Miller v. Saul

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

TYLER M.,

Plaintiff,

V.

No. 3:19-CV-426

ANDREW SAUL, (CFH)

°/ Commissioner of Social Security,

Defendant.

APPEARANCES: OF COUNSEL:

Lachman, Gorton Law Firm PETER A. GORTON, ESQ.

P.O. Box 89

1500 East Main Street

Endicott, New York 13761-0089

m| Attorney for plaintiff

Social Security Administration LUCY WEILBRENNER, ESQ.

Office of Regional General Counsel,

Region ||

26 Federal Plaza, Rm. 3904

New York, New York 10278

Attorney for defendant

CHRISTIAN F. HUMMEL

U.S. MAGISTRATE JUDGE

1 MEMORANDUN-DECISION AND ORDER‘

Plaintiff Tyler M.? brings this action pursuant to 42 U.S.C. § 405(g) seeking

review of a decision by the Commissioner of Social Security (“the Commissioner’),

1 The parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. §

636(c), FED. R. Civ. P. 73, N.D.N.Y. Local Rule 72.2(b), and General Order 18. See Dkt. No. 7.

2 In accordance with guidance from the Committee on Court Administration and Case Management of

the Judicial Conference of the United States, which was adopted by the Northern District of New York in

2018 to better protect personal and medical information of non-governmental parties, this Memorandum-

Decision and Order will identify plaintiff by his first name and last initial.

which denied his application for supplemental security income benefits under Title XVI

of the Social Security Act. See Dkt. No. 1. Plaintiff moves for, inter alia, reversal and

remand for further administrative proceedings, while the Commissioner cross moves for

judgment on the pleadings. See Dkt. Nos. 9, 11.

After a careful review of the record that was before the Commissioner—and

applying the requisite deferential standard—for the reasons that follow, the undersigned

concludes that the determination resulted from the application of proper legal principles

and is supported by substantial evidence. Accordingly, the Commissioner's motion for

judgment on the pleadings is granted, the plaintiff's motion is denied, and the

determination of the Commissioner is affirmed.

|. Background?

A. Factual Background

Plaintiff was born on November 3, 1990. See T. 36-37. He has an eighth-grade

education, although his medical records occasionally reflect that he completed the tenth

grade. Compare T. 36-37, 334, 399, with T. 389 (“[h]ighest level of education is tenth

grade.”), 458. In September 2007, an Individualized Education Program was

| implemented for plaintiff's 2007/2008 academic year with plaintiff having been identified

as a student with a learning disability in reading decoding and written expression. See

T. 37-38, 217-224, 288-92.

3 References to the administrative transcript will be cited as “T” and page citations will be to the page

numbers in the bottom right-hand corner of the administrative transcript. See Dkt. No. 8. All other

citations to documents will be to the pagination generated by the Court’s electronic filing system,

CM/ECF, and will reference the page numbers in the header, rather than the pagination of the original

documents.

Plaintiff's work history is limited, with plaintiff having worked as a laborer from

June 2014 through September 2014 and a stocker in September 2014. See T. 70, 236,

256; but see T. 334 (reporting that plaintiff “last worked in 08/15 as a laborer’). In the

past, plaintiff lived with his wife, children, and stepchildren, but at the time of the

hearing, he reported living with his girlfriend and his girlfriend’s family. See T. 50, 334.

a

B. Procedural Background

Plaintiff protectively filed an application for supplemental security income,

alleging disability beginning on September 25, 2014.4 See T. 204-11. Plaintiff's claim

was initially denied on March 1, 2016. See T. 74-81. On March 24, 2016, plaintiff

requested a hearing that was subsequently held on March 29, 2018 before

m| Administrative Law Judge (“ALJ”) Jo Ann L. Draper. See T. 31-60. On June 5, 2018,

ALJ Draper rendered an unfavorable decision and plaintiff appealed See T. 9-30, 201-

03; see also T. 7-8 (acknowledging plaintiff's request for review). On February 25,

2019, the Appeals Council denied plaintiff's request for review, making those findings

the final determination of the Commissioner. See T. 1-6. Thereafter, plaintiff timely

commenced this action on April 9, 2019. See Dkt. No. 1.

rr!

4 Plaintiff previously filed two Title XVI applications. See T. 63. The first was filed on November 2, 2010

and denied on December 31, 2010. See T. 63. The second claim was filed on April 21, 2011 and was

denied on June 24, 2011. See T.63. The ALJ determined that there was no basis for reopening the prio

applications. See T. 12 (citing 20 C.F.R. § 416.1488). The ALJ also considered, and rejected, the

application of Social Security Ruling 91-5p, Titles Il and XVI: Mental Incapacity and Good Cause for

Missing the Deadline to Request Review, 1991 WL 208067 (S.S.A. July 1, 1991). See T. 12.

C. The ALJ’s Decision

Applying the five-step sequential analysis, the ALJ first determined that plaintiff

had not engaged in substantial gainful activity since November 6, 2015. See T. 15

(citing 20 C.F.R. § 416.920(b), 416.971 et seq.). At step two, the ALJ found that plaintiff

suffers from several severe impairments, including “learning disorders, asthma,

| sarcoidosis, social anxiety disorder, substance induced anxiety and depressive

disorder, and attention deficit disorder[.]” T. 15-16 (citing 20 C.F.R. § 416.920(c)).

Proceeding to step three, the ALJ held that plaintiff's impairments—including his

substance use disorder—satisfied the criteria for Listing 12.06.° See T. at 16-17; see

also 20 C.F.R. Pt 404, Subpt. P, App. 1, § 12.06 (“Anxiety and obsessive-compulsive

disorders”). ALJ Draper then concluded that in the absence of substance of abuse,

| plaintiff's physical and mental impairments would continue to be severe, but that he

“would not have an impairment or combination of impairments that meets or medically

equals any of the impairments listed in 20 [C.F.R.] Part 404, Subpart P, Appendix 1[.]”

Id. at 17-19 (citing 20 C.F.R. § 416.920(d)).

Proceeding to the next step, the ALJ determined that in the absence of plaintiff's

substance abuse, plaintiff would retain the residual functional capacity (“RFC”):

to perform medium work . . . except he can have no

exposure to excessive pulmonary irritants such as fumes,

odors, dust, and gases. He could perform tasks learned in

30 days or less involving simple, work-related decisions

requiring little to no judgment with only occasional workplace

changes. He can have no interaction with the public and no

5 On January 17, 2017, the revised medical criteria for mental disorders went into effect and applied to

decisions rendered on or after that date. See Genua v. Commrr, No. 18-CV-423 (MJR), 2019 WL

5691 827, at “4 (W.D.N.Y. Nov. 4, 2019); see also 20 C.F.R. Part 404, Subpt. P, App. 1 (effective Jan. 17,

2017). In order to satisfy the revised criteria for Listing 12.06, a plaintiff “must meet the requirements of

sections 12.06A and either 12.06B or 12.06C.” Torres v. Berryhill, No. 16-CV-02354 (FB), 2018 WL

1440533, at *3 (E.D.N.Y. Mar. 22, 2018) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.06A-C). Here,

ALJ Draper expressly considered section 12.06A in conjunction with section 12.06B. See T. 16-17.

more than occasional interaction with coworkers or

supervisors. He is unable to work in close proximity to

others (not standing next to and not being involved in tasks

being performed by others).

