# Riccinto v. Commissioner of Social Security

> District Court, N.D. New York · April 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10312855

## Case

- **Court:** District Court, N.D. New York
- **Decided:** April 29, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOUNRITTHEEDR SNT DAITSETSR DICISTT ORFIC NTE CWO YUORRTK
______________________________________________________________________
DANIELLE R..1,
Plaintiff,
v. 5:19-CV-538 (ATB)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________________________________________
HOWARD D. OLINSKY, ESQ., for Plaintiff
CHRISTOPHER LEWIS POTTER, Special Asst. U.S. Attorney for Defendant
ANDREW T. BAXTER, U.S. Magistrate Judge
MEMORANDUM-DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,

pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in
accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.
Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 6).
I. PROCEDURAL HISTORY
Plaintiff filed applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) on February 18, 2016, alleging disability

beginning January 1, 2013. (Administrative Transcript (“T”) at 15, 175-85). Her
applications were denied initially on May 17, 2016. (T. 75-100). Administrative Law

1 In accordance with recent guidance from the Committee on Court Administration and
Case Management of the Judicial Conference of the United States, which was adopted by the
Northern District of New York in June 2018 in order to better protect personal and medical
information of non-governmental parties, this Memorandum-Decision and Order will identify the
Judge (“ALJ”) Robyn L. Hoffman conducted a hearing on April 9, 2018, at which
plaintiff and Vocational Expert (“VE” ) David A. Festa testified. (T. 43-74).
In a decision dated May 10, 2018, the ALJ found that plaintiff was not disabled.
(T. 12-42). The ALJ’s decision became the Commissioner’s final decision when the
Appeals Council denied plaintiff’s request for review on March 7, 2019. (T. 1-6).
II. GENERALLY APPLICABLE LAW

A. Disability Standard
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI
disability benefits must establish that she 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 plaintiff’s
physical or mental impairment or impairments [must be] of such severity
that he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be hired
if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections
404.1520 and 416.920, to evaluate disability insurance and SSI 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
saicgtinviiftiiceasn. t lIyf ltihme ictsla himis apnht yssuifcfaelr so rs umcehn atanl iambpilaitiyrm toe ndto, tbhaes tihc iwrdo irnkquiry 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 disabled without considering vocational factors such as
age, education, and work experience . . . . 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.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,
416.920. The plaintiff has the burden of establishing disability at the first four steps.
However, if the plaintiff establishes that her impairment prevents her from performing
her past work, the burden then shifts to the Commissioner to prove the final step. Id.
B. Scope of Review
In reviewing a final decision of the Commissioner, a court must determine
whether the correct legal standards were applied and whether substantial evidence
supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Talavera v. Astrue, 697 F3d 145, 151 (2d Cir. 2012). It must be “more
than a scintilla” of evidence scattered throughout the administrative record. Id.
However, this standard is a very deferential standard of review “ – even more so than
the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from
both sides, because an analysis of the substantiality of the evidence must also include
that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859 F.2d
255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its
interpretation of the administrative record for that of the Commissioner, if the record
contains substantial support for the ALJ’s decision. Id. See also Rutherford v.

Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting evidence in
the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v.
Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ explicitly
to reconcile every conflicting shred of medical testimony). However, the ALJ cannot
“‘pick and choose’ evidence in the record that supports his conclusions.” Cruz v.

Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.
09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
III. FACTS
As of the date of the April 9, 2018 administrative hearing, plaintiff was 32 years
old. (T. 50). She resided with her fourteen-year-old son and twelve-year-old daughter,
sharing a two story home with a roommate. (T. 51-52, 63, 551). Plaintiff completed the

tenth grade in regular education classes, before leaving school. (T. 52).
Plaintiff had worked at a fast food restaurant for almost fifteen years. (T. 53, 226,
231). During that period, plaintiff had worked as a cashier, food preparer, and drive-
through window attendant, and served as a trainer for new employees. (T. 53, 226).
Beginning in 2013, plaintiff was limited by her physical impairments to working three-
and-one-half-hour shifts for three days per week, and her only job responsibility was
bagging food orders for customers. (T. 54, 226, 428). Although she had to stand for the
duration of her shift, plaintiff often leaned against the counter for support. (T. 54). She
was still working at the time of the hearing.2 (T. 53-55).
Plaintiff was diagnosed with tendinitis in both hands in 2012, and reported pain

that radiated up her arms when lifting heavy objects or when engaging in repetitive hand
actions. (T. 431, 569, 1379). She also received treatment for widespread lower back,
knee, and muscle pain that increased with prolonged sitting and standing. (T. 369, 550,
1091). Plaintiff also experienced digestive difficulties and abdominal pain that had been
diagnosed as gastroparesis3 stemming from scar tissue in and around her abdomen. (T.
1385).

The ALJ’s decision sets forth the medical and other evidence of record. (T. 18-
34). Rather than reciting this evidence at the outset, the court will discuss the relevant
details below, as necessary to address the issues raised by plaintiff.
IV. THE ALJ’S DECISION
After finding that plaintiff met the insured status requirements through December
31, 2020, the ALJ found that plaintiff had not engaged in substantial gainful activity

2 The ALJ concluded that this part-time employment did not rise to the level of
substantial gainful activity during the relevant period, but considered this work activity as part of
the RFC determination. (T. 18).
3 Gastroparesis is a disease that prevents the stomach from emptying itself of food in a
normal fashion, and is often the result of nerve damage. https://my.clevelandclinic.org/health/
diseases/15522-gastroparesis
since her alleged onset date of February 1, 2012. (T. 18). Next, the ALJ found that
plaintiff had the following severe impairments at step two of the sequential evaluation:
gastroparesis; mild scoliosis with chronic low back pain; bilateral tendonitis of both
hands; and mild bilateral carpal tunnel syndrome. (T. 18- 21). At the third step, the ALJ
determined that plaintiff’s impairments or combination thereof did not meet or
medically equal the criteria of any listed impairments in Appendix 1 to 20 C.F.R. Part

