Houghwot v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

KENNETH H., §

§

Plaintiff, §

§

v. § Case # 1:21-cv-735-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM

§ DECISION AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Kenneth H. (“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. 11).

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 an application for SSI on October 9, 2018, alleging disability

beginning January 1, 2018 (the disability onset date), due primarily to a variety of physical

impairments. Transcript (“Tr.”) 15, 241-47, 272. Plaintiff’s claim was denied initially on February

11, 2019, and upon reconsideration on May 22, 2019, after which he requested an administrative

hearing. Tr. 15.

On June 23, 2020, Administrative Law Judge Brian Lemoine (“the ALJ”) conducted a

telephonic hearing,1 at which Plaintiff appeared and testified and was represented by Alexander

Kyler, an attorney. Tr. 15, 30. Margaret E. Heck, an impartial vocational expert, also appeared and

testified. Id.

The ALJ issued an unfavorable decision on July 1, 2020, finding Plaintiff not disabled. Tr.

15-25. On May 10, 2021, the Appeals Council denied Plaintiff’s request for further review, making

the ALJ’s July 1, 2020 decision the “final decision” of the Commissioner subject to judicial review

under 42 U.S.C. § 405(g). Tr. 1.

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

1 Due to the extraordinary circumstance presented by the Coronavirus Disease 2019 (“COVID-19”) pandemic, all

participants attended the hearing by telephone. Tr. 15.

(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 July 1, 2020 decision:

1. The claimant has not engaged in substantial gainful activity since October 9, 2018, the

application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairments: lumbar degenerative disc disease with

radicular symptoms to the right lower extremity; major depression; a history of opioid and

other substance abuse; and a history of borderline intelligence and learning disorder (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 sedentary work as defined in

20 CFR 416.967(a)2 except that he is limited to no more than occasional postural positions

to include crouching, crawling, stooping, kneeling, balancing, and climbing of stairs; no

climbing ropes, ladders or scaffolds, and mentally limited to the performance of simple

routine repetitive tasks, with no more than occasional interaction with others to include

coworkers and the general public.

5. The claimant has no past relevant work (20 CFR 416.965).

6. The claimant was born on September 26, 1982 and was 36 years old, which is defined as a

younger individual age 18-44, on the date the application was filed (20 CFR 416.963).

7. The claimant has at least a high school education and is able to communicate in English

(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).

2 “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.

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

October 9, 2018, the date the application was filed (20 CFR 416.920(g)).

Tr. 15-25.

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

income protectively filed on October 9, 2018, the claimant is not disabled under section

1614(a)(3)(C) of the Social Security Act. Tr. 25.

ANALYSIS

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

of the opinion evidence because he found the consultative examination opinions persuasive but

did not include all the limitations from these opinions in the RFC. See ECF No. 8-1 at 1, 8-14.

Specifically, Plaintiff contends that the ALJ failed to account for the limitation against prolonged

sitting assessed by physical consultative examiner Russell Lee, M.D. (“Dr. Lee”), and the

limitation in attention/concentration assessed by psychiatric consultative examiner Todd Deneen,

Psy.D. (“Dr. Deneen”). See id.

The Commissioner argues in response that the RFC was supported substantial evidence

and includes all necessary limitations. See ECF No. 9-1 at 9-22. First, the Commissioner argues

that Dr. Lee’s opinion that Plaintiff had prolonged sitting limitations was accommodated with the

sedentary RFC finding. See id. at 12-13. With respect to the mental RFC, the Commissioner argues

that the ALJ’s finding that Plaintiff was capable of only simple, routine, tasks and only occasional

interaction with others accommodates attention and concentration limitations. See id. at 21-24.

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 carefully reviewed the relevant

medical and non-medical evidence, including treatment records showing largely unremarkable

physical and mental status examinations, the opinion evidence, and Plaintiff’s activities of daily

living and abilities, and there is substantial evidence in the record to support the ALJ’s conclusion

that Plaintiff retained the RFC to perform a range of simple and sedentary work with the noted

limitations. Accordingly, the Court finds no error.

As the ALJ noted, Plaintiff alleges disability due to psychiatric and physical impairments.

See Tr. 20, 272. He testified that his main problems are the inability to stand, walk, and sit due to

back and hip pain, as well as difficulties with memory and concentration. Tr. 38-40, 49. Plaintiff

last worked in 2015 as a dishwasher but could not specify why he was fired. Tr. 523. As the ALJ

also noted, Plaintiff has a poor work history prior to alleged onset date. Tr. 23.

