Schillinger v. Commissioner of Social Security

NOUNRITTHEEDR SNT DAITSETSR DICISTT ORFIC NTE CWO YUORRTK

______________________________________________________________________

JUSTIN S.,1

Plaintiff,

v. 5:20-CV-1575(ATB)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

______________________________________________________________________

JUSTIN M. GOLDSTEIN, ESQ., for Plaintiff

CANDACE LAWRENCE, Special Asst. U.S. Attorney for Defendant

ANDREW T. BAXTER, U.S. Magistrate Judge

MEMORANDUM-DECISION and ORDER

This matter was referred to me, for all proceedings and entry of a final judgment,

pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in

accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.

Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 5).

I. PROCEDURAL HISTORY

Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on or

about January 27, 2017, alleging disability beginning October 1, 2016. (Administrative

Transcript (“T”) at 71, 159-65). His application was denied initially on May 23, 2017.

(T. 71, 91-102). At the request of the plaintiff, Administrative Law Judge (“ALJ”)

1 In accordance with recent guidance from the Committee on Court Administration and Case

Management of the Judicial Conference of the United States, which was adopted by the Northern

District of New York in June 2018 in order to better protect personal and medical information of non-

governmental parties, this Memorandum-Decision and Order will identify the plaintiff using only his

Kenneth Theurer conducted a hearing on October 19, 2018, at which plaintiff and

vocational expert (“VE”) Lavonne Brent gave testimony. (T. 33-70). Immediately after

the hearing, plaintiff moved to amend his alleged onset date to February 1, 2018. (T.

174). In a decision dated November 8, 2018, the ALJ found that plaintiff was not

disabled (T. 10-24), and the Appeals Council denied plaintiff’s request for review on

June 25, 2019 (T. 1-6). Plaintiff commenced an action challenging the decision in the

Northern District of New York. Justin S. v. Comm’r of Soc. Sec., No. 5:19-CV-1055

(ATB). The parties stipulated to a remand, and a stipulation and order of remand was

entered by this court on April 30, 2020. (T. 855-65). In the interim, plaintiff filed a

subsequent claim for disability benefits and the state agency found him disabled as of

November 9, 2018. (T. 766, 859).

On June 25, 2020, the Appeals Council issued a detailed remand order,

identifying the deficiencies in the November 8, 2018 decision and instructing the ALJ

to take certain actions on remand. (T. 857-63). Because plaintiff was subsequently

awarded benefits, the determination on remand was limited to the alleged period of

disability from February 1, 2018 to November 8, 2018. ALJ Theurer once again

presided over the matter, and conducted a supplemental hearing at which he procured

testimony from medical expert Laura E. Hopper, Ph.D. (T. 805-22). A vocational

expert appeared but did not testify. (Id.). On December 17, 2020, ALJ Theurer issued

a decision finding that plaintiff was not disabled during the relevant period. (T. 766-

84).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI

disability benefits must establish that she is “unable to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which

can be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In

addition, the plaintiff’s

physical or mental impairment or impairments [must be] of such severity

that he is not only unable to do his previous work but cannot, considering

his age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy, regardless

of whether such work exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or whether he would be

hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step process, set forth in 20 C.F.R. sections

404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.

First, the [Commissioner] considers whether the claimant is currently

engaged in substantial gainful activity. If he is not, the [Commissioner]

next considers whether the claimant has a “severe impairment” which

significantly limits his physical or mental ability to do basic work

activities. If the claimant suffers such an impairment, the third inquiry is

whether, based solely on medical evidence, the claimant has an impairment

which meets or equals the criteria of an impairment listed in Appendix 1 of

the regulations. If the claimant has such an impairment, the

[Commissioner ] will consider him disabled without considering

vocational factors such as age, education, and work experience . . . .

Assuming the claimant does not have a listed impairment, the fourth

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claimant is unable to perform his past work, the [Commissioner] then

determines whether there is other work which the claimant can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,

416.920. The plaintiff has the burden of establishing disability at the first four steps.

However, if the plaintiff establishes that her impairment prevents her from performing

her past work, the burden then shifts to the Commissioner to prove the final step. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine

whether the correct legal standards were applied and whether substantial evidence

supported the decision. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Brault v.

Soc. Sec. Admin, Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.

2012). It must be “more than a scintilla” of evidence scattered throughout the

administrative record. Id. However, this standard is a very deferential standard of

review “ – even more so than the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.

“To determine on appeal whether an ALJ’s findings are supported by substantial

evidence, a reviewing court considers the whole record, examining the evidence from

both sides, because an analysis of the substantiality of the evidence must also include

that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859

F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its

interpretation of the administrative record for that of the Commissioner, if the record

contains substantial support for the ALJ’s decision. Id. See also Rutherford v.

Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

An ALJ is not required to explicitly analyze every piece of conflicting evidence

in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles

v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ

explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ

cannot “‘pick and choose’ evidence in the record that supports his conclusions.” Cruz

v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.

09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).

