Clark v. O'Malley

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

___________________________________________

LISA MARIE C.,

Plaintiff,

v. 5:23-cv-1025

(GTS/TWD)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

HILLER COMERFORD JUSTIN M. GOLDSTEIN, ESQ.

INJURY & DISABILITY LAW

6000 North Bailey Avenue – Suite 1a

Amherst, NY 14226

Counsel for Plaintiff

SOCIAL SECURITY ADMINISTRATION GEOFFREY M. PETERS, ESQ.

OFFICE OF THE GENERAL COUNSEL

6410 Security Boulevard

Baltimore, MD 21235

Counsel for Defendant

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

REPORT AND RECOMMENDATION

I. INTRODUCTION

Lisa Marie C. (“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 her applications for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”). 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. 11, 12. Plaintiff filed a

reply brief. Dkt. No. 13. For the reasons set forth below, the Court recommends Plaintiff’s

motion for judgment on the pleadings be denied and Defendant’s motion be granted.

II. BACKGROUND

Plaintiff was born in 1968, obtained her GED, and previously worked as a cashier,

receptionist/secretary, Certified Nurse Assistant, health care coordinator, and promoter/sales. T.

269-70, 275.1 She protectively filed her applications for DIB and SSI on June 1, 2021. Id. at

243-55. Plaintiff alleged disability beginning November 2, 2020, due to fibromyalgia, chronic

back pain, daily headaches, anxiety, sadness, panic attacks, interrupted sleep, Irritable Bowel

Syndrome, chronic constipation, diverticulitis, chronic shoulder issues, and plantar fasciitis. Id.

at 268. Her claims were initially denied on October 12, 2021, and upon reconsideration on

November 30, 2021, after which Plaintiff requested a hearing before an Administrative Law

Judge (“ALJ”). Id. at 86-88, 119, 126-175.

Plaintiff appeared and testified at a telephone hearing before ALJ Kenneth Theurer on

June 1, 2022. Id. at 30-57. Vocational Expert (“VE”) Peter Manzi also testified. Id. On June

13, 2022, the ALJ issued a written decision finding Plaintiff was not disabled under the Social

Security Act. Id. at 13-24. On June 27, 2023, the Appeals Council denied review, making the

1 The Administrative Transcript is found at Dkt. No. 8. 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.

ALJ’s decision the final decision of the Commissioner. Id. at 1-3. This appeal followed. Dkt.

No. 1.

III. RELEVANT 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

2 While the SSI 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).

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.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117,

120 (2d Cir. 2008); 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 promulgated by the Commissioner

for adjudicating disability claims. T. 13-24. At step one, the ALJ found Plaintiff meets the

insured status requirements of the Social Security Act through December 31, 2024, and has not

engaged in substantial gainful activity since November 2, 2020, the alleged onset date. Id. at 16.

Proceeding to step two, the ALJ determined Plaintiff has the following severe impairments:

“degenerative disc disease of the lumbar spine, osteoarthritis of the bilateral knees, tendinosis of

the shoulder, a heel spur, fibromyalgia, DVT, obesity, a depressive disorder and an anxiety

disorder.” Id. At step three, the ALJ found Plaintiff does not have an impairment or

combination of impairments that meets or medically equals the severity of the listed impairments

in 20 C.F.R. § 404, Subpart P, Appendix 1. Id. at 17.

The ALJ next determined Plaintiff has the residual functional capacity (“RFC”) to

perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with additional

limitations. Id. at 19. The ALJ found Plaintiff could “only occasionally climb

ladders/ropes/scaffolds, climb ramps/stairs, balance, stoop, kneel, crouch and crawl. She can

perform only occasional overhead reaching with the left, upper extremity. The claimant is

limited to simple, routine and repetitive tasks in a work environment involving only simple,

work-related decisions, with few, if any, workplace changes. She can have no more than

occasional contact with supervisors, coworkers and the public.” Id. at 19. At step four, the ALJ

determined Plaintiff could not perform any of her past relevant work. Id. at 22. At step five,

based on the testimony of the VE, considering Plaintiff’s age, education, work experience, and

RFC, the ALJ concluded there were jobs Plaintiff could perform in significant numbers in the

national economy such as garment folder, linen grader, and bagger. Id. at 23-24.

