Perfetto v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ALLISA P., §

§

Plaintiff, §

§

v. § Case # 1:21-cv-556-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Allisa P. (“Plaintiff”) brings this action pursuant to the Social Security Act (the

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

“Commissioner”), that denied her application for Disability Insurance Benefits (“DIB”) under

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

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

1383(c), and the parties consented to proceed before the undersigned in accordance with a

standing order (see ECF No. 16).

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

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

reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 11) is

DENIED, and the Commissioner’s motion for judgment on the pleadings (ECF No. 13) is

GRANTED.

BACKGROUND

Plaintiff protectively filed applications for DIB and SSI on July 11, 2018, alleging

disability beginning July 6, 2017 (the disability onset date), due to multiple mental impairments,

headaches, and back pain. Transcript (“Tr.”) 28, 246. The claims were initially denied on

September 24, 2018, after which Plaintiff requested a hearing. Tr. 28. On March 16, 2020,

Administrative Law Judge Martha Bower (“the ALJ”) held a video hearing. Tr. 28. Plaintiff

appeared and testified in Buffalo, New York, and was represented by Carol A. Brent, an attorney.

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

Id. The ALJ issued an unfavorable decision on April 8, 2020, finding that Plaintiff was not

disabled. Tr. 28-38. On March 2, 2021, the Appeals Council denied Plaintiff’s request for further

review. Tr. 1-6. The ALJ’s April 8, 2020 decision thus became the “final decision” of the

Commissioner subject to judicial review under 42 U.S.C. § 405(g).

LEGAL STANDARD

I. District Court Review

“In reviewing a final decision of the SSA, this Court is limited to determining whether

the SSA’s conclusions were supported by substantial evidence in the record and were based on a

correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing 42 U.S.C.

§ 405(g)) (other citation omitted). The Act holds that the Commissioner’s decision is

“conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence

means more than a mere scintilla. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)

(citations omitted). It is not the Court’s function to “determine de novo whether [the claimant] is

disabled.” Schaal v. Apfel, 134 F. 3d 496, 501 (2d Cir. 1990).

II. The Sequential Evaluation Process

An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71

(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial

gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the

ALJ proceeds to step two and determines whether the claimant has an impairment, or

combination of impairments, that is “severe” within the meaning of the Act, meaning that it

imposes significant restrictions on the claimant’s ability to perform basic work activities. Id. §

404.1520(c). If the claimant does not have a severe impairment or combination of impairments

meeting the durational requirements, the analysis concludes with a finding of “not disabled.” If

the claimant does, the ALJ continues to step three.

At step three, the ALJ examines whether a claimant’s impairment meets or medically

equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the

“Listings”). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a

Listing and meets the durational requirement, the claimant is disabled. Id. § 404.1509. If not, the

ALJ determines the claimant’s residual functional capacity, which is the ability to perform

physical or mental work activities on a sustained basis notwithstanding limitations for the

collective impairments. See id. § 404.1520(e)-(f).

The ALJ then proceeds to step four and determines whether the claimant’s RFC permits

him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).

If the claimant can perform such requirements, then he or she is not disabled. Id. If he or she

cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the

Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the

Commissioner must present evidence to demonstrate that the claimant “retains a residual

functional capacity to perform alternative substantial gainful work which exists in the national

economy” in light of his or her age, education, and work experience. See Rosa v. Callahan, 168

F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

ADMINISTRATIVE LAW JUDGE’S FINDINGS

The ALJ analyzed Plaintiff’s claim for benefits under the process described above and

made the following findings in her April 8, 2020 decision:

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

June 30, 2020.

2. The claimant has not engaged in substantial gainful activity since July 6, 2017, the alleged

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

3. The claimant has the following severe impairments: attention-deficit hyperactivity

disorder, a personality disorder, an affective disorder, and an anxiety disorder (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 a full range of work at all

exertional levels but with the following nonexertional limitations: she is limited to object

oriented tasks, with only occasional work related interactions with co-workers,

supervisors and the general public.

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

7. The claimant was born on June 3, 1997 and was 20 years old, which is defined as a

younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and

416.963).

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

(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 6, 2017, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. 28-38.

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

and disability insurance benefits protectively filed on July 11, 2018, the claimant is not disabled

under sections 216(i) and 223(d) of the Social Security Act. Tr. 38. The ALJ also determined that

based on the application for supplemental security benefits protectively filed on July 11, 2018,

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

ANALYSIS

Plaintiff asserts two points of error, both of which argue that the ALJ’s consideration of

the mental opinion evidence was not supported by substantial evidence.1 See ECF No. 8-1 at 1,

14-30. First, Plaintiff challenges the ALJ’s finding regarding the September 2018 opinion of

psychiatric consultative examiner Stephen Farmer, Ph.D. (“Dr. Farmer”). See id. at 14-18.

According to Plaintiff, although theALJ found the opinion “generally persuasive,” her conclusion

was “internally inconsistent,” and she failed to explain why she failed to incorporate the moderate

limitations in the ability to regulate emotions, control behavior, and maintain well-being opined

by Dr. Farmer. See id. Next, Plaintiff argues that the ALJ improperly rejected the February 2020

opinion of treating psychiatric nurse practitioner Adrienne Roy, NP (“Ms. Roy”). See id. at 1,

18-29.

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

supported by substantial evidence, including multiple medical opinions, Plaintiff’s mental health

treatment history showing that she successfully managed her symptoms through largely

conservative measures, and Plaintiff’s wide range of activities. See ECF No. 11-1 at 14-23.

