# McCoullum v. Commissioner of Social Security

> District Court, W.D. New York · September 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10362790

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- noting that when “the evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony presented 16 to him . . . .”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________

LEONA C. MCCOULLUM,

Plaintiff, DECISION AND ORDER
-vs-
1:19-CV-0539 (CJS)
COMMISSIONER OF SOCIAL SECURITY,

Defendant.
________________________________________

INTRODUCTION
Plaintiff Leona C. McCoullum (“Plaintiff”) brings this action pursuant to 42
U.S.C. § 405(g) to review the final determination of the Commissioner of Social
Security (“Commissioner”) denying Plaintiff’s applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). Both parties have moved
for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Pl.’s
Mot., Nov. 13, 2019, ECF No. 10; Def.’s Mot., Jan. 9, 2020, ECF No. 13. For the
reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No.
10) is denied, the Commissioner’s motion (ECF No. 13) is granted, and the Clerk of
Court is directed to close this case.
BACKGROUND
The Court assumes the reader’s familiarity with the underlying facts and
procedural history in this case. However, the Court provides a brief recitation of the
relevant facts as they pertain to Plaintiff’s arguments before this Court.

1
Plaintiff began treatment with the Monsignor Carr Institute, Catholic
Charities of Buffalo (“MCI”) in August 2015. Transcript (“Tr.”) 875, Jul. 22, 2019,
ECF No. 6. In September 2015, Plaintiff’s licensed mental health counselor at MCI
at the time, Vondalyn Lane, wrote a letter stating that Plaintiff had been diagnosed
with adjustment disorder, mixed with depression and anxiety; that Plaintiff would

see a psychiatrist at MCI for medication; and that in MCI’s professional opinion
Plaintiff was unable to work or attend a training program at that time. Tr. 875. Ms.
Lane did not provide a specific functional assessment with her letter.
In a “Mental Status Exam” dated October 15, 2015, Dr. Loida Reyes – the MCI
psychiatrist referenced in Lane’s letter – indicated that Plaintiff did not report
delusions, was not a danger to self or others, was within normal limits of cognition,
and was of average intelligence, though mildly impaired in her ability to make

reasonable decisions and with difficulty acknowledging the presence of psychiatric
problems. Tr. 747. Dr. Reyes’ notes indicate the follow-up plan for Plaintiff’s
treatment would include therapy and counseling, as well as medication. Tr. 767.
On January 27, 2016, Dr. Susan Santarpia, Ph.D., performed a consultative
examination on Plaintiff at the request of the Commissioner. Tr. 631. Dr. Santarpia
noted the following findings on her mental status examination: Plaintiff’s thought

processes were coherent and goal directed; mood was euthymic; Plaintiff was oriented
to person, place, and time; attention was mildly impaired due to nervousness or
possible lack of effort; recent and remote memory skills were intact; cognitive

2
functioning was estimated to be in the average to low-average range of ability; insight
and judgment were poor. Tr. 633. Based on these findings, Dr. Santarpia diagnosed
Plaintiff with adjustment disorder with mixed anxiety and depressed mood, and
made the following medical source statement: “She presents as able to follow and
understand simple directions and instructions, perform simple tasks independently,

maintain attention and concentration, maintain a regular schedule, learn new tasks,
relate adequately with others, and appropriately deal with stress within normal
limits.” Tr. 633. Dr. Santarpia also indicated that Plaintiff demonstrated a mild
impairment in performing complex tasks independently and making appropriate
decisions. Tr. 633.
On May 31, 2016, an MCI psychiatrist1 completed a “Medical Examination for
Employability Assessment, Disability Screening, and Alcoholism/Drug Addiction

Determination” on Plaintiff. Tr. 880. That assessment indicated that Plaintiff
suffered from panic disorder, agoraphobia, and post-traumatic stress disorder
(“PTSD”), all of which were expected to last for more than 12 months. Tr. 880. The
psychiatrist did not complete the section of the form that specifically assessed
Plaintiff’s mental functioning in such areas as “understands and remembers
instructions,” “makes simple decisions,” and “appears able to function in a work

setting at a consistent pace.” Tr. 881. Instead, the psychiatrist identified the following
limitation on work activities: “patient cannot work [illegible] people due to anxiety.”

