# Fiaschetti v. Commissioner of Social Security

> District Court, N.D. New York · May 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10314865

## Case

- **Court:** District Court, N.D. New York
- **Decided:** May 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10314865

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

ROCCO F.,
Plaintiff,
v. 6:21-CV-0015
(DJS)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

APPEARANCES: OF COUNSEL:
NICHOLAS, PEROT, SMITH MICHAEL J. WELCH, ESQ.
Attorney for Plaintiff
219 First Street, P.O. Box 720
Liverpool, NY 13088
U.S. SOCIAL SECURITY ADMIN. MOLLY CARTER, ESQ.
OFFICE OF REG’L GEN. COUNSEL
Attorney for Defendant
J.F.K. Federal Building - Room 625
15 New Sudbury Street
Boston, MA 02203
DANIEL J. STEWART
United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER!
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g), seeking review of a
decision by the Commissioner of Social Security that Plaintiff was not disabled for

' Upon Plaintiff’s consent, the United States’ general consent, and in accordance with this District’s General Order
18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73. See Dkt. No. 6 & General Order 18.

purposes of disability insurance benefits. Dkt. No. 1. Currently before the Court are
Plaintiffs Motion for Judgment on the Pleadings and Defendant’s Motion for Judgment
on the Pleadings. Dkt. Nos. 14 & 20. For the reasons set forth below, Plaintiff's Motion
for Judgment on the Pleadings is denied and Defendant’s Motion is granted. The
Commissioner’s decision is affirmed.
I. RELEVANT BACKGROUND
A. Factual Background
Plaintiff was born in 1977. Dkt. No. 12, Supplemental Transcript (“Suppl. Tr.”),
p. 1949. Plaintiff reported that he completed eighth grade. /d. at p. 1950. He has past
work experience as a security guard and as a pharmacy delivery driver. /d. at pp. 1953-
“| 1954. Plaintiff alleges disability due to anxiety, bipolar, depression, and diabetes. Dkt.
No. 10, Administrative Transcript (“Tr.”), p. 279.
B. Procedural History
Plaintiff applied for disability and disability insurance benefits in May 2017. Tr.
at p. 136. He alleged a disability onset date of August 27, 2015. Tr. at p. 138. Plaintiff's

application was initially denied on September 13, 2017, after which he timely requested
a hearing before an Administrative Law Judge (“ALJ”). Tr. at pp. 144-151, 160-164.
Plaintiff appeared at a hearing before ALJ Gretchen Mary Greisler on April 25, 2019, at
which he and a vocational expert testified. Suppl. Tr. at pp. 1943-1981. A subsequent
hearing was held on January 24, 2020, during which a vocational expert and Plaintiff
testified. Tr. at pp. 80-95. On January 31, 2020, the ALJ issued a written decision

finding Plaintiff was not disabled under the Social Security Act. Tr. at pp. 22-33. On
November 12, 2020, the Appeals Council denied Plaintiff's request for review, making
the ALJ’s decision the final decision of the Commissioner. Tr. at pp. 1-6.
C. The ALJ’s Decision
In her decision, the ALJ made the following findings of fact and conclusions of
law. First, the ALJ found that Plaintiff meets the insured status requirements of the
Social Security Act through December 31, 2015 and that he had not engaged in
substantial gainful activity since August 27, 2015, the alleged onset date. Tr. at p. 24.
Second, the ALJ found that Plaintiff had the following severe impairments: diabetes,
obesity, spinal disorder, atrial fibrillation, obstructive sleep apnea, neurodevelopmental
“| disorder, attention-deficit hyperactivity disorder, depressive disorder, anxiety disorder,
mood disorder, and learning disorder. Tr. at pp. 24-25. Third, the ALJ found that
Plaintiff does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1
(the “Listings”). Tr. at pp. 25-27. Fourth, the ALJ found that Plaintiff has the residual
functional capacity (“RFC”) to perform light work with the following restrictions:

