Bogle v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CRYSTAL B., §

§

Plaintiff, §

§

v. § Case # 1:22-cv-356-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Crystal B. (“Plaintiff”) brings this action pursuant to the Social Security Act (the

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

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

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

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

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

order (see ECF No. 13).

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

Procedure 12(c). See ECF Nos. 7, 9. Plaintiff also filed a reply. See ECF No. 10. 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. 9) is GRANTED.

BACKGROUND

Plaintiff protectively filed applications for DIB and SSI on April 5, 2019, alleging disability

beginning February 10, 2019 (the disability onset date), due to herniated discs, joint dysfunction

in her back, knee pain, overactive bladder, and depression. Transcript (“Tr.”) 15, 78-79, 282-92,

319. The claims were initially denied on July 17, 2019, and again upon reconsideration on October

3, 2019, after which Plaintiff requested an administrative hearing. Tr. 15, 80-105. On January 6,

2021, Administrative Law Judge Vincent M. Cascio (“the ALJ”) conducted a telephonic hearing,1

at which Plaintiff appeared and testified and was represented by Nicholas DiVirgilio, an attorney.

Tr. 15. Zach Fosberg, an impartial vocational expert, also appeared and testified. Tr. 15.

The ALJ issued an unfavorable decision on February 10, 2021, finding that Plaintiff was

not disabled. Tr. 15-32. On March 14, 2022, the Appeals Council denied Plaintiff’s request for

further review. Tr. 1-6. The ALJ’s February 10, 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).

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

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

participants attended the hearing by telephone. Tr. 15.

(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 10, 2021 decision:

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

December 31, 2024.

2. The claimant has not engaged in substantial gainful activity since February 10, 2019, the

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

3. The claimant has the following severe impairments: obesity, lumbar degenerative disc

disease, asthma, gastroesophageal reflux disease (GERD), status post hysterectomy,

overactive bladder, idiopathic microhematuria, depressive disorder, anxiety disorder and

bipolar disorder (20 CFR 404.1520(c) and 416.920(c)).

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

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

P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and

416.926).

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

CFR 404.1567(b) and 416.967(b)2 except the claimant can occasionally stoop, balance,

crouch, kneel, crawl and climb ramps and stairs, but can never climb ropes, ladders or

scaffolds. The claimant cannot have exposure to unprotected heights or hazardous

machinery. The claimant must avoid exposure to respiratory irritants such as fumes, odors,

dusts, gases and poorly ventilated areas. The claimant can understand, remember, and carry

out simple, routine and repetitive work-related tasks. The claimant would be off task five

percent of the workday in addition to regularly scheduled work breaks.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on December 13, 1982 and was 36 years old, which is defined as a

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

416.963).

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. The claimant has at least a high school education (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using

the Medical-Vocational Rules as a framework supports a finding that the claimant is “not

disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20

CFR Part 404, Subpart P, Appendix 2).

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

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

claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

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

February 10, 2019, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. 15-32.

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

and disability insurance benefits protectively filed on April 5, 2019, the claimant is not disabled

under sections 216(i) and 223(d) of the Social Security Act. Tr. 32. The ALJ also determined that

based on the application for supplemental security income protectively filed on April 5, 2019, the

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

ANALYSIS

Plaintiff asserts three points of error. First, Plaintiff argues that the ALJ improperly

evaluated the October 2020 “Medical Source Statement Regarding Mental Health” completed by

Monir A. Chaudhry, M.D. (“Dr. Chaudhry”), and Julie Curran, MS.Ed. (“Ms. Curran”), and

assessed Plaintiff’s mental RFC based on his own lay opinion. See ECF No. 7-1 at 1, 12-17. Next,

Plaintiff argues that the ALJ’s mental RFC finding3 was not supported by substantial evidence

3 The Court notes that Plaintiff only challenges the ALJ’s mental RFC finding (with the exception of Plaintiff’s

arguments regarding the RFC’s off-task limitation for bathroom breaks) and does not challenge the ALJ’s physical

RFC finding. See ECF No. 7-1 at 17-22. Accordingly, the Court will discuss the ALJ’s physical RFC finding only

insofar as it relates to the off-task limitation. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (issues not

sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal); Patterson v.

Saul, No. 19-CV-465-LGF, 2020 WL 5642187, at *4 (W.D.N.Y. Sept. 22, 2020) (because plaintiff’s contentions were

limited to the ALJ’s treatment of mental impairments, any challenge to the ALJ’s consideration of physical

impairments was waived) (citing Glover v. Saul, 2020 WL 90768, at * 5 (W.D.N.Y. Jan. 8, 2020)); Tolbert v. Queens

Coll., 242 F.3d 58, 75 (2d Cir. 2001) (“It is a settled appellate rule that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.”).

because “the ALJ rejected all of the medical opinions which provided functional assessments of

Plaintiff’s capabilities.” See id. at 17-22. Finally, Plaintiff argues that the 5% off-task time

limitation in the ALJ’s RFC finding was not supported by substantial evidence. See id. at 22-25.

