Torres v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_______________________________________

STEPHANIE T.,1

Plaintiff DECISION AND ORDER

-vs-

1:20-CV-0322 CJS

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

________________________________________

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final

determination of the Commissioner of Social Security (“Commissioner” or “Defendant”)

which denied the application of Plaintiff for Social Security Disability Insurance benefits

and Supplemental Security Income benefits. Now before the Court is Plaintiff’s motion

(ECF No.8) for judgment on the pleadings and Defendant’s cross-motion (ECF No. 9) for

the same relief. For the reasons discussed below, Plaintiff’s application is denied and

Defendant’s application is granted.

STANDARDS OF LAW

The Commissioner decides applications for SSDI and SSI benefits using a five-

step sequential evaluation:

A five-step sequential analysis is used to evaluate disability claims. See 20

C.F.R. §§ 404.1520, 416.920. First, the Commissioner considers whether

the claimant is currently engaged in substantial gainful activity. If he is not,

1 The Court’s Standing Order issued on November 18, 2020, indicates in pertinent part that, “[e]ffective

immediately, in opinions filed pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), in

the United States District Court for the Western District of New York, any non-government party will be

identified and referenced solely by first name and last initial.”

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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 is listed in the regulations [or medically equals a listed

impairment]. Assuming the claimant does not have a listed impairment,

the fourth inquiry is whether, despite the claimant’s severe impairment, he

has the residual functional capacity to perform his past work.2 Finally, if the

claimant is unable to perform his past work, the Commissioner then

determines whether there is other work which the claimant could perform.

The claimant bears the burden of proof as to the first four steps, while the

Commissioner bears the burden at step five.

Colvin v. Berryhill, 734 F. App'x 756, 758 (2d Cir. 2018) (citations and internal quotation

marks omitted)

An unsuccessful claimant may bring an action in federal district court to challenge

the Commissioner’s denial of the disability claim. In such an action, “[t]he court shall

have power to enter, upon the pleadings and transcript of the record, a judgment affirming,

modifying, or reversing the decision of the Commissioner of Social Security, with or

without remanding the cause for a rehearing.” 42 U.S.C.A. § 405(g) (West). Further,

Section 405(g) states, in relevant part, that “[t]he findings of the Commissioner of Social

security as to any fact, if supported by substantial evidence, shall be conclusive.”

The issue to be determined by the court is whether the Commissioner’s

conclusions “are supported by substantial evidence in the record as a whole or are based

on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); see

2 Residual functional capacity “is what the claimant can still do despite the limitations imposed by his

impairment.” Bushey v. Berryhill, 739 F. App'x 668, 670–71 (2d Cir. 2018) (citations omitted); see also,

1996 WL 374184, Titles II & Xvi: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P

(S.S.A. July 2, 1996).

2

also, Barnaby v. Berryhill, 773 F. App'x 642, 643 (2d Cir. 2019) (“[We] will uphold the

decision if it is supported by substantial evidence and the correct legal standards were

applied.”) (citing Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) and Talavera v.

Astrue, 697 F.3d 145, 151 (2d Cir. 2012).”).

“First, the [c]ourt reviews the Commissioner's decision to determine whether the

Commissioner applied the correct legal standard.” Tejada v. Apfel, 167 F.3d 770, 773 (2d

Cir. 1999); see also, Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (“[W]here an error

of law has been made that might have affected the disposition of the case, this court

cannot fulfill its statutory and constitutional duty to review the decision of the

administrative agency by simply deferring to the factual findings of the ALJ. Failure to

apply the correct legal standards is grounds for reversal.”) (citation omitted).

If the Commissioner applied the correct legal standards, the court next “examines

the record to determine if the Commissioner's conclusions are supported by substantial

evidence.” Tejada v. Apfel, 167 F.3d at 773. Substantial evidence is defined as “more

than a mere scintilla. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. (citation omitted).

The substantial evidence standard is a very deferential standard of review—

even more so than the ‘clearly erroneous’ standard, and the

Commissioner’s findings of fact must be upheld unless a reasonable

factfinder would have to conclude otherwise.” Brault v. Social Sec. Admin.,

Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (emphasis in

original). “An ALJ is not required to discuss every piece of evidence

submitted, and the failure to cite specific evidence does not indicate that

such evidence was not considered.” Id.

Banyai v. Berryhill, 767 F. App'x 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019)

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(internal quotation marks omitted).