III. FACTS

Plaintiff was 30 years old on the date of the October 19, 2018 administrative

hearing. He lived in a mobile home with his wife and two young children. (T. 39).

Plaintiff had an eleventh grade education, with some additional training through

BOCES. (Id.). He had a driver’s license and could operate a vehicle. (Id.).

At the time of the hearing, plaintiff was “on leave” from his part-time job as a

overnight dry food stocker at Walmart, due to back issues. (T. 40). He had worked for

Walmart in various capacities since 2007, however testified that he had been fired, and

rehired, by the company three times. (T. 40, 49–51). He formerly had a job coach. (T.

55-56). After a suicide attempt in August 2016, he was hospitalized for a little over a

week. (T. 43, 52–53). Plaintiff was also in a motor vehicle accident around the same

time. (T. 52). He stopped working full-time for Walmart in 2017, because his

schizophrenia was “getting too bad” and he “couldn’t handle it.” (T. 42). Plaintiff

testified that his depression, schizophrenia, and back condition prevented him from

working. (T. 43). He could not handle social interactions at work, and referenced

having had “plenty of breakdowns” on the job. (T. 49). Plaintiff took medication for

his psychiatric symptoms, including an anti-psychotic injectable. (T. 51–52).

Plaintiff testified that he slept most days and played games on his phone. (T.

46–48). He took care of his young children when his wife was at her part-time job. (T.

46–47). Once a month plaintiff went to the grocery store by himself, which was

“sometimes” difficult for him. (T. 57).

At the December 2, 2020 supplemental hearing, Dr. Laura Hopper testified as to

her review of the medical records in evidence, relative to the February 1, 2018 through

November 8, 2018 period of alleged disability. (T. 814–22). There is a substantial

amount of other medical evidence in the administrative record, which the parties have

summarized in their briefs. Rather than reciting this evidence at the outset, I will

discuss the relevant material in my analysis of plaintiff’s claims.

IV. THE ALJ’S DECISION

In his December 17, 2020 decision, the ALJ first found that plaintiff had not

engaged in substantial gainful activity from February 1, 2018 through November 8,

2018. (T. 769). Next, the ALJ found that plaintiff had the following severe

impairments: degenerative disc disease of the lumbar spine; depression; and

schizophrenia. (Id.). At the third step, the ALJ determined that plaintiff’s impairments

did not meet or medically equal the criteria of any listed impairments in Appendix 1 to

20 C.F.R. Part 404, Subpart P. (T. 769-70).

At step four, the ALJ found that plaintiff had the residual functional capacity to

perform light work, except that plaintiff had the following additional limitations:

he could sit for up to six hours, and stand or walk for

approximately six hours, in an eight-hour day, with normal

breaks; he could occasionally climb ramps or stairs; he was

unable to climb ladders, ropes or scaffolds; and, he could perform

occasional balancing, stooping, kneeling, crouching, and

crawling. The [plaintiff] retained 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. He could relate to and interact

with others to the extent necessary to carry out simple tasks, but

needed to avoid work requiring more complex interaction or joint

effort to achieve work goals. The [plaintiff] could tolerate no

more than occasional contact with coworkers and supervisors, and

he needed to have no more than incidental contact with the

public. The [plaintiff] could handle reasonable levels of simple

work-related stress, in that he could make occasional simple

decisions, directly related to the completion of his tasks, in a

stable, unchanging work environment.2

(T. 771-72).

Next, the ALJ determined that plaintiff had no past relevant work, was a younger

individual, and had a limited education. (T. 777). However, relying on the testimony

of VE Brent, who appeared at the October 19, 2018 administrative hearing, the ALJ

found that there were jobs that existed in significant numbers in the national economy

that plaintiff could perform. (T. 777-79). Accordingly, the ALJ determined that

2The ALJ defined incidental as “more than never and less than occasional; simply put, the

job should not involve direct interaction with the public, but the person does not need to be

isolated away from the public.” (T. 772).

plaintiff was not disabled from February 1, 2018 through November 8, 2018. (T. 779).

V. ISSUES IN CONTENTION

Plaintiff argues that the ALJ failed to follow the remand order issued by the

Appeals Council in (1) ordering a new medical expert opinion instead of recontacting

prior examining and treating sources, and (2) improperly evaluating the medical

opinions of record. (Plaintiff’s Brief (“Pl.’s Br.”) at 10–25) (Dkt. No. 12). Defendant

argues that the ALJ’s actions were not inconsistent with the Appeals Council’s remand

instructions, and that the ALJ properly evaluated the opinion evidence, resulting in an

RFC that was supported by substantial evidence. (Defendant’s Brief (“Def.’s Br.”) at

10–25) (Dkt. No. 15). For the following reasons, this court agrees with the defendant

and will affirm the Commissioner’s decision.

