Opinion
1:20-CV-00546 EAW
2021-07-30
SUSAN B., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Kenneth R. Hiller, Mary Ellen Gill, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff. Joshua L. Kershner, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Kenneth R. Hiller, Mary Ellen Gill, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff.
Joshua L. Kershner, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Represented by counsel, Plaintiff Susan B. ("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). 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. 13; Dkt. 14), and Plaintiff's reply (Dkt. 16). For the reasons discussed below, the Commissioner's motion (Dkt. 14) is granted and Plaintiff's motion (Dkt. 13) is denied.
BACKGROUND
Plaintiff protectively filed her application for DIB on March 22, 2017 and, thereafter, she filed a claim for SSI on March 27, 2017. (Dkt. 10 at 15, 68-69). In her applications, Plaintiff alleged disability beginning November 1, 2016, due to bipolar disorder, post-traumatic stress disorder, depression, anxiety, knee issues (including her left knee, which needed replacement), and difficulty sleeping. (Id. at 15, 71, 83). Plaintiff's applications were initially denied on July 11, 2017. (Id. at 15, 96-110). A video hearing was held before administrative law judge ("ALJ") David J. Begley on December 12, 2018. (Id. at 15, 32-67). Plaintiff appeared in Buffalo, New York and the ALJ presided over the hearing from Alexandria, Virginia. (Id. ). On March 12, 2019, the ALJ issued an unfavorable decision. (Id. at 12-27). Plaintiff requested Appeals Council review; her request was denied on March 19, 2020, making the ALJ's determination the Commissioner's final decision. (Id. at 4-6). 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 Bowen 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 meets the insured status requirements of the Act through December 31, 2021. (Dkt. 10 at 17). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since November 1, 2016, the alleged onset date. (Id. at 18).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "osteoarthritis-knees ; obesity ; and psychiatric impairments alternatively diagnosed as bipolar disorder, depression, anxiety, and posttraumatic stress disorder (PTSD)." (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of obstructive sleep apnea and right hand and lower back pain were non-severe. (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 criteria of Listings 1.00, 12.04, 12.06, and 12.15, as well as considering the effect of Plaintiff's obesity as required by Social Security Ruling ("SSR") 02-1p. (Id. at 18-20).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the additional limitations that Plaintiff:
is prohibited from climbing ladders, ropes, and scaffolds. She is further limited to occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and crawling. She would need to avoid concentrated exposure to extreme cold. She also would need to avoid concentrated slippery and uneven surfaces as well as hazardous machinery, unprotected heights, and open flames.
Additionally, she is limited to doing simple routine, repetitive tasks. She is further limited to work in a low stress job defined as being free of fast-paced production requirements, no hazardous conditions, occasional decision-making required, and occasional changes in the work setting. Finally, she is limited to occasional interaction with coworkers and supervisors and no direct interaction with the general public.
(Id. at 20). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 25).
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 exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of small parts assembler, laundry folder, and warehouse checker. (Id. at 26). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 26-27).
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, remand this matter to the Commissioner, arguing that (1) the ALJ did not properly weigh the opinion offered by Licensed Master Social Worker (LMSW) Amber Halverson, because he downplayed her treatment relationship with Plaintiff, failed to obtain her complete treatment notes, and did not properly consider the regulatory factors, and (2) the physical RFC was not supported by substantial evidence, because the opinion offered by Hongbiao Liu, M.D. was vague, and the ALJ otherwise failed to explain how he arrived at the specific limitations in the RFC. (Dkt. 13-1 at 1, 13-18). The Court has considered each of these arguments and, for the reasons discussed below, finds them without merit.
A. Weighing of Ms. Halverson's Opinion
Plaintiff's first argument is that the ALJ erred in evaluating the opinion offered by Ms. Halverson. (Dkt. 13-1 at 13). In assessing a disability claim, an ALJ must consider and weigh the various medical opinions of record. Pursuant to the Commissioner's regulations:
the ALJ must consider various factors in deciding how much weight to give to any medical opinion in the record, regardless of its source, including: (i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the ... physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion.
