Puckett v. Commissioner of Social Security

Filing 13

ORDER denying 7 Motion for Judgment on the Pleadings; granting 8 Motion for Judgment on the Pleadings and Dismissing with prejudice Plaintiff's Complaint. Signed by Hon. Donald Bush on 3/25/24. (SG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LINDA P.,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Case # 1:21-cv-625-DB
MEMORANDUM
DECISION AND ORDER

INTRODUCTION
Plaintiff Linda P. (“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 her 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. 12).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). See ECF Nos. 7, 8. Plaintiff also filed a reply brief. See ECF No. 9. For the
reasons set forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 7) is DENIED,
and the Commissioner’s motion for judgment on the pleadings (ECF No. 8) is GRANTED.
BACKGROUND
Plaintiff protectively filed an application for SSI on June 13, 2019, alleging disability
beginning May 24, 2018 (the disability onset date), due to psychotic disorder, depressive disorder,
generalized anxiety disorder, panic disorder, personality disorder, schizoaffective disorder (bipolar
type), cervical and lumbar degenerative disc disease, fibromyalgia, arthritis, and bilateral plantar
fasciitis and tendinitis. Transcript (“Tr.”) 12, 14, 89-90, 219. Plaintiff’s claim was denied initially

on October 10, 2019, and again on reconsideration on December 26, 2019, after which she
requested an administrative hearing. Tr. 12. On February 24, 2021, Administrative Law Judge
John Farrell (“the ALJ”) conducted a telephonic hearing, 1 at which Plaintiff appeared and testified
and was represented by Kathryn Eastman, an attorney. Tr. 12. Edmond Calandra, an impartial
vocational expert, also appeared and testified at the hearing. Id.
The ALJ issued an unfavorable decision on February 24, 2021, finding that Plaintiff was
not disabled. Tr. 9-28. On April 23, 2021, the Appeals Council denied Plaintiff’s request for further
review. Tr. 1-6. The ALJ’s February 24, 2021 decision thus became the “final decision” of the
Commissioner subject to judicial review under 42 U.S.C. § 405(g).
LEGAL STANDARD
I.

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).

Due to the extraordinary circumstance presented by the Coronavirus Disease 2019 (“COVID-19”) pandemic, all
participants attended the hearing by telephone. Tr. 12.
1

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II.

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
(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

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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
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 his February 24, 2021decision:
1. The claimant has not engaged in substantial gainful activity since June 13, 2019, the
application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: psychotic disorder, depressive
disorder, generalized anxiety disorder, panic disorder, personality disorder, schizoaffective
disorder (bipolar type), cervical and lumbar degenerative disc disease, fibromyalgia,
arthritis, and bilateral plantar fasciitis and tendinitis (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 416.967(b) 2 except that she is limited to simple, routine tasks; she can have only
occasional interaction with the public, co-workers and supervisors; she must work in an
environment in which workplace changes are both infrequent and gradually introduced;
and she is unable to perform production-paced work.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on July 17, 1970 and was 48 years old, which is defined as a younger
individual age 18-49, on the date the application was filed. The claimant subsequently
changed age category to closely approaching advanced age (20 CFR 416.963).
7. The claimant has a limited education (20 CFR 416.964).

