Wilson v. Commissioner of Social Security

NORTHERN DISTRICT OF NEW YORK

BRADLEY W.,

Plaintiff,

v. 5:19-CV-1217

(ATB)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

HOWARD D. OLINSKY, ESQ. for Plaintiff

TIMOTHY S. BOLEN, 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, 7).

I. PROCEDURAL HISTORY

Plaintiff filed an application for Supplemental Security Income (“SSI”) on April

6, 2012, alleging disability beginning July 27, 2016. (Administrative Transcript (“T.”)

70, 147-52). The application was initially denied on September 14, 2016. (T. 70, 77-

80). Plaintiff made a timely request for a hearing, which was held on July 19, 2018

before Administrative Law Judge (“ALJ”) Jennifer Gale Smith. (T. 28-69). On

September 7, 2018, ALJ Smith issued an unfavorable decision. (T. 15-23). The Appeals

Council denied plaintiff’s request for review of the ALJ’s decision. (T. 1-6).

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]

next considers whether the claimant has a “severe impairment” which

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

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

evidence, a reviewing court considers the whole record, examining the evidence from

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.

An ALJ is not required to explicitly analyze every 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

Plaintiff testified that he was 41 years old at the time of the ALJ’s hearing, and

that he failed to finish the ninth grade in school,1 when he was “kicked out” for being an

“angry child.” (T. 33-34). However, plaintiff told the ALJ that he was not an “angry

adult” because his mother “was able to help get that out of [him].” (T. 34). Plaintiff

testified how his mother’s subsequent, sudden death was very difficult for him. (T. 34-

35). Plaintiff testified that he had not worked since he was approximately 25 years old,

and that he was hired at “Best Buy” only because his father was a manager there at the

time and helped him get the job. (T. 35-36). Plaintiff testified that, when he attempted

to get vocational training,2 he was turned away because he was not “physically”

handicapped enough. (T. 36). Plaintiff testified that he never received any training,

even though he was on SSI when he was a child “until Social Security just dropped

1 Later, plaintiff testified that he was always in Special Education classes. (T. 45-46).

2 Plaintiff could not remember the name of the organization to which he applied for training,

but testified that he was not able to find anywhere else to apply after he was turned down. (T. 36-37).

Plaintiff testified that he was unable to work because he could not be around

people. (T. 37). He stated that when he tried to work at Best Buy, he had an “emotional

breakdown” after his grandmother passed away, and he got “too stressed” because he

was left with “everyone’s work.” (Id.) He testified that he “broke down emotionally,”

began to cry, and walked out of the store. (Id.) However, he stated that he did not know

“the whole situation” at Best Buy.4 (Id.)

Plaintiff testified that he lived “upstairs” from his younger brother, and that

another brother owned the home. (T. 37-38). Plaintiff’s nephews lived “downstairs.”

(T. 38). Plaintiff testified that he got along with his younger brother, but that he and his

older brother did not “talk too much.” (Id.) Plaintiff testified that his eighteen-year-old

nephew and his nephew’s seven-week-old puppy were currently living with plaintiff. (T.

38-39). Plaintiff’s nephew helped him. (T. 39). Before his nephew was there to help

him, plaintiff’s father or his brother Erin took plaintiff to buy groceries at Walmart. (T.

39). Plaintiff testified that he would run into the store, “grab” what he needed and

would leave immediately. (Id.)

Plaintiff testified that he only ate once per day, and that he cooked TV dinners in

the microwave oven. (T. 39-40). His nephew occasionally helped plaintiff warm the TV

dinners up in the oven. Plaintiff testified that his brothers helped him with

3 It appears that plaintiff may have received “child’s benefits” through Social Security until he

was 22 years old.

4 Later, plaintiff testified that, one of the reasons plaintiff left Best Buy after his father stopped

working there was that he did not know or trust anyone, and there were “a lot of problems with that

job.” (T. 49).

(T. 40). Plaintiff stated that, although he got help with his laundry, he did all of his own

dishes and other housework. (T. 41). Plaintiff then stated that he could “probably much

do [sic] almost what people can do except for it takes me longer.” (T. 41). Later

plaintiff testified to a variety of household chores that he did. (T. 43). He testified that

his mother taught him how to clean, and that he was “not helpless in that way.” (Id.)

Plaintiff stated that he could not work around other people because he did not trust

them, and they were always putting him down. (T. 41). Plaintiff stated that when he

was “younger,” he “used to go after people,” but “now,” he just stayed away from them.

He found it easier to stay home and not “go around” people. (Id.)

For “fun,” plaintiff watched television or did jigsaw puzzles that his mother gave

him before she passed away. (T. 41, 43). He watched movies, but did not like to watch

ones that he had seen before because that was “boring.” (T. 43). Plaintiff later testified

that he did not have a television, and that he watched movies on his computer. (T. 56).

He explained how he was able to get movies on his computer by going to “IceFilms.”5

(Id.) Although plaintiff admitted that he could read, “for the most part,” he did not have

any books, nor did he look at the newspaper. (T. 41-42). Plaintiff testified that he used a

paper and pencil to do “math,” but that he might be able to use a calculator if he “needed

to.” (T. 42).

