“[T]he ALJ cannot ‘pick and choose’ evidence in the record that supports his conclusions.”
How later courts described this case
- “[T]he ALJ cannot ‘pick and choose’ evidence in the record that supports his conclusions.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LISA MARIE S.,
Plaintiff,
Vv.
No. 5:20-CV-975
COMMISSIONER OF SOCIAL SECURITY, (CFH)
Defendant.
APPEARANCES: OF COUNSEL:
Olinsky Law Group HOWARD D. OLINSKY, ESQ.
250 South Clinton Street, Suite 210
Syracuse, New York 13202
Attorneys for plaintiff
Social Security Administration MOLLY CARTER, ESQ.
J.F.K. Federal Building,
15 New Sudbury Street, Rm. 625
Boston, Massachusetts 02203
Attorneys for defendant
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUN-DECISION AND ORDER’
Lisa Marie S.? (“plaintiff’) brings this action pursuant to 42 U.S.C. § 405(g)
seeking review of a decision by the Commissioner of Social Security (“the
Commissioner”) denying her application for disability insurance benefits. See Dkt. No. 1
' Parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. §
636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 72.2(b), and General Order 18. See Dkt. No. 7.
2 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's last name by initial only.
(“Compl.”). Plaintiff moves for reversal and remand for the determination of benefits.
See Dkt. No. 13. The Commissioner opposes the motion. See Dkt. No. 14. For the
following reasons, the Commissioner’s decision is affirmed.
° I. Background
On February 14, 2017, plaintiff filed a Title XVI application for supplemental
security income. See T. at 164.° Plaintiff alleged a disability onset date of January 1,
2014. See id. The Social Security Administration (“SSA”) denied plaintiff's claim on
April 13, 2017. See id. at 76-79. Plaintiff requested a hearing, see id. at 84, anda
hearing was held on November 8, 2018, before Administrative Law Judge (“ALJ”)
Gretchen Mary Greisler. See id. at 27-61. On April 17, 2019, the ALJ issued an
unfavorable decision. See id. at 10-20. On June 22, 2020, the Appeals Council denied
plaintiff's request for review. See id. at 1-5. Plaintiff commenced this action on August
21,2020. See Compl.
Il. Legal Standards
A. Standard of Review
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),
3 “T.” followed by a number refers to the pages of the administrative transcript filed by the Commissioner.
See Dkt. No. 10. Citations to the administrative transcript refer to the pagination in the bottom, right-hand
corner of the page, not the pagination generated by CM/ECF.
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, 985-86 (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) (per curiam) (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..,
m| Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotations marks, citation, and
emphasis 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, 80
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)(E). Disability is defined as the “inability to engage
in 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
o 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 t
him or her based upon age, education, and work experience. See id. § 423(d)(2)(A).
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]
m| 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.
If 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
5 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.
Berry, 675 F.2d at 467 (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)
I
(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. ld. (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 February 14, 2017, her
application date. See T. at 12. At step two, the ALJ found that plaintiff had the followin
severe impairments: “status post valvular replacement, Coumadin therapy, arrythmia,
aortic stenosis, depressive disorder, anxiety disorder, history of substance abuse,
obesity, and migraine headache[s.]” 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 13. The ALJ considered Listings 12.04 for depressive, bipolar,
and related disorders; and 12.06 for anxiety and obsessive-compulsive disorders. See
id. The ALJ found that plaintiff's mental impairments resulted in: “moderate restriction[s]
in understanding, remembering or applying information; moderate difficulties in
interacting with others; moderate difficulties in maintaining concentration, persistence or
pace; and moderate difficulties in adapting or managing oneself.” Id. The ALJ further
found that because plaintiff did not have at least two “marked” limitations or one
“extreme” limitation, “the ‘paragraph B’ criteria [we]re not satisfied” and because the
“record does not establish that [plaintiff] has only marginal adjustment,” the “paragraph
criteria were not satisfied. Id. at 14.
Before reaching step four, the ALJ concluded that plaintiff retained the residual
functional capacity (“RFC”) to perform light work as defined in 20 CFR 416.967(b)
except
[she] can tolerate no more than moderate levels of noise . . . and should
avoid work outdoors in bright sunshine and work with bright or flickering
lights, such as would be experienced in welding or cutting metals. The
claimant can occasionally stoop, balance, crouch, kneel, crawl and climb
in stairs and ramps. The claimant cannot climb ladders, ropes or scaffolds
or work at unprotected heights or in close proximity to dangerous
machinery. The claimant can perform work which does not require more
than simple, short interactions with supervisors and coworkers and no
more than incidental contact with the public; and, although the claimant
can work in proximity with others, the tasks perform[ed] should not require
working in conjunction with others, and should predominantly involve
working with objects rather than people. The claimant can perform simple,
routine and repetitive tasks in a work environment free of fast-paced
production requirements and involving only simple, work-related decisions.
The claimant must work in a stable setting where little change occurs in
terms of the tools used, the processes employed or the setting itself, and
change, where necessary, is introduced gradually.
T. at 14-15. At step four, the ALJ determined that plaintiff was unable to perform
relevant past work. See id. at 18. At step five, considering the plaintiff's age, education,
work experience, and RFC, the ALJ concluded that there were jobs that existed in
5 significant numbers in the national economy that plaintiff could perform. See id. Thus,
the ALJ determined that plaintiff had “not been under a disability, as defined in the
Social Security Act, since February 14, 2017, the date the application was filed[.]’ Id. at
19.
IV. Arguments*
. Plaintiff argues that “[t]he ALJ’s mental RFC determination is not supported by
substantial evidence because the ALJ failed to properly weigh the mental health opinion
evidence, including treating and examining opinion evidence highly supportive of
disability.” Dkt. No. 13 at 3. Specifically, plaintiff contends that the ALJ did not afford
enough weight to plaintiff's treating therapist Janet Atkinson, LCWS-R, despite her
findings being supported by objective medical evidence and corroborated by treating
and consultative physicians’ opinions. See id. at 17-19. The Commissioner argues that
the ALJ afforded appropriate weight to the medical providers’ opinions and her RFC
determination is supported by substantial evidence. See Dkt. No. 14.
