The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
SIERRA M. B.,
Plaintiff,
1:20-CV-0127
v. (GTS)
ANDREW SAUL, in his official capacity as
Acting Commissioner of the Social Security
Administration,
Defendant.
______________________________________
APPEARANCES: OF COUNSEL:
LEGAL AID SOCIETY OF NORTHEASTERN NY MARY MARTHA WITHINGTON, ESQ.
Counsel for Plaintiff
40 New Street
Saratoga Springs, NY 12866
SOCIAL SECURITY ADMINISTRATION SEAN SANTEN, ESQ.
OFFICE OF GENERAL COUNSEL–REGION I Special Assistant U.S. Attorney
Counsel for Defendant
JFK Federal Building, Room 625
15 New Sudbury Street
Boston, MA 02203
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this action filed by Sierra M. B. (“Plaintiff”) against the
Commissioner of Social Security Andrew Saul1 (“Defendant”) pursuant to 42 U.S.C. §§ 405(g)
and 1383(c), are (1) Plaintiff’s motion for judgment on the pleadings, and (2) Defendant’s
motion for judgment on the pleadings. (Dkt. Nos. 9, 11.) For the reasons set forth below,
1 Andrew Saul was sworn in as the Commissioner of the Social Security
Administration on June 17, 2019.
Plaintiff’s motion for judgment on the pleadings is denied, Defendant’s motion for judgment on
the pleadings is granted, and Plaintiff’s Complaint is dismissed.
I. RELEVANT BACKGROUND
A. Factual Background
Plaintiff was born in 1997, making her six years old at her alleged onset date and 21 years
old at the date of the ALJ’s decision. Plaintiff reported having a high school education with
involvement in special education. In her application, Plaintiff alleged disability due to chronic
headaches, learning disabilities and difficulty with comprehension, seizures, a history of
childhood brain injury, anger issues, emotional issues, and stomach pain.
B. Procedural History
Plaintiff applied for Supplemental Security Income on November 16, 2015.2 Plaintiff’s
application was initially denied on February 17, 2016, after which she timely requested a hearing
before an Administrative Law Judge (“ALJ”). Plaintiff appeared at a hearing before ALJ Asad
M. Ba-Yunus on August 28, 2017. On November 3, 2017, the ALJ issued a written decision
finding Plaintiff was not disabled under the Social Security Act. (T. 161-72.) 3 On August 2,
2018, the Appeals Council reviewed the ALJ’s decision and remanded for further consideration
on the following issues: (a) the ALJ’s failure to admit certain records; (b) the ALJ’s failure to
2 The Appeals Council found on August 2, 2018, that Plaintiff also effectively filed
an application for Disability Insurance Benefits under Title II based on the fact that she had
sufficient earnings to merit such a claim for benefits prior to the ALJ’s first decision on
November 3, 2017. (T. 178.)
3 The Administrative Transcript is found at Dkt. No. 8. Citations to the
Administrative Transcript will be referenced as “T.” and the Bates-stamped page numbers as set
forth therein will be used rather than the page numbers assigned by the Court’s CM/ECF
electronic filing system.
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adjudicate Plaintiff’s claim under Title II as well as Title XVI; and (c) failing to provide
sufficient rationale to support the ALJ’s findings related to Plaintiff’s mental impairments. (T.
178-79.) The ALJ conducted a second hearing on February 21, 2019, pursuant to the remand
order. (T. 42.) On March 8, 2019, the ALJ issued a written decision, again finding that Plaintiff
was not disabled under the Social Security Act. (T. 15-34.) On December 6, 2019, the Appeals
Council denied review , making the ALJ’s decision the final decision of the Commissioner. (T.
1-3.)
C. The ALJ’s Decision
Generally, in his decision, the ALJ made the following seven findings of fact and
conclusions of law. (T. 15-34.) First, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since her application filing date. (T. 15.) Second, the ALJ found that Plaintiff’s
epilepsy, learning disability, migraines, depression, and anxiety disorder are severe impairments.
