Munnings v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

CATHERINE M.,1

Plaintiff, DECISION AND ORDER

-vs-

21-CV-6283 (CJS)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

________________________________________

I. INTRODUCTION

In March 2021, Catherine M. (“Claimant”) filed this action pursuant to 42 U.S.C.

§ 405(g), seeking judicial review of the Commissioner of Social Security’s

(“Commissioner”) denial of her applications for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”). Compl., Mar. 29, 2021, ECF No. 1. Both parties

moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).

Pl.’s Mot., Jan. 31, 2022, ECF No. 14; Def.’s Mot., Mar. 31, 2022, ECF No. 17. For the

reasons set forth below, Claimant’s motion for judgment on the pleadings [ECF No. 14]

is granted only to the extent that the matter is remanded for further administrative

proceedings consistent with this decision and order. The Commissioner’s motion [ECF

No. 17] is denied. The Clerk of Court is directed to close this case.

II. BACKGROUND

The Court assumes the reader’s familiarity with the facts and procedural history in

1 The Court’s Standing Order issued on November 18, 2020, directs that, “in opinions filed pursuant to . . .

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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this case, and therefore addresses only those facts and issues which bear directly on the

resolution of the motions presently before the Court.

A. Claimant’s Applications

Claimant filed applications for DIB and SSI benefits in November 2017, alleging a

disability onset date of September 16, 2017. Transcript (“Tr.”), 205 and 207,2 Aug. 17,

2021, ECF No. 9. She listed multiple physical and mental conditions that she claimed

limited her ability to work: peripheral neuropathy, fibromyalgia, back problem, asthma,

high cholesterol, depression, acid reflux, anxiety, high blood pressure, and a foot issue.

Tr. 251. In March 2018, Claimant was found “not disabled,” and her claims for DIB and

SSI benefits were denied. Tr. 90. Claimant requested a reconsideration of the initial

determination and, after a review of the evidence in her case record by both a state

agency psychological consultant (Tr. 101–02) and a state agency medical consultant (Tr.

105–06) in April 2018, Claimant was again found “not disabled.” Tr. 109.

B. Claimant’s Hearings Before the ALJ

After the Commissioner denied her applications at the initial level, Claimant

appeared with counsel on April 16, 2020 for a hearing before an Administrative Law Judge

(“ALJ”). Tr. 36. In his opening remarks, Claimant’s counsel stated the following:

. . . It’s very difficult in this case to focus on any one thing. There’s numerous

issues up to and including now home care . . . .

* * *

There is . . . some botched surgeries or problems with her feet . . . . some

neuropathy . . . . lifting and bending restrictions resulting from those issues

. . . a[n] application for a handicapped permit because the Claimant’s unable

to walk more than 200 feet at any one time . . . . Add that all up physically

2 The page references from the transcripts are to the bates numbers inserted by the Commissioner, not

the pagination assigned by the Court’s CM/ECF electronic filing system.

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with the mental assessments . . . where it’s clear there are severe problems

. . . . in my opinion, is at a listing level . . . .

Tr. 43–44 (internal citations to the record omitted).

Claimant testified that she is 50 years old, a high school graduate, and can read,

write, do simple math, and handle money. Tr. 45–48. She stated that she has been

married for almost 17 years, and has two children and a husband, who works as a

chemical processor for Eastman Kodak. Tr. 46. When the ALJ asked Claimant herself

what prevents her from working a full-time job, Claimant identified “[t]he inability to sit in

a chair for long periods of time . . . . carpal tunnel in [her] hands, in [her] wrists, neuropathy

in [her] feet and [her] . . . lower back.” Tr. 48. She stated that she can only sit for about

two hours at a time, can only stand or walk for about 20 minutes, only sleeps between

four and five hours a night, and smokes a pack of cigarettes a day. Tr. 48–50. She said

she takes hydrocodone for degenerative disc disease, Xanax for anxiety, Zoloft for

depression, blood pressure medicine, medicine to reduce cholesterol, cyclobenzaprine

for pain, amitriptyline, and has an inhaler for her asthma. Tr. 49.

