Tarbell v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
ROBERT T.,
Plaintiff,
v. 	5:25-CV-00044 (FJS/TWD)
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
HILLER COMERFORD INJURY 	JUSTIN GOLDSTEIN, ESQ.
& DISABILITY LAW
Attorney for Plaintiff
6000 N. Bailey Ave., Suite 1A
Amherst, NY 14226
SOCIAL SECURITY ADMINISTRATION 	KRISTINA D. COHN, ESQ.
OFFICE OF GENERAL COUNSEL
Attorney for Defendant
6401 Security Boulevard
Baltimore, MD 21235
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT AND RECOMMENDATION
I. 	INTRODUCTION
This matter was referred to the undersigned for Report and Recommendation by the
Honorable Frederick J. Scullin, Jr., United States District Judge, pursuant to 20 U.S.C. § 636(b)
and Northern District of New York Local Rule 72.3. This case has proceeded in accordance with
General Order 18 of this Court which sets forth the procedures to be followed when appealing a
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 1 of 20

2
denial for Social Security Benefits. Both parties filed briefs, which the Court treats as motions
under Federal Rule of Civil Procedure Rule 12(c) in accordance with General Order 18. Dkt.
Nos. 10, 11. Plaintiff filed a reply brief which simply relied on his original arguments and
authority as set forth in his primary brief. Dkt. No. 12. Oral argument was not heard. For the
reasons set forth below, the Court recommends that Plaintiff’s motion be denied, Defendant’s
motion be granted, and the Commissioner’s decision be affirmed.
II. 	BACKGROUND
Plaintiff was born in 1978. T. 222.1 He has a high school education. T. 266. He
previously worked as a customer service representative, laborer, nursing aid, tire technician, and
waiter/cook. Id. Plaintiff protectively filed Title XVI and Title II applications for Supplemental
Security Income and Disability Insurance Benefits, alleging disability beginning December 20,
2016, due to a back injury, a left knee injury, neurofibromatosis, depression, asthma, and
gastroesophageal reflux disorder. T. 222-27, 228-34, 265.
Plaintiff’s initial claims were administratively denied on February 4, 2019, and again on
reconsideration on April 10, 2019. T. 100, 108, 125, 137.2 This determination was upheld after
a disability hearing and a decision of an Administrative Law Judge (“ALJ”) dated August 20,
2020. T. 39-68, 11-28. The Appeals Council denied Plaintiff’s request for review on March 19,
2021, and Plaintiff thereafter commenced a proceeding in the Northern District of New York. T.
1 The Administrative Record/Transcript is found at Dkt. No. 9. Citations to the Transcript will
be referenced as “T.” and the Bates-stamped page numbers as set forth therein will be used rather
than the page numbers the Court’s CM/ECF electronic filing system assigns. Citations to the
parties’ submissions will use page numbers assigned by CM/ECF, the Court’s electronic filing
system.
2 The Court notes the Administrative Law Judge and both parties state the claims were initially
denied on February 7, 2019, and upon reconsideration on April 12, 2019. Dkt. No. 10 at 1, T.
11. After a review of the record, the correct dates are as noted.
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 2 of 20

3
1-7. By a decision dated March 2, 2023, Magistrate Judge David E. Peebles remanded the case
to the Commissioner for further administrative proceedings. T. 1264-84.
On July 13, 2023, the Appeals Council likewise remanded Plaintiff’s claim for further
proceedings. T. 1287-91. On August 9, 2024, ALJ Mary Pelton held a hearing at which Plaintiff
and vocational expert (“VE”) Christine Ditrinco testified. T. 1194-1228. On September 25,
2024, the ALJ again found Plaintiff was not disabled under the Social Security Act. T. 1184. In
response, Plaintiff commenced this action on January 8, 2025. Dkt. No. 1.
III. 	LEGAL STANDARDS
A. 	Standard of Review 3
In reviewing a final decision of the Commissioner, a court must first determine whether
the correct legal standards were applied, and if so, whether substantial evidence supports the
decision. Atwater v. Astrue, 512 F. App’x 67, 69 (2d Cir. 2013). “Failure to apply the correct
legal standards is grounds for reversal.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004)
(internal quotation marks and citation omitted). Therefore, a reviewing court may not affirm the
ALJ’s decision if it reasonably doubts whether the proper legal standards were applied, even if
the decision appears to be supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983,
986-87 (2d Cir. 1987).
A court’s factual review of the Commissioner’s final decision is limited to the
determination of whether there is substantial evidence in the record to support the decision. 42
U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). “Substantial evidence
3 While the Supplemental Security Income program has special economic eligibility
requirements, the requirements for establishing disability under Title XVI, 42 U.S.C. §
1382c(a)(3) and Title II, 42 U.S.C. § 423(d), are identical, therefore, “decisions under these
sections are cited interchangeably.” Donato v. Sec’y of Dep’t of Health & Hum. Servs. of U.S.,
721 F.2d 414, 418 n.3 (2d Cir. 1983) (citation omitted).
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 3 of 20

