Armstead v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

12/11/2C 0LE 2 R 4K

1:58 pm

EASTERN DISTRICT OF NEW YORK

U.S. DISTRICT COURT

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EASTERN DISTRICT OF NEW YORK

MATTHEW LEE ARMSTEAD, JR.,

LONG ISLAND OFFICE

Plaintiff, MEMORANDUM & ORDER

20-CV-2841 (JS)

-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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APPEARANCES

For Plaintiff: Daniel A. Osborn, Esq.

Osborn Law P.C.

43 West 43rd Street, Suite 131

New York, New York 10036

For Defendant: John C. Fisher, Esq., Special A.U.S.A.

United States Attorney’s Office

Eastern District of New York

c/o SSA/OGC

601 East 12th Street, Room 965

Kansas City, Missouri 64106-2898

SEYBERT, District Judge:

Plaintiff Matthew L. Armstead, Jr. (“Plaintiff”) brings

this action pursuant to Section 205(g) of the Social Security Act

(the “Act”), 42 U.S.C. § 405(g), challenging the denial of his

application for Social Security Disability Benefits by the

Commissioner of Social Security (the “Commissioner”). (Compl., ECF

No. 1.) Pending before the Court are the parties’ cross-motions

for judgment on the pleadings. (Pl. Mot., ECF No. 17; Pl. Support

Memo, ECF No. 17-1; Comm’r X-Mot., ECF No. 20; Comm’r Support Memo,

ECF No. 20-1; Pl. Reply, ECF No. 21; see also Admin. Tr., ECF No.

12.1.) For the following reasons, Plaintiff’s Motion is GRANTED,

and the Commissioner’s Cross-Motion is DENIED.

BACKGROUND2

I. Procedural History

On March 29, 2017, Plaintiff completed an application

for disability insurance benefits alleging disability as of

January 1, 2016 (hereafter, the “Onset Date”), due to spine

disorder, affective disorder, posttraumatic-stress disorder

(“PTSD”), and bilateral knee disorder. (R. 52.) After Plaintiff’s

claim was denied on May 19, 2017, he requested a hearing before an

Administrative Law Judge (“ALJ”). (R. 52, 191-200.) On February

11, 2019, accompanied by counsel, Plaintiff appeared for a hearing

before ALJ Benjamin Chaykin (hereafter, the “2019 Disability

Hearing”). (R. 136-162.) Lisa Carey, a vocational expert (“VE”),

testified at the hearing. (R. 52.)

In a March 20, 2019 decision, the ALJ found Plaintiff

was not disabled. (R. 49-68.) On May 13, 2020, the Social Security

Administration’s Appeals Council denied Plaintiff’s request for

1 Hereafter, the Court shall cite to the Administrative Transcript

as “R” and provide the relevant Bates Stamp number(s).

2 The background is derived from the administrative record filed

by the Commissioner on December 10, 2020. (See ECF No. 12.) For

purposes of this Memorandum & Order, familiarity with the

administrative record is presumed.

review, making the ALJ’s decision the final decision of the

Commissioner. (R. 1-7.)

Plaintiff initiated this action on June 26, 2020. (See

Compl.) On April 12, 2021, Plaintiff moved for judgment on the

pleadings. On July 7, 2021, the Commissioner cross-moved for

judgment on the pleadings. On July 28, 2021, Plaintiff filed his

reply. The Cross-Motions are ripe for decision.

II. Evidence Presented to the ALJ

The Court first summarizes Plaintiff’s testimonial

evidence and employment history before turning to his medical

records and the VE’s testimony.

A. Testimonial Evidence and Employment History

Plaintiff was born in 1990. (R. 142.) He completed his

high school education and attended some college, but did not obtain

a college degree. (R. 149.) At the time of the 2019 Disability

Hearing, Plaintiff was 29-years-old and slept at his mother’s

apartment. (R. 142, 148.) He has a history of childhood sexual

abuse by family members, which abuse began when he was seven or

eight. (R. 343-46, 380-81.) Plaintiff also was hit by a car when

he was in sixth grade, which caused traumatic brain injury. (R.

381.)

Plaintiff testified his friend usually picks him up at

his mother’s house in the morning and then they eat breakfast at

the friend’s house. (R. 148.) If the friend is not working, the

two will go for walks or play one-on-one basketball. (R. 149.)

Plaintiff testified he viewed his friend as his second therapist

who listens to his problems and gives him advice. (Id.) When his

friend needs to go to work, he often drops off Plaintiff at

Plaintiff’s mother’s job; Plaintiff will then sit in his mother’s

car waiting for her to finish work. (R. 148.)

At the time of the 2019 Disability Hearing, Plaintiff

was not working. (R. 143.) From February 2011 to September 2012,

Plaintiff worked at Access Staffing making sandwiches. (R. 147.)

From November 2012 to January 2013, Plaintiff worked as a driver’s

helper cleaning up debris from Hurricane Sandy. (Id.) From July

to November 2013, Plaintiff worked in an assembly line at Estee

Lauder where he put caps on bottles and packaged items into boxes.

(R. 297.) From November 2013 to July 2014, Plaintiff worked in

inventory distribution where he counted boxes and organized

shipments. (R. 295.) From July 2014 to August 2014, Plaintiff

worked at Sneakers 4 U, where he gathered shoe orders and conducted

quality control on the shoes. (R. 291, 296.) Also in 2014,

Plaintiff worked as a butcher for three months. (R. 291.) For

approximately one month in the beginning of 2015, Plaintiff worked

in telemarketing. (Id.) From February 2015 to November 2015,

Plaintiff did handyman work for Harris Corporation. (R. 291-92.)

It was also during 2015 that Plaintiff worked for Contract

Specialties Group, LTD, but because of his frequent absences, he

was eventually fired. (R. 150.) Plaintiff testified: he often

called out because he was too overwhelmed by the work and the

yelling from his coworkers (id.); and, he struggled to concentrate

and maintain pace at this job. (Id.) In 2017, Plaintiff attempted

working at a DXL Store folding clothes. (R. 144.) However, he

worked there for one day only because he found it too overwhelming.

(Id.) Plaintiff testified he was criticized for incorrectly

folding clothes, which criticism was overwhelming. (Id.) The next

time Plaintiff worked was in 2018; he worked for a week helping a

friend with cleaning houses. (R. 143-44.) However, Plaintiff:

could not keep up with the pace of the job; felt overwhelmed; and,

was uncomfortable being in another person’s home. (R. 144.)

Plaintiff began struggling with his mental health after

he was laid off in 2015. (R. 145.) Throughout that year, Plaintiff

felt he was a failure and became suicidal. (Id.) Eventually, in

August 2016, he sought treatment at South Nassau Guidance Center

(“Center”). (Id.) Since then, Plaintiff has been attending

counseling sessions at the Center once a week; he testified he has

experienced “up[s] and down[s]” in his symptoms, which have “not

really” improved. (R. 145-46.)

According to Plaintiff, he suffers from depression,

anxiety, and PTSD. (R. 152.) Plaintiff’s daily anxiety causes him

to feel: extreme pressure in his chest; as though he is going to

have a heart attack; as though he has lost all control of his mind;

and, as though he wants to die. (R. 153.) Further, Plaintiff

testified that being around his mother triggers his anxiety;

likewise, being in her home surrounded by photos of the brother

and cousins who molested him triggers Plaintiff’s anxiety spells.

(R. 153-54.) Plaintiff estimates he experiences “bad days” about

three days per week; such days are when his symptoms are more

severe. (R. 154.) During such days, Plaintiff isolates himself

from others, finding it difficult to function normally; he will

not answer his friend’s phone calls, but will lock himself in his

mother’s room. (R. 154.) Plaintiff was suffering anxiety attacks

through January 2019. (Id.) Additionally, he has trouble trusting

others, believing they will hurt him if given the chance. (R. 152.)

