Burpoe v. Berryhill

Filing 19

OPINION AND ORDER: Accordingly, for all the foregoing reasons, the Commissioner's motion for judgment on the pleadings is granted and plaintiff's motion is denied. The Clerk of the Court is respectfully requested to mark D.I. 12 and D.I. 15 closed, and respectfully requested to close the case. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 7/24/2019) (jca) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x

JEANETTE BURPOE,
Plaintiff,
-against-

18 Civ. 3168

(HBP)

OPINION
AND ORDER

NANCY A. BERRYHILL,
Commissioner of Social Security
Defendant.
-----------------------------------x

PITMAN, United States Magistrate Judge:

I.

Introduction

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

All parties have con-

sented to my exercising plenary jurisdiction pursuant to 28
U.S.C. § 636(c).

Plaintiff and the Commissioner have both moved

for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure (Docket Item ("D.I.") 12, 15).
For the reasons set forth below, the Commissioner's motion is
granted and plaintiff's motion is denied.

II.

Facts 1
A.

Procedural Background
On July 16, 2014, plaintiff filed an application for

DIB, alleging that she became disabled on February 7, 2014 due to
torn ligaments in her left thumb and right wrist, surgery on her
left hand, pending surgery on her right hand, pain in her lower
back and neck and limited motion with pain in her left knee (Tr.
98, 192).

After her application for benefits was initially

denied on October 10, 2014, she requested, and was granted, a
hearing before an administrative law judge ( "ALJ")

(Tr. 97, 105,

110-11, 126-27).
On October 27, 2016, plaintiff and her attorney appeared before ALJ Vincent M. Cascio for a hearing at which
plaintiff and a vocational expert testified (Tr. 70-96).

On

April 7, 2017, the ALJ issued his decision finding that plaintiff
was not disabled (Tr. 51-63).

This decision became the final

decision of the Commissioner on February 20, 2018 when the
Appeals Council denied plaintiff's request for review (Tr. 1-4).
Plaintiff timely commenced this action on April 11, 2018 seeking

1 I recite only those facts relevant to my resolution of the
pending motions.
The administrative record that the Commissioner
filed pursuant to 42 U.S.C. § 405(g) (see Notice of Filing for
Administrative Record, dated July 16, 2018 (D.I. 8) ("Tr.") more
fully sets out plaintiff's medical history.

2

review of the Commissioner's decision (Complaint, dated Apr. 11,
2018

( D. I. 1)

B.

("Comp 1. ") ) .

Social Background
Plaintiff was born on February 4, 1968 and was 46 years

old at the time she filed her application for DIB (Tr. 192).
Plaintiff is married and lives with her husband in a house in
Middletown, New York (Tr. 74, 228).

Plaintiff completed tenth

grade, but later earned her GED (Tr. 75).
Plaintiff worked as a personal aid for mentally ill
individuals from February 2000 until February 7, 2014 -- the
alleged onset date of her disability (Tr. 77, 209).

Plaintiff

stated in her "Disability Report," dated July 17, 2014, that this
position required her to assist patients with all aspects of
daily living, such as grocery shopping, cleaning, laundry, taking
out the garbage and moving furniture

(Tr. 210).

She further

stated that this position frequently required her to stand, walk,
stoop, kneel, crouch, reach, handle large objects and lift
objects that weighed 10 pounds or more (Tr. 210).

Plaintiff

testified that she stopped working due to a motor vehicle accident on February 7, 2014

(Tr. 75).

Plaintiff was driving home

from work when she was hit by another vehicle on the rear righthand side of her vehicle while stopped at a stop sign (Tr. 273)
Plaintiff reported that she was not injured from this impact;

3

however, when she got out of her car, she slipped on ice and fell
on both of her hands and has been in significant pain ever since
(Tr. 273).
In her "Function Report", dated August 12, 2014,
plaintiff stated that her daily activities included taking care
of her dog (and occasionally her grandchild) and having dinner
with family and friends; plaintiff claimed that her other social
activities were limited by her ongoing pain (Tr. 229, 233).
Plaintiff stated that she was able to dress and bathe herself,
but that she had difficulty buttoning her shirts, blow drying her
hair and shaving her legs because of the pain in her hands
229-30).

(Tr.

Plaintiff further stated that she was able to clean, do

laundry, drive, go outside unassisted, shop for groceries, pay
bills and handle her bank accounts

(Tr. 231-32).

However, at her

hearing, plaintiff testified that she needed assistance from her
husband to carry out most daily activities, such as laundry,
dressing herself, cooking and running errands
C.

(Tr. 82-83).

Medical Background
1.

Medical Records for
the Relevant Time Period
a.

Dr. Ronald Israelski

Plaintiff visited Dr. Ronald Israelski, an orthopedic
surgeon, five times between February 10, 2014 and May 12, 2014
4

(Tr. 277-83).

While no treatment notes exist from these visits,

Dr. Israelski diagnosed plaintiff with a hand sprain and a wrist
contusion (Tr. 277-83).

He also ordered an MRI of plaintiff's

left thumb on February 21, 2014, which revealed no fractures or
abnormalities (Tr. 284-85).
b.

Dr. Robert Strauch

Plaintiff visited Dr. Robert Strauch, an orthopedist,
on March 20, 2014 complaining of sharp pain in her left thumb and
right wrist that she described as a seven out of ten in severity
(Tr. 269, 272).

Plaintiff exhibited full range of motion in her

shoulders and elbows, but her right wrist was limited to 60%
rotation due to pain (Tr. 273).

Dr. Strauch noted some tender-

ness over her left thumb metacarpophalangeal ("MP")

joint, 2 but

that she otherwise exhibited normal sensations and motor function
(Tr. 273).

Dr. Strauch opined that plaintiff likely had a right

triangular fibrocartilage complex ("TFCC") tear 3 and recommended

2

The MP joint, or knuckle, is where the finger bones meet
the hand bones. MP Joint Arthritis, American Society for Surgery
of the Hand, available at, www.assh.org/handcare/hand-armconditions/MP-joint-arthritis (last visited July 10, 2019).
3

A TFCC tear refers to tears or fraying in the tissues that
connect the ulna, one of the two bones in the forearm, to other
parts of the wrist.
This tear often occurs from a fall onto the
wrist or multiple repetitive twisting injuries.
It can also
result from a developmental difference in the length of the ulna
compared with the adjacent radius in the forearm.
Ulnar Wrist
Pain: Possible Causes, The Cleveland Clinic, available at,
(continued ... )
5

that plaintiff continue with physical therapy before any surgical
options were considered (Tr. 273-74).
c.

Crystal Run Healthcare

Plaintiff visited multiple doctors at Crystal Run
Healthcare ("CRH") between May 6, 2014 through November 14, 2016
for various orthopedic issues in her hands, wrists,

knees, back

and left shoulder.
Plaintiff visited Dr. Samir Sodha, an orthopedic
surgeon, on May 6, 2014

(Tr. 303).

Plaintiff exhibited full

range of motion in her elbows, shoulders, forearms, wrists and
fingers, but reported pain in her wrist with extension (Tr. 30304) .

She also exhibited full muscle strength and normal sensa-

tions and reflexes

(Tr. 304).

Her Tinel 4 and other related

carpal tunnel tests were negative (Tr. 304).

Dr. Sodha reviewed

plaintiff's February 21, 2014 MRI and agreed that it revealed no
fractures, but opined that there was some joint irregularity and

3

( • • • continued)
https://myclevelandclinic.org/health/symptoms/21035-ulnar-wristpain/possible-causes (last visited July 10, 2019)

4

A Tinel test is a method to test for carpal tunnel
syndrome. A positive test is noted when the patient experiences
a tingling sensation in the distal end of a limb when percussion,
or tapping, is made over the site of a divided nerve in the
wrist. A tingling sensation indicates that the nerve is trapped
in the tarsal tunnel and can be a sign of carpal tunnel syndrome.
Tinel's Test, Physiopedia, available at, https://www.physiopedia.com/Tinel's_Test (last visited July 10, 2019).
6

a TFCC tear (Tr. 304).

Dr. Sodha diagnosed plaintiff with joint

and hand pain and recommended surgery (Tr. 304-05).

Dr. Sodha performed a left thumb interphalangeal joint
arthrodesis 5 procedure on plaintiff on June 9, 2014

(Tr. 357-59).

Plaintiff was discharged the same day and Dr. Sodha continued to
diagnose her with left thumb pain (Tr. 343).
Plaintiff had a post-operative visit with Dr. Sodha on
June 19, 2014 and reported that she had some incision discomfort,
but that her overall pain had improved (Tr. 301).

Dr. Sodha

noted that plaintiff was recovering well and prescribed her pain
medication (Tr. 301-02).
Plaintiff visited Dr. Sodha again on July 2, 2014
299).

(Tr.

There are no treatment notes from that visit, but plain-

tiff reported that her pain was a four out of ten in severity
(Tr. 299).
Plaintiff visited Dr. Sodha again on July 24, 2014 and
reported that her pain was a five out of ten (Tr. 297-98).
Plaintiff reported some sensitivity at her incision site, but
exhibited full range of motion in her fingers and wrists

5

(Tr.

Thumb interphalangeal joint arthrodesis procedure is also
known as "joint fusion" surgery, a minimally invasive procedure
in which the injured joint is fused with the joint below it to
stabilize and straighten the joint to relieve pain. Arthritis of
the Wrist and Hand: Management and Treatment, The Cleveland
Clinic, available at, https://myclevelandclinic.org/health/
diseases/7082-arthritis-of-the-wrist-and-hand/management-andtreatment (last visited July 10, 2019).
7

297) .

Plaintiff also underwent an X-Ray of her left thumb at

this visit, which revealed no abnormalities

(Tr. 306)

Dr. Sodha

diagnosed plaintiff with left thumb pain (Tr. 298).
Plaintiff visited Dr. Rocco Bassora, an orthopedic
surgeon, on August 6, 2014 and reported left knee pain that she
claimed was from her February 7, 2014 fall

(Tr. 444).

Plaintiff

exhibited full range of motion, normal sensations and reflexes
and full muscle strength (Tr. 444-45).

Plaintiff's straight leg

raising tests 6 were negative bilaterally, but her McMurray's
test 7 was positive (Tr. 445).

Dr. Bassora ordered an MRI which

plaintiff underwent on August 11, 2014

(Tr. 442).