4
means more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Sczepanski v. Saul, 946 F.3d 152, 157 (2d Cir.
2020) (internal quotation marks and citation omitted). If the ALJ’s finding as to any fact is
supported by substantial evidence, it is conclusive. 42 U.S.C. § 405(g); Diaz v. Shalala, 59 F.3d
307, 312 (2d Cir. 1995). Further, where evidence is deemed susceptible to more than one
rational interpretation, the ALJ’s conclusion must be upheld. See Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983).
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)
(citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)) (additional citation
omitted). If supported by substantial evidence, the Commissioner’s findings must be sustained
“even where substantial evidence may support the plaintiff’s position and despite that the court’s
independent analysis of the evidence may differ from the [Commissioner’s].” Rosado v.
Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Rutherford, 685 F.2d at 62) (additional
citations omitted). A reviewing court cannot substitute its interpretation of the administrative
record in place of the Commissioner’s if the record contains substantial support for the ALJ’s
decision. See Rutherford, 685 F.2d at 62.
When inadequacies in the ALJ’s decision frustrate meaningful review of the substantial
evidence inquiry, remand may be appropriate. See Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir.
2019); Pratts v. Chater, 94 F.3d, 34, 39 (2d Cir. 1996). Remand may also be appropriate where
the ALJ has failed to develop the record, adequately appraise the weight or persuasive value of
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 4 of 20

5
witness testimony, or explain his reasonings. See Klemens v. Berryhill, 703 F. App’x 35, 35-38
(2d Cir. 2017); Rosa v. Callahan, 168 F.3d 72, 82 (2d Cir. 1999); Estrella, 925 F.3d at 98;
Burgess v. Astrue, 537 F.3d 117, 130 (2d Cir. 2008); Pratts, 94 F.3d at 39.
B. 	Standard for Benefits
To be considered disabled, a plaintiff seeking disability benefits must establish he is
unable “to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death, or which has lasted or
can be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. §
423(d)(1)(A). Additionally, the claimant’s:
physical or mental impairment or impairments [must be] of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
Id. § 423(d)(2)(A).
The Social Security Administration regulations outline a five-step process to determine
whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; 	(4) 	based 	on 	a 	“residual 	functional 	capacity”
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the
claimant can perform given the claimant’s residual functional
capacity, age, education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess, 537 F.3d at 120; 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). The claimant bears the burden of proof regarding
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 5 of 20

6
the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). If the claimant meets his
or her burden of proof, the burden shifts to the Commissioner at the fifth step to prove the
claimant is capable of working. Id.
IV. 	THE ALJ’S DECISION
In applying the five-step disability sequential evaluation, the ALJ determined Plaintiff
engaged in substantial gainful activity from July 1, 2021, through the date of the decision. T.
1161-63. “However, there had been a continuous 12-month period(s) during which the claimant
did not engage in substantial gainful activity.” T. 1163. The ALJ’s remaining findings address
the period(s) Plaintiff did not engage in substantial gainful activity. Id.
At step two, the ALJ found Plaintiff had severe impairments of osteoarthritis of the
bilateral knees, status-post left knee “unicompartmental” replacement, status-post right knee
arthroscopic meniscectomy, degenerative disc disease of the lumbar spine, and asthma. Id. At
step three, the ALJ determined Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. Id.
Before reaching step four, the ALJ concluded Plaintiff had the residual functional
capacity (“RFC”) to perform sedentary work, except
no climbing ladders, ropes, or scaffolds; occasional climbing ramps
and stairs; never balancing as defined by the SCO; occasional
stooping and crouching; no kneeling or crawling; he should avoid
concentrated exposure to fumes, odors, dusts, gases, or poor
ventilation; and he should avoid exposure to hazards such as
unprotected heights and dangerous moving machinery.
T. 1169.
In making the RFC determination, the ALJ considered all of Plaintiff’s symptoms and the
extent to which those symptoms could “reasonably be accepted as consistent with the objective
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 6 of 20

