Phillips v. Commissioner of Social Security

Filing 18

DECISION AND ORDER denying 9 Motion for Judgment on the Pleadings; granting 15 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
___________________________________
ELIZABETH P.,
Plaintiff,

DECISION AND ORDER

v.
1:23-CV-00652 EAW
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
INTRODUCTION
Represented by counsel, Plaintiff Elizabeth P. (“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. 9; Dkt. 15), and Plaintiff’s reply (Dkt. 16). For the
reasons discussed below, the Commissioner’s motion (Dkt. 15) is granted, and Plaintiff’s
motion (Dkt. 9) is denied.

-1-

BACKGROUND
Plaintiff protectively filed her application for DIB on January 21, 2016. (Dkt. 7 at
201; Dkt. 5 at 160-161).1 In her application, Plaintiff alleged disability beginning on
December 20, 2015. (Dkt. 7 at 201; Dkt. 5 at 160). Plaintiff’s application was initially
denied on July 7, 2016. (Dkt. 7 at 201; Dkt. 5 at 92).

A hearing was held before

administrative law judge (“ALJ”) Barry Best on April 23, 2019. (Dkt. 7 at 201; Dkt. 5 at
53-80). On May 28, 2019, ALJ Best issued an unfavorable decision. (Dkt. 5 at 23-38).
Plaintiff requested Appeals Council review; her request was denied on June 16, 2020,
making the ALJ’s determination the Commissioner’s final decision. (Id. at 8-13). Plaintiff
appealed the decision to the United States District Court for the Western District of New
York, and on December 16, 2021, by agreement of the parties, the Court remanded
Plaintiff’s claim to the Commissioner for further administrative proceedings. (Dkt. 7 at
201; Dkt. 5 at 366-68).
On June 4, 2022, the Appeals Council issued an order of remand. (Dkt. 7 at 201;
Dkt. 5 at 369-73). ALJ Jason Mastrangelo held a telephone hearing on January 18, 2023.
(Dkt. 7 at 202, 234-86). On March 9, 2023, the ALJ issued an unfavorable decision. (Id.
at 201-25). 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.
-2-

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
-3-

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
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
-4-

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 last met the insured status requirements of the Act on December 31, 2020. (Dkt.
7 at 205). At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful work activity during the period from December 20, 2015, the alleged onset date,
through her date last insured of December 31, 2020. (Id.).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of:
arthritis, chronic pain/fibromyalgia, and asthma. (Id.). The ALJ further found that
Plaintiff’s medically determinable impairments of obesity, hypertension, diabetes,
colitis/irritable bowel syndrome, dysphagia, migraine, sciatica, anxiety disorder, and
depressive disorder were non-severe. (Id. at 205).
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.
at 211). The ALJ particularly considered the criteria of Listings 1.15, 1.18, 3.03, and
Plaintiff’s obesity in reaching his conclusion. (Id. at 212).
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 sit, stand, or walk 6 hours
each in an 8 hour day, except that Plaintiff “can perform occasional bending and kneeling,
-5-

but she must avoid concentrated exposure to fumes, odors, dusts, gases, and poor
ventilation.” (Id. at 212).
At step four, the ALJ found that Plaintiff was unable to perform any past relevant
work. (Id. at 223). 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 merchandise marker, routing clerk,
and fitting room attendant. (Id. at 224). Accordingly, the ALJ found that Plaintiff was not
disabled as defined in the Act. (Id.).
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 the ALJ: (1) failed to properly evaluate Plaintiff’s migraines,
degenerative disc disease of the lumbar spine, and mental impairments at step two and
subsequent steps in the analysis; (2) improperly determined the RFC based on his own lay
interpretation; and (3) failed to obtain missing mental health records. The Court has
considered each of 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.
A.

