The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
FREDERICK C. S., JR.,
Plaintiff,
v. 1:23-cv-0723
(GTS/TWD)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES: OF COUNSEL:
HILLER COMERFORD INJURY JUSTIN M. GOLDSTEIN, ESQ.
& DISABILITY LAW
Counsel for Plaintiff
6000 North Bailey Avenue - Suite 1a
Amherst, NY 14226
SOCIAL SECURITY ADMINISTRATION JASON P. PECK, ESQ.
Counsel for Defendant
Office of the General Counsel
6410 Security Boulevard
Baltimore, MD 21235
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT AND RECOMMENDATION
I. INTRODUCTION
Frederick C. S., Jr. (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or
“Defendant”) denying his application for benefits. Dkt. No. 1. The matter was referred to the
undersigned for a report and recommendation by the Hon. Glenn T. Suddaby, United States
District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d).
Both parties filed briefs, which the Court treats as motions under Federal Rule of Civil
Procedure Rule 12(c), in accordance with General Order 18. Dkt. Nos. 14, 15. Plaintiff filed a
reply. Dkt. No. 16. For the reasons set forth below, the Court recommends Plaintiff’s motion for
judgment on the pleadings be denied and Defendant’s motion for judgment on the pleadings be
granted.
II. BACKGROUND
Plaintiff was born in 1971, and was 44 years old at his alleged onset for date of disability.
T. 330.1 He has a high school education, and previously worked as a truck driver. Id. at 305-16,
320.
On December 1, 2020, Plaintiff protectively filed an application for benefits. Id. at 188-
91. He alleged disability beginning January 21, 2016, due to a traumatic brain injury (“TBI”),
headaches, loss of memory, loss of left eye, loss of ring finger on left hand, neuropathy in his
feet, and arthritis. Id. at 318, 334, see id. at 124, 144, 166, 318. His applications were initially
denied on May 10, 2021, and again upon reconsideration on July 6, 2021. Id. On January 10,
2022, Plaintiff appeared before Administrative Law Judge (“ALJ”) David F. Neumann via
telephone. Id. at 11, 45-77. A vocational expert (“VE”) also testified. Id. On January 31, 2022,
the ALJ issued a written decision finding Plaintiff was not disabled under the Social Security
Act. Id. at 11-21. On April 18, 2023, the Appeals Council denied review, making the ALJ’s
decision the final decision of the Commissioner. Id. at 1-5. This action followed. Dkt. No. 1.
1 The Administrative Record/Transcript is found at Dkt. No. 10. Citations to the Administrative
Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein
will be used rather than the numbers assigned by the Court’s CM/ECF electronic filing system.
Citations not made to the Administrative Transcript will use the page numbers assigned by the
Court’s CM/ECF electronic filing system.
III. APPLICABLE LEGAL STANDARDS
A. Standard of Review
In reviewing a final decision of the Commissioner, a court must determine whether the
correct legal standards were applied and whether substantial evidence supports the decision.
Featherly v. Astrue, 793 F. Supp. 2d 627, 630 (W.D.N.Y. 2011) (citations omitted). A reviewing
court may not affirm the ALJ’s decision if it reasonably doubts whether the proper legal
standards were applied, even if the decision appears to be supported by substantial evidence.
Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
A court’s factual review of the Commissioner’s final decision is limited to the
determination of whether there is substantial evidence in the record to support the decision. 42
U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). “Substantial evidence” is
evidence amounting to “more than a mere scintilla,” and has been defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotation marks and citation omitted). Where evidence is
deemed susceptible to more than one rational interpretation, the ALJ’s conclusion must be
upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s findings must be sustained “even where substantial
evidence may support the plaintiff’s positions and despite that the court’s independent analysis
of the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147,
153 (S.D.N.Y. 1992). A reviewing court cannot substitute its interpretation of the administrative
record in place of the Commissioner’s if the record contains substantial support for the ALJ’s
decision. See Rutherford, 685 F.2d at 62.
B. Standard for Benefits
To be considered disabled, a plaintiff seeking disability benefits must establish he or she
is unable “to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §
423(d)(1)(A). Additionally, the claimant’s
physical or mental impairment or impairments [must be] of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A).2 The Social Security Administration regulations outline a five-step
process to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a “residual functional capacity”
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the
claimant can perform given the claimant’s residual functional
capacity, age, education, and work experience.
2 While the supplemental security income program has special economic eligibility
requirements, the requirements for establishing disability under Title XVI, 42 U.S.C. §
1382c(a)(3) and Title II, 42 U.S.C. § 423(d), are identical, so “decisions under these sections are
cited interchangeably.” Donato v. Sec’y of Health and Human Servs., 721 F.2d 414, 418 n.3 (2d
Cir. 1983) (citation omitted).
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess, 537 F.3d at 120; 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). The claimant bears the burden of proof regarding
the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). If the claimant meets his
or her burden of proof, the burden shifts to the Commissioner at the fifth step to prove the
claimant is capable of working. Id.
IV. THE ALJ’S DECISION
The ALJ applied the five-step sequential evaluation process promulgated by the
Commissioner for adjudicating disability claims. See generally, T. 11-24. At step one, the ALJ
found Plaintiff met the insured status requirements of the Social Security Act though December
31, 2021, and had not engaged in substantial gainful activity since January 21, 2016, the alleged
onset date. Id. at 14.
