“When other substantial evidence in the record conflicts with the treating physician's opinion . . . that opinion will not be deemed controlling. And the less "| consistent that opinion is with the record as a whole, the less weight it will be given.”
How later courts described this case
- “When other substantial evidence in the record conflicts with the treating physician's opinion . . . that opinion will not be deemed controlling. And the less "| consistent that opinion is with the record as a whole, the less weight it will be given.”
- “[W]hether there is substantial evidence supporting the appellant's view is not th question,” instead the question to be answered by the Court is “whether substantial evidence supports the ALJ's decision.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TAMARA M.
Plaintiff,
V.
3:19-CV-1138
ANDREW SAUL, COMMISSIONER OF (CFH)
SOCIAL SECURITY,
Defendant.
APPEARANCES: OF COUNSEL:
Lachman, Gorton Law Firm PETER A. GORTON, ESQ.
P.O. Box 89
~| 1500 East Main Street
Endicott, New York 13761-0089
Attorneys for plaintiff
Social Security Administration CANDACE LAWRENCE, ESQ.
J.F.K. Federal Building, Rm. 625
15 New Sudbury Street
Boston, Massachusetts 02203
Attorneys for defendant
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION AND ORDER
Plaintiff Tamara M.' brings this action pursuant to 42 U.S.C. § 405 (g) seeking
review of the decision by the Commissioner of the Social Security Administration
1 In accordance with 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 2018
to better protect personal and medical information of non-governmental parties, this Memorandum-
Decision and Order will identify plaintiff by first name and last initial.
(“Commissioner,” “SSA,” or “defendant”) denying her application for disability insurance
benefits. Dkt. No. 1. (‘Compl.”).2 Plaintiff moves for a finding of disability, and the
Commissioner cross moves for judgment on the pleadings. Dkt. Nos. 11, 14. With
permission of the Court, plaintiff filed a reply brief, dkt. no. 15, and defendant filed a
surreply, dkt. no. 17. For the following reasons, the determination of the Commissioner
lis affirmed.
1. Background
On October 3, 2016, plaintiff protectively filed a Title Il application for disability
and disability insurance benefits as well as a Title XVI application for supplemental
security income. T at 217-231.3 The claim was denied on December 27, 2016. Id. at
150. Plaintiff filed a written request for a hearing. Id. at 159. On October 16, 2018, a
™ hearing was held before Administrative Law Judge (“ALJ”) David Romero, where
plaintiff was represented by counsel. Id. at 72-109. On October 29, 2018, the ALJ
issued a decision denying plaintiff's application. Id. at 11-30. Plaintiff's timely request
for review by the Appeals Council was denied, making the ALJ’s finding the final
determination of the Commissioner. Id. at 1-5. Plaintiff commenced this action on
September 13, 2019. See Compl.
1
ll. Standards of Review
2 The parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. § 636
(c), Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 73, N.D.N.Y. Local Rule 72.2 (b), and General
Order 18. See Dkt. No. 7.
3 The Court will cite the administrative transcript as “T [page number].” The Court will cite the pagination
that appears in the bottom right-hand corner of the administrative transcript. Citations to the parties’
submissions, however, will be to the pagination generated by the Court’s filing system, ECF, which are
located at the header of each page.
A. Substantial Evidence Standard
In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),
1388(c)(3); Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990). Rather, the Commissioner's determination will only be reversed if the correct
legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d 464,
467 (2d Cir. 1982). Substantial evidence is “more than a mere scintilla,” meaning that in
the record one can find “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)).
The substantial evidence standard is “a very deferential standard of review . . . . [This]
means once an ALJ finds facts, we can reject [them] only if a reasonable factfinder
would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm, 683 F.3d 443,
448 (2d Cir. 2012) (internal quotations marks omitted). Where there is reasonable
doubt as to whether the Commissioner applied the proper legal standards, the decision
should not be affirmed even though the ultimate conclusion is arguably supported by
| Substantial evidence. See Martone v. Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999)
(citing Johnson, 817 F.2d at 986). However, if the correct legal standards were applied
and the ALJ's finding is supported by substantial evidence, such finding must be
sustained “even where substantial evidence may support the plaintiff's position and
despite that the court’s independent analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citation
omitted).
B. Determination of Disability
“Every individual who is under a disability shall be entitled to a disability . . .
benefit... .” 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in
o any substantial gainful activity by reason of any medically determinable physical or
mental impairment... which has lasted or can be expected to last for a continuous
period of not less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable
impairment is an affliction that is so severe that it renders an individual unable to
continue with his or her previous work or any other employment that may be available to
him or her based upon age, education, and work experience. See id. § 423(d)(2)(A).
m| Such an impairment must be supported by “medically acceptable clinical and laboratory
diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is
“based on objective medical facts, diagnoses[,] or medical opinions inferable from [the]
facts, subjective complaints of pain or disability, and educational background, age, and
work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3
(S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
| 1983)).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. §
404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
lf he [or she] is not, the [Commissioner] next considers
whether the claimant has a “severe impairment” which
significantly limits his [or her] physical or mental ability to do
basic work activities.
If the claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has
an impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner] will consider him [or her] disabled without
considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a
claimant who is afflicted with a “listed” impairment is unable
to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant's severe
impairment, he [or she] has the residual functional capacity
to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past
work, the [Commissioner] then determines whether there is
other work which the claimant could perform.
m| Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (spacing added). “If at any step a
finding of disability or non-disability can be made, the SSA will not review the claim
further.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003). The plaintiff bears the initial
burden of proof to establish each of the first four steps. See DeChirico v. Callahan, 134
F.3d 1177, 1180 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses
to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still
| able to engage in gainful employment somewhere. Id. (citing Berry, 675 F.2d at 467).
lll. The ALJ’s Decision
Applying the five-step disability sequential evaluation, the ALJ first determined
that plaintiff had not engaged in substantial gainful activity since December 18, 2015,
the alleged disability onset date. See T at 16. At step two, the ALJ found that plaintiff
had the following severe impairments: fibromyalgia, thoracic spine disorder, lumbar
spine disorder, asthma, sarcoidosis, obstructive sleep apnea, posttraumatic stress
disorder, depression, anxiety disorder, and morbid obesity. Id. At step three, the ALJ
determined that plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. See id. at 17. Before reaching step four, the ALJ
concluded that plaintiff retained the residual functional capacity (“RFC”) to
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except she should avoid concentrated exposure to respiratory irritants.
Occasional balance, stoop, kneel, crouch, crawl, and climb ramps and
stairs. Never climb ropes, ladders or scaffolds. Never exposed to high,
exposed places or moving mechanical parts. Occasional exposure to
weather, extreme heat, extreme cold, wetness, humidity, vibration, and
atmospheric conditions. Can understand, remember and carry out simple
instructions and make simple work[-]related decisions. Can work at a
consistent pace throughout the workday but not at a production rate where
each task must be completed within a strict time deadline. Can tolerate
occasional interaction with coworkers and supervisors and the public.
T at 18.
At step four, the ALJ determined that plaintiff could not perform any past relevant
work. See T at 23. At step five, considering plaintiff's age, education, work experience,
and RFC, the ALJ concluded that there were jobs that existed in significant numbers in
| the national economy that plaintiff could perform. See id. at 24. Thus, the ALJ
determined that plaintiff had not been under a disability, as defined in the Social
Security Act, since the alleged disability onset date. See id.
