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holding two-year-old medical opinion was not "stale" where subsequent treatment records did not show plaintiff's "condition significantly deteriorated" thereafter
Summary of this case from Karen S. v. Comm'r of Soc. Sec.Opinion
1:19-CV-00121 EAW
2020-01-30
Amanda Leigh LESANTI, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Justin M. Goldstein, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff. Andreea Laura Lechleitner, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Justin M. Goldstein, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff.
Andreea Laura Lechleitner, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, plaintiff Amanda Leigh Lesanti ("Plaintiff") brings this action pursuant to Titles II and XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 8; Dkt. 9), and Plaintiff's reply (Dkt. 10). For the reasons discussed below, the Commissioner's motion (Dkt. 9) is granted and Plaintiff's motion (Dkt. 8) is denied.
BACKGROUND
Plaintiff protectively filed her applications for DIB and SSI on June 30, 2015. (Dkt. 7 at 19, 74). In her applications, Plaintiff alleged disability beginning April 1, 2015, due to bipolar disorder. (Id. at 21, 60). Plaintiff's applications were initially denied on September 28, 2015. (Id. at 76-83). At Plaintiff's request, a video hearing was held before administrative law judge ("ALJ") Lisa B. Martin on October 11, 2017, with Plaintiff appearing in Buffalo, New York, and the ALJ presiding over the hearing from the National Hearing Center, Falls Church, Virginia. (Id. at 35-59). On April 19, 2018, the ALJ issued an unfavorable decision. (Id. at 16-34). Plaintiff requested Appeals Council review; her request was denied on November 30, 2018, making the ALJ's determination the Commissioner's final decision. (Id. at 5-10). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA") ], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Parker v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings"). Id. §§ 404.1520(d), 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. §§ 404.1509, 416.909), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. §§ 404.1520(e), 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. §§ 404.1520(f), 416.920(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. §§ 404.1520(g), 416.920(g). To do so, the Commissioner must present evidence to demonstrate that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of the claimant's age, education, and work experience. Rosa v. Callahan , 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted); see also 20 C.F.R. § 404.1560(c).
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. §§ 404.1520 and 416.920. Initially, the ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2019. (Dkt. 7 at 21). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since April 1, 2015, the alleged onset date. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of bipolar disorder, anxiety disorder with social phobias, antisocial personality disorder, and history of alcohol and substance abuse. (Id. ).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. ). The ALJ particularly considered the requirements of Listings 12.04, 12.06, and 12.08 in reaching this conclusion. (Id. at 22-23).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform a full range of work at all exertional levels, with the additional non-exertional limitations that:
[Plaintiff] is limited to no ladder, rope, or scaffold climbing, and no exposure to dangerous work hazards (unprotected heights and exposed moving machinery). [Plaintiff] is limited to routine, simple tasks not requiring a fast assembly quota pace, requiring no more than occasional work interactions with coworkers and supervisors, not involving any public contact work, and allowing for up to five percent off-task behavior.
(Id. at 23-24).
At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 28).
At step five, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of housekeeping/motel cleaner and janitor/industrial cleaner. (Id. at 29). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act at any time from the alleged onset date through the date of the ALJ's decision. (Id. at 29-30).
II. The Commissioner's Determination is Supported by Substantial Evidence and Free from Legal Error
Plaintiff asks the Court to reverse or, in the alternative, to remand this matter to the Commissioner, arguing: (1) the ALJ's RFC finding was unsupported by substantial evidence; and (2) the ALJ's credibility assessment was unsupported by substantial evidence. (Dkt. 8-1 at 12-30). The Court has considered these arguments and, for the reasons discussed below, finds them to be without merit. A. The ALJ's RFC Assessment is Supported by Substantial Evidence
In deciding a disability claim, an ALJ is tasked with "weigh[ing] all of the evidence available to make an RFC finding that [is] consistent with the record as a whole." Matta v. Astrue , 508 F. App'x 53, 56 (2d Cir. 2013). An ALJ's conclusion need not "perfectly correspond with any of the opinions of medical sources cited in his decision." Id. However, an ALJ is not a medical professional, and "is not qualified to assess a claimant's RFC on the basis of bare medical findings." Ortiz v. Colvin , 298 F. Supp. 3d 581, 586 (W.D.N.Y. 2018) (quotation omitted). "[A]s a result[,] an ALJ's determination of RFC without a medical advisor's assessment is not supported by substantial evidence." Dennis v. Colvin , 195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016) (quotation omitted). In this case, the ALJ relied on the opinions of consultative examiner Dr. Christine Ransom, treating nurse practitioner ("NP") David Pfalzer, and mental health counselor ("MHC") Ellen Lyons in assessing Plaintiff's RFC. (Dkt. 7 at 26-27). In particular, the ALJ gave great weight to Dr. Ransom's opinion, some weight to NP Pfalzer's opinion, and some weight to MHC Lyons' opinion. (Id. ). The ALJ also considered, but ultimately gave little weight to, the opinion of state agency medical consultant Dr. S. Juriga. (Id. at 26).