At step two, the ALJ determined Plaintiff has the following severe impairments: minimal
degenerative arthritis of the cervical spine, minimal degenerative changes of the lumbar spine,
loss of left ring finger, loss of the left eye, and obesity. Id. He found Plaintiff’s hypertension,
obstructive sleep apnea, chronic tension-type headaches, and status-post traumatic brain injury
are non-severe impairments. Id. The ALJ further determined Plaintiff’s medically determinable
mental impairments of depressive disorder, general anxiety disorder, and affective disorder are
non-severe. Id. at 14-16.
At step three, the ALJ found Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. Id. at 16. Next, “[a]fter careful consideration of the
entire record,” the ALJ found Plaintiff has the residual functional capacity (“RFC”) to perform
light work, with certain additional limitations, specifically:
he can lift and/or carry 20 pounds occasionally and 10 pounds
frequently; stand and/or walk for 6 hours in an 8-hour workday; can
perform pushing and/or pulling motions with the upper and lower
extremities within the aforementioned weight restrictions; should
avoid unprotected heights; could occasionally climb ramps and
stairs; occasionally stoop, kneel, crouch, and crawl; should avoid
climbing ropes, ladders, and scaffolds; and has no vision in his left
eye.
Id. at 17. At step four, the ALJ found Plaintiff unable to perform any past relevant work. Id. at
20. At step five, the ALJ determined, based on his age, education, work experience, and RFC,
there were jobs existing in significant numbers in the national economy Plaintiff could perform.
Id. Accordingly, the ALJ concluded Plaintiff has not been under a disability, as defined in the
Social Security Act. Id.
V. DISCUSSION
Plaintiff argues the ALJ erred when failing to identify substantial evidence supporting the
RFC and erred when failing to evaluate the medical opinions. See generally, Dkt. Nos. 14, 16.
Defendant argues substantial evidence supports the work-related limitations in the RFC. See
generally Dkt. No. 15.
The RFC is an assessment of “the most [Plaintiff] can still do despite [his] limitations.”
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). An RFC finding is administrative in nature, not
medical, and its determination is within the province of the ALJ. Id. §§ 404. 1527(d)(2),
416.927(d)(2); see Curry v. Comm’r Soc. Sec., 855 F. App’x 46 (2d Cir. 2021). In general, the
ALJ is obligated to formulate Plaintiff’s RFC based on the record as a whole, not just upon the
medical opinions alone. Trepanier v. Comm’r of Soc. Sec. Admin., 752 F. App’x 75, 79 (2d Cir.
2018). “[I]t is the sole responsibility of the ALJ to weigh all medical evidence and resolve any
material conflicts in the record where the record provides sufficient evidence for such a
resolution . . . .” Micheli v. Astrue, 501 F. App’x 26, 29 (2d Cir. 2012) (Summary Order) (citing
Richardson, 402 U.S. at 399) (additional citation omitted). Although the ALJ has the
responsibility to determine the RFC based on all the evidence in the record, the burden is on
Plaintiff to demonstrate the existence of functional limitations that preclude any substantial
gainful activity. Id. §§ 404.1512(c), 404.1527(e)(2), 404.1545(a), 404.1546(c), 416.912(c),
416.927(e)(2), 416.945(a), 416.946(c); see Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir.
2018) (ultimately, it is plaintiff’s burden to prove a more restrictive RFC than the RFC assessed
by the ALJ).
Under the applicable regulations, the ALJ must consider all medical opinions and
“evaluate their persuasiveness” based on the following five factors: supportability; consistency;
relationship with the claimant; specialization; and “other factors.” 20 C.F.R. §§ 404.1520c(a)-
(c), 416.920c(a)-(c). An ALJ is specifically required to “explain how [he or she] considered the
supportability and consistency factors” for a medical opinion. Id. §§ 404.1520c (b)(2),
416.920c(b)(2).
With respect to “supportability,” “[t]he more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or her medical
opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions
or prior administrative medical finding(s) will be.” Id. §§ 404.1520c(c)(1), 416.920c(c)(1).
With respect to “consistency,” “[t]he more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources and
nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.” Id. §§ 404.1520c(c)(2), 416.920c(c)(2). Failure to
properly assess either factor is a procedural error subject to harmless error analysis. See, e.g.,
Schillo v. Saul, 31 F.4th 64, 75 (2d Cir. 2022); Loucks v. Kijakazi, 21-cv-1749, 2022 WL
2189293, at *2 (2d. Cir. June 17, 2022) (Summary Order).
A. Mental Impairments
Plaintiff raises several issues with the ALJ’s evaluation of his mental limitations. See
generally, Dkt. No. 14 at 13-21; Dkt. No. 16 at 1-8. Plaintiff argues substantial evidence does
not support the ALJ’s finding of no severe mental impairment at step two, and the ALJ further
erred because he failed to consider Plaintiff’s mental impairments, even if non-severe, when
formulating the RFC. Dkt. No. 14 at 13-14. Relatedly, Plaintiff contends the ALJ failed to
evaluate the opinion evidence and substituted his lay opinion. Dkt. No. 16 at 1-6. For reasons
explained below, the Court disagrees. See also Dkt. No. 15 at 6-14.
“Where, as here, mental impairments are at issue, the Commissioner directs
administrative adjudicators to employ a ‘psychiatric review technique’ (sometimes referred to as
a ‘special technique’).” Amanda R. v. Comm’r of Soc. Sec., 556 F. Supp. 3d 145, 151 (N.D.N.Y.
