Allen v. Commissioner of Social Security

Filing 14

OPINION AND ORDER denying 8 MOTION for Order Reversing the Decision of the Commissioner; granting 12 MOTION for Order Affirming the Decision of the Commissioner. Signed by Chief District Judge Christina Reiss on 3/6/2025. (law)

:11~f 0ts TRtc r COURT

RI.., T OF VERHONl
F"ILE:D

_,
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JENNIFER A.,
Plaintiff,
V.

LELAND DUDEK,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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ll!SNAR-7 ~H 9:ZI
CLERK

BY . ljw
DEPUTY CLERK -

Case No. 2:24-cv-619

OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR AN ORDER
REVERSING THE DECISION OF THE COMMISSIONER AND GRANTING
THE COMMISSIONER'S MOTION TO AFFIRM
(Docs. 8 & 12)
Plaintiff Jennifer A. Allen is a claimant for Supplemental Security Income ("SSI")
payments under the Social Security Act ("SSA") and brings this action pursuant to 42
U.S.C. § 405(g) to reverse the decision of the Social Security Commissioner (the
"Commissioner") that she is not disabled. 1 (Doc. 8.) The Commissioner moves to affirm.
(Doc. 12.) The court took the pending motions under advisement on November 12, 2024.
Plaintiff is represented by Elaine T. Bodurtha, Esq. Special Assistant United States
Attorneys Jason P. Peck and Vernon Norwood represent the Commissioner.

I.

Procedural History.
Plaintiff filed her application for SSI on September 6, 2017, alleging disability

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Disability is defined 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
[twelve] months[.]" 42 U.S.C. §§ 423(d)(l)(A), 1382c(a)(3)(A). A claimant's "physical or
mental impairment or impairments" must be "of such severity" that the claimant is not only
unable to do any previous work but cannot, considering the claimant's 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), 1382c(a)(3)(B).

beginning February 1, 2017, based on fibromyalgia, degenerative disk disease, celiac
disease, post-traumatic stress disorder ("PTSD"), anxiety, major depressive disorder,
polyarthralgia, sleep apnea, near syncope, and possible postural orthostatic tachycardia
syndrome. (Doc. 5-1 at 233.) After her claim and request for reconsideration was denied,
Plaintiff timely filed a request for a hearing, which was held before Administrative Law
Judge ("ALJ") Joshua Menard on November 1, 2018. Plaintiff appeared by videoconference and was represented by counsel. She testified, as did Vocational Expert
("VE") Christine Spaulding. ALJ Menard determined that medical expert testimony
would be needed and continued the hearing to May 14, 2019, at which time he heard
testimony from psychological expert Bill Hughes, medical expert Peter Shosha, and VE
Louis Leplant.
On June 5, 2019, ALJ Menard issued an unfavorable decision, which Plaintiff
administratively appealed. The Appeals Council denied review on April 7, 2020, and
Plaintiff filed a Complaint in this court on May 29, 2020. Jennifer A. v. Comm 'r ofSoc.

Sec., No. 2:20-cv-79 (D. Vt. May 29, 2020). On October 19, 2020, Plaintiff filed a
motion to reverse the Commissioner's decision, and on November 13, 2020, the
Commissioner filed a consented-to motion to reverse his decision pursuant to sentence
four of 42 U.S.C. § 405(g). The court granted the Commissioner's motion on November
16, 2020, and instructed the case to be remanded for further proceedings. On January 15,
2021, the Appeals Council issued an order remanding the case and directing that a
subsequent claim for SSI Plaintiff filed on June 2, 2020, be consolidated with the
remanded case. The Appeals Council's January 15, 2021 order instructed the ALJ to, on
remand, "[f]urther evaluate the severity of the [Plaintiffs] fibromyalgia and De
Quervain's tenosynovitis[,]" "[g]ive further consideration to the [Plaintiffs] maximum
residual functional capacity [('RFC')] and provide appropriate rationale[,]" and "identify
and obtain reasonable explanations for any conflicts between [VE] evidence and
information in the [Dictionary of Occupational Titles ('DOT').]" (Doc. 5-1 at 1108.)
After a remand hearing was held on July 22, 2021, ALJ Menard issued an
unfavorable decision on August 4, 2021, in which he found Plaintiffs fibromyalgia was
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not a medically determinable impairment. After his decision became final, Plaintiff again
filed a Complaint in this court. On May 25, 2022, Plaintiff filed a motion to reverse the
Commissioner's decision, and on July 22, 2022, the Commissioner filed a motion for
entry of judgment to reverse his decision and remand for a new hearing. Plaintiff opposed
the motion because it only addressed one of several errors she alleged. On August 25,
2022, the court granted the Commissioner's motion. Jennifer A. v. Comm 'r ofSoc. Sec.,
No. 2:21-cv-00242 (D. Vt. Aug. 25, 2022). The Appeals Council issued an order on April
17, 2023, remanding the case for a new hearing and assigning it to a new ALJ. The April
17, 2023 Order (the "Remand Order") stated that ALJ Menard's 2021 decision did not
comply with the Appeals Council's previous order to evaluate the severity of the
Plaintiffs fibromyalgia and instructed the ALJ, on remand, to "[f]urther evaluate the
[Plaintiffs] severe and non-severe impairments ... [s]pecifically considering the severity
of the [Plaintiffs] fibromyalgia in accordance with Social Security Ruling 12-2p." (Doc.
5-1 at 1920.)
On February 27, 2024, a hearing was held by video before ALJ Dory Sutker.
Plaintiff appeared and was represented by counsel. Both Plaintiff and VE Elizabeth
Laflamme testified. On April 1, 2024, ALJ Sutker issued an unfavorable decision, which
became the final decision of the Commissioner on June 1, 2024. Plaintiff has appealed
that order to this court.

II.

ALJ Sutker's April 1, 2024 Decision.
Plaintiff was forty years old at the onset date of her alleged disability. The ALJ

found that Plaintiff has a limited education and had not engaged in substantial gainful
activity since the alleged onset of her disability. She has no past relevant work.
In order to receive SSI under the SSA, a claimant must be disabled on or before
the claimant's date last insured. A five-step, sequential-evaluation framework determines
whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a [RFC]
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assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are significant
numbers of jobs in the national economy that the claimant can perform
given the claimant's residual functional capacity, age, education, and work
experience.

McIntyre v. Colvin, 758 FJd 146, 150 (2d Cir. 2014) (citing 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)).
"The claimant has the general burden of proving that he or she has a disability
within the meaning of the Act, and bears the burden of proving his or her case at [S]teps
[O]ne through [F]our of the sequential five-step framework established in the SSA
regulations[.]" Burgess v. Astrue, 537 FJd 117, 128 (2d Cir. 2008) (internal quotation
marks and citation omitted). At Step Five, "the burden shifts to the Commissioner to
show there is other work that [the plaintiff] can perform." McIntyre, 758 FJd at 150
(alterations adopted) (internal quotation marks omitted).
At Step One, ALJ Sutker found that Plaintiff had not engaged in substantial
activity since the alleged onset of disability. At Step Two, she concluded that Plaintiff
had the following severe impairments: degenerative disk disease, degenerative joint
disease, fibromyalgia, carpal tunnel syndrome, obesity, major depressive disorder, and
PTSD. In addition to these severe impairments, ALJ Sutker found Plaintiff suffered from
obstructive sleep apnea, gastroesophageal reflux disease, irritable bowel syndrome, celiac
disease, vision disorder, headaches, and tachycardia, but concluded that these conditions
had "no more than a minimal effect on the [Plaintiffs] ability to meet the basic demands
of work activity." (Doc. 5-1 at 1930.)
At Step Three, ALJ Sutker determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the
Listings. With regard to her non-mental impairments, including obesity, the ALJ
concluded that Plaintiff did not meet or equal the severity requirements of Listings 1.15,
1.18, 11.14, or 14.09 because there was no evidence of, among other things, "documented
medical need for a walker, bilateral canes, or bilateral crutches or a wheeled and seated
mobility device involving the use of both hands[,]" "the requisite disorganization of

