Hayes v. Commissioner of Social Security
Filing
10
DECISION AND ORDER denying 6 Motion for Judgment on the Pleadings; granting 7 Motion for Judgment on the Pleadings. Signed by Hon. Elizabeth A. Wolford on 03/25/2024. (MGB)Clerk to Follow up
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ALISSA H.,
Plaintiff,
DECISION AND ORDER
v.
6:23-CV-06064 EAW
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
INTRODUCTION
Represented by counsel, plaintiff Alissa H. (“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 her
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, Plaintiff’s motion (Dkt. 6) is denied and the Commissioner’s motion (Dkt. 7) is
granted.
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BACKGROUND
Plaintiff protectively filed her application for SSI on March 24, 2017. (Dkt. 5 at
149-54).1 In her application, Plaintiff alleged disability beginning February 1, 2017. (Id.
at 149; 5-1 at 298). Plaintiff’s application was initially denied on September 6, 2017. (Id.
at 88). At Plaintiff’s request, a hearing was held before administrative law judge (“ALJ”)
B. Hannan on January 7, 2019. (Id. at 36-73). On May 6, 2019, the ALJ issued an
unfavorable decision. (Id. at 20-31). Plaintiff requested Appeals Council review; her
request was denied on April 30, 2020, making the ALJ’s determination the Commissioner’s
final decision. (Id. at 6-11). Plaintiff appealed to the United States District Court for the
Western District of New York. The matter was remanded by former United States
Magistrate Judge William Carter for further administrative proceedings. (Dkt. 5-1 at 388400).
A second hearing was held before the same ALJ on September 12, 2022. (Id. at
298). An unfavorable decision was issued on September 28, 2022. (Id. at 298-313). 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
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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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
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
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activities. Id. § 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. § 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); see also 20 C.F.R.
§ 404.1560(c).
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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
that Plaintiff had not engaged in substantial gainful work activity since March 24, 2017,
the application date. (Dkt. 5-1 at 300).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of:
bipolar disorder, personality disorder, anxiety disorder, carpal tunnel syndrome, and
asthma. (Id.). The ALJ further found that Plaintiff’s back impairment and obesity were
non-severe. (Id. at 300-01).
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 301). The ALJ particularly considered the criteria of Listings 3.03, 12.04, and 12.06 in
reaching her conclusion. (Id. at 301-04).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC
to perform a full range of work at all exertional levels, with the following additional
nonexertional limitations:
she can have occasional exposure to humidity, wetness, dust, odors, fumes,
and pulmonary irritants; she can never have any exposure to extreme cold or
extreme heat; she is able to perform simple, routine, and repetitive tasks but
not at a production rate or pace (e.g. assembly line work); she is limited to
perform simple work-related decisions; she is limited to tolerating a few
changes in a routine work setting defined as performing the same duties at
the same station or location day-to-day; she can have occasional interaction
with supervisors; she can have occasional contact with coworkers with no
tandem tasks or team type activities; she can have no contact with the public;
and she is limited to frequent bilateral handling, fingering, and feeling.
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(Id. at 304). At step four, the ALJ found that Plaintiff had no past relevant work. (Id. at
311).
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 floor cleaner, industrial cleaner, and
general laborer plastics products at the medium level; inspector and hand packager, price
marker, and routing clerk at the light level; and document preparer, electronics inspector,
and final assembler at the sedentary level. (Id. at 312). Accordingly, the ALJ found that
Plaintiff was not disabled as defined in the Act. (Id. at 313).
II.
The ALJ’s Determination is Supported by Substantial Evidence and Free from
Reversible Error
Plaintiff asks the Court to vacate the ALJ’s decision and remand this matter to the
Commissioner, arguing that the ALJ failed to comply with Judge Carter’s July 7, 2021
order and the January 7, 2022 Appeals Council order remanding the case back to the
Commissioner. The Court is not persuaded by these arguments, for the reasons discussed
below.
