Scrivani v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ANDREW S., §

§

Plaintiff, §

§

v. § Case # 1:20-cv-1612-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM

§ DECISION AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Andrew S. (“Plaintiff”) brings this action pursuant to the Social Security Act (the

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

“Commissioner”), that denied his application for 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. 13).

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

Procedure 12(c). See ECF Nos. 8, 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. 8) is DENIED,

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

BACKGROUND

Plaintiff protectively filed an application for SSI on August 30, 2018, alleging disability

beginning July 27, 2016 (the disability onset date), due to scoliosis and bipolar disorder. Transcript

(“Tr.”) 191-202., 211. Plaintiff’s claim was denied initially on December 20, 2018, after which he

requested an administrative hearing. Tr. 115-26, 127-29. On December 23, 2019, Administrative

Law Judge Michael J. Stacchini (“the ALJ”) presided over a video hearing from White Plains,

New York. Tr. 15. Plaintiff appeared and testified in Niagara Falls, New York, and was represented

by Anthony DeMarco, an attorney. Id. Roxana Rogers-Sullivan, an impartial vocational expert

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

The ALJ issued an unfavorable decision on February 12, 2020, finding that Plaintiff was

not disabled. Tr. 15-24. On September 4, 2020, the Appeals Council denied Plaintiff’s request for

further review. Tr. 1-6. The ALJ’s February 12, 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 his February 12, 2020 decision:

1. The claimant has not engaged in substantial gainful activity since August 30, 2018, the

application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairments: cannabis use disorder, adjustment

disorder, bipolar disorder, and scoliosis (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 full range of medium work

as defined in 416.967(c)1 except that he can engage in frequent stooping, and is able to

understand, remember, and carry out simple, routine tasks throughout an eight-hour work

day with regularly scheduled breaks at two hour intervals. Additionally, he can have

occasional interaction with the general public, coworkers, and supervisors.

5. The claimant is capable of performing past relevant work as an Industrial Cleaner (DOT

No. 381.687-018, medium exertion, SVP 2). This work does not require the performance

of work-related activities precluded by the claimant’s residual functional capacity (20 CFR

416.965).

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

August 30, 2018, the date the application was filed (20 CFR 416.920(f)).

Tr. 15-24.

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

benefits protectively filed on August 30, 2018, the claimant is not disabled under section

1614(a)(3)(A) of the Social Security Act. Tr. 24.

ANALYSIS

Plaintiff asserts a single point of error. Plaintiff argues that the ALJ erred in finding the

opinion of consulting psychiatric examiner Gregory Fabiano, Ph.D. (“Dr. Fabiano”) partially

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).

persuasive, but then failing to incorporate Dr. Fabiano’s assessment of moderate limitations in

regulating emotions, controlling behavior, and maintaining well-being into the RFC finding. See

ECF No. 8-1 at 9-15.

The Commissioner argues in response that the ALJ properly determined that Dr. Fabiano’s

assessment was partially persuasive because it was well supported by his examination findings and

consistent with Plaintiff’s limited treatment and activities of daily living. However, argues the

Commissioner, Dr. Fabiano’s finding of moderate limitations in mental functioning does not

preclude the ability to perform unskilled work, and the ALJ incorporated Dr. Fabiano’s assessment

into Plaintiff’s RFC by limiting him to simple routine work with no more than occasional

interactions. See ECF No. 10-1 at 16-18. Further, argues the Commissioner, the ALJ’s RFC

finding was supported by substantial evidence, including Dr. Fabiano’s observations and

assessment, as well as the assessment of state agency psychological consultant. H. Tzetzo, M.D.

(“Dr. Tzetzo”), and Plaintiff’s unremarkable mental status examination findings. See id. at 14-16.

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

considered the medical opinion evidence and articulated good reasons for the persuasiveness

assigned in accordance with the Commissioner’s regulations and case law. The ALJ’s

determination that Plaintiff retained the RFC to perform simple routine work with no more than

occasional interactions was supported by substantial evidence, including the opinion evidence,

Plaintiff’s limited treatment, and his activities of daily living. Accordingly, the Court finds no

error.