DISCUSSION

VI. MANDATE RULE

A. Legal Standards

There are two “branches” of the law-of-the-case doctrine. One branch is a

nonbinding doctrine that “counsels a court against revisiting its prior rulings in

subsequent stages of the same case absent ‘cogent’ and ‘compelling’ reasons such as

‘an intervening change of controlling law, the availability of new evidence, or the need

to correct a clear error or prevent manifest injustice.’ ” Ali v. Mukasey, 529 F.3d 478,

490 (2d Cir. 2008) (quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)).

“The doctrine’s second branch is the nondiscretionary ‘mandate rule,’ which flows from

the hierarchical decision-making systems it concerns.” Frank K. v. Comm’r of Soc.

Sec., 371 F. Supp. 3d 163, 170 (D. Vt. 2019) (citing In re Coudert Bros. LLP, 809 F.3d

94, 101 n.2 (2d Cir. 2015)). Under the mandate rule, “where a case has been decided by

an appellate court and remanded, the court to which it is remanded must proceed in

accordance with the mandate and such law of the case as was established by the

appellate court.” Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., 762 F.3d 165, 175

(2d Cir. 2014).

There is an “administrative version” of the mandate rule contained in the

applicable SSA regulations, which provides that, upon remand, an ALJ “shall take any

action that is ordered by the Appeals Council and may take any additional action that is

not inconsistent with the Appeals Council’s remand order.” 20 C.F.R. §§ 404.977(b),

416.1477(b). Accordingly, reviewing courts have found that failure to comply with the

Appeals Council’s remand order may be grounds for remand. See Dommes v. Colvin,

No. 3:15-CV-977 (GTS), 2016 WL 7104900, at *4-5 (N.D.N.Y. Dec. 6, 2016)

(remanding for calculation of benefits based on ALJ’s failure to comply with District

Court order and Appeals Council’s remand order to follow treating physician rule);

Mortise v. Astrue, 713 F. Supp. 2d 111, 123-24 (N.D.N.Y. 2010) (remanding based on

the ALJ’s failure to comply with the Appeals Council’s remand order to follow the

treating physician rule); Gorman v. Astrue, No. 08-CV-0251(NAM), 2009 WL

4884469, at *10 (N.D.N.Y. Dec. 10, 2009) (ALJ’s failure to comply with the Appeals

Council’s remand order was error worthy of remand).

However, where an issue is not “‘precluded by remand order or the judgment of

the court in the prior judicial review, that issue may be decided differently . . . on

remand if the Commissioner applies the correct legal standard and substantial evidence

in the record as a whole supports the decision.’” Gusky v. Astrue, 954 F. Supp. 2d 180,

190 (W.D.N.Y. 2013) (quoting Thompson v. Astrue, 583 F. Supp. 2d 472, 475

(S.D.N.Y. 2008) (quoting Lucas v. Astrue, No. 07-2143, 2008 WL 474286, at *4 (D.

Kan. Jan. 29, 2008)). See also Marvin v. Colvin, No. 3:15-CV-74(GLS/CFH), 2016

WL 2968051, at *2 (N.D.N.Y. May 20, 2016) (in the absence of limiting instructions or

court findings, the Commissioner may revisit on remand any issues relating to the

application for benefits) (citing Thompson, 583 F. Supp. 2d at 475).

B. Application

Plaintiff argues that the ALJ’s request for a medical expert’s opinion was

inconsistent with the Appeals Council’s remand order. (Pl.’s Br. at 12). Although

plaintiff concedes that the remand order did not prevent the ALJ from obtaining a new

medical opinion, he contends that the ALJ was “first required to request clarification

from the authors of the existing medical opinions, which was not done.” (Id.). For the

following reasons, the court disagrees that the ALJ’s actions impermissibly exceeded

the scope of the June 2020 remand order.

contained in ALJ Theurer’s November 8, 2018 decision. This included the ALJ’s

insufficient evaluation of NP Dowling’s opinion, along with his failure to consider NP

Dowling’s documented clinical findings in weighing the opinion. (T. 859–60). The

Appeals Council also found that the ALJ failed to adequately consider the requisite

regulatory factors, such as consistency with the record as a whole, in affording Dr.

Noia’s opinion “great weight.” (T. 860). The Appeals Council concluded that “Further

evaluation of opinion evidence and the [plaintiff’s] maximum [RFC] is needed.” (Id.).

The remaining, relevant portions of the Appeals Council’s remand order state as

follows:

Upon remand, the [ALJ] will:

• Give further consideration to the [plaintiff’s] maximum

residual functional capacity during the entire period at

issue and provide rationale with specific references to

evidence of record in support of assessed limitations [ ]. In

so doing, evaluate the treating and non-treating source

opinions . . . and explain the weight given to such opinion

evidence. As appropriate, the [ALJ] may request the

treating and non-treating sources provide additional

evidence and/or further clarification of their opinions and

medical source statements about what the [plaintiff] can

still do despite the impairments [ ].

. . .

In compliance with the above, the [ALJ] will offer the [plaintiff]

the opportunity for a hearing, take any further action needed to

complete the administrative record and issue a new decision[.]

(Id.) (emphasis added).

