Opinion
1:21-CV-00273 EAW
2023-04-24
BRIAN M., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Kenneth R. Hiller, Melissa Marie Kubiak, Law Offices of Kenneth Hiller, PLLC, Amherst, NY, for Plaintiff. June Lee Byun, Social Security Administration Office of General Counsel, Baltimore, MD, for Defendant.
Kenneth R. Hiller, Melissa Marie Kubiak, Law Offices of Kenneth Hiller, PLLC, Amherst, NY, for Plaintiff. June Lee Byun, Social Security Administration Office of General Counsel, Baltimore, MD, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Represented by counsel, Plaintiff Brian M. ("Plaintiff") brings this action pursuant to Titles II and XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). (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. 7; Dkt. 8), and Plaintiff's reply (Dkt. 9). For the reasons discussed below, the Commissioner's motion (Dkt. 8) is granted, and Plaintiff's motion (Dkt. 7) is denied.
BACKGROUND
Plaintiff protectively filed his applications for DIB and SSI on September 6, 2018. (Dkt. 6 at 19, 112-13). In his applications, Plaintiff alleged disability beginning February 15, 2017, due to degenerative disc disorder and herniated discs. (Id. at 19, 82-83, 97-98). Plaintiff's applications were initially denied on December 18, 2018. (Id. at 19, 114-21). A telephone hearing was held before administrative law judge ("ALJ") Paul Georger on July 28, 2020. (Id. at 19, 37-81). On September 1, 2020, the ALJ issued an unfavorable decision. (Id. at 16-31). Plaintiff requested Appeals Council review; his request was denied on January 12, 2021, making the ALJ's determination the Commissioner's final decision. (Id. at 5-10). This action followed.
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.
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 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 Bowen v. City of New York, 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (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), 416.920(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), 416.920(c). If the claimant does not have a severe impairment or 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), 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement, id. §§ 404.1509, 416.909, 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), 416.920(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), 416.920(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), 416.920(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).
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 and 416.920. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on December 31, 2020. (Dkt. 6 at 21). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since February 15, 2017, the alleged onset date. (Id.).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "degenerative disc disease of the lumbar spine with spondylosis, status-post January 2019 surgical repair; migraine headaches; major depressive disorder; and bipolar disorder." (Id. at 21-22). The ALJ further found that Plaintiff's medically determinable impairments of spontaneous pneumothorax, mild hearing loss due to recurrent otitis and history of right tympanic membrane perforation, and cannabis use disorder were non-severe. (Id. at 22).
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 1.04, 11.00, and 12.04 in reaching his conclusion. (Id. at 22-24).
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) and 416.967(b), except as follows:
He can occasionally climb ramps, stairs, ladders, ropes, and scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. He can perform simple,
routine, repetitive tasks but not at a production-rate pace, such as with assembly-line work. He is able to make simple work-related decisions.(Id. at 24). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 29).
He can occasionally interact with supervisors, coworkers, and the general public. He requires a sit/stand option that allows him to change position every 30 minutes.
At step five, the ALJ relied 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 bench inspector, tagger/labeler, and routing clerk. (Id. at 29-30). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 30-31).
II. The Commissioner's Determination is Supported by Substantial Evidence and Free from Legal Error
Plaintiff asks the Court to remand this matter to the Commissioner, arguing that (1) the ALJ erred when he failed to adequately evaluate Plaintiff's degenerative disc disease under Listing 1.04, and (2) the ALJ erred by improperly evaluating the opinion of his primary care provider Carl Roth, D.O., and then relying on the overly vague opinion of the consultative examiner, Michael Rosenberg, M.D., to support the physical portion of the RFC determination. (Dkt. 7-1 at 1, 12-21). The Court has considered each of these arguments and, for the reasons discussed below, finds them without merit.
A. The Step Three Determination
Plaintiff's first argument is that the ALJ failed to properly evaluate his impairment under Listing 1.04A, because he "gave a passing mention of Listing 1.04, but did not engage in an accurate analysis." (Dkt. 7-1 at 14). He contends that the ALJ's analysis fell short of the ALJ's requirement to build a bridge between the medical evidence and his finding to allow for meaningful review. (Id.). Plaintiff points to evidence suggesting that Listing 1.04A "may have been met." (Id. at 15-17). In response, the Commissioner contends that the ALJ was not required to provide a detailed analysis at step three and that Plaintiff failed to show that he could not ambulate effectively. (Dkt. 8-1 at 11-15).