IV. Relevant Opinion Evidence‘
4 The record also includes Gilbert Jenouri, M.D.’s physical consultative examination. T at 408-411. The
ALJ concluded that Dr. Jenouri “underestimate[s]’ plaintiff's “exertional limitations in light of the updated
Dr. Brett Hartman, Psy.D. performed a consultative examination of plaintiff on
August 20, 2014, two years before the alleged disability onset date. T at 38-42. As
relevant here, Dr. Hartman concluded that plaintiff's attention and concentration
“[a]ppeared to be mildly impaired. She could do the counting without difficulty, yet mad
mistakes with the calculations and serial subtractions.” Id. Her recent and remote
memory skills also “[a]ppeared to be mildly impaired. She could recall 4 out of 4 objects
immediately and 2 of 4 after five minutes. She could perform 4 digits forward and 3
backward.” Id. Dr. Hartman concluded that plaintiff could “follow and understand
simple directions,” “perform simple tasks,” “has mild difficulty in maintaining attention
and concentration,” and “mild to moderate difficulty maintaining a regular schedule.” Id.
at 40-42. Dr. Hartman’s prognosis of plaintiff was “[g]uarded given the multiple and
m| Significant nature of symptoms.” Id. The ALJ accorded this opinion limited weight
because the evaluation occurred “before the time period at issue” and is “not supported
by the objective evidence in the record.” Id. at 18, 20.
Dr. Amanda Slowik, Psy.D. performed a psychological assessment of plaintiff on
November 11, 2016. T at 401-405. Dr. Slowik concluded that plaintiff's attention and
concentration were mild to moderately impaired “due to the claimant's difficulties with
1
orthopedic medical records [] and pain management records []. However, the undersigned has given
them [sic] some weight to Dr. Jenouri’s opinion based on his programmatic expertise, and his opinion
supports the overall conclusion that the claimant cannot exceed the sedentary exertional level of work.”
Id. at 19. Dr. Jenouri does not opine as to plaintiff's time off-task or absences. Id. at 408-411.
Also included in the administrative transcript is an examination from Dr. Justine Magurno, M.D.,
who provided a physical consultative examination of plaintiff on August 27, 2014, two years before the
onset date. T at 31-35. Dr. Magurno concluded that plaintiff “should avoid heights, ladders, and
dangerous machinery.” Id. She assessed marked limitations in lifting, carrying, bending, and right-
sided pushing and pulling. Id. She assessed mild limitations in prolonged sitting, standing, and walking.
Id. She concluded that plaintiff “should avoid dust, fumes, and other Known lung irritants.” Id. The ALJ
concluded that Dr. Magurno’s opinion was entitled to limited weight because she “evaluated the claimant
before the time period at issue” and her “opinion [is] not supported by the objective evidence in the
record.” Id.at 20.
math and distractibility secondary to physical pain which he [sic] rated as a 10/10
today.” Id. at 403. Dr. Slowik assessed plaintiff's recent and remote memory skills to
be “moderately to markedly impaired” as she was able to recall three out of three
objects immediately; zero of three objects after five minutes, and “[w]hen given hints
about the categories to which the 3 objects belonged .. . , was not able to produce any
of the objects”; could recite four digits forward and three digits backward; and
“[iJnstructions on digit span backwards had to be repeated three times due to difficulties
with recall.” Id. Dr. Slowik’s medical source statement provides that plaintiff's ability to
maintain attention and concentration is mild to moderately limited and her ability to
maintain a regular schedule is moderately limited. Id. Plaintiff's opined “[d]ifficulties are
caused by distractibility secondary to pain, cognitive deficits, lack of motivation, anxiety,
m}and depression.” Id. at 404. Her prognosis of plaintiff was “guarded.” Id. The ALJ
assigned “significant weight” to this opinion. Id. at 19.
On December 22, 2016, nonexamining State Agency Medical Consultant Dr. S.
Bhutwala, Ph.D. performed a review of plaintiff's medical record to assess her functional
limitations relating to her mental health conditions. T at 125-27. In relevant part, Dr.
Bhutwala concluded that plaintiff would have moderate limitations in understanding and
remembering detailed instructions, maintaining attention and concentration for extended
periods, performing activities within a schedule, maintaining regular attendance, being
punctual, responding to changes in a work settling, setting realistic goals or making
plans independently of others, completing a normal workday and work week without
interruptions from psychological symptoms, and performing at a consistent pace without
an unreasonable number and length of rest periods. Id. at 126. He concluded that
plaintiff retained the capacity to “perform the . . . basic demands of unskilled work.” Id.
at 127. The ALJ accorded this opinion “significant weight.” Id. at 19.
Plaintiff's treating physician, Dr. Andrea Hsue, M.D., completed a questionnaire
assessing plaintiff's physical limitations due to fibromyalgia, depression, and back pain.
T at 660. Dr. Hsue indicated that these physical conditions, collectively, would cause
plaintiff pain, fatigue, diminish concentration and work pace, and require rest at work.
Id. She further concluded that these symptoms would cause plaintiff to be off task for
greater than 33% of the work day. Id. The conditions would produce good days and
bad days, leading to four or more missed work days per month. Id. Dr. Hsue conclude
that plaintiff could sit for six out of eight hours in a work day, should change position
every 15 minutes, stand or walk for 30 minutes out of an eight-hour day, and could lift
to five pounds for up to a third of the day. Id. at 661. Dr. Hsue indicated that her
assessment represented the period of August 2016 to the present. Id.
Dr. Hsue separately completed an assessment of plaintiff's mental limitations. T
at 665. As relevant here, she concluded that plaintiff had medium? limitation in
maintaining attention and concentration, marked limitations in “maintain[ing] regular
attendance without interruptions from psychological base[d] symptoms,” and
| “preform[ing] [sic] activities within a schedule, [b]e punctual, preform[ing] [sic] at a
consistent pace.” Id. She opined that plaintiff would be off task more than 33% of the
day and absent more than three days per month. Id. When asked the “diagnoses upon
5 The Questionnaire defines medium as “more than slight but less than a serious limitation. The
individual is still able to function satisfactorily for a certain portion of the day and/or perform the tasks
satisfactorily on some of the occasions. The approximate of loss would be more than 20% for the
particular activity but less than 1/3 of the day.” T at 665. It defines marked as “a serious limitation in this
mere is a substantial loss in the ability to effectively function. [T]he loss would be greater than
which the answers set forth hereinabove are based” and the “credible objective
symptomology leading to the answers” in the questionnaire, Dr. Hsue stated,
“fibromyalgia, chronic back pain, depression.” Id. The ALJ gave Dr. Hsue’s
assessments “some weight,” rejecting “the ‘marked’ limitations Dr. Hsue identified,
because they are not consistent with the treatment notes from her office.” Id. at 19. Dr.
| Hsue indicated that her assessment applied from August 2016 to August 2018.
Susan Wenzinger, ANPBC completed a physical assessment of plaintiff on
October 10, 2018. T at 1044-45. Ms. Wenzinger assessed plaintiff's chronic pain due
to her cervical, thoracic, and lumbar spine. Id. at 1044. Ms. Wenzinger indicated that
plaintiff's conditions cause pain and fatigue and that the conditions, pain from
conditions, or side effects from related medication, diminish her concentration and work
m| pace, requiring rest periods at work. Id. at 1044. Ms. Wenzinger concluded that her
conditions would cause plaintiff to be off task between 20% and 33% of the day. ld.
She concluded that the conditions could produce good days and bad days, resulting in
missing four days of work per month. Id. Plaintiff could sit for approximately four hours
of an eight-hour work day, change positions every 30 minutes, stand for four hours of a
eight-hour day, lift over ten pounds occasionally (up to one-third of the day), and lift ten
| pounds or less frequently (up to two-thirds of the day). Id. at 1045. The ALJ assigned
Ms. Wenzinger’s opinion “some weight . . . because she provided the claimant with
treatment” but did not fully adopt the sitting restrictions, finding them inconsistent with
diagnostic imaging of the spine showing mild abnormalities. Id. at 20. He concluded
that Ms. Wenzinger’s medical source statement “supports the conclusion that the
claimant could perform a range of sedentary work.” Id. He also noted that plaintiff
reported an improvement in symptoms with “conservative treatment modalities” which
“undermine[s]” Ms. Wenzinger’s sitting assessment. Id. Ms. Wenzinger indicated that
her answers on the questionnaire applied for the time period of July 10, 2018, to
October 10, 2018, the date she completed the statement. Id. (citing Exh. 14F at 2, 9).