Exacerbating his symptoms, Plaintiff also testified that

he suffers from intense pain in his lower back and achiness in

both his knees. (R. 156.) Pulling is also a struggle because of

his back. (R. 157.) Additionally, Plaintiff struggles with

sleeping because nightmares of his past trauma keep him up at

night. (R. 151.) Plaintiff testified to getting no more than five

hours a sleep on a good night, which occurs two-to-three nights

per week. (Id.) Plaintiff is currently taking prazosin and

citalopram to help him sleep. (Id.)

B. Plaintiff’s Mental Health Medical History3

1. Treatment at the Center

a. Dr. Stephen Rayport’s Treatment Notes

i. Initial Appointment and Assessment

Plaintiff began attending the Center on August 24, 2016,

when he met with Amanda Marcus, LCSW (“LCWS Marcus”), and Dr.

Stephen Rayport (“Dr. Rayport”) to discuss his symptoms, since he

could no longer “take it anymore” and needed “help talking and

finally getting some closure.” (R. 376, 386.) He reported being

anxious and depressed all the time, which impeded his ability to

maintain employment; he further explained, he took frequent

bathroom breaks at work because of his anxiety. (R. 376.)

3 While it is undisputed Plaintiff has physical impairments in

addition to mental ones, since Plaintiff’s action here focuses

upon his mental impairments, the Court does likewise. Accordingly,

no discussions of Plaintiff’s physical impairments--including

treatments thereof--are addressed herein. See, e.g., Grady v.

Comm’r of Soc. Sec., No. 20-CV-3739, 2024 WL 4607231, at *2 n.3

(E.D.N.Y. Oct. 28, 2024) (where claimant did not challenge ALJ’s

findings regarding claimant’s physical limitations, focusing

discussion on claimant’s mental impairments); see also Rodriguez

v. Comm’r of Soc. Sec., No. 22-CV-10665, 2024 WL 1342834, at *2

(S.D.N.Y. Mar. 29, 2024) (same); Navedo v. Kijakazi, 616 F. Supp.

3d 332, 346 n.6 (N.D.N.Y. 2022)(“[B]ecause [plaintiff] does not

dispute the ALJ’s findings regrading her physical impairments in

this appeal, the medical evidence discussed in this opinion focuses

only on [plaintiff]’s mental impairments.” (internal quotations

and citation omitted)).

For convenience, the Court notes generally: Plaintiff’s

physical impairments include a spine disorder and a bilateral knee

disorder. (R. 55.) He also suffered serious head trauma as the

result of being hit by a vehicle when he was in the sixth grade.

(R. 345, 381.) As a result, Plaintiff has residual joint pain and

suffers from migraines and headaches. (R. 381.)

Plaintiff also stated several family members molested him at a

young age, and his father left when he was young. (Id.)

Conversely, Plaintiff reported a strong relationship with his

mother. (R. 380.)

Continuing, Plaintiff reported, when he was in the sixth

grade, a friend pushed him in front of a car, which hit him. (R.

376.) Due to the car accident, Plaintiff suffered a traumatic

brain injury and short-term memory loss. (R. 381.) Plaintiff also

stated his belief that the car accident exacerbated his depression.

(R. 376.) He told LCWS Marcus and Dr. Rayport he has had suicidal

thoughts and regretted not dying in the car accident. (R. 382.)

Plaintiff also noted struggling with sleeping because of

flashback nightmares. (R. 376.) He further reported: sleeping

only two-to-three hours per night; having low energy; spending a

great deal of time in the dark; and, having a poor appetite. (Id.)

Overall, Plaintiff believed his poor mental health was a barrier

to achieving his goals; for example, it prevented him from going

out in public. (R. 383-84.) He stated: “Mentally[,] it’s like

I’m not there at all, like I’m gone.” (R. 384.) To combat his

depression and anxiety, Plaintiff stated he engaged in several

activities, such as: watching documentaries about depression;

journaling; riding his bicycle; and, listening to music. (R. 383.)

In their Comprehensive Assessment, LCSW Marcus and Dr.

Rayport diagnosed Plaintiff with Major Depressive Disorder (“MDD”)

that was severe, recurrent, and without psychotic features. (R.

385.) They further diagnosed Plaintiff with PTSD. (Id.). Their

diagnoses also included Plaintiff: having “[s]leep paralysis”;

having “[v]ocational problems”; experiencing “[p]roblems related

to primary support system”; experiencing “[i]nterpersonal

avoidance”; and suffering traumas from his car accident and sexual

abuse. (Id.)

ii. Subsequent Appointments with Dr. Rayport

Plaintiff next met with Dr. Rayport on April 5, 2018.

(R. 469.) Among other physical ailments, Plaintiff reported having

gone for a sleep study and being diagnosed with sleep apnea. (Id.)

Dr. Rayport noted Plaintiff was still suffering from flashbacks a

couple times per week. (R. 468.) He also reported, inter alia,

Plaintiff had: a neat appearance; a stressed mood; no formal

thought disorder; full cognition; and, excellent insight and

judgment. (Id.) Dr. Rayport confirmed Plaintiff’s MDD and PTSD

diagnoses. (R. 469.)

On September 22, 2018, Plaintiff has another appointment

with Dr. Rayport, during which Plaintiff reported “things have

been rough.” (R. 562.) In sum, due to his mother’s changed

financial circumstances, Plaintiff was “[e]ffectively homeless”.

(R. 562, 565.) Significantly, Plaintiff continued to report

symptoms of depression and PTSD. (R. 563, 565.) Plaintiff’s mood

and affect were depressed and anxious; he continues to have passive

suicidal thoughts. (R. 563.) Dr. Rayport noted Plaintiff reporting

he “goes to sleep with the blissful thought that he won’t wake up

in the morning and then is depressed when he does.” (Id.)

Plaintiff also informed the Doctor he had ran out of his

medications two weeks prior to the September 2018 appointment,

which worsened his symptoms. (R. 563.) Dr. Rayport renewed

Plaintiff’s prescriptions for Celexa, Klonopin, and Hydroxyzine.

(R. 565-66.)

b. Notes of Annamarie Goldblatt, PMNHNP-BC4

Plaintiff first met with Annmarie Goldblatt, PMHNP-BC

(“Goldblatt”), on October 13, 2016. (R. 393.) At that time,

Plaintiff reported having prior passive thoughts of suicide, but

he had no intention or plan to act upon them. (R. 389.) Noting he

was still close with a friend from middle school, Goldblatt

developed a plan for Plaintiff to talk to that friend if Plaintiff

developed suicidal thoughts in the future. (R. 389-90.) Goldblatt

also observed, inter alia, Plaintiff: was clean and neat; held

good eye contact; and, presented with a calm mood, but blunted

affect. (R. 391.) Plaintiff denied having auditory verbal

hallucinations, mood swings, and paranoia. (Id.) His cognitive

function was fair; his thought processes were concrete; and, his

4 “PMNHNP-BC” is an acronym for a Board Certified

Psychiatric-Mental Health Nurse Practitioner. See, e.g.,

https://www.nursingworld.org/our-certifications/psychiatric-

mental-health-nurse-practitioner/ (last visited Nov. 20, 2024).

insight and judgment were within normal limits. (Id.) Goldblatt

found Plaintiff met the criteria for MDD, i.e., was depressed; had

low energy and motivation; had a poor appetite; and, exhibited a

lack of interest. (Id.) She also concluded Plaintiff showed signs

of chronic PTSD, i.e., flashbacks; nightmares; hypervigilance;

feeling out of himself and ambivalent; and, having difficulty with

relationships. (Id.)

