Olkowski v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JOANNA O., §

§

Plaintiff, §

§

v. § Case # 1:21-cv-130-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM

§ DECISION AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Joanna O. (“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. 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. 14).

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

Procedure 12(c). See ECF Nos. 5, 6. Plaintiff also filed a reply brief. See ECF No. 7. For the

reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 5) is DENIED,

and the Commissioner’s motion for judgment on the pleadings (ECF No. 6) is GRANTED.

BACKGROUND

Plaintiff protectively filed an application for DIB on June 28, 2018, alleging disability

beginning September 21, 2017 (the disability onset date), due to: (1) Lyme Disease; (2) pituitary

disorder; (3) metabolic syndrome; (4) obesity; (5) obstructive sleep apnea syndrome:

(6) hypothalamic dysfunction; and (7) chronic nonalcoholic liver disease. Transcript (“Tr.”) 81,

210-11, 227. Plaintiff’s claim was denied initially on September 13, 2018, after which Plaintiff

requested an administrative hearing. Tr. 81. On March 16, 2020, Administrative Law Judge Martha

Bower (“the ALJ”) conducted a video hearing from Providence, Rhode Island. Plaintiff appeared

and testified from Buffalo, New York, and was represented by Carol 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 2, 2020, finding Plaintiff not disabled.

Tr. 78-96. On December 1, 2020, the Appeals Council denied Plaintiff’s request for further review.

Tr. 1-6. The ALJ’s April 2, 2020 decision thus became the “final decision” of the Commissioner

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

LEGAL STANDARD

I. District Court Review

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

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

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

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

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

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

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

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

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

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 2, 2020 decision:

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

December 31, 2022.

2. The claimant has not engaged in substantial gainful activity since September 21, 2017, the

alleged onset date (20 CFR 404.1571 et seq.).

3. The claimant has the following severe impairments: vertigo, morbid obesity, obstructive

sleep apnea, and asthma (20 CFR 404.1520(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 and 404.1526).

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

20 CFR 404.1567(c)1 except she can occasionally climb ramps and stairs, and occasionally

balance; she can frequently stoop, kneel, crouch, and crawl; she can never climb ropes,

ladders, or scaffolds. She must avoid concentrated exposure to pulmonary irritants and

cannot be exposed to hazards, such as unprotected heights or dangerous equipment.

6. The claimant is capable of performing past relevant work as an inventory clerk, a quality

assurance clerk, and as a program coordinator. This work does not require the performance

of work-related activities precluded by the claimant’s residual functional capacity (20 CFR

404.1565).

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

September 21, 2017, through the date of this decision (20 CFR 404.1520(f)).

Tr. 81-93.

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

and disability insurance benefits filed on June 28, 2018, the claimant is not disabled under sections

216(i) and 223(d) of the Social Security Act. Tr. 93.

1 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing

up to 25 pounds. If someone can do medium work, he or she is determined to also be able to do sedentary and light

work. 20 CFR 416.967(c).

ANALYSIS

Plaintiff asserts two points of error. Plaintiff first argues that the ALJ “rejected the only

useful medical opinions of record” and “improperly misread and evaluated Plaintiff’s diagnoses,

treating findings, and evidence.” See ECF No. 5-1 at 18-27. Plaintiff’s second point of error

contends that the ALJ “used selective reading and mischaracterized treatment” to improperly

diminish the credibility of Plaintiff’s testimony. See id. at 27-30. According to Plaintiff, these

errors resulted in an RFC finding that was not supported by substantial evidence. See id. at 18-30.

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

substantial evidence, and the ALJ properly considered the opinion evidence. See ECF No. 6-1 at

7-14. The Commissioner also argues that the ALJ properly analyzed Plaintiff’s subjective

complaints and reasonably concluded that they were inconsistent with the evidence in the record.

See id. at 14-15.

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, the Court finds that the ALJ’s conclusion that Plaintiff had the RFC to

perform medium work with additional limitations was supported by substantial evidence,

including opinion evidence, Plaintiff’s physical examination findings, her history of conservative

treatment, and her activities of daily living. Furthermore, the ALJ provided an extensive analysis

of Plaintiff’s statements regarding the intensity, persistence and limiting effects of her symptoms

and reasonably concluded that they were inconsistent with the evidence in the record. Accordingly,

the Court finds no error.

