# Wisner v. O'Malley

> District Court, N.D. New York · March 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10316528

## Case

- **Court:** District Court, N.D. New York
- **Decided:** March 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10316528

## How later opinions describe it (automated extraction)

- explaining that, in determining whether an ALJ’s error is harmless, “the question becomes whether ‘a searching review of the record . . . assure[s the reviewing court] . . . that the substance of the [regulation] was not traversed”
- finding harmless error where the ALJ failed to consider a physician’s report, because that evidence was “largely identical” to a prior report” issued by “the same doctor, which the ALJ did consider’

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

TYLER W.,
Plaintiff,
V.
No. 3:22-CV-01345
5 COMMISSIONER OF SOCIAL SECURITY, (CFH)

Defendant.

APPEARANCES: OF COUNSEL:
Lachman & Gorton PETER A. GORTON, ESQ.
P.O. Box 89
1500 East Main Street
Endicott, New York 13760
| Attorney for plaintiff
Social Security Administration GEOFFREY M. PETERS, ESQ.
6401 Security Boulevard
Baltimore, Maryland 21235
Attorney for defendant
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION AND ORDER"
Tyler W.? (“plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) seeking
review of a decision by the Commissioner of Social Security (“the Commissioner’)
denying his application for child insurance benefits and supplemental security income.

Parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. § 636(c),
Fed. R. Civ. P. 73, L.R. 72.2(b), L.R. 72.3(b), and General Order 18. See Dkt. No. 7.
2 In accordance with guidance from the Committee on Court Administration and Case Management of the
Judicial Conference of the United States, which was adopted by the Northern District of New York in 2018
to better protect personal and medical information of non-governmental parties, this Memorandum-
Decision and Order will identify plaintiff's last name by initial only.

See Dkt. No. 1. Plaintiff seeks to “be found to be disabled” or, in the alternative, remand
for further proceedings. Dkt. No. 10. The Commissioner opposes the motion. See DKt.
No. 11. For the following reasons, plaintiff's motion is granted, and the Commissioner’s
decision is reversed and remanded for further proceedings.

° I. Background
On October 9, 2019, plaintiff filed a Title Il application for child’s insurance
benefits and for supplemental security income. See T. at 13, 85, 398-407.° Plaintiff
alleged a disability onset date of September 2, 2018. See id. at 399. The Social
Security Administration (“SSA”) denied plaintiff's claim on December 23, 2019. See id.
at 175-91. Plaintiff sought reconsideration of the decision, see id. at 192-95, 198, and
m| his claim was again denied May 1, 2020. See id. at 199-217. Plaintiff requested a
hearing, see id. at 224-32, and a hearing was held before Administrative Law Judge
(“ALJ”) Robyn L. Hoffman on December 17, 2020. See id. at 36-53. On April 13, 2021,
the ALJ issued an unfavorable decision. See id. at 147-62. Plaintiff timely filed a
request for review by the Appeals Council. See id. at 281-85. The Appeals Council
vacated the decision and remanded the case to the ALJ for further proceedings,
| Specifically further consideration of plaintiff's mental and pulmonary limitations. See id.
at 170-71. ALJ Hoffman held a second hearing on December 9, 2021, and continued
on December 22, 2021. See id. at 54-84. On January 14, 2020, the ALJ issued an
unfavorable decision. See id. at 10-27. On October 27, 2022, the Appeals Council

followed by a number refers to the pages of the administrative transcript filed by the Commissioner.
See Dkt. No. 8. Citations to the administrative transcript refer to the pagination in the bottom, right-hand
corner of the page.

denied plaintiff's request for review of the ALJ’s decision. See id. at 1-3. Plaintiff timely
commenced this action on December 14, 2022. See Compl.

ll. Legal Standards
A. Standard of Review
° In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),
1388(c)(3); Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990). Rather, the Commissioner's determination will only be reversed if the correct
legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 985-86 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d
m|464, 467 (2d Cir. 1982). Substantial evidence is “more than a mere scintilla,” meaning
that in the record one can find “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d
Cir. 2004) (per curiam) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
citations omitted)). The substantial evidence standard is “a very deferential standard of
review ... . [This] means once an ALJ finds facts, we can reject [them] only if a
| reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin..,
Comm’'r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (citation, emphasis, and internal
quotations marks omitted). Where there is reasonable doubt as to whether the
Commissioner applied the proper legal standards, the decision should not be affirmed
even though the ultimate conclusion is arguably supported by substantial evidence.
See Martone v. Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson, 817

F.2d at 986). However, if the correct legal standards were applied and the ALJ’s finding
is supported by substantial evidence, such finding must be sustained “even where
substantial evidence may support the plaintiff's position and despite that the court’s
independent analysis of the evidence may differ from the [Commissioner’s].” Rosado v.
Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citation omitted).
B. Determination of Disability
“Every individual who is under a disability shall be entitled to a disability . . .
benefit... .” 42 U.S.C. § 423(a)(1)(E). Disability is defined as the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical or
mental impairment. . . which has lasted or can be expected to last for a continuous
period of not less than 12 months[.]” Id. § 423(d)(1)(A). A medically-determinable
m| impairment is an affliction that is so severe that it renders an individual unable to
continue with his or her previous work or any other employment that may be available to
him or her based upon age, education, and work experience. See id. § 423(d)(2)(A).
Such an impairment must be supported by “medically acceptable clinical and laboratory
diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is
“based on objective medical facts, diagnoses[,] or medical opinions inferable from [the]
facts, subjective complaints of pain or disability, and educational background, age, and
work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3
(S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
1983)).
The Second Circuit employs a five-step analysis, based on 20 C.F.R.
§ 404.1520, to determine whether an individual is entitled to disability benefits:

First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
lf he [or she] is not, the [Commissioner] next considers
whether the claimant has a “severe impairment” which
significantly limits his [or her] 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 is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner] will consider him [or her] disabled without
considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a
claimant who is afflicted with a “listed” impairment is unable
to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant's severe
impairment, he [or she] has the residual functional capacity
to perform his [or her] past work.
I
Finally, if the claimant is unable to perform his [or her] past
work, the [Commissioner] then determines whether there is
other work which the claimant could perform.
Berry, 675 F.2d at 467 (spacing added). “If at any step a finding of disability or non-
disability can be made, the SSA will not review the claim further.” Barnhart v. Thomas,
540 U.S. 20, 24 (2003). The plaintiff bears the initial burden of proof to establish each
of the first four steps. See DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998)

(citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden
shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful
employment somewhere. ld. (citing Berry, 675 F.2d at 467).

lll. The ALJ’s Decision

Applying the five-step disability sequential evaluation, the ALJ first determined
that plaintiff “had not attained age 22 as of September 2, 2018, the alleged onset date”
and he “ha[d] not engaged in substantial gainful activity since September 2, 2018[.]’ T.
at 16. At step two, the ALJ found that plaintiff “na[d] the following severe impairments:
cerebral palsy, asthma, central sleep apnea, and anxiety disorder[.]” Id. At step three,
| the ALJ determined that plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1. See id. at 17-20. Before reaching step
four, the ALJ concluded that plaintiff retained the residual functional capacity (“RFC”) to
perform a range of light work as defined in 20 C.F.R.
404.1567(b) and 416.967(b). Specifically, [plaintiff can]
occasionally lift and carry twenty pounds; frequently lift and
carry ten pounds; sit for six hours; and stand or walk for six
hours, all in an eight-hour workday with normal breaks. He
should avoid exposure to excessive amounts of respiratory
irritants such as dust, odors, fumes, gases, extreme hot and
cold temperatures, wetness, and humidity. [Plaintiff] should
work at simple, routine, and repetitive tasks. He should work
in a low stress job, defined as occasional decision-making,
occasional judgment required, and occasional changes in
the work setting. [Plaintiff] should work at goal-oriented
work, rather than production pace rate work.
Id. at 20. At step four, the ALJ determined that plaintiff did not have any past relevant
m|work. See id. at 25. At step five, the ALJ concluded that “considering [plaintiff]’s age,
education, work experience, and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that [plaintiff] can perform[.]’ Id. Thus, the
ALJ determined that plaintiff had “not been under a disability, as defined in the Social
Security Act, from September 2, 2018, through the date of this decision[.]” Id. at 27.

