# Schroeder v. Commissioner of Social Security

> District Court, W.D. New York · June 6, 2022

URL: https://www.frixlaw.com/law-library/cases/10364967

## Case

- **Court:** District Court, W.D. New York
- **Decided:** June 6, 2022
- **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/10364967

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KELLY S., §
§
Plaintiff, §
§
v. § Case # 1:20-cv-1620-DB
§
COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION
§ AND ORDER
Defendant. §

INTRODUCTION

Plaintiff Kelly S. (“Plaintiff”) brings this action pursuant to the Social Security Act (the
“Act”), seeking review of the final decision of the Commissioner of Social Security (the
“Commissioner”) denying her application for Disability Insurance Benefits (“DIB”) under Title II
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. 14).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). See ECF Nos. 10, 12. Plaintiff also filed a reply. See ECF No. 13. For the reasons
set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 10) is DENIED, and
the Commissioner’s motion for judgment on the pleadings (ECF No. 12) is GRANTED.
BACKGROUND
On December 21, 2017, Plaintiff protectively filed her DIB application alleging disability
beginning July 3, 2017 (the disability onset date), due to a variety of musculoskeletal ailments,
stomach ulcers, and depression. Transcript (“Tr.”) 21, 93, 206. Plaintiff’s claim was denied
initially on April 5, 2018 (Tr. 109-13), after which she requested an administrative hearing (Tr.
119-20). On October 8, 2019, Administrative Law Judge John Benson (the “ALJ”) conducted a
video hearing from Lawrence, Massachusetts. Tr. 21, 42-85. Plaintiff appeared and testified from
Buffalo, New York, and was represented by Rose G. Proto, an attorney. Tr. 21. James L. Soldner,
an impartial vocational expert (“VE”), also appeared and testified at the hearing. Id.
The ALJ issued an unfavorable decision on January 2, 2020, finding that Plaintiff was not

disabled. Tr. 21-35. On October 5, 2020, the Appeals Council denied Plaintiff’s request for further
review. Tr. 1-4. The ALJ’s January 2, 2020 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 January 2, 2020 decision:
1. The claimant meets the insured status requirements of the Social Security Act through June
30, 2022.
2. The claimant has not engaged in substantial gainful activity since July 3, 2017, the alleged
onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease;
degenerative joint disease of the left knee and shoulder; degenerative changes in her
bilateral feet with bunions; osteoarthritis of her left ankle, status post left ankle fracture (20
CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. The claimant had the residual functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a)1 except she requires the option to alternate positions at one[-]hour
intervals, allowing her to remain in the new position for up to five minutes before returning
to her previous position. She can never perform any overhead reaching, but [she] can
frequently reach at and below shoulder height. She can never climb ladders, crawl, or kneel.
She can occasionally stoop and crouch, and frequently balance. She can have no exposure
to workplace hazards or vibration. She can engage in frequent handling.
6. The claimant is capable of performing past relevant work as a Credit Loan Collections
Supervisor and Collections Clerk. This work does not require the performance of work-
related activities precluded by the claimant’s residual functional capacity (20 CFR
404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from
July 3, 2017, through the date of this decision (20 CFR 404.1520(f)).
Tr. 21-35.

1 “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, for the application for a period of disability and
disability insurance benefits, protectively filed on December 21, 2017, the claimant was not
disabled under sections 216(i) and 223(d) of the Social Security Act. Tr. 35.
ANALYSIS

Plaintiff asserts a single point of error. Plaintiff argues that the ALJ failed to consider
Plaintiff’s mental impairments at step two, and therefore, according to Plaintiff, the ALJ erred in
the balance of the sequential evaluation by failing to incorporate any mental limitations into the
RFC finding. See ECF No. 10-1 at 11–16. Plaintiff takes issue with the ALJ’s consideration of the
psychological opinions in the step two section of his decision and argues that the ALJ did not
mention the opined mental limitations or consider any limitations stemming from Plaintiff’s
psychological impairments beyond step two. See id.
The Commissioner argues in response that the ALJ’s RFC finding was supported by
substantial evidence. See ECF No. 12-1 at 13-22. Further, argues the Commissioner, the ALJ
properly evaluated the opinion evidence in determining that Plaintiff’s mental impairments were