Severity Determination

Plaintiff argues that the ALJ erred at step two by failing to find Plaintiff’s migraines,
degenerative disc disease of the lumbar spine, and depression and anxiety to be severe

-6-

impairments, or to incorporate limitations arising from those impairments into the RFC.
The Court disagrees.
As a threshold matter, Plaintiff argues that a finding in the prior ALJ’s decision that
degenerative disc disease of the lumbar spine, migraines, and anxiety disorder were severe
impairments constituted a “rule of mandate” requiring the ALJ to make the same findings
in this decision. (See Dkt. 9-1 (“The ALJ’s independent decision to reevaluate Plaintiff’s
impairments at step two and leave out several of the impairments that the prior ALJ deemed
to be severe was clearly against the spirit of the Appeals Council’s remand order, and
remand on this basis is warranted.”)). This argument is meritless. The Appeals Council
vacated the earlier decision and remanded the case to ALJ Mastrangelo. (Dkt. 7 at 371).
Nothing in the Appeals Council remand order can be construed to require ALJ Mastrangelo
to make any of the same findings as the prior decision and therefore, he was free to make
findings that differed from those in the earlier decision. See Cianfano v. Kijakazi, No.
22CV4801(MKV)(RWL), 2023 WL 6455758, at *20 (S.D.N.Y. Aug. 24, 2023) (“As
directed by the Appeals Council, the ALJ undertook a de novo review, and did so on a
supplemented record. That ALJ Singh came to a different conclusion with respect to the
earlier period is of no moment.”), report and recommendation adopted, 2023 WL 5950687
(S.D.N.Y. Sept. 12, 2023); Brouillette v. Comm’r of Soc. Sec., No. 614CV1305
(GTS/WBC), 2016 WL 11477429, at *6 (N.D.N.Y. Jan. 5, 2016) (“As Defendant properly
asserts, the [Appeals Council] vacated the 2010 decision, therefore, the ALJ was not
required to adhere to his previous decision.”), report and recommendation adopted, 2016
WL 356040 (N.D.N.Y. Jan. 29, 2016); Gittens v. Astrue, No. 12 CIV. 3224 NSR GAY,
-7-

2013 WL 4535213, at *8 (S.D.N.Y. Aug. 26, 2013) (“[T]he Appeals Council vacated the
previous decisions prior to the remand. As such, ALJ Lemoine’s previous decisions had
no bearing on the proceedings before ALJ Edgell. . . . Furthermore, without an express
directive to adhere to the previous ALJ’s determinations on steps one through four, ALJ
Edgell was free to review the entire case record de novo and to reach her own
conclusions.”); Uffre v. Astrue, No. 06 Civ. 7755, 2008 WL 1792436, at *7 (S.D.N.Y. Apr.
18, 2008) (“Here, the Appeals Council vacated the ALJ’s first decision. . . . Thus, the first
decision has no bearing on these proceedings.” (citation omitted)).
Independent of her argument regarding the preclusive effect of the prior decision,
Plaintiff contends that the ALJ failed to support with substantial evidence his step two
findings as to her migraines, degenerative disc disease, and depression and anxiety. The
Court also disagrees with this argument.
At step two, “[a]n impairment is ‘severe’ if it ‘significantly limits [the claimant’s]
physical or mental ability to do basic work activities.’” Eralte v. Colvin, No. 14 Civ.
1745(JCF), 2014 WL 7330441, at *10 (S.D.N.Y. Dec. 23, 2014) (quoting 20 C.F.R. §
404.1520(c)).

“The claimant bears the burden of presenting evidence establishing

severity.” Taylor v. Astrue, 32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012) (citations omitted).
“[T]he severity prong is intended as a de minimis standard to screen out only those
claimants with ‘slight’ limitations that ‘do not significantly limit any basic work activity.’”
Vicari v. Astrue, No. 1:05-cv-4967-ENV-VVP, 2009 WL 331242, at *3 (E.D.N.Y. Feb. 10,
2009) (quoting Bowen v. Yuckert, 482 U.S. 137, 158 (1987)); see also Melendez v. Comm’r
of Soc. Sec., No. 17-CV-299-FPG, 2020 WL 4274510, at *2 (W.D.N.Y. July 24, 2020) (“In
-8-

