George v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

____________________________________________

EARL JOSEPH GEORGE,

Plaintiff,

v. 1:19-CV-0812

(WBC)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

LACHMAN & GORTON PETER GORTON, ESQ.

Counsel for Plaintiff

1500 East Main St.

P.O. Box 89

Endicott, NY 13760

U.S. SOCIAL SECURITY ADMIN. NICOL FITZHUGH, ESQ.

OFFICE OF REG’L GEN. COUNSEL – REGION II

Counsel for Defendant

26 Federal Plaza – Room 3904

New York, NY 10278

William B. Mitchell Carter, U.S. Magistrate Judge,

MEMORANDUM-DECISION and ORDER

The parties consented, in accordance with a Standing Order, to proceed before

the undersigned. (Dkt. No. 15.) The court has jurisdiction over this matter pursuant

to 42 U.S.C. § 405(g). The matter is presently before the court on the parties’ cross-

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

Civil Procedure. For the reasons discussed below, Plaintiff's motion is denied and the

Commissioner’s motion is granted.

I. RELEVANT BACKGROUND

A. Factual Background

Plaintiff was born in 1971. (T. 266.) He completed the 12th grade. (T. 272.)

Generally, Plaintiff’s alleged disability consists of back injury, learning disability, high

blood pressure, and depression. (T. 271.) His alleged disability onset date is April 16,

2014. (T.99.) His date last insured is June 30, 2016. (Id.) His past relevant work

consists of truck driver and farm hand. (T. 272.)

B. Procedural History

On January 14, 2016, Plaintiff applied for a period of Disability Insurance Benefits

(“SSD”) under Title II, and Supplemental Security Income (“SSI”) under Title XVI, of the

Social Security Act. (T. 266.) Plaintiff’s applications were initially denied, after which he

timely requested a hearing before an Administrative Law Judge (“the ALJ”). On May 8,

2018, Plaintiff appeared before the ALJ, Robert Lynch. (T. 30-64.) On July 27, 2018,

ALJ Lynch issued a written decision finding Plaintiff not disabled under the Social

Security Act. (T. 7-29.) On April 30, 2019, the AC denied Plaintiff’s request for review,

rendering the ALJ’s decision the final decision of the Commissioner. (T. 1-6.)

Thereafter, Plaintiff timely sought judicial review in this Court.

C. The ALJ’s Decision

Generally, in his decision, the ALJ made the following five findings of fact and

conclusions of law. (T. 12-25.) First, the ALJ found Plaintiff met the insured status

requirements through June 30, 2016 and Plaintiff had not engaged in substantial gainful

activity since April 16, 2014. (T. 12.) Second, the ALJ found Plaintiff had the severe

impairments of: morbid obesity; sciatica status post herniated disc at L4-L5; sleep

apnea; insomnia; borderline intellectual functioning; and depression. (T. 13.) Third, the

ALJ found Plaintiff did not have an impairment that meets or medically equals one of the

listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (Id.) Fourth,

the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform sedentary

work as defined in 20 C.F.R. 404.1567(a) and 416.967(a); except Plaintiff:

can lift 10 pounds occasionally and 5 pounds frequently. [Plaintiff] can

stand and/or walk for a cumulative total of 2 hours during an 8-hour

workday, and can stand/walk continuously without rest for 15 minutes.

[Plaintiff] can sit for a cumulative total of 6 to 8 hours during an 8-hour

workday, and can sit continuously without rest for 45 minutes. When

performing work while ambulating, [Plaintiff] requires the use of a cane;

provided, however, [Plaintiff] can use his contralateral upper extremity to

carry and/or manipulate objects. [Plaintiff] requires the opportunity to

change positions every 45 minutes – without leaving the workstation or

being off tasks – to relieve discomfort. Such positional changes would

permit [Plaintiff] to stand briefly if performing seated work or to sit or lean

briefly if performing work standing or walking, for a period not to exceed

three minutes. [Plaintiff] can occasionally climb ramps and stairs, but can

never climb ladders and scaffolds. [Plaintiff] can occasionally stoop, kneel,

and crouch, but can never crawl. [Plaintiff] does not have limitations with

respect to the use of his upper extremities. [Plaintiff] cannot work in

environments that would result in concentrated exposure to extreme cold or

vibration. [Plaintiff] can perform work that consists of simple, routing tasks,

and only requires simple reading and math skills. In addition, [Plaintiff] must

work in an environment that is isolated from the public and requires no more

than occasional and superficial interaction with coworkers and supervisors.

