Shelp v. Commissioner of Social Security

W ESTERN DISTRICT OF NEW YORK

ASHLEY S.1,

Plaintiff,

v.

19-CV-1033

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

DECISION AND ORDER

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

undersigned conduct any and all further proceedings in this case, including entry of final

judgment. Dkt. No. 15. Ashley S. (“Plaintiff”), who is represented by counsel, brings this

action pursuant to the Social Security Act (“the Act”) seeking review of the final decision of

the Commissioner of Social Security (“the Commissioner”) denying her application for

benefits. This Court has jurisdiction over the matter pursuant to 42 U.S.C.

§ 405(g). Presently before the Court are the parties’ competing motions for judgment on

the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt. Nos. 7,

13. For the following reasons, Plaintiff’s motion (Dkt. No. 7) is denied, and the

Commissioner’s motion (Dkt. No. 13) is granted.

BACKGROUND

On November 4, 2015, Plaintiff filed for Supplemental Security Income

(“SSI”) and Disability Insurance Benefits (“DIB”), alleging disability beginning on February

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

of the Judicial Conference of the United States, which the Western District of New York adopted in

November 2020 to better protect personal and medical information of non-governmental parties,

Tr. at 149, 274-75, 276-84, 319.2 Plaintiff’s application was denied at the initial level and

she requested review. Tr. at 155-58, 171-72. Administrative Law Judge Marilyn D. Zahn

(“the ALJ”) conducted two hearings relating to Plaintiff’s alleged disability, one on January

5, 2018, and a second on August 3, 2018. Tr. at 15. Plaintiff, who was represented by an

attorney, testified at the first hearing, as did her boyfriend and an impartial vocational

expert (“VE”). Tr. at 15, 41-96. An independent medical expert (“ME”), Dr. Mark Stevens,

and a second impartial vocational expert testified at the second hearing. Tr. at 15, 97-122.

On March 12, 2019, the ALJ issued a decision in which she found that if Plaintiff stopped

using substances, she would not be disabled, and, therefore, she was not eligible for

benefits. Tr. at 15-32. The Appeals Council denied Plaintiff’s request for review, making

the ALJ’s determination the final decision of the Commissioner. Tr. at 1-5. Plaintiff

thereafter commenced this action seeking review of the Commissioner’s decision. Dkt.

No. 1.

LEGAL STANDARD

Determining Whether a Claimant is Entitled to DIB and SSI

The Commissioner shall not authorize DIB unless a claimant proves that she

is disabled under the Act. To prevail on a claim for DIB, a claimant must provide medical

and other evidence to establish that she became disabled before expiration of her Title II

insured status. See generally 42 U.S.C. § 423. Evidence of an impairment which reached

2Citations to “Tr. __” refer to the pages of the administrative transcript, which appears at Docket

No. 4. A supplemental transcript (“Supp. Tr.”) appears at Docket No. 5.

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exacerbated after such expiration, “cannot be the basis for entitlement to a period

of disability and disability insurance benefits, even though the impairment itself may have

existed before the claimant’s insured status expired.” Davis v. Colvin, No. 6:14-CV-06373

(MAT), 2016 WL 368009, at *2 (W.D.N.Y. Feb. 1, 2016) (citing Arnone v. Bowen, 882 F.2d

34, 37-38 (2d Cir. 1989)) (“A ‘period of disability’ can only commence, however, while an

applicant is ‘fully insured.’... [R]egardless of the seriousness of his present disability,

unless [the claimant] became disabled before [the date last insured], he cannot be entitled

to benefits.”) (internal citations omitted)). Moreover, a claimant must show through

objective medical evidence that she became disabled prior to the expiration of insured

status; she cannot sustain her burden of proof solely by means of conclusory, self-serving

testimony that she was disabled at the crucial time. Gonzalez v. Schweiker, 540 F. Supp.

1256, 1258 (E.D.N.Y. 1982); Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y.

1977).

