Sanchez-Melendez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JENIFFER S.-M., §

Plaintiff, §

§

v. § Case # 1:21-cv-734-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

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

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

“Commissioner”) that denied her application for disability insurance benefits (“DIB”) under Title

II of the Act, and her application for supplemental security income (“SSI”) under Title XVI of the

Act. See ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c),

and the parties consented to proceed before the undersigned in accordance with a standing order

(see ECF No. 12).

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

Procedure 12(c). See ECF Nos. 8, 10. Plaintiff also filed a reply. See ECF No. 11. For the reasons

set forth below, Plaintiff’s motion (ECF No. 8) is GRANTED IN PART, the Commissioner’s

motion (ECF No. 10) is DENIED, and this matter is REMANDED to the Commissioner for

further administrative proceedings.

BACKGROUND

Plaintiff protectively filed her DIB and SSI applications on December 7, 2017, alleging

disability beginning March 1, 2017 (the disability onset date) due to “1) fibromylasia [sic]; 2)

mellitus diabetes [sic]; and 3) obesity.” Transcript (“Tr.”) 17, 100, 101, 306. Plaintiff’s

applications were denied initially on May 7, 2018, after which she requested an administrative

hearing. Tr. 102-09, 110-12. She attended a series of four hearing sessions before Administrative

Law Judge P. H. Jung (“the ALJ). Tr. 35-47, 48-60, 61-73. Plaintiff was unrepresented at all

hearing sessions. See, e.g., Tr. 35, 48, 61, 70-71.

On February 24, 2020, the ALJ conducted a video hearing from Kansas City, Missouri.

Plaintiff appeared and testified from Buffalo, New York, with assistance from a Spanish language

interpreter. Although informed of her right to representation, Plaintiff chose to appear and testify

without the assistance of an attorney or other representative. The ALJ continued the hearing to

obtain recent treatment records, and also gave Plaintiff an opportunity to look for a representative.

Tr. 17.

On July 13, 2020, the ALJ held a telephonic hearing, at which all participants attended by

telephone due to the extraordinary circumstance presented by the Coronavirus Disease 2019

(“COVID-19)” Pandemic. Plaintiff attended with assistance from a Spanish language interpreter

and again chose to appear and testify without the assistance of an attorney or other representative.

The ALJ continued the hearing to obtain a response to medical interrogatory. Tr. 17.

On October 5, 2020, the ALJ held a supplemental telephonic hearing, at which all

participants attended by telephone again due to the extraordinary circumstance presented by the

COVID-19 Pandemic. Plaintiff appeared with assistance from a Spanish language and again chose

to appear and testify without representation. Denise Waddell, an impartial vocational expert, also

appeared and testified.

Due to recording problems from the hearing held on October 5, 2020, another supplemental

telephonic hearing was held on November 4, 2020. Plaintiff appeared and testified with assistance

from a Spanish language interpreter and again chose to appear and testify without representation.

Terri Crawford, an impartial vocational expert, also appeared and testified. Tr. 17.

The ALJ issued an unfavorable decision on November 10, 2020, finding that Plaintiff was

not disabled. Tr. 17-29. On May 13, 2021, the Appeals Council denied Plaintiff’s request for

further review. Tr. 1-3. The ALJ’s November 10, 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 November 10, 2020 decision:

1. The claimant meets the insured status requirements of the Social Security Act through

March 31, 2022.

2. The claimant has not engaged in substantial gainful activity since March 1, 2017, the

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

3. The claimant has the following severe impairments: diabetes mellitus; obesity;

fibromyalgia; lumbar disorder; and depression (20 CFR 404.1520(c) and 416.920(c)).

4. 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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and

416.926).

5. The claimant has the residual functional capacity to perform sedentary work as defined in

20 CFR 404.1567(a) and 416.967(a)1 except never climb ladders, ropes, or scaffolds;

occasionally climb ramps, stairs, balance, stoop, kneel, crouch, and crawl; must avoid

frequent exposure to extreme cold, wetness, vibration, hazards, machinery, and such

heights; and limited to simple, repetitive, routine tasks.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on May 7, 1976, and was 40 years old, which is defined as a younger

individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has a limited education (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using

the Medical-Vocational Rules as a framework supports a finding that the claimant is “not

disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20

CFR Part 404, Subpart P, Appendix 2).

10. 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 404.1569, 404.1569(a), 416.969, and 416.969(a)).

1 “Sedentary” work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like

docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain

amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and

standing are required occasionally and other sedentary criteria are met.