Plaintiff did not socialize with his family because they were always busy, but

sometimes, his nephews and nieces came to visit him. (T. 43-44). Plaintiff also testified

5 Later, plaintiff testified that his father and his friend Mike taught him how to go onto the

computer to access movies. (T. 58-59).

stated that he walked to see his father. (T. 44). Plaintiff testified that he did not have a

driver’s license, and that his sister drove him to the hearing. (T. 46). He stated that, if

his sister had not driven him to the hearing, he would have gotten lost or shown up late

“for several different reasons.” (T. 46). Plaintiff stated that he did not like being around

other people, and that he had gotten into “fights” on his way to “appointments.” (Id.)

Plaintiff stated that his father found him “bloody on a street an hour later when he [came

looking for him.]” (Id.) Plaintiff admitted that the fights were “a long time ago,” but

then stated that if he got into a fight “now,” he would probably kill somebody, so it was

“good” that he stayed at home. (T. 47).

Plaintiff testified that he had been “in prison” when he was “a teenager,” and

when the ALJ pointed out that it was “a long time ago,” plaintiff stated that “everything

was a long time ago for him because he stayed home. (Id.) Plaintiff testified that, when

his mother was alive, she did everything for him. She taught him how to clean, helped

him study, calmed him down, and was “everything” to him. (T. 48). Plaintiff testified

that he sat in his house, and did not do anything. (Id.) Plaintiff stated that he was

“waiting for the day,” that he could “meet” his mother again, and that he did not want to

get into trouble because there would not be “anyone” there for him. (Id.) His brothers

had “their own problems,” and he was concerned that his father would die because he

would not quit smoking. (Id.) Plaintiff testified that he had “thoughts” of hurting

himself every day. (T. 49). However, plaintiff stated that “every day” he woke up and

found reasons not to hurt himself. (T. 50). He stated that his little nephews would not

Plaintiff testified that he was going to counseling at the “Brownell Center” every

Thursday, and that he would never miss an appointment unless his counselor Kelly let

him know she was not going to be there. (Id.) He took a “medical cab” to get to his

counseling appointments. (Id.) Plaintiff testified that he was in a depressed mood “half

the time.” (T. 52). He had energy some days, but some days he stayed in bed until 3:00

p.m. or until his nephew came to get him. (T. 53). Plaintiff stated that he had trouble

focusing, and he only slept about five hours per night, often waking up frequently.

When he woke up, he took medication so that he could sleep until nine or ten in the

morning. (Id.)

Plaintiff testified that he did not “go around” others because he was afraid of what

he might do and what “they” might do. (T. 54). It was “better” for him to just sit at

home. (Id.) Plaintiff testified that he could probably work “a few hours a day without

having any complications,” but he would just “rather” be by himself. (T. 55). Plaintiff

stated that “it’s just finding the work,” because he had no past work experience, and

employers would not hire him. (Id.) Plaintiff testified that he applied to work as a

cashier at “Little Caesar’s,” but that the company turned him down and hired a fifteen-

year-old girl for the position the next day. (T. 55-56).

Plaintiff testified that, sometimes, his brother asked plaintiff to come downstairs

and help him clean the house. (T. 56). He went shopping with his family twice per

6 Later plaintiff testified that he would think of his nephews in an effort to dismiss the thoughts

of hurting himself. (T. 53). Plaintiff stated that he was told that if those thoughts did not help, he

should “just get out,” find a family member, and stay with him or her. (T. 53-54).

Public Assistance benefits, although someone had to explain how to fill out the

paperwork every time he went there. (T. 57-58).

The ALJ heard testimony from Vocational Expert (“VE”) Marissa Howe. (T. 60-

67). The ALJ asked VE Howe a hypothetical question in which he asked her to assume

an individual who could perform work at all exertional levels, but was restricted to

performing simple, routine, repetitive tasks. (T. 60). The hypothetical individual was

limited to working in a “low-stress job,” which was defined as a job requiring only

occasional decision-making and the occasional use of judgment, with only occasional

changes in the work setting. (Id.) The individual would be limited to goal-oriented,

rather than “production paced rate” work. The individual should only have “occasional,

superficial” contact with supervisors, co-workers, and the public. (Id.)

The VE named unskilled jobs at various exertional levels, including medium

(cardboard box maker, floral greens tier, and janitor); light (ticketer/tagger, garment

sorter, label coder, and laundry folder); and sedentary (ceramic tile examiner, lens

inserter, stuffer, and dowel inspector). (T. 61-65). VE Howe testified that an individual

could be “off-task” up to 20% of the workday in addition to regularly scheduled breaks,

but any more than 20% would not be tolerated for continued employment. (T. 65). An

employer would also tolerate up to two absences per month. (T. 65-66). In response to a

question by plaintiff’s counsel, the VE testified that an individual would not be able to

perform any of the jobs if he could only “rarely” perform low stress, simple or complex

tasks independently; maintain a schedule or attend to a daily routine; interact with others

and maintain socially appropriate behavior without exhibiting behavioral extremes;

(T. 66-67). The above limitations would preclude all employment in the national

economy. (Id.)