other words, the analysis at step two is a threshold test designed to screen out de minimis
or totally groundless claims.” (quotations and citations omitted)); Cooper v. Berryhill, No.
17-CV-6782-JWF, 2019 WL 1233686, at *1 (W.D.N.Y. Mar. 15, 2019) (“Although
plaintiff bears the burden of proof at step two, it is not a heavy burden.”).
“When the parties disagree over the effect of the ALJ’s failure to include a condition
at step two, resolution of this issue comes down to a question of whether there was
substantial evidence to support the ALJ’s conclusion that [the omitted condition] should
not be included as a severe impairment.” Eralte, 2014 WL 7330441, at *10 (quotation and
citation omitted); see also Cwiklinski v. Comm’r of Soc. Sec., No. 18-CV-1204-FPG, 2020
WL 1131223, at *3 (W.D.N.Y. Mar. 9, 2020) (“Where a claimant produces some evidence
of an impairment, the Commissioner may conclude that the impairment is non-severe only
where the medical evidence ‘establishes only a slight abnormality or combination of slight
abnormalities which would have no more than a minimal effect on an individual’s ability
to work.’” (quoting SSR 85-28, 1985 WL 56856, at *3 (1985))). However, “any error at
step two is rendered harmless when the ALJ finds that a claimant has other severe
impairments and proceeds through the later steps of the sequential analysis.” Herman S.
v. Comm’r of Soc. Sec., 577 F. Supp. 3d 190, 197 (W.D.N.Y. 2022); see also Reices-Colon
v. Astrue, 523 F. App’x 796, 798 (2d Cir. 2013) (finding any step two error harmless where
ALJ considered the impairments at subsequent steps); Roane v. O’Malley, No. 22 CIV.
10704 (AEK), 2024 WL 1357845, at *5 (S.D.N.Y. Mar. 29, 2024) (“Specifically, ‘[w]hen
an [ALJ] identifies some severe impairments at step two, and then proceeds through the
sequential evaluation on the basis of the combined effects of all impairments, including
-9-

those erroneously found to be non-severe, an error in failing to identify all severe
impairments at step two is harmless.’” (quoting Girao v. Kijakazi, No. 22-cv-1419 (JLC),
2023 WL 5312064, at *13 (S.D.N.Y. 2023))).
1. Step Two Determination
In finding Plaintiff’s migraines to be non-severe, the ALJ identified treatment
records reflecting Plaintiff’s reports of migraine headaches associated with symptoms of
nausea, light and noise sensitivity, and dizziness, for which she was prescribed medication.
(Dkt. 7 at 206-07). The ALJ noted that the last record reflecting any complaints of
migraines was in neurology notes dated March 2018. (Id. at 207). The ALJ explained his
conclusion that the absence of treatment supported a finding of non-severity:
Thereafter, there is little neurology follow-up or ongoing headache
evaluation. There is no indication that [Plaintiff] maintained a headache log
or that any further intervention was recommended. In the absence of any
subsequent medical records showing complaints of or treatment for migraine
related symptoms, it is reasonable to conclude that this impairment has not
resulted in more than minimal limitations on [Plaintiff’s] ability to do basic
work activities and is a non-severe impairment.
(Id.). A lack of continued treatment was an appropriate consideration for the ALJ in
assessing the limitation’s severity. See Susan B. v. Comm’r of Soc. Sec., 515 F. Supp. 3d
225, 235 (D. Vt. 2021) (finding that lack of consistent treatment supported conclusion of
non-severity); Windom v. Berryhill, No. 6:17-cv-06720-MAT, 2018 WL 4960491, at *3
(W.D.N.Y. Oct. 14, 2018) (holding that ALJ properly found Plaintiff’s physical conditions

- 10 -

non-severe where they were controlled or minimally treated). The Court finds no error in
the ALJ’s determination of the severity of Plaintiff’s migraines.
Similarly, as required by the regulations, in finding Plaintiff’s depression and
anxiety to be non-severe, the ALJ assessed the four broad functional areas of mental
functioning, or “Paragraph B” criteria: (1) understanding, remembering, or applying
information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace;
and (4) adapting or managing oneself. 20 C.F.R. § 404.1520a(c)(4). The ALJ is required
to assess the degree of any limitations in each of these areas by characterizing them as
“none,” “mild,” “moderate,” “marked,” and “extreme.” If the ALJ rates the degree of
limitation as “none” or “mild,” the ALJ “will generally conclude that [the] impairment[] is
not severe, unless the evidence otherwise indicates that there is more than a minimal
limitation in [the claimant’s] ability to do basic work activities.”

