# Blodgett v. Commissioner of Social Security

> District Court, W.D. New York · September 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10364185

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 16, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10364185

## How later opinions describe it (automated extraction)

- declining remand where application of the correct legal principles could only lead to the same conclusion that the claimant was not disabled

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________

JACKSON B.,
DECISION
Plaintiff, and
v. ORDER

KILOLO KIJAKAZI,1 Acting Commissioner of 20-CV-495F
Social Security, (consent)

Defendant.
______________________________________

APPEARANCES: LAW OFFICES OF KENNETH R. HILLER
Attorneys for Plaintiff
KENNETH R. HILLER, and
ELIZABETH ANN HAUNGS, 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
PADMA GHATAGE
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza
Room 3904
New York, New York 10278

1 Kilolo Kijakazi became the Acting Commissioner of the Social Security Administration on July 9, 2021,
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).
JURISDICTION

On April 6, 2021, the parties to this action consented pursuant to 28 U.S.C.
§ 636(c) to proceed before the undersigned. (Dkt. 16). The matter is presently before
the court on motions for judgment on the pleadings filed by Plaintiff on January 12, 2021
(Dkt. 14), and by Defendant on March 12, 2021 (Dkt. 15).

BACKGROUND

Plaintiff Jackson B. (“Plaintiff”), brings this action seeking judicial review of the
Commissioner of Social Security’s final decision denying Plaintiff’s applications filed with
the Social Security Administration (“SSA”), on November 7, 2016 for Social Security
Disability Insurance (“SSDI”) under Title II of the Social Security Act, 42 U.S.C. § 401 et
seq. (“the Act”), and for Supplemental Security Income (“SSI”) under Title XVI of the Act
(together, “disability benefits”). Plaintiff alleges he became disabled on June 1, 2015,
based on epilepsy and Asperger’s syndrome. AR2 at 185, 192, 204, 209. Plaintiff’s
applications initially were denied on February 16, 2017, AR at 96-98, and at Plaintiff’s
timely request, AR at 129-30, on December 17, 2018, a hearing was held in Lawrence,
Massachusetts via video conference before administrative law judge (“ALJ”) Anthony
Dziepak (“the ALJ”). AR at 47-82 (“administrative hearing”). Appearing and testifying at
the administrative hearing were Plaintiff, located in Jamestown, New York, represented
by Kristin M. Lee Yaw, Esq., and vocational expert Larry Takki (“the VE”) testified from
Lawrence, Massachusetts.

2 References to “AR” are to the page numbers of the Administrative Record Defendant electronically filed
on November 13, 2020 (Dkt. 13).
On January 7, 2019, the ALJ denied Plaintiff’s claim, AR at 27-46 (“ALJ’s
decision”), and Plaintiff timely filed a request for review of the ALJ’s decision by the
Appeals Council. AR at 179-84. On March 2, 2020, the Appeals Council denied
Plaintiff’s request for review of the ALJ’s decision, AR at 1-6, thereby rendering the

ALJ’s decision the Commissioner’s final determination on the claim. On April 24, 2020,
Plaintiff commenced the instant action seeking judicial review of the ALJ’s decision.
On January 12, 2021, Plaintiff moved for judgment on the pleadings (Dkt. 14)
(“Plaintiff’s Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion
for Judgment on the Pleadings (Dkt. 14-1) (“Plaintiff’s Memorandum”). On March 12,
2021, Defendant moved for judgment on the pleadings (Dkt. 15) (“Defendant’s Motion”),
attaching the Commissioner’s Brief in Response to Plaintiff’s Brief Pursuant to Local
Civil Rule 5.5 for Social Security Cases (Dkt. 15-1) (“Defendant’s Memorandum”). Filed
on April 11, 2021 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. The Clerk of Court is directed to close the file.

