McDowell v. Saul

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ERICA M.,

Plaintiff, No. 5:18-CV-456

(CFH)

v.

ANDREW SAUL,1

Defendant.

APPEARANCES: OF COUNSEL:

Olinsky Law Group HOWARD D. OLINKSY, ESQ.

300 S. State Street

Suite 420

Syracuse, New York 13202

Attorney for Plaintiff

Social Security Administration SIXTINA FERNANDEZ, ESQ.

Office of Regional General Counsel Special Assistant U.S. Attorney

Region II

26 Federal Plaza - Room 3904

New York, New York 10278

Attorney for the Commissioner

CHRISTIAN F. HUMMEL

U.S. MAGISTRATE JUDGE

MEMORANDUM-DECISION AND ORDER

Plaintiff Erica M. brings this action pursuant to 42 U.S.C. § 405(g) seeking review

of a decision by the Commissioner of Social Security (“the Commissioner”) denying her

application for disability insurance benefits and supplemental security income (“SSI”)

1 Andrew Saul was appointed Commissioner of Social Security, and has been substituted as the

defendant in this action.

benefits. Dkt. No. 1 (“Compl.”).? Plaintiff moves for a finding of disability or remand for

a further hearing, and the Commissioner cross moves for a judgment on the pleadings.

Dkt. Nos. 11, 12. For the following reasons, the determination of the Commissioner is

affirmed.

Il. Background

Plaintiff was born in 1981, and completed eleventh grade. T. 172, 641.° She did

not receive her GED. Id. at 641. She resides with another individual, and her aunt acts

as her caretaker. Id. at 640-41. Plaintiff previously worked as a cashier at a grocery

store and as a home health aide, as well as at Macy’s and KFC. Id. at 642-44.

On October 22, 2009, plaintiff protectively filed a Title || application for disability

insurance benefits. T. 152-54. On that same day, plaintiff also protectively filed a Title

XVI application for SSI benefits. Id. at 159-62. Both applications alleged an onset date

of July 7, 2006. Id. at 152-54, 159-62. The applications were initially denied on

February 3, 2010. Id. at 111. Plaintiff requested a hearing, and a hearing was held on

November 23, 2010 before Administrative Law Judge (“ALJ”) Thomas P. Tielens. Id. at

64-97. On January 21, 2011, ALJ Tielens issued an unfavorable decision. Id. at 26-37.

On June 8, 2011, the Appeals Council granted plaintiff's request for review. Id. at 102-

* Parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. §

36(c), FED. R. Civ. P. 73, N.D.N.Y. Local Rule 72.2(b), and General Order 18. Dkt. No. 5.

3 «T ” followed by a number refers to the pages of the administrative transcript filed by the

ommissioner. Dkt. No. 8. Citations refer to the pagination in the bottom right-hand corner of the

dministrative transcript, not the pagination generated by CM/ECF.

06. On September 1, 2011, the Appeals Council issued an unfavorable decision. Id. at

1-3. On November 4, 2011, plaintiff filed a request for a hearing. Id. at 1017-18.

Because the Appeals Council had already issued an unfavorable decision, plaintiff

commenced an action in federal court. Id. at 848-75. On March 11, 2013, this Court

remanded the case for further proceedings. See id.

On June 23, 2013, plaintiff appeared before ALJ Edward Pitts for a second

hearing. T. 683-737. On September 19, 2013, ALJ Pitts issued an unfavorable

decision. Id. at 924-40. Plaintiff appealed ALJ Pitts’ decision, and the Appeals Council

remanded the case to the ALJ. Id. at 951-52. On remand, the Appeals Council

ordered the ALJ to:

• Obtain additional evidence concerning [plaintiff’s]

impairments in order to complete the administrative

record in accordance with the regulatory standards

regarding consultative examinations and existing

medical evidence . . . . The additional evidence may

including, if warranted and available, consultative

mental and physical examinations with psychological

testing and medical source statements about what

[plaintiff] can still do despite the impairments.

• If necessary, obtain evidence from a medical expert to

clarify the nature and severity of [plaintiff’]s mental

impairments . . . .

• Give consideration to [plaintiff’s] cognitive impairment at

step 2 of the sequential evaluation

• Further evaluation [plaintiff’s] mental impairments in

accordance with the special technique described in 20

CFR 404.1520a and 416.920a and appropriate

rationale for each of the functional areas . . . .

• Give further consideration to the treating and

nontreating source opinions made by Dr. Shapiro and

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Dr. Buchan pursuant to 20 CFR 404.1527 and 416.927

. . . and explain the weight given to such opinion

evidence. As appropriate, the [ALJ] may request the

treating and nontreating sources to provide additional

evidence and/or further clarification of the opinions and

medical source statements about what [plaintiff] can still

do despite the impairments . . . . The [ALJ] may enlist

the aid and cooperation of [plaintiff’s] representative in

developing evidence from [plaintiff’s] treating sources.

• Give further consideration to [plaintiff’s] maximum

residual functional capacity and provide appropriate

rationale with specific references to evidence of record

in support of the assessed limitations . . . .

• Further evaluation [plaintiff’s] subjective complaints and

provide rationale in accordance with the disability

regulations pertaining to evaluation of symptoms . . . .

• If warranted by the expanded record, obtain

supplemental evidence from a vocational expert to

clarify the effect of the assessed limitations on

[plaintiff’s] occupational base . . . . The hypothetical

questions should reflect the specific capacity/limitations

established by the record as a whole. The [ALJ] will ask

the vocational expert to identify examples of appropriate

jobs and to state the incidence of such jobs in the

national economy . . . . Further, before relying on the

vocational expert evidence the [ALJ] will identify and

resolve any conflicts between the occupational

evidence provided by the vocational expert and

information in the Dictionary of Occupational Titles and

its companion publication [. . . . ]

Id. at 955. On September 12, 2016, plaintiff attended a third hearing before ALJ Marie

Greener. Id. at 634-82. On December 19, 2016, ALJ Greener issued an unfavorable

decision. Id. at 604-18. On February 14, 2018, the Appeals Council denied plaintiff’s

request for review, making the ALJ’s decision the final determination of the

Commissioner. Id. at 563-55. Plaintiff commenced this action on April 13, 2018. See

4

Compl.

ll. Discussion

A. Standard of Review

In reviewing a final decision of the Commissioner, a district court may not

determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),

1388(c)(3); Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.