1 The signature on the form is illegible, but the signing party represents that he or she is a Board-
certified psychiatrist. Tr. 881. Presumably, the psychiatrist was Dr. Reyes.

3
Tr. 881.
Dr. Reyes completed another, almost identical, assessment on July 28, 2016.
Tr. 885. As in the May 31, 2016 assessment, Dr. Reyes did not complete an evaluation
of Plaintiff’s specific mental functioning, but simply noted that Plaintiff “can’t
[illegible] around people due to severe anxiety.” Tr. 885.

In addition to the assessments mentioned above, Plaintiff met on several
occasions with Dr. Reyes for fifteen-minute-long “medication management” sessions,
most of which included a “mini-mental status” exam. On August 25, 2016, Dr. Reyes
indicated that Plaintiff’s mood was notable in that she was “less anxious”; no other
significant change was indicated. Dr. Reyes again saw Plaintiff on November 1, 2016,
and noted that her mood was anxious and that she was having sleep problems. At
Plaintiff’s November 29, 2016 session, Dr. Reyes indicated that Plaintiff was

“depressed and lonely” during the holiday season. Tr. 776.
On January 24, 2017, Plaintiff indicated to Dr. Reyes that she had been to the
emergency room for anxiety, that she had been depressed, and that she had exhibited
obsessive compulsive cleaning behaviors. Tr. 772. At her session on February 21,
2017, Dr. Reyes noted that Plaintiff stated “she has been stressed out and not feeling
well physically,” and the “mood” category of mini-mental status exam was notable in

that Plaintiff was “very anxious and depressed,” but no other significant changes
were reported or observed. Tr. 770. Plaintiff was again anxious on March 16, 2017,
though no other significant changes were observed. Tr. 768

4
On August 31, 2017, Nurse Practitioner Diana Page (“NP Page”), also at MCI,
completed a third “Medical Examination for Employability Assessment, Disability
Screening, and Alcoholism/Drug Addiction Determination” on Plaintiff. Tr. 884. NP
Page indicated that Plaintiff had an unspecified bipolar disorder, and panic disorder
with agoraphobia. She also completed a checklist of mental functional limitations, in

which she indicated that Plaintiff: showed no evidence of limitations maintaining
basic standards of hygiene; was moderately limited in understanding and carrying
out instructions, making simple decisions, and interacting appropriately with others;
and was very limited in maintaining concentration, maintaining socially appropriate
behavior, and appearing able to function in a work setting at a consistent pace. Tr.
891. NP Page concluded that these limitations precluded Plaintiff from working in
competitive employment, and that Plaintiff should be reassessed in six months. Tr.

891.
On September 25, 2017, mental health therapist Giseline Michel completed a
“Mental Status Exam Form” on Plaintiff at a different MCI facility to begin treatment
of Plaintiff’s cannabis dependence. Tr. 846. Michel found that Plaintiff’s appearance,
stature, activity, perception, and thought content were all within normal limits. Tr.
845. Michel observed that Plaintiff’s thought process was logical; attitude was

cooperative; speech was clear; cognition, insight and judgment were within normal
limits; and her intelligence was estimated as average. Tr. 845–846.
In October 2017, licensed mental health counselor Janelle Pysz completed a

5
“Comprehensive Assessment” of Plaintiff. Tr. 827. Ms. Pysz indicated that Plaintiff
suffered from panic disorder with agoraphobia, and generalized anxiety. Tr. 827. In
the functional domain, Ms. Pysz indicated that Plaintiff did not have clinically
indicated needs in the following functional domains: maintain financial benefits,
money management, individual care skills, transportation, time management,

anger/aggression, antisocial behaviors, impulsivity, communication skills,
dependency issues, social/interpersonal skills, coping/symptom management skills,
cognitive problems, compulsive behavior, mood instability, obsession,
thought/perceptual disorders, high risk behaviors, and safety/self-preservation skills.
Tr. 820–825. According to Ms. Pysz’s assessment, Plaintiff’s only “current need areas”
were substance use/addiction and anxiety. Tr. 823. This assessment was consistent
with a previous “Comprehensive Assessment” that does not appear to be included in