4 The Court's citations to the parties’ briefs refer to the pagination generated by CM/ECF at the pages’
headers.
V. Discussion
A plaintiffs 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) (citation omitted)). “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.” Id. (citing 20 C.F.R. § 404.1545(a)).
“Ultimately, ‘[a]ny impairment-related limitations created by an individual’s response to
demands of work . . . must be reflected in the RFC assessment.” Hendrickson v.
Astrue, No. 5:11-CV-927 (ESH), 2012 WL 7784156, at *3 (N.D.N.Y. Dec. 11, 2012)
(quoting Titles Il & XVI: Capability to Do Other Work-The Medical-Vocational Rules As
Framework for Evaluating Solely Nonexertional Impairments, Social Security Rulings
(“SSR”) 85-15, 1985 WL 56857, at *6 (1985)). 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). A mental health “RFC assessment process requires ‘a more detailed
assessment by itemizing various functions contained in the broad categories found in
paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of
Impairments ....” Linda E. v. Saul, No. 3:19-CV-357 (NAM), 2020 WL 1875671, at *8
(N.D.N.Y. Apr. 15, 2020) (quoting Titles Il & XVI: Assessing Residual Functional
Capacity in Initial Claims, SSR 96-8P, 1996 WL 374184, at *4 (July 2, 1996)).
“Part and parcel to the RFC determination is the ALJ’s review of the medical
opinion evidence ... .” Dumas v. Comm’r of Soc. Sec., No. 7:13-CV-1099 (GTS/TWD),
2015 WL 1403342, at *13 (N.D.N.Y. Mar. 26, 2015). “Under the treating physician rule,
the medical opinions of a claimant’s treating physician are generally given more weight
than those of other medical professionals.” Id. at *8. “An ALJ may refuse to consider
| the treating physician’s opinion controlling only if he is able to set forth good reason for
doing so.” Saxon v. Astrue, 781 F. Supp. 2d 92, 102 (N.D.N.Y. 2011). “[M]edical
opinions’ are defined as ‘statements from acceptable medical sources that reflect
judgments about the nature and severity of [a claimant’s] impairment(s), including [his o
her] symptoms, diagnosis, prognosis, what [he or she] can still do despite
impairment(s), and [his or her] physical or mental restrictions.” Leonard W. v. Saul, No.
m| 5:18-CV-00993 (DNH/CFH), 2020 WL 896904, at *4 (N.D.N.Y. Feb. 25, 2020), report
and recommendation adopted, 2020 WL 1169400 (N.D.N.Y. Mar. 11, 2020) (alterations
in original) (quoting 20 C.F.R. § 404.1527(a)(1)). “Acceptable medical sources” include
licensed physicians (medical or osteopathic doctors) psychologists, optometrists,
podiatrists, and speech-language pathologists. 20 C.F.R. § 404.1513(a)(1)-(5)
(effective Sept. 3, 2013 to Mar. 26, 2017). Additionally, “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.” Baszto v. Astrue, 700 F. Supp. 2d 242, 249 (N.D.N.Y. 2010). “The opinions
of consultative examiners . . . may constitute substantial evidence where[] ... [they are
supported by the medical evidence in the record.” Frawley v. Colvin, No. 5:13-CV-1567
(LEK/CFH), 2014 WL 6810661, at *9 (N.D.N.Y. Dec. 2, 2014).
“The regulations note that, ‘[i]n addition to evidence from acceptable medical
sources [the Commissioner] may also use evidence from other sources to show the
severity of [a claimant’s] impairment(s) and how it affects [his or her] ability to work.”
Leonard W., 2020 WL 896904, at *4 (alteration in original) (quoting 20 C.F.R.
§ 404.1513(d)). “Opinions from medical sources that are not considered acceptable
| medical sources are important and should be evaluated on key issues such as
impairment severity and functional effects.” Saxon, 781 F. Supp. 2d at 103 (citations
and internal quotation marks omitted). “Social workers are defined as ‘other sources’.”
Id.; see Titles Il & XVI: Considering Opinions & Other Evidence from Sources Who Are
Not "Acceptable Med. Sources" in Disability Claims; Considering Decisions on Disability
by Other Governmental & Nongovernmental Agencies, SSR 06-03P, 2006 WL 2329939
m| (Aug. 9, 2006). “In weighing the opinions of ‘other sources’, the ALJ must use the same
factors for the evaluation of the opinions from ‘acceptable medical sources’ enumerated
in 20 C.F.R. 404.1527(d).” Saxon, 781 F. Supp. 2d at 104 (citing Canales v. Comm’r of
Soc. Sec., 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010)). “The ALJ is free to conclude
that the opinion of a licensed social worker is not entitled to any weight, [but], the ALJ
must explain that decision.” Id. Moreover, “[b]Jased on the particular facts of a case,
Such as length of treatment, it may be appropriate for an ALJ to give more weight to a
non-acceptable medical source than a treating physician.” Id. (citations omitted). “[A]n
ALJ’s RFC need not perfectly correspond with one single medical opinion[.]” Sarah C.
v. Comm’'r of Soc. Sec., No. 5:19-CV-1431 (FJS), 2021 WL 1175072, at *20 (N.D.N.Y.
Mar. 29, 2021).