At base, the remand order required the ALJ to give further consideration to

plaintiff’s RFC, and cite to specific evidence of record in support of his assessed

limitations. The ALJ was also specifically instructed to re-evaluate the existing opinion

evidence of record, and explain the weight afforded to each. However, the court is not

persuaded that the language of the remand order required the ALJ to recontact these

sources before “taking any further action needed to complete the administrative record”

– i.e. request an updated medical opinion. The Appeals Council’s order clearly gave

the ALJ discretion to recontact the existing medical sources as he deemed necessary to

properly evaluate the opinion evidence and plaintiff’s RFC, as evidenced by use of the

terms “as appropriate,” and “may.” See James C. v. Comm’r of Soc. Sec., No.

5:19-CV-1206 (TWD), 2020 WL 6445907, at *7 (N.D.N.Y. Nov. 3, 2020) ([T]he

Appeals Council’s remand order qualifies its directions to the ALJ through the use of

terms such as ‘[i]f necessary,” and ‘if warranted.’ [ ] Therefore, the bulk of the Appeals

Council’s directions merely call for [the ALJ] to exercise her discretion regarding

evaluation of the opinion and other evidence and the development of the record, so long

as she complied with the applicable regulations.”).

Plaintiff specifically argues that the ALJ should have recontacted NP Dowling, in

light of the ALJ’s reasoning that “Nurse Dowling offered little explanation in support

was not an acceptable medical source, and that his restrictive limitations were markedly

inconsistent with his treatment records during the relevant period of alleged disability.

(T. 776). In any event, the court finds no error in the ALJ’s discretionary decision to

not recontact NP Dowling, who was not an acceptable medical source under the

applicable regulations, and instead seek a opinion from an acceptable medical source,

Dr. Hopper. See Curley v. Comm’r of Soc. Sec. Admin., 808 F. App’x 41, 44 (2d Cir.

2020) (rejecting argument that ALJ should have obtained medical opinion from

plaintiff’s treating provider where plaintiff’s “only treating provider during the relevant

time period was a nurse practitioner and thus was not an acceptable medical source for

such an opinion” under the applicable regulations).

Moreover, and as the Commissioner points out, it was not unreasonable nor

improper for the ALJ to request an updated medical opinion, considering that NP

Dowling’s opinion was the only one rendered during the applicable period of disability.

See 20 C.F.R. §§ 404.1527(e); 404.1513a(b)(2) (“Administrative law judges may also

ask for medical evidence from expert medical sources. Administrative law judges will

consider this evidence under [the medical-opinion-evaluation regulation applicable to

the claimant’s DIB or SSI claim based on the application filing date] as appropriate.”);

Cur v. Comm’r of Soc. Sec., No. 19-CV-01039, 2020 WL 6488741, at *6 (W.D.N.Y.

Nov. 4, 2020)(“An ALJ may properly request and consider the opinion of a medical

opinion from Dr. Hopper was not inconsistent with the Appeals Council’s remand

order, which explicitly authorized the ALJ to “take any further action needed to

complete the administrative record.” (T. 860). Accordingly, remand is not warranted

on the basis that the ALJ failed to comply with the Appeals Council’s instructions, and

the court will proceed to determine whether the ALJ properly weighed the opinion

evidence before him on remand.

VII. RFC EVALUATION/TREATING PHYSICIAN

A. Legal Standards

1. RFC

RFC is “what [the] individual can still do despite his or her limitations.

Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work

activities in an ordinary work setting on a regular and continuing basis. . . .” A “regular

and continuing basis” means eight hours a day, for five days a week, or an equivalent

work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2

(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)

(quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v. Berryhill, No. 5:17-CV-

00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018); Tankisi v.

Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.

Supp. 3d 349, 361 (N.D.N.Y. 2016).

facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s

subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R.

§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)

(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.

Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL 587459, at *8 (N.D.N.Y. Feb 13, 2019);

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An ALJ must specify the functions

plaintiff is capable of performing, and may not simply make conclusory statements

regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241, 267

(N.D.N.Y. 2010); Martone v. Apfel, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler,

728 F.2d 582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183, Stephens v.

Colvin, 200 F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v. Comm’r of Soc. Sec.,

307 F. Supp. 2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must also include a

narrative discussion, describing how the evidence supports the ALJ’s conclusions,

citing specific medical facts, and non-medical evidence. Natashia R. v. Berryhill, No.

3:17-CV-01266 (TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing

SSR 96-8p, 1996 WL 374184, at *7).

2. Weight of the Evidence/Treating Physician

In making a determination, the ALJ weighs all the evidence of record and

carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL

are not “medical issues,” but are “administrative findings.” The responsibility for

determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL

374183, at *2. These issues include whether the plaintiff’s impairments meet or equal a

listed impairment; the plaintiff’s RFC; how the vocational factors apply; and whether

the plaintiff is “disabled” under the Act. Id.

In evaluating medical opinions on issues that are reserved to the Commissioner,

the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The

ALJ must clearly state the legal rules that he applies and the weight that he accords the

evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL 3776382, at *2

(S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324, 2012 WL

3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).

