Hussion v. Commissioner of Social Security

Filing 18

DECISION AND ORDER: The plaintiff's motion for judgment on the pleadings, Docket Item 13, is DENIED, and the Commissioner's cross-motion for judgment on the pleadings, Docket Item 16, is GRANTED. The complaint is DISMISSED, and the Clerk of the Court shall close the file. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 7/29/2022. (WMH)Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HEATHER H., 1
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,

20-CV-1521-LJV
DECISION & ORDER

Defendant.

On October 20, 2020, the plaintiff, Heather H. (“Heather”), brought this action
under the Social Security Act (“the Act”). She seeks review of the determination by the
Commissioner of Social Security (“Commissioner”) that she was not disabled. Docket
Item 1. On September 14, 2021, Heather moved for judgment on the pleadings, Docket
Item 13; on February 11, 2022, the Commissioner responded and cross-moved for
judgment on the pleadings, Docket Item 16; and on March 25, 2022, Heather replied,
Docket Item 17.
For the reasons stated below, this Court denies Heather’s motion and grants the
Commissioner’s cross-motion. 2

To protect the privacy interests of Social Security litigants while maintaining
public access to judicial records, this Court will identify any non-government party in
cases filed under 42 U.S.C. § 405(g) only by first name and last initial. Standing Order,
Identification of Non-government Parties in Social Security Opinions (W.D.N.Y. Nov. 18,
2020).
1

This Court assumes familiarity with the underlying facts, the procedural history,
and the decision of the Administrative Law Judge (“ALJ”) and will refer only to the facts
necessary to explain its decision.
2

STANDARD OF REVIEW
“The scope of review of a disability determination . . . involves two levels of
inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first
decide whether [the Commissioner] applied the correct legal principles in making the
determination.” Id. This includes ensuring “that the claimant has had a full hearing
under the . . . regulations and in accordance with the beneficent purposes of the Social
Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (alterations omitted)
(quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, the court “decide[s]
whether the determination is supported by ‘substantial evidence.’” Johnson, 817 F.2d at
985 (quoting 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.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Where there is a
reasonable basis for doubt whether the ALJ applied correct legal principles, application
of the substantial evidence standard to uphold a finding of no disability creates an
unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to the correct legal principles.” Johnson, 817 F.2d at
986.
DISCUSSION
Heather argues that the ALJ erred in discounting the opinions of Peter E.
Shields, M.D., Heather’s treating physician and orthopedic surgeon, while affording the
opinion of Hongbiao Liu, M.D., a consultative examiner, significant weight. Docket Item
2

13-1 at 11. This Court disagrees and therefore affirms the Commissioner’s finding of no
disability.
When determining a claimant’s residual functional capacity (“RFC”), 3 an ALJ
must evaluate every medical opinion received. 20 C.F.R. § 416.927(c). But an ALJ
generally should give greater weight to the medical opinions of treating sources—
physicians, psychologists, optometrists, podiatrists, and qualified speech-language
pathologists who have “ongoing treatment relationship[s]” with the claimant—because
those medical professionals are in the best positions to provide “detailed, longitudinal
picture[s] of [the claimant’s] medical impairment[s].” See 20 C.F.R. § 416.927(c)(2); see
also Genier v. Astrue, 298 F. App’x 105, 108 (2d Cir. 2008) (summary order). In fact, a
treating physician’s opinion is entitled to controlling weight so long as it is “wellsupported [sic] 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. § 416.927(c)(2).
Before an ALJ may give less-than-controlling weight to a treating source’s
opinion, the ALJ must “explicitly consider, inter alia: (1) the frequency, 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.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)
(alterations and internal quotation marks omitted). These are the so-called “Burgess
A claimant’s RFC “is the most [she] can still do despite [her] limitations,” 20
C.F.R. § 416.945(a)(1), “in an ordinary work setting on a regular and continuing basis,”
see Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8P, 1996 WL
374184, at *2 (July 2, 1996)). “A ‘regular and continuing basis’ means 8 hours a day,
for 5 days a week, or an equivalent work schedule.” Id.
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factors” from Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008). Estrella v. Berryhill, 925
F.3d 90, 95 (2d Cir. 2019). “An ALJ’s failure to ‘explicitly’ apply the Burgess factors
when assigning weight” to a treating source opinion “is a procedural error.” Id. at 96
(citing Selian v. Astrue, 708 F.3d 409, 419-20 (2d Cir. 2013) (per curiam)).
The ALJ in this case considered two opinions from Heather’s treating orthopedic
surgeon, Dr. Shields. First, the ALJ considered Dr. Shields’s November 2013 opinion
that Heather was “disabled.” Docket Item 11 at 246-47, 456. The ALJ afforded this
opinion “some weight” because, while it had some probative value for the period
between Heather’s two hip surgeries, it was conclusory. 4 Id. at 456. Second, the ALJ
considered a March 2016 joint opinion from Dr. Shields and D. Dudziak, 5 PA-C—more
specifically, a physical RFC questionnaire—which described Heather’s prognosis as
“poor” due to bilateral avascular necrosis of her hips. Id. at 436-40, 456-57. The joint
opinion found that Heather could walk less than one city block without rest or severe

