Munoz v. Commissioner of Social Security
MEMORANDUM DECISION AND ORDER denying 13 Motion for Judgment on the Pleadings; granting 14 Motion for Judgment on the Pleadings. Signed by Hon. Donald Bush on 11/21/2022. (CGJ)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
COMMISSIONER OF SOCIAL SECURITY,
Case # 1:20-cv-1626-DB
DECISION AND ORDER
Plaintiff Ezequiel M. (“Plaintiff”) brings this action pursuant to the Social Security Act
(the “Act”), seeking review of the final decision of the Commissioner of Social Security (the
“Commissioner”), that denied his application for supplemental security income (“SSI”) under Title
XVI of the Act. See ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§
405(g), 1383(c), and the parties consented to proceed before the undersigned in accordance with a
standing order (see ECF No. 17).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). See ECF Nos. 13, 14. Plaintiff also filed a reply brief. See ECF No. 15. For the
reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 13) is
DENIED, and the Commissioner’s motion for judgment on the pleadings (ECF No. 14) is
Plaintiff protectively filed an application for SSI on January 17, 2017, alleging disability
beginning June 1, 2012 (the disability onset date), due to ankle injury, schizophrenia, manic
depression, severe anxiety, posttraumatic stress disorder (“PTSD”), diabetes, and aggressive
behaviors. Transcript (“Tr.”) 218-24, 254. Plaintiff’s claim was denied initially on May 1, 2017
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(Tr. 119), after which he requested an administrative hearing (Tr. 127). On June 6, 2019,
Administrative Law Judge Mary Mattimore (“the ALJ”) conducted a hearing in Buffalo, New
York. Tr. 51-102. Plaintiff appeared and testified at the hearing and was represented by Patricia
M. Brooks Bundy, an attorney. Tr. 28. Mary Everts, an impartial vocational expert (“VE”) from
Rehab Team Associates, also appeared and testified at the hearing. Id.
The ALJ issued an unfavorable decision on July 1, 2019, finding that Plaintiff was not
disabled. Tr. 28-45. On September 14, 2020, the Appeals Council denied Plaintiff’s request for
further review. Tr. 8-12. The ALJ’s July 1, 2019 decision thus became the “final decision” of the
Commissioner subject to judicial review under 42 U.S.C. § 405(g).
District Court Review
“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) (citing 42 U.S.C. §
405(g)) (other citation omitted). The Act holds that the Commissioner’s decision is “conclusive”
if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (citations
omitted). It is not the Court’s function to “determine de novo whether [the claimant] is disabled.”
Schaal v. Apfel, 134 F. 3d 496, 501 (2d Cir. 1990).
The Sequential Evaluation Process
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is
disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
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(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful
work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ
proceeds to step two and determines whether the claimant has an impairment, or combination of
impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant
restrictions on the claimant’s ability to perform basic work activities. Id. § 404.1520(c). If the
claimant does not have a severe impairment or combination of impairments meeting the durational
requirements, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing
and meets the durational requirement, the claimant is disabled. Id. § 404.1509. If not, the ALJ
determines the claimant’s residual functional capacity, which is the ability to perform physical or
mental work activities on a sustained basis notwithstanding limitations for the collective
impairments. See id. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. Id. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the
Commissioner must present evidence to demonstrate that the claimant “retains a residual
functional capacity to perform alternative substantial gainful work which exists in the national
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economy” in light of his or her age, education, and work experience. See Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).
ADMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ analyzed Plaintiff’s claim for benefits under the process described above and
made the following findings in her July 1, 2019 decision:
1. The claimant has not engaged in substantial gainful activity since January 17,2017, the
application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: post-traumatic ankle arthritis, status
post surgeries in right ankle, arthritis of the right foot, peripheral vascular disease, obesity,
post-traumatic stress disorder ("PTSD"), depression, anxiety disorder, bipolar disorder,
attention deficit hyperactivity disorder(“ADHD”), antisocial personality disorder, other
specified psychotic disorder and adjustment disorder with mixed anxiety and depressed
mood (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. The claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.967(b) 1 except the claimant can only occasionally stoop, climb stairs, ramps,
kneel, crouch and crawl but cannot climb ladders or ropes; the claimant can perform only
a low stress job defined as simple routine work, with one or two steps, and simple
workplace decisions, not at a production rate pace (assembly line) pace; the claimant can
tolerate only minimal changes in workplace processes and settings; and the claimant can
tolerate occasional interaction with supervisors but only incidental interaction (defined as
20% of the day or less) with coworkers and the public, and cannot perform tandem or team
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on July 15, 1975 and was 41 years old, which is defined as a younger
individual age 18-49, on the date the application was filed (20 CFR 416.963).
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the
ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or she
can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.” 20 C.F.R. § 404.1567(b).
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7. The claimant has a limited education and is able to communicate in English (20 CFR
8. Transferability of job skills is not material to the determination of disability because using
the Medical-Vocational Rules as a framework supports a finding that the claimant is “not
disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20
CFR Part 404, Subpart P, Appendix 2).
9. Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform (20 CFR 416.969 and 416.969a).
10. The claimant has not been under a disability, as defined in the Social Security Act, since
January 17, 2017, the date the application was filed (20 CFR 416.920(g)).
Accordingly, the ALJ determined that, based on the application for supplemental security
benefits protectively filed on January 17, 2017, the claimant is not disabled under section
1614(a)(3)(A) of the Social Security Act. Tr. 45.
Plaintiff asserts two points of error. Plaintiff first argues that the ALJ failed to properly
apply the treating physician rule to the opinion of Jennifer Gurske-dePerio, M.D. (“Dr. GurskedePerio”). See ECF No. 13-1 at 1, 13-17. Plaintiff argues that the ALJ did not provide “good
reasons” for discounting Dr. Gurske-dePerio’s “disability-supporting opinion” through proper
consideration of the regulatory factors at 20 C.F.R. § 416.927(c)(2). See id. Next, Plaintiff argues
that the ALJ erred by failing to find that Plaintiff’s “well-documented agoraphobia” was not its
own severe impairment and failing to account for this impairment in the RFC determination or
analysis. See id. at 17-19.
The Commissioner argues in response that the ALJ properly afforded Dr. Gurske-dePerio’s
opinion partial weight because: the opinion was relayed merely through a checkbox form without
supportive text or explanations; the opinion was vague; and the opinion was contradicted by
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Plaintiff’s own testimony. See ECF No. 14-1 at 8-16. Furthermore, argues the Commissioner, even
if the ALJ’s analysis did not discuss each factor of the treating physician rule, remand is not
warranted, because other evidence in the record, including other opinion evidence and Plaintiff’s
treatment history, supports the ALJ’s RFC finding. Moreover, notes the Commissioner, Plaintiff
appears to have seen Dr. Gurske-dePerio on only two occasions, both of which were before the
relevant period; thus, Plaintiff’s treating relationship with Dr. Gurske-dePerio was neither
longstanding nor extensive. See id.