20 C.F.R.

§ 404.1520a(d)(1).
Here, the ALJ concluded that Plaintiff had mild limitations in understanding,
remembering, or applying information; mild limitations in interacting with others; mild
limitations in concentrating, persisting, or maintaining pace; and mild limitations in
adapting or managing oneself. (Dkt. 7 at 210-11). He concluded that because none of
Plaintiff’s mental impairments caused more than a “mild” limitation in any functional area,
and the evidence does not otherwise indicate that there is more than a minimal limitation
in her ability to do basic work activities, the impairments were non-severe. (Id. at 211).
The ALJ acknowledged that the step two assessment was distinct from the analysis required
at later steps. (Id. (“The limitations identified in the ‘paragraph B’ criteria are not a residual
- 11 -

functional capacity assessment but are used to rate the severity of mental impairments at
steps 2 and 3 of the sequential evaluation process. The mental residual functional capacity
assessment used at steps 4 and 5 of the sequential evaluation process requires a more
detailed assessment. The following residual functional capacity assessment reflects the
degree of limitation the undersigned has found in the “paragraph B” mental function
analysis.”)).
In further support of his determination on the severity of Plaintiff’s mental
impairments at step two, the ALJ considered the fact that Plaintiff’s history of anxiety and
depression were generally effectively managed with medication and therapy and that the
record documented no hospitalizations. (Id. at 210). He noted that Plaintiff’s treatment
records reflect benign mental status examinations and there is no indication in the medical
evidence that the symptoms from these impairments were of such duration and intensity to
more than minimally interfere with her ability to perform work activities. (Id.). He also
considered the opinion of the impartial medical consultant who reached the same
conclusion. (Id.). These considerations were proper and provide substantial evidence for
the ALJ’s conclusions. See Apr. W. v. Kijakazi, No. 3:22CV841(AWT), 2024 WL
1327313, at *16 (D. Conn. Mar. 28, 2024) (holding that record supported ALJ’s finding
that mental impairments were non-severe “the ALJ clearly articulated specific and
reviewable reasons for finding no mental impairment other than a mild limitation in

- 12 -

understanding, remembering or applying information and in concentrating, persisting or
maintaining pace”).
As to Plaintiff’s degenerative disc disease, Plaintiff is correct that the ALJ did not
expressly address this impairment in his severity analysis. Rather, he addressed Plaintiff’s
sciatica and in connection with that analysis, noted Plaintiff’s history of lower back pain
and tenderness to the lumbar spine. (Dkt. 7 at 207). The ALJ rejected sciatica as a severe
impairment since treatment records showed mild, unremarkable findings and no
documentation of specific evaluations or treatment for sciatica prior to Plaintiff’s date last
insured. (Id. at 207). Although the ALJ’s sciatica analysis arguably addresses some of the
same limitations as degenerative disc disease, the Court agrees that Plaintiff’s degenerative
disc disease was not clearly assessed by the ALJ for severity. But as explained further
herein, even if this constituted error, any such error arising from this omission is harmless.
2. Consideration of Non-Severe Impairments at Subsequent Steps
As noted, even if the Court agreed that the ALJ erred in his severity determination,
any such error is harmless if the ALJ continues on to consider the non-severe impairments
at the subsequent steps of the analysis. See Guerra v. Comm’r of Soc. Sec., No. 1:16-CV00991 (MAT), 2018 WL 3751292, at *3 (W.D.N.Y. Aug. 7, 2018) (“Moreover, ‘[c]ourts
have developed a specialized variant of harmless-error analysis with respect to Step 2
severity errors in social security proceedings. . . . [W]hen an administrative law judge
identifies some severe impairments at Step 2, and then proceeds through [the] sequential
evaluation on the basis of [the] combined effects of all impairments, including those
erroneously found to be non severe, an error in failing to identify all severe impairments at
- 13 -

