Wahler v. Commissioner of Social Security

Filing 20

DECISION AND ORDER denying 13 Motion for Judgment on the Pleadings; granting 15 Motion for Judgment on the Pleadings. Signed by Hon. Elizabeth A. Wolford on 6/29/2020. (KAC)-CLERK TO FOLLOW UP-

Case 1:19-cv-00549-EAW Document 20 Filed 06/29/20 Page 1 of 18

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
JOAN WAHLER,
Plaintiff,
DECISION AND ORDER
v.
1:19-CV-00549 EAW
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________

INTRODUCTION
Represented by counsel, plaintiff Joan Wahler (“Plaintiff”) brings this action
pursuant to Title II of the Social Security Act (the “Act”), seeking review of the final
decision of the Commissioner of Social Security (the “Commissioner,” or “Defendant”)
denying her application for disability insurance benefits (“DIB”). (Dkt. 1). This Court has
jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). 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 (Dkt. 13; Dkt. 15), and Plaintiff’s reply (Dkt. 18). For
the reasons discussed below, the Commissioner’s motion (Dkt. 15) is granted and
Plaintiff’s motion (Dkt. 13) is denied.

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BACKGROUND
Plaintiff protectively filed her application for DIB on July 21, 2015. (Dkt. 5 at 14,
96). 1 In her application, Plaintiff alleged disability beginning December 9, 2011, due to
back injury, uncontrolled type 2 diabetes, neuropathy in hands and feet, glaucoma, a torn
rotator cuff in both shoulders, anxiety, and stenosis. (Id. at 14, 96-97). Plaintiff’s
application was initially denied on September 30, 2015. (Id. at 14, 106). At Plaintiff’s
request, a hearing was held before administrative law judge (“ALJ”) Bryce Baird in
Buffalo, New York, on January 30, 2018. (Id. at 14, 47-95). At the hearing, Plaintiff’s
counsel amended the alleged onset date to March 4, 2014. (Id. at 53). On May 15, 2018,
the ALJ issued an unfavorable decision. (Id. at 11-28). Plaintiff requested Appeals Council
review; her request was denied on February 26, 2019, making the ALJ’s determination the
Commissioner’s final decision. (Id. at 5-10). This action followed.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the [Social Security Administration (“SSA”)], this

Court is limited to determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct legal standard.” Talavera
v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C.
§ 405(g). The Act holds that a decision by the Commissioner is “conclusive” if it is

1

When referencing the page number(s) of docket citations in this Decision and Order,
the Court will cite to the CM/ECF-generated page numbers that appear in the upper
righthand corner of each document.
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supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)
(quotation omitted). It is not the Court’s function to “determine de novo whether [the
claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation
omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990) (holding that review of the Secretary’s decision is not de novo and that the
Secretary’s findings are conclusive if supported by substantial evidence). However, “[t]he
deferential standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003)
(citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
II.

Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant

is disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467,
470-71 (1986). At step one, the ALJ determines whether the claimant is engaged in
substantial gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not
disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an
impairment, or combination of impairments, that is “severe” within the meaning of the Act,
in that it imposes significant restrictions on the claimant’s ability to perform basic work
activities. Id. § 404.1520(c). If the claimant does not have a severe impairment or

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combination of impairments, the analysis concludes with a finding of “not disabled.” If
the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or
medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of
Regulation No. 4 (the “Listings”). Id. § 404.1520(d). If the impairment meets or medically
equals the criteria of a Listing and meets the durational requirement (id. § 404.1509), the
claimant is disabled. If not, the ALJ determines the claimant’s residual functional capacity
(“RFC”), which is the ability to perform physical or mental work activities on a sustained
basis, notwithstanding limitations for the collective impairments. See id. § 404.1520(e).
The ALJ then proceeds to step four and determines whether the claimant’s RFC
permits the claimant to perform the requirements of his or her past relevant work. Id.
§ 404.1520(f). If the claimant can perform such requirements, then he or she is not
disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the
burden shifts to the Commissioner to show that the claimant is not disabled.