Judge Carter remanded this matter “for a proper assessment of opinion provided by
Dr. Chlebowski and LMHC Bellucco,” noting that “[d]ue to the errors in weighing the
providers’ opinion, the ALJ will also need to make new findings related to what other work
Plaintiff retains the ability to perform in the national economy.” (Dkt. 5-1 at 400). Among
the errors identified by Judge Carter included the ALJ’s failure to provide an explicit
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discussion of the providers’ status as treating sources, and the ALJ’s reliance on “a
selective reading of the record regarding Plaintiff’s activities of daily living, objective
observations, and non-compliance with treatment to support her weight determination and
ultimate social limitations in the RFC.” (Id. at 397). As a result, the Appeals Council
remanded the case to the ALJ “for further proceedings consistent with the order of the
court.” (Id. at 405). This Court concludes that the ALJ complied with those directives.
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 [her] decision.” Id.
However, an ALJ is not a medical professional, and “is not qualified to assess a claimant’s
RFC on the basis of bare medical findings.” Ortiz v. Colvin, 298 F. Supp. 3d 581, 586
(W.D.N.Y. 2018) (quotation omitted)). In other words:
An ALJ is prohibited from “playing doctor” in the sense that an ALJ may not
substitute [her] own judgment for competent medical opinion. This rule is
most often employed in the context of the RFC determination when the
claimant argues either that the RFC is not supported by substantial evidence
or that the ALJ has erred by failing to develop the record with a medical
opinion on the RFC.
Quinto v. Berryhill, No. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec.
1, 2017) (quotation and citations omitted).
Similarly, the ALJ may not “cherry pick” evidence. Lee G. v. Comm’r of Soc. Sec.,
No. 5:19-CV-1558(DJS), 2021 WL 22612, at *5 (N.D.N.Y. Jan. 4, 2021) (“Cherry picking
refers to improperly crediting evidence that supports findings while ignoring conflicting
evidence from the same source.” (quotation and citation omitted)); Starzynski v. Colvin,
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No. 1:15-cv-00940(MAT), 2016 WL 6956404, at *3 (W.D.N.Y. Nov. 29, 2016) (“It is
plainly improper for an ALJ to cherry-pick evidence that supports a finding of not-disabled
while ignoring other evidence favorable to the disability claimant.”) (citing Trumpower v.
Colvin, No. 6:13-cv-6661 (MAT), 2015 WL 162991, at *16 (W.D.N.Y. Jan. 13, 2015)).
“Cherry picking can indicate a serious misreading of evidence, failure to comply with the
requirement that all evidence be taken into account, or both.” Younes v. Colvin, No. 1:14CV-170(DNH/ESH), 2015 WL 1524417, at *8 (N.D.N.Y. Apr. 2, 2015) (quotation and
citation omitted).
In assessing a disability claim, an ALJ must consider and weigh the various medical
opinions of record. Pursuant to the Commissioner’s regulations:
the ALJ must consider various factors in deciding how much weight to give
to any medical opinion in the record, regardless of its source, including: (i)
the frequency of examination and the length, nature and extent of the
treatment relationship; (ii) the evidence in support of the . . . 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.
Pike v. Colvin, No. 14-CV-159-JTC, 2015 WL 1280484, at *5 (W.D.N.Y. Mar. 20, 2015)
(quotation, citation, and alterations 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” if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
case record[.]” 20 C.F.R. § 416.927(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
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“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).
If the ALJ neglects to expressly apply the requisite factors, it is considered a “procedural
error.” Estrella v. Berryhill, 925 F.3d 90, 96 (2d Cir. 2019) (quotation omitted). However,
such error is harmless if “a searching review of the record” confirms “that the substance of
the treating physician rule was not traversed.” Id. (quotations omitted).
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. § 416.927(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. . . . Those good reasons must be supported by the evidence in the case record, and
must be sufficiently specific. . . .” (quotation, citations, and internal quotation marks
omitted)).
“Unlike a treating source, a ‘nontreating source’ is defined as a ‘physician,
psychologist, or other acceptable medical source who has examined [the plaintiff] but does
not have, or did not have, an ongoing treatment relationship with [the plaintiff].’” Cardoza
v. Comm’r of Soc. Sec., 353 F. Supp. 3d 267, 283 (S.D.N.Y. 2019) (quoting Calixte v.