Responding to the hypothetical questions the ALJ posed, the Vocational Expert
o (“VE”) testified that if an individual with the proposed RFC were off task more than 35%
of the day and absent more than four days per month due to physical and mental
impairments, such individual could not perform past work or other work. T at 106. The
VE further testified further that if the individual was off task for ten percent or greater of
the day, there would be no past work or other work. Id. at 106. Further, the VE testified
that the individual would not be permitted more than one excused absence per month.
Id.
V. Arguments
Plaintiff argues that the ALJ committed reversible error insofar as he
(1) “misapprehends the nature” of plaintiff's fibromyalgia .. . , having rejected the
treating source opinions and formed the Residual Functional Capacity . . . based on the
| lack of ‘objective’ findings and various negative clinical findings, despite the fact that
such findings are never positive for FM patients”; (2) substituted his lay opinion for that
of undisputed medical opinions, including his failure to include in the RFC limitations for
being off task or absent “despite undisputed medical opinions that Plaintiff has
impairments to staying on task, attendance, maintaining attention and concentration,
maintaining a regular schedule, etc.” and otherwise improperly weighed the medical
11
opinions; and (3) presented the Vocational Expert (“VE”) an “incomplete and inaccurate”
hypothetical, leading to “unreliable vocational testimony,” rendering the Step Five
finding unsupported by substantial evidence. Dkt. No. 11 at 3.
Defendant argues that (1) declining to incorporate off-task time or absenteeism
into plaintiff's RFC was proper and supported by record evidence; (2) the ALJ “applied
the proper criteria” in assessing plaintiff's complaints of pain and in assessing the
medical opinions; and (3) the step five finding is supported by substantial evidence.
See Dkt. No. 14.
In reply, plaintiff (1) argues that defendant failed to address her argument that th
ALJ’s analysis of the opinion evidence does not meet the “overwhelmingly compelling
standard” such that the nonexamining state agency physician’s opinion could overcome
those of examining medical providers, and, thus, has waived this argument; (2) argues
that defendant mischaracterizes the consideration of pace and attendance limitations in
the RFC, contending that “[i]t is not a matter of whether Defendant’s examiners found
the limitation to be work preclusive, it is a matter of whether ‘moderate’ can be defined
as no limitation and it clearly cannot”; and (3) reargues that State agency psychologist
Dr. Bhutwala’s assessment cannot overcome the opinions of Dr. Hsue and Ms.
Wenzinger as Dr. Bhutwala did not “identify evidence” to support his conclusion of
“moderate limitation.” Dkt. No. 15-1.
In his sur-reply, defendant argues that (1) he addressed plaintiff's
“overwhelmingly compelling standard” argument; (2) plaintiff mischaracterizes
defendant’s position as “[i]Jt was never the Commissioner’s contention that a moderate
limitation in a functional domain does not cause any work-related restrictions” but that a
“moderate limitation in the area of concentration, persistence, and pace does not
preclude the performance of unskilled work — which is not only the type of work the ALJ
found Plaintiff capable of performing, but also the category of jobs identified by the
vocational expert”; and (3) the ALJ properly afforded significant weight to Dr. Bhutwala
because he provided sufficient evidence to support his assessment. See Dkt. No. 17-1.
a
VI. Discussion
A. Applicable Law
1. Residual Functional Capacity
RFC is defined as “what an 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.” Pardee v.
Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (quoting Melville v. Apfel, 198 F.3d
45, 52 (2d Cir. 1999)). “In making a residual functional capacity determination, the ALJ
must consider a claimant's physical abilities, mental abilities, symptomology, including
pain and other limitations which could interfere with work activities on a regular and
continuing basis.” Pardee, 631 F. Supp. 2d at 210 (citing 20 C.F.R. § 404.1545(a)).
| “Ultimately, ‘[a]Jny impairment-related limitations created by an individual's response to
demands of work . . . must be reflected in the RFC assessment.”” Hendrickson v.
Astrue, 11-CV-0927, 2012 WL 7784156, at *3 (N.D.N.Y. Dec. 11, 2012) (quoting Social
Security Ruling ("SSR") 85-15, 1985 WL 56857, at *8)). The RFC determination “must
be set forth with sufficient specificity to enable [the Court] to decide whether the
determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582,
587 (2d Cir. 1984).
2. Treating Physician Rule
The Second Circuit has long recognized the “treating physician rule” set forth in
20 C.F.R. § 416.927(c), which provides that “ ‘the opinion of a claimant's treating
o physician as to the nature and severity of the impairment is given ‘controlling weight’ so
long as it is ‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in the case
record.” Greek v. Colvin, 802 F.3d 370,375 (2d Cir. 2015) (quoting Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008)); see Halloran, 362 F.3.d at 32 (“[T]he opinion of the
treating physician is not afforded controlling weight where
the treating physician issued opinions that are not consistent with other substantial
evidence in the record... .”).
[I]f the ALJ decides the opinion is not entitled to controlling weight, it must
determine how much weight, if any, to give it. In doing so, it must
“explicitly consider” the following, nonexclusive “Burgess 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) (citing Selian v. Astrue, 708 F.3d
409, 418 (2d Cir. 2003)(per curium)). Before a treating physician's opinion can be
discounted, the ALJ must provide “good reasons.” Schaal v. Apfel, 134 F.3d 496, 503,
505 (2d Cir. 1998); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
In Estrella v. Berryhill, the Second Circuit addressed an ALu's failure to “explicitly’
apply the “nonexclusive list” of regulatory factors set forth in Burgess when declining to
accord controlling weight to a treating physician's opinion. 925 F.3d at 96. The Second
Circuit made clear that, such failure was “a procedural error,” and that “remand is
appropriate ‘i]f ‘the Commissioner has not [otherwise] provided ‘good reasons’ [for its
weight assignment][.]’ Id. at 96 (quoting Selian v. Astrue, 708 F.3d at 419-20 and
Halloran, 362 F.3d at 32)). The Court held, “[i]f, however, ‘a searching review of the
| record’ assures us ‘that the substance of the treating physician rule was not traversed,’
[the court] will affirm.” Id. (quoting Halloran, 362 F.3d at 32). This question is addressed
by assessing “whether the record otherwise provides ‘good reasons’ for assigning ‘little
weight’ to [the treating physician's] opinion.” Id.; see also McGinnis v. Comm'r of Soc.
Sec., No. 1:19-CV-0862 CJS, 2020 WL 5569797, at *8 (W.D.N.Y. Sept. 17, 2020) (“Put
differently, an ALJ's failure to explicitly consider the Burgess factors when assigning
less-than-controlling weight to a treating physician's opinion is a ‘procedural error’ that
will require remand, unless the ALJ provides sufficiently good reasons for his weight
assignment [such] that the court can conclude the substance of the treating physician
rule was respected.”) (citing Estrella, 925 F.3d at 96).
3. Review of Medical Evidence
“An ALJ should consider ‘all medical opinions received regarding the claimant.”
Reider v. Colvin, 15-CV-6517P, 2016 WL 5334436, at *5 (W.D.N.Y. Sept. 23, 2016)
(quoting Spielberg v. Barnhart, 367 F. Supp. 2d 276, 281 (E.D.N.Y. 2005)). “The ALJ is
not permitted to substitute his own expertise or view of the medical proof for the treating
physician's opinion or for any competent medical opinion.” Greek, 802 F.3d at 375
(citing Burgess, 537 F.3d at 131). In assessing a plaintiffs RFC, the ALJ may rely on
opinions from examining and non-examining State agency medical consultants because
they are qualified experts in the field of social security disability. See Frye ex rel. A.O. v.
Astrue, 485 F. App'x 484, 487 (2d Cir. 2012) (summary order) (“The report of a State
agency medical consultant constitutes expert opinion evidence which can be given
weight if supported by medical evidence in the record.”); Little v. Colvin, 14-CV-0063
° (MAD), 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) (“State agency physicians
are qualified as experts in the evaluation of medical issues in disability claims. As such,
their opinions may constitute substantial evidence if they are consistent with the record
as a whole.”) (internal quotation marks omitted).
In addition to acceptable medical opinions, an ALJ may also consider the
opinions of “other sources,”® such as medical providers who are not medical sources
nonmedical sources, but is “free to discount” such opinions “in favor of the objective
findings of other medical doctors.” Genier v. Astrue, 298 F. App'x 105, 108-198 (2d Cir.