(T. 15-16.) Fifth, the ALJ determined Plaintiff was unable to perform past relevant work;

however, there were jobs that existed in significant numbers in the national economy

Plaintiff could perform. (T. 22-24.)

II. THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION

A. Plaintiff’s Arguments

Plaintiff makes four separate arguments in support of his motion for judgment on

the pleadings. First, Plaintiff argues the ALJ failed to include limitations to work pace

and/or attendance in the RFC despite “undisputed opinions finding such limitations.”

(Dkt. No. 7 at 9-12.) Second, Plaintiff argues the ALJ improperly weighed the medical

opinion evidence in the record. (Id. at 12-15.) Third, Plaintiff argues the ALJ adopted

vocational expert testimony based on an incomplete hypothetical. (Id. at 19.) Fourth,

and lastly, Plaintiff argues the ALJ failed to satisfy his step five burden of demonstrating

jobs exist in significant numbers in the national economy Plaintiff can perform. (Id. at

19.)

B. Defendant’s Arguments

In response, Defendant makes two arguments. First, Defendant argues the ALJ

appropriately considered the opinion evidence in the record. (Dkt. No. 14 at 14-25.)

Second, Defendant argues the ALJ appropriately relied upon the vocational expert’s

testimony to support his step five finding Plaintiff could perform “other work” existing in

the national economy. (Id. at 25-31.)

III. RELEVANT LEGAL STANDARD

A. Standard of Review

A court reviewing a denial of disability benefits may not determine de novo

whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.

Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the

Commissioner’s determination will only be reversed if the correct legal standards were

not applied, or it was not supported by substantial evidence. See Johnson v. Bowen,

817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether

the ALJ applied correct legal principles, application of the substantial evidence standard

to uphold a finding of no disability creates an unacceptable risk that a claimant will be

deprived of the right to have her disability determination made according to the correct

legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano,

615 F.2d 23, 27 (2d Cir. 1979).

“Substantial evidence” is evidence that amounts to “more than a mere scintilla,”

and has been defined as “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.

1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational

interpretation, the Commissioner’s conclusion must be upheld. See Rutherford v.

Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

“To determine on appeal whether the ALJ’s findings are supported by substantial

evidence, a reviewing court 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.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

If supported by substantial evidence, the Commissioner’s finding must be

sustained “even where substantial evidence may support the plaintiff’s position and

despite that the court’s independent analysis of the evidence may differ from the

[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In

other words, this Court must afford the Commissioner’s determination considerable

deference, and may not substitute “its own judgment for that of the [Commissioner],

even if it might justifiably have reached a different result upon a de novo review.”

Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

B. Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine

whether an individual is disabled as defined by the Social Security Act. See 20 C.F.R.

§§ 404.1520, 416.920. The Supreme Court has recognized the validity of this

sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct.

2287 (1987). The five-step process is as follows:

(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).

IV. ANALYSIS

For ease of analysis Plaintiff’s arguments will be addressed out of order and in a

consolidated manner.

A. Medical Opinion Evidence

Plaintiff argues the ALJ failed to properly evaluate the medical opinions provided

by treating source Joseph DePra, M.D. and non-examining State agency medical

consultant D. Brown, Psy.D. (Dkt. No. 7 at 14-21.)

The opinion of a treating source will be 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.” 20 C.F.R. §

404.1527(c)(2), 416.927(c)(2). When assigning less than “controlling weight” to a

treating physician’s opinion, the ALJ must “explicitly consider” the four factors

announced in Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008). Estrella v. Berryhill, 925

F.3d 90, 95 (2d Cir. 2019) (internal quotation marks omitted). Those factors, referred to

as “the Burgess factors,” are “(1) the frequen[cy], length, nature, and extent of

treatment; (2) the amount of medical evidence supporting the opinion; (3) the

consistency of the opinion with the remaining medical evidence; and (4) whether the

physician is a specialist.” Estrella, 925 F.3d at 95-96 (citation omitted); 20 C.F.R.

