Franco v. Colvin
Filing
26
DECISION AND ORDER denying 18 Motion for Judgment on the Pleadings; granting 21 Motion for Judgment on the Pleadings. For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (ECF # 18) is DENIED, and the Commissione r's motion for judgment on the pleadings (ECF # 21) is GRANTED. The Clerk of the Court is directed to close the case. (Signed by Magistrate Judge Lisa Margaret Smith on 7/27/2020) (rro) Transmission to Orders and Judgments Clerk for processing.
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 1 of 46
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SERGIO FRANCO,
Plaintiff,
16CV5695 (LMS)
- against DECISION AND ORDER
ANDREW SAUL, 1 COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
LISA MARGARET SMITH, U.S.M.J. 2
Plaintiff Sergio Franco brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial
review of the final decision of Defendant Commissioner of Social Security (the
"Commissioner"), which denied his application for Disability Insurance Benefits ("DIB"). ECF
# 1. Each party has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. ECF ## 18, 21. For the reasons that follow, Plaintiff's motion (ECF #
18) is DENIED, and the Commissioner's motion (ECF # 21) is GRANTED.
BACKGROUND
I.
Procedural Background
On September 7, 2011, Plaintiff protectively filed for DIB, alleging December 29, 2009,
1
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew Saul has been
substituted as Defendant in this action.
2
The parties have consented to my exercise of jurisdiction over this matter pursuant to 28
U.S.C. § 636(c). ECF # 13.
1
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 2 of 46
as the onset date of his disability. Administrative Record ("AR"), at 67, 194-200. 3 Plaintiff
claimed he was disabled due to hypertension and impairments to his shoulders bilaterally and to
his back. Id. at 221. After his claim was denied by the Social Security Administration (the
"SSA" or "Agency"), Plaintiff requested a hearing before an administrative law judge ("ALJ"),
id. at 109-10, which was held on June 11, 2012, id. at 58-66. On June 18, 2012, the ALJ issued
an unfavorable decision, finding that Plaintiff was not disabled within the meaning of the Social
Security Act (the "Act") from the alleged onset date through the date of the decision. Id. at 7489. Plaintiff subsequently filed a request for review of that decision with the SSA's Appeals
Council, and the Appeals Council remanded Plaintiff’s claims to the ALJ on October 23, 2013,
for further review. Id. at 90-94.
A second hearing was held on July 3, 2014. Id. at 38-57. On September 11, 2014, the
ALJ issued another unfavorable decision, again concluding Plaintiff was not disabled within the
meaning of the Act during the relevant period. Id. at 19-37. On November 14, 2014, Plaintiff
again filed a request for review of the ALJ's decision with the Appeals Council. Id. at 16-18.
Plaintiff's request was denied on May 19, 2016. Id. at 1-8. This made the ALJ's September 11,
2014, decision the final decision of the Commissioner. The instant lawsuit, seeking judicial
review of that decision, followed.
II.
Medical Evidence
A.
Preceding the December 29, 2009, Disability Onset Date
Plaintiff first presented to Dr. Thomas Scilaris, an orthopedic surgeon, on October 30,
3
Citations to "AR" refer to the certified copy of the administrative record filed by the
Commissioner. ECF # 14.
2
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 3 of 46
2009. AR at 510. Plaintiff stated that he was pulling a pole down at work on September 3, 2009,
when he felt "excruciating pain" to his left shoulder. Id. He complained of experiencing a
clicking popping sensation in his left shoulder ever since. Id. Plaintiff denied suffering any
previous injuries to that shoulder. Id. Dr. Scilaris described Plaintiff as an otherwise "healthy
individual." Id. A physical examination revealed marked crepitus 4 and pain with abduction of
the left shoulder at 140 degrees, significant cross arm adduction testing and impingement signs,
and weakness on isolation of the supraspinatus 5 tendon. Id. X-rays revealed a type II acromion 6
with no clear bone abnormalities. Id. Dr. Scilaris diagnosed Plaintiff with left shoulder AC
joint 7 injury with ruling out the possibility of a rotator cuff tear. Id. His treatment plan involved
placing Plaintiff into physical therapy and having Plaintiff continue taking anti-inflammatories.
Id. Dr. Scilaris stated he was requesting authorization for an MRI of Plaintiff's left shoulder. Id.
He also noted Plaintiff was continuing to work. Id.
A few weeks later, on November 16, 2009, Plaintiff returned to Dr. Scilaris complaining
4
Crepitus is a "grinding, grating feeling or a crunchy sound when joints move." What
are the symptoms of osteoarthritis?, WebMD, https://www.webmd.com/osteoarthritis/qa/whatare-the-symptoms-of-osteoarthritis (last visited July 17, 2020).
5
The supraspinatus is a muscle in the rotator cuff that keeps the upper arm stable and
helps lift the arm. What Is My Rotator Cuff, and Why Does It Hurt?, WebMD,
https://www.webmd.com/pain-management/what-is-my-rotator-cuff#1 (last visited July 17,
2020).
6
The acromion is the uppermost part of the shoulder blade. What is an acromioclavicular
(AC) joint injury?, WebMD, https://www.webmd.com/pain-management/qa/what-is-anacromioclavicular-ac-joint-injury (last visited July 17, 2020).
7
The AC (acromioclavicular) joint is where the acromion connects to the collarbone.
What is an acromioclavicular (AC) joint injury?, WebMD, https://www.webmd.com/painmanagement/qa/what-is-an-acromioclavicular-ac-joint-injury (last visited July 17, 2020).
3
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 4 of 46
of pain in his left shoulder. Id. at 511. A physical examination revealed tenderness in the
shoulder with limited mobility. Id. On November 25, 2009, Plaintiff presented to Dr. Eugene
Liu, a physiatrist, for an initial consultation regarding his shoulder injury. Id. at 313-14. 8 A
physical examination revealed decreased left shoulder range of motion, intact grip strength,
reflexes within normal limits, and positive supraspinatus stress testing on the left. Id. at 314. Dr.
Liu recommended that Plaintiff continue physical therapy. Id. 9
Plaintiff returned to Dr. Scilaris on December 10, 2009, with complaints of significant
pain in his left shoulder. Id. at 512. A physical examination revealed significant tenderness over
the AC joint and limited range of motion with 120 degrees of forward flexion and 80 degrees of
abduction. Id. Dr. Scilaris again diagnosed AC joint injury with ruling out the possibility of a
rotator cuff tear and documented his plan for Plaintiff to continue with physical therapy. Id. Dr.
Scilaris noted Plaintiff was still working as a maintenance worker but with the limitations of no
lifting or heavy activity with his left upper extremity. Id.
B.
After the December 29, 2009, Disability Onset Date
On January 8, 2010, Plaintiff returned to Dr. Liu for a follow-up evaluation, reporting
increased pain in his left shoulder. Id. at 315. Plaintiff described the pain as constant and rated
the intensity of the pain as between six and seven out of ten. Id. Range of motion in the left
shoulder was limited with internal rotation to about ten degrees and abduction to about seventy
8
There is a duplicate set of medical records from Dr. Liu for Plaintiff's office visits from
November 25, 2009, to September 13, 2011. See AR at 270-93.
9
Plaintiff reported to Dr. Liu that he had not been taking any medication but had been
doing physical therapy. AR at 313. Records reflect that Plaintiff went for physical therapy from
December 2, 2009, through April 9, 2010, and then again from May 9, 2011, through June 22,
2011. Id. at 347-69.
4
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 5 of 46
degrees. Id. Supraspinatus stress testing on the left was positive. Id. Dr. Liu advised continued
physical therapy. Id.
On February 12, 2010, Dr. Liu again examined Plaintiff, noting decreased left shoulder
range of motion and tenderness to palpation of the clavicular joint. Id. at 316-17. 10 Plaintiff
experienced pain on abduction and internal rotation. Id. Sensory and motor exams were overall
intact. Id. Dr. Liu noted Plaintiff was doing physical therapy, which significantly helped his
pain. Id. Plaintiff was instructed to continue physical therapy and begin Mobic 11 for antiinflammatory purposes. Id. Since Plaintiff was unable to obtain Mobic from the pharmacy, at a
follow-up visit on March 17, 2010, Dr. Liu prescribed Voltaren 12 gel instead. Id. at 318.
Plaintiff underwent an MRI of his left shoulder on March 19, 2010. Id. at 506-07. The
MRI revealed a focal full thickness tear at the distal anterior supraspinatus tendon. Id. The
supraspinatus was intact. Id. It also revealed enthesopathy 13 along the undersurface of the
10
These two pages, AR at 316-17, are almost identical versions of the medical record for
this office visit.
11
Mobic is the brand name for Meloxicam, which is used "to relieve the symptoms of
arthritis . . . such as inflammation, swelling, stiffness, and joint pain." Drugs and Supplements:
Meloxicam (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugssupplements/meloxicam-oral-route/description/drg-20066928 (last visited July 17, 2020).
12
Voltaren is the brand name for Diclofenac, which is used "to treat pain and other
symptoms of arthritis of the joints . . . such as inflammation, swelling, stiffness, and joint pain."
Drugs and Supplements: Diclofenac (Topical Application Route), Mayo Clinic,
https://www.mayoclinic.org/drugs-supplements/diclofenac-topical-applicationroute/description/drg-20063434 (last visited July 17, 2020).
13
Enthesopathy is an "umbrella term" for conditions that affect the entheses, which are
the places where tendons and ligaments connect to bones. Enthesitis is inflammation of the
entheses. Enthesopathy and Enthesitis, WebMD, https://www.webmd.com/arthritis/psoriaticarthritis/enthesitis-enthesopathy#1 (last visited July 17, 2020).
5
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 6 of 46
acromion with inflammatory change at the AC joint and a small Bankart lesion. 14 Id. Dr.
Scilaris incorporated the MRI results into his notes for Plaintiff's visit on April 12, 2010. Id. at
513. The notes included Dr. Scilaris' plan to request authorization for left shoulder arthroscopy
for rotator cuff repair and a possible subacromial decompression. Id. Dr. Scilaris also
recommended continued physical therapy, medication as prescribed by Dr. Liu, and activity
modification. Id.
On April 14, 2010, Plaintiff returned to Dr. Liu with complaints of increased pain in his
left shoulder and lower back. Id. at 319. Plaintiff noted being unable to sleep on his back. Id.
He also could not sit or stand for prolonged periods. Id. A physical examination revealed the
continuance of previously documented left shoulder symptoms, such as tenderness to palpation,
inhibited range of motion, and positive supraspinatus testing on the left. Id. Internal rotation
was to about ten degrees and abduction was to about seventy degrees. Id.