FACTS3
Plaintiff Jackson B. (“Plaintiff”), born March 6, 1994, was 22 years old when he
initially applied for disability benefits on November 7, 2016, and 24 years old as of
December 17, 2018, the date of the ALJ’s decision. AR at 41, 185, 192, 204. Plaintiff
lived with his father in an apartment, AR at 43, 199, 226, 231, 234, is single, never

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.
married, and has no children. AR at 41-42, 185-86, 192, 232. Plaintiff attended school
through the 10th grade in special education classes, and obtained a graduate
equivalency degree (“GRE”), but has not completed any specialized job training, trade
or vocational school. AR at 52, 210. Because of his epilepsy, Plaintiff has never

obtained a driver’s license and relies on others for rides. AR at 61, 232, 234. Plaintiff
assists his mother with her commercial retail establishment three or four days a week.
AR at 61.
Plaintiff describes his activities of daily living as including preparing simple meals,
eating, showering, doing housework, yard work except for mowing the lawn which is too
dangerous given Plaintiff’s epileptic seizures, reading, watching television, praying,
taking medication, looking for work, shopping for toiletries, resting, attending church,
and playing his guitar. AR at 231, 233-35. Plaintiff’s past relevant work includes brief
stints as a dishwasher and cleaner at a fast food franchise, and as an attendant at a
recyclable can redemption center. AR at 218-20. Reginald Smith (“Smith”), an

associate with Aspire of WNY (“Aspire”) (developmental disability support services
organization), is trying to help Plaintiff find employment, AR at 74-75, 231, but Plaintiff
maintains he has been unable to find employment either because potential employers
are not interested in hiring Plaintiff because of his epilepsy or because Plaintiff cannot
provide his own transportation. AR at 62, 209.
In connection with his disability benefits application, on January 24, 2017,
Plaintiff underwent a consultative internal medicine examination by Michael Rosenberg,
M.D. (“Dr. Rosenberg”), AR at 322-24, and 829-32, and a consultative psychiatric
evaluation by psychologist Rebecca Billings, Ph.D. (“Dr. Billings”), AR 326-32. On
February 16, 2017, State agency medical consultant H. Tzetzo, M.D. (“Dr. Tzetzo”),
reviewed Plaintiff’s medical records. AR at 83-95, 98-105. From November 2016 to
September 2018, Plaintiff received cognitive therapy from psychologist Kelly Burkhouse,
Ph.D. (“Dr. Burkhouse”) at Family Services of the Chautauqua Region (“FSCR”). AR at

427-34. Plaintiff underwent two separate psychological assessments Dr. Burkhouse
including on October 28, 2016, AR at 301-310, 334-37, and on July 23, 2018, AR at
334-37. Plaintiff received treatment for his epilepsy from Robert L. Glover, M.D. (“Dr.
Glover”) at University Neurology Inc., at Main – General (“University Neurology”), AR at
435-46, 456-58, 485-87, and on October 3, 2018, Plaintiff underwent a neurological
consultation at University Neurology with board certified clinical neurologist Joy Parrish,
Ph.D., ABPP (“Dr. Parrish”). AR at 460-63. Plaintiff received primary care through
Westfield Family Physicians (“Westfield Family”). AR at 278-300, 348-412.

DISCUSSION

1. Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability
benefits when he 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,4 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).
“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.’” Bonet ex

rel. T.B. v. Colvin, 523 Fed.Appx. 58, 58-59 (2d Cir. 2013) (quoting Brault v. Social Sec.
Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (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.

4 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.
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.
1982). The five steps include (1) whether the plaintiff is currently engaged in substantial
gainful activity (“SGA”), 20 C.F.R. § 404.1520(b) and § 416.920(b); (2) whether the
plaintiff has at least one severe impairment limiting his mental or physical ability to
perform basic work activity, 20 C.F.R. § 404.1520(c) and § 416.920(c); (3) whether the
plaintiff’s severe impairments, considered together, meet or equal a listing in 20 C.F.R.
Part 404, Subpt. P, Appendix 1 of the regulations, and meet the duration requirement of
at least 12 continuous months, 42 U.S.C. §§ 423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R.
§§ 404.1520(d) and 416.920(d), (4) whether the plaintiff, despite his collective

impairments, retains the “residual functional capacity (“RFC”) to perform his past
relevant work (“PRW”), 20 C.F.R. 404.1520(e)-(f), and 416.920(e)-(f), and (5) if the
plaintiff cannot perform his PRW, whether any work exists in the national economy for
which the Plaintiff, given the applicant’s age, education, and past work experience,
“retains a residual functional capacity to perform. . . .” 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 claimant bears the burden of proof for the first four steps of the sequential
analysis, 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). All five steps need not be addressed because 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, the inquiry ceases with the claimant eligible for disability benefits. 20 C.F.R.
§§ 404.1520 and 416.920.
In the instant case, the ALJ found Plaintiff meets the insured status requirements
for SSDI through September 30, 2015, AR at 32, Plaintiff has not engaged in SGA since
June 1, 2015, his alleged disability onset date (“DOD”), id., and has the severe
impairments of seizure disorder, autism spectrum disorder, and affective and anxiety
disorders, id., but that Plaintiff’s diagnosed mathematics learning disorder, right hand
contusion, allergic rhinitis, and vitamin D deficiency are non-severe impairments, id. at
32-33, Plaintiff’s possible alcohol and marijuana abuse are not medically determinable
impairments, id. at 33, and that Plaintiff does not have an impairment or combination of

