Batease v. Commissioner of Social Security

Filing 15

OPINION AND ORDER: The Court DENIES Plaintiff's 12 MOTION for Order Reversing the Decision of the Commissioner and GRANTS Defendant's 13 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 3/24/2017. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Michelle Batease,
Plaintiff,
v.

Civil Action No. 2:16-cv-133-jmc

Nancy A. Berryhill, Acting
Commissioner of Social Security1,
Defendant.
OPINION AND ORDER
(Docs. 12, 13)
Plaintiff Michelle Batease brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and remand of the decision of the Commissioner of
Social Security denying her applications for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI). Pending before the Court are Batease’s motion to
reverse the Commissioner’s decision (Doc. 12), and the Commissioner’s motion to affirm
the same (Doc. 13). For the reasons stated below, Batease’s motion is DENIED, and the
Commissioner’s motion is GRANTED.
Background
Batease was 36 years old on her alleged disability onset date of October 1, 2008.
She completed school through the ninth grade and does not have a GED. Her job history
consists of working as a dishwasher/kitchen helper, a fast-food worker, a parking lot

1

The Court has amended the caption to reflect the current Acting Commissioner of Social
Security, who assumed office on January 20, 2017. See Fed. R. Civ. P. 25(d).

attendant at a ski resort, a factory worker, and a cashier at Kmart. She has four children
who ranged in age from 17 to 23 on September 30, 2014, the date of the administrative
hearing in this matter. She also had a son who died in 1995 at the age of six, when he was
hit by a car.
Batease was in an abusive marriage for many years: the couple were together for
10 years, separated for five, and then back together for another eight, until they divorced in
2012. (See AR 744, 850, 870.) Batease’s living situation has varied over the years. In
April 2010, she was living with her 17-year-old son, her young adult daughter, and her
daughter’s boyfriend; Batease reported that they “f[au]ght with each other constantly”
(AR 744) and there was a lot of stress in the household (AR 726). In January 2013,
Batease was living in an apartment with her boyfriend and daughter. (AR 852.) In April
of the same year, she was living with her mother and step-father. (AR 865–66, 871.) And
in September 2014, she was living with her 21-year-old son and her boyfriend of over four
years. (AR 49–50.) Batease does not have a driver’s license, as it is “under suspension”
due to her failure to pay tickets for violations. (AR 50.)
Batease suffers from back pain, heart problems, carpal tunnel syndrome (CTS),
temporomandibular joint disorders (TMJ), right shoulder pain, and depression. In
April 2013, she told an examining psychological consultant that her depression and anxiety
began when her son was killed in 1995, and that she attempted suicide by cutting her
wrists five times since 2011. (AR 871; see also AR 855.) Batease testified at the
September 2014 administrative hearing that, on a typical day, she sits at home and plays
games on the computer, lays down with a heating pad on her back, sits in a chair, does

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dishes (for no more than 10 minutes at a time), and watches television. (AR 71–72, 74, 78;
see also AR 866, 872.) She further testified that she has no friends and does not see family
members often. (AR 72.) She stated that she had been close with her mother, but she
passed away prior to the hearing. (Id.; see also AR 66.)
On January 24, 2013, Batease protectively filed applications for DIB and SSI,
alleging that she has been unable to work due to her heart problems, major depressive
disorder, chronic back pain, TMJ, CTS, “[h]istory of cutting and suicidal,” and “[n]o
spleen.” (AR 306.) She explained that her back “hurts all the time” (AR 327); she can
hardly walk when she gets up in the morning (id.); and she has chest pain and shortness of
breath (AR 328). Regarding her depression and anxiety, Batease explained that she cries
and thinks about cutting herself “all the time” (AR 327), and that she gets really hot and
has a hard time breathing when she goes out in public (AR 328).
Batease’s application was denied initially and upon reconsideration, and she timely
requested an administrative hearing. The hearing was conducted on September 30, 2014
by Administrative Law Judge (ALJ) Paul Martin. (AR 44–103.) Batease appeared and
testified, and was represented by an attorney. A vocational expert (VE) also testified at the
hearing. On January 7, 2015, the ALJ issued a decision finding that Batease was not
disabled under the Social Security Act at any time from her alleged onset date through the
date of the decision. (AR 16–30.) Thereafter, the Appeals Council denied Batease’s
request for review, rendering the ALJ’s decision the final decision of the Commissioner.
(AR 1–3.) Having exhausted her administrative remedies, Batease filed the Complaint in
this action on May 27, 2016. (Doc. 3.)

