Ball v. Berryhill

Filing 19

DECISION AND ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings; granting 17 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/2/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PATRICK BALL,
No. 6:17-cv-06312(MAT)
DECISION AND ORDER

Plaintiff,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
I.

Introduction
Patrick Ball (“Plaintiff”), represented by counsel, brings

this action pursuant to Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the Acting
Commissioner

of

Social

Security

(“Defendant”

or

“the

Commissioner”), denying his applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). The
Court has jurisdiction over the matter pursuant to 42 U.S.C.
§§ 405(g), 1383(c).
II.

Procedural Status
On

November

applications
November

15,

for

26,

DIB

2012.

2013,

and

SSI,

These

Plaintiff
alleging

claims

were

protectively
disability
denied

filed

beginning

initially

on

January 22, 2014. Plaintiff filed a written request for hearing on
January 30, 2014, which was held by Administrative Law Judge John
P.

Costello

(“the

ALJ”)

on

December

1,

2015,

in

Rochester,

New York. Plaintiff appeared with his attorney and testified, as
did Julie A. Andrews, an impartial vocational expert (“the VE”).
The ALJ considered Plaintiff’s claims de novo and issued an
unfavorable decision on January 16, 2016. (T.11-22).1 Applying the
five-step

sequential

evaluation,

20

C.F.R.

§§

404.1520(a),

416.920(a), the ALJ found that Plaintiff met the Act’s insured
status requirements through December 31, 2017, and had not engaged
in substantial gainful activity since November 15, 2012, the
alleged onset date. At step two, the ALJ found that Plaintiff had
the “severe” impairments of status post-left elbow injury in 1999,
cervical disc disease, and torn left shoulder labrum. At step
three, the ALJ determined that Plaintiff’s impairments did not meet
or medically equal any listed impairment, including Listing 1.02
(major dysfunction of a joint) and Listing 1.04 (disorders of the
spine). The ALJ next assessed Plaintiff as having the residual
functional capacity (“RFC”) to perform light work as defined in
20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he is able to
do no more than frequent turning of the head from side to side,
frequent extending and flexing of the neck, and lifting no greater
than 10 pounds. At step four, the ALJ determined that Plaintiff was
capable of performing his past relevant work as a machine operator.
The ALJ proceeded to make an alternative step five finding that,

1

Citations in parentheses
administrative transcript.

to

“T.”

-2-

refer

to

pages

in

the

certified

based on the VE’s testimony, a hypothetical person of Plaintiff’s
age and with his work experience and RFC, could perform the
representative jobs of Counter Clerk (Dictionary of Occupational
Titles (“DOT”) #249.366-010), an unskilled light exertion job, with
108,649 positions nationally; and Mail Clerk (DOT #204.687-026), an
unskilled light exertion job, with 164,563 positions nationally.2
Accordingly, the ALJ entered a finding of not disabled.
Plaintiff’s request for review by the Appeals Council was
denied on March 22, 2017, making the ALJ’s decision the final
decision of the Commissioner. Plaintiff timely commenced this
action.
III. Scope of Review
A

district

court

may

set

aside

the

Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error.
Commissioner’s

findings

“as

to

42 U.S.C. § 405(g) (stating the
any

fact,

if

supported

by

substantial evidence, shall be conclusive”). “Substantial evidence
means ‘such relevant evidence as a reasonable mind might accept as

2

The VE also testified that, with an additional limitation to the full range
of sedentary work, the same hypothetical person could work as an Order Clerk (DOT
#209.567-014, unskilled, sedentary); or Label Pinker (DOT #585.685-062,
unskilled, sedentary). (T. 87). If the hypothetical person could do no lifting
or carrying with the left arm, and only occasional fingering and handling with
his left hand, could only sit or stand for a maximum of two hours, and do no
lifting with the right arm, they could not perform any work. (Id.). If a worker
was off task 20% of the time in a day, they could not perform unskilled work.
(Id.).

-3-

adequate to support a conclusion.’” Shaw v. Chater, 221 F.3d 126,
131

(2d

Cir.

