Schmidt v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

W ESTERN DISTRICT OF NEW YORK

CHRISTINE S.,

Plaintiff,

v.

20-CV-282

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. 13. Christine 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. 10, 11. For the following reasons, Plaintiff’s motion (Dkt. No. 10)

is denied, and the Commissioner’s motion (Dkt. No. 11) is granted.

BACKGROUND

On January 27, 2017, Plaintiff filed for Social Security Income (“SSI”)

alleging disability beginning on July 1, 2007, due to bipolar disorder, depression, anxiety

with panic attacks, and neuropathy. Tr. at 185-90, 204.1 Plaintiff’s claim was denied at

the initial level and she requested review. Tr. at 102-16. Administrative Law Judge

Andrew J. Solter (“the ALJ”) conducted a hearing on October 15, 2018. Tr. at 34-73.

Plaintiff, who was represented by counsel, testified as did a vocational expert (“VE”).

Tr. at 34-73. On January 10, 2019, the ALJ issued a decision in which he found that

Plaintiff was not under a disability as defined by the Act since January 27, 2017, and

therefore, was not entitled to benefits. Tr. at 12-28. Plaintiff commenced the current

action on March 9, 2020. Dkt. No. 1.

LEGAL STANDARD

Disability Determination

A person making a claim for Social Security benefits bears the ultimate

burden of proving disability throughout the period for which benefits are sought. See 20

C.F.R. § 416.912(a); Schauer v. Schweiker, 675 F.2d 55, 59 (2d Cir. 1982). The

claimant is disabled only if she shows that she is unable to engage in any substantial

gainful activity due to any medically determinable physical or mental impairment which

has lasted, or can be expected to last, for a continuous period of at least 12 months. 42

U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.909; see Barnhart v. Walton, 535 U.S. 212,

216-22 (2002).

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

No. 9.

A disabling physical or mental impairment is an impairment that results

from “anatomical, physiological, or psychological abnormalities which are demonstrable

by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §

1382c(a)(3)(D). Congress places the burden upon the claimant to establish disability by

requiring her to “furnish such medical and other evidence of the existence [of disability]

as the Commissioner of Social Security may require.” 42 U.S.C. § 1382c(a)(3)(H)(i).

The function of deciding whether a person is under a disability within the meaning of the

Act belongs to the Commissioner. 20 C.F.R. § 416.927(e)(1); Pena v. Chater, 968 F.

Supp. 930, 937 (S.D.N.Y. 1997).

The Commissioner has established a five-step sequential evaluation for

adjudicating disability claims set forth at 20 C.F.R. § 416.920. The claimant has the

burden at the first four steps. The Commissioner has the burden at the fifth step of

demonstrating that the claimant can perform other work existing in significant numbers

in the national economy, but the burden of proving disability is always on the claimant.

See 20 C.F.R. § 416.920; Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (stating

that “[t]he claimant bears the ultimate burden of proving [disability] throughout the period

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

District Court Review

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

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-JTC, 2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008)

(detailing the five steps). At step one, the ALJ found that Plaintiff had not engaged in

substantial gainful activity since January 27, 2017, the application date. Tr. at 17. The

ALJ concluded at step two that Plaintiff’s peripheral neuropathy, asthma, obesity, major

depressive disorder, anxiety disorder, and bipolar disorder were severe impairments.

Tr. at 17. At step three, he concluded that Plaintiff did not have an impairment or

combination of impairments which met or equaled the Listings, giving special

consideration to Listing 3.03 (Asthma), Listing 11.14 (Peripheral Neuropathy), Listing

12.04 (Depressive, Bipolar and Related Disorders), Listing 12.06 (Anxiety and

Obsessive-Compulsive Disorders), and SSR 02-1p (Evaluation of Obesity). Tr. at 17-

18.