404, Subpart P. (T. 21-22).
The ALJ found at step four of the analysis that plaintiff could physically perform
the full range of light work. (T. 22-34). In making the RFC determination, the ALJ
stated that she considered all of the plaintiff’s symptoms, and the extent to which those
symptoms could “reasonably be accepted as consistent with the objective medical
evidence and other evidence, based on the requirements of 20 C.F.R. 404.1529 and

416.929” and Social Security Rulings (“SSR”) 16-3p. (T. 22-23). Finally, the ALJ
stated that she considered opinion evidence pursuant to 20 C.F.R. §§ 404.1527 and
416.927. (T. 23).
The ALJ also found that plaintiff’s medically determinable impairments could
reasonably be expected to cause some of her alleged symptoms, but that plaintiff’s
statements regarding the intensity, persistence, and limiting effects of those symptoms

were not entirely consistent with the medical evidence and other evidence in the record.
(T. 23). The ALJ then determined that plaintiff had no past relevant work, because her
earnings record and evidence of part-time employment did not meet the threshold levels
for substantial gainful activity during the relevant time period. (T. 34). However,
“considering the [plaintiff’]’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
[plaintiff] can perform.” (T. 34-35). Accordingly, the ALJ determined that plaintiff was
not disabled from the alleged onset date of February 1, 2012, through the date of the
ALJ’s decision. (T. 35).
V. ISSUES IN CONTENTION

Plaintiff raises the following arguments:
1. Plaintiff’s case should be remanded because it was adjudicated by an
unconstitutionally appointed ALJ. (Pl.’s Br. at 22-25) (Dkt. No. 9).
2. The ALJ improperly weighed the evidence, particularly that related to
plaintiff’s upper extremity limitations. (Pl.’s Br. at 15-19).
3. The ALJ failed to adequately assess plaintiff’s subjective complaints.
(Pl.’s Br. at 19-22).
Defendant argues that Plaintiff failed to timely raise her Appointments Clause argument,
and that the Commissioner’s determination should be affirmed because it was supported
by substantial evidence. (Def.’s Br. at 3-18) (Dkt. No. 11). For the following reasons,
this court agrees with defendant and will dismiss the complaint.
DISCUSSION
VI. APPOINTMENT OF ALJ

A. Legal Standards
Under the Appointments Clause, Congress may vest appointment of “inferior
Officers . . . in the President alone, in the Courts of Law, or in the Heads of
Departments.”) U.S. Const. Art. II, § 2, cl. 2. In Lucia v. Securities & Exch. Comm’n,
the Supreme Court held that ALJs for the Securities and Exchange Commission
(“SEC”) are “‘[o]fficers of the United States,’ subject to the Appointments Clause,” and
that the ALJ at issue had been improperly appointed by staff members, instead of the
head of the department. Lucia, ___ U.S. ___, 138 S. Ct. 2044, 2051 (2018). Upon a

judicial determination that an ALJ who presided over an administrative hearing had not
been appointed in compliance with the Appointments Clause, the appropriate remedy
was a new hearing by a different, constitutionally-appointed ALJ. Id. at 2055. District

Courts have since applied Lucia to Social Security Administration (“SSA”) ALJs. See,
e.g., Williams v. Berryhill, No. 17-CV-1660, 2019 Wl 1271647, at *6 (E.D.N.Y. Mar.
19, 2019); Bonilla-Bukhari v. Berryhill, 357 F. Supp. 3d 341, 349-50 (S.D.N.Y. 2019).
In Lucia, the Supreme Court specifically stated that one is only entitled to relief if

the challenge to the constitutional validity of the appointment of the adjudicating officer
is timely, but Lucia had raised that issue before the SEC. Lucia, 138 S. Ct. at 2055
(quoting Ryder v. United States, 515 U.S. 177, 182-83 (1995) (emphasis added)). The

Second Circuit has not yet addressed whether the failure to raise an Appointments
Clause challenge to ALJs during the SSA administrative process precludes pursuing that
argument in subsequent judicial proceedings, although it recently ruled on that issue

with respect to SEC ALJs. See, Gonnella v. United States Sec. & Exch. Comm’n, 954
F.3d 536, 543-46 (2d Cir. Apr. 2, 2020) (“a litigant who does not object to the
constitutionality of an ALJ at any point during . . . SEC proceedings forfeits that
challenge”).
B. Application
Plaintiff contends that the ALJ did not exercise lawful authority denying her
claim, because the ALJ was an inferior officer who was not properly appointed pursuant

to the Appointments Clause of the United States Constitution.4 (Pl.’s Br. at 25-26.)
Accordingly, plaintiff argues that this case must be remanded to a different ALJ who
has been constitutionally appointed. (Pl.’s Br. at 26-27.) Defendant counters that

plaintiff forfeited her Appointments Clause claim because she failed to assert this
challenge during the administrative proceedings.5 (Def. Br. at 10-15).
Recently, the Third Circuit Court of Appeals adopted a view favorable to

plaintiff. See Cirko v. Comm’r of Soc. Sec., 948 F.3d 148, 152 (3d Cir. Jan. 23, 2020).6
In Cirko, as in this case, the plaintiffs first raised an Appointments Clause challenge
before the district court. Id. In excusing the plaintiff’s failure to challenge the ALJ’s