[Plaintiff] cannot climb ladders, ropes or scaffolds, and can
only occasionally stoop, balance, crouch, crawl, kneel and
climb stairs and ramps. He also should not work at
unprotected heights or in close proximity to dangerous
machinery. [Plaintiff] requires a brief, one-to-two minute
change in position after sitting, standing or walking for one
hour, but retains the ability to remain on task. He can
frequently reach in all directions. [Plaintiff] cannot tolerate
concentrated exposure to respiratory irritants. Mentally,

[Plaintiff] can understand, follow and retain simple
instructions, perform simple tasks, and can_ tolerate
occasional changes in the work setting.
Tr. at p. 27.
Fifth, the ALJ found that Plaintiff had past relevant work characterized by the
vocational expert as a security guard and “outside deliverer,” but that he was unable to
perform this work. Tr. at p. 31. Sixth, the ALJ found that Plaintiff was categorized as
a “younger individual” on the date the application was filed. Jd. Seventh, the ALJ found
that there was work existing in significant numbers in the national economy that Plaintiff
could perform. /d. The ALJ, therefore, concluded that Plaintiff is not disabled. Tr. at
pp. 32-33.
Il. RELEVANT LEGAL STANDARDS
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health &
Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s

determination will be reversed only if the correct legal standards were not applied, or it
was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied
correct legal principles, application of the substantial evidence standard to uphold a
finding of no disability creates an unacceptable risk that a claimant will be deprived of
the right to have her disability determination made according to the correct legal

principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that
amounts to “more than a mere scintilla,” and has been defined as “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than
one rational interpretation, the Commissioner’s conclusion must be upheld. Rutherford
v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
“| which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be sustained
“even where substantial evidence may support the plaintiff's position and despite that
the court’s independent analysis of the evidence may differ from the [Commissioner’s].”
Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court

must afford the Commissioner’s determination considerable deference, and may not
substitute “its own judgment for that of the [Commissioner], even if it might justifiably
have reached a different result upon a de novo review.” Valente v. Sec’y of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§
404.1520, 416.920. The Supreme Court has recognized the validity of this sequential
“evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step
process is as follows:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a “severe impairment” which
significantly limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has an
impairment which is listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age, education,
and work experience; the [Commissioner] presumes that a claimant who
is afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s severe impairment, he
has the residual functional capacity to perform his past work. Finally, if
the claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.
Under the cases previously discussed, the claimant bears the burden of the
proof as to the first four steps, while the [Commissioner] must prove the
final one.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758
F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can
be made, the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S.
20, 24 (2003).

I. ANALYSIS
Plaintiff's Memorandum of Law presents five general errors for the Court’s
review. Dkt. No. 14, Pl.’s Mem. of Law. First, Plaintiff claims that the ALJ erred by
determining that Plaintiff did not meet the requirements of a listed impairment,
specifically Listing 12.04. Pl.’s Mem. of Law at pp. 5-9. Second, Plaintiff contends
that the ALJ erred in the evaluation of his physical RFC, which he alleges should have
been designated as less than sedentary. /d. at pp. 10-13. Third, Plaintiff claims that the
ALJ erred by her “fail[ure] to give controlling weight to plaintiff's treating medical
providers/sources.” Jd. at pp. 13-15. Fourth, Plaintiff claims that the ALJ failed to
properly evaluate and consider his impairments in combination. /d. at pp. 15-17. Fifth,
“| Plaintiff asserts that the ALJ relied upon the incorrect vocational expert in her decision.
Id. at pp. 17-18. In response, Defendant contends that the ALJ’s findings were
supported by substantial evidence, and that the ALJ properly cited the correct vocational
expert. Dkt. No. 20, Def.’s Mem. of Law at pp. 2-14.
A. Analysis of Listing 12.04

Plaintiff, in his first claim of error, asserts that the ALJ erred in her conclusion
that the requirements for a listings-level impairment, specifically Listing 12.04,” were

