Reales v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

OPAL R., §

§

Plaintiff, §

§

v. § Case # 1:20-cv-1699-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM

§ DECISION AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Opal R. (“Plaintiff”) brings this action pursuant to the Social Security Act (the

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

“Commissioner”), that denied her application for supplemental security income (“SSI”) under

Title XVI of the Act. See ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C.

§§ 405(g), 1383(c), and the parties consented to proceed before the undersigned in accordance

with a standing order (see ECF No. 15).

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

Procedure 12(c). See ECF Nos. 10, 12. Plaintiff also filed a reply brief. See ECF No. 14. For the

reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 10) is

DENIED, and the Commissioner’s motion for judgment on the pleadings (ECF No. 12) is

GRANTED.

BACKGROUND

Plaintiff protectively filed an application for SSI on December 26, 2017, alleging disability

beginning December 26, 2017 (the disability onset date), due to panic disorder, mixed anxiety

depression disorder, bipolar affect, asthma, post-traumatic stress disorder (“PTSD”), and obsessive

compulsive disorder. Transcript (“Tr.”) 15, 142-47, 158. Plaintiff’s claim was denied initially on

April 6, 2018, after which she requested an administrative hearing. Tr. 10, 80, 103. On October 7,

2019, Administrative Law Judge Anthony Dziepak (the “ALJ”) conducted a video hearing from

Lawrence, Massachusetts. Tr. 15, 32-67. Plaintiff appeared and testified in Buffalo, New York,

and was represented by Zachary Zabawa, an attorney. Tr. 15. Elizabeth C. Laflamme, an impartial

vocational expert (“VE”), also appeared and testified at the hearing. Id.

The ALJ issued an unfavorable decision on October 30, 2019, finding that Plaintiff was

not disabled. Tr. 15-28. On September 29, 2020, the Appeals Council denied Plaintiff’s request

for further review. Tr. 1-6. The ALJ’s October 30, 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 October 30, 2019 decision:

1. The claimant has not engaged in substantial gainful activity since December 26, 2017, the

application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairments: attention deficit hyperactivity disorder

(“ADHD”); depressive disorder; and anxiety-related disorder (20 CFR 416.920(c)).

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

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

P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4. The claimant has the residual functional capacity to perform a range of medium work as

defined in 20 CFR 416.967(c),1 including an ability to lift/carry fifty pounds occasionally

and twenty-five pounds frequently, sit for six hours total in an eight-hour workday, and

stand/walk for six hours total in an eight-hour workday. However, she is limited to

performing simple repetitive work tasks in a non-assembly line type production-paced

work setting, involving no public interaction and no team/tandem collaborative type work

with coworkers. The claimant is able to appropriately interact with supervisors, make

simple work-related decisions (e.g., understanding the need to replenish supplies when they

run out), and adapt to simple changes in the routine work setting (e.g., the temporary

relations of workstation within the same facility).

5. The claimant has no past relevant work (20 CFR 416.965).

6. The claimant was born on February 18, 1983 and was 34 years old, which is defined as a

younger individual age 18-49, on the date the application was filed (20 CFR 416.963).

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

416.964).

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

work (20 CFR 416.968).

1 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing

up to 25 pounds. If someone can do medium work, he or she is determined to also be able to do sedentary and light

work. 20 CFR 416.967(c).

9. Considering the claimant’s age, education, work experience, and residual functional

capacity, there are jobs that exist in significant numbers in the national economy that the

claimant can perform (20 CFR 416.969 and 416.969(a)).

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

December 26, 2017, the date the application was filed (20 CFR 416.920(g)).

Tr. 15-28.

Accordingly, the ALJ determined that, based on the application for supplemental security

benefits protectively filed on December 26, 2017, the claimant is not disabled under section

1614(a)(3)(A) of the Social Security Act. Tr. 28.