impairments, including both severe and non-severe impairments, that meets or is
medically equal to the severity of a listed impairment. Id. at 33-34. The ALJ further
found that despite his impairments, Plaintiff retains the RFC for a full range of work at all
exertional levels with some non-exertional limitations including no climbing of ladders,
ropes, or scaffolds, no work involving exposure to unprotected heights, operating a
motor vehicle, or similar equipment such as a forklift, or working with heavy moving
machinery, that mentally Plaintiff is capable of performing simple repetitive work tasks
involving no interaction with the public as part of the essential job duties, as well as only
occasional interaction with supervisors and coworkers, but no team or tandem
collaborative type work, is able to make simple work-related decisions such as
recognizing a safety issue or needing additional supplies, is able to adapt to simple
changes to a work routine such as introduction of a new coworker or supervisor, as well
as physical relocation of a work station within a facility for a shift, and is able to be off-

task up to five minutes an hour while having no impact on daily production expectations.
AR at 34-39. Plaintiff has no PRW, AR at 39, but given his age, education, and ability to
communicate in English, and in the absence of any transferable skills given Plaintiff’s
limited PRW, is able to perform jobs existing in the national economy including as a
hand packager, industrial cleaner, subassembler of electronics, and price marker. AR
at 39-40. As such, the ALJ found Plaintiff was not disabled as defined under the Act at
any time through the date of the ALJ’s decision. Id. at 40.
In support of his motion, Plaintiff argues the ALJ erred beginning at step three of
the five-step sequential analysis by failing to find Plaintiff meets the criteria to be
considered disabled based on Listing Impairment 12.02 pertaining to neurocognitive

disorders, Plaintiff’s Memorandum at 17-23, and at step four, failed to give good
reasons for rejecting Dr. Burkhouse’s July 23, 2018 function-by-function assessment of
Plaintiff’s mental functioning, id. at 23-28, and the ALJ’s focus on Plaintiff’s supposed
willful non-compliance with medications and alcohol abuse was improper in light of
Plaintiff’s neurological, cognitive and psychiatric impairments. AR at 28-29. In
opposition, Defendant argues substantial evidence in the record supports the ALJ’s
finding that Plaintiff’s impairments do not meet the criteria for disability based on Listing
12.02, Defendant’s Memorandum at 15-20, substantial evidence also supports the
weight the ALJ gave to all opinions of record, id. at 5-13, and the ALJ’s consideration of
Plaintiff’s non-compliance with prescribed treatment and alcohol abuse was proper. Id.
at 13-15. In reply, Plaintiff maintains Defendant’s arguments fail to overcome the ALJ’s
clear error requiring remand. Plaintiff’s Reply at 1-6. There is no merit to Plaintiff’s
arguments.

Insofar as Plaintiff maintains the ALJ failed to evaluate Plaintiff’s impairments
under the criteria for Listing Impairment 12.02 (“Listing 12.02”), pertaining to
neurocognitive disorders, Plaintiff’s Memorandum at 17-23, mental disorders are set
forth under category 12.01 of the Listings and include, inter alia and as relevant here,
12.02 (neurocognitive disorders), 12.04 (depressive, bipolar, and related disorders),
12.06 (anxiety and obsessive-compulsive disorders), and 12.10 (autism spectrum
disorders). Disability based on any of these four listed mental disorders requires
satisfying the criteria set forth under two of three paragraphs, being paragraphs A, B
and C. For each of these four listed impairments, the paragraph A criteria specify the
symptoms relevant to the particular impairment, whereas Paragraphs B and C criteria

are the same for Listing Impairments 12.02, 12.04, 12.06, and 12.10.5 Significantly, the
ALJ separately considered whether Plaintiff was disabled only under Listings 12.04,
12.06 and 12.10, but not under Listing 12.02; nevertheless, the ALJ found the medical
evidence in the record failed to establish Plaintiff satisfies the criteria of either paragraph
B or C which are relevant to Listings 12.02, 12.04, 12.06 and 12.10. AR at 33-34. In
particular, the paragraph B criteria requires extreme limitation in one, or marked
limitation in two domains of mental functioning, including the ability to (1) understand,
remember, or apply information; (2) interact with others; (3) concentrate, persist, or