Accordingly, the ALJ determined Plaintiff was not disabled, as defined by the Social

Security Act, from the alleged onset date, November 2, 2020, through the date of decision, June

13, 2022. Id. at 24.

V. DISCUSSION

Plaintiff argues “[t]he ALJ erred when failing to identify substantial evidence supporting

the residual functional capacity finding and erred when failing to evaluate the medical opinions

and symptomology pursuant to the appropriate legal standards.” Dkt. No. 11 at 10-25. In

response, Defendant argues substantial evidence supports the ALJ’s RFC determination and the

ALJ properly evaluated the opinion evidence. Dkt. No. 12 at 4-24.

The RFC is an assessment of “the most [Plaintiff] can still do despite [her] 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) (“An RFC finding

is administrative in nature, not medical, and its determination is within the province of the ALJ,

as the Commissioner’s regulations make clear.”). 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). The ALJ is

responsible for assessing Plaintiff’s RFC based on a review of relevant medical and non-medical

evidence, including any statement about what Plaintiff can still do, provided by any medical

source. 20 C.F.R. §§ 404.1527, 404.1527, 404.1545(a)(3), 404.1546(c), 416.927(d),

416.945(a)(3), 416.946(c). 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).

In making the RFC determination, the ALJ stated he considered all of Plaintiff’s

symptoms, and the extent to which those symptoms could reasonably be accepted as consistent

with the objective medical evidence and other evidence, based on the requirements of 20 C.F.R.

§§ 404.1529 and 416.929 and SSR 16-3p. T. 19-20. The ALJ further stated he considered

opinion evidence and prior administrative medical findings pursuant to 20 C.F.R. §§ 404.1520c

and 416.920c. Id. at 20. The ALJ also found Plaintiff’s medically determinable impairments

could reasonably be expected to cause her alleged symptoms, but that Plaintiff’s statements

regarding the intensity, persistence, and limiting effects of those symptoms were not entirely

consistent with the medical evidence and other evidence in the record. Id. at 21.

Plaintiff more specifically argues the ALJ erred in failing to follow the regulations when

evaluating the opinion evidence of State agency reviewers and consultants regarding Plaintiff’s

physical impairments and he cherry-picked various findings in the opinions to support his

determination. Dkt. No. 11 at 13-20. Plaintiff also asserts the ALJ erred in evaluating the

opinions of psychological consultants and did not credit Plaintiff’s complaints. Id. at 20-25.

A. Standards for Evaluation of Opinion Evidence

The regulations regarding the evaluation of medical evidence have been amended for

claims filed after March 27, 2017,3 and several of the prior Social Security Rulings, including

SSR 96-2p, have been rescinded. According to the updated regulations, the Commissioner “will

no longer give any specific evidentiary weight to medical opinions; this includes giving

controlling weight to any medical opinion.” Revisions to Rules Regarding the Evaluation of

Medical Evidence (“Revisions to Rules”), 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68 (Jan.

18, 2017), see 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the Commissioner 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).

Although the new regulations eliminate the perceived hierarchy of medical sources,

deference to specific medical opinions, and assigning “weight” to a medical opinion, the ALJ

must still “articulate how [he or she] considered the medical opinions” and “how persuasive [he

or she] find[s] all of the medical opinions.” Id. at §§ 404.1520c(a) and (b)(1), 416.920c(a) and

(b)(1). The two “most important factors for determining the persuasiveness of medical opinions

are consistency and supportability,” which are the “same factors” forming the foundation of the

previous treating source rule. Revisions to Rules, 82 Fed. Reg. 5844-01 at 5853.

3 Plaintiff’s application was dated June 1, 2021. T. 243-55. Thus, the new regulations apply in

her case.

