Galente v. Colvin

Filing 21

OPINION re: 20 JOINT MOTION for Judgment on the Pleadings (JOINT STIPULATION) filed by Carolyn Colvin. For the foregoing reasons, Plaintiff's motion is DENIED, and the Commissioner's motion is GRANTED. The Clerk of Court is respectfully directed to close this case. (Signed by Magistrate Judge Katharine H. Parker on 2/12/2018) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

2/12/2018

RINO GALENTE,
Plaintiff,

OPINION

– against –

1:16-cv-09981 (KHP)

ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Rino Galente (“Plaintiff”) commenced this action against Defendant Commissioner of
the Social Security Administration (the “Commissioner”), pursuant to the Social Security Act
(the “Act”), 42 U.S.C. § 405(g), seeking review of the Commissioner’s decision that Plaintiff’s
disability under Sections 216(i) and 223(f) of the Act ended as of September 27, 2013.
At my direction, the parties filed a Joint Stipulation that sets out their respective
positions in lieu of cross-motions for judgment on the pleadings. (Doc. No. 20.) For the reasons
set forth below, the Commissioner’s motion is GRANTED and Plaintiff’s motion is DENIED.
BACKGROUND
I.

Summary Of Claim And Procedural History
Plaintiff suffers from knee impairments stemming from a motor vehicle accident.

(Administrative Record (“Tr.”) 281.) Since at least 2008, Plaintiff has been treated by numerous
doctors, underwent knee surgery, and has been taking pain medicine, all with varying degrees
of success.
In 2010, the Social Security Administration (“SSA”) found Plaintiff disabled as of April 2,
2008, at which time Plaintiff’s medically-determined impairments included bilateral knee

1

impairments that met Listing 1.03 (reconstructive surgery or surgical arthrodesis of a joint(s)
(due to any cause)). (Tr. 99-102.); 20 C.F.R. Part 404, Subpart P, Appendix 1. On July 26, 2013,
Plaintiff’s disability was determined to have continued until that date. (Tr. 103-04.) However,
the SSA subsequently decided that as of September 27, 2013, Plaintiff was no longer disabled
due to medical improvement. (Tr. 122-24.) On March 12, 2014, this determination was upheld
upon reconsideration after a disability hearing by a state agency Disability Hearing Officer. (Tr.
126- 28.)
Plaintiff timely filed a written request for a hearing before an Administrative Law Judge
(“ALJ”). (Tr. 141.) On August 4, 2015, Plaintiff appeared with counsel and testified at a hearing
held before ALJ Vincent M. Cascio. (Tr. 59-94.) Robert Baker, an impartial vocational expert,
also testified at the hearing. (Id.)
On August 27, 2015, the ALJ issued a written decision upholding the determination that
Plaintiff was no longer disabled. (Tr. 11-28.) Plaintiff appealed the ALJ’s decision to the Appeals
Council, which denied Plaintiff’s request for review on December 2, 2016. (Tr. at 1.)
Consequently, Plaintiff filed the instant action, seeking review of the ALJ’s decision. (Doc. No.
1.)
II.

The Administrative Record
The Parties have stipulated to the following statement of facts, (see Doc. No. 20), which

the Court summarizes below.
a. Non-Medical Evidence
i. CDIU’s Summary Report Of Investigation
In September 2012, the Cooperative Disability Investigations Unit (“CDIU”) received a

2

referral from SSA for a review and surveillance of Plaintiff to determine his level of
functioning as part of SSA’s continuing disability review. (Tr. 284.) The CDIU noted that
Plaintiff had sustained injuries to his right knee in 1994 and 2007, which necessitated
surgeries. (Tr. 283.) The result of the CDIU’s investigation is set forth in a Summary Report of
Investigation (“CDIU Report”) dated July 20, 2013. (Tr. 280-88.)
On October 26, 2012, a New York State (“NYS”) investigator conducted surveillance of
Plaintiff near his residence in New York. (Tr. 285.) The investigator reported that he observed
Plaintiff parking a white van with Plaintiff’s first name (“Rino”) painted on it. (Id.) The van had
a ladder on the roof and lettering stating: “Handy-Man Plus, Residential Specialist, Home
Improvement and Licensed and Insured,” and provided a telephone number. (Id.) Plaintiff was
seen exiting the driver’s seat of the vehicle and entering and exiting a store. (Tr. 285.)
According to the investigator, during this surveillance, Plaintiff did not exhibit any obvious
physical limitations or restrictions. (Id.) He entered and exited his vehicle, walked without any
obvious difficulty, and did not use a cane. (Id.) Plaintiff also did not display any pain, fatigue, or
unsteadiness, and he drove his van, shopped, and ambulated in a normal manner. (Id.)
On April 11, 2013, NYS investigators conducted a second surveillance of Plaintiff. (Tr.
286.) They observed Plaintiff driving a car to SSA’s District Office in New York. (Tr. 286.)
According to the investigators, Plaintiff was observed walking into and out of two buildings
holding his cane in his hand, rather than using the cane. (Tr. 286-87.) Plaintiff did not display
any pain, fatigue, or unsteadiness, was able to lift and carry items, and drove his vehicle and
functioned independently in a normal manner. (Tr. 286-87.)
On July 12, 2013, NYS investigators conducted a third surveillance of Plaintiff in New

3

York. (Tr. 287.) According to the investigators, Plaintiff was wearing a knee brace on each knee
and was seen touching a cane to the ground with every other step, without appearing to put
much weight on the cane. (Id.) He walked at a normal rate and was later seen carrying the
cane without using it. (Id.) He was also observed that same day exiting his vehicle and entering
a restaurant without his cane. (Id.) During the surveillance, Plaintiff did not exhibit any obvious
physical limitations or restrictions, and he did not display any pain, fatigue, or unsteadiness.
(Id.)
ii. The August 4, 2015 Administrative Hearing
On August 4, 2015, a hearing concerning Plaintiff’s continued disability was held at
Plaintiff’s request. (Tr. 59-94.) Plaintiff appeared with counsel, and a vocational expert also
testified at the hearing. (Id.) Counsel represented to the ALJ that the medical evidence was upto-date and otherwise complete. (Tr. 63, 92.)
Plaintiff testified that he had an Anterior Cruciate Ligament (“ACL”) reconstruction
surgery, a second surgery to replace a knee ligament, and eventually total knee replacement
in his right knee, and that delay in surgery caused over-use damage to the cartilage in his left
knee and discomfort in his right foot. (Tr. 66-67, 70-71.) He took Percocet for the pain, which
allowed him to walk around and move. (Id.) Plaintiff testified that he was also waiting for the
Worker’s Compensation Board to approve revision surgery on his right knee, and waiting for
injections and other surgery for his left knee. (Tr. 67.)
Plaintiff testified that he could walk “500 to a thousand feet with no problem
probably,” but that it was difficult for him to sit, including during the hearing, because he also
had back pain. (Tr. 71-72.) Plaintiff estimated that he could sit at most ten minutes, stand in

4

place for five to ten minutes, and lift or carry about three pounds “at least.” (Tr. 72.) Plaintiff
testified that he had no problems using his hands but felt pain in his back and shoulders when
he reached over his head, and he had problems going up and down stairs. (Id.) Plaintiff stated
that he had some difficulty taking a shower and dressing himself, but he was able to manage
with Percocet. (Tr. 77.) Plaintiff also noted difficulty walking on any surface due to problems
with his back, both knees, and the arches of his feet. (Tr. 81.) Plaintiff reported constipation
as a side effect of Percocet. (Tr. 78.)
Plaintiff testified that he always wore a knee brace and used a cane most of the time.
(Tr. 72-73, 80-81.) He explained, that on occasion, he tried to practice keeping his balance
without the cane, which he was able to do when he took Percocet, and that his doctor, Dr.
Zelicof, advised him not to constantly use his cane to strengthen his muscles. (Tr. 72-73, 80.)
Plaintiff reported going to physical therapy once a week, which was helpful. (Tr. 73.)
Plaintiff testified that he lived alone and did his own chores, which included wiping
down the counters and wooden floors, using the microwave for meals, shopping every four
days for essentials, and doing laundry once every two-to-three weeks in the house, (Tr. 69,
78), while his son did the yard work. (Tr. 79.) Plaintiff testified that he could not afford to go
out socially and spent his day watching TV, going to therapy, and going to the gym for 15-30
minutes so that he could try to walk correctly with the help of his cane. (Tr. 79-80.) Plaintiff
testified that he had a valid driver’s license and drove to doctor’s appointments, physical
therapy, and stores for food and other essentials. (Tr. 70.)
Plaintiff testified that he completed the eleventh grade and then obtained a General
Equivalency Diploma. (Tr. 70.) Around 2005/2006, Plaintiff worked at HK Laundry Equipment,

