Roche v. Berryhill

Filing 24

OPINION & ORDER: re: 21 MOTION for Judgment on the Pleadings, filed by Nancy A Berryhill. 17 MOTION for Judgment on the Pleadings, filed by Enid Roche. For the reasons set forth above, the Commissioner's determin ation that Roche was not disabled within the meaning of the Social Security Act during the period from October 28, 2013 through March 24, 2016 is supported by substantial evidence. Accordingly, the Commissioner's motion for judgment on the pleadings (Dkt. No. 21) is GRANTED and Roche's motion (Dkt. No. 17) is DENIED, and as further set forth in this order. (Signed by Magistrate Judge Andrew J. Peck on 1/25/2018) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ENID ROCHE,

:
Plaintiff,

:
:

-againstNANCY A. BERRYHILL,
Acting Commissioner of Social Security,

17 Civ. 4524 (AJP)
OPINION & ORDER

:
:

Defendant.
:
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ANDREW J. PECK, United States Magistrate Judge:
Plaintiff Enid Roche, represented by counsel, brings this action pursuant to § 205(g)
of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner
of Social Security denying her application for Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI"). (Dkt. No. 1: Compl.) Presently before the Court are the
parties' cross motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 17:
Roche Notice of Mot.; Dkt. No. 21: Comm'r Notice of Mot.) The parties have consented to decision
of the case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 15.)
For the reasons set forth below, the Commissioner's motion for judgment on the
pleadings (Dkt. No. 21) is GRANTED and Roche's motion (Dkt. No. 17) is DENIED.
FACTS
Procedural Background
Roche filed for DIB and SSI on December 23, 2013 and January 29, 2014,
respectively, alleging a disability onset date of October 28, 2013. (Dkt. No. 16: Administrative
Record ("R.") 213, 217.) Roche's benefits application was denied on March 19, 2014 (R. 105, 116),

2
and she requested a hearing before an Administrative Law Judge ("ALJ") on May 16, 2014 (R. 14345). On January 6, 2016, Roche, represented by counsel, had a hearing before ALJ Michael
Stacchini (R. 70-104), who denied Roche's benefits application in a written decision issued March
24, 2016 (R. 21-44). ALJ Stacchini's decision became the Commissioner's final decision when the
Appeals Council denied review on May 12, 2017. (R. 1-3.)
Non-Medical Evidence and Testimony1/
Born on July 3, 1967, Roche was 46 years old at the alleged October 28, 2013 onset
of her disability. (R. 213, 217.) Roche previously worked as a home health aide, security guard and
restaurant supervisor. (R. 272, 280.)
In a January 21, 2014 function report (R. 259-71), Roche stated: "All I do is stay in
bed and watch TV unless I have a doctor's appointment." (R. 260.) Roche stated that her
impairments prevented her from "work[ing], . . . walk[ing] for long periods of time or sit[ting], . .
. heavy lifting, stand[ing] up for too long, [and completing] house chores." (R. 260.) Roche stated
that she could not sleep at night unless she was "heavily medicated," and that her back pain impaired
her ability to dress, bathe, shave and use the bathroom. (R. 260-61.) Roche prepared her own meals
daily, including "rice, chicken, pasta, salads, [and] tacos," but did no household chores or shopping
as they caused "too much [back] pain to do alone." (R. 261-63.) Roche wrote that she went outside
once a week "only for appointments," and that her only hobby/interest was watching television "all
day." (R. 262-63.)
Roche stated that lifting, standing, walking, sitting, climbing stairs, kneeling,

1/

As Roche only challenges ALJ Stacchini's analysis regarding her physical impairments (see
generally Dkt. No. 18: Roche Br.), the Court does not discuss the records or testimony
relating to Roche's mental impairments.

3
squatting, reaching and using her hands caused her pain (R. 264-65), and that she used a back
brace/splint when walking (R. 265-66). Roche stated that she suffered from lower back pain that
radiated to her legs and upper back. (R. 267-68.) Roche could walk for 20 minutes before needing
to stop and rest for five to ten minutes, and could not finish what she started because she needed "to
stop and rest or leave it for [the] next day." (R. 266.) Roche stated that her "pain ha[d] gotten more
severe over time," she experienced pain "all day" "every day," and it was exacerbated by
"everything," including "walking, chores, bending, [and] lifting." (R. 268.)
In a February 4, 2014 function report (R. 288-300), Roche stated that her daily
activities included watching television, laying in bed and relaxing (R. 289). Roche stated that her
impairments prevented her from "work[ing], stand[ing], bend[ing], lift[ing], . . . clean[ing]" and
sleeping through the night. (R. 289.) However, in contrast to her January 21, 2014 function report,
Roche stated that her impairments caused her "no problem with personal care." (Id.) Roche
prepared her own meals four to eight times a week, including "Spanish food, American, Chinese,
[and] Italian," but could not do any household chores or shopping "without being in extreme pain."
(R. 290-92.) Roche stated that she went outside once or twice a week and either walked or used
public transportation when doing so. (R. 291.) Later in the report, Roche stated that she went to the
doctor's office and deli two to three times per week. (R. 293.)
Roche stated that lifting, standing, walking, sitting, climbing stairs, kneeling,
squatting, reaching and using her hands caused her pain. (R. 293-94.) Roche wrote that she used
a back brace "all the time" to mitigate her pain. (R. 294-95.) Roche said she could walk for 15
minutes before needing to stop and rest for five minutes. (R. 295.) Roche wrote that she was "in
pain all day every day" due to her lower back pain that radiated to her legs and upper back. (R.
296-97.) Roche stated that her pain had increased in severity over time "from 7 to 10," and it was

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exacerbated by "everything except laying down." (R. 297.)
Roche had a hearing before ALJ Stacchini on January 6, 2016. (R. 70-104.) Roche
testified that her daughters ran errands for her and that she did not "go around anywhere, honestly."
(R. 77.) Roche had not been to the grocery store in three years, and the only errand she performed
during that time was to check her mailbox. (R. 78.) Roche had not used public transportation since
October 2013, and did no chores except feed her cat and "very light" cleaning such as wiping the
counter. (R. 78-80.) Roche's activities included caring for her two cats, watching "[a] lot of TV,"
"sleep[ing] a lot because of [her] meds" (R. 81), and walking "around the block" once or twice a
month (R. 82-83).
Roche stated that, besides making coffee and toast, she had not cooked a meal since
October 2013, and relied on her daughter to bring her meals. (R. 80.) On examination by her
attorney, Roche clarified that she prepared food in the microwave for herself, but that she did not
consider microwaving food to be cooking. (R. 93-94.) ALJ Stacchini asked whether making
"Spanish food, American food[,] . . . Chinese food, [and] Italian food" would be considered cooking,
to which Roche responded, "Yeah." (R. 94.) ALJ Stacchini responded: "And that's what you listed
though, [that] you prepare [food] eight to four times a week in your function report which you
prepared in 2014." (Id.; see also R. 290-92.) Roche responded that she "believe[d] [she] did cook
one time for [her] kids" in 2014, but could not "remember what day and what month." (R. 94.)
Roche testified that she suffered from lower back pain "[a]ll the time" that radiated
down her legs; "the only time" Roche felt some relief from the pain was when she laid down. (R.
83.) However, Roche stated that her spinal cord stimulator also helped alleviate her pain from "an
11" to a six or seven. (R. 83-85.) Roche nonetheless used a cane to ambulate and help maintain her
balance. (R. 85.) Roche also stated that, even with the spinal cord stimulator, she could not "sit at

5
a desk for most of the day" because she could only sit for 20 minutes before having to get up and
walk around. (R. 95.) Nor could Roche perform a job that required constant standing due to her
pain. (Id.) Roche stated that her pain interfered with her "focus and concentration" "[o]ften
enough," and that she could not sleep through the night. (R. 95-96.) Roche additionally complained
of right hand arthritis, which prevented her from carrying anything with that hand. (R. 92.)
Vocational expert Robert Baker also testified at the hearing before ALJ Stacchini.
(R. 97.) ALJ Stacchini asked Baker the following hypothetical question:
[A]ssume a hypothetical individual of [Roche's] age, education and work experience,
able to do the full range of sedentary work except that she would be limited to up to
occasional climbing ramps and stairs, but no climbing ladders, ropes or scaffolds and
occasional balance, stoop, kneel, crouching and crawling. She would be limited to
frequent right handling and frequent right fingering. She should avoid unprotected
heights and hazardous machinery.
....
She should also avoid atmospheric conditions . . . and would be limited to
understanding, remembering and carrying out simple, routine tasks with up to
occasional interaction with the general public, coworkers and supervisors.
(R. 98-99.) ALJ Stacchini remarked: "Based on that hypothetical . . . I can't imagine [Roche] could
do her past work." (R. 99.) However, ALJ Stacchini asked whether there was "other work in the
national economy that" Roche could perform. (Id.) Baker responded that Roche could perform the
unskilled sedentary positions of addresser, document preparer, and cutter and paster, all of which
existed in significant numbers in the national economy. (R. 99-100.)
ALJ Stacchini next asked whether Roche could perform these jobs if, in addition to
the limitations in the hypothetical, Roche "was permitted to use a cane for uneven terrain and
prolonged ambulation, that being greater than a city block." (R. 100.) Baker responded that the
additional limitation "wouldn't be an impediment to this work," because the positions involved
"office based work" without any "uneven ground . . . [and] minimal standing." (Id.) However,

6
Baker stated that Roche would be precluded from all work if she were further limited to being "off
task for 20% of the work period in addition to regularly scheduled breaks." (Id.) Alternatively,
Roche would be precluded from all work if she also was "limited to four hours of sitting and only
one hour of standing and walking in an eight-hour workday." (Id.)
Medical Evidence Before the ALJ
Dr. Julia Kaci
Roche attended a consultative internal medicine evaluation with Dr. Julia Kaci of
North Disability Services on February 14, 2014. (R. 488-92.) Roche stated that her low back pain
had worsened in the past two years, and that physical therapy and epidural injections provided some
relief. (R. 488.) Roche described her pain as constant, six out of ten, radiating down both legs with
numbness and burning in the left leg. (Id.)
Roche claimed that sitting, standing for more than an hour and a half, and walking
more than an hour caused her pain. (Id.) Roche stated that she could "not do any bending or lifting
at all" as they increased her back pain. (Id.) Roche also complained of intermittent neck pain
triggered by walking that began in 2013, which she rated a 7/10 in intensity. (Id.) Roche cooked
three times a week, cleaned once a month, showered twice a week, dressed herself four times a
week, and went to doctor's appointments. (R. 489-90.) Roche, however, could not do laundry, shop
or bathe because of her back pain. (Id.)
Roche appeared in no acute distress, had a normal gait and stance, could walk on
heels with difficulty (but not toes because of back pain) and fully squat, used no assistive devices,
needed no help changing or getting on and off of the examination table, and could rise from her
chair without difficulty. (R. 490.) Roche had full flexion, extension, rotary movement and lateral
flexion bilaterally in her cervical spine; no scoliosis, kyphosis or abnormality in the thoracic spine;

7
and full lateral flexion bilaterally, but limited flexion, extension and lateral rotation of 30 degrees
in her lumbar spine. (R. 491.)
Roche's straight leg raise test was positive at 45 degrees on the right and 30 degrees
on the left in the supine and sitting positions. (Id.) Roche had full range of motion in her shoulders,
elbows, forearms and wrists bilaterally; full range of motion in her hips, knees and ankles bilaterally;
and no evident subluxations, contractures, ankylosis or thickening. (Id.) Roche's joints were stable
and non-tender with no redness, heat, swelling or effusion, and no cyanosis, clubbing, edema or
muscle atrophy was evident in Roche's extremities. (Id.) Roche's hand and finger dexterity were
intact and her grip strength was 5/5 bilaterally, but her upper and lower extremity strength was 4/5.
(Id.)

