Brown v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

DANA MICHELLE BROWN,

DECISION

Plaintiff, and

v. ORDER

ANDREW M. SAUL,1 Commissioner of 18-CV-1456F

Social Security, (consent)

Defendant.

______________________________________

APPEARANCES: LAW OFFICES OF KENNETH R. HILLER, PLLC

Attorneys for Plaintiff

KENNETH R. HILLER, and

ELIZABETH ANN HAUNGS, of Counsel

6000 North Bailey Avenue

Suite 1A

Amherst, New York 14226

JAMES P. KENNEDY, JR.

UNITED STATES ATTORNEY

Attorney for Defendant

Federal Centre

138 Delaware Avenue

Buffalo, New York 14202

and

GRAHAM MORRISON

Special Assistant United States Attorney, of Counsel

Social Security Administration

Office of General Counsel

26 Federal Plaza

Room 3904

New York, New York 10278

and

1 Andrew M. Saul became the Commissioner of the Social Security Administration on June 17, 2019, and,

pursuant to Fed.R.Civ.P. 25(d), is substituted as Defendant in this case. No further action is required to

continue this suit by reason of sentence one of 42 U.S.C. § 405(g).

MARC THAYNE WARNER

Special Assistant United States Attorneys, of Counsel

Social Security Administration

Office of General Counsel

1961 Stout Street

Suite 4169

Denver, Colorado 80294

JURISDICTION

On April 7, 2020, this matter was assigned to the undersigned before whom the

parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed in

accordance with this court’s June 29, 2018 Standing Order (Dkt. 21). The matter is

presently before the court on motions for judgment on the pleadings filed by Plaintiff on

January 16, 2020 (Dkt. 18), and by Defendant on May 15, 2020 (Dkt. 24).

BACKGROUND

Plaintiff Dana Michelle Brown (“Plaintiff”), brings this action under Titles II and

XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking

judicial review of the Commissioner of Social Security’s final decision denying Plaintiff’s

applications filed with the Social Security Administration (“SSA”), on January 8, 2016,

for Social Security Disability Insurance (“SSDI”) under Title II of the Act, and for Social

Security Supplemental Income (“SSI”) under Title XVI of the Act (together, “disability

benefits”). Plaintiff alleges she became disabled on January 1, 2012, based on chronic

back pain, depression, chronic back pain from family violence, depression, morbid

obesity, and anemia. AR2 at 322, 326, 361, 364. Plaintiff’s applications initially were

denied on June 24, 2016, AR at 169-98, and at Plaintiff’s timely request, AR at 218-19,

2 References to “AR” are to the page of the Administrative Record electronically filed in nine parts by

Defendant on August 20, 2019 (Dkt. 9-1 through 9-8). On December 9, 2019, supplemental pages of the

Administrative Record were filed (Dkt. 17).

on June 22, 2018, a hearing was held via video conference with Plaintiff appearing in

Buffalo, New York before administrative law judge James Cole Cartledge (“the ALJ”),

located in Miami, Florida. AR at 67-95 (“administrative hearing”). Appearing and

testifying at the administrative hearing were Plaintiff, represented by Laura Henskee,

Esq., and vocational expert Lynn Paulson (“the VE”).

On July 20, 2018, the ALJ issued a decision denying Plaintiff’s claims, AR at 8-27

(“ALJ’s Decision”), which Plaintiff timely appealed to the Appeals Council. AR at 320-

21. On October 18, 2018, the Appeals Council denied Plaintiff’s request for review, AR

at 1-7, advising recently submitted records were determined not to show a reasonable

probability of changing the outcome of the ALJ’s Decision and thus were not added as

evidence in the file, and rendering the ALJ’s Decision the Commissioner’s final decision.

On December 13, 2018, Plaintiff commenced the instant action seeking review of the

ALJ’s Decision.

On January 16, 2020, Plaintiff moved for judgment on the pleadings (Dkt. 18)

(“Plaintiff’s Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion

for Judgment on the Pleadings (Dkt. 18-1) (“Plaintiff’s Memorandum”). On May 5, 2020,

Defendant moved for judgment on the pleadings (Dkt. 24) (“Defendant’s Motion”),

attaching Defendant’s Brief in Support of the Defendant’s Motion for Judgment on the

Pleadings and in Response to Plaintiff’s Brief Pursuant to Local Standing Order on

Social Security Cases (Dkt. 24-1) (“Defendant’s Memorandum”). Filed on June 5, 2020,

was Plaintiff’s Response to the Commissioner’s Brief in Support and in Further Support

for Plaintiff’s Motion for Judgment on the Pleadings (Dkt. 25) (“Plaintiff’s Reply”). Oral

argument was deemed unnecessary.

