Sawyer v. Commissioner of Social Security

Filing 13

DECISION AND ORDER denying 6 Motion for Judgment on the Pleadings; granting 10 Motion for Judgment on the Pleadings. Signed by Hon. Elizabeth A. Wolford on 06/03/2024. (MGB)Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DAWN S.,
Plaintiff,

DECISION AND ORDER

v.
1:23-CV-00628 EAW
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
INTRODUCTION
Represented by counsel, Plaintiff Dawn S. (“Plaintiff”) brings this action pursuant
to Title II of the Social Security Act (the “Act”), seeking review of the final decision of the
Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her
application for disability insurance benefits (“DIB”). (Dkt. 1). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’
cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules
of Civil Procedure (Dkt. 6; Dkt. 10), and Plaintiff’s reply (Dkt. 11). For the reasons
discussed below, the Commissioner’s motion (Dkt. 10) is granted, and Plaintiff’s motion
(Dkt. 6) is denied.

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BACKGROUND
Plaintiff protectively filed her application for DIB on August 28, 2020. (Dkt. 5 at
222-28).1 In her application, Plaintiff alleged disability beginning on November 15, 2019.
(Id. at 26, 222). Plaintiff’s application was initially denied on February 4, 2021. (Id. at 26,
104). A telephone hearing was held before administrative law judge (“ALJ”) Bryce Baird
on December 21, 2021. (Id. at 26, 44-88). On August 22, 2022, the ALJ issued an
unfavorable decision. (Id. at 26-38). Plaintiff requested Appeals Council review; her
request was denied on May 3, 2023, making the ALJ’s determination the Commissioner’s
final decision. (Id. at 6-11). This action followed.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the [Social Security Administration (“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) (quotation omitted); see also 42 U.S.C.
§ 405(g). The Act holds that a decision by the Commissioner 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)

1

When referencing the page number(s) of docket citations in this Decision and Order,
the Court will cite to the CM/ECF-generated page numbers that appear in the upper
righthand corner of each document.
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(quotation 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. 1998) (quotation
omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990) (holding that review of the Secretary’s decision is not de novo and that the
Secretary’s findings are conclusive if supported by substantial evidence). However, “[t]he
deferential standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003)
(citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
II.

Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant

is disabled within the meaning of the Act. See Bowen v. City of New York, 476 U.S. 467,
470-71 (1986). At step one, the ALJ determines 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,
in 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, the analysis concludes with a finding of “not disabled.” If
the claimant does have at least one severe impairment, 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
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equals the criteria of a Listing and meets the durational requirement (id. § 404.1509), the
claimant is disabled. If not, the ALJ determines the claimant’s residual functional capacity
(“RFC”), 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).
The ALJ then proceeds to step four and determines whether the claimant’s RFC
permits the claimant to perform the requirements of his or her past relevant work. Id.
§ 404.1520(f). If the claimant can perform such requirements, then he or she is not
disabled. 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 economy” in light of the claimant’s age, education, and
work experience. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted);
see also 20 C.F.R. § 404.1560(c).
DISCUSSION
I.

The ALJ’s Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step

sequential evaluation set forth in 20 C.F.R. § 404.1520. Initially, the ALJ determined that
Plaintiff met the insured status requirements of the Act through December 31, 2025. (Dkt.
5 at 28). At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful work activity since November 15, 2019, the alleged onset date. (Id.).