During his next visit to Dr. Liu on May 21, 2010, Plaintiff again reported left shoulder
pain. Id. at 320. Plaintiff said the pain increased when he did not have physical therapy. Id.
The back pain, which was almost constant in nature, had become worse with radiating symptoms
down his right leg. Id. A physical examination revealed stiff range of motion of the lumbar
spine in all directions, tenderness to palpation in the AC joint 15 and paravertebral muscles,
14
A Bankart lesion is when the ligaments are torn from the front of the shoulder socket.
Bankart Repair for Unstable Dislocating Shoulders, University of Washington Orthopaedics and
Sports Medicine, http://www.orthop.washington.edu/patient-care/articles/shoulder/bankartrepair-for-unstable-dislocating-shoulders.html (last visited July 17, 2020).
15
Dr. Scilaris corroborated Dr. Liu's finding of tenderness in the AC joint and also noted
swelling in the AC joint as well as tenderness and swelling in the anterior acromion on May 27,
2010. AR at 514.
6
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 7 of 46
positive straight leg raise on the right, and severe restriction with abduction and internal rotation
of the left shoulder. Id. Dr. Liu noted Plaintiff had no gait disturbance and intact lower
extremity sensation. Id. At a visit to Dr. Liu on June 23, 2010, Plaintiff reported that his left
shoulder pain remained the same but that his right-sided lower back pain had increased and made
his legs very tired. Id. at 321. The physical examination revealed minimal tenderness to
palpation of the left shoulder, intact grip strength, and range of motion inhibited by pain. Id.
Plaintiff was to continue with his medication. Id.
During his visit to Dr. Liu on July 21, 2010, Plaintiff complained of a cracking sensation
in his left shoulder, constant pain radiating down to the left elbow, lower back stiffness on the
right side, and right hip pain. Id. at 322. The physical examination revealed tenderness to
palpation of the left shoulder, decreased range of motion with abduction and flexion, positive
straight arm test, and positive straight leg test on the right. Id. Dr. Scilaris' physical
examination, conducted the next day on July 22, 2010, revealed marked pain and weakness on
isolation of the supraspinatus tendon with marked impingement signs as well as AC joint
tenderness. Id. at 515. Dr. Scilaris recorded 145 degrees of forward flexion and 90 degrees of
abduction. Id. The diagnosis was full thickness rotator cuff tear with left shoulder impingement.
Id. Dr. Scilaris noted Plaintiff had stopped physical therapy even though Dr. Scilaris believed
Plaintiff required it. Id.
Dr. Scilaris received authorization for surgery by the time Plaintiff returned on August
23, 2010. Id. at 516. In the physical examination, Dr. Scilaris found marked weakness on
isolation of the supraspinatus tendon. Id. Left shoulder muscle strength was measured at 4+/5.
Id. Dr. Scilaris' diagnosis was the same one he made after examining Plaintiff the previous
7
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 8 of 46
month: full thickness rotator cuff tear with left shoulder impingement. Id. at 515-16. Two days
later, on August 25, 2010, Plaintiff visited Dr. Liu, who described Plaintiff's pain as "status quo."
Id. at 323. Dr. Liu noted the continuance of earlier symptoms, such as tightness, stiffness, and a
cracking sensation with pain radiating down from the left shoulder. Id. Findings from the
physical examination consisted of left shoulder tenderness to palpation, decreased range of
motion on abduction and external rotation, and muscle atrophy. Id.
On October 6, 2010, Plaintiff returned to visit Dr. Liu and reported left shoulder pain that
was "status quo." Id. at 324. Dr. Liu stated Plaintiff’s shoulder surgery was canceled because of
lower back pain exacerbation. Id. The pain was radiating from his mid-thoracic area to the right
aspect of his lumbar spine and the superior aspect of his pelvic area on the right side. Id. The
physical examination revealed left shoulder tenderness to palpation, positive supraspinatus stress
testing, gross atrophy, and limited range of motion in all directions. Id. In the lumbar paraspinal
region, Plaintiff's muscles were tender to palpation, and a muscle spasm was detected. Id. Dr.
Liu noted decreased range of motion on extension and flexion, positive straight leg raise on the
right in the seated position, and no gait disturbance. Id. Plaintiff was able to heel, toe, and
tandem walk. Id.
Plaintiff returned for a follow-up evaluation with Dr. Liu on November 8, 2010, and he
complained of severe back pain radiating from the mid-thoracic area to the right axial area,
groin, hip, and upper leg. Id. at 325. The pain was causing Plaintiff to experience intermittent
numbness and tingling. Id. He also complained of muscle spasms in the right axial area and
constant stiffness in the lumbar spine. Id. Examination findings regarding the left shoulder
included positive supraspinatus stress testing, tenderness to palpation along the rotator cuff area,
8
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 9 of 46
gross muscle atrophy, decreased range of motion in all directions, and decreased strength in the
left upper extremity, but the sensory exam was intact. Id. Straight leg raise was positive on the
right in the seated position. Id. Lumbar paravertebral muscles were tender to palpation, and a
muscle spasm was observed in the right axial area. Id. Plaintiff was able to heel and toe walk
properly. Id. Dr. Liu noted decreased range of motion on flexion and raising to extension. Id.
Subsequent examinations on December 9, 2010, January 11, 2011, and February 8, 2011,
corroborated many of these findings. Id. at 327-29.
Dr. Lester Lieberman, an orthopedic surgeon, conducted an independent medical
evaluation of Plaintiff on March 8, 2011. Id. at 304-07. The evaluation revealed Plaintiff was
able to walk regularly, heel walk, toe walk, and stand on one leg. Id. at 305. In the lumbar
spine, there was no undue depression or elevation, but Plaintiff was tender in the lumbar region.
Id. Flexion in the lower back was to sixty degrees, and extension was to thirty degrees. Id. at
306. Bending and rotation were to forty-five degrees bilaterally. Id. Sensation and pulsation of
the lower extremities were intact and equal bilaterally. Id. Plaintiff's reflexes were normal. Id.
On both sides, straight leg raise was positive to seventy degrees while lying down and negative
while sitting. Id. Plaintiff was able to abduct and flex both shoulders 180 degrees, albeit with
pain on abduction at the extremes. Id. Dr. Lieberman observed no tenderness on abduction or
flexion. Id. Dr. Lieberman noted negative impingement, SLAP, 16 subscapularis, 17 Neer, and
16
SLAP stands for superior labrum anterior and posterior, and a labrum SLAP tear is
when the labrum—the band of soft tissue surrounding the shoulder socket—is torn at the top in
both the front and back of where it connects to the biceps tendon. What Is a Labrum SLAP
Tear?, WebMD, https://www.webmd.com/pain-management/labrum-slap-tear (last visited July
21, 2020).
17
The subscapularis is the rotator cuff muscle that runs from the shoulder blade to the
9
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 10 of 46
Hawkins 18 signs. Id. Dr. Lieberman diagnosed Plaintiff with impingement syndrome of both
shoulders and lumbar sprain. Id. In Dr. Lieberman's opinion, Plaintiff could return to work at
light duty with restrictions of not lifting, pushing, pulling, or straining more than twenty pounds.
Id. Dr. Lieberman opined home exercises were needed, but physical therapy was not necessary.
Id. He noted that although Plaintiff stated that he had pain in his lumbar spine and both
shoulders, Dr. Lieberman's findings on examination were "minimal." Id. Dr. Lieberman
concluded by stating Plaintiff’s prognosis "appears to be good." Id.
Upon returning to Dr. Liu on March 15, 2011, Plaintiff reported more complaints about
back pain with vague radiating symptoms. Id. at 330. On examination, Dr. Liu noted a muscle
spasm in the paraspinal and left shoulder area. Id. Plaintiff experienced pain during
supraspinatus stress testing. Id.
Plaintiff returned to Dr. Liu on April 12, 2011, and complained of continued pain in both
shoulders and worsening pain in his lower back radiating from his hip to his foot. Id. at 331. Dr.
Liu noted Plaintiff had not received physical therapy in about a year, which was "really affecting
his symptoms." Id. A physical examination revealed left shoulder tenderness to palpation. Id.
upper arm bone. A subscapularis tear most commonly causes shoulder pain, especially in the
front of the shoulder, and can also cause symptoms similar to symptoms of other rotator cuff
tears. Subscapularis Tear, Healthline, https://www.healthline.com/health/subscapularis-tear (last
visited July 21, 2020).
18
The Neer and Hawkins (or Hawkins-Kennedy) tests are used to assess the location of a
shoulder impingement. Shoulder Impingement Test: Important Tool for Evaluating Your
Shoulder Pain, Heathline, https://www.healthline.com/health/sprains-and-strains/shoulderimpingement-test (last visited July 21, 2020). A positive Neer sign indicates a subacromial
impingement, and a positive Hawkins test indicates a supraspinatus tendon impingement. The
Painful Shoulder: Part I. Clinical Evaluation, American Family Physician,
https://www.aafp.org/afp/2000/0515/p3079.html (last visited July 21, 2020).
10
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 11 of 46
Left shoulder range of motion was functional. Id. Supraspinatus stress testing was positive on
the left. Id. Plaintiff's lumbar paravertebral muscles were tender to palpation, and range of
motion was stiff. Id. Straight leg raise was positive on the right. Id.
Dr. Liu's treatment notes from May 10, 2011, describe Plaintiff's left shoulder and lumbar
paraspinal muscles as "minimally tender to palpation." Id. at 332; duplicated at 335. Range of
motion was stiff in Plaintiff's left shoulder, and supraspinatus stress testing was positive. Id. In
the lumbar paraspinal area, range of motion was restricted in all directions. Id. Sensory and
motor exams were intact. Id. Dr. Liu noted that Plaintiff was starting physical therapy. Id.
Plaintiff's physical examinations in June, August, and September, 2011, revealed largely
the same results as Dr. Liu's examinations from earlier that year. Id. at 333-34, 336. The
examination on June 9, 2011, revealed, inter alia, positive straight leg raise bilaterally. Id. at
333. On August 11, 2011, Dr. Liu noted Plaintiff experienced the most severe pain in his right
shoulder along the AC joint. Id. at 334. Dr. Liu described Plaintiff's range of motion in his
lumbar spine as less than fifty percent of the normal range on September 13, 2011. Id. at 336.