10
This Court has explained “that the ALJ was obligated to give some consideration
and weight to [the social worker’s] opinion in light of his qualifications and familiarity with
the [p]laintiff.” Lint v. Astrue, No. 1:07-CV-0479 (NAM/VEB), 2009 WL 2045679, at *9
(N.D.N.Y. July 8, 2009). This Court determined that an “appropriate level” of weight
was given to the plaintiff's social worker therapist where the ALJ “appear[ed] to have
o incorporated [the social worker’s] concerns regarding [the] [p]laintiff’s social interaction
skills by recognizing [the] [p]laintiff's limited ability to interact with the public and
incorporating that limitation into his residual functional capacity analysis.” Id.
Additionally, it was appropriate for the ALJ to reject the extent of the social worker’s
conclusion that it would be “hard to imagine [the plaintiff] being able to work in most any
situation[]” because the state agency physician opined that the plaintiff “was only
Moderately limited with regard to her activities of daily living, social functioning, and
ability to maintain concentration, persistence, and pace.” Id. at *7; see also Richards v.
Colvin, No. 3:12-CV-1086 (FJS), 2015 WL 1472039, at *5 (N.D.N.Y. Mar. 31, 2015)
(affirming the ALJ’s decision that the plaintiffs “bipolar disorder would moderately limit
her ability to perform a number of tasks, where that physician’s statements conflict with
her own treatment notes and was directly contradicted by the expert physician’s
m| Opinion.”).
“[A]n ALJ’s conclusion need not perfectly correspond with any of the opinions of
the medical sources cited in his decision, however ‘when an ALJ credits only portions of
a medical source opinion, the ALJ must explain why other portions of the opinion were
rejected.” Paula W. v. Comm’r of Soc. Sec., No. 8:18-CV-659 (MAD/ATB), 2019 WL
5150078, at *10 (N.D.N.Y. Aug. 28, 2019), report and recommendation adopted sub
11
nom. 2019 WL 4564859 (N.D.N.Y. Sept. 20, 2019) (citations omitted). An ALJ’s
explanation for the RFC determination, in light of the weight given to the various medica
opinions, was insufficient for the Court to glean the ALJ’s rationale where the ALJ
afforded the plaintiff's treating psychiatrist's opinion “evidentiary weight” but “chose not
to incorporate certain limitations[.]” Id. at *10-11. Additionally, the ALJ relied on the
| state agency expert’s opinion “based on its consistency with the ‘longitudinal record,’
which necessarily included the in-depth, thorough treatment records and opinion
provided by treating psychiatrist ....” Id. at*11. However, the state agency
physician’s opinion was contradicted by the treating psychiatrist’s “in some significant
ways, and the ALJ failed to provide an explanation reconciling these conflicts.” Id. The
Court noted that “[o]ther [] courts within the Second Circuit have held that a marked
m| limitation does not necessarily constitute an inability to perform work, and have affirmed
decisions denying benefits in cases where the record contains an opinion that the
claimant has a marked limitation in performing a work related function.” Id. (citing Davis
v. Comm’'r of Soc. Sec., No. 17-CV-6804P (MWP), 2019 WL 1870814, at *3 (W.D.N.Y.
Apr. 26, 2019); Terri G. v. Comm'r of Soc. Sec., No. 3:18-CV-0066 (CFH), 2019 WL
1318074, at *9 (N.D.N.Y. Mar. 21, 2019)). Nevertheless, the Court determined that the
ALJ relied on the “treating physician's opinion finding marked limitations in multiple
functions” and the failure to explain how the RFC accounted for these limitations
constituted reversible error. Id.
This Court has also remanded where an “ALJ’s failure to explain why he chose
not to incorporate certain limitations set forth in the medical source statement despite
explicitly affording great weight to [the] opinion le[ft] the ALJ’s otherwise thorough
12
decision lacking the clarity necessary to enable th[e] Court to determine whether the
ALJ’s findings [were] supported by substantial evidence.” Lawrence W. v. Comm’r of
Soc. Sec., No. 5:17-CV-0877 (TWD), 2018 WL 4509490, at *8 (N.D.N.Y. Sept. 18,
2018). Although “a lack of explanation is not error where the reviewing court can
determine the underlying rationale[,]” the ALJ failed to explain how the plaintiff's ability
to “prepare simple meals . . ., attend to his personal care, travel independently and ride
his bicycle every day, play video games, perform ‘all chores’ around the house, and
engage in landscaping . . . ‘translated to the ability to perform the mental demands of
substantial gainful work in a typical competitive workplace environment.” Id. (quoting
Coyle v. Comm’r of Soc. Sec., No. 5:17-CV-0924 (WBC), 2018 WL 3559073, at *7
(N.D.N.Y. July 24, 2018) (citations omitted)). Similarly, where “the ALJ gave ‘little
m}| weight’ to every source that actually examined [the plaintiff], and she gave ‘some
weight, but not great weight’ to the two nonexamining consultative evaluations[]”
remand was warranted because only one source found that the plaintiff would “be
capable of the full range of unskilled work[,]” and it was based on an incomplete review
of the record. Bleil v. Colvin, No. 3:15-CV-1492 (LEK/ATB), 2017 WL 1214499, at *7
(N.D.N.Y. Mar. 31, 2017). Rather, “[e]very other source found greater mental limitations
| than those accounted for in the ALJ’s mental RFC[]’ and “[t]he lack of supporting
medical source opinion alone casts serious doubt on the ALJ’s RFC determination.” Id.
at *7-8; see also Hall v. Colvin, No. 1:15-CV-01189 (LEK/ATB), 2016 WL 6989806, at *7
(N.D.N.Y. Nov. 29, 2016) (remanding where the ALJ determined the treating social
worker's opinion was “internally inconsistent” but “[t]he alleged inconsistency disappear
when one realizes” that the plaintiff's “panic attacks” were triggered by crowds;
13
therefore, the plaintiff seeming normal and capable of performing basic tasks in front of
her therapist was an insufficient basis to give the opinion less weight).
a. Relevant Medical Opinions
1. Janet Atkinson, LCWS-R
Plaintiff argues that Ms. Atkinson’s opinions should have been afforded greater
o weight because they are supported by objective evidence, and substantiated by
opinions from Gregory Max, M.D., Amy McCune, P.A., and Jeanne Shapiro, M.D. See
Dkt. No. 13 at 18-19. The ALJ discounted Ms. Atkinson's opinion, in part, because the
record reflected that plaintiff had less anxiety as she “gets further away from the
opiates”; therefore, Ms. Atkinson’s conclusion that plaintiff's “substance abuse does not
affect her ability to function is not consistent with counseling records[.]’ T. at 16.