The record reflects an extensive history of mental health treatment at Chautauqua County

Department of Mental Hygiene, primarily related to substance abuse. Tr. 823-938. Plaintiff had

used heroin and later abused suboxone. Tr. 842. At the June 2020 hearing, Plaintiff testified that

he “had been clean for five years now, and [he was] trying to keep it that way.” Tr. 40. Plaintiff

has a history of multiple substance-related arrests, with one as recently as 2019 when he and his

brother were pulled over and meth discovered in the dashboard. Tr. 823.

On May 14, 2018, Plaintiff followed up at Family Health Medical Services, PLLC

(“Family Health”). Tr. 441. He had been off Wellbutrin for a week and needed a refill. Tr. 441.

Plaintiff reported he was in a suboxone program; he had formerly “used 18-20 bundles of heroin

a day” [but] had been clean for 2.5 years. Id. He also reported “he might have Hep C” but never

went back for testing. Id. Plaintiff also reported that he occasionally still “poke[d] himself with a

needle “out of habit” but did not inject anything. Id. It was noted that Plaintiff had a subcutaneous

abscess in his upper limb, but he denied using, and he was started on an antibiotic. Tr. 444. On

May 18, 2018, the abscess had improved, and there was only slight edema. Tr. 448. Plaintiff was

also started on trazodone. Id.

On August 25, 2018, Plaintiff presented to the WCA Hospital Emergency Department

(“ED”), complaining of right-hand numbness and paresthesia after injecting suboxone into his

right wrist. Tr. 338. On examination, he had mottled discoloration and reduced range of motion of

the right thumb, index, and middle finger. Tr. 341. Plaintiff was transferred to University of

Pittsburgh Medical Center (“UPMC”) for further vascular evaluation. Tr. 343, 419. Plaintiff

underwent an ultrasound-guided puncture of the right femoral artery and arteriogram of the right

ulnar and radial arteries and found to have “very small distal microvascular disease.” Tr. 419. No

intervention was performed, but it was noted that Plaintiff would “need eventual amputation.” Id.

He was discharged on August 27. Id.

On September 14, 2018, Plaintiff presented for a follow-up visit at Family Health following

his UPMC hospitalization. Tr. 601. He reported the discoloration was improving, but he still had

pain in the tips of his fingers. Id. On examination, it was noted that he appeared uncomfortable

and unkempt. Tr. 603. Plaintiff’s 4th and 5th digits appeared ischemic at distal portions; they were

cool and dusky red; and pain with movement was noted. Tr. 603.

On September 28, 2018, Plaintiff was evaluated by Amanda Cimorelli, PA-C (“Ms.

Cimorelli”), at UBMD Orthopedics & Sports Medicine (“UBMD Orthopedics”), for possible

amputations due to the necrosis in his right hand and fingers. Tr. 483. Plaintiff reported it was

difficult to use his hand due to pain. Id. 483. On examination, there was necrosis in the ring and

little fingers; he was able to actively flex and extend the PIP (proximal interphalangeal) and DIP

(distal interphalangeal) joints, but range of motion was limited with edema, stiffness, and

significant hypersensitivity. Tr. 484. Plaintiff was recommended to quit smoking for six weeks

before consideration of any surgical intervention. Id.

On October 15, 2018, Plaintiff followed up with Ms. Cimorelli at UBMD Orthopedics,

reporting worsening sensitivity, continued pain, and numbness/tingling in his right ring and little

fingers; he also reported decreased nicotine use. Tr. 504. Examination was unchanged. Tr. 505.

Plaintiff was also seen and examined by Robert Ablove, M.D. (“Dr. Ablove”), who concurred with

Ms. Cimorelli’s evaluation and recommended treatment. Tr. 505-06. Ms. Cimorelli discussed the

possibility of undergoing partial amputations of the ring and little finger but recommended first

proceeding with conservative measures to allow the body to salvage as much length as possible,

to which Plaintiff agreed. Tr. 505. During a follow-up visit on November 12, 2018, Plaintiff

reported mildly improved pain and paresthesia; and the blackened area of his little finger had fallen

off over the past few days. Tr. 507. Examination was otherwise normal. Tr. 508. Plaintiff was

advised to keep his digits moist and warm. Id. Dr. Ablove advised Plaintiff that the ring finger

would continue to demarcate, and the necrosis would fall off; accordingly, no surgical intervention

was recommended. Id.

On May 1, 2019, Plaintiff attended a depression follow-up visit at Family Health and

reported his depressed feelings were “okay” and “unchanged;” his energy level was “okay;” and

he was “aggravated by stress,” which was alleviated by medication. Tr. 610. He was taking his

medication as prescribed with no side effects. Id.

On May 16, 2019, Plaintiff underwent a consultative physical examination with Dr. Lee.

