# Shulenburg v. Commissioner of Social Security

> District Court, W.D. New York · June 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10363800

## Case

- **Court:** District Court, W.D. New York
- **Decided:** June 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DANIELLE S., §
§
Plaintiff, §
§
v. § Case # 1:20-cv-1013-DB
§
COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION
§ AND ORDER
Defendant. §

INTRODUCTION

Plaintiff Danielle S. (“Plaintiff”) 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”), that denied her application for Disability Insurance Benefits (“DIB”) under
Title II of the Act, and her application for supplemental security income (“SSI”) under Title XVI
of the Act. See ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g),
1383(c), and the parties consented to proceed before the undersigned in accordance with a standing
order (see ECF No. 13).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). See ECF Nos. 10, 11. Plaintiff also filed a reply brief. See ECF No. 12. For the
reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 10) is
DENIED, and the Commissioner’s motion for judgment on the pleadings (ECF No. 11) is
GRANTED.
BACKGROUND
On May 5, 2017, Plaintiff protectively filed her applications for DIB and SSI, alleging
disability beginning March 26, 2013 (the disability onset date), due to arthritis, myotonia, chronic
back pain, spondylolysis, degenerative joint disease, depression, anxiety, migraines, chronic neck
pain, and GERD. Transcript (“Tr.”) 231-250, 263. Plaintiff’s claims were denied initially on
August 11, 2017, after which she requested an administrative hearing. Tr. 15. On June 4, 2019,
Administrative Law Judge Brian LeCours (the “ALJ”) held a hearing in Buffalo, New York. Tr.
15. Plaintiff appeared and testified at the hearing and was represented by Zachary Zabawa, an

attorney. Id. Margaret E. Heck, an impartial vocational expert (“VE”), also appeared and testified
at the hearing. Id.
The ALJ issued an unfavorable decision on June 14, 2019, finding that Plaintiff was not
disabled. Tr. 15-28. On June 4, 2020, the Appeals Council denied Plaintiff’s request for further
review. Tr. 1-3. The ALJ’s June 14, 2019 decision thus became the “final decision” of the
Commissioner subject to judicial review under 42 U.S.C. § 405(g).
LEGAL STANDARD
I. District Court Review
“In reviewing a final decision of the SSA, this 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) (citing 42 U.S.C. §
405(g)) (other citation omitted). The Act holds that the Commissioner’s decision is “conclusive”
if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (citations
omitted). It is not the Court’s function to “determine de novo whether [the claimant] is disabled.”
Schaal v. Apfel, 134 F. 3d 496, 501 (2d Cir. 1990).
II. The Sequential Evaluation Process
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is
disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful

work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ
proceeds to step two and determines whether the claimant has an impairment, or combination of
impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant
restrictions on the claimant’s ability to perform basic work activities. Id. § 404.1520(c). If the
claimant does not have a severe impairment or combination of impairments meeting the durational
requirements, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing

and meets the durational requirement, the claimant is disabled. Id. § 404.1509. If not, the ALJ
determines the claimant’s residual functional capacity, which is the ability to perform physical or
mental work activities on a sustained basis notwithstanding limitations for the collective
impairments. See id. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. Id. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the
Commissioner must present evidence to demonstrate that the claimant “retains a residual
functional capacity to perform alternative substantial gainful work which exists in the national
economy” in light of his or her age, education, and work experience. See Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

ADMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ analyzed Plaintiff’s claim for benefits under the process described above and
made the following findings in his June 14, 2019 decision:
1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2018;
2. The claimant has not engaged in substantial gainful activity since March 26, 2013, the
alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.);
3. The claimant has the following severe impairments: lumbar disc disease, cervical disc
disease, and sodium channel myotonia (20 CFR 404.1520(c) and 416.920(c));
4. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926);
5. The claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b),1 except the claimant can frequently balance, stoop,
kneel, and crouch. The claimant can occasionally crawl and climb ramps and stairs. The
claimant can never climb ladders and scaffolds. The claimant can occasionally reach
overhead (bilateral limitation) and can frequently handle (bilateral limitation). The
claimant should avoid loud noise, defined as Noise Intensity Level 4 or above. The
claimant should avoid hazardous conditions such as unprotected heights and dangerous
machinery. The claimant can occasionally drive;
6. The claimant is capable of performing past relevant work as a bank processor. This work
does not require the performance of work-related activities precluded by the claimant’s
residual functional capacity (20 CFR 404.1565 and 416.965);