2008) (summary order). However, an ALJ “should generally explain the weight given to
opinions from these sources or otherwise ensure that the discussion of the evidence...
allows a claimant or subsequent reviewer to follow the adjudicators reasoning, when
such opinions have an effect on the outcome of the case.” 20 C.F.R. § 404.1527(f).
tr!
B. Analysis
1. Off-Task & Absenteeism
8 Although the Social Security Administration revised the rules for assessing the kind of providers that
qualify as acceptable medical sources — rendering certain nurses (Advanced Practice Registered Nurses)
an acceptable medical source — plaintiffs claim was filed prior to the March 27, 2017, effective date.
Thus, although Ms. Wenzinger appears to be an advanced practice nurse, the new rules do not apply.
Plaintiff argues that, in declining to include limitations in the RFC for time off off-
task or maintaining appropriate attendance, the ALJ improperly (1) substituted his lay
opinion for “undisputed” medical opinions finding moderate or greater limitations in her
ability to stay on task and maintain appropriate levels of attendance; and (2) made
“functional assessments based on the bare medical/clinical findings of record” and
| “without a supporting medical opinion.” Dkt. No. 11 at 14-16. Plaintiff also argues that
the ALJ erred in declining to accord Dr. Hsue’s opinion controlling weight, declining to
assign Ms. Wenzinger’s opinion “greater weight,” and in according substantial weight to
Dr. Bhutwala’s opinion. Dkt. No. 11 at 18-23, 25.-26.
In contending that the limitations to staying on task and maintaining acceptable
levels of attendance are “undisputed,” plaintiff notes that (1) consultative examiner Dr.
m| Hartman assessed moderate difficulty in maintaining a regular schedule; (2)
consultative examiner Dr. Slowik found “up to moderate” impairment in maintaining
attention and concentration and a moderate impairment in maintaining a regular
schedule; (3) state agency medical consultant Dr. Bhutwala found moderate’ limitations
in performing activities within a schedule, maintaining regular attendance and
punctuality, completing a work day and work week without interruptions from
psychological symptoms, and performing at a consistent pace without an unreasonable
number and length of rest periods; (4) treating physician Dr. Hsue concluded that
plaintiff's impairments would cause plaintiff to be off task for more than 33% of the day
and absent more than four days per month; and (5) treating nurse, Ms. Wenzinger,
7 Ina footnote, plaintiff argues that Dr. Bhutwala’s assessment finding moderate limitations “cannot
constitute substantial evidence in support of an ALJ’s RFC determination that a claimant can meet the
demands of work” as it is “vague and non-specific.” Dkt. No. 11 at 16 n.1 (citing cases).
concluded that plaintiff's physical impairments would cause her to be off task more than
20% of the workday and absent more than four days per month. Dkt. No. 11 at 15-16.
Due to these opinions, plaintiff proposes that the ALJ’s assessment “does not rise to the
level of ‘overwhelming [sic] compelling’ sufficient to overcome these undisputed
opinions.” Id. Further, in arguing that the ALJ erroneously substituted his opinion as it
| relates to her ability to stay on task and maintain acceptable levels of attendance,
plaintiff contends that his “only analysis of these Two Issues is his statement that the
opinions of Dr. Hsue and NP Wenzi[n]ger are ‘speculative and not supported by any
objective clinical findings.” Id. at 17 (quoting T at 20). Plaintiff contends that there are
“objective bases” for Dr. Hsue and Ms. Wenzinger’s conclusions regarding time off-task
and absenteeism as “the record is replete with complaints of severe, chronic pain
m| throughout her body which also unquestionably impact the ability to stay on task and/or
maintain regular attendance.” Dkt. No. 11 at 17 (citing T at 362, 367, 371, 374, 546,
549, 585; 408, 581, 585, 638, 808, 833, 834, 874, 888, “etc.”).
First, insofar as plaintiff argues that the ALJ formed an RFC absent a supporting
medical opinion because the medical opinions regarding off-task/attendance were
“uncontradicted,” Dkt. No. 11 at 14-15 (quoting Giddings v. Astrue, 333 F. App’x 649,
m| 042 (2d Cir. 2009) (summary order)), yet the ALJ failed to incorporate such limitations
into the RFC, her reasoning is flawed. The Court’s review of the ALJ’s decision and the
record does not reveal that the ALJ substituted his lay opinion for undisputed medical
evidence relating to limitations in work pace and attendance. Although Dr. Hsue, Ms.
Wenzinger, Dr. Slowik, Dr. Bhutwala and Dr. Hartman all concluded that plaintiff had
some degree of limitation in the areas of concentration, persistence, pace and/or
attendance, these findings are not “undisputed” because they diverge on the question o
severity. Only Dr. Hsue and Ms. Wenzinger concluded that these limitations are greater
than mild to moderate. T at 609-10, 660-61, 1044-45.
Second, the ALJ did not set his lay opinion against medical opinions; rather, he
declined to give controlling weight or great weight to the two opinions of record that
found that plaintiff had marked limitations in the areas of staying on task and
maintaining attendance, and instead relied on the other medical opinions of record.
Dkt. No. 11 at 14-15. Because the Court finds that substantial evidence supports the
ALJ’s assignments of weight to the medical opinions, including the weight accorded to
Dr. Hsue and Ms. Wenzinger -- the only two opinions concluding that plaintiff had
marked limitations in the areas of staying on task and attendance — there is no error in
m| his assessment. The ALJ reviewed Dr. Hsue and Ms. Wenzinger’s medical source
statements and compared them to their treatment notes, along with the other medical
opinions, in reaching his weight assessment. T at 19-23. In searching the medical
treatment notes — as neither Dr. Hsue nor Ms. Wenzinger included the support for their
opined limitations in their medical source statements — the ALJ did not interpret raw
medical data. Instead, in finding several medical records indicating normal or less than
m| severe findings, the ALJ reasonably concluded that Dr. Hsue and Ms. Wenzinger’s
8 Plaintiff cites Wagner v. Sec’y of Health & Human Sves., 906 F.2d 856, 861-82 (2d Cir. 1990), and
other cases, arguing that the evidence was not “overwhelmingly compelling” for the ALJ to reject the
“undisputed” medical opinions of record by failing to incorporate limitations to being off task or having an
unacceptable amount of absences in the RFC. Dkt. No. 11 at 15. In Wagner, the Second Circuit was
referring to the treating physician’s uncontradicted opinion and the ALJ’s rejection of this opinion in the
absence of any other medical evidence. 906 F.2d at 861-82. Here, Dr. Hsue and Ms. Wenzinger’s
opinions were contradicted insofar as the other medical opinions of record assessed mild or moderate
limitations in these areas. In declining to accord a higher level of weight to these opinions, the ALJ relied
on other medical opinions, rather than a “circumstantial critique by non-physicians.”). Dkt. No. 11 at 14-
15 (quoting Giddings, 333 F. App’x at 652). Thus, the Court finds plaintiff's cited case law does not direct
the Court to find otherwise. Dkt. No. 11 at 14-15.
highly restrictive opinions were unsupported by their treatment notes, and, therefore,
were speculative. T at 20-23. Although plaintiff correctly notes that most opinions of
record indicated that plaintiff would have some limitations with staying off-task and
attendance, as noted, Dr. Hsue is the only acceptable medical source to conclude that
these limitations were above a moderate degree of restriction.
a
Generally, the opinion of the treating physician will not be afforded controlling
weight when the treating physician issued opinions that were not consistent with those
of other medical experts and is contradicted by other substantial evidence in the record.
Halloran, 362 F.3d at 32; 20 C.F.R. § 404.1527(c)(2); Snell v. Apfel, 177 F.3d 128, 133
(2d Cir. 1999) (“When other substantial evidence in the record conflicts with the treating
physician's opinion . . . that opinion will not be deemed controlling. And the less
"| consistent that opinion is with the record as a whole, the less weight it will be given.”).