Roche's deep tendon reflexes were "physiologic and equal in [her] upper and lower

extremities," with no sensory deficit. (Id.) Dr. Kaci noted that Roche's February 14, 2014
lumbosacral spine x-ray showed "no significant bony abnormality," and her cervical spine x-ray the
same day showed "disc space narrowing at C5-C6." (Id.; see also R. 494-95.)
Dr. Kaci concluded that Roche's prognosis was stable, and diagnosed Roche with
"[c]hronic low back pain with history of disc herniations and left sciatica," "[c]hronic neck pain with
history of disc herniations" and spinal arthritis, among other conditions. (R. 492.) Dr. Kaci opined
that Roche had mild limitations sitting and standing, moderate limitations walking and marked
limitations bending, lifting and carrying. (Id.) Dr. Kaci wrote that Roche also should avoid heights
because of her history of vertigo and known respiratory irritants because of her asthma. (Id.)
Dr. Christopher Lee
Roche's June 11, 2012 lumbar spine MRI revealed a maintained lumbar lordosis, mild
L4-L5 and moderate to marked L5-S1 degenerative disc space narrowing, discogenic vertebral
endplate scierosis at L5-S1, and minimal to mild bilateral L4-L5 and L5-S1 degenerative facet

8
hypertrophy. (R. 510.) The MRI further revealed "a very small central L4-L5 disc herniation . . .
with minimal thecal sac indentation," "diffuse degenerative disc bulging at the L5-S1 level," and
mild to moderate L5-S1 foraminal narrowing bilaterally secondary to degenerative disc bulging with
spondylosis. (Id.) No central canal stenosis was observed. (Id.) The reviewing physician's
impression stated: "Prominent degenerative disc space narrowing is seen at the L5-S1 level. There
is a very small central L4-L5 disc herniation. [M]ild to moderate right and mild left L5-S1
foraminal narrowing is seen." (Id.)
Roche's February 14, 2014 lumbosacral spine x-ray revealed no significant bony
abnormality, and showed that the height of the vertebral bodies and intervertebral disc spaces were
relatively well maintained. (R. 494.) Roche's cervical spine x-ray the same day revealed "narrowing
of the C5-C6 disc space" and "straightening," but "no compression fracture." (R. 495.)
On January 9, 23 and February 11, 2014, Roche received a lumbar transforminal
epidural steroid injection from Dr. Christopher Lee (R. 500, 503, 505), and, after the latter two
injections, she reported 60% relief but still experienced some pain (R. 499, 502).
On March 7 and May 13, 2014, Roche complained of back and thigh pain. (R.
496-97.)

Roche had cervical paraspinal muscle spasms, moderate lumbar paraspinal

tenderness/spasms, limited cervical and lumbar spine flexion and extension, a positive straight leg
raise test on the left, and diminished +1 deep tendon reflexes throughout her bilateral upper and
lower extremities. (Id.)2/ However, Roche had 5/5 strength throughout, a normal gait and a
"[s]ensory examination demonstrate[d] intact pinprick and light touch sensation of bilateral upper
and lower extremities." (Id.) During the latter visit, Dr. Lee diagnosed Roche with lumbar

2/

See https://informatics.med.nyu.edu/modules/pub/neurosurgery/reflexes.html.

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displaced disc at L4-L5, lumbar degenerative facet hypertrophy and lumbar radiculopathy at L5-S1.
(R. 507.) Dr. Lee referred Roche to neurosurgeon Dr. Yassari for further evaluation. (Id.)
Dr. Sharon Welch-Philip
On February 24, 2015, Dr. Sharon Welch-Philip completed a Municipal Housing
Authority Disability Exemption Verification Form in which she checked boxes indicating that Roche
was permanently disabled. (R. 616.)
On May 19, 2015, Dr. Welch-Philip wrote a "To Whom It May Concern" letter
stating that Roche had a history of degenerative disc disease with disc protrusion and, as a result,
was "unable to work due to severe pain and limitation of movement." (R. 618.)
Drs. Binod Shah and Arefin Siddique
On July 21, 2014, Roche presented to Dr. Binod Shah for a left trochanteric bursa
steroid injection to alleviate the pain from her left sided trochanteric bursitis. (R. 688.)
On September 8, 2014, Roche underwent a lumbar spine MRI due to her lower back
pain. (R. 686-87.) The MRI revealed maintenance of the normal lumbar lordosis and normal
vertebral body heights. (R. 686.) At L1-L4, the diameter of the spinal canal was within normal
limits, the dural sac was normal, the epidural fat planes were preserved and the intervertebral
foramen were patent. (Id.) At L4-L5, the MRI revealed disc desiccation, minimal decreased disc
space height, and a "[d]orsal disc-osteophyte complex protrusion, centrally compress[ing] the ventral
portion of the dural sac and narrow[ing] each intervertebral foramen, compressing the origin of each
exiting L5 root." (Id.) At L5-S1, disc desiccation, "diffuse and severe" decreased disc space height
and a dorsal disc-osteophyte complex protrustion that broadly compressed the ventral portion of the
dural sac and narrowed each intervertebral foramen were observed. (R. 687.) No paraspinal masses
were found. (Id.) The reviewing physician reiterated in the impression section of the report that

10
Roche had a central disc protrusion and severe degenerative disc disease at L5-S1. (Id.)
On November 3, 2014, Roche underwent a lumbar facet denervation to relieve her
lower back pain and left sided lumbar arthropathy. (R. 685.)
On January 21, 2015, Roche complained of constant 10/10 lower back pain radiating
to her lower extremities with numbness and tingling. (R. 683.) Roche was in distress, but had
normal motor and sensory function, intact and symmetrical deep tendon reflexes bilaterally and a
normal gait. (R. 684.) In the lumbar spine, Roche had a positive facet loading test bilaterally,
limited range of motion on flexion, extension and rotation bilaterally due to pain, and her paraspinal
muscles were tender and had spasms. (Id.)
On February 20, 2015, Roche complained of 10/10 lower back pain radiating to her
legs, aggravated by waking, standing, sitting, movement and lifting, and relieved by medication and
lying down. (R. 681.) Roche was well developed, had normal motor and sensory function, intact
and symmetrical deep tendon reflexes bilaterally and a normal gait. (R. 682.) In the lumbar spine,
Roche had a positive facet loading test bilaterally, limited range of motion on flexion, extension and
rotation bilaterally due to pain, and her paraspinal muscles were tender and had spasms. (Id.)
On March 2, 2015, Roche received an epidural lumbar steroid injection to relieve her
lower back pain and left sided lumbar radiculopathy. (R. 680.)
On May 19, 2015, Roche complained of constant 9/10 lower back pain with
numbness and tingling radiating to her lower extremities. (R. 677.) Roche stated that epidural
injections did not help. (Id.) On June 19, 2015, Roche saw Dr. Arefin Siddique and complained of
9/10 lower back pain radiating to both legs aggravated by walking, standing and sitting, and relieved
by medication and lying down. (R. 673.) On July 28 and August 25, 2015, Roche presented with
constant 10/10 lower back pain with numbness and tingling radiating to her lower extremities. (R.

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669, 671.) Roche again stated that her lower back epidural injections resulted in "no improvement."
(Id.)
On May 19, June 19, July 28 and August 25, 2015, Roche appeared alert and in no
distress. (R. 670, 672, 674, 678.) Roche moved her extremities well, no abnormalities were noted
in her motor and sensory function, and she had intact, symmetrical deep tendon reflexes bilaterally
and a normal gait (id.), although on May 19, July 28 and August 25 she ambulated with a cane (R.
670, 672, 678). At all four visits, Roche's cervical spine was unremarkable, but in the lumbar spine
she had a positive facet loading test bilaterally, and limited range of motion on flexion, extension
and rotation bilaterally due to pain. (R. 670, 672, 674, 678.) Roche's straight leg raise test also was
positive bilaterally, and her paraspinal muscles were tender and had spasms. (Id.)
On December 22, 2015, Roche complained of constant 8/10 right hand pain with
numbness and tingling. (R. 667.) Roche appeared well developed, well nourished, with normal
motor and sensory function, intact and symmetrical deep tendon reflexes bilaterally and a normal
gait. (R. 668.)
On January 5, 2015, Dr. Shah completed a physical functional capacity assessment.
(R. 743-49.) Dr. Shah wrote that Roche's primary problems were lower back pain and lumbar
radiculopathy resulting in constant pain and fatigue. (R. 743.) Dr. Shah wrote that "activities"
precipitated the pain, which reached up to a 10/10 in severity. (R. 744.)
Dr. Shah opined that Roche could walk one to two blocks without rest, could sit and
stand for no longer than 30 minutes, and could walk for no longer than one hour. (R. 746.) In an
eight-hour workday, Roche could sit, stand and walk for less than one hour total. (Id.) Roche would
need to take unscheduled breaks during an eight-hour workday for 15-20 minutes every 20-30
minutes. (Id.) Roche also would need to lie down or rest at unpredictable intervals during an eight-

12
hour workday for 30-45 minutes every two to three hours. (R. 747.) Roche required a cane when
engaging in occasional standing or walking, depending on the severity of her pain. (Id.)
Dr. Shah further opined that Roche could lift and carry no more than five pounds
occasionally (i.e., less than 1/3 of an eight hour day). (Id.) However, Dr. Shah did not indicate that
Roche had any limitations in the use of her hands, fingers, arms or neck, or in bending or twisting
her body at the waist. (R. 747-48.) Dr. Shah did not complete the portions of the form asking
whether Roche would have good and bad days, or how often she would be absent from work due
to her impairments. (R. 748.) Dr. Shah opined that Roche's symptoms had lasted or could be
expected to last at least 12 months, and that her impairments were reasonably consistent with the
symptoms and functional limitations described in the remainder of his evaluation. (R. 745.)
Montefiore Medical Center
On June 15, 2015, Roche had an initial evaluation with Dr. Andrew Gitkind regarding
her chronic low back pain, which was increased by sitting, standing, bending and twisting. (R. 905.)
Roche stated that she "had back pain for over 5 years and . . . had various attempts at conservative
management but without any long-term symptomatic relief," and that "[l]ast year she had . . . 5
epidural steroid injections which did not afford her any significant relief." (Id.) Roche further stated
that physical therapy had made her pain worse. (Id.)
Dr. Gitkind noted that Roche was recently seen by neurological surgeon Dr. Reza
Yassari who, after reviewing Roche's spinal imaging, determined that she was not an appropriate
surgical candidate. (R. 906.) Roche therefore was referred to Dr. Gitkind "for evaluation for a trial
of spinal cord stimulation." (Id.)
Roche was well developed and in no acute distress, but had pain and restricted
movement in her lumbar spine. (R. 908.) Roche's facet load test was positive on the left, and she