1990). Rather, the Commissioner’s determination will only be reversed if the correct

legal standards were not applied, or it was not supported by substantial evidence. See

Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d 464,

467 (2d Cir. 1982). Substantial evidence is “more than a mere scintilla,” meaning that

in the record one can find “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.

2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations

omitted)). The substantial evidence standard is “a very deferential standard of review

....[This] means once an ALJ finds facts, we can reject [them] only if a reasonable

factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm’r, 683

F.3d 443, 448 (2d Cir. 2012) (internal quotations marks omitted). Where there is

reasonable doubt as to whether the Commissioner applied the proper legal standards,

the decision should not be affirmed even though the ultimate conclusion is arguably

supported by substantial evidence. See Martone v. Apfel, 70 F. Supp. 2d 145, 148

(N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986). However, if the correct legal

standards were applied and the ALJ’s finding is supported by substantial evidence,

such finding 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) (citation omitted).

B. Determination of Disability

“Every individual who is under a disability shall be entitled to a disability . . .

benefit . . . .” 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in

any substantial gainful activity by reason of any medically determinable physical or

mental impairment . . . which has lasted or can be expected to last for a continuous

period of not less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable

impairment is an affliction that is so severe that it renders an individual unable to

continue with his or her previous work or any other employment that may be available

to him or her based on his or her age, education, and work experience. Id. §

423(d)(2)(A). Such an impairment must be supported by “medically acceptable clinical

and laboratory diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the

impairments is “based [upon] objective medical facts, diagnoses or medical opinions

inferable from the facts, subjective complaints of pain or disability, and educational

background, age, and work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB),

2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d

1033, 1037 (2d Cir. 1983)).

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The Second Circuit employs a five-step analysis, based on 20 C.F.R. §

404.1520, to determine whether an individual is entitled to disability benefits:

First, the [Commissioner] considers whether the claimant is

currently engaged in substantial gainful activity.

If he [or she] is not, the [Commissioner] next considers

whether the claimant has a “severe impairment” which

significantly limits his [or her] 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 him [or her] disabled without considering

vocational factors such as age, education, and work

experience; the [Commissioner] presumes that a claimant who

is afflicted with a “listed” impairment is unable to perform

substantial gainful activity.

Assuming the claimant does not have a listed impairment, the

fourth inquiry is whether, despite the claimant’s severe

impairment, he [or she] has the residual functional capacity to

perform his [or her] past work.

Finally, if the claimant is unable to perform his [or her] past

work, the [Commissioner] then determines whether there is

other work which the claimant could perform.

Berry, 675 F.2d at 467 (spacing added). The plaintiff bears the initial burden of proof to

establish each of the first four steps. See DeChirico v. Callahan, 134 F.3d 1177, 1179-

80 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth

step, the burden shifts to the Commissioner to prove that the plaintiff is still able to

engage in gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).

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C. ALJ Decision

Applying the five-step disability sequential evaluation, the ALJ determined that

plaintiff had not engaged in substantial gainful activity since July 7, 2006, the alleged

onset date. T. 608. The ALJ found at step two that plaintiff had the severe

impairments of lumbar spine degenerative disc disease, asthma, borderline intellectual

functioning, affective disorder, and personality disorder. Id. At step three, the ALJ

determined that 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. at 609. Before reaching step four, the ALJ concluded

that plaintiff retained the residual functional capacity (“RFC”) to perform

light work4 as defined in 20 CFR 404.1567(b) and 416.967(b)

except she needs to change position at approximately

one-hour intervals (She can sit for one hour, then would need

to stand for about five minutes. She can then resume the

former position). Similarly, [plaintiff] can stand for one hour, but

would then need to sit for about five minutes, and she does not

need to leave the workstation during the change in position. In

addition, she must avoid concentrated exposure to respiratory

irritants. [Plaintiff] is further limited to work that does not

require more than simple, short interactions with supervisors,

co-workers or the public, and although she may work in

proximity to others, the tasks do not require working in

conjunction with others and predominantly involve working with

objects rather than people. Finally, [plaintiff] is limited to routine

daily tasks and duties in the same workplace which do not

significantly change in pace or location on a daily basis.

Id. at 612. At step four, the ALJ found that plaintiff had no past relevant work. Id. at

4 Light work is defined as work that “involves lifting no more than 20 pounds at a time with

frequent lifting or carrying of objects weighing up to 10 pounds,” as well as work that “requires a good deal

of walking or standing . . . or . . . sitting most of the time with some pushing and pulling of arm or leg

controls.” 20 C.F.R. § 404.1567(b).

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616. At step five, the ALJ determined that considering plaintiff's age, education, work

experience, and RFC, there were jobs that existed in significant numbers in the national

economy that plaintiff could perform. Id. at617. Thus, the ALJ determined that

plaintiff "ha[d] not been under a disability, as defined in the Social Security Act, from

July 7, 2006, through the date of this decision.” Id. at 618.

D. Arguments

Plaintiff first argues that the RFC is not supported by substantial evidence

because the ALJ failed to properly weigh the medical opinions of plaintiff's treating

providers. See Dkt. No. 11 at 16-23. Plaintiff also argues that the ALJ failed to account

for all of the Appeals Council’s orders on remand. Id. at 23-25. Conversely, the

Commissioner first argues that the ALJ properly evaluated the opinion evidence in

determining the RFC. See Dkt. No. 12 at 6-17. The Commissioner also argues that

the ALJ followed the Appeals Council’s orders on remand. Id. at 17-19.

E. Relevant Medical Evidence

1. Kalyani Ganesh, M.D.

On January 18, 2010, plaintiff met with Dr. Ganesh for an internal medicine

examination. Plaintiff reported lower back and middle back pain since 2002. T. 294.

She indicated that the pain was both sharp and aching, and persisted all the time. Id.

Plaintiff described the pain as radiating down her right leg to her foot. Id. Plaintiff

indicated that she was able to cook, clean, and can do laundry two days a week. ld. at

295. Plaintiff also reported that she showered and dressed two days a week. Id.

Dr. Ganesh observed that plaintiff appeared to be in no acute distress. T. 295.

Although her gait was normal, she could not walk on her heels or toes. Id. Plaintiff did

not use an assistive device, and did not need help changing for the examination or

getting on and off the examination table. Id. Plaintiff was able to rise from her chair

without difficulty. Id. Dr. Ganesh opined that plaintiff had no gross physical limitations

sitting, standing, or walking. Id. at 297. Dr. Ganesh further opined that plaintiff had

mild limitations lifting, carrying, pushing, and pulling. Id.