1 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the
ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or she
can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.” 20 C.F.R. § 404.1567(b).
7. The claimant has not been under a disability, as defined in the Social Security Act, from
March 26, 2013, through the date of this decision (20 CFR 404.1520(1) and 116.920(1)).
Tr. 15-28.
Accordingly, the ALJ determined that, based on the application for a period of disability
and disability insurance benefits protectively filed on May 5, 2017, the claimant is not disabled
under sections 216(i) and 223(d) of the Social Security Act. Tr. 28. The ALJ also determined that
based on the application for supplemental security benefits protectively filed on May 5, 2017, the
claimant is not disabled under section 1614(a)(3)(A) of the Act. Id.
ANALYSIS
Plaintiff essentially asserts a single point of error challenging the ALJ’s evaluation of

treating source and other opinion evidence. See ECF No. 7-1 at 12-23. Specifically, Plaintiff takes
issue with the ALJ’s assessment of the May 2019 medical source statement of primary care
physician Nancy A. Ciavarri, M.D. (“Dr. Ciavarri”). See id. at 14-21. Plaintiff also argues that the
ALJ’s mental RFC finding is unsupported because it did not mirror the opinions of consultative
examiners Adam Brownfeld Ph.D. (“Dr. Brownfeld”) and Yu-Ying Lin, Ph.D. (“Dr. Lin”) and
was only supported by the state agency medical consultant’s opinion. See id. at 17-18.
Accordingly, Plaintiff argues, the ALJ substituted his own lay judgment for that of a medical
source and formulated an RFC that was not supported by substantial evidence. See id. at 19-20.
The Commissioner argues in response that the ALJ properly evaluated the medical
opinions in accordance with the applicable regulations. See ECF No. 11-1 at 21-30. With respect

to Dr. Ciavarri’s treating source opinion, the Commissioner argues that the applicable regulation
makes clear that, for claims filed on or after March 27, 2017, such as Plaintiff’s claim, no opinions,
including those from a treating source, are entitled to any deference or specific evidentiary weight.
See id. Further, argues the Commissioner, the ALJ’s consideration of the other opinions of record,
including the opinions of Drs. Brownfield and Lin, as well as the ALJ’s RFC finding generally,
were supported by substantial evidence. Id.
A Commissioner’s determination that a claimant is not disabled will be set aside when the
factual findings are not supported by “substantial evidence.” 42 U.S.C. § 405(g); see also Shaw v.

Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence has been interpreted to mean “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The
Court may also set aside the Commissioner’s decision when it is based upon legal error. Rosa, 168
F.3d at 77. Upon review of the record in this case, the Court finds that the ALJ carefully considered
the evidence of record, including the medical opinion evidence, the treatment notes, the objective
findings, and Plaintiff’s subjective complaints, and his RFC determination was supported by
substantial evidence.
A claimant’s RFC is the most she can still do despite her limitations and is assessed based
on an evaluation of all relevant evidence in the record. See 20 C.F.R. §§ 404.1520(e),
404.945(a)(1), (a)(3); SSR 96-8p, 61 Fed. Reg. 34,474-01 (July 2, 1996). At the hearing level, the

ALJ has the responsibility of assessing the claimant’s RFC. See 20 C.F.R. § 404.1546(c); SSR 96-
5p, 61 Fed. Reg. 34,471-01 (July 2, 1996); see also 20 C.F.R. § 404.1527(d)(2) (stating the
assessment of a claimant’s RFC is reserved for the Commissioner).
Determining a claimant’s RFC is an issue reserved to the Commissioner, not a medical
professional. See 20 C.F.R. § 416.927(d)(2) (indicating that “the final responsibility for deciding
these issues [including RFC] is reserved to the Commissioner”); Breinin v. Colvin, No. 5:14-CV-
01166(LEK TWD), 2015 WL 7749318, at *3 (N.D.N.Y. 2015), report and recommendation
adopted, 2015 WL 7738047 (N.D.N.Y. 2015) (“It is the ALJ’s job to determine a claimant’s RFC,
and not to simply agree with a physician’s opinion.”). The ALJ is ultimately tasked with reaching
an RFC assessment based on the record as a whole. 20 C.F.R. § 404.1527(d)(2) (“Although we
consider opinions from medical sources on issues such as . . . your residual functional capacity
. . . the final responsibility for deciding these issues is reserved to the Commissioner.”).
Effective for claims filed on or after March 27, 2017, the Social Security agency