Plaintiff next met with Goldblatt on April 25, 2017. (R.

399-402.) Plaintiff continued to complain of depression and

anxiety. (R. 399.) He reported isolating himself to avoid being

around others. (Id.) Goldblatt noted Plaintiff experienced:

uncomfortability being around family members who abused him;

feeling empty; having trouble falling asleep; and, sleeping four-

to-six hours per night. (Id.) Goldblatt reported a notable change

in Plaintiff’s mood and affect, describing them as “‘empty’ affect

dysphoric, timid”; all other identified conditions showed no

significant changes. (Id.) Plaintiff denied having suicidal

ideations. (Id.)

Goldblatt met again with Plaintiff on May 9, 2017, for

a medication and symptom update. (R. 395-98.) She reported

Plaintiff continued to isolate himself and felt uncomfortable

around people. (R. 395.) Goldblatt once more highlighted

Plaintiff’s mood and affect was “notable”, describing same as

“‘numb’ affect dysphoric” and “timid”, with other identified

conditions continuing to exhibit no significant changes. (Id.)

Plaintiff continued to deny auditory visual hallucinations and

paranoia, and he did not report any suicidal thoughts or ideations.

(Id.) His appetite remained unchanged. (Id.) Goldblatt did not

change Plaintiff’s medications, i.e., Citalopram, Mirtazapine,

Hydroxyzine, and Remcron, but altered dosages to avoid lethargy

and help with his anxiety. (R.396, 398.)

c. Treatment Notes of Sean Thomas, NPP5

On January 16, 2018, Plaintiff had another session at

the Center, this time with NPP Sean Thomas (“Thomas”). (R. 444.)

Thomas noted Plaintiff was experiencing increased anxiety because

family members who had molested him were visiting. (Id.) He

further recorded Plaintiff having missed his last medication

appointment; therefore, Plaintiff had been without Celexa for six

days. (Id.) Thomas prescribed a daily dosage of Klonopin to

improve Plaintiff’s anxiety, and Plaintiff reported the increased

dosage of Prazosin helped with his night terrors. (Id.) Thomas

reported no significant changes in Plaintiff’s appearance,

5 “NPP” is an acronym for a Nonphysician Practitioner. See, e.g.,

https://www.aapc.com/resourcs/what-is-a-nonphysician-

practitioner-npp; see also, e.g.,

clarifyhealth.com/insights/healthcare-acronyms/npp/ (“Nonphysician

Practitioner (NPP) refers to healthcare providers who are not physicians

but who perform some of the same care typically provided by a physician.

They may include nurse practitioners, physician assistants, and clinical

nurse specialists.”).

behavior, mood and affect, speech, thought process, thought

content, cognition, insight, or judgment. (Id.)

Plaintiff next met with Thomas at the Center on June 5,

2018. (R. 466.) Plaintiff relayed that, due to a family event,

many of his cousins would be visiting, which visit was increasing

Plaintiff’s anxiety since the visit brought up bad memories of the

abuse Plaintiff suffered at the hands of his brother. (R. 464.)

Thomas noted Plaintiff had been without medication for the prior

three weeks, having run out of them. (Id.) Thomas re-filled

Plaintiff’s prescriptions for Celexa, Klonopin, and Vistaril. (R.

466.) Thomas also found notable Plaintiff’s mood, which was “down,

sluggish”, and affect, which was “flat”. (R. 464.)

d. Treatment Notes of Dina Macaluso, LMSW

On January 30, 2018, Dina Macaluso, LMSW (“Macaluso”),

completed a medical source statement of Plaintiff’s ability to do

work-related activities. (R. 456.) Macaluso first opined

Plaintiff had marked limitations in the following categories: (1)

understanding and remembering simple instructions; (2) carrying

out simple instructions; (3) carrying out complex instructions;

and (4) having the ability to make judgments on complex work-

related decisions. (Id.) Additionally, Macaluso reported

Plaintiff had extreme limitations in his ability to understand and

remember complex instructions. (Id.) Supporting her assessment,

Macaluso stated Plaintiff “has experienced a lot of trauma as well

as suffered a head injury from being hit by a car.” (Id.) Macaluso

opined Plaintiff also had extreme limitations in his ability to

interact appropriately with the public, with supervisors, and with

co-workers, as well as in responding appropriately to usual work

situations and to changes in a routine work setting. (R. 457.)

Macaluso explained Plaintiff’s past trauma has led him to be

uncomfortable around others and to be anxious. (Id.) Finally,

Macaluso opined Plaintiff’s anxiety causes him to panic, which

interferes with his abilities to concentrate. (Id.)

On September 13, 2018, Plaintiff had a progress meeting

with Macaluso. (R. 539-50.) Plaintiff reported symptoms of:

depression; PTSD; low energy; poor appetite; difficulty

concentrating; hopelessness; history of suicidal ideation;

difficulty sleeping; little interest in activities; frequent

intrusive thoughts; flashbacks; and, nightmares. (R. 539.) He

also presented with suicidal ideation due to increased anxiety

caused by a recent move; Plaintiff relayed almost running into a

car but stopping himself when he realized what he was doing. (Id.)

Macaluso noted Plaintiff’s means of addressing his anxiety were,

inter alia: playing basketball and visiting the gym; meditating

and practicing yoga; journaling; and, socialized when he felt able.

(Id.) She noted Plaintiff attended therapy on a weekly basis and

was an active participant. (R. 541.) Macaluso reported Plaintiff

still struggled with identifying his triggers and the warning signs

of his symptoms; she reviewed a safety plan with him to use when

he was experiencing symptoms. (R. 542.) Moreover, Macaluso found

Plaintiff’s PTSD symptoms were present daily, with his symptoms of

depression at the forefront. (R. 544.) She noted Plaintiff

continued to complain about his sleep struggles notwithstanding

using his CPAP machine. (Id.) Further, while Plaintiff took

medications to help with his symptoms, he was not taking them

consistently. (R. 548.) Macaluso affirmed Plaintiff’s MDD and

PTSD diagnoses. (R. 549.)

On November 20, 2018, Plaintiff met with Macaluso again;

they developed a safety plan if Plaintiff began to develop thoughts

of suicide. (R. 578.) The plan was, should he begin to experience

certain stressors, e.g., interactions with his mother or seeing

pictures of his brother, Plaintiff could: write; exercise or go

for a walk; reach out to friends; and/or listen to music. (Id.)

Plaintiff met with Macaluso again on December 10, 2018.

(R. 527-38.) She reported Plaintiff was: experiencing continuing

suicidal ideations; continuing to deal with his symptoms of

depression and PTSD; and, continuing to work on identifying his

triggers. (R. 527.) As to his triggers, Plaintiff reported

socializing and the lack of structure in his life were triggers.

(Id.) Plaintiff complained the state of his mental health and his

fear of going outside were impediments to his goals of identifying

his triggers and establishing effective coping skills. (R. 527-

28.) In that vein, Macaluso reported certain socialization

activities caused Plaintiff to experience flashbacks. (R. 532,

534.) She stated Plaintiff used his therapy sessions and

medication to manage his symptoms. (R. 533.) Macaluso noted

Plaintiff was being more compliant with his medications. (R. 536.)

On January 8, 2019, Macaluso completed a second medical

source statement regarding Plaintiff’s ability to do work-related

activities. (R. 581-83.) She first opined Plaintiff had marked

limitations in his ability to carry out simple instructions and in

his ability to makes judgments on simple work-related decisions.