Dr. Hsue used two check box forms to assert that plaintiff's physical and mental
limitations each would cause plaintiff to be off task for 33% of the work day and absent
more than four days per month. Although the forms requested Dr. Hsue to explain her
basis for the restrictions opined, she merely referred to plaintiff's diagnoses without
further explanation. This Court has held that where treating physicians use check-box
™! assessment forms that do not explain how they reached these limitations and the
treatment notes do not support those limitations, the treating physicians’ opinions were
reasonably accorded less weight. Kristen B. v. Comm’r of Soc. Sec., 5:20-CV-0032
(ML), 2021 WL 950509, at *9 (N.D.N.Y. Mar. 12, 2021) (citing Mix v. Astrue, 09-CV-
0016, 2010 WL 2545775, at *5 (W.D.N.Y. June 8, 2010) (“[fJorm reports in which a
physician's obligation is only to check a box or fill in a blank are weak evidence at
best.”)); Robert S. v. Comm’r of Soc. Sec., 3:18-CV-357 (ATB), 2019 WL 4463497, at
“13 (N.D.N.Y. Sept. 18, 2019); Caroline B. v. Comm’r of Soc. Sec., 3:18-CV-872 (ATB),
2018 WL 4609123, at *13 (N.D.N.Y. Sept. 25, 2018); Camille v. Colvin, 652 F.App’x 25,
27 (2d Cir. 2016) (summary order), but see Elysia C. v. Comm'r of Soc. Sec., No. 1:19-
CV-1632 (CFH), 2021 WL 677926, at *5 (N.D.N.Y. Feb. 22, 2021) (“[T]he Court notes
°| that vagueness or lack of specificity in a treating physician's opinion, alone, is not a
sufficient basis upon which to afford a treating physician's opinion less than controlling
weight.) (citing Collins v. Berryhill, No. 17-CV-00467 (LJV), 2019 WL 2287787, at *4
(W.D.N.Y. May 28, 2019) (“[T]he fact that a physician left her opinion unexplained on a
form does not mean that it is not ‘well supported by medically acceptable clinical and
laboratory diagnostic techniques and thus not entitled to controlling weight.””)).°
As defendant argues, Dr. Hsue’s forms did not identify the “objective
symptomology together with credible subjective symptomology” upon which she based
her assessment. Dkt. No. 14 at 10. Instead, Dr. Hsue merely pointed to plaintiff's
diagnoses. In her mental assessment, Dr. Hsue opined plaintiff would be off task more
than 33% of the day and miss more than four days of work per month due to her
diagnoses of fibromyalgia, chronic back pain, and depression. T at 666. She provided
| that plaintiff's medications cause fatigue and somnolence. Id. However, fully absent
from the statement is her specific clinical findings to support such marked limitations. Id.
Similarly, as to her very similar assessment of plaintiff's physical limitations -- for which,
like in her assessment of plaintiff's mental limitations, she indicated she was responding
Here, the ALJ did not alone rely on the lack of specificity in Dr. Hsue’s (and Ms. Wenzinger’s) medical
source statement. Instead, he also relied on the fact that the significant limitations opined did not find
support in the treatment notes.
21
regarding fibromyalgia, depression, and chronic back pain — Dr. Hsue did not provide
the specific clinical support for these significant limitations. Id. at 660-61.
Plaintiff argues that the ALJ’s “only analysis of these [t]wo [i]Jssues [off-task and
absenteeism] is his statement that the opinions of Dr. Hsue and NP Wenzinger are
‘speculative and not supported by any objective clinical findings.” Dkt. No. 11 at 16.
°| This ignores the above-reviewed analysis wherein the ALJ reviewed and detailed Dr.
Hsue’s treatment notes and plaintiff's other medical notes, showing that her treatment
notes do not provide support for her claims of marked limitations in the areas of being
on-task or absences. See T at 19-29. Rather than substituting his own judgment, the
ALJ’s analysis indicates to the Court that the ALJ properly considered Dr. Hsue’s
opinions together with the other evidence of record. “There is a difference between
analyzing medical records to determine what the weight of the evidence supports and
interpreting raw medical data that would require the expertise of a physician or other
trained medical source; the ALJ is precluded only from the latter.” Cristina M. v. Saul,
3:18-CV-0332 (CFH), 2019 WL 3321891, at *6 (citing Hanson v. Comm'r of Soc. Sec.,
15-CV-0150 (GTS/WBC), 2016 WL 3960486, at *9 (N.D.N.Y. June 29, 2016), Report-
Recommendation adopted by 2016 WL 3951150 (N.D.N.Y. July 20, 2016)).
Plaintiff argues that the ALJ erred in concluding that Dr. Hsue and Ms.
Wenzinger’s medical source statements were speculative or unsupported by clinical
evidence because medical determinations on “the limitations to various work-related
functions caused by the claimant’s medical impairments,” including maintaining
attention and concentration,
are never made based on actual testing . . . for example, counsel has
never seen a case where an RFC is determined based on having tested a
claimant's ability to stand for 8 hours, maintain attention and concentration
for 8 hours, etc. To the contrary, all functional assessments are
estimations based on the overall available medical information.
Dkt. No. 11 at 17. This argument is a red herring. The ALJ is not requiring such a
heightened standard of Dr. Hsue’s (or Ms. Wenzinger’s) medical source statements.
Instead, the ALJ sought evidence within the “overall available medical information” that
supported the claim of marked limitations in those areas. Id. As Dr. Hsue did not
explain in the medical source statements (despite that question being asked of counsel
via the questionnaire form) the available medical information she relied on in concluding
that plaintiff would be off task 33% of the day due to mental and physical impairments
and absent more than four days per month, the ALJ reviewed the medical record and
reasonably concluded that it did not reveal objective medical evidence supporting such
m| Significant limitations. T at 20.
In a very similar vein, plaintiff further argues that Dr. Hsue and Ms. Wenzinger
“are medical experts who gave their professional opinion[s]’ on plaintiff's off-
task/attendance limitations. Dkt. No. 11 at 17. “As such, their opinions are no more
speculative than the other opinions of record addressing the ability to sit, stand, walk,
need to change positions, lift, carry, etc.” Id. The Court disagrees. As detailed herein,
Dr. Hsue, and, as will be discussed in more detail below, Nurse Wenzinger, provided
two-page, check-box style medical source statements that did not point to evidence
supporting marked limitations in concentration, persistence, and pace. Further, unlike
some other medical opinions in the record -- including the physical assessments plainti
references, where the opined limitations were based at least in part on plaintiff's
completion of tasks — Dr. Hsue’s statements and Ms. Wenzinger’s statement did not
explain the evidence they relied upon in making these decisions. Compare T at 660-61,
665-66 (Dr. Hsue) and T at 1044-45 (Ms. Wenzinger) with T at 401-405 (Dr. Slowik)"°;
at 408-11 (Dr. Jenouri)'', T at 31-35 (Dr. Magurno)"?, and T at 38-42 (Dr. Hartman).
Thus, the ALJ’s decision to accord Dr. Hsue’s opinion less than controlling weight is
supported by substantial evidence.
° The Court also finds that the ALJ committed no error in his assignment of “some
weight” to Ms. Wenzinger’s opinion. As noted, the ALJ accorded “some weight” to Ms.
Wenzinger’s physical assessment because she “provided the claimant with treatment.”
T at 20. Ms. Wenzinger indicated that plaintiff's “chronic pain — cervical, thoracic,
lumbar spine” — would cause plaintiff to have good days and bad days, be off task more
than 20% of the day, and absent four days per month. Id. at 1044. First, the ALJ was
m| Not required to accord Ms. Wenzinger’s opinion controlling weight as she is not an
acceptable medical source. Barnaby v. Comm'r of Soc. Sec., 8:17-CV-0399
(GTS/WBC), 2018 WL 4522057, at *7 (N.D.N.Y. June 6, 2018) (quoting Genier, 298 F.
