Henderson v. Kijakazi

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_______________________________________

AMBER H.,

Plaintiff,

v. 6:22-CV-0313

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_______________________________________

THOMAS J. MCAVOY

Senior United States District Court Judge:

DECISION and ORDER

Plaintiff Amber H. (“plaintiff” or “claimant”) brings this action pursuant to the Social

Security Act, 42 U.S.C. § 405(g), for review of a final determination by the Commissioner of

Social Security (“Commissioner” or “Defendant”) denying her application for Social Security

Income (“SSI”). (Dkt. No. 1). Plaintiff alleges that the Administrative Law Judge’s (“ALJ”)

decision denying her application for benefits was not supported by substantial evidence and

contrary to the applicable legal standards. (Dkt. No. 10). Pursuant to Northern District of New

York General Order No. 8, the Court proceeds as if both parties had accompanied their briefs

with a motion for judgment on the pleadings.

I. PROCEDURAL HISTORY

On July 24, 2017, Plaintiff filed an application for SSI benefits, alleging disability

beginning on April 6, 2012. Administrative Record (“R”) at 10. Her application was initially

denied, and she requested a hearing. R. 10, 110–21, 129–30. Following an online video hearing

held on December 31, 2020, Administrative Law Judge (“ALJ”) Lawrence Levey issued an

unfavorable decision on March 5, 2021. R. 7–30. On March 18, 2022, the Appeals Council

denied review of the decision, (R. 1–4), making the ALJ’s decision the final determination of the

Commissioner. This action followed.

II. LEGAL STANDARDS

Standard of Review

“District courts review a Commissioner’s final decision pursuant to 42 U.S.C §§ 405(g)

and 1383(c)(3), and ‘may only set aside a determination by the Commissioner if it is based on

legal error or not supported by substantial evidence in the record.’” Hill v. Comm’r of Soc.

Sec., 19-CV-5096, 2020 WL 5768726, at *5 (S.D.N.Y. Sept. 28, 2020) (quoting Cole v. Colvin,

12-CV-8597, 2014 WL 1224568, at “*2 (S.D.N.Y. Mar. 24, 2014)). “Accordingly, [a court]

must ‘conduct a plenary review of the administrative record to determine if there is substantial

evidence, considering the record as a whole, to support the Commissioner's decision and if the

correct legal standards have been applied.’” Rucker v. Kijakazi, 48 F.4th 86, 91 (2d Cir. 2022)

(quoting Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019)). A court “will overturn a SSA

decision only if the ALJ applies an incorrect legal standard, or if the ALJ’s ruling is not

supported by substantial evidence.” Id. (citation omitted). “The substantial evidence standard

is ‘not high.’” Id. (quoting Colgan v. Kijakazi, 22 F.4th 353, 359 (2d Cir. 2022) (quotation

marks omitted)). “It is ‘such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Id. (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)

(quotation marks omitted)). Properly applied, this standard is highly deferential to the presiding

ALJ, “who has seen the hearing up close.” Biestek v. Berryhill, 139 S. Ct. 1148, 1157 (2019).

“[O]nce an ALJ finds facts, [the Court] can reject those facts ‘only if a reasonable

factfinder would have to conclude otherwise.’” Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d

443, 448 (2d Cir. 2012) (emphasis in original). The Court must not re-weigh evidence, assess

the reliability of witnesses, or otherwise substitute its judgment for that of the ALJ. Veino v.

Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).

Where the record supports disparate findings and provides adequate support for both the

Plaintiff’s and the Commissioner’s positions, a reviewing court must accept the ALJ’s factual

determinations. See Quinones v. Chater, 117 F.3d 29, 36 (2d Cir. 1997) (citing Schauer v.

Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.

1990). “However, this ‘deferential standard of review for substantial evidence does not apply

to the Commissioner’s conclusions of law.’” Kenneth H. v. Comm’r of Soc. Sec., 21-CV-324,

2022 WL 2954364, at *3 (N.D.N.Y. July 26, 2022) (quoting Byam v. Barnhart, 336 F.3d 172,

179 (2d Cir. 2003)). “Thus, ‘where there is a reasonable basis for doubting whether the

Commissioner applied the appropriate legal standards,’ the decision should not be affirmed.”

Id. (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)). “This is so regardless of

whether or not the decision is otherwise supported by ‘substantial evidence.’” Id. (citing

Johnson, 817 F.2d at 986). Although the reviewing court must give deference to the

Commissioner’s decision, a reviewing court must bear in mind that the Act is ultimately “‘a

remedial statute which must be ‘liberally applied;’ its intent is inclusion rather than exclusion.’”

Vargas v. Sullivan, 898 F.2d 293, 296 (2d Cir. 1990) (quoting Rivera v. Schweiker, 717 F.2d

719, 723 (2d Cir. 1983)).

Determination of Disability

To obtain disability benefits, the claimant must prove that she cannot “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 12 months.” 42 U.S.C. § 416(i)(1). The

Commissioner evaluates disability claims using the five-step sequential process set forth at 20

C.F.R. § 404.1520(a)(4). The claimant has the burden of proof at steps one through four, which

includes establishing her residual functional capacity (“RFC”). Poupore v. Astrue, 566 F.3d

303, 306 (2d Cir. 2009).

