Martinez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

LORI M.,1

DECISION AND ORDER

Plaintiff,

v. 1:19-cv-00570 (JJM)

COMMISSIONER OF SOCIAL SECURITY,2

Defendant.

______________________________________

This is an action brought pursuant to 42 U.S.C. §1383(c)(3) to review the final

determination of defendant Andrew M. Saul, the Commissioner of Social Security, that plaintiff

was not entitled to Supplemental Security Income (“SSI”). Before the court are the parties’

cross-motions for judgment on the pleadings [12, 19]. 3 The parties have consented to my

jurisdiction [21]. Having reviewed the parties’ submissions [12, 19, 20], the Commissioner’s

motion is granted, and plaintiff’s motion is denied.

1 In accordance with the guidance from the Committee on Court Administration and Case

Management of the Judicial Conference of the United States, which was adopted by the Western District

of New York on November 18, 2020 in order to better protect personal and medical information of non-

governmental parties, this Decision and Order will identify the plaintiff by first name and last initial.

2 Andrew M. Saul was sworn in as Commissioner of Social Security on June 17, 2019, and is

automatically substituted as the defendant in this action. See Fed. R. Civ. P. (“Rule”) 25(d).

3 Bracketed references are to the CM/ECF docket entries. Unless otherwise indicated, page

references are to numbers reflected on the documents themselves rather than to the CM/ECF pagination.

BACKGROUND

The parties’ familiarity with the 866-page administrative record [6] is presumed.

In July 2015, plaintiff filed an application for SSI,4 alleging a disability onset date of May 27,

2009, due to lower lumbar disc bulges, spurs in the spine, arthritis, asthma, scoliosis, depression,

anxiety, sleep apnea, high cholesterol, migraines, drug abuse, and comprehension problems.

Administrative record [6], pp. 181, 185. At the time of her application, plaintiff was 47 years

old, and had a work history that included cashier and prep cook in grocery and fast food settings,

and factory work. Id., p. 186. After the application was denied, an administrative hearing was

conducted before Administrative Law Judge (“ALJ”) Gregory Moldafsky on December 5, 2017,

at which plaintiff, who appeared with an attorney, and vocational expert Kim Bates testified. Id.,

pp. 31-78.

The record contains four medical opinions concerning plaintiff’s functional

limitations:

1. John Schwab, D.O. performed a consultative examination of plaintiff on

September 25, 2015. [6], p. 258. Plaintiff outlined her history of low and thoracic back

pain, carpal tunnel syndrome, asthma, sleep apnea, migraines, and emphysema. Id.

Upon examination, plaintiff did not appear to be in acute distress and her gait was

normal. Id., p. 259. She was able to walk on heels and toes with no difficulty and needed

no help getting on and off the exam table, but stopped her squat at 70%. Id. Her stance

was normal, she did not use any assistive device, and was able to rise from a chair

without difficulty. Id. Dr. Schwab noted no abnormal findings except with respect to

plaintiff’s lumbar spine, which showed flexion to 70 degrees and extension to 10 degrees,

4 I have used the date used by the parties, but the record appears to indicate that the application was

filed in August 2015. [6], p. 164.

with full bilateral flexion and rotary movement. Id., p. 260. She had a positive straight

leg raise test at 30 degrees bilaterally, and at 30 degrees bilaterally when performed

sitting. Id. Plaintiff’s deep tendon reflexes were “physiologic and equal” and her

strength was 5/5 in both upper and lower extremities, with no sensory deficit noted. Id.

Dr. Schwab noted no muscle atrophy in plaintiff’s extremities, and her grip strength was

5/5 bilaterally. Id., p. 261. Dr. Schwab’s diagnoses included low back pain, migraine

headaches, and asthma. Id. Plaintiff’s prognosis was “stable”. Id. Functionally, he

opined that plaintiff “has a mild restriction to bending, lifting, and carrying heavy

objects”. Id. He also stated plaintiff “should avoid excessive exercise”. Id.

