Ridinger v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

RACHEL R., §

§

Plaintiff, §

§

v. § Case # 1:21-cv-851-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Rachel R. (“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 Child’s Insurance Benefits (“CIB”) 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.

10).

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

Procedure 12(c). See ECF Nos. 6, 8. Plaintiff also filed a reply. See ECF No. 9. For the reasons set

forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 6) is DENIED, and the

Commissioner’s motion for judgment on the pleadings (ECF No. 8) is GRANTED.

BACKGROUND

On July 1, 2019, Plaintiff protectively filed an application for CIB and an application for

SSI under Title XVI, alleging disability beginning July 10, 2019 (the disability onset date) due to:

“(1) herniated disc in lower back radiating down hips & legs; (2) bulging discs in neck radiating

into upper extremities; (3) migraines; (4) irritable bowel syndrome; (5) allergies; and (6) facial

pain from accident.” Transcript (“Tr.”) 10, 220-21, 222-28, 243. The claims were denied initially

on September 5, 2019, and upon reconsideration on December 26, 2019, after which Plaintiff

requested a hearing. Tr. 10. On October 20, 2020, Administrative Law Judge Robert Gonzalez (the

“ALJ”) conducted a telephonic hearing,1 at which Plaintiff appeared and testified and was

represented by Galena Duba-Weaver, an attorney. Tr. 10. V. Anthony (Tony) Melanson, an

impartial vocational expert, also appeared and testified at the hearing. Id.

The ALJ issued an unfavorable decision on November 9, 2020, finding that Plaintiff was

not disabled. Tr. 7-26. On May 27, 2021, the Appeals Council denied Plaintiff’s request for further

review. Tr. 1-6. The ALJ’s November 9, 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. 10.

II. Statutory and Regulatory Standards for CIB and SSI

A claimant generally bears the burden of proving that she was disabled throughout the

relevant time period. See 20 C.F.R. §§ 404.1512(a), 416.912(a); Schauer v. Schweiker, 675 F.2d

55, 59 (2d Cir. 1982). To satisfy that burden, she must show that she was unable to engage in any

substantial gainful activity due to some medically determinable physical or mental impairment or

combination of impairments that lasted, or were expected to last, for a continuous period of at least

12 months. 42 U.S.C. § 423(d)(1)(A). Whether a claimant is disabled under the Act is to be decided

by the Commissioner alone. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1); Naegele v. Barnhart,

433 F.Supp.2d 319, 324 (W.D.N.Y. 2006).

A claimant can be entitled to CIB, on the record of another wage earner, who, in turn is

entitled to old age or disability benefits, or who has died. 20 C.F.R. § 404.350. To be entitled to

CIB, the claimant must show that she was either under age 18 when she applied for benefits on or

18 years or older and have a disability which began before she turned 22. 20 C.F.R. § 404.350. In

this case, Plaintiff filed for CIB on the record of her mother, Melinda Ridinger. Tr. 74. Because

Plaintiff alleged disability prior to her application date of July 3, 2019, the ALJ considered the

entire relevant period from July 10, 2016, the alleged onset date, to November 9, 2020, the date of

the ALJ’s decision.

III. The Sequential Evaluation Process

To prove disability for either CIB or SSI purposes, the Commissioner applies a five-step

sequential analysis to determine a claimant’s disabled status. 20 C.F.R. §§ 404.1520, 416.920; see

Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (articulating the five-step analysis). 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 9, 2020 decision:

1. Born on October 28, 1996, the claimant had not attained age 22 as of July 10, 2016, the

alleged onset date (20 CFR 404.102, 416.120(c)(4) and 404.350(a)(5)).

2. The claimant has not engaged in substantial gainful activity since July 10, 2016, the alleged

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

3. The claimant has the following severe impairments: cervical spine and lumbar spine

degenerative disc disease and disc herniation; migraines; morbid obesity; status post

cerebral concussion; and cervical somatic dysfunction (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 light work as defined in 20

CFR 404.1567(a) and 416.967(a)2 except she must avoid concentrated exposure to dust,

fumes, and noxious gases. She cannot work at unprotected heights. She cannot climb

ladders, ropes, or scaffolds. She cannot have any jobs that require balancing. She can

frequently handle, finger, and reach bilaterally. She can frequently flex, extend, and rotate

the neck.

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

7. The claimant was born on October 28, 1996 and was 19 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 at least a high school education (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not an issue because the claimant does not have past relevant

work (20 CFR 404.1568 and 416.968).

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)).

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

July 10, 2016, through the date of this decision (20 CFR 404.350(a)(5), 404.1520(g) and

416.920(g)).

Tr. 10-26.

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.

Accordingly, the ALJ determined that, based on the application for child’s insurance

benefits protectively filed on July 3, 2019, the claimant is not disabled as defined in section 223(d)

of the Social Security Act prior to October 27, 2018, the date she attained age 22. Tr. 26.

The ALJ also determined that based on the application for supplemental security benefits

protectively filed on July 1, 2019, the claimant is not disabled under section 1614(a)(3)(A) of the

Social Security Act. Id.

ANALYSIS

Plaintiff asserts a single point of error challenging the ALJ’s finding that the opinion of

treating primary care physician (“PCP”) Jeremy Riedesel, M.D. (“Dr. Riedesel”), was not

persuasive. See ECF No. 6-1 at 9-14. Plaintiff asserts that Dr. Riedesel’s opinion was both

supported by his treatment notes and consistent with other evidence in the record, and the ALJ

provided only “conclusory” explanations to support his finding to the contrary. Id. As a result,

argues Plaintiff, the ALJ’s RFC finding was not supported by substantial evidence. Id.

In response, the Commissioner argues that the ALJ’s RFC finding was supported by

substantial evidence, including multiple medical opinions, the treatment notes showing

conservative treatment and largely benign findings, and Plaintiff’s activities of daily living, which

included performing household chores and driving. See ECF No. 8-1 at 8-24. Additionally, argues

the Commissioner, Plaintiff’s argument fails because the ALJ is tasked with weighing the evidence

and reaching an RFC finding based on the record, not one that tracks a single opinion, such as the

one from Dr. Riedesel. See id. at 8-9, 23.

