Mailloux v. Commissioner of Social Security

NOUNRITTHEEDR SNT DAITSETSR DICISTT ORFIC NTE CWO YUORRTK

______________________________________________________________________

RAYMOND M.,

Plaintiff,

v. 5:19-CV-1313

(ATB)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

______________________________________________________________________

HOWARD D. OLINSKY, ESQ., for Plaintiff

CHRISTOPHER L. POTTER, Special Asst. U.S. Attorney for Defendant

ANDREW T. BAXTER, U.S. 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, 8).

I. PROCEDURAL HISTORY

On May 18, 2018, plaintiff filed an application for Disability Insurance Benefits

(“DIB”), alleging disability beginning May 6, 2018. (Administrative Transcript (“T”)

155-158). Plaintiff’s application was denied initially on July 18, 2018. (T. 88-97).

Administrative Law Judge (“ALJ”) Robyn L. Hoffman granted plaintiff’s request for a

hearing and heard plaintiff’s testimony on May 1, 2019. (T. 30-63). On June 3, 2019,

the ALJ issued an order denying plaintiff’s claim. (T. 10-29). The ALJ’s decision

became the Commissioner’s final decision when the Appeals Council denied plaintiff’s

request for review on August 26, 2019. (T. 1-6).

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

hired if he applied for work.

42 U.S.C. § 1382c(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 without considering vocational

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

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

dcaepspacitiety t htoe cplearifmoramnt ’hsi ss epvaesrte w imorpka. i rFmineanltl,y h, eif h tahse tchlea irmesaindtu iasl ufunnabctlieo tnoal

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 her impairment prevents her from performing

her 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.

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

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

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

v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (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, at *6 (W.D.N.Y. Dec. 6, 2010).

III. FACTS

Plaintiff was born on March 17, 1977, making him 42 years old on the date of the

administrative hearing. (T. 35). He lived with his wife and their three children, ages

14, 9, and 4. (T. 36). Plaintiff served in the United States Army from 1996 until 2012.

During his service, plaintiff was deployed to Afghanistan and Iraq as a combat engineer

and infantryman, and earned a Purple Heart. (T. 37, 159, 333). He was discharged

from the Army for medical reasons. (T. 341). After leaving the military, he obtained a

bachelors degree and a masters degree in social work. (T. 183, 543, 757).

During his military service, plaintiff had been exposed to repeated physical

trauma, including a head injury suffered after his vehicle was hit by a roadside bomb.

(T. 188, 332, 341-342). He was first treated for traumatic brain injury, post-traumatic

stress disorder (“PTSD”), anxiety, and depression while in the Army, including a

hospitalization in 2011 after experiencing suicidal thoughts. (T. 338, 543). He

continued with medication management and counseling through the Veterans Health

Administration (“VHA”) after leaving the military. (T. 337-339, 347, 584).

Plaintiff held ten jobs since 2012, including associate at a grocery store, delivery

driver for an auto parts retailer, and substance abuse counselor. (T. 216, 583). He

reported that his PTSD symptoms and other mental impairments had repeatedly

interfered with his work, typically resulting in termination or voluntary departures after

a few months. (T. 39-41, 223, 315, 583, 757). His most recent employment, as a

discharge coordinator at a hospital, ended in termination after three months for

inadvertently violating medical privacy rules when he mistook one patient for another.

(T. 38-39, 757).

The ALJ’s decision and the parties’ briefs provide a detailed statement of the

medical and other evidence of record. 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

After reviewing the procedural history of the plaintiff’s application and stating

the applicable law, the ALJ found that plaintiff had not engaged in substantial gainful

activity (“SGA”) since his alleged onset date. (T. 15). At step two of the sequential

evaluation, the ALJ found that plaintiff had the following severe impairments: left

rotator cuff injury; sleep apnea; traumatic brain injury; obesity; depression; anxiety; and

PTSD. (Id.) At step three, 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. 16-18).

At step four, the ALJ found that plaintiff had the RFC to perform less than the

full range of light work, as defined in 20 C.F.R. §§ 404.1567(b). (T. 18-22).

