# Vargas Jr. v. O'Malley

> District Court, N.D. New York · March 21, 2025

URL: https://www.frixlaw.com/law-library/cases/10829607

## Case

- **Court:** District Court, N.D. New York
- **Decided:** March 21, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10829607

## How later opinions describe it (automated extraction)

- noting that the ALJ properly relied in the absence of finding in the record regarding the claimant’s alleged inability to sit.

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
ANTONIO V.,1
Plaintiff,
v. 3:23-CV-1006
(MJK)

LELAND DUDEK,
Acting Commissioner of Social Security
Defendant.
_____________________________________________________________________
PETER A. GORTON ESQ., for Plaintiff
JASON P. PECK, Special Asst. U.S. Attorney, for Defendant

MITCHELL J. KATZ, U.S. Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Plaintiff commenced this action under the Social Security Act (42 U.S.C. §
405(g)) seeking judicial review of a final decision of the Commissioner of Social
Security, denying his application for benefits. (Dkt. No. 1). This matter was
referred to me, for all proceedings and entry of a final judgment, under to
N.D.N.Y. General Order No. 18, and in accordance with the provisions of 28
U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 73.1, and the consent of
the parties. (Dkt. No.7). Both parties filed briefs (Dkt. Nos. 12, 16, 17), which the

1 In accordance with guidance from the Committee on Court Administration and Case
Management of the Judicial Conference of the United States, which was adopted by the Northern
District of New York in June 2018 to better protect personal and medical information of non-
governmental parties, this Memorandum-Decision and Order will identify the plaintiff using only
his first name and last initial.
Court treats as motions under Fed. R. Civ. P. 12(c), in accordance with General
Order 18.

I. PROCEDURAL HISTORY
On February 8, 2021, Plaintiff filed an application for Social Security
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”),
alleging disability beginning April 19, 2019. (Administrative Transcript (“T.”) 15,
296-305, 308-12)2. Plaintiff’s applications were denied initially on August 13,

2021, and upon reconsideration on January 5, 2022. (T. 15, 87, 132). On June 2,
2022, Administrative Law Judge (“ALJ”) Jennifer Smith conducted a hearing at
which Plaintiff and vocational expert (“VE”) Esperanza DiStefano testified. (T. 38-

66). On June 15, 2022, the ALJ issued a decision denying Plaintiff’s claims. (T.
15-31). The ALJ’s decision became the Commissioner’s final decision when the
Appeals Council denied Plaintiff’s request for review on July 11, 2023. (T. 1-6).

II. GENERALLY APPLICABLE LAW
A. Disability Standards
To be considered disabled, a plaintiff seeking DIB or SSI must establish that
they are “unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to

2 The Administrative Transcript is found at Dkt. No. 10. Citations to the Administrative
Transcript will be referred to as “T” and the Bates-stamped page numbers as set forth therein will
be used rather than the numbers the Court’s CM/ECF electronic filing system automatically
assigns. All other page references to Docket entries refer to the pages assigned by the Court’s
CM/ECF electronic filing system.
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. § 1382c(a)(3)(A). In addition,

the plaintiff’s
physical or mental impairment or impairments [must be] of such
severity that [they are] not only unable to do [their] previous work but
cannot, considering [their] 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 [they] live[], or whether a specific job vacancy exists for
[them], or whether [they] would be hired if [they] applied for work.

42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. §§
404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If [they are] not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits [their] physical or mental ability
to do basic work activities. If the claimant suffers such an impairment,
the third inquiry is whether, based solely on medical evidence, the
claimant has an impairment which meets or equals the criteria of an
impairment listed in Appendix 1 of the regulations. If the claimant has
such an impairment, the [Commissioner] will consider [them] disabled
without considering vocational factors such as age, education, and work
experience . . .. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s severe
impairment, [they have] the residual functional capacity to perform
[their] past work. Finally, if the claimant is unable to perform [their]
past work, the [Commissioner] then determines whether there is other
work which the claimant can perform.

Selian v. Astrue, 708 F. 3d 409, 417 (2d Cir. 2013); see also 20 C.F.R. § 404.1520,
and 20 C.F.R. § 416.920.
The plaintiff has the burden of proof to establish a disability at the first four
steps. Selian, 708 F. 3d at 418. If the plaintiff establishes that their impairment

prevents them from performing their past work, the burden shifts to the
Commissioner to prove the final step. (Id.).
B. Scope of Review
In reviewing a final decision of the Commissioner, a court “is limited to

whether the [Commissioner’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); see also Brault v. Soc. Sec. Admin., Comm’r, 683 F.
3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Talavera, 697 F. 3d at 151. It must be “more than a scintilla” of
evidence scattered throughout the administrative record. (Id.). However, this

standard is a very deferential standard of review “even more so than the ‘clearly
erroneous standard.’” Brault, 683 F. 3d at 448. “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 ex rel. Williams v. Bowen, 859 F. 2d 255, 258 (2d Cir.
1988); see also Selian, 708 F. 3d at 417 (“the reviewing court is required to
examine the entire record, including contradictory evidence and evidence from
which conflicting inferences can be drawn”) (quoting Mongeur v. Heckler, 722 F.

