Ortiz v. Commissioner of Social Security

Filing 13

DECISION AND ORDER denying 5 Motion for Judgment on the Pleadings; granting 9 Motion for Judgment on the Pleadings. Signed by Hon. Elizabeth A. Wolford on 08/28/2024. (MGB)Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
CASARA O.,
Plaintiff,

DECISION AND ORDER

v.
6:23-CV-06446 EAW
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
INTRODUCTION
Represented by counsel, plaintiff Casara O. (“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. 5; Dkt. 9), and Plaintiff’s reply (Dkt. 10). For the reasons
discussed below, Plaintiff’s motion (Dkt. 5) is denied and the Commissioner’s motion (Dkt.
9) is granted.

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BACKGROUND
Plaintiff protectively filed her application for SSI on January 29, 2021. (Dkt. 4 at
20, 198-204).1 In her application, Plaintiff alleged disability beginning February 16, 2020.
(Id. at 20, 198). Plaintiff’s application was initially denied on April 28, 2021, and on
reconsideration on May 12, 2021. (Id. at 20, 86-97, 102-15). At Plaintiff’s request, a
telephone hearing was held before administrative law judge (“ALJ”) William Ross on May
2, 2022. (Id. at 20, 34-60). On May 23, 2022, the ALJ issued an unfavorable decision.
(Id. at 20-29). Plaintiff requested Appeals Council review; her request was denied on June
12, 2023, making the ALJ’s determination the Commissioner’s final decision. (Id. at 510). This action followed.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the [Social Security Administration (“SSA”)], this

Court is limited to determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct legal standard.” Talavera
v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C.
§ 405(g). The Act holds that a decision by the Commissioner is “conclusive” if it is
supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)

1

When referencing the page number(s) of docket citations in this Decision and Order,
the Court will cite to the CM/ECF-generated page numbers that appear in the upper
righthand corner of each document.
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(quotation omitted). It is not the Court’s function to “determine de novo whether [the
claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation
omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990) (holding that review of the Secretary’s decision is not de novo and that the
Secretary’s findings are conclusive if supported by substantial evidence). However, “[t]he
deferential standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003)
(citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
II.

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

is disabled within the meaning of the Act. See Bowen v. City of New York, 476 U.S. 467,
470-71 (1986). At step one, the ALJ determines whether the claimant is engaged in
substantial gainful work activity. See 20 C.F.R. § 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
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
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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).
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 January 29, 2021,
the application date. (Dkt. 4 at 22).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of:
bipolar disorder, posttraumatic stress disorder (PTSD), borderline personality disorder,
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anxiety disorder, and attention deficit disorder (ADD). (Id.). The ALJ further found that
Plaintiff’s asthma, fifth metatarsal neck fracture, and history of cocaine abuse were nonsevere, and her back pain failed to constitute a medically determinable impairment. (Id. at
22-23).
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 23). The ALJ particularly considered the criteria of Listings 12.02, 12.04, 12.06, and
12.15, in reaching his conclusion. (Id.).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC
to perform a full range of work at all exertional levels but with the following nonexertional
limitations:
[Plaintiff] can perform simple, routine and repetitive tasks over an 8-hour
workday within a normal break schedule. She can make simple work-related
decisions. [Plaintiff] can occasionally interact with supervisors and coworkers. She can interact with the public on an occasional basis, provided
interaction requires no more than exchange of non-personal work-related
information or handoff of products or materials. [Plaintiff] can tolerate
simple routine changes in a work setting.
(Id. at 25). At step four, the ALJ found that Plaintiff had no past relevant work. (Id. at 28).
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 marker, small parts assembler, or hand
packer. (Id. at 29). Accordingly, the ALJ found that Plaintiff was not disabled as defined
in the Act. (Id.).
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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, arguing that the ALJ: (1) failed

to properly develop the record; and (2) erred in his assessment of medical opinion evidence.
The Court is not persuaded by these arguments, for the reasons discussed below.
A.