Specifically, she found that plaintiff could occasionally lift and carry twenty pounds,

frequently lift and carry ten pounds, sit for up to six hours, and stand or walk for

approximately six hours in an eight hour workday with normal breaks. (T. 18) Plaintiff

could occasionally climb ladders, ropes, and scaffolds, and can occasionally reach

overhead with his left arm. (Id.) With regard to mental limitations, plaintiff retained the

ability to understand and follow simple instructions and directions; perform simple

tasks independently; maintain attention and concentration for simple tasks; regularly

attend to a routine and maintain a schedule; relate to and interact appropriately with all

others to the extent necessary to carry out simple tasks; and handle simple, repetitive

work-related stress, in that plaintiff could make occasional decisions directly related to

the performance of simple tasks in a position with consistent job duties that did not

require plaintiff to supervise or manage the work of others. (Id.)

Next, the ALJ found that plaintiff was unable to perform his prior relevant work.

(T. 23-24). However, at step five, using the Medical Vocational Guidelines as a

framework, the ALJ found that “the occupational base for light work is only minimally

eroded by [plaintiff’s] additional limitations,” so there were jobs existing in significant

numbers in the national economy that plaintiff could perform. (T. 24-25). Thus, the

ALJ found that plaintiff was not disabled. (T. 25).

V. ISSUES IN CONTENTION

Plaintiff contends that the ALJ erred in her evaluation of plaintiff’s mental

functional limitations by improperly relying on an outdated opinion of a non-examining

consulting opinion and rejecting the more restrictive opinions of multiple examining

contends that the ALJ sufficiently evaluated the evidence of record, and that her

decision was supported by substantial evidence. (Defendant’s Brief (“Def.’s Br.”) at 4-

23) (Dkt. No. 12). For the reasons set forth below, the court concludes that the ALJ’s

RFC determination was not supported by substantial evidence. As a result, the ALJ’s

analysis at step five and the ultimate finding that plaintiff was not disabled were

tainted. Accordingly, the court orders a remand for further administrative proceedings

to adequately develop and assess the medical evidence as necessary, in order to

determine an RFC that is properly supported.

DISCUSSION

VI. RFC/EVALUATING MEDICAL 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.

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)

(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. Evaluating Medical Evidence

The regulations regarding the evaluation of medical evidence have been amended

for claims filed after March 27, 2017, and several of the prior Social Security Rulings,

Commissioner “will no longer give any specific evidentiary weight to medical opinions;

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

Regarding the Evaluation of Medical Evidence (“Revisions to Rules”), 2017 WL

168819, 82 Fed. Reg. 5844, at 5867–68 (Jan. 18, 2017), see 20 C.F.R. §§ 404.1520c(a),

416.920c(a). 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).

Although the new regulations eliminate the perceived hierarchy of medical

sources, deference to specific medical opinions, and assigning “weight” to a medical

opinion, the ALJ must still “articulate how [he or she] considered the medical opinions”

and “how persuasive [he or she] find[s] all of the medical opinions.” Id. at

§§ 404.1520c(a) and (b)(1), 416.920c(a) and (b)(1). The two “most important factors

for determining the persuasiveness of medical opinions are consistency and

supportability,” which are the “same factors” that formed the foundation of the treating

source rule. Revisions to Rules, 82 Fed. Reg. 5844-01 at 5853. An ALJ is specifically

required to “explain how [he or she] considered the supportability and consistency

factors” for a medical opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). With

respect to “supportability,” the new regulations provide that “[t]he more relevant the

objective medical evidence and supporting explanations presented by a medical source

are to support his or her medical opinion(s) or prior administrative medical finding(s),

be.” Id. at §§ 404.1520c(c)(1), 416.920c(c)(1). The regulations provide that with

respect to “consistency,” “[t]he more consistent a medical opinion(s) or prior

administrative medical finding(s) is with the evidence from other medical sources and

nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior

administrative medical finding(s) will be.” Id. at §§ 404.1520c(c)(2), 416.920c(c)(2).

Under the new regulations an ALJ must consider, but need not explicitly discuss,

the three remaining factors in determining the persuasiveness of a medical source’s

opinion. Id. at §§ 404.1520c(b)(2), 416.920c(b)(2). However, where the ALJ has

found two or more medical opinions to be equally well supported and consistent with

the record, but not exactly the same, the ALJ must articulate how he or she considered

those factors contained in paragraphs (c)(3) through (c)(5). Id. at §§ 404.1520c(b)(3),

416.920c(b)(3).