Plaintiff alleges that a combination of Lyme disease, as well as disorders of the

hypothalamus and pituitary gland, significantly limit her physical functioning. She also alleges

that these impairments cause constant pain, resulting in great limitation and/or the inability to lift,

stand, walk, sit, climb stairs, kneel, squat, and use her hands. Plaintiff further alleges that due to

these conditions, she is extremely fatigued and sleeps 16 hours per day. Tr. 101, 103-13, 226-41,

242-61, 301-03.

On November 17, 2017, Plaintiff presented to Deborah Dzielski, ANP (“Ms. Dzielski”),

for “diffuse pain secondary to Lyme disease.” Tr. 360-65. Plaintiff reported generalized pain on

the lower back and base of the neck, arms, and legs, with sudden onset in 2014. Tr. 360. Plaintiff

reported progressive symptoms, described as aching pain, cramping, numb, and tiring; she rated

her pain as 7/10 in severity and 10/10 at its worst. Id. She reported she had been seen by infectious

disease specialists and completed two rounds of antibiotics and later saw another specialist and

was treated with antibiotics for one year. Id. She reported she then saw two other specialists and

would be seeing a third the following week. Id. On physical examination, Ms. Dzielski noted

blood pressure of 142/80; neck tenderness of trapezius region; mild tenderness at lumbar

paraspinal area bilaterally; and 18/18 tender points of fibromyalgia. Tr. 362. The remainder of Ms.

Dzielski’s physical examination was essentially normal, and no diagnostic testing was conducted.

Tr. 361-62. Ms. Dzielski assessed Lyme disease, chronic pain syndrome, and polycystic ovarian

syndrome and indicated that Plaintiff met “the criteria for medical cannabis based on indication of

chronic pain.” Tr. 362.

On January 26, 2018, Plaintiff presented to Lixin Zhang, M.D. (“Dr. Zhang”), at DENT

Neurologic Institute (“DENT”), for a consultation regarding dizziness and weakness. Tr. 388-91.

Plaintiff reported episodes of dizzy spells starting in 2015 that had worsened since 2017, as well

as “anxiety issues” and stress. Tr. 388. Dr. Zhang assessed (1) recurrent vertigo; (2) migraine; and

(3) anxiety. Tr. 390. Dr. Zhang opined that “migraine-associated vertigo [was] very likely,” but

due to Plaintiff’s history of Lyme disease, he ordered an MRI of the brain and a VNG2 and

prescribed Lorazepam. Id.

Plaintiff returned to DENT for follow-up on March 28, 2018, and was seen by Alanna

Castaldo, RPA-C (“Ms. Castaldo”). Tr. 385-87. Ms. Castaldo noted that Plaintiff was stable since

her last visit. Tr. 385. She also noted that Plaintiff’s recent brain MRI showed “concern for possible

pseudotumor cerebri” and recommended an ophthalmology consult. Tr. 387. Plaintiff had declined

to undergo vestibular testing (VNG). Id. On May 14, 2018, Ms. Castaldo noted that Plaintiff “was

essentially stable, if not somewhat worse since her last visit. Tr. 382-85. Her recent eye

examination showed no evidence of papilledema or swelling. Tr. 384. Plaintiff again declined to

pursue vestibular testing; she also declined further medications. Id.

On August 15, 2018, consultative examiner Stephen Farmer, Psy.D. (“Dr. Farmer”),

conducted a psychiatric consultative evaluation. Tr. 556-600. Dr. Farmer found “mild” limitations

in interacting and adequately with supervisors and co-workers, and public; sustaining

concentration and performing at a consistent pace; sustaining an ordinary routine and regular

attendance at work, regulating emotions, controlling behavior, and maintaining wellbeing,

maintaining personal hygiene and appropriate attire; and “mild to moderate” sustaining

concentration and performing a task at consistent pace. Tr. 558-59. He stated that Plaintiff’s

2 VNG (videonystagmography) is a test that evaluates eye movements and looks for a specific type of eye movement

called nystagmus. Nystagmus happens when the eyes move uncontrollably up and down or side to side. VNG is used

to diagnose a disorder of the vestibular system (the balance system in your inner ear). It can also help find problems

with the nerves or parts of the brain that are affect the sense of balance. MedLine Plus, available at

https://medlineplus.gov/about/using/citation/ (last visited Feb. 8, 2024).

difficulties were caused by adjustment disorder with depressed and anxious mood and other

medical problems. Tr. 559.