2021) (internal quotations and citation omitted). The psychiatric review technique “helps
administrative law judges first determine whether claimants have medically determinable mental
impairments . . . . [then] determine whether medically determinable mental impairments are
severe (a Step 2 issue) and whether they meet or are equivalent in severity to any presumptively
disabling mental disorder (a Step 3 issue).” Id. (citations omitted, cleaned up).
At the first step of this special technique, the ALJ must evaluate
“symptoms, signs, and laboratory findings” to determine whether
the claimant has one or more medically determinable mental
impairments. 20 C.F.R. § 404.1520a(b)(1). If so, at step two of the
special technique the ALJ must rate the degree of functional
limitation that results from the medically determinable mental
impairment(s). § 404.1520a(b)(2).
This involves the consideration of the degree of limitation present
in “four broad functional areas”: (1) understanding, remembering or
applying information; (2) interacting with others; (3) concentrating,
persisting, or maintaining pace; and (4) adapting and managing
oneself. § 404.1520a(c)(3).
These four functional areas are measured on a five-point scale that
ranges between “none,” “mild,” “moderate,” “marked,” and
“extreme,” with the last point on the scale representing “a degree of
limitation that is incompatible with the ability to do any gainful
activity.” § 404.1520a(c)(4). If, however, the degree of limitation
in each of these areas is “none” or “mild,” the impairment will be
considered non-severe absent evidence that “otherwise indicates
that there is more than a minimal limitation in [the claimant’s]
ability to do basic work activities.” § 404.1520a(d)(1).
Nedzad O. v. Comm’r of Soc. Sec., 577 F. Supp. 3d 37, 44 (N.D.N.Y. 2021). “Application of this
process must be documented and the ALJ’s written decision must reflect application of the
technique and include a specific finding as to the degree of limitation in each of the four
functional areas.” Richard H. v. Comm’r of Soc. Sec., 17-CV-0515, 2018 WL 4627118, at *3
(N.D.N.Y. Aug. 15, 2018) (Dancks, M.J.) (citing Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir.
2008); § 404.1520(a)(e)), report and recommendation adopted, 2018 WL 4625402 (N.D.N.Y.
Sept. 26, 2018) (Hurd, J.).
Here, the ALJ’s narrative discussion reflects his application of the psychiatric review
technique to assess Plaintiff’s mental impairments. See T. 14-16. The ALJ found Plaintiff’s
“medically determinable mental impairments of depressive disorder, general anxiety disorder,
and affective disorder, considered singly and in combination, do not cause more than minimal
limitations in [his] ability to perform basic mental work activities and are therefore nonsevere.”
Id. at 14.
In making this determination, the ALJ observed “[t]here has been no in-patient
hospitalizations since the alleged onset date, no significant ongoing psychiatric treatment, a
psychiatric exam[] showed a normal mood and affect and psychiatric examinations and
observations were normal.” Id. at 14-15 (internal citations omitted). In considering the four
broad mental functioning areas, the ALJ concluded Plaintiff has (1) no limitation understanding,
remembering, or applying information; (2) a mild limitation interacting with others; (3) a mild
limitation concentrating, persisting, or maintaining pace; and (4) a mild limitation in adapting or
managing oneself. Id. at 15.
Plaintiff argues the ALJ “rejected” his mental impairments and improperly based his
severity determination on the lack of hospitalization or significant psychiatric treatment. Dkt.
No. 14 at 14. To be sure, “[c]ourts have reasoned that a claimant’s lack of treatment for a mental
illness does not indicate that his or her condition is not severe because ‘mental illness is
notoriously under-reported and because it is a questionable practice to chastise one with a mental
impairment for the exercise of poor judgment in seeking rehabilitation.’” Krach v. Comm’r of
Soc. Sec., 13-CV-1089, 2014 WL 5290368, at *5 (N.D.N.Y. Oct. 15, 2014) (Suddaby, J.)
(quoting Day v. Astrue, No. 07 Civ. 157, 2008 WL 63285, at *5 n. 7 (E.D.N.Y. Jan. 3, 2008)
(internal quotation marks omitted) (other citations omitted)).
However, the ALJ here identified the lack of treatment as one factor for finding
Plaintiff’s depressive disorder, general anxiety disorder, and affective disorder to be non-severe.
See T. 14-15. The ALJ further explained Plaintiff’s mental status examinations indicated a
“normal mood and affect,” and brief depression screenings were negative. See, e.g., id. at 462,
466, 569, 578, 577, 582, 585, 586, 595. The ALJ also considered Plaintiff’s headaches and noted
“[w]hile the claimant has reported difficulty with memory, the overall record does not document
objective findings of memory loss.” Id. at 14, 15. For example, during the April 15, 2021,
psychiatric evaluation, discussed below, Plaintiff’s recent and remote memory skills were intact,
and he could recall 3 objects out of 3 immediately and 2 out of 3 after a delay, and could repeat 5
digits forward and 4 digits backwards. See id. at 527. Thus, Plaintiff’s challenge to the ALJ’s
discussion on lack of treatment is without merit. See Krach v. Comm’r of Soc. Sec., 2014 WL
5290368, at *5.3
Plaintiff also argues the ALJ erred in his evaluation of the opinions of consultative
examiner Patrica Cameron, Psy.D., and State agency psychological consultants O. Fassler, Ph.D.,
and T. Inman, Ph.D. Dkt. No. 14 at 16-18. The record does not contain an opinion from a
treating source.