A Commissioner’s determination that a claimant is not disabled will be set aside when the

factual findings are not supported by “substantial evidence.” 42 U.S.C. § 405(g); see also Shaw v.

Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence has been interpreted to mean “such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The

Court may also set aside the Commissioner’s decision when it is based upon legal error. Rosa, 168

F.3d at 77.

Upon review of the record in this case, the Court finds that the ALJ properly considered

the entire record, and the ALJ’s finding that Plaintiff could perform sedentary work with certain

limitations was supported by substantial evidence, including the medical opinion evidence,

treatment notes showing primarily conservative treatment and largely benign findings, and

Plaintiff’s activities of daily living, which included cooking, cleaning, laundry, shopping, and

driving. Accordingly, the Court finds no error.

The record reflects that Plaintiff was involved in a motor vehicle accident on July 9, 2016,

after which she sought treatment in the Emergency Department (“ED”) at Brooks Memorial

Hospital. Tr. 303-12. Plaintiff complained of right shoulder pain, neck pain, and back pain. Tr.

303. Positive physical examination results included right shoulder ecchymosis, diffuse tenderness

of the neck, and tenderness to the entire back Id. at 304-05. However, right shoulder x-rays showed

only negative results. Id. at 311.

On July 12, 2016, Plaintiff followed up with Natalie N. Pierce, RPA-C (“Ms. Pierce”), and

Donald F. Brautigam, M.D. (“Dr. Brautigam”), at Westfield Family Physicians (“Westfield”). Tr.

331-34. Plaintiff complained of dizziness, intermittent blurred vision, some mild swelling of the

right cheek, and history of lower back pain. Tr. 333. Plaintiff was assessed with post-concussion

syndrome with forehead and facial contusions and mild post-concussion symptoms. Tr. 334.

Plaintiff was prescribed ibuprofen, ice, heat, and exercises for her shoulder and upper arm pain.

Tr. 333-34.

During a follow-up visit at Westfield on July 21, 2016, Plaintiff reported that, although she

still had pain, was “feeling better;” ibuprofen was helping her pain; her post-concussion symptoms

had improved; and she was no longer having issues with headaches. Tr. 344. Plaintiff also reported

that she only occasionally experienced dizziness, which did not last very long. Id. Plaintiff also

reported that she was not experiencing any changes in vision, other than issues related to her

glasses being damaged in the motor vehicle accident. Id. She also reported increased anxiety with

driving. Id. Physical examination on that day demonstrated normal range of motion of the neck,

no discomfort with moving, only minimal facial tenderness at the check, full range of motion of

the right shoulder, and only mild discomfort of the right anterior shoulder. Tr. 345.

Shortly thereafter, on August 1, 2016, Plaintiff reported having issues with headache and

continued neck pain. Tr. 347. She still had not gone to have her glasses fixed. Id. She also reported

increased anxiety since the accident. Id. On examination, Plaintiff showed discomfort mostly on

the right side of the neck; some tenderness to the anterior shoulder on palpation; and pain with full

flexion of the neck. Tr. 348. However, she again exhibited only mild tenderness of the right

forehead; “okay” range of motion of the neck, only mild discomfort with rotating the neck from

side to side, “okay” range of motion of the shoulders; no pain on palpation of the mid-back; and

intact sensation to the upper extremities. Id. Ms. Pierce believed that Plaintiff’s headaches were

related to neck strain and recommended physical therapy for her neck and shoulder and an eye

exam, as well as ibuprofen as needed, ice and heat. Id. Subsequent cervical spine x-rays on August

3, 2016 showed no significant abnormalities. Tr. 314.

Plaintiff saw Ms. Pierce on August 22, 2016, complaining of daily neck pain and

headaches. Tr. 350. On examination, there was neck discomfort with flexion and mild clavicle

tenderness. Tr. 351. Plaintiff indicated that she had never started physical therapy treatment as

recommended. Tr. 350.

Plaintiff attended an initial mental health assessment at Deerfield Behavioral Health Center

on September 7, 2016. Tr. 316-23. However, the record indicates that she was discharged on

November 8, 2016, after attending only one therapy session. Tr. 324.

On October 19, 2016, Plaintiff had a follow-up visit with Ms. Pierce and similarly reported

neck pain and headaches, but she still had not started physical therapy. Tr. 353. She reported that

her anxiety had improved despite going to a counselor only once, and she was now driving again.

Tr. 356. On examination, neck range of motion was normal, but discomfort was present. Tr. 357.

There was mild spasm along the trapezius with posterior tenderness. Id.

On May 19, 2017, Plaintiff was evaluated by Joshua Radecki, PA-C (“Mr. Radecki”), at

Family Health Medical Services (“FHMS”). Tr. 1004-06. The treatment note indicates that

Plaintiff had hip pain due to a herniated disc in the lumbar spine that was diagnosed before the

accident, but the pain in her lower back and hips had worsened. Tr. 1004. Mr. Radecki noted that

Plaintiff “appear[ed] morbidly obese.” Id. Examination revealed tenderness to palpation over the

posterior neck and upper back to light touch. Tr. 1005. Plaintiff was started on meloxicam. Id.

Plaintiff returned for a follow-up visit with Mr. Radecki on September 28, 2017. Tr. 1007-

09. She had not taken the meloxicam that had been prescribed at the last visit. Tr. 1007. She stated

she was “just dealing with the pain.” Id. Examination revealed tenderness to palpation over the

lumbar spine and midline over the left hip. Tr. 1008. Mr. Radecki explained that they could “not

move on to different steps until anti [-]inflammatory [medication] has been tried.” Id. Plaintiff

agreed to start meloxicam and call in two weeks if her pain did not improve. Id.