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ALJ Decision
The Commissioner uses a five-step sequential process to evaluate disability claims.
See Butts v. Barnhart, 388 F.3d 377, 380–81 (2d Cir. 2004). The first step requires the
ALJ to determine whether the claimant is presently engaging in “substantial gainful
activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so engaged, step
two requires the ALJ to determine whether the claimant has a “severe impairment.”
20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant has a severe
impairment, the third step requires the ALJ to make a determination as to whether that
impairment “meets or equals” an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d). The claimant is
presumptively disabled if his or her impairment meets or equals a listed impairment.
Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the ALJ is required to determine the
claimant’s residual functional capacity (RFC), which means the most the claimant can still
do despite his or her mental and physical limitations based on all the relevant medical and
other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e),
416.945(a)(1). The fourth step requires the ALJ to consider whether the claimant’s RFC
precludes the performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f),
416.920(f). Finally, at the fifth step, the ALJ determines whether the claimant can do “any
other work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant bears the burden of
proving his or her case at steps one through four, Butts, 388 F.3d at 383; and at step five,
there is a “limited burden shift to the Commissioner” to “show that there is work in the

4

national economy that the claimant can do,” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.
2009) (clarifying that the burden shift to the Commissioner at step five is limited, and the
Commissioner “need not provide additional evidence of the claimant’s [RFC]”).
Employing this sequential analysis, ALJ Martin first determined that Batease had
not engaged in substantial gainful activity since her alleged onset date of October 1, 2008.
(AR 18.) At step two, the ALJ found that Batease had the following severe impairments:
sciatica, CTS, and depression. (Id.) Conversely, the ALJ found that Batease’s TMJ and
right shoulder pain were non-severe. (AR 19–20.) At step three, the ALJ found that none
of Batease’s impairments, alone or in combination, met or medically equaled a listed
impairment. (AR 20.)
Next, the ALJ determined that Batease had the RFC to perform light work, as
defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), with the following additional limitations:
[She can] lift[] 20 pounds occasionally and 10 pounds frequently; stand[] and
walk[] four hours in an eight[-]hour workday; sit[] six hours in an eight-hour
workday; occasionally climb[] ramps, stairs, ladders, ropes, and scaffolds;
frequently kneel[]; [and] occasionally crouch[] and crawl[]. She is limited to
frequent bilateral fingering for up to 20 minutes at a time before requiring a
break. She must avoid fast-paced production requirements as well as complex
tasks. She can maintain concentration, persistence, and pace for two[-]hour[]
blocks; understand, remember, and carry out one[-]to[-]three[-]step tasks in a
standard production pace setting; and make simple decisions. She can interact
briefly on routine matters with the public, coworkers, and supervisors. She
can adapt to routine workplace changes and travel. She must avoid hazards.
(AR 22.) Comparing this RFC with the physical and mental demands of Batease’s past
relevant work, the ALJ found that Batease was able to perform her past work as a fast-food
worker, a parking lot attendant, and a cashier. (AR 29–30.) The ALJ concluded that

5

Batease had not been under a disability from her alleged disability onset date of October 1,
2008 through the date of the decision. (AR 30.)
Standard of Review
The Social Security Act defines the term “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A
person will be found disabled only if it is determined that his “impairments are of such
severity that he is not only unable to do his previous work[,] but cannot, considering his
age, education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
In considering a Commissioner’s disability decision, the court “review[s] the
administrative record de novo to determine whether there is substantial evidence
supporting the . . . decision and whether the Commissioner applied the correct legal
standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater,
221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court’s factual review of
the Commissioner’s decision is thus limited to determining whether “substantial evidence”
exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923
F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)
(“Where there is substantial evidence to support either position, the determination is one to
be made by the factfinder.”). “Substantial evidence” is more than a mere scintilla; it
means such relevant evidence as a reasonable mind might accept as adequate to support a