13
had paraspinal rigidity bilaterally. (Id.) An MRI of Roche's lumbar spine revealed "[l]umbar
spondylosis without frank compression of the neural elements." (R. 908-09.)
On July 15, 2015, Roche attended a follow up visit with Dr. Gitkind "5 days after
implantation of a trial spinal cord stimulation." (R. 900.) Roche reported that she was in no pain,
and had "been virtually pain-free" during the five day trial; Roche stated "that her activity level
ha[d] significantly improved as [did] her overall mood." (Id.) Roche had not used any pain
medication or an assistive device when walking during the trial. (Id.) Roche stated that she was
anxious to proceed with the permanent implantation of the stimulator. (Id.) Dr. Gitkind concluded
that Roche was "an excellent candidate for permanent implantation," and scheduled Roche to see
Dr. Yassari to discuss the procedure. (R. 903.)
On August 27, 2015, Roche attended an appointment with Dr. Yassari to discuss the
permanent implantation. (R. 691.) Roche stated that "[w]ith the trial in place she fe[lt] 65% better,
ha[d] improved balance and gait, [and could] ambulate and perform her ADLs significantly better."
(Id.) Roche also had decreased her medication usage during the trial. (Id.) Dr. Yassari stated that
he would schedule Roche for the permanent implantation procedure. (See R. 692-93.)
On September 25, 2015, Roche underwent permanent spinal cord stimulator insertion
surgery, performed by Drs. Yassari and Gitkind. (R. 718-19.) On October 28, 2015, Roche had a
post-operative physical examination, during which she reported that she was "doing very well," was
"very happy" and was in no pain. (R. 742.)
ALJ Stacchini's Decision
On March 24, 2016, ALJ Stacchini denied Roche's application for benefits. (R.
21-44.) ALJ Stacchini applied the appropriate five step legal analysis. (R. 28-29.) First, ALJ
Stacchini found that Roche had "not engaged in substantial gainful activity since October 28, 2013,

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the alleged onset date." (R. 29.) Second, ALJ Stacchini determined that Roche had "the following
severe impairments: cervical and lumbar degenerative discogenic disease, asthma, obesity, right
hand osteoarthritis, and depressive, bipolar and panic disorders." (Id.)
Third, ALJ Stacchini found that Roche did "not have an impairment or combination
of impairments that me[t] or medically equal[ed] the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1," "including Listing[] 1.00, Musculoskeletal System." (R. 31.)
ALJ Stacchini wrote that "[t]he severity of [Roche's] lumbar spine disorder did not satisfy the
criteria set forth by Listing 1.04 Disorders of the Spine," because "[t]he record did not demonstrate
functional loss that resulted in inability to ambulate effectively." (Id.) Although Roche "reported
using a cane as she alleged losing her balance," in August 2015, treating neurosurgeon "Dr. Yassari
. . . reported that [Roche] improved her balance and gait, can ambulate and perform her activities
of daily living significantly better." (Id.) Moreover, "Dr. Kaci's findings in February 2014 did not
establish abnormalities in gait." (Id.) ALJ Stacchini concluded: "Thus, the lumbar spine disorder,
as confirmed by a lumbar [MRI] study, did not interfere very seriously with [Roche's] ability to
independently initiate, sustain or complete activities." (Id.)
ALJ Stacchini next found that Roche's right hand osteoarthritis "did not satisfy the
criteria set forth by Listing 1.02, Major Dysfunction of a joint or 14.09, Inflammatory Arthritis."
(R. 31.) Roche "did not have inability to perform fine and gross movements effectively on a
sustained basis, including her alleged pain symptoms with tenderness to palpation." (Id.) Roche
also "had intact hand functioning during the consultative examination performed in February 2014."
(Id.) ALJ Stacchini concluded: "Because the record did not document inability to perform fine and
gross movements effectively, the cervical spine disorder, as confirmed by an x-ray, did not satisfy
the listing criteria set forth by Listing 1.04. From a physical standpoint, Dr. Kaci reported a full

15
range of motion in the neck and no upper extremity restrictions to support the extent of the alleged
neck pain with radicular symptoms." (R. 31.)
ALJ Stacchini found that Roche had the residual functional capacity ("RFC") to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except
that she can occasionally climb stairs and ramps, and never climb ladders or
scaffolds. She can occasionally balance, stoop, kneel, crouch, and crawl. She needs
to avoid unprotected heights, moving mechanical parts and atmospheric conditions.
She can frequently handle and finger with her right hand. She is limited to simple
and routine tasks with occasional interaction with coworkers, supervisors and the
general public.
(R. 33.)
ALJ Stacchini noted that Roche stated in her function reports that she spent her days
in bed sleeping, and testified at the hearing that "she had not prepared any meals or cleaned at all
since October of 2013." (R. 34.) However, ALJ Stacchini found that these statements were "not
consistent with other statement[s] in the record." (Id.) Roche admitted to cooking three times per
week in her function report and during her consultative examination with Dr. Kaci, and Dr. Kaci
found that Roche "remained independent in her personal care needs even though she complained
of difficulties." (Id.) Roche's treatment records with other physicians also indicated that she was
"able to complete her activities of daily living and perform household chores." (Id.)
Although Roche alleged limited mobility and difficulty walking, Dr. Kaci reported
that Roche had a normal gait and stance, and had no difficulty changing for the examination or
getting on and off of the examination table. (Id.) ALJ Stacchini accordingly found that Roche's
"allegations that she could walk for up to 10 minutes with rest periods of up to 20 minutes [we]re
not persuasive." (Id.)
ALJ Stacchini found that Roche's obesity, considered with Roche's other impairments
including her spine disorder, imposed no additional restrictions. (Id.) ALJ Stacchini nevertheless

16
considered Roche's obesity in determining her RFC. (Id.)
Next, ALJ Stacchini found that Roche could frequently handle and finger with her
dominant right hand. (Id.) ALJ Stacchini wrote that Roche "had right hand osteoarthritis changes
as of December 2015 to support her allegations of right hand pain," but Dr. Kaci found that Roche
"had intact hand and finger dexterity, full strength on grip, and no restrictions in the range of motion
of her shoulders, elbows, forearms and wrists[] bilaterally." (Id.) Dr. Kaci, moreover, included no
limitations in hand functioning. (Id.)
Roche further alleged neck pain, but Dr. Shah's examination findings in January,
February, June, August and December 2015 "did not establish abnormalities, consistent with Dr.
Kaci's findings of February 2014." (Id.) "Dr. Kaci reported no restrictions in the range of motion
despite the radiological findings that revealed narrowing at the C5/C6 level." (Id.) Dr. Kaci
"observed symmetrical reflexes and no motor or sensory abnormalities" were reported in Roche's
physical examinations with Dr. Shah. (R. 34-35.)
ALJ Stacchini nevertheless acknowledged that the laboratory findings regarding
Roche's cervical spine supported her neck pain allegations, but did "not support the intensity of her
alleged symptoms or radicular pain in the upper extremity." (R. 35.) Dr. Kaci wrote that Roche had
full range of motion in her neck, joints and upper extremities including her shoulders, elbows,
forearms and wrists bilaterally. (Id.) However, Dr. Kaci observed decreased strength in Roche's
upper extremities rated a 4/5, which supported some decreased capacity to exert force. (Id.) ALJ
Stacchini addressed this limitation by limiting Roche to a range of sedentary work. (Id.)
ALJ Stacchini next noted that Roche claimed that she could not lift anything heavier
than ten pounds in her Appeals Disability Report (R. 302), which conflicted with Dr. Shah's opinion
that Roche could only occasionally lift up to five pounds (R. 35). Dr. Shah's opinion on Roche's

17
ability to lift was given little weight as Roche "admitted she could lift heavier objects, equivalent
to sedentary work." (R. 35.)
As to Roche's allegations of severe back pain, stiffness and muscle spasms, ALJ
Stacchini gave "little weight" to Dr. Kaci's opinion that Roche had a marked limitation bending,
lifting and carrying. (Id.) ALJ Stacchini wrote that Dr. Kaci's restriction was vague and inconsistent
with her examination findings. (Id.) ALJ Stacchini found that Roche could "occasionally stand
and/or walk for up to 2 hours of an 8-hour workday, consistent with the sedentary level of exertion."
(Id.)
ALJ Stacchini expanded on his reasoning, noting that "[s]ubsequent laboratory
studies support[ed] the presence of degenerative changes" attributable to Roche's symptoms. (Id.)
Roche's September 2014 MRI revealed a normal lordosis and no abnormalities in the vertebral body
heights, but also revealed minimal decreased disc spaces at L4/L5, an osteophyte complex with
compression of the L5 nerve root and degenerative changes at L5/S1. (Id.) In August 2015, another
MRI indicated that Roche had multilevel spondylosis. (Id.) However, while Roche used a cane in
May, July and August 2015, she underwent a spinal cord stimulator procedure in August 2015 and,
"[t]hereafter, the evidence reveal[ed] that she was responsive to treatment." (R. 36.) Roche reported
"that she could ambulate and perform her activities of daily living significantly better," and "had a
decrease in the use of narcotic pain medication." (Id.) "By October 2015, a physical examination,
post-operation, revealed that [Roche] had no pain, was doing very well and was happy." (Id.)
ALJ Stacchini also stated that Roche alleged that she had degenerative changes in
her lower extremities, and limitations climbing stairs, kneeling and squatting. (Id.) However, Dr.
Kaci's examination did not reveal joint instability, redness, heat, swelling or effusion, and Roche had
full range of motion in her lower extremity joints. (Id.) ALJ Stacchini wrote that aside from

18
positive straight leg raise tests bilaterally at 45 degrees on the right and 30 degrees on the left, "the
evidence did not support a sensory deficit." (Id.) The records showed that Roche had some decrease
in strength bilaterally, which was consistent with Dr. Shah's findings, but Dr. Shah reported a
positive straight leg raise test at 50 degrees bilaterally "with greater functionality as compared to Dr.
Kaci's findings." (Id.) Thus, considering Dr. Kaci's and Dr. Shah's findings, ALJ Stacchini found
that Roche could occasionally climb stairs and ramps, and never climb ladders or scaffolds, due to
the degenerative changes in her lower extremities. (R. 36-37.)
However, ALJ Stacchini found that Dr. Kaci's conclusion that Roche had marked
limitations bending was inconsistent with the evidence. (R. 37.) Dr. Kaci observed that Roche had
full lateral flexion bilaterally, with limited forward flexion and extension at 30 degrees. (Id.) Dr.
Shah reported no neurological deficits and described Roche as alert and in no acute distress, and in
September 2015, Dr. Yassari reported that Roche's symptoms had improved. (Id.) Thus, ALJ
Stacchini wrote that the record did not support a marked bending limitation, and that Roche could
occasionally stoop. (Id.)
As for the opinion evidence, ALJ Stacchini gave Dr. Shah's December 2015 "medical
source statement with significant restrictions . . . little weight." (R. 36.) ALJ Stacchini wrote that
Dr. Shah opined that Roche was limited to thirty minutes of sitting, and between thirty minutes and
an hour of standing and/or walking, before needing to change positions. (Id.) However, ALJ
Stacchini gave "little weight" to this portion of Dr. Shah's opinion because it was not supported by
his own examination findings or Dr. Siddique's June 2015 examination. (Id.) Roche repeatedly had
"symmetrical deep tendon reflexes," and ALJ Stacchini found that "the extreme findings" were
inconsistent with other evidence showing that Roche was "independent with her activities of daily
living" and responded well to treatment. (Id.)

