Opinion
22 Civ. 7982 (KMK) (AEK)
02-14-2024
LETICIA MARRERO, Plaintiff, v. MARTIN J. O'MALLEY,.[1] COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
THE HONORABLE KENNETH M. KARAS, U.S.D.J.
Plaintiff Leticia Marrero brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the “Commissioner”), which denied her application for disability insurance benefits (“DIB”). ECF No. I.. Currently pending before the Court are Plaintiff s motion, and the Commissioner's cross-motion, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ECF Nos. 12, 15. For the reasons that follow, I respectfully recommend that Plaintiffs motion (ECF No. 12) be DENIED, that the Commissioner's motion (ECF No. 15) be GRANTED, and that judgment be entered in favor of the Commissioner.
The complaint incorrectly states that Plaintiff was denied supplemental security income.
BACKGROUND
I. Procedural Background
On February 23, 2017, Plaintiff filed an application for DIB, alleging April 30, 2011, as the onset date of her disability. AR 207, 208, 265-71.. hi her initial filing. Plaintiff claimed she was disabled due to diabetes, high cholesterol, back injury, depression, and visual impairment. AR 208-09. Following the denial of Plaintiff s claim by the Social Security Administration (the “SSA”), Plaintiff requested a hearing before an administrative law judge (“ALJ”). AR 214-21. An administrative hearing was held on December 12, 2018, before ALJ Benjamin Chaykin, at which Plaintiff appeared pro se. AR 161-206. On March 13, 2019, ALJ Chaykin issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act (the “Act”) from April 30, 2011, through her date last insured of December 31, 2016. AR 1533. Plaintiff subsequently filed a request for review of that decision with the SSA's Appeals Council, AR 262, and on April 23, 2020, the Appeals Council denied the request for review, AR 8-14. On July 31, 2020, after considering additional evidence, the Appeals Council again denied Plaintiff s request for review of the ALJ's decision. AR 1-7.
Citations to “AR” refer to the certified copy of the administrative record filed by the Commissioner. ECF No. 9.
The “date last insured” is the last date a claimant is eligible to receive DIB, and the date is calculated based on the claimant's work history. Specifically, “[t]o qualify for Social Security [DIB], a claimant generally must, inter alia, have earned at least twenty ‘quarters of coverage' over the ten-year period prior to the onset of disability.” Feliciano v. Colvin, No. 12-CV-6202 (PGG), 2015 WL 1514507, at *1 n.l (S.D.N.Y. Mar. 31, 2015). “[W]hen a claimant does not show that a currently existing condition rendered [him or] her disabled prior to [his or] her date last insured, benefits must be denied.” Mauro v. Berryhill, 270 F.Supp.3d 754, 762 (S.D.N.Y. 2017). Here, Plaintiff does not dispute that her “date last insured” for purposes of her claim for DIB was December 31, 2016. See ECF No. 13 (“Pl.'s Mem.”) at 1 n.l. Accordingly, Plaintiff was required to establish that her disability arose on or before December 31, 2016, to qualify for DIB.
Plaintiff filed suit in federal court to seek judicial review of the Appeals Council order. See Marrero v. Commissioner of Social Security, 20 Civ. 7996 (VSB) (SLC) (S.D.N.Y.) (Marrero I”). On September 20, 2021, the district coin! so ordered the parties' stipulation to vacate the Appeals Council order and remand the case for further administrative proceedings, including the opportunity for a new hearing. See Marrero I, ECF No. 25. On September 24, 2021, the Appeals Council remanded the case to an ALJ. AR 1016-21. hi its remand order, the Appeals Council noted that Plaintiff had submitted additional evidence to the Appeals Council, including an independent evaluation and medical source statement from psychologist Marisol Valencia-Payne, Psy.D., and a medical source statement from Plaintiff s treating therapist, Licensed Clinical Social Worker (“LCSW”) Adolfo Marrero. AR 1018. The Appeals Council directed that on remand, the ALJ will “[e]valuate the additional evidence submitted to the Appeals Council”; “[o]btain evidence or testimony form a medical expert or consultative examiner (psychologist or psychiatrist), as well as obtain vocational expert testimony”; and “[a]s necessary, proceed through the sequential evaluation process.” AR 1019.
On February 24, 2022, Plaintiff appeared for another hearing, this time represented by counsel, before ALJ Peter Beekman. AR 982-1014. hi a decision issued on March 28, 2022, ALJ Beekman denied Plaintiff s claim for DIB. AR 951-73. Plaintiff filed a request for review of that decision with the Appeals Council, AR 980-81, and submitted exceptions to ALJ Beekman's decision on July 14, 2022, AR 974-76. On August 6, 2022, the Appeals Council found that Plaintiff s written exceptions did not provide a basis for changing ALJ Beekman's decision, and concluded that the decision complied with the orders of the district court and the Appeals Council on remand; this made ALJ Beekman's decision the final decision of the Commissioner for purposes of further review. AR 945-50. The instant lawsuit, seeking judicial review of ALJ Beekman's decision, was filed on September 19, 2022. ECF No. 1.
II. Testimonial, Medical, and Vocational Evidence
Because Plaintiff is only challenging aspects of the ALJ's decision concerning her mental impairment, she has provided a summary of the testimonial, medical, and vocational evidence contained in the administrative record related only to that impairment. See Pl.'s Mem. at 2-16. The Commissioner has adopted Plaintiff s summary of the evidence and provided a brief statement of additional evidence that the SSA deems relevant to the Court's determination. See ECF No. 16 (“Def.'s Mem.”) at 4-5. Based on an independent and thorough examination of the record, the Court finds that the parties' summaries of the evidence concerning Plaintiff s mental impairment are largely comprehensive and accurate. Accordingly, the Court adopts the summaries and discusses the evidence in the record in more detail to the extent necessary to evaluate the issues raised in this case. See, e.g., Banks v. Comm 'r of Soc. Sec., No. 19-CV-929 (AJN) (SDA), 2020 WL 2768800, at *2 (S.D.N.Y. Jan. 16, 2020), adopted by 2020 WL 2765686 (S.D.N.Y. May 27, 2020).
APPLICABLE LEGAL PRINCIPLES
I. Standard of Review
The scope of review in an appeal from a social security disability determination involves two levels of inquiry. First, the com! must review the Commissioner's decision to assess whether the Commissioner applied the correct legal standards when finding that the plaintiff was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). “‘Failure to apply the correct legal standards is grounds for reversal.'” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Second, the court must evaluate whether the Commissioner's decision was supported by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 106 (quotation marks omitted). The “substantial evidence” standard of review is “very deferential,” and it is not the function of the reviewing court “to determine de novo whether a plaintiff is disabled.” Schillo v. Kijakazi, 31 F.4th 64, 74 (2d Cir. 2022) (quotation marks omitted). To determine whether a decision by the Commissioner is supported by substantial evidence, courts must “examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Id. (quotation marks omitted). “The substantial evidence standard means once an ALJ finds facts, [courts] can reject those facts only if a reasonable factfinder would have to conclude otherwise!' Id. (quotation marks omitted) (emphasis in original). “Tf evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.'” Id. (quoting McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014)).
IL Determining Disability
The Act defines “disability” as the inability “to engage in any substantial gainfill 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). An individual is disabled under the Act if he or she suffers from an impairment which is “of such severity that he [or she] is not only unable to do liis [or her] previous work but cannot... engage in any other kind of substantial gainfill work which exists in the national economy[.]” 42 U.S.C. § 423(d)(2)(A). “‘[W]ork which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Id.
