# Jackson v. Commissioner of Social Security

> District Court, W.D. New York · March 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10366006

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 22, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10366006

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KENTREL J., §
§
Plaintiff, §
§
v. § Case # 1:21-cv-197-DB
§
COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM
§ DECISION AND ORDER
Defendant. §

INTRODUCTION

Plaintiff Kentrel J. (“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. 12).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). See ECF Nos. 7, 9. Plaintiff also filed a reply brief. See ECF No. 10. For the
reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 7) is DENIED,
and the Commissioner’s motion for judgment on the pleadings (ECF No. 9) is GRANTED.
BACKGROUND
Plaintiff protectively filed an application for SSI on June 25, 2018, alleging disability
beginning June 28, 1990 (the disability onset date), due to mental health, depression, bipolar
disorder, and attention deficit hyperactive disorder. Transcript (“Tr.”) 16, 168-69, 140-46, 162.
Plaintiff’s claim was denied initially on October 9, 2018, after which Plaintiff requested an
administrative hearing. Tr. 16, 75-79, 81. On March 10, 2020, Administrative Law Judge Michael
J. Stacchini (“the ALJ”) conducted a telephonic hearing.1 Tr. 16. Plaintiff appeared and testified
at the hearing and was represented by Katheryn Eastman, an attorney. Id. Patricia Scutt, an
impartial vocational expert, also appeared and testified at the hearing. Id.
The ALJ issued an unfavorable decision on August 3, 2020, finding that Plaintiff was not

disabled. Tr. 16-27. On December 3, 2020, the Appeals Council denied Plaintiff’s request for
further review. Tr. 1-6. The ALJ’s August 3, 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

1 Due to the extraordinary circumstance presented by the Coronavirus Disease 2019 (“COVID-19”) pandemic, all
participants attended the hearing by telephone. Tr. 15, 312.
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 August 3, 2020 decision:
1. The claimant has not engaged in substantial gainful activity since June 25, 2018, the
application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: anxiety, depression, personality
disorder, attention-deficit/hyperactivity disorder (“ADHD”), posttraumatic stress disorder
(“PTSD”), and asthma (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 work at all
exertional levels but with the following non-exertional limitations: The claimant must
avoid concentrated exposure to atmospheric conditions. The claimant can understand,
remember and carry out simple, routine tasks with regularly scheduled breaks at 2-hour
intervals. The claimant can make decisions and respond to changes in the work setting
relating to simple, routine tasks. The claimant can occasionally interact with the general
public, coworkers, and supervisors.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on June 28, 1990 and was 28 years old, which is defined as a
younger individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has a limited education (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 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since
June 25, 2018, the date the application was filed (20 CFR 416.920(g)).
Tr. 16-26.
Accordingly, the ALJ determined that, based on the application for supplemental security
income protectively filed on June 25, 2018, the claimant is not disabled under section
1614(a)(3)(A) of the Social Security Act. Tr. 27.
ANALYSIS

Plaintiff asserts a single point of error. Plaintiff argues that the ALJ failed to properly
evaluate the opinion of consultative psychological examiner Adam Brownfeld, Ph.D. (“Dr.
Brownfeld”). See ECF No. 7-1 at 6-12. According to Plaintiff, the ALJ failed to incorporate Dr.
Brownfeld’s assessment of marked limitations in the RFC, “in an obvious picking and choosing
of the opinion evidence,” and therefore, substituted his own lay judgment for Dr. Brownfeld’s
opinion. See id.
The Commissioner argues in response that the ALJ properly assessed Dr. Brownfeld’s
opinion in accordance with the regulations and credited only those limitations that were consistent
with and supported by the record. See ECF No. 9-1 at 10-13. Furthermore, argues the
Commissioner, the ALJ did not rely exclusively or excessively on any one factor when he

evaluated Plaintiff’s RFC, and substantial evidence supports the ALJ’s RFC determination. See id.
at 13-17.
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 properly accounted for
Dr. Brownfeld’s opinion that Plaintiff had no limitations understanding, remembering, and
applying simple instructions, making judgment on simple work-related decisions, and responding
appropriately to usual work situations and changes in a routine work setting by limiting Plaintiff

to understanding, remembering, and carrying out simple, routine tasks and making decisions and
responding to changes in the work setting relating to simple, routine tasks. The ALJ also properly
accounted for moderate limitations interacting with others by limiting Plaintiff to jobs requiring
no more than occasional interaction with the general public, coworkers, and supervisors. The ALJ
explained his reasons for finding Dr. Brownfeld’s suggestion of marked limitations interacting
with others “excessive” and inconsistent with the record. Furthermore, the ALJ also relied on other
substantial evidence to reach his RFC finding, including mental health examinations showing
generally unremarkable findings, treatment records indicating that Plaintiff had only intermittently
attended psychotherapy and had no psychiatric hospitalizations or emergency room visits for
mental health symptoms, and Plaintiff’s daily activities. Accordingly, the Court finds no error.