19
ALJ Stacchini also discussed Dr. Welch-Philip's February 2015 medical certificate
in which she opined that Roche was permanently disabled. (Id.) ALJ Stacchini gave Dr.
Welch-Philip's opinion "little weight" because it was conclusory and inconsistent with the medical
evidence demonstrating a decrease in Roche's symptoms with her prescribed course of treatment.
(Id.) Dr. Welch-Philip's "opinion did not include medical signs or laboratory findings to provide
a supportive explanation for her conclusion," and she "rendered an opinion dispositive of a case and
[on] an issue reserved to the Commissioner." (Id.) Moreover, the record did not include a statement
from Dr. Welch-Philip regarding Roche's functional limitations. (Id.)
ALJ Stacchini next found that although Roche's medically determinable impairments
could be expected to produce the alleged symptoms, Roche's statements concerning the intensity,
persistence and limiting effects of those symptoms were not entirely credible. (R. 41.) ALJ
Stacchini found that Roche's neck and back pain "did not limit her to the extent alleged." (Id.) "The
record reveal[ed] that Roche had pain symptoms that prompted her to have epidural injections and
surgery for a spinal cord stimulator which resulted in good control of her symptoms." (Id.) The
medical records indicated that Roche's neck pain was intermittent, and that she did not have
significant upper extremity limitations "as she had full range of motion in the movement of her
shoulders, elbows, forearms or wrists."

(Id.)

While Roche "had a history of right hand

osteoarthritis, the record did not establish restrictions in hand functioning consistent with Dr. Kaci's
examination." (Id.) ALJ Stacchini concluded that Roche retained the capacity to engage in
sedentary work subject to certain limitations. (R. 42.)
ALJ Stacchini next determined that Roche could not perform her past relevant work
as a home health aide, security guard and restaurant supervisor, but was a younger individual with
some education who spoke English. (R. 42-43.) Considering Roche's "age, education, work

20
experience, and residual functional capacity," ALJ Stacchini concluded that there were jobs that
Roche could perform, including those identified by vocational expert Robert Baker such as the
unskilled sedentary positions of addresser, document preparer, and cutter and paster, all of which
existed in significant numbers in the national economy. (R. 43-44.) ALJ Stacchini accordingly
concluded that Roche had "not been under a disability, as defined in the Social Security Act, from
October 28, 2013, through the date of [his] decision," March 24, 2016. (R. 44.)
ANALYSIS
I.

THE APPLICABLE LAW
A.

Definition Of Disability
A person is considered disabled for Social Security benefits purposes when he is

unable "to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S. Ct. 376, 379 (2003); Barnhart
v. Walton, 535 U.S. 212, 214, 122 S. Ct. 1265, 1268 (2002); Impala v. Astrue, 477 F. App'x 856,
857 (2d Cir. 2012).3/
An individual shall be determined to be under a disability only if [the combined

3/

See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010);
Betances v. Comm'r of Soc. Sec., 206 F. App'x 25, 26 (2d Cir. 2006); Surgeon v. Comm'r
of Soc. Sec., 190 F. App'x 37, 39 (2d Cir. 2006); Rodriguez v. Barnhart, 163 F. App'x 15,
16 (2d Cir. 2005); Malone v. Barnhart, 132 F. App'x 940, 941 (2d Cir. 2005); Butts v.
Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d
Cir. 2005); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v. Barnhart, 311
F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Brown v.
Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999);
Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d
Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).

21
effects of] his physical or mental impairment or impairments are of such severity that
he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S.
Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S. Ct. at 1270.4/
In determining whether an individual is disabled for disability benefit purposes, 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." Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).5/
B.

Standard Of Review
A court's review of the Commissioner's final decision is limited to determining

whether there is "substantial evidence" in the record as a whole to support such determination. E.g.,
42 U.S.C. § 405(g); Giunta v. Comm'r of Soc. Sec., 440 F. App'x 53, 53 (2d Cir. 2011).6/ "'Thus,

4/

See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 F. App'x at 111; Betances v. Comm'r of
Soc. Sec., 206 F. App'x at 26; Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311
F.3d at 472; Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo
v. Chater, 142 F.3d at 79.

5/

See, e.g., Brunson v. Callahan, No. 98-6229, 199 F.3d 1321 (table), 1999 WL 1012761 at
*1 (2d Cir. Oct. 14, 1999); Brown v. Apfel, 174 F.3d at 62.

6/

See also, e.g., Prince v. Astrue, 514 F. App'x 18, 19 (2d Cir. 2013); Salmini v. Comm'r of
Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010); Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d
Cir.), cert. denied, 551 U.S. 1132, 127 S. Ct. 2981 (2007); Halloran v. Barnhart, 362 F.3d
28, 31 (2d Cir. 2004); Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003); Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.
2000); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77
(continued...)

22
the role of the district court is quite limited and substantial deference is to be afforded the
Commissioner's decision.'" Morris v. Barnhart, 02 Civ. 0377, 2002 WL 1733804 at *4 (S.D.N.Y.
July 26, 2002) (Peck, M.J.).7/
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla
[and] such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971); accord, e.g.,
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Rosa v. Callahan, 168 F.3d at 77; Tejada v.
Apfel, 167 F.3d at 773-74.8/ "[F]actual issues need not have been resolved by the [Commissioner]
in accordance with what we conceive to be the preponderance of the evidence." Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207 (1983). The
Court must be careful not to "'substitute its own judgment for that of the [Commissioner], even if
it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949
F.2d 57, 59 (2d Cir. 1991).9/

6/

(...continued)
(2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Perez v. Chater, 77 F.3d
41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam); Dumas v. Schweiker, 712 F.2d
1545, 1550 (2d Cir. 1983).

7/

See also, e.g., Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at *5 (S.D.N.Y. Dec. 9,
1999) (Chin, D.J.) ("The Commissioner's decision is to be afforded considerable deference;
the reviewing court should not substitute its own judgment for that of the Commissioner,
even if it might justifiably have reached a different result upon a de novo review."
(quotations & alterations omitted)).

8/

See also, e.g., Halloran v. Barnhart, 362 F.3d at 31; Jasinski v. Barnhart, 341 F.3d at 184;
Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Brown v. Apfel, 174
F.3d at 61; Perez v. Chater, 77 F.3d at 46.

9/

See also, e.g., Campbell v. Astrue, 465 F. App'x 4, 6 (2d Cir. 2012); Veino v. Barnhart, 312
(continued...)

23
The Court, however, will not defer to the Commissioner's determination if it is "'the
product of legal error.'" E.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y.
Mar. 29, 2000) (Peck, M.J.); see also, e.g., Douglass v. Astrue, 496 F. App'x 154, 156 (2d Cir.
2012); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on other grounds, 416 F.3d 101
(2d Cir. 2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases).
The Commissioner's regulations set forth a five-step sequence to be used in
evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; see, e.g., Barnhart v. Thomas, 540
U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct.
2287, 2291 (1987). The Supreme Court has articulated the five steps as follows:
Acting pursuant to its statutory rulemaking authority, the agency has promulgated
regulations establishing a five-step sequential evaluation process to determine
disability. If at any step a finding of disability or nondisability can be made, the SSA
will not review the claim further. [1] At the first step, the agency will find
nondisability unless the claimant shows that he is not working at a "substantial
gainful activity." [2] At step two, the SSA will find nondisability unless the claimant
shows that he has a "severe impairment," defined as "any impairment or combination
of impairments which significantly limits [the claimant's] physical or mental ability
to do basic work activities." [3] At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies. [4] If the claimant's impairment is not on the list, the inquiry proceeds to
step four, at which the SSA assesses whether the claimant can do his previous work;
unless he shows that he cannot, he is determined not to be disabled. [5] If the
claimant survives the fourth stage, the fifth, and final, step requires the SSA to
consider so-called "vocational factors" (the claimant's age, education, and past work
experience), and to determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 540 U.S. at 24-25, 124 S. Ct. at 379-80 (fns. & citations omitted).10/

9/

(...continued)
F.3d at 586.

10/

Accord, e.g., Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Rosa v. Callahan, 168
(continued...)

24
The claimant bears the burden of proof as to the first four steps; if the claimant meets
the burden of proving that he cannot return to his past work, thereby establishing a prima facie case,
the Commissioner then has the burden of proving the last step, that there is other work the claimant
can perform considering not only his medical capacity but also his age, education and training. See,
e.g., Barnhart v. Thomas, 540 U.S. at 25, 124 S. Ct. at 379-80.11/
C.

The Treating Physician Rule
The "treating physician's rule" is a series of regulations set forth by the Commissioner

in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion.
Specifically, the Commissioner's regulations provide that:
If we find that a treating source's medical opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight.
20 C.F.R. § 404.1527(c)(2); see, e.g., Rugless v. Comm'r of Soc. Sec., 548 F. App'x 698, 699-700
(2d Cir. 2013); Meadors v. Astrue, 370 F. App'x 179, 182 (2d Cir. 2010); Colling v. Barnhart, 254
F. App'x 87, 89 (2d Cir. 2007); Lamorey v. Barnhart, 158 F. App'x 361, 362 (2d Cir. 2006).
Further, the regulations specify that when controlling weight is not given a treating
physician's opinion (because it is not "well-supported" by other medical evidence), the ALJ must

10/

(...continued)
F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; see also, e.g., Jasinski v. Barnhart, 341 F.3d
at 183-84; Shaw v. Chater, 221 F.3d at 132; Brown v. Apfel, 174 F.3d at 62; Balsamo v.
Chater, 142 F.3d 75, 79-80 (2d Cir. 1998); Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala,
54 F.3d 1019, 1022 (2d Cir. 1995); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).

11/

See also, e.g., Selian v. Astrue, 708 F.3d at 418; Betances v. Comm'r of Soc. Sec., 206 F.
App'x 25, 26 (2d Cir. 2006); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003);
Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675
F.2d at 467.