On August 22, 2018, state agency consultant K. Lieber-Diaz, Psy.D. (“Dr. Lieber-Diaz”),

reviewed the medical evidence and completed a Psychiatric Review Technique (“PRT”)

assessment and found that Plaintiff’s mental impairments were non-severe. Tr. 127-29.

On September 1, 2018, Gilbert Jenouri, M.D. (“Dr. Jenouri”), conducted a consultative

internal medicine examination. Tr. 561-64. Plaintiff reported that she cooked three times per week,

cleaned twice a week, shopped once a week, and performed childcare daily. Tr. 561. Plaintiff was

5 foot nine inches tall and weighed 315 pounds. Tr. 562. Dr. Jenouri noted that Plaintiff was in no

acute distress; she had normal gait and stance; and she was able to rise from a chair and get on and

off the examination table without difficulty. Id. She walked on her heels and toes with difficulty;

her stance was normal; she could squat 50%; and she did not use an assistive device. Id. Dr. Jenouri

noted that Plaintiff had full spinal range of motion and full and/or almost full range of motion

throughout; deep tendon reflexes (“DTRs”) were physiologic and equal in the bilateral upper and

lower extremities; no sensory deficits were noted; and she had 5/5 strength in the bilateral upper

and lower extremities. Tr. 563. Hand and grip dexterity was intact and grip strength was 5/5. Id.

Dr. Jenouri diagnosed history of Lyme disease and joint pain, obstructive sleep apnea (“OSA”),

and asthma and assessed a “mild to moderate restriction walking and standing long periods,

bending, stairclimbing, lifting, and carrying [, and Plaintiff] should avoid smoke, dust, and other

known respiratory irritants.” Tr. 563-64.

On September 12, 2018, state agency consultant Gary Ehlert, M.D. (“Dr. Ehlert”),

completed a Physical Residual Functional Capacity Assessment and opined that Plaintiff was

capable of performing work at the medium exertional level with additional restrictions. Tr. 130-

32. Dr. Ehlert found that Plaintiff was capable of lifting and carrying 50 pounds occasionally, and

25 pounds frequently; she could stand and/or walk for about 6 hours in an 8-hour workday; and sit

about 6 hours in an 8-hour workday. Tr. 130-31. She had postural limitations and could

occasionally climb ramps/stairs, balance; and never climb ladders/ropes/scaffolds. Tr. 131. She

should also avoid climbing and balance due to her history of vertigo but was able to climb stairs

with hand railings occasionally. Id. Environmental limitations included avoid concentrated

exposure to fumes, dusts, gases, poor ventilation; avoid all hazards; and she should avoid all

exposure to hazards due to her history of vertigo. Tr. 132.

On September 21, 2018, Plaintiff was seen by infectious disease specialist Michael Hocko,

M.D. (“Dr. Hocko”), regarding her history of Lyme disease. Tr. 586-88. She reported she could

not walk upstairs at that time. Tr. 586. She also reported cystic acne since 2016 and fibromyalgia,

as well as a host of other complaints, including dizziness, forgetfulness, arthritis involving multiple

joints, and dermatitis, diarrhea, and ankle swelling. Id. Physical evaluation was essentially normal.

Dr. Hocko diagnosed eczema, for which he referred Plaintiff to a dermatologist, and ordered

testing for Lyme disease. Tr. 587. Testing was negative for Lyme disease. Tr. 580-85.

On November 23, 2018, Plaintiff returned to Dr. Hocko for follow-up. Tr. 672-73. Dr.

Hocko noted that testing for Lyme disease in April 2014 indicated that she had the disease at that

time. Tr. 672. However, he noted that current testing was “not indicative of Lyme disease.” Tr.

673. Dr. Hocko stated that he was unsure if Plaintiff’s current symptoms related to Lyme disease,

but he noted that “there is an entity called post Lyme disease syndrome in which the patient can

have residual symptoms of unsuccessfully treated Lyme disease.” Id. He offered to treat Plaintiff

for this, but she declined. Id.