T. 19-24 (citing 20 C.F.R. § 416.967(c)). In considering plaintiff's mental impairments

the ALJ concluded that limitations of simple, work-related decisions, nonjudgment,

5 occasional workplace changes, no public interaction, no work in close proximity to

others, and no more than occasional interaction with co-workers and supervisors” was

sufficient to accommodate both plaintiff's subjectively reported limitations, as well as the

restrictions set forth in his medical records. See T. 22-24.

At step five, the ALJ determined that when considering plaintiff's age, education,

work experience, and his RFC, in the absence of substance abuse, plaintiff could still

perform a significant number of jobs in the national economy. See T. 24-25 (citing 20

. C.F.R. §§ 416.960(c), 416.966). This encompassed medium, unskilled occupations—

with a level two Specific Vocational Preparation (“SVP”)—including a stubber (DOT

code 222.687-034), spiral binder, and pork cutlet maker (DOT code 529.686-022). See

T. 25. Ultimately, ALJ Draper determined that “[b]Jecause the substance use disorder is

a contributing factor material to the determination of disability, the [plaintiff] has not bee

disabled within the meaning of the Social Security Act at any time from the date the

application was filed through the date of this decision.” T. 25 (citing 20 C.F.R. §§

416.920(g), 416.935).

D. The Arguments of the Parties

In support of reversal, plaintiff advances several interrelated arguments. See

Dkt. No. 9. First, plaintiff argues that the RFC is unsupported by substantial evidence

because ALJ Draper failed to assess any limitations to plaintiff's work pace and/or

attendance. See id. at 8-11. Second, he argues that the ALJ improperly weighed

certain medical opinions. See id. at 12-20. Third, plaintiff argues that the conclusion

that plaintiff was capable of working a position with a level two SVP is inconsistent with

his social limitations. See id. at 20-21. Finally, plaintiff argues that the ALJ’s conclusion

| at step five is not supported by substantial evidence because it failed to account for the

full extent of plaintiff's limitations. See id. at 21-22.

The Commissioner argues in opposition that the ALJ properly weighed all of the

medical opinions in arriving at plaintiff's RFC. See Dkt. No. 11 at 4-11. Second, the

Commissioner argues that the SVP determination is irrelevant to plaintiff's social

limitations. See id. at 11-12. Finally, the Commissioner argues that the step five

determination was supported by substantial evidence. See id. at 12-13.

ll. Legal Standards

A. Standard of Review

In reviewing a final decision of the Commissioner, a district court may not

determine de novo whether an individual is disabled. See 42 U.S.C. § 405(g); Wagner

m|V. oec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the

determination of the Commissioner will only be reversed if the correct legal standards

were not applied, or the determination was not supported by substantial evidence. See

Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d 464,

467 (2d Cir. 1982).

Substantial evidence is “more than a mere scintilla,” which means that in the

record one can find “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)

(citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)).

Under this standard, “once an ALJ finds facts, we can reject those facts ‘only if a

| reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin.,

Commrr, 683 F.3d 443, 448 (2d Cir. 2012) (quoting Warren v. Shalala, 29 F.3d 1287,

1290 (8th Cir. 1994)). Substantial evidence is “a very deferential standard of review-

even more so than the ‘clearly erroneous’ standard.” Brault, 683 F.3d at 448 (quoting

Dickinson v. Zurko, 527 U.S. 150, 153 (1999)).

Where there is reasonable doubt as to whether the Commissioner applied the

proper legal standards, the decision should not be affirmed even though the ultimate

conclusion is arguably supported by substantial evidence. See Martone v. Apfel, 70 F.

Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986). However, if the

correct legal standards were applied—and the ALUJ’s finding is supported by substantial

evidence—the determination must be sustained “even where substantial evidence may

support the plaintiff's position and despite that the court’s independent analysis of the

m| evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147,

153 (S.D.N.Y. 1992) (citation omitted).

B. Determination of Disability®

6 The analysis of supplemental security income benefits under Title XVI parallels, in relevant part, the

statutory and regulatory framework applicable to disability insurance benefits claims under Title Il. See

Franki L. v. Comm’r of Soc. Sec., No. 6:18-CV-741 (GLS), 2019 WL 4736469, at *1 n.2 (N.D.N.Y. Sept.

27, 2019) (citing Barnhart v. Thomas, 540 U.S. 20, 24 (2003)).

“Every individual who is under a disability shall be entitled to a disability . . .

benefit[.]” 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

impairment . .. which has lasted or can be expected to last for a continuous period of

not less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable impairment is

an affliction that is so severe that it renders an individual unable to continue with his or

her previous work or any other employment that may be available to him or her based

upon age, education, and work experience. See id. § 423(d)(2)(A). Such an

impairment must be supported by “medically acceptable clinical and laboratory

diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is

“based on objective medical facts, diagnoses[,] or medical opinions inferable from [the]

m| facts, subjective complaints of pain or disability, and educational background, age, and

work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3

(S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.

1983)).

The Second Circuit employs a five-step analysis to determine whether an

individual is entitled to disability benefits. See 20 C.F.R. §§ 404.1520, 416.920. In

| particular,

First, the [Commissioner] considers whether the [plaintiff] is

currently engaged in substantial gainful activity.

If [the plaintiff] is not, the [Commissioner] next considers

whether [he or she] has a “severe impairment” which

significantly limits his [or her] physical or mental ability to do

basic work activities.

If the [plaintiff] suffers such an impairment, the third inquiry is

whether, based solely on medical evidence, the [plaintiff] has

an impairment which is listed in Appendix 1 of the

regulations. If the [plaintiff] has such an impairment, the

[Commissioner] will consider him [or her] disabled without

considering vocational factors such as age, education, and

work experience; the [Commissioner] presumes that a

[plaintiff] who is afflicted with a “listed” impairment is unable

to perform substantial gainful activity.

Assuming the [plaintiff] does not have a listed impairment,

the fourth inquiry is whether, despite the [plaintiff]’s severe

impairment, he [or she] has the residual functional capacity

to perform his [or her] past work.

Finally, if the [plaintiff] is unable to perform his [or her] past

work, the [Commissioner] then determines whether there is

other work which the [plaintiff] could perform.

Berry, 675 F.2d at 467 (2d Cir. 1982) (spacing added). At the first four steps of the

analysis, the plaintiff bears the initial burden of proof. See DeChirico v. Callahan, 134

F.3d 1177, 1180 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses

I

to the fifth step, then the burden shifts to the Commissioner to prove that the plaintiff is

still able to engage in gainful employment somewhere. See DeChirico, 134 F.3d at

1180 (citing Berry, 675 F.2d at 467).