B. Application

As discussed above, plaintiff’s application for benefits is governed by the

amended regulations that eliminate the treating physician rule because it was filed after

March 27, 2017. In this case, the ALJ considered multiple medical opinions related to

plaintiff’s physical and mental limitations. Plaintiff has only challenged the ALJ’s

evaluation of the mental health opinions. (Pl. Br. at 12-21). A summary of these

mental health opinions are set out below, in chronological order. The court will then

explain its reasoning for the conclusion that the ALJ’s evaluation of those opinions was

not supported by substantial evidence.

Dr. Corey Anne Grassl performed a consultative psychiatric examination of

plaintiff on June 25, 2018. (T. 543-546). Prior to the examination, plaintiff reported

frequent awakening, loss of appetite, difficulty with concentration, hopelessness, a

depressed mood, and feelings of worthlessness. (T. 543). He reported experiencing

panic attacks three times per week, problems with short and long-term memory, and

difficulties with planning and organization. (Id.) Regarding activities of daily living,

plaintiff reported that he required his wife’s assistance with dressing, bathing,

grooming, and household chores such as laundry, shopping, and cooking. (T. 545).

During the single examination by Dr. Grassl, plaintiff demonstrated a cooperative

demeanor and an “adequate” manner of relating. (T. 544). He showed a coherent and

goal-directed thought process with no evidence of hallucinations, delusions, or

paranoia. (Id.) He had a depressed affect and a “severely dysthymic” mood. Plaintiff’s

attention and concentration were intact, and he was able to perform simple calculation

and counting exercises. (Id.) His recent and remote memory skills appeared mildly

impaired, as plaintiff was able to remember a list of three objects immediately, but only

recall two of three after a delay. (T. 545). He was able to recite a series of four digits

forward, but recited no digits backward. (Id.)

Based on her examination, Dr. Grassl opined that plaintiff showed “no evidence

of limitation in his ability to understand, remember, and apply simple directions and

instructions; maintain personal hygiene and appropriate attire; and be aware of normal

hazards and take appropriate precautions.” (Id.) In Dr. Grassl’s opinion, plaintiff was

and instructions; use reason and judgment to make work-related decisions; sustain

concentration and perform a task at a consistent pace; and regulate emotions, control

behavior, and maintain well-being.” (Id.) She further opined that plaintiff was

“moderately limited in his ability to interact adequately with supervisors, co-workers

and the public and sustain an ordinary routine and regular attendance at work.” (Id.)

Dr. Grassl concluded that these difficulties were caused by cognitive deficits and

psychiatric problems. (Id.) She gave plaintiff a guarded prognosis, and expected his

impairments to last more than one year. (T. 546).

The ALJ concluded that Dr. Grassl’s opinion was not persuasive. (T. 22). She

found that the moderate and marked limitations described in the consultative

examination opinion were “more extreme than, and not consistent with the overall

medical evidence, which shows general improvement in symptoms with medication and

when [plaintiff] attends treatment.” (Id.)

2. State Agency Consultant Dr. Howard Ferrin

Dr. Howard Ferrin, a state agency psychological consultant, reviewed plaintiff’s

then-current medical records and issued a Mental RFC Assessment on July 17, 2018.

(T. 80-82). Based upon that review, Dr. Ferrin opined that plaintiff had no limitations

in his ability to remember locations and work-like procedures or his ability to

understand and remember very short and simple instructions, and that plaintiff was “not

significantly limited” in his ability to understand and remember detailed instructions.

(T. 80). He further opined that plaintiff was “moderately limited” in his ability to

within customary tolerances. (T. 80-81). In addition, he considered plaintiff to be

“moderately limited” in his ability to complete a normal workday and workweek

without interruptions from psychologically based symptoms and to perform at a

consistent pace without an unreasonable number and length of rest periods. (T. 81).

Dr. Ferrin opined that plaintiff had no significant limitations with regard to social

interaction, but was moderately limited in his ability to respond appropriately to

changes in the work setting. (T. 81).

