Reisch v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JILLIAN R., §

§

Plaintiff, §

§

v. § Case # 1:20-cv-1735-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Jillian 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 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. 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

On January 17, 2018, Plaintiff protectively filed applications for disability insurance

benefits (“DIB”) and child disability benefits (“CDB”) under Title II of the Act, and SSI under

Title XVI of the Act, alleging disability beginning June 30, 2004 (the disability onset date), due

to: “(1) severe anxiety/depression, (2) ADHD, (3) Knee injury/torn ACL, and (4) herniated discs

in lower back.” Transcript (“Tr.”) 16, 197-207, 215-16, 217-18, 240. The claims were denied

initially on January 18, 2018 and August 10, 2018 (Tr. 16, 69-84, 85-93, 105-09), after which

Plaintiff requested a hearing (Tr. 117-18). On October 17, 2019, Administrative Law Judge Gina

Pesaresi (the “ALJ”) conducted a video hearing in Jersey City, New Jersey, Tr. 16. Plaintiff

appeared and testified in Buffalo, New York, and was represented by Brianna Carroll, an attorney

with the Law Offices of Kenneth R. Hiller. Id. Coleman K. Cosgrove, an impartial vocational

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

Prior to the October 17, 2019 hearing, Plaintiff amended the alleged onset date for her Title

II and XVI applications to January 1, 2014. Tr. 16, 235. The ALJ found that, as a result, Plaintiff

would not be entitled to benefits under Title II of the Act because she would not have disability

insured status on the alleged date of onset. Tr. 16. 20 C.F.R. §§ 404.130, 404.131, 404.315. The

ALJ also found that Plaintiff would not be entitled to child disability benefits because she was over

the age of 22 on the alleged onset date. Tr. 16. 20 C.F.R. § 404.350(a)(5). The ALJ additionally

noted that a request for hearing for an application for benefits may be dismissed if, at any time

before the notice of the hearing decision is mailed, Plaintiff asks to withdraw the request. Tr. 16.

20 C.F.R. § 404.957(a). The ALJ noted that on October 1, 2019, Plaintiff was fully advised of the

consequences of her request to amend her alleged onset date, including dismissal of the request for

hearing regarding her Title II claim, with the result that the initial determination for this claim

would become final. Tr. 16, 235. After discussing the issue with her attorney, Plaintiff indicated

that she understood the implications of amending her alleged onset date and confirmed that she

was proceeding solely with the SSI application. Tr. 16-17, 39-30, 235. Accordingly, the ALJ

dismissed Plaintiff’s DIB and CDB claims under Title II, and therefore, the ALJ’s decision

addresses only Plaintiff’s SSI claim. Tr. 17.

The ALJ issued an unfavorable decision on November 25, 2019, finding that Plaintiff was

not disabled. Tr. 16-27. On September 30, 2020, the Appeals Council denied Plaintiff’s request

for further review. Tr. 1-6. The ALJ’s November 25, 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 her November 25, 2019 decision:

1. The claimant has not engaged in substantial gainful activity since January 1, 2014, the

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

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

(“ADHD”), major depressive disorder, post-traumatic stress disorder (“PTSD”), substance

abuse disorders in remission; left-knee status post ACL repair (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 416, Subpart

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

4. The claimant has the residual functional capacity to perform light work as defined in 20

CFR 416.967(b)1 except she can perform no kneeling, crawling or crouching, and she is

limited to simple work with only occasional interaction with coworkers and supervisors,

and never with the public.

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

6. The claimant was born on February 20, 1985 and was 19 years old, which is defined as a

younger individual age 18-49, on the alleged disability onset date (20 CFR 416.963).

7. The claimant has at least a high school 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).

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 416.969a).

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

the application date of January 17, 2018, through the date of this decision (20 CFR

416.920(g)).

Tr. 16-27.

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

benefits protectively filed on January 17, 2018, the claimant is not disabled under section

1614(a)(3)(A) of the Social Security Act. Tr. 27.

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).

ANALYSIS

Plaintiff essentially asserts a single point of error challenging the ALJ’s evaluation of the

opinion evidence. See ECF No. 9-1 at 9-14. Specifically, Plaintiff takes issue with the ALJ’s

finding that the opinions of treating mental health providers Gerianne Wasinger, LCSW (“Ms.

