Waugaman v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

DEBORAH W.,

DECISION

Plaintiff, and

v. ORDER

ANDREW M. SAUL,1 Commissioner of 19-CV-01236F

Social Security, (consent)

Defendant.

______________________________________

APPEARANCES: LAW OFFICES OF KENNETH R. HILLER, PLLC

Attorneys for Plaintiff

KENNETH R. HILLER, and

JUSTIN DAVID JONES, of Counsel

6000 North Bailey Avenue, Suite 1A

Amherst, New York 14226

JAMES P. KENNEDY, JR.

UNITED STATES ATTORNEY

Attorney for Defendant

Federal Centre

138 Delaware Avenue

Buffalo, New York 14202

and

NAHID SOROOSHYARI

Special Assistant United States Attorney, of Counsel

Social Security Administration

Office of General Counsel

26 Federal Plaza, Room 3904

New York, New York 10278

JURISDICTION

On October 14, 2020, this matter was assigned to the undersigned before whom

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

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

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

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

accordance with this court’s June 29, 2018 Standing Order (Dkt. 14). The matter is

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

February 26, 2020 (Dkt. 12), and by Defendant on May 19, 2020 (Dkt. 16).

BACKGROUND

Plaintiff Deborah W. (“Plaintiff”), brings this action under Title II of the Social

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

the Commissioner of Social Security’s final decision denying Plaintiff’s application filed

on February 1, 2016 with the Social Security Administration (“SSA”), for Supplemental

Security Income (“SSI”) under Title XVI of the Act (“disability benefits”). Plaintiff alleges

she became disabled on September 9, 2014, based on asthma, a back condition,

hypertension, bipolar disorder, seizures, hepatitis C, heart condition described as

“blockage near heart,” lower back pain attributed to sciatic nerve damage in her back

since 2016, chronic pain that “shoots down legs,” joint pain and constant tiredness

attributed to rheumatoid arthritis since 2015, brain issues since 2015 including short

term memory and visual hallucinations, bipolar/depression/anxiety disorders causing

moods swings and anger, diabetes type 2, and high cholesterol. AR2 at 378, 391.

Plaintiff’s application initially was denied on May 19, 2016, AR at 278-89, and at

Plaintiff’s timely request, on April 18, 2018, a hearing was held in Buffalo, New York

before administrative law judge Carl E. Stephan (“the ALJ”). AR at 145-66

(“administrative hearing”). Appearing and testifying at the administrative hearing were

2 References to “AR” are to the CM/ECF-generated page numbers of the Administrative Record

electronically filed by Defendant on December 16, 2019 in nine parts (Dkts. 6 through 6-4 and 7 through

7-3).

Plaintiff, represented by Laura Henskee, Esq. (“Henskee”), and vocational expert Lisa

Atkinson (“the VE”). On September 27, 2018, the ALJ issued a decision denying

Plaintiff’s claim, AR at 32-63 (“ALJ’s Decision”), which Plaintiff timely appealed to the

Appeals Council. On July 15, 2019, the Appeals Council denied Plaintiff’s request for

review, AR at 1-7, rendering the ALJ’s Decision the Commissioner’s final decision. On

September 13, 2019, Plaintiff commenced the instant action in this court seeking judicial

review of the ALJ’s Decision.

On February 26, 2020, Plaintiff moved for judgment on the pleadings (Dkt. 12)

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

for Judgment on the Pleadings (Dkt. 12-1) (“Plaintiff’s Memorandum”). On May 19,

2020, Defendant moved for Judgment on the pleadings (Dkt. 16) (“Defendant’s

Motion”), attaching Commissioner’s Brief in Support of His Motion for Judgment on the

Pleadings and in Response to Plaintiff’s Brief Pursuant to Local Rule 5.5 (Dkt. 16-1)

(“Defendant’s Memorandum”). Filed on June 5, 2020 was Plaintiff’s Reply Brief to

Defendant’s Motion for Judgment on the Pleadings (Dkt. 17) (“Plaintiff’s Reply”). Oral

argument was deemed unnecessary.

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

GRANTED.

FACTS3

Plaintiff Deborah W. (“Plaintiff”), born May 13, 1974, was 40 years old as of

September 9, 2014, her alleged disability onset date (“DOD”), and 44 years old as of

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

determining the pending motions for judgment on the pleadings.

