# Horton v. Comissioner of Social Security

> District Court, W.D. New York · March 31, 2022

URL: https://www.frixlaw.com/law-library/cases/10364866

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 31, 2022
- **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/10364866

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________

DANA H.,1
Plaintiff DECISION and ORDER
-vs-
6:20-CV-6592 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 Supplemental Security Income (“SSI”) benefits. Now before the Court
is Plaintiff’s motion (ECF No. 16) for judgment on the pleadings and Defendant’s cross-motion
(ECF No. 19) 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 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, 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

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.”

1
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 [(“RFC”)] 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 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,

2 Residual functional capacity or RFC “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
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). However, not every legal error by an ALJ requires reversal. Rather, an error may be

deemed harmless unless it prejudices the plaintiff by negatively affecting the outcome of the
ALJ’s decision. See, 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).3
If the Commissioner applied the correct legal standards, or if any legal error was
harmless, 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

3 See also, Monroe v. Comm'r of Soc. Sec., 676 F. App'x 5, 9 (2d Cir. 2017) (“[W]e agree that any such error was
harmless, since Monroe has not identified any prejudice and the record establishes that the error did not affect the
ALJ's decision.”); Suttles v. Colvin, 654 F. App'x 44, 47 (2d Cir. 2016) (“[A]ssuming that the Appeals Council
erred, there was nevertheless no reasonable possibility that consideration of Dr. Liotta's report would have altered
the ALJ's decision, because the evidence that Dr. Liotta adduced was not materially different from that which was
already before the ALJ and the vocational expert when they reached their conclusions.”); but compare, Greek v.
Colvin, 802 F.3d 370, 376 (2d Cir. 2015) (“Dr. Wheeler provided the ALJ with an opinion that Greek . . . would
likely be absent from work more than four days per month as a result of his impairments or treatment. . . .
Because a vocational expert in this case testified that Greek could perform no jobs available in large numbers in
the national economy if he had to miss four or more days of work per month, the ALJ's failure to provide adequate
reasons for rejecting Dr. Wheeler's opinion was not harmless.”).

3
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) (internal
quotation marks omitted).
In applying the substantial-evidence 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.
Plaintiff has a high school education. Plaintiff was in special education classes
throughout his school years. Plaintiff indicates that while in school he was anxious and bullied
by some peers, though this situation improved when he began using and distributing marijuana.
In or about his junior year of high school Plaintiff was assaulted by a classmate who struck him
with a tree branch, causing a skull fracture and traumatic brain injury. Tr. 451 (“He was seen at
Strong [Memorial Hospital] for about 2 weeks. He lost consciousness. He had a [right] parietal

4
depressed skull f[racture], underlying contusions[.]”).
In or about his senior year of high school, Plaintiff began attending a program at the Board
of Cooperative Educational Services (“BOCES”). In that regard, a report from Plaintiff’s high
school’s Committee on Special Education (“CSE”), recommending that he attend the BOCES

program, observed that his reading comprehension skills were “at or above grade level” but his
math skills were “not as well developed.” Tr. 216, 451. Additionally, the CSE noted that the
BOCES program might be beneficial to Plaintiff since he had a detached attitude toward his
regular classes and peers, and would often leave school early. Tr. 216. At BOCES, Plaintiff
attended a work-study program that placed him at an outside business with a job coach in
connection with New York’s VESID (Vocational and Educational Services for Individuals with
Disabilities) program. Tr. 216, 218. Plaintiff initially performed well at the work-study program,
but became “bored” and “difficult to manage” after he realized that the program would not result
in long-term employment with that company, and was fired. Tr. 219. Plaintiff subsequently held
approximately thirteen-to-sixteen different jobs, but was fired from every one of them. Tr. 451

(“Has had 16 jobs since 1995 and has been let go from all of them.”). Plaintiff indicates that
when being fired, he was typically told that he was “too slow” or “not a good fit” for the job. Tr.
274.
Plaintiff’s use of marijuana, which, as noted earlier, began in high school, continued
through his adult life. Plaintiff also abused prescription narcotics, and then heroin, though he
has reportedly not used heroin since 2002. Tr. 682 (Office note summarizing Plaintiff’s drug-use
history). At all times relevant to this action, the record suggests that Plaintiff’s days have, to

