Allen v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

SYMPHONIE A.,

DECISION

Plaintiff, and

v. ORDER

KILOLO KIJAKAZI,1 Commissioner of 21-CV-75F

Social Security, (consent)

Defendant.

______________________________________

APPEARANCES: LAW OFFICES OF KENNETH HILLER

Attorneys for Plaintiff

KENNETH R. HILLER and

MELISSA MARIE KUBIAK, of Counsel

6000 North Bailey Avenue

Suite 1A

Amherst, New York 14226

TRINI E. ROSS

UNITED STATES ATTORNEY

Attorney for Defendant

Federal Centre

138 Delaware Avenue

Buffalo, New York 14202

and

ANDREEA LAURA LECHLEITNER

Special Assistant United States Attorney, of Counsel

Social Security Administration

Office of General Counsel

6401 Security Boulevard

Baltimore, Maryland 21235

JURISDICTION

On October 3, 2022, the parties to this action consented pursuant to 28 U.S.C.

1 Kilolo Kijakazi became the Acting Commissioner of the Social Security Administration on July 9, 2021,

and, pursuant to Fed.R.Civ.P. 25(d), is substituted as Defendant in this case. No further action is

required to continue this suit by reason of sentence one of 42 U.S.C. § 405(g).

§ 636(c) to proceed before the undersigned in accordance with this court’s June 29,

2018 Standing Order (Dkt. 8). The matter is presently before the court on motions for

judgment on the pleadings filed by Plaintiff on December 2, 2021 (Dkt. 5), and by

Defendant on December 6, 2021 (Dkt. 6).

BACKGROUND

Plaintiff Symphonie A. (“Plaintiff”), brings this action under Titles II and XVI of the

Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial

review of the Commissioner of Social Security’s final decision denying Plaintiff’s

applications (“applications”) filed with the Social Security Administration (“SSA”) on

September 22, 2015, for Social Security Disability Income under Title II of the Act

(“SSDI”), and for Supplemental Security Income under Title XVI of the Act (“SSI”)

(together, “disability benefits”). Plaintiff alleges she became disabled on July 9, 2014,

based on multiple sclerosis (“MS”), and bipolar disorder. AR2 at 206, 208, 260.

Plaintiff’s applications initially were denied on February 18, 2016. AR at 12, 120-27. On

February 21, 2018, Plaintiff filed an untimely request for an administrative hearing, AR

at 128-29, and after a pre-hearing conference on May 23, 2018, AR at 147, by letter

dated April 16, 2019, Plaintiff’s request for an administrative hearing was granted. See

AR at 148-63 (Notice of Hearing scheduling Plaintiff’s administrative hearing for

September 23, 2019).3

2 References to “AR” are to the pages of the Administrative Record electronically filed by Defendant on

July 6, 2021 (Dkt. 4).

3 The record does not indicate why Plaintiff delayed in requesting and administrative hearing or why the

hearing was permitted despite the apparently untimely request.

On September 23, 2019, an administrative hearing (“the administrative hearing”)

was held on Buffalo, New York, before Administrative Law Judge (“ALJ”) Bryce Baird

(“the ALJ”). AR at 79-95. Plaintiff appeared without legal counsel, and the matter was

adjourned to permit Plaintiff to submit recent medical records. On January 7, 2020, the

administrative hearing resumed before the ALJ. AR at 28-78. Appearing and testifying

at the resumed administrative hearing were Plaintiff, represented by Megan Kale, Esq.,

and vocational expert Christina Boardman (“the VE”).

On March 10, 2020, the ALJ issued a decision denying Plaintiff’s claim, AR at 9-

27 (“ALJ’s Decision”), which Plaintiff timely appealed to the Appeals Council. AR at

199-201. On December 8, 2020, the Appeals Council adopted the ALJ’s Decision that

Plaintiff was not disabled, AR at 1-6, thus rendering the ALJ’s Decision the

Commissioner’s final decision. On January 15, 2021, Plaintiff commenced the instant

action seeking review of the ALJ’s Decision denying Plaintiff disability benefits.

On December 2, 2021, Plaintiff moved for judgment on the pleadings (Dkt. 5

(“Plaintiff’s Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion

for Judgment on the Pleadings (Dkt. 5-1) (“Plaintiff’s Memorandum”). On December 6,

2021, Defendant moved for judgment on the pleadings (Dkt. 6) (“Defendant’s Motion”),

attaching Commissioner’s Brief in Support of Her Motion for Judgment on the Pleadings

and in Response to Plaintiff’s Brief (Dkt. 6-1) (“Defendant’s Memorandum”). Filed on

January 18, 2022, was Plaintiff’s Reply to Commissioner’s Memorandum in Support

(Dkt. 7) (“Plaintiff’s Reply”). Oral argument was deemed unnecessary.

