Pulvino v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_______________________________________

NICOLE P.,1

DECISION & ORDER

Plaintiff,

20-CV-6576MWP

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_______________________________________

PRELIMINARY STATEMENT

Plaintiff Nicole P. (“plaintiff”) brings this action pursuant to Section 205(g) of the

Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the

Commissioner of Social Security (the “Commissioner”) denying her application for

Supplemental Security Income (“SSI”). Pursuant to the Standing Order of the United States

District Court for the Western District of New York regarding Social Security cases dated June

29, 2018, this case has been reassigned to, and the parties have consented to the disposition of

this case by, the undersigned. (See Docket Entry dated April 6, 2022).

Currently before the Court are the parties’ motions for judgment on the pleadings

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 17, 20). For the

reasons set forth below, this Court finds that the decision of the Commissioner is supported by

substantial evidence in the record and is in accordance with applicable legal standards.

1 Pursuant to the November 18, 2020 Standing Order of the United States District Court for the Western

District of New York regarding identification of non-governmental parties in social security opinions, the plaintiff in

this matter will be identified and referenced solely by first name and last initial.

Accordingly, the Commissioner’s motion for judgment on the pleadings is granted, and

plaintiff’s motion for judgment on the pleadings is denied.

DISCUSSION

I. Standard of Review

This Court’s scope of review is limited to whether the Commissioner’s

determination is supported by substantial evidence in the record and whether the Commissioner

applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)

(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether

the correct legal standards were applied and whether substantial evidence supports the

decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also

Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo

whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s

conclusions are supported by substantial evidence in the record as a whole or are based on an

erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.

§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits

is directed to accept the Commissioner’s findings of fact unless they are not supported by

“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to

any fact, if supported by substantial evidence, shall be conclusive”). Substantial evidence is

defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971) (internal quotation omitted).

To determine whether substantial evidence exists in the record, the court must

consider the record as a whole, examining the evidence submitted by both sides, “because an

analysis of the substantiality of the evidence must also include that which detracts from its

weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent

they are supported by substantial evidence, the Commissioner’s findings of fact must be

sustained “even where substantial evidence may support the claimant’s position and despite the

fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.

Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d

60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).

A person is disabled for the purposes of SSI and disability benefits if he or she is

unable “to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.

§§ 423(d)(1)(A) & 1382c(a)(3)(A). In assessing whether a claimant is disabled, the ALJ must

employ a five-step sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)

(per curiam). The five steps are:

(1) whether the claimant is currently engaged in substantial

gainful activity;

(2) if not, whether the claimant has any “severe impairment”

that “significantly limits [the claimant’s] physical or mental

ability to do basic work activities”;

(3) if so, whether any of the claimant’s severe impairments

meets or equals one of the impairments listed in Appendix

1 of Subpart P of Part 404 of the relevant regulations (the

“Listings”);

(4) if not, whether despite the claimant’s severe impairments,

the claimant retains the residual functional capacity

[(“RFC”)] to perform [his/her] past work; and

(5) if not, whether the claimant retains the [RFC] to perform

any other work that exists in significant numbers in the

national economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.

“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t

step five the burden shifts to the Commissioner to ‘show there is other gainful work in the

national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383

(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).

II. Procedural History

Plaintiff initially filed her claim for SSI on June 13, 2012, alleging disability

beginning on December 30, 2009 based on anxiety, agoraphobia, depression, scoliosis, and

problems in both knees. (Tr. 109-21).2 An ALJ found her to be not disabled on November 1,

2013. (Tr. 126-39). Upon review, the Appeals Council vacated and remanded that decision on

March 10, 2015, finding, among other things, that the ALJ failed to explain the weight assigned

to the August 29, 2012 opinion of consultative examiner Harbinder Toor (“Toor”), MD,

regarding plaintiff’s physical limitations. (Tr. 140-43).

On remand, an ALJ again found plaintiff to be not disabled (Tr. 17-39), a decision

which the Appeals Council affirmed on May 30, 2017 (Tr. 1-6). That decision, however, was

vacated and remanded for further administrative proceedings by United States Magistrate Judge

2 The administrative transcript (Docket ## 13, 14) shall be referred to as “Tr. ___,” and references thereto

utilize the internal Bates-stamped pagination assigned by the parties.

Jonathan Feldman on July 24, 2018. (Tr. 538-48). Judge Feldman’s Decision and Order focused

on the mental health aspects of plaintiff’s claim and determined that the ALJ erroneously

evaluated the opinion of plaintiff’s treating therapist Jana Wachsler-Felder (“Wachsler-Felder”),

PhD, and failed to develop the record regarding Wachsler-Felder’s treatment notes. (Id.).

On subsequent remand, the Commissioner denied plaintiff’s SSI claim on April 8,

2020. (Tr. 501-21). On August 6, 2020, plaintiff commenced this lawsuit relating to the

Commissioner’s most recent denial of her claim. (Docket # 1).

III. The ALJ’s Decision

In his decision, the ALJ followed the required five-step analysis for evaluating

disability claims. Under step one of the process, the ALJ found that plaintiff had not engaged in

substantial gainful activity since June 13, 2012, the application date. (Tr. 504). At step two, the

ALJ concluded that plaintiff had the severe impairments of affective disorder, anxiety disorder,

borderline personality disorder, and posttraumatic stress disorder (“PTSD”). (Id.). The ALJ also

concluded that plaintiff had numerous other impairments but that those impairments were

nonsevere. (Id.). In addition, the ALJ found that plaintiff’s fibromyalgia was not a medically

determinable impairment because “the medical documentation of record d[id] not meet the

requirements of Social Security Regulation 12-2p.” (Id. (referencing Soc. Sec. Ruling 12-2p,

2012 WL 3104869 (2012))). At step three, the ALJ determined that plaintiff did not have an

impairment (or combination of impairments) that met or medically equaled one of the listed

impairments in the Listings. (Id.).