not severe at step two; properly considered the evidence of Plaintiff’s mental functioning when
formulating Plaintiff’s RFC; and properly determined that Plaintiff was able to perform her past
relevant work at step four. See id.
The 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 ALJ’s decision and the entire record, the Court finds that the ALJ cited
substantial evidence in support of his conclusion and properly evaluated the medical evidence
pursuant to the new regulations applicable to claims filed after March 27, 2017. The Court also
finds that the ALJ properly determined that Plaintiff’s mental impairments were not severe at step

two, and furthermore, he considered the evidence of Plaintiff’s mental impairments when
formulating the RFC. Accordingly, Plaintiff’s challenges to the final decision of the Commissioner
are without merit.
A claimant’s RFC is the most she can still do despite her limitations and is assessed based
on an evaluation of all relevant evidence in the record. See 20 C.F.R. §§ 404.1520(e),
404.945(a)(1), (a)(3); SSR 96-8p, 61 Fed. Reg. 34,474-01 (July 2, 1996). At the hearing level, the
ALJ has the responsibility of assessing the claimant’s RFC. See 20 C.F.R. § 404.1546(c); SSR 96-
5p, 61 Fed. Reg. 34,471-01 (July 2, 1996); see also 20 C.F.R. § 404.1527(d)(2) (stating the
assessment of a claimant’s RFC is reserved for the Commissioner). Determining a claimant’s RFC
is an issue reserved to the Commissioner, not a medical professional. See 20 C.F.R. §

416.927(d)(2) (indicating that “the final responsibility for deciding these issues [including RFC]
is reserved to the Commissioner”); Breinin v. Colvin, No. 5:14-CV-01166(LEK TWD), 2015 WL
7749318, at *3 (N.D.N.Y. 2015), report and recommendation adopted, 2015 WL 7738047
(N.D.N.Y. 2015) (“It is the ALJ’s job to determine a claimant’s RFC, and not to simply agree with
a physician’s opinion.”).
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.).
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 December 21, 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, but they also alter the way the ALJ discusses them in the text of
the decision. 20 C.F.R. § 416.920c(b)(2). After considering the relevant factors, the ALJ is not
required to explain how he or she considered each factor. Id. Instead, when articulating his or her
finding about whether an opinion is persuasive, the ALJ need only explain how he or she
considered the “most important factors” of supportability and consistency. Id. Further, where a
medical source provides multiple medical opinions, the ALJ need not address every medical
opinion from the same source; rather, the ALJ need only provide a “single analysis.” Id.
Fourth, the regulations governing claims filed on or after March 27, 2017 deem decisions

by other governmental agencies and nongovernmental entities, disability examiner findings, and
statements on issues reserved to the Commissioner (such as statements that a claimant is or is not
disabled) as evidence that “is inherently neither valuable nor persuasive to the issue of whether [a
claimant is] disabled.” 20 C.F.R. § 416.920b(c)(1)-(3) (2017). The regulations 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).
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, and substantial
evidence supports the ALJ’s RFC assessment. See 20 C.F.R. §§ 404.1527, 416.927. The ALJ
properly based his determination that Plaintiff retained the RFC to perform sedentary work on the
assessments of state agency psychological consultant L. Blackwell, Ph.D. (“Dr. Blackwell”), and

consultative psychological examiner Janine Ippolito, Psy.D. (“Dr. Ippolito”), as well as the generally
unremarkable treatment records and notable lack of mental health treatment records, other than from
Plaintiff’s primary care physician. Tr. 25-27.
First, the ALJ properly evaluated the opinion evidence in the record in determining that
Plaintiff’s mental impairments were not severe at step two. At step two, a claimant must first
produce evidence that she has a medically determinable physical or mental impairment(s), which
“must be established by objective medical evidence from an acceptable medical source” rather
than symptoms, diagnoses, or a medical opinion. 20 C.F.R. § 404.1521. When a claimant produces
evidence of a medically determinable impairment, the Commissioner then determines whether the
impairment or combination of impairments is severe. Id.
An impairment or combination of impairments is not severe if it does not significantly limit

your physical or mental ability to do basic work activities. 20 C.F.R. § 404.1522. See 20 C.F.R. §
404.1520(c) (If you do not have any impairment or combination of impairments which
significantly limits your physical or mental ability to do basic work activities, we will find that
you do not have a severe impairment and are, therefore, not disabled.); Social Security Ruling
(“SSR”) 96-3p, Considering Allegations of Pain and Other Symptoms in Determining Whether a
Medically Determinable Impairment is Severe, 1996 WL 374181, at *1 (SSA July 2, 1996); Britt
v. Astrue, 486 F. App’x 161, 163 (2d Cir. 2012) (identifying no error in ALJ’s step two finding of
non-severe impairments, where plaintiff failed to furnish any medical evidence showing how his
impairments limited his ability to work).
The Commissioner’s Rulings further explain that an impairment “is found ‘not severe’ and
a finding of ‘not disabled’ is made at [step two] when medical evidence establishes only a slight