On September 20, 2011, Dr. Lieberman examined Plaintiff for a second time. Id. at 30103. After noting an absence of atrophy in both shoulders, Dr. Lieberman documented Plaintiff's
ability to abduct both shoulders to 120 degrees, flex to 140 degrees, and externally rotate to 50
degrees. Id. at 303. There was clicking in both shoulders on extremes of motion. Id. In
Plaintiff's upper extremities, sensation and pulsation were intact and equal bilaterally. Id. Dr.
Lieberman noted muscle strength was good. Id. Plaintiff had negative impingement, SLAP,
subscapularis, and Hawkins signs. Id. Dr. Lieberman diagnosed Plaintiff with bilateral
impingement syndrome in both shoulders. Id. Dr. Lieberman opined that Plaintiff did not need
11
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 12 of 46
physical therapy and could perform home exercises. Id. He noted that Plaintiff's degree of
disability was mild and that Plaintiff could return to work at light duty with restrictions of not
lifting, pushing, pulling, or straining more than twenty pounds. Id.
When Dr. Liu saw Plaintiff on October 18, 2011, he noted Plaintiff was unable to raise
his left arm. Id. at 337. Plaintiff reported back pain radiating down into his legs with a lot of
numbness and tingling. Id. He had not been in physical therapy since July of that year. Id.
Plaintiff stated he was hardly sleeping and did not get out of bed on some days. Id. Dr. Liu's
examination revealed a limping gait, tender lumbar paraspinal muscles, a muscle spasm, and left
shoulder range of motion that was less than fifty percent of the normal range. Id.
On November 29, 2011, Plaintiff complained of continued pain radiating from his lower
back to his legs. Id. at 338. Plaintiff was experiencing numbness and a tingling sensation in
both legs, particularly on the top of his right foot. Id. Plaintiff still had not received physical
therapy treatment in "quite some time," which was affecting his ability to function, walk, stand,
and move around. Id. Dr. Liu's physical examination revealed Plaintiff's lumbar paraspinal
muscles were extremely tender to palpation. Id. Range of motion was stiff and restricted in all
directions. Id. Straight leg raise was positive bilaterally. Id. Light touch sensation was dull in
both lower extremities in the L4 distribution. Id. Plaintiff was unable to heel or toe walk due to
pain. Id. Regarding Plaintiff's left shoulder, the examination revealed minimal tenderness,
decreased range of motion, and positive supraspinatus stress testing. Id.
When Plaintiff visited Dr. Liu on January 31, 2012, he complained of continued pain
radiating from his lower back to his legs. Id. at 339. The pain in his right leg was worse than it
was in his left. Id. Dr. Liu stated Plaintiff was experiencing "quite a bit of pain" because "he has
12
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 13 of 46
not been in physical therapy for quite some time." Id. Despite the pain, Dr. Liu noted Plaintiff
had been looking for jobs that required limited lifting, pushing, and pulling. Id. The physical
examination showed lumbar paraspinal muscles tender to palpation, a muscle spasm, restricted
lumbar spine range of motion, dull light touch sensation in the right lower extremity in the L4
pattern, positive straight leg raise on the right, minimal tenderness in the left shoulder, and
decreased range of motion of the left shoulder. Id. Dr. Liu suggested Plaintiff needed physical
therapy to "possibly get him back to the level where he is able to return to work." Id.
On February 28, 2012, Plaintiff reported experiencing severe pain and numbness down
his right leg and foot whenever he walked longer than a short distance. Id. at 340. After
examining Plaintiff, Dr. Liu documented Plaintiff's left shoulder tenderness to palpation and
restricted range of motion. Id. Sensory and motor exams were intact. Id. Dr. Liu described
Plaintiff's lumbar paraspinal muscles as "minimally tender" with stiff and restricted range of
motion. Id. Additional findings included positive straight leg raise on the left and dull light
touch sensation on the left in the L4 pattern. Id. Dr. Liu noted that Plaintiff needed "structured
physical therapy" to improve his endurance, strength, and range of motion. Id.
Dr. Liu's next physical examination of Plaintiff took place on March 29, 2012, and
showed decreased range of motion of the left shoulder. Id. at 341. Supraspinatus stress testing
was painful on the left. Id. There was some point tenderness along Plaintiff's right shoulder. Id.
In the lumbar paraspinal area, range of motion was stiff, and a muscle spasm was present. Id.
Straight leg raise was measured to about forty degrees from the seated position. Id. Dr. Liu
noted the absence of gross muscle atrophy. Id. Tendon reflexes were trace and symmetrical. Id.
13
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An MRI of Plaintiff's lumbar spine conducted on April 10, 2012, showed disc bulges at
the L1-2 and L4-5 levels, straightening of the lumbar spine (possibly due to muscle spasm), no
significant spinal stenosis, 19 moderate neural foraminal narrowing 20 by the encroaching disc at
the L4-5 level, and mild facet hypertrophy 21 throughout. Id. at 310; duplicated at 508. On April
24, 2012, Dr. Liu noted the MRI results corresponded to Plaintiff's upper lumbar pain and
occasional radiating pain down his right leg. Id. at 342. The physical examination revealed
tender lumbar paraspinal muscles, stiff and restricted range of motion, intact sensory and motor
exams, negative straight leg raise, and tender shoulder joint lines bilaterally with decreased range
of motion. Id.
On May 15, 2012, Dr. Liu completed a residual functional capacity assessment, id. at
343-45, in which he diagnosed Plaintiff with lumbar disc herniation, radiculopathy, 22 and
19
Spinal stenosis is a narrowing of the spaces within the spine, which can put pressure on
the nerves travelling through the spine. Spinal stenosis, Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/spinal-stenosis/symptoms-causes/syc20352961?_ga=2.105072395.900712207.1532027368-595990397.1532027368 (last visited July
17, 2020).
20
Neural foraminal narrowing (or neural foraminal stenosis) is a type of spinal stenosis in
which the small openings between the bones in the spine—the neural foramina—constrict.
Neural Foraminal Stenosis, Healthline, https://www.healthline.com/health/neural-foraminalstenosis#:~:text=Overview,neural%20foramina%2C%20narrow%20or%20tighten (last visited
July 17, 2020).
21
Facet hypertrophy is the degeneration and enlargement of the facet joints—a pair of
small joints at each level along the back of the spine that offer support, stability, and flexibility to
the spine. Hypertrophic Facet Disease Definition, Spine-Health, https://www.spinehealth.com/glossary/hypertrophic-facet-disease (last visited July 17, 2020).
22
Radiculopathy is a medical term used to describe the symptoms, which often include
pain, weakness, numbness, and tingling, resulting from the pinching of a nerve root in the spinal
column." Radiculopathy, Johns Hopkins Medicine,
https://www.hopkinsmedicine.org/health/conditions-and-diseases/radiculopathy (last visited July
14
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 15 of 46
shoulder impingement/compensatory injury, id. at 344. He indicated Plaintiff was occasionally
capable of lifting up to ten pounds but never capable of lifting more. Id. Dr. Liu noted that in an
eight-hour work day Plaintiff could stand and/or walk for up to one hour (but only five minutes
without interruption) and sit for up to two hours (but only ten to fifteen minutes without
interruption). Id. According to Dr. Liu, Plaintiff was never able to climb, bend, stoop, crouch,
kneel, or crawl. 23 Id. at 345. Plaintiff was more capable of performing the listed manipulative
activities, for he could occasionally reach, push, and pull, and he could frequently feel and
handle. Id. Dr. Liu checked every box on the form as representing an environmental limitation
affecting Plaintiff. 24 Id. Dr. Liu opined that all of the foregoing limitations had been present
since November 25, 2009. Id.
Plaintiff returned to Dr. Liu on May 24, 2012, for an evaluation of his left shoulder and
lower back pain. Id. at 462. Dr. Liu noted Plaintiff's disinclination for an epidural injection
because of his fear of needles. Id. Dr. Liu stated physical therapy had benefitted Plaintiff in the
past, but it had not been renewed. Id. Additionally, Dr. Liu noted Plaintiff's pain in the L4
distribution corresponded to the results of an MRI conducted the previous month. Id. The
physical examination revealed diminished range of motion of the lumbar region with flexion to
fifty degrees and lateral flexion to ten degrees bilaterally. Id. at 462-63. Lower extremity
17, 2020).
23
Balancing was the only listed postural activity that Plaintiff could occasionally
perform. AR at 345.
24
The list of environmental limitations consisted of heights, chemicals, fumes, moving
machinery, dust, humidity, temperature extremes, noise, and vibration. AR at 345.
15
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strength was full on both sides in every group. Id. at 462, 464. Sensation and reflexes were both
2+ bilaterally. Id. at 462. Left shoulder range of motion was diminished with pain on internal
and external rotation. Id. There was no tenderness to palpation over the anterior aspect of the
glenohumeral joint 25 in the shoulder. Id.
On June 1, 2012, Plaintiff first presented to Dr. Hemant Patel, an internist, with
complaints of hypertension and chronic back pain in the lumbar region. Id. at 418. Dr. Patel
noted the back symptoms did not include decreased range of motion. Id. According to Dr.
Patel's notes, Plaintiff described his back symptoms as "mild." Id. Dr. Patel examined Plaintiff
on June 1, June 14, and June 28, and each examination revealed full range of motion in all major
joints. Id. at 414-21. Dr. Liu also examined Plaintiff on June 28, 2012, and he described
Plaintiff's left shoulder as non-tender. Id. at 465. Dr. Liu's physical examination revealed
slightly decreased left shoulder range of motion on internal rotation, minimally tender lumbar
paraspinal muscles, and restricted range of motion in the lumbar area. Id. at 465-66. Muscle
strength was full throughout. Id. at 467.
Plaintiff returned to Dr. Liu on July 24, 2012, complaining of struggling to exercise
because of the accompanying pain in his lower back and left shoulder. Id. at 468. Walking
caused his left leg to swell and his toes to cramp. Id. According to Dr. Liu, Plaintiff had not
been in structured physical therapy "in a while" and had been getting many more muscle spasms.
Id. Plaintiff's left shoulder had become more sensitive to weather changes. Id. The physical
examination revealed tenderness along the rotator cuff of the left shoulder with restricted range
25
The glenohumeral joint is the joint in the shoulder complex that connects the upper
extremity to the trunk. Glenohumeral Joint, Physiopedia, https://www.physiopedia.com/Glenohumeral_Joint (last visited July 17, 2020).