Moreover, as relevant to this matter, Congress amended the Social Security Act

in 1996 to preclude a finding of disability—and an entitlement to benefits—“if alcoholism

or drug addiction would . . . be a contributing factor material to the Commissioner's

determination that the individual is disabled.” Cage v. Comm’r of Soc. Sec., 692 F.3d

118, 123 (2d Cir. 2012); Smith v. Comm’r of Soc. Sec. Admin., 731 F. App’x 28, 30 (2d

Cir. 2018) (summary order) (“Drug addiction is a material factor if the individual would

not be found disabled if she stopped using drugs.”). Thus, “[w]hen there is medical

evidence of an applicant’s drug or alcohol abuse, the ‘disability’ inquiry does not end

with the five-step analysis.” Cage, 692 F.3d at 123; see Social Security Ruling (“SSR”)

13-2p, Titles Il and XVI: Evaluating Cases Involving Drug Addiction and Alcoholism

(DAA), 2013 WL 621536 (S.S.A. Feb. 20, 2013). In such cases, a secondary analysis

must be conducted to determine whether the plaintiff's drug addiction or alcoholism is

material to the initial finding of disability. See 20 C.F.R. §§ 404.1535(a), 416.935(a). A

“key factor’ under the secondary analysis is whether the plaintiff would still be found

| disabled if they stopped using drugs or alcohol. See id. §§ 404.1535(b)(1),

416.935(b)(1)._ In making this determination, the administrative adjudicators first

determine whether physical and mental limitations would remain if the plaintiff stopped

using drugs or alcohol, and if so, whether those remaining limitations are disabling on

their own. See id. §§ 404.1535(b)(2), 416.935(b)(2). If so, a plaintiff is considered

disabled within the meaning of the Social Security Act notwithstanding his or substance

m|abuse. See id. §§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii). If not, the substance abuse is

considered material, and the plaintiff is not eligible for benefits under the Social Security

Act. See id. §§ 404.1535(b)(2)(i), 416.935(b)(2)(i).

lll. Relevant Medical Evidence

In reaching her determination that plaintiff was not disabled within the meaning of

| the Social Security Act, ALU Draper weighed and considered the opinions of—among

others—consultative examiner Amanda Slowik, Psy.D., see T. 338-43, consultative

examiner Gilbert Jenouri, M.D., see T. 344-48, Family Nurse Practitioner Ryan D. Little,

see T. 394-407, 433-436, 452-455, Pulmonologist Regina Frants, M.D., see 408-32,

441-55, and state-agency psychological examiner D. Brown, Psy.D., see T. 67-70.

Because plaintiff's arguments rely principally upon the opinions of those medical

10

practitioners that specifically opined on the limitations that resulted from plaintiff's

mental conditions, the opinions of those three practitioners are outlined more fully

below.

A. Amanda Slowik, Psy.D.

o On February 12, 2016, Dr. Amanda Slowik (“Dr. Slowik”)—a psychiatric

consultative examiner—evaluated plaintiff, who was present for that examination with

his mother.’ See T. 338-43. Plaintiff was cooperative for purposes of the evaluation,

had normal posture and motor behavior, and adequate expressive and receptive

language skills. See T. 335. Plaintiff's social skills were “somewhat lacking” and his

eye contact was “minimal.” See T. 335. Dr. Slowik described plaintiff's thought process

m|as “[c]oherent and goal directed with no evidence of hallucinations, delusions, or

paranoia” and she noted that he possessed a full range of affect, appropriate speech

and thought content, neutral mood, and clear sensorium. See T. 335. As a result of an

intellectual function within the borderline range, Dr. Slowik observed that plaintiff's

attention, concentration, and memory skills were moderately to markedly impaired. See

T. 336. Plaintiff also exhibited limited insight and questionable judgment. T. 336.

Plaintiff recounted to Dr. Slowik that he showered approximately two times per

week and had no trouble with laundry. See T. 336. Due to difficulties in following

directions, plaintiff did not “do much food preparation or cooking” and he often relied on

others for tasks such as grocery shopping and money management. See T. 336-337.

7 As indicated supra, the revised medical criteria for evaluating mental disorders went into effect on

January 17, 2017. Because the Dr. Slowik’s evaluation was conducted prior to January 17, 2017, the

evaluation was based upon the then-existing Social Security standard. See Seiler v. Comm’r of Soc.

Sec., No. 19-CV-602S (WMS), 2020 WL 4015258, at *2 (W.D.N.Y. July 16, 2020)

11

Plaintiff does not drive, but “would be able to take public transportation if necessary.” T.

336-37. Plaintiff recited that his hobbies included “watching TV, playing video games,

and listening to music.” T. 337.

Dr. Slowik diagnosed plaintiff with attention deficit hyperactivity disorder by report

and a history of cannabis abuse in sustained remission.® See T. 337. She opined that

plaintiff's “ability to follow and understand simple directions and instructions and perform

simple tasks independently” was mildly limited. T. 337. In addition, Dr. Slowik opined

that plaintiff's ability to maintain attention and concentration, maintain a regular

schedule, learn new tasks, perform complex tasks independently, make appropriate

decisions, and appropriately deal with stress” was moderately to markedly limited. See

T. 337. Dr. Slowik likewise opined that plaintiff's “ability to relate adequately with

others” was also moderately limited. T. 337. These difficulties were caused by anger

management issues, cognitive deficits, and distractibility. See T. 337.

In her decision, ALJ Draper afforded this opinion “partial weight.” T.22. In so

holding, the ALJ noted observed plaintiff's performance on the mental status

examination supported Dr. Slowik’s opinion that plaintiff possessed a limited ability to

complete complex tasks. T. 22. However, ALJ Draper expressly rejected additional

1

8 Dr. Slowik also indicated a “provisional” diagnosis of intermittent explosive disorder and the need to

“rule out” an intellectual disability. T. 337. “Rule out” means to eliminate or exclude something from

consideration and it, therefore, does not constitute a diagnosis. Merancy v. Astrue, No. 3:10-CV-1982

(MRK)(WIG), 2012 WL 3727262, at *7 (D.Conn. May 30, 2012) (citing cases). “Provisional,” on the other

hand, means that “there is a strong presumption that the full criteria will ultimately be met for a disorder

but not enough information is available to make a firm diagnosis.” AM. PSYCHIATRIC ASS’N, DIAGNOSTIC.

AND STATISTICAL MANUAL OF MENTAL DISORDERS 23 (5th ed. 2013). In any event, neither a “rule out” or

“provisional diagnosis” is an affirmative diagnosis. See Jackson v. Berryhill, 694 F. App’x 39, 41 (2d Cir.

2017) (summary order) (noting that “rule out” diagnoses “indicated that the disorders were possible

diagnoses that had not been ruled out, pending further evaluation”); Merancy v. Astrue, No. 3:10-CV-

1982 (MRK/WIG), 2012 WL 3727262, at *7 (D. Conn. May 3, 2012) (collecting cases); Keo v. Comm’ of

Soc. Sec., No .09-CV-2019 (CMK), 2010 WL 4905283, at *7 (E.D. Cal. Nov. 24, 2010) (noting that a

provisional diagnosis cannot be equated with a diagnosis).

12

mental limitations because plaintiff demonstrated an ability to understand and

participate in cognitive testing, and was also found to have fair attention and

concentration, intact memory, and normal mood and affect. T. 22.

B. Family Nurse Practitioner Ryan D. Little

° On at least two different occasions, plaintiff sought medical treatment from

Family Nurse Practitioner Ryan D. Little (“N.P. Little”). See T. 394-407, 433-436, 452-

455. First, on May 18, 2017, plaintiff presented to N.P. Little to establish care with the

practice and for additional complaints of, inter alia, right shoulder pain. See T. 400.

The treatment note indicates that plaintiff's medical history was significant for having

been diagnosed in March 2011 with asthma and attention deficient hyperactivity

disorder; both of those conditions are described by N.P. Little as “chronic.”? See T. 400]

Thereafter, on November 27, 2017, plaintiff presented with complaints of hand

pain, a foot lesion, as well as anxiety following his transportation pursuant to the

Comprehensive Psychiatric Emergency Program (“CPEP”) under N.Y. Mental Hygiene

Law § 9.41 earlier in the year.1° See T. 396-399; see also T. 388-93. The treatment

note describes plaintiff's depression as “acute” and his prescriptions for fluoxetine,

hydroxyzine, and trazadone were renewed at that appointment See T. 396, 398-99.