September 27, 2018, the date of the ALJ’s Decision. AR at 378, 391. As of the

administrative hearing, Plaintiff lived alone in a single-family house, was divorced with

three adult children, has an eighth-grade education,4 and had not completed any

specialized job training, trade, or vocational school. AR at 174, 395, 403, 1731. Plaintiff

maintains her impairments interfere with her ability to perform self-care and grooming,

and limits her activities of daily living to watching television, but Plaintiff prepares simple

meals for herself on a daily basis. AR at 403-05. Plaintiff maintains she cannot perform

house work or yard work, AR at 405, and does not go outside very often, but when she

does, she cannot go out alone and relies on a family member for transportation. AR at

406. Plaintiff shops for groceries in stores once a month, AR at 406, can count change,

but cannot pay bills or handle a savings account, id., and has no hobbies, interests, or

social activities. Id. at 407. Plaintiff last work briefly on an assembly line for a food

service company, AR at 395, and at a gas station. AR at 411.

It is undisputed that Plaintiff suffers from numerous physical and psychiatric

impairments including, inter alia, and most relevant here, a depressive disorder with

anxiety, asthma, diabetes, seizures, and rheumatoid arthritis. Plaintiff’s obtained mental

health treatment at Dent Neurologic Institute where her treating psychiatrist was Alfred

Belen, M.D. (“Dr. Belen”). AR at 912-23. With regard to her disability benefits

application, on April 28, 2016, Plaintiff underwent an internal medicine evaluation

performed by Donna Miller, D.O. (“Dr. Miller”), AR at 1725-29, and a psychiatric

evaluation performed by psychologist Janine Ippolito, Psy.D. (“Dr. Ippolito”), AR at

1730-35. Plaintiff’s medical record was also reviewed by non-examining psychiatric

4 Plaintiff also reports she graduated high school, where she was in special education classes because of

a learning disorder. AR at 1731.

medical expert Daryl DiDio, Ph.D., (“Dr. DiDio”), on July 7, 2018, AR at 6628-35.

Plaintiff received psychiatric counseling from mental health counselor Nyenya Tooles

(“M.H.C. Tooles”), from July 2017 until February 26, 2018. AR at 4327-34, 6048-52,

6065-91.

DISCUSSION

1. Standard and Scope of Judicial Review

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Supreme Court recently reaffirmed that the threshold for substantial evidence “is

not high . . . . It means – and means only – such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, __ U.S.

__; 139 S.Ct. 1148, at 1154 (2019) (internal citation and quotation marks omitted). As

such, the issue is not whether substantial evidence supports the claimant’s argument,

but “whether substantial evidence supports the ALJ’s decision.” Bonet ex rel. T.B. v.

Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013) (italics in original). “Under this ‘very

deferential standard of review,’ ‘once an ALJ finds facts, we can reject those facts only if

a reasonable factfinder would have to conclude otherwise.’” Id., 523 Fed.Appx. at 58-59

(quoting Brault v. Social Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (italics

in original).

2. Disability Determination

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

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

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

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

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

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

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

Commissioner of Social Security, effective March 31, 1995.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

performing PRW, disability benefits will be denied, id., but if the applicant is unable to

perform PRW relevant work, the Commissioner, at the fifth step, must consider whether,

given the applicant’s age, education, and past work experience, the applicant “retains a

residual functional capacity to perform alternative substantial gainful work which exists

in the national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation

marks and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of

proof is on the applicant for the first four steps, with the Commissioner bearing the

burden of proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4);

Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). If the claimant fails to meet the

criteria at either of the first two steps, the inquiry ceases and the claimant is not eligible

for disability benefits, but if the claimant meets the criteria for the third or fourth step, or

if the defendant fails to meet its burden at the fifth step, the inquiry ceases and the

claimant is eligible for disability benefits. Id.