"Plaintiff has the burden of proof at step three to show that [his] impairments meet or medically equal a Listing." Rockwood v. Astrue, 614 F. Supp. 2d 252, 272 (N.D.N.Y. 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) (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 (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 (quoting Kuleszo v. Barnhart, 232 F. Supp. 2d 44, 52 (W.D.N.Y. 2002)) (alteration in original).
Contrary to Plaintiff's implication, the ALJ was not required to engage in a detailed analysis at step three of the sequential evaluation. Pursuant to Social Security Ruling ("SSR") 17-2P, which became effective on March 27, 2017, before Plaintiff filed his claim:
If an adjudicator at the hearings or AC level believes that the evidence already received in the record does not reasonably support a finding that the individual's impairment(s) medically equals a listed impairment, the adjudicator is not required to articulate specific evidence supporting his or her finding that the individual's impairment(s) does not medically equal a listed impairment. Generally, a statement that the individual's impairment(s) does not medically equal a listed impairment constitutes sufficient articulation for this finding. An adjudicator's articulation of the reason(s) why the individual is or is not disabled at a later step in the sequential evaluation process will provide rationale that is sufficient for a subsequent reviewer or court to determine the basis for the finding about medical equivalence at step 3.SSR 17-2P (S.S.A.), 2017 WL 3928306, at *4; Clarke v. Comm'r of Soc. Sec., No. 21-cv-1257(KAM), 2022 WL 14760784, at *6 (E.D.N.Y. Oct. 25, 2022) ("An ALJ's unexplained step three conclusion may nevertheless be upheld if other parts of the opinion demonstrate that their step three decision was supported by substantial evidence.").
To meet Listing 1.04A, a claimant must show proof of the following conditions:
1. A disorder of the spine, including but not limited to "herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture," andSee 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04A. "[E]xamples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b)(2).
2. "Compromise of nerve root (including the cauda equina) or the spinal cord," and
3. "Evidence 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)," and
4. "Sensory or reflex loss," and if there is involvement of the lower back,
5. "Positive straight-leg raising test" in both the sitting and supine position.
After concluding that Plaintiff had the severe impairment of degenerative disc disease of the lumbar spine with spondylosis, the ALJ proceeded to step three of the sequential analysis and the ALJ explained, in relevant part:
The claimant's spine impairment has been considered under listing 1.04. The medical evidence does not establish the nerve root compression, spinal arachnoiditis, or spinal stenosis required to satisfy that listing. Additionally, there is no evidence that this impairment has resulted in an inability to ambulate effectively as defined in listing 1.00B2b.(Dkt. 6 at 22).
While the ALJ's explanation with respect to Listing 1.04A is brief, the Court can glean from the remainder of the written determination how the ALJ determined that Plaintiff did not meet the requirements of this Listing, and therefore a more detailed explanation at step three was not required. For example, Listing 1.04A requires limitation of motion, motor loss, or muscle weakness, and the ALJ noted that medical records demonstrated that Plaintiff had good muscle strength and good range of motion in his joints. (Id. at 26). Listing 1.04A also requires an inability to ambulate, and the ALJ noted that in examinations since Plaintiff's surgery in January 2019, Plaintiff walked with a normal gait and demonstrated good coordination and good range of motion in all extremities. (Id.). Further, Plaintiff's testimony at his administrative hearing was that he could walk approximately 1,000 feet before experiencing pain and that he did not require a cane or walker to get around (see id. at 55-56), which is not consistent with an inability to ambulate. The ALJ likewise discussed the medical opinion evidence in the record, which does not support that Plaintiff met the criteria of Listing 1.04A. (See, e.g., id. at 26 (discussing Dr. Rosenberg's findings in the November 2018 consultative examination, many of which "were unremarkable," including that straight-leg raise testing was negative, Plaintiff's sensation and reflexes were intact, and although the "finding of 4/5 strength in all extremities was atypical . . . despite that finding, Dr. Rosenberg found no signs of muscle atrophy.")). The ALJ further noted in connection with assessing Dr. Rosenberg's opinion that Plaintiff's daily activities, which included "childcare, driving, shopping, and light cleaning," were consistent with the opinion. (Id. at 27; see also id. at 289-92, 519, 526).