25
consider the following factors in determining the weight to be given such an opinion: (1) the length
of the treatment relationship and the frequency of examination; (2) the nature and extent of the
treatment relationship; (3) the evidence that supports the treating physician's report; (4) how
consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the
physician in contrast to the condition being treated; and (6) any other factors which may be
significant. 20 C.F.R. § 404.1527(c)(2)-(6); see, e.g., Cichocki v. Astrue, 534 F. App'x 71, 74 (2d
Cir. 2013); Gunter v. Comm'r of Soc. Sec., 361 F. App'x 197, 197 (2d Cir. 2010).12/
When a treating physician provides a favorable report, the claimant "is entitled to an
express recognition from the [ALJ or] Appeals Council of the existence of [the treating physician's]
favorable . . . report and, if the [ALJ or] Council does not credit the findings of that report, to an
explanation of why it does not." Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999); see, e.g.,
Cichocki v. Astrue, 534 F. App'x at 75; Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (ALJ's
failure to consider favorable treating physician evidence ordinarily requires remand pursuant to
Snell but does not require remand where the report was "essentially duplicative of evidence
considered by the ALJ"); Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) ("We of course do
not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, but we do
believe that the crucial factors in any determination must be set forth with sufficient specificity to
enable [reviewing courts] to decide whether the determination is supported by substantial evidence."
(citations omitted)); Ramos v. Barnhart, 02 Civ. 3127, 2003 WL 21032012 at *7, *9 (S.D.N.Y. May
6, 2003) (The ALJ's "'failure to mention such [treating physician report] evidence and set forth the

12/

See also, e.g., Foxman v. Barnhart, 157 F. App'x 344, 346-47 (2d Cir. 2005); Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000);
Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d
496, 503 (2d Cir. 1998).

26
reasons for his conclusions with sufficient specificity hinders [this Court's] ability . . . to decide
whether his determination is supported by substantial evidence.'").
The Commissioner's "treating physician" regulations were approved by the Second
Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).13/
II.

APPLICATION OF THE FIVE STEP SEQUENCE
A.

Roche Was Not Engaged In Substantial Gainful Activity
The first inquiry is whether Roche was engaged in substantial gainful activity after

her application for benefits. "Substantial gainful activity" is defined as work that involves "doing
significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit."
20 C.F.R. § 404.1510. ALJ Stacchini's conclusion that Roche did not engage in substantial gainful
activity during the applicable time period (see pages 13-14 above) is not disputed and benefits
Roche. (See generally Dkt. No. 22: Comm'r Br.) The Court therefore proceeds with the analysis.
B.

Roche Demonstrated "Severe" Impairments That Significantly Limited
Her Ability To Do Basic Work Activities
The second step of the analysis is to determine whether Roche proved that she had

a severe impairment or combination of impairments that "significantly limit[ed her] physical or
mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). The ability to do basic work
activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §
404.1522(b). "Basic work activities" include:
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling
. . . seeing, hearing, and speaking . . . [u]nderstanding, carrying out, and

13/

Although not relevant here, the Court notes that the regulations governing the "treating
physician rule" recently changed as to claims filed on or after March 27, 2017. See 20
C.F.R. §§ 404.1527, 404.1520c; Revisions to Rules Regarding the Evaluation of Medical
Evidence, 82 FR 5844-01, 2017 WL 168819 at *5844, *5867-68 (Jan. 18, 2017).

27
remembering simple instructions . . . [u]se of judgment . . . [r]esponding
appropriately to supervision, co-workers and usual work situations . . . [d]ealing with
changes in a routine work setting.
20 C.F.R. § 404.1522(b)(1)-(6).
ALJ Stacchini determined that Roche's severe impairments were "cervical and lumbar
degenerative discogenic disease, asthma, obesity, right hand osteoarthritis, and depressive, bipolar
and panic disorders." (See page 14 above.) ALJ Stacchini's findings regarding the step-two severity
of these impairments benefit Roche. Accordingly, the Court proceeds to the third step of the
five-part analysis.
C.

Roche Did Not Have A Disability Listed In Appendix 1 Of The Regulations
The third step of the five-step test requires a determination of whether Roche had an

impairment listed in Appendix 1 of the Regulations. 20 C.F.R. Pt. 404, Subpt. P, App. 1. "These
are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude
gainful employment. If a claimant's condition meets or equals the 'listed' impairments, he or she is
conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019,
1022 (2d Cir. 1995).
ALJ Stacchini found that notwithstanding Roche's severe impairments, she did "not
have an impairment or combination of impairments that me[t] or medically equal[ed] the severity
of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1," "including Listing[]
1.00, Musculoskeletal System." (See page 14 above.) ALJ Stacchini wrote that "[t]he severity of
[Roche's] lumbar spine disorder did not satisfy the criteria set forth by Listing 1.04 Disorders of the
Spine," because "[t]he record did not demonstrate functional loss that resulted in inability to
ambulate effectively." (See page 14 above.) Although Roche "reported using a cane as she alleged
losing her balance," in August 2015, treating neurosurgeon "Dr. Yassari . . . reported that [Roche]

28
improved her balance and gait, can ambulate and perform her activities of daily living significantly
better." (Id.) Moreover, "Dr. Kaci's findings in February 2014 did not establish abnormalities in
gait." (Id.) ALJ Stacchini concluded: "Thus, the lumbar spine disorder, as confirmed by a[n] [MRI]
study, did not interfere very seriously with [Roche's] ability to independently initiate, sustain or
complete activities." (Id.)
Roche argues that ALJ Stacchini failed to properly assess whether Roche met Listing
1.04 by only discussing Listing 1.04(C), not 1.04(A). (Dkt. No. 18: Roche Br. at 12-16.) Roche
further argues that this error warrants remand for calculation of benefits because it is likely that she
meets the requirements of Listing 1.04(A). (Id. at 13-14.) The Commissioner responds that ALJ
Stacchini "correctly analyzed [Roche's] impairment under Listing 1.04(C), and found that the
evidence did not support a conclusion that she met the requirements of that Listing." (Dkt. No. 22:
Comm'r Br. at 19.) The Commissioner argues that "the ALJ did not explicitly consider Listing
1.04(A) because there was no indication that [Roche] was close to meeting this listing." (Id.) The
Court discusses Listing 1.04(A) below.
1.

Listing 1.04: Disorders Of The Spine14/

For a disorder of the spine to be considered severe it must result "in compromise of
a nerve root (including the cauda equina) or the spinal cord" with:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss and, if there
is involvement of the lower back, positive straight-leg raising test (sitting and
supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue

14/

The Listing cited in this section of the opinion is the version that was in effect on March 24,
2016, the date of ALJ Stacchini's decision. (See page 13 above.)

29
biopsy, or by appropriate medically acceptable imaging, manifested by severe
burning or painful dysesthesia, resulting in the need for changes in position or
posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings
on appropriate medically acceptable imaging, manifested by chronic nonradicular
pain and weakness, and resulting in inability to ambulate effectively, as defined in
1.00B2b.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04.
Roche correctly argues (and the Commissioner concedes) that she meets many of the
criteria set forth in Listing 1.04(A). (Dkt. No. 18: Roche Br. at 13; Dkt. No. 22: Comm'r Br. at 21
("Here, some, but not all, of the Listing [1.04(A)] requirements are met.").) Specifically, Roche's
September 2014 MRI revealed that she had an osteophyte complex with compression of the L5
nerve root, Dr. Shah found that Roche had limited range of motion in her spine on multiple
occasions, and Drs. Kaci and Shah wrote that Roche had positive straight leg raise tests bilaterally.
(See pages 7, 9-12 above.) However, as Roche concedes, less apparent from the records is evidence
of "motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A); see also Roche Br. at 13
("The only questionable element of the Listing in Roche's medical record is the element of motor
loss accompanied by sensory and reflex loss."). Roche, however, argues that Dr. Lee found "muscle
weakness and diminished reflex on a number of occasions," Dr. Kaci "found decreased strength at
the consultative exam" and Dr. Welch-Philip "found diminished reflexes as well," which "satisfy
the remaining element of the Listing which does not require a particular level of weakness or reflex
loss." (Roche Br. at 13.)
Roche is correct that some record evidence might satisfy the remaining criteria of
Listing 1.04(A). Dr. Lee opined on two occasions that Roche had diminished +1 deep tendon

30
reflexes throughout her bilateral upper and lower extremities, and Dr. Kaci found that Roche's upper
and lower extremity strength was 4/5, and that Roche could walk on heels with difficulty, but not
toes because of back pain. (See pages 6-9 above); see 20 C.F.R. § Pt. 404, Subpt. P, App. 1, §
1.00(E)(1) ("Observations of the individual during the examination should be reported; e.g., how
he or she gets on and off the examination table. Inability to walk on the heels or toes, to squat, or
to arise from a squatting position, when appropriate, may be considered evidence of significant
motor loss."). On May 19, 2015, Dr. Welch-Philip wrote a (conclusory) "To Whom It May
Concern" letter stating that Roche had a history of degenerative disc disease with disc protrusion
and, as a result, was "unable to work due to severe pain and limitation of movement." (See page 9
above.)
Given this evidence, ALJ Stacchini should have addressed Listing 1.04(A), if only
to clarify that the weight of the evidence did not indicate that Roche met or equaled its criteria.
Nevertheless, "in spite of the ALJ's failure to explain his rejection of the claimed listed impairments,
[the Court was] able to look to other portions of the ALJ's decision and to clearly credible evidence
in finding that his determination was supported by substantial evidence." Berry v. Schweiker, 675
F.2d 464, 469 (2d Cir. 1982).15/ ALJ Stacchini addressed Roche's motor, sensory and reflex loss in

15/

See also, e.g., Solis v. Berryhill, 692 F. App'x 46, 48 (2d Cir. 2017) (Plaintiff's "challenge
to the ALJ's listing determination is meritless. Although the ALJ did not explicitly discuss
Listing 11.14, his general conclusion (that [plaintiff] did not meet a listed impairment) is
supported by substantial evidence."); Berry v. Schweiker, 675 F.2d at 467-68 ("The ALJ
rejected these contentions [that plaintiff met the relevant Listing], stating: 'This Judge has
reviewed all of the material medical evidence and the claimant's testimony and concludes
that this claimant's conditions were not attended by clinical findings that meet or equal in
severity the requirements of Appendix 1 (of the relevant regulations).' Unfortunately, the
ALJ's otherwise thorough opinion failed to set forth a specific rationale in support of the
foregoing conclusion. Nonetheless, the absence of an express rationale does not prevent us
from upholding the ALJ's determination regarding appellant's claimed listed impairments,
(continued...)

31
the remainder of his decision, which supports his determination that Roche "did not satisfy the
severity criteria set forth by . . . Listing[] 1.00" or, more specifically, "Listing 1.04 Disorders of the
Spine." (R. 31.)
ALJ Stacchini wrote that Roche alleged neck pain, but Dr. Shah's examination
findings in January, February, June, August and December 2015 "did not establish abnormalities,
consistent with Dr. Kaci's findings of February 2014." (See page 16 above.) "Dr. Kaci reported no
restrictions in the range of motion despite the radiological findings that revealed narrowing at the
C5/C6 level." (Id.) Dr. Kaci also observed full range of motion in Roche's upper extremities and
"symmetrical reflexes[,] and no motor or sensory abnormalities" were reported in Roche's physical
examinations with Dr. Shah. (See pages 7, 16 above.) ALJ Stacchini stated that Dr. Shah's records
showed that Roche repeatedly had "symmetrical deep tendon reflexes" and that, aside from positive
straight leg raise tests during Dr. Kaci's examination, "the evidence did not support a sensory deficit"
although Roche had some decrease in strength bilaterally consistent with Dr. Shah's findings. (See
pages 17-18 above.)
ALJ Stacchini's findings are supported by substantial evidence in the record. As ALJ
Stacchini noted, Dr. Kaci's consultative examination report includes a number of normal findings.

