ORDER

THÉRÈSE WILEY DANCKS, Magistrate Judge.

Presently before the Court in this action, in which Plaintiff seeks judicial review of an adverse administrative determination by the Commissioner, pursuant to 42 U.S.C. § 405(g), are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on September 3, 2019, during a telephone conference at which a court reporter was present. At the close of argument I issued a bench decision in which, after applying the requisite deferential review standard, I found the Commissioner's determination resulted from the application of proper legal principles and was supported by substantial evidence, and I provided further detail regarding my reasoning and addressing the specific issues raised by the Plaintiff in her appeal.

After due deliberation, and based upon the Court's oral bench decision, which has been transcribed, is attached to this Order and is incorporated in its entirety by reference herein, it is hereby,

ORDERED, as follows:

SO ORDERED.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

DECISION — September 3, 2019

James Hanley Federal Building, Syracuse, New York

HONORABLE THÉRÈSE WILEY DANCKS

United States Magistrate-Judge, Presiding

THE COURT: I have before me a request for judicial review of an adverse determination by the Commissioner under 42, U.S. Code, Section 405(g). The background is as follows.

Plaintiff was born in November of 1970 and is currently 48 years old. She was 42 years old at the onset of her alleged disability in August of 2013, which she later amended to an onset date of April 16, 2011. She is a high school graduate.

She last regularly worked in April of 2011 at a level of substantial gainful activity, although she had other work after that date which was below the level of substantial gainful activity. Her past jobs have included bookkeeper, staff accountant, and front desk clerk.

In her application for benefits she indicated she suffers from chronic migraines, chronic headaches, ocular migraines, coital cephalalgia, depression, and anxiety. At the initial hearing in 2015, she testified that her headaches are what keep her from being able to work.

She has mainly treated with Dr. Joseph at Upstate Neurology and various providers at Family Medicine Associates, with the more recent treatment being from Dr. Commisso there. Other records in the Administrative Transcript include notes of office visits with Family Nurse Practitioner Vitkus of Family Care Medical Group, two visits encounter in 2010 before the date of disability with Dr. Shukri of CNY Neurological Consulting.

There is also a note for treatment of a rash on August 4, 2014 by Physician Assistant Kinsley, which is listed in the transcript index as Exhibit 8F from St. Joseph's Hospital, but the note appears to identify the medical organization as SJP Urgent Care. There are source statements in the record from treating physicians Dr. Joseph and Dr. Commisso, and examining consultants Dr. Lorensen and Dr. Noia, and non-examining consultant Dr. Willer, who also testified at the second hearing in March of 2018.

The plaintiff reports that she's able to do self care and grooming, including showering and dressing herself, although sometimes it takes her longer depending on her pain level. She can also do some housework, including cleaning and laundry. She can prepare simple meals daily if her family does not cook for her. She has a driver's license and can drive a car and go out alone for short distances. She shops for groceries and clothing with family sometimes helping. She spends her time reading and baking once a week and watching movies. She socializes with friends and helps her daughter's Girl Scout troop twice a month. She has no trouble lifting and can stand and walk, although sometimes she feels unbalanced and dizzy. She can sit but she has

This case has a long procedural history. Plaintiff filed for Title II benefits on September 3, 2013, originally alleging an onset date of disability beginning August 3, 2013, which, as noted, was amended to April 16, 2011. A hearing was conducted by Administrative Law Judge Jennifer Gale Smith on January 15, 2015, who issued an unfavorable decision shortly thereafter. Review was denied by the Appeals Council and a District Court action was then commenced. Thereafter, a consent order reversed the final decision of the Commissioner and the Appeals Council vacated ALJ Smith's decision and remanded the case for further proceedings.

A second hearing was held on March 20, 2018 before ALJ Smith, who then issued an unfavorable decision on April 24, 2018, which ultimately became the final decision of the Commissioner and this pending action was then commenced in a timely fashion.

In her April 24, 2018 decision, ALJ Smith applied the required five-step sequential test for determining disability.

At step one she found plaintiff had not engaged in substantial gainful activity since April 16, 2011 through her last date insured of March 31, 2018, although noting there was some work during the relevant time period which did not

At step two she concluded plaintiff suffers from severe conditions of headaches by history, back pain by history, asthma and obesity, rejecting other conditions as not sufficiently limiting to qualify under step two.

At step three the ALJ concluded that plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions. Then after a review of the record evidence, the ALJ determined plaintiff is capable of performing light work with some restrictions, including various postural and environmental limitations.

At step four the ALJ concluded with the help of a vocational expert's testimony that plaintiff is capable of performing her past relevant work as a bookkeeper. Alternatively, in considering plaintiff's age, education, work experience, and residual functional capacity, or RFC, the ALJ relied on the testimony of the vocational expert to conclude there were also other jobs in significant numbers in the national economy plaintiff could perform. Therefore, the ALJ found plaintiff was not disabled at the relevant times.