abnormality . . . which would have no more than a minimal effect on an individual’s ability to
work.” SSR 85-28; see Bowen v. Yuckert, 482 U.S. 137, 153 (1987); Dixon v. Shalala, 54 F.3d
1019, 1030 (2d Cir. 1995) (step two is applied to screen out de minimis claims). After a careful
review of the record, the Court finds that ALJ correctly assessed Plaintiff’s severe impairments at
step two.
First, the ALJ reasonably found the opinion of state agency psychological consultant Dr.
Blackwell to be persuasive, noting that it was supported by and consistent with the record. Tr. 25.
Dr. Blackwell concluded that Plaintiff’s mental impairments were at most mild, and were not
severe, given that Plaintiff did not seek mental health treatment throughout the relevant period. Tr.
25, 95. Although Plaintiff testified at her administrative hearing that she recently met with a

counselor on two occasions, she could not remember the counselor’s last name. Tr. 25, 67-68. The
ALJ also noted that Leif Leaf, Ph.D. (“Dr. Leaf”), another psychological consultant, affirmed Dr.
Blackwell’s determination. Tr. 25, 580-81.
The ALJ also reasonably found the opinion of consultative psychological examiner Dr. Ippolito
to be partially persuasive. Tr. 26. Dr. Ippolito found that Plaintiff had no evidence of limitations in
understanding, remembering or applying simple directions and instructions; using reason and judgment
to make work-related decisions; interacting adequately with supervisors, co-workers, and the public;
maintaining personal hygiene and appropriate attire; and demonstrating awareness of normal hazards
and taking appropriate precautions. Tr. 512. Plaintiff had mild limitations in understanding,
remembering or applying complex directions and instructions; and sustaining concentration and
performing tasks at a consistent pace. Tr. 512. Finally, Dr. Ippolito found that Plaintiff had moderate
limitations in sustaining an ordinary routine and regular attendance at work; regulating her emotions
and controlling her behavior; and maintaining her well-being. Tr. 512.
The ALJ explained that he found Dr. Ippolito’s opinion only partially persuasive because her
assessment that Plaintiff would have moderate limitations in her ability to sustain an ordinary routine
and regular attendance at work, regulate emotions, control behavior, and maintain wellbeing were not
supported by the record, especially without any engagement in mental health treatment and no record

of complaints about significant deficits in her mood or difficulty getting along with others. Tr. 26.
Furthermore, noted the ALJ, the state agency consultants reviewed Dr. Ippolito’s opinion and
determined that Plaintiff’s depressive disorder was not a severe impairment. Id. The ALJ ultimately
found the state agency consultants’ review of the record more persuasive than Dr. Ippolito’s single
evaluation. Id. Accordingly, the ALJ reasonably concluded that the record supported none or mild
limitations, but not the moderate limitations assessed by Dr. Ippolito. Id.
Notably, state agency medical consultants are highly qualified physicians who are also experts
in social security disability evaluation, and their opinions are among those an ALJ will consider. 20
C.F.R. § 440.1513a(b)(1); see Christina v. Colvin, 594 F. App’x 32, 33 (2d Cir. 2015) (citing 20
C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i) (“State agency medical and psychological
consultants . . . are highly qualified physicians, psychologists, and other medical specialists who
are also experts in Social Security disability evaluation.”)). Additionally, these non-examining
sources may constitute substantial evidence in support of an ALJ’s decision. See Frye ex rel. A.O.

v. Astrue, 485 F.App’x 484, 487 (2d Cir. Jun. 13, 2012) (“The report of a State agency medical
consultant constitutes expert opinion evidence which can be given weight if supported by medical
evidence in the record.”); Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995) (ALJ not required
to accept the opinion of a treating physician when considering the opinion’s consistency with the
evidence); see also Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993); Burgess v. Astrue, 537
F.3d 117, 128 (2d Cir. 2008).
Furthermore, as noted above, 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.
Barry v. Colvin, 606 F. App’x 621, 624 (2d Cir. 2015) (an ALJ is not bound to include in the RFC
finding every specific limitation assessed by a consultative examiner, and could, instead, exercise

