# Crossley-Johnson v. Commissioner of Social Security

> District Court, W.D. New York · March 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10364809

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 21, 2022
- **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

TORRO C., §
§
Plaintiff, §
§
v. § Case # 1:20-cv-1296-DB
§
COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM
§ DECISION AND ORDER
Defendant. §

INTRODUCTION

Plaintiff Torro C. (“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 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. 17).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). See ECF Nos. 13, 15. Plaintiff also filed a reply brief. See ECF No. 16. For the
reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 13) is
DENIED, and the Commissioner’s motion for judgment on the pleadings (ECF No. 15) is
GRANTED.
BACKGROUND
Plaintiff protectively filed an application for SSI on September 11, 2017, alleging disability
beginning February 13, 2014 (the disability onset date),1 due to cervical and lumbar spine pain and

1 The Court notes that Plaintiff had a prior SSI claim filed on March 30, 2015 and denied on July 22, 2015. Tr. 69.
Plaintiff’s present claim alleges an onset date of February 13, 2014, which overlaps with the prior claim. The ALJ
explained that any reference to evidence during the period of Plaintiff’s prior claim is not a constructive reopening but
used to evaluate the present claim. Id.
nerve damage. Transcript (“Tr.”) 17, 143. Plaintiff’s claim was denied initially on January 10,
2018, after which she requested an administrative hearing. Tr. 17, 80-83. On October 21, 2019,
Administrative Law Judge Stephan Bell (the “ALJ”) conducted a hearing in Buffalo, New York.
Tr. 17. Although informed of her right to representation, Plaintiff chose to appear and testify
without the assistance of an attorney or other representative. Tr. 17, 129. Dawn Blythe, an impartial
vocational expert (“VE”), also appeared and testified by telephone. Tr. 17.

The ALJ issued an unfavorable decision on December 12, 2019, finding that Plaintiff was
not disabled. Tr. 17-27. On July 22, 2020, the Appeals Council denied Plaintiff’s request for further
review. Tr. 1-3. The ALJ’s December 12, 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 December 12, 2019 decision:
1. The claimant has not engaged in substantial gainful activity since September 11, 2017, the
application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: degenerative disc disease of the
cervical and lumbar spine and hypertension (20 CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).
4. The claimant has the residual functional capacity to perform sedentary work as defined in
20 CFR 416.967(a)2 except she can frequently reach overhead and in all directions to the
left, and to the right. The claimant can climb ramps and stairs frequently, never climb
ladders, ropes, or scaffolds, balance frequently, stoop frequently, kneel frequently, crouch
frequently, crawl occasionally. The claimant can never work at unprotected heights, never
around moving mechanical parts, and never operate a motor vehicle. She can never work
in vibration.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on March 18, 1971 and was 46 years old, which is defined as a
younger individual age 45-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has at least a high school education and is able to communicate in English
(20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant
work (20 CFR 416.968).
9. Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since
September 11, 2017, the date the application was filed (20 CFR 416.920(g)).
Tr. 17-26.

2 “Sedentary” work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.
Accordingly, the ALJ determined that, based on the application for supplemental security
benefits protectively filed on September 11, 2017, the claimant is not disabled under section
1614(a)(3)(A) of the Social Security Act. Tr. 27.
ANALYSIS
Plaintiff asserts a single point of error. Plaintiff argues that the ALJ improperly evaluated
the opinion of consultative examiner Samuel Balderman, M.D. (“Dr. Balderman”), and as a result,