1 The Court notes that Plaintiff does not dispute the ALJ’s findings related to her physical impairments. See

generally ECF No. 8-1. Accordingly, the Court declines to address the ALJ’s physical RFC finding in this opinion.

See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (issues not sufficiently argued in the briefs are considered

waived and normally will not be addressed on appeal); Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001) (“It

is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.”).

Specifically, with regard to Dr. Farmer’s opinion, the Commissione argues that Dr. Farmer’s

assessment of moderate limitations in regulating emotions, controlling behavior, and maintaining

well-being is not inconsistent with the RFC for simple, unskilled, work involving limited social

interaction, such as the ALJ determined here.. See id. at 16-18. Further, argues the Commissioner,

the ALJ properly considered and discounted the February 2020 opinion of Ms. Roy because it

was unsupported by her own treatment notes and inconsistent with recent therapy progress notes

and Plaintiff’s reported activities of daily living. See id. at 23-28.

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’s RFC finding was

supported by substantial evidence, including the opinions of two psychiatric consultative

examiners and the findings of a state agency psychological consultant, along with Plaintiff’s

overall conservative course of treatment, largely normal mental status findings, and wide range

of daily activities. Furthermore, the ALJ adequately considered Ms. Roy’s opinion and

reasonably found it unpersuasive, as it was unsupported by her own treatment notes and

inconsistent with the evidence in the record overall, including the other medical opinions,

Plaintiff’s largely normal mental status findings and conservative treatment history, and her wide

array of daily activities. Accordingly, the Court finds no error.

Plaintiff alleges limitations related to mental health symptoms, including depression,

anxiety, feeling overwhelmed, difficulty concentrating, poor memory, and suicidal thoughts. The

treatment records show that Plaintiff received individual therapy and medication management

for her mental health impairments throughout the relevant period. On July 13, 2017, Plaintiff

attended a psychotherapy intake session with Sarah Rowland, Ph.D. (“Dr. Rowland”), at WNY

Psychotherapy Services (“WNY”). Tr. 420. Dr. Rowland noted that Plaintiff appeared

disorganized, anxious, and depressed with rapid speech. Id. On August 1, 2017, Plaintiff reported

worsening symptoms, and in September 2017, Dr. Rowland discussed the need for medication

management through a psychiatrist. Tr. 420.

On September 26, 2017, Plaintiff presented for an initial psychiatric evaluation of anxiety

and depression and for medication management with Jeanne Salada-Conroy, APRN-BC (“Ms.

Salada-Conroy”), at S.P.A., LLP, upon referral from Dr. Rowland. Tr. 356-58. Plaintiff stated

that she “can’t hold a job” and was applying for SSI. Id. She reported “dissociations” and history

of cutting and violence. Id. She also reported anxiety, depression, irritability, panic attacks, and

excessive worry, and she was having difficulty falling and staying asleep. Id. On examination,

Plaintiff displayed a depressed and anxious mood but was cooperative and appeared healthy,

well-developed, and appropriately dressed. Tr. 357. She showed decreased impulse control but

no suicidality, and she was alert and oriented with good eye contact, fair attention and

concentration, and intact memory, judgment, and insight. Id. Ms. Conroy-Salada diagnosed

bipolar II disorder, attention-deficit disorder, generalized anxiety disorder, and borderline

personality disorder. (Tr. 357) and prescribed Aripiprazole and Alprazolam. (Tr. 358). Plaintiff’s

mental status examinations were unchanged at visits on November 15, 2017, January 24, 2018,

and March 7, 2018. See Tr. 360, 363, 367.

During an October 2017 session with Dr. Rowland, Plaintiff reported she was “doing

better” after she began taking Abilify and discussed her interest in cosplay,2 friendships, and her

support system. Tr. 420. It was noted that Plaintiff’s other medications included

Abilify/Aripiprazole, Xanax/Alprazolam, Adderall, and Trazadone. Id.

On November 6, 2017, Plaintiff presented to Sheridan Pediatrics, P.C. for an annual

physical. Tr. 345. She stated she was not working due to due to anxiety and panic attacks. Id. She

reported that Abilify helped, but she was still having visual “disassociations” that interfered with

driving if she was going a long distance. Id.

On November 28, 2017, Plaintiff reported having an “anger fit” with her sister and

kicking a trash can. Tr. 420. On December 5, 2017, she claimed to be psychic and reported seeing

things before they happened. Id.

Plaintiff treated with Ms. Conroy again on January 24, 2018. Tr. 362. Plaintiff appeared

anxious and sad; her mood was anxious and depressed; she had fair attention and concentration,

intact memory, insight, and judgment; and decreased impulse control. Tr. 363. Her diagnoses and

medications were unchanged. Tr. 364.

In March 2018, Plaintiff reported to Dr. Rowland that she had been in a “bad car

accident,” but there were no injuries. Tr. 421. She also reported anxiety related to the accident

and worsening depression and noted that Lexapro was “helping with anger.” Id. She stated she

spent most of her day sleeping, watching television, and playing video games. Id. Plaintiff

attended additional sessions with Dr. Rowland on April 17, 2018, May 1, 2018, May 29, 2018,

and June 12, 2018. Tr. 422. In May and June 2018, she reported being upset about a recent break-

2 “Cosplay” is the activity or practice of dressing up as a character from a work of fiction, such as a comic book,

video game, or television show. MERRIAM-WEBSTER DICTIONARY, https://www.merriam-

webster.com/dictionary/ cosplay (last visited Jan. 20, 2024).

up and tired and stressed from moving to a new apartment. Tr. 422. On July 27, 2018, Dr.