Based on the following, Plaintiff’s Motion is DENIED; Defendant’s Motion is

GRANTED.

FACTS3

Plaintiff Dana Michelle Brown (“Plaintiff” or “Brown”), born March 16, 1973, was

38 years old as of January 1, 2012, her alleged disability onset date (“DOD”), and 45

years old as of July 20, 2018, the date of the ALJ’s Decision. AR at 22, 322, 326, 361,

364. Plaintiff graduated high school, completed two years of college, and previously

worked as a caterer. AR at 118, 120, 365. As of the date of the administrative hearing,

Plaintiff lived in an apartment with her teenage son. AR at 73, 370.

Plaintiff describes her activities of daily living as including caring for her son,

preparing meals for herself and her son, cleaning, doing laundry, shopping, tending to

her personal care and grooming, and watching television, but her son helps with lifting

and pushing the grocery cart. AR at 85, 573. Plaintiff has a driver’s license but does

not currently drive because her car was stolen. AR at 73.

It is undisputed that Plaintiff suffers from a low back and neck impairments

attributed to a physical assault by her former fiancé. AR at 75-76. Following the

assault, Plaintiff and her son relocated to a battered women’s shelter from which she

could not leave to continue her catering business. AR at 76-77. Plaintiff maintains her

back impairments prevent her from resuming work as a caterer because she is unable

to lift heavy pots and pans. AR at 76. Plaintiff, who lived in Texas when she was

assaulted, moved several times to other southern states but when her abuser continued

to follow her, she relocated to Buffalo, New York in November 2015. AR at 79-80.

3 In the interest of judicial economy, recitation of the Facts is limited to only those necessary for

determining the pending motions for judgment on the pleadings.

Plaintiff has also been diagnosed with depression, morbid obesity (BMI of 63.83), and

anemia. AR at 364, 665. Plaintiff’s obesity was considered as a contributing factor to

several co-morbidities with which Plaintiff has been diagnosed, including borderline

hypertension, angina, lower extremity edema, hyperlipidemia, obstructive sleep apnea

syndrome, asthma, gallstones, fatty liver disease, degenerative changes of the spine

causing back pain, pain with ambulation, depression, stress urinary incontinence, and

back, leg, neck, and knee pain. AR at 655-66.

Plaintiff receives mental health treatment from Horizon Health Services. AR at

913-979. On September 20, 2017 Plaintiff underwent laparoscopic gastric bypass

surgery for weight loss performed by bariatric surgery specialist Dang Tuan Pham, M.D.

(“Dr. Pham”), at Sisters of Charity Hospital in Buffalo, New York. AR at 637-754.

On December 28, 2015, nurse practitioner Amber Richert (“NP Richert”), with

Baltimore City Department of Social Services, completed Family Investment

Administration Medical Report Form 500.4 AR at 540-41. In connection with her

disability benefits applications, on May 25, 2016, Plaintiff underwent an Internal

Medicine Examination by family practitioner Donna Miller, D.O. (“Dr. Miller”), AR at 573-

76, and a Psychiatric Evaluation by psychologist Gina Zali, Psy.D. (“Dr. Zali”). AR at

1104-07. On June 24, 2016, State agency review psychiatrist H. Tzetzo, M.D. (“Dr.

Tzetzo”), reviewed Plaintiff’s medical file and rendered an assessment of Plaintiff’s

work-related mental abilities. AR at 177-96. On April 27, 2018, licensed master social

worker (“LMSW”) Diana Buchhalter (“LMSW Buchhalter”), at Horizon Health Services

completed a Mental Residual Functional Capacity Questionnaire. AR at 998-1002. On

4 The record is not clear as to why, or for how long, Plaintiff was in Baltimore after having relocated to

Buffalo.

May 11, 2018, State agency medical consultant J. Quinlan, M.D. (“Dr. Quinlan”),

reviewed Plaintiff’s medical file and completed a Physical Residual Functional Capacity

Assessment. AR at 1005-12. On May 14, 2018, neurosurgeon Gregory Bennett, M.D.

(“Dr. Bennett”), who had previously examined Plaintiff on June 19, 2017, December 11,

2017, and March 12, 2018, completed a Physical Residual Functional Capacity

Questionnaire. AR at 1089-93.