Wasinger”), and Joan Canozeri, PNP (“Ms. Canozeri”), were not persuasive. Tr. 25. See id.

Plaintiff also argues that there was no opinion to support the social interaction limitations included

in the RFC, because the ALJ found the opinions of consultative psychologist Susan Santarpia,

Ph.D. (“Dr. Santarpia”), and state agency reviewing psychologist S. Juriga, Ph.D. (“Dr. Juriga”),

that Plaintiff had no more than mild mental limitations, only partially persuasive. See id. at 11-14.

Accordingly, argues Plaintiff, the RFC was unsupported by substantial evidence.2 See id. at 9-14.

In response, the Commissioner argues that the ALJ properly relied on the medical opinions

and other evidence of record in support of the mental portion of Plaintiff’s RFC finding, including

the opinions of Dr. Santarpia and Dr. Juriga. See ECF No. 10-1 at 13-18. Additionally, argues the

Commissioner, Plaintiff’s argument fails because the ALJ found that Plaintiff had greater

limitations than provided by either psychologist, which was not error. See id.

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

2 The Court notes that Plaintiff does not challenge the physical portion of ALJ’s RFC finding. See generally ECF No.

9-1. Because Plaintiff does not challenge these findings in her brief, the Court declines to address these issues 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.”).

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 properly considered

the medical opinion evidence and the other evidence of record, and the ALJ’s finding that Plaintiff

was capable of performing light work with certain limitations was supported by substantial

evidence. Accordingly, the Court finds no error.

Plaintiff’s record shows a history of mental health treatment, including treatment for

substance abuse. On August 27, 2015, Plaintiff was admitted for substance abuse treatment at

Horizon Corporations (“Horizon”). Tr. 496, 1224. She was discharged less than one month later

on September 7, 2017, with a diagnosis of opioid use disorder, alcohol use disorder, and cocaine

use disorder. Tr. 496. She was admitted to substance abuse treatment at Horizon again on October

2, 2015, with similar diagnoses. Tr. 578. On October 22, 2015, Plaintiff reported that she had used

crack, marijuana, and alcohol, but she had not honestly reported her usage during her October 2,

2015 visit. Tr. 1224. The treatment records indicate that she was largely abstinent from October

2015 until at least September 2017, when she was discharged from the program, except for one

mild relapse in November 2015. Tr. 579. The discharge summary from September 2017 notes that

Plaintiff appeared to have the skills necessary to maintain her recovery. Tr. 579-81. The report

also notes that Plaintiff was working and was active in sober social activities. Id.

The record also shows regular treatment for several years prior to the alleged onset date

with psychiatrist Qasim S. Jaffri, D.O. (“Dr. Jaffri”), although the record indicates a gap in

treatment from approximately June 2013 until November 2016, due to insurance issues. Tr. 653,

656. When she resumed treatment with Dr. Jaffri in November 2016, Plaintiff reported she had

voluntarily relinquished custody of her two older children to her mother, but she had recently given

birth to a baby, who was in her care. Tr. 656, She also reported she had recently enrolled in

cosmetology school and felt she was doing “much better.” Id. She reported some ongoing

symptoms of depression, but also reported her attention deficit disorder symptoms were controlled,

and that her spirits and mood were good. Id.

Upon mental status examination, Dr. Jaffri found Plaintiff was pleasant and cooperative,

with good hygiene, and made good eye contact. Tr. 658. She was fully oriented and her recent and

remote memory were intact. Id. She reported intermittent distractibility at times, but she stated that

her “cravings [were] quite well controlled.” Id. Dr. Jaffri decided to continue Plaintiff on her

current medications for depression, anxiety, and attention deficit disorder, as “she [was] doing

well.” Tr. 659. He also decided to start tapering her Suboxone. Id. At follow-up visits thereafter in

2017 and 2018, Dr. Jaffri consistently noted partial relief of symptoms with no side effects to

medications, and normal and stable mental status findings. Tr. 658, 664, 670, 697, 854-56, 862-

64, 868, 870-72. He also noted some tardiness to appointments and non-compliance with the drug

testing routine at times; because of this, he could not write prescriptions for Suboxone and Ritalin.

Tr. 877.