(T. 18.) Third, the ALJ found that Plaintiff’s severe impairments do not meet or medically equal
one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”); specifically,
the ALJ considered Listings 11.02, 12.04, 12.05, and 12.06. (T. 19-22.) Fourth, the ALJ found
that Plaintiff has the residual functional capacity (“RFC”) to perform
work at all exertional levels but with the following nonexertional
limitations: she must avoid all hazards including unprotected heights
and dangerous machinery; would require a low stress environment
defined as one in which the individual may perform unskilled, simple,
routine tasks, may have occasional interaction with supervisors,
coworkers, and the general public, and can tolerate occasional
changes to a routine work setting.
(T. 22.) Fifth, the ALJ found that Plaintiff has no past relevant work. (T. 33.) Sixth, the ALJ
found that Plaintiff is not disabled because she remains able to perform a significant number of
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jobs in the national economy, including housekeeper, kitchen helper, and production assembler.
(T. 33.) The ALJ therefore concluded that Plaintiff is not disabled.
D. The Parties’ Briefing on Their Motions
1. Plaintiff’s Motion for Judgment on the Pleadings
Generally, in her motion, Plaintiff makes four arguments. (Dkt. No. 9, at 18-25 [Pl.’s
Mem. of Law].) First, Plaintiff argues that the ALJ erred in failing to find that her seizure
disorder and intellectual disorder meet, equal or functionally equal the relevant Listings. (Id. at
18-20.) As to her seizure disorder, Plaintiff argues that (a) she has one convulsive seizure per
year and approximately 20 absence seizures per day and the frequencies of these seizures meet
the requirements of Listing 11.02, (b) the ALJ failed to provide significant weight to the opinion
from treating physician Dr. Bujarksi or credit Plaintiff’s and her mother’s reports and
observations about her seizures and her level of functioning, and (c) the ALJ erred in finding less
than marked limitations in any of the relevant categories of functional abilities based on the
available evidence. (Id.) As to her intellectual disorder, Plaintiff argues that (a) her assessed IQ
score meets Listing 12.05 and the evidence in the record demonstrates that she has a severe
impairment in executive functioning, and (b) the ALJ erred in relying on opinions from non-
treating consultative examiners and ignoring evidence from her school records, medical records,
and the testimony of Plaintiff and her mother that supports greater functional limitations. (Id.)
Second, Plaintiff argues that the ALJ erred in failing to afford controlling weight to the
opinion of treating neurologist Dr. Bujarksi. (Id. at 21.) More specifically, Plaintiff argues that
the ALJ ignored evidence of her inability to attend work on a consistent basis that supported Dr.
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Bujarksi’s opinion that she would be off-task for more than 20-percent of the workday; she
argues in particular that it is permissible for a physician to rely on a patient’s subjective reports
when assessing limitations produced by mental impairments. (Id.)
Third, Plaintiff argues that the ALJ erred in failing to consider all of her impairments in
combination with each other when determining her RFC. (Id. at 21-23.) More specifically,
Plaintiff argues that the ALJ failed to consider her migraine headaches and chronic fatigue
related to her seizures, as well as her history of abdominal pain, irritable bowel syndrome,
depression, and anxiety. (Id.)
Fourth, Plaintiff argues that the ALJ’s decision is contrary to the substantial weight of the
evidence and incorrect as a matter of law. (Id. at 23-25.) More specifically, Plaintiff argues that
the ALJ failed to (a) consider all of her impairments, (b) give appropriate weight to her
subjective complaints of headaches and fatigue, (c) properly assess her credibility, (d) consider
the testimony of the vocational expert related to her inability to remain on-task, and (e)
appropriately weigh testimony from her and her mother. (Id.)
2. Defendant’s Motion for Judgment on the Pleadings
Generally, in his motion, Defendant makes four arguments. (Dkt. No. 11, at 15-26
[Def.’s Mem. of Law].) First, Defendant argues that substantial evidence supports the ALJ’s
finding that Plaintiff does not meet or medically equal a Listing. (Id. at 15-20.) As to her seizure
disorder, Defendant argues that (a) her tonic-clonic or convulsive seizures do not occur with
sufficient frequency to meet the Listing, (b) her absence seizures are not documented by
objective evidence or observation and are not sufficiently described to permit a reasonable
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finding related to her reported frequency of these seizures (or whether they are in fact seizures at
all), and (c) her seizures of both types have improved and lessened with medications. (Id.) As to
her intellectual disorder, Defendant argues that (a) the record does not substantiate sufficient
deficits in adaptive functioning, and (b) the weight of the evidence supports the ALJ’s finding
that Plaintiff does not have marked limitations in any of the relevant areas of functioning related
to the Listing. (Id.)