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

March 1, 2017, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. at 17-28.

Accordingly, the ALJ determined that, for a period of disability and disability insurance

benefits filed on November 6, 2017, the claimant is not disabled under sections 216(i) and 223(d)

of the Act. Tr. 29. The ALJ also determined that, based on the application for supplemental security

income protectively filed on November 6, 2017, the claimant is not disabled under section

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

ANALYSIS

Plaintiff asserts two points of error, both of which challenge the ALJ’s RFC findings

because they were not based on a matching medical opinion. Plaintiff first argues that the ALJ’s

evaluation of her mental RFC was not supported because the ALJ relied on no opinion evidence.

See ECF No. 8-1 at 9-16. Second, Plaintiff argues that the ALJ erred by making a “highly specific”

physical RFC finding based only on the consultative opinion of Nikita Dave, M.D. (“Dr. Dave”).

See id. at 17-19. Plaintiff takes issue with the ALJ’s finding of additional limitations beyond those

assessed by Dr. Dave, and also argues that the opinion was stale. See id.

The Commissioner argues in response that the ALJ sufficiently supported the RFC finding

with substantial evidence, including the opinion evidence, Plaintiff’s treatment records, and her

statements about her symptoms and daily activities. See ECF No. 10-1 at 11-14. The Commissioner

also argues that the ALJ considered the medical source opinions, and his RFC finding

appropriately reflected the portions that were supported and/or consistent with the record as a

whole. See id. at 12-22.

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, the Court finds that the ALJ properly considered the evidence

regarding Plaintiff’s physical impairments, and his determination that Plaintiff retained the RFC

to perform sedentary work with additional environmental and postural restrictions was supported

by substantial evidence, including the medical treatment notes, Plaintiff’s stated activities of daily

living, and, to some extent, Dr. Dave’s opinion. The ALJ properly relied on multiple evidentiary

sources to arrive at the physical RFC finding and was not required to base the physical RFC finding

directly on any one medical opinion.

However, the Court finds merit in Plaintiff’s argument that the record lacked sufficient

evidence to support the ALJ’s mental RFC finding. As discussed further below, the ALJ rejected

all of the opinion evidence regarding Plaintiff’s mental functioning and appeared to craft a mental

RFC largely based on his own lay interpretation of the medical findings. Because there was no

competent medical opinion supporting the mental RFC finding, there is reasonable basis for doubt

as to whether the ALJ’s determination that Plaintiff was capable of sedentary work with a

limitation to only simple, repetitive tasks was supported by substantial evidence. Tr. 22.

Accordingly, remand is warranted on this point.

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

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

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

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

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

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

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

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

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

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

adopted, 2015 WL 7738047 (N.D.N.Y. 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 the evidence

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

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

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

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

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

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

for remand.).

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

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

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

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

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

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

perform the RFC as found by the ALJ.).

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

comprehensively revised its regulations governing medical opinion evidence creating a new

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

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

2017). Here, Plaintiff filed her claim on December 7, 2017, and therefore, the 2017 regulations are

applicable to her claim.

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

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

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

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

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

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

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

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

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

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

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

are supportability and consistency. Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Finally, Congress granted the Commissioner exceptionally broad rulemaking authority

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

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

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

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

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

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

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

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

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

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

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

Campbell, 461 U.S. at 466).

Plaintiff argues that the ALJ erred because he found Dr. Dave’s opinion “generally

persuasive,” but then assessed additional limitations beyond those assessed in Dr. Dave’s opinion.

See id. ECF 8-1 at 16-19. Plaintiff also complains that Dr. Dave’s opinion was stale because it

predated Plaintiff’s two varicose vein surgeries in May 2018 and August 2018, and an ultrasound

in February 2019 showing hepatomegaly with fatty infiltration. See id. at 18 (citing Tr. 566-75,

630-31, 664-74).

Contrary to Plaintiff’s argument, the ALJ thoroughly considered the entire record and

properly considered Plaintiff’s physical abilities and impairments to make a physical RFC finding

that properly accounted for all of Plaintiff’s credible limitations, as supported by the record. First,

the ALJ noted that, despite Plaintiff’s March 2017 alleged onset date, the earliest treatment of

record was an October 2017 letter from a primary care provider stating that Plaintiff was diagnosed

with diabetes mellitus, fibromyalgia, and obesity. Tr. 23, 402. The letter further stated that

Plaintiff’s conditions were under control at that time; her diabetes and fibromyalgia were

controlled with medication, and she exercised and followed a diabetic diet to control her diabetes

and obesity. Id.