Rowland noted that Plaintiff had “been inconsistent with her appointments, leaving early,

canceling, and no showing,” and there had been no contact since June 12, 2018, when she left

her appointment early. Tr. 422.

On March 26, 2018, consultative examiner Susan Santarpia, Ph.D. (“Dr. Santarpia”),

conducted a psychiatric evaluation. Tr. 406-10. Upon examination, Plaintiff was cooperative and

responsive to questions, with adequate manner of relating and overall presentation. Tr. 407. She

was well-groomed and casually dressed, with appropriate eye contact, fluent speech, clear voice,

and adequate expressive and receptive language. Tr. 407. Her mood was neutral; her affect was

full range; speech and thought content were appropriate; and she was fully oriented with a clear

sensorium and normal motor activity. Tr. 408. She had average cognition, fair insight and

judgment, and coherent and goal-directed thought processes. Tr. 407-08. Her attention,

concentration, and memory were intact. Tr. 408. She reported dressing, bathing, grooming,

cleaning, managing her money, socializing with friends and family, playing video games, using

a computer, watching television, reading, doing art, using her cellphone, and going on social

media. Tr. 408. She denied any suicidal ideation or plan. Tr. 407. Dr. Santarpia diagnosed

attention deficit hyperactivity disorder, generalized anxiety disorder, and bipolar II disorder. Tr.

409. She opined that Plaintiff had mild impairments in interacting adequately with supervisors,

coworkers, and the public and in regulating emotions, controlling behavior, and maintaining

well-being. Id. She also opined that Plaintiff’s psychiatric problems were not significant enough

to interfere with her ability to function daily. Id.

On August 2, 2018, Plaintiff began mental health treatment at Horizon Corporations

(“Horizon”). Tr. 468. She was worried about being able to return to school/work; she wanted to

return to school; gain her independence; and learn to control anxiety attacks and anger. Id.

Plaintiff reported symptoms consistent with major depressive order. Tr. 469. She stated that she

was compliant with her medication. Tr. 471. She also reported her history of self-injuring

behavior (“SIB”), including cutting and burning, and a previous suicide attempt. Tr. 472. She

stated she engaged in SIB “periodically,” usually as a “one-time thing” after “an intense argument

or something.” Id. She stated she was afraid to use a knife, so she used tweezers instead to “make

a deep scrape.” Id. Mental status examination showed she was well groomed with normal speech,

perception, and activity; cooperative and friendly attitude; euthymic mood and affect; relaxed

posture; full orientation;intact memory, attention and concentration; appropriate thought content;

logical and goal-directed thought process; and fair eye contact, insight, and judgment. Tr. 478-

79.

Dr. Farmer conducted a psychiatric consultative examination on September 4, 2018. Tr.

424-27. Upon examination, Plaintiff was cooperative with adequate social skills and manner of

relating. Tr. 425. Her mood was mildly anxious, but her affect was of full range and appropriate

in speech and thought content, and she had fair grooming, casual dress, and normal motor

behavior. Tr. 425. She had appropriate eye contact; fluent and clear speech; adequate expressive

and receptive language skills; intact attention, concentration, and memory; fair insight and

judgment; average cognitive functioning; and coherent and goal-directed thought processes. Tr.

425-26. Plaintiff reported dressing, bathing, grooming, cooking, cleaning, doing laundry,

shopping, managing money, socializing with friends, and making costumes. Tr. 426. She

reported no suicidal ideation in the past thirty days. Tr. 424. In Dr. Farmer’s opinion, Plaintiff

had moderate limitations in interacting adequately with supervisors, coworkers, and the public,

amd regulating emotions, controlling behavior, and maintaining well-being. Tr. 426-27. Dr.

Farmer opined that Plaintiff’s psychiatric problems were not significant enough to interfere with

her ability to function on a daily basis. Tr. 427.

On September 11, 2018, state agency psychological consultant T. Bruni, Ph.D. (“Dr.

Bruni”), reviewed the then-available evidence of record and concluded that Plaintiff could do

low-contact work and had moderate limitations in her ability to interact appropriately with the

general public; ask simple questions or request assistance; accept instructions and respond

appropriately to criticism from supervisors; respond appropriately to changes in the work setting;

and travel in unfamiliar places or use public transportation. Tr. 80-82, 92-94.

On September 25, October 9, and October 16, 2018, Plaintiff attended individual therapy

with Rachel Wroblewski, LMSW (“Ms. Wroblewski”), at Horizon. Tr. 612-23. On October 9,

2018 and October 16, 2018, she displayed a euthymic mood and affect. Tr. 617, 621. On October

29, 2018, Plaintiff treated with Ms. Roy at Horizon. Tr. 499-504. Ms. Roy noted that Plaintiff

had been referred to Horizon due to a change in insurance coverage. Tr. 501. Plaintiff’s mood

was depressed and anxious with congruent affect. Tr. 499. She reported feeling sluggish and

unmotivated; she was eating and sleeping too much; and she was “dissociating” at least once per

week. Tr. 501. She stated that “meds are mostly helpful” but Lexapro was not working as well

as in the past, when she had felt more motivated and energized. Id. She also stated that Ability

helped with the dissociation. Id. On mental status examination, Plaintiff showed a depressed

mood and affect, but otherwise unremarkable mental status examination findings, and she had

good rapport with Ms. Roy. Tr. 499-500. Plaintiff’s Lexapro was increased to address her

depressive symptoms, and she was continued on Abilify and Trazodone. Tr. 503.

