Opinion
3:22-cv-00485-TWD
08-03-2023
SANDRA M., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
APPEARANCES: LAW OFFICES OF KENNETH HILLER, PLLC Counsel for Plaintiff OF COUNSEL: JUSTIN M. GOLDSTEIN, ESQ. KENNETH R. HILLER, ESQ. JASON P. PECK, ESQ. SOCIAL SECURITY ADMINISTRATION OFFICE OF THE GENERAL COUNSEL Counsel for Defendant
APPEARANCES:
LAW OFFICES OF KENNETH HILLER, PLLC
Counsel for Plaintiff
OF COUNSEL:
JUSTIN M. GOLDSTEIN, ESQ.
KENNETH R. HILLER, ESQ.
JASON P. PECK, ESQ.
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
Counsel for Defendant
DECISION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
Sandra M. (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Dkt. No. 1.) This case has proceeded in accordance with General Order 18 of this Court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Both parties filed briefs, which the Court treats as motions under Federal Rule of Civil Procedure 12(c) in accordance with General Order 18. (Dkt. Nos. 12, 14.) Oral argument was not heard. Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a Magistrate Judge. (Dkt. No. 6.) For the reasons discussed below, the Commissioner's decision denying Plaintiff benefits is affirmed.
I. BACKGROUND
Plaintiff was born in 1967 and has a high school education. (Administrative Transcript at 21, 234, 240.) She last worked in 2016 as a “temporary laborer” for various businesses. Id. at 240. She was also a cashier and worked in customer service for a coffee/donut shop. Id. On October 5, 2020, Plaintiff filed for DIB and SSI. Id. at 211. She alleged disability beginning January 1, 2017, due to arthritis in both knees, depression, high blood pressure, “thyroid issue,” arthritis in the right shoulder, right foot numbness, and lower back pain. Id. at 73. Her applications were initially denied on February 26, 2021, and again upon reconsideration on March 18, 2021. Id. at 13, 116, 133.
The Administrative Transcript is found at Dkt. No. 10. Citations to the Administrative Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein will be used rather than the page numbers the Court's CM/ECF electronic filing system assigns. Citations not made to the Administrative Transcript will use page numbers assigned by the Court's CM/ECF electronic filing system.
The Court notes while Plaintiff's application is dated October 5, 2020, the Plaintiff's brief, the Defendant's brief, and the ALJ's decision state Plaintiff applied for DIB and SSI on October 1, 2020. (Dkt. No. 10 at 18; Dkt. No. 12 at 1; Dkt. No. 14 at 3.)
At Plaintiff's request, Administrative Law Judge (“ALJ”) Jennifer Gale Smith conducted a telephone hearing on August 10, 2021. Id. at 13. The ALJ heard the testimony of Plaintiff, represented by a non-attorney representative, and the testimony of vocational expert (“VE”) Warren Maxim. Id. at 27-47.
On August 20, 2021, the ALJ issued a written decision finding Plaintiff was not disabled under the Social Security Act. Id. at 10. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on March 11, 2022. Id. at 1. Plaintiff timely commenced this action on May 10, 2022. (Dkt. No. 1.)
II. RELEVANT LEGAL STANDARDS
A. Standard of Review
In reviewing a final decision of the Commissioner, a court must first determine whether the correct legal standards were applied, and if so, whether substantial evidence supports the decision. Atwater v. Astrue, 512 Fed.Appx. 67, 69 (2d Cir. 2013). “Failure to apply the correct legal standards is grounds for reversal.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (internal quotation marks and citation omitted). Accordingly, a reviewing court may not affirm the ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986-87 (2d Cir. 1987).
A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). “Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Sczepanski v. Saul, 946 F.3d 152, 157 (2d Cir. 2020) (internal quotation marks and citation omitted). If the ALJ's finding as to any fact is supported by substantial evidence, it is conclusive. 42 U.S.C. Sec 405(g); Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). Furthermore, where evidence is deemed susceptible to more than one rational interpretation, the ALJ's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's findings must be sustained “even where substantial evidence may support the plaintiff's positions and despite that the court's independent analysis of the evidence may differ from the [Commissioner's].” Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). A reviewing court cannot substitute its interpretation of the administrative record in place of the Commissioner's if the record contains substantial support for the ALJ's decision. See Rutherford, 685 F.2d at 62.
When inadequacies in the ALJ's decision frustrate meaningful review of the substantial evidence inquiry, remand may be appropriate. See Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019); Pratts v. Chater, 94 F.3d, 34, 39 (2d Cir. 1996). Remand may also be appropriate where the ALJ has failed to develop the record, adequately appraise the weight or persuasive value of witness testimony, or explain his reasonings. See Klemens v. Berryhill, 703 Fed.Appx. 35, 35-38 (2d Cir. 2017); Rosa v. Callahan, 168 F.3d 72, 82 (2d Cir. 1999); Estrella, 925 F.3d at 98; Burgess v. Astrue, 537 F.3d 117, 130 (2d Cir. 2008); Pratts, 94 F.3d at 39.
While the SSI program has special economic eligibility requirements, the requirements for establishing disability under Title XVI, 42 U.S.C. § 1382c(a)(3) and Title II, 42 U.S.C. § 423(d), are identical, so “decisions under these sections are cited interchangeably.” Donato v. Sec'y of Health of Human Servs., 721 F.2d 414, 418 n.3 (2d Cir. 1983) (citation omitted).
To be considered disabled, a plaintiff seeking disability benefits must establish he or she is unable “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)(1)(A). In addition, the plaintiff's
physical or mental impairment or impairments [must be] 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he should be hired if he applied for work.42 U.S.C. § (d)(2)(A).
The Social Security Administration regulations outline a five-step process to determine 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 “residual functional capacity” 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 F.3d 146, 150 (2d Cir. 2014) (citing Burgess, 537 F.3d at 120); 20 C.F.R. § § 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). “If at any step a finding of disability or non-disability can be made, the SSA will not handle the claim further.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
The claimant bears the burden of proof regarding the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). If the claimant meets his or her burden of proof, the burden shifts to the Commissioner at the fifth step to prove the claimant is capable of working. Id.
C. Standard for ALJ Evaluation of Opinion Evidence
According to the regulations regarding the evaluation of medical evidence, the Commissioner will not “give any specific evidentiary weight to medical opinions; this includes giving controlling weight to any medical opinion.” Revisions to Rules Regarding the Evaluation of Medical Evidence (“Revisions to Rules”), 2017 WL 168819, 82 Fed.Reg. 5844, at 5867-68 (Jan. 18, 2017), see 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the Commissioner must consider all medical opinions and “evaluate their persuasiveness” based on the following five factors: supportability; consistency; relationship with the claimant; specialization; and “other factors.” 20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c).