ANALYSIS

Plaintiff asserts two points of error. Plaintiff first argues that the ALJ impermissibly

mischaracterized evidence and used his mischaracterization to support his determination. See ECF

No. 10-1 at 1, 9-12. More specifically, Plaintiff argues that the ALJ inappropriately suggested that

therapist Megan Swanson (Ms. Swanson”) did not provide a functional opinion due to her lack of

support of Plaintiff’s disability claim, and the ALJ’s assertion that Plaintiff received no mental

health treatment prior to February 2018 was a mischaracterization. See id. At issue with respect to

Ms. Swanson is that she completed a mental residual functional capacity questionnaire on October

2, 2019, but she declined to provide any opinion as to Plaintiff’s mental functional limitations. See

Tr. 823-27. Plaintiff next argues that the ALJ erred because he failed to attempt to fill an obvious

gap in the record. See id. at 1, 12-14. According to Plaintiff, counseling records from Ms. Swanson

and other mental health treatment records are missing from the record, and the ALJ made no

attempt to obtain them. See id.

The Commissioner argues in response that: (1) the ALJ appropriately evaluated the record

evidence and did not mischaracterize the evidence to inappropriately suggest that Ms. Swanson

did not provide a functional opinion due to her lack of support of Plaintiff’s disability claim; and

(2) the ALJ did not substitute his judgment for the medical evidence in the case and properly

developed the record. See ECF No. 12-1 at 12-20. Further, argues the Commissioner, the ALJ did

not mischaracterize the evidence but simply reported what Ms. Swanson stated in her assessment

in the context of analyzing and considering the medical evidence, and it is Plaintiff who

mischaracterizes the ALJ’s analysis. See id. at 10-12.

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 appropriately analyzed

the opinion evidence, including Ms. Swanson’s medical source statement along with the opinions

of psychiatric consultative examiner Susan Santarpia, Ph.D. (Dr. Santarpia”), and state agency

psychological consultant T. Bruni, Ph.D. (“Dr. Bruni”), as well as Plaintiff’s treatment records,

her unremarkable mental status examinations, and her activities of daily living, and reasonably

concluded that Plaintiff was capable of performing a range of simple, repetitive, and unskilled

work, with no public interaction and no collaborative work with coworkers. Accordingly, the Court

finds that the ALJ’s RFC determination was supported by substantial evidence.

A claimant’s RFC is the most she can still do despite her limitations and is assessed based

on an evaluation of all relevant evidence in the record. See 20 C.F.R. §§ 404.1520(e),

404.945(a)(1), (a)(3); Social Security Ruling (“SSR”) 96-8p, 61 Fed. Reg. 34,474-01 (July 2,

1996). At the hearing level, the ALJ has the responsibility of assessing the claimant’s RFC. See 20

C.F.R. § 404.1546(c); SSR 96-5p, 61 Fed. Reg. 34,471-01 (July 2, 1996); see also 20 C.F.R. §

404.1527(d)(2) (stating the assessment of a claimant’s RFC is reserved for the Commissioner).

Determining a claimant’s RFC is an issue reserved to the Commissioner, not a medical

professional. See 20 C.F.R. § 416.927(d)(2) (indicating that “the final responsibility for deciding

these issues [including RFC] is reserved to the Commissioner”); Breinin v. Colvin, No. 5:14-CV-

01166(LEK TWD), 2015 WL 7749318, at *3 (N.D.N.Y. Oct. 15, 2015), report and

recommendation adopted, 2015 WL 7738047 (N.D.N.Y. Dec. 1, 2015) (“It is the ALJ’s job to

determine a claimant’s RFC, and not to simply agree with a physician’s opinion.”).

Additionally, it is within the ALJ’s discretion to resolve genuine conflicts in the evidence.

See Veino v Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). In so doing, the ALJ may “choose between

properly submitted medical opinions.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998).