404.1527(c)(2), 416.927(c)(2)1. A reviewing court should remand for failure to consider

explicitly the Burgess factors unless a searching review of the record shows that the

ALJ has provided “good reasons” for its weight assessment. Id. at 96; see Guerra v.

Saul, 778 F. App'x 75, 77 (2d Cir. 2019) (“While the ALJ here did not always explicitly

consider the Burgess factors when assigning the treating physician’ opinions less than

controlling weight, we nonetheless conclude that the ALJ provided sufficient “good

reasons” for the weight assigned.”).

On April 26, 2018, Dr. DePra completed a check box “Questionnaire.” (T. 617-

618.) Dr. DePra indicated he treated Plaintiff for sciatica, learning disability, and

obesity. (T. 617.) When asked if Plaintiff’s impairments would cause pain, Dr. DePra

checked “yes.” (Id.) When asked if Plaintiff’s impairment would cause fatigue, Dr.

DePra checked “yes.” (Id.) When asked if pain or side effects from medication would

cause diminished concentration, Dr. DePra checked “yes.” (Id.) When asked if

impairments or medication side effects would cause diminished work pace, Dr. DePra

checked “yes.” (Id.) When asked if impairments would cause the need to rest at work,

the doctor checked “yes.” (Id.) When asked how much of the workday Plaintiff would

be “off task,” Dr. DePra checked “more than 33% of the day.” (Id.) When asked if

1 Effective March 27, 2017, many of the regulations cited herein have been amended, as have

Social Security Rulings (“SSRs”). Nonetheless, because Plaintiff’s social security application was filed before the

new regulations and SSRs went into effect, the court reviews the ALJ's decision under the earlier regulations and

SSRs.

Plaintiff’s impairments would produce good days and bad days, the doctor checked

“yes.” (Id.) When asked how many days per month Plaintiff would be absent from

work, the doctor checked “more than 4 days per month.” (T. 618.)

Dr. DePra also provided physical functional limitations. The doctor indicated

Plaintiff could sit for approximately less than one hour a workday. (T. 618.) Dr. DePra

indicated Plaintiff should change positions every ten minutes. (Id.) He indicated

Plaintiff could stand/walk for less than one hour a workday. (Id.) Dr. DePra indicated

Plaintiff could lift and carry zero to five pounds occasionally and should not lift and carry

over five pounds. (Id.)

Here, the ALJ properly assessed Dr. DePra’s opinion. The ALJ afforded Dr.

DePra’s opinion “little weight.” (T. 22.) The ALJ reasoned Dr. DePra did not provide

“significant treatment or evaluation” of Plaintiff’s back impairments prior to April 2018.

(Id.) The ALJ further stated the record did not contain evidence that the doctor actually

examined Plaintiff between the time Plaintiff requested the form be completed and when

the doctor completed the form. (Id.) The ALJ further concluded the opinion was

inconsistent with a letter from Dr. DePra indicating Plaintiff could not serve on jury duty

due to depression; however, the letter did not contain any limitations on sitting,

standing, or walking. (Id.) The ALJ noted Plaintiff complained of back pain on July 6,

2016; however, treatment notations did not contain complaints of back pain again until

one occasion on January 25, 2017 and again on March 6, 2018. (Id.) Lastly, the ALJ

concluded the limitations provided in the opinion were inconsistent with the lack of

physical findings to support them. (Id.)

Plaintiff argues the ALJ’s conclusion was the product of factual and legal error

because, contrary to the ALJ’s assertion, the doctor did examine Plaintiff and the

doctor’s opinion was supported by objective evidence and treatment. (Dkt. No. 7 at 14.)

To be sure, records contain treatment notations from Dr. DePra beginning in 2015. (T.

451.) However, the ALJ concluded Dr. DePra’s opinion was undermined by lack of

treatment for his back impairment, not for lack of treatment in general. (T. 25.) Indeed,

Dr. DePra’s earliest treatment notation, from November 2015, indicated at the time of

the encounter, Plaintiff sought treatment because he went to the dentist who informed

him he had high blood pressure. (T. 451.) Plaintiff gave a history of present illness

(“HPI”) of depression and back injury. (Id.) At that time Plaintiff was assessed with

hypertension, “screening for lipid disorders,” and depression. (T. 452.) In December

2015, Plaintiff reported his depression was “much improved” and his blood pressure

was under good control. (T. 448.)

