Winans v. Commissioner of Social Security

Filing 19

DECISION AND ORDER granting 16 Motion for Judgment on the Pleadings; denying 10 Motion for Judgment on the Pleadings. Signed by Hon. Elizabeth A. Wolford on 06/03/2024. (CAL)Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
RACHEL W.,
Plaintiff,

DECISION AND ORDER

v.
1:23-CV-00643 EAW
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________

INTRODUCTION
Represented by counsel, Plaintiff Rachel W. (“Plaintiff”) brings this action pursuant
to Titles II and XVI 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 applications for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”). (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. 10;
Dkt. 16), and Plaintiff’s reply (Dkt. 17).

For the reasons discussed below, the

Commissioner’s motion (Dkt. 16) is granted, and Plaintiff’s motion (Dkt. 10) is denied.

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BACKGROUND
Plaintiff protectively filed her application for DIB on November 8, 2017, and an
application for SSI on November 16, 2017. (Dkt. 5 at 102-03).1 In her applications,
Plaintiff alleged disability beginning March 24, 2017, due to a bulging disc, muscle spasms
in her neck, right shoulder rotator cuff injury, diabetes, anxiety/depression,
supraventricular tachycardia, high blood pressure, asthma, and hernia. (Id. at 67, 85).
Plaintiff’s applications were initially denied on January 29, 2018. (Id. at 109-24). A video
hearing was held before administrative law judge (“ALJ”) Roxanne Fuller in Rochester,
New York, on February 18, 2020. (Id. at 42-65). On March 19, 2020, the ALJ issued an
unfavorable decision. (Id. at 18-36). Plaintiff requested Appeals Council review; her
request was denied on December 15, 2020. (Id. at 7-12).
Plaintiff appealed the decision to the United States District Court for the Western
District of New York, and on May 16, 2022, by Stipulation and Order, the parties agreed
to remand the matter to the Commissioner for further administrative proceedings. (Dkt. 7
at 583-85). The ALJ held another hearing on January 12, 2023. (Dkt. 8). On March 7,
2023, the ALJ issued an unfavorable decision. (Dkt. 7 at 521-45). This action followed.

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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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)
(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
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substantial gainful work activity. See 20 C.F.R. §§ 404.1520(b), 416.920(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), 416.920(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), 416.920(d). If the impairment meets
or medically equals the criteria of a Listing and meets the durational requirement, id.
§§ 404.1509, 416.909, 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), 416.920(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), 416.920(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), 416.920(g). To do so, the Commissioner must present evidence to
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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 and 416.920. Initially, the ALJ
determined that Plaintiff last met the insured status requirements of the Act on March 31,
2022. (Dkt. 7 at 527). At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful work activity since March 24, 2017, the alleged onset date. (Id.).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of:
“degenerative disc disease; right shoulder tendinopathy; bilateral carpal tunnel syndrome
(CTS); obesity; diabetes; depressive disorder; and generalized anxiety disorder.” (Id.).
The ALJ further found that Plaintiff’s medically determinable impairments of
supraventricular tachycardia, high blood pressure, and asthma were non-severe. (Id. at
527-28). With respect to Plaintiff’s representation that she suffered from a hernia, the ALJ
concluded that this was not a medically determinable impairment. (Id. at 528).
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, 1.16, 1.18, 9.00, 11.14,

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12.04, and 12.06 in reaching her conclusion, as well as considering the effect of Plaintiff’s
obesity as required by Social Security Ruling (“SSR”) 19-2p. (Id. at 528-31).
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) and 416.967(b), with the
following additional limitations:
occasional climb ramps or stairs, never climb ladders, ropes, or scaffolds;
occasional balance, stoop, crouch, kneel, crawl; frequent reaching in all
directions with the right dominant arm; frequent but not constant handling
objects and fingering with both hands; occasional exposure to moving
mechanical parts; no operating a motor vehicle; occasional exposure to
unprotected heights; able to perform routine and repetitive tasks; only
occasional interaction with public, co-workers, and supervisors.
(Id. at 531). At step four, the ALJ found that Plaintiff was unable to perform any past
relevant work. (Id. at 543).
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 price marker, mail room clerk, and
packager. (Id. at 543-44). Accordingly, the ALJ found that Plaintiff was not disabled as
defined in the Act. (Id. at 544).
II.