In the instant case, the ALJ found Plaintiff has not engaged in substantial gainful

activity (“SGA”) since February 1, 2016, Plaintiff's application date id. at 37, and suffers

from the severe impairments of a back disorder, arthritis, asthma/chronic obstructive

pulmonary disease (“COPD”), with continued smoking against medical advice, history of

seizures, diabetes mellitus, obesity, anxiety, affective disorders, polysubstance abuse,

AR at 37, that Plaintiff's hypertension, high cholesterol, hepatitis C, and cataracts do not

cause more than a minimal limitations to Plaintiff’s ability to perform basic physical and

mental work-related functions and, as such, are not severe, and that Plaintiff’s asserted

calcium deficiency and heart disorder are not reflected in any of Plaintiff’s medical

records, nor do any records support Plaintiff’s claimed learning disorder, intellectual

deficiency, or cognitive disorder and, as such, these asserted disorders are not

medically determinable impairments. AR at 38-39. The ALJ then determined that

Plaintiff does not have an impairment or combination of impairments meeting or

medically equal to the severity of any listed impairment in 20 C.F.R. Part 404, Subpart

P, Appendix 1. Id. at 39-41. The ALJ further found that despite her impairments,

Plaintiff retains the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b),

except that Plaintiff can occasionally climb stairs and ramps, balance, kneel, crouch and

crawl, cannot climb ladders or scaffolds, cannot be exposed to unprotected heights or

dangerous machinery, extremes in temperature or humidity, or concentrated respiratory

irritants, can perform basic mental demands of work including being able to understand,

remember, and carry out simple instructions, perform simple, unskilled work with

frequent but not constant interactions with the public, co-workers, and supervisors, and

is able to respond to frequent changes in the work setting. AR at 41-55. The ALJ

further found that Plaintiff has no PRW, AR at 55, yet given Plaintiff’s RFC, age, limited

education, and ability to communicate in English, and based on the Medical-Vocational

Rules (“the Grids”), 20 C.F.R. Pt. 404, Subpt. P, App. 2, Plaintiff is not disabled and can

perform jobs that exist in significant numbers in the national economy. Id. at 55. Based

on these findings, the ALJ determined Plaintiff is not disabled as defined under the Act.

Id. at 56.

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

the five-step analysis, but argues that at the fourth step, the ALJ’s RFC assessment is

not supported by substantial evidence because the ALJ, while affording significant

weight to Dr. Ippolito’s consultative opinion, excluded that portion of Dr. Ippolito’s finding

that Plaintiff had a moderate limitation to stress and relating to others, Plaintiff’s

Memorandum at 27-31, improperly relied on the opinion of Dr. DiDio who did not

examine Plaintiff and whose statement that Plaintiff could keep to a schedule and relate

to peers, supervisors, and the public on a “regular,” but not “constant” basis is

impermissibly “vague,” id. at 31-34, and failed to afford proper weight to the findings of

M.H.C. Tooles. Id. at 34-40. Defendant argues the ALJ properly evaluated Dr.

Ippolito’s moderate limitation to stress by determining that Plaintiff was capable of

performing simple, unskilled work, and the source opinions of record by Plaintiff’s

treating sources, Defendant’s Memorandum at 7-11, reasonably weighed the opinions

of Dr. DiDio, id. at 11-14, and M.H.C. Tooles, id. at 14-17, and that substantial evidence

supports the ALJ’s RFC finding. Id. at 17-18. In reply, Plaintiff repeats her arguments

that the ALJ failed to reconcile the limitations pertaining to stress found by Dr. Ippolito

with the RFC determination, Plaintiff’s Reply at 1-3, Dr. DiDio’s opinion was

impermissibly vague, id. at 3, and the ALJ did not properly evaluate M.H.C. Tooles’s

opinion. Id. at 4. There is no merit to Plaintiff’s arguments.

Preliminarily, the court observes that Plaintiff limits her arguments to her mental

impairments and, accordingly, Plaintiff has waived any challenge to the ALJ’s Decision

based on any physical impairments. Cf. Glover v. Saul, 2020 WL 90768, at * 5

(W.D.N.Y. Jan. 8, 2020) (although the claimant asserted both mental and physical

impairments in applying for disability benefits, in considering the plaintiff’s action

challenging the ALJ’s decision, the court found the claim waived as to the mental

impairments because the plaintiff raised issues only with regard to his physical

impairments).

With regard to Plaintiff’s first argument, as relevant, on April 28, 2016, Dr. Ippolito

completed a consultative psychiatric evaluation of Plaintiff, and evaluated Plaintiff with

moderate limitations to relating adequately with others and appropriately dealing with

stress, mild limitations to understanding and performing simple tasks, maintaining a

regular schedule, attention and concentration, performing complex tasks independently,

and making appropriate decisions, opining that Plaintiff's limitations were not significant

enough to interfere with Plaintiff's ability to function on a daily basis. AR at 1731-34.