Id.

§ 404.1520(g). To do so, the Commissioner must present evidence to demonstrate that the
claimant “retains a residual functional capacity to perform alternative substantial gainful
work which exists in the national economy” in light of the claimant’s age, education, and
work experience. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted);
see also 20 C.F.R. § 404.1560(c).

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DISCUSSION
I.

The ALJ’s Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step

sequential evaluation set forth in 20 C.F.R. § 404.1520. Initially, the ALJ determined that
Plaintiff last met the insured status requirements of the Act on December 31, 2016. (Dkt.
5 at 16). At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful work activity from her amended alleged onset date of March 3, 2014, through her
date last insured of December 31, 2016. (Id. at 17).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of:
obesity, degenerative disc disease of the lumbar spine, diabetes with lower extremity
neuropathy, carpal tunnel syndrome with history of left-side carpal tunnel release, left
should impingement, and glaucoma. (Id.). The ALJ also found that Plaintiff suffered from
the non-severe impairment of diabetic retinopathy. (Id.).
At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of any Listing.
(Id.). The ALJ particularly considered the criteria of Listings 1.02, 1.04, and 11.14 in
reaching his conclusion. (Id. at 17-18).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC
to perform light work as defined in 20 C.F.R. § 404.1567(b), with the additional limitations
that Plaintiff can:
lift and carry 20 pounds occasionally and 10 pounds frequently. She can sit
for up to 6 hours in an 8-hour day and can stand or walk for up to 4 hours in
an 8-hour day. She can never operate foot controls bilaterally. She can
occasionally climb ramps or stair but can never climb ladders, ropes, or
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scaffolds. She can occasionally balance, stoop, kneel, and crouch but can
never crawl. She can frequently reach, overhead reach, handle, and finger
bilaterally. She can never face exposure to excessive vibration or to hazards,
such as unprotected heights or moving machinery. She could not perform a
job requiring driving a vehicle at night.
(Id. at 18). At step four, the ALJ found that Plaintiff was capable of performing her past
relevant work as an office clerk. (Id. at 22).
The ALJ also made a step five determination in the alternative, relying on the
testimony of a vocational expert (“VE”) to conclude that, considering Plaintiff’s age,
education, work experience, and RFC, there were jobs that exist in significant numbers in
the national economy that Plaintiff could perform, including the representative occupations
of parking lot attendant, children’s attendant, furniture renter, file clerk, and general clerk.
(Id. at 23-24). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the
Act. (Id. at 24).
II.

The Commissioner’s Determination Is Supported by Substantial Evidence and
Free from Reversible Error
Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the

Commissioner, arguing: (1) the ALJ failed to explain his finding at step three of the
sequential analysis that Plaintiff’s impairment of degenerative disc disease did not meet
the requirements of Listing 1.04A, and (2) the ALJ failed to properly evaluate the medical
opinion evidence of record when making his RFC determination. The Court has considered
these arguments and, for the reasons discussed below, finds them to be without merit.
A.