A treating source’s opinion on the nature and severity of a claimant’s

impairments is entitled to controlling weight where it is “well-supported by medically

acceptable clinical and laboratory diagnostic techniques” and “not inconsistent with the

other substantial evidence” of the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

This is known as the “treating physician rule.” In Estrella v. Berryhill, the court

emphasizes the importance of a treating source’s opinion in cases concerning mental

impairments, as “cycles of improvement and debilitating symptoms [of mental illness]

are a common occurrence[.]” Estrella v. Berryhill, 925 F.3d 90, 97 (2d Cir. 2019)

If an ALJ decides not to give the treating source’s records controlling weight,

then he must explicitly consider the four 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, 925 F.3d at 95-96 (quoting Burgess

v. Astrue, 537 F. 3d 117, 120 (2d Cir. 2008)). Should an ALJ assign less than

controlling weight to a treating physician’s opinion and fail to consider the above-

mentioned factors, this is a procedural error. Estrella, 925 F.3d at 96. It is impossible

to conclude that the error is harmless unless a “searching review of the record . . .

assures us that the substance of the treating physician rule was not traversed[.]” Id.

B. Application

The remainder of plaintiff’s contentions challenge the ALJ’s re-evaluation of the

mental opinion evidence of record, particularly the ALJ’s failure to afford controlling

weight to NP Dowling’s opinion, and the resulting RFC. In addition to NP Dowling’s

September 4, 2018 Medical Source Statement (“MSS”) (T. 760–762), the record

contains the May 23, 2017 opinion of state agency consultant Hillary Tzetzo, M.D. (T.

76–77); the May 17, 2017 consultative examination report of Dennis M. Noia, Ph.D.

(T. 341–44); and the August 6, 2020 medical statement of Laura Hopper, Ph.D. (T.

1008–10), along with Dr. Hopper’s testimony from the supplemental administrative

In his MSS, NP Dowling indicated that he treated plaintiff “initially” on August

29, 2016, and that plaintiff was “currently . . . seen every [four to eight] weeks and

receives [long-acting injectable] anti-psychotic medication every eight weeks.” (T.

760). NP Dowling identified plaintiff’s diagnosis of paranoid schizophrenia, along

with several of his associated symptoms including blunt, flat, or inappropriate affect;

poverty of content of speech; difficulty thinking or concentrating; pathological

dependence; paranoia; thinking disturbances; delusions; illogical thinking; and oddities

of thought, perception, speech or behavior. (T. 760). With respect to plaintiff’s

functional limitations, NP Dowling opined that plaintiff was either unable to meet

competitive standards, or had no useful ability to function, in the majority of the listed

mental abilities and aptitudes needed to do unskilled work. (T. 761). He did not

provide an explanation, or support for, these restrictive limitations, despite being

prompted to do so. (Id.). NP Dowling found plaintiff to be similarly limited in the

listed mental abilities and aptitudes needed to do particular types of jobs, and

commented that plaintiff’s “persistent ideas of reference and persecutory delusions

preclude most situations involving contact with co-workers and supervisors.” (T. 762).

Last, NP Dowling opined that plaintiff’s mental impairment and/or treatment would

cause him to be absent from work more than four days per month. (Id.).

The ALJ explicitly discussed NP Dowling’s MSS in his decision, noting the

opinion “some evidentiary weight,” to the extent it was consistent with objective

findings of record, including observations of constricted affect and psychomotor

retardation. (Id.). However, the ALJ cited several reasons for rejecting portions of the

MSS as it related to the relevant period of alleged disability. At the outset, the ALJ

recognized that although NP Dowling had treated plaintiff, he was not an acceptable

medical source, and therefore not a treating source entitled to controlling weight. (Id.).

This was not an improper consideration. See Genier v. Astrue, 298 F. App’x 105, 108

(2d Cir. 2008) (“In Genier’s case, many of the key medical opinions cited . . . were

those of a physician’s assistant and a nurse practitioner – and not a physician. As such,

the ALJ was free to discount the assessments accordingly in favor of the objective

findings of other medical doctors.”). However, at the same time it is well recognized

that “although a nurse practitioner’s opinion is not entitled to the same weight as a

treating physician, these opinions are entitled to some extra consideration, when the

nurse practitioner has a treating relationship with the patient.” Beckers v. Colvin, 38 F.

Supp. 3d 362, 371 (W.D.N.Y. 2014) (quotation omitted); see also Kohler v. Astrue, 546

F.3d 260, 268 (2d Cir. 2008) (finding that the ALJ was not required to give controlling

weight to the plaintiff’s nurse practitioner, but should have given her opinion some

consideration where the nurse practitioner was the only medical professional available

to the plaintiff for long stretches of time). In this case, the ALJ did not outright reject

proceeded with his evaluation of the MSS.

Specifically, the ALJ considered that NP Dowling’s opinion was inconsistent

with plaintiff’s treatment history as it pertained to the relevant period of disability. (T.

