Atkinson v. Commissioner of Social Security

Filing 15

DECISION AND ORDER denying # 12 Plaintiff's motion for judgment on the pleadings; and granting # 13 Defendant's motion for judgment on the pleadings. The Defendant's decision denying Plaintiff disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 4/6/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
AARON J. ATKINSON,
Plaintiff,
v.

5:16-CV-0809
(GTS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF PETER W. ANTONOWICZ
Counsel for Plaintiff
148 West Dominick Street
Rome, NY 13440

PETER W. ANTONOWICZ, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

SERGEI ADEN, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Aaron Atkinson
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions for judgment on
the pleadings. (Dkt. Nos. 12, 13.) For the reasons set forth below, Plaintiff’s motion for
judgment on the pleadings is denied, and Defendant’s motion for judgment on the pleadings is
granted. The Commissioner’s decision denying Plaintiff’s disability benefits is affirmed, and
Plaintiff’s Complaint is dismissed.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1962 and was 51 years old on the date he filed his application.
Plaintiff has at least a high school education and past work as a truck driver, dump truck driver,
and hunting guide. Generally, Plaintiff alleged disability consisting of herniated discs with
degenerative disc disease, emphysema, arthritis, a right rotator cuff tear, depression, and anxiety.
B.

Procedural History

Plaintiff applied for Supplemental Security Income on June 12, 2013, alleging disability
beginning August 1, 2002. Plaintiff’s application was initially denied on September 16, 2013,
after which he timely requested a hearing before an Administrative Law Judge (“ALJ”). On
January 15, 2015, Plaintiff appeared at a video hearing before ALJ Lisa B. Martin. (T. 11, 2870.) On April 24, 2015, the ALJ issued a written decision finding Plaintiff not disabled under
the Social Security Act. (T. 11-25.) On June 6, 2016, the Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of the Commissioner. (T. 1-3.)
C.

The ALJ’s Decision

Generally, in her decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 13-21.) First, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since June 12, 2013, the application filing date. (T. 13.) Second, the ALJ found
that Plaintiff’s lumbar spine disorder with associated stage-two spondylolosthesis, spina bifida
accula at L5, chronic obstructive pulmonary disease, depression, and anxiety are severe
impairments. (T. 13.) Third, the ALJ found that Plaintiff’s severe impairments, alone or in
combination, do not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, App. 1 (the “Listings”). (T. 14-15.) More specifically, the ALJ considered Listings
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1.00 (musculoskeletal system impairments), 3.00 (respiratory disorders), 12.00 (mental
disorders), 12.04 (affective disorders), and 12.06 (anxiety-related disorders). (Id.) Fourth, the
ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform
a full range of light work as defined in 20 C.F.R. 416.967(b), except
the claimant must avoid all climbing of ladders, ropes, and
scaffolding, and is limited to occasional climbing of ramps and
stairs, balancing, stooping, kneeling, crouching, and crawling. The
claimant must also avoid all dangerous work hazards (including
unprotected heights and exposed machinery), all exposure to
extreme heat, humidity, and cold, and all exposure to concentrated
pulmonary irritants. The claimant will further need a brief (one to
two minutes) change in position opportunity as often as every 30
minutes for one to two minutes. The claimant also needs a work
setting requiring no more than occasional work interactions with coworkers, supervisors, and the public.
(T. 15.) Fifth, the ALJ found that Plaintiff has past work as a truck driver (medium, SVP 3),
dump truck driver (medium, SVP 2), and hunting guide (very heavy, SVP 7), though the ALJ
also found that Plaintiff is unable to perform this past work based on the restrictions in the RFC.
(T. 19-20.) Sixth, and finally, the ALJ determined that there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform, including packer, cleaner, and
sorter. (T. 20-21.)
D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff asserts two arguments in support of his motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ failed to properly develop the record by failing to
retain the services of a consultative examiner or to contact the treating sources to either provide a
consultative examination or answer questions regarding Plaintiff’s specific impairments. (Dkt.
No. 12, at 7-8 [Pl.’s Mem. of Law].) Within this argument, Plaintiff asserts that the ALJ was
required to obtain a consultative examination because the ALJ’s finding that Plaintiff had severe
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impairments conflicted with the findings of the Single Decision Maker 1 who made the initial
Agency determination of non-disability. (Id.) Plaintiff implies that, had the Single Decision
Maker properly found a severe impairment at that earlier stage, he would have been required to
obtain a consultative examination, and so the ALJ should have obtained a consultative
examination upon determining severe impairments were present. (Id.)
Second, Plaintiff argues that the ALJ failed to give appropriate weight to the opinions of
the treating social worker and treating nurse practitioner by failing to provide adequate reasons
for discrediting these opinions and instead substituting her own opinion in place of the opinions
present in the record. (Id. at 8-10.) Specifically, Plaintiff argues that the ALJ improperly
rejected these opinions because the providing nurse practitioner and social worker were not
classified as “medically acceptable sources” under the regulations rather than affording those
opinions appropriate consideration as required by SSR 06-03p. (Id.)
Generally, Defendant asserts two counter-arguments in support of her motion for
judgment on the pleadings. First, Defendant argues that the ALJ was not required to seek a
consultative examination or other further evidence because there was sufficient evidence in the
record for her to render a finding that was supported by substantial evidence about whether or
not Plaintiff was disabled. (Dkt. No. 14, at 5-7 [Def.’s Mem. of Law].)
Second, Defendant argues that the ALJ properly evaluated the opinions in question
(which were not medical opinions) because she provided adequate reasons supported by