2. Gregory Fabiano, Ph.D. performed a psychiatric consultative examination

on September 25, 2015. Id., p. 266. After taking a lengthy history, including information

concerning plaintiff’s current functioning (id., pp. 266-67), Dr. Fabiano performed a

mental status examination. Id., p. 268. In most areas of functioning, he described

plaintiff’s presentation as “normal”, “adequate”, “appropriate”, and “intact”. Id. He

found plaintiff’s “recent and remote memory skills” “mildly impaired perhaps due to

some distractibility” and opined under the area of “cognitive functioning” that plaintiff’s

“[i]ntellectual functioning appeared average”, but that her “[g]eneral fund of information

appeared limited”. Id., p. 268. Dr. Fabiano’s diagnoses included major depressive

disorder with recurrent episodes, and unspecified anxiety disorder. Id., p. 269. He

opined that plaintiff had no evidence of limitations in all areas of functioning, other than

“some mild limitations in her ability to appropriately deal with stress”. Id. He

recommended that plaintiff “continue with drug treatment” and “with her plan to initiate

psychological and psychiatric treatment”. Id., p. 270. He found her prognosis “[f]air,

given the initiation of appropriate interventions. Id.

3. Plaintiff’s treating registered physician’s assistant, Ronald Miller, working

under David Stahl, M.D., completed a Medical Examination for Employability

Assessment, Disability Screening, and Alcoholism/Drug Addiction Determination form

on June 12, 2017. Id., pp. 431-32. He identified three primary medical conditions: left

shoulder pain, chronic low back pain, and migraine headaches. Id., p. 431. He opined

plaintiff’s prognosis for the shoulder pain and migraines was “fair”, but that her

prognosis for the low back pain was “poor”. Id. Under the section for functional

limitations, RPAC Miller checked boxes indicating that plaintiff was “moderately

limited” in her ability to walk; stand; sit; lift and carry; push, pull, and bend; and climb.

Id., p. 432. In areas of mental functioning, RPAC Miller identified no evidence of

limitations in most areas, but opined plaintiff was “moderately limited” in her ability “to

function in a work setting at a consistent pace”. Id.

4. Finally, state agency psychological consultant H. Tzetzo, Ph.D. stated on

October 13, 2015, after his review of Dr. Fabiano’s report, that plaintiff’s “psychiatric

impairments appear to be non-severe”. Id., p. 428.

Based upon the medical evidence and testimony, ALJ Moldafsky found that

plaintiff’s severe impairments were “lower lumbar disc bulges, spurs in the spine, arthritis,

asthma, scoliosis, obesity, sleep apnea, high cholesterol, migraines, depression, and anxiety”.

Id., p. 18. He concluded that plaintiff had the residual functional capacity (“RFC”) to perform a

full range of light work, with several modifications:

“[T]he claimant has the [RFC] to perform light work as defined in

20 CFR 416.967(b) except she can occasionally climb ramps and

stairs. She can never climb ladders, ropes, or scaffolds. She can

occasionally stoop, crouch, and crawl. She can have occasional

exposure to fumes, odors or other pulmonary irritants. She can

have occasional exposure to extreme cold. She is limited to simple

(as defined in the DOT as SVP levels 1 and 2), routine, repetitive

tasks, in a work environment that is not fast paced or has strict

production quotas (e.g. work that is goal based or measured by end

result). She is limited to jobs where changes in work setting or

processes are no more than occasional.”

Id., pp. 19-21. In reaching that RFC, ALJ Moldafsky discussed at length the opinions of Drs.

Schwab and Fabiano, but did not explicitly assign them a specific weight. See id., pp. 21, 23.

ALJ Moldafsky assigned the opinion of RPAC Miller “some” weight because it was “supported

by the evidence of record, revealing significantly normal exam findings” and “noted that the

claimant had up to moderate problems with postural activities and mental functioning”. Id., p.

24. Lastly, ALJ Moldafsky assigned the opinion of Dr. Tzetzo “little weight” because “he did

not have an opportunity to review the records received at the hearing level and assess[ ] the

severity of mental impairments”. Id., p. 24. ALJ Moldafsky also considered and discussed the

remaining medical and other evidence in the file, including: the plaintiff’s testimony (id., p. 20);

reports of laboratory tests including MRIs and x-rays (id., p. 21); and medical records and

treatment notes from Buffalo Spine and Sports Medicine (id.), University of Rochester Medical

Center concerning a neurosurgical consultation (id.), RPAC Miller and Dr. Stahl (id., p. 22),

Central New York Psychiatric Center (id.), Genesee/Orleans Council on Alcohol and Substance

Abuse (id.), and Orleans County Mental Health Clinic (id.).