On April 15, 2021, Plaintiff was consultatively evaluated by Dr. Cameron. T. 525-29.
Plaintiff indicated he lives alone, drives, cooks, cleans, does laundry, tends to his personal needs,
and manages his finances. Id. at 525, 527. Plaintiff described a typical day as sitting in his chair
and watching television. Id. He has a cell phone he uses for texting, phone calls, e-mail, social
media, and playing games. Id. He has strong family relationships and some friends. Id.
3 The cases Plaintiff cites are readily distinguishable. Dkt. No. 14 at 14. See, e.g., Garcia v.
Comm’r of Soc. Sec., No. 19-CV-6056, 2020 WL 6792389, at *4 (W.D.N.Y. Nov. 19, 2020)
(finding remand was warranted where the ALJ improperly disregarded both treating physicians’
opinions under the prior regulations and placed undue emphasis on the “repeated references to
the lack of hospitalizations and Plaintiff’s normal mental health examinations” because the
record also contained “countless evidence of her examinations when Plaintiff appeared
moderately anxious, crying, angry, with having short term memory problems, impaired
judgment, limited sense of responsibility, labile and constricted affect, apprehensive mood,
pressured and rapid speech, irrational thinking, and with only an occasional smile” in addition to
treatment notes “repeatedly identifying symptoms associated with PTSD, bipolar, panic disorders
and agoraphobia such as her daily panic and anxiety attacks, depression, feelings of fear,
including fear of dying, loss of interest, low energy, hopelessness, nervousness, shortness of
breath, fatigue, crying spells, hypersomnia, irritability, sense of impending doom and failure,
delusions and auditory hallucinations, night tremors, flashbacks, obsessive thought, guilt, and
other symptoms,” despite regular treatment); Kathleen M. v. Comm’r of Soc. Sec., No. 8:20-CV-
1040 (TWD), 2022 WL 92467, at *8 (N.D.N.Y. Jan. 10, 2022) (finding “the absence of a recent
psychiatric hospitalization does not support an affirmative finding that Plaintiff was capable of
work” and did not outweigh “extensive evidence indicating Plaintiff’s mental health issues have
impacted her ability to work). Here, Plaintiff points to no evidence the ALJ ignored or
mischaracterized. See generally, Dkt. Nos. 14, 16.
Plaintiff has no past psychiatric hospitalizations, no outpatient treatment, and no current
treatment. Id. Plaintiff reported frequent awakening during night; excessive apprehension;
irritability; agitation; anxiousness; being short tempered; issues with memory; concentrating
difficulties; difficulty learning new material, forgetting steps to instructions; being easily
distracted, and difficulties focusing. Id. at 525.
Following a mental status examination, Dr. Cameron indicated Plaintiff was cooperative
and had an adequate overall presentation. Id. at 526. He was dressed casually, and his personal
hygiene was satisfactory. Id. Plaintiff’s motor behavior was restless and his posture was
slouched. Id. His speech was fluent and clear. Id. Expressive and receptive language skills
were adequate. Id. Plaintiff’s thought processes were coherent and goal directed with no
evidence of hallucinations, delusions, or paranoia in the evaluation setting. Id. His mood was
irritable and his affect was agitated. Id. He had clear sensorium and was oriented to person,
place, and time. Id.
Plaintiff’s attention and concentration were intact. Id. at 527. He could do counting and
simple calculations. Id. He was able to do serial 3’s and declined serial 7’s. Id. As previously
noted, Plaintiff’s recent and remote memory skills were intact. Id. He could recall 3 out of 3
objects immediately and 2 out 3 after a delay. Id. He could repeat 5 digits forward and 4 digits
backward. Id. Plaintiff’s intellectual functioning was average to below average and his general
fund of information was appropriate to experience. Id. His insight and judgment were fair to
poor. Id. In a medical source statement, Dr. Cameron opined:
There does not appear to be any limitation in his ability to
understand, remember, and apply, simple or complex directions and
instructions. Moderate limitation in his ability to use reason and
judgment to make work-related decisions. Marked limitation in his
ability to interact adequately with supervisors, coworkers, and the
public. Moderate to marked limitation in his ability to sustain
concentration and perform a task at a consistent pace as well as his
ability to sustain an ordinary routine and regular attendance at work.
Moderate to marked limitations in his ability to regulate emotions,
control behavior, and maintain well-being. No limitation in his
ability to maintain personal hygiene and appropriate attire or in his
ability to be aware of normal hazards and take appropriate
precautions.
The results of the examination appear to be consistent with
psychiatric problems, and this may significantly interfere with the
claimant’s ability to function on a daily basis.
T. 527-28. Dr. Cameron indicated the following diagnosis: unspecified depressive disorder,
generalized anxiety disorder, and adjustment disorder. Id. Plaintiff’s prognosis was guarded.
Id. at 528.
On May 7, 2021, Dr. Fassler reviewed the available record, including Dr. Cameron’s
opinion, and determined Plaintiff has no limitation with understanding, remembering, or
applying information; a mild limitation interacting with others; a mild limitation with
concentration, persistence, or maintaining pace; and a mild limitation with adapting or managing
himself. Id. at 110. Dr. Fassler assessed Plaintiff’s mental impairments as non-severe. Id. On
June 30, 2021. Dr. Inman affirmed the opinion of Dr. Fassler and explained:
I have reviewed all the evidence in the file and the assessment of
5/7/21. The CE PhD opined moderate to marked to marked
limitations, which is not c/w the evaluation, the other records in file,
the absence of psych tx, and ADLs. Non-severe psych impairments
are supported.