The ALJ concluded that plaintiff retained the RFC to perform a full range of work

at all exertional levels but with certain nonexertional limitations. (Tr. 507). Specifically, the

ALJ limited plaintiff to simple, routine, and repetitive tasks but not at a fast pace, such as work

on a moving assembly line, as well as to only occasional changes in the work setting. (Id.). At

step four, the ALJ found that plaintiff had no past relevant work. (Tr. 512). At step five, the

ALJ determined that other jobs existed in significant numbers in the national economy that,

based on her age, education, work experience, and RFC, plaintiff could perform, such as mail

clerk, housekeeping cleaner, and shipping and receiving clerk. (Tr. 512-13). The ALJ also

found in the alternative that, based on the vocational expert’s testimony, plaintiff could perform

those same jobs “even if [she] were determined to have severe physical impairments and [were]

additionally limited to light work with occasional climbing of ropes, scaffolds or ladders[,]

occasional climbing of ramps or stairs[,] occasional stooping, crouching, balancing, kneeling or

crawling[,] frequent reaching, handling and fingering[,] and frequent pushing and pulling with

the lower extremities.” (Tr. 513 (emphasis in original)). Accordingly, the ALJ found that

plaintiff was not disabled. (Tr. 513-14).

IV. Plaintiff’s Contentions

Plaintiff contends that the ALJ’s determination that she is not disabled is not

supported by substantial evidence and is the product of legal error. (Docket ## 17-1, 21). First,

plaintiff maintains that the ALJ erroneously found that her fibromyalgia was not a medically

determinable impairment at step two. (Docket ## 17-1 at 22-28; 21 at 1-2). Second, plaintiff

argues that the ALJ’s consideration of the May 31, 2019 opinion of plaintiff’s primary care

physician Todd Bingemann (“Bingemann”), MD, ran afoul of the treating physician rule.

(Docket ## 17-1 at 28-33; 21 at 2-3).

V. Analysis

A. The ALJ’s Step-Two Determination Regarding Fibromyalgia

I turn first to plaintiff’s argument that the ALJ erred in finding that fibromyalgia

was not a medically determinable impairment at step two of the sequential analysis. (Docket

## 17-1 at 22-28; 21 at 1-2). Specifically, plaintiff contends that although the ALJ referenced the

appropriate rule when evaluating fibromyalgia at this step, the ALJ “did not correctly apply it.”

(Docket # 17-1 at 22). In plaintiff’s view, the record sufficiently supports the conclusion that her

fibromyalgia qualified as a medically determinable impairment according to the guidance set

forth in Social Security Ruling (“SSR”) 12-2p and resulted in functional limitations that should

have been accounted for in the ALJ’s RFC assessment. (Id. at 22-28). Plaintiff argues that the

ALJ’s finding to the contrary is not supported by substantial evidence. (Id. at 27-28). The

Commissioner counters that plaintiff failed to meet her step-two burden with respect to

fibromyalgia and that the ALJ’s finding that plaintiff’s fibromyalgia was not a medically

determinable impairment was supported by substantial evidence. (Docket # 20-1 at 11-16). For

the reasons discussed below, I agree with the Commissioner.

Disability may be found only if a claimant has a medically determinable

impairment. See 20 C.F.R. § 416.905(a) (“[t]he law defines disability as the inability to do any

substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months”) (emphasis supplied). Such an

impairment must “result from anatomical, physiological, or psychological abnormalities that can

be shown by medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R.

§ 416.921. Therefore, “a physical or mental impairment must be established by objective

medical evidence from an acceptable medical source” and not simply from a claimant’s

“statement of symptoms, a diagnosis, or a medical opinion.” Id. Only after it is established that

a claimant has a medically determinable impairment does the Commissioner “determine whether

[the claimant’s] impairment(s) is severe” at step two of the sequential analysis. Id.; see also

Talbot v. Colvin, 2015 WL 5512039, *4 (N.D.N.Y. 2015) (“[o]nly medically determinable

impairments may be considered severe or non-severe” at step two) (citing 20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii)).

SSR 12-2p “provides guidance on how [the Commissioner] develop[s] evidence

to establish that a person has a medically determinable impairment of fibromyalgia.” Soc. Sec.

Ruling 12-2p, 2012 WL 3104869 at *1. As that ruling notes, fibromyalgia “is a complex

medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or

nearby soft tissues that has persisted for at least [three] months,” and a claimant “can establish

that he or she has a[] [medically determinable impairment] of [fibromyalgia] by providing

evidence from an acceptable medical source,” i.e., “[a] licensed physician (a medical or

osteopathic doctor).” Id. at *2. In general, the Commissioner “cannot rely upon the physician’s

diagnosis alone” in determining whether fibromyalgia is a medically determinable impairment,

and “[t]he evidence must document that the physician reviewed the person’s medical history and

conducted a physical exam.” Id. The Commissioner will “review the physician’s treatment

notes to see if they are consistent with the diagnosis of [fibromyalgia], determine whether the

person’s symptoms have improved, worsened, or remained stable over time, and establish the

physician’s assessment over time of the person’s physical strength and functional abilities.” Id.

SSR 12-2p also identifies “specific criteria” to be considered in evaluating

whether a claimant’s alleged fibromyalgia is a medically determinable impairment. Id.

“[S]pecifically, a physician must diagnose fibromyalgia, the diagnosis cannot be inconsistent

with the other evidence in the case record, and the physician must provide evidence of: (1) a

history of widespread pain, at least eleven positive tender points on physical examination, and

evidence that other disorders that could cause the symptoms or signs were excluded; or (2) a

history of widespread pain, repeated manifestations of six or more fibromyalgia symptoms,

signs, or co-occurring conditions, and evidence that other disorders that could cause these

repeated manifestations were excluded.” Cooper v. Comm’r of Soc. Sec., 2019 WL 1109573, *4

(W.D.N.Y. 2019) (citing Soc. Sec. Ruling 12-2p, 2012 WL 3104869 at *2-3). The first set of

criteria is based on the 1990 American College of Rheumatology (“ACR”) Criteria for the

Classification of Fibromyalgia (the “1990 ACR Criteria”). Soc. Sec. Ruling 12-2p, 2012 WL

3104869 at *2-3. The second is based on the 2010 ACR Preliminary Diagnostic Criteria (the

“2010 ACR Criteria”). Id. at *3.3

Here, after concluding that plaintiff had several severe and nonsevere

impairments at step two, the ALJ determined that plaintiff’s fibromyalgia was “not a medically

determinable impairment.” (Tr. 504). In doing so, the ALJ first acknowledged that fibromyalgia

was noted among the diagnoses assessed by Dr. Bingemann. (Id. (citing Tr. 1158)). The ALJ

observed, however, that the “medical record d[id] not contain any formal rheumatologic

diagnosis of fibromyalgia, evidence of a history of widespread pain, at least 11 positive tender

points over all quadrants of the body [citing Tr. 440, 953], six or more co-occurring fibromyalgia

3 The “history of widespread pain” referenced in both the 1990 ACR Criteria and 2010 ACR Criteria is

defined as “pain in all quadrants of the body (the right and left sides of the body, both above and below the waist)

and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back) – that has persisted (or that

persisted) for at least [three] months[;] [t]he pain may fluctuate in intensity and may not always be present.” Soc.