Dr. Santarpia administered a psychiatric evaluation on May 17, 2018. Tr. 724-28. Plaintiff

reported having driven herself to the examination, and she was working part-time as a caregiver

for her father, who was ill. Tr. 724. She reported some ongoing symptoms of depression, but she

reported medication was helping. Tr. 725. Upon mental status examination, Dr. Santarpia found

that Plaintiff was cooperative; her manner of relating and her overall presentation were adequate;

and she was well groomed with appropriate eye-contact. Id. Dr. Santarpia also documented normal

speech, thought processes, intact attention, concentration and memory, average cognitive

functioning, and fair insight and judgment. Tr. 726. She opined that Plaintiff would have no

significant mental limitations. Tr. 727.

On May 13, 2019, Plaintiff was evaluated by a psychologist C.J. Pino, Ph.D. “Dr. Pino”),

complaining of symptoms of attention deficit disorder. Tr. 738. Plaintiff reported that she was

easily distracted by noise, and she had attention problems which had gotten progressively worse

since childhood. Tr. 733. She also reported having frequent panic attacks in the past, which had

resolved; however, she continued to have problems with reading comprehension. Id. Dr. Pino

noted that Plaintiff’s mental status examination was “within normal range,” but she felt distracted

and disorganized. Id. He also administered the Copeland Adult ADD checklist and found that

Plaintiff met the criteria for ADHD type. Id. Dr. Pino indicated he was going to write to Plaintiff’s

psychiatrist regarding a trial of Adderall. Id.

On August 1, 2019, Plaintiff had an initial psychiatric assessment with Yogesh Bakhai,

M.D. (“Dr. Bakhai”). Tr. 1148-50. Dr. Bakhai noted that Plaintiff was late for the appointment,

and she reported feeling poor motivation. Tr. 1148. She reported sleeping excessively and not

cleaning her apartment, as well as difficulties with focus and concentration. Id. Upon mental status

examination, Dr. Bakhai noted a normal appearance and speech, cooperative attitude, appropriate

behavior, anxious mood and affect, organized and goal-directed thought processes, normal

associations, no perceptual disturbances, good judgment, fair insight, and intact concentration. Tr.

1149.

On October 15, 2019, therapist Ms. Wasinger and psychiatric nurse practitioner Ms.

Canozeri jointly submitted a mental residual functional capacity questionnaire. Tr. 1141-47. They

had seen Plaintiff since May 31, 2019, after she successfully completed chemical dependency

treatment. Tr. 1141. The report notes that Plaintiff recently scored highly on the PHQ-9, indicating

severe depression symptoms, and she scored 64 on the PCL-5, indicating active, severe PTSD. Id.

They also noted that obsessive compulsive disorder was being ruled out, as Plaintiff “struggled

with checking behaviors that interfere with timeliness.” Id. Because Ms. Wasinger and Ms.

Canozeri had not been able to observe Plaintiff in a work setting or in public, they could not opine

on her functional limitations in these areas. Tr. 1144. However, they opined that she would be

absent from work more than four days per month. Tr. 1146.

As noted above, Plaintiff challenges the ALJ’s consideration of the opinion evidence and

her overall RFC finding. 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). Here, Plaintiff filed her claim on January 17, 2018, and therefore, the 2017 regulations are

applicable to her claim.

First, the new regulations change how ALJs consider medical opinions and prior

administrative findings. The new regulations no longer use the term “treating source” and no

longer make medical opinions from treating sources eligible for controlling weight. Rather, the

new regulations instruct that, for claims filed on or after March 27, 2017, an ALJ cannot “defer or

give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or

prior administrative medical findings(s), including those from [the claimant’s own] medical

sources.” 20 C.F.R. § 416.920c(a) (2017).

Second, instead of assigning weight to medical opinions, as was required under the prior

regulations, under the new rubric, the ALJ considers the persuasiveness of a medical opinion (or a

prior administrative medical finding). Id. The source of the opinion is not the most important factor

in evaluating its persuasive value. 20 C.F.R. § 416.920c(b)(2). Rather, the most important factors

are supportability and consistency. Id.

