The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHAUNA N.B.,
Plaintiff, 6:22-CV-6048Sr
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
DECISION AND ORDER
As set forth In the Standing Order of the Court regarding Social Security
Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have
consented to the assignment of this case to the undersigned to conduct all
proceedings, including the entry of final judgment, as set forth in 42 U.S.C. § 405(g).
Dkt. #15.
BACKGROUND
Plaintiff applied for supplemental security income (“SSI”), benefits with the
Social Security Administration (“SSA”), on November 19, 2019, alleging disability
beginning January 1, 2019, at the age of 20, due to schizophrenia and depression Dkt.
#7, p.177.
On January 21, 2021, plaintiff appeared with counsel and testified, along
with an impartial vocational expert (“VE”), Frank Fazzolari, at an administrative hearing
conducted telephonically before Administrative Law Judge (“ALJ”), Vincent Cascio. Dkt.
#7, pp.37-55. Plaintiff testified that she was 22 years old with a tenth grade education.
Dkt. #7, p.43. She lived with her two-year-old daughter. Dkt. #6, p.36. She does not
have a driver’s license. Dkt. #7, p.43. She has never worked. Dkt. #7, p.44. She sees
her therapist every two weeks and her psychiatrist every month. Dkt. #7, p.44. She is
prescribed Abilify and Seroquel. Dkt. #7, p.44. She is in a chemical dependency
program and ceased marijuana use on November 4th. Dkt. #7, p.47.
Plaintiff explained that she is always sad and worried that something bad
is going to happen. Dkt. #7, p.47. She experiences racing thoughts and gets
overwhelmed very easily. Dkt. #7, p.48. Her case manager helps her manage things
she has to do. Dkt. #7, p.48. She does not watch television or engage with social media
because it makes her paranoid. Dkt. #7, p.49. She likes to journal, take baths and paint
her nails. Dkt. #7, p.45. Plaintiff cares for her daughter as best she can but is “usually in
bed most of the day.” Dkt. #7, p.49. She reported her attention and concentration as
“pretty poor.” Dkt. #7, p.44. She testified that she gets along with people and has a
couple of friends, but doesn’t really go out much because of her anxiety. Dkt. #7, pp.44-
45. She grocery shops and does a little cooking, but has a hard time cleaning due to
her depression. Dkt. #7, p.46.
When asked to assume an individual with plaintiff’s age, education and
past work experience with no exertional limits who was limited to simple, routine and
repetitive work-related tasks with only occasional contact with the public, coworkers and
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supervisors, with only occasional decision-making and changes in the workplace, the
VE testified that plaintiff could work as a packer, cleaner, or hand launderer, each of
which is a medium exertion, unskilled position. Dkt. #7, pp.51-52. The VE further opined
that if such individual was off task 15% of the work day and absent two or more times
per month, that individual would be deemed unemployable. Dkt. #7, p.52. The VE
clarified that the maximum amount of time off task permitted was 10% of a work day.
Dkt. #7, p.52. In addition, the VE testified that even one or two absences per month on
a consecutive monthly basis would not be tolerated. Dkt. #7, p.52.
The ALJ rendered a decision that plaintiff was not disabled on April 19,
2021. Dkt. #7, pp.23-32. The Appeals Council denied review on December 2, 2021.
Dkt. #7, p.5. Plaintiff commenced this action seeking review of the Commissioner’s final
decision on January 31, 2022. Dkt. #1.
DISCUSSION AND ANALYSIS
“In reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by substantial evidence in
the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012). Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue,
569 F.3d 496, 501 (2d Cir. 2009). If the evidence is susceptible to more than one
rational interpretation, the Commissioner’s determination must be upheld. McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014). “Where an administrative decision rests on
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adequate findings sustained by evidence having rational probative force, the court
should not substitute its judgment for that of the Commissioner.” Yancey v. Apfel, 145
F.3d 106, 111 (2d Cir. 1998).
To be disabled under the Social Security Act (“Act”), a claimant must
establish an inability to do 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. 20 C.F.R. § 416.905(a). The Commissioner must follow a five-step
sequential evaluation to determine whether a claimant is disabled within the meaning
of the Act. 20 C.F.R. § 416.920(a). At step one, the claimant must demonstrate that
she is not engaging in substantial gainful activity. 20 C.F.R. § 416.920(b). At step two,
the claimant must demonstrate that she has a severe impairment or combination of
impairments that limits the claimant’s ability to perform physical or mental work-related
activities. 20 C.F.R. § 416.920(c). If the impairment meets or medically equals the
criteria of a disabling impairment as set forth in Appendix 1 of Subpart P of Regulation
No. 4 (the “Listings”), and satisfies the durational requirement, the claimant is entitled
to disability benefits. 20 C.F.R. § 416.920(d). If the impairment does not meet the
criteria of a disabling impairment, the Commissioner considers whether the claimant
has sufficient Residual Functional Capacity (“RFC”), for the claimant to return to past
relevant work. 20 C.F.R. § 416.920(e)-(f). If the claimant is unable to return to past
relevant work, the burden of proof shifts to the Commissioner to demonstrate that she
could perform other jobs which exist in significant numbers in the national economy,
based on claimant’s age, education and work experience. 20 C.F.R. § 416.920(g).