full in the record.2 See Tr. 733–739. As a result of this assessment, Ms. Pysz worked
with Plaintiff to develop an “initial individualized action plan” with the goals of “stop
using marijuana for sleep,” and “learn how to manage anxiety.” Tr. 847–848.
On March 1, 2018, Ms. Pysz completed a “Mental Residual Functional Capacity
Questionnaire” at the request of Plaintiff’s attorney. Tr. 869. Ms. Pysz stated that
Plaintiff struggled with moderate to severe anxiety, and gave Plaintiff the prognosis

of “fail.” Tr. 869. Of the twenty-five “mental abilities and aptitudes” listed on the

2 There is no date on the “Adult Comprehensive Assessment v2” that appears in the transcript from
pages 733 to 738, and the signature page is missing. However, it can be inferred that the record was
prior to Prysz’s assessment because Plaintiff’s age is listed as 55 on Prysz’s assessment, and 54 on the
undated assessment.

6
checklist on that form, Ms. Pysz rated Plaintiff as “unable to meet competitive
standards” on each and every one. Tr. 871–872. As an explanation, Ms. Pysz wrote
only that Plaintiff’s “anxiety/panic [a]ffects her ability to function in work setting.”
Tr. 872. Ms. Pysz indicated that Plaintiff was capable of managing benefits in her
own best interests, that she could not assess whether Plaintiff was a malingerer, and

that Plaintiff could not, in her opinion, engage in full-time competitive employment
on a sustained basis. Tr. 873.
PROCEDURAL HISTORY
Plaintiff filed her DIB application on November 30, 2015, alleging an onset
date of January 1, 2012. Tr. 343. Plaintiff also filed an application for SSI benefits on
November 30, 2015. Tr. 350. In her disability report, Plaintiff reported several
conditions as limiting her ability to work: adjustment disorder, depression, anxiety,

high blood pressure, diabetes, high cholesterol, asthma, and previous vulva cancer.
Tr. 380. On February 10, 2016, the Commissioner notified Plaintiff that she did not
qualify for either DIB or SSI benefits. Tr. 284. Thereafter, Plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”). Tr. 294.
Plaintiff’s request was approved and the hearing was held on March 20, 2018
in Buffalo, New York. Tr. 218. Plaintiff appeared with her attorney, Nicholas

DiVirgilio. Tr. 218. Vocational expert Joey Kilpatrick testified by telephone. Tr. 251–
259. Attorney DiVirgilio argued that Plaintiff was unable to work due to the following
severe impairments: anxiety, agoraphobia, and depression. Tr. 219. He conceded that

7
Plaintiff was not alleging any exertional impairments. Tr. 236.
In her decision on July 16, 2018, the ALJ found that Plaintiff was not disabled,
and denied both DIB and SSI benefits. Tr. 211. On February 28, 2019, the Social
Security Administration’s Appeals Council denied Plaintiff’s request for further
review of the ALJ’s decision. Tr. 1. The ALJ’s decision thus became the “final decision”

of the Commissioner subject to judicial review under 42 U.S.C. § 405(g).
LEGAL STANDARDS
The law defines “disability” as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). In order to qualify for DIB benefits, the DIB claimant must satisfy the

requirements for a special insured status. 42 U.S.C. § 423(c)(1). In addition, the Social
Security Administration has outlined a “five-step, sequential evaluation process” to
determine whether a DIB or SSI claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a “residual functional capacity” assessment,
whether the claimant can perform any of his or her past relevant work
despite the impairment; and (5) whether there are significant numbers
of jobs in the national economy that the claimant can perform given the
claimant's residual functional capacity, age, education, and work
experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537