A plaintiff’s 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, [and] 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)). If the claimant reaches step five, the

Commissioner must produce evidence that the claimant could perform a significant number of

jobs given her age, education, work experience, and RFC. Id. Generally, the Commissioner can

rely on vocational expert testimony for that purpose. Biestek, 139 S. Ct. at 1152.

III. FACTUAL BACKGROUND

Plaintiff was born on October 25, 1985 and has an eighth-grade education. R. 340, 346.

In July 2017, Plaintiff was released from prison, having served five years for assault. R. 551. In

August 2017, she was diagnosed with Persistent Depressive Disorder, an Unspecified

Neurodevelopmental Disorder, and Schizoaffective Disorder (Depressive Type). R. 508.

In September 2017, Plaintiff was seen for a diagnostic evaluation at Upstate Cerebral

Palsy. R. 514. She reported a history of anxiety, depression, and mood swings. R. 514. She

stated that she had been without medication since August 27, 2017, and “since then she is not

doing good, having more racing thoughts and easily become irritable around people and easily

becomes verbally aggression.” R. 514. She also reported a history of auditory and visual

hallucinations, which the examiner found were “not credible because she is not sure that the

voices are [or] could be her own thoughts.” R. 514. On examination, Plaintiff’s mood was

noted as dysphoric; her thought process was coherent and logical; her thought content was

reality-based; her cognitive functioning, attention, and concentration were good; her insight and

judgment were fair; she was calm and cooperative; she was alerted and oriented; there was no

evidence of looseness of association or flight of ideas; and she was not expressing any passive

delusions or paranoid thoughts. R. 515–16. Plaintiff’s diagnoses remained as stated above. R.

516. The examiner prescribed a mood stabilizer and several other medications. R. 516.

In April 2018, Plaintiff returned to Upstate Cerebral Palsy for medication management.

R. 553. Plaintiff reported that she had been doing good. R. 553. She reported that she did not

have mood swings and denied depression. R. 553. She had been sleeping well. R. 553. She

was alerted and oriented, with good insight and judgment. R. 553. The examiner continued

Plaintiff on her mood stabilizer. R. 554. In January 2019, Plaintiff was discharged from

treatment at Upstate Cerebral Palsy due to lack of engagement—she had not returned for

treatment since April 2018. R. 543–44.

In July 2020, Plaintiff returned to Upstate Cerebral Palsy and reported poor sleep, mood

swings, anxiety, and auditory hallucinations. R. 1134. On examination, Plaintiff was

cooperative and polite, and her thought content was logical. R. 1135. Her diagnosis was listed

as other schizoaffective disorder. R. 1135. In August 2020, Plaintiff reported that she was

feeling increasingly stressed, anxious, depressed, easily irritable, and agitated. R. 1125. She

also reported mood swings, seeing things, hearing voices, and she was fearful of public

transportation, being outside of her home, and dealing with the community. R. 1125. Plaintiff

also stated, “I am feeling pretty good at this time, no complaints, just need my medication

refilled.” R. 1126. On examination, her thought process and content were normal, and her

insight, judgment, and memory were good. R. 1126. She reported doing well on current

medications. R. 1126. The examiner noted that Plaintiff’s “history and presentation clearly

suggest . . . anxiety disorder and possibly adjustment disorder.” R. 1126. Plaintiff was

encouraged to continue individual therapy, maintain medication compliance, and follow up with

medical management. R. 1126.

In November 2020, Plaintiff returned and reported being stressed, depressed,

overwhelmed, having difficulty sleeping, and hearing voices. R. 1112. Plaintiff said that she

was not doing well and wanted to get back on the mental health medication she was prescribed

while incarcerated. R. 1112. She said that she did very well on those medications. R. 1112.

Plaintiff was prescribed new medications. R. 1112. In December 2020, Plaintiff reported that

she was doing okay but having family issues. R. 1109. Plaintiff said that she was sleeping

better and taking her medication. R. 1110. On examination, her thought process and content

were normal, and her insight, judgment, and memory were good. R. 1110. She was advised to

continue taking her medications. R. 1110.

At the hearing on December 31, 2020, Plaintiff testified that she has anxiety, doesn’t like

to be around other people, and has difficulty sleeping. R. 83. Plaintiff testified that she has

difficulty doing household chores or going out in public. R. 84, 91. Plaintiff testified that she

sometimes hallucinates and sees things which are not there. R. 89–90. Plaintiff said that she

takes several medications for her mental health. R. 93–94. In addition to her mental

impairments, Plaintiff has been diagnosed with sacroiliac joint arthritis, sickle cell trait, asthma,

chronic obstructive pulmonary disease, and obesity. R. 13.

IV. THE ALJ’s DECISION

The ALJ engaged in the five-step analysis required by 20 C.F.R. § 416.920(a) to

determine whether Plaintiff qualified for disability benefits. The ALJ found that Plaintiff had

not engaged in substantial gainful activity since July 24, 2017, the application date. R. 12. The

ALJ found that Plaintiff had the following severe impairments: 1) sacroiliac joint arthritis; 2)

sickle cell trait; 3) asthma; 4) chronic obstructive pulmonary disease; 5) obesity; 6) anxiety

disorder; 7) schizoaffective disorder; 8) depressive disorder; 9) neurodevelopmental disorder;

10) post-traumatic stress disorder; and 11) substance abuse (in remission). R. 13 (citing 20

C.F.R. § 416.920(c)).