Plaintiff returned to Ms. Dzielski on February 5, 2019, for follow-up of diffuse pain

secondary to Lyme disease. Tr. 593-94. Plaintiff reported aching pain and cramping. Tr, 593. Her

pain was aggravated by weather changes, climbing stairs, driving, lifting objects, looking

downward, looking side to side, rising from seated position, standing, and walking; and mildly

alleviated by rest; and she awakened with pain, and she reported decreased quality of life. Id. She

reported some pain relief with medical cannabis, but her card had expired in November 2018, and

she wanted to restart it. Tr. 593. Her physical examination was unremarkable except for tenderness

in the trapezius regions; mild tenderness in lumbar paraspinal region bilaterally; and 18/18

fibromyalgia tender points. Tr. 595. Ms. Dzielski noted that Plaintiff was “able to maintain her

ADLs, [and] able to have functional gains, improvements, and performance in regard to the

treatment plan.” Id. Ms. Dzielski completed Plaintiff’s registration for the New York State medical

cannabis program, and Plaintiff was to return in six months.

Plaintiff returned to Ms. Dzielski on August 5, 2019, with similar complaints and

examination findings. Tr. 597-600. Plaintiff was to continue using medical cannabis for her

chronic pain and return in six months, unless her symptoms worsened. Tr. 599.

On February 3, 2020, Ms. Dzielski completed a Physical Medical Source Statement. Tr.

674-78. Ms. Dzielski diagnosed Lyme disease and chronic pain syndrome. Tr. 674. Ms. Dzielski

reported that Plaintiff had a poor prognosis due to “all over body pain” that was uncontrolled. Id.

Ms. Dzielski also noted that Plaintiff reported “poor sleep” and dizziness, as well as joint swelling

and tenderness. Tr. 674-75. She also stated that Plaintiff’s impairments lasted or could be expected

to last at least twelve months; and emotional factors contributed to symptoms of anxiety. Tr. 675.

Ms. Dzielski opined that Plaintiff was limited to sitting for just 20 minutes, walking 20 minutes

and standing to just 10 minutes and was unable to sit, stand, or walk for more than two hours out

of an 8-hour workday due to muscle weakness, chronic fatigue, and pain. Tr. 676. Ms. Dzielski

opined that Plaintiff would be “rarely” capable of lifting any amount of weight. Id. Ms. Dzielski

further opined that Plaintiff would be off task more than 25 percent of a workday and/or be absent

more than four days per month due to physical symptoms if she did work. Tr. 677.

On February 21, 2020, Plaintiff was seen again by Dr. Hocko. Tr. 679-80. Plaintiff reported

she was “attempting to apply for social security disability” because “she has really not been able

to work.” Tr. 679. Plaintiff’s physical examination was essentially normal. Id. Dr. Hocko stated

he “was convinced that [Plaintiff has] a post Lyme disease syndrome.” Tr. 680. However, he stated

that he was uncomfortable filling out disability paperwork because he had not seen Plaintiff since

2018, and he felt “this paperwork would be better suited by PCP, rheumatologist, or outside

practitioner hired to evaluate her for degree of disability.” Id.

As noted above, Plaintiff argues that the ALJ’s RFC is not supported by substantial

evidence. 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). Plaintiff filed her application on June 28, 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 ALJ focuses on the

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

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

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

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

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

416.920c(a)-(c).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Finally, Congress granted the Commissioner exceptionally broad rulemaking authority

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

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

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

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

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

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

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

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

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

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

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

Campbell, 461 U.S. at 466).

Contrary to Plaintiff’s contentions, the ALJ in this case properly analyzed the opinion

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

evidence supports the ALJ’s RFC finding that Plaintiff could perform medium work with certain

limitations. Tr. 87.