IV. Discussion
A. The Parties’ Arguments‘
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence.
See Dkt. No. 10 at 3. Specifically, plaintiff contends that the ALJ committed reversible
error by failing to properly evaluate the medical opinion evidence in the record. See id.
| at 18-28. Plaintiff also asserts that the ALJ's RFC is not supported by substantial
evidence, as the ALJ “fail[ed] to properly account for [his] limitations to staying on task
and maintaining acceptable levels of work pace on account of the combination of his
muscle fatigue and slow processing speed, both of which [are] caused by his cerebral
palsy.” Id. at 3.
The Commissioner argues that the “ALJ properly evaluated the medical opinions,
| [prior administrative medical findings (“PAMFs”)], and other non-opinion statements of
record.” Dkt. No. 11 at 15. The Commissioner also asserts that “substantial evidence
supports the RFC, which does not include off-task behavior limitations.” Id. at 5.
B. The ALJ’s Evaluation of Medical Opinions
Plaintiff contends that the ALJ erred in her assessment of the opinion evidence
offered by school psychologist Angela Harvey (T. at 556-64); Dr. Christopher Yanusas
m|(T. at 936-40); therapist Jill Van Pelt (T. at 886-918); nurse practitioner Doreen Yirenchi
(T. at 609-10); state agency evaluators Dr. Sandra Juriga (T. at 95-96, 108-09) and Dr.
Tammy Inman (T. at 126-27, 142-43); and state agency consultants Dr. Syed Ahmed
(T. at 93-94, 106-07) and Dr. Michael Kirsch (T. at 123-25, 139-41). See Dkt. No. 10 at
18-28.

4 The Court's citations to the parties’ briefs refer to the pagination generated by CM/ECF, located in the
header of each page.

1. Angela Harvey, MS/CAS
On October 22, 2013, Angela Harvey, plaintiff's school psychologist, conducted a
psychological evaluation to determine plaintiff's “levels of functioning as well as his
educational needs.” T. at 556-64. Following the evaluation, Ms. Harvey issued a nine-
page “Confidential Psychological Report” that includes background information related
“Ito plaintiff's intellectual functioning; a summary of previous assessments he received; a
summary of his social history; notes from an informal classroom observation, a student
interview, and a teacher interview; as well as an assessment of plaintiff's cognitive,
academic, and behavioral abilities. See id. As relevant here, Ms. Harvey assessed
plaintiff's cognitive abilities using the Woodcock Johnson Tests of Cognitive Abilities —
Third Edition (WJ-II| Cog). See id. at 559-60. Plaintiff scored “very low’ on the
Processing Speed index, which “measures the ability to complete simple tasks quickly
and accurately,” and was in the 0.4" percentile. Id. at 560. Ms. Harvey concluded that
plaintiff “had the most difficulty with tasks that measured his processing speed,” and he
“works much slower than other students his age.” Id. at 564. Ms. Harvey also noted
that plaintiff “needs extra time to complete tasks due to his low processing speed
abilities.” Id.
Plaintiff argues that the ALJ erred by failing to acknowledge Ms. Harvey’s
medical opinion. See Dkt. No. 10 at 19-20. The Commissioner concedes that the ALJ
failed to address this evidence but argues that “the ALJ had no requirement to evaluate
[her] statement because it is not a medical opinion.” Dkt. No. 11 at 16. Specifically, the
Commissioner asserts that “a medical opinion must outline work-related limitations not
school limitations.” Id. The Commissioner further argues that, even if the ALJ erred in

not discussing the report, such error is harmless because it is “essentially duplicative of
other evidence.” Id. at 16-17.
The Court disagrees with the Commissioner's characterization of Ms. Harvey’s
report. “Although the Commissioner has primacy in weighing the evidence, the ALJ is
required to follow the Social Security regulations in doing so.” Kasey G. v. Comm’ of
| Soc. Sec., 542 F. Supp. 3d 190, 195 (W.D.N.Y. 2021). “In assessing a disability claim,
an ALJ must consider and weigh the various medical opinions of record.” Shillenn v.
Comm’r of Soc. Sec., No. 1:17-CV-01225 (MAT), 2019 WL 5586982, at *3 (W.D.N.Y.
Oct. 30, 2019); see also Pike v. Kijakazi, No. 23-CV-583-A, 2024 WL 554300, at *5
(W.D.N.Y. Feb. 12, 2024) (“Under the SSA’ new regulations, ALJs are required to
evaluate medical opinions[.]”) (citing 20 C.F.R. § 404.1520c(c)). “A medical opinion is a
Statement from a medical source about what [the plaintiff] can still do despite [his or her]
impairment(s) and whether [he or she] ha[s] one or more impairment-related limitations
or restrictions” in his or her ability to perform physical, mental, or other demands of work
activities. 20 C.F.R. § 404.1513(a)(2). The regulations define a medical source to
include “an individual who is certified by a State as a speech-language pathologist or a
school psychologist and acting within the scope of practice permitted under State or
Federal law.” 20 C.F.R. § 404.1502(d); see 20 C.F.R. § 416.902(i).
Ms. Harvey was plaintiff's school psychologist, and, therefore, a medical source.
See 20 C.F.R. §§ 404.1502(d), 416.902(i). Accordingly, the ALJ was required to weigh
and evaluate Ms. Harvey's statement as a medical opinion. See Vilma S. v. Comm’ of
Soc. Sec., No. 1:23-CV-00025 (GRJ), 2024 WL 515259, at *3 (S.D.N.Y. Feb. 9, 2024)
(“The ALJ is required to ‘articulate how [he or she] considered the medical opinions’ and

state ‘how persuasive’ he or she finds each opinion, with a specific explanation provided
as to the consistency and supportability factors.”) (quoting 20 C.F.R. § 404.1520c(b)(2));
see also Joseph G. v. Comm’r of Soc. Sec., No. 1:21-CV-00046 (DB), 2024 WL
641264, at *4-6 (W.D.N.Y. Feb. 15, 2024) (determining that the ALJ erred when she
failed to fully consider the plaintiff's educational records, including a report from the
®| plaintiff's school psychologist).
Contrary to the Commissioner’s contentions, Ms. Harvey's evaluation of plaintiff's
“school limitations” is relevant to his ability to perform work-related functions. Under the
regulations, the “mental demands of work activities” includes an individual's ability to
“maintain[ ] concentration, persistence, or pace.” 20 C.F.R. § 404.1513(a)(2)(ii). As
discussed, Ms. Harvey opined that plaintiff “works much slower than other students his
and he “needs extra time to complete tasks due to his low processing speed
abilities.” T. at 564. In doing so, Ms. Harvey provided an opinion on plaintiff's ability to
“maintain[ ] concentration, persistence, or pace,” which is directly relevant to his ability
“to perform mental demands of work activities.” 20 C.F.R. § 404.1513(a)(2)(ii).
Further, the SSA “has promulgated specific guidance with respect to the
evaluation of disability in young adults, who it defines as ‘people between the ages of 18
| to approximately 25.” Joseph G., 2024 WL 641264, at *5 (quoting SSR 11-2p, 2011
WL 4055665 (Sept. 12, 2011)). Specifically, the SSA has “address[ed] the task of
extrapolating a young adult’s work-related limitations from his performance in school.”
Id. Social Security Ruling (“SSR”) 11-2p provides that “evidence about a young adult’s
functioning from school programs, including IEPs[,] . .. may indicate how well a young
adult can use his or her physical or mental abilities to perform work activities.” SSR 11-