On December 4, 2017, Plaintiff initiated care at UBMD Family Medicine. Tr. 409-12. She

reported she had recently moved to Buffalo after losing everything in a hurricane in Puerto Rico.

Tr. 409. Lisa Porter, P.A. (“Ms. Porter”), affirmed the diagnoses stated in the above-referenced

letter; noted Plaintiff’s history of depression; and observed severe varicose veins in both legs. Tr.

406-12. However, Ms. Porter found Plaintiff’s diabetes to be uncontrolled and instructed Plaintiff

to test her blood sugar two to three times daily and to continue her medications. Tr. 408, 412.

The ALJ also noted that Plaintiff was evaluated by Dr. Dave for a consultative internal

medicine examination in January 2018. Tr. 23, 426-30. Dr. Dave noted that Plaintiff’s diabetes

was not well controlled at the time. Tr. 23, 426. On examination, Dr. Dave noted severe obesity, a

slow gait, reduced and painful lumbar range of motion, ten symmetric tender points, and

diminished sensation in both lower extremities, as well as marked varicose veins in both legs, right

more than left. Tr. 23, 429. Dr. Dave also observed full strength in the upper and lower extremities,

intact hand and finger dexterity, and normal deep tendon reflexes. Tr. 23, 428-29. Plaintiff could

walk on heels and toes without difficulty; get on and off the exam table independently; and rise

from a chair without difficulty. Tr. 23, 427.

As the ALJ noted, over the next year, Plaintiff underwent surgery on both legs to treat her

varicose veins, which reduced her fibromyalgia-related leg pain. Tr. 23, 664, 678. At a preoperative

visit for her first surgery on May 8, 2018, Plaintiff reported her baseline pain level was 5/10, but

her pain that day was 8/10 pain because she had walked to the appointment. Tr. 680. She also

reported a burning sensation in her right leg, but she stated that she had no difficulty walking up

two flights of stairs and could independently perform activities of daily living. Id. As the ALJ

noted, at an annual physical in December 2018, Plaintiff was observed with full muscle strength

bilaterally in the upper and lower extremities, and without gross motor or sensory deficits. Tr. 23,

614.

The ALJ also noted that Plaintiff complained of mild lower back pain in October 2018, for

which she was prescribed naproxen. Tr. 23. 635, 633. On April 19, 2019, Plaintiff was treated at

the Emergency Department (“ED”) for lower back pain. Tr. 23, 619. However, as the ALJ noted,

a physical examination at that time showed normal musculoskeletal range of motion and a normal

neurological examination. Tr. 23, 619, 621. Physical examinations from October through

December 2019, and in January and February 2020, similarly showed full strength and range of

motion of the spine, as well as stable legs (with the exception of noted instability in the knees in

December 2019), and no edema in either leg. Tr. 23, 449, 453, 458, 463, 468. On January 5, 2020,

Plaintiff presented to the ED with complaints of bilateral knee pain and flank pain; however, these

symptoms were not corroborated by objective evidence; on examination, as Plaintiff had a steady

gait; intact range of motion in all extremities; and a CT scan of the abdomen, pelvis, and lumbar

spine showed a non-obstructed ventral hernia but no other acute findings. Tr. 23-24, 424-25, 729,

731.

The ALJ also noted that Plaintiff was classified as morbidly obese2 during the relevant

period, with a body mass index (“BMI”) ranging from 41.4 in December 2017 to 43.6 in February

2020. Tr. 24, 410, 448. Plaintiff was engaged in a program of diet modification and exercise, with

2 As the ALJ noted, obesity is generally defined as a BMI of 30.0 or greater. Tr. 24 (citing SSR 19-2P).

the goal of losing enough weight (13 pounds) to undergo gastric bypass surgery. Tr. 24, 590. The

ALJ noted that a bariatric visit from July 2019 stated that Plaintiff was walking 30 minutes daily

(Tr. 588), and on examination, Plaintiff displayed normal gait; no musculoskeletal or lower

extremity tenderness; and no evidence of any specific or quantifiable limitations on mobility,

pulmonary functioning, or cardiac functioning due to her body habitus (Tr. 590). Tr. 24. Thus, the

ALJ reasonably noted that, despite Plaintiff’s obesity, there was “no evidence of any specific or

quantifiable impact on pulmonary, cardiac functioning, or significant limitations of movement

attributable to the claimant's body habitus.” Tr. 24. The ALJ also explained that, in assessing

Plaintiff’s RFC, he considered the effects of obesity as required under SSR 19-2p. Tr. 24; see SSR

19-2p (obesity); SSR 14-2p (diabetes).