“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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8. Transferability of job skills is not an issue because the claimant does not have past relevant
work (20 CFR 416.968).
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 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since
June 13, 2019, the date the application was filed (20 CFR 416.920(g)).
Tr. 12-23.
Accordingly, the ALJ determined that, based on the application for supplemental security
benefits protectively filed on June 13, 2019, the claimant is not disabled under section
1614(a)(3)(A) of the Social Security Act. Tr. 23.
ANALYSIS
Plaintiff asserts two points of error, both of which challenge the ALJ’s analysis of the
opinion evidence, as well as the RFC finding. See ECF No. 7-1 at 10-19. Plaintiff first argues that
the physical RFC was not supported by substantial evidence because (1) the ALJ improperly relied
on the opinions of non-examining physicians; (2) the ALJ created a gap in the record by rejecting
the only examining opinion of record related to Plaintiff’s physical limitations; and (3) the ALJ
failed to adequately consider the impact of Plaintiff’s foot impairments on her physical
capabilities. See id. at 10-15. Plaintiff next argues that the ALJ failed to incorporate all the mental
limitations assessed in the opinions of state agency reviewing psychologists T. Inman-Dundon,
Ph.D. (“Dr. Inman-Dundon), and J. May Ph.D. (“Dr. May”), opinions which the ALJ purported to
find persuasive. Id. at 15-19.
The Commissioner argues in response that the ALJ properly developed the record and wellsupported opinions from non-examining sources, such as here, may provide substantial evidence
supporting the RFC. See ECF No. 8-1 at 5-8. The Commissioner also argues that there was no gap
in the record, and the ALJ satisfied his burden to develop the record by holding the record open
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for Plaintiff to submit evidence supporting her foot complaint, which she failed to do. See id. at
8-11. Finally, the Commissioner argues that the RFC properly reflects the mental work-related
limitations assessed by Dr. Inman-Dundon and Dr. May. See id. at 12-15.
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’s analysis of the opinion
evidence, as well as his RFC finding are supported substantial evidence. Furthermore, the ALJ was
not required to base the RFC directly on any particular medical opinion, as Plaintiff argues. In
addition to the opinion evidence, the ALJ properly considered Plaintiff’s treatment history,
including that her mental health impairments were effectively treated with prescription medication
and counseling, as well as Plaintiff’s own reports and subjective allegations about her symptoms,
which the ALJ noted were not entirely consistent with the medical evidence. Because substantial
evidence supports the ALJ’s decision, the Court finds no error.
On December 12, 2018, Plaintiff consulted with podiatrist Angela Riznyk, D.P.M. (“Dr.
Riznyk”), in the office Peter Riznyk, D.P.M, L.L.C., complaining of bilateral foot pain. Tr. 35456. Dr. Riznyk assessed (among other things) bunions and PT (posterior tibialis) tendinitis and
treated Plaintiff with an injection. Tr. 356. During a follow-up visit on January 16, 2019, Dr.
Riznyk administered a second injection and recommended orthotics. Tr. 359-60. On May 16, 2019,

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Plaintiff reported she was wearing her orthotics and her “feet have been feeling good.” Tr. 357.
Dr. Riznyk noted that Plaintiff’s tendonitis and plantar fasciitis had improved. Id.
On June 15, 2019, Plaintiff presented to Dr. Riznyk to discuss surgical treatment for her
right foot bunion. Tr. 363. Plaintiff reported that she had tried to wear wider shoes, but she
continued to have pain. Id. Dr. Riznyk advised Plaintiff that she would like to perform an Austin
bunionectomy with a possible Akin osteotomy, and after explaining the details of the surgery and
the possible complications, Plaintiff stated she would like to go forward with the surgery as soon
as possible. Id.
On September 24, 2019, Plaintiff presented to David Schaich, Psy.D. (“Dr. Schaich”), for
a consultative psychiatric evaluation. Tr. 525. Plaintiff reported that she was receiving outpatient
mental health treatment for depression and anxiety at Buffalo Psychiatric Center; she was seeing
her therapist twice per month and a psychiatrist once per month. Id. Upon mental status
examination, Dr. Schaich noted that Plaintiff was cooperative, had fair overall presentation, but
“was poorly related.” Tr. 526. He also noted that Plaintiff appeared older than her stated age; she
had slouched posture; and her motor behavior was lethargic. Id. Dr. Schaich further noted that
Plaintiff’s thought processes were “circumstantial with loose associations marked by delusions.”
Id. Plaintiff believed that she could read people’s minds and had ESP. Id. She had flat affect and
anxious mood; mildly impaired attention and concentration due to limited intellectual functioning;
and mildly impaired recent and remote memory skills. Tr. 526-27. Plaintiff’s cognitive functioning
appeared to be below average; her general fund of information was somewhat limited; and she had
poor insight and fair judgment. Tr. 527.
Dr. Schaich opined that Plaintiff had moderate limitations with respect to her ability to
concentrate, persist, or maintain pace and her ability to sustain an ordinary routine and maintain