10

2p, 2011 WL 4055665 at *7. One “example[ ] of school-reported difficulties [that] might
indicate difficulty with work activities” is an individual's “[d]ifficulty with maintaining
attention for extended periods in a classroom.” Id. “SSR 11-2p is binding on ALJs.”
E.M. v. Kijakazi, 591 F. Supp. 3d 595, 621 (N.D. Cal. 2022) (citing Heckler v. Edwards,
465 U.S. 870, 873 n.3 (1984) (stating that Social Security Rulings are binding on all
decisionmakers), Ka’deef M. v. Comm'r of Soc. Sec., No. 3:20-CV-787 (DJS),
2021 WL 2952801, at *5-6 (N.D.N.Y. July 14, 2021) (same), and Samuel v. Comm’r of
Soc. Sec., No. 14-CV-4634 (PKC), 2015 WL 5774850, at *14 (E.D.N.Y. Sept. 30, 2015)
(remanding where the ALJ failed to review school records, including school psychologist
records, in conflict with SSR 11-2p)) (additional citations omitted).
It is unclear how the ALJ considered Ms. Harvey’s opinion in rendering her
decision. Other than two citations to the evaluation’s exhibit number 3F, the ALJ’s
decision does not mention Ms. Harvey's psychological evaluation, nor does it include
the required consistency and supportability analysis. See T. at 19 (“The [plaintiff]
exhibited processing speed deficits, consistent with both school testing, as well as more
recent evaluation”); see also T. at 22 (“With respect to the mental conditions, the
[plaintiff]’s school records show difficulty with focus and follow through, as well as slow
m| processing speed”). Specifically, the ALJ does not expressly adopt or reject Ms.
Harvey’s evaluation of plaintiff's intellectual functioning, nor explain the reasons for
adopting or rejecting Ms. Harvey’s evaluation. See Robert R. v. Kijakazi, No. 20-CV-
1892L, 2022 WL 1607022, at *3 (W.D.N.Y. May 20, 2022) (“[T]he ALJ’s failure to
consider or even mention [medical] opinions concerning [the] plaintiff's mental
[functioning]—suggesting that he may have overlooked them entirely—constitutes

11

reversible error [because the] plaintiff was entitled to consideration of [the]
assessments, and an explanation for the ALJ’s rejection of the limitations they
described.”); see also Kasey G., 542 F. Supp. 3d at 195 (“[T]he ALJ is required to
consider [all medical opinion] evidence in assessing the RFC, including by explaining
[her] reasons for either adopting or rejecting [the medical opinion evidence].”).°
o Moreover, the ALJ's failure to properly evaluate Ms. Harvey's opinion is not
harmless error. See, e.g., Johnathan W. v. Saul, No. 6:19-CV-1242 (CFH), 2021 WL
1163632, at *7 (N.D.N.Y. Mar. 26, 2021) (finding that the ALJ’s failure to articulate how
persuasive he found a medical opinion, and his failure to explicitly explain the
supportability and consistency factors, was not harmless error because the opinion
could have impacted the ALJ’s analysis in a meaningful way); see also Estrella v.
m| Berryhill, 925 F.3d 90, 96 (2d Cir. 2019) (explaining that, in determining whether an
ALJ’s error is harmless, “the question becomes whether ‘a searching review of the
record . . . assure[s the reviewing court] . . . that the substance of the [regulation] was
not traversed”) (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)). “An
ALJ’s failure to properly consider a medical opinion is harmless error where the medical
opinion is ‘essentially duplicative’ of other evidence, or is not ‘significantly more
1

5 The Commissioner also asserts that Ms. Harvey's opinion is “many years removed from the relevant
period” and is, therefore, “not probative of [p]laintiffs functioning[.]” Dkt. No. 11 at 16. However, as
plaintiff argues, “[t]his is an improper post hoc argument not considered by the ALJ. This may go to
persuasiveness but is not a ground to fail to evaluate the opinion at all.” Dkt. No. 12 at 3 (citing Snell v.
Apfel, 177 F.3d 128, 134 (2d Cir. 1999)). Moreover, this argument is “contrary to the Commissioner's
guidance in SSR 11-2p.” Joseph G., 2024 WL 641264, at *6 (rejecting the Commissioner’s argument that
“the ALJ was entitled to disregard [the school psychologist]’s opinion because it was dated several
months before [the p]laintiff's alleged onset date”). Regardless of plaintiff's alleged onset date, given “the
lack of any significant work experience from which to draw comparisons, school records may provide the
most comprehensive insight into his level of functioning . . . directly relevant to the ALJ’s inquiry into
[plaintiff's ability to maintain attention and concentration” in the workplace. Ka’deef M., 2021 WL
2952801, at *6.
12

favorable’ to [the pllaintiff than other evidence considered by the ALJ, or was otherwise
consistent with the ALJ findings.” Tammy T. v. Kijakazi, No. 5:21-CV-1, 2022 WL
71995, at *13 (D. Vt. Jan. 7, 2022) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.
2010)); but see Kelly S. v. Kijakazi, No. 3:20-CV-1232 (DJS), 2022 WL 279555, at *5
(N.D.N.Y. Jan. 31, 2022) (“[T]he medical opinion . . . , if accepted, would have materially
° changed the RFC and likely affected the ability of [the p]laintiff to find other work.”);
Holly S. v. Comm’r of Soc. Sec., No. 3:20-CV-597 (MAD/DEP), 2022 WL 580446, at “6
(N.D.N.Y. Feb. 25, 2022) (“Several [more restrictive] findings occurred across multiple
medical opinions. It seems entirely plausible to this Court that any one of these
limitations could have more than a negligible impact on [the plaintiff]’s ability to perform
the full range of work.”) (internal quotation marks and citations omitted).
First, Ms. Harvey’s medical opinion is not “essentially duplicative of other
evidence.” Dkt. No. 11 at 16. The Second Circuit has found medical evidence to be
duplicative when the ALJ has considered a “largely identical” report issued by “the same
doctor.” Zabala, 595 F.3d at 409-10 (finding harmless error where the ALJ failed to
consider a physician’s report, because that evidence was “largely identical” to a prior
report” issued by “the same doctor, which the ALJ did consider’). Here, the record does
not contain a second report from Ms. Harvey. See Lisa B. v. Comm’r of Soc. Sec., No.
5:21-CV-493 (CFH), 2022 WL 1473277, at *7 (N.D.N.Y. May 10, 2022) (stating there
was harmless error where the ALJ failed to address a 2018 medical opinion but
analyzed a 2019 medical opinion from the same doctor, because the opinions, though
not identical, were “similar enough”). Further, Ms. Harvey's opinion does not provide
“duplicative information” already before the ALJ, as there is no other evaluation in the

13

record dated from the same time period or using the same assessment techniques or
standards. Cf. Ashley M. v. Comm’r of Soc. Sec., No. 2:20-CV-195, 2023 WL 3033283,
at *13 (D. Vt. Apr. 21, 2023) (concluding that medical evidence was “duplicative of
information already before the ALJ” where the evidence described the plaintiff's
diagnoses during a time period that was “well documented in the other records
o previously provided to the ALJ”).
Second, Ms. Harvey’s opinion may be “significantly more favorable’ to plaintiff,
given that her evaluation of plaintiff's mental functioning provides more restrictive
limitations regarding his ability to concentrate, persist, or maintain pace. Zabala, 595
F.3d at 409 (citing Snell v. Apfel, 177 F.3d 128, 130, 134 (2d Cir. 1999)); see Gonzalez
v. Colvin, No. 15-CV-6216, 2016 WL 5793425, at *8 (W.D.N.Y. Sept. 30, 2016)
(remanding case for the ALJ's failure to “properly evaluate” a school psychologist’s
opinion, where the opinion was “significantly more restrictive” than the other medical
evidence in the record). Specifically, Ms. Harvey opines that plaintiff “need[s] extra time
to get his work done” and he “works much slower than other students his age.” T. at
562. Ms. Harvey supported her opinion with the results from her extensive testing of
plaintiff's cognitive, academic, and behavioral abilities, using the Woodcock Johnson
m| Tests of Cognitive Abilities — Third Edition (WJ-III Cog), the Woodcock Johnson Tests of
Achievement — Third Edition (W4J-IIl Ach), and the Behavior Assessment System for
Children — Second Edition (BASC-2). T. at 556-63. Her opinion is not “similar enough”
to other opinions in the record that the ALJ explicitly considered in rendering her
decision, as these other opinions used different assessment methods, such as Dr.
Yanusas using the Wechsler Adult Intelligence Scale-IV (WAIS-IV). Lisa B., 2022 WL

