The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
AMANDA R.,
Plaintiff,
-v- 6:20-CV-596
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
APPEARANCES: OF COUNSEL:
OFFICE OF PETER W. ANTONOWICZ PETER W. ANTONOWICZ, ESQ.
Attorneys for Plaintiff
148 West Dominick Street
Rome, NY 13440
SOCIAL SECURITY MOLLY CARTER, ESQ.
ADMINISTRATION Special Ass’t U.S. Attorney
Attorneys for Defendant
J.F.K. Federal Building, Room 625
15 New Sudbury Street
Boston, MA 02203
DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION & ORDER
I. INTRODUCTION
On May 29, 2020, plaintiff Amanda R.1 (“plaintiff” or “claimant”) filed this
action seeking review of the final decision of defendant Commissioner of
Social Security (“Commissioner”) denying her application for Disability
Insurance Benefits (“DIB”) under the Social Security Act (the “Act”).
The Commissioner has filed a certified copy of the Administrative Record
and both parties have briefed the matter in accordance with General Order
18, which provides, inter alia, that an appeal taken from the Commissioner’s
final decision denying benefits will be treated as if the parties have included
in their briefing cross-motions for judgment on the pleadings. See FED. R.
CIV. P. 12(c).
Plaintiff’s appeal will be considered on the basis of these submissions
without oral argument.
II. BACKGROUND
On January 15, 2019, plaintiff filed an application for DIB alleging that
her bipolar disorder, depression, anxiety, lower back pain, liver lesion,
1 In accordance with a May 1, 2018 memorandum issued by the Judicial Conference’s
Committee on Court Administration and Case Management and adopted as local practice in this
District, only claimant’s first name and last initial will be mentioned in this opinion. Although
plaintiff has a double surname, at her administrative hearing she indicated a preference for the one
beginning with “R.” See R. at 32.
irritable bowel syndrome, hypersomnia, diabetes, and arthritic knee pain
rendered her disabled beginning on February 2, 2018. R. at 67, 247, 250.2
Plaintiff’s claim was initially denied on May 9, 2019, R. at 102–13, and
denied again after reconsideration on August 7, 2019, id. at 115–26. At her
request, a hearing was held before Administrative Law Judge (“ALJ”) John P.
Ramos on February 4, 2020. R. at 32–65. Plaintiff, represented by attorney
Peter Antonowicz, appeared and testified by video from her attorney’s office
in Rome, New York. Id. The ALJ also heard testimony from Vocational
Expert (“VE”) Linda Vause. Id.
Thereafter, the ALJ issued a decision denying plaintiff’s application for
benefits from February 2, 2018, the alleged onset date, through March 4,
2020, the date of his written decision. R. at 13–24. This decision became the
final decision of the Commissioner on April 16, 2020, when the Appeals
Council denied plaintiff’s request for review. Id. at 1–6.
III. LEGAL STANDARD
The Act defines “disability” as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or
2 Citations to “R.” refer to the Administrative Record. Dkt. No. 8.
can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A).
To qualify as disabled within the meaning of this definition, the Act
requires that a claimant’s:
physical or mental impairment or impairments [must
be] of such severity that he is not only unable to do his
previous work but cannot, considering his age,
education, and work experience, engage in any other
kind of substantial gainful work which exists in the
national economy, regardless of whether such work
exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A).
The ALJ follows a five-step sequential evaluation process to decide
whether a claimant is disabled. 20 C.F.R. § 404.1520.3 At step one, the ALJ
determines whether the claimant is currently engaged in “substantial gainful
activity.” § 404.1520(a)(4)(i). If so, the claimant is not disabled regardless of
his medical condition or other factors. § 404.1520(b).
If the claimant is not engaged in substantial gainful activity, then step
two requires the ALJ to determine whether the claimant has a “severe”
impairment or combination of impairments; i.e., a medically determinable
3 Section 404.1520 sets forth the five-step evaluation for Disability Insurance Benefits
(“DIB”). A parallel set of regulations govern SSI applications. See 20 C.F.R. § 416.920(a)(4).
condition that “significantly limits” his physical or mental ability to do basic
work activities. § 404.1520(c).
If the claimant suffers from a severe impairment or combination of
impairments, then step three requires the ALJ to determine whether the
impairment(s) meet or equal an impairment specifically listed in Appendix 1
of the Regulations (the “Listings”). § 404.1520(d). If the claimant’s severe
impairment(s) meet or equal one or more of the Listings, then the claimant is
presumed to be disabled regardless of any other factors. § 404.1520(a)(4)(iii).