Plaintiff had therapy visits with Ms. Wroblewski on November 13, 2018 and December

11, 2018. Tr. 624-27, 628-32. Plaintiff showed a euthymic mood and affect during both visits

and reported self-consciousness in social situations and excessive worry. Tr. 626, 630. In

December 2018, she reported difficulty sleeping over the past two weeks and was taking two

Trazodone instead of only one. Tr. 630. On January 15, 2019, Plaintiff showed euthymic mood

and affect and was alert and oriented; she also reported self-consciousness in social situations

and excessive worry. Tr. 635. On May 7, 2019 and June 11, 2019, Plaintiff’s, mood and affect

were euthymic and she reported an overall stable mood, albeit with some irritability. Tr. 645,

650.

Plaintiff was seen by Ms. Roy on January 10, 2019 for medication management. Tr. 505-

12. She showed dysphoric mood and affect but otherwise had unremarkable mental status

examination findings. Tr. 506-07. Plaintiff stated she needed a higher dose of Trazadone to help

with sleep. Tr. 508. She also stated that her episodes of “dissociating” had decreased from “3-4

times per week” to only once a week.” Id. Ms. Roy noted that Plaintiff’s “dissociative” episodes

had never been “neurologically checked.” Tr. 509. On March 11, 2019, Plaintiff’s, mental status

examination was unremarkable. Tr. 516-17. Her examination findings were unchanged on April

8, 2019. Tr. 524-25. However, Plaintiff complained that she had chest pains during anxiety

episodes, and Ms. Roy ordered an EKG. Tr. 534.

On July 15, 2019, Plaintiff was ten minutes late to her appointment with Ms. Roy and

was “not happy” about having to wait to be seen. Tr. 534. She had not had the EKG and blamed

her mother for not making the appointment. Id. Although Plaintiff minimized the chest pains she

had reported at the previous appointment, Ms. Roy still wanted a baseline EKG. Id. On

examination, Plaintiff showed irritable mood and affect, impaired attention and concentration,

disorganized thought content, circumstantial thought process, and restless but cooperative mood.

Tr. 532-33. She otherwise had good eye contact, relaxed posture, normal speech and activity, full

orientation, and fair insight and judgment. Id. Ms. Roy noted that Plaintiff was “very talkative,

negative and irritable though not rude.” Tr. 534. Plaintiff felt that Cymbalta was “making her

angry,” and Ms. Roy discussed adding a different mood stabilizer as Tr. 534.

The next day, on July 16, 2019, at a therapy visit with Ms. Wroblewski, Plaintiff’s mood

and affect were euthymic, and she reported an overall stable mood, less panic attacks, and

improved anxiety. Tr. 655. On August 19, 2019, Plaintiff reported to Ms. Roy that her mood was

more evened out, and her mental status examination was unremarkable. Tr. 540-42. During a

visit with Ms. Wroblewski on September 9, 2019, Plaintiff reported an increase in her symptoms

of depression and anxiety, and felt she needed to be hospitalized due to her increased symptoms,

suicidal thoughts, and concerns about her medications. Tr. 665.

On September 10, 2019, Plaintiff was voluntarily admitted to Brylin Hospital (“Brylin”)

after reporting suicidal ideation and attempting to take pills. Tr. 452-67. Upon examination, she

was somewhat angry and intermittently tearful, but she was alert and maintained eye contact and

had intact cognitive function, average intelligence, and fair insight and judgment. Tr. 454, 458.

Plaintiff was “able to give a coherent and clear history” but “struggle[d] with details pertaining

to her previous psychotropic medication trials.” Tr. 454, 458. It was noted that she was able to

express her needs to actively seek support, and she was discharged in stable condition on

September 17, 2019. Tr. 455.

On September 19, 2019, a few days after her discharge from Brylin, Plaintiff showed

euthymic mood and normal affect. Tr. 670. On September 30, 2019, Plaintiff’s mental status

examination was unremarkable. Tr. 549-50. Ms. Roy noted that Plaintiff was feeling better after

her hospitalization earlier that month, which had followed an argument with her mother. Tr. 551.

Plaintiff denied any suicidal thoughts; her medication was adjusted at the hospital. Id.At follow-

up appointments in October and November 2019, Plaintiff’s mood was neutral, and her affect

was within normal limits. Tr. 675, 681, 686. On February 10, 2020, Plaintiff showed mildly

anxious mood and affect, and she reported that her mood was up and down since her last

appointment. Tr. 692.

On February 24, 2020, Ms. Roy completed a Mental Impairment Questionnaire. Tr. 572-

77. Ms. Roy diagnosed Plaintiff with bipolar II disorder, generalized anxiety disorder, and

attention deficit hyperactivity disorder. Tr. 572. She noted that Plaintiff reported that medications

helped her manage her symptoms, but she was still having “breakthrough anxiety/panic triggered

by external stressors.” Id. Ms. Roy opined that Plaintiff was unable to meet competitive standards

in the following mental abilities and aptitudes needed to do unskilled work: maintain regular

attendance and be punctual within customary, usually strict tolerances; complete a normal

workday and workweek without interruptions from psychologically based symptoms; perform at

a consistent pace without an unreasonable number and length of rest periods; and deal with

normal work stress. Tr. 574.