15/

(...continued)
since portions of the ALJ's decision and the evidence before him indicate that his conclusion
was supported by substantial evidence."); Mercado v. Berryhill, No. 15-CV-00282, 2017 WL
6275726 at *3 (W.D.N.Y. Dec. 11, 2017) ("If the ALJ does not provide reasons for rejecting
a listed impairment, the Court may look to other parts of the decision and credible evidence
in the record to determine if the rejection was supported by substantial evidence."); Scully
v. Berryhill, 16 Civ. 7211, 2017 WL 4564926 at *6 (S.D.N.Y. Oct. 12, 2017) ("Instead of
specifying why the medical evidence demonstrated that [plaintiff] did not meet this listing's
requirements, the ALJ referred to 'the evidence detailed below.' This reference is
permissible, provided the ALJ supports this determination elsewhere in his or her opinion."
(record citation omitted)).

32
Dr. Kaci wrote that Roche appeared in no acute distress, had a normal gait and stance, could walk
on heels with difficulty and fully squat, used no assistive devices, needed no help changing or
getting on and off of the examination table, and could rise from her chair without difficulty. (See
page 6 above.) Roche had full flexion, extension, rotary movement and lateral flexion bilaterally
in her cervical spine; no scoliosis, kyphosis or abnormality in the thoracic spine; and full lateral
flexion bilaterally. (See pages 6-7 above.) Roche had full range of motion in her shoulders, elbows,
forearms and wrists bilaterally; full range of motion in her hips, knees and ankles bilaterally; and
no evident subluxations, contractures, ankylosis or thickening. (See page 7 above.) Roche's joints
were stable and non-tender with no redness, heat, swelling or effusion, and no cyanosis, clubbing,
edema or muscle atrophy was evident in her extremities. (Id.) Roche's deep tendon reflexes were
"physiologic and equal in [her] upper and lower extremities," with no sensory deficit. (Id.)
ALJ Stacchini also correctly noted that Dr. Shah's notes indicate that Roche's motor,
sensory and reflex functions were largely normal. On January 21, February 20, May 19, June 19,
July 28, August 25 and December 22, 2015, Roche had normal motor and sensory function, intact
and symmetrical deep tendon reflexes bilaterally, and a normal gait. (See pages 10-11 above.) And,
although Dr. Lee found that Roche had diminished tendon reflexes, he also found on two occasions
that Roche had 5/5 strength throughout and a normal gait, and a "[s]ensory examination
demonstrate[d] intact pinprick and light touch sensation of bilateral upper and lower extremities."
(See page 8 above.)
The Court accordingly finds that, while ALJ Stacchini should have better explained
his Listing analysis, his determination that Roche did not meet Listing 1.04 was supported by

33
substantial evidence discussed elsewhere in the decision.16/
D.

ALJ Stacchini's Credibility and RFC Determinations
Before proceeding to step four, the Court will address ALJ Stacchini's credibility and

residual functional capacity ("RFC") determinations.
1.

Credibility Determination

Because subjective symptoms only lessen a claimant's RFC where the symptoms
"'can reasonably be accepted as consistent with the objective medical evidence and other evidence,'
the ALJ is not required to accept allegations regarding the extent of symptoms that are inconsistent
with the claimant's statements or similar evidence." Moulding v. Astrue, 08 Civ. 9824, 2009 WL
3241397 at *7 (S.D.N.Y. Oct. 8, 2009) (citation & emphasis omitted).17/ In addition, "courts must

16/

Roche further argues in her reply brief that, "[b]eyond the failure to analyze if Roche meets
the Listing [1.04(A)] argued, both the ALJ and the Appeals Council . . . failed to determine
if Roche's impairments equaled the Listing." (Dkt. No. 23: Roche Reply Br. at 3.) See, e.g.,
Bellamy v. Astrue, No. 08-CV-0628, 2010 WL 2025489 at *9 (W.D.N.Y. Mar. 30, 2010)
("If the impairments are listed in the Appendix, and the duration requirement is satisfied, the
impairment or impairments are considered severe enough to prevent the claimant from
performing any gainful activity and the claimant is considered disabled. Absent a Listed
Impairment, if a claimant alleges an impairment that is not specifically listed in the
regulations under the Listing of Impairments, a determination of medical equivalence is
required." (citations omitted)), R. & R. adopted as modified, 2010 WL 2025486 (W.D.N.Y.
May 20, 2010). However, ALJ Stacchini analyzed the evidence related to Roche's motor,
sensory and reflex functioning as relevant to Listing 1.04(A), and Roche makes no specific
equivalency argument aside from the vague claim (with no record citations) that some
unspecified impairments might have equaled a Listing. (See generally Roche Reply Br.)

17/

See, e.g., Campbell v. Astrue, 465 F. App'x 4, 7 (2d Cir. 2012) ("As for the ALJ's credibility
determination, while an ALJ 'is required to take the claimant's reports of pain and other
limitations into account,' he or she is 'not require[d] to accept the claimant's subjective
complaints without question.' Rather, the ALJ 'may exercise discretion in weighing the
credibility of the claimant's testimony in light of the other evidence in the record.'" (citations
omitted)); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); Brown v. Comm'r of Soc. Sec.,
310 F. App'x 450, 451 (2d Cir. 2009) ("'Where there is conflicting evidence about a
claimant's pain, the ALJ must make credibility findings.'"); Rivers v. Astrue, 280 F. App'x
(continued...)

34
show special deference to an ALJ's credibility determinations because the ALJ had the opportunity
to observe plaintiff's demeanor while [the plaintiff was] testifying." Marquez v. Colvin, 12 Civ.
6819, 2013 WL 5568718 at *7 (S.D.N.Y. Oct. 9, 2013).18/ Thus, "[i]f the [Commissioner's] findings
are supported by substantial evidence, the court must uphold the ALJ's decision to discount a
claimant's subjective complaints." Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588,
591 (2d Cir. 1984) (citations omitted).
When an ALJ determines that a claimant's own statements regarding her symptoms
are not supported by the record, that "determination or decision must contain specific reasons for

17/

(...continued)
20, 22 (2d Cir. 2008) (same); Thompson v. Barnhart, 75 F. App'x 842, 845 (2d Cir. 2003)
(ALJ properly found that plaintiff's "description of her symptoms was at odds with her
treatment history, her medication regime, and her daily routine"); Snell v. Apfel, 177 F.3d
128, 135 (2d Cir. 1999); Norman v. Astrue, 912 F. Supp. 2d 33, 85 (S.D.N.Y. 2012) ("It is
'within the discretion of the [Commissioner] to evaluate the credibility of plaintiff's
complaints and render an independent judgment in light of the medical findings and other
evidence regarding the true extent of such symptomatology.'"); Astolos v. Astrue, No. 06CV-678, 2009 WL 3333234 at *12 (W.D.N.Y. Oct. 14, 2009) (ALJ properly determined that
plaintiff's subjective pain complaints were not supported by the medical record); Speruggia
v. Astrue, No. 05-CV-3532, 2008 WL 818004 at *11 (E.D.N.Y. Mar. 26, 2008) ("The ALJ
'does not have to accept plaintiff's subjective testimony about her symptoms without
question' and should determine a plaintiff's credibility 'in light of all the evidence.'"); Soto
v. Barnhart, 01 Civ. 7905, 2002 WL 31729500 at *6 (S.D.N.Y. Dec. 4, 2002) ("The ALJ has
the capacity and the 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 pain alleged by the claimant."); Brandon v. Bowen, 666 F. Supp. 604, 608
(S.D.N.Y. 1987) (same).

18/

Accord, e.g., Campbell v. Astrue, 465 F. App'x at 7 ("[W]e have long held that '[i]t is the
function of the [Commissioner], not ourselves, . . . to appraise the credibility of witnesses,
including the claimant."'); Nunez v. Astrue, 11 Civ. 8711, 2013 WL 3753421 at *7
(S.D.N.Y. July 17, 2013); Guzman v. Astrue, 09 Civ. 3928, 2011 WL 666194 at *7
(S.D.N.Y. Feb. 4, 2011); Ruiz v. Barnhart, 03 Civ. 10128, 2006 WL 1273832 at *7
(S.D.N.Y. May 10, 2006); Gernavage v. Shalala, 882 F. Supp. 1413, 1419 & n.6 (S.D.N.Y.
1995); Mejias v. Soc. Sec. Admin., 445 F. Supp. 741, 744 (S.D.N.Y. 1978) (Weinfeld, D.J.);
Wrennick v. Sec'y of Health, Educ. & Welfare, 441 F. Supp. 482, 485 (S.D.N.Y. 1977)
(Weinfeld D.J.).

35
the finding on credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator
gave to the individual's statements and the reasons for that weight." SSR 96-7p, 1996 WL 374186
at *2 (July 2, 1996).19/ The regulations set out a two-step process for assessing a claimant's
statements about pain and other limitations:
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. . . . 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. The ALJ must consider statements the claimant or others make about his
impairment(s), his restrictions, his daily activities, his efforts to work, or any other
relevant statements he makes to medical sources during the course of examination
or treatment, or to the agency during interviews, on applications, in letters, and in
testimony in its administrative proceedings.
Genier v. Astrue, 606 F.3d at 49 (quotations, citation & brackets omitted) (citing 20 C.F.R.

19/

In March 2016, the SSA released SSR 16-3p, which provides updated guidance on
evaluating a claimant's assertions about the work-preclusive nature of her symptoms. See
generally SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016); see also, e.g., Duran v. Colvin,
14 Civ. 8677, 2016 WL 5369481 at *13 n.27 (S.D.N.Y. Sept. 26, 2016) ("SSR 16-3p
supersedes SSR 96-7p, 1996 WL 374186 (July 2, 1996), and clarifies the policies set forth
in the previous SSR."). SSR 16-3p, however, was not made retroactive and the Court
therefore applies SSR 96-7p as the ruling in effect at the time of the ALJ's decision in this
case. See, e.g., Crampton v. Comm'r of Soc. Sec., No. 16-CV-0356, 2017 WL 2829515 at
*6 n.3 (N.D.N.Y. June 29, 2017); Smith v. Colvin, No. 14-CV-1752, 2016 WL 1170910 at
*7 n.3 (D. Conn. Mar. 23, 2016). In any event, the substance of the two-step process for
evaluating claimants' symptoms discussed herein was not modified by SSR 16-3p. Accord
SSR 16-3p, 2016 WL 1119029 at *3-4; see also, e.g., Burgess v. Colvin, 15 Civ. 9585, 2016
WL 7339925 at *11 (S.D.N.Y. Dec. 19, 2016) (citing SSR 16-3p for an explanation of the
two-step process for assessing claimants' statements about their symptoms). Rather, SSR
16-3p's updated guidance is a matter of emphasis: whereas SSR 96-7p "placed a stronger
emphasis on the role of the adjudicator to make a 'finding about the credibility of the
individual's statements about the symptom(s) and its functional effects' . . . S.S.R. 16-3p
espouses a more holistic analysis of the claimant's symptoms, and 'eliminate[s] the use of
the term "credibility"' from sub-regulation policy." Acosta v. Colvin, 15 Civ. 4051, 2016
WL 6952338 at *18 (S.D.N.Y. Nov. 28, 2016).