(R. 581.) She then reported Plaintiff had extreme limitations in

the following categories: (1) understanding and remembering simple

and complex instructions; (2) carrying out complex instructions;

and (3) making judgments on complex work-related decisions. (Id.)

Macaluso explained Plaintiff could not remember “even the simplest

instructions”, and his symptoms kept him preoccupied. (Id.) She

also stated Plaintiff had a history of being unable to carry out

tasks at work and received several write-ups due to his behavior.

(Id.)

Regarding his ability to interact appropriately with

others, Macaluso opined Plaintiff’s impairments extremely limited

such ability as to: the public; supervisors; and, co-workers. (R.

582.) Likewise, Plaintiff’s impairments extremely limited his

ability to respond appropriately to usual work situations and to

changes in a routine work setting. (Id.) Macaluso elucidated that

Plaintiff’s childhood abuse caused him to feel uncomfortable

around others. (Id.) She believed Plaintiff would struggle in

settings requiring interaction with others because such settings

would trigger flashbacks. (Id.) Macaluso further opined

Plaintiff’s panic attacks would cause him to take excessive

bathroom breaks. (Id.) She also explained Plaintiff’s symptoms

negatively affected his punctuality and attendance, which would

hamper his attendance. (Id.) Moreover, Plaintiff was no longer

comfortable driving, which would also hinder his attendance. (Id.)

e. Treatment Notes of

Valreen Hinds, DNP,6 PMHNP-BC

Between appointments with Macalusco, Plaintiff had a

July 12, 2018 visit to the Center for follow-up medication

management; Plaintiff saw Valreen Hinds, DNP, PMHNP-BC (hereafter,

“Hinds”). (R. 461.) At that time, Plaintiff reported his anxiety

continued to fluctuate. (Id.) Hinds noted the day was particularly

tough for Plaintiff because his brother, who had molested him, was

getting married and Plaintiff was not attending. (Id.) Hinds

reported Plaintiff’s mood as sad and his affect as constricted,

but he was not experiencing suicidal thoughts. (Id.) Hinds

6 “DNP” signifies a Doctor of Nursing Practice; a DNP degree is

the “high[est] level of education available for practice-based

training in nursing.” See Degrees: What Is a DNP and Is It Worth

It? (June 5, 2024), available at https://nurse.org/articles/how-

to-get-a-dnp-is-it-worth-it/ (last visited Nov. 21, 2024).

instructed Plaintiff to continue his medications, with which he

was not being compliant; no explanation was given for said non-

compliance. (R. 461, 463.)

f. Treatment Notes of Anne Saunders, NPP

Plaintiff also met with Anne Saunders, NPP (hereafter,

“Saunders”), at the Center. (R. 557-61.) On November 6, 2018,

Saunders found Plaintiff’s appearance, speech, cognition, and

insight and judgment were unremarkable. (R. 557-58.) However, she

found notable Plaintiff’s mood, which was anxious, and that

Plaintiff was distressed by nightmares, which woke him up. (R.

557.) Saunders also highlighted Plaintiff had intrusive suicidal

ideations for years, but without any plan or intent to act upon

them. (R. 558.) Plaintiff was taking his medications as

prescribed; Saunders maintained Plaintiff’s prescriptions for

Celexa, Klonopin, and Hyrdoxyzine. (R. 558, 559.) Plaintiff’s

diagnoses of MDD and PTSD were also noted within the record. (R.

560.)

Thereafter, on November 27, 2018, Plaintiff had another

session with Saunders. (R. 551-56.) Saunders noted Plaintiff was

not working because of his depression and PTSD symptoms. (R. 551.)

Plaintiff reported waking up, at least once a week, in the middle

of the night feeling tingling in his extremities and experiencing

shortness of breath. (Id.) Saunders discussed the nightmares with

Plaintiff and emphasized the need for sleep hygiene. (Id.)

Plaintiff continued to take his medications but vocalized his

uncertainty about the effectiveness of Celexa. (Id.) Of note,

Plaintiff’s mood was depressed, and his affect was anxious. (R.

552.) He was not experiencing suicidal ideations. (Id.) Saunders

suggested Plaintiff consider taking an online course, to which

idea Plaintiff was receptive. (R. 555.) There was no change in

Plaintiff’s diagnoses of major depression and PTSD. (R. 555.)

In her notes regarding Plaintiff’s December 18, 2018

visit to the Center, Saunders stated Plaintiff reported an improved

mood, i.e., he was “less depressed at times”. (R. 522, 523.) Yet,

his affect remained anxious. (R. 523.) Plaintiff continued to

report symptoms of depression and PTSD. (R. 524.) Further,

Plaintiff claimed he suffered from: low energy; a depressed mood;

poor appetite; difficulty concentrating; and, hopelessness and

little interest in activities. (Id.) He also continued to

experience sleeping difficulties and nightmares, as well as

frequent intrusive thoughts and flashbacks. (Id.) Saunders did

not report any changes to Plaintiff’s medication or diagnoses. (R.

524-25.)

2. D.O. Anthony F. Adamo’s Treatment Notes

On October 27, 2016, Plaintiff visited Anthony Adamo,

D.O. (“Dr. Adamo”), of Nassau Suffolk Neurology, P.C., for a

neurology visit. (R. 427.) Plaintiff’s primary complaint was poor

sleeping, stating he did not feel well-rested and wakes up multiple

times throughout the night. (Id.) Dr. Adamo noted Plaintiff may

have an underlying sleep disorder, but a brain MRI and EEG would

be necessary. (R. 429.) A subsequent brain MRI presented as normal

(R. 425.) However, Plaintiff presented an abnormal awake/drowsy

EEG due to background slowing. (R. 421-22.)

At his follow-up November 17, 2016 appointment with Dr.

Adamo, Plaintiff complained of some insomnia with daytime

somnolence. (R. 418.) Dr. Adamo noted no new neurological

symptoms, but Plaintiff presented with mild dizziness. (Id.) The

Doctor suggested a sleep evaluation should be scheduled. (R. 420.)

On April 13, 2017, Plaintiff again visited Dr. Adamo.

(R. 415.) Plaintiff denied any daytime sleeping attacks, but had

general somnolence, hypnagogic hallucinations, and sleep

paralysis. (Id.) During the April 2017 visit, among other things,

the Doctor found Plaintiff’s affect was pleasant and cooperative.

(R. 416.) He again recommended a sleep evaluation because the

Plaintiff had many features consistent with narcolepsy. (R. 415.)

Plaintiff’s dizziness and giddiness, encephalopathy, and

peripheral vertigo remained unchanged from prior visits. (R. 417.)

Plaintiff’s next appointment with Dr. Adamo was on

September 28, 2017. (R. 412.) Plaintiff’s reported symptoms were

unchanged. (R. 412, 414.) So, too, was Plaintiff’s mental status.

(R. 413.) Once more, the Doctor recommended a sleep study

evaluation to investigate Plaintiff’s daytime somnolence; a re-

evaluation would be required thereafter. (R. 414.)

3. Consultative Examiner Dr. Kathleen Acer’s

Treatment Notes

On May 10, 2017, consultative examiner Kathleen Acer,

Ph.D. (“Dr. Acer”), conducted a psychiatric evaluation of the

Plaintiff. (R. 405.) Among other things, her evaluation included

Plaintiff’s history and background information, e.g.: he is unable

to work due to physical and psychiatric issues; as an adult,

Plaintiff began counseling in August 2016; he attends counseling

weekly and sees a psychiatrist monthly; and, he is on various

prescription medications. (Id.).

As to Plaintiff’s current functioning capacity, Dr. Acer

reported, Plaintiff: had difficulty falling and staying asleep;

had ongoing and daily depressed moods; felt hopelessness about the

future; suffered from fatigue and lacked energy and motivation.