Ms. Roy opined that Plaintiff was seriously limited in the ability to set realistic goals or

make plans independently of others, deal with stress of semi-skilled or skilled work; travel in

unfamiliar places; and use public transportation. Tr. 575. She further opined that Plaintiff had

moderate difficulties in maintaining social functioning, marked difficulties in maintaining

concentration, persistence, or pace, and would have one or two episodes of decompensation

within a twelve-month period, each of at least two weeks duration. Tr. 576. Finally, Ms. Roy

opined that Plaintiff would be off-task 25% or more of the workday and would be absent more

than four days per month because of her impairments. Tr. 576-77.

As noted above, Plaintiff argues that the ALJ’s mental RFC finding was not supported by

substantial evidence because the ALJ erred in her consideration of the opinion evidence. See

ECF No. 8-1 at 13-30. 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, 697 F.3d at 151

(“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 her application on July 11, 2018, 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).

The ALJ found that Plaintiff’s mental impairments, while limiting, did not preclude the

performance of work consisting of object-oriented tasks requiring only occasional work-related

interactions with co-workers, supervisors, and the public. Tr. 32-33. Contrary to Plaintiff’s

arguments, the ALJ’s decision indicates that she relied on multiple evidentiary sources, including

the opinions of Drs. Santarpia and Farmer, the prior administrative medical findings of state

agency psychological consultant Dr. Bruni, Plaintiff’s overall conservative course of treatment

and largely normal mental status findings, and her wide range of daily activities, to make an RFC

finding that reasonably accounted for Plaintiff’s credible limitations as supported by the record.

Tr. 32-36. See 20 C.F.R. §§ 404.1527, 416.927.

First, the ALJ observed that, upon examination by Dr. Santarpia in March 2018, Plaintiff

was cooperative and responsive to questions, with adequate manner of relating and overall

presentation. Tr. 34, 407. Her mood was neutral; her affect was of full range and appropriate in

speech and thought content; and she was fully oriented with a clear sensorium and normal motor

behavior. Tr. 407-08. As the ALJ noted, Plaintiff was well-groomed and casually dressed, with

appropriate eye contact, fluent speech, clear voice, and adequate expressive and receptive

language. Tr. 34, 407. She had average cognition; fair insight and judgment; coherent and goal-

directed thought processes; and her attention, concentration, and memory were intact. Tr. 34-35,

407-08. As the ALJ also noted, Plaintiff reported performing a wide array of activities, including

dressing, bathing, grooming, cleaning, managing her money, socializing with friends and family,

playing video games, using a computer, watching television, reading, doing art, using her

cellphone, and being on social media. Tr. 35, 408.

The ALJ next observed that upon examination by Dr. Farmer in September 2018, Plaintiff

again was cooperative with adequate social skills and manner of relating. Tr. 35, 425. Her mood

was mildly anxious, but her affect was of full range and appropriate in speech and thought

content, and she had fair grooming, casual dress, and normal motor behavior. Tr. 425. As the

ALJ noted, Plaintiff had appropriate eye contact, fluent and clear speech, and adequate expressive

and receptive language skills. Tr. 35, 425. She had intact attention, concentration, and memory,

fair insight and judgment, average cognitive functioning, and coherent and goal directed thought

processes. Tr. 35, citing Tr. 425-26. The ALJ also noted that Plaintiff again reported performing

a wide variety of activities, including dressing, bathing, grooming, cooking, cleaning, doing

laundry, shopping, managing money, socializing with friends, and making costumes. Tr. 35, 426.

In Dr. Santarpia’s opinion, Plaintiff had a mild impairment in interacting adequately with

supervisors, coworkers, and the public, regulating emotions, controlling behavior, and

maintaining well-being. Tr. 410. Dr. Santarpia opined that Plaintiff’s psychiatric problems were

not significant enough to interfere with her ability to function daily. Tr. 409. In Dr. Farmer’s

opinion, Plaintiff had moderate limitations in interacting adequately with supervisors, coworkers,

and the public, regulating emotions, controlling behavior, and maintaining well-being. Tr. 426-

27. Dr. Farmer further opined that Plaintiff’s psychiatric problems were not significant enough

to interfere with her ability to function on a daily basis. Tr. 427.

The ALJ explained that she found Dr. Santarpia and Dr. Farmer’s opinions “generally

persuasive” because they both supported their conclusions with objective mental status

examination findings, and their opinions were generally consistent with the medical evidence of

record, including Plaintiff’s daily activities. Tr. 35, 408, 420-21, 425-26, 659, 675. 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)).

Furthermore, contrary to Plaintiff’s argument (see ECF No. 8-1 at 15-17), Dr. Farmer’s

assessment of moderate limitations in regulating emotions, controlling behavior, and maintaining

well-being is consistent with the ALJ’s RFC finding for simple, unskilled, work involving limited

social interaction. Tr. 32-33. See, e.g., Susan B. v. Comm’r of Soc. Sec., 551 F. Supp. 3d 107, 117

n.3 (W.D.N.Y. 2021) (opinion of moderate limitations with regulating emotions, controlling

behavior and maintaining well-being was consistent with RFC for unskilled work involving

limited interaction with others); Holly M. v. Comm’r of Soc. Sec., 20-cv-6863-MWP, 2022 WL

2160236 (W.D.N.Y. June 15, 2022) (opinion of moderate limitations with regulating emotions,

controlling behavior, and maintaining well-being was not inconsistent with RFC for simple work

with no production rate pace work, occasional interaction with others, and being off-task five to

seven percent of the workday with one unscheduled absence per month); Barksdale v. Saul, No.