Based on the following, Plaintiff’s Motion is DENIED; Defendant’s Motion is

GRANTED.

FACTS4

Plaintiff Symphonie A. (“Plaintiff”), born July 9, 1993, was 21 years old as of her

alleged disability onset date (“DOD”) of July 9, 2014, and 26 years old as of March 13,

2020, the date of the ALJ’s Decision. AR at 12, 22, 206, 208, 244, 287. Plaintiff lived in

a house with her grandmother and her grandmother’s two children. AR at 42-43.

Plaintiff was never married and has no children. AR at 42-43, 92, 207.

Plaintiff attended regular classes in school, graduated high school, obtained a

Bachelor’s degree in 2019, while Plaintiff lived and attended college in New York City.

AR at 42-45, 261. Plaintiff has a driver’s license, owns a vehicle, and drives. AR at 42,

209, 274. Plaintiff has past work experience as a child daycare provider, front desk

clerk at a beauty salon, retail sales associate, as a representative at a call center, and

also worked in various restaurants as a server and hostess, AR at 50-53, 261, 279-86,

but alleges she last worked on July 14, 2015 because of her impairments. AR at 260.

It is undisputed Plaintiff was initially diagnosed with MS in 2007, AR at 587, for

which Plaintiff commenced treatment at Dent Neurologic Institute (“Dent”), with Malti

Patel, M.D. (“Dr. Patel”), AR at 390-93, and was followed at Dent for her MS by nurse

practitioner (“NP”) Katelyn E. McCormack (“NP McCormack”). AR at 353-57, 366-71,

374-82, 386-90. On September 22, 2014, Plaintiff underwent an initial psychiatric

evaluation at Dent by Horacio Capote, M.D. (“Dr. Capote”), who assessed Plaintiff with

mood disorder with depressive features due to general medical condition, generalized

anxiety disorder, MS, vitamin D deficiency, history of pulmonary embolism, and a

clotting defect. AR at 383-86. On September 1, 2015, Plaintiff underwent another

4 In the interest of judicial economy, recitation of the Facts is limited to only those necessary for

determining the pending motions for judgment on the pleadings.

psychiatric evaluation at Dent by psychiatric physician assistant (“PPA”) Michael T.

Asbach (“PPA Asbach”), who diagnosed bipolar disorder, generalized anxiety disorder,

and vitamin D deficiency. AR at 371-74. On October 5, 2015, Plaintiff was treated for

complaints of bilateral hip and knee pain at Dent by physical medicine and rehabilitation

specialist Leonard Kaplan, DO (“Dr. Kaplan”), who diagnosed trochanteric bursitis of

both hips and referred Plaintiff for physical therapy. AR at 954-59. On November 20,

2019, Plaintiff underwent a neurologic re-evaluation at Dent by Amir C. Mazhari, M.D.

(“Dr. Mazhari”), who reported Plaintiff had tried multiple disease modifying therapies

(“DMT”) to treat her MS all of which produced unwanted side effects prompting Plaintiff

to discontinue DMT medications and opt instead to treat her MS symptoms with medical

marijuana which Plaintiff did not use often because of costs. AR at 739-43.

Between January 8, 2015 and September 11, 2017, Plaintiff was treated for

bipolar disorder and PTDS at CMH Counseling (“CMH”) where she saw Judith R.

Brown, LCSWR (“Counselor Brown”), who completed a medical questionnaire (“medical

questionnaire”).5 AR at 857-62. In connection with her disability benefits applications,

on February 2, 2016, Plaintiff underwent both a consultative internal medical

examination by Hongbiao Liu, M.D. (“Dr. Liu”), AR at 587-91, and a psychiatric

evaluation by psychologist Janice Ippolito, Psy.D. (“Dr. Ippolito”). AR at 593-97. On

February 9, 2016, State Agency psychologist Dr. A. Dipeolu conducted a psychiatric

review technique assessment based on a review of Plaintiff’s medical records and

concluded Plaintiff has an affective disorder causing at most mild limitations to Plaintiff’s

mental functioning. AR at 96-117. At Plaintiff’s request, NP McCormack completed

5 The court notes medical questionnaire completed by Counselor Brown is dated April 9, 2009, which is

almost six years before Plaintiff commenced treatment at CMH.