Regulations issued pursuant to the Act set forth a five-step process that the Commissioner must follow in determining whether a particular claimant is disabled. See 20 C.F.R. § 404.1520(a)(4). The Commissioner first considers whether the claimant is engaged in “substantial gainfill activity.” 20 C.F.R. § 404.1520(a)(4)(i), (b). If the claimant is engaged in substantial gainfill activity, then the Commissioner will find that the claimant is not disabled; if the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to the second step, at which the Commissioner considers the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(a)(4)(h). A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant suffers from any severe impairment, the Commissioner at step three must decide if the impairment meets or equals a listed impairment; listed impairments are presumed severe enough to render an individual disabled, and the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of the SSA regulations. 20 C.F.R § 404.1520(a)(4)(iii), (d).
If the claimant's impairments do not satisfy the criteria of a listed impairment at step three, the Commissioner must then determine the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). A claimant's RFC represents “the most [he or she] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). After determining the claimant's RFC, the Commissioner proceeds to the fourth step to determine whether the claimant can perform his or her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv), (e)-(f). If it is found that the claimant cannot perform his or her past relevant work, the Commissioner proceeds to step five to consider the claimant's RFC, age, education, and work experience to determine whether he or she can adjust to other work. 20 C.F.R. § 404.1520(a)(4)(v), (g). To support a finding that the claimant is disabled, there must be no other work existing in significant numbers in the national economy that the claimant, in light of his or her RFC and vocational factors, is capable of performing. 20 C.F.R. § 404.1560(c).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the ALJ concludes at an early step of the analysis that the claimant is not disabled, he or she need not proceed with the remaining steps. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000). If the fifth step is necessary, the burden shifts to the Commissioner to show that the claimant is capable of performing other work. DeChirico, 134F.3dat 1180.
DISCUSSION
Plaintiff seeks to reverse the Commissioner's decision and have the matter remanded to the SSA solely for the calculation of benefits or, in the alternative, for a new hearing and decision. Pl.'s Mem. at 29. She contends that the ALJ (1) improperly evaluated the medical opinion evidence; (2) failed to properly determine Plaintiff s RFC; and (3) improperly evaluated Plaintiffs subjective statements. Pl.'s Mem. at 17-29; see also ECF No. 17 (“Reply Mem.”). The Commissioner maintains that the final decision denying DIB should be affirmed because it is supported by substantial evidence, and the ALJ reasonably weighed the medical opinions and reasonably assessed Plaintiff s subjective complaints. Def's Mem. at 7-21.
For the reasons set forth below, the Court finds that the ALJ properly evaluated the medical opinion evidence. Moreover, although the ALJ procedurally erred in failing to explicitly address all of the Burgess factors, see Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008), he did not violate the substance of the treating physician rule, because a searching review of the record has assured the Court that there are good reasons in the record for the ALJ's decision to assign less-than-controlling weight to the opinion of Plaintiff s treating psychiatrist, see Estrella v. Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019). The Court also finds that the ALJ's RFC determination was proper, as was the ALJ's evaluation of Plaintiff s subjective complaints. Therefore, I respectfully recommend that Plaintiff s motion be denied, that the Commissioner's motion be gr anted, and that judgment be entered in favor of the Commissioner.
I. The ALJ's Decision
ALJ Beekman applied the five-step sequential analysis described above and issued a decision finding that Plaintiff was not disabled from her alleged onset date of April 30, 2011 through December 31, 2016, her date last insured. AR 954-73. First, the ALJ found that Plaintiff had not engaged in substantial gainfill activity from April 30, 2011 through December 31, 2016. AR 956. Second, the ALJ determined that through her date last insured. Plaintiff had the severe impairment of an affective disorder. Id. ALJ Beekman found that Plaintiff s impairments of diabetes and obesity were non-severe, AR 957, and those findings are not in dispute in this appeal. Third, the ALJ concluded that through her date last insured. Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 95758.
More specifically, the ALJ found that Plaintiff s mental impairment did not meet or medically equal the criteria of Listings 12.04 (depressive, bipolar, and related disorders) or 12.06 (anxiety and obsessive-compulsive disorders). AR 957. The ALJ arrived at this conclusion by first considering whether Plaintiff s impairment satisfied the “paragraph B” criteria. “To satisfy the paragraph B criteria, [a claimant's] mental disorder must result in ‘extreme' limitation of one, or ‘marked' limitation of two, of the four areas of mental functioning.” 20 C.F.R. Part 404, Subpt. P, App'x 1 § 12.00(A)(2)(b) (eff. Apr. 2, 2021 to Oct. 5, 2023).; see id. §§ 12.04(B), 12.06(B). ALJ Beekman determined that Plaintiff had moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. AR 958-59. Accordingly, the ALJ concluded that the paragraph B criteria were not satisfied. AR 959. ALJ Beekman also determined that the record evidence failed to establish the presence of the “paragraph C” criteria. Id. Finally, noting that the limitations identified in the paragraph B criteria are used “to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process,” whereas the mental RFC evaluation at steps 4 and 5 “requires a more detailed assessment,” the ALJ explained that his RFC finding “reflects the degree of limitation [that he] found in the ‘paragraph B' mental functional analysis.” Id.
This is the version of the SSA regulations that was in effect when ALJ Beekman issued his decision.
According to ALJ Beekman, through Plaintiff s date last insured, she retained the RFC to perform a frill range of work at all exertional levels, with the following nonexertional limitations:
can do no complex tasks but can do simple (routine) tasks which [the ALJ] defme[d] to mean this person has the basic mental aptitude to meet the demands of competitive, remunerative, unskilled work including] the abilities to, on a sustained basis, understand, cany out, and remember simple instructions. Can respond appropriately to supervision, coworkers, and usual work situations; and can deal with changes in routine work settings. Can focus attention on simple or routine work activities for at least 2 horns at a time and can stay on task at a sustained rate such as initiating and perform[ing] a task that they understand and know how to do. Can work at an appropriate and consistent pace and can complete tasks in a timely maimer. Can ignore or avoid distractions while working; can change activities or work settings without being disruptive. Can do only low stress work meaning no high production quotas or piece rate
work. Can have occasional and superficial interactions with [the] public, [and] co-workers[,] meaning limited to speaking, signaling, taking instructions, asking questions and similar contact[,] but with no arbitration, negotiation, confrontation, supervision, or commercial driving.Id.
In determining Plaintiff s RFC, the ALJ evaluated Plaintiff s symptoms by applying the two-step framework described in 20 C.F.R. § 404.1529 and SSR 16-3p,. concluding first that Plaintiff s “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” but second that her “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record ...AR 960. The ALJ provided a detailed summary of the evidence in the record, including Plaintiff s statements about her symptoms and activities of daily living as well as the medical treatment records. AR 960-65.
The ALJ specified that the first step in this process is to determine “whether there is an underlying medically determinable physical or mental impaimient(s)i.e., an impairment(s) that can be shown by medically acceptable clinical or laboratory diagnostic techniques-that could reasonably be expected to produce the claimant's pain or other symptoms.” AR 960. Second, “once an underlying physical or mental impaiiment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown, [the ALJ] must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's work-related activities,” and “whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the [ALJ] must consider other evidence in the record to determine if the claimant's symptoms limit the ability to do work-related activities.” Id.
ALJ Beekman considered the opinion evidence in accordance with 20 C.F.R. § 404.1527. See AR 961-64. Of particular relevance to the issues raised in the parties' cross-motions was the ALJ's consideration of opinion evidence from Plaintiff s treating psychiatrist Dr. Andrea Bulbena-Cabre, treating therapists LCSW Marrero and Licensed Master Social Worker (“LMSW”) Luis Ramos, and independent medical examiner Dr. Valencia-Payne. The ALJ gave “little weight” to the opinions of Dr. Bulbena-Cabre, LCSW Marrero, and Dr. Valencia-Payne, and did not address the opinions of LMSW Ramos. See AR 963-64.
At the fourth step, the ALJ found that through her date last insured. Plaintiff could not perform her past relevant work as an administrative assistant, a secretaiy, or a survey worker. AR 965.