16
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of motion, particularly on internal rotation. Id. Plaintiff's lumbar paraspinal muscles were also
tender with restricted range of motion. Id. Range of motion was full for Plaintiff's cervical
region, right shoulder, elbows, wrists, hips, knees, and ankles. Id. at 469. Muscle strength was
full throughout. Id. at 470.
On September 27, 2012, Plaintiff returned to Dr. Patel for a follow-up evaluation
regarding his hypertension. Id. at 423-24. Dr. Patel noted Plaintiff's hypertension was stable
with medication. Id. at 424. As for musculoskeletal issues, Plaintiff was experiencing joint pain,
but he had full range of motion in every major joint. Id. at 423-24. According to Dr. Patel's
notes, Plaintiff was not experiencing back pain. Id. at 423.
On October 2, 2012, Dr. Liu examined Plaintiff, who complained of increased back pain
and left shoulder pain, with pain radiating down his left leg and constant cramping in his left
toes. Id. at 471. Findings from the physical examination included tender lumbar paraspinal
muscles, restricted range of motion on extension, positive straight leg raise on the left, dull light
touch sensation in the left lower extremity, trace and symmetric tendon reflexes at the ankles,
and minimal tenderness in the left shoulder with decreased range of motion. Id. On October 18,
2012, Dr. Patel characterized Plaintiff's back pain as stable with no radiation and hypertension as
stable with medication. Id. at 425-26. Plaintiff's back pain remained stable in his next visit to
Dr. Patel on November 8, 2012, but his hypertension was elevated. Id. at 427-28. Dr. Patel also
noted that joint pain was not present. Id. at 427.
Plaintiff visited Dr. Liu on December 11, 2012, with complaints of pain radiating from
his back down his left leg, cramping in his left leg, and tightness in his left shoulder and right
trapezius. Id. at 474. The physical examination revealed minimal tenderness and decreased left
17
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shoulder range of motion. Id. at 474-75. Supraspinatus stress testing caused discomfort on the
left side. Id. at 474. Plaintiff's lumbar paraspinal muscles were also minimally tender with
restricted range of motion. Id. at 474-75. A mild spasm was observed in the bilateral paraspinal
muscles. Id. at 474. In the left lower extremity, straight leg raise was positive, and light touch
sensation was dull. Id. Muscle strength was full in the lower extremities and tendon reflexes
were 2+ bilaterally. Id. at 474, 476. On December 16, 2012, Dr. Patel again documented full
range of motion in all major joints and an absence of joint pain. Id. at 429-30.
On February 7, 2013, Dr. Liu observed Plaintiff was hunched over when he walked. Id.
at 477. Dr. Liu's physical examination revealed minimally tender lumbar paraspinal muscles and
a mild spasm. Id. Plaintiff had full range of motion in his cervical region, shoulders, elbows,
wrists, hips, knees, and ankles on both sides. Id. at 478. Lumbar spine range of motion was
restricted: flexion-extension was to sixty degrees and lateral flexion was to twenty degrees
bilaterally. Id. at 477-78. Manual muscle testing revealed full strength throughout. Id. at 479.
On March 21, 2013, Plaintiff reported radiating pain down both arms (but more so on the
left side) to Dr. Liu. Id. at 480. Plaintiff said he needed a letter for Social Services that stated he
was temporarily disabled and unable to work. Id. Dr. Liu's examination again revealed
minimally tender lumbar paraspinal muscles and restricted range of motion of the lumbar spine.
Id. No spasms were detected. Id. Left shoulder range of motion was severely restricted, as
forward elevation was to 120 degrees, abduction to 120 degrees, adduction to 20 degrees, and
internal rotation to 25 degrees. Id. at 480-81. The right shoulder was hiked and uneven when
compared to the left shoulder. Id. at 480. Dr. Liu observed mild atrophy in Plaintiff's trapezius
18
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muscles on the left side. Id. Manual muscle testing again revealed full strength throughout. Id.
at 482.
Plaintiff's next examination with Dr. Liu on April 9, 2013, showed "pretty much no
change from the previous visit." Id. at 483. There were no diffuse muscle spasm and no trigger
points in the cervical and lumbar areas. Id. The neck and back had full range of motion. Id.
There was some limitation, however, in left upper extremity range of motion. Id. Range of
motion was otherwise full throughout. Id. at 484. 26 Muscle strength was also full throughout.
Id. at 485. Upper and lower extremity strength, sensation, and deep tendon reflexes were intact.
Id. at 483. On April 26, 2013, Dr. Patel noted back pain was present but joint pain was not. Id.
at 437. Plaintiff had full range of motion in all major joints. Id. at 438. As for Plaintiff's
hypertension, Dr. Patel stated it was stable with medication. Id. An annual depression screening
indicated Plaintiff had been suffering from mild depression. Id.
Dr. Liu examined Plaintiff on May 14, 2013, but Plaintiff's status on that date is unclear
in light of the discrepancy between Dr. Liu's written report and the accompanying range of
motion table included in the medical records. 27 Id. at 486-87. On May 31, 2013, Dr. Patel noted
Plaintiff had back pain and joint pain in his shoulder. Id. at 439. The physical exam revealed
26
Although Dr. Liu's notes state that there was "some limitation of the range of motion of
the left upper extremity," AR at 483, the table with the range of motion testing results does not
indicate any limitations on Plaintiff's range of motion in any part of his body. Id. at 484.
27
For example, Dr. Liu wrote range of motion in the cervical area was to thirty degrees
throughout, but the table indicates that it was to a full forty-five degrees throughout. AR at 48687. Likewise, Dr. Liu wrote flexion was to forty-five degrees with lateral flexion to fifteen
degrees bilaterally in the lumbar area, but the table shows flexion to a full ninety degrees and
lateral flexion to a full thirty degrees bilaterally in the lumbar area. Id.
19
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 20 of 46
full range of motion in all major joints. Id. at 439-40. Plaintiff's hypertension was stable. Id. at
440. Dr. Patel also noted Plaintiff's posture and gait were both normal. Id. at 441.
In his treatment notes dated June 4, 2013, Dr. Liu began by mentioning Plaintiff's left
shoulder, neck, and back pain. Id. at 489. Several sentences later, however, Dr. Liu stated
Plaintiff "has no complain[t]s regarding his neck." Id. Dr. Liu noted Plaintiff had not received
physical therapy since May, 2011. Id. The physical examination revealed familiar findings:
tender lumbar paraspinal muscles on palpation, restricted range of motion, positive straight leg
raise on the left lower extremity, decreased light touch sensation in the left lower extremity,
minimally tender left shoulder on palpation with restricted range of motion, and intact sensory in
the upper extremity. Id. Dr. Liu noted Plaintiff's "improved symptoms" and planned for Plaintiff
to "continue all conservative treatment at this point." Id.
Also on June 4, 2013, Dr. Liu completed another residual functional capacity form, in
which he stated Plaintiff's pain and symptoms were sufficiently severe to frequently interfere
with his attention and concentration. Id. at 370. The form indicated Plaintiff could sit and stand
for a maximum of five minutes at a time. Id. Plaintiff could sit and stand/walk for less than two
hours in an eight-hour work day. Id. Furthermore, Plaintiff needed to be able to shift positions
at will from sitting, standing, or walking. Id. Plaintiff could lift up to ten pounds occasionally,
but never more than that. Id. Finally, Dr. Liu noted Plaintiff could occasionally reach, feel,
handle, push, and pull, but he could never bend, stoop, crawl, climb, kneel, or squat. Id.
On July 9, 2013, Plaintiff returned to Dr. Liu reporting back pain and lower extremity
radicular symptoms. Id. at 492. Dr. Liu observed a muscle spasm in Plaintiff's paraspinal area.
Id. The physical examination further revealed limited range of motion, dull light touch sensation
20
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in the lower extremities in the L5 pattern, and trace tendon reflexes. Id. Dr. Liu documented the
treatment plan of holding off on interventional treatment and continuing with medication and
home exercises. Id. In summarizing the visit, Dr. Liu stated that in light of Plaintiff's chronic
condition, maximum medical improvement had been reached regarding no further intervention.
Id.
Plaintiff reported status quo back pain and radiating symptoms when he visited Dr. Liu
on August 8, 2013. Id. at 493. According to Dr. Liu, Plaintiff resisted a lumbar injection
because of his fear of needles and because he was "tolerating the medication" and doing home
exercises. Id. The examination exposed a muscle spasm in the paraspinal area. Id. Straight leg
raise was to twenty degrees with discomfort in the right. Id. Tendon reflex was trace. Id.
Range of motion testing revealed no limitations in the cervical region or right shoulder. Id. at
494. In the left shoulder, range of motion was limited to 130 degrees for forward elevation and
abduction, and to 20 degrees for adduction and internal rotation. Id. There were no range of
motion limitations for Plaintiff's elbows, wrists, hips, knees, or ankles. Id. Lumbar flexionextension was limited to fifty degrees, and lateral flexion was to twenty degrees bilaterally. Id.
Muscle testing revealed full muscle strength throughout. Id. at 495.
On September 12, 2013, Plaintiff reported continued lower back symptoms and rated his
pain level as six out of ten. Id. at 496. The physical examination revealed tender lumbar
paraspinal muscles on palpation and restricted range of motion: flexion-extension to sixty
degrees and lateral flexion to ten degrees bilaterally. Id. at 496, 498. Regarding the left lower
extremity, straight leg raise was positive, and there was a decrease in light touch sensation. Id. at
496. Left shoulder range of motion was full. Id. at 498.
21
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On November 5, 2013, Dr. Patel noted Plaintiff's back pain and joint pain, normal posture
and gait, and full range of motion in all major joints. Id. at 443-44. According to Dr. Patel,
Plaintiff's hypertension and back pain were stable with medication. Id. at 444. Meanwhile,
Plaintiff's depression was stable even without medication. Id.
Plaintiff returned to see Dr. Liu on December 3, 2013, complaining of continued back
pain radiating down his left leg, cramping, leg spasm, and abdominal pain. Id. at 499. The
physical examination revealed minimally tender lumbar paraspinal muscles with restricted range
of motion: flexion-extension was to fifty degrees and lateral flexion was to thirty degrees
bilaterally. Id. at 499-500. Straight leg raise was positive on the left. Id. at 499. Sensory and
motor exams in the lower extremities were intact. Id. Range of motion was full in all areas other
than the lumbar region. Id. at 500. Muscle testing continued to reveal full strength throughout.
Id. at 501.