In response, the Commissioner argues that the ALJ properly evaluated the medical opinion

evidence and properly considered the regulatory the factors of consistency and supportability in

finding the opinion of Dr. Chaudhry and Ms. Curran only partially persuasive. See ECF No. 9-1 at

7-14. Next, the Commissioner argues that substantial evidence supports the ALJ’s mental RFC

finding, and the ALJ was not required to rely on medical opinions to assess the RFC finding, as

Plaintiff argues. See id. at 14-21. The Commissioner further argues that the ALJ properly analyzed

Plaintiff’s mental health treatment records and reasonably found that, while the objective medical

evidence did not support Plaintiff’s allegations about the extent of her mental impairments, the

record did support a finding Plaintiff was moderately limited in concentration, persistence and

pace. See id. As for Plaintiff’s final argument, the Commissioner argues that substantial evidence

supports the ALJ’s finding that Plaintiff would be off task no more than 5% of the day, and Plaintiff

has failed to show that she is more limited than the ALJ found. See id. at 21-24.

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 thoroughly considered

the evidence of record, including treatment notes, the opinion evidence, and Plaintiff’s activities

of daily living, and reasonably concluded that Plaintiff could perform sedentary work with

additional exertional and non-exertional limitations. Furthermore, the ALJ’s finding that the

opinion of Dr. Chaudhry and Ms. Curran was only partially persuasive was supported by

substantial evidence. Finally, the Court finds that the ALJ clearly explained his rationale for

including a 5% off-task limitation in the RFC to accommodate Plaintiff’s need for bathroom

breaks. Accordingly, the Court finds no error in the Commissioner’s final decision.

On February 7, 2019, Plaintiff attended a follow-up visit at SCLN Neurosurgery and

reported radiating lumbar pain that had worsened since her last visit. Tr. 555. She reported

occasional numbness in the left foot, and ambulation was difficult favoring her left side. Id. She

recently had a left SI (sacroiliac) joint injection which provided relief for five days; and she had

previously tried physical therapy in 2002, which did not provide relief and caused worsening. Id.

She was referred to pain management and advised to avoid strenuous activity, pushing, lifting, and

pulling more than 20-25 pounds, and no bending and twisting of the spine. Tr. 558.

On March 1, 2019, Plaintiff had an initial evaluation with Albert Sung Jin Koh, D.O. (“Dr.

Koh”), at Pain Treatment Center at Sawgrass, complaining of lower back pain with bilateral

radiation down lower extremities; the pain had been ongoing for 20 years and had been

progressively worsening. Tr. 450. Past imaging showed minimal spinal stenosis secondary to disc

bulge at L2-L3 and L3-L4 and minimal central canal narrowing secondary to disc bulge and

moderate left foraminal narrowing at L4-L5. Tr. 454. Dr. Koh indicated that Plaintiff had “some

foraminal narrowing on the left which would be amenable to epidural injections.” Tr. 456.

However, Plaintiff preferred to try non-invasive treatment before considering injections; Dr. Koh

prescribed Gabapentin. Id.

On April 5, 2019, Plaintiff presented for an acute primary care visit with Cortni C. Monroe,

PA-C (“Ms. Monroe”), at JMH Medical Practice (“JMH”), complaining that she felt contractions

during urination. Tr. 565. She stated that “she wonder[ed] about going on disability because of the

restrictions from her back.” Id. She reported that Gabapentin prescribed by her pain management

gave her diarrhea and did not help with pain; and she still had knee pain. Tr. 565, 567. Plaintiff

appeared “uncomfortable” on physical examination, and mental status and judgment were normal.

Tr. 568-69. Ms. Monroe encouraged Plaintiff to discontinue Gabapentin and follow up with her

pain management provider. Tr. 569. She also referred Plaintiff to urology for her urinary issues.

Id.

On May 10, 2019, Plaintiff followed up with pain management specialist Dr. Koh. Tr.

615-16. Dr. Koh discontinued Gabapentin and prescribed Lyrica. Tr. 616.

On May 14, 2019, Plaintiff was seen by Ms. Monroe at JMH, complaining of “mainly left

leg numbness” and symptoms of cough and cold with fever for two days. Tr. 561-64. Plaintiff

reported using Tylenol and ibuprofen and asked about having repeat imaging of her back. Tr. 561.

She again reported that Gabapentin caused diarrhea, but her insurance would not cover Lyrica. Id.

Ms. Monroe diagnosed left leg numbness and low back pain and ordered imaging of the lumbar

spine. Tr. 564.

On June 19, 2019, Plaintiff underwent a psychiatric consultative examination with Susan

Santarpia, Ph.D. (“Dr. Santarpia”). Tr. 591-95. Plaintiff drove herself to the appointment, traveling

a distance of approximately 80 miles. Tr. 592. She reported sleep disturbance, weight and appetite

fluctuations, panic attacks, and depressive symptoms; and she was taking psychotropic

medications prescribed by her primary care physician. Id. On mental status examination, Dr.

Santarpia noted that Plaintiff had a euthymic mood; she was cooperative; maintained normal eye

contact and normal speech; and she related well, demonstrated good grooming and hygiene,

normal affect and normal thought processes. Tr. 593-94. Examination results also showed normal

attention, concentration, recent and remote memory, cognitive function, intelligence, fund of

knowledge, insight and judgment. Tr. 594. Dr. Santarpia noted that Plaintiff independently cared

for her personal hygiene, managed her own money, drove, socialized with friends and family,

cared for two cats, spent her days a primary caregiver, used a cell phone, and was on social media.

Id. Dr. Santarpia opined that Plaintiff did not have significant mental functioning limitations other

than a mild impairment in regulating emotions, controlling behavior, and maintaining well-being;

Tr. 594-95. Dr. Santarpia indicated that Plaintiff’s difficulties were caused by high levels of

caffeine intake; and the results of the evaluation were consistent with psychiatric problems which

did not appear to be significant enough to interfere with Plaintiff’s ability to function on a daily

basis. Tr. 595.