The ALJ afforded “significant weight” to Dr. Ippolito’s opinion based on Dr. Ippolito’s role

as an examining physician, and because Dr. Ippolito’s mild and moderate limitation

assessments are consistent with the treatment notes of record. AR at 52-53. This

determination by the ALJ is supported by substantial evidence in the record.

Specifically, as the ALJ found, AR at 53-54, Dr. Ippolito’s psychiatric evaluation

of Plaintiff was consistent with the opinion of medical expert and board certified

psychologist Dr. DiDio that Plaintiff had no limitations to understanding, remembering

and carrying out simple instructions, mild limitations to interacting appropriately with the

public, mild to moderate limitations to interacting with supervisors and coworkers,

responding appropriately to usual work situations and changes in a routine work setting,

moderate limitations to understanding, remembering and applying information for

complex tasks, interacting with others and mild limitations concentrating, persisting or

maintaining pace and adapting and managing herself. AR at 53-54 (citing AR 6628-42).

The ALJ further found that Dr. Ippolito’s opinion regarding Plaintiff's moderate limitation

to stress was also inconsistent with the opinion of Dr. Belen, Plaintiff’s treating

psychiatrist. AR at 48-49, 51 (citing AR at 912-23). As such, the ALJ acted within his

authority in relying on a portion of Dr. Ippolito’s findings while rejecting those portions of

the consultative psychologist’s assessment that are contradicted by the psychological

examination. See Heaman v. Berryhill, 765 Fed. Appx. 498, 500 (2d Cir. 2019) (ALJ

may choose between properly submitted medical opinions that include consultative

opinions); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (it is within the province

of the ALJ to resolve contradictions between the consultative examinations findings and

the consultative examiner’s conclusions). Plaintiff's motion on this issue is therefore

DENIED.

Nor is there any merit to Plaintiff’s argument that the ALJ improperly relied on the

opinion of Dr. DiDio who did not examine Plaintiff and rendered an opinion that was

impermissibly “vague.” Plaintiff’s Memorandum at 31-35. As Defendant argue,

Defendant’s Memorandum at 11-14, not only are ALJs permitted to “ask for and

consider opinions from medical experts on the nature and severity of [an individual’s]

impairment(s),” id. (quoting 20 C.F.R. § 416.927(e)(2)(iii) (bracketed material added),

but a non-examining consultative medical expert’s opinion may constitute substantial

evidence supporting the denial of disability benefits if supported by substantial evidence

in the record. Id. (citing Heaman v. Berryhill, 765 Fed.Appx. 498, 500 (2d Cir. 2019)

(holding substantial evidence, including the consultative non-examining medical expert’s

opinion and treatment notes contradicting the opinions of the plaintiff’s treating

physicians, supported the ALJ’s determination that the plaintiff was not disabled)). It is

significant that the relevant regulations require ALJs consider the opinions of state

agency consultants because they are highly qualified experts in Social Security

disability evaluations. 20 C.F.R. § 416.913a(b)(2), 416.927(c) and (e). Based on these

same criteria, the opinions of such non-examining sources can constitute substantial

evidence in support of an ALJ’s decision. Diaz v. Shalala, 59 F.3d 307, 313 n. 5 (2d Cir.

1995). Accordingly, the ALJ did not err in relying on Dr. DiDio’s opinion.

Moreover, Dr. DiDio’s opinion was not, as Plaintiff maintains, impermissibly

“vague.” As relevant here, on July 7, 2018, after reviewing Plaintiff’s medical record, Dr.

DiDio stated Plaintiff’s medical record “supports the opinion that entry level, simple

tasks can be performed. Attention, concentration & pace are adequate. The [Plaintiff]

can keep a schedule & can relate to peers/supervisors/public on a regular [sic]; however

not on a constant basis.” AR at 6635. Plaintiff maintains because it is not clear for how

long a period the word “regular” refers, the word “regular” is impermissibly vague such

that Dr. DiDio’s opinion does not constitute substantial evidence to support the ALJ’s

decision. Plaintiff’s Memorandum at 32-33. Plaintiff, however, ignores that in a

subsequent report on August 17, 2018, Dr. DiDio was asked to respond to the following,

would an individual with the ailments as presented in the medical evidence be

able to: perform simple tasks; keep adequate attention, concentration and pace;

maintain a consistent schedule; and relate to peers, supervisors, and the public

on a “sustained basis?” (Sustained Basis: ability to perform work-related

activities eight hours a day for five days a week, or an equivalent work schedule [

]). Please state whether such an individual could or could not perform the above

listed tasks, then cite evidence supporting your opinion.