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motor function in two extremities," or "inflammation or deformity in one or more major
joints of an upper or a lower extremity with involvement of two or more organs/body
systems[.]" Id. at 1931.
Regarding Plaintiffs mental impairments, ALJ Sutker found that Plaintiff had
moderate limitations in four areas of mental functioning: (1) understanding,
remembering, or applying information; (2) interacting with others; (3) concentrating,
persisting, or maintaining pace; and (4) adapting or managing herself. The ALJ
concluded that the severity of Plaintiffs mental impairments did not meet or medically
equal the criteria of Listings 12.02 and 12.15. In doing so, she found that the "paragraph
B" criteria were not satisfied because Plaintiffs mental impairments did not "result in
one extreme limitation or two marked limitations in a broad area of functioning." Id. at
1932. The ALJ also found that the "paragraph C" criteria of Listings 12.02, 12.04, 12.06,
and 12.15 were not satisfied because there was no evidence of a:
medically documented history of the existence of the disorder over a period
of [two] years, and ... evidence of both: (1) Medical treatment, mental
health therapy, psychosocial support(s), or a highly structured setting(s)
that is ongoing and that diminishes the symptoms and signs of [the] mental
disorder; and (2) Marginal adjustment, that is ... minimal capacity to adapt
to changes in [Plaintiffs] environment or to demands that are not already
part of [Plaintiffs] daily life.
Id. at 1933-34.

At Step Four, ALJ Sutker determined Plaintiff had the RFC to:
lift up to twenty pounds occasionally and ten pounds frequently. She can
stand and walk for four hours in an eight-hour workday. She can sit for six
hours in an eight-hour workday. The [Plaintiff] would need to change
position for an aggregate of three to five minutes per hour. The [Plaintiff]
cannot climb ladders, ropes[,] or scaffolds. She can frequently balance, and
all other postural activities can be performed on an occasional basis. She
can frequently finger and feel. The [Plaintiff] can never be exposed to
extreme cold or excessive vibrations, such as hand-held power tools. The
[Plaintiff] can understand, remember, and carry out simple instructions and
perform simple tasks. She needs an environment with no high production
norms such as strictly timed tasks or belt work, such as that found on a
factory assembly line. The [Plaintiff] can have occasional brief interaction
with the general public, and can interact with coworkers and supervisors on

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routine matters. Within a setting of simple tasks, the [Plaintiff] can adapt to
routine changes. She can maintain concentration, persistence[,] and pace for
two-hour blocks of time throughout the workday, consistent with regularly
scheduled breaks and lunch.
Id. at 1934.

At Plaintiffs hearing, ALJ Sutker asked the VE hypothetical questions about the
jobs available to a person of Plaintiffs age and education level, with no past relevant
work, and the same RFC excluding the limitations that Plaintiff can finger and feel
frequently as well as a requirement that she needs to change position for an aggregate of
three to five minutes per hour. The VE opined that this individual could work as a mail
sorter, price marker, and electronics assembler. When asked specifically about sedentary
jobs, the VE testified that work as a document preparer, escort driver, or surveillance
system monitor would also be available. The VE affirmed her answers would not change
if the hypothetical included a limitation that the person needed to change position for an
aggregate of three to five minutes each hour. The ALJ asked if the VE's answers would
change if the person were limited to reaching overhead on an occasional basis or reaching
in all directions on an occasional basis, and the VE answered no to the first limitation but
yes to the latter.
The VE further opined that a person off task for more than ten percent of the
workday or absent from work at least twice a month would be precluded from substantial
gainful activity on a competitive basis. Plaintiffs attorney asked the VE if the jobs she
described in response to the ALJ's hypothetical questions would still be available to a
person "limited to occasional use of the left hand for handling[,]" and the VE answered
"no," stating "[t]hese are in my opinion bilateral required jobs[,]" but answered that a
person limited to frequent use of the left hand could do these jobs. Id. at 1851. When
asked if work supervisors generally have "knowledge of dealing with someone with
PTSD[,]" the VE said she did not know the answer. (Doc. 5-1 at 1852.) Plaintiffs
attorney also asked about employers' tolerance for unscheduled breaks, and the VE
answered that unscheduled breaks lasting longer than six minutes and taking place more
than "a couple of times a day" would "[m]ost likely" pose a problem. Id. at 1853-54.

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Considering Plaintiffs age, education, work experience, and RFC, ALJ Sutker
determined at Step Five that jobs exist in significant numbers in the national economy
which Plaintiff could perform, including mail sorter (approximately 90,000 jobs
nationally), price marker (approximately 60,000 jobs nationally), and electronics
assembler (approximately 13,000 jobs nationally). As a result, ALJ Sutker concluded
Plaintiff was not disabled.

III.

Conclusions of Law and Analysis.
A.

Standard of Review.

In reviewing the Commissioner's decision, the court "conduct[s] a plenary review
of the administrative record to determine if there is substantial evidence, considering the
record as a whole, to support the Commissioner's decision and if the correct legal
standards have been applied." Cichocki v. Astrue, 729 F.3d 172, 175-76 (2d Cir. 2013)
(citation and internal quotation marks omitted). Substantial evidence is "more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Selian v. Astrue, 708 F.3d 409,417 (2d Cir. 2013)
(internal quotation marks omitted).
It is the Commissioner who resolves evidentiary conflicts, and the court "should
not substitute its judgment for that of the Commissioner." Yancey v. Apfel, 145 F.3d 106,
111 (2d Cir. 1998); see also Aponte v. Sec'y, Dep't ofHealth & Hum. Servs. of US., 728
F.2d 588, 591 (2d Cir. 1984) (noting "genuine conflicts in the medical evidence are for
the Secretary to resolve"). Even if the court could draw different conclusions after an
independent review of the record, the court must uphold the Commissioner's decision
when it is supported by substantial evidence and when the proper legal principles have
been applied. See 42 U.S.C. § 405(g); McIntyre, 758 F.3d at 149 ("If evidence is
susceptible to more than one rational interpretation, the Commissioner's conclusion must
be upheld.").
The court does not defer to the Commissioner's decision "[w]here an error oflaw
has been made that might have affected the disposition of the case[.]" Pollard v. Halter,
377 F.3d 183, 189 (2d Cir. 2004) (internal quotation marks omitted) (first alteration in
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original). "Even if the Commissioner's decision is supported by substantial evidence,
legal error alone can be enough to overturn the ALJ's decision." Jason F. v. O'Malley,
2024 WL 1756547, at *4 (D. Vt. Apr. 23, 2024) (internal quotation marks omitted)
(quoting Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y. 2009)).

B.

Whether the ALJ Legally Erred in Evaluating Plaintiff's
Fibromyalgia.