On March 6, 2014, Plaintiff returned to Dr. Liu with continued back pain radiating down
into his legs. Id. at 502. Plaintiff's symptoms were increased since he had fallen down steps two
weeks before the visit. Id. The physical examination revealed tender lumbar paraspinal muscles
and restricted range of motion: flexion-extension was to fifty degrees. 28 Id. at 502-03. Range of
motion was full in every other region. Id. at 503. Straight leg raise was positive bilaterally. Id.
at 502. Muscle strength remained full throughout. Id. at 504.
Plaintiff's last documented visit to Dr. Liu occurred on April 3, 2014. Id. at 505.
Plaintiff complained of continuous pain in his lower back that occasionally traveled down
through the left lower extremity. Id. The pain was accompanied by numbness, tingling, and
28
Lateral flexion, however, was to a full thirty degrees bilaterally. AR at 503.
22
Case 7:16-cv-05695-LMS Document 26 Filed 07/27/20 Page 23 of 46
spasms in the left foot. Id. Additionally, Plaintiff complained of left shoulder pain. Id. The
physical examination revealed lumbar paraspinal muscles tender to palpation, and the lumbar
spine range of motion was restricted to fifty degrees on flexion-extension and ten degrees
bilaterally on lateral flexion. Id. In a third-degree sitting position, straight leg raise was positive
to the left lower extremity with leg flexion to thirty degrees. Id. Left shoulder range of motion
was restricted. Id. In the cervical area, range of motion was to about thirty degrees throughout.
Id. Dr. Liu observed the presence of muscle spasms in both the cervical and lumbar areas. Id.
Upper and lower extremity strength, sensation, and deep tendon reflexes were intact. Id.
Straight leg raise was not localizing to the lower extremity. Id.
C.
Consultative Examination
Plaintiff presented to Dr. Aurelio Salon for both a consultative internal medicine
examination and a consultative neurologic examination on December 19, 2013. Id. at 388-91,
399-403. Plaintiff principally complained of bilateral shoulder pain, lower back pain, and
hypertension. Id. at 388, 400. Dr. Salon noted Plaintiff had physical therapy on his left shoulder
for about two to three months in 2010 and not again since then. Id. As for Plaintiff's lower back,
Dr. Salon stated the pain was non-radiating, and Plaintiff never had physical therapy for that
region. Id. Plaintiff was diagnosed with hypertension in 2002, but did not exhibit any symptoms
at the time of Dr. Salon's examination. Id.
Plaintiff could capably perform many activities of daily living, such as cooking, cleaning,
doing laundry, shopping, and watching television. Id. at 389, 401. Plaintiff was able to shower
and dress himself. Id. According to Dr. Salon, Plaintiff did not appear to be in any acute
distress. Id. Plaintiff's gait and stance were normal. Id. He was capable of walking on his heels
23
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and toes without difficulty, and he did not use an assistive device. Id. Plaintiff squatted 1/3 of
full, needed no help getting changed for the examination or getting on and off the examination
table, and was able to rise from a chair without difficulty. Id. Hand and finger dexterity were
intact, and grip strength was full bilaterally. Id. at 390, 402. Range of motion was normal for
the cervical, thoracic, and lumbar spine with no tenderness or muscle spasm. Id. Straight leg
raise was negative bilaterally. Id. Range of motion was full bilaterally in the shoulders, elbows,
forearms, wrists, hips, knees, and ankles. Id. at 402. In the upper and lower extremities, Dr.
Salon noted full muscle strength, equal deep tendon reflexes, and no muscle atrophy. Id. at 390,
402. Dr. Salon concluded there were no objective findings showing Plaintiff had a diminished
ability to sit, stand, climb, push, pull, or carry heavy objects. Id. at 390, 403.
Furthermore, on December 23, 2013, Dr. Salon completed a residual functional capacity
questionnaire, id. at 404-10, in which he noted that Plaintiff could lift and carry up to 10 pounds
continuously, 20 pounds frequently, and 100 pounds occasionally. Id. at 404. According to Dr.
Salon, Plaintiff could sit, stand, and walk for up to eight hours at one time without interruption
and did not require a cane to ambulate. Id. at 405. Plaintiff could also continuously handle,
finger, and feel, frequently reach (except overhead), and occasionally reach overhead and
push/pull with both hands. Id. at 406. With respect to postural activities, Plaintiff could
frequently climb stairs, ramps, ladders, or scaffolds, balance, stoop, kneel, crouch, and crawl. Id.
at 407. Plaintiff could frequently tolerate unprotected heights and occasionally tolerate moving
mechanical parts, but could continuously tolerate all other environmental limitations. Id. at 408.
Finally, Plaintiff could go shopping, travel by himself, ambulate without assistive devices, walk
a block at a reasonable pace on rough or uneven surfaces, use public transportation, climb a few
24
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steps at a reasonable pace with the use of a single hand rail, prepare a simple meal and feed
himself, care for his personal hygiene, and sort, handle, or use paper/files. Id. at 409.
III.
Other Evidence
A.
Agency Forms
On September 20, 2011, Plaintiff completed a Disability Report, in which he listed
hypertension, bilateral shoulder pain, and back pain as the medical conditions limiting his ability
to work. Id. at 220-21. Plaintiff indicated he stopped working as of December 29, 2009, because
of the aforementioned conditions. Id. at 221. Plaintiff had worked in one maintenance job for
about seven and one half years before stopping in December, 2009. Id. at 222. He identified Dr.
Liu and Dr. Klein 29 as medical sources who had records relevant to his claims. Id. at 224-25.
On October 31, 2011, Plaintiff completed a "Function Report-Adult," indicating he was
unable to perform daily living tasks without experiencing pain and discomfort. Id. at 229-30.
For example, he noted having difficulty dressing, bathing, caring for his hair, and shaving. Id. at
231. Plaintiff also stated he was having difficulty falling and staying asleep. Id. at 230. Plaintiff
noted that he could prepare simple meals, such as soups, sandwiches, and microwavable meals,
and could do light dusting and cleaning, but he had to take breaks in between chores. Id. at 23132. He did not feel comfortable driving since the onset of his condition. Id. at 232. Plaintiff's
hobbies included reading and watching television on a daily basis, but both required him to take
frequent breaks because he could not remain in one position for a long time. Id. at 233. Plaintiff
29
Dr. Klein was not mentioned anywhere else in the administrative record. It appears
that she treated Plaintiff for hypertension, as Plaintiff listed her as the prescriber for the
medication Valsartan, which he stated he took to treat his hypertension. See AR at 224.
25
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stated he could not socialize as he once did. Id. at 234. He reported that his ability to lift, stand,
walk, sit, climb stairs, kneel, squat, reach, use his hands, see, hear, and talk had all been
negatively affected by his injury. Id. Plaintiff said he was able to walk for two to three blocks
before needing to rest for five minutes. Id. at 235. He mentioned his tendency to become easily
frustrated increased his symptoms. Id.
B.
Hearing Testimony
An administrative hearing was held before ALJ Michael Friedman on June 11, 2012. Id.
at 58-66. Plaintiff was forty-five years old at the time of the hearing, 30 which he attended with
his attorney. Id. at 58. Plaintiff testified that he lived by himself in an apartment. Id. at 60-61.
Plaintiff stated he last worked in December, 2009, in a maintenance position, but he had to stop
because he injured his left shoulder and back in an accident at work. Id. at 61. Plaintiff said he
had received physical therapy, but it had not helped his shoulder much. Id. Lying down helped
alleviate the shoulder pain. Id. at 62. He also took medications to help the pain, but their side
effects included stomach problems and sleepiness. Id. at 61, 64. Plaintiff described being able to
stand for a maximum of thirty minutes, sit for thirty to forty-five minutes, and walk for ten to
fifteen minutes. Id. at 62. Plaintiff stated that he traveled by subway to the hearing. Id.
Although Plaintiff did not need a cane when he walked outside, he nevertheless used one in his
home. Id. at 64. Included in Plaintiff's regular activities were grocery shopping (although he
needed someone to go with him), cooking, cleaning, reading, and watching television. Id. at 6263. Plaintiff stated he could comfortably lift a maximum of ten pounds. Id. at 63.
30
Plaintiff was born on December 9, 1966. AR at 67.
26
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A second administrative hearing was held before ALJ Michael Friedman on July 3, 2014.
Id. at 38-57. Plaintiff was forty-seven years old at the time of the hearing, which he attended
with his non-attorney representative. Id. at 25, 38, 182-83. Plaintiff said he continued to live by
himself in an apartment. Id. at 41. When describing his maintenance position, he stated he
"fixed everything" and "had to clean and paint." Id. at 42. In addition to the shoulder pain he
described in the first hearing, Plaintiff now described experiencing constant pain in his neck and
lower back as well. Id. at 42, 45. He said that the pain in his shoulders ran down his arms into
his hands; that he lost feeling in his hands; that it was hard for him to move his hands; and that
he dropped things. Id. at 47. Plaintiff testified that his ability to use a computer was hampered
by the pain in his hands and neck, and that he could not use a computer for more than ten
minutes a day. Id. Plaintiff stated that he had problems reaching with his arms both in front and
to the sides. Id. at 48. When asked to rate the intensity of the pain on a scale of one to ten, he
responded "[b]etween seven and eight." Id. at 46. Plaintiff continued to take pain medications
because they helped "[a] little bit" even though they caused him to "get very dizzy." Id. He
noted that lying down helped the pain, id. at 43, but he also said that he had trouble sleeping at
night because of the pain. Id. at 48. Plaintiff was going to physical therapy and doing exercises
at home. Id. He explained that the physical therapy helped lessen the pain temporarily, but the
alleviative effect stopped once the therapy session ended. Id. Sitting for a long time caused him
to experience a lot of pain. Id. Plaintiff said he could sit for twenty-five to thirty minutes, stand
for twenty to thirty minutes, walk for twenty minutes (although his feet got swollen), and lift a
maximum of five pounds. Id. at 44. Plaintiff took the subway alone to the hearing. Id. Since
the first hearing, Plaintiff had started occasionally using a cane outside of his house. Id. at 46.
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Plaintiff was engaging in the same activities as the ones he described in the prior hearing, but he
had since started to experience neck pain when sitting in one position for too long, which
hampered his ability to watch television. Id. at 46-47. In the interim period between the two
administrative hearings, Plaintiff started doing pottery. Id. at 45.
