Quintana v. Colvin

Filing 27

OPINION AND ORDER re: 25 CROSS MOTION for Judgment on the Pleadings . filed by Social Security Administration, 19 MOTION for Judgment on the Pleadings filed by Jesus Quintana. Both plaintiff and the Commissioner have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Items ("D.I.") 19, 25). Both parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c) (D.I. 1 2). (As further set forth in this Order.) For all the foregoing reasons, plaintiff's motion for judgment on the pleadings (Docket Item 19) is denied and the Commissioner's motion for judgment on the pleadings (Docket Item 25) is granted. (Signed by Magistrate Judge Henry B. Pitman on 2/27/2017) Copies Sent By Chambers (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
JESUS QUINTANA,

:
Plaintiff,

CAROLYN W. COLVIN, Acting
Commissioner of Social Security

15 Civ. 6473 (HBP)

:

-against-

:

OPINION AND
ORDER

:
:

Defendant.
:
-----------------------------------X

PITMAN, United States Magistrate Judge:

I.

Introduction

Plaintiff brings this action pursuant to section 205(g)
of the Social Security Act (the "Act"), 42 U.S.C. § 405(g),
seeking judicial review of a final decision of the Commissioner
of Social Security ("Commissioner") denying his application for
supplemental security income ("SSI") and disability insurance
benefits ("DIB").

Both plaintiff and the Commissioner have moved

for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure (Docket Items ("D.I.") 19, 25).
Both parties have consented to my exercising plenary jurisdiction
pursuant to 28 U.S.C. § 636(c) (D.I. 12).

For the reasons set

forth below, plaintiff's motion is denied and the Commissioner's
motion is granted.

II.

Facts1

A.

Procedural Background

In plaintiff's applications for SSI and DIB he alleged
that he became disabled on July 19, 2011 due to asthma,2 allergies and eczema3 (Tr. 82, 156-62, 182-83).

Plaintiff later

amended his applications to claim that he was also disabled due
to sleep apnea4 and a right knee impairment (Tr. 26).

The claims

were initially denied by the Social Security Administration on
September 20, 2012 (Tr. 82-88).

Plaintiff requested a hearing,

and an Administrative Law Judge ("ALJ") conducted a video hearing

1

I recite only those facts relevant to my review. The
administrative record that the Commissioner filed pursuant to 42
U.S.C. § 405(g) (See Notice of Filing of Administrative Record,
dated October 21, 2015 (Docket Item 13) ("Tr.")) sets out
plaintiff's medical history more fully.
2

Asthma is a condition that causes a person to have
recurrent attacks of shortness of breath "with airway
inflammation and wheezing due to spasmodic contraction of the
bronchi." Dorland's Illustrated Medical Dictionary ("Dorland's")
at 168 (32nd ed. 2012).
3

Eczema is a skin condition and refers to "any of various
[itchy] papulovesicular types of dermatitis occurring as
reactions to endogenous or exogenous agents." Dorland's at 592.
4

Sleep apnea refers to "transient periods of cessation of
breathing during sleep." Dorland's at 117.
2

on December 23, 2013 during which plaintiff, who was represented
by an attorney, testified on his own behalf (Tr. 42-73).

On May

14, 2014, the ALJ issued a decision finding that plaintiff was
not disabled (Tr. 24-34).

The ALJ's decision became the Commis-

sioner's final decision when the Appeals Council denied plaintiff's request for review on June 18, 2015 (Tr. 1-3).

B.

Social Background

Plaintiff was born in 1972 and was 39 years old at his
alleged onset date (Tr. 178).

Plaintiff completed the eleventh

grade and was trained as an auto mechanic (Tr. 183).

Plaintiff

worked as a mechanic's assistant for a sanitation company from
1989 to 1998 (Tr. 66, 229-30).

Plaintiff subsequently worked as

a sales associate for a beer company from 1998 through his
alleged onset date in 2011 (Tr. 229).

The latter job involved

driving a truck to deliver cases of beer and beer displays and
setting up the displays (Tr. 66-67, 183, 231).
In documentation dated August 31, 2012, plaintiff
reported to the Social Security Administration ("SSA") that he
lived in an apartment with his parents (Tr. 190).

Plaintiff

stated that he was able to shower, iron his clothes, repair holes
in the walls and put away laundry (Tr. 191-93).

Plaintiff went

outside every day, usually to the park, and would walk at a slow
3

pace, so as to not "over exert" himself (Tr. 191, 193, 195).
According to plaintiff, he could walk three blocks before needing
to take a rest (Tr. 197), and would lose his breath climbing
stairs (Tr. 196, 193, 196).

Plaintiff stated that, at his

previous job, lifting cases of beer frequently caused shortness
of breath that was so severe that he needed to sit down (Tr.
195).

Plaintiff indicated that his social life had not changed

as a result of his medical condition and that he went to the
movies, went fishing and visited his children (Tr. 195).

C.

Medical Background5

1.

Dr. Rajesh Patel

The record contains treatment notes from familymedicine practitioner Dr. Rajesh Patel prior to plaintiff's
alleged onset date.

Plaintiff saw Dr. Patel on May 2, 2008 and

his chief complaint during that visit was an asthma attack which
had lasted for three days (Tr. 255-56).

The medical history

indicates that plaintiff had asthma since 2007 and allergic
rhinitis6 since 1985 (Tr. 255).

Dr. Patel diagnosed plaintiff

5

Plaintiff testified at the hearing that there was a gap in
his treatment records from 2011 through mid-2013 because he did
not have medical insurance during that time (Tr. 57-58).
6

Allergic rhinitis is "a general term used to denote any
(continued...)
4

with "unspecified asthma without mention of status asthmaticus,"7
which was "chronic controlled," and "contact dermatitis and other
eczema," which was also "chronic controlled" (Tr. 255-56).

Dr.

Patel prescribed Lidex cream, Singulair, Benadryl and an
albuterol inhaler8 (Tr. 256).

2.

Treatment at Medinova Physicians

a.

Treatment Prior to
Alleged Onset Date

Plaintiff was seen by Dr. Vijay Alla at Medinova
Physicians ("Medinova") on January 7, 2010, complaining of a rash
on his face, itching all over his body and swollen eyes (Tr.
366).

During that visit, plaintiff stated that he had no short-

ness of breath when at rest, but that he did experience shortness
of breath upon exertion (Tr. 366).

Plaintiff reported that his

shortness of breath improved when he rested or used his inhaler

6

(...continued)
allergic reaction of the nasal mucosa; it may occur perennially."
Dorland's at 1639.
7

Status asthmatiticus refers to "a particularly severe
episode of asthma that does not respond adequately to ordinary
therapeutic measures and may require hospitalization." Dorland's
at 1767.
8

Albuterol is administered by inhalation for the treatment
of bronchospasm associated with various conditions including
asthma. Dorland's at 45.
5

(Tr. 366).

Plaintiff also reported that he had a history of

snoring and that he fell asleep at the wheel of his car, but also
reported that his breathing problems did not wake him up at night
(Tr. 366).

Dr. Alla found pigmented lesions on plaintiff's face

and hands (Tr. 366).

He diagnosed plaintiff with a rash and

another nonspecific skin eruption and prescribed Elidel cream,
Temovate cream and Pataday solution (Tr. 367).
Dr. Alla also found that plaintiff had decreased breath
sounds bilaterally, but no wheezing, rhonchi9 or rales10 (Tr.
366).

Dr. Alla also diagnosed plaintiff with "bronchial asthma

without mention of status asthmaticus" or acute exacerbation (Tr.
366).

Dr. Alla continued plaintiff on Singulair and also pre-

scribed Symbicort and Ventolin inhalers (Tr. 367).
Plaintiff saw Dr. Alla again on January 21, 2010, for a
follow-up visit (Tr. 364).

Dr. Alla found that plaintiff's

respiration was clear bilaterally, and that plaintiff had no
wheezing, rhonchi or rales (Tr. 364).

Plaintiff complained of

blurred vision and a rash, and Dr. Alla continued plaintiff's
prescription of Elidel cream for his rash and continued plaintiff

9

Rhonchi refers to a snoring sound.

10

Dorland's at 1642.

Rales is "a discontinuous sound . . . consisting of a
series of short nonmusical noises, heard primarily during
inhalation . . . ." Dorland's at 1576.
6

on Singulair, Symbicort, albuterol and Ventolin for his asthma
(Tr. 364-65).

b. Treatment After
Alleged Onset Date

Plaintiff returned to Dr. Alla on June 7, 2013 for a
physical examination (Tr. 300).

Plaintiff complained of having

sharp pain in his right knee that he rated as 7 out of 10 (Tr.
300).

Plaintiff reported that the pain had lasted for a "long

time on and off" (Tr. 300).

Dr. Alla's notes indicate that

plaintiff had no limitation in motion and no trouble walking (Tr.
301).

Dr. Alla prescribed Naprosyn tablets for plaintiff's knee

pain and ordered an x-ray and a magnetic resonance imaging
("MRI") scan (Tr. 301).
During the June 7 visit, plaintiff reported to Dr. Alla
that he had no shortness of breath (Tr. 300).

Dr. Alla examined

plaintiff and found that plaintiff's respiration was clear
bilaterally and that there was no wheezing (Tr. 300).

Dr. Alla

assessed that plaintiff had "bronchial asthma without mention of
status asthmaticus or acute exacerbation" (Tr. 301).

Dr. Alla

prescribed albuterol, Ventolin and Singulair (Tr. 301).
On the same date, plaintiff had an x-ray taken of his
right knee at Madison Avenue Radiology Center (Tr. 305).

The x-

ray showed that there was lateral subluxation at the tibia and a
7

joint effusion11 indicating internal derangement (Tr. 305).

No

fractures, dislocations or bone lesions were observed (Tr. 305).
The radiologist recommended that plaintiff have a MRI scan of the
right knee (Tr. 305).
On June 27, 2013, plaintiff underwent an MRI examination of his right knee (Tr. 319).

The MRI showed that plaintiff

had a full-thickness displaced tear of the lateral meniscus12
with a meniscal fragment about the lateral joint line, a
non-displaced two centimeter tear of the posterior horn medial
meniscus, with a moderate grade medial collateral ligament sprain
(Tr. 319).
Plaintiff was seen again at Medinova on August 1, 2013,
by registered physician's assistant ("RPA") Anna Litvin, to
discuss the results of his x-ray and MRI exams (Tr. 297).