If the claimant is not presumed disabled under one or more of the Listings,
then step four requires the ALJ to assess whether—despite the claimant’s
severe impairment(s)—he has the residual functional capacity (“RFC”) to
perform his “past relevant work.” § 404.1520(e)–(f). If so, the claimant is not
disabled. § 404.1520(a)(4)(iv).
Finally, if the claimant cannot perform his past relevant work, the
Commissioner must determine if the claimant’s RFC, in combination with his
age, education, and work experience, permits the claimant to do any other
work in the national economy. § 404.1520(a)(4)(v), (f)–(g).
The burden of proof for the first four steps is on the claimant. Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996). However, if the claimant shows he
cannot perform his past relevant work at step four, the burden shifts to the
Commissioner for step five. Id.
The Act further provides for judicial review of “any final decision . . . made
after a hearing” by the Social Security Administration (“SSA” or the
“Agency”). 42 U.S.C. § 405(g). However, the scope of this review is limited to
determining whether (1) the Commissioner applied the correct legal standard
to his analysis and, if so, (2) whether the final decision is supported by
“substantial evidence.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per
curiam) (cleaned up).
“Substantial evidence means more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (cleaned
up). “If the reviewing court finds substantial evidence to support the
Commissioner’s final decision, that decision must be upheld, even if
substantial evidence supporting the claimant’s position also exists.” Morales
v. Berryhill, 484 F. Supp. 3d 130, 140 (S.D.N.Y. 2020) (citation omitted).
However, this “deferential standard of review for substantial evidence
does not apply to the Commissioner’s conclusions of law.” Byam v. Barnhart,
336 F.3d 172, 179 (2d Cir. 2003). Thus, “where there is a reasonable basis for
doubting whether the Commissioner applied the appropriate legal
standards,” the decision should not be affirmed. Johnson v. Bowen, 817 F.2d
983, 986 (2d Cir. 1987). This is so regardless of whether or not the decision is
otherwise supported by “substantial evidence.” See id.
IV. DISCUSSION
The ALJ applied the five-step analysis to find that: (1) plaintiff had not
engaged in substantial gainful activity since February 2, 2018, the alleged
onset date; (2) plaintiff’s obesity, diabetes, asthma, and hypersomnia were
“severe” impairments within the meaning of the Regulations; and that
(3) these severe impairments, whether considered individually or in
combination, did not meet or equal any of the Listings. R. at 16–19.
At step four, the ALJ determined that plaintiff retained the RFC to
perform a limited range of sedentary work. R. at 19. In particular, the ALJ
found that plaintiff could:
perform sedentary work . . . except for the following:
the claimant should avoid exposure to concentrated
respiratory irritants and extremes of temperature; the
claimant retains the ability to understand and follow
simple instructions and directions, perform simple
tasks with supervision and independently, maintain
attention/concentration for simple tasks and regularly
attend to a routine and maintain a schedule; the
claimant is able to related to and interact with
coworkers and supervisors to the extent necessary to
carry out simple tasks-but she should avoid work
requiring more complex interaction, negotiation or
joint efforts with coworkers to achieve work goals and
she can have no interaction with the public; the
claimant is able to make decisions directly related to
the performance of simple work and handle usual
work place changes and interactions associated with
simple work; the claimant should work in a position
where she is not responsible for the work of or required
to supervise others; the claimant should work in a
position with little change in daily work processes or
routines.
Id.
The ALJ further found that plaintiff had past relevant work as an
“accounting clerk” and a “licensed practical nurse,” but that she would not be
able to perform this past work based on the stated RFC finding. R. at
22. However, based on the testimony of the VE and a consideration of other
relevant factors, the ALJ determined that plaintiff could still perform work
as an “addresser,” a “cutter and paster,” and as a “touch up screener.” Id. at
23.
Because these representative jobs existed in sufficient numbers in the
national economy, the ALJ concluded that plaintiff was not disabled during
the relevant time period. R. at 23–24. Accordingly, the ALJ denied plaintiff’s
application for benefits. Id. at 24.