With respect to Plaintiff’s second point, the Commissioner argues that the record fails to
show any symptoms or limitations solely attributable to agoraphobia that were independent of the
many other overlapping severe mental impairments the ALJ did find, including PTSD, ADHD,
depression, anxiety disorder, bipolar disorder, antisocial personality disorder, other specified
psychotic disorder, and adjustment disorder with mixed anxiety and depressed mood. See id.
A Commissioner’s determination that a claimant is not disabled will be set aside when the
factual findings are not supported by “substantial evidence.” 42 U.S.C. § 405(g); see also Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence has been interpreted to mean “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The
Court may also set aside the Commissioner’s decision when it is based upon legal error. Rosa, 168
F.3d at 77.
Upon review of the record in this case, the Court finds that the ALJ appropriately assigned
partial weight to Dr. Gurske-dePerio’s treating physician opinion and articulated good reasons for
the weight assigned in compliance with the Commissioner’s regulations and case law.
Furthermore, the ALJ properly concluded that Plaintiff’s severe impairments resulted in an RFC
for a range of light work with additional exertional and non-exertional limitations. In so
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concluding, the ALJ properly accepted and incorporated into the RFC all the well-supported
limitations and reasonably discounted other restrictive limitations unsupported by and inconsistent
with the record as a whole. Accordingly, the Court finds no error.
The record indicates that Plaintiff has post-traumatic arthritis in his right ankle following
three ankle surgeries, with mention in the record of a possible fourth surgery consisting of a total
ankle replacement, which had yet to be performed. See, e.g., Tr. 501, 561, 623. The record also
documents a history of emotional and behavioral difficulties resulting from an abusive childhood,
including depression, anxiety, bipolar disorder, and PTSD; however, without significant mental
health treatment other than medication management and sporadic outpatient therapy. See, e.g., Tr.
388-422, 423-34, 472, 483, 575-83, 606-21.
Plaintiff sought treatment at Lake Shore Behavioral Health (“Lake Shore”) from January
to May 2014. Tr. 388-93. He was discharged due to “no commitment to treatment.” Tr. 390. He
had attended only four out of ten scheduled appointments, including missing two psychiatric
Plaintiff again sought treatment at Lake Shore in September 2015. Tr. 483-91. During a
behavioral health assessment on September 21, 2015, Plaintiff complained of increasing
depression and anxiety. Tr. 483. He stated he had been “in counseling for years” due to “a lot of
trauma growing up, from deaths to sexual abuse to being raised in a violent dysfunctional family,”
and he felt that talking in counseling was “helpful.” Id. He also reported auditory hallucinations
themed around his past childhood trauma. Id. Plaintiff was not working at the time and indicated
that he did not remember the last time he worked; he also indicated that his ability to work had
been inhibited by his “many surgeries,” notably not due to his mental health symptoms Tr. 485.
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Treatment recommendation was individual therapy and an initial psychiatric assessment, to be
followed with possible monthly medication management visits. Id.
Plaintiff had an initial psychiatric assessment at Lake Shore on September 20, 2015. His
chief complaint was, “I’m running out of my medications.” Tr. 397. He reported he had been “at
Mid-Erie until last month and [was] now out of medications.” Id. Plaintiff reported he was taking
psychotropic medications, including Strattera, Prozac, Seroquel, and Xanax. Id. Plaintiff’s mental
status examination was mostly benign, other than stating “I’m not right” with respect to his mood
and reporting voices. Tr. 399-400. Plaintiff did not go into detail about the “voice” he hears, but
the record indicates that it was “not command in nature.” Tr. 400. The record also indicates that
details of Plaintiff’s reported systems were “somewhat vague” and “evasive.” Tr. 401. Although
Plaintiff reported that he was currently prescribed Xanax, he actually had not been prescribed
Xanax in six months. Id. When confronted with this, Plaintiff stated Xanax had worked for him
in the past. Id. The record notes that Plaintiff “appear[ed] to have some medication seeking
behavior that will be monitored,” and records from Mid-Erie would be reviewed before prescribing
any controlled substances. Id. Plaintiff’s prognosis was noted to be “limited.” Id. With exception
of anxious affect and erratic sleeping patterns, Plaintiff’s mental status examinations thereafter
were largely benign. See Tr. 399, 411, 413, 415, 417, 419, 421. Following multiple no shows and
lack of follow up, the record reflects that Plaintiff was again discharged from Lake Shore in May
2016. Tr. 407.
A note from Plaintiff’s primary care physician, Robert Erickson, D.O. (“Dr. Erickson”), in
November 2015 documents that Plaintiff reported having multiple daily panic attacks for three
months (Tr. 341), but Dr. Erickson’s psychiatric findings were largely normal, other than anxious
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mood, and his adjustment disorder with mixed mood was described as "stable on Lexapro" (Tr.
On January 14, 2016, Plaintiff presented to Dr. Gurske-dePerio for evaluation of his right
posterior ankle pain and lateral foot pain. Tr. 368. Plaintiff reported that his ankle “gave out” and
felt “unstable with walking.” Id. The record states that “Dr. Ritter [would] no longer see him as he
missed and cancelled too many appointments and their office.” Id. Dr. Gurske-dePerio noted that
Plaintiff had a history of a talus fracture from a 1994 motor vehicle accident, left ankle arthroscopy
with exostectomy, removal of loose body ankle, and exostectomy tibia and talus in 2006, and right
subtalar fusion with right femur RIA in 2011. Id. Plaintiff stated that he was “at the height of his
inability to ambulate normally.” Id.
Upon examination, Plaintiff’s gait was nonantalgic; he used no assistive devices, and his
ankle, while tender with 2+ effusion and showing limitation in ranges of motion, was stable; his
midfoot and forefoot dynamics were normal; his strength was 5/5; and he showed negative
Thompson test, negative squeeze test, and negative Holman’s sign. Tr. 369. Noting Plaintiff’s risk
factors, including diabetes and obesity, no ankle fusion was recommended: instead, Plaintiff was
recommended to utilize nonoperative and conservative care. Tr. 370. Dr. Gurske-dePerio filled out
Plaintiff’s disability forms but instructed him “to have primary care fill out [disability forms] from
now on.” She also stated, “I will not do permanent disability.” Tr. 371. X-rays at that time
documented no fracture, dislocation, malalignment, or degenerative changes, old talar neck
fracture with hardware consisting of two screws in place, subtalar fusion with two intact screws,
posttraumatic arthritis in the ankle described as severe, possible subtalar nonunion and avascular
necrosis talus described as mild. Tr. 372.