The ALJ’s Step Three Finding Is Free from Reversible Error

“Plaintiff has the burden of proof at step three to show that her impairments meet or
medically equal a Listing.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 272 (N.D.N.Y.
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2009), adopted, 614 F. Supp. 2d 252 (N.D.N.Y. 2009). “To match an impairment in the
Listings, the claimant’s impairment must meet all of the specified medical criteria of a
listing.” Loescher v. Berryhill, No. 16-CV-300-FPG, 2017 WL 1433338, at *3 (W.D.N.Y.
Apr. 24, 2017) (internal quotation and citation omitted). “If a claimant’s impairment
manifests only some of those criteria, no matter how severely, such impairment does not
qualify.” Rockwood, 614 F. Supp. 2d at 272 (internal quotations and citations omitted).
An ALJ is required to provide an explanation “as to why the claimant failed to meet
or equal the Listings, ‘[w]here the claimant’s symptoms as described by the medical
evidence appear to match those described in the Listings.’” Rockwood, 614 F. Supp. 2d at
273 (alteration in original) (quoting Kuleszo v. Barnhart, 232 F. Supp. 2d 44, 52 (W.D.N.Y.
2002)). “[I]t is the ALJ’s responsibility . . . to build an accurate and logical bridge from
the evidence to [his or her] conclusion to enable a meaningful review,” and “[t]he Court
cannot . . . conduct a review that is both limited and meaningful if the ALJ does not state
with sufficient clarity the legal rules being applied and the weight accorded the evidence
considered.” Loescher, 2017 WL 1433338, at *3 (internal quotations and citations omitted)
(second alteration in original). However, “[a]n ALJ’s unexplained conclusion [at step
three] of the analysis may be upheld where other portions of the decision and other ‘clearly
credible evidence’ demonstrate that the conclusion is supported by substantial evidence.”
Ryan v. Astrue, 5 F. Supp. 3d 493, 507 (S.D.N.Y. 2014) (citation omitted).
Plaintiff argues that the ALJ failed to analyze the factors under Listing 1.04A, and
instead recited the requirements of the Listing without applying the evidence to those
requirements. (Dkt. 13-1 at 24). Plaintiff also contends that the evidence of record shows
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that her lumbar disc injury meets all the requirements of Listing 1.04A, particularly the
consultative opinion rendered by Dr. Hongbiao Liu to which the ALJ gave great weight
(Id. at 25-26; see Dkt. 5 at 22).
Social Security regulations provide the following with regard to the requirements of
Listing 1.04A:
Listing 1.04(A) requires—in addition to a spinal disorder such as a herniated
disc, arthritis, degenerative disc disease, or a vertebral fracture—“[e]vidence
of nerve root compression characterized by neuro-anatomic distribution of
pain, limitation of motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex loss
and, if there is involvement of the lower back, positive straight-leg raising
test (sitting and supine).”
Scully v. Berryhill, 282 F. Supp. 3d 628, 635 (S.D.N.Y. 2017) (citing Listing 1.04A). The
SSA “has provided further guidance regarding the assessment of Listing 1.04(A) in the
form of an Acquiescence Ruling (‘AR’) issued in 2015.” Monsoori v. Comm’r of Soc. Sec.,
No. 1:17-CV-01161-MAT, 2019 WL 2361486, at *4 (W.D.N.Y. June 4, 2019); see SSAR
15-1(4), 80 Fed. Reg. 57418-02 (2015). Although ARs are guidance documents that do
not carry the full force of law, the Supreme Court has held that an agency’s interpretation
of its own regulations is entitled to substantial deference. See Kisor v. Wilkie, 139 S. Ct.
2400, 2419 (2019) (“[T]he Congress delegating regulatory authority to an agency intends
as well to give that agency considerable latitude to construe its ambiguous rules.”); Auer v.
Robbins, 519 U.S. 452, 462-63 (1997).
In AR 15-1(4), the SSA specifies “that for a disorder of the spine to meet listing
1.04A at step three in the sequential evaluation process, the claimant must establish the
simultaneous presence of all the medical criteria in paragraph A.” 80 Fed. Reg. at 57420.
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After these criteria are established, “the claimant must also show that this level of severity
continued, or is expected to continue, for a continuous period of at least 12 months.” Id.
In other words, “when the listing criteria are scattered over time, wax and wane, or are
present on one examination but absent on another, the individual’s nerve root compression
would not rise to the level of severity required by listing 1.04A.” Id. The Court follows
other courts in this District and finds that the SSA’s finding in AR 15-1(4) is entitled to
substantial deference. See Ramirez Morales v. Berryhill, No. 6:17-CV-06836-MAT, 2019
WL 1076088, at *4 (W.D.N.Y. Mar. 7, 2019) (“While the Court notes that the AR was
issued in response to the Fourth Circuit’s holding in Radford v. Colvin, 734 F.3d 288 (4th
Cir. 2013), that plaintiff could meet Listing 1.04(A) even though his relevant symptoms
were not always simultaneously present, the Second Circuit has not made a similar holding.
Accordingly, this Court will accord the policy position set forth in AR 15-1(4) substantial
deference.”); see also Atkins v. Colvin, No. 15-1168-JWL, 2016 WL 2989393, at *10-12
(D. Kan. May 24, 2016) (applying the policy position set forth in AR 15-1(4) rather than
the Fourth’s Circuit’s holding in Radford); Smith v. Colvin, No. 2:15-CV-00107-AA, 2016
WL 8711697, at *3-4 (D. Or. Feb. 5, 2016) (according substantial deference to AR
15-1(4)).
The Court has reviewed the medical record and the written determination, and finds
that the ALJ’s determination that Plaintiff did not meet or medically equal the listing
requirements for Listing 1.04A was supported by substantial evidence. The ALJ found
that Listing 1.04 was “not met or medically equaled because there is no evidence of nerve
root compression with the required characterizations.” (Dkt. 5 at 18). The evidence of
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record does not show that Plaintiff experienced all the criteria in Listing 1.04A for a
continuous period of at least 12 months—specifically, Plaintiff has not shown that she
experienced nerve root compression or had positive results for a straight leg test for a 12month period.
Plaintiff argues that she had a positive straight leg test during Dr. Liu’s examination
on September 28, 2015 (see Dkt. 5 at 362), and that in addition to being a requirement of
the listing, a positive straight leg test is sufficient to show nerve root compromise for
purposes of Listing 1.04A (Dkt. 13-1 at 25-26 & n.13). However, even if a positive straight
leg test was sufficient to show nerve root compromise, every other straight leg test of
record, including one performed just two weeks after Dr. Liu’s examination, was negative.
(See id. at 453, 477, 480, 483, 485-86, 489, 491, 503, 527, 529). Moreover, Plaintiff herself
conceded at her hearing that she did not meet the requirements of any listing, including
Listing 1.04A. (Dkt. 5 at 54). Accordingly, the Court finds the ALJ’s determination that
Plaintiff’s degenerative disc disease of the lumbar spine did not meet Listing 1.04A was
supported by substantial evidence. See Beall v. Colvin, No. 5:16-CV-92, 2017 WL
1155809, at *4 (N.D.N.Y. Mar. 27, 2017) (finding substantial evidence supported ALJ’s
determination that Plaintiff did not meet or medically equal Listing 1.04 where “sensory
exams and straight leg tests were largely normal”); Bushey v. Colvin, No. 8:13-CV-0777
GTS, 2014 WL 4854984, at *5 (N.D.N.Y. Sept. 30, 2014), aff’d, 607 F. App’x 114 (2d Cir.
2015) (holding “the record does not support a conclusion that Plaintiff meets Listing