6

conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Poupore, 566 F.3d at 305.
In its deliberations, the court should bear in mind that the Social Security Act is “a
remedial statute to be broadly construed and liberally applied.” Dousewicz v. Harris, 646
F.2d 771, 773 (2d Cir. 1981).
Analysis
Batease argues that the ALJ’s step-four finding that she can return to her past
relevant work is not supported by substantial evidence because the ALJ improperly
weighed the medical source opinions and thus assigned an inaccurate RFC determination
to Batease. The Commissioner responds that the ALJ’s evaluation of the medical opinions
was proper, and substantial evidence supports the ALJ’s RFC determination. For the
following reasons, the Court finds in favor of the Commissioner.
Batease asserts that the ALJ should have given controlling weight to at least one of
the opinions of her treating primary care physician, Michael Scovner, MD, who began
treating Batease in August 2007 or earlier. (Doc. 12 at 4–5; see AR 415.) In April 2010,
Dr. Scovner opined in forms completed for “Reach Up Financial Assistance” that Batease
could stand for only up to three hours, sit for only up to three hours, and lift only
10–20 pounds. (See AR 507, 524.) Dr. Scovner stated that Batease was very depressed
and unable to participate in work-related activities for at least the next three months; and
he recommended that Batease apply for social security disability benefits. (Id.)
In September 2014, Dr. Scovner opined in a “Treating Source Statement - Physical”
that, due to her physical problems including severe lower back pain, Batease is only able
to: lift 10 pounds for one hour per day, carry 10 pounds for 30 minutes per day, reach for

7

15 minutes per day, and push/pull for 15 minutes per day with her right hand and one hour
per day with her left hand. (AR 1295–97.) Dr. Scovner further opined that Batease: is
able to stand/walk for only one hour in an eight-hour day; must be allowed to shift
positions at will from sitting, standing, and walking throughout the day; and requires a
five-minute unscheduled break every hour. (AR 1296–97.) Dr. Scovner concluded that
Batease would miss more than four days of work each month as a result of her physical
impairments. (AR 1300.) Also in September 2014, Dr. Scovner completed an assessment
of Batease’s mental abilities, opining that she is “[s]eriously limited” in many areas of
mental functioning, including maintaining attention, maintaining attendance, and working
in coordination with or proximity to others. (AR 1301.) Dr. Scovner further opined that
Batease would miss more than four days of work per month due to her mental
impairments.2 (AR 1302.)
Dr. Scovner regularly treated Batease for at least seven years. He is thus a “treating
physician,” as defined in the regulations, and the ALJ was required to evaluate his opinions
under the “treating physician rule.” See Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d
Cir. 1983); Schisler v. Bowen, 851 F.2d 43, 46 (2d Cir. 1988) (“A claimant’s treating
source is his or her own physician, . . . who has provided the [claimant] with medical
treatment or evaluation and who has or had an ongoing treatment and physician-patient
relationship with the individual.”). Under that rule, an ALJ must give “controlling weight”
to the opinions of a treating physician if those opinions are “well[]supported by medically

2

In seeming contradiction to this opinion on Batease’s mental limitations, in his “Treating Source
Statement - Physical,” Dr. Scovner checked a box indicating that “emotional or psychological factors” did
not “contribute to the severity of [Batease’s] symptoms and functional limitations.” (AR 1298.)

8

acceptable clinical and laboratory diagnostic techniques” and “not inconsistent with the
other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2); see Halloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Schisler v. Sullivan, 3 F.3d 563, 567–69 (2d
Cir. 1993). Here, the ALJ gave “little weight” to Dr. Scovner’s opinions for the following
stated reason: “the limitations cited in Dr. Scovner’s assessment contrast sharply with the
other evidence of record, including his own [treatment] notes, as well as the reports from
consultative examiners and specialists.” (AR 28 (emphasis added).) In other words, the
ALJ found that Dr. Scovner’s opinions are inconsistent with other substantial evidence in
the record and thus not worthy of “controlling weight.” This analysis clearly applied “the
correct legal standard,” Machadio, 276 F.3d at 108, as quoted above from the applicable
regulation, 20 C.F.R. § 404.1527(c)(2). Thus, assuming the ALJ’s finding that
Dr. Scovner’s opinions are inconsistent with other substantial evidence is itself supported
by substantial evidence (discussed in detail below), the ALJ made no error in declining to
afford controlling weight to Dr. Scovner’s opinions. See Halloran, 362 F.3d at 32 (“[T]he
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, such as the opinions of other medical experts.”); Veino v. Barnhart, 312 F.3d 578,
588 (2d Cir. 2002) (“While the opinions of a treating physician deserve special respect,
they need not be given controlling weight where they are contradicted by other substantial
evidence in the record.” (citations omitted)).
Where, as here, the ALJ does not afford controlling weight to the opinions of a
treating physician, the ALJ must consider various “factors” to determine how much weight