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On the same date, January 14, 2016, Dr. Gurske-dePerio completed a “checkbox” medical
examination questionnaire for the New York State Office of Disability Assistance. Tr. 357-58. Dr.
Gurske-dePerio noted that Plaintiff’s diagnoses included bipolar, diabetes, talus fracture,
posttraumatic ankle arthritis, depression, and PTSD, and these diagnoses were expected to last
more than 12 months. Id. She checked boxes indicating that Plaintiff was “very limited” in the
functional areas of walking, standing, lifting, carrying, and stairs and other climbing and
“moderately limited” in his ability to push, pull, and bend. Tr. 358. Dr. Gurske-dePerio indicated
that Plaintiff’s limitations in walking and standing were due to his arthritis, posttraumatic arthritis,
and diabetes and opined that Plaintiff’s limitations would last more than 12 months. Id.
On February 4, 2016, consultative psychologist Susan Santarpia, Ph.D. (“Dr. Santarpia”)
performed a consultative psychological assessment for the Erie County Department of Social
Services. Tr. 359-64. Plaintiff reported a history of PTSD, bipolar disorder, ADHD, psychosis,
schizophrenia, and severe anxiety attacks. Tr. 359. He reported he was currently receiving
outpatient treatment at Lake Shore Behavioral Health. Id. Plaintiff reported that he believed that
medication decreased the intensity and frequency of his auditory hallucinations, although it did
not completely get rid of them. Id. Upon examination, Plaintiff displayed abnormal attention and
concentration, due to “suspected lack of effort/possible malingering.” Tr. 361. His cognitive
functioning was also abnormal; Dr. Santarpia noted that Plaintiff had a ninth-grade education. Id.
Dr. Santarpia opined that Plaintiff was moderately limited (unable to function 50% of the time) in
the areas of performing complex tasks independently, maintaining attention and concentration for
rote tasks, and regularly attending to a routine and maintaining a schedule. Tr. 362-63.
Plaintiff returned to Dr. Gurske-dePerio on February 23, 2016. Tr. 380-84. A CT scan of
Plaintiff’s right ankle taken on January 28, 2016 demonstrated moderate tibiotalar joint
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degenerative osteoarthritis with loose bodies anterior recess and one loose body posterior recess
of the tibiotalar joint, and anterior tibiotalar impingement. Tr. 379. Dr. Gurske-dePerio offered a
CAM Boot for comfort of the right leg, which Plaintiff declined. Tr. 383. Dr. Gurske-dePerio
referred Plaintiff to pain management and advised him that she would not perform any surgery
until he had stopped smoking for one month. Id. She also noted that Plaintiff had left plantar
fasciitis, “a repetitive overuse type injury,” for which surgery was not recommended, as it “takes,
on average, 18 months to resolve on its own.” Id. Dr. Gurske-dePerio prescribed gastroc stretching,
plantar fascia stretching, night splints and gel heel cups. Tr. 384.
On December 13, 2016, Plaintiff established care with Alexandria Schultz, PA (“Ms.
Schultz”), at WNY Medical, PC. Tr. 449. Plaintiff reported that his biggest concern was his
increased panic attacks over the past few months. Id. Plaintiff reported that his symptoms were “at
the worst when he was in a vehicle or in a large group[;] however, his wife, who accompanied him
state[d] that his symptoms were now happening at home.” Id. Plaintiff reported that he is being
followed by psychiatrist “Dr. Mark” and therapist “Rebecca” at Buffalo Psychiatry, but Dr. Mark
would “only prescribe certain medications.” Id. Plaintiff declined any non-controlled substances
that Ms. Schultz could offer for his anxiety and agitation. Tr. 453.Ms. Schultz referred Plaintiff to
psychiatry and recommended that he continue counseling. Id.
On February 6, 2017, Plaintiff presented to podiatrist Maurice Gelia, D.P.M. (“Dr. Gelia”),
complaining of severe right ankle pain. Tr. 496. Dr. Gelia noted a history of an apparent talus
fracture at the neck of the talus in 1994 with ORIF of the fracture, and an apparent subtalar joint
fusion in 2011. Id. Examination findings of Plaintiff’s right foot documented pain on palpation
and limitation in his range of motion, but he showed normal muscle strength; he had an
unremarkable vascular examination; denied claudication; and had normal neurological and
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dermatological findings. Id. Based on x-ray findings, Dr. Gelia assessed that Plaintiff had
“indwelling screws from previous surgical procedures,” including a subtalar joint fusion of the
right foot; significant to severe degenerative joint disease with arthritis of the right ankle joint and
talonavicular joint; and arthritis of the foot. Tr. 496. He suggested that Plaintiff seek “probable
ankle joint fusion with possible pantalar fusion” and recommended that Plaintiff follow up with
Dr. Rohrbacher to determine what treatment might be best for him. Id.
On the same date, February 6, 2017, Dr. Gelia completed a “checkbox” medical
examination questionnaire for the New York State Office of Disability Assistance. Tr. 355-56. Dr.
Gelia checked boxes indicating that Plaintiff was “very limited” in the functional areas of walking,
standing, lifting, carrying, pushing, pulling, bending, and stairs and other climbing. Tr. 356. He
indicated that any working condition that involved standing, or walking would be contraindicated.
Id. He noted that these limitations could be expected to last approximately four to six months. Id.
On March 27, 2017, Plaintiff returned to Ms. Schultz for follow-up of his right ankle pain,
anxiety, depression, and stress. Tr. 498. Plaintiff reported that he had consulted with orthopedist
Dr. Rorhbacher for his ankle and that a total ankle replacement surgery was recommended. Tr.
498, 501. Although Dr. Gelia recommended that Plaintiff follow up with Dr. Rohrbacher for his
right ankle issues (Tr. 497), and Plaintiff reported to Ms. Schultz that he had, in fact, consulted
with Dr. Rohrbacher who recommended ankle replacement surgery (Tr. 498), there is no evidence
that Plaintiff actually sought the recommended surgical procedure. Tr. 38. Ms. Schultz indicated
that Plaintiff was to continue to follow up with “Dr. Hawk at Buffalo Psychiatry” for his mental
health issues. Tr. 501.
Ms. Schultz also completed a medical report for the Department of Social Services on
March 27, 2017. Tr. 503-04. Ms. Schultz indicated diagnoses of PTSD, anxiety, depression, and
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degenerative ankle that needed fusion. Id. She opined that Plaintiff was limited to sedentary work,
but he was only able to sit a few hours per day, and he could perform no standing, walking, lifting,
or climbing stairs without pain. Id. She noted that Plaintiff had pain, discomfort, and numbness in
his right foot and ankle, and in his leg up to his back. Id. She also noted that Plaintiff had severe
mood swings, symptoms of non-focus, seclusion, shaking, rapid heart rate, and dizziness, and his
mental health symptoms included no focus, chronic mental illness, no attention, no interaction
with others, cannot remember things, and that he did not follow through. Tr. 503-04. She opined
that Plaintiff had a marked restriction of daily activities and was seriously impaired in his ability
to relate to others. Tr. 504. Ms. Schultz further opined that Plaintiff was unable to perform his
usual work and unable to do any other type of work. Id.