5 The court notes Listing Impairment 12.10 requires satisfying both paragraph A and B criteria, and does
not include the alternative paragraph C criteria.
maintain pace; and (4) adapt or manage oneself. The ALJ found Plaintiff only mildly
limited in his ability to understand, remember or apply information, and moderately
limited in his ability to interact with others, concentrate, persist or maintain pace, and
adapt or manage himself. Thus, the ALJ found Plaintiff does not meet the paragraph B

criteria. The alternative paragraph C criteria require that the particular mental disorder
be “serious and persistent” with a medically documented history of the disorder for at
least two years, with evidence of both (1) medical treatment, mental health therapy,
psychological support, or a highly structured setting that is ongoing and diminishes the
signs and symptoms of the mental disorder, and (2) marginal adjustment, meaning the
claimant has minimal capacity to adapt to changes in the environment or to demands
not already part of the claimant’s daily life. Here, the ALJ found the medical evidence
does not reflect the requisite ongoing medical treatment, mental health therapy,
psychosocial support, or a highly structure setting that diminishes Plaintiff’s symptoms
with marginal adjustment such that Plaintiff does not meet the paragraph C criteria. Id.

at 33-34. Because disability under Listing 12.02 also requires Plaintiff meet the criteria
under paragraph B or C, the ALJ’s failure to specifically analyze Plaintiff’s mental
condition according the Listing 12.02 is harmless error. See Zabala v. Astrue, 595 F.3d
402, 408 (2d Cir. 2010) (declining remand where application of the correct legal
principles could only lead to the same conclusion that the claimant was not disabled).
Accordingly, the ALJ’s failure to separately consider Plaintiff’s mental impairment under
Listing 12.02 does not support remand.
Nor did the ALJ fail to properly evaluate Plaintiff with regard to the paragraph B
criteria, as Plaintiff argues. Plaintiff’s Memorandum at 20-23.6 Plaintiff maintains the
ALJ failed to consider Dr. Parrish’s October 3, 2018 evaluation that establishes Plaintiff
had marked or extreme limitations in the paragraph B domains of understanding,

remembering or applying information and adapting and managing oneself. Id. In
opposition, Defendant argues the ALJ briefly discussed Dr. Parrish’s report in the RFC
analysis, and was not required to separately discuss the two paragraph B domains for
which Plaintiff maintains the criteria are met. Defendant’s Memorandum at 17-18 (citing
cases). Here, a plain review of the record supports that ALJ’s evaluation of the
paragraph B criteria.
In particular, the ALJ considered Dr. Billings’s finding that Plaintiff was unlimited
in his ability to follow and understand simple directions and instructions, independently
perform simple tasks, maintain attention and concentration, learn new tasks, and
independently perform complex tasks. AR at 331-32. The ALJ also considered that

Plaintiff, on his Function Report completed in connection with his disability benefits
applications, reported he can count change, handle a savings account, participate in
such activities as playing a guitar, sing, and play cards. AR at 235. This evidence
supports the ALJ’s finding that Plaintiff is not markedly limited in the paragraph B
domains of understanding, remembering or applying information and adapting and
managing oneself. See McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If

6 Plaintiff’s argument that the ALJ failed to properly evaluate Plaintiff’s mental impairment under
paragraph B is asserted with respect to both consideration of Listing 12.02, as well as consideration of Dr.
Burkhouse’s July 23, 2018 function-by-function assessment.
evidence is susceptible to more than one rational interpretation, the Commissioner’s
conclusion must be upheld.”).
Nor did the ALJ’s failure to give controlling weight to Dr. Burkhouse’s July 23,
2018 function-by-function assessment, AR at 334-37, violate the so-called “treating