DISCUSSION

1. Standard and Scope of Judicial Review

A claimant is “disabled” within the meaning of the Act and entitled to disability

benefits when she is unable “to engage in any substantial gainful activity by reason of

any medically determinable physical or mental impairment which . . . has lasted or can

be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§

416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s

determination that a claimant is not disabled if the factual findings are not supported by

substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),

1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In

reviewing a final decision of the SSA, a district court “is limited to determining whether

the SSA’s conclusions were supported by substantial evidence in the record and were

based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.

2012) (internal quotation marks and citation omitted). “Substantial evidence is more

than a mere scintilla. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. It is not, however, the district court’s

function to make a de novo determination as to whether the claimant is disabled; rather,

“the reviewing court is required to examine the entire record, including contradictory

evidence and evidence from which conflicting inferences can be drawn” to determine

whether the SSA’s findings are supported by substantial evidence. Id. “Congress has

instructed . . . that the factual findings of the Secretary,5 if supported by substantial

evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).

2. Disability Determination

The definition of “disabled” is the same for purposes of receiving SSDI and SSI

benefits. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable

regulations set forth a five-step analysis the Commissioner must follow in determining

eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v.

Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir.

1982). The first step is to determine whether the applicant is engaged in substantial

gainful activity during the period for which the benefits are claimed. 20 C.F.R. §§

404.1520(b) and 416.920(b). The second step is whether the applicant has a severe

impairment which significantly limits the physical or mental ability to do basic work

activities, as defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and

416.920(c). Third, if there is an impairment and the impairment, or its equivalent, is

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or

“the Listings”), and meets the duration requirement of at least 12 continuous months,

there is a presumption of inability to perform substantial gainful activity, and the claimant

is deemed disabled, regardless of age, education, or work experience. 42 U.S.C. §§

5 Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of

the Secretary of Health and Human Services in Social Security cases was transferred to the

Commissioner of Social Security, effective March 31, 1995.

423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth

step, however, if the impairment or its equivalent is not listed in Appendix 1, the

Commissioner must then consider the applicant’s “residual functional capacity” or “RFC”

which is the ability to perform physical or mental work activities on a sustained basis,

notwithstanding the limitations posed by the applicant’s collective impairments, see 20

C.F.R. §§ 404.1520(e)-(f), and 416.920(e)-(f), and the demands of any past relevant

work (“PRW”). 20 C.F.R. §§ 404.1520(e) and 416.920(e). If the applicant remains

capable of performing PRW, disability benefits will be denied, id., but if the applicant is

unable to perform PRW relevant work, the Commissioner, at the fifth step, must

consider whether, given the applicant’s age, education, and past work experience, the

applicant “retains a residual functional capacity to perform alternative substantial gainful

work which exists in the national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.

1999) (quotation marks and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c).

The burden of proof is on the applicant for the first four steps, with the Commissioner

bearing the burden of proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and

416.920(a)(4); Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). All five steps need

not be addressed because if the claimant fails to meet the criteria at either of the first

two steps, the inquiry ceases and the claimant is not eligible for disability benefits, but if

the claimant meets the criteria for the third or fourth step, the inquiry ceases with the

claimant eligible for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920.

In the instant case, the ALJ found Plaintiff met the insured status requirement for

SSDI through December 31, 2017, AR at 13, has not engaged in substantial gainful

activity since January 1, 2012, her alleged disability onset date, id., and suffers from the

severe impairments of degenerative disc disease, obesity, major depressive disorder,

hypertension, and posttraumatic stress disorder (“PTSD”), id., but that Plaintiff does not

have an impairment or combination of impairments meeting or medically equal to the

severity of any listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at

14-15. Despite her impairments, the ALJ found Plaintiff retains the RFC to perform light

work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that Plaintiff can

only occasionally lift and carry 20 lbs., frequently lift and carry 10 lbs., stand or walk for

a total of six hours in an eight-hour workday, sit for a total of six hours in an eight-hour

workday, is unlimited with regard to pushing and pulling except as shown for lifting and

carrying, can occasionally climb ramps and stairs, can never climb ladders, ropes, and

scaffolds, occasionally balance, stoop, kneel, crouch, or crawl, must avoid concentrated

exposure to hazards, is limited to Specific Vocational Preparation (“SVP”) levels of 1

and 2,6 simple, routine, and repetitive tasks requiring occasional interaction with the

public, coworkers, and supervisors, and is limited to occasional work-setting changes.