The Commissioner’s Determination is Supported by Substantial Evidence and
Free from Legal Error
Plaintiff asks the Court to remand this matter to the Commissioner, arguing that (1)

the ALJ erred in crafting the RFC because she “cherry picked” evidence, and (2) the ALJ
erred by failing to reconcile the opinion of the psychiatric consultative examiner with the
RFC, after finding the opinion to be partially persuasive. (Dkt. 10-1 at 1, 28-35). The
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Court has considered each of these arguments and, for the reasons discussed below, finds
them to be without merit.
A.

The RFC Determination

Both of Plaintiff’s arguments concern the ALJ’s formulation of the RFC. 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). While an ALJ’s conclusion need not “perfectly
correspond with any of the opinions of medical sources cited in his decision,” id., an ALJ
is not a medical professional, and therefore he “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 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) (finding
it was proper for the ALJ “pursuant to his statutory authority . . . [to] consider[ ] the medical
and other evidence in the record in its totality to reach an RFC determination”); see also
Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017) (“Where . . . the record
contains sufficient evidence from which an ALJ can assess the claimant’s residual
functional capacity, a medical source statement or formal medical opinion is not
necessarily required.” (quotations, citations, and alteration omitted)).
In arriving at the RFC, the ALJ’s reasoning “must always be sufficiently discernible
as to allow a reviewing court to ensure that the ALJ employed the proper standards and
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rendered a decision supported by substantial evidence.” Gail F. v. Comm’r of Soc. Sec.,
No. 21-CV-120-FPG, 2022 WL 17578465, at *4 (W.D.N.Y. Dec. 12, 2022) (quotations
and citation omitted).
B.