2000)

(quotation

omitted).

The

reviewing

court

nevertheless must scrutinize the whole record and examine evidence
that supports or detracts from both sides. Tejada v. Apfel, 167
F.3d 770, 774 (2d Cir. 1998) (citation omitted). “The 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) (citation omitted).
IV.

Discussion
A.

RFC Unsupported by Substantial Evidence Due to Failure to
Include Limitations on Reaching, Handling, or Fingering
(Plaintiff’s Point I)

Plaintiff contends that the ALJ, despite assigning significant
weight to the opinion of consultative physician Dr. Aharon Wolf,
did not adequately account for the limitations on “reaching,
handling, and fingering” which he contends were contained in
Dr. Wolf’s opinion. Plaintiff contends that this was reversible
error, because each job identified by the VE included at least
occasional reaching, handling, or fingering. (See Dkt #11-1, p. 10
of 17).
“Reaching,

handling,

fingering,

and

feeling

require

progressively finer usage of the upper extremities to perform
work-related activities.” Titles II & XVI: Capability to Do Other
Work-The Medical-Vocational Rules As A Framework for Evaluating
Solely Nonexertional Impairments, SSR 85-15,
-4-

1985 WL 56857, at *7

(S.S.A. 1985). “Reaching” is extending the hands and arms in any
directions; “handling” is seizing, holding, grasping, turning, or
otherwise working primarily with the whole hand or hands; and
“fingering” involves picking, pinching, or otherwise working with
the fingers. Id. SSR 85-15 states that reaching and handling are
“activities

required

in

almost

all

jobs.”

Id.

Therefore,

“[s]ignificant limitations of reaching or handling . . . may
eliminate a large number of occupations a person could otherwise
do.” Id. (emphasis supplied). “Significant limitations of reaching
or handling, therefore, may eliminate a large number of occupations
a person could otherwise do.” Id.
Under the Commissioner’s rules, if the ALJ’s “RFC assessment
conflicts with an opinion from a medical source, the adjudicator
must explain why the opinion was not adopted.” SSR 96–8p, 1996 WL
, at * (S.S.A. July 2, 1996).
On

January

10,

2014,

Dr.

Wolf

performed

a

consultative

physical examination of Plaintiff. (T.334-37). Plaintiff described
neck, left shoulder, and left elbow pain that he rated as 10 out of
10, as well as left arm and hand weakness with tingling and
numbness. Dr. Wolf’s clinical observations pertinent to Plaintiff’s
upper extremities were that Plaintiff had decreased cervical and
left shoulder range of motion (“ROM”) but

full ROM in his right

shoulder. Plaintiff had reduced left arm strength, but no muscle
atrophy

or

sensory

deficits.

He

-5-

had

normal

hand

and

finger

dexterity bilaterally, and he had no problems with fastening
buttons and zippers. For his medical source statement, Dr. Wolf
opined that Plaintiff had “moderate” limitations in the following:
lifting or repetitive activity with his left arm, grasping with his
left hand, climbing, and looking overhead. (T.337).
As an initial matter, the Court notes that Dr. Wolf did not
specifically refer to reaching, handling or fingering in his
medical

source

statement.

However,

“grasping,”

which

he

did

mention, is a sub-activity under “handling.” SSR 85-15, 1985 WL
56857, at *7. Nevertheless, it is not apparent to the Court how
Dr. Wolf’s opinion contradicts the ALJ’s RFC assessment. As noted
above, Dr. Wolf assigned “moderate” limitations in grasping, but
only on the left side. (T.337). Dr. Wolf did not assign any
limitations on “reaching” or “fingering.” SSR 85-15 notes that
“[s]ignificant limitations of reaching or handling . . . may
eliminate a large number of occupations a person could otherwise
do[,]” 1985 WL 56857, at *7, but the Commissioner does not define
“significant”

in

SSR

85-15

or

elsewhere

in

the

Regulations.