Id. at 15-20. Plaintiff is unable to perform any PRW, the demands of which exceed her

RFC, yet at the administrative hearing, the ALJ elicited testimony from the VE that

Plaintiff, based on her age, limited education, ability to communicate in English, and

RFC, and in accordance with the Medical-Vocational Guidelines, 20 C.F.R. Part 404,

Subpart P, Appendix 2 (“the Grids”), could perform other work existing in significant

numbers in the national economy including as a merchandise marker, inspector and

hand packager, and food service worker. Id. at 20-21. Based on these findings, the

ALJ determined Plaintiff is not disabled as defined under the Act. Id. at 21-22.

6 See Discussion, infra, at 14 for an explanation of SVP.

Plaintiff does not contest the ALJ’s findings with regard to the first three steps of

the five-step analysis, but argues that at the fourth step the Plaintiff’s RFC determination

was erroneously made without the benefit of evidence documenting a psychiatric

evaluation performed by psychologist Gina Zali, Psy.D. (“Dr. Zali”) (“Dr. Zali’s

evaluation”), which was never included in the administrative record such that it was not

reviewed at the administrative level, Plaintiff’s Memorandum at 12-13, the ALJ erred by

overlooking standing and walking limitations assessed by State agency medical

consultant J. Quinlan, M.D. (“Dr. Quinlan”), id. at 13-15, and the ALJ’s determination of

Plaintiff’s psychiatric component of Plaintiff’s RFC is not supported by substantial

evidence in the record. Id. at 16-20. Defendant argues the failure to include Dr. Zali’s

evaluation does not require remand because there is no reasonable probability that its

consideration would have changed the ALJ’s Decision, Defendant’s Memorandum at 7-

11, the ALJ did not overlook the standing and walking limitations imposed by Dr.

Quinlan, id. at 12-14, and the mental limitations included in the ALJ’s RFC

determination are well-supported by substantial evidence in the record. Id. at 14-16. In

reply, Plaintiff repeats her argument that the failure to include Dr. Zali’s evaluation in the

medical record requires remand, Plaintiff’s Reply at 1-3, the ALJ’s RFC determination

failed to account for the standing and walking limitations found by Dr. Quinlan, id. at 4-5,

and the ALJ’s psychiatric component of Plaintiff’s RFC is not supported by substantial

evidence in the record. Id. at 5-6.

Plaintiff’s first argument, i.e., that the failure to include Dr. Zali’s psychiatric

evaluation of Plaintiff requires remand is without merit.7 In particular, remand for

7 Defendant admits the exclusion of Dr. Zali’s evaluation from Plaintiff’s administrative record before the

ALJ and the Appeals Council is inexplicable. Defendant’s Memorandum at 8-9.

consideration of erroneously omitted evidence is not required where, even in the

absence of the error, the agency would reach the same conclusion. See Zabala v.

Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (declining to remand where the excluded

evidence was “essentially duplicative of evidence considered by the ALJ”) (citing

cases). In this case, although Plaintiff maintains the ALJ’s consideration of Dr. Zali’s

evaluation “would have bolstered the other opinions in evidence,” specifically those of

Dr. Bennett and LMSW Buchhalter, regarding Plaintiff’s ability to maintain a regular

schedule and deal with stress, a thorough review of Dr. Zali’s evaluation fails to support

this assertion. Specifically, Dr. Bennett’s evaluation pertains to Plaintiff’s physical RFC,

AR at 1089-93, and Plaintiff does not explain how Dr. Zali’s evaluation, which was

limited to Plaintiff’s mental impairments, could have “bolstered” Dr. Bennett’s findings

regarding Plaintiff’s physical impairments. Further, in completing the Mental RFC

Questionnaire, LMSW Buchhalter indicated Plaintiff is “unable to meet competitive

standards” in the areas of maintaining regular attendance and be punctual within

customary, usually strict tolerances, and completing a normal workday and workweek

without interruptions from psychologically based symptoms, and “seriously limited” in

the areas of performing at a consistent pace without an unreasonable number and

length of rest periods, responding appropriately to changes in a routine work setting,

dealing with normal work stress, carrying out detailed instructions, dealing with stress of

semiskilled and skilled work, traveling in unfamiliar places, and using public

transportation. AR at 1000-01. In contrast, Dr. Zali described Plaintiff’s restrictions

based on her mental impairments of depression and anxiety as only “mild limitations

maintaining a regular schedule and learning new tasks, and moderate limitations

performing complex tasks and appropriately dealing with stress,” AR at 1105,

concluding the limitations attributed to Plaintiff’s psychiatric impairments do “not appear

to be significant enough to interfere with the claimant’s ability to function on a daily

basis.” AR at 1107. Significantly, Plaintiff does not explain how the much less serious

mental impairments assessed by Dr. Zali would “bolster” the more severe impairments

assessed by LMSW Buchhalter. See Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)