7
medical evidence and other evidence, based on the requirements of 20 C.F.R. §§ 404.1529,
416.929 and [Social Security Ruling] 16-3p.” Id. The ALJ further stated she considered the
medical opinions and prior administrative medical findings pursuant to 20 C.F.R. §§ 404.1520c
and 416.920c. Id. The ALJ found Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, Plaintiff’s statements
concerning the intensity, persistence and limiting effect of these symptoms were not entirely
consistent with the medical evidence and other evidence in the record. T. 1177. Proceeding to
step four of the sequential evaluation, the ALJ determined Plaintiff did not have past relevant
work. T. 1182. After considering Plaintiff’s age, education, work experience, and RFC, she
determined there were jobs that exist in significant numbers in the national economy that
Plaintiff could perform. Id. The ALJ concluded Plaintiff had not been under a disability, as
defined by the Social Security Act from December 20, 2016, through the date of her decision. T.
1183.
V. 	CONTENTIONS
Plaintiff contends “[t]he RFC was not based on substantial evidence, as the ALJ cherry-
picked the opinion and relied on stale opinion evidence and her own lay opinion.” Dkt. No. 10 at
15; see also id. at 15-26. Defendant counters that in determining Plaintiff’s RFC, the ALJ
properly considered the medical opinions of record, including the opinions of the State agency
medical consultants and the opinion of Plaintiff’s treating physician, Dr. Robert Feldman. Dkt.
No. 11 at 7-17. The Commissioner also argues the ALJ’s step five finding is supported by
substantial evidence. Id. at 17-18.
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 7 of 20

8
VI. 	DISCUSSION
A. 	The ALJ’s Reliance on the State Agency Medical Opinions was Proper
Because the Opinions were Not Stale
Plaintiff contends the opinions of State agency medical consultants Dr. Vazquez Gonzalez
and Dr. J. Koenig were stale. Dkt. No. 10 at 16-20. For the reasons set forth below, the Court
finds this argument meritless.
“[M]edical source opinions that are conclusory, stale, and based on an incomplete
medical record may not be substantial evidence to support an ALJ finding.” Camille v. Colvin,
104 F. Supp. 3d 329, 343 (W.D.N.Y. 2015), aff’d, 652 F. App’x 25 (2d Cir. 2016). While a
medical opinion is not necessarily stale based on its age, it may be stale if it does not account for
a plaintiff’s deteriorating condition. See Samantha T. v. Comm’r of Soc. Sec., No. 1:22-cv-139
(JGW), 2024 WL 4582825, at *5 (W.D.N.Y. Oct. 25, 2024) (internal citations omitted). That
said, “[a] more dated opinion may constitute substantial evidence if it is consistent with the
record as a whole notwithstanding its age.” Anthony F. v. Comm’r of Soc. Sec., No. 23-cv-33-
FPG, 2023 WL 7294874, at *4 (W.D.N.Y. Nov. 6, 2023) (internal quotation omitted).
Moreover, “[t]he fact that plaintiff elected to have surgery, however, does not render [a prior
medical] opinion stale.” Billy B. v. Comm’r of Soc. Sec., No. 20-CV-0036MWP, 2021 WL
3191882, at *6 (W.D.N.Y. July 28, 2021) (internal citation omitted); see also Alexander v.
Comm’r of Soc. Sec., No. 19-cv-762, 2020 WL 5642184, at *3 (W.D.N.Y. 2020) (“[a]
subsequent surgery, however, is insufficient, standing alone to render a medical opinion stale”)
(collecting cases). “Where the submitted evidence did not directly contradict a doctor’s opined
limitations, and further, the ALJ analyzed the recent evidence, the doctor’s opinion was not
impermissibly stale.” Robin H. v. Comm’r of Soc. Sec., No. 1:21-CV-507-DB, 2023 WL
3645489, at *13 (W.D.N.Y. May 25, 2023). Plaintiff bears the burden of showing that his
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 8 of 20

