Sirris v. Commissioner of Social Security

Ky FILED SN

AUG 31 2020 } |

UNITED STATES DISTRICT COURT ja □□ □□

WESTERN DISTRICT OF NEW YORK Warts Lorwencu

STERN DISTRIC!

MARK SIRRIS, 18-CV-1087-MJR

DECISION AND ORDER

Plaintiff,

-V-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Pursuant to 28 U.S.C. §636(c), the parties consented to have a United States

Magistrate Judge conduct all proceedings in this case. (Dkt. No. 21)

Plaintiff Mark Sirris (“plaintiff”) brings this action pursuant to 42 U.S.C. §§405(g)

and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social

Security (“Commissioner” or “defendant”) denying his application for Supplemental

Security Income (“SSI”) under the Social Security Act (the “Act”). Both parties have

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

Procedure. For the following reasons, plaintiffs motion (Dkt. No. 15) is denied and

defendant's motion (Dkt. No. 18) is granted.

BACKGROUND"

Plaintiff filed for SSI on March 18, 2014, alleging disability beginning November 1,

2013, due to depression, anxiety, degenerative disc disease, limited use of his left hand,

joint stiffness, and foot pain. (Tr. 19, 58, 109-17, 135, 336, 338)? His claim was initially

The Court presumes the parties’ familiarity with plaintiff's medical history, which is summarized in the

moving papers. The Court has reviewed the medical record, but cites only the portions of it that are relevant

to the instant decision.

? References to “Tr.” are to the administrative record in this case. (Dkt. No. 7)

denied, and plaintiff then appeared and testified at an administrative hearing on February

6,2015. (Tr. 19, 34-56, 58-75) Administrative Law Judge (“ALJ”) William Weir issued an

unfavorable decision on April 10, 2015. (Tr. 16-29) The Appeals Council subsequently

denied review on September 23, 2015. (Tr. 1-5) Plaintiff filed a complaint with this Court

on November 20, 2015, after which the Court remanded plaintiff's case to the agency for

further analysis of the medical evidence. (Tr. 397-434)

Following remand, a hearing was held February 5,.2018 before ALJ Weir, at-which

plaintiff, his counsel, and a vocational expert appeared and testified. (Tr. 336, 356-96).

On February 28, 2018, the ALJ again issued an unfavorable decision. (Tr. 333-48) The

Appeals Council declined to review the ALJ’s decision on August 10, 2018. (Tr. 321-26)

This action followed. (Dkt. No. 1)

The issue before the Court is whether there was substantial evidence to support

the ALJ’s decision that plaintiff was not under a disability as defined by the Act.

DISCUSSION

I, Scope of Judicial Review

The Court's review of the Commissioner's decision is deferential. Under the Act,

the Commissioner's factual determinations “shall be conclusive” so long as they are

“supported by substantial evidence,” 42 U.S.C. §405(g), that is, supported by “such

relevant evidence as a reasonable mind might accept as adequate to support [the]

conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks

and citation omitted). “The substantial evidence test applies not only to findings on basic

evidentiary facts, but also to inferences and conclusions drawn from the facts.” Smith v.

Colvin, 17 F. Supp. 3d 260, 264 (W.D.N.Y. 2014). “Where the Commissioner's decision

rests on adequate findings supported by evidence having rational probative force,” the

Court may “not substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart,

312 F.3d 578, 586 (2d Cir. 2002). Thus, the Court's task is to ask “whether the record,

read as a whole, yields such evidence as would allow a reasonable mind to accept the

conclusions reached’ by the Commissioner.” Silvers v. Colvin, 67 F. Supp. 3d 570, 574

(W.D.N.Y. 2014) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).

Two related rules follow from the Act's standard of review. The first is that “[i]t is

the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and.to

appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health &

Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The second rule is that “[glenuine

conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d

at 588. While the applicable standard of review is deferential, this does not mean that the

Commissioner's decision is presumptively correct. The Commissioner's decision is, as

described above, subject to remand or reversal if the factual conclusions on which it is

based are not supported by substantial evidence. Further, the Commissioner’s factual

conclusions must be applied to the correct legal standard. Kohler v. Astrue, 546 F.3d

260, 265 (2d Cir. 2008). Failure to apply the correct legal standard is reversible error. /d.