The ALJ called upon a vocational expert ("VE") to testify telephonically at the second
hearing. Id. at 50. The ALJ provided the following description to the VE: "He's Spanishspeaking, a light R[esidual]F[unctional]C[apacity], and here are the restrictions. The . . . left
non-dominant arm is limited to ten pounds lifting, and in addition, the jobs should permit a fiveminute break in the morning, and a five-minute break in the afternoon, in addition to the
customary morning 15-minute break, afternoon 15-minute break, and 30 minutes for lunch." Id.
at 51. The VE responded by providing three jobs from the DOT 31 that she described as
involving "light, unskilled work": (1) assembler of small products; (2) cleaner (housekeeping);
and (3) machine operator. Id. at 51, 53. 32 Upon being questioned by Plaintiff's attorney, the VE
stated Plaintiff would be unable to work as a cleaner (housekeeper) if he needed to alternate
between sitting and standing. Id. at 54.
APPLICABLE LEGAL PRINCIPLES
I.
Standard of Review
The scope of review in an appeal from a social security disability determination involves
31
"DOT" refers to the United States Department of Labor's Dictionary of Occupational
Titles.
32
The ALJ rejected two of the VE's first three job suggestions (messenger and usher)
because of Plaintiff's limited ability to speak and read English. AR at 51-52.
28
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two levels of inquiry. First, the court must review the Commissioner's decision to determine
whether the Commissioner applied the correct legal standards when determining that the plaintiff
was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). Failure to apply the correct
legal standard is a ground for reversal of the ruling. Townley v. Heckler, 748 F.2d 109, 112 (2d
Cir. 1984).
Second, the court must decide whether the Commissioner's decision was supported by
substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
"Substantial evidence means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Id. at 106 (internal quotation marks and citations omitted).
When determining whether substantial evidence supports the Commissioner's decision, it is
important that the court "carefully consider[] the whole record, examining evidence from both
sides." Tejada, 167 F.3d at 774 (citing Quinones v. Chater, 117 F.3d 29, 33 (2d Cir. 1997)). "It
is not the function of a reviewing court to decide de novo whether a claimant was disabled."
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (citation omitted). If the "decision rests on
adequate findings supported by evidence having rational probative force, [the court] will not
substitute [its own] judgment for that of the Commissioner." Veino v. Barnhart, 312 F.3d 578,
586 (2d Cir. 2002).
II.
Determining Disability
The Act defines the term "disability" as the inability "to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). One is disabled under the Act if he
29
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or she suffers from an impairment which is "of such severity that he [or she] is not only unable to
do his [or her] previous work but cannot . . . engage in any other kind of substantial gainful work
which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). " '[W]ork which exists in the
national economy' means work which exists in significant numbers either in the region where
such individual lives or in several regions of the country." Id.
Regulations issued pursuant to the Act set forth a five-step process that the Commissioner
must follow in determining whether a particular claimant is disabled. The Commissioner first
considers whether the claimant is engaged in "substantial gainful activity." 20 C.F.R. §§
404.1520(a)(4)(i),(b). If the claimant is so engaged, then the Commissioner will find that the
claimant is not disabled; if the opposite is true, then the Commissioner proceeds to the second
step. Id. At step two, the Commissioner determines the medical severity of the claimant's
impairments. 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is "any impairment or
combination of impairments which significantly limits [the claimant's] physical or mental ability
to do basic work activities." 20 C.F.R. § 404.1520(c). If the claimant suffers from any severe
impairment, the Commissioner, now at step three, must decide if the impairment meets or equals
a listed impairment; listed impairments are presumed severe enough to render one disabled, and
the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of the Social Security
Regulations. 20 C.F.R § 404.1520(a)(4)(iii),(d).
If the claimant's impairments do not satisfy the criteria of a listing at step three, the
Commissioner must then determine the claimant's residual functional capacity ("RFC"). 20
C.F.R. § 404.1520(e). A claimant's RFC represents "the most [he or she] can still do despite [his
or her] limitations." 20 C.F.R. § 404.1545(a)(1). Then, the Commissioner proceeds to the fourth
30
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step to determine whether the claimant can perform his or her past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv),(e)-(f). If the claimant cannot perform his or her past relevant work, the
Commissioner proceeds to step five to consider the claimant's RFC, age, education, and work
experience to determine whether he or she can adjust to other work. 20 C.F.R. §
404.1520(a)(4)(v),(g).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico
v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the ALJ concludes at an early step of the
analysis that the claimant is not disabled, he or she need not proceed with the remaining steps.
Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000). If the fifth step is necessary, the burden shifts
to the Commissioner to show that the claimant is capable of other work. DeChirico, 134 F.3d at
1180 (citation omitted).
DISCUSSION
Presently before the Court are the parties' cross motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff moves for the Court to
reverse the Commissioner's decision and enter judgment in his favor, or remand the matter to the
Agency for further administrative proceedings, ECF # 18. He advances two main arguments in
support of such relief, asserting that the Commissioner improperly evaluated (1) the medical
opinion evidence, and (2) Plaintiff's allegations of pain. ECF # 19 at 13-24; ECF # 24 at 2-10.
Defendant, on the other hand, argues that the Commissioner's decision should be affirmed
because it is supported by substantial evidence and based upon the application of correct legal
standards. ECF # 22 at 18-29. As discussed below, the Court finds no reason to disturb the final
determination of the Commissioner, and therefore grants Defendant's motion.
31
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I.
ALJ's Decision
On September 11, 2014, ALJ Friedman employed the five-step analysis described above
and issued a decision finding that Plaintiff was not disabled since the alleged onset date. AR at
19-37. As an initial matter, the ALJ determined that Plaintiff met the insured status requirements
of the Act through September 30, 2015. Id. at 27. At the first step of the sequential analysis, the
ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset
date of December 29, 2009. Id. At the second step, the ALJ determined that Plaintiff had two
severe impairments: back disorder and left shoulder disorder. Id. At the third step, the ALJ
determined that neither of Plaintiff's impairments met or medically equaled the severity of a
listed impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 27-28.
According to the ALJ, Plaintiff retained the RFC to perform light work, as defined in 20
C.F.R. § 404.1567(b), albeit with a few limitations. Id. at 28. 33 The ALJ found that Plaintiff
could lift and carry twenty pounds occasionally and ten pounds frequently. Id. at 31. In
addition, the ALJ determined Plaintiff could spend up to six hours standing, walking, and/or
sitting during an eight-hour workday. Id. However, Plaintiff was limited to lifting ten pounds
with his left arm and restricted to jobs permitting an extra five-minute break in the morning and
afternoon. 34 Id. at 28, 31.
33
"Light work 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).
34
Such jobs must also permit the customary fifteen-minute morning break, fifteen-minute
afternoon break, and thirty-minute lunch break. AR at 28, 31.
32
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The ALJ determined Plaintiff's RFC by applying the multi-step framework described in
20 C.F.R. § 404.1529. Id. at 28-32. First, he outlined Plaintiff's medically determinable
impairments and concluded they could reasonably be expected to cause the alleged symptoms.
Id. at 28. Second, the ALJ evaluated Plaintiff's statements about his symptoms to make a finding
about the credibility of those statements in light of the totality of the record. Id. The ALJ
considered Plaintiff's statements about, inter alia, the nature of his pain, the effect of various
treatment methods, and his daily activities. Id. The ALJ then looked to the objective medical
evidence in the record before concluding that Plaintiff's statements regarding the intensity,
persistence, and limiting effects of his symptoms were not credible. Id. at 28-32. In weighing
the medical evidence, the ALJ gave "great weight" to the opinion of independent medical
examiner, Dr. Lieberman, because (1) Dr. Lieberman is a specialist in the relevant area, namely,
orthopedics; and (2) Dr. Lieberman's opinion was consistent with the overall record. Id. at 31.
The ALJ was "not persuaded" by the opinion of treating physician, Dr. Liu, because it was not
supported by the findings from the MRIs and physical examinations or Dr. Liu's own progress
notes. Id.
At the fourth step, the ALJ found that Plaintiff was unable to perform his past relevant
work as a janitor/maintenance worker, which was medium in exertion and unskilled. Id. at 32.
The ALJ then noted Plaintiff's age as of the alleged onset date (forty-three years old) and his
inability to communicate in English. Id. Transferability of job skills was immaterial because
Plaintiff's past relevant work was unskilled. Id.
At the fifth step, the ALJ relied upon the VE's testimony in finding that Plaintiff could
perform other work that existed in significant numbers in the national economy. Id. at 32-33.
33
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After considering Plaintiff's age, education, work experience, and RFC, the ALJ determined
Plaintiff could transition to occupations that require only light work, such as (1) assembler of
small products (222,114 jobs nationally); (2) cleaner (housekeeping) (133,482 jobs nationally) 35;
and (3) machine operator (70,323 jobs nationally). Id. at 33. The ALJ therefore concluded that
Plaintiff was not disabled from the alleged onset date, December 29, 2009, through the date of
the decision, September 11, 2014. Id.
II.
Evaluation of Medical Opinion Evidence
Plaintiff argues that the ALJ erred in evaluating the medical opinion evidence.
Specifically, Plaintiff claims that the ALJ: (1) improperly considered and rejected the opinion of
Plaintiff's treating physician, Dr. Liu; and (2) improperly afforded relatively greater evidentiary
weight to the opinions of the independent medical examiner, Dr. Lieberman, and the consultative
examiner, Dr. Salon. ECF # 19 at 13-21; ECF # 24 at 2-8. The Court addresses each argument
in turn.
A.
Treating Source Rule
Plaintiff argues the ALJ improperly evaluated the opinion of Plaintiff's treating physician,
Dr. Liu. ECF # 19 at 13-17; ECF # 24 at 2-6. The applicable regulations define a treating source
as an "acceptable medical source who provides [], or has provided [the claimant], with medical
treatment or evaluation and who has, or has had, an ongoing treatment relationship with" the
claimant. 20 C.F.R. § 404.1527(a)(2). A treating source opinion is afforded controlling weight
35
The VE had testified that Plaintiff could not perform the cleaner (housekeeping) job if
he needed to alternate between sitting and standing in addition to the limitations that the ALJ had
hypothesized. AR at 54. However, the ALJ did not include this limitation in his RFC
determination.
34
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if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the claimant's] case record." 20 C.F.R.
§ 404.1527(c)(2). On the other hand, a treating source opinion is not afforded controlling weight
if it is "not consistent with other substantial evidence in the record, such as the opinions of other
medical experts." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). A decision not to afford
controlling weight to a treating source's medical opinion must be supported by "good reasons."