? Plaintiff’s submission refers to the listed impairment as “Section 12.04-Affective Disorders.” Pl.’s Mem. of
Law at p. 6. However, the SSA revised the criteria for evaluating mental disorders effective January 17, 2017, at
which time Listing 12.04 was updated to reflect the terminology used by the American Psychological
Association in the DSM-V (depressive, bipolar, and related disorders). See Revised Medical Criteria for
Evaluating Mental Disorders, 81 Fed. Reg. 66137, 66159 (Sept. 26, 2016) (codified at 20 C.F.R. §§ 404 & 416).

not established. Pl.’s Mem. of Law at pp. 5-9. Plaintiff claims that this determination
was not supported by substantial evidence. /d.
The third step of the five-step test employed by the ALJ requires a determination
of whether the Plaintiff has an impairment listed in Appendix 1 of the Social Security
Regulations. 20 C.F.R. § 404, Subpt. P, App. 1. “These are impairments acknowledged
by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a
claimant’s condition meets or equals the ‘listed’ impairments, he or she is conclusively
presumed to be disabled and entitled to benefits.” Glover v. Berryhill, 2018 WL 739371,
at *20 (S.D.N.Y. Feb. 7, 2018) (quoting Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir.
1995)). “Plaintiff has the burden of proof at step three to show that [his] impairments
“| meet or medically equal a Listing.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 272
(N.D.N.Y. 2009). “To meet a Listing, Plaintiff must show that [his] medically
determinable impairment satisfies all of the specified criteria in a Listing.” /d. “Ifa
claimant’s impairment ‘manifests only some of those criteria, no matter how severely,’
such impairment does not qualify.” /d. (quoting Sullivan v. Zebley, 493 U.S. 521, 530

(1990)). “Additionally, a court may uphold an ALJ’s finding that a claimant does not
meet a Listing even where the decision lacks an express rationale for that finding if the
determination 1s supported by substantial evidence.” Andrea K. v. Comm of Soc. Sec.,
2021 WL 1224049, at *6 (N.D.N.Y. Mar. 31, 2021).
ALJ Greisler found that Plaintiff has the following severe impairments: diabetes,
obesity, spinal disorder, atrial fibrillation, obstructive sleep apnea, neurodevelopmental

disorder, attention-deficit hyperactivity disorder, depressive disorder, anxiety disorder,
mood disorder, and learning disorder. Tr. at p. 25. The ALJ carefully considered the
listings that most closely related to those severe impairments, including “sections 1.04
(disorders of the spine), 3.02 (chronic respiratory disorders), 3.09 (chronic pulmonary
“) hypertension due to any cause), 3.14 (respiratory failure), 4.05 (recurrent arrhythmias),
9.00(B)(5) (diabetes mellitus and other pancreatic disorders), 12.04 (depressive, bipolar
and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), and 12.11
(neurodevelopmental disorders).” /d. However, notwithstanding the presence of those
severe impairments the ALJ found that Plaintiff did “not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
“| listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” /d. In making this
determination, the ALJ stated that she compared the record medical evidence to the
Listing requirements and found that the Plaintiff did not meet the necessary criteria. Tr.
at pp. 25-27.
To meet Listing 12.04 for depressive, bipolar and related disorders, a claimant

must establish the criteria of paragraphs A and B or the criteria of paragraphs A and C.
20 C.F.R. § 404, Subpt. P, App. 1, Listing 12.04. The paragraph A criteria requires
medical documentation of either depressive disorder, characterized by five or more

specified symptoms,’ or bipolar disorder,* characterized by three or more specified
symptoms. /d. 12.04(A)(1), (2). Paragraph B requires an extreme limitation in one, or
marked limitation in two areas of mental functioning, which include (1) understanding,
remembering or applying information, (2) interacting with others, (3) concentrating,
4) persisting or maintaining pace, and (4) adapting or managing oneself. /d. Paragraph C
requires a medically documented history of the existence of the disorder over a period
of at least two years, with evidence of both (a) medical treatment, mental health therapy,
psychosocial support(s), or a highly structured setting(s) that is ongoing and that
diminishes the symptoms and signs of the mental disorder; and (b) marginal adjustment,
that is, minimal capacity to adapt to changes in environment or to demands that are not
“| already part of daily life. Id.
Plaintiff argues he is disabled under Listing 12.04 in part because he “has been
consistently diagnosed as suffering from a major depressive disorder with recurrent
episodes, bipolar disorder, anxiety, and a neurodevelopmental disorder in the form of
Attention Deficit/Hyperactivity Disorder.” Pl.’s Mem. of Law at p. 6. As an initial
matter, the Court notes that despite the inclusion of Plaintiff's anxiety and ADHD