Heather argues primarily about Dr. Shields’s 2016 opinion and does not focus
on Dr. Shields’s November 2013 opinion. See Docket Item 13-1 at 11-18. But to the
extent that she argues that the ALJ erred in weighing the 2013 opinion, this Court
disagrees. The 2013 opinion found that Heather was “disabled,” and opinions on the
ultimate issue of disability—an issue reserved for determination by the Commissioner—
are not even considered medical opinions. See Michael E. v. Comm’r of Soc. Sec.,
2021 WL 1087928, at *4 (W.D.N.Y. Mar. 22, 2021); see also Greek, 802 F.3d at 376
(“[A treating physician’s] conclusion of disability was itself not entitled to any weight
because only the Commissioner can make the final determination of disability under the
Social Security Act.”). Nevertheless, the ALJ still must analyze what is behind the
treating physician’s opinion of disability, see Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999) (The fact that the “ultimate finding of whether a claimant is disabled” is “reserved
to the Commissioner . . . means that the Social Security Administration considers the
data that physicians provide but draws its own conclusions as to whether those data
indicate disability.” (internal quotation marks omitted)), and the ALJ did exactly that
here. See Docket Item 11 at 453, 456.
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5

PA-C Dudziak’s first name is not included in the record, but his first initial is.
4

pain; could sit for only thirty minutes at a time; could stand for only fifteen minutes at a
time; and could sit, stand, and walk for less than two hours in an eight-hour workday.
Id. at 437-38. Dr. Shields and PA-C Dudziak also concluded that Heather could not sit
for a prolonged period, could rarely climb stairs, could never crouch or climb ladders,
and is likely to experience “good days” and “bad days” due to her impairments. Id. at
438-39. The ALJ assigned only “some weight” to the joint opinion because it was
inconsistent with Heather’s activities of daily living, Dr. Shields’s “own reports,” and Dr.
Liu’s more recent consultative opinion. 6 See id. at 456-57.
In assigning the joint opinion some weight, the ALJ explicitly addressed all four
Burgess factors. For example, the ALJ noted that Dr. Shields was Heather’s “hip
surgeon” and “specialist from 2012 to October 2015,” that he had a “relatively frequent[]
treatment relationship” with her, and that he had performed two surgeries on Heather.
Id. at 456. The ALJ also noted that Heather stopped seeing Dr. Shields in October
2015. Id. at 452. He explained that although Heather testified at her hearing that “she
stopped going to Excelsior”—Dr. Shields’s group—“because there was nothing else
they could do for her,” Dr. Shields’s treatment notes show that further treatment options
were discussed with Heather. Id. The ALJ thus explicitly addressed the “frequency,
length, nature, and extent of treatment” and whether Dr. Shields is a specialist. See
Greek, 802 F.3d at 375.
The ALJ also explicitly considered the “amount of medical evidence supporting
the opinion” and the “consistency of the opinion with the remaining medical evidence.”
The ALJ correctly noted that PA-C Dudziak is not an acceptable medical source
but still considered the joint opinion as the opinion of a treating source because Dr.
Shields co-authored it. See Docket Item 11 at 456.
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See id. For example, the ALJ noted that the joint opinion was not “internally consistent
[with Dr. Shields’s] own reports, which typically revealed few findings other than
tenderness to palpation over the trochanteric bursal area and pain free passive range of
motion.” Docket Item 11 at 457. Moreover, the ALJ noted that the joint opinion was
inconsistent with Heather’s “wide-range of activities of daily living acknowledged at the
hearing and noted in the records,” id., including doing laundry in the basement once or
twice a week, id. at 450; caring for her eleven-year-old son and multiple pets, id. at 451;
preparing full meals daily; id. at 452, performing light housework for short periods, id.;
and shopping for groceries, id. at 451-52. Likewise, the ALJ found that the joint opinion
was not supported by Heather’s course of treatment—specifically her decision to stop
seeking specialized treatment in late 2015. Id. at 457. So the ALJ explained in some
detail why the lack of evidence supporting the opinion and the opinion’s inconsistency
with other evidence resulted in the weight he assigned.
The ALJ also noted that the joint opinion was inconsistent with the consultative
opinion of Dr. Liu, “who [had] conducted a thorough review more recently.” Id. 7 For
example, the ALJ noted that while the joint opinion indicated that Heather could sit for