In the instant case, the ALJ made the following findings with regard to the
five-step sequential evaluation: (1) plaintiff had not engaged in substantial gainful
activity since the date of her application on November 1, 2019; (2) plaintiff’s
schizophrenia, major depressive disorder, and canabis use disorder constitute severe
impairments; (3) plaintiff’s impairments did not meet or equal any listed impairment; (4)
plaintiff retained the RFC to perform work at all exertional levels and was limited to
simple, routine, and repetitive work-related tasks with only occasional contact with the
public, coworkers and supervisors and only occasional decision making and changes in
the work place; and (5) plaintiff was capable of working as a packer, cleaner and hand
launderer, which are medium exertion, unskilled positions, and was not, therefore,
disabled within the meaning of the SSA. Dkt. #7, pp.25-31.
Pursuant to the 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), applicable to claims filed on or after March 27, 2017, the Commissioner
is no longer required to afford any specific evidentiary weight to medical opinions, but is
obligated to consider all medical opinions and evaluate their persuasiveness based on
the following five factors: (1) supportability; (2) consistency; (3) relationship with the
claimant; (4) specialization; and (5) other factors, with particular importance placed
upon consistency and supportability. Jacqueline L. v. Comm’r of Soc. Sec’y, 515 F.
Supp.3d 2, 7 (W.D.N.Y. 2021), citing 20 C.F.R. § 404.1520c(a) & (c). To allow a
reviewing court to trace the path of an ALJ’s reasoning, an ALJ is required to explain
their consideration of the supportability and consistency factors by pointing to specific
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evidence in the record to support the ALJ’s findings regarding medical opinions. Id.,
citing 20 C.F.R. § 404.1520c(b)(2) & (c).
With respect to supportability, the more relevant the objective medical
evidence and supporting explanations presented by a medical source are to support the
medical opinion, the more persuasive the medical findings will be. Id., citing 20 C.F.R.
§ 404.1520c(c)(1). Similarly, with respect to consistency, the more consistent a medical
opinion is with the evidence from other medical and nonmedical sources, the more
persuasive the medical opinions will be. Id., citing 20 C.F.R. § 404.1520c(c)(2).
Supportability focuses on the fit between medical opinion offered by the source and the
underlying evidence presented by the source to support that opinion, while consistency
focuses on how well a medical source opinion is supported by the entire record.
Rosario v. Comm’r of Soc. Sec’y, 20 Civ. 7749, 2022 WL 819810, at *8 (S.D.N.Y. Mar.
18, 2022). “Even though ALJs are no longer directed to afford controlling weight to
treating source opinions – no matter how well supported and consistent with the record
they may be – the regulations still recognize the ‘foundational nature’ of the
observations of treating sources, and ‘consistency with those observations is a factor in
determining the value of any [treating source’s] opinion.’” Id., quoting Shawn H. v.
Comm’r of Soc. Sec’y, 2020 WL 3969879, at *6 (D. Vt. July 14, 2020) (alteration in
original).
Mary Burdick. D.O., and Amber Mallet, LMSW, signed a Psychological
Assessment for Determination of Employability completed on November 12, 2019,
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indicating a diagnosis of schizoaffective disorder, depressive type, and inpatient
hospitalizations in December of 2017, July of 2018, August of 2018, and May of 2019,
as well as outpatient treatment with Strong Ties since November of 2018. Dkt. #7,
pp.1684-1687. Plaintiff’s most recent mental status examination reflected full range
affect, cooperative demeanor, normal thought process and content, and fair impulse
control. Dkt. #7, p.1686. Dr. Burdick and LMSW Mallet indicated that plaintiff would be
unable to regularly attend to a routine and maintain a schedule; markedly limited in her
ability to respond appropriately to coworker or supervisors, maintain attention and
concentration for rote tasks, deal with normal work stress, and work in coordination with
or proximity to others without being unduly distracted; and would be moderately limited
in her ability to follow, understand and remember simple instructions and directions and
perform simple tasks independently. Dkt. #7, p.1686.
