# Granato v. Commissioner of Social Security

> District Court, N.D. New York · February 10, 2020

URL: https://www.frixlaw.com/law-library/cases/10312611

## Case

- **Court:** District Court, N.D. New York
- **Decided:** February 10, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10312611

## How later opinions describe it (automated extraction)

- holding that moderate limitations in “relating to instructions, concentration, [and] attendance” are consistent with unskilled work
- noting that a “consultative physician’s opinion may serve as substantial evidence,” and finding no error in ALJ’s reliance on consultative examiner’s opinion in developing the RFC
- noting that “the absence of an express rationale for an ALJ’s conclusions does not prevent [the court] from upholding them so long as 13 U.S. Dist. LEXIS 102235, at —-14 (N.D.N.Y. June 29, 2017

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DEINNA G.,
Plaintiff,
v. 6:18-CV-1342 (NAM)
“| ANDREW M. SAUL, COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

Appearances:
Deinna G.
Plaintiff Pro Se
Catharine L. Zurbrugg
Social Security Administration
Office of Regional General Counsel - Region II
26 Federal Plaza - Room 3904
New York, New York 10278
Counsel for Defendant
Hon. Norman A. Mordue, Senior United States District Court Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Deinna G. filed this action under 42 U.S.C. § 405(g), challenging the denial
of her applications for Social Security Disability (“SSD”) insurance benefits and
Supplemental Security Income (“SSI”). (Dkt. No. 1). Acting pro se, Plaintiff submitted a
Form Complaint for appeal of a decision by the Commissioner of Social Security
(“Commissioner”), requesting judicial review and entry of judgment for such relief as may be
proper. (/d.). Despite several reminders, Plaintiff failed to submit a brief in support of her

appeal. (See Dkt. Nos. 6, 12). The Commissioner submitted its brief on June 11, 2019.
(Dkt. No. 13). After carefully reviewing the administrative record, (Dkt. No. 10), the Court
affirms the decision of the Commissioner, for the following reasons.
Il. BACKGROUND
A. Procedural History
“ Plaintiff applied for SSD and SSI benefits on July 23, 2015, alleging that she became
disabled on November 24, 2007. (R. 133, 135). The Social Security Administration (“SSA’”’)
denied Plaintiff's claims on November 10, 2015. (R. 77-82). Plaintiff appealed, and a
hearing was held on July 13, 2017 before Administrative Law Judge (“ALJ”) John Ramos.
(R. 29-53, 83). On October 16, 2017, the ALJ issued a decision finding that Plaintiff was
not disabled. (R. 15-24). Plaintiff's subsequent request for review by the Appeals Council
»| was denied. (R. 1-3). Plaintiff then commenced this action. (Dkt. No. 1).
B. Plaintiff’s Background and Testimony
Plaintiff alleged that she became unable to work on November 24, 2007 due to
depression, anxiety, social phobia, mood disorder, prior drug addiction, and asthma. (R.
175). Plaintiff stopped working at her last job because the office “had budget cuts and [she]
was let go.” (Ud.). Plaintiff was born in 1972. (R. 54). She received her GED in 1990, and
has past work experience as a cashier, office worker, receptionist, and waitress. (R. 176).
At the administrative hearing, Plaintiff testified that she suffers from “social anxiety”
and “phobias” that cause insomnia. (R. 37). She stated that she struggles “on a daily basis to
do anything,” and is “in therapy to try to figure out why [she has] changed so dramatically.”
She stated that she attends therapy every couple of weeks, and takes medications for
her anxiety and depression that “help some, but not completely.” (R. 40). She complained of