Plaintiff again met with Dr. Ganesh on November 19, 2015 for an orthopedic

examination. T. 1738. Plaintiff reported that had been diagnosed with a herniated disc,

and had been receiving nerve blocks for two years. Id. Plaintiff indicated that she

experienced a constant throbbing pain in her lower back every day. Id. She stated that

it “hurt[ ] to do prolonged standing and bending.” Id. Dr. Ganesh observed that plaintiff

appeared to be in no acute distress. Id. at 1739. Although plaintiff's gait was normal,

she still could not walk on her heels or toes without difficulty. Id. Plaintiff could not

squat, but her station was normal. Id. She did not use assistive devices, and did not

need help changing for the examination or getting on and off the examination table. Id.

Plaintiff was able to rise from her chair without difficulty. Id.

Dr. Ganesh observed that plaintiff's hand and finger dexterity was intact, and her

grip strength was 5/5 bilaterally. T. 1739. Plaintiff had full flexion, extension, lateral

flexion, and rotary movements bilaterally. Id. She had no cervical or paracervical pain

or spasm, and no trigger points. Id. Dr. Ganesh opined that plaintiff had no limitations

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sitting, standing, and walking. Id. at 1740. Dr. Ganesh further opined that plaintiff had

mild to moderate limitations lifting, carrying, pushing, and pulling. Id. Dr. Ganesh

recommended that plaintiff avoid known respiratory irritants. Id.

2. Debra A. Buchan, M.D.

On December 29, 2009, Dr. Buchan completed a medical report concerning

plaintiff's estimated functional limitations. T. 1464. She opined that plaintiff was

moderately limited® in her ability to walk; stand; sit; push, pull or bend; lift or carry; and

climb stairs. Id. Dr. Buchan further opined that plaintiff had no evidence of limitations

in her ability to see, hear, or speak; use her hands; or use public transportation. Id.

On February 2, 2013, Dr. Buchan completed a second medical report, wherein

she stated that plaintiff was very limited® in her ability to walk; stand; sit; push, pull or

bend; lift or carry; and climb stairs. T. 1790. Plaintiff had no limitations seeing, hearing,

or speaking; using her hands; or using public transportation. Id.

3. Desiree L. Woods, RPAC

On February 13, 2013, PA Woods competed a physician’s medical report. PA

Woods indicated that plaintiff had been client of the practice since October 2012. T.

1602. She indicated that plaintiff suffered from low back pain and pain radiating into

both of her legs. Id. The pain was worse on plaintiff's right leg. Id. PA Woods opined

> “Moderately limited” is defined as the ability to perform from 2 to 4 hours per day. T. 1464.

6 “Very limited” is defined as the ability to perform 1to 2 hours per day. T. 1790.

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that plaintiff was very limited in her ability to walk; stand; push, pull or bend; lift or carry;

and climb stairs. Id. at 1603. PA Woods further opined that plaintiff was moderately

limited in her ability to sit and use public transportation. Id. Plaintiff had no evidence of

limitations in her ability to see, hear, or speak and use her hands. Id. PA Woods

indicated that plaintiff could not lift more than five to ten pounds, and needed to change

positions frequently. Id.

4. Jeanne A. Shapiro, Ph.D

On January 18, 2010, plaintiff met with Dr. Shapiro for a consultative psychiatric

examination. T. 289. Plaintiff reported difficulties falling asleep and noted that she

usually wakes up six times each night. Id. at 290. She also reported a decreased

appetite that lead to a twenty-pounds weight loss, as well as fatigue and the temptation

to cut herself. Id. Plaintiff stated that she was unmotivated and lethargic, and did not

want anyone to talk to her. Id. She often isolated herself in her room. Id. Although

she was not suicidal at the time, she indicated that she had been in the past. Id.

Plaintiff complained of memory and concentration problems, and stated that she sees

ghosts daily. Id.

Dr. Shapiro observed that plaintiff's demeanor and responsiveness to questions

was cooperative. T. 291. Plaintiff's manner of relating, social skills, and overall

presentation was adequate. Id. Plaintiff was appropriately dressed, and her personal

hygiene and grooming were good. Id. Her eye contact was poor. Id. Plaintiff's speech

intelligibility was fluent, and her quality of voice was clear. Id. Plaintiff's thought

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processes were coherent and goal directed with no evidence of delusions,

hallucinations, or disordered thinking. Id. Plaintiff's mood was depressed, and Dr.

Shapiro noted that plaintiff appeared sad. Id. Dr. Shapiro observed that plaintiff's

affect was constricted, and was somewhat reduced in intensity compared to her

thoughts and speech. Id. Plaintiff's sensorium was clear, and she was oriented x3. Id.

Plaintiff's attention and concentration were intact, and she was able to recall three

objects immediately and after two minutes, as well as restate five digits forward and

three digits backward. Id. Her intellectual functioning was estimated to be in the

deficient range, and her general fund of information appeared to be somewhat limited.

Id. Plaintiff's insight and judgment were fair. Id.

As to her mode of living and current functioning, plaintiff indicated that she was

able to dress, bathe, and groom herself. T. 291 Plaintiff reported that if she was not in

too much pain she could cook and prepare food, clean, do laundry, and shop. ld. at

291-92. She indicated that she could not manage her money or drive, but could take

public transportation “some of the time by herself and other times with her friend.” Id. at

292. Plaintiff stated that she got along well with friends and family, and generally spent

her days doing chores, talking to friends, and watching television. Id.

Dr. Shapiro opined that plaintiff may have difficulty adequately understanding

and following some instructions and directions, as well as completing some tasks due to

memory, concentration, and cognitive deficits. T. 292. She further opined that plaintiff

may have difficulty interacting appropriately with others due to social withdrawal. Id.

She stated that attending work and maintaining a schedule may be difficult for plaintiff

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due to lack of motivation and lethargy. Id. Dr. Shapiro noted that plaintiff does not

appropriately manage stress. Id. Dr. Shapiro recommended that plaintiff be referred

for more comprehensive treatment to a psychiatrist or a clinical psychologist. Id.