The ALJ found 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. 404 Part

404, Subpart P, Appendix 1. R. 13 (citing 20 C.F.R. §§ 416.920(d), 416.925, and 416.926).

Next, the ALJ found that Plaintiff had the RFC to perform medium work as defined in 20 C.F.R.

§ 416.967(c), with the following restrictions:

[C]laimant can frequently stoop and crouch and can occasionally climb, balance,

kneel, and crawl. The claimant must avoid concentrated exposure to environmental

irritants. She can perform simple, routine, and repetitive tasks in an environment

free of fast-paced production requirements, involving simple work-related

decisions and few if any changes in the workplace. The claimant cannot have

required interpersonal interaction with the general public and can have occasional

interaction with coworkers and supervisors.

R. 15–16. The ALJ found that Plaintiff had no past relevant work. R. 20. The ALJ found that

considering Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in

significant numbers in the national economy that she can perform. R. 21. Thus, the ALJ

concluded that Plaintiff was not under a disability during the relevant period. R. 23.

V. DISCUSSION

The Parties’ Arguments

On appeal, Plaintiff argues that the ALJ committed three errors in denying her

application for benefits: 1) the ALJ “did not sustain their burden of demonstrating that there are

a significant number of jobs in the national economy that Plaintiff could perform within her”

RFC; 2) “the ALJ erred in the persuasiveness afforded to the opinions regarding the Plaintiff’s

non-exertional limitations”; and 3) “the ALJ erred in finding that the Plaintiff’s testimony was

inconsistent with the evidence in the record.” (Dkt. No. 10, at 6). In response, the

Commissioner asserts that substantial evidence supports the ALJ’s decision. (Dkt. No. 11).

Assessing Medical Opinions

Under the new regulations applicable to Plaintiff’s claim, the Commissioner will no

longer give specific evidentiary weight to medical opinions. Elizabeth P. v. Comm’r of Soc.

Sec., 20-CV-891, 2022 WL 507367, at *4 (N.D.N.Y. Feb. 18, 2022); see Wanda N. v. Comm’r

of Soc. Sec., 21-CV-358, 2022 WL 4376484, at *6 (N.D.N.Y. Sept. 22, 2022). “Rather, the

Commissioner must consider all medical opinions and ‘evaluate their persuasiveness’ based on:

supportability; consistency; relationship with the claimant (which includes the length of

treatment relationship, frequency of examinations, purpose and extent of the treatment

relationship, and examining relationship); specialization; and ‘other factors.’” Elizabeth P.,

2022 WL 507367, at *4 (quoting 20 C.F.R. § 404.1520c(a)-(c)).

“The regulations explain that when ‘evaluat[ing] the persuasiveness of medical opinions

and prior administrative medical findings,’ the ‘most important factors ... are supportability ...

and consistency.’” Loucks v. Kijakazi, 21-1749, 2022 WL 2189293, at *1 (2d Cir. 2022)

(summary order) (footnote omitted) (quoting 20 C.F.R. § 404.1520c(a)); see also Raymond M. v.

Comm’r of Soc. Sec., 19-CV-1313, 2021 WL 706645, at *8 (N.D.N.Y. Feb. 22, 2021) (“At their

most basic, the amended regulations require that the ALJ explain her findings regarding the

supportability and consistency of each of the medical opinions, ‘pointing to specific evidence in

the record supporting those findings.’”) (citing Jacqueline L. v. Commissioner, 19-CV-6786,

2021 WL 243099, at *6 (W.D.N.Y. Jan. 26, 2021)).

“‘Supportability’ means ‘[t]he more relevant the objective medical evidence and

supporting explanations presented by a medical source are to support his or her medical

opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions

or prior administrative medical finding(s) will be.’” Celia A. B. v. Comm’r of Soc. Sec., 21-CV-

112, 2022 WL 4225540, at *4 (N.D.N.Y. Sept. 13, 2022) (quoting 20 C.F.R. § 404.1520c(c)(1));

see Andrea G. v. Comm’r of Soc. Sec., 20-CV-1253, 2022 WL 204400, at *4 (N.D.N.Y. Jan. 24,

2022) (“Under the supportability factor, the more a medical opinion or prior administrative

medical finding is reinforced by ‘relevant ... objective medical evidence and supporting

explanations,’ the ‘more persuasive’ it will be.”) (quoting 20 C.F.R. § 404.1520c(c)(1), and

citing Carmen M. v. Comm’r of the Soc. Sec. Admin, 20-CV-6532, 2021 WL 5410550, at *4

(W.D.N.Y. Nov. 19, 2021) (“The supportability factor asks how well a medical source supported

their opinion(s) with objective medical evidence and supporting explanations.”)).

“‘Consistency’ means ‘[t]he more consistent a medical opinion(s) or prior administrative

medical finding(s) is with the evidence from other medical sources and nonmedical sources in

the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s)

will be.’” Celia A. B., 2022 WL 4225540, at *4 (quoting 20 C.F.R. § 404.1520c(c)(2)).