In his November 2019 consultative opinion, Dr. Liu identified Heather’s
prognosis as “stable” and concluded that Heather had “mild to moderate limitation[s] for
prolonged walking, bending, kneeling, squatting, lifting, carrying, overhead reaching,
prolonged sitting, standing, and stair climbing.” Docket Item 11 at 749. Specifically, Dr.
Liu noted that Heather could lift and carry up to ten pounds continuously, up to twenty
pounds frequently, up to fifty pounds occasionally, but never more than fifty pounds. Id.
at 751. He indicated that Heather could sit and stand for one hour at a time and two
hours total over an eight-hour day, and that she could walk for two hours at a time and
four hours total. Id. at 752. Dr. Liu also noted that Heather could occasionally climb
stairs and ramps but never climb ladders or scaffolds, could frequently kneel, and could
occasionally crouch and crawl. Id. at 754. He further indicated that Heather could
frequently reach, push, and pull. Id. at 753.
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only thirty minutes at a time and stand for only fifteen minutes at a time, id. at 456, Dr.
Liu’s opinion—rendered years later—found that Heather now could sit and stand for up
to one hour at a time, id. at 458. Similarly, the ALJ noted that while the joint opinion
said that Heather “could rarely lift less than [ten] pounds and never any heavier weight,”
id. at 456, Dr. Liu more recently opined that Heather could occasionally lift up to fifty
pounds, frequently lift up to twenty pounds, and continuously lift up to ten pounds, id. at
458.
The ALJ thus explicitly considered all four Burgess factors before assigning only
some weight to the joint opinion. But even if the ALJ had not explicitly addressed the
Burgess factors, this Court still would not revisit the ALJ’s determination, because the
ALJ so carefully reviewed all the medical evidence and opinions in the record. For
example, in formulating Heather’s RFC, the ALJ gave “significant weight” to most of Dr.
Liu’s opinion, id., and gave “some weight” to the opinions of Dr. Shields, id. at 455-57,
as well as to the opinions of two other healthcare providers, id. at 455, 457-58. 8 The

