Cavaggioni v. Saul

NORTHERN DISTRICT OF NEW YORK

GABRIEL C.,1

Plaintiff,

v. 6:18-CV-671

(ATB)

COMMISSIONER OF SOCIAL SECURITY,2

Defendant.

B. BROOKS BENSON, ESQ., for Plaintiff

JOSHUA L. KERSHNER, Special Asst. U.S. Attorney, for Defendant

ANDREW T. BAXTER

United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER

This matter was referred to me, for all proceedings and entry of a final judgment,

pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in

accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.

Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 6).

I. PROCEDURAL HISTORY

On March 26, 2015, plaintiff filed an application for disabled child’s Social

Security benefits (“DIB”), alleging disability beginning July 13, 1996. (Administrative

Transcript (“T”) at 13, 219). The application was denied initially on September 23,

1 In accordance with recent guidance from the Committee on Court Administration and Case

Management of the Judicial Conference of the United States, which was adopted by the Northern

District of New York in June 2018 in order to better protect personal and medical information of non-

governmental parties, this Memorandum-Decision and Order will identify the plaintiff using only his

first name and last initial.

2On June 17, 2019, Andrew Saul was sworn in as the new Commissioner of Social

Security. Noting that former acting Commissioner Nancy A. Berryhill is still named as the

defendant in this matter, the Clerk of the Court is directed to change the docket to reflect Andrew

December 15, 2016, at which plaintiff and Vocational Expert (“VE”) Barry Brown

testified. (T. 31-64). On May 19, 2017, ALJ Gibbs found that plaintiff was not

disabled. (T. 13-27). The ALJ’s decision became the Commissioner’s final decision

when the Appeals Council denied plaintiff’s request for review on April 4, 2018. (T. 1-

4).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI

disability benefits must establish that 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 twelve months…..” 42 U.S.C. § 1382c(a)(3)(A). In

addition, the plaintiff’s

physical or mental impairment or impairments [must be] of such severity

that he is not only unable to do his previous work but cannot, considering

his age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy, regardless

of whether such work exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or whether he would be hire

if he applied for work

42 U.S.C. § 1382(a)(3)(B). The Commissioner uses a five-step process, set forth in 20

C.F.R. sections 404.1520 and 416.920, to evaluate disability insurance and SSI

disability claims.

First, the [Commissioner] considers whether the claimant is currently

engaged in substantial gainful activity. If he is not, the [Commissioner]

significantly limits his physical or mental ability to do basic work

activities. If the claimant suffers such an impairment, the third inquiry is

whether, based solely on medical evidence, the claimant has an impairment

which meets or equals the criteria of an impairment listed in Appendix 1 of

the regulations. If the claimant has such an impairment, the

[Commissioner] will consider him disabled with-out considering vocational

factors such as age, education, and work experience… Assuming the

claimant does not have a listed impairment, the fourth inquiry is whether,

despite the claimant’s severe impairment, he has the residual functional

capacity to perform his past work. Finally, if the claimant is unable to

perform his past work, the [Commissioner] then determines whether there

is other work which the claimant can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,

416.920. The plaintiff has the burden of establishing disability at the first four steps.

However, if the plaintiff establishes that his impairment prevents him from performing

his past work, the burden then shifts to the Commissioner to prove the final step. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine

whether the correct legal standards were applied and whether substantial evidence

supported the decision. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Brault v.

Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).

It must be “more than a scintilla” of evidence scattered throughout the administrative

record. Id. However, this standard is a very deferential standard of review, “even more

so than the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.

“To determine on appeal whether an ALJ’s findings are supported by substantial

both sides, because an analysis of the substantiality of the evidence must also include

that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859 F.2d

255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its

interpretation of the administrative record for that of the Commissioner, if the record

contains substantial support for the ALJ’s decision. Id. See also Rutherford v.

Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

An ALJ is not required to explicitly analyze ever piece of conflicting evidence in

the record. See, e.g., Monguer v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v.

Harris, 645 F.2d 122, 124 (2d Cir. 1981) (Finding we are unwilling to require an ALJ

explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ

cannot “pick and choose evidence in the record that supports his conclusions.” Cruz v.

Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09-CV-

6279, 2010 WL 5072112 (W.D.N.Y. Dec. 6, 2010).

III. FACTS

As of the date of the administrative hearing, plaintiff was 20 years old. (T. 34).

He lived at home with his father, and was enrolled in his third semester at Mohawk

Valley Community College (“MVCC”) as a full-time student. (T. 36-37, 152).

Plaintiff was previously diagnosed with autism spectrum disorder, Attention

Deficit Hyperactive Disorder, depression, and a generalized anxiety disorder. (T. 37-38,

46). As a result of his diagnoses, he had difficulty concentrating and with organization.

(T. 38-39). Plaintiff noticed that he “zoned out” often. (T. 43). He also struggled with

working in groups. (T. 41-42). Large crowds gave him a headache and caused him

misplacing items and forgetting to do school work. (T. 43-45). His depression

manifested as headaches, crying, and feelings of isolation and worthlessness, but

“nothing too radical or extreme.” (T. 47). As a result of his anxiety, plaintiff panicked

when faced with stressful situations. (T. 47). He had trouble sitting still for movies and

church, and slurred his words when he became “fidgety.” (T. 49, 51-53). Plaintiff

testified that he did not deal well with change. (T. 54-55).

Plaintiff treated with Licensed Mental Health Counselor (“LMHC”) Karen L.

Flemming, who worked under the supervision of psychologist Andy Lopez-Williams,

Ph.D. (T. 37). He did not take any psychiatric medication for his condition. (T. 46).

He spent his time at school, with friends, at doctor’s appointments, or at home. (T. 51).

He was enrolled in general education courses at MVCC, and received testing

accommodations. (T. 39). He would ask for extra help from his professors when

needed. (T. 40). He testified that his grades were “good.”3 (T. 41). He had “a few

friends” and experienced some difficulty in high school when a few close friends moved

away. (T. 48).

Plaintiff further testified that his left hand is slightly bigger than his right hand.

As a result, he lacked some motor function in his left hand, however he could still zip

his jacket, tie shoes, button his own shirts and write.4 (T. 59). He could use a keyboard

3Plaintiff later testified about struggling to take an online psychology course at MVCC.

(T. 55-56). Because he was not familiar with the platform, and due to his procrastination, he

“freaked out over it” and ultimately “failed” the course with a D. (Id.). He later retook the same

course in a classroom setting and passed. (Id.).

4Plaintiff is right-handed. (T. 58).

The ALJ’s decision provides a detailed statement of the medical and other

evidence of record (T. 13-27), and plaintiff’s counsel has reviewed the medical evidence

extensively in his brief. (Plaintiff’s Brief (“Pl.’s Br.”) at 1-9) (Dkt. No. 13). Rather

than reciting this evidence at the outset, the court will discuss the relevant details below,

as necessary to address the issues raised by plaintiff.

