Difiglia v. Commissioner of the Social Security Administration

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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BURTON DIFIGLIA,

Plaintiff,

MEMORANDUM AND ORDER

-against- 22-CV-6825 (KAM)

COMMISSIONER OF THE SOCIAL SECURITY

ADMINISTRATION,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Burton Difiglia (“Plaintiff”) brings this action

under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3), seeking

judicial review of the Social Security Administration’s (“SSA”)

denial of his claim for supplemental security income. The parties

have cross-moved for judgment on the pleadings. (ECF Nos. 14,

15.) For the reasons set forth below, the Court respectfully

DENIES Plaintiff’s motion for judgment on the pleadings and GRANTS

the Commissioner’s cross-motion.

BACKGROUND

The parties have filed a joint stipulation of relevant facts,

which the court has reviewed and incorporates by reference. (See

generally ECF No. 16, Joint Stipulation of Facts (“Stip.”).)

I. Factual and Procedural Background

Plaintiff was 25 years old on the alleged onset date of his

disability, and formerly worked as a sales representative at a car

dealership, a cellphone store, and a shoe store. (Stip. at 1.)

Plaintiff testified that he stopped working following a nervous

breakdown brought on by heightened stress at work and was unable

to return to his sales position due to stress and panic attacks.

(Id. at 3.) Prior to the alleged onset date, Plaintiff had a

history of poor mental health and suicide attempts and has been

engaged with various mental health programs. (Id. at 4 – 11).

During a hearing before the SSA, Plaintiff testified that when he

is under stress, he gets “paranoid delusions” which interferes

with his “basic functions at work,” and that he believed his

condition prevents him from working. (ECF No. 13, Administrative

Transcript (“Tr.”) at 41.)

Plaintiff protectively filed an application for supplemental

security income (“SSI”) on February 26, 2020, claiming onset of

disability on January 1, 2019. (Id. at 58.) In connection with

his SSI application, Plaintiff met with two consultative

examiners. First, Dr. Andrea Pollack conducted an orthopedic

examination of Plaintiff on June 16, 2020. (Id. at 570.) Second,

Dr. Paul Herman conducted a psychiatric examination of Plaintiff,

also on June 16, 2020. (Id. at 576.) Two reviewing state agency

examiners, Drs. Ahmed and Weitzen, also opined on Plaintiff’s

psychiatric and physical conditions as part of the disability

review process based on their review of the record. (Id. at 58-

73.)

The Social Security Administration denied Plaintiff’s

application on June 24, 2020, after which Plaintiff filed for

reconsideration on August 3, 2020, and was denied again upon

reconsideration on October 3, 2020. (Id. at 10, 99.) As part of

the reconsideration process, two state agency examiners, Drs.

Kamin and Kirsch, conducted a review of the record and opined on

Plaintiff’s psychiatric and physical limitations. (Id. at 74-91.)

Plaintiff filed a written request for a hearing by an

Administrative Law Judge on November 3, 2020, and a telephonic

hearing was subsequently held on June 8, 2021, before ALJ Patrick

Kilgannon (the “ALJ”). (Id. at 10.)

By decision dated June 25, 2021, the ALJ determined that

Plaintiff was not disabled within the meaning of the Social

Security Act (the “Act”) since February 26, 2020, the application

date. (Id. at 21.) Plaintiff appealed the ALJ’s decision to the

Appeals Council on June 28, 2021. (Id. at 182.) The appeal was

denied September 26, 2022, and Plaintiff filed the instant action

on November 8, 2022. (Id. at 1; ECF No. 1, Complaint.)

II. Hearing before the ALJ

Plaintiff was represented by attorney Francis Kehoe at the

June 8, 2021, hearing before the ALJ, and medical expert Gerald P.

Koocher and vocational expert Yaakov Taitz both offered testimony.

(Tr. at 27.)

Plaintiff’s hearing before the ALJ began with testimony from

Dr. Koocher, an expert in the field of psychology. (Id. at 28-

29.) Dr. Koocher discussed Plaintiff’s mental health history, and

noted that Plaintiff “went through a period of significant

instability in 2019 where he had multiple . . . short-term

psychiatric hospital admissions” but that “since 2019, [Plaintiff]

has actually been able to do reasonably well in terms of coping

and being out of the house.” (Id. at 31-32.) Dr. Koocher further

testified that Plaintiff “probably could not have been employed

during 2019, but in the period after that,” Plaintiff’s condition

improved. (Id. at 33.) Dr. Koocher also answered questions from

Plaintiff’s attorney, who asked about portions of medical opinions

that found more severe restrictions than Dr. Koocher assessed.

(Id. at 35-38.)

Following Dr. Koocher’s testimony, Plaintiff was examined by

his attorney, and testified as to the reasons he previously stopped

working, as well as the conditions affecting his ability to work.

(Id. at 39-41.) Plaintiff explained that he was currently taking

Tramadol and Cymbalta for his conditions and described some of the

side effects of the medications. (Id. at 42.) The ALJ

subsequently called on vocational expert Yaakov Taitz (the “VE”)

to offer testimony. (Id. at 43-44.) To provide further

clarification on Plaintiff’s work history for the VE, the ALJ

questioned Plaintiff as to his prior work as a sale associate with

respect to cellular telephones. (Id. at 44-45.) Plaintiff noted

that he stood most of the time at a kiosk while working, and the

VE classified his past work as being a sales associate or a sales

person. (Id. at 45-47.)

The ALJ subsequently asked the VE to consider a person of the

Plaintiff's age, education, and work experience, who “could lift

or carry up to 50 pounds occasionally, and 20 pounds frequently;

can stand and/or walk about six hours in an eight hour workday,

and sit about six hours in an eight hour workday; in terms of

postural limitations, assume the individual can frequently --

ropes, scaffolds, ramps, and stairs, and can frequently crawl”

(Id. at 48.) The VE testified that such a person could perform

Plaintiff’s past work, either as it is customarily performed or as

he specifically performed it. (Id.) In a second hypothetical,

the ALJ added in mental non-exertional limitations, and asked the

VE to “assume the individual is capable of performing simple,

routine tasks; can sustain concentration for simple, routine

tasks; can maintain a schedule; can make simple work-related

decisions; can occasionally interact with supervisors, coworkers,

and the public; and can occasionally adapt to changes in the work

setting.” (Id. at 48-49.) The VE testified that such an

individual would not be able to perform Plaintiff’s past work, but

could perform work as a Hand Packager, Price Marker, or

Housekeeping Cleaner. (Id. at 49-50.)

The ALJ next asked the VE to consider a person who would have

to be absent in excess of four days per month. (Id. at 50.) The

VE confirmed that while missing one day of work per month would be

acceptable, four days missed per month would preclude the

hypothetical individual from employment. (Id.) Last, in response

to a question from Plaintiff’s attorney about an individual that

was “unable to regulate their emotions, resulting in them

occasionally being interrupted in the workplace for up to a third

of a day,” the VE confirmed such a condition would prevent an

individual from performing work. (Id. at 51.) The VE elaborated

that no more than 10% time off-task would be tolerated in

competitive employment. (Id. at 51-52.)

III. The ALJ’s Decision

Pursuant to the SSA regulations, an ALJ follows a five-step

process for evaluating disability claims, which has been

summarized as follows:

First, the Commissioner considers whether the claimant

is currently engaged in substantial gainful activity. If

[s]he is not, the Commissioner next considers whether

the claimant has a “severe impairment” which

significantly limits h[er] physical or mental ability to

do basic work activities. If the claimant suffers such

an impairment, the third inquiry is whether, based

solely on medical evidence, the claimant has an

impairment which is listed in Appendix 1 of the

regulations. If the claimant has such an impairment, the

Commissioner will consider h[er] [per se] disabled....

Assuming the claimant does not have a listed impairment,

the fourth inquiry is whether, despite the claimant's

severe impairment, [s]he has the residual functional

capacity to perform h[er] past work. Finally, if the

claimant is unable to perform h[er] past work, the

Commissioner then determines whether there is other work

which the claimant could perform.

Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing

DeChirico v. Callahan, 134 F.3d 1177, 1179–80 (2d Cir. 1998)).

“The applicant bears the burden of proof in the first four steps

of the sequential inquiry; the Commissioner bears the burden in

the last.” Id. To determine the claimant’s residual functional

capacity (“RFC”), the ALJ must consider the claimant’s

“impairment(s), and any related symptoms, [that] may cause

physical and mental limitations that affect what [the claimant]

can do in a work setting.” 20 C.F.R. § 404.1545(a)(1).