comprehensively revised its regulations governing medical opinion evidence creating a new
regulatory framework. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82
Fed. Reg. 5844 (Jan. 18, 2017) (technical errors corrected by 82 Fed. Reg. 15, 132-01 (March 27,
2017). Several of these changes are relevant to Plaintiff’s argument.
First, the new regulations change how ALJs consider medical opinions and prior
administrative findings. The new regulations no longer use the term “treating source” and no
longer make medical opinions from treating sources eligible for controlling weight. Rather, the
new regulations instruct that, for claims filed on or after March 27, 2017, an ALJ cannot “defer or
give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or
prior administrative medical findings(s), including those from [the claimant’s own] medical

sources.” 20 C.F.R. § 416.920c(a) (2017).
Second, instead of assigning weight to medical opinions, as was required under the prior
regulations, under the new rubric, the ALJ considers the persuasiveness of a medical opinion (or a
prior administrative medical finding). Id. The source of the opinion is not the most important factor
in evaluating its persuasive value. 20 C.F.R. § 416.920c(b)(2). Rather, the most important factors
are supportability and consistency. Id.
Third, not only do the new regulations alter the definition of a medical opinion and the way
medical opinions are considered, but they also alter the way the ALJ discusses them in the text of
the decision. 20 C.F.R. § 416.920c(b)(2). After considering the relevant factors, the ALJ is not
required to explain how he or she considered each factor. Id. Instead, when articulating his or her
finding about whether an opinion is persuasive, the ALJ need only explain how he or she
considered the “most important factors” of supportability and consistency. Id. Further, where a
medical source provides multiple medical opinions, the ALJ need not address every medical

opinion from the same source; rather, the ALJ need only provide a “single analysis.” Id.
Fourth, the regulations governing claims filed on or after March 27, 2017 deem decisions
by other governmental agencies and nongovernmental entities, disability examiner findings, and
statements on issues reserved to the Commissioner (such as statements that a claimant is or is not
disabled) as evidence that “is inherently neither valuable nor persuasive to the issue of whether [a
claimant is] disabled.” 20 C.F.R. § 416.920b(c)(1)-(3) (2017). The regulations make clear that, for
claims filed on or after March 27, 2017, “we will not provide any analysis about how we
considered such evidence in our determination or decision” 20 C.F.R. § 416.920b(c).
Finally, Congress granted the Commissioner exceptionally broad rulemaking authority
under the Act to promulgate rules and regulations “necessary or appropriate to carry out” the

relevant statutory provisions and “to regulate and provide for the nature and extent of the proofs
and evidence” required to establish the right to benefits under the Act. 42 U.S.C. § 405(a); see also
42 U.S.C. § 1383(d)(1) (making the provisions of 42 U.S.C. § 405(a) applicable to title XVI); 42
U.S.C. § 902(a)(5) (“The Commissioner may prescribe such rules and regulations as the
Commissioner determines necessary or appropriate to carry out the functions of the
Administration.”); Barnhart v. Walton, 535 U.S. 212. 217-25 (2002) (deferring to the
Commissioner’s “considerable authority” to interpret the Act); Heckler v. Campbell, 461 U.S. 458,
466 (1983). Judicial review of regulations promulgated pursuant to 42 U.S.C. § 405(a) is narrow
and limited to determining whether they are arbitrary, capricious, or in excess of the
Commissioner’s authority. Brown v. Yuckert, 482 U.S. 137, 145 (1987) (citing Heckler v.
Campbell, 461 U.S. at 466).
Based on the applicable regulations discussed above, Dr. Ciavarri’s treating source opinion
is not entitled to any deference or specific evidentiary weight. See 20 C.F.R. §§ 404.1520c(a),