Plaintiff contends that “[t]his reference is irrelevant, and a mischaracterization of the
evidence,” because Ms. Atkinson's “opinion was created after any prior substance
abuse issue had been resolved.” Dkt. No. 13 at 19-20. Finally, plaintiff argues that the
ALJ relied on records showing that plaintiffs mental health was stable or improving with
medication but ignored the records that indicate otherwise. See id. at 17-18. The
Commissioner argues that because Ms. Atkinson is not an acceptable medical source,
her opinion is not a “medical opinion” and the ALJ was not required to give it controlling
weight or special deference, and that regardless of the weight given, the ALJ’s decision
is supported by substantial evidence. Dkt. No. 14 at 7.
The ALJ gave “limited weight” to Ms. Atkinson’s July 2018 opinions because
“they are not supported by the objective evidence in record, including counseling
records from [her] office.” T. at 16 (citing id. at 357-60). The ALJ explained that
14
“updated counseling records . . . indicated that [plaintiff] was fully oriented with normal
gait and station, well-groomed appearance, normal psychomotor activity, good eye
contact, cooperative behavior, neutral affect, normal speech, coherent thought process,
intact association, appropriate perception, good cognition, average intelligence, averag
fund knowledge, and fair insight and judgment[.]” Id.; see id. at 385. Moreover, “[w]ith
| the exception of changes in her mood and affect, counseling records routinely described
[plaintiff's] mental status evaluation was within normal range[.]’ Id. at 16; see id. at 397,
403, 421, 428. “These clinical findings are inconsistent with the significant functional
limitations identified by LCWS-R Atkinson... .” Id. at 16. The ALJ also emphasized
Ms. Atkinson’s treatment note stating that plaintiff “was able to advocate for her
needsf[,]” and determined that the record showed that plaintiff's “medications were
working well to control her depression and anxiety[.]” Id.; see id. at 384, 390. Finally,
the ALJ noted that “Atkinson’s conclusion that [plaintiff's] substance abuse does not
affect her ability to function is not consistent with counseling records, which showed that
[plaintiff] had less anxiety as she ‘gets further away from the opiates[.]” Id. at 16 (citing
id. at 595).
Ms. Atkinson’s 2018 medical source statement indicated that plaintiff “continues
to build her skills to manage anxiety symptoms. | do not believe she is ready to
maintain skills to have success with work.” T. at 358. In identifying plaintiff limitations,
Ms. Atkinson opined that plaintiff would be “unable to meet competitive standards” in
remembering work-like procedures; maintaining attention for two hours, regular
attendance, and punctuality; sustaining an ordinary routine without special supervision;
working in coordination with others; making simple, work-related decisions; completing
15
a normal workday without interruptions from her symptoms; accepting and responding
appropriately to instructions and changes in a routine work setting; dealing with normal,
work-related stress; traveling in unfamiliar places; and using public transportation. Id.
Ms. Atkinson also determined that plaintiff would be “seriously limited, but not
precluded” from understanding, remembering, and carrying out very short and simple
instructions: asking simple questions or requesting assistance; getting along with
coworkers or peers; being aware of normal hazards and taking appropriate precautions;
maintaining socially appropriate behavior; and adhering to basic standards of neatness
and cleanliness. Id.
Throughout Ms. Atkinson’s treatment record, plaintiff was oriented, well groomed,
cooperative, had a coherent thought process, and wore appropriate attire. See T. at
409, 413, 417-18, 429, 437, 441, 454-55, 464, 468, 508, 530. Plaintiff's judgment
and insight varied from poor to good, but was most often fair. See id. During her initial
examination, plaintiff stated that she had a history of substance abuse and was using
suboxone to help her quit using other drugs. See id. at 529. Ms. Atkinson noted that
plaintiff was concurrently receiving substance abuse treatment at Farnham Family
Services (“Farnham”), that she was making good use of group therapy there, and after
leaving Farnham, she returned for more treatment. See id. at 412, 453, 509, 663. The
record also reflects that plaintiff later stopped using suboxone and was “very proud of
herself. She is also down to minimal Xanax and working on stopping.” Id. at 439.
Plaintiff had also asked for a different counselor at Farnham and advocated “for keeping
the water on in her home.” Id. at 384, 396.
16
Contrary to the ALJ’s contention that Ms. Atkinson concluded that plaintiff's
substance abuse “does not affect her ability to function,” Ms. Atkinson opined that the
following limitation “would affect [plaintiff's] ability to work at a regular job on a sustained
basis: [Plaintiff's] treatment is frequent at this time, Substance Abuse Treatment, MH
Therapy, Medication Management[.]” T. at 359 (emphasis added). In her medical
| source statement, Ms. Atkinson answered “No” to the question: “In your opinion would
the current physical and mental limitations remain if the patient stopped using drugs
and/or alcohol?” Id. at 360. In her explanation she stated, “[plaintiff] has stopped
substance abuse at this time. Anxiety symptoms, Depression symptoms continue to be
a barrier. Continues to require frequent contact with treatment.” Id.
