Wolfe v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

AMANDA W., §

§

Plaintiff, §

§

v. § Case # 1:20-cv-1647-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Amanda W. (“Plaintiff”) brings this action pursuant to the Social Security Act (the

“Act”), seeking review of the final decision of the Commissioner of Social Security (the

“Commissioner”), that denied her application for Disability Insurance Benefits (“DIB”) under

Title II of the Act, and her application for supplemental security income (“SSI”) under Title XVI

of the Act. See ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g),

1383(c), and the parties consented to proceed before the undersigned in accordance with a standing

order (see ECF No. 12).

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

Procedure 12(c). See ECF Nos. 9, 10. Plaintiff also filed a reply brief. See ECF No. 11. For the

reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 9) is DENIED,

and the Commissioner’s motion for judgment on the pleadings (ECF No. 10) is GRANTED.

BACKGROUND

Plaintiff protectively filed applications for DIB and SSI on December 14, 2017, alleging

disability beginning February 5, 2014, (the disability onset date), due to herniated discs and other

musculoskeletal impairments, trouble sleeping, bipolar, and mood swings. Transcript (“Tr.”) 202-

08, 222-29, 251. The claims were denied initially on April 17, 2018, after which Plaintiff requested

a hearing. Tr. 12. On December 6, 2019, Administrative Law Judge Ellen Parker Bush (the “ALJ”)

conducted a video hearing in Lawrence, Massachusetts. Tr. 12. Plaintiff appeared and testified

from Buffalo, New York, and was represented by Megan Kale, an attorney. Tr. 12. Vanessa J.

Ennis, an impartial vocational expert (“VE”), also appeared and testified telephonically. Id.

The ALJ issued an unfavorable decision on February 4, 2020, finding that Plaintiff was not

disabled. Tr. 12-24. On September 16, 2020., the Appeals Council denied Plaintiff’s request for

further review. Tr. 1-6. The ALJ’s February 4, 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 her February 4, 2020 decision:

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

30, 2016.

2. The claimant has not engaged in substantial gainful activity since February 5, 2014, the

alleged 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, history of left knee surgery, depressive disorder and anxiety disorder. (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 light work as defined in 20

CFR 404.1567(b)1 except standing/walking, each function, six hours total out of an eight-

hour workday. Additionally, the claimant is limited to occasional pushing or pulling with

the left lower extremity, occasional stooping, kneeling, crouching or crawling and the

claimant is limited to occasional climbing of ramps, stairs, ladders, ropes or scaffolds. The

claimant must avoid concentrated exposure to extreme heat or cold temperatures and avoid

concentrated exposure to respiratory irritants and unprotected heights. Mentally, the

claimant can understand and remember simple and some detailed information but can

sustain attention and focus well enough to complete only simple tasks and can adapt to

simple, routine changes in task.

6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on January 25, 1986 and was 28 years old, which is defined as a

younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and

416.963).

8. The claimant has at least a high school education and is able to communicate in English

(20 CFR 404.1564 and 416.964).

1 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing

up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal

of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg

controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the

ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or she

can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit

for long periods of time.” 20 C.F.R. § 404.1567(b).

9. Transferability of job skills is not an issue because the claimant does not have past relevant

work (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, 404.1569(a), 416.969, and 416.969(a)).

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

February 5, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. 12-24.

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

and disability insurance benefits protectively filed on December 14, 2017, the claimant is not

disabled under sections 216(i) and 223(d) of the Social Security Act. Tr. 24. The ALJ also

determined that based on the application for supplemental security benefits protectively filed on

December 14, 2017, the claimant is not disabled under section 1614(a)(3)(A) of the Act. Id.

ANALYSIS

Plaintiff asserts a single point of error. Plaintiff argues that the ALJ failed to properly

evaluate the opinion of consulting psychiatric examiner Janine Ippolito, Psy.D. (“Dr. Ippolito”).

See ECF No. 9-1 at 10-14. Specifically, Plaintiff argues that despite finding Dr. Ippolito’s opinion

partially persuasive, the ALJ failed to reconcile the RFC with the moderate limitations in

adaptation provided in the opinion, and therefore, the RFC is not based on substantial evidence.2

See id.

In response, the Commissioner argues that the ALJ properly evaluated Dr. Ippolito’s

opinion when determining Plaintiff’s mental RFC finding, and Plaintiff did not meet her burden

2 The Court notes that Plaintiff does not challenge the ALJ’s consideration of her physical impairments. See generally

ECF No. 9-1. Thus, the Court declines to address the ALJ’s physical RFC findings in this opinion. See Poupore v.

Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (issues not sufficiently argued in the briefs are considered waived and

normally will not be addressed on appeal); see also Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001) (“It is a

settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.”).

of proving that she has mental limitations that exceed the ALJ’s RFC finding. See ECF No. 10-1

at 9-18.

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 evidence of record, and her finding that Plaintiff retained the mental capacity for unskilled

work was supported by a variety of evidence, including the clinical findings of record, the opinions

of Dr. Ippolito and state agency psychologist T. Bruni, Ph.D. (“Dr. Bruni”), that Plaintiff had no

more than mild-to-moderate mental limitations, as well as Plaintiff’s wide range of daily activities.

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. 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 her applications on December 14, 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 finding. Tr. 18. See 20 C.F.R. §§ 404.1527, 416.927.

Plaintiff argues that despite finding Dr. Ippolito’s opinion partially persuasive, the ALJ

failed to reconcile the RFC with the moderate limitations in adaptation provided in the opinion,

and therefore, the RFC is not based on substantial evidence. See ECF No. 9-1 at 10-14. Plaintiff is

mistaken. Contrary to Plaintiff’s contention that the ALJ erred because she did not specifically

explain how she considered Dr. Ippolito’s finding that Plaintiff had moderate limitations in

adaptation, the ALJ was not required to state on the record every reason justifying her decision.

Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (“An ALJ’s failure to cite

specific evidence does not indicate that such evidence was not considered.”) (internal quotation

marks and citations omitted); see also Petrie v. Astrue, 412 F. App’x 401, 407 (2d Cir. 2011)

(“[W]here the evidence of record permits us to glean the rationale of an ALJ’s decision, we do not

require that [s]he have mentioned every item of testimony presented to [her] or have explained

why [s]he considered particular evidence unpersuasive or insufficient to lead [her] to a conclusion

of disability.”). The fact that the ALJ did not expressly discuss the specific portion of Dr. Ippolito’s

opinion highlighted by Plaintiff does not negate the substantial evidence that supports the ALJ’s

RFC finding, as discussed further below.

As noted above, Plaintiff underwent an evaluation with consultative psychologist Dr.

Ippolito on March 1, 2018, Tr. 521-26. Plaintiff was cooperative and her manner of relating, social

skills, and overall presentation were adequate. Tr. 523. Motor behavior was normal and eye contact

was appropriate; speech intelligibility was fluent; and thought processes were coherent and goal

directed with no evidence of hallucinations, delusions or paranoia. Id. Plaintiff’s affect was

dysphoric, and she reported feeling “blah” that day. Id. Sensorium was clear, and she was fully

alert and oriented. Id. Her attention and concentration were impaired due to suspected difficulties

with two-step math calculations and serial 7s, but she was able to complete serial 3s and do one-

step calculations without errors. Tr. 523-24. Memory skills were intact and intellectual functioning

was estimated to be below average. Tr. 524. Insight and judgment were fair. Id.

Based on Plaintiff’s reported history and the mental status evaluation findings, Dr. Ippolito

opined that Plaintiff had no limitations in her ability to understand, remember or apply simple

directions and instructions; use reason and judgment to make work-related decisions; sustain

concentration and perform a task at a consistent pace; sustain an ordinary routine and regular

attendance at work; maintain personal hygiene and appropriate attire; demonstrate awareness of

normal hazards and take appropriate precautions. Tr. 524. She had a mild limitation in her ability

to interact adequately with supervisors, co-workers, and the public. Tr. 524. Plaintiff had a mild-

to-moderate limitation in her ability to understand, remember or apply complex directions and

instructions and a moderate limitation in her ability to regulate emotions, control behavior and

maintain well-being. Tr. 524-25. The ALJ found Dr. Ippolito’s opinion partially persuasive

reasoning that “[t]he weight of clinical evidence and activities of daily living, including raising

four children at home, is consistent with basic cognitive and social function and provides

insufficient evidence for limitations beyond those reflected in the [RFC], including simple and

some detailed tasks.” Tr. 22.

On March 26, 2018, state agency psychologist Dr. Bruni reviewed the available evidence,

including Dr. Ippolito’s report, and opined that it was insufficient to evaluate Plaintiff’s DIB claim

(with a date last insured of June 30, 2016) but found that for purposes of the SSI claim, Plaintiff

had severe mental impairments that resulted in a moderate limitation in the ability to understand,

remember or carry out detailed instructions. Tr. 22, 72-73, 81-83. Dr. Bruni also found that

Plaintiff had only a mild limitation in her ability to adapt or manage oneself, i.e., in her ability to

regulate emotions, control behavior and maintain well-being in a work-setting. Tr. 82. See 20

C.F.R. Part 404, Subpart P, App. 1, 12.00(E)(4). The ALJ found Dr. Bruni’s opinion to be partially

persuasive and relied on it, in part, to determine Plaintiff’s RFC. Tr. 22.