Plaintiff argues that Dr. Ransom's opinion, to which the ALJ gave great weight, was stale because it was submitted "over [two] years prior to the hearing dated October 11, 2017 and [two and a half] years prior to [the] ALJ's decision dated April 19, 2018." (Dkt. 8-1 at 13). "[M]edical source opinions that are conclusory, stale, and based on an incomplete medical record may not be substantial evidence to support an ALJ finding." Camille v. Colvin , 104 F. Supp. 3d 329, 343 (W.D.N.Y. 2015). "A medical opinion may be stale if it does not account for the claimant's deteriorating condition." Carney v. Berryhill , No. 16-CV-269-FPG, 2017 WL 2021529, at *6 (W.D.N.Y. May 12, 2017). However, a medical opinion is not necessarily stale simply based on its age. A more dated opinion may constitute substantial evidence if it is consistent with the record as a whole notwithstanding its age. See Camille v. Colvin , 652 F. App'x 25, 28 n.4 (2d Cir. 2016) (consultative physician's opinion was not rendered stale on the basis of subsequent treatment records and the submission of additional physician's opinions where the opinions were consistent and did not evidence the plaintiff's significant deterioration); Andrews v. Berryhill , No. 17-CV-6368 (MAT), 2018 WL 2088064, at *3 (W.D.N.Y. May 4, 2018) (ALJ did not err in relying on dated opinions where there was no indication the plaintiff's "condition had significantly deteriorated after the issuance of ... [the] opinions such that they were rendered stale or incomplete").
Here, Dr. Ransom rendered her opinion in September 2015, more than two years before the ALJ's decision. However, the time gap alone does not render her opinion stale. Plaintiff does not argue, nor do treatment records show, that Plaintiff's condition significantly deteriorated after Dr. Ransom's September 2015 opinion. (See, e.g. , Dkt. 7 at 433 (despite reporting some suicidal ideation, Plaintiff's June 17, 2017, mental status examination demonstrated no apparent distress, cooperative attitude, appropriate behavior, and organized thought process), 439 (despite reporting some anxiety about the possibility of a C-section, Plaintiff's June 22, 2017, mental status examination demonstrated no apparent distress, cooperative attitude, organized, goal directed thought process), 480 (Plaintiff's June 24, 2017, treatment note indicated she was oriented to person, place and time with euthymic mood and congruent effect, but was not cooperative during session), 520 (Plaintiff's 2016 examinations demonstrate that Plaintiff continued to successfully progress in therapy)). Accordingly, Dr. Ransom's opinion was not stale. Cf. Amrhein Deruchie v. Comm'r of Soc. Sec. , No. 18-CV-227, 2019 WL 5208123, at *8 (W.D.N.Y. Oct. 16, 2019) (the opinion was stale, not because it was rendered two years before the ALJ's decision, but rather because during the interim, the plaintiff had been hospitalized multiple times for attempted suicide and an overdose and the opinion did not account for the significant developments).
Plaintiff also cites Estrella v. Berryhill , 925 F.3d 90, 97 (2d Cir. 2019), and argues the ALJ's reliance on Dr. Ransom's opinion was improper because "[t]he Second Circuit has cautioned against heavy reliance on the findings of consultative physicians after a single examination." (Dkt. 8-1 at 14). Plaintiff's reliance on Estrella is misplaced. In Estrella , the ALJ gave "little weight" to the plaintiff's treating physician's opinion. Estrella , 925 F.3d at 98. The Second Circuit concluded this was error because the ALJ's reliance on the consultative examiner's opinion did not provide a "good reason" for rejecting the treating physician's opinion. Id. However, in this case the record does not contain an opinion from a treating physician, and so the ALJ did not rely on Dr. Ransom's opinion to discount any such opinion. Estrella does not stand for the broad proposition that a consultative physician's opinion can never constitute substantial evidence in support of an ALJ's findings. To the contrary, "it is well-settled that a consulting psychiatric examiner's opinion may be given great weight and may constitute substantial evidence to support a decision." Colbert v. Comm'r of Soc. Sec. , 313 F. Supp. 3d 562, 577 (S.D.N.Y. 2018).