In the instant case, the ALJ denied Plaintiff’s application

for SSI on June 25, 2021. (Tr. at 7.) Following the five-step

process set forth in SSA regulations, the ALJ found at step one

that Plaintiff had not engaged in substantial gainful activity

since February 26, 2020, the application date. (Id. at 12.) At

step two, the ALJ determined that Plaintiff had the “following

severe impairments: degenerative disc disease of the lumbar spine;

major depressive disorder; anxiety disorder.” (Id.) The ALJ also

determined that Plaintiff’s other alleged impairment — obesity —

was not sufficiently severe as to satisfy the step two criteria.

(Id.)

At step three, the ALJ found that Plaintiff’s impairments did

not meet or were not the medical equivalent of any listed

impairments in the Disability Listings. (Id. at 13.) The ALJ

considered listings in section 1.00 (Musculoskeletal Disorders)

but found that “[n]o treating or examining physician has proffered

findings that are equivalent in severity to the criteria of these

or any other listed impairment.” (Id.)

The ALJ next evaluated whether Plaintiff’s mental impairments

met Listings 12.04 (regarding affective disorders, including

depression), or 12.06 (regarding anxiety-related disorders).

(Id.) The ALJ found that Plaintiff did not meet any of the

“paragraph B” criteria for Listings 12.04 and 12.06. (Id. at 13-

14.) Specifically, the ALJ found that Plaintiff had no more than

a moderate limitation to his ability to understand, remember, or

apply information; interact with others; concentrate, persist, or

maintain pace; and adapt or manage himself. (Id. at 14.) Because

the ALJ found that Plaintiff exhibited no “marked” or “extreme”

limitations, the ALJ concluded that Plaintiff did not satisfy the

paragraph B criteria. (Id.) The ALJ likewise found that Plaintiff

did not satisfy the “paragraph C” criteria for either listing.

(Id.)

Having found that Plaintiff did not meet the criteria of

Listings 1.15, 1.16, 1.18, 12.04, and 12.06, the ALJ next assessed

Plaintiff’s RFC as follows:

[T]he claimant has the residual functional capacity to

perform medium work as defined in 20 C.F.R. § 416.967(c)1

except he is capable of lifting, carrying, pushing and

pulling up to 50 pounds occasionally and 20 pounds

frequently, and can sit 6 hours and stand/or walk 6 hours

in an 8-hour workday, and can frequently climb and crawl,

and is only capable of performing simple routine tasks,

can sustain concentration for simple routine tasks, can

maintain a schedule, can make simple work related

decision[s], can occasionally interact with supervisors,

coworkers and the public and can occasionally adapt to

changes in the work setting.

(Id. at 14-15.) Regarding Plaintiff’s impairments, the ALJ

credited Plaintiff’s claims of symptoms, but found that his

“statements concerning the intensity, persistence and limiting

effects of these symptoms are not entirely consistent with the

medical evidence and other evidence in the record.” (Id. at 16.)

The ALJ noted evidence from Plaintiff’s medical records that his

conditions had been managed by medication, and that his mental

health was improved or doing well, in particular through 2020 and

2021 after his history of hospitalizations in 2019. (Id.) The

ALJ also noted that there was no evidence to substantiate

allegations of severe lower back pain, and that Plaintiff did not

require an assistive device to ambulate or any medication for his

back pain. (Id.)

1 “Medium work involves lifting no more than 50 pounds at a time with frequent

lifting or carrying of objects weighing up to 25 pounds. If someone can do

medium work, [the Social Security Administration] determine[s] that he or she

can also do sedentary and light work.” 20 C.F.R. § 416.967(c).

In reaching his RFC conclusion as to Plaintiff’s physical

abilities, the ALJ evaluated the opinions of the various treating

physicians and considered opinion evidence as to Plaintiff’s

functional capacities. (Id. at 17-19.)

First, the ALJ found the June 2020 opinion of Dr. Andrea

Pollack, a consultative examiner, to be “somewhat persuasive” as

it was based on a complete physical examination. (Id. at 17.)

Dr. Pollack assessed a “moderate restriction in squatting,

bending, lifting, and carrying” and a “mild restriction in walking,

standing, sitting, and climbing.” (Id.) The ALJ found Dr.

Pollack’s opinion to be “largely based upon [Plaintiff’s] self

reporting” and noted that “the record is devoid of any other

evidence to support his allegations of debilitating lower back

pain,” which made the opinion less persuasive. (Id.)

Second, the ALJ found the opinion of consultative examiner

Dr. Paul Herman to be “persuasive” as it was based on an in-person

evaluation and was consistent with treatment notes from other

providers. (Id.) Dr. Herman opined that “there appears to be no

evidence of limitation with respect to this claimant's ability to

understand, remember, or apply simple directions and instructions

and use reason and judgment to make work-related decisions.” (Id.)

Dr. Herman assessed a mild limitation with respect to “sustaining

concentration and performing a task at a consistent pace and with

sustaining an ordinary routine and regularly attending work,” and

an intermittent moderate limitation with respect to “interacting

adequately with supervisors, coworkers, and the public and

regulating emotions.” (Id.)

Third, the ALJ found the opinion of Ms. Anne Marmorale and

Ms. Lauren Kuhnel, Plaintiff’s treating nurse practitioner and

social worker, respectively, “less persuasive” as he found the

opinion “inconsistent with treatment notes reporting [Plaintiff]

to be psychiatrically stable with generally healthy mental status

exams beginning 2020.” (Id. at 17-18.) Ms. Marmorale and Ms.

Kuhnel assessed marked limitations in several areas of mental

functioning and opined that Plaintiff would be absent from work

more than 4 days per month as a result of his condition. (Id.)

Noting that treating opinions are generally given great deference,

the ALJ nonetheless found that the opinion was “not objectively

supported and at times [is] even contradicted by [the providers’]

treatment notes.” (Id. at 18.)

Fourth, the ALJ found the opinions of reviewing state agency

examiners Drs. Kamin and Weitzen to be “generally persuasive” as

they were consistent with the evidence of record and “based upon

thorough reviews of the medical evidence by doctors that are

familiar with the [SSA’s] standards.” (Id.) Dr. Weitzen assessed

moderate limitations in several areas of functioning, and mild

limitations in other areas, an opinion with which Dr. Kamin

concurred. (Id.)

Fifth, the ALJ found the opinion of Dr. S. Ahmed, a reviewing

state agency physician who opined that Plaintiff does not have a

physical impairment causing “greater than a de minimis effect ton

his ability to engage in work related activity” to be “less

persuasive.” (Id.) The ALJ noted that the opinion was based upon

a file review and was “not consistent with that of the consultative

examiner . . . who performed an in-person evaluation.” (Id. at

19.)

Sixth, the ALJ found the opinion of Dr. M. Kirsch, another

reviewing state agency physician, to be “persuasive,” despite also

being based on a record review alone, becuase it was consistent

with the findings of the consultative examiner. (Id.) Dr. Kirsch

opined that Plaintiff “can lift and carry up to 50 pounds

occasionally and up to 20 pounds frequently . . . can sit, stand

and walk for up to 6 hours total in an 8-hour workday . . . [and]

can frequently climb, stoop, and crawl.” (Id.)

Finally, the ALJ noted the testimony of Dr. Koocher, which he

found to be “more persuasive” than that of Plaintiff’s treating

providers. (Id.) The ALJ noted that Dr. Koocher also found the

opinion of Ms. Marmorale and Ms. Kuhnel to be unsupported by the

record, and that Dr. Koocher “testified that [Plaintiff] has done

well since [his hospitalizations in 2019] and is coping since his

last hospital discharge, with no more than mild to moderate

limitations in the [paragraph] B criteria since [2019].” (Id.)

At step four, the ALJ concluded that due to Plaintiff’s severe

impairments, he could not perform his past relevant work as a Sales

Representative, which “requires frequent interaction with

supervisors, coworkers and the public.” (Id. at 20.) At step

five, the ALJ assessed whether “there [were] jobs that existed in

significant numbers in the national economy” considering

Plaintiff’s RFC, age, education, and work experience in

conjunction with the Medical–Vocational Guidelines, 20 C.F.R. Part

404, Subpart P, Appendix 2. (Id.) Because Plaintiff’s RFC was

less than the performance requirements for medium work under the

Medical–Vocational Rules, the ALJ relied on the VE's opinion.