14

1473277, at *7; T. at 937. Moreover, Ms. Harvey’s testing put plaintiff in the 0.4
percentile for Processing Speed Index, yet Dr. Yanusas’s testing put plaintiff in the 4"
percentile for Processing Speed Index. Compare T. at 559, with T. at 937. Thus, Ms.
Harvey’s opinion “might have affected the ALJ's decision insofar as” she indicates that
plaintiff is not capable of maintaining pace or staying on task. Kim E. v. Comm’r of Soc.
| Sec., No. 1:20-CV-01784 (CJS), 2022 WL 797462, at *8 (W.D.N.Y. Mar. 16, 2022)
(remanding where there was “excluded evidence contain[ing] opinions from [the
pllaintiff's doctors concerning her work-related functional limitations which [were] not
merely duplicative of other evidence and which might have affected the ALJ’s
decision”); see T. at 564 (“[Plaintiff] needs extra time to complete tasks due to his low
processing speed abilities, in order to allow for refocusing and completion of difficult
m| work, especially when it requires physical effort.”); see also Dkt. No. 11 at 5
(acknowledging that the ALJ’s RFC determination does not include limitations for
plaintiff's off-task behavior).
Accordingly, “remand is required so that the ALJ may consider the opinion
offered by [Ms. Harvey], as well as its impact on the disability determination.” Kasey G.,
542 F. Supp. 3d at 196; see also Brandy Marie T. A. v. Comm'r of Soc. Sec., No. 6:18-
| CV-0510 (DEP), 2019 WL 2264977, at *5 (N.D.N.Y. May 28, 2019) (“If it would affect
work, and there was nothing in the RFC that addressed this, it’s not harmless error.”).
2. Christopher Yanusas, Ph.D.
In May and June 2019, Dr. Christopher Yanusas performed a neuropsychological
evaluation of plaintiff. See T. at 934-40. Dr. Yanusas administered “multiple behavioral
measures” to assess plaintiff's “psychosocial and emotional functioning.” Id. at 936.

15

Specifically, Dr. Yanusas evaluated plaintiff using the Wechsler Adult Intelligence Scale
— (WAIS-IV) and found that plaintiff's performance on the Working Memory Index “fell
in the below average range” (in the 13" percentile) and his performance on the
Processing Speed Index “fell in the well below average range” (in the 4" percentile). Id.
at 937. Dr. Yanusas noted that plaintiff's “processing speed was poor for tasks
emphasizing clerical speed and accuracy and sustained attention.” Id. Dr. Yanusas
concluded that plaintiff's “profile indicated the presence of executive functioning deficits
in the areas of working memory, divided attention, and most prominently, information
processing speed . . . [These] deficits suggest he would require a highly structured
environment to complete complex tasks including receiving assistance.” Id. at 939-40.
The ALJ cited to Dr. Yanusas’ evaluation and noted that he “provided no specific
functional limits, but identified deficits in the areas of working memory, divided attention,
and information processing speed. Dr. Yanusas wrote that [plaintiff]’s deficits suggest
that [plaintiff] would require a highly structured environment to complete complex tasks.”
T. at 24-25. The ALJ “considered Dr. Yanusas’s examination findings and
assessments, and incorporated the same into the ‘paragraph B’ criteria and the adopted
residual functional capacity.” Id. at 25.
Plaintiff argues that the ALJ erred because she “never explained how persuasive
she found [Dr. Yanusas’] opinion to be” and she “also engaged in no discussion
whatsoever of the supportability or consistency factors.” Dkt. No. 10 at 20. The
Commissioner asserts that, “[a]lthough the ALJ did not make a specific ‘persuasiveness’
finding . . . , the ALJ implicitly found Dr. Yanusas’ opinion persuasive by incorporating it
into the RFC.” Dkt. No. 11 at 17. The Commissioner further contends that “the ALJ had

16

adopted Dr. Yanusas’ opinion after considering the regulatory factors of supportability
and consistency.” Id. at 18.
An ALJ “must consider all medical opinions and ‘evaluate the[ir] persuasiveness’
based on their supportability and consistency, the author's relationship with the claimant
and specialization, and ‘other factors.” Cassandra G. v. Comm’r of Soc. Sec., 626 F.
Supp. 3d 553, 564 (N.D.N.Y. 2022) (quoting 20 C.F.R. § 416.920c(a)-(c)); see also 20
C.F.R. § 404.1520c(a)-(c). “Although the ALJ is not required to assign a specific
‘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. (quoting § 416.920c(a) and (b)(1)); see also 20 C.F.R. § 404.1520c(a),
(b)(1). The ALJ must expressly “explain how [he or she] considered the supportability
m}and consistency factors” for a medical opinion. 20 C.F.R. §§ 404.1520c(b)(2),
416.920c(b)(2). “[S]upportability” means 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), the more persuasive
the medical opinions or prior administrative medical finding(s) will be.” Id.
§§ 404.1520c(c)(1), 416.920c(c)(1). “[C]onsistency” means that “[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.
§§ 404.1520c(c)(2), 416.920c(c)(2). “A conclusory analysis of the [relevant] factors
‘precludes the Court from undertaking meaningful review’ of the ALJ’s decision. Indeed,
‘[cJourts in this Circuit have remanded when the ALJ failed to address either

17

supportability or consistency.” Annjeanette B. v. Kijakazi, No. 3:22-CV-198 (ATB),
2023 WL 3040663, at *8 (N.D.N.Y. Apr. 21, 2023) (citations omitted).
“Courts frequently remand an ALJ’s decision when it ignores or mischaracterizes
medical evidence or cherry-picks evidence that supports his [or her] RFC determination
while ignoring other evidence to the contrary.” Jackson v. Kijakazi, 588 F. Supp. 3d
558, 585 (S.D.N.Y. 2022) (citing Velasquez v. Kijakazi, No. 19-CV-9303 (DF), 2021 WL
4392986, at *27 (S.D.N.Y. Sept. 24, 2021) (collecting cases)). As the Commissioner
states, “it is not the Court's function to reweigh the evidence that was before the ALJ.”
Mary M. v. Comm'r of Soc. Sec., No. 8:20-CV-1594 (TWD), 2022 WL 823850, at *11
(N.D.N.Y. Mar. 17, 2022) (citing Vincent v. Shalala, 830 F. Supp. 126, 133 (N.D.N.Y.
1993)); see also Dkt. No. 11 at 12, 14, 21. “However, the ALJ is required to explain
m| [her] reasoning to a sufficient degree such that the Court can, at the very least, glean
[her] rationale in making the RFC determination.” Malia Ann B. v. Comm'r of Soc. Sec.,
No. 5:21-CV-1362 (AMN/CFH), 2023 WL 2838054, at *5 (N.D.N.Y. Feb. 23, 2023)
(citing Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013) (“An ALJ need not recite
every piece of evidence that contributed to the decision, so long as the record permits
us to glean the rationale of an ALJ's decision[.]’)), report and recommendation adopted,
m| 2023 WL 2623865 (N.D.N.Y. Mar. 24, 2023).
The Court does not know how persuasive the ALJ found Dr. Yanusas’ opinion.
“It is an ALJ’s affirmative duty to ‘articulate in [a] determination or decision how
persuasive [she] find[s] all of the medical opinions . . . in [the] case record.” Glenn G. v.
Kijakazi, No. 3:22-CV-824 (RMS), 2023 WL 2477501, at *13 (D. Conn. Mar. 13, 2023)
(citing 20 C.F.R. § 404.1520c(b)). Failure to do so “may warrant remand on its own.”