IV. THE ALJ’S DECISION

After finding that plaintiff had not engaged in substantial gainful activity

(“SGA”) since his SSI application date of July 27, 2016, the ALJ determined that

plaintiff’s disruptive mood regulation, mood disorder, anxiety disorder, post-traumatic

stress disorder (“PTSD”), and bereavement were severe impairments for purposes of

step two of the sequential evaluation. (T. 17-18). The ALJ found that “no other medical

disorder mentioned in the record has been established as a ‘severe’ impairment,”

meeting the 12-month duration requirement. (T. 18). These impairments included his

gastroesophageal reflux disease, lower back pain, and “dental issues.”7 (Id.)

At step three of the sequential evaluation, the ALJ found that plaintiff did not

have an impairment or combination of impairments that met or medically equaled the

severity of a listed impairment. (T. 18). In making this determination, the ALJ

considered Listings 12.04 (depressive, bipolar, and related disorders); 12.06 (anxiety

and obsessive-compulsive disorders); and 12.15 (trauma and stressor-related disorders).

The ALJ followed the “special technique,” established by the agency for determining

whether plaintiff suffered from a listed impairment. The special technique includes

determining the functional limitations imposed by plaintiff’s impairments in each of

7 Plaintiff had all of his teeth removed due to an infection. (T. 54). At the time of the hearing,

plaintiff had no teeth. (Id.) The ALJ found that plaintiff did not experience any “work-related”

functional limitations as a result of the removal of his teeth, “particularly after he was fitted for

dentures.” (Id.)

interacting with others; concentrating, persisting, or maintaining pace; and adapting and

managing oneself. (T. 18). In order to meet the severity of a listed impairment, plaintiff

must have at least two “marked” limitations or one “extreme” limitation in the broad

areas of functioning. (Id.) Based on the record, the ALJ found that plaintiff had

“moderate” limitations in all of the broad areas cited above. Therefore, the ALJ found

that plaintiff did not satisfy the “B” criteria of the listings. The ALJ also considered the

“C” criteria and found that plaintiff failed to establish that he had only “marginal

adjustment,” defined as a minimal capacity to adapt to changes in his environment or to

demands that are not already a part of his daily life. (T. 19).

The ALJ noted that the limitations identified in “‘paragraph B’” did not constitute

an RFC assessment, but were used to rate the severity of a mental impairment at steps

two and three of the sequential evaluation. (T. 19). The RFC assessment at steps four

and five required more detailed findings.

At step four, the ALJ found that plaintiff had the RFC to perform simple, routine,

and repetitive tasks at all exertional levels. (T. 19). Plaintiff would be limited to low

stress jobs as defined above, and should do “goal-oriented” work, rather that production

pace rate work. (Id.) Plaintiff should have only occasional, superficial contact with co-

workers, supervisors, and the public. (Id.) In making this determination, the ALJ

weighed the medical and other evidence of record, finding that the medical source

statement (“MSS”) by consultative psychologist, Jeanne Shapiro, Ph.D. should be given

“partial evidentiary weight,” disagreeing only with Dr. Shapiro’s estimate that plaintiff

would have moderate limitations in his ability to maintain a schedule. (T. 20). The ALJ

consultant, but determined that Dr. Harding’s opinion was an “underestimate” of the

plaintiff’s limitations, given the counseling records obtained at the hearing level.8

The ALJ gave “little weight” to the “employability assessment” forms completed

by the plaintiff’s social worker, Kelly Kelodziejski, LCSW for the Department of Social

Services (“DSS”). (T. 20). The ALJ found that the standards for DSS were different

than the standards for Social Security, and the MSS restrictions were contradicted by the

objective findings in the record, including her own findings on examination. (Id.) The

ALJ then reviewed some of the inconsistencies that he found. (T. 20-21). The ALJ also

considered plaintiff’s daily activities in determining the RFC. (T. 21).

The ALJ found that plaintiff had no previous work experience, but based on the

RFC and the testimony of the VE, determined that plaintiff could perform work in the

national economy.9 (T. 22). The ALJ cited the jobs of cardboard box maker, floral

8 Dr. Harding’s MSS stated that plaintiff had mild limitations in the first three broad areas of

functioning and no episodes of decompensation. (T. 74). The court notes that Dr. Harding was

utilizing an older version of the psychiatric technique. The broad areas of functioning were restriction

in daily activities; difficulties in maintaining social functioning; difficulties in maintaining

concentration, persistence, and pace; and repeated episodes of decompensation, each of extended

duration. (T. 74). The newer amended broad areas of functioning do not include “episodes of

decompensation,” rather as stated above, the broad areas of functioning are now: understanding,

remembering, or applying information; interacting with others; concentrating, persisting, or

maintaining pace; and adapting and managing oneself.

9 The ALJ discussed the sequential analysis and use of the Medical Vocational Guidelines (“the

Grids”). (T. 22). The Grids direct a finding of disabled or not disabled based on age, education, and

previous work experience at different exertional levels. However, when a plaintiff’s ability to perform

work at all exertional levels is compromised by additional non-exertional limitations, the ALJ must

determine the extent to which the additional limitations erode the occupational base of work at any

particular exertional level. (Id.) The Grids are then used as a “framework” for decision making. (Id.)

Plaintiff’s additional limitations have compromised his ability to perform at all exertional levels, thus,

the ALJ consulted the vocational expert for her opinion regarding the extent to which the occupational

base was eroded. The ALJ selected the jobs based on the VE’s testimony. (Id.)

