Perez v. Colvin

Filing 17

DECISION AND ORDER granting 10 Commissioner's Motion for Judgment on the Pleadings and denying Plaintiff's motion for judgment on the pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/20/19. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
DENISE R. PEREZ,
Plaintiff,

1:17-cv-00069-MAT
DECISION AND ORDER

-vNANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
____________________________________

INTRODUCTION
Denise

R.

Perez

(“Plaintiff”),

represented

by

counsel,

brings this action under Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Acting Commissioner of Social Security (“the Commissioner” or
“Defendant”) denying her applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). The
Court has jurisdiction over the matter pursuant to 42 U.S.C.
§§ 405(g), 1383(c). Presently before the Court are the parties’
competing

motions

for

judgment

on

the

pleadings

pursuant

to

Rule 12(c) of the Federal Rules of Civil Procedure. For the
reasons

set

forth

below,

Plaintiff’s

motion

is

denied,

and

Defendant’s motion is granted.
PROCEDURAL BACKGROUND
On

October

applications

for

7,
DIB

2013,
and

Plaintiff
SSI,

alleging

protectively
disability

filed
as

of

September

1,

2012,

degenerative

discs,

due

to

morbid

herniated

obesity,

discs,

right

osteoarthritis,
and

left

knee

problems, plantar fasciitis in both feet, asthma, anxiety, and
panic attacks. Administrative Transcript (“T.”) 87-88. The claims
were

initially

denied

on

January

2,

2014.

T.

116-27.

At

Plaintiff’s request, a hearing was conducted on November 30,
2015, in Buffalo, New York by administrative law judge (“ALJ”)
Stephen

Cordovani.

Plaintiff

appearing

with

her

attorney

and

testified. A vocational expert (“VE”) also testified. T. 30-85.
The ALJ issued an unfavorable decision on January 11, 2016. T. 929. Plaintiff appealed the decision to the Appeals Council, which
denied

Plaintiff’s

request

making

the

decision

ALJ’s

for
the

review

on

final

December

30,

determination

2016,

of

the

Commissioner. T. 1-3. This action followed.
THE ALJ’S DECISION
The

ALJ

promulgated

by

applied
the

the

five-step

Commissioner

for

sequential

evaluation

adjudicating

disability

claims. See 20 C.F.R. §§ 404.1520(a) and 416.920(a). Initially,
the

ALJ

determined

that

Plaintiff

met

the

insured

status

requirements of the Act through December 31, 2016. T. 14.
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since
September 1, 2012, the alleged onset date. Id.
2

At

step

following

two,

the

“severe”

ALJ

determined

impairments:

that

Plaintiff

bilateral

knee

had

the

problems,

degenerative disc disease, asthma, morbid obesity, anxiety and
depressive disorders, posttraumatic stress disorder (“PTSD”), and
bipolar disorder. Id.
At step three, the ALJ found that Plaintiff’s impairments
did not singly or in combination meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. T. 15. The ALJ specifically considered
Listings

1.02

(Major

Dysfunction

of

a

Joint);

3.02

(Chronic

Respiratory Disorders); 12.04 (Depressive, Bipolar and Related
Disorders);

and

12.06

(Anxiety

and

Obsessive-Compulsive

Disorders). The ALJ also evaluated Plaintiff’s severe impairment
of morbid obesity pursuant to the guidelines set forth in Social
Security Ruling (“SSR”) 02-1p 2002 WL 34686281 (S.S.A. 2002). Id.
Before proceeding to step four, the ALJ found that Plaintiff
retained
sedentary

the

residual

work

as

functional

defined

in

capacity

20

C.F.R.