The Physical RFC

Plaintiff’s first argument is that the ALJ “cherry picked” evidence in formulating
the physical RFC. (Dkt. 10-1 at 28-31). Plaintiff focuses specifically on the ALJ’s finding
that Plaintiff can reach on an occasional basis. (Id. at 28 (arguing that the ALJ’s selective
reliance on evidence “left the portion of the RFC limiting Plaintiff to occasional reaching
unsupported by substantial evidence”)). In response, the Commissioner contends that the
ALJ properly considered the evidence in determining Plaintiff’s physical RFC, including
by considering the opinion evidence in connection with Plaintiff’s right shoulder
impairment. (Dkt. 16-1 at 5-15).
It is well-settled that “an ALJ is not permitted to ‘cherry pick’ evidence that supports
his RFC finding.” Michelle J. v. Comm’r of Soc. Sec., No. 1:21-CV-00306 CJS, 2023 WL
2623587, at *4 (W.D.N.Y. Mar. 24, 2023) (defining cherry-picking as “inappropriately
crediting evidence that supports administrative conclusions while disregarding differing
evidence from the same source” (citations omitted)). “Courts frequently remand an ALJ’s
decision when it ignores or mischaracterizes medical evidence or cherry-picks evidence
that supports his RFC determination while ignoring other evidence to the contrary.”
Jackson v. Kijakazi, 588 F. Supp. 3d 558, 585 (S.D.N.Y. 2022); see also Estrella v.
Berryhill, 925 F.3d 90, 97 (2d Cir. 2019) (“When viewed alongside the evidence of the
apparently cyclical nature of Estrella’s depression, the ALJ’s two cherry-picked treatment
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notes do not provide ‘good reasons’ for minimalizing Dr. Dron’s opinion.”). However, “an
allegation of cherry-picking is seldom successful because crediting it would require a court
to re-weigh record evidence,” and “what a claimant may label as cherry-picking can often
be described more neutrally as weighing the evidence.” Lisa T. v. Kijakazi, No. 3:20-CV1764 (SVN), 2022 WL 2207613, at *3 (D. Conn. June 21, 2022) (quotations and citations
omitted).
Plaintiff argues that the ALJ cherry picked evidence and did not discuss certain
evidence supporting greater restrictions with respect to Plaintiff’s right shoulder
impairment. (See, e.g., Dkt. 10-1 at 29-31 (arguing that the ALJ relied on a non-examining
state agency opinion and did not discuss certain records showing reduced range of motion
in the shoulder, and citing to medical records from before Plaintiff’s surgery or shortly
after the surgery)). Plaintiff’s characterization of the written determination as cherry
picking evidence is not supported by the record. Rather, as explained below, the written
determination makes plain that the ALJ considered Plaintiff’s history of right arm pain, her
testimony regarding her functioning, the medical opinion evidence, and treatment records,
in concluding that Plaintiff was capable of lifting and carrying consistent with the
requirements of performing light work (i.e., lifting and carrying 10 pounds frequently and
20 pounds occasionally), and for performing frequent reaching in all directions with the
right arm.
The ALJ first discussed Plaintiff’s rotator cuff injury, as well as her testimony that
she could not lift more than five pounds and tends to drop things, and that her daughter
helps her with some activities of daily living. (See Dkt. 7 at 531-32). The ALJ noted that
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Plaintiff’s injury was caused by a slip-and-fall incident at work in March 2017, which
resulted in an injury to her back and right shoulder. (Id. at 532). Subsequent testing
revealed normal range of motion in her joints, but with pain, and an MRI of her right
shoulder showed tendinopathy of the right tendon and mild arthropathy of the right
acromioclavicular joint with minimal spurring. (Id.).
On November 2, 2017, due to her pain, Plaintiff underwent a right shoulder
arthroscopic decompression. (Id. at 533). The ALJ noted that following the surgery,
Plaintiff reported some postoperative discomfort which slowly improved with time, and on
examination, Plaintiff walked with a well-balanced gait, and she displayed functional
ranges of motion of the shoulders, elbows, wrists, hips, knees, and ankles, as well as full
strength throughout, with intact sensations and reflexes. (Id.). Following surgery, Plaintiff
reported that she had a greater level of functioning with physical therapy, and during a
consultative examination in December 2017, Plaintiff had mild diffuse tenderness over the
right shoulder and stable joints. (Id.; see also Dkt. 5 at 1050 (in April 2018, noting that
Plaintiff had some discomfort, but “[s]ince the start of Physical Therapy the patient reports
a 70% improvement toward full recovery”)). The ALJ further noted that “[r]ecords from
2018 generally show that the claimant primarily received treatment for diabetes, suggesting
that her physical impairments were mostly stable.” (Dkt. 7 at 533; see also id. at 41-43
(treatment note from September 2019 from Pinnacle Orthopedic & Spine, noting
“functional [range of motion] of shoulders,” and full strength at the right upper extremity