2d 1033, 1038 (2d Cir. 1983)). However, a reviewing court may not substitute its
interpretation of the administrative record for that of the Commissioner if the
record contains substantial support for the ALJ’s decision. Id.; see also Rutherford

v. Schweiker, 685 F. 2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting
evidence in the record. See Miles v. Harris, 645 F. 2d 122, 124 (2d Cir. 1981)
(“[W]e are unwilling to require an ALJ explicitly to reconcile every conflicting

shred of medical testimony[.]”). However, the ALJ cannot “‘pick and choose’
evidence in the record that supports his conclusions.” Cruz v. Barnhart, 343 F.
Supp. 2d 218, 224 (S.D.N.Y. 2004); see also Fuller v. Astrue, No. 09-CV-6279,

2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
III. THE ALJ’S DECISION
The ALJ determined at step one of the sequential evaluation that Plaintiff had
not engaged in substantial gainful activity since April 19, 2019, the alleged onset
date. (T. 18). At step two, the ALJ found Plaintiff had the following severe

impairments: chronic pulmonary obstructive disease (“CPOD”), asthma,
degenerative disc disease of the lumbar spine, hearing loss, depressive disorder,
anxiety disorder, and history of substance abuse. (Id.). At the third step, the ALJ
determined Plaintiff’s impairments did not meet or medically equal the criteria of
any listed impairments in 20 C.F.R. part 404, Subpart P, Appendix 1. (T. 18-20).

Next, the ALJ found Plaintiff had the residual functional capacity (“RFC”)
to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and
416.967(a), except he is able to occasionally climb ramps and stairs but
should not climb ladders, ropes, and scaffolds; should not balance as
defined in the selected characteristics of occupations, kneel, crouch,
and crawl; can occasionally stoop, push and pull; should not have
concentrated exposure to respiratory irritants such as dust, odors,
fumes, and gases, wetness and extreme hot and cold temperatures and
humidity; can tolerate no more than moderate levels of noise as defined
in Appendix D of the selected characteristics of occupations, 1993
edition; should be able to wear hearing aids at work; should be able to
stand for two minutes at thirty- minute intervals; assume claimant can
stay on task at the workstation during the position change; can
understand, remember, and carry out simple instructions; can use
judgment to make simple work-related decisions; should work in a job
with no more than occasional changes in the routine work setting;
cannot perform work requiring a specific production rate such as an
assembly line or perform work which requires hourly quotas; should
have no more than occasional contact with coworkers, supervisors, and
the public; and should be able to use a cane for ambulation, but retains
the ability to carry small objects with his free hand.

(T. 20-21).
In making the RFC determination, the ALJ stated that she “considered all
symptoms and the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence[.]” (T. 21). The
ALJ further noted that she considered “the medical opinion(s) and prior
administrative medical finding(s)” in accordance with the requirements of 20
C.F.R. §§ 404.1520(c) and 416.920(c). (Id.). After considering Plaintiff’s
statements regarding his symptoms, along with the other record evidence, the ALJ

concluded that although Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms,” his “statements
concerning the intensity, persistence and limiting effects of these symptoms are not

entirely consistent with the medial evidence and other evidence in the record.]” (T.
22).
At step four, the ALJ found that Plaintiff was unable to perform any past
relevant work. (T. 29). Finally, at step five, considering Plaintiff’s age, education,

work experience, and RFC, the ALJ relied on the testimony of the VE and the
Medical Vocational Rules in determining that Plaintiff could make a successful
adjustment to other work that exists in significant numbers in the national

economy. (T. 31). Accordingly, the ALJ concluded Plaintiff was not disabled.
(Id.).
IV. ISSUES IN CONTENTION
Plaintiff argues that remand is warranted because the ALJ’s determinations are
not supported by substantial evidence and is the product of legal error. (Dkt. No.

12 at 21). Specifically, Plaintiff contends the ALJ erred by:
1) erroneously finding that Plaintiff could work consistently without any
limitations; and
2) erred in assessing the medical opinions of Drs. Amanda Slowik, Psy. D.
and Richard Webster D.O. as well as those of the non-examining state
agency psychologists.
(Dkt. No. 12 at 3-21).
Defendant contends the Commissioner’s determination should be affirmed
because the ALJ correctly and reasonably explained the “supportability” and
“consistency” of the medical opinions when formulating the RFC. (Dkt. No. 16 at

4-10).
For the reasons stated below, the Court finds that the ALJ’s RFC determination
was supported by substantial evidence, and that she properly considered the
supportability and consistency factors within the context of the medical opinions.

Accordingly, remand is not warranted on the bases raised by Plaintiff, and the
Commissioner’s decision denying disability is affirmed.
V. DISCUSSION
A. RFC
1. Legal Standard
RFC is “what [the] individual can still do despite his or her limitations.
Ordinarily, RFC is the individual’s maximum remaining ability to do sustained

work activities in an ordinary work setting on a regular continuing basis. . . A
‘regular and continuing basis’ means eight hours a day, five days a week, or an
equivalent work schedule.” Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL

252970, at *2 (N.D.N.Y. Jan. 23, 2013) (quoting Melville v. Apfel, 198 F. 3d 45, 52
(2d Cir. 1999)) (quoting SSR 96-8p, 1996 WL 374184, at *2); see also Babcock v.
Berryhill, No. 5:17-CV-00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y.