The ALJ found that Plaintiff retained the RFC to perform light work

as defined by 20 C.F.R. § 416.967(b), except that she required: a sit/stand option at will

while remaining on-task; no more than occasional stooping, kneeling, crouching,

crawling, and climbing ramps or stairs; no work at unprotected heights or with ladders,

ropes, or scaffolds; no concentrated exposure to dust, fumes, gases, and other

pulmonary irritants; a low-stress work environment defined as having simple routine

tasks, basic work-related decisions, rare changes in workplace setting, occasional

interaction with the public limited to superficial interaction only, and frequent interaction

with coworkers and supervisors. Tr. at 19.

At step four, the ALJ determined that Plaintiff could no longer perform her

past work as a manager trainee, cashier, and store clerk. Tr. at 26-27. Relying on the

VE’s testimony, the ALJ found at step five that Plaintiff could perform work existing in

significant numbers in the national economy, including work as a garment bagger, an

office helper, and a marker. Tr. at 27-28. Accordingly, the ALJ determined that Plaintiff

had not been under a disability since filing her SSI application in January 2017. Tr. at

28.

Judgment on the Pleadings

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

pleadings. Dkt. Nos. 10, 11. Plaintiff argues that the ALJ improperly weighed various

medical opinions, and because he gave those opinions little weight, created a gap in the

record and improperly relied on his “own lay interpretation of raw medical data” in

formulating the RFC. Dkt. No. 10-1, pp. 14-30. The Commissioner counters that the

ALJ properly weighed the medical opinion evidence relating to Plaintiff’s physical and

mental limitations, giving deference to Plaintiff’s subjective complaints, and that there

was sufficient evidence in the record for the ALJ to determine her RFC. Dkt. No. 11-1,

pp. 12-24. Having reviewed the record in its entirety, this Court finds that the ALJ’s

decision is supported by substantial evidence and free from legal error.

The Medical Opinion Evidence

On August 8, 2018, Plaintiff saw Dr. Balvinder Kang at BryLin Behavioral

Health Center for medication management after Plaintiff’s previous provider left the

clinic. Tr. at 413. Plaintiff had gained 25 pounds in two years but had no other side

effects. Tr. at 413. She denied feeling depressed or suicidal and reported that

Cymbalta helped with her neuropathic pain. Tr. at 413. A mental status examination

showed a euthymic mood, appropriate affect, good concentration, good memory, good

insight, and good judgment. Tr. at 414. Dr. Kang continued Plaintiff’s medication

regimen with no changes. Tr. at 414.

In connection with her application for SSI, Plaintiff attended an internal

medicine examination with Nikita Dave, M.D., on April 7, 2017. Tr. at 374. Plaintiff

reported symptoms of numbness, tingling, and burning in her feet for about 10 years.

Tr. at 374. She said she was diagnosed with peripheral neuropathy in 2010, but had

not followed up with a neurologist since that time. Tr. at 374. She also reported a

history of asthma with no flare-ups for about five years. Tr. at 374. Plaintiff lived with

her boyfriend, two children, and grandfather. Tr. at 375. She performed activities of

daily living as needed and enjoyed watching television, listening to the radio, and

reading. Tr. at 375. Upon examination, Plaintiff had a normal gait and stance with no

assistive device. Tr. at 375. She could squat 75% of full, walk on her heels and toes

without difficulty, climb on an off the examination table without assistance, and rise from

a chair without difficulty. Tr. at 375. She had full ranges of motion in her spine, arms,

and legs; slightly decreased sensation in her feet; full (5/5) strength in her arms and

legs; and intact hand and finger dexterity. Tr. at 376.

Dr. Dave opined that Plaintiff had moderate limitations for prolonged

standing and walking due to the neuropathy affecting her feet. Tr. at 377. Dr. Dave

advised that Plaintiff should avoid ladders, heights, sharp dangerous equipment, and

machinery, as well as smoke, dust, fumes, inhalants, chemicals, extremes of

temperature, and environmental allergens such as animals due to asthma/allergies. Tr.

at 377.

