatment and follow up with Dr. Fatti
on an “as needed basis.”15 (Id.) Plaintiff did not return to Dr. Fatti, and she did not take
The MP or MCP joint of the thumb “is a hinge joint that allows up to 80 to 90 degrees of
flexion with minimal extension, adduction, or abduction.” https://www.ncbi.nlm.nih.gov/books/
NBK538428/. This joint allows an individual to bend and extend her thumb. https://www.assh.org/
Interphalangeal Joint (IP). It is located at the tip of the finger just before the fingernail starts.
Various of Dr. Fatti’s reports assessed a degree of disability, anywhere from 50% to 100%.
(see e.g. T. 433 - (50% on 5/23/17), 341- (50% on 12/15/16), 353 - (50% on 6/27/16), 368 - (100% on
1/4/16 -shortly after her last surgery)). The ALJ correctly stated that she gave “little weight” to such
conclusions because they did not include a function-by-function assessment of the plaintiff’s abilities
and address an ultimate issue (“disability”) which is reserved for the Commissioner. A percentage of
disability is not relevant or binding for social security purposes. See e.g. Fortuna v. Saul, No. 19 Civ.
11066 (JCM), 2021 WL 961798, at *23 (S.D.N.Y. Mar. 15, 2021) (citations omitted). The court in
Fortuna noted that it was error to disregard a physician’s functional assessment simply because it was
rendered in conjunction with an examination for another agency, while recognizing that percentages of
disability were not relevant to the social security analysis. Id. (citations omitted). On February 26,
2016, in the same section in which he was estimating percentages of “disability,” Dr. Fatti stated that
plaintiff was “unable to do her current job” because of the repetitive activity required with her right
upper extremity. (T. 362) (emphasis added). The ALJ agreed that plaintiff could not perform her
“current” job. Thus, the ALJ’s decision to reject the treating physician’s percentage of disability
his suggestion to go to the pain specialist. Plaintiff testified at her hearing that she had
not seen the hand specialist since 2017 because he said that there was nothing more
they could do for her. (T. 60-61).
In her decision, the ALJ relied, in part, on plaintiff’s failure to follow up with her
hand specialist and her failure to take Dr. Fatti’s suggestion to go back to the pain clinic
to evaluate whether a nerve block would help. (T. 20-21). The ALJ also correctly noted
that plaintiff’s subsequent primary care records did not show any ongoing signs of
distress or deficits in strength, sensation, or fine manipulative functioning. (T. 21). The
court notes that occasional is defined as occurring up to one third of the work day, or
approximately two hours. See Daragjati v. Colvin, No. 14 Civ. 2727 (BMC), 2015 WL
427944, at *9 (E.D.N.Y. Jan. 31, 2015). Thus, by limiting plaintiff’s RFC to frequent
feeling and handling with both hands, frequent fingering with her non-dominant hand,
but only “occasional” fingering with her right hand, the ALJ accounted for plaintiff’s
limitations in her RFC.
A review of plaintiff’s primary care records after April of 2017 supports the
ALJ’s determination. (T. 446-504). Most of plaintiff’s primary care records, beginning
November 7, 201716 involve follow-up appointments for plaintiff’s depression and
other impairments, unrelated to plaintiff’s hands. (T. 481, 479, 469, 464, 451). On
December 22, 2017, plaintiff saw her primary care provider for “depression” and
findings was supported by substantial evidence.
Plaintiff was seen by one of her primary care providers (F.N.P. Sarah Singler) on May 12,
2017, but the examination was for an upper respiratory infection, and there was no mention of her CTS
or her hand pain and numbness. (T. 486-89).
“epigastric pain.” (T. 475). In the “History of Present Illness,” plaintiff stated that she
was not sleeping well “due to pain in hand (states nerve damage in hand).”17 (T. 475).
However, the subject of the provider’s note was plaintiff’s depression, not any issues
that she was having with her hand, and the point of the provider’s summary was that
plaintiff was under stress which contributed to her mental state. (Id.) The reference to
plaintiff’s hand related to her inability to “sleep well” which also contributed to her
Other than mentioning plaintiff’s history of CTS under “problem list,” the only
significant statements that were related to plaintiff’s hands were made on January 19,
and June 22, 2018, by treating provider, Physician Assistant (“PA”) Carrie Anne Pisani,
who reported that plaintiff’s chronic nerve pain had been “better” after she started
taking Cymbalta in December of 2017 . (T. 462, 469). There are several references to
plaintiff being “right hand” dominant, but no discussion of hand pain or what her
functional ability might be. (T. 472-73, 461, 446). Dr. Jenouri and Dr. Fatti found that
plaintiff had 4/5 strength in her right hand, which would be consistent with some
limitation. (T. 337, 395). In addition to being supported by Dr. Jenouri’s report, the
ALJ’s RFC which included “occasional” fingering with plaintiff’s dominant hand is
supported by all the evidence discussed by the ALJ: her lack of specialized treatment
after 2017, her own statements (at the hearing and to her medical providers), and her
activities of daily living.