RPA

Litvin found that plaintiff's respiration was clear bilaterally,
with no wheezing (Tr. 297).

Plaintiff was again assessed as

suffering from "bronchial asthma without mention of status
asthmaticus or acute exacerbation" (Tr. 297).

Plaintiff was

11

Effusion is "the escape of fluid into a part or tissue, as
an exudation or a transudation." Dorland's at 595.
12

A meniscus is a "crescent-shaped structure of the body.
Often used alone to designate one of the menisci of the knee
joint." Dorland's at 1134. A lateral meniscus of the knee joint
is "a crescent-shaped disk of fibrocartilage, but nearly circular
in form, attached to the lateral margin of the superior articular
surface of the tibia." Dorland's at 1135.
8

referred to a pulmonologist for his asthma and for an orthopedic
evaluation (Tr. 297-98).
On August 26, 2013, plaintiff was seen by Dr. Alla to
obtain medical clearance prior to undergoing a right knee
arthroscopy13 (Tr. 293).

During this visit, plaintiff denied

having any shortness of breath either at rest or with exertion
(Tr. 297).

Plaintiff also reported that he had not taken his

asthma medication for several days (Tr. 295).

Dr. Alla's exami-

nation of plaintiff was consistent with his prior examinations;
he found no shortness of breath, cough or wheezing (Tr. 294).
Plaintiff was again seen by RPA Litvin on September 17,
2013, for a refill of his medications (Tr. 291).

Plaintiff

stated that he could walk a "good number of blocks without any
problems," and that he had right knee pain, but "no pain in the
legs" (Tr. 291).

The record of that visit indicates that plain-

tiff was in a good general state of health and that he was able
to do his usual activities (Tr. 291).

His respiratory examina-

tion was again negative for coughing, shortness of breath or
wheezing (Tr. 291).

Plaintiff's assessment and medications

remained unchanged from his prior visits (Tr. 292).

13

Arthroscopy refers to the examination of the interior of a
joint with an endoscope for the purpose of carrying out
diagnostic and therapeutic procedures within the joint.
Dorland's at 158.
9

3.

Dermatologist
Dr. Hyun-Soo Lee

On December 21, 2013, plaintiff was examined by Dr.
Hyun-Soo Lee, a dermatologist (Tr. 378).

Dr. Lee's notes indi-

cate that plaintiff had numerous erythematous14 papules and
plaque on his cheeks, neck and body (Tr. 375).

Dr. Lee diagnosed

plaintiff with severe atopic dermatitis and prescribed medications to treat his skin condition (Tr. 378).

4.

Consulting Examiner
Dr. Elizama Montalvo

At the request of SSA's Division of Disability Determination, consulting family-medicine physician Dr. Elizama Montalvo
examined plaintiff on September 10, 2012 (Tr. 283-86).

Plaintiff

told Dr. Montalvo that he had a history of eczema, allergic
rhinitis and asthma and that he had been hospitalized for two
weeks in 2006 because of his asthma (Tr. 283).

Plaintiff re-

ported that his last asthma attack was on July 18, 2012 (Tr.
283).

Plaintiff also reported that he could only walk for three

blocks without having breathing problems and that he would then
have to stop and use his inhaler (Tr. 283).

14

Plaintiff also

Erythema refers to a redness of the skin.

643.
10

Dorland's at

stated that he needed to use his inhaler when climbing the three
flights of stairs to his apartment (Tr. 283).15

Plaintiff stated

that he was prescribed albuterol, Claritin, a Ventolin inhaler,
Benadryl, Singulair and Betamethasone cream (Tr. 283).
Dr. Montalvo examined plaintiff and found that plaintiff weighed 236 pounds, his gait and stance were normal and that
he did not need an assistive device to walk (Tr. 284-285).
Plaintiff could walk on his heels and toes without difficulty and
squat fully (Tr. 285).

Plaintiff rose from a chair without

difficulty and needed no help changing or getting on and off the
examination table (Tr. 285).

Plaintiff had full range of motion

in his cervical spine, shoulders, elbows, forearms, wrists,
fingers, hips, knees and ankles (Tr. 284).

Plaintiff's joints

were stable and nontender, and plaintiff had no redness, heat,
swelling or effusion (Tr. 284).

Plaintiff had full (5 out of 5)

strength in all extremities, with no sensory deficits (Tr. 284).
Dr. Montalvo also examined plaintiff's chest and lungs
and stated that
[h]e has poor effort. Difficulty to expand his diameter, but I did not hear any wheezing. Percussion[16]

15

Plaintiff later testified at the hearing before the ALJ
that "we currently moved to the second floor" (Tr. 46). The
record does not disclose when this move occurred.
16

Percussion is "the act of striking a part with short,
(continued...)
11

normal. No significant chest wall abnormality.
diaphragmatic[17] motion.

Normal

(Tr. 284).
Dr. Montalvo observed that plaintiff had
hyperkeratosis18 on his upper extremities, face, neck and the
back of his knees and that his skin was very dry, with scaling
and oozing (Tr. 286).
Dr. Montalvo diagnosed plaintiff with asthma, allergic
rhinitis and severe eczema (Tr. 284).

Dr. Montalvo determined

that plaintiff had moderate limitations in walking and climbing
stairs and that plaintiff should avoid dust, environmental
pollutants and smoke (Tr. 284).

5.

Plaintiff's Knee
Surgery and Follow-Up Treatment

On August 21, 2013, plaintiff saw orthopedic surgeon
Dr. Neofitos Stefanides (Tr. 315).

Plaintiff told Dr. Stefanides

that he had been experiencing right knee pain since he had

16

(...continued)
sharp blows as an aid in diagnosing the condition of the
underlying parts by the sound obtained." Dorland's at 1409.
17

The diaphragm is the "musculomembranous partition
separating the abdominal and thoracic cavities." Dorland's at
509-10.
18

Hyperkeratosis refers to abnormal thickening of the outer
layer of the skin. Dorland's at 890.
12

tripped a year before and that the pain had been getting progressively worse and adversely affecting the activities of daily
living (Tr. 315).

Plaintiff reported that his pain at the time

of his examination was 8 out of 10, with periods of worsening
pain (Tr. 315).

Plaintiff stated that Motrin and Tylenol pro-

vided mild pain relief (Tr. 315).
an assistive device (Tr. 315).

Plaintiff could walk without

During this visit, plaintiff

denied any coughing, wheezing, chest pain or shortness of breath
(Tr. 315).
Dr. Stefanides examined plaintiff and found that
plaintiff had an antalgic19 gait and that plaintiff could kneel
and squat with a moderate amount of difficulty (Tr. 315).
Plaintiff had positive medial and lateral joint tenderness (Tr.
315).

Dr. Stefanides also found mild effusion (Tr. 315).

Plaintiff's range of motion in his right knee was "0-140 without
crepitus"20 and his strength was 4 out of 5 due to pain (Tr.
315).

Dr. Stefanides recommended arthroscopic surgery on plain-

tiff's right knee (Tr. 316).

19

Antalgic means "counteracting or avoiding pain, as a
posture or gait assumed so as to lessen pain." Dorland's at 97.
20

Bony crepitus refers to the "crackling sound produced by
the rubbing together of fragments of fractured bone and joint
crepitus refers to "the grating sensation caused by the rubbing
together of the dry synovial surfaces of joints." Dorland's at
429.
13

There are no records concerning the surgery in the
administrative record.

However, Dr. Stefanides' medical records

indicate that on September 30, 2013, he saw plaintiff for the
first post-operative visit (Tr. 313).

Plaintiff reported that he

was doing well and had mild pain that was well controlled with
medication (Tr. 313).

Plaintiff did not have any shortness of

breath or wheezing (Tr. 313).

Dr. Stefanides examined plaintiff

and found that he did not have any tenderness at the medial and
lateral joint lines and that there was no effusion (Tr. 313).
Plaintiff's right knee strength was 5 out of 5 and his range of
motion was 0-140 without crepitus (Tr. 313).

He had a mildly

antalgic gait and had difficulty squatting (Tr. 313).

Dr.

Stefanides prescribed physical therapy three times a week for 4
weeks (Tr. 314, 363).
Plaintiff began physical therapy on October 8, 2013
(Tr. 362).

Physical therapist Howard Krebaum noted that plain-

tiff rated his pain as 10 out of 10 (Tr. 362).

Krebaum found

that plaintiff's right knee strength was 3 out of 5, that plaintiff was limited by pain and that plaintiff needed an assistive
device to walk (Tr. 362).

Krebaum also noted that plaintiff's

right knee extension was -5 degrees and that his flexion was
tight at 95 degrees (Tr. 362).

Plaintiff attended physical

14

therapy on October 10, October 22, October 29, November 5,
November 19 and November 21, 2013 (Tr. 356-61).
Plaintiff had a second postoperative visit with Dr.
Stefanides on October 21, 2013 (Tr. 311).

Plaintiff reported

during that visit that he was doing better and that the surgery
had reduced his pain by 20% (Tr. 311).

Plaintiff stated that he

continued to walk with a cane (Tr. 311).

Plaintiff also indi-

cated that he was performing his home exercise program as instructed and continuing with his physical therapy regularly (Tr.
311).

Plaintiff denied experiencing any shortness of breath or

wheezing (Tr. 311).
At the October 21 examination of plaintiff's right
knee, Dr. Stefanides found that plaintiff had a range of motion
of "5-110 with moderate amount of crepitus" (Tr. 311).
strength was 4 out of 5 due to pain (Tr. 311).

His

Dr. Stefanides

observed that plaintiff's knee had a mild varus deformity with
moderate effusion (Tr. 311).

Plaintiff had an antalgic gait and

plaintiff could kneel and squat with a moderate amount of difficulty (Tr. 311).

Palpation revealed tenderness at the medial and

lateral joint lines and at the patellofemoral joint (Tr. 311).

On October 25, 2013, approximately a month after
plaintiff's arthroscopic surgery, Dr. Stefanides completed a

15

Lower Extremities Impairment Questionnaire (Tr. 345-52).

Dr.

Stefanides reported that plaintiff experienced constant right
knee pain after prolonged standing, walking or climbing of stairs
(Tr. 347).