(Id.) The ALJ accepted the VE's testimony that a person with

Plaintiff’s exertional and non-exertional limitations could

perform the jobs of hand packager, price marker, and housekeeping

cleaner, each of which existed in significant numbers in the

national economy. (Id.) The ALJ concluded that Plaintiff was not

disabled within the meaning of the Act. (Id. at 21.)

LEGAL STANDARD

I. Standard of Review

An unsuccessful claimant for disability benefits under the

Act may bring an action in federal court seeking judicial review

of the Commissioner’s denial of his or her benefits. 42 U.S.C. §§

405(g), 1383(c)(3). “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.” Burgess v. Astrue,

537 F.3d 117, 127 (2d Cir. 2008) (quotations and citation omitted);

see also 42 U.S.C. § 405(g). “Substantial evidence is ‘more than

a mere scintilla’” and must be relevant evidence that “a reasonable

mind might accept as adequate to support a conclusion.” Halloran

v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v.

Perales, 420 U.S. 389, 401 (1971)).

In determining whether the Commissioner’s findings were based

on substantial evidence, “the reviewing court is required to

examine the entire record, including contradictory evidence and

evidence from which conflicting inferences can be drawn.” Selian

v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013). It is “up to the

agency,” however, 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). If there is substantial evidence in the

record to support the Commissioner’s findings as to any fact, those

findings are conclusive and must be upheld. See 42 U.S.C. §

405(g); see also Cichocki v. Astrue, 729 F.3d 172, 175–76 (2d Cir.

2013) (per curiam).

Inquiry into legal error requires courts to ask whether the

claimant “has had a full hearing under the [Commissioner’s]

regulations and in accordance with the beneficent purposes of the

[Social Security] Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d

Cir. 2009) (citation omitted; second alteration in original). The

reviewing court does not have the authority to conduct a de novo

review, and may not substitute its own judgment for that of the

ALJ, even when it might have justifiably reached a different

result. Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir.

2012).

II. Determination of Disability

To receive disability insurance benefits (“DIB”) or SSI, a

claimant must be “disabled” under the Social Security Act. 42

U.S.C. §§ 423(a), 1382(a). The claimant is “disabled” when he or

she is unable to “engage in any substantial gainful activity” due

to a “medically determinable physical or mental impairment” that

could be expected to result in death or has lasted for a continuous

period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A).2 The impairment must be of “such severity” that

the claimant cannot do his or her previous work or any other

substantial gainful work that “exists in the national economy.”

42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). In determining whether

the claimant is disabled, the Commissioner must consider (1) the

objective medical facts in the record; (2) diagnoses or medical

opinions based on those facts; (3) subjective evidence of pain or

2 The provisions of the Social Security Act governing DIB and SSI use the same

standards to determine disability. Barnhart v. Thomas, 540 U.S. 20, 24

(2003). Thus, cases addressing disability as to one form of benefits are

equally instructive as to the other. Coughlin v. O'Malley, No. 21-CV-2252

(KAM), 2024 WL 833246, at *3 n.6 (E.D.N.Y. Feb. 28, 2024).

disability; and (4) the claimant's education, age, and work

experience. Duran v. Comm'r of Soc. Sec., 618 F. Supp. 3d 94, 97

(E.D.N.Y. 2022).

DISCUSSION

Plaintiff contends that (1) the ALJ failed to adequately

develop the record with respect to Plaintiff’s lower back pain,

(2) the ALJ failed to consider all of Plaintiff’s severe conditions

at Step 2, (3) the ALJ’s determination that Plaintiff did not meet

or medically equal Listings 12.04 and 12.06 at Step 3 was

erroneous, (4) the ALJ’s Residual Functioning Capacity (“RFC”)

findings were not supported by substantial evidence, (5) the

vocational expert’s (VE) testimony was inconsistent with the

Dictionary of Occupational Titles (DOT), and (6) the ALJ improperly

analyzed opinion evidence. (ECF No. 14-1, Memorandum of Law in

Support of Plaintiff’s Motion for Judgement on the Pleadings (“Pl.

Mem.”), at 3, 4, 8, 14, and 17.)

I. The ALJ Sufficiently Developed the Record

“Whether the ALJ has met his duty to develop the record is a

threshold question that must be determined before the Court reviews

whether the ALJ's final decision is supported by substantial

evidence.” Miranda v. Comm'r of Soc. Sec., No. 22-CV-4226 (PKC),

2023 WL 6385727, at *6 (E.D.N.Y. Sept. 29, 2023) (internal

quotation marks and citation omitted). Even when not raised by a

plaintiff, the Court “must independently consider the question of

whether the ALJ failed to satisfy his duty to develop the Record.”

Sanchez v. Saul, No. 18-CV-12102 (PGG) (DF), 2020 WL 2951884, at

*23 (S.D.N.Y. Jan. 13, 2020), report and recommendation adopted

sub nom. Sanchez v. Comm'r of Soc. Sec., 2020 WL 1330215 (S.D.N.Y.

Mar. 23, 2020). “[B]ecause a hearing on disability benefits is a

nonadversarial proceeding, the ALJ generally has an affirmative

obligation to develop the administrative record.” Burgess v.

Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (citation omitted). This

duty exists “even where, as here, the claimant is represented by

counsel.” Merriman v. Comm'r of Soc. Sec., No. 14-CV-3510 (PGG),

2015 WL 5472934, at *18 (S.D.N.Y. Sept. 17, 2015) (quoting Pratts

v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). “Legal errors regarding

the duty to develop the record warrant remand.” Wilson v. Colvin,

107 F. Supp. 3d 387, 407 (S.D.N.Y. 2015) (collecting cases).

Plaintiff contends that the ALJ failed to fully develop the

record as to Plaintiff’s claims of lower back pain. (Pl. Mem. at

9). However, “where an ALJ has a “complete record before [him]

consisting of medical opinions, treatment notes, and test results

. . . the ALJ did not err in failing to supplement the

administrative record.” Schillo v. Kijakazi, 31 F.4th 64, 76 (2d

Cir. 2022).

In the instant case, prior to any determination of disability,

Plaintiff spoke to a representative regarding his disability

application on April 1, 2020. (Tr. at 227.) The representative

explained that he had “providers on [the] application for mental

health” but that there was also an “allegation of a spine/back

problem” in Plaintiff’s application. (Id.) The representative

asked if Plaintiff was in current treatment for his back, and

Plaintiff stated that he had not seen a doctor for over three

years. (Id.) According to the call summary, Plaintiff reported

that he had experience back pain since he was 18 years old, but

that it “is not why he stopped working” and that he “wishes he

didn’t [put] the back allegation down [because] it’s his mental

health that affects him the most.” (Id.) Asked if the back pain

affected daily tasks or “getting around,” Plaintiff answered that

it did not, but explained that he did not think he could do “manual

labor.” (Id.) The representative closed the call by explaining

that he “may have to order [a consultative examiner] to examine

further.” (Id.)

Plaintiff was subsequently examined by consultative examiner

Dr. Pollack on June 16, 2020. (Id. at 570.) Dr. Pollack documented

Plaintiff’s complaints of back pain and medical history, including

surgery in 2013, and conducted a physical examination, but deferred

conducting an x-ray of the spine. (Id. at 570-72.) Ultimately,

Dr. Pollack assessed moderate and mild restrictions to physical

activity, and diagnosed Plaintiff as having back pain, flat feet,

and elevated blood pressure. (Id. at 572.) The record was also

supplemented with additional medical opinions regarding

Plaintiff’s physical conditions based upon record reviews. (Id.

at 58-91.)

When an ALJ is confronted with a “recognized severe

impairment,” and a lack of evidence of treatment, he or she is

obliged to develop the record more fully to ensure an accurate

assessment of an individual’s RFC. Burger v. Astrue, 282 F. App'x

883, 884-85 (2d Cir. 2008) (summary order). One of the specific

options available in such a situation is “pay[ing] for a

consultative examination where necessary to ensure a developed

record.” Id. at 885. “A consultative examination is used to ‘try

to resolve an inconsistency in the evidence, or when the evidence

as a whole is insufficient to allow [the ALJ] to make a

determination or decision’ on the claim.” Tankisi v. Comm'r of

Soc. Sec., 521 F. App'x 29, 32 (2d Cir. 2013) (summary order)

(citing 20 C.F.R. §§ 404.1519a(b), 416.919a(b)).