Plaintiff was seen by Dr. Riedesel at FHMS on November 2, 2017, complaining of swelling

over the right side of the face and continued neck pain. Tr. 1010-12. On examination, there was

tenderness on palpation over the zygomatic arch, as well as tenderness in the neck over the right

lateral surface and mildly limited range of motion. Tr. 1011. Dr. Riedesel ordered an MRI of the

cervical spine and complete x-rays of the facial bones and prescribed amitriptyline. Tr. 1011-12.

A cervical MRI performed on May 3, 2018, revealed left paracentral C4-5 disc protrusion causing

a leftward anterior impression on the thecal sac. Tr. 326.

On June 19, 2018, Plaintiff followed up with Dr. Riedesel to review her MRI results. Tr.

1013. She had continued worsening facial, neck, back, and hip pain. Tr. 1013. Examination was

unchanged. Tr. 1014. Dr. Riedesel indicated that it was unclear what caused the facial pain. Tr.

1014-15. Plaintiff had not yet started amitriptyline for her headaches due to fear of possible side

effects. Tr. 1015. Dr. Riedesel diagnosed cervical displacement at C4-C5 level and referred

Plaintiff to neurosurgeon Jeffrey Lewis, M.D. (“Dr. Lewis”), for a surgical evaluation. Id.

Plaintiff saw Dr. Lewis on July 20, 2018. Tr. 336-37, 364-65. She reported shooting neck

pain, arm weakness, face pain, finger pain, shoulder pain, and headaches. Tr. 364. Despite these

complaints, Plaintiff reported to Dr. Lewis that she had not participated in any physical therapy or

chiropractic treatment. Id. Plaintiff reported her height as 5’9” and her weight as 294 pounds. Id.

On examination, Plaintiff showed only mildly restricted range of motion of the cervical spine on

flexion and extension, with otherwise completely normal physical examination results, including

normal gait, normal mentation, normal muscle tone and strength of the head and neck, and no

dislocation, subluxation, or laxity of the cervical spine. Tr.336-37. Plaintiff also had normal range

of motion of the upper extremities, normal muscle tone and strength of the upper extremities,

normal upper extremity motor and sensory function, normal upper extremity reflexes, and no

dislocation, subluxation, or laxity of the upper extremities. Id. Similarly, Plaintiff exhibited normal

lumbar spine range of motion, normal range of motion of the lower extremities, normal muscle

strength and tone of the lower extremities, normal lower extremity motor and sensory function,

normal lower extremity reflexes, and no dislocation, subluxation, or laxity of the lower extremities.

Tr. 337.

Dr. Lewis noted that an MRI of Plaintiff’s cervical spine had showed a small central disc

herniation at the C4-C5 level, with thecal sac compression. Tr. 336. He recommended a trial of

cervical physical therapy, but if this was not successful, discectomy and placement of an artificial

disc at C4-C5 was an option. Tr. 365. Plaintiff was to return in two months after trying physical

therapy. Id.

On September 26, 2018, Plaintiff attended an independent neurosurgical examination with

Richard Kanoff, D.O. (“Dr. Kanoff”), for Worker’s Compensation purposes. Tr. 729. She reported

headaches, neck pain, and low back pain. Tr. 729-30. She reported ten-minute sitting tolerance and

five-minute walking tolerance. Tr. 730. On examination, there was mild right eye lag in cranial

nerves. Tr. 731. There was low back pain on straight leg raise at 80 degrees. Tr. 732. There was

mild lumbar tenderness to palpation; cervical range of motion was decreased on flexion, extension,

and bilateral side bending; and there was cervical midline tenderness and bilateral paraspinal

tenderness. Tr. 733.

In terms of Plaintiff’s need for further treatment, Dr. Kanoff noted that Plaintiff had not

received any neurosurgical treatment other than one evaluation in July 2018 which recommended

physical therapy; however, at that time Plaintiff had not yet attended physical therapy. Id. Dr.

Kanoff accordingly opined that until Plaintiff completed a course of conventional physical therapy,

further treatment recommendations, such as injections or surgery, would be premature. Id. In

terms of Plaintiff’s ability to work, Dr. Kanoff opined that while Plaintiff had been able to work

light duty prior to the accident, she was now temporarily disabled from vocational activities due

to her new cervical and cognitive symptoms. Tr. 734.

Plaintiff had a follow-up visit at FHMS on December 11, 2018, requesting to restart

amitriptyline. Tr. 360-63. She complained of headaches with associated photophobia, and her neck

back, and shoulder pain remained. Tr. 360. Plaintiff reported she had seen neurosurgeon Dr. Lewis

who recommended surgery, but she was “terrified of having neck surgery” and requested a second

opinion. Id. On examination, Plaintiff walked with a normal gait; she had full range of motion in

the neck though with discomfort; and tenderness to palpation in the cervical paraspinal area,

trapezius, and midline spine. Tr. 361. Amitriptyline and propranolol were prescribed for her

headaches; and Plaintiff was referred for a neurosurgical second opinion. Tr. 362.

On December 26, 2018, Dr. Kanoff performed an updated examination that was largely

unchanged. Tr. 417-22. He provided the same opinion. Tr. 734.

Plaintiff followed up at FHMS on February 14, 2019, with headaches and low back pain.

Tr. 381. Her headaches had worsened since starting amitriptyline. Tr. 381. She had not taken

propranolol due to fear of side effects. Tr. 381. Dr. Riedesel noted that Plaintiff ’s personal injury

attorney suggested she apply for disability and advised her to discuss her “ability to perform

working duties” with her doctor. Id. Plaintiff reported she could not lift her arms above her head.

Id. On examination, Plaintiff had full range of motion in her extremities, but there was tenderness

to palpation over the lumbar spine and over the left hip. Tr. 382. Dr. Riedesel replaced amitriptyline

with Fluticasone propionate (Topiramate). Tr. 383.