On February 2, 2018, N.P. Little completed the first of two medical source

statements. T. 405-07. In the first, N.P. Little indicated that although he was treating

® The March 2011 onset of asthma and attention deficient hyperactivity disorder also appears in an office

visit note from Dr. Lisa Rodriguez on July 25, 2014. See T. 293-96.

10 Although the CPEP admission occurred prior to plaintiff’s first visit to N.P. Little on May 18, 2017, it is

not mentioned in the office visit note from that date. See T. 400-04.

13

plaintiff for left hip and back pain, he was unable to provide any information on plaintiff's

restrictions due to the limited “background data/workup.” T. 405. N.P. Little opined that

plaintiff would be off task between 15% and 20% of his day and absent at least three

days per month due to his severe social anxiety, agoraphobia, and anxiety/depression.

See T. 407.

o N.P. Little completed a second medical source statement on March 9, 2018."

See T. 433-36, 452-455. In the portion related to plaintiff's physical impairments, N.P.

Little describes plaintiff as suffering from chronic low back pain and left hip pain, but he

does not assign any limitations to those conditions due to the failure to “follow|]

recommendations.” T. 452-53. In the portion related to plaintiff's mental impairments,

N.P. Little indicated that he exhibited a number of limitations due to his social anxiety

disorder and attention deficient hyperactivity disorder. See T. 433-36. More

specifically, N.P. Little opined that plaintiff exhibited an “extreme” limitation with respect

to his ability to maintain attention and concentration and ability to maintain regular

attendance without interruptions from psychological bases symptoms, and a “marked”

limitation in his ability to perform activities within a schedule, ability to be punctual,

consistency in pace, ability to act appropriately with the general public, ability to accept

| instructions and respond appropriately to criticism from supervisors, ability to get along

with co-workers, and the ability to respond appropriately to ordinary stressors in a work

setting with simple tasks. See T. 433. N.P. Little further opined that plaintiff could be

‘1 The administrative transcript divides N.P. Little’s second medical source statement into two separate

statements, with one described as undated—and relating to plaintiff's physical impairments—and the

other described as having been completed on March 9, 2018—and relating to plaintiff's mental

impairments. See T. 433-36 (March 9, 2018), 452-455 (undated). Based upon the identical fax headers,

however, it appears that this was a single medical source statement. See T. 433-36, 452-455.

14

expected to be off task for more than 33% of his work day and absent for more than

three days in a month. T. 434.

In assessing plaintiff's RFC, ALJ Draper afforded N.P. Little’s opinion “little

weight.” T. 23. The ALJ considered—among other factors—N.P. Little’s treatment

relationship with plaintiff, whether his opinion on plaintiff's limitations was fully explained

and supported by the medical evidence, and whether his opinion was consistent with

the record as a whole. See T. 23 (citing 20 C.F.R. §416.927(f)). ALJ Draper expressly

rejected the “extreme” and “marked” limitations as being inconsistent with the medical

record. See T. 23.

C. D. Brown, Psy.D.

On March 1, 2016, psychological consultant D. Brown, Psy.D. (“Dr. Brown’),

conducted a psychiatric review technique assessment and mental residual functional

capacity assessment as part of the initial determination of plaintiff's claim See T. 67-70.

With respect to mental functional capacity, Dr. Brown indicated that plaintiff had

understanding and memory limitations, which resulted in a moderate limitation to

plaintiff's ability to understand and remember detailed instructions. See T. 68. Dr.

Brown also determined that plaintiff had sustained concentration and persistence

limitations, which resulted in moderate limitations in his ability to carry out detailed

instructions, maintain attention and concentration for extended periods, to perform

activities within a schedule, maintain regular attendance and be punctual within

customary tolerances, and work in coordination with, or in proximity to, others without

distracted by them. See T. 68-69.

15

Dr. Brown opined that plaintiff was moderately limited in his abilities to interact

appropriately with the general public, to accept instructions and respond appropriately t

criticism from supervisors, and to get along with coworkers or peers without distracting

them or exhibiting behavioral extremes. See T. 69. In addition, Dr. Brown determined

that plaintiff was moderately limited in his ability to respond appropriately to changes in

the work setting and to set realistic goals or make plans independently of others. See

T. 69. Dr. Brown concluded that plaintiff retained the ability to perform the basic

demands of simple work so long as that work was not performed in close contact with

others.'? See T. 70.

ALJ Draper afforded Dr. Brown’s opinion “some weight.” T. 23-24. In so holding,

ALJ Draper observed that the opinion was “generally consistent with the overall

evidence in the record.” T. 24.

IV. Legal Analysis

A. Whether the RFC Was Supported by Substantial Evidence

Plaintiff argues that the RFC is unsupported by substantial evidence because the

ALJ improperly weighed medical opinions and failed to account for restrictions in

| plaintiff's work pace and attendance. See Dkt. No. 9 at 8-20; Dkt. No. 12 at 1-3. An

RFC is defined as “what an individual can still do despite his or her limitations[.]”

Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (quoting Melville v. Apfel,

12 “The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a

sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to

supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.”

SSR 85-15, The Medical-Vocational Rules as a Framework for Evaluating Solely Nonexertional

Impairments (“SSR 85-15”), 1985 WL 56857, at *4 (S.S.A. Jan. 1, 1985)).

16

198 F.3d 45, 52 (2d Cir. 1999)). “Ordinarily, RFC is the individual’s maximum remaining

ability to do sustained work activities in an ordinary work setting on a regular and

continuing basis.” Melville, 198 F.3d at 52 (quoting SSR 96-8p, Policy Interpretation

Ruling Titles Il and XVI: Assessing Residual Functional Capacity in Initial Claims (“SSR

96-8p”)), 1996 WL 374184, at *2 (S.S.A. July 2, 1996)). A “regular and continuing

| basis” means eight hours a day, for five days a week, or an equivalent work schedule.

Balles v. Astrue, 11-CV-1386 (MAD), 2013 WL 252970, at *2 (N.D.N.Y. Jan. 23, 2013)

(citing Melville, 198 F.3d at 52)

Generally, “[iJn making [the] [RFC] determination, the ALJ must consider [the

plaintiff]’s physical abilities, mental abilities, symptomology, including pain and other

limitations which could interfere with work activities on a regular and continuing basis.”

m| Orton v. Astrue, No. 7:11-CV-630 (FJS/ATB), 2013 WL 3328025, at *16 (N.D.N.Y. July

2, 2013) (quoting Tilbe v. Astrue, No. 5:10-CV-910 (NAM/ATB), 2012 WL 2930784, at

*11 (N.D.N.Y. July 17, 2012)). “Ultimately, ‘[aJny impairment-related limitations created

by an individual’s response to demands of work . . . must be reflected in the RFC

assessment.” Hendrickson v. Astrue, 5:11-CV-927 (ESH), 2012 WL 7784156, at *3

(N.D.N.Y. Dec. 11, 2012) (quoting SSR 85-15, 1985 WL 56857, at *6). The RFC

determination “must be set forth with sufficient specificity to enable [the court] to decide

whether the determination is supported by substantial evidence.” Ferraris v. Heckler,

728 F.2d 582, 587 (2d Cir. 1984).

In arriving at the plaintiff's RFC, the ALJ is tasked with the responsibility of

reviewing all the evidence, resolving inconsistencies, and making a determination that is

consistent with the evidence as a whole. See Camarata v. Colvin, No. 6:14-CV-0578