4 Plaintiff’s brief does not address the details of ALJ Hoffmann’s appointment, but cites
the Commissioner’s July 16, 2018 corrective approval of all SSA ALJ appointments as proof that
her original appointment was invalid. (Pl.’s Br. at 25).
5 For purposes of this proceeding, Defendant does not dispute that SSA ALJs are inferior
officers, but notes that SSA’s Acting Commissioner ratified the appointment of SSA ALJs and
Appeals Council Administrative Appeals Judges (“AAJ”) and approved their appointments as
her own on July 16, 2018, in order to address any Appointments Clause questions involving SSA
proceedings raised by the Lucia decision. 84 Fed. Reg. 9582-02 (Mar. 15, 2019).
6 Plaintiff’s brief, which was filed prior to the Cirko decision, relies in part upon Bizarre
v. Berryhill, 364 F. Supp. 3d 418 (M.D. Pa. 2019). Bizarre was part of the consolidated appeal
that the Third Circuit decided in Cirko. Cirko, 948 F.3d at 152. Appeals addressing the
application of Lucia to SSA ALJs are also pending in the Fourth, Eighth, and Eleventh Circuits,
but had not been decided, as of the time of submission of this decision.
appointment during the administrative process, the Third Circuit determined that there
was no statutory or regulatory issue exhaustion requirement that governs SSA
proceedings. Id. at 153. Assessing three factors–the nature of the claim, the
characteristics of the SSA review, and the interests involved–the Third Circuit held that

timely exhaustion of an Appointments Clause challenge was not required in the SSA
context. Id. at 153.
Cirko and other cases endorsing an exception to any issue exhaustion requirement

in SSA proceedings first look to two cases that preceded Lucia. In Freytag v. Comm’r
of Internal Revenue, 501 U.S. 868, 879-80 (1991), the Supreme Court held that
Appointments Clause challenges were deemed to be “in the category of

nonjurisdictional structural constitutional objections that could be considered on appeal
whether or not they were ruled upon below.” Id. The plaintiff in Freytag was
challenging the appointment of a Special Trial Court Judge in the Tax Court. Id. The
Court reasoned that it was “‘faced with a constitutional challenge that is neither

frivolous nor disingenuous,’” because “[t]he alleged defect in the appointment of the
Special Trial Judge goes to the validity of the Tax Court proceeding that is the basis for
this litigation.” Id. at 879. The Court concluded that despite “disruption to sound

appellate process entailed by entertaining objections not raised below . . . this is one of
those rare cases in which we should exercise our discretion to hear petitioners’
challenge to the constitutional authority of the Special Trial Judge.” Id.
years after Freytag. In Ryder, the Court found that the challenge to the constitutional
appointment of civilian judges to the Court of Military Review must be “timely.”
Ryder, 515 U.S. at 182-83. The Lucia court also applied a timeliness requirement in the

context of Securities and Exchange Commission proceedings. Lucia, 138 S.Ct. at 2055.
Recognizing that these precedents all involved different agencies and different
procedural backgrounds, the Third Circuit found that exhaustion was generally

inappropriate “where a claim serves to vindicate constitutional claims like
Appointments Clause challenges, which implicate both individual constitutional rights
and the structural imperative of separation of powers.” Cirko, 948 F. 3d at 154.7 It
noted the Supreme Court’s holding in Sims v. Apfel, 530 U.S. 103, 107 (2000), that

exhaustion of issues before the SSA Appeals Council was not required to obtain judicial
relief, and observed that the “rationales driving Sims generally apply to ALJs no less
than AAJs . . . .” Id. at 156. Echoing the plurality opinion in Sims, the Cirko decision

emphasized that ALJ hearings are “inquisitorial and driven by the agency rather that the
claimant,” and that the governing regulations did not have an express exhaustion
requirement. Id. at 155-56. Finally, the Third Circuit found that the individual interests

7 The Second Circuit would appear to have a different view on this general issue than the
Third Circuit panel in Cirko. See Gonnella, 954 F.3d at 543 (“‘[O]rderly procedure and good
administration require that objections to the proceedings of an administrative agency be made
while [the agency] has opportunity for correction in order to raise issues reviewable by the
courts.’” . . . Constitutional claims are no different.”) (citations omitted).
156-57. Unlike an adversarial proceeding, the Commissioner has the primary
responsibility for identifying and developing the issues, and the claimant is not required
to develop facts or make arguments. Id. An exhaustion requirement would therefore

impose an “unprecedented burden” on SSA claimants. Id. at 156. In contrast, the Cirko
decision described the SSA Commissioner’s interest in requiring exhaustion as low,
because constitutional questions are outside the agency’s expertise and the agency was

incapable of providing effective relief to an applicant who raised concerns about the
Appointments Clause. Id. at 158.
This court has carefully reviewed the Third Circuit’s ruling in Cirko, as well as
those cases within the Second Circuit that have found its reasoning “persuasive.” See

Jenny R. v. Comm’r of Soc. Sec., No. 5:18-CV-1451 (DEP), 2020 WL 1282482, at *5
(N.D.N.Y. Mar. 11, 2020); Suarez v. Saul, No. 3:19-CV-173 (JAM), 2020 WL 913809,
at *3 (D. Conn. Feb. 26, 2020). Ultimately, this court finds that plaintiff was still

required to raise the Appointments Clause issue at the agency level prior to raising it in
federal court, particularly in light of the long-standing requirement, reaffirmed in Lucia,
that challenges to the constitutional appointment of a judge must be timely. This ruling

is consistent with the “vast majority” of district courts that have considered the
F. Supp. 3d at 351 (summarizing cases in this Circuit following Lucia prior to Cirko);
Herring v. Saul, No. C18-120, 2020 WL 1528163, at *10 (N.D. Iowa, March 31, 2020)
(listing cases outside the Third Circuit that declined to follow Cirko).