5

where he cleaned vents, dryers, and hoses. (Tr. 82.) Plaintiff injured his knee at work during a
car accident in 2007 and has not worked since. (Tr. 74, 76.) Plaintiff stated that his past work
also involved window installations and handyman work and that he had bought a truck and
incorporated his own business after the car accident, in case he was able to return to work.
(Tr. 74-75.)
Robert Baker, a vocational expert (“VE”), also testified at the hearing. (Tr. 83-91.) The
VE testified that Plaintiff’s former work as a carpenter was at a medium level of exertion, had
a specific vocational preparation (“SVP”) of 7, and was listed at DOT code 860.381-022. (Tr.
84.) The VE further testified that Plaintiff’s former work as a machine cleaner was listed as
helper/janitor, DOT code 381.687-018, involved medium level exertion, and had an SVP of 2.
(Tr. 84-85.)
The ALJ then asked the VE to assume a hypothetical worker with Plaintiff’s age,
education, work experience, and the residual functional capacity (“RFC”) to perform light
work, except that he could only occasionally climb ramps and stairs; never climb ropes, ladders
or scaffolds; occasionally balance, stoop, crouch, kneel and crawl; and should avoid exposure
to unprotected heights or hazardous machinery. (Tr. 85.) When asked whether such a
hypothetical worker could perform any of Plaintiff’s past work as it had been actually
performed by Plaintiff or as generally performed in the national economy, the VE replied no.
(Id.) However, the VE testified that such a worker could perform the following light-level work:
cleaner/housekeeper, DOT code 323.687-014, SVP of 2; marker II, DOT code 920.687-126, SVP
of 2; and cleaner/polisher, DOT code 709.687-010, SVP of 2. (Tr. 85-86.)

6

For the second hypothetical, the ALJ asked the VE to assume a hypothetical worker
with Plaintiff’s age, education, work experience, and the RFC to perform sedentary work. (Tr.
86.) The VE testified that such a worker would not be able to perform Plaintiff’s past relevant
work but would be able to do sedentary work, including: order clerk (food and beverage),
DOT 209.567-014, SVP of 2; callout operator, DOT code 237.367-014, SVP of 2; and
telephone quotation clerk, DOT 237.367-046, SVP of 2. (Tr. 86-87.)
The ALJ’s third hypothetical was the same as the second except that the hypothetical
worker had the following additional limitations: he could occasionally climb ramps and stairs;
could never climb ropes, ladders, or scaffolds; could occasionally balance, stoop, crouch,
kneel and crawl; should avoid exposure to unprotected heights or hazardous machinery;
required the ability to alternate sitting and standing at will provided that he is not off-task
more than five percent of the workday; and was limited to jobs that can be performed while
using a hand-held device. (Tr. 87.) The VE testified that such a worker would not be able to
perform Plaintiff’s past relevant work but would be able to perform the three sedentary jobs
identified in response to the second hypothetical. (Tr. 87-88.)
The ALJ’s fourth hypothetical was the same as the third except that the hypothetical
worker needed to alternate sitting and standing positions every thirty minutes throughout
the workday. (Tr. 88.) The VE testified that such a worker could not perform Plaintiff’s prior
relevant work but would be able to perform the three sedentary jobs identified in response
to the second hypothetical so long as the worker remained on task for at least 85% of the
workday. (Tr. 88-89.) The VE clarified that being off-task more than fifteen percent of the
workday would rule out all employment. (Tr. 89.)

7

The ALJ’s fifth hypothetical to the VE was the same as the fourth except that the
hypothetical worker would be off-task twenty percent of the workday. (Tr. 89.) The VE
testified that such a worker was unemployable. (Tr. 89.)
Plaintiff’s counsel then asked the VE to consider a modified version of the ALJ’s
fourth hypothetical in which the hypothetical worker was further limited to reaching in all
directions only on an occasional basis bilaterally. (Tr. 90.) The VE testified that such a worker
could perform the job of callout operator, which he had identified earlier, because it only
required occasional reaching. (90-91.)
Plaintiff’s counsel then asked the VE to consider a hypothetical worker who could
stand or walk for less than two hours, and sit less than six hours, in an eight-hour workday.
(Tr. 91.) The VE testified that such a worker was unemployable. (Id.) Finally, Plaintiff asked
the VE to consider a hypothetical worker who was limited to sedentary work with the
following additional limitations: occasional lifting of less than ten pounds; occasional sitting
and standing; pushing and pulling up to five pounds; no climbing, balancing, kneeling,
crouching, crawling or stooping; and occasional reaching in all directions. (Id.) The VE
testified that such a worker was unemployable. (Id.)
b. Medical Evidence
i. Dr. Steven Zelicof
Dr. Steven Zelicof is an orthopedic surgeon who performed Plaintiff’s right total knee
replacement in March 2012. (Tr. 237-40, 337-40.) At a follow-up appointment on April 30,
2012, Dr. Zelicof noted that Plaintiff reported pain with stairs and walking, needed a cane for
support, could walk more than ten blocks, and could go up/down stairs using a rail. (Tr. 330.)

8

Plaintiff was able to stand up from a chair without using his hands but experienced anterior
knee pain and painful crepitus, both of which were noted as “improving.” (Id.) Dr. Zelicof
noted that Plaintiff was taking Oxycodone and scheduled a follow-up in six weeks. (Id.)
At the follow-up on June 11, 2012, Dr. Zelicof remarked that, “[o]verall, [Plaintiff] is
definitely doing better after his right total knee replacement.” (Id.) On examination, Plaintiff
could flex the right knee to 115 degrees and had full extension, but he still had some
weakness on the quadriceps and continued to experience some buckling or giving way
associated mostly with quadriceps weakness. (Id.) Plaintiff also continued to use a cane for
balance and felt knee discomfort. (Id.) Dr. Zelicof expected a long period of recovery due to
Plaintiff’s long history of knee problems, including ACL reconstruction and secondary
arthrosis, and recommended physical therapy and aqua therapy. (Id.) Dr. Zelicof noted that
Plaintiff reported pain with stairs and walking and needed a cane for support, but that
Plaintiff could walk five to ten blocks and could go up/down stairs using a rail. (Tr. 329.)
Plaintiff could not stand up from a chair without using his hands and experienced anterior
knee pain and painful crepitus. (Id.) Dr. Zelicof noted that Plaintiff was taking Percocet and
scheduled a follow up in six weeks. (Id.)
At the follow-up appointment on July 23, 2012, Plaintiff could flex the right knee to
130 degrees and had full extension, but he still reported pain with walking and stairs. (Tr.
328.) Dr. Zelicof noted that Plaintiff could walk five to ten blocks with the support of a cane
and go up/down stairs using a rail. (Id.) Plaintiff could stand up from a chair without using his
hands but experienced anterior knee pain and painful crepitus. (Id.) Dr. Zelicof noted that

9

Plaintiff was taking Percocet and this time scheduled a follow up in twelve weeks and opined
that Plaintiff could “return to work light duty.” (Id.)
On November 5, 2012, Plaintiff reported occasional pain and that he took Oxycodone
for relief. (Tr. 320.) On examination of the right knee, Plaintiff had no pain, could flex to 120
degrees, had some instability, had unlimited walking ability with the support of a cane, had
normal ability to go up/down stairs, could stand up from a chair without using his hands, and
experienced no anterior knee pain or painful crepitus. (Id.) Dr. Zelicof asked Plaintiff to return
for a follow-up in six months. (Tr. 321.)
On May 6, 2013, Dr. Zelicof reported that Plaintiff was “doing better” overall but still
had some occasional stiffness in his right knee, particularly with standing for long periods of
time. (Tr. 317.) Plaintiff’s symptoms were aggravated by the weight he had gained, and he
also reported some discomfort associated with his left knee. (Id.) On examination of the right
knee, Plaintiff had no pain, could flex to 120 degrees “essentially painless,” had some
instability, had unlimited walking ability with the support of a cane, normal ability to go
up/down stairs, could stand up from a chair without using his hands, and experienced no
anterior knee pain or painful crepitus. (Id.). Dr. Zelicof asked Plaintiff to return for a follow-up
in one year. (Tr. 318.)
On June 11, 2013, during a visit with Dr. Zelicof, Plaintiff reported that he was feeling
“40%” better on a scale of 0-100%, but he also noted feeling the same since his last visit and
rated the severity of his pain as “8” on a scale of 0-10. (Tr. 323.) Plaintiff described his pain as
aching, constant, and disruptive of his sleep, and also reported numbness, weakness, feelings
of the joint giving way, poor balance, locking/catching, and tingling. (Id.)