ALJ determined that plaintiff was not disabled from the date of his SSI application to

the date of her decision. (T. 23).

V. ISSUES IN CONTENTION

Plaintiff raises the following arguments in support of his position that the ALJ’s

decision is not supported by substantial evidence:

1. The ALJ’s RFC determination was not supported by substantial evidence

because she failed to properly explain the weight she gave to “professional

sources.” (Pl.’s Br. at 6-12) (Dkt. No. 9).

2. The ALJ erred in her discussion of the Psychiatric Review Technique at

step three. (Pl.’s Br. at 13-15).

Defendant argues that the Commissioner’s decision is supported by substantial

evidence. (Def.’s Br. at 6-16) (Dkt. No. 10). For the following reasons, this court agrees

with the defendant and will affirm the Commissioner’s decision.

VI. Listed Impairment

A. Legal Standards

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. Gabriel C. v. Comm’r of Soc.

Sec., No. 6:18-CV-671 (ATB), 2019 WL 4466983, at *4 (N.D.N.Y. Sept. 18, 2019)

(citing inter alia Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). “Nonetheless, the ALJ is

required to explain why a claimant failed to meet or equal the listings [w]here the

claimant’s symptoms as described by the medical evidence appear to match those

1076088, at *3 (W.D.N.Y. Mar. 7, 2019) (quoting Rockwood v. Astrue, 614 F. Supp. 2d

252, 273 (N.D.N.Y. 2009) (citation and internal quotations omitted)). If a plaintiff’s

impairment “manifests only some of those criteria, no matter how severely,” such

impairment does not qualify. Debra E. v. Comm’r of Soc. Sec., No. 6:18-CV-513

(NAM), 2019 WL 4233162, at *6 (N.D.N.Y. Sept. 6, 2019) (quoting Sullivan v. Zebley,

493 U.S. at 530). 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 argues that the ALJ’s “discussion” of the Psychiatric Review Technique

at step three was not supported by substantial evidence. Plaintiff appears to make two

arguments. First, plaintiff argues that the ALJ’s assessed limitations for the “paragraph

B” criteria are not supported by substantial evidence, and second, that the ALJ did not

properly evaluate whether the plaintiff’s impairments “medically equaled” the severity

of a listed impairment. Although plaintiff makes these arguments last, it is more

appropriate to discuss step three prior to his argument regarding step four of the

sequential analysis. Thus, the court will address plaintiff’s listing arguments first.

When the state agency examiner, T. Harding, Ph.D., conducted the plaintiff’s

review at step three, he or she found that plaintiff’s mental impairments were not severe.

(T. 74). As stated above, Dr. Harding used the former broad areas of functioning in

making this determination. (Id.) The ALJ considered plaintiff’s mental impairments in

conjunction with the new standard. (T. 18). In addition on March 27, 2017, the Social

adjudications. Social Security Ruling (“SSR”) 17-2p. SSR 17-2p, 2017 WL 3928306

(March 27, 2017). SSR 17-2p rescinded and replaced SSR 96-6p. 2017 WL 3928306, at

*1. Among other things, this ruling discussed how ALJ’s determine equivalence to a

listed impairment.

In making the step three determination, the ALJ considered Dr. Shapiro’s MSS,

and found that the plaintiff did not have two marked or one extreme limitation in the

four broad areas of functioning. (T. 18-19). Plaintiff takes issue with the ALJ’s finding

that plaintiff had a “moderate” limitation in interacting with others and in maintaining

attention and concentration, when Dr. Shapiro found only that plaintiff was “cooperative

with adequate social skills,” and his attention, concentration, and recent and remote

memory skills were all intact. (Pl.’s Br. at 13). Plaintiff argues that the ALJ did not

further discuss plaintiff’s inability to interact with others at step three, and the ALJ has

not adequately explained why a “moderate limitation is sufficient [in maintaining

attention and concentration] as opposed to marked,” particularly when the record

contained reports, written by plaintiff’s treating social worker, LCSW Kolodziejski,

stating that plaintiff’s limitations in maintaining attention and concentration were

“severe.” (Id.)

It appears that plaintiff is arguing that, if the ALJ found that plaintiff was more

limited than Dr. Shapiro indicated, the ALJ did not “adequately” explain why she found

that the additional limitations were “moderate,” rather than “severe,” because LCSW

Kolodziejski found severe limitations. The plaintiff argues that the ALJ took “raw” data

from Dr. Shapiro and improperly determined what additional limitations were

the sequential evaluation, but explained why she did not give more weight to those

reports. The ALJ noted, inter alia, that DSS employability reports are based on different

standards than Social Security. (T. 20). Plaintiff must meet the Listing standards

specifically.

The ALJ assessed greater limitations for purposes of the listing evaluation than

Dr. Shapiro discussed in her consultative report. While the ALJ may not use “raw

evidence” in making her determination, when there is other evidence supporting the

ALJ’s assessment in the record, and the ALJ’s determination is more favorable to the

plaintiff, any error would be harmless. Shorter v. Comm’r of Soc. Sec., No. 5:12-CV-

1502 (NAM/ATB), 2014 WL 1280459, at *10 (N.D.N.Y. Mar. 27, 2014). See Threatt v.