1

“[Single Decision Makers] are ‘non-physician disability examiners who may make the
initial disability determination in most cases without requiring the signature of a medical
consultant.’” Medick v. Colvin, No. 5:15-CV-0341, 2017 WL 886944, at *14 (N.D.N.Y., Mar. 6,
2017) (quoting Lozama v. Colvin, No. 1:13-CV-0020, 2016 WL 1259411, at *5 (N.D.N.Y., Mar.
30, 2016)).
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substantial evidence for discrediting the opinions pursuant to applicable legal standards. (Id. at
7-11.) As a corollary to this second argument, Defendant also argues that the ALJ was permitted
to analyze and weigh the evidence when formulating her RFC assessment without relying on a
specific functional opinion. (Id. at 10-11.)
II.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether an
individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906 F.2d
856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if the
correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord, Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts 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, 91 S. Ct. 1420, 1427 (1971).
Where evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982).

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“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining 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 finding must be sustained “even where substantial
evidence may support the plaintiff’s position 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). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his 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 is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is
afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed
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impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines whether there is
other work which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of the proof as
to the first four steps, while the [Commissioner] must prove the final
one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982), accord, McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III.

ANALYSIS
A.

Whether the ALJ Failed to Adequately Develop the Record

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 5-7 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
As explained above in Part I.D. of this Decision and Order, Plaintiff argues that the
record in this matter was not completely developed because the ALJ never sought the assistance
of a consultative examination from either a consultative examiner or one of the treating sources.
(Dkt. No. 12, at 7-8 [Pl. Mem. of Law].) Plaintiff asserts that this is error because the ALJ found
that Plaintiff had numerous severe impairments, a finding that conflicted with the findings of the
Single Decision Maker who made the initial unfavorable determination on Plaintiff’s claim. (Id.)
Plaintiff argues that this conflict necessitated the ALJ to order a consultative examination for an
assessment of Plaintiff’s functional abilities.
Although the claimant has the general burden of proving that he or she has a disability
within the meaning of the Social Security Act, “‘the ALJ generally has an affirmative obligation
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to develop the administrative record’” due to the non-adversarial nature of a hearing on disability
benefits. See Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting Melville v. Apfel, 198
F.3d 45, 52 (2d Cir. 1999); citing Draegert v. Barnhart, 311 F.3d 468 (2d Cir. 2002), Butts v.
Barnhart, 388 F.3d 377, 383 (2d Cir. 2004)). “Where there are no obvious gaps in the
administrative record, and where the ALJ already possesses a ‘complete medical history,’ the
ALJ is under no obligation to seek additional information in advance of rejecting a benefits
claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41,
48 (2d Cir. 1996)). “The ALJ has discretion to order a consultative examination to further
develop the evidentiary record.” Cox v. Astrue, 993 F.Supp.2d 169, 177 (N.D.N.Y. 2012) (citing
Serianni v. Astrue, No. 6:07-CV-250, 2010 WL 786305, at *5 (N.D.N.Y., Mar. 1, 2010)); see
also 20 C.F.R. 416.917. “‘Several courts have held . . . that in fulfilling the duty to conduct a
full and fair inquiry, an ALJ is required to order a consultative examination where the record
establishes that such an examination is necessary to enable the ALJ to render a decision.’” Cox,
993 F.Supp.2d at 177 (quoting Serianni, No. 6:07-CV-250, 2010 WL 786305, at *5).
“Generally, the ALJ should order a consultative examination when ‘a conflict, inconsistency,
ambiguity, or insufficiency in the evidence must be resolved.’” Id. “However, the ALJ ‘is not
obligated to send a litigant for a consultative examination if the facts do not warrant or suggest
the need for such an examination.’” Id.
As an initial matter, Plaintiff’s argument that the ALJ was obligated to obtain a
consultative examination due to the differences between the severity findings of the ALJ and
those of the Single Decision Maker is not availing. As this Court has noted previously, “ALJs
have been instructed by the Social Security Administration that the opinions of [Single Decision
Maker]s ‘should not be afforded any evidentiary weight at the administrative hearing level,’
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which has led numerous courts to conclude that assigning any evidentiary weight to a [Single
Decision Maker]’s opinion is an error.” Robles v. Comm’r of Soc. Sec., No. 5:15-CV-1359, 2016
WL 7048709, at *6 (N.D.N.Y., Dec. 5, 2016) (quoting Martin v. Astrue, No. 10-CV-1113, 2012
WL 4107818, at *15 (N.D.N.Y., Sept. 19, 2012)). Given that the ALJ was not permitted to rely
on the Single Decision Maker’s assessment, there is no error in her decision to make findings
contrary to that assessment, and that assessment does not create an inconsistency or gap in the
record that the ALJ was required to resolve. Notably, Plaintiff does not point to any authority
that indicates a consultative examination must be ordered in every case where a severe
impairment is found to be present. To the contrary, the law of this Court places that particular
decision within the discretion of the ALJ. See Cox, 993 F.Supp.2d at 177 (quoting Serianni, No.
6:07-CV-250, 2010 WL 786305, at *5). There is nothing to support Plaintiff’s vague argument
that the Agency would have been required to order a consultative examination had the Single
Decision Maker found a severe impairment during the initial-stage disability determination.
Similarly, Plaintiff does not point to any authority requiring the ALJ to obtain a
consultative examination when she determines there is a severe impairment causing specific
functional limitations based on her review of a complete record. As Defendant correctly notes,
Plaintiff’s argument constitutes little more than a generic statement that the record was
incomplete without pointing to any specific way in which the record was inadequate for the ALJ
to render a decision without the aid of a consultative examination. Examination of the record
shows treatment for Plaintiff’s impairments on a regular basis throughout the period covered by
the ALJ’s decision, including office visits, physical therapy, pain management, and attempts at
mental health treatment. The record also includes opinions from treating physician Warren
Wulff, M.D., treating Nurse Practitioner Mara Morabito, F.N.P., and Melissa Smzek, L.M.S.W.9