insomnia, and described having phobias of bugs and being around other people. (R. 46-47).
Plaintiff testified that she does not socialize much and has a strained relationship with her
family “[b]ecause of her past drug addiction.” (R. 47). She stated that she obsessively
worries about her son’s safety and her own health. (R. 48).
Plaintiff reported that she prepares simple meals on a daily basis and can perform
household chores. (R. 188). She cares for her three-year-old son and is able to “take care of
all his needs.” (R. 187). She leaves the house to go grocery shopping and to pay bills. (R
189). She can manage money, drive a car, and leave the house alone. (/d.). She takes her
son to the park at least once a week for an hour. (R. 48).
Plaintiff stated that she is limited in her ability to lift things and experiences pain
when kneeling. (R. 191). She estimated that she is able to walk for 20 minutes without
| Stopping. (R. 192). Plaintiff explained that she suffers from asthma and panic attacks which
are triggered by her anxiety issues. (R. 193-95). She reported being able to finish what she
starts and follow instructions. (R. 192—93). She stated that she is “distracted by worry of
how [she is] going to support [her] son,” and is “always thinking [she is] not worthy, or good
enough.” (R. 192). She reported that she “always felt inferior or [that she] was being judged
negatively.” (R. 193). She stated that “[s]tress causes her to quit before [she] even begin[s]”
and “change[s] in schedule make [her] feel that [she] can’t succeed.” (d.).
C. Medical Evidence of Disability
1. Central New York Services, Inc.
In September 2012, Plaintiff received a mental health assessment at Central New York
Services, Inc., a private, not-for-profit behavioral health organization. (R. 220-53). Plaintiff
reported that she had relapsed into drug use beginning in July 2012 when she took painkillers

following kidney stone surgery. (R. 220, 232). She stated that she attended AA once a week
and was seeking employment. (R. 230-31).
The evaluator determined that Plaintiff’s thought process was “unremarkable,” she had
“adequate” motivation and interest in the evaluation, she was “alert and responsive,” her mood
was “appropriate,” she had no problems maintaining attention and was not distractible, and her
4\ memory, cognitive functioning, insight, and judgment were intact. (See R. 236-38). She
successfully completed the treatment program in September 2013, including remaining
abstinent from drugs and alcohol and complying with her treatment. (R. 249). The evaluator
found that Plaintiff’s prognosis was “‘very good.” (R. 250).
2. Human Technologies Corporation
In January 2014, Plaintiff received a psychiatric evaluation and medication
Management review through the Mental Health Connections program at Human Technologies
Corporation for her alleged mood swings, anger, depression, and anxiety. (R. 286-88).
Plaintiff was seen by Nurse Practitioner (“NP”) Robert Sharpe, who assessed that Plaintiff was
alert and fully oriented, with clear speech, a linear thought process, and logical associations.
(R. 288). NP Sharpe noted that Plaintiff exhibited an “overwhelmed and angry” mood and
affect. Ud.). He noted that Plaintiff's appearance was neat and clean, her body posture was
z| relaxed, and her memory, concentration, judgment, and insight were all intact. (/d.). NP
Sharpe diagnosed “anxiety disorder,” “depressive disorder,” “obsessive-compulsive disorder,”
and “polysubstance abuse dependence, reported to be in remission.” (/d.).
Overall, Plaintiff's mental status examination results from January to July 2014
remained essentially the same, with Plaintiff's mood generally improving over that period.
(See R. 288-89, 292, 294, 296, 298). A follow-up examination later in January 2014 revealed

similar results, though Plaintiff’s memory and concentration were “grossly intact,” and she
reported an improved mood. (R. 289-90). During an assessment in February 2014, Plaintiff
reported that her mood was “better,” and she was found to exhibit “good” judgment and “fair”
insight. (R. 292). When Plaintiff returned to NP Sharpe in April 2014, she said that her mood
was “up and down,” but on May 13th, her mood was “pretty good overall,” though she had
A\ some “ongoing stressors.” (R. 294, 296). In July 2014, she told NP Sharpe that her mood was
“good.” (R. 298).
3. Mohsin Syed, M.D., Slocum-Dickson Medical Group
Plaintiff saw internist Dr. Mohsin Syed in December 2013 to establish care at Slocum-
Dickson Medical Group. (R. 331). Dr. Syed noted Plaintiff’s history of drug use, anxiety, and
asthma. (/d.). She reported that she smoked six to seven cigarettes per day. (/d.). Dr. Syed
| assessed that Plaintiffs physical examination results were unremarkable and encouraged her to
quit smoking. (R. 331-32).
In April 2014, Plaintiff presented to Dr. Syed for an annual physical examination and
psychiatric assessment. (R. 324-27). Plaintiffs physical examination was generally
unremarkable. (/d.). As to mental health, Dr. Syed found that Plaintiff exhibited no anxiety,
agitation, or depression. (R. 326). He also assessed that Plaintiff’ s judgment and insight were
“intact.” CUd.).
Plaintiff returned to Dr. Syed in June 2014; her physical examination results were
unremarkable, but she reported that her anxiety was not well controlled. (R. 322-23). Plaintiff
returned on January 20, 2015 with complaints of congestion and shortness of breath. (R. 319).
Her physical examination results were otherwise unremarkable. (R. 320). Dr. Syed again