In applying this standard, a court is not permitted to re-weigh the evidence. See,

Krull v. Colvin, 669 F. App'x 31, 32 (2d Cir. 2016) (“Krull's disagreement is with the ALJ's

weighing of the evidence, but the deferential standard of review prevents us from

reweighing it.”); see also, Riordan v. Barnhart, No. 06 CIV 4773 AKH, 2007 WL 1406649,

at *4 (S.D.N.Y. May 8, 2007) (“The court does not engage in a de novo determination of

whether or not the claimant is disabled, but instead determines whether correct legal

standards were applied and whether substantial evidence supports the decision of the

Commissioner.”) (citations omitted).

FACTUAL and PROCEDURAL BACKGROUND

The reader is presumed to be familiar with the facts and procedural history of this

action. The Court will refer to the record only as necessary for purposes of this Decision

and Order.

On September 28, 2015, Monir Chaudry, M.D. (“Chaudry”) performed an

outpatient psychiatric evaluation of Plaintiff. Tr. 408-410. Chaudry noted that Plaintiff

had come to Woman’s Christian Association (“WCA”) Hospital in Jamestown, New York,

stating, “I stopped taking my Zoloft and I am smoking pot and drinking also.” Tr. 408.

Chaudry noted that he was familiar with Plaintiff, and that she had previously sought

mental health treatment from Chautauqua County Mental Health (“CCMH”), but had not

been serious about pursuing treatment: “The accompanying record indicates the patient

used to be at CCMH, but she is not serious. The patient sometimes comes, sometimes

does not come and she is picky and selective.” Tr. 408. Chaudry indicated that Plaintiff

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had previously exhibited drug seeking behavior to obtain Adderall, stating,

It is very sad to see Stephanie, a 24-year-old, average built Hispanic female

who has the tendency to get Adderall one way or the other by presenting

history of ADHD. This MD never bought it. She used to be on Zoloft and

stopped taking it and now wants back this medicine.

Tr. 410. Chaudhry further noted that Plaintiff “has a tendency to abuse a lot of street

drugs.” Tr. 410. Chaudry indicated that Plaintiff had recently broken up with her

boyfriend and had expressed suicidal ideation in order to receive “priority” evaluation in

the emergency room. Tr. 408. Upon examination, however, Chaudhry reported that

Plaintiff was “bubbly, smiling, [and] relaxed,” with good hygiene, heavy makeup, good eye

contact, normal speech, intact memory, goal directed thought processes and no suicidal

ideation. Tr. 409. Chaudhry’s diagnoses were “nicotine dependence, continuous,”

“marijuana dependence, continuous,” “alcohol abuse, continuous” and “depressive

disorder, not otherwise specified.” Tr. 409. Chaudry recommended that Plaintiff be

placed back on Zoloft and pursue supportive psychotherapy. Tr. 410.

Subsequently, it appears that Plaintiff remained in mental health treatment at WCA

on-and-off through January 27, 2016, with many “no shows” during that period. Tr. 335,

336, 372-373, 378-379, 385-386.

On October 21, 2015, Plaintiff went to the emergency department (“ED”) claiming

to feel depressed and “very sad.” Tr. 346. Plaintiff expressed suicidal ideation and stated

that “people would be better off without her.” Tr. 355. However, Plaintiff’s behavior was

reported as “appropriate, cooperative,” Tr. 347, and she did not appear to be in acute

distress. Tr. 352. Plaintiff reportedly stated that she had “never” smoked and did not use

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alcohol or illicit drugs. Tr. 352. Plaintiff was discharged in stable condition. Tr. 354.

On November 20, 2015, Plaintiff stated that she felt “moody” and “need[ed] her

medication for her ADHD.” Tr. 383.

On December 8, 2015, Plaintiff told her therapist that she was “not as depressed”

and that her college classes3 were going “ok.” Tr. 380.

On December 15, 2015, Plaintiff admitted to her therapist that she had “self-

abused” herself, presumably by cutting herself,4 to manipulate her ex-boyfriend. Tr. 376

(“Pt. self abused to manipulate her ex whom is staying with her.”). Plaintiff also told her

therapist that she had used information that she had learned in her psychology class to

self-diagnose herself with borderline personality disorder. Tr. 376.