Plaintiff has not come forward with any support for the proposition
that “significant” as used by the Commissioner in SSR 85-15 is
somehow equivalent to “moderate.” Indeed, in common English usage,
“significant” and “moderate” may be considered antonyms.3 At the
very least, their ordinary dictionary definitions make it clear
3

http://www.thesaurus.com/browse/moderate (last accessed Apr. 30,

2018).

-6-

that they are not used interchangeably. Therefore, the Court
disagrees that Dr. Wolf’s opinion facially conflicts with the ALJ’s
RFC assessment.
Nonetheless, SSR 85-15 does recognizes that “[v]arying degrees
of limitations [in reaching, handling, and fingering] would have
different effects, and the assistance of a [vocational expert] may
be needed to determine the effects of the limitations.” 1985 WL
56857, at *7. Here, the ALJ sought input from a VE, but only asked
one

question

regarding

fingering

and

handling.

This

was

in

connection with the second hypothetical involving an individual who
was limited to sedentary work, with no lifting, only occasional
fingering and handling with the left hand, and only sitting or
standing for a maximum of 2 hours each in an 8-hour day. The VE
testified that there was no work such a hypothetical individual
could perform. (T.87). Plaintiff argues that the VE was not asked,
and

accordingly

offered

no

opinion

on,

how

an

“occasional”

limitation on fingering and handling (grasping) would erode his
occupational base with the limitations of first hypothetical, which
mirrored the ALJ’s eventual RFC finding.
The Court notes that Dr. Wolf did not opine as to a limitation
on fingering specifically. In fact, he observed that Plaintiff had
normal hand and finger dexterity bilaterally and had no problems
with fastening buttons and zippers, which provides evidences that
Plaintiff’s ability to finger was not impaired. Therefore, the

-7-

Court finds that the only relevant limitation that the ALJ arguably
omitted from the first hypothetical is Dr. Wolf’s “moderate”
limitation on handling (grasping) with the left hand.
As Plaintiff notes, his past relevant work required at least
frequent handling (grasping) or occasional fingering. See DOT,
Inserting-Machine Operator, DICOT 208.685-018 (G.P.O.), 1991 WL
671755 (4th ed. 1991) (stating that this job involves “[h]andling:
[f]requently

-

[e]xists

from

1/3

to

2/3

of

the

time”

and

“[f]ingering: [o]ccasionally - [e]xists up to 1/3 of the time. . .
”). Plaintiff argues that a “moderate” limitation on handling
(grasping) could make it impossible for him to perform “frequent”
handling, and the ALJ was required to obtain clarification from the
VE by posing a variation of the first hypothetical that took into
account

Dr.

Wolf’s

opinion

that

Plaintiff

had

a

“moderate”

limitation on left-hand handling (grasping). Assuming Plaintiff is
correct, the Court finds that any error was harmless because, as
discussed

further

below,

the

Commissioner

presented

other

substantial evidence to meet her step-five burden.
The relevant question at step five is whether the claimant is
capable of performing “any other work” that exists in the national
economy. 20 C.F.R. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g)
(emphasis supplied). “Both the regulations and case law make clear,
however, that it is the number of existing job positions, and not
the number of occupations, that the AL[J] must consider in deciding

-8-

whether there is a significant number of jobs.” Rodriguez v.
Astrue, No. 11 CIV. 6977 PAC DF, 2013 WL 3753411, at *13 (S.D.N.Y.
July 17, 2013) (citing 20 C.F.R. § 404.1566(b); other citations
omitted; emphasis in original). As noted above, the VE testified to
one job (Counter Clerk) that exists in significant numbers in the
national

economy

and

only

requires

occasional

handling

(and

fingering). See DOT, Counter Clerk DICOT 249.366-010 (G.P.O.), 1991
WL

672323

(4th

ed.