Dr. Stefanides opined that plaintiff could sit for a

total of four hours and stand/walk for a total of up to one hour
in an eight hour workday, needed to avoid wet conditions, temperature extremes, humidity and heights and could not kneel (Tr 34652).

Dr. Stefanides opined that plaintiff's symptoms were

frequently so severe that he would be absent from work more than
three times a month (Tr. 351).

Dr. Stefanides stated that he did

not know whether plaintiff's impairments would last at least
twelve months (Tr. 350).

Dr. Stefanides opined that plaintiff

could initiate and sustain walking with the assistance of a cane
(Tr. 347).

Dr. Stefanides further indicated that plaintiff could

carry out the activities of daily living independently without
assistance, including traveling from his house to appointments,
preparing meals and bathing and dressing (Tr. 348).

Dr.

Stefanides stated that plaintiff's pain was completely relieved
by medication without any unacceptable side effects (Tr. 348).
On November 21, 2013, plaintiff's physical therapist
sent a report to Dr. Stefanides, indicating that after five
sessions treating his right knee, plaintiff had full extension
and strength of 3+ out of 5 (Tr. 354-55).

16

However, plaintiff's

self-reported lower extremity functional scale ("LEFS") was 7
(Tr. 354-55).21
Plaintiff returned to Dr. Stefanides on December 2,
2013, complaining of pain in his knee that worsened at night and
when he stood or walked for prolonged periods (Tr. 403).

Plain-

tiff reported that Percocet relieved the pain (Tr. 403).

Plain-

tiff indicated that he had also experienced some relief from the
pain after receiving an injection at his last doctor's visit, but
that the relief was short lived (Tr. 403).

Dr. Stefanides's

notes indicate that there had been no change in plaintiff's
symptoms since his last visit.

Dr. Stefanides advised plaintiff

to lose weight and prescribed physical therapy and Orthovisc
injections (Tr. 403).
Plaintiff saw Dr. Stefanides again on January 6, 2014,
for his first Orthovisc injection (Tr. 405).

Dr. Stefanides'

notes of the visit indicate that plaintiff continued to walk with
a cane but that physical therapy was helping to alleviate his

21

The LEFS is a questionnaire where plaintiff rated the
level of difficulty that he has with twenty different activities
due to his right knee impairment (Tr. 355). The scale is from
zero to eighty and the activities include walking a mile and the
ability to get in and out of the bath (Tr. 355). A score of zero
for an activity indicates that he has "Extreme Difficulty or
Unable to Perform Activity," a score of one indicates that he has
"Quite a Bit of Difficulty," a score of two indicates that he has
"Moderate Difficulty," a score of three indicates that he has "A
Little Bit of Difficulty" and a score of four indicates that he
has "No Difficulty" (Tr. 355).
17

pain (Tr. 405).

Plaintiff denied experiencing any shortness of

breath or wheezing (Tr. 405).

Upon examination, Dr. Stefanides

found that plaintiff had an antalgic gait and that kneeling and
squatting were accomplished with a moderate degree of difficulty
(Tr. 405).

Dr. Stefanides observed that the right knee had a

mild varus deformity with moderate effusion (Tr. 405).

Plain-

tiff's right knee strength was limited to 4 out of 5 due to pain
and the range of motion in this knee was 5 to 110 with a moderate
amount of crepitus (Tr. 405).

Palpation again revealed tender-

ness at the medial and lateral joint lines and at the
patellofemoral joint, but without effusion (Tr. 405).
Dr. Stefanides referred plaintiff to Dr. Yakov Perper
at Universal Pain Management who examined plaintiff on January 8,
2014 (Tr. 400).

Plaintiff told Dr. Perper that he had numbness,

tingling and weakness in his right knee and that his knee would
give way (Tr. 400).

Plaintiff also stated that he had a sharp

pain in his knee that improved with elevation and rest, but that
standing made the pain worse (Tr. 400).

Plaintiff reported that

he was taking Percocet for pain and that the Orthovisc injections
he had received from Dr. Stefanides also provided some relief
(Tr. 400).

Plaintiff denied experiencing fatigue (Tr. 400).

In

his physical examination, Dr. Perper determined that plaintiff
was not in acute distress (Tr. 401).

18

Plaintiff's right knee

appeared normal and without swelling or effusion (Tr. 401).

The

knee and the lateral joint line were tender to palpation (Tr.
401).

Dr. Perper's testing revealed decreased range of motion in

the right knee (Tr. 401).

Dr. Perper prescribed Mobic and

continued plaintiff on Percocet (Tr. 401).
On January 13, 2014, plaintiff returned to Dr.
Stefanides for another Orthovisc injection (Tr. 407).

Plaintiff

reported that his knee pain had improved since his first injection (Tr. 407).

Dr. Stefanides examined plaintiff's right knee

and found that plaintiff had mild varus deformity in his knee,
but no atrophy, ecchymosis22 or swelling (Tr. 407).

Plaintiff's

right knee strength had improved to 5 out of 5, and Dr.
Stefanides found no effusion or crepitus (Tr. 400).

Plaintiff's

range of motion in his right knee was 0 to 110 degrees with pain
at the end of flexion (Tr. 407).

Palpation again revealed

tenderness at the medial aspect of the proximal tibia and at the
adjoining joint line (Tr. 407).

Plaintiff denied having short-

ness of breath or wheezing (Tr. 407).
On January 20, 2014, plaintiff received a third
Orthovisc injection (Tr. 409).

At this visit, plaintiff reported

that his knee pain had improved since the second Orthovisc

22

Echymosis is "a small hemorrhagic spot . . . in the skin
or mucous membrane forming a nonelevated, round or irregular,
blue or purplish patch." Dorland's at 588.
19

injection (Tr. 409).

Dr. Stefanides's clinical findings were

similar to those made at plaintiff's January 13, 2014 visit (Tr.
409).
At plaintiff's follow-up visit on February 17, 2014,
Dr. Stefanides found that plaintiff's right knee showed "definite
improvement with no new problems or positive findings" (Tr. 411).
Dr. Stefanides's notes indicate that plaintiff had experienced
"significant [pain] relief" after receiving a course of three
Orthovisc injections (Tr. 409).
On February 21, 2014, plaintiff returned to Dr. Perper
(Tr. 398).

Dr. Perper's findings were the same as with plain-

tiff's prior visit to his office (Tr. 398).

Dr. Perper continued

plaintiff's Percocet prescription for an additional 30 days, but
discontinued the Mobic (Tr. 399).

6.

Pulmonologist Dr. Mohammad Basit

On September 12, 2013, plaintiff was examined by
pulmonologist Dr. Mohammed Basit at the New York Sleep Disorder
Center (Tr. 334).

Plaintiff reported to Dr. Basit that he had

had asthma since 2006, and that attacks were triggered by
weather, climbing more than five flights of stairs and seasonal
allergies (Tr. 334).

Plaintiff stated that he sleeps from

approximately 11:00 PM to 10:00 AM, snores loudly and wakes up

20

several times in the night (Tr. 334).

Plaintiff further stated

that he dozes all day long (Tr. 334).

Dr. Basit examined plain-

tiff and found that his breath sounds were normal (Tr. 335).
Dr. Basit conducted a diagnostic sleep study the
following day (Tr. 337).

The polysomnography report indicated

that plaintiff had mild sleep apnea (Tr. 337).

Dr. Basit recom-

mended "a repeat study with CPAP [(continuous positive airway
pressure)23] initiation and titration[24] during sleep to eliminate
obstructive, apneic and hypopneic[25] episodes" (Tr. 337, 342).
Dr. Basit also recommended that plaintiff avoid driving, operating heavy machinery or other tasks which required sustained
alertness (Tr. 337).

23

"CPAP, or continuous positive airway pressure, is a treatment that uses mild air pressure to keep the airways open. CPAP
typically is used by people who have breathing problems, such as
sleep apnea." Cullen v. Comm'r of Soc. Sec., 15 Civ. 1180 (JCF),
2016 WL 3144050 at *2 n.6 (S.D.N.Y. May 19, 2016) (Francis,
M.J.), citing What Is CPAP?, National Heart, Lung, and Blood
Institute, https://www.nhlbi.nih.gov/health/healthtopics/topics/cpap (last visited May 18, 2016).
24

Titration is the process of determining a component in a
solution "by the addition of a liquid reagent of known strength"
until a desired effect is reached. Dorland's at 1932. Dr. Basit
appears to be describing the adjustment of airway pressure to
ascertain the minimum amount of pressure necessary for the CPAP
treatment to be effective.
25

Hypopnea is an "abnormal decrease in the depth and rate of
breathing." Dorland's at 905.
21

On December 2, 2013, before plaintiff underwent the
second polysomnogram, plaintiff's counsel submitted to the ALJ an
undated "Pulmonary Impairment Questionnaire" report completed by
Dr. Basit (Tr. 321-28) ("Dr. Basit's December 2013 Opinion").26
Dr. Basit indicated that plaintiff had a diagnosis of asthma and
sleep apnea, with a "fair" prognosis (Tr. 322-23).

Dr. Basit

listed the clinical findings as shortness of breath and wheezing,
with reported symptoms of extreme sleepiness (Tr. 323-24).

Dr.

Basit characterized the severity of plaintiff's asthma attacks as
"moderate" (Tr. 324).

Dr. Basit stated that plaintiff needed

nebulizer27 treatments with albuterol to treat his asthma (Tr.
324).

Dr. Basit opined that plaintiff's fatigue and other

symptoms were severe enough to interfere constantly with his
attention and concentration (Tr. 327).

Dr. Basit further opined

that plaintiff would need to take 15-20 minute unscheduled breaks
two to three times during the work day and would be absent from
work more than three times a month as a result of his impairments
(Tr. 327).

Dr. Basit opined that in an eight-hour workday

plaintiff could sit for three hours and stand for up to one hour
(Tr. 325).

26

Dr. Basit stated that plaintiff could lift five to

Dr. Basit signed the form but did not date it (Tr. 328).

27

Nebulizer refers to "a device for creating and throwing an
aerosol spray." Dorland's at 1234.
22

ten pounds frequently and would need to avoid wet conditions,
odors, fumes, temperature extremes, humidity, dust, perfumes,
gases, solvents, chemicals, cigarette smoke and soldering fluxes
(Tr. 325, 327-28).
Plaintiff saw Dr. Basit for a follow-up visit on
December 11, 2013, during which Dr. Basit went over the results
of the sleep study (Tr. 342).