Id. at 151. Dr. Fassler opined Plaintiff’s “psychiatric impairments are rated as non-severe.” Id.
In finding Plaintiff’s mental impairments non-severe, the ALJ found the opinions of Dr.
Fassler and Dr. Inman “to be persuasive and consistent with the objective findings and lack of
formal mental treatment.” Id. at 16. By contrast, the ALJ found Dr. Cameron’s opinion “to be
unpersuasive because it is not consistent with the findings during the examination or supported
by the record as a whole.” Id. For example, the ALJ explained Dr. Cameron’s medical opinion
was “inconsistent with the claimant’s course of treatment showing no in-patient hospitalization
and no significant ongoing psychiatric treatment and inconsistent with the opinions of the
claimant’s treating physician who examined him on multiple occasions noting normal mood and
affect” and a “normal” psychiatric evaluation on July 18, 2018. Id. at 16, see, e.g., id. at 565,
569, 575, 583. Additionally, the ALJ noted that there is no mention of psychiatric conditions
during Plaintiff’s evaluations with his primary care provider for back pain. Id. at 16, see, e.g., id.
at 601-24. “An ALJ is entitled to consider both what the record does say and what it does not
say.” Christopher W. v. Comm’r of Soc. Sec., 23-CV-1106, 2024 WL 3846069, at * 4 (N.Y.N.D.
Aug. 16, 2024) (Stewart, M.J.) (citing Dumas v. Schweiker, 712 F.2d 1545, 1553) (2d Cir.
1983)).
“It is well-established that the ALJ has both the ability and the responsibility to resolve
conflicts in the evidence,” Amanda R., 556 F. Supp. 3d at 152, and “well settled that an ALJ is
entitled to rely upon the opinions of both examining and non-examining State agency medical
consultants, since such consultants are deemed to be qualified experts in the field of social
security disability.” Schlichting v. Astrue, 11 F. Supp. 3d 190, 204 (N.D.N.Y. 2012) (citations
omitted). Therefore, the ALJ was free to accept Dr. Fassler’s and Dr. Inman’s findings of no
more than mild limitations in Plaintiff’s mental functioning, despite the existence of evidence
which might support finding greater limitations. See, e.g., Nedzad O., 577 F. Supp. 3d at 45
(concluding the ALJ did not err in finding the plaintiff’s mental impairments to be non-severe,
explaining, “[a]lthough [one medical source] assessed ‘moderate’ limitations in several areas . . .
the ALJ ultimately concluded that her opinion was ‘not persuasive’ and ‘not consistent with the
overall medical evidence and the treatment reports’ . . . .”).
Accordingly, substantial evidence supports the ALJ’s step-two conclusion that Plaintiff’s
mental impairments were not severe. See, e.g., Richard H., 2018 WL 4627118, at *6 (the ALJ
did not err in finding Plaintiff’s mental impairments to be non-severe where “the reports of
mental issues were minor, and apparently managed by medications. Plaintiff did not receive any
special treatment with mental health professionals, and he continued to engage in daily
activities.”).
Plaintiff next argues the ALJ failed to discuss Plaintiff’s mental limitations after step two,
“which is error even if there were only mild limitations in relation to the paragraph B criteria.”
Dkt. No. 14 at 13, 18-20. To be sure, there is case law supporting Plaintiff’s argument. See, e.g.,
id. at 18-20. However, “[t]o conclude that remand is required in every case where the ALJ fails
to provide some specific discussion in the section analyzing the RFC finding of why he or she
chose not to incorporate limitations based on non-severe mental impairments despite the fact that
the ALJ has otherwise explained why the evidence does not support any such mental limitations
(and where a review of the evidence itself does not reveal evidence that the ALJ ignored or
misinterpreted) would be to elevate form over function.” Donna L. v. Comm’r of Soc. Sec., 23-
CV-0655, 2024 WL 3738067, at *3 (N.D.N.Y. Aug. 9, 2024) (Suddaby, J.). Such is the case
here.
“Although the Court acknowledges that the ALJ does not discuss anything regarding
Plaintiff’s mental impairments in the section of his decision regarding the RFC finding, such fact
alone does not suggest error, given that the ALJ’s decision must be read as a whole and findings
made in other sections can inform a reviewer of the basis of the ALJ RFC’s finding.” Id. at *1
(citing Anastasia F. v. O’Malley, 23-CV-0637, 2024 WL 1717094, at *4 (N.D.N.Y. Apr. 22,
2024) (Katz, M.J.) (noting that the “ALJ’s decision should be read as a whole, and it would
indeed create needless formality to require the ALJ to repeat his analysis to satisfy [an analytic
requirement]” related to a later step of the sequential evaluation analysis)); see also Desiree S. v.
Comm’r of Soc. Sec., 22-CV-0985, 2023 WL 7688690, at *6 (N.D.N.Y. Sept. 8, 2023) (Peebles,
M.J.) (“In assessing the ALJ’s findings, the decision must be read as a whole.”).