Comm’r of Soc. Sec., No. 19-CV-25 (JJM), 2020 WL 4390695, at *5 (W.D.N.Y. July

31, 2020) (where the ALJ’s RFC assessment is more restrictive than the medical

opinions of record, it is generally not a basis for remand); Cote v. Berryhill, No. 3:17-

CV-1843 (SALM), 2018 WL 4092068, at *24 (D. Conn. Aug. 28, 2018) (same). The

cases cited all deal with an ALJ’s determination of RFC, but this proposition is equally

applicable to the ALJ’s step three determination. In addition, as discussed below, the

ALJ’s RFC determination, based on Dr. Shapiro’s evaluation, together with the other

evidence of record is also supported by substantial evidence.

Plaintiff cites Vincent v. Berryhill, No. 16-CV-527 (A), 2018 WL 4705594, at *2

(W.D.N.Y. Oct. 2, 2018), which held that even though the ALJ may deviate from a

medical opinion, she may not use that opinion as a “baseline” and then use “raw

evidence” to determine how much more limited the plaintiff is. (Pl.’s Br. at 13). Vincent

sedentary work, the ALJ then appeared to be interpreting MRI evidence to determine

that further restrictions were not appropriate. In this case, the ALJ was considering

whether plaintiff met a listed impairment, and she explained why she found that

plaintiff’s restrictions did not rise to the level of “marked” or “extreme” limitations. (T.

18). The ALJ discussed Dr. Shapiro’s findings together with the plaintiff’s testimony to

show that, although he might be more restricted in some areas than Dr. Shapiro opined,

plaintiff’s limitations did not rise to the level of “marked” or “extreme” in any of the

four broad areas.

With respect to the determination of “equivalency,” SSR 17-2p reads as follows:

If an adjudicator at the hearings or AC level believes that the

evidence already received in the record does not reasonably

support a finding that the individual’s impairment(s) medically

equals a listed impairment, the adjudicator is not required to

articulate specific evidence supporting his or her finding that

the individual’s impairment(s) does not medically equal a

listed impairment. Generally, a statement that the individual’s

impairment(s) does not medically equal a listed impairment

constitutes sufficient articulation for this finding. An

adjudicator’s articulation of the reason(s) why the individual is

or is not disabled at a later step in the sequential evaluation

process will provide rationale that is sufficient for a

subsequent reviewer or court to determine the basis for the

finding about medical equivalence at step 3.

2017 WL 3928306, at *4. The Ruling does not require the ALJ to articulate specific

evidence if she finds that plaintiff’s impairment does not medically equal a listed

impairment, and an analysis which is made part of step four will be “sufficient.” (Id.)

Therefore, the ALJ in this case did not err in failing to specifically address equivalence.

prevent [the court] from upholding them so long as we are ‘able to look to other portions

of the ALJ’s decision and to clearly credible evidence in finding that [her] determination

was supported by substantial evidence.’” Salmini v. Comm’r of Soc. Sec., 371 F. App’x

109, 112-13 (2d Cir. 2010) (quoting Berry, 675 F.2d at 469). I will thus, proceed to

discuss whether the ALJ’s ultimate determination is supported by substantial evidence.

VII. RFC/Weight of the Evidence

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

subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R.

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

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. Weighing Evidence

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

the plaintiff is “disabled” under the Act. Id.

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

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)).

B. Application

Plaintiff argues that the ALJ erred in giving only “partial weight” to the opinions

of plaintiff’s treating social worker LCSW Kolodziejski, and that the ALJ was required

to “explain” his reasons for doing so. (Pl.’s Br. at 6-7). Plaintiff argues that the same

rules apply to the analysis of treating medical sources who are deemed not “acceptable

medical sources” as apply to treating physicians. (Id.) The ALJ did not give LCSW’s

opinion less weight because she was not an “acceptable medical source.” The ALJ did

not even mention whether she was an acceptable source, and instead, evaluated her

opinions based on the other medical evidence in the record, particularly Dr. Shapiro’s

consultative evaluation. (T. 20-21). In fact, as argued by defendant, “consistency” and

“supportability” are, and have always been, important factors in the analysis of any

medical report, even that of a treating physician.10 See also Estrella v. Berryhill, 925

10 Even under the new regulations, governing the analysis of medical evidence, which apply

only to claimants applying for benefits after March 27, 2017, supportability and consistency are key

factors that the ALJ must consider. Revisions to Rules Regarding the Evaluation of Medical Evidence

(“Revisions to Rules”), 82 Fed. Reg. 5844, 5853, 2017 WL 168819 (Jan. 18, 2017). See 20 C.F.R. §§

404.1520c(a), 416.920c(a). The Commissioner “will no longer give any specific evidentiary weight to

medical opinions; this includes giving controlling weight to any medical opinion.” Revisions to Rules,

2017 WL 168819, 82 Fed. Reg. 5844, at 5867–68. Instead, the Commissioner must consider all

medical opinions and “evaluate their persuasiveness” based on the following five factors:

supportability; consistency; relationship with the claimant; specialization; and “other factors.” 20

C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c). These new regulations do not apply to this plaintiff. In

any event, he does not have a treating “physician” for his mental impairments. Thus, the ALJ is not

2008)).