Although Plaintiff points to evidence showing that he had an antalgic gait on occasion (see Dkt. 7-1 at 16 ("He walked with a slow, antalgic gait or limp)), that fact does not mean that he had an inability to ambulate effectively (see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b)(1) ("Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e. an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.")). The ALJ acknowledged that Plaintiff had an antalgic gait on occasion (see Dkt. 6 at 25 ("In a few examinations, [doctors] also noted that the claimant's gait was mildly antalgic."); id. (noting in November 2018 that Plaintiff's gait was "very slow and deliberate")), but the ALJ further explained that since having surgery in January 2019, Plaintiff walked with a normal gait, and had good range of motion and coordination (id. at 26).
Plaintiff points to certain evidence in the record he contends supports that Listing 1.04A was met. (See, e.g., Dkt. 7-1 at 15-16 (discussing medical records noting disc herniations, spinal canal narrowing, degenerative spondylosis, lateral recess stenosis and effacement of nerve root, and paracentral disc herniation)). However, the ALJ is tasked with resolving conflicts in the record. See Donald A. v. Saul, No. 1:19-CV-01146-MJR, 2021 WL 672043, at *6 (W.D.N.Y. Feb. 22, 2021) ("The presence of conflicting medical evidence is not uncommon, and it is the ALJ's duty to resolve those conflicts."). Accordingly, while "Plaintiff may disagree with the ALJ's conclusion," the Court "must defer to the Commissioner's resolution of conflicting evidence and reject the ALJ's findings only if a reasonable factfinder would have to conclude otherwise." Daniel G. v. Comm'r of Soc. Sec., No. 1:20-CV-1211 (WBC), 2023 WL 155426, at *7 (W.D.N.Y. Jan. 11, 2023) (citations and quotations omitted). As explained above, it is clear to the Court how the ALJ arrived at the step three determination and that his conclusion is supported by the record, and therefore this is not a case where a reasonable factfinder would reach a different conclusion. For those reasons, remand is not required on this basis.
B. Opinion Evidence
Plaintiff's second and final argument is that the ALJ did not properly evaluate the opinion offered by Dr. Roth, and relied on the vague opinion by Dr. Rosenberg to support the physical portion of the RFC. (Dkt. 7-1 at 17-21). In response, the Commissioner contends that substantial evidence supports the RFC, and the ALJ properly considered the evidence in the record, including the medical opinion evidence. (Dkt. 8-1 at 16-22).
Although the RFC also contains mental limitations, Plaintiff does not challenge the ALJ's assessment of the mental portion of the RFC. Accordingly, the Court's analysis focuses on the ALJ's assessment of the physical RFC and the medical opinions supporting the physical RFC.
Under the regulations applicable to Plaintiff's claim, the Commissioner "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's] medical sources." 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Further, when a medical source provides one or more medical opinions, the Commissioner will consider those medical opinions from that medical source together using the factors listed in paragraphs (c)(1) through (c)(5) of the applicable sections. Id. Those factors include: (1) supportability; (2) consistency; (3) relationship with the claimant, including the length of the treatment relationship, the frequency of examinations, purpose and extent of the treatment relationship, and the examining relationship; (4) specialization; and (5) any other factors that "tend to support or contradict a medical opinion or prior administrative medical finding." Id. at §§ 404.1520c(c), 416.920c(c).
When evaluating the persuasiveness of a medical opinion, the most important factors are supportability and consistency. Id. at §§ 404.1520c(a), 416.920c(a). With respect to "supportability," the new regulations provide that "[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be." Id. at § 404.1520c(c)(1). With respect to "consistency," the new regulations provide that "[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be." Id. at §§ 404.1520c(c)(2), 416.920c(c)(2).
The ALJ must articulate his consideration of the medical opinion evidence, including how persuasive he finds the medical opinions in the case record. Id. at §§ 404.1520c(b), 416.920c(b). "Although the new regulations eliminate the perceived hierarchy of medical sources, deference to specific medical opinions, and assigning 'weight' to a medical opinion, the ALJ must still articulate how [he or she] considered the medical opinions and how persuasive [he or she] find[s] all of the medical opinions." Andrew G. v. Comm'r of Soc. Sec., No. 3:19-CV-0942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (quotations and citation omitted). Specifically, the ALJ must explain how he considered the "supportability" and "consistency" factors for a medical source's opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The ALJ may—but is not required to—explain how he considered the remaining factors. Id.