Third, not only do the new regulations alter the definition of a medical opinion and the way

medical opinions are considered, but they also alter the way the ALJ discusses them in the text of

the decision. 20 C.F.R. § 416.920c(b)(2). After considering the relevant factors, the ALJ is not

required to explain how he or she considered each factor. Id. Instead, when articulating his or her

finding about whether an opinion is persuasive, the ALJ need only explain how he or she

considered the “most important factors” of supportability and consistency. Id. Further, where a

medical source provides multiple medical opinions, the ALJ need not address every medical

opinion from the same source; rather, the ALJ need only provide a “single analysis.” Id.

Fourth, the regulations governing claims filed on or after March 27, 2017 deem decisions

by other governmental agencies and nongovernmental entities, disability examiner findings, and

statements on issues reserved to the Commissioner (such as statements that a claimant is or is not

disabled) as evidence that “is inherently neither valuable nor persuasive to the issue of whether [a

claimant is] disabled.” 20 C.F.R. § 416.920b(c)(1)-(3) (2017). The regulations also make clear

that, for claims filed on or after March 27, 2017, “we will not provide any analysis about how we

considered such evidence in our determination or decision” 20 C.F.R. § 416.920b(c).

Finally, Congress granted the Commissioner exceptionally broad rulemaking authority

under the Act to promulgate rules and regulations “necessary or appropriate to carry out” the

relevant statutory provisions and “to regulate and provide for the nature and extent of the proofs

and evidence” required to establish the right to benefits under the Act. 42 U.S.C. § 405(a); see also

42 U.S.C. § 1383(d)(1) (making the provisions of 42 U.S.C. § 405(a) applicable to title XVI); 42

U.S.C. § 902(a)(5) (“The Commissioner may prescribe such rules and regulations as the

Commissioner determines necessary or appropriate to carry out the functions of the

Administration.”); Barnhart v. Walton, 535 U.S. 212. 217-25 (2002) (deferring to the

Commissioner’s “considerable authority” to interpret the Act); Heckler v. Campbell, 461 U.S. 458,

466 (1983). Judicial review of regulations promulgated pursuant to 42 U.S.C. § 405(a) is narrow

and limited to determining whether they are arbitrary, capricious, or in excess of the

Commissioner’s authority. Brown v. Yuckert, 482 U.S. 137, 145 (1987) (citing Heckler v.

Campbell, 461 U.S. at 466).

Contrary to Plaintiff’s contentions, the ALJ in this case properly analyzed the opinion

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

evidence supports the ALJ’s RFC assessment. See 20 C.F.R. §§ 404.1527, 416.927. Plaintiff first

argues that the ALJ’s RFC finding is not supported by substantial evidence because the ALJ found

that Plaintiff had greater limitations than either Dr. Santarpia or Dr. Juriga opined. See ECF No.

9-1 at 11-14. Although both Dr. Santarpia and Dr. Juriga found no more than mild mental

limitations, the ALJ found these assessments only partially persuasive because the overall record,

including reports of continued symptoms, reflected more severe mental impairments that would

impose some limitations. Tr. 25.

According to Plaintiff, because there was no opinion to support the social interaction

limitations included in the RFC, the ALJ impermissibly relied on her own lay opinion in assessing

Plaintiff’s RFC. See ECF No. 9-1 at 11-14. Contrary to Plaintiff’s argument, however, the ALJ

was not required to rely on an opinion that mirrored the RFC. Plaintiff’s argument wrongly

presumes that RFCs are medical determinations, and thus, outside the ALJ’s expertise, but as

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

with weighing the evidence in the record and reaching an RFC finding based on the record as a

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

at 56). The regulations explicitly state that the issue of RFC is “reserved to the Commissioner”

because it is an “administrative finding that [is] dispositive of the case.” 20 C.F.R. §§ 404.1527(d),

416.927(d). Furthermore, the regulations direct the ALJ to weigh a medical source opinion by

evaluating the extent to which the source of the opinion has presented evidence, “particularly

medical signs and laboratory findings,” to support the opinion. 20 C.F.R. §§ 404.1527(c)(3),

416.927(c)(3).

Moreover, 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) (ALJ’s decision supported by other evidence despite rejecting the only medical

opinion in the record); see also Corbiere v. Berryhill, 760 F. App’x 54, 56 (2d Cir. 2019). Here,

the ALJ based the RFC finding on the overall record, and the Court finds that it is supported by

substantial evidence.