At the fifth step, the ALJ noted that Plaintiff, who was 55 years old on her date last insured, was “an individual closely approaching advanced age”; that she had at least a high school education; and that transferability of job skills was not an issue “because using the Medical-Vocational Rules as a framework supports a finding that the claimant is ‘not disabled,' whether [or not] the claimant has transferable job skills.” Id. ALJ Beekman explained that if a claimant had solely nonexertional limitations, then section 204.00 of the Medical-Vocational Guidelines provided a framework for decision-making. AR 966. But because Plaintiff s ability to perform work at all exertional levels through her date last insured was “compromised by nonexertional limitations,” ALJ Beekman “asked the vocational expert whether jobs existed in the national economy for an individual with [Plaintiff s] age, education, work experience, and [RFC].” Id. The ALJ noted that the vocational expert testified that Plaintiff could perform the representative unskilled light occupations of (1) night cleaner (approximately 106,000 jobs nationally); (2) cleaner/housekeeper (approximately 112,000 jobs nationally); and (3) mail clerk (approximately 16,000 jobs nationally). Id. Based on the vocational expert's testimony, the ALJ concluded that, through her date last insured, considering Plaintiff s age, education, work experience, and RFC, Plaintiff was capable of making “a successfill adjustment to other work that existed in significant numbers in the national economy.” Id. For all of these reasons, the ALJ determined that Plaintiff had not been disabled at any time from April 30, 2011, her alleged onset date, to December 31, 2016, her date last insured. Id.
The vocational expert actually testified that the job of night cleaner was at a medium exertional level. AR 1010-11. This error is harmless, however, since the ALJ determined that Plaintiff could perform work at all exertional levels, and Plaintiff does not challenge the exertional portion of the RFC assessment.
II The ALJ's Evaluation of the Medical Opinion Evidence
Plaintiff contends that the ALJ failed to properly weigh the medical opinion evidence, including by failing to properly apply the treating physician rule. Pl.'s Mem. at 17-24. According to Plaintiff, ALJ Beekman incorrectly gave “little weight” to the opinions of her treating psychiatrist Dr. Bulbena-Cabre and treating therapist LCSW Marrero, and also erred by failing to state what weight, if any, he gave to the opinion of her later treating therapist LMSW Ramos. Id. at 18. Additionally, Plaintiff maintains that the ALJ erred in assigning “little weight” to the opinion of independent medical examiner Dr. Valencia-Payne. Id. at 23. The Commissioner counters that ALJ Beekman properly applied the treating physician rule and appropriately weighed all of the opinion evidence. Def.'s Mem. at 11-18.
A. The Treating Physician Rule
As a general matter, an ALJ is directed to consider “every medical opinion” in the record, regardless of its source. 20 C.F.R. § 404.1527(c). Yet not every medical opinion is assigned the same weight. “Under the treating physician rule, an ALJ must give ‘controlling weight' to the opinion of a claimant's treating physician, so long as it is ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record.'” Castorina v. Kijakazi, No. 21-100-cv, 2023 WL 4229250, at *1 (2d Cir. June 28, 2023) (summary order) (quoting Burgess, 537 F.3d at 128 (cleaned up)). “If the treating physician's opinion is not well-supported or is contradicted by substantial evidence, then the ALJ must articulate good reasons to rebut the presumption of controlling deference conferred on the treating physician's opinion.” Id. (quoting Colgan v. Kijakazi, 22 F.4th 353, 360 (2d Cir. 2022)) (quotation marks omitted). “The ALJ must then determine how much weight, if any, to give the treating physician's opinion.” Id. (citing Estrella 925 F.3d at 95-96). “In doing so, [the ALJ] must explicitly consider the following, nonexclusive Burgess factors: (1) the frequency, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Estrella, 925 F.3d at 95-96 (cleaned up); See 20 C.F.R. § 404.1527(c)(2)(i)-(ii), (c)(3)-(c)(6).
SSA regulations were amended for claims filed after March 27, 2017. Because Plaintiff filed her application for DIB on February 23, 2017, the earlier version of the “treating physician rule” applies in this matter.
The ALJ need not provide a “slavish recitation of each and every factor where the ALJ's reasoning and adherence to the regulation are clear.” Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013) (summary order); see also Winder v. Berryhill, 369 F.Supp.3d 450, 458 (E.D.N.Y. 2019) (“An ALJ does not have to explicitly walk through these factors, so long as the Court can conclude that the ALJ applied the substance of the treating physician rule and provided good reasons for the weight [he or] she gives to the treating source's opinion.”) (cleaned up); Martinez-Paulino v. Astrue, No. 1 l-cv-5485 (RPP), 2012 WL 3564140, at *16 (S.D.N.Y. Aug. 20, 2012) (“It is not necessary that the ALJ recite each factor explicitly, only that the decision reflects application of the substance of the rule.”). Nonetheless, the Commissioner must “always give good reasons in [his or her] notice of determination or decision for the weight [he or she] give[s] [a claimant's] treating source's medical opinion,” 20 C.F.R. § 404.1527(c)(2); See Colgan, 22 F.4th at 360, and must “comprehensively set forth reasons for the weight” ultimately assigned to the opinion of the treating source, Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004). “Failure to provide ‘good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); see Burgess, 537 F.3d at 129-30. Ultimately, “[a]n ALJ's failure to explicitly apply the Burgess factors when assigning weight is a procedural error. If, however, a searching review of the record assures [the court] that the substance of the treating physician rule was not traversed, [the court] will affirm.” Castorina, 2023 WL 4229250, at *1 (cleaned up) (quoting Estrella, 925 F.3d at 96).
B. The ALJ's Application of the Treating Physician Rule
Having conducted a carefill and thorough review of the record, this Court concludes that the ALJ's evaluation of the medical opinion evidence did not amount to legal error that warrants remand.
1. Treating Source-Acceptable Medical Source- Dr. Andrea Bulbena-Cabre
Plaintiff s treating psychiatrist Dr. Bulbena-Cabre completed a form entitled “Psychiatric/Psychological Impairment Questionnaire” on February 8, 2022. AR 1504-08. hi the questionnaire. Dr. Bulbena-Cabre opined that Plaintiff had a moderate-to-marked limitation in her ability to travel to unfamiliar places or use public transportation, and moderate limitations in her abilities to (1) sustain ordinary routine without supervision; (2) make simple work-related decisions; (3) complete a workday without interruptions from psychological symptoms; (4) interact appropriately with the public; (5) respond appropriately to workplace changes; (6) be aware of hazards and take appropriate precautions; and (7) make plans independently. AR 1507. hi all other respects, Dr. Bulbena-Cabre assessed that Plaintiff had “none to mild” limitations in mental functioning. Id. Dr. Bulbena-Cabre additionally opined that Plaintiff s impairment would cause her to be absent from work no more than once per month. AR 1508.
In giving “little weight” to the opinion of treating source Dr. Bulbena-Cabre, ALJ Beekman found that
[Dr. Bulbena-Cabre] noted that she only saw [Plaintiff] 4 times, with the first visit being January 14, 2020. She noted [Plaintiff s] case was closed due to inconsistent follow-up. hi the checklist portion, she noted none-mild-moderate limitations in the mental functional areas. Some of the report is illegible; for example, she circles two boxes in the absenteeism area. She notes [Plaintiff s] symptoms related back to 2015, but she does not explain the discrepancy between the treating relationship only dating back to 2020, and her noting [Plaintiff s] symptoms related back to 2015.AR 964. Plaintiff maintains that ALJ Beekman wrongly “wholly reject[ed]” Dr. Bulbena-Cabre's opinions “on the basis that the opinions were based on a course of treatment that started after the date last insured,” and that Dr. Bulbena-Cabre's opinions are supported by the treatment records for the period prior to the date last insured. Pl.'s Mem. at 18-19. The Com! disagrees.