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attention. Tr. 527-28. He further opined that Plaintiff had “marked” limitations with respect to her
ability to interact with others, her ability to use reason and judgment in the workplace, and her
ability to regulate emotions, control behavior, and maintain well-being. Tr. 528. Finally, Dr.
Schaich concluded, that while the results of Plaintiff’s evaluation appeared to be consistent with
psychiatric problems, her symptoms did not appear to be significant enough to interfere with her
daily functioning. Id.
On September 24, 2019, Plaintiff presented to Hongbiao Liu, M.D. (“Dr. Liu “), for a
consultative internal medicine examination. Tr. 531-34. Plaintiff reported a history of arthritis and
degenerative changes in her back that had been present “for a couple of years.” Tr. 531. She also
reported whole-body joint pain, low back pain that radiated to both legs, and “[a]ssociated
numbness and tingling in her bilateral hands and toes occasionally.” Id. Plaintiff also reported she
“could walk one block.” Id. On physical examination, Dr. Liu observed a normal gait and stance;
Plaintiff could walk on her heels and toes with moderate difficulty because of low-back pain; she
used no assistive devices to ambulate or stand; needed no help changing for the exam or getting
on and off the exam table; and she was able to rise from a chair without difficulty; and had full
(5/5) strength in the lower extremities. Tr. 532. Straight leg raise testing was positive bilaterally in
the seated and supine positions. Tr. 533. Dr. Liu assessed “mild limitation for prolonged walking,
bending, kneeling, squatting, lifting, carrying, overhead reaching, prolonged sitting, standing, and
stair climbing.” Tr. 534.
On October 8, 2019, state agency psychologist Dr. Inman-Dundon reviewed Plaintiff’s
record as of that date and opined that Plaintiff had moderate limitations in the ability to understand
and remember detailed instructions; carry out detailed instructions; maintain attention and
concentration for extended periods; perform activities within a schedule; maintain regular

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attendance; be punctual within customary tolerances; work in coordination with or in proximity to
others without being distracted by them; complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods; interact appropriately with the general public;
accept instructions and respond appropriately to criticism from supervisors; get along with
coworkers or peers without distracting them or exhibiting behavioral extremes; maintain socially
appropriate behavior and adhere to basic standards of neatness and cleanliness; respond
appropriately to changes in a work setting; and set realistic goals or make plans independently of
others. Tr. 99-100.
On October 2, 2019, state agency physician H. Miller, M.D. (“Dr. Miller”), reviewed
Plaintiff’s record at the time and opined that Plaintiff could occasionally lift and/or carry 20 pounds
and frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an
eight-hour workday; and sit for about six hours in an eight-hour workday. Tr. 97.
On November 12, 2019, state agency psychologist Dr. May reviewed Plaintiff’s file at the
reconsideration stage and opined that Plaintiff had moderate limitations in the ability to understand
and remember detailed instructions; carry out detailed instructions; maintain attention and
concentration for extended periods; perform activities within a schedule; maintain regular
attendance; be punctual within customary tolerances; work in coordination with or in proximity to
others without being distracted by them; complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods; interact appropriately with the general public;
accept instructions and respond appropriately to criticism from supervisors; get along with
coworkers or peers without distracting them or exhibiting behavioral extremes; maintain socially

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appropriate behavior and adhere to basic standards of neatness and cleanliness; respond
appropriately to changes in a work setting; and set realistic goals or make plans independently of
others. Tr. 115-17.
On December 18, 2019, state agency physician J. Koenig, M.D. (“Dr. Koenig”), reviewed
Plaintiff’s file on reconsideration and opined that Plaintiff could occasionally lift and/or carry 20
pounds and frequently lift and/or carry 10 pounds. Tr. 113. Dr. Koenig opined that Plaintiff could
stand and/or walk for a total of about six hours in an eight-hour workday and sit for about six hours
in an eight-hour workday. Tr. 113-14.
As noted above, Plaintiff argues that the ALJ’s RFC determination was not supported by
substantial evidence because the ALJ did not properly analyze the opinion evidence. See ECF No.
7-1 at 10-19. A claimant’s RFC is the most she can still do despite her 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); Social Security Ruling (“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 96-5p, 61 Fed. Reg. 34,471-01 (July 2, 1996); see also 20 C.F.R. §
404.1527(d)(2) (stating the 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-CV01166(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.”).