Development of the Record

Plaintiff contends that the ALJ’s decision was based on an incomplete record. (Dkt.
5-1 at 6-10). Specifically, she argues that she had a long treatment history at the Catholic
Family Center in Rochester, New York, and that the full records from that treatment were
not produced to the ALJ. As evidence, she cites a form completed by Catholic Family
Center Nurse Practitioner Victoria Briggs dated April 2022, which indicates that Plaintiff
was in counseling twice a month and received medication management every one or two
months. Because the administrative record only contains treatment records through March
2021, Plaintiff contends that there should exist additional treatment records between March
2021 and April 2022 that were not before the ALJ.
“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-CV854-FPG, 2016 WL 6517788, at *3 (W.D.N.Y. Nov. 3, 2016) (quoting Pratts v. Chater,
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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, 168 F.3d at 79 n.5 (internal quotation marks and citation
omitted).
At the hearing, the ALJ inquired of Plaintiff’s counsel whether the record was
complete. The ALJ stated:
Well, I’ll run down what I have. 1F, I have Catholic Family Center, Inc.
from June of 2020 to July of 2020; second exhibit is Strong Memorial
Hospital from May of 2020 to January ’21; third exhibit is from Brown
Square Health Center, January’ 20 to January ’21; the fourth exhibit is
University of Rochester Medical Center, February 2019 to March of ’21;
fifth exhibit is a CE psychiatry from April of ’21; six and seven are DDS
medical evaluation documents; 8F is from Strong Memorial from May of ’21
to August of ’21; 9F is a Catholic Family Center from June of ’20, and 10F
is Victoria B[r]iggs from April of 2022.
(Dkt. 4 at 38). After confirming that the correct documents were in the record, the ALJ
asked, “Okay. So otherwise, [is] there any outstanding evidence?” and Plaintiff’s counsel
responded, “No, all requested records are in at this time, Your Honor.” (Id. at 39-40). The
ALJ then confirmed that “the record’s complete.” (Id. at 40).
While Plaintiff now contends that NP Briggs’ statement that Plaintiff received
counseling twice a month suggests that there should be treatment records after March 2021,
her argument rests on speculation. See Morris v. Berryhill, 721 F. App’x 25, 27 (2d Cir.
2018) (holding that “theoretical possibility [that missing records exist] does not establish
that the ALJ failed to develop a complete record”); Reginald R. v. Comm’r of Soc. Sec.,
No. 6:21-CV-06326 CJS, 2023 WL 5608869, at *16 (W.D.N.Y. Aug. 30, 2023) (“[T]he
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Court finds that such speculative arguments [that there may be additional missing records]
fall short of demonstrating that there were actual, obvious gaps which the ALJ failed to
develop.”); Debiase v. Saul, No. 3:19 CV 68 (RMS), 2019 WL 5485269, at *8 (D. Conn.
Oct. 25, 2019) (“The ALJ does not have a duty to secure records based on an unarticulated
speculation and no evidence of a gap in the record.”).
In addition, Plaintiff’s argument runs contrary to the representation from counsel at
the hearing that there were no additional records outstanding and the record was complete.
See Gregory B. v. Comm’r of Soc. Sec., No. 7:23-CV-01011-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 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));
Melissa I. o/b/o R.J.R.D. v. Comm’r of Soc. Sec., No. 1:20-CV-1799 (WBC), 2022 WL
3358138, at *4 (W.D.N.Y. Aug. 15, 2022) (“Although the ALJ has the duty to develop the
record, such a duty does not permit a claimant, through counsel, to rest on the record -indeed, to exhort the ALJ that the case is ready for decision -- and later fault the ALJ for
not performing a more exhaustive investigation.”) (citing Lindsay B. v. Comm’r of Soc.
Sec., No. 20-CV-00897, 2021 WL 4912588, at *4 (W.D.N.Y. Oct. 21, 2021)).