Plaintiff underwent a consultative psychiatric examination with Christine
Ransom, Ph.D., on December 30, 2019. Dkt. #7, pp.393-396. Plaintiff reported that
signs and symptoms of schizophrenia were currently in remission on medication, but
she continued to experience signs and symptoms of depression and has not been able
to find an antidepressant that works without exacerbating her schizophrenia. Dkt. #7,
p.393. Upon examination, plaintiff was observed to have a neutral mood with a full
range of affect. Dkt. #7, p.394. She was able to count backwards from 20, do simple
calculations and serial sevens without error. Dkt. Dkt. #6, p.395. She could remember
3/3 objects immediately and after 5 minutes. Dkt. #7, p.395. Her insight and judgment
was assessed as good. Dkt. #7, p.395. Dr. Ransom opined that the results of the
evaluation appear to be consistent with a mild psychiatric condition that will mildly
interfere with her ability to function on a daily basis, specifying that plaintiff would
show mild limitation understanding, remembering and
applying simple and complex directions and instructions,
using judgment and reasoning to make work related
decision, interact adequately with supervisors, coworker and
[the] public, sustain concentration to perform a task at a
consistent pace, sustain an ordinary routine and regular
attendance at work, regulate emotions, control behavior and
maintain well being and be aware of normal hazards and
take precautions. She is able to regulate emotions, control
behavior and maintain well being. Areas of difficulty are
secondary to major depressive disorder, currently mild.
Dkt. #7, p.395.
State agency decision maker D. Brown, Psy.D., completed a residual
functional capacity assessment on March 30, 2020, indicating that plaintiff had mild
limitations understanding, remembering or applying information and adapting or
managing oneself; and moderate limitations interacting with others and with
concentration, persistence and pace, which demonstrated the capacity to do unskilled
work on a sustained basis. Dkt. #7, p.75.
Dr. Burdick and LMSW Mallet signed a subsequent Medical Source
Opinion - Psychological, on July 6, 2020, indicating that plaintiff would be unable to
meet competitive standards with respect to the following aptitudes needed to perform
unskilled work: maintain regular attendance and be punctual within customary
tolerances; work in coordination with or proximity to others without being unduly
distracted; complete a normal workday and workweek without interruptions from
psychologically based symptoms; accept instructions and respond appropriately to
criticism from supervisors; and respond appropriately to changes in a routine work
setting. Dkt. #7, p.514. They also indicated that plaintiff would be seriously limited in her
ability to remember work-like procedures; maintain attention for a two hour segment;
sustain an ordinary routine without special supervision; make simple work-related
decisions; ask simple questions or request assistance; get along with co-workers or
peers without unduly distracting them or exhibiting behavioral extremes; and deal with
normal work stress. Dkt. #7, p.514. Dr. Burdick and LMSW Mallet opined that plaintiff
had a marked limitation in her ability to understand, remember or apply information and
to concentrate, persist or maintain pace; and a moderate limitation in her ability to
interact with others and adapt or manage oneself. Dkt. #7, p.515.
Dr. Burdick and LMSW Mallet signed another Medical Source Opinion on
December 22, 2020 indicating improvement of plaintiff’s ability to maintain regular
attendance and be punctual within customary tolerances; accept instructions and
respond appropriately to criticism from supervisors; and respond appropriately to
changes in a routine work setting to seriously limited and a deterioration in her ability to
get along with co-workers or peers without unduly distracting them or exhibiting
behavioral extremes to a level where she was unable to meet competitive standards,
with all other limitations from the prior medical source opinion remaining constant. Dkt.
#7, p.1682. Dr. Burdick and LMSW Mallet opined that plaintiff continued to experience
a marked limitation in her ability to concentrate, persist or maintain pace and a
moderate limitation in her ability to interact with others and adapt or manage oneself,
with improvement in her ability to understand, remember or apply information to the
level of a moderate limitation. Dkt. #7, p. 1683.
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The ALJ determined that Dr. Burdick’s opinions were not persuasive
because they were “not supported by the treatment records, which show normal mental
status examinations, controlled symptoms with therapy and medication and . . . no
issues performing . . . activities of daily living.” Dkt. #7, p.30. The ALJ found Dr.
Ransom’s opinion partially persuasive because it was consistent with her own
examination of plaintiff and supports the conclusion that plaintiff’s psychiatric
impairment was not disabling, but “given her past history of multiple psychiatric
hospitalizations, use of psychotropic medication and ongoing treatment,” the ALJ
determined that plaintiff “exhibits more severe degrees of . . . paragraph B criteria” and
assessed moderate limitations for understanding, remembering or applying information;
interacting with others; concentrating, persisting or maintaining pace; and adapting or
managing oneself. Dkt. #7, pp.26 & 30. The ALJ found the state agency decision
maker’s opinion persuasive because such consultants are familiar with SSA regulations
and the opinion was consistent with the weight of the medical record, but because Dr.