A. Plaintiff’s Appeal
Plaintiff contends the ALJ (1) failed to properly evaluate her mental
impairments throughout the five-step sequential analysis and (2) improperly
assessed the medical opinion evidence when formulating his RFC at step
four. Pl.’s Mem., Dkt. No. 13 at 1.4
4 Pagination corresponds to CM/ECF.
1. Mental Impairments
“Where, as here, mental impairments are at issue, the Commissioner
directs administrative adjudicators to employ a ‘psychiatric review technique’
(sometimes referred to as a ‘special technique’).” Lake v. Colvin, 2016 WL
2757750, at *6 (N.D.N.Y. May 12, 2016) (cleaned up). “This technical method
helps administrative law judges first determine whether claimants have
medically[ ] determinable mental impairments.” Id. “This technique also
enables administrative law judges to determine [ ] whether medically[ ]
determinable mental impairments are severe (a Step 2 issue) and whether
they meet or are equivalent in severity to any presumptively disabling
mental disorder (a Step 3 issue).” Id.
At the first step of this special technique, the ALJ must evaluate
“symptoms, signs, and laboratory findings” to determine whether the
claimant has one or more medically determinable mental impairments. 20
C.F.R. § 404.1520a(b)(1). If so, at step two of the special technique the ALJ
must rate the degree of functional limitation that results from the medically
determinable mental impairment(s). § 404.1520a(b)(2). This involves
consideration of “four broad functional areas”: (1) understanding,
remembering, or applying information; (2) interacting with others;
(3) concentrating, persisting, or maintaining pace; and (4) adapting or
managing oneself. § 404.1520a(c)(3).
These four functional areas are measured on a five-point scale that ranges
between “none,” “mild,” “moderate,” “marked,” and “extreme,” with the last
point on the scale representing “a degree of limitation that is incompatible
with the ability to do any gainful activity.” § 404.1520a(c)(4). If, however,
the degree of limitation in each of these areas is “none” or “mild,” the
impairment will be considered non-severe absent evidence that “otherwise
indicates that there is more than a minimal limitation in [the claimant’s]
ability to do basic work activities.” § 404.1520a(d)(1).
A review of the ALJ’s narrative discussion reflects that he applied this
“special technique.” R. at 16–18. In brief, the ALJ found that plaintiff
suffered from medically determinable “bipolar disorder,” analyzed the four
broad functional areas, and determined that plaintiff had only “mild”
limitation in each one. Id. at 16–17. Accordingly, the ALJ concluded that
plaintiff’s bipolar disorder was “nonsevere.” Id. at 16.
To reach this result, the ALJ relied primarily on the findings of an
examining and two non-examining consultants, each of whom broadly opined
that plaintiff had either “none” or only “mild” limitation in any one of the four
functional areas. See R. at 17. Conversely, the ALJ discounted a much more
restrictive assessment of plaintiff’s mental limitations that was offered by
Vijayakumar Kormareth, M.D., one of her treating physicians. R. at 17–18.
Dr. Kormareth opined that plaintiff “cannot work” at all because she suffers
from “marked” and even some “extreme” limitations in her ability to carry out
various mental tasks. Id. at 1976–80, 1984–86. Dr. Kormareth also opined
that these various limitations would cause plaintiff to be off-task for at least
50% of an eight-hour work day and would cause her to miss more than four
days of work each month. Id. at 1986.
The ALJ rejected Dr. Kormareth’s findings of marked and extreme
limitations as “not persuasive,” reasoning that his opinions “consist[ ] of
generally check boxes” and observing that the “record does not substantiate
the extent of the limitations set forth.” R. at 18. The ALJ further determined
that Dr. Kormareth’s findings about the frequency and duration of plaintiff’s
time off task and absences were “speculative, and not supported by the
record.” Id.5
Plaintiff contends the ALJ’s analysis of Dr. Kormareth’s findings amounts
to legal error. Pl.’s Mem. at 18. According to plaintiff, the “ALJ failed to
follow the requirement [sic] assessment techniques and failed to base his
findings on a longitudinal picture of the overall degree of functional
limitation.” Id. In plaintiff’s view, the ALJ should have obtained the services
of a medical expert to resolve the conflict in the medical opinion evidence. Id.
5 As plaintiff correctly notes, the ALJ’s written decision says these findings are “not
speculative,” but this is clearly a typographical error when read in context. R. at 18.
Upon review, these arguments will be rejected. “It is well-established that
the ALJ has both the ability and the responsibility to resolve conflicts in the
evidence.” Doty v. Comm’r of Soc. Sec., 2017 WL 4621630, at *6 (N.D.N.Y.