9

to give the opinions. 20 C.F.R. § 404.1527(c). Among those factors are: the frequency of
examination and the length, nature, and extent of the treatment relationship; the evidence
in support of the treating physician’s opinion; the consistency of the opinion with the
record as a whole; whether the opinion is from a specialist; and other factors that tend to
support or contradict the opinion. Id. The regulations also specify that the Commissioner
“will always give good reasons” for the weight given to a treating source’s opinions. Id. at
§ 404.1527(c)(2); see also Schaal v. Apfel, 134 F.3d 496, 503, 505 (2d Cir. 1998)
(Commissioner must give “good reasons” for the lack of weight attributed to treating
physician’s opinions). Here, the ALJ gave a good reason to afford “little weight” to
Dr. Scovner’s opinions: they are inconsistent (“contrast sharply with”) the other record
evidence (AR 28). See 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent an
opinion is with the record as a whole, the more weight we will give to that opinion.”).
Of course, this rationale is legally sufficient only if it is supported by “substantial
evidence,” which the Second Circuit defines as “more than a mere scintilla” and “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) (internal quotation marks omitted).3
The Court finds that substantial evidence does in fact support the ALJ’s rationale. For
example, as the ALJ noted in his decision, treatment notes from the relevant period
indicate that Batease had full range of her upper extremities with no muscle atrophy or

3

The “substantial evidence” standard is “a very deferential standard of review—even more so than
the ‘clearly erroneous’ standard. The substantial evidence standard means once an ALJ finds facts, [the
district court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.”
Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) (citation and internal quotation marks
omitted).

10

joint swelling. (AR 25, 426, 867.) And an MRI of Batease’s lumbar spine showed mild
degenerative disc disease but no disc herniation or other remarkable findings. (AR 25,
423, 431; see also AR 913 (x-rays of spine showing “a fairly well-aligned lumbar spine”).)
Overall, the treatment notes demonstrate that, although Batease had some pain and reduced
range of motion in her back,4 she was neurologically intact and had good overall alignment
of the lumbar spine, normal strength, full range of motion, and an intact gait. (See, e.g.,
AR 25, 370, 423, 452–53, 469, 482, 485, 518, 610, 690, 739, 770, 867, 883, 913–14, 996,
1122.) These treatment notes, which are principally based on treating and consulting
medical professionals’ physical examinations of Batease, do not support the extreme
physical limitations that Dr. Scovner opined Batease suffered from.
Regarding Batease’s manipulative and pushing/pulling/reaching limitations, the
evidence demonstrates that after her 2008 and 2014 bilateral carpal tunnel release
surgeries, her symptoms mostly resolved and she had improved range of motion and good
grip strength and sensation with no atrophy or tenderness in her hands. (See, e.g., AR
426–27, 581, 800–01, 867, 996, 1158–59.) In May 2008 for example, treatment notes
from Dr. Ann Stein state that, since her April 2008 carpal tunnel release, Batease “has been
doing quite well and has had nice resolution of her symptoms.” (AR 581.) Dr. Stein
recommended a “gradual increase in activity” and estimated that Batease “should be able
to return to work by June 9, 2008.” (Id.) The record does not demonstrate that Batease

4

After examining Batease, medical consultant Dr. Luther Emerson found that “[t]he prognosis of
[Batease’s] back pain depends on whether she seeks therapy for it.” (AR 868.)