776). See, e.g., Ross v. Colvin, No. 6:13-CV-00755 (NAM), 2014 WL 5410327, at *17

(N.D.N.Y. Oct. 21, 2014) (nurse practitioner’s opinion was “entitled to lesser weight”

because it was “inconsistent with the record as a whole”). He also observed that NP

Dowling’s own treatment records documented a generally “positive response to mental

health treatment,” and did not support the restrictive limitations identified. (T. 776).

To plaintiff’s point, the ALJ could have engaged in a more in-depth analysis of the

specific treatment records he believed to undermine NP Dowling’s opinion. However,

the ALJ did engage in this analysis, to some extent, elsewhere in his decision (T. 774),

and the evidence of record allows the court to glean the ALJ’s rationale on this issue.

In particular, the record reflects that in November 2017, plaintiff began receiving

injections of the anti-psychotic medication, Aristada. (T. 425–26). As of February 13,

2018, he had received his third dose of the drug, and a “mini-mental status”

examination performed by NP Dowling revealed that plaintiff’s affect was “much more

spontaneous and congruent,” and that although plaintiff was “dressed inappropriately”

for the weather, his mood was improved and he displayed little depression or anxiety.

(T. 417). Plaintiff’s “thinking appear[ed] spontaneous,” and although his “insight

“den[ied] paranoid ideas or hallucinations.” (Id.). NP Dowling noted that plaintiff’s

“posture and gait [were] unremarkable,” and his “speech [ ] spontaneous[.]” (T. 418).

Plaintiff spoke “clearly.” (Id.). Plaintiff was noted to be taking his medications as

prescribed, with no reported side effects. (Id.).

Plaintiff presented for therapy and/or medical management visits on an

approximate monthly basis throughout the relevant period of alleged disability, with

consistently similar mental examination results. On March 13, 2018, he denied hearing

voices, and reported less paranoia. (T. 412). On April 30, 2018, plaintiff presented for

his next injection. (T. 407). He was alert and oriented, reporting paranoia and a lack of

energy. (Id.). He denied hallucinations. (Id.).

On May 15, 2018, plaintiff reported that his marital relationship was “going

good,” and he was sleeping eight to nine hours a day and had more energy. (T. 402).

He displayed an improved mood, little depression or anxiety, and denied paranoid ideas

or hallucinations. (Id.). Plaintiff returned for another injection on June 15, 2018. (T.

400). He was alert and oriented and denied hallucinations, but mentioned an increase

in symptoms when he “forgets to come in.” (Id.). It was noted that plaintiff was not

reliable to scheduled appointments, and “could experience more effective symptom

control . . . through regular attendance to medication appointments.” (T. 397).

Nevertheless, plaintiff reported feeling “better on the injection than when he was off the

On July 26, 2016, plaintiff presented for his next injection. (T. 395). He was

alert and oriented, and reported visual hallucinations that generally began before his

next dose of medication was due. (Id.). On August 15, 2018, he was reported to have

some obsessive worries about either himself or others having a car accident. However,

plaintiff was able to handle a verbal exercise addressing these worries, “indicating

further improvement.” (T. 390). Plaintiff clarified that he no longer had paranoid

thoughts that people were going to kill him. (Id.). His affect was spontaneous and

congruent, mood improved, and he displayed little depression or anxiety. (Id.). His

insight remained limited, but thinking was spontaneous, and he denied paranoid ideas

or hallucinations. (Id.). Plaintiff’s speech was spontaneous and he spoke quite clearly.

(Id.).

Plaintiff received his next injection on September 7, 2018, and was noted to be

alert and oriented, tolerating the procedure without incident. (T. 1320-21). On

September 25, 2018, plaintiff was noted to be “more verbal in sessions,” but “still

difficult to engage at times.” (T. 1318). Plaintiff reported that his daughter was his

greatest accomplishment in life, and that she put him in a better mood. (Id.).

On October 19, 2018, plaintiff received his next injection. (T. 1309–10). He

inquired about medication for attention deficit hyperactivity disorder, and reported

difficulty with concentration and attention, especially when driving. (T. 1312). He also

[his] lawyer.” (T. 1312). Nevertheless, his mini-mental status exam revealed an

improved mood with little depression or anxiety, spontaneous thinking with limited

insight, the absence of paranoid ideas or hallucinations, and spontaneous and clear

speech. (Id.).

In sum, although NP Dowling’s treatment records indicate some ongoing mental

health symptoms, a review of the medical record shows that the ALJ’s evaluation of the

nurse practitioner’s opinion was supported by substantial evidence. The parties do not

dispute that plaintiff had a “severe” mental impairment that diminished his capacity for

daily functioning. However, the ALJ found that NP Dowling’s treatment notes did not

support the extreme limitations identified in his MSS. This was a proper basis for the

ALJ to discount the opinion of a treating source opinion, and as noted above, there was

“more than a mere scintilla” of evidence that supported the ALJ’s finding in this regard.