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On these facts, it was reasonable for the ALJ to conclude that there were no obvious
gaps in the record. Moreover, even if additional treatment notes from NP Briggs existed,
the medical source statement she completed was prepared two weeks prior to the hearing
before the ALJ. Thus, any information contained in NP Briggs’ treatment records would
presumably be encompassed in her medical source statement, an additional reason to
conclude that there was not an obvious gap in the record obligating the ALJ to further
develop the record and inquire whether additional treatment records existed. See Kaitlynn
K. v. Comm’r of Soc. Sec., No. 20-CV-1878MWP, 2023 WL 2165179, at *6 (W.D.N.Y.
Feb. 22, 2023) (“Regarding the other records identified by plaintiff, such records, to the
extent they exist, appear cumulative of the information already obtained and thus do not
create a gap warranting remand.”).
In sum, there was ample evidence in the record for the ALJ to rely upon in making
his assessment, including medical opinions and a fulsome treatment record. Under these
circumstances, the Court does not find that there was an obvious gap in the record or that
the ALJ failed to satisfy his duty. The Court finds no basis for reversal or remand based
on the ALJ’s development of the record.
B. Evaluation of Medical Opinions
Next Plaintiff argues that the ALJ failed to evaluate the medical opinion of NP
Briggs in accordance with the regulations. (Dkt. 5-1 at 10-15).
In deciding a disability claim, an ALJ is tasked with “weigh[ing] all of the evidence
available to make an RFC finding that [is] consistent with the record as a whole.” Matta
v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013). It is well-settled that an ALJ’s conclusion
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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) (quoting Dailey v. Astrue, No. 09-cv-0099, 2010 WL
4703599, *11 (W.D.N.Y. Oct. 26, 2010)). In other words:
An ALJ is prohibited from ‘playing doctor’ in the sense that ‘an ALJ may
not substitute his own judgment for competent medical opinion. . . .’ This
rule is most often employed in the context of the RFC determination when
the claimant argues either that the RFC is not supported by substantial
evidence or that the ALJ has erred by failing to develop the record with a
medical opinion on the RFC.
Quinto v. Berryhill, No. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec.
1, 2017) (citations omitted). “[A]s a result[,] an ALJ’s determination of RFC without a
medical advisor’s assessment is not supported by substantial evidence.” Dennis v. Colvin,
195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016) (quotation and citation omitted). However, at
bottom, “[a]n RFC finding is administrative in nature, not medical, and its determination
is within the province of the ALJ, as the Commissioner’s regulations make clear.” Curry
v. Comm’r of Soc. Sec., 855 F. App’x 46, 48 n.3 (2d Cir. 2021).
Under the regulations applicable to Plaintiff’s claim, the Commissioner “will not
defer or give any specific evidentiary weight, including controlling weight, to any medical
opinion(s) or prior administrative medical finding(s), including those from [the claimant’s]
medical sources.” 20 C.F.R. § 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)
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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
persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id.
at § 416.920c(c)(2).
The ALJ must articulate his consideration of the medical opinion evidence,
including how persuasive he finds the medical opinions in the case record.
§ 416.920c(b).