416.920c(a). Instead, the ALJ need only articulate how he considered a medical opinion from a
medical source by indicating how persuasive he considered a medical opinion to be. Id. at §§
404.1520c(b), 416.920c(b) (“The factors of supportability and consistency are the most important
factors we consider when we determine how persuasive we find a medical source’s medical
opinion . . . . Therefore, we will explain how we considered the supportablity and consistency
factors . . . .”) (internal citations omitted). Thus, an ALJ may, but is not required to, explain how
he considered factors other than consistency and supportability, as appropriate. Id. at §§
404.1520c(b)(2), 416.920c(b)(2).
Here, the ALJ considered the supportability and consistency of Dr. Ciavarri’s opinion that
Plaintiff could perform less than sedentary work with extreme function limitations; would require

unscheduled breaks every 20 minutes; would be absent more than four days per month; and was
unable to sustain full-time employment. Tr. 789-91. The ALJ explained that Dr. Ciavarri’s opinion
was inconsistent with the clinical findings of record, including her own treatment notes. Tr. 25.
For example, treatment notes showed that Plaintiff was neurologically intact and had a normal
gait, normal heel and toe walk, normal range of motion of the lumbar spine, and full strength in
the upper and lower extremities. Tr. 433, 435, 437, 464, 500, 502, 516, 536, 539, 573, 581, 583,
640, 703, 715. The ALJ also compared Dr. Ciavarri’s clinical notes with the limitations described
above, noting that in November 2018, Dr. Ciavarri reported that Plaintiff was doing a lot of
housework and chasing her one-year-old granddaughter around (Tr. 769-70), and in January 2019,
she indicated that Plaintiff had shoveled snow a couple of times; she had never filled her
prescription for Lyrica; and she declined to undergo physical therapy(Tr. 765). Tr. 28.
In support of her contention that the ALJ’s physical RFC finding was unsupported, Plaintiff
cites to occasional findings in the record of positive straight leg raise tests and some findings

suggesting she needed cervical and lumbar surgical intervention. See ECF No. 10-1 at 14 (citing
Tr. 450, 459, 501, 640, 686). However, the ALJ discussed reports indicating that Plaintiff was not
a surgical candidate. Tr. 25, 666, 674. Significantly, Dr. Ciavarri noted that Plaintiff’s MRI scan
was negative for surgical indications. Tr. 25, 674. The ALJ also noted that MRI scans performed
in February 2018 identified mild bulging discs in the cervical spine with mild spinal cord
narrowing, and imaging of the lumbar spine identified a small osteophyte formation, but no spinal
stenosis. Tr. 25, 738. In any event, Plaintiff did not follow up with a surgeon, and the record does
not show that Plaintiff had any neck or back surgeries. Tr. 673. Furthermore, where, as here, there
is evidence in favor of the ALJ's decision, the fact that the record contains some positive findings
or opinions does not undermine the ALJ's decision that Plaintiff could do a range of light work.

See Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (The Commissioner’s
findings of fact must be upheld unless “a reasonable factfinder would have to conclude
otherwise.”) (emphasis in original).
Dr. Ciavarri’s opinion was also inconsistent with the opinion of state agency medical
consultant G. Feldman (“Dr. Feldman”) that Plaintiff could occasionally lift and/or carry up to 20
pounds; frequently lift and/or carry up to ten pounds; stand and/or walk six hours in an eight-hour
workday; sit about six hours in an eight-hour workday; and had unlimited pushing and/or pulling
ability other than shown for lifting and/or carrying. Tr. 118. Dr. Feldman also opined that Plaintiff
could occasionally climb and crawl and frequently balance, stoop, kneel, crouch, and while limited
in bilateral overhead reaching, she had unlimited handling, fingering, and feeling abilities. Tr. 119.
Dr. Feldman further opined that Plaintiff should avoid concentrated exposure to noise, vibration,
and hazards. Tr. 119-20.
Plaintiff argues that, in finding Dr. Feldman’s opinion persuasive, the ALJ did not

specifically cite to findings that supported the doctor’s opinion, but rather cited to exhibits. See
ECF No. 10-1 at 17. Plaintiff’s argument is unpersuasive. See Berry v. Schweiker, 675 F.2d 464,
469 (2d Cir. 1982) (“the absence of an express rationale does not prevent us from upholding the
ALJ’s determination . . . [where] portions of the ALJ’s decision and the evidence before him
indicate that his conclusion was supported by substantial evidence”). Here, the ALJ cited to the
clinical findings throughout the decision showing that Plaintiff was neurologically intact and had
a normal gait, normal heel and toe walk, normal range of motion of the lumbar spine, and full
strength in the upper and lower extremities, and cited the specific exhibits in support of his finding.
Tr. 25-26 (citing 433, 435, 437, 464, 500, 502, 516, 536, 539, 573, 581, 583, 640, 703, 715).
Because the clinical findings were consistent with, and supported by, Dr. Feldman’s opinion, the