physician rule” as Plaintiff argues. Plaintiff’s Memorandum at 23-28. In said function-
by-function assessment, Dr. Burkhouse assessed Plaintiff with moderate to marked
limitations in maintaining social functioning, maintaining concentration, persistence or
pace resulting in failure to complete tasks in a timely manner, and responding
appropriately to supervision and to co-workers, and a severe limitation in responding to
customary work pressures. AR at 427-34.
Under the “treating physician rule,” for disability benefits claims filed, like the
instant claim, prior to March 27, 2017, an opinion from a treating medical source is entitled
to controlling weight so long as the “opinion on the issue(s) of the nature and severity of
[the claimant's] impairment(s) is well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record....” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). See
Crowell v. Comm'r of Soc. Sec. Admin., 705 Fed. Appx. 34, 35 (2d Cir. 2017) (treating
physician's opinion generally entitled to controlling weight when “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and [ ] not inconsistent
with other substantial evidence in the case record.”) (citations omitted). Where, however,
an ALJ discounts a treating physician's opinion, the ALJ must set forth “good reasons” for
doing so. Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) (citing Halloran v. Barnhart,
362 F.3d 28, 33 (2d Cir. 2004)). The failure to provide good reasons for rejecting a
treating physician's opinion is grounds for remand. Halloran, 362 F.3d at 33 (“We do not
hesitate to remand when the Commissioner has not provided ‘good reasons’ for the
weight given to a treating physician opinion and we will continue remanding when we
encounter opinions from ALJ's [sic] that do not comprehensively set forth reasons for the

weight assigned to a treating physician's opinion.”). The opinion of a treating physician
is entitled to significant weight where it is supported by medical evidence in the record,
and to controlling weight where it is “well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence
in the case record.” 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Treating physician
opinions, however, are not determinative and are granted controlling weight only when
they are not inconsistent with other controlling evidence, 20 C.F.R. §§ 404.1527(d),
316.927(d); Halloran, 362 F.3d at 32 (citing Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.
2002)), “‘and the report of a consultative physician may constitute such evidence.’”
Camille v. Colvin, 652 Fed.Appx. 25, 28 (2d Cir. 2016) (quoting Mongeur v. Heckler, 722

F.2d 1033, 1039 (2d Cir. 1983)).
In the instant case, although the ALJ gave significant weight to Dr. Burkhouse’s
earlier psychological assessment rendered October 28, 2016, in which Dr. Burkhouse
found Plaintiff with high functioning autism and moderate mental limitations which
needed to be accommodated in a work setting, AR at 37 (citing AR at 303-06), the ALJ
found Dr. Burkhouse’s later opinion, rendered July 23, 2018, after Dr. Burkhouse
treated Plaintiff for almost two years, was entitled to less weight because it was
inconsistent with the record which supported no more than a moderate limitation in any
one functional category, AR at 37, and substantial evidence supports this finding
including the consultative opinion of Dr. Billings who, after examining Plaintiff on
January 24, 2017, rendered a medical source statement that found no evidence of
limitation with regard to Plaintiff’s ability to follow and understand simple directions and
instructions, independently perform simple tasks, maintain attention and concentration,

maintain a regular schedule, learn new tasks, independently perform complex tasks, or
make appropriate decisions, but moderate limitation in appropriately dealing with stress,
and marked limitation in adequately relating with others. AR at 331-32. Dr. Billings’s
medical source statement is consistent with the ALJ’s RFC determination that limited
Plaintiff to simple, repetitive work tasks involving no interaction with the public,
occasional interaction with supervisors and co-workers, simple work-related decisions,
and simple changes to work routine. AR at 34-35. See Davis v. Comm’r of Soc. Sec.,
2019 WL 1870814, at * 4 (W.D.N.Y. Apr. 26, 2019) (limiting work to occasional
interaction with others accommodated the plaintiff’s marked limitation in interacting with
others); Miller v. Berryhill, 2017 WL 4173357 at * 5-6 (W.D.N.Y. Sept. 20, 2017) (work

limitations attributed to the plaintiff’s stress were adequately accommodated by
restricting the plaintiff to unskilled jobs involving only occasional changes in the work
environment, requiring only occasional work-related decisions and judgment, and not
involving teamwork or collaboration).
The ALJ also found Dr. Burkhouse’s function-by-function assessment of Plaintiff
inconsistent with other evidence in the record, including Dr. Burkhouse’s own treatment
notes showing Plaintiff with normal mood and no anxiety. See, e.g., AR at 361 (May 12,
2017 annual physical noting Plaintiff’s “[m]ood is normal. Affect is normal. Cognition is
normal”); 433 (August 23, 2018 treatment session with Dr. Burkhouse reporting
Plaintiff’s “[m]ood is good”). Further, the ALJ found Plaintiff’s own description of his
activities of daily living to be inconsistent with Dr. Burkhouse’s function-by-function
assessment of the limitations posed by Plaintiff’s mental impairments. See AR at 37
(citing AR at 233 (Plaintiff can clean, perform household repairs, prepare simple meals);