While the ALJ is not allowed to rely on the perceived hierarchy of medical sources, defer to specific medical opinions, or assign “weight” to a medical opinion, the ALJ must still “articulate how [she] considered the medical opinions” and “how persuasive [she] find[s] all of the medical opinions.” Id. §§ 404.1520c(a) and (b)(1), 416.920c(a) and (b)(1). The two “most important factors for determining the persuasiveness of medical opinions are consistency and supportability,” which are the “same factors” forming the foundation of the treating source rule. Revisions to Rules, 2017 WL 168819, 82 Fed.Reg. 5844-01 at 5853.
An ALJ is specifically required to “explain how [he or she] considered the supportability and consistency factors” for a medical opinion. 20 C.F.R. §§ 404.1520c (b)(2), 416.920c(b)(2). With respect to supportability, the regulations provide “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” Id. §§ 404.1520c(c)(1), 416.920c(c)(1). As to the consistency factor, “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. §§ 404.1520c(c)(2), 416.920c(c)(2).
An ALJ must “‘articulate how [she] considered the medical opinions' and ‘how persuasive [she] find[s] all of the medical opinions.'” Brian O. v. Comm'r of Soc. Sec., No. 1:19-CV-983 (ATB), 2020 WL 3077009, at *4 (N.D.N.Y. June 10, 2020) (quoting 20 C.F.R. § § 404.1520c(a)-(b)(1), 416.920c(a)-(b)(1)). Furthermore, while an ALJ is specifically required to “explain how [she] considered the supportability and consistency factors,” an ALJ must consider, but need not explicitly discuss, the three remaining factors in determining the persuasiveness of a medical source's opinion. Id. §§ 404.1520c(b)(2), 416.920c(b)(2). However, where the ALJ has found two or more medical opinions to be equally well supported and consistent with the record, but not the same, the ALJ must articulate how he or she considered those factors contained in paragraphs (c)(3) through (c)(5). Id. §§ 404.1520c(b)(3), 416.920c(b)(3).
III. THE ALJ'S DECISION
The ALJ applied the five-step sequential evaluation promulgated by the Commissioner for adjudicating disability claims. (T. at 15-22.) At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the application date. Id. at 15. Proceeding to step two, the ALJ determined Plaintiff had the following severe impairments: degenerative disc disease with radiculopathy, bilateral primary arthritis of the knees, idiopathic peripheral neuropathy, and obesity. Id. At step three of the sequential evaluation, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. Id. at 17-18.
The ALJ found Plaintiff's depressive disorder to be non-severe because it did not cause more than minimal limitations in Plaintiff's ability to perform basic mental work activities. (T. at 16.)
Thereafter, the ALJ determined Plaintiff had the residual functional capacity (“RFC”) to:
perform light work as defined in 20 C.F.R. 416.967(b) except she should not work at unprotected heights or in close proximity to dangerous machinery or moving mechanical parts of equipment. She should not balance as defined in the Selected Characteristics of Occupations, kneel, crouch, crawl, or climb ladders, ropes, or scaffolds. She can occasionally stoop and climb ramps and stairs.Id. at 18.
In making the RFC determination, the ALJ considered all of Plaintiff's symptoms and the extent to which those symptoms could “reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 C.F.R. [§] 416.29 and [Social Security Ruling] 16-3p.” Id. The ALJ further stated she considered medical opinion evidence and prior administrative medical findings (“PAMFs”) pursuant to 20 C.F.R. § 404.1520c and 20 C.F.R. § 416.920(c). Id. The ALJ found Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but her allegations concerning the intensity, persistence, and limiting effects of these symptoms were not entirely consistent with the evidence as a whole and were not persuasive to the extent they were inconsistent with the RFC. Id. at 19.
Proceeding to step four of the sequential evaluation, the ALJ determined Plaintiff was incapable of performing any past relevant work based on the testimony of the impartial VE who stated the requirements of the past relevant work exceeded Plaintiff's RFC. Id. at 21. At step five, the ALJ concluded Plaintiff was capable of making a successful adjustment to other work that exists in significant numbers in the national economy. Id. Accordingly, the ALJ determined Plaintiff was not disabled, as defined by the Social Security Act, from October 1, 2020, through the date of her decision. Id. at 22.
IV. DISCUSSION
Plaintiff argues the ALJ failed to identify substantial evidence supporting the RFC and erred in her evaluation of the medical opinions. (Dkt. No. 12 at 1, 8-25.) Specifically, Plaintiff claims the ALJ did not properly apply the supportability and consistency factors to the opinions of record. Id. at 8-25. Defendant asserts the ALJ's decision denying benefits applies the correct legal standards and is supported by substantial evidence. (Dkt. No. 14 at 6-21.)
The RFC is an assessment of “the most [Plaintiff] can still do despite [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The ALJ is responsible for determining Plaintiff's RFC based on a review of relevant medical and non-medical evidence, including any statement about what Plaintiff can still do, provided by any medical sources. Id. §§ 404.1527(d), 404.1545(a)(3), 404.1546(c); 416.927(d), 416.945(a)(3), 416.946(c). Thus, the ALJ is tasked with the responsibility of reviewing all the evidence, resolving inconsistencies, and making a determination consistent with the evidence as a whole. Camarata v. Colvin, No. 6:14-CV-0578 (MAD/ATB), 2015 WL 4598811, at *9 (N.D.N.Y. July 29, 2015). Although the ALJ has the responsibility to determine the RFC based on all the evidence in the record, the burden is on Plaintiff to demonstrate functional limitations that preclude any substantial gainful activity. 20 C.F.R. §§ 404.1512(a), 404.1545(a), 404.1546(c), 416.945(a), 416.946(c). For reasons discussed herein, substantial evidence supports the ALJ's RFC.
A. The ALJ Reasonably Found Dr. Padmaraju's and Dr. Chen's Opinions to be Persuasive
Plaintiff contends the ALJ erred in her evaluation of the opinions of Drs. Padmaraju and Chen because she “provided only a conclusory application of the supportability factor and no application of the consistency factor.” (Dkt. No. 12 at 24-25.) The Court disagrees.
Dr. Padmaraju, a state agency consultant, reviewed Plaintiff's then-current medical records on February 24, 2021. (T. at 72-87.) Upon review, Dr. Padmaraju opined Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently. Id. at 82. Dr. Padmaraju noted Plaintiff could stand, walk, and sit with normal breaks for about six hours in an eight-hour workday. Id. at 82-83. Plaintiff could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds. Id. at 83. Plaintiff had no manipulative, visual, communicative, or environmental limitations. Id. Dr. Padmaraju's PAMF was affirmed on reconsideration by state agency medical consultant, Dr. Chen, on March 15, 2021. Id. at 90103.