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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
omitted).
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);
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
for remand.).
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

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(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.).
Effective for claims filed on or after March 27, 2017, the Social Security Agency
comprehensively revised its regulations governing medical opinion evidence creating a new
regulatory framework. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82
Fed. Reg. 5844 (Jan. 18, 2017) (technical errors corrected by 82 Fed. Reg. 15, 132-01 (March 27,
2017). Plaintiff filed her application on June 13, 2019, and therefore, the 2017 regulations are
applicable to her claim.
First, the new regulations change how ALJs consider medical opinions and prior
administrative findings. The new regulations no longer use the term “treating source” and no
longer make medical opinions from treating sources eligible for controlling weight. Rather, the
new regulations instruct that, for claims filed on or after March 27, 2017, an ALJ cannot “defer or
give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or
prior administrative medical findings(s), including those from [the claimant’s own] medical
sources.” 20 C.F.R. § 416.920c(a) (2017).
Second, instead of assigning weight to medical opinions, as was required under the prior
regulations, under the new rubric, the ALJ considers the persuasiveness of a medical opinion (or a
prior administrative medical finding). Id. The source of the opinion is not the most important factor
in evaluating its persuasive value. 20 C.F.R. § 416.920c(b)(2). Rather, the most important factors
are supportability and consistency. Id.
Third, not only do the new regulations alter the definition of a medical opinion and the way
medical opinions are considered, but they also alter the way the ALJ discusses them in the text of

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the decision. 20 C.F.R. § 416.920c(b)(2). After considering the relevant factors, the ALJ is not
required to explain how he or she considered each factor. Id. Instead, when articulating his or her
finding about whether an opinion is persuasive, the ALJ need only explain how he or she
considered the “most important factors” of supportability and consistency. Id. Further, where a
medical source provides multiple medical opinions, the ALJ need not address every medical
opinion from the same source; rather, the ALJ need only provide a “single analysis.” Id.
Fourth, the regulations governing claims filed on or after March 27, 2017 deem decisions
by other governmental agencies and nongovernmental entities, disability examiner findings, and
statements on issues reserved to the Commissioner (such as statements that a claimant is or is not
disabled) as evidence that “is inherently neither valuable nor persuasive to the issue of whether [a
claimant is] disabled.” 20 C.F.R. § 416.920b(c)(1)-(3) (2017). The regulations also make clear
that, for claims filed on or after March 27, 2017, “we will not provide any analysis about how we
considered such evidence in our determination or decision” 20 C.F.R. § 416.920b(c).
Finally, Congress granted the Commissioner exceptionally broad rulemaking authority
under the Act to promulgate rules and regulations “necessary or appropriate to carry out” the
relevant statutory provisions and “to regulate and provide for the nature and extent of the proofs
and evidence” required to establish the right to benefits under the Act. 42 U.S.C. § 405(a); see also
42 U.S.C. § 1383(d)(1) (making the provisions of 42 U.S.C. § 405(a) applicable to title XVI); 42
U.S.C. § 902(a)(5) (“The Commissioner may prescribe such rules and regulations as the
Commissioner determines necessary or appropriate to carry out the functions of the
Administration.”); Barnhart v. Walton, 535 U.S. 212. 217-25 (2002) (deferring to the
Commissioner’s “considerable authority” to interpret the Act); Heckler v. Campbell, 461 U.S. 458,
466 (1983). Judicial review of regulations promulgated pursuant to 42 U.S.C. § 405(a) is narrow

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and limited to determining whether they are arbitrary, capricious, or in excess of the
Commissioner’s authority. Brown v. Yuckert, 482 U.S. 137, 145 (1987) (citing Heckler v.
Campbell, 461 U.S. at 466).
Contrary to Plaintiff’s arguments, the ALJ properly considered the opinion evidence and
relied on other evidentiary sources to make an RFC finding that accounted for all of Plaintiff’s
credible limitations, as supported by the record. Tr. 18-22. See 20 C.F.R. §§ 404.1527, 416.927.
Furthermore, the ALJ did not assess Plaintiff’s RFC based on bare medical findings and his own lay
judgement simply because he did not rely on an opinion that mirrored the RFC, as Plaintiff argues.