As part of his analysis, ALJ Moldafsky found that plaintiff’s “statements about

the intensity, persistence and limiting effects of her symptoms are inconsistent with the evidence

of record”, explaining that:

“the claimant appears to manage her pain symptoms with pain

medications and without the need for further intervention, as

discussed above. While the claimant alleges that she needs a

walker to ambulate, the objective record in November 2017 does

not support the medical necessity, and the prescribed walker was at

the direct request by the claimant . . . . Additionally, the record

indicates that the claimant did not use an assistive device or had

any significant problems with gait, balancing, and or walking

noted at the medical appointments . . . . Therefore, the

undersigned does not find a basis to find an assistive device in the

claimant’s [RFC]. For the most part, the claimant’s physical

impairments are controlled and stable with compliance to

medication, and objective examinations showed mostly full range

of motions and strength as 5/5, despite other positive findings like

tenderness and a one-time positive Hoffman’s sign . . . . As for the

claimant’s mental health condition, the record shows significantly

normal mental status exam findings during the period at issue,

consistent with the lack of hospitalizations or emergency visits.

Finally, the claimant reportedly indicated to her medical providers

that she is able to take care of herself independently and use

transportation . . . .”

Id., pp. 23-24.

Based upon the RFC and the vocational expert’s testimony, ALJ Moldafsky

determined that plaintiff was able to perform jobs that exist in significant numbers in the national

economy, and therefore was not disabled from July 1, 2015. Id., p. 28. The Appeals Council

found no basis to change ALJ Moldafsky’s decision. Id., pp. 1-5. Thereafter, this action ensued.

DISCUSSION

A. Standard of Review

“A district court may set aside the Commissioner's determination that a claimant

is not disabled only if the factual findings are not supported by ‘substantial evidence’ or if the

decision is based on legal error.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42

U.S.C. §405(g)). Substantial evidence is that which a “reasonable mind might accept as

adequate to support a conclusion”. Consolidated Edison Co. of New York. Inc. v. NLRB, 305

U.S. 197, 229 (1938).

An adjudicator determining a claim for Social Security benefits employs a five-

step sequential process. Shaw, 221 F.3d at 132; 20 C.F.R. §§404.1520, 416.920. The plaintiff

bears the burden with respect to steps one through four, while the Commissioner has the burden

at step five. Talavera v. Astrue, 697 F.3d 145, 151 (2d. Cir. 2012).

Plaintiff argues that ALJ Moldafsky “did not rely on substantial evidence” to

determine her RFC and “instead relied upon his own lay interpretation of bare medical findings

regarding complex physical and mental impairments”, “failed to weigh all of the opinion

evidence”, and arrived at an RFC based upon “mischaracterizations” of the record and

“misstatement of fact”. Plaintiff’s Memorandum of Law [12-1], pp. 17-20. In addition, plaintiff

argues that the ALJ improperly assessed her testimony about the limiting effects of her

symptoms. Id., pp. 28-29. I disagree for the reasons discussed below.

B. Did ALJ Moldafsky, as a Layperson, Improperly Formulate the RFC?

An ALJ is “entitled to weigh all of the evidence available to make an RFC finding

that [is] consistent with the record as a whole”. Matta v. Astrue, 508 Fed. App’x 53, 56 (2d Cir.

2013) (Summary Order). Although an ALJ “may not substitute his own lay opinion for those of

medical experts”, he or she “is free to choose between properly submitted medical opinions”.

Mowry v. Commissioner of Social Security, 2019 WL 4643595, *3 (W.D.N.Y. 2019). The RFC

need “not perfectly correspond with any of the opinions of medical sources cited in his decision”.

Matta v. Astrue, 508 Fed. App’x 53, 56 (2d Cir. 2013) (Summary Order). See also Young v.

Berryhill, 2018 WL 2752443, *2 (W.D.N.Y. 2018) (“[i]t is well settled that an ALJ need not

adopt one or more medical opinions verbatim in order to render a sufficiently-supported RFC

determination”). “The question is, instead, whether the ALJ’s conclusion was ‘supported by the

record as a whole.’” Nieves v. Commissioner of Social Security, 2019 WL 4565112, *4

(S.D.N.Y. 2019) (quoting Tricarico v. Colvin, 681 Fed. App’x 98, 101 (2d Cir. 2017) (Summary

Order)). See Butler v. Commissioner of Social Security, 2017 WL 2834482, *8 (N.D.N.Y. 2017)

(“[i]t is well-recognized that the ALJ need not adopt any opinion in its entirety, but rather is

entitled to weigh all the evidence and adopt the limitations supported by the evidence”).