Pike v. Colvin , No. 14-CV-159-JTC, 2015 WL 1280484, at *5 (W.D.N.Y. Mar. 20, 2015) (quotation and alterations omitted).
Before addressing the ALJ's weighing of Ms. Halverson's opinion, the Court notes that, while Plaintiff filed her claim for DIB on March 22, 2017, she filed her claim for SSI on March 27, 2017. These dates are significant because the regulations relating to the evaluation of medical evidence for disability claims were previously amended and those amendments apply to claims filed on or before March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence , 2017 WL 168819, 82 Fed. Reg. 5844-01, at *5844 (Jan. 18, 2017) ; see also 20 C.F.R. §§ 404.1520c and 416.920c (addressing "[h]ow we consider and articulate medical opinions and prior administrative medical findings for claims filed on or after March 27, 2017"). Among other things, the new regulations "eliminate the perceived hierarchy of medical sources," such that "ALJs are no longer directed to afford controlling weight to treating source opinions[.]" See Jacqueline L. v. Comm'r of Soc. Sec. , No. 6:19-CV-06786 EAW, 515 F.Supp.3d 2, 7 (W.D.N.Y. Jan. 26, 2021) (quotations and citations omitted). Neither Plaintiff nor the Commissioner has addressed whether the regulations in effect before March 27, 2017, or the regulations applicable on or after March 27, 2017 apply in Plaintiff's case. The ALJ applied the regulations in effect before March 27, 2017 to both Plaintiff's DIB claim (filed on March 22, 2017) and SSI claim (filed on March 27, 2017). (See Dkt. 10 at 21 ("I have also considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927.")). The Social Security Administration's Program Operations Manual System (POMS), "which is a primary source of information used by agency employees to process claims for Social Security benefits ... provides that in a situation where one claim is open when another claim is filed, the rules applicable to the earliest filing date are used." Witt v. Saul , No. 1:19-cv-651, 2020 WL 7047734, at *1 (S.D. Ohio Dec. 1, 2020) (citing POMS DI 24503.050 (D)(2)(a), and finding that magistrate judge erred by applying amended regulations to plaintiff's SSI claim, where SSI claim was filed after March 27, 2017, but DIB claim was filed before March 27, 2017). Plaintiff's earlier-filed DIB claim, which was filed on March 22, 2017, pre-dates the amended regulations. Accordingly, the pre-March 27, 2017 regulations apply to the ALJ's assessment of Plaintiff's DIB and SSI claim.
Under the Commissioner's regulations applicable to Plaintiff's claim, social workers, such as Ms. Halverson, are not acceptable medical sources. See Lisa A. B. v. Comm'r of Soc. Sec. , No. 5:20-CV-0423 (ML), 2021 WL 2555396, at *6-7 (N.D.N.Y. June 21, 2021). Nevertheless, an ALJ should consider evidence from "other sources," such as social workers, on important issues like the severity of an impairment and any related functional effects. See SSR 06-3p, 2006 WL 2329939 (S.S.A. Aug. 9, 2006). An ALJ may not disregard opinion evidence from a nurse practitioner or "other source" solely because it was not authored by an acceptable medical source. See Canales v. Comm'r of Soc. Sec. , 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010) (holding that ALJ erred in disregarding opinion of social worker simply because it was the opinion of an "other source," and "not on account of its content or whether it conformed with the other evidence in the record"). However, the ALJ "has the discretion to determine the appropriate weight to accord the [other source]’s opinion based on all the evidence before him[.]" Diaz v. Shalala, 59 F.3d 307, 314 (2d Cir. 1995).