As Judge Hummel recently explained:

“If the ALJ fails adequately to explain the supportability and consistency factors,

or bases [his or] her explanation upon a misreading of the record, remand is

required.” Rivera v. Comm’r of the Soc. Sec. Admin., No. 19-CV-4630 (LJL/BCM),

2020 WL 8167136, at *14 (S.D.N.Y. Dec. 30, 2020), report and recommendation

adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021) (citation and quotation marks

omitted). . . .

“[T]he ALJ’s conclusion [need] not perfectly correspond with any of the opinions

of medical sources cited in his [or her] decision, [and] he [or she] [i]s entitled to

weigh all of the evidence available to make an RFC finding that [i]s consistent with

the record as a whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)

(summary order). The Court “defer[s] to the Commissioner’s resolution of

conflicting evidence[.]” Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018)

(summary order) (citation and quotation marks omitted). Therefore, even if a

plaintiff disagrees with the ALJ’s assessment of opinion evidence and can point to

evidence in the record to support his or her position, “whether there is substantial

evidence supporting the [plaintiff's] view is not the question [ ]; rather, [the Court]

must decide whether substantial evidence supports the ALJ’s decision.” Bonet ex

rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013) (summary order) (emphasis

omitted). The ALJ must not “ignore evidence or cherry pick only the evidence from

medical sources that support a particular pick only the evidence from medical

sources that support a particular conclusion and ignore the contrary evidence” but

“[t]he Court will not reweigh the evidence that was before the ALJ.” April B. v.

Saul, No. 8:18-CV-682 (DJS), 2019 WL 4736243, at *6 (N.D.N.Y. Sept. 27, 2019)

(citations and internal quotation marks omitted).

“It is well settled that, under both the old and new regulations concerning the

evaluation of medical evidence, an ALJ may rely on the opinion of a non-examining

state agency consultant in disability claims.” Amber H. v. Saul, No. 3:20-CV-490

(ATB), 2021 WL 2076219, at *5 (N.D.N.Y. May 24, 2021). “[A]n ALJ need not

recite every piece of evidence that contributed to the decision, so long as the record

permits [the reviewing court] to glean the rationale of an ALJ’s decision.” Renalda

R. v. Comm’r of Soc. Sec., 20-CV-0915 (TWD), 2021 WL 4458821, at *5

(N.D.N.Y. Sept. 29, 2021) (citations and quotation marks omitted).

Elizabeth P., 2022 WL 507367, at *4. If the RFC assessment conflicts with an opinion from a

medical source, “the adjudicator must explain why the opinion was not adopted.” Social

Security Ruling 96-8p, at *7 (July 2, 1996). The failure to do so is grounds for remand. See

Herrera v. Comm’r of Soc. Sec., 20-CV-6211, 2022 WL 4643044, at *7 (E.D.N.Y. Sept. 30,

2022).

Analysis

1. Did the ALJ Err in Assessing the Medical Opinions?

A. Dr. Halburian

Consultative examiner Dr. Beth Halburian performed a psychiatric evaluation of Plaintiff

and issued a report on October 27, 2017. R. 530–36. As relevant here, Dr. Halburian noted that:

Plaintiff’s thought processes were coherent and goal-directed with no evidence of hallucinations,

delusions, or paranoia at the time; 2) she appeared anxious; 3) her attention and concentration

appeared to be mildly impaired due to anxiety or nervousness; 4) she was able to successfully

complete counting tasks and simple calculations; 5) her recent and remote memory skills

appeared mildly impaired due to anxiety or nervousness as well as emotional distress secondary

to depression and anxiety; 6) her intellectual functioning appeared average; 7) her general fund

of information appeared somewhat limited; and 8) her insight and judgment were good. R. 533–

34. Dr. Halburian diagnosed Plaintiff with persistent depressive disorder, generalized anxiety

disorder with history of panic attacks, and post-traumatic stress disorder. R. 535.

As to limitations, Dr. Halburian opined that Plaintiff had: 1) no limitation in her ability to

understand and carry out simple directions, use reason and judgment to make decisions, and

sustain an ordinary routine and regular attendance at work ; 2) mild limitations in her ability to

interact adequately with others in the workplace and regulate emotions, control behavior, and

maintain well-being; and 3) moderate limitations in her ability to understand and carry out

complex instructions, sustain concentration, and perform a task at a consistent pace. R. 534–35.

The ALJ found that Dr. Halburian’s opinion was partially persuasive. According to the

ALJ, Dr. Halburian’s opinion that Plaintiff could perform simple but not detailed tasks at a

limited pace was “consistent with findings in other records, including descriptions of poor

memory for dates in July 2017 . . . as well as good memory and judgment despite being

overwhelmed in October 2020.” R. 19. But the ALJ found that Dr. Halburian’s opinion that

Plaintiff had no limitation in decision-making and only mild difficulty interacting with others

was inconsistent with psychiatry notes indicating anxiety and irritability. R. 19. Thus, the ALJ

concluded that “Dr. Halburian’s opinion regarding task complexity and work pace is persuasive,

but the portions of her opinion regarding interaction and decision-making are not fully

persuasive.” R. 19.

