Bauza v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

KATHRINE M. BAUZA,

Plaintiff,

v. DECISION & ORDER

COMMISSIONER OF SOCIAL 18-CV-1434-MJP

SECURITY,

Defendant.

INTRODUCTION

Pedersen, M.J. Kathrine M. Bauza (“Plaintiff”) brings this action pursuant to

Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review

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

her application for Disability Insurance Benefits (“DIB”) and Supplemental Security

Income Benefits (“SSI”). Pursuant to 28 U.S.C. § 636(c), the parties have consented

to the disposition of this case by a United States magistrate judge. (ECF No. 23.)

BACKGROUND

On February 13, 2014, Plaintiff protectively filed a Title II application for a

period of disability and DIB, alleging disability beginning June 7, 2013. (R.1 16, 187.)

Plaintiff also filed a Title XVI application for supplemental security income on

February 13, 2014, alleging disability beginning on May 1, 2009. (R. 19, 189.)

Plaintiff’s claims were initially denied on July 17, 2014. (R. 16, 116–21.) Plaintiff

1 Referring to the full and accurate transcript of the entire record of

proceedings relating to this case. (Record, Aug. 19, 2019, ECF No. 9 and

Supplemental Record, Dec. 20, 2019, ECF No. 19).

timely requested a hearing on August 27, 2014. (R. 16, 125.) Plaintiff appeared and

testified at a hearing held on June 26, 2017, before an Administrative Law Judge

(“A.L.J.”) and was represented by an attorney (R. 36.) A vocational expert also

testified at the hearing. (Id.) On October 2, 2017, the A.L.J. issued an unfavorable

decision. (R. 13–30.) Plaintiff timely filed a request for review by the Appeals Council

on December 4, 2017. (R. 180–86.) The Appeals Council denied the request for review

on October 15, 2018, thereby making the A.L.J.’s decision the final decision of the

Commissioner. (R. 1–6.) Plaintiff timely filed this civil action in District Court,

seeking judicial review of the A.L.J.’s decision. (Compl., Dec. 7, 2018, ECF No. 1.)

STANDARD OF REVIEW

Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims

based on the denial of Social Security benefits. Section 405(g) provides that the

district court “shall have the power 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). It directs that when considering a claim, the

Court must accept the findings of fact made by the Commissioner, provided that such

findings are supported by substantial evidence in the record. Substantial evidence is

defined as “‘more than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’” Richardson v.

Perales, 402 U.S. 389 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,

229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997).

To determine whether substantial evidence supports the Commissioner’s

findings, the Court must “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)). Section 405(g) limits the scope of the Court’s review to two

inquiries: whether the Commissioner’s findings were supported by substantial

evidence in the record, and whether the Commissioner’s conclusions are based upon

an erroneous legal standard. Green-Younger v. Barnhart, 335 F.3d 99, 105–6 (2d Cir.

2003); see also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try a

benefits case de novo.)

A person is disabled for the purposes of SSI and disability benefits if he or she

is unable “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) & 1382c(a)(3)(A.) In assessing whether a

claimant is disabled, the A.L.J. must employ a fivestep sequential analysis. See Berry

v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam.) The five steps are:

(1) whether the claimant is currently engaged in substantial gainful

activity;

(2) if not, whether the claimant has any “severe impairment” that

“significantly limits [the claimant’s] physical or mental ability to do

basic work activities”;

(3) if so, whether any of the claimant’s severe impairments meets or

equals one of the impairments listed in Appendix 1 of Subpart P of Part

404 of the relevant regulations;

(4) if not, whether despite the claimant’s severe impairments, the

claimant retains the residual functional capacity [(“RFC”)] to perform

his past work; and

(5) if not, whether the claimant retains the [RFC] to perform any

other work that exists in significant numbers in the national economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d

at 467. “The claimant bears the burden of proving his or her case at steps one through

four[;] . . . [a]t step five the burden shifts to the Commissioner to ‘show there is other

gainful work in the national economy [which] the claimant could perform.’” Butts v.

Barnhart, 388 F.3d 377, 383 (2d Cir. 2004) (quoting Balsamo v. Chater, 142 F.3d 75,

80 (2d Cir. 1998).)