lf. Standards for Determining “Disability” Under the Act

A “disability” is an “inability to engage in any substantial gainful activity by reason

of any medically determinable 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). The Commissioner may find the

claimant disabled “only if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but cannot, considering his age,

education, and work experience, engage in any other kind of substantial gainful work

which exists in the national economy, regardless of whether such work exists in the

immediate area in which he lives, or whether a specific job vacancy exists for him, or

whether he would be hired if he applied for work.” /d. §423(d)(2)(A). The Commissioner

must make these determinations based on “objective medical facts, diagnoses or medical

opinions based on these facts, subjective evidence of pain or disability, and . . . [the

claimant's] educational background, age, and work experience.” Dumas v. Schweiker,

412 F.2d 1545, 1550 (2d. Cir. 1983) (first alteration in original) (quoting Miles v. Harris,

645 F.2d 122, 124 (2d Cir. 1981)).

To guide the assessment of whether a claimant is disabled, the Commissioner has

promulgated a “five-step sequential evaluation process.” 20 C.F.R. §404.1520(a)(4).

First, the Commissioner determines whether the claimant is “working” and whether that

work “is substantial gainful activity.” fd. §404.1520(b). If the claimant is engaged in

substantial gainful activity, the claimant is “not disabled regardless of [his or her] medical

condition or... age, education, and work experience.” /d. Second, if the claimant is not

engaged in substantial gainful activity, the Commissioner asks whether the claimant has

a “severe impairment.” Id. §404.1520(c). To make this determination, the Commissioner

asks whether the claimant has “any impairment or combination of impairments which

significantly limits [the claimant's] physical or mental ability to do basic work activities.”

Id. As with the first step, if the claimant does not have a severe impairment, he or she is

not disabled regardless of any other factors or considerations. /d. Third, if the claimant

does have a severe impairment, the Commissioner asks two additional questions: first,

whether that severe impairment meets the Act’s duration requirement, and second,

whether the severé impairment is either listed in Appendix 1 of the Commissioner's

regulations or is “equal to” an impairment listed in Appendix 1. /d. §404.1520(d). If the

claimant satisfies both requirements of step three, the Commissioner will find that he or

she is disabled without regard to his or her age, education, and work experience. /d.

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

Commissioner's analysis proceeds to steps four and five. Before doing so, the

Commissioner must “assess .and make a finding about [the claimant's] residual functional

capacity ["RFC"] based on all the relevant medical and other evidence” in the record. /d.

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

Id. §404.1545(a)(1). The Commissioner's assessment of the claimant's RFC is then

applied at steps four and five. At step four, the Commissioner “compare[s] [the] residual

functional capacity assessment . . . with the physical and mental demands of [the

claimant's] past relevant work.” Id. §404.1520(f). If, based on that comparison, the

claimant is able to perform his or her past relevant work, the Gommissioner will find that

the claimant is not disabled within the meaning of the Act. /d. Finally, if the claimant

cannot perform his or her past relevant work er does not have any past relevant work,

then ait the fifth step the Commissioner considers whether, based on the claimant's RFC,

age, education, and work experience, the claimant “can make. an adjustment to other

work.” fd. §404.1520(g)(1). If the claimant can. adjust to other work, he or she is not

disabled. fd. lf, however, the claimant cannot adjust to other work, he or she is disabled

within the meaning of the Act. /d.

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

If the claimant carries their burden through the first four steps, “the burden then shifts to

the [Commissioner] to show there is other gainful work in the national economy which the

claimant could perform.” Carrolf, 705 F.2d at 642.

Il. The ALJ’s Decision

The ALJ followed the required five-step analysis for evaluating plaintiff's claim.

Under step one, the ALJ found that plaintiff did not engage in substantial gainful activity

since the application date of March 18, 2014. (Tr. 338) At step two, the ALJ found that

plaintiff had severe impairments of mood disorder, generalized anxiety disorder, and

degenerative disc disease of the lumbar and cervical spine; and the nonsevere

impairment of status-post amputation of left middle finger. (/d.) At step three, the ALJ

determined that plaintiff did not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments. (Tr. 339) Before

proceeding to step four, the ALJ found that plaintiff had the RFC to perform light work,*

except limited to simple repetitive one and two step tasks, no complex work; can

incidentally reach overhead; occasionally crawl, bend, crouch, stoop, and kneel:

incidental public and occasional co-worker and supervisory contact, and no more than

one change in the workplace or general task day. (Tr. 340)

Proceeding to step four, the ALJ found that plaintiff was unable to perform his past

relevant work as a contractor. (Tr. 347} Proceeding fo step five, and after considering