Sec. Ruling 12-2p, 2012 WL 3104869 at *2-3. In addition, the fibromyalgia “symptoms, signs, or co-occurring

conditions” referenced in the 2010 ACR Criteria include “fatigue, cognitive or memory problems (‘fibro fog’),

waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome,” among many others. Id. at *3

(footnote omitted); see also id. at *3 nn.9, 10, 11.

symptoms, or evidence ruling out other underlying conditions [citing Tr. 1077, 1311].”

(Tr. 504). The ALJ thus concluded that “the medical documentation of record d[id] not meet the

requirements of [SSR] 12-2p, and as such, . . . fibromyalgia [did not] constitute a medically

determinable impairment for the purposes of this decision.” (Id.).

As noted above, plaintiff maintains that this determination is not supported by

substantial evidence. (Docket ## 17-1 at 22-28; 21 at 1-2). Specifically, plaintiff asserts that she

has been diagnosed with fibromyalgia (albeit not by a rheumatologist) and the record evidence

sufficiently demonstrates that she meets the 2010 ACR Criteria outlined in SSR 12-2p. (Docket

# 17-1 at 24).4 In my view, substantial evidence does support the ALJ’s finding at step two that

plaintiff’s fibromyalgia was not a medically determinable impairment, although it is concededly

a close question. See Schillo v. Kijakazi, 31 F.4th 64, 69 (2d Cir. 2022) (“[courts] may vacate

[an ALJ’s] disability determination only if it is based on legal error or unsupported by

‘substantial evidence’ – that is, if no reasonable factfinder could have reached the same

conclusion as the ALJ”); Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012)

(“[t]he substantial evidence standard means once an ALJ finds facts, [reviewing courts] can

reject those facts only if a reasonable factfinder would have to conclude otherwise”) (emphasis in

original) (quotations omitted).

I agree with plaintiff that the ALJ improperly imposed a heightened burden as to

acceptable diagnosticians of fibromyalgia under SSR 12-2p. (See Docket # 17-1 at 24).

Specifically, the ALJ supported his step-two finding by, among other things, observing that the

4 Plaintiff does not contend that the medical record supports a finding that her fibromyalgia constituted a

medically determinable impairment under the 1990 ACR Criteria. (See Docket # 17-1 at 23 n.3 (stating that the

1990 ACR Criteria “is inapplicable, as [p]laintiff never received a tender point examination”); id. at 25 (noting that

plaintiff had “no tender points”)). Although this Court’s review of the record reveals that plaintiff did exhibit some

tender points (see, e.g., Tr. 440, 1301), this Court confines its analysis to the challenge plaintiff articulates – whether

the ALJ correctly applied the 2010 ACR Criteria.

record “does not contain any formal rheumatologic diagnosis of fibromyalgia.” (Tr. 504

(emphasis supplied)). SSR 12-2p, however, does not require a rheumatologist’s diagnosis;

instead, it requires a diagnosis by a “licensed physician,” defined as a “medical or osteopathic

doctor.” Soc. Sec. Ruling 12-2p, 2012 WL 3104869 at *2. Accordingly, the fact that Dr.

Bingemann – a medical doctor – diagnosed plaintiff with fibromyalgia suffices for purposes of

SSR 12-2p. See id.

That does not end the analysis, however, because an ALJ may not “rely upon [a]

physician’s diagnosis alone” in determining whether a plaintiff’s fibromyalgia constitutes a

medically determinable impairment. Id.; see also House v. Comm’r of Soc. Sec., 2016 WL

4275732, *8 (N.D.N.Y. 2016) (“the determination that [plaintiff’s] fibromyalgia was not

medically determinable is dependent upon the medical evidence required by SSR 12-2p, not just

on the diagnoses of her treating physicians[;] [s]ince [plaintiff] failed to provide evidence

demonstrating the SSR’s required criteria, and because the evidence provided by [consultative

examiner] negates them, . . . a diagnosis alone cannot support a finding that [plaintiff’s]

fibromyalgia is medically determinable”). Here, the record did not establish that plaintiff met the

2010 ACR Criteria.

In reaching this determination, the ALJ erred in finding that the record did not

contain evidence of plaintiff’s history of widespread pain or co-occurring fibromyalgia

symptoms. (Tr. 504). As plaintiff points out (see Docket # 17-1 at 25), she did indeed complain

of body pain over the course of many years. (See, e.g., Tr. 405, 416, 379, 439, 953, 1157,

1301-306, 1397). Moreover, the record contains at least some evidence tending to show that

plaintiff experienced certain of the “symptoms, signs, or co-occurring conditions” identified in

SSR 12-2p, such as fatigue (see, e.g., Tr. 375, 1310, 950, 1397), anxiety (see Tr. 504), depression

(see, e.g., Tr. 358, 747, 1246, 1421), headaches (see, e.g., Tr. 1350, 1454, 1397), and memory

and cognitive problems (see, e.g., Tr. 377, 949, 1366-67).

This error notwithstanding, the ALJ correctly determined that the record did not

contain evidence that other disorders that could have been the cause of plaintiff’s symptoms were

excluded (see Tr. 504) – the third requirement of the 2010 ACR Criteria. In this respect, the ALJ

cited an April 25, 2016 treatment note completed by nurse practitioner Gloria Fluellen observing

that not all of plaintiff’s symptoms, including hip, tail bone, and sciatic nerve pain, were

consistent with fibromyalgia (Tr. 1077), as well as a January 19, 2016 treatment note from Anna

Pfahl, MD, indicating that, although plaintiff reported a history of fibromyalgia, her chart

contained “no documentation” of that history (Tr. 1311).

