Hauser v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CHRISTOPHER H., §

§

Plaintiff, §

§

v. § Case # 1:20-cv-1463-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Christopher H. (“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 his application for Disability Insurance Benefits (“DIB”) under Title

II of the Act, and his 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. 16).

Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c). See ECF Nos. 13, 14. Plaintiff also filed a reply brief. See ECF No. 15. 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. 14) is

GRANTED.

BACKGROUND

Plaintiff protectively filed his DIB application on July 20, 2017, and his SSI application on

June 21, 2017, alleging disability beginning January 1, 2016, which was later amended to April

10, 2016 (the disability onset date). Transcript (“Tr.”) 12, 137-46. In both applications, Plaintiff

alleged disability due to lower back pain. Tr. 137-46, 162. The claims were denied initially on

October 24, 2017, after which Plaintiff requested a hearing. Tr. 12. On June 4, 2019,

Administrative Law Judge Paul Georger (the “ALJ”) conducted a hearing in Buffalo, New York.

Tr. 12, 28-55. Plaintiff appeared and testified at the hearing and was represented by Nicholas

DiVirgilio, an attorney. Tr. 12. Rachel A. Duchon, an impartial vocational expert (“VE”), also

appeared and testified at the hearing. Id.

The ALJ issued an unfavorable decision on September 4, 2019, finding that Plaintiff was

not disabled. Tr. 12-22. On August 11, 2020, the Appeals Council denied Plaintiff’s request for

further review. Tr. 1-6. The ALJ’s September 4, 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 September 4, 2019 decision:

1. The claimant meets the insured status requirements of the Social Security Act through

December 31, 2021.

2. The claimant has not engaged in substantial gainful activity since April 10, 2016, the

amended onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: degenerative disc disease of the

lumbar spine, osteoarthritis of the left foot and obesity (20 CFR 404.1520(c) and

416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart

P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and

416.926).

5. The claimant has the residual functional capacity to perform sedentary work as defined in

20 CFR 404.1567(a) and 416.967(a)1 CFR 404.1567(a) and 416.967(a) except can never

climb ramps and stairs, never climb ladders, ropes or scaffolds; never balance; occasionally

stoop and never kneel, crouch or crawl.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on February 16, 1985 and was 30 years old, which is defined as a

younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and

416.963).

8. The claimant has a limited education and is able to communicate in English (20 CFR

404.1564 and 416.964).

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.

9. Transferability of job skills is not an issue in this case because the claimant’s past relevant

work is unskilled (20 CFR 404.1568 and 416.968).

10. 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 404.1569, 404.1569a, 416.969, and 416.969a).

11. The claimant has not been under a disability, as defined in the Social Security Act, from

April 10, 2016, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. 12-21.

Accordingly, the ALJ determined that, based on the application for a period of disability

and disability insurance benefits protectively filed on July 20, 2017, the claimant is not disabled

under sections 216(i) and 223(d) of the Social Security Act. Tr. 21. The ALJ also determined that

based on the application for supplemental security benefits protectively filed on June 21, 2017, the

claimant is not disabled under section 1614(a)(3)(A) of the Act. Tr. 21.

ANALYSIS

Plaintiff asserts two points of error. Plaintiff first argues that the ALJ did not properly

consider the opinion of treating physician Peter McQuiller. M.D. (“Dr. McQuiller”) and did not

provide sufficient rationale for finding the opinion only partially persuasive. See ECF No. 13-1 at

1, 10-13. Next, Plaintiff argues that the ALJ erred in evaluating Plaintiff’s subjective complaints.

See id. at 13-16.

In response, the Commissioner argues that the ALJ properly considered Dr. McQuiller’s

opinion in accordance with the applicable regulations. See ECF No. 14-1 at 11-18. Furthermore,

argues the Commissioner, in evaluating Plaintiff’s RFC for a reduced range of sedentary work, the

ALJ considered the totality of the evidence in the record and reasonably found that Plaintiff’s

claims of disabling pain and limitations were not fully supported. See id. at 18-21. Accordingly,

argues the Commissioner, substantial evidence of record, including Plaintiff’s robust activities of

daily living, the medical evidence showing mild diagnostic findings, and the medical opinions

assessing that Plaintiff could engage in light level work, support the ALJ’s RFC finding. See id.at

11-21.