Moreover, an ALJ is free to reject portions of medical-opinion evidence not supported by objective

evidence of record, while accepting those portions supported by the record. See Veino, 312 F.3d

at 588. Indeed, an ALJ may formulate an RFC absent any medical opinions. “Where, [] the record

contains sufficient evidence from which an ALJ can assess the [plaintiff’s] residual functional

capacity, a medical source statement or formal medical opinion is not necessarily required.”

Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017) (internal citations and quotation

omitted).

Moreover, the ALJ’s conclusion need not “perfectly correspond with any of the opinions

of medical sources cited in [his] decision,” because the ALJ is “entitled to weigh all of the evidence

available to make an RFC finding that [i]s consistent with the record as a whole.” Matta v. Astrue,

508 F. App’x 53, 56 (2d Cir. 2013) (citing Richardson v. Perales, 402 U.S. 389, 399 (1971) (the

RFC need not correspond to any particular medical opinion; rather, the ALJ weighs and

synthesizes all evidence available to render an RFC finding consistent with the record as a whole);

Castle v. Colvin, No. 1:15-CV-00113 (MAT), 2017 WL 3939362, at *3 (W.D.N.Y. Sept. 8, 2017)

(The fact that the ALJ’s RFC assessment did not perfectly match a medical opinion is not grounds

for remand.).

Furthermore, the burden to provide evidence to establish the RFC lies with Plaintiff—not

the Commissioner. See 20 C.F.R. §§ 404.1512(a), 416.912(a); see also Talavera v. Astrue, 697

F.3d 145, 151 (2d Cir. 2012) (“The applicant bears the burden of proof in the first four steps of the

sequential inquiry . . . .”); Mitchell v. Colvin, No. 14-CV-303S, 2015 WL 3970996, at *4

(W.D.N.Y. June 30, 2015) (“It is, however, Plaintiff’s burden to prove his RFC.”); Poupore v.

Astrue, 566 F.3d 303, 305-06 (2d Cir. 2009) (The burden is on Plaintiff to show that she cannot

perform the RFC as found by the ALJ.).

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 application on December 26, 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 finding that Plaintiff retained the capacity for a range of simple,

repetitive, and unskilled work, with no public interaction and no collaborative work with

coworkers. Tr. 23-26. See 20 C.F.R. §§ 404.1527, 416.927.

Plaintiff first argues that the ALJ mischaracterized the opinion evidence from Ms.

Swanson. See ECF No. 10-1 at 9-12. As noted above, Ms. Swanson completed a mental residual

functional capacity questionnaire in October 2019 but declined to provide any opinion as to

Plaintiff’s mental functional limitation. See Tr. 823-27. Rather, Ms. Swanson repeatedly stated

that she was “unable to answer” the questions because she “[did] not complete mental status

exams” and Plaintiff would need to go to “psych or neuropsych” for any such assessments. See id.

As such, the section of the form intended to provide an assessment of Plaintiff’s mental functioning

is useless. Plaintiff argues that the ALJ used this information (or more accurately, this lack of

information) to inappropriately suggest that Ms. Swanson’s inability to provide a functional

opinion was due to her lack of support of Plaintiff’s disability claim. See ECF No. 10-1 at 10.

Contrary to Plaintiff’s assertions, however, the ALJ did not “mischaracterize,” “infer,” or

otherwise “inappropriately suggest” that Ms. Swanson did not provide a functional opinion due to

her lack of support of Plaintiff’s disability claim. See id.

Plaintiff alleges that the ALJ’s citation to the statement completed by Ms. Swanson inferred

incorrect “subtext” and mistakenly conveyed that Ms. Swanson “did not think that Plaintiff was

disabled.” See ECF No. 10-1 at 10. However, the Court finds no inference or mistakenly conveyed

subtext in these statements. Rather, the ALJ accurately cited Ms. Swanson’s statements almost

verbatim and simply did as he was required to do under the regulations by assessing Ms. Swanson’s

relationship with Plaintiff (including the length, frequency, and extent of treatment) and

considering the supportability of Ms. Swanson’s statements in the context of her treatment

relationship with Plaintiff. See 20 C.F.R. § 416.920c(a)-(c) (2017).

