Fisher v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

NICHOLAS F., §

§

Plaintiff, §

§

v. § Case # 1:21-cv-261-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Nicholas F. (“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 Disability Insurance Benefits (“DIB”) under Title

II of the Act, and 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. 8, 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. 8) is DENIED,

and the Commissioner’s motion for judgment on the pleadings (ECF No. 9) is GRANTED.

BACKGROUND

Plaintiff protectively filed applications for DIB and SSI on November 3, 2018, alleging

disability beginning June 29, 2018 (the disability onset date), due to various mental impairments.

Transcript (“Tr.”) 78-79, 189-96, 231. The claims were denied initially on January 9, 2019, and

upon reconsideration on May 9, 2019 (Tr. 100-19, 120-143), after which Plaintiff requested an

administrative hearing (Tr. 144-45). On April 28, 2020, Administrative Law Judge Moises

Penalver (“the ALJ”) conducted a telephonic hearing.1 Tr. 15, 31-63. Plaintiff appeared and

testified at the hearing and was represented by Kathryn Eastman, an attorney. Tr. 15. Frank A.

Lindner, an impartial vocational expert, also appeared and testified. Id.

The ALJ issued an unfavorable decision on September 2, 2020, finding that Plaintiff was

not disabled because substance use was a contributing factor material to the determination of

disability. Tr. 15-26. On December 23, 2020, the Appeals Council denied Plaintiff’s request for

further review. Tr. 1-6. The ALJ’s September 2, 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).

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.

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 September 2, 2020 decision:

1. The claimant has not engaged in substantial gainful activity since June 29, 2018, the alleged

onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).

2. The claimant has the following severe impairments: learning disorder; status-post

traumatic brain injury (“TBI”) with neurocognitive symptoms; post-traumatic stress

disorder (“PTSD”); major depressive disorder (“MDD”); generalized anxiety disorder

(“GAD”); and substance use disorder (20 CFR 404.1520(c) and 416.920(c)).

3. Including the claimant’s substance use, the severity of the claimant’s impairments met the

criteria of section 12.03 of the “Listing of Impairments” at 20 CFR Part 404, Subpart P,

Appendix 1 (20 CFR 404.1520(d), 404.1525, 416.920(d), 416.925).

4. If the claimant stopped the substance use, the remaining limitations would cause more than

a minimal impact on the claimant’s ability to perform basic work activities; therefore, the

claimant would have a severe impairment or combination of impairments (20 CFR

404.1522 and 404.922, and 416.920(c)).

5. If the claimant stopped the substance use, the claimant would not have an impairment or

combination of impairments that meets or medically equals the severity of one of the

impairments listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(f) and

416.994(b)(5)(i)).

6. If the claimant stopped the substance use, he would have the residual functional capacity

to perform a full range of work at all exertional levels, but with the following nonexertional

limitations: he would be limited to simple, routine, and repetitive tasks. He would be

limited to low stress jobs, defined as positions with no more than occasional decision-

making and occasional changes in the work setting. He could not tolerate fast-paced work

environments, defined as positions containing constant activity with work tasks performed

sequentially in rapid succession. He would require breaks every hour lasting two to three

minutes, in addition to regularly scheduled breaks.

7. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).

8. The claimant has at least a high school education (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not an issue in this case because the claimant does not have

past relevant work (20 CFR 404.1568 and 416.968).

10. If the claimant stopped the substance use, considering his age, education, work experience,

and residual functional capacity, there have been jobs that exist in significant numbers in

the national economy that the claimant can perform (20 CFR 404.1560(c), 404.1566,

416.960(c) and 416.966).

11. The substance use disorder is a contributing factor material to the determination of

disability because the claimant would not be disabled if he stopped the substance use (20

CFR 404.1520(g), 404.1535, 416.920(g) and 416.935). Because the substance use disorder

is a contributing factor material to the determination of disability, the claimant has not been

disabled within the meaning of the Social Security Act at any time from the alleged onset

date through the date of this decision.

Tr. 15-26.

Accordingly, the ALJ determined that, based on the application for a period of disability

and disability insurance benefits protectively filed on November 3, 2018, the claimant is not

disabled under sections 216(i) and 223(d) of the Social Security Act. Tr. 26. The ALJ also

determined that based on the application for supplemental security income protectively filed on

November 3, 2018, the claimant is not disabled under section 1614(a)(3)(A) of the Act. Id.

ANALYSIS

Plaintiff asserts a single point of error. Plaintiff contends that the ALJ’s RFC finding was

not supported by substantial evidence because it did not precisely match a medical opinion in the

record. See ECF No. 8-1 at 2, 8-15. Therefore, Plaintiff alleges, the ALJ based the RFC assessment

on his own lay judgment. See id.