Here, the ALJ reasonably found the opinions of Drs. Padmaraju and Chen to be persuasive in determining Plaintiff had the RFC to perform a reduced range of light work. Id. at 20. First, the ALJ considered the PAMFs and other medical opinions in the record and explained how she applied the supportability and consistency factors to these opinions. Id. at 20-21. The ALJ noted Dr. Padmaraju's and Dr. Chen's PAMFs were persuasive because they were based upon a review of relevant medical evidence and opinions and were supported by the findings set forth in the report and the objective findings cited in the report. Id. at 20. The reviewers' familiarity with the Agency's policies and evidentiary requirements also contributed to the persuasiveness of their opinions. Id. The fact that the purpose of the review was to render a medical opinion on disability using the Agency's disability evaluation criteria lent support to the persuasiveness of their opinions as well. Id.
Plaintiff argues the ALJ failed to make any findings relating to the consistency factor because she failed to identify specific evidence inconsistent with the opinion of treating physician, Dr. Khan. (Dkt. No. 12 at 17, 22-25.) However, the ALJ applied both the consistency and supportability factors when she referred to direct language and reasoning from Drs. Padmaraju and Chen and explicitly noted their opinions were “supported by the findings set forth in the report and the objective findings cited in the report.” (T. at 20.) This language is sufficient to demonstrate the ALJ considered the supportability and consistency of the opinions. See Donna N. v. Comm'r of Soc. Sec., No. 5:21-cv-01264, 2023 WL 2742076, at *9 (N.D.N.Y. Mar. 31, 2023) (ALJ properly considered the supportability factor by explaining the doctors are mental health experts and are well versed in Agency standards and evidentiary requirements and by stating their opinions are based upon reviews of relevant medical evidence and supported by detailed explanations); Justin S. v. Comm'r of Soc. Sec., No. 5:20-CV-1575 (ATB), 2022 WL 306445, at *10 (N.D.N.Y. Feb. 2, 2022) (ALJ properly gave persuasive value to a medical opinion by noting it was supported with detailed explanation, was consistent with the record as a whole, and by noting the doctor was a mental health expert well versed in agency standards and evidentiary requirements). Thus, such as here, where an ALJ's analysis “affords an adequate basis for meaningful judicial review, applies the proper legal standards, and is supported by substantial evidence such that additional analysis would be unnecessary or superfluous, . . . remand is not necessary merely because an explicit function-by-function analysis was not performed.” Cichocki v. Astrue, 729 F.3d 172, 177 (2d. Cir. 2013).
Even if the Court found the ALJ failed to explain how she considered the consistency of Dr. Padmaraju and Dr. Chen's opinions, “the ALJ's decision could still be affirmed if ‘a searching review of the record' assures us ‘that the substance of the [regulation] was not traversed.'” Wayne P. v. Kijakazi, No. 8:22-CV-653 (ATB), 2023 WL 3949877, at *9 (N.D.N.Y. June 12, 2023) (quoting Loucks v. Kijakazi, No. 21-1749, 2022 WL 2189293, at *2 (2d Cir. June 17, 2022)) (alteration in original). As set forth in the analysis, a review of the record assures the Court the substance of the regulations was not traversed. Id.
Moreover, Drs. Padmaraju and Chen did in fact cite to multiple sources throughout the medical record to support their findings regarding Plaintiff's RFC and to demonstrate their opinions' consistency with the record. For example, Drs. Padmaraju and Chen noted on August 20, 2020, Plaintiff denied any other focal or lateralizing symptoms. (T. at 84, 103, 415-16.) Her blood pressure was 130/72 and her strength was well intact throughout with no asymmetry. Id. at 84, 103, 416. Her tone was normal with no drift, and sensory sensation was reduced in a stocking distribution near the right ankle. Id. at 84, 103, 416. Plaintiff's deep tendon reflexes were +2 in the upper extremities and hypoactive in the lower extremities. Id. at 84, 103, 416. Her finger-to-nose coordination revealed no dysmetria and her gait was steady. Id. at 84, 103, 416. A February 17, 2021, right-knee x-ray showed no acute fracture or dislocation and a lumbosacral spine x-ray only showed degenerative disc disease. Id. at 84, 103, 405. Drs. Padmaraju and Chen concluded the “[i]maging of [Plaintiff's] knees did not show severe [degenerative joint disease]....” Id. at 84, 102-03. Therefore, Dr. Padmaraju's and Dr. Chen's opinions were supported by and consistent with the record.
Contrary to Plaintiff's assertion, an ALJ is entitled to rely on opinions from both examining and non-examining State agency medical consultants because these consultants are qualified experts in the field of Social Security disability. See Frye ex rel. A.O. v. Astrue, 485 Fed.Appx. 484, 487 (2d Cir. 2012) (summary order) (“The report of a State agency medical consultant constitutes expert opinion evidence which can be given weight if supported by medical evidence in the record.”); Little v. Colvin, No. 5:14-CV-0063 (MAD), 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) (“State agency physicians are qualified as experts in the evaluation of medical issues in disability claims. As such, their opinions may constitute substantial evidence if they are consistent with the record as a whole.”) (internal quotation marks and citations omitted); see also Reed v. Comm'r of Soc. Sec., No. 5:16-CV-1134, 2018 WL 1183382, at *5 (N.D.N.Y. Mar. 6, 2018) (“It is well settled that an ALJ is entitled to rely upon the opinions of both examining and non-examining State agency medical consultants, since such consultants are deemed to be qualified experts in the field of social security disability.”); Barber v. Comm'r of Soc. Sec., No. 6:15-CV-0338 (GTS/WBC), 2016 WL 4411337, at *7 (N.D.N.Y. July 22, 2016) (“It is well established that an ALJ may rely on the medical opinions provided by State agency consultants and that those opinion[s] may constitute substantial evidence.”). Here, the ALJ properly relied on the opinions of Drs. Padmaraju and Chen because they were supported by and consistent with the record.
As such, the Court finds the ALJ properly addressed the “most important” factors of consistency and supportability regarding the opinions of Drs. Padmaraju and Chen and rejects Plaintiff's contention the ALJ only did a conclusory application of the supportability factor that does not meet the required legal standard. See 20 C.F.R. §§ 404.1520c(c)93), (4); 416.920c(c)(3), (4). The Court also finds the ALJ did not err in relying on the medical opinion evidence rendered by Drs. Padmaraju and Chen. Further, for the reasons set forth above, these opinions constitute substantial evidence and remand is not warranted.