An ALJ is specifically required to “explain how [he or she] considered the supportability

and consistency factors” for a medical opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).

With respect to “supportability,” the new regulations provide “[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). The regulations provide 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).

Under the current regulations an ALJ must consider, but need not explicitly discuss, the

three remaining factors in determining the persuasiveness of a medical source’s opinion. Id. §§

404.1520c(b)(2), 416.920c(b)(2). However, where the ALJ has found two or more medical

opinions to be equally well supported and consistent with the record, but not exactly the same,

the ALJ must articulate how he or she considered those factors contained in paragraphs (c)(3)

through (c)(5). Id. §§ 404.1520c(b)(3), 416.920c(b)(3).

B. Physical Limitations and Related Opinion Evidence

State agency consultant Dr. Gallagher reviewed the records and rendered an opinion on

October 7, 2021, that Plaintiff had the RFC to perform a range of light work. T. 65-69, 79-83.

Specifically, Dr. Gallagher opined Plaintiff could occasionally lift and/or carry 20 pounds,

frequently lift and/or carry 10 pounds, stand and/or walk for a total of six hours in an eight-hour

workday, and sit for six hours in an eight-hour workday. Id. at 65-66, 79-80. Further, the

reviewer opined Plaintiff was unlimited in pushing and/or pulling other than the lifting and

carrying restrictions, and could occasionally climb ramps, stairs, ladders, ropes, and scaffolds;

she could occasionally stoop, kneel, crouch, and crawl. Id. at 66-67, 80-81. Dr. Gallagher found

Plaintiff limited to occasional left overhead reaching, but unlimited in handling, fingering, and

feeling. Id. at 67, 81. On reconsideration in a report dated November 29, 2021, Dr. Abueg

corroborated the opinions of Dr. Gallagher. Id. at 97-100, 112-115.

The ALJ found these opinions persuasive because they were supported by citations to the

record showing Plaintiff had “[m]ild degenerative changes of the lumbar spine, mild diffuse

rotator cuff tendinosis, mild knee issues and history of a DVT.” Id. at 20; see also id. at 68, 82,

100, 115. The ALJ further stated these opinions were consistent with other treatment records

showing Plaintiff had a normal gait, the shoulder issues improved with treatment, and the DVT

was successfully treated. Id. at 20; see also id. at 355, 488, 502, 507, 546, 566. The ALJ also

pointed out Dr. Lorensen’s exam, as set forth more fully below, showed only “one trigger point,

as well as full strength in the upper and lower extremities.” Id. at 20; see also id. at 489. In

expanding on the important factors of supportability and consistency, the ALJ identified

Plaintiff’s conservative course of treatment, confirmed these medical consultants reviewed the

record, and explained they have program and professional expertise. Id. at 20.

Consultative examiner Dr. Lorensen conducted an internal medicine examination of

Plaintiff on October 1, 2021. Id. at 487-90. After listing all of Plaintiff’s complaints, Dr.

Lorensen noted Plaintiff’s reported activities of daily living which included cooking three to four

days a week, cleaning two times a week, and doing laundry and shopping once a week. Id. at

488. She showered three times a week and watched TV and listened to the radio. Id. On exam,

Plaintiff was not in any acute distress; she had a normal gait and stance; she did not need any

assistive device and needed no help changing for the exam or getting on and off the exam table;

and she was able to rise from a chair without difficulty. Id. at 488. However, she could not walk

on heels and toes and was unable to squat. Id.

The musculoskeletal exam revealed Plaintiff had a full range of motion of the cervical

spine, right shoulder, elbows, forearms, wrists, fingers, and ankles. Id. at 489. Her thoracic

spine exam was normal, and she exhibited a reduced range of lumbar flexion, but otherwise

showed a full range of motion in her lumbar spine and straight leg raising was negative

bilaterally. Id. Plaintiff had a reduced range of motion in her left shoulder, hips and knees, but

no sensory deficits were noted, and she exhibited 5/5 in strength in the upper and lower

extremities with no muscle atrophy. Id. Hand and finger dexterity were intact, and her grip

strength was 5/5 bilaterally. Id. Deep tendon reflexes were physiologic and equal in the upper

and lower extremities; she had full range of motion in her ankles; and her joints were without

any deformity, swelling, or effusion. Id. She exhibited one positive trigger point for

fibromyalgia. Id.