Physical Treating Medical Source Statements on April 11, 2019, AR at 864-68, and

November 4, 2019. AR at 872-76.

DISCUSSION

1. Standard and Scope of Judicial Review

A claimant is “disabled” within the meaning of the Act and entitled to disability

benefits when she is unable “to engage in any substantial gainful activity by reason of

any medically determinable physical or mental impairment which . . . has lasted or can

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

416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s

determination that a claimant is not disabled if the factual findings are not supported by

substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),

1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In

reviewing a final decision of the SSA, a district 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) (internal quotation marks and citation omitted). “Substantial evidence is more

than a mere scintilla. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. It is not, however, the district court’s

function to make a de novo determination as to whether the claimant is disabled; rather,

“the reviewing court is required to examine the entire record, including contradictory

evidence and evidence from which conflicting inferences can be drawn” to determine

whether the SSA’s findings are supported by substantial evidence. Id. “Congress has

instructed . . . that the factual findings of the Secretary,6 if supported by substantial

evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.

1982).

In short, the issue is not whether substantial evidence supports the claimant’s

argument, but “whether substantial evidence supports the ALJ’s decision.” Bonet ex rel.

T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013) (italics in original). “Under this ‘very

deferential standard of review,’ ‘once an ALJ finds facts, we can reject those facts only if

a reasonable factfinder would have to conclude otherwise.’” Id. at 58-59 (quoting Brault

v. Social Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (italics in original).

2. Disability Determination

The definition of “disabled” is the same for purposes of receiving SSDI and SSI

benefits. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable

regulations set forth a five-step analysis the Commissioner must follow in determining

eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v.

Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir.

1982). The first step is to determine whether the applicant is engaged in substantial

gainful activity during the period for which the benefits are claimed. 20 C.F.R. §§

404.1520(b) and 416.920(b). The second step is whether the applicant has a severe

impairment which significantly limits the physical or mental ability to do basic work

activities, as defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and

416.920(c). Third, if there is an impairment and the impairment, or its equivalent, is

6 Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of

the Secretary of Health and Human Services in Social Security cases was transferred to the

Commissioner of Social Security, effective March 31, 1995.

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or

“the Listings”), and meets the duration requirement of at least 12 continuous months,

there is a presumption of inability to perform substantial gainful activity, and the claimant

is deemed disabled, regardless of age, education, or work experience. 42 U.S.C. §§

423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth

step, however, if the impairment or its equivalent is not listed in Appendix 1, the

Commissioner must then consider the applicant’s “residual functional capacity” or “RFC”

which is the ability to perform physical or mental work activities on a sustained basis,

notwithstanding the limitations posed by the applicant’s collective impairments, see 20

C.F.R. §§ 404.1520(e)-(f), and 416.920(e)-(f), and the demands of any past relevant

work (“PRW”). 20 C.F.R. §§ 404.1520(e) and 416.920(e). If the applicant remains

capable of performing PRW, disability benefits will be denied, id., but if the applicant is

unable to perform PRW relevant work, the Commissioner, at the fifth step, must

consider whether, given the applicant’s age, education, and past work experience, the

applicant “retains a residual functional capacity to perform alternative substantial gainful

work which exists in the national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.

1999) (quotation marks and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c).

The burden of proof is on the applicant for the first four steps, with the Commissioner

bearing the burden of proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and

416.920(a)(4); Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). All five steps need

not be addressed because if the claimant fails to meet the criteria at either of the first

two steps, the inquiry ceases and the claimant is not eligible for disability benefits, but if

the claimant meets the criteria for the third or fourth step, the inquiry ceases with the

claimant eligible for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920.

3. Analysis of Plaintiff’s Arguments

In the instant case, the ALJ found Plaintiff meets the insured status requirements

for SSDI though December 31, 2023, AR at 14, and has engaged, through a

combination of part-time or short-term positions, in substantial gainful activity (“SGA”)

since July 9, 2014, Plaintiff’s alleged DOD, but only for parts of the relevant period

including all of 2017 and the first quarter of 2018.7 AR at 14-15. The ALJ found Plaintiff

suffers from the severe impairments of MS, bursitis of the hips, and cervical stenosis, id.