Reading the ALJ’s decision as a whole, including the ALJ’s statement that the RFC
assessment “reflects the degree of limitations the undersigned has found in the paragraph B
mental function analysis[],” T. 16, the Court can glean his rationale underlying the absence of
any mental limitations in the RFC finding. See, e.g., Tricia W. Comm’r of Soc. Sec., 22-CV-794.
2023 WL 4471661, at 3 (N.D.N.Y. June 8, 2023) (Stewart, M.J.) (concluding the ALJ “did
consider the mild limitation” where she specifically indicated that her “residual functional
capacity assessment reflects the degree of limitation I have found in the ‘paragraph B’ mental
function analysis”).
Further, “a finding of a certain degree of limitation in an area of mental functioning when
engaging in the psychiatric review technique prescribed by the regulations for assessing the
severity of a mental impairment does not require any specific corresponding limitation in the
RFC finding.” Maura B. C. v. Comm’r of Soc. Sec., 21-CV-0294, 2022 WL 2789102, at *6
(N.D.N.Y. July 15, 2022) (Peebles, M.J.); see also Robert G. B. v. Comm’r of Soc. Sec., 21-CV-
0291, 2022 WL 4482737, at *7 (N.D.N.Y. Sept. 27, 2022) (Peebles, M.J.) (“The fact that the
ALJ found that plaintiff has a mild limitation in his ability to interact with others does not require
that he find any corresponding limitations in the RFC if specific, work-related limitations are not
supported by the evidence.”) (citing Michelle B. v. Comm’r of Soc. Sec., 20-CV-0332, 2021 WL
3022036, at *7-8 (N.D.N.Y. July 16, 2021) (Hurd, J.)).
Moreover, the ALJ discussed in detail the evidence relevant to Plaintiff’s mental
impairments at step two and evaluated the persuasiveness of the opinion evidence. T. 14-16.
The ALJ’s decision reflects his adequate consideration of the relevant regulatory factors in
weighing Dr. Cameron’s opinion. See id. at 16; see also Dkt. No. 15 at 7-8. Indeed, the ALJ
reasoned Dr. Cameron’s opinions was “not consistent with the findings during the examination
or supported by the record as whole.” Id. at 16. For example, Dr. Cameron observed Plaintiff
had “coherent and goal directed” thought processes and “fair to poor judgment” but then opined
Plaintiff would have “moderate limitation in his ability to use reason and judgment.” T. 526,
528. Dr. Cameron also observed Plaintiff had “intact” attention and concentration but then
opined “moderate to marked limitation in his ability to sustain concentration . . . .” Id. The ALJ
further reasoned Dr. Cameron’s opinion was “ inconsistent with the claimant’s course of
treatment showing no in-patient hospitalization and no significant ongoing psychiatric treatment
and inconsistent with the opinions of the claimant’s treating physician who examined him on
multiple occasions noting normal mood and affect and the normal psychiatric evaluation.” Id. at
16 (internal citations omitted); see, e.g., id. at 565, 569, 575, 577, 583, 585.
While the ALJ could have provided a more detailed explanation for his reasoning with
regard to his consideration of the persuasiveness of Drs. Fassler and Inman’s opinion, see Dkt.
No. 14 at 16-17, Dkt. No. 16 at 4-5, a procedural error in not doing so does not automatically
trigger the necessity of a remand. Edward J. v. Kijakazi, 21-CV-150, 2022 WL 4536257, at *4
(N.D.N.Y. Sept. 28, 2022) (Stewart, M.J.) (citing Ricky L. v. Comm’r of Soc. Sec., 20-CV-7102,
2022 WL 2306965, at *4 (W.D.N.Y. June 27, 2022)). The Court agrees with Defendant that the
ALJ’s analysis of Dr. Fassler’s and Dr. Inman’s opinion was not so deficient to warrant remand.
Dkt. No. 15 at 8-9. Instead, the Commissioner’s decision, when supported by substantial
evidence, can be affirmed “where the ALJ’s consideration of the relevant factors can be gleaned
from the ALJ’s decision as a whole.” John L. M. v. Kijakazi, 21-CV-368, 2022 WL 3500187, at
*2 (N.D.N.Y. Aug. 18, 2022) (Sannes, C.J.); see also Donna L., 2024 WL 3738067, at *3 (“[I]t
has long been accepted in this circuit that the failure of an ALJ to clearly or explicitly discuss
certain pieces of evidence or explain why he or she found certain evidence insufficient to lead to
a conclusion of disability is not harmful error so long as the court is able to glean the rationale of
the ALJ’s decision.”) (citing Enid N. C. O. v. Kijakazi, 21-CV-0191, 2022 WL 4115633, at *2
(N.D.N.Y. Sept. 9, 2022) (Sannes, C.J.) (citing Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d
Cir. 1983))).
Here, the ALJ cited to the exhibits containing the opinions of Drs. Fassler and Inman,
who each provided a very detailed explanation of their findings. T. 16, 111, 122, 131, 173-74.
For example, as set forth above, Dr. Inman stated that he “reviewed all the evidence in the file
and the assessment of 5/7/21. The CE PhD opined moderate to marked to marked limitations,
which is not c/w the evaluation, the other records in file, the absence of psych tx, and ADLs.”
Id. at 151. The ALJ also stated their opinions were consistent with the objective findings and
lack of formal mental health treatment. Id. at 16.
Lastly, “[i]n the absence of any evidence suggesting a greater restriction than the ALJ
discussed or credited, it cannot be said that the ALJ’s failure to include a more explicit
consideration regarding the RFC finding was harmful, even if it could be found to be erroneous.”