Plaintiff argues that the ALJ erred because Ms. Atkinson’s opinions are
m}| Supported by Gregory Max, M.D., Amy McCune, P.A., and Dr. Shapiro. Dkt. No. 13 at
19. Dr. Max opined that plaintiff had no limitations in maintaining basic standards of
personal hygiene and grooming; moderate limitations in understanding, remembering,
and carrying out instructions, and maintaining socially-appropriate behavior; and was
“very limited” in maintaining attention and concentration, making simple decisions, and
functioning in a work setting at a consistent pace. T. at 618.° The ALJ gave Dr. Max’s
| Opinion limited weight because his opinions were inconsistent with updated treatment
records or unsupported by objective evidence in the record, and he “failed to provide
any objective clinical findings to support his conclusions.” Id. at 16. The ALJ explained
that “[a]lthough | have accounted for the no limitations and moderate limitations
identified by Dr. Max by limiting the claimant to simple work activity with limited social
5 It is unclear whether Dr. Max marked “no evidence of limitations[,]” “moderately limited[,]’ or both, as it
relates to plaintiff's ability to interact appropriately with others. T. at 618.
17
interactions in a work environment free of fast-paced production requirements, | find tha
the remainder of the limitations he identified are not supported by the objective evidenc
in the record that | previously cited.” Id.© As explained in more detail below, Dr. Shapir
opined that plaintiff had no limitations in understanding and applying simple directions,
in using reasoning and judgment in work-related situations, or in being aware of hazard
and taking precautions, but mild limitations with complex directions, mild-to-moderate
limitations in sustaining an ordinary routine and concentration, moderate limitations in
maintaining personal hygiene, and moderate-to-marked limitations in regulating
emotions. See id. at 317.
As plaintiff points out, PA McCune opined that in May 2018, plaintiff's depression
and anxiety were “not optimal.” Dkt. No. 13 at 19 (citing T. at 446). The ALJ did not
@xplicitly discuss PA McCune’s treatment records or explain any weight given. See T.
at 16-18.” However, in explaining the objective evidence that “support[s] the
established” RFC,° the ALJ cited to PA McCune’s treatment notes to show that “[w]ith
the exception of changes in her mood and affect, which supports the existence of a
‘severe’ mental impairment, counseling records routinely described the claimant’s
mental status evaluations within normal range[.]” Id. at 17 (citing id. at 392-94, 403-05,
421-23, 448-449). Moreover, the ALJ pointed to PA McCune’s treatment records that
8 As the Commissioner correctly points out, plaintiff does not take issue with the ALJ’s consideration of
Dr. Max’ opinion. See Dkt. No. 14 at 14.
7 Plaintiff does not take issue with the ALJ’s consideration of PA McCune’s treatment records. See Dkt.
No. 13.
8 These records are not located in the section where the ALJ explains the weight give to Ms. Atkinson’s
opinion; however, the Court may still consider them in determining if the ALJ’s decision is based on
substantial evidence. See Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109, 112 (2d Cir. 2010)
(summary order) (“[T]he absence of an express rationale for an ALJ’s conclusions does not prevent us
from upholding them so long as we are ‘able to look to other portions of the ALJ’s decision and to clearly
credible evidence in finding that his determination was supported by substantial evidence.””) (citation
omitted).
18
indicated that plaintiff “reported that Xanax was helpful” and “her medications were
working well to control her depression and anxiety[.]” Id. at 18 (citing id. at 420, 390).
The ALJ discounted Ms. Atkinson’s opinion, in part, because of her “conclusion
that the claimant’s substance abuse does not affect her ability to function is inconsistent
with counseling records[.]” T. at 16. This misstates the record as Ms. Atkinson stated
the opposite and explained that plaintiff's substance abuse would affect her ability to
work. See id. at 359-60; see also Hall, 2016 WL 6989806, at *8 (“Thus, this basis for
giving little weight to [the] assessment is not supported by the evidence in the record.”).
The ALJ also discounted Ms. Atkinson’s opinions because “they are not supported by
the objective evidence in the record[.]” T. at 16. However, as plaintiff points out, some
of Dr. Max’s, PA McCune’s, and Dr. Shapiro’s records are consistent with Ms.
Atkinson’s conclusions—they each opine that plaintiff was struggling with her anxiety
and depression and had limitations in her abilities to interact with others, and
understand and carry out instructions. See id. at 421, 443, 446, 618. Nevertheless, PA
McCune’s records indicated that plaintiff's anxiety and depression were improving with
medication; Dr. Shapiro found that plaintiff had no limitations with understanding simple
instructions; and Dr. Max found that plaintiff had no limitations in maintaining personal
m| hygiene. See id. at 317, 420, 618. Therefore, although portions of the various opinions
support plaintiff's argument, there is evidence in the record inconsistent with Ms.
Atkinson’s opinions, including the other providers’ opinions. See T. at 16; see Rosado,
805 F. Supp. 147 at 153 (remand is not required “even where substantial evidence may
support the plaintiff's position and despite that the court’s independent analysis of the
19
evidence may differ from the [Commissioner’s][,]’ so long as there is substantial
evidence supporting the ALJ’s conclusions).
The ALJ explained that “[w]ith the exception of changes in [plaintiff's] mood and
affect, counseling records routinely described the claimant’s mental status as within
normal range.” T. at 16. Those same records note that plaintiff's “[dJepression and
anxiety [were] elevated[,]’ and she continued to feel sad, afraid, and stuck about her
home life. Id. at 421, 426. Moreover, the ALJ noted that plaintiff stated that “Xanax was
helpful[.]” Id. at 18. The record the ALJ cites to support this contention reads: “Long-
standing history of anxiety and depression. Numerous prior medication trials, including
but not limited to Ativan, Xanax, Porzac, Zoloft, Celexa, Cymbalta, Seroquel, Ambien.