(R. 405.) Further, Plaintiff: was socially withdrawn; avoided

interacting with others because it caused him a great deal of

anxiety; had trouble focusing and concentrating; and, experienced

ongoing nightmares and flashbacks of his molestation and car

accident. (Id.) Continuing, the Doctor noted Plaintiff felt

emotionally numb, and was frequently anxious, nervous, restless,

jittery, tense, overwhelmed, and stressed. (Id.) Moreover,

Plaintiff suffered panic attacks several times a week accompanied

by palpitations, sweating, dizziness, breathing difficulties,

trembling, and shaking. (Id.) Said attacks generally occured when

Plaintiff was in public situations; therefore, Plaintiff would

avoid leaving the house whenever possible. (R. 405-06.) However,

he did not present with any suicidal ideations or mania. (R. 406.)

Dr. Acer conducted a mental assessment of Plaintiff

during which he was cooperative, but anxious. (R. 406.) While

presenting appropriately and neatly groomed, Plaintiff’s posture

was tense and restless throughout the evaluation. (Id.) Further,

although, Plaintiff was coherent, goal directed, and presented no

evidence of hallucinations, delusions, or paranoia, his mood and

affect were anxious, while his sensorium was clear. (Id.)

Throughout the evaluation, Plaintiff appeared alert with his

attention and concentration intact. (Id.) Dr. Acer documented

Plaintiff’s cognition as average while his insight and judgment

were fair. (R. 407.)

Regarding his mode of living, Dr. Acer reported

Plaintiff could: dress, bathe, and groom himself; perform simple

household chores such as taking out the garbage and washing the

dishes; manage his finances; and, drive a vehicle. (R. 407, 408.)

She also stated Plaintiff had an adequate relationship with his

mother, but did not interact with other family members. (R. 407.)

Dr. Acer noted Plaintiff spent his days watching television, lying

around the house, and listening to music. (Id.)

Dr. Acer also provided a medical source statement

describing Plaintiff’s vocational capacity, i.e., there was no

evidence of a limitation in Plaintiff’s ability to understand,

remember, or apply simple or complex instructions and directions

or to use reason and judgment. (Id.) However, Dr. Acer reported

Plaintiff would have marked limitations in: adequately interacting

with supervisors, coworkers, and the public; sustaining an

ordinary routine; and, regulating emotions. (Id.) She stated the

results of her evaluation “appear to be consistent with psychiatric

issues which may hinder functioning.” (Id.) Dr. Acer diagnosed

Plaintiff with MDD, PTSD, panic disorder, and agoraphobia. (Id.)

She recommended continued psychiatric and psychological treatment,

concluding that Plaintiff’s prognosis was fair. (R. 408.)

4. Evaluation by K. Lieber-Diaz, Psy.D.7

On May 19, 2017, Dr. Kimberly Lieber-Diaz (hereafter,

the “Consultant” or “Lieber-Diaz”) conducted an initial disability

determination of the Plaintiff. (R. 165-177.) “Consultant Lieber-

Diaz reviewed some (but not all) of [Plaintiff]’s medical records,”

and “never examined [Plaintiff].” (Support Memo at 18.) According

7 The acronym “Psy.D.” stands for Doctor of Psychology. See LIU

Post: Psy.D vs Ph.D, available at

https://liu.edu/post/academics/school-of-health-

professions/programs/doctor-of-psychology/psyd-vs-phd (last

viewed Dec. 2, 2024). It is “similar to the Ph.D. (Doctor of

Philosophy) and the Ed.D. (Doctor of Education) in academic

standing” but with a greater focus on clinical training. Id.

to the Consultant’s review, Plaintiff: had a normal appearance;

was cooperative and calm; had a blunted affect; could not do serial

sevens, but could do serial fours; and, had a concrete though

process. (R. 169.) She reported Plaintiff’s mental status

examination was notable for dysphoric and timid mood, but otherwise

was within normal limits. (Id.) The Consultant opined Plaintiff

had a moderate limitation in his ability to interact with others

and mild limitations in his abilities to: understand, remember, or

apply information; concentrate, persist, or maintain pace; and,

adapt or manage himself. (R. 170.) Based upon the evidence

presented, Consultant Lieber-Diaz concluded Plaintiff was not

disabled and would be limited to jobs requiring minimal contact

with others. (R. 175; R. 177.)

C. The VE’s Testimony

At Plaintiff’s 2019 Disability Hearing, when asked to

consider a hypothetical individual with Plaintiff’s vocational

profile and residual functional capacity (“RFC”), the VE testified

such an individual would not be capable of performing any of

Plaintiff’s past work. (R. 159.) However, the VE also testified

the hypothetical individual would be able to work as a garment

sorter, a price maker, or as a non-postal mail clerk. (R. 159-60.)

When the ALJ added the further limitations that the hypothetical

individual could perform only simple, routine tasks which did not

involve teamwork or tandem tasks, the VE testified that such

limitations would not prevent said individual from performing the

above-mentioned jobs. (R. 160.) However, with the additional

limitations that the hypothetical individual would be off task for

more than 15 percent of the workday or would be absent from work

at least two days a month, the VE testified either of those

limitations would preclude employment for said individual (Id.)

DISCUSSION

I. Standard of Review, Generally

When reviewing a final decision of the Commissioner, a

district court must “conduct a plenary review of the administrative

record to determine if there is substantial evidence, considering

the record as a whole, to support the Commissioner’s decision and

if the correct legal standards have been applied.” Rucker v.

Kijakazi, 48 F.4th 86, 90-91 (2d Cir. 2022) (quoting Estrella v.

Berryhill, 925 F.3d 90, 95 (2d Cir. 2019)). District courts will

overturn an ALJ’s decision only if the ALJ applied an incorrect

legal standard, or if the ALJ’s ruling was not supported by

substantial evidence. Id. (citing Talavera v. Astrue, 697 F.3d

145, 151 (2d Cir. 2012)). “[S]ubstantial evidence . . . means

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Selian v. Astrue, 708 F.3d 409,

417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389,

401 (1971)).

II. The ALJ’s Decision and the Five-Step Disability Analysis

First, the ALJ found Plaintiff meets the insured status

requirements through March 31, 2019. (R 54.) The ALJ then applied

the five-step disability analysis and concluded Plaintiff was not

disabled from his Onset Date through the date of his March 20,

2019 decision (hereafter, the “March 2019 Decision” (R.52-63)).

(R. 53, 63); see also 20 C.F.R. § 404.1520.

At step one, the ALJ found Plaintiff had not engaged in

substantial gainful activity since the alleged Onset Date; indeed,

while Plaintiff had worked since the alleged Onset Date, such work

did not rise to the level of substantial gainful activity. (R.

54.)

At step two, the ALJ determined Plaintiff had severe

impairments consisting of, inter alia: an affective disorder;

anxiety disorder; and, PTSD. (R. 55.) The ALJ stated those

impairments “significantly limit the ability to perform basic work

activities.” (Id. (citing SSR 85-28).)

At step three, the ALJ determined Plaintiff’s

impairments or combination thereof did not meet or medically equal

the severity “of one of the listed impairments in 20 CFR Part 404,

Subpart P, Appendix 1” of the Social Security regulations because,

considered singly or in combination, the severity of Plaintiff’s

mental impairments “d[id] not meet or medically equal the criteria

of listings 12.04 and 12.06”. (Id.) The ALJ’s finding was based

upon the “‘paragraph B’ criteria”, which considers the impact of

a claimant’s mental impairments in four categories:

(1) understanding, remembering, or applying information;

(2) interacting with others; (3) concentrating, persisting, or

maintaining pace; and (4) managing himself. (Id.)