Although ALJ Sutker determined Plaintiffs fibromyalgia was a severe
impairment, Plaintiff argues that the ALJ' s analysis of her fibromyalgia symptoms was
inconsistent with Social Security Ruling 12-2p ("SSR 12-2p") and thus violated the
Remand Order's directive to "consider[] the severity of the [Plaintiffs] fibromyalgia in
accordance with Social Security Ruling 12-2p." (Doc. 5-1 at 1920.) According to
Plaintiff, the ALJ failed to properly include her fibromyalgia symptoms in her RFC
finding and focused on imaging studies and diagnostic testing, which contravenes case
law stating that fibromyalgia impairments may not manifest in test results. The
Commissioner counters that the ALJ's evaluation of Plaintiffs fibromyalgia was
supported by substantial evidence.
An ALJ "shall take any action that is ordered by the Appeals Council and may
take any additional action that is not inconsistent with the Appeals Council's remand
order." 20 C.F .R. § 404.977(b ). "The failure of an ALJ to abide by the directives in an
Appeals Council remand order constitutes legal error requiring remand." White v. Saul,
414 F. Supp. 3d 377, 381 (W.D.N.Y. 2019); see also Susan B. v. Comm 'r ofSoc. Sec.,
515 F. Supp. 3d 225, 234 (D. Vt. 2021) (same); Ellis v. Colvin, 29 F. Supp. 3d 288, 299
(W.D.N.Y. 2014) (same). A remand order, however, does not necessarily require a
different disability determination. See Hayden B. v. Comm 'r ofSoc. Sec., 2:23-cv-197 (D.
Vt. Oct. 17, 2024) (affirming ALJ's second decision denying disability benefits after this
court remanded the case).
SSR 12-2p describes the evidence needed to establish fibromyalgia as a medically
determinable impairment. SSR 12-2p, 2012 WL 3104869 (July 25, 2012). It states that
"[b]ecause the symptoms and signs of [fibromyalgia] may vary in severity over time and

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may even be absent on some days, it is important that the medical source who conducts
the [consultative examination] has access to longitudinal information about the person."
Id. at *5. Regarding the RFC assessment, it explains that "[f]or a person with

[fibromyalgia], we will consider a longitudinal record whenever possible because the
symptoms of [fibromyalgia] can wax and wane so that a person may have 'bad days and
good days."' Id. at *6. The Second Circuit has recognized "that 'there are no objective
tests which can conclusively confirm the disease."' Green-Younger v. Barnhart, 335 F.3d
99, 108 (2d. Cir. 2003) (quoting Preston v. Sec. ofHealth and Hum. Servs., 854 F.2d 815,
818 (6th Cir.1988)). Courts in the Second Circuit have thus held that "denying a
fibromyalgia-claimant' s claim of disability based in part on a perceived lack of objective
evidence is reversible error." Campbell v. Colvin, 2015 WL 73763, at *6 (N.D.N.Y. Jan.
6, 2015); see also John P. v. Comm 'r ofSoc. Sec., 2023 WL 5738448, at *7 (W.D.N.Y.
Sept. 5, 2023) (remanding where ALJ "erroneously placed undue emphasis on the lack of
objective evidence in contravention of the guidance provided by the regulations").
Plaintiff was diagnosed with fibromyalgia on January 4, 2012, by rheumatologist
Douglas Dier, M.D., who noted "[ d]iffuse tenderness ... at the lateral epicondyles
posterior neck paraspinal musculature over the greater trochanters and medial knees" as
well as subjective symptoms of "[p]ersistent discomfort" and "[s]leeping poorly[.]" (Doc.
5-1 at 2483.) He prescribed Plaintifftrazodone in addition to the naproxen and Valium
she was taking. During a March 30, 2015 appointment, Plaintiff reported to Dr. Dier
"persistent generalized aching and sleeping poorly at night." Id. at 2484. She stated she
had started taking amitriptyline and was experiencing short-term memory difficulties as a
side effect. She refused another provider's suggestion to increase the dose. She also
reported receiving a lum~ar epidural injection that had increased her pain. Dr. Dier
assessed Plaintiff as experiencing "[o]ngoing chronic pain" with "[n]o evidence for
underlying inflammatory disease" and recommended that she increase her amitriptyline
dose and "remain as physically active as possible despite the discomfort." Id.
A September 27, 2016 medical source statement from Arabella Bull-Stewart, DO,
Plaintiffs treating pain management doctor, stated that Plaintiff had eighteen "positive
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trigger points characteristic of fibromyalgia[.]" Id. at 2488. A January 11, 2017 treatment
note from Susan Dumas, APRN, Plaintiffs primary care provider, noted Plaintiffs
fibromyalgia diagnosis and indicated that on that day she had "18/18 positive tender
points." Id. at 528. ALJ Sutker acknowledged Plaintiffs fibromyalgia diagnoses but
noted that "physical examinations performed since the application date have not revealed
the number or location of trigger points consistent with that impairment[.]" Id. at 1938.
Despite this observation, ALJ Sutker factored Plaintiffs fibromyalgia into her RFC by
limiting her to "stand and walk for four hours in an eight-hour workday with the ability to
change position for an[] aggregate of three to five minutes per hour" because of her
"degenerative dis[k] disease, degenerative joint disease and fibromyalgia[.]" (Doc. 5-1 at
1940-41.)
On July 13, 2018, Dr. Joseph Phillips, M.D., Ph.D., evaluated Plaintiff to address
her chronic pain. He noted that Plaintiff presented with "pain in the neck with
predominantly radiation into the left arm as well as low back pain with radiation into the
buttock and posterior thigh." Id. at 780. Upon examination, Dr. Phillips found Plaintiff
had "no hyperreflexia, no Hoffman's reflexes[,]" "full strength in her shoulders, biceps,
triceps, and hands and grips[,]" "no loss of strength" in the lower extremities, and
"[s]ensation ... diminished subjectively on the left arm compared with the right." Id. at
780. Dr. Phillips treated Plaintiff on September 18, 2018, and concluded that additional
testing was needed to assess the type of surgery that would be helpful for her.
Dr. Phillips performed a "C4/5, C5/6, C6/7 anterior discectomy, osteophyte
removal, allograft fusion, and interbody fixation with Chesapeake" on Plaintiff in
October 2019. Id. at 24. Notes from a postoperative visit on February 25, 2020 state that
"[ o]ne of [Plaintiffs] biggest preoperative complaints was headaches, particularly on the
left side, and she says that for the most part that's gone[.]" Id. at 1491. Plaintiff continued
to have issues with neck pain, although she "overall seem[ ed] to have had or at least is
having improvements[.]" Id. The ALJ's decision noted this improvement but
acknowledged "the [Plaintiffs] musculoskeletal symptoms have not completely
resolved" after various treatments. (Doc. 5-1 at 1938.)
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On September 24, 2020, Plaintiff underwent a consultative exam by Tarryn
Schneider, PA-C, as part of the determination of her disability claim. Plaintiff reported
that due to her fibromyalgia, "her entire body hurts her on a daily basis." Id. at 1567. She
stated that she could not wear a bra or clothes with tags on them because they caused her
pain, wearing her hair up gave her a headache, rolling over at night caused her "extreme
pain[,]" and she was taking cyclobenzaprine and melatonin to sleep at night, although the
medication "d[id] not help her to stay asleep for very long." Id. at 1567. Upon
examination, PA Schneider described Plaintiff as "pleasant" and "in mild distress." Id. at
1569. She observed Plaintiff "ambulate[d] with a normal heel-to-toe gait[,]" was "slow to
get on and off the examination table[,]" was "able to perform fine and gross motor
tasks[,]" and was "not able to reproduce fatigue of motor function on repetitive activity."
Id. at 1570. Examination of Plaintiffs spine revealed "tenderness to palpation of the