On March 12, 2019, Plaintiff attended an initial physical therapy examination at Hertel and

Brown Physical Therapy. Tr. 413. On examination, her cervical range of motion was restricted,

and strength was reduced. Id. Goals included increasing strength and range of motion, and she was

recommended to attend two therapy sessions per week for four weeks. Tr. 413-14.

On March 28, 2019, Plaintiff underwent an additional neurosurgical consultation with

Ryan DenHaese, M.D. (“Dr. DenHaese”). Tr. 373-74, 375-76. During that examination, Plaintiff

reported symptoms including neck pain, headaches, and bilateral tingling of the hands, consistent

with radiculopathy. Tr. 375. She also complained of headaches, weakness, loss of energy, blurred

vision, and ringing in the ears. Id. On examination, Plaintiff ambulated unassisted. Tr. 376 She had

full (5/5) strength in her upper extremities, intact sensation, normal reflexes, and no Hoffman’s

sign or clonus. Id. Range of motion of the cervical spine was maintained but limited in the extremes

of flexion and extension, and there was paraspinal muscle tenderness diffusely. Id. Dr. DenHaese

recommended continuing physical therapy and a neurological consult. Tr. 373.

Plaintiff followed up with Dr. Riedesel on May 10, 2019, reporting worsening migraines.

Tr. 384. She reported she had been attending physical therapy for about a month, and she noticed

improvement in being able to turn her head to the left, but she was unable to turn to turn her head

to the right. Tr. 384. On examination, there was tenderness to palpation in the right posterior

surface of the neck, and right trapezius; moderately limited range of motion on forward flexion,

backward extension, and bilateral rotation; positive Spurling’s test with tingling and radiating

down the contralateral shoulder; and limited range of motion shoulders bilaterally with pain on the

right. Tr. 385. Dr. Riedesel noted some mild improvement in range of motion, but no change in

pain, frequency, or severity of headaches. Id. Because Plaintiff had an allergic reaction to

Topiramate. Dr. Riedesel started a trial of Verapamil. Id.

Another neurological examination with Dr. Kanoff on June 5, 2019, was largely

unchanged. Tr. 721-24. Dr. Kanoff recommended continued treatment, and opined that Plaintiff

was “totally disabled form vocational activities.” Tr. 724.

On June 20, 2019, Dr. Riedesel completed a Physical Medical Source Statement. Tr. 389-

92. Diagnoses were other cervical disc displacement at C4-5 and tension headaches, and her

prognosis was “unlikely to improve.” Tr. 389. He opined that Plaintiff could only walk one city

block. Tr. 390. He further opined that she could sit only less than two hours, and stand/walk only

less than two hours, in an eight-hour workday. Tr. 390. He also opined that Plaintiff would need

to change positions at will, and she would require unscheduled breaks roughly once per hour for

five to 10 minutes. Tr. 390. She could rarely lift less than 10 pounds and never more and never

twist, stoop/bend, crouch, squat, climb stairs, or climb ladders. Tr. 391. She could use her hands

and fingers for grasping, turning, twisting, and fine manipulation 25 percent of the time and use

her arms for reaching in the front five percent of the time, but she was unable to reach overhead.

Tr. 391. Finally, Dr. Riedesel opined that Plaintiff would likely be off task 25 percent of the time

or more; she was incapable of low stress work; and due to good and bad days, she would likely

miss more than four workdays per month. Tr. 392.

Plaintiff was discharged from physical therapy on June 27, 2019, after attending 26 visits.

Tr. 430. She reported her neck pain alternated between both upper extremities, but it had decreased

in intensity, and driving was easier. Tr. 430. She felt that overall, she had plateaued in her progress.

Id. On examination, cervical range of motion was largely unchanged. Tr. 431. Assessment noted

minimal progress, with small decrease in pain, some improvement in strength and range of motion,

and she was able to look over her shoulder with driving with improved ease. Id.

Plaintiff followed up with Dr. Riedesel on August 13, 2019. Tr. 804-06. She reported that

her lower back and hip pain had worsened and neck pain, as well as headaches. remained. Tr. 804.

She also reported increased memory loss and issues with short-term recall. Id. She was not

currently taking any medications; she had tried Verapamil, but it did not improve her headaches.

Id. Plaintiff had obtained a neurosurgical second opinion from Dr. DenHaese, who agreed that

surgery was the only option to improve her neck, but Dr. DenHaese felt that Plaintiff was too

young for surgery. Id. On examination, there was neck tenderness in the right posterior surface

and trapezius, with moderately limited range of motion. Tr. 805. Spurling’s test was positive

bilaterally, and shoulder range of motion was limited on the right with pain. Id. Dr. Riedesel

increased Verapamil and ordered a brain MRI. Tr. 805. On August 27, 2019, she was unchanged,

with continued memory loss and short-term recall issues. Tr. 807-08. The request for an MRI had

been denied until further testing to rule out other causes was performed. Tr. 807.

On August 23, 2019, Plaintiff underwent an internal medicine consultative examination

with Russell Lee, M.D. (“Dr. Lee”). Tr. 765-69. Plaintiff reported a history of neck pain since her

2016 automobile accident and lower back pain dating back to a fall at school in 2015. Tr. 365. She

also reported “tension” headaches and memory loss. Tr. 765-66. Plaintiff reported that she was

generally able to cook seven days per week, clean three days per week, launder twice per week,

shop once per week, shower daily, and dress herself daily. Tr. 766.

On examination, Plaintiff showed positive straight leg raise testing bilaterally, reduced

range of motion of the cervical spine, reduced range of motion of the lumbar spine, and reduced

flexion of the knees. Tr. 767-68. Otherwise, her examination results were normal, including normal

gait, normal squat, normal stance, normal vision, ability to walk on heels and toes without

difficulties, use of no assistive devices, and ability to change for the exam, rise from the chair, and

get on and off the exam table. Tr. 767. Similarly, Plaintiff had full range of motion of the shoulders,

elbows, wrists, and ankles; normal neurological examination results, including normal deep tendon

reflexes, no sensory deficits, and full strength in the upper and lower extremities; full grip strength

bilaterally; intact hand and finger dexterity; and no cyanosis, clubbing, edema, or muscle atrophy

of the extremities. Tr. 768. Cervical spine x-rays further revealed no evidence of acute fracture or

subluxation. Tr. 769-70. Dr. Lee opined that Plaintiff should avoid smoke, dust, and known

respiratory irritants and assessed a moderate limitation in activities requiring “walking great

distances and prolonged sitting.” Tr. 769.