The same day, Plaintiff attended a psychiatric evaluation with Janine

Ippolito, Psy.D. Tr. at 368. She reported a history of depression and anxiety with a

suicide attempt in June 2016. Tr. at 368. She said her mental health treatment at

BryLin helped manage her symptoms. Tr. at 368. She reported that she stopped

working in 2006 and was unable to work due to nerve pain. Tr. at 368. She lived with

her fiancé, children (ages 10 and 3), and grandfather. Tr. at 368. She was able to

cook, clean, do laundry, drive, go grocery shopping, provide childcare, and care for her

personal hygiene independently. Tr. at 370-71. She socialized rarely and spent a

typical day taking care of her children, cooking meals, doing household chores,

watching television, reading, and coloring. Tr. at 371.

A mental status examination showed adequate social skills, good hygiene

and grooming, normal motor behavior, and appropriate eye contact. Tr. at 369. Plaintiff

had normal speech and thought processes, restricted affect, intact attention and

concentration, mildly impaired memory, average intellectual functioning, and good

insight and judgment. Tr. at 370. She reported feeling anxious. Tr. at 370. Dr. Ippolito

found no evidence of limitation in Plaintiff’s abilities to understand, remember, or apply

simple and complex directions and instructions; use reason and judgment to make

work-related decisions; sustain an ordinary routine and regular attendance at work;

maintain personal hygiene and appropriate attire; and demonstrate awareness of

normal hazards and take appropriate precautions. Tr. at 371.

Dr. Ippolito opined that, due to emotional distress, Plaintiff had mild

limitations in her ability to sustain concentration and perform a task at a consistent pace

and moderate limitations in her abilities to interact adequately with supervisors,

coworkers, and the public and regulate emotions, control behavior, and maintain her

well-being. Tr. at 371. Dr. Ippolito concluded that Plaintiff’s psychiatric problems did

not appear to be significant enough to interfere with the ability to function on a daily

basis. Tr. at 371.

On April 17, 2017, state agency psychiatric consultant A. Dipeolu, Ph.D.,

reviewed the record and opined that Plaintiff’s mental impairments were non-severe

considering her current level of functioning. Tr. at 85, 380-82. The following day, state

agency medical consultant, R. Dickerson, M.D., reviewed the record and opined that

Plaintiff could perform at least medium exertion work but should avoid hazards and

environmental irritants due to neuropathy and asthma. Tr. at 87-88, 383-85.

On October 10, 2018, Dr. Kang completed a mental RFC questionnaire.

Tr. at 544-48. He indicated that Plaintiff took Cymbalta for recurrent episodes of severe

depression and chronic anxiety. Tr. at 544. He checked boxes to indicate that Plaintiff

had little to no limitation in her abilities to remember work like procedures; understand,

remember, and carry out very short and simple instructions; sustain an ordinary routine;

ask simple questions or request assistance; be aware of normal hazards and take

appropriate precautions; interact appropriately with the public; maintain socially

appropriate behavior; and adhere to basic standards of neatness and cleanliness. Tr. at

546-47. Dr. Kang checked boxes to indicate that Plaintiff had “limited but satisfactory”

abilities to maintain attention for two-hour segments; maintain regular attendance and

be punctual; work in coordination with others; make simple work-related decisions;

complete a normal work-day without interruptions from psychologically based

symptoms; perform at a consistent pace; accept instruction and respond appropriately

to criticism; get along with coworkers; and respond appropriately to changes in a routine

work setting. Tr. at 546. He further indicated that Plaintiff was “seriously limited” in her

ability to deal with normal work stress. Tr. at 546. Dr. Kang asserted that Plaintiff would

likely miss more than four days of work per month and could not engage in full-time

competitive employment on a sustained basis. Tr. at 548. Dr. Kang stated that these

limitations applied since August 8, 2018, two months prior, the first time he examined

Plaintiff. Tr. at 548.