11

had the significant pushing/pulling/reaching limitations opined by Dr. Scovner (see AR
1297).
The record similarly does not support the extreme mental limitations that
Dr. Scovner opined Batease had. For example, as the ALJ noted, although Batease
reported being depressed, isolating herself in her room, and cutting herself on several
occasions in an attempt to commit suicide (see, e.g., AR 452, 518, 871), her mental
examinations were mostly normal, consistently showing that she had normal thoughts,
related adequately with others, and was cooperative and socially appropriate (AR 26, 29,
872). Notably, she earned a score of 30 out of 30 on the Mini Mental Status Examination,
a test used to measure cognitive impairment. (AR 872.) The record also reveals that
Batease had normal speech and concentration and intact memory; and that she was futureoriented and showed no signs of severe depression. (See, e.g., AR 469, 482, 729–30, 741,
854.) For example, an April 2010 hospital note states that, upon her discharge after a
three-day voluntary admission to the psychiatric unit following a suicide attempt, Batease
“had no suicidal ideation, intent, or plan[,] [and] “was future[-]oriented, bright, and
without any significant depression.” (AR 741.) Batease herself stated in a January 2013
Function Report that she was independent in her activities of daily living, could follow
written and spoken instructions, and got along well with authority figures. (AR 283–88;
see also AR 738.) The Commissioner correctly points out that basic communication like
this is all that is needed to do unskilled work, and the ability to hear and understand simple
oral instructions or to communicate simple information is sufficient. (Doc. 13 at 6 (citing

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SSR 96-9P, 1996 WL 374185, at *8 (July 2, 1996); SSR 85–15, 1985 WL 56857, at *4
(1985)).)
The treatment records, including those of Dr. Scovner himself, simply do not
support the extreme limitations outlined in Dr. Scovner’s opinions. The ALJ accurately
stated:
Despite [Batease’s] complaints and [alleged] inability to work [due to]
physical and mental problems, her own inconsistent statements and the
medical record support the conclusion that her functional capacity is not as
limited [as she alleges]; she can engage in activities not indicative of a person
who is completely disabled.
(AR 23.) Of note, the ALJ reasonably questioned Batease’s credibility (AR 23–24), and
Batease has not persuasively refuted that finding. Furthermore, Dr. Scovner’s opinions are
inconsistent with those of nonexamining agency consultant Dr. Patricia Pisanelli, who
opined that Batease could occasionally lift and/or carry 20 pounds, frequently lift and/or
carry 10 pounds, stand and/or walk for four hours, and sit for about six hours in an eighthour workday. (AR 112, 127.) Although the opinions of treating physicians are generally
given more weight than those of nonexamining agency consultants, the regulations permit
the opinions of agency consultants to override those of treating physicians, when the
former are more consistent with the record evidence than the latter. See Diaz v. Shalala,
59 F.3d 307, 313 n.5 (2d Cir. 1995) (citing Schisler, 3 F.3d at 567–68 (“[T]he regulations .
. . permit the opinions of nonexamining sources to override treating sources’ opinions
provided they are supported by evidence in the record.”)); see also SSR 96-6p, 1996 WL
374180, at *3 (“In appropriate circumstances, opinions from State agency . . .
consultants . . . may be entitled to greater weight than the opinions of treating or examining

13

sources.”). Here, the opinions of agency consultant Dr. Pisanelli are more consistent with
the record than those of treating physician Dr. Scovner, as discussed above. And no
treating physician other than Dr. Scovner offered an opinion regarding Batease’s ability to
work. (See Doc. 14 at 3.)
Batease accurately points out in her Reply that the ALJ did not specifically discuss
the opinions of Dr. Pisanelli in his decision. (See Doc. 14 at 3.) This error was harmless,
however, given that Dr. Pisanelli’s opinions are largely consistent with and duplicative of
the findings contained in the ALJ’s RFC determination, and the ALJ’s decision would not
have been different had he explicitly discussed those opinions. See Gonzalez v. Colvin,
No. 15 Civ. 5011 (KPF), 2016 WL 6780000, at *16 (S.D.N.Y. Nov. 16, 2016) (citing
Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (ALJ’s failure to consider even a
treating physician’s report could be harmless error if there was “no reasonable likelihood”
that considering it would have changed the disability determination)). Batease also points
out that the ALJ did not discuss nonexamining agency consultant Dr. Ellen Atkins’s
opinion that Batease could perform only simple tasks “in [a] low production norm setting”
(AR 114, 129). (See Doc. 12 at 8, Doc. 14 at 3.) But again, this error was harmless,
because the ALJ’s decision would not have been different had he considered this opinion,
given that substantial evidence supports the ALJ’s finding that Batease could perform
work “in a standard production pace setting” (AR 22) (see, e.g., AR 26, 29, 287, 469, 482,
729–30, 741, 854, 872). See Lynch v. Astrue, No. 07–CV–249–JTC, 2008 WL 3413899, at
*5 (W.D.N.Y. Aug. 8, 2008) (“ALJ’s failure to refer to [agency consultant’s] reports is, at
best, harmless error, since consideration of the information contained in the reports would