LP. (T. 320-21, 540-41, 586-87.) Plaintiff himself notes in his brief that “[t]here were ample
source statements assessing the plaintiff’s limitations from treating sources.” (Dkt. No. 12, at 8
[Pl. Memo. of Law].) Based on the frequency and regularity of Plaintiff’s medical treatment and
the presence of multiple medical source statements in the record, there is no basis for Plaintiff’s
assertions that the medical evidence in the record was somehow insufficient to enable the ALJ to
make a determination. Nor is there any apparent inconsistency, ambiguity, or conflict that the
ALJ failed to resolve that would necessitate further development of the record. See Cox, 993
F.Supp.2d at 177 (quoting Serianni, No. 6:07-CV-250, 2010 WL 786305, at *5). The ALJ
discussed pertinent medical evidence, indicated the weight she accorded to each opinion in the
record, and provided reasons supporting her findings. The Court does not find anything in its
review of the record that would necessitate turning the ALJ’s discretionary ability to order a
consultative examination into a mandatory duty in this case, or that would require remand for
further development of the record.
For all these reasons, the ALJ’s decision not to seek a consultative examination or other
further evidence was supported by substantial evidence, and remand is not required on this basis.
B.

Whether the ALJ Erred in Evaluating the Opinion Evidence

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 7-11 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
The regulations indicate that acceptable medical sources include licensed physicians,
licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified
speech-language pathologists. 20 C.F.R. §§ 404.1513(a)(1)-(5), 416.913(a)(1)-(5). By contrast,
SSR 06-03p indicates that sources such as nurse practitioners, physician assistants, licensed
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clinical social workers, naturopaths, chiropractors, audiologists, and therapists are considered
“other sources.” SSR 06-03p. In weighing opinion evidence from other sources, the ALJ should
assess these opinions using factors including (1) the length of time the source has known the
claimant and the frequency of treatment, (2) the consistency of the opinion with the other
evidence, (3) the degree to which the source provides evidence to support the opinion and the
quality of explanation provided, (4) whether the source has any specialty or expertise in the area
of treatment, and (5) any other factors tending to support or refute the opinion. Id. However,
opinions from other sources are not medical opinions that are entitled to any particular weight
under the regulations. 20 C.F.R. §§ 416.1913(a), 416.927(b).
Social Worker Smzek opined on October 8, 2014 that Plaintiff had the following
limitations: extreme restrictions 2 in his abilities to relate to acquaintances and familiar people;
deal with the public; relate with authority figures; deal with stress; maintain attention and
concentration; behave in an emotionally stable manner; relate predictably in social situations;
and demonstrate reliability, marked restrictions 3 in his abilities to follow rules; use judgement;
and function independently, and a moderate restriction 4 in his ability to maintain personal
appearance. (T. 540.) Social Worker Smzek also opined that depression, fatigue, and
concentration deficits would cause Plaintiff to be off-task at least 50 percent of an eight-hour