Plaintiff argues that Dr. Halburian’s opinion is inconsistent with the psychiatry notes,

and therefore, “there is not substantial evidence supporting the ALJ’s conclusion that this

opinion was even ‘partially persuasive.’” (Dkt. No. 10, at 15). In response, the Commissioner

contends that the ALJ properly analyzed the consistency of Dr. Halburian’s opinion. (Dkt. No.

11, at 12–14).

As discussed above, the more consistent a medical opinion is with the evidence from

other medical sources and nonmedical sources in the claim, the more persuasive the medical

opinion will be. 20 C.F.R. § 404.1520c(c)(2). Plaintiff appears to suggest that because Dr.

Halburian’s opinion was not entirely consistent with the medical evidence, it should not have

been found persuasive at all. But the ALJ was not required to either adopt or reject Dr.

Halburian’s opinion in toto. See Younes v. Colvin, 14-CV-170, 2015 WL 1524417, at *8

(N.D.N.Y. Apr. 2, 2015) (“There is no absolute bar to crediting only portions of medical source

opinions.”).

Thus, while the ALJ found one portion of the opinion to be persuasive, he recognized

that Dr. Halburian’s opinion that Plaintiff had no limitation in decision-making and only mild

difficulty interacting with others was inconsistent with psychiatry notes indicating anxiety and

irritability. R. 19. The psychiatry notes referenced by the ALJ reflect that in 2020 Plaintiff

reported feeling anxious, stressed, irritable, overwhelmed, and she had difficulty sleeping and

heard voices. See e.g., R. 1110, 1112, 1134. Plaintiff does not indicate how these notes support

any greater limitations than those assessed by the ALJ in the RFC. Based on the Court’s review,

the psychiatry notes support the ALJ’s decision to discount part of Dr. Halburian’s opinion.

Further, the notes are generally consistent with the RFC, which went beyond Dr. Halburian’s

opinion and limited Plaintiff to simple work-related decisions, occasional interaction with co-

workers and supervisors, and no interaction with the public. R. 16. Accordingly, the ALJ did

not err in evaluating Dr. Halburian’s opinion, and substantial evidence supports the finding that

it was partially persuasive.

B. Dr. Kleinerman

Dr. Kleinerman, a non-examining State agency psychological consultant, reviewed

Plaintiff’s medical records and assessed her limitations. R. 117–19. Dr. Kleinerman found that

Plaintiff was not significantly limited in her ability to: remember locations and work-like

procedures; understand and remember very short and simple instructions; carry out very short

and simple instructions; sustain an ordinary routine without specific supervision; complete her

work without interruptions from psychologically-based symptoms; and maintain socially

appropriate behavior. R. 118–19. Dr. Kleinerman found that Plaintiff was moderately limited in

her ability to: understand, remember, and carry out detailed instructions; work with others

without being distracted by them; interact appropriately with the public; and get along with

coworkers or peers without distracting them or exhibiting behavioral extremes. R. 118–19.

The ALJ found Dr. Kleinerman’s opinion to be persuasive because it was “generally

supported and consistent with the record as a whole.” R. 20. The ALJ noted that Dr.

Kleinerman provided a lengthy explanation to support his opinion. R. 19. Further, the ALJ

stated that Plaintiff’s “recent records indicate cooperative and pleasant behavior and good

memory despite anxiety and stress, consistent with a capacity to perform simple work and

interact with others on an infrequent basis.” R. 19. But the ALJ noted that Plaintiff’s allegations

of hallucination “suggest additional limitations in dealing with changes and making decisions

beyond what Dr. Kleinerman found.” R. 19–20.

Plaintiff argues that the ALJ improperly relied on Dr. Kleinerman’s opinion because it is

inconsistent with the record, not based on an examination, and was made before the record was

complete. (Dkt. No. 10, at 15–17). Therefore, Plaintiff asserts that Dr. Kleinerman’s opinion

does not amount to substantial evidence and should not have been afforded persuasive value. In

response, the Commissioner contends that the ALJ permissibly relied on Dr. Kleinerman’s

opinion, which was well-supported by the record. (Dkt. No. 11, at 15–17).

First, it is well-established that the opinions of non-examining sources may be used to

support an ALJ’s decision. See Allen v. Comm’r of Soc. Sec., 351 F. Supp. 3d 327, 335

(W.D.N.Y. 2018) (citing cases). The fact that Dr. Kleinerman did not examine Plaintiff did not

preclude the ALJ from relying upon his opinion. Indeed, where the record does not contain a

medical opinion from a treating source, as is the case here, the opinion of a non-examining

source can “take on particular significance.” Kya M. v. Comm’r of Soc. Sec., 506 F. Supp. 3d

159, 165 (W.D.N.Y. 2020) (citation omitted).

Second, although the ALJ stated that Dr. Kleinerman’s opinion about Plaintiff’s

limitations was inconsistent with her allegations of hallucinations, that did not preclude the ALJ

from finding that the opinion was consistent with the record “as a whole.” R. 20. As the

Commissioner points out, there was ample evidence consistent with Dr. Kleinerman’s opinion,

including treatment notes, mental exam findings, and Plaintiff’s daily activities. (See Dkt. No.

11, at 14–15).