In Lucia, the Court specifically stated that one is only entitled to relief if the
challenge to the constitutional validity of the appointment of the adjudicating officer is
timely. Lucia, 138 S. Ct. at 2055 (quoting Ryder v. United States, 515 U.S. at 182-83)).

The Supreme Court did not define the limits of timeliness in Lucia, but found that the
challenge to the appointment of an ALJ for the Securities and Exchange Commission
was timely because it had first been raised to the Commission during the administrative
appeal. Id. The Second Circuit recently construed Lucia’s timeliness requirement to

hold that a litigant before the SEC must raise an Appointments Clause objection to an
ALJ during the administrative proceedings or forfeit the right to pursue that issue at the
district court level. Gonnella, 954 F.3d at 544. A similar standard should be, and

typically has been, applied in the context of Social Security proceedings. See
Demoranville v. Saul, No. 3:18-CV-1930, 2019 WL 6712056, at *1 (D. Conn. Dec. 10,
2019) (“Social Security claimants are entitled to a Lucia rehearing, only if they raised

8 This finding is also consistent with my previous decision, Kevin F. v. Comm’r of Soc.
Sec., No. 5:18-CV-1454 (ATB), 2020 WL 247323 (N.D.N.Y. Jan. 16, 2020). Although it
preceded Cirko, my decision considered Bizarre and the minority of district court cases that had
excused a plaintiff’s failure to exhaust with regard to the Appointments Clause in SSA
proceedings. Kevin F., 2020 WL 247323, at *5-6.
Johnson v. Berryhill, No. 3:17-CV-165, 2019 WL 1430242, at *14 (D. Conn. Mar. 29,
2019) (citing cases)).
Although the SSA statutes and regulations do not include an express exhaustion

requirement, the regulations do impose certain requirements on claimants appearing at
the administrative level, including the requirement that any objections to the ALJ who
will conduct the hearing “must” be raised “at your earliest opportunity.” 20 C.F.R.

404.940. Plaintiff was represented by counsel before the ALJ and before the Appeals
Council, and had an opportunity to raise any concerns with respect to the Appointments
Clause at the administrative level. (T. 45). The administrative hearing was conducted
on April 9, 2018; the ALJ’s decision was issued on May 10, 2018; on June 1, 2018,

plaintiff’s attorney was granted a 25-day extension to submit further information to the
Appeals Council (T. 7-8); and the decision of the Appeals Council was not issued until
March 7, 2019. Freytag was decided in 1991 and Ryder was decided in 1995–both well

before the administrative hearing in this case–and Lucia was argued on April 23, 2018
and decided on June 21, 2018–while plaintiff’s counsel still had time to supplement his
submission to the Appeals Council.9 Kevin F. v. Comm’r of Soc. Sec., No.

9 The letter from the Appeals Council said that, after June 26, 2018, it would not allow
more time to send information “except for very good reason.” (T. 7). Presumably, a recent and
relevant ruling of the Supreme Court would have constituted “very good reason” for plaintiff’s
attorney to raise the Appointments Clause issue before the Appeals Council made its ruling in
2019, even if counsel did not immediately learn of the issuance of the Lucia decision.
counsel could have raised the Appointments Clause argument before the agency because
the key precedents on which Lucia relied were decided well before any administrative
proceedings, and the decision in Lucia itself was issued before the Appeals Council

ruled).
Requiring exhaustion at the administrative level prevents a represented party from
withholding an objection for strategic reasons. Bonilla-Bukhari, quoting other cases,

further explains the benefit of requiring a timely administrative challenge under the
Appointments Clause:
Ryder’s rule that relief is due for “timely” challenges was created as an
incentive “to raise Appointments Clause challenges with respect to
questionable judicial appointments.” Ryder, 515 U.S. at 182-83 . . . .
Regularly permitting unsuccessful claimants to raise Appointments Clause
challenges for the first time on judicial review, especially when the
arguments underlying those challenges were available at the administrative
level, would “encourage the practice of ‘sandbagging’: suggesting or
permitting, for strategic reasons, that the [adjudicative entity] pursue a
certain course, and later - if the outcome is unfavorable - claiming that the
course followed was reversible error.” Freytag, 501 U.S. at 895 . . .
(Scalia, J., concurring in part and concurring in the judgment).

Bonilla-Bukhari, 357 F. Supp. 3d at 351-52 (quoting Abbington v. Berryhill, No.
1:17-CV-552, 2018 WL 6571208, at *7 (S.D. Ala. Dec. 13, 2018)).
Consistent with that approach, the SSA regulations anticipate that all disputed
issues, including constitutional issues be raised at the administrative level. See e.g. 20
C.F.R. § 404.933(a)(2), (3) (a claimant should submit, in a written request to the ALJ,
statement of additional evidence to be submitted”); § 404.924(d) (providing for an
expedited appeals process when a claimant alleges that “the only factor preventing a
favorable determination or decision is a provision in the law that you believe is

unconstitutional.”). While the issue in the instant case is not a provision “in the law,”
clearly, the SSA foresees that constitutional challenges may be made to the agency.10
Even if the individual ALJ was unable correct the constitutional defect on her

own, other administrative relief may have been available to plaintiff if the issue had
been timely raised. For example, the Commissioner could have appointed another ALJ
to hear the matter, or the Appeals Council could have vacated the improperly appointed
ALJ’s decision. See Gagliardi v. Soc. Sec. Admin., No. 18-CV-62106, 2020 WL

966595, at *4 (S.D. Fla. Feb. 28, 2020). Indeed, the Commissioner published a Social