LCSW Kelodziejski completed Onondaga County DSS Forms for Employability.

(T. 290-91, 292, 303, 304-305, 306). These forms included “check boxes” for various

limitations and assessments of whether and for what period of time plaintiff could

perform work. The ALJ first correctly pointed out that such assessments are “based on

different standards of disability.” (T. 20). In addition, when LCSW Kelodziejski first

began completing these forms, she assessed greater limitations than she listed in the

most recent forms. (T. 290-91, 292, 303, 304-305, 306).

On January 12, 2017, LCSW Kelodziejski checked “severely limited” in all areas

but maintenance of personal hygiene. (T. 304). On June 13, 2017, LCSW Kelodziejski

checked boxes stating that plaintiff would have a “severe” limitation in most of the

activities listed, including the capacity to follow, understand, and remember “simple”

instructions and directions; work with others; maintain a schedule; maintain attention;

and “function in a work setting.” (T. 306). LCSW Kelodziejski opined that plaintiff

would have “moderate” restrictions in performing “low stress,” simple, and complex

tasks independently and maintaining personal hygiene. (Id.) She stated that plaintiff

exhibited “extreme” temper and aggressiveness, and he should not work with others.

(Id.) She also checked a box stating that plaintiff “appears totally disabled.” (T. 305).

However, on September 21, 2017, LCSW Kelodziejski checked boxes indicating

that plaintiff was only severely limited in interacting with others and maintaining

required to afford any opinion “controlling weight.”

and the ability to function in a work setting. (T. 292). Plaintiff had only moderate

limitations in the areas of following, understanding, and remembering simple

instructions; performing low stress, simple and complex tasks independently; and

maintaining a schedule or routine. (Id.) Plaintiff had no limitation in maintaining basic

standards of personal hygiene. (Id.) She also checked a box, indicating that plaintiff

should engage in “no activity” except treatment or rehabilitation for four to five months,

but that he was not permanently disabled. (T. 291).

On February 15, 2018, LCSW Kelodziejski checked the same boxes as her

September 2017 form with respect to the plaintiff’s degree of limitation, but also

checked a box indicating that plaintiff could perform “part time” work for three hours

per week for four or five months. (T. 289). Under a section, entitled “reasonable

accommodations,” she listed his inability to work with the public and his lack of

transportation. (T. 289). The ALJ correctly noted that LCSW Kelodziejski’s check-box

forms were contradicted by her own evaluation, stating that plaintiff had normal

psychomotor behavior, normal speech, cooperative behavior, “controlled impulsivity,”

and no suicidal or homicidal ideation.11 (T. 20, 309). The ALJ also correctly noted that

plaintiff’s lack of transportation was not relevant for purposes of Social Security

disability. (T. 20).

11 This evaluation is not dated, but the handwritten notes on the document indicate that it was

completed one year after plaintiff’s mother passed away. (T. 309). Although it is not completely clear

from the record, one of LCSW Kelodziejski’s notes indicates that the diagnosis of bereavement was

made in February of 2016. (T. 306). However, in a different report, the “date identified” for the

bereavement is listed at 3/20/16. In either event, the evaluation in question may have been written in

2017.

notes, that plaintiff was managing his anger over the loss of his mother, and he did not

need “further work” in this regard, she also listed “impulsivity and anger” as a “separate

point.” (Pl.’s Br. at 10) (See T. 323, 325). LCSW Kelodziejski’s note, dated June 25,

2017, states that the plaintiff is “managing his anger over the loss of his mother

effectively and is gradually improving in his ability to discuss and experience the pain

that comes with grief.” (T. 325). It is true that plaintiff’s “impulsive and aggressive

reactivity” is listed separately from his issues with grief and loss. (T. 323). However, in

another evaluation, which may have been written in 2017, she states that his

“impulsivity” generally was “controlled.”12 (T. 309). Although this evaluation also has

a box checked indicating “auditory” and “visual” hallucinations, there is absolutely no

other indication in the record that plaintiff suffers from any type of hallucinations.

LCSW Kelodziejski’s more restrictive limitations were also inconsistent with

plaintiff’s own testimony. The ALJ stated that “the claimant has maintained a broad

range of daily activities that is consistent with the established [RFC].” His activities

suggest “a much higher level of functioning than he is willing to acknowledge.” (T. 21).

12 The court notes that in February of 2016, plaintiff went to CPEP, the comprehensive

psychiatric emergency program at St. Joseph’s Hospital in Syracuse (https://www.sjhsyr.org/

find-a-service-or-specialty/behavioral-health/comprehensive-psychiatric-emergency-program-cpep).

(T. 255-62). He complained of worsening depression after his mother’s death. His mental

examination, conducted by Psychiatrist Amad Bilal, M.D. found that, although plaintiff was depressed,

his affect was full, his speech was clear, his eye contact was good, his psychomotor activity was within

normal limits, there were no perceptual disturbances, no delusions, no suicidal or homicidal ideation,

his recent and remote memory were intact, his judgment and insight were fair, his thought process was

linear and logical, his thought content was within normal limits, he was cooperative, his attention and

concentration were fair, and his cognition was intact. (T. 259-60). He was prescribed medication, but

he was not admitted to the hospital, and was referred to the Brownell Center for counseling. (T. 260).