36
§§ 404.1529(a), 404.1529(b), and the now-superseded SSR 96-7p).
In Roche's more recent function report, she stated that her impairments prevented her
from "work[ing], stand[ing], bend[ing], lift[ing], . . . clean[ing]" and sleeping through the night.
(See page 3 above.) Roche stated that lifting, standing, walking, sitting, climbing stairs, kneeling,
squatting, reaching and using her hands caused her pain, and that she could walk for 15 minutes
before needing to stop and rest for five minutes. (Id.) At the hearing before ALJ Stacchini, Roche
testified that, even with the spinal cord stimulator implant, which only helped alleviate her pain from
"an 11" to a six or seven, she could not "sit at a desk for most of the day" because she could only
sit for 20 minutes before she would have to get up and walk around. (See pages 4-5 above.)
According to Roche, she could not perform a job that required constant standing due to her pain.
(See page 5 above.) Roche additionally complained of right hand arthritis, which prevented her
from carrying anything using that hand. (Id.) At the hearing, Roche testified that she had not been
to the grocery store in three years, and the only errand she performed during that time was to check
her mailbox. (See page 4 above.) Roche testified that she had not used public transportation since
October 2013, and did no chores except feed her cat and "very light" cleaning such as wiping the
counter. (Id.) Roche further stated that she had not cooked a meal besides making coffee and toast
since October 2013, and relied on her daughter to bring her meals. (Id.)
ALJ Stacchini reviewed Roche's testimony and the record evidence. (R. 33-42.) ALJ
Stacchini found that although Roche's medically determinable impairments could be expected to
produce the alleged symptoms, Roche's statements concerning the intensity, persistence and limiting
effects of those symptoms were not entirely credible. (See page 19 above.) ALJ Stacchini found
that Roche's neck and back pain "did not limit her to the extent alleged." (Id.) "The record
reveal[ed] that Roche had pain symptoms that prompted her to have epidural injections and surgery

37
for a spinal cord stimulator which resulted in good control of her symptoms." (Id.) The medical
records indicated that Roche's neck pain was intermittent, and that she did not have significant upper
extremity limitations "as she had full range of motion in the movement of her shoulders, elbows,
forearms or wrists." (Id.) While Roche "had a history of right hand osteoarthritis, the record did
not establish restrictions in hand functioning consistent with Dr. Kaci's examination." (Id.)
To support his conclusion regarding Roche's physical impairments, ALJ Stacchini
cited a number of records from Dr. Kaci and Dr. Shah that included normal findings. (See pages
15-19 above.) In particular, ALJ Stacchini noted that Dr. Kaci reported that Roche had a normal gait
and stance, no difficulty changing for the examination or getting on and off of the examination table,
"intact hand and finger dexterity, full strength on grip, and no restrictions in the range of motion of
her shoulders, elbows, forearms and wrists[] bilaterally." (See pages 15-16 above.) ALJ Stacchini
also noted that Dr. Shah's examination findings in January, February, June, August and December
2015 "did not establish abnormalities, consistent with Dr. Kaci's findings of February 2014." (See
page 16 above.) Moreover, ALJ Stacchini noted that Roche underwent a spinal cord stimulator
procedure in August 2015 and, "[t]hereafter, the evidence reveal[ed] that she was responsive to
treatment." (See page 17 above.) Roche told her treating doctors "that she could ambulate and
perform her activities of daily living significantly better," and "had a decrease in the use of narcotic
pain medication." (Id.) "By October 2015, a physical examination, post-operation, revealed that
[Roche] had no pain, was doing very well and was happy." (Id.)
As to activities of daily living, ALJ Stacchini found that Roche's statements were "not
consistent with other statement[s] in the record," as Roche admitted to cooking three times per week
in her function report and Dr. Kaci found that Roche "remained independent in her personal care
needs even though she complained of difficulties." (See page 15 above.) Roche's treatment records

38
with other physicians also indicated that Roche was "able to complete her activities of daily living
and perform household chores." (Id.)
ALJ Stacchini appropriately applied the two-part credibility test and supported his
findings with substantial evidence in Roche's treatment records regarding her physical impairments.
Dr. Kaci's examination report includes numerous normal findings, as ALJ Stacchini noted. Roche
informed Dr. Kaci that she cooked three times a week, cleaned once a month, showered twice a
week, dressed herself four times a week, and went to doctor's appointments. (See page 6 above.)20/
Roche appeared in no acute distress, had a normal gait and stance, could walk on heels with
difficulty, fully squat, used no assistive devices, needed no help changing or getting on and off of
the examination table, and could rise from her chair without difficulty. (See page 6 above.) Roche
had full flexion, extension, rotary movement and lateral flexion bilaterally in her cervical spine; no
scoliosis, kyphosis or abnormality in the thoracic spine; and full lateral flexion bilaterally. (See
pages 6-7 above.) Roche had full range of motion in her shoulders, elbows, forearms and wrists
bilaterally; full range of motion in her hips, knees and ankles bilaterally; and no evident
subluxations, contractures, ankylosis or thickening. (See page 7 above.) Roche's joints were stable
and non-tender with no redness, heat, swelling or effusion, and no cyanosis, clubbing, edema or
muscle atrophy was evident in her extremities. (Id.) Roche's hand and finger dexterity were intact
and her grip strength was 5/5 bilaterally. (Id.) Dr. Kaci concluded that Roche had mild limitations
to sitting and standing, and moderate limitations to walking, in contrast to Roche's more extreme

20/

The Court also notes that Roche's testimony that she had not cooked a meal since October
2013 starkly contradicted her February 4, 2014 function report in which she stated that she
prepared her own meals four to eight times a week. (See pages 3-4 above.) When ALJ
Stacchini pointed out this inconsistency, Roche admitted that she had cooked but only one
time, again in contrast to her function report and her previous hearing testimony. (See page
4 above.)

39
self-assessment. (Id.)
As to Dr. Shah's records cited by ALJ Stacchini, on January 21, February 20, May
19, June 19, July 28, August 25 and December 22, 2015, Roche had normal motor and sensory
function, intact and symmetrical deep tendon reflexes bilaterally and a normal gait. (See pages 9-12
above.) Dr. Lee also found on two occasions that Roche had 5/5 strength throughout and a normal
gait, and a "[s]ensory examination demonstrate[d] intact pinprick and light touch sensation of
bilateral upper and lower extremities." (See page 8 above.)
Finally, ALJ Stacchini correctly found that Roche's spinal cord stimulator procedure
was successful, and the records from Drs. Gitkind and Yassari undercut Roche's statements
regarding the severity of her pain following the implant. On July 15, 2015, Roche attended a follow
up visit with Dr. Gitkind "5 days after implantation of a trial spinal cord stimulation." (See page 13
above.) Roche reported that she was in no pain, and had "been virtually pain-free" during the five
day trial; Roche stated "that her activity level ha[d] significantly improved as [did] her overall
mood." (Id.) Roche had not used any pain medication or an assistive device when walking during
the trial. (Id.) On August 27, 2015, Roche stated that "[w]ith the trial in place she fe[lt] 65% better,
ha[d] improved balance and gait, [and could] ambulate and perform her ADLs significantly better."
(Id.) On October 28, 2015, Roche had a post-operative physical examination following the
permanent implantation, during which she reported that she was "doing very well," was "very
happy" and was in no pain. (Id.)
ALJ Stacchini supported his credibility determination with substantial evidence in
Roche's treatment records.
2.

Residual Functional Capacity Determination

ALJ Stacchini found that Roche had the ability to perform sedentary work as defined

40
in 20 C.F.R. § 404.1567(b), except that she
can occasionally climb stairs and ramps, and never climb ladders or scaffolds. She
can occasionally balance, stoop, kneel, crouch, and crawl. She needs to avoid
unprotected heights, moving mechanical parts and atmospheric conditions. She can
frequently handle and finger with her right hand. She is limited to simple and routine
tasks with occasional interaction with coworkers, supervisors and the general public.
(See page 15 above.)
Sedentary work 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).
ALJ Stacchini explained his reasoning in his RFC analysis, separately addressing
Roche's difficulty walking, right-hand limitations, neck pain, and severe back and lower extremity
pain. (See pages 15-19 above.)
First, ALJ Stacchini wrote that although Roche alleged limited mobility and difficulty
walking, Dr. Kaci reported that Roche had a normal gait and stance, and had no difficulty changing
for the examination or getting on and off of the examination table. (See page 15 above.) ALJ
Stacchini accordingly found that Roche's "allegations that she could walk for up to 10 minutes with
rest periods of up to 20 minutes [we]re not persuasive." (Id.) While Roche alleged severe back
pain, stiffness and muscle spasms, ALJ Stacchini gave "little weight" to Dr. Kaci's opinion that
Roche had a marked limitation bending, lifting and carrying, as inconsistent with her examination
findings. (See page 17 above.) ALJ Stacchini found that Roche could "occasionally stand and/or
walk for up to 2 hours of an 8-hour workday, consistent with the sedentary level of exertion." (Id.)

41
Second, ALJ Stacchini found that Roche could frequently handle and finger with her
dominant right hand; notwithstanding Roche's right hand osteoarthritis, Dr. Kaci found that Roche
"had intact hand and finger dexterity, full strength on grip, and no restrictions in the range of motion
of her shoulders, elbows, forearms and wrists[] bilaterally." (See page 16 above.) Dr. Kaci,
moreover, included no limitations in hand functioning. (Id.)
Third, as to Roche's neck pain, ALJ Stacchini wrote that Dr. Shah's examination
findings in January, February, June, August and December 2015 "did not establish abnormalities,
consistent with Dr. Kaci's findings of February 2014." (Id.) Dr. Kaci "observed symmetrical
reflexes and no motor or sensory abnormalities" were reported in Roche's physical examinations
with Dr. Shah. (Id.) ALJ Stacchini nevertheless acknowledged that the laboratory findings
regarding Roche's cervical spine supported her neck pain allegations, but did "not support the
intensity of her alleged symptoms or radicular pain in the upper extremity." (Id.) Dr. Kaci wrote
that Roche had full range of motion in her neck, joints and upper extremities including her
shoulders, elbows, forearms and wrists bilaterally. (Id.) However, Dr. Kaci observed decreased
strength in Roche's upper extremities rated a 4/5, which supported some decreased capacity to exert
force. (Id.) ALJ Stacchini addressed this limitation by limiting Roche to a range of sedentary work.
(Id.)
Fourth, ALJ Stacchini noted that Roche claimed that she could not lift anything
heavier than ten pounds in her Appeals Disability Report, which conflicted with Dr. Shah's opinion
that Roche could only occasionally lift up to five pounds. (Id.) Dr. Shah's opinion on Roche's
ability to lift was given little weight as Roche "admitted she could lift heavier objects, equivalent
to sedentary work." (See pages 16-17 above.)
Fifth, ALJ Stacchini addressed Roche's alleged degenerative changes in her lower