The ALJ’s Evaluation of the Medical Evidence

Plaintiff contends that the ALJ improperly gave limited weight to the

treating opinion of Dr. Kang, and gave little weight to consultative opinions of Dr. Ippolito

and Dr. Dipeolu, and improperly cherry-picked portions of Dr. Kang’s opinion while

ignoring others. Dkt. No. 10-1, p. 14. Plaintiff argues that because the ALJ “rejected all

of the medical opinion evidence and the record contained no other useful functional

assessment of Plaintiff’s mental impairments, the ALJ clearly relied on raw medical data

in assessing the mental RFC.” Dkt. No. 10-1, p. 14. Plaintiff contends that the ALJ also

“cherry-picked” from the opinion of Dr. Dave regarding Plaintiff’s physical abilities. Dkt.

No. 10-1, p. 28-29. This Court does not agree that the ALJ’s assessment of the opinion

evidence constitutes reversible error.

As an initial matter, an ALJ must consider all of the relevant

evidence in the case record, not just the opinion evidence, in reaching a claimant’s

RFC. 20 C.F.R. §§ 416.945 (a); 416.927 (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.”). Provided

that it is supported by record evidence, an ALJ’s RFC determination need not “perfectly

correspond” with any of the medical source opinions cited in his or her decision. Matta

v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (summary order); Wilson v. Colvin, No.

6:16-CV-06509-MAT, 2017 WL 2821560, at *5 (W.D.N.Y. June 30, 2017) (stating “the

fact that a residual functional capacity assessment does not correspond exactly to a

medical expert’s opinion in the record does not mean that the residual functional

capacity assessment is just made up”) (internal citation omitted).

Consistent with this reasoning, the Second Circuit Court of Appeals has

affirmed RFC determinations where the ALJ rejected a treating source’s opinion or

where the record contains no functional assessment, provided the RFC is otherwise

supported by the record. See Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 9 (2d

Cir. 2017) (holding that even after the ALJ discounted a treating source opinion, remand

to secure another medical source statement was not required, where the record

contained sufficient evidence from which the ALJ could assess the residual functional

capacity, including treating psychiatrist’s years’ worth of treatment notes and evidence

of [claimant’s] varied social and recreational activities); Bliss v. Comm’r of Soc. Sec.,

406 F. App’x 541, 542 (2d Cir. 2011) (“Although the ALJ has a duty to scrupulously and

conscientiously probe into, inquire of, and explore for all the relevant facts, . . . the ALJ

need not involve medical sources or claimant’s counsel in his deliberative process or

assessment of the evidence.”).

In this case, the ALJ assessed an RFC that was consistent with the record

as a whole, including the medical opinion evidence and Plaintiff’s alleged limitations. Tr.

at 19-26. After considering all the evidence, the ALJ gave little weight to the opinions of

psychological examiner Dr. Ippolito and state agency psychological consultant Dr.

Dipeolu, who opined that Plaintiff had mild to no mental limitations. He instead afforded

extreme deference to Plaintiff’s testimony and found her to be more limited in her

mental abilities. Tr. at 22-23, 85, 368-71, 380-82. Further, the ALJ thoroughly

considered the opinion of treating psychiatrist Dr. Kang, and gave significant weight to

the portions of his opinion that were consistent with the record and little weight to those

that were inconsistent with the other evidence. Tr. at 23, 544-48.

With respect to Plaintiff’s physical functioning, the ALJ considered the

consultative examination of Dr. Dave and gave significant weight to the portions of her

opinion that were consistent with the record and little weight to the portions that were

not. Tr. at 26, 374-77. The ALJ accorded more weight to the opinion of state agency

medical consultant Dr. Dickerson, but ultimately found greater restrictions based on

Plaintiff’s subjective reports. Tr. at 26, 383-85. While the ALJ did not adopt any one

opinion, this was not erroneous. The ALJ properly considered all of the opinions and

incorporated those limitations that were supported into the RFC finding. See Rodriguez

v. Comm’r of Soc. Sec., No. 17-CV-6006-FPG, 2018 WL 4681624, at *7 (W.D.N.Y.

Sept. 28, 2018) (holding that the ALJ did not err in weighing the various medical

opinions where he “did not adopt any opinion in its entirety,” but “several RFC findings

were consistent with portions of each opinion”).