(“RFC”)
§§

to

perform

404.1567(a)

and

416.967(a), with the following additional limitations: can only
occasionally

climb

ramps,

stairs,

and

balance;

can

only

occasionally bend, and can never kneel, crouch, or crawl; can
never

climb

ladders,

ropes,

or

scaffolds;

cannot

work

at

unprotected heights; should avoid concentrated exposure to fumes,
3

odors,

dusts,

irritants;

gases,

can

poor

ventilation,

understand,

remember,

and

other

and

carry

respiratory
out

simple

instructions and tasks; can occasionally perform complex tasks;
is capable of low stress work defined further as no supervisory
duties, no independent decision-making, with minimal changes in
work routine and processes; is limited to occasional interaction
with

supervisors,

coworkers

and

the

general

public;

and

is

limited to sitting continuously for no more than one hour at a
time with five-minute walking breaks every hour. T. 17.
At step four, the ALJ concluded that Plaintiff is unable to
perform any past relevant work as a telemarketer or collection
clerk. T. 22. At step five, the ALJ found that, considering
Plaintiff’s age, education, work experience, and RFC, there are
jobs that exist in significant numbers in the national economy
that

Plaintiff

could

perform,

including

the

representative

occupations of stuffer, envelope addresser, and printed circuit
board assembler. T. 23. The ALJ accordingly found that Plaintiff
was not disabled as defined in the Act. T. 24.
SCOPE OF REVIEW
A

district

court

may

set

aside

the

Commissioner’s

determination that a claimant is not disabled if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error.
4

42 U.S.C. § 405(g); see also

Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
The district court must accept the Commissioner’s findings of
fact, provided that such findings are supported by “substantial
evidence”

in

the

Commissioner’s
substantial

record.

findings

evidence,

“as
shall

See

42

U.S.C.

to

any

fact,

be

§

405(g)

if

supported

conclusive”).

(the
by

“Substantial

evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000) (quotation omitted). The reviewing
court nevertheless must scrutinize the whole record and examine
evidence that supports or detracts from both sides. Tejada v.
Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation omitted). “The
deferential standard of review for substantial evidence does not
apply

to

the

Commissioner’s

conclusions

of

law.”

Byam

v.

Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v.
Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
DISCUSSION
Plaintiff contends that remand is warranted because: (1) the
ALJ

failed

to

properly

evaluate

the

opinions

of

Plaintiff’s

treating sources; and (2) the ALJ failed to properly consider
Plaintiff’s
discussed

obesity
below,

the

in

assessing

Court

finds

5

her

RFC.

For

Plaintiff’s

the

reasons

arguments

are

without merit, and accordingly affirms the Commissioner’s final
determination.
I.

The Relevant Medical Opinions of Record
The record contains opinions from several of Plaintiff’s

treating

sources,

including

orthopedic

surgeon

Dr.

Stefan

Fornalski, internist Dr. John Bauers, licensed clinical social
worker (“LCSW”) Christina Polino, and board certified psychiatric
mental health nurse practitioner (“PMHNP-BC”) April Kilgour.
A.

Opinion of Dr. Fornalski

Dr. Fornalski performed an arthroscopy on Plaintiff’s left
knee on November 14, 2012. T. 797. At a follow-up appointment on
November

28,

improvement

2012,
of

Plaintiff

her

had

no

pre-operative

complaints
symptoms.

and
T.

reported
803.

On

September 26, 2013, Dr. Fornalski completed a work status report.
T. 1146. He noted that Plaintiff had left leg pain and would need
to

be

placed

on

permanent

modified

work

and

activity

restrictions. Specifically, Dr. Fornalski opined that Plaintiff
should sit no more than thirty cumulative minutes per hour and
that she should be allowed to alternate between standing and
walking during her non-seated periods. Id.
In

his

decision,

the

ALJ

gave

Dr.

Fornalski’s

opinion

“little” weight. The ALJ noted the opinion was not well explained
or

supported.

T.

21.

Moreover,
6

the

ALJ

noted,

the

opinion

appeared to indicate that Plaintiff was able to work and that the
walking and standing limitations assigned by Dr. FOrnalski were
relatively minor. Id.
B.
On

Opinions and Treatment Records of Dr. Bauers
September

5,

2014,

Dr.