This MRI

6

The straight leg raising test is used to assess patients
who complain of back pain that radiates down one leg for nerve
root irritation.
To conduct a straight leg raising test, the
patient must first lie on his or her back and completely relax
the affected leg.
Cupping the heel of the foot of that leg, the
examiner will gently raise the leg.
If the patient experiences
pain when his or her leg is elevated between 30 and 60 degrees,
the test is positive, indicating that root irritation is likely;
if there is no sensitivity in that range, the test is negative
and the patient is unlikely to be suffering from root irritation.
A Practical Guide to Clinical Medicine: Musculo-Skeletal
Examination, University of California, San Diego School of
Medicine, available at https://meded.ucsd.edu/clincalmed/
joints6.htm (last visited July 10, 2019).
7

The McMurray's test is used to determine the presence of a
meniscus tear within the knee.
McMurray's Test, Physiopedia,
available at, https://www.physio-pedia.com/Tinel's_Test (last
visited July 10, 2019)
8

reve~led that plaintiff had a medial meniscus tears in her left
knee (Tr. 442).
Plaintiff followed up with Dr. Bassora two days later
on August 13, 2014

(Tr. 440).

Dr. Bassora agreed that her MRI

showed that she had a medial meniscus tear in her left knee and
recommended surgery to repair the tear (Tr. 441).
Plaintiff visited Dr. Sodha on August 21, 2014 and
reported that the pain in her left thumb was improving with
occupational therapy, but that she was having some difficulty
gripping with her left hand (Tr. 296).

Plaintiff exhibited full

range of motion in her fingers and wrists and reported less
tenderness over her incision area (Tr. 296).

Dr. Sodha opined

that plaintiff had no restrictions and that she should continue
therapy (Tr. 296).
Dr. Bassora performed arthroscopic left knee surgery on
plaintiff on August 26, 2014

(Tr. 367).

During the procedure,

Dr. Bassora confirmed that plaintiff had a medial meniscus tear
and repaired it (Tr. 368).

Plaintiff followed up with Dr.

Bassora a few days later on September 8, 2014 and reported mild
discomfort in her left knee, but no swelling, redness or diffi-

sA torn meniscus is a tear in the cartilage of the knee.
It
is one of the most common knee injuries and can be caused by any
activity involving forcefully twisting or rotating the knee.
Treatments can range from rest and ice to surgical repairs.
Torn
Meniscus, Mayo Clinic, available at, https://www.mayoclinic.org/
diseases-conditions/torn-meniscus/symptoms-causes/syc-20354818
(last visited July 10, 2019).
9

culty walking (Tr. 437).

Dr. Bassora noted that plaintiff's

sensations and reflexes were normal and that she was recovering
well from surgery (Tr. 438).
Plaintiff visited Dr. Sodha again on October 3, 2014
and reported that her left thumb pain was improving with occupational therapy and that she had more movement in her hand, but
that she was still having difficulty gripping and was experiencing tightness and stiffness (Tr. 295).

Plaintiff exhibited full

range of motion in her fingers and wrists and reported less
tenderness over her incision area (Tr. 295).

Dr. Sodha opined

that plaintiff had no restrictions and that she should continue
therapy (Tr. 295).
Plaintiff underwent an electromyogram test
CRH on November 14, 2014

(Tr. 362-63).

("EMG")

9

at

It is unclear from the

record which physician ordered this test, but it revealed that
plaintiff had radiculopathy 10 in her lumbar spine 11 without neu

9

An electromyogram test is an
records extracellular activity of
during voluntary contractions and
See Dorland's Illustrated Medical
("Dorland' s").

electrodiagnostic test that
skeletal muscles while at rest,
electrical stimulation.
See
Dictionary, 602 (32nd ed. 2012)

10

Radiculopathy is any disease of the nerve roots commonly
caused by inflammation or impingement of the nerve.
Dorland's at
1571.
11

The lumbar region of the spine is located below the
thoracic region and is made up of vertebrae Ll through LS.
Anatomy of the Human Spine, Mayfield Brain & Spine, available at
https://www.mayfieldclinic.com/PE-AnatSpine.htm (last visited
(continued ... )
10

ropathy 12 or myopathy 13 (Tr. 363).

Plaintiff also underwent an

MRI of her lumbar spine on November 18, 2014, which revealed
minor disc bulging at L3-L4 and LS-Sl with mild degenerative
changes, but no central canal stenosis 14 (Tr. 364).
Plaintiff visited Dr. Sodha again on February 20, 2015
and reported increased pain in her left thumb (Tr. 414).
Plaintiff underwent an X-ray during this examination, which
revealed good alignment of the thumb (Tr. 414).

Plaintiff

exhibited full range of motion in her fingers and wrists
414) .

(Tr.

Dr. Sodha opined that plaintiff had no restrictions and

that she should continue therapy (Tr. 414).
Plaintiff visited Dr. Thomas Booker, a pain management
physician, on February 26, 2015 and reported pain in her neck and
back (Tr. 370).

Plaintiff described this pain as an eight out of

ten and reported that it decreased with medication and increased
with prolonged sitting or lying down (Tr. 371).

Plaintiff was

11

( • • • continued)
July 10, 2019).

12

Neuropathy refers to a functional disturbance or
pathological change in the peripheral nervous system.
Dorland's
at 1268.
13

Myopathy is any disease of the muscle.

14

Dorland's at 1224.

Spinal stenosis is the narrowing of spaces within the
spinal cord, which can put pressure on nerves.
See Spinal
Stenosis Overview, Mayo Clinic, available at,
https://www.mayoclinic.org/diseases-conditions/spinalstenosis/symptoms-causes/syc-20352961 (last visited July 10,
2019) .
11

alert and oriented during her examination and presented with a
normal gait 15 (Tr. 372).

Plaintiff exhibited a slightly de-

creased range of motion in her spine, and her straight leg
raising tests were negative bilaterally (Tr. 372).

Dr. Booker

diagnosed plaintiff with lumbar radiculopathy and recommended
that she continue with her pain medication (Tr. 371).
Plaintiff visited Dr. Adrienne Saloman, a neurologist,
on March 9, 2015 and reported back pain that was radiating down
her left leg that she described as a four out of ten (Tr. 37576).

Plaintiff was alert and oriented during her examination and

exhibited full muscle strength, except for some weakness in her
left leg and left grip (Tr. 376).
were normal (Tr. 376).

Her sensations and reflexes

Dr. Saloman diagnosed plaintiff with

lumbar radiculopathy and recommended continued physical therapy
(Tr. 376).
Plaintiff visited Dr. Syed A. Husain, a pain management
specialist, on April 8, 2015 and reported back pain that was
radiating down her left leg that she described as a six out of
ten (Tr. 391).

Plaintiff further reported that increased,

prolonged activity increased her pain and that physical therapy
had provided her with mild pain relief (Tr. 391).

Plaintiff's

straight leg raising tests were negative bilaterally, but she

15 Gait

refers to the manner and style of walking.

at 753.
12

Dorland's

exhibited some decreased range of motion in her lumbar spine and
some tenderness in her hips with movement bilaterally (Tr. 394)
Dr. Husain diagnosed plaintiff with sciatica 16 due to displacement of a lumbar disc and recommended steroid injections (Tr.
395) .

Plaintiff received an epidural steroid injection at L5-Sl

on May 15, 2015 (Tr. 381).
Plaintiff followed up with Dr. Husain on August 18,
2015 and reported that her previous injection provided almost
complete pain relief for approximately six weeks and she wanted
to repeat the procedure (Tr. 385).

Plaintiff's straight leg

raising tests were negative bilaterally, but she exhibited some
decreased range of motion in her lumbar spine and some tenderness
in her hips with movement bilaterally (Tr. 388-89).

Dr. Husain

continued to diagnose plaintiff with sciatica due to displacement
of a lumbar disc and recommended continued steroid injections
(Tr. 389).
Plaintiff visited Dr. Sodha on October 6, 2015 and
reported continued pain and weakness in her left thumb (Tr. 410)
Plaintiff exhibited a full range of motion in her fingers and

16

Sciatica refers to pain that radiates along the path of
the sciatic nerve, which branches from the lower back through the
hips and buttocks and down each leg.
Sciatica most commonly
occurs when a herniated disk, bone spur on the spine or narrowing
of the spine compresses part of the nerve.
This causes
inflammation, pain and often some numbness in the affected leg.
See Sciatica, Mayo Clinic, available at,
https://www.mayoclinic.org/diseases-conditions/sciatica/symptomscauses/syc-20377435 (last visited July 10, 2019).
13

wrists, but some weakness in her left thumb (Tr. 411).

Dr. Sodha

recommended continued occupational therapy and anti-inflammatory
medication (Tr. 411).
Plaintiff visited Dr. Sodha again on January 19, 2016
and reported continuing left thumb pain (Tr. 404).

Plaintiff

continued to exhibit a full range of motion in her fingers and
wrists, but some weakness in her left thumb (Tr. 405).

Dr. Sodha

recommended continued occupational therapy and anti-inflammatory
medication (Tr. 405).
Plaintiff visited Dr. Sodha again on March 29, 2016 and
reported continuing left thumb pain (Tr. 398).

Plaintiff exhib-

ited a full range of motion in her fingers and wrists, but some
weakness in her left thumb (Tr. 398).

Dr. Sodha diagnosed

plaintiff with post-traumatic osteoarthritis 17 of the first
carpometacarpal joint 18 of the left hand and recommended an MRI
of plaintiff's left wrist (Tr. 399).

Dr. Sodha also wrote a

letter asking for plaintiff to be excused from work until her
next appointment (Tr. 401).

Plaintiff underwent this MRI of her

17

Post-traumatic osteoarthritis is an inflammation of the
joint that occurs due to a physical injury.
Post-Traumatic
Arthritis, The Cleveland Clinic, available at,
https://myclevelandclinic.org/health/diseases/14616-posttraumatic-arthritis (last visited July 10, 2019).
18

First carpometacarpal joint is the joint that connects the
thumb to the hand.
Thumb Arthritis, Mayo Clinic, available at,
https://www.mayoclinic.org/diseases-conditions/thumbarthritis/symptoms-causes/syc-20378339 (last visited July 10,
2019) .
14

left wrist on May 10, 2016; it revealed no fractures,

joint

effusion 19 or lesions (Tr. 422) .

Plaintiff visited Dr. Bassora on September 29, 2016 and
reported pain in her left shoulder (Tr. 485).

Plaintiff exhib-

ited a normal range of motion in her left shoulder, but her
Neer' s impingment sign 20 and Hawkins test 21 were positive (Tr.
48 6) .

Dr. Bassora diagnosed plaintiff with left shoulder

bursi tis 22 and ordered an MRI

(Tr. 4 8 6) .