Sept. 12, 2018); Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir.
2013); Stephens v. Colvin, 200 F. Supp. 3d 349, 361 (N.D.N.Y. 2016).
In rendering an RFC determination, the ALJ must consider objective

medical facts, diagnoses, and medical opinions based on such facts, as well as a
plaintiff’s subjective symptoms, including pain and descriptions of other
limitations. See 20 C.F.R. §§ 404.1545, 416.945; see also Martone v. Apfel, 70 F.
Supp. 2d 145, 150 (N.D.N.Y. 1999) (citing LaPorta v. Bowen, 737 F. Supp. 180,

183 (N.D.N.Y. 1990)); Kirah D. v. Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL
587459, at *8 (N.D.N.Y. Feb. 13, 2019); Genier v. Astrue, 606 F. 3d 46, 49 (2d
Cir. 2010).

An ALJ must specify the functions plaintiff can perform and may not simply
make conclusory statements regarding a plaintiff’s capacities. See Roat v.
Barnhart, 717 F. Supp. 2d 241, 267 (N.D.N.Y. 2010); see also Martone, 70 F.
Supp. 2d at 150 (citing Ferraris v. Heckler, 728 F. 2d 582, 588 (2d Cir. 1984));

LaPorta, 737 F. Supp. at 183; Stephens, 200 F. Supp. 3d at 361 (N.D.N.Y. 2016);
Whittaker v. Comm’r of Soc. Sec., 307 F. Supp. 2d 430, 440 (N.D.N.Y. 2004). The
RFC assessment must also include a narrative discussion, describing how the

evidence supports the ALJ’s conclusions, citing specific medical facts, and non-
medical evidence. See Natashia R. v. Berryhill, No. 3:17-CV-01266 (TWD), 2019
WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing SSR 96-8p, 1996 WL

374184, at *7); see also Angelo Michael G. v Kijakazi, No. 6:22-CV-00892
(TWD), 2023 WL 4763792 (N.D.N.Y. July 26, 2023) (quoting Ferraris, 728 F. 2d
at 587). “[A]n RFC finding is administrative in nature, not medical, and its

determination is within the province of the ALJ.” Curry v. Comm’r of Soc. Sec.,
855 F. App’x 46, 49 n.3 (2d Cir. 2021) (citing 20 C.F.R. § 404.1527(d)(2)).
Furthermore, 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); see also

Schaal v. Apfel, 134 F. 3d 496, 504 (2d Cir. 1998) (“It is for the SSA, and not this
court, to weigh the conflicting evidence in the record”); Cage v. Comm’r of Soc.
Sec., 692 F. 3d 118, 122 (2d Cir. 2012) (“In our view, we defer to the

Commissioner’s resolution of conflicting evidence.”).
2. Analysis
Plaintiff argues “the ALJ errs because he fails to explain why he does not
include any limitations to time off-task and/or attendance. . .” (Dkt. No. 12 at 10).

Specifically, he argues “the ALJ completely ignores those portions of Kamin’s and
Blackwell’s opinions finding moderate limitations to staying on task and/or
maintain attendance.” (Id.). He also argues that the RFC is unsupported by the
medical evidence of record. (Id.). The Court finds these arguments unpersuasive
for the following reasons.

a. Time off-task and/or attendance
Work pace and attendance both “fall[] under the category of concentration and
persistence,” Tyler M. v. Saul, No. 3:19-CV-426 (CFH), 2020 WL 5258344, at *11

(N.D.N.Y. Sep. 3, 2020) (quoting Lowry v. Comm’r of Soc. Sec., No. 15-CV-1553
(GTS/WBC), 2017 WL 1290685, at *4 (N.D.N.Y. Mar. 16, 2017)), report and
recommendation adopted, 2017 WL 1291760 (N.D.N.Y. Apr. 6, 2017), which
“‘refers to the ability to sustain focused attention and concentration sufficiently

long to permit the timely and appropriate completion of tasks commonly found in
work settings’” Cox v. Astrue, 993 F. Supp. 2d 169, 182 (N.D.N.Y. 2012). As the
Commissioner notes, and this Court agrees, the Second Circuit has determined that

moderate limitations in concentration, persistence, or pace are consistent with the
ability to perform unskilled work. (Def. Br. at 7); see also Matta v. Asture, 508 F.
App’x. 53, 55 (2d Cir. 2013) (summary order) (“[t]he ALJ found that [the] plaintiff
had moderate difficulties in concentration, persistence, and pace and moderate

difficulties in social functioning that limit [him] to simple, routine, low-stress, and
unskilled tasks, which involve no more than minimal contact with co-workers,
supervisors and the general public.”) (internal quotation marks and citation

omitted); Andrea N. v. Saul, No. 3:18-CV-1186 (CFH), 2020 WL 1140512, at *6
(N.D.N.Y. Mar. 9, 2020) (“Accordingly, because the record evidence establishes
that plaintiff has, at most, a moderate limitations in maintaining a regular work

schedule and work-pace and the RFC specifically limits plaintiff to light work that
involves only simple, routine tasks with minimal contact with coworkers,
supervisors, or the public, the RFC adequately ‘accounts for [the plaintiff’s]

limitations for performing activities within a schedule and maintaining regular
attendance.’”) (citations omitted).
The ALJ found Plaintiff had moderate limitations concentrating, persisting or
maintaining pace. (T. 19). To support this conclusion, she analyzed opinions from

consultative examiner Dr. Slowik, who opined that Plaintiff was markedly
impaired in attention and concentration skills due to his physical pain and limited
intellectual functioning (T. 793), state agency consultants E. Kamin, Ph. D., and L.