10

On July 22, 2013, during a visit with Dr. Zelicof, Plaintiff reported that he was feeling
“50%” better on a scale of 0-100%, noted that he was feeling “better” since his last visit, and
rated the severity of his pain as “7” on a scale of 0-10. (Tr. 331.) Plaintiff described his pain as
sharp, aching, constant, and “comes and goes,” and also reported numbness, weakness,
feelings of the joint giving way, poor balance, locking/catching, and tingling. (Id.)
On a prescription note dated November 6, 2013, Dr. Zelicof opined that Plaintiff was
100% disabled. (Tr. 249.) In a physical therapy referral on the same date, Dr. Zelicof diagnosed
residual weakness resulting from the right knee replacement. (Tr. 247.) In a “To Whom It May
Concern” letter dated November 21, 2013, Dr. Zelicof opined that Plaintiff continued to have
right knee instability despite the right knee replacement, and that he also had symptoms in
his right foot and left knee due to his right knee injury. (Tr. 250.)
On March 6, 2014, Dr. Zelicof saw Plaintiff for continued right leg weakness status post
total knee replacement. (Tr. 266-67.) Plaintiff used a cane and reported difficulty with
prolonged walking and standing, an inability “to lift or carry heavy weight,” and that he was
taking Percocet. (Tr. 266.) On examination of the right knee, Plaintiff had moderate effusion,
normal alignment, medial and lateral joint line tenderness, painful flexion from 0-120
degrees, and some lateral ligamentous laxity. (Id.) Dr. Zelicof opined that Plaintiff had a
permanent partial disability due to a 70% loss of use of his right leg. (Id.) Dr. Zelicof also
reported that Plaintiff was a candidate for the “ticket to work” program or a similar job
retraining program so long as he could use his cane and pain medication as directed, and
could avoid prolonged walking/standing or lifting more than 20 pounds. (Id.).

11

On February 11, 2015, Dr. Zelicof saw Plaintiff for a follow-up appointment, during
which Plaintiff reported occasional episodes of instability in his right knee but that he felt
somewhat better overall. (Tr. 304.) Plaintiff also reported using Percocet on a fairly regular
basis without any side effects. (Id.) On examination of the right knee, Plaintiff had moderate
effusion, normal alignment, medial and lateral joint line tenderness, flexion to 110 degrees
that was minimally painful, and some ligamentous laxity in extension and mid flexion. (Id.)
The left knee had moderate varus deformity that was correctable, medial joint line
tenderness, and painful range of motion from 5 to 115 degrees with crepitus through arc of
motion, but no effusion, no ligamentous laxity, and negative Lachman, anterior drawer,
posterior drawer, pivot shift, McMurray, and bounce tests. (Id.) Dr. Zelicof diagnosed status
post total knee replacement of the right knee and osteoarthritis of the left knee. (Tr. 305).
On March 25 and May 28, 2015, Plaintiff saw Dr. Zelicof for a bilateral knee follow-up
appointment. (Tr. 313-14, 351-52.) Plaintiff reported no significant improvement, wore a
brace over both knees, walked with a cane for support, and took Percocet and Oxycodone,
which relieved his symptoms. (Tr. 313, 351.) On examination of the right knee, Plaintiff had
moderate effusion, normal alignment, medial and lateral joint line tenderness, flexion to 110
degrees that was minimally painful, and some ligamentous laxity in extension and mid flexion.
(Id.) The left knee had moderate varus deformity that was correctable, medial joint line
tenderness, and painful range of motion from 5 to 115 degrees with crepitus through arc of
motion, but no effusion, no ligamentous laxity, and negative Lachman, anterior drawer,
posterior drawer, pivot shift, McMurray, and bounce tests. (Id.) Dr. Zelicof diagnosed total

12

knee replacement of the right knee and osteoarthritis of the left knee and asked Plaintiff to
return in three months. (Tr. 314, 352.)
In a “To Whom It May Concern” letter dated May 28, 2015, Dr. Zelicof opined that
Plaintiff “remains unable to work due to his knee pain and symptoms” and “remains 100%
disabled.” (Tr. 301.) In a medical source statement also dated May 28, 2015, Dr. Zelicof noted
that Plaintiff had a painful total knee replacement with installation that required revision. (Tr.
309.) Dr. Zelicof opined that Plaintiff could occasionally lift/carry less than ten pounds;
push/pull a maximum of five pounds with the upper and lower extremities; could not stand or
walk for more than five minutes at a time or two hours total in an eight-hour workday; could
sit less than six hours in an eight-hour workday; needed to periodically alternate sitting and
standing to relieve pain; could not perform postural activities due to his knee; had limited
ability to reach in all directions and could reach only occasionally; and had limited tolerance
for temperature extremes, noise, dust, vibration, humidity/wetness, hazards, and respiratory
irritants. (Tr. 308-11.)
On June 10, 2015, Plaintiff returned to Dr. Zelicof for a bilateral knee follow-up. (Tr.
353-54.) Dr. Zelicof noted that Plaintiff was still waiting for Worker’s Compensation to
authorize revision surgery of his right total knee replacement, the hardware for which had
become loose in the knee. (Tr. 353.) Plaintiff reported continued pain in both knees. (Id.) On
examination, the right knee had moderate effusion, normal alignment, medial and lateral
joint line tenderness, range of motion from 0 to 110 degrees that was minimally painful, and
evidence of ligamentous laxity in extension and mid-flexion. (Id.) The left knee had moderate
varus deformity that was correctable, medial joint line tenderness, and painful range of

13

motion from 5 to 115 degrees with crepitus through arc of motion, but no effusion, no
ligamentous laxity, and negative Lachman, anterior drawer, posterior drawer, pivot shift,
McMurray, and bounce tests. (Id.) Dr. Zelicof diagnosed status post right total knee
replacement and left knee osteoarthritis and asked Plaintiff to return in six weeks. (Tr. 35354.)
On February 10, 2016, Plaintiff returned to Dr. Zelicof for routine evaluation of both
knees.1 (Tr. 32-33.) Dr. Zelicof noted that Plaintiff was still waiting for Workers Compensation
to authorize revision surgery of his right total knee replacement. (Tr. 32.) Plaintiff denied any
change in his symptoms and continued to ambulate with a cane and take his pain medication
on an as-needed basis. (Id.) On examination, the right knee had moderate effusion, normal
alignment, medial and lateral joint line tenderness, range of motion from 0 to 110 degrees
that was minimally painful, and evidence of ligamentous laxity in extension and mid-flexion.
(Id.) The left knee had moderate varus deformity that was correctable, medial joint line
tenderness, and painful range of motion from 5 to 115 degrees with crepitus through arc of
motion, but no effusion, no ligamentous laxity, and negative Lachman, anterior drawer,
posterior drawer, pivot shift, McMurray, and bounce tests. (Id.) Dr. Zelicof diagnosed a
mechanical loosening of the internal right knee prosthetic joint and unilateral primary
osteoarthritis in the left knee and asked Plaintiff to return in six weeks. (Tr. 32-33.)