5. Dennis Noia, Ph.D

On November 19, 2015, plaintiff met with Dr. Noia for a consultative psychiatric

examination. T. 1748. Plaintiff reported that she usually woke up three times per night,

and that her appetite had increased. Id. at 1749. She indicated that when she was

depressed, her symptoms included dysphoric moods, psychomotor retardation, crying

spells, loss of usual interests, increased irritability, fatigue and loss of energy,

diminished self esteem, problems with memory, problems with concentration, and

diminished sense of pleasure. Id. When manic, she experienced more talkative and

pressured speech, increased goal-directed activity, distractability, psychomotor

agitation, decreased need for sleep, and excessive involvement in pleasurable

activities. Id.

Dr. Noia observed that plaintiff's eye contact was appropriate. T. 1750. Her

affect was congruent with her thoughts and speech. Id. Plaintiff's mood was calm, and

she appeared relaxed and comfortable. Id. Her attention and concentration was intact,

and she was able to count, perform simple calculations, and serial 3s. Id. Plaintiff's

recent and remote memory skills were mildly impaired, and she was able to recall three

objects immediately and two after five minutes. Id. She could restate five digits forward

and two digits backward. Id. Plaintiff's intellectual functioning was estimated to be in

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the low average range, and her general fund of information appeared to be appropriate

to experience. Id. Plaintiff's insight and judgment were good. Id.

As to mode of living and current functioning, plaintiff reported that she could

dress, bathe, and groom herself. T. 1750. She reported that she could not cook and

prepare food, clean, do laundry, or shop because of her medical problems. Id. She did

not drive and could not use public transportation. Id. Plaintiff indicated that she has

difficulty getting along with family and friends. Id. She spent her days resting, reading,

watching television, and listening to the radio. Id. at 1751.

Dr. Noia opined that plaintiff had no limitations understanding and following

simple instructions and directions, performing simple and complex tasks, attending to a

routine and maintaining a schedule, learning new tasks, and making appropriate

decisions. T. 1751. Plaintiff had mild limitations maintaining attention and

concentration for tasks. Id. Dr. Noia indicated that plaintiff appeared to be able to

relate to and interact moderately well with others. Id. Plaintiff had moderate limitations

in her ability to deal with stress. Id. Dr. Noia indicated that plaintiff appeared to be

intellectually capable of managing her money. Id. Dr. Noia indicated that plaintiff's

prognosis was guarded, but with continued intervention and support, there was hope

she could find symptom relief and maximize her abilities. Id.

6. David Kang, M.D. and Deanna Raymond, RPA-C

On November 5, 2010, Dr. Kang co-signed a medical source statement

completed by RPA-C Deanna Raymond. T. 430. PA Raymond indicated that plaintiff

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had been treating with a therapist once a week for forty-five minutes and once a month

with a prescriber for thirty minutes. Id. She indicated that plaintiff could maintain

regular attendance and be punctual within customary, usually strict tolerances; sustain

an ordinary routine without special supervision; ask simple questions or request

assistance; and be aware of normal hazards and take appropriate precautions. Id. at

431. Plaintiff was limited but satisfactory in her ability to remember work-like

procedures; understand and remember very short and simple instructions; carry out

very short and simple instructions; and make simple work-related decisions. Id.

Plaintiff was seriously limited in her ability to work in coordination with or proximity to

others without being unduly distracted; complete a normal workday and workweek

without interruptions from psychologically based symptoms; perform at a consistent

pace without an unreasonable number and length of rest periods; accept instructions

and respond appropriately to criticism from supervisors; get along with co-workers or

peers without unduly distracting them or exhibiting behavioral extremes; and respond

appropriately to changes in a routine work setting. Id. Plaintiff was unable to meet

competitive standards in her ability to deal with normal work stress. Id. It was unclear

whether she could maintain attention for two hour segments. Id. PA Raymond

indicated that work stress made plaintiff “lash out at everybody and wanna fight.” Id.

She indicated that she often “forg[o]t everything that was said,” and did not want to be

around co-workers. Id.

PA Raymond opined that plaintiff could maintain socially appropriate behavior

and adhere to basic standards of neatness and cleanliness. T. 432. Plaintiff was

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limited in her ability to interact appropriately with the general public and use public

transportation. Id. Plaintiff was seriously limited in her ability to travel to an unfamiliar

place. Id. PA Raymond indicated that plaintiff would be off-task 10 percent of the work

day. Id.

F. The ALJ’s Analysis of Opinion Evidence and Plaintiff's RFC

When evaluating a claim seeking disability benefits, factors to be considered by

the ALJ include objective medical facts, clinical findings, the treating physician's

diagnoses, subjective evidence of disability, and pain related by the claimant. See

Harris v. R.R. Ret. Bd., 948 F.2d 123, 126 (2d Cir.1991). Generally, more weight is

given to a treating source. Under the regulations, a treating source's opinion is entitled

to controlling weight if well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is consistent with other substantial evidence in the record.

20 C.F.R. § 404.1527(d)(2) (2005); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).

“This rule applies equally to retrospective opinions given by treating physicians.”

Campbell v. Astrue, 596 F. Supp. 2d 445, 452 (D.Conn. 2009) (citations omitted).

Before a treating physician's opinion can be discounted, the ALJ must provide “good

reasons.” Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998).

The ALJ is required to assess the following factors in determining how much

weight to accord the physician's opinion: “(i) the frequency of examination and the

length, nature, and extent of the treatment relationship; (ii) the evidence in support of

the opinion; (iii) the opinion’s consistency with the record as a whole; (iv) whether the

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opinion is from a specialist; and (v) other relevant factors.” Schaal, 134 F.3d at 503. If

other evidence in the record conflicts with the opinion of the treating physician, this

opinion will not be deemed controlling or conclusive, and the less consistent the opinion

is, the less weight it will be given. See Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)

(citation omitted). Ultimately, the final determination of disability and a claimant's

inability to work rests with the Commissioner. See id. at 133-34; 20 C.F.R. §

404.1527(e) (2005).

RFC describes what a claimant is capable of doing despite his or her

impairments, considering all relevant evidence, which consists of physical limitations,

symptoms, and other limitations beyond the symptoms. See Martone, 70 F. Supp. 2d

at 150; 20 C.F.R. §§ 404.1545, 416.945. “In assessing RFC, the ALJ’s findings must

specify the functions plaintiff is capable of performing; conclusory statements regarding

plaintiff's capabilities are not sufficient.” Martone, 70 F. Supp. 2d at 150. The ALJ then

uses the RFC to determine whether the claimant can perform his or her past relevant

work. See New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990); 20 C.F.R. §§

404.1545, 416.960. If it is determined that a claimant cannot perform past relevant

work, “the burden shifts to the Commissioner to determine whether there is other work

which the claimant could perform.” Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).