IV. THE ALJ’S DECISION

At step one, the ALJ found that plaintiff had not engaged in substantial gainful

activity since July 13, 1996, the alleged onset date. (T. 15). At step two, the ALJ

found the following severe impairments: left-sided enlargement of hand, of unknown

etiology; depression; anxiety; attention deficit hyperactive disorder; and autism

spectrum disorder. (Id.).

At step three of the sequential analysis, the ALJ found that none of plaintiff’s

severe impairments, alone or in combination, met or equaled the severity of a Listed

Impairment. In reaching this determination, the ALJ considered listings 1.00

Musculoskeletal System and 11.00 Neurological, but determined that the medical

evidence did not support the level of severity necessary for these listings. (T. 16). The

ALJ further considered listing 12.02 Neurocognitive Disorders; 12.04 Depressive,

Bipolar and Related Disorders; 12.06 Anxiety and Obsessive-Compulsive Disorders;

and 12.10 Autistic Disorder and Other Pervasive Developmental Disorders. (Id.).

However, in considering whether the “paragraph B” criteria were satisfied, the ALJ

found that plaintiff’s mental impairments failed to meet these listings.

At step four, the ALJ found that plaintiff had the RFC to perform light work, that

plaintiff’s hands for fine manipulation; interaction with the general public or exposure

to crowds; working on an assembly line or other fast paced work; or more than

superficial interaction with coworkers. (T. 18). The ALJ then determined that plaintiff

had no past relevant work. However, relying on the VE’s testimony, the ALJ found that

there were jobs that existed in significant numbers in the national economy that plaintiff

could perform. (T. 25-26). Accordingly, the ALJ determined that plaintiff was not

disabled through the date of her decision. (T. 26).

V. ISSUES IN CONTENTION

Plaintiff raises the following arguments:

1. The ALJ erred in failing to give controlling weight to the opinion of

plaintiff’s treating neuropsychologist that plaintiff’s mental impairments

meet listings 12.04, 12.06, 12.08, 12.10 and 12.11.

2. The ALJ erred in failing to give controlling weight to the opinion of

plaintiff’s treating psychologist that plaintiff cannot meet the basic mental

demands of unskilled work because of his mental impairments.

3. The ALJ erred in failing to properly develop the record, by not requesting

clarifying assessments from plaintiff’s treating neuropsychologist and

therapist.

4. The ALJ erred in relying on the VE’s testimony as to jobs available to

plaintiff.

(Pl.’s Br. at 9-25). Defendant argues that the ALJ properly evaluated the opinion

evidence, and her decision is supported by substantial evidence. (Defendant’s Brief

(“Def’s Br.”) at 6-18) (Dkt. No. 18). For the following reasons, this court agrees with

the defendant and will affirm the Commissioner’s decision.

VI. LISTED IMPAIRMENT

A. Legal Standard

At step three of the disability analysis, the ALJ must determine if plaintiff suffers

from a listed impairment. See 20 C.F.R. §§ 404.1520, 416.920. It is the plaintiff’s

burden to establish that his or her medical condition or conditions meet all of the

specific medical criteria of particular listed impairments. Pratt v. Astrue, No. 7:06-CV-

551, 2008 WL 2594430 at *6 (N.D.N.Y. June 27, 2008) (citing Sullivan v. Zebley, 493

U.S. 521, 530 (1990)). If a plaintiff’s “impairment ‘manifests only some of those

criteria, no matter how severely,’ such impairment does not qualify.” Id. In order to

demonstrate medical equivalence, a plaintiff “must present medical findings equal in

severity to all the criteria for the one most similar listed impairment.” Sullivan v.

Zebley, 493 U.S. at 531 (emphasis added).

B. Application

Plaintiff raises several arguments with respect to the ALJ’s step three analysis.

First, plaintiff argues that the ALJ’s determination that plaintiff did not meet the

paragraph B criteria was not supported by substantial evidence. Plaintiff further argues

that the ALJ erred in failing to assess whether plaintiff met the paragraph C criteria of

Listings 12.04 and 12.06, as an alternative to the paragraph B criteria. Last, plaintiff

argues that the ALJ erred in neglecting to consider whether plaintiff met the criteria of

Listings 12.08 and 12.11.

meet listing 12.04 (Depressive, Bipolar and Related Disorders), a claimant must

establish the criteria of paragraphs A and B or the criteria of paragraphs A and C. 20

C.F.R. § 404, Subpart P, App. 1, Listing 12.04. The paragraph A criteria requires

medical documentation of either a depressive disorder or bipolar disorder, while

paragraph B requires extreme limitation of one area or a marked limitation of two areas

of mental functioning, which include (1) understanding, remembering or applying

information, (2) interacting with others, (3) concentrating, persisting or maintaining

pace, and (4) adapting or managing oneself. Id. Paragraph C requires a medically

documented history of the existence of the disorder over a period of at least two years,

with evidence of both (a) medical treatment, mental health therapy, psychosocial

support(s), or a highly structured setting(s) that is ongoing and that diminishes the

symptoms and signs of the mental disorder; and (b) marginal adjustment, that is,

minimal capacity to adapt to changes in environment or to demands that are not already

part of daily life. Id.

A claimant’s burden for meeting listing 12.06 (Anxiety and Obsessive

Compulsive Disorders) is similar, requiring the claimant to establish the criteria of

paragraphs A and B or the criteria of paragraphs A and C. 20 C.F.R. § 404, Subpart P,

App. 1, Listing 12.06. Paragraph A entails medical documentation of an anxiety

disorder; panic disorder or agoraphobia; or obsessive-compulsive disorder. Id.

5The ALJ also considered listing 12.02 (Neurocognitive Disorders) as a part of her step

three analysis, however plaintiff does not appear to dispute the ALJ’s findings with respect to

this listing. (Pl.’s Br. at 9-20).

two areas of mental functioning. Id. The “serious and persistent” criteria for paragraph

C are also identical to those under listing 12.04. Id.

To meet listing 12.10 (Autism Spectrum Disorder), a claimant must establish the

criteria of both paragraph A and paragraph B. 20 C.F.R. § 404, Subpart P, App. 1,

Listing 12.10. Paragraph A requires medical documentation of both (1) qualitative

deficits in verbal communication, nonverbal communication, and social interaction; and

(2) significantly restricted, repetitive patterns of behavior, interests, or activities. (Id.).

Paragraph B requires the same extreme limitation of one area or a marked limitation of

two areas of mental functioning. Id.