Third, “it is not error to rely on an opinion that predates additional medical evidence if

that evidence does not indicate any material change in the claimant’s medical condition or the

severity of his symptoms.” See, e.g., Robert J. R. v. Comm’r of Soc. Sec., 19-CV-627, 2021 WL

4437174, at *4 (W.D.N.Y. Sept. 28, 2021). Plaintiff asserts that Dr. Kleinerman’s opinion,

dated October 2017, should not have been found persuasive because he did not review treatment

notes from 2020 where Plaintiff reported hallucinations. (Dkt. No. 10, at 17). But the ALJ

recognized Plaintiff’s reported hallucinations “suggest additional limitations in dealing with

changes and making decisions beyond what Dr. Kleinerman found,” (R. 19–20), and the ALJ

incorporated related limitations into the RFC. In sum, the Court finds that the ALJ did not err in

evaluating and relying upon Dr. Kleinerman’s opinion, and any possible error was harmless

because it would not have affected the ALJ’s decision.

2. Did the ALJ Err in Evaluating Plaintiff’s Testimony?

The Regulations require a two-step process for the ALJ to assess a claimant’s subjective

symptoms. First, the ALJ considers whether the medical evidence shows any impairment

“which could reasonably be expected to produce the pain or other symptoms alleged. . . .” 20

C.F.R. § 404.1529(a). Second, if an impairment is shown, the ALJ must review all the available

evidence and evaluate the “intensity, persistence, or functionally limiting effects” of a claimant’s

symptoms to determine the extent to which they limit the claimant’s capacity to work. 20 C.F.R.

§§ 404.1529(b)–(c). Here, Plaintiff argues that the ALJ erred at step two by finding that

Plaintiff’s alleged symptoms were inconsistent with the record evidence. (Dkt. No. 10, at 17).

In response, the Commissioner contends that substantial evidence supports the ALJ’s finding.

(Dkt. No. 11, at 17).

As relevant here, the ALJ found that Plaintiff’s medical conditions could be reasonably

expected to cause her alleged mental health symptoms, but that Plaintiff’s “statements

concerning the intensity, persistence and limiting effects of these symptoms are not entirely

consistent with the medical evidence and other evidence in the record for the reasons explained

in this decision.” R. 16.

First, Plaintiff argues that the ALJ did only a conclusory analysis of her alleged

symptoms. (Dkt. No. 10, at 18). Plaintiff compares the ALJ’s analysis to that found wanting in

Cabibi v. Colvin, 50 F. Supp. 3d 213, 236 (E.D.N.Y. 2014). However, the ALJ in this case did

not employ the boilerplate formulation used in Cabibi. Rather, the record shows that the ALJ

closely followed the regulatory framework and conducted a thorough analysis.1 As required by

20 C.F.R. § 404.1529(c)(2), the ALJ began by reviewing the objective medical evidence, some

of which tended to support Plaintiff’s alleged symptoms: 1) chronic symptoms of mental

disorders, including hallucinations, preoccupation, and flashbacks; 2) repeated findings of mood

abnormality, including dysphoric mood, irritability, anxiety, and depression; 3) some cognitive

issues associated with mental impairments; 4) and findings of fair attention and concentration.

R. 17–18. Then the ALJ noted objective medical evidence which indicated that Plaintiff’s

abilities exceeded her alleged symptoms, including that: 1) “most medical records suggest good

mental functioning”; 2) “numerous telehealth records from 2020 indicate good recent and remote

memory, as well as good insight and judgment”; 3) generally mild findings made by Dr.

1 The Court notes that contrary to Plaintiff’s suggestion, the ALJ did not make a “credibility” finding, as

the SSA no longer uses that term. See Social Security Ruling 16-3p; Titles II and XVI: Evaluation of

Symptoms in Disability Claims (effective March 16, 2016).

Halburian; and 4) psychiatric records indicating that Plaintiff was calm and cooperative. R. 18.

The ALJ stated that:

Because the claimant has a history of panic attacks and alleged hallucination related

to her mental disorders, but most mental examinations indicate cooperative

behavior and intact cognition and judgment, the undersigned finds these allegations

partially supported. The claimant’s panic attacks in crowds would preclude any

work requiring interaction with the public, but her generally cooperative and

engaging behavior when in treatment show she can have occasional interactions

with coworkers and supervisors. The evidence does indicate some findings of

diminished memory and concentration, as well as hallucination symptoms affecting

her ability to make decisions and respond to changes, but the overall record

indicates an ability to follow simple instructions for repetitive tasks not at a

production pace.

R. 18.

As required by 20 C.F.R. § 404.1529(c)(3), the ALJ then analyzed the non-medical

evidence supporting Plaintiff’s alleged mental health symptoms. Among other things, the ALJ

noted that Plaintiff “has demonstrated a good response to her symptoms, including insomnia and

hallucinations, when taking medication consistently.” R. 19. The ALJ also found that Plaintiff’s

allegations of disabling mental health symptoms were inconsistent with her reported daily

activities, which included shopping in stores, leaving the house, household cleaning and laundry,

and paying her bills. R. 19. The ALJ also noted that Plaintiff had performed some work activity

in 2018 and 2019, which suggested that her mental disorders were “less limiting than alleged.”

R. 19. Overall, the ALJ found that “considering the examination findings, the claimant’s

treatment history, and her activities of daily living, the undersigned finds that these allegations

are not fully supported by the record as a whole.” R. 19. In sum, the ALJ sufficiently explained

his analysis of Plaintiff’s alleged symptoms and cited substantial evidence in evaluating them.