Appx. at 108 (summary order) (“[A] nurse practitioner is not an ‘acceptable medical
source’ whose opinion is eligible for ‘controlling weight’ . . . and the weight attributed to
[the opinion] was supported by the applicable regulatory factors.”)). Thus, it was within
1
10 Dr. Slowik reviewed plaintiff's history and mode of living and performed a full mental status
examination. T at 402-403.
1 Dr. Jenouri reviewed plaintiff's complaints, medical history, social history, medications, activities of
daily living, and performed a complete physical examination, including general appearance/gait/station;
musculoskeletal examination; neurological examination; examination of extremities and fine motor
activities of plaintiff's hands. T at 408-10.
12 Dr. Magurno examined plaintiff's appearance, and station and performed a physical examination of
her entire body; performed a musculoskeletal examination involving measuring degrees of rotation and
examination of joints; performed a neurologic examination testing reflexes, sensory deficits, and strength
in extremities; tested fine motor activity of hands; and reviewed x-rays. T at 31-34.
13 In her examination before Dr. Hartman, plaintiff performed various tests to gauge her memory,
attention, and concentration, such as counting and recalling objects. T at 38-42.
the ALJ’s discretion to accord Ms. Wenzinger’s opinion “some weight.” Second,
substantial evidence supports the ALJ’s decision to accord her medical source
statement some weight as the restrictive findings were not consistent with the clinical
findings of record, the consultative examinations, and some of plaintiff's reported
activities. Beyond noting that plaintiff had mild degenerative changes in her spine “per
o x-ray,” Ms. Wenzinger did not point to medical records substantiating such severe
limitations. Id. at 1044. As the ALJ discussed, Ms. Wenzinger’s opinion was conclusory
She did not point to clinical support for her limitations, merely listing the fact that plaintiff
experienced chronic back pain and degenerative changes. Id. That both Dr. Hsue and
Ms. Wenzinger reached similar but conclusory findings does not entitle either of them to
greater weight — their consistency with each other does not equate to consistency with
the overall medical treatment notes or the other well-supported medical opinions.
Moreover, for the reasons detailed above, Dr. Hsue’s medical source statement lacks
sufficient record support. The ALJ carefully reviewed the medical record and could not
find substantiation for these opined severe limitations to staying on task and attendance
in either Dr. Hsue or Ms. Wenzinger’s treatment notes. T at 19-23. In sum, rather than
the ALJ substituting his own judgment for Dr. Hsue’s or Ms. Wenzinger’s medical
opinions, the Court’s review of the record demonstrates that the ALJ properly weighed
Dr. Hsue’s and Ms. Wenzinger’s medical source statements. Thus, remand is not
required on this ground.
Substantial evidence also supports the ALJ’s decision to assign “significant
weight” to State Agency Medical Consultant Dr. Bhutwala’s opinion. In according this
opinion significant weight, the ALJ acknowledged that Dr. Bhutwala is a mental health
specialist and that he “based his assessment on a review of the entire record available
at the time of the initial determination[.]’ T at 19.'4 Pointing to Stacey v. Comm'r of Soc.
Sec. Admin., plaintiff argues that Dr. Bhutwala is not entitled to significant weight under
the factors set forth in 20 C.F.R. § 404.1527(c) as he is a non-examining consultant and
his degree of explanation of his conclusion is limited. Dkt. No. 11 at 18; 799 F. App’x 7,
40-11 (2d Cir. 2020) (summary order). Stacey, an unpublished Second Circuit opinion,
held that “unsupported opinion, offered by [a] psychologist[ ] who never so much as
examined [Plaintiff], is little more than ipse dixit.” Stacey 799 F. App’x at 10-11. Plainti
then goes through the record, citing several records she contends support “problems
with chronic fatigue, which would impact staying on task and/or maintaining regular
attendance,” “complaints of severe, chronic pain . . . which also unquestionably
m|impact[s] the ability to stay on task and/or maintain regular attendance,” “relieving
factors,” “significant issues of anxiety and depression with panic attacks which also
impact staying on task and attendance,” and “discharge[] from physical therapy due to
excessive missed appointments, which also supports attendance limitations.” Dkt. No.
11 at 17.
Regardless of its non-precedential nature, dkt. no. 17-1 at 5-6, it does not
appear to the undersigned that Stacey is necessarily inconsistent with Second Circuit's
14 Insofar as plaintiff cites to case law from outside of the Second Circuit and the Program Operations
Manual System (“POMS”), an internal manual of the Social Security Administration, to argue that Dr.
Bhutwala’s opinion cannot suffice to amount to substantial evidence to support the ALJ’s RFC, dkt. no. 11
at 21 (citing Carver v. Colvin, 600 F. App’x 616, 619 (10' Cir. 2015); Parker v. Berryhill, No. 16-C-01182-
PAB, 2018 WL 4520151, at *4 (D. Co. Sept. 21, 2018); Milner v. Berryhill, No. CV 16-CV-1050 GJF, 2018
WL 461095, at *10 (D.N.M. Jan. 18, 2018)), “POMS guidelines have no legal force and do not bind the
Commissioner in making his decision.” Pavia v. Astrue, 5:10-CV-818 (GTS/DEP), 2012 WL 4449859, at
“12 (N.D.N.Y. Aug. 20, 2012) (citing Tejada v. Apfel, 167 F.3d 770, 775 (2d Cir. 1991) and Schweiker v.
Hansen, 450 U.S. 785, 789 (1981)). Further, for the reasons discussed within this Memorandum-
Decision & Order, the Court finds that substantial evidence otherwise supports the ALJ’s determination to
accord Dr. Bhutwala’s opinion substantial weight.
general, well-settled rule that “[t]he report of a State agency medical consultant
constitutes expert opinion evidence which can be given weight if supported by medical
evidence in the record.” Frye, 485 F. App’x at 487 (citing 20 C.F.R. § 416.927(e)(2)(i).
In Stacey, the Second Circuit found that the opinion of the state agency psychiatric
consultant was unsupported, and, therefore, not sufficient to outweigh the treating
| source opinions. Stacey, 799 F. App'x 7 at 10. The Court held that the state agency
psychologists’ conclusions that the claimant could concentrate for two hour blocks of
time lacked a citation to any supporting evidence and “appear[ed] to be a wholly
arbitrary benchmark invented by the agency psychologists.” Id. at 11. Contrary to
plaintiff's argument, Dr. Bhutwala’s conclusions — although they could be more robust —
are not “invented”; rather, the source of his reliance is clear from his statement: Dr.
Slowik’s opinion and the medical records. T at 127. Dr. Bhutwala explicitly pointed to
the medical records and assessments he relied on in making his determination. Id. To
the extent that plaintiff highlights certain medical records that she concludes supports
greater degrees of limitation than those opined by Dr. Bhutwala or Dr. Slowik, the
standard is not whether an independent review of the record could reveal substantial
evidence supporting a finding of disability; rather, whether substantial evidence support
| the ALJ’s conclusion. See, e.g., Bonet ex rel. T.B. v. Colvin, 523 F. Appx. 58, 59 (2d Cir.
2013) (“[W]hether there is substantial evidence supporting the appellant's view is not th
question,” instead the question to be answered by the Court is “whether substantial
evidence supports the ALJ's decision.”).
Insofar as plaintiff argues that Dr. Bhutwala cannot constitute a contrary medical
opinion because he is a psychologist who “does not have the expertise to opine on
functional limitations caused by Plaintiff's physical impairments,” Dr. Bhutwala has the
expertise to assess limitations on concentration, persistence, and pace, which is what
he did. Further, Dr. Bhutwala based his opinion on the findings of consultative examine
Dr. Slowik and a review of the entire medical record. Accordingly, the undersigned find
the ALJ committed no error in giving substantial weight to this opinion.
° Next, in a footnote, plaintiff points to Dr. Slowik’s conclusion that “Plaintiff's
impairments would interfere with the ability to function on a regular basis”; “[t]hus,” she
argues, “these opinions do not provide substantial support for the ALJ’s RFC and, to the
contrary, substantiate the need for limitations in staying on task and/or attendance.”