There is no parallel insured status requirement for SSI. To receive SSI under

the Act, a claimant must establish through medical evidence that she was unable “to

engage in any substantial gainful activity by reason of any medically determinable physical

or mental impairment which can be expected to last for a continuous period of not less

than 12 months.” 42 U.S.C. §§ 1382c(a)(3)(A), (a)(3)(H)(i). For both DIB and SSI claims,

the evidence must show that the claimant is unable to work due to a physical or mental

impairment resulting from “anatomical, physiological, or psychological abnormalities which

are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”

42 U.S.C. § 423(d)(5)(A). Such impairments must be expected to result in death or have

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Id.; 20 C.F.R. §§ 404.1509, 416.909. The claimant’s impairments must also be so severe

that she is unable to do her past work or any other substantial gainful work existing in

significant numbers in the national economy based on her age, education, and work

experience. 42 U.S.C. § 423(d)(2)(A).

According to the Act, “[a]n individual shall not be considered to be disabled

for purposes of this subchapter if alcoholism or drug addiction would (but for this

subparagraph) be a contributing factor material to the Commissioner’s determination that

the individual is disabled.” 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J). Drug addiction or

alcoholism is “material” if the individual would not be found disabled if she stopped using

alcohol or drugs. See 20 C.F.R. §§ 404.1535(b)(1), 416.935(b)(1).

The Commissioner determines disability using a five-step sequential

evaluation process. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 404.1527(d)(1),

416.927(d)(1). The burden of showing that the claimant can perform other work existing in

significant numbers in the national economy is on the Commissioner; however, the burden

of proving disability is always on the claimant. 20 C.F.R. §§ 404.1520, 416.920; Bowen v.

Yuckert, 482 U.S. 137, 147 (1987); Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015)

(“The claimant bears the ultimate burden of proving [disability] throughout the period for

which benefits are sought.”) (citation omitted).

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42 U.S.C. § 405(g) authorizes a district court “to enter, upon the pleadings

and transcript of the record, a judgment affirming, modifying, or reversing the decision of

the Commissioner of Social Security, with or without remanding the cause for a rehearing.”

42 U.S.C. § 405(g) (2007). Section 405(g) limits the scope of the Court’s review to two

inquiries: whether the Commissioner’s conclusions were based upon an erroneous legal

standard, and whether the Commissioner’s findings were supported by substantial

evidence in the record as a whole. See Green-Younger v. Barnhart, 335 F.3d 99, 105-106

(2d Cir. 2003). Substantial evidence is “more than a mere scintilla.” Moran v. Astrue, 569

F.3d 108, 112 (2d Cir. 2009). “It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Id. (emphasis added and citation

omitted). The substantial evidence standard of review is a very deferential standard, even

more so than the “clearly erroneous” standard. Brault v. Comm’r of Soc. Sec., 683 F.3d

443, 447-48 (2d Cir. 2012) (citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)).

When determining whether the Commissioner’s findings are supported by

substantial evidence, the Court’s task is “‘to examine the entire record, including

contradictory evidence and evidence from which conflicting inferences can be drawn.’”

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d

1033, 1038 (2d Cir. 1983) (per curiam)). If there is substantial evidence for the ALJ’s

determination, the decision must be upheld, even if there is also substantial evidence for

the plaintiff’s position. See Perez v. Chater, 77 F.3d 41, 46-47 (2d Cir. 1996); Conlin ex

rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 384 (W.D.N.Y. 2015). Likewise, where the

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conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

DISCUSSION AND ANALYSIS

The ALJ’s Decision

The ALJ analyzed Plaintiff’s claims using the familiar five-step process.

Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008)

(detailing the five steps). The ALJ found that Plaintiff met the insured status requirements

of the Act through June 30, 2013. Tr. at 18. At step one, the ALJ found that Plaintiff has

not engaged in substantial gainful activity since February 1, 2013, the alleged onset date.