In her decision, the ALJ explicitly discussed each of the paragraph B criteria, and

cited evidence in the record supporting each consideration. (T. 16-18). To that end, the

ALJ found that plaintiff had mild limitations for understanding, remembering or

applying information. (T. 16). This area of mental functioning refers to plaintiff’s

ability to learn, recall, and use information to perform work activities. 20 C.F.R. § 404,

Subpart P, App. 1, Listing 12.00(E)(1). Examples (not an exhaustive list) include

understanding and learning terms, instructions, procedures; following one- or two-step

instructions to carry out a task; describing work activity to someone else; asking and

answering questions and providing explanations; recognizing a mistake and correcting

it; identifying and solving problems; sequencing multi-step activities; and using reason

and judgment to make work-related decisions. Id. In concluding that plaintiff had mild

limitations in this domain, the ALJ considered plaintiff’s testimony that he was a high

school graduate and had completed three semesters at MVCC, where he was enrolled

Ph.D., who noted that plaintiff’s attention and concentration were intact, as well as his

recent and remote memory skills. (T. 16-17; 238). In further support of her opinion, the

ALJ cited a report prepared by plaintiff’s psychologist, Andy Lopez-Williams, Ph.D.,

noting that plaintiff’s psychological test scores relative to memory skills ranged from

low average to high average. (T. 17).

With respect to interacting with others, the ALJ concluded that plaintiff had

moderate limitations. (T. 17). This area of mental functioning refers to the plaintiff’s

ability to relate and work with supervisors, co-workers, and the public. 20 C.F.R. § 404,

Subpart P, App. 1, Listing 12.00 (E)(2). Examples within this domain include

cooperating with others; asking for help when needed; handling conflicts with others;

stating own point of view; initiating or sustaining conversation; understanding and

responding to social cues; responding to requests, suggestions, criticism, correction, and

challenges; and keeping social interactions free of excessive irritability, sensitivity,

argumentativeness, or suspiciousness. (Id.). In support of her determination, the ALJ

acknowledged plaintiff’s reported anxiety in social situations, but cited to medical

evidence from both treating sources and the consultative opinion indicating that plaintiff

had friends, had no difficulty interacting with college professors (but did experience

difficulty interacting with his peers), and denied having panic attacks in large crowds.

(T. 17). This court also notes that plaintiff was a volunteer at Ft. Stanwix during the

relevant period of alleged disability, where his duties included answering visitors’

questions and participating in civil war re-enactments. (T. 437). The ALJ further cited

Dr. Shapiro’s statement that, upon examination, plaintiff’s demeanor and responsiveness

presentation were adequate. (Id.). The ALJ recognized that plaintiff’s demeanor and

responsiveness at the administrative hearing were equally as appropriate. (Id.).

The ALJ next determined that plaintiff had mild limitations with regard to

concentrating, persisting or maintaining pace. (T. 18). This area of mental functioning

refers to the plaintiff’s ability to focus attention on work activities and stay on task at a

sustained rate. 20 C.F.R. § 404, Subpart P, App. 1, Listing 12.00(E)(3). Examples in

this domain include initiating and performing a task that you understand and know how

to do; working at an appropriate and consistent pace; completing tasks in a timely

manner; ignoring or avoiding distractions while working; changing activities or work

settings without being disruptive; working close to or with others without interrupting or

distracting them; sustaining an ordinary routine and regular attendance at work; and

working a full day without needing more than the allotted number or length of rest

periods during the day. (Id.). In making this determination, the ALJ considered

plaintiff’s testimony that he sometimes waited to complete school assignments, causing

him anxiety; however the ALJ also noted Dr. Shapiro’s assessment that plaintiff’s

concentration was intact. (T. 18). Dr. Shapiro further indicated that plaintiff’s

intellectual functioning was estimated to be in the average range, and that his general

fund of knowledge appeared to be appropriate to experience. (Id.). The ALJ also

evaluated plaintiff’s reported difficulty concentrating and staying organized in

conjunction with his ability to complete three semesters of college at MVCC. (Id.). She

acknowledged that plaintiff’s father managed his money, and that plaintiff, at times,

reportedly lost track of his environment. (T. 18). However, plaintiff also reported that

cold food, general cleaning, shopping, driving, and using public transportation. (T. 18).

The ALJ particularly relied on plaintiff’s ability to drive as requiring more than a

minimal level of concentration. (Id.).

Last, the ALJ determined that plaintiff had mild limitations for adapting or

managing oneself. (Id.). This area of mental functioning refers to plaintiff’s ability to

regulate emotions, control behavior, and maintain well-being in a work setting. 20

C.F.R. § 404, Subpart P, App. 1, Listing 12.00(E)(4). Examples include responding to

demands; adapting to changes; managing psychologically based symptoms;

distinguishing between acceptable and unacceptable work performance; setting realistic

goals; making plans independently of others; maintaining personal hygiene and attire

appropriate to a work setting; and being aware of normal hazards and taking appropriate

precautions. Id. In support of her determination, the ALJ referenced plaintiff’s college

experience and his ability to prepare food, do housework, drive, and use public

transportation. (T. 18). She noted that “[plaintiff’s] medical records for the period

under consideration do not show that his limitation in this area is greater than mild.”

(Id.). Furthermore, plaintiff’s high school records consistently reflect his intention to

pursue a post-secondary degree, and his consideration of historian as a chosen career

path. (T. 187, 196-198). Plaintiff was also noted to be “able to adjust to community

environments” with respect to his enrollment at MVCC. (T. 175).

Based on the ALJ’s analysis, which is supported by treatment notes, hearing

testimony, and medical opinions of record, her determination that plaintiff’s limitations

did not satisfy the paragraph B criteria was supported by substantial evidence. See

*3 (N.D.N.Y. July 6, 2016) (Rep’t-Rec.) (“[u]nder the substantial evidence standard of

review, it is not enough for [p]laintiff to merely disagree with the ALJ’s weighing of the

evidence or to argue that the evidence in the record could support her position[;]

[p]laintiff must show that no reasonable factfinder could have reached the ALJ’s

conclusion based on the evidence in record”), adopted, 2016 WL 4401374 (N.D.N.Y.

Aug. 18, 2016).

Plaintiff argues that the ALJ erred in failing to adopt the “marked” and “extreme”

limitations assessed by LMHC Flemming and Dr. Lopez-Williams in rendering her step

three determination. While this argument is discussed in greater detail in the next

section regarding plaintiff’s RFC, the court will address plaintiff’s contention that the

ALJ should have obtained clarifying opinions from these treatment providers in light of

the contemporaneous listings modification.

On September 26, 2016, the Social Security Administration (“SSA”) provided

notice of its modification of “the criteria in the Listing of Impairments (listings) that [it]

use[s] to evaluate claims involving mental disorders in adults and children under titles II

and XVI of the Social Security Act (Act).” Revised Medical Criteria for Evaluating

Mental Disorders, 81 Fed. Reg. 66138, 66138 (Sept. 26, 2016). The modifications,

however, did not go into effect until January 17, 2017, and the implementing regulations

stated that the SSA would “apply them to new applications filed on or after the effective

date of the rules, and to claims that are pending on or after the effective date.” (Id.).