In April 2016, Dr. DePra assessed Plaintiff with insomnia, hypertension,

“screening for lipid disorder,” and depression. (T. 445.) In May 2016 and July 2016

Plaintiff was seen for acute sick visits. (T. 511, 512, 515, 517, 520, 521.) In September

2016, Plaintiff reported increased depression. (T. 510.) In November 2016, Plaintiff

reported acute memory issues and joint pain, which Dr. DePra concluded were most

likely due to sleep apnea. (T. 507.) A letter dated December 2016 indicated Plaintiff

missed appointments in March, October, and December of 2016. (T. 504.) In January

2017 Plaintiff received treatment for a wound and cold, he noted his depression was

“good.” (T. 555, 556, 560.)2 In February 2017, Plaintiff requested an excuse from jury

2 In January 25, 2017, Dr. DePra included “back pain” under assessments; however,

Plaintiff’s chief complaints were “chronic, open referral to sleep lab and would on face patient is unsure of

duty due to his depression. (T. 554, 565.) In the spring of 2017, Plaintiff received acute

and routine care, at no time did Plaintiff report back pain nor was Plaintiff assessed with

a back impairment. (T. 544, 549, 553.)

Plaintiff did not seek care between October 30, 2017 and March 6, 2018. (T.

530.) In April 2018, two years after his date last insured and four years after his alleged

onset date, Plaintiff was assessed with “back pain” and scheduled an appointment with

Dr. DePra to complete the Questionnaire. (T. 612.)

As outlined above, and by the ALJ in his decision, Dr. DePra’s treatment records

reflected gaps in treatment, only intermittent pain complaints and treatment for

symptoms unrelated to pain, and minimal to normal examination findings, including no

deficits in strength, motor, sensory, reflexes, range of motion, gait. (T. 18-19, 444-453,

504-525, 526-593); see 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (ALJ must consider

the frequency, length, nature, and extent of treatment in assessing treating source

opinion). The ALJ noted when Plaintiff was examined in connection with a sleep study

in January 2017, Plaintiff did not complain of back pain and denied leg edema, and

examination indicated steady gait and normal muscle tone. (T. 22, 581-82.) The ALJ

also noted Dr. DePra wrote a letter excusing Plaintiff from jury duty in February 2017

due to mental, not physical, impairments. (T. 22, 565.) And as the ALJ pointed out, a

review of the “Patient Summary” listing during each of Plaintiff’s encounters or

telephone communications with Dr. DePra’s office showed the first mention of back pain

the cause.” (T. 560-562.) Plaintiff’s medications for hypertension and depression were refilled, along with

an ointment for impetigo and an inhaler. (T. 561.) No plan was made to address any back pain. (Id.)

occurred in July 2016, with only two additional back pain references in January 2017

and March 2018. (T. 22, 530-31.)

The ALJ properly concluded Dr. DePra’s opinion was “inconsistent with treatment

(or lack thereof) provided.” (T. 22); see 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2)

(ALJ must consider the consistency of the treating opinion with the remaining medical

evidence). Indeed, as outlined above, although Plaintiff was assessed with back pain

on three occasions, Plaintiff did not receive treatment for his back impairment from Dr.

DePra. Plaintiff argues the ALJ impermissibly afforded Dr. DePra’s opinion less weight

due to lack of evidence. Plaintiff asserts he was receiving care for his back at another

provider, Guthrie. (Dkt. No. 7 at 15.) Plaintiff does not provide evidence of treatment at

Guthrie during the relevant time period. Indeed, the record indicates Plaintiff was not

receiving treatment at Guthrie for his back impairment while simultaneously receiving

care from Dr. DePra. Plaintiff informed Dr. DePra’s office in 2018 that his Worker’s

Compensation case was closed in 2013, he had not had pain medication in “a long

time,” and last received treatment at Guthrie “years ago.” (T. 529.) Early treatment

notations from 2015 indicated Plaintiff “had been going” to Guthrie, but was no longer

being treated there. (T. 451.) Therefore, Plaintiff’s assertion that Dr. DePra did not

treat Plaintiff’s back impairment because it was being treated elsewhere is

disingenuous.