Second, Defendant argues that substantial evidence supports the ALJ’s decision to
discount a portion of Dr. Bujarski’s opinion because it was inconsistent with his own treatment
notes and not supported by the evidence, including evidence that a change in her medications
decreased her absence seizure symptoms to once or twice per month. (Id. at 20-24.) Defendant
also argues that the ALJ appropriately based his finding on other opinions and evidence that
contradict Dr. Bujarksi’s opinion on how often Plaintiff would be off-task in the workplace. (Id.)
Third, Defendant argues that the ALJ in fact did consider all of Plaintiff’s impairments in
combination, and that Plaintiff has not pointed out any relevant impairment or matter that the
ALJ actually failed to consider. (Id. at 24-35.)
Fourth, Defendant argues that substantial evidence supports the ALJ’s resolution of any
conflicts between Plaintiff’s subjective reports of symptoms and the objective evidence because
the ALJ adequately explained why he made findings contrary to the testimony from Plaintiff and
her mother, and Plaintiff has not explained either (a) why her reports of migraines should have
been credited in a different manner, and (b) how they were not accommodated by the limitations
the ALJ included in the RFC. (Id. at 25-26.)
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II. APPLICABLE LEGAL STANDARDS
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether an
individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906 F.2d
856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only 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) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to “more than a
mere scintilla,” and has been defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
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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). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
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 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 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 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 could
perform. Under the cases previously discussed, the claimant bears the
burden of the proof as to the first four steps, while the
[Commissioner] must prove the final one.
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Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III. ANALYSIS
1. Whether the ALJ Erred in Finding that Plaintiff Does Not Meet or Equal A
Listing
After careful consideration, the Court answers this question in the negative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 11, at 15-20 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
“The Commissioner’s determination as to whether the claimant’s impairment meets or
equals the Listings must reflect a comparison of the symptoms, signs, and laboratory findings
about the impairment, including any functional limitations that result from the impairment, with
the corresponding criteria shown for the listed impairment.” Hamedallah ex rel. E.B. v. Astrue,
876 F. Supp. 2d 133, 142 (N.D.N.Y. 2012) (D’Agostino, J.). To meet or equal a Listing, the
claimant’s impairment “must satisfy all of the medical criteria of the particular listing.” Myers v.
Comm’r of Soc. Sec., 15-CV-1388, 2017 WL 1184208, at *2 (N.D.N.Y. Mar. 29, 2017) (Sharpe,
J.). “If a plaintiff’s ‘impairment manifests only some of those criteria, no matter how severely,
such impairment does not qualify.’” Capron v. Comm’r of Soc. Sec., 12-CV-1618, 2014 WL
581711, at *5 (N.D.N.Y. Feb. 14, 2014) (Baxter, M.J., McAvoy, J.). “It is the plaintiff’s burden
to establish that his or her medical conditions meet all of the specific medical criteria of a
particular listed impairment.” Capron, 2014 WL 581711, at *5 (emphasis in original).
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Plaintiff argues that the ALJ erred in failing to find that her seizure disorder met Listing
11.02 and her intellectual disability met Listing 12.05. Turning first to her seizure disorder and
Listing 11.02, Plaintiff must demonstrate both a detailed description of a typical seizure and one
of the following: (1) generalized tonic-clonic seizures occurring at least once a month for at least
three consecutive months despite adherence to prescribed treatment; (2) dyscognitive seizures
occurring at least once a week for at least three consecutive months despite adherence to
prescribed treatment; or (3) generalized tonic-clonic seizures, occurring at least once every two
months for at least four consecutive months despite adherence to prescribed treatment, or
dyscognitive seizures occurring at least once every two weeks for at least three consecutive
months despite adherence to prescribed treatment,4 either of which is accompanied by a marked
limitation in one of the following: (a) physical functioning, (2) understanding, remembering or
applying information, (3) interacting with others, (4) concentrating, persisting or maintaining
pace, or (5) adapting or managing oneself. 20 C.F.R. § 404, Subpart P, Appendix 1, Listing
11.02.