On January 27, 2016, Plaintiff admitted to her psychologist at WCA, Frederick

Verdonik, Ph.D. (“Verdonik”), that she stole money from her boyfriend and family

members, evidently to buy drugs, and that she felt guilty about this, and sometimes

feigned cutting behaviors and suicidal ideation to deflect attention away form her bad

behavior. Tr. 334-335. Plaintiff indicated that she was doing well with her college classes

and getting grades between B’s and C’s. Tr. 337. Verdonik noted that Plaintiff “hedges

on truth at times” and is “manipulative at times.” Tr. 335.

On October 24, 2016, Plaintiff filed an application for SSDI and SSI benefits,

claiming a disability onset date of September 30, 2014. Plaintiff claimed to be disabled

since 2014 due to a combination of impairments, primarily related to her mental health,

3 Plaintiff dropped out of high school in tenth grade, but then earned her GED and took college classes.

Plaintiff was in regular education classes while in school.

4 See below, medical note from January 27, 2016.

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that cause her problems with “focusing, [being] off task, [missing work] and [needing to

take] extra breaks” at work. Tr. 40.

In 2011, Plaintiff had previously been awarded disability benefits, but her benefits

were terminated in 2016 after the Commissioner concluded that her condition had

improved. Tr. 38–39. The Commissioner apparently made that determination because

after being awarded benefits, Plaintiff had stopped attending treatment, causing the

Commissioner to conclude that Plaintiff’s condition had improved. Plaintiff did not appeal

the cessation of her benefits.5

On July 27, 2016, a few months prior to filing these applications, Plaintiff again

sought mental health services after being away from treatment. Tr. 870. According to

Plaintiff, the immediate impetus for her returning to treatment was that her previously-

awarded disability benefits had ended. Tr. 870. Plaintiff initially indicated that she did not

know why she was seeking treatment, but then indicated that she had “really bad anxiety,”

as well as mood swings and problems with concentration. Tr. 870. Plaintiff stated that

she wanted to return to work, Tr. 870, and the therapist listed her employment status as,

“unemployed, looking for work.” Tr. 874. Plaintiff had previously taken college classes

in the field of criminal justice, but indicated that she was presently working on finishing a

degree as a medical assistant. Tr. 876

Plaintiff remained in treatment on-and-off through November 9, 2018, though she

frequently missed therapy appointments. Indeed, after her initial return to therapy in July

5 At the subsequent administrative hearing underlying this action, Plaintiff agreed that her benefits had

been stopped after the Commissioner concluded that her condition improved because she had stopped

seeking treatment for her alleged impairments. Tr. 39.

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2016, it appears that Plaintiff did not attend another therapy appointment until April 2017.

Tr. 890.

In the meantime, on February 21, 2017, Kristina LaBarbera, Psy.D. (“LaBarbera”)

performed a consultative psychiatric evaluation at the Commissioner’s request. Tr. 793-

797. LaBarbera reported that Plaintiff was not presently receiving mental health

treatment. Plaintiff reported having a variety of mental health symptoms, including

depression, crying spells, hopelessness, irritability, difficulty concentrating, panic attacks

and “manic symptomology.” Tr. 793-794. However, upon examination, LaBarbera

reported largely normal findings, including full affect, neutral mood, intact attention and

concentration, average cognitive functioning, fair insight and fair judgment. Tr. 795-796.

LaBarbera noted, though, that Plaintiff’s memory skills were mildly impaired due to

emotional distress. Tr. 795. LaBarbera reported that Plaintiff was able to cook, clean,

perform shopping, and care for her two children. Tr. 796. Plaintiff indicated that she

“spen[t] her days caring for her children and watching TV while in bed.” Tr. 796.

LaBarbera diagnosed Plaintiff with Bipolar type II disorder, panic disorder, attention deficit

hyperactivity disorder (“ADHD”), cannabis abuse, and unspecified personality disorder

with borderline features. Tr. 797. LaBarbera stated that Plaintiff’s prognosis was “good,

given [her] current level of functioning.” Tr. 797. LaBarbera’s medical source statement

was as follows:

The claimant has no limitations in her ability to understand, remember, and

apply simple directions and instructions; interact adequately with

supervisors, coworkers and the public; sustain concentration and perform a

regular attendance at work; maintain personal hygiene and appropriate

attire; and maintain awareness of normal hazards and take appropriate

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precautions. She is mildly limited in her ability to understand, remember,

and apply complex directions and instructions, and use reason and

judgment to make work-related decisions. She is moderately limited in her

ability to regulate emotions, control behavior, and maintain well-being.

These deficits are related to her diagnosis of depression and possible

personality disorder. Difficulties are caused by distractibility.

