Puckett v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

LINDA P., §

§

Plaintiff, §

§

v. § Case # 1:21-cv-625-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM

§ DECISION AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Linda 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 supplemental security income (“SSI”) under

Title XVI of the Act. See ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C.

§§ 405(g), 1383(c), and the parties consented to proceed before the undersigned in accordance

with a standing order (see ECF No. 12).

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

Procedure 12(c). See ECF Nos. 7, 8. Plaintiff also filed a reply brief. See ECF No. 9. For the

reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 7) is DENIED,

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

BACKGROUND

Plaintiff protectively filed an application for SSI on June 13, 2019, alleging disability

beginning May 24, 2018 (the disability onset date), due to psychotic disorder, depressive disorder,

generalized anxiety disorder, panic disorder, personality disorder, schizoaffective disorder (bipolar

type), cervical and lumbar degenerative disc disease, fibromyalgia, arthritis, and bilateral plantar

fasciitis and tendinitis. Transcript (“Tr.”) 12, 14, 89-90, 219. Plaintiff’s claim was denied initially

on October 10, 2019, and again on reconsideration on December 26, 2019, after which she

requested an administrative hearing. Tr. 12. On February 24, 2021, Administrative Law Judge

John Farrell (“the ALJ”) conducted a telephonic hearing,1 at which Plaintiff appeared and testified

and was represented by Kathryn Eastman, an attorney. Tr. 12. Edmond Calandra, an impartial

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

The ALJ issued an unfavorable decision on February 24, 2021, finding that Plaintiff was

not disabled. Tr. 9-28. On April 23, 2021, the Appeals Council denied Plaintiff’s request for further

review. Tr. 1-6. The ALJ’s February 24, 2021 decision thus became the “final decision” of the

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

LEGAL STANDARD

I. District Court Review

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

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

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

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

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

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

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

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

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

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

participants attended the hearing by telephone. Tr. 12.

II. The Sequential Evaluation Process

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

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

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

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

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

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

restrictions on the claimant’s ability to perform basic work activities. Id. § 404.1520(c). If the

claimant does not have a severe impairment or combination of impairments meeting the durational

requirements, the analysis concludes with a finding of “not disabled.” If the claimant does, the

ALJ continues to step three.

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

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

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

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

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

mental work activities on a sustained basis notwithstanding limitations for the collective

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

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

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

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

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

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

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

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

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

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

ADMINISTRATIVE LAW JUDGE’S FINDINGS

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

made the following findings in his February 24, 2021decision:

1. The claimant has not engaged in substantial gainful activity since June 13, 2019, the

application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairments: psychotic disorder, depressive

disorder, generalized anxiety disorder, panic disorder, personality disorder, schizoaffective

disorder (bipolar type), cervical and lumbar degenerative disc disease, fibromyalgia,

arthritis, and bilateral plantar fasciitis and tendinitis (20 CFR 416.920(c)).

3. The claimant does not have an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart

P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4. The claimant has the residual functional capacity to perform light work as defined in 20

CFR 416.967(b)2 except that she is limited to simple, routine tasks; she can have only

occasional interaction with the public, co-workers and supervisors; she must work in an

environment in which workplace changes are both infrequent and gradually introduced;

and she is unable to perform production-paced work.

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

6. The claimant was born on July 17, 1970 and was 48 years old, which is defined as a younger

individual age 18-49, on the date the application was filed. The claimant subsequently

changed age category to closely approaching advanced age (20 CFR 416.963).

7. The claimant has a limited education (20 CFR 416.964).

2 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing

up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal

of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg

controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the

ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or she

can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit

for long periods of time.” 20 C.F.R. § 404.1567(b).

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

work (20 CFR 416.968).

9. Considering the claimant’s age, education, work experience, and residual functional

capacity, there are jobs that exist in significant numbers in the national economy that the

claimant can perform (20 CFR 416.969 and 416.969(a)).

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

June 13, 2019, the date the application was filed (20 CFR 416.920(g)).

Tr. 12-23.

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

benefits protectively filed on June 13, 2019, the claimant is not disabled under section

1614(a)(3)(A) of the Social Security Act. Tr. 23.