Notably, integral to meeting this Listing is the requirement for a detailed description of
the seizures. The regulations specify that there must be “at least one detailed description of your
seizures from someone, preferably a medical professional, who has observed at least one of your
4 The Listings define “generalized tonic-clonic seizures” as those characterized by a
loss of consciousness accompanied by a phases of muscle tensing and convulsions with possible
tongue-biting and incontinence, while “dyscognitive seizures” are defined as those characterized
by alteration of consciousness without convulsions or loss of muscle control with manifestations
such as blank staring, change of facial expression or automatism. 20 C.F.R. § 404, Subpart P,
Appendix 1, Listing 11.00(H)(1).
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typical seizures,” and, if the claimant experiences more than one type of seizure, a description of
each type is required. 20 C.F.R. § 404, Subpart P, Appendix 1, Listing 11.00(H)(2).
The ALJ found that Plaintiff had failed to establish the frequency and intensity of seizure
activity necessary to meet any part of Listing 11.02. (T. 18.) The ALJ noted in particular that
Plaintiff’s seizures had been relatively well-controlled on medication, with only a brief
recurrence of tonic-clonic or convulsive seizure activity in October and November 2018. (T. 18.)
The ALJ also recognized that Plaintiff reported more frequent dyscognitive seizures, but found
that the medical evidence did not include objective documentation to substantiate the reported
frequency of those seizures, and there were no reported observations of these seizures by another
person and no objective testing demonstrating that these reported episodes are even in fact true
seizure activity. (T. 25-26.)
The ALJ’s finding related to Listing 11.02 is supported by substantial evidence. There
appears to be no disagreement that Plaintiff’s tonic-clonic seizures do not meet the requisite
frequency, and the record shows that such seizures have become very infrequent with medication
compliance. As to her dyscognitive seizures, the record indicates that her treating physician was
not certain that the symptoms Plaintiff was experiencing as dyscognitive seizures were actually
seizure activity or something else, such as pre-ictal phenomena or medication side effects. (T.
598, 645, 663.) Particularly, on August 16, 2017, treating neurologist Krzysztof Bujarski, M.D.,
indicated that Plaintiff’s dyscognitive seizures were “subjective phenomenon without any
objective evidence that she is having them.” (T. 658.) While being monitored for seizure
activity over multiple days in January 2017, Plaintiff was observed to have multiple tonic-clonic
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seizures, but she did not have any of her dyscognitive seziures. (T. 609-45.) Given that
Plaintiff’s physician had not definitively concluded that Plaintiff’s subjectively reported
symptoms were in fact seizure activity, the Court cannot say that the ALJ erred in finding that the
evidence does not support a finding that Plaintiff met Listing 11.02.
Additionally, Defendant is correct that there is no detailed description of Plaintiff’s
dyscognitive seizures from anyone who has observed such a seizure. Without such a description
or any objective evidence that these episodes actually represent a dyscognitive seizure, Plaintiff
cannot meet the Listing. Plaintiff asserts that “we have multiple occasions in which plaintiff’s
mother and other family members have described their observations of [plaintiff’s] seizures,” but
fails to cite any such descriptions, or to even assert that these alleged descriptions relate to
Plaintiff’s dyscognitive seizures specifically (as opposed to her tonic-clonic seizures). (Dkt. No.
9, at 19 [Pl.’s Mem. of Law].) Notably, the Court was unable to locate any evidence in the
record that Plaintiff’s mother or anyone else had actually witnessed Plaintiff’s dyscognitive
seizures, but rather they appear to know of these seizures only from Plaintiff’s self-reports. The
Court therefore finds that the ALJ’s finding that Plaintiff has not provided sufficient objective
evidence to substantiate these seizures and their frequency is supported by substantial evidence.