In addition to the above evidence, the ALJ noted Plaintiff’s statements regarding her

abilities to perform activities of daily living, Tr. 24; see 20 C.F.R. §§ 404.1529(c)(3)(i),

416.929(c)(3)(i). The ALJ noted that Plaintiff stated she could perform tasks that were inconsistent

with the alleged severity of her impairments. Tr. 24, Plaintiff reported that she performed personal

care, did household chores, cooked daily, and went shopping (although sometimes with help from

her children). Tr. 24, 422. She was also able to take public transportation and spend time on

weekends with her family. Id. As the ALJ noted, the physical capabilities required to perform these

activities supported the RFC finding. Tr. 24.

After completing Plaintiff’s consultative examination, Dr. Dave opined that Plaintiff’s

multiple myalgias and other symptoms would cause mild to moderate limitations in “activities

requiring severe physical exertion, such as lifting, carrying, pushing or pulling heavy objects.” Tr.

430. The ALJ found Dr. Dave’s medical opinion3 “generally persuasive” because the opinion was

supported by Dr. Dave’s examination. Tr. 26; see 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1)

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

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

opinions . . . will be.”). Indeed, Dr. Dave’s finding of mild to moderate limitations was supported

by the examination findings that, inter alia, Plaintiff could get on and off the examination table

independently, had no difficulty rising from her chair, had full strength in her upper and lower

extremities, and had limited range of lumbar motion but full range of motion in her cervical spine,

elbows, wrists, hands, and right shoulder. Tr. 23, 427-429.

However, the ALJ found that evidence received at the hearing level, including hearing

testimony, supported the need for postural and environmental limitations. Tr. 26, 55, 317; see 20

C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2) (“The more consistent a medical opinion . . . is with

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

the medical opinion . . . will be.”). These additional postural and environmental limitations were

also consistent with Plaintiff’s morbid obesity, which could cause limitations in climbing,

balancing, stooping, kneeling, crouching, and crawling; contribute to decreased range of motion

of the spine and extremities, and affect the ability to handle hazards, extreme humidity, and other

environmental factors. Tr. 24; see SSR 19-2p.

Plaintiff also argues that the physical RFC finding lacked substantial evidentiary support

because the ALJ found other opinions and findings in the record not persuasive. See ECF No. 8-1

at 10-14 (citing Tr. 26-27). Contrary to Plaintiff’s argument, however, “the ALJ’s RFC conclusion

3 The ALJ’s decision inadvertently identified Dr. Dave’s opinion as Dr. Ransom’s opinion; however, since Dr. Dave

conducted a physical examination and Dr. Ransom conducted a psychological evaluation, it is clear from the context

that the ALJ was discussing Dr. Dave’s physical opinion, not Dr. Ransom’s psychological opinion. See Tr. 26.

need not perfectly correspond with any single medical opinion in the records, because the ALJ is

entitled to weigh all of the evidence available to make an RFC finding that [is] consistent with the

record as a whole.” Schillo v. Kijakazi, 31 F.4th 64, 78 (2d Cir. 2022) (citing Matta, 508 F. App’x

at 56) (internal quotation marks omitted). The regulations that became effective March 27, 2017

explicitly state that the ALJ will not defer or give controlling weight to any medical opinions. See

20 C.F.R. §§ 404.1520c, 416.920c. Furthermore, a formal medical opinion is not necessary where,

as here, the record provides sufficient evidence from which the ALJ can forge a well-supported

RFC. See 20 C.F.R. §§ 404.1513(a), 416.913(a) (describing five categories of evidence considered

by the ALJ in assessing a disability claim).

Finally, Plaintiff contends that the ALJ should not have relied on Dr. Dave’s opinion

because it predated Plaintiff’s two varicose vein surgeries in May 2018 and August 2018, , and a

February 2019 ultrasound showing hepatomegaly with fatty infiltration, and was therefore stale.

See ECF No. 8-1 at 18 (citing Tr. 566-75, 630-31, 664-74). Plaintiff’s argument fails. Later medical

evidence does not render an opinion stale, as long as the “additional evidence does not raise doubts

as to the reliability of [the] opinion.” Camille v. Colvin, 652 F. App'x 25, 28 n.4 (2d Cir. 2016)

(summary order); see Steve P. v. Comm’r of Soc. Sec., 2021 WL 307566, at *5-7 (W.D.N.Y. 2021)

(rejecting claimant’s staleness argument where there was no change in symptoms during the period

between the medical source's opinion and a surgery, and his condition improved slightly following

surgery).

