Johnson v. Commissioner of Social Security

Filing 10

DECISION AND ORDER granting 7 Motion for Judgment on the Pleadings; denying 6 Motion for Judgment on the Pleadings. Signed by Hon. Elizabeth A. Wolford on 03/26/2024. (CAL)Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
BARRY J.,
Plaintiff,

DECISION AND ORDER

v.
6:23-CV-06037 EAW
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________

INTRODUCTION
Represented by counsel, Plaintiff Barry J. (“Plaintiff”) brings this action pursuant
to Title 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 his
application for 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. 6; Dkt. 7), and Plaintiff’s reply (Dkt. 8). For the reasons discussed
below, the Commissioner’s motion (Dkt. 7) is granted, and Plaintiff’s motion (Dkt. 6) is
denied.

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BACKGROUND
Plaintiff protectively filed his application for SSI on January 10, 2020. (Dkt. 5 at
21, 101).1 In his application, Plaintiff alleged disability beginning January 1, 2018, due to
depression, anxiety, post-traumatic stress disorder, schizophrenia, being overweight,
diabetes, high blood pressure, and fat deposits around his heart. (Id. at 21, 90-91).
Plaintiff’s application was initially denied on May 4, 2020. (Id. at 21, 123-34). A telephone
hearing was held before administrative law judge (“ALJ”) Michelle S. Marcus on March
12, 2021. (Id. at 21, 41-85). On April 27, 2021, the ALJ issued an unfavorable decision.
(Id. at 18-35). Plaintiff requested Appeals Council review; his request was denied on
November 21, 2022, making the ALJ’s determination the Commissioner’s final decision.
(Id. at 6-9). 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

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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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
substantial gainful work activity. See 20 C.F.R. § 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. § 416.920(c). If the claimant does not have a severe impairment or

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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. § 416.920(d). If the impairment meets or medically
equals the criteria of a Listing and meets the durational requirement, id. § 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. § 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.
§ 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. § 416.920(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).
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. § 416.920. At step one, the ALJ determined
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that Plaintiff had not engaged in substantial gainful work activity since January 10, 2020,
the application date. (Dkt. 5 at 23).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of:
“morbid obesity, major depressive disorder with anxious distress, and unspecified trauma
and stressor disorder.” (Id.). The ALJ further found that Plaintiff’s medically determinable
impairments of diabetes mellitus, high blood pressure, and history of alcohol use disorder
and cannabis use disorder were non-severe. (Id. at 23-24). With respect to Plaintiff’s
representations that he suffered from lumbosacral, hip, and knee pain, the ALJ concluded
that these were not medically determinable impairments. (Id. at 24).
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 12.04, 12.06, and 12.15 in
reaching her conclusion. (Id. at 24-25).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC
to perform light work as defined in 20 C.F.R. § 416.967(b), except that:
he can stand and walk in combination for 1 hour at a time uninterrupted for
a daily total of 6 hours in an 8-hour workday and can sit for 30-minute
intervals uninterrupted for a daily total of 4 hours in an 8-hour workday. He
can lift, carry, push and pull up to 20 pounds occasionally and 10 pounds
frequently and can frequently balance. [Plaintiff] can occasionally bend at
the waist, but cannot bend fully to the floor, however he can frequently
perform the stooping required to go from a standing to a seated position. He
can occasionally climb stairs and ramps, but can never kneel, crouch, crawl
or climb ladders, ropes or scaffolds. [Plaintiff] must have no complex work,
but he is capable of understanding, remembering and carrying out the basic
mental demands of simple work, adapting to such work, and making simple
work-related decisions. [Plaintiff] is limited to occasional interaction with
the public and coworkers. [Plaintiff] can frequently interact with
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supervisors. [Plaintiff] would be off-task 5% of the workday and would
require one unscheduled absence every 45 days.
(Id. at 25). At step four, the ALJ found that Plaintiff has no past relevant work. (Id. at 33).
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 electronic subassembler, small
produce assembler, and injection molder. (Id. at 33-34). Accordingly, the ALJ found that
Plaintiff was not disabled as defined in the Act. (Id. at 34-35).
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 did not properly evaluate the medical opinions of his treating therapists and the
consultative examiner, and (2) the ALJ failed to identify substantial evidence supporting
the RFC finding.2 (Dkt. 6-1 at 1, 13-30). The Court has considered each of these arguments
and, for the reasons discussed below, finds them without merit.
A.