On March 27, 2017, psychiatrist A. A. Haque, M.D. (“Dr. Haque”) completed a
“checkbox” medical examination questionnaire for the New York State Office of Disability
Assistance. Tr. 465-66. Dr. Haque indicated that he had treated Plaintiff since December 2016 at
the “M/B Clinic” for anxiety and PTSD. Tr. 465. Dr. Haque noted that Plaintiff was currently
prescribed Prozac and Thorazine, and he expected Plaintiff’s conditions to be permanent. Id. Dr.
Haque checked boxes indicating that Plaintiff had “moderate limitations” in all areas of mental
functioning, including understanding and remembering instructions, carrying out instructions,
maintaining attention/concentration, making simple decisions, interacting appropriately with
others, maintaining socially appropriate behavior without exhibiting behavioral extremes,
maintaining basic standards of personal hygiene and grooming, and functioning in a work setting
at a consistent pace. Tr. 466. Dr. Haque further opined that Plaintiff required a less stressful work
situation due to his chronic mental illness. Id.
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On April 5, 2017, Plaintiff underwent a consultative psychiatric evaluation performed by
Dr. Santarpia in connection with his disability claim. Tr. 472-76. Plaintiff reported diagnoses of
anxiety and PTSD due to sexual abuse at age seven and reported that he was currently receiving
psychotropic medication management from Dr. Haque and counseling from Rebecca at Buffalo
Psychiatric Center. Tr. 472. Dr. Santarpia noted that Plaintiff’s overall presentation and manner of
relating was adequate, but he exhibited an irritated affect. Tr. 473-74. She also noted that during
the attention and concentration portion of the evaluation, Plaintiff appeared to be “somewhat
malingering” in his responses to math questions. Tr. 474. She estimated that his cognitive
functioning was in the low-average range of ability, and his insight and judgment were fair. Id. Dr.
Santarpia opined that Plaintiff had mild impairment in interacting adequately with supervisors,
coworkers, and the public, and regulating emotion, controlling behavior, and maintaining
wellbeing. Tr. 475. She further opined that the results of the examination were consistent with
psychiatric problems that until better stabilized may at times interfere with his ability to function
on a daily basis. Id.
Likewise on April 5, 2017, Hongbiao Liu, M.D. (“Dr. Liu”), performed a consultative
examination in connection with Plaintiff’s disability claim. Tr. 467-71. Dr. Liu observed that
Plaintiff appeared to be in no acute distress; his gait was walking with a limp; he could not perform
heel and toe walking because of low back pain; he could squat 40% because of low back pain; and
he had normal stance, used no assistive devices, needed no help changing for exam or getting on
and off exam table and was able to rise from chair without difficulty. Tr. 468. Although limitations
in his ankle ranges of motion were observed, there were no evident subluxations, contractures,
ankylosis, or thickening, his joints were stable and nontender, there was no redness, heat, swelling,
or effusion. Tr. 469. Neurologically, Plaintiff’s DTRs (deep tendon reflexes) were physiologic and
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equal in upper and lower extremities, his right leg sensation was decreased compared to left side,
but he showed 5/5 strength in the upper and lower extremities and his extremities revealed no
cyanosis, clubbing, or edema, his pulses were physiologic and equal, there was no significant
varicosities or trophic changes and no muscle atrophy evident. Id. Based on the examination, Dr.
Liu opined that Plaintiff had mild to moderate limitations for prolonged walking, bending, and
kneeling. Tr. 470.
On November 30, 2017, Plaintiff reported to his providers at Tonawanda Recovery Center
that he had been unable to leave his home without extreme difficulty and he had been unable to
work because he did not get along with others. Tr. 508. Plaintiff reported that he had not seen his
grandchildren in four years and that his agoraphobia had been a barrier to getting ankle surgery
and seeing a cardiologist. Tr. 513. He reported that he did not have friends and he preferred to be
alone. Id. Plaintiff also reported that two years prior he had a panic attack while on a bus and got
off and walked six hours in the snow to get home, despite having an all-day bus pass. Id.
On December 18, 2017, Plaintiff presented for mental health treatment with Sharon Yager,
NP (“Ms. Yager”), at Elmwood Recovery Center, complaining that “I can’t leave my house.” Tr.
521-25. Plaintiff reported that he had been receiving his psychiatric treatment from Buffalo
Psychiatric Center, but he was unable to get into a moving car to get to his appointments there,
and he had been “off meds for months.” Tr. 521. Plaintiff reported past trauma such as being locked
in an attic and being sexually abused as a child. Id. Plaintiff stated that due to this, he was currently
unable to be in open places or closed spaces. Id. Plaintiff reported that he had heard a male voice
inside his head telling him to hurt himself and others since he was a child. Tr. 522. He reported
that he first started having panic attacks in 2002 “after a few family members died in front of him,”
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and he continued to have panic attacks multiple times per week with unknown triggers. Id. Plaintiff
also reported past suicide attempts and stated he had been arrested 23 times, mostly for assault. Id.
On March 7, 2018, Plaintiff returned to Ms. Yager for medication management. Tr. 533.
Plaintiff reported he had stopped taking Thorazine two weeks ago because it made him “too foggy
and tired,” but he did not report this to his counselor.” Id. Plaintiff’s girlfriend reported that
Plaintiff had a lot of issues destroying things when he was angry and especially when he was
panicked. Id. Plaintiff requested “an injection for his mood,” and Ms. Yager suggested starting
injectable Invega Sustenna, to which Plaintiff agreed. Id.
On March 12, 2019, Plaintiff presented to Buffalo Psychiatric Center to resume
medications. Tr. 585. Plaintiff was evasive and irritable in providing his criminal background
information. Id. Plaintiff reported that he went “0-100 in one second” and “[got] violent and
aggressive.” Id. He also reported extreme anxiety, panic attacks, and auditory hallucinations. Id.
Upon mental status examination, Plaintiff was mostly pleasant but became irritable at times. Tr.
600. He exhibited an anxious and depressed mood; his affect was irritable; he was guarded at
times, and exhibited poor concentration and attention span at times, evidenced by having difficulty
following the conversation. Id. Plaintiff’s recent memory was fair to poor, and his judgment and
insight were both poor. Id. Plaintiff was prescribed Xanax as needed for panic attacks and prior to
going out and also started on Chlorpromazine, Prozac, Gabapentin, and Prazosin. Tr. 602-03.