1

The Court notes that this portion of the medical evidence as well as Dr. Mann’s February 29, 2016 opinion postdate the ALJ’s decision. It is unclear whether the Appeals Council considered this later evidence when upholding
the ALJ’s decision. Nonetheless, this medical evidence does not alter the Court’s ruling because this evidence is not
materially different than the evidence already before the ALJ. See Suttles v. Colvin, 654 F. App’x 44, 47 (2d Cir.
2016).

14

ii. Dr. Marc Samolsky
In January through June 2013, Plaintiff received pain management from Dr. Marc
Samolsky. (Tr. 290-95.) Dr. Samolsky noted that Plaintiff tolerated Percocet without side
effects and that his pain ranged from a 2 to 8/10 in intensity. (Id.)
iii. Dr. A. Auerbach
Dr. A. Auerbach, a medical consultant for the SSA, completed a Physical Residual
Functional Capacity Assessment dated September 25, 2013, based on a review of Plaintiff’s
medical records. (Tr. 241-46.) In that assessment, Dr. Auerbach made specific reference to the
CDIU Report, noting that from October 2012 through July 2013, Plaintiff had been observed
able to get into and out of a vehicle without any obvious difficulties and to have a normal gait
pattern without needing to use a cane. (Tr. 242.) Dr. Auerbach opined that Plaintiff could
perform light work. (Id.) Dr. Auerbach also specifically assessed that Plaintiff could
occasionally lift and/or carry up to twenty pounds, frequently lift/carry up to ten pounds,
stand and/or walk for a total of six hours, sit for a total of six hours in an eight-hour workday,
and push/pull without limitation. (Id.) Dr. Auerbach further assessed that Plaintiff could
occasionally climb ramps, stairs, ladders, ropes or scaffolds, and occasionally balance, stoop,
kneel, crouch or crawl. (Tr. 242-43.)
iv. Dr. Ronald Mann
On May 22, 2013, Plaintiff underwent an independent medical examination with
orthopedic surgeon Dr. Ronald Mann for Worker’s Compensation purposes at the request
of Plaintiff’s insurer. (Tr. 261-64.) Plaintiff reported right knee stiffness with decreased
motion and clicking. (Tr. 261.) On examination of the right knee, Dr. Mann noted that

15

Plaintiff walked with a cane and had a limping gait. (Tr. 262.) He also had mild quadriceps
atrophy, mild positive clicking consistent with total knee replacement, minimal swelling,
mild tenderness, no effusion, no instability, and range of motion from 0-95 degrees. (Id.)
Plaintiff’s left knee had normal range of motion. (Id.) Dr. Mann opined that Plaintiff had a
moderate degree of disability related to his right knee. (Tr. 263.)
On November 25, 2013, Plaintiff returned to Dr. Mann for Worker’s Compensation
purposes at the request of the insurer. (Tr. 257-60.) Plaintiff reported that his right knee had
not been doing well and was stiff, had reduced range of motion, made clicking sounds, and
was swollen. (Tr. 257.) On examination, Dr. Mann noted that Plaintiff walked with a cane
and had a limping gait. (Tr. 258.) He also had mild quadriceps atrophy, clicking and crepitus
around the right knee, minimal swelling, no instability, and range of motion from 0-95
degrees. (Id.) Dr. Mann opined that Plaintiff had a moderate, partial degree of disability
related to his right knee. (Tr. 259.) Dr. Mann further assessed that Plaintiff could do “lightduty work avoiding walking, kneeling or bending on his affected right knee,” should avoid
lifting more than twenty pounds due to right knee weakness, and needed to use a cane. (Tr.
259.)
On March 6, 2015, Plaintiff returned to Dr. Mann for Worker’s Compensation
purposes. (Tr. 343-48.) Plaintiff complained of pain and stiffness in his right knee, which also
gave way, pain in his left knee and right foot, limping, and difficulty with stairs. (Tr. 344.) Dr.
Mann noted that Plaintiff was obese, walked with a cane, and had a limping gait pattern.
(Id.) On examination of the right knee, Dr. Mann found mild quadriceps atrophy, clicking, no
effusion or swelling, no gross instability, some tenderness on manipulation, and range of

16

motion of 0 to 110 degrees (out of 130). (Id.) The left knee had normal range of motion, mild
tenderness on the anterior portion, mild crepitus, negative Apley’s and McMurray tests, and
no swelling or effusion. (Id.) His right foot had mild tenderness diffusely and flat footedness,
but no swelling and normal range of motion. (Id.) Dr. Mann assessed a marked partial
degree of disability for Worker’s Compensation purposes and opined that Plaintiff could
return to work in a sedentary capacity, but should avoid prolonged walking, standing, or
lifting more than fifteen pounds, and be allowed to sit, stand, and walk as necessary for
relief of his knee pain. (Tr. 345)
Plaintiff again returned to Dr. Mann on February 29, 2016, for Worker’s
Compensation purposes. (Tr. 35-39.) Plaintiff complained of pain and stiffness in his right
knee, which also gave way, and pain in his left knee and both feet. (Tr. 36.) Dr. Mann noted
that Plaintiff was obese, walked with a cane, and had a limping gait pattern. (Id.) On
examination of the right knee, Dr. Mann found mild quadricep atrophy, tenderness and
instability with manipulation, some laxity to varus and valgus stress, mild anterior drawer
sign, no swelling, and range of motion of 0 to 110 degrees (out of 130). (Id.) The left knee had
normal range of motion, mild tenderness on the anterior portion, mild crepitus, and no
swelling, effusion, or instability. (Id.) Both feet had mild tenderness diffusely and flat
footedness, but no swelling and normal range of motion. (Id.) Dr. Mann opined that Plaintiff
could return to work in a sedentary capacity, but should avoid prolonged walking or standing,
and be allowed to sit, stand, and walk as necessary for relief of his knee pain. (Tr. 37.)

17

v. Dr. David T. Yung
In a “To Whom It May Concern” letter dated March 6, 2014, Dr. David T. Yung, an
internist, noted that Plaintiff had been seen on February 27, 2014 for complaints of pain,
weakness, and “disability in his right leg.” (Tr. 256.) Dr. Yung estimated a “70% loss of use of
right leg” and opined that Plaintiff needed to use a cane and pain medication. (Id.) He also
opined that Plaintiff should avoid prolonged walking, knee bending or standing, and could
not lift more than twenty pounds. (Id.)
vi. Dr. Richard Weinstein
On March 3, 2014, Dr. Richard N. Weinstein, an orthopedics doctor, examined Plaintiff
and found that his right knee had some effusion and tenderness in the medial and lateral
joint lines and clicking anteriorly, but that he had negative Lachman and posterior drawer
tests, and no varus/valgus instability. (Id.) The left knee had 120 degrees of flexion (out of
135), marked tenderness in the medial joint line and slight tenderness in the lateral joint line,
some effusion, positive McMurray, and position flexion pinch, but no instability with negative
Lachman’s and posterior drawer tests, negative varus and valgus instability, and good motor
strength without atrophy. (Id.)
vii. Dr. James R. McWilliam
On July 9, 2014, Plaintiff was seen by Dr. James R. McWilliam for bilateral foot pain.
(Tr. 297-99.) On examination, Plaintiff had mild swelling and tenderness in the posterior
tibial tendon, and give way weakness in the tibialis posterior, but full range of motion in the
ankle and hind foot. (Tr. 298.) An x-ray revealed pes planus with collapse at the navicular
cuneiform joint and mild forefoot abduction. (Id.) Dr. McWilliam assessed tibialis tendonitis,

18

late effect of tendon injury, and bilateral posterior tibial tendon insufficiency that was likely
the result of long-standing gait disturbance. (Tr. 299.) Dr. McWilliam recommended an airlift
brace and weight-bearing as tolerated. (Id.)
viii. Physician Assistant Courtney Leonard Kahn
On a prescription note dated September 4, 2014, Physician Assistant Courtney
Leonard Kahn remarked that Plaintiff “qualifies for SS disability due to injury.” (Tr. 279.)
c. The ALJ’s Decision
In an August 27, 2015 decision, the ALJ found that though Plaintiff was disabled
through July 26, 2013 due to his bilateral knee impairments that met Listing 1.03
(reconstructive surgery or surgical arthrodesis of a joint(s) (due to any cause)), Plaintiff
experienced medical improvement and his disability ended as of September 27, 2013. (Tr. 1128.)
Applying the eight-step framework for adjudicating Social Security disability claims
involving medical improvements, the ALJ found that, since September 27, 2013, Plaintiff did
not have an impairment or combination of impairments that met or medially equaled the
severity of a listed impairment, including Listing 1.02 (major dysfunction of a joint(s) (due to
any cause)), 1.03, or 1.06 (fracture of the femur, tibia, pelvis or one or more of the tarsal
bones). (Tr. 13-14.) The ALJ found that the medical improvement related to Plaintiff’s ability
to work because, as of September 27, 2013, Plaintiff’s impairments no longer met or
medically equaled Listing 1.03. (Tr. 14.) However, the ALJ found that as of September 27,
2013, Plaintiff’s medically-determined impairments were severe and thus required an
assessment of Plaintiff’s RFC. (Tr. 15.)