10 The Third Circuit panel in Cirko acknowledged that the Supreme Court in Sims v. Apfel
did not address the question of whether issue exhaustion before an SSA ALJ, as opposed to an
AAJ, should be required. Cirko, 948 F.3d at 115 (citing Sims, 530 U.S. at 107). The Cirko panel
also recognized that the concurring opinion of Justice O’Connor in Sims, which joined only parts
of the plurality opinion, controlled the precedential impact of that decision. Cirko, 948 F.3d at
155 n.4. Justice O’Connor concluded that a claimant should not be required to explicitly raise
particular issues before the SSA Appeals Council, in order to be able to pursue those issues
before a district court, primarily because the SSA regulations and procedures affirmatively
suggested that specific issues need not be raised before the Appeals Council. 530 U.S. at 113.
She did not join Part II-B of the plurality opinion, which focused on the non-adversarial nature
of Social Security proceedings as a second reasons for not requiring issue exhaustion before the
Appeals Council. As noted above, the SSA regulations, while not having an explicit exhaustion
requirement, require the claimant to raise all disputed issues before the ALJ and to raise any
objection to the assigned ALJ at the claimant’s “earliest opportunity.” So, I respectfully disagree
with the Cirko panel that the Sims precedent supports not requiring issue exhaustion before the
ALJ generally and before the ALJ or the Appeals Council with respect to the issue of the
disqualification of the assigned ALJ.
Lucia, effective March 15, 2019. See SSR 19-1p, 84 Fed. Reg. 9582-02, 9583 (Mar. 15,
2019). SSR 19-1 provides that, if a claimant has raised a “timely” challenge to the
ALJ’s appointment by presenting the claim to either the ALJ or to the Appeals Council,

the agency would provide for additional administrative review of the claim as required
by Lucia. Id.
Notwithstanding the reasoning of the Third Circuit panel in Cirko, this court finds

that the Commissioner and the public have a very strong interest in having
Appointments Clause issues raised by counsel during the administrative process. As
explained in SSR-19, the SSA “receive[s] millions of applications for benefits each
year,” and the SSA “must make decisions efficiently in order to ensure that the system

continues to work and serve the American people.” The SSA “employ[s] more ALJs
than all other Federal agencies combined,” issues “hundreds of thousands of decisions
each year,” and the impact of Lucia “has the potential to significantly affect” the SSA’s

hearings and appeals process. Id. Even the Third Circuit, in downplaying the impact of
its Cirko decision, recognized that allowing plaintiffs to raise an Appointments Clause
argument for the first time in federal court had the potential to impact hundreds of cases

now pending in the district courts. See Cirko, 948 F.3d at 159.
Moreover, while the Supreme Court has long recognized the interest in
administrative litigants in the proper appointment of inferior officers under the
purpose other than securing the tactical advantage of having a second “bite at the apple”
after an unfavorable administrative decision. Plaintiff is seeking to have a second
hearing before a different ALJ, who, like ALJ Hoffman (who presided at plaintiff’s

initial hearing) and all of the other SSA ALJs, was not properly appointed at the time of
his hearing, but is now, based on the Acting Commissioner’s post hoc ratification of the
appointment of all of the agency’s ALJs and AAJs. The petitioner in Lucia objected to

having his rehearing, on remand, before another SEC ALJ whose prior, invalid
appointment, had been remedied by subsequent ratification by the SEC. Lucia, 138 S.
Ct. at 2055 n.6. While not ruling on the objection, the majority implicitly recognized
the limitations of such a remedy, noting: “The Commission has not suggested that it

intends to assign Lucia’s case on remand to an ALJ whose claim to authority rests on
the ratification order.” In this case, given the invalid appointment of all of the SSA’s
ALJs and AAJs, there is no alternative to a new hearing before an ALJ whose

appointment was affected by the same issues as ALJ Hoffman. Thus, this court
respectfully disagrees with the Cirko panel in how it weighed the respective interests of
the Social Security Administration and the plaintiff in deciding whether to require issue

exhaustion in the particular context of disability appeals before that agency.
Based on the analysis above, this court concludes that this is not one of the “rare
cases” described by Freytag where a court should excuse plaintiff’s failure to raise an
not entitled to remand based upon an alleged violation of the Appointments Clause.
This court will now consider whether the ALJ’s determination was supported by
substantial evidence.

VII. RFC/WEIGHING EVIDENCE
A. Legal Standards
1. RFC

RFC is “what [the] individual can still do despite his or her limitations.
Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis. . . .” A “regular
and continuing basis” means eight hours a day, for five days a week, or an equivalent

work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2
(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)
(quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v. Berryhill, No. 5:17-CV-

00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018); Tankisi v.
Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.
Supp. 3d 349, 361 (N.D.N.Y. 2016).

In rendering an RFC determination, the ALJ must consider objective medical
facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s
subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R. §§
(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.
Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL 587459, at *8 (N.D.N.Y. Feb 13, 2019);
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An ALJ must specify the functions

plaintiff is capable of performing, and may not simply make conclusory statements
regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241, 267 (N.D.N.Y.
2010); Martone v. Apfel, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler, 728 F.2d

582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183, Stephens v. Colvin, 200
F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v. Comm’r of Soc. Sec., 307 F. Supp.
2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must also include a narrative
discussion, describing how the evidence supports the ALJ’s conclusions, citing specific

medical facts, and non-medical evidence. Natashia R. v. Berryhill, No. 3:17-CV-01266
(TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing SSR 96-8p, 1996
WL 374184, at *7).