In addition to her physical impairments, Claimant’s counsel asked her about her

mental impairments. Claimant testified that she had attempted suicide and was

hospitalized for a night in 1999 or 2000, and has had “a few” panic attacks in which she

gets “clammy and nervous,” most recently a year before the hearing. Tr. 51–52. She

stated that she experiences general nervousness (Tr. 51), and sometimes has trouble

following through on tasks that she starts. Tr. 52. However, she also stated that she does

not have trouble understanding or following directions, making her own decisions,

agreeing with authority figures, paying attention, or keeping appointments. Tr. 52. She

said she has a good relationship with her friends and family, “usually got along good with

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[her] coworkers” but sometimes had misunderstandings, and sometimes has a problem

remembering things. Tr. 53–55. In 2007 she saw a therapist for three months regarding

communication issues she was having with her husband, but is being treated for anxiety

and depression by “just [her] primary care doctor.” Tr. 54. She said that she went to her

doctor for help controlling mood swings she was having, and that she does not have them

when on the medication. Tr. 55.

With respect to her activities of daily living, Claimant testified that she lives at home

with her husband and one of her children. Tr. 57. She stated that her husband does the

cooking, cleaning, laundry, taking care of their disabled daughter, and taking care of the

dogs. Tr. 57. Claimant cannot drive or go shopping alone, and has to use a motorized

scooter while her husband helps her get things off the shelf. Tr. 56–57. She said she

doesn’t go out to church or to clubs, goes shopping only about once a month, and only

goes to her friend’s house to socialize once every three months. Tr. 57. On a typical day,

she gets up, has coffee, watches TV, interacts with her animals and husband when he’s

home, and then goes to bed. Tr. 58. She stated that she can pick up five pounds at the

most, and has trouble bending over and sometimes can’t feel her fingers. Tr. 59. She can

bathe and dress herself, but has trouble getting in and out of the bathtub or shower. Tr.

60. Her doctor prescribed her a “knee scooter” to use in her home because her right leg

is non-weight bearing at present. Tr. 61.

In addition to Claimant’s testimony, the ALJ also took testimony from an impartial

vocational expert (VE) at the hearing. The VE classified Claimant’s work at various jobs

from 2005 to 2008 as “customer service representative,” her work at Volt Technology from

2008 to 2009 as an accounting clerk, and her work at the University of Rochester from

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2009 to 2017 as a hospital insurance clerk. Tr. 64–66. In response to a hypothetical

proposed by the ALJ that involved sedentary exertional work levels with limitations similar

to those eventually reflected in Claimant’s RFC, the VE testified that Claimant could both

do her past relevant work, and perform a number of other positions available in the

national economy. Tr. 68–69.

C. The ALJ’s Decision

On April 29, 2020, the ALJ issued a decision finding that Claimant was not

disabled, and therefore did not qualify for DIB or SSI benefits. Tr. 27.

At the outset, the ALJ found that Claimant met the insured status requirements for

DIB benefits 3 through December 31, 2022. Tr. 18. Then, at step one of the

Commissioner’s “five-step, sequential evaluation process,”4 the ALJ found that Claimant

had not engaged in substantial gainful activity since the alleged onset date of September

16, 2017. Tr. 19.

3 Claimants must meet the insured status requirements of the Social Security Act to be eligible for DIB

benefits. See 42 U.S.C. § 423(c); 20 C.F.R. § 404.130.

4 In addition to the insured status requirements for DIB benefits, the Social Security Administration has

outlined a “five-step, sequential evaluation process” that an ALJ must follow to determine whether a

claimant has a “disability” under the law:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the

claimant has a severe impairment or combination of impairments; (3) whether the

impairment meets or equals the severity of the specified impairments in the Listing of

Impairments; (4) based on a “residual functional capacity” assessment, whether the

claimant can perform any of his or her past relevant work despite the impairment; and (5)

whether there are significant numbers of jobs in the national economy that the claimant

can perform given the claimant’s residual functional capacity, age, education, and work

experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir.

2008); 20 C.F.R. § 404.1520(a)(4)(i)–(v), § 416.920(a)(4)(i)–(v)). The claimant bears the burden of proof

for the first four steps of the process. 42 U.S.C. § 423(d)(5)(A); Melville v. Apfel, 198 F.3d 45, 51 (2d Cir.

