Pawlak v. Commissioner of Social Security

Whe a LS,

\ YUN -8 2020)

UNITED STATES DISTRICT COURT \ Mer. oy

WESTERN DISTRICT OF NEW YORK NGS Loswencu SS

ERN DISTRICTS

RICHARD JOHN PAWLAK,

19-CV-165-MJR

DECISION AND ORDER

Plaintiff,

-\V-

ANDREW SAUL,

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. 16).

Plaintiff Richard John Pawlak 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 finding him ineligible for 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. 11) is denied, the Commissioner's motion (Dkt. No. 14) is granted, and

the case is dismissed.

BACKGROUND'

Plaintiff protectively filed an application for SSI on January 6, 2015, alleging a

disability as of May 1, 2013, due to myocardial infarction, high blood pressure,

osteoarthritis, right-knee pain, anxiety, and depression. (Tr. 15, 231-235, 260).? His

Court assumes the parties’ familiarity with the record in this case.

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

claim was initially denied on January 19, 2016. (Tr. 162-173). On February 16, 2016,

Plaintiff filed a timely written request for a hearing. (Tr. 176-178).

On February 12, 2018, a hearing was conducted by Administrative Law Judge

(“ALJ”) Stephen Cordovani, in Buffalo, New York. (Tr. 38-83). Plaintiff appeared, along

with his attorney. A vocational expert also appeared.

On May 2, 2018, the ALJ issued a decision finding Plaintiff not disabled. (Tr. 12-

37). That decision became final when on December 3, 2018, the Appeals Council denied

his request for review. (Tr. 1-6). This action followed.

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]

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 fo 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, 67 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 canflicts 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

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 physica! 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 twelve (12) months.” 42 U.S.C. §§423(d)(1)(A), 1382c(a)(3)(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

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exists for him, or whether he would be hired if he applied for work.” /d. §§423(d)(2)(A),

1382c(a)(3)(B). 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 claimant is “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.

§§404.1520(b), 416.920(b). Second, if the claimant is not 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.” fd. §§404.1520(c),

416.920(c).. 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. □□□□

$§404.1520(c), 416.920(c). 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

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Appendix 1. /d. §§404.1520(d), 416.920(d). If 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. §§404.1520(d), 416.920(d).

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

Commissioner's 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. □□□

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

her] limitations.” /d. §§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. Id. §§404.1520(f), 416.920(f). 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.” fd.

§§404.1520(g)(1), 416.920(g}(1). If the claimant can adjust to other work, he or she is

not disabled. fd. §§404.1520(g)(1), 416.920(g}(1). If, however, the claimant cannot

adjust to other work, he or she is disabled within the meaning of the Act. □□□

§§404.1520(g)(1), 416.920(g)(1).

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

If the claimant carries his 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.” Carroff, 705 F.2d at 642.

TU. The ALJ’s Decision

The ALJ followed the required five-step analysis for evaluating disability claims.

Under step one, the ALJ found that Plaintiff had not engaged in substantial activity since

January 6, 2015, the application date. (Tr. 18). At step two, the ALJ concluded that

Plaintiff has the following severe impairments: major depressive disorder, recurrent,

without psychotic features; post-traumatic stress disorder with panic attacks;

degenerative joint disease of the right. knee/patellofemoral syndrome; asthma/chronic

obstructive pulmonary disease; and obesity. (Tr. 18-20). At step three, the ALJ found

that Plaintiff did not have an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments. (Tr. 20-23). Before

proceeding to step four, the ALJ assessed Plaintiffs RFC, in pertinent part, as follows:

[T]he claimant has the residual functional capacity to perform

medium work... except the claimant can frequently climb

ramps and stairs, but never climb ladders, ropes, or scaffolds.

The claimant can occasionally kneel, crouch, crawl, and

squat. The claimant must avoid work on uneven ground. The

claimant must avoid concentrated exposure to fumes, odors,

dusts, gases, poor ventilation, and other respiratory irritants.