Dr. Basit diagnosed plaintiff with

obstructive sleep apnea, but noted that the severity was most
likely underestimated in the sleep study because plaintiff had
only a limited amount of sleep (Tr. 342).
Dr. Basit performed a second sleep study on January 5,
2014, with the use of CPAP therapy (Tr. 392).

The second

polysomnography report indicates that "CPAP was applied" during
the study and "several levels of pressure were attempted.

At

pressure of 6.0 cm/H20, there was substantial improvement in
obstructive apneic and hypopneic events noted" (Tr. 392).

The

report thus concluded that CPAP therapy had been successful in
treating plaintiff's "sleep apnea/hypopnea" and that "[o]ptimal
pressure was felt to be 6.0 cm H20" (Tr. 392).

Dr. Basit recom-

mended that plaintiff do a "treatment trial with CPAP at a
pressure of 6.0 cm/H20 during sleep" and lose weight (Tr. 392).

23

D.

Proceedings Before the ALJ

1.

Plaintiff's Testimony

Plaintiff testified at the December 2013 hearing that
he was disabled because of knee pain, fatigue caused by sleep
apnea, eczema and asthma (Tr. 45-64).

Plaintiff testified that

he lives with his parents and brother on the second floor of a
walk-up apartment building (Tr. 46-47).

Plaintiff was terminated

from his job because his supervisor found him sleeping on the job
after plaintiff had an asthma attack at work (Tr. 43).

Plaintiff

testified that, after losing his job, he started collecting
unemployment benefits (Tr. 58).

Once those benefits terminated,

plaintiff applied for disability benefits (Tr. 58).
Plaintiff explained that he had no medical records for
the period from 2010 through 2013 because he had no insurance
during that period (Tr. 57-58).

Plaintiff also stated that he

did not have any asthma attacks during that time period (Tr. 59).
Plaintiff testified that he had traveled to the hearing
by train with his mother (Tr. 45).

Plaintiff explained that he

used a cane and that he can walk two the three blocks at a time
(Tr. 47, 54).

Plaintiff testified that he had difficulty climb-

ing the stairs to his apartment because he suffers from shortness
of breath (Tr. 46-47).

Plaintiff did not have any problems

24

dressing himself or getting in and out of the shower (Tr. 47).
He testified that he walked to church, a distance of approximately one and one-half blocks (Tr. 29, 48-49).

Plaintiff

initially testified that he did not have a problem with sitting
(Tr. 54), but later testified that he could only sit for 15 to 20
minutes before his legs went numb and he needed to stand (Tr.
59).

Plaintiff testified that his doctors instructed him not to

lift more than five to ten pounds (Tr. 59).

Plaintiff also

stated that he was constantly napping due to the sleep apnea (Tr.
55, 60, 62).
Plaintiff characterized his asthma as very severe and
stated that two to three times a week his asthma symptoms were so
severe that he would need to use his inhaler or his nebulizer
constantly (Tr. 53, 62-63).

Plaintiff further stated that he had

"extreme" knee pain that would particularly bother him on cold
and rainy days (Tr. 53, 63-64).

2.

Vocational Expert Testimony

Peter Massey, a vocational expert, also testified at
the hearing (Tr. 65-72).

The ALJ asked Mr. Massey about a

hypothetical individual with plaintiff's education and prior work

25

experience, who could perform sedentary work,28 but could climb
ramps and stairs only occasionally, never crawl or climb ladders,
ropes, or scaffolds and only occasionally stoop, crouch, or kneel
(Tr. 68).

The ALJ further asked Mr. Massey to assume that such

an individual could not be frequently exposed to temperature
extremes, irritants, wet conditions or humidity, poorly ventilated areas, chemicals or moving machinery and unprotected
heights (Tr. 69).

Mr. Massey testified that such an individual

could work in jobs defined in the Dictionary of Occupational
Titles ("DOT") as an addressor, table worker, or order clerk,
each of which were sedentary unskilled jobs existing in substantial numbers in the regional economy (Tr. 69-70).

Mr. Massey

also testified that if this individual were off task five percent
of the day with an option to sit and stand at will, he could
still perform these jobs, but that if he was off task twenty
percent of the day he could not perform any work (Tr. 71).

28

Mr.

The regulations define "sedentary work" as that work which
involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary
job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met.

20 C.F.R. §§ 404.1567(a), 416.967(a).
26

Massey also testified that an individual who has to miss work
three times a month or is limited to sit three hours and
stand/walk for one hour in an eight hour work day could not work
(Tr. 72).

III.

Analysis

A.

Applicable
Legal Principles

1.

Standard of Review

The Court may set aside the final decision of the
Commissioner only if it is not supported by substantial evidence
or if it is based upon an erroneous legal standard.

42 U.S.C.

§ 405(g); Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per
curiam); Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012);
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).

Moreover,

the court cannot "affirm an administrative action on grounds
different from those considered by the agency."

Lesterhuis v.

Colvin, 805 F.3d 83, 87 (2d Cir. 2015), quoting Burgess v.
Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
The Court first reviews the Commissioner's decision for
compliance with the correct legal standards; only then does it
determine whether the Commissioner's conclusions were supported
by substantial evidence.

Byam v. Barnhart, 336 F.3d 172, 179 (2d
27

Cir. 2003), citing Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.
1999).

"Even if the Commissioner's decision is supported by

substantial evidence, legal error alone can be enough to overturn
the ALJ's decision," Ellington v. Astrue, 641 F. Supp. 2d 322,
328 (S.D.N.Y. 2009) (Marrero, D.J.).

However, "where application

of the correct legal principles to the record could lead to only
one conclusion, there is no need to require agency reconsideration."

Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
"'Substantial evidence' is 'more than a mere scintilla.

It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.'"

Talavera v. Astrue,

supra, 697 F.3d at 151, quoting Richardson v. Perales, 402 U.S.
389, 401 (1971).

Consequently, "[e]ven where the administrative

record may also adequately support contrary findings on particular issues, the ALJ's factual findings 'must be given conclusive
effect' so long as they are supported by substantial evidence."
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam),
quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
Thus, "[i]n determining whether the agency's findings were
supported by substantial evidence, 'the reviewing court is
required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be

28

drawn.'"

Selian v. Astrue, supra, 708 F.3d at 417 (citation

omitted).

2.

Determination
of Disability

A claimant is entitled to SSI and DIB if the claimant
can establish 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 twelve months."29
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Barnhart v.
Walton, 535 U.S. 212, 217-22 (2002) (both the impairment and the
inability to work must last twelve months).

In addition, to

obtain DIB, the claimant must have become disabled between the
alleged onset date and the date on which he was last insured.
See 42 U.S.C. §§ 416(i), 423(a); 20 C.F.R. §§ 404.130, 404.315;
McKinstry v. Astrue, 511 F. App'x 110, 111 (2d Cir. 2013) (summary order), citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir.
2008).

29

The standards that must be met to receive SSI benefits
under Title XVI of the Act are the same as the standards that
must be met in order to receive DIB under Title II of the Act.
Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Accordingly, cases
addressing the former are equally applicable to cases involving
the latter.
29

The impairment must be demonstrated by "medically
acceptable clinical and laboratory diagnostic techniques," 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D) and it must be "of such
severity" that the claimant cannot perform his previous work and
"cannot, considering his age, education and work experience,
engage in any other kind of substantial gainful work which exists
in the national economy."
1382c(a)(3)(B).

42 U.S.C. §§ 423(d)(2)(A), §

Whether such work is actually available in the

area where the claimant resides is immaterial.

42 U.S.C. §§

423(d)(2)(A), 1382c(a)(3)(B).
In making the disability determination, the Commissioner must consider:

"(1) the objective medical facts; (2)

diagnoses or medical opinions based on such facts; (3) subjective
evidence of pain or disability testified to by the claimant or
others; and (4) the claimant's educational background, age and
work experience."

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.

1999), quoting Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
1983) (internal quotation marks omitted).
In determining whether an individual is disabled, the
Commissioner must follow the five-step process required by the
regulations.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v),

416.920(a)(4)(i)(v); see Selian v. Astrue, supra, 708 F.3d at
417-18; Talavera v. Astrue, supra, 697 F.3d at 151.

30

The first

step is a determination of whether the claimant is engaged in
substantial gainful activity.
416.920(a)(4)(i).

20 C.F.R. §§ 404.1520(a)(4)(i),

If he is not, the second step requires deter-

mining whether the claimant has a "severe medically determinable
physical or mental impairment."
416.920(a)(4)(ii).

20 C.F.R. §§ 404.1520(a)(4)(ii),

If he does, the inquiry at the third step is

whether any of these impairments meet one of the listings in
Appendix 1 of the regulations.
416.920(a)(4)(iii).

20 C.F.R. §§ 404.1520(a)(4)(iii),

To be found disabled based on a listing, the

claimant's medically determinable impairment must satisfy all of
the criteria of the relevant listing.

20 C.F.R. §

404.1525(c)(3); Sullivan v. Zebley, 493 U.S. 521, 530 (1990);
Otts v. Comm'r of Soc. Sec., 249 F. App'x 887, 888 (2d Cir.
2007).

If the claimant meets a listing, the claimant is dis-

abled.

20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the claimant does not meet any of the listings in

Appendix 1, step four requires an assessment of the claimant's
residual functional capacity ("RFC") and whether the claimant can
still perform his past relevant work given his RFC.

20 C.F.R.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv); see Barnhart v. Thomas,
supra, 540 U.S. at 24-25.

If he cannot, then the fifth step

requires assessment of whether, given claimant's RFC, he can make
an adjustment to other work.

20 C.F.R. §§ 404.1520(a)(4)(v),

31

416.920(a)(4)(v).

If he cannot, he will be found disabled.

20

C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
RFC is defined in the applicable regulations as "the
most [the claimant] can still do despite his limitations."
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

To determine RFC,

the ALJ "identif[ies] the individual's functional limitations or
restrictions and assess[es] his or her work-related abilities on
a function-by-function basis, including the functions in paragraphs (b),(c) and (d) of 20 [C.F.R. §§] 404.1545 and 416.945."
Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (per
curiam), quoting Social Security Ruling 96-8p, 1996 WL 374184 at
*1 (July 2, 1996).