1999). At step five, the burden shifts to the Commissioner to demonstrate that there is other work in the

national economy that the claimant can perform. Poupore v. Asture, 566 F.3d 303, 306 (2d Cir. 2009).

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At step two, the ALJ determined that Claimant has had the following severe

impairments: degenerative disc disease of the lumbar spine, idiopathic peripheral

neuropathy, degenerative joint disease of the knees, asthma, and status-post surgery for

an infection in the heel of her right foot. Tr. 19. He found that Claimant’s medically

determinable physical impairment of mild bilateral carpal tunnel syndrome was non-

severe. In addition, after performing the “special technique” required under 20 C.F.R.

§ 404.1520a and § 416.920a for all mental impairments,5 the ALJ concluded that

Claimant’s medically determinable mental impairments of depression and somatic

symptoms disorder were non-severe because Claimant had only mild limitations in the

four functional areas of ability to understand, remember or apply information; to interact

with others; to adapt or manage herself; and to concentrate, persist, or maintain pace. Tr.

20.

At step three, the ALJ found that the severity of Claimant’s impairments did not

meet or medically equal the criteria of listings in 20 C.F.R. Part 404, Subpart P, Appendix

5 When a claimant alleges a mental impairment, the Commissioner’s regulations require the ALJ to apply

a “special technique” at the second and third steps of the five-step evaluation process. Petrie v. Astrue, 412

F. App’x 401, 408 (2d Cir. 2011) (citing 20 C.F.R. § 404.1520a). First, the ALJ must evaluate the claimant

using “Paragraph A” criteria to evaluate the claimant’s pertinent symptoms, signs, and laboratory findings

and determine whether he or she meets the requirements of one of the mental impairments listed in 20

C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00 (“App’x 1, § 12.00”). See 20 C.F.R. § 404.1520a(b)(1);

§ 416.920a(b)(1). If the claimant does have such an impairment, the ALJ must assess the claimant’s

limitations in four broad areas of mental functioning that constitute the Paragraph B criteria: (1) understand,

remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4)

adapt or manage oneself (collectively, the “Paragraph B criteria”). 20 C.F.R. § 404.1520a(c)(3);

§ 416.920a(c)(3).

The ALJ must rate the degree of the claimant’s limitation in each of the Paragraph B criteria using a five-

point scale: none, mild, moderate, marked, or extreme. 20 C.F.R. § 404.1520a(c)(4); § 416.920a(c)(4). To

satisfy the “Paragraph B” criteria, a claimant’s mental disorder must result in extreme limitation of one, or

marked limitation of two, of the four criteria. App’x 1, § 12.00F(2). After rating the degree of functional

limitation resulting from the claimant’s mental impairment(s), the ALJ must then determine the severity of

the mental impairment(s). 20 C.F.R. § 404.1520a(d); § 416.920a(d).

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1, including Listing 1.04 – Disorders of the spine, and Listing 3.03 - Asthma. Tr. 21. Then,

before proceeding to step four, the ALJ carefully considered the entire record and

determined that Claimant had the residual functional capacity6 (“RFC”) to perform

sedentary work as defined in 20 C.F.R. § 404.1567(a) and § 416.967(a), with the following

limitations:

[She] can never climb ladders, ropes, or scaffolds, kneel, crouch, or crawl.

The claimant can frequently climb ramps or stairs or stop. The claimant

must avoid concentrated exposure to extreme heat and cold, wetness,

humidity, or respiratory irritants.

Tr. 22 (footnotes omitted).

At step four, the ALJ found that Claimant is capable of performing her past relevant

work as an insurance clerk, accounting clerk, and the composite job of a customer service

representative and telecommunicator. Tr. 25. At step five, after considering the Medical-

Vocational Guidelines, the ALJ found that in addition to past relevant work, there are other

jobs that exist in significant numbers in the national economy that Claimant can perform

based on her age, education, work experience, transferrable skills, and RFC: data entry

clerk, data examination clerk, and sorter. Tr. 27. Therefore, the ALJ found that Claimant

was not disabled, and not entitled to DIB or SSI benefits. Id.

