Diaz v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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WILBERTO DIAZ,

Plaintiff,

MEMORANDUM AND ORDER

-against-

21-CV-1609(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Wilberto Diaz appeals the final decision of

the Commissioner of the Social Security Administration (the

“Commissioner”), which found Plaintiff is not disabled within the

meaning of the Social Security Act (the “Act”) and thus not

entitled to disability insurance benefits (“benefits”) under Title

II of the Act. Plaintiff and the Commissioner have cross moved

for judgement on the pleadings. For the reasons herein,

Plaintiff’s motion is GRANTED, the Commissioner’s cross-motion is

DENIED, and the case is REMANDED for further proceedings consistent

with this Memorandum and Order.

Background

The parties have filed a joint stipulation of relevant

facts, which the Court has reviewed and incorporates herein by

reference. (See generally ECF No. 22, Joint Stipulation of Facts

(“Joint Stip.”).) Plaintiff was born in 1965 and worked as a

warehouse worker and stockroom clerk until 2016. (Joint Stip. at

2.) Plaintiff filed an application for disability insurance

benefits on October 20, 2016, alleging disability beginning April

1, 2016. (ECF No. 23, Administrative Transcript, (“Tr.”), at 128,

276-77.) Plaintiff claimed he was disabled due to depression and

anxiety. (Id. at 122-23.) Plaintiff’s claim was denied on

November 29, 2016. (Id. at 150.) On December 9, 2016, Plaintiff

requested a hearing before an administrative law judge (the “ALJ”).

(Id. at 165.) ALJ Sommattie Ramrup held a hearing on August 14,

2018. (Id. at 61.) Plaintiff was represented by his attorney

Michael G. Wagner, Esq. (Id.) Victor G. Alberigi, a vocational

expert, was also present and testified at the hearing. (Id.) On

December 6, 2018, the ALJ found Plaintiff not disabled as defined

under the Act. (Id. at 129.)

On December 11, 2018, Plaintiff sought review of the

ALJ’s decision with the Appeals Council. (Id. at 200.) The

Appeals Council remanded the claim on July 29, 2019, for the ALJ

to offer a new hearing, take any further action needed to complete

the administrative record, and issue a new decision. (Id. at 147-

48.) ALJ Ramrup held the second hearing on February 10, 2020.

(Id. at 86.) Plaintiff was represented by his attorney Percel

Williams, Esq. (Id.) Andrew Vaughn, a vocational expert, was

also present and testified. (Id.) On March 3, 2020, the ALJ found

Plaintiff was not disabled prior to January 25, 2020. (Id. at

38.) The ALJ, however, found Plaintiff was disabled beginning

January 25, 2020, the day he became a person of “advanced age”,

that is, greater than 55 years old, pursuant to 20 CFR §

404.1563(e), and continues to be disabled. (Id.) Plaintiff again

sought review with the Appeals Council of the denial of disability

prior to January 25, 2020 (ECF No. 22, Joint Stip. at 1), which

was denied on December 17, 2020, thereby making the ALJ’s decision

the final decision of the Commissioner. (ECF No. 23, Tr. at 11.)

On March 26, 2021, Plaintiff filed the instant action in

federal court appealing the Commissioner’s final decision. (See

ECF No. 1, Complaint.) On February 23, 2022, the completed set of

both parties’ motion papers was filed. (See ECF Nos. 17-18,

Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion for

Judgment on the Pleadings (“Pl. Mem.”); 19-20, Defendant’s

Memorandum of Law in Support of Defendant’s Cross-Motion for

Judgment on the Pleadings and in Opposition to Plaintiff’s Motion

(“Def. Mem.”); 21, Plaintiff’s Reply Memorandum of Law in Support

of Plaintiff’s Motion for Judgment on the Pleadings (“Pl. Reply

Mem.”).)1

Legal Standard

1 Defendant did not file a reply brief.

Unsuccessful claimants for disability benefits may bring

an action in federal court seeking judicial review of the

Commissioner’s denial of their application for benefits. 42 U.S.C.

§§ 405(g), 1383(c)(3). The reviewing court does not have the

authority to conduct a de novo review and may not substitute its

own judgment for that of the ALJ, even when it might have

justifiably reached a different result. Cage v. Comm’r of Soc.

Sec., 692 F.3d 118, 122 (2d Cir. 2012). Rather, “[a] district

court may set aside the Commissioner’s determination that a

claimant is not disabled only if the factual findings are not

supported by substantial evidence or if the decision is based on

legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)

(internal quotation marks omitted) (quoting Shaw v. Chater, 221

F.3d 126, 131 (2d Cir. 2000)). “Substantial evidence is more than

a mere scintilla,” and must be relevant evidence that a “reasonable

mind might accept as adequate to support a conclusion.” Halloran

v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson v.