In maintaining that “there was evidence that other disorders which could cause

[the above-detailed] symptoms were excluded,” plaintiff points to diagnostic imaging conducted

of her shoulder, cervical spine, hand, chest, and head, all of which were apparently normal.

(Docket # 17-1 at 27). As the Commissioner counters (see Docket # 20-1 at 14), none of the

cited imaging was conducted in relation to plaintiff’s fibromyalgia, and some of the imaging

results confirmed other causes for plaintiff’s reported pain. For example, following a hand x-ray

in June 2012, plaintiff was diagnosed with a “[h]and sprain and strain.” (Tr. 414-15). In

addition, following x-rays taken of her cervical spine and left shoulder in early July 2012,

plaintiff was diagnosed with a “[m]uscle strain [in her] left shoulder (neck)” (Tr. 373), and Dr.

Stephen Schultz, MD, diagnosed her with patellofemoral pain syndrome and arthritis in her left

shoulder later in July 2012 (Tr. 416-17). Similarly, neither the chest x-ray nor the CT scan of

plaintiff’s head in November 2017 related to fibromyalgia; the chest x-ray was conducted

because of “[upper respiratory infection] symptoms” (Tr. 1177), and the CT scan was performed

following a “fall” and “head injury” (Tr. 1179). In short, none of this evidence (which is the

only evidence relied upon by plaintiff) supports plaintiff’s assertion that other disorders that

could have caused her fibromyalgia symptoms were excluded as is necessary to satisfy the 2010

ACR Criteria.

On this record, I find that the ALJ’s conclusion that plaintiff’s fibromyalgia did

not constitute a medically determinable impairment is supported by substantial evidence. Even

accepting that the ALJ erred by rejecting a diagnosis of the impairment by a non-rheumatologist,

he did not err by concluding that the record lacks evidence of the exclusion of other conditions as

possible causes of plaintiff’s symptoms, which is a requirement under SSR 12-2p. Accordingly,

remand is not warranted on this basis. See, e.g., Bonazelli v. Saul, 2021 WL 791176, *5

(D. Conn. 2021) (ALJ did not err in finding that plaintiff’s alleged fibromyalgia was not a

medically determinable impairment at step two where, despite plaintiff having received a past

diagnosis of fibromyalgia, recent appointments revealed that plaintiff’s doctor “expressed doubt

that [plaintiff] had fibromyalgia, finding that her symptoms were more suggestive of a

somatization disorder or a somatic symptom disorder,” and the doctor did not note on

examination that plaintiff had tender points or six or more fibromyalgia symptoms); Oliveri v.

Saul, 2020 WL 5494733, *6 (D.N.J. 2020) (“[h]ere, the ALJ concluded that the evidence failed

to establish that [p]laintiff’s diagnosed fibromyalgia is a medically determinable impairment[;]

. . . the ALJ specifically found, inter alia, that there was no indication of an effort to rule out

other possible causes for the claimant’s complaints[;] . . . [n]otably, [p]laintiff does not cite to

any evidence that any physician excluded other conditions that could cause [p]laintiff’s

symptoms[;] . . . [b]ased on this record, substantial evidence supports the ALJ’s conclusion at

step two of the sequential evaluation that [p]laintiff’s fibromyalgia is not a medically

determinable impairment”); Tina D. v. Comm’r of Soc. Sec., 2019 WL 5190876, *6 (W.D. Wash.

2019) (no error where ALJ found that plaintiff’s diagnosed fibromyalgia was not a medically

determinable impairment at step two; “[p]laintiff points to diagnoses of fibromyalgia, but fails to

address the problem [the ALJ] noted: [t]he absence of evidence that [p]laintiff’s providers ruled

out other possible conditions prior to diagnosing fibromyalgia[;] . . . [a]ll [p]laintiff has done is

argue that her providers diagnosed her with fibromyalgia[;] . . . [s]he has not pointed to any

evidence showing that these providers ruled out other disorders that could cause her symptoms[;]

[p]laintiff has consequently failed to show that [the ALJ] harmfully erred at step two in finding

that fibromyalgia was not a severe impairment”), aff’d, 844 F. App’x 966 (9th Cir. 2021); Brown

v. Berryhill, 2018 WL 3996426, *3 (W.D.N.Y. 2018) (ALJ properly discounted examining pain

specialist’s diagnosis of fibromyalgia in finding that impairment was not medically determinable

at step two, where pain specialist “simultaneously diagnosed [p]laintiff with [both fibromyalgia

and] osteoarthritis, rather than eliminating [osteoarthritis] as the cause of [p]laintiff’s pain[;] . . .

[i]n both sets of criteria [detailed in SSR 12-2p], SSA requires that a claimant present evidence

that other disorders which could cause the symptoms associated with fibromyalgia have already

been excluded”); Haruch v. Berryhill, 2018 WL 3785406, *3-4 (E.D. Pa. 2018) (affirming ALJ’s

determination that plaintiff’s alleged fibromyalgia was not a medically determinable impairment

at step two because, inter alia, “[p]laintiff presented no evidence to preclude the possibility that

her symptoms were caused by another disorder[;] . . . both [the 1990 ACR Criteria and the 2010

ACR Criteria] require a plaintiff to provide evidence that rules out any other cause for the pain[;]

[i]n this case, [p]laintiff simply failed to do so”); Perkins v. Comm’r of Soc. Sec., 2014 WL

619393, *8 (S.D. Ohio) (no error where ALJ discounted treating physician’s diagnosis of

fibromyalgia and found that impairment to be not medically determinable at step two; “[treating

physician’s] fibromyalgia diagnoses appear to exist in a vacuum[;] [t]here is no evidence that he

engaged in any testing whatsoever in formulating his diagnosis, let alone testing specific focal

points for tenderness[;] [n]or does it appear that [treating physician] attempted to rule out other

conditions through other objective or clinical testing[;] [r]ather, [treating physician] seems to

have labeled plaintiff’s subjective allegations of pain as ‘fibromyalgia’ for lack of a better term[;]

[p]laintiff’s subjective reports alone are insufficient to support this diagnosis”), report and

recommendation adopted by, 2014 WL 1872119 (S.D. Ohio 2014).