On January 28, 2021, the Commissioner’s Appeals Council denied Claimant’s

request to review the ALJ’s decision. Tr. 1. The ALJ’s decision thus became the “final

decision” of the Commissioner.

III. LEGAL STANDARD

Under 42 U.S.C. § 423(d), a claimant is disabled and entitled to disability insurance

6 “Residual functional capacity” (“RFC”) means the most that the claimant can still do in a work setting

despite the limitations caused by the claimant’s impairments. 20 C.F.R. § 404.1545, § 416.945.

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benefits if he or she is unable “to engage in any substantial gainful activity by reason of

any medically determinable physical or mental impairment which can be expected to

result in death or has lasted or can be expected to last for a continuous period of not less

than 12 months.” 42 U.S.C. § 405(g) defines the process and scope of judicial review of

the Commissioner’s final decision as to whether a claimant has a disability that would

entitle him or her to an award of benefits. The fourth sentence of § 405(g) empowers the

reviewing court to enter “a judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the cause for a rehearing.”

The sixth sentence authorizes the reviewing court to “order additional evidence to be

taken before the Commissioner of Social Security . . . upon a showing that there is new

evidence which is material and that there is good cause for the failure to incorporate such

evidence into the record in a prior proceeding.” See Tirado v. Bowen, 842 F.2d 595 (2d

Cir. 1988) (discussing § 405(g)).

“The entire thrust of judicial review under the disability benefits law is to ensure a

just and rational result between the government and a claimant, without substituting a

court’s judgment for that of the [Commissioner], and to reverse an administrative

determination only when it does not rest on adequate findings sustained by evidence

having rational probative force.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)

(internal citation and quotation marks omitted). Therefore, it is not the reviewing court’s

function to determine de novo whether the claimant is disabled. Brault v. Soc. Sec.

Admin., Comm’r, 683 F.3d 443, 447 (2d Cir. 2012). Rather, “[t]he threshold question is

whether the claimant received a full and fair hearing.” Morris v. Berryhill, 721 F. App’x 25,

27 (2d Cir. 2018). Then, the reviewing court must determine “whether the Commissioner

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applied the correct legal standard[s].” Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999).

Provided the claimant received a full and fair hearing, and the correct legal standards are

applied, the district court’s review is deferential: a finding by the Commissioner is

“conclusive” if it is supported by “substantial evidence.” 42 U.S.C. § 405(g).

“Whatever the meaning of ‘substantial’ in other contexts, the threshold for such

evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)

(noting that the phrase “substantial evidence” is a term of art used in reviewing

administrative agency decisions to signify evidence that amounts to “more than a mere

scintilla”). Thus, once an ALJ finds facts, a reviewing court can reject those facts “only if

a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448

(citation omitted). Yet although “the evidentiary threshold for the substantial evidence

standard is not high, . . . [it] is also not merely hortatory: It requires relevant evidence

which would lead a reasonable mind to concur in the ALJ’s factual determinations.”

Colgan v. Kijakazi, 22 F.4th 353, 359 (2d Cir. 2022) (quotation marks omitted).

IV. DISCUSSION

In her motion for judgment on the pleadings, Claimant presents three issues for

the Court’s review. Pl. Mem. of Law, Jan. 31, 2022, ECF No. 15. First, Claimant argues

that the ALJ’s RFC determination is the product of legal error because the ALJ failed to

properly evaluate the opinion evidence about Plaintiff’s mental impairments. Alternatively,

she argues that the RFC determination is unsupported by substantial evidence because

the ALJ failed to reconcile his step 2 mental limitation findings with the RFC. Lastly, she

maintains that the ALJ’s determination that Plaintiff is capable of performing sedentary

work is unsupported by substantial evidence. The Commissioner maintains that the ALJ

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did not commit legal error in her decision, and that the ALJ’s RFC determination was

based on substantial evidence. Def. Mem. of Law, Mar. 31, 2022, ECF No. 17-1. For ease

of discussion, the Court will address Claimant’s two arguments regarding the ALJ’s step

2 findings together.