On June 19, 2019, Plaintiff underwent an internal medicine consultative examination with

Russell Lee, M.D. (“Dr. Lee”). Tr. 596-603. On physical examination, Plaintiff had limited

cervical, lumbar, and shoulder range of motion. Tr. 599-600. Dr. Lee diagnosed lower back pain,

left medial plica syndrome, asthma, overactive bladder, iron deficiency, depression, anxiety, and

OCD. Tr. 600. Dr. Lee opined that Plaintiff had moderate limitations for activities involving

prolonged sitting, prolonged standing, walking great distances, bending, squatting, and lifting, and

she should avoid smoke, dust, and known respiratory irritants. Tr. 600-01. An x-ray of the

lumbosacral spine showed slight levoscoliosis (Tr. 602), and an x-ray of the left knee was negative.

(Tr. 603).

On June 25, 2019, Plaintiff presented to Cattaraugus County Department of Community

Services for an initial assessment. Tr. 717. She stated she was having issues with depression and

anxiety and “had some life stressors that were contributing to this.” Id. She reported lack of

motivation, tearfulness, sense of worthlessness, and feeling useless; she also reported panic attacks

“over nothing” and indicated that she had been having them over the past ten years. Id. She stated

that she did not like people, but she had been able to perform her job in customer service at TOPS

because it was “role playing.” Id. Mental status examination showed mostly benign findings, with

euthymic mood, cooperative behavior, normal activity and eye contact, normal appearance, full

affect, clear speech, logical thought processes, normal thought content, normal cognition, and

average intellect and insight; her judgment was marked as being within normal limits, although an

“impaired ability to make reasonable decisions” was noted. Tr. 723-24. Her provider noted GAD-

7 (generalized anxiety disorder) and PHQ-9 (patient health questionnaire) screening scores

consistent with severe anxiety and depression, but her DLA (daily living activity) screening score

showed only mild impairment. Tr. 725. July 2020 therapy notes indicated that Plaintiff was “doing

fairly well.” Tr. 751.

On July 2, 2019, Plaintiff presented to Ms. Monroe for her annual exam. Tr. 797-801.

Plaintiff reported that she had started treating at the Counseling Center in Olean and had seen the

urologist. Tr. 797. She also reported she had attended a disability physical examination. Id. On

physical examination, Plaintiff appeared “uncomfortable,” but findings were otherwise

unremarkable. Tr. 800-01. On psychiatric examination, Ms. Monroe noted that Plaintiff’s speech

was soft and mumbled, and she spoke with long pauses before answers; her affect was flat and

sad; and her mood was anxious. Tr. 801.

On July 12, 2019, state agency medical consultant M. Kirsch, M.D. (“Dr. Kirsch”),

reviewed Plaintiff’s file as it existed on that date and opined that Plaintiff could perform light

exertion work and should avoid concentrated exposure to fumes, odors, dusts, gases, and poor

ventilation. Tr. 88-90.

On July 15, 2019, state agency psychiatric consultant E. Kamin, Ph.D. (“Dr. Kamin”),

reviewed Plaintiff’s file as it existed on that date and opined that Plaintiff had mild limitations in

the ability to adapt or manage herself and no limitations in the ability to understand, remember, or

apply information, interact with others, and concentrate, persist, or maintain pace, and her

impairments were non-severe. Tr. 86.

On August 15, 2019, Plaintiff followed up at Pain Treatment Center at Sawgrass for low

back pain radiating to the left leg and symptoms the same since her last visit. Tr. 611. She had

tenderness to palpation of the left SI joint and lumbar paraspinal muscles bilaterally; limited range

of motion of the lumbar spine; positive seated straight leg raise testing on the left; positive Fortin’s

sign on the left; and decreased sensation in the left lower extremity. Tr. 612-13. Robaxin and

physical therapy were prescribed. Tr. 613.

On August 22, 2019, Plaintiff followed up with Ms. Monroe for depression and left knee

pain. Tr. 803. Plaintiff was crying and tearful, and Ms. Monroe prescribed Sertraline for mood. Tr.

806-07.

On September 27, 2019, state agency medical consultant S. Sonthineni, M.D. (“Dr.

Sonthineni”), reviewed Plaintiff’s file as it existed on that date and affirmed Dr. Kirsch’s opinion.

Tr. 116-18.

On September 30, 2019, state agency psychiatric consultant A. Chapman, Psy.D. (“Dr.

Chapman”), reviewed Plaintiff’s file as it existed on that date and affirmed Dr. Kamin’s opinion.

Tr. 114-15.

On October 21, 2019, Plaintiff followed up with Ms. Monroe and reported that she did not

notice a difference with Sertraline. Tr. 809. However, she reported that she went to counseling

weekly and found this helpful. Tr. 811. She also reported that her back was really bothering her

lately; she had just finished four weeks of physical therapy which did not help much; and a lumbar

support also did not help much. Id. On examination, Plaintiff appeared uncomfortable with

depressed affect and sad mood, and her Sertraline dosage was increased. Tr. 812-13. Ms. Monroe

advised Plaintiff to continue counseling. Tr. 813.