The court notes that the provider’s statement regarding “nerve damage” was not made after a
physical examination, but was based upon plaintiff’s statement explaining why she was not sleeping
well. Plaintiff did not complain about her hands during the appointment.
The plaintiff’s suggestion that the court remand for the ALJ to recontact
plaintiff’s medical providers or Dr. Jenouri is without merit. The ALJ is not required to
further develop the record when the record contains adequate evidence for the ALJ to
reach a decision, and substantial evidence supports the ALJ’s finding. Marie W. v.
Comm’r of Soc. Sec., 2021 WL 431656, at *5 (citing Janes v. Berryhill, 710 F. App’x
33, 34 (2d Cir. 2018) (“The ALJ is not required to develop the record any further when
the evidence already presented is ‘adequate for [the ALJ] to make a determination as to
disability.’”) (quoting Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)). As stated above,
the ALJ properly considered the evidence regarding plaintiff’s hands. Plaintiff has not
seen Dr. Fatti since 2017, there are no missing records from Dr. Fatti’s office, and one
of his last assessments found that plaintiff had 4/5 strength on the right side and that her
neurological testing was almost normal. Plaintiff has rarely mentioned her CTS to her
primary care provider, and has never mentioned the CTS in conjunction with a problem
which needed medical attention. Thus, further development of the record is not
With respect to plaintiff’s mental impairment, the ALJ stated that, although
plaintiff also had a history of depression, her primary care records did not show any
ongoing deficits or psychiatric abnormalities, and there was no evidence of any
specialized psychiatric treatment. (T. 21). The ALJ gave partial weight to the
consultative opinion of Dr. Amanda Slowik, Psy. D. (Id.) Dr. Slowik found that most
of plaintiff’s abilities were “mildly” limited. (T. 400-401). These abilities include
understanding, remembering, or applying simple directions and instructions, using
reason and judgment to make work-related decisions and interacting appropriately with
supervisors, co-workers, and the public. (Id.) Plaintiff’s abilities with respect to
complex instructions and directions and maintain concentration are “moderately”
limited. Her ability to sustain an ordinary routine was not limited at all. (T. 401). Her
ability to regulate emotions is “mildly to moderately” limited. Dr. Slowik stated that
the limitations were caused by “distractability,” secondary to pain and anxiety. (Id.)
However, Dr. Slowik’s conclusion was as follows:
The results of the present evaluation appear to be consistent
with psychiatric issues, but in itself [sic] these do not appear
to be significant enough to interfere with the claimant’s ability
to function on a daily basis.
Plaintiff argues that, based on Dr. Slowik’s assessment, the ALJ should have
“explained” why the “social interaction limitations” were “rejected” because the VE
testified that there were no jobs plaintiff could perform if she could only have
“occasional” interaction with the public. (Pl.’s Br. at 23). First, plaintiff cites
absolutely no basis for finding that a “mild” limitation in social interaction limits the
plaintiff to only “occasional” interaction with the public. The ALJ rejected the portion
of Dr. Slowik’s report in which she found the “moderate” restrictions noted above
because plaintiff’s medical records did not show that plaintiff exhibited any on-going
difficulty understanding things, sustaining concentration, remembering things, or
regulating her emotions. (T. 22). The ALJ pointed out that in Dr. Slowik’s
examination, she stated that plaintiff’s attention and concentration were only “mildly”
impaired. (T. 22) (citing T. 400).
Plaintiff has never been followed by a specialist for her mental impairments, nor
has she participated in any counseling. Her medication is managed by her primary care
provider at United Health Services (“UHS”). A review of plaintiff’s primary care
records supports the ALJ’s determination. On May 5, 2017, FNP Sarah Singler
reported that plaintiff’s mood, affect, judgment, and insight were all normal. (T. 488).