5
some extent, revolved around his drug usage.4 For example, medical and mental health
treatment notes reference Plaintiff’s daily visits to a methadone clinic, daily heavy usage of
marijuana, and daily usage of non-prescribed klonopin. Plaintiff justifies his use of marijuana
and klonopin as being necessary to cope with his anxiety. See, e.g., Tr. 384, 453, 461, 464, 478,

488, 680. Indeed, Plaintiff has opted to switch recovery programs rather than comply with
demands by treatment providers that he stop using non-prescription benzodiazepines. Tr. 680,
682. Plaintiff also smokes a pack of cigarettes per day. Tr. 451, 617.
Plaintiff has a variety of physical health problems including obesity, diabetes,
hypertension and hyperlipidemia. Treatment notes from office visits for those conditions
generally indicate normal mental status findings. See, e.g., Tr. 380 (Alert, oriented, appropriate
mood and affect); 399 (“Cooperative, appropriate mood & affect.”); 511 (“Psychiatric: He has a
normal mood and affect. Thought content normal.”); 532 (“His behavior is normal.”); 573
(“Judgment and thought content normal. He is not actively hallucinating. Cognition and
memory are normal. He is attentive.”); 617 (“Normal mood and affect.”).

In 2017 Plaintiff’s mother sought to have him evaluated for disability benefits. Tr. 570
(“The patient’s mother is concerned that the patient sustained a TBI in ’95 from a result of an
assault at age 17 when he was hit in the head with a tree [branch]. The patient’s mother’s
concerns are that the patient has not been able to keep a job and she feels this is related to his
TBI. She is requesting a referral to a neurologist for a re-evaluation.”).

4 See, e.g., Tr. 255 (“I get dressed and driven to Strong Recovery for my methadone dose (6 days/week.”). The
Court recalls seeing a treatment note indicating that Plaintiff eventually began attending the methadone clinic just
once per week, where he was given a week’s supply of methadone.

6
On October 9, 2017, neurologist Mary Lynne Dombovy, M.D. (“Dombovy”) examined
Plaintiff and noted, “Seems a bit slow; memory mildly impaired. Poor eye contact. Behavior a
bit delayed.’ Tr. 453. Dombovy reported that Plaintiff was complaining of impaired memory,
anxiety, panic attacks and insomnia. Tr. 451, 453. Dombovy further stated:

He has sustained a significant TBI. He seems slowed and has some memory
deficits on clinical exam. As there is some premorbid [(pre-injury)] cognitive and
behavioral issues, neuropsychological testing is needed to clarify diagnosis,
prognosis and will serve to guide medical management.

Tr. 455.
In January 2018, neuropsychologist Krista Damann, Ph.D. (“Damann”) evaluated Plaintiff
upon referral from Dombovy. Damann evaluated Plaintiff over the course of two sessions, since
Plaintiff indicated that he became fatigued during the first session. Tr. 439 (“He states, ‘Four
hours? I can’t do anything for 4 hours.’”). Plaintiff, who was then 39 years of age, reported a
history of “cognitive and emotional changes in the context of remote TBI, premorbid learning
disability/ADHD, substance abuse, depression and anxiety.” Tr. 434. Plaintiff complained of the
following symptoms: short-term memory problems; difficulty concentrating; panic and anxiety;
low mood; and irritability. Tr. 435-436. Plaintiff indicated that his mother prepared his
medications and reminded him to take them, made his medical appointments, financially
supported him and took care of the house. Tr. 436. Plaintiff indicated that took care of “the
outside tasks around the house” and “spen[t] a lot of time playing video games.” Tr. 436.
Plaintiff told Damann that he had been taking methadone for fifteen years and that he
used marijuana daily for anxiety. Tr. 438. Plaintiff also stated that his methadone treatment clinic
had required him to wean himself from Klonopin, but that he was still using Klonopin without a

7
prescription. Tr. 438.
Damann administered a battery of tests, and reported the following findings, in pertinent
part: Plaintiff’s pre-injury functioning was in the low average range; his IQ was in the low average
range; his math functioning was in the low average range, and his reading fluency was more

impaired; he exhibited signs of depression and anxiety; he experienced significant negative
consequences from his use of drugs; he had problematic personality traits; and he was unusually
concerned about his physical health despite not pursuing a healthy lifestyle. Damann’s
diagnoses included diffuse traumatic brain injury with loss of consciousness of unspecified
duration, mild neurocognitive disorder due to traumatic brain injury, learning disabilities, major
depressive disorder, recurrent, moderate, anxiety disorder and cannabis abuse. Tr. 446.
Regarding Plaintiff’s use of marijuana, Damann commented that while Plaintiff believed it helped
him to focus and manage anxiety, it was “quite possible that his continued use actually
contribute[d] to negative cognitive side effects.” Tr. 445. As for her recommendations, Damann
indicated, in pertinent part, that she did not think Plaintiff was employable:

Mr. [H]’s test results, emotional functioning, and prior work history indicate that he
is not appropriate for full-time employment. He states that he has previously
worked with ACCES-VR [(a New York State vocational agency)] and did not find
the services to be particularly helpful. He is a viable candidate for disability
benefits related to his learning disability and cognitive deficits due to TBI.

Tr. 446.
Apart from the evidence of his limitations, the record also indicates that Plaintiff appears
to have little motivation or actual need to work, since his mother supports him financially, allows
him to live with her, and does most of the shopping, cooking and household chores. Plaintiff
and his mother, though, genuinely seem to believe that he is incapable of working, blaming the

8
traumatic brain injury and citing the fact that he has been fired from every job he has ever had.
Tr. 847.
On March 27, 2018, Plaintiff filed the subject application for SSI benefits. Plaintiff claims
to have become disabled on that same date, March 27, 2018, the amended alleged onset date.5

The Social Security Administration (“SSA”) representative who interviewed Plaintiff in connection
with his application reported that he appeared to have difficulty with understanding, coherency,
concentrating, talking and answering. Tr. 241.
On April 10, 2018, Plaintiff submitted a functional report that was completed largely, if not
entirely, by his mother, and signed by Plaintiff. Tr. 255-266, 274. The report indicates that
Plaintiff is capable of performing the following activities: personal care, including dressing,
bathing, shaving and feeding himself;6 driving a car; shopping in a supermarket; traveling
independently; taking walks outside; mowing the lawn; caring for his dog;7 cooking; and
performing “small repairs.”8 Plaintiff indicated that his activities included watching television,
playing video games, watching Youtube videos, talking on the phone and occasionally visiting

with friends. Plaintiff indicated that he had no problem getting along with people and had never
lost a job due to inability to get along with others. Tr. 260, 262. Plaintiff stated that he “sle[pt] a
lot,” depending on his emotional state. Tr. 256. Plaintiff reported that his mother reminded him

5 ECF No. 16-1 at p. 1.
6 The report expressly indicated that Plaintiff needed no “help or reminders” to perform his personal care routine.
Tr. 256, 257.
7 Plaintiff later testified that he lets the dog in and out of the house, but that his mother feeds the dog. Tr. 256.
This is one of many activities, along with cooking and driving, which Plaintiff appears capable of performing, but
does not since his mother usually does it for him.
8 In one office treatment note, Plaintiff indicated that his father, with whom he does not live, was upset with him
because he had used his father’s welding equipment while his father was away.

9
to take his medications each day. 9 As far as limitations, Plaintiff indicated that his
“organizational skills are lacking”; he is not responsible handling money; he has a hard time
staying focused on tasks without his mind wandering; and he has “daily” panic attacks and
anxiety in response to stress, with the attacks lasting, on average, “4 to 5 min[utes]” Tr. 265.

On May 15, 2018, psychologist Adam Brownfeld, Ph.D. (“Brownfeld”) conducted a
consultative psychiatric evaluation of Plaintiff at the Commissioner’s request. Tr. 693-697.
Brownfeld reported that Plaintiff had been in special education classes due to learning
disabilities, had suffered a TBI, had lost many jobs and had been seeing a mental health
counselor for years. Tr. 693. Brownfeld noted that Plaintiff was reporting symptoms including
anxiety, excessive worry, sad moods, crying spells, loss of usual interest in things, social
withdrawal, lack of ambition, loneliness, inability to concentrate and poor memory. Tr. 693-694.
Regarding activities of daily living, Plaintiff essentially reported the same activities that had been
listed in the functional report completed a month earlier, as discussed above. Upon
examination, Brownfeld reported essentially normal mental-status examination findings

including appropriate eye contact, fluent speech, euthymic mood, full affect, good insight, good
judgment, and intact attention, concentration and memory. Tr. 694-695. Brownfeld estimated
that Plaintiff’s cognitive functioning was in the “low average to borderline range.” Tr. 695. For
his medical source statement, Brownfeld indicated that Plaintiff would have the following abilities
and limitations: Unlimited ability to understand, remember and apply simple instructions, use
reasoning and judgment to make work-related decisions, maintain personal hygiene, be aware

9 At the administrative hearing, Plaintiff indicated that he did not need reminders to take his diabetes medication,
since he did not feel well if he forgot to take it.