counseled Plaintiff on smoking cessation and prescribed Advair to improve her breathing. (R.
319).
4. Jaqueline Santoro, Ph.D., Consultative Examiner
In October 2015, Plaintiff presented to Jacqueline Santoro, Ph.D. for a psychiatric
evaluation. (R. 309-13). Plaintiff informed Dr. Santoro that she had been hospitalized for
| depression and drug problems in the past. (R. 309). Plaintiff reported that she was
prescribed Celexa for depression, Suboxone for her addiction problems, Klonopin for
anxiety, and Advair for asthma. (/d.). Dr. Santoro noted that Plaintiff endorsed symptoms of
depression including social withdrawal, dysphoria, crying spells, irritability, loss of interest,
diminished self-esteem, difficulty sleeping, fatigue, and concentration difficulties. (R. 309—
10).
» Dr. Santoro noted that Plaintiff’s thought processes were “coherent and goal directed
with no evidence of hallucinations, delusions, or paranoia.” (R. 311). She noted that her
mood was “dysthymic,” and found that her affect was “anxious” and “nervous.” (d.). Dr.
Santoro reported that Plaintiff's memory skills, attention, and concentration were all “intact,”
and she was able to count and conduct simple calculations. (d.). Dr. Santoro found that
Plaintiffs insight and judgment were “fair” and that her cognitive functioning was “‘average
to below average.” (/d.). Dr. Santoro also noted that Plaintiff “is able to dress, bathe, and
groom herself, cook and prepare food, do general cleaning, shop, manage money, and drive.”
Plaintiff reported that she does not have friends, but is close with her mother. (R. 311—
12). She stated that she spends her days caring for her son. (R. 312).
Dr. Santoro’s medical source statement concluded that:
The following are in the no limitation range: Follow and
understand simple directions and instructions, perform simple

tasks, and maintain attention and concentration. Moderate
difficulties are noted in maintaining a regular schedule. No
difficulties are noted in learning new tasks or performing complex
tasks. Mild difficulties are noted in making appropriate decisions.
Mild difficulties are noted in relating with others. Mild difficulties
are noted in dealing with stress. Difficulties are due to psychiatric
symptoms.
Ud.). Dr. Santoro found that Plaintiffs prognosis was “fair, given her history of drug use,”
4) and recommended that Plaintiff continue with “individual therapy and psychiatric
intervention.” (/d.).
5. Gerald Kleinerman, M.D., State Agency Consultant
In November 2015, psychiatrist Gerald Kleinerman, M.D., reviewed Plaintiffs medical
records and assessed her mental status. (R. 68). Dr. Kleinerman found that Plaintiffs mental
impairments were severe, but did not meet or equal a Listing. (/d.). Dr. Kleinerman noted that
| Plaintiffs medical history indicated problems with depression, anxiety, and drug abuse. (/d.).
He opined that Plaintiff had mild limitations in activities of daily living, maintaining social
functioning, and maintaining concentration, persistence, or pace, and that she had one or two
episodes of decompensation of extended duration. (/d.). He further opined that although
Plaintiff had mild to moderate difficulty relating to others and dealing with stress, she retained
the mental ability to perform simple jobs involving brief contact with others. (d.).
6. Kristin Lints, LCSW-R, Upstate Cerebral Palsy
On October 6, 2016, Plaintiff had a mental health intake assessment with Licensed
Clinical Social Worker (“LCSW’’) Kristin Lints at Upstate Cerebral Palsy. (R. 339). Plaintiff
reported she had anxiety every day almost all day, and that she could not focus. (d.). She
reported difficulty with everyday things like going grocery shopping, and that she had a phobia
of bugs in her home that had begun in the last few months. Ud.). Ms. Lints found that Plaintiff