The claimant is capable of work in a low stress work

environment reflected by understanding, remembering, and

carrying out simp!e and routine instructions and. tasks, no

supervisory duties, no independent decision-making, no strict

production quotas or production rate pace, minimal changes

in work routine and processes. The claimant can have

occasional interaction with supervisors with no or only

incidental interaction with co-workers and the general public.

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(Tr. 23). Proceeding to step four, the ALJ found that Plaintiff has no past relevant work.

(Tr. 30). At step five, the ALJ found that, considering Plaintiff's age, education, work

experience, and RFC, there are jobs that exist in significant numbers in the national

economy that he can perform, such as Laundry Worker Il, Kitchen Helper, and Floor

Waxer. (Tr. 30-31). Accordingly, the ALJ concluded that Plaintiff is not disabled under

the Act. (Tr. 31).

IV. Plaintiffs Challenge

Piaintiff argues that the ALJ erred by failing to evaluate properly the medical

opinions of his treating physician, Dr. James Matthews, M.D., and that the case must

therefore be remanded. The Court disagrees.

On February 16, 2015, Dr. Matthews, Plaintiffs primary-care doctor, completed a

“Medical Report for Determination of Disability’ in which he wrote that Plaintiff had severe,

disabling anxiety and could not work. (Tr. 611-12). He further indicated that Plaintiff had

marked restrictions in activities of daily living and a seriously impaired ability to relate to

others. (Tr. 612).

On June 25, 2015, Dr. Matthews completed a different form in which he indicated

that Plaintiff had “disabling anxiety” and chronic pain. (Tr. 609-10). Dr. Matthews

concluded that Plaintiff was moderately limited in walking, standing, sitting, and using his

hands and very limited in lifting, carrying, pushing, pulling, and bending. (Tr. 610).

. Additionally, he wrote that Plaintiff was very limited in maintaining attention and

concentration. (Tr. 610). Dr. Matthews also opined that Plaintiff was moderately limited

in understanding, remembering, and carrying out instructions; making simple decisions;

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interacting appropriately with others; and maintaining socially appropriate behavior. (Tr.

610). Dr. Matthews wrote that Plaintiff was unable to work (Tr. 610).

The ALJ considered but gave only little weight to Dr. Matthews’s opinions. (Tr.

29). The ALJ found that the limitations contained in Dr. Matthew's opinions were

inconsistent with the evidence as a whole, including Plaintiff's daily activities and the

normal findings from his musculoskeletal, neurological, and psychiatric examinations.

(Tr. 29}. Further, Dr. Matthews’s opinions contained no specific work-related limitations

and addressed an issue reserved to the Commissioner. (Tr. 29). Contrary to Plaintiff's

argument, the Court finds that there is substantial evidence to support how the ALJ

weighed Dr. Matthews’s opinions.

Under the “treating physician rule” set out in 20 C.F.R. section 416.927(c), the

opinion of a claimant's treating physician is given controlling weight if it is well-supported

by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in the case record. See Greek v. Colvin,

802 F.3d 370, 375 (2d Cir. 2015). When a treating physician's opinion is not entitled to

controlling weight, the ALJ must consider the following factors: (1) the frequency of

examination; (2) the length, nature, and extent of the treatment relationship; (3) the

degree to which the treating physician cites evidence to support his or her opinion; (4) the

consistency of the opinion with the record as a whole; (5) whether the opinion is from a

specialist; and (6) other factors that tend to support or contradict the opinion. See 20

C.F.R. § 416.927(c)(1)-(6); see also Estrefla v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019)

(identifying the factors that the ALJ must consider when weighing medica! opinions).

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A reviewing court should remand for failure to explicitly consider the relevant

factors unless a “searching review of the record shows that the ALJ has provided ‘good

reasons: for [the] weight assessment.” See Guerra v. Saul, No. 18-2646-CV, 2019 WL

4897032, at *1 (2d Cir. Oct. 4,2019). The agéncy’s regulations do not require a “slavish

recitation of each and every factor where the ALJ's reasoning and adherence to the

regulation are clear.” Atwater v. Astrue, 542 F. App’x 67, 70 (2d Cir. 2013).