Dr. Lorensen diagnosed Plaintiff with fibromyalgia, migraines, problems with

constipation, back and left shoulder pain, obesity, and DVT in the left leg. Id. at 490.

Ultimately, Dr. Lorensen opined that Plaintiff had “[n]o gross limitations for sitting, standing,

walking, and using the hands. Mild to moderate limitations for bending, lifting, carrying,

reaching, and climbing.” Id.

The ALJ found Dr. Lorensen’s opinion persuasive after considering the most important

factors of supportability and consistency. Id. at 20-21. As to supportability, the ALJ noted the

opinion was based on Dr. Lorensen’s examination of Plaintiff as outlined above which showed

mostly normal findings, with somewhat reduced range of motion of the left shoulder, hips, and

knees. Id. He also noted it is consistent with the opinions of medical consultants and Plaintiff’s

conservative course of treatment. Id. at 21. While he did not list every finding of Dr. Lorensen’s

exam, he was not required to do so. Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012)

(“An ALJ does not have to state on the record every reason justifying a decision” or “discuss

every piece of evidence submitted.”) (citation omitted). “An ALJ’s failure to cite specific

evidence does not indicate that such evidence was not considered.” Id. (quoting Black v. Apfel,

143 F.3d 383, 386 (8th Cir.1998)).

The ALJ, in noting Dr. Lorensen’s opinion was consistent with the other opinions of the

State agency reviewers, provided further support for the persuasiveness of the opinion. The ALJ

is required to formulate Plaintiff’s RFC based on the record as a whole. See Trepanier, 752 F.

App’x at 79. As stated in the regulations, an RFC finding is administrative in nature, not

medical, and its determination is within the province of the ALJ. 20 C.F.R. §§ 404.1527(d)(2),

416.927(d)(2). Indeed, it is the responsibility of the ALJ to determine Plaintiff’s RFC based on

all the evidence in the record including, but not limited to, statements provided by medical

sources. Id. §§ 404.1527(d), 404.1545(a)(3), 404.1546(c), 416.927(d), 416.945(a)(3),

416.946(c). Moreover, “[a]n ALJ is entitled to rely on the opinions of both examining and non-

examining State agency medical consultants, because those consultants are deemed to be

qualified experts in the field of social security disability.” Angela H.-M. v. Comm’r of Soc. Sec.,

631 F. Supp. 3d 1, 9 (W.D.N.Y. 2022) (citation and emphasis in original omitted); see also, e.g.,

Schlichting v. Astrue, 11 F. Supp. 3d 190, 204 (N.D.N.Y. 2012) (citations omitted) (stating it is

“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”).

Plaintiff argues the ALJ cherry picked evidence in the record, mischaracterized the

medical records, and “[f]ailed to account for Plaintiff’s cyclical symptomology based upon the

administration of injections every 3 months.” Dkt. No. 11 at 13-16. To the contrary, the ALJ

indicated that the opinions of Drs. Gallagher, Abueg, and Lorensen were consistent with the

evidence as a whole. T. 20-21. While Plaintiff exhibited an antalgic gait upon two examinations

in 2021 when seen by treating orthopedic provider, Dr. Ortiz, id. at 356, 577, Dr. Ortiz does not

chart any issues with her gait on any other treatment encounters, many of which were for

complaints about her knees, legs, and feet. Id. at 339, 348, 365, 371, 378, 382, 386, 390, 399,

555, 561, 566, 571, 583-84. “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., No. 3:23-CV-1106 (DJS), 2024

WL 3846069, at *4 (N.Y.N.D. Aug. 16, 2024) (citing Dumas v. Schweiker, 712 F.2d 1545, 1553

(2d Cir. 1983)).