2. Weighing Evidence/Treating Physician
In making a determination, the ALJ weighs all the evidence of record and
carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL

374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues
are not “medical issues,” but are “administrative findings.” The responsibility for
determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL
listed impairment; the plaintiff’s RFC; how the vocational factors apply; and whether
the plaintiff is “disabled” under the Act. Id.
In evaluating medical opinions on issues that are reserved to the Commissioner,

the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The
ALJ must clearly state the legal rules that he applies and the weight that he accords the
evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL 3776382, at *2

(S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324, 2012 WL
3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).
A treating source’s opinion on the nature and severity of a claimant’s impairments
is entitled to controlling weight where it is “well-supported by medically acceptable

clinical and laboratory diagnostic techniques” and “not inconsistent with the other
substantial evidence” of the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). This is
known as the “treating physician rule.” If an ALJ decides not to give the treating

source’s records controlling weight, then he must explicitly consider four factors: “(1)
the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical
evidence supporting the opinion; (3) the consistency of the opinion with the remaining

medical evidence; and (4) whether the physician is a specialist.” Estrella v. Berryhill,
925 F.3d 90, 95-96 (2d Cir. 2019) (quoting Burgess v. Astrue, 537 F. 3d 117, 120 (2d
Cir. 2008)). Should an ALJ assign less than controlling weight to a treating physician’s
Estrella, 925 F.3d at 96. It is impossible to conclude that the error is harmless unless a
“searching review of the record . . . assures us that the substance of the treating
physician rule was not traversed.” Id.

B. Application
As noted above, the ALJ found that plaintiff could perform the full range of light
work. (T. 23). Plaintiff argues that the ALJ did not properly weigh the medical

evidence regarding plaintiff’s physical impairments, particularly the evidence regarding
plaintiff’s difficulty using her hands. (Pl.’s Br. at 19-20). This court disagrees, and
concludes that the ALJ’s RFC assessment of plaintiff’s physical impairments was
supported by substantial evidence.

For example, the ALJ considered the multiple medical opinions provided by
plaintiff’s treating gastroenterologist, Dr. Sara Mitchell. (T. 29-30). The ALJ assigned
“some weight” to Dr. Mitchell’s March 29, 2016 opinion that plaintiff would “continue

to need restriction for bending and heavy lifting due to [a] chronic medical condition.”
(T. 29, 1383). However, she assigned “no weight” to Dr. Mitchell’s subsequent, more
restrictive opinions dated June 21, 2016, November 19, 2016, and January 23, 2018 due

to a lack of support in the record evidence. (T. 29-30, 559-62, 1384).
The ALJ identified several reasons for discounting these treating source opinions.
First, the restrictions were based on “diagnoses outside of Dr. Mitchell’s area of
disorders,” and a need for a three-day work week due to plaintiff’s reported back pain.
(T. 29-30, 1384). These restrictions were also inconsistent with Dr. Mitchell’s own
notes, related to plaintiff’s digestive impairments, that described “mild” or

“intermittent” symptoms following treatment. (T. 31, 500, 542, 551, 559). The ALJ
also noted that the manipulative and postural limitations described by Dr. Mitchell were
not supported by the examination notes from other medical sources who were more

involved in the treatment of plaintiff’s back and joint pain, and were inconsistent with
the consultative examiner’s reports. (T. 551-52, 563, 614, 617).
The ALJ provided similar reasons for assigning “no weight” to the opinions of
two other treating sources–Dr. David J. Murphy, Jr., and Physician’s Assistant (“PA”)

Robert C. Richman. (T. 30, 565-66, 1385). On September 25, 2017, Dr. Murphy,
plaintiff’s orthopedic surgeon, opined that plaintiff could only lift, push, and pull
between five to ten pounds bilaterally due to numbness and pain in her hands. (T. 566).

On December 7, 2017, PA Richman opined that plaintiff could push, pull or lift no more
than five pounds, and could not perform any repetitive hand motions. (T. 1385). He
also opined that plaintiff could not bend or stoop. (Id.) The ALJ discounted these

opinions because they were inconsistent with the results of physical examinations that
plaintiff’s carpal tunnel syndrome was mild, and that her abilities had improved
following surgery. (T. 30, 565). The ALJ also cited treatment notes that characterized
or within normal limits. (T. 31-32, 447, 457, 630-31, 1154).
The ALJ assigned “some,” but less than great weight to the treating source
opinions of Dr. Raymond Alcuri and PA Carla Vavala. (T. 29, 557-58, 1154). On June

20, 2016, PA Vavala opined that plaintiff’s mild back pain would not cause her to be
off-task for extended periods of time, and would not otherwise interfere with her ability
to work an ordinary work day. (T. 557). In September 1, 2016 treatment notes, Dr.

Alcuri described plaintiff’s lumber spine MRI results as normal. His recommended
course of treatment for plaintiff’s back pain was home exercise, participation in
behavioral health classes, and quitting smoking. (T. 1154).
Dr. Kalyani Ganesh, who performed consultative examinations of plaintiff on

May 30, 2014 and April 22, 2016, reached similar conclusions as Dr. Alcuri and PA
Vavala. (T. 550-53, 1379-82). During the May 2014 examination, plaintiff
demonstrated full flexion, extension, lateral flexion bilaterally, and full rotary

movement bilaterally in the cervical and lumbar spine, as well as full range of motion in
the shoulders, elbows, forearms, and wrists bilaterally. (T. 1381). She had intact hand
and finger dexterity, full strength in the upper and lower extremities, and full grip

strength. (Id.) Based on this examination, Dr. Ganesh opined that plaintiff had “mild to
minimal” limitations in lifting, carrying, pushing, or pulling, but no limitations with
regard to sitting, standing, and walking. (Id.). Plaintiff’s April 22, 2016 consultative
flexion in the lumbar spine. (T. 552). Dr. Ganesh did not identify any lifting or other
physical restrictions in her 2016 consultative examination report. (T. 553). In assessing
a claimant’s RFC, an ALJ is entitled to rely on opinions from medical consultants