3 Symptoms are: (a) depressed mood; (b) diminished interest in almost all activities; (c) appetite disturbance with
change in weight; (d) sleep disturbance; (e) observable psychomotor agitation or retardation; (f) decreased energy;
(g) feelings of guilt or worthlessness; (h) difficulty concentrating or thinking; or (1) thoughts of death or suicide.
20 C.F.R. § 404, Subpt. P, App. 1, Listing 12.04(A)(1).
+ Symptoms are: (a) pressured speech; (b) flight of ideas; (c) inflated self-esteem; (d) decreased need for sleep; □□□□
distractibility; (f) involvement in activities that have a high probability of painful consequences that are not
recognized; or (g) increase in goal-directed activity or psychomotor agitation. 20 C.F.R. § 404, Subpt. P, App. 1,
Listing 12.04(A)(2).
10

diagnoses within that argument, Plaintiff explicitly references only Listing 12.04 in his
claim of error, which does not include those disorders. See Pl.’s Mem. of Law at p. 6;
20 C.F.R. § 404, Subpt. P, App. 1, Listing 12.06 (anxiety disorders); 12.11
(neurodevelopmental disorders). Plaintiff also points generally to various treatment
“)notes and opinions in the record without identifying any specific portions of those
records that he relies on in support of his claim. See e.g. Pl.’s Mem. of Law at pp. 7-8
(citing Tr. at pp. 388-401, 956-1056).
Again, Plaintiff bears the burden of proof at step three to prove that he meets the
requirements necessary to meet or equal the Listings. Landis P. v. Comm’r of Soc. Sec.,
2020 WL 2770434, at *8 (N.D.N.Y. May 28, 2020). However, Plaintiff's “argument on
“| this point appears to conflate the specific, enumerated requirements of each Listing in
Section 12.00 with the fact of his mental diagnoses.” /d. This is problematic because
“Ta] mere diagnosis is insufficient to meet or equal a listed impairment.” /d. (quoting
Dechbery v. Berryhill, 2020 WL 2523045, at *8 (E.D.N.Y. May 18, 2020)); accord
Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988) (“The Secretary correctly argues

that it is not sufficient that there be a diagnosis of a listed impairment.”). The Court is
not persuaded that Plaintiff has met his burden of proof by demonstrating the presence
of the paragraph A criteria as required. 20 C.F.R. § 404, Subpt. P, App. 1, Listing 12.04.
Nevertheless, for the reasons stated below, the Court also finds substantial evidence in
the record to show that Plaintiff failed to satisfy both the paragraph B and C criteria.
Accordingly, the ALJ’s determination was not in error.
11

Although not specifically stated, Plaintiff appears to assert that the criteria for
paragraph B are satisfied, despite the ALJ’s finding to the contrary. Jd. at pp. 5-9. In
support of this position, Plaintiff points to a joint opinion provided by his treating mental
health providers, as well as his own testimony. /d. He also claims, albeit in a conclusory
“manner, that the opinion of consultative examiner Dante Alexander, Psy.D was
“incomplete and inconsistent” and therefore the ALJ’s reliance upon it was “improper
and prejudicial.” Jd. at p. 9. The Court finds these arguments unpersuasive.
The ALJ’s decision included careful consideration of Listing 12.04, explicitly
considering whether the paragraph B criteria were satisfied. Tr. at pp. 25-27. To that
end, the ALJ found that Plaintiff has no more than moderate limitations in
understanding, remembering, or applying information, no more than a mild limitation
in interacting with others, no more than mild limitations in his ability to concentrate,
persist, and maintain pace, and mild limitations in adapting or managing himself. Tr. at
p. 27. The ALJ indicated that these findings were based in part on the opinion of
consultative examiner Alexander, whose opinion she found persuasive to the extent it