Next, Plaintiff argues that the ALJ “mischaracterized and overstated the daily activities

the Plaintiff does perform, while also failing to articulate how the Plaintiff’s statements

regarding daily activities are inconsistent with the medical record demonstrating severe mental

impairments.” (Dkt. No. 10, at 19). Notably, Plaintiff does not specifically identify any instance

where the ALJ overstated her daily activities. As to consistency, it is well-established that basic

activities of self-care “do not by themselves contradict allegations of disability, as people should

not be penalized for enduring the pain of their disability in order to care for themselves.”

Woodford v. Apfel, 93 F. Supp. 2d 521, 529 (S.D.N.Y. 2000). However, in this case the ALJ

cited Plaintiff’s daily activities as part of a multifaceted analysis of her alleged symptoms,

which included the objective medical evidence discussed above. And the ALJ relied upon all of

the cited evidence in finding that Plaintiff’s alleged symptoms were inconsistent with the record.

Plaintiff also argues that the ALJ “failed to explain how Plaintiff’s activities of daily

living translate into her ability to perform substantial gainful activity.” (Dkt. No. 10, at 20).

According to Plaintiff, the ALJ therefore erred in relying on Plaintiff’s activities of daily living

to determine her limitations and RFC. (Id.). But the ALJ’s analysis shows that he considered

Plaintiff’s daily activities primarily to assess her alleged symptoms, not her limitations and RFC.

For example, the ALJ cited statements that Plaintiff performed household chores as evidence

contrary to her allegations of incapacitating depression. R. 19. Such daily activities “are fair

game when assessing the intensity and persistence of a plaintiff’s symptoms.” Julie B. v.

Comm’r of Soc. Sec., 578 F. Supp. 3d 345, 354 (N.D.N.Y. 2022). Thus, the ALJ properly

considered Plaintiff’s daily activities pursuant to 20 C.F.R. § 404.1529(c), and he was not

obligated to explain how they translated into her ability to do work. In sum, the Court finds no

error in the ALJ’s reliance on Plaintiff’s daily activities.

Further, Plaintiff contends that the ALJ “failed to consider the seven credibility factors

pursuant to 20 C.F.R. § 416.929(c)(3)(i)–(vii), which also represents a flaw in the credibility

determination.” (Dkt. No. 10, at 21). In addition to objective medical evidence, the Regulations

identify the following factors relevant as relevant to evaluating a claimant’s symptoms:

(i) Your daily activities;

(ii) The location, duration, frequency, and intensity of your pain or other

symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication you

take or have taken to alleviate your pain or other symptoms;

(v) Treatment, other than medication, you receive or have received for relief

of your pain or other symptoms;

(vi) Any measures you use or have used to relieve your pain or other

symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every

hour, sleeping on a board, etc.); and

(vii) Other factors concerning your functional limitations and restrictions

due to pain or other symptoms.

20 C.F.R. § 416.929(c)(3)(i)–(vii).

As discussed above, the ALJ permissibly considered Plaintiff’s daily activities. The ALJ

also noted that Plaintiff received mental health treatment and that recent records indicated no

side effects from medication. R. 18. And the ALJ noted Plaintiff’s history of assault and limited

employment. R. 19. Therefore, the ALJ addressed at least several of the 20 C.F.R. §

416.929(c)(3) factors, and a “rote recitation” of each factor is not generally necessary. Bonilla v.

Comm’r of Soc. Sec., 20-CV-655, 2022 WL 204215, at *9 (E.D.N.Y. Jan. 21, 2022). Moreover,

as discussed above, the ALJ cited substantial evidence in evaluating Plaintiff’s symptoms, and

any error in failing to explicitly address some of the Section 416.929(c)(3) factors was harmless.

3. Is the ALJ’s Step Five Determination Supported by Substantial Evidence?

Finally, Plaintiff argues that the Commissioner failed to meet its burden at step five of

the disability determination process because the ALJ relied on unreliable testimony from a

vocational expert (“VE”). (Dkt. No. 10, at 10–14). According to Plaintiff, “[n]o reasonable

mind would accept the VE’s testimony as adequate to support the conclusion that there are a

significant amount of jobs in the national economy that the Plaintiff can perform.” (Id., at 13).

Thus, Plaintiff asserts that substantial evidence does not support the step five determination.

(Id., at 14). The Commissioner disagrees. (Dkt. No. 11, at 5–10).

At the hearing, the ALJ asked the VE whether jobs exist in the national economy for an

individual with Plaintiff’s age, education, work experience, and RFC. R. 96. The VE testified

that someone in Plaintiff’s position would be able to perform the requirements of representative

occupations such as: 1) linen room attendant (70,000 jobs nationally); 2) cleaner II (150,000 jobs

nationally); and 3) laundry worker I (35,000 jobs nationally). R. 97. The VE testified that his

opinion was consistent with the Dictionary of Occupational Titles (“DOT”) and based on his

professional experience and training. R. 98–99.