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects

weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it

requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing

and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work,

you must have the ability to do substantially all of these activities. If someone can do light work, we

determine that he or she can also do sedentary work, unless there are additional limiting factors such as

loss of fine dexterity or inability to sit for long periods of time.” See 20 C.F.R. § 404.1567(b).

testimony from a vocational expert, in addition to plaintiff's age, work experience and

RFC, the ALJ found that there were other jobs that exist in significant numbers in the

national economy that plaintiff could perform, such as injection molder and small products

assembly. (Tr. 347-48) Accordingly, the ALJ. found that plaintiff had not been under a

disability within the meaning of the Act. (Tr. 348)

IV. Plaintiffs Challenges

Plaintiff argues that the ALJ’s decision was unsupported by substantial evidence

because: (1) the ALJ selectively read the opinion evidence, relied on his own lay opinion,

and failed to close gaps in the record; and (2) the record contradicts the assessed RFC

for light work with exceptions. (See Dkt. No. 15-1 at 2, 13-30)*

A. Opinion Evidence

it is the ALJ’s role to resolve conflicts in the record medical evidence. Seé Veino,

312 F.3d at 588; see also Pope v. Barnhart, 57 Fed. Appx. 897, 899 (2d Cir. Feb. 24,

2003) (summary order; “[aJn ALJ has an independent duty to resolve ambiguities and

inconsistencies . . . [but] where the inconsistencies do not appear resolvable, the ALJ

may decide based on the available evidence”). An ALU may properly discount the opinion

of a treating or examining physician when the opinion is internally inconsistent or

inconsistent with other evidence. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.

2004); see also Domm v. Colvin, 579 Fed. Appx. 27, 28 (2d Cir. Sept. 23, 2014) (summary.

order); Micheli v. Astrue, 501 Fed. Appx. 26, 28-29 (2d Cir. Oct. 25, 2012) (summary

4 The Local Rules of Civil Procedure for this District provide a 30-page. limit on opening briefs in Social

Security cases. See Loc. R. Civ. P. 5.5(d)(4). Plaintiff's opening brief is 30 pages and contains 42

footnotes, many of which span half ofa page in length. Plaintiffs excessive use of footnotes therefore

violates the Local Rules. See Loc. R. Civ. P. 10(a)(3) (“extensive footnotes ... may not be used to

circumvent page limitations”). Counsel is again reminded to comply with the Local Rules in future briefs.

sao v. Comm'r of Soc. Sec., No. 18-CV-0711, 2020 WL 561036, at *2, n.1 (W.D.NLY. Feb..5,

order); see also Burguess v. Berryhill, No. 17-CV-6204, 2018 WL 3569933, at *4

(W.D.N.Y. July 25, 2018).

Generally, when assessing a plaintiff's RFC, “[a]n ALJ must rely on the medical

findings contained within the record and cannot make his own diagnosis without

substantial medical evidence to support his opinion.” Goldthrite v. Astrue, 535 F. Supp.

2d. 329,339 (W.D.N.Y. 2008). However, when the medical evidence shows only minor

impairments, “an ALJ permissibly can render a common-sense judgment about functional

capacity even without a physician's assessment.” Wilson v. Colvin, 13-CV-6286, 2015

WL 1003933, *21 (W.D.N.Y. Mar. 6, 2015); see also Matta v. Astrue, 508 Fed. Appx. 53,

96 (2d Cir. 2013) (“Although the ALJ’s conclusion may not perfectly correspond with any

of the opinions of medical sources cited in his decision, he was entitled to weigh all of the

evidence available to make an RFC finding that was corisistent with the record as a

whole.”).

In this case, the ALJ evaluated the following opinion evidence:

On June 26, 2014, Samuel Balderman, M.D., performed a consultative orthopedic

examination of Plaintiff. (Tr. 229-33) Plaintiff lost part of the middle finger in his left hand

in an accident 15 years prior to the examination. (Tr. 229) He used marijuana daily. (Tr.

229, 231) Dr. Balderman observed that Plaintiff walked and stood normally, and plaintiff

was able to squat the full range. (Tr. 230) Plaintiff was able to walk on his heels and

toes, rise from a chair, and climb on and off the examination table without difficulty. (Tr.

230) He had normal muscle strength and range of motion in his neck, shoulders, elbows,

forearms, wrists, fingers, hips, knees, and ankles. (Tr. 230) He had reduced flexion, but

otherwise normal range of motion, in his lower back. (Tr. 230) Straight leg raising was

negative. (Tr. 230) Plaintiff had mildly reduced grip strength in his left hand but normal

grip strength in his right hand. (Tr. 230) His hand and finger dexterity was intact. (Tr.