10
of normal hazards; moderately limited ability to interact appropriately with others, regulate
emotions, control behavior and maintain well-being; and mildly limited ability to sustain
concentration, perform tasks at a consistent pace, sustain an ordinary routine, maintain regular
attendance at work, and apply complex directions and instructions. Tr. 695-696.

On July 19, 2019, mental health therapist Barbara Bush, LCSW-R (“Bush”), who had been
treating Plaintiff for approximately six weeks, completed a mental impairment questionnaire. Tr.
938-942. Bush’s primary diagnoses were “r/o [(rule out)] bipolar disorder, r/o personality
disorder.” Tr. 938. Bush stated that Plaintiff was not taking any mental health medications,
though presumably he was still using marijuana and non-prescribed klonopin.10 Bush indicated
that Plaintiff cannot focus, does not take social cues, is constantly preoccupied and worried,
cries easily or becomes angry, gets easily agitated dealing with people and does not feel safe
leaving home except in the middle of the night. Bush checked boxes on the form indicating the
presence of the “paragraph C” factors used by ALJs at step three of the five-step sequential
evaluation to evaluate mental impairments. Tr. 940. Bush further indicated that Plaintiff would

only occasionally be able to exhibit most of the mental abilities needed to do unskilled work, and
that he could never work around other persons without being unduly distracted, complete a
normal workday or workweek without interruptions from mental health symptoms, perform at a
consistent pace, accept instructions and criticism from supervisors, get along with co-workers,
interact with the public or maintain socially appropriate behavior. Tr. 941.
On July 24, 2019, a hearing was held before an ALJ, at which Plaintiff appeared with his
attorney, and at which Plaintiff, his mother and a vocational expert (“VE”) testified.

10 Bush notes that Plaintiff admitted to using marijuana, but does not mention klonopin. Tr. 942.

11
On October 10, 2019, the ALJ issued a decision finding that Plaintiff was not disabled at
any relevant time. In pertinent part the ALJ found that Plaintiff had severe mental impairments
consisting of traumatic brain injury, major depressive disorder, generalized anxiety disorder,
learning disorder, attention-deficit disorder, attention deficit hyperactivity disorder, and mild

neurocognitive disorder, in addition to severe physical impairment consisting of obesity and
diabetes. Tr. 18. However, the ALJ further found that such impairments did not meet or
medically equal a listed impairment; that Plaintiff had the RFC to perform a full range of work at
all exertional levels, provided that it did not involve production-rate work and involves only simple
instructions, simple work-related decisions, only occasional changes in routine work setting and
only occasional interaction with coworkers and the public, Tr. 20; that Plaintiff had no past
relevant work; and that Plaintiff could perform jobs existing in significant numbers in the national
economy, Tr. 25. The ALJ consequently concluded that Plaintiff was not disabled.
In reaching that determination the ALJ discussed the evidence of record and noted that
Plaintiff was claiming that his symptoms were of disabling severity. In that regard the ALJ

discussed the hearing testimony of Plaintiff and his mother. The ALJ further noted that there
were medical opinions indicating that Plaintiff was incapable of full-time employment. And,
indeed, the ALJ agreed that Plaintiff’s claimed limitations were “somewhat supported by the
record.” Tr. 21. However, the ALJ found that Plaintiff’s claimed limitations, and the opinions of
the medical sources who indicated that Plaintiff was incapable of working, were not entirely
consistent with the record overall or persuasive. On this point, the ALJ cited and discussed
evidence purportedly showing that Plaintiff was less limited than he claimed, including Plaintiff’s
own written functional report (Exhibit 5E) and his statements to treatment providers about his