In formulating Plaintiff’s RFC, the ALJ reasonably considered the opinion evidence and

prior administrative findings in accordance with the regulations. First, the ALJ considered the

findings of state agency examiner Dr. Ehlert. Tr. 90, 130-31. Dr. Ehlert assessed that Plaintiff

could occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or

walk 6 hours in an 8-hour workday, sit 6 hours in an 8-hour workday, climb stairs occasionally but

never climb ladders, occasionally balance, and frequently stoop, kneel, crouch, and crawl. Tr. 130-

31. The ALJ found Dr. Elhert‘s opinion persuasive, as it was consistent with the medical evidence

in the record, showing that Plaintiff had normal gait and minimal abnormalities. Tr. 90, 362, 379,

383, 386, 390, 403, 405, 407, 409, 411, 414, 431, 499, 525, 539, 552, 591, 595, 599, 610, 620,

633, 641, 648, 657, 664, 679.

Plaintiff takes issue with the fact that the ALJ found Dr. Elhert’s opinion more persuasive

that the opinions of other sources. See ECF No. 5-1 at 21. However, Dr. Elhert had the benefit of

reviewing the record, and as a state agency medical consultant was an expert in the Social Security

disability evaluation. See Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995) (citing Schisler v.

Sullivan, 3 F.3d 563, 567-68 (2d Cir. 1993)); 20 C.F.R. § 404.1513a(b)(1) (State agency medical

consultants are highly qualified and experts in Social Security disability evaluation). Additionally,

it is the role of the ALJ, and not Plaintiff, to reconcile the evidence. See Veino, 312 F.3d at 588

(“conflicts in the medical evidence are for the Commissioner to resolve”).

Plaintiff also asserts that the Dr. Elhert’s assessment was faulty because he was not aware

of Plaintiff’s Lyme disease or fibromyalgia. See ECF No. 5-1 at 21. Plaintiff is incorrect. First, as

the ALJ noted, Plaintiff tested negative for Lyme disease during the relevant period and declined

to pursue treatment for post-Lyme disease syndrome. Tr. 84, 90, 580, 673. Furthermore, Dr. Elhert

specifically noted that Plaintiff “alleg[ed] disability due to Lyme disease” (Tr. 132), and Lyme

disease was also mentioned in the examination report from Dr. Jenouri (Tr. 561), which Dr. Elhert

reviewed (see Tr. 129-30).

Regarding Plaintiff’s fibromyalgia, Plaintiff argues that not only did Dr. Elhert not consider

it, but the ALJ also failed to properly analyze it. See ECF No. 5-1 at 26. However, Plaintiff does

not identify any evidence to suggest greater functional limitations from fibromyalgia than the ALJ

already accounted for in her RFC finding. See Valentin v. Comm'r of Soc. Sec., 820 F. App’x 71,

713 (2d Cir. 2020) (“Valentin does not identify any evidence supporting a more limited RFC.”);

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.”). Additionally, despite finding tender points, the record does

not indicate a diagnosis of fibromyalgia. As SSR 12-2p makes clear, fibromyalgia is a diagnosis

of exclusion, such that one of the explicit criteria is that “[e]vidence that other disorders could

cause these repeated manifestations of symptoms, signs, or co-occurring conditions were

excluded.” SSR 12-2p; see also Kevin A. R. v. Kijakazi, No. 621CV0881DNHDEP, 2022 WL

18587763, at *7 (N.D.N.Y. Nov. 9, 2022), report and recommendation adopted sub nom. Kevin

R. v. Comm'r of Soc. Sec., No. 6:21-CV-881, 2023 WL 196049 (N.D.N.Y. Jan. 17, 2023)

Furthermore, even if the record had established a diagnosis of fibromyalgia, not every

person with a fibromyalgia diagnosis is totally disabled: “Mere diagnosis of fibromyalgia without

a finding as to the severity of symptoms and limitations does not mandate a finding of disability.”

Prince v. Astrue, 514 F. App’x 18, 20 (2d Cir. 2013) (brackets and citations omitted). Thus, even

if a claimant had a diagnosis of fibromyalgia, objective findings such as normal strength, sensation,

and range of motion could still indicate that the condition was not totally disabling. Id.

The ALJ also considered the opinion of consultative examiner Dr. Jenouri. Tr. 90, 561-64.

Dr. Jenouri opined that Plaintiff had “mild to moderate” restrictions walking and standing for long

periods, bending, climbing stairs, lifting, and carrying, and she should avoid smoke, dust, and other

known respiratory irritants. Tr. 563-64. The ALJ explained that she found Dr. Jenouri’s opinion

“not persuasive” because the opinion was nonspecific as to the lifting and/or walking restrictions,

and it was not supported by the examination notes. Tr. 90. For example, the ALJ noted that Dr.

