Denea v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

W ESTERN DISTRICT OF NEW YORK

WILLIAM K. DENEA, JR.,

Plaintiff,

v.

18-CV-779

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

DECISION AND ORDER

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

undersigned conduct any and all further proceedings in this case, including entry of final

judgment. Dkt. No. 17. William Denea, Jr. (“Plaintiff”), who is represented by counsel,

brings this action pursuant to the Social Security Act (“the Act”) seeking review of the

final decision of the Commissioner of Social Security (“the Commissioner”) denying his

application for benefits. This Court has jurisdiction over the matter pursuant to

42 U.S.C. § 405(g). Presently before the Court are the parties’ competing motions for

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

Procedure. Dkt. Nos. 12, 15. For the following reasons, Plaintiff’s motion (Dkt. No. 12)

is denied, and the Commissioner’s motion (Dkt. No. 15) is granted.

BACKGROUND

On May 16, 2014, Plaintiff protectively filed a Title II application for a

period of disability and Disability Insurance Benefits, alleging disability beginning on

January 1, 2009, due to a learning disability, right leg cellulitis and infection, illness

“once or twice a year,” diabetes, a back injury, and a sore right shoulder. Tr. at 13, 202-

08, 249.1 Plaintiff’s application was denied at the initial level and he requested review.

Tr. at 13, 110-22, 124-37. Administrative Law Judge Sharon Seeley (“the ALJ”)

conducted hearings on September 21, 2016, and January 12, 2017. Tr. at 13, 29-109.

Plaintiff, who was represented by counsel, testified as well as an impartial vocational

expert. Tr. at 13, 29-109. On May 31, 2017, the ALJ issued a decision in which she

found that Plaintiff was not disabled and therefore, not eligible for benefits. Tr. at 10-24.

The Appeals Council denied Plaintiff’s request for review, making the ALJ’s

determination the final decision of the Commissioner. Tr. at 1-5. Plaintiff thereafter

commenced this action seeking review of the Commissioner’s decision. Dkt. No. 1.

LEGAL STANDARD

Disability Determination

An ALJ must follow a five-step process to determine whether an individual

is disabled under the Act. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). At

step one, the ALJ must determine whether the claimant is engaged in substantial gainful

work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,

the ALJ proceeds to step two and determines whether the claimant has an impairment,

or combination of impairments, that is “severe,” meaning that it imposes significant

restrictions on the claimant’s ability to perform basic work activities. 20 C.F.R. §

404.1520(c). If the claimant does not have a severe impairment or combination of

1Citations to “Tr. __” refer to the pages of the administrative transcript, which appears at Docket

No. 7.

impairments, the analysis concludes with a finding of “not disabled.” If the claimant

does, the ALJ continues to step three.

At step three, the ALJ examines whether a claimant’s impairment meets or

medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of

Regulation No. 4 (the “Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or

medically equals a Listings criterion and meets the durational requirement (20 C.F.R.

§ 404.1509), the claimant is disabled. If not, the ALJ determines the claimant’s residual

functional capacity (“RFC”), which is the ability to perform physical or mental work

activities on a sustained basis, notwithstanding limitations for collective impairments.

See 20 C.F.R. § 404.1520(e)-(f).

The ALJ then proceeds to step four and determines whether the

claimant’s RFC permits him or her to perform the requirements of his or her past

relevant work. 20 C.F.R. § 404.1520(f). If the claimant can perform such requirements,

then he or she is not disabled. If not, the analysis proceeds to the fifth and final step,

wherein the burden shifts to the Commissioner to demonstrate that the claimant “retains

a residual functional capacity to perform alternative substantial gainful work which exists

in the national economy” in light of the claimant’s age, education, and work experience.

See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see

also 20 C.F.R. § 404.1560(c).

District Court Review

42 U.S.C. § 405(g) authorizes a district court “to enter, upon the pleadings

and transcript of the record, a judgment affirming, modifying, or reversing the decision of

the Commissioner of Social Security, with or without remanding the cause for a

rehearing.” 42 U.S.C. § 405(g) (2007). Section 405(g) limits the scope of the Court’s

review to two inquiries: whether the Commissioner’s conclusions were based upon an

erroneous legal standard, and whether the Commissioner’s findings were supported by

substantial evidence in the record as a whole. See Green-Younger v. Barnhart, 335

F.3d 99, 105-106 (2d Cir. 2003). Substantial evidence is “more than a mere scintilla.”

Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). “It means such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Id. (emphasis

added and citation omitted). The substantial evidence standard of review is a very

deferential standard, even more so than the “clearly erroneous” standard. Brault v.

Comm’r of Soc. Sec., 683 F.3d 443, 447-48 (2d Cir. 2012) (citing Dickinson v. Zurko,

527 U.S. 150, 153 (1999)).

When determining whether the Commissioner’s findings are supported by

substantial evidence, the Court’s task is “‘to examine the entire record, including

contradictory evidence and evidence from which conflicting inferences can be drawn.’”

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d

1033, 1038 (2d Cir. 1983) (per curiam)). If there is substantial evidence for the ALJ’s

determination, the decision must be upheld, even if there is also substantial evidence

for the Plaintiff’s position. See Perez v. Chater, 77 F.3d 41, 46-47 (2d Cir. 1996); Conlin

ex rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 384 (W.D.N.Y. 2015). Likewise, where

the evidence is susceptible to more than one rational interpretation, the Commissioner’s

conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.

1982).

DISCUSSION AND ANALYSIS

The ALJ’s Decision

The ALJ analyzed Plaintiff’s claims using the familiar five-step process

described above. Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y.

Aug. 8, 2008) (detailing the five steps). At step one, the ALJ found that Plaintiff has not

engaged in substantial gainful activity since January 1, 2009, his alleged onset date. Tr.

at 15. At step two, she found that Plaintiff had the following severe impairments:

diabetes, recurrent cellulitis, obesity, right shoulder osteoarthritis, adjustment disorder,

and panic disorder. Tr. at 15-16.2 The ALJ noted that Plaintiff had been diagnosed with

other conditions that were controlled with medication and did not cause significant

limitations on his ability to perform work activity. Tr. at 15-16. She also recognized

Plaintiff’s allegations of low back pain, hearing impairment, and learning disability, but

noted that there was no diagnosis or evidence in the record supporting any of these

conditions. Tr. at 16. Of particular relevance, the ALJ noted that based on Plaintiff’s

claims that he had “infrequent dyslexia,” his school records were requested, “but the

school responded that they do not maintain records from the dates of the claimant’s

schooling.” Tr. at 16.

2 This Court presumes the parties’ familiarity with plaintiff’s medical history, which is summarized

at length in the papers.

At step three, the ALJ concluded that Plaintiff’s impairments did not, either

individually or in combination, meet or equal the Listings criterion, giving special

consideration to Listing 1.02 (Major Dysfunction of a Joint(s) Due to Any Cause), 8.04

(Chronic Infections of the Skin or Mucous Membranes), 12.04 (Depressive, Bipolar and

Related Disorders), and 12.06 (Anxiety and Obsessive Compulsive Disorders). Tr. at

16-17. Next, the ALJ found that Plaintiff retained the RFC to perform “less than a full

range of sedentary work as defined by 20 C.F.R. § 404.1567(a). Specifically, he can lift,

carry, push and pull 20 pounds occasionally and 10 pounds frequently, but cannot

perform repetitive pushing or pulling with the upper extremities. He can sit six hours in

an eight-hour workday and can stand and/or walk four hours in an eight-hour work day

but must be able to alternate after 30 minutes to sitting 10 minutes. He can

occasionally stoop, but cannot stoop repetitively and can never kneel, crouch, or crawl.

He can occasionally climb ramps or stairs, but never ladders, ropes or scaffolds. He

can occasionally reach overhead. He can perform work that does not involve exposure

to weather or to extreme heat or to humidity or wetness and does not require working

with the hands in the water or other liquids. Further[,] claimant can work in a low stress

environment (meaning one with no supervisory responsibilities, no independent decision

making required except with respect to simple, routine decisions, no more than

occasional changes in work routines, processes or settings, and no changing work

shifts or hours). He can have occasional, incidental interaction with coworkers but not

work in teams or tandem with others, and can have occasional, incidental interaction

with the general public.” Tr. at 18.