9
condition deteriorated after the medical opinions were provided. See Christopher C. v. Comm’r
Soc. Sec., No. 20-cv-1774, 2022 WL 16797970, at *4 (W.D.N.Y. Nov. 8, 2022) (citing Vincent
B. v. Comm’r of Soc. Sec., 561 F. Supp. 3d 362, 367 (W.D.N.Y. 2021)).
Having reviewed the record, the Court finds Plaintiff has not carried his burden to show
his condition deteriorated after the challenged medical opinions were issued. Medical records
generated after the reviews by the State agency consultants do not reflect that Plaintiff’s
conditions deteriorated. To the contrary, they actually show some improvement. For example,
at Plaintiff’s February 5, 2019, visit with orthopedic specialists, he acknowledged the pain in his
left knee was largely gone with ambulation, and he had no difficulty ambulating. T. 850. His
physical examination showed him to have “full extension flexion” to 135 degrees, no instability,
and minor retropatellar crepitation. Id. The doctor concluded “[a]dequate progress after partial
knee replacement,” and Plaintiff should “continue with home-based exercise program . . . .” Id.
On April 4, 2019, the doctor noted Plaintiff was doing nicely and was not having much
ambulatory discomfort. T. 1070. Plaintiff’s main complaint was having some numbness in the
lateral aspect of his incision, but upon examination he had full extension to 140 degrees, no
instability, and a smooth gait. Id. Plaintiff’s August 6, 2019, appointment showed full
extension, no effusion, no instability, flexion of almost 140 degrees and a normal gait on the left
knee. T. 1063. While he had pain and limited range of motion in his right knee, x-rays of the
right knee were normal. Id. On September 23, 2019, Plaintiff reported he was doing well, and
was not taking any medication for pain but complained of swelling in the right knee. T. 1052.
At the October 29, 2019, appointment, Plaintiff reported he was doing well, and the popping,
catching, and locking of his right knee had diminished dramatically along with the swelling in
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 9 of 20

10
his right knee. T. 1048. The doctor noted Plaintiff’s right knee had improved by 70 percent
since surgery. Id.
Starting in 2020, Plaintiff reported having worsening lower back pain with associated
muscle spasms. T. 1015, 1024. At each of the appointments where he reported lower back pain,
the examination showed Plaintiff used no assistive device, had 5/5 motor strength in his lower
extremities, he had no sensory deficits, and his straight-leg raise testing was negative bilaterally.
T. 1018, 1027, 1775. In February 2024, Plaintiff reported he was doing great following his
January 2024 right knee meniscectomy surgery and most of his right knee pain was gone aside
from a little aching at the end of the day. T. 2063. Plaintiff reported he felt 95 percent better and
only occasionally needed a little Motrin. T. 2064, 2100-01. Additionally, the ALJ found that
this later medical evidence made the opinions of Dr. Gonzalez and Dr. Koenig that Plaintiff
could perform a range of light exertional work only partially persuasive, and thus the ALJ further
limited Plaintiff to sedentary work. T. 1169, 1177-78. As highlighted by the ALJ, Plaintiff
engaged in substantial gainful activity from July 1, 2021, through the date of the decision which
clearly undermines Plaintiff’s claim of significant deterioration. T. 1161; see 20 C.F.R. §§
404.1571, 416.971 (employment during any period of claimed disability may be probative of a
claimant’s ability to work).
Plaintiff also argues “the ALJ doesn’t address, cite or discuss any evidence after
Plaintiff’s first hearing and decision.” Dkt. No. 10 at 20. However, Plaintiff’s first hearing was
June 4, 2020, and the prior ALJ rendered her decision on August 20, 2020. T. 11-28, 1482-1511.
Here, the ALJ explicitly cited Plaintiff’s treatment notes from July 9, 2020, March 3, 2021,
March 17, 2021, April 20, 2021. T. 1173-74. The Court also notes Plaintiff’s treatment records
from St. Joseph’s Physicians Family Medicine-Fayetteville were submitted in reverse
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 10 of 20

