Morgan v. Commissioner of Social Security

NOV 27 2019 )

UNITED STATES DISTRICT COURT \ ten, □□

WESTERN DISTRICT OF NEW YORK Neer 5S

MARY ELIZABETH MORGAN, 1:18-CV-00884-MJR

DECISION AND ORDER

Plaintiff,

-y-

COMMISSIONER OF SOCIAL SECURITY,'

Defendant.

Pursuant to 28 U.S.C. §636(c), the parties consented to have a United States

Magistrate Judge conduct all proceedings in this case. (Dkt. No. 18).

Plaintiff Mary Elizabeth Morgan (‘plaintiff’) brings this action pursuant to 42 U.S.C.

§§405(g) and 1383(c)(3) seeking judicial review of the final decision of the Commissioner

of Social Security (“Commissioner” or “defendant”) denying her Supplemental Security

Income (“SSI”) under the Social Security Act (the “Act”). Both parties have moved for

judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

For the following reasons, plaintiff's motion (Dkt. No. 12) is denied and defendant's motion

(Dkt. No. 16) is granted.

BACKGROUND

Plaintiff protectively filed an application for SSI benefits on February 12, 2015

alleging disability since June 25, 2013, and subsequently amending her alleged onset

date to June 26, 2014, due to bipolar disorder, personality disorder, and anxiety. (See Tr.

10, 30, 157, 177, 244).? Plaintiff filed a prior SSI application on June 26, 2014, which was

1 The Clerk of Court is directed to amend the caption accordingly.

? References to “Tr.” are to the administrative record in this case.

denied on initial review and not appealed? (Tr. 77). Plaintiffs current SSI benefits

application was initially denied on June 9, 2015. (Tr. 84-89). Plaintiff sought review of the

determination, and a hearing was held before Administrative Law Judge (“ALJ”) Melissa

Lin Jones on August 17, 2017. (Tr. 10, 28, 90-95). ALJ Jones heard testimony from

plaintiff, who was represented by counsel, as well as from Millie Droste, an impartial

vocational expert. (Tr. 28-74.). On October 24, 2017, ALJ Jones issued a decision that

plaintiff was not disabled under the Act. (Tr. 7-27). Plaintiff timely sought review of the

decision by the Appeals Council. (Tr. 153-156). Plaintiff's request for review of the

decision was denied by the Appeals Council on June 8, 2018. (Tr. 1-4). The ALJ's October

24, 2017 denial of benefits then became the Commissioner’s final determination, and the

instant lawsuit followed.

Born on December 9, 1991, plaintiff was 22 years old on the alleged disability onset

date and 25 years old on the date of the hearing. (Tr. 21, 34, 76). Plaintiff is able to

communicate in English, has at least a high schoo! education, and did not have any past

relevant work. (Tr. 21).

DISCUSSION

I. scope of Judicial Review

The Court's review of the Commissioner's decision is deferential. Under the Act,

the Commissioner’s factual determinations “shall be conclusive” so long as they are

“supported by substantial evidence,” 42 U.S.C. §405(g), that is, supported by “such

relevant evidence as a reasonable mind might accept as adequate to support [the]

3 Although the ALJ granted plaintiff's request to amend the alleged onset date during the hearirig, she

determined the relevant time period for this claim to be February 12, 2015, the date the current application

was filed. (Tr. 12). This Court takes no position on reapening or revision of the prior determination because

it does not affect the disability determination.

conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks

and citation omitted). “The substantial evidence test applies not only to findings on basic

evidentiary facts, but also to inferences and conclusions drawn from the facts.” Smith v.

Colvin, 17 F. Supp. 3d 260, 264 (W.D.N.Y. 2014). “Where the Commissioner's decision

rests on adequate findings supported by evidence having rational probative force,” the

Court may “not substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart,

312 F.3d 578, 586 (2d Cir. 2002). Thus, the Court’s task is to ask “whether the record,

read as a whole, yields such evidence as would allow a reasonable mind to accept the

conclusions reached’ by the Commissioner.” Silvers v. Colvin, 87 F. Supp. 3d 570, 574

(W.D.N.Y. 2014) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).