B. The ALJ’s Consideration of Dr. Bingemann’s Opinion

I turn next to plaintiff’s contention that the ALJ’s evaluation of Dr. Bingemann’s

opinion contravened the treating physician rule. The gist of plaintiff’s argument is that the ALJ

failed to explicitly consider the appropriate factors of the treating physician rule in weighing Dr.

Bingemann’s opinion and that he did not provide sufficiently “good reasons” in deciding to

afford it less than controlling weight. (Docket ## 17-1 at 28-33; 21 at 2-3). For the following

reasons, I find that remand is not warranted on this basis.

An individual’s RFC is her “maximum remaining ability to do sustained work

activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198

F.3d 45, 52 (2d Cir. 1999) (quoting Soc. Sec. Ruling 96–8p, 1996 WL 374184, *2 (1996)).

When making an RFC assessment, the ALJ should consider “a claimant’s physical abilities,

mental abilities, symptomology, including pain and other limitations which could interfere with

work activities on a regular and continuing basis.” Pardee v. Astrue, 631 F. Supp. 2d 200, 221

(N.D.N.Y. 2009) (citing 20 C.F.R. § 404.1545(a)). “To determine RFC, the ALJ must consider

all the relevant evidence, including medical opinions and facts, physical and mental abilities,

non-severe impairments, and [p]laintiff’s subjective evidence of symptoms.” Stanton v. Astrue,

2009 WL 1940539, *9 (N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff’d, 370

F. App’x 231 (2d Cir. 2010).

An ALJ should consider “all medical opinions received regarding the claimant.”

See Spielberg v. Barnhart, 367 F. Supp. 2d 276, 281 (E.D.N.Y. 2005) (citing 20 C.F.R.

§ 404.1527(d)5). Generally, a treating physician’s opinion is entitled to “controlling weight”

when it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R.

§§ 404.1527(c)(2), 416.927(c)(2); see also Schillo v. Kijakazi, 31 F.4th at 75 (“[t]he opinion of a

claimant’s treating physician as to the nature and severity of the impairment is given controlling

weight so long as it is well supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with (or contradicted by) other substantial evidence in the

claimant’s case record”); Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). Thus, “[t]he

opinion of a treating physician is generally given greater weight than that of a consulting

physician[] because the treating physician has observed the patient over a longer period of time

and is able to give a more detailed picture of the claimant’s medical history.” Salisbury v.

Astrue, 2008 WL 5110992, *4 (W.D.N.Y. 2008).

“An ALJ who refuses to accord controlling weight to the medical opinion of a

treating physician must consider various ‘factors’ to determine how much weight to give to the

opinion.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). The ALJ must explicitly

consider the “Burgess factors”:

(1) the frequency of examination and length, nature, and extent

of the treatment relationship,

5 This regulation applies to claims like plaintiff’s that were filed before March 27, 2017. (See Tr. 109-21

(plaintiff’s claim for SSI was originally filed on June 13, 2012)). For claims filed on or after March 27, 2017, the

rules in 20 C.F.R. § 404.1520c apply.

(2) the amount of medical evidence supporting the opinion,

(3) the consistency of the opinion with the record as a whole,

(4) whether the opinion is from a specialist, and

(5) whatever other factors tend to support or contradict the opinion.

Gunter v. Comm’r of Soc. Sec., 361 F. App’x 197, 199 (2d Cir. 2010) (summary order); see also

Estrella v. Berryhill, 925 F.3d at 95-96 (“[f]irst, the ALJ must decide whether the opinion is

entitled to controlling weight[;] . . . if the ALJ decides the opinion is not entitled to controlling

weight, it must determine how much weight, if any, to give it[;] [i]n doing so, it must ‘explicitly

consider’ the . . . nonexclusive ‘Burgess factors’”). “At both steps, the regulations require the

ALJ to give ‘good reasons’ – i.e., reasons supported by substantial evidence in the record – for

the weight she affords the treating source’s medical opinion.” Schillo, 31 F.4th at 75; see also

Estrella, 925 F.3d at 96 (same) (quoting Halloran v. Barnhart, 362 F.3d at 32); Burgess v.

Astrue, 537 F.3d 117, 129-30 (2d Cir. 2008) (“[a]fter considering the above factors, the ALJ

must comprehensively set forth [his] reasons for the weight assigned to a treating physician’s

opinion[;] . . . [f]ailure to provide such ‘good reasons’ for not crediting the opinion of a

claimant’s treating physician is a ground for remand”) (citations and quotations omitted); Wilson

v. Colvin, 213 F. Supp. 3d 478, 482-83 (W.D.N.Y. 2016) (“an ALJ’s failure to follow the

procedural requirement of identifying the reasons for discounting the opinions and for explaining

precisely how those reasons affected the weight given denotes a lack of substantial evidence,

even where the conclusion of the ALJ may be justified based on the record”) (alterations,

citations and quotations omitted). “This requirement allows courts to properly review ALJs’

decisions and provides information to claimants regarding the disposition of their cases,

especially when the dispositions are unfavorable.” Ashley v. Comm’r of Soc. Sec., 2014 WL

7409594, *1 (N.D.N.Y. 2014) (citing Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)). While an

“ALJ’s failure to ‘explicitly’ apply the Burgess factors when assigning weight” to a treating

source’s opinion is a “procedural error,” if a “searching review of the record” nonetheless

assures the court that “the substance of the treating physician rule was not traversed, [the court]

will affirm” the ALJ’s decision. See Estrella, 925 F.3d at 96 (quotations omitted).