discretion in reviewing the record evidence in its totality); Pellam v. Astrue, 508 F. App’x 87, 90 (2d
Cir. 2013) (consultative examiner’s opinion largely supported the ALJ’s RFC determination even if
ALJ did not credit all of the consultant’s findings); Veino, 312 F.3d at 588 (an ALJ has discretion to
accept or reject various portions of a treating physician’s opinion, based upon substantial evidence in
the record).
The ALJ reasonably found the opinions of Dr. Blackwell and Dr. Ippolito to be persuasive and
partially persuasive, respectively, because their opinion of mild limitations was consistent with the lack
of mental health treatment in the record. Tr. 25-26. As previously noted, Plaintiff testified at her
administrative hearing that she recently met with a counselor on two occasions, but she could not
remember the counselor’s last name. Tr. 25, 67-68. Plaintiff also reported to Dr. Ippolito during her
examination that she had never had any psychiatric hospitalizations, nor did she see any mental health
counselors; however, she reported that she was prescribed psychiatric medication by her primary care
doctor. Tr. 509. In fact, she testified at her hearing that she was unable to work due to neck and back
pain after an injury, but not due to any mental limitations. Tr. 54-56. Similarly, Plaintiff also told Dr.
Ippolito at her consultative examination that she was unable to work due to her back pain, not due to
any mental limitations or impairments. Tr. 509.
Although Plaintiff’s primary care treatment records from Rania Karam-Bayoumi, M.D. (“Dr.

Karam-Bayoumi”), included limited physical examination findings related to Plaintiff’s mental
impairments, these examination findings consistently showed that Plaintiff appeared well-developed
and well-nourished; was in no acute distress, pleasant, cooperative, alert, and oriented to person, place,
and time; had clear conversation, intact judgment and insight, and appropriate mood and affect. Tr.
411, 414, 417, 420, 455-63, 772-790, 1089-93. Furthermore, as the ALJ indicated, Dr. Karam-Bayoumi
noted on two occasions that although Plaintiff had a history of depression and anxiety, her condition
was stable on psychotropic medications, which the record indicates she had been taking for 10-15
years. Tr. 25, 463, 1090. Similarly, Dr. Ippolito observed that Plaintiff was well-groomed, cooperative,

and oriented to person, place, and time; she had adequate social skills and language, appropriate eye
contact, fluent speech, a dysphoric affect, fair insight and judgment, coherent thought processes, and
no hallucinations, delusions, or paranoia; and average cognitive functioning. Tr. 511-12.
In addition, the ALJ properly applied the special psychiatric review technique for the
evaluation of mental impairments. Tr. 26-27. See C.F.R. § 404.1520a. In accordance with the
regulations, the ALJ properly considered Plaintiff’s functioning in the four broad areas of mental
functioning: (i) understanding, remembering, or applying information; (ii) interacting with others; (iii)
concentrating, persisting, or maintaining pace; and (iv) adapting or managing oneself. See 20 C.F.R. §
404.1520a(c)(3). The ALJ determined that Plaintiff had no more than mild limitations in any of the
four functional areas, and her mental impairments were, thus, non-severe. Tr. 26-27; see 20 C.F.R. §
404.1520a(d)(1); see also Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008) (noting that if the degree
of limitation in each of the first three areas of the psychiatric review technique is rated “mild” or better,
and no episodes of decompensation are identified, then the ALJ will generally conclude that the
claimant's mental impairment is not severe and will deny benefits).
The ALJ explained that Plaintiff takes her medication daily, had average cognitive functioning,
was cooperative on examination, keeps in touch with relatives, did not allege any difficulty with
attention or concentration, performed light chores such as cooking, had no issues with personal

grooming, and takes care of her disabled husband. Tr. 26-27. Thus, in accordance with the regulations,
given the lack of evidence of more than “mild” limitations in any of the first three functional areas,
and the lack of evidence of any episodes of decompensation, the ALJ properly concluded that
Plaintiff’s mental impairments were not severe. Tr. 26-27; see 20 C.F.R. § 404.1520a(d)(1) (2016).
It is true that an “RFC determination must account for limitations imposed by both severe
and non-severe impairments.” Parker-Grose v. Astrue, 462 F. App'x 16, 18 (2d Cir. 2012)
(summary order); see also Cardoza v. Comm’r of Soc. Sec., 353 F. Supp. 3d 267, 280 (S.D.N.Y.