B. The ALJ Reasonably Found Dr. Jenouri's Opinion to be Partially Persuasive
Dr. Jenouri performed a consultative examination of Plaintiff on February 17, 2021. (T. at 400-03.) Plaintiff reported a history of osteoarthritis in both knees, as well as routine lower back pain. Id. at 400. Plaintiff described her low back pain and bilateral knee pain as sharp, with an intensity of 8 out of 10. Id. She further stated the pain occurred frequently and “precipitated with activity.” Id. Plaintiff reported she cooks, cleans, and showers five times a week, and dresses herself every day. Id. She also reported she does laundry and goes grocery shopping once a week. Id. Additionally, Plaintiff noted she watches TV and listens to the radio in her spare time. Id. Dr. Jenouri opined Plaintiff had mild to moderate limitations walking and standing for long periods, and for bending, stairclimbing, lifting, and carrying. Id. at 403.
Here, the ALJ reasonably found the opinion of Dr. Jenouri to be partially persuasive. The ALJ stated while Dr. Jenouri's opinion was rendered after a thorough examination of Plaintiff by a physician with extensive program and professional expertise, Plaintiff's high level of daily activities suggested she may have lesser limitations than Dr. Jenouri opined. Id. at 20, 400-01.
Plaintiff argues the ALJ did not apply the supportability and consistency factors to Dr. Jenouri's opinion and the ALJ did not give Dr. Jenouri's opinion the appropriate amount of weight. (Dkt. No. 12 at 22-24.) However, the Court finds the ALJ appropriately applied the supportability and consistency factors to Dr. Jenouri's opinion. Initially, the ALJ applied the supportability factor when she noted Dr. Jenouri's opinion was “rendered after a thorough examination of the claimant by a physician with extensive program and professional expertise.” (T. at 20.) Dr. Jenouri's opinion was supported by his own examination. Id. at 20, 400-02. As noted above, an ALJ is entitled to rely on opinions from both examining and non-examining State agency medical consultants because these consultants are qualified experts in the field of Social Security disability as long as their opinions are supported by and consistent with the record. See Frye ex rel. A.O., 485 Fed.Appx. at 487; Little, 2015 WL 1399586, at *9; see also Reed, 2018 WL 1183382, at *5; Barber, 2016 WL 4411337, at *7. The ALJ also applied the consistency factor when she found Dr. Jenouri's opinion to be only partially persuasive because it was inconsistent with Plaintiff's high level of daily activities. (T. at 20.)
Again, even if the Court found the ALJ failed to explain how she considered the consistency or supportability of Dr. Jenouri's opinion, a review of the record assures the Court the substance of the regulations was not traversed. See Wayne P., 2023 WL 3949877, at *9.
Dr. Jenouri found Plaintiff had some limitations such as positive straight leg raises, her gait was a “waddle,” walking on her heels and toes was difficult, and “her squat was 50%.” Id. at 401. However, Plaintiff had a normal stance, used no assistive devices, needed no help changing for the exam or getting on and off the exam table, and was able to rise from the chair without difficulty. Id. Dr. Jenouri further observed Plaintiff's cervical spine showed full flexion, extension, lateral flexion bilaterally, and there was full rotary movement bilaterally. Id. at 40102. There was no scoliosis, kyphosis, or abnormality in Plaintiff's thoracic spine. Id. Plaintiff's lumbar spine showed extension 30 degrees; flexion 90 degrees; lateral flexion left 30 degrees and right 30 degrees; and rotation right 30 degrees and left 30 degrees. Id. at 402. Dr. Jenouri also found Plaintiff had full (5/5) strength in the upper and lower extremities, as well as a full grip strength bilaterally. Id. Dr. Jenouri diagnosed Plaintiff with osteoarthritis, low back pain, bilateral knee pain, and hypertension and found Plaintiff had mild to moderate restrictions walking and standing for long periods, and for bending, stair climbing, lifting, and carrying. Id. at 402-03.
The ALJ properly found Dr. Jenouri's opinion on Plaintiff's mild to moderate restrictions to be inconsistent with and not supported by Plaintiff's high level of daily activities. 20 C.F.R. §§ 404.1429(c)(4); 416.929(c)(4) (“We will consider whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between your statements and the rest of the evidence.”). Plaintiff testified she tries to do housework but has to pace it towards the end of the day; she goes grocery shopping with her partner once a week; and she helps put the groceries away. (T. at 35-36). Plaintiff also testified she watches TV during the day to pass the time and has a dog who she lets outside but does not walk. Id. at 35-37. Plaintiff stated “[i]f there's things that have to be done, like, in the bedroom or in the bathroom and things, I try and do them.” Id. at 37. Further, Plaintiff reported to Dr. Jenouri she cooks, cleans, and showers five times a week; she dresses herself every day; she does laundry and goes grocery shopping once a week; and listens to the radio. Id. at 400.
Courts have upheld ALJs partially discrediting medical opinions that are contradicted by Plaintiff's daily activities. See Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (the claimant's daily activities undermined his supposed disabling limitations); Brown v. Berryhill, No. 6:17-cv-06584 (MAT), 2018 WL 1827662, at *4 (W.D.N.Y. Apr. 16, 2018) (ALJ properly discredited opinion that the claimant had disabling mental limitations because it was inconsistent with the claimant's activities of daily living, which included cooking, cleaning, doing laundry, and shopping); see also Domm v. Colvin, 579 Fed.Appx. 27, 28 (2d Cir. 2014) (ALJ appropriately found physician's “restrictive assessment” was inconsistent with, among other things, the plaintiff's “testimony regarding her daily functioning”). Moreover, “[a]n ALJ may credit some portion of a consultative opinion, while properly declining to credit those conclusions that are not supported by [the consultative examiner's] own examination findings or are inconsistent with other evidence of record.” Mark H. v. Comm'r of Soc. Sec., 18-CV-1347 (ATB), 2020 WL 1434115, at *8 (N.D.N.Y. Mar. 23, 2020) (citing Cruz v. Colvin, No. 3:13-cv-723 (MAD/TWD), 2014 WL 4826684, *14 (N.D.N.Y. Sept. 29, 2014)). “Although [an] ALJ's conclusion may not perfectly correspond with any of the opinions of medical sources cited in [her] decision, [she is] entitled to weigh all of the evidence available to make an RFC finding that [is] consistent with the record as a whole.” Quinn v. Colvin, 199 F.Supp.3d 692, 712 (W.D.N.Y. 2016) (quoting Matta v. Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013)).