ANALYSIS

The A.L.J.’s Decision

In his decision, the A.L.J. followed the required five-step analysis for

evaluating disability claims. (R. 17.) The A.L.J. found that Plaintiff meets the insured

status requirements of the Social Security Act through March 31, 2014 (R. 19.) Under

step one of the process, the A.L.J. found that Plaintiff had not engaged in substantial

gainful activity since May 1, 2009, the onset date. (R. 19.) At step two, the A.L.J.

concluded that Plaintiff had the following severe impairments: bipolar disorder,

major depressive disorder, and unspecified personality disorder with borderline

traits. (R. 19.) At step three, the A.L.J. determined that Plaintiff does not have an

impairment or combination of impairments that meets or medically equals one of the

listed impairments. (R. 20.) At step four, the A.L.J concluded that Plaintiff has the

Residual Functional Capacity (“RFC”) to perform a full range of work at all exertional

levels, but with various non-exertional limitations as follows:

[Plaintiff] could frequently understand, remember and carry out

complex instructions. She can handle low stress defined as including no

supervisory duties and she is subject to only occasional independent

decision-making, with no strict production quotas. The claimant further

is limited to occasional changes in work routine and processes,

occasional interaction with supervisors and no or only incidental

interaction with coworkers and the public. She could perform no team

or tandem working or co-working.

(R. 21.) The A.L.J. also found that Plaintiff was unable to perform past relevant work.

(R. 28.) The A.L.J. proceeded to step five and found that jobs existed in the national

and regional economy that Plaintiff could perform. (R. 29.) Therefore, the A.L.J. found

that Plaintiff was not disabled. (R. 29.)

Plaintiff’s Assessment of Errors

Plaintiff contends that the A.L.J. erred in three respects. First, Plaintiff claims

that the A.L.J. failed to properly weigh the opinion of treating clinician, Ann M.

McLaughlin, Licensed Clinical Social Worker (“LCSW”). (Pl.’s Mem. of Law at 1, Jan.

21, 2020, ECF No. 20-1.) Second, Plaintiff asserts that the A.L.J. improperly excluded

evidence under the five-day rule and that the A.L.J. should have included the

evidence under the A.L.J.’s affirmative duty to develop the record. (Id. at 1 & 20.)

Third, Plaintiff claims that the A.L.J. improperly relied on the July 22, 2017, opinion

of one-time consultative examiner Susan Santarpia, Ph.D. to support his residual

functional capacity assessment. (Id. at 1.)

The A.L.J. properly weighed the April 7, 2015 opinion of Ann M.

McLaughlin, LCSW.

Plaintiff contends that the A.L.J. erred in assigning little weight to

McLaughlin’s April 7, 2015, employability assessment of Plaintiff. (Id. at 16.) In the

opinion, McLaughlin found that Plaintiff was very limited in her ability to

understand and remember information, carry out instructions, interact appropriately

with others, maintain socially appropriate behavior, and maintain consistent pace.

(R. 524.) Additionally, McLaughlin’s assessment found that Plaintiff was moderately

limited in her ability to maintain concentration, make simple decisions, and maintain

appropriate hygiene and grooming. (Id.) The A.L.J. assigned little weight to this

opinion due to his finding that it was inconsistent with Plaintiff’s reported activity

level at the time, specifically because Plaintiff was preparing for and traveled to

Disney World with her family around the time of McLaughlin’s assessment. (R. 26.)

This opinion also contrasted with an employability assessment conducted by

McLaughlin on April 29, 2014, in which she found Plaintiff to be only moderately

limited in her ability to carry out instructions, maintain attention and concentration,

interact with others, maintain socially appropriate behavior, and function at a

consistent pace. (R. 392.) Additionally, in the April 29, 2014, assessment McLaughlin

found that Plaintiff had no limitations in her ability to understand and remember

instructions, make simple decisions, and maintain hygiene and grooming. (Id.) The

A.L.J. assigned significant weight to this opinion considering McLaughlin’s

familiarity with Plaintiff and the assessment’s consistency with the overall record.

(R. 25.)

The A.L.J. did not err in assigning McLaughlin’s April 2015 assessment little

weight. A licensed clinical social worker is not considered to be an acceptable medical

source and, therefore, McLaughlin’s opinion is not given controlling weight. Martino

v. Comm'r of Soc. Sec., 339 F. Supp. 3d 118, 128 (W.D.N.Y. 2018) ( licensed clinical

social workers are not an “acceptable medical source”; accordingly, their opinions are

not entitled to controlling weight.); Conlin v. Colvin, 111 F. Supp. 3d 376, 386

(W.D.N.Y. 2015) (citing Piatt v. Colvin, 80 F. Supp. 3d 480, 493 (W.D.N.Y. 2015)).