As to Category One: The ALJ explained Plaintiff’s

abilities for understanding, remembering, or applying information

was mildly limited based upon his “typical activities including

being able to drive, spend time with a friend, watch television,

and listen to music” as well as a mental status examination showing

intact recent and remote memory skills. (R. 56 (citing Dr. Acer’s

2017 Evaluation).) As to Category Two: The ALJ found Plaintiff

had a moderate limitation in his ability to interact with others

because, “on a typical day”, he would “call a friend to pick him

up so he does not have to stay at home alone” or “[h]e may go for

walks and talk with his friend, go to the gym, or play basketball.”

(Id. (emphasis added).) Further, Plaintiff was “able to shop in

the grocery store by going early, and can used shared

transportation to appointments.” (Id. (emphasis added).) As to

Category Three: The ALJ further determined Plaintiff was

moderately limited regarding concentration, persistence, and

maintenance-of-pace. (Id.) The ALJ based this assessment upon

Plaintiff being able to clean, watch television, and read, as well

as engaging in daily activities of simple household chores,

managing his finances, driving and listening to music. (Id.)

Moreover, he relied upon Dr. Acer’s examination to conclude

Plaintiff had “intact attention and concentration. (Id. (citing

Dr. Acer’s 2017 Evaluation).) As to Category Four: The ALJ found

Plaintiff had a moderate limitation in his ability to interact

with others. (Id.) This finding was premised upon Plaintiff’s

purported ability to independently manage certain daily

activities, “including household chores, watching television,

listening to music, and spending time with others,”

notwithstanding the ALJ’s acknowledgement regarding Plaintiff’s

testimony that, several times per week, he would isolate himself

when his anxiety worsened and being uncomfortable around others.

(Id. (citing Dr. Acer’s 2017 Evaluation).) At bottom, because he

found Plaintiff’s mental impairments did not cause at least two

“marked” limitations or one “extreme” limitation, the ALJ further

found Plaintiff did not satisfy the “paragraph B” criteria. (Id.)

Moreover, as to the alternative “paragraph C” criteria, in a

perfunctory manner, the ALJ stated “[t]he record does not establish

he has only . . . a minimal capacity to adapt to changes in his

environment or to demands that are not already part of [his] daily

life,” since he “can shop” and “spend time with others”. (Id.)

The ALJ proceeded to assess Plaintiff’s residual

functional capacity (“RFC”), concluding Plaintiff’s RFC was for

light work, with certain physical limitations, as well as the non-

physical limitations of being limited to “simple, routine tasks,

but no teamwork or tandem tasks” and “occasional interaction with

supervisors, co-workers, and the public.” (R. 57.) To support

his RFC determination, the ALJ stated he “considered all symptoms

and the extent to which these symptoms can reasonably be accepted

as consistent with the objective medical evidence and other

evidence.” (Id.)

Specific to Plaintiff’s mental impairments, the ALJ

found Plaintiff’s “medically determinable impairments could

reasonably be expected to cause the alleged symptoms,” but

Plaintiff’s “statements concerning the intensity, persistence and

limiting effects of these symptoms are not entirely consistent

with the medical evidence and other evidence in the record.” (R.

58.) Notwithstanding Plaintiff having “reported a difficult[]

history, including childhood trauma, and ongoing mental health

treatment including weekly therapy and monthly medication

management,” the ALJ found “his level of current functioning

appear[ed to be] greater than alleged.” (Id. (internal citation

omitted).) In making this finding, the ALJ relied upon the

following. First, based upon the 2017 Consultative Exam, the ALJ

highlighted Plaintiff had been able to drive himself to that 2017

Exam. (Id.) The ALJ further underscored, while Plaintiff had

some counseling in high school, he did not start treatment as an

adult until August 2016. (Id.) Second, based upon an unidentified

mental status exam, Plaintiff exhibited, inter alia: fluent and

clear speech; coherent and goal directed thought processes; a clear

sensorium; good orientation; intact attention, concentration, and

recent and remote memory skills. (Id.) However, while there was

no evidence Plaintiff suffered from hallucinations, delusions or

paranoia, his affect and mood were anxious. (Id.) Third, based

upon the April 13, 2017 treatment notes of Dr. Adamo, the ALJ found

Plaintiff’s mental health status “mostly unremarkable, with normal

attention and concentration, and intact recent and remote memory.”

(R. 59 (citing Apr. 13, 2017 treatment notes of neurologist Dr.

Adamo8 (R. 519-21)9).) Finally, the ALJ also noted what appeared

“to be a period of missing treatment, though [Plaintiff] did attend

psychotherapy sessions later in 2018.” (Id.) At bottom, the ALJ

found Plaintiff’s “mental impairments, related to symptoms of

PTSD, depression, and anxiety, would cause limitations to simple,

routine tasks, with limited interaction with others, due to

difficulties with social functioning,” but “[w]ork-preclusive

impairments [we]re not shown.” (Id.)

8 Identified as Ex. No. 18F in the Administrative Transcript.

9 Plaintiff’s April 13, 2017 visit to Dr. Adamo was an office

neurology visit. (R. 519.) Its purpose was to evaluate

Plaintiff’s complaints of dizziness. (Id.) Dr. Adamo had

previously “recommended [a] sleep evaluation as [Plaintiff] has

many features consistent with narcolepsy.” (Id.)

The ALJ elucidated. He found partially persuasive the

Consultant’s opinion; he agreed Plaintiff is “limited to jobs

requiring minimal contact with supervisors, co-workers, and the

general public”, but given further consideration of Plaintiff’s

subjective complaints and other opinions and treatment evidence in

the record, “further moderate limitations in concentration,

persistence, and pace, and adaptive functioning, are more

supportable by the overall evidence.” (R. 60.) But, the ALJ

continued that unidentified “objective mental status examination

findings are not consistent with work-preclusive limitations.”

(Id.) By way of rationale, the ALJ underscored Plaintiff did not

require inpatient treatment for any of his mental health

conditions; moreover, Plaintiff was “able to drive to some extent,

shop in stores while avoiding crowds, and play basketball with a

friend, or others occasionally.” (Id.) He further highlighted a

period of ‘very limited and sporadic treatment between August 2016

and summer 2018, when treatment notes indicate regular attendance

again.” (Id.)

Conversely, the ALJ found LMSW Macaluso’s January 2018

and January 2019 opinions that Plaintiff had moderate to extreme

limitations in mental functioning to be unpersuasive, summarily

asserting they were “not well supported by the overall evidence”

and “not consistent with objective findings in the record.” (R.

60.) Once more, apparently by way of further rationalization, the

ALJ underscored Plaintiff’s “lack of inpatient treatment during

the relevant period” and his “reported activities of daily living.”

(Id.)

Similarly, the ALJ discounted the opinion of Dr. Acer,

who opined Plaintiff “ha[d] marked limitations in interacting with

others, sustaining a routine, and regulating emotions,” but showed

“no evidence in limitations in ability to understand, remember, or

apply simple or complex instructions and directions, or use reason

and judgment.” (R.61.) Contrary to Dr. Acer, the ALJ found “the

overall evidence does not support greater than the moderate

limitations noted [by the ALJ’s findings], and supports mild

limitations in understanding, remembering or applying

information.” (Id.) Moreover, Dr. Acer’s opinion was based upon

“a one-time examination, and appears to be based mostly on

[Plaintiff]’s subjective complaints.” (Id.) The ALJ

characterized Dr. Acer’s limitations as “not consistent with

objective findings in the record”, as well as reiterated

Plaintiff’s “lack of inpatient treatment . . . and reported

activities of daily living.” (Id.)