20 C.F.R. § 404.1527(c)(2).
First, Plaintiff argues the ALJ's decision was improper because it did not specify the
amount of weight afforded to his treating physician's opinion. 36 ECF # 19 at 15-17; ECF # 24 at
2, 6. Any error committed by the ALJ may be deemed harmless if it did not affect the outcome
of the ALJ's decision. See Walzer v. Chater, No. 93-CV-6240, 1995 WL 791963, at *9
(S.D.N.Y. Sept. 26, 1995) (concluding ALJ's failure to discuss a treating physician's report was
harmless error because doing so would not have changed ALJ's decision). If the ALJ did err by
neglecting to explicitly identify the amount of weight he gave to an opinion, such an error may
nevertheless be deemed harmless if the ALJ thoroughly considered the opinion. See, e.g., Brown
v. Comm'r of Soc. Sec., 680 F. App'x 822, 824-25 (11th Cir. 2017) (classifying ALJ's failure to
specify weight as harmless error because the ALJ considered the relevant opinions in detail); Bus
v. Astrue, No. 08-CV-00481-A(M), 2010 WL 1753287, at *5 (W.D.N.Y. Apr. 29, 2010) (finding
harmless error where ALJ failed to comment on weight assigned to treating physician's opinion
but referenced treating physician's evaluations and treatment notes throughout the decision,
36
Plaintiff similarly argues the ALJ improperly neglected to specify the weight he
assigned to the consultative examiner's opinion. ECF # 19 at 18, 21; ECF # 24 at 6.
35
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indicating that ALJ considered treating physician's reports and opinions); Pease v. Astrue, No.
5:06–CV–0264 (NAM/DEP), 2008 WL 4371779, at *8 (N.D.N.Y. Sept. 17, 2008) (finding ALJ's
failure to state specifically the weight afforded a treating physician's opinion was harmless error
where ALJ cited the treating physician's records and conclusions throughout the decision).
Here, the ALJ stated that he was "not persuaded" by Dr. Liu's opinion because it was
inconsistent with the totality of the medical evidence, thereby implicitly affording it minimal
weight. 37 AR at 31-32. Remanding the matter for the ALJ to explicitly assign a low degree of
weight to Dr. Liu's opinion would not change the ALJ's ultimate determination that Plaintiff was
not disabled. See, e.g., Arguinzoni v. Astrue, No. 08-CV-6356T, 2009 WL 1765252, at *9
(W.D.N.Y. June 22, 2009) (concluding the ALJ's decision would not have changed if he
explicitly labeled the weight he afforded to each treating physician's opinion because the ALJ's
decision was supported by substantial evidence). The omission of a specific weight label was
therefore harmless error. See Bus, 2010 WL 1753287, at *5 ("[E]ven if this Court determined
the ALJ failed to comment on the weight of [the treating physician's] opinion, this would
constitute harmless error, and would not provide a basis for remand to the Commissioner."). 38
37
The ALJ's explanation of how Dr. Liu's opinion is inconsistent with the totality of the
medical evidence is quoted at length herein. See infra p. 38.
38
The foregoing analysis and conclusion also address Plaintiff's assertion that the ALJ
improperly failed to specify the weight given to the opinion of consultative examiner, Dr. Salon.
See, e.g., Lloyd v. Berryhill, 682 F. App'x 491, 497 (7th Cir. 2017) (concluding the ALJ
committed harmless error by not explicitly assigning a level of weight to a consultative
examiner's opinion because the ALJ thoroughly addressed the consultative examiner's findings);
Withus v. Saul, 18-CV-10923 (VSB)(JLC), 2019 WL 6906972, at *15 (S.D.N.Y. Dec. 19, 2019)
("[W]hen an ALJ fails to assign precise weight to the opinion of [a consultative examiner], the
error may be harmless when a specific delineation of weight would not change the outcome.
Furthermore, an ALJ's decision need not be remanded when the record includes a robust
discussion of the opinion of a medical source that allows the reader to infer the weight an ALJ
36
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Second, Plaintiff argues the ALJ failed to give "good reasons" for implicitly giving little
weight to Dr. Liu's opinion. ECF # 19 at 16-17; ECF # 24 at 2-6. An ALJ must consider several
factors when deciding whether to override a treating source's opinion. Selian v. Astrue, 708 F.3d
409, 418 (2d Cir. 2013) (per curiam) (citing Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir.
2008)). These factors include "(1) the frequen[c]y, length, nature, and extent of treatment; (2)
the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with
the remaining medical evidence; and (4) whether the physician is a specialist." Id.; see also 20
C.F.R. § 404.1527(c)(2)(i)-(ii),(c)(3)-(c)(6) (factors to be considered when not giving treating
source's medical opinion controlling weight include (1) the length of the treatment relationship
and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the
extent to which the medical source provides relevant evidence to support a medical opinion; (4)
the extent to which the medical opinion is consistent with the record as a whole; (5) whether the
medical opinion is given by a specialist; and (6) other factors which may be brought to the
attention of the ALJ). The failure to consider expressly each factor, however, does not amount to
legal error per se. McGovern v. Berryhill, No. 15-CV-10057 (KMK) (PED), 2018 WL 1587154,
at *5 (S.D.N.Y. Mar. 29, 2018) (order adopting report and recommendation) (citing Halloran,
362 F.3d at 32). Remand is unwarranted if, notwithstanding the failure to ruminate expressly on
each factor, the ALJ provides "good reasons" for the weight assigned to the opinion, and the
ALJ's findings are supported by substantial evidence. See Greek v. Colvin, 802 F.3d 370, 375
(2d Cir. 2015) (per curiam) (ALJ must comprehensively set forth his or her reasons for not
has given that opinion.") (citations omitted). Although the ALJ failed to assign a specific weight
to Dr. Salon's opinion, this is no more than harmless error, since the ALJ thoroughly discussed
Dr. Salon's examination findings, which "showed no significant abnormalities." AR at 30-31.
37
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giving controlling weight to treating source so as to avoid a basis for remand); Atwater v. Astrue,
512 F. App'x 67, 70 (2d Cir. 2013) (summary order) ("We require no such slavish recitation of
each and every factor where the ALJ's reasoning and adherence to the regulation are clear."); see
also Martinez-Paulino v. Astrue, No. 11-CV-5485 (RPP), 2012 WL 3564140, at *16 (S.D.N.Y.
Aug. 20, 2012) ("It is not necessary that the ALJ recite each factor explicitly, only that the
decision reflects application of the substance of the rule.") (citing Halloran, 362 F.3d at 32).
Here, the ALJ's decision to find Dr. Liu's assessments unpersuasive is entitled to
deference, as it provides good reasons and is supported by substantial evidence. As the ALJ
explained in his decision:
I am not persuaded by Dr. Liu's assessments in Exhibits 6F and 8F that
indicate a residual functional capacity for less than sedentary work as the
findings from the MRIs and the physical examinations do not support such
a restrictive assessment. Dr. Liu's opinion is not supported by his own
progress notes in Exhibits 5F and 13F which only suggest a left shoulder
impingement, and bulges in the lumbar spine and no herniations. Further,
his progress notes do establish the existence of these conditions, yet also
revealed that with medication and physical therapy, these conditions
improved and his symptoms alleviated. Nothing in the file, support the
environmental limitations assessed by Dr. Liu either. Dr. Liu's opinion is
also inconsistent with Exhibit 3F, an evaluation by orthopedic surgeon,
Dr. Liberman [sic], who opined that there was no need for physical
therapy and that the degree of disability was mild.
AR at 31-32. Thus, in evaluating Dr. Liu's opinion, the ALJ considered relevant factors, such as
the extent to which Dr. Liu's opinion was consistent (or in this case, inconsistent) with the
medical evidence of record, including diagnostic test results, examination findings (including his
own progress notes), and prescribed treatments, and explained how Dr. Liu's assessments were
not supported by this evidence.
It is well established that "[w]hen a treating physician's opinion is internally inconsistent
38
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or inconsistent with other substantial evidence in the record, the ALJ may give the treating
physician's opinion less weight." Illenberg v. Colvin, No. 13-Civ-9016 (AT) (SN), 2014 WL
6969550, at *20 (S.D.N.Y. Dec. 9, 2014) (citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999)); see Tricarico v. Colvin, 681 F. App'x 98, 101 (2d Cir. 2017) (summary order)
("Although a treating physician's assessment is typically given more weight than other
examiners' assessments, internal inconsistencies, and the conflicting opinions of other examining
physicians, where supported by evidence in the record, can constitute substantial evidence to
support not according the treating physician's opinion controlling weight, as well as good reasons
to attribute only limited weight to that opinion."); 20 C.F.R. § 404.1527(c)(4) ("Generally, the
more consistent a medical opinion is with the record as a whole, the more weight we will give to
that medical opinion."). It is also appropriate to afford less weight to an opinion that is not
thoroughly explained or supported by objective medical evidence. See 20 C.F.R. §
404.1527(c)(3) (explaining that the degree of weight given to a medical opinion is affected by
the amount of medical evidence and the quality of the explanation supporting the opinion).
In discussing the objective medical evidence in support of his RFC determination and
why he was not persuaded by Dr. Liu's assessments, the ALJ described Dr. Liu's and Dr. Patel's
treatment records, noting that "[t]he updated treatment notes and physical examinations in
Exhibits 12F [Dr. Patel's records] and 13F [Dr. Liu's records] show little wrong with the claimant
on recent visits." AR at 31. The ALJ added that "updated evidence from Dr. Hemant Patel show
the claimant improving (Exhibit 12F). The latest report dated November 5, 2013 from Dr. Patel
indicated no musculoskeletal problems on that day as well as on many prior days." Id. The ALJ
also cited the lumbar spine MRI performed in April, 2012, which "showed little abnormalities,"
39
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as well as Dr. Lieberman's assessment (discussed in more detail below), which was consistent
with the treatment records. Id.
In addition, the ALJ rejected Dr. Liu's opinion based on its inconsistency with his own
treatment notes, as he was entitled to do. See Monroe v. Comm'r of Soc. Sec., 676 F. App'x 5, 8
(2d Cir. 2017) (summary order) ("The ALJ did not impermissibly substitute her own expertise or
view of the medical proof for the treating physician's opinion. Rather, the ALJ rejected [the
treating physician's] opinion because she found it was contrary to his own treatment notes.")
(internal quotation marks, brackets, and citation omitted); Cichocki v. Astrue, 534 F. App'x 71,
75 (2d Cir. 2013) (summary order) ("Because [the treating physician's] medical source statement
conflicted with his own treatment notes, the ALJ was not required to afford his opinion
controlling weight."). Dr. Liu's progress notes showed that Plaintiff's conditions improved with
medication and physical therapy, AR at 29, 31, and his updated treatment notes showed
improvement in Plaintiff's condition and did not reveal any significant problems. Id. at 30-31.