The “undated” evaluation may have been plaintiff’s initial evaluation at the Brownell Center.

Salmini, 371 F. App’x 109 at 112 (plaintiff’s testimony provided substantial evidence in

support of the ALJ’s conclusion that plaintiff “performs a fairly high level of

independent activities of daily living . . . .”). See also Farszmil v. Comm’r of Soc. Sec.,

No. 1:19-CV-390 (EAW), 2020 WL 3496296, at *4 (W.D.N.Y. June 29, 2020) (citing

Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)) (The ALJ was entitled to consider

plaintiff’s daily activities where the ALJ also considered other evidence in the record

when discounting the doctor’s opinion).

In this case, LCSW Kelodziejski opined in one evaluation that plaintiff was

“severely” restricted in his capacity to follow, understand, and remember “simple”

instructions and directions, a restriction that she later changed to “moderate.” (T. 292,

306). However, plaintiff testified at his hearing that his mother “taught [him] how to

clean,” and he was “not helpless in that way.” (T. 41). Plaintiff also testified that he

watched movies and did jigsaw puzzles for fun. (T. 43). Plaintiff stated that in order to

watch movies, he had to use an application on his computer,13 and he explained how that

application worked to the ALJ. (T. 56). This testimony is inconsistent with a “severe”

inability to follow, understand, and remember simple instructions and directions. Doing

jigsaw puzzles is also inconsistent with a severe limitation on the ability to concentrate

or to maintain attention. Plaintiff also testified that he did not like to watch a movie

more than once because that was boring. (T. 43). This testimony indicates that plaintiff

remembered the movies that he watched, which is also inconsistent with severe memory

13 Plaintiff also remembered the name of the application that he used to get the movies. (T. 56).

her assessment of plaintiff’s limitations, indicating that he had moderate limitations the

ability to follow, understand, and remember simple instructions as well as perform low

stress, simple and complex tasks independently, and could work a few hours per week.14

LCSW Kelodziejski’s evaluations were also inconsistent with Dr. Shapiro’s

evaluation. Dr. Shapiro found that plaintiff had no limitation understanding simple

directions and performing simple tasks. (T. 241). He had moderate limitations

performing complex tasks. Dr. Shapiro’s evaluation is more consistent with plaintiff’s

testimony. Dr. Shapiro stated that plaintiff “may” have “mild limitations maintaining

attention and concentration for tasks “given that he complains of difficulty doing so” and

mild limitations in making appropriate decisions. (Id.) (emphasis added). Dr. Shapiro

found that plaintiff “appears to have” moderate limitations in his ability to maintain a

routine and adhere to a schedule, learn new tasks, relate with others, and deal with

stress. (Id.) The ALJ did not adopt Dr. Shapiro’s finding that plaintiff would have

“moderate” restrictions in maintaining a schedule and a routine. (T. 20). The ALJ also

did not adopt LCSW Kelodziejski’s 2018 finding of moderate restrictions in the ability

to maintain a schedule, nor her earlier opinions of a “severe” restriction in that area.

However, the ALJ’s determination does not need to perfectly correspond with any of the

opinions of medical sources cited in her decision, as long as the ALJ made an RFC

14 The court understands that working a “few” hours per week does not rise to the level of

substantial gainful activity. This citation to LCSW Kelodziejski’s more recent evaluation is simply to

show that the plaintiff’s limitations were not as great as she originally wrote and could be considered

in conjunction with the other evidence of record to develop plaintiff’s RFC.

Sec., 752 F. App’x 75, 79 (2d Cir. 2018) (citing Schaal v. Apfel, 134 F.3d 496, 504 (2d

Cir. 1998)).

In this case, the plaintiff testified regarding his ability to attend his counseling

appointments. He testified that his appointments were “every Thursday, and that he

never missed an appointment, unless his counselor called to tell him that it was

cancelled. (T. 50-51). He described how he waited for the medical cab to pick him up

and waited at the counselor’s office until she came out to see him. (Id.) This is

consistent with a finding that plaintiff is capable of maintaining a routine and a

schedule.15 Even if the ALJ erred in failing to adopt both providers’ “moderate”

limitations in plaintiff’s ability to maintain a schedule, a “moderate” restriction is still

consistent with the ability to perform substantial gainful activity, and would at most, be

harmless error. Lowry v. Comm’r of Soc. Sec., No. 1:15-CV-1553 (GTS/WBC), 2017

WL 1290685, at *4 (N.D.N.Y. Mar. 16, 2017), report and recommendation adopted,

2017 WL 1291760 (N.D.N.Y. Apr. 6, 2017) (moderate limitations in the ability to

maintain concentration or a regular schedule or to deal with stress do not prevent a

claimant from performing simple, routine work); Sipe v. Astrue, 873 F. Supp. 2d 471,

481 (N.D.N.Y. 2012) (moderate limitations in “relating to instructions, concentration,

and attendance” were consistent with unskilled work).