6:18-CV-6239, 2019 WL 3842358, *3-4 (W.D.N.Y. Aug. 15, 2019) (rejecting Plaintiff’s

argument that the ALJ “ignored” an opinion assessing moderate limitations in regulating

emotions, controlling behavior, and maintaining well-being, and finding such an opinion was not

inconsistent with the RFC for simple work with only occasional interaction with others). see also

Mayer v. Comm’r of Soc. Sec., No. 18-CV-0062, 2019 WL 2266795, at *5 (W.D.N.Y. May 28,

2019) (“The Second Circuit has repeatedly held that ‘moderate’ limitations do not preclude a

plaintiff’s ability to perform unskilled work.”) (collecting cases).

Plaintiff cites Jimmie E. v. Comm’r of Soc. Sec., No. 20-CV-0406-MJR, 2021 WL

2493337, at *5 (W.D.N.Y. June 18, 2021), for the proposition that courts in this district have

remanded where an ALJ found a claimant capable of “simple, unskilled work” but failed to

include a “moderate” limitation in regulating emotion, controlling behavior and maintaining

well-being. See ECF No. 8-1 at 18. However, that case is inapposite. In Jimmie E., the court

found that the RFC limiting plaintiff to simple, unskilled work was insufficient because it did not

explain how a doctor’s opined moderate-to-marked limitations in using reason and judgment to

make work-related decisions, sustaining concentration, and performing tasks at a consistent pace

impacted the plaintiff's ability to perform simple, unskilled work. See Jimmie E., 2021 WL

2493337, at *5. Here, Plaintiff argues that the RFC failed to account for Dr. Farmer’s opinion of

only moderate limitations in regulating emotions, controlling behavior, and maintaining well-

being. See ECF No. 8-1 at 17-18. As explained above, an opinion of moderate limitations with

regulating emotions, controlling behavior and maintaining well-being is not inconsistent with an

RFC for unskilled work involving limited interaction with others. Moreover, unlike the doctor in

Jimmie E., here, Dr. Farmer opined that Plaintiff’s psychiatric and cognitive problems were not

significant enough to interfere with her ability to function on a daily basis. Tr. 427.Thus,

Plaintiff’s reliance on Jimmie E. is misplaced.

The ALJ also considered and found persuasive the September 2018 prior administrative

medical findings of state agency psychological consultant Dr. Bruni. Tr. 35, 74-85, 86-97, 428-

30. Dr. Bruni reviewed the then-available evidence of record, including the findings and opinions

of Drs. Santarpia and Farmer, and similarly concluded that Plaintiff had no more than moderate

limitations in any area of mental functioning. Tr. 79-82, 91-94. As the ALJ explained, Dr. Bruni

provided extensive rationales to support his findings, citing specific evidence of record and

resolving inconsistencies in the record. Tr. 35. As the ALJ further explained, the specific

functional limitations and abilities that Dr. Bruni assessed were consistent with the mental status

examination findings. Tr. 35,. 351, 353, 357, 363, 367, 407-408, 455, 479, 499-500, 506-07, 516-

17, 524-25, 540-41, 549-50, 609, 612-94. Further, Dr. Bruni’s findings were consistent with

Plaintiff’s activities of daily living, including spending time with friends and her mother,

drawing, watching television, making crafts and cosplay costumes, playing video games, and

caring for her own personal needs. Tr. 35, 408, 420-21, 659, 675.

Contrary to Plaintiff’s argument (see ECF No. 8-1 at 14-18), the ALJ’s decision was not

“internally inconsistent” because she assigned the same level of persuasiveness opinions to both

Dr. Santarpia and Dr. Farmer’s opinions, as both opinions ultimately support the RFC. As

preciously explained, moderate limitations, such as those assessed by Drs. Bruni, Santarpia, and

Farmer, are consistent with the performance of the basic mental demands of unskilled work.

Here, the RFC finding already limited Plaintiff to unskilled work consisting of object-oriented

tasks with only occasional work-related interactions with coworkers, supervisors, and the public;

therefore, no greater limitations were required. See German v. Comm’r of Soc. Sec., No. 19-cv-

03328, 2020 WL 5899521, at *11 (S.D.N.Y. May 27, 2020) (moderate mental limitations did not

require a finding that the claimant was limited beyond unskilled work); see also Whipple v.

Astrue, 479 F. App’x 367, 370 (2d Cir. 2012) (assessment of mild to moderate limitations were

accounted for by RFC limitations to simple tasks in a low-stress environment); McIntyre v.

Colvin, 758 F.3d 146, 152 (2d Cir. 2014) (moderate limitations in social functioning and

concentration, persistence and pace consistent with an RFC for unskilled work); Zabala v. Astrue,

595 F.3d 402, 407-11 (moderate limitations in work related functioning consistent with the ability

to perform unskilled work, including carrying out simple instructions, dealing with work

changes, and responding to supervision).

Additionally, the ALJ did not rely solely on opinion evidence in assessing Plaintiff’s

RFC. See 20 C.F.R. §§ 404.1520(e), 416.920(e) (“we will assess the residual functional capacity

based on all the relevant medical and other evidence in your case record”); 20 C.F.R. §§

404.1545(a)(3), 416.945(a)(3) (explaining that the adjudicator will assess the RFC based on all

the relevant evidence in the case record); 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). Matta, 508 F. App’x at

56. Moreover, it is the responsibility of the ALJ to resolve conflicts in the evidence and to weigh

the evidence available to make an RFC finding that is consistent with the record. See Corbiere v.