Thus, an ALJ and any subsequent reviewing body is directed to apply the regulations

that were in effect at the time the ALJ rendered his or her decision. Id. Particularly

to January 17, 2017, consisted of the following areas of mental functioning: (1)

activities of daily living, (2) maintaining social function, (3) maintaining concentration,

persistence or pace, and (4) repeated episodes of decompensation, each of extended

duration. As previously set forth, the current paragraph B criteria implemented as of

January 17, 2017 are (1) understanding, remembering, or applying information, (2)

interacting with others, (3) concentrating, persisting or maintaining pace, and (4)

adapting or managing oneself.

Plaintiff’s administrative hearing was held on December 15, 2016, at which time

plaintiff’s attorney advised the ALJ that he had not yet obtained listings and RFC

opinion evidence from Dr. Lopez-Williams or LMHC Flemming, and he requested and

extension of time to do so. (T. 35-36). On January 6, 2017, Dr. Lopez-Williams and

LMHC Flemming prepared several reports on behalf of plaintiff, including an Autistic

Disorder and Other Pervasive Developmental Disorders Questionnaire (Listing 12.10);

an Adult Attention Deficit Hyperactivity Disorder Questionnaire; and a Mental

Impairment Questionnaire (RFC & Listings). (T. 441-54). These forms, appearing to

have been provided by plaintiff’s counsel, reference the paragraph B criteria in place

prior to the January 17, 2017 implementation date. (Id.). The ALJ analyzed these

reports and the other medical evidence of record in reaching her disability

determination. Her May 17, 2017 decision reflects her analysis of LMHC Flemming

and Dr. Lopez-Williams’s opinion evidence, however the ALJ did so utilizing the new

paragraph B criteria, per the regulations’ mandate.

Plaintiff argues that remand is appropriate because the ALJ failed to seek

the change in the [l]istings would have on their opinions.” (Pl.’s Br. at 23-24). The

court does not find this argument persuasive. As a threshold matter, the listings

modification was announced in September 2016, several months before the

administrative hearing was held in December 2016. As of the hearing, plaintiff had yet

to obtain any opinion evidence from his treatment providers. In fact, the record reflects

that plaintiff was granted an extension of time to January 11, 2017, to provide the ALJ

with the opinion evidence. (T. 234). Despite notice of the modification having been

published for the preceding five months, and the pending implementation date of

January 17, 2017, plaintiff ultimately submitted questionnaires to the providers which

referenced the pre-modification paragraph B criteria. Keeping in mind that the

“[p]laintiff has the burden of proof at step three to show that [his] impairments meet or

medically equal a Listing” (Rockwood v. Astrue, 614 F. Supp. 2d 252, 272 (N.D.N.Y.

2009) (Rep’t-Rec.), adopted, 614 F. Supp. 2d 252 (N.D.N.Y. 2009)), plaintiff had the

opportunity to obtain different questionnaires that identified the new paragraph B

criteria from his treatment providers, or at the very least seek clarification from the ALJ

as to how the modification to the listings would affect plaintiff’s case. Nevertheless,

plaintiff only now raises the issue before this court, on appeal.6

6The administrative record reflects that, upon receipt of the ALJ’s May 19, 2017

decision, plaintiff sought a review of the ALJ’s determination with the Appeals Council. (T.

143). Plaintiff’s request for review raises several contentions with respect to the ALJ’s findings,

however the listing modification and ALJ’s paragraph B analysis is not one of them. (Id.). In

the same letter, plaintiff requested an extension of time in which to submit “new and additional

material medical evidence,” as well as legal argument supporting plaintiff’s position. (Id.).

However, there is no evidence in the administrative record that plaintiff ever actually submitted

new evidence to the Appeals Council, including any opinion evidence identifying the new

paragraph B criteria.

Williams and LMHC Flemming at step three of her analysis, and her “failure” to seek

clarification with respect to the paragraph B modifications, was not error necessitating

remand. “Although an ALJ has the affirmative duty to develop the record, the ALJ’s

duty to develop the record is not ‘infinite.’” Peterson v. Berryhill, No. 17-CV-6397,

2018 WL 4232896, at *4 (W.D.N.Y. Sept. 5, 2018) (citing Tatelman v. Colvin, 296 F.

Supp. 3d 608, 612 (W.D.N.Y. 2017)). When “evidence in hand is consistent and

sufficient to determine whether a claimant is disabled, further development of the record

is unnecessary.” See id. (quoting Kinslow v. Colvin, No. 5:12-CV-1541 (GLS/ESH),

2014 WL 788793, at *4 n.10 (N.D.N.Y. Feb. 25, 2014)); see also Rosa v. Callahan, 168

F.3d 72, 79 n.5 (2d Cir. 1999) (where there are no “obvious gaps” in the record, the ALJ

is not obligated to seek additional information). Here, despite plaintiff’s contentions to

the contrary, there was no “conflict or ambiguity” presented by the treatment providers’

opinions that required clarification. Even assuming plaintiff’s treatment providers

found “marked” and “extreme” limitations for the new paragraph B criteria, as they did

with respect to the old paragraph B criteria, it would not alter the weight that the ALJ

ultimately afforded an opinion of such extreme limitations, or the existence of other

“clearly credible evidence” supporting the ALJ’s determination to the contrary. See

Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109, 112 (2d Cir. 2010) (finding step

three determination to be supported by substantial evidence “so long as we are able to

look to other portions of the ALJ’s decision and to clearly credible evidence . . .”)

(citations and quotations omitted). The SSA acknowledges, and plaintiff concedes, that

there is considerable overlap between the pre- and post-modification criteria of

provided, coupled with the remaining evidence of record, provided substantial evidence

to support the ALJ’s analysis of the paragraph B criteria. It was not, therefore,

incumbent on the ALJ to seek additional opinion evidence from plaintiff’s treatment

providers. See Gonzalez v. Colvin, 15 Civ. 5011, 2016 WL 6780000, at *18-19

(S.D.N.Y. Nov. 16, 2016) (finding that the ALJ had no further obligation to develop the

record where the letters in the medical record supported the ALJ’s decision); Tatelman

v. Colvin, 296 F. Supp. 3d 608, 612 (W.D.N.Y. 2017) (finding that the ALJ has fulfilled

the duty to develop the record where the plaintiff did not allege, nor was there evidence

to otherwise suggest, that additional records would have contained any findings or

evidence not already accounted-for in the 150 pages of medical documentation in the

record).