A. The ALJ’s Step 2 Findings

At step 2 of the sequential evaluation process, the ALJ stated that Claimant’s

“medically determinable mental impairments of depression and a somatic symptoms

disorder, considered singly and in combination, do not cause more than minimal limitation

in the [C]laimant’s ability to perform basic mental work activities and are therefore

nonsevere.” Tr. 19. In justifying that conclusion, the ALJ observed that Claimant’s primary

care doctor – rather than a therapist, psychiatrist, or case manager – treats her for her

mental conditions, and discussed the opinions of consultative psychological examiner

Thomas Guidera, Ph.D., and state agency psychological examiner James G. Brown,

Ph.D. Tr. 19. The ALJ also stated that Claimant’s hearing testimony demonstrated that

she has only mild limitations in the four areas of mental functioning. Tr. 20.

Dr. Guidera opined in February 2018, in pertinent part, that Claimant “is likely to

have severe problems at potential places of work with potential employers, co-workers,

and the general public.” Tr. 969. However, in his decision the ALJ explained that he found

Dr. Guidera’s opinion unpersuasive for the following reasons:

The claimant told Dr. Guidera that her primary care provider had her on a

few mental health medications, but that she “does not have a relevant

psychiatric history” . . . . In terms of her daily activities, she stated that

usually she usually stays home and reads or watches television. On

examination, she demonstrated good abstract reasoning skills, good long-

term memory recall, and she could perform arithmetic skills of addition,

subtraction, and multiplication . . . . Overall, Dr. Guidera concluded that the

claimant would have “severe problems” in a work setting with concentration,

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focus, and attention as well as getting along with employers, coworkers, and

the general public. Dr. Guidera’s findings are inconsistent with the

claimant’s testimony at her April 16, 2020 hearing. When questioned with

regard to attention and concentration and getting along with employers

(authority figures) and coworkers, she testified that that she has no

difficulties in either area . . . .

Tr. 19–20 (internal citations to the record omitted).

Dr. Brown reviewed Claimant’s records in February and April 2018, and opined

both times that Claimant’s mental impairments were “severe,” and that she was

“moderately limited” with respect to her ability to complete a normal workday and

workweek without interruptions, and her ability to respond appropriately to critical

feedback from supervisors. Tr. 87–88. In his decision, the ALJ explained that he found

Dr. Brown’s opinions unpersuasive because:

the claimant receives no formal mental health treatment from a psychiatrist

or therapist and she acknowledges that she has no difficulty following

directions, maintaining attention and concentration, getting along with

employers or coworkers, or making her own decisions . . . .

Tr. 20 (internal citations to the record omitted).

In the motion now before the Court, Claimant argues that “the ALJ committed legal

error in evaluating the mental limitations opinions of Drs. Guidera and Brown, and

provided flawed and insufficient rationale for rejecting this probative evidence of

disability.” Pl. Mem. of Law at 18. Alternatively, Claimant argues that the ALJ’s RFC

determination is unsupported by substantial evidence because he failed to reconcile his

own step 2 mental limitations findings with the RFC. Pl. Mem. of Law at 19.

The ALJ’s Evaluation of the Opinion Evidence of Drs. Guidera and Brown

Under regulations effective for all claims filed after March 27, 2017, the ALJ is

required to apply 20 C.F.R. § 404.1520c and § 416.920c to evaluate opinion evidence in

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the record. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82

Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). § 404.1520c(c) and § 416.920c(c)

list a number of factors the Commissioner must consider, including: supportability,

consistency, the length and nature of the relationship of the source with claimant, the

source’s specialization, and other factors “that tend to support or contradict a medical

opinion . . . .”

As the Second Circuit has observed,

The [new] regulations explain that when “evaluat[ing] the persuasiveness of

medical opinions and prior administrative medical findings,” the “most

important factors . . . are supportability . . . and consistency.” Id. The

regulations further require the agency to “explain how [it] considered the

supportability and consistency factors for a medical source's medical

opinions or prior administrative medical findings in [its] determination or

decision.” Id. § 404.1520c(b)(2).

Loucks v. Kijakazi, No. 21-1749, 2022 WL 2189293, at *1 (2d Cir. June 17, 2022).