2

The form used defines an “extreme” restriction as “no ability to function in this area for
any appreciable period of time during an 8 hour period of time on a daily basis.” (T. 540.)
3

The form defines a “marked” restriction as “effectively precluded from performing the
activity consistently and without interruption due to symptoms throughout an 8 hour period of
time on a daily basis.” (Id.)
4

The form defines a “moderate” restriction as the “individual retains the ability to sustain
this activity consistently and without interruption due to symptoms throughout an 8 hour period
of time despite the presence of limitations.” (Id.)
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block of time, would produce “good days” and “bad days,” and would cause Plaintiff to likely be
absent more than four days per month due to his symptoms and treatment. (T. 541.)
Nurse Practitioner Morabito opined on March 15, 2015 that, due to his spinal
impairments, Plaintiff had the following restrictions: lifting and carrying ten pounds on a
frequent basis; standing or walking ten minutes or less at one time and four hours or less total in
an eight-hour day without a supportive device; sitting four hours or less total in an eight-hour
day; occasionally balancing and kneeling; and never climbing, crouching, crawling, or stooping.
(T. 586-87.) Nurse Practitioner Morabito also opined that Plaintiff would have “good days” and
“bad days” due to his impairments, would likely be absent four or more times per month due to
his impairments and treatment, and that, per Plaintiff’s report, he would be off-task a least 25
percent of an eight-hour block of time. (T. 587.) She opined he would have no restrictions in
reaching, handling, fingering, or feeling and would not need to recline his legs during the
workday. (T. 586-87.)
The ALJ afforded little weight to Nurse Practitioner Morabito’s opinion, finding that her
restrictions were inconsistent with the record, which included a brief attempt at physical therapy
and pain management care. (T. 19.) The ALJ likewise afforded little weight to the opinion from
Social Worker Smzek, finding that it was not supported by the evidence in the record, including
evidence that Plaintiff’s treatment was partly for substance abuse rather than mental impairments
and that Plaintiff was non-compliant with his prescribed mental health treatment. (Id.)
Plaintiff argues that the ALJ improperly rejected the opinions from Nurse Practitioner
Morabito and Social Worker Smzek, asserting that the ALJ was not entitled to reject these
opinions based on the fact that they were from sources who were not considered medically
acceptable under the Regulations. (Dkt. No. 12, at 8-9 [Pl. Mem. of Law].) Plaintiff notes that
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SSR 06-03p requires adjudicators to give appropriate consideration to opinions from these other
sources. (Id.)
While Plaintiff is correct that the ALJ is required to consider opinions from other sources,
Plaintiff’s assertion that the ALJ failed to do so here is not correct. SSR 06-03p. Contrary to
Plaintiff’s argument, the ALJ did not reject the opinions from Nurse Practitioner Morabito and
Social Worker Smzek solely because they were not medically acceptable sources. (T. 19.)
Rather, the ALJ explicitly stated that she found both of these opinions were not consistent with
or supported by the evidence in the record, providing specific examples in addition to the general
summary of the medical treatment evidence contained previously in the ALJ’s decision. (Id.)
As Defendant correctly points out, because neither of these sources was considered to be a
medically acceptable source under the regulations, the standard for assessing them was not as
stringent as for assessing an opinion from a treating physician. See Burgess v. Astrue, 537 F.3d
117, 129-30 (2d Cir. 2008) (specifying that the ALJ must comprehensively set forth good
reasons for the weight assigned to a treating physician’s opinion); see also Saxon v. Astrue, 781
F.Supp.2d 92, 104 (N.D.N.Y. 2011). The ALJ was not required to provide “good reasons” as she
would have needed to for a treating physician, even if she was still required to evaluate these
opinions using many of the same factors applicable to weighing medical opinion evidence.
Given that the ALJ did not need to provide “good reasons,” but instead needed only to
show that she had considered these other source opinions according to the appropriate factors,
this Court finds the ALJ met that legal standard. The ALJ specifically indicated that she found
each of the two opinions were not consistent with or supported by the treatment evidence in the
record, discussed pertinent treatment evidence in her narrative, acknowledged the relationships
between these sources and Plaintiff, and acknowledged their credentials and the areas and types