was supported by Dr. Alexander’s own clinical findings and consistent with his narrative
assessment. Tr. at pp. 25-27, 30.
Dr. Alexander’s opinion indicated the presence of mild-to-moderate limitations
in the ability to understand, remember, and apply complex directions and instructions,
no evidence of limitation interacting adequately with supervisors, coworkers and the
public, mild limitations sustaining concentration and performing a task at a consistent
12

pace, and no more than mild limitations in the ability to regulate emotions, control
behavior, and maintain well-being. Tr. at p. 688.
While the ALJ acknowledged the assessment provided by Plaintiffs own
medical sources, who opined that Plaintiff had “marked” or “extreme” limitations in
S)every area of work-related functioning, she ultimately found that opinion “not
persuasive.” Tr. at p. 30. The ALJ stated that the opinion was not persuasive due to its
lack of consistency with the providers’ own exam findings, with the medical evidence
in the record, and with Plaintiff's reported activity levels. /d. In her analysis, the ALJ
also specifically addressed much of the hearing testimony relied upon by Plaintiff to
support his position. Compare Tr. at p. 26 with Pl.’s Mem. of Law at pp. 8-9. For
example, the ALJ discussed Plaintiff's statements that he has problems focusing,
completing tasks, and getting along with other people. Tr. at p. 26. However, the ALJ
contrasted those statements with other statements from Plaintiff that indicated a higher
level of functioning, such as his ability to live independently, prepare simple meals,
clean, and shop. Tr. at p. 26. On this record, the ALJ acted within her discretion in

according the treating providers’ report little weight. Burgess v. Astrue, 537 F.3d 117,
128 (2d Cir. 2008). The resolution of genuine conflicts in the evidence is the province
of the ALJ and is not the function of this Court on review. Jd. (citing Veino v. Barnhart,
312 F.3d 578, 588 (2d Cir. 2002)). “While [P]laintiff may disagree with the ALJ’s
conclusion, the Court must defer to the Commissioner’s resolution of conflicting
evidence and reject the ALJ’s findings only if a reasonable factfinder would have to
13

conclude otherwise.” Scott D. v. Comm’r of Soc. Sec., 2021 WL 4481191, at *5
(W.D.N.Y. Sept. 30, 2021) (citing Morris v. Berryhill, 721 Fed. Appx. 25, 29 (2d Cir.
2018)).
The ALJ also found that the evidence failed to establish the presence of the
paragraph C criteria, a finding which Plaintiff does not appear to contest. Tr. at p. 27;
Pl.’s Mem. of Law at pp. 5-9. Moreover, the ALJ noted that “no state agency
psychological consultant or other acceptable medical source designated to make
equivalency findings ... concluded that a mental listing [was] medically equaled.” Tr.
at p. 27.
Contrary to Plaintiff's contentions, the ALJ’s analysis of Plaintiff's impairments
under the criteria of Listing 12.04 was supported by substantial evidence. Remand is
therefore not required on this basis.
B. Plaintiff's Physical RFC
Next, Plaintiff asserts that the ALJ’s determination of his physical RFC was not
supported by substantial evidence, because his RFC should have been less than

sedentary. Pl.’s Mem. of Law at pp. 10-13. In support of this assertion, he points to his
own testimony regarding his ability to ambulate and lift objects. Jd. However, he does
not identify any medical opinion of record that supports the contention that he should
have been limited to less than sedentary work. The ALJ is “not required to accept the
claimant’s subjective complaints without question.” Richards v. Colvin, 2015 WL
1472039, at *7 (N.D.N.Y. Mar. 31, 2015) (quoting Genier v. Astrue, 606 F.3d 46, 49
14