Here, although the ALJ did not explicitly consider the relevant regulatory factors,

the Court finds that the ALJ gave several good reasons, supported by substantial

evidence, for giving only little weight to Dr. Matthews’s opinions. As the. ALJ observed

initially, Dr. Matthews’s statements that Plaintiff could not work addressed an issue

reserved to the Commissioner, and thus were not medical opinions that could ever be

entitled to controlling weight. (Tr. 29,610-611). See 20 C.F.R. § 416.927(d)(1) (opinions

on matters that are reserved to the Commissioner are not “medical opinions” as defined

in the regulations and receive no special significance); Claymore v. Astrue, 519 F. App’ x

36, 38 (2d Cir. 2013) (a treating physician’s statement that the claimant is disabled cannot

itself be determinative); Taylor v. Barnhart, 83 F. App’x 347, 349 (2d Cir. 2003) (opinion

that the claimant was “temporarily totally disabled” was not entitled to any weight because

the ultimate issue of disability is reserved for the Commissioner): Valdez v. Colvin, 232

F. Supp. 3d 543, 553 (S.D.N.Y. 2017) (the opinion of a treating doctor that the claimant

is “disabled” or “unable to work” is not controlling because such statements are not

medical opinions, but rather opinions on issues reserved to the Commissioner).

Although those statements were not entitled to controlling weight, the ALJ weighed

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them, along with the remainder of Dr. Matthews’s opinions, using the regulatory factors

for weighing medical opinions. The ALJ acknowledged that Dr. Matthews was Plaintiff's

treating and examining doctor. (Tr. 29). See 20 C.F.R. § 416.927(c)(1)-(2) (recognizing

that the agency generally gives more weight to the opinions from treating and examining

sources). However, the ALJ determined that Dr. Matthews’s opinions merited only little

weight because they were inconsistent with the generally normal findings from Plaintiff's

musculoskeletal, neurological, and psychiatric examinations. (Tr. 29). See 20 C.F.R. §

416.927(c)(4) ("Generally, the more consistent an opinion is with the record as a whole,

the more weight we will give to that opinion.”); Halloran v. Bamhart, 362 F.3d 28, 32 (2d

Cir. 2004) (a treating physician's opinion is not afforded controlling weight where it is

inconsistent with other substantial evidence in the record).

As noted above, Dr. Matthews concluded that Plaintiff was moderately limited in

walking, standing, sitting, and using his hands, and very limited in {ifting, carrying,

pushing, pulling, and bending, due to “chronic pain.” (Tr. 609-610). However, Dr.

Matthews's own physical examinations of Plaintiff were generally normal, revealing only

a “mild” or “small” knee effusion on two occasions, and thickened tendons in his hands

on one occasion. (Tr. 668, 684, 740). Dr. Matthews’s other physical examinations of.

Plaintiff were generally normal. (Tr. 665, 672, 674, 681, 689, 692, 695, 697, 700-701,

704, 707, 713, 716, 722, 728,1416, 1421, 1428). Indeed, Dr. Matthews consistently

observed that Plaintiff looked well and was in no distress (Tr. 672, 681, 684, 687, 695,

710, 740, 1416, 1421, 1428). Thus, there was substantial evidence for the ALJ to find

that Dr. Matthews's treatment notes did not support that Plaintiff had significant physical

limitations.

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Examinations by Plaintiffs other treatment providers similarly contradicted Dr.

Matthews’s opinions about Plaintiffs physical limitations. For example, orthopedic

examinations revealed that Plaintiffs knees had mild to moderate tenderness, but full or

nearly-full range of motion, full strength, full sensation, and no effusions or instability. (Tr.

1196, 1199). Imaging studies of Plaintiff's knees were normal or showed only “very early”

degenerative joint disease. (Tr. 457, 774, 1190). Other examinations revealed that

Plaintiffs lower extremities had full range of motion, full strength, and full sensation. (Tr.