When assessing a claimant's RFC, an ALJ is entitled to rely on opinions from

both examining and non-examining State agency medical consultants because these

consultants are qualified experts in the field of social security disability. See also Frey

ex rel. A.O. v. Astrue, 485 F. App'x 484, 487 (2d Cir. 2012) (summary order) ("The

18

report of a State agency medical consultant constitutes expert opinion evidence which

can be given weight if supported by medical evidence in the record."); Little v. Colvin,

No. 14-CV-0063, 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) ("State agency

physicians are qualified as experts in the evaluation of medical issues in disability

claims. As such, their opinions may constitute substantial evidence if they are

consistent with the record as a whole.") (internal quotation marks omitted). “An ALJ

should consider ‘all medical opinions received regarding the claimant.” Reider v.

Colvin, No. 15-CV-6517, 2016 WL 5334436, at *5 (W.D.N.Y. Sept. 23, 2016) (quoting

Spielberg v. Barnhart, 367 F. Supp. 2d 276, 281 (E.D.N.Y. 2005)); see also SSR 96-8p,

1996 WL 374184, at *7 (July 2, 1996). The factors for considering opinions from

non-treating medical sources are the same as those for assessing treating sources,

with the consideration of whether the source examined the claimant or not replacing the

consideration of the treatment relationship between the source and the claimant. 20

C.F.R. §§ 404.1527(c)(1)-(6).

As an initial matter, the Court notes that “[a]n ALJ is not required to rely on any

one opinion, so long as she is relying on the evidence as a whole to inform her

decision.” Susan M. v. Comm'r of Soc. Sec., No. 1:18-CV-0623 (GTS), 2019 WL

2754480, at *7 (N.D.N.Y. July 2, 2019) (citing inter alia Matta v. Astrue, 508 F. App’x 53,

56 (2d Cir. 2013) (summary order) (“Although the ALJ’s conclusion may not perfectly

correspond with any of the opinions of medical sources cited in his decision, he was

entitled to weigh all of the evidence available to make an RFC finding that was

consistent with the record as a whole.”). Moreover, “[w]here . . . the record contains

19

sufficient evidence from which an ALJ can assess the [claimant's] residual functional

capacity, . . . a medical source statement or formal medical opinion is not necessarily

required.” Monroe v. Comm'r of Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017) (summary

order) (citations omitted).

In concluding that plaintiff could perform light work with certain physical

restrictions, the ALJ relied primarily on Dr. Ganesh’s consultative examinations, which

he granted “some weight” because the record supported “somewhat greater limitations.”

T. 614. The ALJ indicated that Dr. Ganesh’s examinations in January 2010 and

November 2015 produced similar, yet generally unremarkable results. Id. at 613.

Although plaintiff's gait was normal on both occasions, she could not walk on her heels

or toes without difficulty. Id. at 295, 1739. Plaintiff also had a restricted range of motion

in her lumbar spine, but demonstrated negative straight leg raises bilaterally. Id. at 296,

613, 1739. Dr. Ganesh opined that plaintiff had mild limitations lifting, carrying,

pushing, and pulling in 2010, and mild to moderate limitations in those areas in 2015.

See id. at 297, 1740. Moreover, the Court agrees with the Commissioner that Dr.

Ganesh’s finding of mild to moderate limitations is consistent with light work. See Dkt.

No. 12 at 9 (citing inter alia Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (2d Cir.

2013) (summary order) (affirming RFC for light work with occasional climbing balancing,

stooping, kneeling, crouching, and crawling, where CE opined that plaintiff had a “mild

to moderate limitation for sitting for a long time, standing for a long time, walking for a

long distance, pushing, pulling, or heavy lifting.”); see also Randy L. B. v. Comm'r of

Soc. Sec., No. 5:18-CV-0358 (GTS), 2019 WL 2210596, at *7 (N.D.N.Y. May 22, 2019)

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(“[T]here is voluminous legal authority . . . that supports the ALJ’s finding of light work

based in part on the mild to moderate limitations opined by [the consultative

examiner].”) (citing Katherine Marie S. v. Comm'r of Soc. Sec., No. 6:18-CV-0233

(TWD), 2019 WL 1427456, at *7 (N.D.N.Y. Mar. 29, 2019) (“Moreover, courts in this

Circuit have found that ‘postural limitations of moderate or lesser severity are generally

consistent with the demands of light work.”); Gurney v. Colvin, No. 14-CV-668S, 2016

WL 805405, at *3 (W.D.N.Y. Mar. 2, 2016) (“Indeed, moderate limitations . . . are

frequently found to be consistent with an RFC for a full range of light work.”) (citing

cases). Consistent with her belief that Dr. Ganesh’s opinion was not restrictive enough

for plaintiff’s “somewhat greater limitations,” the ALJ credited PA Woods’ opinion that

plaintiff needed to change positions — albeit, she did not find support in the record for

the need to change positions “frequently.” T. 614, 1603. In that vein, the ALJ required

that plaintiff

change position at approximately one-hour intervals (She can

sit for one hour, then would need to stand for about five

minutes. She can then resume the former position). Similarly,

[plaintiff] can stand for one hour, but would then need to sit for

about five minutes, and she does not need to leave the

workstation during the change in position.

Id. at 612. The physical RFC determination is consistent with plaintiff’s medical

records, which demonstrate that plaintiff had relatively normal lumbar MRIs in

December 2010, August 2012, and August 2016. Id. at 549, 613, 1548-49, 2183. To

the extent that the MRIs showcased minor abnormalities, the ALJ noted them in her

analysis. See id. at 613 (December 2010: noting that the MRI “revealed a grade 1

retrolisthesis of L5 over S1 associated with ‘mild’ bilateral neural foraminal narrowing,

21

but no nerve root impingement. There was also a ‘small’ annular tear and ‘minimal’ disc

bulge at L4-5, with no significant spinal canal stenosis or neural foraminal stenosis.”),

(August 2012: noting that the MRI was “normal except for some ‘early’ degenerative

disc change of L5-S1, with ‘slight’ central disc bulging, but no stenosis.”) (citing id. at

549, 1548-49).