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1.04A” where there were two tests with negative results within approximately one year of
the plaintiff’s diagnosis with radiculopathy).
Plaintiff argues that “the ALJ did not set forth any rationale or analysis of the
elements of Listing 1.04(A).” (Dkt. 13-1 at 27). The Court acknowledges that “the ALJ’s
evaluation of the Listing could have been more thorough,” but as discussed above finds
that “the evidence nonetheless establishes that [Plaintiff]’s impairment does not meet the
Listing, and remand is not required.” Kretovic v. Colvin, No. 13-CV-6257P, 2015 WL
1297875, at *23 (W.D.N.Y. Mar. 24, 2015); see Mallon v. Comm’r of Soc. Sec., No. 18CV-0712MWP, 2020 WL 263654, at *2 (W.D.N.Y. Jan. 17, 2020) (finding “any error at
step three was harmless” because the plaintiff did not identify “record evidence
demonstrating that he meets all elements of Listing 1.04, and indeed the record does not
contain such evidence”).
Plaintiff also argues that Dr. Liu’s exam, which the ALJ gave great weight to,
documents all the elements of Listing 1.04A. (Dkt. 13-1 at 26). However, as discussed
above, “when the listing criteria are scattered over time, wax and wane, or are present on
one examination but absent on another, the individual’s nerve root compression [does] not
rise to the level of severity required by listing 1.04A,” 80 Fed. Reg. at 57420, and every
other straight leg test in the record, including one within two weeks of Dr. Liu’s
examination, had negative results. 2 The presence of one positive straight leg test, even one