Oct. 13, 2017) (Suddaby, J.). The ALJ appropriately identified just such an
evidentiary conflict when applying the special technique: on the one hand,
Dr. Kormareth assessed extremely restrictive mental limitations; on the
other, the examining and non-examining consultants found only “none” or
“mild” mental limitations.
Plaintiff has failed to point out any controlling legal principle that
obligated the ALJ to retain a medical expert to help him resolve that
evidentiary conflict under the circumstances. Cf. Beasock v. Colvin, 2014 WL
421324, (Sharpe, J., adopting Report & Recommendation of Hines, M.J.)
(explaining that under a prior iteration of the Regulations an ALJ “has
discretion as to when it is necessary to call a medical expert”).
And for the reasons explained at length in the Commissioner’s brief, the
ALJ was entitled to resolve that conflict by relying on the consultants’
opinions, which were consistent with each other and with the rest of the
medical record. Schlichting v. Astrue, 11 F. Supp. 3d 190, 204 (N.D.N.Y.
2012) (Suddaby, J., adopting Report & Recommendation of Bianchini, M.J.)
(“It is well settled that an ALJ is entitled to rely upon the opinions of both
examining and non-examining State agency medical consultants, since such
consultants are deemed to be qualified experts in the field of social security
disability.”). Accordingly, these arguments will be rejected.6
2. Medical Opinion Evidence
“Where, as here, the ALJ finds at step two that a claimant has one or more
‘severe’ impairments but determines at step three that the claimant is not
presumptively disabled, the ALJ must go on to make an RFC finding, which
is an assessment of ‘what an individual can still do despite his or her
limitations.’” Tammy Lynn B. v. Comm’r of Soc. Sec., 382 F. Supp. 3d 184,
192 (N.D.N.Y. 2019) (quoting Cox v. Astrue, 993 F. Supp. 2d 169, 183
(N.D.N.Y. 2012) (McAvoy, J.)).
“In making a residual functional capacity determination, the ALJ must
consider a claimant’s physical abilities, mental abilities, [and subjective
symptomatology], including pain and other limitations which could interfere
with work activities on a regular and continuing basis.” Samantha S. v.
Comm’r of Soc. Sec., 385 F. Supp. 3d 174, 183 (N.D.N.Y. 2019) (citation
omitted).
6 Importantly, an “RFC determination must account for limitations imposed by both severe and
nonsevere impairments.” Parker-Grose v. Astrue, 462 F. App’x 16, 18 (2d Cir. 2012) (summary
order). Although the ALJ found that plaintiff’s bipolar disorder was “nonsevere,” he nevertheless
included various mental limitations in his RFC finding at step four. R. at 19. The ALJ did not,
however, include the “inability to reliably attend work or be excessively off task due to concentration
deficits.” Pl.’s Mem. at 13. The ALJ’s treatment of those opinions will be discussed infra.
“The claimant’s RFC is determined based on all of the relevant medical
and other evidence in the record, including the claimant’s credible testimony,
objective medical evidence, and medical opinions from treating and
consulting sources.” Rivera v. Comm’r of Soc. Sec., 368 F. supp. 3d 626, 640
(S.D.N.Y. 2019). “In practice, administrative law judges rely principally on
medical source opinion and subjective testimony when assessing impaired
individuals’ ability to engage in work-related activities.” Tammy Lynn B.,
382 F. Supp. 3d at 192–93 (citation omitted).
Historically, the Regulations divided evidence from medical sources into
three categories: (1) treating; (2) acceptable; and (3) other.7 Under this
category-based approach, an opinion from a “treating source” enjoyed special
treatment: it received controlling weight as long as it was “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] record.” Tammy
Lynn B., 382 F. Supp. 3d at 193 (citation omitted). This came to be known as
the “treating physician rule.” Id.
7 A treating source included a claimant’s “own physician, psychologist, or other acceptable
medical source” who has provided “medical treatment or evaluation and who has, or has had an
ongoing treatment relationship” with the claimant. Tammy Lynn B., 382 F. Supp. 3d at 193 (citation
omitted).
However, on January 18, 2017, the SSA revised the rules regarding the
way it evaluates evidence from medical sources.8 Under the new regime, “no
particular deference or special weight is given to the opinion of a treating
physician.” Quiles v. Saul, 2021 WL 848197, at *9 (S.D.N.Y. Mar. 5, 2021).