Richardson v. Perales, 402 U.S. 389, 401(1971); see also Domm v. Colvin, 579 F.

App’x 27, 28 (2d Cir. 2014) (ALJ may discount the opinion of a treating physician

when the opinion is internally inconsistent with his own treatment notes, other medical

evidence in the record, and the plaintiff’s testimony) .

As for the remaining opinion evidence of record, the ALJ appropriately discussed

his reasons for the weight afforded to each. Of particular relevance was the medical

statement prepared by Dr. Hopper, the only acceptable medical source who issued an

medical records, Dr. Hopper indicated that plaintiff had no limitations understanding,

remembering, or carrying out simple instructions; or with the ability to make judgments

on simple work related decisions. (T. 1008). She opined that plaintiff had mild

limitations for understanding and remembering complex instructions, carrying out

complex instructions, and in his ability to make judgements on complex work-related

decisions. (Id.). She opined that there was no indication of difficulties interacting with

others, and that plaintiff exhibited “mild concentration difficulties.” (T. 1009). Dr.

Hopper cited to specific treatment records in evidence as support for her assessment.

(T. 1008-09).

Dr. Hopper was apparently provided an expanded record after she prepared her

medical statement, prior to the supplemental hearing. (T. 816). At the hearing, she

assessed plaintiff to have somewhat greater mental limitations. Dr. Hopper noted that

objective findings concerning cognitive slowing and perceived paranoia set forth in the

expanded record supported greater, but no more than moderate, limitations in

interacting with others; the ability to concentrate, persist or maintain pace; and adapting

or managing oneself. (T. 817–20). She opined that plaintiff retained a mild impairment

for understanding, remembering, and applying information. (T. 820).

The ALJ afforded Dr. Hopper’s opinion “substantial evidentiary weight,” finding

it to be more consistent with the overall record. (T. 775). The ALJ recognized Dr.

plaintiff’s next injection date approached. (T. 776). However, he also noted Dr.

Hopper’s testimony that plaintiff’s symptoms were reduced significantly once he

received the medication, indicating a moderate degree of impairment. (Id.). He found

Dr. Hopper’s opinion to be supported with detailed explanation, and her hearing

testimony consistent with the record as a whole. (Id.). Last, the ALJ considered that

Dr. Hopper was a mental health expert well versed in agency standards and evidentiary

requirements. (Id.).

Plaintiff argues that the ALJ erred in giving more weight to the opinion of a non-

examining agency consultant than to those of the treating and/or examining sources.

However, the regulations permit the opinions of non-examining consultants like Dr.

Hopper’s to override the opinions of examining sources, when the former are more

consistent with and supported by the evidence than the latter. See Hancock v. Barnhart,

308 Fed. App’x 520, 521 (2d Cir. 2009) (opinion of non-examining medical expert may

be given more weight than opinion of treating physician and may constitute substantial

evidence in support of ALJ determination); see also Diaz v. Shalala, 59 F.3d 307, 313

n.5 (2d Cir. 1995) (“[T]he regulations . . . accord less deference to treating physicians

whose opinions are not supported by other evidence . . . and . . . permit the opinions of

non-examining sources to override treating sources’ opinions provided they are

supported by evidence in the record.” (citation omitted)); SSR 96-6p, 1996 WL 374180,

consultants . . . may be entitled to greater weight than the opinions of treating or

examining sources.”).

Here, the ALJ explained his decision to give greater weight to Dr. Hopper’s

opinion than that of NP Dowling, and the ALJ’s conclusion that Dr. Hopper’s opinion

was more consistent with, and supported by, the medical evidence of record is in itself

supported by substantial evidence. Primarily supporting the ALJ’s evaluation of Dr.

Hopper’s opinion are NP Dowling’s own treatment records from the relevant period of

alleged disability. These treatment records generally reflected that plaintiff’s affect was

more spontaneous and congruent, his mood was improved with little depression or

anxiety, his thinking was spontaneous, he denied paranoid ideas or hallucinations, and

although his insight remained limited, he exhibited no psychomotor retardation or

agitation. (T. 390, 403, 412–13, 417–18, 1304, 1312). Other treatment notes from the

relevant period reflect NP Dowling’s examination findings, including that plaintiff

denied depression, hallucinations, mood changes or schizophrenia (T. 553, 556, 563,

566, 573); was euthymic, alert, and fully oriented (T. 554, 557, 564, 567); had clear and

coherent speech with logical thought processes (T. 364, 367, 370, 373); and denied

symptoms such as anxiety, confusion, depression, memory loss, nervousness, racing

thoughts, or sleep disturbance (T. 366, 369, 372).

Moreover, the ALJ did not solely rely on Dr. Hopper’s opinion, as the plaintiff

analysis of the record as a whole. For example, the ALJ considered the opinion of Dr.