11
chronological order, thus in order to review and cite treatment notes from 2021, the ALJ
presumably would have reviewed the 2023 records first. T. 1736-1870. Setting aside such a
presumption, “[t]he Second Circuit has made clear that an ALJ is not required to discuss all
evidence to show that she considered it.” Michele A. v. Kijakazi, No. 6-21-CV-185(MAD), 2022
WL 4225171, at *8 (N.D.N.Y. Sept. 12, 2022). “‘Just as importantly the mere fact that a specific
portion of evidence is not discussed in a decision does not mean that it was not considered.’” Id.
(quoting Strange v. Comm’r of Soc. Sec., No. 13-CV-527, 2014 WL 4637093, at *9 (N.D.N.Y.
Sept. 16, 2014)). Additionally, as noted above, Plaintiff returned to work in July 2021, which
would arguably find him not disabled at step one, therefore obviating the need to discuss any
medical evidence after July 2021 in detail. T. 1161-63; 20 C.F.R. §§ 404.1520(b), 416.920(b)
(“If you are working and the work you are doing is substantial gainful activity, we will find that
you are not disabled regardless of your medical condition.”).
Plaintiff’s citations to the record do not merit a different conclusion. He identifies only
the notes reporting his symptoms rather than the objective findings. Dkt. No. 10 at 18-19, 23-24.
Further, as noted above, Plaintiff was experiencing some improvement in his conditions.
Accordingly, the Court finds Plaintiff has failed to carry his burden of showing a
sufficient deterioration in his condition which would render the opinions of the State agency
consultants stale. Thus, the ALJ properly relied on those opinions.
B. 	The ALJ’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 the ALJ
erred in crafting the RFC because she: (1) improperly formulated the RFC based on her lay
interpretation of the evidence; and (2) improperly rejected the opinion of Robert Feldman, M.D.,
by “cherry-picking” and mischaracterizing the evidence. Dkt. No. 10 at 15-20. The Court has
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 11 of 20

12
considered Plaintiff’s arguments and, for the reasons discussed below, finds them to be without
merit.
1. 	Supportability and Consistency of Medical Opinions
The ALJ must use five factors to determine the persuasiveness of the medical opinion
evidence and prior administrative medical findings: supportability; consistency; relationship with
the claimant; specialization; and any other factors “that tend to support or contradict” the
opinion. 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c); see also Howard, 2021 WL 1152834,
at *11. The ALJ always must “explain how [she] considered the supportability and consistency
factors” because they are “the most important factors,” and she “may, but [is] not required to,
explain how [she] considered the [remaining] factors.” Id. §§ 404.1520c(b)(2), 416.920c(b)(2).
“To analyze supportability, the ALJ must conduct ‘an inquiry confined to the medical
source’s own records that focuses on how well a medical source supported and explained their
opinion.” Ayala v. Kijakazi, 620 F. Supp. 3d 6, 30 (S.D.N.Y. 2022) (quoting Vellone v. Saul, No.
1:20-cv-00261, 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021)). The regulations provide
“[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) . . . the more persuasive the medical
opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1),
416.920c(c)(1).
“With respect to consistency, [t]he more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical and nonmedical
sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical
finding(s) will be.” 20 C.F.R. §§ 404.1520c(c), 416.920c(c)(2). “Consistency is an all-
encompassing inquiry focused on how well a medical source is supported, or not supported, by
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 12 of 20

13
the entire record.” Rua-Campusano v. Kijakazi, No. 20-CV-7087, 2021 WL 7287628, at *10
(S.D.N.Y. Dec. 10, 2021), report and recommendation adopted, 2022 WL 493390 (S.D.N.Y.
Feb. 17, 2022).
2. 	The ALJ did not Rely on Her Own Lay Opinion
Because the ALJ adequately explained how she arrived at the assessed RFC, including by
relying on medical opinion evidence in the record, the Court finds the ALJ’s determination is
supported by substantial evidence. As such, remand is not appropriate on this basis.
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 RFC on the basis
of bare medical findings.” Ortiz v. Colvin, 298 F. Supp. 3d 581, 586 (W.D.N.Y. 2018) (citation
omitted). In other words, “[a]n ALJ is prohibited from playing doctor in the sense that an ALJ
may not substitute his own judgment for competent medical opinion.” Quinto v. Berryhill, No.
3:17-CV-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (citation and internal
punctuation omitted).
“Where an ALJ ‘merely states’ that an examining physician’s opinion is ‘not consistent
with[ ] the overall medical evidence,’ he has failed to adequately explain his conclusions . . . .”
Brianne S. v. Comm’r of Soc. Sec., No. 19-CV-1718-FPG, 2021 WL 856909, at *5 (W.D.N.Y.
Mar. 8, 2021) (citation omitted). But “[a]n RFC finding is administrative in nature, not medical,
and its determination is within the province of the ALJ, as the Commissioner’s regulations make
clear.” Curry v. Comm’r of Soc. Sec., 855 F. App’x 46, 48, n.3 (2d Cir. 2021) (finding it was
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 13 of 20