Instead, an ALJ is now obligated to evaluate the persuasiveness of “all of the
medical opinions” based on the same general criteria: (1) supportability;
(2) consistency with other evidence; (3) the source’s relationship9 with the
claimant; (4) the source’s area of specialization; and (5) other relevant
case-specific factors “that tend to support or contradict a medical opinion or
prior administrative medical finding.” 20 C.F.R. §§ 404.1520c(c)(1)–(5);
416.920c(c)(1)–(5).
The most important of these factors are supportability and consistency. 20
C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). Although the Regulations obligate
the ALJ to explain how he or she considered these two specific factors, “an
explanation for the remaining factors is not required unless the ALJ is
deciding among multiple medical opinions of equal support and consistency
on the same issue that differ slightly.” Dany Z. v. Saul, –F. Supp. 3d–, 2021
8 The new Regulations apply to claims filed on or after March 27, 2017. Because plaintiff’s
claim was filed on January 15, 2019, the new Regulations govern this appeal.
9 This “relationship” factor includes (i) the length of the treating relationship; (ii) the frequency
of examination; (iii) the purpose of the treating relationship; (iv) the extent of the treating
relationship; and (v) whether the source examined the claimant. 20 C.F.R. §§ 404.1520c(c)(3)(i)–(v);
416.920c(c)(3)(i)–(v).
WL 1232641, at *9 (D. Vt. Mar. 31, 2021); see also §§ 404.1520c(b)(2),
416920c(b)(2).
As an initial matter, plaintiff argues that these new Regulations did not
validly eliminate the “treating physician” rule because it “was enunciated by
the Second Circuit before [being] incorporated in the regulations.” Pl.’s Mem.
at 20. In plaintiff’s view, the treating physician rule “remains applicable
despite the conceptual change from an assessment of weight to that of
persuasiveness.” Id. at 21.
Upon review, this threshold argument about the validity of the new
Regulations must be rejected. “Multiple courts have considered similar
arguments as the new regulations become more widely applied, and all have
upheld the validity of the Commissioner’s elimination of the treating
physician rule and implementation of the new regulations.” Tasha W. v.
Comm’r of Soc. Sec., 2021 WL 2952867, at *6 (N.D.N.Y. July 14, 2021)
(Dancks, M.J.) (collecting cases).
Importantly, the new Regulations do not amount to much of a change in
terms of the analysis itself. As Judge Baxter recently explained:
Consistency and supportability were as important
under the previous regulations as they are in the new
regulations because “consistency” with evidence in the
record was always considered when determining
whether “controlling” weight was going to be given to
a treating physician’s opinion, before any of the other
factors were considered. The new regulations restate
the factors which have always been used in
considering any medical opinion. A treating
physician’s opinion may still be more persuasive
because he or she will have examined the plaintiff
more frequently and will presumably have a more
substantial relationship with the patient. Thus,
although there is no “special” deference given, the
treating relationship is one of the factors to be
considered in the analysis under the new regulations.
Harry B. v. Comm’r of Soc. Sec., 2021 WL 1198283, at * (N.D.N.Y. Mar. 30,
2021) (Baxter, M.J.).
In other words, although “ALJs are no longer directed to afford controlling
weight to treating source opinions—no matter how well supported and
consistent with the record they may be—the regulations still recognize the
‘foundational nature’ of the observations of treating sources, and ‘consistency
with those observations is a factor in determining the value of any [treating
source’s] opinion.” Shawn H. v. Comm’r of Soc. Sec., 2020 WL 3969879, at *6
(D. Vt. July 14, 2020) (quoting Barrett v. Berryhill, 906 F.3d 340, 343 (5th
Cir. 2018)). Accordingly, plaintiff’s challenge to the validity of the revised
Regulations must be rejected.
Next, plaintiff contends that the ALJ’s RFC finding should have included
the more restrictive limitations assessed by her various treating
providers. Pl.’s Mem. at 20–24. Plaintiff also contends that the ALJ should
not have relied on her ability to complete “ill-defined and isolated activities”
when formulating his RFC. Id. at 23–24.
The medical component of the ALJ’s RFC analysis relies primarily on the
opinions of consultative examiner Trevor Litchmore, M.D. and non-examining
consultant C. Krist, D.O. R. at 21. These two consultants offered opinions
about plaintiff’s physical functioning. Id. Dr. Krist opined that plaintiff
could handle the exertional demands of sedentary work with some
environmental limitations. Id. Dr. Lichtmore opined in a broadly similar
fashion. Id. As relevant here, the ALJ concluded that both Dr. Krist and Dr.