Bauers

wrote

a

general,

unaddressed letter stating that Plaintiff was under his care for
several medical problems, including but not limited to asthma,
morbid obesity, congestive heart failure, and degeneration and
internal

derangement

of

both

knees.

Dr.

Bauers

opined

that

Plaintiff’s conditions and the effects of her medications limited
her ability to work on a regular basis. T. 1334.
On

October

26,

2015,

Dr.

Bauers

completed

a

Physical

Capacity Evaluation, a check-the-box form. T. 1756. Dr. Bauers
opined that Plaintiff was able to sit for one hour at a time and
stand or walk for half-an-hour at a time during an eight-hour
workday. He further stated that Plaintiff could sit for a total
of four hours during an eight-hour workday and stand or walk for
a total of two hours. Plaintiff could continuously lift up to ten
pounds, occasionally lift eleven to twenty-five pounds, and never
lift more than twenty-five pounds. Plaintiff could frequently
carry up to ten pounds, occasionally carry up to twenty pounds,
and never carry more than twenty pounds. Dr. Bauers opined that
Plaintiff was unable to use her feet for repetitive movements
7

such as pushing or pulling of leg controls and was unable to
bend, squat, crawl, or climb at any level. Finally, Dr. Bauers
opined that Plaintiff was totally restricted from working at
unprotected

heights

temperature

and

and

being

humidity,

exposed

dust,

to

fumes,

marked

and

changes

gases,

and

in
was

moderately restricted from working around moving machinery. Id.
The treatment records from Dr. Bauers’ office span from
July

25,

2015,

to

November

9,

2015,

and

cover

six

separate

visits. See T. 1727-72. The majority of the visits focused on
Plaintiff’s

bipolar

treatment

and

demonstrated

unremarkable

physical examinations. Plaintiff repeatedly expressed a desire to
reduce or stop her psychiatric medications. See T. 1734, 1736,
1740, 1769. However, Plaintiff acknowledged no one would be in
agreement with that plan, and Dr. Bauers advised her that he
would not be willing to agree to decrease her medications without
close monitoring, consent, and support of a psychiatrist. Id.
In all six of the treatment notes, Dr. Bauers included a
diagnosis

of

internal

derangement

of

her

knee.

However,

Dr. Bauers also noted that on examination, Plaintiff denied back
pain, bone pain, and joint pain. T. 1727, 1735, 1740, 1746, 1753,
1767.

On

relating

July
to

27,

2015,

Plaintiff’s

the

portion

knee

of

indicated

the
that

treatment
Plaintiff

note
was

dependent on narcotics and was “not likely to have any successful
8

intervention” in light of her “current weight status.” T. 1730.
On November 9, 2015, at a routine follow-up visit for medication
refills,

Plaintiff

complained

she

had

been

experiencing

knee

issues for the past few weeks. T. 1766. Dr. Bauers noted that
Plaintiff had significantly impaired ambulation and possibly had
aggravated

or

Dr.

noted

Bauers

dislodged

a

further

cartilage

orthopedic

or

meniscus

evaluations

fragment.

were

needed.

T. 1768. He also was unsure if physical therapy would help and
believed that Plaintiff was a poor surgical candidate due to her
obesity.

Id.

Dr.

Bauers

added

that

that

Plaintiff’s

morbid

obesity was due to excess calories and that she had undergone a
failed gastric bypass surgery. T. 1769.
In his decision, the ALJ gave Dr. Bauers’ opinions “little”
weight, noting that his recent opinions were not consistent with
Plaintiff’s treatment notes and activities. T. 21. He also noted
that Plaintiff only presented to Dr. Bauers for routine checkups, which regularly showed unremarkable physical examinations.
Furthermore, the ALJ noted that Plaintiff was physically active,
as she was able to go on trips and complete normal activities of
daily living. Id.
C.