14

not have changed the outcome of the hearing determination.”); Walzer v. Chater, No. 93
Civ. 6240 (LAK), 1995 WL 791963, at *9 (S.D.N.Y. Sept. 26, 1995) (“ALJ’s failure to
[discuss treating physician’s report] was harmless error, since his written consideration of
[the] report would not have changed the outcome of the ALJ’s decision.”).5
Batease claims the ALJ erred in failing to consider the factors laid out in 20 C.F.R.
§ 404.1527(c) when assessing the weight of Dr. Scovner’s opinions (Doc. 12 at 5–6), and
in failing to assign a weight to several medical opinions including those of the agency
consultants (id. at 7–8), as noted above. It has been repeatedly held, however, that the ALJ
need not explicitly discuss each of the regulatory factors; rather, he or she must apply “the
substance of the treating physician rule.” Halloran, 362 F.3d at 32; see Atwater v. Astrue,
512 F. App’x 67, 70 (2d Cir. 2013) (“We [do not] require . . . slavish recitation of each and
every factor where the ALJ’s reasoning and adherence to the regulation are clear.”). As
discussed above, the ALJ here fully reviewed the record evidence (including Dr. Scovner’s
own treatment notes, which did not substantially support his opinions); stated the weight
given to Dr. Scovner’s opinions (AR 28), see Schisler, 3 F.3d at 567 (ALJ required to
articulate weight given to treating doctors’ conclusions), recognizing the lengthy treatment
relationship Dr. Scovner had with Batease (AR 24); and evaluated those opinions in light
of their consistency with the rest of the record evidence, as required by the applicable

5

In general, “remand is unnecessary, even if the ALJ ignores a treating physician’s opinion, when
the opinion is essentially duplicative of evidence considered by the ALJ, and the report the ALJ overlooked
was not significantly more favorable to the plaintiff.” Seekins v. Astrue, Civil No. 3:11CV00264(VLB)
(TPS), 2012 WL 4471266, at *5 (D. Conn. Aug. 14, 2012) (citing Zabala, 595 F.3d at 409–10). “Where
discussion of an omitted medical report ‘would not have changed the outcome of the ALJ’s decision,’ such
omission constitutes ‘harmless error.’” Dombrowski v. Astrue, No. 5:12–cv–638 (GLS), 2013 WL 528456,
at *3 (N.D.N.Y. Feb. 11, 2013) (quoting Walzer, 1995 WL 791963, at *9).

15

regulation. Thus, the ALJ followed the substance of the treating physician rule, and his
decision to give “little weight” to Dr. Scovner’s opinions should not be disturbed.
Batease further argues that the ALJ erred in failing to articulate the weight given to
the opinions of medical professionals other than Dr. Scovner.6 (Doc. 12 at 7.) Batease
claims this failure makes it “impossible for a reviewing court to ascertain how the ALJ
derived the RFC.” (Id.) But no law is cited in support of this argument (see id.), and ALJs
are not required to explicitly assign weight to all medical opinions of record, particularly
those of consulting (rather than treating) medical sources, as long as the ALJ considered
the relevant medical opinions. See Berry v. Comm’r of Soc. Sec., No. 14 Civ. 3977(KPF),
2015 WL 4557374, at *14–15 (S.D.N.Y. July 29, 2015) (“an ALJ’s failure to state
expressly the weight given to the opinion of a consultative source does not require
reversal, so long as the ALJ took the evaluation into account in determining a claimant’s
RFC”); Rodriguez v. Colvin, No. 12–cv–3931 (RJS)(RLE), 2014 WL 5038410, at *6
(S.D.N.Y. Sept. 29, 2014) (declining to remand where ALJ considered a consultative
examiner’s assessment in determining plaintiff’s RFC, but failed to “assign a specific,
quantifiable weight” to the opinion); see also Hamilton v. Astrue, No. 12–CV–6291P, 2013
WL 5474210, at *16–17 (W.D.N.Y. Sept. 30, 2013). Here, although the ALJ did not
specify the weight he gave to the opinions of examining consultants/providers Dr.
Matthew Zmurko, Dr. Luther Emerson, and Marc Carpenter, MA, he did engage in a
detailed discussion of those opinions, as well as their examination/treatment notes, in his

6

It bears repeating here that no treating physician, other than Dr. Scovner, offered an opinion
regarding Batease’s ability to work.