Colvin, 14-CV-5654 (MKB), 2016 WL 1306533, at *24 (E.D.N.Y. Mar. 31, 2016)). “The
ALJ is required to articulate consideration of the same factors for evaluating opinions from
non-treating medical sources as those for assessing treating sources; the only exception in
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which the ALJ is ‘not required to articulate how [he or she] considered evidence’ is from
nonmedical sources.” Erin B. v. Comm’r of Soc. Sec., No. 5:21-CV-248 (CFH), 2022 WL
2355429, at *8 (N.D.N.Y. June 30, 2022) (quotation and citation omitted); Brittani P. v.
Comm’r of Soc. Sec., No. 1:20-CV-775 (JLS), 2022 WL 1645811, at *3 (W.D.N.Y. May
24, 2022) (“For medical opinions of consultants or non-treating sources, 20 C.F.R.
§ 416.927(c)(3) provides that ‘because non[-]examining sources have no examining or
treating relationship with [the claimant], the weight [the ALJ] will give their medical
opinions will depend on the degree to which they provide supporting explanations for their
medical opinions.’” (quoting Messina v. Comm’r of Soc. Sec. Admin., 747 F. App’x 11, 16
n.4 (2d Cir. 2018))).
Finally, for mental health impairments—which are at issue in this case—the
opinions offered by treating providers are “all the more important,” given those
impairments are “not susceptible to clear records such as x-rays or MRIs,” and “depend
almost exclusively on less discretely measurable factors, like what the patient says in
consultations.” Flynn v. Comm’r of Soc. Sec., 729 F. App’x 119, 122 (2d Cir. 2018); see
also Olejniczak v. Colvin, 180 F. Supp. 3d 224, 228 (W.D.N.Y. 2016) (explaining that “the
treating physician rule is even more relevant in the context of mental disabilities, which by
their nature are best diagnosed over time” (quotations and citation omitted)).
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As noted, Plaintiff challenges the ALJ’s assessment of the joint opinion provided
by LMHC Stephanie Bellucco, Sudha Bakshi, M.D., and Susan Chlebowski, M.D., issued
on November 20, 2018. (Dkt. 5 at 473-77).
The mental RFC questionnaire prepared jointly by these providers reflects
Plaintiff’s diagnoses of bipolar disorder and personality disorder. (Id. at 473). The
providers noted that Plaintiff previously attended Rochester Rehabilitation between
February and August of 2016, and again beginning June 28, 2018, through the date of the
opinion. (Id.). They indicated that since returning for treatment in 2018, Plaintiff had
attended six appointments. (Id.). Plaintiff was prescribed medication the day before the
questionnaire was prepared so no information regarding side effects was available. (Id.).
The opinion describes Plaintiff as well-groomed with a normal gait and clear but rapid
speech. (Id.). She has anxious mood, intact memory, poor judgment, and limited insight.
(Id.).
In a check box section of the form, the providers opined that Plaintiff was unable to
meet competitive standards in maintaining regular attendance and punctuality, working in
coordination with others, and completing a normal workday without interruption. (Id. at
475). They identified serious limitations in her ability to sustain an ordinary routine
without special supervision, perform at a constant pace without an unreasonable number
of rest periods, accept instructions and respond appropriately to criticism from supervisors,
get along with coworkers without distracting them or exhibiting behavioral extremes,
respond appropriately to changes in a routine work setting, and deal with normal work
stress. (Id.). They opined that Plaintiff is “unable to consistently attend work due to sleep
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disturbances, heightened anxiety, and restrictions related to transportation/child
care/interpersonal relationship conflict and impulsive/damaging behaviors related to
emotional reactivity and irritability.”
(Id.).
These providers further found Plaintiff
seriously limited in the ability to set realistic goals or make plans independently of others,
deal with the stress of semiskilled and skilled work, interact appropriately with the general
public, and use public transportation. (Id. at 476). They opined that she is unable to meet
competitive standards to maintain socially appropriate behavior and would be absent more
than four days per month as a result of her impairments. (Id. at 476-77). They concluded
that she could not engage in full-time competitive employment on a sustained basis. (Id.
at 477). Attached to the opinion were several pages of treatment notes. (Id. at 480-88).
The ALJ explained her assessment of the opinion and the attached treatment notes
as follows:
As part of the exhibit, there were treatment notes attached to this
questionnaire. In July 2018, Ms. Bellucco (who is not an acceptable medical
source; see below) noted that [Plaintiff] had appropriate attire, cooperative
behavior, good eye contact, rapid speech, and racing thoughts. [Plaintiff]
denied hallucinations, had fair insight, and fair judgment. [Plaintiff] had
normal orientation, depressed mood, but no suicidal or homicidal ideation
(Exhibit 13F/18). During another examination in November 2018, Dr.