As to Plaintiff’s intellectual disability, Listing 12.05, as applicable here, requires a
claimant to demonstrate the following: (1) significantly subaverage general intellectual
functioning as evidenced by either (a) a full scale or comparable IQ score of 70 or below on an
individually administered standardized test of general intelligence, or (b) a full scale or
comparable IQ score of 71-75 accompanied by a verbal or performance IQ score (or comparable
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part score) of 70 or below on an individually administered standardized test of general
intelligence; (2) significant deficits in adaptive functioning currently manifested by extreme
limitation of one, or marked limitation of two, of the listed areas of mental functioning, namely
(a) understanding, remembering or applying information, (b) interacting with others, (c)
concentrating, persisting or maintaining pace, or (d) adapting or managing oneself; and (3) the
disorder began prior to the attainment of age 22. 20 C.F.R. § 404, Subpart P, Appendix 1,
Listing 12.05(B).5
The ALJ found that Plaintiff had a moderate limitation in understanding, remembering or
applying information, a mild limitation in interacting with others, a mild limitation in
concentrating, persisting or maintaining pace, and a moderate limitation in adapting or managing
herself. (T. 19-20.) Specifically, the ALJ found that, although testing had shown a full scale IQ
lower than 70, the evidence did not show that Plaintiff had the requisite deficits in adaptive
functioning to meet the listing because she did not have marked or extreme limitations in any of
the above relevant areas of functioning. (T. 22.) Plaintiff argues that the ALJ erred in finding
that she did not have marked or extreme limitations because her employment has all been in a
highly supportive environment, she does not socialize with people outside of her immediate
family, and she has great difficulty with maintaining concentration, persistence and pace and with
changes in tasks and routines. (Dkt. No. 9, at 20 [Pl.’s Mem. of Law].) Specifically, Plaintiff
5 The Court finds that it need not consider Listing 12.05(A) in any detail because,
as the ALJ found, the record clearly does not support a finding that Plaintiff has significant
deficits in adaptive functioning manifested by a dependance on others for personal needs such as
toileting, eating, dressing, or bathing or a cognitive inability to participate in standardized testing
of intellectual functioning.
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argues that the ALJ should have afforded more consideration to certain evidence of limitations
than to the opinions from the two consultative examiners who found lesser limitations. (Id.)
The ALJ’s finding related to Listing 12.05 is supported by substantial evidence.
Although Plaintiff is correct that there is some evidence (particularly the reports of Plaintiff and
her mother) that suggests greater deficits in adaptive functioning, the Court cannot say that the
ALJ ignored that evidence or otherwise erred in failing to afford that evidence greater weight.6
Notably, the ALJ specifically recounted portions of Plaintiff’s hearing testimony related to her
functioning in the decision, but found that her statements about the intensity, persistence and
limiting effect of her impairments were not entirely consistent with the medical and other
evidence. (T. 24.) The ALJ also specifically found that “careful review of the totality of the
evidence including the testimony and written statements from treating sources simply does not
provide sufficient evidence to satisfy” the requirements of the Listing. (T. 26.) Thus, there is no
merit to Plaintiff’s assertion that the ALJ ignored evidence of greater limitations; rather, the ALJ
found that such evidence was inconsistent with the picture of functioning created by the evidence
in the record as a whole. Such weighing of the evidence was entirely proper. See Caridad H. v.
Comm’r of Soc. Sec., 18-CV-0893, 2019 WL 3253228, at *5 n.4 (N.D.N.Y. July 19, 2019)
(Dancks, M.J.) (noting that it is “the ALJ’s exclusive province to consider all the relevant
6 Specifically, Plaintiff asserts in her memorandum of law that the ALJ failed to
consider the evidence that Defendant filed as a Supplemental Transcript. (Dkt. No. 9, at 13 [Pl.’s
Mem. of Law].) However, the ALJ specifically referenced that evidence in the relevant decision,
noting that, contrary to the Appeals Counsel’s finding, that evidence had been admitted and
considered, but erroneously was left off the exhibit list in the prior decision. (T. 15-16, 178.)
The ALJ was therefore aware of these records and ostensibly considered them, despite their being
omitted from the original Transcript that was filed by Defendant in this case.
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evidence, weigh the respective opinions, and ultimately reconcile conflicting evidence” when
rendering a decision) (citing Aponte v. Sec’y, Dept. of Health & Human Servs., 728 F.2d 588,
591 [2d Cir. 1984]). Plaintiff’s argument amounts to little more than a request for this Court to
both reweigh the evidence and substitute its own assessment of the evidence for that of the ALJ,
something that this Court is not permitted to do. See Warren v. Comm’r of Soc. Sec., 15-CV-
1185, 2016 WL 7223338, at *9 (N.D.N.Y. Nov. 18, 2016) (Carter, M.J.), report-recommendation
adopted by 2016 WL 72338947 (N.D.N.Y. Dec. 13, 2016) (Suddaby, C.J.) (“When applying the
substantial evidence test to a finding that a plaintiff was not disabled, the Court ‘will not reweigh
the evidence presented at the administrative hearing, . . . nor will it determine whether the
applicant actually was disabled.”) (quoting Lefford v. McCall, 916 F. Supp. 150, 155 [N.D.N.Y.