The results of this assessment determine the

claimant's ability to perform the exertional demands30 of sustained work which may be categorized as sedentary, light, medium,
heavy or very heavy.

20 C.F.R. §§ 404.1567, 416.967; see Schaal

v. Apfel, 134 F.3d 496, 501 n.6 (2d Cir. 1998).

This ability may

then be found to be limited further by nonexertional factors that
restrict claimant's ability to work.31

See Michaels v. Colvin,

30

Exertional limitations are those which "affect [plaintiff's] ability to meet the strength demands of jobs (sitting,
standing, walking, lifting, carrying, pushing, and pulling)." 20
C.F.R. §§ 404.1569a(b), 416.969a(b).
31

Nonexertional limitations are those which "affect only
[plaintiff's] ability to meet the demands of jobs other than the
strength demands," including difficulty functioning because of
(continued...)
32

621 F. App'x 35, 38 n.4 (2d Cir. 2015) (summary order); Zabala v.
Astrue, 595 F.3d 402, 410 (2d Cir. 2010).
The claimant bears the initial burden of proving
disability with respect to the first four steps.

Once the

claimant has satisfied this burden, the burden shifts to the
Commissioner to prove the final step -- that the claimant's RFC
allows the claimant to perform some work other than his past
work.

Selian v. Astrue, supra, 708 F.3d at 418; Burgess v.

Astrue, supra, 537 F.3d at 128; Butts v. Barnhart, 388 F.3d 377,
383 (2d Cir. 2004), amended in part on other grounds on reh'g,
416 F.3d 101 (2d Cir. 2005).
In some cases, the Commissioner can rely exclusively on
the medical-vocational guidelines (the "Grids") contained in
C.F.R. Part 404, Subpart P, Appendix 2 when making the determination at the fifth step.
(N.D.N.Y. 1995).

Gray v. Chater, 903 F. Supp. 293, 297-98

"The Grid[s] take[] into account the claimant's

RFC in conjunction with the claimant's age, education and work
experience.

Based on these factors, the Grid[s] indicate[]

whether the claimant can engage in any other substantial gainful

31

(...continued)
nervousness, anxiety or depression, maintaining attention or
concentration, understanding or remembering detailed instructions, seeing or hearing, tolerating dust or fumes, or manipulative or postural functions, such as reaching, handling, stooping,
climbing, crawling or crouching. 20 C.F.R. §§ 404.1569a(c),
416.969a(c).
33

work which exists in the national economy."

Gray v. Chater,

supra, 903 F. Supp. at 298; see Butts v. Barnhart, supra, 388
F.3d at 383.
Exclusive reliance on the Grids is not appropriate
where nonexertional limitations "significantly diminish [a
claimant's] ability to work."

Bapp v. Bowen, 802 F.2d 601, 603

(2d Cir. 1986); accord Butts v. Barnhart, supra, 388 F.3d at 383.
"Significantly diminish" means "the additional loss of work
capacity beyond a negligible one or, in other words, one that so
narrows a claimant's possible range of work as to deprive him of
a meaningful employment opportunity."

Bapp v. Bowen, supra, 802

F.2d at 606; accord Selian v. Astrue, supra, 708 F.3d at 421;
Zabala v. Astrue, supra, 595 F.3d at 411.

When the ALJ finds

that the nonexertional limitations significantly diminish a
claimant's ability to work, then the Commissioner must introduce
the testimony of a vocational expert or other similar evidence in
order to prove "that jobs exist in the economy which the claimant
can obtain and perform."

Butts v. Barnhart, supra, 388 F.3d at

383-84 (internal quotation marks and citation omitted); see also
Heckler v. Campbell, 461 U.S. 458, 462 n.5 (1983) ("If an individual's capabilities are not described accurately by a rule, the
regulations make clear that the individual's particular limitations must be considered.").

An ALJ may rely on a vocational

34

expert's testimony presented in response to a hypothetical if
there is "substantial record evidence to support the
assumption[s] upon which the vocational expert base[s] his
opinion."

Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir.

1983); accord Snyder v. Colvin, 15-3502, 2016 WL 3570107 at *2
(2d Cir. June 30, 2016) (summary order) ("When the hypothetical
posed to the vocational expert is based on a residual functional
capacity finding that is supported by substantial evidence, the
hypothetical is proper and the ALJ is entitled to rely on the
vocational expert's testimony."); Rivera v. Colvin, 11 Civ. 7469,
2014 WL 3732317 at *40 (S.D.N.Y. July 28, 2014) (Swain, D.J.)
("Provided that the characteristics described in the hypothetical
question accurately reflect the limitations and capabilities of
the claimant and are based on substantial evidence in the record,
the ALJ may then rely on the vocational expert's testimony
regarding jobs that could be performed by a person with those
characteristics.").

3.

Treating Physician Rule

In considering the evidence in the record, the ALJ must
give deference to the opinions of a claimant's treating physicians.

A treating physician's opinion will be given controlling

weight if it is "well-supported by medically acceptable clinical

35

and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in . . . [the] record."

20 C.F.R.

§§ 404.1527(c)(2), 416.927(c)(2);32 see also Shaw v. Chater, 221
F.3d 126, 134 (2d Cir. 2000); Diaz v. Shalala, 59 F.3d 307, 313
n.6 (2d Cir. 1995); Schisler v. Sullivan, 3 F.3d 563, 567 (2d
Cir. 1993).
"[G]ood reasons" must be given for declining to afford
a treating physician's opinion controlling weight.

20 C.F.R. §§

404.1527(c)(2), 416.927(c)(2); Schisler v. Sullivan, supra, 3
F.3d at 568; Burris v. Chater, 94 Civ. 8049 (SHS), 1996 WL 148345
at *4 n.3 (S.D.N.Y. Apr. 2, 1996) (Stein, D.J.).

The Second

Circuit has noted that it "'do[es] not hesitate to remand when
the Commissioner has not provided "good reasons" for the weight
given to a treating physician[']s opinion.'"

Morgan v. Colvin,

592 F. App'x 49, 50 (2d Cir. 2015) (summary order), quoting
Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); accord
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015).

Before an ALJ

can give a treating physician's opinion less than controlling
weight, the ALJ must consider various factors to determine the

32

The Social Security Administration recently adopted
regulations that alter the standards applicable to the review of
medical opinion evidence for claims filed on or after March 27,
2017. See 20 C.F.R. §§ 404.1520c, 416.920c. Because plaintiff's
claim was filed before that date, those amended regulations do
not apply here.
36

amount of weight the opinion should be given.
include:

These factors

(1) the length of the treatment relationship and the

frequency of examination, (2) the nature and extent of the
treatment relationship, (3) the medical support for the treating
physician's opinion, (4) the consistency of the opinion with the
record as a whole, (5) the physician's level of specialization in
the area and (6) other factors that tend to support or contradict
the opinion.

20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6);

Schisler v. Sullivan, supra, 3 F.3d at 567; Mitchell v. Astrue,
07 Civ. 285 (JSR), 2009 WL 3096717 at *16 (S.D.N.Y. Sept. 28,
2009) (Rakoff, D.J.); Matovic v. Chater, 94 Civ. 2296 (LMM), 1996
WL 11791 at *4 (S.D.N.Y. Jan. 12, 1996) (McKenna, D.J.).

Al-

though the foregoing factors guide an ALJ's assessment of a
treating physician's opinion, the ALJ need not expressly address
each factor.

Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir.

2013) (summary order) ("We require no such slavish recitation of
each and every factor where the ALJ's reasoning and adherence to
the regulation are clear.").
As long as the ALJ provides "good reasons" for the
weight accorded to the treating physician's opinion and the ALJ's
reasoning is supported by substantial evidence, remand is unwarranted.

See Halloran v. Barnhart, supra, 362 F.3d at 32-33; see

also Atwater v. Astrue, supra, 512 F. App'x at 70; Petrie v.

37

Astrue, 412 F. App'x 401, 406-07 (2d Cir. 2011) (summary order);
Kennedy v. Astrue, 343 F. App'x 719, 721 (2d Cir. 2009) (summary
order).

"The opinions of examining physicians are not control-

ling if they are contradicted by substantial evidence, be that
conflicting medical evidence or other evidence in the record."
Krull v. Colvin, 15-4016, 2016 WL 5417289 at *1 (2d Cir. Sept.
27, 2016) (summary order) (citation omitted); see also Monroe v.
Commr. of Social Sec., 16-1042-CV, 2017 WL 213363 at *1 (2d Cir.
Jan. 18, 2017).

The ALJ is responsible for determining whether a

claimant is "disabled" under the Act and need not credit a
treating physician's determination to this effect where it is
contradicted by the medical record.

See Wells v. Comm'r of Soc.

Sec., 338 F. App'x 64, 66 (2d Cir. 2009) (summary order).

The

ALJ may rely on a consultative opinion where it is supported by
substantial evidence in the record.

See Richardson v. Perales,

supra, 402 U.S. at 410; Camille v. Colvin, 652 F. App'x 25, 27-28
(2d Cir. 2016) (summary order); Diaz v. Shalala, 59 F.3d 307, 313
n.5 (2d Cir. 1995); Mongeur v. Heckler, supra, 722 F.2d at 1039.

4.

Credibility

In determining a claimant's RFC, the ALJ is required to
consider the claimant's reports of pain and other limitations, 20
C.F.R. § 416.929, but is not required to accept the claimant's

38

subjective complaints without question.

McLaughlin v. Sec'y of

Health, Educ. & Welfare, 612 F.2d 701, 704-05 (2d Cir. 1980).
"It is the function of the [Commissioner], not [the reviewing
courts], to resolve evidentiary conflicts and to appraise the
credibility of witnesses, including the claimant."

Carroll v.

Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983);
see also Mimms v. Heckler, 750 F.2d 180, 185-86 (2d Cir. 1984);
Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588,
591-92 (2d Cir. 1984).

The ALJ has discretion to assess the

credibility of the claimant's testimony in light of the medical
findings and other evidence in the record.