Donna L, 2024 WL 3738067, at *2; see Mark E . v. Kijakazi, 20-CV-0425, 2021 WL 4168590, at
*7 (N.D.N.Y. Sept. 14, 2021) (Scullin, J.) (finding that error was harmless where “it would not
alter the outcome of his claim”). It is Plaintiff’s burden to show that greater restrictions are
required by the evidence, and he has not done so in this instance. See Sandra D. v. Comm’r of
Soc. Sec. Admin., 20-CV-1067, 2022 WL 344058, at *5 (N.D.N.Y. Feb. 4, 2022) (Kahn, J.)
(noting that “a plaintiff bears the burden of demonstrating disability and the necessity of a
greater RFC”) (citing Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018)).
B. Physical Impairments
Plaintiff also argues the ALJ’s physical RFC is not supported by substantial evidence
because the ALJ did not properly evaluate the opinions of consultative examiner Najiib Azad,
D.O., and State agency medical consultants J. Lawrence, M.D., and D. Miller, D.O. See
generally, Dkt. No. 14 at 21-23; Dkt. No. 16 at 6-7. For reasons explained below, the Court
finds substantial evidence supports the ALJ’s RFC determination.
On April 15, 2021, Plaintiff was consultatively evaluated by Dr. Azad. T. 531-33.
Plaintiff explained that he sustained a traumatic brain injury and removal of his left eye after a
fireworks accident in 1996. Id. at 531. In 2017, his left ring finger was amputated following a
gunshot wound. Id. Plaintiff also reported headaches, problems with concentrating, and
“get[ting] angry a lot.” Id. He complained of arthritis in the neck that “comes and goes” and
neuropathy in his feet. Id. at 531. Plaintiff lives alone, cooks daily, cleans twice a week, does
weekly laundry, and showers, bathes, and dresses himself daily. Id. He watches television and
listens to the radio. Id. He does not play sports or socialize with friends and does not have a
hobby. Id.
During the examination, Plaintiff appeared to be in no acute distress. Id. at 532. His gait
and stance were normal and he was able to squat 50%. Id. He was able to walk on his heels, but
not on his toes. Id. Plaintiff used no assistive devices, and needed no help changing for the
examination or getting on and off the examination table. Id. He was able to rise from a chair
without difficulty. Id.
The examination of Plaintiff’s right eye was normal and no testing was performed on his
prosthetic left eye. Id. Plaintiff’s physical examination revealed decreased range of motion of
the cervical spine and lumbar spine. Id. Straight leg raising testing was negative bilaterally. Id.
Plaintiff had decreased range of motion of both shoulders. Id. at 533. Plaintiff had full range of
motion of the elbows, forearms, wrists, hips, knees, and ankles bilaterally. Id. Deep tendon
reflexes were physiologic and equal in the upper and lower extremities. Id. Plaintiff had “absent
light touch sensation in his arms and allodynia to gross touch.” Id. His strength was 5/5 in the
upper and lower extremities. Id. Plaintiff’s hand and finger dexterity was intact on the right and
moderate and limited on the left. Id. His grip strength was 5/5 bilaterally. Id. Plaintiff was able
to zip, button, and tie normally. Id. Plaintiff’s prognosis was stable. Id. In a medical source
statement, Dr. Azad opined Plaintiff “will have moderate limitations sitting, standing, walking,
bending, lifting, carrying, no limitations kneeling, moderate limitations reaching, moderate
limitations handling objects.” Id. The ALJ found Dr. Azad’s opinion somewhat persuasive. Id.
at 19.
On May 6, 2021, Dr. Lawrence reviewed the record, including Dr. Azad’s opinion, and
determined Plaintiff is able to lift and/or carry 50 pounds occasionally and 25 pounds frequently;
stand and/or walk about 6 hours during an 8-hour workday; sit about 6 hours during an 8-hour
workday; push and/or pull with the above weight limits; could occasionally climb ladders, ropes,
and scaffolds; has no limitation with the right eye and limited (no) vision in the left eye due to
left eye prosthesis; and must avoid even moderate exposure to hazards (machinery, heights, etc.).
Id. at 113-17. On July 30, 2021, Dr. Miller affirmed the opinion of Dr. Lawrence. Id. at 155-59.
The ALJ found Drs. Lawrence and Miller’s opinions somewhat persuasive. Id. at 19.
Here, contrary to Plaintiff’s argument, the ALJ reasonably found Dr. Azad’s opinion to
be somewhat persuasive. Dkt. No. 14 at 21-22; Dkt. No. 15 at 9-10. The ALJ explained Dr.
Azad “did not diagnose the claimant with any impairment involving the arms or shoulders and
the restricted range of motion of the upper extremities is inconsistent with the other records in
the file. While the opinion is generally supported by the findings during the examination, the
opinion lacks specifics that would render the opinion more persuasive.” Id.
For example, the ALJ noted treatment and examination notes reflect Plaintiff has good
strength and sensation has been normal in the upper and lower extremities. Id. at 19, 560, 574,
577, 583, 585, 586. Treatment records routinely reflect “normal” or “full” range of motion of
Plaintiff’s upper extremities and do not mention any upper extremity impairments. Id. at 19,
572, 574, 577, 583, 585, 604, 607, 610, 611. The record indicates Plaintiff does dishes and
laundry, “suggesting a significant ability to perform fine and gross manipulations as well as use
of the upper extremities.” Id. at 19, 58, 527, 531. The ALJ also noted Plaintiff’s reported daily
activities, such as dressing, bathing, driving, and riding a 4-wheeler suggest that the claimant is
not as limited as alleged. Id. at 19, 527, 531.