1996] [McAvoy, C.J.]).
The opinion evidence in particular provides substantial support for the ALJ’s findings.
The ALJ appropriately afforded appreciable weight to medical opinions from physicians who
found no more than moderate limitations in relevant work-related functioning and there is
nothing in those opinions that is inconsistent with the ALJ’s finding that Plaintiff does not meet
Listing 12.05. (T. 27-29.) Specifically, on February 2, 2016, consultative examiner Alicia
Mahler, Ph.D., found that Plaintiff had no limitations in making appropriate decisions and
relating adequately with others, mild limitations in following and understanding simple
directions and instructions, performing simple tasks and appropriately dealing with stress, and
moderate limitations in maintaining attention and concentration, maintaining a regular schedule,
learning new tasks, and performing complex tasks independently. (T. 560-61.) On November
19, 2018, consultative examiner David Schaich, Psy.D., found that Plaintiff had no limitations in
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understanding remembering and applying simple directions and instructions or complex
instructions, sustaining concentration and performing at a consistent pace, sustaining an ordinary
routine and regular attendance at work, maintaining personal hygiene and attire, or being aware
of normal hazards and taking appropriate precautions, mild limitations in using reason and
judgment to make work-related decisions, and moderate limitations in interacting with others and
regulating emotions, controlling behavior and maintaining well-being, and responding to
changes. (T. 686-93.) The ALJ afforded both of these opinions significant weight, finding they
were supported by and consistent with the objective medical evidence as a whole. (T. 27-28.)
The ALJ also afforded significant weight to the December 18, 2015, opinion of Phyllis
Broege, Ph.D., who found that Plaintiff had marked impairment in executive functioning related
to simultaneous processing, working memory and cognitive flexibility, and opined that Plaintiff
may experience significant difficulties with functional independence and successful integration
into the workplace and community if her family support were decreased. (T. 554.) However, a
marked impairment in executive functioning does not necessarily equate to a marked limitation
in any of the broad areas of functioning specified by Listing 12.05, and the Court cannot say that
the ALJ committed error in failing to interpret Dr. Broege’s opinion as evidence that Plaintiff
met the functional requirements of that Listing, particularly given the weight afforded to opinions
that were expressed in more vocationally relevant terms that indicate she does not meet those
functional requirements. More specifically, the ALJ found that the objective medical and other
evidence as a whole does not support limitations beyond those included in the RFC, as will be
discussed in more detail below, and that finding is supported by substantial evidence. Because
Plaintiff has not pointed to anything in the record that would lead this Court to conclude that the
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ALJ’s findings were not supported by substantial evidence, she has failed to show that the ALJ
erred in finding that her intellectual functioning did not meet Listing 12.05.
For all of the above reasons, the Court finds that remand is not warranted on this basis.
2. Whether the ALJ Erred in Weighing the Opinion Evidence
After careful consideration, the Court answers this question in the negative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 11, at 20-21 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
Plaintiff specifically argues that the ALJ erred in failing to afford controlling weight to
the opinion from treating neurologist Dr. Bujarski “in the absence of compelling contradictory
evidence by another treating provider.” (Dkt. No. 9, at 21 [Pl.’s Mem. of Law].) Specifically,
Plaintiff argues that the ALJ failed to adopt Dr. Bujarksi’s opined limitation that Plaintiff would
be off-task more than 20-percent of the workday because (a) under prevailing law, “it is
acceptable for treating sources to rely on subjective symptoms when mental disorders are at
issue,” and (b) the ALJ erred in relying on the opinions of the consultative examiners and
ignoring her testimony that she is unable to show up for her part-time job three out of five days
each week. (Id.)