As noted above, both Dr. Santarpia and Dr. Juriga opined that Plaintiff had no more than

mild mental limitations. Tr. 25, 75-76, 727. Generally, if a claimant has no more than mild mental

limitations, that claimant does not have a severe mental impairment. 20 C.F.R. § 416.920a(d)(1)

(If the degree of limitation in the ability to understand, remember or apply information; interact

with others; concentrate, persist or maintain pace; and adapt or manage oneself, is rated none or

mild, then the ALJ will generally conclude that the claimant’s mental impairment is not severe and

will deny benefits at step two). Indeed, Dr. Juriga concluded that Plaintiff did not have a severe

mental impairment. Tr. 75-76. Despite the psychologists’ opinions, based on the overall record, at

step two, the ALJ found that Plaintiff had severe mental impairments. Tr. 19.

When determining Plaintiff’s RFC, the ALJ discussed Dr. Santarpia and Dr. Juriga’s

opinions and explained how she considered the two most important factors of supportability and

consistency in finding their opinions to be only partially persuasive. Tr. 25. See 20 C.F.R. §

416.920c(b)(2) (The ALJ will explain how she considered the factors of supportability and

consistency, which are the two most important factors in determining the persuasiveness of a

medical source’s medical opinion or a prior administrative medical finding); 416.920c (c)(1) (“The

more relevant the objective medical evidence and supporting explanations presented by a medical

source are to support his or her medical opinion . . . the more persuasive the medical opinion . . .

will be.”); 416.920c (c)(2) (“The more consistent a medical opinion . . . is with the evidence from

other medical sources and nonmedical sources in the claim, the more persuasive the medical

opinion . . . will be.”).

As the ALJ noted, the opinions were supported by Dr. Santarpia’s largely normal mental

status findings, including a cooperative attitude, normal appearance, speech, and thought

processes, intact attention, concentration and memory, average cognitive functioning, and fair

insight and judgment. Tr. 25, 725-26. The ALJ also found these assessments were generally

consistent with Plaintiff’s reports of at least partial relief of symptoms with treatment, with no side

effects to medications, and normal and stable mental status findings found in the treatment records.

Tr. 25, 49, 658, 664, 670, 697, 706-07, 710-11, 798, 854-56, 862-64, 868, 870-71.

The ALJ additionally explained that these reports were generally consistent with Plaintiff’s

descriptions of her daily activities. Tr. 25. 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

20 C.F.R. § 404.1529(c)(3)(i); 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)). Plaintiff cared for

her baby, cleaned her home, helped her father with laundry and cleaning and was his caregiver,

drove, shopped in stores and online, was able to manage money, watched television, and was able

to get along with others and follow instructions. Tr. 47, 256-63, 688, 696, 698, 711, 720, 727.

Nevertheless, the ALJ declined to adopt Dr. Santarpia and Dr. Juriga’s opinions wholesale.

Tr. 25. The ALJ concluded that, overall, she agreed with Dr. Santarpia and Dr. Juriga that

Plaintiff’s mental impairments were not disabling. Tr. 25. However, the ALJ explained that the

record reflected some reports of continued symptoms, showing Plaintiff’s “mental impairments

are severe and would impose some limitations.” Tr. 25.

Despite the fact that no physician opined on Plaintiff’s social interaction limitations, the

ALJ reasonably gave Plaintiff the benefit of the doubt by limiting her to simple work with only

occasional interaction with coworkers and supervisors, and never with the public. Tr. 21. See Ellen

A. v. Saul, Comm’r of Soc. Sec., No. 19-CV-1299F, 2021 WL 1087949, at *4 (W.D.N.Y. Mar. 22,

2021) (finding no error where based upon a review of the medical evidence and opinions of record,

as well as the ALJ’s observation of the Plaintiff at the administrative hearing, the ALJ determined

the plaintiff's severe impairments posed greater limitations than contained in the medical opinions

of record); Kirkland v. Colvin, 15-cv-6002, 2016 WL 850909, *12 (W.D.N.Y. Mar. 4, 2016)

(finding that the ALJ did not err by assessing specific limitations that did not precisely correspond

to any medical opinion because the plaintiff’s daily activities, treatment history, and consultative

examiner’s evaluation supported those limitations); Wilson v. Colvin, No. 6:16-cv-06509-MAT,

2017 WL 2821560, at *5 (W.D.N.Y. June 30, 2017) (“Furthermore, the fact that an RFC

assessment does not correspond exactly to a medical expert's opinion in the record does not mean

that the RFC assessment is ‘just made up’”).