ALJ Beekman appropriately declined to give “controlling weight” to Dr. Bulbena-Cabre's opinions, and provided “good reasons to rebut the presumption of confrolling deference conferred on the treating physician's opinion.” Castorina, 2023 WL 4229250, at *1. Although Plaintiff asserts that Dr. Bulbena-Cabre “treated [her] regularly even if not for a long period of time,” Pl.'s Mem. at 21, the treatment records show considerably more limited interactions. The record reflects only three appointments with Dr. Bulbena-Cabre-on January 14, February 25, and April 24, 2020. See AR 1520-26. Plaintiff then had two appointments at the same clinic starting a year and a half later to “re-establish[ ]... outpatient psychiatric care” with Dr. Yi Ling Li (on October 13, 2021), and with Dr. Galina Isakov (on November 15, 2021), when Dr. Bulbena-Cabre was on maternity leave. See AR 1526-33. Indeed. Dr. Bulbena-Cabre herself cited her limited treatment relationship with Plaintiff in the questionnaire, noting that Plaintiff s case was closed due to inconsistent follow-up care and that “further [follow-up]” would be necessary for Dr. Bulbena-Cabre “to provide an accurate answer” with respect to clinical findings supporting her diagnoses and assessment. AR 1504, 1506. Further, as for whether Plaintiff experienced “episodes of decompensation or deterioration in a work or work-like setting which cause[d] [her] to withdraw from the situation and/or experience an exacerbation of symptoms,” Dr. Bulbena-Cabre noted, “Unknown Patient seen only 4 times.” AR 1506. The ALJ appropriately considered the frequency and duration-or lack thereof-of Plaintiff s treatment relationship with Dr. Bulbena-Cabre in deciding to discount her opinion. See 20 C.F.R. § 404.1527(c)(2)(i) (“Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion.”); see also Steven H. v. Conun 'r of Soc. Sec., No. 20-CV-1472 (FPG), 2022 WL 263060, at *4 (W.D.N.Y. Jan. 28, 2022) (upholding ALJ's decision to assign “partial weight” to treating physician's opinions where “the only treatment records from [the treating physician] are from seven encounters ..., mostly for medication management” and it was “therefore not clear that [the treating physician] had a long or extensive treatment relationship with Plaintiff'); Santiago v. Barnhart, 441 F.Supp.2d 620, 629 (S.D.N.Y. 2006).
hi discounting Dr. Bulbena-Cabre's opinions, the ALJ also noted the lack of supportability, citing Dr. Bulbena-Cabre's failure to explain “the discrepancy between the treating relationship only dating back to 2020, and her noting [Plaintiff s] symptoms related back to 2015,” AR 964, particularly given the limited frequency and duration of Dr. Bulbena-Cabre's treating relationship with Plaintiff. By her own admission. Dr. Bulbena-Cabre was constrained in her ability to “discuss any other clinical findings which support” her opinions. See AR 1506.
ALJ Beekman did not explicitly address the question of whether Dr. Bulbena-Cabre's opinions were consistent with the record as a whole, and what impact this had on his decision to assign little weight to those opinions. Notably, however, Dr. Bulbena-Cabre's assessments of almost exclusively “none-mild-moderate limitations in the mental fimctional areas,” AR 964, were consistent with the treatment records from the relevant period. As detailed by ALJ Beekman, on October 18, 2010, Plaintiff reported to her internist that she was depressed and had difficulty concentrating at work, and requested a psychiatric referral, but Plaintiff did not actually receive any mental health treatment until nearly six years later, on August 23, 2016. AR 961; See AR 372, 374, 426. At that first mental health treatment visit, treating therapist LMSW Yesenia Delosangeles administered a depression screening, which found that Plaintiff suffered from only moderate depression. AR 426; See AR 961. LMSW Delosangeles's clinical notes for subsequent appointments on October 10, 20, and 28, 2016, and November 18 and 23, 2016, all state that Plaintiff arrived on time, “presented with content affect,” “appeared well gloomed,” denied suicidal/homicidal ideation, and denied auditory/visual hallucinations. AR 441, 444, 447, 450, 453. The ALJ also pointed out that mental status examinations during the relevant period reflected “intact affect, mood, and behaviors”; that Plaintiff “displayed good memory at psychiatric examinations”; that Plaintiff was “alert, active, and oriented at medical visits”; and that Plaintiff “had no unusual perceptions and no obsessions or compulsions.” AR 961; See AR 375, 377, 380, 406, 504, 506.. ALJ Beekman acknowledged that Plaintiff had been “diagnosed with affective disorder on multiple occasions between September 2011 and April 2015,” AR 961; See AR 378 (9/14/2011), 380 (1/18/2012), 383 (2/3/2012), and 705 (4/28/2015) (treatment records all assessing Plaintiff with “DEPRESS PSYCHOSIS-MILD”), and that LMSW Delosangeles diagnosed Plaintiff with dysthymia,. AR 961; See AR 437, 440, 443. But Plaintiff was never prescribed any medication; rather, she received therapeutic counseling. AR 961; see AR 426-27, 432-53.
While Dr. Bulbena-Cabre did assess a moderate-to-marked limitation in Plaintiff s ability to “[t]ravel to unfamiliar places or use public transportation,” AR 1507, this finding was not consistent with other evidence in the record from closer to the relevant period, hi a “Function Report-Adult” that she completed and signed on March 13, 2017, Plaintiff noted that she traveled by using public transportation. AR 311,315. Furthermore, as explained in greater detail, infra, there is nothing in Plaintiff s treatment records from the relevant period that would support a finding that Plaintiff had a marked limitation in this fimctional area.
Treatment records from Plaintiff s primary care physicians during the relevant period also contain negative findings in depression screenings. AR 379, 393, 399, 418; see also AR 505 (negative depression screening at a March 12, 2012 pre-operative examination). Two of the mental status examination records cited by the ALJ as reflecting “intact affect, mood, and behaviors” are actually records of psychosocial screenings conducted on September 1 and September 21, 2016, which noted, in the section for “Affect/Mood/Behaviors” that Plaintiff was “[a]nxious.” See AR 434, 436. The treatment records from Plaintiff s primary care physicians during the relevant period, however, routinely note that Plaintiff demonstrated “appropriate mood and affect,” AR 382, 385, 387, 393, 398; see also AR 407, 414 (“Mental status: alert and oriented. Mood/Affect: pleasant.”), which is consistent with the clinical notes from treating therapist LMSW Delosangeles during the relevant time period, See AR 441, 444, 447, 450, 453 (at October 6, 20, and 28, 2016, and November 18 and 23, 2016 appointments, Plaintiff “presented with content affect”). Depression screenings conducted by LMSW Delosangeles on May 19, 2017, and July 28, 2017, several months after Plaintiff s date last insured, again found that Plaintiff suffered from only moderate depression. See AR 749, 793.
Dysthymia, or persistent depressive disorder, “is a chronic (ongoing) type of depression in which a person's moods are regularly low.” “Persistent depressive disorder,” MedlinePlus, https://niedlineplus.gov/ency/article/000918.htm (last visited 2/13/2024).
The fact that Plaintiff s treatment records from the relevant period are largely consistent with Dr. Bulbena-Cabre's opinions potentially would have been a reason for the ALJ to give those opinions greater weight, but the Court cannot ascribe error to the ALJ's assessment of those opinions here, particularly in light of the limited scope of the treating relationship and Dr. Bulbena-Cabre's admitted lack of support for her opinions, both of which are good reasons for not crediting those opinions. This is especially hue because even if the ALJ had given controlling weight to Dr. Bulbena-Cabre's opinions, it would not have resulted in a finding that Plaintiff suffered from a disabling mental impairment-contrary to Plaintiff s assertion in her briefing, the treatment records from the relevant period neither support, nor are they consistent with, a finding of a disabling mental impairment.