Ms. Halverson completed a mental RFC questionnaire on November 1, 2018. (Dkt. 10 at 713-17). Ms. Halverson noted that she treated Plaintiff once per month for 45 minutes, and indicated that Plaintiff "engages in mental health treatment and has done well in treatment." (Id. at 713). Ms. Halverson noted that Plaintiff presented with a long history of depression symptoms and required ongoing treatment and medications. (Id. ). Plaintiff's symptoms included: thoughts of suicide; feelings of guilt or worthlessness; generalized persistent anxiety; mood disturbance ; difficulty thinking or concentrating; emotional withdrawal or isolation; bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes ; emotional lability; and memory impairment. (Id. at 714). For unskilled work, Plaintiff had a "limited but satisfactory" ability to perform the following activities: maintain regular attendance and be punctual within customary, usually strict tolerances; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being unduly distracted; make simple work-related decisions; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; respond appropriately to changes in a routine work setting; and be aware of normal hazards and take appropriate precautions. (Id. at 715). Plaintiff was "seriously limited," meaning that her ability to function would frequently be less than satisfactory in any work setting, in the following categories: remember work-like procedures; understand and remember very short and simple instructions; carry out very short and simple instructions; maintain attention for a two-hour segment; complete a normal workday and workweek without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes; and deal with normal work stress. (Id. ). Ms. Halverson explained that Plaintiff "presents with difficulty with memory at times and is required to write things down to remember. When depression symptoms are high she struggles with fatigue which impacts pace. This also leads to minimal tolerance with distress." (Id. ). Ms. Halverson also noted that Plaintiff has a history of conflict with another co-worker and "per her report exhibited some behavior extremes." (Id. ). With regard to Plaintiff's ability to perform semiskilled or skilled work, Plaintiff had a "limited but satisfactory" ability to carry out detailed instructions and set realistic goals or make plans independently of others, but was "seriously limited" in her ability to understand and remember detailed instructions and deal with the stress of semiskilled and skilled work. (Id. at 716). Ms. Halverson explained that Plaintiff struggled with her memory at times, which could impact her ability to complete tasks. (Id. ). For Plaintiff's abilities to perform particular types of jobs, she had a "limited but satisfactory" ability to interact appropriately with the general public, maintain socially appropriate behavior, adhere to basic standards and neatness and cleanliness, travel in an unfamiliar place, and use public transportation. (Id. ). Plaintiff did not have a low IQ or reduced intellectual functioning, and her mental condition did not exacerbate her experience of pain or any other physical symptom. (Id. ). According to Ms. Halverson, on average Plaintiff would be absent from work about three days per month, and she would not be able to engage in fulltime competitive employment on a sustained basis. (Id. at 717).
Also submitted with Ms. Halverson's assessment is a mental status exam dated July 23, 2018, which noted that Plaintiff was cooperative with euthymic mood, had normal speech, was oriented to person, place and time, with appropriate and organized thought content, goal-directed thought processes, normal cognitive status, and fair insight and judgment. (Dkt. 10 at 719-20). The assessment also noted that Plaintiff was "doing much better!" (Id. at 720).
The ALJ gave Ms. Halverson's opinion "very little weight." Specifically, after discussing Ms. Halverson's opinion as to Plaintiff's limitations, the ALJ explained:
Although Ms. Halverson reported that there was a monthly treatment relationship with the claimant, she does not specify when it began. Furthermore, these limitations are inconsistent with the objective findings, including the evidence of effective treatment. Thus, the limitations are unsupported. Also, Ms. Halverson is not an "acceptable medical source" under the Regulations. Only "acceptable medical sources" can give medical opinions. Therefore, I assign very little weight to Ms. Halverson's statements about the claimant's mental functioning.
(Dkt. 10 at 25 (internal citations omitted)).