However, an A.L.J. “should consider information from ‘other sources,’ such as social

workers, which ‘may also help ... to understand how [the claimant’s] impairment

affects [her] ability to work.’” Krach v. Colvin, No. 13-CV-1089 (GTS/CFH), 2014 WL

5290368, at *14 (N.D.N.Y. Oct. 15, 2014) (quoting 20 C.F.R. § 404.1513(e))

(alterations in original). The Commissioner is “free to decide that the opinions of

‘other sources’ ... are entitled to no weight or little weight,” but “those decisions should

be explained.” Piatt, 80 F. Supp. 3d at 493 (citation omitted). “The amount of weight

to give such opinions is based in part on the examining and treatment relationship,

length and frequency of the examinations, the extent of relevant evidence given to

support the opinion, and consistency with the record as a whole.” Williams v. Colvin,

No. 15-CV-6119-FPG, 2016 WL 1466562 at *4, (W.D.N.Y. Apr. 14, 2016). An A.L.J. is

not free to disregard a medical opinion solely on the basis that the opinion is from a

nonmedical source. Kelly v. Astrue, No. 09-CV-1359, 2011 WL 817507 at *5–6,

(N.D.N.Y. Jan. 18, 2011) (reported and recommendation adopted, 2011 WL 807398

(N.D.N.Y. Mar. 2, 2011)) (A.L.J. was not free to simply disregard a licensed clinical

social worker’s assessment on the basis that he was not an acceptable medical source

alone).

Plaintiff argues that the A.L.J. incorrectly assigned little weight to

McLaughlin’s April 2015 opinion based upon a “mischaracterization of the record.”

(Pl.’s Mem. of Law at 18, Jan. 21, 2020, ECF No. 20-1.) Plaintiff disagrees with the

A.L.J.’s reasoning for assigning less weight to the April 2015 assessment, which was

based upon the A.L.J.’s finding that the assessment was inconsistent with evidence

in the record, and specifically that Plaintiff traveled to Disney World in early May

2015. (Id.) Plaintiff asserts that this was a mischaracterization of the record because

evidence in the record indicates that Plaintiff had an extremely difficult time with

the trip and was unable to deal with the stress involved with it. Id. Plaintiff argues

that treatment notes from around the time of the trip demonstrate Plaintiff’s

difficulty in dealing with the trip. (Pl.’s Mem. of Law at 18.) However, there is a

significant amount of evidence in the record that indicates that the A.L.J. was

justified in his reasoning.

On April 30, 2015, Vivian Gerard, N.P., (“Gerard”), of the Chautauqua County

Department of Mental Hygiene (“Chautauqua County Mental Health”) noted that

Plaintiff stated that “[e]verything’s falling apart” in regard to her impending

departure for Disney World. (R. 408.) However, the same treatment note indicates

that the cause of Plaintiff’s stress resulted primarily from the fact that Plaintiff’s

mother, aunt, and cousin were also going on the trip and Plaintiff did not get along

with them. (Id.) In other words, the records demonstrate that the stress Plaintiff was

allegedly experiencing was due to interpersonal relationship issues and not the trip

itself. In addition, just one month prior, on March 20, 2019, Plaintiff reported that

she was “looking forward” to the trip. (R. 412.)

Furthermore, although Gerard did increase Plaintiff’s prescription of

gabapentin from 300 milligrams three times daily to 400 milligrams three times

daily, Gerard indicated that Plaintiff was to only take the increased dosage as needed

and noted that Plaintiff usually only took it as needed. (R. 409.)2 Moreover, at

Plaintiff’s appointment with Gerard after the trip on June 29, 2015, Plaintiff reported

that she had only been taking one gabapentin a day at bedtime and Gerard then

actually lowered Plaintiff’s prescription to only one gabapentin per day as needed. (R.

405–06.)

Additionally, Plaintiff points to her testimony at the hearing as evidence that

she was unable to handle the mental stress of the trip. (Pl.’s Mem. of Law at 19.)

While Plaintiff did testify that the trip was a “disaster” and she spent a lot of her time

crying in her hotel room or fighting with her mother, she also testified that she flew

on a plane there and back, stayed at the resort for four days and three nights, and

went into multiple parks. (R. 82–83.) This level of activity on the trip to Disney World

appears to drastically contradict the severe limitations indicated by McLaughlin in

her April 2015 assessment.