cervical spinous processes and paraspinal musculature as well as lumbar spinous
processes and paraspinal musculature." Id. at 1570. Plaintiff exhibited full range of
motion of her upper extremity and lower extremity joints, with pain noted in the shoulder
and low back with hip range of motion tests. Strength of her upper and lower extremity
joints was generally 5/5, except for her triceps, wrist flexion, wrist extension, and hip
flexion, which PA Schneider rated 4/5. PA Schneider also noted "tenderness to palpation
of both the left and right trapezius muscle and into the shoulder" as well as the abdomen.
(Doc. 5-1 at 1570.)
State agency medical consultant Dr. Leslie Abramson reviewed the medical
evidence for the period from June 2, 2020, to October 14, 2020 and concluded that "due
to spine pathology[,] fibromyalgia[,] and polyarthralgias, with chronic pain, fatigue, and
other symptomatology as noted, exacerbated by obesity," Plaintiff was limited to lifting
or carrying twenty pounds occasionally and ten pounds frequently, walking and standing
for six hours, and sitting for six hours in an eight-hour workday. Id. at 1099.
Plaintiff treated with Dr. Bull-Stewart throughout the disability determination
period, although she saw Dr. Bull-Stewart on November 16, 2020, for the first time since
May 23, 2018. Plaintiff reported that her surgery had relieved her severe headaches, but it
11

did not relieve her neck pain and she continued to experience "tightness throughout the
neck with pain and numbness to bilateral arms." Id. at 1585. Upon examination, Dr. BullStewart noted a steady gait, "4/5 in bilateral grip, 5/5 through bilateral triceps, triceps,
and deltoids[,]" and "[s]ensation ... diminished to pinprick throughout the left biceps,
deltoid, and triceps, as well as [first dorsal interosseous muscle]." Id. at 1587. Dr. BullStewart's treatment notes document Plaintiffs "visual analog pain rating" at more than
two dozen visits between 2017 and 2023, during which Plaintiff frequently rated her pain
a seven out often in various parts of her body. See, e.g., id. at 2212. In a medical source
statement dated September 12, 2023, Dr. Bull-Stewart wrote that Plaintiffs fibromyalgia
caused her to suffer from whole body muscle pain, weakness, and brain fog that limited
her mobility and activities.
In explaining why she found the limiting effects of Plaintiffs symptoms were less
severe than alleged by Plaintiff, ALJ Sutker noted that "[i]maging studies and diagnostic
testing has generally revealed relatively minimal abnormalities" and cited "the absence of
electrodiagnostic testing revealing lumbar radiculopathy" as a reason for not finding
more restrictive limitations based on Plaintiffs degenerative disk disease, degenerative
joint disease, and fibromyalgia. Id. at 1936, 1941. The ALJ also stated that "[p]hysical
examinations performed since the application date have not revealed abnormalities
consistent with an inability to engage in substantial gainful activity." (Doc. 5-1 at 1937 .)
Citing Green-Younger, Plaintiff argues that such objective findings "have no bearing on
the severity of fibromyalgia and do nothing to justify the ALJ's conclusion that
[Plaintiffs] symptoms of fibromyalgia are not consistent with the evidence." (Doc. 8 at
7.)
Green-Younger holds that an ALJ errs by requiring "'objective' evidence" to find
disability based on fibromyalgia, "a disease that eludes such measurement." 335 F.3d at
I 08. "[T]his does not preclude the ALJ from considering a lack of objective evidence in
connection with h[ er] assessment of a [plaintiffs] fibromyalgia." Serena B. v. Comm 'r of
Soc. Sec., 2024 WL 3822808, at *6 (W.D.N.Y. Aug. 15, 2024). Courts have found no
legal error where an ALJ considered objective evidence as well as subjective complaints
12

when assessing the RFC of a plaintiff with fibromyalgia symptoms. See, e.g., Ange/is G.
v. Kijakazi, 2023 WL 4540437, at *6 (D. Conn. July 14, 2023) (finding no error because
ALJ "'followed the steps set forth in' [SSR] 12-2p by 'properly consider[ing] more than
just the objective evidence."') (emphasis and alteration in original) (quoting Christine
MR. v. Saul, 2021 WL 129415, at *20 (D. Conn. Jan. 14, 2021)); Lynn C. v. Comm'r of
Soc. Sec., 2023 WL 4082351, at *6 (W.D.N.Y. June 20, 2023) (finding no error because
"the ALJ did not require objective medical evidence of fibromyalgia to corroborate
[plaintiffs] complaints; instead, he looked to other evidence to evaluate whether those
complaints accurately related her condition").
In this case, the ALJ followed the Remand Order's directive to evaluate the
severity of Plaintiffs fibromyalgia and deemed it a severe impairment. ALJ Sutker also
factored Plaintiffs fibromyalgia into her RFC by limiting Plaintiff "to stand and walk for
four hours in an eight-hour workday with the ability to change position for an[] aggregate
of three to five minutes per hour." (Doc. 5-1 at 1940-41.) Insofar as the ALJ found
certain fibromyalgia symptoms less disabling than Plaintiff claimed, she considered the
fact that Plaintiff presented full or mildly reduced strength and intact sensation over the
course of"multiple examinations[.]'' Id. at 1941. For example, the ALJ cited treatment
notes spanning years showing Plaintiff had full range of motion and mildly reduced or
full strength, and no issue with gait. See, e.g., id. at 1658-59 (March 30, 2021 treatment
notes describing Plaintiffs strength as "5/5 in bilateral upper and lower extremities" and
tandem gait as "intact"); id. at 626 (October 12, 2017 treatment notes describing Plaintiff
as having "full range of motion of the elbow, wrist, and digits"). This accords with SSR
12-2P's directive that an ALJ "consider a longitudinal record whenever possible because
the symptoms of [fibromyalgia] can wax and wane[.]" 2012 WL 3104869, at *6.
Consistent with SSR 12-2P, the ALJ also considered "all of the evidence in the
case record," including Plaintiffs improvement after surgery and other treatments and
treatment notes describing Plaintiff as being in no apparent or acute distress, which the
ALJ concluded undermined Plaintiffs subjective complaints of pain. Id. at *5 (explaining
that "[i]f objective medical evidence does not substantiate" plaintiffs symptoms, the ALJ
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considers "all of the evidence in the case record, including ... medications or other
treatments the person uses, or has used, to alleviate symptoms ... and statements by
other people about the person's symptoms"). Although Plaintiff disagrees with the ALJ's
conclusions regarding the treatment notes, "this is not a case where the ALJ discounted
Plaintiffs complaints of pain from her fibromyalgia solely based on objective medical
evidence." Serena B., 2024 WL 3822808, at *7. ALJ Sutker therefore did not commit
reversible legal error in evaluating Plaintiffs fibromyalgia symptoms.

C.

Whether Substantial Evidence Supports the ALJ's Conclusion that Dr.
Bull-Stewart's Opinions Regarding Plaintiff's Physical Limitations
Were Largely Unpersuasive.