Plaintiff underwent

19

Joint effusion refers to an abnormally large amount of
fluid in the joint.
Joint Aspiration, The Cleveland Clinic,
available at, https://myclevelandclinic.org/health/
treatments/14512-joint-aspiration (last visited July 10, 2019)
20

The Neer's impingement test is also commonly used to test
rotator cuff shoulder impingement.
The examiner stabilizes the
patient's scapula with one hand, while internally rotating and
passively flexing the arm.
If the patient reports pain in this
position, then the test is positive.
Neers Test, Physiopedia,
available at, https://www.physio-pedia.com/Neers Test (last
visited July 10, 2019).
21

The Hawkin's impingement test is commonly used to test
rotator cuff shoulder impingement.
The examiner places the
patient's arm shoulder in 90 degrees of shoulder flexion with the
elbow flexed to 90 degrees and then internally rotates the arm.
The test is considered to be positive if the patient experiences
pain with internal rotation.
Hawkins/Kennedy Impingement Test of
the Shoulder, Physiopedia, available at, https://www.physiopedia.com/Hawkins_/_Kennedy_Impingement_Test_of_the_Shoulder
(last visited July 10, 2019)
22

The subacromial bursa lies in the space between the
rotator cuff and the shoulder blade that hangs over the shoulder
tendons.
Bursities occurs when the bursa becomes inflamed.
Shoulder Tendinitis, Cleveland Clinic, available at,
https://my.clevelandclinic.org/health/diseases/13202-shouldertendinitis (last visited July 10, 2019)
15

this MRI of her left shoulder on September 29, 2016; it revealed
no abnormalities (Tr. 489).
Plaintiff visited Dr. Sodha on October 25, 2016 and
reported pain in both hands and wrists

(Tr. 424).

Plaintiff was

alert and oriented during her examination and exhibited a full
range of motion without pain in her elbows and shoulders
426) .

(Tr.

Plaintiff reported some pain with wrist and forearm

extension (Tr. 426).

She exhibited full finger flexion and

extension, and her muscle strength, sensations and reflexes were
normal, except for some weakness noted in her left thumb (Tr.
426-27).

Dr. Sodha diagnosed plaintiff with hand muscle weak-

ness, post-traumatic osteoarthritis of the first carpometacarpal
joint and a TFCC tear in her right wrist

(Tr. 427).

recommended surgery on plaintiff's right wrist

Dr. Sodha

(Tr. 427).

Dr. Sodha also filled out a medical source statement
for plaintiff on October 25, 2016 and opined that plaintiff was
unable to lift or carry any objects of any weight

(Tr. 429).

However, he went on to opine that plaintiff could occasionally
reach and finger objects with both hands and that she could
occasionally handle objects with her right hand (Tr. 431).

Dr.

Sodha further opined that plaintiff was able to shop, travel,
walk, climb stairs at a reasonable pace with use of a single hand
rail, prepare simple meals and take care of her personal hygiene
(Tr. 434).

16

Plaintiff visited Dr. Booker on November 14, 2016 and
reported neck and back pain that radiated into both legs

(Tr.

Plaintiff presented with a normal gait and exhibited full

492).

range of motion in both legs

(Tr. 493).

Plaintiff's straight leg

raising tests were negative bilaterally, and her sensations were
normal (Tr. 493).

Dr. Booker ordered an MRI of plaintiff's

lumbar spine (Tr. 494).
d.

Dr. Gilbert Jenouri

Plaintiff underwent an orthopedic independent evaluation with Dr. Gilbert Jenouri on September 19, 2014

(Tr. 291).

Plaintiff reported left thumb, left knee, right wrist, right
thumb, neck and back pain during this evaluation (Tr. 291).
Plaintiff stated that she was able to dress and bathe herself,
but needed assistance with cleaning, shopping and laundry (Tr.
292).

Dr. Jenouri noted that plaintiff was able to rise from the

examination table without assistance, but presented with an
antalgic gait 23 and had difficulty walking on her heels and toes
(Tr. 292).
Plaintiff exhibited full hand and finger dexterity,
full range of motion in her hands and full grip strength; however, she was unable to flex her left thumb due to her recent

23

Antalgic gait refers to a manner of walking in which a
limp is adopted in order to avoid pain on weight bearing
structures.
See Dorland's at 753.
17

surgery (Tr. 292-93).

Plaintiff's straight leg raising tests

were positive and she exhibited some limited range of motion in
her thoracic 24 and lumbar spine

(Tr. 293).

muscle strength and sensations were normal,

Plaintiff's reflexes,
except for some

tenderness and decreased sensation over her left knee
Dr.
left thumb,

Jenouri diagnosed plaintiff with neck,

left knee,

(Tr.

293).

lower back,

right wrist and right thumb pain, and with

bilateral lower extremity radiculopathy (Tr. 294).

Dr. Jenouri

opined that plaintiff's condition was stable and she had moderate
restrictions with bending, climbing stairs,
walking,

lifting, carrying and

standing or sitting for long periods of time

e.

Pamela Baltsas,

(Tr. 294).

D.C.

Plaintiff visited Pamela Baltsas, a licensed
chiropractor, for an independent evaluation on October 15, 2014
(Tr.

449).

Plaintiff reported neck, back,

left knee pain during this evaluation (Tr.

shoulder, hand and
451).

Plaintiff

exhibited a slightly decreased range of motion in her cervical 25
and lumbar spine

(Tr.

452).

Plaintiff exhibited full muscle

strength and normal reflexes and sensations

(Tr.

452-53).

24

The thoracic region of the spine is located below the
cervical region and consists of vertebrae Tl through T12.
Anatomy of the Human Spine, supra.
25
The cervical region of the spine is located closest to the
skull and is made up of vertebrae Cl through C7.
Anatomy of the
Human Spine, supra.

18

Plaintiff's straight leg raising tests were negative bilaterally
from the seated position, but positive bilaterally from the
supine position (Tr. 452).
Baltsas diagnosed plaintiff with resolving cervical,
thoracic and lumbar spine sprains and opined that plaintiff could
return to work if she refrained from repetitive overhead
activities,

lifting objects over 25 pounds and prolonged walking,

standing or sitting (Tr.
chiropractic treatment
f.

453).

Baltsas recommended six weeks of

(Tr. 453).

Dr. Edward L. Mills

Plaintiff visited Dr. Edward L. Mills, an orthopedic
surgeon, for an independent medical examination on October 16,
2014

(Tr. 473).

Plaintiff reported neck, back, wrist,

left thumb pain during this examination (Tr.

474).

knee and

Plaintiff

further reported that she was unable to stand for more than ten
minutes, unable to sit in one position for more than five minutes
and unable to garden, wash dishes, drive, do laundry, clean, cook
or shop (Tr. 474).

Plaintiff presented with antalgic gait and

exhibited a slightly decreased range of motion in her cervical
and lumbar spine (Tr. 475-76).

Her straight leg raising tests

were negative bilaterally and she exhibited full muscle strength
and normal reflexes and sensations

19

(Tr. 476).

Plaintiff exhib-

ited a decreased range of motion in both wrists and knees

(Tr.

476-77).

Dr. Mills diagnosed plaintiff with resolved cervical,
thoracic and lumbar sprains, right wrist internal derangement, a
left wrist sprain and a right knee sprain, and recommended six
weeks of physical therapy (Tr. 477).

Dr. Mills opined that

plaintiff could return to work if she refrained from lifting
objects over 25 pounds, repetitive activities using both wrists
and prolonged or repetitive standing,

kneeling, squatting, using

stairs, walking or running (Tr. 477).
Plaintiff visited Dr. Mills for a second independent
medical examination on December 18, 2014

(Tr. 467).

Plaintiff

reported that her symptoms had worsened since her last examination (Tr. 468).

She now complained of left leg, groin and jaw

pain, and reported that she was experiencing blurred vision and
had difficulty sleeping (Tr. 468).

Plaintiff exhibited a de-

creased range of motion in her lumbar spine, left knee and wrists
bilaterally (Tr. 470).

Her straight leg raising tests were

negative bilaterally, and she had full muscle strength in her
legs, but exhibited decreased sensations

(Tr. 470).

Dr. Mills diagnosed plaintiff with a resolved lumbar
sprain, a resolved right knee sprain and right wrist internal
derangement

(Tr. 471).

Dr. Mills opined that plaintiff could not

return to work, but could continue with daily activities if she

20

refrained from bending, lifting objects over 25 pounds, twisting,
repetitive activities using her wrists bilaterally and prolonged
or repetitive standing,

kneeling, squatting, climbing stairs,

walking or running (Tr. 472).
Plaintiff visited Dr. Mills for a third independent
medical examination on March 12, 2015 and reported lower back and
bilateral hand pain (Tr. 463).

Plaintiff exhibited a decreased

range of motion in her lumbar spine, left knee and wrists bilaterally (Tr. 464-65).

Her straight leg raising tests were nega-

tive bilaterally; she had full muscle strength in her legs, but
exhibited decreased sensations

(Tr.

464).

Dr. Mills diagnosed

plaintiff with a resolved lumbar sprain with underlying degenerative changes and right wrist internal derangement

(Tr.

465).

Dr.

Mills opined that plaintiff could return to work with the restrictions of no repetitive use of both wrists and no heavy
lifting (Tr.

465).
g.

David Drier

Plaintiff visited David Drier, a licensed chiropractor,
for an independent evaluation on December 23, 2014
Plaintiff reported left knee,

left thumb,

back pain during this evaluation (Tr.

(Tr.

456).

right wrist and lower

458).

Plaintiff exhibited

a slightly decreased range of motion in her spine, and her
straight leg raising test was positive on her left side (Tr.

21

458).

Plaintiff exhibited full muscle strength, and her reflexes

and sensations were normal (Tr. 458).

Drier diagnosed plaintiff

with a status-post lumbar sprain and pre-existing cervical
degenerative changes

(Tr. 459).

He opined that plaintiff could

perform her normal daily and work activities if she refrained
from lifting objects over 25 pounds, sitting for longer than 25
minutes at a time and repetitive bending (Tr. 459).

Drier did

not believe that plaintiff would benefit from chiropractic
treatment (Tr. 459).
h.

Dr. Paul Gordon

Plaintiff visited Dr. Paul Gordon, a psychiatrist, for
a psychiatric evaluation on August 30, 2016 (Tr. 479).

Plaintiff

reported difficulty concentrating, insomnia and restlessness
during her evaluation (Tr. 479).

Dr. Gordon noted that plaintiff

was alert and oriented during her examination, her thought
process was logical, her mood was appropriate and she exhibited
good insight and judgment (Tr. 479).

Dr. Gordon diagnosed

plaintiff with possible attention deficit hyperactivity disorder

22

("ADHD")

26

and insomnia (Tr. 478).

Dr. Gordon instructed

plaintiff to follow up with him in two weeks
D.

(Tr. 478).

Proceedings Before the ALJ
1.

Plaintiff's Testimony

Plaintiff testified that she was still experiencing
significant pain in her left knee and lower back and that she was
only able to walk, stand or sit for approximately five minutes at
a time (Tr. 79-80).