18

Id. (citations omitted); see Jacqueline L. v. Comm’r of Soc. Sec., 515 F. Supp. 3d 2, 8
(W.D.N.Y. 2021) (“The ALJ must articulate his consideration of the medical opinion
evidence, including how persuasive he finds the medical opinions in the case record”)
(citing 20 C.F.R. §§ 404.1520c(b), 416.920c(b)); see also Rivera v. Comm’r of the Soc.
Sec. Admin., No. 19-CV-4630 (LUL/BCM), 2020 WL 8167136, at *22 (S.D.N.Y. Dec. 30,
° 2020) (remanding for the ALJ to “reevaluate the persuasiveness assigned to the
opinion evidence of record and explicitly discuss both the supportability and the
consistency of the [medical] opinions”), report and recommendation adopted sub nom.
Rivera v. Comm’r of Soc. Sec. Admin., 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021).
Further, the ALJ’s analysis makes no mention of the supportability or consistency
factors as to Dr. Yanusas’ opinion. See T. at 24-25; see also Febus v. Kijakazi, No. 20-
m| CV-8314 (OTW), 2022 WL 3013106, at *2 (S.D.N.Y. July 29, 2022) (“ALJs must
consider all medical opinions and determine their respective persuasiveness
considering: supportability; consistency; relationship of the medical source to the
claimant; specialization; and ‘other factors.”) (quoting 20 C.F.R. § 404.1520c(c)(1)-(5)).
As for supportability, the ALJ did not explicitly address whether Dr. Yanusas “provided
supporting explanations for his . . . opinion.” Loni S. v. Comm’r of Soc. Sec., No. 3:22-
| CV-805 (CFH), 2023 WL 4195887, at *14 (N.D.N.Y. June 27, 2023). Although the ALJ
noted that “Dr. Yanusas provided no specific functional limits” for his evaluation, the ALJ
provided no further explanation. T. at 24. Indeed, as plaintiff argues, it appears that Dr.
Yanusas “identified limitations to verbal working memory, sustained attention,
processing speed, accuracy, divided attention, shifting conceptual sets, sequential
planning, and conceptual flexibility[.]” Dkt. No. 10 at 21; see also T. at 937-39. Thus,

19

without further explanation, “the Court cannot ‘adequately “glean” how the ALJ weighed
the .. . supportability factor[ ].’” Glenn G., 2023 WL 2477501, at *13 (quoting Ricky L. v.
Comm'r of Soc. Sec., No. 20-CV-7102 (FPG), 2022 WL 2306965, at *3 (W.D.N.Y. June
27, 2022)).
As for consistency, the ALJ does not address “how well [Dr. Yanusas’ opinion] is
supported, or not supported, by the entire record.” Rua-Campusano v. Kijakazi, No. 20-
CV-7087 (GBD/SLC), 2021 WL 7287628, at *10 (S.D.N.Y. Dec. 10, 2021) (“Consistency
is an all-encompassing inquiry focused on how well a medical source is supported, or
not supported, by the entire record.”), report and recommendation adopted, 2022 WL
493390 (S.D.N.Y. Feb. 17, 2022). The Commissioner contends that the ALJ’s citations
to the record during her evaluation of the “paragraph B” criteria satisfies her obligation in
m|eValuating the consistency of Dr. Yanusas’ opinion. See Dkt. No. 11 at 18 (citing T. at
25). However, the Court disagrees. The ALJ did not articulate the consistency of Dr.
Yanusas’ findings such that this Court could “trace the path of [the ALJ]’s reasoning.”
Traci S. v. Kijakazi, No. 3:21-CV-01582 (VAB), 2023 WL 2552724, at *8 (D. Conn. Mar.
17, 2023) (“[T]he articulation requirements in [the new regulations] are intended to allow
a...reviewing court to trace the path of an adjudicator’s reasoning.”) (internal
quotations marks and citation omitted). Although the ALJ provided a summary of some
of Dr. Yanusas’ findings alongside other opinions in a different section of her decision
(T. at 19), the ALJ’s decision did not adequately consider the consistency factor relative
to Dr. Yanusas’ opinion. See Amber H. v. Saul, No. 3:20-CV-490 (ATB), 2021 WL
2076219, at *8 (N.D.N.Y. May 24, 2021) (“[T]he ALJ’s fleeting discussion of Dr.
Magurno’s opinion falls short of satisfying the articulation requirements contained in the

20

new regulations, especially considering the ALJ’s failure to discuss the extent to which
Dr. Magurno’s opinion was consistent with the other evidence of record, medical or
otherwise[.]”); see also Alexa J. M. v. Kijakazi, No. 5:22-CV-243 (BKS/ML), 2023 WL
4467124, at “4 (N.D.N.Y. July 11, 2023) (“[A]lthough the ALJ elsewhere in the decision
discussed NP McNally’s treatment notes, . . . that discussion does not elucidate how
| those treatment notes fail to support an opinion that [the p]laintiff would be off-task more
than twenty percent of an eight-hour workday or absent from work about four days per
month’).
Therefore, on remand, the ALJ should address the persuasiveness of Dr.
Yanusas’ opinion, along with the consistency and supportability factors.
3. Jill Van Pelt, LCSW-R
Plaintiff treated with therapist Jill Van Pelt, LCSW-R, between October 2020 and
November 2021. See T. at 886-918. The administrative transcript includes Ms. Van
Pelt’s appointment notes dated from October 19, 2020, to October 26, 2021; a mental
health assessment dated November 3, 2020; as well as a mental questionnaire dated
November 1, 2021. See T. at 886-90, 891-913, 916-18. In her appointment notes, Ms.
Van Pelt states that plaintiff says he has “difficulty putting actions together to achieve
| goals,” he experiences “fatigue” and “brain fog.” Id. at 899. She notes his report that he
previously worked a janitorial position at a grocery store, but this didn’t work out
because he “didn’t have the stamina to work there” and “his pace was too slow.” Id. at
893, 899, 907. After meeting with plaintiff regularly for approximately one year, Ms. Van
Pelt reported that plaintiff had: (1) a marked limitation in maintaining attention and
concentration; (2) an extreme limitation in performing activities within a schedule, being

21

punctual, and performing at a consistent pace; and (3) a marked limitation in responding
appropriately to ordinary stressors in a work setting with simple tasks.® See id. at 916
(noting that plaintiff “has difficulty and gets ‘stuck’ when he has to do multiple tasks[; he]
also has difficulty prioritizing tasks. It took longer for [him] to complete tasks at work, he
works at a slower pace”). Ms. Van Pelt described satisfactory or moderately-impaired’
abilities in other areas of mental functioning, such as getting along with co-workers and
interacting appropriately with the public. See id. Ms. Van Pelt opined that, due to the
limitations she has observed, plaintiff would likely be off task more than 33% of the
workday. See id. at 917. Ms. Van Pelt explained that plaintiff “wasn’t able to complete
tasks due to slower pace [and he] couldn't finish a task and then had to go do another
task.” Id.
The ALJ found that “Ms. Van Pelt’s predictions of time spent off-task and likely
workplace attendance are both poorly supported and speculative.” T. at 25.
Specifically, the ALJ noted that, although “Ms. Van Pelt estimated that [plaintiff] would
likely be off-task more than 33% of a typical day, and absent from work one day per
month[, s]uch pronounced restrictions appear to be based primarily on [plaintiff]’s self-
reports, as Ms. Van Pelt’s treatment notes reflect no such difficulties.” Id.
Plaintiff argues that the ALJ erred by failing “to state how persuasive she found
[Ms. Van Pelt’s] opinion” and failing to properly “address the supportability or

8 Ms. Van Pelt used a check-box form, defining a “marked limitation” as “a serious limitation in this areal;
t]here is a substantial loss in the ability to effectively function the loss would be greated than 33%” and
“extreme limitation” as “a major limitation in this area[; t]here is no or very little useful ability to function in
this area.” T. at 916.
7 “Moderate” limitation is defined in the check-box form as “more than slight but less than a serious
limitation. The Individual is still able to function satisfactorily for certain portion of the day and/or perform
the tasks satisfactorily on some of the occasions. The approximate of loss would be more than 20% for
the particular activity but less than 1/3 of the day. (33%).” T. at 916.
22

consistency factors.” Dkt. No. 10 at 21-22. Plaintiff acknowledges that the ALJ
determined Ms. Van Pelt’s findings were “poorly supported and speculative,” but argues
that “such conclusory statements without explanation or reference to the medical
evidence do not fulfill the ALJ’s obligations to explain how she considered the
supportability and consistency factors” of Ms. Van Pelt’s opinion. Id. at 21. The
Commissioner asserts that the ALJ did not err, as she “clearly rejected [Ms.] Van Pelt’s
opinion” and did so “after examining both supportability and consistency.” Dkt. No. 11
at 19-20.
“[T]he ALJ’s conclusion [need] not perfectly correspond with any of the opinions
of medical sources cited in his [or her] decision, [and] he [or she i]s entitled to weigh all
of the evidence available to make an RFC finding that [i]s consistent with the record as
Whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (summary order). The
Court “defer[s] to the Commissioner’s resolution of conflicting evidence[.]’ Smith v.
Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018) (summary order) (citation and quotation
marks omitted). “Therefore, even if a plaintiff disagrees with the ALJ’s assessment of
opinion evidence and can point to evidence in the record to support his or her position,
‘whether there is substantial evidence supporting the [plaintiff's] view is not the question
rather, [the Court] must decide whether substantial evidence supports the ALJ’s
decision.” Elizabeth P. v. Comm'r of Soc. Sec., No. 3:20-CV-891 (CFH), 2022 WL
507367, at *4 (N.D.N.Y. Feb. 18, 2022) (quoting Bonet ex rel. T.B. v. Colvin, 523 F.
App’x 58, 59 (2d Cir. 2013) (summary order) (emphasis omitted)). The ALJ must not
“ignore evidence or cherry pick only the evidence from medical sources that support a
particular conclusion and ignore the contrary evidence” but “[t]he Court will not reweigh