Jenouri only documented mild abnormalities, and on examination, Plaintiff had normal stance and

full range of motion; she could rise from a chair and get on and off the examination table without

difficulty; and she did not use an assistive device. Tr. 88, 562. Dr. Jenouri also noted that Plaintiff

showed no abnormality in the thoracic spine and had full range of spinal motion. Tr. 88, 563. Deep

tendon reflexes were physiologic and equal in the bilateral upper and lower extremities; no sensory

deficits were noted; Plaintiff had full strength in the bilateral upper and lower extremities; and no

physical abnormalities were noted. Tr. 88, 90, 562-63. As the ALJ reasonably explained, “if

[Plaintiff] had limitations considered “moderate[,]” she would have expected Dr. Jenouri to

document more than minimal abnormalities during testing.” Tr. 90.

The ALJ also considered the opinion of Ms. Dzielski, who treated Plaintiff on November

17, 2017 (Tr. 360), then again in February 2019 (Tr. 593-94) and August 2019 (Tr. 597-600), and

provided a medical source statement in February 2020 (Tr. 674-78). Tr. 90-91. In her February

2020 statement, Ms. Dzielski indicated that Plaintiff had a diagnosis of Lyme disease and chronic

pain syndrome and opined that she could sit for 20 minutes at one time, stand for 10 minutes at

one time, sit/stand/walk less than two hours in an 8-hour workday, and would need 5-minute

unscheduled breaks every 20 minutes. Tr. 676. Plaintiff could rarely lift less than 10 pounds and

never more than that, and could never twist, stoop, crouch, or climb stairs or ladders. Tr. 676-77.

Ms. Dzielski also opined Plaintiff would be off task 25 percent or more of the workday. Tr. 677.

The ALJ explained why she was not persuaded by this opinion. Tr. 90. As the ALJ noted,

Ms. Dzielski made a diagnosis of Lyme disease without conducting any testing, and Plaintiff’s

physical examinations with Ms. Dzielski were essentially normal showing full strength in the

upper and lower extremities, normal gait, and normal range of motion. Tr. 84, 595, 599, 361-62.

The ALJ also noted that Plaintiff tested negative for Lyme Disease on November 9, 2018 (Tr. 580),

and although Dr. Hocko opined that Plaintiff likely had post Lyme disease syndrome, Plaintiff

declined to receive treatment (Tr. 673, 680). Tr. 84. Additionally, examination findings throughout

the record showed normal gait, full strength throughout, near full range of motion throughout,

intact reflexes, intact sensation and she was described as not distressed, comfortable, alert, and

oriented. Tr. 91, 362, 383, 386, 390, 397, 405, 407, 409, 411, 503, 561-64, 591, 595, 599, 610,

620, 641, 648, 657, 664. As the ALJ aptly noted, if Plaintiff was as limited as Ms. Dzielski opined,

she “would expect treatment records to document significant abnormalities on a consistent basis,

as well as more intensive treatment modalities.” Tr. 91. Such was not the case here.

In addition to relying on the longitudinal treatment record and the opinion evidence

discussed above in support of her physical RFC finding, the ALJ also properly relied on Plaintiff’s

conservative treatment history and her activities of daily living. See 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).

Contrary to Plaintiff’s assertion (see ECF No. 5-1 at 25), the ALJ appropriately considered

Plaintiff’s history of conservative treatment, which consisted of home exercise, a short period of

physical therapy, and medical marijuana. Tr. 89, 382, 542-45, 575, 589, 593, 597, 607, 618, 654.

it was indeed for the ALJ to Plaintiff’s conservative treatment. Pl. Mem. 25. See Penfield v. Colvin,

563 F. App’x 839, 840 (2d Cir. 2014) (finding that conservative treatment weighed against a

finding of disability).

The ALJ also properly considered Plaintiff’s activities of daily living. See 20 C.F.R. §

404.1529(c)(3)(i) (An ALJ may consider the nature of a claimant’s daily activities in evaluating

the consistency of allegations of disability with the record as a whole.); see also Ewing v. Comm’r

of Soc. Sec., No. 17-CV-68S, 2018 WL 6060484, at *5 (W.D.N.Y. Nov. 20, 2018) (“Indeed, the

Commissioner’s regulations expressly identify ‘daily activities’ as a factor the ALJ should

consider in evaluating the intensity and persistence of a claimant’s symptoms.”) (citing 20 C.F.R.