On November 1, 2019, Plaintiff underwent a psychiatric consultative examination with

Todd Deneen, Psy.D. (“Dr. Deneen”). Tr. 1036-39. On examination, Dr. Deneen noted anxious

mood and affect; mildly impaired attention and concentration “due to anxiety in the evaluation;”

below average intellectual functioning; and Plaintiff’s general fund of information was

“appropriate to experience.” Tr. 1037. Dr. Deneen opined that Plaintiff had only a mild limitation

in sustaining concentration and performing a task at a consistent pace, sustaining an ordinary

routine and regular attendance at work, regulating emotions, controlling behavior, and maintaining

well-being, and no limitations in any other areas. Tr. 1038. He also found that Plaintiff’s

psychiatric problems did not appear significant enough to interfere with her ability to function

daily. Id.

On November 14, 2019, Plaintiff had a follow-up visit with Dr. Riedesel. Tr. 1040-44. She

reported increased anxiety and sleep difficulty. Tr. 1040. On examination, Dr. Riedesel noted

diminished strength in the spine with pain bilaterally. Tr. 1042. Verapamil was discontinued and

Tizanidine was started. Tr. 1043.

On February 25, 2020, Plaintiff reported that Tizandine was not helpful and “only made

[her] tired.” Tr. 1086. She complained of increased shooting pains to her arms and wrists, and

unchanged headaches. Tr. 1086. Neck, back, and hip pain remained as well. Tr. 1086. She also

reported increased numbness and weakness with difficulty gripping. Id. On examination, cervical

paraspinal tenderness and reduced neck range of motion remained. Tr. 1087. Spurling’s test was

positive with tingling and radiating down the right shoulder. Id. Shoulder strength was reduced

(4/5) with pain bilaterally and limited range of motion, and grip strength was reduced (4/5). Id. Dr.

Riedesel ordered an MRI and prescribed lidocaine patches for headaches. Tr. 1087.

During a video visit with FHMS on June 2, 2020, Plaintiff’s complaints were unchanged.

Tr. 1089-90. She reported daily headaches, but she stated they did not last as long and were less

frequent. Tr. 1090. She was not using the lidocaine patches that had been prescribed at her last

visit. Tr. 1089.

As noted above, Plaintiff challenges the ALJ’s consideration of the opinion evidence, as

well as the overall RFC finding. 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); SSR 96-8p, 61 Fed. Reg. 34,474-01 (July 2, 1996).

At the hearing level, the ALJ has the responsibility of assessing the claimant’s RFC. See 20 C.F.R.

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

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

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

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

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

01166(LEK TWD), 2015 WL 7749318, at *3 (N.D.N.Y. Oct. 15, 2015), report and

recommendation adopted, 2015 WL 7738047 (N.D.N.Y. Dec. 1, 2015) (“It is the ALJ’s job to

determine a claimant’s RFC, and not to simply agree with a physician’s opinion.”).

Additionally, it is within the ALJ’s discretion to resolve genuine conflicts in the evidence.

See Veino v Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). In so doing, the ALJ may “choose between

properly submitted medical opinions.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998).

Moreover, an ALJ is free to reject portions of medical-opinion evidence not supported by objective

evidence of record, while accepting those portions supported by the record. See Veino, 312 F.3d

at 588. Indeed, an ALJ may formulate an RFC absent any medical opinions. “Where, [] the record

contains sufficient evidence from which an ALJ can assess the [plaintiff’s] residual functional

capacity, a medical source statement or formal medical opinion is not necessarily required.”

Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017) (internal citations and quotation

omitted).

Moreover, the ALJ’s conclusion need not “perfectly correspond with any of the opinions

of medical sources cited in [his] decision,” because the ALJ is “entitled to weigh all of the evidence

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

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

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

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

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

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

for remand.).

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

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

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

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

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

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

perform the RFC as found by the ALJ.).

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

comprehensively revised its regulations governing medical opinion evidence creating a new

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

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

2017). Here, Plaintiff filed her claim on July 1, 2019, 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).

Contrary to Plaintiff’s contentions, the ALJ properly analyzed the opinion evidence and

the other evidence of record when developing Plaintiff’s RFC, and substantial evidence supports

the ALJ’s RFC assessment. See 20 C.F.R. §§ 404.1527, 416.927. Here, in reaching the RFC

finding, the ALJ considered the multiple medical opinions, some of which were more restrictive

than others, and he properly found more persuasive those opinions that were consistent with the

record, including Plaintiff’s treatment notes and normal activities of daily living. Tr. 17-24.

Plaintiff argues that the ALJ should have found Dr. Riedesel’s June 2019 opinion

persuasive. See ECF No. 6-1 at 13. Dr. Riedesel opined, inter alia, that Plaintiff could do less than

sedentary work; would have difficulty with reaching; would need to be off-task 25 percent or more

of the workday; and would need to be absent more than four days per month. Tr. 389-92. Contrary

to Plaintiff’s assertions, however, the ALJ thoroughly evaluated Dr. Riedesel’s opinion and

reasonably explained that he found Dr. Riedesel’s opinion unpersuasive because it was not

supported by his own treatment notes and not consistent with other evidence in the record. Tr. 22,

389-92. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2); see also 20 C.F.R. §§ 404.1520c(c)(1),

416.920c(c)(1) (supportability factor) 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2) (consistency

factor).

As the ALJ explained, Dr. Riedesel’s own treatment notes (and those of his colleagues at

FHMS) confirmed that they provided only conservative care to Plaintiff, mostly in the form of

routine medication management. Tr. 22, 385, 409, 797, 1042, 1080-81. The ALJ also explained

(referring to his discussion earlier in the decision) that despite some positive findings, Dr.