19

The ALJ found that, as of September 27, 2013, Plaintiff had the RFC to perform
sedentary work but with the following limitations: he could occasionally climb ramps and
stairs; could never climb ropes, ladders, or scaffolds; could occasionally balance, stoop,
crouch, kneel, or crawl; could not be exposed to unprotected heights or hazardous
machinery; needed to be able to alternate between sitting and standing at will so long as he
was not off-task for more than five percent of the workday; and was limited to jobs that
could be performed while using a handheld device. (Tr. 15.)
The ALJ further found that, as of September 27, 2013, Plaintiff was unable to perform
his past relevant work as a carpenter/window technician or machine cleaner. (Tr. 21.)
However, the ALJ found that there was a significant number of jobs in the national economy
that Plaintiff remained able to perform, and, consequently, Plaintiff’s disability ended as of
September 27, 2013. (Tr. 21-23.)
DISCUSSION
I.

The Applicable Law
a. Judicial Standard Of Review Of Commissioner’s Determination
The court’s review of an appeal of a denial of disability benefits is limited to two

inquiries. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). First, the court must determine
whether the Commissioner applied the correct legal principles in reaching a decision. 42 U.S.C.
§ 405(g); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). Second, the court must decide
whether the Commissioner’s decision is supported by substantial evidence in the record. Id. So
long as they are supported by substantial evidence in the Administrative Record, the findings of
the ALJ after a hearing as to any facts are conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3).

20

An ALJ’s failure to apply the correct legal standard constitutes reversible error if that
failure might have affected the disposition of the case. Kohler v. Astrue, 546 F.3d 260, 265 (2d
Cir. 2008). This applies to an ALJ’s failure to follow an applicable statutory provision, regulation,
or Social Security Ruling (“SSR”). See, e.g., Kohler, 546 F.3d at 265 (regulation); Schaal v.
Callahan, 993 F. Supp. 85, 93 (D. Conn. 1997) (SSR). In such a case, the court may remand the
matter to the Commissioner under sentence four of 42 U.S.C. § 405(g), especially if deemed
necessary to allow the ALJ to develop a full and fair record to explain his or her reasoning.
Crysler v. Astrue, 563 F. Supp. 2d 418, 429 (N.D.N.Y 2008).
If the reviewing court is satisfied that the ALJ applied correct legal standards, then the
court must “conduct a plenary review of the administrative record to determine if there is
substantial evidence, considering the record as a whole, to support the Commissioner’s
decision.” Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam)
(quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). Thus, the court does not determine
de novo whether a claimant is disabled. Id. (citing Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)).
The Supreme Court has defined substantial evidence as requiring “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). The substantial evidence standard means once an ALJ finds
facts, a reviewing court may reject those facts “only if a reasonable factfinder would have to
conclude otherwise.” Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290
(8th Cir. 1994)) (emphasis omitted).

21

To be supported by substantial evidence, the ALJ’s decision must be based on
consideration of “all evidence available in [the claimant]’s case record.” 42 U.S.C. §§
423(d)(5)(B), 1382(a)(3)(H)(i). The Act requires the ALJ to set forth “a discussion of the
evidence” and the “reasons upon which [the decision] is based.” 42 U.S.C. § 405(b)(1). While
the ALJ’s decision need not “mention[] every item of testimony presented,” Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam), or “reconcile explicitly every
conflicting shred of medical testimony,” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010)
(internal quotation marks omitted), the ALJ may not ignore or mischaracterize evidence of a
person’s alleged disability. See Ericksson v. Comm’r of Soc. Sec., 557 F.3d 79, 82-84 (2d Cir.
2009) (mischaracterizing evidence); Kohler, 546 F.3d 260, 268-69 (2d Cir. 2008) (overlooking
and mischaracterizing evidence); Ruiz v. Barnhart, No. 01-cv-1120 (DC), 2002 WL 826812, at *6
(S.D.N.Y. May 1, 2002) (ignoring evidence); see also Zabala, 595 F.3d at 409 (reconsideration of
improperly excluded treating physician evidence typically requires remand). Eschewing rote
analysis and conclusory explanations, the ALJ must discuss the “the crucial factors in any
determination . . . with sufficient specificity to enable the reviewing court to decide whether
the determination is supported by substantial evidence.” Calzada v. Astrue, 753 F. Supp. 2d
250, 269 (S.D.N.Y. 2010) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). If the
decision denying benefits applied the correct legal standards and is based on substantial
evidence, the reviewing court must affirm; if not, the court may modify or reverse the decision,
with or without remand. 42 U.S.C. § 405(g).

22

b. Legal Principles Applicable To The Commissioner’s Disability And Medical
Improvement Determinations
Under the Social Security Act, every individual considered to have a “disability” is entitled
to disability insurance benefits. 42 U.S.C. § 423(a)(1). The Act defines “disability” as an “inability
to engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). A claimant’s 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.” 42 U.S.C. §§
423(d)(2)(A), 1382c(a)(3)(B).
After an individual has been found to be entitled to social security benefits, his or her
benefits may be terminated if there is substantial evidence that a medical improvement has
restored his or her ability to work. De Leon v. Sec’y of Health & Human Servs., 734 F.2d 930,
936 (2d Cir. 1984). Such a finding must be supported by substantial evidence demonstrating
that “there has been [a] medical improvement in the individual’s impairment or combination
of impairments . . . , and [that] the individual is now able to engage in substantial gainful
activity.” 42 U.S.C. § 423(f). A “medical improvement” means any decrease in the medical
severity of the claimant’s impairment(s) which was present at the time of the most recent
favorable medical decision that the claimant was disabled or continued to be disabled. 20
C.F.R. § 404.1594(b)(1). The medical improvement must be demonstrated by changes or
improvements in “the symptoms, signs, or laboratory findings associated with [a claimant’s]
impairment(s).” Id. Thus, “[i]n order to determine whether medical improvement has
23

occurred, [the ALJ] must compare the current medical severity of the impairment to the
medical severity of that impairment at the time of the most recent favorable medical
decision.” Veino v. Barnhart, 312 F.3d 578, 586-87 (2d Cir. 2002).
To determine whether or when a claimant has medically improved and is no longer
entitled to benefits, the SSA regulations outline an eight-step evaluation process.
The eight steps are:
(1) whether the claimant is engaged in substantial gainful activity;
(2) if not, whether any of the claimant’s impairments meets or equals the severity of the
impairments listed in Appendix 1 of Subpart P of Part 404 of the relevant regulations
(“Listing”);
(3) if not, whether there has been a “medical improvement” demonstrated by a
decrease in medical severity;
(4) if so, whether the medical improvement was related to the claimant’s ability to do
work (i.e., whether there has been an increase in the residual functional capacity based
on the impairment(s) that was present at the time of the most recent favorable medical
determination);
(5) if there has been no finding of medical improvement at step three, or if any medical
improvement was found not to relate to an ability to work at step four, whether the
exceptions listed in paragraphs (d) and (e) of the relevant section apply;
(6) if medical improvement is shown to be related to ability to do work, or if one of the
relevant exceptions apply, whether all of the claimant’s current impairments in
combination are severe;