2

Plaintiff argues that there is no explicit 12-month duration requirement in Listing
1.04A, but does not acknowledge AR 15-1(4). (See Dkt. 18 at 6).
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in an opinion that was accorded great weight by the ALJ, does not nullify the requirement
that the listing criteria be present for at least 12 months.
Plaintiff also argues that even if her impairments do not meet Listing 1.04A, the
case must still be remanded to determine if her lumbar spine injury medically equals the
Listing. She contends that the absence of a straight leg test could be supplemented with
the December 4, 2015, EMG and nerve conduction studies of Plaintiff’s lower extremities.
(Dkt. 18 at 6-7; see Dkt. 5 at 508). However, even if these tests were considered, the
evidence of record would still not support a finding that Plaintiff’s impairments medically
equaled Listing 1.04A. SSA regulations provide that to be medically equivalent to a listing,
the impairment must be “at least equal in severity and duration to the criteria of any listed
impairment.” 20 C.F.R. § 404.1526(a) (emphasis added). The EMG and nerve conduction
studies were done a little over two months after Dr. Liu’s examination (see Dkt. 5 at 362,
508), and, as discussed repeatedly above, the duration requirement for Listing 1.04A is that
an impairment must last at least 12 months. Accordingly, the record does not support that
Plaintiff’s impairments medically equaled Listing 1.04A, and there was no reversible error
in the ALJ’s step three determination.
B.