To the extent that plaintiff argues that the ALJ erred in failing to grant more

weight to PA Woods’ opinion concerning plaintiff's other physical limitations, the Court

disagrees. As the ALJ set forth, PA Woods’ opinion that plaintiff was limited in her

ability to lift more than five to ten pounds, sit for more than two-to-four hours a day, or

stand/walk for more than one-to-two hours per day, see T. 1603, was inconsistent with

Dr. Ganesh’s consultative examinations which showed that plaintiff had full strength and

range of motion in her upper and lower extremities, and opined, at most, mild to

moderate limitations in plaintiff's ability to lift, carry, push, or pull. Id. at 295, 1739-40.

PA Woods’ limitations were also inconsistent with plaintiff's diagnostic imaging,

including the relatively normal MRI results, as well as a March 2015 electrodiagnostic

study of plaintiff's right lower extremity that provided normal results and “no evidence of

an acute or chronic lumbar motor radiculopathy or plexopathy.” Id. at 549, 1548-49,

2180, 2183. The ALJ also properly took into account plaintiff's limited treating

relationship with PA Woods, i.e., nearly four months. See id. at 614, 1602. Moreover,

the ALJ was not obligated to assess PA Woods’ opinion as that of a treating source

subject to the treating physician rule because of her role as a physician’s assistant.

See King v. Comm'r of Soc. Sec., 350 F. Supp. 3d 277, 282 (W.D.N.Y. 2018), appeal

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dismissed (Apr. 22, 2019) (“Because they are not acceptable medical sources pursuant

to the Regulations, physician assistants cannot be considered treating sources subject

to the treating physician rule.”). To the extent that plaintiff argues that the ALJ only

addressed plaintiff's diagnostic imaging and “failed to consider the extensive record as

a whole,” the Court finds this argument misplaced. See Dkt. No. 11 at 22. “An ALJ

need not, however, explicitly address each and every statement made in the record that

might implicate her evaluation of a claimant's credibility as long as ‘the evidence of

record permits us to glean the rationale of an ALJ's decision.” Martes v. Comm'r of

Soc. Sec., 344 F. Supp. 3d 750, 767 (S.D.N.Y. 2018) (quoting Cichocki v. Astrue, 534

F. App’x 71, 76 (2d Cir. 2013) (summary order)); see also Colbert v. Comm'r of Soc.

Sec., 313 F. Supp. 3d 562, 580 (S.D.N.Y. 2018) (concluding that although the ALJ's

credibility determination “did not explicitly address the side effects of [plaintiff's]

medications, there is ample evidence in the opinion and the record to ‘glean the

rationale of the ALJ's decision.”) (citation omitted). The ALJ’s decision demonstrates

that she assessed the entire record as a whole in determining how plaintiff's physical

limitations affected her RFC. See T. 612-14. As such, the Court concludes that the

ALJ properly weighed PA Woods’ opinion.

With regard to Dr. Buchan, plaintiff argues that the ALJ improperly weighed Dr.

Buchan’s December 2009 and February 2013 assessments. In affording Dr. Buchan’s

opinions “little to no weight,” the ALJ reasoned that “[t]he limitations she describe[d],

particularly in 2013, [were] so extreme, they would not be compatible with anything but

bed rest, which is clearly unsupported by the objective medical evidence of record.” T.

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614. To be sure, it is well-settled that “[t]he ALJ cannot arbitrarily substitute his own

judgment for competent medical opinion.” Morgan v. Colvin, 592 F. App’x 49, 49 (2d

Cir. 2015) (summary order). Although the Court finds the ALJ’s comment regarding

plaintiff’s limitations questionable at best, the Court finds the error harmless as the ALJ

provided “other good reasons” for discounting Dr. Buchan’s opinions, including that they

were “unsupported by the objective medical evidence of record.” T. 614; see Prue v.

Comm’r of Soc. Sec., No. 2:13-CV-13, 2014 WL 37669, at *5 (D. Vt. Jan. 6, 2014)

(deciding that the ALJ gave “other good reasons, supported by substantial evidence, for

the weight assigned” to plaintiff’s medical providers, including whether the opinions

were consistent with the provider’s treatment notes and other evidence in the record).

Although plaintiff may have interpreted the medical evidence in a different

manner, “the Court cannot conclude that the ALJ erred as a matter of law or that he

arrived at an RFC determination that is not supported by substantial evidence” with

regard to plaintiff’s physical limitations as substantial evidence exists demonstrating that

plaintiff can perform light work with certain exertional limitations. Crimes v. Colvin, No.

15-CV-308-FPG, 2016 WL 4147291, at *5 (W.D.N.Y. Aug. 3, 2016) (citing Burgess v.

Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (“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.”).

As to plaintiff’s mental limitations, the ALJ limited plaintiff to

work that does not require more than simple, short interactions

with supervisors, co-workers or the public, and although she

may work in proximity to others, the tasks do not require

working in conjunction with others and predominantly involve

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working with objects rather than people. Finally, [plaintiff] is

limited to routine daily tasks and duties in the same workplace

which do not significantly change in pace or location on a daily

basis.

T. 612. In making that determination, the ALJ relied on, to some extent, Dr. Shapiro’s

opinion. Id. at 614. The ALJ stated that “Dr. Shapiro opined that [plaintiff] ‘may have

difficulty adequately understanding and following some instructions and directions as

well as completing some tasks due to memory, concentration, and cognitive deficits.’”

Id. The ALJ noted that Dr. Shapiro also thought that plaintiff might “‘have difficulty

interacting appropriately with others due to social withdrawal,’” and that plaintiff “did not

‘appropriate manage stress’ and may have difficulty attending work or maintaining a

schedule ‘due to lack of motivation and lethargy.’” Id. The ALJ found Dr. Shapiro’s

limitations inconsistent with both her examination findings, as well as plaintiff’s reported

activities of daily living. Id. Although “it is well-settled that the performance of basic

daily activities does not necessarily contradict allegations of disability, as people should

not be penalized for enduring the pain of their disability in order to care for themselves,”

Battease v. Comm’r of Soc. Sec., No. 3:15-CV-867 (ATB), 2016 WL 3824146, at *7

(N.D.N.Y. July 13, 2016) (internal quotations omitted), the Court concludes that the ALJ

did not err in determining that plaintiff’s reports that she could dress, bathe, and groom

herself, and cook, do laundry, and shop if she was not in too much pain were

inconsistent with Dr. Shapiro’s more restrictive mental limitations. Id. at 291, 614. The

Court notes that plaintiff also reported that she got along well with friends and family,

and spent her days performing chores, talking to friends, and watching television. Id. at

292. Thus, the ALJ’s reliance, in part, on plaintiff’s activities of daily living was not in

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error. See Martone, 70 F. Supp. 2d at 153 (“In summary, the objective medical

evidence, the conservative treatment which plaintiff receives, as well as plaintiff's daily

activities all belie plaintiffs claims of disabling pain and functional limitations.