at 15, but that other conditions alleged by Plaintiff are not severe impairments including

a history of pulmonary embolism, hernia repair, and vitamin D deficiency, as well as

medically determinable mental impairments including bipolar disorder and anxiety

disorder. Id. at 15. The ALJ also found Plaintiff does not have an impairment or

combination of impairments meeting or medically equal to the severity of any listed

impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 15-17. Despite her

impairments, the ALJ found Plaintiff retains the RFC to perform sedentary work limited

to lifting, carrying, pushing and pulling 10 lbs. occasionally and 5 lbs. frequently, can sit

for up to six hours in an eight-hour workday, stand or walk for up to six hours in an

eight-hour workday, occasionally operate foot controls, bilaterally, occasionally climb

ramps and stairs, can never climb ropes, ladders, or scaffolds, can occasionally

balance, stoop, and kneel, never crouch or crawl, never work with excessive cold, can

7 The ALJ did not specifically determine that Plaintiff’s participation in such SGA was insufficient to render

Plaintiff ineligible for disability benefits, but “elected to proceed through the remainder of the sequential

evaluation process.” AR at 14-15.

tolerate moderate noise, never work with excessive vibration, unprotected heights, or

moving machinery, can perform simple, routine tasks that can be learned after a short

demonstration or within 30 days, can never perform production rate or pace work, can

perform work that requires doing the same tasks every day with little variation in

location, hours, or tasks, work that allows for the individual to be off-task 5% of the

workday in addition to normal breaks, and work that does not require more than simple

work-related decisions, but cannot be required to independently develop work strategies

or identify workplace needs, can have no interaction with 50 or more people at once,

and can have occasional interaction with the public. Id. at 18-21. The ALJ further found

Plaintiff is incapable of performing her PRW, id. at 21, but that based on Plaintiff’s age

on the alleged DOD of 21, and given Plaintiff’s RFC, education, and ability to

communicate in English, with transferability of skills irrelevant to the disability

determination, there are jobs existing in significant numbers in the national economy

that Plaintiff is capable of performing including as a charge account clerk, order clerk,

assembler, stuffer, addresser, and table worker. Id. at 21-22. Accordingly, the ALJ

found Plaintiff was not disabled as defined in the Act through the date of the ALJ’s

Decision. Id. at 22.

Plaintiff raises two challenges to the ALJ’s Decision including that the ALJ erred

by failing to “tether very specific limitations in the RFC” to any medical or other evidence

in the record, Plaintiff’s Memorandum at 14-17, and by formulating an RFC that fails to

adequately account for the impact of Plaintiff’s limited ability to deal with stress. Id. at

18-22. In opposition, Defendant argues the ALJ properly formulated an RFC that

permitted Plaintiff to be off-task for 5% of the workday, Defendant’s Memorandum at 7-

16, and properly accounted for the limitations that stress posed to Plaintiff’s ability to

work. Id. at 16-23. In reply, Plaintiff argues that the ALJ’s specific limitation that Plaintiff

would be off-task for 5% of the workday is not supported by substantial evidence.

Plaintiff’s Reply at 1-5.

Plaintiff’s RFC formulated by the ALJ included a determination that Plaintiff “can

perform work that allows the individual to be off task 5% of the workday in addition to

normal breaks. . . .” AR at 18. In arguing that the ALJ did not properly evaluate

Plaintiff’s off-task limitation in formulating Plaintiff’s RFC, Plaintiff asserts the ALJ’s

specific determination that Plaintiff would be off-task for 5% of the workday is not

supported by any evidence in the record but, rather, conflicts with medical opinions of

record including those of NP McCormack, Counselor Brown, and Dr. Ippolito. Plaintiff’s

Memorandum at 15-16. Plaintiff further argues that Counselor Brown opined Plaintiff’s

mental health impairments required Plaintiff be off-task at least 20% of the time, which,

when considered in conjunction with the VE’s testimony at the administrative hearing

that employers would tolerate an employee being off-task up to 15% of the workday,

would necessarily result in a determination that Plaintiff is disabled. Id. at 16-17.

“Specific RFC assessments must be based on evidence in the record, not on an

‘ALJ's own surmise.’” Elder v. Comm’r of Soc. Sec., 2019 WL 6320355, at * 5

(W.D.N.Y. Nov. 26, 2019) (“Elder”) (italics added) (quoting Cosnyka v. Colvin, 576

Fed.Appx. 43, 46 (2d Cir. 2014) (“Cosnyka”)). Relevantly, in Cosnyka, the Second

Circuit rejected the ALJ’s specific determination that the claimant would be off-task for

breaks for six minutes of each hour which was not supported by any evidence in the

record and, thus, was based only on the ALJ’s own surmise. Cosnyka, 576 Fed.Appx.

at 46. In Cosnyka, the ALJ “translated” medical evidence suggesting that the claimant

would be off task “ten percent of the workday” into a determination that the claimant

would be off task “six minutes out of every hour.” Id. at 46. Because “[t]here [was] no

evidence in the record to the effect that [the claimant] would be able to perform

sedentary work if he could take a six-minute break every hour, rather than some other

duration and frequency amounting to ten percent of the workday . . . ,” the Second

Circuit ordered the matter remanded to the ALJ. Id. Simply put, the ALJ may not weigh

evidence and somehow “arrive at specific limitations that do not appear anywhere in

that evidence.” Heckman v. Comm'r of Soc. Sec., 2019 WL 1492868, at *4 (W.D.N.Y.