230) X-rays of Plaintiff's lumbar spine showed old compression fractures at 711 and L1,

but no disc space narrowing. (Tr. 231, 233) Dr. Balderman said that Plaintiff had mild

left-hand limitations in repetitive gross motor activities, but no other physical limitations.

(Tr. 231) The ALJ gave this opinion little weight insofar the assessment of mild limitation

of the left hand for repetitive gross motor function was inconsistent with the medical record

and hearing testimony. (Tr. 346)

On December 11, 2015, plaintiff underwent a consultative examination with Dr.

Donna Miller. (Tr. 763) Plaintiff walked and stood normally, and he was able to squat the

full range. (Tr. 767) He was able to walk on his heels and toes, rise from a chair, and

climb on and off the examination table without difficulty. (Tr. 767) He had normal muscle

strength and range of motion in his shoulders, elbows, forearms, wrists, fingers, hips,

knees, and ankles. (Tr. 768) He had reduced range of motion in his back and neck, bist

straight leg raising was negative. (Tr. 768). Plaintiff declined to demonstrate his abilities

to zip, tie, button, and Velcro, but did not request assistance to get dressed or undressed.

(Tr. 768) Dr. Miller diagnosed neck and mid-back pain, and she opined that plaintiff had

mild to moderate limitations in heavy lifting, bending, carrying, reaching, pushing, and

pulling. (Tr. 768) The ALJ afforded this opinion “great weight” because it was based on

an examination and program knowledge. Additionally, the ALJ observed that plaintiff

testified that he had no problems with tying his shoes and buttoning. (Tr. 346)

In June 2014, Janine Ippolito, Psy.D., performed a consultative psychological

evaluation of Plaintiff. (Tr. 224-28) Plaintiff said that he had struggled with depression

since childhood, and his symptoms had worsened because he was under financial stress.

(Tr. 224-25) His daily activities included cooking, cleaning, household chores, caring for

his cat, washing laundry, shopping for groceries, watching television, using public

transportation, and performing personal care. (Tr. 226-27) He was able to interact with

his neighbors and sisters, and his hobbies included swimming, gardening, walking,

playing tennis, and going to the park. (Tr. 226) Plaintiff used marijuana daily. (Tr. 225)

Dr. Ippolito observed that Plaintiff had neutral mood, dull affect, fluent and clear

speech, coherent and goal-directed thought processes, intact attention and

concentration, intact memory, average intellectual functioning, and fair insight and

judgment. (Tr. 225-26) Dr. Ippolito diagnosed depression and a marijuana use disorder,

and she opined that plaintiff had no limitations in his abilities to follow and understand

simple instructions, perform simple tasks independently, maintain attention and

concentration, maintain a regular schedule, learn new tasks, perform complex tasks

independently, make appropriate decisions, and relate adequately with others. (Tr. 227)

Additionally, plaintiff had mild to moderate limitations in his ability to appropriately deal

with stress. (Tr. 227) The ALJ afforded this opinion some weight, rejecting the portion of

the opinion finding that plaintiff was capable of performing complex tasks as inconsistent

with the medical evidence and in conflict with the RFC. (Tr. 346)

In December 2015, Dr. Ippolito performed a second consultative psychological

evaluation of Plaintiff. (Tr. 760-64) Plaintiff reported anxiety and nervousness related to

financial stress, debt, and danger of losing his home. (Tr. 761) His daily activities

included cooking, cleaning, caring for his cat, washing laundry, shopping for groceries,

watching television, reading, using public transportation, socializing with friends, and

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performing personal care. (Tr. 762-63) Dr. Ippolito observed that plaintiff had irritable

mood and affect, fluent and clear speech, coherent and goal-directed thought processes,

mildly impaired attention and concentration, impaired memory, average intellectual

functioning, and fair insight and judgment. (Tr. 761-62) Dr. Ippolito diagnosed

depression, and she opined that plaintiff had no limitations in his abilities to follow and

understand simple instructions, perform simple tasks, maintain attention and

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

make appropriate decisions. (Tr. 763) Dr. Ippolito further opined that plaintiff had

moderate limitations in his ability to appropriately deal with stress, and he had moderate

to marked limitations in relating adequately with others. (Tr. 763) The ALJ gave this

opinion great weight because it was based on examination, program knowledge, and

consistent with the RFC. (Tr. 346)

On January 30, 2015, plaintiffs treating social worker Raymond Lorigo drafted a

letter stating that plaintiffs mental health issues would “severely impact his ability to

work.” (Tr. 292) He also stated that he doubted that plaintiff “would be able to return to

competitive employment.” (/d.) The ALJ gave this: opinion little weight on the basis that

his opinion was inconsistent with the opinions of Dr. Ippolito, and was inconsistent with

his own treatment notes from September, 2017, which document that plaintiff had

“work[ed] through” his depression but could no longer perform “physical” work. (Tr. 346)

The ALJ further rejected the opinion because the issue of disability is reserved to the

Commissioner. (/d.)