356, 415, 518-19, 901, 1044, 1131, 1340, 13614, 1386). Further, Plaintiff consistently

had a normal gait. (Tr. 356, 415, 518-19, 601, 901, 956, 1036, 1044, 1071, 1594).

Physical examinations. by Dr. Rania Karam Bayoumi, Dr. Matthew's colleague, were

unremarkable. (Tr. 725, 728, 731, 737).

A November 2015 consultative examination by Dr. John Schwab, D.O., similarly

revealed only minimal findings. (Tr. 630-35). Specifically, Plaintiff had full range of

motion in his back, neck, shoulders, elbows, and forearms; stable and non-tender joints;

normal strength, reflexes, and sensation in his upper and lower extremities; no edema or

muscle atrophy in his extremities; and full strength and dexterity in his hands (Tr. 631,

633). An x-ray of Plaintiff's lumbar spine was normal. (Tr. 635). Dr. Schwab opined that

Plaintiff had only mild restrictions in walking and climbing stairs/ladders. (Tr. 633).

The above normal or mild findings support the ALJ’s finding that the physical

limitations contained in Dr. Matthews’s opinions were inconsistent with the record. See

Woodmancy v. Colvin, 577 F. App’x 72, 75 (2d Cir. 2014) (ALJ properly assigned little

weight to treating physician's opinion when contradicted by unremarkable clinical

findings); 20 C.F.R. § 416.929(c)(2) (objective evidence showing reduced joint motion,

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muscle spasm, sensory deficit, or motor disruption is a useful indicator of the intensity

and persistence of a claimant's symptoms).

The clinical findings from Plaintiff's psychiatric examinations similarly did not

support Dr. Matthews’s opinions that Plaintiff had disabling mental limitations. For

example, although Plaintiff frequently appeared anxious or agitated at Dr. Matthews's

appointments (Tr. 668, 681, 704, 713, 715), those symptoms often coincided with Plaintiff

being out of his medication from non-compliance, or with situational stressors, such as

the death of his girlfriend or losing his housing. (Tr. 686, 688, 703-704, 706, 709, 712—

713,715, 719). See Taillon v. Comm’r of Soc. Sec., No. 17-CV-6812, 2019 WL 1396837,

at (W.D.N.Y. Mar. 28, 2019) (“Situational stressors are not a basis for a finding of

disability and may be considered when evaluating a claimant's subjective reports.”).

Moreover, the mere fact that Plaintiff was anxious or agitated does not necessarily mean

that he was unable to work. Further, Plaintiff had an appropriate mood and affect at other

appointments with Dr. Matthews. (Tr. 710, 728, 740).

The psychiatric or neurological examinations performed by Plaintiff's other treating

providers similarly did not support that Plaintiff had disabling mental limitations. Because

Plaintiff frequently missed his counseling appointments and rarely, if ever, saw a

psychiatrist during his mental-health treatment at Spectrum Human Services, those

records contained few mental-status examinations. (Tr. 624, 993, 1415, 1419, 1457,

1460, 1582-1583). Even then, as the ALJ noted, the mental-status examinations that

were performed revealed relatively few abnormal findings. (Tr. 27, 1587-1589, 1591,

1594). Further, a neurological examination conducted for Plaintiffs purported memory

loss was normal. (Tr. 27, 518-519). Specifically, Plaintiff had intact memory, good eye

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contact, no decreased fund of knowledge, and fluent and articulate speech. (Tr. 27, 518—

519). Psychiatric examinations by Plaintiff's other doctors revealed that Plaintiff was

cooperative and had a normal mood and affect. (Tr. 27, 464, 513, 601, 619, 725, 728,

731, 734, 737, 752, 956, 1036, 1044, 1131, 1196, 1199, 1226, 1340, 1361, 1450, 1598).

The results of a November 2015 consultative psychological examination by Dr.