As noted above and in accordance with the regulations, the ALJ was required to explain
how he considered the supportability and consistency factors of a medical source’s opinions or
prior administrative medical findings in the decision. 20 C.F.R. §§ 404.1520(c)(b)(2),
416.920c(b)(2). The ALJ did that here and Plaintiff’s argument that the ALJ improperly
evaluated Dr. Azad’s opinion is without merit. Dkt. No. 14 at 24-26.
Additionally, the Court does not find the ALJ rejected Dr. Azad’s opinion in favor of his
own lay judgment. Dkt. No. 14 at 21-22. Rather, the ALJ also found Dr. Lawrence’s and Dr.
Miller’s opinions to be somewhat persuasive, both of whom reviewed the available record
including Dr. Azad’s opinion, and assessed no reaching or manipulative limitations. Dkt. No. 15
at 10; T. 19, 102, 113-18, 133-38, 154-59, 164, 176-81. When the consultative examiner and
reviewing physicians reached different conclusions with reaching and handling limitations, this
created a conflict in the record. It is the province of the ALJ to resolve genuine conflicts in the
record. Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). However, the Commissioner need
not “reconcile explicitly every shred of medical testimony.” Galiotti v. Astrue, 266 F. App’x 66,
66 (2d Cir. 2008) (citing Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)).
In any event, moderate limitations as opined by Dr. Azad are not inconsistent with light
work. See Amanda L. v. Saul, 18-CV-01221, 2019 WL 5865388, at *8 n.3 (N.D.N.Y. Nov. 8,
2019) (Mordue, J.) (“[M]oderate limitations to repetitive lifting, bending, reaching, pushing,
pulling, or carrying are not inconsistent with an RFC for a full range of light work.”) (internal
quotation marks and citation omitted); Moore v. Comm’r of Soc. Sec., 16-CV-270, 2017 WL
1323460, at *8 (N.D.N.Y. Apr. 10, 2017) (Stewart, M.J.) (“[M]oderate limitations for sitting,
standing, walking, bending, climbing stairs, and lifting or carrying heavy objects . . . [are]
consistent with light work.”); Martinez v. Comm’r of Soc. Sec., Civ. No 13-159, 2016 WL
6885181, at *13 (S.D.N.Y. Oct. 5, 2016) (“[M]oderate restrictions for lifting, pushing, pulling,
overhead reaching, stooping, squatting, prolonged standing, and prolonged walking . . . are
consistent with an RFC for light work.”); Thola J.W. v. Comm’r of Soc. Sec., 19-CV-1068, 2021
WL 981589, at *2 (N.D.N.Y. Mar. 16, 2021) (Sharpe, J.) (finding RFC for a full range of light
work was consistent with moderate limitations in lifting, carrying, pushing, and pulling).
Plaintiff also argues the ALJ failed to articulate the supportability and consistency factors
when evaluating Dr. Lawrence’s and Dr. Miller’s opinions. Dkt. No. 14 at 22. But as the
Commissioner points out, the ALJ referred to the exhibits containing the opinions of Drs.
Lawrence and Miller, who each provided a detailed explanation of their findings and are
consistent with each other. Dkt. No. 15 at 10; T. 16, 102, 113-18, 133-38, 142, 154-59, 164,
176-81; see, e.g., Holly R. v. Comm’r of Soc. Sec., 23-CV-0132, 2023 WL 8797938, at *2
(W.D.N.Y. Dec. 19, 2023). Indeed, Drs. Lawrence and Miller explained Dr. Azad’s “opinion
relies heavily on the subjective report of symptoms and limitations provided by the individual,
and the totality of the evidence does not support the opinion. The CE examiner`s opinion is an
overestimate of the severity of the individual’s restrictions/limitations.” T. 118, 138.
The ALJ discussed the medical records and the opinions upon which he relied to assess
Plaintiff’s RFC. See id. at 19. The RFC largely tracks the opinions of record the ALJ found
persuasive and the ALJ was not obligated to adopt every limitation set forth in a medical opinion
he found persuasive. See Edward J., 2022 WL 4536257, at *5. Nor, contrary to Plaintiff’s
argument, was the ALJ required to accept Plaintiff’s subjective complaints regarding his
limitations. See Dkt. No. 14 at 22-23; Dkt. No. 15 at 10-14. The ALJ considered Plaintiff’s
testimony at the hearing and the above opinions and reasonably determined Plaintiff retained the
RFC to perform light work with the additional limitations.
Based upon a careful review of the record, and affording the ALJ’s decision the
appropriate deference, the Court concludes substantial evidence supports the ALJ’s RFC
determination. Accordingly, remand is not necessary.
VI. CONCLUSION
ACCORDINGLY, it is hereby
RECOMMENDED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 14)
be DENIED, and it is further
RECOMMENDED that Defendant’s motion for judgment on the pleadings (Dkt. No.
15) be GRANTED, and the Commissioner’s decision be affirmed.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file
written objections to the foregoing report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72.
Dated: August 30, 2024
Syracuse, New York
fa Wiley Dancks :
United States Magistrate Judge
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