Additionally, “there is no requirement that the agency accept the opinion of a consultative examiner concerning a claimant's limitations.” Pellam v. Astrue, 508 Fed.Appx. 87, 89 (2d Cir. 2013); see also Walker v. Colvin, 15-CV-0465 (CFH), 2016 WL 4768806, at *10 (N.D.N.Y. Sept 13, 2016) (“[A]n ALJ may properly ‘credit those portions of a consultative examiner's opinion which the ALJ finds supported by substantial evidence of record and reject portions which are not so supported' .... This is true even when the ALJ relies on a consultative medical examiner's examination findings, but rejects consultative examiner's medical source statement[.]”) (citations omitted.) Therefore, the ALJ did not err in assigning partial persuasive value to Dr. Jenouri's opinion based on Plaintiff's high level of daily activities. See Rachael V. v. Comm'r of Soc. Sec., No. 18-1346 (TWD), 2020 WL 1304076, at *6 (N.D.N.Y. March 19, 2020) (upholding the finding that an opinion of marked mental limitations was not consistent with the claimant's ability to maintain relationships with her boyfriend and family, attend to selfcare, prepare simple meals, do some cleaning and shopping, and drive); Williams v. Colvin, No. 14-CV-947S, 2017 WL 3404759, at *7 (W.D.N.Y. Aug. 9, 2017) (upholding the ALJ's decision to discount a doctor's opinion because it was contradicted by claimant's ability to perform daily activities, claimant's symptoms, and the objective medical record); Krull v. Colvin, 669 Fed.Appx. 31, 32 (2d Cir. 2016) (holding the ALJ appropriately declined to adopt the doctor's limitations where the claimant engaged in moderately complex tasks, including helping with the care of her grandchildren, using computers, and other daily activities).
In sum, the Court finds the ALJ did not err in relying, in part, on the medical opinion evidence rendered by Dr. Jenouri. Further, for the reasons set forth above, this opinion constitutes substantial evidence and remand is not warranted.
C. The ALJ Reasonably Found Dr. Khan's Opinion to be Unpersuasive
Dr. Khan saw Plaintiff on two occasions: December 1, 2020, and January 14, 2021. (T. at 762-75.) Dr. Khan subsequently answered a questionnaire provided to him by Plaintiff's counsel on June 25, 2021. Id. at 803. Dr. Khan opined Plaintiff can walk one city block without rest or severe pain; she can sit for 20 minutes at one time and for about two hours in an eight-hour workday; she can stand for 10 minutes at one time; and she can stand/walk for less than two hours in an eight-hour workday. Id. at 801. Dr. Khan checked off yes when asked if Plaintiff requires a job that permits shifting positions at will between sitting, standing, and walking. Id. He also indicated on the form Plaintiff would require unscheduled breaks lasting five minutes every hour and checked yes when asked if Plaintiff must use a cane or other assistive device when engaging in occasional standing and walking. Id. at 802. He opined Plaintiff can lift and carry 10 pounds rarely and less than 10 pounds occasionally. Id. Dr. Khan indicated Plaintiff can occasionally look down, turn her head right or left, look up, and hold her head in a static position, but she can never twist, stoop, crouch, or climb ladders or stairs. Id. at 802-03. He further opined Plaintiff can occasionally use her hands to grasp, turn, and twist objects, but cannot use her fingers for fine manipulation or her arms for reaching overhead. Id. Finally, Dr. Khan concluded Plaintiff would be absent from work about four days per month, and her pain or other symptoms would be severe enough to interfere with her attention and concentration frequently. Id. at 803.
The ALJ found this opinion to be unpersuasive because Dr. Kahn's opinions regarding how often Plaintiff would be off task during work and absent from work were speculative and the manipulative restrictions were not supported by Dr. Jenouri's testing. Id. at 21. The ALJ further found Dr. Kahn's opinion was inconsistent with the assessments of the other physicians who rendered an opinion on Plaintiff's abilities and limitations, and it was not supported by the objective evidence of record, including Plaintiff's high level of daily activities. Id.
Here, for the reasons discussed below, the ALJ reasonably found the opinion of Dr. Khan to be unpersuasive because it was inconsistent with and unsupported by the medical evidence and opinions in Plaintiff's record. Id.
1. Dr. Khan's Opinion Regarding Plaintiff Being Off Task and Absent is Speculative.
The ALJ found Dr. Khan's opinion to be unpersuasive in part because Dr. Khan's findings regarding Plaintiff being off task and absent were speculative and not supported by the medical evidence or other opinions in Plaintiff's record. Id. at 21, 803. Plaintiff claims the limitations are not speculative and argues “the ALJ asked the [VE] questions regarding employer tolerances for off task time and absences without any opinion or piece of evidence indicating Plaintiff would not be off task or absent any amount as a result of her impairments.” (Dkt. No. 12 at 9-17.) Plaintiff further claims the ALJ improperly determined Plaintiff would be able to meet the attendance and concentration standards of the positions identified by the VE and substituted her own opinion for the opinion of a doctor. Id. Finally, Plaintiff asserts the ALJ failed to identify any evidence in the record that would “override” Dr. Khan's assessment of nonexertional limitations resulting from pain. Id. at 11.
The Court finds Plaintiff's contentions unavailing. It is well within the ALJ's discretion to reject a medical opinion when there is a lack of evidence supporting the limitations and when objective medical evidence in the record provides substantial evidence to support the ALJ's finding. See, e.g., Melanie W. v. Comm'r of Soc. Sec., No. 5:19-CV-724 (ATB), 2020 WL 2079432, at *8 (N.D.N.Y. Apr. 30, 2020) (finding it “within the ALJ's discretion to reject [a provider's] estimates of absenteeism and time off-task” when there was a “lack of evidence supporting such extreme limitations”); (O' Connor v. Comm'r of Soc. Sec., No. 5:11-CV-01425, 2013 WL 1180963, at *5 (N.D.N.Y. Mar. 20, 2013) (ALJ properly rejected physician's opinion regarding plaintiff's absenteeism rate of four days a month, despite some evidence to the contrary, where “objective medical evidence in the record provid[ed] substantial evidence to support the ALJ's finding that [the opinion] is speculative.”). Dr. Khan cited to no objective medical evidence when opining Plaintiff would have good and bad days, she would be absent four days per month, and her symptoms would be severe enough to frequently interfere with her attention and concentration. (T. at 803.) Moreover, Dr. Khan's findings were not supported by Drs. Padmaraju and Chen's conclusions. After reviewing Plaintiff's medical records, Dr. Padmaraju concluded, and Dr. Chen affirmed, Plaintiff could stand, walk, and sit with normal breaks for a total of 6 hours in an 8-hour workday. Id. at 82, 101. The ALJ did not err in taking issue with Dr. Kahn's lack of supporting explanations and citations and the lack of support from other medical opinions. See Robert O. v. Comm'r of Soc. Sec., No. 3:20-CV-1612 (TWD), 2022 WL 593554, at *13 (N.D.N.Y. Feb. 28, 2022) (The ALJ did not err in concluding medical opinions on check-box forms lacked supporting explanations “or references to specific clinical or diagnostic findings to support the proposed limitations.”) (internal quotation marks and citation omitted).