Plaintiff argues that the ALJ erred in finding Dr. Bull-Stewart's opinions not well
supported or consistent with other evidence in the record. She contends that if weighed
properly, Dr. Bull-Stewart's findings indicate that Plaintiffs "ability to perform the full
range of sedentary work is significantly eroded, such that she is disabled[.]" (Doc. 8 at
10.) Plaintiff does not contest that it is the ALJ's sole prerogative to make the disability
determination. See Nora A. v. Comm 'r ofSoc. Sec., 551 F. Supp. 3d 85, 93 (W.D.N.Y.
2021) ("It is well-established that 'the ultimate issue of disability is reserved for the
Commissioner."') (quoting Taylor v. Barnhart, 83 F. App'x 347, 349 (2d Cir. 2003)).
"When making a determination of disability, an ALJ must consider all of the
available evidence in the individual's case record, including the opinions of medical
sources." Karen S. v. Comm 'r of Soc. Sec., 2020 WL 4670911, at *13 (D. Vt. Aug. 11,
2020) (internal quotation marks, alteration, and citation omitted). An ALJ must articulate
how they considered medical opinions and prior administrative findings, as well as how
persuasive they found them. 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b).

An ALJ "will not defer or give any specific evidentiary weight ... to any medical
opinion(s) or prior administrative medical finding(s), including those from [the
claimant's] medical sources." Id. §§ 404.1520c(a), 416.920c(a). Instead, an ALJ must
consider each medical opinion or prior administrative finding in the record and evaluate
its persuasiveness in accordance with five factors: (1) supportability; (2) consistency;

14

(3) relationship with the claimant (including: (i) length of treatment relationship,
(ii) frequency of examinations, (iii) purpose of treatment relationship, (iv) extent of
treatment relationship, (v) examining relationship); (4) specialization; and (5) other
factors that tend to support or contradict a medical opinion or prior administrative
medical finding. See id. §§ 404.1520c(c), 416.920c(c).
The factors of supportability and consistency "are the most important factors [an
ALJ] consider[ s]" when determining the persuasiveness of a medical opinion. Id.
§§ 404.1520c(b)(2), 416.920c(b)(2). An ALJ must therefore articulate how he or she
considered the supportability and consistency of a medical opinion and may, but need
not, address the remaining three factors. Id. Supportability refers to "how well a medical
source supported and explained [his or her] opinion[,]" and "consistency is an allencompassing inquiry focused on how well a medical source is supported, or not
supported, by the entire record." Vellone ex rel. Vellone v. Saul, 2021 WL 319354, at *6
(S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 2021 WL 2801138
(S.D.N.Y. July 6, 2021). "[W]hen the record contains competing medical opinions, it is
the role of the Commissioner to resolve such conflicts." Diana C. v. Comm 'r ofSoc. Sec.,
2022 WL 1912397, at *7 (S.D.N.Y. Apr. 11, 2022) (citing Veino v. Barnhart, 312 F.3d
578, 588 (2d Cir. 2002)).
In addition to treating Plaintiff during the relevant period, Dr. Bull-Stewart
completed two medical source statements between the onset date of Plaintiffs alleged
disability and the date of ALJ Sutker's decision. 2 On September 19, 2018, Dr. BullStewart opined that Plaintiff could lift and carry up to ten pounds occasionally due to her
"pain, weakness[,] and numbness" and could sit or stand for ten to fifteen minutes at a
time and walk for five to ten minutes at a time due to "low back [and] leg pain and
cramping[.]" (Doc. 5-1 at 784-85.) She stated Plaintiff could reach overhead and handle
2

Dr. Bull-Stewart prepared a third medical source statement dated September 27, 2016, which
the ALJ found "unpersuasive as it was prepared prior to the alleged onset date and the
application date, and it does not address the [Plaintiffs] impairments or functioning during the
relevant period at issue." (Doc. 5-1 at 1943.) Plaintiff mentions the September 27, 2016
statement but does not contest the ALJ' s reason for not considering it.

15

frequently, finger and feel occasionally, and never push or pull with the right hand, and
that she could not perform any of these activities with the left hand except for occasional
overhead reaching. Dr. Bull-Stewart opined that Plaintiff could operate foot controls
frequently with her right foot and occasionally with her left foot; occasionally climb
stairs and ramps, balance, stoop, and crouch; and never climb ladders or scaffolds, kneel,
or crawl. She found that Plaintiff could never tolerate unprotected heights; moving
mechanical parts; humidity and wetness; dust, odors, fumes, and pulmonary irritants;
extreme cold or heat; or vibrations and could occasionally tolerate operating a motor
vehicle. She indicated that Plaintiff could not "walk a block at a reasonable pace on rough
or uneven surfaces[.]" Id. at 788-89.
In her medical source statement dated September 12, 2023, Dr. Bull-Stewart
identified diagnoses of fibromyalgia, lumbar spondylosis and left radiculopathy, left pain
with labral tears and cam deformity, cervical spondylosis and stenosis, and shoulder pain.
She opined that Plaintiff could lift or carry one pound frequently and less than ten pounds
occasionally and stand or walk for five to ten minutes at a time due to "pain and
weakness." Id. at 2409. Regarding how long Plaintiff could stand or walk over an eighthour day, Dr. Bull-Stewart did not provide a number but noted that Plaintiff would be
"constantly having to change position due to pain." Id. In response to the question "Does
[Plaintiff] continue to suffer from fibromyalgia, and if so, does this disorder contribute to
her functional imitations?" Dr. Bull-Stewart answered, "Yes. Her whole body muscle
pain and weakness with foggy-headedness ('Brain fog') impact and limit her mobility,
activities[,] and quality of life." Id. at 2408. She further opined that Plaintiff could
occasionally reach overhead and in front with both hands, occasionally handle or finger
with her right hand, and never handle or finger with her left hand due to "pain,
weakness[,] and numbness[.]" Id. at 2409. Dr. Bull-Stewart stated Plaintiff "would likely
miss work [ninety to ninety-five percent] of the time" and noted headaches and knee pain
as "additional limitations that might interfere with [Plaintiffs] ability to work." (Doc. 5-1
at 2410.)

16

ALJ Sutker found Dr. Bull-Stewart's opinions "to be largely unpersuasive"
because they "are not supported by significant narrative explanation or description of
clinical or diagnostic findings." Id. at 1943. The ALJ acknowledged that Dr. Bull-Stewart
referenced·pain, weakness, numbness, cramping, and brain fog in support of Plaintiff's
limitations but concluded that "medical records in evidence do not support the extreme
limitations assessed by Dr. Bull-Stewart, and findings on imaging studies, diagnostic
testing, and physical and mental status examinations are inconsistent with Dr. BullStewart's opinion." Id. ALJ Sutker noted that despite reports of incapacitating pain,
Plaintiff was described as being "in no distress or no acute/apparent distress ... on
numerous examinations," findings of numbness were not consistent across different
examinations, "electrodiagnostic testing revealed only mild carpal tunnel syndrome," and
Plaintiff was able to perform fine and gross motor tasks in her consultative examination
with PA Schneider. 3 Id. She further noted that, "inconsistent with Dr. Bull-Stewart's
opinion[,]" Plaintiff's strength was described as mildly reduced or normal in multiple
examinations and that the results of Plaintiff's mental status examinations, which
generally described average intellectual function and only mildly impaired memory, were
"inconsistent with incapacitating brain fog." Id.
Plaintiff argues that the ALJ cherry-picked the medical record for examples of
improved strength or sensation, ignoring that fibromyalgia symptoms "can wax and wane
so that a person may have 'bad days and good days[,]"' (Doc. 8 at 9), and inappropriately
relied on objective evidence to find inconsistencies between the record and Dr. BullStewart's opinions. J.B. v. Saul, 2022 WL 4103017, at *7 (D. Vt. Feb. 2, 2022) (quoting
SSR 12-2p); see also John P., 2023 WL 5738448 at *7 (explaining that "[w]hen
determining an RFC based on fibromyalgia, the ALJ is not entitled to rely solely on
objective evidence-or lack thereof-related to fibromyalgia") (alteration in original)
(internal quotation marks omitted) (quoting Ian S. v. Comm 'r ofSoc. Sec., 2021 WL
3

Although the ALJ refers to a "consultative examination performed in October of 2022," the
exhibit she cites corresponds to PA Schneider's Consultative Exam Medical Report, which was
dictated on October 9, 2020. (Doc. 5-1 at 1941.)