The Court further finds no error in the ALJ's assessment of the consistency of Dr. Ransom's opinion with the evidence as a whole. Dr. Ransom opined that Plaintiff:
will show no evidence of difficulty following and understanding simple directions and instructions, perform simple tasks independently, maintain attention and concentration for simple tasks, maintain a simple regular schedule, [and] learn simple new tasks. She will have mild difficulty performing complex tasks, relate adequately with others and appropriately deal with stress due to bipolar disorder. [Plaintiff's] depressed phase [is] currently mild [and] social phobia [is] currently mild.
(Dkt. 7 at 405). The ALJ gave this opinion "great weight" because it was "generally consistent with the minimal objective abnormalities noted throughout the record when [Plaintiff] is compliant with treatment" and because "Dr. Ransom's findings and opinions [were] internally consistent and consistent with the record as a whole." (Id. at 26).
The ALJ's reasons for affording Dr. Ransom's opinion "great weight" were amply supported by the record. For example, upon being discharged from the Erie County Medical Center ("ECMC") in April 2015, Plaintiff demonstrated appropriate behavior and attitude, appropriate and congruent mood and affect, organized thought process, and intact memory and intelligence. (Dkt. 7 at 216). This was generally consistent with Plaintiff's subsequent examinations at Spectrum Human Services ("Spectrum") which consistently noted that Plaintiff was dressed appropriately, alert and orientated to person, place, and time, denied suicidal or homicidal ideation, paranoia, delusions, auditory or visual hallucinations, and demonstrated intact memory. (See id. at 394, 398, 401, 513-14). Additionally, Spectrum treatment notes were consistent with finding that Plaintiff's condition continued to progress in therapy. (Id. at 520 ("[Plaintiff] has been successful with developing a sense of hope in her life and enhancing her self-confidence" ... "[Plaintiff] has been successful [with] developing her self-restraining techniques and will now be working on thinking skills to regulate her emotions" ... "[Plaintiff] has achieved success with thinking skills to regulate emotions and will manage negative emotions.")). Additionally, Dr. Ransom's opinion was also consistent with MHC Lyons who evaluated Plaintiff on January 18, 2017, and opined that Plaintiff's expected date of employability was immediate. (Id. at 488).
Plaintiff also argues the ALJ erred by failing "to discuss the majority of positive objective findings contradicting Dr. Ransom's opinion." (Dkt. 8-1 at 15). However, "the ALJ need not discuss every piece of evidence to show that it was considered." Shari Lee Z. v. Saul , No. 5:19-CV-0268 (GTS), 2019 WL 6840134, at *4 (N.D.N.Y. Dec. 16, 2019). As such, an ALJ does not mischaracterize the record simply by choosing not to expressly cite every positive objective finding in the record. It is evident from the decision the ALJ thoroughly reviewed the objective medical evidence in the record, which necessarily included such findings. The Court finds the ALJ did not commit error in affording Dr. Ransom's opinion great weight and her reasons for affording it great weight were proper and supported by the record. See Guerra v. Comm'r of Soc. Sec. , No. 1:16-CV-00991 (MAT), 2018 WL 3751292, at *7 (W.D.N.Y. Aug. 7, 2018) ("An ALJ has discretion to weigh the opinion of a consultative examiner and attribute the appropriate weight based on his review of the entire record.").