Step 2 is harmless.’” (quoting Snyder v. Colvin, No. 5:13-CV-585 GLS/ESH, 2014 WL
3107962, at *5 (N.D.N.Y. July 8, 2014)), aff’d, 778 F. App’x 75 (2d Cir. 2019); see also
Grant v. Saul, No. 3:18-CV-00261 (KAD), 2020 WL 1307106, at *6 (D. Conn. Mar. 18,
2020) (explaining that an ALJ is required to consider non-severe impairments when
fashioning the RFC). It is only where there is “no discernible basis for the court to conclude
that [the] ALJ . . . factored [the non-severe impairments] . . . into her ultimate residual
functional capacity determination,” that the error is not harmless. Snyder v. Colvin, No.
5:13-CV-585 GLS/ESH, 2014 WL 3107962, at *5 (N.D.N.Y. July 8, 2014).
Here, Plaintiff acknowledges that “the ALJ included a discussion of Plaintiff’s
headaches, low back pain, and mental impairments in subsequent steps,” but contends that
“he failed to demonstrate that he properly accounted for the impairments in the RFC
finding.” (Dkt. 9-1 at 27). The Court disagrees.
As to Plaintiff’s back impairment, the ALJ discussed Plaintiff’s medical records and
medical opinion evidence relating to this condition, including her essentially normal MRI
results and EMG study which revealed no lumbar radiculopathy. But notwithstanding the
fact that degenerative disc disease was not deemed severe, the ALJ expressly accounted
for Plaintiff’s lower back pain in the RFC he determined for Plaintiff. (Dkt. 7 at 220 (“The
residual functional capacity above adequately accounts for any pain related symptoms
stemming from the claimant’s lumbar and cervical spine disorders, knee complaints,

- 14 -

fibromyalgia, and arthritis as well as the effect of obesity on her conditions.”)).
Accordingly, any error as to the severity determination for this condition was harmless.
With respect to Plaintiff’s migraines and her anxiety and depression, it is true that
the RFC does not contain any limitations addressed to these impairments. “But the law
only requires the ALJ to evaluate non-severe impairments in the RFC analysis, not to
include limitations in the RFC. . . . To hold otherwise would defy logic: requiring an ALJ
to limit a claimant’s ability to work due to a non-severe impairment suggests that the nonsevere impairment causes significant work limitations, which runs counter to the nonseverity finding.” Catherine Jean D. v. Comm’r of Soc. Sec., No. 20-CV-1581-FPG, 2022
WL 4115367, at *3 (W.D.N.Y. Sept. 9, 2022) (citation omitted); see also Christian H. v.
Comm’r of Soc. Sec., No. 20-CV-1490MWP, 2022 WL 3648022, at *4 (W.D.N.Y. Aug.
24, 2022) (“Although an ALJ must account for limitations caused by both severe and
nonsevere impairments in formulating the RFC, . . . if a mental impairment causes only
mild limitations that do not result in any functional work-related restrictions, the ALJ does
not err by formulating an RFC without mental limitations or restrictions.”) (citation
omitted)); Maura B. C. v. Comm’r of Soc. Sec., No. 5:21-CV-0294 (DEP), 2022 WL
2789102, at *6 (N.D.N.Y. July 15, 2022) (“‘While the analysis at steps two and three
concerns the functional effects of mental impairments, the RFC analysis at step four
specifically considers work-related physical and mental activities in a work setting,’ such

- 15 -

that ‘a finding at steps two or three does not automatically translate to an identical finding
at step four.’” (quoting Wells v. Colvin, 87 F. Supp. 3d 421, 436 (W.D.N.Y. 2015))).
Here, the ALJ thoroughly considered Plaintiff’s medical records containing
information about her migraines and mental impairments in deciding that they did not
impose work-related limitations. The ALJ also addressed the medical opinion evidence
which evaluated these impairments and explained his reasoning for the weight given to
those opinions. For example, medical expert Richard Buitrago, Psy.D., opined that
Plaintiff’s mental impairments did not impose any limitations that would not interfere with
her ability to work full-time. The ALJ gave this opinion substantial weight, articulated his
reasons for doing so, and relied on Dr. Buitrago’s opinion in making the RFC
determination. Similarly, as explained in more detail herein, the ALJ explained his reasons
for not giving greater weight to the opinion of Plaintiff’s primary care provider, Alexander
Corbett, M.D., which addressed Plaintiff’s headaches. This was consistent with the ALJ’s
determination not to include any limitations in the RFC specifically related to this
impairment.
Overall, the objections raised by Plaintiff as to the sufficiency of the ALJ’s severity
determination amount to her disagreement with how the ALJ considered and resolved
conflicting evidence in the record, which does not warrant remand. See Kelinne O. o/b/o
K.P.Q. v. Comm’r of Soc. Sec., No. 523CV00812 (BKS/ML), 2024 WL 2027907, at *6
(N.D.N.Y. Apr. 16, 2024) (“To the extent that Plaintiff’s arguments amount to no more
than a disagreement with the ALJ’s conclusions, this cannot serve as an appropriate basis

- 16 -

to disturb the ALJ’s decision.”), report and recommendation adopted, 2024 WL 2023395
(N.D.N.Y. May 6, 2024).
B.