Dkt. No. 11 at 16.n.1. Dr. Slowik’s conclusion that plaintiff's impairments would interfere
with plaintiff's ability to function on a regular basis is not contrary to the ALJ’s RFC
assessment as Dr. Slowik did not conclude that any of plaintiff's impairments would
markedly interfere with plaintiff's ability to function on a regular basis; rather, she merely
indicated that they would interfere. In explicitly concluding that plaintiff had only mild to
moderate limitations in the areas of concentration, persistence, and pace, the Court can
infer that Dr. Slowik concluded that the “interferences” would not rise to a work-
preclusive level. T at 403. The Court therefore concludes that Dr. Slowik’s statement
| that plaintiff's mental impairments would interfere with her ability to function on a regular
basis is not inconsistent with her conclusion that plaintiff had mild to moderate
limitations in concentration, persistence, and pace; her overall assessment; or the ALJ’s
RFC finding.
To the extent that plaintiff argues that ALJ reached an RFC in absence of a
medical opinion because he failed to incorporate limitations into the RFC for being off-
task/attendance, despite the medical opinions all finding some limitation in these areas,
this argument also fails. Dkt. No. 11 at 15, 17. The ALJ’s decision makes clear that in
reaching his RFC determination he relied on Dr. Bhutwala, Dr. Slowik, and Dr. Jenouri’s
opinions — all of whom are competent medical experts. Although Dr. Hsue, Ms.
Wenzinger, Dr. Bhutwala, and Dr. Slowik all concluded that plaintiff would have
limitations in staying on-task and/or maintaining appropriate levels of attendance, only
Dr. Hsue and Ms. Wenzinger opined that plaintiff would have more than moderate
limitations in these areas. Dr. Slowik concluded that plaintiff would have “mild to
moderate” limitations in staying on task, and Dr. Bhutwala, who based his assessment
on Dr. Slowik’s consultative examination, concluded there would be moderate
limitations. The ALJ limited plaintiff to simple, sedentary work that is not at a production
rate, with the ability to understand, remember, and carry out simple instructions and
make simple work- related decisions. T at 18.
By limiting plaintiff to simple work requiring only the ability to understand,
remember, and carry out simple instructions and decisions and not performing at a
production rate, the ALJ incorporated into the RFC the mild-to-moderate limitations that
were supported by the record and Dr. Bhutwala’s and Dr. Slowik’s assessments.
“Courts have observed that ‘[t]here is significant case law indicating that the ALJ’s
limitation of [a p]laintiff to ‘simple, routine tasks’ and ‘working primarily alone, with only
occasional supervision’ accounts for [his or] her limitations for performing activities
within a schedule and maintaining regular attendance.” Andrea N. v. Saul, No. 3:18-
CV-1186 (CFH), 2020 WL 1140512, at *5 (N.D.N.Y. Mar. 9, 2020) (quoting Matta v.
Astrue, 508 F. App'x. 53, 55 (2d Cir. 2013) (summary order) (“[t]he ALJ found that [the]
plaintiff had moderate difficulties in concentration, persistence and pace and moderate
difficulties in social functioning that limit [him] to simple, routine, low-stress, and
unskilled tasks, which involve no more than minimal contact with co-workers,
supervisors and the general public.”) (additional citations omitted)). Indeed, this Court
has held that moderate limitations in these areas are not necessarily inconsistent with
° simple, unskilled work that is not at a production pace. See, e.g., Andrea N., 2020 WL
1140512, at *4 (finding that the ALJ properly incorporated the plaintiff's at-most
moderate limitations in maintaining work pace and a regular schedule by limiting the
plaintiff to low-stress, goal-oriented jobs, rather than production-pace work; simple,
repetitive instructions; and occasional contact with co-workers, supervisors, and the
public); Melisa G. v. Berryhill, 3:18-CV-508 (DJS), 2019 WL 2502726, at *5 (N.D.N.Y.
m| June 17, 2019) (“[M]oderate limitations are not prohibitive of performing unskilled
work.”) (citing Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) and Lowry v. Comm'r
of Soc. Sec., 1:15-CV-1553 (GTS/WBC), 2017 WL 1290685, at *4 (N.D.N.Y. Mar. 16,
2017)); see also Nesevitch v. Colvin, No. 3:15-CV-935, 2016 WL 5717270, at *16
(N.D.N.Y. Sept. 30, 2016) (finding that mild to moderate limitations in concentration,
persistence, or pace not inconsistent with RFC limiting the plaintiff to work involving
Simple, low-stress tasks and instructions with low-contact). Thus, contrary to plaintiff's
argument that the ALJ “fail[ed] to include any limitations to being off task and/or
attendance,” dkt. no. 11 at 15, the ALJ merely declined to include limitations to support
the marked limitations Dr. Hsue and Ms. Wenzinger opined as he concluded that such
limitations were not supported by the medical record. As the Court finds that substantial
evidence supports the ALJ’s assignments of weight, it also finds that in declining to
incorporate greater restrictions for mild-to-moderate limitations in staying off-task and/or
attendance, the ALJ committed no error.
Thus, the Court finds that the ALJ did not reach an RFC in absence of a medical
opinion, did not substitute his lay judgment for that of a medical opinion, and that his
weighing of the medical opinions — particularly the assessments of Dr. Hsue, Ms.
° Wenzinger, and Dr. Bhutwala — is supported by substantial evidence. Therefore,
plaintiff fails to demonstrate cause for remand with these arguments.
2. Fibromyalgia Assessment
Plaintiff contends that the ALJ “misapprehends” her fibromyalgia by rejecting the
opinions of treating medical providers and relying on “the lack of ‘objective’ findings and
"various negative clinical findings,” even though such findings are “never positive for FM
patients[.]” Dkt. No. 11 at 3. Plaintiff contends further that the negative clinical findings
the ALJ cites are irrelevant and he was instead to rely on “the intensity and severity of
the pain,” plaintiff's daily activities, location/duration/frequency of pain, precipitating/
aggravating factors, type of medication, other treatment, other measures for pain relief.
Id. at 24. Plaintiff further contends that the ALJ’s assessment that plaintiff's conditions
improved “ignores .. . the fluctuating nature of FM. . . and is ‘cherry picking’ the record”
as “despite periods of time when her condition improved, there were equal or more
times her condition worsened and the overall medical evidence evidences chronic
severe pain and with severe average pain levels.” Id. at 24-26. The Court disagrees
and concludes that the ALJ committed no reversible error in his review of plaintiff's
fibromyalgia.
31
It is well-settled, as plaintiff cites, that there are no objective tests for fibromyalgia.
Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003). Further, fibromyalgia is
“not per se disabling.” Tanya W. v. Berryhill, No. 3:17-CV-0624 (CFH), 2019 WL
315057, at *6 (N.D.N.Y. Jan. 22, 2019) (citing Prince v. Astrue, 514 F. App'x 18, 20 (2d
Cir. 2013) (summary order) and quoting Rivers v. Astrue, 280 F. App’x 20, 22 (2d Cir.
° 2008) (summary order)). In assessing whether a claimant's fibromyalgia causes
limitations that need to be incorporated into the RFC, an ALJ may not consider only
objective evidence or the absence of objective evidence of fibromyalgia. See SSR 12-
2p, SSR 12-2P (S.S.A.), 2012 WL 3104869 (July 25, 2012). However, “as SSR 12-2p
sets forth, objective evidence is needed to establish the presence of a medically-
determinable impairment, and, in the case of fibromyalgia, “longitudinal records
m| reflecting ongoing medical evaluation and treatment from acceptable medical sources
are especially helpful in establishing both the existence and severity of the impairment.”
Anysha M. v. Comm'r of Soc. Sec., No. 3:19-CV-0271 (CFH), 2020 WL 1955326, at “5
(N.D.N.Y. Apr. 23, 2020). “Moreover, with respect to pain, the Second Circuit has
explained that ‘disability requires more than mere inability to work without pain. To be
disabling, pain must be so severe, by itself or in conjunction with other impairments, as
| to preclude any substantial gainful employment.” Kenyon v. Comm'r of Soc. Sec., No.