Opinion of LCSW Polino and PMHNP-BC Kilgour

On October 20, 2015, LCSW Polino completed a Mental RFC
Questionnaire

that

was

later

co-signed
9

by

PMHNP-BC

Kilgour.

T. 1808-1812. LCSW Polino noted she had been treating Plaintiff
on a weekly to biweekly basis since March 31, 2014.
For
mental

clinical

status

findings,

examination

LCSW

was

Polino

within

reported

normal

Plaintiff’s

limits

and

her

current GAF score was 55. However, she opined that Plaintiff’s
extreme emotional outbursts prevented her from being able to
interact appropriately in a working environment. T. 1808. LCSW
Polino opined that Plaintiff’s mental symptoms seriously limited
but did not preclude her from understanding and remembering very
short and simple instructions. She further stated that Plaintiff
was

unable

to

meet

competitive

standards

in

regards

to

her

abilities to: remember work-like procedures; carry out very short
and simple instructions; make simple work-related decisions; and
ask simple questions or request assistance. LCSW Polino indicated
that Plaintiff had no useful ability to function in the remaining
abilities and aptitudes needed to do unskilled work. These areas
included the ability to: maintain regular attendance; maintain
attention for two-hour segments; accept instructions and respond
appropriately to criticism from supervisors; deal with normal
work stress; and ask simple questions or request assistance.
T. 1810. LCSW Polino also opined that Plaintiff had no useful
ability to function in the areas of interacting appropriately
with

the

general

public,

maintaining
10

socially

appropriate

behavior, or using public transportation. T. 1811. LCSW Polino
stated that she expected Plaintiff’s symptoms to last at least
twelve months and that Plaintiff’s impairments or treatment would
cause her to be absent from work more than four days per month.
T. 1812. Finally, LCSW

Polino opined that Plaintiff’s chronic

physical health issues, including her obesity and chronic pain,
could be significant barriers to her ability to work. Id.
In his decision, the ALJ gave LCSW Polino’s opinion “little”
weight. T. 22. The ALJ first noted that under SSR 06-03p, nurses
and

social

workers

are

not

considered

“acceptable

medical

sources” and thus, he considered the opinion under the guidelines
of an “other source” opinion. Furthermore, he noted that the
extreme

limitations

assigned

in

the

opinion

were

not

well

explained or supported. As an example, the ALJ referenced the
opinion’s statement that Plaintiff’s mental status examinations
were within normal limits, but then assigned a number of extreme
limitations. Id.
II.

The ALJ’s Evaluation of the Medical Opinions of Record Was
Supported by Substantial Evidence
Plaintiff argues that substantial evidence does not support

the ALJ’s decision to give “little” weight to the opinions of
Dr. Fornalski, Dr. Bauers, and LCSW Polino and PMHNP-BC Kilgour.
In particular, Plaintiff contends the ALJ improperly based his
11

decision

to

assign

“little”

weight

to

the

opinion

of

Dr. Fornalski on a misstatement of the evidence of record, and
that he further erred by impermissibly cherry-picking the record
to support his decision. For the reasons set forth below, the
Court finds Plaintiff’s arguments are without merit.
Pursuant to the regulations applicable to Plaintiff’s claim,
an ALJ is required to give controlling weight to the opinion of a
treating physician so long as it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case

record.”

20

C.F.R.

§

404.1527(c)(2).

However,

it

is

permissible for an ALJ to give less than controlling weight to a
treating physician’s opinion he or she finds does not meet this
standard, provided he or she “comprehensively set[s] forth [his
or her] reasons for the weight assigned to a treating physician’s
opinion.” Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)
(quoting Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004));
see 20 C.F.R. § 404.1527(c)(2) (stating the agency “will always
give good reasons in our notice of determination or decision for
the

weight

we

give

to

[the

claimant’s]

treating

source’s

opinion”).
In

his

decision,

the

ALJ

set

forth

several

legitimate

reasons for not giving controlling weight to the opinions of
12

treating

sources

Dr.