2019) (“[T]he ALJ must take into account the cumulative effects of ailments, including those that
are non-severe.”)). However, a “non-severe” impairment is, by definition, a condition which
causes only a “slight abnormality” which would have “no more than a minimal effect on an
individual's ability to work.” Cardoza, 353 F. Supp. 3d at 280. Here, Plaintiff failed to produce
evidence indicating that her mental impairments were sufficiently “severe” to impose more than a
“minimal effect” on her ability to work. See Jones v. Comm’r of Soc. Sec., 2018 WL 3829119, at
*2-3 (W.D.N.Y. Aug. 13, 2018) (rejecting step two argument because plaintiff failed to show how
the claimed impairment “impacted his ability to perform work-related functions”); see also
Sherrill B. v. Comm’r of Soc. Sec., No. 17-CV-754, 2018 WL 4150881, at *9 (N.D.N.Y. Aug. 30,
2018) (“Because the ALJ considered the objective medical evidence, Plaintiff’s daily activities and the

hearing testimony in determining that Plaintiff’s diagnosed depression and anxiety did not impose any
limitations on her RFC, the ALJ’s determination was supported by substantial evidence.”).
Based on the foregoing, the ALJ reasonably did not include any mental limitations in the RFC.
The ALJ’s conclusion was reasonable in this case, given that Plaintiff had no history of any
psychiatric hospitalizations; never sought any mental health treatment; and received her
psychiatric medications from her primary care provider, who noted that her depression was stable.
Tr. 25-26, 463, 509, 1090. Moreover, Plaintiff testified at her hearing that she was unable to work
due to neck and back pain after an injury, not due to any mental limitations or impairments. Tr.
54-56. Similarly, Plaintiff told Dr. Ippolito at her consultative examination that she was unable to
work due to her back pain, but not due to any mental limitations or impairments. Tr. 509.
Accordingly, the ALJ properly evaluated the opinion evidence and other medical evidence of
record, and the Court finds no error.

Although Plaintiff complains about the ALJ’s consideration of the opinion evidence,
opinion evidence is only one type of evidence that an ALJ is required to consider. See 20 C.F.R.
§§ 404.1520(e), 416.920(e) (“we will assess the residual functional capacity based on all the
relevant medical and other evidence in your case record”); 20 C.F.R. §§ 404.1545(a)(3),
416.945(a)(3) (explaining that the adjudicator will assess the RFC based on all the relevant
evidence in the case record); 20 C.F.R. §§ 404.1513(a)(1),(4), 416.913(a)(1),(4) (explaining that
evidence that can be considered includes objective medical evidence, such as medical signs and
laboratory findings; as well as evidence from nonmedical sources, including the claimant, such as
from forms contained in the administrative record). Matta, 508 F. App’x at 56 (“Although the
ALJ’s conclusion may not perfectly correspond with any of the opinions of medical sources cited

in his decision, he was entitled to weigh all of the evidence available to make an RFC finding that
was consistent with the record as a whole.”). Furthermore, it is the responsibility of the ALJ to
resolve conflicts in the evidence and to weigh the evidence available to make an RFC finding that
is consistent with the record as a whole. See Corbiere v. Berryhill, 760 F. App’x 54, 57 (2d Cir.
2019) (holding that the ALJ properly resolved conflicts in the medical evidence after considering
the record in its entirety).
In addition to considering Plaintiff’s treatment records and the medical opinion evidence, the
ALJ in this case properly considered Plaintiff’s daily activities, noting that during the relevant period,
she was able to maintain her own personal grooming, shower, clean the house, do laundry, prepare
meals on a daily basis, wash dishes, mow the lawn, shop, watch television, pay her bills, and take care
of her dogs and disabled husband. Tr. 25-27, 227-29, 512. See 20 C.F.R. § 404.1529(c)(3)(i),
(adjudicator properly considers the individual’s daily activities); SSR 16-3p; see also Cichocki v.
Astrue, 729 F.3d 172, 178 (2d Cir. 2013) (holding that Plaintiff’s activities of daily living was an
important indicator of her true level of physical functioning).
The ALJ also discussed Plaintiff’s treatment modalities. See 20 C.F.R. § 404.1529(c)(3)(iv)-
(v) (adjudicator properly considers the treatment modalities utilized, and the effectiveness of treatment
to relieve pain and other symptoms). As previously discussed, the ALJ noted that Plaintiff did not