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decision. (See AR 24–29; see also AR 422–23, 865–69, 870–73, 913.) Moreover, as the
ALJ noted, those opinions mostly support the ALJ’s RFC determination. For example,
Dr. Zmurko, who opined on Batease’s physical impairments, recommended merely
“conservative” treatment “with some physical therapy and . . . [an] aerobic exercise
program.” (AR 423; see also AR 913 (“[m]y recommendation was to treat this in a
conservative manner, restarting some physical therapy”).) Dr. Emerson, who also
evaluated Batease’s physical limitations, stated that the prognosis of her back pain
depended on whether she sought therapy for it, and vaguely opined that she could sit for
“at least” six hours and stand/walk for “at least” two hours per day. (AR 868.) And
Carpenter, who saw Batease for a “psychological diagnostic interview” (AR 870), did not
make findings on the severity of Batease’s mental impairments, other than to state that her
mental health symptoms “seem to significantly impact her daily activities, interests, and
ability to relate to people.” (AR 873.) Carpenter concluded his report by diagnosing
Batease with major depressive disorder and generalized anxiety, and noting that Batease
had other, non-medical problems, including “[p]roblems with [her] primary support group,
problems related to the social environment, occupational problems, [and] economic
problems.” (AR 873.)
Batease argues that the ALJ erred in noting that Carpenter’s consultative
examination report referenced Batease’s “lack of motivation” (AR 29). (See Doc. 12 at 9.)
But in fact, Carpenter stated in his report that Batease did not attend group counseling
despite her medical provider’s advice to do so, which may fairly be read to indicate
Batease’s lack of motivation to obtain appropriate treatment, even despite her

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rationalization that she could not attend group counseling because she “does not do well in
groups.”7 (AR 872.) It was not error for the ALJ to consider this evidence. The
regulations provide that if a claimant does not “follow the prescribed treatment without a
good reason,” he or she is not considered disabled. 20 C.F.R. § 404.1530(b); see
Calabrese v. Astrue, 358 F. App’x 274, 277–78 (2d Cir. 2009) (failure to take medication
as prescribed an appropriate factor to consider in assessing claimant’s credibility); Holley
v. Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001) (proper for ALJ to use evidence of
claimant’s noncompliance to weigh credibility of claimant’s subjective claims of pain).
Finally, Batease contends that the ALJ “substituted his judgment of the medical
evidence for the treating physician’s opinion[s]” (Doc. 12 at 6), and made his own medical
conclusions to support his RFC determination. (See Doc. 12 at 6–9; Doc. 14 at 2–5.)
ALJs cannot arbitrarily substitute their own judgment for competent medical opinion. See
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“[W]hile an [ALJ] is free to resolve
issues of credibility as to lay testimony or to choose between properly submitted medical
opinions, he is not free to set his own expertise against that of a physician who [submitted
an opinion to or] testified before him.” (alterations in original) (internal quotation marks
omitted)). But that is not what the ALJ did here: as discussed above, the ALJ’s decision—
which is supported by substantial evidence—demonstrates that the RFC determination was
not based on the ALJ’s own judgment of the medical evidence, but rather on the medical
evidence itself, on the opinions of various consulting medical professionals, and on the

7

At the administrative hearing, Batease stated that she did not want to attend group therapy
because she is “not comfortable around a bunch of people,” and she “[did not] want the whole world to
know [her] problems.” (AR 67.)

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record as a whole. See Credle v. Astrue, No. 10–CV–5624 (DLI), 2012 WL 4174889, at
*18 (E.D.N.Y. Sept. 19, 2012) (“[T]he Social Security Administration considers the data
that physicians provide but draws [his or her] own conclusions as to whether those data
indicate disability. A treating physician’s statement that the claimant is disabled cannot
itself be determinative.” (quoting Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)).
Batease’s remaining arguments—regarding the ALJ’s findings on Batease’s
postural limitations (stooping and balancing in particular) and her need to avoid hazards
(see Doc. 12 at 8–9)—lack merit, as they are unsupported by either legal authority or
substantial evidence in the record.
Conclusion
For these reasons, the Court DENIES Batease’s motion (Doc. 12), GRANTS the
Commissioner’s motion (Doc. 13), and AFFIRMS the decision of the Commissioner.
Dated at Burlington, in the District of Vermont, this 24th day of March, 2017.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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