Blackwell Ph. D., who both opined moderate limitations in concentrating,
persisting or maintaining pace (T. 76, 97), Plaintiff’s 2022 function report stating
“he can pay attention all day and finishes things he starts” (T. 359), and reports
throughout the longitudinal record of how he presented during examinations (T.

19, 625, 633, 642, 650, 657, 672, 679, 687, 694, 702, 710, 718, 728, 737, 745, 754,
763, 771, 788, 792; “[His] thought processes were coherent and goal directed with
no evidence of hallucinations, delusions, or paranoia.”).
While the Court agrees with Plaintiff in noting that “‘attendance at medical
appointments is unhelpful’ in assessing the ability to consistent[ly] show up and

successfully function in a work environment” this was not the ALJ’s only reason
for not supporting a marked limitations in sustaining an ordinary routine. (Dkt. No.
12 at 11). She also noted the state agency psychiatric consultants’ findings that

Plaintiff was not significantly limited in his ability to perform activities within a
schedule, maintain regular attendance, be punctual within customary tolerances,
and sustain an ordinary routine without special supervision. (T. 27, 83, 104).
These were subcategories within rating Plaintiff’s sustained concentration and

persistence limitations. (T. 83, 104). “[A]n ALJ can look [] to a claimant’s
activities of daily living, which sometimes shed light on the ability to make and
keep a routine and/or a daily schedule.” Leanne S. v. Comm’r of Soc. Sec., No.

3:20-CV-1447 (CFH), 2022 WL 4448245 at *22 (N.D.N.Y. Sept. 23, 2022)
(quoting Amanda R. v. Comm’r of Soc. Sec., 556 F. Supp. 3d 145, 156 (N.D.N.Y.
2021)) (citation omitted).
In the April 11, 2021 Function Report, and as Plaintiff testified, he does chores,

cleans his house with a claw, watches television, prepares meals but has difficulties
standing while doing so, does laundry, washes dishes for one hour at a time, takes
the trash out, walks to places, uses social media, and plays video games. (T. 354-

361, 797). Plaintiff also indicated he dresses, bathes, and grooms himself. (T. 355,
797). It is clearly within the ALJ’s discretion to find that those limitations were
more appropriately on the moderate rather than the marked range of functional

ability. See Maite V. v. Kijakazi, No. 3:20-CV-899 (DJS), 2021 WL 6333101 at *4
(N.D.N.Y. Dec. 2, 2021) (allowed the ALJ to reconcile two medical opinions
between the state agency medical consultant and the consultative examiner).

b. RFC is supported by the medical evidence of record
When ALJ Smith formulated the RFC, she concluded that Plaintiff could
perform sedentary work, should work in a job with no more than occasional
changes in the routine work setting, could not perform work requiring a specific

production rate such as an assembly line or perform work which requires hourly
quotas, and could only have occasional contact with coworkers. (T. 21). As a
result, to the extent Plaintiff argues the RFC failed to account for his work pace

limitations and attendance, that contention is belied by the express language of the
RFC. See Eby v. Colvin, 227 F. Supp. 3d 275, 279-80 (W.D.N.Y. 2017) (“The RFC
determined by the ALJ, which limits [the] plaintiff to performing low-stress, goal-
oriented work [-] and not production pace work [-] involving only simple tasks,

adequately accounts for [the] plaintiff’s moderate limitations in attention and
concentration.”).
Contrary to Plaintiff’s arguments, the ALJ did not arbitrarily substitute her own

judgment for competent medical opinions in deciding that the assessments for time
off task and absenteeism were speculative, and Plaintiff’s measurements of
activity. (Dkt. No. 12 at 12-14). Plaintiff argues that because Dr. Webster gave an

explicit opinion concerning Plaintiff’s time off task, the ALJ could not reject it by
noting “what it does not say rather than what it does say.” (Dkt. No. 12 at 14)
(emphasis omitted). The ALJ is entitled to rely on what the record says as well as

what it does not say. See Dumas v. Schweiker, 712 F. 2d 1545, 1553 (2d Cir.
1983); see also Dias v. Shalala, 59 F. 3d 307, 315 (2d Cir. 1995) (noting that the
ALJ properly relied in the absence of finding in the record regarding the claimant’s
alleged inability to sit.). As an administrative finding, ALJ Smith bore the final

responsibility for determining Plaintiff’s RFC and she was well within her
discretion to formulate an RFC that was based upon the record as a whole, even if
the RFC did not reflect any one opinion in its entirety. See Monroe v. Comm’r of

Soc. Sec., 676 F. App’x 5, 9 (2d Cir. 2017) (summary order); see also Matta, 508
F. App’x at 56 (noting that an ALJ’s RFC does not need to “perfectly correspond
with any of the opinions contained in the record”). It is apparent that ALJ Smith
considered Plaintiff’s capacity for work pace and attendance, and reasonably

rejected portions of the medical opinions. See Cichocki v. Asture, 729 F. 3d at 178
n.3 (“An ALJ need not recite every piece of evidence that contributed to [his]
decision, so long as the record permits [the reviewing court] to glean the rationale

of an ALJ’s decision.”). Accordingly, the Court concludes that the ALJ’s RFC
formulation was supported by substantial evidence and that remand is not
warranted.