ANALYSIS

Plaintiff asserts two points of error, both of which challenge the ALJ’s analysis of the

opinion evidence, as well as the RFC finding. See ECF No. 7-1 at 10-19. Plaintiff first argues that

the physical RFC was not supported by substantial evidence because (1) the ALJ improperly relied

on the opinions of non-examining physicians; (2) the ALJ created a gap in the record by rejecting

the only examining opinion of record related to Plaintiff’s physical limitations; and (3) the ALJ

failed to adequately consider the impact of Plaintiff’s foot impairments on her physical

capabilities. See id. at 10-15. Plaintiff next argues that the ALJ failed to incorporate all the mental

limitations assessed in the opinions of state agency reviewing psychologists T. Inman-Dundon,

Ph.D. (“Dr. Inman-Dundon), and J. May Ph.D. (“Dr. May”), opinions which the ALJ purported to

find persuasive. Id. at 15-19.

The Commissioner argues in response that the ALJ properly developed the record and well-

supported opinions from non-examining sources, such as here, may provide substantial evidence

supporting the RFC. See ECF No. 8-1 at 5-8. The Commissioner also argues that there was no gap

in the record, and the ALJ satisfied his burden to develop the record by holding the record open

for Plaintiff to submit evidence supporting her foot complaint, which she failed to do. See id. at

8-11. Finally, the Commissioner argues that the RFC properly reflects the mental work-related

limitations assessed by Dr. Inman-Dundon and Dr. May. See id. at 12-15.

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 of the record in this case, the Court finds that the ALJ’s analysis of the opinion

evidence, as well as his RFC finding are supported substantial evidence. Furthermore, the ALJ was

not required to base the RFC directly on any particular medical opinion, as Plaintiff argues. In

addition to the opinion evidence, the ALJ properly considered Plaintiff’s treatment history,

including that her mental health impairments were effectively treated with prescription medication

and counseling, as well as Plaintiff’s own reports and subjective allegations about her symptoms,

which the ALJ noted were not entirely consistent with the medical evidence. Because substantial

evidence supports the ALJ’s decision, the Court finds no error.

On December 12, 2018, Plaintiff consulted with podiatrist Angela Riznyk, D.P.M. (“Dr.

Riznyk”), in the office Peter Riznyk, D.P.M, L.L.C., complaining of bilateral foot pain. Tr. 354-

56. Dr. Riznyk assessed (among other things) bunions and PT (posterior tibialis) tendinitis and

treated Plaintiff with an injection. Tr. 356. During a follow-up visit on January 16, 2019, Dr.

Riznyk administered a second injection and recommended orthotics. Tr. 359-60. On May 16, 2019,

Plaintiff reported she was wearing her orthotics and her “feet have been feeling good.” Tr. 357.

Dr. Riznyk noted that Plaintiff’s tendonitis and plantar fasciitis had improved. Id.

On June 15, 2019, Plaintiff presented to Dr. Riznyk to discuss surgical treatment for her

right foot bunion. Tr. 363. Plaintiff reported that she had tried to wear wider shoes, but she

continued to have pain. Id. Dr. Riznyk advised Plaintiff that she would like to perform an Austin

bunionectomy with a possible Akin osteotomy, and after explaining the details of the surgery and

the possible complications, Plaintiff stated she would like to go forward with the surgery as soon

as possible. Id.

On September 24, 2019, Plaintiff presented to David Schaich, Psy.D. (“Dr. Schaich”), for

a consultative psychiatric evaluation. Tr. 525. Plaintiff reported that she was receiving outpatient

mental health treatment for depression and anxiety at Buffalo Psychiatric Center; she was seeing

her therapist twice per month and a psychiatrist once per month. Id. Upon mental status

examination, Dr. Schaich noted that Plaintiff was cooperative, had fair overall presentation, but

“was poorly related.” Tr. 526. He also noted that Plaintiff appeared older than her stated age; she

had slouched posture; and her motor behavior was lethargic. Id. Dr. Schaich further noted that

Plaintiff’s thought processes were “circumstantial with loose associations marked by delusions.”

Id. Plaintiff believed that she could read people’s minds and had ESP. Id. She had flat affect and

anxious mood; mildly impaired attention and concentration due to limited intellectual functioning;

and mildly impaired recent and remote memory skills. Tr. 526-27. Plaintiff’s cognitive functioning

appeared to be below average; her general fund of information was somewhat limited; and she had

poor insight and fair judgment. Tr. 527.