17

(MAD), 2015 WL 4598811, at *9 (N.D.N.Y. July 29, 2015) (quoting Galiotti v. Astrue,

266 F. App’x 66, 67 (2d Cir. 2008) (Summary order)). “An ALJ does not have to strictly

adhere to the entirety of one medical source’s opinion.” Warren v. Comm'r of Soc. Sec.,

No. 3:15-CV-1185 (GTS/WBC), 2016 WL 7223338, at *7 (N.D.N.Y. Nov. 18, 2016)

(subsequent history omitted). As a result, the RFC formulated by the ALJ need not

° “perfectly correspond with any of the opinions of medical sources cited in his decision,

[because an ALJ is] entitled to weigh all of the evidence available to make an RFC

finding that was consistent with the record as a whole.” Matta v. Astrue, 508 F. App’x

53, 56 (2d Cir. 2013) (summary order); see Cichocki v. Astrue, 729 F.3d 172, 178 n.3

(2d Cir. 2013) (“An ALJ need not recite every piece of evidence that contributed to the

decision, so long as the record ‘permits [the reviewing] to glean the rationale of an ALJ’s

decision.” (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983))).

In addition, because Social Security adjudications are not a traditional adversaria

proceeding, the ALJ has a duty to “investigate and develop the facts and develop the

arguments both for and against the granting of benefits.” Vincent v. Comm’r of Soc.

Sec., 651 F.3d 299, 305 (2d Cir. 2011); see Tankisi v. Comm’r of Soc. Sec., 521 F.

App’x 29, 33 (2d Cir. 2013) (noting the ALJ’s responsibility to investigate). However,

| “remand is not required where the record contains sufficient evidence from which the

ALJ can assess the plaintiff's RFC.” Atiyeh v. Comm’r of Soc. Sec., No. 5:16-CV-392

(ATB), 2017 WL 74717, at *7 (N.D.N.Y. Jan. 6, 2017);

In this case, ALJ Draper surveyed the record and determined that plaintiff retains

the RFC—despite his physical and mental impairments—to perform medium work as

18

defined in 20 C.F.R. §§ 404.1567(c), 416.967(c),'? subject to the following additional

restrictions:

[H]e can have no exposure to excessive pulmonary irritants

such as fumes, odors, dust, and gases. He c[an] perform

tasks learned in 30 days or less involving simple, work-

related decisions requiring little to no judgment with only

occasional workplace changes. He can have no interaction

with the public and no more than occasional interaction with

co-workers or supervisors. He is unable to work in close

proximity to others (not standing next to and not being

involved in tasks being performed by others).

T. 19. Moreover, in order to account for the impact of his mental impairments, ALJ

Draper concluded that plaintiff would be further limited to “simple, work-related

decisions, no judgment, occasional workplace changes, no public interaction, no work in

close proximity to others, and no more than occasional interaction with co-workers and

m| Supervisors[.]” T. 22.

1. Whether the ALJ Erred in Weighing the Medical Opinions

Plaintiff argues that ALJ erred in the manner in which she weighed the medical

opinion evidence. See Dkt. No. 9 at 12-20. Plaintiff takes issue with the ALJ’s

assignment of “partial weight” to the opinion of Dr. Slowik, “little weight” to the opinion of

m|N.P. Little, and “some weight” to the opinion of Dr. Brown. Dkt. No. 9 at 12-20; Dkt. No.

12-1. A careful review of the record reveals that plaintiff's argument is without merit.

13 Medium work involves “lifting no more than fifty pounds at a time with frequent lifting or carrying of

objects weighing up to twenty-five pounds and standing for approximately six hours out of an eight-hour

work day.” Urtz v. Acting Com’r of Soc. Sec., 159 F.3d 1349 (2d Cir. 1998) (citing 20 C.F.R. §§

404.1567(c), 416.967(c)). A person who is deemed able to medium work is also capable of performing

sedentary and light work. See 20 C.F.R. §§ 404.1567(c), 416.967(c).

19

Although an ALJ will consider medical opinions regarding a plaintiff's functioning,

ultimately the ALJ is tasked with reaching an RFC based on the record as a whole. See

20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (“Although we consider opinions from

medical sources on issues such as . . . residual functional capacity . . . the final

responsibility for deciding these issues is reserved to the Commissioner.”). As a result,

o “[rlegardless of its source,” the regulations require that every medical opinion be

evaluated. See 20 C.F.R. §§ 404.1527(c), 416.927(c). The ALJ must consider a

number of factors, such as, “examining history, treating relationship, supportability,

consistency, and specialization to decide the proper weight afforded to each opinion.”

Emsak v. Colvin, No. 13-CV-3030, 2015 WL 4924904, at *10 (E.D.N.Y. Aug. 18, 2015);

20 C.F.R. § 416.927(c)(1)-(6); see generally SSR 06-03p, Titles Il and XVI: Considering

Opinions and Other Evidence From Sources Who Are Not “Acceptable Medical

Sources” In Disability Claims; Considering Decisions On Disability by Other

Governmental and Nongovernmental Agencies (“SSR 06-03p”), 2006 WL 2329939, *2-

*3 (S.S.A. Aug. 9, 2006).

Initially, plaintiff refers to N.P. Little as a “treating source,” seemingly to imply that

his opinion is entitled to controlling weight or special deference. See Dkt. No. 9-10. A

m| Nurse practitioner, however, is not an “acceptable medical source,” whose medical

opinions can be entitled to controlling weight.‘ See Monette v. Colvin, 654 F. App’x

516, 518 (2d Cir. 2016) (summary order); Coyle v. Comm’r of Soc. Sec., No. 5:17-CV-

14 For claims that were filed on or after March 27, 2017, a nurse practitioner is considered an acceptable

medical source. Compare 20 C.F.R. § 416.927, with 20 C.F.R. § 416.920c. Because plaintiff filed his

claim prior to March 27, 2017, his claim must therefore be analyzed under the earlier regulations. See

Claudio v. Berryhill, No. 3:17-CV-1228 (MPS), 2018 WL 3455409 at *3 n.2 (D. Conn. July 18, 2018)

(“Since [the plaintiff] filed [the] claim before March 27, 2017, | apply the treating physician rule under the

earlier regulations.”).

20

0924 (WBC), 2018 WL 3559073, at *6 n.2 (N.D.N.Y. July 24, 2018) (“Although a nurse

practitioner may be a treating health care provider, not all treating health care providers

are ‘treating sources’ under the applicable Social Security Regulations.”); SSR 06-03p, ,

2006 WL 2329939, *2 (noting that a nurse practitioner is considered an “other source”

rather than an “acceptable medical source”). As a nurse practitioner, N.P. Little is an

“other source” within the meaning of the applicable regulations. Although an “other

source,” such as N.P. Little, may have been able to provide insight into the severity of

plaintiff's impairments and how those impairment impact his ability to function, N.P.

Little’s treatment notes fail to reflect any particular “special knowledge” of plaintiff. See

SSR 06-03p, 2006 WL 2329939, at *2.