The record reflects that Plaintiff was treated at Niagara Falls Mental Health Clinic

(“Niagara Falls”) for cannabis dependence and bipolar disorder from July 5, 2016 through

November 9, 2016. Tr. 573-600. Psychiatrist Hany Shehata, M.D. (“Dr. Shehata”), provided

medication management, and Bryn Lyon, LMSW (“Ms. Lyon”), provided individual counseling.

Tr. 573-600.

On July 5, 2016 and July 19, 2016, Ms. Lyon observed that Plaintiff was alert and

cooperative with constrained affect; he presented himself in an appropriate manner; his speech was

logical and coherent; his mood was euthymic; his recent and remote memory skills were normal;

and his attention span and concentration skills were intact. Tr. 574, 584. On July 5, 2016, Ms.

Lyon assessed that Plaintiff remained in control of his ability to non-violently respond to stressors.

Tr. 576. On July 18, 2016 and August 22, 2016, Dr. Shehata observed that Plaintiff was friendly,

pleasant, and in full control of his impulses. Tr. 578, 589. On November 9, 2016, Plaintiff was

discharged for non-compliance with attending scheduled appointments. Tr. 597.

Plaintiff established care at Community Health Center of Buffalo (“CHCB”) on September

28, 2016, where he was seen by nurse practitioner Daryl Barber (“Mr. Barber”).2 Tr. 294-97.

Plaintiff reported “chronic lower back pain managed with ibuprofen with little effect.” Tr. 294.

Plaintiff was seen for an annual physical on December 22, 2017, again complaining of lower back

pain. Tr. 298-301. He reported a history of mental illness but was not taking any medications. Tr.

298. He was started on ibuprofen and referred to physical therapy. Tr. 299.

2 The Court notes that the ALJ incorrectly referred to Mr. Barber as “Dylan Barber.” Tr. 22.

On January 23, 2018, Plaintiff was seen for physical therapy, complaining of back pain

from the lumbar spine to the shoulder pain. Tr. 305-08. Although Plaintiff reported a history of

scoliosis, it was noted that a 2014 x-ray showed no scoliosis. Tr. 305. On physical examination,

he had decreased lordosis and mild kyphosis but full range of motion. Tr. 306. When Plaintiff was

advised that physical therapy would consist of an exercise regime, he declined, stating that he was

afraid exercise would increase his pain. Id. He also declined heat and cold modalities. Id. The

physical therapist referred Plaintiff to a spine specialist. Id.

On May 29, 2018, Plaintiff was seen by Julia Gajewski, ANP-C (“Ms. Gajewski”), at

University of Buffalo Neurosurgery (“UB Neurosurgery”), for sclerosis and burning pain down

his back Tr. 664. Plaintiff had been referred to UB Neurosurgery by Mr. Barber. Id. Ms. Gajewski

ordered physical therapy on June 6, 2018, but the referral was placed on hold. Tr. 320. No further

treatment or follow up with UB Neurosurgery appears in the record.

On September 4, 2018, Plaintiff was seen at CHCB for complaints of back pain and

completion of DSS paperwork. Tr. 302-03. Plaintiff told Mr. Barber that “he followed up with a

back specialist and physical therapy [and] both told him there is nothing wrong with his back.” Tr.

302. Mr. Barber assessed that Plaintiff “[was] able to work with no restrictions.” Id. Upon

examination, Mr. Barber observed that Plaintiff’s gait was normal, and he demonstrated full

muscle strength throughout his arms and legs. Id. Plaintiff was advised to continue to use NSAIDs

as needed for his back pain. Id.

Dr. Fabiano conducted a psychiatric evaluation on October 29, 2018. Plaintiff complained

of sleep difficulties, depressed mood, extreme anger, irritability, and social withdrawal. Tr. 332-

33. Plaintiff reported that he smoked marijuana two or three times per week. Tr. 333. Plaintiff

further reported that he cleaned, cooked, watched movies, managed his money, and shopped. Tr.