Perales, 420 U.S. 389, 401 (1971)) (internal quotation marks

omitted).

“The substantial evidence standard means once an ALJ

finds facts, [the court] can reject those facts ‘only if a

reasonable factfinder would have to conclude otherwise.’” Brault

v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012)

(citations omitted). If there is substantial evidence in the

record to support the Commissioner’s factual findings, those

findings must be upheld. 42 U.S.C. § 405(g). Inquiry into legal

error requires the court to ask whether “the claimant has had a

full hearing under the [Commissioner’s] regulations and in

accordance with the beneficent purposes of the [Social Security]

Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (second

alteration in original) (internal quotation marks omitted)

(quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).

To receive disability insurance benefits, a claimant

must be “disabled” within the meaning of the Act. See 42 U.S.C.

§§ 423(a), (d). A claimant qualifies as disabled when he is unable

to “engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months.” Id.

§ 423(d)(1)(A); Shaw, 221 F.3d at 131–32. The impairment must be

of “such severity” that the claimant is unable to do his previous

work or engage in any other kind of substantial gainful work. 42

U.S.C. § 423(d)(2)(A).

The regulations promulgated by the Commissioner set

forth a five-step sequential evaluation process for determining

whether a claimant meets the Act’s definition of “disabled”. See

20 C.F.R. § 404.1520. The Commissioner’s process is essentially

as follows:

[I]f the Commissioner determines (1) that the

claimant is not working, (2) that he has a ‘severe

impairment,’ (3) that the impairment is not one

[listed in Appendix 1 of the regulations] that

conclusively requires a determination of

disability, and (4) that the claimant is not

capable of continuing in his prior type of work,

the Commissioner must find him disabled if (5)

there is not another type of work the claimant can

do.

Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhart, 335

F.3d 99, 106 (2d Cir. 2003)); accord 20 C.F.R. § 404.1520(a)(4).

During this five-step process, the Commissioner must consider

whether “the combined effect of all of [a claimant’s] impairments,”

including those that are not severe, would be of sufficient

severity to establish eligibility for Social Security benefits.

20 C.F.R. § 404.1523(c). Further, if the Commissioner does find

a combination of impairments, the combined impact of the

impairments, including those that are not severe (as defined by

the regulations), will be considered in the determination process.

20 C.F.R. § 416.945(a)(2).

“The claimant has the general burden of proving . . .

his or her case at steps one through four of the sequential five-

step framework established in the SSA regulations.” Burgess, 537

F.3d at 128 (internal quotation marks and citations omitted).

“However, because a hearing on disability benefits is a non-

adversarial proceeding, the ALJ generally has an affirmative

obligation to develop the administrative record.” Id. (internal

quotation marks and alteration, and citations omitted). “The

burden falls upon the Commissioner at the fifth step of the

disability evaluation process to prove that the claimant, if unable

to perform [his] past relevant work [and considering his residual

functional capacity, age, education, and work experience], is able

to engage in gainful employment within the national economy.”

Sobolewski v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).

“The Commissioner must consider the following in

determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses or

medical opinions based on such facts; (3) subjective evidence of

pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel, 174

F.3d 59, 62 (2d Cir. 1999)) (alterations in original).

Discussion

I. The ALJ’s Decision

The ALJ analyzed Plaintiff’s claim using the five-step

sequential evaluation process, as mandated by the Act’s

implementing regulations. (ECF No. 23, Tr. at 29-30.)

At step one, the ALJ found that Plaintiff had not

engaged in substantial gainful activity since the alleged onset

date, April 1, 2016. (Id. at 30.)

At step two, the ALJ determined that Plaintiff had the

following severe impairments: left ventricular systolic

dysfunction and adjustment disorder with mixed anxiety and

depression. (Id.) The ALJ concluded the Plaintiff’s prostate

hypertrophy is a non-severe impairment that does not result in

any complication or functional limitation. (Id.)