1991)

(stating

that

this

job

involves

“[h]andling: [o]ccasionally - [e]xists up to 1/3 of the time” and
“[f]ingering: [o]ccasionally - [e]xists up to 1/3 of the time. .
.”). Plaintiff does not suggest that “occasional” handling is
incompatible with Dr. Wolf’s opinion. Therefore, the Court finds
that the Commissioner met her burden of showing that there is “any
work” that exists in significant numbers in the national economy
that Plaintiff can perform. See, e.g., Sullivan v. Astrue, No.
08–CV–6355(CJS), 2009 WL 1347035, at *15 n. 15 (W.D.N.Y. May 13,
2009) (“Even if the VE had identified only one job that existed in
sufficient numbers, the Commissioner would have met his burden at
the fifth step.”); Henry v. Astrue, No. 07 Civ. 0957(WCC), 2008 WL
5330523, at *10 (S.D.N.Y. Dec. 17, 2008) (noting that it is the
number of actual positions, not types of jobs, that is relevant
under step five); Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir.
1983) (affirming step-five determination where ALJ only pointed to
one type of job)).

-9-

Moreover, as the Commissioner notes, Dr. Wolf’s examination
took place prior to a course of physical therapy which resulted in
significant

improvement

in

Plaintiff’s

left

shoulder.

(T.19,

502-04). In addition, the ALJ’s RFC finding is also consistent with
other opinions from acceptable medical sources. On November 15,
2013, Christine Persuad, M.D., saw Plaintiff for left elbow pain
that radiated to his left hand with numbness. (T.314-17). Plaintiff
explained that these symptoms existed since his elbow surgery in
the 1990s. Plaintiff exhibited slightly decreased left elbow ROM,
but full ROM in his hands and full strength. A left elbow x-ray
revealed

only

post-operative

changes.

(T.330,

350,

371).

Dr. Persaud restricted him from heavy lifting, but did not impose
any other restrictions. On November 26, 2013, Plaintiff began
treating with Thomas Gregg, M.D. (T.310-11). Plaintiff demonstrated
decreased ROM in his neck, along with tenderness in his neck and
left shoulder harness. He had good strength, but the examination
was limited by pain. Dr. Gregg opined that Plaintiff should avoid
heavy lifting but did not impose other limitations. Subsequent left
shoulder and clavicle x-rays showed only mild arthritic changes.
(T.326, 328, 351-52, 378, 380). Plaintiff returned to Dr. Persaud
on December 11, 2013,
opined

only

that

with a cervical strain; again, Dr. Persaud

Plaintiff

could

(T.308).

-10-

not

perform

heavy

lifting.

On December 16, 2013, Dr. Gregg saw Plaintiff for neck and shoulder
pain that he rated as “10 out of 10;” however, Dr. Gregg observed,
Plaintiff did not appear in acute distress. (T.302-03). Dr. Gregg
opined that Plaintiff’s subjective pain complaints were “out of
proportion”

to

his

functional

impairment.

(T.303).

Dr.

Gregg

indicated that Plaintiff could no longer lift over 50 pounds and
opined that Plaintiff could not do work involving heavy lifting,
pushing, and pulling; no other work restrictions were given.
(T.303). On January 14, 2014, less than a week after Dr. Wolf’s
consultative examination, Plaintiff saw Dr. Gregg again. Plaintiff
alleged “10 out of 10” pain, but he did not appear in acute
distress.

(T.405-07).

Dr.

Gregg

noted

that

the

MRI

findings

demonstrated “minimal pathology” and did not appear severe enough
to cause Plaintiff’s reported pain, which was “out of proportion”
to his functional impairment. (T.406-07). Narcotic pain medications
were

not

indicated

in

the

absence

findings.

According

to

Dr.

Gregg,

of

commensurate

Plaintiff

was

objective

functionally

intact, except that he could no longer lift over 20 pounds; he
could perform work that did not require heaving lifting. (T.406;
see also T.413, 420, 430). Dr. Simon Arnsdell saw Plaintiff on
March 26, 2014, for evaluation of his left shoulder pain. (T.463).
Plaintiff appeared in no acute distress. He exhibited decreased
left shoulder ROM but had full strength and intact sensations.
Dr. Arnsdell felt that most of Plaintiff’s pain was muscular or

-11-

myofascial, and that the labral tear was incidental and unrelated
to the physical examination findings.
“While the ALJ is not obligated to ‘reconcile explicitly every
conflicting

shred

of

medical

selectively

choose

evidence

in

testimony,’

he

the

that

record

cannot

simply

supports

his

conclusions.” Gecevic v. Sec’y of Health & Human Servs., 882 F.
Supp. 278, 286 (E.D.N.Y. 1995) (quoting Fiorello v. Heckler, 725
F.2d 174, 176 (2d Cir. 1983)). The Court does not find evidence of
such cherry-picking here.
B.