Dr. Ferrin explained the factors that influenced his opinion. (T. 82). He

reviewed Dr. Grassl’s June 2018 consultative examination, and noted that plaintiff

presented with a severely dysthymic mood and showed mild memory impairment. (Id.)

Otherwise, Dr. Ferrin found the consultative examination report to depict plaintiff as

fully oriented, with intact attention and concentration, and an average range of

intellectual functioning. (Id.) Dr. Ferrin also cited unspecified VHA records that

indicated a generally euthymic mood and no significant cognitive limitation, despite

plaintiff’s history of traumatic brain injury. (T. 82). He noted that a speech and

language evaluation conducted in January 2018 indicating mild communicative issues,

but appeared to “have been based largely upon self-report checklist rather than

objective exam findings.” (T. 82, 425).

Dr. Ferrin also relied upon summaries of two prior neuropsychological

evaluations in the VAMC records, performed in July 2012 and May 2013. (T. 82, 423)

The summary of the July 2012 exam indicated that plaintiff “performs in the normal

testing.” (T. 82, 423). According to the summary of the May 2013 report, plaintiff’s

low scores were “uninterpretable” due to performance validity concerns. (T. 423). Dr.

Ferrin thus concluded that “even though [plaintiff] scored within the normal range on

all cognitive tests, the neuropsychologist apparently opined that [plaintiff’s] cognitive

test scores likely under-represented [plaintiff’s] actual level of his cognitive abilities.”

(T. 82).

Based on these results and the mental status examinations available in the record,

Dr. Ferrin opined that plaintiff “appears capable of understanding and remembering

complex work procedures,” and despite “. . . lapses in focus, motivation, and

reliability, the frequency, intensity, and duration of these occurrences would not be

expected to significantly detract from [plaintiff’s] ability to complete work-like

procedures.” He also opined that plaintiff was able to relate and respond in an

appropriate manner without substantial limitations, and despite “some difficulty coping

in stressful circumstances,” plaintiff appeared capable of adapting to customary

changes in an ordinary work environment. (Id.) In reaching these conclusions, Dr.

Ferrin recognized that his opinion was less restrictive than the only other opinion then

in the record, from Dr. Grassl. (T. 83). He explained that he considered Dr. Grassl’s

opinion to be an overestimate of plaintiff’s functional limitations. (Id.)

The ALJ found Dr. Ferrin’s opinion to be persuasive, in light of the state agency

consultant’s agency knowledge, expertise in the field, and review of the available

record. (T. 22). The ALJ also found that further development of the record after Dr.

analysis, because plaintiff improved with medication despite failing to attend several

therapy sessions. (Id.)

3. Examining Psychologist Dr. Michael Thompson

Dr. Michael Thompson, a clinical psychologist, evaluated plaintiff for PTSD on

July 20, 2018. (T. 580-588). He noted that plaintiff’s PTSD was characterized by

symptoms including hyperarousal episodes, avoidance symptoms, re-experiencing

symptoms and negative cognitions. (T. 581). At the time of the examination, plaintiff

reported that he was drinking an average of four to six beers per day in an attempt to

self-medicate his symptoms. (Id.) Upon review of plaintiff’s history, Dr. Thompson

found that plaintiff had held approximately ten jobs since 2012, and had “been either

fired from them [or] left them before he was fired because of his PTSD symptoms.” (T.

583).

During the examination, plaintiff was cooperative and made good eye contact,

with a rational and goal-directed thought process. (T. 587). Plaintiff’s basic cognitive

functioning presented as grossly intact, and Dr. Thompson estimated that his

intellectual skills were in the above-average range. (Id.) Plaintiff’s mood was anxious

with some distress. (Id.) Plaintiff had a mildly constricted affect and an overall

presentation that Dr. Thompson deemed “consistent with the current severity of his

PTSD symptoms.” (Id.) Upon review of plaintiff’s 2012 PTSD evaluation results, Dr.

Thompson opined that plaintiff’s PTSD symptoms had progressed from moderate to

“fully severe.” (Id.) He also opined that plaintiff was “totally and permanently

588). In Dr. Thompson’s opinion, the chronicity and marked severity of plaintiff’s

symptoms would preclude any capacity for maintaining “even a marginal semblance” of

behavioral or emotional stability in a work setting, whether sedentary or non-sedentary.