In formulating Heather’s RFC, the ALJ gave “some weight” to the opinions of
Christopher Beney, M.D., and Samuel Balderman, M.D., Docket Item 11 at 455, 457-58,
and “little weight” to the opinion of Michael Ostolski, N.P., id. at 458, 770-72. In his
September 2013 opinion, Dr. Beney wrote that Heather was “unable to wear [an] ankle
bracelet due to significant leg edema and cannot do community service” until
September 19, 2013. Id. at 241. The ALJ afforded this opinion “some weight” because,
although Dr. Beney had a previous treatment relationship with Heather as her primary
care physician, he was not a specialist. Id. at 455. The ALJ also explained that Dr.
Beney’s opinion was inconsistent with Heather’s reported activities of daily living, Dr.
Beney’s own treatment notes, and the findings of other healthcare providers “that
revealed mostly normal gait, normal strength, lack of edema, and no need for an
assistive device.” Id. at 455-56. The ALJ further noted that the opinion was “clearly
intended to be temporary in nature” and was conclusory. Id. at 455. Dr. Balderman’s
January 2014 opinion indicated that Heather had a “marked limitation [in] kneeling,
climbing, and prolonged walking due to right hip pain” and that she could be reevaluated
six months after her right total hip replacement. Id. at 271. The ALJ gave this opinion
only “some weight” because it was rendered before Heather’s second hip replacement
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ALJ explained in detail why he afforded those weights to the various opinions, and he
cited medical evidence in support of his conclusions. Id. at 455-58. So even if the ALJ
had erred in not explicitly addressing each of the Burgess factors, this Court would have
been satisfied that “the substance of the treating physician rule was not traversed” and
still would have affirmed. See Estrella, 925 F.3d at 95-96 (citing Halloran v. Barnhart,
362 F.3d 38, 33 (2d Cir. 2004)) (if substance of treating physician rule is met, ALJ’s
decision must be affirmed even if ALJ did not “explicitly” consider each Burgess factor);
see also Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (declining remand where
“application of the correct legal principles to the record could lead only to the same
conclusion” (alterations omitted)).
The ALJ also incorporated the limitations in the various opinions into Heather’s
RFC. For example, the ALJ limited Heather to sitting for one hour continuously and for
two hours total, id. at 449, a limitation consistent with the opinion of Dr. Liu, see id. at
752 (Dr. Liu’s opinion that Heather can sit for one hour continuously and two hours
total). The ALJ found that Heather can “frequently reach, push, and pull,” id. at 449,
which is consistent with Dr. Shields’s and PA-C Dudziak’s opinion that Heather does not
“have significant limitations with reaching, handling or fingering,” id. at 439.

and was inconsistent with more recent record evidence, including “relatively benign
examination findings,” Heather’s activities of daily living, and Dr. Liu’s consultative
opinion. Id. at 457-58. Nurse practitioner Ostolski’s October 2019 opinion found that
Heather was “unable to work what[soever].” Id. at 770. The ALJ afforded this opinion
“little weight” because it was unclear whether it was Heather’s own statement or a
medical opinion, because it was conclusory, because it was not rendered by an
acceptable medical source, and because it was inconsistent with Heather’s activities of
daily living. Id. at 458.
8

Indeed, the RFC is either consistent with or more restrictive than the opinion of
Dr. Liu, the physician who examined Heather most recently, in all respects. 9 For
example, the ALJ adopted Dr. Liu’s opinion that Heather could lift and carry up to ten
pounds continuously, twenty pounds frequently, and up to fifty pounds occasionally. See
id. at 449 (RFC limiting Heather to lifting and carrying “up to [fifty] pounds occasionally,
[twenty] pounds frequently, and less than [ten] pounds continuously”), 751 (same in Dr.
Liu’s opinion). The ALJ also found that Heather occasionally can climb stairs and
ramps but never can climb ladders, ropes, or scaffolds, id. at 450, consistent with Dr.
Liu’s opinion about Heather’s ability to perform these activities, see id. at 754.
And to the extent that the ALJ favored the opinion of a consultant over the
opinion of a treating physician, that was not error under the unusual circumstances
here. To be sure, the Second Circuit has cautioned against “rely[ing] heavily on the
findings of consultative physicians after a single examination.” See, e.g., Selian, 708
F.3d at 419. But here, Heather had not seen her treating physician—or any other
specialist for that matter—since October 2015. Docket Item 11 at 452. Without any
records from Heather’s treating physician for nearly five years, the ALJ reasonably
looked to the consultative examiner who had performed a more recent examination and
rendered a more recent opinion. There was nothing wrong with that. See Merrit v.
Colvin, 142 F. Supp. 3d 266, 273 (N.D.N.Y. 2015) (ALJ did not err in assigning lessThe RFC was even more restrictive than Dr. Liu suggested. For example, while
the RFC limited Heather to kneeling only occasionally, Docket Item 11 at 450, Dr. Liu
opined that Heather could kneel frequently, id. at 754. And while the RFC limited
Heather to stooping only occasionally, id. at 450, Dr. Liu opined that Heather could
stoop continuously, id. at 754. The RFC also said that Heather cannot work at
unprotected heights, id. at 450, which is more restrictive than Dr. Liu’s opinion that
Heather can work continuously at unprotected heights, id. at 755.
9