Janine Ippolito, Psy.D., were similar to those above. (Tr. 626~627). Specifically, although

Plaintiff had a depressed mood, dysthymic affect, and somewhat circumstantial thought

processes, he had adequate social skills, a cooperative demeanor, appropriate eye

contact, normal motor behavior, normal speech, clear sensorium, full orientation, average

cognitive functioning, good insight and judgment, only mildly impaired memory, and intact

attention and concentration. (Tr. 626-27).

Although the findings from Plaintiffs mental or psychiatric examinations supported

some limitations, they did not support disabling restrictions. See Downs v. Colvin, No.

6:15-CV-06644(MAT), 2016 WL 5348755, at*4 (W.D.N.Y. Sept. 26, 2016) (normal mental

status examinations undermined that the claimant had disabling mental limitations):

Newell v. Colvin, No. 15-CV-6262P, 2016 WL 4524809, at *14 (W.D.N.Y. Aug. 30, 2016)

(ALJ properly discredited opinion that the claimant had stress-related limitations based

upon the “largely normal” findings from the claimant's mental-status examinations),

reconsideration denied, No. 15-C\V-6262P, 2017 WL 1541239 (W.D.N.Y. Apr. 28, 2017):

see also Brown v. Berryhill, No. 6:17-CV-06584-MAT, 2018 WL 1827662, at *3 (W.D.NLY.

Apr. 16, 2018) (ALJ properly discredited an opinion that the claimant had disabling mental

limitations because it was inconsistent with the claimant's mental-status examinations,

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which consistently revealed that the claimant was well-groomed, fully oriented and

cooperative, and had good concentration, intact memory, and logical thoughts).

In addition to being inconsistent with the mosily normal findings from Plaintiff's

physical and psychiatric examinations, Dr. Matthews’s opinions were inconsistent with

Plaintiff's daily activities. (Tr. 29). As the ALJ noted, Plaintiff handled his own personal

care, prepared simple meals, performed household chores, socialized with friends and

family, shopped, attended church, went to the library, played computer games, handled

his own finances, read the Bible, and used public transportation. (Tr. 24, 271-275, 626,

632, 1569). Plaintiffs treatment records reflected that he pursued his activities of daily

living without difficulty, worked on his car, ran for a train, carried heavy objects up several

flights of stairs, set up a tent for the Taste of Buffalo, and did “lots of walking,” including

while carrying groceries. (Tr. 448, 517,592, 739, 741, 751, 1202).

Those activities supported a finding of greater abilities in sitting, walking, standing,

using his hands, interacting with others, carrying out instructions, concentrating, and

making simple decisions than reflected in Dr. Matthews’s opinions. (Tr. 610). They also

contradicted Dr. Matthews’s statement that Plaintiff had marked restrictions in activities

of daily living. (Tr. 612). See Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (the

claimant's daily activities undermined that he had disabling limitations); Brown, 2018 WL

1827662, at “4 (ALJ properly discredited opinion that the claimant had disabling mental

limitations because it was inconsistent with the claimant’s activities of daily living, which

included cooking, cleaning, doing laundry, and shopping).

Other regulatory factors further undermined the persuasiveness of Dr.

Matthews’s opinions. For example, the ALJ emphasized that Dr. Matthews’s opinions

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were conclusory. (Tr. 29). Specifically, Dr. Matthews did not cite any clinical findings or

otherwise explain how the medical evidence of record supported his opinions. (Tr. 609—

612). This type of conclusory opinion is not persuasive. See 20 C.F.R. § 416.927(c)(3)

(indicating that the degree to which a medical source presents supporting evidence and

explains the basis for his.or her opinion are factors to consider in weighing opinions).

Additionally, the ALJ emphasized that Dr. Matthews provided no specific function-

by-function assessment of Plaintiff's work-related abilities, which reduced its probative

value further. (Tr. 29). Wojtkowski v. Comm’r of Soc. Sec., No. 18-CV-0511-MJR, 2019

WL 4051687, at *6 (W.D.N.Y. Aug. 28, 2019) (ALJ properly rejected a medical opinion, in

part, because it contained no work-related limitations); Vincent F. v. Comm’r of Soc. Sec.,

No. 1:17-CV-0446 (TWD), 2018 WL 4471525, at *7 (N.D.N.Y. Sept. 18, 2018) (ALJ

properly discredited opinions from treating sources because they “provide[d] no insight

as to [the claimant's] actual limitations and were therefore of little value to the ALJ in

determining [the claimant's] RFC”).