was “engaging” and “pleasant,” though her mood was depressed and she cried at times. (/d.).
She was well-groomed, her speech was normal, her thought process was coherent and logical,
and she had no suicidal ideation. (R. 340). Her cognitive functioning, concentration, attention,
and judgment were all “fair.” Ud.). She reported flashbacks and obsessive thoughts. (d.).
Ms. Lints diagnosed generalized anxiety disorder, Post Traumatic Stress Disorder (with
provision for further review), and general substance-related and addictive disorders. (R. 342).
Plaintiff returned to Upstate Cerebral Palsy on October 16, 2016; her diagnoses remained the
same and were to be addressed by abstinence, medication, and therapy. (R. 344-46).
D. ALJ’s Decision Denying Benefits
On October 16, 2017, the ALJ issued a decision denying Plaintiff’s applications for
disability benefits. (R. 15-24). At step one of the five-step evaluation process, the ALJ
| determined that Plaintiff had not engaged in any substantial gainful activity since November
24, 2007, the alleged onset date of her disability. (R. 18). The ALJ also determined that
Plaintiff’ s date last insured was December 31, 2009. (/d.).
At step two, the ALJ found that, under 20 C.F.R. §§ 404.1520(c), 416.920(c),
Plaintiff had two “severe” impairments: depressive disorder and panic disorder. (d.).
At step three, the ALJ found that, while severe, Plaintiff did not have an impairment
or combination of impairments that met the criteria for one of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 8§ 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 416.926) (the “Listings”). (R. 18-20).
The ALJ then assessed Plaintiffs residual functional capacity (“RFC”), finding that:
[Plaintiff] has the [RFC] to perform a full range of work at all
exertional levels. Mentally, [she] retains the ability to understand
and follow simple instructions and directions, perform simple
tasks with supervision and independently, maintain attention

concentration for simple tasks, and regularly attend to a routine
and maintain a schedule. She can relate to and interact with others
to the extent necessary to carry out simple tasks. [Plaintiff] can
also handle reasonable levels of simple work-related stress, in that
she can make decisions directly related to the performance of
simple work and handle the usual work place changes and
interactions associated with simple work.
(R. 21). The ALJ’s underlying analysis explains that this assessment is supported by the
A\ objective medical evidence of record, by the opinions of Drs. Santoro and Kleinerman, as
well as Plaintiff’s reported activities of daily living. (See R. 21-22).
At step four, the ALJ determined that Plaintiff would be unable to perform any of her
past work because the demands of those jobs would “exceed her [RFC].” (R. 22).
Finally, at step five, the ALJ determined that, based on Plaintiffs age, education,
work experience, and REC, there are jobs that exist in significant numbers in the national
»| economy that she could perform. (R. 23). Thus, the ALJ concluded that at all relevant times,
Plaintiff was not disabled under Sections 216(i), 223(d), or 1614(a)(3)(A) of the Social
Security Act. (R. 23-24).
Il. DISCUSSION
A. Disability Standard
To be considered disabled, a claimant must establish that he is “unable to engage in
| any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). In
addition, the claimant’s impairment(s) must be “of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work experience, engage

in any other kind of substantial gainful work which exists in the national economy... .” 42
US.C. § 1382c(a)(3)(B).
The SSA uses a five-step process to evaluate disability claims:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his physical or mental
4 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 meets or equals
the criteria of an impairment listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner] will consider him [per se] disabled... .
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant’s severe
impairment, he has the residual functional capacity to perform his
past work. Finally, if the claimant is unable to perform his past
work, the [Commissioner] then determines whether there is other
work which the claimant can perform.

Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012)); see also 20 C.F.R. §§ 404.1520, 416.920. The Regulations define
residual functional capacity as “the most [a claimant] can still do despite [their] limitations.”
20 C.F.R. §§ 404.1545, 416.945. In assessing the RFC of a claimant with multiple
impairments, the SSA considers all “medically determinable impairments,” including
impairments that are not severe. Id. at §§ 404.1545(a)(2), 416.945(a)(2). The claimant bears
2
the burden of establishing disability at the first four steps; the Commissioner bears the burden
at the last. Selian, 708 F.3d at 418.
B. Standard of Review
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court
does not determine de novo whether Plaintiff is disabled. Rather, the Court must review the
administrative record to determine whether “there is substantial evidence, considering the