24

(7) if so, whether claimant can perform previous work based upon an assessment of the
claimant’s residual functional capacity considering all of the claimant’s current
impairments; and
(8) if claimant is unable to perform past work, whether, given claimant’s residual
functional capacity and considering the claimant’s age, education, and past work
experience, other work exists in the national economy that the claimant can perform.
20 C.F.R. § 404.1594(f)(1)-(8). The burden rests with the Commissioner at every step to show,
by substantial evidence, that a medical improvement has occurred. Baker v. Comm’r of Soc.
Sec., No. 3:12-cv-1715 (TJM), 2014 WL 1280306, at *5 (N.D.N.Y. Mar. 27, 2014).
c. Duty To Develop The Record
In Social Security proceedings, the ALJ must affirmatively develop the record on behalf
of all claimants. See Moran, 569 F.3d at 108, 112. As part of this duty, the ALJ must investigate
the facts and develop the arguments both for and against granting benefits. Id. Specifically,
under the applicable regulations, the ALJ is required to develop a claimant’s complete medical
history. Pratts, 94 F.3d at 34, 37 (citing 20 C.F.R. §§ 404.1512(d)-(f)). This responsibility
“encompasses not only the duty to obtain a claimant’s medical records and reports, but also
the duty to question the claimant adequately about any subjective complaints and the impact
of the claimant’s impairments on the claimant’s functional capacity.” Pena v. Astrue, No. 07-cv11099 (GWG), 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008) (internal citations omitted).
Whether the ALJ has met his/her duty to develop the record is a threshold question.
Before reviewing whether the Commissioner’s final decision is supported by substantial
evidence under 42 U.S.C. § 405(g), “the court must first be satisfied that the ALJ provided

25

plaintiff with a full hearing under the Secretary’s regulations and also fully and completely
developed the administrative record.” Scott v. Astrue, No. 09-cv-3999 (KAM), 2010 WL
2736879, at *12 (E.D.N.Y. July 9, 2010) (internal quotations and citations omitted). The ALJ
must develop the record even where the claimant has legal counsel. Perez, 77 F.3d at 47.
Remand is appropriate where this duty is not discharged. See, e.g., Moran, 569 F.3d at 114-15
(“We vacate not because the ALJ’s decision was not supported by substantial evidence but
because the ALJ should have developed a more comprehensive record before making his
decision.”).
d. 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 and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in . . . [the] record.” 20 C.F.R. §
404.1527(c)(2); see also Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). “The opinions of
examining physicians are not controlling if they are contradicted by substantial evidence, be
that conflicting medical evidence or other evidence in the record.” Krull v. Colvin, 669 F. App'x
31, 32 (2d Cir. 2016).
The ALJ must give “good reasons” for declining to afford a treating physician’s opinion
controlling weight. 20 C.F.R. § 404.1527(c)(2); Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).
Before an ALJ can give a treating physician’s opinion less than controlling weight, the ALJ must
consider various factors to determine the amount of weight the opinion should be given,
including: (1) the length of the treatment relationship and the frequency of examination, (2) the

26

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); Schisler, 3 F.3d at 567. The Second Circuit has
made clear that the ALJ need not “slavish[ly] recit[e] . . . each and every factor where the ALJ’s
reasoning and adherence to the regulation are clear.” Atwater v. Astrue, 512 F. App’x 67, 70 (2d
Cir. 2013). 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, 362 F.3d 28, 32-33 (2d Cir. 2004).
e. Credibility
It is within the ALJ’s “discretion to evaluate the credibility of a claimant and to arrive at
an independent judgment, in light of medical findings and other evidence,” regarding the true
extent of a claimant’s alleged symptoms. Marcus, 615 F.2d at 27. When the ALJ rejects a
plaintiff’s testimony in light of objective medical evidence and other factors he deems relevant,
he must explain that decision “with sufficient specificity to enable the [reviewing] Court to
decide whether there are legitimate reasons for the ALJ’s disbelief and whether his decision is
supported by substantial evidence.” Calzada, 753 F. Supp. 2d at 280 (quoting Fox v. Astrue, No.
05-cv-1599 (NAM), 2008 WL 828078, at *12 (N.D.N.Y. Mar. 26, 2008)). “It is the function of the
[Commissioner], not [the reviewing courts], to resolve evidentiary conflicts and to appraise the
credibility of the witnesses, including the claimant.” Aponte v. Sec’y, Dep’t Health and Human
Servs., 728 F. 2d 588, 591 (2d Cir. 1984) (internal citation omitted). A court must defer to an

27

ALJ’s finding and uphold the ALJ’s decision to discount a claimant’s subjective complaints if the
finding is supported by substantial evidence. Id. (internal citations omitted).
II.

Application Of The Legal Standards To Plaintiff’s Claim
a. Development Of The Record
Before turning to the issue of whether the Commissioner’s final decision is supported

by substantial evidence under 42 U.S.C. § 405(g), the Court first notes that it is satisfied that
the ALJ provided Plaintiff with a full hearing and also fully and completely developed the
administrative record as required by 20 C.F.R. § 404.1512(d).
b. Analysis Of The ALJ’s Decision
The Court finds that the ALJ committed no legal error and that substantial evidence
supports the ALJ’s decision at each step of the eight-step medical improvement analysis. The
Court addresses below only disputed issues raised by the Parties in the Joint Stipulation.
i. Step Two Of The Medical Improvement Analysis
Plaintiff first argues that the ALJ erred at the second step of the medical improvement
analysis when he found that Plaintiff did not meet or equal the severity of an impairment in
20 C.F.R. Part 404, Subpart P, Appendix 1. In so finding, the ALJ properly considered Listings
1.02, 1.03, and 1.06.
Listing 1.02 lists major dysfunctions of a joint due to any cause, characterized by gross
anatomical deformity and chronic joint pain and stiffness with signs of limitation of motion
or other abnormal motion of the affected joint(s), and findings on appropriate medically
acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected
joint(s), with either (A) an inability to ambulate effectively or (B) involvement of one major

28

peripheral joint in each upper extremity resulting in inability to perform fine and gross
movements effectively. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.02.
Listing 1.03 requires reconstructive surgery or surgical arthrodesis of a major weightbearing joint, with inability to ambulate effectively, and return to effective ambulation did
not occur, or is not expected to occur, within 12 months of onset. Id. § 1.03. Listing 1.06
requires fracture of the femur, tibia, pelvis, or one or more of the tarsal bones with “(A) Solid
union not evident on appropriate medically acceptable imaging and not clinically solid;” and
“(B) [i]nability to ambulate effectively . . . and return to effective ambulation did not occur or
is not expected to occur within 12 months of onset.” Id. § 1.06.
Thus, Listings 1.02, 1.03, and 1.06 all require Plaintiff to demonstrate an inability to
ambulate effectively. An inability to ambulate effectively means “an extreme limitation of the
ability to walk; i.e., an impairment(s) that interferes very seriously with the individual’s ability
to independently initiate, sustain, or complete activities. Ineffective ambulation is defined
generally as having insufficient lower extremity functioning . . . to permit independent
ambulation without the use of a hand-held assistive device(s) that limits the functioning of
both upper extremities.” Id. §1.00(B)(2)(b). To ambulate effectively means that
individuals must be capable of sustaining a reasonable walking pace over a
sufficient distance to be able to carry out activities of daily living. They must have
the ability to travel without companion assistance to and from a place of
employment or school. Therefore, examples of ineffective ambulation include, but
are not limited to, the inability to walk without the use of a walker, two crutches
or two canes, the inability to walk a block at a reasonable pace on rough or uneven
surfaces, the inability to use standard public transportation, the inability to carry
out routine ambulatory activities, such as shopping and banking, and the inability
to climb a few steps at a reasonable pace with the use of a single hand rail. The
ability to walk independently about one’s home without the use of assistive
devices does not, in and of itself, constitute effective ambulation.