Noia, who upon mental examination assessed plaintiff to have no more than mild

impairments. (T. 341–44, 776). The ALJ afforded Dr. Noia’s opinion “some

evidentiary weight,” because he had the benefit of examining the plaintiff and due to

his benign examination findings. (T. 776). However, the ALJ also noted that Dr. Noia

only examined plaintiff once, and that his opinion predated the period at issue. (Id.).

Notably, the ALJ determined that the record as a whole supported greater limitations

than those set forth by Dr. Noia, and assessed the same in his RFC determination.

Substantial evidence supports the ALJ’s evaluation of Dr. Noia’s opinion, and there

was no error in the ALJ assessing an RFC more restrictive than the opinion of the

consulting examiner. See McLeod v. Berryhill, No. 1:17-CV-00262, 2018 WL

4327814, at *3 (W.D.N.Y. Sept. 11, 2018) (consultative examiner’s opinion supported

RFC finding, noting that “ ‘the fact that the ALJ’s RFC assessment did not perfectly

match [an examining medical source]’s opinion, and was in fact more restrictive than

that opinion, is not grounds for remand.’ ”) (quotation omitted); Baker v. Berryhill, No.

1:15-CV-00943, 2018 WL 1173782, at *2 (W.D.N.Y. Mar. 6, 2018) (“Where an ALJ

makes an RFC assessment that is more restrictive than the medical opinions of record, it

is generally not a basis for remand.” (internal quotation marks and citations omitted)).

The ALJ also considered the opinion of state agency medical consultant Dr.

functioning. (T. 76–77). The ALJ afforded Dr. Tzetzo’s opinion some evidentiary

weight, but recognized several reasons for rejecting portions of her opinion. He noted

that Dr. Tzetzo did not have an opportunity to personally examine the plaintiff, and that

her opinion predated the period at issue. (T. 777). The ALJ also cited to evidence in

the record suggesting that, contrary to Dr. Tzetzo’s opinion, plaintiff had problems

interacting with others, along with signs of “cognitive slowing.” (Id.). Accordingly,

the ALJ concluded that greater limitations than those opined by Dr. Tzetzo were

appropriate to adequately portray plaintiff’s mental functioning abilities during the

period at issue. (Id.).

Thus, contrary to plaintiff’s argument, the ALJ appropriately evaluated the

medical opinions of record to reach an RFC determination that was supported by

substantial evidence, including the medical opinions of record, plaintiff’s treatment

records during the period of alleged disability, and plaintiff’s testimony as to his own

activities. “In other words, although the ALJ rejected some portions of the treating

[provider’s] opinions, the RFC is nonetheless consistent with the record as a whole.”

Amanda S. v. Saul, No. 5:18-CV-00473 (NAM), 2019 WL 3927452, at *11 (N.D.N.Y.

Aug. 20, 2019) (citing Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir. 2013) (upholding

ALJ’s RFC determination where he “rejected” physician’s opinion but relied on

physician’s findings and treatment notes).

determination does not account for the moderate limitations recognized by the ALJ in

his evaluation of the medical evidence. At the outset, the Second Circuit has held that

moderate limitations in work related functioning do not significantly limit, and thus

prevent, a plaintiff from performing unskilled work. See Zabala v. Astrue, 595 F.3d

402, 410 (2d Cir. 2010) (“None of the clinicians who examined [plaintiff] indicated that

she had anything more than moderate limitations in her work-related functioning, and

most reported less severe limitations.”); Whipple v. Astrue, 479 Fed. App’x 367, 370

(2d Cir. 2012) (consultative examiners’ findings that plaintiff'’s depression caused

moderate limitations in social functioning ultimately supported the ALJ’s determination

that plaintiff was capable of performing work that involved simple tasks and allowed

for a low-stress environment); see also Wells v. Colvin, 87 F. Supp. 3d 421, 435–36

(W.D.N.Y. 2015) (finding that moderate limitations, even in the basic mental functions

of unskilled work, are not inconsistent with the ability to perform unskilled work).

Moreover, this is not a case in which the ALJ simply accounted for plaintiff’s

moderate limitations by generally limiting him to “simple, routine work.” See, e.g.,

Karabinas v. Colvin, 16 F. Supp. 3d 206, 215 (W.D.N.Y. 2014) (“When making

findings about a claimant’s RFC, an ALJ many not avoid conducting the ‘detailed

assessment’ referenced in SSR 96-p ‘by merely indicating that the claimant can

perform, simple, unskilled work.’ ”). Instead, the ALJ set forth a detailed RFC

accounting for plaintiff's limitations in understanding and memory, concentration and

attention, attendance, social interaction, and the ability to handle work related stress.

(T. 772). Thus, the court finds no basis for remand based on the ALJ’s implementation

of plaintiff's mental functional limitation into his RFC determination.

WHEREFORE, based on the findings above, it is

ORDERED, that the Commissioner’s decision is AFFIRMED, and plaintiff's

complaint is DISMISSED, and it is

ORDERED, that judgment be entered for the DEFENDANT.

Dated: February 2, 2022 A how ve Baten

Andrew T. Baxter

U.S. Magistrate Judge

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