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and firm grip); id. at 137 (July 2018 treatment note, documenting normal range of motion
in all joints and full strength throughout)).
After discussing this evidence, the ALJ concluded:
In terms of her physical impairments, the claimant’s pain steadily improved
after she underwent a right-shoulder decompression surgery in 2017 and a
lumbar decompression in 2019. Thereafter, the claimant effectively
managed her pain with chiropractic treatment, physical therapy, medication,
heat, ice, and a TENS unit. She reported significant relief with these
treatments. Her physical examinations were also consistently unremarkable,
as she had negative straight leg raise tests and exhibited full strength, normal
grip strength in both hands, intact sensations and reflexes, good coordination,
a normal gait, and a full range of motion in all joints.
(Id. at 535 (citations omitted)).
To support the RFC for lifting, carrying, and reaching with the right upper
extremity, the ALJ also discussed the opinion offered by J. Koenig, M.D., the state agency
medical consultant. (Id. at 537). Dr. Koenig opined that Plaintiff could lift 20 pounds
occasionally and 10 pounds frequently, and that Plaintiff should be limited to occasionally
reaching in the front, lateral, and overhead with her right upper extremity. (Id.; see also
Dkt. 5 at 75-78). The ALJ explained that he found the opinion “somewhat persuasive,”
noting specifically Dr. Koenig’s opinion with respect to reaching:
As noted above, the claimant did undergo surgery on the right shoulder to
improve her functioning, with the result of that surgery demonstrated an
overall improvement of her capabilities with the right upper extremity, with
the claimant showing full strength in the joint (Exhibit 12F/4), and affirming
that she had improvement in the joint, by at least 70% (Exhibit 19F/38). Postsurgery, in November 2017, the claimant was able to show good range of
motion in the right shoulder, with full strength throughout (Exhibit 9F/8, 30).
The claimant affirmed that surgery, and subsequent physical therapy, and
also improved her shoulder pain (Exhibits 18F/34, 19F/56). As such, Dr.
Koenig’s restriction to “occasional” reaching in all directions is not
supported by the medical findings, though given the claimant’s history of
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right shoulder impairment, the undersigned has restricted her to “frequent”
reaching in front, laterally, and overhead.
(Dkt. 7 at 537-38; see also id. at 538-39 (discussing that October and November 2017
opinions by Karen Pellicore, FNP, and Cheryle Hart, M.D., that Plaintiff could engage in
only “negligible” force in the arms was not supported by the record, including because
Plaintiff reported she had improvement with the right shoulder after that time, and medical
findings from the past three years demonstrated that Plaintiff had mostly intact strength
and neurological findings); id. at 539 (discussing 2017 opinions by Anish Patel, RPA, and
Geoffrey Gerow, a chiropractor, who opined that Plaintiff could not reach overhead or lift
with her right arm, and finding them unsupported by the record, which showed that Plaintiff
had “greater ability to at least frequently reach in all directions with the right arm, and
frequently handle and finger, bilaterally”)).
Plaintiff takes issue with the fact that the ALJ did not discuss certain medical records
showing that Plaintiff did not have a full range of motion in her right shoulder following
her surgery. Plaintiff acknowledges that evidence in the medical record demonstrated
functional range of motion in the shoulder, but argues that the ALJ “downplayed” other
records. (Dkt. 10-1 at 30). As an initial matter, and ALJ is not required to discuss every
shred of evidence in the record in reaching a 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)). Further, to the extent there were medical records with differing assessments of
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Plaintiff’s shoulder functioning, where there is conflicting evidence in the record, it is the
ALJ’s duty to consider and weigh those discrepancies. It is not the court’s function to reweigh the evidence. See, e.g., Krull v. Colvin, 669 F. App’x 31, 32 (2d Cir. 2016) (“Krull’s
disagreement is with the ALJ’s weighing of the evidence, but the deferential standard of
review prevents us from reweighing it.”). Here, the ALJ’s assessment of the evidence of
Plaintiff’s shoulder functioning was proper and well-supported by the record. As explained
above, the ALJ acknowledged Plaintiff’s complaints of right shoulder pain, but concluded
that the record as a whole supported improved right shoulder functioning following surgery
and treatment and Plaintiff’s ability to reach on a frequent basis.
In sum, it is clear from the discussion in the written determination that the ALJ
carefully considered Plaintiff’s right shoulder impairment, and the finding that Plaintiff’s
right shoulder functioning improved following her surgery is supported by medical
evidence in the record. It is likewise clear to the Court how the ALJ arrived at the
limitations for frequent reaching. Plaintiff’s argument regarding the evidence supporting
Plaintiff’s shoulder impairment amounts to no more than disagreement with the ALJ’s
weighing of the evidence, and therefore remand is not required on this basis.
C.