29

Id. § 1.00(B)(2)(b)(2).
Here, Plaintiff argues that he meets the listings in 20 C.F.R. Part 404, Subpart P,
Appendix 1 because he required use of a cane to ambulate effectively, was regularly taking
Percocet or Oxycodone to relieve his pain, and because Dr. Zelicof noted that Plaintiff was
unable to stand or walk for longer than five minutes. However, as the Commissioner points
out, ambulation with a single cane is not enough to demonstrate ineffective ambulation for
the purpose of these Listings. See Hilliard v. Colvin, 13-cv-1942 (AJP), 2013 WL 5863546, at
*13 (S.D.N.Y. Oct. 31, 2013) (“evidence clearly showed that [claimant] could ambulate
effectively” where “she used only one cane (not two)”). Further, in November 2012 and May
2013, Dr. Zelicof assessed that, despite some instability, Plaintiff’s walking ability was
unlimited with the support of a cane and that he had ability to go up/down stairs. (Tr. 320,
317). Additionally, the CDIU Report evidenced that on several instances in 2012 and 2013,
Plaintiff was observed ambulating effectively without use of a cane. (Tr. 285-88.) Finally,
Plaintiff himself testified that he could walk “500 to a thousand feet with no problem
probably.” (Tr. 71). Thus, substantial evidence supports the ALJ’s conclusion that Plaintiff’s
impairments did not meet or equal the severity of the impairments in Listings 1.02, 1.03, and
1.06.
ii. Plaintiff’s Medical Improvement And Residual Functional Capacity
Next, Plaintiff contends that the ALJ erred in making his RFC determination. In
response, the Commissioner argues that Plaintiff experienced medical improvement related
to his ability to work and that the ALJ’s RFC determination is supported by substantial
evidence.

30

In March of 2012, Plaintiff underwent total right knee replacement surgery and was
found disabled under Listing 1.03 due to severe bilateral knee impairments. (Tr. 13.)
Thereafter, Plaintiff experienced pain on a scale of 8/10, occasional stiffness, walked with a
cane, and had a limping gait. (Tr. 322, 323, 261, 292, 293, 317.) However, the ALJ correctly
found that Plaintiff experienced a decrease in medical severity by at least September 27,
2013. (Tr. 13.) In May 2013, Dr. Zelicof reported that Plaintiff was “overall doing better” and
that Plaintiff had no limitations in his ability to walk with the use of a cane. (Tr. 317.) In postsurgery follow-up reports in June and July 2013, Plaintiff reported that he was doing 40 and
50 percent better, respectively. (Tr. 323, 331.) Further, the CDIU reports investigating Plaintiff
from October 2012 to July 2013 demonstrate that Plaintiff was observed sitting for longer
than 30 minutes while driving and was able to ambulate effectively with a normal gait
pattern without the use of a cane. (Tr. 285-88.) Thus, substantial evidence supports the ALJ’s
finding that Plaintiff experienced medical improvement.
Substantial evidence also supports the ALJ’s finding that Plaintiff’s medical
improvement related to his ability to work. Specifically, on May 22, 2013, Dr. Mann
conducted an independent orthopedic evaluation of Plaintiff and opined that Plaintiff could
return to work in a light-duty capacity. (Tr. 261-63.) Further, Dr. Auerbach completed a
Physical RFC Assessment on September 25, 2013 based on a review of Plaintiff’s medical
records and found that Plaintiff was likely “capable of sustaining work commensurate with a
light exertional level.” (Tr. 242.)
Finally, the ALJ’s finding that Plaintiff had the RFC to perform sedentary work except
that he could occasionally climb ramps and stairs; could never climb ropes, ladders, or

31

scaffolds; could occasionally balance, stoop, crouch, kneel, or crawl; could not be exposed to
unprotected heights or hazardous machinery; needed to be able to alternate between sitting
and standing at will so long as he was not off-task for more than five percent of the workday;
and was limited to jobs that could be performed while using a handheld device is also
supported by substantial evidence. (Tr. 15). As stated above, in May 2013, Dr. Mann
examined Plaintiff and observed that although Plaintiff experienced minimal swelling, mild
tenderness, and a limited range of motion in the right knee, Plaintiff could return to work in a
light-duty capacity. (Tr. 263.) Dr. Mann opined that Plaintiff should avoid prolonged walking,
kneeling, or bending on the right knee. (Id.) Dr. Mann examined Plaintiff on two more
occasions in March 2015 and February 2016, again opining that Plaintiff was capable of
sedentary capacity work so long as Plaintiff avoided prolonged standing or walking and was
allowed to sit and stand as necessary for pain relief. (Tr. 37, 345.)
Similarly, in September 2013, Dr. Auerbach opined that Plaintiff was capable of lightexertional level work. (Tr. 242.) In support of his opinion, Dr. Auerbach noted that despite
Plaintiff’s “wobbly gate,” the CDIU observed Plaintiff from October 2012 to July 2013 walking
with a normal gait pattern without use of a cane and getting into and out of vehicles without
any obvious difficulties. (Id.) Dr. Auerbach also opined that Plaintiff was capable of
occasionally lifting twenty pounds, frequently lifting ten pounds, and was capable of standing
and/or walking and sitting about six hours in an eight-hour day with an unlimited ability to
push and pull. (Id.) Finally, Dr. Auerbach indicated that Plaintiff could occasionally climb,
balance, stoop, kneel, crouch, and crawl. (Tr. 243.)

32

Further, Plaintiff’s own treating physician, Dr. Zelicof, opined in March 2014 that
although Plaintiff had a “permanent partial disability” and 70% loss of use of the right leg,
Plaintiff “is a candidate for ticket to work program or similar job retraining program” so long
as Plaintiff had the ability to use his cane and pain medication, avoid prolonged walking or
standing, and lift/carry less than twenty pounds. (Tr. 266.) The ALJ’s decision is also
consistent with Dr. Yung’s opinion that Plaintiff needed to use a cane and pain medication,
should avoid prolonged walking, knee bending or standing, and could not lift more than
twenty pounds. (Tr. 268)
Finally, Plaintiff himself testified that he was capable of walking 500 to 1000 feet and
could sit ten minutes before changing positions, and could stand for five minutes without
changing positions, which is consistent with the ALJ’s residual functional capacity finding that
Plaintiff could perform sedentary work and must be permitted to alternate sitting and
standing positions at will. (Tr. 15, 71-72.) Thus, substantial evidence supports the ALJ’s RFC
determination.
In light of Plaintiff’s RFC of sedentary work, the ALJ correctly found Plaintiff could not
perform his past relevant work as a construction worker. (Tr. at 21.) The ALJ also reasonably
determined that Plaintiff was able to perform other work in the national economy considering
his age and education. (Tr. 21-22.) The ALJ reasonably relied on a vocational expert, who
testified that an individual with Plaintiff’s RFC and vocational profile could perform the
unskilled, sedentary work of an order clerk (DOT No. 209.567-014), call-out operator (DOT No.
237.367-014), or a telephone quotation clerk (DOT No. 237.367-046). (Tr. 22.) Having carefully
considered the whole record and examined evidence from both sides, the Court finds the

33

ALJ’s conclusions that Plaintiff’s medical condition had improved and that his improvement
was work-related are supported by substantial evidence.
c. The Treating Physician Rule
Plaintiff next contends that the ALJ gave improper weight to Plaintiff’s treating
physician’s (Dr. Zelicof) November 2013 and May 2015 opinions and that the ALJ erred in failing
to explain his reasoning for giving Dr. Zelicof’s opinions little weight.
In a prescription note signed on November 6, 2013, Dr. Zelicof opined that Plaintiff was
100% disabled. (Tr. 249.) In a letter dated November 21, 2013, Dr. Zelicof reported that Plaintiff
continued to have instability affecting his ability to work and that Plaintiff was therefore unable
to return to work. (Tr. 273.) On May 28, 2015, Dr. Zelicof opined that Plaintiff continued to be
disabled. (Tr. 301.) Finally, in a medical source statement also dated May 28, 2015, Dr. Zelicof
opined that Plaintiff could occasionally lift/carry less than ten pounds; push/pull a maximum of
five pounds with the upper and lower extremities; could not stand or walk for more than five
minutes at a time or two hours total in an eight-hour workday; could sit less than six hours in an
eight-hour workday; needed to periodically alternate sitting and standing to relieve pain; could
not perform postural activities due to his knee; had limited ability to reach in all directions and
could reach only occasionally; and had limited tolerance for temperature extremes, noise, dust,
vibration, humidity/wetness, hazards, and respiratory irritants. (Tr. 308-11).
As an initial matter, it was not erroneous for the ALJ to give little weight to Dr. Zelicof’s
statements that Plaintiff is “disabled.” It is well established that a legal conclusion “that the
claimant is ‘disabled’ or ‘unable to work’ is not controlling” because such opinions are reserved
for the Commissioner. Guzman v. Astrue, No. 09-cv-3928 (PKC), 2011 WL 666194, at *10