Plaintiff appears to be contending that Dr. Bulbena-Cabre's opinions support a more restrictive RFC than that found by ALJ Beekman. But if anything, the RFC assessed by the ALJ may contain greater restrictions than what would have been called for by Dr. Bulbena-Cabre's opinions. For example, while Dr. Bulbena-Cabre noted that Plaintiff had “none to mild” limitations in her abilities to understand, remember, and cany out detailed instructions, AR 1507, the ALJ nevertheless limited Plaintiff to unskilled work involving “simple (routine) tasks,” AR 959. And whereas Dr. Bulbena-Cabre noted that Plaintiff had “none to mild” limitations in her ability to get along with coworkers without distracting them, AR 1507, the ALJ limited Plaintiff to only “occasional and superficial” interactions with coworkers, AR 959. Overall, Dr. Bulbena-Cabre assessed Plaintiff as suffering from no more than moderate limitations in only a small number of mental activities.. See AR 1507. The Second Circuit has held that moderate limitations in mental functioning are consistent with an RFC for unskilled work-the kind of work the ALJ found Plaintiff could perform. See, e.g, Rushford v. Kijakazi, No. 23-317, 2023 WL 8946622, at *2 (2d Cir. Dec. 28, 2023) (summary order) (“After a thorough, multi-page analysis, the ALJ concluded that, even with his moderate limitations [in four mental areas], Rushford could still engage in ‘unskilled, simple, and routine tasks.' ... And it is well-established that such moderate limitations do not prevent individuals from performing ‘unskilled work.'”) (citing Zabala v. Astrue, 595 F.3d 402, 410-11 (2d Cir. 2010)); McIntyre, 758 F.3d at 152. On balance, the RFC assessed by ALJ Beekman, See AR 959, is consistent with the limitations noted by Dr. Bulbena-Cabre. Accordingly, any failure by ALJ Beekman to afford Dr. Bulbena-Cabre's opinions more weight is not a basis for remand, as assigning greater weight to those opinions would not have changed the RFC.
As previously noted, See footnote 9, supra, the one moderate-to-marked limitation that Dr. Bulbena-Cabre noted has no support in the treatment records from the relevant period.
Finally, it is evident that ALJ Beekman did not explicitly apply all of the Burgess factors in analyzing what weight to assign to Dr. Bulbena-Cabre's opinions-instead, he only specifically addressed the frequency and duration of the treating relationship and the extent to which Dr. Bulbena-Cabre's opinions were (or were not) supported by the length and nature of that treating relationship. But when an ALJ procedurally errs by failing to “explicitly apply the Burgess factors,” “the question becomes whether a searching review of the record assures [the court] that the substance of the rule was not traversed-i.e., whether the record otherwise provides good reasons for assigning little weight to [the treating physician's] opinion.” Estrella, 925 F.3d at 96 (cleaned up). Here, having conducted a “searching review” of the administrative record, the Court concludes that the substance of the treating physician rule was not traversed in connection with the ALJ's evaluation of Dr. Bulbena-Cabre's opinions. Rather, the record regarding Plaintiff s mental impairment during the relevant period-including the treatment records, Plaintiff s statements, and the testimonial evidence, all of which was summarized in ALJ Beekman's decision, See AR 958-61-provides good reasons for him to have declined to assign controlling weight, and instead to have assigned little weight, to Dr. Bulbena-Cabre's opinions. Therefore, ALJ Beekman did not violate the treating physician rule in finding that Dr. Bulbena-Cabre's opinions were entitled to only little weight.
2. Treating Sources-Other Sources
a. LMSW Luis Ramos
Plaintiff contends the ALJ erred by failing to address the opinions of treating therapist LMSW Ramos. Pl.'s Mem. at 21-23. Again, the Court disagrees.
hi a “Psychiatric/Psychological Impairment Questionnaire” filled out on January 31, 2022, LMSW Ramos noted that he had treated Plaintiff since March 11, 2021, and that his most recent exam had taken place on January 6, 2022. AR 1358, 1362. LMSW Ramos opined that Plaintiff s mental limitations dated back only as far as 2018, years after Plaintiff s date last insured. AR 1362. Accordingly, his opinions are irrelevant to the ALJ's decision. See Vilardi v. Astrue, 447 Fed.Appx. 271, 272 (2d Cir. 2012) (summary order) (The plaintiff was “required to demonstrate that she was disabled as of... the date on which she was last insured .... Consequently, her reliance on evidence demonstrating worsening of her condition after that date is of little value.”). ALJ Beekman did not err in failing either to acknowledge or address any opinions offered by LMSW Ramos. Cf Water v. Chater, No. 93-cv-6240, 1995 WL 791963, at *9 (S.D.N.Y. Sept. 26, 1995) (concluding that ALJ's failure to discuss a treating physician's report was harmless error because doing so would not have changed ALJ's decision)..
ALJ Beekman actually may have referenced LMSW Ramos's opinions when he discussed a questionnaire (at Exhibit 22F) that he attributed to Nurse Practitioner (“NP”) Guilaine Evariste. See AR 963. While the questionnaire that is Exhibit 22F lists NP Evariste on the first page in the box labeled “Doctor's name,” the signature block on the last page of the questionnaire indicates that the form was completed by LMSW Ramos. See AR 1358, 1362. ALJ Beekman grouped his discussion of this questionnaire with his discussion of two questionnaires completed by a Dr. Lifflander regarding Plaintiff s physical impairments. See AR 963 (citing questionnaires from Dr. Lifflander at Exhibits 24F and 25F [AR 1375-88]). The ALJ gave “no weight” to any of these questionnaires because they were filled out “more than 5 years after [Plaintiff s] date last insured,” were “internally inconsistent” regarding when Plaintiff first began treatment, and provided “minimal narrative” and “virtually no evidence in support of the findings.” Id. Regardless of whether any of these critiques actually were directed at LMSW Ramos's opinions, the ALJ did not err in giving LMSW Ramos's opinions no weight because, as stated above, they were irrelevant.
b. LCSW Adolfo Marrero
Meanwhile, LCSW Marrero completed a “Psychiatric/Psychological Impairment Questionnaire” on December 9, 2019, AR 1390-94, in which he opined that Plaintiff suffered from “marked” limitations in all areas of mental functioning except for a “moderate-to-marked” limitation in maintaining socially appropriate behavior and a “moderate” limitation in adhering to basic standards of neatness. AR 1393.
ALJ Beekman assessed LCSW Marrero's opinions as follows:
The “psychiatric/Psychological Impairment Questionnaire” completed by Dr. Adolfo Marerro [wc], is given little weight. He noted that [Plaintiff] has diagnoses of generalized anxiety disorder and dysthymia. He completed a checklist page marking “marked” limitations in most of the mental functional areas. He noted that [Plaintiff] would be absent more than 3 times per month, and finally noted that [Plaintiff s] symptoms had been present since at least August of 2016. (See 26F [AR 1390-94]).
These extreme limitations are inconsistent with the record. Despite Dr. Marrero noting mostly “marked” limitations [Plaintiff] tested positive for moderate depression based on the PHQ-2 depression screening test in August 2016. hi September 2011, [Plaintiff] had appropriate mood and affect (IF: 10 [AR 377]). Dr. Marrero also fails to provide convincing evidence to support his absenteeism findings, hi fact, at mental status
examinations, [Plaintiff] had intact affect, mood, and behaviors (IF:8, 13, 67, 69 [AR 375, 380, 434, 436]). [Plaintiff] also displayed good memory at psychiatric examinations (1F:39; 6F: 146 [AR 406, 690]). [Plaintiff] was alert, active, and oriented at medical visits (IF: 10, 13; 3F;2, 4 [AR 377, 380, 504, 506]). [Plaintiff] also had no unusual perceptions and no obsessions or compulsions (1F:39 [AR 406]). While Dr. Marerro [szc] has a special relationship with [Plaintiff], this form is given little weight for the above reasons.AR 963.