In response, the Commissioner argues that substantial evidence supports the ALJ’s RFC

determination, and there is no requirement that the ALJ’s RFC finding mirror a medical opinion.

See ECF No. 9-1 at 6-12.

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 thoroughly considered

the evidence of record, including Plaintiff’s longitudinal treatment history, his mental status

examination findings, and his wide range of activities, and the ALJ reasonably concluded that if

Plaintiff stopped the substance use, he would have the capacity to perform unskilled, low stress

jobs that are not in fast-paced work environments, but include simple, routine, and repetitive tasks

and breaks every hour lasting two to three minutes in addition to regularly scheduled breaks. Tr.

19-25. Accordingly, the Court finds no error in the ALJ’s RFC finding.

As the ALJ noted, the longitudinal medical record reveals evidence of significant

psychiatric deterioration in the Spring and Summer of 2019, culminating in a psychiatric

hospitalization in May 2019. Tr. 19-20, 413-17, 439-41, 504, 545. Plaintiff was seen on an urgent

basis at Buffalo Medical Group (“BMG”) on May 20, 2019. Tr. 387-89, 439-41. He had been

discharged from DENT Neurologic Institute (“DENT”) after he “stopped Psych meds on [his]

own,” and they would no longer prescribe medical marijuana. Tr. 439. He reported feeling worse;

he was “nauseous and sick;” and “feels like he can’t work.” Id. On examination, he appeared “not

anxious” and “[did] not exhibit a depressed mood;” he was agitated; his speech was delayed; and

he “express[e]d impulsivity.” Tr. 440. He expressed no suicidal or homicidal ideation. Id.

Shortly thereafter, on May 22, 2019, Plaintiff’s mother called the “Crisis Services Team”

from Erie County Medical Center (“ECMC”) because Plaintiff had “been acting ‘bizarre’ and

experiencing psychosis.” Tr. 413-17. Due to Plaintiff’s “recent aggressive behavior,” 911 was also

called. Tr. 413. Plaintiff admitted that he had stopped taking his medications for over a year. Id.

His mother reported that he had been sending her “weird texts;” he had not been sleeping or eating

for the past few days; and he was possibly using drugs off the street. Tr. 414. He had also been

spending money rapidly, including $3,000.00 on gym equipment. Id. His other bizarre behavior

included going out in the middle of the night with his hockey bag full of items such as baseball

cards. Id. When approached by police officers and told he would be taken to the hospital, Plaintiff

punched an officer several times in the face. Id. The officer attempted to “taze” Plaintiff, which

was not effective, but eventually, Plaintiff was handcuffed and restrained on a stretcher. Id. While

on the stretcher, Plaintiff made statements that “Jay-Z needed to help him and that the water and

the lakes are all dirty and that LeBron James called him to tell him to play basketball.” Id.

Plaintiff was ultimately transported to ECMC, where he was hospitalized from May 23,

2019, through June 21, 2019. Tr. 414, 487-98. Plaintiff was readmitted to ECMC from June 27,

2019, through July 11, 2019; he had been brought in “by police after deteriorating markedly in the

week following discharge.” Tr. 472-86. On discharge, Plaintiff “was doing very well and stated

that he had not felt this well in a long time or perhaps ever.” Tr. 475.

Following his hospitalization, Plaintiff received psychiatric treatment from Landmark

Health (“Landmark”). Tr. 500-55. A treatment record dated July 15. 2019 indicated that Plaintiff

was being treated for medication management after his recent psychiatric hospitalization at ECMC

due to a substance-induced psychosis, which had since resolved. Tr. 504. The record also indicated

that since a TBI approximately five years prior, Plaintiff had “repeatedly become psychotic for

extended periods when he would use K2 or other designer/synthetic drugs.” Id. Plaintiff reported

consistent periods of depressed mood, low energy, sleep disturbance, negative thinking, and

feelings of extreme guilt during periods of depression; however, he denied any symptoms of

depression, psychosis, mania, or anxiety, and also denied any suicidal or homicidal ideation. Id.

Plaintiff’s mother was present during this psychiatric visit and reported that Plaintiff “ha[d] never

exhibited psychotic symptoms outside of substance use.” Id.