Plaintiff also argues the ALJ erred in failing to explain how Dr. Ransom's opinion was consistent with NP Pfalzer's August 2015 opinion. (Dkt. 8-1 at 18). The Court finds no error in the ALJ's assessment of NP Pfalzer's opinion. The Court notes initially that, under the regulations applicable to Plaintiff's claim, nurse practitioners are not considered "acceptable medical sources" and so their opinions are not entitled to any particular weight. Here, the ALJ correctly gave "little weight" to NP Pfalzer's conclusion that Plaintiff could not work because such a determination is an issue reserved to the Commissioner. See Halloran v. Barnhart , 362 F.3d 28, 32 (2d Cir. 2004) ("[T]he ultimate finding of whether a claimant is disabled and cannot work is reserved to the Commissioner." (internal quotation, citation, and alteration omitted)). Further, the ALJ properly gave "some weight" to limitations identified by NP Pfalzer. It is clear that the ALJ fashioned her RFC finding by referring to Dr. Ransom's opinion and incorporating limitations identified by NP Pfalzer. For example, the ALJ incorporated NP Pfalzer's opinion that Plaintiff was moderately limited in understanding, remembering, and carrying out instructions, interacting appropriately with others, and functioning at a consistent pace by limiting Plaintiff to routine, simple tasks that do not require a fast assembly quota pace. (Dkt. 7 at 486). Moreover, the ALJ incorporated NP Pfalzer's opinion that Plaintiff was very limited in maintaining socially appropriate behavior by restricting Plaintiff to work that required no contact with the public and no more than occasional work interactions with coworkers and supervisors. (Id. ). As such, contrary to Plaintiff's assertion, NP Pfalzer's opinion regarding Plaintiff's limitations was generally consistent with Dr. Ransom's opinion, further demonstrating the RFC assessment was supported by substantial evidence. Moreover, to the extent the two opinions conflicted, it was within the ALJ's discretion to resolve the conflict. See Martes v. Comm'r of Soc. Sec. , 344 F. Supp. 3d 750, 760 (S.D.N.Y. 2018) ("It is within an ALJ's discretion to resolve ‘genuine conflicts in the medical evidence.’ " (quoting Veino v. Barnhart , 312 F.3d 578, 588 (2d Cir. 2002) ).
Having concluded Dr. Ransom's opinion was not stale and that the ALJ properly relied upon it in addition to NP Pfalzer's opinion, Plaintiff's argument that the ALJ based her RFC assessment upon her own lay opinion also fails. (See Dkt. 8-1 at 19 (arguing that the ALJ relied on her own lay opinion because "the record does not contain an opinion addressing Plaintiff's function-by-function abilities and limitations since September of 2015")). While Plaintiff claims that the ALJ's rejection of Dr. Juriga's assessment is evidence that she was relying on her own interpretation of the medical data (see id. at 18), Dr. Juriga's opinion was inconsistent with Dr. Ransom's opinion, and the ALJ was entitled to resolve the conflict. Moreover, Plaintiff concedes that "the ALJ was correct by affording Dr. Juriga's opinion little weight...." (Id. ).
The Court further rejects Plaintiff's argument that the ALJ improperly limited Plaintiff to 5% off-task time because the limitation was not connected to any evidence in the record. (Dkt. 8-1 at 24). Neither Dr. Ransom nor NP Pfalzer opined that Plaintiff would be off-task for more than 5% of the workday, or indeed for any percentage of the workday. It appears the ALJ credited Plaintiff's testimony that she could not focus and was easily distracted (Dkt. 7 at 44), and assessed a more generous limitation of 5% off-task time. The fact that the ALJ afforded Plaintiff the benefit of the doubt and included a 5% off-task time limitation in the RFC assessment is not grounds for remand. Baker v. Berryhill , No. 1:15-cv-00943-MAT, 2018 WL 1173782, at *4 (W.D.N.Y. Mar. 6, 2018) ("[R]emand is generally not warranted where the ALJ's RFC finding is more restrictive than the limitations set forth in the medical opinions of record.").
Turning next to Plaintiff's argument that the ALJ had a duty to develop the record, the Court notes that Plaintiff made two requests for two-week extensions of time to submit additional evidence. (Dkt. 7 at 214-15). In her most recent November 6, 2017, request, Plaintiff indicated that only Mercy Comprehensive Care ("Mercy") treatment records were outstanding. Yet. Plaintiff now argues the record was missing portions of treatment records from Spectrum, Mid-Erie Counseling and Treatment Services ("Mid-Erie"), and Mercy. (Dkt. 8-1 at 24). An ALJ has a duty to develop the record where there are "gaps in the record," or "when the record serves as an inadequate basis on which to render a decision." Dunne v. Comm'r of Soc. Sec. , 349 F. Supp. 3d 250, 258 (W.D.N.Y. 2018). However, "where there are no obvious gaps in the administrative record, and where the ALJ already possesses a complete medical history, the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim." Id. (quoting Petrie v. Astrue , 412 F. App'x 401, 406 (2d Cir. 2011) ); Reithel v. Comm'r of Soc. Sec. , No. 6:17-CV-06209 EAW, 330 F. Supp. 3d 904, 912 (W.D.N.Y. 2018) ("[T]he [ALJ] need only re-contact sources or obtain additional information where there is a conflict or ambiguity that must be resolved but that cannot be resolved based on the evidence present in the record.").