Dr. Schaich opined that Plaintiff had moderate limitations with respect to her ability to

concentrate, persist, or maintain pace and her ability to sustain an ordinary routine and maintain

attention. Tr. 527-28. He further opined that Plaintiff had “marked” limitations with respect to her

ability to interact with others, her ability to use reason and judgment in the workplace, and her

ability to regulate emotions, control behavior, and maintain well-being. Tr. 528. Finally, Dr.

Schaich concluded, that while the results of Plaintiff’s evaluation appeared to be consistent with

psychiatric problems, her symptoms did not appear to be significant enough to interfere with her

daily functioning. Id.

On September 24, 2019, Plaintiff presented to Hongbiao Liu, M.D. (“Dr. Liu “), for a

consultative internal medicine examination. Tr. 531-34. Plaintiff reported a history of arthritis and

degenerative changes in her back that had been present “for a couple of years.” Tr. 531. She also

reported whole-body joint pain, low back pain that radiated to both legs, and “[a]ssociated

numbness and tingling in her bilateral hands and toes occasionally.” Id. Plaintiff also reported she

“could walk one block.” Id. On physical examination, Dr. Liu observed a normal gait and stance;

Plaintiff could walk on her heels and toes with moderate difficulty because of low-back pain; she

used no assistive devices to ambulate or stand; needed no help changing for the exam or getting

on and off the exam table; and she was able to rise from a chair without difficulty; and had full

(5/5) strength in the lower extremities. Tr. 532. Straight leg raise testing was positive bilaterally in

the seated and supine positions. Tr. 533. Dr. Liu assessed “mild limitation for prolonged walking,

bending, kneeling, squatting, lifting, carrying, overhead reaching, prolonged sitting, standing, and

stair climbing.” Tr. 534.

On October 8, 2019, state agency psychologist Dr. Inman-Dundon reviewed Plaintiff’s

record as of that date and opined that Plaintiff had moderate limitations in the ability to understand

and remember detailed instructions; carry out detailed instructions; maintain attention and

concentration for extended periods; perform activities within a schedule; maintain regular

attendance; be punctual within customary tolerances; work in coordination with or in proximity to

others without being distracted by them; complete a normal workday and workweek without

interruptions from psychologically based symptoms and to perform at a consistent pace without

an unreasonable number and length of rest periods; interact appropriately with the general public;

accept instructions and respond appropriately to criticism from supervisors; get along with

coworkers or peers without distracting them or exhibiting behavioral extremes; maintain socially

appropriate behavior and adhere to basic standards of neatness and cleanliness; respond

appropriately to changes in a work setting; and set realistic goals or make plans independently of

others. Tr. 99-100.

On October 2, 2019, state agency physician H. Miller, M.D. (“Dr. Miller”), reviewed

Plaintiff’s record at the time and opined that Plaintiff could occasionally lift and/or carry 20 pounds

and frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an

eight-hour workday; and sit for about six hours in an eight-hour workday. Tr. 97.

On November 12, 2019, state agency psychologist Dr. May reviewed Plaintiff’s file at the

reconsideration stage and opined that Plaintiff had moderate limitations in the ability to understand

and remember detailed instructions; carry out detailed instructions; maintain attention and

concentration for extended periods; perform activities within a schedule; maintain regular

attendance; be punctual within customary tolerances; work in coordination with or in proximity to

others without being distracted by them; complete a normal workday and workweek without

interruptions from psychologically based symptoms and to perform at a consistent pace without

an unreasonable number and length of rest periods; interact appropriately with the general public;

accept instructions and respond appropriately to criticism from supervisors; get along with

coworkers or peers without distracting them or exhibiting behavioral extremes; maintain socially

appropriate behavior and adhere to basic standards of neatness and cleanliness; respond

appropriately to changes in a work setting; and set realistic goals or make plans independently of

others. Tr. 115-17.

On December 18, 2019, state agency physician J. Koenig, M.D. (“Dr. Koenig”), reviewed

Plaintiff’s file on reconsideration and opined that Plaintiff could occasionally lift and/or carry 20

pounds and frequently lift and/or carry 10 pounds. Tr. 113. Dr. Koenig opined that Plaintiff could

stand and/or walk for a total of about six hours in an eight-hour workday and sit for about six hours

in an eight-hour workday. Tr. 113-14.

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

substantial evidence because the ALJ did not properly analyze the opinion evidence. See ECF No.