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At step two, the ALJ found that Plaintiff suffered from the severe impairments of:
cervical disc disease status post fusion, lumbar radiculopathy, degenerative disc disease of
the thoracic spine, anxiety, and depression. (Id. at 29). The ALJ further found that
Plaintiff’s medically determinable impairments of stress incontinence and history of
alcohol abuse were non-severe. (Id.).
At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of any Listing.
(Id.). The ALJ particularly considered the criteria of Listings 1.15, 12.04, and 12.06 in
reaching his conclusion. (Id. at 29-31).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC
to perform light work as defined in 20 C.F.R. § 404.1567(b), except that Plaintiff can:
sit, stand or walk 6 hours in an 8 hour workday; occasionally climb ramps or
stairs; never climb ladders, ropes or scaffolds; occasionally stoop, kneel,
crouch; never crawl; frequently reach bilaterally. She must never be exposed
to excessive vibration or to hazards such as unprotected heights or moving
machinery. Work is limited to simple, routine tasks that can be learned after
a short demonstration or within 30 days. Work [must] not involve[] any
production rate or casework. Work must allow for variations in productivity.
She must have no more than frequent interaction with the public, coworkers
and supervisors.
(Id. at 31). At step four, the ALJ found that Plaintiff was unable to perform any past
relevant work. (Id. at 36).
At step five, the ALJ relied on the testimony of a vocational expert (“VE”) to
conclude that, considering Plaintiff’s age, education, work experience, and RFC, there
were jobs that exist in significant numbers in the national economy that Plaintiff could
perform, including the representative occupations of cleaner, price marker, and collator.
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(Id. at 37-38). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the
Act. (Id. at 38).
II.

The Commissioner’s Determination is Supported by Substantial Evidence and
Free from Legal Error
Plaintiff asks the Court to reverse or, in the alternative, to remand this matter to the

Commissioner, arguing that (1) the ALJ failed to properly evaluate medical opinion
evidence, and (2) the ALJ was unduly adversarial at the hearing and in his decision. The
Court has considered Plaintiff’s arguments and, for the reasons discussed below, finds that
they are without merit, and that the Commissioner’s decision is supported by substantial
evidence in the record.
A.

Assessment of Medical Opinion Evidence

The Court turns first to Plaintiff’s arguments relating to the ALJ’s assessment of the
opinions of Anil Mathur, M.D., Plaintiff’s treating physician.
In deciding a disability claim, an ALJ is tasked with “weigh[ing] all of the evidence
available to make an RFC finding that [is] consistent with the record as a whole.” Matta
v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013). It is well-settled that an ALJ’s conclusion
need not “perfectly correspond with any of the opinions of medical sources cited in his
decision.” Id. However, an ALJ is not a medical professional, and “is not qualified to
assess a claimant’s RFC on the basis of bare medical findings.” Ortiz v. Colvin, 298 F.
Supp. 3d 581, 586 (W.D.N.Y. 2018) (quotation omitted). In other words:
An ALJ is prohibited from ‘playing doctor’ in the sense that ‘an ALJ may
not substitute his own judgment for competent medical opinion. . . .’ This
rule is most often employed in the context of the RFC determination when
the claimant argues either that the RFC is not supported by substantial
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evidence or that the ALJ has erred by failing to develop the record with a
medical opinion on the RFC.
Quinto v. Berryhill, No. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec.
1, 2017) (citations omitted). “[A]s a result[,] an ALJ’s determination of RFC without a
medical advisor’s assessment is not supported by substantial evidence.” Dennis v. Colvin,
195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016) (quotation and citation omitted). However, at
bottom, “[a]n RFC finding is administrative in nature, not medical, and its determination
is within the province of the ALJ, as the Commissioner’s regulations make clear.” Curry
v. Comm’r of Soc. Sec., 855 F. App’x 46, 48 n.3 (2d Cir. 2021).
Under the regulations applicable to Plaintiff’s claim, the Commissioner “will not
defer or give any specific evidentiary weight, including controlling weight, to any medical
opinion(s) or prior administrative medical finding(s), including those from [the claimant’s]
medical sources.” 20 C.F.R. § 404.1520c(a). Instead, when a medical source provides one
or more medical opinions, the Commissioner will consider the persuasiveness of those
medical opinions using the factors listed in paragraphs (c)(1) through (c)(5) of the
applicable sections. Id. Those factors include: (1) supportability; (2) consistency; (3)
relationship with the claimant, including the length of the treatment relationship, the
frequency of examinations, purpose and extent of the treatment relationship, and the
examining relationship; (4) specialization; and (5) any other factors that “tend to support
or contradict a medical opinion or prior administrative medical finding.”