Plaintiff further testified that she had no

gripping ability in her left hand and was also severely limited
with grasping objects in her right hand (Tr. 78-81).

She claimed

that she was unable to pick up objects with her left hand and had
difficulty even writing or holding a pen in her right hand (Tr.
80-81).

Plaintiff further testified that she was also unable to

bend (Tr. 80-81).

Plaintiff stated that she was depressed about

not being able to work (Tr. 81-82).
Plaintiff claimed that she spent most days trying to
watch television or read, but spent a large portion of her day
napping because of her insomnia (Tr. 83).

26

Plaintiff testified

ADHD is a mental health disorder that includes a
combination of persistent problems, such as difficulty paying
attention, hyperactivity and impulsive behavior. ADHD, Mayo
Clinic, available at, https://www.mayoclinic.org/diseasesconditions/adult-adhd/symptoms-causes/syc-20350878 (last visited
July 11, 2019).
23

that she took a trip to Aruba in 2015, but found the plane ride
to be extremely difficult (Tr. 84).
2.

Vocational Expert's Testimony

Vocational expert Michele Erbacher ("the VE") also
testified at the hearing.

The VE testified that plaintiff's past

work, described in the United States Department of Labor's
Dictionary of Occupational Titles ("DOT") as a personal care aid,
DOT Code 354.377-014, was considered medium, semi-skilled work
(Tr. 90).

The ALJ asked the VE to consider possible jobs for a

hypothetical person of plaintiff's age, education and work
background, who was limited to a range of light work 27 that
involved never crawling, handling objects with the left hand,
climbing ladders, ropes or scaffolds or working at unprotected
heights, and only occasional stooping, crouching, kneeling,
handling and fingering objects with the right hand and wrist and
fingering objects with the left hand (Tr. 91).

The VE testified

that such a hypothetical individual could not perform plaintiff's

27

The regulations define "light work" as work which
involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to
10 pounds.
Even though the weight lifted may be very
little, a job is in this category when it requires a
good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling
of arm or leg controls.

20 C.F.R.

§

404.1567(b).
24

past work as a personal care aid (Tr. 91).

The VE testified that

such an individual could, however, work in jobs such as an usher,

DOT Code 344.677-014, with 18,000 jobs nationally and an
investigator for dealer accounts for car dealerships, DOT Code
241.367-038, with 7,000 jobs nationally (Tr. 92).

The VE further

testified that if such a hypothetic individual were limited to
sedentary work with the above discussed limitations, no jobs
would exist because bilateral manipulation would be required for
any such position (Tr. 92-93).
III.

Analysis
A.

Applicable
Legal Principles
1.

Standard of Review

The Court may set aside the final decision of the
Commissioner only if it is not supported by substantial evidence
or if it is based upon an erroneous legal standard.
405(g); Lockwood v. Comm'r of Soc. Sec. Admin.,

u.s.c.

§

914 F.3d 87, 91

(2d Cir. 2019); Selian v. Astrue, 708 F.3d 409, 417
2014)

42

(2d Cir.

(per curiam); Talavera v. Astrue, 697 F.3d 145, 151 (2d

Cir. 2012); Burgess v. Astrue, 537 F.3d 117, 127

(2d Cir. 2008).

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

25

Lesterhuis v. Colvin, 805 F.3d 83, 86 (2d Cir. 2015), quoting
Burgess v. Astrue, supra, 537 F.3d at 128.
The Court first reviews the Commissioner's decision for
compliance with the correct legal standards; only then does it
determine whether the Commissioner's conclusions were supported
by substantial evidence.

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

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

(2d Cir.

"Even if the Commissioner's decision is supported by

substantial evidence, legal error alone can be enough to overturn
the ALJ's decision."
328 (S.D.N.Y. 2009)

Ellington v. Astrue,
(Marrero, D.J.).

641 F. Supp. 2d 322,

However,

"where application

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

Johnson v. Bowen, 817 F.2d 983,

986 (2d Cir. 1987).

"'Substantial evidence' is 'more than a mere scintilla.
It means such evidence as a reasonable mind might accept as
adequate to support a conclusion.'"

Talavera v. Astrue, supra,

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

Consequently, "[e]ven where the administrative record

may also adequately support contrary findings on particular
issues, the ALJ's factual findings 'must be given conclusive
effect' so long as they are supported by substantial evidence."
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)
quoting Schauer v. Schweiker, 675 F.2d 55, 57

26

(per curiam),

(2d Cir. 1982).

Thus, "[i]n determining whether the agency's findings were
supported by substantial evidence,

'the reviewing court is

required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be
drawn.'"

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

(citation

omitted).
2.

Determination
Of Disability

A claimant is entitled to DIB if she can establish an
"inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
of not less than 12 months. " 28

. last for a continuous period
42 U.S.C.

Barnhart v. Walton, 535 U.S. 212, 217-22

§

423 (d) (1) (A); see

(2002)

and inability to work must last twelve months).

(both impairment
The impairment

must be demonstrated by "medically acceptable clinical and
laboratory diagnostic techniques," 42 U.S.C.

§

423 (d) (3), and it

must be
of such severity that [the claimant] is not only unable
to do [her] previous work but cannot, considering [the
claimant's] age, education, and work experience, engage

28

The standards that must be met to receive SSI benefits
under Title XVI of the Act are the same as the standards that
must be met in order to receive DIB under Title II of the Act.
Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
Accordingly, cases
addressing the former are equally applicable to cases involving
the latter.
27

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 [the
claimant] lives, or whether a specific job vacancy
exists for [the claimant], or whether [the claimant]
would be hired if [the claimant] applied for work.
42 U.S.C. § 423 (d) (2) (A).

In addition, to obtain DIB, the

claimant must have become disabled between the alleged onset date
and the date on which he was last insured.

See 42 U.S.C. §§

416(i), 423(a); 20 C.F.R. §§ 404.130, 404.315; McKinstry v.
Astrue, 511 F. App'x 110, 111 (2d Cir. 2013)
citing Kohler v. Astrue, 546 F.3d 260, 265

(summary order),

(2d Cir. 2008).

In

making the disability determination, the Commissioner must
consider:

"' ( 1) the objective medical facts;

medical opinions based on such facts;

( 2) diagnoses or

(3) subjective evidence of

pain or disability testified to by the claimant or others; and
(4) the claimant's educational background, age, and work experience."'

Brown v. Apfel, 174 F.3d 59,

62

(2d Cir. 1999)

curiam), quoting Mongeur v. Heckler, 722 F.2d 1033, 1037
1983)

(~
(2d Cir.

( ~ curiam).
In determining whether an individual is disabled, the

Commissioner must follow the five-step process required by the
regulations.

20 C.F.R.

§

404.1520(a) (4) (i)-(v); see Selian v.

Astrue, supra, 708 F.3d at 417-18; Talavera v. Astrue, supra,
F.3d at 151.

The first step is a determination of whether the

claimant is engaged in substantial gainful activity ("SGA").
C.F.R.

§

697

404.1520(a) (4) (i).

If she is not, the second step
28

20

requires determining whether the claimant has a "severe medically
determinable physical or mental impairment."
§

404.1520(a) (4) (ii).

20 C.F.R.

If the claimant does not have a severe

medically determinable impairment or combination of impairments,
she is not disabled.

See Henningsen v. Comm'r of Soc. Sec.

Admin., 111 F. Supp. 3d 250, 264
404.1520(c).

(E.D.N.Y. 2015); 20 C.F.R. §

If she does, the inquiry at the third step is

whether any of claimant's impairments meet one of the listings in
Appendix 1 of the regulations.

20 C.F.R.

§

404.1520(a)(4)(iii).

If the answer to this inquiry is affirmative, the claimant is
disabled.

20 C.F.R.

§

404.1520(a) (4) (iii).

If the claimant does not meet any of the listings in
Appendix 1, step four requires an assessment of the claimant's
residual functional capacity ("RFC") and whether the claimant can
still perform her past relevant work given her RFC.
§

20 C.F.R.

404.1520(a) (4) (iv); see Barnhart v. Thomas, supra, 540 U.S. at

24-25.

If she cannot, then the fifth step requires assessment of

whether, given the claimant's RFC, she can make an adjustment to
other work.

20 C.F.R.

will be found disabled.

§

404.1520(a) (4) (v).
20 C.F.R.

§

If she cannot, she

404.1520(a)(4)(v).

RFC is defined in the applicable regulations as "the
most [the claimant] can still do despite her limitations."
20 C.F.R.

§

404.1545(a) (1).

To determine RFC, the ALJ

"'identif[ies] the individual's functional limitations or re-

29

strictions and assess[es]

. her work-related abilities on a

function-by-function basis,
(b), (c), and (d) of 20

including the functions in paragraphs

[C.F.R. §]

404.1545 .

Astrue, 729 F.3d 172, 176 (2d Cir. 2013)
Social Security Ruling
2, 1996).

("SSR")

'"

(.Q..§_£ curiam),

Cichocki v.
quoting

96-8p, 1996 WL 374184 at *1

(July

The results of this assessment determine the claim-

ant's ability to perform the exertional demands of sustained work
which may be categorized as sedentary,
very heavy. 29
F.3d 496,

light, medium, heavy or

20 C.F.R. § 404.1567; see Schaal v. Apfel,

501 n.6

(2d Cir. 1998).

134

This ability may then be found

to be limited further by nonexertional factors that restrict the
claimant's ability to work.
App'x 35, 38 n.4
Astrue,

30

See Michaels v. Colvin,

(2d Cir. 2015)

595 F.3d 402,

410-11

621 F.

(summary order); Zabala v.

(2d Cir. 2010).

The claimant bears the initial burden of proving
disability with respect to the first four steps.

Once the

claimant has satisfied this burden, the burden shifts to the

29

Exertional limitations are those which "affect only [ the
claimant's] ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling) " 20 C. F. R. § 404 .1569a (b)
30

Nonexertional limitations are those which "affect only
[the claimant's] ability to meet the demands of jobs other than
the strength demands," including difficulty functioning because
of nervousness, anxiety or depression, maintaining attention or
concentration, understanding or remembering detailed instructions, seeing or hearing, tolerating dust or fumes, or manipulative or postural functions, such as reaching, handling, stooping,
climbing, crawling or crouching.
20 C.F.R. § 404.1569a(c).
30

Commissioner to prove the final step -- that the claimant's RFC
allows the claimant to perform some work other than her past
work.

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

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

Gray v. Chater,

903 F. Supp. 293, 297-98

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

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

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

whether the claimant can engage in any other substantial gainful
work which exists in the national economy."

Gray v. Chater,

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

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

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

31

a meaningful employment opportunity."