Brown did not have an opportunity to examine plaintiff or listen to her testimony, the
ALJ gave the plaintiff’s “allegations the benefit of the doubt and found she
demonstrates moderate limitations in all of the ‘paragraph B’ criteria.” Dkt. #7, p.30. The
ALJ’s detailed review of plaintiff’s medical records note normal mental status
examinations and reports that plaintiff was compliant with medication and counseling
with controlled symptoms, with one exception when plaintiff reported she lapsed with
her medication and experienced increased anxiety, racing thoughts and paranoia. Dkt.
#7, pp.28-29.
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Plaintiff argues that the ALJ failed to sufficiently consider the impact of
plaintiff’s moderate limitations in the functional area of concentration, persistence, and
pace upon her ability to perform even simple, routine, repetitive work. Dkt. #9-1, pp.16-
18. Plaintiff further argues that the ALJ failed to properly evaluate the opinions of
plaintiff’s treating psychiatrist, Dr. Burdick; erred in relying upon non-examining state
agency decision makers; and selectively cherry picked from the record while
overlooking ongoing severe mental health symptoms and adjustments to plaintiff’s
medications. Dkt. #9-1, pp.18-25.
The Commissioner argues that the ALJ’s RFC determination is supported
by substantial evidence, including plaintiff’s mental status examinations and mental
health records, which indicated plaintiff was doing well with treatment. Dkt. #11-1, pp.6-
9. The Commissioner argues that the ALJ properly weighed the opinion evidence and
reasonably relied upon plaintiff’s normal mental status examinations and reported
improvement, as well as her activities of daily living in determining her RFC. Dkt. #11-1,
pp.9-13 & 18-23. Furthermore, the Commissioner argues that the ALJ appropriately
accounted for plaintiff’s moderate limitations in concentration, persistence, or pace by
limiting plaintiff to simple, routine, repetitive work-related tasks with only occasional
decision making and changes in the workplace. Dkt. #11-1, pp.14-16.
Plaintiff replies that the ALJ failed to perform a more detailed assessment
of the functional limitations resulting from her moderate limitation in her ability to
maintain concentration, persistence, and pace. Dkt. #12, pp.1-4. Plaintiff argues that
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limiting her to simple, routine, repetitive and low stress work was insufficient. Dkt. #12,
pp.5-6. Plaintiff also argues that the ALJ failed to sufficiently explain his rejection of Dr.
Burdick’s opinion. Dkt. #12, pp.6-7.
While sympathetic to plaintiff’s significant prior history of multiple
psychiatric hospitalizations, the record of evidence for the time period relevant to this
decision supports the ALJ’s assessment of plaintiff’s RFC and, more specifically, his
assessment of the opinion evidence. As the ALJ explained in his decision, review of
plaintiff’s treatment records for the relevant time period does not support the level of
functional limitations suggested by plaintiff’s treating physicians. In any event, the ALJ’s
reliance upon the opinions of the state agency medical consultant and consultative
examiner is permissible. See Jose F. v. O’Malley, 22-CV-325, 2024 WL 4210900, at *8
(W.D.N.Y. Sept. 17, 2024) (state agency medical consultant and consultative examiner
are deemed to be highly qualified physicians who are experts in Social Security
disability evaluations and an ALJ is entitled to rely upon their opinions, which can also
serve as substantial evidence). Moreover, the ALJ’s decision to impose more severe
limitations than the state agency decision maker and consultative examiner found
warranted, is not a basis for remand. See Lesanti v. Comm’r of Soc. Sec., 436 F.
Supp.3d 639, 649 (W.D.N.Y. 2020) (internal quotation omitted) (“remand is generally
not warranted where the ALJ’s RFC finding is more restrictive than the opinions set
forth in the medical opinions of record.”); See also, Ramsey v. Comm’r of Soc. Sec.,
830 Fed. App’x 37, 39 (2d Cir. 2020) (ALJ committed no error by deviating from
consultative examiners’ recommendations to decrease plaintiff’s RFC based on other
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evidence in the record). In sum, the ALJ’s determination to limit plaintiff to simple,
routine, repetitive work-related tasks with only occasional contact with the public, co-
workers and supervisors and only occasional decision making or changes in the work
place, is clearly explained and adequately accounts for plaintiff’s mental status during
the time period relevant to this application.
CONCLUSION
Based on the foregoing, plaintiff’s motion for judgment on the pleadings
(Dkt. #9), is denied and the Commissioner’s motion for judgment on the pleadings (Dkt.
#11), is granted.
The Clerk of the Court is directed to close this case.
SO ORDERED.
DATED: Buffalo, New York
March 31, 2025
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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