17

3292203, at *3 (W.D.N.Y. Aug. 2, 2021)). While "it is error for an ALJ to doubt the
credibility of claimant with fibromyalgia based solely on a 'relative lack of physical
abnormalities' or normal physical exam results[,]" an ALJ does not necessarily err by
"referenc[ing] exam findings ... in the context of evaluating the severity of [p]laintiff s
symptoms." Darnise C. v. Comm'rofSoc. Sec., 2022 WL 896762, at *9, *11 (W.D.N.Y.
Mar. 28, 2022).
In this case, the ALJ did not solely rely on objective evidence such as diagnostic
testing and physical examinations when she discounted Dr. Bull-Stewart's opinions, nor
did she cherry-pick the record. Because an ALJ is permitted to discount a medical
opinion if "it is brief, conclusory, and inadequately supported by clinical findings[,]" ALJ
Sutker was permitted to find Dr. Bull-Stewart's opinions less persuasive because of their
lack of explanation and because they suggested extreme limitations not endorsed by
Plaintiffs other treatment providers. Carpenter v. Astrue, 2011 WL 3951623, at *5 (D.
Vt. Sept. 7, 2011). Other than referencing Plaintiffs subjective complaints, Dr. BullStewart's opinions do not explain her rationale for concluding that Plaintiff could never
handle or finger with her left hand and that she would miss work ninety to ninety-five
percent of the time.
As Plaintiff points out, the record also includes "extensive clinical notes" from Dr.
Bull-Stewart that document Plaintiffs self-reported pain levels at various visits over
multiple years. (Doc 8. at 12.) However, ALJ Sutker found Plaintiffs subjective reports
of pain not entirely credible because despite Plaintiffs complaints of "incapacitating
pain[,]" the treatment providers who examined her almost always described her as being
in "no distress or no acute/apparent distress[.]" 4 (Doc. 5-1 at 1943.) See Pezzo v. Kijakazi,
2022 WL 2315635, at *6 (D. Conn. June 28, 2022) (finding RFC supported by substantial
evidence where "the ALJ observed that despite [p]laintiffs allegations of severe pain and
other symptoms, [p]laintiffwas consistently described by his treating professionals as in

4

See, e.g., Doc. 5-1 at 19 (describing Plaintiff as in "no acute distress" on November 13, 2019);
id. at 1658 (describing Plaintiff as in "no distress" on March 30, 2021); id. at 2399 (describing
Plaintiff as in "no acute distress" on August 5, 2023).

18

'no distress,' 'no acute distress[,]' or 'no apparent distress' throughout the medical
records"); Valdez v. Colvin, 232 F. Supp. 3d 543, 557 (S.D.N.Y. 2017) (holding that
substantial evidence supported ALJ's adverse credibility finding where "as the ALJ
noted, doctors consistently found [the plaintiff] to be in no acute or apparent distress at
her appointments" despite the plaintiffs complaints of pain "everywhere") (internal
quotation marks and citation omitted); McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir.
2011) ("[The plaintiffs] complaints of disabling pain are inconsistent with repeated
observations from treating and consultative physicians that [plaintiff] was not in acute
pain or distress.").
Generally, "an ALJ [is not] required to accept a [plaintiffs] statements about the
severity and disabling effects of [his or] her fibromyalgia where there is conflicting
evidence[.]" Darnise C., 2022 WL 896762, at *10. Because the ALJ "has the opportunity
to observe witnesses' demeanor, candor, fairness, intelligence[,] and manner of testifying
... credibility findings of an ALJ are entitled to great deference and therefore can be
reversed only if they are patently unreasonable." Christina J. v. Comm 'r ofSoc. Sec., 695
F. Supp. 3d 357, 362 (W.D.N.Y. 2023) (internal quotation marks and citations omitted).
Citing Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019) and Combs v. Berryhill,
878 F.3d 642 (8th Circ. 2017), Plaintiff argues that the ALJ's reliance on notations about
Plaintiffs distress level was flawed because, without more, such notations "are entitled to
little weight." (Doc. 8 at 9.) Estrella involved the ALJ's improper reliance on Global
Assessment of Functioning scores, which are not at issue here, to accord less weight to a
doctor's opinion about the plaintiffs mental functioning. 925 F.3d at 97. In Combs, the
Eight Circuit held that the ALJ erred by finding the plaintiffs "subjective complaints of
pain not entirely credible in large part based on her treating physicians' notations that she
was in 'no acute distress' and 'had normal movement of all extremities"' after the
Commissioner conceded in her brief that the term "no acute distress" was "not of
particular significance" with regard to "a chronic condition such as [Plaintiffs]
rheumatoid arthritis." 878 F.3d at 645, 647 (alterations incorporated) (internal quotation

19

marks omitted). Although fibromyalgia is also a chronic condition, the Commissioner has
not made a similar concession in this case.
Because a diagnosis of fibromyalgia is often highly reliant on a claimant's
subjective complaints, a credibility assessment is common. See Christina J., 695 F. Supp.
3d at 365 (finding no error in ALJ's credibility assessment because it "did not rely solely
on a lack of objective medical evidence" but also considered the plaintiffs activities of
daily living). ALJ Sutker's credibility finding was supported by substantial evidence in
the record and thus cannot be disturbed. Martes v. Comm 'r ofSoc. Sec., 344 F. Supp. 3d
750, 760 (S.D.N.Y 2018) ("Here, because substantial evidence supports the ALJ's
credibility determination, it must be upheld.")
The ALJ also found Dr. Bull-Stewart's opinion less persuasive based on the
inconsistencies between her opinion that Plaintiff was impaired by brain fog when
multiple examinations found her to be at most mildly impaired in her memory and
presenting as alert and oriented with logical thoughts. Although Dr. Bull-Stewart did not
opine that Plaintiff was debilitated by brain fog alone, she listed it as one of several
symptoms impacting Plaintiffs ability to function. As the ALJ noted, this opinion was
inconsistent with record evidence that does not show any significant mental impairments.
Plaintiff notes that "the only medical opinion ALJ Sutker cited which is contrary
to those of Dr. Bull[-]Stewart" came from Dr. Abramson, who only reviewed about four
months of Plaintiffs medical records. (Doc. 8 at 15) (emphasis in original). This is
inaccurate. Dr. Phillips provided a detailed analysis of Plaintiffs MRis and generally
found they did not support Plaintiffs symptoms. PA Schneider also examined Plaintiff
and found she had normal gait, was able to perform fine and gross motor tasks, and had
full range of motion in upper and lower extremities with some pain noted, but not full
body pain as described by Dr. Bull-Stewart. Moreover, the ALJ accounted for the limited
nature of Dr. Abramson's review by noting that the opinion "was based on information
contained in the record at the time of the state agency initial determination in this case"
and finding "additional limitations" based on the "significant amount of additional
medical evidence received in the course of developing the [Plaintiffs] case for review at
20

the hearing." (Doc. 5-1 at 1940.) Cf Camille v. Colvin, 652 F. App'x 25, 28, 28 n.4 (2d.
Cir. 2016) (summary order) (finding ALJ did not err in giving "great weight" to opinion
of state agency consultant even though record contained subsequent evidence that
consultant did not have opportunity to review) (internal quotation marks omitted).
"While there may be evidence in the record that supports [the p]laintiffs
contentions as to the severity of her symptoms," the ALJ's determination must be upheld
so long as substantial evidence supports it, as "it is not the proper role of this [c]ourt to
reweigh the evidence." Sarah S. v. Kijakazi, 2022 WL 913095, at *4 (N.D.N.Y. Mar. 29,
2022). 5
Because the ALJ considered the longitudinal record and found Dr. Bull-Stewart's
opinions largely unpersuasive based not only on objective findings but also treatment
notes, the contrasting opinion of a state agency consultant, the objective test results, and
her assessment of the Plaintiffs credibility, her determination is supported by substantial
evidence and must be affirmed. See Anysha M v. Comm 'r ofSoc. Sec., 2020 WL
1955326, at *5 (N.D.N.Y. Apr. 23, 2020) (finding ALJ's decision supported by
substantial evidence where her analysis considered lack of objective findings and other
evidence, such as plaintiffs daily activities, in assessing plaintiffs fibromyalgia and
other severe impairments).