7-1 at 10-19. 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); Social Security Ruling (“SSR”) 96-8p, 61 Fed. Reg. 34,474-01 (July 2,

1996). At the hearing level, the ALJ has the responsibility of assessing the claimant’s RFC. See 20

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

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

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

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

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

01166(LEK TWD), 2015 WL 7749318, at *3 (N.D.N.Y. 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 13, 2019, and therefore, the 2017 regulations are

applicable to her claim.

First, the new regulations change how ALJs consider medical opinions and prior

administrative findings. The new regulations no longer use the term “treating source” and no

longer make medical opinions from treating sources eligible for controlling weight. Rather, the

new regulations instruct that, for claims filed on or after March 27, 2017, an ALJ cannot “defer or

give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or

prior administrative medical findings(s), including those from [the claimant’s own] medical

sources.” 20 C.F.R. § 416.920c(a) (2017).

Second, instead of assigning weight to medical opinions, as was required under the prior

regulations, under the new rubric, the ALJ considers the persuasiveness of a medical opinion (or a

prior administrative medical finding). Id. The source of the opinion is not the most important factor

in evaluating its persuasive value. 20 C.F.R. § 416.920c(b)(2). Rather, the most important factors

are supportability and consistency. Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Finally, Congress granted the Commissioner exceptionally broad rulemaking authority

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

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

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

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

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

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

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

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

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

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

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

Campbell, 461 U.S. at 466).

Contrary to Plaintiff’s arguments, the ALJ properly considered the opinion evidence and

relied on other evidentiary sources to make an RFC finding that accounted for all of Plaintiff’s

credible limitations, as supported by the record. Tr. 18-22. See 20 C.F.R. §§ 404.1527, 416.927.

Furthermore, the ALJ did not assess Plaintiff’s RFC based on bare medical findings and his own lay

judgement simply because he did not rely on an opinion that mirrored the RFC, as Plaintiff argues.

Plaintiff’s argument wrongly presumes that RFCs are medical determinations, and thus, outside

the ALJ’s expertise. As explained above, however, RFC is an administrative finding, not a medical

one. Ultimately, an ALJ is tasked with weighing the evidence in the record and reaching an RFC

finding based on the record as a whole. See Tricarico v. Colvin, 681 F. App’x 98, 101 (2d Cir.

2017) (citing Matta, 508 F. App’x at 56). The regulations explicitly state that the issue of RFC is

“reserved to the Commissioner” because it is an “administrative finding that [is] dispositive of the

case.” 20 C.F.R. §§ 404.1527(d), 416.927(d). The ALJ “will assess your residual functional

capacity based on all of the relevant medical and other evidence,” not just medical opinions. 20

C.F.R. § 404.1545(a); 20 C.F.R. §§ 404.1513(a)(1), (4), 416.913(a)(1), (4) (explaining that

evidence that can be considered includes objective medical evidence, such as medical signs and

laboratory findings; as well as evidence from nonmedical sources, including the claimant, such as

from forms contained in the administrative record).

Furthermore, there is no requirement that the ALJ accept every limitation in a medical source’s

opinion. See Pellam v. Astrue, 508 F. App’x 87, 89 (2d Cir. 2013) (holding that the ALJ properly

declined to credit certain conclusions in a medical source’s opinion that were inconsistent with other

evidence of record). Moreover, there is no requirement that an ALJ’s RFC finding be based on a

medical opinion at all. See, e.g., Corbiere v. Berryhill, 760 F. App’x 54, 56-57 (2d Cir. 2019)

(summary order) (affirming ALJ’s physical RFC assessment based on objective medical

evidence); Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8-9 (2d Cir. 2017) (summary order)

(affirming where ALJ rejected sole medical opinion in record speaking to mental functioning).

Thus, contrary to Plaintiff’s argument, the ALJ was not required to craft an RFC that mirrored a

medical opinion and was not bound to adopt the entirety of any opinion. Schillo v. Kijakazi, 31

F.4th 64, 77-78 (2d Cir. Apr. 6, 2022) (affirming where the ALJ declined to adopt the limitations

set forth in three treating source opinions, and the RFC finding did not match any opinion in the

record).

Plaintiff also wrongly argues that: “It is well settled that opinions from non-examining

sources do not constitute substantial evidence on their own.” See ECF No. 7-1 at 11-12. While

Plaintiff misleadingly cites several cases where a court found that an ALJ improperly relied on a

non-examining source opinion, such findings were based on the facts of a particular record. None

of these cases stand for the broad proposition that opinions from non-examining sources

categorically do not constitute substantial evidence. Contrary to Plaintiff’s argument, the

Commissioner’s regulations permit the opinions of non-examining sources, such as state agency

consultants, to constitute substantial evidence in support of the ALJ’s decision. See Diaz v.

Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995) (State agency consultants are recognized experts

whose medical opinions can constitute substantial evidence); Schisler v. Sullivan, 3 F.3d 563, 568

(2d Cir. 1993) (the Commissioner’s regulations permit the opinions of non-examining sources to

constitute substantial evidence in support of the ALJ’s decision, and can even override a treating

source opinion); 652 F. App’x 25, 28 (2d Cir. 2016); Heagney O'Hara v. Commissioner, 646 F.

App’x 123, 126 (2d Cir. 2016) (the ALJ correctly gave great weight to the opinion of a medical

expert; even though he lacked a treating relationship because his opinion was consistent with the

objective medical evidence in the record.); Camille v. Colvin, 652 F. App’x 25, 28 4 (2d Cir. 2016)

(rejecting Camille’s contention that state agency psychological consultant’s opinion was “stale”

because it did not have the benefit of later-submitted treatment records and treating physician

evidence); Micheli v. Astrue, 501 F. App’x 26, 29 (2d Cir. 2012) (finding that opinion of state

agency physician provided substantial evidence to support ALJ’s RFC finding). Therefore,

Plaintiff’s argument is incorrect.

Plaintiff next challenges the ALJ’s consideration of the three opinions related to her

physical impairments—opinions from consultative examiner Dr. Liu (Tr. 531-34) and from state

agency reviewing physicians Dr. Miller and Dr. Koeing (Tr. 97, 113-14,). See ECF No. 7-1 at 11-

12. The ALJ found Dr. Liu’s opinion “not particularly persuasive.” Tr. 21. The ALJ noted that

Dr. Liu “[d]id not explain what precisely is meant by ‘mild’ [limitations]” and failed to provide

any further elaboration about Plaintiff’s exertional limits. Id. However, the ALJ found “persuasive

“the opinions from Dr. Miller and Dr. Koeing because they were “mutually consistent and fully

supported by the medical record, which demonstrates that [Plaintiff’s] physical symptoms have

been controlled with routine treatment.” Tr. 21. Plaintiff asserts that in finding Dr. Liu’s opinion

“not particularly persuasive,” the ALJ “rejected the only examining opinion of record related to

Plaintiff’s physical limitations.” See id. at 10. Plaintiff further asserts that the ALJ’s finding the

opinions of Dr. Miller and Dr. Koeing persuasive was not “enough to support the physical portion

of the RFC finding, especially in light of Plaintiff’s many severe physical impairments.” See ECF

No. 7-1 at 12. The Court disagrees.

First, Dr. Liu’s assessment of “mild limitation for prolonged walking, bending, kneeling,

squatting, lifting, carrying, overhead reaching, prolonged sitting, standing, and stair climbing” (Tr.

534) supports the ALJ’s RFC finding (Tr. 18), as mild limitations are consistent with the ability to

perform the light work. See, e.g., Lewis v. Colvin, 548 F. App’x 675, 677-78 (2d Cir. 2013) (Second

Circuit agreed that the RFC assessment for a significant range of light work was supported by an

assessment from a consultative examiner’s assessment of “mild limitations for prolonged sitting,

standing, and walking,” and direction that Lewis should avoid “heavy lifting, and carrying.”);

Hamilton v. Comm’r, Soc. Sec., Civ. No. 19-770, 2020 WL 5544557, at *4 (W.D.N.Y. Sept. 16,

2020) (stating that “the ALJ’s RFC determination incorporated the “mild to moderate” limitations

for prolonged walking, bending, and kneeling . . . , which is demonstrated by the ALJ’s limiting

Hamilton to light work with additional restrictions relevant to these activities.”); Dier v. Colvin,

Civ. No. 13-5025, 2014 WL 2931400, at *4 (W.D.N.Y. June 27, 2014) (“while the treating

physician and consultative examiner used terms like ‘mild’ and ‘moderate[,]’ this does not

automatically render their opinions void for vagueness”). Because Dr. Liu’s assessment is

consistent with the RFC for light work, Plaintiff’s argument fails.

Additionally, there was sufficient other medical evidence in the record on which the ALJ

based his RFC finding. For example, Dr. Miller reviewed the record on October 2, 2019, and Dr.