AR at 6642.

Dr. DiDio’s response was, “Yes. The [Plaintiff] can perform simple tasks on a sustained

basis.” AR at 6642. In support of this opinion, Dr. DiDio stated the administrative

records “E section”6 “indicates & reflects [Plaintiff’s] abilities within the cognitive

domain.” Id. The ALJ further stated that administrative records exhibits 2F, 5F, 6F, 7F

and 9F (containing office treatment records from both mental and physical health

providers including, inter alia, treating psychiatrist Dr. Belen), “do not suggest significant

difficulties within the social domains which would contraindicate interaction with others

on any sustained basis.” AR at 6642. Accordingly, Plaintiff’s argument that Dr. DiDio’s

opinion, with respect to Plaintiff’s ability to work on a “regular basis” is impermissibly

6 Referencing the administrative record’s exhibits consisting of forms completed by Plaintiff in connection

with her disability benefits application including Plaintiff’s own description of her asserted impairments

and the impact of such impairments on Plaintiff’s activities of daily living, employment history, and

medications.

vague, even if true, is irrelevant in light of Dr. DiDio’s subsequent statement clarifying

that Plaintiff can work on a sustained basis, and, thus, fails to establish the ALJ’s

decision is not supported by substantial evidence in the record.

Also without merit is Plaintiff's argument, Plaintiff's Memorandum at 34-40, that

the ALJ erred in affording little weight to M.H.C. Tooles’s opinion. In this case, the ALJ

noted that M.H.C. Tooles, as a mental health counselor, does not qualify under the

relevant regulations as an acceptable medical source whose opinion is entitled to

controlling or significant weight, 20 C.F.R. § 404.1527(c), nor does the Plaintiff point to

the use by M.H.C. Tooles of clinically acceptable diagnostic techniques. AR at 53

(citing AR at 4327-34, 6048-52). Although “the ALJ is certainly free to consider the

opinion of [other medical sources] in making his overall assessment of a claimant’s

impairments and residual abilities, those opinions do not demand the same deference

as those of a treating physician,” or other acceptable source. Genier v. Astrue, 298

Fed.Appx. 105, 108 (2d Cir. 2008).

Moreover, the medical evidence in the record does not support the restrictions

assessed by M.H.C. Tooles. In particular, despite indicating Plaintiff was very limited in

nearly all aspects of mental functioning, AR at 4333, 6052, M.H.C. Tooles also indicated

she was unable to assess whether Plaintiff's mental impairment would last longer than

12 months, id., and, as the ALJ observed, Dr. Ippolito noted that Plaintiff reported being

disabled from physical impairments, not mental impairments. AR at 52 (citing AR at

1731). These findings are inconsistent with M.H.C. Tooles’s treatment notes in the

record. AR at 53 (citing AR at 4333 and 6052). Accordingly, the ALJ did not improperly

reject the opinion of M.H.C. Tooles.

To summarize, in the instant case, the evidence in the record establishes at most

that it is susceptible to more than one rational interpretation, including ALJ Romeo’s

decision that Plaintiff is not disabled under the Act. See McIntyre, 758 F.3d at 149 (“If

evidence is susceptible to more than one rational interpretation, the Commissioner’s

conclusion must be upheld.”); Bonet ex rel. T.B., 523 Fed.Appx. at 58-59 (“Under this

‘very deferential standard of review [applicable to actions challenging an administrative

decision on a disability benefits claim],’ ‘once an ALJ finds facts, we can reject those

facts only if a reasonable factfinder would have to conclude otherwise.’” (quoting Brault,

683 F.3d at 448 (italics in original)). Indeed, the issue is not whether substantial

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

the ALJ’s decision.” Bonet ex rel. T.B., 523 Fed.Appx. at 59 (italics in original). Despite

the possibility of an alternate interpretation, in this case, the record provides substantial

evidence to sustain the ALJ’s decision.

CONCLUSION

Based on the foregoing, Plaintiff’s Motion (Dkt. 12) is DENIED; Defendant’s

Motion (Dkt. 16) is GRANTED. The Clerk of Court is directed to close the file.

SO ORDERED.

/s/ Leslie G. Foschio

______________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

DATED: March 30th, 2021

Buffalo, New York