B. Evaluation of Medical Evidence
1. Legal Standards
According to the applicable regulations, 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.” See 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c)(2017). The
ALJ must “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”
that formed the foundation of the treating source rule. Revisions to Rules, 82 Fed.
Reg. 5844-01 at 5853. 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 that “[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. at §§ 404.1520c(c)(1),

416.920c(c)(1)); see also Carmen M. v. Comm’r of the Soc. Sec. Admin, No. 20-
CV-06532, 2021 WL 5410550, at *4 (W.D.N.Y. Nov. 19, 2021) (“The
‘supportability’ factor asks how well a medical source supported their opinions

with objective medical evidence and supporting explanation.”).
The regulations provide that 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. at §§ 404.1520c(c)(2), 416.920c(c)(2)); see also Vellone v. Saul, No.
1:20-CV-00261, 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021) (“Simply put,

consistency is an all-encompassing inquiry focused on how well a medical source
is supported, or not supported, by the entire record.”) report and recommendation
adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021).
An ALJ must also consider, but need not explicitly discuss, the three

remaining factors in determining the persuasiveness of a medical source’s opinion.
(Id. at §§ 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 the same, the ALJ must articulate how he or she considered those
factors contained in paragraphs (c)(3) through (c)(5). (Id. at §§ 404.1520c(b)(3),
416.920c(b)(3)).

2. Analysis
a. Psychiatric Evaluator Amanda Slowik, Psy. D.
Dr. Slowik conducted Plaintiff’s consultative psychiatric evaluation. (T. 791-

795). During the evaluation, Dr. Slowik noted that Plaintiff was cooperative; his
social skills were adequate; his thought process was coherent, and goal directed;
and his mood to be dysthymic and anxious. (T. 792). Moreover, Dr. Slowik noted
that Plaintiff’s “attention and concentration skills were markedly impaired due to

distractibility secondary to physical pain and also because of his limited
intellectual functioning.” (T. 793). Plaintiff was able to count backwards from ten,
but struggled with simple calculations, serial sevens and serial threes. (Id.). Dr.

Slowik noted that: Plaintiff’s recent memory skills were mildly impaired; his
remote memory skills were moderately impaired; he was able to remember three
out of three objects immediately and one out of three objects after a five-minute
delay, but after given hints about the categories to which two objects belonged, he

was able to produce one additional object. (Id.). Plaintiff could also recite four
digits forward and two digits backwards. (Id.). In reviewing Plaintiff’s “mode of
living [,]” Dr. Slowik noted that Plaintiff could “dress, bathe, and groom himself.

He has difficulty standing while cooking. Plaintiff must take breaks [and] sit down
while cleaning. Plaintiff does laundry, and his wife does the grocery shopping
because of his anxiety.” (Id.). Dr. Slowik also explained that Plaintiff does not

drive but has access to a public bus. (Id.). Moreover, “[w]hen asked about his
social life, [Plaintiff] stated that he has one friend with whom he maintains contact
as well as supportive family members. Hobbies and interests include watching TV,

listening to music, and playing video games.” (Id.).
In her medical source statement, Dr. Slowik determined that Plaintiff’s
“ability to understand, remember, or apply simple directions and instructions is
mildly to moderately limited. [His] ability to understand, remember, and apply

complex directions and instructions and sustain an ordinary routine is moderately
to markedly limited.” (T. 794). Dr. Slowik further opined that Plaintiff’s “ability to
interact adequately with supervisors, co-workers, and the public is mildly limited.”

(Id.). Additionally, Dr. Slowik determined that Plaintiff’s “ability to sustain
concentration and regulate emotions is moderately limited.” (Id.). Dr. Slowik
concluded that Plaintiff was not limited in his ability to maintain personal hygiene
and be aware of normal hazards.” (Id.). Finally, Dr. Slowik explained that

Plaintiff’s “difficulties are caused by distractibility, cognitive deficits, anxiety, and
lack of motivation”; and that Plaintiff’s conditions “may significantly interfere
with [his] ability to function on a daily basis.” (Id.).
The ALJ found Dr. Slowik’s opinion somewhat persuasive. (T. 27). The ALJ
also stated that Dr. Slowik “provided the findings to support her opinion, however,

the opinion is not entirely consistent with the record.” (Id.). But the ALJ disagreed
with Dr. Slowik’s opinions of Plaintiff’s limitations in interacting with others and
sustaining an ordinary routine. (Id.). ALJ Smith mentioned that Plaintiff reported

having panic attacks/anxiety around large crowds and the mental health records
indicated that Plaintiff had difficulties with communicating and conflict
management. (T. 807). As evidence of Plaintiff’s ability to sustain an ordinary
routine, he testified that he keeps a routine to take his medication (T. 47); he takes

care of his pets by himself (T. 355), and pays his bills. (T. 357). While Plaintiff did
miss some treatments and not make appointments with specialists this was due to
unforeseen sicknesses (T. 362, 532), or from worsening symptoms after treatment.