Marcus v. Califano,

615 F.2d 23, 27 (2d Cir. 1979).
The regulations provide a two-step process for evaluating a claimant's subjective assertions of disability.
At the first step, the ALJ must decide whether the
claimant suffers from a medically determinable impairment that could reasonably be expected to produce the
symptoms alleged. 20 C.F.R. § 404.1529(b). That
requirement stems from the fact that subjective assertions of pain alone cannot ground a finding of disability. 20 C.F.R. § 404.1529(a). If the claimant does
suffer from such an impairment, at the second step, the
ALJ must consider "the extent to which [the claimant's]
symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence" of
record. Id. The ALJ must consider "[s]tatements [the
claimant] or others make about [the claimant's] impairment(s), [the claimant's] restrictions, [the claimant's] daily activities, [the claimant's] efforts to
work, or any other relevant statements [the claimant]
make[s] to medical sources during the course of examination or treatment, or to [the agency] during inter39

views, on applications, in letters, and in testimony in
[its] administrative proceedings." 20 C.F.R. §
404.1512(b)(3); see also 20 C.F.R. § 404.1529(a);
S.S.R. 96-7p.
Genier v. Astrue, supra, 606 F.3d at 49 (alterations and emphasis
in original); see also 20 C.F.R. § 416.929(a); Snyder v. Colvin,
15-3502, 2016 WL 3570107 at *2 (2d Cir. June 30, 2016) (summary
order), citing SSR 16-3P, 2016 WL 1119029 (Mar. 16, 2016).33

The

ALJ must explain a decision to reject a claimant's testimony
"'with sufficient specificity to enable the [reviewing] Court to
decide whether there are legitimate reasons for the ALJ's disbelief' and whether [the ALJ's] decision is supported by substantial evidence."

Calzada v. Astrue, 753 F. Supp. 2d 250, 280

(S.D.N.Y. 2010) (Sullivan, D.J.) (alteration in original),
quoting Fox v. Astrue, 05 Civ. 1599 (NAM)(DRH), 2008 WL 828078 at
*12 (N.D.N.Y. Mar. 26, 2008); see also Lugo v. Apfel, 20 F. Supp.
2d 662, 664 (S.D.N.Y. 1998) (Rakoff, D.J.).

The ALJ's determina-

tion of credibility is entitled to deference.

See Snell v.

Apfel, 177 F.3d 128, 135-36 (2d Cir. 1999) ("After all, the ALJ
is in a better position to decide issues of credibility");
Gernavage v. Shalala, 882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995)
(Leisure, D.J.) ("Deference should be accorded the ALJ's determi-

33

SSR 16-3p supersedes SSR 96-7p, 1996 WL 374186 (July 2,
1996), and clarifies the policies set forth in the previous SSR.
See SSR 16-3P, supra, 2016 WL 1237954.
40

nation because he heard Plaintiff's testimony and observed his
demeanor.").

B.

The ALJ's
Decision

The ALJ applied the five-step analysis described above
and determined that plaintiff was not disabled (Tr. 24-40).
At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity during the relevant
period (Tr. 26).
At step two, the ALJ found that plaintiff suffered from
the following severe impairments:

"right knee arthroscopy,[34]

sleep apnea, asthma, eczema, and obesity" (Tr. 26).
At step three, the ALJ found that plaintiff's disabilities did not meet the criteria of the listed impairments and that
plaintiff was not, therefore, entitled to a presumption of
disability (Tr. 26-27).

In reaching his conclusion, the ALJ

specifically analyzed whether plaintiff met the following listings:

Listing 1.02, Major dysfunction of a joint(s) (due to any

cause), Listing 3.03 Asthma and Listing 3.10 Sleep-related
breathing disorders and noted that there are no specific listings

34

An arthroscopy is a procedure and not an impairment. The
ALJ's discussion, however, makes clear that the ALJ considered
the impact of plaintiff's right knee condition as a severe
impairment.
41

regarding eczema or obesity (Tr. 26-27).

20 C.F.R. Pt. 404,

Subpt. P, App. 1.
The ALJ then determined that plaintiff retained the
RFC to perform sedentary work except that
he can only occasionally climb ramps and stairs, and
never climb ladders, ropes, or scaffolds. He can only
occasionally stoop, crouch, and kneel, and never crawl.
The claimant must avoid concentrated exposure to extreme heat and cold, wetness and humidity, and irritants such as fumes, odors, dust and gases, poorly
ventilated areas, and chemicals. He must avoid all
exposure to moving machinery and unprotected heights.
In addition, the claimant is limited to work allowing
him to be off-task for 5% of the day, in addition to
regularly scheduled breaks.
(Tr. 27).
To reach his RFC determination, the ALJ examined the
opinions of the treating and consulting physicians and assessed
the weight to give to each opinion based on the objective medical
record, including the treatment notes of the physicians who
treated plaintiff subsequent to his alleged onset date (Tr. 2933).
The ALJ gave "some weight" to some of the opinions of
plaintiff's treating pulmonologist Dr. Basit (Tr. 32).

The ALJ

found that Dr. Basit's opinion that plaintiff could lift and
carry up to ten pounds, that he needed to avoid wet conditions,
odors, fumes, temperature extremes, humidity and dust was supported by the evidence and gave this opinion "some weight" (Tr.

42

32).

However, the ALJ found that three of Dr. Basit's opinions

were not supported by the evidence, namely that plaintiff's
fatigue and other symptoms were so severe that they constantly
interfered with his attention and concentration, that plaintiff
needed 15-20 minute unscheduled breaks every two to three hours
and that plaintiff would be absent from work more than three
times a month (Tr. 32).

The ALJ found that these opinions were

not consistent with Dr. Basit's own report that indicated that
plaintiff had moderate asthma symptoms and plaintiff's reports to
Dr. Alla during the same time period (Tr. 32).
The ALJ gave "some weight" to treating surgeon Dr.
Stefanides' opinions that plaintiff could sit for a total of four
hours, stand/walk for up to one hour in an eight-hour workday and
that his symptoms would cause him to be absent from work more
than three times a month (Tr. 32).

The ALJ found that these

opinions were only entitled to "some weight" because Dr.
Stefanides' own report was less "restrictive" and indicated that
plaintiff walked effectively with a cane and was able to take
care of his activities of daily living (Tr. 32).

The ALJ also

noted that the opinions were formed while plaintiff was still
recovering from knee surgery and did not reflect plaintiff's
long-term condition (Tr. 32).

43

The ALJ, however, gave "great weight" to the September
2012 opinion of consultative examiner Dr. Montalvo that plaintiff's severe skin and respiratory impairments caused plaintiff
to have a moderate limitation in walking and climbing stairs and
that he should avoid any dust, environmental pollutants and smoke
(Tr. 32).

The ALJ found that this opinion was supported by

evidence in the record as a whole, which demonstrated that
plaintiff's chronic asthma and eczema were treated with medications and that plaintiff's reports that he could perform activities his usual activities of daily living despite these impairments (Tr. 32).
In reaching his RFC determination, the ALJ also considered plaintiff's testimony and found that while plaintiff's
medically determinable impairments could reasonably have caused
his alleged symptoms, a review of the entire case record showed
that plaintiff's statements regarding their intensity, persistence and limiting effects were not entirely credible (Tr. 29).
The ALJ found that plaintiff's testimony regarding his right knee
pain, asthma and sleep apnea was inconsistent with his contemporaneous reports to Drs. Alla and Stefanides and inconsistent with
the doctors' own assessments of plaintiff's abilities (Tr. 29,
citing Ex. 10F at 4 & Ex. 15F).

For example, plaintiff told Dr.

Alla in August 2013 that he was feeling fine, denied chest pain

44

or shortness of breath (Tr. 29, citing Ex. 10F).

Further, the

ALJ found that plaintiff's testimony regarding the extent of his
limitations was also inconsistent with his own testimony that he
could walk one and a half blocks to church and that he could use
public transportation (Tr. 28-29).
At step four, the ALJ concluded that, based on the
vocational expert's testimony, plaintiff was unable to perform
his past relevant semi-skilled work as an automobile mechanic and
delivery truck driver (Tr. 33).
At step five, again relying on the testimony of the
vocational expert, the ALJ found that jobs existed in significant
numbers in the national economy that plaintiff could perform,
given his RFC, age and education (Tr. 33-34).

The ALJ noted that

the vocational expert testified that given plaintiff's age,
education, work experience and RFC, he could perform the unskilled sedentary work defined in the DOT as addressor, table
worker and order clerk (Tr. 34).

The ALJ noted that (1) the job

of addressor, DOT code 209.587-010, is unskilled sedentary work
and that there are 35,626 such positions nationally; (2) the job
of table worker, DOT code 739.687-182, is unskilled sedentary
work and that there are 13,656 such positions nationally and (3)
the job of order clerk, DOT code 209.567-014, is unskilled
sedentary work and that there are 98,429 such positions nation-

45

ally (Tr. 34).

Concluding that the expert's testimony was

consistent with information in the DOT, the ALJ determined
plaintiff could perform those occupations and accordingly was not
disabled (Tr. 34).

C.

Analysis of the
ALJ's Decision

Plaintiff argues that the ALJ's decision should be
reversed because the ALJ did not give adequate deference to the
opinions of plaintiff's treating physicians and because the ALJ
failed to evaluate plaintiff's credibility properly (Pl. Mem. of
Law in Support of Judgment on the Pleadings, dated February 5,
2016, (D.I. 20) ("Pl. Mem.")).

The Commissioner contends that

the ALJ correctly applied the relevant legal principles and that
his decision was supported by substantial evidence (Def. Mem. of
Law in Support of Judgment on the Pleadings, dated May 6, 2016
(D.I. 26)).

1.

Treating Physician Rule

Although the ALJ did not expressly address the six
factors relevant to evaluating a treating physician's opinion,
the ALJ provided good reasons for affording less weight to the
plaintiff's treating physicians' opinions.

46

The ALJ's decision to give Dr. Stefanides' October 25,
2013 opinion less than controlling weight was not erroneous
because the opinion was contradicted in part by the doctor's own
objective findings in plaintiff's treatment records.

One month

after plaintiff's knee surgery, Dr. Stefanides opined that
plaintiff's limitations were so severe that they would likely
cause him to be absent from work more than three times a month
(Tr. 350).

The doctor also indicated that it was "unknown"

whether plaintiff's limitations would last for 12 consecutive
months as required for a finding of disability (Tr. 32, 350).
Because his opinion did not state whether plaintiff's limitations
would persist past the short-term post-operative stage, the ALJ
gave it only some weight in determining plaintiff's RFC (Tr. 32,
350).35

As the ALJ noted (Tr. 29-30), the record indicates that

plaintiff's condition improved after October 2013 (Tr. 405, 407).