the ALJ’s RFC finding was not supported by substantial evidence. See ECF No. 13-1 at 1, 28-35.
The Commissioner argues in response that the ALJ’s finding that Plaintiff can perform a
range of sedentary work was properly based on the medical opinion evidence and other objective
evidence of record, including the medical examination findings and Plaintiff’s improvement with
conservative treatment. See ECF No. 15-1 at 6-14. Accordingly, argues the Commissioner, the
ALJ’s RFC finding was supported by substantial evidence. See 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 adequately
considered the evidence of record, including the medical opinion evidence, the treatment notes,
and the objective findings, and the ALJ’s RFC determination was supported by substantial
evidence.
The record shows that in 2014 Plaintiff reported she was in a motor vehicle accident and
had continued to experience neck and lumbar spine pain thereafter. Tr. 264, 546, 819. In September
2014, she reported she was experiencing back pain one time per week. Tr. 836. An MRI from
February 2016 demonstrated reversal of cervical lordosis; C4-5 posterocentral protrusion type
herniation compressing on the thecal sac and ventral cord; and C5-6 disc bulge compressing the
thecal sac and ventral cord. Tr. 261. An MRI of the lumbar spine from 2016 showed grade I
retrolisthesis at L4-5 and L5-S1; left paracentral posterior disk herniation and associated radial
tear at L4-5; disk bulging at L5-S1; spinal stenosis at L4-5; and neural encroachment at L4-5 and
L5-S1. Tr. 269.

On February 9, 2016, Plaintiff saw Jo J. Reeves, D.C. (“Dr. Reeves”) for an independent
medical evaluation. Tr. 264. She reported she had been in an accident in February 2014 where her
parked car was hit and “upon impact, her head slapped back and forth very hard.” Id. Dr. Reeves
opined that Plaintiff could not lift over 10 pounds, no repetitive bending, twisting, no prolonged
standing or sitting, and ability to change positions as frequently as needed, no arms overhead, no
repetitive pushing or pulling. Tr. 267. Thereafter, Plaintiff underwent chiropractic treatment with
W. Scott Pancake, D.C. (“Dr. Pancake”), although the majority of this medical evidence in the
record, predates the application date of September 11, 2017. Tr. 440-61, 464-503.
On November 20, 2017, Plaintiff had an internal medicine consultative examination with

Dr. Balderman. Tr. 535-38. She reported constant spine pain with only partial relief from
medications. Tr. 535. On examination, Dr. Balderman noted that Plaintiff appeared to be in no
acute distress; she had a normal gait and stance; she used no assistive devices; she could walk on
heels and toes without difficulty but made no effort to squat; she needed no help changing for the
examination or getting on and off the exam table; and she rose from the chair without difficulty.
Tr. 536. Plaintiff had full (5/5) strength in her upper and lower extremities with normal sensation
and reflexes. Tr. 537. She had decreased range of motion in her neck and lower back, but Dr.
Balderman observed that Plaintiff gave “incomplete” effort. Id. He opined that Plaintiff had mild
limitations in changes of the head and mild limitation in bending and lifting with symptom
magnification. Id.
As noted above, Plaintiff argues that the ALJ’s RFC finding was not 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); Social Security Ruling (“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. Oct. 15, 2015), report and
recommendation adopted, 2015 WL 7738047 (N.D.N.Y. Dec. 1, 2015) (“It is the ALJ’s job to
determine a claimant’s RFC, and not to simply agree with a physician’s opinion.”).

Additionally, it is within the ALJ’s discretion to resolve genuine conflicts in the evidence.
See Veino v Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). In so doing, the ALJ may “choose between
properly submitted medical opinions.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998).
Moreover, an ALJ is free to reject portions of medical-opinion evidence not supported by objective
evidence of record, while accepting those portions supported by the record. See Veino, 312 F.3d
at 588. Indeed, an ALJ may formulate an RFC absent any medical opinions. “Where, [] the record
contains sufficient evidence from which an ALJ can assess the [plaintiff’s] residual functional
capacity, a medical source statement or formal medical opinion is not necessarily required.”
Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017) (internal citations and quotation
omitted).
Moreover, the ALJ’s conclusion need not “perfectly correspond with any of the opinions
of medical sources cited in [his] decision,” because the ALJ is “entitled to weigh all of the evidence
available to make an RFC finding that [i]s consistent with the record as a whole.” Matta v. Astrue,
508 F. App’x 53, 56 (2d Cir. 2013) (citing Richardson v. Perales, 402 U.S. 389, 399 (1971) (the