In sum, the ALJ applied the proper legal standard in evaluating Dr. Liu's opinion, and his
decision to decline to assign it controlling weight is supported by substantial evidence.
B.
Non-Treating Sources
Plaintiff claims the ALJ improperly considered and relied upon the opinions of Dr.
Lieberman, an independent medical examiner, and Dr. Salon, a consultative examiner. ECF # 19
at 17-21; ECF # 24 at 6-8. The opinions of consultative examiners and independent medical
examiners must be evaluated as well. See 20 C.F.R. § 404.1527(c) ("Regardless of its source,
we will evaluate every medical opinion we receive."). As previously discussed, the ALJ
considers, among other factors, the degree to which the examiners' opinions are supported by
40
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medical findings and consistent with the record as a whole. 20 C.F.R. §§ 404.1527(c)(3),(4). It
is well settled that the opinions of non-treating sources may constitute substantial evidence in
support of an ALJ's rational conclusion. Suarez v. Colvin, 102 F. Supp. 3d 552, 577 (S.D.N.Y.
2015); see also Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995) (determining the opinions of
three non-treating examining physicians, as well as plaintiff's own testimony and medical tests,
constituted substantial evidence in support of the ALJ's conclusion). Furthermore, an ALJ may
afford greater weight to the opinions of non-treating examining physicians than to that of a
treating physician if the former "are more consistent with the underlying medical evidence."
Suarez, 102 F. Supp. 3d at 577; see also Diaz, 59 F.3d at 313 n.5 (opinions of non-examining
sources may override treating sources' opinions "provided they are supported by evidence in the
record") (citation omitted).
Here, the ALJ assigned "great weight" to Dr. Lieberman's opinion because it was
consistent with the progress notes of Plaintiff's treating physicians and because of Dr.
Lieberman's specialty as an orthopedic surgeon. 39 AR at 31; see 20 C.F.R. § 404.1527(c)(5)
(generally, more weight is given to the medical opinion of a specialist). Dr. Lieberman's
findings were consistent with Dr. Patel's findings, which repeatedly showed Plaintiff had no
musculoskeletal problems. AR at 30-31. Additionally, Dr. Lieberman's evaluations showed
39
Contrary to Plaintiff's assertion, ECF # 19 at 19; ECF # 24 at 7-8, the ALJ did not rely
on Dr. Lieberman's disability determination, but rather, the ALJ relied on Dr. Lieberman's
evaluations and medical opinion, which the ALJ found to be consistent with the progress notes of
Plaintiff's treating physicians, as support for the ALJ's own conclusion that Plaintiff was not
disabled. AR at 30-32. "While it is true that opinions of disability rendered in connection with a
workers' compensation claim are not binding on the Commissioner, an ALJ must nonetheless
weigh all medical opinions." Ramsey v. Comm'r of Soc. Sec., 18-CV-0877-MJR, 2020 WL
2781723, at *6 (W.D.N.Y. May 29, 2020) (citation omitted).
41
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good muscle strength and intact sensation in the upper extremities, both of which were consistent
with the results of numerous physical examinations conducted by Drs. Liu and Patel. Id. Dr.
Lieberman's findings were further reinforced by Dr. Salon's examination, which showed no
significant abnormalities. Id.
Plaintiff argues the ALJ erred in "pick[ing] and choos[ing]" portions of the medical
evidence that best supported his ultimate RFC conclusion while "rejecting" the portions that
undermined his conclusion. ECF # 19 at 20; ECF # 24 at 7. The ALJ's RFC conclusion,
however, "need not perfectly correspond to any one medical assessment as long as it is supported
by the record as a whole." Tricarico, 681 F. App'x at 101. Here, the ALJ applied the appropriate
legal standard in his consideration of all of the medical evidence in the record, and that evidence,
as summarized in detail hereinabove as well as in the ALJ's decision, AR at 29-32, constitutes
substantial evidence to support the ALJ's reasonable conclusion regarding Plaintiff's RFC.
III.
Credibility Determination
Plaintiff disputes whether the ALJ's credibility determination was sufficiently specific to
demonstrate that it was supported by substantial evidence. ECF # 19 at 21-24; ECF # 24 at 8-10.
Specifically, Plaintiff claims the ALJ improperly relied on Plaintiff's statements regarding his
ability to perform certain activities of daily living. Id.
The regulations set forth a two-step process to assess a claimant's credibility. Genier v.
Astrue, 606 F.3d 46, 49 (2d Cir. 2010). At the initial step, the ALJ determines whether the
claimant suffers from a "medically determinable impairment that could reasonably be expected
to produce [his or her] symptoms, such as pain." 20 C.F.R. § 404.1529(b). If that is the case,
then second, the ALJ considers "the extent to which [the claimant's] symptoms can reasonably be
42
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accepted as consistent with the objective medical evidence and other evidence" of record. 20
C.F.R. § 404.1529(a). However, the ALJ "is not required to accept the claimant's subjective
complaints without question; he [or she] may exercise discretion in weighing the credibility of
the claimant's testimony in light of the other evidence in the record." Genier, 606 F.3d at 49
(citation omitted). When rejecting subjective complaints, an ALJ "must do so explicitly and with
sufficient specificity to enable the Court to decide whether there are legitimate reasons for the
ALJ's disbelief and whether his [or her] determination is supported by substantial evidence."
Brandon v. Bowen, 666 F. Supp. 604, 608 (S.D.N.Y. 1987).
The ALJ must consider all available evidence, including objective medical evidence and
information regarding (i) the claimant's daily activities; (ii) the location, duration, frequency, and
intensity of his or her symptoms; (iii) any precipitating and aggravating factors; (iv) the type,
dosage, effectiveness, and side effects of any medications taken; (v) treatment other than
medication used to relieve the claimant's symptoms; (vi) any measures used to relieve his or her
symptoms; and (vii) other factors concerning functional limitations and restrictions resulting
from the claimed symptoms when evaluating a claimant's credibility. 20 C.F.R. §
404.1529(c)(3)(i)-(vii); SSR 96-7p, 1996 WL 374186, at *3 (S.S.A. 1996). 40 The ALJ is not
required to "discuss all the factors, however, as long as the decision includes precise reasoning,
is supported by evidence in the case record, and clearly indicates the weight the ALJ gave to the
claimant's statements and the reasoning for that weight." Simmons v. Comm'r of Soc. Sec., 103
F. Supp. 3d 547, 569 (S.D.N.Y. 2015) (internal quotation marks and citation omitted).
40
SSR 96-7p was superseded by SSR 16-3p, 2016 WL 1119029 (S.S.A. 2016), effective
March 16, 2016.
43
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"It is the role of the Commissioner, not the reviewing court, 'to resolve evidentiary
conflicts and to appraise the credibility of witnesses,' including with respect to the severity of a
claimant's symptoms." Cichocki, 534 F. App'x at 75 (quoting Carroll v. Sec'y of Health &
Human Servs., 795 F.2d 638, 642 (2d Cir. 1983)). "While it is not sufficient for the [ALJ] to
make a single, conclusory statement that the claimant is not credible or simply to recite the
relevant factors, remand is not required where the evidence of record permits us to glean the
rationale of an ALJ's decision[.]" Id. at 76 (internal quotation marks and citations omitted).
Where an ALJ provides specific reasons for finding a claimant's testimony not credible, the
ALJ's credibility determination "is generally entitled to deference on appeal." Selian, 708 F.3d at
420 (citations omitted); see Tejada, 167 F.3d at 775-76 (upholding ALJ's credibility
determination, citing with approval Pascariello v. Heckler, 621 F. Supp. 1032, 1036 (S.D.N.Y.
1985), in which the district court noted "that after weighing objective medical evidence, the
claimant's demeanor, and other indicia of credibility, the ALJ, in resolving conflicting evidence,
may decide to discredit the claimant's subjective estimation of the degree of impairment."). "If
the [Commissioner's] findings are supported by substantial evidence, the court must uphold the
ALJ's decision to discount a claimant's subjective complaints of pain." Aponte v. Sec., Dep't of
Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984).
Here, the ALJ acknowledged that Plaintiff's impairments could cause the alleged
symptoms, but concluded that Plaintiff's statements concerning the intensity, persistence, and
limiting effects of these symptoms were "not entirely credible for the reasons explained in this
decision." AR at 28. The ALJ noted that the "medical evidence shows the claimant has a back
and shoulder impairment which causes work related functional limitations but the evidence does
44
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not show his impairments would be severe enough to prevent him from performing all work
activity." Id. at 29. The ALJ then proceeded through a detailed consideration and analysis of the
objective medical evidence in the record, which showed overall improvement in Plaintiff's
condition over time. Id. at 29-31. Although the ALJ did not expressly consider each factor listed
in the regulations, he addressed those that were relevant to Plaintiff's claim. Thus, the ALJ noted
the alleviative effects of medication and physical therapy, as reflected in Plaintiff's progress
notes. Id. at 31; see 20 C.F.R. §§ 404.1529(c)(3)(iv),(v) (SSA considers medication taken and
other treatment received in evaluating credibility). He also cited Plaintiff's testimony as to his
ability to perform numerous activities of daily living, such as grocery shopping, cooking,
cleaning his apartment, reading, watching television, and taking public transportation by himself,
which provided further support for the ALJ's conclusion that Plaintiff was not precluded from all
work activity. Id. at 32; see 20 C.F.R. § 404.1529(c)(3)(i) (SSA considers evidence of claimant's
daily activities in evaluating credibility).
Accordingly, the Court finds no error in the ALJ's credibility analysis, as it was supported
by substantial evidence, relied upon the relevant factors, and was set forth with "sufficient
specificity to permit intelligible plenary review of the record." Williams ex rel. Williams v.
Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988) (citation omitted); see Cichocki, 534 F. App'x at 76
("Because the ALJ thoroughly explained his credibility determination and the record evidence
permits us to glean the rationale of the ALJ's decision, the ALJ's failure to discuss those factors
not relevant to his credibility determination does not require remand.").
45
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CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (ECF # 18) is
DENIED, and the Commissioner's motion for judgment on the pleadings (ECF # 21) is
GRANTED. The Clerk of the Court is directed to close the case.
Dated: July 27, 2020
White Plains, New York
SO ORDERED,
_______________________
Lisa Margaret Smith
United States Magistrate Judge
Southern District of New York
46
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