335. Upon mental status examination, Dr. Fabiano observed that Plaintiff was cooperative, and his

manner of relating, social skills, and overall presentation were adequate. Tr. 333. Plaintiff’s

expressive and receptive language skills were also adequate; and his thought processes were

coherent and goal directed, with no hallucinations, delusions, nor paranoia. Tr. 334. Plaintiff

reported that his mood was “mixed.” Id. Dr. Fabiano observed that Plaintiff’s affect was apathetic;

he was fully oriented; his attention span and concentration skills were grossly intact. Id. Plaintiff’s

recent and remote memory skills were mildly impaired due to distractibility; his intellectual

functioning was within the average-to-below-average range; and his general fund of information

was somewhat limited. His insight and judgment were fair. Id.

Dr. Fabiano diagnosed cannabis, substance use disorder; and chronic adjustment disorder

with disturbance of mood and conduct. Tr. 335. Dr. Fabiano opined that Plaintiff’s substance abuse

and psychiatric problems were not significant enough to interfere with his daily functioning. Tr.

335. Dr. Fabiano assessed no limitations in making work-related decisions, sustaining

concentration and performing a task at a consistent pace, and sustaining an ordinary routine and

regular attendance at work; mild limitations in understanding, remembering, and applying simple

instructions; and moderate limitations in interacting with co-workers, supervisors, and/or the

public, as well as regulating emotions, controlling behavior, and maintaining well-being. Id.

Consultative physician Rita Figueroa, M.D. (“Dr. Figueroa”), examined Plaintiff on

October 29, 2018. Tr. 338-40. Plaintiff complained of back pain due to scoliosis. Tr. 338. Upon

examination, Dr. Figueroa observed that Plaintiff’s gait and stance were normal; his squat was full;

he exhibited no difficulty changing for the examination, getting on and off the examination table,

or rising from a seated position. Tr. 339. Plaintiff exhibited diminished ranges of motion in his

cervical spine and lumbar spine; full muscle strength and full ranges of motion; normal reflexes

and sensations throughout his arms and legs; hand and finger dexterity were intact; and he

demonstrated full grip strength, bilaterally. Tr. 340. Dr. Figueroa diagnosed chronic back pain and

assessed moderate limitations in repetitive bending, heavy lifting, and carrying. Id.

State agency psychological consultant Dr. Tzetzo reviewed the evidence of record on

December 13, 2018. Tr. 76-77. Dr. Tzetzo assessed mild limitations in Plaintiff’s ability to

understand, remember, and apply information; interact with others; concentrate, persist, or

maintain pace; and adapt or manage oneself and opined that Plaintiff’s mental impairment was not

severe. Id.

Plaintiff was treated for cannabis use disorder at Northpointe Council, Inc. (“NCI”) from

July 23, 2019 through September 28, 2019. Tr. 484. The treatment records indicate that Plaintiff

had been “referred to NCI by DSS.”3 Id. After three assessment appointments, Plaintiff was

admitted to outpatient treatment on July 23, 2019. Id. He was to attend group sessions twice per

week and individual sessions with addictions counselor Marissa Cutter (“Ms. Cutter”) once per

week. Id. Ms. Cutter noted that throughout treatment Plaintiff continued to test positive for

cannabis and alcohol; refused to seek a higher level of treatment; and discontinued outpatient

services. Id. In an undated letter, Ashley Jachimiak, Program Director at NCI, noted that Plaintiff

had been there “numerous times and has a pattern of not engaging in treatment and refusing

recommendations for a higher level of care.” Tr. 483; see Tr. 370, 393, 417, 442.

On October 8, 2019, Plaintiff was seen as a new patient at Niagara Falls Memorial Primary

Care. Tr. 616-19. He reported that he suffered from bipolar disorder and back pain and requested

a referral to a chiropractor. Tr. 616. His PHQ-9 score indicated mild depressive symptoms. On

physical examination, he was noted to have full range of motion without pain. Tr. 617.

3 A note from Ms. Lyon dated February 26, 2017 indicates that Plaintiff was “mandated by DSS for a substance abuse

evaluation which he missed and now is sanctioned by DSS.” Tr. 487.