As the ALJ noted, Ms. Swanson was providing “CBT2 treatment” and stated that she had

met with Plaintiff on only three occasions (April 24, 2018, March 28, 2019, and July 10, 2019).

Tr. 26, 823. Ms. Swanson added that Plaintiff had “poor attendance” with treatment. See id. Next,

the ALJ observed that: “Therapist Swanson further noted that she was unable to provide any

opinion on functional limitations as she did not complete any mental status examinations on the

2 According to the American Psychological Association (“APA”) website, CBT is cognitive behavioral therapy. CBT

treatment usually involves efforts to change thinking and/or behavioral patterns. Typically, the psychologist and

patient work collaboratively to develop an understanding of the problem and to develop a treatment strategy. APA

website, https://www.apa.org/ptsd-guideline/patients-and-families/cognitive-behavioral

claimant and deferred such ratings to a psychiatrist or neuropsychiatrists.” Tr. 26. The ALJ then

went on to state that “this impairment questionnaire does not provide any insight into the

claimant’s maximum mental functional capacities,” but “the statement [was] nevertheless notable

for the claimant’s own medical source declining to provide a substantive assessment on work

related limitations in support of her claim for benefits.” Tr. 26.

Contrary to Plaintiff’s allegations, the ALJ did not mischaracterize Ms. Swanson’s

statement or infer some subtext “to support his determination that Plaintiff was not disabled.” See

ECF No. 10-1 at 10. Further, the ALJ did not infer that Ms. Swanson “did not think that Plaintiff

was disabled” (see ECF No. 10-1 at 10), as Plaintiff argues. Tr. 16, 823. Rather, the ALJ simply

considered Ms. Swanson’s statements in the context of his duty to analyze the medical evidence

and noted the lack of insight from Ms. Swanson’s statements. Tr. 26. Furthermore, the Court agrees

with the ALJ that it was indeed “notable” that a treatment provider completed a mental residual

functional capacity questionnaire that did not render any opinion about Plaintiff’s mental residual

functional capacity.

Plaintiff’s argument fails for another reason—nothing in the ALJ’s decision indicates that

he relied on the fact that Ms. Swanson did not render an opinion to reach his finding that Plaintiff

was not disabled. Tr. 20-27. He simply acknowledged the lack of insight provided by Ms.

Swanson’s statements. Tr. 26. Such analysis is well within the ALJ’s discretion. See Rutherford v.

Schweiker, 685 F.2d 60, at 62 (2d. Cir. 1982) (Where evidence is deemed susceptible to more than

one rational interpretation, the Commissioner’s conclusion must be upheld). Accordingly, the

Court finds no error in the ALJ’s analysis.

Plaintiff also argues that the ALJ erred by suggesting that “Plaintiff received no mental

health treatment whatsoever between March 2015 and January 2018.” See ECF No. 10-1 at 11-12.

Plaintiff appears to ignore the actual text of the ALJ’s decision—the ALJ made no such suggestion

or implication. See Tr. 23. Contrary to Plaintiff’s assertion, the ALJ properly considered the lack

of mental health treatment in his analysis of the consistency of Plaintiff’s subjective complaints

with the objective record. Id. For example, the ALJ noted that Plaintiff received outpatient mental

health services from Spectrum Human Services (“Spectrum”) from July 2008 to July 2009 (Tr.

216-52, but those records did not contain any mental status examination findings, and Plaintiff had

voluntarily discontinued treatment in July 2009 (Tr., 232-33). Thus, the ALJ reasonably found

this factor inconsistent with Plaintiff’s allegations of life-long disabling psychiatric impairments.

Tr. 23.