In sum, based on the record as a whole, the Court finds that the ALJ gave good

reasons, supported by substantial evidence, for giving only little weight to Dr. Matthews’s

opinions

In his motion, Plaintiff does not cite any objective evidence that supported the

limitations contained in Dr. Matthews’s opinions. Instead, he argues that the ALJ was not

permitted to rely upon the grossly normal clinical findings of in the record to reject Dr.

Matthews’s opinions about Plaintiffs sitting and manipulative limitations because Dr.

Matthews attributed those limitations to chronic. pain, and there is “no objective

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measurement for pain.” Plaintiff cites no authority for his position, and it is contrary to the

regulations and case law.

The regulations expressly state that subjective complaints, or “statements about [the

claimant's] pain or other symptoms will not alone establish disability." See 20 C.F.R. §

416.929(a), Shelley v. Comm’r of Soc. Sec., No. 1:18-CV-697-DB, 2019 WL 4805023, at

“8 (W.D.N.Y. Oct. 1, 2019). Rather, there must be some objective evidence to support

that a claimant has disabling limitations. See 20 C.F.R. § 416.929(a). Indeed, the

regulations expressly provide that an ALJ will évaluate a claimant's symptoms—such as

pain—by considering the objective evidence of record, including whether there is

evidence of muscle spasm, reduced range of motion, sensory deficits, or motor disruption.

See 20 C.F.R. § 416.929(c)(2). Accordingly, the ALJ properly considered the generally

normal clinical findings from Plaintiff's examinations when evaluating the limitations that

Dr. Matthews attributed to Plaintiff's purported chronic pain.

Plaintiff further argues that the ALJ was not permitted to rely on “insignificant” daily

activities to reject Dr. Matthews’s opinions and contends that the ALJ did not explain how

Plaintiff's ability to perform various daily activities translated into the ability to perform a

full-time competitive job. The Court finds this argument without merit.

The ALJ did not rely upon Plaintiff's daily activities to support that he could work.

Rather, the ALJ's point was that Plaintiffs daily activities supported greater functioning

than reflected in Dr. Matthews’s opinions. (Tr. 29). Further, contrary to Plaintiffs

argument, there is evidence in the record that Plaintiff engaged in more than “insignificant”

daily activities, as discussed above.

The fact that Dr. Matthews’s opinions were inconsistent with the objective evidence

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of record and Plaintiff's daily activities provided a sufficient basis for the ALJ to discredit

those opinions. See 20 C.F.R. § 416.927(c)(4) (“Generally, the more consistent an

opinion is with the record as a whole, the more weight we will give to that opinion.’); see

also Rusin v. Berryhill, 726 F. App’x 837, 839 (2d Cir. 2018) (ALJ properly gave little

weight to a treating source’s opinion because it was inconsistent with his treatment notes,

the claimant's daily activities, and the other medical opinions of record); Legg v. Colvin,

574 F. App’x 48, 49 (2d Cir. 2014) (the ALJ gave good reasons for discrediting a treating

physician’s opinion because it was inconsistent with the objective evidence of record and

the reports of other physicians).

Citing Garcia Medina v. Commissioner of Social Security, No. 17-CV-6793-JWF,

2019 WL 1230081 (W.D.N.Y. Mar. 15, 2019), Plaintiff contends that the ALJ was not

permitted to “punish” Dr. Matthews for using Department of Social Services forms to

provide his opinions. However, Plaintiffs reliance on Garcia Medina is misplaced. In

Garcia Medina, the court held that the ALJ erred by discrediting a treating physician’s

opinion because it consisted largely of checked-off responses. Garcia Medina, 2019 WL

1230081, at *3-4 (W.D.N.Y. Mar. 15, 2019). Heré, in contrast, the ALJ did not fault Dr.