Furthermore, the ALJ is not required to tether an RFC assessment to a medical opinion, nor is an ALJ's RFC determination fatally flawed merely because it was formulated absent a medical opinion. As stated in the regulations, and contrary to Plaintiff's assertion, an RFC finding is administrative in nature, not medical, and its determination is within the province of the ALJ. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). It is the responsibility of the ALJ to determine Plaintiff's RFC based on all the evidence in the record including, but not limited to, statements provided by medical sources. Id. §§ 404.1527(d), 404.1545(a)(3), 404.1546(c), 416.927(d), 416.945(a)(3), 416.946(c). The Second Circuit has held where “the record contains sufficient evidence from which an ALJ can assess the [plaintiff's] residual functional capacity . . . a medical source statement or formal medical opinion is not necessarily required.” Monroe v. Comm'r of Soc. Sec., 676 Fed.Appx. 5, 8 (2d Cir. 2017) (internal quotation marks and citations omitted); see Matta, 508 Fed.Appx. at 56 (“Although the ALJ's conclusion may not perfectly correspond with any of the opinions of medical sources cited in his decision, he was entitled to weigh all of the evidence available to make an RFC finding that was consistent with the record as a whole.”).
Moreover, Plaintiff's assertion the ALJ erred by failing “to identify any evidence in the record that would override Dr. Kahn's assessment of nonexertional limitations” is unconvincing. (Dkt. No. 12 at 11.) Failing to override is not the standard the ALJ needs to meet to properly find Dr. Khan's opinion to be unpersuasive. The reviewing court only needs to find there was substantial evidence in the record to support the ALJ's decision in order to uphold it. 42 U.S.C. § 405(g); Rivera, 923 F.2d at 967 (2d Cir. 1991). Therefore, the Court finds the ALJ properly concluded Dr. Khan's opinion regarding Plaintiff being off task and absent was speculative.
2. Dr. Khan's Opinion Regarding Plaintiff's Manipulative Restrictions is Unsupported by Other Medical Opinions and Evidence in the Record.
The ALJ found Dr. Khan's opinion regarding Plaintiff's manipulative restrictions was unsupported by the testing done by Dr. Jenouri. (T. at 21.) Plaintiff contends the ALJ has to do more than compare Dr. Khan's findings to just one other opinion. (Dkt. No. 12 at 14.) However, other opinions within the record did not support Dr. Khan's findings. For example, Dr. Padmaraju found, and Dr. Chen affirmed, Plaintiff had no manipulative limitations based on their examination of Plaintiff's medical records and the objective medical evidence therein. (T. at 83, 102.)
Moreover, during his examination of Plaintiff in January 2020, treating physician Dr. Cummings found full strength symmetrically in the upper and lower extremities, with no cogwheeling, paratonia, pronator drift, atrophy, and no fasciculations in the feet. Id. at 468. Plaintiff had normal reflexes; intact vibration and proprioception in her hands and feet; no asymmetry to pinprick in the dermatomes of the lower extremities; no tinel's sign at the lateral or medial ankles; and subjective decreased pinprick in portions of the dorsum and sole of the right foot. Id. at 468-69. Plaintiff's finger-to-nose testing was intact; her gait was without spasticity, truncal, or appendicular ataxia; and she did not have bradykinesia, nor a shuffling or magnetic gait. Id. at 469. Plaintiff could walk on her heels and tiptoes and there was no tremor when her arms were at rest, when held in posture, or with intention. Id.
Additionally, Dr. Rasheed, a treating neurology specialist, saw Plaintiff for numbness and paresthesia in the lower extremities in July 2020. Id. at 314-16. Dr. Rasheed found Plaintiff's neck to be supple, with good range of the motion of the cervical spine and good neck and shoulder strength. Id. at 315. He reported no drift, normal tone of the muscle groups bilaterally, and full strength throughout. Id. Dr. Rasheed concluded he suspected the development of early neuropathy and found the pattern of sensory change to be inconsistent with radicular sensory loss, despite Plaintiff having evidence of lumbar degenerative joint disease. Id.
Plaintiff visited Family Nurse Practitioner (“FNP”) Alentyev in August 2020 for lower extremity numbness and tingling. Id. at 415-16. FNP Alentyev found Plaintiff's neck and shoulder strength to be good; intact strength throughout with no asymmetry; and normal tone with no drift. Id. at 416. Plaintiff's deep tendon reflexes were +2 in the upper extremities and hypoactive in the lower extremities. Id. Her finger-to-nose coordination revealed no dysmetria and her gait was steady. Id. FNP Alentyev concluded Plaintiff's condition appeared to be “a combination of all the peripheral neuropathy with lumbar radiculopathy.” Id. He prescribed Plaintiff amitriptyline for her symptoms. Id.
Dr. Rasheed examined Plaintiff again in January 2021. Id. at 413-14. He noted no dysmetria from the finger-to-nose testing, her motor tone and power were good, and her reflexes were +1 and symmetric. Id. at 414. Dr. Rasheed concluded Plaintiff had idiopathic mixed small or large fiber sensory neuropathy and right L4-5 radiculopathy. Id. However, he found Plaintiff had done well from a neuropathy standpoint. Id.
Dr. Khan's notes from his two appointments with Plaintiff do not support his subsequent findings regarding the functional ability of Plaintiff's hands, fingers, and arms on the questionnaire. When Dr. Khan saw Plaintiff in December 2020, he noted no issues with Plaintiff's hands or fingers. Id. at 772. Plaintiff's deep tendon reflexes were normal, with the exception of her ankles. Id. at 773. In January 2021, Dr. Khan again noted no issues with Plaintiff's hands or fingers. Id. at 767-68. Plaintiff was negative for gait problems, dizziness, and numbness, and had a supple neck. Id. When Dr. Khan filled out the Medical Source Statement questionnaire, he indicated Plaintiff could only occasionally use her hands to grasp, turn, and twist objects, and could never use her fingers for fine manipulations or her arms for reaching, including reaching overhead. Id. at 802-03. There is a lack of objective medical evidence in Dr. Khan's two earlier visits with Plaintiff consistent with or supportive of his conclusion regarding Plaintiff's capabilities with her hands, fingers, and arms. Therefore, the Court finds substantial evidence supports the ALJ's conclusion that Dr. Khan's opinion regarding Plaintiff's manipulative restrictions was unsupported by his own exams, as well as other medical opinions and evidence in the record.