Patient reported to have stated that Xanax is the only medicine that works for her.” Id.
at 4220.9 This same record also states that plaintiff's “[djepression and anxiety [were]
elevated,” and her dosage of Venlafaxine was increased as a result. Id. at 421. The
record reflects that plaintiff was weening herself off of Xanax. See id. at 439; cf. Stacy
D. v. Comm'r of Soc. Sec., 358 F. Supp. 3d 197, 210 (N.D.N.Y. 2019) (“[T]he ALJ
cannot ‘pick and choose’ evidence in the record that supports his conclusions.”)
(citations omitted). Although the most effective medication changed over time, plaintiff's
m| most recent mental health records from September 2018 reflected that her medications
were “working well to control [plaintiff's] depression and anxiety[.]” T. at 390.
The record further supports the ALJ’s conclusions where it reflects that plaintiff
had consistently fair to good insight, judgment, and cognition; was well groomed, and
9 The notation that plaintiff reported that “Xanax is the only medicine that works for her[,]” is in plaintiff's
“past psychiatrist HX detail” on numerous records from “BHS Oswego” and was not a reflection of her
mental status or working medications at the time of her treatments. T. at 402, 420, 431, 459, 471.
20
wore appropriate attire; and was oriented and cooperative. See T. at 413, 417-18, 429,
437, 441, 454, 464, 468-69, 508, 530. Although Ms. Atkinson opined that plaintiff would
be seriously limited but not precluded from asking simple questions or requested
assistance, as the ALJ noted, plaintiff had recently advocated for her needs in keeping
her water on. See id. at 16, 358, 384. Additionally, plaintiff had asked for a new
counselor at Farnham when she felt “she just could not say some things to the one she
had.” See id. at 396. The ALJ does not need to “explicitly explain[] every detail of why
he .. . considered particular evidence persuasive or not persuasive.” Dale A. M. v.
Comm'r of Soc. Sec., No. 5:19-CV-1150 (FJS), 2021 WL 1175160, at *23 (N.D.N.Y.
Mar. 29, 2021) (citation and quotation marks omitted). The ALJ was also not required t
give Ms. Atkinson’s opinions controlling weight as she is not an “acceptable medical
Source,” but was required to explain her reasons for giving “limited weight” to the
opinion. Saxon, 781 F. Supp. 2d at 103; see Lawrence, 2018 WL 4509490, at *8 (givin
“great weight” to an opinion but failing to incorporate limitations); Paula W., 2019 WL
5150078, at *10 (giving treating physician's opinion “evidentiary weight” but declining to
incorporate limitations or explain rationale) (emphasis added).
Although the ALJ relied on a mischaracterization of the record, the ALJ noted the
records reflecting plaintiffs poor mood, judgment, and insight, alongside those
indicating an improvement in plaintiff's mental health through treatment and medication.
See T. at 16-18. That there is evidence supporting plaintiff's perspective is insufficient
for remand where the Court can glean the ALJ’s rationale. See Bonet ex rel. T.B. v.
Colvin, 523 F. App’x 58, 59 (2d Cir. 2013) (Summary order) (The question before the
Court is not “whether there is substantial evidence supporting the appellant’s view[,]” bu
21
“whether substantial evidence supports the ALJ's decision.”) (emphasis omitted). As
the ALJ’s RFC is supported by substantial evidence, remand is not warranted.
2. Jeanne Shapiro, M.D.
Plaintiff argues the ALJ failed to give appropriate weight to Dr. Shapiro where her
opinion “was well-supported by both her clinical interview and concurrent mental status
| examination,” and the failure to incorporate the opinion requires remand because Dr.
Shapiro's opinion is “preclusive of work.” Dkt. No. 13 at 22; 21. The Commissioner
argues that the ALJ appropriately determined that Dr. Shapiro’s opinion was
inconsistent with her own examination findings; therefore, giving partial weight to her
opinion was warranted. See Dkt. No. 14 at 16.
The ALJ concluded that Dr. Shapiro’s medical source statement supported “the
| conclusion that [plaintiff] has the ability to perform simple work.” T. at 16. The ALJ
gave Dr. Shapiro’s opinions “partial evidentiary weight” because although she examined
plaintiff, “her conclusions are not fully consistent with the results of her own
examination.” Id. at 16 (citing id. at 316-17). In explaining her RFC determination, the
ALJ noted that “[a]t the consultative evaluation, with the exception of constricted affect,
sad mood, and poor insight and judgment, the claimant’s mental status evaluation was
m|normall.]” Id. at 17 (citing id. at 316-17). In determining whether plaintiff's impairments
met a Listing, the ALJ recounted Dr. Shapiro’s findings that plaintiff had no limitations in
understanding, remembering, or applying simple directions and instructions; was
corporative; had an intact memory, attention, and concentration; and had moderate to
marked limitations for regulating emotions, controlling behavior, and maintaining well-
being. See id. at 13-14. The ALJ explained that although Dr. Shapiro found a
22
moderate-to-marked limitation in maintaining plaintiff's well-being, she “reported to a
wide-range of daily activities.” Id. at 14. In creating plaintiff's RFC, the ALJ explained
plaintiff's “broad range of daily activities” as cooking, cleaning, doing laundry, going
shopping, doing chores, and engaging in leisure activities. Id. at 18.