Chlebowski indicated that [Plaintiff] had good attention, good concentration,
anxious mood, rapid speech, and appropriate appearance (Exhibit 13F/12).
Of note, in 2016, Dr. Bakshi noted that [Plaintiff] had good judgment, normal
associations,
no
evidence
of
hallucinations,
and
good
attention/concentration. [Plaintiff] had clear speech, focused thought
process, and was tearful, “but appropriate” (Exhibit 13F/15-16).
Their treatment notes showed that [Plaintiff] had mixed findings. But, it does
not support the level of severity they opined to. And, as noted above, in the
CE, [Plaintiff] had fair hygiene, fluent speech, rapid speech, goal directed
thought process, flat affect, neutral mood, normal orientation, and intact
memory. [Plaintiff] recalled three out of three objects immediately.
[Plaintiff] recalled two out of three objects on delay. [Plaintiff] recited four
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digits forward and backward. [Plaintiff] had good insight, and fair judgment
(Exhibit 7F). The rest of the objective medical evidence noted that [Plaintiff]
has had either fair or good attention/concentration. [Plaintiff’s] insight and
judgment have been fair, good, or “improving” (Exhibits 3F/5, 5F/4, 15, 17,
and 32, and 12F/2). Although [Plaintiff] was found to be disheveled at one
examination, [Plaintiff] also had “improving” insight and judgment (Exhibit
18F/13). And, [Plaintiff] told her provider that her mood swings were under
better control when she was compliant with her medication regimen (Exhibit
12F/4). During another examination, [Plaintiff] was well groomed with rapid
speech, good memory, good attention, and fair judgment (Exhibit 12F/17).
Therefore, the objective medical evidence shows that [Plaintiff] had mixed
findings, but she was not as limited as opined to by Ms. Bellucco, Dr.
Chlebowski, and Dr. Bakshi. While the record shows that [Plaintiff] was in
mental health treatment from 2009, through 2011, this predates the alleged
period under review and was before [Plaintiff] turned 18 years of age.
[Plaintiff] alleged an onset date of February 1, 2017, which significantly
predates the mental health treatment she received from 2009 through 2011
(See exhibits 14F and 15F).
Also, Dr. Chlebowski only treated [Plaintiff] once for her mental health
impairments. This occurred, as noted above, in November 2018. There are
no other treatment records in the objective medical evidence from Dr.
Chlebowski. Therefore, she only completed a one-time examination of
[Plaintiff], in which she noted that [Plaintiff] had good attention, and good
concentration with rapid speech, and anxious mood (Exhibits 12F/15 and 18,
and 13F/12). There is very limited support for her opinion as she does not
[have] a history with [Plaintiff] and has not provided ongoing care. In terms
of Dr. Bakshi, she treated [Plaintiff] in 2016 as noted in exhibit 13F/15-16.
She generally noted [Plaintiff] had mostly normal or good mental health
examination findings. And, exhibit 3F/2 shows that Dr. Bakshi had three
appointments scheduled with [Plaintiff] in June and July of 2016. But,
[Plaintiff] was a “n/s” (no-show) at these appointments (Exhibit 3F/2).
Therefore, there is very limited support for her opinion about [Plaintiff],
considering that her one-time examination showed mostly normal findings.
As for Ms. Bellucco, as a L.M.H.C., although she treated [Plaintiff] more
frequently than Dr. Chlebowski and Dr. Bakshi (See exhibits 3F and 12F),
she is not an acceptable medical source. Also, as noted above, [Plaintiff] has
had mixed findings in the objective medical evidence. But these findings
show that [Plaintiff] was not as limited as stated in exhibit 13F (See exhibits
3F/5, 5F/4, 15, 17, and 32, 12F/2, 4 and 17, and 18F/13). Furthermore, as
noted above, [Plaintiff] has not been consistent with her medication regimen.
[Plaintiff] has also missed appointments despite her allegations that she has
significant mental health limitations (See exhibits 3F/2 and 12F/4).