Bapp v. Bowen, supra, 802

F.2d at 606 (footnote omitted); accord Selian v. Astrue, supra,
708 F.3d at 421; Zabala v. Astrue, supra, 595 F.3d at 411.
Before an ALJ determines that sole reliance on the Grids is
proper in determining whether a plaintiff is disabled under the
Act, he must ask and answer the intermediate question -- whether
the claimant has nonexertional limitations that significantly
diminish her ability to work; an ALJ's failure to explain how he
reached his conclusion to this question is "plain error".

See

Maldonado v. Colvin, 15 Civ. 4016 (HBP), 2017 WL 775829 at *21*23 (S.D.N.Y. Feb. 23, 2017)

(Pitman, M.J.); see also Bapp v.

Bowen, supra, 802 F.2d at 606; St. Louis ex rel. D.H. v. Comm'r
of Soc. Sec., 28 F. Supp. 3d 142, 148 (N.D.N.Y. 2014); Baron v.
Astrue, 11 Civ. 4262
Mar. 4, 2013)

(JGK) (MHD), 2013 WL 1245455 at *19 (S.D.N.Y.

(Dolinger, M.J.)

(Report

&

Recommendation),

adopted at, 2013 WL 1364138 (S.D.N.Y. Mar. 26, 2013)
D.J.).

(Koeltl,

When the ALJ finds that the nonexertional limitations do

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

Butts

v. Barnhart, supra, 388 F.3d at 383-84 (internal quotation marks
omitted); see Heckler v. Campbell,

461 U.S.

458,

462 n.5

(1983)

("If an individual's capabilities are not described accurately by

32

a rule, the regulations make clear that the individual's particular limitations must be considered.").
B.

The ALJ's Decision

The ALJ applied the five-step analysis described above
and determined that plaintiff was not disabled (Tr. 51-63).
As an initial matter, the ALJ found that plaintiff met
the insured status requirements of the Act through December 31,
2019 (Tr. 53).
At step one, the ALJ found that plaintiff had not
engaged in SGA since February 7, 2014

(Tr. 53).

At step two, the ALJ concluded that plaintiff suffered
from the severe impairments of (1) status-post left thumb
interphalangeal joint arthrodesis,

(2)

left hand osteoarthritis,

(3) lumbar spine degenerative disc disease,
radiculopathy,

(4)

chronic L2-L3

(5) status-post left knee arthroscopic surgery,

(6) a right wrist TFCC tear and (7)
ble ganglion cyst 31 (Tr. 53).

left wrist fluid with possi-

The ALJ also concluded that plain-

31

Ganglion cysts are noncancerous lumps that most commonly
develop along the tendons or joints of the wrists.
They are
typically round or oval and are filled with a jellylike fluid.
Ganglion cysts can be painful if they press on a nearby nerve and
can sometimes interfere with joint movement.
Ganglion Cyst, Mayo
Clinic, available at, https://www.mayoclinic.org/diseasesconditions/ganglion-cyst/symptoms-causes/syc-20351156 (last
visited July 11, 2019).
33

tiff suffered from the non-severe impairments of left shoulder
bursitis and ADHD (Tr. 53-55).
At step three, the ALJ found that plaintiff's impairments did not meet or medically equal the criteria of the listed
impairments and that plaintiff was not, therefore, entitled to a
presumption of disability (Tr. 55).

In reaching his conclusion,

the ALJ stated that he gave specific consideration to Listings
1.02, 1.04, 12.04, 12.06 and 12.11

(Tr. 55).

The ALJ then determined that plaintiff retained the RFC
to perform light work with the following limitations:
[Plaintiff] can occasionally climb ramps/stairs;
occasionally balance, stoop, crouch and kneel; no
crawling; and, no climbing ladders, ropes, or scaffolds. [She] must avoid protected heights, vibrations,
and hazardous machinery. [She] can occasionally handle
and finger with the right wrist and hands. [She] cannot
handle with the left hand but is able to use her left
hand as a guide. [She] can occasionally finger with the
left hand(Tr. 55-56).
To reach his RFC determination, the ALJ examined the opinions of
the treating and consulting physicians and determined the weight
to be given to each opinion based on the objective medical record
(Tr. 59-61).
The ALJ afforded "some weight" to Dr. Jenouri's opinion
that plaintiff had "moderate restrictions for walking,
sitting [for]

long periods, bending, climbing stairs,

and carrying" because,

standing,
lifting,

"[w]hile his opinion [was] generally

consistent with findings upon his examination, he did not have

34

the benefit of reviewing additional records received at the
hearing"

(Tr. 59).
The ALJ afforded "little weight" to Dr. Sodha's May 29,

2016 opinion that plaintiff was "unable to work for 6-8 weeks"
because "the ability to work is an issue reserved to the
Commissioner"

(Tr.

59).

The ALJ gave "partial weight" to Dr.

Sodha's October 25, 2016 opinion that plaintiff could
"occasionally reach, handle and finger bilaterally",
handle with the left hand",

"never

"frequently use foot controls",

"never climb ladders or scaffolds or crawl" and "never work
around unprotected heights, moving mechanical parts or vibrations" because it was "consistent with findings on examinations
and [plaintiff's] treatment history (Tr. 59-60).

However, he

afforded "less weight" to the portion of that opinion that
plaintiff could "never lift/carry any weight" because plaintiff's
physical examination from that date revealed that she had "5/5
strength in the upper and lower extremities", the opinion was
"internally inconsistent" and it was inconsistent with the
overall record (Tr.

60).

The ALJ afforded "partial weight" to the opinion of
chiropractor Baltsas that plaintiff "could return to work with
[the]

restrictions of no overhead repetitive activities, no

prolonged walking,

standing,

[or]

sitting and no heavy lifting

over 25 pounds" because "[a]lthough not a recognized medical

35

source, the opinion [was] consistent with the results of a
thorough examination" and consistent with plaintiff's medical
imaging of the lumbar spine (Tr.

60).

The ALJ afforded "partial weight" to the opinion of
chiropractor Drier that plaintiff "had a mild to moderate spinal
disability and may perform her usual work and daily activities,
with restrictions of no lifting over 25 pounds, no sitting over
25 minutes at a time, and no repetitive bending" because
"[a]lthough not a recognized medical source, the opinion [was]
consistent with the results of a thorough examination"

(Tr.

60)

The ALJ afforded "great weight" to Dr. Mills' March 12,
2015 opinion that plaintiff could "work and perform daily
activities with restrictions of no repetitive use of both
hands/wrists and no heavy lifting" and "great weight" to his
December 18, 2014 opinion that plaintiff was "unable to return to
work, but could perform her daily activities with restrictions of
no bending, lifting over 20-25 pounds, twisting, repetitive
activities of wrists /hands,

[ and] prolonged sitting,

squatting, walking, running, or using stairs."

kneeling,

The ALJ also

afforded "great weight" to Dr. Mills' October 16, 2014 opinion
that plaintiff "was capable of working with restrictions of
lifting over 25 pounds, repetitive activities using bilateral
wrists/hands, standing,
walking and running"

kneeling, squatting, using stairs,

(Tr.

60-61).

36

The ALJ found that these

opinions were consistent with Dr. Mills' physical examinations of
plaintiff, with the overall medical record and with the "findings
of normal sensation over the ulnar/median/superficial radial
nerve distributions, 5/5 strength to muscles, good range of
motion of the wrist with only some thumb weakness and minimal
tenderness at the fusion site"

(Tr. 60-61).

The ALJ also considered the imaging and diagnostic
studies of plaintiff's hand, wrists, spine and knee, plaintiff's
thumb and knee surgeries, her claims of depression and ADHD, her
treatment with Dr. Strauch and Dr. Isrealski after her motor
vehicle accident, her treatment with the other physicians at CRH
-- Ors. Booker, Salomon, Husain and Bassora -- and plaintiff's
testimony in determining her RFC (Tr. 56-58).

The ALJ found that

while plaintiff's medically determinable impairments could
reasonably have caused her alleged symptoms, her statements
concerning the intensity, persistence and limiting effects of
these symptoms were not entirely consistent with the medical
evidence and other evidence in the record (Tr. 58).
At step four, the ALJ concluded that plaintiff could
not perform her past relevant work as a personal care aide
because the VE had defined that job as a medium exertion position
as it is performed in the national economy (Tr.
At step five,

61).

relying on the testimony of the VE, the

ALJ found that jobs existed in significant numbers in the na-

37

tional economy that plaintiff could perform, given her RFC, age
and education (Tr. 62-63).

C.

Analysis of
the ALJ's Decision
Plaintiff contends that the ALJ's disability determina-

tion was erroneous because in reaching his RFC determination, the
ALJ (1) violated the treating physician rule,
develop the record adequately and (3)

(2)

failed to

failed to assess properly

plaintiff's credibility and subjective complaints (Plaintiff's
Memorandum of Law in Support of Plaintiff's Motion for Judgment
on the Administrative Record and Pleadings, dated Sept. 14, 2018
( D. I. 13)

( 11 P 1. Memo.

11

)

)

The Commissioner contends that the

•

ALJ's decision was supported by substantial evidence and should
be affirmed (Memorandum of Law in Support of Defendant's CrossMotion for Judgment on the Pleadings and in Opposition to Plaintiff's Motion for Judgment on the Pleadings, dated Nov. 13, 2018
( D. I . 16)

( 11 Def . Memo .

11

)

)

•

As described above, the ALJ went through the sequential
process required by the regulations.

The ALJ's analysis at steps

one, two and four were decided in plaintiff's favor,
Commissioner has not challenged those findings.
fore,

and the

I shall, there-

limit my discussion to addressing whether the ALJ's analy-

sis at step three complied with the applicable legal standards
and was supported by substantial evidence.
38

1.

Step 3: the ALJ's
RFC Determination

The ALJ found that plaintiff had the RFC to perform
light work and was limited to never crawling, working at unprotected heights or with vibrations or hazardous machinery, climbing ladders, ropes or scaffolds or handling objects with the left
hand, and only occasionally climbing ramps or stairs, balancing,
stooping, crouching, kneeling, handling or fingering objects with
the right hand and fingering objects with the left hand (Tr. 5556) .

The ALJ's RFC finding is supported by substantial evidence.
The majority of the evidence in the record supports a

RFC of light work with the above described limitations.

On

September 19, 2014, Dr. Jeanouri opined that plaintiff had
"moderate restrictions" on her ability to bend, climb stairs,
lift, carry, walk and stand or sit for prolonged periods of time
(Tr. 294).

All three of Dr. Mills' opinions noted similar

moderate restrictions, such as, the prohibition against repetitive use of wrists or hands, lifting objects over 25 pounds and
repetitive or prolonged standing, kneeling, squatting, walking or
running (Tr. 465, 472, 477).