Two related rules follow from the Act's standard of review. The first is that “[i]t is

the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and to

appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health &

Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The second rule is that “[glenuine

conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d

at 588. While the applicable standard of review is deferential, this does not mean that the

Commissioner's decision is presumptively correct. The Commissioner's decision is, as

described above, subject to remand or reversal if the factual conclusions on which it is

based are not supported by substantial evidence. Further, the Commissioner's factual

conclusions must be applied to the correct legal standard. Kohler v. Astrue, 546 F.3d 260,

265 (2d Cir. 2008). Failure to apply the correct legal standard is reversible error. /d.

II. Standards for Determining “Disability” Under the Act

A “disability” is an “inability to engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment which can be expected to

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

not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Commissioner may find the

claimant disabled “only if his physical or mental impairment or impairments are of such

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

education, and work experience, engage in any other kind of substantial gainful work

which exists in the national economy, regardless of whether such work exists in the

immediate area in which he lives, or whether a specific job vacancy exists for him, or

whether he would be hired if he applied for work.” /d. § 423(d)(2)(A). The Commissioner

must make these determinations based on “objective medical facts, diagnoses or medical

opinions based on these facts, subjective evidence of pain or disability, and . . . [the

claimant’s] educational background, age, and work experience.” Dumas v. Schweiker,

712 F.2d 1545, 1550 (2d Cir. 1983) (first alteration in original) (quoting Miles v. Harris,

645 F.2d 122, 124 (2d Cir. 1981)).

To guide the assessment of whether a claimant is disabled, the Commissioner has

promulgated a “five-step sequential evaluation process.” 20 C.F.R. § 404.1520(a)(4);

416.920(a)(4). First, the Commissioner determines whether the claimantis “working” and

whether that work “is substantial gainful activity.” fd. § 404.1520(b); 416.920(b). If the

claimant is engaged in substantial gainful activity, the claimant is “not disabled regardless

of [his or her] medical condition or .... age, education, and work experience.” /d. Second,

if the claimant is net engaged in substantial gainful activity, the Commissioner asks

whether the claimant has a “severe impairment.” /d. § 404.1520(c); 416.920(c). To make

this determination, the Commissioner asks whether the claimant has “any impairment or

combination of impairments which significantly limits [the claimant's] physical or mental

ability to do basic work activities.” /d. As with the first step, if the claimant does not have

a severe impairment, he or she is not disabled regardless of any other factors or

considerations. /d. Third, if the claimant does have a severe impairment, the

Commissioner asks two additional questions: first, whether that severe impairment meets

the Act's duration requirement, and second, whether the severe impairment is either listed

in Appendix 1 of the Commissioner's regulations. or is “equal to” an impairment listed in

Appendix 1. fd. § 404.1520(d); 416.920(c). lf the claimant satisfies both requirements of

step three, the Commissioner will find that he or she is disabled without regard to his or

her age, education, and work experience. /d.

lf the claimant does not have the severe impairment required by step three, the

Commissioners .analysis proceeds to steps four and five. Before doing so, the

Commissioner must “assess and make a finding about [the claimant’s] residual functional

capacity ["RFC"] based on all the relevant medical and other evidence” in the record. /d.

§ 404.1520(e); 416.920(e). RFC “is the most [the claimant] can still do despite [his or her]

limitations.” fd. § 404.1545(a)(1); 416.945(a)(1). The Commissioner's assessment of the

claimant’s RFC is then applied at steps four and five. At step four, the Commissioner

“compare[s] [the] residual functional capacity assessment . . . with the physical and

mental demands of [the claimant's] past relevant work.” /d. § 404.1520(f);416.920(f). If,

based on that comparison, the claimant is able to perform his. or her past relevant work,

the Commissioner will find that the claimant is not disabled within the meaning of the Act.

fd. Finally, if the claimant cannot perform his or her past relevant work or does not have

any past relevant work, then at the fifth step the Commissioner considers whether, based

on the claimant's RFC, age, education, and work experience, the claimant “can make an

adjustment to other work." /d. § 404.1520(g)(1); 416.920(g)(1). If the claimant can adjust

to other work, he or she is not disabled. /d. If, however, the claimant cannot adjust to

other work, he or she is disabled within the meaning of the Act. /d.