D.

Whether Substantial Evidence Supports ALJ Sutker's Conclusion that
Dr. Vail's Opinion Was Not Fully Persuasive.

Plaintiff asserts that ALJ Sutker erred in finding not fully persuasive the opinions
of Aleta Vail, Ph.D., which indicated that Plaintiff "is unable to work in the competitive
work environment without special accommodations." (Doc. 8 at 15) (emphasis in
original). The Commissioner argues that the ALJ "supportably determined" that Dr.

5

Plaintiff notes a "September 2022 lumbar MRI showing moderate to severe neuroforaminal
narrowing and dis[k] appearing to abut the exiting nerve root," and "a left hip MRI
demonstrating labral tear and cam morphology"; however, she does not cite a doctor's opinion
finding these conditions contributed to her pain and only claims these "studies are consistent
with Dr. Bull-Stewart's diagnoses of spondylosis and other disorders[.]" (Doc. 8 at 14-15.)

21

Vail's opinion was inconsistent with her treatment notes and not well explained or
supported by the evidence. (Doc. 12 at 14.)
Dr. Vail performed a single-session psychological evaluation of Plaintiff on
December 18, 2020, via Zoom in response to a referral from Plaintiffs attorney, in which
Plaintiff was interviewed in her attorney's office for evidence to support her disability
application. This evaluation took place prior to ALJ Sutker's decision. Dr. Vail noted that
Plaintiff was "open and cooperative during the assessment[,]" became "visibly tired after
two hours of testing[,]" and "seemed increasingly dejected, though she maintained her
performance level." (Doc. 5-1 at 1607.) She found Plaintiffs responses to be "valid,
reflective of her history" overall, noting that though certain validity measures "suggested
that [Plaintiff] responded in an invalid response pattern of over-reporting of
symptoms ... this response pattern is not uncommon in people with severe histories of
abuse and neglect." Id. at 1610. "In general, [Plaintiffs] cognitive functioning in terms of
memory, visual/spatial processing, and language functions [were] in the average range."

Id. at 1612. The doctor noted that Plaintiffs responses to the Trauma Symptom Inventory
"were considered valid, yet reflective of a presentation of severe symptoms[,]" and
"indicate severe depression and anxiety, intrusive experiences of flashbacks and upsetting
memories, and her attempt to avoid these experiences by suppressing or eliminating
painful thoughts and memories." Id. at 1611.
Dr. Vail opined that overall, Plaintiff "would require a job atmosphere in which
there was sensitivity to her needs for emotional safety, and ... without that, she would
not likely be able to sustain focus and regular attendance at work. Sadly, these supportive
work environments are not generally available to people with low skills and a sporadic
work history." Id. at 1613-14. She provided the following answers to questions from
Plaintiffs attorney:
1) Will [Plaintiffs] psychiatric disorders prevent her from working ...
a) so long as she had a simple, routine, repetitive job?
Based on [Plaintiff]'s work and educational history, she would be able to
perform only simple, routine, repetitive jobs. Though [Plaintiff]'s average
intelligence would have improved her ability to work at jobs with more
22

responsibility, her history of trauma and psychiatric symptoms have been
preventative.
b) with no more than occasional and brief superficial interaction with the
public?
Interaction with the public could become problematic, as her need to have
control over who she interacts with would not be available to her, causing
hypervigilance and withdrawal.
c) no more than frequent interaction with supervisors?
The success of interactions with supervisors would largely depend upon the
approach of the supervisors and their understandings about dealing with
someone with PTSD. If that understanding was missing, it is unlikely that
[Plaintiff] would be able to tolerate their interactions as they could be
experienced as intrusive and trigger reactivity on [Plaintiff]' s part.
d) no more than frequent interaction with coworkers that she is familiar
with?
This would largely depend on with whom she was working and the sense of
safety that she experienced in their presence. If the work relationships
became problematic for [Plaintiff], it is unlikely that she could tolerate
continual exposure.

Id. at 1613.
ALJ Sutker found Dr. Vail's opinion "not fully persuasive" in part because Dr.
Vail "examined the [Plaintiff] on only one occasion" and "through attorney referral and
in connection with an effort to generate evidence for the current appeal [of Plaintiffs
disability claim]." (Doc. 5-1 at 1941.) The ALJ found that Dr. Vail's opinion was
consistent with mental status examinations in the record but "did not describe specific
work-related functional limitations with respect to the [Plaintiffs] ability to interact with
the public" because it "used the undefined term 'problematic'[] without assessing specific
work-related functional limitations to give meaning to that term" and "described
characteristics of supervisors, coworkers and work environments, rather than assessing
specific work-related functional limitations or abilities of the [Plaintiff]." Id. The ALJ
further explained that
[t]o the extent that Dr. Vail's opinion implies more restrictive
limitations than those included in the determined [RFC], it is inconsistent
with other significant evidence of record. In particular, on multiple

23

examinations the [Plaintiff] was described as cooperative, pleasant, alert[,]
and/or oriented with good eye contact, an ability to follow simple
commands, intact to moderately impaired short-term memory, intact to
mildly impaired long-term memory, average intelligence, logical/normal
thoughts, and fair/ good insight and judgment.
Id.

The ALJ also found the opinion of Jemsa Sheriff, LCMHC, Plaintiffs treating
mental health provider, "largely unpersuasive." Id. at 1944. Ms. Sheriff completed a
medical source statement dated June 24, 2021, in which she confirmed that she had been
treating Plaintiff since 2018. In response to questions about how Plaintiffs disorders
impacted her ability to understand, remember, and apply information; interact with
others; maintain concentration, persistence, or pace; and regulate her emotions, control
her behavior, and maintain her well-being, Ms. Sheriff answered that the impact was
unpredictable and would vary depending on, among other things, whether Plaintiffs
PTSD symptoms were triggered. With regard to Plaintiffs ability to "interact with others
independently, appropriately, and effectively on a sustained basis[,]" Ms. Sheriff noted
Plaintiffs "mistrust and suspiciousness of others" and "difficulty in establishing
appropriate boundaries" and opined that her limitation could vary from mild to marked or
extreme "on any given day." Id. at 17 40 (emphasis in original). Ms. Sheriff concluded
that Plaintiff was "not currently capable of full-time work ... due to the unpredictability
of PTSD triggers, depression [and] anxiety levels, feelings ofunsafety, [and]
suspiciousness of others." Id. at 1744.
The ALJ found this opinion unpersuasive because it was "largely unsupported by
specific work-related functional limitations or abilities[,]" described "overly broad"
limitations, and Ms. Sheriffs treatment notes were "inconsistent with [the] unpredictable,
marked[,] or extreme functional limitations" she assessed in her medical source
statement. (Doc. 5-1 at 1944.) For example, Ms. Sheriffs treatment notes "generally
described short-term and long-term memory as intact or only mildly impaired" and
"consistently described the [Plaintiff] as fully oriented and cooperative with logical
thoughts, average or good insight and judgment, and average intelligence." Id.