Tr. 517-21. Plaintiff reported right hip pain, low back pain, and hand pain. Tr. 517. On

examination, his gait was limping and strongly favoring the left. Tr. 518. He was unable to walk

on heels and toes, and squat was half. Tr. 518. Dr. Lee opined that Plaintiff was limited in

prolonged standing, prolonged sitting, or walking great distances. Tr. 520.

Also on May 16, 2019, Plaintiff underwent a psychiatric consultative examination with Dr.

Deneen. Tr. 523-30. He reported a history of depression and bipolar disorder. Tr. 523. On

examination, he appeared disheveled, and hygiene was poor. Tr. 524. Affect was dysphoric, and

mood was irritable. Tr. 524. Attention and concentration were impaired due to attention deficits.

Tr. 524. Recent and remote memory were impaired due to attention deficits, anxiety and possibly

pain; cognitive functioning was below average to borderline; and insight was fair. Id. Dr. Deneen

assessed mild limitations in understanding, remembering, and applying simple directions and

instructions; using reason and judgment to make work related decisions; regulating emotions,

controlling behavior, and maintaining wellbeing; and maintaining personal hygiene and attire; and

moderate limitations in understanding, remembering, and applying complex instructions and

directions; and sustaining concentration to perform tasks at a consistent pace. Tr. 525.

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). Plaintiff filed his claim on October 9, 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 ALJ focuses on the

persuasiveness of the medical opinion(s) or prior administrative medical finding(s) using the

following five factors: (1) Supportability; (2) Consistency; (3) Relationship with the claimant

(which includes: (i) Length of the treatment relationship; (ii) Frequency of examinations; (iii)

Purpose of the treatment relationship; (iv) Extent of the treatment relationship; and (v) Examining

relationship); (4) Specialization; and (5) Other factors. 20 C.F.R. §§ 404.1520c(a)-(c),

416.920c(a)-(c).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Finally, Congress granted the Commissioner exceptionally broad rulemaking authority

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

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

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

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

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

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

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

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

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

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

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

Campbell, 461 U.S. at 466).

Contrary to Plaintiff’s contentions, the ALJ in this case expressly detailed the basis for

finding Plaintiff capable of a range of sedentary work, and substantial evidence supports the ALJ’s

RFC finding. Tr. 19-23. See 20 C.F.R. §§ 404.1527, 416.927. For instance, the ALJ explained that

the RFC was “based on [Plaintiff’s] treatment for pain, demonstrated limp, generally mild

objective evidence and consultative examination opinions [, and] [f]urther limits, as alleged, are

not consistent with objective signs, symptoms, or findings in the medical evidence of record.” Tr.

22. The ALJ also explained that Plaintiff’s “history of back issues, with some limping, has been

taken into consideration in limiting the claimant to sedentary work and some postural restriction.”

Id.

Furthermore, the ALJ’s RFC reflects thorough consideration of Plaintiff’s hip and back

pain, including the results and opinion from consultative examiner Dr. Lee, as well as minimal and

benign examination findings. Tr. 19-23. First, the ALJ considered Plaintiff’s testimony that he

could not work due to an inability to sit, stand, or walk due to hip and back pain, which he alleged

caused pain after only five minutes of activity. Tr. 20, 38-44. However, the ALJ reasonably

concluded that the medical records did not corroborate the “level of incapacity alleged” but rather,

supported Plaintiff’s ability to perform “a wide range of sedentary work consistent with the above

residual functional capacity.” Tr. 20. Moreover, as discussed further below, the ALJ’s

determination that Plaintiff’s symptoms were not as severe as reported was also supported by many

treatment notes.

As the ALJ noted, treatment records pertaining to Plaintiff’s treatment for hip and back

pain was limited to treatment at his primary care facility, documenting largely unremarkable

examination findings. Tr. 20-21, 443, 576, 619. For instance, during an annual physical

examination in May 2018, Plaintiff complained of chronic low back pain, but he described his

general health as “good,” and he was working to improve his diet and exercise. Tr. 20, 441-43.

The examination was unremarkable, revealing that Plaintiff was comfortable and in no apparent

distress; had grossly intact light touch sensation; full and equal strength; and no spinal or extremity

abnormalities. Tr. 20, 443. Subsequent treatment records likewise document normal gait (Tr. 615,

749); unremarkable neurological function, including normal strength, sensation, and reflexes (Tr.

448, 728, 751); normal inspection of the spine (Tr. 728, 751); and no evidence of acute distress

(Tr. 447, 615, 728, 749, 751).