Mental Opinion Evidence

Contrary to Plaintiff’s argument, the ALJ did not “reject” all the opinion

evidence related to her mental impairments. Dkt. No. 10-1, pp. 14, 22. Rather, the ALJ

properly considered the opinions of Dr. Ippolito, Dr. Dipeolu, and Dr. Kang, gave them

each at least some weight, and incorporated mental limitations in the RFC that were

supported by the record. Tr. at 19-23, 368-71, 380-82. The ALJ discussed each

medical opinion, set forth his reasoning for the weight afforded to each, and cited

specific evidence in the record which supported his determination. Tr. at 22-23. For

example, the ALJ found Plaintiff capable of performing simple, routine tasks. Tr. at 19.

This was consistent with Dr. Ippolito’s opinion that Plaintiff had no limitations in her

ability to understand, remember, or apply simple directions and instructions and Dr.

Dipeolu’s opinion that she had only mild limitations in understanding, remembering, and

applying information. Tr. at 85, 371. Likewise, consistent with Dr. Ippolito’s opinion that

Plaintiff had moderate limitations in her ability to interact adequately with others and Dr.

Dipeolu’s opinion that she had mild limitations in this area, the ALJ limited Plaintiff to

occasional interaction with the public and no more than frequent interaction with

coworkers and supervisors. Tr. at 19, 85, 371.

Because these mental limitations are grounded in the medical

opinions, it cannot be said that the ALJ substituted his own judgment for that of the

medical professionals. See Rivera v. Berryhill, No. 16-cv-6775L, 2018 WL 2253121, at

*3 (W.D.N.Y. May 17, 2018); Genito v. Comm’r of Soc. Sec., No. 7:16-cv-0143 (GTS),

2017 WL 1318002, at *9 (N.D.N.Y. April 7, 2017) (observing that the ALJ did not

substitute his own opinion by weighing and choosing between the medical opinions

present in the record).

Moreover, the ALJ afforded extreme deference to Plaintiff’s subjective

reports and incorporated greater mental limitations in the RFC than opined by Dr.

Ippolito or Dr. Dipeolu. Tr. at 22-23, 85, 368-71, 380-82. Where, as here, an ALJ

assesses a more restrictive RFC than the medical opinions of record based on the

Plaintiff’s subjective complaints, there is no basis for a remand. See Baker o/b/o Baker

v. Berryhill, No. 1:15-cv-00903-MAT, 2018 WL 1173782, *2 (W.D.N.Y. Mar. 6, 2018);

Dougherty-Noteboom v. Berryhill, No. 17-CV-00243-HBS, 2018 WL 3866671, at *10

(W.D.N.Y. Aug. 15, 2018) (holding that the ALJ’s RFC assessment was not based on

the ALJ’s lay opinion where it corresponded with the plaintiff’s testimony and with an

expert medical source statement.)

Plaintiff claims that the ALJ did not articulate good reasons for giving little

weight to the “treating” opinion of Dr. Kang. Dkt. No. 10-1, p. 18. Although the ALJ

noted that Dr. Kang provided psychiatric treatment, Dr. Kang was not a “treating source”

whose opinion would be entitled to controlling weight under the regulations. Controlling

weight may be given to an opinion from only a “treating source,” a doctor who has had

an ongoing treatment relationship with the claimant such that the doctor has a

“longitudinal picture” of the claimant’s impairments. See 20 C.F.R. § 416.927(c)(2).

The record is clear that Dr. Kang saw Plaintiff only once before he completed the

functional questionnaire in October 2018. Tr. at 413-15, 544-48. Dr. Kang explicitly

stated that the earliest date that his assessed limitations applied was August 8, 2018,

the date of his first visit with Plaintiff. Tr. at 548. In this regard, Dr. Kang did not purport

to have treated Plaintiff longer than two months before rendering an opinion as to her

mental limitations. Such a short treatment relationship does not entitle the doctor’s

opinion controlling weight. See Feliciano v. Berryhill, No. 6:16-cv-06311(MAT), 2017

WL 3537130, at *3 (W.D.N.Y. Aug. 17, 2017) (finding no error in giving a psychiatrist’s

opinion little weight where the opinion was issued after only two visits and the doctor

merely checked off boxes and provided little narrative); Comins v. Astrue, 374 F. App’x

147, 149 (2d Cir. 2010) (holding that the physician who saw claimant once did not have

ongoing treatment relationship).