8
F.3d 117, 120 (2d Cir. 2008); 20 C.F.R. § 404.1520(a)(4)(i)–(v), § 416.920(a)(4)(i)–(v)).
When a mental impairment is alleged, the regulations require the ALJ to apply
a “special technique” at the second and third steps of the five-step evaluation process.
Petrie v. Astrue, 412 Fed. Appx. 401, 408 (2d Cir. 2011) (citing 20 C.F.R. §404.1520a).
First, the ALJ must evaluate the claimant’s pertinent symptoms, signs, and

laboratory findings to determine whether he or she has a medically determinable
mental impairment. 20 C.F.R. § 404.1520a(b)(1). If the claimant does have such an
impairment, the ALJ must rate the claimant’s functional limitations in four broad
functional areas: understand, remember, or apply information; interact with others;
concentrate, persist, or maintain pace; and adapt or manage oneself. 20 C.F.R.
§ 404.1520a(c)(3). The ALJ must rate the degree of limitation in each of these areas
using a five-point scale: none, mild, moderate, marked, or extreme. 20 C.F.R.

§ 404.1520a(c)(4). After rating the degree of functional limitation resulting from the
claimant’s impairment(s), the ALJ must then determine the severity of the mental
impairment(s). 20 C.F.R. § 404.1520a(d).
The claimant bears the burden of proof for the first four steps of the sequential
evaluation. 42 U.S.C. § 423(d)(5)(A); Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999).
At step five, the burden shifts to the Commissioner only to demonstrate that there is

other work in the national economy that the claimant can perform. Poupore v. Asture,
566 F.3d 303, 306 (2d Cir. 2009).
42 U.S.C. § 405(g) defines the process and scope of judicial review of the final

9
decision of the Commissioner on whether a claimant has a “disability” that would
entitle him or her to DIB and SSI benefits. See also 42 U.S.C. § 1383(c)(3). A reviewing
court must first determine “whether the Commissioner applied the correct legal
standard.” Jackson v. Barnhart, No. 06-CV-0213, 2008 WL 1848624, at *6 (W.D.N.Y.
Apr. 23, 2008) (quoting Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)). “Failure to

apply the correct legal standards is grounds for reversal.” Id. (quoting Townley v.
Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). However, provided the correct legal
standards are applied, a finding by the Commissioner is “conclusive” if it is supported
by “substantial evidence.” 42 U.S.C. § 405(g). In other words, “[w]here the
Commissioner's decision rests on adequate findings supported by evidence having
rational probative force, [the Court] will not substitute our judgment for that of the
Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).

DISCUSSION
In this case, the ALJ found that the Claimant met the special insured status
requirements of the Social Security Act through December 31, 2020. Tr. 200. At step
one of the five-step evaluation process, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since January 1, 2012, the alleged disability onset date.
Tr. 200. At step two, the ALJ determined that Plaintiff had the following severe

mental impairments: an adjustment disorder with mixed anxiety and depression;
anxiety; agoraphobia; a panic disorder with agoraphobia; and post-traumatic stress
disorder (“PTSD”). Tr. 201. The ALJ also noted that although Plaintiff had several

10
non-severe physical impairments, those non-severe impairments did not create any
additional functional or exertional limitations. Tr. 201.
At step three of the process, the ALJ determined that Plaintiff’s mental
impairments, considered either individually or in combination, did not meet or
medically equal the criteria of Mental Disorder listings 12.04 (depressive, bipolar and

related disorders), 12.06 (anxiety and obsessive-compulsive disorders), and 12.15
(trauma- and stressor-related disorders) in 20 C.F.R. Part 404, Subpart P, App’x 1.
Tr. 201. In assessing the severity of Plaintiff’s mental impairments, the ALJ found
Plaintiff has a mild limitation in understanding, remembering, or applying
information; a moderate limitation in interacting with others; a moderate limitation
with regard to concentrating, persisting, or maintaining pace; and a moderate
limitation for adapting or managing oneself. Tr. 201–203. The ALJ noted that these

findings satisfied neither the “Paragraph B” or “Paragraph C” criteria for Mental
Disorders.3 Tr. 203.
Then, before proceeding to step four, the ALJ made a determination of
Plaintiff’s residual functional capacity. “Residual functional capacity” (“RFC”) means
the most that the claimant can still do in a work setting despite the limitations caused

3 Under Section 12.00 of 20 C.F.R. Pt. 404, Subpt. P, App. 1, an individual must typically meet the
requirements of both paragraphs A and B of a particular listing, or the requirements of both
paragraphs A and C. The “Paragraph A” requirements are specific medical criteria of the particular
mental disorder. The “Paragraph B” requirements are functional criteria: understand, remember, or
apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage
oneself. The “Paragraph C” requirements are the criteria used to evaluate “serious and persistent
mental disorders,” which involve a medically documented history of the existence of the disorder over
a period of at least 2 years.