Tr. 796. Notably, at the time of LaBarbera’s examination, Plaintiff was reportedly not

taking any medication for her alleged mental health symptoms or receiving any therapy.

Tr. 793–797.

Subsequently, in April 2017, again Plaintiff returned to mental health therapy. On

May 3, 2017, Plaintiff told her therapist that her “mind [was] running so much,” and that

she felt sad and frustrated by her inability to concentrate. Tr. 896. Plaintiff, though,

denied having problems with anxiety or memory. Upon examination, the therapist noted

that Plaintiff was dressed neatly and appropriately with good hygiene, and that she had

poor eye contact at time, though still “within normal limits.” Tr. 898. The therapist noted

that Plaintiff did not seem depressed or anxious. Tr. 898.

On May 26, 2017, Plaintiff’s therapist reported that Plaintiff, who was still taking

college classes at the time, had been “struggling with finals [(final exams)] for a few days.”

Tr. 904. Plaintiff reported having symptoms including worry, exasperation, trouble

concentrating and focusing, some depression and some anxiety. Tr. 904. Plaintiff denied

any delusions, hallucinations or hypomania. Tr. 904. Upon examination, the therapist

reported that Plaintiff appeared clean, cooperative, calm, logical, fluent, goal directed,

thoughtful and articulate, and quite rational. Tr. 904. Plaintiff’s mood was described as,

“fairly good. Stable and appropriate.” Tr. 904. The therapist indicated that Plaintiff was

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“generally functioning adequately.” Tr. 904. Nevertheless, Plaintiff was prescribed

medications including Adderall, Klonopin and Trileptal. Tr. 930.

On November 13, 2017, Plaintiff’s therapist reported that Plaintiff presented with

an “elevated mood with heightened anxiety.” Tr. 934. Plaintiff reportedly stated that she

“desires to be a good mom and finish her college classes but [wa]s struggling to stay

focused.” Tr. 934. The therapist noted that Plaintiff struggled to stay focused and often

“jumped off topic.” Tr. 934. Plaintiff reported engaging in “cutting behaviors,” in the

context of being angry at her ex-boyfriend, who was seeing a new girlfriend. Tr. 934.

Plaintiff reported having impulsiveness, mood fluctuations, depression, anxiety,

flashbacks and inconsistent sleep. Tr. 937. The therapist opined that Plaintiff’s

symptoms were indicative of bipolar disorder, and encouraged Plaintiff to take her

prescribed medications.

On December 17, 2017, Plaintiff told her therapist that she was struggling to “cope

with stress in her daily life,” and felt pressured to have “a man in her life.” Tr. 944. The

therapist noted an improvement in Plaintiff’s mood which she attributed to medication. Tr.

944 (“Some mild improvement in mood since restarting medication.”). The therapist

further stated that Plaintiff was “gaining insight regarding the benefits of medication

compliance to help manage her mood.” Tr. 944.

On March 26, 2018, Plaintiff met with treating physician’s assistant Alicia Snow,

PA (“Snow”), for mental health medication management. Tr. 994–995. Upon

examination, Snow reported that Plaintiff seemed “anxious and cooperative,” and that her

mood was “much, much better.” TR. 994. Snow indicated that Plaintiff had good eye

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contact, linear and goal-directed though processes, normal speech, congruent affect,

good grooming, intact memory, intact attention, intact concentration, and limited

judgment/insight “with much improvement.” Tr. 994. Snow continued Plaintiff on

Adderall, Klonopin and Latuda. Tr. 995.

On April 18, 2018, Plaintiff told her therapist that she had stopped smoking

marijuana after becoming “paranoid,” though she previously felt that marijuana helped

her symptoms. Tr. 999. Plaintiff reported mental health symptoms including anxiety,

impulsiveness and depression. Tr. 999. Plaintiff complained of having “flashbacks”

involving physical and mental abuse by her father when she was a child. Tr. 999.

Regarding her medications, Plaintiff stated that she “loved” Latuda, and was “feeling

good” with regard to bipolar symptoms. Tr. 999. Plaintiff also stated that she felt Adderall

helped with her “ADHD symptoms.” Tr. 999.

On April 24, 2018, Plaintiff told her therapist that she had decided to stop taking

her medications for a few days, and had “noticed a significant difference in her mood,”

after which she resumed taking her medications. Tr. 1005.

On January 9, 2019, a hearing was held before an Administrative Law Judge

(“ALJ”), at which Plaintiff appeared with her attorney. The ALJ took testimony from

Plaintiff and from a vocational expert (“VE”).