The ALJ Properly Evaluated the Medical Opinions of Record

In deciding a disability claim, an ALJ is tasked with “weigh[ing] all of the evidence
available to make an RFC finding that [is] consistent with the record as a whole.” Matta
v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013). An ALJ’s conclusion need not “perfectly
correspond with any of the opinions of medical sources cited in his decision.” Id.
However, an ALJ is not a medical professional, and “is not qualified to assess a claimant’s
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RFC on the basis of bare medical findings.” Ortiz v. Colvin, 298 F. Supp. 3d 581, 586
(W.D.N.Y. 2018) (quotation omitted). “[A]s a result[,] an ALJ’s determination of RFC
without a medical advisor’s assessment is not supported by substantial evidence.” Dennis
v. Colvin, 195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016) (quotation omitted). In this case, the
ALJ considered the opinions of consultative examiner Dr. Liu and physical therapist
Elizabeth Stom (“PT Stom”) when assessing Plaintiff’s RFC. (Dkt. 5 at 22). In particular,
the ALJ gave great weight to Dr. Liu’s opinion, and little weight to the opinion of PT Stom.
(Id.).
In assessing a disability claim, an ALJ must consider and weigh the various medical
opinions of record. Pursuant to the Commissioner’s regulations:
the ALJ must consider various factors in deciding how much weight to give
to any medical opinion in the record, regardless of its source, including: (i)
the frequency of examination and the length, nature and extent of the
treatment relationship; (ii) the evidence in support of the . . . physician’s
opinion; (iii) the consistency of the opinion with the record as a whole; (iv)
whether the opinion is from a specialist; and (v) other factors brought to the
Social Security Administration’s attention that tend to support or contradict
the opinion.
Pike v. Colvin, No. 14-CV-159-JTC, 2015 WL 1280484, at *5 (W.D.N.Y. Mar. 20, 2015)
(quotation and alterations omitted).
Plaintiff contends that the ALJ erred in giving little weight to the opinion of PT
Stom in forming the RFC. (Dkt. 13-1 at 27-31). As a threshold matter, because physical
therapists are not acceptable medical sources pursuant to SSA regulations, their opinions
are not entitled to any particular weight under the regulations. See Brush v. Berryhill, 294
F. Supp. 3d 241, 257 (S.D.N.Y. 2018) (“Because a physical therapist is not an acceptable
medical source, this opinion is not due controlling weight.”). Nonetheless, and as with all
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the medical opinions of record, the ALJ was required to consider PT Stom’s opinion in the
context of the record as a whole.
PT Stom completed a functional capacity evaluation on June 26, 2014. (Dkt. 5 at
454-57). PT Stom noted that Plaintiff could walk for six minutes with an antalgic gait,
could lift and carry five pounds, and occasionally walk, stand, sit, push, pull, work
overhead, climb stairs, rotate her trunk repetitively, and balance on uneven surfaces. (Id.
at 455). She further stated that Plaintiff could frequently balance on even surfaces but
could not work while stooped over, and could not repetitively manipulate objects, push and
pull, or perform foot and ankle movements. (Id. at 456-57). PT Stom ultimately opined
that Plaintiff did not have the full capacity to perform medium work. (Id. at 457).
The ALJ considered PT Stom’s opinion and afforded it little weight. (Id. at 22).
The ALJ first noted that PT Stom was not an acceptable medical source under the
regulations or a treating provider. (Id.). Next, the ALJ noted that PT Stom’s opinion was
inconsistent with Dr. Liu’s, and that Dr. Liu is an acceptable medical source whose opinion
is more consistent with the overall record. (Id.). The ALJ further discussed that Plaintiff
was noted by PT Stom to have an antalgic gait, severe neuropathy of the hands, and poor
vision due to glaucoma, all of which were generally inconsistent with the Plaintiff’s “often
noted normal gait during treatment, unremarkable endocrinology visit examinations, and
generally mild eye doctor examination findings.” (Id.). These discrepancies, the ALJ
found, “call[ed] into question [Plaintiff]’s subjective presentation at this evaluation.” (Id.).
Plaintiff argues that it was improper for the ALJ to assign little weight to PT Stom’s
opinion based on her not being an acceptable medical source or treating provider. (Dkt.
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13-1 at 29; Dkt. 18 at 8-9). It is true that an ALJ may not disregard opinion evidence from
a physical therapist or “other source” solely because it was not authored by an acceptable
medical source or because of the absence of a treating relationship. See Canales v. Comm’r
of Soc. Sec., 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010) (holding that ALJ erred in
disregarding opinion of social worker simply because it was the opinion of an “other
source,” and “not on account of its content or whether it conformed with the other evidence
in the record”). However, in this case the ALJ did not discount PT Stom’s opinion solely
because she was a non-treating provider who is not an acceptable medical source; those
were only some of the factors discussed by the ALJ as reasons for giving PT Stom’s opinion
little weight. The ALJ also took into account the fact that PT Stom was a specialist by
recognizing that she was a Master’s-level physical therapist, and discussed how her opinion
was inconsistent with the record evidence. (Dkt. 5 at 22). It was not error for the ALJ to
consider the absence of a treating relationship between PT Stom or the fact that she is not
an acceptable medical source alongside the other factors discussed, and consideration of
those facts is in fact required by the regulations. See 20 C.F.R. § 404.1527(c).
Plaintiff also contends that the ALJ was incorrect in finding that PT Stom’s opinion
was inconsistent with Dr. Liu’s opinion and the medical record. (Dkt. 13-1 at 29-30; Dkt.
18 at 9-10). It is within the ALJ’s discretion to resolve genuine conflicts in the evidence,
Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002), and, in doing so, to “choose between
properly submitted medical opinions,” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998).
The Court has reviewed PT Stom’s opinion and Dr. Liu’s opinion and finds the ALJ’s
characterization is supported by substantial evidence. PT Stom reported that Plaintiff could
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only lift 5 pounds and occasionally sit, stand, walk, bend, and use her arms (Dkt. 5 at 45556), whereas Dr. Liu found that Plaintiff had normal muscle strength, range of motion, and
motor function in her neck, shoulders, elbows, forearms, wrists, hands, hips, knees, and
ankles, as well as could walk and stand normally with mild to moderate limitations in
prolonged walking, bending, and kneeling (id. at 361-63). Moreover, to the extent the two
opinions conflicted, it was within the ALJ’s discretion to resolve the conflict. See Martes
v. Comm’r of Soc. Sec., 344 F. Supp. 3d 750, 760 (S.D.N.Y. 2018) (“It is within an ALJ’s
discretion to resolve ‘genuine conflicts in the medical evidence.’” (quoting Veino, 312 F.3d
at 588)).
The Court has also reviewed the objective medical evidence of record, and finds the
ALJ’s conclusion that Dr. Liu’s opinion is more consistent with the overall record is also
supported by substantial evidence. The ALJ found that Dr. Liu’s opinion was generally
consistent with the record because the record documents Plaintiff’s pain, joint disorders,
and degenerative disc disease along with a noted lack of distress, normal gait, strength, and
range of extremity motion, as well as improved conditions with medication or surgery.
(Dkt. 5 at 22). The record shows that on May 26, 2016, Nurse Practitioner Kathy Kurtz
observed Plaintiff walked with a normal gait, stood normally, had normal muscle strength
in her arms and legs, and had normal neurological function. (Id. at 410). The record also
shows that Dr. Jack Cukierman, M.D. observed that Plaintiff did not have a gait disturbance
at appointments in August 2015 and November 2015. (Id. at 594, 583-85). Additionally,
the treatment notes of Dr. Tahir Qazi, M.D. state that Plaintiff’s back pain significantly
improved with medication and treatment (id. at 528), and that throughout the end of 2015
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and 2016 Plaintiff consistently walked with an antalgic but “borderline stable” gait and had
functional muscle strength throughout her body (id. at 476-77, 479-80, 485-86, 488-89,
491, 501, 503, 529).