On November 7, 2017, plaintiff reported anxious, fearful thoughts, aggravated by
conflicts and stress at home. (T. 481). However, plaintiff’s mood and affect were
appropriate, and her behavior was appropriate for her age. (T. 484). On December 26,
2017, testing revealed “severe depression,” based on plaintiff’s responses to questions.
(T. 479). Plaintiff reported difficulty concentrating, excessive worry, and fatigue,
aggravated by stress at home and menstruation. (T. 475). She tried Buspirone, but it
made her angry. (T. 475). However, PA Pisani’s examination of plaintiff showed
appropriate mood, affect, and behavior. (T. 478). Plaintiff was started on Cymbalta on
December 22, 2017. (T. 479).
On March 16, 2018, PA Pisani noted that plaintiff was experiencing a lot of
stress at home, but that the Cymbalta was keeping plaintiff “steady,” and she was not
having major mood swings. (T. 464). On examination, plaintiff’s mood was
appropriate, her attention, concentration, insight, and judgment were all normal. (T.
466). PA Pisani reported that plaintiff’s depression and anxiety were “stable” overall.
(Id.) On June 22, 2018, PA Pisani reported that plaintiff was having a fair response to
Cymbalta, even though plaintiff thought the dose should be increased. (T. 461). On
September 25, 2018, plaintiff reported anxious and fearful thoughts, but testing
revealed only “mild depression,” and although plaintiff reported some difficulty
concentrating, PA Pisani’s examination showed normal results. (T. 451, 454-55). On
November 23, 2018, plaintiff’s psychiatric findings were listed as “normal,” with
appropriate mood and affect. (T. 449). There is absolutely no evidence that plaintiff is
unable to interact socially, and her behavior has always been listed as appropriate.
Thus, no remand is required to evaluate plaintiff’s ability to interact with “others.”
Finally, plaintiff argues that the ALJ’s evaluation of her symptoms was not
supported by substantial evidence. Plaintiff argues that the ALJ cannot rely upon
plaintiff’s activities of daily living to “rebut his or her subjective statements . . .” unless
plaintiff engages in those activities for sustained periods. (Pl.’s Br. at 24). The ALJ is
not required to recite every bit of evidence that she considered as long as the court can
glean her rationale from the evaluation. Cichocki v. Astrue, 534 F. App’x 71, 76 (2d
Cir. 2013). There is case law suggesting that activities of daily living “alone” may be
insufficient to support plaintiff’s ability to work. Walsh v. Colvin, No. 1:13-CV-0603
(GTS/ATB), 2014 WL 4966142, at *8 (N.D.N.Y. Sept. 30, 2014) (ALJ rejected all
opinions of record, and the court found that activities of daily living alone were
insufficient to support the RFC finding). However, the Second Circuit holds that a
significant range of daily activities may detract from a plaintiff’s claim of disabling
symptoms. Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (per curiam); Rusin v.
Berryhill, 726 F. App’x 837, 840-41 (2d Cir. 2018); Barry v. Colvin, 606 F. App’x 621,
623 (2d Cir. 2015); Roma v. Astrue, 468 F. App’x 16, 19 (2d Cir. 2012).
In this case, the ALJ considered plaintiff’s admitted daily activities, in
conjunction with the medical evidence, including plaintiff’s failure to continue to treat
with Dr. Fatti, her failure to follow through with his suggestion that she go back to the
pain specialist for a nerve block,18 and her failure to mention her hand impairment at
most of her subsequent primary care appointments. There is no question that plaintiff
has some limitations, but the ALJ weighed the conflicting evidence and made an RFC
determination which was consistent with the record as a whole. The ALJ’s analysis is
supported by substantial evidence.
WHEREFORE, based on the findings above, it is
ORDERED, that the decision of the Commissioner is AFFIRMED and this case
DISMISSED, and it is
ORDERED, that the Clerk enter judgment for DEFENDANT.
Dated: April 27, 2021
Although plaintiff testified that she stopped seeing Dr. Fatti because he told her that there was
nothing more they could do for her (T. 60-61), this statement is not completely consistent with Dr.
Fatti’s statements in the medical records. Dr. Fatti suggested that plaintiff go to the pain clinic to
discuss whether a nerve block might be appropriate, but plaintiff was “not interested” in this. (T. 433).
Plaintiff told Dr. Fatti that she would let him know, but in the meantime would continue with
conservative treatment and follow up with Dr. Fatti on an “as needed” basis. (Id.)
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