# Cavaggioni v. Saul

> District Court, N.D. New York · September 18, 2019

URL: https://www.frixlaw.com/law-library/cases/10312115

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 18, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10312115

## How later opinions describe it (automated extraction)

- 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”
- Finding we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony
- stating that the standardized form was only marginally useful

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10312115. Public record. Not legal advice.