In affording N.P. Little’s opinion “little weight,” ALJ Draper outlined a number of

reasons for discounting his opinion, including that (1) N.P. Little was not a mental health

specialist and was not qualified to render an opinion on the effects of plaintiff's mental

impairments; (2) the limited treatment rendered by N.P. Little was for plaintiff's

physical—rather than mental—conditions; (3) the opinion was not consistent with

objective clinical findings, including cooperative presentation, normal mood and affect,

and stable cognitive findings; and (4) N.P. Little had a relatively limited examining

| relationship with plaintiff. See 20 C.F.R. § 416.927(c)(1)-(6). Although N.P. Little

opined that plaintiff exhibited “extreme” limitations with respect to plaintiff's ability to

maintain attention and concentration and ability to maintain regular attendance without

interruptions and “marked” limitations in all other areas, see T. 433, these limitations

were not supported by N.P. Little’s treatment notes, which reveal that he did not, at any

point, conduct an examination of plaintiff's mental status or perform any objective

21

testing that would support his conclusion that plaintiff exhibited “extreme” and “marked”

limitations, would be off task more than 33% of his day, or would be absent more than

three times per month. See T. 394-404, 433-34. N.P. Little did not cite any specific

behavior patterns or incidents that were illustrative of plaintiff's “marked” or “extreme”

limitations in his concentration and pace, interactions with orders, or stress. See T.

394-404, 433-34. N.P. Little’s opinion was also out of line with the opinions of Dr.

Slowik and Dr. Brown, both of whom were acceptable medical sources. See 20 C.F.R. §

416.902 (eff. Jun. 13, 2011 to Mar. 26, 2017) (noting that “acceptable medical sources”

include treating sources, nontreating sources, and nonexamining sources.). As a result,

ALJ Draper was well within her discretion to assign “little weight” to N.P. Little’s opinion.

T. 23; see e.g., Jeffrey C. v. Berryhill, No. 6:18-CV-505 (FJS/DJS), 2019 WL 3361256,

*5 (N.D.N.Y. May 22, 2019) (noting that it is within the ALJ’s discretion to determine

what weight to assign the opinion of a nurse practitioner) (subsequent history omitted).

Turning next to Dr. Slowik, ALJ Draper assigned her opinion “partial weight,”

noting that although some of the mental restrictions were medically supported, others

were not. T. 22. In particular, ALJ Draper noted that plaintiff's “performance on his

mental status examination, including his inability to complete serial threes and perform

| mathematical calculations, supports her opinion regarding plaintiff's limited ability to

perform complex tasks” and the corresponding limitation on his limitation to simple work

with few workplace changes and restricted social interactions. T. 22. However, ALJ

Draper rejected Dr. Slowik’s moderate to marked limitations in plaintiff's ability “to

maintain attention and concentration, maintain a regular schedule, learn new tasks,

perform complex tasks independently, make appropriate decisions, and appropriately

22

deal with stress[.]” T. 337. In rejecting that assessment, the ALJ concluded that the

marked range of limitations was not supported by Dr. Slowik’s own mental examination,

as well as other record evidence. T. 22; see T. 315 (noting normal judgment and

insight, normal orientation to person, place, and time; intact recent and remote memory;

and normal mood and affect); T. 319, 323, 329, 473, 477, 480, 483. ALJ Draper also

| observed that although plaintiff was admitted to CPEP on February 21, 2017, “[d]uring

his hospitalization, he “showed no suicidal tendencies, denied any suicidal ideation and

showed virtually no signs of depression.” T. 391. Although plaintiff was anxious and

stressed about his children and other life stressors when he began outpatient treatment

following that CPEP admission, he nonetheless maintained fair concentration, attention,

insight, and judgment. T. 456-470. Accordingly, ALJ Draper was within her discretion

afford “partial weight” to Dr. Slowik’s opinion. T. 23.

With respect to Dr. Brown—whose opinion conflicted somewhat with that of Dr.

Slowik—ALJ Draper assigned that opinion “some weight.” T. 21. In brief, ALU Draper

observed that the restrictions assigned to plaintiff by Dr. Brown—which resulted from hi

comprehensive record review, were “generally consistent with the overall evidence of

record’—including plaintiff's hearing testimony, hospitalization records, and brief

| therapy treatment notes. T. 21-22. ALJ Draper also credited Dr. Brown’s rejection of

the “marked” limitations opined by Dr. Slowik, stating:

The moderate to marked memory and attention impairment

noted [by Dr. Slowik] do not seem mentioned, supported or

potentially explained by anything else in records. Lourdes

[medical records] indicates intact. CE ADLS, Independent in

personal ADLs, does child care, prepares simple meals,

socializes with friends, helps with housekeeping chores,

shops, manages money, goes fishing, plays video games.

23

T. 70 (errors in original). Although Dr. Brown’s opinion—like Dr. Slowik’s opinion—pre-

dated plaintiff's CPEP admission, see T. 388-93, his opinion is still useful in determining

plaintiff's RFC and there no legal requirement that opinion sources have access to the

complete record. See Stottlar v. Colvin, 15-CV-0340 (GTS), 2017 WL 972108, at *7

(N.D.N.Y. Mar. 10, 2017) (“As an initial matter, a medical consultant's failure to consider

| the complete medical record does not necessarily compel rejection of the medical

consultant’s opinion “or the ALJ's finding relying thereon.”). Likewise, the ALJ was

entitled to partially rely on an opinion from a medical consultant because he is

considered a qualified expert in the field of social security. See Frye ex rel. A.O. v.

Astrue, 485 F. App’x 484, 487 (2d Cir. 2012) (summary order); Little v. Colvin, No. 5:14-

CV-63 (MAD), 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015). Accordingly, ALJ

Draper was within her discretion to afford “some weight” to this opinion. T. 23.

Taken as a whole, it is well-settled that “the [Commissioner’s] finding will be

sustained if supported by substantial evidence, . . . even where substantial evidence

may support the plaintiff's position and despite that the court’s independent analysis of

the evidence may differ from the [Commissioner].” Rosado, 805 F. Supp. at 153

(internal citations omitted). After reviewing the evidence of record, the undersigned

| Concludes that the ALJ’s decision to discount the opinion of N.P. Little—who was not an

acceptable medical source—is supported by substantial evidence. Likewise, the ALJ’s

decisions to assign “some weight” and “partial weight” to the opinions of consultative

examiners Dr. Brown and Dr. Slowik is likewise supported by substantial evidence. The

ALJ’s RFC did not need to perfectly correspond with any one medical opinion; rather,

the ALJ was entitled to weigh all of the evidence and formulate an RFC that was

24

consistent with the record as a whole. See Matta, 508 F. App’x at 56. Accordingly, the

undersigned concludes that remand is inappropriate on this basis.

2. Whether the ALJ Failed to Assess Work Pace and Attendance Limitations

Plaintiff argues that the ALJ failed to properly assess limitations with respect to

work pace and attendance. See Dkt. No. 9 at 8-11. According to plaintiff, the

undisputed record evidence indicates that plaintiff is unable to meet employer standards

in those categories. See id. at 8-9. Relying principally on the Second Circuit's decision

in Balsamo v. Chater, 142 F.3d 75 (1998), plaintiff argues that the ALJ arbitrarily

substituted her own judgment for competent medical opinions because N.P. Little and

Dr. Slowik found an “inability to meet employer demands for work pace and/or

attendance and there is no contrary opinion.” Id. at 11 The undersigned’s careful

review of the ALJ’s decision does not support plaintiff's arguments.