Contrary to Plaintiff’s assertion (see ECF No. 9-1 at 10-14), finding an opinion partially

persuasive does not mean that the ALJ rejected the opinion, nor does it require the ALJ to adopt

the entirety of the opinion. See Barry v. Colvin, 606 F. App’ x 621, 624 (2d Cir. 2015) (ALJ’s RFC

finding need not include every limitation assessed by a consultative examiner, and ALJ could,

instead, exercise discretion in reviewing the record evidence in its totality). Moreover, an ALJ is

permitted to craft an RFC based on medical records and other evidence, without a supportive

medical opinion at all. See, e.g., Corbiere v. Berryhill, 760 F. App’x 54, 56-57 (2d Cir. 2019)

(summary order) (affirming ALJ’s physical RFC assessment based on objective medical

evidence); Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8-9 (2d Cir. 2017) (summary order)

(affirming where ALJ rejected sole medical opinion in record speaking to mental functioning);

Johnson v. Colvin, 669 F. App’x 44, 46-47 (2d Cir. 2016) (summary order) (affirming where ALJ

relied on variety of evidence including claimant’s testimony and doctor’s letter vaguely asserting

severe limitations but noting improvement).

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.

In this case, the ALJ reasonably incorporated the opinions of Dr. Ippolito and Dr. Bruni

into the RFC finding by limiting Plaintiff to understanding and remembering simple and some

detailed information but sustaining attention and focus well enough to complete only simple tasks,

and the ability to adapt to simple, routine changes in task. Tr. 18. See Mongeur v. Heckler, 722

F.2d 1033, 1039 (2d Cir. 1983) (medical opinions of consultative examining physicians can

constitute substantial evidence); Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011) (same);

Frye ex rel. A.O. v. Astrue, 485 F. App'x 484, 487 (2d Cir. 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.”).

In addition, many courts in this Circuit (including this Court) have found mild-to-moderate

mental limitations are adequately addressed by RFC limitations similar to those found by the ALJ

here and are not disabling. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (“None of the

clinicians who examined [plaintiff] indicated that she had anything more than moderate limitations

in her work-related functioning, and most reported less severe limitations.”); McMillian v. Comm'r

of Soc. Sec., No. 1:20-CV-7626 (KHP), 2022 WL 457400, at *6 (S.D.N.Y. Feb. 15, 2022) (in

finding moderate mental limitations, the ALJ did not err in limiting Plaintiff to simple, routine

tasks); Tara B. v. Comm’r of Soc. Sec., No. 1:20-CV-0934 (WBC), 2021 WL 4912585, at *7

(W.D.N.Y. Oct. 21, 2021) (an RFC for simple routine work is not inherently inconsistent with

moderate limitations in a plaintiff's mental functioning, particularly where the source who

provided such limitations ultimately opined the plaintiff is capable of performing simple, routine,

repetitive work); Gomez v. Comm'r of Soc. Sec., 2020 WL 1322565, at *4-5 (W.D.N.Y. Mar. 20,

2020) (residual functional capacity that limits claimant to simple routine tasks accounts for

moderate-to-marked limitations); Cummings v. Comm’r of Soc. Sec., 2018 WL 2209204 at *7 n.3

(N.D.N.Y. 2018) (finding that even a marked limitation is not inconsistent with the ability to

perform unskilled work); Wells v. Colvin, 87 F. Supp. 3d 421, 435–36 (W.D.N.Y. 2015) (finding

that moderate limitations, even in the basic mental functions of unskilled work, are not inconsistent

with the ability to perform unskilled work).

In addition to the opinion evidence, the ALJ also considered the objective clinical findings

of record. Tr. 20. See 20 C.F.R. § 404.1529(c)(3) (providing that the SSA “will consider all of the

evidence presented, including information about [a claimant's] prior work record, [a claimant's]

statements about [her] symptoms, evidence submitted by [her] medical sources, and observations

by [the SSA's] employees and other persons”). For example, progress records from Horizon

mental health services document intermittent periods of mental health treatment since November

2014 for reported symptoms of anxiety and depression, with more regular attendance since

December 2017. Tr. 20, 402-520, 816-24. Prior to that, the record indicates that Plaintiff was

discharged from treatment on at least two occasions for missed appointments and no-shows, and

there was a gap in treatment from August 2015 to December 2017. Tr. 20, 402, 417, 429.