Additionally, bilateral knee x-rays showed only mild to moderate degenerative changes.

T. 360-61, 586. Dr. Ortiz specifically noted on December 21, 2021, that new bilateral knee x-

rays “revealed no progression of her minimal to moderate degenerative changes.” Id. at 566.

Examinations by other treatment providers during the relevant period revealed a normal gait and

full strength in all her extremities. Id. at 409, 417, 488, 489, 502, 529, 536, 546.

The record also shows Plaintiff’s shoulder improved with treatment. Id. at 355 (left

shoulder dysfunction has improved “tremendously”), 566 (left shoulder injection helped

“wonderfully”). Her DVT improved with medication. Id. at 507 (leg does not bother her and

she is doing well on medication; musculoskeletal exam showed normal range of motion and she

exhibited no swelling in her lower extremities). She had one fibromyalgia trigger point during

the exam by Dr. Lorensen. Id. at 488-89. In general, her treatment was conservative consisting

of medication and steroid injections. Id. at 45, 463, 487-89, 507, 566; see also id. at 348

(Plaintiff did not want surgery and “will continue with her other conservative modalities”).

Plaintiff essentially argues the ALJ failed to properly articulate the supportability and

consistency factors when evaluating the opinions of Drs. Gallagher, Abueg, and Lorensen. Dkt.

No. 11 at 13-20; Dkt. No. 13 at 1-4. The Court disagrees. As the Commissioner points out, the

ALJ referred to the record containing the opinions of these physicians, who each provided a

detailed explanation of their findings and are consistent with each other. Dkt. No. 12 at 8-11; T.

20-21; see, e.g., Holly R. v. Comm’r of Soc. Sec., No. 23-CV-0132, 2023 WL 8797938, at *2

(W.D.N.Y. Dec. 19, 2023). The ALJ discussed the medical records and the opinions upon which

he relied to assess Plaintiff’s RFC. See T. 20-22. 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. v. Kijakazi, No. 5:21-CV-150 (DJS), 2022

WL 4536257, at *5 (N.D.N.Y. Sept. 28, 2022). Nor, contrary to Plaintiff’s argument, was the

ALJ required to accept Plaintiff’s subjective complaints regarding her limitations. See Dkt. No.

11 at 19-20. 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.

For instance, the ALJ clearly explained his determination that Plaintiff could perform

light work was based on the opinions of Drs. Gallagher, Abueg, and Lorensen. T. 20. He went

on to explain why those reports were persuasive and showed how the medical and other evidence

of record supported a light RFC. Id. at 21-22. Moreover, the ALJ clearly considered Plaintiff’s

obesity finding it a severe medical impairment and explicitly considered her body mass index.

Id. at 16-17. He considered her complaints of chronic pain but found them not entirely

consistent with the medical evidence. Id. at 20-21. The records show Plaintiff obtained relief

from pain with the conservative treatment of injections. Id. at 339, 348, 355, 371, 378, 382, 555,

577 (plantar fascia pain improved and resolved with injections); 339, 348, 371, 378, 555, 561

(ankle injections improved pain and “helped wonderfully”); 343, 355, 371-72, 543, 566, 571,

584 (shoulder injections provided pain relief); 356, 464, 555, 577 (knee injections relieved pain).

Thus, Plaintiff’s pain improved with treatment, although it did not completely disappear, and the

RFC accounts for the complaints of pain by limiting Plaintiff to light work with restrictions of

occasionally climbing, balancing, stooping, kneeling, crouching, crawling, and overhead

reaching with the left arm. Id. at 19.