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 thoroughly considered

the medical and other evidence of record and reasonably found that that Plaintiff’s impairments

were not so limiting as to preclude all work. The ALJ’s finding was supported by the prior

administrative findings and opinions of record, two of which essentially found that Plaintiff could

perform work at the light exertional level; diagnostic studies showing, at most, mild findings; and

Plaintiff’s ability to engage in a variety of activities of daily living. The ALJ acknowledged that

the record contained some positive clinical findings but based on the evidence in the record before

him, he reasonably concluded that Plaintiff was capable of performing sedentary work with some

limitations.

As noted above, Plaintiff challenges the ALJ’s RFC analysis and the overall conclusion

that Plaintiff was not disabled. A claimant’s RFC is the most he can still do despite his 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. 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.).

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). Plaintiff filed his applications on July 20, 2017 (Title II) and June 21, 2017 (Title XVI),

and therefore, the 2017 regulations are applicable to his 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 properly analyzed the opinion evidence and

the other evidence of record when developing Plaintiff’s RFC, and substantial evidence supports

the ALJ’s determination that Plaintiff’s musculoskeletal problems did not prevent him from

performing a limited range of sedentary work. Tr. 16-20. See 20 C.F.R. §§ 404.1527, 416.927.

Plaintiff first argues that the ALJ failed to properly evaluate the opinion of treating

physician Dr. McQuiller and did not provide sufficient rationale regarding why he found the

opinion only partially persuasive. See ECF No. 13-1 at 9-13. In a Physical Residual Functional

Questionnaire dated May 31, 2019, Dr. McQuiller diagnosed Plaintiff with chronic low back pain.

Tr. 364. Clinical findings and objective signs included tenderness to the lumbar region on palpation

and positive straight leg raises (“SLR”) of both legs. Id. Dr. McQuiller opined that Plaintiff could

walk two-to-three city blocks without rest or severe pain; could sit for two hours at one time; stand

for 15 minutes at one time; stand and walk for less than two hours in an eight-hour workday; and

sit for two hours total in an eight-hour workday. Tr. 365. Dr. McQuiller also opined that Plaintiff

could lift and carry 10 pounds frequently and 20 pounds occasionally; frequently look down; turn

his head; occasionally twist; rarely crouch/squat, and climb stairs, and could never stoop or climb

ladders. Tr. 366-67. Dr. McQuiller further opined that Plaintiff would sometimes need to take

unscheduled breaks during a workday and rest for 30 minutes before returning to work and needed

to elevate his legs to hip level. Id.

Finally, although noting that Plaintiff was capable of light duty work that did not worsen

his low back pain, Dr. McQuiller opined that Plaintiff’s impairments would cause Plaintiff to be

absent about four to five days a month and that he would not be able to sustain full time

employment. Compare Tr. 365 (opining that Plaintiff was capable of “light duty” work as long as

it did not pose a risk of injury to the lower body) and Tr. 367-38 (stating that Plaintiff would be

absent 4-5 days per month and would be unable to sustain full-time employment at any exertional

level).

The ALJ considered Dr. McQuiller’s opinion and properly found it only partially

persuasive based on the two most important factors of supportability and consistency. Tr. 20. The

ALJ first noted that Dr. McQuiller’s clinical findings and diagnoses (chronic low back pain,

tenderness to the lumbar region and positive SLR tests) were consistent with the record which

showed similar diagnoses and findings. Tr. 20, 364. See 20 C.F.R. §§ 404.1520b(c)(2),

416.920b(c)(2) (consistency) (“The more consistent a medical opinion(s) or prior administrative

medical finding(s) is with the evidence from other medical sources and nonmedical sources in the

claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will

be”).

However, the ALJ reasonably found that many of Dr. McQuiller’s suggested limitations,

including Plaintiff’s needing to be off-task for 30 minutes every hour, the need to elevate his legs

periodically, no stooping/climbing ladders, or being absent four-to-five days each month, exceeded

the limitations supported by the medical evidence. Tr. 20, 365-67. See 20 C.F.R. §§

404.1520b(c)(1), 416.920b(c)(1) (supportability) (“The more relevant the objective medical

evidence and supporting explanations presented by a medical source are to support his or her

medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical

opinions or prior administrative medical finding(s) will be.”). Thus, the ALJ appropriately

followed the regulations in considering Dr. McQuiller’s opinion.