At step three, the ALJ determined that the Plaintiff’s

impairments, singly or in combination, did not meet or medically

equal the severity of the listed impairments in 20 C.F.R. Part

404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,

and 404.1526). (Id. at 31.) Specifically, the ALJ found that

Plaintiff’s impairments did not meet the criteria of Listings

4.02 and 12.04. (Id.) First, the ALJ determined that

Plaintiff’s left ventricular systolic dysfunction did not

qualify under Listing 4.02, chronic heart failure, because

Plaintiff did not have persistent symptoms of heart failure

which very seriously limit his ability to actively initiate,

sustain, or complete activities of daily living; three or more

separate episodes of acute congestive heart failure within a

consecutive 12-month period; or an inability to perform on an

exercise tolerance test at a workload equivalent to 5 METs or

less. (Id.) Second the ALJ concluded that the severity of

Plaintiff’s symptoms, singly or in combination, did not meet or

medically equal the criteria of Listing 12.04 because they did

not satisfy the “paragraph B” criteria or “paragraph C”

criteria. (Id.)

At step four, the ALJ concluded that Plaintiff had the

residual functional capacity to perform light work2, with the

following limitations: Plaintiff can perform simple routine work

at all levels of exertion; can frequently interact with

supervisors and occasionally with coworkers and members of the

public; and cannot perform a job with a strictly enforced

production quota. (Id. at 32.) The ALJ determined that

Plaintiff has been unable to perform any of his past relevant

work since April 1, 2016. (Id. at 36.)

At step five, the ALJ noted that on January 25, 2020,

Plaintiff’s age category changed from approaching advanced age

to advanced age when he turned 55 years old. (Id. at 36.) The

ALJ concluded that there were jobs that existed in significant

numbers in the national economy that Plaintiff could perform

despite his restrictions and before he turned 55 years old.

(Id. at 37.) The vocational expert testified at the February

10, 2020 hearing that Plaintiff could perform the requirements

2 Light work “involves lifting no more than 20 pounds at a time with frequent

lifting or carrying of objects weighing up to 10 pounds. Even though the

weight lifted may be very little, a job is in this category when it requires

a good deal of walking or standing, or when it involves sitting most of the

time with some pushing and pulling of arm or leg controls. To be considered

capable of performing a full or wide range of light work, you must have the

ability to do substantially all of these activities. If someone can do light

work, we determine that he or she can also do sedentary work, unless there

are additional limiting factors such as loss of fine dexterity or inability

to sit for long periods of time.” 20 C.F.R. § 404.1567(b).

of representative occupations such as housekeeper, clerical

assistant, and street cleaner. (Id.) Accordingly, the ALJ

found that Plaintiff was not disabled prior to January 25, 2020.

Beginning January 25, 2022, however, the ALJ found that

Plaintiff was disabled because there are no jobs in the national

economy that Plaintiff could perform based on his advanced age,

pursuant to 20 CFR § 404.1563(e). (Id. at 38.)

II. The ALJ’s Evaluation of the Treating Psychiatrist’s Opinion

Plaintiff challenges the ALJ’s RFC determination based

on the ALJ’s failure to afford controlling weight to the

treating psychiatrist’s opinions. (ECF No. 18, Pl. Mem. at 1.)

The ALJ gave “partial weight” to the two opinions provided by

treating psychiatrist, Dr. Delia Jano (“Dr. Jano”) and “partial

weight” to the opinion of the consultative examiner, Dr. Tiffany

Sylvestre (“Dr. Sylvestre”). (ECF No. 23, Tr. at 35-36.) The

ALJ also noted that Plaintiff underwent a comprehensive mental

assessment with Dr. Valis Whittington (“Dr. Whittington”) at

Woodhull Hospital but did not assign controlling weight to any

of Dr. Wittington’s mental status evaluations in the record.

(Id. at 34.) Plaintiff contends that the ALJ did not give

appropriate weight to treating psychiatrist Dr. Jano, and if the

ALJ had, she would have determined Plaintiff was disabled. (See

ECF No. 18, Pl. Mem. at 6.)

A. Treating Physician Rule

Under the treating physician rule, a “treating

source’s opinion on the issue of the nature and severity of a

[claimant’s] impairment(s) will be given ‘controlling weight’ if

the opinion is ‘well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent

with the other substantial evidence in the case record.’” Greek

v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess,

537 F.3d at 128); 20 C.F.R. §§ 404.1527(c)(2).3 See Molina v.

Colvin, No. 13-cv-4701, 2014 WL 3925303, at *2 (S.D.N.Y. Aug. 7,

2014) (finding the opinion of a treating physician “need not be

given controlling weight where [it is] contradicted by other

substantial evidence in the record”).