11
by the claimant’s impairments. 20 C.F.R. § 404.1545, § 416.945. After careful
consideration of the entire record, the ALJ determined that Plaintiff had the RFC to
perform a full range of work at all exertional levels, but that Plaintiff:
[W]ould be off task approximately 20 minutes in 8-hour workday due to
panic attacks. The claimant can only perform simple, routine work and
make simple workplace decisions not at a production rate . . . pace. She
can maintain attention and concentration for 2 hour blocks of time. The
claimant can tolerate minimal changes in work place processes and
settings. She can tolerate occasional interaction with supervisors, but
can interact with the public and coworkers for 10 percent or less in a
workday and cannot perform tandem or team work.

Tr. 203.
Based on this RFC, and on the testimony of the vocational expert, the ALJ
found that Plaintiff was capable of performing her past relevant work as a
Commercial Cleaner. Tr. 209. In the alternative, the ALJ noted that even though
Plaintiff’s age made her “an individual closely approaching advanced age,” there are
nevertheless other jobs that exist in significant numbers in the national economy that
Plaintiff can perform. See 20 C.F.R. § 404.1563, § 416.963. Relying on the vocational
expert’s testimony, the ALJ found that a person of Plaintiff’s age and RFC could
perform such unskilled jobs in the national economy as hospital cleaner, laundry
worker, or a hand packager. Tr. 211. Hence, the ALJ found Plaintiff was not disabled
for the purposes of DIB or SSI. Tr. 211.
In seeking reversal of the Commissioner’s decision, Plaintiff makes two
arguments. First, Plaintiff argues that the ALJ provided insufficient reasons for
discounting the opinions of Plaintiff’s treating sources. Pl. Mem. of Law, 8–14, Nov.

12
13, 2019, ECF No. 10-1. Second, Plaintiff argues that the ALJ’s RFC determination
was not supported by substantial evidence. Pl. Mem. of Law, 14–17. The
Commissioner disputes Plaintiff’s contentions and maintains that the ALJ’s decision
is free of legal error and supported by substantial evidence.
The “Treating Physician Rule”

In this case, Plaintiff points out that:
three mental health providers submitted functional assessments
regarding Plaintiff’s mental impairments. Treating psychiatrist Dr.
Reyes opined on May 30, 2016 and July 28, 2016 that Plaintiff was
unable to work around others due to severe anxiety. Treating
psychiatrist [sic] nurse practitioner NPP Page . . . opined Plaintiff was
very limited in her ability to maintain attention/concentration,
moderately-to-very limited in her ability to maintain socially
appropriate behavior without exhibiting behavior extremes and . . . to
function in a work setting at a consistent pace, and moderately limited
in her ability to understand and remember instructions, carry out
instructions, make simple decisions, and interact appropriately with
others. Treating counselor Ms. Psyz completed a medical source
statement and opined Plaintiff was unable to meet competitive
standards for all mental demands for work and would likely miss more
than four days of work per month due to her impairments or treatment.