Fornalski,

Dr.

Bauers,

LCSW

Polino

and

PMHNP-BC Kilgour. Specifically, the ALJ noted that the opinion of
Dr. Fornalski was not well explained or supported; the opinions
of Dr. Bauers were not consistent with his treatment notes or
Plaintiff’s activities; and the relatively extreme limitations in
the opinion of LCSW Polino and PMHNP-BC Kilgour were not well
explained or supported. T. 21-22. As explained below, these were
all appropriate considerations for the ALJ to take into account
when determining the weight to afford each opinion.
A.

Dr. Fornalski’s Opinion Was Not Properly Supported with
Medical Evidence

Plaintiff argues the ALJ’s reasoning that Dr. Fornalski’s
opinion was not well explained or supported is a misstatement of
the evidence of record. In particular, Plaintiff points to the
evidence of record showing Dr. Fornalski performed surgery on
Plaintiff’s knee and administered cortisone injections. However,
Dr. Fornalski failed to cite any supporting clinical findings or
otherwise explain the basis of his opinion. It was appropriate
for

the

ALJ

consideration
§§

to

when

404.1527(c)(3),

presents

relevant

particularly

take

the

absence

weighing

the

of

any

opinion.

416.927(c)(3)

(“The

evidence

support

medical

signs

to
and
13

explanation

more

laboratory

a

See
a

20

C.F.R.

medical

medical
findings,

into

source

opinion,
the

more

weight

we

will

give

that

medical

opinion.

The

better

an

explanation a source provides for a medical opinion, the more
weight

we

will

give

that

medical

opinion.”).

Furthermore,

“[c]ourts in this Circuit have consistently held that ‘lack of
supporting detail and/or objective findings provides a . . .
reason for affording [an] opinion less weight.’” Whitehurst v.
Berryhill,

No.

1:16-cv-01005-MAT,

2018

WL

3868721,

at

*3

(W.D.N.Y. Aug. 14, 2018) (quoting Wright v. Colvin, No. 5:12-cv0440, 2013 WL 3777187, at *15 (N.D.N.Y. July 17, 2013).
B.

Dr. Bauers’ Opinions were Inconsistent with Treatment
Notes and Plaintiff’s Reported Activities

The

ALJ

also

properly

explained

his

reasons

for

giving

“little” weight to the opinions of Dr. Bauers. The ALJ noted that
Dr. Bauers’ opinions were inconsistent with treatment notes and
Plaintiff’s activities. A treating physician’s opinion is not
entitled to controlling weight where it is not corroborated by
the contemporaneous treatment notes and further contradicted by
other medical evidence. Kennedy v. Astrue, 343 F. App’x 719, 721
(2d Cir. 2009) (unpublished opn.); see also Shaffer v. Colvin,
No.
Dec.

1:14-CV-00745
21,

2015)

(MAT),
(ALJ

2015

properly

WL

9307349,

rejected

at

*4

treating

(W.D.N.Y.
physician’s

opinion where it was inconsistent with his own treatment notes).

14

Despite including Plaintiff’s diagnosis of knee derangement,
none

of

Dr.

examination

Bauers’
findings

treatment
until

notes

November

indicate
2015,

any

when

abnormal
Plaintiff

complained of knee issues existing for the past few weeks. See
T. 1766-68. At that time, Dr. Bauers noted Plaintiff would need
further

orthopedic

evaluations

but

was

skeptical

that

any

treatment would be successful. Id.
Furthermore, the Court notes that Dr. Bauers’ October 26,
2015 opinion – which predated Plaintiff’s November 2015 knee
complaints – was a check-the-box form with no explanations or
supporting
Standardized

clinical
form

findings

checklists

are

referenced.
“only

See

marginally

T.