Plaintiff raises three issues with regard to the ALJ's assessment of Ms. Halverson's opinion. First, Plaintiff argues that the ALJ downplayed Ms. Halverson's treating relationship with Plaintiff because "[a]lthough the ALJ offered a summary of the medical evidence, he did not acknowledge anywhere in the decision that LMSW Halverson actually treated Plaintiff." (Dkt. 13-1 at 13). Plaintiff points to the ALJ's statement in the written determination that "[a]lthough Ms. Halverson reported that there was a monthly treatment relationship with the claimant, she does not specify when it began," which Plaintiff contends "appears skeptical both of the fact that LMSW Halverson and Plaintiff had a treatment relationship in the first place, and secondly that it was a monthly relationship." (Id. at 14). Plaintiff adds that the record establishes that Ms. Halverson treated Plaintiff on four occasions between August and December 2018, as well as on several other occasions. (Id. at 13-14). The Court disagrees with Plaintiff's interpretation of the ALJ's statement relating to Ms. Halverson's treatment relationship with Plaintiff. The above-mentioned mental RFC assessment completed by Ms. Halverson included a space for Ms. Halverson to provide her "frequency and length of contact" with Plaintiff, which Ms. Halverson answered as "1:1 once a month for 45 minutes," responding to the "frequency" piece of the question, but Ms. Halverson did not specify the date on which she first treated Plaintiff. (See Dkt. 10 at 713). Accordingly, the ALJ accurately described Ms. Halverson's response to that question on the mental RFC questionnaire and, contrary to Plaintiff's implication, there is nothing in the written determination indicating that the ALJ was "skeptical" that Plaintiff treated with Ms. Halverson. In fact, the ALJ specifically cited in the written determination to Exhibit 16F, which includes treatment notes from Ms. Halverson. (See id. 24; see also id. at 781, 784). Accordingly, Plaintiff's contention that the ALJ did not consider that Ms. Halverson treated Plaintiff is not supported by the record, and remand is not required on this basis.
Second, Plaintiff contends that the ALJ erred by not obtaining her complete treatment notes from Ms. Halverson, because the record indicates that Ms. Halverson treated Plaintiff on at least seven additional occasions between March and December 2017 and in March and June 2018, and those notes are not in the record. (Dkt. 13-1 at 14). Specifically, Plaintiff points to an August 2, 2018 "Individual Progress Note" authored by Ms. Halverson which, under a heading entitled "Linked Objectives" and "Assess Progress," lists appointments dated March 10, 2017, May 1, 2017, July 21, 2017, October 11, 2017, December 26, 2017, March 22, 2018, and June 5, 2018, with a short explanation for each appointment. (See id. ; see also Dkt. 10 at 780). Plaintiff contends that the missing treatment notes are "especially important" because the ALJ found that Ms. Halverson's opinion was not consistent with the medical record, and "the ALJ could not have determined whether it was inconsistent with those missing treatment notes." (Dkt. 13-1 at 14). The Court disagrees.
As an initial matter, the Court has reviewed the record cited by Plaintiff which she argues demonstrates that she received further treatment from Ms. Halverson and that those records are missing, and it is not entirely clear that those appointments were with Ms. Halverson specifically or some other provider at Horizon Health, or whether there are outstanding notes from those appointments. However, even if there were additional notes from appointments with Ms. Halverson, Plaintiff does not explain how those records were especially relevant to the ALJ's evaluation of Ms. Halverson's November 2018 opinion, particularly when the record contains more contemporaneous treatment records from appointments between August and December 2018. (See id. at 13-14; see also Dkt. 10 at 772-808).