Dr. Bingemann, plaintiff’s primary care physician, began treating plaintiff on

March 29, 2017, and, on May 31, 2019, he completed a “Treating Medical Source Statement

(Physical and Mental).” (Tr. 1301-306). Dr. Bingemann indicated that he had seen plaintiff

three to four times per year since March 2017 and noted that plaintiff carried diagnoses of PTSD,

fibromyalgia, depression, and anxiety. (Tr. 1301). In Dr. Bingemann’s view, plaintiff could not

engage in full-time, competitive employment on a sustained basis because of her symptoms of

anxiety and depression and fibromyalgia-related pain. (Id.). Plaintiff exhibited “tender spots”

and total-body pain, which improved if she could move when needed, but she was generally

intolerant to medication “related to sedation.” (Id.). Dr. Bingemann noted that plaintiff had

emotional factors that contributed to the severity of her symptoms and functional limitations,

such as depression, anxiety, and psychological factors affecting her physical condition, and that

she exhibited the following symptoms:

sleep disturbance; decreased energy; difficulty concentrating or

thinking; generalized persistent anxiety; apprehensive

expectations; vigilance and scanning; recurrent severe panic

attacks manifested by a sudden unpredictable onset of intense

apprehension, fear, terror and sense of impending doom occurring

on the average of at least once a week; and recurrent and intrusive

recollections of a traumatic experience, which were a source of

marked distress.

(Tr. 1302).

Dr. Bingemann also opined regarding plaintiff’s mental ability to function

independently, appropriately, effectively, and on a sustained, consistent, useful, and routine

basis, without direct supervision or undue interruptions or distractions, in a regular, competitive

work setting for more than six consecutive months. (Tr. 1302-303). Specifically, Dr.

Bingemann noted that plaintiff was unable to maintain attention for two-hour segments, maintain

regular attendance and be punctual within customary, usually strict tolerances, complete a

normal workday and workweek without interruptions from psychologically-based symptoms,

respond appropriately to changes in a routine work setting, travel to unfamiliar places or use

public transportation, or deal with normal work stress. (Id.). Moreover, in Dr. Bingemann’s

view, plaintiff could not, for more than twenty percent of an eight-hour workday, remember

work procedures, understand and remember detailed instructions, carry out detailed instructions,

sustain an ordinary routine without special supervision, work in coordination with or proximity

to others without being unduly distracted, make simple work-related decisions, accept

instructions and respond appropriately to criticism from supervisors, get along with coworkers or

peers without unduly distracting them or exhibiting behavioral extremes, be aware of normal

hazards and take appropriate precautions, or set realistic goals or make plans independently of

others. (Id.). Finally, Dr. Bingemann indicated that plaintiff could not, for eleven to twenty

percent of an eight-hour workday, understand and remember very short and simple instructions,

carry out very short and simple instructions, perform at a consistent pace without an

unreasonable number and length of rest periods, ask simple questions or request assistance, and

interact appropriately with the general public. (Id.).

In addition, Dr. Bingemann opined as to plaintiff’s physical functional abilities in

a competitive work situation. He noted that plaintiff could walk one to two city blocks without

rest or severe pain, could sit for fifteen minutes at one time before needing to get up, stand for

fifteen minutes at one time before needing to sit down or walk around, and could only sit and

stand/walk for two hours each in an eight-hour workday. (Tr. 1304). Plaintiff would also

require unscheduled breaks as frequently as every one to two hours for thirty to forty minutes,

during which time plaintiff would have to lie down. (Id.). Dr. Bingemann indicated that plaintiff

could occasionally lift ten pounds, rarely lift less than ten pounds, and never lift more than ten

pounds, and she could rarely twist, stoop (bend), and crouch/squat, but could never climb ladders

or stairs. (Tr. 1304-305). Finally, Dr. Bingemann opined that plaintiff would be off task on

average more than thirty percent of a normal workday/workweek and would be absent from work

on average more than four days per month, all due to her pain and anxiety symptoms.

(Tr. 1305). Dr. Bingemann found that plaintiff also had trouble sleeping and did not get

adequate sleep, which contributed to her difficulties working at a regular job on a sustained

basis. (Tr. 1306).

The ALJ considered this opinion and assigned it “little weight.” (Tr. 509). In

doing so, the ALJ reasoned that Dr. Bingemann “offered little narrative support” and “little

reference to objective medical findings” for limiting plaintiff to “less than a full range of

sedentary work, with excessive time off task and inability to function in several mental

work-related functional areas.” (Id.). The ALJ generally disagreed with Dr. Bingemann’s

opinion regarding plaintiff’s mental limitations and concluded that the record was inconsistent

with more than moderate limitations in the functional areas of concentration and adaption and

with more than mild limitations otherwise. (Id.). The ALJ also found that the “record d[id] not

support Dr. Bingemann’s assessed physical limitations,” concluding that plaintiff’s “[p]hysical

examinations have . . . been largely normal, with only intermittent treatment and conservative

management of symptoms.” (Id.).

Plaintiff contends that the ALJ’s handling of Dr. Bingemann’s opinion did not

comply with the treating physician rule. Specifically, plaintiff points out that the ALJ

completely failed to consider the treating relationship between Dr. Bingemann and plaintiff (the

first Burgess factor), which “left the [ALJ’s] decision unsupported by substantial evidence.”

(Docket # 17-1 at 30). Nor, in plaintiff’s view, did the ALJ provide “good reasons” for

discounting the opinion. (Id. at 30-33). The Commissioner maintains that the ALJ sufficiently

explained the reasons that the opinion was not entitled to controlling weight and, even if he did

not explicitly consider each Burgess factor, a “searching review of the record” nonetheless

supports his determination to discount Dr. Bingemann’s opinion. (Docket # 20-1 at 20-22

(quoting Estrella, 925 F.3d at 95-96)). I agree with the Commissioner.

Unquestionably, the ALJ did not explicitly articulate consideration of each of the

Burgess factors. Significantly, the ALJ did not acknowledge Dr. Bingemann as a treating source

and did not address the frequency of examination and length, nature, and extent of the treating

relationship between Dr. Bingemann and plaintiff. In fact, the ALJ’s decision contains minimal

reference to Dr. Bingemann or his treatment of plaintiff. (See Tr. 501, 504, 508).