Plaintiff’s argument wrongly presumes that RFCs are medical determinations, and thus, outside
the ALJ’s expertise. As explained above, however, RFC is an administrative finding, not a medical
one. Ultimately, an ALJ is tasked with weighing the evidence in the record and reaching an RFC
finding based on the record as a whole. See Tricarico v. Colvin, 681 F. App’x 98, 101 (2d Cir.
2017) (citing Matta, 508 F. App’x at 56). The regulations explicitly state that the issue of RFC is
“reserved to the Commissioner” because it is an “administrative finding that [is] dispositive of the
case.” 20 C.F.R. §§ 404.1527(d), 416.927(d). The ALJ “will assess your residual functional
capacity based on all of the relevant medical and other evidence,” not just medical opinions. 20
C.F.R. § 404.1545(a); 20 C.F.R. §§ 404.1513(a)(1), (4), 416.913(a)(1), (4) (explaining that
evidence that can be considered includes objective medical evidence, such as medical signs and
laboratory findings; as well as evidence from nonmedical sources, including the claimant, such as
from forms contained in the administrative record).
Furthermore, there is no requirement that the ALJ accept every limitation in a medical source’s
opinion. See Pellam v. Astrue, 508 F. App’x 87, 89 (2d Cir. 2013) (holding that the ALJ properly
declined to credit certain conclusions in a medical source’s opinion that were inconsistent with other
evidence of record). Moreover, there is no requirement that an ALJ’s RFC finding be based on a

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medical opinion at all. See, e.g., Corbiere v. Berryhill, 760 F. App’x 54, 56-57 (2d Cir. 2019)
(summary order) (affirming ALJ’s physical RFC assessment based on objective medical
evidence); Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8-9 (2d Cir. 2017) (summary order)
(affirming where ALJ rejected sole medical opinion in record speaking to mental functioning).
Thus, contrary to Plaintiff’s argument, the ALJ was not required to craft an RFC that mirrored a
medical opinion and was not bound to adopt the entirety of any opinion. Schillo v. Kijakazi, 31
F.4th 64, 77-78 (2d Cir. Apr. 6, 2022) (affirming where the ALJ declined to adopt the limitations
set forth in three treating source opinions, and the RFC finding did not match any opinion in the
record).
Plaintiff also wrongly argues that: “It is well settled that opinions from non-examining
sources do not constitute substantial evidence on their own.” See ECF No. 7-1 at 11-12. While
Plaintiff misleadingly cites several cases where a court found that an ALJ improperly relied on a
non-examining source opinion, such findings were based on the facts of a particular record. None
of these cases stand for the broad proposition that opinions from non-examining sources
categorically do not constitute substantial evidence. Contrary to Plaintiff’s argument, the
Commissioner’s regulations permit the opinions of non-examining sources, such as state agency
consultants, to constitute substantial evidence in support of the ALJ’s decision. See Diaz v.
Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995) (State agency consultants are recognized experts
whose medical opinions can constitute substantial evidence); 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); 652 F. App’x 25, 28 (2d Cir. 2016); Heagney O'Hara v. Commissioner, 646 F.
App’x 123, 126 (2d Cir. 2016) (the ALJ correctly gave great weight to the opinion of a medical