Pl. Mem. of Law at 9–10 (citations to the record omitted). Plaintiff notes that the ALJ
afforded only “some weight” to each of these opinions, and argues that the ALJ’s
reasoning for discrediting these opinions is unsupported. Pl. Mem. of Law at 10.
“[I]t is well settled that the ALJ is not permitted to substitute her own
expertise or view of the medical proof for the treating physician's opinion or for any
competent medical opinion.” Burgess v. Astrue, 537 F.3d 117, 131 (2d Cir. 2008).
Hence, for claims filed before March 27, 2017, 20 C.F.R. § 404.1527 requires that the

13
“treating physician rule” be applied when determining a claimant’s disability status.
§ 404.1527(c)(1) provides that, generally speaking, the medical opinion of a source
who has examined the claimant is entitled to greater weight than a source who has
not. Further, 20 C.F.R. § 404.1527(c)(2) states:
Generally, we give more weight to opinions from your treating sources,
since these sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of your medical impairment(s)
and may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source's medical opinion on
the issue(s) of the nature and severity of your impairment(s) is well-
supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence
in your case record, we will give it controlling weight.4

Nonetheless, the Second Circuit has cautioned that “[a] treating physician's
statement that the claimant is disabled cannot itself be determinative.” Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999).
Dr. Reyes, M.D.
Noting that Dr. Reyes was both a treating medical source and a specialist, the
ALJ gave “some weight” to Dr. Reyes’ opinion that Plaintiff could not work around
people due to severe anxiety. Tr. 207. In that regard, the ALJ explained that Dr.
Reyes did not answer the functional limitation questions on the July 2016
assessment, and that Plaintiff’s testimony as to her activities of daily living – grocery
shopping with her daughter, going to church with her mother, and taking the metro-

4 For claims filed after March 27, 2017, the rules in § 404.1520c apply to the evaluation of opinion
evidence.

14
rail to the hearing – was inconsistent with Dr. Reyes’ assessment of Plaintiff’s
impairments around people. Tr. 207. Plaintiff argues that the ALJ mischaracterized
the claimant’s testimony about her activities of daily living, and in any event that the
ALJ’s reliance on that testimony to discount Dr. Reyes’ opinion was improper. Pl.
Mem. of Law at 11. The Court disagrees.

The regulations require that a treating source’s medical opinion be controlling
only 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 . . . .” 20 C.F.R. § 404.1527(c)(2). Where the treating source’s medical opinion
does not meet these criteria, the ALJ is required to give “good reasons” for the weight
assigned to the opinion. Id. The ALJ must determine the weight of the opinion by
analyzing the so-called Burgess factors: length of the treatment relationship,

frequency of examination, nature and extent of the treatment relationship,
supportability of the opinion by relevant evidence, consistency with the record as a
whole, the source’s level of specialization, and other relevant factors. See Burgess, 537
F.3d at 131 (citing 20 C.F.R. § 404.1527(c)).
An ALJ's failure to explicitly apply the Burgess factors when assigning weight
to a treating physician’s opinion is a procedural error. Estrella v. Berryhill, 925 F.3d

90, 96 (2d Cir. 2019) (citing Selian v. Astrue, 708 F.3d 409, 419–20 (2d Cir. 2013)).
Nevertheless, if “a searching review of the record” assures the reviewing court that
the procedural error was harmless, and “that the substance of the treating physician

15
rule was not traversed,” then the reviewing court will affirm the ALJ’s decision.
Estrella, 925 F.3d at 96 (citing Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)).
The Court finds that the ALJ in this case committed procedural error because
she did not expressly consider all of the Burgess factors with respect to Dr. Reyes’
opinion. In her discussion of Dr. Reyes’ opinion, the ALJ did identify that Dr. Reyes

was a specialist, and noted that Dr. Reyes’ opinion was not supported by relevant
evidence because she did not provide a specific functional assessment, and her
opinion was inconsistent with Plaintiff’s testimony. Tr. 207. However, the ALJ did
not expressly address the length of the treatment relationship, frequency of
examination, or nature and extent of the treatment relationship.
Nevertheless, the Court’s searching review of the record reveals that the
substance of the treating physician rule was not traversed. To begin with, prior to

specifically addressing Dr. Reyes’ opinion, the ALJ’s decision thoroughly recounted
Plaintiff’s medical history, including abundant references to the relevant treating
sources in the record. See, Tr. 201–203 (conducting the “special technique” for
assessing medical impairments); Tr. 205–207 (discussing the medical history in
chronological order). Moreover, Dr. Reyes’ treatment notes themselves indicate less
than a dozen sessions, typically of approximately fifteen minutes, concerned with

medication management. See Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)
(noting that when “the evidence of record permits us to glean the rationale of an ALJ's
decision, we do not require that he have mentioned every item of testimony presented