Id. at

“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.
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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 he
considered the remaining factors. Id.
NP Briggs completed a mental residual functional capacity questionnaire on April
20, 2022. (Dkt. 4 at 1037-41). In it, she identified Plaintiff’s diagnoses of bipolar and
borderline personality disorder. (Id. at 1037). She noted Plaintiff’s prescribed medications
of citalopram, Trileptal, and hydroxyzine, which have the side effects of fatigue. (Id.). NP
Briggs described clinical findings that demonstrated the severity of Plaintiff’s mental
impairment and symptoms as mood swings, anger, impulsivity, and depression. (Id.). She
indicated that Plaintiff’s prognosis is stable if she stays on medication. (Id.). NP Briggs
opined that Plaintiff is seriously limited in completing a normal workday and workweek
without interruptions from psychologically based symptoms. (Id. at 1039). The form asks
the provider to explain any limitations falling in the three most limited categories (i.e.,
“seriously limited,” “unable to meet competitive standards,” and “no useful ability to
function”) and to include the medical/clinical findings that support the assessment, but no
explanation is provided by NP Briggs for this opinion. (Id.). NP Briggs further opined
that Plaintiff is limited but satisfactory in a number of other categories, including her ability
to understand and remember instructions, deal with the stress of semiskilled and skilled
work, interact appropriately with the general public, or use public transportation. (Id. at
1039-40). NP Briggs estimated that on average, Plaintiff’s impairments would cause her
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to be absent from work about four days per month. (Id. at 1041). Finally, she concluded
that Plaintiff would not be able to engage in full-time competitive employment on a
sustained basis. (Id.).
The ALJ found NP Briggs’ opinion to be unpersuasive, explaining that:
The undersigned did not find mental residual functional capacity
questionnaire completed by Victoria Briggs to be persuasive (Ex. 10F). The
limitations contained therein as to her inability to maintain a full-time work
schedule and her being absent 4 days a month are not supported by
[Plaintiff’s] largely benign clinical presentation to her outpatient providers
and the examining psychological consultant (Exs. 1F, 5F, and 9F). At her
June 29, 2020, Catholic Family Center comprehensive assessment, [Plaintiff]
presented with an euthymic mood, a full affect, a cooperative attitude, clear
speech, logical thought processes, normal thought content, normal cognition,
no delusions, normal insight, and normal judgment (Exs. 1F and 9F). At her
DDS consultative examination, [Plaintiff] presented clinically with an
euthymic mood and full range affect, appropriate eye contact, normal motor
activity, fluent and clear speech, normal thought processes, clear sensorium,
full orientation, fair-to-good insight/judgment, and intact recent and remote
memory skills with 3/3 immediate and delayed recall (Ex. 5F). She showed
evidence of impaired attention and concentration by virtue of errors on serial7’s and serial 3’s computations but she was able to count and perform simple
computations (Id.). Moreover, the consultative examiner noted that her
psychiatric problems did not appear significant enough to interfere with the
claimant’s ability to function on a daily basis (Id.). Indeed, the author
provides no supporting rationale for these limitations, but noted that her
prognosis was stable if she stayed on her medications. Additionally, the
opinion is inconsistent with [Plaintiff’s] reported activities and abilities,
which include caring for 2 young children, working part-time for Door Dash,
preparing meals, cleaning, shopping, using public transportation, and doing