Tr. at 18. At step two, she found that Plaintiff had the following severe impairments:

cannabis use disorder, seizure disorder, opioid dependency disorder, depressive disorder,

sciatica, bilateral carpal tunnel syndrome – mild, asthma, and COPD. Tr. at 19.3

At step three, the ALJ concluded that Plaintiff’s impairments did not, either

individually or in combination, meet or equal the Listings, giving special consideration to

Listing 1.04 (Disorders of the Spine), Listing 3.02 (Chronic Respiratory Disorders), Listing

3.03 (Asthma), Listing 12.04 (Depressive, Bipolar and Related Disorders), and Listing

12.06 (Anxiety and Obsessive-Compulsive Disorders). Tr. at 19-20. The ALJ found,

based on the entire record and the VE’s and ME’s testimony, that given her substance

3 This Court presumes the parties’ familiarity with Plaintiff’s medical history, which is detailed at

length in the papers.

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economy that she could perform. Tr. at 21-23.

The ALJ went on to assess Plaintiff’s RFC if she stopped using drugs.

She concluded that Plaintiff would continue to have severe impairments, but those

impairments or combination of impairments would not meet or medically equal a Listed

impairment. Tr. at 23. The ALJ found that if Plaintiff stopped using opioids, she would

have the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and

416.967(b), except she can lift and carry frequently twenty pounds, but nothing over twenty

pounds; she can perform frequent but not constant handling, fingering, and feeling; she

cannot climb ladders; she cannot be exposed to unprotected heights and cannot climb

scaffolds; she can occasionally climb steps, balance, and crawl; she can be exposed only

occasionally to cold environments, dust, and odors; she cannot operate motor vehicles;

and she can engage in simple, routine work. Tr. at 25-30.

Continuing to the fourth step, the ALJ found that if Plaintiff stopped using

drugs, there would be a significant number of jobs in the national economy that the

claimant could perform, including the jobs of fast food worker (DOT 311.472-0100), and

deli clerk (DOT 316.684-014). Tr. at 31. Because Plaintiff would not be disabled if she

stopped using substances, the ALJ concluded, her substance use disorder was a

contributing factor material to the determination of disability. Tr. at 31. Therefore, she was

not under a disability at any time from the alleged onset date through the date of the

decision. Tr. at 31.

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As noted above, the parties have cross-moved for judgment on the

pleadings. Dkt. Nos. 7, 13. Plaintiff argues that the ALJ erroneously rejected a letter from

Plaintiff’s Licensed Mental Health Counselor, Paul Cartone, pursuant to the five day rule,

Dkt. No. 7-1, pp. 18-23, and failed to provide good reasons for rejecting the opinion of

Francis Ilozue, MD, Plaintiff’s treating physician, Dkt. No. 7-1, pp. 23-29. The

Commissioner argues that the ALJ properly rejected Mr. Cartone’s letter, and gave

legitimate reasons for rejecting Dr. Iloszue’s opinion. Dkt. No. 13-1, pp. 16-25. Having

reviewed the record in its entirety, this Court finds that the ALJ did not err and that the RFC

is substantially supported.

Five Day Rule

A claimant must “make every effort to ensure that the [ALJ] receives all of the

evidence” in support of his or her claim “no later than 5 business days before the date of

the scheduled hearing.” 20 C.F.R. §§ 404.935(a), 416.1435(a). This is referred to as the

five day rule. If the claimant does not comply with the five day rule, the ALJ may refuse to

consider the evidence unless an “unusual, unexpected, or unavoidable circumstance

beyond [the claimant’s] control” prevented her from notifying the ALJ about the evidence or

submitting it. 20 C.F.R. §§ 404.935(b)(3), 416.1435(b)(3). A claimant may avail herself of

this exception if she “actively and diligently” sought evidence, but did not receive it until

less than five business days before the hearing. See 20 C.F.R.§ 416.1435(b)(3)(iv).

8

January 5, 2018, and August 3, 2018. Tr. at 15. On July 5, 2018, approximately one

month before the second hearing, Plaintiff informed the ALJ that she was requesting

“records” from certain providers. Tr. at 395-96. One day before the second hearing,

August 2, 2018, Plaintiff submitted a statement from Mr. Cartone, her counselor. Tr. at

1863. Supp. Tr. at 1863.4 The statement, dated July 31, 2018, is a one-page summary of

treatment that concludes by stating Plaintiff “would be unable to work part time or full time.”