The burden through steps one through four described above rests on the claimant.

If the claimant carries their burden through the first four steps, “the burden then shifts to

the [Commissioner] to show there is other gainful work in the national economy which the

claimant could perform.” Carroll, 705 F.2d at 642.

ill. The ALJ's Decision

The ALJ followed the required five-step analysis for evaluating plaintiff's claim.

Under step one, the ALJ found that plaintiff did not engage in substantial gainful activity

since. the application date of February 12, 2015. (Tr. 12). At step two, the ALJ found that

plaintiff had the following severe impairments: (1) anxiety disorder; (2) posttraumatic

stress disorder; and (3) syncope/pseudo seizures.* (Tr. 12). At step three, the ALJ

determined that plaintiff did not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments. (Tr. 13). Before

4 Also at step two, the ALJ noted that plaintiff testified that she had a bicycle accident that resulted in

subsequent memory loss, slow speech and seizures, and that she suffers from headaches a few times. a

week. (Tr. 12-13). The ALJ determined there is no evidence in the record that plaintiff's

headaches/traumatic brain injury significantly limit her ability to perform basic work activities. (/d.), The

symptoms from plaintiffs syncope/pseudo seizures have been incorporated in to the RFC determination.

Additionally, the ALJ notes that plaintiffs medical history shows a diagnosis of bipolar disorder, which

plaintiff testified was a misdiagnosis. (Tr. 13). Lastly, the ALJ noted that plaintiff testified about past issues

with substance abuse. (/d.} The ALJ concluded that the plaintiffs alechoi, cannabis, cocaine, and heroin

dependence/abuse are in sustained remission and are not severe impairments. (/d.).

§

proceeding to step four, the ALJ assessed plaintiff's residual functional capacity (“RFC”)

as follows:

[T]he [plaintiff] has the residual functional capacity to perform a full range of

work at all exertional levels but the [plaintiff] is only capable of simple,

routine, and repetitive tasks not performed at production-rate pace. She can

only have occasional interaction with supervisors and rare (meaning jiess

than occasional but not never, sometimes referred to as incidental)

interactions with coworkers or the public. She can make simple decisions

when dealing with changes in the work setting. She is unable to work at

unprotected heighis or around heavy moving mechanical parts. She can

only occasionally climb ladders, ropes, or scaffolds.

(Tr. 14-15).

Proceeding to step four, the ALJ concluded that plaintiff did not have any past

relevant work. (Tr. 21). Proceeding to step five, and after considering testimony from

Vocational Expert (“VE”) Droste in addition to plaintiffs age, work experience and RFC,

the ALJ found that there are other jobs that exist in significant numbers in the national

economy that plaintiff could perform, such as cleaner-hospital, cleaner-industrial, and

cleaner-ll. (Tr. 21). Accordingly, the ALJ found that plaintiff had not been under a disability

within the meaning of the Act from February 12, 2015, the date the application was filed,

through October 24, 2017, the date of the decision. (Tr. 22).

lV. Plaintiff's Challenges

Plainiiff argues that the ALJ's residual functional capacity (“RFC”) determination is

not supported by substantial evidence because the evidence of record shows that plaintiff

would not be able to sustain full-time work activity on a regular and continuous basis.

(See Dkt. No. 12-1 (Plaintiffs Memo of Law)). For the reasons that follow, the Court finds

that the ALJ considered all relevant evidence on the record and properly applied the

Social Security regulations in making the RFC determination. See 20 C.F.R. § 416.945;

SSR 96-8p, 1996 LEXIS 5.

Plaintiff contends that the ALJ erred in giving limited weight to the opinions of

plaintiff's mental health providers, which opined that plaintiff is unable to sustain full-time

work activity based on symptoms of anxiety ahd posttraumatic stress disorder.

Specifically, plaintiff asserts that the ALJ should have given greater weight to portions of

opinions from Ms. Brown, a mental health counselor at Horizon Health Care, and Ms.