42
extremities, and limitations climbing stairs, kneeling and squatting. (See page 17 above.) ALJ
Stacchini stated that Dr. Kaci's examination did not reveal joint instability, redness, heat, swelling
or effusion, and Roche had full range of motion in her lower extremity joints. (Id.) ALJ Stacchini
wrote that aside from positive straight leg raise tests bilaterally at 45 degrees on the right and 30
degrees on the left, "the evidence did not support a sensory deficit." (See pages 17-18 above.)
Roche had some decrease in strength bilaterally, which was consistent with Dr. Shah's findings, but
Dr. Shah reported a positive straight leg raise test at 50 degrees bilaterally "with greater functionality
as compared to Dr. Kaci's findings." (See page 18 above.) Thus, considering Dr. Kaci and Dr.
Shah's findings, ALJ Stacchini found that Roche could occasionally climb stairs and ramps, and
never climb ladders or scaffolds, due to the degenerative changes in her lower extremities. (Id.)
Sixth, ALJ Stacchini found that Dr. Kaci's conclusion that Roche had marked
limitations bending was inconsistent with the evidence. (Id.) Dr. Kaci observed that Roche had full
lateral flexion bilaterally, with limited forward flexion and extension at 30 degrees. (Id.) Dr. Shah
reported no neurological deficits and described Roche as alert and in no acute distress, and in
September 2015, Dr. Yassari reported that Roche's symptoms had improved. (Id.) Thus, ALJ
Stacchini wrote that the record did not support a marked bending limitation, and that Roche could
occasionally stoop. (Id.)
ALJ Stacchini also explained why he gave Dr. Shah's "medical source statement with
significant restrictions . . . little weight." (Id.) ALJ Stacchini wrote that Dr. Shah opined in
December 2015 that Roche was limited to thirty minutes of sitting, and between thirty minutes and
an hour of standing and/or walking, before needing to change positions. (Id.) However, ALJ
Stacchini gave "little weight" to this portion of Dr. Shah's opinion because it was not supported by
Dr. Shah's own examination findings or Dr. Siddique's June 2015 examination. (Id.) Roche

43
repeatedly had "symmetrical deep tendon reflexes," and ALJ Stacchini found that "the extreme
findings" were inconsistent with other evidence showing that Roche was "independent with her
activities of daily living" and responded well to treatment. (Id.)
ALJ Stacchini noted that Roche's medical records following her spinal cord
stimulator implant showed her symptoms were improving. While Roche's "laboratory studies
support[ed] the presence of degenerative changes" attributable to Roche's symptoms, such as her
September 2014 MRI, she underwent the spinal cord stimulator procedure in August 2015 and,
"[t]hereafter, the evidence reveal[ed] that she was responsive to treatment." (See page 17 above.)
Roche reported "that she could ambulate and perform her activities of daily living significantly
better," and "had a decrease in the use of narcotic pain medication." (Id.) "By October 2015, a
physical examination, post-operation, revealed that [Roche] had no pain, was doing very well and
was happy." (Id.)
ALJ Stacchini's findings are supported by substantial evidence in Roche's treatment
records. As detailed more thoroughly above (see pages 36-39 above), Dr. Kaci's report included
multiple normal physical findings, as did Dr. Shah's records. Moreover, following her spinal cord
stimulator procedure, Roche had a post-operative physical examination during which she reported
that she was "doing very well," was "very happy" and was in no pain. (See page 13 above; see also
Dkt. No. 18: Roche Br. at 20 (Roche's "condition changed over time with regard to pain; for the
worse at the beginning; for the better after the implant.").) Although Roche claims that ALJ
Stacchini committed reversible error by focusing on Roche's activities of daily living "to discount
Dr. Shah's opinions and Roche's statements regarding the pain she experiences" (Roche Br. at 19),
ALJ Stacchini's decision was far more comprehensive and relied on the objective medical evidence
from Drs. Kaci, Shah, Gitkind and Yassari.

44
For the same reasons, ALJ Stacchini's rejection of Dr. Shah's opinion was not
improper. (Roche Br. at 20-21.) ALJ Stacchini provided good reasons, supported by citations to
the record, for rejecting Dr. Shah's opinion, namely that it was inconsistent with his own records and
other medical evidence indicating that Roche responded well to treatment. See, e.g., Micheli v.
Astrue, 501 F. App'x 26, 28 (2d Cir. 2012) ("A physician's opinions are given less weight when his
opinions are internally inconsistent."); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)
("Although the treating physician rule generally requires deference to the medical opinion of a
claimant's treating physician, the opinion of the treating physician is not afforded controlling weight
where, as here, the treating physician issued opinions that are not consistent with other substantial
evidence in the record, such as the opinions of other medical experts." (citation omitted)).21/
ALJ Stacchini supported his RFC determination with substantial evidence in Roche's
treatment records.22/

21/

Moreover, in reaching his determination, ALJ Stacchini did not "pick and choose" only the
evidence favorable to his RFC determination. See, e.g., Clarke v. Colvin, 15 Civ. 354, 2017
WL 1215362 at *9 (S.D.N.Y. Apr. 3, 2017) ("'While the ALJ had cast doubt upon the
findings of [treating physician Dr. Naco], as discussed above, he generally accepted [Dr.
Reddy's] findings without explaining why they were more valid. This suggests that the ALJ
selectively relied on evidence that weighed against a finding of a disability. This is
improper—an ALJ may not "pick and choose evidence which favors a finding that the
claimant is not disabled.'""). For example, ALJ Stacchini discussed Roche's MRI studies
that indicated degenerative changes and nerve root compression, Dr. Kaci's observation of
decreased strength in Roche's upper extremities, and the positive straight leg raise tests noted
by Drs. Kaci and Shah, and weighed these records against the backdrop of Roche's full
medical history.

22/

Given this determination, the Court does not address Roche's argument that the ALJ relied
on flawed testimony from the vocational expert. (Roche Br. at 21 ("As a result of
improperly weighing Dr[.] Shah's opinion the ALJ relied on vocational testimony that cannot
be seen as substantial evidence as it does not properly describe Roche's limitations.").)

45
E.

Roche Did Not Have The Ability to Perform Her Past Relevant Work
The fourth step of the five-step analysis asks whether Roche had the residual

functional capacity to perform her past relevant work. (See page 23 above.) Roche previously
worked as a home health aide, security guard and restaurant supervisor. (See page 2 above.) ALJ
Stacchini concluded that Roche did not have the ability to perform her past relevant work. (See page
19 above.) Because this finding favors Roche, the Court proceeds to the fifth and final step of the
analysis.
F.

There Are Jobs In Substantial Numbers In The Economy That Roche Can
Perform
In the fifth step, the burden shifts to the Commissioner, "who must produce evidence

to show the existence of alternative substantial gainful work which exists in the national economy
and which the claimant could perform, considering not only his physical capability, but as well his
age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir.
1980).23/
In meeting his burden under the fifth step, the Commissioner:
may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404,
Subpart P, App. 2, commonly referred to as "the Grid". The Grid takes into account
the claimant's residual functional capacity in conjunction with the claimant's age,
education and work experience. Based on these factors, the Grid indicates whether
the claimant can engage in any other substantial gainful work which exists in the
national economy. Generally the result listed in the Grid is dispositive on the issue
of disability.
Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996) (fn. omitted); see, e.g., Heckler v.

23/

See, e.g., Roma v. Astrue, 468 F. App'x 16, 20 (2d Cir. 2012); Arruda v. Comm'r of Soc.
Sec., 363 F. App'x 93, 95 (2d Cir. 2010); Butts v. Barnhart, 388 F.3d 377, 381 (2d Cir.
2004), amended on other grounds, 416 F.3d 101 (2d Cir. 2005); Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir. 1999).

46
Campbell, 461 U.S. 458, 461-62, 465-68, 103 S. Ct. 1952, 1954-55, 1956-58 (1983) (upholding the
promulgation of the Grid); Roma v. Astrue, 468 F. App'x at 20-21; Martin v. Astrue, 337 F. App'x
87, 90 (2d Cir. 2009); Rosa v. Callahan, 168 F.3d at 78; Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986).
However, "relying solely on the Grids is inappropriate when nonexertional limitations
'significantly diminish' plaintiff's ability to work so that the Grids do not particularly address
plaintiff's limitations." Vargas v. Astrue, 10 Civ. 6306, 2011 WL 2946371 at *13 (S.D.N.Y. July
20, 2011); see also, e.g., Travers v. Astrue, 10 Civ. 8228, 2011 WL 5314402 at *10 (S.D.N.Y. Nov.
2, 2011) (Peck, M.J.), R. & R. adopted, 2013 WL 1955686 (S.D.N.Y. May 13, 2013); Lomax v.
Comm'r of Soc. Sec., No. 09-CV-1451, 2011 WL 2359360 at *3 (E.D.N.Y. June 6, 2011) ("Sole
reliance on the grids is inappropriate, however, where a claimant's nonexertional impairments
'significantly limit the range of work permitted by his exertional limitations.'").
Rather, where the claimant's nonexertional limitations "'significantly limit the range
of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational
expert." Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d at
605); see also, e.g., Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) ("We have explained that the
ALJ cannot rely on the Grids if a non-exertional impairment has any more than a 'negligible' impact
on a claimant's ability to perform the full range of work, and instead must obtain the testimony of
a vocational expert."); Rosa v. Callahan, 168 F.3d at 82 ("Where significant nonexertional
impairments are present at the fifth step in the disability analysis, however, 'application of the grids
is inappropriate.' Instead, the Commissioner 'must introduce the testimony of a vocational expert
(or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.'"
(quoting & citing Bapp v. Bowen, 802 F.2d at 603, 605-06)); Suarez v. Comm'r of Soc. Sec., No.

47
09-CV-338, 2010 WL 3322536 at *9 (E.D.N.Y. Aug. 20, 2010) ("If a claimant has nonexertional
limitations that 'significantly limit the range of work permitted by his exertional limitations,' the ALJ
is required to consult with a vocational expert." (quoting Zabala v. Astrue, 595 F.3d at 411)).
ALJ Stacchini properly relied on the testimony of vocational expert Robert Baker,
who testified that a person with Roche's RFC could not perform her past work, but could perform
the jobs of addresser, document preparer, and cutter and paster. (See page 5 above.) These jobs are
sedentary, unskilled positions, and Baker testified that they all exist in significant numbers in the
national economy. (Id.) ALJ Stacchini relied upon Baker's testimony in reaching his step five
determination when he specifically referred to those jobs in his findings. (See page 20 above.)
Accordingly, ALJ Stacchini's decision at step five was supported by substantial evidence. See, e.g.,
Rodriguez v. Berryhill, 16 Civ. 8752, 2017 WL 3701220 at *20 (S.D.N.Y. Aug. 28, 2017) (Peck,
M.J.).
CONCLUSION
For the reasons set forth above, the Commissioner's determination that Roche was
not disabled within the meaning of the Social Security Act during the period from October 28, 2013
through March 24, 2016 is supported by substantial evidence. Accordingly, the Commissioner's
motion for judgment on the pleadings (Dkt. No. 21) is GRANTED and Roche's motion (Dkt. No.
17) is DENIED.
Dated:

New York, New York
January 25, 2018

________________________________
Andrew J. Peck
United States Magistrate Judge
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