Evaluation of Medical Opinions

Plaintiff’s first argument is that the ALJ failed to evaluate the medical opinions of
his treating therapists and the consultative examiner in accordance with the regulations.
(Dkt. 6-1 at 12).

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Although the ALJ also assessed a physical RFC of light work with restrictions to
account for Plaintiff’s impairments, Plaintiff has not challenged the assessment of the
physical RFC.
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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. § 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

§ 416.920c(c).
When evaluating the persuasiveness of a medical opinion, the most important
factors are supportability and consistency.

Id. at § 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 §

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

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persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id.
at § 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
§ 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 he
considered the “supportability” and “consistency” factors for a medical source’s opinion.
20 C.F.R. § 416.920c(b)(2). The ALJ may—but is not required to—explain how she
considered the remaining factors. Id.
1. Opinions Offered by Treating Therapists
Plaintiff first takes issue with the ALJ’s assessment of the opinions offered by his
treating therapists, including Jennifer Johnson, LMHC-P, Denise Hynson, LCSW, and
Meredith Kahl, LCAT3, arguing that the ALJ failed to credit the opinion of any of these
sources and also that the ALJ merely selected a few isolated instances of improvement and
treated them as a basis for concluding that Plaintiff is capable of working. (Dkt. 6-1 at 15).
In response, the Commissioner contends that the ALJ properly considered the opinions of

3

Plaintiff also cites to an opinion offered by Catherine Fattisco, LMSW (see Dkt. 61 at 15), but Plaintiff does not provide any argument as to how the ALJ erred in assessing
any such opinion.
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Ms. Hynson, Ms. Kahl, and Ms. Johnson, and concluded that they were not supported by
other medical evidence in the record. (Dkt. 7-1 at 21-27).
On November 18, 2019, Ms. Hynson completed a Monroe County Department of
Human Services Psychological Assessment. (Dkt. 5 at 998-1001). Ms. Hynson assessed
that Plaintiff had “marked or serious” limitations in the following categories of mental
functioning: following, understanding, and remembering simple instructions and
directions, and performing simple tasks independently; responding appropriately to coworkers or supervisors; maintaining attention and concentration for rote tasks; dealing with
normal work stress; and working in coordination with or proximity to others without being
unduly distracted. (Id. at 1000). Plaintiff had a “mild” limitation for regularly attending
to a routine and maintaining a schedule. (Id.). Ms. Hynson opined that Plaintiff was unable
to work or participate in any activities, except for treatment or rehabilitation. (Id. at 1001).
The ALJ found that Ms. Hynson’s assessment was “not persuasive.” The ALJ
explained that the assessment of marked limitations was not supported by the record, citing
to prior mental status examinations in the record. (Id. at 30). Similarly, the ALJ noted that
Ms. Hynson’s opinion was not consistent with Plaintiff’s consultative examination a few
months later, where Plaintiff again had a benign mental status exam and reported relatively
good activities of daily living, consistent with at least the ability to perform simple tasks
on a consistent basis. (Id.); see also Medina v. Comm’r of Soc. Sec., 831 F. App’x 35, 36
(2d Cir. 2020) (discussing ALJ’s finding that treating physician’s assessment of the
plaintiff’s limitations was inconsistent with the physician’s own treatment notes and
Plaintiff’s reported activities of daily living, and concluding that “[t]he ALJ’s decision not
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to afford [the physician’s] opinion controlling weight as the treating physician is wellsupported by the record”).
On August 12, 2020, Ms. Kahl opined that Plaintiff’s anxiety and depression prevent
him from sustaining employment. (Dkt. 5 at 31-32; id. at 988-91). Ms. Kahl assessed that
Plaintiff had no limitations for following, understanding, and remembering simple
instructions and directions, and for performing simple tasks independently; mild
limitations for responding appropriately to co-workers or supervisors and maintaining
attention and concentration for rote tasks; moderate limitation for regularly attending to a
routine and maintaining a schedule; and marked limitations for dealing with normal work
stress and working in coordination with others without being unduly distracted. (Id. at
990). The ALJ found that Ms. Kahl’s opinion had little persuasive value, including because
the record lacked support for the assessed marked limitations in dealing with stress and
working with others, citing specifically to Plaintiff’s own reports that he could manage his
activities of daily living, including self-care tasks, cooking, and cleaning, and he was able
to write music and maintained multiple relationships. (Id. at 31-32).
On November 20, 2020, Ms. Johnson completed a mental health assessment. (Id.
at 882-84).