On November 15, 2019, Plaintiff followed up at Pain Treatment Center at Sawgrass with

continued pain and the same symptoms as the last visit. Tr. 681-82. Robaxin was switched to

Flexeril, and she was instructed to continue physical therapy. Tr. 683.

On December 18, 2019, Plaintiff followed up with Ms. Monroe for depression and had no

concerns. Tr. 814. She thought Methocarbamol helped her pain a little more but made her tired.

Tr. 816. Ms. Monroe prescribed Abilify. Tr. 819.

On February 17, 2020, Plaintiff followed up with Ms. Monroe for depression. Tr. 819-24.

She reported that she had been taking Sertraline 100 mg daily instead of 150 mg daily because she

had been confused about the prescription. Tr. 820, 822. She “guess[ed] she was doing okay on this

medication,” and her mood was okay. Id. She was attending counseling and wished it was more

often than every three weeks.4 Tr. 822. Ms. Monroe instructed Plaintiff to increase Sertraline

dosage to 150 mg and advised Plaintiff to contact her therapist about increasing her visits to every

two weeks. Tr. 824.

4 The Court notes that in October 2019, Ms. Monroe indicated that Plaintiff was attending counseling on a weekly

basis. See Tr. 811.

On February 24, 2020, Plaintiff had a follow-up visit with Dr. Koh for chronic low back

pain. Tr. 692. She reported that physical therapy was not effective, and Flexeril was continued. Tr.

696.

On May 18, 2020, Plaintiff attended a follow-up with Ms. Monroe for depression. Tr. 825-

29. Plaintiff reported that Aripiprazole (Abilify) gave her nightmares, and the increased dosage of

Sertraline was not helping. Tr. 825. Plaintiff also reported that she was no longer seeing Dr. Koh

for pain management and wanted Ms. Monroe to continue her prescription for Flexeril. Id. She

also reported that she was taking Omeprazole for heartburn, but it was not helping much; Flexeril

helped her spasms but not her pain; she got a cane to see if this would help her walk, but it did not;

and she had more numbness in her legs with walking than before. Tr. 827. On examination,

Plaintiff appeared uncomfortable; she had a furrowed brow; speech was slowed and monotonous;

affect was flat and sad; and mood was depressed. Tr. 828-29. Ms. Monroe continued Flexeril;

encouraged Plaintiff to try to be active; increased Omeprazole and encouraged Plaintiff to avoid

known food triggers; she also advised Plaintiff to meet with her psychiatrist for medication

adjustments. Tr. 829.

On May 22, 2020, Plaintiff had a follow-up visit with University of Rochester Medical

Center (“URMC”) Urology. Tr. 697-701. She reported severe bladder pain on her drive to the

appointment, and she continued to have urinary urgency, frequency, and hesitancy. Tr. 697. She

reported that Flomax had not been helpful. A cystoscopy to examine the urinary tract was negative.

Id. Plaintiff reported drinking 12 cups of coffee per day (down from three pots) and one to two 12-

ounce cans of regular soda. Id. On examination, Plaintiff was oriented with normal mood and

affect; she was not in acute distress; and her abdominal examination was normal. Tr. 700.

On June 19, 2020, Plaintiff attended a tele-psychiatric assessment for depression, PTSD,

and difficulty sleeping. Tr. 745. Examination notes showed normal muscle strength and tone,

normal range of motion, good grooming and normal gait and station. Tr. 745-47. Plaintiff was

already on “top doses” of Sertraline and Duloxetine, which were continued; and lithium was

started. Tr. 747. Mental status examination showed that Plaintiff was depressed with a flat affect,

but she was cooperative; had normal appearance, normal eye contact, and normal activity; clear

speech; logical thought processes; and normal thought content, cognition, insight and intelligence.

Tr. 748-49. Her diagnoses included bipolar II disorder and tobacco use disorder, severe. Tr. 749.

On September 11, 2020, Plaintiff attended a depression follow-up visit with Ms. Monroe.

Tr. 830-34. She reported she had tried patches to quit smoking; but they made her sick; a lower

dose was recommended. Tr. 830.

On September 15, 2020, Plaintiff followed up for psychiatric medication management

reporting that she was stable; she had some headache; and she slept well at night. Tr. 951. She was

compliant with her medication and reported no adverse reactions or side effects. Id. Lithium,

Sertraline, and Duloxetine were continued. Tr. 952. On examination, Plaintiff was cooperative

with euthymic mood; full affect, clear speech; her thought processes and thought content were

normal; and her judgment, insight and cognition were normal. Tr. 953.

On October 2, 2020, treating providers Dr. Chaudhry and Ms. Curran completed a mental

health medical source statement. Tr. 902-07. Dr. Chaudhry and Ms. Curran opined that Plaintiff

was limited but satisfactory in the ability to remember work-like procedures, make simple work-

related decisions, ask simple questions or request assistance, accept instructions and respond

appropriately to criticism from supervisors, be aware of normal hazards and take appropriate

precautions, understand, remember, and carry out detailed instructions, set realistic goals or make

plans independently of others, interact appropriately with the general public, maintain socially

appropriate behavior, travel in unfamiliar places, and use public transportation; she was seriously

limited in the ability to maintain attention for two hour segments, maintain regular attendance and

be punctual within customary, usually strict tolerances, sustain an ordinary routine without special

supervision, work in coordination with or proximity to others without being unduly distracted,

complete a normal workday and workweek without interruptions from psychologically based

symptoms, perform at a consistent pace without an unreasonable number and length of rest periods,

get along with coworkers or peers without unduly distracting them or exhibiting behavioral

extremes, respond appropriate to changes in a routine work setting, deal with normal work stress,

and deal with stress of semiskilled and skilled work. Tr. 904-905. Dr. Chaudhry and Ms. Curran

also indicated that Plaintiff’s psychiatric condition exacerbated her physical symptoms, stating that

“[p]ersistent anxiety and depressive moods caused hypervigilance in the body, resulting in muscle

tension, stomach aches, changes in appetite, and poor sleeping habits.” Tr. 905.