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(Dkt. 5-1 at 308-09).
Plaintiff contends that although the ALJ’s decision does now address the treating
relationship between Plaintiff and these providers, the explanation provided remains
insufficient. The Court disagrees.
As is evident, the ALJ’s explanation for giving little weight to this opinion was
detailed. The ALJ appropriately considered the limited relationship between Plaintiff and
these providers in deciding how much weight to assign the opinion. See Hemmer v.
Comm’r of Soc. Sec., No. 6:18-CV-06804 EAW, 2020 WL 13557913, at *6 (W.D.N.Y.
Feb. 7, 2020) (“The ALJ properly concluded that MHC Bellinger’s opinion was entitled to
less weight due to her limited, short treating relationship with Plaintiff.”). That these
providers only collectively saw Plaintiff for a total of six visits following her onset date
was a relevant factor for the ALJ to consider in weighing their opinions as to Plaintiff’s
mental health limitations, as was the fact that the only one of the three providers to see her
more than one time was not an acceptable medical source.
In addition, the ALJ appropriately identified information contained in the treatment
records that did not fully support the limitations identified therein, including those
indicating that Plaintiff was well groomed with rapid speech, good memory, good attention,
good concentration, and fair judgment. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.
2002) (holding that ALJ may reject portions of a medical opinion that are inconsistent with
the evidence of record); Karla L. v. Comm’r of Soc. Sec., 516 F. Supp. 3d 293, 300
(W.D.N.Y. 2021) (“Here, the ALJ was within her discretion to conclude that Dr. Chadha’s
opinion was inconsistent with the evidence of record, including her own treatment records,
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and to thus decline to afford it controlling weight.”). It was also appropriate for the ALJ
to consider Plaintiff’s report that her mood swings were under better control when she was
compliant with a medication regimen, as well as the fact that she had missed scheduled
appointments. Jeffrey R. v. Comm’r of Soc. Sec., No. 1:21-CV-00709-EAW, 2023 WL
2581539, at *5 (W.D.N.Y. Mar. 21, 2023) (“Because ‘the regulations explicitly state that
treatment and methods used to alleviate symptoms, and how symptoms affect patterns of
daily living, are relevant to the ALJ’s assessment,’ the ALJ here properly considered the
impact of Plaintiff’s medication intake on his symptoms.” (quoting Snyder v. Comm’r of
Soc. Sec., No. 22-277-cv, 2023 WL 1943108 (2d Cir. Feb. 13, 2023))).
Plaintiff argues that the ALJ should have explained in more detail the reasons behind
Plaintiff’s struggles with verbal aggression, maintaining appointments, and compliance
with treatment, and that the failure to do so is evidence that the ALJ did not properly apply
the treating physician rule. But Plaintiff overstates the ALJ’s obligations. To be sure, an
ALJ must assess an opinion’s consistency with the record as a whole. See Halloran, 362
F.3d at 32 (“Although the treating physician rule generally requires deference to the
medical opinion of a claimant’s treating physician, the opinion of the treating physician is
not afforded controlling weight where . . . the treating physician issued opinions that are
not consistent with other substantial evidence in the record. . . .”); Snell v. Apfel, 177 F.3d
128, 133 (2d Cir. 1999) (“[T]he less consistent [a treating physician’s] opinion is with the
record as a whole, the less weight it will be given.”). But that obligation does not extend
to a requirement that the ALJ discuss every single piece of evidence in the record. Seth M.
D. v. Cmm’r of Soc. Sec. No. 1:21-CV-01116 (JJM), 2024 WL 1130381, at *6 (W.D.N.Y.
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Mar. 15, 2024) (“Although the ALJ did not discuss the treatment findings of each treatment
note, or itemize every potentially ‘negative’ finding, it is apparent from the decision that
the ALJ considered the treatment notes, as well as the negative findings.”); Arch v. Comm’r
of Soc. Sec., No. 22-CV-8826 (VF), 2024 WL 964600, at *10 (S.D.N.Y. Mar. 6, 2024)
(“But the ALJ is not ‘required to mention or discuss every single piece of evidence in the
record.’” (quoting Zabala v. Astrue, No. 05-CV-4483 (WHP), 2008 WL 136356, at *4
(S.D.N.Y. Jan. 14, 2008))). Rather, the Court just must be able to follow the ALJ’s
reasoning in a manner to sufficiently understand the basis for the opinion. See Cichocki v.
Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013) (“An ALJ need not recite every piece of
evidence that contributed to the decision, so long as the record permits us to glean the
rationale of an ALJ’s decision[.]” (quotation and citation omitted)). Here, the ALJ’s
decision meets this standard.
The ALJ acknowledged multiple times that Plaintiff’s treatment records contained
mixed findings.
But not addressing each one explicitly does not suggest that the
information was overlooked or that the ALJ cherry-picked only those portions of the
evidence that supported the disability determination. And her decision, which must be read
as a whole, did address the reasons given by Plaintiff for her noncompliance and outlined
the ALJ’s reasoning for not fully crediting Plaintiff’s testimony:
Despite [Plaintiff’s] allegations, she testified that she is not currently
receiving any mental health treatment. She is not taking any medication for
her mental health. [Plaintiff] testified that in dealing with her older child’s
health issue, it has affected her ability to get into mental health treatment.
But, she also testified that she uses Uber. And, as noted in exhibit 19F,
[Plaintiff] has seen her other providers for her carpal tunnel syndrome.
[Plaintiff] has not had any noted hospitalizations for her mental health or her
asthma during the period under review. [Plaintiff] testified that she can read
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the label of her child’s liquid medication and administer it without any
problem. Even though she told her provider that she functions better while
taking her medication (controlling her moods exhibit 12F/4), [Plaintiff] has
not taken any medication for a year. In that time, she has been able to care
for her children, read labels on medication, can use utensils to eat, make
meals for her children, and has a good relationship with her mother.
[Plaintiff’s] testimony, coupled with the findings from the objective medical
evidence, supports that [Plaintiff] is not as limited as alleged. In giving
[Plaintiff] the benefit of the doubt, the undersigned addressed her
impairments in the residual functional capacity by limiting [Plaintiff] to
frequent handling, feeling, and fingering, and limited exposure to work
environments, which would exacerbate her breathing. And, the undersigned
limited [Plaintiff] to simple tasks, simple decisions, no production standards,
and limited contact with others. No single factor mentioned is conclusive on
the issue to be determined, but when viewed in combination, and in
conjunction with the medical history and examination findings, they suggest
that [Plaintiff] is not as limited as is alleged. For all the foregoing reasons,
the undersigned concludes that [Plaintiff] has been able to perform a range
of work consistent with the residual functional capacity as assessed.
(Dkt. 5-1 at 311).
Plaintiff’s arguments essentially amount to an invitation for the Court to reweigh
the evidence, but it is the ALJ’s duty to resolve conflicts among evidence in the record.
See Smith v. Berryhill, 740 F. App’x 721, 725 (2d Cir. 2018) (“The ALJ could have reached
a different conclusion on the disputed medical record, but we defer to the ALJ’s disability
determination when it is supported by substantial evidence.”); Micheli v. Astrue, 501 F.
App’x 26, 29-30 (2d Cir. 2012) (explaining that “because it is the sole responsibility of the
ALJ to weigh all medical evidence and resolve any material conflicts in the record where
the record provides sufficient evidence for such a resolution, the ALJ will weigh all of the
evidence and see whether it can decide whether a claimant is disabled based on the
evidence he has, even when that evidence is internally inconsistent”); Bryan F. v. Comm’r
of Soc. Sec., No. 1:20-CV-0055-DB, 2021 WL 1737760, at *5 (W.D.N.Y. May 3, 2021)
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(“[I]t is within the ALJ’s discretion to resolve genuine conflicts in the evidence. In so
doing, the ALJ may ‘choose between properly submitted medical opinions.’” (quotation
omitted)). Therefore, to the extent that there was conflicting evidence in the record, the
ALJ was entitled to resolve such discrepancies.
In sum, the Court finds no reversible error in its review of the ALJ’s decision. The
ALJ properly evaluated the medical opinion evidence pursuant to the treating physician
rule, and her reasons for not adopting the entirety of the opinion at issue is supported by
substantial evidence in the record, as is the assessed mental RFC. For those reasons,
remand is not required on this basis and there is no basis to disturb the ALJ’s conclusions.
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 25, 2024
Rochester, New York
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