On October 25, 2016, Dr. Sodha

opined that plaintiff could occasionally reach for and finger
objects with both hands, occasionally handle objects with her
right hand, but never handle objects with her left hand (Tr.
431).

He further opined that she was able to walk and climb
39

stairs at a "reasonable pace"

(Tr. 434).

Although not recogniz-

able medical sources, chiropractors Baltsas and Drier both opined
that plaintiff had moderate limitations consistent with a light
RFC, namely, that plaintiff was unable to engage in repetitive
overhead activities, could not lift objects over 25 pounds and
could not engage in prolonged walking, bending, standing or
sitting (Tr. 453, 459).
These opinions are all consistent with an RFC to do
light work.

See 20 C.F.R.

§

404.1567(b)

("Light work involves

lifting no more than 20 pounds at a time with frequent lifting or
carrying objects weighing up to 10 pounds."); accord Revi v.
Comm' r of Soc. Sec., 16 Civ. 8521
*30 (S.D.N.Y. Jan. 30, 2018)

(ER) (OF), 2018 WL 1136997 at

(Freeman, M.J.)

(Report

&

Recommendation), adopted at, 2018 WL 1135400 (S.D.N.Y. Feb. 28,
2018)

(Ramos, D.J.)

(ALJ's RFC finding of light work was consis-

tent with consulting examiner's opinion that "plaintiff had only
moderate lifting and carrying limitations"); Crews v. Astrue, 10
Civ. 5160 (LTS) (FM), 2012 WL 1107685 at *17
2012)

(Maas, M. J.)

2122344

(Report

&

(S.D.N.Y. Mar. 27,

Recommendation), adopted at, 2012 WL

(S.D.N.Y. June 12, 2012)

(Swain, D.J.)

(ALJ's RFC finding

of light work was consistent with consulting examiner's opinion
that plaintiff "suffered from only mild-to-moderate limitations
. prolonged periods of

with bending, lifting, carrying,

sitting, standing, or climbing stairs."); Carpenter v. Astrue,

40

09-CV-0079 (RJA), 2010 WL 2541222 at *5-*6 (W.D.N.Y. June 18,
2010)

(ALJ's RFC finding of light work was consistent with

consulting examiner's opinion that "plaintiff had only a moderate
limitation in prolonged walking, standing, kneeling, and climbing.").
The ALJ's RFC finding is also supported by the objective medical evidence in the record.

Plaintiff's February 21,

2014 left thumb MRI revealed no fractures, but because Dr. Sodha
opined that it showed a TFCC tear, Dr. Sodha surgically repaired
it on June 9, 2014

(Tr. 284-85, 357-59).

This surgical repair

appeared to be successful considering plaintiff exhibited full
range of motion in her wrists and fingers at follow-up appointments with Dr. Sodha on July 24, 2014, August 21, 2014, October
3, 2014, February 20, 2015, October 6, 2015, January 19, 2016 and
March 29, 2016 (Tr. 297, 296, 295, 414, 411, 405, 398).

Plain-

tiff's May 10, 2016 left wrist MRI also revealed no fractures,
joint effusion or lesions

(Tr. 422).

However, because Dr. Sodha

noted some weakness over plaintiff's left thumb and plaintiff
continued to report pain and difficulty gripping, the ALJ considered these limitations by finding that plaintiff could never
handle objects with her left hand and could only occasionally
finger objects with her left hand (Tr. 55-56).
With respect to plaintiff's left knee, Dr. Bassora
repaired plaintiff's medial meniscus tear on August 26, 2014

41

(Tr.

367).

While plaintiff reported some residual pain and decreased

sensations from this surgery, she reported no difficulty walking
and she exhibited full muscle strength and normal reflexes in her
knee at subsequent consultative examinations on September 19,
2014, October 15, 2014, October 16, 2014, December 18, 2014,
December 23, 2014 and March 12, 2015 (Tr. 293, 437-38, 452-53,
458, 464,

470, 476).

Notably, plaintiff also never sought

additional treatment from Dr. Bossora or any other orthopedic
surgeon specifically for her left knee after this surgery.
Finally, although plaintiff was diagnosed with
radiculopathy and exhibited decreased range of motion in her
lumbar spine, her November 18, 2014 MRI revealed only minor disc
bulging and no central canal stenosis, and she consistently had
negative straight leg raising tests throughout the relevant
period (Tr. 364).
a.

The Treating Physician Rule

Plaintiff contends that the ALJ violated the treating
physician when determining her RFC because he failed to provide
"good reasons" for affording "little weight" to Dr. Sodha's March
29, 2016 opinion that plaintiff was unable to work for six to
eight weeks and his October 25, 2016 opinion that plaintiff was
unable to lift or carry objects of any weight
15) .

42

(Pl. Memo. at 14-

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

A

treating physician's opinion will be given controlling weight if
it is "well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in .

[the] record."

20 C.F.R. §

404.1527(c) (2); 32 see also Shaw v. Chater, 221 F.3d 126, 134

(2d

Cir. 2000); Diaz v. Shalala, 59 F.3d 307, 313 n.6 (2d Cir. 1995);
Schisler v. Sullivan, 3 F.3d 563, 567

(2d Cir. 1993).

"[G]ood reasons" must be given for declining to afford
a treating physician's opinion controlling weight.

20 C.F.R. §

404.1527(c)(2); Schisler v. Sullivan, supra, 3 F.3d at 568;
Burris v. Chater,

94 Civ. 8049 (SHS), 1996 WL 148345 at *4 n.3

(S.D.N.Y. Apr. 2, 1996)

(Stein, D.J.).

The Second Circuit has

noted that it "'do[es] not hesitate to remand when the Commissioner has not provided "good reasons" for the weight given to a
treating physician[']s opinion.'"
49, 50 (2d Cir. 2015)

Morgan v. Colvin, 592 F. App'x

(summary order), quoting Halloran v.

Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); accord Greek v. Colvin,
802 F.3d 370, 375 (2d Cir. 2015).

32

The SSA adopted regulations that alter the standards
applicable to the review of medical opinion evidence with respect
to claims filed on or after March 27, 2017.
See 20 C.F.R. §
404.1520c.
Because plaintiff's claim was filed before that date,
those regulations do not apply here.
43

As long as the ALJ provides "good reasons" for the
weight accorded to the treating physician's opinion and the ALJ's
reasoning is supported by substantial evidence, remand is unwarranted.

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

also Atwater v. Astrue, 512 F. App'x 67, 70
Petrie v. Astrue,

412 F. App'x 401, 406-07

(2d Cir. 2013);
(2d Cir. 2011)

(sum-

mary order); Kennedy v. Astrue, 343 F. App'x 719, 721 (2d Cir.
2009)

(summary order).

"The opinions of examining physicians are

not controlling if they are contradicted by substantial evidence,
be that conflicting medical evidence or other evidence in the
record."

Krull v. Colvin,

(summary order)

669 F. App'x 31, 32 (2d Cir. 2016)

(citation omitted); see also Monroe v. Comm' r of

Soc. Sec., 676 F. App'x 5, 7 (2d Cir. 2017)

(summary order).

The

ALJ is responsible for determining whether a claimant is "disabled" under the Act and need not credit a treating physician's
determination on this issue if it is contradicted by the medical
record.

See Wells v. Comm'r of Soc. Sec., 338 F. App'x 64, 66

(2d Cir. 2009)

(summary order).

With respect to Dr. Sodha's first opinion, the ALJ
afforded "little weight" to a letter Dr. Sodha wrote that excused
plaintiff from work until her next appointment in approximately
six to eight weeks because it was "limited by time" and "the
ability to work is an issue reserved to the Commissioner"
59, 401).

(Tr.

Plaintiff fails to explain why the ALJ's explanation

44

did not constitute ''good reasons" for rejecting this opinion;
however, it is well settled that "the opinion of a treating
physician, or any doctor, that the claimant is 'disabled' or
'unable to work' is not controlling, since such statements are
not medical opinions, but rather opinions on issues reserved to
the Commissioner."
6882861 at *24

O'Dell v. Colvin, 16 Civ. 368

(S.D.N.Y. Nov. 22, 2016)

(AJP), 2016 WL

(Peck, M.J.)

(citations

and internal quotation marks omitted); see also Valdez v. Colvin,
232 F. Supp. 3d 543, 553-54
M. J.)

(S.D.N.Y. Feb. 3, 2017)

(Gorenstein,

(no violation of the treating physician rule where the ALJ

rejected a treating physician's letter to plaintiff's employer
that she was "unable to work" because it was conclusory and did
not set forth any specific restrictions); Ingraham v. Colvin, 13cv-559 (GLS), 2014 WL 3036243 at *2-*5 (N.D.N.Y. July 3, 2014)
(no error in assigning "little weight" to plaintiff's primary
care doctor's "work excuses" letters "because they were not
functional assessments" and opining that plaintiff was unable to
work was "reserved to the Commissioner").
Dr. Sodha's March 29, 2016 letter merely requested
plaintiff be excused from work for a few weeks and did not
contain any specific restrictions, functional assessments or
explanation (Tr. 401).

Furthermore, Dr. Sodha's examination of

plaintiff on March 29, 2016 does not support plaintiff's assertion that Dr. Sodha was opining that plaintiff was permanently

45

unable to work.

During the March 29 examination, plaintiff

exhibited a full range of motion in her fingers and wrists with

some weakness in her left thumb, and the record shows that
plaintiff never sought treatment from any physician for any
ailment after this visit until six months later on September 29,
2016 (Tr. 398, 485).

Thus, the ALJ did not violate the treating

physician rule by affording "little weight" to this opinion.
With respect to Dr. Sodha's opinion that plaintiff
could "never lift/carry any weight", the ALJ also afforded this
opinion little weight because, as the ALJ correctly explained, it
was not supported by Dr. Sodha's own examination of plaintiff on
that date, it was internally inconsistent with his other opinions
in his medical source statement and it was inconsistent with the
overall record (Tr. 60).
First, on October 25, 2016, plaintiff exhibited a full
range of motion in her elbows, shoulders, fingers,

forearms and

wrists, but reported some pain with wrist and forearm extension
(Tr. 426-27).

She also exhibited full muscle strength and her

sensations and reflexes were normal

(Tr. 426-27).

Plaintiff

attempts to argue that this muscle strength finding of a "5/5"
only related to plaintiff's lower extremities and, thus, Dr.
Sodha's opinion was not inconsistent with his physical examination of plaintiff (Pl. Memo. at 15).

However, the record clearly

shows that plaintiff exhibited a "5/5 strength to [her]

46

thenar/intrinsic/extrinsic muscles" -- the muscles that work to
control the fine motions of the thumb 33 (Tr. 426).