Supp. Tr. at 1863.

The ALJ declined to consider the late submitted evidence, reasoning that:

At the hearing, the representative stated that the letter had just been written

(it is dated July 31st); however, he offered no explanation as to why the letter

could not have been written prior to the deadline as it was generally a

summary of the claimant’s treatment and condition. The representative, who

had been afforded ample time to submit treatment records in a timely

manner, had not provided the Administrative Law Judge . . . a reasonable

explanation of why this statement was not written and submitted timely.

Moreover, no medical records to support Mr. Cartone’s conclusions

accompanied the statement. Finally, the representative’s letter of July 5

referenced records that had been requested; Mr. Cartone’s statement is not

in the nature of a medical treatment note but was prepared for this litigation

and did not exist on July 5, when the representative sent his letter to this

office noting outstanding records. For all of the foregoing reasons, I do not

admit this evidence. The undersigned has reviewed Mr. Cartone’s treatment

notes in the record, and the rest of the medical evidence in the record, which

are, in any event, better evidence of the claimant’s conditions.

Tr. at 16.

4 As previously noted, the Supplemental Transcript appears at Docket No. 5.

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because it was drafted on July 31. This argument is unavailing. As the ALJ noted in her

decision and at the hearing, Mr. Cartone clearly wrote the summary at Plaintiff’s request.

Tr. 15-16, 121. If Plaintiff’s attorney had requested the opinion in a timely manner, Mr.

Cartone would have provided it earlier. Tr. at 121 (“[I]f you wanted to get that letter before

July 31st, you could have gotten it before then.”)). Plaintiff has not shown that she

“actively and diligently” pursued the assessment from Mr. Cartone, but was unable to

obtain it due to an “unusual, unexpected, or unavoidable circumstance.” Thus, it was

appropriate for the ALJ to exclude the evidence under the five day rule. See 20 C.F.R. §§

404.935(b); 416.1435(b).

The fact that Mr. Cartone drafted the statement within the five days prior to

the hearing does not justify making an exception to the exclusionary rule. The statement

was prepared at Plaintiff’s request, which was apparently belated. Plaintiff’s representative

failed to offer any evidence as to when she requested Mr. Cartone’s assessment and what

steps she took to get it in advance of the hearing. It would completely erode the purpose

of the five day rule to require an ALJ to accept late records without regard to whether a

claimant diligently attempted to submit the records in a timely manner.

Also unavailing is Plaintiff’s argument that the statement should be

admitted because she provided prior notice that she was seeking existing records from

various providers, including Mr. Cartone. As the ALJ noted, Mr. Cartone’s statement did

not exist at the time of the notice, and is not itself a record, but a summary. Therefore, the

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Court finds the ALJ did not err in excluding the evidence under the five day rule.

Plaintiff makes the related argument that because Mr. Cartone’s statement

was not supported by any records, the ALJ was required to request them. Although an

ALJ has an affirmative duty to develop the record when “obvious gaps” exist, no such gaps

exist in this case. See Petrie v. Astrue, 412 F. App’x 401, 406 (2d Cir. 2011) (internal

quotation marks omitted). Mr. Cartone’s belated opinion that Plaintiff was “unable to work”

was based on past trauma in Plaintiff’s life, which he summarized in his one-page

statement. Tr. at 1863. The fact that it was not supported by records does not mean that

Plaintiff’s mental treatment history had “gaps.” To the contrary, the record contained

ample evidence regarding Plaintiff’s mental abilities and limitations, including:

Mr. Cartone’s treatment notes, detailing the anger Plaintiff’s family had towards her for

bringing a personal injury action against her uncle, her efforts to regain custody of her

daughter, and her feeling “tired of going to the methadone clinic” (Tr. at 1522-26);

the treatment records of Ms. Kristy Herbert, Plaintiff’s substance-abuse counselor,

reporting that Plaintiff’s methadone was stable, she feels no triggers, she denies being

depressed, despite an open Child Protective Services case, and that she does not

experience seizures when she is not “using,” and detailing several events Plaintiff attended

including a funeral in New York City, her brother’s wedding, a vacation to West Virginia,

and a cruise with her boyfriend (Tr. at 28, 1429, 1430, 1432, 1433, 1434, 1436-37,1439,

1441, 1444-45, 1448, 1449, 1454, 1457, 1460, 1462, 1463, 1466, 1469, 1470, 1473, 1478,

1487, 1490, 1491, 1494, 1496, 1498, 1503, 1505, 1506); and Dr. Gina Zali’s January 2016

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was responsive, and her manner of relating was fair (Tr. at 30, 753-57).

Plaintiff’s RFC

RFC represents the most the claimant can do despite her impairments. 20

C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). Although the RFC finding is within the province

of the ALJ, 20 C.F.R. §§ 404.1546(c), 416.946(c), the burden of proving disability is on

Plaintiff. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). An ALJ is not required to determine

RFC based on one particular medical opinion. See Wilson v. Colvin, No. 6:16-CV-06509-

MAT, 2017 WL 2821560, at *5 (W.D.N.Y. June 30, 2017) (“[T]he fact that an RFC

assessment does not correspond exactly to a medical expert’s opinion in the record does

not mean that the RFC assessment is ‘just made up.’”). Rather, RFC is based on all the

relevant evidence of record. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

In determining Plaintiff’s RFC, the ALJ observed that Plaintiff’s mental health

improved significantly when she stopped abusing drugs. Tr. at 26. Given Plaintiff’s history

of heroin addiction, the ALJ was required to determine what Plaintiff was capable of when

she was using drugs and when she was not. See 20 C.F.R. §§ 404.1535(b)(1),

416.935(b)(1). Plaintiff repeatedly told Ms. Herbert that she felt better when she stopped

using heroin, and that her past drug use interfered with her life and caused her to have

seizures. Tr. at 26, 1429, 1430, 1437, 1439, 1457, 1465, 1469, 1470, 1473, 1474, 1496,

1506. Plaintiff also told Ms. Herbert that she felt good when she was clean and did not

want to use drugs again. Tr. 26, 1429, 1430.

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which suggested that she was far less restricted than Mr. Cartone opined. Tr. at 26.

Plaintiff reported that on some days, she took care of her 8-year-old daughter, which

supports a finding of greater mental functionality than Plaintiff claims she has. Tr. at 26,

1411, 1465, 1506. Apparently, Plaintiff had the mental wherewithal to travel for vacations

to Florida and West Virginia, take a cruise, and attend her brother’s wedding and a funeral

in New York City. Tr. at 26, 56-57, 93, 1430, 1436, 1437, 1444-45. It was permissible for

the ALJ to consider Plaintiff’s daily life in assessing her RFC. 20 C.F.R. §§ 404.1529,

416.929; see Cruz v. Colvin, 278 F. Supp. 3d 694, 699 (W.D.N.Y. 2017); Poupore v.

Astrue, 566 F.3d 303, 307 (2d Cir. 2009).

Moreover, the objective evidence did not demonstrate that Plaintiff was

mentally incapacitated from work. Ms. Herbert reported that Plaintiff maintained eye

contact and was polite and cooperative. Tr. at 1433, 1465, 1466, 1469. Dr. Zali, the

consultative examiner, found that Plaintiff’s mood was very anxious, restless, and

tangential, but that she demonstrated adequate language, a euthymic mood, intact

attention and concentration, and average intellectual functioning. Tr. at 755. Dr. Zali

opined that Plaintiff was markedly limited at dealing with stress (Tr. at 756); moderately

limited at learning new tasks, performing complex tasks, making appropriate decisions,

and relating with others (Tr. 756); but only mildly limited at following simple instructions

and performing simple tasks (Tr. 756); and not limited at all in following a schedule or

maintaining attention and concentration (Tr. 756). The ALJ gave Dr. Zali’s opinion some

weight because Plaintiff was still using heroin during the timeframe of Dr. Zali’s

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what Plaintiff was capable of when she was not abusing drugs.