14
proper for the ALJ “pursuant to his statutory authority . . . [to] consider[ ] the medical and other
evidence in the record in its totality to reach an RFC determination”).
Here, the ALJ limited Plaintiff to performing sedentary work, “except no climbing
ladders, ropes, or scaffolds; occasional climbing ramps and stairs; never balancing as defined by
the SCO; occasional stooping and crouching; no kneeling or crawling; he should avoid
concentrated exposure to fumes, odors, dusts, gases, or poor ventilation; and he should avoid
exposure to hazards such as unprotected heights and dangerous moving machinery.” T. 1169.
The ALJ found Dr. Gonzalez’s and Dr. Koeing’s opinions to have some persuasive value.
T. 1177. However, she was not persuaded by their opinions that Plaintiff “could lift and/or carry
20 pounds occasionally and 10 pounds frequently, stand and/or walk for a total of six hours in
and eight-hour workday, occasionally balance, climb ladders/ropes/scaffolds, kneel, and crawl,
and could tolerate exposure to hazards such as machinery and heights on an unlimited basis.” T.
1177 (citing T. 88-100, 112-125). The ALJ was not persuaded by all of these functional
limitations because the State agency reviewers did not perform physical examinations of
Plaintiff. Id. The ALJ noted in contrast to their opinions “the evidence of record through June
30, 2021 shows the claimant to have some difficulty ambulating, which supports restricting him
to sedentary exertional work, and placing some additional postural and environmental limitations
on his physical ability to perform work-related activities.” T. 1177-78.
On January 3, 2019, Kalyani Ganesh, M.D., completed an internal medicine examination.
T. 839-42. The ALJ found this opinion to have some persuasive value. T. 1178. The ALJ
declined to adopt the determination of Dr. Ganesh that Plaintiff had “severe limitations for
standing, walking, and climbing, and that his use for a walker was necessary.” Id. (citing T.
842). The ALJ noted at the time of Dr. Ganesh’s examination Plaintiff was “still in the healing
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 14 of 20

15
period following his recent partial left knee replacement surgery on December 17, 2018.” T.
1178 (citing T. 841). As a result, Dr. Ganesh was unable to support her opinion by conducting
full testing of Plaintiff. T. 841. The ALJ also declined Dr. Ganesh’s opinion of Plaintiff needing
a walker because Dr. Feldman opined on February 5, 2019, and June 2, 2020, that Plaintiff “did
not require the use of a cane or other assistive device.” T. 1178 (citing T. 876, 1075).
The ALJ declined to adopt orthopedic specialist Dr. Brett Greenky’s February 5, 2019,
April 4, 2019, August 6, 2019, and October 29, 2019, work related assessments. T. 1179.
Although she found them to have some persuasive value, they were based on the Workers’
Compensation Board standards which are not binding under the rules of Social Security. Id.
(citing 20 C.F.R. §§ 404.1504, 416.904).
Thus, the ALJ did more than merely state that a medical source opinion was not
consistent with the overall medical record and thoroughly explained how she arrived at the
persuasive value of each opinion. Cf. David F. v. Comm’r of Soc. Sec., No. 6:20-CV-6822-LJV,
2022 WL 10510389, at *2 (W.D.N.Y. Oct. 18, 2022) (explaining that it is error for an ALJ to do
“nothing more about how or why the various opinions were, or were not, consistent with the
treatment record”) (citation omitted). The ALJ provided ample explanation for the persuasive
values she assigned to the various medical opinions and formulated an RFC consistent with the
entirety of the medical record. T. 1177-81.
3. 	The ALJ’s Assessment of Dr. Feldman’s Opinion
Similarly to the other opinions of record, the ALJ properly evaluated the persuasiveness
of Dr. Feldman’s opinion. Accordingly, the Court finds Plaintiff’s argument that the ALJ
offered little connection to evidence to support her determination regarding Dr. Feldman’s
opinion meritless. Dkt. No. 10 at 18-21.
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 15 of 20