On January 24, 2019, the ALJ issued a decision finding that Plaintiff was not

disabled at any time between the alleged onset date, September 30, 2014, and the date

of the decision. Applying the five-step sequential evaluation process, the ALJ found, at

step one, that Plaintiff had not engaged in substantial gainful activity (“SGA”) since the

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alleged onset date. At step two, the ALJ found that Plaintiff had the following severe

impairments: “affective disorder, anxiety disorder, personality disorder, and Attention

Deficit Hyperactivity Disorder (ADHD).” Tr. 13. At step three, the ALJ found that

Plaintiff’s impairments, including non-severe impairments, either singly or in combination

did not meet or medically equal the severity of a listed impairment. Prior to reaching the

fourth step of the sequential evaluation, the ALJ found that Plaintiff had the following

residual functional capacity (“RFC”):

[C]laimant has the [RFC] to perform a full range of work at all exertional

levels but with the following non-exertional limitations: The claimant is able

to perform simple work tasks in a non-assembly line type production-paced

setting, involving no interaction with the public and only occasional

interactions with supervisors and coworkers, but no team or tandem

collaborative type work. She is able to make basic work-related decisions

and adapt to simple changes in a routine work setting.

Tr. 15. At the fourth step, the ALJ found that Plaintiff had no past relevant work. At the

fifth step, the ALJ found that Plaintiff could perform several jobs that the VE identified. Tr.

22. Consequently, the ALJ found that Plaintiff was not disabled. Plaintiff appealed that

ruling, but on January 13, 2020, the Appeals Council declined to review the ALJ’s

decision. Tr. 1.

As noted above, the ALJ found that Plaintiff’s severe impairments consisted of

“affective disorder, anxiety disorder, personality disorder, and [ADHD].” Plaintiff also

claims to suffer from “bipolar disorder,” a diagnosis that was made by several doctors.

However, the ALJ did not specifically mention bipolar disorder in the “Step-Two section”

of his decision. The ALJ did, though, state at that point in the decision, that, “Regardless

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of their characterization, I have considered all of the claimant’s impairments, severe and

non-severe, as well as all associated documented symptoms of record, in assessing her

residual functional capacity.” Tr. 13.

Similarly, the ALJ did not expressly mention bipolar disorder in his discussion at

step three of the sequential evaluation. In fact, the ALJ did not expressly mention any of

Plaintiff’s specific diagnoses, except for her ADHD. Tr. 14. Rather, the ALJ referred to

Plaintiff’s “mental impairments” generally during his step-three discussion, and focused

on particular symptoms. See, Tr. 14 (“The severity of the claimant’s mental impairments,

considered singly and in combination, do not meet or medically equal the criteria of listings

12.04, 12.06 and 12.15.”).

The ALJ did, however, expressly discuss Plaintiff’s bipolar disorder when

explaining the RFC finding. Indeed, the ALJ expressly referred to “bipolar disorder” three

times, and alluded to it several additional times, such as when referencing Plaintiff’s “roller

coaster” moods, “hypomanic symptoms,” and “trouble with mania.” Tr. 17–20. The ALJ

stated, for example, that,

[C]laimant is diagnosed with bipolar disorder, anxiety disorder, personality

disorder and ADHD. She has symptoms including anxiety, mood swings,

crying spells, feelings of guilt, hopelessness, loss of usual interests,

difficulty with concentration, sleep disturbance, and panic attacks.

Tr. 17. The ALJ further noted that treating physician Dr. Gibbon prescribed Plaintiff

Trileptal and clonazepam (Klonopin) for her bipolar symptoms. Tr. 18. The ALJ also

discuss how Plaintiff was eventually prescribed Latuda, which greatly improved her

bipolar symptoms. Tr. 19 (“By mid-May, the claimant report[ed] feeling well, and called

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Latuda “my miracle drug.”).

In this action, Plaintiff contends that the Commissioner’s decision denying benefits

must be reversed primarily because the ALJ allegedly “fail[ed] to evaluate” Plaintiff’s

“bipolar disorder at Step Two or beyond.”6

Defendant disputes Plaintiff’s arguments and maintains that the ALJ’s decision is

free of reversible legal error and supported by substantial evidence.7

The Court has carefully reviewed and considered the parties’ submissions.