An ALJ who does not accord controlling weight to the

treating physician’s medical opinion must still consider the

various Burgess factors to determine how much weight to give to

the opinion, including: “(i) the frequency of examination and

the length, nature, and extent of the treatment relationship;

(ii) the amount of medical evidence in support of the treating

physician’s opinion; (iii) the consistency of the opinion with

the record as a whole; and (iv) whether the opinion is from a

3 In this action, because Plaintiff’s initial application for disability and

disability insurance benefits was filed before regulatory amendments on March

27, 2017, the recent changes reflected in C.F.R. § 404.1520c do not apply,

and under C.F.R. § 404.1527(a)(2)(c), the treating source’s opinion is

generally assigned added or controlling weight, absent substantial contrary

evidence.

specialist.” Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir.

2019) (quoting Burgess, 537 F.3d at 128); see 20 C.F.R. §

404.1527(c)(2); see also Adukpo v. Berryhill, 19-cv-2709 (BMC),

2020 WL 3410333, at *1 (E.D.N.Y. Jun. 22, 2020).

“The ALJ must then ‘comprehensively set forth his

reasons for the weight assigned to a treating physician’s

opinion.’” Cichocki v. Astrue, 534 F. App’x. 71, 74 (2d Cir.

2013) (quoting Burgess, 537 F.3d at 129). The regulations also

require that the ALJ set forth “good reasons for not crediting

the opinion of the treating provider.” Cervini v. Saul, 17-cv-

2128 (JMA), 2020 WL 2615929, at *5 (E.D.N.Y. May 21, 2020)

(citing Schaal, 134 F.3d at 496, 503 (2d Cir. 1998)). Good

reasons “reflect in substance the factors as set forth in

[Section] 404.1527(d)(2), even though the ALJ declines to

examine the factors with explicit reference to the regulation.”

Abate v. Comm’r, 18-cv-2040 (JS), 2020 WL 2113322, at *4

(E.D.N.Y. May 4, 2020); Atwater v. Astrue, 512 F. App’x 67, 70

(2d Cir. 2013) (“We require no such slavish recitation of each

and every factor where the ALJ’s reasoning and adherence to the

regulation are clear.”). Further, “[t]he failure to provide

‘good reasons for not crediting the opinion of a claimant’s

treating physician is a ground for remand.’” Greek, 802 F.3d at

375 (quoting Burgess, 537 F.3d at 129-30).

B. Medical Opinion of Dr. Delia Jano

In assessing the extent of Plaintiff’s limitations due

to his adjustment disorder with mixed depression and anxiety,

the ALJ assigned “partial weight” to the two opinions of Dr.

Jano, dated August 7, 2018, and September 26, 2019, which found

that Plaintiff had “marked” limitation in his ability to

maintain attention and concentration for extended periods of

time. (ECF No. 23, Tr. at 35, 571, 586.) Dr. Jano assessed

that Plaintiff’s symptoms cause a “moderate-to-marked”

interference with Plaintiff’s ability to interact with the

public, accept instructions, and respond appropriately to

criticism. (Id. at 571, 586.) The ALJ acknowledged that Dr.

Jano is Plaintiff’s treating psychiatrist, but discounted Dr.

Jano’s opinions noting that the mental status evaluations from

her showed “grossly intact” memory, attention, and

concentration. (Id. at 35.) The ALJ also reasoned that Dr.

Jano’s opinion was “inconsistent with the claimant’s reports at

the evaluation that he spent time with his sisters and wife.”

(Id. at 35.)

The Court finds that the ALJ committed legal error by

affording insufficient weight to Dr. Jano’s opinion for several

reasons, which taken together, justify a remand. First, the ALJ

incorrectly “imposed [her] own notion” and medical judgment over

that of the treating psychiatrist’s opinions, by finding that

the severity of Plaintiff’s alleged mental impairments were

contradicted by a few mental status evaluations showing “grossly

intact” memory, attention, and concentration. (Id. at 35); Shaw

v. Carter, 221 F.3d 126, 134-35 (2d Cir. 2000). “In the context

of the old treating physician rule, the Second Circuit has

signaled that it may be especially important to give weight to

treating physicians regarding mental health opinions because

records of mental health diagnoses may be less clear than actual

consultations.” Dany Z. v. Saul, 531 F. Supp. 3d 871, at *884-

85 (D. Vt. 2021) (citing Flynn v. Comm’r of SS, 729 F. App’x

119, 122 (2d Cir. 2018) (“The treatment provider’s perspective

would seem all the more important in cases involving mental

health, which are not susceptible to clear records such as x-

rays or MRIs. Rather, they depend almost exclusively on less

discretely measurable factors, like what the patient says in

consultations.”).