Therefore, substantial evidence supports the ALJ's decision to not fully credit plaintiff's

subjective allegations.”).

The ALJ also credited Dr. Shapiro’s January 2010 mental status examination,

wherein she observed that plaintiff's demeanor and responsiveness to questions was

cooperative, and her manner of relating, social skills, and overall presentation was

adequate. T. 291,615. Although plaintiff exhibited poor eye contact, her speech

intelligibility was fluent and her quality of voice was clear. Id. Plaintiff's thought

processes were coherent and goal directed with no evidence of delusions,

hallucinations, or disordered thinking. Id. Although plaintiff's mood was depressed and

she appeared sad, her sensorium was clear and she was oriented x3. Id. Dr. Shapiro

found that plaintiff's attention and concentration were intact, and she was able to

complete simple calculations. Id. Dr. Shapiro’s examination was generally consistent

with Dr. Noia’s November 2015 mental status examination, wherein he observed that

plaintiff's demeanor and responsiveness to questions was cooperative, and her manner

of relating, social skills, and overall presentation was adequate. Id. at 1749-50.

Plaintiff's eye contact was appropriate, and her affect was congruent with her thoughts

and speech. Id. at 1750. Her attention and concentration was intact, and she was able

to count, perform simple calculations, and serial 3s. Id. Plaintiff's recent and remote

memory skills were mildly impaired, and she was able to recall three objects

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immediately and two after five minutes. Id. She could restate five digits forward and

two digits backward. Id. Plaintiffs intellectual functioning was estimated to be in the

low average range, and her general fund of information appeared to be appropriate to

experience. Id. Plaintiff's insight and judgment were good. Id. Dr. Noia ultimately

concluded that plaintiff had no limitations understanding and following simple

instructions and directions, performing simple and complex tasks, attending to a routine

and maintaining a schedule, learning new tasks, and making appropriate decisions;

mild limitations maintaining attention and concentration for tasks; and moderate

limitations in her ability to deal with stress. Id. at 1751. Plaintiff appeared to be able to

relate to and interact moderately well with others. Id.

Dr. Shapiro and Dr. Noia’s findings are also generally consistent with the medical

records of Celia Kamps, LCSW. Ms. Kamps indicated in March 2010 that although

plaintiff was limited in her ability to sustain concentration and persistence and engage in

social interaction, she could maintain attendance and punctuality, could sustain a

routine with reminders, and work with others until they annoyed her. T. 1466. In

October 2010, Ms. Kamps indicated that plaintiff had no limitations in her ability to

engage in social interaction, and that she could maintain attendance, but may need

step-by-step directions. Id. at 1467. Plaintiff further had no limitations in her ability to

engage in social interaction in April 2011. Id. at 1469. Although the ALJ afforded Ms.

Kamps’ records “little weight,” plaintiffs mental RFC reflects the limitations she set forth,

including limiting plaintiff to short, simple interactions with supervisors, co-workers and

the public and routine, daily tasks that do not involve significant changes in pace and

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location. Id. at 612.

Insofar as plaintiff argues that the ALJ improperly weighed Dr. Kang’s opinion,

the Court agrees with the Commissioner that the ALJ correctly granted “little weight” to

Dr. Kang’s co-signature. Plaintiff is correct that courts in this Circuit have concluded

that “[w]here the opinion of a treating health care provider who is not an acceptable

medical source is co-signed by a treating health care provider who is an acceptable

medical source, it is generally entitled to controlling weight under the treating physician

rule.” Novaco v. Berryhill, No. 3:16-CV-1918 (VAB), 2019 WL 1404189, at *10 (D.

Conn. Mar. 28, 2019) (citing Luna v. Colvin, No. 3:14-CV-145 (HBF), 2016 WL

4408987, at *5-7 (D. Conn. Aug. 17, 2016) (finding error and remanding where ALJ

failed to apply treating physician rule to opinions of treating LCSW co-signed by treating

psychiatrist); Shailer-Solak v. Berryhill, No. 3:16-CV-1681 (VAB), 2019 WL 1284814,

*15 n.4 (D. Conn. Mar. 20, 2019) (noting that the parties did not dispute that the

opinions of LCSW were made by treating source because they were co-signed by

Plaintiff’s treating psychiatrist and medication provider). However, “[t]he co-signing

acceptable medical source, however, must also be a ‘treating’ provider for the claimant;

i.e., he or she must actually provide some level of regular treatment to the claimant.”

Novaco, 2019 WL 1404189, at *10 (citing Luna, 2016 WL 4408987, at *6-7 (noting that

co-signing psychiatrist had started treating plaintiff in 2010, prepared four treatment

plans with LCSW, and provided medication management approximately 13 times

between 2010 and 2012). Moreover, the regulations advise that “because

nonexamining sources have no examining or treating relationship with you, the weight

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we will give their medical opinions will depend on the degree to which they provide

supporting explanations for their medical opinions.” 20 C.F.R. § 404.1527(c)(3).

In granting Dr. Kang “little weight,” the ALJ correctly indicated that it did “not

appear that Dr. Kang every personally evaluated” plaintiff. T. 616. There is no

indication in the record that Dr. Kang either treated or examined plaintiff. The Court

agrees with the Commissioner that, to the extent Dr. Kang is mentioned in plaintiff’s

medical records as supervising plaintiff’s treatment or approving certain medical

information, Ms. Kamps, Jennifer DiFabio, and PA Raymond were responsible for

plaintiff’s treatment. See id. at 279-88, 330-36, 337-44, 351-58, 359-63, 452-56, 460,

466-506, 508-11, 1466-72, 1605, 1607, 1610-21, 1623-24, 1627-28, 1631-47, 1651-65,

1667-74, 1676-90; Dkt. No. 12 at 15. Insofar as Dr. Kang’s name does appear under

“staff responsible” in medical records from the Brownell Center, the notations state that

plaintiff “will manage meds safely as evidenced by reports in scheduled sessions.” T.