Plaintiff first argues that the ALJ’s RFC determination was not supported by substantial

evidence because the ALJ improperly relied on his lay opinion to craft Plaintiff’s mental RFC. See

ECF No. 7-1 at 12-22. A claimant’s RFC is the most she can still do despite her limitations and is

assessed based on an evaluation of all relevant evidence in the record. See 20 C.F.R. §§

404.1520(e), 404.945(a)(1), (a)(3); SSR 96-8p, 61 Fed. Reg. 34,474-01 (July 2, 1996). At the

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

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

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

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

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

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

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

adopted, 2015 WL 7738047 (N.D.N.Y. 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 the evidence

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

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

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

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

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

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

for remand.).

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

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

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

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

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

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

perform the RFC as found by the ALJ.).

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

comprehensively revised its regulations governing medical opinion evidence creating a new

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

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

2017). Here, Plaintiff filed her claims on April 5, 2019, and therefore, the 2017 regulations are

applicable to her claims.

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. 20-30. See 20 C.F.R. §§ 404.1527, 416.927.

Furthermore, the ALJ was not required to rely on an opinion that mirrored the RFC, as Plaintiff

argues. See ECF No. 7-1 at 12-22. As explained above, 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).

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); see also

Camille v. Colvin, 652 F. App’x 25, 28 n. 5 (2d Cir. 2016) (“The ALJ used Dr. Kamin’s opinion

as the basis for the RFC but incorporated additional limitations based on inter alia, the testimony

of Camille that she credited.”).

Here, the ALJ clearly explained his findings regarding the persuasiveness of the medical

opinions in terms of the “most important factors” of supportability and consistency. Tr. 26-30.

See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). In October 2020, Dr. Chaudhry and Ms. Curran

opined that Plaintiff was “seriously limited” in her ability to, inter alia, maintain attention,

maintain regular attendance, sustain an ordinary routine, work in coordination or proximity to

others, complete a normal workday and workweek, respond appropriately to changes in a routine

work setting, and deal with normal work stress; and she had “limited but satisfactory” ability to

make simple work decisions, accept instructions and respond appropriately to supervisors, interact

appropriately with the public, and maintain socially appropriate behaviors. Tr. 904-07. Upon

review, the Court finds that substantial evidence supports the ALJ’s persuasiveness finding.

The ALJ explained that he found Dr. Chaudhry and Ms. Curran’s opinion “partially

persuasive” because it was “only somewhat consistent with the record,” and because they primarily

supported their findings with Plaintiff’s subjective reports regarding her limitations and symptoms,

rather than with medical findings. Tr. 29-30. For example, the ALJ noted that when asked to

explain their opined limitations and include the medical and clinical findings that supported them,

Dr. Chaudhry and Ms. Curran wrote in three separate places, “Writer does not observe client in

settings outside of session and cannot comment on ability to complete tasks. [Plaintiff] reports

challenges with fatigue, poor sleeping habits, motivation, concentration, and persistent anxiety.”

Tr. 29, 904-05. As the ALJ reasonably observed, “[t]his shows that Ms. Curran and Dr. Chaudhry

are not relying on objective observation and examination to support opined limitations, but rather

the claimant’s reports of limitations and symptoms.” Tr. 29. When asked to describe the clinical

findings that demonstrate the severity of Plaintiff’s condition, Dr. Chaudhry and Ms. Curran stated,

“[Plaintiff] reports that chronic fatigue and threat of worsening physical pain make motivation to

complete day-to-day activities challenging. . . .” Tr. 902. See 20 C.F.R. §§ 404.1520c(c)(1),

416.920c(c)(1); cf. Ratliff v. Barnhart, 92 F. App’x 838, 840 (2d Cir. Mar. 18, 2004) (applying the

former regulations and holding that an ALJ may reject a medical opinion based on claimant’s

representations); Roma v. Astrue, 468 F. App’x 16, 19 (2d Cir. 2012) (subjective statements alone

were insufficient to support a doctor’s limitations based predominantly thereon).

In addition, Dr. Chaudhry’s own mental status examination findings do not support the

serious functional limitations stated in the opinion. In July 2020, Dr. Chaudhry observed that

Plaintiff’s mood was depressed and anxious and her affect was flat, but Dr. Chaudhry also found

that Plaintiff was cooperative; her appearance and motor activity were within normal limits; her

speech was clear; her thought processes was logical; there was no evidence of perceptual problems

or abnormal thought content; her cognition, including attention and concentration, were within

normal limits; her intelligence was estimated to be average; and her insight and judgment were

within normal limits. Tr. 747-48. In September 2020, Dr. Chaudhry made similar findings, except

that by that time, Plaintiff’s mood was euthymic, and her affect was full. Tr. 952-54. Thus, the

ALJ reasonably found that Dr. Chaudhry and Ms. Curran’s opinion of significant limitations in

several areas of mental functioning was not fully persuasive. See 20 C.F.R. §§ 404.1520c(c)(1),

416.920c(c)(1) (supportability).