1756.

useful

for

purposes of creating a meaningful and reviewable factual record.”
Halloran v. Barnhart, 362 F.3d 28, 31 n. 2 (2d Cir. 2004); see
also, e.g., Llorens–Feliciano v. Astrue, No. 6:11-cv-924, 2012 WL
6681772, at *3 (N.D.N.Y. Dec. 21, 2012) (“‘Form reports in which
a physician’s obligation is only to check a box or fill in a
blank are weak evidence at best.’”) (quoting Mason v. Shalala,
994 F.2d 1058, 1065 (3d Cir. 1993)). This factor further supports
the ALJ’s determination to assign limited weight to Dr. Bauers’
October 26, 2015 opinion.

15

C.

LCSW
Polino and
PMHNP-BC Kilgour’s
Opinion
Inconsistent and Unsupported by the Record

Was

The Court also finds the ALJ properly evaluated the opinion
of LCSW Polino and PMHNP-BC Kilgour. As a threshold matter, the
Court

notes

that

the

opinions

of

social

workers

and

nurse

practitioners are not subject to the presumption of deference
accorded

to

treating

physicians

or

other

acceptable

medical

sources. See SSR 06-03p (S.S.A.), 2006 WL 2329939, at *2 (Aug. 9,
2006); Smith V. Commissioner of Social Security, 337 F. Supp.3d
216,

222

(W.D.N.Y.

2018)

(“Because

they

are

not

acceptable

medical sources pursuant to the Regulations, nurse practitioners
cannot be considered treating sources subject to the treating
physician rule.”). Nonetheless, the ALJ considered the opinion
within the context of the record as a whole, as

required by SSR

06-03p.
The ALJ noted that the limitations included in the opinion
were relatively extreme in comparison to the clinical findings
and supporting explanations. T. 22. In particular, the ALJ noted
that LCSW Polino stated Plaintiff’s mental status examinations
were within normal limits. See T. 1759. However, LCSW Polino
opined Plaintiff had no useful ability to function in numerous
mental

abilities

including

the

and

aptitudes

ability

to

needed

maintain
16

to

do

unskilled

attention

for

work,

two-hour

segments,

maintain

regular

attendance,

sustain

an

ordinary

routine without special supervision, or deal with normal work
stress. T. 1761. LCSW Polino noted at one point in the opinion
that Plaintiff was “unable to interact with others in a stressful
environment of triggering situations without exhibiting extreme
behavior.” T. 1762. However, LCSW Polino failed to provide any
examples

of

“triggering

situations”

or

what

she

considered

“extreme” behavior.
Further contradicting LCSW Polino’s extreme limitations, the
ALJ noted, other treatment notes showed Plaintiff had a good
response

to

her

mental

health

medications

and

reported

her

anxiety and bipolar disorder were stable. T. 18. The Court notes
that Dr.

Bauers,

who also

treated

Plaintiff for

her

bipolar

disorder, repeatedly indicated in his treatment notes that with
respect to her bipolar disorder, Plaintiff was “feeling well” and
that

her

condition

was

“mostly

well

controlled.”

See,

e.g.,

T. 1727, 1734, 1746. The Court finds such inconsistencies and
lack of support were appropriate factors for the ALJ to consider
when weighing

the

LCSW

Polino’s

opinion.

See

Conlin

ex

rel.

N.T.C.B. v. Colvin, 111 F. Supp.3d 376, 386 (W.D.N.Y. 2015) (ALJ
did not err in considering inconsistencies in the opinion of a
social worker when that opinion was also inconsistent with other
medical sources in the record).
17

In sum, the Court finds the ALJ appropriately explained in
detail why he did not fully credit the relevant medical opinions
above. Accordingly, the Court finds remand is not warranted on
this basis.
D.