Under the new regulations, an ALJ’s failure to adequately explain how he or she

considered the supportability and consistency of a medical opinion in the record is

procedural error. Loucks, 2022 WL 2189293 at *2. Nevertheless, even if the ALJ commits

such an error, the reviewing court may affirm if “a searching review of the record assures

us ‘that the substance of the [regulation] was not traversed.’” Loucks, 2022 WL 2189293

at *2 (quoting Estrella v. Berryhill, 925 F.3d 90, 96 (2d Cir. 2019) (internal citation and

quotation marks omitted)). On the other hand, if the ALJ has not set forth “good reasons”

for finding an opinion unpersuasive, a reviewing court cannot conclude that the error was

harmless, and the matter must remanded for the ALJ to “comprehensively set forth its

reasons.” Claudio-Montanez v. Kijakazi, No. 21-2027, 2022 WL 17819123, at *2 (2d Cir.

Dec. 20, 2022).

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In the present case, the Court finds that the ALJ committed legal error by not clearly

articulating how he considered the factors of supportability and consistency in the

opinions of Drs. Guidera and Brown, respectively. However, after a searching review of

the record, the Court finds that the ALJ presented good reasons for finding the opinions

to be unpersuasive, and that the substance of the new regulations was not traversed.

In particular, the ALJ made multiple references to both the absence of a formal

mental health treatment record, and to Claimant’s hearing testimony. With respect to the

absence of a formal mental health treatment record, it is well settled that the ALJ is

“entitled to rely not only on what the record says, but also on what it does not say.” Dumas

v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983). What the record does not show is that

Claimant required or pursued any treatment that would indicate a severe impairment: she

did not receive any form of counseling for her depression or somatic symptoms disorder,

did not require “a battery of powerful psychoactive drugs, in various combinations,” and

was not subject to frequent – or any – psychiatric hospitalization. Compare Rivera v.

Comm'r of the Soc. Sec. Admin., No. 19CV4630LJLBCM, 2020 WL 8167136, at *15

(S.D.N.Y. Dec. 30, 2020), report and recommendation adopted sub nom. Rivera v.

Comm'r of Soc. Sec. Admin., No. 19-CV-4630 (LJL), 2021 WL 134945 (S.D.N.Y. Jan. 14,

2021). Rather, the record indicates that Claimant’s depressive disorder was “well

controlled” with medication, and that her primary care physicians’ treatment notes reflect

that Claimant demonstrated “normal” mood and “appropriate” affect at her office visits.

See, e.g., 542, 558, 561–62, 1050, 1098 (treating neurologist, Dr. Shenoy), 1113, 1185

(Dr. Ochoa in Florida), 1189, 1192. See also Thomas v. Comm’r of Soc. Sec. Admin., 479

F. Supp.3d 66, 84–88 (S.D.N.Y. Aug. 18, 2020).

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As it relates to Claimant’s hearing testimony, the ALJ rightly states that Dr.

Guidera’s findings that Claimant would have “severe problems” in a work setting were

“inconsistent.” Tr. 20. At the hearing, when asked what prevented her from working,

Claimant listed a litany of physical ailments, but did not mention her mental impairments.

Tr. 48. Additionally, she testified that she made one suicide attempt over 15 years prior

to the hearing, her last panic attack had occurred approximately one year before the

hearing, and she did not have trouble understanding directions, following directions,

agreeing with authority figures, paying attention, making and keeping appointments, or

making her own decisions. Tr. 51–53. She indicated that she has a good relationship with

friends and family, does not often have misunderstandings with coworkers and “usually

got along good with [her] coworkers.” Tr. 52–53, 55. She also stated that she had

originally gone to her primary care doctor to help her with her “tough mood swings,” and

that now she doesn’t have the mood swings when she is on her medication. Tr. 54–55.

Although Dr. Guidera and Dr. Brown believed Claimant to have “severe” mental

impairments, those impairments were not consistent with Claimant’s testimony. “It is the

function of the [Commissioner and ALJ], not [the reviewing court], to resolve evidentiary

conflicts and to appraise the credibility of witnesses, including the claimant.” Carroll v.