Error in Weighing Treating Source Opinions (Plaintiff’s
Point II)

Plaintiff

contends

that

the

ALJ

erred

by

not

giving

controlling weight to opinions offered by primary care physician
Dr. Anastasia Kolasa-Lenarz and Nurse Practitioner Lori Conway (“NP
Conway”).
A

treating

source

is

the

claimant’s

“own

physician,

psychologist, or other acceptable medical source who provides [a
claimant] with medical treatment or evaluation and who has, or has
had,

an

ongoing

treatment

relationship

with

[the

claimant].”

20 C.F.R. §§ 404.1502, 416.902. “If . . . a treating source’s
opinion . . . is well-supported by medically acceptable clinical
and laboratory techniques and is not inconsistent with other
substantial evidence . . . [it] will [be] give[n] controlling
weight.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). “Medically
acceptable techniques include consideration of a patient’s report
-12-

of complaints, or the patient’s history, as essential diagnostic
tools.” Green–Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003).
“An ALJ who refuses to give controlling weight to the medical
opinion of a treating physician must consider various factors to
determine how much weight to give to the opinion.” Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citation omitted). These
factors include (1) the length of the treatment relationship and
frequency of examinations; (2) the nature and extent of treatment
relationship; (3) the medical evidence in support of the opinion;
(4) the consistency of the opinion with the record as a whole;
(5) whether the opinion is from a specialist; and (6) any other
factors that tend to support or contradict the opinion. 20 C.F.R.
§§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
1.

Dr. Kolasa-Lenarz’s Opinion

On August 21, 2015, Plaintiff saw Dr. Kolasa-Lenarz, for left
elbow, left shoulder, and neck pain. (T.438). He appeared in no
acute distress and his motor and sensory examination was within
normal limits, except for decreased left arm strength and decreased
left elbow and left shoulder ROM. (T.440). Also on that date,
Dr. Kolasa-Lenarz completed an employability assessment form for
the Monroe County Department of Social Services (“DSS”) indicating
that Plaintiff could work 15 to 20 hours a week with no lifting,
pushing,

pulling,

bending,

or

any

strenuous

or

repetitive

movements; could not stand for more than 1 to 2 hours; could only

-13-

walk for 2 to 4 hours; and could stand, sit, push/pull/bend, and
lift for 1 to 2 hours each. (T.347).
On November 5, 2015, Dr. Kolasa-Lenarz provided a physical
residual functional capacity questionnaire to Plaintiff’s counsel
stating that Plaintiff’s signs and symptoms (pain and decreased
ROM) related to his left shoulder and elbow while the clinical
signs and objective findings (reduced ROM and pain) were in his
right

shoulder

and

elbow.

(T.512).

She

did

not

conduct

an

examination on that day. Dr. Kolasa-Lenarz opined that Plaintiff
could sit for 2 hours in an 8-hour workday; stand/walk for 2 hours
in an 8-hour workday; could never lift any weight, turn his head
left or right, look up, twist, stoop, climb ladders, or reach with
his

left

arm;

could

occasionally

hold

his

head

in

a

static

position; could handle, reach, and finger 100 percent of an 8-hour
day with the right hand; could handle 50 percent of an 8-hour day
(i.e., 4 hours) with the left hand, finger 50 percent of an 8-hour
day (i.e., 4 hours) with the left hand, but could never reach with
the left hand.4 (T.515). Dr. Kolasa-Lenarz opined that Plaintiff’s
impairments would likely cause him to experience “good days” and

4

“‘Frequent’ means occurring from one-third to two-thirds of the time.”
Titles II & XVI: Determining Capability to Do Other Work-the Med.-Vocational
Rules of Appendix 2, SSR 83-10, 1983 WL 31251, at *6 (S.S.A. 1983). If Plaintiff
can handle and finger for 4 hours each, respectively, with his left hand, in an
8-hour day, then he can handle and finger frequently with his left hand in an 8hour day.