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of treatment each provided. (T. 16-19.) The ALJ’s discussion therefore satisfies the
requirements for weighing opinion evidence from other sources. SSR 06-03p.
Notably, Plaintiff does not appear to challenge the ALJ’s decision to afford little weight
to the opinion from Dr. Wulff in his arguments. (Dkt. No. 12, at 8-9 [Pl. Mem. of Law].) On
March 20, 2013, Dr. Wulff opined that Plaintiff was “very limited” in his abilities to walk, stand,
sit, lift, carry, push, pull, bend, and climb due to his spinal impairment. (T. 320-31.) Dr. Wulff
specifically noted that these restrictions were expected to last only four to six months, though he
also indicated that Plaintiff reported he had been experiencing back problems for more than ten
years. (T. 321.) The ALJ afforded little weight to Dr. Wulff’s opinion, noting that Dr. Wulff
had just started treating Plaintiff around the time he provided the opinion and “may have been
relying on [Plaintiff’s] subjective reports of symptoms and limitations.” (T. 19.) Given that Dr.
Wulff opined that Plaintiff’s restrictions would not last at least 12 months, his opinion does not
support Plaintiff’s assertions of disability and therefore this Court need not reach whether the
reasons the ALJ provided for affording it little weight were sufficient, as any potential errors
would be harmless. Ryan, 650 F.Supp.2d at 217.
Additionally, Plaintiff asserts generally that the ALJ improperly offered her own opinion
about the extent to which Plaintiff’s symptoms caused limitations in place of medical opinions.
(Dkt. No. 12, at 8 [Pl. Memo. of Law].) More specifically, Plaintiff implies that the ALJ
committed error because he did not rely on any examining source opinion when deriving the
RFC. (Dkt. No. 12, at 3 [Pl. Memo. of Law].) However, there is no legal requirement that the
ALJ rely on a medical opinion in every case to formulate the RFC. Rather, the ALJ has the
responsibility of reviewing all the evidence before her, resolving inconsistencies, and making a
determination consistent with the evidence as a whole. See Bliss v. Colvin, No. 3:13-CV-1086,
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2015 WL 457643, at *7 (N.D.N.Y., Feb. 3, 2015) (“It is the ALJ’s sole responsibility to weigh
all medical evidence and resolve material conflicts where sufficient evidence provides for
such.”); Petell v. Comm’r of Soc. Sec., No. 7:12-CV-1596, 2014 WL 1123477, at *10 (N.D.N.Y.,
Mar. 21, 2014) (“It is the ALJ’s sole responsibility to weigh all medical evidence and resolve
material conflicts where sufficient evidence provides for such.”). In formulating a plaintiff’s
RFC, an ALJ does not have to adhere to the entirety of one medical source’s opinion. See Matta
v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013) (“Although the ALJ's conclusion may not perfectly
correspond with any of the opinions of medical sources cited in his decision, he was entitled to
weigh all of the evidence available to make an RFC finding that was consistent with the record
as a whole.”); Zongos v. Colvin, 5:12-CV-1007, 2014 WL 788791, at *9 (N.D.N.Y. Feb. 25,
2014) (finding that it was within the ALJ’s discretion to afford weight to a portion of a treating
physician’s opinion but not to another portion). The ALJ’s decision shows that she considered
the medical evidence in the record and formulated the RFC based on her review of that evidence.
Notably, Plaintiff does not even assert that the medical treatment evidence (other than the
opinion evidence, which, as already discussed, the ALJ provided proper reasons for discrediting)
showed restrictions greater than what the ALJ accounted for in the RFC. In fact, while the
medical evidence does show ongoing symptoms related to Plaintiff’s spinal condition in
particular, those symptoms and findings do not suggest that Plaintiff would be unable to perform
work as expressed in the ALJ’s RFC finding. Nor do the limited mental findings and treatment
indicating contributing substance abuse and non-compliance with prescribed therapy suggest that
Plaintiff’s mental functioning was more limited. Because the ALJ provided sufficient reasons
for the weight afforded to the opinion evidence and there is no indication that she failed to assess
material evidence from the adequate record before her, the ALJ was entitled to resolve
15

inconsistencies between the opinion evidence and the medical evidence and to formulate the
RFC without relying on any specific opinion.
For all these reasons, the ALJ’s evaluation of the opinion evidence was supported by
substantial evidence and remand is not required on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 13) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: April 6, 2017
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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