Moreover, the ALJ properly explained how Plaintiff’s complaints were inconsistent with

the record as a whole. Id. at 21. For example, imaging of lumbar spine and knees generally

showed mild degenerative changes. Id. at 360-61, 481-82. X-rays of her left foot and ankle

showed a bone spur. Id. at 455, 526. An x-ray of her right ankle showed mild soft tissue

swelling around the joint. Id. at 454. Dr. Lorensen’s exam of Plaintiff showed nearly full range

of motion of her back and straight leg raising was normal. Id. at 489. While her gait was

antalgic on only two exams out of the many encounters with Dr. Ortiz, id. at 356, 577, she

otherwise exhibited a normal gait at Dr. Lorensen’s exam and on two other examinations by

other providers. Id. at 488, 502, 546. Her shoulder improved with treatment, and she exhibited

full range of motion. Id. at 355, 371. She had full range of motion in her neck. Id. at 473, 483.

Thus, the ALJ committed no error in this regard since conflicts in the record are for the

Commissioner to resolve. Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).

In sum, the Court finds the ALJ properly evaluated the opinion evidence regarding

Plaintiff’s physical limitations because Plaintiff has not shown any evidence of record or other

opinion that would support greater limitations. See Beaman v. Comm’r of Soc. Sec., No. 1:18-

CV-01344, 2020 WL 473618, at *6 (W.D.N.Y. 2020) (“Ultimately, it is Plaintiff’s burden to

prove a more restrictive RFC than the RFC assessed by the ALJ.”). Plaintiff essentially

disagrees with the ALJ’s weighing of the evidence, and it is not the providence of the Court to

reweigh the evidence. Krull v. Colvin, 669 F. App’x 31, 32 (2d Cir. 2016) (summary order)

(deferential standard of review prevents the Court from reweighing the evidence). However, as

noted, it is Plaintiff’s burden to show that greater restrictions are required by the evidence, and

she has not done so in this instance. See Sandra D. v. Comm’r of Soc. Sec. Admin., No. 5:20-

CV-1067 (LEK/ATB), 2022 WL 344058, at *5 (N.D.N.Y. Feb. 4, 2022) (noting that “a plaintiff

bears the burden of demonstrating disability and the necessity of a greater RFC”) (citing Smith,

740 F. App’x at 726).

Accordingly, the Court finds no error in the ALJ’s evaluation of the opinion evidence

regarding Plaintiff’s physical limitations. The ALJ applied the correct legal standards, and the

RFC is supported by substantial evidence. Hence, remand is not required on this basis.

C. Mental Limitations and Related Opinions Evidence

Regarding Plaintiff’s mental RFC, the ALJ found Plaintiff could perform “simple, routine

and repetitive tasks in a work environment involving only simple work-related decisions, with

few, if any, workplace changes. She can have no more than occasional contact with supervisors,

coworkers and the public.” T. 19. Plaintiff challenges this RFC by arguing the ALJ erred in

finding the opinions of Dr. Shapiro and the State agency reviewing psychological consultants

less persuasive because the ALJ did not credit Plaintiff’s allegations of debilitating limitations;

he rejected the more limiting parts of Dr. Shapiro’s opinion and relied on his own lay opinion;

and he did not explain his findings. Dkt. No. 11 at 20-25.

In response, at the outset, the Commissioner notes that Plaintiff only vaguely and

superficially argues that the ALJ erred in evaluating the mental prior administrative findings of

Drs. Bhutwala and Inmann. Dkt. No. 12 at 19; see also Dkt. No. 11 at 20-25. As such, the

Commissioner argues Plaintiff has waived any objections to the ALJ’s consideration of these

State agency reviewers’ opinions. Dkt. No. 12 at 19. The Court agrees with the Commissioner

in this regard since issues not raised in the brief are waived. See generally N.D.N.Y. General

Order No. 18C(1)D (“The issues before the Court are limited to the issues properly raised in the

briefs.”). However, the Court finds this inconsequential since the reason stated by the ALJ in

finding their opinions less persuasive is because they found non-severe mental impairments and

the ALJ found sufficient evidence that Plaintiff had a severe mental impairment at step two of

the sequential review based upon Plaintiff’s subjective complaints. T. 17, 22; see also id. at 63,

77-78, 94-95, 109-10.