On January 11, 2016, agency medical consultant D. Bruno, Psy.D., reviewed

plaintiff's medical records and opined that he retained the capability to perform a range

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of simple work that did not require significant contact with others. (Tr. 470, 473-74) The

ALJ afforded this opinion “some weight” as it was based on record review and consistent

with the opinions of Dr. Ippolito. (Tr. 346)

Contrary to plaintiff's assertion, the ALJ did not fail to properly account for Dr.

Miller's “vague and incomplete” hand, carrying, and reaching limitations. (Dkt. No. 15-1

at 13) Dr. Miller explicitly opined that plaintiff's hand and finger dexterity were in tact-and

his grip strength was 5/5 bilaterally. (Tr. 768) She did not find a hand limitation. Further,

the ALJ did properly account for Dr. Miller's opinion that plaintiff had mild to moderate

limitations in “heavy” physical activities by limiting plaintiff's RFC to light work with

additional postural limitations. (Tr. 340, 768)

Plaintiff also contends that although the ALJ gave Dr. Ippolito’s 2015 consultative

examination great weight, the ALJ improperly accounted for the “stress limitations and

additional social limitations” contained in that opinion. (Dkt. No. 15-1 at 16-17) A reading

of the ALJ’s decision belies this contention. The formulated RFC restricted plaintiff to

simple work, only incidental public and occasional co-worker and supervisory contact,

and no mere than one change in workplace or general task per day. (Tr. 340) This is

consistent with, if not more restrictive than Dr. Ippolito’s findings, and is sufficient to

account for the plaintiffs stress and social limitations. See Herb v. Comm’r of Soc. Sec.,

366 F. Supp. 3d 444, 447 (W.D.N.Y. 2019) (“[E]ven without explicitly referencing stress

limitation, an RFC determination may adequately account for a claimant’s stress-related

limitations. For example, an RFC limiting a plaintiff to occasional interaction with co-

workers and the public, and to the performance of simple, routine tasks, may account for

the plaintiff's stress-related limitations.”) (collecting cases); see also Annarino v. Comm’r

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of Soc. Sec., No. 18-CV-130, 2019 WL 464604, at *3 (W.D.N.Y. Sept. 24, 2019) (limitation

to simple and routine tasks adequately accounted for moderate limitations in stress).

Plaintiff also challenges the ALJ’s rejection of Mr. Lorigo’s statement that he

doubted plaintiff could “return to competitive employment.” (Tr. 292, 346) As an initial

matter, Mr. Lorigo was not an “acceptable medical source” at the time of the ALJ's

decision, and the “treating physician” rules in 20 C.F.R. § 416.927(c)(2) do not apply to

him. See 20 C.F.R. § 416.913(a) (2015).5 Because Mr. Lorigo was not a physician or

other acceptable medical source, the ALJ had broad discretion to discount his statements:

See Genier v. Astrue, 298 Fed. Appx. 105, 108-09 (2d Cir. 2008) (non-acceptable medical

sources “do not demand the same deference as those of a treating physician,” and an

ALJ is “free to discount the assessments [of such sources] accordingly in favor of the

objective findings of other medical doctors”). In addition, the ALJ was not required to

attribute Mr. Lorigo's conclusory statement that plaintiff was unable to work any significant

weight. See 20 C.F.R. § 416:927(d)(1) (reserving for the Commissioner the responsibility

“for making the determination or decision about whether [a claimant] meet[s] the statutory

definition of disability”); Michels v. Astrue, 297 Fed. Appx. 74, 76 (2d Cir. Oct. 30, 2008)

(‘[a] doctor's designation of a party as disabled begins the disability inquiry, it does not

end it."); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“physician’s statement that the

claimant is disabled cannot itself be determinative’).