Thereafter, at step four, the ALJ concluded the demands

of Plaintiff’s past relevant work exceeded his RFC for unskilled

light work and Plaintiff was “unable to perform past relevant work

as actually or generally performed.” (R. 61.) However, based

upon Plaintiff’s age, education, work experience, and RFC, at step

five, the ALJ determined jobs existing in significant numbers in

the national economy were available that Plaintiff could perform.

(R. 62.) Yet, because of Plaintiff’s limitations, and purportedly

relying upon the VE’s testimony, the ALJ narrowed the scope of

available jobs Plaintiff could perform to a garment sorter, a price

maker, and a non-postal mail clerk. (Id.) Hence, the ALJ

determined Plaintiff was not disabled. (R. 63.)

III. Analysis

A. The Parties’ Positions

Plaintiff advances two related arguments on appeal: (1)

focusing on the “paragraph B” criteria, the ALJ improperly

evaluated Plaintiff’s mental impairments (Pl. Support Memo at 15-

16); and, (2) the ALJ’s RFC assessment was not supported by

substantial evidence. (Id. at 16-18). In opposition, the

Commissioner contends: (a) focusing on the “paragraph B” criteria,

Plaintiff’s engagement in daily living activities, as well as the

absence of him having any inpatient treatment, evidenced moderate

and mild limitations only and, therefore, did not rise to the level

of establishing those criteria (Comm’r Support Memo at 13-16); and

(b) again, underscoring his daily living activities, and that

Plaintiff’s “treatment during the relevant period consisted only

of therapy and medication management”, there was sufficient

evidence supporting the ALJ’s determination of non-disability (id.

at 17-20).

B. Relevant Law

It is well-established:

Social Security proceedings are

non-adversarial and the ALJ is obliged “to

investigate the facts and develop the

arguments both for and against granting

benefits.” Sims v. Apfel, 530 U.S. 103, 111,

120 S. Ct. 2080, 147 L. Ed. 2d 80

(2000) (citation omitted). This obligation

applies even if the claimant is represented by

counsel. See, e.g., Rosa v. Callahan, 168

F.3d 72, 79 (2d Cir. 1999) (citing Perez v.

Chater, 77 F.3d 41, 47 (2d Cir. 1996)). The

ALJ’s duty to develop the record has been

described as a “bedrock principle of Social

Security law.” Batista v. Barnhart, 326 F.

Supp. 2d 345, 353 (E.D.N.Y. 2004)

(citing Brown v. Apfel, 174 F.3d 59 (2d Cir.

1999)).

Michelle C. v. Comm’r of Soc. Sec., No. 23-CV-7144, 2024 WL

1706000, at *5 (S.D.N.Y. Apr. 3, 2024), report and recommendation

adopted, 2024 WL 1702127 (S.D.N.Y. Apr. 18, 2024). Moreover, it

has been “consistently recognized that ‘an ALJ has a heightened

duty to develop the record when a claimant asserts a mental

impairment.’” Id. at *6 (quoting Gabrielsen v. Colvin, No.

12-CV-5694, 2015 WL 4597548, at *4-5 (S.D.N.Y. July 30, 2015)

(collecting cases)). Indeed, “[t]his ‘heightened duty’ derives

from the fact that a claimant’s mental illness may greatly impede

an evaluator’s assessment of a claimant’s ability to function in

the workplace, thus necessitating a more thorough review.” Id.

(quoting Piscope v. Colvin, 201 F. Supp. 3d 456, 462-63 (S.D.N.Y.

2016)).

Additionally,

[f]or claims filed on or after March 27, 2017,

[like here,] the ALJ “will not defer or give

any specific evidentiary weight, including

controlling weight, to any medical opinion(s)

or prior administrative medical finding(s),

including those from your medical sources.”

20 C.F.R. §§ 404.1520c(a), 416.920c(a).

Instead, the ALJ will evaluate the

persuasiveness of medical opinions and prior

administrative medical findings using the

following factors: (1) supportability, (2)

consistency, (3) relationship with the

claimant, (4) specialization, and (5) other

factors that tend to support or contradict a

medical opinion or prior administrative

medical finding. See id. §§ 404.1520c(c),

416.920c(c). Of those, the “factors of

supportability . . . and consistency . . . are

the most important factors.” Id.

§§ 404.1520c(b)(2), 416.920c(b)(2); see also

Loucks v. Kijakazi, No. 21-1749, 2022 WL

2189293, at *1 (2d Cir. June 17, 2022).

An ALJ is specifically required to

“explain how [he or she] considered the

supportability and consistency factors” for a

medical opinion. 20 C.F.R. §§ 404.1520c

(b)(2), 416.920c(b)(2). With respect to

supportability, “[t]he more relevant the

objective medical evidence and supporting

explanations presented by a medical source are

to support his or her medical opinion(s) or

prior administrative medical finding(s), the

more persuasive the medical opinions or prior

administrative medical finding(s) will be.”

Id. §§ 404.1520c(c)(1), 416.920c(c)(1). With

respect to consistency, “[t]he more consistent

a medical opinion(s) or prior administrative

medical finding(s) is with the evidence from

other medical and nonmedical sources in the

claim, the more persuasive the medical

opinion(s) or prior administrative medical

finding(s) will be.” Id. §§ 404.1520c(c)(2),

416.920c(c)(2).

Lena Nicole H. v. Comm’r of Soc. Sec., No. 23-CV-0826, 2024 WL

4133819, at *5 (N.D.N.Y. July 30, 2024); see also, e.g., Michelle

C., 2024 WL 1706000, at *5. The most relevant factors in

determining the persuasiveness of medical findings are the

supportability and consistency factors. See Acheampong v. Comm’r

of Soc. Sec., 564 F. Supp. 3d 261, 266 (E.D.N.Y. 2021); see also

Navedo, 616 F. Supp. 3d at 343 (“Under the new regulations, the

ALJ must ‘explain how he considered’ both the supportability and

consistency factors, as they are ‘the most important factors.’”

(quoting 20 C.F.R. §§ 404.1520c(b)(2), 416.1520c(b)(2) (emphasis

added); further citation omitted); Keli Ann D. v. Comm’r of Soc.

Sec., No. 23-CV-0765, 2024 WL 3493274, at *5 (N.D.N.Y. July 22,

2024) (“The revised regulations for evaluating opinion evidence

place substantial emphasis on both supportability and consistency

and require the ALJ to explain the analysis of each of those

factors.” (emphasis added)). The failure to properly consider and

apply the supportability and consistency factors are grounds for

remand. See Schonfeld v. Comm’r of Soc. Sec., No. 21-CV-6053,

2023 WL 2625833, at *13 (S.D.N.Y Mar. 24, 2023); Navedo, 616 F.

Supp. 3d at 344 (same; collecting cases).

While the treating physician rule is no longer in effect,

courts in this district have held the factors under the new

regulations “are very similar to the analysis under the old

treating physician rule.” Velasquez v. Kijakazi, No. 19-CV-9303,

2021 WL 4392986, at *20 (S.D.N.Y. Sept. 24, 2021) (collecting

cases); Navedo, 616 F. Supp. 3d at 344 (same; quoting Velasquez);

Cuevas v. Comm’r of Soc. Sec., No. 20-CV-0502, 2021 WL 363682, at

*9 (S.D.N.Y. Jan. 29, 2021) (“[T]he essence of the rule remains

the same, and the factors to be considered in weighing the various

medical opinions in a given claimant’s medical history are

substantially similar.”). For example, when an ALJ considers the

medical source’s relationship with the claimant, the ALJ must

consider: the length of the treating relationship; the frequency

of examinations; the purpose of the treatment relationship; the

extent of the treatment relationship; and the examining

relationship. See 20 C.F.R. § 1520c(c)(3)(i)-(v).