The Court turns first to the ALJ's assessment of Dr. Rosenberg's opinion. Dr. Rosenberg examined Plaintiff on November 27, 2018. (Dkt. 6 at 518-21). He observed that Plaintiff appeared to be in no acute distress, he had a very slow deliberate gait, could not walk on his heels but could walk on his toes, and could squat 50 percent. (Id. at 519). Plaintiff's stance was normal, he used no assistive devices, and needed no help changing for the exam or getting on and off the exam table. Plaintiff was also able to rise from the chair without difficulty. (Id.). On examination, Dr. Rosenberg found that Plaintiff's cervical spine showed full flexion, extension, and lateral flexion bilaterally, and full rotary movement bilaterally, while his lumbar spine showed flexion at 70 degrees, extension at 10 degrees, and lateral flexion 20 degrees bilaterally, and full rotary movement bilaterally. (Id. at 520). His straight-leg raise test was negative bilaterally. (Id.). Plaintiff had full range of motion in his shoulders, elbows, forearms, and wrists bilaterally, some limited range of motion in his hips, right knee flexion at 100 degrees, left knee flexion at 110 degrees, and full range of motion in his ankles bilaterally. (Id.). Plaintiff's joints were stable. (Id.). He had pain with range of motion in the lumbosacral spine and range of motion in the right hip and knee, but no redness, heat, swelling, or effusion. (Id.). Dr. Rosenberg found no sensory deficits, and Plaintiff's strength was 4/5 in the upper and lower extremities, his grip strength was 5/5 bilaterally, and he had no evident muscle atrophy. (Id.). Dr. Rosenberg diagnosed moderate back pain, and offered the following medical source statement:
The claimant has moderate restrictions for activity that would entail carrying heavy objects, prolonged uninterrupted bending, squatting, kneeling, and lifting, and prolonged uninterrupted walking secondary to his moderate back pain.(Id. at 521). The ALJ found Dr. Rosenberg's opinion to be "persuasive," noting that his opinion was consistent with the medical evidence in the record, including that Plaintiff experienced back pain due to degenerative changes in his lumbar spine, his gait was normal and his strength, sensation, reflexes, and overall range of motion were good, and he was able to accomplish daily activities such as childcare, driving, shopping, and light cleaning. (Id. at 27). The ALJ also found that Dr. Rosenberg's opinion was supported by his objective findings in the consultative examination. (Id.).
The ALJ's assessment of Dr. Rosenberg's opinion was proper and well-supported by the evidence. As required by the regulations applicable to Plaintiff's claim, the ALJ considered both the consistency and the supportability of Dr. Rosenberg's opinion. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Although Plaintiff suggests that it was improper for the ALJ to credit the opinion of Dr. Rosenberg because it was "based upon a one-time examination" (see Dkt. 7-1 at 20), as a consultative examiner, Dr. Rosenberg's opinion may serve as substantial evidence supporting the RFC. See Frank T. v. Comm'r of Soc. Sec., No. 1:20-CV-500 (WBC), 2021 WL 3635212, at *4 (W.D.N.Y. Aug. 17, 2021) ("the opinion of a consultative examiner may constitute substantial evidence that the ALJ can rely on to determine Plaintiff's RFC"). Further, Dr. Rosenberg's opinion is consistent with other medical evidence in the record, including the opinion offered by Gary Ehlert, M.D., the state agency medical consultant, who opined that Plaintiff could: occasionally lift/carry 20 pounds and frequently lift/carry 10 pounds; stand and/or walk for six hours in an eight-hour day, and sit for a total of six hours in an eight-hour day; occasionally climb ramps, stairs, ladders, ropes, and scaffolds; and occasionally balance, stoop, kneel, crouch, and crawl. (Dkt. 6 at 90-91). Further, the RFC—which requires that Plaintiff perform light work, including occasionally climbing ramps, stairs, ladders, ropes, and scaffolds, and occasionally balancing, stooping, kneeling, crouching, and crawling, with a sit/stand option that allows Plaintiff to change position every 30 minutes—is supported by Dr. Rosenberg's opinion that Plaintiff had "moderate restrictions," as well as the opinion offered by Dr. Ehlert. See, e.g., Lewis v. Colvin, 548 F. App'x 675, 677 (2d Cir. 2013) ("the ALJ's determination that Lewis could perform 'light work' is supported by Dr. Datta's assessment of 'mild limitations for prolonged sitting, standing, and walking,' and direction that Lewis should avoid 'heavy lifting, and carrying' "); Gurney v. Colvin, No. 14-CV-688S, 2016 WL 805405, at *3 (W.D.N.Y. Mar. 2, 2016) ("moderate limitations . . . are frequently found to be consistent with an RFC for a full range of light work").