Apr. 4, 2019) (citing McBrayer v. Sec'y of Health & Human Servs., 712 F.2d 795, 799

(2d Cir. 1983) (“[T]he ALJ cannot arbitrarily substitute his own judgment for competent

medical opinion.”)). Nevertheless, in the instant case, the ALJ’s formulation of the

RFC’s provision that Plaintiff could perform work that “allows,” but does not require,

Plaintiff to be off-task for 5% of the workday does not necessarily require remand. See

James G. v. Comm’r of Soc. Sec., 2022 WL 2180158, at * 7 (W.D.N.Y. June 16, 2022)

(“James G.”) (affirming the ALJ’s determination that the plaintiff was not disabled where

the 5% off-task limitation assigned by the ALJ was supported by the lack of any

evidence showing a greater off-task percentage of time should have been used

because “the ALJ carefully crafted the RFC so that it does not specifically require the

off-task time, but rather, allows such off-task time,” which was “further highlighted by the

question posed to the VE, i.e., not that Plaintiff will be off task 5% of the workday but

rather whether such jobs would allow Plaintiff to be off task 5% of the day.”). Consistent

with the relevant caselaw, here, the court construes the ALJ’s determination that

Plaintiff could work a job “that allows the individual to be off-task 5% of the workday,”

AR at 18, as allowing, but not requiring, Plaintiff to be off-task for a specific amount of

time, i.e., 5% of the workday.

Nor is remand required by the fact that the ALJ’s determination that Plaintiff could

perform a job that permitted her to be off-task for 5% of the workday is not “tethered” to

any medical evidence in the record, as Plaintiff argues. Plaintiff’s Memorandum at 14-

17. Such argument ignores that Plaintiff bears the burden of establishing her RFC is

more restrictive than the ALJ’s determination. See Smith v. Berryhill, 740 Fed.Appx.

721, 726 (2d Cir. 2018) (denying remand where the plaintiff failed to meet his burden to

prove a more restrictive RFC than assessed by the ALJ) (citing 42 U.S.C § 423(d)(5));

Michael P. V. Commissioner of Soc. Sec., 2023 WL 21228, at * 7 (W.D.N.Y. Jan. 3,

2023) (declining to remand and granting the commissioner’s motion for judgment on the

pleadings where the plaintiff presented no evidence of functional limitations greater than

those found by the ALJ). Here, that the ALJ’s determination that Plaintiff could work a

job in which she was allowed to be off task for 5% of the workday is not “tethered” to

any particular medical evidence in the record, in the absence of any evidence in the

record suggesting Plaintiff would be off task more than 5% of the work day, establishes

only that the ALJ’s finding is more restrictive than the medical record supports such that

even if incorrect, the ALJ’s RFC determination is merely harmless error. See Ellen A. v.

Saul, 2021 WL 1087949, at * 4 (W.D.N.Y. Mar. 22, 2021) (ALJ’s determination that

Plaintiff’s RFC was more restrictive than what was supported by the medical evidence in

the record was favorable to the plaintiff and thus was harmless error).

Significantly, although Counselor Brown stated Plaintiff’s impairments caused

marked and extreme limitations in her ability to maintain concentration, persistence, or

pace, AR at 859, thereby giving rise to Counselor Brown’s opinion that Plaintiff would

have to be off-task for 20% of the workday, the ALJ gave this opinion “little weight” as it

“is neither consistent with other medical and psychological records nor with the

claimant’s functional level, which includes obtaining employment at the substantial

gainful activity level and completing a college degree.” AR at 15. Relevantly, the record

establishes that for all of 2017 and the first quarter of 2018, Plaintiff worked a

combination of jobs from which she earned income in excess of the SGA level, AR at

221, 222, and attended college in New York City from 2018 through 2019, earning her

bachelor’s degree in the summer of 2019. AR at 42. Further, the ALJ found numerous

inconsistencies between the administrative record and Counselor Brown’s opinion

including that the record shows Plaintiff attended mental health counseling only on