Here, confronted with a potential lack of evidence regarding

Plaintiff’s allegations of back pain, for which Plaintiff had

denied treatment for three years and stated the back pain did not

limit him except as to manual labor, (Tr. at 227), Plaintiff

underwent a consultative examination to further develop the

record. Although the ALJ would later state in his opinion that

there is “insufficient evidence” to substantiate Plaintiff’s

allegations of lower back pain, that comment reflects a lack of

evidence within a fully developed record. (Id. at 16.) An ALJ is

permitted to comment on a lack of evidence, and Plaintiff fails to

point to any outstanding medical records in existence that the ALJ

could have helped to obtain. (Pl. Mem. at 9.) Thus, the Court

concludes that the ALJ met his burden to develop the record in the

instant case.

II. The ALJ’s Analysis of Non-Severe Impairments

Plaintiff argues that the ALJ improperly determined that his

obesity was not a severe impairment. (Pl. Mem. at 3). However,

Plaintiff did not raise his obesity as an impairment or limitation

until he filed his brief in this case, beyond noting that his

medical records reflect a diagnosis of obesity. (Tr. at 58, 250.)

Specifically, Plaintiff’s initial application alleged disability

only due to bipolar disorder, anxiety disorder, degenerative disc

disease, and spinal stenosis. (Id. at 58.) Plaintiff argues,

however, that “it was improper for the ALJ to summarily dismiss

[his obesity] and determine that it is non-severe.” (Pl. Mem. at

3.)

Obesity may be considered “severe,” and thus medically equal

to a listed disability, if “alone or in combination with another

medically determinable physical or mental impairment(s), it

significantly limits an individual's physical or mental ability to

do basic work activities.” See Social Security Ruling, SSR 02-

1p; Titles II and XVI: Evaluation of Obesity, 67 FR 57859-02. As

a result, an ALJ must consider the effects of obesity when

evaluating disability. See Social Security Ruling, SSR 00-3p.

Titles II and XVI: Evaluation of Obesity, 65 FR 31039-01.

“However, obesity is not in and of itself a disability, and

an ALJ's failure to explicitly address a claimant's obesity does

not warrant remand.” Browne v. Comm'r of Soc. Sec., 131 F. Supp.

3d 89, 102 (S.D.N.Y. 2015) (internal quotation marks and citation

omitted). “Where the record contains evidence indicating

limitation of function due to obesity, the ALJ must consider the

effect of obesity on the claimant's ability to do basic work

activities at steps two through four of the sequential evaluation

process.” Id. “Conversely, the ALJ's obligation to discuss a

claimant's obesity alone, or in combination with other

impairments, diminishes where evidence in the record indicates the

claimant's treating or examining sources did not consider obesity

as a significant factor in relation to the claimant's ability to

perform work related activities.” Id.

Plaintiff’s counsel did not elicit any testimony from

Plaintiff or raise his obesity during the hearing before the ALJ,

and the Court finds no other evidence in the record indicating

that his obesity limits his ability to function. (Tr. at 28-53.)

Dr. Pollack noted Plaintiff’s obesity in her consultative

examination but did not assess any limitations based on that

condition specifically. (Id. at 570-72.) Additionally, the ALJ

properly considered Plaintiff’s non-severe medically determinable

impairment of obesity when assessing his RFC, noting Plaintiff’s

height and weight as measured by the consultative examiner. (Id.

at 16). As such, even if the ALJ had erred at step two, the error

was harmless insofar as the ALJ considered both Plaintiff’s severe

and non-severe impairments in the later steps. See Rivera v.

Colvin, 592 F. App’x 32, 33 (2d Cir. 2015) (summary order).

Plaintiff offers no explanation as to how the ALJ’s

consideration of his obesity would indicate a lack of substantial

evidence for the ALJ’s decision, beyond noting that “this type of

weight would negatively affect [Plaintiff’s] lower back

condition.” (Pl. Mem. at 3.) The Court finds this argument to be

without merit, and thus, the ALJ did not err in finding that

Plaintiff’s obesity was not a severe impairment. See, e.g.,

Browne, 131 F. Supp. 3d at 102 (ALJ did not err in failing to

address obesity when record was “devoid of any evidence” that

obesity limited plaintiff’s ability to function); Britt v. Astrue,

486 F. App'x 161, 163 (2d Cir. 2012) (summary order) (ALJ did not

err in determining that obesity was not a severe impairment where

the claimant “did not furnish the ALJ with any medical evidence

showing how the[] alleged impairment[] limited his ability to

work”); Mancuso v. Astrue, 361 F. App'x 176, 178 (2d Cir. 2010)

(summary order) (ALJ did not err in consideration of obesity where

“there [was] no factual basis for thinking that ‘any additional

and cumulative effects of obesity’ limited [the claimant's]

ability to perform light work”) (quoting 20 C.F.R. Pt. 404, Subpt.

P, App. 1, § 1.00Q).

III. The ALJ’s Assessment of Listed Impairments

Plaintiff argues that the ALJ did not properly evaluate at

step three whether Plaintiff’s severe impairments met or were

medically equivalent to Listings 12.04 and 12.06. (Pl. Mem. At

4.) Specifically, Plaintiff contends that the ALJ mistakenly

determined that the “paragraph B” criteria were not satisfied even

though “it is clear that Plaintiff’s mental health conditions -

and his symptoms associated therewith – causes marked limitations

in each of the areas of mental functioning.” (Id. at 4). The

Court does not find Plaintiff’s argument persuasive.

Each Listing states “the objective medical and other findings

needed to satisfy the criteria of that listing.” 20 C.F.R. §

404.1525(c)(3). “To satisfy their burden, claimants must ‘meet

all of the specified medical criteria [in the listing]. An

impairment that manifests only some of those criteria, no matter

how severely, does not qualify.’” Flores v. Comm'r of Soc. Sec.,

644 F. Supp. 3d 53, 64 (S.D.N.Y. 2022) (quoting Sullivan v. Zebley,

493 U.S. 521, 530 (1990)). “Additionally, a court may be able to

uphold an ALJ's finding that a plaintiff does not meet a Listing

even where the decision lacks an express rationale for that finding

if the determination is supported by substantial evidence.” Wayne

P. v. Kijakazi, No. 22-CV-653, 2023 WL 3949877, at *4 (N.D.N.Y.

June 12, 2023) (citation omitted).

As discussed supra, the ALJ specifically addressed listings

12.04 and 12.06 in his step three analysis. To meet the “paragraph

B” criteria of listing 12.04 or 12.06, a plaintiff must establish

an extreme limitation of one area or a marked limitation of two

areas of mental functioning, which include (1) understanding,

remembering or applying information, (2) interacting with others,

(3) concentrating, persisting or maintaining pace, and (4)

adapting or managing oneself. 20 C.F.R. § Pt. 404, Subpt. P, App.

1. In his decision, the ALJ explicitly discussed each of the

paragraph B criteria, and cited evidence in the record supporting

each consideration. (Tr. at 13-14.) In particular, the ALJ relied

on a medical opinion from Dr. Paul Herman, a consultative examiner,

Plaintiff’s treatment records, and also discussed Plaintiff’s

activities of daily living. (Id.)

Ultimately, the ALJ found that Plaintiff has no more than

moderate limitations in understanding, remembering or applying

information; in interacting with others; in concentrating,

persisting or maintaining pace; and in adapting and managing

oneself. (Id. at 14.) In support of these findings, the ALJ noted

consultative examiner Dr. Herman’s opinion that Plaintiff had some

deficits in his recent memory skills, but that his remote memory

skills were intact. (Id.). The ALJ cited Dr. Herman’s observation

that plaintiff was “cooperative with adequate social skills.”

(Id.) The ALJ noted that Plaintiff’s attention and concentration

skills were “generally not observed to be impaired,” citing to

Plaintiff’s mental health treatment records. (Id.) The ALJ

considered that Plaintiff was observed as “irritable” and “snappy”

with others and had had a girlfriend in the past who broke up with

him in determining he would have moderate difficulties in

interacting with others. (Id.) The ALJ also noted Plaintiff’s

previous history of suicide attempts, but explained that “since

his application date, [Plaintiff] has generally been able to

regulate his emotions, with a few episodes of lapses” in assessing

a moderate limitation to adapting or managing oneself. (Id.) The

ALJ therefore concluded that Plaintiff's mental impairments did

not cause at least two marked limitations or one extreme

limitation, and that the paragraph B criteria of Listings 12.04

and 12.06 were not satisfied. (Id.)

a. Plaintiff’s Limitation to Understanding, Remembering,

or Applying Information

Turning first to the ALJ’s assessment that Plaintiff had a

moderate limitation in understanding, remembering, or applying

information, the Court notes that the ALJ incorrectly stated that

Plaintiff “graduated from high school in regular education

classes” in making his determination. (Id.) As noted in

Plaintiff’s Disability Report, Plaintiff attended special

education classes in high school. (Id. at 201.) The Court does

not find this error to impact the ALJ’s analysis, however.