“Ultimately it is [p]laintiff’s burden to prove a more restrictive RFC than the RFC

assessed by the ALJ”. Beaman v. Commissioner, 2020 WL 473618, *6 (W.D.N.Y. 2020).

Plaintiff fails to articulate what, if any, additional limitations appear in Dr. Schwab’s or Dr.

Fabiano’s reports that the ALJ failed to include in the RFC. Nor does plaintiff identify any other

evidence in the record that satisfies her burden to prove more restrictive limitations than those

already included in the RFC. Moreover, I do not agree that because ALJ Moldafsky did not

assign a specific weight to the opinions of Drs. Schwab and Fabiano, he “failed to adequately tie

these limitations to anywhere in the record that supports” the RFC ([12-1], p. 24), or that the

limitations in the RFC “are not consistent with any opinion evidence of record” (id.). Even if the

ALJ erred by not assigning a specific weight to those opinions, I find that error was harmless

based upon this record.

The record included four medical opinions assessing plaintiff’s functional

limitations. ALJ Moldafsky “was entitled to choose between properly submitted medical

opinions and to consider other evidence of record in determining plaintiff’s RFC.” Eichelberger

v. Saul, 2019 WL 4072752, *3 (W.D.N.Y. 2019). Plaintiff does not dispute how ALJ Moldafsky

weighed the opinions of RPAC Miller and Dr. Tzetzo. Plaintiff’s Memorandum of Law [12-1],

pp. 17-24. Instead, although plaintiff acknowledges that ALJ Moldafsky assigned RPAC

Miller’s opinion “some” weight (id., pp. 22-23), plaintiff ignores this assessment throughout her

argument, instead insisting that there is “no way for this Court to engage in any meaningful

review of the RFC, as there is no way to determine why the ALJ arrived at this RFC and what he

based it on, besides his own lay interpretation of bare medical findings”. Id., p. 22.

However, as pointed out by the Commissioner, the RFC is supported by RPAC

Miller’s functional assessment, to which ALJ Moldafsky assigned “some” weight, and

incorporates restrictions that encompass the limitations identified by Drs. Schwab and Fabiano.

Commissioner’s Memorandum in Support [19-1], pp. 8-9. Plaintiff does not argue that RPAC

Miller’s functional assessment – or any other medical evidence in the record – supports a more

restrictive RFC. See id., p. 12. RPAC Miller opined that plaintiff was “moderately limited” in

the following areas of physical functioning: walking; standing; sitting; lifting, carrying; pushing,

pulling, bending; and stairs or other climbing. [6], p. 432. He also opined that she was

“moderately limited” in her ability to function in a work setting at a consistent pace. Id. Giving

“some” weight to this assessment, ALJ Moldafsky found that plaintiff had the RFC “to perform

light work” with additional restrictions.

Courts in this circuit have frequently held that a restriction to light work accounts

for moderate functional limitations. See White v. Berryhill, 725 Fed. App’x. 80, *81-82 (2d Cir.

2019) (Summary Order) (finding that substantial evidence supported and RFC “to perform a

modified version of light work” where the record contained a doctor’s opinion stating plaintiff

had “‘moderate limitations’ in standing, sitting, and performing other activities”); Glab v.

Commissioner, 2018 WL 3422062, *3-4 (W.D.N.Y. 2018) (ALJ’s conclusion that plaintiff “was

capable of performing light work was fully consistent” with doctor’s opinion that plaintiff had

“mild limitations in repetitive pushing, pulling, lifting, and carrying”); Amons v. Astrue, 617

F.Supp.2d 173, 176 (W.D.N.Y. 2009) (finding that substantial evidence supported ALJ’s

determination that plaintiff retained the RFC to perform a full range of light work with some

additional limitations where examining physician reports reflected “moderate limitations in

walking, standing, squatting, climbing and reaching”). Accordingly, RPAC Miller’s opinion that

plaintiff has moderate limitations in her ability to walk, stand, sit, lift, carry, push, pull, and

climb generally supports ALJ Moldafsky’s finding that plaintiff retains the RFC to perform light

work. See [6], p. 432.