RFC need not correspond to any particular medical opinion; rather, the ALJ weighs and
synthesizes all evidence available to render an RFC finding consistent with the record as a whole);
Castle v. Colvin, No. 1:15-CV-00113 (MAT), 2017 WL 3939362, at *3 (W.D.N.Y. Sept. 8, 2017)
(The fact that the ALJ’s RFC assessment did not perfectly match a medical opinion is not grounds
for remand.).
Furthermore, the burden to provide evidence to establish the RFC lies with Plaintiff—not
the Commissioner. See 20 C.F.R. §§ 404.1512(a), 416.912(a); see also Talavera v. Astrue, 697
F.3d 145, 151 (2d Cir. 2012) (“The applicant bears the burden of proof in the first four steps of the
sequential inquiry . . . .”); Mitchell v. Colvin, No. 14-CV-303S, 2015 WL 3970996, at *4

(W.D.N.Y. June 30, 2015) (“It is, however, Plaintiff’s burden to prove his RFC.”); Poupore v.
Astrue, 566 F.3d 303, 305-06 (2d Cir. 2009) (The burden is on Plaintiff to show that she cannot
perform the RFC as found by the ALJ.).
Contrary to Plaintiff’s contentions, the ALJ in this case properly analyzed the opinion
evidence and the other evidence of record when developing Plaintiff’s RFC. See 20 C.F.R. §§
404.1527, 416.927. 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). Here, Plaintiff filed her claim on September 11, 2017, and therefore, the 2017
regulations are applicable to her claim.
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, the new regulations also alter the way the ALJ discusses
medicalopinions 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 also 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).
In light of these new regulatory changes, Plaintiff’s reliance on case law that reflects the
old “treating physician rule” is misplaced. See, e.g., ECF No. 13-1 at 28-31. The new regulations
supersede any precedent under the “treating physician rule” and instead instruct that the ALJ
cannot defer to medical opinions, regardless of the source, but instead will assess whether a
medical opinion is persuasive (or not), focusing on the most important factors of supportability
and consistency. 20 C.F.R. § 416.920c. In this case, the ALJ properly followed the regulatory
framework in his consideration of Dr. Balderman’s opinion, and substantial evidence supports the
ALJ’s RFC assessment. Tr. 22-25.
After reviewing Dr. Balderman’s opinion in light of the entire record, the ALJ explained
that he found this opinion partially persuasive. Tr. 24-25. The ALJ explained that Dr. Balderman’s

generally unremarkable findings were supported by and consistent with other examination findings
during the period of alleged disability showing that Plaintiff had some pain in her back and neck
with limited range of motion at times, but at other times she displayed full range of motion, and
she consistently had full (5/5) strength; a normal gait and stance; and intact reflexes and sensation.
Tr. 24-25, 771, 856, 862-63, 865-66, 871-75, 878, 880, 893-98, 903-04. Accordingly, the ALJ
limited Plaintiff to sedentary work with only frequent reaching and a range of additional postural
limitations, which is consistent with Dr. Balderman’s opinion that Plaintiff had “mild” limitations
in bending, lifting, or moving her head. Tr. 20-25, 535-37. Furthermore, the ALJ’s sedentary RFC
provides greater limitations than Dr. Balderman’s “mild” findings. See id. The ALJ also reasonably

explained that Dr. Balderman’s opinions were vague in terms of functional limitations, which is
why the ALJ found them only partially persuasive. Tr. 24-25.
Although Plaintiff claims that the ALJ did not adequately account for Dr. Balderman’s
assessment of a “mild” limitation moving her neck, the ALJ explained why the record did not
support greater limitations than those assessed in the RFC. Tr. 22-25. Notably, the ALJ specifically
considered the same evidence in the record that Plaintiff highlights, including her 2016 MRI
showing a disc bulge and herniation, and grade I retrolisthesis. Tr. 22, 260-61, 268-69. The ALJ
also discussed in great detail the examination findings of chiropractor Dr. Pancake showing that
Plaintiff had decreased sensation, neck and back pain, and decreased range of motion. Tr. 22, 440-
61, 464-503. However, the ALJ also explained that many of these findings of pain and decreased
range of motion pre-dated the September 11, 2017 period of alleged disability. Tr. 22.
Moreover, the ALJ’s discussion of the evidence shows that Plaintiff’s symptoms improved
during the period of alleged disability with conservative treatment. Tr. 22-25. For example, the
ALJ explained that during the period of alleged disability, Plaintiff showed increased range of
motion, decreased pain, and improvements on a cervical spine MRI following her conservative