Dr. Zali herself acknowledged that Plaintiff’s symptoms were caused by

psychiatric problems and substance abuse issues. Tr. at 756. This supports the ALJ’s

logical conclusion that drug use compounded Plaintiff’s psychiatric problems. The ALJ

observed that later treatment records, reflecting a period when Plaintiff no longer abused

substances, showed improvement in her mental functioning. Tr. 30, 1429, 1430. Based

on the record in its entirety, the ALJ concluded that when sober, Plaintiff could perform

simple, routine work without being off-task for significant portions of the workday. Tr. 25,

30. The ALJ accounted for Plaintiff’s difficulties dealing with stress, learning new tasks,

and making decisions, by limiting her to simple and routine work, “as this type of work is

less stressful [because] it does not require learning new tasks or making decisions.” Tr. at

30.

Because the record contained adequate evidence to determine Plaintiff’s

mental limitations, the ALJ was not obligated to develop further evidence. See Petrie v.

Astrue, 412 F. App’x 401, 406 (2d Cir. 2011). This Court finds no error in the ALJ’s

rejection of Mr. Cartone’s belated statement, her treatment of the record, or her

conclusions regarding Plaintiff’s mental abilities when she was not using drugs.

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On October 30, 2017, Plaintiff’s primary care physician, Dr. Ilozue, reported

to the New York Office of Temporary Disability that Plaintiff was very limited in her ability to

stand, sit, lift, carry, push and pull, and maintain attention, and moderately limited in her

ability to walk and carry out instructions. Tr. at 29, 1649-50. The form consisted of two

pages of check-the-box questions. Tr. at 1649-50. The ALJ found “this evidence has no

probative value because the doctor has not supported it [with] any objective evidence.” Tr.

at 29. Plaintiff argues that this case should be remanded because the ALJ failed to

provide “good reasons” for rejecting the opinion of Plaintiff’s treating physician. This Court

does not agree.

At the time the ALJ decided Plaintiff’s claim, she was required to evaluate

medical opinions based on several factors. See 20 C.F.R. §§ 404.1527(c), 416.927(c)

(detailing how the Commissioner evaluates opinion evidence for claims filed before March

27, 2017). When an ALJ decides not to give controlling weight to a physician’s opinion, he

or she must consider whether the medical source examined the claimant; whether the

medical source was a treating source; the extent of the treatment relationship; how well the

medical source supported his opinion with relevant evidence; how consistent the opinion

was with the record as a whole; whether the medical source was a specialist; and any

other factors that supported or contradicted the opinion. See 20 C.F.R. §§ 404.1527(c),

416.927(c). The ALJ must provide good reasons for the weight given to the opinion. Id.

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migraines, depression, back pain, and other conditions that resulted in significant physical

and mental limitations, as detailed above. Tr. at 1649-50. The ALJ recognized that

Dr. Ilozue was Plaintiff’s primary-care physician, but found that her “checklist-style form

includes only conclusions without any rationale for those conclusions.” Tr. at 29.

Dr. Ilozue’s bare conclusions were of little probative value to the ALJ “because the doctor

had not supported it [with] any objective evidence.” Tr. at 29. The ALJ was not erroneous

in her reasoning. See Camille v. Colvin, 104 F. Supp. 3d 329, 341 (W.D.N.Y. 2015)

(reasoning that opinions that are essentially “form reports composed of checklists and fill-

in-the-blank statements,” are “by their nature, of limited evidentiary value”), aff’d, 652 F.

App’x 25 (2d Cir. 2016); 20 C.F.R. § 416.927(c)(3) (“The more a medical source presents

relevant evidence to support a medical opinion, particularly medical signs and laboratory

findings, the more weight we will give that medical opinion.”).