§ 416.929(c)(3)(i)). Here, the ALJ noted that Plaintiff’s activities included cooking three times a

week, cleaning twice a week, shopping once a week, and performing daily childcare. Tr. 88, 247,

558, 561. See 20 C.F.R. § 404.1529(c)(3)(i); SSR 16-3p; Lewis v. Colvin, 548 F. App’x 675, 677

(2d Cir. 2013) (ALJ’s RFC finding supported by substantial evidence including activities of daily

living); see also Poupore, 556 F.3d at 306 (ALJ may reject Plaintiff’s subjective allegations in

light of inconsistent evidence of daily functional ability, which in Poupore’s case, included

childcare). The ALJ reasonably found that these activities, as well as the rest of the foregoing

evidence, indicated that Plaintiff’s impairments were less limited than she had alleged. See Tr. 87-

91.

Furthermore, even a more restrictive RFC finding would not change the outcome of the

ALJ’s decision. While the RFC is for medium work, the ALJ also found that Plaintiff could

perform numerous jobs at the light and sedentary exertional levels, including her past relevant

work of quality assurance work (DOT No. 806.367-018, light work) and as a program coordinator

(DOT 189.167-030, sedentary work). Tr. 91. The ALJ found that Plaintiff could also perform

numerous other jobs in the national economy. Tr. 92-93. “The Commissioner need show only one

job existing in the national economy that [claimant] can perform.” Bavaro v. Astrue, 413 F. App’x

382, 384 (2d Cir. 2011) (summary order) (citing 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §

404.1566(b)). Thus, even if the Court were to find that the ALJ erred in not formulating a more

restrictive RFC, such further limitations would still be consistent with light and/or sedentary work

and would still lend themselves to a finding of not disabled.

With respect to Plaintiff’s alleged mental limitations, the ALJ considered the opinion of

consultative examiner Dr. Farmer and found it “partially persuasive.” Tr. 86. Dr. Farmer opined

that there was no evidence of limitation in understanding, remembering, and applying information

and only mild limitations with all other aspects of mental functioning, which is generally consistent

with a nonsevere impairment. Tr. 86, Tr. 558-59. However, Dr. Farmer also opined that Plaintiff

had “mild to moderate” limitations with sustaining concentration and performing tasks at a

consistent pace. Tr. 86, 558. As the ALJ explained, this portion of Dr. Farmer’s opinion was more

restrictive than supported by the longitudinal record and more restrictive than the opinion of state

agency consultant Dr. Lieber-Diaz, who opined that Plaintiff’s mental impairments were non-

severe. Tr. 86, 128. As the ALJ explained, she found Dr. Lieber-Diaz’s opinion persuasive because

it was supported by the medical evidence showing that Plaintiff consistently presented to medical

appointments and was described as in no apparent distress, healthy appearing, alert and oriented,

cooperative, and with normal mood and affect and no limitations in memory, concentration, or her

ability to communicate. Tr. 86, 307, 311, 323, 361-62, 369, 374, 383, 386, 390, 394, 396, 400,

403, 414, 417, 419, 414, 434, 437, 505, 508, 511, 518, 525, 527, 557, 567, 570, 575, 605, 610,

614, 620, 626, 641, 651, 657, 659, 664, 668.

Plaintiff does not point to any evidence suggesting greater limitations but inaccurately

argues that Dr. Farmer’s opinion of “mild to moderate limitation sustaining concentration

performing a task at a consistent pace” required the addition of mental limitations in the RFC. See

ECF No. 5-1 at 20. Even if the ALJ had been persuaded by Dr. Farmer’s opinion, the ability to

perform unskilled work such as the ALJ found here, is consistent with even moderate limitations.