I've reviewed the record carefully, and in light of the arguments of counsel and what counsel had presented in their briefs, I've applied the requisite deferential standard which requires me to determine whether proper legal principles were applied and whether the result is supported

Regarding the ALJ's determination of the plaintiff's RFC, the plaintiff argues that the ALJ erred in formulating the RFC because she failed to follow the Treating Physician Rule and accorded substantial weight to the opinion of non-examining and testifying medical expert Dr. Willer. The ALJ also accorded examining consultant Dr. Lorensen's opinion significant weight, while giving little weight to treating physician Dr. Joseph, and minimal weight to treating physician Dr. Commisso, all of which the plaintiff argues was in error.

As we all know, the determination of a claimant's disability is a legal determination reserved to the Commissioner. I've done a complete review of the record and find that the ALJ properly assessed all of the opinion evidence and gave good reasons for giving reduced weight to the opinions of Dr. Joseph and Dr. Commisso and more weight to the opinions of Dr. Willer and Dr. Lorensen.

I will start with Dr. Joseph's source statement dated December 14, 2014 and as reconfirmed and updated on August 24, 2017. To be sure, a treating source's opinion is entitled to controlling weight if the opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence. When a treating source's opinion is such as the length and nature of the treatment relationship, the medical evidence in support of the opinion, the consistency of the opinion with the record as a whole, whether the opinion is from a specialist, and any other factors that tend to support or contradict the opinion.

Each and every factor, however, need not be recited. The treating physician's opinion need not be afforded controlling weight when the opinion is not consistent with the opinions of other medical experts and is contradicted by other substantial evidence in the record.

Initially, I note that it's clear from the ALJ's decision that she thoroughly reviewed and correctly summarized all of the treatment records, including Dr. Joseph's care. As I've noted, the ALJ gave Dr. Joseph's opinion little weight. The opinion included that plaintiff would need five to six unscheduled breaks a month lasting five to six hours to lie down or sit quietly and that she would miss more than four days of work per month.

In her reasons for giving little weight to Dr. Joseph's opinion, the ALJ noted that the opinion was based upon plaintiff's subjective reports rather than any objective findings by Dr. Joseph. The ALJ also noted that Dr. Joseph's treatment notes were not consistent with her opinion, as well as with plaintiff's own reports of

For example, Dr. Joseph's treatment notes show plaintiff was not compliant with the medication regime prescribed. Failure to follow recommended treatment is a valid factor in evaluating plaintiff's symptoms and disability. Additionally, physical exams by Dr. Joseph showed plaintiff to be alert and attentive, her memory was intact, and she had normal attention span and concentration; her cognitive functions were normal; cerebellar motor and sensory exams were normal; her gait, coordination and reflexes were normal; MRIs of her brain were normal.

The ALJ also noted plaintiff's reported activities did not support the opinion of Dr. Joseph but do support the RFC. In this regard the record shows the plaintiff could do self care, and she did light cleaning, prepared simple meals, baked, and did laundry, and child care, including helping with her daughter's Girl Scout troop twice a month. She read, watched TV and visited friends, including traveling to Florida for two weeks to help a sick friend. She could do some shopping, drive, and go out alone. She had no trouble lifting and could stand and walk, although she reported she sometimes felt unbalanced and dizzy.

The ALJ noted other medical evidence of record also did not support Dr. Joseph's limitations. For example, Dr. Willer, a neurologist, opined plaintiff's symptoms did headaches as reported by plaintiff to her providers. Additionally, the record shows that while plaintiff complained of frequent headaches to Dr. Buniak in June of 2014, he denied dizziness, weakness, anxiety, depression and difficulty sleeping on that date. However, in September of 2014 when plaintiff again denied dizziness, she also denied frequent headaches, migraines or weakness.

Nurse Practitioner Vitkus noticed plaintiff's complaints of migraines throughout the primary care office visits between September of 2015 and August of 2017, and noted that plaintiff was getting treatment with Dr. Joseph for them. Notably, with Nurse Practitioner Vitkus plaintiff denied visual disturbances, memory lapses, dizziness and weakness, and her physical exams were entirely within normal limits, including findings of no visual disturbances, memory lapses, or any musculoskeletal symptoms.

In August of 2014 plaintiff treated with PA Kinsley at Urgent Care. He noted she was negative for dizziness, numbness and headaches, and the exam was otherwise completely normal except for a skin rash on her hands.