Consultative examiner Dr. Herman, upon whose opinion the ALJ

relied, assessed Plaintiff as having “average” cognitive

functioning following his examination. (Id. at 578.)

The court is inclined to view the ALJ’s error as a minor

factual inaccuracy. The ALJ’s determination of Plaintiff’s

capacity for understanding, remembering or applying information

did not turn on his education, citing to it only a single time.3

(Id. at 14). Furthermore, Plaintiff’s special education classes

are not mentioned elsewhere in the record beyond his Disability

Statement. (See generally Tr.) Instead, the ALJ relied more

heavily on Dr. Herman’s and Dr. Koocher’s testimony as to

Plaintiff’s limitation in this area. (Id. at 14.) In addition,

courts in this Circuit have previously concluded that attending

special education classes is not necessarily incompatible with a

moderate limitation in understanding, remembering, or applying

information. See, e.g., Reece v. Kijakazi, No. 22-CV-674 (BCM),

2023 WL 6211788, at *5 (S.D.N.Y. Sept. 25, 2023) (ALJ assessed,

and plaintiff did not challenge, a mild limitation to

understanding, remembering, or applying information when Plaintiff

completed school through the ninth grade in special education

3 The Court also notes that Plaintiff attended some college after graduating

from high school. (Tr. at 258, 576, 736).

classes); Candy A. O. v. Kijakazi, No. 20-CV-0766, 2022 WL 226804,

at *11 (N.D.N.Y. Jan. 26, 2022) (ALJ did not err in finding that

the plaintiff was only moderately limited in understanding,

remembering, or applying information despite Plaintiff’s reported

history of special education due to a learning disability while in

school); Edwards v. Comm'r of Soc. Sec. Admin., No. 22-CV-4345

(RWL), 2023 WL 6173526, at *5, 18 (S.D.N.Y. Sept. 22, 2023) (ALJ

assessed a mild limitation at Step Three as to understanding,

remembering, or applying information when Plaintiff completed

school through tenth grade and received special education

classes). Thus, this court finds the ALJ’s error in stating that

the Plaintiff attended regular education high school classes to be

harmless.

Plaintiff also asserts that the ALJ’s finding of “average

intelligence” is unsupported by the record, citing to an excerpt

from Exhibit 12F noting that Plaintiff has “borderline

intellectual functioning.” (Pl. Mem. at 5 (citing Tr. at 489).)

Though Plaintiff claims this is the “only reference to intellectual

functioning in the file,” (Pl. Mem. at 5), he is incorrect, as the

ALJ relies on Dr. Herman’s opinion that Plaintiff’s cognitive

functioning was “[a]verage” and his “[g]eneral fund of information

appropriate to experience.” (Tr. at 578.) The Court also notes

that the report of “borderline intellectual functioning” does not

appear in medical opinion evidence, but instead as part of a list

of “challenges” in Plaintiff’s “Coordinated Care Plan” prepared by

a case manager who was assisting Plaintiff in getting access to

healthcare resources and benefits programs. (Id. at 489-496.) As

such, the Court does not find that the ALJ erred in relying on Dr.

Herman’s opinion regarding Plaintiff’s cognitive functioning.

Ultimately, “[a]n ALJ does not have to state on the record

every reason justifying a decision,” nor is an ALJ “required to

discuss every piece of evidence submitted.” Brault v. Soc. Sec.

Admin., Com'r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotation

marks and citations omitted). Here, the court finds that the ALJ

sufficiently considered the evidence concerning Plaintiff’s

cognitive functioning, and that his determination of no more than

a moderate limitation in understanding, remembering, or applying

information was supported by substantial evidence.

b. The Remaining Paragraph B Criteria

In addition to disputing the evidence on which the ALJ’s

determination of a “moderate” limitation to understanding,

remembering, or applying information relied, Plaintiff also

presents “other medical evidence in the file” which supports a

“marked” or “extreme” limitation in that area of mental functioning

and others. (Pl. Mem. at 5-7.) In making this argument, Plaintiff

impermissibly seeks for the Court to reweigh the evidence in favor

of the Plaintiff. A plaintiff may not simply “present the facts

in a different light, seeking to have this Court weigh them

differently than the ALJ.” Rivera v. Kijakazi, No. 22-CV-6976

(RWL), 2023 WL 6035665, at *7 (S.D.N.Y. Sept. 15, 2023). “Where

the Commissioner's decision rests on adequate findings supported

by evidence having rational probative force, [the Court] will not

substitute [its] judgment for that of the Commissioner.” Veino v.

Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).

The ALJ, presented with medical opinion evidence from Dr.

Herman assessing no more than an “intermittent moderate”

limitation in any area of mental functioning, and hearing testimony

from Dr. Koocher confirming the same, chose to weigh Dr. Herman’s

opinion evidence more heavily than opinion evidence to the

contrary. (Tr. at 14.) Combined with improvements in Plaintiff’s

condition from 2020 forward and supporting medical record

evidence, the ALJ properly concluded that a “moderate” limitation

was appropriate for each area of mental functioning. (Id.) To

the extent Plaintiff cites evidence that would support a conclusion

to the contrary, the presence of conflicting evidence is not

uncommon, and it is up to the ALJ to resolve those conflicts. See

Veino, 312 F.3d at 588 (ALJ is free to resolve conflicts of

evidence and to credit only portions of a medical opinion which

were supported by relevant evidence). The ALJ properly carried

out his duty to resolve conflicting evidence, and even if he could

have done so differently, “the ALJ's failure to interpret the

evidence in the way Plaintiff prefers does not warrant remand.”

Charles W. v. Kijakazi, No. 20-CV-01298, 2022 WL 2207182, at *6

(W.D.N.Y. June 21, 2022). Thus, the Court is satisfied that the

ALJ adequately supported his Step Three conclusions.

IV. The ALJ’s Residual Functional Capacity Findings and

Evaluation of Related Opinion Evidence

Plaintiff argues that the ALJ’s RFC determination was

“fraught with issues” and “not supported by substantial evidence.”

(Pl. Mem. at 8.) Plaintiff contends that the ALJ’s RFC

determination conflicted with Dr. Pollack’s medical opinion (id.

at 9), that the ALJ’s mental RFC determination was “not in line

with the medical evidence as a whole,” (id. at 10-12), and that

the record shows “Plaintiff would need to be off task over 10% of

the day” and “absent at least twice per month,” (id. at 13). In

making these contentions, Plaintiff points to what he claims is

conflicting evidence in the record and takes issue with the weight

afforded to medical opinion evidence by the ALJ. (Id. at 16-19.)

a. Legal Standard Governing Evaluation of Medical Opinion

Evidence

The SSA adopted new regulations effective March 27, 2017,

revising the standard for evaluating medical opinion evidence.

See 20 C.F.R. § 416.920c. Because Plaintiff filed his claim on

February 26, 2020, the new regulations apply.

Under the new regulations, the Commissioner no longer

“defer[s]” or gives “controlling weight” to a claimant’s treating

medical sources. Id. § 416.920c(a). Instead, when evaluating the

persuasiveness of medical opinions, the Commissioner considers the

following five factors: (1) supportability; (2) consistency; (3)

the relationship of the medical source with the claimant (taking

into account the length of the treatment relationship, the

frequency of examinations, the purpose of the treatment

relationship, the extent of the treatment relationship, and

whether the relationship is an examining relationship); (4) the

medical source’s specialization; and (5) other factors, including,

but not limited to, “evidence showing [the] medical source has

familiarity with the other evidence in the claim or an

understanding of [the SSA] disability program’s policies and

evidentiary requirements.” Id. § 416.920c(c). In each case, the

ALJ must explain how he or she considered the factors of

supportability and consistency, the two most important factors for

determining persuasiveness. Id. §§ 416.920c(a), (b)(2).

b. Physical Limitations and Related Opinion Evidence

Plaintiff contends that the restrictions included in Dr.

Pollack’s medical opinion “would preclude Plaintiff’s ability to

perform medium work.” (Pl. Mem. at 9.) Plaintiff also argues

that the ALJ improperly assessed the medical opinion of non-

examining state agency physician Dr. Kirsch as being more

persuasive than Dr. Pollack’s opinion. (Pl. Mem. at 17-18.)