(2d Cir. 2010) (internal alteration omitted)). “Rather, the ALJ ‘may exercise discretion
in weighing the credibility of the claimant’s testimony in light of the other evidence in
the record.’” Jd.
Consultative examiner Rita Figueroa, M.D., opined that Plaintiff could lift and
4) carry up to twenty pounds occasionally, and could sit, stand, and walk for a total of three
hours each, in thirty-minute increments. Tr. at pp. 699-700. The ALJ found this opinion
“partially persuasive” although she declined to adopt all of the limitations indicated by
Dr. Figueroa due to inconsistencies between Dr. Figueroa’s clinical findings and the
opined limitations. Tr. at pp. 28-29. For example, the ALJ noted that although Dr.
Figueroa opined that Plaintiff's ability to sit, stand, and walk would be limited, her exam
observations stated that Plaintiff was in no acute distress, had a normal gait, used no
assistive device, and needed no help changing for the exam or getting on or off the
examination table. Tr. at pp. 28-29, 696, 700. He had no difficulty rising from a chair
and demonstrated a full range of motion in his shoulders, elbows, forearms, wrists, hips,
knees, and ankles. Tr. at pp. 696-697. The ALJ determined that based on the medical

evidence of record and on Plaintiff's self-reported activities, these limitations opined by
Dr. Figueroa represented an understatement of Plaintiffs actual abilities. Tr. at p. 29.
The RFC is an administrative finding, not a medical finding, and there is no
requirement that the RFC mirror any one medical opinion in the record. Scott D. v.
Comm’r of Soc. Sec., 2021 WL 4481191, at *4. Nor is the ALJ required “to accept every
opined limitation from [a] consultative examiner.” Terri G. v. Comm’r of Soc. Sec.,
15

2019 WL 1318074, at *9 (N.D.N.Y. Mar. 22, 2019). Rather, “[i]t is the ALJ’s sole
responsibility to weigh all medical evidence and resolve material conflicts where
sufficient evidence provides for such.” Petell v. Comm’r of Soc. Sec., 2014 WL
1123477, at *10 (N.D.N.Y. Mar. 21, 2014) (citing Micheli v. Astrue, 501 Fed. Appx. 26,
9) 29 (2d Cir. 2012)). This is what the ALJ did here, when she considered Dr. Figueroa’s
consultative medical opinion, her reported clinical findings, and her narrative
assessment, and weighed those against Plaintiff's activities and the other medical
evidence of record. Tr. at pp. 28-29. A review of the record evidence upon which she
relied clearly provides substantial evidence for her conclusion. See, e.g., Tr. at pp. 29,
420, 427, 688, 696-97, 1760-61. While Plaintiff “may disagree with the ALJ’s
“lconclusion, the Court must defer to the Commissioner’s resolution of conflicting
evidence and reject the ALJ’s findings only if a reasonable factfinder would have to
conclude otherwise.” Scott D. v. Comm’r of Soc. Sec., 2021 WL 4481191, at *5 (citing
Morris v. Berryhill, 721 Fed. Appx. at 29).
C. Opinion of Treating Medical Provider

Third, Plaintiff asserts that the ALJ erred by failing to give controlling weight to
the opinions of his treating medical providers. Pl.’s Mem. of Law at pp. 13-15.
Plaintiffs argument on this point is entirely premised upon the requirements of 20
C.F.R. § 404.1527(d)(2), which do not apply to his claim. See 20 C.F.R. §
404.1527(d)(2) (entitled “Evaluating opinion evidence for claims filed before March 27,
2017.”) Because Plaintiffs claim was filed on May 12, 2017, the new regulations apply
16

instead. James W. v. Kijakazi, 2022 WL 685288, at *3 (N.D.N.Y. Mar. 8, 2022) (“Under
the new regulations, the treating physician rule no longer applies.’’) (quotation omitted).
“Therefore, no special deference is given to the treating physician’s opinion.” Jd.
“Although under the new regulations the ALJ is not required to give specific
evidentiary weight to a particular medical opinion, he is still required to articulate how
he considered the medical opinion, including explaining how he considered the
‘supportability’ and ‘consistency’ factors.” Jaleesa H. v. Comm’r of Soc. Sec., 2022
WL 174337, at *5 (W.D.N.Y. Jan. 18, 2022). “Both supportability and consistency in
part require comparison of the medical opinions with other medical sources.” Mark K.
v. Comm’r of Soc. Sec., 2021 WL 4220621, at *4 (W.D.N.Y. Sept. 16, 2021) (citing 20
“| C.F.R. § 404.1 520c(c)(1)-(2)). “The supportability factor measures whether the medical
opinion is supported by objective medical evidence and accompanying explanations. It
does not measure whether the medical opinion is supported by a single doctor’s
findings.” Darla W. v. Comm’r of Soc. Sec., 2021 WL 5903286, at *8 (N.D.N.Y. Dec.
14, 2021) (internal citation omitted). “The consistency factor measures whether a