Id. at

§ 404.1520c(c).
When evaluating the persuasiveness of a medical opinion, the most important
factors are supportability and consistency.
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Id. at § 404.1520c(a).

With respect to

“supportability,” the regulations provide that “[t]he more relevant the objective medical
evidence and supporting explanations presented by a medical source are to support his or
her medical opinion(s) or prior administrative medical finding(s), the more persuasive the
medical opinions or prior administrative medical finding(s) will be.”

Id. at

§ 404.1520c(c)(1). With respect to “consistency,” the regulations provide that “[t]he more
consistent a medical opinion(s) or prior administrative medical finding(s) is with the
evidence from other medical sources and nonmedical sources . . ., the more persuasive the
medical opinion(s) or prior administrative medical finding(s) will be.”

Id. at

§ 404.1520c(c)(2).
The ALJ must articulate his consideration of the medical opinion evidence,
including how persuasive he finds the medical opinions in the case record.

Id. at

§ 404.1520c(b). Specifically, the ALJ must explain how he considered the “supportability”
and “consistency” factors for a medical source’s opinion. Id. at § 404.1520c(b)(2). The
ALJ may—but is not required to—explain how he considered the remaining factors. Id.
Dr. Mathur provided a medical opinion on August 17, 2021, relating to Plaintiff’s
chronic cervical strain, cervical radiculopathy, left shoulder strain, chronic lumbar strain,
lumbar radiculopathy, left knee strain, anxiety, and depression. (Dkt. 5 at 700-704). Dr.
Mathur opined that Plaintiff’s conditions and restrictions began on November 15, 2019 (id.
at 704), the date of a motor vehicle accident in which Plaintiff’s neck, mid and low back
were injured (see, e.g., id. at 32). Dr. Mathur noted that Plaintiff has constant pain in
multiple joints and opined that her symptoms would interfere with her attention over twothirds of each day. (Id. at 700). Dr. Mathur indicated that Plaintiff could sit, stand, and
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walk for less than fifteen minutes at one time and for less than one hour in an eight-hour
workday. (Id. at 701-02). He opined that she required the use of a walker to stand, balance,
and walk. (Id.). She would need opportunities to rest during the workday as a result of her
pain. (Id. at 702). Dr. Mathur opined that Plaintiff could never lift less than 10 pounds
and never balance, stoop, kneel, crouch, crawl, or reach, and could occasionally hand,
finger, or feel. (Id. at 703). He stated that she is totally disabled and unable to work. (Id.
at 704).
The ALJ explained his reasons for finding Dr. Mathur’s opinion to be “not
persuasive” as follows:
According to Dr. Mathur, [Plaintiff] is totally disabled and . . . she would be
absent from work more than four days a month due to her symptoms (18 F/2).
He determined that [Plaintiff] would have extreme limitations such as never
balancing, stooping, kneeling, crouching or crawling or lifting and carrying
any weight at all (18 F/4-5). Finally, Dr. Mathur stated that [Plaintiff] needed
a walker (18F/4). This document is not persuasive as the opinions mentioned
are neither supported by the handwritten notes of Dr. Mathur nor consistent
with the medical record. For example, they are contradicted by exhibit F1/5
(3/26/20) and 1F/66 (10/20) noting no assistive devices; exhibits 2F/28 and
4F/4 identifying [Plaintiff] with a normal gait. There are references to
“sometimes using a walker at home”, and one reference to using a walker on
one occasion at the chiropractor, but there is no script for a walker. Further,
the statement by Dr. Mathur identifying [Plaintiff] as totally disabled is also