ALJ properly found Dr. Feldman’s opinion persuasive. See Schisler v. Sullivan, 3 F.3d 563, 568
(2d Cir. 1993) (The opinion of a reviewing source, such as a state agency physician, can constitute
substantial evidence in support of an ALJ’s determination).
Plaintiff’s argument that Dr. Feldman’s opinion was stale is similarly meritless. See ECF
No. 10-1 at 17. Dr. Feldman’s opinion is not “stale” as the evidence of record after the doctor’s
opinion does not demonstrate that Plaintiff’s condition significantly deteriorated. Tr. 92-94, 633,
1511-12. See Kidd v. Comm’r of Soc. Sec., No. 18-CV-1217, 2019 WL 1260750, at *3, 4
(W.D.N.Y. 2019) (A consultative examiner’s opinion was not automatically stale merely because
it was rendered almost two years prior to the administrative hearing). After Dr. Feldman’s August
2017 opinion, Plaintiff told Dr. Ciavarri that she was functional on her pain regimen and the doctor
prescribed a walking program for Plaintiff. Tr. 767-68. The doctor also reported that Plaintiff had
negative straight leg raise testing bilaterally. Tr. 765.
Dr. Ciavarri’s opinion was also inconsistent with Plaintiff’s full range of activities of daily

living. The ALJ properly considered Plaintiff’s activities of daily living, including her ability to
care for her quadriplegic daughter, in determining her ability to work. See Poupore v. Astrue, 566
F.3d at 307 (evidence that Poupore cared for an infant, watched television, read, used the computer,
and occasionally drove, vacuumed, and washed dishes, supported the ALJ’s finding that Poupore
could perform light work); see also Carvey v. Astrue, 380 F. App’x 50, 53 (2d Cir. 2020) (ALJ
factored in claimant’s ability to perform childcare in determining his ability to work). Although
Plaintiff claims that her son performed most of her daughter’s care (see ECF No. 10-1 at 16; Tr.
39), this is inconsistent with Plaintiff’s reports throughout the record that she was caring for her
paralyzed daughter with no mention of her son’s assistance. Tr. 588, 656, 659.
Plaintiff told Dr. Ciavarri that she was the “full time care[ ]taker for her daughter.” Tr. 663,

666. She also stated in her function report that she was the “sole provider for daughter.” Tr. 278.
Moreover, although she may have only infrequently chased her granddaughter around or shoveled
snow (Tr. 765, 769-70), Plaintiff continuously cared for her personal needs, prepared meals,
managed her finances, used public transportation, drove short distances, and socialized with
family. Tr. 278-81, 316-19, 351-55, 507, 645, 769-70. In response to Dr. Ciavarri’s advice to
exercise, Plaintiff and the doctor agreed that she should use her home treadmill at least three times
a week. Tr. 661. Plaintiff also relayed that she unloaded boxes after she had moved; performed
yard work and housework (albeit sometimes a family member helped with heavy lifting); and
played games on her computer. Tr. 663, 669, 673, 729. Furthermore, despite her complaints of
disabling pain, Plaintiff stated she had no problems paying attention, could follow spoken and
written instructions, had no difficulty getting along with others, and could finish what she started,
although she needed some breaks when doing chores. Tr. 284, 320, 322. Based on the foregoing,
the Court finds that the ALJ properly concluded there was neither clinical nor diagnostic support

for the restrictions identified by Dr. Ciavarri.
Plaintiff’s challenges to the ALJ’s assessment of the psychiatric opinions of Dr. Brownfield
and Dr. Lin are similarly unavailing. See ECF No. 10-1 at 19. The ALJ accorded Dr. Brownfeld’s
opinion “considerable probative value” and Dr. Lin’s opinion “only some probative value.” Tr. 27.
Upon review of the ALJ’s decision, the Court finds that the ALJ accounted for Plaintiff’s ability
to handle stress by limiting Plaintiff to unskilled jobs. Tr. 28. Furthermore, Plaintiff has failed to
explain how the limitations the ALJ assessed do not account for Dr. Brownfeld’s opinion that
Plaintiff could appropriately deal with stress with mild limitations. Tr. 507. See Bartell v. Comm’r
of Soc. Sec., 2014 WL 4966149, at *3 (N.D.N.Y. 2014) (holding the ALJ adequately factored in
limitations in maintaining concentration, persistence and pace and difficulties in dealing with stress