Plaintiff also contends that the ALJ mischaracterized the record when he stated that

Plaintiff was “seen on at least seven occasions by her then primary care provider Maria T. Andaya,

M.D., between March 2015 to January 2018, but none of those medical encounters were

specifically related to her psychiatric impairments or associated symptoms, . . .” See ECF No. 10-

1 at 11 (citing Tr. 23). Again, the ALJ merely summarized the treatment record and reasonably

noted that he found this factor “troubling” in light of Plaintiff’s gap in psychiatric treatment since

July 2009. Tr. 23. As the ALJ explained, these medical reports from Dr. Andaya did not show any

evidence of psychiatric abnormalities, and a note from May 2017 indicated that Plaintiff was not

receiving any stimulant medications for ADHD. Id. The ALJ went on to explain that although

Plaintiff established care with another primary care provider in February 2018 and was restarted

on antidepressant medications, her physical examinations showed little indication of serious

mental functional limitations. Tr. 23, 254, 260, 262, 277, 281.

Thus, contrary to Plaintiff’s contention, the ALJ did not suggest that Plaintiff had no mental

health treatment at all between March 2015 and January 2018. Rather, the ALJ accurately

summarized Plaintiff’s mental health treatment history during that time and appropriately observed

that, while Plaintiff alleged disabling mental limitations, she did not pursue any specialist

psychiatric treatment during this period, nor did she frequent her primary care provider primarily

as a result of her alleged psychiatric limitations, nor did her primary care provider observe

significant psychiatric abnormalities in Plaintiff’s progress notes. Tr. 23, 254, 260, 261, 262, 277,

279.

Based on the foregoing, it was appropriate for the ALJ to consider Plaintiff’s minimal

mental health treatment history and sporadic attendance when assessing the limitations resulting

from her alleged impairments. See SSR 16-3p, 2017 WL 5180304, at *9 (if the frequency or extent

of the treatment sought by an individual is not comparable with the degree of the individual’s

subjective complaints, or if the individual fails to follow prescribed treatment that might improve

symptoms, the ALJ may find that the alleged intensity and persistence of an individual’s symptoms

are inconsistent with the overall evidence in the record); see also Lesanti v. Comm’r of Soc. Sec.,

436 F. Supp. 3d 639, 649 (W.D.N.Y. 2020) (ALJ appropriately considered claimant's daily

activities, non-compliance with medication, and poor attendance in treatment programs when

finding her subjective allegations less than fully credible); Diaz-Sanchez v. Berryhill, 295

F.Supp.3d 302, 306 (W.D.N.Y. 2018) (plaintiff's failure to seek treatment for an alleged

impairment suggests that the associated symptoms and limitations were not serious).

In addition, the ALJ’s decision was not based solely on whether Plaintiff sought treatment

between March 2015 and January 2018. The ALJ based his RFC determination on the entire record

as a whole, including Plaintiff’s unremarkable mental status examinations, her minimal and

conservative treatment, her activities of daily living, and Dr. Santarpia’s March 2018 opinion,

which the ALJ found to be “generally persuasive” based on its supportability and consistency with

the other evidence Tr. 25-26, 338.

As the ALJ noted, Dr. Santarpia opined that Plaintiff was capable of handling simple and

complex tasks, use reason and judgment to make work-related decisions, interact adequately with

supervisors, co-workers, and the public, sustain concentration, perform tasks at a consistent pace,

sustain an ordinary routine, and maintain regular attendance at work. Id. She further opined that

Plaintiff had a mild impairment in regulating her emotions, controlling her behavior, and

maintaining her well-being due to ADHD-related distractibility and lack of medication for the

same. Id. Dr. Santarpia’s opinion, therefore, supports the ALJ’s RFC determination.

The Court notes that Plaintiff does not challenge the ALJ’s finding of Dr. Santarpia’s

opinion as persuasive, nor does Plaintiff challenge the ALJ’s reliance on Dr. Santarpia’s opinion

in making the RFC determination. See ECF No. 10-1 at 9-14. Accordingly, the Court need not

address this issue. 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.”).

The ALJ also considered Plaintiff’s daily living activities when assessing her RFC. Tr. 25.