Ms. Johnson found that Plaintiff was “unlimited or very good” in

understanding and remembering very short and simple instructions. (Id. at 883). Plaintiff
was “limited but satisfactory” in performing the following activities: remember work-like
procedures; carry out very short and simple instructions; work in coordination with or
proximity to others without being unduly distracted; making simple work-related
decisions; ask simple questions or request assistance; get along with co-workers or peers
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without unduly distracting them or exhibiting behavioral extremes; and be aware of normal
hazards and take appropriate precautions. (Id.). Plaintiff was “seriously limited, but not
precluded” in the following areas: maintain attention for a two-hour segment; sustain an
ordinary routine without special supervision; accept instructions and respond appropriately
to criticism from supervisors; understand and remember detailed instructions; carry out
detailed instructions; and set realistic goals or make plans independently of others. (Id.).
Plaintiff was “unable to meet competitive standards” in the following categories: maintain
regular attendance and be punctual within customary, usually strict tolerances; complete a
normal workday and workweek without interruptions from psychologically based
symptoms; perform at a consistent pace without an unreasonable number and length of rest
periods; respond appropriately to changes in a routine work setting; deal with normal work
stress; and deal with the stress of semiskilled and skilled work. (Id.). Plaintiff had
moderate limitations for interacting with others and adapting or managing himself, and
marked limitations for understanding, remembering, or applying information, and
concentrating, persisting, or maintaining pace. (Id. at 884). Plaintiff would be absent for
more than four days per month. (Id.).
The ALJ found that this opinion had little persuasive value:
[the opinion] overstates the claimant’s limitations when compared to the
longitudinal mental health evidence of record. As outlined above, in October
2020, the claimant acknowledged that treatment was effective for him and
that symptoms of anxiety and depression were getting under control. I note
that, in a report dated December 29, 2020, Ms. Johnson again assesses
significant limitations that would preclude full-time work activity and, due
to a lack of objective support in the longitudinal mental health evidence of
record, I find this opinion of little persuasive value. I also note that, Ms.
Johnson assessed a moderate limit in understanding, remembering, or
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applying information, but does not explain why the limit was currently
moderate, when she assessed a marked limit in this area the previous month.
(Id. at 32 (citation omitted)).
The Court has reviewed the opinions offered by Ms. Hynson, Ms. Kahl, and Ms.
Johnson, and the ALJ’s evaluation of those opinions, and finds that the ALJ’s assessments
are proper and well-supported by the record. Although Plaintiff argues that the ALJ’s
assessment of these opinions was conclusory and that the ALJ relied on “a few isolated
instances of improvement” for not crediting these opinions, those arguments are not
supported by the record. First, the written determination includes a lengthy discussion of
Plaintiff’s mental health treatment, including normal mental status examinations. (See,
e.g., id. at 29 (noting Plaintiff’s report of improved symptoms with medications); id. at 2930 (discussing Plaintiff’s denial of depression, suicidal ideation, and hallucinations, and
normal mental status examination); id. at 30 (discussing normal mental status examination
with consultative examiner); id. at 31 (discussing treatment records, which noted that
Plaintiff was in a positive mood, that he utilized social media to stay connected with friends
and his girlfriend, and a telehealth psychotherapy note, wherein it was noted that Plaintiff
was “positive towards the writer and engaged easily”); id. at 32 (noting that Plaintiff
reported that his depression and anxiety were getting under control); id. at 33 (discussing
that “on October 23, 2020, the only diagnosis was an eating disorder and the claimant
reported he had no mental health symptoms that would impair daily functioning”); see also