Further, the fact that the ALJ was not in possession of all treatment notes from Ms. Halverson does not change that her November 1, 2018 opinion is not consistent with other evidence in the record, including evidence offered by other medical sources. To that end, the ALJ found that Ms. Halverson's opinion was entitled to "very little weight" in part because it was "inconsistent with the objective findings, including the evidence of effective treatment." (Dkt. 10 at 25). In the written determination, the ALJ discussed specific treatment records contradicting Ms. Halverson's opinion. For example, Ashley Dolan, Psy.D., the consultative examiner, found that Plaintiff had only mild-to-moderate limitations, which is consistent with the RFC requiring that Plaintiff perform unskilled work with limited interaction with others. (Id. at 24; see also id. at 393); Shawn V. v. Comm'r of Soc. Sec. , No. 1:20-CV-0997 (WBC), 2021 WL 3022295, at *4 (W.D.N.Y. July 16, 2021) ("The Second Circuit has held that moderate limitations in work related functioning does not significantly limit, and thus prevent, a plaintiff from performing unskilled work."); Martinez v. Comm'r of Soc. Sec. , No. 3:16-CV-0908 (WBC), 2017 WL 2633532, at *5-7 (N.D.N.Y. June 15, 2017) (finding RFC for unskilled work, which required plaintiff to "engage in simple, routine, and repetitive tasks in a low-stress job, defined as a job that had occasional changes in the work setting that required occasional decision making and occasional judgment" was not inconsistent with moderate limitations in mental functioning). The ALJ also cited to treatment records documenting that Plaintiff had mostly normal mental status examinations. (See, e.g., Dkt. 10 at 23 (discussing January and February 2017 mental status examination, which showed that claimant maintained fair insight and judgment, appropriate thought content, and logical thought processes, despite depressed and anxious mood ); id. (discussing September 2017 mental status examination, which showed that Plaintiff maintained euthymic mood in addition to normal mental functioning); id. (discussing normal mental functioning between February and July 2018, and in November 2018)); see also id. at 392 (Dr. Dolan explaining that Plaintiff "was cooperative and interacted adequately during the exam, though she appeared depressed," that her speech was fluent and clear, she had coherent and goal-directed thought processes, normal orientation, intact attention and concentration, average intellectual functioning, "mildly impaired" recent and remote memory skills, and good insight and judgment).
Dr. Dolan found that Plaintiff was "able to understand, remember, and apply simple directions. She is able to understand, remember, and apply complex directions. She [i]s able to use reason and judgment to make work-related decisions. She has moderate limitations [to] interact adequately with supervisors, co-workers, and the public. She is able to sustain concentration and perform a task at a consistent pace. She has moderate limitations [to] sustain an ordinary routine and regular attendance at work. She has moderate limitations regulating emotions, controlling behavior, and maintaining her well-being. She has mild limitations maintain[ing] personal hygiene and appropriate attire. She is able to be aware of normal hazards and take appropriate precautions. Her [d]ifficulties are caused by psychiatric symptoms." (Dkt. 10 at 393). The ALJ gave "some weight" to Dr. Dolan's opinion. (Id. at 24).
Finally, while Plaintiff contends that the ALJ had a duty to develop the record to obtain the missing treatment notes (Dkt. 13-1 at 15), the ALJ's efforts to develop the record in this case were sufficient. "Generally, the ALJ's duty to develop the record is satisfied where, as here, the ALJ keeps the record open to receive further evidence after the administrative hearing but the plaintiff fails to provide such evidence nor requests the ALJ's assistance in obtaining the records." Elizabeth S. v. Comm'r of Soc. Sec. , No. 19-CV-06440, 2021 WL 1054371, at *5 (W.D.N.Y. Mar. 19, 2021). Here, at the administrative hearing on December 12, 2018, where Plaintiff was represented by counsel, the ALJ inquired as to whether there were any outstanding records and agreed to hold the record open for two weeks following the hearing to receive additional records from Horizon. (Dkt. 10 at 36, 66; see also id. at 15 ("Subsequent to the hearing the representative submitted records from Horizon Health, Excelsior Orthopedics and Erie County Medical Center admitted as Exs14F-16F.")). There was no discussion of records missing from earlier examinations in 2017 or early 2018; rather, Plaintiff represented that she had received the RFC assessment from Horizon, but was still waiting on "the updated records from July 24, 2018 to current." (Id. at 36). Plaintiff has pointed to no facts that would make the general rule regarding the ALJ's holding the record open inapplicable here, and Plaintiff may not simultaneously "rest on the record," and then later reverse positions when she believes it will be to her benefit on appeal. See Gonzalez v. Colvin , 1:15-cv-00767-MAT, 2018 WL 1040250, at *3 (W.D.N.Y. Feb. 24, 2018) ("[a]lthough an ALJ has the duty to develop the record, such a duty does not permit a claimant, through counsel, to rest on the record—indeed, to exhort the ALJ that the case is ready for decision—and later fault the ALJ for not performing a more exhaustive investigation." (citation omitted)). Under these circumstances, the Court finds that the ALJ did not err in failing to obtain these additional records from Ms. Halverson.