As the ALJ also observed, in contrast to Dr. Chaudhry and Ms. Curran’s finding that

“[Plaintiff] report[ed] challenges with fatigue, poor sleeping habits, motivation, concentration and

persistent anxiety,” treatment records frequently show that Plaintiff’s concentration and attention

were intact, and she slept well. Tr. 29, 594, 724, 746, 748, 764, 904, 905, 951. Treatment records

also show that she denied fatigue. Tr. 460, 471, 746, 800, 842, 853 915, 926, 941. In addition, the

ALJ noted that, while Dr. Chaudhry and Ms. Curran stated that “[Plaintiff] report[ed] that chronic

fatigue and worsening physical pain make motivation to complete day-to-day activities

challenging,” her DLA score indicated that Plaintiff had only a mild impairment of daily activities.

Tr. 29, 725, 902.

The ALJ further noted Plaintiff’s “fairly benign” mental status examination findings,

including cooperative behavior, normal appearance, normal eye contact, normal activity, clear

speech, logical thought processes, normal thought content, normal cognition, normal insight, and

normal intelligence. Tr. 22, 26, 28. For instance, in June 2019, consultative psychiatric examiner

Dr. Santarpia found on mental status examination that Plaintiff was cooperative with good eye

contact and hygiene; her speech was adequate; her thought process was coherent and goal directed

with no evidence of perceptual disturbances; her affect was full and appropriate; her mood was

euthymic; her sensorium was clear; she was oriented to person, place, and time; her attention and

concentration were intact; her memory was intact; her cognitive functioning was estimated to be

in the average range; and her insight and judgment were fair. Tr. 593-94.

Furthermore, mental status examinations throughout 2018, 2019 and 2020 showed

generally unremarkable findings. Tr. 446, 455, 461, 472, 557, 568-69, 573-74, 579, 613, 623, 633,

638-39, 674, 679, 695, 817-18, 823-24, 915, 927, 942. During a June 2019 psychiatric assessment,

Plaintiff was cooperative; her appearance and motor activity were within normal limits; her mood

was euthymic; her affect was full; her speech was clear; her thought processes was logical; there

was no evidence of perceptual problems or abnormal thought content; her cognition, including

attention and concentration, were within normal limits; her intelligence was estimated to be

average; and her insight and judgment were within normal limits. Tr. 723-24. The ALJ also

considered that, while Plaintiff’s GAD and PHQ-9 scores were consistent with diagnoses of severe

anxiety and depression, her DLA score showed only a mild impairment. Tr. 22, 725. Thus, the

ALJ reasonably concluded that based on her DLA score and the benign mental status examination

findings, Plaintiff remained functional despite her impairments. Tr. 22-23, 26. The ALJ further

noted that by 2020, Plaintiff’s symptoms were improving, and she reported that she was stable and

doing well from a psychiatric standpoint. Tr. 26, 28, 951.

In addition to considering the objective medical evidence, the also ALJ appropriately

considered Plaintiff’s reported activities. Tr. 26; see 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)

(consideration of objective medical evidence); 404.1529(c)(3)(i), 416.929(c)(3)(i) (consideration

of daily activities). For example, the ALJ noted that Plaintiff drove, including driving 80 miles to

and from her consultative examination, which demonstrated that she was able to handle the

inherent stresses of driving. Tr. 26, 592. She also reported watching television and playing games,

activities which the ALJ noted require concentration, persistence, and pace. Tr. 26, 28-29, 343,

347.

Plaintiff’s assertion that the ALJ did not adequately articulate why he found Dr. Chaudhry

and Ms. Curran’s opinion only partially persuasive is meritless. The ALJ explicitly stated that the

opinion was “only somewhat consistent with the record,” and he provided record citations

supporting his conclusion, including evidence showing mostly benign mental status examination

findings, as outlined above. Tr. 28-29, 592-95, 723-24, 747-48, 764, 788, 829, 928, 953. Plaintiff’s

argument that Dr. Chaudhry and Ms. Curran’s opinion was entitled to “controlling weight” because

they were treating providers is similarly lacking in merit. See ECF No. 7-1 at 16. Under the

regulations applicable to Plaintiff’s claims, the ALJ was only required to explain his consideration

of the factors of supportability and consistency and was not required to explain how he considered

the other remaining regulatory factors, such as the length of the relationship and the frequency of

examinations.5 See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). Thus, the ALJ reasonably

declined to find the opinion more persuasive simply based on the treating relationship, and for the

reasons discussed above, the ALJ’s finding regarding the consistency and supportability of the

opinion was supported by substantial evidence. Accordingly, the ALJ reasonably found Dr.

Chaudhry and Ms. Curran’s opinion only partially persuasive.

Plaintiff’s second argument—that the ALJ’s mental RFC finding was based on his own lay

opinion—is similarly unavailing. See ECF No. 7-1 at 17-22. According to Plaintiff, the ALJ’s

mental RFC was not supported by substantial evidence because he “rejected all of the medical

5 An ALJ is required to consider several factors in determining how much weight an opinion should receive, including

the length of the relationship and frequency of examinations, nature of the relationship, medical evidence that supports

the opinion, consistency with the record, and if the physician’s specialty is relevant to the impairment. Burgess v.