Furthermore, the ALJ failed to explicitly apply the

factors in Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008),

as required by the Second Circuit in Estrella. 925 F.3d at 95–

96. Specifically, with mental health treatment, the ALJ failed

to attempt to “reconcile” or “grapple with” the apparent

longitudinal inconsistencies in Plaintiff’s records regarding

mental health. Id. at 434. Dr. Whittington’s mental status

evaluations from treating Plaintiff before, during, and after

the evaluations conducted by Dr. Jano, all demonstrated that

Plaintiff had a more severe condition than consultative

examiner, Dr. Sylvestre’s, mental status evaluations show. (ECF

No. 23, Tr. at 530-37, 1040-41, 1175-76, 1240-41, 1255, 1631,

1641, 1983, 2014, 2041.) Dr. Whittingham’s evaluations are

consistent with Dr. Jano’s opinions regarding Plaintiff’s

ability to concentrate, pay attention, and remember, but the ALJ

did not provide an explanation for disregarding Dr.

Whittingham’s substantial evaluations in her report. (Id. at

34-35, 571, 586.) Here, the ALJ did not consider the entirety

of Plaintiff’s record and improperly “cherry-picked” which

mental evaluations of Dr. Jano’s to highlight to support her

decision. Jacobs v. Saul, 482 F. Supp. 3d 23, 27–28 (E.D.N.Y.

2020) (“The ALJ is not permitted to cherry pick from the

treatment record only evidence that is inconsistent with the

treating source's opinion in order to conclude that the opinion

should be accorded less weight.”) (citing McGill v. Saul, No.

18-CV-6430, 2020 WL 729774, at *4 (E.D.N.Y. Feb. 13, 2020));

Sena v. Berryhill, No. 17-CV-912, 2018 WL 3854771, at *9 (D.

Conn. Aug. 14, 2018) (“It is well-settled that an ALJ may not

‘cherry-pick’ evidence by ‘improperly crediting evidence that

supports findings while ignoring conflicting evidence from the

same source.’”) (quoting Rodriguez v. Colvin, No. 13-CV-1195,

2016 WL 3023972, at *2 (D. Conn. May 25, 2016)).

Moreover, though Plaintiff was in partial remission,

treatment notes from both Dr. Jano and Dr. Whittingham diagnosed

Plaintiff’s “recurrent major depressive disorder” and increasing

anxiety towards the end of 2019. (Id. at 1175-76, 1600, 2041.)

In Estrella, district courts were cautioned against relying on a

select few mental status evaluations because mental illness can

occur in “cycles of improvement and debilitating symptoms.”

Estrella, 925 F.3d at 97 (citation omitted). Lastly, the ALJ

also overlooked that Dr. Jano based her opinions on her entire

treatment history with Plaintiff, from 2016 onward, which

considered Plaintiff’s past symptoms and any improvements. (ECF

No. 23, Tr. at 35-36, 572, 587.) The ALJ’s first report

afforded “great weight” to Dr. Jano’s opinion. (Id. at 138.)

In the ALJ’s second report, the 2018 consultative

examination by Dr. Sylvestre was cited by the ALJ as a basis for

discounting Dr. Jano’s opinion. (Id. at 35.) This is

particularly relevant because the mental status evaluations by

Dr. Sylvestre only show snapshots of Plaintiff’s mental status

in 2018, and not the preceding years. The Court again

emphasizes that the Commissioner’s regulations state that the

“level of [mental] functioning may vary considerably over time,”

and suggest the ALJ should examine longitudinal evidence from

relevant sources. 20 C.F.R. Part 404, Subpart P, Appendix 1, §

12.00D2. By relying only on mental status evaluations from

2018, the ALJ erred in discounting and assigning “partial

weight” to Dr. Jano’s opinion. “[I]t is [also] well established

that the ALJ should not rely on a consultive examiner’s opinions

after a single examination over a treating physician.” Syska v.

Saul, 19-cv-7212 (KAM), 2021 WL 2190986, at *6 (E.D.N.Y. May 31,

2021) (citing Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990)).

Dr. Jano has considerably more insight into Plaintiff’s symptoms

and related limitations from her years-long treating

relationship than Dr. Sylvestre does from a one-time

consultative examination of Plaintiff.