Mental status examination on intake in December 2017, revealed an appropriate affect,

adequate hygiene and grooming, relaxed posture, no psychomotor agitation, friendly, cooperative

and pleasant behavior, appropriate and organized thought content, logical thought process, no

abnormal perceptions and intact attention and memory. Tr. 20, 407-08. Insight and judgment were

fair. Tr. 408. A mental status examination performed by Horizon nurse practitioner Sharon Yager

in February 2018 revealed similar findings. Tr. 20, 714.

The RFC is also supported by the observation of Horizon therapist Matthew Orlando,

LCSW, who described Plaintiff as tangential in conversation but comfortable, talkative, sitting

with a relaxed posture and readily sharing, even in the context of “overwhelmed” family and health

stressors, headaches that could not be treated because of pregnancy, and increased conflict with

her significant other. Tr. 21, 818, 822.

While Plaintiff’s anxiety-related symptoms fluctuated in May and July 2019, this was in

response to family stressors over the prior year. Tr. 700-01, 822-23. However, deficits in mental

health brought upon by situational stress are not necessarily disabling. See Swiantek v. Comm’r of

Soc. Sec., 588 F. App’x 82, 83-84 (2d Cir. 2015) (finding that behaviors precipitated by situational

factors rather than longitudinal manifestations of psychological disorders belied the presence of

totally disabling functional limitations); Denea v. Comm'r of Soc. Sec., No. 18-CV-779, 2020 WL

994672, at *6 (W.D.N.Y. Mar. 2, 2020) (Although the record showed that plaintiff handled stress

poorly at times, the factors cited by plaintiff that caused him stress were largely episodic and/or

situational rather than disabling); Morgan v. Colvin, No. 6:14-cv-0549 (LEK), 2016 WL 3527907,

at *15 (N.D.N.Y. June 23, 2016) (situational stressors are not a basis for a finding of disability).

In addition to the opinion evidence and objective clinical findings, the ALJ also properly

considered Plaintiff’s robust activities of daily living. Tr. 21. See 20 C.F.R. § 404.1529(c)(3)(i)

(An ALJ may consider the nature of a claimant’s daily activities in evaluating the consistency of

allegations of disability with the record as a whole.); see also Ewing v. Comm’r of Soc. Sec., No.

17-CV-68S, 2018 WL 6060484, at *5 (W.D.N.Y. Nov. 20, 2018) (“Indeed, the Commissioner’s

regulations expressly identify ‘daily activities’ as a factor the ALJ should consider in evaluating

the intensity and persistence of a claimant’s symptoms.”) (citing 20 C.F.R. § 416.929(c)(3)(i));

Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (claimant’s abilities to watch television, read,

drive, and do household chores supported ALJ’s finding that his testimony was not fully credible).

As the ALJ noted, Plaintiff lived with her husband and children. Tr. 21, 36-37. Plaintiff

reported to Dr. Ippolito that she could independently clean, handle personal care, manage her own

money, drive, and use public transportation. Tr. 21, 524. Additionally, Plaintiff reported that her

hobbies included journaling and painting, and she kept in touch with her mother, brother and

mother-in-law. Tr. 21, 524. Plaintiff told Dr. Ippolito that she spent a typical day taking care of

her children (two at that time, which increased to three prior to the date of the hearing when

Plaintiff was expecting her fourth child). Tr. 21, 36-37, 524. Plaintiff’s function report

corroborated that she would take care of her children while her husband worked, and that she

cleaned and read. Tr. 21, 264-65. She also identified coping skills of walking, music, reading,

writing spending time with her son, and talking with supports that included her therapist, three

friends, her mom and her brother. Tr. 21, 432. This evidence supports the ALJ’s finding that

Plaintiff’s “activities of daily living weigh in favor of restrictions no greater than the residual

functional capacity, especially in the context of the clinical evidence.” Tr. 21.

Plaintiff bears the ultimate burden of proving that she was disabled throughout the period

for which benefits are sought. 20 C.F.R. §§ 404.1512(a) and 416.912(a); Schauer v. Schweiker,

675 F.2d 55, 59 (2d Cir. 1982); see Dumas v. Schweiker, 712 F.2d 1545, 1549 (2d Cir. 1983);

Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); see also Smith v. Berryhill, 740 Fed. Appx.

721, 726 (holding that a plaintiff has the duty to prove a more restrictive RFC). Plaintiff here did

not meet this burden.

As detailed above, substantial evidence in the record supports the ALJ’s decision.

Plaintiff’s attempts to argue otherwise are meritless. 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, 683 F.3d at 448 (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 Plaintiff’s

daily activities, and the ALJ’s findings are supported by substantial evidence. Accordingly, the

Court finds no error.

CONCLUSION

Plaintiff's Motion for Judgment on the Pleadings (ECF No. 9) is DENIED, and the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 10) 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.

Lye

DON D. Sued aoe

UNITED STATES MAGISTRATE JUDGE

18