medical opinion is consistent with medical and nonmedical evidence in a claim.” Jd. at

Plaintiff's treating mental health providers, Charles Pope, LCSW, and Timothy
Jones, NPP, provided a joint medical opinion. Tr. at pp. 681-683. The opinion indicated
that Plaintiff would have “marked” limitations in his ability to understand, remember,
and carry out simple instructions, and to make judgments on simple work-related
17

decisions. In all other areas, they opined that Plaintiff would have “extreme” limitations.
The ALJ addressed this opinion and indicated that she found it “not persuasive.” Tr. at
p. 30. Discussing the supportability factor, ALJ Greisler noted that these extreme
limitations were not supported by the objective medical evidence in the record, such as
“largely benign mental status exams and the providers’ own treatment notes and
observations. Tr. at p. 30. The Court also notes that this opinion was not accompanied
by any supporting explanations or relevant clinical findings even though the form used
provided a clear instruction to do so. Tr. at pp. 681-683.
As to the consistency factor, the ALJ noted that the opinion was not only
inconsistent with the opinion of consultative examiner Dr. Alexander but was also
“inconsistent with the medical and nonmedical evidence of record. Tr. at p. 30. For
example, the ALJ noted that mental status exams conducted by both LCSW Pope and
NP Jones were largely benign. Tr. at pp. 30, 959, 961, 1030. The ALJ also noted that
Plaintiff's activities of daily living suggested a much higher level of functioning than
what the treating providers had opined. Tr. at p. 30. She pointed specifically to

Plaintiffs own statements that he was able to live independently, cook, clean, do
laundry, go shopping, socialize with friends, and maintain good relationships with
family. Tr. at pp. 30, 688.
The Court finds that ALJ Greisler properly considered the opinion evidence in
accordance with 20 C.F.R. §§ 404.1520c and 416.920c. Her overall decision reflects a
detailed consideration of the various opinions of record as well as the medical evidence,
18

Plaintiff's testimony, and his activities of daily living. Tr. at pp. 29-31. The ALJ was
under no obligation to accept the opinion of Plaintiff's treating providers, particularly in
the light of the conflicting evidence and opinions in the medical record. See James W.
v. Kijakazi, 2022 WL 685288, at *3 (no special deference is given to a treating provider’s
opinion); Terri G. v. Comm’r of Soc. Sec., 2019 WL 1318074, at *9 (it is the
responsibility of the ALJ to resolve conflicts in the medical record). The existence of
conflicting evidence in the record, which the ALJ credited, instead provides a basis for
the Court to determine that the decision must be upheld. Brouillette v. Astrue, 901 F.
Supp. 2d 328, 333 (N.D.N.Y. 2012) (“If the evidence is deemed susceptible to more
than one rational interpretation, then the Commissioner’s conclusion must be upheld.”).
D. Evaluation of Impairments in Combination
Next, Plaintiff alleges that the ALJ “failed to properly evaluate and consider the
plaintiff's impairments in combination.” Pl.’s Mem. of Law at pp. 15-17. To advance
this claim, Plaintiff points to a number of his alleged impairments and asserts that he “‘is
disabled by reason of his Affective Disorder, his major depressive disorder with

recurrent episodes, bipolar disorder, anxiety, and neurodevelopmental disorder in the
form of Attention Deficit/Hyperactivity Disorder, his severe physical impairments
including his cervical, thoracic and lumbar spine, including the following: Cervical disc
herniations; .. .” Pl.’s Mem. of Law at pp. 15-16.
Plaintiff does not point to any specific error, but instead claims generally that the
ALJ’s decision is not supported by substantial evidence. Pl.’s Mem. of Law at pp. 15-
19