Plaintiff’s attorney at the hearing questioned the VE about the basis for his opinion. The

VE testified that he calculated the number of jobs available by using the OccuBrowse software,

which has statistics from the Department of Labor correlated to DOT job codes. R. 100. The

VE further testified that, for each DOT code, he took out the jobs that did not relate to the

hypothetical RFC. R. 102. The VE testified that he also checks labor market trends and Bureau

of Labor Statistics numbers, and also that he consults with experts from the Department of

Labor. R. 105. The VE admitted that he is not a statistician or an “expert on the exact number

of jobs within the national economy.” R. 104. Plaintiff’s attorney insisted that the VE’s analysis

was flawed, offered alternative numbers generated by a different software, and was permitted to

file a post-hearing brief. R. 103–107.

The ALJ ultimately rejected Plaintiff’s challenge to the VE’s opinion. The ALJ noted

that the VE’s methodology included “screening out other DOT codes contained within the SOC

group and using his experience, including a history of labor market surveys and trends, to obtain

a more ‘reasonable’ number of jobs.” R. 22. The ALJ determined that the VE’s testimony was

consistent with DOT information, and that where the DOT was silent, the VE “has sufficient

education and experience in job classification and placement to justify those aspects of his

testimony.” R. 23. The ALJ noted that the VE had “over twenty years of experience performing

vocational rehabilitation tasks such as vocational evaluation and job placement.” R. 23. The

ALJ also recognized that there was a discrepancy in the job numbers generated by Plaintiff’s

attorney using different software, which totaled 13,500, but found that this discrepancy did not

fatally undermine the VE’s opinion. R. 22–23. The ALJ also found that the 13,500 jobs would

still amount to a significant number in the national economy. R. 22.

Plaintiff now once again argues that the VE’s testimony was flawed. According to

Plaintiff, the VE’s job numbers “lack any reliability in this case.” (Dkt. No. 10, at 11). In

general, although the Federal Rules of Evidence do not apply in Social Security proceedings, an

ALJ may only rely on a VE’s opinion where it rests on a sufficient foundation, such as “personal

experience, labor market surveys, and published statistical sources.” See Jones-Reid v. Astrue,

934 F. Supp. 2d 381, 407 (D. Conn. 2012), aff’d, 515 F. App’x 32 (2d Cir. 2013) (summary

order). The Supreme Court has explained that whether a VE’s opinion amounts to substantial

evidence must be determined on a case-by-case basis, and that opinions clearing that bar must

typically have some “markers of reliability.” Biestek, 139 S.Ct. at 1157.

In this case, the Court finds that the VE’s opinion amounts to substantial evidence for the

ALJ’s Step Five Determination. Notably, the VE testified that he based his opinion on personal

knowledge, experience, and statistical sources. The VE generally explained his methodology in

that he obtained a set of job numbers based on DOT codes from the OccuBrowse software and

then whittled those numbers down to reflect Plaintiff’s RFC based on his experience and

knowledge of labor market trends. Thus, the VE’s opinion had sufficient markers of reliability

for the ALJ to rely upon it.2 See also Jones-Reid, 934 F. Supp. 2d at 407 (finding that the ALJ

did not err in relying upon VE testimony based on “reliable statistical sources as well personal

knowledge and experience”).

To the extent Plaintiff points to lower job numbers calculated by different software, such

a discrepancy would not render the VE’s opinion invalid. Moreover, the lower jobs cited by

Plaintiff would not have affected the ALJ’s decision. Courts have held that a ‘significant

number’ of jobs is fairly minimal.” Hamilton v. Comm’r of Soc. Sec., 105 F. Supp. 3d 223, 229

(N.D.N.Y. 2015) (citation omitted). Thus, the 13,500 jobs identified by Plaintiff would still

constitute a significant number.3 See Rosa v. Comm’r of Soc. Sec., 14-CV-1145, 2015 WL

7574516, at *7 (N.D.N.Y. Nov. 4, 2015) (finding that 11,903 jobs would constitute a significant

number, observing that “[c]ourts have held that numbers varying from 9,000 upwards

constituted ‘significant’”), report and recommendation adopted sub nom. Rosa v. Colvin, 2015

WL 7573222 (N.D.N.Y. Nov. 25, 2015).

VI. CONCLUSION

Although Plaintiff suffers from several serious ailments, it is not for the Court to

overturn the ALJ’s decision if that decision is supported by substantial evidence. After careful

review of the record, the Court concludes that the ALJ applied the correct legal standards, and

the decision is supported by substantial evidence.

2 To the extent the vocational expert testified that he was not a trained statistician, that fact does not

compromise the general reliability of his opinion. As discussed above, there is no requirement that a

vocational expert be an “expert” as that term is used in Rule 702 of the Federal Rules of Evidence.

3 Plaintiff objects that the ALJ did not resolve the discrepancy between the job numbers cited by her

attorney and the VE. (Dkt. No. 10, at 13). However, the ALJ’s decision shows that he relied on the job

numbers from the VE, whose opinion he gave great weight. R. 23.

For the foregoing reasons it is

ORDERED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 10) is

DENIED and Defendant’s motion for judgment on the pleadings (Dkt. No. 11) is GRANTED.

The decision of the Commissioner is AFFIRMED.

IT IS SO ORDERED.

Dated: June 27, 2023 Cong ay

Thomas J. M¢gAvoy

Senior, U.S. District Judge

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