12
activities (Exhibit 5F at pp. 19, 27, 30, 31 & 32)11; office notes from treatment providers showing
consistently normal mental status examination findings (Exhibits 2F, 5F, 6F, 7F & 16F); and the
report of consultative psychologist Brownfeld (Exhibit 9F).
Of particular relevance to this action, at step three of the sequential evaluation, the ALJ

found that none of Plaintiff’s severe impairments, either singly or in combination, met or medically
equaled a listed impairment. Regarding the mental impairments, the ALJ indicated that he had
considered listings 12.02 (neurocognitive disorders), 12.04 (depressive, bipolar and related
disorders), 12.06 (anxiety and obsessive-compulsive disorders) and 12.11 (neurodevelopmental
disorders) and found that Plaintiff did not satisfy either the “paragraph B” criteria or the
“paragraph C” criteria for those listings. With regard to the paragraph C criteria, the ALJ stated:
I have also considered whether the “paragraph C” criteria are satisfied. In this
case, the evidence fails to establish the presence of the “paragraph C” criteria.
The claimant reported no problems with self-care activities. The claimant also
reported that he is able to perform yard work, can prepare meals, has a driver’s
license, and can shop for groceries (5E). Furthermore, the evidence does not
reveal the claimant has participated in any work programs or required the use of a
job coach or supervisor, received comprehensive 24/7 wrap around mental health
services, resided in a halfway house or in another highly supportive living
arrangement, attended or been referred to a partial hospitalization program, ever
had a psychiatric hospitalization, or required the assistance from mental health
workers to meet physical needs.

Tr. 20.

11 Plaintiff mentioned, for example, his relationship with his girlfriend; that he was implementing coping skills
which he found helpful; that he had used his father’s welding equipment while his father was away in Florida
(which would have involved Plaintiff traveling to his father’s house); and that he was becoming bored staying at
home and looked forward to going to group substance abuse therapy and keeping busy to reduce anxiety.

13
In this action, Plaintiff contends that the Commissioner’s decision denying benefits must
be reversed since the ALJ’s determination at step three of the sequential evaluation, concerning
Plaintiff’s mental impairments, is erroneous and not supported by substantial evidence.
Specifically, Plaintiff contends that the ALJ erred in finding that Plaintiff did not satisfy the

paragraph C criteria with regard to Listings 12.02, 12.04 and 12.06, since his analysis “contains
several factual errors and was not based on substantial evidence.”12
Defendant disputes Plaintiff’s arguments and maintains that the ALJ’s decision is free of
reversible legal error and supported by substantial evidence.
The Court has carefully reviewed and considered the parties’ submissions.
DISCUSSION
The ALJ’s Analysis of the Paragraph C Criteria at Step Three
of the Sequential Evaluation
As just mentioned, “Plaintiff argues that the ALJ’s evaluation of the ‘paragraph C’ criteria
contains several factual errors and was not based on substantial evidence, which requires
remand.”13 Plaintiff is claiming, in this regard, that he meets the requirements for listings 12.02,
12.04 and/or 12.06 by satisfying both the paragraph A criteria and the paragraph C criteria.14

The parties do not dispute that Plaintiff meets the paragraph A criteria, rather, the issue is only
with regard to paragraph C. On this point, Plaintiff states:
“The criterion in C1 is satisfied when the evidence shows that you rely, on an
ongoing basis, upon medical treatment, mental health therapy, psychosocial

12 ECF No. 16-1 at p. 23.
13 ECF no. 16-1 at p. 23.
14 Those listings may be satisfied by meeting the requirements of either paragraphs A and B or paragraphs A and
C. Plaintiff does not argue here that he meets the requirements of paragraph B.