Continuing to the fourth step, the ALJ found that Plaintiff had no past

relevant work because he had always worked part-time, and this work had never

reached substantial gainful activity levels. Tr. at 23. Based on Plaintiff’s age (37 years

old on his alleged disability onset date; 45 years old on the date of the decision),

education (at least a high school education), and with the aforementioned RFC, the ALJ

found that he could perform work that exists in significant numbers in the national

economy, specifically, the jobs of surveillance system monitor (DOT No. 379.367-010),

document preparer (DOT No. 249.587-018), and order clerk (DOT No. 209.567-014).

Tr. at 23-24. Accordingly, concluded the ALJ, Plaintiff was not under a disability from

January 1, 2009, through the date of her decision, May 31, 2017. Tr. at 24.

Judgment on the Pleadings

As noted above, the parties have cross-moved for judgment on the

pleadings. Dkt. Nos. 12, 15. Plaintiff contends that the ALJ failed to develop the record

with necessary intelligence testing (Dkt. No. 12-1, pp. 9-13), and that the highly specific

RFC limitation regarding Plaintiff’s ability to handle stress is unsupported by substantial

evidence. Dkt. No. 12-1, pp. 13-18. The Commissioner contends that there was no

need for intelligence testing as there was ample record evidence relating to Plaintiff’s

cognitive functioning, including two opinions from consultative doctors (Dkt. No. 15-1,

pp. 15-22), and the ALJ supported her stress-related RFC limitation with substantial

evidence (Dkt. No. 15-1, pp. 20-28).3 Having reviewed the record, this Court finds that

3 Plaintiff has not raised any objections to the ALJ’s findings about his physical impairments.

Although this Court has reviewed the record in its entirety, this decision focuses solely on the

medical evidence relating to Plaintiff’s alleged learning disability and ability to handle stress.

the ALJ did not err by not ordering intelligence testing and that the contested RFC

limitation was substantially supported.

The Record Relating to Plaintiff’s Mental Health

“Social Security proceedings are inquisitorial rather than adversarial.”

Craig v. Comm'r of Soc. Sec., 218 F. Supp. 3d 249, 261 (S.D.N.Y. 2016) (quoting Sims

v. Apfel, 530 U.S. 103, 110-11 (2000)). “[I]n light of the essentially non-adversarial

nature of a benefits proceeding,” an “ALJ, unlike a judge in a trial, must [on behalf of all

claimants] . . . affirmatively develop the record. . . .” Lamay v. Comm’r of Soc. Sec., 562

F.3d 503, 508-09 (2d Cir. 2009) (internal quotation marks omitted). This duty includes

“investigat[ing] the facts and develop[ing] the arguments both for and against granting

benefits.” Sims, 530 U.S. at 111. Under the applicable regulations, the ALJ is required

to develop the claimant’s complete medical history. Pratts v. Chater, 94 F.3d 34, 37 (2d

Cir. 1996) (citing 20 C.F.R. §§ 404.1512(d)-(f)).

Whether the ALJ has satisfied his or her duty to develop the administrative

record is a “threshold question,” which a reviewing court must answer before

determining whether the Commissioner’s final decision is supported by substantial

evidence under 42 U.S.C. § 405(g). Craig, 218 F. Supp. 3d at 261. That is, “the court

must first be satisfied that the ALJ provided plaintiff with ‘a full hearing under the

Secretary’s regulations’ and also fully and completely developed the administrative

record.” Scott v. Astrue, No. 09-CV-3999 (KAM), 2010 WL 2736879, at *12 (E.D.N.Y.

July 9, 2010) (quoting Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755

(2d Cir. 1982)); see also Rodriguez v. Barnhart, No. 02-CV-5782 (FB), 2003 WL

22709204, at *3 (E.D.N.Y. Nov. 7, 2003) (“The responsibility of an ALJ to fully develop

the record is a bedrock principle of Social Security law.”) (citing Brown v. Apfel, 174

F.3d 59, 63 (2d Cir. 1999)).