Work pace and attendance both “fall[] under the category of concentration and

persistence,” Lowry v. Comm’r of Soc. Sec., No. 15-CV-1553 (GTS/WBC), 2017 WL

1290685, at *4 (N.D.N.Y. Mar. 16, 2017), report and recommendation adopted, No. 15-

CV-1553 (GTS/WBC), 2017 WL 1291760 (N.D.N.Y. Apr. 6, 2017), which “refers to the

| ability to sustain focused attention and concentration sufficiently long to permit the

timely and appropriate completion of tasks commonly found in work settings.” Cox v.

Astrue, 993 F. Supp. 2d 169, 182 (N.D.N.Y. 2012). The Second Circuit has determined

that a moderate limitation in the area of concentration, persistence, or pace does

necessarily preclude the ability to perform unskilled work. See Zabala v. Astrue, 595

F.3d 402, 410 (2d Cir. 2010)); see also Matta, 508 F. App’x. at 55 (“The ALJ found that

25

plaintiff had moderate difficulties in concentration, persistence and pace . . . that limit

[him] to simple, routine, low-stress, and unskilled tasks, which involve no more than

minimal contact with co-workers, supervisors and the general public.”) (internal

quotation omitted); Whipple v. Astrue, 479 F. App’x 367, 370 (2d Cir. 2012) (summary

order); Andrea N. v. Saul, No. 3:18-CV-1186 (CFH), 2020 WL 1140512, at *6 (N.D.N.Y.

Mar. 9, 2020) (“Accordingly, because the record evidence establishes that plaintiff has,

at most, a moderate limitation in maintaining a regular work schedule and work-pace

and the RFC specifically limits plaintiff to light work that involves only simple, routine

tasks with minimal contact with coworkers, supervisors, or the public, the RFC

adequately ‘accounts for [the plaintiff's] limitations for performing activities within a

schedule and maintaining regular attendance.”’).

The three relevant sources—Dr. Slowik, N.P. Little, and Dr. Brown—each

determined that plaintiff was limited, in some way, with respect to the domain of

concentration, persistence, and pace. See Dkt. No. 9 at 3-7. More specifically, (1)

N.P. Little opined that plaintiff exhibited “extreme” limitations in his ability to maintain

attention and concentration and maintain regular attendance without interruptions from

psychological bases symptoms and “marked” limitations in all other areas, see T. 433;

Dr. Slowik opined that plaintiff was “moderately to markedly” limited in his ability to

maintain attention and concentration, maintain a regular schedule, learn new tasks,

perform complex tasks independently, make appropriate decisions, and appropriately

deal with stress, see T. 337; and (3) Dr. Brown opined that plaintiff was “[m]odeterately

limited” in his abilities to carry out detailed instructions, maintain attention and

concentration for extended periods, to perform activities within a schedule, maintain

26

regular attendance, and be punctual within customary tolerances, and work in

coordination with or in proximity to others without distracted by them, see T. 68-69.

The ALJ determined that plaintiff has a moderate limitation with regard to

concentration, persistence, and pace. See T. 17. In so holding, ALJ Draper observed

that although plaintiff self-reported that he was easily distracted and has trouble

o sustaining attention, that contention was belied by evidence that plaintiff had sustained

attention to go fishing, watch television, play video games, and use his cell phone. See

T. 70, 296, 337. In addition, several mental status examinations also revealed that

plaintiff fair attention and concentration. See, e.g., T. 457. When ALJ Draper formulated

the RFC, she concluded that plaintiff is capable of performing tasks learned in 30 days

or less involving simple, work-related decisions requiring little to no judgment with only

OCCasional workplace changes, no interaction with the public and no more than

occasional interaction with coworkers or supervisors. See T. 19-24. As a result, to the

extent that plaintiff argues the RFC failed to account for his work pace limitations, that

contention is belied by the express language of the RFC. See, e.g., Eby v. Colvin, 227

F. Supp. 3d 275, 279-80 (W.D.N.Y. 2017) (“The RFC determined by the ALJ, which

limits [the] plaintiff to performing low-stress, goal-oriented work[—] and not production

| Pace work[—Jinvolving only simple tasks, adequately accounts for [the] plaintiff's

moderate limitations in attention and concentration.”).

Turning next to attendance, the undersigned concludes that plaintiff's argument

is also without merit. Although N.P. Little and Dr. Slowik opined higher limitations in tha

area, Dr. Brown specifically concluded that plaintiff was “[m]Joderately limited” in his

“ability to perform activities within a schedule, maintain regular attendance, and be

27

punctual within customary tolerances.” T. 68. As previously explained, ALJ Draper

properly afforded little weight to the opinion of N.P. Little, partial weight to the opinion of

Dr. Slowik, and some weight to the opinion of Dr. Brown. In any event, “the ALJ is not

obligated to reconcile explicitly every conflicting shred of medical testimony.” Dioguardi

v. Comm’r of Soc. Sec., 445 F. Supp. 2d 288, 297 (W.D.N.Y. 2006) (internal quotation

marks and citations omitted). Here, although ALJ Draper specifically adopted the

attendance limitation that was opined by Dr. Brown, it bears noting that to the extent

that ALJ Draper rejected other portions of his opinion, there is no “absolute bar to

crediting only portions of medical source opinions.”. Younes v. Colvin, No. 1:14-CV-170

(DNH/ESH), 2015 WL 1524417, at *8 (N.D.N.Y. Apr. 2, 2015).

Contrary to plaintiff's argument, this was not a situation where the ALJ arbitrarily

Substituted her own judgment for competent medical opinion. See Balsamo, 142 F.3d

at 81. Because it was an administrative finding, ALJ Draper bore the final responsibility

for determining plaintiff's RFC and she was well within her discretion to formulate an

RFC that was based upon the record as a whole, even if the RFC did not reflect any

one opinion in its entirety. See Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 9 (2d

Cir. 2017) (summary order); see Matta, 508 F. App’x at 56 (noting that an ALJ’s RFC

does not need to “perfectly correspond with any of the opinions contained in the

record”). It is apparent that ALJ Draper considered plaintiff's capacity for work pace and

attendance, and reasonably rejected portions of Dr. Slowik’s opinion in favor of Dr.

Brown’s, while outright rejecting N.P. Little’s opinion. See Cichocki, 729 F.3d at 178 n.3

(“An ALJ need not recite every piece of evidence that contributed to[his] decision, so

long as the record permits [the reviewing court] to glean the rationale of an ALJ’s

28

decision.”). Accordingly, the undersigned concludes that remand is inappropriate on

this basis as well.

B. Whether a Level Two SVP is Inconsistent with Plaintiff's Social Restrictions

Plaintiff argues that the ALJ’s determination that the plaintiff is capable of

o performing a job with a level two SVP is inconsistent with plaintiff's social restrictions.

See Dkt. No. 9 at 20-21. More particularly, plaintiff argues that a level two SVP—which

indicates that plaintiff can learn new work within thirty days or less—is incompatible with

the restrictions on plaintiff's interactions with co-workers or supervisors. See id. In so

arguing, plaintiff presumes—without any authority—that a thirty-day window for job

training requires close interactions with others, as well as increased oversight. See id.

The undersigned finds that plaintiff's argument is entirely speculative and without merit.

Each job that is listed in THE DICTIONARY OF OCCUPATIONAL TITLES (“DOT”) is

described by reference to various components. One such component—SVP—“‘is

defined as the amount of lapsed time required by a typical worker to learn the

techniques, acquire the information, and develop the facility needed for average

performance in a specific job-worker situation.” DOT, app. C (4th ed., 1991), available

m| at 1991 WL 688702. “The DOT has set out nine levels of training from [SVP level one],

which requires training time of only a short demonstration of the job tasks, to [SVP level

nine], which requires training time of over ten years.” Cross v. Astrue, No. 08-CV-0425

(VEB), 2009 WL 3790177, at *7 (N.D.N.Y. Nov. 12, 2009). “A job with an [SVP level

two] requires ‘anything beyond a short demonstration up to and including one month.”