16
a. 	The ALJ’s supportability and consistency analysis was proper.
Dr. Feldman stated he treated Plaintiff since 2015 every six months for routine treatment.
T. 875. Plaintiff’s diagnoses included chronic back pain since 2010 and a history of post-
traumatic stress disorder from a history of sexual abuse. Id. Dr. Feldman reported Plaintiff’s
symptoms of chronic back pain with radiculopathy down his legs; and he noted post-traumatic
stress disorder caused depression and poor sleep. Id. Dr. Feldman opined Plaintiff could sit for
30 minutes at one time and stand for one hour at a time. Id. In an eight-hour workday, Plaintiff
could sit for two hours and stand/walk for at least six hours; he would need a job that permits
shifting positions at will from sitting, standing, or walking; and he would not require the use of a
cane or other assistive device. T. 876. Dr. Feldman opined Plaintiff could never lift and carry
10-50 pounds or reach with his arm including overhead. T. 876. Additionally, Plaintiff could
rarely lift and carry less than 10 pounds, twist, stoop/bend, crouch/squat, climb ladders and
stairs, grasp, turn or twist objects with his hands, and perform fine manipulations with his
fingers. Id. Plaintiff could occasionally look down, turn his head right or left, look up, and hold
his head in a static position. Id. Dr. Feldman noted Plaintiff would need to take unscheduled
breaks frequently during an eight-hour workday for 45 minutes or longer, and he would be off
task more than 20 percent of the time. T. 877. Lastly, Dr. Feldman opined Plaintiff’s
impairments would likely produce good and bad days resulting in Plaintiff being absent from
work more than four days per month. Id.
The ALJ found Dr. Feldman’s opinion to be less persuasive because it was not supported
by his own treatment records. T. 1180. The ALJ noted Dr. Feldman’s “physical exams of the
claimant from December 20, 2016 through June 2, 2020 were essentially within normal limits.”
T. 1180-81 (citing T. 377-79, 382-83, 396-97, 402-03, 405, 530, 532, 552, 679, 681, 708, 710-
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 16 of 20

17
11, 752, 759, 884, 904-05, 1087, 1141, 1816, 1819, 1824). The ALJ further noted “restrictions
that Dr. Feldman placed on the claimant with regard to his ability to perform manipulative
activities and move his head are also not supported by Dr. Feldman’s treating notes.” T. 1181.
Physical exams by Dr. Feldman did not disclose any reduced range of motion in Plaintiff’s neck,
shoulders, arms, hands, or fingers. T. 377-79, 382-83, 396-97, 402-03, 405, 530, 532, 552, 679,
681, 708, 710-11, 752, 759, 884, 904-05, 1087, 1141, 1816, 1819, 1824. Regarding consistency,
the ALJ compared Dr. Feldman’s limitations with those of Drs. Gonzalez, Koenig, Ganesh, and
Greenky, “none of whom found the claimant to have any limitation in his ability to move his
head, neck, hand, fingers, or arms.” T. 1181.
Plaintiff further argues the ALJ should have adopted Dr. Feldman’s opinion regarding
absenteeism and time off task. Dkt. No. 10 at 18. However, the ALJ noted this limitation was
also inconsistent with other medical evidence because no other medical source placed any
limitation on Plaintiff’s need to take unscheduled breaks. T. 1181. Further, Dr. Feldman’s own
findings showed Plaintiff has normal attention and concentration. T. 402-403, 405, 530, 532,
552, 679, 681, 708, 710-11, 752, 759, 884, 904-905, 1087, 1141, 1816, 1819, 1824. The ALJ
also noted Dr. Feldman’s opinion of Plaintiff’s absenteeism was inconsistent with the intact
musculoskeletal and neurological findings on exam, and with evidence the Plaintiff had been
working on a continuous basis since July 2021. T. 1181 (citing T. 1027, 1081, 1098, 1101, 1113,
1200-02, 1597, 1599-1600, 1615, 1621, 1625, 1631, 1639, 1644, 1671, 1814, 1894, 2022).
Accordingly, the Court finds no error in the ALJ’s evaluation of Dr. Feldman’s opinion.
b. 	The ALJ did not improperly “cherry-pick” medical evidence.
Plaintiff also contends the ALJ improperly rejected the opinion of Dr. Feldman by
“cherry-picking” evidence in the record and impermissibly relying on certain evidence. Dkt. No.
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 17 of 20