235 (Plaintiff reads, watches television, attends church, plays guitar, sings, plays cards);
282 (Plaintiff worked outside in the yard); and 469 (Plaintiff obtained his GED, assisted
a friend with yard work, plays guitar and performs in a band with his father playing
country western music, reads Latin and attends church where services are delivered in
Latin)). The ALJ found particularly significant that Plaintiff can read and understand
Latin, which abilities were inconsistent with finding Plaintiff’s RFC significantly more
limited than the ALJ’s formulation. See Green v. Comm’r of Soc. Sec., 2018 WL
2269797, at * 3 (W.D.N.Y. May 17, 2018) (it was proper for ALJ to determine the
plaintiff’s activities of daily living were inconsistent with a finding of disability). The ALJ
also commented on Plaintiff’s assertions that his attempts to find work were hampered

by his inability to drive and problems with transportation, AR at 37 (citing AR at 209), a
point which Plaintiff also made during the administrative hearing. AR at 62.
Accordingly, the ALJ’s decision to grant less than controlling weight to Dr. Burkhouse’s
July 23, 2018 function-by-function assessment of Plaintiff’s psychiatric disorder is
supported by substantial evidence in the record.
Nor was the ALJ’s consideration of Plaintiff’s non-compliance with medical
treatment and alcohol abuse improper in the context of Plaintiff’s neurological, cognitive
and psychiatric impairments without addressing whether Plaintiff had the capacity to
control such behaviors, as Plaintiff argues. Plaintiff’s Memorandum at 28-29. As
Plaintiff asserts, “‘[w]hen a claimant suffers from mental illness, faulting him . . . for
failing to pursue mental health treatment is a questionable practice.’” Plaintiff’s
Memorandum at 28 (quoting Phakkhonkham v. Comm’r of Soc. Sec., 346 F.Supp.3d
370, 377 (W.D.N.Y. 2018)). Nevertheless, the record in the instant case is replete with

references to Plaintiff admitting he was repeatedly advised by medical personnel and
understood the need to remain compliant with medications and to control his drinking.
See, e.g., AR at 278 (Plaintiff admitting at June 18, 2015 annual physical at Westfield
Family having a recent epileptic seizure which Plaintiff attributed to being out of his
medication for four days); 353 (January 11, 2017 progress notes from primary care
physician describing Plaintiff as having a “good understanding of medication regimen.
Responding well to prescribed medications”); and 374 (May 21, 2018 annual physical
notes indicating Plaintiff was having grand mal seizures because he was not regularly
taking his prescribed medications, yet describing Plaintiff as having “good
understanding of medication regimen. Responding well to prescribed medications”).

Plaintiff also denied needing reminders to take his medications, AR at 233, and despite
expressing some reluctance to new seizure medication prescribed in July 6, 2017, AR
at 428, by November 2017, Plaintiff was taking the new medication. AR at 429. Plaintiff
also admitted that abusing alcohol contributed to his seizures. AR at 429. On February
23, 2017, Plaintiff reported to Dr. Burkhouse he intended to give up alcohol for Lent to
see if that reduced the frequency of his epileptic seizures. AR at 428. On July 10,
2018, Plaintiff reported he quit drinking which “improved his seizure control and overall
health.” AR at 435. On September 25, 2018, Plaintiff continued to report having
reduced his alcohol consumption. AR at 456. Accordingly, there is no factual basis in
the record supporting Plaintiff’s speculative argument that his mental impairments
rendered Plaintiff unable to comply with his seizure medication management or to
control his drinking.
In short, under the applicable deferential standard of review, there is no basis for

rejecting the facts as found by the ALJ, which support that Plaintiff has the RFC for a full
range of work at all exertional levels with non-exertional limitations to accommodate
Plaintiff’s mental limitations, because “‘a reasonable factfinder would have to conclude
otherwise.’” Bonet ex rel. T.B., 523 Fed.Appx. at 58-59 (quoting Brault, 683 F.3d at 448
(italics in original)). Accordingly, the ALJ’s finding that Plaintiff was not disabled for a
continuous 12-month period commencing June 1, 2015 through the date of the ALJ’s
decision is supported by substantial evidence in the record.

CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 14) is DENIED; Defendant’s

Motion (Dkt. 15) 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: September 16th, 2021
Buffalo, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364185. Public record. Not legal advice.