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id. at 559, 933, 955, 967, 975, 979 (mental status examinations, noting no significant
changes reported or observed)).
The ALJ referred to this evidence when evaluating the opinions offered by
Plaintiff’s therapists. This evidence undercuts the significant limitations assessed by Ms.
Hynson, Ms. Kahl, and Ms. Johnson, particularly as it relates to Plaintiff’s ability to interact
with others and to maintain attention and concentration. In addition, and as further
explained below, the limitations assessed by Ms. Hynson, Ms. Kahl, and Ms. Johnson
conflict with the assessment of the consultative examiner, which is supported by an
accompanying in-person examination, whereas the opinions offered by Ms. Hynson, Ms.
Kahl, and Ms. Johnson were offered on fill-in-the-blank or check-box forms, with little to
no explanation of why they assessed such significant restrictions.
Plaintiff points to evidence in the record that the ALJ did not specifically discuss,
arguing that by highlighting certain records reflecting stable findings but not discussing
Plaintiff’s reports of anxiety, the ALJ engaged in impermissible cherry-picking when
assessing the opinions of his therapists. (Dkt. 6-1 at 16-23). Contrary to Plaintiff’s
suggestion, it is clear from the written determination that the ALJ considered Plaintiff’s
reports of anxiety when assessing the RFC. (See, e.g., Dkt. 5 at 29 (discussing Plaintiff’s
reports of symptoms of depression, hearing voices, and feeling paranoid); id. at 30
(discussing Plaintiff’s reports of irritability, fatigue, social withdrawal, and psychomotor
retardation); id. at 31 (discussing Plaintiff’s reports of depression due to the quarantine)).4

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The Court notes that the ALJ was not required to grant Plaintiff disability benefits
based on his subjective complaints. See Andrew P. v. Comm’r of Soc. Sec., No. 1:23-CV00029 EAW, 2024 WL 798159, at *6 (W.D.N.Y. Feb. 27, 2024) (“Much of the evidence
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The ALJ discussed this evidence but concluded that Plaintiff could perform simple,
unskilled work. The 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)). The ALJ did so in this case, and
Plaintiff’s arguments amount to no more than mere disagreement with how the ALJ
weighed the opinion evidence. Accordingly, remand is not required on this basis.
2. Opinion Offered by Consultative Examiner
Plaintiff next challenges the ALJ’s assessment of the opinion offered by Todd
Deneen, Psy.D., the consultative examiner. (Dkt. 6-1 at 23). Dr. Deneen examined
Plaintiff on March 3, 2020. (Dkt. 5 at 534-37). Upon examination, Dr. Deneen found that
Plaintiff’s demeanor was cooperative, his social skills were adequate, and he was
adequately groomed. (Id. at 535). Plaintiff had fluent and clear speech, coherent and goaldirected thought processes, euthymic mood, and he was oriented to person, place, and time.
(Id.). His memory skills were intact, but his attention and concentration were mildly