As the ALJ also observed, although Plaintiff intermittently requested pain medication for

his back pain (see, e.g., Tr. 441), the record indicates that Plaintiff’s back and hip pain were

managed with conservative treatment. Tr. 21-22. Ridosh v. Berryhill, No. 16-CV-6466L, 2018 WL

6171713, at *6 (W.D.N.Y. Nov. 26, 2018) (“Where, as here, a claimant has sought little-to-no

treatment for an allegedly disabling condition, his inaction may appropriately be construed as

evidence that the condition did not pose serious limitations.”) (quoting Diaz-Sanchez v. Berryhill,

295 F. Supp. 3d 302, 306 (W.D.N.Y. 2018)). For instance, during Plaintiff’s May 2019 annual

physical examination, he made no mention of back or hip pain, and the examination was

unremarkable. Tr. 611-13. Plaintiff similarly did not report back or hip pain during a November

2019 routine examination. Tr. 21, 617-20.

Although Plaintiff reported low back and hip pain in August 2019, he indicated that the

back pain had been present for only two weeks and stated he was “asked by his lawyer to record

[it] in [his] medical record for his SSI evaluation.” Tr. 614. Despite this, Plaintiff’s examination

did not reveal any corresponding positive clinical findings. Tr. 614-16. Plaintiff was in no apparent

distress; he walked with a normal gait; and he was advised to ice the area of low back pain. As the

ALJ also considered, Plaintiff was never referred for, and did not seek, specialty care for his back

and hip complaints, and he was adequately maintained on medications prescribed by his primary

care providers. Tr. 22. See 20 C.F.R. § 416.929(c)(3)(iv)-(v) (adjudicator properly considers the

treatment modalities utilized, and the effectiveness of treatment to relieve pain and other

symptoms); Cichocki v. Astrue, 729 F.3d 172, 178 (2d Cir. 2013) (impairment that can be

controlled by medication is not disabling).

The ALJ next considered the results of Dr. Lee’s May 2019 consultative examination. The

opinions of consultative examiners, such as Dr. Lee, can provide substantial evidence for an RFC.

Tr. 21, 517-21. See Grega v. Saul, 816 F. App’x 580, 582-83 (2d Cir. 2020) (citing Mongeur v.

Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) (The opinion of a consultative examiner may

constitute substantial evidence in support of an ALJ’s decision)). As the ALJ noted, Dr. Lee

observed some positive clinical findings, including that Plaintiff walked with a limp and had

slightly decreased sensation in the right leg; however, the ALJ also noted that the remainder of the

examination findings were largely normal and unremarkable. Tr. 22, 517-21. For instance, Plaintiff

was not in any acute distress, had a normal stance, and, despite his limp, did not use an assistive

device. Tr. 518. Plaintiff also did not need help changing for the examination or getting on and off

the examination table, and he could rise from a chair without difficulty. Id. Plaintiff had full motion

of the extremities, no muscle atrophy, and no neurological deficits, including full strength, full and

equal deep tendon reflexes, and no sensory deficits. Tr. 519-20.

Based on the foregoing, the ALJ reasonably found Dr. Lee’s opinion “persuasive” as to

limitations in activities involving prolonged standing, prolonged sitting, and walking great

distances because it was “consistent with the internal examination findings and the lack of

extensive treatment, with an absence of ongoing indicated neurological deficits or gait

abnormality,” as well as consistent with the minimal and conservative treatment Plaintiff required

for his back and hip pain Tr. 22, 443, 448, 520, 615. See 20 C.F.R. § 416.927c(c)(1)

(supportability); 20 C.F.R. § 416.927c(c)(2) (consistency). However, the ALJ also reasonably

found that Dr. Lee’s assessment of limitations associated with Plaintiff’s reported history of

asthma was not supported based on “the absence of continued breathing issues or asthma

exacerbations and by the normal spirometry noted on pulmonary tests,” and therefore, said

limitations were “not persuasive.” Tr. 22, 520.

Plaintiff argues that the RFC does not accommodate Dr. Lee’s opinion that Plaintiff had

prolonged sitting limitations, and the ALJ erred by not explaining why he “rejected” Dr. Lee’s

opinion as to prolonged sitting despite finding the opinion persuasive. See ECF No. 8-1 at 10-13.

Both arguments are meritless.

First, as courts in this Circuit have consistently recognized, moderate limitations in

exertional activities, including sitting, are not inconsistent with the ability to perform sedentary

work, just as moderate limitations in standing and walking would not preclude the ability to engage

in those activities for up to six hours throughout the workday, as required for light work,

particularly when interspersed with normal work breaks. See Snyder v. Saul, 840 F. App’x 641,

643 (2d Cir. 2021) (moderate limitations supported RFC for light work); Cook v. Comm’r of Soc.