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not persuasive since conclusory opinions involve issues reserve[d] to the
Commissioner (20 CFR 404.1527(e)).
(Id. at 36).
Plaintiff argues that the ALJ failed to properly evaluate the supportability and
consistency of Dr. Mathur’s opinion. The Court disagrees. The ALJ’s assessment of Dr.
Mathur’s opinion was proper and well-supported by the evidence.
Plaintiff suggests that the ALJ placed undue emphasis on Dr. Mathur’s opinion that
she requires a walker to stand, balance, and walk. As noted, the ALJ highlighted the
inconsistency between that opinion and treatment records from Dr. Mathur and other
providers that indicate Plaintiff had a normal gait or used no assistive devices, as well as
the fact that Dr. Mathur had never prescribed the use of such a device in the course of his
treatment of Plaintiff. Plaintiff argues that by emphasizing this one contradiction, “the ALJ
did not explain why he rejected the balance of this opinion,” and “essentially threw this
opinion out with the bathwater.” (Dkt. 6-1 at 15) (emphasis in original).
But Plaintiff overstates the ALJ’s conclusions. The ALJ stated Dr. Mathur’s
opinions were not persuasive because “the opinions mentioned are neither supported by
the handwritten notes of Dr. Mathur nor consistent with the medical record,” and he used
the opinion regarding the use of a walker as one example. This example was a valid
consideration because although Dr. Mathur indicated in the opinion that Plaintiff required
a walker to both stand/balance (Dkt. 5 at 701), and to walk/ambulate (id. at 702), his own
records did not reflect that requirement or any prescription for such device. Moreover, as
noted by the ALJ, although there are some notations in the administrative record reflecting

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Plaintiff’s occasional use of a walker at home,2 records from other providers during the
relevant time period indicate that Plaintiff did not use an assistive device. (See id. at 326
(March 26, 2020), 375 (July 13, 2020), 387 (August 27, 2020)). In addition, records
throughout the relevant time period reflect Plaintiff’s normal gait. For example, treatment
records from Plaintiff’s orthopedic surgeon dated March 24, 2020 (id. at 422), July 9, 2020
(id. at 449), September 23, 2020 (id. at 583), October 22, 2020 (id.at 577) and January 13,
2021 (id. at 653), all indicate that Plaintiff had a “normal and well-balanced gait.”
Similarly, the report from Plaintiff’s December 22, 2020, stage agency consultative
examination indicates “[g]ait normal”, that Plaintiff “[c]an walk on heels and toes without
difficulty,” and “[u]sed no assistive devices.” (Id. at 618). It was therefore not improper
for the ALJ to conclude that Dr. Mathur’s opinions about Plaintiff’s need for walker to
walk or stand were not supported by his own records or consistent with the records from
other providers that reflected a normal gait during the same time period, and to emphasize
this inconsistency in assessing Dr. Mathur’s opinions.
Plaintiff notes that Dr. Mathur’s treatment records also show abnormal objective
findings supporting his opinions that were not sufficiently discussed or considered by the
ALJ. Contrary to Plaintiff’s suggestion, it is clear from the written determination that the
ALJ considered Dr. Mathur’s records and credited Plaintiff’s reports of persistent pain
when assessing the RFC and in limiting her to light work with additional limitations. The
ALJ is not required to discuss every shred of evidence in the record in reaching a

2

At the hearing, Plaintiff confirmed that a walker had never been prescribed for her
and that the walker she used belonged to her boyfriend, who previously had hip surgery.
(Dkt. 5 at 78).
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conclusion—rather, the ALJ must articulate how the disability determination is supported
by substantial evidence, and provide an explanation that allows for meaningful review on
appeal. See Brault v. Comm’r of Soc. Sec., 683 F.3d 443, 448 (2d Cir. 2012) (“Although
required to develop the record fully and fairly, an ALJ is not required to discuss every piece
of evidence submitted.” (citation omitted)). The Court is satisfied that he has done so here.
In addition, the ALJ explained why he credited opinions from other medical
providers. For example, he addressed the opinions of state medical experts J. Koenig,
M.D., on reconsideration (Dkt. 5 at 116-19), and J. Lawrence, at the initial level of review
(id. at 98-101). Both opined that Plaintiff was capable of performing light work and could
stand or walk for 6 hours in an 8 hour workday. (Id. at 98-99, 117). The ALJ explained
his reasoning for finding these opinions persuasive:
State medical experts J. Koenig, MD, from the reconsideration level of
review and J. Lawrence, MD, from the initial level of review, both opined
that [Plaintiff] was capable of lifting 20 pounds occasionally and 10 pounds
frequently and could perform postural activities, such as stooping, kneeling
and crouching at a limited level (3A/15, 1A/11). This opinion is persuasive.
The opinions of Dr. Koenig and Dr. Lawrence are supported by the evidence
they reviewed, such as physical examination of the claimant showing no less
than 4+/5 strength in all aspects of the upper extremities (4F/15). The
opinions of both Dr. Koenig and Dr. Lawrence are also consistent with the
medical record. Office visits with the orthopedic surgeon indicated
[Plaintiff’s] pain had improved to a level of 5/10 on the pain scale, but still
remain sufficient as to require treatment as expansion, flexion and rotation