The Court concludes that the ALJ was not required to further develop the record in this case, because the evidence of record was "adequate to permit the ALJ to make a disability determination." Carvey v. Astrue , 380 F. App'x 50, 53 (2d Cir. 2010). The ALJ had adequate evidence in the record from which she could and did properly assess Plaintiff's RFC, which included: opinion evidence from Dr. Ransom and NP Pfalzer; Dr. Juriga's assessment; MHC Lyon's assessment; Plaintiff's testimony; and Plaintiff's treatment records from ECMC, Mercy, Lakeshore Behavioral Health, Spectrum, and Mid-Erie. In other words, even if there were portions of treatment records missing, there was abundant medical evidence in the record from which the ALJ could and did assess Plaintiff's RFC. See Dunne , 349 F. Supp. 3d at 259 (no duty to develop record where the record contained adequate evidence from which the ALJ assessed the plaintiff's RFC which included the plaintiff's treatment notes and four medical opinions).
Additionally, even if the ALJ's duty to develop the record was triggered, the ALJ satisfied her duty by holding the record open after the hearing and subsequently granting Plaintiff's two requests for two-week extensions. See Sparks v. Berryhill , No. 16-CV-00724-LGF, 2018 WL 4510078, at *3 (W.D.N.Y. Sept. 20, 2018) (where during the hearing the ALJ granted the plaintiff's counsel 30 days to submit additional medical record evidence and granted the plaintiff's counsel's subsequent request for an additional two weeks, the ALJ satisfied his duty to develop the record due as there was no "evidence that [the plaintiff] ever submitted the putative additional records"); Melton v. Colvin , No. 13-CV-6188 (MAT), 2014 WL 1686827, at *8 (W.D.N.Y. April 29, 2014) ("[T]he ALJ satisfied her duty to develop the record by holding the record open after the hearing and subsequently granting Plaintiff's request for an additional 7-day extension.").
Plaintiff also challenges the ALJ's finding that Plaintiff's condition had improved with treatment. The ALJ thoroughly explained the basis for this conclusion, noting that Plaintiff had been discharged from inpatient mental health treatment in April 2015 with significant improvement and that Plaintiff has repeatedly reported that her symptoms were well-controlled with medication. (Dkt. 7 at 25). Moreover, the ALJ did not, as Plaintiff asserts, ignore the fact that mental health conditions may have cycles of waxing and waning symptoms. The ALJ acknowledged Plaintiff's reports that her symptoms "crop[ ] up at times," but assessed the entirety of the record to conclude that Plaintiff's medications were generally effective at controlling her symptoms. (Id. at 25-26). This conclusion by the ALJ was supported by the medical record, including Dr. Ransom's opinion that Plaintiff's prognosis was "fair to good with treatment as recommended." (Id. at 406).
It is ultimately Plaintiff's burden to prove a more restrictive RFC than the RFC assessed by the ALJ. See Smith v. Berryhill , 740 F. App'x 721, 726 (2d Cir. 2018). The ALJ reasonably concluded that Plaintiff failed to meet her burden in this case. In formulating the RFC assessment, the ALJ considered the objective medical evidence, Plaintiff's treatment history, allegations, and the opinions of physicians. As such, the RFC assessment in this case is consistent with the record and is supported by substantial evidence. Accordingly, neither reversal nor remand is warranted.
B. The ALJ's Credibility Finding is Supported by Substantial Evidence
Plaintiff next argues the ALJ did not consider Plaintiff's "subjective statements pursuant to the procedures and other factors set forth in 20 C.F.R. § 416.929." (Dkt. 8-1 at 26). The Court is not persuaded by Plaintiff's argument. In assessing the credibility of a claimant's subjective complaints, the Commissioner's regulations require ALJs to employ a two-step inquiry. Meadors v. Astrue , 370 F. App'x 179, 183 (2d Cir. 2010). "First, the ALJ must determine whether the claimant suffers from a ‘medically determinable impairment[ ] that could reasonably be expected to produce’ " his symptoms. Id. (quoting 20 C.F.R. § 404.1529(c)(1) ). "Second, the ALJ must evaluate the intensity and persistence of those symptoms considering all of the available evidence; and, to the extent that the claimant's [subjective] contentions are not substantiated by the objective evidence, the ALJ must engage in a credibility inquiry." ( Id. ).