In discounting the opinion of Dr. Joseph, the ALJ also noted plaintiff's treatment was infrequent with Dr. Joseph since the record shows plaintiff saw Dr. Joseph for a total of eight encounters in four years, and there was treatment with Dr. Joseph. The frequency of treatment is certainly one factor in evaluating a treating source's opinion, including opinions of a plaintiff's likely work absences.

The ALJ's RFC determined that plaintiff could do light work with environmental and manipulative restrictions. I find that she properly gave good reasons for giving little weight to the more restrictive limitations listed in Dr. Joseph's opinion, and the ALJ's determination in this regard is supported by substantial evidence and remand is not required on this ground.

The plaintiff also argues that the ALJ erred in considering Dr. Commisso's opinion related to the need for an unknown number of unscheduled breaks, being off task, and the number of absences. In giving minimal weight to Dr. Commisso's opinion, the ALJ again noted plaintiff's limited treatment history with that provider and that the restrictions were based upon plaintiff's subjective complaints.

The ALJ also found the opinion, like the opinion of Dr. Joseph, was not supported by treatment notes or other evidence of record. For example, in August of 2013 and April of 2014 plaintiff denied headaches, imbalance, or weakness, and the physical exams charted by Dr. Commisso on those dates headache, but she appeared healthy and the exam was normal. In December of 2014 Dr. Commisso noted plaintiff needed disability paperwork filled out and she was there at the office, quote, "looking to be out of work for migraines." Plaintiff complained of dizziness and light and sound sensitivity, but she appeared healthy, alert and oriented, her memory was intact and the exam was normal.

Again, I find the ALJ properly gave good reasons for giving little weight to the limitations listed in Dr. Commisso's opinion, and remand is not required on this ground.

Plaintiff also argues that the ALJ relied solely on the opinion of non-examiner Dr. Willer. However, as is clear from his decision, the ALJ gave significant weight to the opinion of Dr. Lorensen, as well as substantial weight to the opinion of Dr. Willer. Dr. Lorensen found no restrictions in plaintiff's ability to work. Dr. Lorensen's examination was entirely normal, and although it was from 2013, there is no evidence in the record that plaintiff's condition worsened between the date of Dr. Lorensen's consultation and the date of the ALJ's decision at issue.

On the contrary, the record shows plaintiff's subjective complaints of headaches improved when she took her medication as prescribed and started the Botox treatments for the opinion of Dr. Lorensen. And, therefore, I find no merit in plaintiff's argument that Dr. Lorensen's opinion does not explain the limitations adopted by the ALJ.

Plaintiff also takes issue with the ALJ's reliance on Dr. Willer's opinion because he did not examine her. However, the opinion of non-examining medical experts can constitute substantial evidence beyond that of a treating source if the non-examining expert's opinion is supported in the record. Here Dr. Willer noted and testified that the description of plaintiff's headaches as set forth in her medical records was not consistent with migraines. Dr. Willer noted plaintiff's headaches were not described consistently as throbbing, and there were inconsistencies in the nature, location and duration of the headaches as plaintiff described to her providers.

Additionally, as I've highlighted above, treatment records from her various providers show that plaintiff did not complain of headaches at all at many of her medical encounters during the relevant time period. The ALJ found Dr. Willer's detailed explanation reasonable, and where evidence is susceptible to more than one rational interpretation, the Commissioner's conclusions must be upheld.

For these reasons I find the ALJ's RFC is supported the plaintiff's own reports of activities.

In light of the foregoing and considering the entire record and the ALJ's determination, I find that the ALJ applied the appropriate standards of review in determining plaintiff's RFC. The ALJ set forth good reasons for giving reduced weight to the opinions of Drs. Joseph and Commisso, and the RFC is consistent with other opinions and medical evidence in the record. Therefore, I find the determination of plaintiff's RFC is supported by substantial evidence and the correct legal standards were applied.

Lastly, I'll address plaintiff's argument that the ALJ step four determination was flawed because the hypothetical posed to the vocational expert was not based on substantial evidence. However, the hypothetical was based upon the RFC determination for the relevant time period which, as I've indicated, I find is supported by substantial evidence. The objective medical findings support the RFC that plaintiff could perform light duty work with some environmental and manipulative restrictions. The ALJ elicited testimony from the vocational expert to determine that plaintiff could perform her past relevant work as a bookkeeper, and additionally, that she could perform other jobs existing in the national and local economy given her vocational factors and functional limitations. ALJ in the step four analysis is supported by substantial evidence and the correct legal standards were applied.

So I grant the defendant's motion for judgment on the pleadings and will enter a judgment dismissing plaintiff's complaint in this action. A copy of the transcript of my decision will be attached to the order should any appeal be taken from my determination.

CERTIFICATION

I, EILEEN MCDONOUGH, RPR, CRR, Federal Official Realtime Court Reporter, in and for the United States District Court for the Northern District of New York, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.