Regardless, the ALJ articulated good reasons for the weight given to the

various portions of Dr. Kang’s opinion. Tr. at 23. Notably, the ALJ gave significant

weight to Dr. Kang’s check-box opinions regarding “unlimited or very good” ability to

understand, remember, and carry out very short and simple instructions; “limited but

satisfactory” ability to get along with coworkers and respond appropriately to changes in

a routine work setting; and “seriously limited” ability to deal with normal work stress. Tr.

at 23, 546-47. Consistent with these findings, the ALJ limited Plaintiff to a low-stress

work environment with simple and routine tasks, basic work-related decisions, rare

changes in workplace setting, and frequent interaction with coworkers and supervisors.

Tr. at 19, 23.

As with the opinions of Drs. Ippolito and Dipeolu, the ALJ incorporated

greater mental limitations than indicated by Dr. Kang based on Plaintiff’s testimony

regarding her ability to interact with the public. Tr. at 23. As previously noted, this is not

improper. The ALJ further considered but gave little weight to the remainder of Dr.

Kang’s opinion, which indicated that Plaintiff would be absent more than four days per

month and could not engage in full-time competitive employment on a sustained basis.

Tr. at 23, 548. As the ALJ noted, Dr. Kang’s opinion regarding Plaintiff’s ability to work

is a matter reserved to the Commissioner. Tr. at 23-24; see 20 C.F.R. § 416.927(d)

(holding that the ultimate finding of whether a claimant is disabled and cannot work is

“reserved to the Commissioner.”); LaValley v. Colvin, 672 F. App’x 129, 130 (2d Cir.

2017) (“However, whether LaValley qualifies as ‘disabled’ under the statute is a decision

reserved to the Commissioner.”).

Furthermore, the ALJ found that particular restrictions were based solely

on Plaintiff’s uncorroborated subjective reports and were in direct conflict with Dr.

Kang’s function-by-function assessment, Plaintiff’s reported daily activities, and the fact

that she had not required treatment for more than a year. Tr. at 23; see also Tr. at 546

(Dr. Kang indicating that Plaintiff had a limited but satisfactory ability to maintain regular

attendance and punctuality and to complete a normal workday and workweek). These

are all appropriate reasons for affording less weight to a limitation within an opinion.

See Gray v. Colvin, No. 1:13-CV-00955 MAT, 2015 WL 5005755, at *5 (W.D.N.Y. Aug.

20, 2015) (“The ALJ was within his discretion to accept certain portions of [the treating

physician]’s opinion, but reject those that were not supported by her own treatment

notes or other substantial record evidence.”); Kelsey v. Comm’r Soc. Sec., 335 F. Supp.

3d 437, 443 (W.D.N.Y. 2018) (“It is an appropriate exercise of discretion for an ALJ to

afford little weight to a medical opinion that is internally inconsistent.”)

Plaintiff herself consistently reported that she was able to manage daily

childcare, clean, cook, do laundry, shop, and tend to personal grooming and hygiene.

Tr. at 19, 56-58, 215-19. These activities suggest that she was able to sustain a daily

routine over a prolonged period. See Krull v. Colvin, 669 F. App’x 31, 32 (2d Cir. 2016)

(holding that the ALJ appropriately declined to adopt the doctor’s limitations where the

claimant engaged in moderately complex tasks, including helping with the care of her

grandchildren, using computers, and other daily activities); see Williams v. Colvin, No.

14-CV-947S, 2017 WL 3404759, at *6 (W.D.N.Y. Aug 9, 2017) (“[A]n ALJ may consider

Plaintiff’s daily activities, symptoms, and objective medical evidence together to

determine whether a treating physician is credible.”).