Consideration of the Consultative Examiner’s Opinion

Plaintiff’s second and final argument is that remand is warranted because the ALJ
failed to reconcile the psychiatric consultative examiner’s opinion with the RFC. (Dkt. 101 at 31-35). Specifically, Plaintiff argues that the ALJ found the opinion offered by
Gregory Fabiano, Ph.D., to be partially persuasive, but then failed to include moderate
limitations from the opinion in the RFC. (Id. at 31 (arguing that the ALJ needed to either
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include the moderate limitations for regulating emotion, controlling behavior, and
maintaining well-being, or explain why they were rejected)).

In response, the

Commissioner contends that the ALJ’s consideration of Dr. Fabiano’s opinion was
supported by substantial evidence. (Dkt. 16-1 at 15-24).
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), 416.920c(a). Further, when a medical
source provides one or more medical opinions, the Commissioner will consider those
medical opinions from that medical source together 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), 416.920c(c).
When evaluating the persuasiveness of a medical opinion, the most important
factors are supportability and consistency. Id. at §§ 404.1520c(a), 416.920c(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
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§ 404.1520c(c)(1). With respect to “consistency,” the new 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 in the claim, the more
persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id.
at §§ 404.1520c(c)(2), 416.920c(c)(2).
The ALJ must articulate her consideration of the medical opinion evidence,
including how persuasive she finds the medical opinions in the case record. Id. at
§§ 404.1520c(b), 416.920c(b). “Although the new regulations eliminate the perceived
hierarchy of medical sources, deference to specific medical opinions, and assigning
‘weight’ to a medical opinion, the ALJ must still articulate how [he or she] considered the
medical opinions and how persuasive [he or she] find[s] all of the medical opinions.”
Andrew G. v. Comm’r of Soc. Sec., No. 3:19-CV-0942 (ML), 2020 WL 5848776, at *5
(N.D.N.Y. Oct. 1, 2020) (quotations and citation omitted). Specifically, the ALJ must
explain how she considered the “supportability” and “consistency” factors for a medical
source’s opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The ALJ may—but is
not required to—explain how she considered the remaining factors. Id.
Dr. Fabiano examined Plaintiff on December 27, 2017.

(Dkt. 5 at 890-95).