(Id.) Dr. Thompson also opined that plaintiff was “experiencing persistent and severe

impairments in all areas of his psychosocial functioning and general quality of life.

Essentially, [plaintiff’s] ability to enjoy any daily activity whether solitary [or] social is

severely compromised by his symptoms.” (Id.)

The ALJ found Dr. Thompson’s opinion to be “neither valuable nor persuasive.”

(T. 23). She found that his conclusion that plaintiff provided no specific assessment of

plaintiff’s ability to perform work-related activities, and his conclusion regarding

overall disability was an issue reserved to the Commissioner. (T. 23).

4. Examining Psychologist Dr. Charles Bradshaw

Dr. Charles Bradshaw performed a neuropsychological evaluation of plaintiff on

September 26, 2018. (T. 675-681). His assessment included tests for vocabulary,

reading ability, and general intelligence as well as measurements of memory,

depression, and anxiety. (T. 675). Dr. Bradshaw observed that plaintiff was fully

oriented and alert, and able to maintain attention. (T. 675-676). He saw no evidence of

tangential, disordered, or delusional thinking. Plaintiff appeared polite, friendly, and

cooperative, and applied “adequate effort” to all test tasks. (T. 676). In Dr. Bradshaw’s

opinion, the test results were a valid indication of plaintiff’s current level of cognitive

functioning. (Id.)

above-average cognitive functioning, with variable memory, and severe levels of

depression, anxiety, and PTSD. (Id.) Dr. Bradshaw opined that the severity of

plaintiff’s “emotional stress is probably sufficient to compromise his cognitive

functioning in his daily activities, particularly in the areas of attention, concentration,

learning and recall, which are sensitive to the compromising effects of emotional

stress.” (T. 679). Based on the examination results, Dr. Bradshaw opined that

plaintiff’s cognitive difficulties were more likely to be a result of his psychiatric

impairments and less likely to be a result of his traumatic brain injury. (Id.) He further

opined that plaintiff’s cognition will improve if his stress can be more effectively

treated. (Id.)

The ALJ found Dr. Bradshaw’s opinion to be persuasive, “insofar as the

recommendations based upon testing have been considered in formulating the B criteria

and the residual functional capacity, to the extent that these recommendations are

consistent with the overall medical evidence of record.” (T. 23).

5. Treating Psychiatrist Dr. Katherine Cerio

Plaintiff’s most recent treating psychiatrist, Dr. Katherine Cerio, prepared a

Medical Source Statement dated October 17, 2018. (T. 548-550). As of the date of her

opinion, Dr. Cerio had seen plaintiff for a total of seven visits since June 2018. (T.

548). Plaintiff had been treated by other staff at the same VHA facility since July 2016.

(Id.) At the time of her opinion, plaintiff had been prescribed four psychiatric

medications, and was regularly encouraged to participate in individual therapy sessions.

Dr. Cerio opined that plaintiff would need to take two or more unscheduled

breaks during the workday due to his psychiatric symptoms, and that he would be off-

task for more than twenty percent of the workday. (T. 550). She estimated that these

impairments would cause plaintiff to miss more than four days per month of work. (Id.)

In Dr. Cerio’s opinion, plaintiff’s work-related limitations were primarily

psychological, including reduced motivation, decreased attentional capacity, markedly

decreased frustration tolerance and angry outbursts, as well as triggers linked to

traumas from his wartime service. (Id.) Based upon her own treatment experience with

plaintiff as well as a review of his prior treatment records, Dr. Cerio opined that

plaintiff’s impairments had existed and persisted to the same degree since at least May

6, 2018. (T. 551).

The ALJ determined that Dr. Cerio’s opinion was not persuasive. (T. 23). She

found that the treating psychiatrist’s opinion was not consistent with her own treatment

notes indicating that plaintiff’s symptoms improved with medication, despite several

missed therapy appointments. (T. 23). In addition, the ALJ found Dr. Cerio’s estimate

of time off task and absent from work to be “mere speculation, not supported by her

treatment notes, or the evidence of record.” (Id.)

6. The ALJ’s Evaluation of the Medical Opinion Evidence

Was Not Supported by Substantial Evidence.