(T. 829). However, as the ALJ noted, Plaintiff consistently attended appointments
and follows up with his providers. (T. 429-552). The ALJ further noted, Dr.
Slowik’s opinion was not consistent with the state agency psychiatric consultant’s
findings that Plaintiff was not significantly limited in sustaining an ordinary

routine without special supervision. (T. 27, 83). In sum, Dr. Slowik’s opinion is
supported by objective medical evidence, and is consistent with some evidence
from other medical sources. See 20 C.F.R. §§ 404.1520c(c)(1)-(2). Accordingly,
the ALJ’s finding that Dr. Slowik’s opinion was somewhat persuasive is supported
by substantial evidence. (T. 27).

b. Dr. Webster
On October 7, 2021, and April 22, 2022, Plaintiff’s primary care provider, Dr.
Webster, offered two medial opinions about Plaintiff’s physical RFC through

check-box questionnaires. (T. 850, 885-87). In the October 2021 opinion, Dr.
Webster opined that Plaintiff could walk, stand, bend and sit with normal breaks
for zero to two continuous hours maximum a day during an eight-hour workday.
(T. 850). Dr. Webster did not answer the questions “[d]oes your patient need to

periodically alternate walking, standing, bending, or shifting during the work day
to relieve discomfort” and “[d]oes your patient need the opportunity to [relieve
discomfort] at will throughout the work day[.]” (Id.) (emphasis italicized). He also

opined that Plaintiff could consistently lift and carry ten to twenty pounds max as
part of his regular job duties with normal breaks during an eight-hour workday.
(Id.). In the April 2022 opinion, Plaintiff’s capabilities improved greatly, and Dr.
Webster opined that while sitting is impacted by Plaintiff’s condition, he could sit

for approximately eight hours out of an eight-hour workday. (T. 886). Dr. Webster
further opined Plaintiff could stand/walk for approximately four hours out of an
eight-hour work day. (Id.). Dr. Webster again did not answer the question whether

Plaintiff should alternate sitting/standing to relieve pain. (Id.). Additionally, Dr.
Webster indicated that Plaintiff could safely lift, without causing excess pain or
worsening the condition, zero to five pounds frequently up to two-thirds of the day;

five to ten pounds occasionally up to one third of the day; and should not lift over
ten pounds at all. (Id.).
Dr. Webster also indicated that Plaintiff’s back pain and sciatic pain, the

resulting side effects of the medications Plaintiff used, would cause him pain,
fatigue, diminish his concentration, diminish his work pace, and cause him to need
rest at work. (T. 885). Dr. Webster concluded that these side effects would cause
Plaintiff to be off task “[m]ore than 33%” of a typical workday. (Id.). Dr. Webster

further indicated that Plaintiff’s conditions would cause him to have good days and
bad days. (Id.). According to Dr. Webster, these fluctuations would cause Plaintiff
to miss three days of work a month. (Id.).

The ALJ found Dr. Webster’s Oct. 7, 2021 opinion somewhat persuasive
because he has a treatment relationship with Plaintiff and parts of his opinion were
consistent with the record. (T. 28). The ALJ found Dr. Webster’s April 22, 2022
opinion partially consistent. (T. 29). The ALJ concluded that Dr. Webster failed to

support his opinion about Plaintiff’s schedule and concentration limitations with
objective medical evidence and was inconsistent with evidence from other medical
sources. (Id.). Plaintiff challenges this evaluation, arguing that Dr. Webster’s

opinion was supported by objective medical evidence and was consistent with
evidence in the record. (Dkt. No. 12 at 14-17). Plaintiff further argues the ALJ
failed to explain her reasoning. (Id. at 16).

The Court concludes that the ALJ did not err in finding Dr. Webster’s opinions
somewhat and partially persuasive. (T. 28-29). The concentration, schedule, and
pace limitations opined in Dr. Webster’s April 2022 opinion were unsupported by

explanations, unsupported by objective medical evidence, and inconsistent with
evidence in the record. See 20 C.F.R. §§ 404.1520c(c)(1)-(2).
First, Dr. Webster offered no supporting explanation for the concentration and
schedule limitations in his April 2022 opinion. (See T. 885-887). The more

relevant the supporting explanations presented by a medical source are to support
his opinion, the more persuasive the medical opinion will be. See 20 C.F.R. §
404.1520c(c)(1). Here, Dr. Webster simply opined, without explanation, that

Plaintiffs impairments would cause him to be off task “[m]ore than 33%” of a
typical workday, and that his impairments would cause him to miss three days of
work every month. (T. 885-886). The ALJ concluded these limitations were
speculative because, among other reasons, they lacked a supporting explanation.