Overall, the ALJ properly assessed Dr. DePra’s opinion and the ALJ’s

determination to afford the opinion less than controlling weight was supported by

substantial evidence in the record.

Plaintiff next argues the ALJ erred in his assessment of Dr. Brown’s opinion.

Plaintiff essentially argues the ALJ erred in affording Dr. Brown’s opinion great weight

because Dr. Brown failed to provide a narrative discussion describing how his RFC

assessment accounted for moderate limitations in functioning. (Dkt. No. 7 at 17-23.)

Plaintiff argues Dr. Brown “ignore[d] conclusions” and “fail[ed] to describe the effect” of

each impairment and merely recited some of the record evidence without connecting

that evidence to the conclusion. (Id.) Lastly, Plaintiff argues Dr. Brown’s opinion was

“invalid” because he used vague terms, such as moderate, and impermissibly offered

an opinion as to Plaintiff’s level of work without assessment of actual functions. (Id. at

19.)

In support of his argument, Plaintiff relies heavily on the Social Security

Programs Operations Manual System (“POMS”) at DI 24510.063 and 24510.065. (Dkt.

No. 7 at 17-23.) The POMS guidelines “ha[ve] no legal force, and [they] do[ ] not bind

the [Commissioner].” Schweiker v. Hansen, 450 U.S. 785, 789, 101 S.Ct. 1468, 67

L.Ed.2d 685 (1981); accord Tejada v. Apfel, 167 F.3d 770, 775 (2d Cir. 1999). For the

reasons outlined below, the ALJ properly relied on the regulations in assessing Dr.

Brown’s opinion and the ALJ’s weight determination was supported by substantial

evidence.

On May 16, 2016, Dr. Brown reviewed the medical evidence in the record at the

time and provided a mental RFC. (T. 113-115.) Dr. Brown opined Plaintiff had no

limitations in his ability to remember locations and work-like procedures. (T. 113.) He

opined Plaintiff was “not significantly limited” in his ability to: understand and remember

very short and simple instructions; sustain an ordinary routine without special

supervision; and work in coordination with or in proximity to others without being

distracted by them. (T. 114.) He opined Plaintiff was “moderately limited” in his ability

to understand and remember detailed instructions; carry out detailed instructions;

maintain attention and concentration for extended periods; perform activities within a

schedule, maintain regular attendance, and be punctual within customary tolerance; and

make simple work-related decisions. (T. 113-114.) He opined Plaintiff had no evidence

of limitation in social interactions. (T. 114.) He opined Plaintiff had no evidence of

limitation or was not significantly limited in his adaptation limitations. (T. 114-115.)

Based on Plaintiff’s activities of daily living, his pervious claim for disability benefits, an

exam dated April 5, 2016, and the consultative examiner’s examination and opinion, Dr.

Brown opined Plaintiff would be capable of “basic demands of simple, unskilled work on

a sustained basis.” (T. 115.)

The ALJ afforded Dr. Brown’s opinion “great weight.” (T. 21.) The ALJ

concluded the doctor’s opinion was based on his knowledge of Social Security

Administration regulations and policies, consistent with Plaintiff’s reported activities of

daily living, and findings showing his depression was managed with medication. (Id.)

The ALJ acknowledged Dr. Brown did not review all of the evidence in the record, which

the ALJ determined supported greater social limitations. (Id.)

Here, Dr. Brown provided sufficient narrative to support his determination and

was not impermissibly vague. At the time Dr. Brown provided his opinion the record

contained mental health evidence from consultative examiner Amanda Slowik, Psy.D.,

Plaintiff’s written testimony, and Plaintiff’s prior application. (T. 111.) Under the

heading “Mental Residual Functional Capacity Assessment,” Dr. Brown provided an

opinion as to Plaintiff’s limitation in mental functions of work. For example, Dr. Brown

opined there was “no evidence of limitation” in Plaintiff’s ability to remember locations

and work-like procedures and Plaintiff was “moderately limited” in his ability to

understand and remember detailed instructions. (T. 113.) Under the heading “MRFC –

Additional Explanation,” Dr. Brown outlined Plaintiff’s activities of daily living, evidence

from his previous application, his psychiatric history, a treatment notation dated April

2016, and Dr. Slowik’s examination and opinion. (T. 115.) Dr. Brown opined, based on

his review of the evidence, Plaintiff was capable of performing the “basic demands of

simple, unskilled work on a sustained basis.” (Id.)