Although the ALJ incorrectly referred to LCSW Marrero as “Dr. Marrero” or “Dr. Marerro,” under the regulations in effect when Plaintiff filed her claim, social workers are not “acceptable medical sources” whose opinions are entitled to controlling weight. 20 C.F.R. §§ 404.1513(a), (d); 404.1527(a)(2), (f)(2). Instead, social workers are defined in the SSA regulations as “other sources.” See 20 C.F.R. § 404.1513(d)(1). While opinions from “other sources” “may be considered with respect to the severity of the claimant's impairment and ability to work,” an ALJ is “free to discount” the assessments of “other sources,” “in favor of the objective findings of other medical doctors.” Genier v. Astrue, 298 Fed.Appx. 105, 108-09 (2d Cir. 2008) (summary order); See AR 961 (citing objective evidence from treatment records from Plaintiff s medical providers)..
An ALJ is not required to evaluate the Burgess factors when assigning weight to opinions from treating providers who are not “acceptable medical sources.” See Peter B. v. Kijakazi, No. 20-cv-966 (TOF), 2022 WL 951689, at *9 (D. Conn. Mar. 30, 2022); 20 C.F.R. § 404.1527(f).
Here, the ALJ properly evaluated LCSW Marrero's opinions, finding that even though Plaintiff had a “special relationship” with LCSW Marrero as her treating therapist, his opinions were inconsistent with, and unsupported by, the treatment records from the relevant period. As explained in Section II.B.l, supra, Plaintiff s treatment records from prior to December 31, 2016, including those cited by the ALJ in his decision, do not support a finding that Plaintiff suffered from a disabling mental impairment prior to her date last insured. Moreover, contrary to Plaintiff s assertion, See Pl.'s Mem. at 23, LCSW Marrero's opinions that Plaintiff was markedly limited in almost all aspects of mental functioning and would be absent from work more than three times per month are not consistent with Dr. Bulbena-Cabre's opinions, which stated that Plaintiff was not markedly limited in any aspect of mental functioning and would be absent from work no more than once per month. Nor are LCSW Marrero's opinions consistent with those of LMSW Ramos. Critically, while LCSW Marrero opined that Plaintiff s limitations dated back to August 2016, AR 1394, LMSW Ramos's opinions only covered a period dating back to 2018, well after Plaintiff s date last insured, AR 1362. And in sharp contrast to LCSW Marrero, even for the period of time that LMSW Ramos's opinions did cover, he did not conclude that Plaintiff suffered from almost all marked limitations in mental functioning. Instead, LMSW Ramos left blank 14 out of the 23 check-off items regarding Plaintiff s mental functional limitations, and with respect to the remaining nine items, he assessed only none-to-mild limitations (six items).or moderate limitations (three items)..
This included all of Plaintiff s mental functioning related to understanding and memory, as well as her ability to maintain attention and concentration for extended periods, perform activities within a schedule and consistently be punctual, and sustain ordinary routine without supervision. AR 1361.
This included Plaintiff s ability to cany out simple, one-to-two step instructions; cany out detailed instructions; and work in coordination with or near others without being distracted by them. AR 1361.
For all of these reasons, the ALJ's decision to assign little weight the “other source” opinions of LCSW Marrero is not a legal error that requires remand.
3. Independent Medical Examiner-Dr. Marisol Valencia-Payne
Plaintiff also maintains that the ALJ erred in giving little weight to the opinions from one-time independent medical examiner Dr. Valencia-Payne. Pl.'s Mem. at 23-24. ALJ
Beekman explained his analysis of Dr. Valencia-Payne's opinions as follows:
[Plaintiff] was referred to Dr. Payne for an assessment on January 13, 2020, approximately three years after the relevant period ended. Dr. Payne noted, “Patient's cunent psychiatric condition is significantly impairing her current level of functioning. Patient is currently experiencing significant distress, anxiety, trauma-related symptoms and anxiety, and persistent depression, which also severely affect her sleep (disrupted sleep and severe insomnia), interpersonal/relationships, occupational abilities, financial stability, and day to day routine and functioning. Patient would likely experience episodes of significant decompensation or deterioration in a work or work-like setting, which would cause her to withdraw from the situation and/or experience an exacerbation of symptoms. Based on this evaluation, Patient would be likely to be absent from work more than three times per month, as a result of Patient's impairment, hi my best clinical opinion, the Patient's symptoms and related limitations as detailed in this evaluation apply as far back as 1/01/2011.” (30F:4 [AR 1405]). She also completed an impairment questionnaire noting moderate-to-marked, and marked limitations, as well as stating that [Plaintiff] would miss at least 3 days of work per month. (See 29F [AR 1397-1401]). These extreme findings are inconsistent with the evidence during the relevant period. [F]irst, it appears that Dr. Payne relied almost entirely on the subjective allegations of [Plaintiff] from this one-time exam. Dr. Payne has no treating relationship with [Plaintiff], as this was the only time she had ever seen [Plaintiff]. While Dr. Payne notes that “records were reviewed,” her limitations are inconsistent with the records from that time, which were generally normal as noted above. Additionally, a Beck Depression Inventory was administered, and [Plaintiff s] score of 54 indicated, “Patient consciously admit[s] to severe levels of clinical depression.” This test is inconsistent with the PHQ-2 depression screening test completed in August of 2016 (during the relevant period), which noted only moderate depression (1F:59 [AR 426]). Lastly, Dr. Payne's report is internally inconsistent with her own findings. Despite her noting [Plaintiff s] marked limitations in the mental functional areas, she also noted that [Plaintiff], “appears her chronological age and is dressed appropriately. She remained cooperative, engaged, and compliant with the evaluation process. Patient offered personal information and details regarding her history of mental health issues, trauma, and stressors. Patient denies any history of mania, hypomania, audio/olfactory hallucinations, or other
psychotic processes; she did not exhibit delusional thought processes or other perceptual disturbances. Patient reports feeling depressed, and her affect was appropriate to the context; mood is congruent with content.” (30F:3 [AR 1404]). For these reasons, I give the reports of Dr. Payne little weight.AR 964.
The Second Circuit has “frequently cautioned that ALJs should not rely heavily on the findings of consultative physicians after a single examination. This concern is even more pronounced in the context of mental illness where ... a one-time snapshot of a claimant's status may not be indicative of [his or] her longitudinal mental health.” Estrella, 925 F.3d at 98 (cleaned up). ALJ Beekman's decision to assign little weight is in accord with this guidance, and the reasons for his assessment are well and thoroughly explained. Plaintiff contends that the ALJ erred because Dr. Valencia-Payne's opinions were based on evidence and medical findings “confirmed by all the treating specialists, as well as found in the records from before the date last insured.” Pl.'s Mem. at 23. But as the Court has already explained, the medical evidence from the relevant period do not support findings of marked limitations in mental functioning or a high level of absenteeism, and the ALJ therefore appropriately discounted the medical opinions of Plaintiff s treating sources in part on this basis. To the extent that Dr. Valencia-Payne's medical findings conflict with those in the treatment records from the relevant period, “[g]enuine conflicts in the medical evidence are for the Commissioner to resolve.” Veitio v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); see Cage v. Comm 'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (“hi our review, we defer to the Commissioner's resolution of conflicting evidence.”).
Accordingly, the ALJ was entitled to resolve conflicts in the medical evidence and discount Dr. Valencia-Payne's opinions in light of the other evidence in the record.
III. The ALJ's RFC Determination
Plaintiff challenges ALJ Beekman's failure to “give any probative weight to the numerous medical opinions in the record” in determining Plaintiff s RFC, and maintains that the ALJ's RFC determination is not linked to any evidence in the record and thus lacks a factual foundation. See Pl.'s Mem. at 24-25. Again, the Court disagrees.