Koenig reviewed the record on December 18, 2019, including the examination results and

assessment of mild limitations from Dr. Liu. Tr. 97-98, 113-14, 118. Dr. Miller and Dr. Koenig

both opined that Plaintiff could perform light work consistent with the RFC. See id. As explained

above, well-supported assessments from non-examining state agency medical sources, such as Drs.

Miller and Koeing, may provide substantial evidence supporting an RFC. Thus, the Court finds no

error in the ALJ finding persuasive the opinions of Drs. Miller and Koeing. Tr. 21.

Next, Plaintiff complains that the ALJ’s decision was somehow incomplete or incorrect

because Drs. Liu, Miller, and Koenig “did not have the opportunity to consider developments in

Plaintiff’s medical condition that the ALJ was made aware of at the hearing level,” specifically,

testimony about her foot problems. See ECF No. 7-1 at 13. At the December 2, 2020 hearing,

Plaintiff testified that she had foot surgery “last year” and “couldn’t walk that good right now.”

Tr. 37. She further testified that she broke her foot after having one foot surgery done, ‘[t]hen

COVID-19 happened [,] and [she had] been walking on a broken foot for the last year.” Id.; see

also Tr. 53. Contrary to Plaintiff’s argument, Drs. Miller and Koenig considered Plaintiff’s

problems with her feet, specifically noting records from treating podiatrist Dr. Riznyk (Tr. 354-

64) indicating that Plaintiff’s plantar fasciitis had improved; orthotics had been recommended; and

Plaintiff was scheduled to have a bunionectomy. Tr. 98, 114. Moreover, on September 24, 2019,

Dr. Liu observed that while Plaintiff reported that she “could walk one block,” on physical

examination, she had a normal gait and stance; she could walk on her heels and toes with moderate

difficulty because of low-back pain (not feet problems); used no assistive devices to ambulate or

stand; needed no help changing for the exam or getting on and off the exam table; was able to rise

from a chair without difficulty; and had full (5/5) strength in the lower extremities, all of which

reasonably supported Dr. Liu’s assessment of only mild difficulty in walking (Tr. 532-34).

Furthermore, Dr. Liu’s assessment was consistent with the assessments of Drs. Miller and Koenig

(Tr. 97, 113-14), as well as consistent with the performance of light work as set forth in the RFC

(Tr. 18).

Notably, it is Plaintiff’s burden to establish blindness or disability by informing the Agency

about, or submitting, all evidence known to the claimant that relates to whether the claimant is

blind or disabled. 20 C.F.R. § 416.912(a). “While the ALJ does have a concurrent duty to assist in

developing the record, that does not relieve Plaintiff of her duty to provide evidence in support of

her claim.” Waldvogel v. Comm’r of Soc. Sec., No. 6:16-CV-0868, 2017 WL 3995590, at *8

(N.D.N.Y. Sept. 11, 2017); see Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 509 (2d Cir. 2009)

(holding that Plaintiff ultimately bears the burden of proving disability, and the ALJ's duty to

develop the record is not absolute). Plaintiff’s failure to provide additional evidence “does not

show that the ALJ was required to seek out that evidence himself.” Waldvogel, 2017 WL 3995590,

at *8; see also LaRon H. v. Comm’r of Soc. Sec., No. 20-CV-07099-MJR, 2023 WL 2042623, at

*1 (W.D.N.Y. Feb. 16, 2023). Furthermore, “a representative has an affirmative duty to provide

competent assistance to the claimant, including acting with reasonable promptness to help obtain

information or evidence the claimant must submit.” Social Security Regulation (“SSR”) 17-4p,

2017 WL 4736894 at *4; see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5. (1987) (“It is not

unreasonable to require the claimant, who is in a better position to provide information about h[er]

own medical condition, to do so.”).

At the hearing, the ALJ asked if the medical record was complete, to which Plaintiff’s

representative replied that Plaintiff was “talking about a surgery that’s going to happen later this

month. So, at this time, everything is in, but I hate to say closed. So, there’s more medical treatment

to come down the pike later on.” Tr. 33-34, 60. The ALJ then held the record open for 30 days for

these records to be submitted. Tr. 60-61. The record reflects that on December 30, 2020, Plaintiff’s

representative sent a request to the ALJ to keep the record open for an additional two weeks. Tr.