See McIntyre v. Colvin, 758 F.3d 146, 150-51 (2d Cir. 2014), 758 F.3d (finding that moderate

limitation in maintaining concentration, persistence, or pace or in relating with others did not

preclude unskilled work); Snyder v. Saul, 840 F. App’x 641, 643 (2d Cir. 2021) (finding ALJ’s

RFC corresponded with opinions suggesting Snyder suffered, at most, moderate limitations in

mental work-related functioning); Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (affirming a

finding of unskilled work where the evidence showed moderate or less severe limitations in

plaintiff’s work-related functioning); Calabrese v. Astrue, 358 F. App'x 274, 277 (2d Cir. 2009)

(moderate limitations in different work-related areas were reasonably found to not preclude

unskilled work); 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). Accordingly,

the Court finds no error in the ALJ’s mental RFC finding.

Plaintiff’s second point of error contends that the ALJ improperly evaluated the credibility

of Plaintiff’s subjective complaints, as required by SSR 16-3p. See ECF No. 5-1 at 27-30.

Plaintiff’s argument is unpersuasive. As SSR 16-3p explains, “[t]he focus of the evaluation of an

individual’s symptoms should not be to determine whether he or she is a truthful person. Rather, our

adjudicators will focus on whether the evidence establishes . . . whether the intensity and persistence

of the symptoms limit the individual's ability to perform work-related activities.” SSR 16-3p, 2016 WL

1119029, at *10. Thus, the analysis is not a “credibility” determination, but rather an independent

finding based on the record at large. Id. at *1-2.

“It is the function of the [ALJ], not the reviewing courts, to resolve evidentiary conflicts

and to appraise the credibility of the witnesses, including the claimant.” Aponte v. Secretary, Dep’t

of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (citations and brackets omitted).

When subjective allegations are at issue (as opposed to objective evidence), the discretion and role

of the adjudicator as the factfinder becomes even more important to resolve the conflict. See

Richardson, 402 U.S. at 399 (“We have on the one hand, an absence of objective findings, an

expressed suspicion of only functional complaints, of malingering, and of the patient’s

unwillingness to do anything about remedying an unprovable situation. We have, on the other

hand, the claimant’s and his personal physician’s earnest pleas that significant and disabling

residuals from the mishap of September 1965 are indeed present . . . . The trier of fact has the duty

to resolve that conflict.”).

The ALJ in this case provided an extensive analysis of Plaintiff’s statements regarding the

intensity, persistence and limiting effects of her symptoms, and concluded that they were

inconsistent with the evidence in the record. Tr. 88. The ALJ considered that while Plaintiff alleged

that her physical symptoms prevented her from working, and she was extremely limited in her

ability to lift, stand, carry, and walk, or drive, this was not consistent with the evidence in the

record, as discussed above. Tr. 88, 103, 253-54. The ALJ considered Plaintiff’s mostly normal

physical examination findings, lack of mental health treatment, normal mental status examinations,

and activities of daily living. Tr. 86, 88. See Poupore, 566 F.3d at 307 (ALJ properly considered

the claimant’s activities in finding that his subjective complaints were insufficient to establish

disability). Considering all the evidence detailed above, the ALJ reasonably determined that

Plaintiff’s allegations regarding the intensity, persistence, and limiting effects of her symptoms

were not entirely consistent with the evidence in the record. Tr. 90-91. See 20 C.F.R. §

404.1529(c)(3); SSR 16-3p.

Moreover. as previously noted, Plaintiff bears the ultimate burden of proving that she was

more limited than the ALJ found. See Smith, 740 F. App’x at 726; 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.

As detailed above, substantial evidence in the record supports the ALJ’s RFC finding.

When “there is substantial evidence to support either position, the determination is one to be made

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

Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)). The substantial evidence standard is “a very

deferential standard of review – even more so than the ‘clearly erroneous’ standard,” and the

Commissioner’s findings of fact must be upheld unless “a reasonable factfinder would have to

conclude otherwise.” Brault, 683 F.3d at 448 (emphasis in 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).

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

entire record, including physical examination and other objective findings, Plaintiff’s testimony

about her symptoms, her reported daily activities, and the opinions of consultative and treating

medical sources, and the ALJ’s findings are supported by substantial evidence. Accordingly, the

Court finds no error.

CONCLUSION

Plaintiff's Motion for Judgment on the Pleadings (ECF No. 5) is DENIED, and the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 6) 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.

DON D. BUS

UNITED STATES MAGISTRATE JUDGE

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