During Dr. Shapiro’s examination, plaintiff stated that she was “anxious and
depressed for no particular reason[]” and had “difficulty concentrating and remembering
things.” T. at 315. Plaintiff reported no drug history. See id. Plaintiff also reported that
she could dress, bathe, and groom herself independently, “only changes her clothes
when she has an appointment[,]” and feels she “has no reason to get up, bathe, cook,
or do anything.” Id. at 317; 315. Dr. Shapiro found plaintiff to be appropriately dressed,
and “[hJer personal hygiene and grooming was good with the exception that her hair
sorely needed to be combed.” Id. at 316. Plaintiff was responsive, cooperative,
oriented, and had a coherent thought process. See id. Plaintiff appeared sad, her
affect was restricted, and she had poor insight and judgment. See id. Plaintiff's
attention and concentration were intact; she was able to do counting and simple
calculations; her recent and remote memory skills were intact; and “[s]he was able to
recall three objects immediately and after four minutes and restate five digits forward
| and four digits backward.” Id. Dr. Shapiro opined that plaintiff had no limitations in
understanding, remembering, or applying simple directions and instructions, but had
mild limitations in the same for complex directions and instructions, “given that she
complains of member and concentration deficits.” Id. at 316. Dr. Shapiro also opined
that plaintiff had no limitations in reasoning and judgment with work-related decisions
and had mild-to-moderate limitations in sustaining concentration and performing a task
23
at a consistent pace. See id. Additionally, plaintiff appeared to have mild-to-moderate
limitation sustaining an ordinary routine and regular attendance at work, as well as
moderate limitations in maintaining personal hygiene and wearing appropriate work
attire. See id. Finally, Dr. Shapiro determined that plaintiff had moderate-to-marked
limitations regulating emotions, controlling behavior, and maintaining well-being. See
o id. Dr. Shapiro stated that the “[rJesults of the examination appear to be consistent with
psychiatric problems, and this may significantly interfere with the claimant's ability to
function on a daily basis.” Id. at 317. Moreover, plaintiff's “prognosis is fair’ but she
“appears to be incapable of managing money because she spends money and does not
remember doing it.” Id. at 318.
The ALJ summarily asserts that “Dr. Shapiro's opinion is not entitled to greater
weight, because her conclusions are not fully consistent with the results of her own
examination[,]” but fails to identify and explain the inconsistences. T. at 16. The ALJ
relied on plaintiff's activities of daily living to support her RFC determination and to
discount Dr. Shapiro's findings. See id. at 14, 18. It is unclear how plaintiff's ability to
cook and clean equate to Dr. Shapiro’s findings being inconsistent with her conclusions
or how they reflect plaintiff's ability to perform work-related functions. See Lawrence
| W., 2018 WL 4509490, at *5; see also SSR 85-15, 1985 WL 56857, at *4 (“The basic
mental demands of competitive, remunerative, unskilled work include the abilities (on a
sustained basis) to understand, carry out, and remember simple instructions; to respond
appropriately to supervision, coworkers, and usual work situations; and to deal with
changes in a routine work setting.”). However, Dr. Shapiro’s conclusion that plaintiff
had moderate limitations in maintaining personal hygiene or being able to dress for wor
24
is inconsistent with her findings that plaintiff appropriately dressed for the examination,
had good hygiene, and reported that she was able to dress, bathe, and groom
independently. See T. at 315-17. Additionally, Dr. Shapiro found that plaintiff had mild
limitations in understanding complex directions because of plaintiff's “complain[t]s of
memory and concentration deficits” but objectively noted that plaintiff was able to
o perform simple counting and calculations and had an intact memory. Id. at 317; 316.
The remainder of Dr. Shapiro’s findings appear consistent with her conclusions,
including her opinion that plaintiff has no limitations in understanding and applying
simple directions; moderate-to-marked limitations regulating emotions, controlling her
behavior, and maintaining her well-being; that her ability to function on a daily basis ma
be significantly impacted; and she cannot manage money. See id. at 317-18; see Hall,
WL 698906, at *8 (The ALJ “should not have manufactured inconsistencies in
determining the weight to be accorded to [the] opinion.”).
Although the ALJ did not explicitly identify the inconsistencies in Dr. Shapiro's
evaluation, the ALJ’s RFC determination reflects most of Dr. Shapiro’s opined
limitations. For example, Dr. Shapiro opined that plaintiff had “mild-moderate limitations
sustaining concentration and performing a task at a consistent pace[,]’ T. at 317, and
the ALJ limited plaintiff to “simple, routine and repetitive tasks in a work environment
free of fast-paced production[.]’ Id. at 14. Additionally, Dr. Shapiro opined that plaintiff
had “mild-moderate limitations sustaining an ordinary routine[,]’ id. at 317, and the ALJ
limited plaintiff to “work in a stable setting where little change occurs . . . and change,
where necessary, is introduced gradually.” Id. at 14-15. No logical bridge can be drawn
between plaintiffs’ ability to cook and clean and her ability to perform work-related
25
functions on a sustained basis; however, the Court can otherwise glean the ALJ's
rationale—that plaintiff had moderate limitations in all four of the relevant categories.
See Lawrence W., 2018 WL 4509490, at *8; compare Bleil, 2017 WL 1214499, at *6
(finding error in the ALJ’s weighing of the medical opinions where the plaintiff's social
worker therapist opined that the limitations would prevent unskilled work, and the
o examining medical consultants found that the plaintiff's “psychiatric and cognitive issues
... May significantly interfere with the claimant’s ability to function on a daily basis.”),
with Ross v. Colvin, No. 13-CV-6332P (MWP), 2015 WL 1189559, at *12 (W.D.N.Y.
Mar. 16, 2015) (finding that the ALJ sufficiently incorporated a physician’s opined
concentration limitations by limiting the plaintiff to “only simple work-related decisions
and maintain[ing] attention and concentration for only two-hour segments.”). Because
m| the ALJ incorporated Dr. Shapiro’s limitations into plaintiff's RFC, remand is not
warranted on this ground.
3. James V. Perrone, Ph.D.
Plaintiff argues that the ALJ gave too much weight to Dr. Perrone’s
“unsubstantiated claims” because Dr. Perrone “clearly had no grasp on [p]laintiff's
condition, and did not even bother to explain his opinion.” Dkt. No. 13 at 23. Plaintiff
argues that Dr. Perrone’s opinion that plaintiffs limitations were “due to her purported
substance abuse issues[]” is inaccurate and based on “pure speculation” because
plaintiff was no longer abusing substances at the time of Dr. Perrone’s report. Id. The
Commissioner argues that the record supports Dr. Perrone’s findings “including
relatively unremarkable objective findings, responsiveness to treatment, and [p]laintiff's
activities.” Dkt. No. 14 at 19.