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of the neck and movement of the arms above the head continue to cause pain
(10 F/2).
(Id. at 35).
The ALJ also addressed the opinion offered by consultative examiner Nikita Dave,
M.D.3 (Id. at 617-21). Dr. Dave conducted her examination of Plaintiff on December 20,
2020, shortly after Plaintiff’s September 2020 spine surgery. The ALJ explained his
reasoning for finding Dr. Dave’s opinion partially persuasive:
The opinion offered by consultative examiner [Nikita Dave], MD, is only
partially persuasive because although [her] examination yielded some useful
objective medical information, it was admittedly performed while [Plaintiff]
was still under surgical restrictions due to her neck surgery (7F/4). Further,
Dr. [Dave] failed to offer any insight into [Plaintiff’s] limitations in
performing work-related activities. Nonetheless, it was stated that
[Plaintiff’s] lumbar extension was 5°, flexion 80°, lateral flexion 20° and
rotation fall bilaterally (7F/3). [Plaintiff] also has a SLR negative bilaterally
and strength was 5/5 in the upper and lower extremities (7F/4).
(Id. at 35-36).
Taking the ALJ’s decision as a whole, the Court concludes that the ALJ satisfied
his obligations to assess the consistency and supportability of Dr. Mathur’s opinions.
Delisa v. Comm’r of Soc. Sec., No. 22-CV-00312-HKS, 2024 WL 2274001, at *3
(W.D.N.Y. May 20, 2024) (“Supportability focuses on the fit between medical opinion
offered by the source and the underlying evidence presented by the source to support that
opinion, while consistency focuses on how well a medical source opinion is supported by
the entire record.”); Joseph L. v. Kijakazi, No. 3:22-cv-183 (TOF), 2023 WL 1432630, at
*4 (D. Conn. Feb. 1, 2023) (“Discussing supportability requires an ALJ to ‘compare the

3

The ALJ mistakenly transposed Dr. Dave’s name and called her Dave Nikita, M.D.
This error does not affect the Court’s analysis.
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medical source’s opinion to his own objective medical evidence.’”) (quoting Coleman v.
Kijakazi, No. 3:20-cv-1588 (VLB), 2022 WL 766127, at *8 (D. Conn. Mar. 14, 2022)).
Plaintiff’s arguments amount to no more than a disagreement with the ALJ’s assessment
of Dr. Mathur’s opinion. Accordingly, remand is not required on this basis.
B.

Bias

Next Plaintiff contends that the ALJ was unnecessarily hostile to Plaintiff at the
hearing and in his decision, violating the non-adversarial principles of his duties. The
Court disagrees.4
“An ALJ must conduct disability benefit proceedings in an ‘informal, nonadversarial manner.’” Cianfano v. Kijakazi, No. 22CV4801(MKV)(RWL), 2023 WL