Ostrom, a nurse practitioner at Horizon Health Care. Ms. Brown provided opinions in April,

March, and October 2015, which offered differing conclusions about the level of

impairment suffered by plaintiff, and were afforded varying weight by the ALJ, (Tr. 18-19,

308-310, 1043-1046, 1489).

Plaintiff takes specific issue with the ALJ’s evaluation of the October 13, 2015

Mental Residual Functional Capacity Assessment submitted by Ms. Brown. There, Ms.

Brown opined that plaintiff had only occasional ability to perform work-related mental

activities such as: maintain attention and concentration for extended periods; perform

activities within a schedule, maintain regular attendance and be punctual within

customary tolerances; and complete a normal workday and workweek without

interruptions from psychologically based symptoms. (Tr. 1043-1046). She estimated that

plaintiff was likely to be absent from work as a result of impairments or treatments. an

average of three days:per month, and that plaintiff would need. to take unscheduled breaks

from work approximately two to three times per work day. (Tr. 1045). She also stated that

plaintiff is “diagnosed w(ith] bipolar disorder and experiences mood lability that impair her

ability to complete tasks, concentrate on work related tasks, and manage her emotions in

stressful environments:” (/d.).

Plaintiff also challenges the ALJ's weighing of the April 11, 2017 Medical Source

Statement submitted by Ms. Ostrom. There, Ms. Ostrom opined that plaintiff was seriously

limited in several subdivisions of unskilled work capabilities, including understanding and

remembering very short and simple instructions, working in coordination with or proximity

to. others without distraction, and performing at a consistent pace with an unreasonable

number and length of rest periods. (Tr. 1373-1378). The statement includes an opinion

that plaintiff's ability to complete a normal workday and workweek without interruption

from psychologically based symptoms is “limited but satisfactory,” and an appraisal that

plaintiff is stressed by remaining at work for a full day. (Tr. 1375, 1377). She stated that

the average number of absences from work attributable to plaintiff's impaitments or

treatments was unknown. (Tr. 1377).

The Plaintiff argues that these opinions support a finding that her mental

impairments leave her unable to work on a “regular and continuing basis,” which is defined

in SSR 96-8p as working “8 hours a day, for 5 days a week, or an equivalent work

schedule.” To support this, she points to evidence that she dropped out of traditional

school, lost jobs because of her psychological symptoms, and required multiple

hospitalizations. Plaintiff submits: that Ms. Brown and Ms. Ostrom’s opinions about her

inability to sustain full-time work activity are also consistent with her own testimony about

her impairments (Tr. 37-49) and the opinions within several mental health reports from

other providers at Horizon Health Services which state that plaintiff is limited to part-time

work. (Tr. 1488-1491, 1493). It is noted, and the plaintiff concedes, that any opinion

assessing that plaintiff is “unable to work” full-time is not dispositive of the case because

that is an opinion on an issue reserved to the Commissioner. See 20 C.F.R. § 416.927(d).

The ALJ is responsible for assessing a claimant's residual functional capacity

based on all relevant medical and other evidence. 20 C.F.R. § 416.945; 946(c). In

determining RFC, the ALJ must consider objective medical evidence and medical source

opinions, as well as nonmedical information and claimant's own statements about the

intensity, persistence, and limiting effects of symptoms. /d. § 416.945; SSR 16-3p, 2016

SSR LEXIS 4. The Regulations further direct the ALJ to consider whether there are any

inconsistencies in the evidence, and the extent to which there aré any conflicts between

claimant's statements and the rest of the evidence about how a claimant's symptoms

affect her. Id. § 414.929(c)(4).