16
to him . . . .”).
Although Plaintiff cites a decision from another court in this district to support
her argument that the ALJ’s treatment of Dr. Reyes’ opinion was improper, the Court
finds that case readily distinguishable. In Woodling v. Comm’r of Soc. Sec., 2018 WL
4468824, at *6 (W.D.N.Y. Sept. 18, 2018), the reviewing court found an ALJ’s decision

in error where he gave “little weight” to a treating physician’s opinion, and that
treating physician was a specialist who had completed multiple medical source
statements over a period spanning many months, with very specific functional
findings in each statement, identifying a number of different limitations. Woodling,
2018 WL 4468824 at *3–6. Here, Dr. Reyes failed to complete the specific mental
functional assessment portion of her statements, and rendered a general opinion
based only on the limitation imposed by Plaintiff’s anxiety around people. Moreover,

the ALJ did not discount Dr. Reyes’ opinion entirely, but only declined to give it
controlling weight.
Nurse Practitioner Page & Licensed Mental Health Counselor Pysz
The ALJ also declined to give controlling weight to the opinions of nurse
practitioner Page and licensed mental health counselor Pysz. Tr. 207–208. NP Page
had assessed Plaintiff as moderately to very limited in a number of specific functional

areas, but the ALJ gave her opinion “some weight” because NP Page is not an
acceptable medical source, and the medical evidence, Plaintiff’s testimony, and
Plaintiff’s daily activities did not support the severe limitations NP Page identified.

17
Tr. 208. Ms. Pysz had identified a multitude of severe limitations, too, but the ALJ
gave Ms. Pysz’s assessment only “some weight” because Ms. Pysz is also not an
acceptable medical source, and her assessment was not consistent with the medical
evidence as a whole or with Plaintiff’s activities of daily living. Plaintiff argues that
such did not constitute sufficient reasons for discounting the opinions of NP Page and

Ms. Pysz. Pl. Mem. of Law at 13.
As the ALJ rightly indicated, neither NP Page nor Ms. Pysz are “acceptable
medical sources” under the regulations, whose opinions would be entitled to
controlling weight. Monette v. Colvin, 654 F. App'x 516, 518 (2d Cir. 2016) (citing 20
C.F.R. § 404.1513(a), (d)(1)). “While the opinions of nurse practitioners may be
considered as to the severity of plaintiff's impairment and how it affects his ability to
work, such opinions do not warrant the same deference as those of treating

physicians.” Lovell v. Colvin, 137 F. Supp.3d 347, 353 (W.D.N.Y. 2015). Similarly, as
a licensed mental health counselor, Ms. Pysz, is not an acceptable source under the
regulations. Feliciano o/b/o D.F. v. Comm'r of Soc. Sec., No. 1:18-CV-00502 EAW,
2020 WL 1815754, at *3 (W.D.N.Y. Apr. 10, 2020). Nevertheless, an ALJ “generally
should explain the weight given to opinions from these sources or otherwise ensure
that the discussion of the evidence in the determination or decision allows a claimant

or subsequent reviewer to follow the [ALJ]'s reasoning, when such opinions may have
an effect on the outcome of the case.” 20 C.F.R. § 404.1527(f)(2); Canales v. Comm'r
of Soc. Sec., 698 F. Supp.2d 335, 344 (E.D.N.Y. 2010).

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Here, the ALJ assigned the opinions of NP Page and Ms. Pysz “some weight,”
which was the same degree of weight the ALJ assigned to the medical opinions of Dr.
Reyes, the treating psychiatrist, and Dr. Santarpia, the consultative examiner.
Further, the ALJ provided an explanation – that the sources were not acceptable
medical sources, and that their opinions were not consistent with the medical record

as a whole – for her decision not to assign controlling weight to each of these decisions.
A review of the record indicates ample justification for the ALJ’s conclusion that the
opinions were not consistent with the record. As an obvious example, the Court notes
that the opinions of NP Page and Ms. Pysz are inconsistent with the findings of Dr.
Santarpia, and that even Ms. Pysz’s two medical source statements are not entirely
consistent with each other, with the statement provided at the request of Plaintiff’s
attorney in 2018 markedly more severe than that provided in October 2017.