It is well settled that “the ALJ's RFC conclusion need not perfectly match any single medical opinion in the record, so long as it is supported by substantial evidence.” Schillo, 31 F.4th at 78. Although an ALJ's RFC determination “may not perfectly correspond with any of the opinions of medical sources cited in his [or her] decision, he [or she] [is] entitled to weigh all of the evidence available to make an RFC finding that [is] consistent with the record as a whole.” Matta v. Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013) (summary order); see Cook v. Comm 'r of Soc. Sec., 818 Fed.Appx. 108, 109 (2d Cir. 2020) (summary order) (“[Although there was no medical opinion providing the specific restrictions reflected in the ALJ's RFC determination, such evidence is not required when the record contains sufficient evidence from which an ALJ can assess the [claimant's] [RFC].”) (quotation marks omitted). Moreover, “no other medical evidence in the record indicates that [Plaintiff] faced any limitations not reflected in the ALJ's RFC.” Cook, 818 Fed.Appx. at 109. Indeed, as described above, See Section II.B.l, supra, the treatment records from during the relevant period reflect that Plaintiff suffered from moderate depression, and otherwise was alert and oriented, with an appropriate mood and affect, good memory, no unusual perceptions, and no obsessions or compulsions. This evidence supports the ALJ's RFC determination. See Lopez v. Couuu 'r of Soc. Sec., No. 18-CV-7564 (JGK) (SDA), 2020 WL 364861, at *18-19 (S.D.N.Y. Jan. 4, 2020) (substantial evidence, including normal mental status examinations, supported an RFC for “unskilled, low-stress work with no public contact and occasional contact with co-workers and supervisors”), adopted by 2020 WL 364172 (S.D.N.Y. Jan. 22, 2020); see also Sanders v. Comm 'r of Soc. Sec., No. 18-CV-1402 (DB), 2019 WL 6050299, at *7 (W.D.N.Y. Nov. 15, 2019) (“Even if there is no supportive functional assessment from a physician, the RFC can still be supported by substantial evidence, including treatment notes and Plaintiff s own testimony.”) (citing cases). And even though the ALJ assigned little weight to the opinions of treating psychiatrist Dr. Bulbena-Cabre, it bears repeating that the ALJ's RFC determination was consistent with-and if anything, more restrictive than-her opinions regarding Plaintiff s mental fictional limitations.
Furthermore, the ALJ did a thorough review not only of the medical evidence and opinion evidence, but also of the other evidence in the record for the relevant period, in making his RFC determination. See AR 958-64. The ALJ considered Plaintiff s subjective complaints, See Section IV, infra, as well as Plaintiff s hearing testimony. As summarized by the ALJ, in her testimony with respect to her mental impairment, Plaintiff “noted that she had a lot of depression and anxiety. She noted that she was emotionally shutting down. She had trouble with concentration. She was withdrawn from people. [S]he stated that she became homeless during that time. [S]he noted difficulty with sleeping.” AR 960; See AR 993-99 (Plaintiff testified that during the period from 2011 to 2016, she suffered from depression that caused her “a lot of anxiety, a lot of sadness”; that she had “no motivation to do anything”; that she suffered from anxiety and panic attacks “once a week”; that she had PTSD causing flashbacks weekly; that she had issues with attention and concentration; that she withdrew “from a lot of people”; that she had problems remembering to take medications and turn off the stove; and that she suffered from insomnia).
This evidence was incorporated into ALJ Beekman's RFC findings. He explained the foundation for his determination as follows:
Based on [Plaintiff s] trouble concentrating and her feeling down, depressed, or hopeless, I have limited [Plaintiff] to simple, routine tasks. Based on [Plaintiff] isolating herself, issues with family members, and therapeutic treatment goals including increasing social activities, I have limited [Plaintiff] to occasional and superficial interactions with [the] public, and co-workers. There is limited evidence in the record prior to [Plaintiff s] date last insured; nevertheless, considering the treatment records discussed above, and given [Plaintiff s] testimony, subjective complaints, and the hearing testimony and letters from family and friends, [. I find moderate limitations and the above residual functional capacity due to mental impairments, but the degree of limitation [Plaintiff] is alleging with regard to her mental impairment is not supported by a preponderance of evidence.AR 964-65. ALJ Beekman thus took into consideration all of the evidence in the record regarding the relevant period, and his RFC finding is supported by substantial evidence. See Matta, 508 Fed.Appx. at 56 (an ALJ is “entitled to weigh all of the evidence available to make an RFC finding that [is] consistent with the record as a whole.”).
ALJ Beekman reviewed and considered letters and hearing testimony from Plaintiff s daughter, Felicia Carballo-Diaz, and her friend, Sarah Maxwell-Jones. See AR 958, 961 (citing Ex. 7F [AR 734-39] and AR 200-03).
IV. The ALJ's Evaluation of Plaintiff's Subjective Statements
Finally, Plaintiff maintains that the ALJ improperly evaluated her subjective statements. See Pl.'s Mem. at 25- 29. hi accordance with SSA regulations, an ALJ is required to consider all of the evidence in a claimant's record in evaluating the intensity, persistence, and limiting effects of a claimant's symptoms. SSR 16-3p, 2017 WL 5180304, at *2 (S.S.A. Oct. 25, 2017). SSA regulations set forth a two-step process for evaluating a claimant's subjective complaints about his or her symptoms and the effect they have on the claimant's ability to work. First, the ALJ determines whether the claimant suffers from a “medically determinable impairment that could reasonably be expected to produce [his or her] symptoms, such as pain.” 20 C.F.R. § 404.1529(c)(1). If the ALJ determines that to be the case, then in the second step, the ALJ determines “the extent to which [the claimant's] symptoms limit [his or her] capacity for work.” 20 C.F.R. § 404.1529(c).
“An ALJ ‘is not required to accept the claimant's subjective complaints without question' and may instead ‘exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.'” Rushford, 2023 WL 8946622, at *3 (quoting Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)). When evaluating the intensity, persistence, and limiting effects of a claimant's symptoms, SSA regulations require the ALJ to consider all available evidence, including objective medical evidence and information regarding (i) the claimant's daily activities; (ii) the location, duration, frequency, and intensity of his or her pain or other symptoms; (iii) any precipitating and aggravating factors; (iv) the type, dosage, effectiveness, and side effects of any medications taken; (v) treatment other than medication used to relieve the claimant's pain or other symptoms; (vi) any measures used to relieve his or her pain or other symptoms; and (vii) other factors concerning functional limitations and restrictions resulting from the claimed pain or other symptoms. 20 C.F.R. § 404.1529(c)(3)(i)-(vii); SSR 163p, 2017 WL 5180304, at *7-8. “It is the role of the Commissioner, not the reviewing court, to resolve evidentiary conflicts and to appraise the credibility of witnesses, including with respect to the severity of a claimant's symptoms.” Cichocki v. Astrue, 534 Fed.Appx. 71, 75 (2d Cir. 2013) (summary order) (quotation marks omitted). “While it is not sufficient for the ALJ to make a single, conclusory statement that the claimant is not credible or simply to recite the relevant factors, remand is not required where the evidence of record pennits [the court] to glean the rationale of an ALJ's decision.” Id. at 76 (cleaned up).. Where an ALJ provides specific reasons for discounting a claimant's testimony regarding her symptoms, the ALJ's determination “is generally entitled to deference on appeal.” Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013) (per curiam)', see also Calabrese v. Astrue, 358 Fed.Appx. 274, 277 (2d Cir. 2009) (summary order) (“[W]here the ALJ's decision to discredit a claimant's subjective complaints is supported by substantial evidence, [the court] must defer to his [or her] findings.”).