As the ALJ observed, Plaintiff reported she cooked, cleaned, shopped, managed her finances,

socialized with friends and family frequently, and spent the majority of the day serving as primary

caretaker for her 11-year-old daughter. Tr.25, 330, 337-38. She also reported engaging in leisurely

activities including exercise, gardening, reading, using her phone as a computer, using social

media, and running errands as needed. Id. Thus, the ALJ properly determined that Plaintiff’s self-

reported statements and activities demonstrate a level of functionality inconsistent with the level

of impairment alleged, providing further support for the ALJ’s determination. Tr. 18-23. See

Cowley v. Berryhill, 312 F. Supp.3d 381 (W.D.N.Y. May 17, 2018).

Based on the foregoing, the ALJ properly based his RFC determination on the record as a

whole, including Dr. Santarpia’s opinion, the objective medical evidence, Plaintiff’s minimal

mental health treatment, and her activities of daily living, and there is no merit to Plaintiff’s

argument that the ALJ mischaracterized the record with respect to Plaintiff’s mental health

treatment. Accordingly, the Court finds no error.

In her second point of error, Plaintiff argues that the ALJ failed to develop the record and

should have made an effort to obtain Plaintiff’s therapy records. See ECF No. 10-1 at 12-13. In

support of her argument, Plaintiff highlights the three instances of treatment noted in Ms.

Swanson’s statement (Tr. 823); two passing references in the treatment notes indicating that

Plaintiff may have received counseling or been referred for counseling (Tr. 766, 790); and the fact

that Plaintiff was prescribed psychotropic medications by her primary care providers (Tr. 766).

See ECF No. 10-1 at 12. For the reasons discussed below, Plaintiff’s argument is without merit.

A court must first “be satisfied that the ALJ provided plaintiff with a full hearing under the

[SSA]’s regulations and also fully and completely developed the administrative record” before it

can consider whether substantial evidence supports the ALJ’s decision. Calhoun v. Comm’r of Soc.

Sec., No. 18-CV-6070-FPG, 2019 WL 1949743, at *3 (W.D.N.Y. May 2, 2019) (citing Leutung,

2019 WL 1385847, *3 (quotation marks and citations omitted). Remand is warranted if the ALJ

fails to fulfill his duty to develop the record. Id. (citing Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.

1996).

On the other hand, where there are no “obvious gaps” in the record and a “complete medical

history” exists, the ALJ does not have to seek additional evidence. Id. (citing Rosa, 168 F.3d at 79

n.5). A complete medical history consists of the records and medical sources covering at least the

12 months preceding the month in which the claimant files an application for benefits. See 20

C.F.R. 416.912(d); Bushey v. Colvin, 607 F. App’x 114, 115 (2d Cir. 2015). The Court finds that

the ALJ adequately developed the record in this case, and there are no obvious gaps in the record.

In this case, Plaintiff was represented at the administrative level, and her attorney at the

hearing voiced no objection to the evidence that was exhibited into the record. See Tr. 35-37. The

ALJ also asked Plaintiff’s counsel at the hearing if there was anything else that needed to be

brought to the ALJ’s attention before the hearing “wrapped up,” to which Plaintiff’s counsel

responded, “No.” Tr. 66. Furthermore, the ALJ specifically questioned Plaintiff about her mental

health treatment providers, and Plaintiff mentioned seeing a “counselor named Megan” and

indicated that “all of [her] anxiety meds are through [her] primary care doctor.” Tr. 49.

At no point did Plaintiff or her attorney inform the ALJ of any issues relating to obtaining

opinion evidence from her providers, or request that the ALJ assist with obtaining the records.

Thus, the ALJ owed no heightened duty to Plaintiff, as she and her attorney were well aware of

the importance of obtaining opinion evidence, and Plaintiff had the means by which to obtain such

evidence. See Rivera v. Comm’r of Soc. Sec., 728 F. Supp. 2d 297, 330 (S.D.N.Y. 2010) (“Courts

do not necessarily require ALJs to develop the record by obtaining additional evidence themselves,

but often permit them to seek it through the claimant or his counsel.” (citations omitted)).