Plaintiff alleged disability due to a combination of psychological symptoms and
limitations, including difficulty being around crowds and interacting with others, panic attacks,
mood swings, irritability, restlessness, poor sleep, fatigue, lack of motivation or interest, and
difficulties with memory and sustaining concentration. Tr. 49-50, 213, 266-67. The record
documents diagnoses of major depressive disorder, generalized anxiety disorder, personality
disorders, and PTSD. Tr, 256-64, 269, 443, 479-525.
Plaintiff reported a history of incarceration from 2008 to 2018, including being
reincarcerated for parole violations. Tr. 489. On May 4, 2018, Plaintiff underwent a health
screening with the Department of Corrections. Tr. 228-33. He reported past mental health
treatment, but he had no current mental health complaints, and his mental health findings were
unremarkable. Tr. 229. Plaintiff also declined medications for depression and anxiety, stating “I’m
good.” Tr, 234.
In August 2018, Plaintiff attended pre-admission screening with Genesee Mental Health

Center. Tr. 257. He was declined admission due to multiple no show/late cancellation for
scheduled appointments. Id.
On October 31, 2019, Dr. Brownfeld performed a consulting psychiatric evaluation at the
request of the state agency. Tr. 266. On mental status examination, Plaintiff’s speech was fluent
and monotonous; his mood was euthymic; his attention and concentration and recent and remote
memory were intact; and insight and judgment were fair. Tr. 267. Dr. Brownfeld diagnosed PTSD,
major depressive disorder, and cannabis use disorder in sustained remission. Tr. 269. He opined
that Plaintiff had no limitations in understanding, remembering, and applying simple and complex
directions and instructions, using reason and judgment to make work-related decisions, sustaining
concentration, and performing a task at a consistent pace. Tr. 268. Plaintiff was also able to sustain

an ordinary routine and regular attendance at work, maintain personal hygiene and appropriate
attire, and be aware of normal hazards and take appropriate precautions without limitations. Id. Dr.
Brownfield further opined that Plaintiff was moderately to markedly limited in interacting
adequately with supervisors, co-workers, and the public and regulating emotions, controlling
behavior, and maintaining well-being” and stated the results of the evaluation appeared “consistent
with psychiatric problems, and this may significantly interfere with the claimant’s ability to
function on a daily basis.” Tr. 269. He also opined that Plaintiff’s “symptoms of PTSD affect
interpersonal skills.” Tr. 271.
In December 2019, Plaintiff began mental health treatment at Unity Mental Health at
Evelyn Brandon (“Brandon”). Tr. 519-20. Thereafter, it appears that Plaintiff attended regular
therapy sessions at Brandon through June 2020, some of which were teletherapy visits. Tr. 479-
520. Therapy notes reflect no record of medications for any mental health conditions (see Tr. 489,

495, 499, 504-07) until May 28, 2020, when Plaintiff was prescribed mirtazapine for insomnia (Tr.
490).
On March 2, 2020, Plaintiff reported his mood was better since beginning a full-time job,
and he stated he was beginning a second job with potential for full- time overnight hours. Tr. 500.
He expressed excitement and stated that working makes him feel accomplished, proud, and
self-sufficient. Id. In a teletherapy session on March 17, 2020, Plaintiff reported feeling depressed
and lonely (Tr. 496), and on May 5, 2020, he reported his anxiety has been “terrible,” and he
endorsed depressed mood, difficulty managing anger, difficulty concentrating, and interrupted
sleep (Tr. 492). However, mental status examinations on both visits were generally unremarkable;
he was fully oriented with intact thought processes; he had fair insight and good judgment; and no

thoughts of harm to self or others. Tr. 492, 496.
On May 18, 2020, Plaintiff presented to the Emergency Department (“ED”) at Rochester
Regional Health complaining of “fullness in the left pectoralis muscle region” with “some pain.”
Tr. 449. He denied any trauma or injury to the region. Id. During triage, Plaintiff denied any
depression or thoughts of suicide over the past two weeks. Tr. 452. He also denied any suicide
attempts over his lifetime. Id. X-rays were normal, and Plaintiff was discharged with anti-
inflammatory medications. Tr. 449.
During a visit at Brandon on May 28, 2020, Plaintiff reported increased anxiety and
depression after losing his job in April 2020. Tr. 489. Plaintiff stated it was “important to him to
have a job and be able to pay for what he needs. Id. He also reported a history of suicide attempts
but no current suicidal ideation, plans or intent. Tr. 488. His provider noted that “[Plaintiff’s]
responses did not appear to be indicative of psychosis.” Tr. 489. Plaintiff was prescribed
mirtazapine for insomnia. Tr. 490.