The SSA has eliminated the use of the term “credibility” in its sub-regulatory policy because SSA regulations do not use this term. See SSR 16-3p, 2017 WL 5180304, at *2 (Oct. 25, 2017). As the SSA explained, “subjective symptom evaluation is not an examination of an individual's character.” Id. Adjudicators are required to “evaluate the intensity and persistence of an individual's symptoms” to “determine how symptoms limit ability to perform work-related activities for an adult....” Id. Nonetheless, case law-especially from prior to the SSA's 2017 regulatory change-still uses the term credibility in discussing the ALJ's evaluation of a plaintiff s subjective complaints.
ALJ Beekman found that Plaintiff s statements about the intensity, persistence, and limiting effects of her symptoms were “only partially consistent with both the objective and subjective evidence of record, because the treatment notes do not show the serious symptoms and dysfunction that would be expected were [Plaintiff] as limited as alleged.” AR 960-61. Plaintiff contends that the ALJ “failed to indicate if she considered a single relevant factor in evaluating Ms. Marrero's allegations.” Pl.'s Mem. at 28. This is not accurate. ALJ Beekman discussed Plaintiff s treatment during the relevant period, noting that
[i]n October 2010, six months before the alleged onset date, [Plaintiff] visited her doctors with complaints of depression and difficulty concentrating at work (1F:5 [AR 372]). [Plaintiff] requested a psychiatric referral at that time, but she did not receive treatment until August 2016 (1F:7 [AR 374]; 1F:59 [AR 426]). [Plaintiff] admitted to being non-compliant with treatment and declined previous recommendations because of her religion (IF: 111 [AR 478]). The claimant was diagnosed with affective disorder on multiple occasions between September 2011 and
April 2015 (1F:11 [AR378., 13 [AR 380], 16 [AR 383]; 6F: 116 [AR 660], 118 [AR 662., 160[.). The claimant was also diagnosed with dysthymia by Yesenia Delosangeles, LMSW. (1F:7O [AR 437], 73 [AR 440], 76 [AR 443]). The claimant was not prescribed any medication for her affective disorder, but the claimant received therapeutic counseling (IF: 11, 13, 16, 59, 65 [AR 432], 67 [AR 434]).AR 961. The ALJ was permitted to consider Plaintiff s failure to follow through on the referral and obtain treatment as part of the decision not to credit Plaintiff s statements regarding the extent of her limitations due to her mental impairment. See Navan v. As true, 303 Fed.Appx. 18, 20 (2d Cir. 2008) (summary order) (“[The plaintiff s] claims of total disability were undermined by his failure to seek regular treatment for his allegedly disabling condition.”); Salvaggio v. Apfel, 23 Fed.Appx. 49, 51 (2d Cir. Nov. 6, 2001) (summary order) (“the result of the plaintiffs choice to seek only minimal medical attention of her symptoms . .. supports the finding that the plaintiff was not under a disability”); SSR 16-3p, 2017 WL 5180304, at *9 (“We will consider an individual's attempts to seek medical treatment for symptoms and to follow treatment once it is prescribed when evaluating whether symptom intensity and persistence affect the ability to perform work-related activities ....”). Indeed, Plaintiff s lack of treatment for any mental impairment during over five years of an approximately five-and-a-half-year relevant period supports the ALJ's conclusion that Plaintiff s mental limitations were not disabling. Cf DePasquale v. Conun 'r of Soc. Sec., No. 18-CV-1500 (HKS), 2020 WL 3791472, at *4 (W.D.N.Y. July 7, 2020) (where the plaintiff s treatment for mental impairments “was limited to medication from her primary care physician,” the district court concluded that “[t]his dearth of treatment supports the ALJ's finding that Plaintiff s mental impairments were not severe.”) (citing cases); see also Snyder v. Conun 'r of Soc. Sec., No. 22-277-cv, 2023 WL 1943108, at *3 (2d Cir. Feb. 13, 2023) (summary order) (An ALJ “is entitled to rely not only on what the record says, but also on what it does not say. After all, it is the claimant's burden to prove a more restrictive RFC, and a lack of supporting evidence on a matter for which the claimant bears the burden of proof, particularly when coupled with other inconsistent record evidence, can constitute substantial evidence supporting a denial of benefits.”) (cleaned up).
The treatment records for Plaintiff s appointments with her primary care physicians Dr. Priti Borker and Dr. Robert Jones list under “Assessment,” “DEPRESS PSYCHOSIS-MILD.” AR 378, 380, 383, 705.
AR 662 is a duplicate of AR 378.
The ALJ erroneously cited Exhibit 6F:160; the page containing this diagnosis is actually the next page of the same medical record, Exhibit 6F:161 [AR 705].
Moreover, elsewhere in his decision, in the context of step three of the disability analysis, ALJ Beekman explained how Plaintiff s statements were at odds with other evidence in the record. See AR 958-59. He noted that while Plaintiff “reported that she has trouble remembering things and that she forgets to take medication, [AR 310],” and “stated that she cannot follow written instructions, [AR 315],” Plaintiff “displayed good memory at psychiatric examinations, [AR 406],” “reported that she did not need reminders to take [care] of her personal needs and glooming, [AR 310],” and “stated that she cleans, prepares meals, and is a pastor at her church, [AR 310, 421, 432].” While Plaintiff “reported that she isolates herself and does not spend time with others, [AR 312, 434],” she also “stated that she does not have any problems getting along with others, [AR 313],” “goes grocery shopping with her neighbor's friends, [AR 311],” “traveled to Florida to preside over a wedding, [AR 724],” and “displayed appropriate mood and affect at mental status examinations, [AR 380, 382, 385].” Although Plaintiff “reported that she does not engage in hobbies because she is depressed, [AR 312],” “stated that she has problems paying attention and cannot concentrate, [AR 314.,” and “reported that she cannot finish what she starts because she is disoriented and cannot focus, [AR 314],” she was alert and was cognitively intact at psychosocial screenings, [AR 434, 436], and in a depression screening, Plaintiff “responded ‘not at all' to feeling tired or having little energy, [AR 426],” “goes to church at least twice a month, [AR 312],” and “also reported that she walks more than one hour each day and exercises at the gym twice a week, [AR 504, 673, 707].” Finally, while Plaintiff “stated that stress or changes overwhelm and disorient her, and she becomes anxious, [AR 315.,” she “reported that she can perform activities of daily living independently, [AR 434, 436],” and “reported that she was a pastor at her church and incorporated a ministry about two years ago, [AR 432].”
While ALJ Beekman cited Exhibit 4E:5 [AR 312] for this point and the next point, the cited information is actually contained two pages later within the same exhibit, at 4E:7 [AR 314],
While ALJ Beekman cited Exhibit 4E:7 [AR 314] for this point, the cited infonnation is actually contained one page later within the same exhibit, at 4E:8 [AR 315].
ALJ Beekman thus did consider how Plaintiff s statements regarding her limitations were inconsistent with medical record evidence as well as her daily activities and her treatment history during the relevant period. Taken as a whole, the ALJ did not err in his evaluation of Plaintiff s subjective statements regarding her mental functional limitations. See Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiani) (“[A]lthough we would remand for further findings or a clearer explanation where we could not fathom the ALJ's rationale in relation to evidence in the record, we would not remand where we were able to look to other portions of the ALJ's decision and to clearly credible evidence in finding that his [or her] determination was supported by substantial evidence.”) (quotation marks omitted). As noted above, “remand is not required where the evidence of record pennis [the court] to glean the rationale of an ALJ's decision.” Cichocki, 534 Fed.Appx. at 76 (quoting Mongeur, 722 F.2d at 1040). Here, the Court's independent and thorough review of the record has allowed it to “glean the rationale” of the ALJ's determination not to credit Plaintiff s statements about the severity of her symptoms, and the Court finds that such determination is supported by substantial evidence and therefore entitled to deference.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff s motion for judgment on the pleadings (ECF No. 12) be DENIED, that the Commissioner's motion for judgment on the pleadings (ECF No. 15) be GRANTED, and that judgment be entered in favor of the Commissioner.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kenneth M. Karas, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Karas, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).