10

record as a whole, to support the Commissioner’s decision and if the correct legal standards
have been applied.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009).
When evaluating the Commissioner’s decision, “the reviewing court is required to
examine the entire record, including contradictory evidence and evidence from which
conflicting inferences can be drawn.” Selian, 708 F.3d at 417 (quoting Mongeur v. Heckler,
722 F.2d 1033, 1038 (2d Cir. 1983)). The Court may set aside the final decision of the
Commissioner only if it is not supported by substantial evidence or if it is based upon a legal
error. 42 U.S.C. § 405(g); Selian, 708 F.3d at 417; Talavera, 697 F.3d at 151. “Substantial
evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Brault v. Soc. Sec. Admin., Comm’r, 683
F.3d 443, 447-48 (2d Cir. 2012) (quoting Moran, 569 F.3d at 112). The substantial evidence
»| Standard is “very deferential,” and the Court may only reject the facts found by the ALJ “if a
reasonable factfinder would have to conclude otherwise.” Id. at 448 (quoting Warren vy.
Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)).
C. Analysis
Plaintiff is pro se and has not filed a brief in support of her appeal. The Complaint only
alleges that “the [ALJ’s] decision is not supported by substantial evidence,” and requests that
the Court “re-examine [her] case for disability.” (Dkt. No. 1-1, p. 1). In deference to
Plaintiffs pro se status and out of an abundance of caution, the Court has reviewed the
administrative record, (Dkt. No. 10), and will assess whether the ALJ’s decision is supported
by substantial evidence. See Hubbard v. Comm’r of Soc. Sec., No. 14-CV-1401, 2016 WL
551783, at *4, 2016 U.S. Dist. LEXIS 17300, at *9 (N.D.N.Y. Jan. 14, 2016) (“General Order
18 [ ] states that the Court will ‘consider’ the case notwithstanding a plaintiff's failure to file a

11

brief, albeit in a way that might be ‘heavily influenced by the Commissioner’s version of the
facts.’”’).
1. Qualification for Listings
First, the Court will consider whether substantial evidence supports the ALJ’s finding
that Plaintiff did not have an impairment or combination of impairments that met the criteria
4\ for a Listing. (R. 18-20). The Listings “describe[ ] for each of the major body systems
impairments that [the SSA] consider[s] to be severe enough to prevent an individual from
doing any gainful activity, regardless of his or her age, education, or work experience.” 20
C.F.R. §§ 404.1525(a), 416.925(a). In order to qualified for a Listing, a claimant must show
that her impairment “meet[s] a// of the specified medical criteria.” Sullivan v. Zebley, 493 U.S.
521, 530 (1990) (emphasis added). Thus, “[a]n impairment that manifests only some of those
| criteria, no matter how severely, does not qualify.” Jd. “Plaintiff has the burden of proof at
step three to show that her impairments meet or medically equal a Listing.” Rockwood vy.
Astrue, 614 F. Supp. 2d 252, 272 (N.D.N.Y. 2009).
Here, the ALJ found that Plaintiff’ s impairments did not meet the criteria for Listing
sections 12.04 (depressive, bipolar and related disorders), or 12.06 (anxiety and obsessive
compulsive disorders). (R. 18-20). The ALJ found that Plaintiff only had: “mild difficulties in
understanding, remembering, or applying information; mild difficulties in interacting with
others; mild difficulties in concentrating, persisting, or maintaining pace; and moderate
difficulties in adapting or managing oneself.” (R. 18-19). In reaching these conclusions, the
ALJ considered Plaintiff’s subjective complaints, her activities of daily living, and the medical
opinions from Drs. Santoro and Kleinerman. (R. 19-20). Specifically, the ALJ noted that
Plaintiff lives independently, cares for her young son, manages her own money, and can cook,

12

drive, and shop without assistance. (/d.). The ALJ also refers to Dr. Santoro’s assessment that
Plaintiff had no limitations for following and understanding simple direction and instructions,
performing simple and complex tasks, maintaining attention and concentration, and learning
new tasks, and only mild limitations to making appropriate decisions, relating with others, and
dealing with stress. (R. 20). The ALJ also referred to Dr. Kleinerman’s assessment that
A) Plaintiff had mild limitations to social functioning and concentration, as well as mild
restrictions to her daily activities. (d.).
Based on that evidence, the ALJ concluded that Plaintiff had none of the “extreme” or
“marked” limitations that are required under paragraphs A and B for Listings 12.04 and 12.06.
(R. 20). As for the paragraph C criteria, the ALJ assessed that “the record does not establish
that the claimant has only marginal adjustment, that is, a minimal capacity to adapt to changes
»| in the claimant’s environment or to demands that are not already part of the claimant’s daily
life.” Ud.).
The Court finds that the ALJ’s analysis is supported by substantial evidence in the
record, namely the assessments of Drs. Santoro and Kleinerman, as well as Plaintiffs activities
of daily living. Notably, the record contains no evidence that Plaintiffs mental impairments
caused any “extreme” or “marked” limitations, or that she only maintained a minimal capacity
z| to adapt to changes in her environment.
Accordingly, the Court finds that there was substantial evidence to support the ALJ’s
conclusion that Plaintiff did not meet or equal the impairment criteria for Listings 12.04 and
12.06.! See Vargas v. Comm’r of Soc. Sec., No. 16-CV-0484, 2017 WL 2838165, at *9, 2017