cited by Plaintiff is based on his own subjective complaints of his mental functioning. It
is well-settled that while the ALJ is required to consider Plaintiff’s subjective complaints,
the ALJ is not required to grant disability benefits based on subjective complaints alone,
particularly when those subjective complaints are contradicted by other evidence in the
record.”); see also Conetta v. Berryhill, 365 F. Supp. 3d 383, 406 (S.D.N.Y. 2019) (“case
law holds that an ALJ is not required to accept the claimant’s subjective complaints without
question; he may exercise discretion in weighing the credibility of the claimant’s testimony
in light of the other evidence in the record” (quotations and citations omitted)).
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impaired due to attention deficits, and his intellectual functioning was average to below
average. (Id.). His insight and judgment were fair. (Id.). Dr. Deneen found that Plaintiff
would have a mild limitation for sustaining concentration and performing a task at a
consistent pace, regulating emotions, controlling behavior, and maintaining well-being.
(Id. at 536).
The ALJ discussed this opinion in the written determination and found it to be
“highly persuasive,” including because the mental status examination was an objective
measure of Plaintiff’s mental functioning. (Id. at 30). In addition, the ALJ noted that Dr.
Deneen’s opinion was consistent with both his mental status exam findings, and Plaintiff’s
own reported activities of daily living. (Id.). Finally, the ALJ noted that Dr. Deneen’s
indication that Plaintiff would benefit from vocational training and rehabilitation was
consistent with his mental limitations not being at a disabling level. (Id.).
Plaintiff argues that the ALJ failed to meaningfully evaluate mental status
examinations in the written determination, that the ALJ failed to compare Dr. Deneen’s
findings with any other evidence in the record, and also that as a consultative examiner,
Dr. Deneen’s opinion is not entitled to controlling weight since it was based on one
examination without any review of the record. (Dkt. 6-1 at 23-25). The Court disagrees.
First, it is clear from the record that the ALJ considered Dr. Deneen’s findings in
conjunction with other evidence in the record, including the opinions offered by Plaintiff’s
therapists and Plaintiff’s activities of daily living. (See, e.g., Dkt. 5 at 30 (discussing
opinion offered by Ms. Hynson, as compared to exam conducted by Dr. Deneen, and
Plaintiff’s reported activities of daily living)). The written determination further contains
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an extensive discussion of Plaintiff’s mental health treatment records, including mental
status examinations (see id. at 24-25, 29-33), and therefore it is clear to the Court that the
ALJ considered Plaintiff’s longitudinal mental health record when assessing Dr. Deneen’s
opinion.
Plaintiff’s argument suggests that it was error for the ALJ to credit the opinion of
Dr. Deneen because he examined Plaintiff on only one occasion. However, it is wellsettled that “[a]n ALJ is entitled to rely on the opinions of both examining and nonexamining State agency medical consultants, because those consultants are deemed to be
qualified experts in the field of social security disability.” Bump v. Comm’r of Soc. Sec.,
No. 5:15-CV-1077 (GTS), 2016 WL 6311872, at *4 (N.D.N.Y. Oct. 28, 2016). Because
Plaintiff has failed to identify any specific error in the ALJ’s assessment of Dr. Deneen’s
opinion, which is supported by other evidence in the record and his own examination of
Plaintiff, remand is not required on this basis.
In sum, Plaintiff’s arguments regarding the ALJ’s evaluation of opinion evidence
amounts to no more than his disagreement with the ALJ’s conclusions, and this is not a
basis for reversal. 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.”). Accordingly, remand is not required on this
basis.
B.

The RFC Assessment

Plaintiff’s second and final argument is that the ALJ failed to identify substantial
evidence supporting the RFC assessment. (Dkt. 6-1 at 25). Specifically, Plaintiff argues
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that the record does not contain substantial evidence that Plaintiff would be off-task only
five percent of the time and absent from work once every 45 days, and also that there is no
evidentiary support for the restriction limiting Plaintiff to occasional interactions with the
public and his co-workers, and frequent interactions with supervisors. (Id. at 25-30). In
response, the Commissioner contends that substantial evidence, including the opinion
offered by Dr. Deneen, supports the mental RFC. (Dkt. 7-1 at 6-16).
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 h[er] decision,”
id., an ALJ is not a medical professional, and therefore she “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). 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

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or formal medical opinion is not necessarily required.” (quotations, citations, and alteration
omitted)).
Plaintiff takes issue with the fact that the ALJ assessed an off-task and absence
limitation, despite finding that the opinions offered by his therapists were not persuasive.
(Dkt. 6-1 at 25-26).