As the ALJ found and as Defendant argues, limitations in Dr. Bujarski’s opinion such as
the indication that Plaintiff would be off-task 20-percent of the workday are inherently related to
her dyscognitive seizures, as the medical record shows that she very rarely has convulsive-type
tonic-clonic seizures while compliant with medication, but continues to report daily dyscognitive
seizures. (T. 31; Dkt. No. 11, at 21-22 [Def.’s Mem. of Law].) It is well recognized that the ALJ
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may afford controlling weight to the opinion of a treating physician only if it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with the
other substantial evidence in the record. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
However, as discussed above in Part III.1. of this Decision and Order, there is no objective
evidence supporting the frequency of these dyscognitive seizures, and her physicians have not
even been able to objectively determine that they are seizures as opposed to some other
phenomenon or side effect. Indeed, these dyscognitive seizures have never been objectively
verified despite monitoring and observation. Given that Dr. Bujarksi himself was not wholly
certain that Plaintiff’s dyscognitive seizures were seizures, the medical evidence contains nothing
but Plaintiff’s self-reports to substantiate these seizures or their frequency, and the ALJ found
Plaintiff’s subjective reports to be not wholly credible, the ALJ did not commit error in finding
that the off-task and absence limitations in Dr. Bujarski’s opinion should not be relied upon
when formulating the RFC.
Although Plaintiff cites Stacey v. Comm’r of Soc. Sec. Admin., 799 F. App’x 7 (2d Cir.
2020) for the point of law that treating sources can permissibly rely on subjective reports related
to mental disorders, that case is inapposite for multiple reasons. First, the disorder at issue here
is not a mental disorder, but rather a neurological disorder (i.e., dyscognitive seizures) and thus
the Second Circuit’s rationale that psychiatric disorders are often less susceptible to objective
testing and assessment is not wholly applicable here. Stacey, 799 F. App’x at 2. Most notably,
Dr. Bujarksi and other physicians have done diagnostic testing in an attempt to find objective
evidence of Plaintiff’s dyscognitive seizures, but those tests have not yet substantiated Plaintiff’s
claims. Second, the Second Circuit specifically noted that the psychiatrist’s opinion in question
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had been informed not only by the claimant’s self-reports, but also by the psychiatrist’s
“firsthand observations of Stacey’s behavior and affect over the course of dozens of meetings.”
Id. Although Dr. Bujarksi treated Plaintiff for her seizures and observed her during such
treatment, the record is devoid of any firsthand observations of Plaintiff’s dyscognitive seizures
during these treatment visits. Because Stacey is distinguishable from the situation here, the ALJ
did not commit legal error in declining to rely on portions of Dr. Bujarski’s opinion that were
based wholly on Plaintiff’s unsubstantiated subjective reports of symptoms and symptom
frequency related to her dyscognitive seizures.
Additionally, as already discussed, the ALJ afforded greater weight to the opinions from
the consultative examiners and nonexamining physician who opined that Plaintiff would not
experience such significant limitations in remaining on-task as a result of her cognitive and
mental impairments. Plaintiff has not provided any argument as to why those opinions are
unreliable, and, as already discussed, the ALJ provided sufficient reasons for relying on those
opinions. See Colbert v. Comm’r of Soc. Sec., 313 F. Supp. 3d 562, 577 (S.D.N.Y. 2018) (noting
that “it is well-settled that a consulting psychiatric examiner’s opinion may be given great weight
and may constitute substantial evidence to support a decision,” and that “a consultative
examiner’s opinion may be accorded greater weight than a treating source’s opinion where the
ALJ finds it more consistent with the medical evidence”) (collecting cases).
For all of the above reasons, the Court finds that remand is not warranted on this basis.