' The ALJ’s analysis as to Plaintiff’s failure to qualify for a Listing is also supported by his analysis
regarding the RFC determination, which is supported by substantial evidence, as discussed below. See
Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109, 112 (2d Cir. 2010) (noting that “the absence of an
express rationale for an ALJ’s conclusions does not prevent [the court] from upholding them so long as
13

U.S. Dist. LEXIS 102235, at *8—-14 (N.D.N.Y. June 29, 2017) (finding that the ALJ properly
assessed the claimant’s eligibility for the Listings 12.04 an d12.06 where the evidence showed
he had no restrictions in activities of daily living, and only moderate difficulties in social
functioning, maintaining concentration, persistence, and pace).
2. Residual Functional Capacity Determination
“ Next, the Court will assess whether substantial evidence supports the ALJ’s
determination of Plaintiff's RFC. To determine an RFC, the ALJ is tasked with “weigh|[ing]
all of the evidence available to make an RFC finding that [is] consistent with the record as a
whole,” even if that finding does not perfectly correspond with any of the opinions of cited
medical sources. Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013). An RFC “will be
upheld when there is substantial evidence in the record to support each requirement listed in
»| the regulations.” LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990). According to
the Regulations, the RFC must “identify the individual’s functional limitations or restrictions
and assess his or her work-related abilities on a function-by-function basis, including the
functions in paragraphs (b), (c), and (d) of 20 CFR 404.1545 and 416.945.” SSR 96-8P.
Among those functions are mental abilities:
When we assess your mental abilities, we first assess the nature
and extent of your mental limitations and restrictions and then
determine your residual functional capacity for work activity on a
regular and continuing basis. A limited ability to carry out certain
mental activities, such as limitations in understanding,
remembering, and carrying out instructions, and in responding
appropriately to supervision, coworkers, and work pressures in a
work setting, may reduce your ability to do past work and other
work.
20 C.F.R. 8§ 404.1545(c), 416.945(c).

[the court] is ‘able to look to other portions of the ALJ’s decision and to clearly [identify] credible
evidence in finding that his determination was supported by substantial evidence’”’).
14

When developing an RFC, “an ALJ is entitled to rely upon the opinions of both
examining and nonexamining State agency medical consultants, since such consultants are
deemed to be qualified experts in the field of social security disability.” Baszto v. Astrue,
700 F. Supp. 2d 242, 249 (N.D.N.Y. 2010). And, evidence of certain moderate limitations
does not prohibit a claimant from performing unskilled work. See Zabala v. Astrue, 595 F.3d
4) 402, 410 (2d Cir. 2010); see also Sipe v. Astrue, 873 F. Supp. 2d 471, 481 (N.D.N.Y. 2012)
(holding that moderate limitations in “relating to instructions, concentration, [and]
attendance” are consistent with unskilled work).
Here, the ALJ’s assessment of Plaintiff's ability to perform work at all exertional
levels is supported by substantial evidence. Specifically, the ALJ assigned great weight to
Drs. Santoro and Kleinerman, who both found that Plaintiff had only “mild” difficulties with
| regard to social functioning, decision making, and her ability to concentrate and handle
work-related stress. (R. 19-20). The ALJ stated that these opinions were entitled to
“significant weight because they are consistent with one another,” “supported by [Plaintiff’ s]
largely normal mental status exams,” and were “also consistent with claimant’s [daily]
activities, and were not refuted by any treating sources.” (R. 22). The ALJ further explained
that “[Plaintiff’s] most recent treatment notes of record document coherent and logical
z| thought processes and ‘fair’ intellectual functioning, concentration, attention, insight, and
judgment.” (Ud.). The ALJ noted that “[Plaintiff’s] thought processes were coherent and
goal directed,” and “[h]Jer attention, concentration and memory skills were intact and her
insight and judgment were ‘fair.’ (/d.). The ALJ also cited evidence showing that
Plaintiff's asthma “has been successfully controlled with medication, despite [her] smoking,”