Contrary to Plaintiff’s argument, Dr. Brown’s use of the term “moderate” was not

inherently vague and further Dr. Brown provided adequate narrative to support his

opinion. First, although Dr. Brown stated Plaintiff had “moderate” limitations in various

area of mental functioning, he nonetheless opined Plaintiff had no evidence of limitation

in his ability to follow and understand simple directions and instructions, perform simple

tasks independently, maintain attention and concentration for short and simple

instructions, sustain an ordinary routine, work in coordination with others, and had no

limitations in the area of social interaction. (T. 113-114.) In general, the majority of Dr.

Brown’s “moderate limitations” were in areas of complex work. (Id.) Dr. Brown’s

specific findings are consistent with his opinion Plaintiff was capable of performing

simple, unskilled work on a sustained basis. (T. 115.)

Second, a finding of moderate limitations in mental functioning does not preclude

the ability to perform unskilled work. The Second Circuit has held that moderate

limitations in work related functioning does not significantly limit, and thus prevent, a

plaintiff from performing unskilled work. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir.

2010) (“None of the clinicians who examined [plaintiff] indicated that she had anything

more than moderate limitations in her work-related functioning, and most reported less

severe limitations.”); see McIntyre, 758 F.3d at 152 (failure to incorporate limitations in a

hypothetical is harmless error if the evidence demonstrates plaintiff can engage in

simple, routine tasks or unskilled work despite limitations or the hypothetical otherwise

implicitly accounted for plaintiff’s non-exertional limitations); see Whipple v. Astrue, 479

F. App’x. 367, 370 (2d Cir. 2012) (consultative examiners' findings that plaintiff's

depression caused moderate limitations in social functioning ultimately supported the

ALJ's determination that plaintiff was capable of performing work that involved simple

tasks and allowed for a low-stress environment).

Lastly, there is significant case law within the Second Circuit finding an RFC for

simple routine work is not inherently inconsistent with limitations in the plaintiff’s ability

to deal with stress, or other specific areas of mental functioning, particularly where the

source who provided such limitations ultimately opined the plaintiff is capable of

performing simple, routine, repetitive work. See Wright v. Berryhill, 687 F. App'x 45, 48-

49 (2d Cir. 2017) (although consultative examiner opined plaintiff had mild to moderate

limitations appropriately dealing with stress, he was nonetheless able to perform simple,

routine work and therefore the court could not conclude “a reasonable factfinder would

have to conclude” that plaintiff lacked the ability to perform the ALJ’s mental RFC)

(citing Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d. Cir. 2012)); see

Coleman v. Comm'r of Soc. Sec., 335 F. Supp. 3d 389, 400 (W.D.N.Y. 2018) (ALJ’s

mental RFC limiting plaintiff to simple routine work properly accounted for opinions

plaintiff had moderate limitations in various areas of mental functioning); see Cowley v.

Berryhill, 312 F. Supp. 3d 381, 384 (W.D.N.Y. 2018) (RFC for unskilled work accounted

for moderate limitations with respect to stress); see Tatelman v. Colvin, 296 F.Supp.3d

608, 613 (W.D.N. Y. 2017) (“it is well-settled that a limitation to unskilled work ...

sufficiently accounts for limitations relating to stress and production pace”); Washburn v.

Colvin, 286 F. Supp. 3d 561, 566 (W.D.N.Y. 2017), appeal dismissed (Mar. 30, 2018)

(“It is well settled that a limitation to unskilled work sufficiently accounts for moderate

limitations in work-related functioning.”). Accordingly, Dr. Brown’s opinion that Plaintiff

could perform unskilled work, properly accounted for moderate limitations in specific

abilities in mental work functioning. As further outlined below, the ALJ’s mental RFC,

limiting Plaintiff to simple routine work with additional social limitations, properly

accounted for Dr. Brown’s opinion.

Overall, the ALJ properly assessed the medical opinion evidence in the record

and the ALJ’s determinations were supported by substantial evidence.