The treating source opinions at issue are those of a nurse practitioner and a mental

health counselor which are. not “acceptable medical sources” and are not entitled to

controlling weight under the applicable Regulations. See 20 C.F.R. 416.927(f); SSR 06-

O3p, 2006 SSR LEXIS 5. Nevertheless, the opinions of these “other sources” may be

considered by the ALJ when assessing the severity of claimant's impairment and ability

to work. Genjer v. Asfrue, 298 Fed. Appx. 105, 108 (2d. Cir. 2008). Opinions from these

medical sources, who are not technically deemed “acceptable medical sources” under

the rules, are. important and should be evaluated on key issues such as impairment

severity and functional effects, along with the other relevant evidence in the file. SSR 06-

O3p. Further, whether rendered by an acceptable or non-acceptable source, the more

consistent a medical opinion is with the record as a whole, the more weight should be

given to that opinion. See 20 C.F.R. § 416.927(c)(4); (f\(1). “In determining what weight

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to give ‘other medical evidence,’ the ALJ has more discretion and is permitted to consider

any inconsistencies found within the record.” Raney v. Barnhart, 396 F.3d 1007, 1010 (8t

Cir. 2005).

In her decision, the ALJ gave great weight to Ms. Brown's April and March 2015

opinions that plaintiff has no limitations in memory, sustaining concentration, persistence,

and pace, and social interaction; and that she has some limitation in adaptation and

change in routine due to problems being overwhelmed with multiple tasks. (Tr. 18). She

also gave considerable weight to the opinion of an unnamed treatment provider (Dr.

Wolin) who stated plaintiff should avoid exposure to large groups or situations where she

could be overwhelmed. (Tr. 18-19, 1491). The ALJ explained that she afforded substantial

weight to these opinions because they are supported by and consistent with plaintiff's

testimony about symptoms from anxiety and PTSD, her positive response to treatment,

and her considerable and continued daily activities. (Tr. 18-19). The RFC’s non-exertional

restrictions which limit the plaintiff to simple, unskilled work with occasional to rare social

interactions and only simple decision-making regarding changes in work setting are

reflective of these opinions.

The ALJ gave limited weight to Ms. Brown’s October 2015 opinion, as well as a

statement within her previous opinion that plaintiff was limited to part-time work, because

her “subsequent treatment notes throughout 2016 show that the [plaintiff] admitted that

she was doing well even though she was not following prescribed treatment and was

working at times throughout that year.” (Tr. 19). The ALJ gave some weight to Ms..

Ostrom’s. April 2017 opinion that plaintiff is seriously limited in social interactions and

behavior, performing detailed tasks, and handling the stress of semiskilled and skilled

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work. (Tr. 19). She explained that this opinion was consistent with the plaintiff's improved

anxiety at that time and plaintiff's overall positive response to treatment. (/d.) It was proper

for the ALJ to give more weight to the portions of Ms. Brown and Ms. Ostrom’s opinions

that are supported by the record, and to discount those portions that were contrary to

substantial evidence on the record. See Veino, 312 F.3d at 588 (holding that it is within

the province of the ALJ to resolve conflicts in the evidence and find parts of a treating

physician’s opinion unpersuasive as contrary to a consultative examination and lacking

objective medical evidence); Gray v. Colvin, 2015 LEXIS 110211, 2015 WL 5005755, at

*13 (W.D.N.LY. Aug. 20, 2015) (“The ALJ was within his discretion to accept certain

portions of [a medical] opinion, but reject those that were not supported by her own

treatment notes or other substantial record evidence).

In making her RFC assessment, the ALJ also considered medical evidence and

opinions from Christine Ransom, Ph.D., a consultative examiner from plaintiff's prior □□□

application; Dr. Santarpia, a consultative examiner for the current application; Mary

Webb, LCSW-R, a treating source; Olivia Smith-Blackwell, M.D., a treating physician

providing a physical ability assessment; and M. Marks, Ph.D., a State agency

psychological consultant. (Tr. 18-20). She awarded little weight to each of these opinions

for various reasons explained in her decision. (/d.). She also considered and gave little

weight to plaintiff's average Global Assessment of Functioning scores from mental health

providers and the submitted report of Mr. Collins, a friend of plaintiff. (Tr. 20). Reviewing

plaintiffs testimony that her mental health symptoms prevent her from working, ALJ

concluded that plaintiff's: “medically determinable impairments could reasonably be

expected to cause the alleged symptoms; however, the claimant's statements concerning

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

consistent with the medical evidence and other evidence on the record for the reasons

explained in this decision.” (Tr. 16).