The ALJ’s rejection of Mr. Lorigo’s opinion as inconsistent with his own treatment

notes from September, 2017, was also supported by substantial evidence. Those notes

In January 2017, the agency amended 20 C.F.R. § 416.913. See Revisions to Rules Regarding the

Evaluation of Medical Evidence, 81 FR 62559 (Sept. 9, 2016); Revisions to Rules Regarding the Evaluation

of Medical Evidence, 82 FR 5844 (Jan. 1, 2017). The new regulations are not effective for claims filed

before March 27, 2017.

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indicate that plaintiff was “basically stable,” and despite issues with depression had “been

able to work through it,” and that he reported limited motivation. (Tr. 856-57) Although

plaintiff avers that the ALJ could not have relied on Mr. Lorigo’s notes “because the ALJ

did not have Mr. Lorigo’s notes or obtain missing records,” see Dkt. No. 15-1 at 18, the

hearing exhibits contain the specific treatment note cited by the ALJ. To the extent plaintiff

alleges there is a gap in the record, it is unclear that any relevant records are missing

from the transcript.

The ALJ generally bears a burden for developing the record, even in

circumstances where a claimant is represented. See e.g., Fredrick v. Comm’r Soc. Sec.,

No. 16-CV-898, 2018 WL 4178284, at *1 (W.D.N.Y. Aug 31, 2018). “By the same token,

‘an ALJ does not have an affirmative duty to expand the record ad infinitum. Instead, he

or she must only develop it when there are gaps in the record, or when the record serves

as an inadequate basis on which to render-a decision.” Wilson v. Berryhill, No. 16-CV-

0756, 2018 WL 6628987, at *4 (W.D.N.Y. Dec. 19,2018) (quoting Walker v. Astrue, No.

11-CV-766, 2012 WL 4473249, at *3 (W.D.N.Y. Sep. 26, 2012)).

On January 8, 2018, plaintiff's counsel notified the ALJ that he planned to seek

additional records from Mid Erie Counseling (Mr. Lorigo) and St. Joe’s Hospital. (Tr. 649)

At the February 5, 2018 hearing, counsel represented to the ALJ that the “only... .

documeniation” missing from the record were the “updated records from St. Joseph's

Hospital.” (Tr. 358-59) Counsel acknowledged that records from Mid Erie Counseling

were contained in Exhibit 21-F, and did not assert that those records, as submitted, were

incomplete. The ALJ advised counsel that “anything that shows up before | make my

decision, |'ll be happy to consider it.” (Tr. 358-59)

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Later in the hearing, upon questioning about plaintiff's psychiatric conditions, the

ALJ referred to plaintiff's treatment note from Mr. Lorigo dated September 24, 2017. (Tr.

384) Counsel responded that “it looks like those records go to September of 2017...

we're in February of 2018 . . . we would need to get other notes from his continuing

evaluations.” (Tr. 384) The ALJ stated again that he would “give time to get that.” (/d.)

Although plaintiff identified the missing records as relating to the four-month period

immediately preceding the hearing date, he now contends that “most treatment notes

were missing from 2014-2017.” (Dkt. No. 19 at 5) Plaintiffs argument that the ALJ failed

to develop the record concerning Mr. Lorigo’s records is unclear and inconsistent, if not

disingenuous.

In any event, plaintiffs counsel failed to submit any records or request additional

time in the 23 days that elapsed between the hearing date and the ALJ’s decision. Nor

did he submit any additional medical evidence to the Appeals Council or to this Court. By

inquiring about what treatment documents might be missing from the record and providing

plaintiffs counsel the opportunity to obtain and submit subsequently acquired evidence,

the ALJ properly discharged his duty to develop the record. See Melton v. Colvin, No.

13-CV-6188, 2014 WL 1686827, at *8 (W.D.N.Y. Apr. 29, 2014) (“[T]he ALJ satisfied her

duty to develop the record by holding the record open after the hearing and subsequently

granting Plaintiff's request for an additional 7-day extension.”) (collecting cases); see also

Brown v. Colvin, No. 14-CV-1784, 2016 WL 2944151, at *3 (D. Conn. May 20, 2016)

(“The Court finds that, under these circumstances, the ALJ fulfilled her duty to develop

the record. While Plaintiff did testify to worsening of symptoms relating to his diabetes in

the year or so before the hearing, his testimony and statements from his attorney also

15

indicate (or at the very least strongly suggest) that updated records ... were forthcoming..

The ALJ left the record open to accept those records. When an ALJ holds open the record,

and a claimant fails to provide additional evidence, the ALJ wil! be found to have fulfilled

her duty to develop the record.”).