B. Mental RFC Determination

Plaintiff argues the ALJ’s mental RFC failed to include limitations to work pace

and/or attendance “despite undisputed opinions findings such limitations.” (Dkt. No. 7 at

11-14.) Plaintiff reiterates his argument that opinions using terms such as “moderate”

are too vague to support an RFC determination. (Id. at 12.)

The RFC is an assessment of “the most [Plaintiff] can still do despite [his]

limitations.” 20 C.F.R. §§ 404.1594(a)(1), 416.945(a)(1). The ALJ is responsible for

assessing Plaintiff’s RFC based on a review of relevant medical and non-medical

evidence, including any statement about what Plaintiff can still do, provided by any

medical sources. Id. §§ 404.1527(d), 404.1545(a)(3), 404.1546(c).416.927(d),

416.945(a)(3), 416.946(c).

As an initial matter, medical source opinions using terms like mild or moderate

are not too vague to constitute substantial evidence where the examiner conducts a

thorough examination and explains the basis for his opinion. Filer v. Comm'r of Soc.

Sec., 435 F. Supp. 3d 517, 524 (W.D.N.Y. 2020) (internal citations omitted). At outlined

above, Dr. Brown’s opinion was not impermissibly vague simple because he used the

terms like “moderate.” Further, Dr. Slowik performed a physical examination, reviewed

Plaintiff’s past medical history, noted Plaintiff’s medications, and reviewed Plaintiff’s

subjective complaints. (T. 462.) Therefore, the opinions of Drs. Brown and Slowik were

not impermissibly vague, and the opinions provided substantial evidence to support the

ALJ’s mental RFC.

Here, the ALJ’s mental RFC was proper and supported by substantial evidence.

In formulating Plaintiff’s mental RFC the ALJ relied on the medical opinion provided by

Drs. Brown and Slowik. As outlined above, Dr. Brown concluded, despite moderate

limitations, Plaintiff was capable of performing the basic demands of simple, unskilled

work on a sustained basis. (T. 115.) The ALJ afforded “great weight” to Dr. Brown’s

opinion. (T. 21.) Dr. Slowik opined Plaintiff was “mildly” limited in his ability to follow

and understand simple directions and instructions, perform simple tasks independently,

relate adequately with others, and appropriately deal with stress. (T. 462.) She further

opined Plaintiff was “markedly limited in his ability to maintain attention and

concentration and perform complex tasks.” (T. 463.) She opined Plaintiff was

“moderately to markedly limited in ability to learn new tasks,” and “moderately limited” in

his ability to maintain a regular schedule. (Id.) The ALJ afforded Dr. Slowik’s opinion

“partial weight.” (T. 21.) The ALJ determined the doctor’s opinion regarding Plaintiff’s

ability to perform simple tasks was consistent with Dr. Brown’s opinion and Plaintiff’s

activities of daily living; however, the remainder of her opinion was not consistent with

findings Plaintiff’s depression was managed by medication, his history of semiskilled

and skilled work, and evidence of greater social limitations. (Id.)

Plaintiff argues all of the medical sources opined Plaintiff had greater work

pace/attendance limitations and the ALJ “improperly substituted his own lay opinion” for

medical opinion because he did not cite to any contrary opinion. (Dkt. No. 7 at 13.)

First, the ALJ was not required to identify evidence explicitly rebutting the opinions of

medical sources before discounting or rejecting them. Smith v. Berryhill, 740 F. App'x

721, 726 (2d Cir. 2018). Second, as outlined above, the ALJ properly found aspects of

the medical source’s opinions inconsistent with other substantial evidence in the record.

Smith, 740 F. App'x at 726.

Therefore, the ALJ’s mental RFC, limiting Plaintiff to simple, routine, repetitive

work with additional social limitations, was supported by the opinions of Drs. Brown and

Slowik.

C. Plaintiff’s Remaining Arguments

Plaintiff argues the testimony from the vocational expert (“VE”) did not support

the ALJ’s conclusion that jobs exist in significant numbers in the national economy

within Plaintiff’s RFC. (Dkt. No. 7 at 21.) This argument fails. Plaintiff criticizes the

ALJ’s reliance on an RFC that did not incorporate greater functional limitations

regarding attendance and ability to remain on task. But these opinions were

discounted, and their conclusions rejected. See Smith, 740 F. App’x at 726-727. The

Commissioner’s burden at step five is to show the existence of possible employment for

an individual with the RFC determined by the ALJ in the fourth step of the sequential

analysis. See 20 C.F.R. §§ 404.1546(c), 416.946(c). It was therefore proper for the VE

to respond to hypotheticals premised on the ALJ’s RFC.