17. “Substantial evidence is more than a mere scintilla and means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Wright v. Berryhill, 687 Fed. Appx. 45, 47 (2d Cir. 2017) (quoting Greek v. Colvin, 802
F.3d 370, 374-75 (2d Cir. 2015)). “The substantial evidence standard is ‘a very
4) deferential standard of review—even more so than the “clearly erroneous” standard. The
substantial evidence standard means once an ALJ finds facts, we can reject those facts
only if a reasonable factfinder would have to conclude otherwise.’” Wright v. Berryhill,
687 Fed. Appx. at 47 (quoting Brault v. Soc. Sec. Admin., Comm □□□ 683 F.3d 443, 448
(2d Cir. 2012) (emphasis in original)).
The ALJ found that Plaintiff suffers from the following severe impairments:
“| diabetes, obesity, spinal disorder, atrial fibrillation, obstructive sleep apnea,
neurodevelopmental disorder, attention-deficit hyperactivity disorder, depressive
disorder, anxiety disorder, mood disorder, and learning disorder. Tr. at p. 25. However,
at step three of the sequential analysis, the ALJ determined that Plaintiff “does not have
an impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.”
Id. The ALJ expressly stated that she considered the listings that mostly closely related
to the claimant’s physical impairments, but found that the record did not establish the
required medical signs, symptoms, laboratory findings, or degree of functional
limitation necessary to meet the criteria of these listings. Tr. at p. 25. She additionally
noted that no acceptable medical source designated to make an equivalency finding had
20

concluded that Plaintiff's impairments medically equaled a listed impairment. /d. In
making this determination, the ALJ noted that she also considered Plaintiff's obesity in
combination with all his other impairments. /d.
The ALJ’s decision clearly shows that she did consider Plaintiff's impairments
combination with one another when determining the RFC, because she expressly
considered “all symptoms,” Tr. at p. 27, and the “entire record,” id., when making this
determination. See Wright v. Berryhill, 687 Fed. Appx. 45, 49 (2d Cir. 2017) (“We are
satisfied . . . that the ALJ properly considered the combined effect of the Plaintiff's
impairments in determining that the Plaintiff had the [RFC] to perform a range of light
work. The ALJ specifically stated that he had considered ‘the entire record’ and ‘all
symptoms’ in reaching his determination.” (citation omitted)); Frank B. v. Saul, 2020
WL 4596867, at *2 (N.D.N.Y. Aug. 11, 2020).
E. Vocational Expert Testimony
Finally, Plaintiff claims that the ALJ erred because the decision “identifies and
relies upon statements and opinions from individuals who did not participate in the

hearings, the plaintiff's care, and who are entirely unrelated to this Plaintiffs application
for Social Security benefits. (Tr. 121-124).” Pl.’s Mem. of Law at p. 17. However, on
review it appears that Plaintiff's counsel is referring to a different hearing decision.
Pages 121 through 124 of the record are part of a 2015 decision by ALJ Gregory M.
Hamel from a previous appeal by Plaintiff. Tr. at pp. 103-124. The applicable decision
from the present appeal clearly references reliance upon David A. Festa, the vocational
21

expert whom Plaintiff has identified as the proper witness in this case. Tr. at p. 22; Pl.’s
Mem. of Law at p. 17. As a result, there is no error.
IV. CONCLUSION
ACCORDINGLY, it is
ORDERED, that Plaintiff's Motion for Judgment on the Pleadings is DENIED;
and it is further
ORDERED, that Defendant’s Motion for Judgment on the Pleadings is
GRANTED; and it is further
ORDERED, that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED, and it is further
ORDERED, that the Clerk of the Court shall serve copies of this Memorandum-
Decision and Order on the parties.

Dated: May 19, 2022
Albany, New York

2;
Daf Nart) “
U.SMMfagistrate Judge

22

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314865. Public record. Not legal advice.