-14-

“bad days” and that he would likely miss about three days of work
per month because of his impairments.
On November 25, 2015, Dr. Kolasa-Lenarz provided another
employability assessment form for DSS indicating that Plaintiff
could work 20 hours a week and could lift 5 pounds but could do no
bending, pushing, or pulling. (T.519). Dr. Kolasa-Lenarz did not
conduct an examination that day. She again indicated that Plaintiff
had very reduced right shoulder ROM. (T.521). Dr. Kolasa-Lenarz
stated that Plaintiff could stand and walk for 2 to 4 hours, and
sit and lift for 1 to 2 hours. (Id.).
The ALJ acknowledged Dr. Kolasa-Lenarz’s treating relationship
with Plaintiff but nevertheless accorded “limited weight” to her
opinions because she is not an orthopedist and had “a very limited
relationship” with Plaintiff. (T.18). As the ALJ pointed out, the
first time she saw Plaintiff was on August 21, 2015, the date she
issued

her

first

opinion.

Dr.

Kolasa-Lenarz’s

lack

of

specialization and inability to provide a longitudinal view of
Plaintiff’s

impairments

and

resultant

limitations

are

proper

considerations under the Regulations. As the Second Circuit has
reiterated

that

appropriately

“[w]hether

applied

the

depends

‘treating

on

‘the

physician’

nature

of

the

rule

is

ongoing

physician-treatment relationship.’” Arnone v. Bowen, 882 F.2d 34,
41 (2d Cir. 1989) (quotation omitted); see also Comins v. Astrue,
374 F. App’x 147, 149 (2d Cir. 2010) (unpublished opn.) (treating

-15-

physician who saw claimant once did not have ongoing treatment
relationship so as to warrant presumption of deference).
The

ALJ

also

found

that

Dr.

Kolasa-Lenarz’s

opinions

demonstrated “inconsistency with the exam findings and [Plaintiff]’s
reports and statements.” (T.18).

See Portner v. Colvin, No.

615CV00343DNHTWD, 2016 WL 769975, at *5-*6 (N.D.N.Y. Jan. 29, 2016),
R&R adopted, No. 615CV343DNHTWD, 2016 WL 796072 (N.D.N.Y. Feb. 22,
2016) (finding that the ALJ’s assignment of “some weight” to
treating physician’s opinion was proper because the opinion was not
consistent with physician’s own treatment records, and the medical
evidence overall).
In

particular,

the

ALJ

noted

that

a

two-hour

limit

on

Plaintiff’s ability to sit, stand, and walk had “no support in the
record.”

(T.18).

For

instance,

at

the

time

Dr.

Kolasa-Lenarz

provided this opinion Plaintiff was actually working more than
30 hours per week. (See T.46, 48-52, 224-27, 345). See Rivers v.
Astrue, 280 F. App’x 20, 23 (2d Cir. 2008) (unpublished opn.)
(stating that although claimant’s work during the relevant period
did not meet threshold for substantial gainful activity, he worked
at levels consistent with light work).
In addition, the ALJ found, Dr. Kolasa-Lenarz’s opinion that
Plaintiff would not be able to lift and carry any appreciable amount
of weight was in conflict with the record and her own examination
findings that Plaintiff has had no right arm symptoms or pathology.