The ALJ made her findings based on the relevant medical and other evidence in

accordance with 20 C.F.R. § 416.945(a)(3), and she discussed plaintiff's treatment

records, hearing testimony, and credibility in making the RFC determination. See

Majdandzic v. Comm’r of Soc. Sec., 2018 U.S. Dist. LEXIS 180068, at *14 (W.D.N.Y. Oct.

19, 2018). The decision provided a detailed discussion of what evidence the ALJ looked

to in weighing the mental function assessments and opinions. She pointed to April 2015

counseling notes. fram Ms. Brown which showed that, with continued medication and

treatment. compliance, plaintiff had a stable euthymic mood, normal thought processes

and content, and intact judgment. (Tr. 16, 308). During 2015, plaintiff also reported that

she was enrolled in school online and was working part-time in child care. (Tr. 16, 452,

998). Despite a period of increased anxiety related to a change in treatment providers

towards the end of 2015, the ALJ summarized that Horizon Health treatment notes from

mid-2016 reflect that plaintiff's symptoms were improving and she was displaying normal

mental functioning, e.g. normal judgment, normal thought content, and intact memory.

(Tr. 17). In November 2017, plaintiff told her treating physician that she was no longer

seeing a psychiatrist or mental health counselor nor taking any medications since

November 2015. She added that she “feels really good” and has infrequent attacks of

symptoms. (Tr. 17, 1286-1290). Horizon Health progress notes from September 2016

also record plaintiff stating that she felt good despite anxiety and inconsistently taking

medications. (Tr. 17, 497). The record also reflects that plaintiff was hospitalized for brief

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periods in January 2015 and January 2017. In both instances, the ALJ noted that plaintiff

suffered worsening anxiety without medications and experienced an improved condition

soon after resuming her medications. (Tr. 16-17, 298-307).

When evaluating disability, the ALJ acts appropriately in considering improvement

with treatment and the jongitudinal record of treatment successes and failures. See SSR

16-3p. Plaintiff's RFC was calculated based on substantial evidence that her anxiety and

other symptoms were notably reduced with medication, counseling, and other treatment.

see Reices-Colon v. Astrue, 523 Fed. Appx. 796, 799 (2d Cir. 2013) (substantial evidence

of symptom improvement found in treatment notes showing that medication “seems to be

helping” and that plaintiff was “feeling better” with treatment); Marnell v. Comm’r of Soc.

Sec., 2018 U.S. Dist. LEXIS 127046, 2018 WL 3620152, at *42 (W.D.N.Y. July 30, 2018)

(“The record, particularly a longitudinal review of the treatment notes, demonstrates that

although [plaintiff] suffered from bipolar disorder and generalized anxiety disorder, his

mental health symptoms and functioning generally improved when he was compliant with

his prescribed medication regimen). Here, substantial evidence is found on the record

showing that plaintiff's symptoms did improve with treatment and medication. The ALJ

did not err in making this assessment.

Despite Ms. Brown and Ms. Ostrom’s opinions that plaintiff would be absent from

work. more than three days per month, and would frequently be off task during the

workday, the ALJ was not bound to accept these views as determinative, but simply to

consider and weigh them in light of the entire record. See Matta v. Astrue, 508 Fed. Appx.

53, 56-57 (2d Cir. 2013) (ALJ did not err in giving less weight to treating psychiatrist's

opinion about excess absences from work because substantial evidence was found to

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support the conclusion that plaintiff, with proper treatment, could work on a regular and

continuing basis despite fluctuating symptoms and episodic nature of bipolar disorder).