receive mental health treatment during the relevant period and received her psychotropic medications
from her primary care provider, who noted that Plaintiff’s depression was stable. Tr. 25-26, 509, 463,
1090. Accordingly, the ALJ reasonably concluded that Plaintiff’s lack of engagement in mental health
treatment and stability on medication did not support significant limitations in her ability to perform
basic work activities. Tr. 25. T
he fact that a plaintiff received only conservative treatment is evidence that can weigh against
allegations of disabling symptoms. See Penfield v. Colvin, 563 F. App'x 839, 840 (2d Cir. 2014); Netter
v. Astrue, 272 F. App’x 54, 56 (2d Cir. 2008). Similarly, a claimant’s allegations of disability are
undermined by a failure to seek regular treatment for the claimant’s allegedly disabling conditions.
Naval v. Astrue, 303 F.App’x 18, 20 (2d Cir. Dec. 16, 2008) citing Arnone v. Bowen, 882 F.2d 34, 39
(2d Cir. 1989); see also Salvaggio v. Apfel, 23 F.App’x 49, 51 (2d Cir. Nov. 6, 2001) (“the result of
the plaintiff’s choice to seek only minimal medical attention of her symptoms . . . supports the finding
that the plaintiff was not under a disability”). Thus, Plaintiff’s daily activities and treatment modalities
do not support a finding that Plaintiff’s condition is disabling. Accordingly, the ALJ properly
considered the totality of the evidence in the record and properly weighed the medical opinion evidence
when determining Plaintiff’s RFC finding, and in concluding that mental limitations were not
warranted in the RFC.
Plaintiff also argues that the ALJ erred in finding that she was capable of past relevant work.
See ECF 10-1 at 15-16. At step four, the ALJ determined that Plaintiff could perform her past relevant
work as a Credit Loan Collections Supervisor and Collections Clerk. Tr. 34-35, 80-81. 20 C.F.R. §
404.1560(b); SSR 96-8p, 1996 WL 374184. In so doing, the ALJ properly acted within his discretion
in consulting a vocational expert. 20 C.F.R. § 404.1560(b)(2) (“a vocational expert may offer expert
opinion testimony in response to a hypothetical question about whether a person with the physical and
mental limitations imposed by the claimant’s medical impairments can meet the demands of the

claimant’s previous work”). In this case, the ALJ asked the VE to assume an individual with the same
vocational profile and RFC as Plaintiff. Tr. 79-80. The expert testified that such an individual could
perform Plaintiff’s past relevant work as a Credit Loan Collections Supervisor and a Collections Clerk.
Tr. 34-35, 79-80.
Plaintiff contends that the ALJ was required to make an alternative step five finding based on
the VE’s response to an additional assumption regarding “any unskilled jobs that would fit within the
last hypothetical.” Tr. 81. Plaintiff contends that because these other unskilled jobs “require frequent
reaching, which is outside the bounds of the RFC the ALJ found,” the ALJ was required to include an
alternative step five finding to account for this limitation. See ECF No. 10-1 at 15. However, Plaintiff’s
argument that the step five finding did not adequately account for this purported limitation is
merely a rehash of her challenge to the ALJ’s RFC finding. As discussed above, the ALJ properly
evaluated the opinion evidence of record in determining that Plaintiff’s mental impairments were not
severe at step two. Furthermore, Plaintiff has failed to provide any evidence that her mental
impairments would have any more than a minimal effect on her to work. See Cardoza, 353 F. Supp.
3d at 280. Thus, the ALJ’s RFC finding accounts for all of Plaintiff’s credibly established

limitations, and the record does not compel any reasonable factfinder to have assessed greater
restrictions. See McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (stating that under the
substantial evidence standard of review, it is not enough for claimant to offer a different
interpretation of the evidence, he must demonstrate that no reasonable factfinder could have
weighed the evidence as the ALJ did in his decision).
The ALJ may rely on the opinion of the vocational expert when, as here, the hypothetical posed
is supported by substantial evidence. See Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109, 114 (2d

Cir. 2010) (court found that ALJ properly posed hypothetical question to the vocational expert when
that hypothetical was based on ALJ’s correct RFC assessment); Dumas v. Schweiker, 712 F.2d 1545,
1554 (2d Cir. 1983) (same). Accordingly, because the VE opined that Plaintiff could perform her past
relevant work, the ALJ did not err.
For all the reasons discussed above, the Court finds that 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).
CONCLUSION
Plaintiff's Motion for Judgment on the Pleadings (ECF No. 10) is DENIED, and the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 12) 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.

Lire A (uvvrt
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

20

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364967. Public record. Not legal advice.