DISCUSSION

The ALJ’s Alleged Failure to Consider Plaintiff’s Bipolar Disorder

Plaintiff argues that “[t]he ALJ failed to evaluate Plaintiff’s medically determinable

bipolar disorder at Step Two or beyond.”8 (emphasis added). Plaintiff reiterates this point

by stating:

The ALJ found Plaintiff to have severe mental impairments including

affective disorder, anxiety disorder, personality disorder, and ADHD.

However, at no point did the ALJ discuss Plaintiff’s diagnosed bipolar

disorder and its attendant symptoms.

Pl. Mem. of Law, ECF No. 8-1 at p. 8 (emphasis added). Plaintiff further contends that

the ALJ’s alleged failure to consider her bipolar disorder was extremely prejudicial, since

the ALJ “faulted” her for her noncompliance with treatment without considering that such

noncompliance was a symptom of her bipolar disorder.9 In this regard, Plaintiff argues

6 Pl. Mem. of Law, ECF No. 8-1 at pp. 1, 8.

7 Defendant argues, for example, that Plaintiff’s argument lacks merit since “[t]he ALJ considered bipolar

disorder at the subsequent steps of the sequential evaluation and accounted for any functional limitations

related to the disorder in his RFC finding.” Def. Memo of Law, ECF No. 9-1 at p. 5.

8 Pl. Mem. of Law, ECF No. 8-1 at p. 8.

9 Pl. Mem. of Law, ECF No. 8-1 at p. 11 (“[T]he ALJ repeatedly faulted the claimant for non-compliance

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that her admitted non-compliance with treatment was caused by her bipolar disorder.10

Plaintiff also maintains that her bipolar disorder prevents her from working even part-time,

and that the ALJ’s contrary finding is not supported by substantial evidence.

However, the Court finds that Plaintiff’s arguments lack merit. To begin with,

Plaintiff is simply incorrect to assert that the ALJ failed to discuss bipolar disorder “at Step

Two or beyond.” As discussed earlier, the ALJ did not mention bipolar disorder at Step

Two, but he did discuss it at Step Four. Moreover, the Court believes that the ALJ also

considered Plaintiff’s bipolar disorder at Step Three, though he did not expressly mention

it, as indicated earlier. In that regard, at Step Three the ALJ considered all of the

symptoms of Plaintiff’s “mental impairments” to the extent they related to the relevant

listings. In sum, it appears to the Court that the ALJ either simply forgot to list bipolar

disorder at Step Two or, more likely, that he just referred to it generally under the terms

“affective disorder” and/or “personality disorder.” Tr. 13.11

Nevertheless, even assuming arguendo that the ALJ technically erred by failing to

list bipolar disorder as one of Plaintiff’s impairments at Step Two, such error is harmless

here. More specifically, the Second Circuit has indicated that such an error may be

harmless, provided that the ALJ considers the impairment at the subsequent steps of the

with treatment, but did not distinctly consider whether such difficulties could be a manifestation of

plaintiff’s bipolar disorder. . . . [A]t no point did the ALJ discuss whether bipolar disorder affected

Plaintiff’s ability to comply with treatment. Instead, he used this non-compliance against Plaintiff, which

is wholly improper.”) (internal quotation marks omitted).

10 See, Pl. Memo of Law, ECF No. 8-1 at pp. 10-11 (“[Plaintiff] admitted to Dr. Ames that she had not

been good about taking her medication due to mania and difficulty remembering it. (Tr. 828)”).

11 During the administrative hearing, the ALJ used the term “mental health” to refer to Plaintiff’s various

diagnoses, including anxiety, depression, bipolar disorder and ADHD. See, Tr. 47 (ALJ: “[Y]ou’re taking,

looks like, four medication for your mental health, whether it’s anxiety, depression, bipolar disorder or

ADHD.”).

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sequential evaluation, and on this point this Court previously stated:

At step two of the sequential evaluation, the Commissioner “consider[s] the

medical severity of [the claimant's] impairment(s).” 20 C.F.R. §

404.1520(a)(4)(2). If the Commissioner fails to consider an impairment at

step two, the error may be harmless if the Commissioner continues through

the remaining steps and considers the impairment that was omitted at step

two. See, Reices-Colon v. Astrue, 523 F. App'x 796, 798 (2d Cir. 2013)

(“[Plaintiff] claims that the ALJ's step two analysis was deficient because

the ALJ excluded her anxiety disorder and panic disorder from his review.