Moreover, Plaintiff’s range of motion in her extremities was

consistently found to be normal. (Id. at 362-63, 414-15, 425, 443).
Plaintiff also disputes the ALJ’s finding that other evidence in the record called into
question Plaintiff’s subjective presentation of her orthopedic impairments at PT Stom’s
evaluation. (Dkt. 13-1 at 30). Plaintiff argues it is improper to discredit the orthopedic
opinions in PT Stom’s evaluation when the medical evidence that conflicted with her
opinion was regarding her hand neuropathy and poor vision. (Id.). However, the ALJ also
discussed that PT Stom noted Plaintiff had an antalgic gait, which was inconsistent with
Plaintiff’s “often noted normal gait during treatment” as detailed above. (Dkt. 5 at 22). In
other words, the ALJ also found that the orthopedic evidence of record conflicted with PT
Stom’s evaluation. Accordingly, the Court finds that the ALJ’s decision to afford PT
Stom’s opinion little weight was supported by substantial evidence. See Dumas v. Comm’r
of Soc. Sec., No. 04-CV-4625 (SLT), 2008 WL 4104685, at *4 (E.D.N.Y. Sept. 4, 2008)
(holding the ALJ did not err in refusing to give great weight to opinions that were “largely
inconsistent with a substantial portion of plaintiff’s medical records”).
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings (Dkt. 15) is granted and Plaintiff’s motion for judgment on the pleadings
(Dkt. 13) is denied. The Clerk of Court is directed to enter judgment and close this case.

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Case 1:19-cv-00549-EAW Document 20 Filed 06/29/20 Page 18 of 18

SO ORDERED.

________________________________
ELIZABETH A. WOLFORD
United States District Judge
Dated: June 29, 2020
Rochester, New York

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