35

Dr. Stefanides also stated that the "earliest date that
the description of symptoms and limitations in [the]
questionnaire applies" was "approximately 8/2012" (Tr. 351).
However, plaintiff's first visit with Dr. Stefanides was in
August 2013, not 2012 -- therefore, Dr. Stefanides' opinion would
have been based entirely on plaintiff's own statements about when
the pain first started (Tr. 345). Stefanides' initial visit
notes indicate that plaintiff told him that his knee pain started
a year earlier, i.e., in August 2012 (Tr. 315). However, as
indicated above, in September of 2012, plaintiff did not complain
of knee pain to Dr. Montalvo during a consultative examination
(Tr. 283-86). Dr. Montalvo also conducted a physical examination
in which she found that plaintiff had full range of motion in
both knees and full strength in both lower extremities (Tr. 28384).
47

Plaintiff's physical therapist noted in November 2013 that
plaintiff had full extension of his knee (Tr. 354).

Plaintiff's

strength had improved by the end of January 2014 to 5 out of 5 in
all muscle groups (Tr. 401).

Dr. Stefanides indicated on Febru-

ary 17, 2014 that plaintiff had "significant relief" from pain as
a result of Orthovisc injections and found that overall there had
been "definite improvement, with no new problems or positive
findings" (Tr. 411).

Therefore, Dr. Stefanides' statement in the

October 2013 opinion that the duration of plaintiff's limitations
was unknown and the treatment records that show that there was
improvement in plaintiff's pain after physical therapy and
Orthovisc injections further support the ALJ's decision to give
less than controlling weight to Dr. Stefanides' October 2013
opinion.
On the other hand, in finding that plaintiff could do
sedentary work with additional restrictions, the ALJ took into
account Dr. Stefanides's assessment that plaintiff's right knee
impairment would limit his ability to sit and stand during the
workday (Tr. 32-33).

Before the improvements in plaintiff's

conditions described above, Dr. Stefanides opined that plaintiff
could sit for up to four continuous hours in an eight hour
workday (Tr. 348).

Further, Dr. Stefanides did not opine that

plaintiff could not stand at all; rather, he concluded that

48

plaintiff could stand for up to one hour in an eight hour workday
and could walk with a cane (Tr. 347-48).

Sedentary jobs require

sitting for approximately six non-continuous hours in an eighthour workday and walking and standing "occasionally," which would
generally total no more than about 2 hours of an 8-hour workday.
See Social Security Ruling 96-9P, 1996 WL 374185 at *3 (SSA July
2, 1996).

The ALJ also further restricted this sedentary work

activity by indicating that plaintiff would need to be off task
for five percent of the workday, in addition to regularly scheduled breaks (Tr. 27).

Given the improvements in plaintiff's

functioning noted by Dr. Stefanides following his October 2013
assessment, the ALJ's finding that plaintiff could perform the
sitting and standing requirements of sedentary work, with additional restrictions, took into account both Dr. Stefanides'
opinions and the objective findings.

The ALJ's RFC finding also

incorporated other limitations noted by Dr. Stefanides, including
that plaintiff could only occasionally climb ramps and stairs,
stoop, crouch or kneel and never crawl or climb ladders, ropes or
scaffolds (Tr. 27, 32, 347-48).

Therefore, the ALJ's decision to

give only "some weight" to Dr. Stefanides' opinions regarding
plaintiff's limitations immediately following his surgery and to
rely more heavily on the doctor's treatment records was supported
by good reasons.

49

The ALJ also gave good reasons for giving only "some
weight" to Dr. Basit's December 2013 Opinion that plaintiff's
symptoms were so severe that he would need unscheduled breaks
every two to three hours and would be absent from work more than
three times a month, namely, the doctor's treatment records and
objective testing did not support the opinion (Tr. 28-29, 32).
As noted above, it was well-established from the medical records
that plaintiff's asthma, even by Dr. Basit's own assessment, was
of moderate severity and was controlled by medication (Tr. 32,
323-24).

In October 2013, plaintiff reported to Dr. Alla that he

was feeling fine and did not have chest pain, shortness of
breath, and palpitation either at rest or with exertion (Tr. 29395; see also Tr. 311, 313, 315, 405, 407, 409 (September 2013
through January 2014 treatment notes from Dr. Stefanides indicating that plaintiff denies having a cough, shortness of breath
chest pain or wheezing)).

As for plaintiff's sleep apnea, which

plaintiff argues is his "primary disabling pulmonary issue" (Pl.
Mem. at 11), there is evidence that it too improved with treatment (Tr. 30, 337).

Plaintiff's second sleep test demonstrated

that CPAP therapy was effective in treating plaintiff's sleep
apnea (Tr. 30, 392).

The study indicated that, with the proper

amount of pressure, "substantial improvement in obstructive
apneic and hypopneic events [was] noted" and Dr. Basit recom-

50

mended that plaintiff continue with a treatment trial of CPAP
using that level of pressure (Tr. 392).

Thus, the ALJ did not

err in finding that Dr. Basit's opinion regarding the long-term
severity of plaintiff's asthma and sleep apnea was contradicted
by the treatment record.
Further, although the ALJ found that Dr. Basit's
opinion that plaintiff would need to be off task 15-20 minutes
every two to three hours was unsupported by the medical record,
the ALJ found that plaintiff was limited to work that allowed him
to be off-task for five percent of the day in addition to regularly scheduled breaks (Tr. 27).

This assessment was consistent

with the treatment notes that indicate that plaintiff's sleep
apnea improved with treatment, his asthma was under control, and
he had no shortness of breath, wheezing, chest pain or cough as
long as he complied with his medication regimen (Tr. 291-96, 311,
313, 323-25, 343, 405, 407, 409).

Indeed, there is no evidence

that plaintiff's asthma or sleep apnea stopped him from accomplishing his activities of daily living (Tr. 29, 143).

The ALJ's

assessment of plaintiff's need for breaks, therefore, took into
account the possibility that plaintiff's asthma and sleep apnea
may require him to take some unscheduled breaks.
Finally, the ALJ did give weight to those portions of
Dr. Basit's opinion that were not contradicted by the medical

51

record.

The ALJ relied on Dr. Basit's opinion that plaintiff

must avoid concentrated exposure to extreme heat and cold, wet
conditions and humidity and irritants such as fumes, odors, dust
and gases, poorly ventilated areas and chemicals (Tr. 27, 32).
The ALJ also gave weight to Dr. Basit's opinion regarding plaintiff's ability to lift and carry up to ten pounds in finding that
plaintiff was limited to sedentary work.

See Social Security

Ruling 96-9P, supra, 1996 WL 374185 at *6.
The ALJ also did not err in giving "great weight" to
Dr. Montalvo's September 2012 assessment of plaintiff's respiratory and skin impairments.

Plaintiff argues that Dr. Montalvo's

assessment was flawed because Dr. Montalvo failed to consider the
effects of plaintiff's torn meniscus or his sleep apnea, which
are the "primary causes of [his] disability" (Pl. Mem. at 12).
However, the ALJ did not rely on Dr. Montalvo's report to analyze
those conditions because there is no evidence that plaintiff was
being treated for or was complaining of these impairments as of
the date of Dr. Montalvo's examination (Tr. 283).

Rather, the

ALJ relied on Dr. Montalvo's opinion concerning the effects of
plaintiff's chronic asthma and eczema on his ability to function
on a daily basis (Tr. 32).

The ALJ found that Dr. Montalvo's

assessment -- based on plaintiff's statements to her and a
physical examination -- that plaintiff had "moderate" limitations

52

on his ability to walk and climb stairs and that he should avoid
dust, environmental pollutants and smoke was consistent with the
medical treatment records from plaintiff's treating physicians
which showed that plaintiff's respiratory and skin conditions
were treated with medication (Tr. 32, 286).

Although Dr.

Montalvo conducted a physical examination of plaintiff's knees,
the ALJ did not rely on the findings from that examination to
assess plaintiff's knee impairment, which developed at a later
time (Tr. 29, 31-32).

Rather, the ALJ only noted that plaintiff

made no complaints about his knee to Dr. Montalvo (Tr. 29).
Therefore, the ALJ did not err in relying on Dr. Montalvo's
assessment of the limiting effects of plaintiff's asthma and
eczema.
Plaintiff also argues that the ALJ committed error in
relying on Dr. Montalvo's opinion because there is no evidence
that Dr. Montalvo reviewed plaintiff's medical records.

Plain-

tiff is correct that, generally, opinions from consultative
physicians are not entitled to significant weight, in particular
where the physicians do not have the benefit of the complete
medical record.

See Selian v. Astrue, supra, 708 F.3d at 419

("We have previously cautioned that ALJs should not rely heavily
on the findings of consultative physicians after a single examination." (citation omitted)); Tarsia v. Astrue, 418 F. App'x 16,

53

18 (2d Cir. 2011) (summary order) ("Because it is unclear whether
[the consulting physician] reviewed all of [plaintiff's] relevant
medical information, his opinion is not 'supported by evidence of
record' as required to override the opinion of [the] treating
physician"); Gunter v. Commissioner of Social Security, 361 F.
App'x 197, 200 (2d Cir. 2010) (summary order) ("Consideration of
[plaintiff's] entire medical records might have altered [the nonexamining doctor's] conclusions."); but see Camille v. Colvin,
supra, 2016 WL 3391243 at *3 n.4 ("No case or regulation [plaintiff] cites imposes an unqualified rule that a medical opinion is
superseded by additional material in the record, and in this case
the additional evidence does not raise doubts as to the reliability of [the consulting doctor's] opinion.").

Here, however, the

ALJ found that the consulting examiner's opinions were consistent
with the treatment records, and plaintiff has not identified any
evidence that should have altered Dr. Montalvo's conclusions
regarding plaintiff's asthma and eczema.

The ALJ found that Dr.