Plaintiff argues that the Commissioner’s disability determination was erroneous, because

the ALJ’s RFC determination was not supported by substantial evidence. A claimant’s RFC is the

most he can still do despite his limitations and is assessed based on an evaluation of all relevant

evidence in the record. See 20 C.F.R. §§ 404.1520(e), 404.945(a)(1), (a)(3); SSR 96-8p, 61 Fed.

Reg. 34,474-01 (July 2, 1996). At the hearing level, the ALJ has the responsibility of assessing the

claimant’s RFC. See 20 C.F.R. § 404.1546(c); SSR 96-5p, 61 Fed. Reg. 34,471-01 (July 2, 1996);

see also 20 C.F.R. § 404.1527(d)(2) (stating the assessment of a claimant’s RFC is reserved for

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

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

deciding these issues [including RFC] is reserved to the Commissioner”); Breinin v. Colvin, No.

5:14-CV-01166(LEK TWD), 2015 WL 7749318, at *3 (N.D.N.Y. Oct. 15, 2015), report and

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

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

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

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

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

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

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

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

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

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

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

omitted).

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

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

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

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

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

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

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

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

for remand.).

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

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

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

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

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

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

perform the RFC as found by the ALJ.).

Effective for claims filed on or after March 27, 2017, the Social Security Agency

comprehensively revised its regulations governing medical opinion evidence creating a new

regulatory framework. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82

Fed. Reg. 5844 (Jan. 18, 2017) (technical errors corrected by 82 Fed. Reg. 15, 132-01 (March 27,

2017). Plaintiff filed his application on August 30, 2018, and therefore, the 2017 regulations are

applicable to his claim.

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

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

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

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

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

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

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

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

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

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

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

are supportability and consistency. Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Finally, Congress granted the Commissioner exceptionally broad rulemaking authority

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

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

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

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

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

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

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

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

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

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

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

Campbell, 461 U.S. at 466).

Contrary to Plaintiff’s contentions, the ALJ properly analyzed the opinion evidence and

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

the ALJ’s RFC finding that Plaintiff retained the RFC to perform simple routine work with no

more than occasional interactions, and thus, he was able to perform his past relevant work, as well

as other work that exists in significant numbers in the national economy, and was, therefore, not

disabled. Tr. 19, 23-24.

Plaintiff contends that the ALJ’s RFC determination failed to incorporate Dr. Fabiano’s

assessment of moderate limitations in regulating emotions, controlling behavior, and maintaining

well-being. See ECF No. 8-1 at 14-15. As noted above, Dr. Fabiano assessed that Plaintiff had no

limitations in making work-related decisions, sustaining concentration and performing a task at a

consistent pace, and sustaining an ordinary routine and regular attendance at work; mild limitations

in understanding, remembering, and applying simple instructions; and no more than moderate

limitations in interacting with co-workers, supervisors, and/or the public; as well as regulating

emotions, controlling behavior, and maintaining well-being. Tr. 335.

The ALJ properly considered Dr. Fabiano’s opinion and found it partially persuasive. A

consultative psychologist’s opinion may serve as substantial evidence in support of an ALJ’s

decision if the evidence of record supports the opinion, as it does here. See Petrie v. Astrue, 412

F. App’x 401, 405 (2d Cir. 2011) (citing Mongeur v. Heckler, 722 F.2d at 1039). The ALJ noted

that Dr. Fabiano’s opinion was well supported by his own examination and consistent with

Plaintiff’s limited treatment and his activities of daily living, including care of his children. Tr. 21,

40, 253-55, 359. However, the ALJ found that Plaintiff’s cannabis use disorder, bipolar disorder,

and adjustment disorder are indicative of at least mild (but no more than moderate) limitations in

all of his “B” criteria. Tr. 21.

Notably, a finding of moderate limitations in mental functioning does not preclude the

ability to perform unskilled work. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (holding that

ALJ’s determination that claimant could perform simple work tasks was well supported where

“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.”);

Whipple v. Astrue, 479 F. App’x. 367, 370 (2d Cir. 2012) (holding that a consultative

psychologist’s finding of moderate limitations in social functioning supported the ALJ's

determination that plaintiff was capable of performing work that “involved simple tasks and

allowed for a low-stress environment.”). Here, the ALJ incorporated Dr. Fabiano’s assessment into

Plaintiff’s RFC by limiting him to simple routine work with no more than occasional interactions.