Next, I consider plaintiff’s argument that the ALJ failed to consider whether

plaintiff alternatively satisfied the paragraph C criteria for listings 12.04 and 12.06,

mandating a finding of disability.8 (Pl.’s Br. at 20-21). The paragraph C criteria for both

7See Pl.’s Br. at 12 (“Two of the [paragraph B criteria] are similar enough between “old”

and “new” (i.e. ‘social functioning’ and ‘interacting with others’ and ‘concentration, persistence

or pace[,]’ which are the same in both...”); Revised Medical Criteria for Evaluating Mental

Disorders, 81 Fed. Reg. at 66144 (“Rather than [activities of daily living] being one separate area

in which we evaluate a person’s functioning, ADL are now a source of information about all four

of the paragraph B areas of mental functioning.”); Id. (acknowledging “overlap” between new

criteria of “understand, remember and apply information” and remaining criteria of “concentrate,

persist and maintain pace); Id. at 66145 (“Additionally, we note that the content of the B4

criteria [adapting or managing oneself] is not new or different from what adjudicators are already

accustomed to evaluating and determining.”).

8The court assumes, and the Commissioner does not dispute, that plaintiff satisfied the

paragraph A criteria for listings 12.04 and 12.06. The ALJ previously found depression and

anxiety among plaintiff’s severe impairments, and the treatment records and medical opinion

evidence support a finding of the same. (T. 15).

minimal capacity to adapt to changes in his environment or to demands that are not

already part of his daily life. 20 C.F.R. 404 Subpt. P, App. 1, §§ 12.04(C), 12.06(C); see

also id. § 12.00(D) (outlining procedure for assessing treatment and psychosocial

support); id. § 12.00(G) (defining terms used in Subparagraph C). In this matter, a

finding that plaintiff satisfied the paragraph C criteria would render an automatic

determination that plaintiff was disabled under listings 12.04 and 12.06, regardless of

the paragraph B analysis.

Although plaintiff correctly argues that the ALJ did not discuss his eligibility

under subparagraph C, there was no legal error, as the evidence of record fails to

establish that plaintiff has only “marginal adjustment.” See Schildwachter. v. Berryhill,

No. 17-CV-7277, 2019 WL 1116256, at *7 (S.D.N.Y. Feb. 8, 2019) (finding harmless

error where the ALJ failed to explicitly assess paragraph C criteria in order to determine

plaintiff’s listing eligibility, in light of other portions of ALJ’s decision and clearly

credible evidence indicating that plaintiff could not meet the required criteria). The

regulations provide that marginal adjustment is achieved where changes or increased

demands have led to exacerbation of symptoms and signs, and to deterioration in

functioning. C.F.R. 404 Subpt. P, App. 1, § 12.00 (G)(2)(C). Examples of such

deterioration include the inability to function outside of your home or a more restrictive

setting, without substantial psychosocial support; the necessity for a significant change

in medication or other treatment; and episodes of deterioration that require

hospitalization. (Id.).

Here, plaintiff’s testimony and disability application indicate his ability to attend

monument, shop, prepare simple meals, socialize with a few close friends, care for his

cat, and complete household chores. (T. 36-37, 48, 152-60). Plaintiff’s high school

academic records outline plaintiff future intentions with respect to educational and

career goals, noting that plaintiff continued to make progress and “has become a leader

within the classroom.” (T. 198). Dr. Lopez-Williams noted plaintiff’s thought

processes were goal directed, organized, logical and linear, with future oriented thought

content. (T. 438). Plaintiff was not taking any psychiatric medication, nor is there any

indication that he had been hospitalized for a mental episode. Based on the ALJ’s

findings and the evidence of record, no reasonable fact finder could have found that

plaintiff had marginal adjustment. See Howarth v. Berryhill, No. 3:16-CV-1844, 2017

WL 6527432, at *7 (D. Conn. Dec. 19, 2017) (citing Fischer-Ross v. Barnhart, 431

F.3d 729, 735 (10th Cir. 2005) (applying harmless error to the ALJ’s failure to articulate

his reasoning where the ALJ’s findings elsewhere, “coupled with indisputable aspects of

the medical record,” indicate that “[n]o reasonable factfinder could conclude

otherwise”)); see also Jeffrey W. Berryhill, No. 1:18-CV-0115 (LEK), 2019 WL

2210593, at *7-8 (N.D.N.Y. May 22, 2019) (finding plaintiff did not satisfy the

paragraph C criteria with the requisite “marginal adjustment” where plaintiff’s daily

activities included managing money, playing poker, using his computer, driving a car,

shopping, cooking, fishing, walking the dogs, cleaning his clothes, and vacuuming, and

medical evidence indicated plaintiff’s good concentration, intact memory, normal

thought content, and goal oriented thought processes); Mitchell v. Berryhill, No.

16-CV-6588, 2018 WL 3300683, at *18 (S.D.N.Y. Feb. 2, 2018) (Rep’t-Rec), adopted

claimant did not have marginal adjustment where claimant had interactions with family

and friends at church, logical thoughts processes, intact judgment, good concentration,

and could cook, clean, shop, and do laundry).

The Mental Impairment Questionnaire submitted by LMHC Flemming and Dr.

Lopez-Williams indicates, without explanation, that plaintiff had a current history of

one or more years’ inability to function outside a highly supportive living arrangement,9

with an indication of continued need for such an arrangement. (T. 443). To the extent

plaintiff contends that this is evidence he satisfied the paragraph C criteria, as further set

forth below the court agrees that the extreme limitations in this questionnaire are not

supported by substantial evidence. It was, therefore, not improper to accord the opinion

minimal weight. See Schildwachter v. Berryhill, 2019 WL 1116256, at *7 (finding that

the ALJ’s weighing of competing medical evidence at other steps of disability analysis

was sufficient to justify the ALJ’s paragraph C determination, despite the ALJ’s failure

to specifically weigh the competing evidence of marginal adjustment).

Last, any error the ALJ committed by not explicitly discussing listings 12.08

9The regulations set forth the following regarding structured and supportive settings:

Particularly in cases involving chronic mental disorders, overt

symptomatology may be controlled or attenuated by psychosocial

factors such as placement in a hospital, halfway house, board and

care facility, or other environment that provides similar structure.

Highly structured and supportive settings may also be found in your

home. Such settings may greatly reduce the mental demands placed

o n y o u .

20 C.F.R. 404 Subpt. P, App. 1, §§ 12.00(F) (2016). Clearly, plaintiff was never placed in such a

structured facility, and the record lacks any indication that plaintiff’s home life provided structure akin

to that of a hospital, halfway house, or care facility.