treatment, which included chiropractic care, injections, and medication. Tr. 22-25, 771, 856, 862-
63, 865-66, 871-75, 878, 880, 893-98, 903-04. The ALJ also noted that following an August 2019
MRI of Plaintiff’s cervical spine, Dacia Harris, M.D. (“Dr. Harris”), explained that the MRI
demonstrated some structural abnormalities but there were no severe nerve compressive changes;
no spinal cord compression; no abnormal signal in the spinal cord; and no indication that Plaintiff
needed a cervical spine surgery. Tr. 23, 904.
The ALJ also noted that in January 2019, Plaintiff reported “0% improvement” during an
examination with Dr. Pancake, but Dr. Pancake disagreed and noted that Plaintiff demonstrated
improvement on range of motion testing in her cervical, thoracic, and lumbar spines, and decreased

pain on palpation. Tr. 23, 771. The ALJ also explained that during the period of alleged disability,
Plaintiff generally reported that her pain was only three to six out of 10, and she had improvement
with medication. Tr. 23-24, 679, 682, 685, 688, 690, 696, 771, 856, 862-63, 865-66, 871-75, 878,
880, 893-98, 903-04. Considering the record, the ALJ explained that to account for Plaintiff’s neck
and back pain, he limited her to a reduced range of sedentary work, including lifting no more than
10 pounds, only frequent reaching, and multiple additional postural limitations. Tr. 22-25. Thus,
substantial evidence, including Plaintiff’s improved range of motion and decreased pain with
conservative treatment, supports the ALJ’s finding, which is also consistent with Dr. Balderman’s
“mild” limitations. Tr. 22-25, 771, 856, 862-63, 865-66, 871-75, 878, 880, 893-98, 903-04.
The ALJ also noted the inconsistency of Plaintiff’s statements about the intensity,
persistence, and limiting effects of her symptoms and limitations with the objective evidence in
the record. Further, noted the ALJ, Plaintiff reported a significant range of daily activities,
including frequent travel to and from Florida for treatment, and to care for family members, as
well as travel to and from Washington, D.C. to care for her father. See 20 C.F.R. §
404.1529(c)(3)(i) (An ALJ may consider the nature of a claimant’s daily activities in evaluating

the consistency of allegations of disability with the record as a whole.); see also Ewing v. Comm’r
of Soc. Sec., No. 17-CV-68S, 2018 WL 6060484, at *5 (W.D.N.Y. Nov. 20, 2018) (“Indeed, the
Commissioner’s regulations expressly identify ‘daily activities’ as a factor the ALJ should
consider in evaluating the intensity and persistence of a claimant’s symptoms.”) (citing 20 C.F.R.
§ 416.929(c)(3)(i)); Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (claimant’s abilities to
watch television, read, drive, and do household chores supported ALJ’s finding that his testimony
was not fully credible).
Plaintiff also argues that the ALJ should have afforded greater sitting limitations consistent
with the 2016 opinion of Dr. Pancake, implying that the ALJ used his own lay opinion in finding