At their most basic, the amended regulations require that the ALJ explain her

findings regarding the supportability and consistency for each of the medical opinions,

“pointing to specific evidence in the record supporting those findings.” Jacqueline L.

meet this requirement.

The ALJ provided no substantive explanation for her conclusion that Dr. Ferrin’s

opinion was persuasive, making only general reference to the state agency consultant’s

expertise and experience, and his review of the available record. (T. 22). This

omission alone would likely warrant remand. See Cuevas v. Comm’r of Soc. Sec., No.

20-CV-502 (AJN)(KHP), 2021 WL 3633682, at *14 (S.D.N.Y. January 29, 2021)

(“Nowhere in the ALJ's decision does she explain, as the new regulations require, what

the respective CEs used to support their opinions and reach their ultimate

conclusions.”) At least one court has held that such an error cannot be found harmless

at this time. Id., 2021 WL 3633682, at *14 (“Given the newness of the regulations, the

ALJ's failure to develop the record in significant areas . . . and the ALJ's failure to

properly apply the new regulations replacing the treating physician rule, this Court will

not engage in a substantial evidence review to determine if the legal errors were

harmless.”).

This case does not require the court to adopt such a rigid approach, but remand is

still required. The inadequate explanation for the ALJ’s reliance on Dr. Ferrin’s non-

examining opinion clearly leaves pertinent questions unanswered. Danette Z. v.

Comm’r of Soc. Sec., No. 1:19-CV-1273 (ATB), 2020 WL 6700310, at *8 (N.D.N.Y.

November 13, 2020) (“[T]he ALJ's stated reason for affording the most weight to [the

non examining consultant’s] opinion – ‘[h]is opinion is supported by his review of the

record’ - provides little insight into the ALJ's consideration of the conflicting

With regard to supportability, the court notes that Dr. Ferrin appears to have

heavily relied upon a summary of July 2012 and May 2013 neuropsychological

examination of plaintiff, that predated plaintiff’s alleged onset date of May 6, 2018 by

at least five years. (T. 82, 423). At the time of his review, Dr. Ferrin did not have

access to the September 2018 neuropsychological examination of plaintiff conducted

by Dr. Thompson, that showed “significantly elevated levels of depression, anxiety and

PTSD” “sufficient to account for his cognitive difficulties, particularly in areas of

attention, concentration, learning and memory . . .” (T. 676). Moreover, the record

includes the full test results from 2018, rather than a mere summary, and includes Dr.

Bradshaw’s conclusion that the test was “a valid indication of plaintiff's current level of

cognitive functioning.” (Id.) Dr. Bradshaw also opined that plaintiff’s cognition will

improve if his stress can be “more effectively” treated, suggesting that his symptoms

were not controlled at the time of the test.

By itself, “[a] gap of time between when an opinion is rendered and the disability

hearing and decision does not automatically invalidate that opinion.” Majdandzic v.

Comm'r of Soc. Sec., No. 17-CV-1172, 2018 WL 5112273, at *3 (W.D.N.Y. Oct. 19,

2018). However, a “meaningful change” in plaintiff's condition during the gap will do

so. Lamar v. Comm'r of Soc. Sec., No. 18-CV-829, 2020 WL 548376, at *3 (W.D.N.Y.

Feb. 4, 2020) (emphasis supplied). A consultative opinion may thus become stale “if

the claimant's condition deteriorates after the opinion is rendered and before the ALJ

issues his decision.” Maxwell H. v. Comm'r of Soc. Sec., 1:19-CV-0148 (LEK/CFH);

Comm'r of Soc. Sec., No. 18-CV-30, 2018 WL 6715361, at *5 (W.D.N.Y. Dec. 21,

2018). Given the potential that plaintiff’s 2018 neuropsychological test results

represent a deterioration in plaintiff’s condition, the ALJ should have addressed it in

discussing the supportability of Dr. Ferrin’s opinion.

With respect to consistency, the ALJ should have addressed the fact that Dr.