Plaintiff’s suggestion that Dr. McQuiller found positive findings and therefore, his opinion

should have been adopted in its entirety (see ECF. 13-1 at 10-11) is meritless. Contrary to

Plaintiff’s assertion, the ALJ did not cherry-pick the record to find portions of Dr. McQuiller’s

opinion less persuasive. See id. The evidence Plaintiff cites to support his argument is not

inconsistent with the ALJ’s RFC finding for a range of sedentary work, as the ALJ acknowledged

that Plaintiff had some positive findings and accordingly limited him to a range of sedentary work,

the least demanding type of work. 20 C.F.R. §§ 404.1567(a), 416.967(a), Social Security Ruling

(“SSR”) 96-9p; see also 20 C.F.R. Pt. 404, Subpt. P., App’s 2, Sec. 200.00(h)(4) (“‘Sedentary

work’ represents a significantly restricted range of work, and individuals with a maximum

sustained work capability limited to sedentary work have very serious functional limitations.”).

Furthermore, Dr. McQuiller opined that Plaintiff could work as long as it was light duty and did

not involve work that could cause risk of injury to the lower back. Tr. 19-20, 365. Thus, this portion

of Dr. McQuiller’s opinion and the RFC finding are not inconsistent with the ALJ’s RFC

assessment for a limited range of sedentary work.

Moreover, the fact that Plaintiff cites to other evidence in support of his position is of no

consequence under the highly deferential substantial evidence standard of review. Under the

substantial evidence standard of review, it is not enough for Plaintiff to merely disagree with the

ALJ’s weighing of the evidence or to argue that the evidence in the record could support his

position. Plaintiff must show that no reasonable fact finder could have reached the ALJ’s

conclusions based on the evidence in record. See Brault v. Comm’r of Soc. Sec., 683 F.3d 443, 448

(2d Cir. 2012); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (reviewing courts must afford the

Commissioner’s determination considerable deference and cannot substitute its own judgment

even if it might have reached a different conclusion).

As explained above, RFC is an administrative finding, not a medical one. Ultimately, an

ALJ is tasked with weighing the evidence in the record and reaching an RFC finding based on the

record as a whole. See Tricarico v. Colvin, 681 F. App’x 98, 101 (2d Cir. 2017) (citing Matta, 508

F. App’x at 56). The regulations explicitly state that the issue of RFC is “reserved to the

Commissioner” because it is an “administrative finding that [is] dispositive of the case.” 20 C.F.R.

§§ 404.1527(d), 416.927(d). The ALJ “will assess your residual functional capacity based on all

of the relevant medical and other evidence,” not just medical opinions. 20 C.F.R. § 404.1545(a);

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).

Thus, 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).

As the ALJ detailed throughout his decision, although the medical evidence showed some

positive findings (for example, tenderness of the lumbar region and positive SLR tests), Plaintiff

also had normal gait and stance, stable and non-tender joints, and full strength in the upper and

lower extremities. Tr. 17-19. The ALJ also noted that in July 2017, Dr. McQuiller repeatedly noted

that Plaintiff’s low back pain was stable. Tr. 17-18, 283, 336, 352. Nevertheless, the ALJ found

Dr. McQuiller’s opinion partially persuasive as the doctor’s remaining limitations were adequately

accommodated by the RFC for sedentary work with additional postural limitations. Tr. 16, 20. See

Veino, 312 F.3d at 588 (an ALJ may reject portions of a medical opinion not supported by and

even contrary to the objective evidence of record while accepting those portions that are supported

by substantial evidence).

In accordance with the regulations, the ALJ also properly considered Plaintiff’s

conservative treatment for his back pain. Tr. 17. See Rivera v. Colvin, 2015 WL 6142860, at *6

(W.D.N.Y. Oct. 19, 2015) (“[T]he ALJ was entitled to consider conservative treatment as one

factor in determining credibility”) (citing Netter v. Astrue, 272 F. App’x 54, 56 (2d Cir. 2014)).

As the ALJ observed, Dr. McQuiller noted that Plaintiff’s low back pain was stable with current

pain medications. Tr. 17, 283. Furthermore, Plaintiff testified that he had not undergone any

surgery for his back, even though he had discussed it with doctors. Tr. 16, 40.

The ALJ also properly considered Plaintiff’s activities of daily, noting that Plaintiff’s

claims of disabling symptoms and limitations were undermined by his daily activities and hobbies.