Matthews for using a check-the-box form. (Tr. 29). Rather, the ALJ properly noted that

Dr. Matthews did not provide any specific work-related limitations, despite one of the

forms asking for such information. (Tr. 29, 610). As explained above, the lack of any

actual work-related limitations limited the probative value of Dr. Matthews’s opinions. See

Wojtkowski, 2019 WL 4051687, at *6 (ALJ properly rejected a medical opinion, in part,

because it contained no work-related limitations).

Additionally, the ALJ emphasized that Dr. Matthews’s opinions were conclusory

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because Dr. Matthews cited no clinical findings and provided little to no explanation for

his opinions, despite the forms asking for such information. (Tr. 609-12). The regulations

for weighing medical opinions provide that the degree to which a medical source presents

supporting evidence and explains the basis for his or her opinion are factors to consider

in weighing opinions. See 20 C.F.R. § 416.927(c)(3); see also Shelley v. Comm’r of

Soc. Sec., 2019 WL 4805023, at *9 (acknowledging that the more a medical source

presents evidence to support a medical opinion, the more weight is given to that opinion).

Thus, the cursory manner in which Dr. Matthews completed the forms is why the ALJ

rendered his opinions of little value, not the mere fact that he used forms provided by the

Department of Social Services.

Plaintiff further argues that the ALJ should have re-contacted Dr. Matthews to

obtain additional information or specific functional assessments. The Court finds this

argument without merit. An ALJ need not re-contact a treating doctor where, as here, an

ALJ discredits the opinion because it is inconsistent with the other evidence of record. As

the Second Circuit has stated, “[t]he duty to recontact arises only if the ALJ lacks sufficient

evidence in the record to evaluate the doctor's findings, not when the treating physician’s

opinion is inconsistent with [his] own prior opinions and the rest of the record.” Morris v.

Berryhill, 721 F. App’x 25, 28 (2d Cir. 2018); see also Rusin, 726 F. App’x at 839-40 (the

ALJ was under no obligation to re-contact a treating source to resolve inconsistencies

between the doctor's opinion and treatment notations, where there were no obvious gaps

in the administrative record and the ALJ possessed the claimant's complete medical

history). Accordingly, the ALJ committed no error by not re-contacting Dr.. Matthews.

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Plaintiff also contends that the ALJ inconsistently weighed the opinions of record.

Specifically, he argues that the severity terms used for the mental limitations in Dr.

Matthews’s opinion were “identical” to those in Dr. Ippolito’s opinion, to which the ALJ

gave great weight. However, the ALJ never indicated that he discredited Dr. Matthews’s-

opinion because he used terms such as “moderate” or “very limited” when describing

Plaintiffs mental limitations. Rather, as discussed above, the ALJ found that Dr..

Matthews’s opinions were conclusory because they referenced no clinical findings and

offered little to no explanation. (Tr. 29). Moreover, Dr. Matthews’s treatment notes

contained very brief physical and mental examinations (Tr. 672, 674, 681, 684, 689, 692,

695, 697, 700-701, 704, 707, 713, 716, 722, 728, 740, 1416, 1421, 1428). In contrast,

Dr. Ippolito explained the results of a detailed mental-status examination of Plaintiff, which

provided context for her opinion. See Richardson v. Comm'r of Soc. Sec., No. 1:16-CV-

00658-MAT, 2018 WL 3633199, at *3 (W.D.N.Y. July 30, 2018) (holding that a term, such

as moderate, is not vague when a consultative examiner “conducts a thorough

examination and explains the basis for the opinion’).

Lastly, Plaintiff argues that the ALJ erred by giving more weight to Dr. ippolito’s

consultative opinion because she examined Plaintiff only once. He further contends that

the ALJ erred by giving more weight to the opinion of Dr. A. Dipeolu, a state-agency

psychoiogical consultant, because he never examined or treated Plaintiff. This argument,

however, is inconsistent with the regulations and relevant Second Circuit authority.