Berryhill, 760 F. App’x 54, 57 (2d Cir. 2019) (holding that the ALJ properly resolved conflicts

in the medical evidence after considering the record in its entirety).

In addition to the consultative examination findings and opinions, the ALJ also discussed

records of Plaintiff’s individual therapy and medication management visits throughout the

relevant period. Tr. 33. As the ALJ pointed out, medication management notes from November

2017 through June 2018 showed some issues with compliance. Tr. 34, 352, 358, 364, 368, 385,

394, 403. In July 2018, Dr. Rowland also noted that Plaintiff “had been inconsistent with her

appointments, leaving early, cancelling, and no showing.” Tr. 34, 422., As the ALJ noted,

however, despite issues of noncompliance and Plaintiff’s subjective reports of symptoms and

psychological stressors, her objective mental status examinations remained largely normal,

including appropriate dress, good eye contact, full orientation, cooperative attitude, fair attention

and concentration, and intact memory, insight, and judgment. Tr. 34, 351, 357, 363, 367, 417-

22. The ALJ further noted that in August 2018, Plaintiff reported that she was compliant with

her medications, at which time she was well groomed, cooperative, and friendly, with fair eye

contact, euthymic mood, logical thought process, and fair attention, concentration, memory,

insight, and judgment. Tr. 34, 471, 479.

Additionally, noted the ALJ, Plaintiff’s mental status examinations were largely

unremarkable from October 2018 through August 2019 despite her ongoing subjective

complaints. Tr. 34, 499-500, 506-507, 516-17, 524-25, 540-41, 549-50. For instance, on October

29, 2018 and January 10, 2019, Plaintiff showed a depressed or dysphoric mood and affect, but

otherwise unremarkable mental status examination findings, and she had good rapport with her

clinician. Tr. 499-500, 506-507. Her exam findings were similarly unremarkable on March 11,

2019 and April 8, 2019, and she continued to have good rapport with her clinician. Tr. 516-17,

524-25. While Plaintiff showed some worsening symptoms on July 15, 2019, Ms. Roy noted that

Cymbalta may have contributed to Plaintiff’s angry mood and discussed adding a different mood

stabilizer. Tr. 532-34. Thereafter, on August 19, 2019, Plaintiff’s mental status examination was

unremarkable, and she reported her mood was more evened out. Tr. 540-42.

The ALJ also discussed Plaintiff’s inpatient treatment at Brylin for suicidal ideation. Tr.

34, 452-67, 551. Plaintiff asserts that the ALJ “downplayed Plaintiff’s suicide attempts” because

the ALJ stated that Plaintiff’s hospitalization was “related to suicidal ideation in the context of a

fight with her mother” and inaccurately stated that it was a “five-day admission.” See ECF No.

8-1 at 27. Contrary to Plaintiff’s assertion, however, the ALJ accurately cited treatment notes

showing that Plaintiff was hospitalized after an argument with her mother. See Tr. 34, 551.

Further, although the ALJ inaccurately described Plaintiff’s hospitalization as a “five-day

admission,” she accurately stated that it lasted from September 10, 2019 through September 17,

2019. Tr. 34-35. The ALJ further noted that, upon examination, Plaintiff was somewhat angry

and intermittently tearful, but she was able to provide a clear and coherent history, and she was

alert with appropriate eye contact. Tr. 34, 454. Although she struggled with details pertaining to

her previous psychotropic medication trials, Plaintiff had intact cognitive function, average

intelligence, and fair insight and judgment. Tr. 454. The ALJ also accurately noted that Plaintiff

was able to express her needs to actively to seek support, and she was discharged in stable

condition. Tr. 34, 455. Thus, contrary to Plaintiff’s assertion (see ECF No. 8-1 at 24, 26-27), the

ALJ fully considered the records of Plaintiff’s hospitalization in the context of her treatment

history.

The ALJ also noted that Plaintiff showed euthymic mood and normal affect days after her

discharge, and a mental status examination two weeks later was unremarkable. Tr. 34, 549-50,

670. At visits in October and November 2019, Plaintiff’s mood was neutral, and her affect was

within normal limits. Tr. 34, 675, 681, 686. As the ALJ observed, Plaintiff did not return to

treatment until February 10, 2020, at which time she reported that her mood was up and down,

and thinking about returning to work made her anxious. Tr. 34, 692.

Plaintiff also argues that her September 2019 hospitalization rendered the 2018 opinions

of Drs. Santarpia and Farmer “stale.” See ECF No. 8-1 at 24. However, later medical evidence

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

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

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

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

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

surgery).