Riedesel’s findings overall showed that Plaintiff continued to demonstrate generally normal

physical examination results, such as normal gait, full (5/5) or nearly full (4/5) motor strength, and

full or nearly full range of motion. Tr. 22, 378, 382, 385, 1005, 1008, 1011, 1017.

In challenging the ALJ’s evaluation of the supportability factor, Plaintiff accuses the ALJ

of downplaying Dr. Riedesel’s positive findings, such as reduced range of motion of the back and

positive Spurling’s test. See ECF No. 6-1 at 18. Plaintiff also complains that the ALJ did not

sufficiently explain why these positive findings did not provide support for Dr. Riedesel’s opinion.

However, the ALJ acknowledged that despite some positive findings, Plaintiff had “a number of

good physical examination results” during her course of treatment with Dr. Riedesel, including

that Plaintiff still exhibited normal gait with walking, normal and symmetric motor strength of the

upper and lower extremities, and intact cranial nerves (Tr. 378, 382) and sometimes showed full

range of motion of the neck, despite exhibiting mildly and moderately limited neck range of motion

at other times (Tr. 378, 382, 385, 1005, 1008, 1014, 1017, 1021). Tr. 18. The ALJ also noted that

facial bone x-rays taken on May 21, 2018 revealed no evidence of fracture. Tr. 18, 330, 1085.

Further, noted the ALJ, Plaintiff required no surgical intervention and experienced

improvement in her signs and symptoms with medication, physical therapy and aquatic therapy

treatment. Tr. 18, 22. As the ALJ further noted, the record contained absolutely no evidence

justifying Dr. Riedesel’s extensive off-task limitation, absenteeism, unscheduled breaks, or

inability to perform even low stress work. Tr. 22. The ALJ observed that Plaintiff did not

experience any major exacerbations of her impairments, including no evidence of any repeat

emergency department visits or extended inpatient hospitalization treatment, and did not require

any ongoing mental health treatment. Based on the foregoing, the ALJ reasonably restricted

Plaintiff to sedentary work, the least physically demanding of the work categories. Tr. 15-16.

Plaintiff also claims that the opinion of consultative examiner Dr. Lee shows that she could

not do sedentary work. See ECF No. 6-1 at 20. As noted above, Dr. Lee opined that Plaintiff had

a moderate limitation in activities requiring walking great distances and doing prolonged sitting;

and needed to avoid smoke, dust, and known respiratory irritants. Tr. 769. Dr. Lee did not assess

any other limitations, such as a need for unscheduled breaks, to be off task or absent from work,

or a reaching limitation. Id. The ALJ explained that he accepted those portions of Dr. Lee’s opinion

that were supported by the doctor’s own findings and consistent with the record as a whole (i.e.,

the standing and environmental limitations), but he did not accept the limitations that were not

supported by, and consistent with, the evidence (the sitting limitation). Tr. 21. See 20 C.F.R. §§

404.1520c(c)(1), 416.920c(c)(1) (explaining that in evaluating medical opinions, the more a

medical source presents relevant objective evidence and supporting explanations to support his or

her opinion, the more persuasive that opinion will be found); 20 C.F.R. §§ 404.1520c(c)(2),

416.920c(c)(2) (explaining that the more consistent a medical opinion is with the evidence from

other medical and nonmedical sources, the more persuasive the medical opinion will be found).

The ALJ also acknowledged that Dr. Lee noted some positive findings on examination,

such as Plaintiff’s limited range of motion of the cervical and lumbar spine, hips, and knees; and

positive straight leg raising, but the ALJ noted that Dr. Lee’s other findings were normal. Tr. 20,

767-68. Specifically, Dr. Lee found that Plaintiff had a normal gait and stance, an intact ability to

walk on heels and toes, and an ability to squat fully. Tr. 21, 767. The ALJ also noted that Plaintiff

was able to rise from a chair without difficulty; needed no help changing for the examination or

getting on and off the examination table; and had normal deep tendon reflexes, intact sensation,

and full (5/5) motor strength. Tr. 21, 767-68. These findings were generally consistent with those

of Plaintiff’s treating providers, including normal gait, normal and symmetric motor strength,

intact cranial nerves, intact sensation, and intact reflexes, as discussed above. Tr. 18, 304, 332,

336-37, 350, 354, 357, 361, 365, 374, 378, 388, 399, 404, 419-21, 424, 794, 970, 1042, 1046.

Based on Plaintiff’s reduced range of motion of the back, hips, and knees, the ALJ

reasonably restricted Plaintiff from doing work that required significant walking or standing, such

as heavy, medium, or even light work; but based on the other normal findings, the ALJ reasonably

determined that Plaintiff was able to perform sedentary work, the least physically demanding of

the work categories. Tr. 16. Given Plaintiff’s history of asthma since childhood, the ALJ also

reasonably accepted Dr. Lee’s opinion that Plaintiff should avoid respiratory irritants. Tr. 16, 766,

769.

The ALJ also explained that he disagreed with Dr. Lee’s opinion that Plaintiff had a

moderate limitation in prolonged sitting, because the record, which included Dr. Lee’s mostly

normal findings, did not show that Plaintiff had a significant limitation in sitting. Tr. 22, 304, 332,

336-37, 350, 354, 357, 361, 365, 374, 378, 388, 399, 404, 419-21, 424, 767-68, 794, 970, 1042,

1046. As the ALJ further explained, Dr. Lee’s opinion that Plaintiff had a moderate limitation in

prolonged sitting was “vague since the doctor failed to adequately define what constituted

moderate or prolonged limitations, including failing to define how many hours the claimant could

sit or walk during an eight-hour workday.” Tr. 22. Thus, contrary to Plaintiff’s arguments (see

ECF No. 6-1 at 20), the ALJ reasonably explained his rationale, based on the evidence in the

record, for not adopting the sitting limitation assessed by Dr. Lee. Tr. 22.