Contrary to what Plaintiff’s argument suggests, “an RFC

determination, even one containing highly specific limitations, is not fatally flawed merely
because it was formulated absent a medical opinion or specific limitation.” Tiffany L. v.
Comm’r of Soc. Sec., No. 1:20-CV-0677 (WBC), 2021 WL 3145694, at *4 (W.D.N.Y. July
26, 2021) (citing Cook v. Comm’r of Soc. Sec., 818 F. App’x 108, 109-10 (2d Cir. 2020)).
Accordingly, to the extent Plaintiff’s argument is premised on the ALJ affording Plaintiff
an off-task and absence limitation without a medical opinion assessing that very same
limitation, that argument is not supported by the law, and courts have previously rejected
it on several occasions. See, e.g., Michael K. v. Comm’r of Soc. Sec., No. 1:20-cv-1467DB, 2022 WL 3346930, at *10 (W.D.N.Y. Aug. 12, 2022) (“just because there is no
explicit opinion or subjective complaint that mirrors an RFC limitation does not mean there
was an error”); Jennifer O. v. Comm’r of Soc. Sec., No. 1:20-CV-1474 (WBC), 2022 WL
2718510, at *4 (W.D.N.Y. July 13, 2022) (“an RFC determination, even one containing
highly specific limitations, is not fatally flawed merely because it was formulated absent a
medical opinion”); see also Thomas S. v. Comm’r of Soc. Sec., No. 19-CV-1663-FPG, 2021
WL 1293105, at *6 (W.D.N.Y. Apr. 7, 2021) (“Overall, although the ALJ’s 5% off-task
limitation did not directly correspond to a medical opinion in the record, the ALJ’s
determination was supported by substantial evidence. In concluding that Plaintiff would
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be off-task 5% of the workday, the ALJ relied on the record as a whole, including medical
opinion evidence, objective mental status examinations, and Plaintiff’s testimony
concerning his daily activities.”).
Here, it is clear to the Court that the ALJ did not formulate the mental limitations in
the RFC from whole cloth. Rather, the ALJ considered the multiple medical opinions in
conjunction with the other evidence in the record, including Plaintiff’s reports of his
functioning, in assessing the RFC, and the ALJ adequately explained how he incorporated
these limitations into the RFC. (See, e.g., Dkt. 5 at 33 (explaining finding that Plaintiff is
limited to occasional interaction with the public and coworkers but he can frequently
interact with supervisors, which is consistent with Plaintiff’s report that he has friends, uses
social media, and has improved anxiety to the point he can now stand in lines, but due to
possible distraction from psychological symptoms, providing Plaintiff with ability to be
off-task five percent of the workday, as well as one unscheduled absence every 45 days);
id. (noting that “the mental limitations are related to some issues in concentration,
persistence and maintaining pace, as well as social limits due to some paranoid thinking,
but the records do not always show much wrong and . . . euthymic mood is often noted.”)).
Finally, the Court notes that the RFC’s restrictions for social interaction, and time
off-task or absent, are entirely consistent with (or even more generous than) the opinion
offered by Dr. Deneen. Specifically, Dr. Deneen opined that Plaintiff had no limitations
for interacting adequately with supervisors, co-workers, and the public, or for sustaining
an ordinary routine and regular attendance at work, but that he would have a mild limitation
for sustaining concentration and performing a task at a consistent pace. (See Dkt. 5 at 536).
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The RFC more than accounts for these limitations, providing Plaintiff with some
restrictions on social interaction and time off-task, to account for difficulties sustaining
attention and concentration. See Deshantal W. v. Comm’r of Soc. Sec., No. 1:21-cv-624DB, 2024 WL 1157048, at *12 (W.D.N.Y. Mar. 18, 2024) (“the ability to perform unskilled
work . . . is consistent with even moderate [mental] limitations.” (collecting cases)). In
sum, it is clear to the Court how the ALJ arrived at the RFC, which is supported by
substantial evidence in the record. Plaintiff has failed to show that greater restrictions are
required, and remand is not required on this basis.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings (Dkt. 7) 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: March 26, 2024
Rochester, New York

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