As discussed above, Plaintiff’s mental status examination findings were generally

unremarkable throughout the relevant period despite issues with psychological stressors and

feelings of depression and anxiety and do not reflect such a significant deterioration in Plaintiff’s

mental health to render Dr. Santarpia and Dr. Farmer’s opinions stale. See Percy T. v. Comm’r

of Soc. Sec., No. 1:20-CV-829-DB, 2021 WL 2155112, at *4 (W.D.N.Y. May 27, 2021) (finding

that plaintiff’s generally unremarkable mental status examination findings throughout the

relevant period, despite his irritability, occasional poor judgment, and suicide attempt, did not

reflect such a significant deterioration in Plaintiff’s mental health so as to render three-year old

opinion of Plaintiff’s mental health treatment provider stale); Silvestri v. Comm’r of Soc. Sec.,

No. 18-CV-357 FPG, 2020 WL 746589, at *3 (W.D.N.Y. Feb. 14, 2020) (finding that while the

record was clear that Plaintiff was consistently depressed and anxious during the pendency of her

claim and was hospitalized for sixteen days following a suspected suicide attempt, there was

nothing to suggest that her condition deteriorated so precipitously as to render the state agency

medical consultant’s three-year-old opinion stale). In this case, the ALJ specifically noted that

medical evidence received after Dr. Bruni issued his September 2018 assessment, which also

considered Dr. Santarpia and Dr. Farmer’s opinions, did not reflect an intensity or frequency of

symptom exacerbation that would support further reducing Plaintiff’s mental RFC. Tr. 35, 610,

640, 645, 681.

Furthermore, the ALJ also properly considered Plaintiff’s daily activities, which were at

odds with her claims of disability and supported the mental RFC finding. Tr. 32-33. See 20 C.F.R.

§§ 404.1529(c)(3)(i), 416.929(c)(3)(i) (a claimant’s daily activities are a factor in assessing

subjective symptoms); 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 noted, despite Plaintiff’s complaints of disabling mental health symptoms and

limitations, she reported bathing and grooming herself, preparing simple meals, watching

television, drawing and making cosplay costumes and props when she felt motivated. Tr. 33, 49-

51, 277-90, 408, 426. She enjoyed making costumes and dressing up as different animé characters

with friends who were also involved in cosplay. Tr. 33, 49-51, 426. She reported that it took

about 24 hours to make one costume by hand, and although she did not like crowds, she would

attend two cosplay conventions a year with a friend and testified to a recent trip to Disney. Tr.

33, 50-51, 53-54. She also reported interacting with friends online through adventure games. Tr.

33, 51. See Krull v. Colvin, 669 F. App’x 31, 32 (2d Cir. 2016) (affirming the ALJ’s conclusion

that Krull was able to work notwithstanding mental health symptoms, where she continued to

engage in moderately complex tasks such as using computers, and other daily activities).

Based on the foregoing, substantial evidence supports the ALJ’s mental RFC finding, and

Plaintiff fails to show that any reasonable factfinder was compelled to assess greater restrictions

based on this record, as is required under the substantial evidence standard of review. While the

Commissioner need only show that the ALJ’s decision was supported by substantial evidence,

McIntyre, 758 F.3d at 150, Plaintiff maintains the burden of proving that her RFC was more

restricted than that found by the ALJ. See Poupore, 566 F.3d at 306. Plaintiff here has failed to

do so.

Plaintiff’s second point argues that the ALJ “improperly rejected” Ms. Roy’s February

2020 opinion. See ECF No. 8-1 at 18-29. Ms. Roy assessed significant limitations in multiple

areas of function and opined that Plaintiff would experience frequent absences and would be off

task 25% of the workday. Tr. 574-77. Contrary to Plaintiff’s argument, however, the ALJ

properly found Ms. Roy’s opinion unpersuasive, because it was unsupported by Ms. Roy’s own

treatment notes, which showed that Plaintiff was consistently cooperative and appropriately

dressed and groomed, with adequate eye contact and normal cognition, attention, concentration,

and memory. Tr. 36, 478-79, 499-500, 506-507, 516-17, 524-25, 532-33, 540-41, 549-50. The

ALJ further explained that the significant limitations in Ms. Roy’s opinion were inconsistent with

recent therapy progress notes, which often documented Plaintiff’s neutral mood, despite her

subjective complaints Tr. 36; see also Tr. 675, 681, 686. Ms. Roy’s opined limitations were also

not consistent with Plaintiff’s reported activities of daily living, as discussed above. Tr. 36, 49-

51, 420, 659, 675. Thus, the ALJ properly evaluated Ms. Roy’s opinion under the factors of

supportability and consistency, as required by the applicable regulations. See 20 C.F.R. §§

404.1520c(b)(2), 416.920c(b)(2) (providing that supportability and consistency are the two most

important factors in determining the persuasiveness of a medical source’s opinion and the ones

required to be articulated by the ALJ).

Although Plaintiff cites evidence that she interprets as supporting Ms. Roy’s opinion (see

ECF No. 8-1 at 21-24), 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); see also McIntyre, 758 F.3d at 149 (“If the

evidence is susceptible to more than one rational interpretation, the Commissioner’s conclusion

must be upheld.”). Thus, Plaintiff’s arguments are simply a request for a reweighing of the

evidence in her 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.”).

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

evidence of record, including multiple medical opinions, Plaintiff’s overall conservative course

of treatment, her largely normal mental status findings, and her wide range of daily activities,

and the ALJ’s findings are supported by substantial evidence. Accordingly, the Court finds no

error. When “there is substantial evidence to support either position, the determination is one to

be made by the fact-finder.” Davila-Marrero v. Apfel, 4 F. App’x 45, 46 (2d Cir. Feb. 15, 2001)

(citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)). 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.

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.,

’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. 8) is DENIED, and the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 11) is GRANTED. Plaintiff's

Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court will enter

judgment and close this case.

IT ISSO ORDERED.

Ve. J (uvvrt

DON D. BUSH

UNITED STATES MAGISTRATE JUDGE

30