Third, Plaintiff contends that the ALJ did not properly consider the regulatory factors when assessing Ms. Halverson's opinion and the ALJ held it against her that she improved with treatment. (Dkt. 13-1 at 15). Plaintiff's statement that the ALJ did not consider the regulatory factors is belied by the record. As discussed above, the written determination makes plain that the ALJ considered that Ms. Halverson was a social worker, that she had a monthly treatment relationship with Plaintiff, and the consistency of her opinion with the record, as directed by the regulations. The fact that the ALJ did not specifically discuss the date on which Plaintiff began treating with Ms. Halverson does not require remand. See Frederick C. v. Comm'r of Soc. Sec. , No. 1:19-CV-1078 (CFH), 2021 WL 466813, at *14 (N.D.N.Y. Feb. 9, 2021) ("the ALJ is not required to mention or discuss every single piece of evidence in the record"); Feliciano o/b/o D.F. v. Comm'r of Soc. Sec. , No. 1:18-CV-00502 EAW, 2020 WL 1815754, at *5 (W.D.N.Y. Apr. 10, 2020) ("The ALJ is not required to reconcile explicitly every conflicting shred of medical testimony. Nor is the ALJ required to mention or discuss every single piece of evidence in the record." (internal quotations and citation omitted)).
In sum, the ALJ properly assessed Ms. Halverson's opinion, which is not entitled to controlling weight. The ALJ discussed her opinion in the written determination and explained the weight accorded to it, and it is apparent to the Court why the ALJ gave the opinion only "very little weight." That is all that is required under the circumstances, and remand is not required on this basis.
B. The Physical RFC and Dr. Liu's Opinion
Plaintiff states that the physical RFC was not supported by substantial evidence because "Dr. Toor's opinion" was too vague (see Dkt. 13-1 at 16); however, Dr. Toor did not offer a medical opinion in connection with Plaintiff's case, and therefore this appears to be a typographical error.
Plaintiff's second and final argument is that the RFC is not supported by substantial evidence because Dr. Liu's opinion was too vague to rely on, and the ALJ otherwise failed to explain how he arrived at the specific limitations. (Dkt. 13-1 at 16). For the reasons set forth below, the Court finds no error in the assessment of the physical RFC. 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). In other words:
An ALJ is prohibited from ‘playing doctor’ in the sense that ‘an ALJ may not substitute his own judgment for competent medical opinion.... This rule is most often employed in the context of the RFC determination when the claimant argues either that the RFC is not supported by substantial evidence or that the ALJ has erred by failing to develop the record with a medical opinion on the RFC.
Quinto v. Berryhill , No. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (citations 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 and citation omitted).