Disorders) was harmless. Those listings have the same paragraph B requirements as

listings 12.04, 12.06, and 12.10.10 Compare 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§

12.04(B), 12.06(B), 12.10(B), with 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.08(B),

12.11(B). Thus, because the ALJ found that plaintiff’s mental impairments did not meet

the requirements of paragraph B for listings 12.04, 1206, and 12.10, he implicitly

determined that plaintiff’s impairments did not meet the criteria for listings 12.08 and

12.11. See, e.g., Cote v. Berryhill, No. 3:17-CV-01843, 2018 WL 4092068, at *12-13

(D. Conn. Aug. 28, 2018) (“[e]ach of the listings that were considered by the ALJ

(Listings 12.02 and 12.06) has the same paragraph B criteria as the listings plaintiff

argues should have been considered (Listings 12.08 and 12.10)[;] ... [a]s a result, the

ALJ did not err in failing to explicitly consider Listings 12.08 and 12.10[;] [t]he ALJ

assessed the paragraph B criteria for Listings 12.02 and 12.06, which are the same for

Listings 12.08 and 12.10, and the ALJ’s assessment of that criteria is supported by

substantial evidence”); Sweet v. Comm’r of Soc. Sec., 2016 WL 11478205, at *3 (“[a]ny

error the ALJ may have made in failing to specifically discuss Listing 12.04 was

harmless because the criteria outlined in 12.04(B) is identical to the paragraph (B)

criteria of Listing 12.02 and 12.04 and the criteria in 12.04(C) is identical to the (C)

criteria of 12.02(C)[;] [t]herefore, because the ALJ’s determination that the record did

not support a finding that [p]laintiff met the paragraph (B) and (C) criteria of Listings

10Unlike listings 12.04 and 12.06, listings 12.08 and 12.11 do not have an alternative

paragraph C criteria, and a plaintiff must satisfy both the paragraph A and paragraph B criteria in

order to meet the listing requirements. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.08, 12.11.

result that [p]laintiff did not meet Listing 12.04”); Rye v. Colvin, No. 2:14-CV-170,

2016 WL 632242, at *5-6 (D. Vt. Feb. 17, 2016) (“[b]ecause the ALJ assessed the

paragraph B criteria for Listing 12.04, and that criteria is the same for Listing 12.08, and

because the ALJ’s assessment of that criteria is supported by substantial evidence, the

ALJ did not err in failing to explicitly consider Listing 12.08 at step three”).

Accordingly, remand is not warranted based on the ALJ’s step three analysis.

VII. RFC EVALUATION/TREATING PHYSICIAN

A. Legal Standards

1. RFC

RFC is “what [the] individual can still do despite his or her limitations.

Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work

activities in an ordinary work setting on a regular and continuing basis. . . .” A “regular

and continuing basis” means eight hours a day, for five days a week, or an equivalent

work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2

(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)

(quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v. Berryhill, No. 5:17-CV-

00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018); Tankisi v.

Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.

Supp. 3d 349, 361 (N.D.N.Y. 2016).

In rendering an RFC determination, the ALJ must consider objective medical

facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s

§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)

(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.

Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL 587459, at *8 (N.D.N.Y. Feb 13, 2019);

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An ALJ must specify the functions

plaintiff is capable of performing, and may not simply make conclusory statements

regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241, 267 (N.D.N.Y.

2010); Martone v. Apfel, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler, 728 F.2d

582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183, Stephens v. Colvin, 200

F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v. Comm’r of Soc. Sec., 307 F. Supp.

2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must also include a narrative

discussion, describing how the evidence supports the ALJ’s conclusions, citing specific

medical facts, and non-medical evidence. Natashia R. v. Berryhill, No. 3:17-CV-01266

(TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing SSR 96-8p, 1996

WL 374184, at *7).

2. Weight of the Evidence/Treating Physician

In making a determination, the ALJ weighs all the evidence of record and

carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL

374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues

are not “medical issues,” but are “administrative findings.” The responsibility for

determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL

374183, at *2. These issues include whether the plaintiff’s impairments meet or equal a

listed impairment; the plaintiff’s RFC; how the vocational factors apply; and whether

In evaluating medical opinions on issues that are reserved to the Commissioner,

the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The

ALJ must clearly state the legal rules that he applies and the weight that he accords the

evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL 3776382, at *2

(S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324, 2012 WL

3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).

“Although the treating physician rule generally requires deference to the medical

opinion of a claimant’s treating physician, . . . the opinion of the treating physician is

not afforded controlling weight where . . . the treating physician issued opinions that are

not consistent with other substantial evidence in the record . . . .” Halloran v. Barnhart,

362 F.3d 28, 32 (2d Cir. 2004); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); 20

C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If an ALJ decides not to give the treating

source’s records controlling weight, then he must explicitly consider the four Burgess

factors: “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of

medical evidence supporting the opinion; (3) the consistency of the opinion with the

remaining medical evidence; and (4) whether the physician is a specialist.” Estrella v.

Berryhill, 925 F.3d 90, 95-96 (2d Cir. 2019) (quoting Burgess v. Astrue, 537 F. 3d 117,

120 (2d Cir. 2008)). Should an ALJ assign less than controlling weight to a treating

physician’s opinion and fail to consider the above-mentioned factors, this is a

procedural error. Id. at 96. It is impossible to conclude that the error is harmless unless

a “searching review of the record . . . assures us that the substance of the treating

physician rule was not traversed.” Id.

Plaintiff argues that the ALJ misapplied the treating physician rule by failing to

give controlling weight to the medical opinions co-signed by Dr. Lopez-Williams. The

plaintiff further argues that the ALJ improperly weighed the other medical opinions of

record, including LMHC Flemming’s restrictive findings. The Commissioner contends

that Dr. Lopez-Williams’s opinion was not entitled to controlling weight, and the ALJ

properly evaluated the opinion evidence and reached a determination supported by

substantial evidence. This court agrees.

As previously discussed, LMHC Flemming and Dr. Lopez-Williams prepared and

cosigned several medical opinions on behalf of plaintiff. Included in these reports was

their RFC opinion, noted in a check-box form, that plaintiff was unable to meet

competitive standards in his ability to carry out very short and simple instructions, and

that plaintiff otherwise had no useful ability to function in the fifteen remaining mental

abilities and aptitudes for unskilled work. (T. 444). Although prompted to do so,

neither LMHC Flemming nor Dr. Lopez-Williams provided any explanation or medical

evidence supporting their opinion that plaintiff’s limitations fell into the most restrictive

categories. (Id.). LMHC Flemming and Dr. Lopez-Williams further opined that

plaintiff was unable to meet competitive standards in his ability to interact appropriately

with the general public and adhere to basic standards of neatness and cleanliness; and

that plaintiff had no useful ability to function in his ability to maintain socially

appropriate behavior, travel in unfamiliar places, and use public transportation. (T.

445). These restrictive limitations also lacked any explanation or supporting evidence.

(Id.).

entitled to controlling weight. The Second Circuit has explained that the ALJ gives a

treating physician controlling weight because of the “continuity of treatment he provides

and the doctor/patient relationship he develops[.]” Weathers v. Colvin, No. 3:15-CV-

575(FJS), 2017 WL 177649, at *5 (N.D.N.Y. Jan. 17, 2017) (citing Mongeur v. Heckler,

722 F.2d 1033,1039 n.2 (2d Cir. 1983)). However, a physician who only examines a

plaintiff “once or twice” does not develop the requisite physician/patient relationship to

support the conclusion that he is a treating physician. See id. Similarly, in Petrie v.