that Plaintiff could sit for six hours in an eight-hour workday. See ECF No. 13-1 at 29-35. For the
reasons explained below, Plaintiff’s argument lacks merit.
First, the ALJ’s finding that Plaintiff could sit for six hours per day is consistent with the
finding of state agency physician J. Lawrence, M.D. (“Dr. Lawrence”), who opined that Plaintiff
could perform a range of medium work, which includes the ability to sit for up to six hours in an
eight-hour workday. Tr. 24, 75-77. Despite this, the ALJ assessed greater standing, walking,
lifting, pushing, and pulling restrictions than Dr. Lawrence, limiting Plaintiff to only sedentary
work based on her reported neck and back pain. Tr. 20-25.
Furthermore, as the ALJ’s evaluation of the evidence shows, Dr. Pancake’s 2016 opinion
pre-dated the period of alleged disability, and Plaintiff improved with conservative treatment after
Dr. Pancake issued his 2016 opinion. Tr. 22-25, 771, 856, 862-63, 865-66, 871-75, 878, 880, 893-
98, 903-04. As discussed above, the ALJ explained that Dr. Pancake’s treatment records during
the period of alleged disability show that with conservative treatment, Plaintiff displayed increased
range of motion and decreased tenderness on examinations. Tr. 22-25, 771.

The ALJ also pointed to evidence throughout the record showing that Plaintiff had full
range of motion on other examinations with full (5/5) strength in her upper extremities and no
reports of back pain. Tr. 22-25, 771, 856, 862-63, 865-66, 871-75, 878, 880, 893-98, 903-04. Thus,
the ALJ reasonably explained throughout his discussion of the evidence why he found Dr.
Pancake’s 2016 opinion unpersuasive, as it was not supported by or consistent with the
longitudinal record. Tr. 25. See Martes v. Comm’r of Soc. Sec., 344 F. Supp. 3d 750, 760 (S.D.N.Y.
2018) (“It is within an ALJ’s discretion to resolve ‘genuine conflicts in the medical evidence.’”)
(quoting Veino, 312 F.3d at 588).
Based on the foregoing, the ALJ properly analyzed the medical opinion evidence in

accordance with the Commissioner’s regulations and properly assessed Plaintiff’s RFC. See 20
C.F.R. § 416.946(c) (the responsibility for determining a claimant’s RFC rests solely with the
ALJ); see also Richardson, 402 U.S. at 399 (it is within the sole province of the ALJ to weigh all
evidence and resolve material conflicts); see Galiotti v. Astrue, 266 F. App’x 66, 67 (2d Cir. 2008)
(it is the province of the ALJ to consider and resolve conflicts in the evidence as long as the
decision rests upon “adequate findings supported by evidence having rational probative force”).
Although Plaintiff may identify other evidence in the record that she feels supports her position,
this does not detract from the substantial evidence supporting the ALJ’s findings. See Cage v.
Comm’r of Soc. Sec., 692 F.3d 118, 127 (2d Cir. 2012) (substantial evidence is so deferential “that
there could be two contrary rulings on the same record and both may be affirmed as supported by
substantial evidence”).
As detailed above, substantial evidence in the record supports the ALJ’s RFC finding.
When “there is substantial evidence to support either position, the determination is one to be made
by the fact-finder.” Davila-Marrero v. Apfel, 4 F. App’x 45, 46 (2d Cir. Feb. 15, 2001) (citing
Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)). While Plaintiff may disagree with the ALJ’s

conclusion, Plaintiff’s burden was to show that no reasonable mind could have agreed with the
ALJ’s conclusions, which she has failed to do. The substantial evidence standard is “a very
deferential standard of review – even more so than the ‘clearly erroneous’ standard,” and the
Commissioner’s findings of fact must be upheld unless “a reasonable factfinder would have to
conclude otherwise.” Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012)
(emphasis in the original). As the Supreme Court explained in Biestek v. Berryhill, “whatever the
meaning of ‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not
high” and means only “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations

omitted).
For all the reasons discussed above, the Court finds that the ALJ properly considered the
evidence of record, including the medical opinion evidence, the treatment notes, and the objective
findings, as well as Plaintiff’s significant range of activities, and the ALJ’s findings are supported
by substantial evidence. Accordingly, the Court finds no error.
CONCLUSION
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 13) is DENIED, and the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 15) 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.

A Vine “A /2uevist
DON D. BUS
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364809. Public record. Not legal advice.