Plaintiff further suggests that Dr. Rosenberg's use of the term "moderate" is too vague to be relied upon. (See Dkt. 7-1 at 18). However, "a consultative examiner's use of the terms 'mild' or 'moderate' is not impermissibly vague when the opinion is supported by a physical examination and an assessment which is consistent with the record as a whole." Susan B. v. Comm'r of Soc. Sec., 551 F. Supp. 3d 107, 119 (W.D.N.Y. 2021) (collecting cases). As explained above, Dr. Rosenberg's assessment of Plaintiff's limitations was supported by his in-person examination of Plaintiff and by the record as a whole, and therefore the Court does not find that the use of the term "moderate" renders his opinion vague.
The Court turns next to the ALJ's assessment of Dr. Roth's opinion. Dr. Roth completed a Physical Treating Medical Source Statement on June 25, 2020. (Dkt. 6 at 955-57). Dr. Roth diagnosed intervertebral disc displacement in the lumber region, and chronic pain syndrome. (Id. at 955). Dr. Roth opined that Plaintiff's experience of pain or other symptoms was "constantly" severe enough to interfere with attention and concentration needed to perform simple work tasks. (Id.). Plaintiff could walk one half a city block without rest or severe pain, could sit and stand for 20 minutes at one time, and could sit and stand/walk for less than two hours total in an eight-hour workday. (Id. at 956). Plaintiff required periods of walking around during the workday, and would need to walk between five and 10 minutes for six minutes each time. (Id.). Plaintiff also required a job that permitted shifting positions at will from sitting, standing, or walking, and he would sometimes need to take unscheduled breaks. (Id.). Plaintiff could occasionally carry less than 10 pounds and rarely carry 10 pounds, could occasionally twist, rarely stoop (bend), crouch/squat, and climb stairs, and could never climb ladders. (Id. at 957). His impairments were likely to produce good days and bad days, but Dr. Roth answered "unknown" to estimating how many days per month Plaintiff would be absent from work due to impairments or treatment. (Id.).
The ALJ found Dr. Roth's opinion to be "not persuasive," explaining that his assessment of extreme limitations in walking, sitting, standing, and lifting suggested that Plaintiff was "nearly bedridden," which was not consistent with Plaintiff's statements regarding his daily activities. (Id. at 28). The ALJ also noted that Dr. Roth's opinion was inconsistent with the medical evidence regarding Plaintiff's normal strength and motor functioning, nor was it consistent with Dr. Roth's own records, "which document objective findings of good motor functioning and beneficial treatment." (Id.; see also id. at 672-73 (treatment note dated January 2, 2020, noting that Plaintiff walked with a normal gait for his age, had moderate tenderness of the lower lumbosacral segments and full range of motion in the upper extremities, and noting that Plaintiff should "continue with chronic pain regimen as at present it appears effective," and encouraging exercise); id. at 944-46 (February 6, 2020 letter from Jafar Siddiqui, M.D., to Dr. Roth, noting that an epidural steroid injection provided Plaintiff with "significant relief," and noting decreased range of motion in the lumbar spine in flexion and extension, but full strength of his lower extremities, and sensation to light touch intact)).
Plaintiff contends the ALJ's statement that Dr. Roth's opinion suggested that Plaintiff was "nearly bedridden," is an "improper characterization of the record." (Dkt. 7-1 at 19). While Dr. Roth did not state that Plaintiff was "bedridden," he did assess severe limitations in Plaintiff's ability to perform most physical activities. In his discussion of Dr. Roth's opinion, the ALJ accurately recounted the limitations assessed by Dr. Roth and explained why those limitations were more severe than otherwise warranted by the medical record. The ALJ's statement does not require remand.
The Court finds that the ALJ's assessment of Dr. Roth's opinion is proper and well-supported by the record. As required by the regulations applicable to Plaintiff's claim, the ALJ considered both the consistency and the supportability of Dr. Roth's opinion. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Despite the fact that Dr. Roth is Plaintiff's primary care physician, under the new regulations, his opinion is not entitled to any special deference. Further, even under the old regulations, it is well-settled that an ALJ may reject a treating physician's opinion if it is internally inconsistent or if it is inconsistent with other substantial evidence in the record. See, e.g., Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). Plaintiff has failed to articulate any basis as to why the ALJ's assessment of Dr. Roth's opinion is improper. Accordingly, remand is not required on this basis.
CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 8) is granted, and Plaintiff's motion for judgment on the pleadings (Dkt. 7) is denied.
SO ORDERED.