In any event, even if the ALJ had adopted Dr. Lee’s opinion of a moderate limitation in

sitting, this would not be inconsistent with sedentary work. See Murray v. Colvin, No. 15-CV-

6384P, 2016 WL 5335545, at *10 (W.D.N.Y. Sept. 23, 2016) (rejecting argument that a moderate

limitation in prolonged sitting precludes sedentary work); Harrington v. Colvin, No. 14-CV-

6044P, 2015 WL 790756 at * 15 (W.D.N.Y. Feb. 25, 2015) (moderate limitation in sitting,

standing, and walking not inconsistent with RFC that claimant could sit, stand, and walk for six

hours a day respectively and supports a finding of light or medium work); see also Halloran v.

Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (“[t]he regulations do not mandate the presumption that

all sedentary jobs in the United States require the worker to sit without moving for six hours,

trapped like a seat-belted passenger in the center seat on a transcontinental flight.” ). Thus, Dr.

Lee’s opinion that Plaintiff had a moderate limitation in prolonged sitting is not at odds with

sedentary work. Accordingly, Plaintiff has failed to meet her burden to show that she was more

restricted than the ALJ had found. Parker v. Berryhill, No. 17-cv-252-FPG, 2018 WL 4111191, at

*4 (W.D.N.Y. Aug. 29, 2018) (holding that plaintiff bears the burden of showing that the RFC is

more limited than that found by the ALJ).

Plaintiff also argues that Dr. Riedesel’s opinion should have been found consistent with

the opinions of Dr. Kanoff, who examined plaintiff for Worker’s Compensation purposes and

found her either “temporarily totally disabled” (Tr. 422, 938) or “totally disabled” (Tr. 976). See

ECF No. 6-1 at 24. Plaintiff’s argument is meritless. First, Dr. Kanoff’s statement that Plaintiff

was disabled is an opinion on an issue reserved to the Commissioner, and as such, is inherently

neither valuable nor persuasive, and does not even have to be discussed in the ALJ’s decision. See

20 C.F.R. §§ 404.1520b(c), 416.920b(c) (stating some categories of evidence are inherently neither

valuable nor persuasive and the ALJ “will not will not provide any analysis” about how such

evidence was considered); see also 20 C.F.R. §§ 404.1520b(c)(3)(i), 416.920b(c)(3)(i) (including

statements that a claimant is disabled in this category of evidence, as they go to an issue reserved

to the Commissioner). Although the ALJ was not required to discuss Dr. Kanoff’s statements, he

did so, nevertheless, explaining that he did not find Dr. Kanoff’s statements persuasive because

they were vague and conclusory and did not adequately identify Plaintiff’s specific functional

limitations. Tr. 23.

As explained above, RFC is an administrative finding, not a medical one. 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, the ALJ is tasked with weighing the evidence in the record and reaching an RFC

finding based on the record, not one that tracks any particular opinion. See Schillo v. Kijakazi, 31

F.4th 64, 78 (2d Cir. 2022) (explaining that “an ALJ’s conclusion need not ‘perfectly correspond

with any of the opinions of medical sources cited in his decision,’ because the ALJ is ‘entitled to

weigh all of the evidence available to make a residual functional capacity finding that [is]

consistent with the record as a whole’”) (quoting Matta, 508 F. App’x at 56). Furthermore, the

ALJ “will assess your residual functional capacity based on all of the relevant medical and other

evidence,” not just medical opinions. 20 C.F.R. § 404.1545(a); 20 C.F.R. §§ 404.1513(a)(1), (4),

416.913(a)(1), (4) (explaining that evidence that can be considered includes objective medical

evidence, such as medical signs and laboratory findings; as well as evidence from nonmedical

sources, including the claimant, such as from forms contained in the administrative record).

Thus, opinion evidence is only one type of evidence an ALJ is required to consider. Here,

the ALJ also relied on Plaintiff’s treatment notes, as he is permitted to do. See Monroe, 676 F.

App’x. at 9 (holding that the ALJ could rely on treatment notes to formulate the RFC assessment,

and rejecting the argument that a medical opinion was required). Plaintiff complains that the ALJ

relied on “improper picking and choosing” the record evidence to support his conclusions. See

ECF No. 6-1 at 15. However, as explained above, the ALJ properly discussed the positive findings

in Plaintiff’s treatment records, as well as the normal findings. Tr. 16-18. See Jillian R. v. Comm'r

of Soc. Sec., No. 1:20-CV-1735-DB, 2022 WL 13697992, at *10 (W.D.N.Y. Oct. 21, 2022)

(explaining that the fact that the record contains some positive findings or opinions does not

undermine the ALJ's RFC finding where there is also evidence to support the ALJ's conclusion).

For example, the ALJ acknowledged that Plaintiff reported pain in her neck, back, and right

shoulder after her July 2019 motor vehicle accident and, at times, complained of dizziness, facial

pain, and headaches. Tr. 16-17, 303-05, 309, 331, 338, 345, 347. The ALJ also noted that the

record contained positive findings, such as discomfort with range of motion of the neck, upper

back, and left hip, and reduced shoulder strength, and positive Spurling’s test. Tr. 17-18, 386, 401,

411, 420, 1005, 1008, 1014, 1024. The ALJ also discussed a May 2018 cervical spine MRI

showing evidence of left paracentral C4-C5 disc protrusion, which caused a leftward anterior

impression on the thecal sac. Tr. 18, 326.