January 8 and 12, 2015, November 20, 2015, May 2, 2016, and was counseled by

telephone on September 10 and 11, 2018, AR at 15 (citing AR at 681-95, Plaintiff’s

counseling records with Counselor Brown at CMH), yet in her opinion, Counselor Brown

reported that between January 8, 2015 and September 11, 2017,8 Plaintiff received

counseling treatment “weekly to biweekly and intermittent.” AR at 857. Counselor

Brown also diagnosed Plaintiff with a personality disorder9 and PTSD, AR at 15 (citing

8 Counselor Brown’s reference to September 11, “2017” appears to be a typographical error as the

relevant treatment notes are devoid of any entry for September 11, 2017, but indicate Plaintiff sought

counseling with Brown by telephone on September 11, 2018. See AR at 694.

9 Anxiety, depressive and bipolar disorders, with which Plaintiff was repeatedly diagnosed, see AR at 371-

74, 383-86, and 596, are evaluated under the category of “depressive, bipolar and related disorders”

which are “characterized by an irritable, depressed, elevated, or expansive mood, or by a loss of interest

or pleasure in all or almost all activities, causing a clinically significant decline in functioning,” 20 C.F.R.

Part 404, Subpt. P, Appx. 1, § 12.00A.3, whereas personality disorders are evaluated under a separate

AR at 681-95), impairments that are not found elsewhere in the record. The ALJ’s grant

of “little weight” to Counselor Brown’s opinion thus is supported by substantial evidence

in the record.

Even where, as here, the ALJ’s RFC determination does not directly correspond

to any medical opinion in the record, the RFC determination will be upheld so long as it

is supported by the Plaintiff’s daily activities, treatment history, and consultative

examiner’s evaluations. See Wilson v. Colvin, 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’”); Kirkland v. Colvin, 2016 WL 850909, at *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). In the

instant case, the ALJ relied on Plaintiff’s reported activities of daily living which included

driving, cooking, cleaning, shopping, showering and dressing, AR at 17, 20 (citing AR at

588), the fact that after her alleged DOD, Plaintiff engaged in SGA for 5 consecutive

months, AR at 17 (citing 221, 222), completed college in New York City, id. (citing 42-

45), and maintained close relationships with some family members and her boyfriend

with whom she once resided. AR at 17 (citing 1051). The ALJ also considered that

Plaintiff’s hobbies included crocheting in which Plaintiff would engage for “multiple hours

daily.” AR at 18 (citing AR at 275). Plaintiff testified at the administrative hearing that

she is able to take care of and cook and clean for herself. AR at 57. On February 2,

category of “personality and impulse-control disorders” which “are characterized by enduring, inflexible,

maladaptive, and pervasive patterns of behavior.” 20 C.F.R. Part 404, Subpt. P, Appx. 1, § 12.00A.7.

2016, Plaintiff reported to Dr. Ippolito that she cooks, cleans, does laundry, grocery

shops, showers, bathes, dresses independently, drives, regularly interacts with friends,

maintains family relationships, takes care of her dog, and pursues her hobbies and

interests included watching movies. AR at 596. The ALJ was permitted to rely on such

activities in formulating Plaintiff’s RFC. See Lora v. Colvin, 2017 WL 4339479, at * 5

(S.D.N.Y. Sept. 12, 2017) (upholding ALJ’s finding plaintiff was not disabled where

plaintiff’s testimony of regularly attending college, daily performing routine self-care

activities, and socializing with friends was inconsistent with a finding of disability).

The ALJ also considered Plaintiff’s treatment records including Dr. Mazhari’s

November 20, 2019 progress note showing Plaintiff with intact sensation, intact

coordination, steady gait, full ability to walk on heels and toes, full motor strength except

for Plaintiff’s left upper extremity that was 4+/5 because of a left shoulder injury, and

equal reflexes. AR at 742. Dr. Mazhari further reported Plaintiff had not fallen in the

previous six months, AR at 740, and was able to regularly exercise, id., which Dr.

Mazhari encouraged, id. at 743. As Defendant argues, Defendant’s Memorandum at

11, a physician’s recommendation of exercise is consistent with a finding the claimant is

capable of light work. See Rivers v. Astrue, 280 Fed.Appx. 20, 22 (2d Cir. 2008)

(affirming the district court’s finding upholding the ALJ’s determination the claimant was

capable of light work where the claimant’s physician encouraged the claimant to

continue with her exercise regime). Significantly, other treatment notes from Dent show

Plaintiff, despite her MS, has a steady gait and normal mental functioning. AR at 725-

38. Further, NP McCormack similarly opined on April 11, 2019, that Plaintiff could both

sit and stand/walk for six hours in an 8-hour workday. AR at 866.