15

and that her alleged physical limitations for lifting, kneeling, and using her hands were not
supported by any medical evidence or her activities of daily living. (R. 21-22).
The opinions of Drs. Santoro and Kleinerman are also largely consistent with the
assessments of several of Plaintiff’s treating providers. For example, Plaintiff's assessment at
Central New York Services indicated that her thought process was “unremarkable,” she had
A\ “adequate” motivation and interest in the evaluation, she was “alert and responsive,” her mood
was “appropriate,” she had no problems maintaining attention and was not distractible, and her
memory, cognitive functioning, insight, and judgment were all “intact.” (R. 236-38). The
evaluator found that Plaintiff’s prognosis was “very good.” (R. 250). Similarly, treatment
notes from NP Sharpe indicate that Plaintiff was fully oriented, had linear thought processes,
and made logical associations. (R. 288). Plaintiffs mental status examinations in January and
»| February of 2014 showed that Plaintiff’s memory and concentration were noted to be “grossly
intact,” she reported that her mood was “better,” and she exhibited “good” judgment and “fair”
insight. (R. 289-90, 292).
In sum, upon careful review of the record, the Court finds that the ALJ did not err in
assigning great weight to the opinions of Drs. Santoro and Kleinerman because their
assessments are consistent with each other and the overall medical record. Thus, the RFC
was supported by substantial evidence. See Sloan v. Colvin, 24 F. Supp. 3d 315, 324-26
(W.D.N.Y. 2014) (noting that a “consultative physician’s opinion may serve as substantial
evidence,” and finding no error in ALJ’s reliance on consultative examiner’s opinion in
developing the RFC); see also Malcolm M. v. Comm’r of Soc. Sec., No. 17-CV-986, 2019
WL 187725, at *6—7, 2019 U.S. Dist. LEXIS 6330, at *17—21 (N.D.N.Y. Jan. 14, 2019)

16

(affirming the mental RFC where the ALJ relied on the opinions of consultative examiners
and the plaintiff’s activities of daily living).
3. Step Five Vocational Determination
Finally, the Court must assess whether the ALJ demonstrated that there was work in the
national economy that Plaintiff can perform. See Poupore v. Astrue, 566 F.3d 303, 306 (2d
Cir. 2009). “Work which exists in the national economy” means work existing in significant
numbers “either in the region where the individuals live or in several regions of the country.”
SSR 82-53 (internal quotation marks removed). In the ordinary case, the ALJ carries out this
fifth step of the sequential disability analysis by applying the applicable Medical- Vocational
Guidelines (“the Grids’). Jd.
In this case, the ALJ determined that Plaintiff’s impairments did not significantly limit
her ability to perform the full range of unskilled work at all exertional levels. (R. 21). The
ALJ also found that Plaintiff “retains all the basic mental abilities required to perform unskilled
work on a sustained basis.” (/d.). As discussed above, the ALJ’s RFC assessment for Plaintiff
is supported by substantial evidence in the record.
The ALJ’s step five analysis considered Plaintiff’s non-exertional limitations from the
REC, and appropriately determined that they had little to no effect on the occupational base of
| unskilled work available to Plaintiff. Accordingly, the Court finds no error in the ALJ’s step
five analysis or in the ultimate determination that Plaintiff was not disabled. John W. v.
Comm’r of Soc. Sec., No. 18-CV-177, 2019 WL 428785, at *7, 2019 U.S. Dist. LEXIS 17231,
at *22 (N.D.N.Y. Feb. 4, 2019) (affirming the ALJ’s step five assessment where he properly
applied the Grids after finding that Plaintiff’s limitations “had little to no effect on the
occupational base of unskilled work’’).

17

IV. CONCLUSION
Although Plaintiff suffers from several serious ailments, it is not for the Court to
overturn the ALJ’s decision if that decision was supported by substantial evidence in the
record. Indeed, even “[w]here there is substantial evidence to support either position, the
determination is one to be made by the factfinder.” Alston v. Sullivan, 904 F.2d 122, 126 (2d
| Cir. 1990). After careful review of the record, the Court concludes that the ALJ applied the
correct legal standards and the decision is supported by substantial evidence.
Therefore, for the foregoing reasons it is
ORDERED that the decision of the Commissioner is AFFIRMED; and it is further
ORDERED that the Clerk of the Court provide a copy of this Memorandum-Decision
and Order to the parties in accord with the Local Rules of the Northern District of New York;
| and it is further
ORDERED that the Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
Date: February 10, 2020
Syracuse, New York

Senior U.S. District Judge

18

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10312611. Public record. Not legal advice.