Furthermore, Plaintiff fails to show how she was harmed by the ALJ finding greater mental

limitations than opined by Dr. Santarpia and Dr. Juriga. Even though this limitation was not based

on a medical opinion, it was favorable to Plaintiff. Although Plaintiff posits, “[w]ho is to say then

that Plaintiff can occasionally interact with coworkers and supervisors as opposed to less than

occasional?” (see ECF No. 9-1 at 13), Plaintiff has not shown that she required a more restrictive

limitation, as was her burden. See Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018)

(explaining that plaintiff had a duty to prove a more restrictive RFC than the ALJ found). Based

on the evidence discussed above, the ALJ reasonably found that Plaintiff retained the ability to

perform simple work with only occasional interaction with co-workers and supervisors, and never

with the public. Tr. 21, 25. Thus, Plaintiff’s argument that the ALJ’s RFC was based upon lay

opinion simply because it did not mirror a medical opinion is meritless.

Plaintiff also argues that the ALJ failed to incorporate any limitation as to Plaintiff’s off-

task time or absenteeism in the RFC, arguing that “the record shows Plaintiff has a serious issue

with both due to her mental health impairments.” See ECF No. 9-1 at 13. According to Plaintiff,

the RFC should have included an off-task limitation because she lacked energy and motivation,

slept excessively, and had a hard time getting up for her appointments. See id. at 14. However, the

ALJ was not required to include an off-task limitation merely based on Plaintiff’s self-reports. See

Joycelyn A. C. v. Comm’r of Soc. Sec., 2022 WL 605736, at *6 (N.D.N.Y. Feb. 7, 2022), report

and recommendation adopted sub nom. Jocelyn Ann C. v. Comm'r of Soc. Sec., No. 6:20-CV-1200,

2022 WL 602650 (N.D.N.Y. Mar. 1, 2022) (rejecting plaintiff’s argument that the ALJ should

have included further RFC limitations based on her emotional regulation difficulties because

plaintiff failed to cite any evidence to support her assertion that those difficulties impose functional

restrictions aside from her own reports).

Notably, the ALJ considered the October 2019 mental RFC questionnaire completed by

Ms. Canozeri and Ms. Wasinger, indicating that Plaintiff struggled with timeliness to early

appointments and opining that she would be absent from work more than four days per month. Tr.

25, 1141-47. The ALJ found the report not persuasive. Tr. 25. See 20 C.F.R. §§ 416.920c(b)(2),

(c)(1), (c)(2). As a preliminary matter, the ALJ noted that the report failed to identify any specific

work-related mental limitations, and Ms. Canozeri and Ms. Wasinger indicated insufficient

observation of Plaintiff to make these determinations. Tr. 25, 1144-45. As the ALJ explained,

overall, there was little support in the record for these limitations. Tr. 25. The ALJ also observed

that while the report identified uncontrolled symptoms of depression and PTSD, this was

inconsistent with treatment records consistently noting at least partial relief of symptoms and

consistently normal and stable mental status findings, as well as inconsistent with Plaintiff’s

description of her daily functioning, as discussed above. Tr. 25, 1141-42. Ultimately, the ALJ

reasonably concluded that the nature of the treating relationship between Plaintiff and these

providers, in and of itself, was insufficient to overcome the inconsistencies with the other evidence

discussed throughout the ALJ’s decision and noted above. Tr. 25.

The ALJ acknowledged that the record contained some positive clinical findings but based

on the evidence, she reasonably concluded that Plaintiff was capable of performing light work with

some limitations. The fact that the record contains some positive findings or opinions does not

undermine the ALJ’s decision that Plaintiff could perform the mental aspects of simple, unskilled

work with social interaction limitations, where, as here, there is also evidence to support the ALJ’s

conclusion.

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

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

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

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

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

have reached the ALJ’s findings on this record.

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

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

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

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

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

ALJ’s conclusions, which she has failed to do. 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, 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.

A A (uvvrt

DON D. BUSH

UNITED STATES MAGISTRATE JUDGE

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