by limiting the claimant to simple unskilled work). “[B]asic communication is all that is needed to
do unskilled work. The ability to hear and understand simple oral instructions or to communicate
simple information is sufficient.” SSR 96-9p. In addition, unskilled work “ordinarily involve[s]
dealing primarily with objects, rather than with data or people.” SSR 85-15.
Plaintiff’s contention that Dr. Lin’s mild limitations in maintaining attention and
concentration and moderate limitations in performing complex tasks was inconsistent with the
ALJ’s RFC (see ECF No. 10-1 at 20) is likewise unpersuasive. See Martinez v. Comm’r of Soc.
Sec., No. 3:16-CV-0908, 2017 WL 2633532, at *7 (N.D.N.Y. 2017) (finding that an RFC
determination for unskilled work is not necessarily inconsistent with moderate mental limitations
and noting that the Second Circuit has recognized that moderate mental limitations do not prevent
a claimant from performing unskilled work) (citing Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir.
2010); Whipple v. Astrue,, 479 F. App’x 367, 370 (2d Cir. 2012); Cohen v. Comm’r of Soc. Sec.,
643 F. App’x. 51, 53 (2d Cir. 2016)). The ALJ also reasonably found Dr. Lin’s opinion that

Plaintiff had moderate-to-marked difficulty tolerating stress unsupported by the record evidence.
Tr. 27. As noted by the ALJ, Plaintiff’s PHQ-9 test for depression showed that Plaintiff achieved
a score of 2, indicating only minimal depression, and her GAD-7 score of 1 suggests no symptoms
of anxiety. Tr. 27, 728.
In sum, the ALJ adequately accounted for stress in limiting Plaintiff to unskilled work and
Plaintiff points to no evidence in the record supporting a finding for greater restrictions. Plaintiff
cared for her disabled daughter, had a wide array of daily activities of living, and had mental status
findings showing that she had coherent thoughts, full orientation, intact attention and
concentration, intact memory, and good insight/judgment. Tr. 278-81, 316-19, 351-55, 507, 645,
663, 666, 769-70. Plaintiff was also cooperative and related adequately. Tr. 506, 644. Ultimately,

it is Plaintiff who bears the burden of demonstrating functional limitations that preclude her
performance of any substantial gainful activity. See 20 C.F.R. § 416.945(a)(3) (the claimant is
responsible for providing the evidence used in the RFC determination); see Poupore, 566 F.3d at
306 (Commissioner need not provide evidence of the claimant’s RFC); see also Diaz v. Shalala,
59 F.3d 307, 315 (2d Cir. 1995) (citing Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983)
(“[Commissioner] is entitled to rely not only on what the record says but also on what it does not
say.”). Plaintiff here has not met her burden.
While Plaintiff may disagree with the ALJ’s RFC finding, Plaintiff has not shown that no
reasonable factfinder could have reached the ALJ's conclusions based on the evidence in the
record. Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013) (The question is not whether
there is substantial evidence to support the plaintiff's position, but whether there is substantial
evidence to support the ALJ’s decision.). The substantial evidence standard is “a very deferential
standard of review—even more so than the ‘clearly erroneous’ standard,” and the Commissioner’
findings of fact must be upheld unless “a reasonable factfinder would have to conclude
otherwise.”). Brault, 683 F.3d at 448) (emphasis in original). Thus, Plaintiff must show that no
reasonable factfinder could have reached the ALJ's conclusions based on the evidence in the
record. Id. at 448; see also Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (reviewing courts
must afford the Commissioner’s determination considerable deference and cannot substitute its
own judgment even if it might justifiably have reached a different result upon a de novo review).
For all the reasons discussed above, the Court finds that the ALJ properly considered the
record as a whole, including medical opinion evidence, treatment reports, and diagnostic testing,
as well as Plaintiff's testimony, and those findings are supported by substantial evidence.
Accordingly, the Court finds no error.
CONCLUSION
Plaintiff's Motion for Judgment on the Pleadings (ECF No. 10) is DENIED, and the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 11) is GRANTED. Plaintiff's
Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court will enter
judgment and close this case.
IT IS SO ORDERED.

Mr f Bure,
UNITED STATES MAGISTRATE JUDGE

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10363800. Public record. Not legal advice.