Sec., 818 F. App’x 108, 109 (2d Cir. 2020) (RFC finding for light work was sufficiently supported

by a consultative examiner’s opinion assessing only some moderate limitations); see also Carroll

v. Colvin, No. 13-CV-456S, 2014 WL 2945797, *4 (W.D.N.Y. June 30, 2014) (noting that several

courts “have upheld an ALJ’s decision that the claimant could perform light or sedentary work

even when there is evidence that the claimant had moderate difficulties in prolonged sitting or

standing”); Harrington v. Colvin, No. 14-CV-6044, 2015 WL 790756 at *13, 14 W.D.N.Y. Feb.

25, 2015) (moderate limitations in sitting, standing and walking not inconsistent with sitting,

standing, and walking six hours a day) (collecting cases).

Second, contrary to Plaintiff’s argument, the ALJ did not “reject” Dr. Lee’s opined

limitation in activities involving prolonged standing, prolonged sitting, and walking great

distances. See ECF No. 8-1 at 10-13. Rather, the ALJ accommodated this limitation with the

sedentary RFC finding, the most restrictive exertional category of work. Tr. 19. See 20 C.F.R. §§

404.1520b(c)(3)(iii), 404.1546(c). Moreover, the ALJ was not required to wholesale adopt Dr.

Lee’s opinion solely because it was found to be persuasive, as Plaintiff appears to argue. See Barry

v. Colvin, 606 F. App’ x 621, 624 (2d Cir. 2015) (ALJ’s RFC finding need not include every

limitation assessed by a consultative examiner, and ALJ could, instead, exercise discretion in

reviewing the record evidence in its totality); see also Fancher v. Comm’r of Soc. Sec., No. 19-cv-

158 (KS), 2020 WL 5814359, at *5 (W.D.N.Y. Sept. 30, 2020) (“An ALJ is not required to adopt

wholesale the opinion of any one medical source, but is entitled to weigh all of the evidence

available to make an RFC finding that is consistent with the record as a whole.”). In any event, as

detailed above, the ALJ explained his rationale for finding Plaintiff capable of a range of sedentary

work. Tr. 19-23.

The ALJ also adequately considered and found “generally persuasive” the opinions of state

agency consultants indicating a range of light work, with occasional postural limits, environmental

limits due to asthma history, and moderate psychiatric restriction. Tr. 23, 101-107, 110-27. The

ALJ acknowledged that the consultants’ findings were supported by their review of the record and

consistent with the mild to moderate examination findings and Plaintiff’s conservative treatment

history. Tr. 23. However, the ALJ noted that the consultants did not have the benefit of reviewing

the entire record, and ultimately found that later-submitted evidence indicated that Plaintiff was

more limited than determined by the state agency consultants. Id.

Although in many respects the ALJ’s RFC reflects greater limitations than the opinions of

the state agency consultants and Dr. Lee, these opinions nevertheless provide substantial evidence

in support of the ALJ’s determination that Plaintiff could at least perform a range of sedentary

work. See Ramsey v. Comm'r of Soc. Sec., 830 F. App’x 37, 39 (2d Cir. 2020) (affirming where

“the ALJ occasionally deviated from consultative examiners’ recommendations to decrease

Ramsey’s RFC based on other evidence in the record”); see also Lesanti v. Comm’r of Soc. Sec.,

436 F.Supp.3d 639, 649 (W.D.N.Y 2020) (citing Baker v. Berryhill, No. 1:15-cv-00943-MAT,

2018 WL 1173782, at *4 (W.D.N.Y. Mar. 6, 2018) (“[R]emand is generally not warranted where

the ALJ's RFC finding is more restrictive than the limitations set forth in the medical opinions of

record.”).

While Plaintiff points to a few cherry-picked findings from Dr. Lee’s examination to

support his argument that the RFC should have included greater limitations, he ignores the

evidence and analysis that supported the ALJ’s RFC finding, including the largely normal

examination findings, Plaintiff’s routine and conservative treatment, his reported daily activities,

and the state agency consultants’ opinions. Thus, Plaintiff’s arguments are simply a request for a

reweighing of the evidence in his favor, which is inappropriate under the substantial evidence

standard of review. Pellam v. Astrue, 508 F. App’x 87, 91 (2d Cir. 2013) (“We think that Pellam

is, in reality, attempting to characterize her claim that the ALJ’s determination was not supported

by substantial evidence as a legal argument in order to garner a more favorable standard of

review.”). The fact that the evidence may have been weighed differently, or that there may be a

reasonable interpretation of the evidence in Plaintiff’s favor, is not probative. Caron v. Colvin, 600

F. App’x 43, 44 (2d Cir. 2015). Thus, contrary to Plaintiff’s suggestion otherwise, the ALJ’s RFC

finding for sedentary work was well supported by the record, and the Court finds no error.