3. Dr. Khan's Opinion Regarding Plaintiff's Abilities and Limitations is Inconsistent with Other Medical Opinions and Evidence in the Record.
The ALJ found Dr. Khan's medical opinion to be inconsistent with the assessments of other physicians who rendered an opinion on Plaintiff's abilities and limitations. (T. at 21.) Plaintiff argues, however, substantial evidence supports Dr. Khan's opinion and the ALJ completely failed to apply the consistency factor to his opinion. (Dkt. No. 12 at 11-13.) The Court disagrees. The ALJ properly found Dr. Khan's opinion to be inconsistent with the assessments of other physicians and the objective medical evidence of record.
As noted, Plaintiff saw Dr. Khan on two occasions: once in December 2020, and once in January 2021. (T. at 762, 772.) In December 2020, Plaintiff saw Dr. Kahn for chronic low back pain and joint pain. Id. at 772. Plaintiff reported the low back pain going down her leg was bothering her the most and she was having difficulty walking as a result. Id. She wanted to try epidural steroid injections. Id. Plaintiff noted she had had an MRI earlier in the year which showed spinal stenosis and lumbar disc bulging. Id. Plaintiff stated this was a chronic problem, but the current episode had started more than one month ago and occurred intermittently. Id. Plaintiff reported the pain was present in her lumbar spine, had a deep sharp quality, and radiated to the right foot. Id. Plaintiff rated the severity of the pain 3/10, but also said the pain was moderate and the same all the time. Id. She reported the pain was exacerbated by daily activities and lifting, and was associated with headaches, leg pain, numbness, and tingling, but no stiffness. Id.
Dr. Khan reviewed Plaintiff's systems and found Plaintiff positive for back pain, tingling, numbness, and headaches, but negative for a gait problem. Id. Dr. Khan reported Plaintiff was not in acute distress, had a normal appearance, and was obese. Id. at 773. Her neck was supple, and her gait was intact. Id. He noted tenderness, pain, spasms, and a decreased range of motion in the lumbar back. Id. Plaintiff's deep tendon reflexes were normal, with the exception of her ankles which had a DTR of “1+,” and there was decreased sensation in the right L5 dermatome. Id. Dr. Khan diagnosed Plaintiff with chronic lumbar radiculopathy and ordered an L5/S1 epidural steroid injection. Id. at 774.
In January 2021, Dr. Kahn saw Plaintiff for a lumbar epidural steroid injection. Id. at 762. Plaintiff had chronic low back pain radiating down her legs, more on the right side than the left. Id. at 763. After reviewing the February 2020 MRI, Dr. Khan reported spinal stenosis and lumbar disc bulging. Id. Dr. Khan opined Plaintiff's pain was interfering with her walking and, as a result, she was experiencing poor quality of life due to back and leg pain. Id. Plaintiff was positive for back pain, but negative for gait problem, dizziness, and numbness. Id. at 767. Plaintiff was not in acute distress, her neck was supple, and she exhibited decreased range of motion and tenderness in her lumbar back. Id. at 768. After the administration of the lumbar epidural steroid injection, Dr. Khan stated Plaintiff had intractable low back pain that was unresponsive to conservative management, was severe, and adversely affected Plaintiff's quality of life and activities of daily living. Id. at 771.
Dr. Khan's conclusion that Plaintiff had intractable low back pain that was unresponsive to conservative management is inconsistent with Plaintiff's January 2021 exam with Dr. Rasheed, where she reported an improvement in the neuropathic symptoms since she started taking the amitriptyline, with the burning dyesthetic sensation and paresthesia having improved significantly. Id. at 413, 771. It is also inconsistent with Dr. Tang's exam of Plaintiff in March 2021, where she reported no musculoskeletal issues or back pain. Id. at 519-21. Dr. Tang also noted Plaintiff's bilateral leg neuropathy was doing well on amitriptyline. Id. at 650.
Dr. Khan's opinion on Plaintiff's back pain reflected in the questionnaire is inconsistent with and unsupported by Dr. Khan's findings in December 2020 and January 2021. Id. at 762, 773. In December 2020, Dr. Khan reported Plaintiff was not in acute distress, her neck was supple, and her gait was intact. Id. at 772. Plaintiff described the low back pain as a 3/10, moderate, and constant. Id. Low back pain at a “moderate” level of 3/10 is arguably not consistent with intractable low back pain. Id. Furthermore, in January 2021, Dr. Khan reported Plaintiff was not in acute distress, and her neck was supple. Id. at 763. While Plaintiff did have a decreased range of motion and tenderness in the lumbar back in both December 2020 and January 2021, the visits as a whole are not consistent with and do not support Dr. Khan's conclusion Plaintiff had intractable low back pain that was unresponsive to conservative management. Id. at 773, 768. Dr. Khan's findings at these visits do not support his subsequent conclusion Plaintiff could only occasionally look down, turn her head right or left, look up, and hold her head in a static position. Id. at 802. Therefore, the Court finds substantial evidence supports the ALJ's conclusion Dr. Khan's opinion regarding Plaintiff's abilities and limitations is inconsistent with other medical opinions and evidence within the record.
4. Dr. Khan's Opinion is Inconsistent with and Unsupported by Plaintiff's High Level of Daily Activities.
The ALJ concluded Dr. Khan's opinion was not supported by the objective evidence of the record including Plaintiff's high level of daily activities. Id. at 21. In response, Plaintiff argues there was substantial evidence supporting Dr. Khan's opinion, and the ALJ failed to apply the supportability factor at all. (Dkt. No. 12 at 11-13.) Additionally, Plaintiff claims the ALJ failed to identify Plaintiff's high level of daily activities when concluding Dr. Khan's medical opinion is not consistent with her level of daily activities. Id. at 17. However, after making this claim, Plaintiff then proceeds to note how the ALJ did identify the level of daily activities, stating the ALJ referred to testimony where Plaintiff “asserted that she spends her days doing housework and that she has to pace herself. She asserted that she can pick up five pounds or a gallon of milk and that she requires an ankle brace when her ankle really bothers her.” (Dkt. No. 12 at 17; T. at 18, 38.) The ALJ also noted Plaintiff “admitted that she cooks and cleans five days per week. She does laundry and shops once per week. She showers five days per week. She dresses every day. She watches television and listens to the radio.” (T. at 20.) The ALJ concluded “these activities require many of the same functions that the claimant alleges she is unable to perform in a work setting.” Id. Plaintiff categorizes these daily activities as “very basic and limited” and argues it is unclear how they are akin to light work and inconsistent with Dr. Khan's opinion. (Dkt. No. 12 at 18.)