Astrue, the Second Circuit found that failing to give controlling weight to a physician

who had “limited and remote” contact with the patient was not error. 412 Fed. App’x

401, 405 (2d Cir. 2011).

In this case, the administrative record reflects that Dr. Lopez-Williams conducted

an initial intake evaluation of plaintiff on June 9, 2015. (T. 436-440). After this initial

examination, plaintiff commenced weekly therapy visits with LMHC Flemming, who

worked out of the same office as Dr. Lopez-Williams. (T. 255-440). Dr. Lopez-

Williams did not meet with plaintiff again until December 23, 2015. (T. 361-62).

Approximately one month later on January 28, 2016, Dr. Lopez-Williams prepared a

Confidential Psychological Report on behalf of plaintiff. (T. 248-51). The report

appears to summarize a battery of psychological tests that had been administered to

plaintiff in the preceding months, however it is unclear if Dr. Lopez-Williams

administered the tests himself or merely evaluated the results, after the fact. (Id.).

Regardless, there is no other indication of Dr. Lopez-William’s involvement in

plaintiff’s treatment through the date of the ALJ’s May 2017 decision. Thus, the ALJ

his “limited and remote contact” with plaintiff. Petrie v. Astrue, 412 F. App’x at 405.

To clarify, this court does not dispute the legal presumption that, because Dr.

Lopez-Williams co-signed the January 6, 2017 questionnaires, the statements therein

constitute his opinion as well as LMHC Flemming’s opinion. See Waters v. Astrue, No.

5:10-CV-110, 2011 WL 1884002, at *8 n.5 (D. VT. May 17, 2011) (“Cases have held

that when a doctor and a physician’s assistant sign the same reports, ‘the opinions [are]

those of [the treating physician] as well as those of [the physician’s assistant.].’ ”

(alterations in original) (quoting Riechl v. Barnhart, No. 02-CV-6169, 2003 WL

21730126, at *11 (W.D.N.Y. June 3, 2003)). However, as previously discussed Dr.

Lopez-Williams signature on these evaluations did not mandate an analysis under the

treating physician rule, in light of his minimal treating relationship with plaintiff.

Moreover, the opinion evidence signed by Dr. Lopez-Williams was prepared almost a

year after he had last personally seen plaintiff. See Petrie v. Astrue, 412 Fed. App’x at

405. Accordingly, Dr. Lopez-Williams’s opinions were not entitled to controlling

weight.

Nevertheless, it was still incumbent upon the ALJ to evaluate the medical

opinions cosigned by Dr. Lopez-Williams and LMHC Flemming (20 C.F.R. §

416.927(C) (“Regardless of its source, we will evaluate every medical opinion we

receive.”)), and the ALJ’s decision reflects that she sufficiently discharged this

responsibility. In affording Dr. Lopez-Williams and LMHC Flemming’s medical

opinions less than significant weight, the ALJ noted that they consisted “largely of

checked-off responses without detailed medical explanation.” (T. 23). See Heaman v.

according medical opinion less weight, “including that their opinions were merely

checkbox forms that offer little or nothing with regard to clinical findings and diagnostic

results . . .”)(internal quotations omitted); Klodzinski v. Astrue, 274 Fed. App’x 72, 73

(2d Cir. 2008) (holding that a standardized multiple-choice form completed by a treating

physician was only marginally helpful); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.

2004) (stating that the standardized form was only marginally useful).

The ALJ further noted that plaintiff’s mental health treatment records were

inconsistent with the degree of limitation specified in Dr. Lopez-Williams and LMHC

Flemming’s medical opinions. (T. 23). Although the ALJ could have better identified

the support for her contention with specific examples, her premise is nonetheless

supported by substantial evidence in the record. See Harrison v. Comm’r of Soc. Sec.,

No. 17-CV-98, 2018 WL 3153399, at *3 (W.D.N.Y. June 28, 2018) (When “the

evidence of record permits us to glean the rationale of an ALJ’s decision, we do not

require that [s]he have mentioned every item of testimony presented to [her] or have

explained why [s]he considered particular evidence unpersuasive or insufficient to lead

[her] to a conclusion of disability.”)(citing Mongeur v. Heckler, 722 F.2d at 1040).

Particularly inconsistent with the restrictive limitations set forth in Dr. Lopez-

Williams and LMHC Flemming’s medical opinions are Dr. Lopez-Williams’s own

findings upon mental examination of plaintiff, along with his summary of plaintiff’s

psychologic testing results. On June 9, 2015, Dr. Lopez-Williams conducted a mental

status examination of plaintiff, finding him to be cooperative with poor eye contact. (T.

438). He further noted that plaintiff’s speech was a normal rate, and while his mood

abnormal thought content. (Id.). On December 23, 2015, Dr. Lopez-Williams met with

plaintiff to discuss his psychological evaluation results, which indicated “mild to

moderate” impairments in attention, visual memory, cognitive flexibility and verbal

reasoning. (T. 361). Plaintiff’s auditory memory and executive skills were otherwise

noted to be well-developed/intact. (Id.). Dr. Lopez-Williams indicated that plaintiff

was “likely to have an impairment in any . . . occupational environment[,] owing to

confluence of cognitive impairments and [symptoms] of [diagnoses].” (Id.). The ALJ

does not, however, dispute that plaintiff will have some degree of occupational

impairment due to his diagnoses, and tailored an RFC the accommodate the same. In

any event, Dr. Lopez-Williams’s examination findings and summary of testing results

do not support the extreme limitations set forth in his RFC analysis. (T. 444-45).

Dr. Lopez-Williams and LMHC Flemming’s medical opinions are further

contradicted by other evidence in the record, including plaintiff’s therapy notes with

LMHC Flemming. For example, despite consistently noting that plaintiff was

appropriately dressed with adequate grooming and hygiene for each therapy session,

LMHC Flemming opined that plaintiff was unable to meet competitive standards with

respect to adhering to basic standards of neatness and cleanliness. (T. 257, 265, 277,

287, 291, 297, 302, 305, 309, 312, 318, 325, 328, 331, 333, 445). LMHC Flemming’s

medical opinion also assigned plaintiff a Global Assessment of Functioning (“GAF”)

score of 40, without explaining how this opinion conformed with her treatment records

for plaintiff, which consistently assessed him with a GAF score of 50. (T. 23). With

respect to LMHC Flemming’s mental examinations reflected during her therapy

and conclusions of Dr. Lopez-Williams and consultative examiner Jeanne A. Shapiro,

M.D. (T. 236-240, 436-40).11 See Simmons v. Comm’r of Soc. Sec.,103 F. Supp. 3d 547,

565 (S.D.N.Y. 2015) (“When reviewing the medical evidence, the ALJ has the authority

to select among conflicting opinions. Thus, if there are genuine conflicts within the

evidence, their resolution is a matter committed to the Commissioner's discretion.”)