Plaintiff next argues that the ALJ erred because the RFC determination does not mirror the

psychological consultative examiner’s opinion. See ECF No. 8-1 at13-14. As previously noted,

however, the ALJ was not required to rely on an opinion that mirrored the RFC, as Plaintiff argues.

As the Second Circuit recently reiterated, the RFC does not need to exactly correspond to a

particular medical opinion. Schillo v. Kijakazi, 31 F.4th 64, 77-78 (2d Cir. Apr. 6, 2022) (affirming

where the ALJ declined to adopt the limitations set forth in three treating source opinions, and the

RFC finding did not match any opinion in the record). Ultimately, an ALJ is tasked with weighing

the evidence in the record and reaching an RFC finding based on the record. See Tricarico v.

Colvin, 681 F. App’x 98, 101 (2d Cir. 2017) (citing Matta, 508 F. App’x at 56). In this case, the

ALJ relied on the available mental health treatment records and evaluations to determine that

Plaintiff had no more than moderate mental limitations. Accordingly, the ALJ’s finding that

Plaintiff was capable of unskilled, simple, routine, and repetitive tasks that required no occasional

interaction with others was also based on substantial evidence. Tr. 19-23.

First, the ALJ’s RFC finding is consistent with Plaintiff’s limited mental health treatment.

For instance, the ALJ considered that, Plaintiff’s mental health treatment was primarily limited to

medication prescribed by his primary care providers; and treatment records, including Plaintiff’s

statements to his providers, mental status examinations, and provider assessments indicate that his

mental impairments remained mild and stable. Tr. 20-21, 441, 52, 610, 617, 823. In May 2019,

Plaintiff reported to Dr, Deneen that he experienced episodic depression that was relieved with

medications prescribed by his primary care providers and was not in therapy or counseling. Tr.

523. On May 1, 2019, Plaintiff told his primary care provider that his “depressed feelings [were]

okay, depressed feelings remained unchanged and energy level [was] okay." Tr. 610. On

November 1, 2019, Plaintiff reported that his mood and energy levels were both “okay;” symptoms

improved with medication; and his medication caused no side effects. Tr. 617. Furthermore, there

is no evidence that Plaintiff was ever referred for formal psychiatric treatment, counseling, or

therapy. Tr. 20, 441, 619, 825.

Furthermore, as the ALJ discussed, Plaintiff’s mental status examinations were

unremarkable during the relevant period. Tr. 20-21. During an annual physical in May 2018,

Plaintiff was “pleasant and comfortable” and alert with normal mood and affect, articulate and

fluent speech, and full orientation. Tr. 20, 443, 447-48. As the ALJ also observed, subsequent

examinations continued to show stable and unremarkable examination findings, including

appropriate appearance, normal motor activity, and a cooperative and appropriate attitude. Tr. 21,

611, 619. Plaintiff also exhibited normal mood and affect; clear and appropriate speech; normal

thought processes; and intact associative thinking. Tr. 505, 611, 615, 619. The ALJ also noted that,

despite reported short-term memory issues, “none were reflected by treatment visits,” and

Plaintiff’s thought processes were “without dementia, overt illogical thinking, or compulsion and

his associative thinking was intact.” Tr. 21, 614-16. Although, the record indicates that Plaintiff

was referred to a neurologist for exploration of reported memory issues, it does not appear that he

followed through with the referral. Tr. 619. Accordingly, the ALJ appropriately concluded that the

mental status examinations did not support a finding that Plaintiff had marked limitations caused

by mental impairments. Tr. 21.

The ALJ also considered that Plaintiff’s reported daily activities were inconsistent with his

allegations of disabling symptoms and limitations. See 20 C.F.R. § 404.1529(c)(3)(i) (An ALJ may

consider the nature of a claimant’s daily activities in evaluating the consistency of allegations of

disability with the record as a whole.); see also Ewing v. Comm’r of Soc. Sec., No. 17-CV-68S,

2018 WL 6060484, at *5 (W.D.N.Y. Nov. 20, 2018) (“Indeed, the Commissioner’s regulations

expressly identify ‘daily activities’ as a factor the ALJ should consider in evaluating the intensity

and persistence of a claimant’s symptoms.”) (citing 20 C.F.R. § 416.929(c)(3)(i)). As the ALJ

observed, Plaintiff’s testimony and reports demonstrated that he was capable of cooking, shopping,

caring for himself, and visiting his daughter; and he maintained good relationships with his family.