Ferrin’s opinion was an outlier among the medical opinions of record. A recent survey

of district court cases in the Second Circuit applying the amended regulations

recognized that many of the factors to be considered in weighing the various medical

opinions in a given claimant's medical history are substantially similar. See Cuevas,

2021 WL 3633682, at *9 (collecting cases). For example, “[e]ven though ALJs are no

longer directed to afford controlling weight to treating source opinions - no matter how

well supported and consistent with the record they may be – the regulations still

recognize the ‘foundational nature’ of the observations of treating sources, and

‘consistency with those observations is a factor in determining the value of any

[treating source's] opinion.’” Shawn H. v. Comm’r of Soc. Sec., No. 2:19-CV-113,

2020 WL 3969879, at *6 (D. Vermont July 14, 2020) (quoting Barrett v. Berryhill, 906

F.3d 340, 343 (5th Cir. 2018)), see also Jacqueline L. v. Comm’r of Soc. Sec., No. 6:19-

CV-6786, 2021 WL 243099, at *4 (W.D.N.Y. January 26, 2021). As the amended

regulations note, "[a] medical source may have a better understanding of your

impairment(s) if he or she examines you than if the medical source only reviews

evidence in your folder." 20 C.F.R. §§ 404.1520c(c)(3)(v), 416.920c(c)(3)(v).

2018 consultative examination, but issued a far less restrictive opinion of plaintiff’s

functional limitations as compared to Dr. Grassl, who actually conducted the

examination. (T. 83). Dr. Ferrin’s opinion was also less restrictive than the subsequent

opinions of Dr. Cerio, Dr. Bradshaw, and Dr. Thompson, who had the advantage of

examining plaintiff at least once. Shawn H., 2020 WL 3969879, at *8 (remanding

where ALJ relied upon opinion of non-examining consultant who had no opportunity to

review treating source opinions that described greater restrictions); see also Danette Z.

v. Comm’r of Soc. Sec., No. 1:19-CV-1273 (ATB), 2020 WL 6700310, at *8 (N.D.N.Y.

November 13, 2020) (remanding, in part, due to non-examining consultant’s inability to

review later treating source opinion). Dr. Ferrin also had no opportunity to review Dr.

Cerio’s psychiatric treatment notes from July 2018 to September 2018. Tarsia v.

Astrue, 418 F. App'x 16, 18 (2d Cir. 2011) (where it is unclear whether agency

consultant reviewed all of claimant's relevant medical information, consultant's opinion

is not supported by evidence of record as required to override treating physician

opinion).

The ALJ’s evaluation of these examining physician opinions suffers from the

same inadequate explanation of her conclusions regarding supportability and

consistency. With respect to consulting examiner Dr. Grassl’s opinion, the ALJ merely

states that her assessment “is more extreme than, and not consistent with, the overall

medical evidence, which shows general improvement in symptoms with medication and

when the claimant attends treatment.” (T. 23). Likewise, the ALJ found Dr.

consistent with the overall medical evidence of record.” (Id.) The ALJ provided

slightly more analysis regarding treating psychiatrist Dr. Cerio, discounting her opinion

because it was “not consistent with Dr. Cerio’s own treatment notes indicating

improvement with medication” and plaintiff’s own statements reporting improvement.

(Id.) He also discounted Dr. Cerio’s estimates that plaintiff would be off task and

absent from work as “mere speculation, not supported by her treatment notes, or the

evidence of record.” (Id.)

In assessing the psychiatric opinion evidence, the ALJ repeatedly considered

whether an opinion was consistent with perceived improvements in plaintiff’s mental

functional limitations. (T. 22-23). Beyond the vague references to the overall record, it

is unclear what evidence supports the ALJ’s conclusion that plaintiff’s psychiatric

symptoms have demonstrably improved. In June 2018, plaintiff reported that he “feels

no better since an increase in his medication,” had difficulty sleeping, and felt increased

irritability. (T. 627, 629). Plaintiff also reported that he “has tried to push himself to be

more present” but has not been enjoying recent family events such as his son’s sporting

events and family trips. (T. 627-628). In July 2018, plaintiff reported that his mood had

not improved after an upward adjustment in his medication, and that a downward

adjustment in his sleep medication still left him groggy in the morning. (T. 613).

Plaintiff reported continued irritability, and intermittent suicidal thoughts. (Id.)

Plaintiff generally reported “feeling good” in July 2018, but upon further

questioning, he reported that he was feeling depressed, with an increase in irritability

his mood was “a little better” but described continued struggles with motivation. (T.