Lichtmore’s opinions were “persuasive” and “consistent with” the overall
record. Id.
However, the ALJ discounted the opinions from two of plaintiff’s treating
sources. R. at 21–22. First, William Jorgensen, D.O., one of plaintiff’s
treating physicians, opined that plaintiff “would be off task 10% or more in an
8 hour day” and “would miss more than 4 days of work per month.” Id. at 22.
Second, Deborah Cardinal, RPA-C, another of plaintiff’s treating providers,
opined that plaintiff “would be absent more than 4 days per month.” Id. The
ALJ concluded that these opinions about time off-task and absenteeism were
“speculative and not supported with an explanation.” Id.
Upon review, plaintiff’s challenge to the ALJ’s RFC finding must be
rejected. As explained supra, the opinion of a claimant’s treating physician
was and is of central importance in the disability determination. However,
the ultimate question of whether a claimant is disabled under the Act is an
administrative determination reserved to the Commissioner. Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999).
The analytical difficulty presented by this argument comes from the fact
that neither of these particular findings can be readily confirmed or dispelled
just by examining treatment notes or objective criteria. Instead, these
conclusions about plaintiff’s ability to function during the work day (and to
show up to work at all)10 rest in some substantial part on the black box of the
treating providers’ experience with plaintiff’s various conditions.
However, that does not mean that these topics are shielded from scrutiny
in the disability analysis. “The ability to maintain a regular schedule falls
under the category of concentration and persistence.” Andrea N. v. Saul,
2020 WL 1140512, at *5 (N.D.N.Y. Mar. 9, 2020) (Hummel, M.J.) (cleaned
up). Thus, one place an ALJ can look to analyze this issue is to other
opinions in the record that examine the overall severity of a claimant’s
mental impairments in the relevant functional area. Tamara M. v. Saul,
2021 WL 1198359, at *9 (N.D.N.Y. Mar. 30, 2021 (Hummel, M.J.) (rejecting
similar argument about time off-task and absenteeism where ALJ contrasted
treating provider’s conclusions of “marked” limitations in these areas with
“mild to moderate” findings by other providers). Another place an ALJ can
10 As the Vocational Expert opined at the hearing, being off-task more than 15% of an
eight-hour day and missing more than one day of work per month would make a claimant
“unemployable.” R. at 62.
look is to a claimant’s activities of daily living, which sometimes shed light on
the ability to make and keep a routine and/or a daily schedule. Cf. Coger v.
Comm’r of Soc. Sec., 335 F. Supp. 3d 427, 436 (W.D.N.Y. 2018).
The ALJ examined all of these avenues. First, the ALJ correctly noted
that both Dr. Jorgensen and PA Cardinal’s off-task and absenteeism findings
appear to be ipse dixits rather than supported with a clear record-based
explanation. Second, as discussed at length supra, the ALJ applied the
“special technique” earlier in his sequential analysis to reach a series of
reasonable, legally supportable conclusions about the relatively “mild” mental
limitations caused by plaintiff’s bipolar disorder. Third, the ALJ contrasted
Dr. Jorgensen and PA Cardinal’s off-task and absenteeism findings with
plaintiff’s self-reported ability to perform a fairly wide range of activities of
daily living, including homeschooling her son. R. at 21–22.
The ALJ relied on these and other factors to formulate an RFC that
limited plaintiff to sedentary work with additional mental limitations, such
as requiring only the ability to understand and follow simple instructions and
complete simple tasks, to have no interaction with the public, and to work
only in positions with little change in a daily work routine. Courts have held
that the inclusion of these kind of mental restrictions in an RFC finding are
sufficient to account for a claimant’s limitations in the ability to perform
activities within a schedule and to maintain regular attendance. Andrea N.,
2020 WL 1140512, at *5—*6 (collecting cases). Accordingly, this argument
will also be rejected.
IV. CONCLUSION
The ALJ applied the correct legal standards and supported his written
decision with substantial evidence in the record.
Therefore, it is
ORDERED that
1. The Commissioner’s motion for a judgment on the pleadings is
GRANTED;
2. Plaintiff's motion for a judgment on the pleadings is DENIED;
3. The Commissioner’s final decision is AFFIRMED; and
4. Plaintiff's complaint is DISMISSED.
The Clerk of the Court is directed to enter a judgment accordingly and
close the file.
IT IS SO ORDERED.
Dated: August 17, 2021 DIG! Tage
Utica, New York.
21 -