Lastly, the ALJ found that the limited mental health treatment record did

not support Dr. Kang’s opinion regarding Plaintiff’s lack of ability to sustain work. Tr. at

23. As the ALJ discussed, Plaintiff made significant progress during her short period of

mental treatment and was discharged from counseling, after reaching her goals, a year

before Dr. Kang rendered his opinion. Tr. at 23, 427. Indeed, Dr. Kang’s own treatment

records indicate that Plaintiff’s depression was in remission and contained little other

than benign clinical findings of “good” concentration, memory, insight, and judgment.

Tr. at 22, 414.

Under the circumstances, it was appropriate for the ALJ to discount those

aspects of Dr. Kang’s opinion insofar as they were inconsistent with other substantial

evidence. See Morris v. Berryhill, 721 F. App’x 25, 29 (2d Cir. 2018) (“Rejecting

[doctor’s] opinion here in favor of contrary evidence was a proper exercise of

discretion.”); Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018) (the court

“accept[s] the weight assigned to inconsistent opinions as a proper exercise of the ALJ’s

discretion”).

Plaintiff accuses the ALJ of “blatant improper cherry-picking” of Dr. Kang’s

opinion in order to support a finding of not disabled. Dkt. No. 10-1, p. 19. While it is

true than an ALJ cannot selectively choose “only [those] portions of a medical opinion

that support his determination, while ignoring others[,]” Bohart v. Astrue, No. 10-CV-

6503, 2011 WL 2516413, at *5 (W.D.N.Y. June 23, 2011), the ALJ in this case did not

ignore any portion of Dr. Kang’s opinion. Tr. at 23, 544-48. Rather, the ALJ thoroughly

discussed and evaluated every part of his opinion, accepting those portions that were

supported by the record while declining to accept those that were not. Tr. at 23. There

is nothing improper in an ALJ evaluating and weighing evidence in this manner. See

Pavia v. Colvin, No. 6:14-cv-0679 (MAT), 2015 WL 4644537, at *4 (W.D.N.Y. Aug. 4,

2015) (citing Veino v. Barnhart, 312 F.3d 578, 588 (2d. Cir. 2002)). In this Court’s view,

the ALJ conducted “a searching review of the record” and “the substance of the treating

physician rule was not traversed.” Guerra v. Saul, No. 18-2646- CV, 2019 WL 4897032,

at *1 (2d Cir. Oct. 4, 2019) (quoting Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir.

2019)); see also Sample v. Comm’r of Soc. Sec., No. 17-CV-635, 2019 WL 2464490, at

*3-5 (W.D.N.Y. June 13, 2019) (upholding the ALJ’s decision where “the record

demonstrate[d] more than ample reasons for assigning little weight to [the treating

physician’s] opinion”).

This Court also finds that the ALJ had no obligation to contact Dr. Kang for

clarification or solicit additional opinion evidence because the record was otherwise

complete. See Morris v. Berryhill, 721 F. App’x. 25, 28 (2d Cir. 2018) (“The duty to

recontact arises only if the ALJ lacks sufficient evidence in the record to evaluate the

doctor’s findings, not when the treating physician’s opinion is inconsistent with her own

prior opinions and the rest of the record.”); Rusin v. Berryhill, 726 F. App’x 837, 839-840

(2d Cir. 2018) (holding that the ALJ was under no obligation to recontact the treating

source to resolve inconsistencies between the doctor’s opinion and treatment notes

where there were no obvious gaps in the administrative record and the ALJ possessed

plaintiff’s complete medical history); Pellam v. Astrue, 508 F. Appx 87, 90 (2d Cir. 2013)

(“Therefore, even if the ALJ did not credit all of Dr. Dave’s findings, Dave’s medical

opinion largely supported the ALJ’s assessment of Pellam’s residual functional capacity.

Under these circumstances—especially considering that the ALJ also had all of the

treatment notes from Pellam’s treating physicians—we do not think that the ALJ had

any further obligation to supplement the record by acquiring a medical source statement

from one of the treating physicians.”).