Thus, there

is nothing in Dr. Sodha's physical examination of plaintiff on
October 25, 2016 to support his opinion that she was unable to
lift or carry objects of any weight.
Second, in his medical source statement, Dr. Sodha
first opines that plaintiff can never lift or carry objects of
any weight and then goes on to opine that she can occasionally
reach for and finger objects with both hands and that she can
occasionally handle objects with her right hand (Tr. 429,

431).

He further opined that plaintiff was able to shop, travel,
prepare simple meals and take care of her personal hygiene
434) .

(Tr.

These opinions appear to be internally inconsistent.
Finally, Dr. Sodha's opinion is inconsistent with the

record as whole.

Treatment notes from Ors. Bassora, Saloman,

Jenouri and Mills all indicate that plaintiff had full muscle or
full grip strength throughout the relevant period (Tr. 444-45,
376, 292-93, 464, 470, 476).

The four other providers who

rendered medical opinions on plaintiff's functional capacity
found that plaintiff had only "moderate" restrictions on her
ability to lift objects, and none found that she was unable to
carry or lift objects of any weight

33

(Tr. 294,

453, 459,

477).

See Thenar Eminence Overview, Healthline, available at,
https://www.healthline.com/health/thenar-eminence (last visited
July 11, 2019).
47

Moreover, Dr. Sodha's opinion is also inconsistent with his own
prior opinions that plaintiff had "no restrictions" on August 21,

2014, October 3, 2014 and February 20, 2015 (Tr. 295-96, 414).
Thus, the ALJ provided good reasons for affording this
opinion "little weight" and did not violate the treating physician rule.
b.

Duty to Develop the Record

Plaintiff next maintains that the ALJ's RFC finding was
erroneous because he failed to obtain medical source statements
from Drs. Booker or Husain who plaintiff claims "provided years
of progress and treatment notes"

(Pl. Memo. at 16-17).

"The ALJ's duty to develop the record includes seeking
opinion evidence, usually in the form of medical source statements, from the claimant's treating physicians."
Comm' r of Soc. Sec., 16 Civ. 2298
*13 (S.D.N.Y. Sept. 19, 2017)

Martinez v.

(PGG) (BCM), 2017 WL 9802837 at

(Moses, M.J.)

(Report

&

Recommendation), adopted at, 2018 WL 1474405 (S.D.N.Y. Mar. 26,
2018)

(Gardephe, D.J.), citing 20 C.F.R.

(2013), 416. 913 (b) (6)

(2013).

§§

404.1513(b) (6)

However, contrary to plaintiff's

allegations, plaintiff visited Dr. Booker for two pain management
evaluations -- one on February 26, 2015 and another almost two

48

years later on November 14, 2016 (Tr. 370, 492) . 34

Plaintiff

also only visited Dr. Husain twice -- once on April 8, 2015 and
once on August 18, 2015 (Tr. 385, 391).

Although there is "no

minimum number of visits required to establish a treating physician relationship", "[a] physician who has examined a claimant on
one or two occasions is generally not considered a treating
physician."

Nunez v. Berryhill, 16 Civ. 5078

3495213 at *23
C.F.R.

§

(S.D.N.Y. Aug. 11, 2017)

404.1527(a) (2)

(HBP), 2017 WL

(Pitman, M.J.), citing 20

(A treating physician is one who the

claimant has seen "with a frequency consistent with medical
practice for the type of treatment .

. required for [claim-

ant's] medical condition" to establish an "ongoing treatment
relationship" with the claimant.).

Thus, it is highly question-

able whether Ors. Booker and Husain even qualify as treating
physicians under the regulations.
In any event, remand would still be unwarranted even if
Ors. Booker and Husain were treating physicians because the
record here "contains sufficient evidence from which an ALJ can
assess the [plaintiff's] residual functional capacity."
v. Comm'r of Soc. Sec., 521 F. App'x 29, 34

34

Tankisi

(2d Cir. 2013)

Plaintiff's counsel eventually submitted additional
evidence to the Appeals Council after plaintiff's hearing that
indicates that plaintiff had a follow-up appointments with Dr.
Booker on January 12, 2017, March 7, 2017 and April 17, 2017 and
that Dr. Booker performed a L4-L5 and L5-Sl disc decompression on
plaintiff on May 30, 2017 (Tr. 13-15, 27-29, 35-37, 39).
49

( summary order) .

The ALJ reviewed medical source statements and

evaluations of plaintiff's functional capacities from at least
one treating physician,

35

two consultative physicians and two

chiropractors in determining plaintiff's RFC.

He also reviewed

and considered treatment notes from the other physicians at CRH
including Ors. Booker and Husain.

This is a far cry from those

cases in which the ALJ fails "to obtain any medical source
statements at all" and "no consultative examinations were performed."

Martinez v. Comm'r of Soc. Sec., supra, 2017 WL 9802837

at *14; see also Swiantek v. Comm'r of Soc. Sec., 588 F. App'x
82, 84

(2d Cir. 2015)

(summary order)

(holding that "there were

no 'obvious gaps' that necessitate[d] remand solely on the ground
that the ALJ failed to obtain a formal opinion from one of
[plaintiff's] treating physicians" with respect to one functional
domain); Tankisi v. Comm'r of Soc. Sec., supra, 521 F. App'x at
34

(remand not required solely on the ground that the ALJ failed

to request medical source statements where the record before the
ALJ was quite extensive and included an assessment of plaintiff's
limitations from a treating physician, as well as, opinions from
two separate consulting examiners).

35

By plaintiff's logic here, Dr. Mills should also be
considered a treating physician because he examined plaintiff on
three separate occasions during the relevant period -- October
16, 2014, December 18, 2014 and March 12, 2015 (Tr. 473, 467,
4 63) .
50

Accordingly, because the ALJ had sufficient evidence to
determine plaintiff's RFC and there are no obvious gaps in the

record, remand is unwarranted simply to obtain medical source
statements from Ors. Booker and Husain.
c.

Plaintiff's Credibility

Plaintiff next alleges that the ALJ erred in assessing
her credibility and failed to evaluate her subjective complaints
properly (Pl. Memo. at 17-23).
In Genier v. Astrue, supra,

606 F.3d at 49, the Second

Circuit set out the framework an ALJ must follow in assessing the
credibility of a plaintiff's subjective complaints when making an
RFC finding:
When determining a claimant's RFC, the ALJ is required
to take the claimant's reports of pain and other limitations into account, 20 C.F.R. § 416.920; see
McLaughlin v. Sec'y of Health, Educ. & Welfare, 612
F.2d 701, 704-05 (2d Cir. 1980), but is not required to
accept the claimant's subjective complaints without
question; he may exercise discretion in weighing the
credibility of claimant's testimony in light of the
other evidence in the record.
Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1978).
The regulations provide a two-step process for
evaluating a claimant's assertions of 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.
20 C.F.R. § 404.1529(b).
That requirement stems from the fact that subjective
assertions of pain alone cannot ground a finding of
disability.
20 C.F.R. § 404,1529(a).
If the claimant
does suffer from such an impairment, at the second
step, the ALJ must consider "the extent to which [the
51

claimant's] symptoms can reasonably be accepted as
consistent with the objective medical evidence and
other evidence" of record.
Id.
The ALJ must consider
"[s]tatements [the claimant] or others make about [his]
impairment ( s) , [his] restrictions, [his] daily acti vities, [his] efforts to work, or any other relevant
statements [he] make[s] 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."
20 C.F.R.

§

404.1512(b) (3); see also 20 C.F.R.

§

404.1529(a);

S.S.R. 96-7p, 1996 WL 374186 at *1 (July 2, 1996).
credibility determination is entitled to deference.
Apfel, 177 F.3d 128, 135 (2d Cir. 1999)

An ALJ's
See Snell v.

("After all, the ALJ is

in a better position to decide issues of credibility.").
Applying the two-part framework, and referring specifically to SSR 96-7p, supra, the ALJ found that "after careful
consideration of the evidence .

[plaintiff's] medically

determinable impairments could reasonably be expected to cause
the alleged symptoms; however,

[plaintiff's] statements concern-

ing the intensity, persistence and limiting effects of these
symptoms [were] not entirely consistent with the medical evidence
and other evidence in the record"

(Tr. 58).

Specifically, the

ALJ found that plaintiff's description of her daily activities
was not as limited as one would expect given her claimed
symptoms, the record indicated that plaintiff's treatment had
largely been "beneficial and successful" and plaintiff displayed

52

no physical or mental debilitating symptoms while testifying at
the hearing 36 (Tr. 58-59).

Plaintiff testified that she was unable to walk, stand
or sit for more than five minutes at a time and that she was
unable to pick up objects with her left hand or to bend (Tr. 7881).

These limitations appear to be contradicted by plaintiff's

description of her daily activities, which included bathing and
dressing herself, driving and "light" cooking and cleaning and a
2015 trip to Aruba (Tr. 82-84).

Furthermore, the list of plain-

tiff's daily activities identified at the hearing varied drastically from her description of her daily activities in her Function Report in which she claimed she was able to take care of her
dog and grandchild, do laundry, iron and shop (Tr. 229-34).
Although plaintiff gave these descriptions more than two years
apart, the medical record does not indicate that there was a
significant decline in her physical health during that period.
Plaintiff's testimony is also undermined by the findings of her
treating and consultative physicians who found throughout the
relevant period that plaintiff exhibited full grip strength,

36

The ALJ also stated that "the record does not contain any
non-conclusory opinions, supported by clinical or laboratory
evidence, from treating or examining physicians indicating that
[plaintiff] is currently disabled" as a reason for not wholly
crediting plaintiff's statements regarding the extent of her
symptoms (Tr. 59).
This finding is supported by substantial
evidence as discussed above at page 39-42.
53

normal reflexes and had only "mild to moderate" limitations with
respect to prolonged sitting, standing or walking.
As already discussed above, the record also indicates
that plaintiff's treatment was "beneficial and successful."

Dr.

Sodha performed surgery on plaintiff's left thumb on June 9, 2014
(Tr. 284-85, 357-59) and this surgical repair appeared to be
successful considering plaintiff exhibited full range of motion
in her wrists and fingers at follow-up appointments with Dr.
Sodha on July 24, 2014, August 21, 2014, October 3, 2014, February 20, 2015, October 6, 2015, January 19, 2016 and March 29,
2016 (Tr. 297, 296, 295, 414, 411, 405, 398).

Dr. Sodha

consistently opined that plaintiff had ''no restrictions" after
her examinations on August 21, 2014, October 3, 2014 and February
20, 2015 (Tr. 295-96, 414).

Plaintiff's May 10, 2016 left wrist

MRI also revealed no fractures,

joint effusion or lesions (Tr.

422) .
Dr. Bassora subsequently surgically repaired plaintiff's medial meniscus tear on August 26, 2014

(Tr. 367).