More to the point, Plaintiff argues the ALJ did not credit her allegations of debilitating

mental limitations and “erred when rejecting the more limiting portions of Dr. Shapiro’s opinion

and when relying on his own lay opinion to formulate the RFC finding.” Dkt. No. 11 at 21. As

to the opinion of Dr. Shapiro, the ALJ found it “less persuasive” because it was not consistent

with her own findings on examination of Plaintiff. T. 22. In further addressing the

supportability and consistency factors, the ALJ noted Plaintiff did not have any record of

inpatient or outpatient mental health treatment. Id.

At the evaluation, Dr. Shapiro noted in Plaintiff’s psychiatric history that Plaintiff had

never been hospitalized for psychiatric problems, never had any outpatient mental health

treatment, and was not currently receiving mental health treatment, nor was she on any

psychiatric medications. Id. at 492. Plaintiff subjectively indicated she had difficulty falling and

staying asleep, had a variable appetite, and was depressed, unmotivated, and lethargic. Id. She

reported having dysphoric moods, tended to avoid others except for her immediate family, and

she “complained of short-term memory deficits and difficulty concentrating.” Id. at 492-93. She

denied substance abuse, legal issues, and any family history of psychiatric, substance abuse, or

learning problems. Id. at 493.

Upon examination, she was cooperative and “[h]er manner of relating, social skills, and

overall presentation was adequate.” Id. Her appearance was normal; she was well-groomed; her

posture and motor behavior were normal; and her eye contact was appropriate. Id. Her speech

and thought processes were normal, but her affect and mood were anxious. Id. Her sensorium

was clear; she was properly oriented in all three spheres; her attention and concentration were

intact; and she could do counting, simple calculations, “and serial 7s from 100 on her fingers.”

Id. at 494. Her recent and remote memory skills were intact, and she was able to recall three out

of three objects immediately and after a delay, and she could “accurately recall 6 digits forward

and 4 digits backward.” Id. She was functioning in the low range of intelligence and her

“[g]eneral fund of information was a little bit below average.” Id. Her insight and judgment

were fair, and Dr. Shapiro deemed “[t]he results of the mental status evaluation consistent . . .

with her vocational and educational history.” Id. With regard to her activities of daily living,

Plaintiff reported she could dress, bathe and groom herself although she sometimes needed help

from her daughter if she felt dizzy. Id. She drove, prepared food three-to-four times a week,

cleaned three times a week, and did laundry and shopped once per week. Id. She manages her

money, but her daughter sometimes checks it for her; and she only socializes with her ex-

husband, her daughters, her granddaughters, and some friends. Id. She has a good relationship

with her family, has no hobbies or special interests, and she spends her days “watching her

granddaughter play, watching TV, and listening to the radio.” Id.

In accordance with this evaluation, Dr. Shapiro opined Plaintiff had no limitations in

“understanding, remembering, or applying simple or complex directions and instructions or

using reason or judgment to make work-related decisions.” Id. at 495. Dr. Shapiro also found

Plaintiff had no limitations in sustaining an ordinary routine and regular attendance at work, in

maintaining personal hygiene, or in awareness of normal hazards and taking appropriate

precautions. Id. In sustaining concentration and performing at a consistent pace, Dr. Shapiro

noted a mild limitation. Id. Plaintiff had a “[m]oderate limitation interacting appropriately with

supervisors, coworkers, and the public” and a “[m]oderate to marked limitation regulating

emotions, controlling behavior, and maintaining well-being.” Id.

As stated above, the ALJ found Dr. Shapiro’s opinion “less persuasive” based upon the

most important factors of supportability and consistency. Id. at 22; see also 20 C.F.R. §§

404.1520c(c)(1) and (2), 416.920c(c)(1) and (2). The ALJ noted Dr. Shapiro’s opinions were not

consistent with her own findings on exam regarding the stated moderate limitations interacting

with others and the moderate-to-marked limitation regulating emotions, controlling behavior, and

maintaining well-being. T. 22. In that regard, Dr. Shapiro specifically found Plaintiff’s

“demeanor and responsiveness to questions was cooperative. Her manner of relating, social

skills, and overall presentation were adequate.” Id. at 493. While Dr. Shapiro found Plaintiff’s

mood and affect anxious, the remainder of the exam was largely normal albeit with fair insight

and judgment. Id. at 493-94. Dr. Shapiro also noted Plaintiff was not on any psychiatric

medication and had never had any inpatient or outpatient mental health treatment, including at

the time of the consultative exam. Id. at 92.