302. Plaintiff’s representative sent a similar request on January 4, 2021. Tr. 303. Yet, the record

contains no proffer of additional medical evidence. Nor did Plaintiff’s representative raise this

issue in the pre-Hearing Memo (Tr. 300-01) or argue to the Appeals Council that such records

were necessary and/or forthcoming (Tr. 306-07). Thus, Plaintiff argues for the first time to this

Court that her case should be remanded because she and her lawyers failed to submit evidence

supporting her subjective allegation that she could not walk well due to a recently broken foot.

As noted above, the ALL held the record open for approximately two months following

the hearing, and the promised records were not submitted. Furthermore, the ALJ satisfied whatever

burden he may have had to develop the record by obtaining a consultative examination from Dr.

Liu, as well as assessments from Drs. Miller and Koeing, all of which considered Plaintiff’s foot

impairment and were consistent with the RFC. See Camille, 652 F. App’x at 28 n.4 (finding that

because the evidence dated after the state agency medical consultant’s opinion did not differ

materially from the evidence that the consultant did consider, it was found that the ALJ committed

no error by relying on the non-examining physician); see also Palistrant v. Comm'r of Soc. Sec.,

No. 16-CV-588-FPG, 2018 WL 4681622, at *6 (W.D.N.Y. Sept. 28, 2018) (“Just because the

claimant continues treatment after an opinion is rendered, however, does not mean that the opinion

is stale. Although Palistrant also argues that he experienced a ‘serious deterioration’ of his back

and neck issues after the opinions were rendered [ ], the record does not support this assertion.”).

Based on the foregoing, the Court finds no error in the ALJ’s evaluation of the opinion evidence

relating to Plaintiff’s physical impairments.

Plaintiff’s second point of error argues that the ALJ found the assessments from Dr. Inman-

Dundon and Dr. May (Tr. 99-100, 115-17) “largely persuasive” and “fully consistent with the

medical record []” (Tr. 20), but then did not include their assessed “moderate” limitations in the

RFC finding. See ECF No. 7-1 at 15-18. As an initial matter, contrary to Plaintiff’s argument, 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).

Moreover, Plaintiff’s argument ignores the remainder of the assessments from Drs. Inman-

Dundon and May, wherein, when asked to explain in narrative form each of these moderate

limitations, they each stated: “See PRT.” Tr. 99-100, 115-16. Then in the PRT (psychiatric review

technique) forms, Drs. Inman-Dundon and May explained in more detail what these moderate

limitations meant:

[Plaintiff] retains the capacity to engage in simple tasks. [Her]ability to deal with

co-workers and the public would be somewhat reduced, but adequate to handle only

brief and superficial contact. [Her] ability to tolerate and respond appropriately to

supervision would be reduced, but adequate to handle ordinary levels of supervision

in the customary work settings.

Tr. 95, 111.

These are precisely the limitations included in the ALJ’s RFC finding, as well as in the

hypothetical question posed to the vocational expert. Tr. 18, 59. Specifically:

[Plaintiff] is limited to simple, routine tasks; she can have only occasional

interaction with the public, co-workers and supervisors; she must work in an

environment in which workplace changes are both infrequent and gradually

introduced; and she is unable to perform production-paced work.

Tr. 18.

Therefore, Plaintiff’s argument that the “moderate” limitations assessed by Dr. Inman-

Dundon and Dr. May were not included in the RFC finding fails on the face of what they wrote in

the PRT. See ECF No. 7-1 at 15-18. Accordingly, the Court finds no error.

Based on the foregoing, the ALJ properly analyzed the entire record in accordance with the

Commissioner’s regulations and properly assessed Plaintiff’s RFC. See 20 C.F.R. § 416.946(c)

(the responsibility for determining a claimant’s RFC rests solely with the ALJ); see also

Richardson, 402 U.S. at 399 (it is within the sole province of the ALJ to weigh all evidence and

resolve material conflicts); see Galiotti v. Astrue, 266 F. App’x 66, 67 (2d Cir. 2008) (it is the

province of the ALJ to consider and resolve conflicts in the evidence as long as the decision rests

upon “adequate findings supported by evidence having rational probative force”). 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.

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 v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012)

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

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

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

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

omitted).

CONCLUSION

Plaintiff's Motion for Judgment on the Pleadings (ECF No. 7) is DENIED, and the

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

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

judgment and close this case.

IT ISSO ORDERED.

bere f Lease

DON D. BUS

UNITED STATES MAGISTRATE JUDGE

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