Plaintiff also argues that the ALJ erred in relying on the VE’s testimony because

the job numbers the VE identified were, according to Plaintiff, based on the

Occupational Employment Survey (OES), and “OES data cannot constitute substantial

evidence in support of the Step 5 burden.” (Dkt. No. 7 at 21-22) (citing cases

considering vocational expert testimony based on OES data). However, Plaintiff’s

argument misconstrues the VE’s testimony and does not establish error in this case.

During the May 2018 administrative hearing, the following exchange between

Plaintiff’s counsel and the VE occurred:

Q [by Plaintiff’s counsel]: Okay, thank you. Now what was the source of your

job numbers?

A [by the VE]: U.S. Department of Labor.

Q [by Plaintiff’s counsel]: Okay. Now I’m aware that they publish statistics

on a quarterly basis and they use the Occupational Employment Survey, is

that what you’re referring to?

A [by the VE]: It’s National Occupational Employment and Wage Estimates.

Q [by Plaintiff’s counsel]: Right. And they publish it quarterly, right?

A [by the VE]: Yes.

Q [by Plaintiff’s counsel]: Yeah, yeah. That stuff is correlated to the

Occupational Employment Survey, you’re aware of that, correct?

A [by the VE]: I believe that’s right.

Q [by Plaintiff’s counsel]: All right, good. Are you aware of any sedentary

jobs that have - in the GED section where they have ones across the board?

A [by the VE]: No.

ATTY: Okay, thanks. Bear with me a sec to see if I have further questions.

I don’t believe I do, so thank you, Mr. England.

VE: You’re welcome.

ATTY: I don’t have further questions, Your Honor.

(T. 61.)

In response to the attorney’s question, the VE testified that the source of his job

numbers was the “U.S. Department of Labor,” and as the administrative hearing

transcript shows, it was only when asked by Plaintiff’s counsel whether that information

“correlated” with the OES did the vocational expert indicate that he “believe[d] that’s

right.” (T. 61.) Plaintiff’s statement that the VE testified he was basing his job numbers

data on the OES is inaccurate. Plaintiff’s attorney did not object to the VE’s testimony,

nor further cross-examine the VE as to the source of his job numbers. (T. 55, 61.)

Here, and as permitted by the Second Circuit, the ALJ appropriately relied upon

the VE’s testimony to support the step five finding, and Plaintiff’s argument to the

contrary does not identify a basis for remand. See McIntyre, 758 F.3d at 152

(recognizing that “[a]s we have previously held, a vocational expert is not required to

identify with specificity the figures or sources supporting his conclusion, at least where

he identified the sources generally,” citing Brault, 683 F.3d at 450, and further

concluding that “the vocational expert was not required to articulate a more specific

basis for his opinion, and the ALJ reasonably credited this testimony, which was given

on the basis of the expert's professional experience and clinical judgment, and which

was not undermined by any evidence in the record.”); Brault, 683 F.3d at 450 (citing its

prior holding in Galiotti v. Astrue, 266 F. App’x. 66 (2d Cir. 2006) in which the Court

affirmed despite the fact that “the VE, while not providing the specific information the

claimant wanted, ‘identified the sources he generally consulted to determine such

figures,” and in which “[w]e also noted the marked absence of any ‘applicable regulation

or decision of this Court requiring a vocational expert to identify with greater specificity

the source of his figures or to provide supporting documentation.””)).

Therefore, the ALJ properly assessed the medical opinion evidence in the record

and his RFC determination was supported by substantial evidence. The ALJ properly

relied on the VE testimony provided at the hearing in making his step five determination

that a significant number of jobs exist in the national economy Plaintiff could perform.

ACCORDINGLY, it is

ORDERED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 7) is

DENIED: and it is further

ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 14.)

is GRANTED: and it is further

ORDERED that Defendant’s unfavorable determination is AFFIRMED; and it is

further

ORDERED that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED.

Dated: October 6, 2020 EL Cs Me

William B. Mitchell Carter

U.S. Magistrate Judge

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