Tr. 20, 518, 523, 525, 851. See Poupore, 566 F.3d at 307 (claimant’s abilities to watch television,

read, drive, and do household chores supported ALJ’s finding that his testimony was not fully

credible).

Plaintiff was also able to take medical transportation; manage his finances; recount his

health history; complete healthcare forms for treatment; and attend his medical appointments

without issue. Tr. 18, 20, 517-18, 523-25, 574, 582, 601, 610, 614, 617, 842-51. See Kenneth W.

v. Comm’r of Soc. Sec., No. 1:19-CV-0825 (WBC), 2020 WL 7385251, at *6 (W.D.N.Y. Dec. 16,

2020) (citing Lamorey v. Barnhart, 158 F. App’x 361, 363 (2d Cir. 2006) (“substantial evidence

of routine activities” properly found to be inconsistent with claims of total disability)); Cheatham

v. Comm’r of Soc. Sec., 2018 WL 5809937, at *10 (W.D.N.Y. Nov. 6, 2018) (finding that the

ALJ’s determination that plaintiff could maintain attention and concentration for simple, routine,

repetitive tasks and interact to some degree with others is supported by plaintiff’s activities, which

included using public transportation, preparing meals, cleaning, shopping and playing basketball).

The ALJ also considered that Plaintiff required only conservative care for his mental health

issues; he was not referred for formal psychiatric treatment; and he reported improvements with

just medications. Tr. 20, 22, 523. Furthermore, the record indicates that Plaintiff attributed his

inability to work to his physical impairments, not his mental impairments. Tr. 523, 525, 834. See

Clinton v. Saul, No. 19-CV-6114F, 2020 WL 5365996, at *7 (W.D.N.Y. Sept. 8, 2020) (ALJ

properly considered that plaintiff did not endorse mental health concerns, and examinations were

unremarkable).

Based on the foregoing evidence, including treatments records showing normal

examination findings and few complaints, as well as Plaintiff’s reported activities and conservative

treatment, the ALJ’s finding that Plaintiff was limited to simple, reduced-contact work as outlined

in the RFC was supported by substantial evidence, and Plaintiff’s allegation that he was further

limited than the ALJ assessed is not supported by the evidence. See Kirkland v. Colvin, 15-cv-

6002, 2016 WL 850909, *12 (W.D.N.Y. Mar. 4, 2016) (ALJ’s specific limitations were supported

by substantial evidence, including daily activities, treatment history, and consultative examiner’s

evaluation, even though such limitations did not precisely correspond to any medical opinion); see

also Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995) (ALJ properly relied on the absence of

findings in the record corroborating plaintiff’s allegations).

The ALJ also relied on the May 2019 opinion from psychological consultative examiner

Dr. Deneen to support the mental RFC finding. Tr. 21-22, 523-25. Dr. Deneen opined that Plaintiff

had no limitations interacting with supervisors, coworkers, and the public; sustaining a ordinary

routine and regular attendance at work and remaining aware of normal hazards and taking

appropriate precautions; and only mild limitations understanding, remembering, and applying

simple directions and instructions, using reason and judgment to make work related decisions,

regulating emotions, controlling behavior, and maintaining well-being, personal hygiene, and

appropriate attire. Tr. 525. Dr. Deneen further opined that Plaintiff had moderate limitations in

understanding, remembering, and applying complex instructions and directions, and in sustaining

concentration to perform tasks at a consistent pace. Id. Dr. Deneen ultimately concluded that

Plaintiff’s impairments did not appear to be “significant enough to interfere with [his] ability to

function on a daily basis.” Id.

The ALJ found Dr. Deneen’s opinion “persuasive,” explaining that the opinion was

supported by Dr. Deneen’s own examination findings, which showed mild and moderate deficits,

at most. Tr. 21. For instance, as the ALJ acknowledged, Dr. Deneen observed that Plaintiff had

impaired attention, concentration, and memory; irritable mood; and dysphoric affect; but

otherwise, he had a cooperative demeanor, appropriate speech, social skills, eye contact, and

appearance, goal-directed thought processes, and fair insight and judgment. Tr. 21, 524-25. The

ALJ also found the opinion was consistent with the record generally, including the mental status

examinations and treatment records discussed above, “which show no overwhelming mental

deficits, with no psychosis or mania and no significant ongoing deficit in concentration, or memory

that would significantly impede [Plaintiff’s] daily functioning.” Tr. 21-22. Thus, Dr. Deneen’s

opinion was fully consistent with the RFC limiting Plaintiff to no more than simple work.