Moreover, Plaintiff’s attorney did not raise any issue regarding the lack of medical source

statements at the hearing, nor did Plaintiff’s current counsel raise this issue before the ALJ or to

the Appeals Council. See Tr. 1-6.

More importantly, an ALJ need not further develop the record “when the evidence already

presented is ‘adequate for [the ALJ] to make a determination as to disability.’” See Janes v.

Berryhill, 710 F.App’x 33, 34 (2d Cir. Jan. 30, 2018) (summary order (quoting Perez v. Chater,

77 F.3d 41, 48 (2d Cir. 1996). see also Morris v. Berryhill, 721 F. App’x 25, 27-28 (2d Cir. 2018)

(summary order) (explaining that the mere “theoretical possibility” of missing records that might

be probative of disability “does not establish that the ALJ failed to develop a complete record”).

Here, the record contained detailed contemporaneous treatment records from Plaintiff’s primary

care provider; records from “NHC” (Neighborhood Health Center), where Ms. Swanson practices

(Tr. 753-797); records from Spectrum (Tr. 216-252); Ms. Swanson’s responses to a mental residual

functional questionnaire (Tr. 823-833); and opinions as to Plaintiff’s psychiatric limitations from

consultative psychiatric examiner Dr. Santarpia (Tr. 335-340) and from state agency psychological

consultant Dr. Bruni, who reviewed Plaintiff’s records in April 2018 (Tr. 74-75). Tr. 25-26. Thus,

the ALJ possessed sufficient medical evidence to render a decision, and there was no need to obtain

additional medical evidence. Carvey v. Astrue, 380 Fed. Appx. 50, 51 (2d Cir. 2010) (“because the

record evidence was adequate to permit the ALJ to make a disability determination, we identify

no merit in Carvey’s claim that the ALJ was obligated sua sponte to recontact the treating

physicians.”). Plaintiff’s attempts to argue otherwise are meritless.

Furthermore, as previously noted, Plaintiff bears the ultimate burden of proving that she

was more limited than the ALJ found. See Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018)

(“Smith had a duty to prove a more restrictive RFC, and failed to do so.”); Poupore, 566 F.3d at

306 (it remains at all times the claimant’s burden to demonstrate functional limitations, and never

the ALJ’s burden to disprove them); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (“It

is not unreasonable to require the claimant, who is in a better position to provide information about

his own medical condition, to do so.”).

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

When “there is substantial evidence to support either position, the determination is one to be made

by the fact-finder.” Davila-Marrero v. Apfel, 4 F. App’x 45, 46 (2d Cir. Feb. 15, 2001) (citing

Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)). While Plaintiff may disagree with the ALJ’s

conclusion, Plaintiff’s burden was to show that no reasonable mind could have agreed with the

ALJ’s conclusions, which she has failed to do. The substantial evidence standard is “a very

deferential standard of review – even more so than the ‘clearly erroneous’ standard,” and the

Commissioner’s findings of fact must be upheld unless “a reasonable factfinder would have to

conclude otherwise.” Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012)

(emphasis in the original). As the Supreme Court explained in Biestek v. Berryhill, “whatever the

meaning of ‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not

high” and means only “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations

omitted).

For all the reasons discussed above, the Court finds that the ALJ properly considered the

evidence of record, including the medical opinion evidence, the treatment notes, and the objective

findings, as well as Plaintiff’s significant range of activities, and the ALJ’s findings are supported

by substantial evidence. Accordingly, the Court finds no error.

CONCLUSION

Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 10) is DENIED, and the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 12) is GRANTED. Plaintiff’s

Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court will enter

judgment and close this case.

IT IS SO ORDERED.

k Dive J (Duvvrt-

DON D. BUSH

UNITED STATES MAGISTRATE JUDGE

20