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laundry. The opinion also reaches the ultimate determination of disability,
which is a legal issue reserved for the Commissioner.
(Id. at 40).
Plaintiff argues that the ALJ failed to provide a sufficient rationale for not crediting
NP Briggs’ opinion that Plaintiff would have difficulty maintaining a regular work
schedule and improperly emphasized her activities of daily living. The Court disagrees.
At the outset, the Court notes that Plaintiff’s argument largely amounts to a
disagreement with the ALJ’s weighing of the medical evidence in connection with his
assessment of the opinion. But it is not for the Court to reweigh the evidence, as it is the
ALJ’s duty to resolve conflicts among medical 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.”); 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) (“[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.’” (citation and
quotation omitted)); see also Joanna O. v. Comm’r of Soc. Sec., No. 1:21-CV-130-DB,
2024 WL 580348, at *11 (W.D.N.Y. Feb. 13, 2024) (“When subjective allegations are at
issue (as opposed to objective evidence), the discretion and role of the adjudicator as the
factfinder becomes even more important to resolve the conflict.”).
The ALJ provided specific reasons for not finding NP Briggs’ opinions to be
persuasive, including the opinions’ inconsistency with the information contained in
Plaintiff’s June 29, 2020 Catholic Family Center comprehensive assessment and Plaintiff’s
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DDS consultative examination. The ALJ also appropriately considered Plaintiff’s largely
benign clinical presentation in contrast to NP Briggs’ opinion, NP Briggs’ failure to
provide supporting rationale for the limitations she identified, and her statement that
Plaintiff’s prognosis was stable while on medication. See Kentrel J. v. Comm’r of Soc.
Sec., No. 1:21-CV-197-DB, 2023 WL 2601971, at *8 (W.D.N.Y. Mar. 22, 2023) (holding
that ALJ properly considered that “there was no evidence of any psychiatric
hospitalizations or emergency room visits, and, overall, the record showed that Plaintiff
had received routine and conservative mental health treatment, and his mental health
symptoms were generally well controlled with medication” in assessing opinion evidence);
Thomas v. Comm’r of Soc. Sec., 479 F. Supp. 3d 66, 89 (S.D.N.Y. 2020) (courts “have
specifically recognized that a pattern of conservative medical treatment, such as mental
health treatment with medication and therapy but not in-patient or hospitalization care, is
a proper factor for an ALJ to consider in evaluating a claimant’s credibility.” (internal
citation and quotation omitted)). The explanation by the ALJ thus satisfied his duty under
the regulations.
Moreover, it was not inappropriate for the ALJ to consider the consistency of the
opinion with Plaintiff’s reported activities of daily living. Specifically, the ALJ cited the
fact that Plaintiff cares for her two young children, works part-time as a Door Dash driver,
prepares meals, cleans, shops, does laundry, and uses public transportation. (Dkt. 4 at 28).
While it is true that the capability to perform activities of daily living is not inherently
inconsistent with a finding of disability, “[t]he law is clear that the ALJ may consider . . .
[a claimant’s] purported activities of daily living for the purposes of a credibility
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determination.” Cahill v. Astrue, No. 1:11-CV-148, 2012 WL 3777072, at *5 (D. Vt. Aug.
29, 2012). Indeed, the Commissioner’s regulations expressly identify “daily activities” as
a factor the ALJ should consider in evaluating the intensity and persistence of a claimant’s
symptoms. 20 C.F.R. § 416.929(c)(3)(i).
In considering activities of daily living, “[t]he issue is not whether the clinical and
objective findings are consistent with an inability to perform all substantial activity, but
whether plaintiff’s statements about the intensity, persistence, or functionally limiting
effects of his symptoms are consistent with the objective medical and other evidence.”
Morris v. Comm’r of Soc. Sec., No. 5:12-CV-1795 MAD/CFH, 2014 WL 1451996, at *6
(N.D.N.Y. Apr. 14, 2014). The ALJ’s comparing of Plaintiff’s activities of daily living to
restrictions set forth in medical opinions is appropriate. Rusin v. Berryhill, 726 F. App’x
837, 840-41 (2d Cir. 2018) (finding it proper for ALJ to consider activities of daily living
when evaluating medical opinion evidence and claimant's testimony in determining RFC);
Lakesha R. v. Comm’r of Soc. Sec., No. 5:23-CV-00918 (AMN/ML), 2024 WL 3649904,
at *10 (N.D.N.Y. June 11, 2024) (“At their most basic, the amended regulations require
that the ALJ explain her findings regarding the supportability and consistency for each of
the medical opinions, pointing to specific evidence in the record supporting those findings.
. . . The ALJ did so here, by evaluating each physician’s own narrative, the broader
treatment record, and Plaintiff’s activities of daily living against the opined limitations.”
(internal quotations and citations omitted)), report and recommendation adopted, 2024 WL
3517733 (N.D.N.Y. July 24, 2024). Accordingly, remand is not required on this basis.

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CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings (Dkt. 9) is granted, and Plaintiff’s motion for judgment on the pleadings (Dkt. 5)
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: August 28, 2024
Rochester, New York

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