Tr. 19. Thus, Plaintiff’s contention that the ALJ failed to incorporate Dr. Fabiano’s assessment of

moderate limitations in regulating emotions, controlling behavior, and maintaining well-being into

the RFC finding is meritless.

Furthermore, the ALJ was not required to adopt Dr. Fabiano’s opinion wholesale, as

Plaintiff appears to argue. See ECF No. 8-1 at 9-15. Nor is the ALJ required to rely on an opinion

that mirrored the RFC. 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) (“Although the ALJ’s conclusion may not perfectly correspond with

any of the opinions of medical sources cited in his decision, he was entitled to weigh all of the

evidence available to make an RFC finding that was consistent with the record as a whole.”). 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).

Moreover, there is no requirement that an ALJ’s RFC finding be based on a 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).

The assessment of state agency psychological consultant Dr. Tzetzo further supports the

ALJ’s RFC determination. Tr. 21, 76-77. Dr. Tzetzo assessed merely mild limitations in Plaintiff’s

ability to understand, remember, and apply information; interact with others; concentrate, persist,

or maintain pace; and adapt or manage oneself. Tr. 76-77. State agency psychological consultants,

such as Dr. Tzetzo, are highly qualified psychologists, who are experts in Social Security disability

evaluations, and an ALJ is entitled to rely on their opinions. 20 C.F.R. § 416.913a(b)(1).

Moreover, as noted above, opinion evidence is only one type of evidence that an ALJ is

required to consider. Here, in addition to the opinion evidence, the ALJ also properly noted

Plaintiff’s unremarkable mental status examination findings and conservative treatment. Tr. 20.

See Rivera v. Colvin, No. 1:14-CV-00816 (MAT), 2015 WL 6142860, at *6 (W.D.N.Y. Oct. 19,

2015) (citing Netter v. Astrue, 272 F. App’x 54, 56 (2d Cir. 2014)) (ALJ may consider conservative

treatment); see also 20 C.F.R. § 416.926a(a)(3) (ALJ must consider the effects of medications or

other treatment on a claimant’s ability to function); Reices-Colon v. Astrue, 523 F. App’x 796, 799

(2d Cir. 2013) (improvement with treatment is properly considered in concluding claimant not

disabled).

As the ALJ noted, although Plaintiff has been diagnosed with bipolar disorder and

adjustment disorder, his reported symptoms were sporadic and inconsistent. Tr. 20-21, 294, 295,

298-99, 303, 315, 324, 335, 404, 429-30. The ALJ also noted that on October 8, 2019, Plaintiff

was given a number of mental health screens, including a PHQ 9 and a GAD 7, and, overall, his

symptoms were assessed as mild. Tr. 616. The ALJ further noted that Plaintiff was taking no

medications at the time of his hearing, or at the time of his October of 2018 consultative

examinations. Tr. 21, 48, 332, 339. Furthermore, Plaintiff’s psychiatric treatment providers, Dr.

Shehata and Ms. Lyon, observed that his mental status was unremarkable. Tr. 574, 578, 584, 589.

The ALJ also noted Plaintiff’s daily activities. Tr. 20. 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).

The ALJ noted that Plaintiff prepares simple meals and takes his children to the park; and although

Plaintiff alleged difficulty around others, he had good family relationships and socialized with

acquaintances playing video games. Tr. 20, 252-58, 335, 338-39.

Based on the foregoing, substantial evidence, including Dr. Fabiano’s observations and

assessment, the assessment of state agency psychological consultant Dr. Tzetzo, Plaintiff’s

conservative treatment and unremarkable mental status examinations, and his daily activities

supports the ALJ’s finding that Plaintiff retained the RFC to perform simple routine work with no

more than occasional interactions. Tr. 19.

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 he has failed to do. 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). 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

entire record including the medical opinion evidence, the treatment reports, and Plaintiff's

testimony, 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. 8) 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.

k { Lye | / Ft

DON D. BUS

UNITED STATES MAGISTRATE JUDGE

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