(remanding because unconsidered physicians reports asserting the claimant was totally

disabled “were significantly more favorable to the claimant than the reports that were

considered.”). Furthermore, Lesterhuis v. Colvin, 805 F.3d 83, 88 (2d Cir. 2015)

(“Lesterhuis”), on which Plaintiff relies for the proposition that “remand is warranted

where neither the ALJ nor the Appeals Council reviewed the substance of a medical

opinion, because it leaves ‘courts, and not the SSA, in the position of making factual

and medical determinations’ on evidence,” Plaintiff’s Reply at 2, is inapposite. A plain

reading of Lesterhuis reveals the missing evidence in that case contradicted the ALJ’s

conclusion in important aspects, whereas here, the ALJ’s mental RFC determination

included the same limitations as those found by Dr. Zali. The agency’s failure to

consider Dr. Zali’s evaluation thus does not require remand.8

Nor is there any merit to Plaintiff’s argument, Plaintiff’s Memorandum at 13-15,

that remand is required because the ALJ, despite giving “great weight” to the opinion of

State agency review physician Dr. Quinlan, failed to “reconcile” Dr. Quinlan’s

8 Because the undersigned finds consideration of Dr. Zali’s evaluation would not have changed the ALJ’s

Decision, the court does not reach Defendant’s assertion, Defendant’s Memorandum at 8-9, that the

remand Plaintiff seeks is pursuant to sentence four of 42 U.S.C. § 405(g) (pertaining to evidence made

part of the record but never reviewed by the ALJ), and not sentence six (pertaining to evidence never

before the ALJ, thus requiring the ALJ render a new decision). It is further noted Plaintiff offers no

argument in reply on this point. See Plaintiff’s Reply, passim.

determination that Plaintiff can stand and walk for a total of four hours in an eight hour

day, with the ALJ’s finding Plaintiff can stand and walk for a total of six hours in an eight

hour day. AR at 15. The administrative record contains three medical opinions

regarding Plaintiff’s physical RFC including Dr. Quinlan’s opinion limiting Plaintiff to

standing and walking four hours in an eight hour workday, AR at 1005-12, Dr. Bennett’s

opinion also limiting Plaintiff to standing and walking four hours in an eight hour

workday, AR at 1089-93, and Dr. Miller’s opinion finding no limitation to Plaintiff’s ability

to stand and walk for work. AR at 573-76. The ALJ’s determination that Plaintiff retains

the RFC to stand and walk for six hours in an eight hour workday thus is supported by

Dr. Miller’s opinion. Significantly, although Dr. Miller examined Plaintiff on a

consultative basis, the report of a consultative physician may constitute substantial

evidence. Camille v. Colvin, 652 Fed.Appx. 25, 28 (2d Cir. 2016) (citing Mongeur v.

Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983)). Further, where, as here, the ALJ is

presented with conflicting opinions, the Second Circuit will “defer to the Commissioner’s

resolution of conflicting evidence.” Cage v. Commissioner of Social Security, 692 F.3d

118, 122 (2d Cir. 2012). Moreover, under such deferential standard of review

applicable to a district court’s review of an ALJ’s determination of a social security

disability claim, substantial evidence in the record may support two contrary rulings.

See McIntyre v. Colvin, 758 F.3d 146, 148 (2d Cir. 2014) (“If evidence is susceptible to

more than one rational interpretation, the Commissioner’s conclusion must be upheld.”

(citing Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982)). Accordingly, the ALJ

did not commit error in failing to reconcile Dr. Quinlan’s opinion regarding Plaintiff’s

limitations to Plaintiff’s ability to stand and walk.