24

Plaintiff was also seen by Marc D. Carpenter, a psychologist who conducted
consultative examinations on November 3, 2017, and April 23, 2018, but the ALJ did not
assign these any weight because Mr. Carpenter did not assess any work-related
limitations. At her first consultation with him, Plaintiff scored twenty-seven out of thirty
on a Mini Mental Status Examination ("MMSE") and presented as "cooperative and
socially appropriate." Id. at 608. Noting Plaintiffs "history of abuse and trauma as both a
child and an adult[,]" Mr. Carpenter diagnosed her with PTSD, persistent depressive
disorder, and adjustment disorder with anxious distress. Id. at 608.
The ALJ noted that an RFC finding that the Plaintiff can "understand, remember
and carry out simple instructions and perform simple tasks in a non-production rate
setting with occasional brief interaction with the general public, interact[] with coworkers
and supervisors on routine matters, and ... adapt to routine changes" was consistent with
Plaintiffs "noted ability to care for herself, seek out and comply with treatment for her
multiple medical impairments, prepare simple meals, clean, wash laundry, sweep, go out
alone, shop in stores, pay bills, count change, handle a savings account, and use a
checkbook/money orders." Id. at 1942.
"An ALJ bears 'the final responsibility' for making an RFC determination, and
does not necessarily need a medical opinion to do so[.]" Dawn T. Comm 'r ofSoc. Sec.,
2023 WL 3455434, at *3 (W.D.N.Y. May 15, 2023) (citation omitted); Schillo v.

Kijakazi, 31 F.4th 64, 78 (2d. Cir. 2022) ("[T]he ALJ's RFC conclusion need not
perfectly match any single medical opinion in the record, so long as it is supported by
substantial evidence."). The ALJ did not err simply because her RFC findings did not
align with a specific medical opinion. To the extent Plaintiff argues that the ALJ's
rationale for finding Dr. Vail's opinion not fully persuasive was flawed, ALJ Sutker was
entitled to find Dr. Vail's and Ms. Sheriffs opinions inconsistent with Plaintiffs
performance on mental status examinations, her lack of distress or minimal distress at
numerous appointments, and her reported activities of daily living. See Smith v. Comm 'r

ofSoc. Sec., 351 F. Supp. 3d. 270,282 (W.D.N.Y. 2018) (finding no error where ALJ
assigned provider's opinion only "some weight" because "her opinion was inconsistent
25

with her benign findings on most of her mental status examinations") (internal quotation
marks omitted); Timothy J. v. Comm 'r ofSoc. Sec., 583 F. Supp. 3d 419, 426 (W.D.N.Y.
2022) (concluding ALJ did not err by "not[ing] that [p]laintiffs reported daily activities
were inconsistent with the extreme limitations identified in some of the medical source
opinions of record").
The ALJ's RFC adopts some of the limitations in Dr. Vail's opinion by limiting
Plaintiff to simple instructions and simple tasks; occasional, brief interaction with the
general public; and interaction with coworkers and supervisors on only "routine matters."
(Doc. 5-1 at 1934.) Because "the ALJ was free to base her RFC findings on the portions
of the various medical opinions that she found persuasive, along with the other evidence
of record[,]" and because the ALJ provided valid reasons for rejecting the more extreme
limitations assessed by Dr. Vail and Ms. Sheriff, she did not err in evaluating Plaintiffs
psychological impairments. Kimberly H v. Comm 'r ofSoc. Sec., 671 F. Supp. 3d 328,
334 (W.D.N.Y. 2023).

E.

Whether the ALJ Substituted Her Own Judgment for Medical
Evidence and Failed to Consider Plaintiff's Obesity.

Plaintiff argues that because the ALJ did not find any of the medical opinions in
the record fully persuasive, the RFC lacks a supporting opinion and demonstrates that
ALJ Sutker substituted her own opinions for medical opinions. She further argues that the
ALJ erred by failing to consider the combined effects of obesity with her other
impairments.
The Second Circuit does not require an RFC to correspond with a single medical
opinion. See Schillo, 31 F.4th at 78; Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013)
(summary order) ("Although the ALJ's conclusion may not perfectly correspond with
any of the opinions of medical sources cited in h[er] decision, [s]he was entitled to weigh
all of the evidence available to make an RFC finding that was consistent with the record
as a whole."). Because the ALJ adequately explained her reasons for rejecting the
portions of medical opinions that support a more restrictive RFC and otherwise accounted
for limitations that she found to be supportable and consistent with the record, her RFC

26

determination was supported by substantial evidence. See Kimberly H, 671 F. Supp. 3d
at 334, 337 (upholding RFC finding where ALJ "adequately explained the reasons for her
assessment of [medical] opinions, including considering supportability and
consistency[,]" even though ALJ did not "accord controlling weight to any particular
medical opinion"); see also Sarah S., 2022 WL 913095, at *4 (finding that "ALJ did not
base the RFC on an impermissible interpretation of bare medical findings because she did
not wholly reject all medical opinions of record"). 6
Contrary to Plaintiffs argument, ALJ Sutker did not fail to mention obesity in the
RFC analysis. She specifically acknowledged that "[Plaintiffs] obesity likely aggravated
her symptoms, particularly with respect to her musculoskeletal pain" but found "no
evidence that it resulted in any subjective symptoms, objective signs[,] or work-related
limitations other than those already described." (Doc. 5-1 at 1940.) Plaintiff has the "duty
to prove a more restrictive RFC," and she has not identified additional limitations
attributable to her obesity. Smith v. Berryhill, 740 F. App'x 721, 726 (2d Cir. 2018)
(summary order); see also Campbell v. Astrue, 713 F. Supp. 2d 129, 142 (N.D.N.Y.
2010) (finding "adequate evidence that the ALJ considered [p]laintiffs obesity" where
ALJ found obesity to be a severe impairment, stated that he considered plaintiffs obesity
in combination with other impairments, and included physical limitations in the RFC).
Because the ALJ did not commit legal error and because her determinations were
supported by substantial evidence, the court must affirm even if it might reach a different
conclusion. See Brown v. Comm 'r ofSoc. Sec., 708 F. Supp. 3d 234,242 (E.D.N.Y.
2023) (explaining that district court cannot '"substitute its own judgment for that of the
[ALJ],' even if it would have justifiably reached a different conclusion") (alteration in
original) (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)).

In her reply brief, Plaintiff acknowledges that the Second Circuit held in Rubin v. 0 'Malley,
116 F.4th 145 (2d Cir. 2024), that it is not categorical error for an ALJ to make an RFC finding
without "a medical opinion to support her conclusions." (Doc. 13 at 7.)

6

27

CONCLUSION

For the reasons stated above, the court DENIES Plaintiffs motion for an order
reversing the decision of the Commissioner (Doc. 8) and GRANTS the Commissioner's
motion to affirm (Doc. 12).
~

SO ORDERED.

Dated at Burlington, in the District of Vermont, this _ff!__ day of March, 2025.

c:a?:2 --Christina Reiss, Chief Judge
United States District Court

28