(T. 29). Substantial evidence supports that conclusion. See Tejada v. Apfel, 167 F.
3d 770, 773 (2d Cir. 1999); see also Robert O. v. Comm’r of Soc. Sec., No. 3:20-
CV-1612 (TWD), 2022 WL 593554, at *13-14 (N.D.N.Y. Feb. 28, 2022). (“The
substantial evidence standard resolves this issue, not the lack of an overwhelming
compelling analysis as cited by Plaintiff.”).

Second, Dr. Webster cited no objective medical evidence in support of his
conclusions about Plaintiff’s concentration and schedule limitations. (T. 885-887).
The more relevant the objective medical evidence presented by a medical source is

to support his opinion, the more persuasive the medical opinion will be. See 20
C.F.R. § 404.1520c(c)(1). In Halloran v. Barnhart, 362 F. 3d 28, 31 n.2 (2nd Cir.
2004), the Second Circuit noted the “limited value of the standardized check-box
forms, which are considered only marginally useful for purposes of creating a

reviewable factual record.” See Sabater v. Colvin, No. 12-CV-4594, at *5 n.6
(S.D.N.Y. Mar. 10, 2016) (citing cases, including Halloran, supra). There are also
cases holding that check-the-box questionnaires are a proper format for a treating

physician to express an opinion. See Stephanie P. v. Comm’r of Soc. Sec., No.
5:17-CV-599 (ATB), 2018 WL 4344937, at *9 (N.D.N.Y. Sept. 11, 2018) (citing
Goble v. Colvin, No. 15-CV-6302, 2016 WL 3179901, at *5 (W.D.N.Y. June 8,
2016)) (citations omitted). This Court does not dispute that check-the-box forms

are widely used and are not invalid simply because of the nature of the form;
however, in this case, Dr. Webster simply opined, without citation to objective
medical evidence, that Plaintiff’s impairments would cause him to miss three days
of work every month and to be off task for a significant period every workday. (T.
885-887).

The ALJ assigned no persuasive value to this opinion because, among other
reasons, it was “not supported by the record.” (T. 29). The objective medical
evidence supports the conclusion that Plaintiff has a fair ability to function

independently, appropriately, effectively, and on a sustained basis (i.e., Plaintiff
has moderate limitations—and was not seriously limited—in his ability to
concentrate, persist, and maintain pace). See 20 C.F.R. § Pt. 404, Subpt. P, App. 1
12.00(F)(2)(c)-(d) (defining “Moderate” and “Marked” limitations); see also (T.

78-82, 99-103, 122-26, 146-50, 850). Moreover, the longitudinal record supports
years of treatment records indicating that Plaintiff had normal neurologic and
mental exams. (T. 763, 771, 781, 783, 788, 822, 827, 834, 841, 856, 866, 878).

Accordingly, substantial evidence supports the ALJ’s conclusion that the
concentration and schedule limitations in Dr. Webster’s opinion are inconsistent
with evidence from other medical sources. See Tejada, 176 F.3d at 773; see also
Courtney L.W. v. Comm’r of Soc. Sec., No. 8:20-CV-1233 (TWD), 2022 WL

685290, at *4-5 (N.D.N.Y. Mar. 8, 2022).
The Court concludes that substantial evidence supports the ALJ’s conclusion
that Dr. Webster’s opinion lacked a supporting explanation, was unsupported by
objective medical evidence and was inconsistent with evidence from other medical
sources. (Id.); see also 20 C.F.R. §§ 404.1520c(c)(1)-(2).

c. Non-Examining State Agency Consultant’s E. Kamin, Ph. D.
and L. Blackwell Ph. D.
Based on his review of the medical evidence3, Dr. Kamin concluded that
Plaintiff suffered from four severe impairments: CPOD, obesity, depressive,
bipolar and related disorders, and anxiety and obsessive-compulsive disorders. (T.
75). Dr. Kamin accordingly completed a mental RFC. (T. 82-85). Dr. Kamin
concluded Plaintiff had limitations in all four categories of mental functioning (i.e.,
understanding and memory, sustained concentration and persistence, social

interaction, and adaptation). (Id.); see also generally 20 C.F.R. § 404.1520a(c)(3).
In the concentration and persistence category of mental functioning, Dr. Kamin
concluded that Plaintiff was not significantly limited in his ability to: (i) carry out

very short and simple instructions; (ii) perform activities within a schedule,
maintain regular attendance, and be punctual with customary tolerance (“keep
schedule”); (iii) sustain an ordinary routine without special supervision; and (iv)
make simple work-related decisions. (T. 83-84). Further, Dr. Kamin concluded that

Plaintiff had no limitations in his ability to have social interaction. (T. 84).

3 The Disability Determination Explanation completed by Drs. Kamin and Blackwell indicated
they reviewed the following medical evidence: treatment records from Johnson City Family
Care, Wilson Memorial Hospital, Southern Tier Pulmonary, and UHS Heart & Vascular
Institute, as well as medical opinions from Industrial Medicine Associates dated Aug. 9, 2021,
and Aug. 11, 2021. (T. 92-94).
In the “Additional Explanation” section, Dr. Kamin cited the consultative
examination from August 3, 2021, where Dr. Slowik observed Plaintiff’s social

anxiety. (T. 85, citing T. 793). Dr. Kamin further noted that Plaintiff could dress,
bathe, and groom himself, and that he could manage money with his wife. (Id.).
Dr. Kamin concluded that Plaintiff was “limited to unskilled work.” (Id.). Dr.