Further, plaintiff's assertion that her history of losing jobs supports Ms. Brown and

Ms. Ostrom’s opinions is not sufficient to override the ALJ’s determination. A history of

being fired from jobs based on symptoms of mental impairments does not foreclose on

the conclusion that an individual can maintain substantial gainful employment with

appropriate occupational limitations. See Corbit v. Colvin, 2015 U.S. Dist. LEXIS 171178

(D. Conn. April 20, 2015) (holding that plaintiff's testimony and neuropsychologist opinion

that plaintiff had been fired several times and was at high risk for losing jobs because of

psychological problems (mood lability, irritability, low frustration tolerance, verbal

impulsivity, and difficulty with change) did not prevent a finding of substantial evidence

supporting the RFC determination that plaintiff could sustain the mental demands of

simple work); Aregano v. Astrue, 882 F.Supp. 2d 306 (W.D.N.Y. July 30, 2012):

remanded on other grounds (finding substantial evidence supporting ALJ's determination

that plaintiff had only moderate difficulties in social functioning despite evidence that he

had difficulty holding jobs because of problems getting along with people and not wanting

to go to work).

Plaintiff additionally argues that her syncopal episodes and head injury caused

by a bicycle accident in July 7, 2016 caused her disabling limitations. However, plaintiff

testified at the hearing that she had not had any syncope episodes in months and that

she did not remember the last time she had one. (Tr. 60). The ALJ described that

treatment notes show plaintiff suffering syncope/pseudo seizures. during 2015, but noted

the record shows only two episodes of syncope from 2016 through February 2017, which

15

includes a time period after plaintiff's bicycle accident. (Tr. 17-18). The ALJ detailed that

Plaintiff received treatment from Steven Horn, M.D., who diagnosed her with vasovagal

events and found that plaintiff had no recurrent syncope with lifestyle modifications as of

January 12, 2017. (Tr. 711-712, 729). Additionally, the record includes treatment records

from October 6, 2016 in which plaintiffs primary care physician, Dr. Smith-Blackwell,

notes that although patient reports “occasional palpitations, dizziness and lightheadness,

she is unsure if she has had further syncope.” (Tr. 718-720). Based on these “random,

but infrequent” episodes, the ALJ placed limitations on the plaintiff's ability to work in

unprotected heights, around heavy moving mechanical parts, and in climbing ladders,

ropes, and scaffolds. (Tr. 18). This Court holds that the ALJ did not err in determining

plaintiifs RFC capacity based on substantial evidence in the record relating to

syncope/pseudo seizures.

Overall, the ALJ determined that plaintiff experiences symptoms from anxiety and

posttraumatic stress disorders, but that her symptoms and functioning improved with

conservative treatment and did not prevent her from performing work with some non-

exertional limitations. (Tr. 17, 21). The Court finds that the ALJ did not err by failing to

fully credit the opinions set forth in the mental health assessments. The ALJ’s findings

are supported by substantial evidence in the record, and the RFC determination properly

reflects. areas where the evidence indicated substantial limitations in. functioning, e.g.

impairments: in handling stress, social interactions, decision-making, and adapting to

changes in workplace.

Lastly, Plaintiff argues that the ALJ improperly posed her hypothetical questions to

the vocational expert which prevented a finding of disability. Based on the opinions of Ms,

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Brown and Ms. Ostrom, plaintiff asserts that the ALJ should have included limitations of

plaintiff being off-task and missing more than three days of work per month. Here, the

hypothetical questions closely tracked the ALJ’s residual functional capacity assessment.

(Tr. 70-73). If the ALJ did not err in its residual functional capacity analysis, and the

vocational expert’s testimony shows that there are job existing in the national economy

that accommodate the RFC limitations, then substantial evidence supports the step-five

determination. See Suttles v. Colvin, 654 Fed. Appx. 44, 47-48 (2d Cir. 2016); accord

Mcintyre v. Colvin, 758 F.3d 146, 151-152 (2d Cir. 2014). Having found that substantial

evidence supported the ALJ’s RFC determination, this Court holds that hypothetical

questions posed to VE Droste were appropriate based on the RFC limitations.

CONCLUSION

For the foregoing reasons, plaintiff's motion for judgment on the pleadings (Dkt.

No. 12) is denied and the Commissioner’s motion for judgment on the pleadings (Dkt. No.

16) is granted.

The Clerk of Court shall take all steps necessary to close this case.

SO ORDERED.

Dated: November 26, 2019

Buffalo, New York

MICHAEL J. ROEMER

United States Magistrate Judge

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