Moreover, in neither NP McCormack’s opinion of April 11, 2019, that Plaintiff’s

need to take unscheduled breaks would depend on the severity of her symptoms, AR at

866, or of November 4, 2019, that Plaintiff’s impairments “constantly” interfered with her

attention and concentration, AR at 873, does NP McCormack suggest Plaintiff would

need to be off-task for any specific amount of time. Insofar as Plaintiff, in arguing the

ALJ improperly found Plaintiff would need to be off-task for 5% of the workday, cites to

NP McCormack’s statement on the Physical Medical Source Statement form completed

on April 11, 2019, that Plaintiff would “sometimes need to take unscheduled breaks

during a working day,” Plaintiff’s Memorandum at 16 (citing AR at 866), not only is such

finding equivocal in that NP McCormack did not definitively stated Plaintiff would

regularly need unscheduled breaks, but also, that how often Plaintiff would need to take

unscheduled breaks was “unclear – depends on severity of symptoms.” AR at 866.

Thus, Plaintiff’s need to take unscheduled breaks as assessed by NP McCormack is, at

best, ambiguous and does not support that Plaintiff would be off-task for more than 5%

of a workday. The court observes that although the Physical Medical Source Statement

specifically asks the preparer to estimate how much the patient is likely to be “off task”

based on the patient’s symptoms, NP McCormack did not check any of the boxes next

to the six options, stated in increments of 5% from 0% to 25% or more. AR at 868.

Similarly, although NP McCormack estimated Plaintiff would likely be absent from work

four days per month, TR at 868, as the ALJ observed, AR at 20, this finding is

inconsistent with NP McCormack’s statement that Plaintiff’s MS symptoms are subject

to “flare-ups of debilitating symptoms at unknown times.” AR at 868. Moreover, the

ALJ found NP McCormack’s statements regarding Plaintiff’s need for unscheduled

breaks and absences from work to be inconsistent with NP McCormack’s treatment

notes, particularly those of September 25, 2019, when Plaintiff denied new symptoms,

reported using medical marijuana to manage chronic pain “with good results,” and

declined DMT in favor of a “holistic” approach to manage her MS including “following a

“self-care plan including dietary changes, exercising and taking multiple vitamins.” AR

at 623-26.

The ALJ also relied on the consultative opinions of Dr. Liu and Dr. Ippolito.

Defendant’s Memorandum at 20. Although aware of Plaintiff’s history of MS and

Plaintiff’s associated complaints of pain and weakness, Dr. Liu reported Plaintiff’s

prognosis was stable and dependent on the state of her MS development, AR at 590,

and opined Plaintiff has a mild limitation for prolonged walking, bending, and kneeling.

Id. Upon examining Plaintiff in consultation, Dr. Ippolito was aware of Plaintiff’s

diagnosis of bipolar disorder and anxiety disorder, and found Plaintiff had no limitations

with following and understanding simple directions and instructions, performing simple

tasks independently, learning new tasks, performing complex tasks independently, and

relating adequately with others, had mild limitations maintaining attention and

concentration and making appropriate decisions, moderate limitations maintaining a

regular schedule, but was markedly limited in dealing with stress. AR at 596. Dr.

Ippolito opined Plaintiff’s psychiatric problems “may significantly interfere with the

claimant’s ability to function on a daily basis.” Id. The ALJ gave this opinion “some

weight” as the evaluation and record support some limitations in the identified areas, but

not the severity opined by Dr. Ippolito. AR at 20. Relevantly, Dr. Ippolito’s consultative

opinion was rendered on February 2, 2016, yet Plaintiff engaged in SGA for all of 2017

and the first quarter of 2018, and managed to move to New York City where she

graduated from college in 2019.