In support of her argument that Dr. Liu's opinion cannot support the physical RFC, Plaintiff points specifically to Dr. Liu's statement that Plaintiff had "mild to moderate limitations for prolonged walking, bending, and kneeling," which she contends is "overly vague." (Dkt. 13-1 at 16). However, a consultative examiner's use of the terms "mild" or "moderate" is not impermissibly vague when the opinion is supported by a physical examination and an assessment which is consistent with the record as a whole. Taylor v. Comm'r of Soc. Sec. , No. 17-CV-1011-MJR, 2019 WL 457718, at *4 (W.D.N.Y. Feb. 6, 2019) ("The Court agrees with [plaintiff]’s argument in that [the consultative examiner]’s use of the term ‘moderate’ could constitute vagueness. However, [the consultative examiner]’s opinion of ‘moderate’ limitations does not stand alone. It is based on the objective MRI results and the in-person physical examination of the Plaintiff."); see also Haggins v. Comm'r of Soc. Sec. , No. 1:19-CV-00639 EAW, 2020 WL 4390698, at *5 (W.D.N.Y. July 31, 2020) ("courts have routinely held that Curry does not stand for the broad proposition that a medical source opinion which uses terms like ‘mild’ or ‘moderate’ is always too vague to constitute substantial evidence—where the examiner conducts a thorough examination and explains the basis for the opinion" (quoting Filer v. Comm'r of Soc. Sec. , 435 F. Supp. 3d 517, 524 (W.D.N.Y. 2020) ); Richardson v. Comm'r of Soc. Sec. , No. 1:16-CV-00658-MAT, 2018 WL 3633199, at *3 (W.D.N.Y. July 30, 2018) (although the doctor's source statement was "relatively brief," her opinion was "not impermissibly vague" where "she performed a thorough and complete examination of Plaintiff"). "[T]he determinative question is whether the conclusions were supported by examination results and the record as a whole." Richardson , 2018 WL 3633199, at *3.
Here, Dr. Liu examined Plaintiff on June 7, 2017. (Dkt. 10 at 396). In addition to reviewing Plaintiff's complaints and assessing her medical history (id. at 396-97), Dr. Liu performed a physical examination of Plaintiff (id. at 397-99). Dr. Liu opined that Plaintiff had "mild to moderate limitations for prolonged walking, bending, and kneeling" (id. at 399), which is consistent with his physical examination findings that Plaintiff had a steady gait without a cane and had a normal stance, but moderate difficulty walking on heels and toes and limited squat due to low back and knee pain (id. at 397-98). In assessing the physical RFC, the ALJ also relied on opinion evidence offered by G. Feldman, M.D., the state-examining physician, who found that Plaintiff could occasionally lift 20 pounds, frequently perform postural activities, and occasionally kneel, crouch, and crawl. (Id. at 24; see also id. at 77-79).
Both the opinions offered by Dr. Liu and Dr. Feldman, which the ALJ assigned "some weight" (id. at 24), are consistent with the RFC for light work with additional limitations for climbing, balancing, stooping, kneeling, crouching, and crawling. See, e.g., Monserrate B. v. Comm'r of Soc. Sec. , No. 1:20-CV-700-DB, 2021 WL 2587249, at *5 (W.D.N.Y. June 24, 2021) ("an opinion of mild-to-moderate limitations in physical functioning is consistent with the demands of light work"); Gerry v. Berryhill , No. 17-CV-7371 (JS), 2019 WL 955157, at *2-3 (E.D.N.Y. Feb. 26, 2019) (doctor's opinion that plaintiff had "mild to moderate limitation for prolonged standing, walking, climbing, bending, lifting, carrying, and kneeling" supported RFC for light work with additional limitations). Dr. Liu's use of the terms "mild" or "moderate" is not impermissibly vague given their context, and his opinion provides substantial evidence for the ALJ's conclusions. See Bona v. Comm'r of Soc. Sec. , No. 1:15-CV-00658 EAW, 2016 WL 4017336, at *11 (W.D.N.Y. July 22, 2016) ("It is well settled that an ALJ is entitled to rely upon the opinions of consultative examiners, and such written reports can constitute substantial evidence." (quotation omitted)). It is clear to the Court how the ALJ arrived at the assessed physical limitations, and therefore remand is not required on this basis.
CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 14) is granted, and Plaintiff's motion for judgment on the pleadings (Dkt. 13) is denied.
SO ORDERED.