Furthermore, the Second Circuit amplified its opinion

in Estrella and cautioned ALJ’s against using mental status

evaluations alone to draw conclusions about the weight afforded

to treating physicians. Stacey v. Comm'r of Soc. Sec. Admin.,

799 F. App’x 7, 11 (2d Cir. 2020). In Stacey, the Second

Circuit noted that “It would be improper to rely on these mental

status evaluations to conclude that Stacey is capable of

prolonged concentration while simultaneously ignoring the

contrary conclusion of the very physicians who made the

evaluations. Neither we nor the ALJ may ‘substitute [our] own

expertise or view of the medical proof for the treating

physician’s opinion.’” Stacey, 799 F. App’x at 11 (quoting

Shaw, 221 F.3d at 134.) The ALJ focused on Dr. Jano’s note

about Plaintiff’s memory, concentration, and attention as

“grossly intact” but did not discuss everything else encompassed

in Dr. Jano’s record. (ECF No. 23, Tr. at 35.) By relying on

these “normal” mental status evaluations alone to refute other

aspects of Dr. Jano’s evaluations, the ALJ improperly

substituted her own medical opinion for that of the treating

physician. See Shaw, 221 F.3d at 134-35. As previously noted,

“[t]he substantial evidence standard means once an ALJ finds

facts, [the court] can reject those facts ‘only if a reasonable

factfinder would have to conclude otherwise.’” Brault, 683 F.3d

at 448 (citations omitted). Here, the Court finds that a

reasonable factfinder would have to conclude that the rest of

Dr. Jano’s treatment notes and opinion constitute substantial

evidence inconsistent with Dr. Jano’s few mental status

evaluations that note some of Plaintiff’s mental functions are

“grossly intact.” Accordingly, the few mental status

evaluations by Dr. Jano upon which the ALJ relies, do not

constitute substantial evidence from which a treating

psychiatrist can be discounted.

The Court turns to the remaining reason the ALJ gave

for discounting Dr. Jano’s opinion: Plaintiff’s activities of

daily living. The ALJ erred by mischaracterizing evidence of

Plaintiff’s daily living activities when concluding that Dr.

Jano’s opinion was inconsistent with substantial evidence in the

record. Specifically, the ALJ noted that Dr. Jano’s opinion

that Plaintiff had “none to marked” limitations in social

interactions was inconsistent with Plaintiff’s reported ability

to spend time with his wife and family. (ECF No. 23, Tr. at

35.) The ALJ also cited evidence suggesting Plaintiff could

provide care for his disabled wife, watched television, and

could perform his own self-care. (Id. at 36.)

Though Plaintiff’s activities during the alleged

disability period can be relevant in the determination of the

severity of a mental or physical impairment, this is not the

case here. See Cichocki v. Astrue, 729 F.3d 172, 178 (2d Cir.

2013) (finding that ALJ properly relied on claimant’s reported

daily activities in concluding that the claimant could perform

some work). The evidence in the record shows that Plaintiff

lives with his wife, spent time with his sisters, and interacted

with his family on holidays. (ECF No. 23, Tr. at 63, 537, 1249,

1646, 1983, 2041.) He accompanied his wife to doctor’s

appointments and provided some care for her. (Id. at 66, 1983.)

If there are no appointments, Plaintiff testified that he stayed

in his room or apartment all day and watched television. (Id.

at 65-66, 562-63.) Plaintiff stated that he does not cook,

clean, do chores, or go shopping. (Id. at 66.)

The Court finds that evidence of Plaintiff’s ability

to engage in periodic daily activities is insufficient for the

ALJ to discount the treating physician’s opinion regarding

Plaintiff’s inability to engage in substantial gainful

employment. See Balsamo v. Chater, 142 F.3d 75, 78 (2d Cir.

1998) (holding the plaintiff’s ability to “periodically” attend

church and “on an occasion” help his wife go shopping is not

evidence that plaintiff could engage in these activities for

sustained periods required to hold a sedentary job); Colgan v.

Kijakazi, 22 F.4th 353, 363 (2d Cir. 2022)(“[W]e disagree with

the ALJ that Colgan’s ability to engage in certain activities of

daily living—such as caring for her two children, preparing

meals and washing dishes, and driving to her medical

appointments—provided substantial record evidence to discount

Dr. Ward's medical opinion.”). “[A] finding that a claimant is

capable of undertaking basic activities of daily life cannot

stand in for a determination of whether that person is capable

of maintaining employment, at least where there is no evidence

that the claimant ‘engaged in any of these activities for

sustained periods comparable to those required to hold a

sedentary job.’” Bigler v. Comm'r of Soc. Sec., No. 19-CV-03568

(AMD), 2020 WL 5819901, at *5 (E.D.N.Y. Sept. 29, 2020)

(citation omitted)); see also Murdaugh v. Sec'y of Dep't of

Health & Human Servs., 837 F.2d 99, 102 (2d Cir. 1988) (“[T]hat

appellant receives conservative treatment, waters his landlady’s

garden, occasionally visits friends and is able to get on and

off an examination table is scarcely said to controvert the

medical evidence.”). Even Plaintiff’s ability to watch

television is not substantial or sufficient evidence to discount

a treating psychiatrist’s findings about Plaintiff’s ability to

pay attention, concentrate, and remember in a workplace.