Significantly, the ALJ did not merely reject Dr. Ilozue’s opinion without further

inquiry but twice asked the doctor to provide information in support of her conclusions. In

July 2018, the ALJ asked Dr. Ilozue a series of questions to clarify her conclusions, and

requested all treatment records from November 2017 to the date of inquiry. Tr. at 1780-

86. Dr. Ilozue did not respond. The ALJ resent her questions in August 2018, again

receiving no response. Tr. at 29, 1828-33.

Because Dr. Ilozue’s opinion lacked objective evidence and the doctor failed

to respond to the ALJ’s requests for more information, the ALJ did not give it controlling

weight. Plaintiff argues that the ALJ erred in relying instead on the opinion of Dr. Stevens,

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opinions of non-examining sources are generally given less weight than examining

sources, this is not an absolute rule. In appropriate cases, a non-examining medical

expert may override an examining source, even a treating source, if the opinion is

supported by evidence in the record. See Camille v. Colvin, 652 F. App’x 25, 28 (2d Cir.

2016); Snyder v. Colvin, 667 F. App’x 319, 320 (2d Cir. 2016); Monette v. Colvin, 654 F.

App’x 516, 518-19 (2d Cir. 2016).

Dr. Stevens examined all evidence in the record, spanning the time from

when Plaintiff was using heroin and after she stopped. He testified that Plaintiff’s medical

conditions included back, leg, and wrist impairments, and cited to the medical evidence

indicating that although the impairments were present, they were not debilitating. Tr. at

103-04. For example, Dr. Stevens noted that an October 2017 MRI of Plaintiff’s lumbar

spine showed minimal foramina stenosis and some nerve-root encroachment, but that

other objective findings were normal (Tr. 104-05, 1683), and that EMG testing showed mild

carpal-tunnel syndrome in Plaintiff’s wrists (Tr. 107, 1794). He opined that Plaintiff’s back

impairment would prevent her from lifting and carrying over 20 pounds, and her carpal-

tunnel symptoms warranted a limitation to frequent handling, fingering, and feeling. Tr. at

107. Dr. Stevens also assessed environmental limitations based on Plaintiff’s history of

seizures and asthma. Tr. at 107.

The ALJ gave Dr. Stevens’s opinion “great weight” because it was based on

all evidence and was supported by the record, including the January 2016 consultative

evaluation by Dr. Hongbiao Liu. Tr. 30, 746-50. Dr. Liu’s examination findings were

17

spine, but retained full range of motion and strength in her arms and legs with intact hand

and finger dexterity. Tr. at 748-49. Similar to Dr. Stevens, Dr. Liu concluded that Plaintiff

had mild-to-moderate limitations for prolonged walking, bending, and kneeling, and had to

avoid environmental irritants and hazards due to asthma and her history of seizures. Tr. at

749.

This Court finds that the ALJ’s reliance on Dr. Stevens’ opinion over that of

Dr. Ilozue was not erroneous. The mere fact that Dr. Stevens was not a treating physician

did not preclude the ALJ from crediting his opinion, because his opinion was consistent

with the objective medical evidence. See Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d

Cir. 1983) (“It is an accepted principle that the opinion of a treating physician is not binding

if it is contradicted by substantial evidence, . . . , and the report of a consultative physician

may constitute such evidence.”); Petrie v. Astrue, 412 F. App’x 401, 405-06 (2d Cir. 2011)

(holding that the ALJ rightly concluded that the two consultative psychologists’ opinions

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).

In addition to Dr. Stevens’ opinion, the ALJ relied on considerable evidence

that Plaintiff’s seizures were exacerbated by her drug use. Tr. at 27, 28, 644, 652, 1485,

1503. In February of 2018, well into her sobriety, Plaintiff reported to the neurologic

consultant, Dr. Michael Battaglia, that she had been seizure-free for months. Tr. at 33,

1791. The ALJ noted that Dr. Battaglia recommended conservative treatment for Plaintiff’s

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surgery. Tr. at 28, 1795. This was buttressed by relatively unremarkable objective

findings by numerous examiners. Tr. at 26, 421, 485, 653, 683, 748-49, 1082, 1299, 1792.