A claimant’s RFC is the most he can still do despite his limitations and is assessed based
on an evaluation of all relevant evidence in the record. See 20 C.F.R. §§ 404.1520(e),
404.945(a)(1), (a)(3); SSR 96-8p, 61 Fed. Reg. 34,474-01 (July 2, 1996). At the hearing level, the
ALJ has the responsibility of assessing the claimant’s RFC. See 20 C.F.R. § 404.1546(c); SSR 965p, 61 Fed. Reg. 34,471-01 (July 2, 1996); see also 20 C.F.R. § 404.1527(d)(2) (stating the
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 17 of 30
assessment of a claimant’s RFC is reserved for the Commissioner). Determining a claimant’s RFC
is an issue reserved to the Commissioner, not a medical professional. See 20 C.F.R. §
416.927(d)(2) (indicating that “the final responsibility for deciding these issues [including RFC]
is reserved to the Commissioner”); Breinin v. Colvin, No. 5:14-CV-01166(LEK TWD), 2015 WL
7749318, at *3 (N.D.N.Y. Oct. 15, 2015), report and recommendation adopted, 2015 WL 7738047
(N.D.N.Y. Dec. 1, 2015) (“It is the ALJ’s job to determine a claimant’s RFC, and not to simply
agree with a physician’s opinion.”).
Additionally, 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). In so doing, the ALJ may “choose between
properly submitted medical opinions.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998).
Moreover, an ALJ is free to reject portions of medical-opinion evidence not supported by objective
evidence of record, while accepting those portions supported by the record. See Veino, 312 F.3d
at 588. Indeed, an ALJ may formulate an RFC absent any medical opinions. “Where,  the record
contains sufficient evidence from which an ALJ can assess the [plaintiff’s] residual functional
capacity, a medical source statement or formal medical opinion is not necessarily required.”
Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017) (internal citations and quotation
Moreover, the ALJ’s conclusion need not “perfectly correspond with any of the opinions
of medical sources cited in [his] decision,” because the ALJ is “entitled to weigh all of the evidence
available to make an RFC finding that [i]s consistent with the record as a whole.” Matta v. Astrue,
508 F. App’x 53, 56 (2d Cir. 2013) (citing Richardson v. Perales, 402 U.S. 389, 399 (1971) (the
RFC need not correspond to any particular medical opinion; rather, the ALJ weighs and
synthesizes all evidence available to render an RFC finding consistent with the record as a whole);
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Castle v. Colvin, No. 1:15-CV-00113 (MAT), 2017 WL 3939362, at *3 (W.D.N.Y. Sept. 8, 2017)
(The fact that the ALJ’s RFC assessment did not perfectly match a medical opinion is not grounds
Furthermore, the burden to provide evidence to establish the RFC lies with Plaintiff—not
the Commissioner. See 20 C.F.R. §§ 404.1512(a), 416.912(a); see also Talavera v. Astrue, 697
F.3d 145, 151 (2d Cir. 2012) (“The applicant bears the burden of proof in the first four steps of the
sequential inquiry . . . .”); Mitchell v. Colvin, No. 14-CV-303S, 2015 WL 3970996, at *4
(W.D.N.Y. June 30, 2015) (“It is, however, Plaintiff’s burden to prove his RFC.”); Poupore v.
Astrue, 566 F.3d 303, 305-06 (2d Cir. 2009) (The burden is on Plaintiff to show that she cannot
perform the RFC as found by the ALJ.).
Plaintiff alleges that the ALJ failed to properly apply the treating physician rule to the
opinion of Dr. Gurske-dePerio and did not provide “good reasons” for discounting Dr. GurskedePerio’s “disability-supporting opinion” through proper consideration of the regulatory factors at
20 C.F.R. § 416.927(c)(2). See ECF No. 13-1 at 1, 13-17. For claims filed prior to March 27,
2017, 2 the opinions of Plaintiff’s treating physicians should be given “controlling weight” if they
are “well-supported by medically acceptable clinical and laboratory diagnostic techniques and
[are] not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§
404.1527(c)(2). A legal conclusion “that the claimant is ‘disabled’ or ‘unable to work’ is also not
controlling,” because such opinions are reserved for the Commissioner. Guzman v. Astrue, No. 09CV-3928 (PKC), 2011 WL 666194, at *10 (S.D.N.Y. Feb. 4, 2011) (citing 20 C.F.R. §§
New regulations regarding the evaluation of medical evidence and rescission of Social Security Rulings 96-2p, 965p, 96-6p, and 06-03p, took effect on March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical
Evidence, 82 Fed. Reg. 5844-01 (Jan. 18, 2017). Because Plaintiff’s application was filed on January 17, 2017, the
previous regulations are applicable to his claim.
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 19 of 30
404.1527(e)(1), 416.927(e)(1)); accord Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“A
treating physician’s statement that the claimant is disabled cannot itself be determinative.”).
An ALJ is required to consider several factors in determining how much weight an opinion
should receive, including the length of the relationship and frequency of examinations, nature of
the relationship, medical evidence that supports the opinion, consistency with the record as a
whole, and if the physician’s specialty is relevant to the impairment. Burgess v. Astrue, 537 F. 3d
117, 129 (2d Cir. 2008). If the ALJ gives the treating physician’s opinion less than controlling
weight, he must provide good reasons for doing so. Clark v. Comm’r of Soc. Sec., 143 F.3d 115,
118 (2d Cir. 1998); see also Schaal v. Apfel, 134 F. 3d 496, 503-504 (2d Cir. 1998). Good reasons
for not assigning treating source opinion controlling weight are shown through express
consideration of these factors, although a “searching review of the record” can also demonstrate
good reasons for the weight given the opinion that does not traverse the treating source rule. See
Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019) (citing Halloran v. Barnhart, 362 F.3d 28,
32 (2d Cir. 2004)). In addition, a treating source opinion cannot be entitled to controlling weight
if it is not consistent with the source’s own treatment notes or with other substantial evidence. See
Halloran, 362 F.2d at 31-32 (citing Veino, 312 F.3d at 588); Cichocki v. Astrue, 729 F. App’x 71,
77 (2d Cir. 2013).
Contrary to Plaintiff’s contentions, the ALJ in this case properly analyzed the opinion
evidence and the other evidence of record when developing Plaintiff’s RFC, and substantial
evidence supports the ALJ’s RFC finding. Tr. 35-44. See 20 C.F.R. §§ 404.1527, 416.927. Even
if the ALJ’s analysis did not expressly consider each factor, remand is not warranted, because,
based on a “searching review” of the record evidence, the Court finds that the “substance of the
treating physician rule was not traversed.” Estrella, 95 F.3d at 96 (quoting Halloran, 362 F.3d at
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 20 of 30
32); see also 56 Fed. Reg. 36932, 36935-36 (August 1, 1991), as amended 77 Fed. Reg. 10651,
10656 (February 23, 2012) (re-designating paragraphs (d) through (f) as (c) through (e)) (other
amendments omitted) (explaining that not every factor will apply in every case and certain factors
(for example, treatment relationship) will sometimes take precedence over other factors; and at
other times, certain combinations of factors will result in a finding that one opinion is entitled to
more weight than another, or that a single opinion is entitled to great weight while another might
not be). Furthermore, the Court notes a number of Second Circuit cases affirming the
Commissioner’s final decisions where it found that the ALJ gave good reason for the less-thancontrolling weight accorded treating source opinions even if their analyses might not have
explicitly considered all of the Burgess factors. See e.g., Curry v. Comm’r of Soc. Sec., 855 F.