34

(S.D.N.Y. Feb. 4, 2011) (citing 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1)); see also Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999) (“A treating physician’s statement that the claimant is disabled
cannot itself be determinative.”). Moreover, Dr. Zelicof’s statements about Plaintiff’s ability to
work and his functional limitations are not well-supported by Dr. Zelicof’s own treatment notes
or the rest of the medical evidence. For example, Dr. Zelicof’s November 2013 and May 2015
opinions conflict with his March 2014 opinion in which he found Plaintiff a candidate for a ticket
to work program so long as he could use his cane, pain medication, and could avoid prolonged
walking, standing, and carrying items more than twenty pounds. (Tr. 276-77.) His statements
also conflict with other medical evidence. For example, in November 2013, Dr. Mann examined
Plaintiff and assessed that, though Plaintiff’s right knee had a limited range of motion and
tenderness upon examination, Plaintiff was capable of doing light-duty work so long as he could
use a cane, lift no more than twenty pounds, and avoid walking, kneeling, or bending on his
right knee. (Tr. 259.) Similarly, in March 2015, Dr. Mann examined Plaintiff and found that
Plaintiff had a marked partial degree of disability for Worker’s Compensation purposes but
could nonetheless return to work in a sedentary capacity so long as he avoided prolonged
walking, standing, or lifting more than fifteen pounds, and as allowed to sit, stand, and walk as
necessary for relief of his knee pain. (Tr. 345.) Dr. Zelicof’s opinions regarding Plaintiff’s
limitations and ability to work also conflict with Dr. Auerbach’s assessment that Plaintiff was
capable of sustaining a light exertional level. (Tr. 242.)
Plaintiff further contends that the ALJ failed to explain why he assigned Dr. Zelicof’s
opinions only limited weight. Although the ALJ did not explicitly go through the six-step
framework in 20 CF.R. § 404.1527(c)(2) for evaluating a treating physician’s opinion, the ALJ did,

35

in fact, explain why he was not affording controlling weight to Dr. Zelicof’s November 2013 and
May 2015 opinions. Specifically, he stated that Dr. Zelicof’s opinions were inconsistent with his
own March 2014 opinion without an evidentiary basis for the variance and conflicted with
other medical evidence in the record. (R. at 16, 19.) After carefully considering the entire record
and the ALJ’s opinion, this Court concludes that the ALJ “applied the substance of the treating
physician rule” and provided good reasons for affording less weight to Dr. Zelicof’s opinion. See
Halloran, 362 F.3d at 31-32. The Court notes that the Parties do not dispute that the ALJ
properly applied the treating physician rule to Plaintiff’s other treating physicians.
d. Credibility Determination
Plaintiff argues that the ALJ erred in basing his credibility determination on the nature
of Plaintiff’s conservative medical treatment, Plaintiff’s sporadic employment history, and the
fact that Plaintiff did not display debilitating symptoms while testifying during the
administrative hearing. Although the ALJ did note these facts as part of his credibility
determination, the ALJ did not rely solely on these facts. The ALJ considered numerous other
factors, and substantial evidence supports the ALJ’s decision to discount Plaintiff’s subjective
complaints. Further, contrary to Plaintiff’s assertion, the ALJ was entitled to consider his
observation of Plaintiff’s demeanor during the hearing. See Morales v. Comm’r of Soc. Sec.,
No. 10-cv-8773 (BSJ) (KNF), 2012 WL 124554, at *19 (S.D.N.Y. Jan. 17, 2012). The conservative
nature of treatment is also a factor that the ALJ is permitted to consider as part of the broader
credibility analysis. See, e.g., Mechelson v. Colvin, 15-cv-0650 (JS), 2017 WL 4402455, at *12
(E.D.N.Y. Sept. 30, 2017) (“Additionally, the ALJ also appropriately noted the conservative
nature of Plaintiff's treatment” in evaluating plaintiff’s credibility). Further, the ALJ may

36

consider Plaintiff’s employment history, though the Second Circuit has cautioned that
consideration of a claimant’s work history must be undertaken with great care. Schaal v.
Apfel, 134 F.3d 496, 502 (2d Cir. 1998).
Even if the ALJ incorrectly found that Plaintiff’s medical treatment was conservative,
other relevant factors support his ultimate credibility determination. See Otanez v. Colvin, No.
14-cv-8184 (KPF), 2016 WL 128215, at *13 (S.D.N.Y. Jan. 12, 2016) (“Nevertheless, in light of
the ALJ’s explicit consideration of other relevant factors and the substantial evidence that
exists in support of his ultimate determination, his perhaps undue emphasis on the
conservative nature of Otanez’s treatment recommendations does not invalidate his
otherwise well-supported credibility determination.”). For example, the ALJ reasonably found
that Plaintiff’s allegations of a complete inability to work conflicted with other evidence. As
noted by the ALJ, in August 2015 Plaintiff’s testimony regarding his activities of daily living
including driving, going to the gym and working out on exercise mats, cooking or using the
microwave to prepare his own meals on a daily basis, doing his own laundry, shopping every
few days independently, cleaning his wooden floors with a Swiffer, and wiping the counters
down at his home was inconsistent with his claim of complete disability. (Tr. 70, 77-80.) The
ALJ also correctly observed that the weight of the medical opinion evidence, including Dr.
Zelicof’s opinion in March 2014 that Plaintiff was capable of sedentary work, belies Plaintiff’s
claim of complete disability. (Tr. 20.) Additionally, the ALJ properly noted the CDIU Report
concerning Plaintiff’s observed ability to stand and walk without using a cane, drive for
extended periods, and enter and exit a vehicle, all without any observable indicia of
discomfort. (Tr. 20.) Further, the Court notes that on Plaintiff’s October 2013 application for

37

a parking permit/license plate for persons with severe disability, Plaintiff indicated that he
was unable to walk 200 feet without stopping. (Tr. 248.) However, Plaintiff testified at the
administrative hearing that he was able to walk 500-1000 feet with no problem, (Tr. 71),
indicating Plaintiff’s potential willingness to exaggerate his incapacity when it suits him or,
alternatively, indicating that Plaintiff’s condition has admittedly improved.
Accordingly, the ALJ’s findings were sufficiently consistent with the evidence in the
record and the Court rejects Plaintiff’s contention that the ALJ failed to properly assess
Plaintiff’s credibility.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion is DENIED, and the Commissioner’s motion
is GRANTED. The Clerk of Court is respectfully directed to close this case.

Dated:

February 12, 2018
New York, New York
KATHARINE H. PARKER
United States Magistrate Judge

38

President
Carol A. Sigmond
President-Elect
Michael J. McNamara
Vice President
Stephen C. Lessard

September 15, 2016
Notice to all plaintiffs who have Social Security cases and SSI cases:

Secretary
Megan P. Davis
Treasurer
Vincent T. Chang
Immediate
Past President
Lewis F. Tesser

You have started a lawsuit in federal court against the Social
Security Administration. If you cannot afford a lawyer, you may qualify
for free legal representation.
The New York County Lawyers Association has provided free legal
assistance to thousands of people who cannot afford lawyers. We have a
program which provides lawyers in Social Security and SSI cases in federal
court.
The program is free. The lawyers in our program are well-trained
in Social Security law and have the resources that they need to represent
you capably and zealously.
If you would like to consult with one of our lawyers, please call
Carolyn A. Kubitschek, at 212-349-0900, or email Lois Davis,
[e-mail]. We cannot promise that everyone who calls will get a
lawyer, but we are committed to providing as many individuals as possible
with free legal representation.
Sincerely,

Carol A. Sigmond
President
New York County Lawyers Association

14 Vesey Street, New York, NY 10007 • Tel. [phone] • Fax: [phone] • www.nycla.org