23

the evidence that was before the ALJ.” April B. v. Saul, No. 8:18-CV-682 (DJS), 2019
WL 4736243, at *6 (N.D.N.Y. Sept. 27, 2019) (citations and internal quotation marks
omitted).
“District courts in the Second Circuit have reiterated . . . that an ALJ errs where
he or she summarily concludes that an opinion is unsupported by treatment notes or
inconsistent with the record.” Loni S., 2023 WL 4195887, at *15 (citing Stephanie F. v.
Kijakazi, No. 8:20-CV-1528 (BKS), 2022 WL 3355964, at *10 (N.D.N.Y. Aug. 15, 2022)
(“[T]he ALJ’s conclusory statement that [the provider’s] conclusions ‘are not consistent
with the overall medical evidence’ is not an adequate articulation of the consistency
factor.”), Annjeanette B., 2023 WL 3040663, at *8 (“The ALJ merely concludes that [the]
opinions regarding time off-task and absenteeism are ‘purely speculative,’ without
further explanation. However, the ALJ appears to ignore [one provider's] written
explanation for his opinion, attributing the amount of time plaintiff would be off-task and
absent to [the] plaintiff's limited mobility and concentration from her chronic back pain;
her pain and frequent bathroom trips due to Crohn’s Disease; her shortness of breath
and coughing due to asthma; and her difficulty concentrating and staying on task due to
her bipolar disorder. Likewise, [the other provider] cited to [the] plaintiff's symptoms
| Stemming from Crohn’s disease, chronic knee and back pain, and bipolar disorder as
support for her restrictive opinion concerning time off-task and absenteeism.”), and
Ayala v. Kijakazi, 620 F. Supp. 3d 6, 31 (S.D.N.Y. 2022) (“The ALJ’s assessment of the
supportability of [the] opinions is highly conclusory. The ALJ offered only that ‘[one]
opinion is supported by record review’ and that ‘[the other] opinion is supported by

24

examination.’ Such conclusory statements offer no insight into ‘how well [either doctor]
supported and explained their opinion,’ and are insufficient to withstand review.”)).
Here, the ALJ summarily concluded that Ms. Van Pelt’s opinion was “poorly
supported” and “speculative,” T. at 25, and “such conclusory statements are insufficient
to meet the articulation requirements of the regulations.” Loni S., 2023 WL 4195887, at
°/*46. The Court agrees with the Commissioner that the ALJ addressed the supportability
of Ms. Van Pelt’s opinion. See Dkt. No. 11 at 20; see also T. at 25 (“[Ms. Van Pelt’s]
pronounced restrictions appear to be based primarily on [plaintiff]’s self-reports.”);
Ashleigh L. v. Kijakazi, No. 3:22-CV-675 (SVN), 2023 WL 6357000, at *7 (D. Conn.
Sept. 29, 2023) (finding no error in the ALJ’s supportability assessment of a medical
opinion, which the ALJ found unsupported because it was based on the plaintiff's self-
m| reports instead of “objective medical findings”). However, the ALJ did not provide an
explanation as to the consistency of Ms. Van Pelt’s opinion with the “evidence from
other medical sources and nonmedical sources” in the record. 20 C.F.R.
§ 416.920c(c)(2); see Elizabeth P., 2022 WL 507367, at *10-14 (“However, although the
ALJ incorporated most of Dr. Khan’s limitations, she did not incorporate his time off task
or absenteeism limitation, claiming it to be ‘speculative’... Stating that a portion of an
| opinion is ‘speculative’ without reference to that provider's records or the record as a
whole does not explain the supportability or consistency of the opinion such that the
Court can glean the ALJ’s rationale.”); cf. Sandra D. v. Comm’r of Soc. Sec., No. 5:20-
CV-1067 (LEK/ATB), 2022 WL 344058, at *2, 6 n.1 (N.D.N.Y. Feb. 4, 2022) (finding no
error in the ALJ’s conclusion that a time off task limitation “was speculative and not
supported by any objective evidence[ ]” because it was “the only opinion to specifically

25

address off-task time” and “the record does address the issue, but conspicuously lacks
any mention of the necessity of greater limitation[.]’). As plaintiff argues, there is other
evidence in the record indicating limitations that could cause him to be off task during a
workday. See, e.g., T. at 430 (in school, plaintiff “worked at decreased speed at times
and required increased time to complete writing tasks”); T. at 564 (plaintiff “need[s] extra
time to get his work done” and “had the most difficulty with tasks that measured his
processing speed”); T. at 613 (plaintiff is “[p]ositive for the difficulty with concentration,
focus and memory’); T. at 937 (plaintiff has “diminished ability to hold information in
verbal working memory due to variable sustained attention.”). Although the ALJ may
have found Ms. Van Pelt’s opinion to be inconsistent with the other evidence in the
record, “the lack of discussion as to why the ALJ reached such a conclusion precludes
Meaningful review by this Court.” Annjeanette B., 2023 WL 3040663, at *8.
On remand, the ALJ should discuss how persuasive she considers Ms. Van
Pelt’s opinion, including the consistency factor.
4. Doreen Yirenchi, NP
Due to his “history of cerebral palsy and seizures,” plaintiff is routinely seen by
Neuro Medical Care Associates, PLLC. T. at 609. On August 7, 2018, plaintiff saw
Nurse Doreen Yirenchi, a provider at Neuro Medical Care. See id. at 608-09. Nurse
Yirenchi noted that plaintiff's central nervous system examination revealed that he was
alert and fully oriented, that his speech was clear, and his cranial nerves were intact.
See id. at 608. Nurse Yirenchi stated that plaintiff “brought in a paper asking if he is
able to work” and that she “completed the paper stating that he could work with some
limitation.” Id. The ALJ found Nurse Yirenchi’s opinion to be “somewhat persuasive,

26

but as the details of said limitations are not specified, this limits the persuasiveness of
her opinion.” Id. at 23.
Plaintiff argues that the ALJ (1) failed to address the consistency and
supportability factors, and (2) improperly relied on Nurse Yirenchi’s conclusion that
plaintiff “could work, with some limitations” because “statements whether someone can
or cannot work are ‘inherently neither valuable nor persuasive.” Dkt. No. 10 at 27
(quoting 20 C.F.R. § 404.1520b(c)(3)(i)).
Plaintiff is correct that “the ultimate conclusion of whether an individual is
‘disabled’ or ‘unable to work’ is reserved to the Commissioner and conclusory opinions
by others are entitled to no particular weight.” Vogelsang v. Comm'r of Soc. Sec., 657
F. Supp. 3d 450, 464 (S.D.N.Y. 2023) (citing Nunez v. Astrue, No. 11-CV-8711 (PKC),
2013 WL 3753421, at *11 (S.D.N.Y. July 17, 2013)). Because such evidence is
“inherently neither valuable nor persuasive,” an ALJ is under no obligation to “provide
any analysis about how [he or she] considered such evidence in [his or her]
determination or decision[.]” 20 C.F.R. § 404.1520b(c); see Antoinette P. v. Comm’r of
Soc. Sec., No. 1:20-CV-001675 (TPK), 2022 WL 17404288, at *4 (W.D.N.Y. Dec. 2,
2022) (explaining that a statement as to whether the plaintiff could work, “which does
Not include any opinion about [the p]laintiff's specific mental limitations[,] is not one
which is required to be analyzed [and i]t also does not carry any evidentiary weight”).
Thus, the ALJ was not required to provide any analysis about how she considered
Nurse Yirenchi’s statement plaintiff “could work with some limitation.” T. at 609. The
ALJ was also not required to address the supportability or consistency of Nurse
Yirenchi’s statement. See, e.g., Rachel D. v. Comm’r of Soc. Sec., 573 F. Supp. 3d