I agree with the Commissioner that this procedural error is harmless because “a

searching review of the record assures [the Court] that the substance of the treating physician

rule was not traversed.” Estrella, 925 F.3d at 96 (“[b]ecause the ALJ procedurally erred, the

question becomes whether a searching review of the record assures [the court] that the substance

of the rule was not traversed – i.e., whether the record otherwise provides good reasons for

assigning little weight to [the treating physician’s] opinion”) (alterations and quotations omitted).

For the reasons explained below, I find that the ALJ explicitly considered the weight of evidence

in the record that supports the opinion, as well as the consistency of the opinion with the record

as a whole, and that “the record otherwise provides good reasons for assigning little weight” to

Dr. Bingemann’s opinion. Id.

For example, the ALJ accurately observed that Dr. Bingemann “offered little

narrative support for [his assessed] limitations and little reference to objective medical findings”

(Tr. 509), which is an appropriate reason to discount a medical source opinion. See 20 C.F.R.

§ 416.927(c)(3) (“[t]he better an explanation a source provides for a medical opinion, the more

weight [the Commissioner] will give that medical opinion”). Indeed, aside from Dr.

Bingemann’s conclusory notations that plaintiff experienced “anxiety [and] depressive

symptoms and pain related to [fibromyalgia],” the opinion itself contains little explanation

justifying the rather restrictive limitations he assessed. (See generally Tr. 1301-306). In

addition, Dr. Bingemann provided no explanation or medical or clinical findings to support his

opined mental restrictions. (See Tr. 1303).

Moreover, Dr. Bingemann’s treatment notes for plaintiff provide scarce objective

support for the physical or mental limitations assessed in his medical opinion. Dr. Bingemann

(or someone in his practice) saw plaintiff for appointments multiple times between March 2017

and July 2019. (See Tr. 1148-74, 1445-56). At plaintiff’s first appointment with Dr. Bingemann

on March 29, 2017, she indicated that she had been diagnosed with fibromyalgia six years earlier

and that she had done “some [physical therapy]” to address it, although she “largely had just

dealt with this through the years, walking.” (Tr. 1167). Plaintiff also stated that she had been in

therapy for her depression and anxiety for about twelve years. (Id.). Dr. Bingemann’s

examination of plaintiff was normal: she was “[c]omfortable, healthy-appearing,” had “[n]o joint

swelling or deformities,” and was fully alert and oriented. (Tr. 1171). Thereafter, apart from

plaintiff’s subjective complaints relating to pain, anxiety, and headaches, Dr. Bingemann’s

objective examinations of her continued to be generally unremarkable, and Dr. Bingemann’s

treatment plans appeared inconsistent with the severe limitations detailed in his medical opinion.

(See, e.g., Tr. 1165 (April 19, 2017 treatment note: “[n]o distress” on examination); Tr. 1162

(May 17, 2017 treatment note: “[n]o distress” on examination, and noting that plaintiff was

handling her fibromyalgia pain better with medication, as she was able to walk and “do[] more

and more as weather is breaking”); Tr. 1160 (June 13, 2017 treatment note: “[n]o distress” on

examination, but indicating that plaintiff had a “laceration to head” due to a slip and fall incident,

and that plaintiff was “[d]oing well with therapy” for her PTSD and no change in medication was

needed); Tr. 1157-58 (January 31, 2018 treatment note: “[n]o distress” on examination, but

plaintiff reported “constant pain with fibro[myalgia]” and “bad dreams/flashbacks”); Tr. 1153-55

(March 15, 2018 treatment note: plaintiff presented with vaginal bleeding and abdominal pain,

but her objective findings were otherwise normal, as she “[q]uickly walk[ed] around room with

son, easily moved to exam table” and she demonstrated appropriate psychological findings);

Tr. 1148 (April 11, 2019 treatment note: “[n]o distress” on examination where plaintiff presented

solely for foot pain, images of which were unremarkable); Tr. 1446-47 (April 24, 2019 treatment

note: “[n]o distress” on examination where plaintiff presented for issues relating to her anxiety,

and she indicated a “willing[ness] to start with a very low dose of citalopram with the

reassurance that she would still be able to care for her kids and be under control and hopefully be

even better”); Tr. 1454-55 (July 23, 2019 treatment note: “[n]o distress on examination, and Dr.

Bingemann “[r]eassured [plaintiff] [that her headaches] sound[ed] like migraines and may

improve as her pregnancy proceeds,” noted that plaintiff’s recent complaints of light headedness

were “[r]elated to less intake and recent heat waves . . . , encouraged [plaintiff to eat] some salty

food and eat[] more when [plaintiff was] able and not too nauseated,” “[c]ongratulated [plaintiff]

on getting [reengaged with therapy,] and encouraged her that she will likely feel better when she

is back in therapy and making progress”)). In short, Dr. Bingemann’s own treatment notes do

not appear to support his opinion that plaintiff’s mental and physical impairments would

preclude her ability to “engage in full-time competitive employment on a sustained basis.”

(Tr. 1301).

In addition, the ALJ’s decision reflects that he weighed Dr. Bingemann’s opinion

in view of the record as a whole in concluding that it was not entitled to controlling weight. The

ALJ specifically reasoned that Dr. Bingemann’s assessed physical limitations were not justified

because plaintiff’s “[p]hysical examinations have . . . been largely normal, with only intermittent

treatment and conservative management of symptoms.” (Tr. 509). The ALJ cited notes from the

record demonstrating that plaintiff consistently exhibited “normal gait and station without need

for assistive devices, and full range of motion of all extremities, with normal strength, sensation,

reflexes and coordination.” (Tr. 508 (citing Tr. 383, 406, 440, 467, 1399-1400)). Although the

ALJ recognized that “[s]ome treatment and examination notes have revealed limited range of

motion of the spine and/or positive straight leg raise findings” (id. (citing Tr. 373, 380, 440)), the

ALJ contrasted those findings with the “limited evidence of treatment for back pain [and] few

complaints noted prior to her application date” (id. (citing Tr. 404-405)). Moreover, the ALJ

noted that plaintiff’s diagnostic imaging “has been largely negative, and treatment notes for

physical complaints have been relatively sporadic, without indication of significant intervention

beyond conservative management of intermittent physical symptoms.” (Id.). Moreover, as the

ALJ’s decision suggests, Dr. Bingemann’s restrictive physical limitations were not consistent

with other medical source opinion evidence, such as the September 20, 2019 consultative

internal medicine examination conducted by obstetrician and gynecologist Susan Dantoni

(“Dantoni”), MD, which the ALJ afforded “partial weight.” (Tr. 509, 1397-1406). Unlike Dr.