Montalvo's assessment of plaintiff's asthma and eczema was
supported by other evidence in the record which showed that these
conditions were successfully treated with medication and that,
despite these impairments, plaintiff felt better and retained the
physical capacity to perform sedentary work with additional

54

restrictions (Tr. 31-32, 96, 347-48, 323-25, 311, 313, 343, 405,
407, 409).
Thus, the ALJ carefully summarized the medical evidence
from numerous treating physicians, described plaintiff's physical
symptoms and progress and fairly assessed plaintiff's RFC based
on those opinions that were supported by the substantial evidence
in the record.

2.

Credibility

The ALJ's analysis of the credibility of plaintiff's
testimony about the pain and limitations caused by his knee
condition, asthma and sleep apnea parallels his assessments of
the reports of plaintiff's treating and consulting physicians.
As discussed above, although plaintiff had these severe conditions, the evidence in the record demonstrated that these conditions improved with treatment prescribed or administered by
plaintiff's treating physicians.

Thus, the ALJ's credibility

assessment was supported by substantial evidence.
With respect to plaintiff's asthma, plaintiff's testimony that he was using an inhaler several times a day (Tr. 53)
was inconsistent with his reports to his doctors.

The treatment

notes indicated that plaintiff's asthma was moderate and controlled when plaintiff followed his medication regimen.

55

From

June through September 2013, plaintiff took medication for his
asthma and reported to Dr. Alla that he had no complaints of
chest pain or shortness of breath; Dr. Alla advised plaintiff to
continue taking his medication and engage in at least a few hours
of moderate aerobic exercise weekly (Tr. 291-95, 300-04).

In

September 2013, two months before the hearing, plaintiff reported
to Dr. Alla that he felt fine and denied any symptoms of chest
pain, shortness of breath and palpation, either at rest or with
exertion (Tr. 293-94).

Plaintiff also told Dr. Alla that he had

stopped taking his asthma medication for a few days and the
doctor had to reinforce with plaintiff the importance of taking
his medication on a regular basis (Tr. 295).

Plaintiff also

consistently told Dr. Stefanides that he did not suffer from
shortness of breath, cough or wheezing (Tr. 311, 313, 315, 405,
407, 409).

In Dr. Basit's December 2013 Opinion, he character-

ized plaintiff's asthma attacks as "moderate" and stated that
plaintiff needed albuterol a few times a week (Tr 324).

In a

progress report from that month Dr. Basit also reported that
plaintiff had "normal breath sounds" in his chest (Tr. 384).
During a January 2014 visit with Dr. Basit, plaintiff denied
having any chest pain or cough, and Dr. Basit again found that
plaintiff had "normal breath sounds" in his chest (Tr. 385).
Thus, the ALJ's finding that plaintiff's testimony concerning the

56

severity of his asthma was not entirely credible was not erroneous.
Further, plaintiff's testimony that he had "extreme"
pain in his knee that severely limited his ability to function
(Tr. 53-55, 63) was contradicted by the record that showed that
his limitations and pain improved after surgery and treatment.
Following his surgery, Dr. Stefanides reported that plaintiff
walked effectively with a cane, could bathe and dress himself,
prepare meals and travel without assistance (Tr. 29, 311, 347-48;
see also 285, 294, 298, 301, 303-04, 329, 333).

Dr. Stefanides

stated that medication was completely successful in relieving
plaintiff's knee pain (Tr. 348).

Further, the record shows that

physical therapy and Orthovisc injections subsequent to the
hearing were effective in alleviating plaintiff's pain (Tr. 398400, 405, 407, 409, 411).

The ALJ also noted that plaintiff

testified that he could go out alone and use public transportation (Tr. 46-49).

Thus, the ALJ did not err in finding that

plaintiff's testimony about the extent of his knee pain was
contradicted by the medical record.
The ALJ also considered plaintiff's testimony concerning his sleep apnea to the extent it was consistent with the
evidence.

Plaintiff testified that his sleep apnea was so

disabling that he was constantly falling asleep and could only go

57

out for short periods of time to get fresh air (Tr. 55-56).
However, in August 2012, plaintiff reported to SSA that he went
to the movies, went fishing and visited his children on a regular
basis (Tr. 195).

At the hearing, plaintiff also testified that

he went to church, (Tr. 48), and the record reflects that he
regularly attended doctor's appointments.

Further, the record

shows that plaintiff's sleep apnea improved in January 2014 with
CPAP treatment (Tr. 392).

This evidence contradicts plaintiff's

testimony that his sleep apnea prevented him from doing anything
at all.

Further, based, in part, on plaintiff's sleep apnea, the

ALJ concluded that plaintiff could not return to his previous
work, which required him to drive a truck, but that he could
return to sedentary work with additional limitations.

Thus, the

ALJ's credibility assessment, which recognized that plaintiff had
severe impairments that affected his RFC, but not to the extent
claimed by plaintiff, was not erroneous.
Although plaintiff argues that the ALJ should not have
relied on evidence of plaintiff's ability to conduct his activities of daily living to determine plaintiff's physical limitations, that evidence was directly relevant to plaintiff's condition and how it improved over time.

At plaintiff's initial

consultation with Dr. Stefanides in August 2013, plaintiff
reported that the knee pain was interfering with his ability to

58

conduct his activities of daily living (Tr. 315).

However, in

October 2013 after plaintiff's surgery, Dr. Stefanides reported
that plaintiff could walk with a cane, bathe and dress himself,
prepare meals and travel to appointments without assistance (Tr.
32, 311, 347-48).

Plaintiff also admitted at the hearing that he

traveled to the hearing by train and walked to church, about one
and one-half blocks away from his apartment (Tr. 45, 48-49).
Although Plaintiff complained of difficulty in using stairs, he
was able to live in a second-floor apartment in a building
without an elevator (Tr. 46-47, 56).

"Evidence that a plaintiff

is capable of participating in various activities of daily living
despite allegations of severe pain can support a determination
that a plaintiff can perform sedentary work."

Niven v. Barnhart,

03 Civ. 9359 (DLC), 2004 WL 1933614 at *6 (S.D.N.Y. Sept. 1,
2004) (Cote, D.J.), citing Rivera v. Harris, 623 F.2d 212, 216
(2d Cir. 1980) (noting that the plaintiff's testimony showed that
"despite her pains and shortness of breath, she can cook, sew,
wash and shop, so long as she does these chores slowly and takes
an afternoon rest" and that this testimony "did not preclude the
possibility that [the plaintiff] could perform gainful activity
of a light, sedentary nature").

Thus, in assessing plaintiff's

RFC, the ALJ appropriately considered plaintiff's ability to

59

perform activities of daily living and how it improved with
treatment.
Plaintiff cites a Court of Appeals decision from 1983
for the proposition that a plaintiff with "a good work record is
entitled to substantial credibility when claiming inability to
work because of a disability."
719, 725 (2d Cir. 1983).

Rivera v. Schweiker, 717 F.2d

Plaintiff had earnings in every year

since 1986, when he turned 14 years old, and continued to work
until the time he was terminated from his job in 2011 (Tr. 171).
"Work history, however, is 'just one of many factors' appropriately considered in assessing credibility."

Wavercak v. Astrue,

420 F. App'x 91, 94 (2d Cir. 2011) (citation omitted); accord
Carvey v. Astrue, 380 F. App'x 50, 53 (2d Cir. 2010).

Here,

although the ALJ did not discuss plaintiff's long work history,
he nonetheless gave good reasons for his credibility finding.
The ALJ found that plaintiff's testimony regarding the extent of
his limitations was inconsistent with plaintiff's statements to
his doctors and the objective medical evidence.
did credit much of plaintiff's testimony.

Further, the ALJ

The ALJ relied on

plaintiff's testimony regarding his limitations to find that
plaintiff could not do his past relevant work and to find that
plaintiff had additional limitations with respect to his ability
to do sedentary work (Tr. 27-29, 33).

60

Thus, the ALJ's decision to disregard plaintiff's
testimony that his physical limitations were so disabling that he
could not work at all was supported by the credible evidence in
the record.

3.

ALJ's Analysis at
Step Five: Vocational Assessment

The ALJ reasonably relied on the testimony of a vocational expert and determined at step five that plaintiff was able
to perform other work in the national economy, considering his
age, education, work experience and RFC (Tr. 33-34).
Because plaintiff had both exertional and
non-exertional limitations, the ALJ properly enlisted the assistance of a vocational expert to assess what kind of work existed
in the national economy that plaintiff could perform.

The ALJ

posed a hypothetical to the expert that asked him to identify the
jobs an individual with plaintiff's RFC and vocational profile
could perform (Tr. 68-71).

The ALJ's hypothetical to the voca-

tional expert, as well as the ALJ's decision at steps four and
five, were based on RFC assessments that, as detailed above, were
supported by substantial evidence.

As noted above, the voca-

tional expert identified three jobs in the national economy that
plaintiff could perform with these limitations (Tr. 68-71).

The

expert gave the number of these jobs in the regional economy, and
61

the ALJ's decision cited to the number of these jobs that exist
in the national economy as well (Tr. 34).

Thus, the vocational

expert's testimony, based on plaintiff's RFC, satisfied the
Commissioner's burden of showing the existence of alternative
substantial gainful employment suited to plaintiff's physical and
vocational capabilities.

Accordingly, the ALJ correctly con-

cluded that plaintiff was not disabled.

4.

Summary

In coming to his finding that plaintiff was not disabled, the ALJ acknowledged the evidence in the record that
supported plaintiff's physical limitations and balanced that
evidence against the conflicting evidence.

Although some of

plaintiff's doctors opined that plaintiff had more substantial
limitations at certain points in time, the evidence showed that
these limitations were not permanent and were alleviated with
treatment.

The ALJ therefore gave more weight to the opinions of

the treating and consulting physicians where those opinions were
supported by the treatment records during the relevant time
period.

The ALJ's finding that plaintiff could do sedentary work

with additional limitations was supported by the substantial
evidence in the record.

62

IV.

Conclusion

For all the foregoing reasons, plaintiff's motion for
judgment on the pleadings

(Docket Item 19) is denied and the

Commissioner's motion for judgment on the pleadings
25)

(Docket Item

is granted.

Dated:

New York, New York
February 27, 2017
SO ORDERED

H&kz~

United States Magistrate Judge

Copies transmitted to:
Charles E. Binder, Esq.
Binder and Binder P.C.
Suite 520
60 East 42nd Street
New York, New York 10165
Jeannette Vargas, Esq.
United States Attorney's Office
Southern District of New York
86 Chambers Street
New York, New York 10007

63