Accordingly, the Court finds the ALJ did not traverse the treating physician
rule in her weighting of Dr. Reyes’ opinion, and did not commit error in her weighting
of the opinions of NP Page and Ms. Pysz.
Substantial Evidence
Plaintiff also argues that the ALJ’s mental RFC determination was not
supported by substantial evidence. Pl. Mem. of Law at 14. Specifically, Plaintiff notes

that the ALJ assigned “some weight” to all of the medical opinions in the record, and
failed to reconcile the conflicts between each of these medical opinions and the RFC.
Pl. Mem. of Law at 15.

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As indicated above, provided the correct legal standards are applied, a finding
by the Commissioner is “conclusive” if it is supported by “substantial evidence.” 42
U.S.C. § 405(g). “[W]hatever the meaning of ‘substantial’ in other contexts, the
threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S. Ct.
1148, 1154 (2019). 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, 401 (1971) (quoting
Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
To determine whether a finding, inference or conclusion is supported by
substantial evidence, “[t]he Court carefully considers the whole record, examining
evidence from both sides ‘because an analysis of the substantiality of the evidence
must also include that which detracts from its weight.’” Tejada, 167 F.3d at 774

(quoting Quinones v. Chater, 117 F.3d 29, 33 (2d Cir. 1997)). The reviewing court will
defer to the Commissioner where his finding is supported by substantial evidence, as
it is not the reviewing court’s function to determine de novo whether a plaintiff is
disabled. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012).
Where the record contains sufficient evidence from which an ALJ can assess
the claimant's residual functional capacity, the ALJ need not select a single right

opinion and make an RFC finding based solely on that opinion. See Monroe v. Comm'r
of Soc. Sec., 676 F. App'x 5, 8 (2d Cir. 2017). Rather, in making a determination of a
claimant’s RFC, the ALJ must “weigh all of the evidence available to make an RFC

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finding that [is] consistent with the record as a whole.” Matta v. Astrue, 508 F. App'x
53, 56 (2d Cir. 2013).
Here, although the ALJ ultimately assigned only “some weight” to the opinions
of Dr. Reyes, Dr. Santarpia, NP Page and Ms. Pysz, her decision demonstrates that
she carefully considered both the opinions and treatment notes of each source. For

instance, not only did the ALJ consider Dr. Reyes’ medical source statement
indicating that Plaintiff could not work around people (Tr. 207), she also considered
the “mini-mental status examinations” in Dr. Reyes’ treatment notes, many of which
were “unremarkable” (Tr. 206). In addition, the ALJ considered NP Page’s
assessments in May and August 2017 that suggest Plaintiff had moderately limited
to very limited abilities in several domains of mental functioning (Tr. 207), but noted
that treatment notes from her primary care physician from the same period include

mini-mental status examinations that are within normal limits (Tr. 206–207).
Further, while noting the severe limitations assessed by Ms. Pysz in 2018 (Tr. 208),
the ALJ pointed out that a mental status examination by Ms. Pysz in late 2017
“revealed an anxious mood, but the remainder of the examination was unremarkable”
(Tr. 207). Because the ALJ reached her RFC determination based on a comprehensive
review of both sides of the evidence in the record, the Court finds that the ALJ’s

determination was adequately supported by substantial evidence.
CONCLUSION
In sum, the Court finds that the ALJ’s decision applied the appropriate legal

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standards, and rests on adequate findings supported by evidence having rational
probative force. Accordingly, it is hereby ORDERED that Plaintiff’s motion for
judgment on the pleadings (ECF No. 10) is denied, and the Commissioner’s motion
(ECF No. 13) is granted. The Clerk of Court is directed to close this case.

DATED: September 14, 2020
Rochester, New York

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10362790. Public record. Not legal advice.