Tr. 16. 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, 566 F.3d at 307 (claimant’s abilities to watch

television, read, drive, and do household chores supported ALJ’s finding that his testimony was

not fully credible)). Specifically, the ALJ noted that Plaintiff endorsed ability to help with chores,

cook, and grocery shop, albeit with breaks, and sometimes went to dinner or the movie theatre

with friends and family. Tr. 16, 41-43. As such, the ALJ reasonably concluded that Plaintiff’s wide

range of activities undermined his claims of disabling physical limitations. See 20 C.F.R. §§

404.1529(c)(3), 416.929(c)(3); SSR 16-3p; Poupore, 566 F.3d at 307.

Plaintiff’s last point challenging the ALJ’s evaluation of his subjective complaints is

similarly unavailing. See ECF No. 13-1 at 13-16. Analysis of a claimant’s allegations must be

understood in the contest of the RFC finding and all the evidence relevant to the RFC finding. See

20 C.F.R. §§ 404.1529(d)(4), 404.1545(a), 416.929(d)(4), 416.945(a). “When determining a

claimant’s RFC, the ALJ is required to take the claimant’s reports of pain and other limitations

into account, but is not required to accept the claimant’s subjective complaints without question;

he may exercise discretion in weighing the [reliability] of the claimant’s testimony in light of the

other evidence in the record.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citations omitted).

Additionally, the district court’s review of an ALJ’s assessment regarding subjective complaints

is “sharply limited.” Wright v. Berryhill, 687 F. App’x 45, 49 (2d Cir. 2017). “It is the function of

the [Commissioner], not [reviewing courts], to resolve evidentiary conflicts and to appraise the

credibility of the witnesses, including the claimant.” Aponte v. Sec’y Dep’t of Health and Human

Servs., 728 F.2d 588, 591 (2d Cir. 1984) (quoting Carroll v. Sec’y of Health and Human Servs.,

705 F.2d 638, 642 (2d Cir. 1982)).

In evaluating Plaintiff’s RFC for a reduced range of sedentary work, the ALJ reasonably

evaluated Plaintiff’s allegations and admissions. Tr. 19. As discussed above, the ALJ considered

the totality of the evidence in the record and reasonably found that Plaintiff’s claims of disabling

pain and limitations were not fully supported. Id. The ALJ noted that Plaintiff’s claims of totally

disabling symptoms and limitations were inconsistent with the examination findings, including his

normal gait and stance, full strength, stable and non-tender joints, and the generally mild diagnostic

findings. As also discussed above, the ALJ considered Plaintiff’s robust activities of daily living,

as well as the medical opinions and prior administrative medical findings in the record. Tr. 17-20.

While Plaintiff points to his constant pain (see ECF No. 13-1 at 15), “[a]n individual’s

statement as to pain or other symptoms shall not alone be conclusive evidence of disability . . . .”

42 U.S.C. § 423(d)(5)(A); accord 20 C.F.R. §§ 404.1529(a), 416.929(a) (“Statements about [] pain

or other symptoms will not alone establish that [a claimant is] disabled.”). To be disabling, pain

must be so severe, by itself or in conjunction with other impairments, as to preclude any substantial

gainful employment.” See Prince v. Astrue, 490 F. App’x 399, 400 (2d Cir. 2013) (quoting Dumas

v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983)). Merely pointing out Plaintiff’s symptoms

without referencing correlating medical evidence is therefore insufficient to establish disability. In

any event, the ALJ acknowledged that Plaintiff had symptoms from his conditions and limited him

to a limited range of sedentary work. Tr. 16.

Plaintiff’s arguments thus fail to show that any reasonable factfinder was compelled to

assess greater limitations. See Smith v. Berryhill, 740 F. App’x 721 (2d Cir. 2018) (“Smith had a

duty to prove a more restrictive RFC, and failed to do so.”); Poupore, 566 F.3d at 306. Here,

substantial evidence of record, including Plaintiff’s robust activities of daily living, the medical

evidence including mild diagnostic findings, and the opinions of record assessing that Plaintiff

could engage in light level work, support the ALJ’s RFC finding.

Ultimately, it is Plaintiff who bears the burden of demonstrating functional limitations that

preclude performance of any substantial gainful activity. See 20 C.F.R. § 416.945(a)(3) (the

claimant is responsible for providing the evidence used in the RFC determination); see Poupore,

566 F.3d at 305-06 (The burden is on Plaintiff to show that he cannot perform the RFC as found

by the ALJ.). Plaintiff here failed to meet his burden of proving that no reasonable factfinder could

have reached the ALJ’s findings on this record.

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. As previously noted, 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, 683 F.3d at 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, 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. 14) 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.

Mere A Bure

DON D. BUS

UNITED STATES MAGISTRATE JUDGE

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