The ALJ also reasoned that Plaintiff’s cigarette use tended to undercut the seriousness of

her asthma complaints. Tr. at 33, 54, 747, 1081.

The Court finds no error in the ALJ’s analysis. “While conservative treatment

alone is not grounds for an adverse credibility finding,” see Burgess v. Astrue, 537 F.3d

117, 129 (2d Cir. 2008), “the ALJ may take it into account along with other factors.” Rivera

v. Comm'r of Soc. Sec., 368 F. Supp. 3d 626, 646-47 (S.D.N.Y. 2019), appeal dismissed

(May 31, 2019); see also Penfield v. Colvin, 563 F. App’x 839, 840 (2d Cir. 2014) (the ALJ

was permitted to weigh the claimant’s “conservative treatment” regimen in assessing her

credibility); Dixon v. Berryhill, 2017 WL 3172849, at *16 n.33 (S.D.N.Y. July 26, 2017)

(“Courts in this Circuit routinely uphold credibility determinations in which the ALJ finds a

claimant’s statements about their symptoms not credible based, inter alia, on a

conservative treatment record.”) (citations and quotation marks omitted) (collecting cases).

An ALJ may rely on mild or unremarkable diagnostic or clinical evidence to

support a finding of not disabled when it is consistent with other evidence in the record.

See Corbiere v. Berryhill, 760 F. App’x 54, 56-57 (2d Cir. 2019) (affirming a finding of not

disabled where the ALJ relied upon an MRI showing only mild or unremarkable findings

along with medical records from examining and non-examining physicians consistent with

those findings). Moreover, “[a] lack of supporting evidence on a matter for which the

claimant bears the burden of proof, particularly when coupled with other inconsistent

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Barry v. Colvin, 606 F. App’x 621, 622 (2d Cir. 2015); see also Dumas v. Schweiker, 712

F.2d 1545, 1553 (2d Cir. 1983) (“The [Commissioner] is entitled to rely not only on what

the record says, but also on what it does not say.”).

Based on the evidence as a whole, the ALJ found that Plaintiff had the

physical RFC to perform a range of light work. Tr. at 25; see 20 C.F.R. §§ 404.1567(b),

416.967(b) (defining light work). Consistent with Dr. Stevens’ testimony, the ALJ limited

Plaintiff to occasional climbing, balancing, and crawling with frequent (but not constant)

handling, fingering, and feeling. Tr. 25, 105-06. The ALJ also assigned environmental

limitations to account for seizures and asthma, consistent with Dr. Stevens’ and Dr. Liu’s

conclusions. Tr. at 25, 107, 749.

It is the ALJ alone who determines the RFC based on the medical record. 20

C.F.R. § 416.946(c). The law is clear that an ALJ’s RFC finding does not need to be

based on a particular medical opinion or medical source statement. Monroe v. Berryhill,

676 F. App’x 5, 9 (2d Cir. 2017); see also Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir.

2013) (reasoning that “[a]lthough the ALJ’s conclusion may not perfectly correspond with

any of the opinions of medical sources cited in h[er] decision, [s]he was entitled to weigh

all of the evidence available to make an RFC finding that was consistent with the record as

a whole”). Plaintiff clearly disagrees with the ALJ’s evaluation of the evidence.

However, 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). That is, “once

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factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (emphasis

added). This case does not present such a situation. For all of the foregoing reasons, this

Court finds that the ALJ’s decision is free from legal error and is supported by substantial

evidence.

CONCLUSION

For the reasons stated herein, Plaintiff’s motion for judgment on the

pleadings (Dkt. No. 7) is hereby DENIED, and the Commissioner’s motion for

judgment on the pleadings (Dkt. No. 13) is GRANTED. The Clerk of the Court is directed

to close this case.

SO ORDERED.

DATED: Buffalo, New York

February 26, 2021

s/ H. Kenneth Schroeder, Jr.

H. KENNETH SCHROEDER, JR.

United States Magistrate Judge

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