Lay Opinion

The Court turns to Plaintiff’s argument that the ALJ relied on lay opinion evidence
in assessing the RFC. Specifically, Plaintiff argues that the ALJ discounted the opinions
of Plaintiff’s primary care provider, Dr. Corbett, and consultative examiner, Hongibao Liu,
M.D., relating to her physical abilities, and instead relied on his own lay opinion in reaching
an RFC finding. (Dkt. 9-1 at 30).
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). 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, “[a]n ALJ is prohibited from
‘playing doctor’ in the sense that an ALJ may not substitute his own judgment for
competent medical opinion. . . .” Quinto v. Berryhill, No. 3:17-cv-00024 (JCH), 2017 WL
6017931, at *12 (D. Conn. Dec. 1, 2017) (quotations and citations omitted).
Because Plaintiff’s claim was filed before March 27, 2017, the ALJ was required to
apply the treating physician rule, under which a treating physician’s opinion is entitled to
“controlling weight” when it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence
- 17 -

in [the] case record[.]” 20 C.F.R. § 404.1527(c)(2). Under the treating physician rule, if
the ALJ declines to afford controlling weight to a treating physician’s medical opinion, he
or she “must consider various factors to determine how much weight to give to the
opinion.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (internal quotation marks
omitted). These factors include:
(i) the frequency of examination and the length, nature and extent of the
treatment relationship; (ii) the evidence in support of the treating physician’s
opinion; (iii) the consistency of the opinion with the record as a whole;
(iv) whether the opinion is from a specialist; and (v) other factors brought to
the Social Security Administration’s attention that tend to support or
contradict the opinion.
Id.
Whatever weight the ALJ assigns to the treating physician’s opinion, he must “give
good reasons in his notice of determination or decision for the weight [he gives to the]
treating source’s medical opinion.” 20 C.F.R. § 404.1527(c)(2); see also Harris v. Colvin,
149 F. Supp. 3d 435, 441 (W.D.N.Y. 2016) (“A corollary to the treating physician rule is
the so-called ‘good reasons rule,’ which is based on the regulations specifying that ‘the
Commissioner “will always give good reasons”’ for the weight given to a treating source
opinion.” (quoting Halloran, 362 F.3d at 32)). “Those good reasons must be supported by
the evidence in the case record, and must be sufficiently specific . . . .” Harris, 149 F.
Supp. 3d at 441 (internal quotation marks omitted). The Second Circuit “[does] not hesitate
to remand when the Commissioner’s decision has not provided ‘good reasons’ for the
weight given to a [treating physician’s] opinion and [it] will continue remanding when [it]

- 18 -

encounter[s] opinions from [ALJs] that do not comprehensively set forth reasons for the
weight assigned to a treating physician’s opinion.” Halloran, 362 F.3d at 33.
Dr. Corbett provided multiple opinions. In an August 10, 2018 employability
assessment, Dr. Corbett opined that Plaintiff was very limited in walking, standing, lifting,
carrying, pushing, pulling, bending, and using stairs or other climbing. (Dkt. 5 at 746-47).
He opined that she cannot work due to chronic pain, mental health challenges, and
fibromyalgia. (Id. at 746). On November 29, 2018, he completed a treating medical source
statement. (Dkt. 6 at 136-41). He again opined that Plaintiff cannot engage in full-time
competitive employment on a sustained basis due to chronic back pain, concentration
issues, and mental health challenges. (Id. at 136). Dr. Corbett indicated that Plaintiff could
sit for 30 minutes at a time before needing to get up and stand for 10 minutes at a time, and
would need to lay down and elevate her legs and stretch to relieve pain. (Id. at 139). Dr.
Corbett stated that Plaintiff could rarely lift less than 10 pounds and could never climb
ladders. (Id. at 139-40). He estimated that she would be off-task more than 30% of an 8hour workday and would be absent from work more than four days each month as a result
of her impairments. (Id. at 140).
The ALJ explained the weight given to Dr. Corbett’s opinions as follows:
The undersigned acknowledges that Dr. Corbett is [Plaintiff’s] longstanding
primary care physician since March 2016 and saw her for regular follow-up
at 2-3 month intervals and as such his opinions were considered very
carefully; however, his opinion is given little weight as it is inconsistent with
the objective findings in the contemporaneous treatment notes and the record
as a whole. First, any statement concluding [Plaintiff] is disabled is given no
weight, as this statement pertains to issues reserved to the Commissioner.
Secondly, the August 2018 questionnaire is given little weight as it indicates
general categories of moderately to very limited, but does not contain a
specific function-by function assessment furthering identifying the degree of
- 19 -