While

plaintiff reported some residual pain and decreased sensations
from this surgery, she reported no difficulty walking and she
exhibited full muscle strength and normal reflexes in her knee at
subsequent consultative examinations on September 19, 2014,
October 15, 2014, October 16, 2014, December 18, 2014, December
23, 2014 and March 12, 2015 (Tr. 293, 437-38, 452-53, 458, 464,

54

470, 476).

Notably, plaintiff also never sought additional

treatment from Dr. Bossora or any other orthopedic surgeon
specifically for her left knee after this surgery.

Plaintiff

also reported that physical and occupational therapy were
alleviating her pain and improving the range of motion in her
hands and knees, and that the epidural cortisone injections
provided her with almost complete pain relief in her back.
Finally, it was not an error for the ALJ to consider
plaintiff's mental and physical demeanor during the hearing.

The

Second Circuit has explicitly held that an ALJ may "take account
of a claimant's physical demeanor in weighing the credibility of
her testimony as to physical disability" so long as this observation is given "limited weight" and is "one of several factors in
evaluating credibility."
502.

"Thus, the ALJ,

Schaal v. Apfel, supra, 134 F.3d at

'after weighing objective medical evidence,

the claimant's demeanor, and other indicia of credibility .
may decide to discredit the claimant's subjective estimation of
the degree of impairment.'"
543, 552 (S.D.N.Y. 2017)

Valdez v. Colvin, 232 F. Supp. 3d

(Gorenstein, M.J.), quoting Tejada v.

Apfel, supra, 167 F.3d at 775-76.

In fact,

"[d]eference should

be accorded the ALJ's [credibility] determination because he
heard plaintiff's testimony and observed [her] demeanor."
Gernavage v. Shalala, 882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995)
(Leisure, D.J.); accord Jones v. Comm'r of Soc. Sec., 14 Civ.

55

7856 (KBF), 2016 WL 6248443 at *9 (S.D.N.Y. Oct. 26, 2016)
(Forrest, D.J.); Gomez v.

Comm'r of Soc. Sec., 14 Civ. 7207

(PAE) (FM), 2016 WL 3938161 at *14

(S.D.N.Y. July 18, 2016)

(Engelmayer, D.J.).
The ALJ noted that "[w]hile the hearing was short-lived
and cannot be considered a conclusive indicator of the [plaintiff's] overall level of functioning on a day-to-day basis, the
apparent lack of debilitating symptoms during the hearing is a
permissible factor to consider amongst other factors in reaching
the conclusion regarding the credibility of the [plaintiff's]
allegations and the [plaintiff's] residual functional capacity"
(Tr. 59).

Thus, the ALJ's assessment of plaintiff's demeanor

during the hearing was entirely proper based on the legal
principles outlined above.

37

37

Plaintiff also argues that because the ALJ's RFC finding
was deficient, "the hypotheticals proffered to the Vocational
Expert (VE) at Step Five of the analysis [were] inaccurate and
incomplete and therefore the [ALJ's] decision [was] not supported
by substantial evidence" (Pl. Memo. at 25).
Plaintiff's argument
is simply a rehashing her previous challenges to the ALJ's RFC
analysis. As already discussed at length above, the ALJ's RFC
finding was not deficient and was supported by substantial
evidence.
The ALJ's hypothetical posed to the VE mirrored the
ALJ's RFC finding exactly, and the VE found that jobs in the
national economy existed that such hypothetical individuals could
perform (Tr. 91-92).
Thus, the hypotheticals posed to the VE
were proper and her testimony was not flawed.
56

2.

New Evidence

Plaintiff submitted additional medical records from CRH
after the ALJ's decision on April 7, 2017, but prior to the
Appeals Council's denial on February 20, 2018

(Tr. 8-47).

These

records included (1) a November 22, 2016 MRI of plaintiff's
lumbar spine that revealed mild disc bulging at L4-L5 and L5-S1
and an annular tear at L5-S1;

(2) an operative report from Dr.

Sodha who performed surgery on plaintiff's right wrist to repair
a suspected TFCC tear on November 30, 2016 and treatment notes
from follow-up appointments on December 9, 2016, December 30,
2016 and April 21, 2017;

(3) treatment notes from appointments

with Dr. Booker on January 12, March 6 and April 17, 2017;

(4)

functional capacity assessments from Dr. Sodha from January 16
and June 20, 2017 and (5) an operative report from Dr. Booker who
performed a disc decompression procedure on plaintiff on May 23,
2017

(Tr. 8-47).
The Appeals Council found that the CRH records from

November 30, 2016 through April 7, 2017 did "not show a reasonable probability that [they] would [have] changed the outcome of
[the ALJ's] decision" and that the CRH records post-April 7, 2017
did not relate to the period at issue because such evidence
related to the period after the ALJ's decision (Tr. 2).
Plaintiff argues for the first time in her reply brief
that "the Appeals Council failed to provide good reasons for the
57

determination made on the medical evidence provided to it
subsequent to the hearing" and, thus, remand is warranted (Plaintiff's Reply Memorandum of Law in Opposition to Defendant's
Cross-Motion and in Further Support of Plaintiff's Motion for
Judgment on the Pleadings, dated Dec. 4, 2018
Reply") at 2-3) .

(D.I. 17)

("Pl.

Generally, new arguments cannot be asserted for

the first time in reply papers and arguments first made in reply
should not be considered.
n.1

(2d Cir. 2010)

Brown v. Ionescu, 380 F. App'x 71, 72

(summary order); Pointdujour v. Mount Sinai

Hosp., 121 F. App'x 895, 896 n.1

(2d Cir. 2005)

Pruitt v. Kirkpatrick, 16 Civ. 2703
n.2

(S.D.N.Y. Oct. 18, 2017)

States, 15 Civ. 6287
10, 2017)
528

(summary order);

(JMF), 2017 WL 4712225 at *3

(Furman, D.J.); Farmer v. United

(AJN), 2017 WL 3448014 at *2

(S.D.N.Y. Aug.

(Nathan, D.J.); United States v. Radin, No. Sl 16 CR.

(HBP), 2017 WL 2226595 at *4

(S.D.N.Y. May 22, 2017)

(Pitman,

M.J.).
In any event, remand is not required because of this
additional evidence.

"The Act sets a stringent standard for

remanding based on new evidence alone" requiring that the new
evidence must be (1)

"relevant to the claimant's condition during

the time period for which benefits were denied";

( 2)

"probative"

and (3) of such substance that "there is 'a reasonable possibility that the new evidence would have influenced the Commissioner
to decide claimant's application differently."'

58

Diaz v. Colvin,

14 Civ. 2277
2015)

(KPF), 2015 WL 4402941 at *17

(S.D.N.Y. July 19,

(Failla, D.J.), quoting Pollard v. Halter, 377 F.3d 183,

193 (2d Cir. 2004).
With respect to the medical records that relate to
plaintiff's treatment after April 7, 2017, the Appeals Council
correctly found that this evidence was not relevant to the time
period for which benefits were denied because it post-dates the
ALJ's decision.
*17.

See Diaz v. Colvin, supra, 2015 WL 4402941 at

With respect to the medical records that relate to treat-

ment prior to April 7, 2017,

38

while this evidence is relevant to

plaintiff's condition during the relevant time period, there is
not a reasonable possibility that it would have changed the ALJ's
decision.
The November 22, 2016 MRI revealed mild disc bulging at
L4-L5 and L5-Sl, but no significant disc herniations or central
canal stenosis (Tr. 38).

At plaintiff's follow-up appointments

with Dr. Booker on January 12 and March 6, 2017, she exhibited
full range of motion in her lower extremities and her straight
leg raising tests were negative (Tr. 33-37).

38

Dr. Booker also

These records also include treatment notes from an
appointment with Dr. Shane Baker on December 16, 2016 in which
plaintiff reported foot and ankle pain and was diagnosed with
plantar fascitis (Tr. 43-44).
As this is an entirely new
complaint separate and apart from plaintiff's other impairments,
I find it is neither probative, nor relevant, to her condition
with respect to the ALJ's disability determination.
59

administered a steroid injection to plaintiff on March 7, 2017,
which provided her with pain relief (Tr. 39-40).
With respect to plaintiff's hand and wrist impairments,
Dr. Sodha performed surgery on plaintiff's right wrist on November 30, 2016 (Tr. 45-47).

Similar to the procedure Dr. Sodha

performed on plaintiff's left hand, this procedure appears to
have been successful considering that plaintiff exhibited a good
range of motion in her fingers at follow-up appointments with Dr.
Sodha on December 9 and December 30, 2016 (Tr. 21-24).

Dr. Sodha

also noted that plaintiff had a fair range of motion in her right
wrist, that her thenar muscle strength was intact and that she
was recovering well from the surgery (Tr. 21-24).

These findings

are consistent with the ALJ's RFC finding that plaintiff could
perform light work and, thus, would not likely have changed his
disability decision.
Dr. Sodha also completed a two-page functional capacity
form for plaintiff on January 16, 2017

(Tr. 25-26).

Although Dr.

Sodha checked a box on that form indicating that plaintiff was
"disabled", he failed to fill out any other sections on the form
to indicate what exertion level plaintiff was capable of working
at, how long she could sit or stand or any other specific functional limitations, other than indicating that plaintiff could
use her left hand for repetitive motions, but not her right hand
(Tr. 25-26).

Even if this assessment had been before the ALJ at

60

the time of his decision, it would have been proper for the ALJ
to reject Dr. Sodha's opinion that plaintiff was disabled because
it was unsupported by any explanation, medical findings or
functional limitation assessments, and, as discussed above, a
treating physician's "opinion that plaintiff appeared permanently
disabled and unable to do any work is a conclusion of law specifically reserved to the judgment of the Commissioner."

Harris v.

Astrue, 935 F. Supp. 2d 603, 609 (W.D.N.Y. 2013), aff'd, 561 F.
App'x 81 (2d Cir. 2014).

The only probative medical opinion

given by Dr. Sodha in this statement is that plaintiff could not
use her right hand for repetitive motions, which is not inconsistent with the opinions of plaintiff's consultative physicians or
the ALJ's RFC finding because he limited plaintiff to only
occasionally handling and fingering objects with her right hand
(Tr. 55-56).
Thus, remand is not required solely for consideration
of this new evidence.
IV.

Conclusion
Accordingly, for all the foregoing reasons, the

Commissioner's motion for judgment on the pleadings is granted
and plaintiff's motion is denied.

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The Clerk of the Court is

respectfully requested to mark D.I. 12 and D.I. 15 closed, and
respectfully requested to close the case.
Dated:

New York, New York
July 24, 2019
SO ORDERED

Hi~N / ~

United States Magistrate Judge

Copies transmitted to
All Counsel

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