Astrue, 537 F. 3d 117, 129 (2d Cir. 2008). As previously explained, however, under the revised regulations, the ALJ

is no longer required to give special deference to the opinion of a treating physician over and above that of other

sources. 20 C.F.R. §§ 404.1520c(a), 416.920c(a).

opinions which provided functional assessments of Plaintiff’s capabilities.” Id. As explained

above, however, the ALJ was not required to rely on an opinion that mirrored the RFC because the

ALJ is tasked with weighing all of the relevant medical and other evidence, not just medical

opinions. to reach an RFC finding. See 20 C.F.R. §§ 404.1527(d), 416.927(d); see also Tricarico,

681 F. App’x 98 at 101; Matta, 508 F. App’x at 56.

Here, the ALJ properly considered the opinion evidence and Plaintiff’s mental health

treatment records and found that the objective medical evidence did not support Plaintiff’s

allegations of problems with concentration. Nevertheless, the ALJ afforded Plaintiff the benefit of

the doubt by partially crediting her subjective complaints and assessing moderate limitations in

concentration, persistence, and pace. Tr. 23, 26, 28-29. The ALJ accordingly found that these

moderate limitations could be accounted for by restricting Plaintiff to simple, routine, and

repetitive tasks. Tr. 28-29. Thus, the ALJ crafted a mental RFC that was based on the medical

evidence and accounted for Plaintiff’s subjective reports regarding her symptoms and limitations.

As discussed above, the ALJ considered Plaintiff’s mental health treatment and explained

that the medical evidence showed Plaintiff’s mental impairments caused symptoms such as

anxiety, depressed mood, panic, and mood swings; however, the ALJ determined treatment records

also showed Plaintiff had been responsive to medication and was doing well from a psychiatric

standpoint. Tr. 28, 951. The ALJ also reasonably found that Plaintiff’s reported activities

demonstrated the ability to concentrate and persist at tasks. Tr. 29. Accordingly, the ALJ found

Plaintiff had no more than a mild limitation in most areas of functioning but a moderate limitation

in concentration, persistence, and pace. Tr. 28.

Courts in the Second Circuit have routinely concluded that an ALJ’s finding of moderate

limitations in concentration, persistence, and pace can be accounted for by an RFC for simple,

routine, and repetitive tasks. See, e.g., Hintsa N. v. Comm’r of Soc. Sec., No. 20-CV-6335-FPG,

2021 WL 3615704, at *2 (W.D.N.Y. Aug. 16, 2021); see also McIntyre v. Colvin, 758 F.3d 146,

152 (2d Cir. 2014) (affirming the ALJ’s decision because medical evidence in the record

demonstrated that McIntyre could engage in simple tasks despite moderate limitations in

concentration, persistence, and pace); Johnson v. Berryhill, 17-CV-00684, 2018 WL 4539622, at

*6 (W.D.N.Y. Sept. 21, 2018) (explaining that an RFC limitation to simple, routine tasks

accounted for claimant's “difficulties in maintaining attention, concentration, performing complex

tasks, and learning new tasks”); Ana H. v. Comm’r of Soc. Sec., 19-CV-432, 2020 WL 6875252,

at *10 (W.D.N.Y. Nov. 23, 2020) (RFC properly accounted for plaintiff's moderate limitations in

concentration, persistence, and pace by limiting her to simple, routine, and repetitive tasks).

Accordingly, the ALJ’s finding that Plaintiff retained the mental RFC to understand, remember,

and carry out simple, routine and repetitive work-related tasks was supported by substantial

evidence.

Finally, there is no evidentiary gap in the record, as Plaintiff argues. See ECF No. 7-1 at

22. The ALJ obtained mental health records from Plaintiff’s treating sources, ordered a

consultative psychiatric evaluation, and considered the opinions from the state agency mental

health consultants. Thus, the evidence of record was adequate to make his decision. An ALJ need

not further develop the record “when the evidence already presented is ‘adequate for [the ALJ] to

make a determination as to disability.’” See Janes v. Berryhill, 710 F.App’x 33, 34 (2d Cir. Jan.

30, 2018) (summary order (quoting Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996); see also 20

C.F.R. §§ 404.1520b(b)(1), 416.920b(b)(1)-(2) (If the evidence is incomplete or inconsistent but

sufficient for the ALJ to make a decision, she will make a decision based on the existing evidence);

Rosa, 168 F.3d at 79 n.5 (citing Perez v, 77 F.3d at 48) (“Where there are no obvious gaps in the

administrative record, and where the ALJ already possesses a complete medical history, the ALJ

is under no obligation to seek additional information in advance of rejecting a benefits claim.”).

Thus, Plaintiff has failed to demonstrate any obvious gaps in the record, and to the extent

Plaintiff argues that remand is warranted to obtain an additional opinion because the ALJ did not

rely on medical opinion evidence in assessing the RFC finding, her argument fails for the reasons

already explained. See ECF No. 7-1 at 22. 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, 31 F.4th at 77-

78; Camille, 652 F. App’x at 28 n. 5.

In her third and final point of error, Plaintiff argues that the ALJ erred in finding that she

would be off task 5% of the workday in addition to regularly scheduled work breaks, “a highly

specific limitation not based on any substantial evidence.” See ECF No. 7-1 at 22. First, as

discussed above, the ALJ’s RFC finding need not correspond perfectly with a medical opinion,

and it remains Plaintiff’s burden to demonstrate that she cannot perform the RFC. See Schillo, 31

F.4th at 78; Matta, 508 F.App’x at 56. Here, substantial evidence supports the ALJ’s RFC finding

that Plaintiff would be off task no more than 5% of the day, and Plaintiff has failed to show that

she is more limited.