The ALJ Permissibly Included One of Plaintiff’s GAF
Scores in the Decision

Plaintiff

also

impermissibly

makes

the

cherry-picked

cursory
the

argument

record

that

when

the

ALJ

referencing

Plaintiff’s global assessment of functioning (“GAF”) score of 64
to support his findings. For the reasons set forth below, the
Court finds this argument is without merit.
In his decision, the ALJ noted that Plaintiff’s treatment
notes

continued

to

show

she

was

having

a

good

response

to

medication. For example, Plaintiff was assigned a GAF score of 64
on May 3, 2013. T. 18 referring to T. 1012. Plaintiff argues that
making

such

a

selective

reference,

without

also

including

Plaintiff’s other GAF scores from the record, which range in the
50s, was impermissible. The Court disagrees.
The ALJ did not place great reliance on Plaintiff’s GAF
score of 64, but rather used it as evidence that at the time the
score was given, Plaintiff was responding well to her medication.
Such use of a single GAF score to merely support an otherwise
well-supported observation was entirely appropriate. Plaintiff’s
18

suggestion that including additional GAF scores from the record,
the majority of which ranged from 55 to 58 (see, e.g. 422, 905,
1554,

1777),

would

leave

the

RFC

finding

unsupported

is

meritless.
“[S]tanding alone, a GAF score, which can reflect social
and/or occupational functioning, does not necessarily evidence
whether

an

impairment

seriously

interferes

with

a

claimant’s

ability to work.” Garcia v. Colvin, No. 13-CV-6433P, 2015 WL
1280620, at *8 (W.D.N.Y. Mar. 20, 2015) (internal quotation marks
and

citations

omitted).

Instead,

an

ALJ

is

required

to

incorporate GAF scores in their evaluation of the record as a
whole. See, e.g., Walterich v. Astrue, 578 F. Supp.2d 482, 515
(W.D.N.Y. 2008) (ALJ improperly relied on GAF score alone to
discount treating physician opinion; “[t]he ALJ, however, is not
permitted to rely on any test score alone[;] ... [n]o single
piece of information taken in isolation can establish whether [a
claimant is disabled]”) (internal quotations omitted).
The ALJ did not place great reliance on Plaintiff’s GAF
score of 64, but rather used it as evidence that at the time the
score was given, Plaintiff was responding well to her medication.
Such use of a single GAF score to merely support an otherwise
well-supported observation was entirely appropriate. See, e.g.,
Walterich, 578 F. Supp.2d at 515. Plaintiff’s suggestion that
19

including additional GAF scores from the record, the majority of
which ranged from 55 to 58 (see, e.g. T. 422, 905, 1554, 1777),
would leave the RFC finding unsupported is meritless.
Rather

than

use

Plaintiff’s

discredit

any

opinion

disabled,

the

ALJ

or

GAF

establish

appropriately

used

scores
that
one

as

a

basis

to

was

not

Plaintiff’s

GAF

Plaintiff
of

scores as supportive evidence that at that time, Plaintiff was
showing

improvement

with

her

medications.

“Treatment

notes

continue to show [Plaintiff] had good response to medication . .
. [Plaintiff] was also assigned a GAF score 64, which indicates
she only presented with some mild symptoms.” T. 18. The Court
finds no error in such use of a GAF score.
Moreover, the Court finds that Plaintiff’s GAF scores as a
whole are not in conflict with the ALJ’s RFC finding. According
to the Diagnostic and Statistical Manual of Mental Disorders,
Fourth Edition

(“DSM-IV”),

GAF

scores

between 51

and

60

are

indicative of no more than “moderate symptoms.” The ALJ’s RFC
finding includes several non-exertional limitations accommodating
such moderate limitations, including limiting Plaintiff to: only
occasionally performing complex tasks; no supervisory duties; no
independent decision-making; minimal changes in work routine and
processes;

and

only

occasional

interaction

with

supervisors,

coworkers, and the general public. T. 17. See Jiminez v. Colvin,
20

No. 2018 WL 459301, at *3 (W.D.N.Y. Jan. 18, 2018) (moderate
limitations in social interactions were appropriately accounted
for with a limitation of “occasional interaction with co-workers,
supervisors,

and

the

general

public”)