Here, Plaintiff, who bears the burden of showing that her RFC was more restrictive than

the ALJ found, has not shown that the vein surgeries and/or hepatomegaly caused functional

deterioration after Dr. Dave’s examination, such that she could no longer perform the RFC for

sedentary work with certain postural and environmental restrictions, as found by the ALJ. See

Poupore, 566 F.3d at 306. To the contrary, the record reflects that the vein surgeries reduced

Plaintiff’s leg pain. Tr. 23, 611. Moreover, an abdominal CT scan performed on January 5, 2020,

almost a year after the hepatomegaly was detected, showed an unremarkable liver with no mass,

suggesting that the hepatomegaly had resolved. Tr. 724.

Based on the foregoing, substantial evidence, including the medical treatment notes,

Plaintiff’s stated activities of daily living, and, to some extent, Dr. Dave’s opinion, supported the

ALJ’s physical RFC finding. The ALJ properly drew on multiple evidentiary sources to arrive at

the physical RFC finding and reasonably declined to mirror any one medical opinion. As

previously noted, Plaintiff bears the ultimate burden of proving that she was more limited than the

ALJ found. See Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018) (“Smith had a duty to

prove a more restrictive RFC, and failed to do so.”); Poupore, 566 F.3d at 306 (it remains at all

times the claimant’s burden to demonstrate functional limitations, and never the ALJ’s burden to

disprove them). Accordingly, the Court finds no error.

Plaintiff also argues that the ALJ’s mental RFC finding was not supported by substantial

evidence because it did not rely on a medical opinion. See ECF No. 8-1 at 9-16. Plaintiff further

argues that the ALJ improperly substituted his own judgment for competent medical opinions and,

therefore, created a gap in the record. See id. As previously stated, Plaintiff’s argument has merit.

Unlike the physical RFC finding where the ALJ relied on multiple evidentiary sources, including

a consultative opinion which the ALJ found generally persuasive, the mental RFC finding is not

so supported. The ALJ rejected all of the opinion evidence regarding Plaintiff’s mental functioning

and, therefore, lacked any guidance from a medical professional to ensure that the RFC finding

adequately accounted for Plaintiff’s mental limitations. Hopper v. Berryhill, 2017 WL 5712307 at

*3 (W.D.N.Y. 2017) (An ALJ, who is not a medical professional, cannot come to a “highly

specific” determination of Plaintiff’s abilities without guidance from a medical opinion) (internal

citations omitted).

On March 30, 2018, Plaintiff underwent a psychiatric examination by Christine Ransom,

Ph.D. (“Dr. Ransom”). Tr. 420-23. The ALJ found Dr. Ransom’s opinion that Plaintiff would only

have mild episodic psychiatric limitations that would not significantly interfere with Plaintiff’s

ability to function on a daily basis, “not persuasive.” Although the ALJ noted that Dr. Ransom has

a degree of specialization in the area related to her opinion, as well as an examining relationship

with Plaintiff, he found that the opinion was not consistent with the subsequent record of outpatient

treatment and Plaintiff’s testimony, which the ALJ found supported greater limitations. Tr. 26.

The ALJ also considered a September 27, 2019 opinion from mental health counselor

Maria Guzman, MSW (“Ms. Guzman), at BestSelf Behavioral Health, indicating that Plaintiff had

been diagnosed with major depressive disorder and PTSD and had been receiving services through

BestSelf since January 15, 2018. Tr. 26, 435-36. Ms. Guzman opined that Plaintiff had “mental

health conditions that interfered with her ability to do things that an individual without these

conditions is able to do effectively” and physical conditions “that interfere with her ability to

complete certain tasks due to constantly feeling tired and in pain.” Tr. 435. Plaintiff was to be

excused from school until her symptoms decreased, and she would be seen weekly Id.

The ALJ found Ms. Guzman’s opinion “not persuasive,” stating that the opinion was too

vague to be of any value, but he then concluded that the ultimate RFC adequately accounted for

Plaintiff’s mental limitations. Tr. 26. However, such a conclusion is beyond the ALJ’s capabilities.