“The duty to develop the record is particularly important where an

applicant alleges he is suffering from a mental illness, due to the difficulty in determining

whether these individuals will be able to adapt to the demands or ‘stress’ of the

workplace.” Merriman v. Comm’r of Soc. Sec., No. 14 Civ. 3510(PGG)(HBP), 2015 WL

5472934, at *19 (S.D.N.Y. Sept. 17, 2015) (internal citations omitted); Craig, 218 F.

Supp. 3d at 268; Franklin v. Comm’r of Soc. Sec., No. 17-CV-6894-JWF, 2019 WL

1230082, at *2 (W.D.N.Y. Mar. 15, 2019) (holding that “it is the ALJ’s duty to develop

the record and resolve any known ambiguities, and that duty is enhanced when the

disability in question is a psychiatric impairment”) (internal citations omitted).

At his hearing, Plaintiff testified that he has “infrequent dyslexia, trouble

with numbers reversing themselves occasionally.” Tr. at 71, 255. Plaintiff argues that

the ALJ should have ordered intelligence testing regarding this alleged learning

disability because Plaintiff’s educational records, which were several decades old, had

been destroyed. This Court finds that the destruction of the educational records did not

create a gap in the record and the record overall was more than adequate for the ALJ to

assess Plaintiff’s ability to do work. It bears noting that despite the non-adversarial

nature of social security proceedings, a claimant still bears the burden to produce

evidence proving that he or she is disabled. Burgess v. Astrue, 537 F.3d 117, 128 (2d

Cir. 2008); see also Bowen, 482 U.S. at 146 n.5 (“It is not unreasonable to require

claimant, who is in a better position to provide information about his own medical

condition, to do so.”)

Plaintiff cites no record evidence substantiating his self-diagnosis of

“infrequent dyslexia.” Tr. at 77.4 None of Plaintiff’s medical treatment providers or

consulting doctors diagnosed him with a learning disability or other cognitive deficit that

would interfere with his ability to do work. Plaintiff’s treating physician, Dr. Priscella

Dale, observed that Plaintiff was alert and oriented with clear speech during his medical

examinations. Tr. at 387, 400, 406, 417. At various times, Dr. Dale did opine that

Plaintiff’s judgment, intelligence, and life skills were less than ideal. For example, on

March 4, 2011, Dr. Dale noted that Plaintiff was “not using particularly good judgment”

by “flatly refus[ing]” diabetic treatment and hospitalization,5 but that Plaintiff “appeared

to know what he [wa]s doing.” Tr. at 381-82. Although Dr. Dale observed in August of

2014 that Plaintiff had “borderline low intelligence” and “limited skills,” she did not

formally diagnose him with an intellectual disability or psychiatric condition. Tr. at 623.

The ALJ accommodated these limitations in the RFC, which restricted any independent

decision making to simple, routine decisions. Tr. at 22.

4 Plaintiff testified, “I have infrequent dyslexia, trouble with numbers reversing themselves

occasionally. And I had a code from the League of the Handicapped, but I do not remember

what that code was. It was many years ago.” Tr. at 71.

5 Plaintiff’s weight fluctuated between high 300s and low 400s throughout the relevant period,

generally exceeding the capacity of his doctor’s scales. Tr. at 382. Moreover, Plaintiff was

often non-compliant with his doctor’s treatment recommendations. Plaintiff declined to be

hospitalized when his diabetes became “out of control” when he ran out of medication, and was

“forced” to go to the doctor “by his boss.” Tr. at 381.

Consulting examiner Dr. Christine Ransom, who evaluated Plaintiff on

September 5, 2014, for alleged learning disability and panic attacks, noted that Plaintiff

completed two years of college,6 “was in regular education,”7 and “worked most of his

life doing general labor.” Tr. at 504. She noted that: Plaintiff was “cooperative and

socially appropriate;” he was neat and casual with adequate hygiene and grooming,

appropriate eye contact, coherent and goal directed thought processes, and a full range

of affect with a neutral mood; he was oriented as to person, place, and time with intact

attention and concentration; he had the ability to count backwards from 20, do simple

calculations and serial threes without error; his immediate, recent and remote memory

were intact; and he had average intelligence. Tr. at 504-506. According to Dr. Ransom,