As noted above, Plaintiff argues that the ALJ erred in his assessment of the medical opinion
evidence, resulting in an RFC finding that 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 June 25, 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 argument (see ECF No. 7-1 at 6-12), the ALJ’s decision
demonstrates that he properly evaluated Dr. Brownfeld’s opinion (Tr. 266-72) and provided an
adequate explanation for finding it “somewhat persuasive overall.” Tr. 24-25. First, the ALJ cited
20 C.F.R. § 416.920c(c) and noted that he considered the persuasiveness of medical opinions based
on the factors of supportability, consistency, the medical source’s relationship with the claimant,
specialization, and other factors. Tr. 24. See 20 C.F.R. § 416.920c(c). Next, when discussing Dr.
Brownfeld’s opinion, the ALJ recognized that Dr. Brownfeld conducted a psychological

consultative examination of Plaintiff in October 2019, which demonstrates that the ALJ considered
the factors of relationship with the claimant and specialization. See 20 C.F.R. 416.920c(c)(3)-(4).
The ALJ also noted that Dr. Brownfeld’s assessment was based on a thorough examination
and cogent observations that were generally consistent with the mental status and psychiatric
findings in the record, as well as Plaintiff’s reported activities of daily living. Tr. 24-25, 268. See
Lamorey v. Barnhart, 158 F. App’x 361, 363 (2d Cir. 2006) (“[S]ubstantial evidence of routine
activities” properly found to be inconsistent with claims of total disability). For instance, the ALJ
noted that Dr. Brownfeld’s findings of intact cognitive skills, memory, and concentration
supported his opinion regarding Plaintiff’s ability to carry out and perform simple directions and
instructions, make decisions, and maintain concentration and pace. Tr. 24-25, 267-68. See 20

C.F.R. § 416.920c(b)(2). (supportability). The ALJ also noted that Plaintiff’s social anxiety would
support moderate limitations with social interactions. Tr. 25.
However, the ALJ found Dr. Brownfeld’s assessment of marked limitations “excessive and
inconsistent with the overall record,” as well as inconsistent with Dr. Brownfeld’s own
examination findings that Plaintiff was pleasant, cooperative, alert, fully oriented, demonstrated
appropriate eye contact, and exhibited normal speech, posture, and motor behavior. Tr. 25, 267-
68. As the ALJ explained, Plaintiff’s ability to go out independently, use public transportation,
shop in stores, play basketball in the park, spend time with friends and family, maintain personal
relationships, and live with others supported moderate rather than marked limitations. Tr. 24-25,
41, 45-46, 267-68, 271, 481, 487, 492, 496, 500, 504, 507, 515, 517. See 20 C.F.R. §
416.920c(b)(2) (consistency).
As previously noted, the new regulations only require the ALJ to explain his consideration
of an opinion’s supportability and consistency, which the ALJ did in this case. See 20 C.F.R. §

416.920c(b)(2)-(3). He thoroughly considered the record as a whole and reasonably determined
that the record did not document or support any marked limitations interacting with others as Dr.
Brownfeld’s assessment suggested. Thus, the ALJ satisfied his duty to consider Dr. Brownfeld’s
opinion in accordance with the regulations and explained why he found it “somewhat persuasive
overall.” Tr. 24-25.
Furthermore, 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).
Contrary to Plaintiff’s argument that the ALJ improperly substituted his own lay opinion
in determining Plaintiff’s RFC (see ECF No. 7-1 at 11-12), the ALJ’s decision reflects that he
properly considered a range of evidence, including Dr. Brownfeld’s opinion, as discussed above.
Furthermore, although the ALJ’s RFC assessment did not adopt Dr. Brownfeld’s opinion in its

entirety, the ALJ nevertheless accounted for Dr. Brownfeld’s supported limitations. Tr. 21, 24-25.
Plaintiff’s claim that the ALJ “picked and chose among the limitations, rejecting all of the
restrictive limitations and accepting the less restrictive limitations” is likewise without merit. See
ECF No. 7-1 at 7. As previously noted, an ALJ’s RFC determination need not parallel any
particular medical opinion. See Matta, 508 F. App’x at 56. It is precisely the function of the ALJ
to resolve conflicting evidence, and, as discussed above, the ALJ may find an opinion less
persuasive where it is not consistent with or supported by other evidence of record, and likewise
may rely on certain portions of opinions while rejecting others. Veino, 312 F. 3d at 588 (citing
Richardson, 402 U.S. at 399): 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). Here the ALJ
properly considered the conflicting evidence and assessed the record as a whole to reach his RFC