Finaily, plaintiffs argument that the ALJ improperly based the RFC on his own lay

opinion of the medical evidence is without merit. (Dkt. No. 15-1 at 13) Because the

medical opinions and other evidence of record offered differing descriptions of plaintiff's

functional limitations, it was the ALJ’s role to weigh and resolve. conflicts in the evidence.

See Veino, 312 F.3d at 588. While the ALJ's RFC determination is a medical question,

there is no requirement that an RFC finding correspond directly to a specific medical

opinion. See Trepanier v. Comm’r of Soc. Sec. Admin., 752 Fed. Appx. 75, at 79 (2d Cir.

Nov. 13, 2018) (the ALJ’s RFC determination need not perfectly correspond with any of

the opinions of medical sources cited in his decision); Matta, 508 Fed. Appx. at 56 (ALJ’s

conclusion need not “perfectly correspond with any of the opinions of medical sources

cited in his decision”). The pertinent regulations require the ALJ to assess an RFC based

on all relevant medical and other evidence, including any lay statements or information

about what plaintiff could do, See 20 C.F.R. §§ 416.945(a)(3), 416.946(c). Here, the ALJ

thoroughly analyzed plaintiff's testimony, the objective medical findings, and the opinion

evidence in formulating plaintiffs RFC. Thus, the Court finds that ALJ did not rely on his

own lay opinion, but rather, properly weighed the evidence as a whole in making his RFC

determination.

It is also worth noting that the ALJ did in fact rely heavily on the opinions of Drs.

Miller and [ppolito in determining the RFC, which he was entitled to do. See Mongeur v.

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Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) (holding that the report of a consultative

physician can constitute substantial evidence to support an ALJ's finding that the claimant

is not disabled); Peirie v. Astrue, 412 Fed. Appx. 401, 405-06 (2d Cir. 2011) (ALJ properly

concluded that the two consultative psychologists’ opinions, finding that plaintiff was able

to perform unskilled work, were entitled to controlling weight because they were well

supported and consistent with the record; and moreover, the opinions constituted

substantial evidence in support of the ALJ’s RFC).

Indeed, the bulk of plaintiff's lengthy and discursive arguments simply disagree

with the ALJ’s evaluation of the evidence. The Court reiterates that the substantial

evidence standard is so deferential that there could be “two contrary rulings on the same

record [and both] may be affirmed as supported by substantial evidence.” Cage v. Comm’r

of Soc. Sec., 692 F.3d 118, 127 (2d Cir. 2012) (citation omitted). “[O]nce an ALJ finds

facts, {the Court] can reject those facts only if a reasonable factfinder would have to

conclude otherwise.” Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012)

(emphasis in original; internal quotation omitted). As long as substantial record evidence

supports the ALJ’s determination of the facts, the Court must defer to the ALJ's decision.

See Vilardi v. Astrue, 447 Fed. Appx. 271, 272 (2d Cir. Jan. 10, 2012) (summary order);

Rouse v. Colvin, No. 14-CV-817, 2015 WL 7431403, at *6 (W.D.N.Y. Nov. 23, 2015)

(“[T]his 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.’”) (quoting Valente v.

Sec’y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984). This Court will

not reweigh the evidence presented to the ALJ.

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B. RFC Finding

Plaintiff appears to argue that the RFC of a limited range of light work was

unsupported by substantial evidence. (Dkt. No. 15-1 at 24-30) In a related argument,

plaintiff challenges the ALJ's assessment of his credibility. (/d. at 28)

First, plaintiff contends that ALJ did not account for his reported inability to have

contact with supervisors and coworkers and use a keyboard due to his left, non-dominant

hand limitations, (Dkt. No. 15-1 26, 28, 30) The ALJ did account for plaintiff's social

limitations by incorporating only incidental public and occasional co-worker and

supervisory contact. (Tr. 340) Moreover, Despite plaintiff's 1998 partial middle finger

amputation on his left hand, he testified that he was able to perform fine motor tasks like

tying his own shoes and buttoning his clothing. (Tr. 338) Plaintiffs physicians repeatedly

opined throughout the relevant period that plaintiffs muscle strength, motor function, and

coordination in his left arm and hand were normal, despite his 1998 finger injury. (Tr.