Plaintiff denied any cognitive symptoms and deficits, and reported that his concentration

was good, that he enjoyed a variety of hobbies and interests, that he socialized with

family and friends, was able to manage money, cook and prepare food, shop, and do

laundry. Tr. at 504-506. Dr. Ransom concluded that “[t]his individual will show no

evidence of difficulty following and understanding simple directions and instructions,

performing simple tasks independently, maintaining attention and concentration for

simple tasks, maintaining a simple regular schedule and learning simple new tasks.” Tr.

at 506. She concluded that the results of the evaluation were consistent with a mild

psychiatric condition [panic disorder, currently mild] which will not significantly interfere

with the claimant’s ability to function on a daily basis.” Tr. at 506.

6 Plaintiff testified that he had an associate degree from Erie County Community College in

Small Business Management with minors in Journalism and Advertising. Tr. at 70.

7 In his benefits application, Plaintiff stated that he was in special education classes in school.

Tr. at 250.

Dr. Hillary Tzetzo reviewed Plaintiff’s medical records in September 2014

and assessed his mental limitations. Tr. at 115-16, 120. Based on her review,

Dr. Tzetzo concluded that Plaintiff had no limitations in his abilities to understand,

remember, and carry out simple instructions and tasks. Tr. at 115-16.

Moreover, Plaintiff did not present himself as a person with cognitive

deficits. Plaintiff testified that he can read and write, do simple math, and that he

possessed self-taught skills as a game designer although he “did not have any

accreditation for that.” Tr. at 71. He testified that he worked part-time rather than full-

time at work so that he could take care of his disabled sister, because “[f]amily

responsibility trumps income.” Tr. at 80. At various points during his hearing testimony,

Plaintiff used relatively sophisticated language such as “I wish to retract that,” “It would

have been too hard on my leg, my back, the constant lifting and bending and . . . being

in a small, confined space,” “I have a tendency to . . . retain heat,” “[m]y doctor

prescribed me to keep my leg elevated to restore . . . blood flow,” and “[t]hat is a very

highly variable number . . due to [the] reduced capacity of the new restaurant . . .,” and

“There was a large confrontation on Cinco de Mayo . . . . [regarding a] few mismatched

plates, which would’ve looked unprofessional in a restaurant that was known for its high

quality and standards.” Tr. at 74, 82, 83, 84.

Plaintiff testified as follows about being fired from a restaurant job at a high

end restaurant:

“Chef Scott released me from employment because he did not feel he could

work with me. . . . Chef Scott was very uncomfortable with anyone with

manners. I try to be polite in my day-to-day conversations. . . . I have high

standards[, w]hich is part of the reason why working at Walmart is killing me.

But Chef Scott was unable to accept my standards, and I was unable to

accept Chef Scott’s, as he has a much lower quality function of food and

dining expectations than Chef Dan. So we were incompatible.”

Tr. at 85. While Plaintiff’s testimony might support a finding that he was eccentric or

had difficulty getting along with others, it does not effectively counter Dr. Ransom’s and

Dr. Tzetzo’s shared conclusion that Plaintiff was capable of performing simple and

routine tasks.

Having reviewed the record, this Court finds that it contained sufficient

evidence for the ALJ to determine how Plaintiff’s intellectual limitations would impact his

ability to do work. Specifically, the destruction of Plaintiff’s decades old educational

records did not create an obvious gap in the record which required cognitive testing.

Rosa, 168 F.3d at 79 n.5 (holding “where there are no obvious gaps in the

administrative record, and where the ALJ already possesses a complete medical

history, the ALJ is under no obligation to seek additional information in advance of

rejecting a benefits claim”). Accordingly, this Court declines to remand on this basis.

Stress Limitations on Plaintiff’s RFC

Plaintiff argues that the ALJ’s determination that he retained the RFC for a

limited range of low-stress work was not “tethered” to the medical evidence. Dkt. No.