26
The ALJ gave “significant weight to Dr. Perrone’s opinion, because Dr. Perrone
had an opportunity to review all of the record[,]” and “[a]lthough he is neither an
examining nor a treating physician, [he] is a medical expert in psychology, that provides
him with knowledge, and training, which could reasonably be expected to give him
greater insight into the limitations imposed by [plainitff's] mental limitations.” T. at 15-
“Furthermore, as a medical expert with the [SSA], he has knowledge of [the]
disability program and access to all of the medical evidence of record when he offered
his opinion.” Id. at 16. Based on this opinion, the ALJ found that plaintiff “is capable of
simple work activity with limited social interaction and she should work in an
environment free of fast-paced production requirements involving a stable setting.” Id.
at 15.
Dr. Perrone’s 2019 opinion found that plaintiff had mild limitations in
understanding, remembering, and applying information; concentrating, persisting or
maintaining pace; and adapting or managing oneself; moderation limitations in
understanding, remembering, and carrying out simple instructions; interacting
appropriately with the public, supervisors, and co-workers; and marked limitations in
responding appropriately to usual work situations and to changes in a routine work
m| setting. See T. at 738-42. Dr. Perrone opined that, “[i]n this case | believe that
[plaintiff's] opiate addiction account for the functional limitations reported in the 9f and
14f evaluations.” Id. at 739. However, Document 14f is not a functional report—it
contains a Farnham Family Services Pre-Admission Document for plaintiff's intake into
the drug rehabilitation program, copies of drug screens while she was in the clinic, and
her attendance record for group and individual therapies. See id. at 663-712. To
27
support the opined marked and mild limitations, Dr. Perrone cited “Doc 4f/pgs 4 & 5 □□□ |
evaluations where opiate ab[u]se disorder was reporte[d][.] My analyses are based on
a comprehensive evaluation in 2017. In that evaluation, substance abuse was not
reported.” Id. at 742 (emphasis added). Document 4F is Dr. Shapiro’s 2017
consultative evaluation where substance abuse was not reported. See id. at 314-18. It
/is therefore unclear to which document or evaluation Dr. Perrone is referring when he
reached the aforementioned limitations, which the ALJ does not acknowledge or clarify.
Further, Dr. Perrone stated that he relied on “Doc 9f/pg 2” for the moderate limitations,
and that there was “[nJo information provided in the documentation reviewed” for the
limitations he left blank. Id. at 738. Dr. Perrone explained that
[tIhese ratings are based on a 2017 evaluation by a psychiatric social
worker in 2017. In an earlier 2017 examination by a psychiatrist, these
limitations were not present. The major discrepancy between these two
evaluations in the same year was that the earlier evaluation reported no
substance disorder, while the later one referred to an opiate use disorder.
Id. Document 9F is Ms. Atkinson’s 2018 opinion in which she does not opine about
plaintiff's ability to handle complex instructions or decisions. See id. at 358 (emphasis
added).
Dr. Perrone explained that he believed it was plaintiff's opiate addiction that
| accounted for Ms. Atkinson’s greater opined limitations, but fails to reconcile Dr.
Shapiro's opinions that, with no drug abuse reported, plaintiff appeared unable to
manage money, had problems that “may significantly interfere with [her] ability to
function on a daily basis[,]” and had moderate-marked limitations in regulating emotions,
controlling behavior, and maintaining well-being. Id. at 317, 738-42. Moreover, both Dr.
Shapiro and Ms. Atkinson found that plaintiff was limited in her ability to maintain
28
personal hygiene or “adhere to basic standards of neatness and cleanliness.” Id. at
358; 317. Dr. Shapiro, Ms. Atkinson, and Dr. Perrone opined that plaintiff had
limitations in her ability to concentrate, id. at 739, but the ALJ failed to explain explicitly
how the RFC considers a specific concentration limitation or why one is not warranted.
See id. at 15-16; see, e.g., Ross, 2015 WL 1189559, at *11 (determining that the ALJ
o sufficiently accounted for the plaintiff's limitations in concentration “by including the
limitation that Ross could only sustain attention and concentration for up to two hours at
a time.”).
The Court, however, recognizes that the ALJ’s decision does not need to mirror
any one medical opinion, and “the ALJ is not obligated to reconcile every conflicting
shred of medical testimony[.]’ Bleil, 2017 WL 1214499, at *6 (citations omitted). As
explained, the ALJ accounted for plaintiff's limitations reflected in the various medical
opinions by limiting her to slow pace work with simple and routine tasks, away from
others, that does not involve significant change or decision making. See T. at 14.
Moreover, Dr. Perrone’s opined limitations are extremely similar to Ms. Atkinson’s and
Dr. Shapiro’s; and where they differ, the ALJ sufficiently explained why she gave the
latter opinions less weight. Compare id. at 738-39, 742, with id. at 317, 358; see Paula
m| W., 2019 WL 5150078, at *11 (expressing confusion as to how the ALJ reconciled his
RFC where he gave significant weight to the state agency physician who opined
“considerably less restrictive limitations” than those found by the plaintiff's treating
psychiatrist, but the state agency physician relied on the treating psychiatrist’s opinion).
As such, remand is not warranted on this ground.
29
VI. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby:
ORDERED, that the Commissioner's decision is AFFIRMED; and it is further
ORDERED, that the Commissioner’s motion for judgment on the pleadings (Dkt.
No. 14) is GRANTED, and plaintiff's motion for judgment on the pleadings (Dkt. No. 13)
DENIED; and it is further
ORDERED, that the Clerk of the Court serve copies of this Memorandum-
Decision and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: January 14, 2022
Albany, New York
Ueto berm)
Christian F. Hummel
U.S. Magistrate Judge
30