# Morgan v. Commissioner of Social Security

> District Court, W.D. New York · November 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10361534

## Case

- **Court:** District Court, W.D. New York
- **Decided:** November 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10361534

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

10

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

11

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

12

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

13

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

14

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,

16

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361534. Public record. Not legal advice.