14
support(s), or a highly structured setting(s), to diminish the symptoms and signs of
your mental disorder.” Id. at §12.00(G)(2)(b). “The criterion in C2 is satisfied when
the evidence shows that, despite your diminished symptoms and signs, you have
achieved only marginal adjustment” (i.e. fragile adaptation to the requirements of
daily life, minimal capacity to adapt to changes in environment or to demands that
are not already part of daily life). Id. at §12.00(G)(2)(c).
ECF No. 16-1 at p. 23. Plaintiff maintains that he satisfies paragraph C1 since throughout the
relevant period he received ongoing mental health therapy that diminished the symptoms and
signs of his mental disorders. Plaintiff contends that he also satisfies paragraph C2, since,
despite such therapy, he is unable to adapt to changes, as shown by the fact that he essentially
needs his mother to take care of him and remind him to take medications, and that despite her
efforts he still has poor personal hygiene.15 Plaintiff alleges that, to the extent the ALJ found that
Plaintiff is capable of adapting to changes, the ALJ overlooked or “distorted evidence,” such as
by ignoring Plaintiff’s hearing testimony about needing his mother to prompt him to perform self-
care activities. Plaintiff also contends that the ALJ overstated the extent to which he is capable
of independently performing tasks such as cooking, driving, shopping and performing yard work.
Alternatively, Plaintiff alleges that the ALJ erred by failing to adequately discuss the conflicting
evidence that he considered when making his finding regarding the paragraph C criteria.
In response, Defendant does not dispute that Plaintiff satisfies the paragraph C1 criteria.16
However, Defendant maintains that the ALJ properly found that Plaintiff did not meet the
paragraph C2 criteria, since Plaintiff did not demonstrate that he has only “marginal adjustment.”

15 Plaintiff’s mother indicates, for example, that Plaintiff may go days without changing his clothes. However, the
Court recalls that somewhere in the record, Plaintiff explains away his hygiene practices by indicating that he and
his mother simply have different standards of cleanliness.
16 ECF No. 19-1 at p. 10.

15
More specifically, Defendant contends that Plaintiff cannot show “marginal adjustment” where,
as here, the record indicates that he could independently perform a wide range of activities. See,
Def. Memo of Law, ECF No. 19-1 at p. 14 (“[A]s the ALJ discussed, Plaintiff independently
performed a wide range of activities despite receiving some assistance from family, and

therefore did not demonstrate marginal adjustment or satisfy the paragraph C criteria.”).
Defendant further contends that the ALJ adequately discussed the evidence that he relied on in
making his determination regarding the paragraph C criteria. Defendant points out, in this
regard, that the ALJ was not required to credit the hearing testimony of Plaintiff’s mother, which
contradicted the statements in Plaintiff’s functional report indicating that Plaintiff was capable of
independently performing all self-care activities. Id.at 15 (“[T]he testimony provided by Plaintiff’s
mother directly contradicts her 2018 report that Plaintiff had no problems with personal care, did
not need special help or reminders to take care of personal needs and grooming, completed
yard work and small repair projects, counted change, went shopping in grocery stores and went
out alone.”). Defendant also notes that the ALJ’s paragraph C finding is supported by the

opinion of a state-agency review physician who concluded that the evidence did not establish
the paragraph C criteria.
Regarding the precise issue raised by Plaintiff the applicable legal principles have been
stated as follows:

Paragraph C . . . requires that:
Your mental disorder in this listing category is “serious and persistent;” that
is, you have a medically documented history of the existence of the disorder
over a period of at least 2 years, and there is evidence of both:

16
1. Medical treatment, mental health therapy, psychosocial support(s), or a
highly structured setting(s) that is ongoing and that diminishes the symptoms
and signs of your mental disorder (see 12.00G2b); and
2. Marginal adjustment, that is, you have minimal capacity to adapt to
changes in your environment or to demands that are not already part of your
daily life (see 12.00G2c).
Id. §§ 12.04.C, 12.06.C. The regulations clarify that the criterion in Paragraph C1
is met, in relevant part:
when the evidence shows that you rely, on an ongoing basis, upon medical
treatment, mental health therapy, psychosocial support(s), or a highly
structured setting(s), to diminish the symptoms and signs of your mental
disorder (see 12.00D). We consider that you receive ongoing medical
treatment when the medical evidence establishes that you obtain medical
treatment with a frequency consistent with accepted medical practice for the
type of treatment or evaluation required for your medical condition.
Id. § 12.00G.2.b. The regulations clarify that the Paragraph C2 criterion is met:
when the evidence shows that, despite your diminished symptoms and signs,
you have achieved only marginal adjustment. “Marginal adjustment” means
that your adaptation to the requirements of daily life is fragile; that is, you
have minimal capacity to adapt to changes in your environment or to
demands that are not already part of your daily life. We will consider that you
have achieved only marginal adjustment when the evidence shows that
changes or increased demands have led to exacerbation of your symptoms
and signs and to deterioration in your functioning; for example, you have
become unable to function outside of your home or a more restrictive setting,
without substantial psychosocial supports (see 12.00D). Such deterioration
may have necessitated a significant change in medication or other treatment.
Similarly, because of the nature of your mental disorder, evidence may
document episodes of deterioration that have required you to be hospitalized
or absent from work, making it difficult for you to sustain work activity over
time.
Id. § 12.00G.2.c. The regulations include examples of psychosocial supports, such
as the help of family members who aid a claimant in his or her basic functioning
and daily activities, participation in programs that provide instruction in entry-level
work skills and daily living, the receipt of “comprehensive ‘24/7 wrap-around’