Under the regulations, the ALJ is required to consider evidence of Plaintiff's daily activities when evaluating the medical opinion evidence as well as the intensity, persistence, and limiting effects of Plaintiff's symptoms. See C.F.R. §§ 404.1520c(c)(2); 404.1529(c)(3)(i); Vellone v. Saul, No. 1:20-CV-261 (RA) (KHP), 2021 WL 319354, at *11 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021); SSR 16-3p, 2017 WL 5180304 at &7-8. These considerations, as well as evidence of Plaintiff's daily activities, inform the ALJ's RFC determination. See 20 C.F.R. §§ 404.1545(a)(3), (e).
The ALJ properly considered Plaintiff's daily activities when forming the RFC. See Cichocki, 729 F.3d at 178 (ALJ properly considered the plaintiff's varied daily activities in formulating the RFC). Plaintiff reported to Dr. Jenouri she cooked and cleaned five times a week; did laundry and went grocery shopping once a week; showered five times a week; dressed herself every day; and watched TV and listened to the radio. (T. at 400.) The ALJ further noted Plaintiff's treating provider recommended she engage in moderate to vigorous exercise three to four days per week. Id. at 19, 330, 340, 368, 379, 435, 445, 475, 494, 502, 514, 543, 549, 559, 570, 607, 624, 632, 645. This is relevant because it indicates her treating physician believed her to be capable of doing exertional activities.
Moreover, even if Plaintiff had moderate limitations, such limitations have been found to be consistent with an RFC for a full range of light work. See, e.g., Harris v. Comm'r of Soc. Sec., No. 09-CV-1112 (NAM/VEB), 2011 WL 3652286, at *5 (N.D.N.Y. July 27, 2011), report and recommendation adopted, 2011 WL 3652201 (N.D.N.Y. Aug. 17, 2011) (finding “slight to moderate limitations in activities that require lifting, carrying, and reaching .... is consistent with the ALJ's conclusion that Plaintiff could perform light work”) (internal quotation marks and citations omitted); Vargas v. Astrue, No. 10 Civ. 6306(PKC), 2011 WL 2946371, at *12 (S.D.N.Y. July 20, 2011) (finding “moderate limitations for lifting, carrying, handling objects and climbing stairs” consistent with RFC for full range of light work); Nelson v. Colvin, No. 12-CV-1810 (JS), 2014 WL 1342964, at *12 (S.D.N.Y. Mar. 31, 2014) (“the ALJ's determination that Plaintiff could perform ‘light work' is supported by [doctor's] assessment of ‘mild to moderate limitation for sitting, standing, walking, bending, and lifting weight on a continued basis'”) (citation omitted); Hazlewood v. Comm'r of Soc. Sec., No. 6:12-CV-798, 2013 WL 4039419, at *7 (N.D.N.Y. Aug. 6, 2013) (doctor's opinion plaintiff had “mild to moderate limitations in walking, pushing, and pulling” supported the “ALJ's determination that plaintiff could physically perform light work”); Carroll v .Colvin, No. 13-CV-456S, 2014 WL 2945797, at *4 (W.D.N.Y. 2014) (“several courts have upheld an ALJ's decision that the claimant could perform light . . . work even when there is evidence that the claimant had moderate difficulties in prolonged sitting or standing”). Therefore, the Court finds the ALJ properly considered Plaintiff's daily activities when determining the RFC.
D. The ALJ Properly Considered and Weighed the Medical Opinions
Finally, Plaintiff contends it was an error for the ALJ to rely solely on the medical opinions of the consulting examiner because an inconsistent finding from a consultative examiner is not sufficient on its own to reject the opinion of the treating physician. (Dkt. No. 12 at 18.) Plaintiff's argument is misplaced.
As set forth above, an ALJ is entitled to rely on opinions from both examining and non-examining State agency medical consultants because these consultants are qualified experts in the field of Social Security disability. See Frye ex rel. A.O., 485 Fed.Appx. at 487; Little, 2015 WL 1399586, at *9; see also Reed, 2018 WL 1183382, at *5; Barber, 2016 WL 4411337, at *7. Indeed, the Second Circuit has upheld giving more weight to a well-supported medical opinion from a consultative examiner, such as Dr. Jenouri, or well-supported PAMFs from non-examining state agency doctors, such as Drs. Padmaraju and Chen, and less weight to an unsupported assessment from a treating source, such as Dr. Khan. See Petrie v. Astrue, 412 Fed.Appx. 401, 405 (2d Cir. 2011) (“The report of a consultative physician may constitute . . . substantial evidence.”); Micheli v. Astrue, 501 Fed.Appx. 26, 29 (2d Cir. 2012) (finding that opinion of state agency physician provided substantial evidence to support ALJ's RFC finding).
Moreover, an ALJ is free to “choose between properly submitted medical opinions.” See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998). She is also entitled to weigh all the evidence available to make an RFC finding consistent with the record as a whole and need not perfectly correspond with any of the opinions of the medical sources. See Matta, 508 Fed.Appx. at 56. Here, the ALJ resolved conflicts between the various medical opinions by finding persuasive those portions of the medical opinions deemed most consistent with Plaintiff's treatment record and activities. (T. at 20-21). In doing so, the ALJ appropriately evaluated the conflicting medical evidence and made an RFC finding consistent with the overall record. Id. at 21-22. Therefore, the Court finds the ALJ properly considered and weighed the medical opinions.
V. CONCLUSION
Considering the foregoing, the Court finds the ALJ applied the correct legal standards and substantial evidence supports her decision. Remand is therefore not warranted.
WHEREFORE, it is hereby
ORDERED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 12) is DENIED; and it is further
ORDERED that the Commissioner's motion for judgment on the pleadings (Dkt. No. 14) is GRANTED; and it is further
ORDERED that the Commissioner's decision denying Plaintiff benefits is AFFIRMED; and it is further
ORDERED that Plaintiff's complaint (Dkt. No. 1) is DISMISSED and the Clerk of Court is directed to enter judgment and close the case.