Plaintiff complains that the ALJ did not explain how the RFC accommodated “an

attention/concentration limitation in Dr. Deneen’s opinion” and accuses the ALJ of not explaining

why he did not “include. . . [a] concentration limitation in the RFC.” See ECF No. 8-1 at 8-9, 11-

12. However, the ALJ’s finding that Plaintiff was capable of only simple, routine, tasks and only

occasional interaction with others, reasonably accommodates any attention and concentration

limitations. Tr. 19. See, e.g., Arthur M. v. Saul, No. 6:20-CV-06174-MJR, 2021 WL 2309884, at

*4 (W.D.N.Y. June 7, 2021) (finding that an RFC for simple, routine, tasks accommodated opinion

assessing moderate limitations in concentration, persistence, and pace and responding to changes

in a work setting) (citing Johnson v. Berryhill, 17-CV-00684, 2018 WL 4539622 (WDNY Sept.

21, 2018); Ana H. v. Comm’r of Soc. Sec., 19-CV-432, 2020 WL 6875252 (WDNY Nov. 23, 2020)

(RFC for simple, routine, repetitive tasks properly accounted for moderate limitation in responding

appropriately to usual work situations and changes in a routine setting). Accordingly, Plaintiff’s

argument is unconvincing.

Additionally, the ALJ adequately considered and found “generally persuasive” the prior

administrative findings from the state agency psychological consultants. Tr. 23, 105, 117-18.

While the ALJ found the opinions to be supported by the consultants’ respective reviews of the

record and consistent with Plaintiff’s benign mental status examination findings and conservative

treatment, the ALJ considered that the consultants did not have the benefit of reviewing later-

submitted evidence. Tr. 23. However, the consultants’ findings nevertheless provided additional

support for the ALJ’s determination that Plaintiff could at least perform a range of simple work.

Contrary to Plaintiff’s arguments, the ALJ’s rationale for the mental RFC finding is clear.

The ALJ discussed evidence pertaining to Plaintiff’s attention and concentration abilities,

including acknowledging that Dr. Deneen observed attention and concentration limitations, but the

ALJ also reasonably considered that the record otherwise consistently showed that Plaintiff was

able to attend and maintain focus and had normal cognition and thought processes. Tr. 18, 21-22,

524-25, 611, 619. As noted above, the ALJ also explained that Plaintiff received no formal mental

health treatment, only receiving medication management by his primary care provider, and he

reported stable and improved functioning with medications. Tr. 20, 441, 523, 610, 612, 617, 619.

Thus, the ALJ reasonably concluded that Plaintiff’s unremarkable examination findings coupled

with the lack of formal mental health treatment did not “reflect marked restrictions,” and his mental

conditions would not preclude him from performing “a range of unskilled work that did not involve

more than occasional interaction with others to include coworkers and the general public." Tr. 21-

22. Accordingly, the Court finds no error. See Michael R. v. Comm’r of Soc. Sec., No. 19-CV-

6836-MJR, 2021 WL 346365, at *8 (W.D.N.Y. Feb. 2, 2021) (“Further, the ALJ clearly considered

evidence relating to plaintiff's ability to maintain concentration, persistence, or pace, noting that

his statements about his ability to complete tasks and pay attention were inconsistent, but the

consultative examination documented some problems in this domain. The formulated RFC

therefore addresses and accounts for plaintiff's mental limitations.”) (internal citations omitted).

Plaintiff again cites to a few cherry-picked findings from Dr. Deneen’s’ examination to

support his argument that the RFC should have included greater limitations (see ECF No. 8-1 at

8-13), but Plaintiff ignores that the ALJ explicitly considered these findings and fails to cite any

objective evidence the ALJ overlooked. Tr. 21, 524-25. See Dyana G. o/b/o J.A.G. v. Comm’r of

Soc. Sec., No. 19-CV-805-FPG, 2021 WL 465249, at *3 (W.D.N.Y. Feb. 9, 2021) (“the existence

of such evidence does not mean that the ALJ erroneously evaluated [these opinions], especially

where, as here, there was ample other evidence supporting the ALJ's conclusion. It is the ALJ's

job to resolve conflicting record evidence and the Court must defer to that resolution.”) (internal

citations omitted); see also Valentin v. Comm’r of Soc. Sec., 820 F. App’x 71, 713 (2d Cir. 2020)

(“Valentin does not identify any evidence supporting a more limited RFC.”).

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.

Based on the foregoing, substantial evidence in the record supports the ALJ’s RFC finding.

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, 139 S. Ct. at 1154

(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.

bre (uvvvrt

DON D. BUS

UNITED STATES MAGISTRATE JUDGE

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