finding.
As the ALJ noted, Plaintiff’s mental status examinations were generally unremarkable. Tr.
23. He was noted to have an appropriate appearance with good hygiene and grooming. Tr. 23, 257,
263, 267, 500. Despite some irritability, he was alert and fully oriented with a euthymic mood. Tr.
23, 267-68, 492, 496. There were no signs of psychosis. Tr. 489. Plaintiff was regarded as polite,
pleasant, and cooperative; he maintained appropriate posture and eye contact; and he exhibited
normal speech, behavior, and ability to relate during exams. Tr. 23, 256, 267, 496, 500. He was
able to follow instructions and complete assigned tasks; he demonstrated intellectual functioning
in the average range; and exhibited no gross defects with cognition, attention, or concentration.
See id. Plaintiff also demonstrated an intact memory, average fund of knowledge, fair insight and
judgment, logical and coherent thought processes, and normal thought content without delusions
or hallucinations. Id.
Additionally, the ALJ noted there was no evidence of any psychiatric hospitalizations or

emergency room visits, and, overall, the record showed that Plaintiff had received routine and
conservative mental health treatment, and his mental health symptoms were generally well
controlled with medication. Tr. 23. See 20 C.F.R. §§ 404.1569(c)(3)(iv)- (v), 416.929(c)(3)(v) (the
ALJ considers the treatment, other than medication, a claimant receives for relief of her
symptoms). See Penfield v. Colvin, 563 F. App’x 839, 840 (2d Cir. 2013) (evidence of a
conservative treatment regimen supported the ALJ’s determination that plaintiff’s symptoms were
not as severe as she alleged); see also Snyder v. Comm’r of Soc. Sec., 840 F. App’x 641, 643 (2d
Cir. 2021) (conservative treatment may weigh against a disability finding) (internal citations
omitted).
Furthermore, although not mentioned by the ALJ, the Court notes that Plaintiff reported in

March 2020 that he was working two jobs. Tr. 500. Plaintiff also expressed excitement about
working and believed it was important for him to have a job and pay for his own needs. Tr. 489,
500. While Plaintiff’s work activity did not rise to the level of substantial gainful activity, it
nonetheless indicates that Plaintiff's ability to perform work-related activities has, at least at times,
been greater than Plaintiff alleged. See 20 C.F.R. §§ 404.1571, 416.971 (explaining that even if
the work a claimant had done was not substantial gainful activity, it may show that the claimant
can do more work than he did). Based on the foregoing, the ALJ reasonably found that Plaintiff’s
mental symptoms are not at a level that would keep him from performing all work-related
activities.
In sum, Plaintiff’s argument here amounts to nothing more than an invitation for this Court
to reweigh the evidence in a manner more favorable to him—arguments that are insufficient under
the substantial evidence standard of review. See Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59
(2d Cir. 2013) (“whether there is substantial evidence supporting the appellant’s view is not the

question here; rather, we must decide whether substantial evidence supports the ALJ’s decision.”).
Plaintiff’s argument, therefore, fails.
Based on the foregoing, substantial evidence in the record supports the ALJ’s RFC finding.
As noted above, Plaintiff’s burden was to show that no reasonable mind could have agreed with
the ALJ’s conclusions, which he 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).
Under the substantial evidence standard of review, it is not enough for Plaintiff to merely

disagree with the ALJ’s weighing of the evidence, or to argue that some evidence in the record
could support his position; what he must show is that no reasonable factfinder could have reached
the ALJ’s conclusions on this record, which he has failed to do. See Brault, 683 F.3d at 448; Jones
v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (reviewing courts must afford the Commissioner’s
determination considerable deference and cannot substitute its own judgment even if it might have
reached a different conclusion). 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 notes, and Plaintiffs reported
daily activities, and the ALJ’s findings are supported by substantial evidence. Accordingly, the
Court finds no error.
CONCLUSION
Plaintiff's Motion for Judgment on the Pleadings (ECF No. 7) is DENIED, and the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 9) is GRANTED. Plaintiffs
Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court will enter
judgment and close this case.
IT ISSO ORDERED.
Jw J (uvvre-
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

18

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10366006. Public record. Not legal advice.