Plaintiff’s argument for remand because the ALJ’s psychiatric RFC is not

supported by substantial evidence in the record, Plaintiff’s Memorandum at 16-20, is

also without merit. The ALJ determined that Plaintiff’s mental impairments limited

Plaintiff to performing jobs of SVP levels 1 and 2, simple, routine and repetitive tasks

requiring occasional interaction with the public, coworkers, and supervisors, and limited

to occasional work-setting changes. AR at 15. As relevant here, “Specific Vocational

Preparation” or “SVP” is a component of worker characteristics in the Dictionary of

Occupational Titles (“DOT”), and “is defined as the amount of lapsed time required by a

typical worker to learn the techniques, acquire the information, and develop the facility

needed for average performance in a specific job-worker situation.” DOT, app. C (4th

Ed., 1991), available at 1991 WL 688702. SVP 1 requires “short demonstration only,”

and SVP 2 requires “anything beyond short demonstration up to and including 1 month.”

Id. Significantly, pursuant to Social Security Ruling9 (“SSR”) 00-4P, the SSA primarily

relies on the DOT “for information about the requirements of work in the national

economy.” SSR 00-4o, 2000 WL 1898704, at *2. A review of the record establishes the

ALJ’s mental RFC is more restrictive than the opinion of Dr. Tzetzo, as well as Dr. Zali’s

evaluation which, as discussed above, Discussion, supra, at 11-12, was not before the

ALJ.

As relevant, Dr. Tzetzo reviewed Plaintiff’s medical evidence, which included Dr.

Zali’s evaluation, and found Plaintiff, based on affective disorders, had mild restrictions

of activities of daily living, mild difficulties in maintaining social functioning, moderate

9 Social Security Rulings are agency rulings “published under the authority of the Commissioner of Social

Security and are binding on all components of the Administration. These rulings represent precedent final

opinions and orders and statements of policy and interpretations that [the SSA] ha[s] adopted.” 20 C.F.R.

402.35(b)(1).

difficulties in maintaining concentration, persistence, or pace, and no repeated episodes

of decompensation of extended duration, concluding Plaintiff “can handle simple work

tasks.” AR AT 177-78. Dr. Zali’s evaluation showed Plaintiff with mild limitations

maintaining a regular schedule and learning new tasks, and moderate limitations in

performing complex tasks and appropriately dealing with stress, AR at 1005, but that

Plaintiff’s mental impairments were not expected to interfere with Plaintiff’s ability to

function on a daily basis. AR at 1007. These limitations are less restrictive than those

included in the ALJ’s mental RFC determination insofar as neither Dr. Tzetzo nor Dr.

Zali assessed limitations in interacting with others or work-setting changes, in contrast

to the ALJ’s findings. Significantly, state agency consultants like Dr. Tzetzo are

qualified as experts and their opinions “can constitute substantial evidence” when

consistent with the record as a whole.” Diaz v. Colvin, 2014 WL 2931583, at * 6

(W.D.N.Y. June 27, 2014).

The ALJ also reasonably explained that the opinions of LMSW Buchhalter and

NP Richert were entitled to less weight because neither is considered an acceptable

medical source as defined in the regulations. AR at 19-20. According to the ALJ,

LMSW Buchhalter’s more restrictive findings that Plaintiff would be unable to maintain

regular attendance, be punctual, and complete a normal workday are unsupported by

the consistently documented findings of Plaintiff with adequately groomed appearance,

appropriate behavior, good eye contact, appropriate affect, normal clarity of speech,

logical and goal-directed thought processes, normal perceptions, oriented in three

spheres, intact recent and remote memory, good concentration, and fair insight. AR at

19 The ALJ further considered that NP Richert’s opinion was rendered after less than

one month of treatment and is presented on a form completed with regard the Baltimore

City Department of Social Services for which, undisputed by Plaintiff, the disability

determination process differs from that for Social Security disability benefits. AR at 20

(citing AR at 914-79). As Defendant maintains, Defendant’s Memorandum at 15-16,

Plaintiff’s argument is rooted in a preference for the opinions of LMSW Buchhalter and

NP Richert than Dr. Tzetzo. The issue, however, is not whether substantial evidence

supports the claimant’s argument, but “whether substantial evidence supports the ALJ’s

decision.” Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013) (italics in

original). As discussed, Discussion, supra, at 13, substantial evidence in the record

may support two contrary rulings. McIntyre, 758 F.3d at 148.

Accordingly, Plaintiff’s challenge to the ALJ’s mental RFC finding is without merit.

CONCLUSION

Based on the foregoing, Plaintiff’s Motion (Dkt. 18) is DENIED; Defendant’s

Motion (Dkt. 24) is GRANTED. The Clerk of Court is directed to close the file.

SO ORDERED.

/s/ Leslie G. Foschio

______________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

DATED: October 13th, 2020

Buffalo, New York