Moreover, there are other aspects of McLaughlin’s April 2015 assessment that

are inconsistent with evidence on the record. For example, McLaughlin’s finding that

2 This medical record was electronically signed by McLaughlin. (R. 410.)

Plaintiff was moderately limited in her ability to maintain appropriate hygiene and

grooming is inconsistent. (R. 524.) Indeed, none of Plaintiff’s treatment notes in the

record from Chautauqua County Mental Health, including around the time in which

McLaughlin conducted her assessment, indicated that Plaintiff was at all limited in

her ability to maintain appropriate grooming and hygiene. (R. 402–434.) In fact, all

the bi-monthly visits, from February 14, 2014 to June 29, 2015, indicated that

Plaintiff was either “neat and clean” or had fair hygiene. (R. 405–34.) This supports

the A.L.J.’s conclusion that McLaughlin’s April 2015 assessment was inconsistent

with other evidence in the record.

Furthermore, McLaughlin’s April 2015 assessment was also inconsistent with

acceptable medical opinions in the record, specifically the opinions of J. Straussner,

Ph.D., Janine Ippolito, Ph.D., and Susan Santarpia, Ph.D., In Dr. Straussner’s

Disability Determination Explantion conducted on July 17, 2014, he found that

Plaintiff only had moderate limitations in maintaining social functioning and

maintaining concentration, persistence or pace, and only mild limitations in daily

living activities. (R. 108.) Additionally, in an examination conducted on July 8, 2014,

consultative examiner Dr. Ippolito found that Plaintiff could understand and follow

simple directions and instructions, perform simple tasks independently, maintain

attention and concentration, maintain a schedule, learn new tasks, perform complex

tasks and make appropriate decisions without limitations. (R. 320.) Furthermore, Dr.

Ippolito found that Plaintiff only had moderate to marked limitations in relating

adequately with others and appropriately dealing with stress. (R. 320.)

Additionally, Dr. Santarpia conducted a psychiatric evaluation on July 22,

2017, during which she found that Plaintiff was able to understand, remember, and

apply simple and complex directions and instructions, make work-related decisions,

sustain concentration, perform tasks at a consistent pace, sustain an ordinary routine

and regular attendance at work, maintain personal hygiene and appropriate attire,

be aware of normal hazards and take appropriate precautions within normal limits.

(R. 528). Furthermore, Dr. Santarpia found that Plaintiff only had mild to moderate

impairment in her ability to interact with others including supervisors, co-workers

and the public, regulate emotions, control behavior, and maintain her well-being. (R.

528.) The forgoing demonstrates that the extreme limitations found in McLaughlin’s

April 2015 opinion are not consistent with the opinions of the acceptable medical

sources who examined Plaintiff.

Finally, contrary to Plaintiff’s assertions otherwise, the A.L.J. did consider the

length of treatment and familiarity that McLaughlin had with Plaintiff when

determining how much weight to assign her assessments. (Pl.’s Mem. of Law at 19.)

When considering the April 29, 2014, employability assessment completed by

McLaughlin, the A.L.J. decided to assign the assessment significant weight because

McLaughlin was a “treating source” who was familiar with Plaintiff. (R. 25.)

Therefore, it cannot be said that the A.L.J. never considered McLaughlin’s

relationship with Plaintiff when assessing what weight to give her opinions.

In conclusion, McLaughlin’s April 2015 employability assessment is

inconsistent with evidence in the record. Therefore, the A.L.J. did not err in assigning

this opinion little weight.

The A.L.J. Properly Excluded Evidence Under the Five-Day Rule and

Satisfied His Duty to Develop the Record.

The A.L.J. did not err in excluding evidence that Plaintiff attempted to submit

at the hearing due to the fact that Plaintiff did not comply with the “five-day rule.”

At the hearing held on June 26, 2017, Plaintiff’s counsel notified the A.L.J. of

additional medical evidence not included in the record and attempted to submit such

evidence, out of compliance with the five-day rule. (R. 38–41.) This evidence included

medical records from Chautauqua County Mental Health, where Plaintiff received

treatment for the mental health conditions that are identified as her main disabling

impairments. (R. 19, 43.) Under the Social Security Administration’s (SSA)

regulations 20 C.F.R. § 404.935(a) and § 416.1435(a), a plaintiff or counsel must

submit written evidence or inform the SSA about such evidence at least five business

days prior to a scheduled hearing unless an exception applies. 20 C.F.R. §§ 404.935(a),

416.1435(a). The exceptions to this requirement include:

(1) Our action misled you;

(2) You had a physical, mental, educational, or linguistic limitation(s) that

prevented you from informing us about or submitting the evidence

earlier;

(3) Some other unusual, unexpected, or unavoidable circumstance beyond

your control prevented you from informing us about or submitting the

evidence earlier. Examples include, but are not limited to: (i) You were

seriously ill, and your illness prevented you from contacting us in

person, in writing, or through a friend, relative, or other person;

(ii) There was a death or serious illness in your immediate family;

(iii) Important records were destroyed or damaged by fire or other

accidental cause; or (iv) You actively and diligently sought evidence from

a source and the evidence was not received or was received less than 5

business days prior to the hearing.

20 C.F.R. §§ 404.935(b), 416.1435(b). In this case, at the June 26, 2017, hearing, the

A.L.J. asked Plaintiff’s counsel which exception applied to justify Plaintiff’s belated

attempt to submit evidence. (R. 39–41.) Plaintiff’s counsel stated that the cause for

the late submission was “office error” as the medical records at issue were misfiled by

a temporary assistant and were therefore not submitted with the rest of the medical

records, despite the fact that Plaintiff’s counsel received them well in advance of the

hearing. (R. 39–40.) Additionally, Plaintiff never informed the A.L.J. of these records

until the date of the hearing. (R. 39.)

Plaintiff asserts that such office error qualified as an “unusual, unexpected, or

unavoidable circumstance.” (Pl.’s Mem. of Law at 21.) This proffered excuse of “office

error” clearly does not fit into one of the enumerated examples of unusual,

unexpected, or unavoidable circumstances, those being serious illness, death or

serious illness of a family member, accidental destruction of the evidence, or having

not received the evidence until after the deadline. 20 C.F.R. §§ 404.935(b)(3),

416.1435(b)(3). Furthermore, “a mistake by a representative is not an unusual,

unexpected, or unavoidable circumstance as contemplated by the regulation.” Shari

Lee Z. v. Saul, No. 5:19-CV-0268 (GTS), 2019 WL 6840134, at *6 (N.D.N.Y. Dec. 16,

2019). Here Plaintiff’s counsel could have simply reviewed the record to determine

that some of the records were missing. Id. Therefore, Plaintiff’s excuse of “office error”

would not qualify as an exception to the five-day rule and the A.L.J.’s refusal to

consider the records was not erroneous.

Additionally, the A.L.J. did not err in rejecting the belatedly submitted

evidence despite the A.L.J.’s duty to develop the record. Given the non-adversarial

nature of disability benefits proceedings, an A.L.J. has an affirmative obligation to

develop the administrative record. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).

However, pursuant to 20 C.F.R. § 416.1435(a) an A.L.J. can decline to obtain or

consider evidence that was not submitted in compliance with the five-day rule unless

an exception to the rule applies. As discussed above, none of the enumerated

exceptions to the rule applies.

Further, even if the record might be incomplete without the late submitted

records, remand is not required despite the A.L.J.’s general duty to develop the

record. The fact that the record might be incomplete without the late-submitted

records from Chautauqua County Mental Health does not require remand because,

although there is a general duty on the A.L.J. to ensure a complete record before

rendering a decision, the Social Security Administration specifically balanced that

duty with the goal of the five-day rule, providing that “[t]o say that the ALJ was

required to admit and consider this evidence despite the fact that it was not submitted

in compliance with the five-day rule would make that rule an empty vessel that need

not be complied with.” Shari Lee Z., 2019 WL 6840134, at *6 (quoting Arthur L. v.

Berryhill, 18-CV-0304, 2019 WL 4395421, at *3–4 (N.D.N.Y. June 6, 2019) (report

and recommendation adopted, 2019 WL 3213229 (N.D.N.Y. July 17, 2019)) (rejecting

the same argument).

Finally, the evidence in the record (excluding the relevant Chautauqua County

Mental Health records) provides sufficient evidence from which the A.L.J. could

assess Plaintiff’s mental functioning. This evidence includes treatment notes from

Chautauqua County Mental Health from February 14, 2014, through August 25,

2015; employability assessments from McLaughlin; a July 15, 2014, assessment from

Dr. Straussner, a state-agency psychologist; a July 2014 assessment from

consultative examining psychologist Dr. Ippolito; and a July 22, 2017, assessment

from consultative examining psychologist Dr. Santarpia. (R. 25–27, 399.) Therefore,

the record is not so insufficient that the A.L.J. could not render a decision even

without considering the missing medical records. Shari Lee Z., 2019 WL 6840134, at

*6. Due to the lack of a sufficient excuse for failing to timely submit the missing

records, the A.L.J. was within his discretion to refuse to consider the late evidence.