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expert; even though he lacked a treating relationship because his opinion was consistent with the
objective medical evidence in the record.); Camille v. Colvin, 652 F. App’x 25, 28 4 (2d Cir. 2016)
(rejecting Camille’s contention that state agency psychological consultant’s opinion was “stale”
because it did not have the benefit of later-submitted treatment records and treating physician
evidence); 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). Therefore,
Plaintiff’s argument is incorrect.
Plaintiff next challenges the ALJ’s consideration of the three opinions related to her
physical impairments—opinions from consultative examiner Dr. Liu (Tr. 531-34) and from state
agency reviewing physicians Dr. Miller and Dr. Koeing (Tr. 97, 113-14,). See ECF No. 7-1 at 1112. The ALJ found Dr. Liu’s opinion “not particularly persuasive.” Tr. 21. The ALJ noted that
Dr. Liu “[d]id not explain what precisely is meant by ‘mild’ [limitations]” and failed to provide
any further elaboration about Plaintiff’s exertional limits. Id. However, the ALJ found “persuasive
“the opinions from Dr. Miller and Dr. Koeing because they were “mutually consistent and fully
supported by the medical record, which demonstrates that [Plaintiff’s] physical symptoms have
been controlled with routine treatment.” Tr. 21. Plaintiff asserts that in finding Dr. Liu’s opinion
“not particularly persuasive,” the ALJ “rejected the only examining opinion of record related to
Plaintiff’s physical limitations.” See id. at 10. Plaintiff further asserts that the ALJ’s finding the
opinions of Dr. Miller and Dr. Koeing persuasive was not “enough to support the physical portion
of the RFC finding, especially in light of Plaintiff’s many severe physical impairments.” See ECF
No. 7-1 at 12. The Court disagrees.
First, Dr. Liu’s assessment of “mild limitation for prolonged walking, bending, kneeling,
squatting, lifting, carrying, overhead reaching, prolonged sitting, standing, and stair climbing” (Tr.

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534) supports the ALJ’s RFC finding (Tr. 18), as mild limitations are consistent with the ability to
perform the light work. See, e.g., Lewis v. Colvin, 548 F. App’x 675, 677-78 (2d Cir. 2013) (Second
Circuit agreed that the RFC assessment for a significant range of light work was supported by an
assessment from a consultative examiner’s assessment of “mild limitations for prolonged sitting,
standing, and walking,” and direction that Lewis should avoid “heavy lifting, and carrying.”);
Hamilton v. Comm’r, Soc. Sec., Civ. No. 19-770, 2020 WL 5544557, at *4 (W.D.N.Y. Sept. 16,
2020) (stating that “the ALJ’s RFC determination incorporated the “mild to moderate” limitations
for prolonged walking, bending, and kneeling . . . , which is demonstrated by the ALJ’s limiting
Hamilton to light work with additional restrictions relevant to these activities.”); Dier v. Colvin,
Civ. No. 13-5025, 2014 WL 2931400, at *4 (W.D.N.Y. June 27, 2014) (“while the treating
physician and consultative examiner used terms like ‘mild’ and ‘moderate[,]’ this does not
automatically render their opinions void for vagueness”). Because Dr. Liu’s assessment is
consistent with the RFC for light work, Plaintiff’s argument fails.
Additionally, there was sufficient other medical evidence in the record on which the ALJ
based his RFC finding. For example, Dr. Miller reviewed the record on October 2, 2019, and Dr.
Koenig reviewed the record on December 18, 2019, including the examination results and
assessment of mild limitations from Dr. Liu. Tr. 97-98, 113-14, 118. Dr. Miller and Dr. Koenig
both opined that Plaintiff could perform light work consistent with the RFC. See id. As explained
above, well-supported assessments from non-examining state agency medical sources, such as Drs.
Miller and Koeing, may provide substantial evidence supporting an RFC. Thus, the Court finds no
error in the ALJ finding persuasive the opinions of Drs. Miller and Koeing. Tr. 21.
Next, Plaintiff complains that the ALJ’s decision was somehow incomplete or incorrect
because Drs. Liu, Miller, and Koenig “did not have the opportunity to consider developments in