On July 31, 2019, Plaintiff was seen for a consultation regarding restarting his medical

marijuana. Tr. 545. He admitted that he resorted to recreational marijuana after his medical

marijuana was terminated by DENT in May 2019 due to medication noncompliance. Id. The illicit

drugs had adverse effects, which resulted in his psychiatric hospitalization. Id. During a psychiatric

follow-up visit in August 2019, Plaintiff reported that he was struggling with weight gain and a

lack of motivation. Tr. 508. He was using double the recommended dose of his medical marijuana

because he felt little benefit from the recommended dose. Id. The record states that Plaintiff was

“fixated on medical marijuana and obtaining more” and “seemed unwilling to discuss much else

at [that] time.” Id. Although he was clinically stable, he required continued monitoring of his

chronic symptoms of PTSD, and it was noted that his recent bout of substance-induced psychosis

was likely prolonged due to his history of TBI. Tr. 510.

As noted above, Plaintiff challenges the ALJ’s RFC finding. 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); 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 his claims on November 3, 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).

Here, the ALJ complied with the regulations, and contrary to Plaintiff’s contention, the

ALJ thoroughly considered the medical and non-medical evidence in the record, including

Plaintiff’s longitudinal treatment history, his mental status examination findings, and his wide

range of activities, to formulate an RFC that properly accounted for all of Plaintiff’s credible

limitations, as supported by the record.

First, the ALJ’s RFC finding is consistent with Plaintiff’s longitudinal treatment history.

Tr. 19-25. See SSR 96-8p, 1996 WL 374184, at *5 (identifying “medical history” as relevant

evidence when assessing RFC). For example, in August 2018, shortly after Plaintiff’s June 2018

alleged disability onset date, DENT provider Nicole E. Miller, P.A.-C. (“Ms. Miller”), noted that

Plaintiff reported he was not using illicit drugs; he was using only medical marijuana as prescribed;

the results of Ms. Miller’s mental status examination showed intact memory, coherent speech, only

moderately diminished concentration, and no evidence of hallucinations or delusions. Tr. 435-36.

In November 2018, Horacio Capote, M.D. (“Dr. Capote”), also a DENT provider, noted that

Plaintiff reported he benefited from medical marijuana, experiencing only mild depression and no

anxiety. Tr. 429, 432. Dr. Capote’s mental status examination findings were similar to Ms.

Miller’s, both of which are consistent with an RFC for unskilled, low stress jobs that are not in

fast-paced work environments. Tr. 23, 431, 435-36.

In January 2019, Plaintiff participated in cognitive behavioral therapy sessions with

Christopher D. Radziwon, Ph.D. (“Dr. Radziwon”). Tr. 352-56. Dr. Radziwon noted that Plaintiff

reported he was “doing well” on prescribed medical marijuana, and he enjoyed “working out and

helping people at the gym.” Tr. 352-62. As the ALJ noted, in February 2019, Ms. Miller again

noted that Plaintiff reported he was not using illicit drugs, and her mental status examination

showed intact memory, coherent speech, “pretty good” mood, only moderately diminished

concentration, and no evidence of hallucinations or delusions. Tr. 21-23, 67-68, 425-27, 463-65;

see also Ervin-Atkinson v. Comm’r of Soc. Sec., No. 18-CV-1056-FPG, 2020 WL 830434, at *3

(W.D.N.Y. Feb. 20, 2020) (The ALJ properly focused on the record evidence from the claimant’s

periods of abstinence from illicit drugs in determining the claimant’s RFC). In March 2019, Lauren

Jendraszek, R.P.A.-C. (“Ms. Jendraszek”), noted that Plaintiff remained on medicinal cannabis for

symptom management with a good response, including a stable mood and the ability to participate

in “his normal daily activities.” Tr. 458, 460. Ms. Jendraszek’s examination showed normal

neurological findings; Plaintiff readily engaged in conversation; and he had clear and logical

thoughts. Tr. 460. Based on the foregoing, Plaintiff’s longitudinal treatment history is consistent

with the RFC finding.

The ALJ also considered that Plaintiff required psychiatric hospitalization in May 2019

due to substance-induced psychosis caused by Plaintiff using street drugs or recreational marijuana

after his medical marijuana was terminated. Tr. 19-20, 413-17, 439-41, 504, 545. However, the

ALJ emphasized that subsequent treatment notes showed that Plaintiff denied illicit drug use and

any new psychiatric symptoms, and his mental symptoms improved with counseling,

psychotherapy, and prescribed medication. Tr. 20-21, 23-24, 501-18, 530-39, 541, 543. Landmark

providers Jarod Masci, M.D. (“Dr. Masci”), Meghan Canfield, L.C.S.W. (“Ms. Canfield”), and

Melissa Sabadasz, L.M.H.C. (“Ms. Sabadasz”), provided mental status examination reports

beginning on July 15, 2019 that showed good eye contact, fair to good insight and judgment, and

a logical and goal-directed thought process. Tr. 21-24, 501-21, 530-37, 543.