17
mental health services,” residence in a hospital or institution that provides 24-hour
care, and receipt of “assistance from a crisis response team, social workers, or
community mental health workers” who help the claimant with his or her physical
needs. Id. § 12.00D.1. The regulations also recognize that a claimant can meet
this standard if he lives alone and does not receive psychosocial supports but has
instead “created a highly structured environment by eliminating all but minimally
necessary contact with the world outside [his] living space.” Id. “Courts in this
Circuit routinely have found that no reasonable fact finder could conclude that a
plaintiff could meet this standard when, inter alia, the plaintiff functioned mostly
independently, including by shopping, going online, traveling independently and
managing money, and was observed to have goal-directed thoughts.” Campbell v.
Comm'r of Soc. Sec., No. 1:19-CV-03215 (SDA), 2020 WL 5641200, at *12
(S.D.N.Y. Sept. 22, 2020) (citing cases).
Gibson v. Saul, No. 3:20-CV-00145 (KAD), 2021 WL 371577, at *4–5 (D. Conn. Feb. 3, 2021).
Moreover, an ALJ is not required to provide a lengthy discussion of the reasons for his
step three finding:
[A]n ALJ is not required to “articulate specific evidence supporting his or her finding
that [a claimant's] impairment[ ] does not medically equal a listed impairment.” See
SSR 17-2p, 2017 WL 3928306 at *4. Rather, “a statement that the [claimant's]
impairment[ ] does not medically equal a listed impairment” will generally constitute
sufficient articulation for the ALJ's finding. Id. The ALJ's articulation of the reasons
for her conclusion that the claimant is not disabled in the remaining steps of the
sequential evaluation should “provide [a] rationale that is sufficient for a
subsequent reviewer or court to determine the basis” for the step-three medical
equivalence conclusion. Id.
John H. v. Comm'r of Soc. Sec., No. 20-CV-1278MWP, 2022 WL 748237, at *6 (W.D.N.Y. Mar.
11, 2022).
Here, the Court finds that the ALJ’s finding regarding the paragraph C criteria was not
erroneous and is supported by substantial evidence. More specifically, the finding is supported
by Exhibit 5E, Plaintiff’s functional report dated April 10, 2018, discussed above, which the ALJ

18
cited. Tr. 20. In the functional report, Plaintiff indicated that he is able to perform all personal
care activities without assistance or reminders, cook, perform yard work, perform small repair
jobs, drive a car,'” shop for groceries once every other week, travel to substance abuse
treatment and go out with a girlfriend.’® Plaintiff's ability to perform these activities shows that
he achieved more than marginal adjustment from his ongoing treatment. To the extent that
Plaintiff and his mother testified at the hearing that Plaintiff was more seriously limited than what
was stated in the functional report, the ALJ was not required to credit such testimony.

CONCLUSION
For the reasons discussed above, Plaintiff's motion for judgment on the pleadings (ECF
No. 16) is denied and Defendant's cross-motion for the same relief (ECF No. 19) is granted.
The Clerk of the Court is directed to enter judgment for Defendant and to close this action.
So Ordered.
Dated: Rochester, New York
March 31, 2022
ENTER:

: x NOQ?Y
CHARLES po
United States District Judge

17 Plaintiff reportedly told therapist Burke that he only felt safe leaving his house in the middle of the night, Tr.
938, which, if true, provides further evidence of Plaintiff's independence since there is no indication that his
mother would accompany him on such excursions. Tr. 938.
18 The record indicates that this relationship lasted at least three years and was sexual in nature. Tr. 453. Exhibit
5F contains many additional notations regarding this relationship. In the functional report, Plaintiff indicated that
he had stopped seeing his girlfriend, Tr. 260, but not because of his mental limitations. Rather, a treatment note
implied that Plaintiff broke up with her because she changed after she started using drugs. Tr. 491.
19

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364866. Public record. Not legal advice.