257, 280, 709, 726, 743, 755, 790, 802) Additionally, plaintiff was able to continue

working as a construction contractor, earning $28,214 the following year and $13,142 in

2003. (Tr. 125-26) He performed additional “under the table” home maintenance work

that is not reflected in his earnings records. (Tr. 380) As such, the ALJ found that

plaintiff's left partial finger amputation was nonsevere. (Tr. 338)

While it is true that an RFC “must account for limitations imposed by both severe

and nonsevere impairments,” Parker-Grose v. Astrue, 462 Fed. Appx. 16, 18 (2d Cir.

2012) (summary order) (citing 20 C.F.R. § 416.945(a)(2)), the Court finds no error in this

regard because the administrative decision demonstrates that the ALJ considered

plaintiff's partial left finger amputation in the RFC analysis, and ultimately determined that

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it did not warrant any additional limitations. In formulating the RFC, the ALJ discussed

plaintiff's testimony and daily activities, as well as the consultative examinations of Drs.

Balderman and Miller with respect to his left hand injury. (Tr. 341, 342, 343, 345) The

Court finds that the ALJ considered plaintiffs nonsevere impairment in determining the

RFC and, as discussed above, that substantial evidence supports his conclusion that it

did not warrant any limitations. See Cromwell v. Comm’r of Soc. Sec., No. 18-CV-1194,

2020 WL 409989, at *2 (W.D.N.Y. Jan. 24, 2020) (“Accordingly, the Court finds that the

ALJ considered Plaintiffs mental impairments in determining his RFC and that substantial

evidence supports his conclusion that they do not warrant any limitations.”); Goettel v.

Comm’r of Soc. Sec., No. 18-CV-1285, 2019 WL 6037169, at *4 (W.D.N.Y. Nov. 14, 2019)

( "the ALJ specifically considered the medical evidence pertaining to Plaintiffs mental

impairments at step four and determined no additional mental limitations were

warranted”); Crumedy v. Comm’r of Soc. Sec., No. 16-CV-1261, 2017 WL 4480184, at

*6, (N.D.N-Y. Oct. 6, 2017) (evidence suggested that plaintiff's impairment imposed no

more than a minimal effect on his functioning and substantial evidence supported the

conclusion that there was no basis for including limitations regarding the nonsevere

impairment in the RFC).

Second, Plaintiff argues that the ALJ improperly considered his significant activities

of daily living during the relevant period. (Dkt. No. 15-1 at 28-30) 20 C.F.R. § 416.929(c)

and SSR 16-3p explicitly authorize an ALJ to consider Plaintiff's daily activities. It is the

function of the ALJ, not the reviewing court, to assess the credibility of witnesses. See

Tankisi v. Comm’r of Soc. Sec., 521 Fed. Appx. 29, 35 (2d Cir. 2013).

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The record indicates, and as discussed by the ALJ, that plaintiff lived alone and

performed daily activities that included cooking, household cleaning and chores,

maintaining his yard, washing laundry, going outside daily, using public transportation,

riding a bicycle, shopping for groceries and household items, caring for his cat, watching

television, reading, fishing, swimming, hiking, playing tennis, going to the park, traveling,

gardening, socializing with neighbors and friends, and performing personal care. (Tr.

339-40, 341, 345, see Tr. 142-46, 226-27, 376-78, 762-63) The ALJ considered plaintiff's

daily activities in the context of the record as a whole, and properly found them

inconsistent with plaintiff's allegations of a disabling impairment. See Sloan v. Colvin, 24

F.Supp.3d 315, 328-29 (W.D.N.Y. 2014) (remand not required where ALJ evaluated

plaintiff's credibility based on plaintiff's testimony, activities of daily living and conflicting

medical evidence); O'Dell v. Colvin, No. 16 Civ. 368, 2016 WL 6882861, at *21 (S.D.N.Y.

Nov. 22, 2016) (ALJ properly discounted the plaintiff's credibility based on plaintiff's daily

activities which included volunteering with the fire department); Allen v. Astrue, No. 11-

CV-330, 2012 WL 951553, at *3 (N.D.N.Y. Mar. 20, 2012) (ALJ properly discounted the

plaintiffs credibility based on plaintiffs testimony that he had performed odd jobs during

the large gaps in his employment history).

In sum, the ALJ's decision is supported by subsiantial evidence and free of fegal

error.

CONCLUSION

For the foregoing reasons, plaintiff's motion for judgment on the pleadings (Dkt.

No. 15) is denied and the Commissioner's motion for judgment on the pleadings (Dkt. No.

18) is granted.

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

SO ORDERED.

Dated: August 31, 2020

Buffalo, New York

MICHAEL J. ROEMER

United States Magistrate Judge

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