because they are qualified experts in the field of social security disability. 20 C.F.R. §
404.1527(e); see, e.g., Cobb v. Comm’r of Soc. Sec., No. 5:13-CV-0591 (LEK/TWD),
2014 WL 4437566, at *6 (N.D.N.Y. Sept. 9, 2014) (“[T]he report of a consultative

examiner may constitute substantial evidence to support an ALJ’s decision.” (quoting
Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983)); Heaman v. Berryhill, 765 F.
App’x 498, 500 (2d Cir. 2019) (rejecting plaintiff’s argument that the ALJ’s RFC
determination was not supported by substantial evidence because the ALJ relied on the

opinions of the consultative examiner and the medical expert, which contradicted the
opinions of treating sources, but were otherwise supported by the record).
It is within the purview of the ALJ to review all the evidence before him, resolve

evidentiary conflicts, and make a determination consistent with the evidence as a whole,
which the ALJ did here. See, e.g., Bliss v. Colvin, 13-CV-1086 (GLS/CFH), 2015 WL
457643, at *7 (N.D.N.Y., Feb. 3, 2015) (“It is the ALJ’s sole responsibility to weigh all

medical evidence and resolve material conflicts where sufficient evidence provides for
such.”) (citing, inter alia, Micheli v. Astrue, 501 F. App’x 26, 29 (2d Cir.2012).
Although the ALJ described the consultative reports as generally supportive of
with regard to lifting and carrying. This decision to discount specific portions of the
consultative opinion was within her discretion. See Walker v. Colvin, No. 3:15-CV-465
(CFH), 2016 WL 4768806, at *10 (N.D.N.Y. Sept. 13, 2016) (“[A]n ALJ may properly

‘credit those portions of a consultative examiner’s opinion which the ALJ finds
supported by substantial evidence of record and reject portions which are not so
supported.’ This is true even where the ALJ relies on a consultative examiner’s

examination findings, but rejects the consultative examiner’s medical source statement .
. . .”).
VIII. Evaluation of Symptoms
A. Legal Standards

In evaluating a plaintiff’s RFC for work in the national economy, the ALJ must
take the plaintiff’s reports of pain and other symptoms into account. Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010). The ALJ must “‘carefully consider’” all the evidence

presented by claimants regarding their symptoms, which fall into seven relevant factors
including ‘daily activities’ and the ‘location, duration, frequency, and intensity of [their]
pain or other symptoms.’” Del Carmen Fernandez v. Berryhill, No. 18-CV-326, 2019

WL 667743, at *9 (S.D.N.Y. Feb. 19, 2019) (citing 20 C.F.R. § 404.1529(c)(3); Social
Security Ruling (SSR) 16-3p, Titles II and XVI: Evaluation of Symptoms in Disability
Claims, 81 FR 14166-01 at 14169-70, 2016 WL 1020935 (Mar. 16, 2016)).
regulatory policy” because the regulations themselves do not use that term. SSR 16-3p,
81 FR at 14167. Instead, symptom evaluation tracks the language of the regulations.11
The evaluation of symptoms involves a two-step process. First, the ALJ must

determine, based upon the objective medical evidence, whether the medical impairments
“could reasonably be expected to produce the pain or other symptoms alleged . . . .” 20
C.F.R. §§ 404.1529(a), (b); 416.929(a), (b).

If so, at the second step, the ALJ must consider “‘the extent to which [the
claimant’s] alleged functional limitations and restrictions due to pain or other symptoms
can reasonably be accepted as consistent with the [objective medical evidence] and
other evidence to decide how [the claimant’s] symptoms affect [her] ability to work.’”

Barry v. Colvin, 606 F. App’x 621, 623 (2d Cir. 2015) (citing inter alia 20 C.F.R. §
404.1529(a); Genier v. Astrue, 606 F.3d at 49) (alterations in original).12
If the objective medical evidence does not substantiate the claimant’s symptoms,

the ALJ must consider the other evidence. Cichocki v. Astrue, 534 F. App’x 71, 76 (2d
Cir. 2013) (citing superceded SSR 96-7p). The ALJ must assess the claimant’s

11 The standard for evaluating subjective symptoms has not changed in the regulations. Rather,
the term “credibility” is no longer used, and SSR 16-3p makes it clear that the evaluation of the
claimant’s symptoms is not “an evaluation of the claimant’s character.” 81 FR at 14167. The court
will remain consistent with the terms as used by the Commissioner.
12 The court in Barry also cited SSR 96–7p, 1996 WL 374186, at *2 (July 2, 1996) which was
superceded by SSR 16-3p. As stated above, the factors considered are the same under both rulings.
The 2016 ruling has removed the emphasis on “credibility.”
related factors: (1) claimant’s daily activities; (2) location, duration, frequency, and
intensity of claimant’s symptoms; (3) precipitating and aggravating factors; (4) type,
dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5)

other treatment received to relieve symptoms; (6) any measures taken by the claimant to
relieve symptoms; and (7) any other factors concerning claimant’s functional limitations
and restrictions due to symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

The ALJ must provide specific reasons for the determination. Cichocki v. Astrue,
534 F. App’x at 76. However, the failure to specifically reference a particular relevant
factor does not undermine the ALJ’s assessment as long as there is substantial evidence
supporting the determination. Id. See also Del Carmen Fernandez v. Berryhill, 2019

WL 667743 at *11 (citing Rousey v. Comm’r of Soc. Sec., 285 F. Supp. 3d 723, 744
(S.D.N.Y. 2018)). “[R]emand is not required where ‘the evidence of record allows the
court to glean the rationale of an ALJ’s decision.’” Cichocki v. Astrue, 534 F. App’x at

76 (quoting Mongeur v. Heckler, 722 F.2d at 1040).
B. Application
Plaintiff argues that the ALJ failed to properly consider her subjective complaints

because her assessment was based upon “an insufficiently-developed analysis of
activities of daily living” that failed to account for changes in plaintiff’s condition.
However, the ALJ’s decision demonstrates consideration of plaintiff’s symptoms in
testimony, and statements made to her health care professionals regarding her symptoms
and activities, with attention given to both physical and mental limitations.13 (T. 31-32).
In particular, the ALJ reviewed the evidence related to plaintiff’s hands, wrists, and

arms, and found no limitations on plaintiff’s ability to reach, handle, finger, feel, and
use her upper extremities, beyond the lifting limitations associated with light work. (T.
31).