Moreover, Dr. Shapiro’s opinion regarding moderate limitations in interacting with others

and moderate-to-marked limitations in regulating emotions, controlling behavior and maintaining

well-being is inconsistent with the record as a whole. Plaintiff had no mental health treatment

during the relevant period, and there are numerous findings in the treatment records of normal

psychiatric exams. See id. at 429 (“Fluent speech” and “Psych: Normal Affect and Good eye

contact. Organized, logical, and fluent”); 445 (“Psych Normal: Normal Affect”); 502 (“Normal

affect”); 529 (“Fluent speech” and “Psych Normal: Normal Affect”); 536 (same); 546 (“Psych

Normal; Normal Affect”). She is described as a “pleasant woman” when interacting with her

orthopedic treating physician, Dr. Diaz. Id. at 355, 386, 560. In her interactions with her

primary care provider, Dr. Primm, she consistently “appears healthy” on constitutional exam

findings. Id. at 457, 464, 467, 471, 476, 484, 600, 603, 606, 609, 612, 619. Plaintiff complained

of feeling that her “depression is worsening” at only one treatment encounter with Dr. Primm, id.

at 611, and that is the only encounter where a depressive disorder is listed in Dr. Primm’s

assessments. Compare id. at 612, with id. at 457, 464, 467, 472, 476-77, 484-85, 600, 603, 606-

07, 609, 615-16, 620. Plaintiff confirmed at her hearing that she was not receiving any mental

health treatment. Id. at 48.

Moreover, although the ALJ found Dr. Shapiro’s opinion “less persuasive,” the ALJ

established an RFC that restricts Plaintiff to “simple, routine and repetitive tasks in a work

environment involving only simple, work-related decisions” and she could “have no more than

occasional contact with supervisors, coworkers and the public.” Id. at 19. Thus, the moderate

limitations in interacting with others, and moderate-to-marked limitations in regulating emotions,

controlling behavior, and maintaining well-being opined by Dr. Shapiro were indeed

incorporated into the RFC. Accordingly, the ALJ properly discharged his duty to account for

these mental limitations by limiting Plaintiff to simple tasks with occasional contact with others.

See, e.g., Alexandrea R.R. v. Berryhill, No. 5:18-CV-121 (DNH), 2019 WL 2269854, at *7

(N.D.N.Y. May 28, 2019) (finding the ALJ properly assessed several limitations in the plaintiff’s

ability to perform work-related mental tasks by including a number of specific restrictions in

recognition of plaintiff’s ability to handle work-related stress). Plaintiff has failed to explain

why additional limitations are required.

For the forgoing reasons, the Court finds the ALJ properly considered the medical

opinions concerning Plaintiff’s mental limitations. The ALJ incorporated the findings of

consultative examiner Dr. Shapiro into the RFC, and the ALJ’s decision reflects adequate

consideration of the record as a whole. Desiree S. v. Comm’r of Soc. Sec., No. 3:22-CV-0985

(MAD/DEP), 2023 WL 7688690, at *6 (N.D.N.Y. Sept. 8, 2023) (“In assessing the ALJ’s

findings, the decision must be read as a whole.”), report and recommendation adopted, 2023 WL

6578958 (N.D.N.Y. Oct. 10, 2023).

Overall, 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. 11)

be DENIED, and it is further

RECOMMENDED that Defendant’s motion for judgment on the pleadings (Dkt. No.

12) 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: September 3, 2024

Syracuse, New York

fa Wiley Dancks :

United States Magistrate Judge

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