When evaluating Plaintiff’s RFC, the ALJ considered, inter alia, Plaintiff’s reports of

urinary symptoms including frequency and urgency. Tr. 25, 54-55. However, the ALJ reasonably

found that, despite these symptoms, Plaintiff remained functional and there was no evidence

supporting her testimony that she required an excessive amount of additional time off due to these

symptoms. Tr. 25, 446, 455, 557, 573-74, 579, 599, 612, 623, 633, 638, 674, 678, 694, 817-18,

823-24, 915, 927, 942. In addition to the longitudinal medical record, consisting of multiple mental

health and medical appointments and two consultative examinations, the ALJ noted that, despite

her testimony that she often needed to use the bathroom every 10 minutes, Plaintiff did not ask to

pause the 45-minute administrative hearing to use the restroom. Tr. 26, 54, 39-65. See Gates v.

Astrue, 338 F. App’x 46, 49 (2d Cir. 2009) (summary order) (holding the ALJ may “take account

of a claimant’s physical demeanor in weighing the credibility of her testimony as to physical

disability”) (internal citation omitted). The ALJ also observed that Plaintiff’s reported activities

showed that she remained functional despite her urinary symptoms. Tr. 25. As the ALJ noted,

Plaintiff was “able to go out to the store to shop for up to several hours and was able to travel

eighty miles each way to a consultative examination.” Tr. 25, 346, 592.

Moreover, no medical source opined that Plaintiff’s urinary symptoms would require her

to be off task at all, and Plaintiff has not identified any medical evidence that supports a more

restrictive RFC. As the ALJ explained, however, he partially credited Plaintiff’s subjective

complaints and reasonably found that Plaintiff’s symptoms may have been more severe than the

medical evidence indicated but not as limiting as she alleged. Tr. 27. See 20 C.F.R. §§

404.1529(c)(3), 416.929(c)(3); SSR 16-3p (stating that if a plaintiff’s symptoms suggest a greater

restriction of function than can be demonstrated by objective evidence alone, the ALJ will consider

such factors as her daily activities; the nature and intensity of pain or other symptoms; or the type,

effectiveness and any adverse side effects of treatment.

Despite the ALJ’s thorough and well-supported explanation for the 5% off-task limitation,

Plaintiff nevertheless argues that more specific evidence is needed regarding the amount of time

Plaintiff would be off task. See ECF No. 7-1 at 23-25. Contrary to Plaintiff’s argument, however,

“[t]he fact that the ALJ assigned a particular percentage range . . . to illustrate [Plaintiff's] limitation

does not undermine the fact that the ALJ’s finding was supported by substantial evidence.”

Johnson v. Colvin, 669 F. App’x 44, 47 (2d Cir. 2016) (citing Cosnyka v. Colvin, 576 Fed. App’x

43, 46 (2d Cir. 2014)); see also Mohamed v. Saul, No. 3:18CV02015 (SALM), 2019 WL 3928585,

at *11 (D. Conn. Aug. 20, 2019) (gleaning from the ALJ’s decision that he gave plaintiff “the

benefit of the doubt[ ]” when formulating the off-task time limitation in the RFC, as it appeared

the ALJ did so due to plaintiff’s complaints of pain documented throughout the record); Kirkland

v. Colvin, No. 15-cv-6002P, 2016 WL 850909, at *12 (W.D.N.Y. Mar. 4, 2016) (finding that the

ALJ did not err by assessing specific limitations that did not precisely correspond to any medical

opinion because the claimant’s daily activities, treatment history, and consultative examiner’s

opinion supported the limitations).

Although Plaintiff cites Cosnyka to argue that the ALJ’s 5% off-task limitation was too

specific (see ECF No. 7-1 at 24), the Second Circuit rejected that argument in Cosnyka, clarifying

that the problem was not that the ALJ included a highly specific limitation in the RFC finding, but

rather that there was “no evidentiary basis” for that limitation. Cosnyka, 576 F.App’x at 46. As

discussed above, the ALJ in this case sufficiently explained that he included the 5% off-task

limitation to account for Plaintiff’s urinary symptoms, but he also explained that the record did not

support a finding that she would require an excessive amount of additional time off for these

symptoms. Tr. 25. Accordingly, substantial evidence in the record supports the ALJ’s finding that

Plaintiff would be off task no more than five percent of the workday. See Johnson v. Colvin, 669

F. App’x at 47 (highly specific RFC findings are not problematic when supported by substantial

evidence in the record).

As previously noted, Plaintiff bears the ultimate burden of proving that she was more

limited than the ALJ found. See Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018) (“Smith

had a duty to prove a more restrictive RFC and failed to do so.”); Poupore, 566 F.3d at 306 (it

remains at all times the claimant’s burden to demonstrate functional limitations, and never the

ALJ’s burden to disprove them). While Plaintiff may disagree with the ALJ’s conclusion,

Plaintiff's burden was to show that no reasonable mind could have agreed with the ALJ’s

conclusions, which she has failed to do.

Based on the foregoing, substantial evidence in the record supports the ALJ’s RFC finding.

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

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

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

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

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

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

(emphasis in 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. 9) 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.

Maru A Bua

DON D. BUS

UNITED STATES MAGISTRATE JUDGE

30