577). Dr. Cerio observed a dysthymic affect during this counseling session, and began

monitoring plaintiff for possible bipolarity. (T. 579). She increased his medication.

(Id.) In September 2018, Dr. Cerio observed that plaintiff mood had “improved

somewhat,” although plaintiff merely described it as “ok . . . good.” (T. 672-73).

Plaintiff reported more energy and motivation, but irritability persisted, and caused

some conflict at home. (T. 671).

It must be noted again that none of the medical professionals who actually

examined plaintiff have endorsed the significant functional improvement described by

the ALJ. (T. 546, 550, 588, 679). In light of the contrary evidence in the record, and

the minimal explanation provided in her decision, it is unclear how the ALJ reached the

opposite conclusion. “Although an RFC determination is an issue reserved for the

Commissioner, the ALJ is a layperson, and as such is not qualified to assess a

claimant's RFC on the basis of bare medical findings.” Anderson v. Comm'r of Soc.

Sec., No. 19-CV-464, 2020 WL 5593799, at *3 (W.D.N.Y. Sept. 18, 2020) (internal

quotation marks omitted). “In other words, an ALJ's ability to make inferences about

the functional limitations caused by an impairment does not extend beyond that of an

ordinary layperson. While an ALJ may render common sense judgments about

functional capacity, she must avoid the temptation to play doctor.” Duncan v. Comm'r

of Soc. Sec., No. 18-CV-369, 2020 WL 1131219, at *2 (W.D.N.Y. Mar. 9, 2020)

(internal quotation marks and brackets omitted). The ALJ’s minimal explanation in her

the ALJ substituted her lay opinion for expert opinion2 regarding plaintiff’s

improvement, remand would also be required.

VII. NATURE OF REMAND

“When there are gaps in the administrative record or the ALJ has applied an

improper legal standard . . . remand to the Secretary for further development of the

evidence” is generally appropriate. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980).

This court cannot conclude that “substantial evidence on the record as a whole indicates

that the [plaintiff] is disabled[,]” and thus, I cannot recommend a remand solely for the

determination of benefits. See Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996).

WHEREFORE, based on the findings above, it is

ORDERED, that the decision of the Commissioner be REVERSED and this

case REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for a proper

1 On remand, the ALJ should reconsider those portions of Dr. Thompson’s opinion that address

plaintiff’s emotional stability in the workplace. (T. 588). The ALJ should also consider, on remand,

whether the testimony of a vocational expert is required because plaintiff’s nonexertional mental

impairments “significantly limit the range of work permitted by his exertional limitations.” Bapp v.

Bowen, 802 F.2d 601, 605 (2d Cir. 1986). See, e.g., Chaparro v. Colvin, 156 F. Supp. 3d 517, 538-39

(S.D.N.Y. 2016) (“courts in this district consistently have found it to be reversible error for ALJs to

rely solely on the Grids when a plaintiff has moderate psychiatric limitations resulting in nonexertional

limitations”) (collecting cases); Michael F. D. v. Saul, No. 3:19-CV-600 (BKS), 2020 WL 5742704, at

*10 (N.D.N.Y. Sept. 25, 2020).

2 In addition, although the ALJ found that plaintiff’s irregular attendance at counseling sessions

further undermined Dr. Cerio’s opinion, the ALJ failed to consider the possibility that Plaintiff's history

of medication noncompliance was itself a manifestation of his illness. See Bishop o/b/o K.M.B. v.

Comm'r of Soc. Sec., No. 1:16-CV-1190 (GTS), 2017 WL 4512163, at *8 (N.D.N.Y. Oct. 10, 2017)

(“[W]illful non-compliance with psychiatric medications and treatment . . . could reasonably support a

fairly significant deficit in [plaintiff's] self-care abilities.”).

evaluation of the medical and other evidence, an appropriate determination of

plaintiffs residual functional capacity, and other further proceedings, consistent with

this Memorandum-Decision and Order, and it is

ORDERED, that the Clerk enter judgment for PLAINTIFF.

Dated: February 22, 2021 4 ( nw) RB , le

Andrew T. Baxter

U.S. Magistrate Judge

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