Moreover, ALJ Moldafsky further limited some specific postural and functional

activities identified in RPAC Miller’s assessment. ALJ Moldafsky found that plaintiff could

“occasionally climb ramps and stairs”, “never climb ladders, ropes, or scaffolds”, and

“occasionally stoop, crouch and crawl”. Id., p. 19. These limitations correspond to RPAC

Miller’s report that plaintiff is moderately limited in her ability to climb stairs, to perform “other

climbing”, and bending. Id., p. 432. Given that the moderate limitations opined by RPAC Miller

are more significant than the mild limitations found by Dr. Schwab in plaintiff’s ability to bend,

lift, and carry heavy objects, the RFC also accounts for the limitations in Dr. Schwab’s report.

With respect to plaintiff’s mental limitations, RPAC Miller found plaintiff to be

“moderately limited” in her ability “to function in a work setting at a consistent pace”. Id, p.

432. ALJ Moldafsky incorporated this opinion into the RFC, which limited plaintiff to “a work

environment that is not fast paced or has strict production quotas”. Id., p. 20.

In addition, the RFC accounts Dr. Fabiano’s opinion that plaintiff has mild

limitations in her “ability to appropriately deal with stress” but no “evidence of limitations in her

ability to follow and understand simple directions and instructions” or to “perform simple tasks

independently”. Id., p. 269. ALJ Moldafsky incorporated into the RFC a limitation “to simple

(as defined in the DOT as SVP levels 1 and 2), routine, repetitive tasks” and to “jobs where

changes in work setting or processes are no more than occasional”. Id., p. 20. Limitations to

simple, unskilled work at a non-production pace adequately account for up to moderate

limitations in an ability to deal with stress. See Greentaner v. Commissioner, 2020 WL 5814654,

*5 (W.D.N.Y. 2020) (limitation to “simple instructions and tasks without supervisory duties,

independent[] decision making, or strict production requirement” involving “only minimal

changes in work routine and processes” and “frequent interaction with supervisors, co-workers,

and the general public” adequately “accounted for Plaintiff’s mild limitations in his ability to

handle stress”); Cowley v. Berryhill, 312 F.Supp.3d 381, 384 (W.D.N.Y. 2018) (finding that an

RFC limiting plaintiff to “simple, unskilled tasks with no more than occasional changes in the

work setting and without an hourly, machine-driven assembly line production rate” accounted

for moderate limitation with respect to stress); Moxham v. Commissioner, 2018 WL 1175210, *9

(N.D.N.Y. 2018) (plaintiff “fails to illustrate” how RFC limitation to “simple tasks, simple

instructions, frequent interaction with supervisors, coworkers, and the public, and decisions on

simple work-related matters” “do not adequately account” for moderate-to-marked limitations in

dealing with stress); McIntyre v. Colvin, 758 F.3d 146, 151-52 (2d Cir. 2014) (limitation to

“simple, routine, low stress tasks” accounted for moderate limitations in maintaining

“concentration, persistence, and pace”). Accordingly, notwithstanding the ALJ’s failure to

assign a specific weight to Dr. Fabiano’s opinion, the ALJ nonetheless incorporated into the RFC

Dr. Fabiano’s finding that plaintiff had “some mild limitations in her ability appropriately deal

with stress”. [6], p. 269.

Moreover, even assuming that it was error for the ALJ to omit from his decision

an assignment of specific weight to the opinions of Drs. Schwab and Fabiano, I find that error

harmless here, where it appears the ALJ incorporated into his RFC all of the limitations

suggested by the opinions in the record, and the plaintiff has failed to identify any medical

evidence suggesting a more restrictive RFC is appropriate. Where remand, despite an error,

could lead only to the same conclusion, remand is not required. See Zabala v. Astrue, 595 F.3d

402, 409 (2d Cir. 2010) (“[r]emand is unnecessary, however, where application of the correct

legal standard could lead to only one conclusion”) (internal quotation and citation omitted).

C. Did ALJ Moldafsky Properly Assess Plaintiff’s Testimony?

I turn next to plaintiff’s argument that, in assessing her testimony concerning the

limiting effects of her symptoms, ALJ Moldafsky “improperly diminished” the weight he

assigned to her subjective complaints and symptoms, and otherwise erred in his assessment

because he “over-emphasized” her daily activities and improperly “mischaracterized the

evidence and relied upon the absence of evidence in doing so”. Plaintiff’s Memorandum of Law

[12-1], p. 24. In response, the Commissioner argues that ALJ Moldafsky properly supported his

assessment of plaintiff’s subjective symptoms by considering the relevant factors identified in 20

C.F.R. § 416.929(c)(3). I agree with the Commissioner.