27

892, 900 (W.D.N.Y. 2021) (holding that a statement by a medical source that the
plaintiff was “disabled” or “unable to work” is an opinion on an issue reserved to the
Commissioner and, therefore, the ALJ was not required to consider that statement).
Contrary to plaintiffs contentions, the ALJ did not err when she did not address
the overall supportability or consistency of Nurse Yirenchi’s letter. As discussed, the
applicable regulations define a “medical opinion” as “a statement from a medical source
about what you can still do despite your impairment(s) and whether you have one or
more impairment-related limitations or restrictions” in the “ability to perform the
physical,” “mental,” and “other demands of work activities” as well as in the “ability to
adapt to environmental conditions.” 20 C.F.R. § 404.1513(a)(2). In her letter, Nurse
Yirenchi summarizes plaintiff's central nervous system examination, stating objective
Observations such as “cranial nerves are intact” and “motor tone and power are good.”
T. 609. However, Nurse Yirenchi does not otherwise provide an opinion “about what
[plaintiff] can still do despite [his] impairment(s)” or whether he has any work-related
limitations. 20 C.F.R. § 404.1513(a)(2); see Lisa A. S. v. Kijakazi, No. 5:21-CV-00078
(BKS/CFH), 2022 WL 4494189, at *8 (N.D.N.Y. Sept. 28, 2022) (concluding that
statements did not qualify as a medical opinion under the new regulations because the
physician did not “indicate what [the plaintiff ‘can still do’ despite a ‘likely’ impairment in
her social skills, ability to concentrate, and ability to work with others.”); see also
Michael H. v. Saul, No. 5:20-CV-417 (MAD), 2021 WL 2358257, at *6 (N.D.N.Y. June 9,
2021) (determining that a medical progress note did not constitute a medical opinion
because, “[w]hile it discusses [the p]laintiff's limitations, it does not discuss what [the
pllaintiff is still capable of doing.”); Kimberly B. v. Comm’r of Soc. Sec., No. 5:22-CV-350

28

(ATB), 2023 WL 3318488, at *10 (N.D.N.Y. May 9, 2023) (finding neuropsychological
report did not meet regulatory definition of medical opinion because it described the
plaintiffs attention and concentration as “a relative weakness” but “did not discuss her
ability to perform tasks despite the limitation.”). Thus, because Nurse Yirenchi’s letter
does not meet the regulatory definition of a “medical opinion,” the ALJ did not err by
o declining to address the overall consistency and supportability of the letter.
5. Sandra Juriga, Ph.D. and Tammy Inman, Ph.D.
On December 19, 2019, state agency reviewing psychologist, Dr. Sandra Juriga,
reviewed plaintiff's records. See T. at 91-92, 94-96, 104-05, 108-09. Dr. Juriga
assessed plaintiff to have moderate limitations in his ability to carry out detailed
instructions; moderate limitations in his ability to maintain attention and concentration for
extended periods; moderate limitations in his ability to perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances;
and moderate limitations in his ability to complete a normal workday and workweek
without interruptions from psychologically-based symptoms and to perform ata
consistent pace without an unreasonable number and length or rest periods. See id. at
95. Dr. Juriga noted that plaintiff's “[a]ttention and concentration [appear] impaired” and
| that he “took 50 minutes to complete a [medical] history form that should only take 15
minutes.” Id.
Upon reconsideration, on April 28, 2020, Dr. Tammy Inman also reviewed
plaintiff's records. See T. at 122, 126-28, 138, 142-43. Dr. Inman similarly determined
that plaintiff had moderate limitations in his ability to complete a normal workday and
workweek without interruptions from psychologically-based symptoms and to perform at

29

a consistent pace without an unreasonable number and length of rest periods. See id.
at 126. Dr. Inman stated that plaintiff “may get distracted at times and have some
difficulty maintaining pace [due to] motivational factors, but this would not prevent him
from working.” Id. at 128.
The ALJ explained that both Dr. Juriga and Dr. Inman “described moderate
| limitations in [plaintiff]’s ability to concentrate, persist and maintain pace,” yet “[bJoth
doctors concluded that [plaintiff] retains the ability to perform unskilled work on a
sustained basis.” T. at 24. The ALJ concluded that Dr. Juriga’s and Dr. Inman’s
opinions were “more persuasive” than other opinions in the record. Id. The ALJ noted
that their opinions
are based upon reviews of the relevant medical evidence,
and are supported by detailed explanation. Additional
factors adding to the persuasiveness of the doctors’
assessments are their familiarity with the Agency’s disability
program policies and evidentiary requirements, and the fact
that the explicit purpose of their reviews was to render
medical opinions on disability using said criteria.
Id.
Plaintiff argues that it was erroneous for the ALJ to determine that Dr. Juriga’s
and Dr. Inman’s opinions were “more persuasive” given that the ALJ did not adequately
m| assess the consistency and supportability factors as required by the regulations. Dkt.
No. 10 at 22-24. The Commissioner argues that the ALJ properly reviewed the
supportability and consistency factors, and reasonably found Drs. Juriga’s and Inman's
opinions “more persuasive.” Dkt. No. 11 at 22-23.
“{A]n ALJ is entitled to rely upon the opinions of both examining and non-
examining State agency medical consultants, since such consultants are deemed to be

30

qualified experts in the field of social security disability.” Baszto v. Astrue, 700 F. Supp.
2d 242, 249 (N.D.N.Y. 2010); see Amber H., 2021 WL 2076219, at *5 (“It is well settled
that, under both the old and new regulations concerning the evaluation of medical
evidence, an ALJ may rely on the opinion of a non-examining state agency consultant in
disability claims.”). An ALJ is still required, however, to articulate how persuasive he or
she finds the medical opinion of such consultants, including how he or she considered
the supportability and consistency factors. See 20 C.F.R. § 404.1520c.
Here, although the ALJ found Dr. Juriga’s and Dr. Inman’s opinions “more
persuasive,” the ALJ failed to sufficiently explain how she considered the consistency or
supportability of their opinions. See Jaleesa H. v. Comm'r of Soc. Sec., No. 1:20-CV-
01180 (EAW), 2022 WL 174337, at *5 (W.D.N.Y. Jan. 18, 2022) (remanding where “the
did not explain anything—instead, he made a conclusory statement that [an]
opinion was ‘generally consistent and supportive,’ without any explanation of how he
assessed the opinion in connection with the consistency and supportability factors
which, as explained above, is required by the new regulations.”). Specifically, the ALJ
did not address the opinions’ consistency or discuss how the opinions were supported
with explanation, except to conclude that they were. See T. at 24. The ALJ’s
| conclusory references to Dr. Juriga’s and Dr. Inman’s expertise and “the record as a
whole” fails “to meet the[ ] minimum levels of articulation [and] frustrates this [C]ourt’s
ability to determine whether her disability determination was supported by substantial
evidence.” T. at 19; Warren |. v. Comm’r of Soc. Sec., No. 5:20-CV-495 (ATB), 2021
WL 860506, at *8 (N.D.N.Y. Mar. 8, 2021); see also Raymond M. v. Comm'r of Soc.
Sec., No. 5:19-CV-1313 (ATB), 2021 WL 706645, at *8 (N.D.N.Y. Feb. 22, 2021)