Bingemann, Dr. Dantoni ultimately found that plaintiff “should avoid lifting and carrying more

than [twenty pounds] due to her pregnancy,” but, aside from possible schedule interruptions due

to fibromyalgia, “[t]here were no other limitations that [could be identified during the] exam.”

(Tr. 1400 (emphasis supplied)).

Read as a whole, the ALJ’s decision also reveals that he accounted for plaintiff’s

mental health treatment in weighing Dr. Bingemann’s opined mental limitations and finding that

“the record . . . is not consistent with more than moderate limitation in concentration and

adaption, [and] with no more than mild limitations, otherwise.” (Tr. 509). In reaching that

conclusion – and by specifically limiting plaintiff in the RFC to “simple, routine and repetitive

tasks, but not at a fast pace, . . . and . . . occasional changes in the work setting” (Tr. 507) – the

ALJ balanced plaintiff’s “consistent . . . recurrent reports of anxiety” with her reports of

functional limitations and her activities of daily living, her consultative examinations, as well as

her mental health treatment notes generally showing “intact memory, average intelligence and

average fund of knowledge,” “cooperative and appropriate behavior,” “concentration and

attention that was normal, good, and within defined limits,” and “thought processes with some

perseveration, and fair to good insight, judgment and impulse control.” (Tr. 505-506). Indeed,

although plaintiff points to mental health treatment notes throughout the record that consistently

reflect anxious, depressed, or abnormal mood and affect (see Docket # 17-1 at 30-31), she fails

to acknowledge that the treatment notes otherwise reflect generally unremarkable findings. (See

generally, e.g., Tr. 747-872 (treatment notes from Unity Mental Health); Tr. 1190-298 (treatment

notes from Strong Behavioral Health)).

Additionally, in formulating the mental portions of the RFC, the ALJ accounted

for other medical source opinion evidence assessing less restrictive limitations than those

assessed by Bingemann. For instance, the ALJ gave “some” or “partial” weight to the opinions

of state examining consultants Dante Alexander, Psy. D., and Christine Ransom, Ph.D. (Tr. 509,

511). Alexander, who conducted a psychiatric evaluation of plaintiff, assessed that although

plaintiff demonstrated mild impairments in attention, concentration, and memory, she had only

mild limitations in sustaining concentration and performing at a consistent pace, as well as mild

limitations regulating her emotions, controlling her behavior and maintaining her well-being.

(Tr. 1366-69). According to Alexander, plaintiff had no evidence of other work-related mental

limitations. (Id.). Similarly, Ransom, who administered intelligence testing to plaintiff, assessed

that, despite some low-average testing results, plaintiff demonstrated no evidence of work-

related mental limitations. (Tr. 428-31).

In sum, I am satisfied that “a searching review of the record assures [the court]

that the substance of the treating physician rule was not traversed” in assigning “little weight” to

Dr. Bingemann’s opinion. Estrella, 925 F.3d at 96. A longitudinal review of plaintiff’s medical

record supports the ALJ’s conclusion that the restrictive limitations contained in that opinion –

including some which would be work preclusive – were not supported by the record evidence.

Accordingly, I find that any error in not explaining his reasoning more fully or explicitly

addressing each Burgess factor was harmless and does not necessitate remand. See, e.g., Bachety

v. Comm’r of Soc. Sec., 2021 WL 371583, *4 (E.D.N.Y. 2021) (“[the court] would have

preferred, and the regulation requires, more elucidation from the ALJ on why she discounted the

entirety of [treating physician’s] opinion[;] [h]owever, on this record, I am confident that a

remand would not result in a different conclusion on [RFC] or disability[;] [a]lthough the ALJ

failed to explicitly consider the factors underlying the treating physician rule, my review of the

record assures me that there were good reasons for assigning little weight to [treating

physician’s] opinion, and thus the procedural error was harmless”); Jedermann v. Comm’r of

Soc. Sec., 2020 WL 5361665, *5 (W.D.N.Y. 2020) (“[i]n the present case, the ALJ committed

procedural error when she did not explicitly apply the Burgess factors while assigning weight to

[treating physician’s] opinion[;] [h]owever, after an independent, ‘searching review’ of the

record as a whole, including both the ALJ’s decision, and [treating physician’s] opinion, the

[c]ourt finds that the substance of the treating physician rule was not traversed in this case[;]

[t]he ALJ’s otherwise thorough opinion allows this court to conclude that the ALJ’s error was

harmless, and her weigh[ing] of [treating physician’s] opinion was based on substantial

evidence”); Fisher v. Comm’r of Soc. Sec., 2020 WL 5757188, *7 (W.D.N.Y. 2020) (“[b]ecause

the ALJ did not explicitly acknowledge the ‘treating physician rule’ or explicitly utilize the

Burgess factors to explain why [treating physician’s] opinions were not entitled to controlling

weight, the [c]ourt finds that the ALJ committed procedural error[;] [t]herefore, the [c]ourt has

conducted ‘a searching review of the record to assure [that [p]laintiff] received the rule’s

procedural advantages[]’[;] [t]his searching review has satisfied the [c]ourt that [treating

physician’s] opinions were not well-supported by clinical findings and w[ere] contradicted by

substantial evidence in the record”) (citations omitted).

CONCLUSION

After a careful review of the entire record, this Court finds that the

Commissioner’s denial of SSI was based on substantial evidence and was not erroneous as a

matter of law. Accordingly, the ALJ’s decision is affirmed. For the reasons stated above, the

Commissioner’s motion for judgment on the pleadings (Docket # 20) is GRANTED. Plaintiff’s

motion for judgment on the pleadings (Docket # 17) is DENIED, and plaintiff’s complaint

(Docket # 1) is dismissed with prejudice.

IT IS SO ORDERED.

s/Marian W. Payson

MARIAN W. PAYSON

United States Magistrate Judge

Dated: Rochester, New York

July 7, 2022