On the other hand, the ALJ noted that other findings were normal. Tr. 18. For example, the

ALJ discussed clinical findings showing that Plaintiff usually had full or only mildly limited range

of motion of the neck, normal range of motion of the lumbar spine, and normal range of motion of

the extremities. Tr. 18, 305-06, 332, 348, 351, 354, 365, 378, 388, 408, 411, 796, 1046. Plaintiff

also had full or “okay” range of motion of her right shoulder (Tr. 345, 348); no upper extremity

weakness (Tr. 350); and normal gait, normal and symmetric motor strength, intact cranial nerves,

intact sensation, and intact reflexes (Tr. 304, 332, 336-37, 351, 354, 357, 361, 365, 374, 378, 388,

399, 404, 419-21, 424, 794, 970, 1042, 1046). Tr. 17-18. Despite some complaints of headaches

and memory problems (Tr. 804), Plaintiff’s mentation and memory were normal on examination.

(Tr. 322, 336, 768, 970); her cognition did not appear impaired (Tr. 846, 851, 853, 855); and she

denied associated neurological or constitutional symptoms (Tr. 1004, 1007, 1010, 1013-14, 1046,

1087). Tr. 19. The ALJ also noted diagnostic studies, including facial bone x-rays in May 2018

revealing no evidence of fracture (Tr. 330, 1085) and a July 2016 x-ray of the right shoulder that

was negative (Tr. 779). Tr. 17-18.

In addition to considering Plaintiff’s treatment notes and other objective evidence showing

largely normal findings, the ALJ considered Plaintiff’s treatment modalities. See 20 C.F.R. §

404.1529(c)(3)(iv)-(v) (adjudicator properly considers the treatment modalities utilized, and the

effectiveness of treatment to relieve pain and other symptoms). Tr. 23. As the ALJ noted, Plaintiff

received only conservative treatment in the form of medication, physical therapy, and aquatic

therapy, and there was no evidence that Plaintiff required surgeries, hospitalizations, emergency

room treatment, referrals to a pain clinic, or injections, demonstrating that her symptoms were

well-managed with conservative care. Tr. 18, 22, 337, 348, 351, 407, 430-49, 457-58. See Penfield

v. Colvin, 563 F. App'x 839, 840 (2d Cir. 2014) (a claimant receiving only conservative treatment

is evidence that can weigh against allegations of disabling symptoms); see also Netter v. Astrue,

272 F. App’x 54, 56 (2d Cir. 2008); Shaffer v. Colvin, No. 1:14-CV-00745, 2015 WL 9307349, at

*5 (W.D.N.Y. Dec. 21, 2015) (finding that the ALJ properly discredited the claimant’s allegations

because her treatment was routine and conservative, consisting of medication management and

physical therapy).

Relatedly, as the ALJ highlighted, Plaintiff testified at the hearing that her treatment had

been helpful to her; physical therapy helped her musculoskeletal pain; and her headache

medication usually “completely” alleviated her headaches, although she still had migraines on

occasion. Tr. 18, 63. Plaintiff’s statements to her practitioners similarly confirmed that she

improved with both time and treatment. Tr. 332, 345, 347, 350, 410, 502, 509, 515, 517, 564, 665,

1016). See Reices-Colon v. Astrue, 523 F. App’x 796, 799 (2d Cir. 2013) (finding that

improvement with treatment was properly considered in concluding claimant not disabled); see

also 20 C.F.R. § 416.926a(a)(3) (ALJ must consider the effects of medications or other treatment

on a claimant's ability to function).

Notably, despite admitting that treatment was helping her, Plaintiff repeatedly declined to

comply with recommended treatment, as the ALJ also noted. Tr. 17. She repeatedly reported that

she was not taking prescribed medications or had discontinued medication on her own. Tr. 377,

795, 798, 1073, 1079, 1082, 1086, 1089. She also delayed starting physical therapy until March

2019, even though it had been recommended to her since at least July 2018. Tr. 17, 19, 336, 347,

348, 351, 354, 356. Plaintiff’s repeated failures to follow treatment recommendations further

undermined her allegation of disability. See SSR 16-3p, 2017 WL 5180304 *9 (explaining that if

the individual fails to follow prescribed treatment that might improve symptoms, the ALJ may find

that the alleged intensity and persistence of an individual’s symptoms are inconsistent with the

overall evidence in the record); Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (noting

that Dumas was unwilling to help himself by following treatment recommendations and

remarking, “[o]f course, a remediable impairment is not disabling”).

The ALJ also properly considered Plaintiff’s reported activities to support the RFC

assessment for sedentary work. Tr. 21, 24. See 20 C.F.R. § 404.1529(c)(3)(i); 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)). The ALJ acknowledged that Plaintiff testified at the hearing that she

had difficulty with her daily activities. Tr. 16, 66. However, as the ALJ correctly noted, Plaintiff

told Dr. Lee that she was able to cook, clean, do laundry, shop, and perform her personal grooming

(Tr. 766), and she told Dr. Deneen that she was able to shop, wash laundry, clean, cook, dress, and

shower (Tr. 1038). Tr. 21, 24. Plaintiff was also able to drive, which indicates that her neck range

of motion improved sufficiently for her to be able to drive. Tr. 283, 358, 1038. Voght v. Saul, No.

18 Civ. 1435-MJR, 2020 WL 3410837, at *5 (W.D.N.Y. Jun 19, 2020) (holding that the ALJ could

rely on the claimant’s statements about his daily activities in support of the RFC finding); see also

Cichocki v. Astrue, 729 F.3d 172, 178 (2d Cir. 2013) (holding that Plaintiff’s activities of daily

living was an important indicator of her true level of physical functioning); see also Ortiz v. Saul,

No. 1:19-cv-00942 (ALC), 2020 WL 1150213, at *1 (S.D.N.Y. Mar. 10, 2020) (“Plaintiff’s ability

to perform a range of light household chores, including cooking, shopping, cleaning, and laundry

. . . support[s] a light work RFC finding.”). In short, Plaintiff’s activities of daily living, along with

her treatment notes showing primarily conservative treatment, provide support for the ALJ’s RFC

finding.

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). 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 she 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 records, the opinion evidence, Plaintiff’s daily

activities, and her relatively conservative treatment, 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 factfinder.” 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 v. Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012)

(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. 6) is DENIED, and the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 8) 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.

Beg Bune.

UNITED STATES MAGISTRATE JUDGE

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