457, 465, 468; Dkt. No. 12 at 15. The Court agrees with the Commissioner that

“[a]ssuming Dr. Kang’s three medication management notations were actual visits with

[p]laintiff, and not just his review of reports completed by her therapists, the infrequency

of the visits do not establish a treating relationship.” Dkt. No. 12 at 15-16 (citing inter

alia Zukowski v. Berryhill, No. 8:16-CV-1537 (CFH), 2018 WL 1325875, at *11

(N.D.N.Y. Mar. 13, 2018) (“The ALJ properly accounted for the fact that, at the time he

issued his medical source statement, Dr. Rigueur treated plaintiff on just two occasions,

including the day of his evaluation. Courts in this Circuit have held that when a doctor

has seen the plaintiff on only one or two occasions, the doctor’s opinion is not entitled

29

to the weight of a treating physician because he did not provide plaintiff with the type of

ongoing medical treatment that would define them as a ‘treating physician.’”) (citation

and internal quotation marks omitted)). As such, the ALJ properly afforded “little

weight” to Dr. Kang’s co-signature.

Further, the ALJ was not obligated to grant more weight to PA Raymond

pursuant to the November 5, 2010 opinion. As a physician’s assistant, the regulations

define PA Raymond as an “other source” “whose opinions may be considered with

respect to the severity of the claimant's impairment and ability to work, but need not be

assigned controlling weight.” Genier v. Astrue, 298 F. App'x 105, 108 (2d Cir. 2008)

(summary order) (citing 20 C.F.R. § 416.913(d)(1)). Courts in this Circuit have held that

“the co-signature of a non-treating acceptable medical source alone does not transform

the opinion of a treating non-acceptable medical source into one with controlling weight

as a matter of law.” Novaco, 2019 WL 1404189, at *10. In assigning the November 5,

2010 opinion “little weight,” the ALJ stated that the limitations assessed were “not

consistent with [plaintiff’s] mental status exam and appear[ed] from the comments to be

largely based upon [plaintiff’s] subjective statements and complaints.” T. 616. To be

sure, the Second Circuit has held that “[t]he fact that [a treating physician] also relied on

[a plaintiff's] subjective complaints hardly undermines his opinion as to her functional

limitations, as [a] patient's report of complaints, or history, is an essential diagnostic

tool.” Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (quotation omitted).

However, the Court notes that PA Raymond failed to provide citations to

“medical/clinical findings that support[ed] [her] assessment” other than plaintiff’s

30

subjective complaints that work stress causes her to “lash out at everybody and wanna

fight’; she “forget[s] everything that was said” to her; and she “just [didn’t] want to be

around” coworkers because she felt uncomfortable. T. 431; but see Mojbel v. Comm'r

of Soc. Sec., 385 F. Supp. 3d 199, 204 (W.D.N.Y. 2019) (concluding that the ALJ failed

to provide good reasons for discounting the treating provider's opinion on the basis of

the plaintiff's subjective reporting where the treating provider’s “medical source

statement specifically set[ ] forth the clinical findings that informed his opinion, including

the MRIs of Plaintiff's lumbar spine that showed multiple herniated discs and physical

examinations showing positive straight leg raising tests on the left, lumbar tenderness,

and decreased range of motion.”). The Court finds that “this was a sufficient reason for

the ALJ to discount the weight given to the opinion.” Thomas v. Berryhill, 337 F. Supp.

3d 235, 243 (W.D.N.Y. 2018) (concluding that the ALJ properly afforded the medical

provider’s opinion discounted weight where it was clear he had relied on the plaintiff's

subjective complaints in assessing the limitations).

The ALJ has the responsibility of reviewing all the evidence before her, resolving

inconsistencies, and making a determination consistent with the evidence as a whole.

See Bliss v. Colvin, No. 13-CV-1086, 2015 WL 457643, at *7 (N.D.N.Y., Feb. 3, 2015).

"[I]t is the province of the ALJ to consider and resolve conflicts in the evidence as long

as the decision rests upon ‘adequate findings supported by evidence having rational

probative force.” Camarata v. Colvin, No. 14-CV-0578, 2015 WL 4598811, at *9

(N.D.N.Y. July 29, 2015) (quoting Galiotti v. Astrue, 266 F. App'x 66, 67 (2d Cir. 2008)

(summary order)). It is clear from the ALJ's overall decision that she appropriately

31

considered the evidence before her, including the opinions of record and plaintiff’s

medical records.

As such, the Court's review of the ALJ's overall decision indicates that she

properly reviewed the evidence of record and provided sufficient explanation for her

analysis. For the reasons above, the Court therefore finds that the ALJ's RFC

determination (including her analysis of the opinion evidence) and overall finding that

plaintiff is not disabled are supported by substantial evidence.

G. Appeals Council’s Orders

Plaintiff next argues that the ALJ failed to account for all of the Appeals Council’s

orders on remand. Dkt. No. 11 at 23-25. Specifically, plaintiff argues that the ALJ

failed to give appropriate consideration to Dr. Buchan’s opinion, as well as plaintiff’s

subjective complaints. See id. Appropriateness of the comment aside, the ALJ did

indicate that she discredited Dr. Buchan’s opinions because they were unsupported by

the objective medical evidence in the record, T. 614 — a statement that the Court found

credible. See supra, at 23-24. Moreover, the Court agrees with the argument set forth

by the Commissioner that the ALJ adequately accounted for plaintiff’s subjective

complaints throughout the decision, including ample discussion as to plaintiff’s reported

symptoms and her activities of daily living. See T. 610, 612, 615; Dkt. No. 12 at 17-19.

As such, the Court concludes that ALJ accounted for the Appeals Council’s order.

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lll. Conclusion

WHEREFORE, for the reasons stated above, it is hereby:

ORDERED, that Erica M.’s motion (Dkt. No. 11) is DENIED; and it is further

ORDERED, that the Commissioner's motion for judgment on the pleadings (Dkt.

No. 12) is GRANTED; and it is further

ORDERED, that the Clerk of the Court serve copies of this Memorandum-

Decision and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: September 9, 2019 ff

Albany, New York Chistes Zo. kfeom Pail : ff

U.S. Magistrate Judge

33