Blackwell’s review of the medical evidence and his opinion was identical to Dr.
Kamin’s. (See T. 119-130).
Plaintiff alleges “the ALJ fails to state how persuasive she finds the opinions of
the [non-examining state agency psychologist]” and that the ALJ failed to explain

how she considered the supportability and consistency factors. (Dkt. No. 12 at 18-
19). Plaintiff specifically challenges how Drs. Kamin and Blackwell found lesser
limitations when relying exclusively on Dr. Slowik’s opinion. (Id. at 12). The ALJ

found “the opinions from the State Agency psychiatric consultants generally
consistent” because the doctors provided reports that cite to the record to support
the opinions, and the opinions are generally consistent with the record.” (T. 27). It
is fair to infer from the ALJ’s explanation that she intended to find “the opinions

from the State Agency psychiatric consultants generally persuasive.” Id. (emphasis
italicized). It appears that the use of the word “consistent” in this sentence is due to
a scrivener’s error as, “[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.” Elizabeth P. v. Comm’r of Soc.

Sec., No. 3:20-CV-891 (CFH), 2022 WL 507367, at *4 (N.D.N.Y. Feb. 18, 2022)
(quoting 20 C.F.R. § 404.1520c(c)(2)).
Plaintiff is incorrect in stating the doctors “concluded Plaintiff did not have any

limitations to sustaining routine” (Dkt. No. 12 at 12), as noted above the non-
examining consultants found he was not significantly limited in sustaining a
routine. (T. 83). Plaintiff’s position is essentially that Dr. Slowik’s opinion was
more aligned with the record than with Drs. Kamin and Blackwell’s, but this is a

quintessential example of a request for the Court to reweigh the evidence which the
Court declines to do.4 See Shyla D. v. Kijakazi, No. 3:20-CV-1295 (DJS), 2022
WL 798158, at *6 (N.D.N.Y. March 16, 2022) (citing Joanne R. v. Kijakazi, No.

5:20-CV-1244 (DJS), 2021 WL 5629077, at *3 (N.D.N.Y. Dec. 1, 2021)) (citing
cases).
“A non-examining state agency consultant’s opinion may be relied upon where
it is supported by other record evidence.” Tammy L v. Comm’r of Soc. Sec., No.

6:23-CV-1545(MJK), 2024 WL 4859092 at *5 (N.D.N.Y. Nov. 21, 2024) (citing
Hansen-Nilsen v. Comm’r of Soc. Sec., No. 5:15-CV-1528 (GTS/WBC), 2017 WL

4 Plaintiff argues that “the ALJ’s reasons are not overwhelming(sic) compelling….” Dkt. No. 12
at 11. The ALJ reasons do not need to be “overwhelmingly compelling,” only supported by
substantial evidence.
913933, at *5 (N.D.N.Y. Feb. 7, 2017) (citing Frye ex rel. A.O. v. Astrue, 485 Fed.
App’x. 484, 487 (2d Cir. 2012)) (“The report of a State agency medical consultant

constitutes expert opinion evidence which can be given weight if supported by
medical evidence in the record.”), report recommendation adopted 2017 WL
913639 (N.D.N.Y. Mar. 6, 2017); see also Swan v. Astrue, No. 09-CV-486-S, 2010

WL 3211049, at *5 (W.D.N.Y. Aug. 11, 2010) (“State agency medical consultants
are qualified experts in the evaluation of disability claims and as such, their
opinions may constitute substantial evidence if they are consistent with the record
as a whole.”).

Although brief, the ALJ’s explanation and written decision allows the Court to
“trace the path of [her] reasoning” for generally adopting the doctors’ findings.
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01;

see Cichocki, 729 F. 3d at 178 n.3 (quoting Mongeur, 722 F. 2d at 1040 (“An ALJ
is not required to discuss in depth every piece of evidence contained in the record,
so long [as] the evidence of record permits the Court to glean the rationale of an
ALJ’s decision.”)). It is clear from the RFC that the ALJ made detailed

determinations regarding Plaintiff’s ability to interact with others, citing to Dr.
Slowik’s report upon which the non-examining state agency consultants base their
opinion. (T. 27). Therefore, the ALJ properly found the persuasiveness of the

consultants’ opinions.
Considering the foregoing, the Court finds the ALJ did not err in their RFC
assessment, which is supported by substantial evidence, and the ALJ applied the
correct legal standards. Accordingly, remand is not required.
WHEREFORE, based on the findings above, it is
ORDERED, that Plaintiff's motion for judgment on the pleadings (Dkt. No.
12, 17) is DENIED; and it is further
ORDERED, that Defendant’s motion for judgment on the pleadings (Dkt.
No. 16) is GRANTED; and it is further
ORDERED, that the decision of the Commissioner be AFFIRMED, and
Plaintiff's complaint (Dkt. No. 1) be DISMISSED IN ITS ENTIRETY.

Dated: March 21, 2025
Syracuse, New York
Hon. Mitchell J. Katz
U.S. Magistrate Judge

30

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10829607. Public record. Not legal advice.