-16-

(T.18). The ALJ observed that “[e]ven [Plaintiff] stated that he
could lift five pounds with his left arm without pain and twenty
pounds with pain.” (Id. (citing Ex. 6F, p. 51)).
The ALJ applied the proper regulatory factors in deciding not
to accord Dr. Kolasa-Lenarz’s opinions controlling weight, including
the brevity of her treating relationship, and the inconsistency of
her opinions with her clinical observations, the opinions of other
acceptable medical sources, the unremarkable MRI evidence, and
Plaintiff’s own activities. This determination was supported by
substantial evidence in the record.
2. NP Conway’s Opinion
Nurse practitioners are not considered “acceptable medical
sources” and, as such, cannot establish whether a claimant has a
medically determinable impairment. 20 C.F.R. §§ 404.1513, 416.913;
see also SSR 06–03p, 2006 WL 2329939, at *2 (S.S.A. Aug. 9, 2006)
(information from other sources cannot establish the existence of
a medically determinable impairment). Evidence from other sources
such as nurse practitioners may be used to demonstrate the severity
of a claimant’s impairment and how it affects his or her ability to
work. 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). Although opinions
from

“other

sources”

are

not

entitled

to

the

presumption

of

deference applicable to opinions from treating, “acceptable medical
sources,”

they

must

be

considered

because

the

adjudicator

is

required to evaluate all evidence that comes before it. The factors

-17-

required for analysis of a treating physician’s opinion can also be
applied to opinion evidence from other sources. SSR 06–03p, 2006 WL
2329939, at *4.
Here, NP Conway saw Plaintiff on three occasions; at the third
visit, NP Conway incorrectly stated that this was her first visit
with Plaintiff. (T.432). The ALJ noted that NP Conway’s January 2015
opinion was not consistent with her December 17, 2013 opinion.
(T.18-19). In December 2013, NP Conway only precluded Plaintiff from
performing work involving heavy lifting, pushing, pulling, or
repetitive motions. (T.300). In January 2015, Plaintiff asserted
that his pain was 10 out of 10 but did not appear in acute distress.
(T.433-34). Clinically, he had a normal gait, decreased left elbow
ROM, full wrist ROM, and full left-hand grasp strength; his right
arm and hand displayed full ROM and strength. NP Conway indicated
that Plaintiff could work 20 hours per week with no lifting,
pushing, or pulling for the next 6 months, and could not sit longer
than 2 hours, push/pull, or lift two-handed. (T.340). As the ALJ
noted, the opinions are not inconsistent with each other, and the
record does not reflect a worsening of Plaintiff’s condition so as
to account for the severe restrictions in the later opinion.
Moreover, as the ALJ noted, the later opinion is inconsistent with
NP Conway’s findings on examination; for instance, she found nothing
abnormal on Plaintiff’s right upper extremity, yet she opined that
he could not perform any lifting, pushing, or pulling. Likewise,

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there is nothing in the record to support the 2-hour limitation on
sitting. See Penfield v. Colvin, 563 F. App’x 839 (2d Cir. 2014)
(ALJ properly gave little weight to treating source opinion that was
inconsistent with a previous opinion from the same source). NP
Conway’s January 2015 opinion is also inconsistent with Plaintiff’s
subsequent part-time job from May to September 2015, at which he
worked up to 37 hours per week. (T.213-29, 340, 435). The ALJ’s
weighing of NP Conway’s opinion reflects the application of the
proper factors, and the reasons given for discounting it are
supported

by

substantial

evidence

and

are

not

based

on

a

mischaracterization or misquoting of the record.
C.

Erroneous Credibility Assessment (Plaintiff’s Point II)

Within his Point II argument, Plaintiff also challenges the
ALJ’s finding that his complaints were less than fully credible
because he “has not engaged in the type of treatment on would expect
for a totally disabled individual.” (T.19). Plaintiff notes that in
the context of weighing treating physician opinions, the Second
Circuit has reiterated that “[t]he ALJ and the judge may not
‘impose[ ] their [respective] notion[s] that the severity of a
physical impairment directly correlates with the intrusiveness of
the medical treatment ordered. . . .” Burgess v. Astrue, 537 F.3d
117, 129 (2d Cir. 2008) (quotation omitted; brackets and ellipsis
in original). Courts in this Circuit have found similar statements
to amount to the ALJ “playing doctor.” See, e.g., Amarante v. Comm’r

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of Soc. Sec., No. 16CV00717RJSBCM, 2017 WL 4326014, at *11 (S.D.N.Y.
Sept. 8, 2017) (error for ALJ to opine that claimant had “not
generally received the type of medical treatment one would expect
for

a

totally

disabled

individual”),

R&R

adopted,

No.