limitation in vocationally relevant terms. Third, the statements and opinions
of Dr. Corbett are given less weight to the extent they assert greater
limitations than suggested by the contemporaneous medical evidence and the
record as a whole. Dr. Corbett opines that [Plaintiff] would have a less than
sedentary residual functional capacity, have severely impaired attention and
concentration, and was bedbound for half the day at least once a week. The
undersigned finds that these opinions are wholly inconsistent with the overall
evidence, including the consistently benign mental status examinations with
intact concentration and memory, physical examinations demonstrating no
significant motor, strength, or neurological deficits, [Plaintiff’s] routine and
conservative treatment history, and her reported activities such as painting
her brother’s office and caring for her niece and nephew all day on the
weekends for several years. Further, Dr. Corbett indicated that medication
side effects would also negatively impact [Plaintiff’s] ability to maintain
attention and concentration; however, during pain management visits,
[Plaintiff] consistently denied side effects. Furthermore, there is no
indication of disabling exacerbations due to mental impairments and
associated limitations lasting several weeks in mental health treatment notes
or in medication management notes with Dr. Corbett. [Plaintiff] was noted
to be defensive and confrontational only when her narcotic pain medication
was being weaned with no such behavior noted on other mental status
examinations at other points in the record. For all of these reasons, the
undersigned affords no weight to Dr. Corbett’s opinions.
(Dkt. 7 at 221-22).
Dr. Liu conducted a consultative examination of Plaintiff on June 29, 2016. (Dkt.
5 at 402-06). He noted that Plaintiff appeared to be in no acute distress and had a normal
gait, but could walk on heels and toes with moderate difficulty due to lower back pain. (Id.
at 404). Dr. Liu opined that Plaintiff “has mild to moderate limitation for prolonged
walking, bending, and kneeling,” and “should avoid dust or other irritating factors to limit
asthma attacks.” (Id. at 405). The ALJ described his assessment of Dr. Liu’s opinions as
follows:
However, the undersigned notes that while Dr. Liu was specific in detailing
environmental restrictions that should be avoided due to the history of
asthma, he did not further define the term “moderate to mild limitation” in
vocationally relevant terms. The undersigned notes that although subsequent
- 20 -

evidence shows that [Plaintiff] underwent right shoulder surgery, the record
demonstrates continued conservative management of [Plaintiff’s] pain
related impairments with improvement with medication. Further, the
evidence at the hearing level, including physical examinations since the 2016
consultative examination, shows consistently stable gait, intact motor
strength, and no acute neurological deficits.
...
Overall, the opinion of Dr. Liu taken together with the exam showing some
difficulty in fully squatting and diminished lumbar range of motion and other
records showing the objective findings consistent with normal gait, motor
strength, and sensation outlined above is persuasive and given some weight
to the extent it can be reasonably read as saying that [Plaintiff] would be
precluded from rigors of medium work, or certain frequent postural activities
of bending and kneeling, and instead could engage in a range of light work
consistent with the above residual functional capacity.
(Dkt. 7 at 220).
As is evident, the ALJ articulated his reasoning for the weight accorded to the
opinions of Dr. Corbett and Dr. Liu, and the Court concludes those reasons are sound.
Contrary to Plaintiff’s suggestion, the fact that the ALJ did not accept one medical opinion
in its entirely is not evidence that he relied on his own lay opinion in reaching his
conclusions, as it is “‘within the province of the ALJ’ to rely on certain portions of a
medical opinion that are supported by substantial evidence and reject portions that are
inconsistent or contrary to the record.” Orlando A. v. Comm’r of Soc. Sec., No. 21-CV339, 2023 WL 5344934, at *4 (W.D.N.Y. Aug. 21, 2023) (quoting Veino v. Barnhart, 312
F.3d 578, 588 (2d. Cir. 2002)). Moreover, contrary to Plaintiff’s contentions, it is clear
that the ALJ did not wholly reject Dr. Liu’s opinions relating to prolonged walking,
bending, and kneeling but rather, gave some weight to that determination, which was
consistent with Plaintiff’s RFC. See Lewis v. Colvin, 548 F. App’x 675, 677 (2d Cir. 2013)
(finding that “the ALJ’s determination that Lewis could perform ‘light work’ is supported
- 21 -