(internal

citations

omitted). Accordingly, the Court finds no error in the ALJ’s
decision to include only one of Plaintiff’s GAF scores in his
analysis and thus, remand is not warranted on this basis.
III. The ALJ Properly Considered Plaintiff’s Obesity
Finally,

Plaintiff

argues

the ALJ

failed

to

properly

consider her obesity when assessing her RFC, specifically taking
exception to the ALJ’s omission of Plaintiff’s weight or body
mass index (“BMI”) in the decision. For the reasons set forth
below, the Court finds Plaintiff’s argument is without merit.
SSR 02-1p provides an ALJ must explain how a claimant’s
obesity affects the RFC assessment. Courts in this district have
required varying degrees of explanation in this area. See, e.g.,
Kelsey v. Commissioner of Social Security, 335 F. Supp.3d 437,
445 (W.D.N.Y. 2018) (ALJ complied with SSR 02-1p by expressly
considering

plaintiff’s

obesity

throughout

the

analysis

and

incorporating limitations associated with difficulties plaintiff
attributed to her weight into the RFC finding); Bus v. Astrue,
No. 08-CV-00481-A(M), 2010 WL 1753287, at *6 (W.D.N.Y. Apr. 29,
2010)

(ALJ’s

decision

was

upheld
21

where

ALJ

stated,

without

elaboration, that obesity was considered in establishing the RFC
finding); Ayers v. Astrue, No. 08–CV–69A, 2009 WL 4824605, at *11
(W.D.N.Y.

Aug.

limitations

31,

into

2009)

the

RFC

(ALJ’s

incorporation

assessment

suggested

of
by

physical
claimant’s

doctors was sufficient, despite ALJ’s failure to specifically
address obesity).
The ALJ found Plaintiff’s obesity to be a severe impairment
at step two. T. 14. The ALJ then explained the requirements of
SSR 02-1p and stated he “fully considered obesity in the context
of the overall record evidence in making this decision.” T. 1516. The ALJ then referenced Plaintiff’s obesity several times
throughout

the

decision,

noting

that

it

was

included

in

her

history of physical health issues (T. 19), and that her treating
sources noted it as a contributing factor to her knee impairment,
though she had made no attempts at weight reduction (T. 20).
Furthermore, the ALJ gave significant weight to the opinion of
Dr. Hongbiao Liu (T. 21), who specifically noted Plaintiff’s
weight and diagnosed her with morbid obesity (T. 1166-68). Taking
the

examination

obesity,

Dr.

findings

Liu

opined

into

account,

Plaintiff

including

had

mild

Plaintiff’s
to

moderate

limitations in prolonged walking, bending, and kneeling. T. 1169.
The ALJ clearly made accommodations for those limitations in the

22

RFC

finding,

limiting

Plaintiff

to

sedentary

work,

only

occasionally bending, and never kneeling. T. 17.
The Court finds the ALJ’s multiple references to Plaintiff’s
obesity

throughout

the

decision,

and

his

consideration

of

Plaintiff’s treatment records which amply document her obesity
and its impact on her other medical impairments, were sufficient
to demonstrate that he did indeed consider Plaintiff’s obesity
when assessing her RFC. See Tracy v. Astrue, No. 09-CV-953S, 2011
WL 3273146, at *7 (W.D.N.Y. July 29, 2011) (ALJ sufficiently
considered

plaintiff’s

obesity

where

medical

evidence

that

incorporated plaintiff’s obesity was considered and ALJ expressly
stated

she

considered

plaintiff’s

obesity

when

assessing

her

RFC). Accordingly, remand on this basis is not warranted.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment
on the pleadings (Docket No. 9) is denied. The Commissioner’s
opposing motion for judgment on the pleadings (Docket No. 10) is
granted. The Clerk of Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

February 20, 2019
Rochester, New York
23