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Plaintiff’s medical condition that the ALJ was made aware of at the hearing level,” specifically,
testimony about her foot problems. See ECF No. 7-1 at 13. At the December 2, 2020 hearing,
Plaintiff testified that she had foot surgery “last year” and “couldn’t walk that good right now.”
Tr. 37. She further testified that she broke her foot after having one foot surgery done, ‘[t]hen
COVID-19 happened [,] and [she had] been walking on a broken foot for the last year.” Id.; see
also Tr. 53. Contrary to Plaintiff’s argument, Drs. Miller and Koenig considered Plaintiff’s
problems with her feet, specifically noting records from treating podiatrist Dr. Riznyk (Tr. 35464) indicating that Plaintiff’s plantar fasciitis had improved; orthotics had been recommended; and
Plaintiff was scheduled to have a bunionectomy. Tr. 98, 114. Moreover, on September 24, 2019,
Dr. Liu observed that while Plaintiff reported that she “could walk one block,” on physical
examination, she had a normal gait and stance; she could walk on her heels and toes with moderate
difficulty because of low-back pain (not feet problems); used no assistive devices to ambulate or
stand; needed no help changing for the exam or getting on and off the exam table; was able to rise
from a chair without difficulty; and had full (5/5) strength in the lower extremities, all of which
reasonably supported Dr. Liu’s assessment of only mild difficulty in walking (Tr. 532-34).
Furthermore, Dr. Liu’s assessment was consistent with the assessments of Drs. Miller and Koenig
(Tr. 97, 113-14), as well as consistent with the performance of light work as set forth in the RFC
(Tr. 18).
Notably, it is Plaintiff’s burden to establish blindness or disability by informing the Agency
about, or submitting, all evidence known to the claimant that relates to whether the claimant is
blind or disabled. 20 C.F.R. § 416.912(a). “While the ALJ does have a concurrent duty to assist in
developing the record, that does not relieve Plaintiff of her duty to provide evidence in support of
her claim.” Waldvogel v. Comm’r of Soc. Sec., No. 6:16-CV-0868, 2017 WL 3995590, at *8

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(N.D.N.Y. Sept. 11, 2017); see Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 509 (2d Cir. 2009)
(holding that Plaintiff ultimately bears the burden of proving disability, and the ALJ's duty to
develop the record is not absolute). Plaintiff’s failure to provide additional evidence “does not
show that the ALJ was required to seek out that evidence himself.” Waldvogel, 2017 WL 3995590,
at *8; see also LaRon H. v. Comm’r of Soc. Sec., No. 20-CV-07099-MJR, 2023 WL 2042623, at
*1 (W.D.N.Y. Feb. 16, 2023). Furthermore, “a representative has an affirmative duty to provide
competent assistance to the claimant, including acting with reasonable promptness to help obtain
information or evidence the claimant must submit.” Social Security Regulation (“SSR”) 17-4p,
2017 WL 4736894 at *4; see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5. (1987) (“It is not
unreasonable to require the claimant, who is in a better position to provide information about h[er]
own medical condition, to do so.”).
At the hearing, the ALJ asked if the medical record was complete, to which Plaintiff’s
representative replied that Plaintiff was “talking about a surgery that’s going to happen later this
month. So, at this time, everything is in, but I hate to say closed. So, there’s more medical treatment
to come down the pike later on.” Tr. 33-34, 60. The ALJ then held the record open for 30 days for
these records to be submitted. Tr. 60-61. The record reflects that on December 30, 2020, Plaintiff’s
representative sent a request to the ALJ to keep the record open for an additional two weeks. Tr.
302. Plaintiff’s representative sent a similar request on January 4, 2021. Tr. 303. Yet, the record
contains no proffer of additional medical evidence. Nor did Plaintiff’s representative raise this
issue in the pre-Hearing Memo (Tr. 300-01) or argue to the Appeals Council that such records
were necessary and/or forthcoming (Tr. 306-07). Thus, Plaintiff argues for the first time to this
Court that her case should be remanded because she and her lawyers failed to submit evidence
supporting her subjective allegation that she could not walk well due to a recently broken foot.