The Weight Assigned by the A.L.J. to the Opinion of Susan Santarpia, PH.D.

was Proper.

The A.L.J. was justified in assigning significant weight to the July 22, 2017,

opinion of consultative examiner Susan Santarpia, Ph.D. Plaintiff contends that the

A.L.J. erred in assigning greater weight to the opinion of Dr. Santarpia, a

consultative examiner, than to McLaughlin’s April 2015 assessment because

McLaughlin was a treating source and Dr. Santarpia was not. (Pl.’s Mem. of Law at

24.) As discussed above, the A.L.J. gave little weight to McLaughlin’s April 2015

assessment due to its inconsistency with the record. The A.L.J. explained that Dr.

Santarpia’s July 22, 2017, opinion “warrants significant weight since she is familiar

with Social Security’s rules and regulations regarding mental impairments and

disability, but probably warrants slightly lesser weight than the assessments of Dr.

Ippolito and Dr. Straussner.” (R. 27.)

Generally, an A.L.J. should not rely heavily on one-time consultative

examiners, especially in the context of mental illness, as a single look at an

individual’s condition is not indicative of his or her overall mental health. Estrella v.

Berryhill, 925 F.3d 90, 98 (2d Cir. 2019). However, “[a]n ALJ may give greater weight

to a consultative examiner’s opinion than a treating physician’s opinion if the

consultative examiner’s conclusions are more consistent with the underlying medical

evidence.” Suarez v. Colvin, 102 F. Supp. 3d 552, 577 (S.D.N.Y. 2015); Rosier v.

Colvin, No. 586 Fed. App’x 756, 758 (2d Cir. Oct. 9, 2014) (A.L.J. properly relied on

evaluations by a consultative examiner to reject treating physician’s opinion where

other substantial evidence in the record was inconsistent with treating physician’s

opinion); Leisten v. Colvin, No. 12-CV-6698-FPG, 2014 WL 4275710, at *13–14

(W.D.N.Y. Aug. 28, 2014) ( finding it was not error for the A.L.J. to assign little weight

to a treating doctor’s opinion regarding Plaintiff’s mental health when it was

inconsistent or unsupported by the record and instead assigning substantial weight

to the opinions of the consultative examiners whose opinions were supported by the

record).

As discussed above, the A.L.J. did not err in assigning the April 2015 opinion

of McLaughlin little weight on the grounds that it was inconsistent with the record.

Therefore, the A.L.J. may have been justified in giving greater weight to Dr.

Santarpia’s opinion even if McLaughlin was a treating physician. See Estrella, 925

F.3d at 98. Further, the A.L.J. did not err because McLaughlin, as a licensed clinical

social worker, is not considered to be an acceptable medical source. Therefore, the

A.L.J. did not err in assigning greater weight to Dr. Santarpia’s opinion than that

assigned to McLaughlin’s April 30, 2015 assessment.

Finally, Plaintiff argues that Dr. Santarpia’s finding that Plaintiff has mild to

moderate impairment in her ability to interact with others is contradicted by

Plaintiff’s work history. (Pl.’s Mem. of Lawat 10.) Specifically, Plaintiff points to an

incident where she was removed from her previous job in June 2013 after she waved

a fake pistol at a co-worker’s girlfriend. (R. 54–55.) However, this singular incident is

not enough to determine that the whole of Dr. Santarpia’s opinion is inconsistent,

especially considering that incident happened over four years prior to Dr. Santarpia’s

examination and there is ample evidence in the record since that time that is

consistent with Dr. Santarpia’s opinion.

CONCLUSION

After a careful review of the entire record, the Court finds that the

Commissioner’s denial of DIB and SSI was based on substantial evidence and was

not erroneous as a matter of law. Accordingly, the A.L.J.’s decision is affirmed. For

the reasons stated above, the Court grants the Commissioner’s cross-motion for

judgment on the pleadings (ECF No. 24) and denies Plaintiff’s motion for judgment

on the pleadings (ECF No. 20). The Court directs the Clerk to enter judgment in favor

of the Commissioner and close this case.

IT IS SO ORDERED.

DATED: August 4, 2020

Rochester, New York

MARK W. PEDERSEN

United States Magistrate Judge

18