31

(finding error where “[t]he ALJ provided no substantive explanation for her conclusion
that [an] opinion was persuasive, making only general reference to the state agency
consultant's expertise and experience, and his review of the available record.”).
“None of this is to say that on remand, the ALJ could not ultimately come to a
similar conclusion’—that Dr. Juriga’s and Dr. Inman’s opinions are “more persuasive.”
| Brenda Lee B. v. Comm'r of Soc. Sec., No. 5:20-CV-1403 (CFH), 2022 WL 1421821, at
*9 (N.D.N.Y. May 4, 2022) (citing Kimberly W. v. Kijakazi, No. 6:20-CV-925 (DJS), 2022
WL 561665, at *5 (N.D.N.Y. Feb. 24, 2022)). “However, the ALJ must sufficiently
explain the relevant factors such that the Court can meaningfully review whether those
conclusions are based on substantial evidence.” Id. (citing Stacy D. v. Comm’r of Soc.
Sec., 358 F. Supp. 3d 197, 202 (N.D.N.Y. 2019) (“An ALJ must set forth the crucial
factors justifying his findings with sufficient specificity to allow a court to determine
whether substantial evidence supports the decision.”)).
On remand, the ALJ should discuss the consistency and supportability factors
regarding the opinions offered by both Dr. Sandra Juriga and Dr. Tammy Inman.
6. Syed Ahmed, M.D. and Michael Kirsch, M.D.
“State Agency Consultants [Dr.] Syed Ahmed,[ ] who reviewed the claimant’s
| records in December 2019, and [Dr.] Michael Kirsch, [ ] who performed an independent
review in March 2020, opined that plaintiff can lift or carry 10 pounds frequently and 20
pounds occasionally, can stand/walk for 6 hours, and sit for 6 hours in an 8-hour
workday.” T. at 24 (citing T. at 93-94, 106-07, 123-25, 139-41). “The doctors stated
that the claimant should avoid concentrated exposure to extreme heat or cold, wetness,
humidity, and respiratory irritants.” ld. The ALJ found “[t]hese assessments, [which

32

were] supported by expertise, program knowledge and a review of the available medical
evidence, [to be] persuasive.” Id.
Plaintiff argues that the ALJ’s persuasiveness finding regarding Dr. Anmed’s and
Dr. Kirsch’s opinions is conclusory, as “there is no explanation of how the ALJ
considered the supportability and consistency factors as to these two medical opinions.”
| Dkt. No. 10 at 27. The Court agrees. The ALJ failed to specify how Dr. Anmed’s and
Dr. Kirsch’s opinions were supported, other than stating, generally, they were
“supported by expertise, program knowledge, and a review of the available medical
evidence.” T. at 24; see Jennifer G. v. Comm'r of Soc. Sec., No. 5:22-CV-00996
(MAD/ML), 2023 WL 8435991, at *7 (N.D.N.Y. Sept. 6, 2023) (“It is well-established that
an ALJ may not generally assert that an opinion is ‘consistent with’ or ‘supported by’ the
record, without further elaboration.”) (citing Melissa S. v. Comm’r Soc. Sec., No. 5:21-
CV-420 (DJS), 2022 WL 1091608, at *4 (N.D.N.Y. Apr. 12, 2022) (“[T]he ALJ does
nothing more than state that the opinion is inconsistent with the record but offers no
explanation as to how that is true.”), and Kathleen A., 2022 WL 673824, at *6), report
and recommendation adopted, 2023 WL 7277260 (N.D.N.Y. Nov. 3, 2023). The ALJ
did not explain what medical evidence Dr. Ahmed and Dr. Kirsch reviewed and relied
m|Upon. See Prieto v. Comm’r of Soc. Sec., No. 20-CV-3941 (RWL), 2021 WL 3475625,
at *13 (S.D.N.Y. Aug. 6, 2021) (finding error where the ALJ “afforded the most weight”
to the consultative examiner because the opinion was “supported by the medical
evidence of record and by her underlying examination[ ]” but did not explain what
medical evidence supported the opinion); see also Brianne S. v. Comm’r of Soc. Sec.,
No. 19-CV-1718-FPG, 2021 WL 856909 (W.D.N.Y. Mar. 8, 2021) (concluding that the

33

ALJ failed to adequately apply the supportability factor because the ALJ “did not
examine what [the doctors] used to support their opinions and reach their ultimate
conclusions.”). Further, the ALJ did not discuss how Dr. Ahmed’s and Dr. Kirsch’s
opinions were consistent with the other evidence in the record. See Raymond M., 2021
WL 706645, at “8 (“At their most basic, the amended regulations require that the ALJ
o explain her findings regarding the supportability and consistency for each of the medical
opinions, ‘pointing to specific evidence in the record supporting those findings.””)
(quoting Jacqueline L., 515 F. Supp. 3d at 11). Thus, the ALJ’s “conclusory statement
is an insufficient explanation of the supportability [and consistency] factor[s] and is
grounds for remand.” Prieto, 2021 WL 3475625, at *13 (citations omitted); see Warren
|., 2021 WL 860506, at “4 (remanding because the ALJ “failed to discuss what, if any,
Objective medical evidence and/or supporting explanations,” supported the conclusions
of the primary medical opinion on which he relied) (internal quotation marks omitted).
On remand, the ALJ should discuss the consistency and supportability factors regarding
the opinions offered by both Dr. Ahmed and Dr. Kirsch.
As remand is required, the Court need not reach plaintiff's remaining arguments,
including whether the ALJ erred in excluding a time off task or absenteeism limitation.
| See Dkt. No. 10 at 10-17; see also Elizabeth P., 2022 WL 507367, at *15 n.13 (“As
remand is required [due to the ALJ’s deficiencies in evaluating the medical opinion
evidence], the Court does not reach [the] plaintiffs remaining arguments concerning the
ALJ’s RFC . . . determination[ ]’); Jesse R. v. Comm'r of Soc. Sec., No. 3:20-CV-1220
(CFH), 2022 WL 813918, at *11 (N.D.N.Y. Mar. 17, 2022) (“As the ALJ erred under 20
C.F.R. § 404.1520c(b)-(c), remand is required and the Court need not address plaintiff's

34

remaining arguments”); Wilson v. Comm'r of Soc. Sec., No. 1:16-CV-77 (NAM), 2017
WL 1194229, at *5 (N.D.N.Y. Mar. 30, 2017) (“Because remand is recommended for the
reasons discussed above, remand is also recommended for a new analysis at step
five.”); Hamilton v. Astrue, No. 5:11-CV-954 (GLS), 2012 WL 5303338, at *3 (N.D.N.Y.
Oct. 25, 2012) (“Because [the plaintiff's] remaining arguments are contingent upon the
| ALJ’s resolution of the foregoing issue on remand, the [C]ourt need not address them.”).
“On remand, . . . the ALJ should consider each of the other alleged errors not discussed
in this decision as appropriate.” Travis L. v. Saul, No. 3:19-CV-663 (CFH), 2020 WL
5633823, at *10 (N.D.N.Y. Sept. 21, 2020).
C. Nature of Remand
At the end of his brief, plaintiff summarily seeks a determination that he is
m| disabled, but provides no argument as to why that relief is warranted. See Dkt. No. 10
at 28. This relief would only be warranted “when the record provides persuasive proof
of disability and a remand for further evidentiary proceedings would serve no purpose.”
Mortise v. Astrue, 713 F. Supp. 2d 111, 128 (N.D.N.Y. 2010) (quoting Parker v. Harris,
626 F.2d 225, 235 (2d Cir. 1980)). As the ALJ is not required to adopt Ms. Harvey’s,
plaintiff's school psychologist, opinion that plaintiff is disabled, and there is evidence in
| the record that could support a finding that plaintiff is not disabled, the Court will remand
for further proceedings. See Thomas T. on behalf of E.G.T. v. Comm'r of Soc. Sec.,
No. 5:21-CV-1225 (BKS/DEP), 2023 WL 2049526, at *5 (N.D.N.Y. Jan. 31, 2023)
(footnote omitted) (declining to remand for the calculation of benefits because “[t]he
opinion evidence does arguably provide a basis to find that the claimant might perhaps
meet the standard for disability, particularly as to the ability to remain on-task during a

35

workday[; h]owever, the relevant question is whether those opinions are consistent with
the medical evidence, and the ALJ’s failure in this case to show that she properly
considered all of that evidence when assessing the opinions prevents meaningful
review on that point.”), report and recommendation adopted, 2023 WL 2048560
(N.D.N.Y. Feb. 16, 2023).
a

V. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby:
ORDERED, that plaintiff's motion (Dkt. No. 10) be GRANTED; and it is further
ORDERED, that the Commissioner's decision be REVERSED and REMANDED
for further proceedings; and it is
ia ORDERED, that the Clerk serve a copy of this Memorandum-Decision & Order
on all parties in accordance with Local Rules.
IT IS SO ORDERED.

Date: March 12, 2024
Albany, New York

Uriel 2 ker)
Christian F. Hummel
U.S. Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10316528. Public record. Not legal advice.