9

than-controlling weight to treating physician’s opinion when treating physician had not
seen claimant for three years); Hamblin v. Apfel, 7 F. App’x 449, 450-51 (6th Cir. 2001)
(more recent opinion by another physician discounted treating physician’s “outdated”
opinion rendered approximately five years before).
Unless an ALJ can never discount a treating physician’s opinion in favor of a
consultant’s, the ALJ did not err here. See generally Diaz v. Shalala, 59 F.3d 307, 313
n.5 (2d Cir. 1995) (“[T]he regulations . . . permit the opinions of non[-]examining sources
to override treating sources’ opinions provided they are supported by evidence in the
record.”); see also Georgina W. v. Comm’r of Soc. Sec., 2021 WL 2809553, at *10
(W.D.N.Y. July 6, 2021) (citing Colbert v. Comm’r of Soc. Sec., 313 F. Supp. 3d 562,
577 (S.D.N.Y. 2018)) (“[I]t is also generally accepted that a consultative examiner’s
opinion may be accorded greater weight than a treating source’s opinion where the ALJ
finds it more consistent with the medical evidence”). Especially when a claimant has
not seen her specialist treating physician for several years—and when the opinion of
that physician therefore may well be outdated—the ALJ acts within his discretion in
relying on the more recent, well-supported opinion of a consultant. In fact, that is
exactly what the ALJ should do. 10 See Hamblin, 7 F. App’x at 451-52.
Finally, even if this Court disagreed with the ALJ’s conclusion, it still would be
compelled to “defer to the Commissioner’s resolution of conflicting evidence” because a

This case has been remanded by this Court with instructions that the ALJ
should obtain complete records from a treating source and explicitly apply the treating
physician rule. See Docket Item 11 at 444. On remand, the Appeals Council instructed
the ALJ, inter alia, to offer the claimant a new hearing. Id. at 444-45. As the ALJ noted
in his decision on remand, see id. at 445, he carefully followed those instructions, see
id. at 455-57.
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court can reject an ALJ’s findings “only if a reasonable factfinder would have to
conclude otherwise.” Morris v. Berryhill, 721 F. App’x 25, 29 (2d Cir. 2018) (summary
order); see also Krull v. Colvin, 669 F. App’x 31, 32 (2d Cir. 2016) (summary order)
(“[The plaintiff]’s disagreement is with the ALJ’s weighing of the evidence, but the
deferential standard of review prevents [the court] from reweighing it.”). In other words,
if substantial evidence in the record supports the ALJ’s determination, the Court must
affirm that conclusion. See Davila-Marrero v. Apfel, 4 F. App’x 45, 46 (2d Cir. 2001)
(summary order) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)). And that
is the case here.
In sum, the ALJ properly applied the Burgess factors and articulated his
reasoning in affording Dr. Shields’s opinions only “some weight,” and he appropriately
formulated Heather’s RFC in light of all the evidence in the record, see 20 C.F.R. §
416.927(c). For that reason, the ALJ’s decision was neither contrary to the substantial
evidence in the record nor the result of any legal error. And although this Court has
sympathy for Heather and the hardships that must stem from her impairments, this
Court cannot and will not disturb the ALJ’s considered judgment.
CONCLUSION
For the reasons stated above, Heather’s motion for judgment on the pleadings,
Docket Item 13, is DENIED, and the Commissioner’s cross-motion for judgment on the
pleadings, Docket Item 16, is GRANTED. The complaint is DISMISSED, and the Clerk
of the Court shall close the file.

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SO ORDERED.
Dated:

July 29, 2022
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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