A review of the evidence of record supports the ALJ’s findings. Plaintiff’s
allegations that her pain significantly limited her ability to lift, reach, handle, and
imposed significant postural limitations are inconsistent with treatment notes indicating
that “there was no reason” why her pain would interfere with her ability to work. (T.

1154). The ALJ also considered plaintiff’s statements regarding her daily activities,
which included climbing stairs, driving, caring for children and pets, shopping, cooking,
and cleaning on a regular basis. (T. 30-31, 51-55, 213-216). See, e.g., Herrington v.

Berryhill, No. 3:18-CV-315, 2019 WL 1091385, at *7 (D. Conn. Mar. 8, 2019)
(activities of daily living, including childcare, are an appropriate factor for an ALJ to
consider when assessing claimant’s claimed symptoms and limitations) (collecting

cases); Tricarico v. Colvin, 681 F. App’x 98, 101 (2d Cir. 2017) (affirming an ALJ’s
13 Plaintiff alleged that she suffered from mental impairments including depression,
attention-deficit disorder, and obsessive compulsive disorder, and the ALJ considered those
allegations at step two and as part of her RFC analysis. (T. 20-21, 25). Plaintiff has not directly
challenged those portions of the ALJ’s decision.
physician based on the opinion of a consultative examiner that plaintiff could perform
sedentary work with additional limitations, and the evidence that plaintiff was capable
of various activities of daily living, including childcare).

The ALJ also noted record evidence that plaintiff’s hand pain improved following
surgery, and that her treating sources opted for a conservative treatment that included
intermittent physical therapy and use of a splint on her wrist. (T. 31, 565-66, 619, 1246-

47) With regard to back pain, the ALJ cited evidence that regular cortisone injections
allowed plaintiff to sit, stand, and walk for longer periods of time without pain. (T. 24,
1093). The ALJ undertook a similar analysis with regard to the impact of plaintiff’s
digestive issues, and noted that plaintiff’s complaints “improved with modification of

her diet, vitamin supplements, and use of various combinations of oral medications.” (T.
23).
During her hearing, plaintiff testified that she was frequently allowed to lean or

support herself against a metal “slab” or counter for the duration of her shift due to pain,
despite it being against the formal workplace rules. (T. 54-55). In her decision, the ALJ
commented on the lack of any disciplinary action arising from this continuous violation

of workplace policy. (T. 26). Plaintiff contends this showed the ALJ “searching for an
inconsistency to use to bolster her decision.” (Pl.’s Br. at 24). This court disagrees, and
concludes that the ALJ raised a legitimate inquiry into the frequency of plaintiff’s need
for a job that required plaintiff to be near the front counter, in view of customers. (T.
54).
Plaintiff also objects to the ALJ’s conclusion that plaintiff’s continued use of

tobacco, despite repeated warnings from her physicians to quit, suggested that her
digestive symptoms were not as severe as she alleged. (T. 24, 546, 551). Cases have
found that there are numerous reasons why an individual may continue smoking or other

addictive behavior despite the health risks, thus making it an “unreliable” basis to assess
credibility. See Goff v. Astrue, 993 F. Supp. 2d 114, 128 (N.D.N.Y. 2012). However,
the ALJ’s reliance here was minimal, and harmless error in light of the numerous other
factors that the ALJ considered in reference to plaintiff’s digestive and other

impairments. (T. 23-24, 27).
It is the province of the ALJ to resolve genuine conflicts in the record. Veino,
312 F.3d at 588. However, the Commissioner need not “reconcile explicitly every shred

of medical testimony.” Galiotti v. Astrue, 266 F. App’x 66, 67 (2d Cir. 2008) (citing
Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)). Here, the ALJ resolved conflicts
between the objective medical record, medical opinion evidence, and plaintiff’s

testimony by assigning the greatest weight to that evidence that she deemed most
consistent with plaintiff’s overall treatment record and activities. In doing so, the ALJ
appropriately evaluated the conflicting medical evidence, and made an RFC finding that
was consistent with the overall record. See Matta v. Astrue, 508 F. App’x. 53, 56 (2d
Cir. 2013) (although ALJ’s conclusion did not perfectly correspond with any of the
opinions of medical sources, ALJ was entitled to weigh all of the evidence available to
make an RFC finding that was consistent with the record as a whole). In light of the
ALJ’s analysis of plaintiff's medical history, the relevant medical opinions, and
plaintiff's activities of daily living, this court concludes that her RFC determination was
supported by substantial evidence, as summarized above.
WHEREFORE, based on the findings above, it is
ORDERED, that the Commissioner’s decision is AFFIRMED, and plaintiffs
complaint is DISMISSED, and it is
ORDERED, that judgment be entered for the DEFENDANT.

Dated: April 29, 2020 | melo) Baten
Andrew T. Baxter
U.S. Magistrate Judge

32

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10312855. Public record. Not legal advice.