Following a mental status examination, Dr. Fabiano opined that Plaintiff:
appears to have mild limitations in her ability to understand, remember and
apply simple directions and instructions and moderate limitations in her
ability to understand, remember, and apply complex directions and
instructions. The claimant appears to have moderate limitations in her ability
to interact adequately with supervisors, coworkers, and the public and
regulate emotions, control behavior, and maintain well-being. The claimant
does not appear to have evidence of limitations in her ability to use reason
and judgment to make work-related decisions; sustain concentration and
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perform a task at a consistent pace; sustain an ordinary routine and regular
attendance at work; maintain personal hygiene and appropriate attire; or have
awareness of normal hazards and take appropriate precautions. Difficulties
are caused by distractibility and mental health symptoms.
(Id. at 893).
The ALJ discussed Dr. Fabiano’s opinion in the written determination, finding that
the opinion was “persuasive in part”:
Dr. Fabiano’s findings are supported by his own evaluation of the claimant.
Furthermore, Dr. Fabiano adequately supported an assessment of no more
than moderate limitations in any area of mental functioning by referencing
generally normal findings from his personal examination, such as the
claimant’s coherent thought processes, cooperative demeanor, intact
attention, and good judgment and insight. However, Dr. Fabiano found no
significant limitations in the claimant’s ability to sustain concentration and
persistence, but the record evidence is consistent with at least moderate
limitations in this area. In making this determination, the undersigned
considered the claimant’s testimony to poor motivation, excessive sleep and
fatigue, and impaired focus, as well as her distractibility during his
consultative examination. Nonetheless, the claimant has shown consistently
that [she] is capable of normal attention and concentration, with good mood
and focus, especially when she is taking medication.
(Dkt. 7 at 541-42 (citations omitted)).
Here, the RFC limits Plaintiff to performing routine and repetitive tasks, and only
occasional interaction with the public, co-workers, and her supervisors. Contrary to
Plaintiff’s argument, the ALJ specifically explained in the written determination how she
arrived at the mental portion of the RFC. (See id. at 542-43 (“The claimant’s unremarkable
mental status examinations, revealing goal directed thought processes, normal insight and
judgment, and good attention and concentration, support her ability to perform routine and
repetitive tasks. Given the claimant’s testimony to social anxiety and panic attacks, she
can have only occasional interaction with the public, co-workers, and supervisors. The
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totality of the evidence does not support greater restrictions.”)). Further, the assessed RFC
accommodates Dr. Fabiano’s opinion that Plaintiff had mild-to-moderate mental
limitations. See, e.g., John B. v. Kijakazi, No. 21-CV-0252L, 2023 WL 24046, at *1-2
(W.D.N.Y. Jan. 3, 2023) (limiting plaintiff to simple, routine, repetitive tasks, simple workrelated decisions, and only occasional interaction with supervisors, coworkers, and the
public, accounted for plaintiff’s “moderate” mental limitations, including adapting or
managing himself); Bethany A. v. Comm’r of Soc. Sec., No. 1:20-CV-1267 (WBC), 2022
WL 170405, at *1, 4-5 (W.D.N.Y. Jan. 18, 2022) (explaining that “[a] finding of moderate
limitations in mental functioning does not preclude the ability to perform unskilled work,”
and finding that RFC limiting the plaintiff to simple repetitive tasks with additional social
limitations was sufficient to accommodate the consultative examiner’s opinion that the
plaintiff had moderate limitations in her ability to understand, remember, or apply complex
directions and instructions, interact adequately with supervisors, co-workers, and the
public, and regulate emotions, control behavior, and maintain well-being).
In addition to Dr. Fabiano’s opinion, the ALJ cited to other evidence in the record
demonstrating that Plaintiff retained the mental capacity to perform routine and repetitive
tasks, with occasional interaction with others. For example, the ALJ discussed Plaintiff’s
mental health records, noting that while Plaintiff appeared overwhelmed and depressed at
some appointments, on testing she was pleasant and cooperative, had clear speech and goaldirected thoughts, and normal insight, judgment, and cognition. (Dkt. 7 at 534; see also
id. at 535 (discussing records from 2018 and 2019, and noting that during counseling
sessions, Plaintiff stated she was doing well but felt a little fatigued and cranky during the
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day, she appeared pleasant and cooperative, her speech was clear and coherent, and her
thought processes were goal directed, she displayed normal insight and judgment with
intact cognition, and had normal memory and good attention and concentration)). The ALJ
also discussed Plaintiff’s testimony with respect to her activities of daily living, including
that she independently manages her personal care, cares for her dog and 13-year-old
daughter, shops in stores, handles her own finances, and completes household chores, and
while Plaintiff testified to social withdrawal, she also stated that she has some close friends
with whom she socializes, and good family relationships. (Id.). Further, during the
relevant period, Plaintiff conservatively managed her mental health with counseling and
psychotropic medications, and by 2019, she reported stable mental health. (Id.).
In sum, Plaintiff has failed to illustrate how the RFC limitation to routine, repetitive
tasks with occasional interaction with others has failed to account for Plaintiff’s mild-tomoderate mental limitations, including her limitations for regulating emotions, controlling
behavior, and maintaining well-being. Plaintiff points to no evidence supporting that other
or further limitations were necessary. 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.”).
Accordingly, remand is not required on this basis.

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CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings (Dkt. 16) is granted, and Plaintiff’s motion for judgment on the pleadings
(Dkt. 10) 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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