Stacey, 799 F. App’x 7 at 10 (“We doubt that watching

television—a largely passive activity—says anything at all about

a claimant’s ability to concentrate on even simple work tasks.”)

The Court finds, for the preceding reasons, the mental

status evaluations and the evidence of Plaintiff’s activities of

daily living, individually or in combination, do not constitute

substantial evidence for the ALJ to have ignored the controlling

opinions of Dr. Jano, Plaintiff’s treating psychiatrist.

C. The ALJ’s Formulation of the Plaintiff’s RFC

The Court finds that Plaintiff’s RFC is not supported

by medical evidence and a medical opinion, thus warranting a

remand. “[A]n ALJ’s RFC determinations must be supported by a

medical opinion in the record at the time.” Pearson v. Comm'r

of Soc. Sec., No. 20-CV-3030 (AMD), 2021 WL 3373132, at *4

(E.D.N.Y. Aug. 3, 2021). “Although an RFC determination is an

issue reserved for the Commissioner, the ALJ is a layperson, and

as such is not qualified to assess a claimant's RFC on the basis

of bare medical findings.” Raymond M. v. Comm'r of Soc. Sec.,

No. 5:19-CV-1313 (ATB), 2021 WL 706645, at *11 (N.D.N.Y. Feb.

22, 2021) (quoting Anderson v. Comm'r of Soc. Sec., No. 19-CV-

464-HBS, 2020 WL 5593799, at *3 (W.D.N.Y. Sept. 18, 2020)).

In the present case, the ALJ discounted and assigned

“partial weight” to both Dr. Jano’s treating opinion and Dr.

Sylvestre’s consulting opinion. (ECF No. 23, Tr. at 35-36.)

Dr. Jano opined that Plaintiff had “moderate-to-marked” and

“marked” limitations in certain areas of mental functioning,

including his ability to concentrate, remember, and pay

attention, which interfered with Plaintiff’s overall ability to

carry out these activities for up to a third of the workday.

(Id.) The ALJ discounted Dr. Jano’s opinion using the mental

status evaluations and Plaintiff’s activities of daily living

and found that the record supports no more than “moderate”

limitations. (Tr. at 35.) The ALJ did not explain or evaluate

the quantitative limits assigned to each of the “moderate”,

“moderate-to-marked”, and “marked” limitations, set forward by

Dr. Jano, in the Plaintiff’s RFC. (Id. at 35, 571, 586.)

Dr. Sylvestre observed Plaintiff had difficulty

concentrating and needed questions over-explained and

simplified. (Id. at 561.) Dr. Sylvestre also observed that

Plaintiff’s concentration and attention were intact, but also

noted his confused thoughts, and mildly impaired memory. (Id.

at 561-62.) Dr. Sylvestre found Plaintiff had no limitations

with his ability to understand, remember, and apply simple

directions and a “mild” limitation with respect to complex

instructions. (Id. at 563.) Dr. Sylvestre also found Plaintiff

had “moderate” limitation “in his ability to interact adequately

with supervisors, co-workers, and the public; sustain an

ordinary routine and regular attendance at work; and to regulate

emotions, control behavior, and maintain well-being.” (Id.)

The ALJ also discounted Dr. Sylvestre’s opinion as inconsistent

with observations made in her own examination showing Plaintiff

was confused and needed questions over-explained and simplified.

(Id. at 36.) The ALJ found that the Plaintiff had more than the

“none-to-mild” limitations assessed by Dr. Sylvestre. (Id.)

The ALJ’s findings of no more than “moderate”

limitations in the functional areas of understanding, memory,

concentration, and persistence are not supported by the medical

evidence and opinions. (Id. at 35-36.) The ALJ used the raw

observations from Dr. Sylvestre’s one-time, consultative mental

status examination to supplant Dr. Jano’s opinion and imposed

her own conclusion that Plaintiff had more than “mild”

limitations, but no more than “moderate” limitations, in the

functional areas of understanding, memory, concentration, and

persistence. (Id. at 36.) The ALJ gave more weight to the one-

time mental status findings by Dr. Sylvestre to formulate

Plaintiff’s RFC. As noted above, the Second Circuit has

“frequently cautioned that ALJs should not rely heavily on the

findings of consultative physicians after a single examination.”