As an initial matter, this Court is not convinced that

Plaintiff is correct that Dr. Pollack’s opinion would preclude

medium work. Dr. Pollack assessed that Plaintiff had a “moderate

restriction in squatting, bending, lifting, and carrying,” a

“[m]ild restriction in walking, standing, sitting, and climbing,”

and should “avoid activities which require heavy exertion.” (Tr.

at 572.) Several courts in this circuit have concluded that an

RFC for medium work is consistent with “mild to moderate”

limitations in physical capabilities. Cain S. v. Comm'r of Soc.

Sec., No. 20-CV-1513, 2022 WL 17252414, at *4 (W.D.N.Y. Nov. 28,

2022) (collecting cases). Thus, it is not self-evident that Dr.

Pollack’s opinion would conflict with the ALJ’s RFC determination.

In any event, the ALJ only found Dr. Pollack’s opinion to be

“somewhat persuasive,” instead relying more heavily on Dr. Kirsch,

a reviewing state agency physician, who opined that Plaintiff could

lift and carry up to 50 pounds occasionally and 20 pounds

frequently, and sit, stand, and walk for up to 6 hours in an 8-

hour workday. (Tr. at 17-19.) The ALJ explained that he did not

consider Dr. Pollack’s opinion more persuasive even though it was

based on a physical examination, because “the findings and

limitations appear to be largely based upon the claimant’s self

reporting and the record is devoid of any other evidence to support

his allegations of debilitating lower back pain.” (Id. at 17.)

This reflects a proper analysis of opinion evidence, as the ALJ

noted that key findings were not supported by a physical

examination and conflicted with other evidence in the record.

Plaintiff’s argument that the ALJ erred in assigning more

weight to Dr. Kirsch’s opinion is unpersuasive. Contrary to

Plaintiff’s assertions, the ALJ applied a consistent framework

when analyzing the opinion evidence. The ALJ specifically found

Dr. Kirsch’s opinion more persuasive because of its consistency

with both Dr. Pollack’s physical examination findings as well as

the record generally. (Tr. at 19.) Plaintiff takes issue with

the ALJ “credit[ing] a doctor who reviewed Dr. Pollack’s report

and concluded differently rather than Dr. Pollack herself,” (Pl.

Mem. at 18), but “[a]n ALJ is entitled to rely on the opinions of

both examining and non-examining State agency medical consultants,

because those consultants are deemed to be qualified experts in

the field of social security disability,” Angela H.-M. v. Comm'r

of Soc. Sec., 631 F. Supp. 3d 1, 9 (W.D.N.Y. 2022) (citation

omitted, emphasis in original). “Although an examining source is

generally afforded more weight than a non-examining source, an ALJ

is allowed to afford a non-examining source more weight than an

examining one.” Id. (internal quotation marks and citation

omitted).

Plaintiff argues that “Dr. Kirsch was mainly reviewing the

report from Dr. Pollack,” but Dr. Kirsch also had the benefit of

reviewing Plaintiff’s medical record as submitted for the

disability application. (Pl. Mem. at 18.) As noted by the ALJ,

the record was “devoid of any other evidence to support

[Plaintiff’s] allegations of debilitating lower back pain.” (Tr.

at 17.) Dr. Kirsch would have been able to draw conclusions from

this lack of evidence, combined with the physical examination

findings of Dr. Pollack, and it was entirely proper for the ALJ to

conclude that Dr. Kirsch’s opinion was persuasive because it was

supported and consistent.

Plaintiff also argues that the ALJ erred in finding Dr.

Ahmed’s opinion less persuasive. (Pl. Mem. at 18.) Dr. Ahmed,

conducting a review of the record evidence, concluded that

Plaintiff did not have a physical impairment that would cause more

than a de minimis effect on his ability to engage in work-related

activity. (Tr. at 18.) The ALJ found this opinion less persuasive

as it was “not consistent with that of [Dr. Pollack].” (Id. at

19.) As with the assessment of Dr. Kirsch’s opinion, the ALJ did

not err in assigning Dr. Ahmed’s opinion less weight. Dr. Pollack

found at least some physical limitations in her physical exam,

including reduced squat depth and lumbar spine range of motion, so

it was reasonable for the ALJ to conclude that Dr. Ahmed’s opinion

was inconsistent with Dr. Pollack’s findings from the physical

examination of Plaintiff. (Id. at 571-72.) In conclusion,

Plaintiff has failed to show that the ALJ erred in his evaluation

of the opinion evidence regarding Plaintiff’s physical

limitations.

c. Mental Limitations and Related Opinion Evidence

Regarding Plaintiff’s mental RFC, the ALJ found that

Plaintiff could perform simple, routine tasks; sustain

concentration for simple, routine tasks; maintain a schedule; make

simple work-related decisions; occasionally interact with

supervisors, coworkers, and the public; and occasionally adapt to

changes in the work setting. (Id. at 15.) Plaintiff challenges

this RFC by arguing that (1) the ALJ had no basis for finding that

Plaintiff could maintain a schedule, (2) the ALJ mistakenly found

that Plaintiff could make simple work-related decisions, (3) the

ALJ erred in finding that Plaintiff could occasionally interact

with others, (4) the ALJ was incorrect in finding Plaintiff could

sustain concentration for simple routine tasks, (5) the ALJ’s

findings that Plaintiff could occasionally adapt to changes in

work settings is baseless, (6) the ALJ should have added a

restriction that reflected Plaintiff’s ability to handle stress,

(7) the ALJ erred by failing to inquire as to whether Plaintiff’s

bad hygiene would have caused problems with employment, and (8)

that the ALJ erred in his “off-task” findings when he concluded

that Plaintiff would not require time off task of more than 10% in

a workday. (Pl. Mem. at 10-14.) As explained supra, “[g]enuine

conflicts in the medical evidence are for the Commissioner to

resolve.” Veino, 312 F.3d at 588. The Court will instead examine

whether the ALJ applied the “correct legal standards” in weighing

opinion evidence, and whether “there is substantial evidence,

considering the record as a whole, to support the Commissioner's

decision.” Brault v. Soc. Sec. Admin., Com'r, 683 F.3d 443, 447

(2d Cir. 2012) (citation omitted).

First, the Court finds that the ALJ properly weighed and

relied upon the medical opinions of Drs. Herman, Weitzen, Kamin,

and Koocher. The ALJ considered Dr. Herman’s opinion persuasive

because it was “based upon an in-person evaluation which notes

limitations consistent with the doctor’s exam and also consistent

with treatment notes reporting claimant to be psychiatrically

stable with healthy mental status exams and improvement following

a history of hospitalizations in 2019.” (Tr. at 17.) In

conducting this evaluation, the ALJ properly considered the

supportability and consistency of Dr. Herman’s opinion. Following

an examination of Plaintiff, Dr. Herman opined:

[T]here appears to be no evidence of limitation with

respect to this claimant’s ability to understand,

remember, or apply simple directions and instructions

and use reason and judgment to make work-related

decisions. Mild limitation to sustain concentration and

perform a task at a consistent pace and sustain an

ordinary routine and regular attendance at work. No

evidence of limitation maintain[ing] well-being,

maintain[ing] personal hygiene, and appropriate attire.

Intermittent moderate limitation to interact adequately

with supervisors, coworkers, and the public and regulate

emotions. No evidence of limitation to be aware of

normal hazards and take appropriate precautions.

(Id. at 578.) The ALJ also found the opinion of reviewing state

agency physician Dr. Weitzen to be “generally persuasive” as it

was “based upon [a] thorough review[] of the medical evidence” by

a doctor “familiar with the Agency’s standard.” (Id. at 18.) He

also found the opinion consistent “with the overall evidence of

record” noting Plaintiff’s improvement in symptoms “beginning in

2020 and continuing into 2021.” (Id.) Dr. Weitzen opined that

Plaintiff would have several “moderate” or “mild” limitations to

his mental functioning. (Id. at 67-70.) Dr. Kamin, a second state

agency physician, concurred with Dr. Weitzen’s opinion. (Id. at

18.)

Regarding the testimony of Dr. Koocher, the impartial medical

expert who testified at the hearing, the ALJ found Dr. Koocher’s

opinion “more persuasive” because of its support in the medical

record and disability file as a whole, and because it was

consistent with other medical evidence in the record. (Id. at

19.) Dr. Koocher assessed no more than a “mild to moderate”

limitation in any area of mental functioning based on his review

of all available evidence. (Id.) In weighing each of the four

opinions he relied upon, the ALJ explained his findings regarding

the supportability and consistency for each of the opinions,

pointing to specific evidence supporting those findings. Thus,

the ALJ met his burden under the revised regulations. See 20

C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).