3. Whether the ALJ’s RFC Finding Is Supported By Substantial Evidence
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After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 11, at 20-24 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
First, the ALJ appropriately considered all of Plaintiff’s impairments in combination with
one another. Plaintiff appears to argue that the ALJ did not properly consider her migraine
headaches, fatigue (resulting from her seizures and medication), irritable bowel syndrome, and
depression and anxiety. (Dkt. No. 9, at 22-23 [Pl.’s Mem. of Law].) However, the ALJ
specifically found that Plaintiff’s migraines, depression, and anxiety were severe impairments
(i.e., that they “significantly limit the ability to perform basic work activities”). (T. 18.) The
ALJ discussed her seizures and cognitive impairment in great detail, and also noted that she
reported various symptoms related to her dyscognitive seizures and her daily abdominal pain, and
that she cries and sleeps a lot due to depression. (T. 19-24.) The ALJ also made specific
findings related to the functional impact of Plaintiff’s gastrointestinal symptoms, headaches,
diminished alertness related to her seizure medication, as well as addressed her reported low
tolerance for stress. (T. 26-27, 32.) Given the ALJ’s thorough discussion, the Court finds
Plaintiff’s argument that the ALJ failed to consider any of her impairments, either alone or in
combination, is without merit. The fact that the ALJ did not discuss all of the evidence or
allegations related to these impairments in great detail in the decision itself does not mean that
the ALJ failed to consider that evidence. See Virginia L.S. v. Comm’r of Soc. Sec., 18-CV-0937,
2020 WL 529688, at *5 (N.D.N.Y. Feb. 3, 2020) (Suddaby, C.J.) (finding that the ALJ was not
required to cite or discuss every piece of evidence that supports or refutes his or her findings)
(collecting cases); Sheri Lee Z. v. Saul, 19-CV-0268, 2019 WL 6840134, at *4 (N.D.N.Y. Dec.
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16, 2019) (Suddaby, C.J.) (noting that “the relevant legal standards do not require the ALJ to
discuss all of the evidence, but rather only show that her decision is supported by substantial
evidence”) (collecting cases).
Second, as discussed above in Parts III.1. and 2. of this Decision and Order, the ALJ’s
RFC is supported by the various opinion evidence, and Plaintiff has not offered any persuasive
reason as to why those opinions should not have been relied upon. Nor does Plaintiff challenge
the ALJ’s reliance on any of the opinions related to the limitations imposed by her documented
seizures beyond the ALJ’s failure to incorporate the discussed limitations from Dr. Bujarski’s
opinion. Because the ALJ appropriately relied on these opinions and the evidence in the record
as a whole provides substantial support for the RFC, the ALJ did not commit any error meriting
remand when formulating the RFC.
Third, the ALJ did not commit any error in declining to rely fully on the testimony of
Plaintiff and her mother. Tellingly, Plaintiff does not provide any argument as to why the ALJ’s
failure to afford greater weight to this subjective testimony was contrary to the evidence or
inconsistent with the applicable legal standard; rather, she merely asserts in a conclusory fashion
that this testimony was credible and consistent with the medical evidence. (Dkt. No. 9, at 24-25
[Pl.’s Mem. of Law].) However, the ALJ adequately explained why he reached a contrary
conclusion as to portions of that testimony. (T. 23-32.) Specifically, after discussing the relevant
testimony, the ALJ found that Plaintiff’s statements concerning the intensity, persistence and
limiting effects of her symptoms were not entirely consistent with the medical evidence and the
other evidence in the record. (T. 24.) The ALJ further explained that portions of her testimony
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suggesting greater limitations or disability were inconsistent with the objective medical evidence
and were belied by some of her reported activities of daily living (including her ability to work
on a part-time basis) that showed a greater level of functioning. (T. 24-32.) The decision
therefore provided sufficient explanation to show that the ALJ’s assessment of Plaintiff’ s
subjective reports was supported by substantial evidence. See Darron O. v. Saul, 20-CV-0090,
2020 WL 6498717, at *9 (N.D.N.Y. Nov. 5, 2020) (Mordue, J.) (finding that the ALJ’s
discussion of medical evidence that was contrary to the plaintiff's subjective reports provided
support for the ALJ’s evaluation of those subjective reports); Brenda Lynn S. v. Comm of Soc.
Sec., 19-CV-0999, 2020 WL 5802272, at *12 (N.D.N.Y. Sept. 29, 2020) (Dancks, M.J.) (finding
the ALJ’s evaluation of the plaintiff's subjective complaints was supported by substantial
evidence where the ALJ cited inconsistency with the objective medical evidence and with other
contrary activities of daily living reported by the plaintiff).
For all of the above reasons, the Court finds that remand is not warranted on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 9) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 11) is
GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED.
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Syracuse, New York
—.__
LMo~f df polit]
Hon. Glenn T. Suddaby 7
Chief U.S. District Judge/
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