App’x 46, 48-49 (2d Cir. 2021); Holler v. Saul, 852 F. App’x 584, 585-86 (2d Cir. 2021); Meyer
v. Comm’r of Soc. Sec., 794 F. App’x 23, 26 (2d Cir. 2019); Guerra v. Saul, 778 F. App’x 75 (2d
Cir. 2019); Grega v. Saul, 816 F. App’x 580, 582 (2d Cir. 2020). Contrary to Plaintiff’s argument
(see ECF No. 15 at 2), the Court may conduct a “searching review” of the record to assure that the
“substance of the treating physician rule was not traversed.” Estrella, 925 F.3d at 96.
First, Plaintiff’s argument ignores the entirety of the ALJ’s decision, including the lengthy
RFC analysis leading up to her discussion of the opinion evidence. Tr. 35-39. Before turning to
Dr. Gurske-diPerio’s opinion, the ALJ discussed Plaintiff’s subjective allegations of limitation,
and his treatment history in great detail. Id. This included mentioning Plaintiff’s reported difficulty
with lifting, standing, waking, sitting, climbing stairs, kneeling, squatting, and reaching, that he
had pain in the right ankle which radiated into his leg and hip, that this pain had gotten worse over
time to as severe as 10/10, and that he had pain all day, every day. Tr. 36. The ALJ further noted
that Plaintiff had testified to multiple ankle surgeries over the years, stemming from a fracture of
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 21 of 30
the ankle in 1994, with the most recent surgery in 2011. Tr. 36. However, the ALJ reasonably
found Plaintiff’s statements about the intensity, persistence, and limiting effects of his impairments
inconsistent with the evidence in the record. Tr. 37.
As the ALJ noted, the medical record showed that Plaintiff saw Dr. Gurske-dePerio in
January 2016, and reported right ankle and foot pain, and alleged an inability to ambulate normally,
but examination revealed a non-antalgic gait, he used no assistive devices, and while his ankle was
tender and limited in range of motion, it was stable. Tr. 37, 368-69. Midfoot and forefoot dynamics
were normal, strength was full at 5/5, and various tests, including Thompson test, squeeze test, and
Holman’s sign, were negative. Tr. 37, 369. Because Plaintiff had risk factors including diabetes
and obesity, further surgery such as ankle replacement was ruled out, and instead, non-operative,
conservative care was recommended. Tr. 37, 370. The ALJ further noted that x-rays of Plaintiff’s
right ankle showed an old fracture with hardware in place, but documented no fracture, dislocation,
malalignment, or degenerative changes. Tr. 37, 372. Arthritis was described as severe, and
avascular necrosis described as mild. Tr. 37, 372. Further treatment notes by Dr. Gurske-dePerio
reflected that Plaintiff continued to elect non-operative intervention and declined other treatments,
such as a CAM boot, and declined to quit smoking. Tr. 37, 383.
When Plaintiff saw podiatrist Dr. Gelia, he complained of severe pain, but examination
documented only pain on palpation, and some limitation in range of motion, but also normal
muscle strength, unremarkable vascular examination, and no claudication. Tr. 37, 496.
Neurological and dermatological findings were normal. Tr. 37-38, 496-97. As the ALJ noted,
although Dr. Gelia recommended that Plaintiff follow up with Dr. Rohrbacher for possible surgery,
there is no evidence that Plaintiff actually followed up. Tr. 38, 497.
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 22 of 30
The ALJ went on to note that the nature and scope of Plaintiff’s treatment for his right
ankle and foot impairment was consistent with a finding of a reduced range of light work. Tr. 38.
As the ALJ noted, the record demonstrated that Plaintiff’s condition was managed with
conservative treatment modalities. Tr. 38, 497, 501, 558, 562-64. For example, the ALJ noted that
when Plaintiff established care at UBMD Family Medicine in March 2018, he was “doing okay
for the most part” and his “active problems” list did not include disabling limitations from his
ankle. Tr. 38, 552-53. Physical examinations after that time were largely benign, with normal gait
and station, no use of assistive devices, and a non-antalgic gait on most occasions. Tr. 38, 343,
346, 369, 381, 412, 414, 418, 420, 422. See Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir.
1983) (“The [Commissioner] is entitled to rely not only on what the record says, but also on what
it does not say”); see also O’Heagney-O’Hara v. Comm’r of Soc. Sec., 646 F. App’x 123, 126 (2d
Cir. 2016) (ALJ appropriately considered claimant’s routine and conservative treatment in
The ALJ next considered the assessment of consultative examiner Dr. Liu, who noted that
Plaintiff was in no acute distress, and although Plaintiff walked with a limp and did not walk on
his heels and toes, he used no assistive devices, needed no help changing for the examination or
for getting on and off the examination table, and was able to rise from a chair without difficulty.
Tr. 38, 468. Further, although there was some limitation in range of motion of the ankle, Plaintiff’s
joints were stable and non-tender, with no redness, heat, swelling, or effusion. Tr. 38, 469. Deep
tendon reflexes were physiologic and equal in the upper and lower extremities, and Plaintiff had
5/5 strength in all four extremities. Tr. 38, 469. Dr. Liu assessed only mild to moderate limitations
for prolonged walking, bending, and kneeling. Tr. 38, 470.
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 23 of 30
Moderate limitations are frequently found to be consistent with an RFC for a full range of
light work. See, e.g., Gurney v. Colvin, No. 14-CV-688S, 2016 WL 805405, at *3 (W.D.N.Y. Mar.
2, 2016) (RFC of light work accounted for moderate limitations in heavy lifting, bending, reaching,
pushing, pulling, or carrying) (collecting cases); Harris v. Comm’r of Soc. Sec., No. 09-CV-1112,
2011 WL 3652286, at *5 (N.D.N.Y. July 27, 2011), report and recommendation adopted, 2011
WL 3652201 (Aug. 17, 2011) (finding “slight to moderate limitations in activities that require
lifting, carrying, and reaching . . . consistent with the ALJ's conclusion that Plaintiff could perform
light work”); Vargas v. Astrue, No. 10-CV- 6306, 2011 WL 2946371, at *12 (S.D.N.Y. July 20,
2011) (finding “moderate limitations for lifting, carrying, handling objects, and climbing stairs”
consistent with RFC for full range of light work); Hazlewood v. Comm’r of Soc. Sec., No. 12-CV798, 2013 WL 4039419, at *7 (N.D.N.Y. Aug. 6, 2013) (doctor’s opinion that plaintiff had “mild
to moderate limitations in walking, pushing, and pulling” supported the “ALJ's determination that
plaintiff could physically perform light work”).