See Patricia L. v. Saul, No. 20-CV-6173L, 2021 WL 1845914, at *4 (W.D.N.Y. Apr. 21, 2021)

(Even assuming the ALJ correctly evaluated the medical record in rejecting the bulk of limitations

asserted, he opened a gap in the record by doing so.); Falcon v. Apfel, 88 F.Supp.2d 87, 90

(W.D.N.Y. 2000) (ALJ should have sought a conclusive determination from a medical consultant);

Smith v. Commissioner, 337 F.Supp. 3d 216, 226 (W.D.N.Y. 2018) (Where the ALJ rejects all

medical opinion evidence and the record “does not contain a useful assessment of [p]laintiff’s

limitations” remand for further development is appropriate.).

Here, the ALJ found that Plaintiff had the severe mental impairment of depression,

concluding that she had moderate limitations in understanding, remembering, or applying

information; mild limitations in interacting with others; moderate limitations in concentrating,

persisting, or maintaining pace; and mild limitations in adapting or managing herself. Tr. 20, 21.

However, other than the opinions of Dr. Ransom and Ms. Guzman, both of which the ALJ found

not persuasive, the record contained no opinion evidence regarding Plaintiff's functional

limitations caused by her mental impairments. Nor did the ALJ provide any explanation to tether

these limitations to the opinion evidence or to any statements from Plaintiff. Jordan v. Berryhill,

1:17-CV-00509 (JJM), 2018 WL 5993366, at *3 (W.D.N.Y. Nov. 15, 2018) (Without “some

explanation” from the ALJ “as to the tether between [the] RFC and the non-stale medical opinions

or statements from plaintiff, the RFC appears to be based upon [the ALJ’s] lay analysis of

plaintiff’s limitations, which is not permitted and requires remand.”). Such is the case here.

In the context of mental health, the ALJ cannot render a “common sense judgment” as to a

plaintiff’s functional capacity without a medical opinion, given the highly complex and individual

nature of such impairments. James R. v. Comm’r of Soc. Sec., No. 18-CV-06497-FPG, 2021 WL

3361161, at *3 (W.D.N.Y. Aug. 3, 2021) (citing Lilley v. Berryhill, 307 F.Supp.3d 157, 161

(W.D.N.Y. 2018); see also Stein v. Colvin, No. 18-CV-6753-FPG, 2016 WL 7334760, at *4

(W.D.N.Y. Dec. 19, 2016) (remanding where the ALJ provided an RFC after discounting the only

medical opinion of record and plaintiff had longstanding mental impairments including anxiety

and depression such that a common sense judgment was inappropriate). Furthermore, an ALJ may

not come to a “common sense” RFC when they acknowledge that the Plaintiff’s mental symptoms

were sometimes “moderate.” Jason C. v. Comm’r of Soc. Sec., No. 1:20-CV-00702 EAW, 2021

WL 4348742, at *4 (W.D.N.Y. Sept. 24, 2021).

On this record, the ALJ was not permitted to rely on his own lay assessment of the medical

evidence to assess Plaintiff's mental RFC. Instead, there was a gap in the record that the ALJ was

required to fill. See Lilley, 307 F. Supp. 3d at 160 (“Stated simply, the record lacks a useful medical

opinion by any treating or examining source that addresses whether and to what extent plaintiff's

mental impairments impact her ability to perform work-related functions. As such, the ALJ was

required to obtain a consultative examination and/or seek additional opinion evidence from

plaintiff's treating physician.”).

For these reasons, the Court finds that the ALJ's assessment of Plaintiff's mental RFC was

not supported by substantial evidence, and further development of the record was necessary.

Accordingly, remand of this matter for further administrative proceedings is required. See Martin

v. Berryhill, No. 16-CV-6184-FPG, 2017 WL 1313837, at *1 (W.D.N.Y. Apr. 10, 2017)2017 WL

1313837, at *4 (“There were many avenues available to the ALJ to fill the gap in the record . . . ”)

(citing Covey v. Colvin, 204 F. Supp. 3d 497, 507 (W.D.N.Y. 2016) ). The Commissioner on

remand, “should employ whichever of these methods are appropriate to fully develop the record

as to [Plaintiff’s] RFC.” Martin, 2017 WL 1313837, at *4.

CONCLUSION

Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 8) is GRANTED IN PART,

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

matter is REMANDED to the Commissioner for further administrative proceedings consistent

with this opinion pursuant to sentence four of 42 U.S.C. § 405(g). See Curry v. Apfel, 209 F.3d

117, 124 (2d Cir. 2000). The Clerk of Court is directed to enter judgment and close this case.

IT ISSO ORDERED.

DON D. BUS dl

UNITED STATES MAGISTRATE JUDGE

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