5:16-CV-0260 (WBC), 2017 WL 2345692, at *8 (N.D.N.Y. May 30, 2017) (quoting
Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983)).
The Court's review reveals that the ALJ did not rely solely on a lack of objective
findings in concluding that plaintiff's fibromyalgia and related limitations were
nondisabling. “When, as in this case, a plaintiff alleges pain that exceeds the
objectively verifiable evidence, the ALJ must consider several evaluative factors,
including daily activities, medication, and causes of the pain, in order to determine the
extent to which the pain affects the claimant’s functional capabilities.” Melissa S. v.
Comm'r of Soc. Sec., No. 1:17-CV-995 (ATB), 2019 WL 186643, at *8 (N.D.N.Y. Jan.
14, 2019) (citing 20 C.F.R. § 404.1529(c)(3)(i)-(v), 416.929(c)(3)(i)(v) (additional citation
o omitted).
After finding plaintiff's fibromyalgia to be a severe impairment, the ALJ noted that
despite having certain tender points, plaintiff demonstrated that she was able to
complete many physical tasks in the clinical setting, which fairly suggests she was not
as physically limited as she opined. T The ALJ explicitly discussed rheumatolog
records wherein plaintiff demonstrated tender points “along the costochrondal region
m}and spine, she had no synovitis or tenderness of the hands or wrists, good grip
strength, normal movement in the upper and lower extremities, good range of motion of
the cervical spine, no effusion of the knees bilaterally, no synovitis or tenderness of the
ankles or MTPs, excellent strength in her upper and lower extremities, and normal gait.”
Id. Similarly, although evidencing areas of muscle spasm and tenderness in the left
scapula and cervical region in her May 20, 2016, examination with Dr. Hsue, plaintiff
had normal gait, range of motion, stability, muscle strength and tone, neurologic
reflexes that were +2 and symmetric, no sensory loss, and normal coordination. Id.
The ALJ also reviewed progress notes showing normal gait, normal range of motion
in the cervical, thoracic, and lumbar spine, and no edema. T at 21. The ALJ then
pointed to plaintiffs normal neurologic examination. Id. Additionally, he reviewed
plaintiff's consultive examination before Dr. Jenouri where plaintiff demonstrated tender
points at the shoulders and lumbar area but normal gait, no use of assistive devices,
stable and nontender joints, 5/5 strength In the upper and lower extremities, no muscle
atrophy, in-tact hand and finger dexterity, and 5/5 bilateral grip strength. Id. The ALJ
also documented that his review of “[e]Jmergency room records and progress notes
indicated that the claimant’s musculoskeletal and neurological evaluations were
normal.” Id. He also noted plaintiffs denial of “back pain, neck pain, joint pain, muscle
pain, and decreased range of motion.” Id. (citing B17F at 12). The ALJ reviewed
pulmonology and pain management records which “confirmed that she denied
experiencing any musculoskeletal or neurological symptoms.” Id.
The ALJ considered the longitudinal evidence of record, including plaintiff's
complaints (or reported absence of complaints) of pain. He further considered her
m| reported activities, and level of treatment sought. T at 21. He concluded that plaintiff's
“allegations of disabling pain” to be “not fully consistent with the record.” Id. at 25. The
ALJ noted that, despite plaintiffs claims of significant physical limitations, she engaged
in conservative treatment of joint and musculoskeletal symptoms. Id. at 22. He noted
that plaintiff was discharged from physical therapy for failing to comply with their
attendance policy, epidural injections “provided the claimant with relief,” and her
‘musculoskeletal symptoms and muscle spasms were improving with noted decrease in
pain levels.” Id. at 22. Further, he reviewed her activities of daily living, noting that
although plaintiff “reported that she engages in no activities, the evidence in the record
showed that the claimant traveled to New York for vacation,” “was engaging in more
community activities and attending karaoke,” “lifted a heavy computer desk,” and “cared
for her dog.” Id. at 23. The ALJ noted that plaintiff sought treatment “for widespread
pain, fatigue, and other symptoms that have been attributable to fibromyalgia.” Id. at 21
(citing Exh b13F at 5). He noted further that “most” of her complaints of pain “have
focused on her back” and X-rays of plaintiff's lumbar spine “showed mild diffuse spinal
canal lipomutosis, and mild lumbar dextrocurvature.” Id. at 21. Further, her thoracic
spine x-ray “showed mild degenerative disc changes.” Id.
o Rather than solely rely on objective findings or a lack there of, his consideration of
these examination findings and plaintiff's symptomology was a part of his overall
analysis of this condition. The ALJ did not focus solely on an absence of objective
findings; rather, the ALJ reviewed the “longitudinal record.” Tamara B. v. Comm'r of
Soc. Sec., No. 3:18-CV-0422 (TWD), 2019 WL 2410798, at *10 (N.D.N.Y. June 7, 2019
(finding that the ALJ did not err insofar as he “noted a lack of clinical and objective
| findings” where “he did not rely solely on this aspect of the record in finding Plaintiff was
not disabled or in determining her RFC” but “pointed to a combination of a lack of
evidence supporting Plaintiff's allegations of disabling symptoms as well as
inconsistencies between the treating source opinions and Plaintiffs reported activities.”).
The ALJ concluded that the above records “support the conclusion that the claimant is
capable of a range of sedentary work activity, and contradict the assessment[s] of Dr.
m| Magurno and Hsue.” T at 21. As the ALJ focused not on the absence of clinical
findings, but on the plaintiff's ability to complete the majority of these tasks without
limitation or reports of disabling pain, the ALJ’s assessment of her fibromyalgia as
nondisabling is proper. The ALJ carefully detailed plaintiff's complaints and reviewed
them alongside her medical records and daily activities; therefore, substantial evidence
supports the ALJ’s review of plaintiff's fibromyalgia.
3. Step Five Determination
Plaintiff argues that the ALJ’s Step Five finding is unsupported by substantial
evidence because the ALJ presented the VE with an “incomplete and inaccurate
hypothetical that did not account for all of Plaintiff's exertional and non-exertional
impairments.” Dkt. No. 11 at 27. Although the claimant has the general burden to
| prove that he or she has a disability under the definitions of the Social Security Act, the
burden shifts to the Commissioner at Step Five “to show there is other work that [the
claimant] can perform.” McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2017) (quoting
Brault v. Soc. Sec. Admin., 683 F.3d 443, 445 (2d Cir. 2012)). “An ALJ may rely ona
vocational expert's testimony regarding a hypothetical [question] as long as ‘there is
substantial record evidence to support the assumption[s] upon which the vocational
expert based his opinion’ [and] ... [the hypothetical question] accurately reflect[s] the
limitations and capabilities of the claimant involved.” Mcintyre, 758 F.3d at 151 (quoting
Dumas, 712 F.2d at 1553-54 and citing Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir.
1981)). “If a hypothetical question does not include all of a claimant's impairments,
limitations, and restrictions, or is otherwise inadequate, a vocational expert's response
cannot constitute substantial evidence to support a conclusion of no disability.” Pardee,
F. Supp. 2d at 211 (citing Melligan v. Chater, 94-CV-0944, 1996 WL 1015417, at *8
(W.D.N.Y. Nov. 14, 1996)).
As discussed above, the Court finds that the ALJ's analysis regarding the evidence
and the resulting RFC are supported by substantial evidence. The ALJ's decision
includes adequate explanation for his findings on plaintiff's alleged limitations, and
plaintiff has not established further limitations than those included in the RFC.
Therefore, the Court finds that the ALJ did not err in relying on the VE testimony which
was in response to a hypothetical question reflecting the ALJ's RFC determination.
Therefore, remand is not required on this basis.
VII. Conclusion
° WHEREFORE, for the reasons set forth herein, it is HEREBY
ORDERED, that plaintiff's motion for judgment on the pleadings (dkt. no. 11) is
DENIED, and it is further
ORDERED, that defendant's motion for judgment on the pleadings (dkt. no. 14)
is GRANTED, and it is further
ORDERED, that the determination of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
Dated: March 30, 2021
Albany, New York 7 4 /)
Christian F. Hummel
U.S. Magistrate Judge