The ALJ assigned Dr. Liu’s opinion significant weight, as it was consistent with the overall
medical evidence, including the many benign physical examinations outlined by the ALJ. Tr. 39.
Contrary to Plaintiff’s argument (see ECF No. 13-1 at 14-15), consultative examining physician
opinions can provide substantial evidence to support an ALJ’s conclusions. Monguer v. Heckler,
722 F.2d 1033, 1039 (2d Cir. 1983) (noting that a consultative examiner’s opinion may constitute
substantial evidence in support of an ALJ decision where the opinion is supported by the record
evidence). Thus, while a consultative examiner’s opinion might not be automatically due any
“special” weight, such an opinion can still provide substantial evidence to support the ALJ’s
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 24 of 30
The ALJ also relied on the opinion of state agency reviewing physician D. Miller, D.O.
(“Dr. Miller”), who also assessed that Plaintiff could perform light work. Tr. 39, 111-12. As the
ALJ noted, Dr. Miller’s opinion was afforded significant weight because it was consistent with the
recor, consistent with Dr. Liu’s opinion, and based on Dr. Miller’s specialized knowledge of the
agency’s programs. Tr. 39. State agency reviewing physician opinions can constitute substantial
evidence to support an ALJ’s conclusions. See Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993)
(the Commissioner’s regulations permit the opinions of non-examining sources to constitute
substantial evidence in support of the ALJ’s decision, and can even override a treating source
opinion); see also Heagney O’Hara, 646 F. App’x at 126 (the ALJ correctly gave great weight to
the opinion of a medical expert; even though he lacked a treating relationship because his opinion
was consistent with the objective medical evidence in the record.); Micheli v. Astrue, 501 F. App’x
26, 29 (2d Cir. 2012) (finding that opinion of state agency physician provided substantial evidence
to support ALJ’s RFC finding).
After summarizing all of the above-noted evidence, the ALJ turned to the opinion from Dr.
Gurske-dePerio. 3 Tr. 39, 357-58. The ALJ noted that the opinion was an employability assessment
prepared specifically for the Erie County Department of Social Services, which has its own criteria
for benefits. Tr. 39; see 20 C.F.R. § 416.904 (noting that because other programs have their own
definitions, and make decisions based on their own rules, any decision by another program that a
claimant is “disabled” for example, is not binding on SSA). Although the ALJ recognized that Dr.
Gurske-dePerio was a medical doctor, the ALJ also noted that the opinion was vague. Tr. 358. For
instance, the form asked Dr. Gurske-dePerio to check whether Plaintiff was “very limited,”
Although Plaintiff correctly notes that the ALJ incorrectly referred to Dr. Gurske-dePerio as “Dr. Delerio” (see ECF
No. 13-1 at 15), the ALJ’s narrative and his citations to the record are sufficiently clear to indicate that he was
discussing Dr. Gurske-dePerio’s assessment. Tr. 39
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 25 of 30
“moderately limited,” or had “no evidence of limitations” in various areas of functioning, but there
was no definition of what those categories meant, or how long in a day Plaintiff could perform
such activities. Tr. 358. Similarly, Dr. Gurske-dePerio assessed that Plaintiff was “limited [in]
walking[,] standing due to arthritis[,] post-traumatic arthritis, diabetes.” Tr. 358. Notably, Dr.
Gurske-dePerio did not quantify how limited Plaintiff was in any particular activity, or how much
standing or walking Plaintiff could do. Tr. 358. Thus, the ALJ correctly found the opinion vague.
The ALJ further noted that Dr. Gurske-dePerio’s opinion was contradicted by Plaintiff’s own
testimony that he was capable of walking to the corner store and his limited testimony regarding
any walking limitations. Tr. 39, 62.
While the ALJ may not have expressly discussed the length, frequency, and extent of
Plaintiff’s treatment relationship with Dr. Gurske-dePerio, the record demonstrates that the
relationship was not longstanding or extensive. Plaintiff appears to have seen Dr. Gurske-dePerio
on only two occasions, both of which were before the relevant period. Tr. 368-70, 380-84. See
Estrella, 925 F.3d at 96. Thus, Dr. Gurske-dePerio’s treatment relationship with Plaintiff can be
characterized as peripheral, at best, and is distinguishable from the cases cited by Plaintiff, which
included “numerous visits over a stretch of years.” See ECF No. 13-1 at 16 (citing Daniels v.
Commissioner of Social Security, 2020 WL 6253304, at *3 (W.D.N.Y. Oct. 23, 2020)). The
Second Circuit’s affirmance in Curry is more on point. There, the Court concluded that the ALJ
provided good reasons through a “satisfactory functional application of the Burgess factors” in
affording partial weight to the opinion of a treating orthopedist who, the “record as a whole
revealed,” treated the plaintiff only sporadically. Curry, 855 F. App’x at 48-49.
Furthermore, as noted above, Dr. Gurske-dePerio’s opinion was provided on a “checkbox”
form, which this has Court has noted previously, are of limited evidentiary value. See, e.g., Koerber
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 26 of 30
v. Comm’r of Soc. Sec., No. 6:19-CV-1070-DB, 2020 WL 1915294, at *1 (W.D.N.Y. Apr. 20,
2020) (citing Augustine v. Comm’r of Soc. Sec., No. 6:15-CV-06145-EAW, 2016 WL 5462836, at
*1 (W.D.N.Y. Sept. 28, 2016); see also Halloran, 362 F.3d at 31 n.2 (“[t]he standardized form . .
. is only marginally useful for purposes of creating a meaningful and reviewable factual record”);
Slattery v. Colvin, 111 F. Supp. 3d 360, 372-73 (W.D.N.Y. 2015) (“of limited evidentiary value”)
(citing Gray v. Astrue, No. 09-CV-00584 (MAT), 2011 WL 2516496, at *5 (W.D.N.Y. June 23,
2011)); Camille v. Colvin, 652 F. App’x 25 (2d Cir. 2016); see also 20 C.F.R. §§ 404.1527(c)(3),
416.927(c)(3) (“The better an explanation a source provides for a medical opinion, the more weight
we will give that medical opinion.”).