Second, the Court finds that the ALJ properly discounted the

joint opinion of Ms. Marmorale, Plaintiff’s treating nurse

practitioner, and Ms. Kuhnel, Plaintiff’s social worker. The joint

opinion noted “marked” limitations via check-boxes in several

areas of mental functioning, and indicated that Plaintiff would

likely be absent more than 4 days per month from work due to his

impairments. (Tr. at 590-92.) Ms. Marmorale and Ms. Kuhnel’s

opinion did not include any explanation for their findings or

citation to supporting evidence. (Id.) The ALJ offered a

detailed rationale for finding their joint opinion to be less

persuasive:

This opinion is considered less persuasive since it is

inconsistent with treatment notes reporting claimant to

be psychiatrically stable with generally healthy mental

status exams beginning in 2020. The opinion is also

contradicted by the findings in Exhibits 18F, 24F, 25F,

26F, 27F and 28F and is inconsistent with Ms. Marmorale’s

own treatment notes. For example, on January 26, 2021,

she noted that claimant’s medications were helpful, his

mood was euthymic and his affect reactive. She also

noted claimant’s thought process to be linear and

focused and Ms. Marmorale described claimant as

“symptomatically stable” (Exhibit 23F). Moreover, Ms.

Kuhnel stated on April 14, 2021: “[The claimant] is doing

well with his mental health at this time.” Her treatment

notes illustrate generally intact psychological

functioning and claimant’s mental status reports are

usually within normal limits. It is noted that he works

with her on utilizing coping skills and is working

through his depressive and anxious symptoms. On January

21, 2021, Ms. Kuhnel’s treatment notes indicate that

claimant was dating a new girl and that he had other

friends. Claimant was also noted to be consistently

free of suicidal and homicidal ideation between January

and April of 2021 (Exhibit 28F). Although we generally

give great deference to the treating opinion, in this

particular case that significant limitations noted by

Ms. Marmorale and Ms. Kuhnel are not objectively

supported and at times are even contradicted by their

treatment notes and for those reasons the opinion is

found to be less persuasive.

(Id. at 18.) The ALJ properly found the opinion of Plaintiff’s

treating nurse practitioner and social worker regarding

Plaintiff’s “marked” limitations to be unpersuasive because it was

inconsistent with other record evidence, including their own

treatment notes at times. Furthermore, the Court notes that the

opinion, which was provided on a form, did not provide an adequate

explanation for the “marked” limitations assessed.

It is true that a treating source’s opinion is “all the more

important in cases involving mental health, which are not

susceptible to clear records such as x-rays or MRIs.” Flynn v.

Comm'r of Soc. Sec. Admin., 729 F. App'x 119, 122 (2d Cir. 2018)

(summary order). Notwithstanding the fact that an ALJ should

consider the treating relationship (as the third factor under the

new regulations), an ALJ may still properly choose to accord more

weight to the opinion of a consulting physician than a treating

source. See Rosier v. Colvin, 586 F. App'x 756, 758 (2d Cir. 2014)

(summary order) (consultative examiner's opinion constitutes

substantial evidence supporting ALJ's decision to accord little

weight to treating source). In the instant case, the ALJ properly

considered the treating relationship and treatment notes, but

found the opinion of Ms. Marmorale and Ms. Kuhnel to be without

objective support and inconsistent with the other evidence of

record. The Court finds no error in the ALJ’s analysis.

d. Substantial Evidence Supported the RFC

Because the Court finds that the ALJ properly weighed the

opinion evidence, the proper next step is to consider whether the

ALJ’s RFC is supported by significant evidence, rather than

reweighing the evidence de novo. Brault, 683 F.3d at 447. An ALJ

is “entitled to weigh all of the evidence available” in making an

RFC finding, which need “not perfectly correspond with any of the

opinions of medical sources cited” so long as it is “consistent

with the record as a whole.” Matta v. Astrue, 508 F. App'x 53, 56

(2d Cir. 2013) (summary order).

Regarding physical limitations, the ALJ’s RFC assessment,

which limited Plaintiff to medium work with some additional

limitations, is consistent with Dr. Kirsch’s medical opinion,

which the ALJ found persuasive. (Tr. at 14-15, 84-85.) The

consultative examiner, Dr. Pollack, assessed “moderate” or “mild”

limitations in several areas of physical functioning, which, as

the Court noted supra, would not necessarily conflict with an RFC

for medium work. See Cain S. v. Comm'r of Soc. Sec., No. 20-CV-

1513, 2022 WL 17252414, at *4 (W.D.N.Y. Nov. 28, 2022) (collecting

cases). The ALJ’s RFC assessment was more restrictive than the

opinion of Dr. Ahmed, who found no more than a de minimis

limitation in any area of physical functioning, but the ALJ

properly discounted Dr. Ahmed’s opinion, as described supra. (Tr.

at 18-19.) Thus, the Court finds that the physical limitations in

the RFC were supported by substantial evidence.

Turning next to non-exertional restrictions in the RFC, the

ALJ found that Plaintiff was “only capable of performing simple

routine tasks, can sustain concentration for simple routine tasks,

can maintain a schedule, can make simple work related decision,

can occasionally interact with supervisors, coworkers and the

public and can occasionally adapt to changes in the work setting.”

(Id. at 15.) The Court finds that the ALJ’s RFC properly accounted

for limitations noted in the medical opinion evidence and was

supported by substantial evidence.

Drs. Weitzen and Kamin, upon whose opinions the ALJ relied,

opined that Plaintiff could “sustain unskilled work in a setting

with low personal contact.” (Id. at 70, 89.) Both doctors also

assessed a “moderate” limitation in Plaintiff’s ability to:

understand and remember detailed instructions; carry out detailed

instructions; maintain attention and concentration for extended

periods; perform activities within a schedule, maintain regular

attendance, and be punctual within customary tolerances; work in

coordination with or in proximity to others without being

distracted by them; make simple work-related decisions; complete

a normal workday and workweek without interruptions from

psychologically based symptoms and to perform at a consistent pace

without an unreasonable number and length of rest periods; interact

appropriately with the general public; accept instructions and

respond appropriately to criticism from supervisors; get along

with coworkers or peers without distracting them or exhibiting

behavioral extremes; respond appropriately to changes in the work

setting; and set realistic goals or make plans independently of

others. (Id. at 67-68, 86-87.) The doctors assess no significant

limitation in Plaintiff’s ability to: remember locations and work-

like procedures; understand and remember very short and simple

instructions; carry out very short and simple instructions;

sustain an ordinary routine without special supervision; ask

simple questions or request assistance; maintain socially

appropriate behavior and to adhere to basic standards of neatness

and cleanliness; be aware of normal hazards and take appropriate

precautions; and travel in unfamiliar places or use public

transportation. (Id.)

The Court finds the ALJ’s RFC determination to be consistent

with the medical opinions of Drs. Weitzen and Kamin. “[T]here is

significant case law indicating that the ALJ's limitation of a

plaintiff to ‘simple, routine tasks’ and ‘working primarily alone,

with only occasional supervision’ accounts for his or her

[moderate] limitations for performing activities within a schedule

and maintaining regular attendance. Koza v. Comm'r of Soc. Sec.,

No. 22-CV-889 (GWG), 2023 WL 6054513, at *5 (S.D.N.Y. Sept. 18,

2023) (collecting cases). Likewise, “courts in this Circuit have

found that a plaintiff's moderate limitation in maintaining

regular attendance and sustaining an ordinary schedule is not

inconsistent with an RFC finding limiting Plaintiff to “simple,

routine tasks.” Phillip D. v. Comm'r of Soc. Sec., No. 20-CV-

6746, 2022 WL 2872646, at *4 (W.D.N.Y. July 21, 2022) (collecting

cases). Furthermore, “[l]imitations in work complexity and in

interpersonal interaction are often imposed to address a

claimant's limitations in adaptive categories of functioning.”

Platt v. Comm'r of Soc. Sec., 588 F. Supp. 3d 412, 422 (S.D.N.Y.

2022) (collecting cases). The ALJ, confronted with “moderate”

limitations in several areas of mental functioning, crafted an RFC

that limited Plaintiff to conducting “simple routine tasks,”

making “simple work related decision[s],” only “occasionally

interacting with supervisors, coworkers, and the public,” and

required only “occasional[] adapt[ation] to changes in the work

setting.” (Tr. at 15.) The Court finds this RFC to be consistent

with the medical opinion evidence on which the ALJ relied, and

thus to be supported by substantial evidence.