Sec’y of Health & Hum. Servs., 705 F.2d 638, 642 (2d Cir. 1983) (citations omitted).

Accordingly, the Court finds that although the ALJ committed procedural error by

improperly articulating his consideration of the supportability and consistency factors, but

that the substance of the rule was not traversed.

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The ALJ’s Failure to Reconcile His Findings with the RFC

By contrast, the Court finds that the ALJ’s failure to account for his findings

regarding Claimant’s mental impairments with his RFC determination requires remand.

20 C.F.R. § 404.1545(a)(2) and § 416.945(a)(2) call for the ALJ to “consider all of [the

claimant’s] medically determinable impairments of which [the ALJ is] aware, including [the

claimant’s] medically determinable impairments that are not ‘severe [ ]’ . . .” when

assessing a claimant’s RFC. (Emphasis added.) Thus, an “RFC determination must

account for limitations imposed by both severe and nonsevere impairments.” Parker-

Grose v. Astrue, 462 F. App’x 16, 18 (2d Cir. 2012). That is, even when substantial

evidence supports the ALJ’s finding that a medically determinable impairment is

nonsevere, it is nevertheless reversible legal error if the ALJ fails to account for the

limitations from that impairment when determining the claimant’s RFC. Id.

In the present case, the Court agrees that the ALJ committed legal error by failing

to account for Claimant’s mental limitations when determining her RFC. After finding at

step 2 that Claimant’s depression and somatic symptoms disorder do not cause “more

than a minimal limitation in the [C]laimant’s ability to do basic work activities,” the ALJ

determined Claimant’s RFC without accounting for – or even mentioning – any of the

limitations arising from her mental impairments. See, e.g., Collins v. Comm’r of Soc. Sec.,

No. 19-CV-01350-LJV, 2020 WL 6488744, at *6 (W.D.N.Y. Nov. 4, 2020) (stating that the

Court “cannot be certain that the ALJ actually considered [claimant]’s mental issues when

fashioning her RFC” because the ALJ’s explanation of her RFC includes no mention of

mental limitations whatsoever). Because the record is not clear as to whether the ALJ

considered the effects or symptoms of these diagnoses in formulating the RFC, remand

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is required so that the ALJ may adequately explain how he accounted for Claimant’s

mental impairments in her RFC. See, e.g., Winter v. Comm’r of Soc. Sec., No. 18-CV-

632-FPG, 2020 WL 2465080, at *3 (W.D.N.Y. May 12, 2020) (“[i]n most cases in which

this Court has remanded based on an ALJ’s failure to examine non-severe mental

impairments as part of her RFC determination, the ALJ either did not discuss the

impairments in his or her RFC assessment . . . or merely included boilerplate language

and/or made a few references to related evidence . . . .”).

B. The ALJ’s Determination that Claimant is Capable of Sedentary Work

In his decision, the ALJ discussed the record evidence and concluded that

Claimant had the RFC to perform sedentary work with additional postural, exertional, and

environmental limitations. Tr. 22–25. In the instant motion, Claimant maintains that the

ALJ’s determination that Claimant is capable of performing sedentary work is not

supported by substantial evidence because it is not supported by competent medical

opinion, and evidence subsequent to Claimant’s foot surgeries does not support the

conclusion that Claimant is capable of standing or walking for up to two hours during the

course of a workday, as sedentary employment requires. Tr. 21–23. Because the Court

remands the case for further consideration of the Claimant’s RFC, the Court will not

address Claimant’s remaining argument, as the ALJ’s correction of his error in failing to

account for Claimant’s mental limitations in her RFC may impact the ALJ’s RFC

formulation.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Claimant Catherine M.’s

motion for judgment on the pleadings [ECF No. 14] is granted only to the extent that the

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matter is remanded for further administrative proceedings pursuant to the fourth sentence

of 42 U.S.C. § 405(g) so that the ALJ can account for Claimant's mental impairments in

his RFC discussion. The Commissioner’s motion for judgment on the pleadings [ECF No.

17] is denied. The Clerk of Court is directed to enter judgment and close this case.

DATED: March 24, 2023

Rochester, New York

C x (AOD?

CHARLESJ. SIRAGG

United States District\ludge

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