On July 22, 2019, BMG provider Pamela J. Burton, P.A. (“Ms. Burton”), described

Plaintiff as attentive and observed normal behavior and thought content. Tr. 391, 443, 472. In

November 2019, Ms. Burton observed that Plaintiff had normal speech and thought content. Tr.

451. During a medical marijuana follow-up visit with Maria Janda, Pharm.D. (“Dr. Janda”) in

January 2020, Plaintiff’s mental status examination findings showed a good mood; fair insight,

judgment, and eye contact; no hallucinations; coherent speech with normal rate/volume; and

logical, linear, and goal-directed thoughts. Tr. 542. These findings all provide further support for

the ALJ’s RFC assessment.

Plaintiff’s reported activities also support the RFC assessment. See Monroe v. Comm’r of

Soc. Sec., No. 16-1042-cv, 676 F. App’x 5, at *8-*9 (2d Cir. 2017) (the ALJ properly considered

evidence of the claimant’s activities when assessing RFC). The record shows that Plaintiff worked

at part-time jobs when not taking illicit drugs during the period at issue, including working at two

part-time jobs simultaneously in September 2019. Tr. 18, 21-22, 24-25, 40-46, 213-14, 365, 425,

433, 458, 460, 462, 520-26. See Jill A.H. v. Comm’r of Soc. Sec., No. 1:20-CV-1218, 2022 WL

1173480, at *5 (W.D.N.Y. Apr. 20, 2022) (Part-time work may show that a claimant “is able to

do more than they actually did”) (citing Washburn v. Colvin, 286 F.Supp.3d 561, 565 (W.D.N.Y.

2017)); Elizabeth K. v. Kijakazi, No. 20-CV-1465L, 2022 WL 1049244, at *2 (W.D.N.Y. Apr. 7,

2022) (the ALJ properly considered the claimant’s engagement in part-time work when

determining her RFC). In addition, Plaintiff drove, adhered to a regular exercise schedule at the

gym, played hockey multiple nights per week, and attended night school three days a week to

become a certified personal trainer. Tr. 22-25, 47-48, 352-61, 365, 367, 393, 425, 435, 445, 458-

60, 504, 524-26. See also Margo J. Comm’r of Soc. Sec., No. 6:20-cv-1614-DB, 2022 WL 409573,

at *8 (W.D.N.Y. Feb. 10, 2022) (the claimant’s wide range of activities supported the ALJ’s

finding that she could do unskilled/simple work).

Plaintiff argues that the ALJ erred because he did not adopt the RFC assessment verbatim

from a medical opinion, and thus allegedly based the RFC assessment on his own lay judgment.

See ECF No. 8-1 at 2, 8-15. However, Plaintiff’s argument wrongly presumes that RFCs are

medical determinations, and thus, outside the ALJ’s expertise. 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).

Furthermore, 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); John H. v. Comm’r, Soc. Sec., No.

1:20-CV-921-DB, 2021 WL 2355107, at *4 (W.D.N.Y. June 9, 2021) (“Determining a claimant’s

RFC is an issue reserved to the Commissioner, not a medical professional”); see also Bliss v.

Comm’r of Soc. Sec., No. 10-1558, 406 F. App’x 541, 542 (2d Cir. 2011) (“[T]he ALJ need not

involve medical sources or claimant’s counsel in his deliberative process or assessment of the

evidence”); Julie W. v. Comm’r of Soc. Sec., No. 20-CV-01042, 2021 WL 6064389, at *7

(W.D.N.Y. Dec. 22, 2021) (“an RFC may be supported by substantial evidence, even if it does not

correspond to any particular medical opinion”) (internal citations omitted); Thus, Plaintiff has

failed to identify an error in assessing RFC that requires remand.

Moreover. as previously noted, Plaintiff bears the ultimate burden of proving that he 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). While Plaintiff may disagree with the ALJ’s conclusion,

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

conclusions, which he has failed to do.

For all the reasons discussed above, the Court finds that the ALJ properly considered the

evidence of record, including the treatment history, mental status examination findings, and

Plaintiff’s wide range of activities, and the ALJ’s findings are supported by substantial evidence.

Accordingly, the Court finds no error. When “there is substantial evidence to support either

position, the determination is one to be made by the fact-finder.” Davila-Marrero v. Apfel, 4 F.

App’x 45, 46 (2d Cir. Feb. 15, 2001) (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)).

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, 683 F.3d at 448

(emphasis in the original). As the Supreme Court explained in Biestek v. Berryhill, “whatever the

meaning of ‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not

high” and means only “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations

omitted).

CONCLUSION

Plaintiff's Motion for Judgment on the Pleadings (ECF No. 8) is DENIED, and the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 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.

k { Lye | / Ft

DON D. BUS

UNITED STATES MAGISTRATE JUDGE

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