16-CV-717(RJS), 2017 WL 4326525 (S.D.N.Y. Sept. 26, 2017); Primes
v. Colvin, No. 6:15-CV-06431(MAT), 2016 WL 446521, at *4 (W.D.N.Y.
Feb. 5, 2016) (finding error with ALJ’s statement that claimant “has
not generally received the type of medical treatment one would
expect from a totally disabled individual”).
The Court agrees that, standing alone, the foregoing statement
by the ALJ would be problematic. Whereas in Primes and Amarante, the
ALJ identified no medical expert who opined that the claimant’s
medical treatment was atypical for a person who is disabled, here,
treating physician Dr. Gregg opined on more than one occasion that
Plaintiff’s subjective complaints of pain at a 10 out of 10 at all
times were “out of proportion” to his functional impairment. (T.303,
406). Dr. Gregg also found that the objective imaging results did
not appear severe enough to cause Plaintiff’s reported pain and were
“disproportionate” to Plaintiff’s complaints. (T.406-07). Dr. Gregg
specifically noted that narcotic pain medications were not indicated
due to the absence of commensurate objective findings. (T.407).
Moreover, the Commissioner’s regulations and policy rulings
indicate that the nature and type of treatment a claimant receives
is a proper consideration in making a determination as to the

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credibility of a his or her subjective complaints. See SSR 96–7p,
1996 WL 374186, at *4 (S.S.A. July 2, 1996) (instructing the ALJ to
pay

particular

attention

to

certain

factors

in

assessing

credibility, including the type, dosage, effectiveness, and side
effects

of

any

medications;

treatment

modalities,

other

than

medication, for relief of the claimant’s pain or other symptoms; and
any measures used to relieve pain or other symptoms) (citing
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3)). Here, that the ALJ
properly

found

that

Plaintiff

had

shown

improvement

with

the

conservative treatment he received, in the form of physical therapy.
(T.19). See, e.g., Reices-Colon v. Astrue, 523 F. App’x 796, 799
(2d Cir. 2013) (unpublished opn.) (substantial evidence supported
ALJ’s finding that claimant showed improvement with treatment;
treatment notes indicated that claimant’s chest pains had improved,
that medication seems to be helping, that her symptoms had shown
some

improvement,

and

that

she

was

not

crying

as

much,

and

consultative examiner concluded that claimant had a fair to good
prognosis with continued treatment). In May 2014, Plaintiff was
discharged from physical therapy with instructions to follow up with
his doctor in two to three months if his pain did not resolve.
(T.502-04). However, Plaintiff did not receive any medical treatment
again until September 2014, when Dr. Gregg noted that Plaintiff had
better pain control with physical therapy; he re-referred Plaintiff
to physical therapy, but Plaintiff did not follow through on the

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referral. (T.429-30). In January 2015, Plaintiff again was offered
physical therapy but he did not attend. (T.505). In fact, Plaintiff
returned to work between May 2015 and September 2015. (T.213-29).
He did not seek medical consultation again until August 2015, in
order

to

obtain

a

medical

opinion

regarding

his

work-related

functional limitations. (T.441). As the Commissioner argues, this
chronology suggests that Plaintiff’s improvement with physical
therapy was not temporary, and that the ALJ relied on substantial
evidence

in

finding

that

he

demonstrated

improvement

with

a

conservative course of treatment.
V.

Conclusion
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision is free of harmful legal error and is
supported by substantial evidence. Therefore, it is affirmed.
Plaintiff’s motion for judgment on the pleadings is denied and the
Commissioner’s motion for judgment on the pleadings is granted. The
Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

May 2, 2018
Rochester, New York.

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