“In evaluating a claimant’s credibility, the ALJ must follow a two-step process.

First, the ALJ must decide whether the claimant suffers from a medically determinable

impairment that could reasonably be expected to produce the symptoms alleged. Second, the

ALJ must consider the extent to which the claimant’s symptoms can reasonably be accepted as

consistent with the objective medical evidence and other evidence of record.” Wetzel v.

Berryhill, 783 Fed. App’x. 44, 47 (2d Cir. 2019) (Summary Order). “In addition to using all of

the evidence to evaluate the intensity, persistence, and limiting effects of an individual's

symptoms”, the Commissioner uses “the factors set forth in 20 CFR 404.1529(c)(3) and

416.929(c)(3)”5, including:

“1. Daily activities;

2. The location, duration, frequency, and intensity of pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any medication an individual

takes or has taken to alleviate pain or other symptoms;

5. Treatment, other than medication, an individual receives or has received for relief

of pain or other symptoms;

6. Any measures other than treatment an individual uses or has used to relieve pain

or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes

every hour, or sleeping on a board); and

7. Any other factors concerning an individual’s functional limitations and restrictions

due to pain or other symptoms.”

Social Security Ruling 16-3p Titles II & XVI: Evaluation of Symptoms in Disability Claims, *7-

8 (S.S.A. Oct. 25, 2017).

An ALJ is “not required to discuss every credibility factor individually”, so long

as “the decision is sufficient to allow this Court to determine the basis for the . . . credibility

determination”. Brylski v. Astrue, 2012 WL 1038622, *3 (W.D.N.Y. 2012). Where supported

by substantial evidence, an ALJ’s evaluation of a claimant’s credibility is entitled to “great

deference”. Colon v. Commissioner of Social Security, 2019 WL 4197785, *6 (W.D.N.Y.

2019).

5 SSR 16-3p was revised and republished on October 25, 2017 to, inter alia, “reflect the revised

regulations that became effective on March 27, 2017” and apply to “determinations and decisions” made

“on or after March 28, 2016”. SSR 16-3p, 2017 WL 5180304, *1, *5 n. 8. Here, plaintiff’s hearing

before ALJ Moldafsky was held on December 5, 2017 ([6], p. 31) and ALJ Moldafsky issued his decision

on May 10, 2018 (id, p. 12).

I do not agree that ALJ Moldafsky “over-emphasized” plaintiff’s daily activities

([12-1], p. 24), or that he relied upon her activities of daily living as evidence that plaintiff could

perform activities “commensurate with competitive work”(id., p. 26). ALJ Moldafsky made no

such finding. Instead, he stated that claimant’s statements concerning the “limiting effects” of

her symptoms were “not entirely consistent” with the medical and other evidence, which he

proceeded to outline in his decision. [6], pp. 21-24. ALJ Moldafsky then considered nearly all

of the factors outlined in 20 C.F.R. § 416.929(c)(3), including the activities of daily living that

plaintiff reported to her medical providers and examiners, and the observations her providers

made upon examination. Id. Activities of daily living are simply “another consideration that an

ALJ may properly weigh in making his or her credibility evaluation”. Colon, 2019 WL

4197785, *7.

Plaintiff next argues that ALJ Moldafsky’s rejection of plaintiff’s testimony

concerning the limiting effects of her symptoms is faulty because he “selectively read”

“conflicting evidence” and based his determination upon “factual errors in evaluating” the

medical evidence. Plaintiff’s Memorandum of Law [12-1], p. 27. The sole example plaintiff

gives of the ALJ’s supposed error is his use of the words “managed”, “controlled”, “stable” and

“normal” to describe some of the evidence “while discounting findings that showed the ongoing

severity of her impairments and the resulting difficulties she had, both physically and mentally”.

Id., p. 28. Aside from plaintiff’s own testimony, however, she identifies no “findings” or

“evidence” in the record that conflict with the ALJ’s RFC determination or that assess functional

limitations more consistent with plaintiff’s testimony concerning her limitations.