4

The Commissioner argues that Plaintiff failed to exhaust her administrative
remedies with respect to this claim. The Commissioner relies on 20 C.F.R. § 404.940,
which provides that “[a]n [ALJ] shall not conduct a hearing if he or she is prejudiced or
partial with respect to any party or has any interest in the matter pending for decision,” and
requires a claim to notify the ALJ of an objection at the “earliest opportunity.” But this
regulation has not been held to preclude district court consideration of claims similar to
those Plaintiff presents here. See Maldonado v. Berryhill, No. 16-CV-165 (JLC), 2017 WL
946329, at *29 (S.D.N.Y. Mar. 10, 2017) (“The Commissioner’s threshold arguments that
the Court is unable to review an ALJ’s decision for bias are unpersuasive. . . . [C]ourts in
this Circuit have held that ‘[t]he failure to raise [the issue of ALJ bias] to the Appeals
Council is not jurisdictional and does not preclude this Court from reviewing Plaintiff’s
claim of bias.’” (quoting Trimm v. Colvin, No. 7:13-CV-00961 (MAD), 2015 WL 1400516,
at *4 (N.D.N.Y. Mar. 26, 2015))); Pronti v. Barnhart, 339 F. Supp. 2d 480, 495 (W.D.N.Y.
2004) (“The failure-to-exhaust defense advanced by the Commissioner is not persuasive.
The Commissioner suggests that there is an existing regulation, at 20 C.F.R. § 404.940,
dealing with bias and that plaintiffs should be barred here because they failed to follow its
procedures. I am not persuaded. First of all, that provision requires that the issue of bias
be raised at ‘the earliest opportunity.’ Plaintiff Ballard raised the bias issue first at the
Appeals Council level, and plaintiff Pronti raised the issue of bias in the first instance in
the district court. Given the evidence upon which the bias claim is based, I find that both
plaintiffs Pronti and Ballard raised the issue of bias ‘at the earliest opportunity.’”). For
these reasons, the Court will consider the substantive merit of Plaintiff’s contention.
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6455758, at *9 (S.D.N.Y. Aug. 24, 2023) (quoting 20 C.F.R. § 416.1400(b)), report and
recommendation adopted, 2023 WL 5950687 (S.D.N.Y. Sept. 12, 2023); see also Montes
v. Saul, 502 F. Supp. 3d 832, 845 (S.D.N.Y. 2020) (noting “well-settled precedent in this
Circuit, holding that SSA proceedings are fundamentally non-adversarial,” and “SSA
regulations make clear that ‘[i]n making a determination or decision in [a claimant’s] case,
[the SSA] conduct[s] the administrative review process in an informal, non-adversarial
manner’” (quoting 20 C.F.R. §§ 404.900(b), 416.1400(b))).
To demonstrate that an ALJ’s bias denied a claimant his right to a fair hearing, a
showing that “the ALJ exhibited a ‘deep-seated favoritism or antagonism that would make
a fair judgment impossible,’” is required. Jones v. Comm’r of Soc. Sec., No. 1:18-CV0526 (WBC), 2019 WL 13219347, at *6 (W.D.N.Y. July 8, 2019) (quoting Whitfield v.
Astrue, 476 F. App’x 408, 409 (2d Cir. April 19, 2012)). There is a presumption than an
ALJ is unbiased and as a result, any allegation of bias must be clear and not based on
wholly conclusory allegations or speculation. Card v. Astrue, 752 F. Supp. 2d 190, 191
(D. Conn. 2010).
Plaintiff contends that the ALJ’s questioning of her at the hearing about the facts of
her car accident and mental health treatment history evinced hostility. Specifically, she
notes that the ALJ questioned her more than once about a chiropractor’s note indicating
that Plaintiff went to the hospital after the accident, which contradicted her testimony that
she went to work that day. He also asked for a copy of the police report from the date of
the motor vehicle accident in order to corroborate her testimony regarding the facts of the
accident. In addition, the ALJ questioned Plaintiff’s testimony about her receipt of mental
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health treatment and whether she had spoken to any medical provider or counselor about
her mother being ill.