... [A]ny error would be harmless. At step two, the ALJ identified other

“severe impairments[,]” and therefore proceeded with the subsequent

steps. And, in those subsequent steps, the ALJ specifically considered her

anxiety and panic attacks. Because these conditions were considered

during the subsequent steps, any error was harmless.”) (citation and

internal quotation marks omitted).

However, remand is appropriate if the Commissioner fails to consider the

omitted impairments at the subsequent steps of the sequential evaluation.

See, Pickering v. Comm'r of Soc. Sec., No. 817CV700GTSWBC, 2018 WL

3520844, at *4 (N.D.N.Y. June 12, 2018) (“Remand is recommended

because the ALJ failed to consider Plaintiff's thoracic outlet syndrome at

step two. The ALJ's error cannot be deemed harmless because substantial

evidence in the record contained evidence of work related functional

limitations due to this impairment which the ALJ failed to consider in

formulating Plaintiff's RFC.”), report and recommendation adopted sub

nom. Katy P. v. Comm'r of Soc. Sec., No. 817CV0700GTSWBC, 2018 WL

3520427 (N.D.N.Y. July 20, 2018).

Lozada v. Comm'r of Soc. Sec., No. 1:19-CV-0640 CJS, 2020 WL 5350176, at *4

(W.D.N.Y. Sept. 4, 2020). 12

12 See also, Rivera v. Colvin, 592 F. App'x 32, 33–34 (2d Cir. 2015) (“At step two, the ALJ found that

Rivera's anxiety and PTSD were not severe impairments. Rivera argues this conclusion is not supported

by the record, as he was diagnosed with both anxiety and PTSD. However, even assuming that the ALJ

erred at step two, this error was harmless, as the ALJ considered both Rivera's severe and non-severe

impairments as he worked through the later steps. The ALJ discussed whether the mental impairments

met a listing at step three and considered his mental impairments as part of the residual functional

capacity finding.”).

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Here, the Court finds that the ALJ’s error at Step Two was harmless, since the ALJ

found that Plaintiff had other severe impairments at Step Two, and he considered

Plaintiff’s bipolar disorder at the subsequent steps, and particularly when making his RFC

determination. Tr. 17-20. To the extent that Plaintiff contends that ALJ did not consider

Plaintiff’s bipolar disorder at the subsequent steps, the Court disagrees for the reasons

already discussed.

Plaintiff nevertheless argues, in the alternative, that the ALJ erroneously “faulted”

Plaintiff for her noncompliance with treatment, without considering that such

noncompliance was a symptom of her bipolar disorder.13 Several district court decisions

in this Circuit have held that an ALJ must consider whether a claimant’s non-compliance

with treatment is a symptom of a mental health impairment. See, e.g., Kent v. Saul, No.

19-CV-097-MJR, 2020 WL 4581693, at *4 (W.D.N.Y. Aug. 10, 2020) (“Here, the ALJ

concluded, at least in part, that Plaintiff lacked credibility because of her noncompliance

with treatment, without considering whether there was an explanation for her actions or

whether her bipolar disorder affected her judgment to appropriately comply with

treatment. Accordingly, the ALJ erred when he discounted Plaintiff's credibility for this

reason and the case must be remanded.”) (collecting cases).

13 Pl. Mem. of Law, ECF No. 8-1 at p. 11 (“[T]he ALJ repeatedly faulted the claimant for non-compliance

with treatment, but did not distinctly consider whether such difficulties could be a manifestation of

plaintiff’s bipolar disorder. . . . [A]t no point did the ALJ discuss whether bipolar disorder affected

Plaintiff’s ability to comply with treatment. Instead, he used this non-compliance against Plaintiff, which

is wholly improper.”) (internal quotation marks omitted).

17

However, the Court does not agree that the ALJ erred in this manner. To begin

with, the Court does not agree that the ALJ “faulted” Plaintiff for her noncompliance.

Instead, the ALJ merely observed that Plaintiff was non-compliant with treatment in

several instances, and that her functioning improved when she was compliant with

treatment. It appears true, though, that the ALJ partially relied on this evidence to find

that Plaintiff’s symptoms were not as severe as she claimed.

The Court, though, does not agree that the ALJ failed to consider the reasons why

Plaintiff was non-compliant with treatment. Rather, the transcript of the administrative

hearing indicates that the ALJ was quite interested in learning the reasons for that non-

compliance. Tr. 54–57.