An ALJ is entitled to rely upon the opinions of both examining and non-examining

state-agency medical consultants because such consultants are experts in the field of

social security disability. See 20 C.F.R. § 416.913a(b)(1) (effective March 27, 2017); see

-19-

also 20 C.F.R. § 416.927(e)(2)(i) (effective August 24, 2012, to March 26, 2017): Baszio

v. Astrue, 700 F. Supp. 2d 242, 249 (N.D.N.Y. 2010); Shelfey, 2019 WL 4805023, at *9

(W.D.N.Y. Oct. 1, 2019). Further; the opinions of non-examining sources or consultative

examiners may override the opinions of treating sources if they aré better supported by

the evidence in the record. See Netter v. Astrue, 272 F. App’x 54, 55-56 (2d Cir. 2008);

see also Wilkins v. Comm’r of Soc. Sec., No. 1:18-CV-00067, 2019 WL 2500500, at *6

(W.D.N.Y. June 17, 2019).

Here, the ALJ explained why the opinions from Dr. Ippolito and Dr. Dipeolu merited

more weight than Dr. Matthews’s opinions. As discussed above, the ALJ found that Dr.

Matthews’s opinions were inconsistent with the evidence as a whole, including the

generally normal musculoskeletal, neurological, and psychiatric findings from Plaintiff's

examinations and Plaintiffs daily activities. (Tr. 29). Further, Dr. Matthews’s opinions

were conclusory and contained no specific work-related limitations. (Tr. 29).

In contrast, the ALJ found that the opinions of Dr. lppolito and Dr. Dipeolu were

consistent with the overall evidence of record, including Plaintiffs grossly normal mental

status examinations discussed above. (Tr. 28-29). Moreover, the ALJ observed that Dr.

Ippolito and Dr. Dipeolu were experts in the fields of psychiatry and in the Commissioner's

regulations for evaluating disability, respectively. (Tr. 29-29). See 20 C.F.R. §

416.927(c)(5) (stating that ALUs generally give more weight to the medical opinion of a

specialist about medical issues related to his or her area of specialty than to the medical

opinion of a source who is not a specialist). In fact, even Dr. Matthews acknowledged

that an opinion from a mental-health specialist would merit more weight than his opinion.

(Tr. 1415). Additionally, the ALJ found it significant that Dr. Ippolito supported her opinion

~20-

with a detailed mental status examination. (Tr. 29). See 20 C.F.R. § 416.927(c)(3) (the

degree. to which a medical source. supports his or her decision is a factor to consider in

weighing medical opinions). The ALJ further observed that the opinions of Dr. Ippolito

and Dr. Dipeolu were consistent with each other. (Tr. 28-29).

The above evidence provided substantial support for the ALJ’s finding that the

opinions of Dr. Ippolito and Dr. Dipeolu deserved more weight than Dr. Matthews’s

opinions. See Bushey v. Berryhill, 739 F. App’x 668 (2d Cir. 2018) (holding that the ALJ

appropriately gave more weight to the opinion evidence of a psychiatric consultant over

that of two treating sources where the consultant's opinion was more consistent with

evidence of record); see also Brown, 2018 WL 1827662, at *4 (the ALJ properly credited

the opinions of a consultative examiner and non-examining source over the claimant's

treating mental-health counselor's opinion because they were more consistent with the

record); Woodworth v. Berryhill, No. 6:17-CV-06216 (MAT), 2018 WL 1989973, at *6

(W.D.N.Y. Apr. 27, 2018) (observing that the claimant, who had the burden to show that

she was disabled, failed to prove any greater functional limitations than reflected in the

ALJ’s RFC finding).

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CONCLUSION

For the reasons stated, Plaintiff's motion for judgment on the pleadings (Dkt. No.

11) is denied, the Commissioner's motion for judgment on the pleadings (Dkt. No. 14) is

granted, and this case is dismissed.

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

SO ORDERED.

Dated: June 5, 2020

Buffalo, New York

adel oa

United States Magistrate Judge

PD