Physical Opinion Evidence

Plaintiff claims that the ALJ improperly cherry-picked and rejected the

opinion of Dr. Dave, erred in giving greater weight to the non-examining opinion of Dr.

Dickerson, and assessed physical limitations based on his own lay opinion. Dkt. No.

10-1, pp. 29-30. Again, this Court disagrees. The ALJ properly considered Dr. Dave’s

consultative opinion and gave significant weight to the portions of that opinion that were

consistent with the record and little weight to those that were not. Tr. at 26, 374-77.

Specifically, the ALJ gave significant weight to Dr. Dave’s recommendation to avoid

certain environmental irritants given Plaintiff’s history of asthma. Tr. at 26, 377. But he

gave little weight to Dr. Dave’s opinion that Plaintiff had moderate limitations for

prolonged standing and walking, because the record did not support those restrictions.

Tr. at 26, 377. Indeed, as the ALJ discussed, Plaintiff had no treatment for any physical

impairments during the alleged period of disability, her examinations revealed only

“mild” neuropathy, and she reported that she went to the gym on a frequent basis and

was training for a 5K race. Tr. at 26, 269-73, 219, 437, 452, 459, 500. This evidence

contradicts Dr. Dave’s assessment that Plaintiff had a moderate limitation for prolonged

standing and walking.

Moreover, the ALJ’s finding that Plaintiff could perform light work, which

requires occasional walking and standing, was not inconsistent with a moderate

limitation for prolonged standing and walking. See April B. v. Saul, 2019 WL 4736243,

*5 (N.D.N.Y. 2019) (holding that “moderate limitations in standing and walking are

consistent with light work”); Gerry v. Berryhill, No. 17-CV-7371 (JS), 2019 WL 955157,

*3 (E.D.N.Y. Feb. 26, 2019) (stating that “[c]ourts within this Circuit have held that

opinions of similar ‘mild to moderate limitations’ [for standing, walking, climbing,

bending, lifting, carrying, and kneeling] support RFC findings that claimants are capable

of ‘light work’”). The ALJ also considered the opinion of state agency medical

consultant Dr. Dickerson, who opined that Plaintiff could perform a full range of medium

work, but the ALJ ultimately found greater restrictions based on Plaintiff’s subjective

reports. Tr. at 26, 383-85.

Plaintiff argues that the ALJ’s limitations in lifting and carrying and the

inclusion of a sit/stand option were the ALJ’s own lay interpretation of limited raw

medical data. Dkt. No. 10-1, pp. 29-30. However, these limitations were clearly

predicated on Plaintiff’s own testimony and other evidence. The ALJ specifically stated

that, in assessing Plaintiff’s RFC, he gave extreme deference to Plaintiff’s subjective

reports, including her testimony that she could sit for 30-minute intervals and stand or

walk for 15- to 20-minute intervals. Tr. at 20, 53. Regarding the lifting and carrying

limitation, Plaintiff testified that she could lift only about 10 pounds, but that she

regularly lifted grocery bags and laundry. Tr. at 20, 52. Giving Plaintiff’s testimony

some deference, the ALJ found her more limited than Dr. Dickerson, who opined that

Plaintiff could lift and carry up to 50 pounds occasionally. Tr. at 20, 26. Specifically,

considering the record as a whole, including evidence of Plaintiff’s daily activities and

the fact that she had never been treated for a physical impairment during the relevant

period, the ALJ determined that Plaintiff could lift and carry up to 20 pounds

occasionally as required for light work. Tr. at 19, 26.

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 an ALJ finds the facts, [a reviewing court] can reject those facts only if a

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

(emphasis added). This case does not present such a situation.

CONCLUSION

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

pleadings (Dkt. No. 10) is hereby DENIED, the Commissioner’s motion for

judgment on the pleadings (Dkt. No. 11) is GRANTED. The Clerk of the Court is

directed to close this case.

SO ORDERED.

DATED: Buffalo, New York

August 23, 2021

s/ H. Kenneth Schroeder, Jr.

H. KENNETH SCHROEDER, JR.

United States Magistrate Judge