For example, the ALJ questioned Plaintiff about the frequency with which she was

supposed to meet with her mental health therapist.14 Plaintiff admitted that her therapist

wanted to see her “once a week,” but Plaintiff went much less frequently. When asked

why, Plaintiff implied that she did not feel comfortable with her new therapist, but did not

really give a definitive answer. Tr. 55-57 (Plaintiff: “I know with the new one, I met her

once or twice, and it’s still taking me time to – because they want to see me once a week.

. . . And it’s, like, I’d love to do it, but I’m just – I don’t know.”). Upon further questioning

by the ALJ on that point, Plaintiff admitted that her symptoms improved when she was

compliant with treatment, but she nevertheless indicated that she preferred not to discuss

her problems with a therapist because she did not want to burden anyone with her

problems. Tr. 57 (“I notice there’s times where, yes, my life gets more chaotic without

14 Plaintiff was frequently a “no show” at her mental health therapy sessions. See, Exhibit B14F; Tr. 892.

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speaking to them [(therapists)], but I’m just come to the point where I just like to keep it

quiet. Why open up anymore and put my problems on somebody else? It’s a lot to do

with, like, guilt, and I just – I don’t know.”). Notably, Plaintiff did not indicate that her

failure to attend therapy sessions was due to her bipolar disorder.

Similarly, the ALJ observed that Plaintiff’s non-compliance in taking her prescribed

medications was not across-the-board, as one might expect if such non-compliance was

caused by bipolar disorder. Rather, Plaintiff took medications that she liked, but stopped

taking others for particular reasons.15 For example, Plaintiff was compliant in taking

Latuda for her bipolar symptoms, and described it as a “miracle drug.” Tr. 19. However,

Plaintiff stated that she stopped taking Trileptal because “she was feeling better,” Tr. 18,

and that she stopped taking another drug because it made her “feel funny.” Tr. 20, 1033.

At other times, Plaintiff indicated that she preferred smoking marijuana to taking

prescribed medications. Tr. 19–20.16 The ALJ observed that on some occasions,

Plaintiff claimed that she had “forgotten” to take certain medications, but mental status

exams showed that her memory and concentration were intact. Tr. 19 (“[H]er memory and

concentration were grossly intact.”). In any event, the ALJ considered Plaintiff’s non-

compliance, but nevertheless found that, even with such non-compliance, her overall

condition was not disabling, and that she could work within the parameters of the RFC

finding. Tr. 20 (Discussing Plaintiff’s non-compliance with treatment, but concluding:

15 On May 3, 2017, Plaintiff told her mental health therapist that she had stopped taking all medications a

year earlier. Tr. 897.

16 Plaintiff’s purported desire to stop smoking marijuana was a frequent topic in her mental health therapy

sessions. For example, when asked about her mental health treatment goals, Plaintiff reportedly stated,

“She wanted to remain the same with the addition of ceasing to smoke marijuana.” Tr. 1039.

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“Nonetheless, the record shows that the claimant’s improvement is sufficient to allow for

functioning within the residual functional capacity outlined above.”). In that regard, the

ALJ observed that even with such non-compliance, Plaintiff “was still able to take classes,

care for her children with assistance, and work a part-time job.” Tr. 20. Moreover, the

ALJ noted that the opinion of Dr. LaBarbera, discussed earlier, and to which the ALJ gave

partial weight, was rendered at a time when Plaintiff claimed she was not taking any

medication or pursuing any therapy. Tr. 21

Accordingly, the ALJ considered the proffered reasons for Plaintiff’s non-

compliance with her doctor’s treatment recommendations. The Court therefore finds that

Plaintiff’s argument on this point lacks merit.

Finally, Plaintiff contends that the ALJ’s finding that Plaintiff was capable of

sustained full-time work was erroneous, since Plaintiff required numerous

accommodations even to maintain her part-time employment. However, the ALJ

explored that point, see, e.g., Tr. 17 (1st full paragraph) and nevertheless found both that

Plaintiff’s statements about her limitations were not entirely consistent with the record,

and that Plaintiff could perform full-time work within the parameters of the RFC finding.

Tr. 14-15, 17-20. Those findings are supported by substantial evidence. Id.

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CONCLUSION

For the reasons discussed above, Plaintiff's motion (ECF No.8) for judgment on

the pleadings is denied and Defendant's cross-motion (ECF No. 9) for the same relief is

granted. The Clerk of the Court is directed to enter judgment for Defendant and close

this action.

So Ordered.

Dated: Rochester, New York

September 15, 2021

ENTER:

. x NOQ?

CHARLES \L/SIRAG

United States District e

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