Estrella, 925 F.3d at 98 (citing Selian, 708 F.3d at 419)

(internal quotations omitted).

With divergent medical opinions, the ALJ seemingly

split the difference between “no limitations” found by Dr.

Sylvestre and “moderate-to-marked” and ”marked” limitations

found by Dr. Jano, and concluded Plaintiff had no more than

“moderate” limitations, without citing substantial evidence in

the record to support this conclusion. See Mariani v. Colvin,

567 Fed. App'x. 8, 11 (2d Cir. 2014) (summary order) (“Medical

evidence at both ends of the spectrum ... is not substantial

evidence for a finding that the extent of the disability is

fifty percent capacity”); Michael S. v. Comm'r of Soc. Sec., No.

1:19-CV-01479-JJM, 2021 WL 856908, *8 (W.D.N.Y. Mar. 8, 2021)

(remanding where the ALJ crafted an RFC that fell in the middle

of significant limitations and non-existent limitations without

some more substantial evidence.) Crucially, by using her lay

perspective to translate the medical findings, without the

support of a medical examiner’s opinion, the ALJ erred. On

remand, the ALJ must adequately support Plaintiff’s RFC with a

medical opinion backed by substantial evidence or cite to

specific, substantial evidence for a finding of only “moderate”

limitations in the functional areas of understanding, memory,

concentration, and persistence.

Finally, the ALJ committed legal error by failing to

account for limitations found by both the treating psychiatrist

and the consultative examiner. Both Dr. Jano and Dr. Sylvestre

found that Plaintiff’s symptoms would cause absenteeism and time

off-task, but neither limitations are included in the

Plaintiff’s RFC, nor does the ALJ give an explanation for their

omission. (ECF No. 23, Tr. at 35-36, 563, 571, 586.) Moreover,

where medical sources have differing RFC opinions, “[a]n ALJ’s

failure to reconcile such materially divergent RFC opinions of

medical sources is [ ] a ground for remand.” Cabassa v. Astrue,

No. 11-cv-1449, 2012 WL 2202951, at *7 (E.D.N.Y. Jun. 13, 2012).

This is especially true where the ALJ discounts the opinion of

the treating physician. See Kennedy v. Astrue, 343 F. App’x

719, 721 (2d Cir. 2009) (summary order) (“Where an ALJ fails

properly to acknowledge [the treating physician rule] or to

provide ‘good reasons’ for the weight given to the treating

physician’s opinion, we do not hesitate to remand.” (citation

omitted)). Accordingly, the Court remands this case based on

the ALJ’s failure to afford controlling weight to the treating

psychiatrist’s opinions in formulating Plaintiff’s RFC, and

failure to provide reasons for not affording controlling weight.

III. Plaintiff’s Remaining Claims

Plaintiff's remaining arguments suggest that the ALJ

erred in assessing Plaintiff's credibility. (ECF No. 18, Pl.

Mem. at 8-11.) As set forth above, the Court finds that the

ALJ’s RFC determination was not based on substantial evidence.

Specifically, the ALJ erroneously discounted part of the

treating psychiatrist, Dr. Jano’s opinions. On remand, the ALJ

must conduct a new evaluation of the evidence, which may alter

the current administrative decision. Because the Court has

already determined that remand is appropriate for a proper

evaluation of Plaintiff's treating source opinions and RFC

determination, it need not address the ALJ's findings regarding

Plaintiff's credibility. See Rosa v. Callahan, 168 F. 3d 72, 82

n.7 (2d Cir. 1999)(“Because we have concluded that the ALJ was

incorrect in her assessment of the medical evidence, we cannot

accept her conclusion regarding . . . credibility.”); Jeanniton

v. Berryhill, 2017 WL 1214480, at *12 (E.D.N.Y. Mar. 31, 2017);

Rivera v. Comm’r of Soc. Sec., 728 F. Supp. 2d 297, 331

(S.D.N.Y. 2010) (“Because I find legal error requiring remand, I

need not consider whether the ALJ’s decision was otherwise

supported by substantial evidence.”) (internal citations

omitted).

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for

judgment on the pleadings is GRANTED, Defendant’s cross-motion for

judgment on the pleadings is DENIED, and the case is REMANDED for

further proceedings consistent with this Memorandum and Order.

The Clerk of Court is directed to enter judgment remanding this

case, and to close the case.

SO ORDERED.

DATED: November 4, 2022

Brooklyn, New York

__________/s/_______________

HON. KIYO A. MATSUMOTO

United States District Judge