In evaluating the intensity, persistence, and limiting effects of an individual's symptoms, the ALJ must consider several factors including:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g. lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
SSR 16-3p, 2017 WL 5180304, at *7-8 (S.S.A. Oct. 25, 2017) ; see also 20 C.F.R. §§ 404.1529(c), 416.929(c). The mere fact that the ALJ did not expressly discuss a factor does not mean it was not considered. See Cichocki v. Astrue , 729 F.3d 172, 177 (2d Cir. 2013) (declining to adopt rule that an ALJ must expressly discuss a claimant's capacity to perform each work-related function, noting "[t]he relevant inquiry is whether the ALJ applied the correct legal standards and whether the ALJ's determination is supported by substantial evidence").
Plaintiff argues that the ALJ erred in finding Plaintiff less than fully credible based on voluntary gaps in treatment because the record demonstrated that Plaintiff actively and consistently received treatment. (Dkt. 8-1 at 27). However, the Court concludes the ALJ's finding was supported by the record. For example, at ECMC on June 21, 2017, Plaintiff reported that she had stopped taking her medication and attending counseling one year prior. (Dkt. 7 at 431). A few months later, Plaintiff was then discharged from Lakeshore on August 7, 2017, due to her "poor attendance." (Id. at 421 ("Minimal progress has been made in therapy due to [Plaintiff's] poor attendance. Writer has attempted to contact [Plaintiff] multiple times with little to no change made in [Plaintiff's] attendance.")). Plaintiff's Spectrum records further reflect Plaintiff's inconsistent participation with treatment. (See id. at 378, 381, 624). In light of the above, the ALJ properly concluded the evidence did not support the severity of limitations as alleged by Plaintiff. See Turner v. Berryhill , No. 1:16-cv-00405 (MAT), 2017 WL 4285902, at *3 (W.D.N.Y. Sept. 27, 2017) (ALJ properly considered the plaintiff's history of non-compliance with her prescribed treatment); Nicholson v. Colvin , No. 6:13-CV-1296 (FJS/TWD), 2015 WL 1643272, at *7 (N.D.N.Y. April 13, 2015) (ALJ properly considered the plaintiff's failure to comply with medical treatment as a factor weighing against her credibility). The ALJ also appropriately fulfilled her duty to consider alternative explanations for Plaintiff's failure to pursue regular treatment, noting that one gap was explained by Plaintiff having been pregnant, but that other gaps were unexplained. (Dkt. 7 at 25); see SSR 16-3p, 2017 WL 5180304, at *9 ("[I]f the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record. We will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints.").
Plaintiff next argues the ALJ inappropriately considered Plaintiff's daily activities as undercutting Plaintiff's allegations. However, as noted above, SSR 16-3p expressly permits an ALJ to consider Plaintiff's daily activities, among other factors, in assessing the credibility of Plaintiff's subjective complaints. In this case, at the time of Dr. Ransom's examination, Plaintiff was working fulltime, which was evidence from which the ALJ could properly infer that Plaintiff's limitations were not as severe as she alleged. See 20 C.F.R. §§ 404.1571, 416.971 ("Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did."); Rivers v. Astrue , 280 F. App'x 20, 23 (2d Cir. 2008) (the plaintiff's work activity during the relevant period "support[ed] the ALJ's conclusion that [the plaintiff] had the residual functional capacity ... to perform a full range of light work during the relevant periods"). Additionally, Plaintiff indicated that she lived alone, drove a car, was the primary caretaker for her three children (five-year-old twins and a four-year-old), and socialized with family and friends. The ALJ properly considered Plaintiff's daily and work activities as factors, among others, in assessing Plaintiff's credibility. See Killings v. Comm'r of Soc. Sec. , No. 15 Civ. 8092 (AT) (JCF), 2016 WL 4989943, at *14 (S.D.N.Y. Sept. 16, 2016) (the ALJ properly considered that the plaintiff took her six-year-old child to school, drove, did some chores, and socialized with friends in assessing the plaintiff's credibility).
"An ALJ's credibility finding is entitled to substantial deference by a reviewing court." Rivera v. Comm'r of Soc. Sec. , 368 F. Supp. 3d 626, 645 (S.D.N.Y. 2019). Here, the ALJ identified the apparent inconsistencies between Plaintiff's subjective complaints and the medical evidence in the record and her credibility assessment was proper and supported by the record. Accordingly, neither reversal nor remand is warranted.
CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 9) is granted and Plaintiff's motion for judgment on the pleadings (Dkt. 8) is denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.