12-1, pp. 14-18. This Court does not agree. As an initial matter, Plaintiff bears the

burden of showing that he cannot perform the RFC found by the ALJ and is incapable of

performing substantial gainful activity during the period in question. 20 C.F.R. § 1512.

Although the record shows that Plaintiff handled stress poorly at times, the factors cited

by Plaintiff that caused him stress were largely episodic and/or situational rather than

disabling. Moreover, Plaintiff’s deficits in stress management would, in this Court’s

view, be mitigated by limiting him to low-stress work that was not performed in teams or

in tandem with others as the ALJ directed. Tr. at 18.

By way of example, in 2011 and 2012, Plaintiff reported to Dr. Dale that he

was in a “very stressful situation,” due to a lack of transportation and his father being in

and out of the hospital. Tr. at 354, 381. As a legal matter, deficits in mental health

brought upon by situational stress are not necessarily disabling. Gates v. Astrue, 627

F.3d 1080, 1082 (8th Cir. 2010) (“The medical record supports the conclusion that any

depression experienced by Gates was situational in nature, related to marital issues,

and improved with a regimen of medication and counseling.”); Gonzalez v. Comm'r of

Soc. Sec., No. 6:07-CV-629, 2010 WL 55933, at *5 (N.D.N.Y. Jan. 5, 2010) (holding

that substantial evidence supported the ALJ’s finding that it was claimant’s “situational

periods of stress arising from problems with her children, her extended family, and

financial difficulties, rather than any underlying psychopathology” that interfered with her

ability to work). Moreover, the situational stressors in Plaintiff’s life did not appear to

disable him from work. Although he reported to Dr. Dale that he had “stress in his life”

and was “exhausted taking care of everyone,” he did make time to play Dungeons and

Dragons once a week and was looking for other activities to “fill the time more often.”

Tr. at 354, 381. Plaintiff also testified that he only limited his work hours to part-time

because he needed to care for his sister, not because he was unable to handle work

stress, and that he often worked 14 to 18 hours per day and performed maintenance

tasks for his landlady. Tr. at 79-80, 97, 105, 283.

As proof that he is disabled from even low-stress work, Plaintiff notes that

in September of 2016, he was suspended from working at Walmart for 30 days after he

argued with another employee and said, “I’d rather be bleeping dead than work here.”

Tr. at 697. Construing his statement as a suicidal threat, Walmart management called

the police who took Plaintiff to Erie County Medical Center for assessment. Tr. at 710.

At ECMC, Dr. John M. Improta discharged Plaintiff after finding that he was not a

suicide risk, and in fact: was in no apparent distress; had a cooperative attitude; and

had appropriate, calm behavior with coherent speech, a neutral, euthymic mood, an

expressive, congruent affect, as well as organized, goal directed, reality based,

concrete thought processes. Tr. at 707. Dr. Improta noted that Plaintiff was “very

forthcoming with information, but somewhat sarcastic, childlike, . . . speak[ing] as a

teenager would.” Tr. at 707. Plaintiff was “mak[ing] jokes” during his evaluation such

as, “Am I going to have to look at inkblots? Dam[n]! I never get a chance to talk to a

psychologist, thought I’d get to see an inkblot.” Tr. at 710.

Substantial evidence supports the finding that the Walmart episode was

an isolated incident and that Plaintiff did not, in fact, have suicidal ideations. For

example, Dr. Kathleen King, Plaintiff’s treating physician, opined on September 29,

2016, immediately following the incident, that his conduct was a product of an altered

mental status, because Plaintiff did not have any issues with work suspensions or

aggressiveness in the past. Tr. at 698. She noted that while Plaintiff “does have a

somewhat odd outlook on life and affect,” the outburst was not typical of him and the

behavior correlated with some physical symptoms. Tr. at 698. At that time, Dr. King

opined that Plaintiff’s Walmart job did not present a health hazard to him “other than his

ability to handle the stress,” Tr. at 699, which she later noted had improved to the point

that he “seem[ed] his usual self” in December 2016. Tr. at 702. Dr. King reported,

Plaintiff “ha[d] a positive and attention seeking demeanor,” and “though he express[ed]

negative thoughts[,]” he “denie[d] depression or anxiety as usual.” Tr. at 704. Plaintiff

returned to work at Walmart on December 3, 2016, less than 3 months after he was

suspended, and continued to work part-time as of his second hearing on January 12,

2017, apparently without incident. Tr. at 36-37. Based on this evidence, it cannot be

said that Plaintiff’s stress symptoms continued for a period of at least 12 months during

the relevant period, the durational requirement to establish disability. Barnhart v.