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As noted above, the ALL held the record open for approximately two months following
the hearing, and the promised records were not submitted. Furthermore, the ALJ satisfied whatever
burden he may have had to develop the record by obtaining a consultative examination from Dr.
Liu, as well as assessments from Drs. Miller and Koeing, all of which considered Plaintiff’s foot
impairment and were consistent with the RFC. See Camille, 652 F. App’x at 28 n.4 (finding that
because the evidence dated after the state agency medical consultant’s opinion did not differ
materially from the evidence that the consultant did consider, it was found that the ALJ committed
no error by relying on the non-examining physician); see also Palistrant v. Comm'r of Soc. Sec.,
No. 16-CV-588-FPG, 2018 WL 4681622, at *6 (W.D.N.Y. Sept. 28, 2018) (“Just because the
claimant continues treatment after an opinion is rendered, however, does not mean that the opinion
is stale. Although Palistrant also argues that he experienced a ‘serious deterioration’ of his back
and neck issues after the opinions were rendered [ ], the record does not support this assertion.”).
Based on the foregoing, the Court finds no error in the ALJ’s evaluation of the opinion evidence
relating to Plaintiff’s physical impairments.
Plaintiff’s second point of error argues that the ALJ found the assessments from Dr. InmanDundon and Dr. May (Tr. 99-100, 115-17) “largely persuasive” and “fully consistent with the
medical record []” (Tr. 20), but then did not include their assessed “moderate” limitations in the
RFC finding. See ECF No. 7-1 at 15-18. As an initial matter, contrary to Plaintiff’s argument, the
ability to perform unskilled work, such as the ALJ found here, is consistent with even moderate
limitations. See McIntyre v. Colvin, 758 F.3d 146, 150-51 (2d Cir. 2014), 758 F.3d (finding that
moderate limitation in maintaining concentration, persistence, or pace or in relating with others
did not preclude unskilled work); Snyder v. Saul, 840 F. App’x 641, 643 (2d Cir. 2021) (finding
ALJ’s RFC corresponded with opinions suggesting Snyder suffered, at most, moderate limitations

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in mental work-related functioning); Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (affirming
a finding of unskilled work where the evidence showed moderate or less severe limitations in
plaintiff’s work-related functioning); Calabrese v. Astrue, 358 F. App'x 274, 277 (2d Cir. 2009)
(moderate limitations in different work-related areas were reasonably found to not preclude
unskilled work); Mayer v. Comm’r of Soc. Sec., No. 18-CV-0062, 2019 WL 2266795, at *5
(W.D.N.Y. May 28, 2019) (“The Second Circuit has repeatedly held that ‘moderate’ limitations
do not preclude a plaintiff’s ability to perform unskilled work.”) (collecting cases).
Moreover, Plaintiff’s argument ignores the remainder of the assessments from Drs. InmanDundon and May, wherein, when asked to explain in narrative form each of these moderate
limitations, they each stated: “See PRT.” Tr. 99-100, 115-16. Then in the PRT (psychiatric review
technique) forms, Drs. Inman-Dundon and May explained in more detail what these moderate
limitations meant:
[Plaintiff] retains the capacity to engage in simple tasks. [Her]ability to deal with
co-workers and the public would be somewhat reduced, but adequate to handle only
brief and superficial contact. [Her] ability to tolerate and respond appropriately to
supervision would be reduced, but adequate to handle ordinary levels of supervision
in the customary work settings.
Tr. 95, 111.
These are precisely the limitations included in the ALJ’s RFC finding, as well as in the
hypothetical question posed to the vocational expert. Tr. 18, 59. Specifically:
[Plaintiff] is limited to simple, routine tasks; she can have only occasional
interaction with the public, co-workers and supervisors; she must work in an
environment in which workplace changes are both infrequent and gradually
introduced; and she is unable to perform production-paced work.
Tr. 18.

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Therefore, Plaintiff’s argument that the “moderate” limitations assessed by Dr. InmanDundon and Dr. May were not included in the RFC finding fails on the face of what they wrote in
the PRT. See ECF No. 7-1 at 15-18. Accordingly, the Court finds no error.
Based on the foregoing, the ALJ properly analyzed the entire record in accordance with the
Commissioner’s regulations and properly assessed Plaintiff’s RFC. See 20 C.F.R. § 416.946(c)
(the responsibility for determining a claimant’s RFC rests solely with the ALJ); see also
Richardson, 402 U.S. at 399 (it is within the sole province of the ALJ to weigh all evidence and
resolve material conflicts); see Galiotti v. Astrue, 266 F. App’x 66, 67 (2d Cir. 2008) (it is the
province of the ALJ to consider and resolve conflicts in the evidence as long as the decision rests
upon “adequate findings supported by evidence having rational probative force”). 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 she has failed to do.
When “there is substantial evidence to support either position, the determination is one to
be made by the fact-finder.” Davila-Marrero v. Apfel, 4 F. App’x 45, 46 (2d Cir. Feb. 15, 2001)
(citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)). 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 v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012)
(emphasis in the original). 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).

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CONCLUSION
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 7) is DENIED, and the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 8) 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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