Further, I disagree that ALJ Moldafsky “mischaracterized . . . and selectively read

the evidence in order to support his conclusion that Plaintiff’s impairments were not as severe as

alleged”. Plaintiff’s Memorandum of Law [12-1], p. 28. Again, plaintiff points to no examples

in the medical evidence that support her allegation. Plaintiff may not use arguments concerning

an ALJ’s assessment of her reported symptoms to obtain a more favorable standard of review of

the sufficiency of the ALJ’s RFC determination. Pellam v. Astrue, 508 Fed. App’x. 87, 91 (2d

Cir. 2013) (Summary Order).

Plaintiff next complains that “the ALJ relied upon an absence of hospitalizations

or emergency visits for Plaintiff’s mental health impairments in finding that Plaintiff’s mental

health was normal during the relevant period”. Plaintiff’s Memorandum of Law [12-1], p. 28.

Plaintiff, however, mischaracterizes ALJ Moldafsky’s determination. In his decision, he stated

with respect to his analysis of plaintiff’s claims of disabling mental health symptoms, that “the

record shows significantly normal mental status exam findings during the period at issue,

consistent with the lack of hospitalizations or emergency visits”. [6], p. 24. ALJ Moldafsky did

not make a finding that plaintiff’s mental health was “normal”. In fact, he found that plaintiff’s

severe impairments included both depression and anxiety ([6], p. 18) and included non-exertional

limitations in the RFC to account for the effects of those impairments (id., pp. 20, 22-24).

Plaintiff fails to identify any mental exam finding inconsistent with ALJ Moldafsky’s statement

and, in any event, “[a] conservative pattern of treatment is an appropriate factor to consider in

assessing credibility”. Glab v. Commissioner, 2018 WL 3422062, *6 (W.D.N.Y. 2018).

Plaintiff’s final two arguments are similarly without merit. ALJ Moldafsky stated

that, “for the most part, the claimant’s physical impairments are controlled and stable with

compliance to medication”. [6], p. 23. While I agree with plaintiff that, in some cases,

“stabilization does not necessarily equate to improvement” ([12-1], p. 28), this is not a case, as

plaintiff suggests, where the ALJ plucked the word “stable” from medical records while ignoring

other findings and comments of a plaintiff’s medical providers suggesting more significant

functional impairments. See e.g. Kohler v. Astrue, 546 F.3d 260, 268 (2d Cir. 2008) (ALJ

ignored records rating claimant’s limitations in social functioning as “moderate”, and notes

concerning plaintiff’s manic episodes requiring hospitalization and plaintiff’s inability to

maintain a full-time job). Plaintiff does not identify any specific findings that ALJ Moldafsky

overlooked. Instead, ALJ Moldafsky supported his interpretation of plaintiff’s condition as

“stable” by pointing to physical examinations showing mostly full range of motion and 5/5

strength in her extremities, while acknowledging the positive findings noted in the record. [6],

pp. 21-24.

Finally, plaintiff complains that ALJ Moldafsky “failed to adequately consider the

fact that Plaintiff was taking potent medications during the relevant period”. Plaintiff’s

Memorandum of Law [12-1], p. 29. However, ALJ Moldafsky’s opinion demonstrates that he

both acknowledged and considered plaintiff’s medications when he considered the plaintiff’s

testimony concerning her symptoms. See [6], pp. 20 (outlining plaintiff’s testimony concerning

her medications and side effects); 21 (discussing Dr. Schwab’s September 2015 report, which

included plaintiff’s then-current medications (id., p. 259)); 22 (acknowledging plaintiff’s referral

to “neuromedicine pain management” and discussing RPAC Miller’s November 2017 treatment

record, which included a list of plaintiff’s then-current medications (id., pp. 489-90)); 23

(discussing plaintiff’s use of medications). I agree with the Commissioner that, on this record,

ALJ Moldafsky demonstrated that he considered the effect of plaintiff’s medications in his

analysis of plaintiff’s testimony concerning her symptoms, and elsewhere in his decision.

Because ALJ Moldafsky’s rationale for his credibility determination was readily discernible and

supported by substantial evidence, I find no basis to warrant remand.

CONCLUSION

For these reasons, the Commissioner’s motion for judgment on the pleadings [19]

is granted, and plaintiff’s motion [12] is denied.

SO ORDERED.

Dated: December 16, 2020

/s/ Jeremiah J. McCarthy

JEREMIAH J. MCCARTHY

United States Magistrate Judge