Plaintiff argues that the ALJ’s conclusions regarding the RFC

“are devoid of any reference to” the moderate limitations noted by

Drs. Weitzen and Kamin. (Pl. Mem. at 19.) However, there is no

requirement that having a “moderate” limitation in an area of

functioning will “result[] in some exertional or non-exertional

limitation [being] incorporated into the RFC itself.” Koza, 2023

WL 6054513, at *5. Likewise, there is no requirement that an ALJ

explain exactly which moderate limitation corresponds to which

non-exertional limit in the RFC. Rather, the ALJ is required to

“account[] for” such limitations in the resulting RFC and ensure

it is “consistent with” them. Id. As discussed above, the Court

is satisfied that the ALJ properly accounted for the limitations

noted in the record in crafting the RFC.

Finally, Plaintiff argues that the ALJ’s failure to include

time off-task in the RFC conflicted with the moderate limitations

noted above, including performing activities within a schedule,

maintaining regular attendance, and being punctual. (Pl. Mem. at

19.) However, Plaintiff cites no authority for this proposition,

and there is substantial case law to the contrary. See, e.g.,

Tamara M. v. Saul, No. 19-CV-1138, 2021 WL 1198359, at *11

(N.D.N.Y. Mar. 30, 2021) (finding that ALJ did not err in failing

to incorporate time off-task/attendance limitations in RFC when

the medical opinions included moderate limitations in “staying on-

task and/or maintaining appropriate levels of attendance”)

(collecting cases). As such, the Court does not find any error in

the ALJ’s decision not to specifically include time off-task or

attendance limitations in his RFC, which already limited Plaintiff

to “simple routine tasks,” “simple work related decision[s],” and

only “occasional[] adapt[ation] to changes in the work setting.”

(Tr. at 15.)

In conclusion, the Court finds that the ALJ properly weighed

the opinion evidence, and that his RFC was supported by substantial

evidence. As such, the ALJ did not err in determining Plaintiff’s

RFC.

V. The VE’s Testimony was Consistent with the DOT

Plaintiff also argues that the Vocation Expert’s (VE)

testimony was inconsistent with the Dictionary of Occupational

Terms, referencing statistics found in an “online resource

promulgated by the Department of Labor” – O*NET. (Pl. Mem at 15-

16). According to Plaintiff, O*NET reports that a significant

amount of hand packagers, price markers, and housekeeping cleaners

report that their work required daily or “constant” interaction

with others. (Id.) Plaintiff urges the Court to apply the O*NET

information in lieu of the DOT because the “DOT for [hand packager]

was last updated in 1988 and also does not discuss whether [the]

job requires any interaction with others.” (Id. at 15.)

Plaintiff's argument that the Court should refer to O*NET in lieu

of the DOT is without merit.

Social Security Ruling (“SSR”) 00-4P provides in pertinent

part that:

In making disability determinations, we rely primarily

on the DOT (including its companion publication, the

[Selected Characteristics of Occupations Defined in the

Revised Dictionary of Occupations Titles (“SCO”)]), for

information about the requirements of work in the

national economy. [The SSA] use[s] these publications at

steps 4 and 5 of the sequential process. . . .

When there is an apparent unresolved conflict between VE

or [Vocational Specialist (“VS”)] evidence and the DOT,

the adjudicator must elicit a reasonable explanation for

the conflict before relying on the VE or VS evidence to

support a determination or decision about whether the

claimant is disabled. At the hearing level, as part of

the adjudicator's duty to fully develop the record, the

adjudicator will inquire, on the record, as to whether

or not there is such consistency.

Neither the DOT nor the VE or VS evidence automatically

“trumps” when there is a conflict. The adjudicator must

resolve the conflict by determining if the explanation

given by the VE or VS is reasonable and provides a basis

for relying on the VE or VS testimony rather than on the

DOT information.

SSR 00-4P, 2000 WL 1898704, at *2. “The VE's reliance on the DOT,

despite not having been updated in more than 25 years, remains an

accepted basis for vocational opinion according to the

Commissioner's rules.” Strong v. Berryhill, No. 17-CV-1286, 2019

WL 2442147, at *6 (W.D.N.Y. June 12, 2019) (internal quotation

marks and citation omitted); see also Valentin v. Berryhill, No.

17-CV-944, 2018 WL 4300119, at *10 (D. Conn. Sept. 9, 2018)

(finding the ALJ did not err at step 5 by relying on job

descriptions in the DOT rather than on the O*NET); Ryan v. Astrue,

650 F. Supp. 2d 207, 218 (N.D.N.Y. 2009)(“Even if the VE's

testimony was in conflict with O'Net, there is no requirement that

the VE's testimony comply with that database. Instead, the VE's

testimony must comply with the DOT.”). Significantly, the asserted

inconsistency here arises not from the VE’s testimony and the DOT,

but from Plaintiff’s reliance on the O*NET for the amount of

interaction with the public or coworkers in each job. Thus,

Plaintiff has asserted a conflict where none otherwise existed.

Plaintiff does not cite to any caselaw holding the VE’s

reliance on the DOT’s job descriptions improper or reference any

authority calling into doubt the accuracy of job descriptions in

the DOT as compared to the O*NET beyond noting the age of the DOT

job descriptions. (Pl. Mem. at 15-16.) Finally, beyond the

alleged conflict between the VE’s testimony and the O*NET, the

Plaintiff alleges no other inaccuracies or errors in the VE’s

testimony. (See Stip. at 4 (“VE Taitz’s testimony was consistent

with the DOT, except for the limitations about absenteeism, which

was informed by his professional knowledge, experience, and

observation.”).)

“An ALJ may rely on a vocational expert's testimony regarding

a hypothetical as long as there is substantial record evidence to

support the assumptions upon which the vocational expert based his

opinion, and [the hypothetical] accurately reflect[s] the

limitations and capabilities of the claimant involved.” McIntyre

v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (internal quotation

marks and citation omitted). Here, the ALJ accurately described

the Plaintiff’s RFC, which the Court has concluded was supported

by substantial evidence, in his hypothetical. (Tr. at 48-49.)

The VE concluded that such a hypothetical individual would be able

to perform the work of hand packager, price marker, or housekeeping

cleaner. (Id. at 49-50.) The ALJ properly concluded that work

existed in the national economy which Plaintiff could perform at

Step Five.

Finally, Plaintiff contends that the training required for an

SVP 2 job4 would be prohibitive given the restriction to only

occasional interaction with supervisors, coworkers, and the public

included in the RFC. (Pl. Mem. at 16.) Plaintiff argues in the

alternative that the ALJ should have inquired as to how training

time would have been impacted by his limitations. (Id. at 17.)

Plaintiff cites no authority for the argument that such training

would require more than “occasional” contact with others, beyond

stating that it is ”obvious.” (Id. at 16-17.) The Court finds

this argument unavailing, especially in light of the caselaw to

the contrary cited by the Commissioner. See Tyler M. v. Saul, No.

19-CV-426, 2020 WL 5258344, at *13 (N.D.N.Y. Sept. 3, 2020)

(finding the plaintiff’s argument that “a thirty-day window for

job training requires close interactions with others” to be

“entirely speculative and without merit”). The VE was aware of

Plaintiff’s RFC limiting him to “occasional” contact with others

and incorporated the limitation into his response to the ALJ’s

hypothetical. (Tr. at 48-50.) As such, the Court finds no error

in the ALJ’s reliance on the VE’s testimony in concluding that

“there are jobs that exist in significant numbers in the national

4 SVP 2 jobs require “little or no judgment to do simple duties” and “can be

learned on the job in a short period of time,” usually in 30 days. See 20

C.F.R. § 416.968(a); SSR 00-4P, 2000 WL 1898704, at *3.

economy that [Plaintiff] can perform.” (Id. at 20.) The

Commissioner’s decision is supported by substantial evidence in

the record.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for judgment on

the pleadings is DENIED, and Defendant’s motion for judgment on

the pleadings is GRANTED. The Clerk of Court is respectfully

directed to enter judgment in favor of the Commissioner and close

this case.

SO ORDERED.

DATED: March 28, 2024 - “f2 Yh —

Brooklyn, New York □ i) □□□ wt ler

HON. KIYO A. MATSUMOTO |

United States District Judge

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