18
10 at 21-26. As outlined above, the Court does not agree with Plaintiff’s argument and finds that
the ALJ properly weighed the entirety of the record in determining the persuasive value of Dr.
Feldman’s opinion.
It is well-settled that “an ALJ is not permitted to ‘cherry pick’ evidence that supports his
RFC finding.” Michelle J. v. Comm’r of Soc. Sec., No. 1:21-CV-00306 CJS, 2023 WL 2623587,
at *4 (W.D.N.Y. Mar. 24, 2023) (defining cherry-picking as “inappropriately crediting evidence
that supports administrative conclusions while disregarding differing evidence from the same
source”) (citations omitted). “Courts frequently remand an ALJ’s decision when it ignores or
mischaracterizes medical evidence or cherry-picks evidence that supports his RFC determination
while ignoring other evidence to the contrary.” Jackson v. Kijakazi, 588 F. Supp. 3d 558, 585
(S.D.N.Y. 2022); see also Estrella, 925 F.3d at 97 (“When viewed alongside the evidence of the
apparently cyclical nature of Estrella’s depression, the ALJ’s two cherry-picked treatment notes
do not provide ‘good reasons’ for minimalizing Dr. Dron’s opinion.”). However, “an allegation
of cherry-picking is seldom successful because crediting it would require a court to re-weigh
record evidence,” and “what a claimant may label as cherry-picking can often be described more
neutrally as weighing the evidence.” Lisa T. v. Kijakazi, No. 3:20-CV-1764 (SVN), 2022 WL
2207613, at *3 (D. Conn. June 21, 2022) (quotations and citations omitted).
As explained above, the ALJ appropriately weighed the evidence and thoroughly
explained his rationale for the persuasive value assigned to Dr. Feldman’s opinion. To support
his cherry-picking argument, Plaintiff contends that the ALJ improperly relied on the opinions of
Dr. Gonzalez and Dr. Koenig when Dr. Feldman’s opinion was offered around the same period.
Dkt. No. 10 at 21. This consideration was made in the context of weighing the persuasive value
of Dr. Feldman’s opinion evidence. It is well-settled that it is improper for a reviewing court to
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 18 of 20

19
“decide facts, reweigh evidence, or substitute its judgment for that of the Commissioner,” Kyle
Paul S. v. Kijakazi, No. 3:20-CV-01662 (AVC), 2021 WL 6805715, at *6 n.12 (D. Conn. Nov.
16, 2021), and the Court will not do so here.
As detailed above, it is the responsibility of the ALJ and not this Court “to weigh the
conflicting evidence in the record.” Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.
1998). As the Court explained, the ALJ provided ample reasoning to support her determinations
for the persuasive values she assigned to the various medical opinions. In doing so, the ALJ
reasonably determined that Dr. Feldman’s opinion, which provided that Plaintiff required greater
limitations in the workplace, was less persuasive because his conclusions were not supported by
his own treatment notes or the overall medical record. T. 1180-81. The ALJ still found that
Plaintiff needed to be limited to sedentary work as set forth in the RFC. T. 1169, 1177-78. In
arriving at the RFC, the ALJ’s reasoning “must always be ‘sufficiently discernible as to allow a
reviewing court to ensure that the ALJ employed the proper standards and rendered a decision
supported by substantial evidence.’” Gail F. v. Comm’r of Soc. Sec., No. 21-CV-120-FPG, 2022
WL 17578465, at *4 (W.D.N.Y. Dec. 12, 2022) (quoting Moss v. Comm’r of Soc. Sec., No. 18-
CV-365, 2020 WL 896561, at *3 (W.D.N.Y. Feb. 25, 2020)). The Court has no difficulty
gleaning the basis for the ALJ’s RFC finding from her decision and it therefore rejects Plaintiff’s
argument that the ALJ cherry-picked and mischaracterized the evidence. Remand is accordingly
not warranted on this basis.
VII. 	CONCLUSION
WHEREFORE for the reasons stated herein, it is hereby
RECOMMENDED that the Plaintiff’s motion for judgment on the pleadings (Dkt. No.
10) be DENIED; and it is further
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 19 of 20

20
RECOMMENDED that Defendant’s motion for judgment on the pleadings (Dkt. No.
11) be GRANTED; and it is further
RECOMMENDED that the Commissioner’s decision denying Plaintiff benefits be
AFFIRMED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file
written objections to the foregoing report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72.
Dated: February 3, 2026
Syracuse, New York
Case 5:25-cv-00044-FJS-PJE Document 13 Filed 02/03/26 Page 20 of 20