Moreover, the Second Circuit recently ruled that the ALJ provided good reasons for giving
little weight to treating source opinions similarly relayed merely through checkbox-type forms that
offered little or nothing in terms of supporting or corroborating clinical findings and diagnostic
results. See Holler, 852 F. App’x at 585; Heaman v. Berryhill, 765 F. App’x 498 (2d Cir. 2019).
Such was the case here. Dr. Gurske-dePerio’s form included virtually no supportive text or
explanations. Tr. 358. Although the ALJ could have been more explicit in addressing the Burgess
factors, the ALJ’s decision to grant the opinion only “some” weight (Tr. 39) was well supported,
and the Court finds that this opinion would not have been entitled to controlling (or even
significant) weight even had the ALJ expressly mentioned each factor. Accordingly, remand here
would serve no purpose, and the Court finds no error.
Plaintiff next argues that the ALJ erred at step two when she found that agoraphobia was
not its own severe impairment. See ECF No. 13-1 at 17-19. However, the record fails to show any
symptoms or limitations attributable solely to agoraphobia that were independent of the many other
severe mental impairments the ALJ did find, including PTSD, ADHD, depression, anxiety
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 27 of 30
disorder, bipolar disorder, antisocial personality disorder, other specified psychotic disorder, and
adjustment disorder with mixed anxiety and depressed mood. Tr. 30-32. Although Plaintiff points
to a number of alleged symptoms that might be consistent with agoraphobia, he fails to mention
the many overlapping severe mental impairments above, or how any of the symptoms he cites are
attributable to agoraphobia alone. Furthermore, medical sources often define agoraphobia as a type
of anxiety disorder causing patients to fear and avoid places or situations that might cause them to
panic, feel trapped, helpless, or embarrassed. 4 Thus, having found anxiety disorder and anti-social
personality disorder (as well as eight other severe mental impairments) to be severe impairments,
it is unclear what additional limitations Plaintiff claims were overlooked.
In establishing a disability under the Act, the operative question is not what illness or
condition is present; it is the limitations, if any, such a condition has upon the claimant’s functional
abilities. See 20 C.F.R. § 416.921. Accordingly, the Court finds that any omission of Plaintiff’s
agoraphobia diagnosis at step two was harmless. Where an ALJ proceeds past step two and
considers the effects of all the claimant’s impairments through the remainder of the sequential
evaluation process, any error at step two is harmless. See O’Connell v. Colvin, 558 F. App’x 63,
64 (2d Cir. 2014) (holding that step two errors are harmless when the ALJ identifies other severe
impairments and proceeds in the sequential evaluation process); Stanton v. Astrue, 370 Fed. App’x
231, 233 n.1 (2d. Cir. 2010). Such is the case here, because the ALJ continued to consider
Plaintiff’s mental impairments and resultant limitations throughout the sequential evaluation.
Indeed, at step three, the ALJ included a lengthy discussion of the ”Paragraph B” criteria
of listings 12.04 and 12.06, including detailed discussions of Plaintiff’s ability to interact with
others, concentrate, persist, and maintain pace, and adapt or manage oneself. Tr. 33-34. This
See e.g., Mayo Clinic website, https://www.mayoclinic.org/diseases-conditions/agoraphobia/symptoms-causes/syc20355987 (last visited Nov. 18, 2022.
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 28 of 30
included explicit discussion of Plaintiff’s ability to get along with others, social isolation, legal
problems, anger and irritability, family relationships, ability to interact with supervisors,
coworkers, and the public, and ability to regulate his emotions and behavior. Tr. 33. The ALJ
continued, finding numerous non-exertional limitations, including expressly limiting Plaintiff’s
ability to deal with stress, limiting his ability to tolerate minimal changes in processes and settings,
and limiting his interactions with supervisors, coworkers, and the public. Tr. 35.
In so finding, the ALJ considered Plaintiff’s allegations that he “only goes out for doctor
appointments, has no social life, suffers from severe attacks while traveling in vehicles, and being
around others and cannot go out alone[.]” Tr. 35-36. The ALJ further noted “no social activities or
interaction aside from doctor appointments,” as well as reported “difficulties getting along with
family, friends, and neighbors,” as well as “bosses, teachers, police, landlords, and other people in
authority[.]” Tr. 36. The ALJ further noted that Plaintiff’s anxiety triggers included moving
vehicles, and that he cannot travel by himself. Tr. 36. Next, the ALJ expressly noted Plaintiff’s
testimony that he had been unable to retain jobs due to his mental health conditions “which cause
him to be agoraphobic, explosive, and have panic attacks[.]” Tr. 36. Thus, the ALJ explicitly
considered the possible limitations stemming from agoraphobia in the RFC section. Because the
ALJ found numerous mental impairments, some of which inherently overlap with agoraphobia;
expressly discussed Plaintiff’s social abilities at step three; expressly mentioned agoraphobia in
finding the RFC; and, indeed, found social limitations in the RFC, the Court finds Plaintiff’s step
two challenge meritless.
As previously noted, Plaintiff bears the ultimate burden of proving that he was more limited
than the ALJ found. See Smith v. Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018) (“Smith had a
duty to prove a more restrictive RFC, and failed to do so.”); Poupore, 566 F.3d at 306 (it remains
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 29 of 30
at all times the claimant’s burden to demonstrate functional limitations, and never the ALJ’s
burden to disprove them). While Plaintiff may disagree with the ALJ’s conclusion, Plaintiff’s
burden was to show that no reasonable mind could have agreed with the ALJ’s conclusions, which
he has failed to do.
Based on the foregoing, substantial evidence in the record supports the ALJ’s RFC finding.
The substantial evidence standard is “a very deferential standard of review – even more so than
the ‘clearly erroneous’ standard,” and the Commissioner’s findings of fact must be upheld unless
“a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (emphasis in
the original); see also McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“[i]f evidence is
susceptible to more than one rational interpretation, the Commissioner’s conclusion must be
upheld.”); Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013) (holding that “[t]he relevant
inquiry is whether the ALJ applied the correct legal standards and whether the ALJ’s determination
is supported by substantial evidence,” and where the ALJ’s analysis permits meaningful judicial
review, remand is not warranted solely for a more explicit analysis). As the Supreme Court
explained in Biestek v. Berryhill, “whatever the meaning of ‘substantial’ in other contexts, the
threshold for such evidentiary sufficiency is not high” and means only “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.
Ct. 1148, 1154 (2019) (internal citations omitted).
For all the reasons discussed above, the Court finds that the ALJ properly considered the
record as a whole, including the medical opinion evidence, the treatment reports, and Plaintiff’s
testimony, and the ALJ’s findings are supported by substantial evidence. Accordingly, the Court
finds no error.
Case 1:20-cv-01626-DB Document 18 Filed 11/21/22 Page 30 of 30
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 13) is DENIED, and the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 14) is GRANTED. Plaintiff’s
Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court will enter
judgment and close this case.
IT IS SO ORDERED.
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE
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