by Dr. Datta’s assessment of ‘mild limitations for prolonged sitting, standing, and
walking’”)
Further, in addition to the medical opinion evidence, the ALJ considered Plaintiff’s
reports that her symptoms were controlled with medication, her benign exam findings, and
Plaintiff’s activities of daily living in formulating the RFC. While Plaintiff may disagree
with the ALJ’s consideration of the medical evidence of record, that does not mean that the
ALJ was relying on his own lay opinion in assessing Plaintiff’s RFC or that the RFC finding
is not supported by substantial evidence. For these reasons, the Court rejects Plaintiff’s
challenge to the RFC determination on this basis.
C.

Development of the Record

Finally, Plaintiff contends that the ALJ’s decision was based on an incomplete
record. Plaintiff argues that at the hearing Dr. Buitrago indicated that he reviewed only
seven mental health records but that the record suggested there may have been 60
individual sessions. (Dkt. 7 at 242-43). Plaintiff argues that the ALJ’s failure to obtain
additional mental health records warrants remand.
“Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ
generally has an affirmative obligation to develop the administrative record.” Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996). Specifically, the ALJ must “investigate and develop
the facts and develop the arguments both for and against the granting of benefits.” Vincent
v. Comm’r of Soc. Sec., 651 F.3d 299, 305 (2d Cir. 2011). “The ALJ must ‘make every
reasonable effort’ to help the claimant get medical reports from his or her medical sources
as long as the claimant has permitted the ALJ to do so.” Sotososa v. Colvin, No. 15-CV- 22 -

854-FPG, 2016 WL 6517788, at *3 (W.D.N.Y. Nov. 3, 2016) (quoting Pratts v. Chater,
94 F.3d 34, 39 (2d Cir. 1996)). However, the ALJ’s duty to develop the record is not
limitless. “[W]here there are no obvious gaps in the administrative record, and where the
ALJ already possesses a complete medical history, the ALJ is under no obligation to seek
additional information. . . .” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (internal
quotation marks and citation omitted).
At the hearing, the ALJ inquired of Plaintiff’s counsel as to the existence of any
additional counseling records. Plaintiff’s attorney reported his belief that the bulk of
mental health treatment Plaintiff received was by her primary care provider. (Dkt. 7 at
244). At the end of the hearing, the ALJ left the record open for the submission of any
additional evidence. (Id. at 285). Following the hearing, on January 20, 2023, Plaintiff’s
counsel wrote a letter to the ALJ stating, “This letter is to inform you that all requested
records concerning [Plaintiff] have been submitted and you may proceed to a decision on
this case. Thank you for allowing me the extra time to submit the additional record.” (Id.
at 539). The only additional records submitted by counsel were from a pain treatment
center. (Id. at 1202). It was therefore reasonable for the ALJ to conclude that there were
no additional records outstanding. Gregory B. v. Comm’r of Soc. Sec., No. 7:23-CV01011-GRJ, 2024 WL 2304689, at *7 (S.D.N.Y. May 17, 2024) (“When asked at the
administrative hearing whether the record was complete, Plaintiff’s counsel identified
outstanding reports from Dr. Bernstein and Dr. Warren, and the ALJ agreed to hold the
record open to allow counsel time to obtain the documents and supplement the record. . . .
Counsel stated that the record was otherwise complete. . . . In February of 2022, counsel
- 23 -

submitted the records and confirmed that no further records were outstanding. . . . Based
on the foregoing, the Court has no trouble concluding that the ALJ satisfied his duty to
develop the record.” (citations omitted)).
Moreover, there was ample evidence in the record for the ALJ to rely upon in
making his assessment, including medical opinions from multiple sources, and voluminous
treatment records. Under these circumstances, the Court does not find that there was a gap
in the record or that the ALJ failed to satisfy his duty. In sum, the Court finds no basis for
reversal or remand based on the ALJ’s development of the record.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings (Dkt. 15) is granted, and Plaintiff’s motion for judgment on the pleadings
(Dkt. 9) 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

- 24 -