(internal quotations and citations omitted).

Medical opinion evidence was also submitted in the form of a September 2, 2015

psychiatric examination report prepared by psychologist Jeanne A. Shapiro, Ph.D. (T.

236-40). Upon examination, Dr. Shapiro noted that plaintiff was cooperative and his

manner of relating, social skills, and overall presentation was adequate. (T. 238).

Plaintiff was appropriately dressed and his personal hygiene and grooming was good.

(Id.). Motor behavior was normal, and eye contact was appropriate. (Id.). His speech

was clear and adequate, with coherent and goal directed thought processes. (Id.).

Plaintiff’s mood was noted to be calm, and he was relaxed and comfortable. (Id.).

Attention and concentration were intact, along with recent and remote memory skills.

(Id.). Insight and judgement were “good.” (Id.). Based on her overall examination, Dr.

Shapiro opined that plaintiff had no limitations in understanding and following simple

11The court further notes that LMHC Flemming’s check-box findings upon mental

examination were, at times, internally inconsistent with the progress note as a whole. For

example, one treatment record indicates “there was communication by the patient . . . of suicide

ideation or urges to self injure . . .”, however LMHC Flemming checked “No SI [suicidal

ideation])” in the check-box form upon examination. (T. 269-70). Furthermore, the December

1, 2015 treatment record indicates that plaintiff’s father attended the session, and plaintiff

himself was not present; however LMHC Flemming somehow reported mental examination

findings from that session. (T. 372-73).

and concentration for tasks; attending to a routine and maintaining a schedule; learning

new tasks; and making appropriate decisions. (T. 239). She further opined that plaintiff

had mild limitations in his ability to consistently relate to and interact well with others;

as well as in his ability to deal with stress. (Id.).

The ALJ afforded “great weight” to some portions of Dr. Shapiro’s opinion

because they were supported by other evidence of record, including Dr. Lopez-Williams

findings upon mental examination and report of psychological testing. However, the

ALJ gave less than significant weight to other portions of Dr. Shapiro’s opinion,

including that plaintiff was only mildly limited in his ability to consistently relate to

others. The ALJ disagreed, finding that plaintiff’s mental health treatment records

indicated his limitation in this area was greater than mild. (T. 20). The ALJ

incorporated this determination into her ultimate RFC in restricting plaintiff from work

that required interaction with the general public or exposure to crowds, or more than

superficial interaction with co-workers. (T. 18). This was an appropriate exercise of

the ALJ’s discretion. See Artinian v. Berryhill, No. 16-CV-4404, 2018 WL 401186, at

*8 (E.D.N.Y. Jan. 12, 2018) (“It is entirely proper for the ALJ to only credit portions of

medical source opinions, or weigh different parts of the same opinion differently.”)

(citations omitted); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).

The ALJ’s partial reliance on consulting examiner Dr. Shapiro’s opinion was not

error. See Colbert v. Comm’r of Soc. Sec., 313 F. Supp. 3d 562, 576-77 (S.D.N.Y.

2018) (“[I]t is well-settled that a consulting psychiatric examiner’s opinion may be

given great weight and may constitute substantial evidence to support a decision.”)

2016 WL 7971330, at *8 (N.D.N.Y. Dec. 29, 2016) (“[T]he Second Circuit has made it

clear that the opinions of State agency medical consultants ... may constitute substantial

evidence to support an ALJ's RFC determination.”). The ALJ had “both the ability and

the responsibility to resolve conflicts in the evidence and to weigh all of the available

evidence ‘to make an RFC finding that is consistent with the record as a whole.’”

Carbee v. Comm’r of Soc. Sec., No. 1:17-CV-0051 (GTS), 2018 WL 333516, at *14

(N.D.N.Y. Jan. 9, 2018) (quoting Matta v. Astrue, 508 Fed. App’x 53, 56 (2d Cir. 2013)

(noting also that the ALJ’s conclusions do not need to “perfectly correspond” with any

of the opinions from medical sources in order to be supported by substantial evidence)

(citation omitted)); see also Dirisio v. Comm’r of Soc. Sec., No. 15-CV-1181(GTS),

2016 WL 7378930, at *4 (N.D.N.Y. Dec. 20, 2016) (“In formulating the RFC, an ALJ is

not required to adhere to the entirety of one medical source’s opinion.”) (citing Matta,

508 Fed. App’x at 56). For the above reasons, the ALJ’s consideration of the medical

opinion evidence was supported by substantial evidence, and the evidence as a whole

provides substantial support for the RFC finding. Remand is not warranted on this

basis.

VIII. STEP FIVE DETERMINATION

A. Legal Standards

At step five of the disability analysis, the burden shifts to the ALJ to demonstrate

that there is other work in the national economy that plaintiff can perform. Poupore v.

Astrue, 566 F.3d 303, 306 (2d Cir. 2009). If the ALJ utilizes a VE at the hearing, the

VE is generally questioned using a hypothetical question that incorporates plaintiff’s

ALJ is initially responsible for determining the claimant’s capabilities based on all the

evidence (see Dumas v. Schweiker, 712 F.2d 1545, 1554 n.4 (2d Cir. 1983)), a

hypothetical question that does not present the full extent of a claimant’s impairments

cannot provide a sound basis for vocational expert testimony. See De Leon v. Sec’y of

Health and Human Servs., 734 F.2d 930, 936 (2d Cir. 1984); Lugo v. Chater, 932 F.

Supp. 497, 503-04 (S.D.N.Y. 1996). Conversely, the ALJ may rely on a VE’s testimony

regarding the availability of work as long as the hypothetical facts the expert is asked to

consider are based on substantial evidence and accurately reflect the plaintiff’s

limitations. Calabrese v. Astrue, 358 F. App’x 274, 276 (2d Cir. 2009). Where the

hypothetical is based on an RFC analysis supported by substantial facts, the hypothetical

is proper. Id. at 276-277.

B. Application

Plaintiff argues that the step five determination is not supported by substantial

evidence because the hypothetical proposed to the VE did not incorporate the limitations

set forth by Dr. Lopez-Williams. (Pl.’s Br. at 25). This argument is based on plaintiff’s

argument that the ALJ’s RFC evaluation did not contain sufficient limitations as argued

above. Because this court has found that the ALJ’s RFC evaluation was supported by

substantial evidence, then the hypothetical question posed to the VE is equally

supported, and the ALJ’s disability determination was sound.

WHEREFORE, based on the above, it is

ORDERED, that the Commissioner's decision is AFFIRMED and the complaint

is DISMISSED, and it is

ORDERED, that judgment be entered for DEFENDANT.

Dated: September 18, 2019 Ynelort Baler

Andrew T. Baxter

U.S. Magistrate Judge

35