These consultative reports are consistent with the treatment notes in the

administrative record, and the ALJ is permitted to rely on the opinion of a consultative

examiner provided the opinion is supported by and consistent with other evidence in the

record. See Camille v. Colvin, 652 Fed.Appx. 25, 28 (2d Cir. 2016) (consultative

physician’s report may constitute substantial evidence). In sum, neither evidence of

Plaintiff’s daily living activities, treatment notes, nor the consultative opinions support

any need for work breaks in excess of 5%. Moreover, in the absence of any evidence

establishing Plaintiff would be off-task for more than 5% of the workday, the ALJ’s

inclusion of such limitation in formulating the RFC is, at most, a greater limitation than

supported by the record and, as such, harmless error. See Ellen A. v. Saul, 2021 WL

1087949, at *4 (W.D.N.Y. Mar. 22, 2021) (holding the ALJ formulation of an RFC that

was “technically unsupported by substantial evidence in the record” was “harmless

error” because “even with greater limitations assessed by the ALJ” the plaintiff was still

disabled). There thus is no merit to Plaintiff’s first argument.

Plaintiff’s further argument that the ALJ failed to adequately account for the

impact of Plaintiff’s ability to deal with stress in the RFC finding, Plaintiff’s Memorandum

at 18-22, is also without merit. Although the ALJ did not specifically reference “stress”

in formulating the RFC, the ALJ was not required to do so and courts within this district

have repeatedly held that an RFC that limits work to jobs requiring only occasional

changes in a work setting, limiting contact with others, and requiring only routine,

repetitive, and simple tasks, sufficiently accommodates a claimant’s stress limitation.

See Darnell v. Comm’r of Soc. Sec., 2021 WL 1405853, at * 8 (W.D.N.Y. Apr. 14, 2021)

(holding although the ALJ did not specifically reference “stress” in the RFC, the ALJ

sufficiently accounted for the claimant’s stress by restricting the claimant to work

requiring only occasional changes in the work-setting, only occasional contact with

others, and permitting the claimant to be off-task 10% of the time) (citing Figgins v.

Berryhill, 2017 WL 1184341, at * 10-11 (W.D.N.Y. Mar. 29, 2017) (“The ALJ may not

have mentioned stress explicitly, but he implicitly incorporated the effects that stress

would have on plaintiff in his RFC and the questions he asked the VE.”) (underlining in

original)). In the instant case, the ALJ specifically confirmed with the VE that the

Dictionary of Occupational Titles does not contemplate a “low stress” job but, instead,

the VE, when asked to consider a stress limitation, “would look at simple, routine tasks.”

AR at 70. The VE further explained that “low stress” word would preclude production

rate or pace work such as on an assembly line or conveyor belt, but would allow for so-

called “table work” with occasional public contact. AR at 72-74. See McIntyre v. Colvin,

758 F.3d 146, 151 (2d Cir. 2014) (“An ALJ may rely on a vocational expert's testimony

regarding a hypothetical as long as there is substantial record evidence to support the

assumptions upon which the vocational expert based his opinion and [the assumptions]

accurately reflect the limitations and capabilities of the claimant involved.”) (bracketed

material added) (internal quotation omitted).

Further, the ALJ’s reliance, AR at 20, on Dr. Dipeolu’s consultative psychiatric

review of Plaintiff’s medical records which showed Plaintiff with an affective disorder

posing at most mild mental limitations was also permitted. Hairston v. Comm’r of Soc.

Sec., 2020 WL 516897, at *4 (W.D.N.Y. Jan. 29, 2020) (“It is well-established that ‘[a]

well-supported opinion from a consultative examining physician, a non-examining state

agency doctorand/or a medical expert may . . . provide substantial evidence supporting

an ALJ's decision.’” (quoting Cassandra K. v. Comm'r of Soc. Sec., 2019 WL 1115673,

at *6 (N.D.N.Y. Mar. 11, 2019))), aff'd sub nom. Hairston-Scott v. Comm'r of Soc. Sec.,

2021 WL 3777581 (2d Cir. Aug. 26, 2021).

In short, Plaintiff has not sustained her burden of establishing that no reasonable

factfinder could have reached the same conclusion as the ALJ based on the evidence of

record. See Henderson v. Comm’r of Soc. Sec., 2019 WL 3237343, at ** 7-8 (W.D.N.Y.

July 18, 2019) (sustaining the ALJ’s materiality finding where the plaintiff “has not

shown that no reasonable factfinder could have reached the ALJ’s conclusions based

on the evidence of record.” (citing Brault, 683 F.3d at 448)). Accordingly, the ALJ’s

determination that Plaintiff could perform a limited range of sedentary work is supported

by substantial evidence in the record.

CONCLUSION

Based on the foregoing, Plaintiff’s Motion (Dkt. 5) is DENIED; Defendant’s Motion

(Dkt. 6) is GRANTED. The Clerk of Court is directed to close the file.

SO ORDERED.

/s/ Leslie G. Foschio

_____________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

DATED: January 18th, 2023

Buffalo, New York