Walton, 535 U.S. 212, 216-22 (2002).

This Court is also not persuaded that Dr. King’s statement that part-time

work at Walmart would not harm him “other than his ability to handle stress” was so

vague as to trigger the ALJ’s duty to recontact the physician. An ALJ need only

recontact a treating physician where the record is insufficient to determine the

claimant’s RFC. Jasen v. Comm’r of Soc. Sec., No. 16-CV-6153P, 2017 3722454, at

*12 (W.D.N.Y. Aug. 29, 2017). Dr. King’s treatment records contained more than

enough information to determine whether Plaintiff’s ongoing ability to handle stress was

compromised: the doctor stated Plaintiff’s conduct at Walmart was aberrant and likely

related to a physical condition and that he was back to “usual self” – denying depression

or anxiety – within a matter of weeks. Tr. at 698, 704. These findings were

corroborated by Plaintiff’s successful return to part-time work at Walmart, and Dr.

Ransom’s and Dr. Tzetzo’s conclusion that he had only mild difficulties dealing with

stress. Tr. at 115-16, 120, 506. Where, as here, the evidence already in the record

was “adequate for [the ALJ] to make a determination as to disability[,]” there was no

need for the ALJ to develop the record further. Perez, 77 F.3d at 48.

Finally, this Court is satisfied that any deficits in Plaintiff’s ability to handle

stress on a regular basis were addressed by the limitations built into the RFC, which

were supported by substantial evidence. All of the foregoing evidence shows that

Plaintiff’s stress was largely situational and episodic, and that Plaintiff could as a

general matter, perform low stress work. Other evidence does as well. For example,

Dr. Dale in June 2009, noted that Plaintiff reported some symptoms of depression, but

did “not appear to be clinically depressed.” Tr. at 407. The physician reported that the

interruptions in Plaintiff’s part-time work as a dishwasher were due to his cellulitis, and

not to any inability to handle stress. Tr. at 408, 529, 533, 713. Plaintiff himself stated

that his purported depression did not affect his ability to work “at all.” Tr. at 670.

Plaintiff suggests that Dr. Dale’s August 2014 opinion that he was

“unemployable” due to “borderline low intelligence,” “limited skills,” and other physical

limitations (Tr. at 623) compels a finding that he could not perform even low-stress

work. This Court does not agree. In her decision, the ALJ afforded “great weight” to Dr.

Dale’s factual findings, explicitly stating that “[t]he limitations suggested by Dr. Dale are

reflected in the above [RFC].” Tr. at 22. This was entirely appropriate. The ALJ was

not legally bound to adopt Dr. Dale’s conclusion that Plaintiff was “unemployable,” as

“the ultimate finding of whether a claimant is disabled and cannot work . . . [is] reserved

to the Commissioner.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (internal

quotations and citations omitted).

Plaintiff disagrees with the ALJ’s evaluation of the evidence. However, the

substantial evidence standard is so deferential that “there could be two contrary rulings

on the same record and both may be affirmed as supported by substantial evidence.”

Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 127 (2d Cir. 2012). That is, “once an ALJ

finds the facts, [a reviewing 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). This is not the case here. For all of the foregoing reasons, this

Court finds that the ALJ’s decision is free from legal error and is supported by

substantial evidence.

CONCLUSION

For the reasons stated herein, Plaintiff’s motion for judgment on the

pleadings (Dkt. No. 12) is hereby DENIED, and the Commissioner’s motion for

Judgment on the pleadings (Dkt. No. 15) is GRANTED. The Clerk of the Court is

directed to close this case.

SO ORDERED.

DATED: Buffalo, New York

March 2, 2020

s/ H. Kenneth Schroeder, Jr.

H. KENNETH SCHROEDER, JR.

United States Magistrate Judge