Plaintiff argues that, where an individual’s impairments are primarily psychiatric,

15 The court again notes that this testimony is not equivalent to a finding that plaintiff can work.

However, it is “consistent” and ability to maintain a schedule, and inconsistent with LCSW

Kelodziejski’s more severe restrictions.

skepticism,” implying that the ALJ should not have given Dr. Shapiro’s opinion as

much weight. (Pl.’s Br. at 8) (emphasis added). However, the cases that plaintiff cites

involve “non-examining” physicians and hold that a psychiatric diagnosis should be

made on a “personal interview.” See e.g. Ortiz v. Colvin, No. 3:15-CV-956, 2016 WL

4005605, at *8 (D. Conn. July 26, 2016). The court in Ortiz was referring to a non-

examining physician.16 Dr. Shapiro was an examining psychologist and personally

interviewed the plaintiff before assessing his limitations. The cases cited by plaintiff do

not support the same conclusion with respect to consultative professionals who

16 The court in Ortiz specifically stated:

Indeed, for this reason, “[i]n the context of a psychiatric disability

diagnosis, it is improper to rely on the opinion of a non-treating,

non-examining doctor because the inherent subjectivity of a psychiatric

diagnosis requires the physician rendering the diagnosis to personally

observe the patient.” Velazquez v. Barnhart, 518 F. Supp. 2d 520, 524

(W.D.N.Y. 2007); see also Rodriguez v. Astrue, No. 07-CV-534 (WHP/

MHD), 2009 WL 637154, at *26 (S.D.N.Y. Mar. 9, 2009) (In the context

of a claimant’s application for SSI based on a mental disability, the

findings of the non-examining physician “should have been discounted

or addressed with some skepticism because they were largely

inconsistent with the examining physician’s findings and did not account

for the subjective nature of the patient’s disease.” (citation and internal

quotation marks omitted)). Plaintiff’s impairments are primarily

psychiatric and thus, the ALJ’s reliance on the opinions of the state

reviewing non-examining and consulting physicians should be viewed

with some skepticism. Where, as here, plaintiff has an established

treatment history with not just one, but two, treating physicians, “it is

improper to rely on the opinion of a non-treating, non-examining doctor

because the inherent subjectivity of a psychiatric diagnosis requires the

physician rendering the diagnosis to personally observe the patient.”

2016 WL 4005605, at *8 (alterations in original) (additional citations omitted). Although one sentence

states that the opinions of the state reviewing non-examining and consulting physicians should be

viewed with some skepticism, the court was clearly referring to non-examining consultants in it’s

decision.

Plaintiff testified that his most significant limitation was his inability to interact

with others. (T. 37, 41). As stated above, plaintiff testified that he could probably do

everything that anyone else did, except he was slower, but that he “can’t work around

other people.” (T. 41). Plaintiff testified that he did not trust others, and they were

always putting him down. (T. 41). The ALJ took plaintiff’s inability to work with

others into account when she determined that the plaintiff could only have “superficial,”

“occasional” contact with coworkers, supervisors, and the public. (T. 19). The ALJ also

took into account plaintiff’s moderate restriction in “pace,” by requiring plaintiff to be

employed at “goal-oriented,” rather than “production-pace” oriented work. (T. 19).

With neither LCSW Kelodziejski’s, nor Dr. Shapiro’s evaluations deserving of

the “controlling” weight afforded to a treating physician, the ALJ justifiably weighed all

the evidence, including these reports to establish an RFC which was consistent with the

entire record. It was the ALJ’s role to weigh and resolve conflicts in the evidence.

Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citation omitted). Although

plaintiff argues that to the extent that the ALJ perceives inconsistencies in a treating

opinion, she is “obliged” to recontact the physician in an attempt to resolve them. (Pl.’s

Br. at 9). As of 2012, the ALJ is no longer required to recontact the treating source in

order to properly develop the record. See Stack v. Comm’r of Soc. Sec., No. 19-CV-466,

17 In fact, the ALJ noted that Dr. Harding’s opinion was an “underestimate” of the plaintiff’s

mental limitations, “given the updated counseling records received at the hearing level” and gave

Harding’s opinion “partial evidentiary weight.” (T. 20). Dr. Harding was a non-examining State

Agency consultant. Clearly, the ALJ gave consideration to LCSW Kelodziejski’s reports in making

this determination.

2020 WL 5651601, at *4 (W.D.N.Y. Sept. 23, 2020) (comparing 20 C.F.R. § 404.1512

(e)(1) (2011) (we will first recontact your treating physician or other medical source to

determine if additional information is readily available) with 20 C.F.R. § 404.1520b

(b)(2)(1) (2017) (“We may recontact your medical source.”’)). The amendment has given

the ALJ more flexibility, but does not eliminate the ALJ’s duty to develop the record

“when additional information is needed due to the vagueness, incompleteness, or

inconsistency of the treating source’s opinion.” /d. (citations omitted).

However, in this case, LCSW Kelodziejski’s opinions are not vague, they were

inconsistent with Dr. Shapiro’s analysis and also inconsistent with plaintiff's own

testimony regarding his daily activities and what he is capable of doing. The ALJ had

sufficient evidence in the record to make the RFC determination, and recontacting the

plaintiff's counselor was not required.

WHEREFORE, based on the findings above, it is

ORDERED, that the decision of the Commissioner is AFFIRMED and this case

DISMISSED, and it is

ORDERED, that the Clerk enter judgment for DEFENDANT.

Dated: October 1, 2020 ( | Zz

Andrew T. Baxter

U.S. Magistrate Judge

29