29

Polynice v. Colvin, No. 8:12-CV-1381 (DNH/ATB), 2013 WL 6086650, at *17 (N.D.N.Y.

Nov. 19, 2013), aff'd, 576 F. App’x 28 (2d Cir. 2014).

Another such job component—“People’—denotes “the degree of interaction with

other people that the job requires.” Duncan v. Colvin, No. 13-CV-0189, 2014 WL

2004386, at *6 (N.D. Okla. May 16, 2014), aff'd, 608 F. App’x 566 (10th Cir. 2015);

DOT, app. B (4th ed., 1991). “The DOT rates the amount of interaction with people on a

scale of 0-8, with 8 representing the lowest possible level of human interaction that

exists in the labor force.” Lane v. Colvin, 643 F. App'x 766, 770 n.1 (10th Cir. 2016)

(summary order); Star v. Colvin, No. 12-CV-201 (FHM), 2013 WL 1788581, at *2 (N.D.

Okla. Apr. 26, 2013).

In this case, the ALJ outlined three examples of jobs that plaintiff could perform i

m| the national economy: (1) stubber (DOT code 222.687-034); (2) spiral binder (DOT cod

653.685-030); and (3) pork cutlet maker (DOT code 529.686-022). See T. 25. Each

position had the same SVP; that is, a level two. In addition, each position is also

described as an “8,” which is “the lowest possible level of human interaction that exists

in the labor force.” Lane, 643 F. App’x at 770 n.1. As a result, the jobs suggested by

the vocational expert were squarely within plaintiff's social limitations. T. 19.

in The undersigned would reach the same conclusion when reviewing the precise

requirements of each position. With respect to the stubber position, the DOT describes

the job as follows:

Removes sales-slip stubs from packages at loading dock

and sorts stubs, according to size of package or type of

merchandise, to keep record of store deliveries. Returns

illegibly addressed or mutilated packages for rewrapping or

readdressing. Totals number of stubs at end of day and

prepares report.

30

DOT 222.687-034, 1991 WL 672136. With respect to spiral binder, the DOT describes

that position as follows:

Tends machine that forms, inserts, trims, and fastens spiral

binding in covers of paper goods such as booklets,

pamphlets, and notebooks: Measures guides, using ruler,

and positions or adjusts guides to accommodate size of

sheets to be bound. Tightens setscrews to secure guides in

specified position. Starts machine. Positions and holds

items to be bound inside guide stops of machine and

depresses pedal to form, insert, cut off, and crimp ends of

spiral binder. Stacks bound items on skid. Removes broken

pieces of wire from machine, using pointed pliers. Removes

and replaces damaged covers and backs. May thread wire

into machine. May manually start preformed spiral in

perforated holes of items to be bound and hold spiral against

rubber-covered spindle or wringer-like rollers which twist

Spiral into remaining perforations.

DOT 653.685-030, 1991 WL 685807. With respect to pork cutlet maker, the DOT

I

describes that occupation as follows:

Feeds machine that shreds and presses pork into cutlets:

Cuts strips of pork into pieces, using knife. Dumps cut meat

into feed hopper of machine that automatically shreds meat,

presses shredded meat into cutlets, and stacks cutlets on

waxed paper dividers. Weighs and packs cutlets into

cardboard carton on weighing scales, according to work

ticket specifications. Seals carton, using pneumatic staple

gun.

m| DOT 529.686-022, 1991 WL 674721. Accordingly, these job descriptions do not reflect

that contact with others is required, which is consistent with the “People” job

component, as well as the social limitations contained in plaintiff's RFC. In addition,

plaintiff has not pointed to any authority that would lead the undersigned to conclude

that a level two SVP equates to increased oversight and interaction with others due to a

31

training or probationary period. As a result, the undersigned concludes that remand on

this ground is not appropriate.

C. Whether the Step Five Determination was Supported by Substantial Evidence

At step five, the burden shifts to the Commissioner to prove that the plaintiff is

still able to engage in gainful employment somewhere. See DeChirico, 134 F.3d at

1180 (citing Berry, 675 F.2d at 467); see also Brault v. Soc. Sec. Admin., Comm’r, 683

F.3d 443, 445 (2d Cir. 2012) (“At [step five], the burden shifted to the Commissioner to

show there is other work that [the plaintiff] can perform.”). In that respect, “[aJn ALJ ma

rely on a vocational expert’s testimony regarding a hypothetical [question] as long as

‘there is substantial record evidence to support the assumption[s] upon which the

Vocational expert based his opinion’ [and] . . . [the hypothetical question] accurately

reflect[s] the limitations and capabilities of the [plaintiff] involved.” McIntyre v. Colvin,

758 F.3d 146, 151 (2d Cir. 2014) (quoting Dumas v. Schweiker, 712 F.2d 1545, 1553-

54 (2d Cir. 1983) (citing Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981)).

“If a hypothetical question does not include all of a [plaintiff]’s impairments, limitations

and restrictions, or is otherwise inadequate, a vocational expert’s response cannot

Constitute substantial evidence to support a conclusion of no disability.” Pritchard v.

Colvin, No. 1:13-CV-945 (DNH/CFH), 2014 WL 3534987, at *10 (N.D.N.Y. July 17,

2014) (citing Melligan v. Chater, No. 94-CV-944S (WMS), 1996 WL 1015417, at *8

(W.D.N.Y.1996)).

Here, when ALJ Draper proceeded to step five, she concluded that plaintiff was

capable of performing at least three jobs that existed in significant numbers in the

32

national economy. See T. 24-25, 54-59. Plaintiff argues the step five determination

was not supported by substantial evidence “because it is based on an incomplete

hypothetical that fails to take into account the full extent of [p]laintiff’s impairments,

including [his] work pace and/or attendancef[.]” Dkt. No. 9 at 21; Dkt. No. 12-1 at 3-4.

As outlined supra, however, the ALJ’s analysis of plaintiff's impairments, RFC, and the

o opinion evidence is supported by substantial evidence and the hypothetical questions

proposed to the vocational expert properly reflected the RFC limitations. See T. 54-59.

Plaintiff has not demonstrated that further limitations—including additional restrictions

on his work pace and/or attendance—were warranted. The vocational expert testimony

was based upon a hypothetical that accurately reflected the RFC and the ALJ, in turn,

properly relied on such testimony in order to conclude that plaintiff was able to perform

Other jobs existing in significant numbers in the national economy. See T. 24-25, 54-59.

Accordingly, the undersigned concludes that the ALU’s step five determination is

likewise supported by substantial evidence. As a result, remand is not warranted on this

ground.

V. Conclusion

WHEREFORE, for the reasons stated above, it is hereby:

ORDERED, that the Commissioner’s determination is AFFIRMED; and it is

further

ORDERED, that plaintiff's motion (Dkt. No. 9) is DENIED and it is further

ORDERED, that the Commissioner’s motion (Dkt. No. 11) is GRANTED; and it is

further

33

ORDERED, that the Clerk of the Court serve copies of this Memorandum-

Decision and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: September 3, 2020

Albany, New York

Christian F. Hummel

U.S. Magistrate Judge

I

34