While an ALJ is not required to expressly reconcile every

inconsistency in the administrative record, it is well within the purview of the ALJ’s
responsibilities to explore any potential discrepancies contained therein. The record does
not demonstrate that this questioning by the ALJ—testing the accuracy of the information
relayed by Plaintiff which is fully within the scope of the ALJ’s authority—rose to a level
of antagonism so as to support a claim of bias. See Brogan v. Comm'r of Soc. Sec., 671 F.
App’x 12, 13 (2d Cir. 2016) (rejecting Plaintiff’s argument “that the ALJ’s post-hearing
remarks critical of Brogan’s counsel evince bias that infected his disability determination”
because “[l]ike the district court, we are not persuaded that those stray remarks—though
ill-advised—manifest ‘a deep-seated favoritism or antagonism that would make a fair
judgment impossible.’” (quoting Reddy v. Commodity Futures Trading Comm’n, 191 F.3d
109, 119 (2d Cir. 1999)).
Plaintiff also argues that the ALJ’s questioning about a February 17, 2021 treatment
record from Plaintiff’s first visit at Williamsville Psychiatry with Fred Kubas, PA-C,
evidences bias. (Dkt. 5 at 673). In the treatment record, PA-C Kubas wrote:
States she has something else to talk with me about. States her initial
disability claim was denied and she is on appeal now. She heard that having
a mental health diagnosis will help her case and wants to know what she
should do about that. Informed she has to be established for a minimum of
6 months before I would even consider disability. Is not in therapy and has
never been in the past. Made recommendation to establish with psychology.
(Id.). At the hearing, the ALJ asked Plaintiff, “[s]o is one of the reasons why you went to
the psychiat[rist] was to help your disability case?” to which Plaintiff replied that it was
not and that she had just advised PA-C Kubas that she was applying for disability and asked
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if he thought she was disabled. (Id. at 65-66). In referencing this record in his decision,
the ALJ wrote, “possibly the most telling information regarding [Plaintiff’s] mental
impairment severity is her comment to her mental health provider at her very first visit in
February 2021 that she heard having a mental health diagnosis would help her case and
wanted to know what she could do about that.” (Id. at 34). While Plaintiff views the ALJ’s
statements as an attack on her character, the Court disagrees. It is the ALJ’s task to assess
credibility and the Court finds no error in the ALJ’s consideration of Plaintiff’s statement
to her provider and explanation she provided for it at the hearing. See Giuliano v. Comm’r
of Soc. Sec., No. 20-CV-5603(EK), 2023 WL 6214159, at *7 (E.D.N.Y. Sept. 25, 2023)
(“Giuliano’s suggestion that the ALJ evinced bias against him — by ‘browbeat[ing]’ a
medical expert ‘into recanting’ and being ‘surprisingly open in voicing his hostility to Dr.
Hansen,’. . . — is without merit. At the hearing, the ALJ acted appropriately, as the trier
of fact, in questioning Dr. Hansen and clarifying his opinion as to what the evidence
showed before and after December 31, 2015 — the critical date in this case. The record
provides no other indication of any bias. Without something grounded in the record,
Giuliano’s allegations cannot sustain a claim that the ALJ’s bias denied him a fair
hearing.”); see also Joshua T. v. Comm’r of Soc. Sec., No. 19-CV-1355S, 2021 WL
1099614, at *4 (W.D.N.Y. Mar. 23, 2021) (“Medical records indicating doctors’ suspicions
of malingering are properly considered by ALJ’s in making their credibility

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determinations.” (citing Bruno v. Colvin, No. 2:15-CV-163, 2016 WL 3661243, at *3 (D.
Vt. July 5, 2016))).
Further, despite Plaintiff’s claim of bias and hostility, it is clear from the ALJ’s
decision that he did credit portions of her testimony in determining the RFC. That he did
not fully credit her testimony does not demonstrate a claim of bias or suggest that there
was a gap in the record providing a basis for reversal. See Janes v. Berryhill, 710 F. App’x
33, 34 (2d Cir. 2018) (the ALJ “is not required to develop the record any further when the
evidence already presented is adequate for [the ALJ] to make a determination as to
disability”) (internal citations omitted).
In sum, the Court finds that the ALJ appropriately based his assessment of Plaintiff’s
RFC on the evidence as a whole, including the medical opinions and Plaintiff’s own
testimony. Accordingly, there is no basis for the Court to disturb the Commissioner’s
finding of non-disability.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings (Dkt. 10) is granted, and Plaintiff’s motion for judgment on the pleadings
(Dkt. 6) is denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.
________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: June 3, 2024
Rochester, New York
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