C. The ALJ’s Evaluation of Plaintiff’s Mental Impairments

The Court first addresses the ALJ’s step-three

determination, which Plaintiff challenges, arguing it is not

supported by substantial evidence. (See Pl. Support Memo at 15.).

Plaintiff further contends “the ALJ appears to have relied on his

own interpretation of the medical evidence,” which “was error.”

(Reply at 5.) Here, upon review of the record, the Court cannot

say there was such relevant evidence as a reasonable mind might

accept as adequate to support the ALJ’s conclusion. See, e.g.,

Lena Nicole H. v. Comm’r of Soc. Sec., No. 23-CV-0826, 2024 WL

4133819, at *9 (N.D.N.Y. July 30, 2024).

The ALJ’s paragraph B criteria determination that

Plaintiff was mildly limited in understanding, remembering and

applying information, and was moderately limited in interacting

with others; in concentrating, persisting, and maintaining pace;

and in adapting and managing himself was purportedly based upon

Dr. Acer’s May 2017 psychiatric evaluation. (See R. 56 (citing

Dr. Acer’s Evaluation10).) Yet, review of said evaluation does not

support the ALJ’s finding; instead, as Plaintiff persuasively

argues:

[E]xaminer Acer opined [Plaintiff] had marked

limitations adequately interacting with

supervisors, co-workers, and the public,

sustaining an ordinary routine, and regulating

emotions. Moreover, the ALJ did not discuss

the January 30, 2018 and the January 8, 2019

medical source statements from [Plaintiff]’s

longtime therapist, LMSW Dina Macaluso.

According to Ms. Macaluso, [Plaintiff] has

experienced extreme trauma and interaction

with others that usually triggers flashbacks

of his prior trauma. In her January 30, 2018

medical source statement, Ms. Macaluso opined

[Plaintiff] was extremely limited in his

ability to interact appropriately with

supervisors, co-workers and the public and

respond appropriately to usual work situations

and to changes in a routine work setting and

he was markedly limited in his ability to

understand, remember, and carry out simple

instructions. In her January 2019 medical

source statement, Ms. Macaluso opined

[Plaintiff] was extremely limited in his

ability to understand and remember simple

instructions, in addition to the limitation

she found in January 2018.

10 Identified as Ex. No. 6F in the Administrative Transcript.

(Pl. Support Memo at 15-16 (internal citations omitted; emphases

added).) Further, Plaintiff accurately contends: “Ms. Macaluso’s

opinion is supported by, and consistent with, [E]xaminer Acer’s

opinion that [Plaintiff] has marked limitations adequately

interacting with supervisors, co-workers, and the public,

sustaining an ordinary routine, and regulating emotions,” with Dr.

Acer further opining Plaintiff’s “psychiatric issues may hinder

his functioning.” (Reply at 4-5 (internal citations omitted).)

To the extent the ALJ found Macaluso’s opinions unpersuasive

because it is not supported by the overall evidence, such

conclusion is belied by the record, especially having considered

Dr. Acer’s comparable evaluation. See Ron I. v. Comm’r of Soc.

Sec., No. 23-CV-0489, 2024 WL 4678398, at *9 (D. Vt. Nov. 4, 2024)

(remanding case where ALJ discredited opinion of treating medical

source whose opinion ALJ stated, without explanation, was

inconsistent with overall record). Indeed, the ALJ failed to

meaningfully address the supportability and consistency factors in

arriving at his determination; such failure warrants remand. See,

e.g., Navedo, 616 F. Supp. 3d at 343 (stating an ALJ must explain

how he considers both supportability and consistency facts,

because they are the most important factors (citations omitted));

see also id. at 344 (stating failure to properly consider and apply

supportability and consistency factors is grounds for remand

(citations omitted; collecting cases)).

D. Lack of Substantial Evidence

In arguing the ALJ’s RFC determination lacked supporting

substantial evidence, Plaintiff highlights the ALJ’s reliance upon

the opinion of non-examining Consultant Lieber-Diaz. (See Reply

at 2.) He contends “the written reports of medical advisors who

have not personally examined the claimant deserve little weight in

the overall evaluation of disability.” (Id. at 2-3 (quoting Soto

v. Comm’r of Soc. Sec., No 19-CV-4631, 2020 WL 5820566, at *7

(E.D.N.Y. Sept. 30, 2020); further citation omitted).) The Court

agrees. See Poceous v. Comm’r of Soc. Sec., No. 20-CV-4870, 2024

WL 3029197, at *14 (E.D.N.Y. Jun. 17, 2024) (“[I]t is well-settled

that without the support of an opinion by an expert who actually

examined Plaintiff, the non-examining doctor’s opinion cannot

constitute substantial evidence supporting an RFC determination.”

(cleaned up; internal quotation marks and citation omitted)); see

also Soto, 2020 WL 5820566, at n.20 (same; collecting cases). The

ALJ’s reliance upon Lieber-Diaz’s opinion was misplaced.

It is perplexing the ALJ found Lieber-Diaz’s opinion to

be even “persuasive in part”. (R. 60.) In addition to being

relatively stale in comparison to subsequent opinions,

significantly Lieber-Diaz neither examined Plaintiff nor had all

his records before her. Further, as Plaintiff aptly argues,

Consultant “Lieber-Diaz’s opinion is unsupported by the other

medical source opinions in the record, including the opinions of

agency [E]xaminer Dr. Acer and treating social worker Dina

Macaluso.” (Reply at 3.) Indeed, it is well-established that the

medical opinion of a non-examining medical expert is entitled to

little weight, especially when a claimant’s impairments are based

upon his mental health. See, e.g., Skartados v. Comm’r of Soc.

Sec., No. 20-CV-3909, 2022 WL 409701, at *9 (E.D.N.Y. Feb. 10,

2022) (remanding because ALJ relied upon opinion of non-examining

agency consultant who relied upon opinion of consultant who

examined claimant only once and did not consider entirety of

claimant’s lengthy mental health history). Rather, “courts

frequently find that RFC determinations that depend entirely on

the opinions of non-examining experts and one-time consultative

examiners are not supported by substantial evidence.” Agostino v.

Kijakazi, No. 22-CV-7235, 2024 WL 1259247, at *5–6 (E.D.N.Y. Mar.

25, 2024) (internal quotation marks omitted); cf. Estrella, 925

F.3d at 98 (“We have frequently cautioned that ALJs should not

rely heavily on the findings of consultative physicians after a

single examination.” (internal quotation marks omitted)); Fintz v.

Kijakazi, No. 22-CV-0337, 2023 WL 2974132, at *5 (E.D.N.Y. Apr.

15, 2023) (“While heavy reliance on a one-time examiner’s opinion

does not automatically constitute a legal error, the Second Circuit

has warned that heavily relying on an examiner who only examined

a claimant once is inadvisable.”). “This concern is even more

pronounced in the context of mental illness where . . . a one-time

snapshot of a claimant’s status may not be indicative of h[is]

longitudinal mental health.” Estrella, 925 F.3d at 98. This

applies more so to a non-examining consultant since, in cases where

mental health is the most limiting disability, it is generally

“improper to rely on the opinion of a non-treating, non-examining

doctor[,] because the inherent subjectivity of a psychiatric

diagnosis requires the physician rendering the diagnosis to

personally observe the patient.” Ron I., 2024 WL 4678398, at *8

(citing Velazquez v. Barnhart, 518 F. Supp. 2d 520, 524 (W.D.N.Y.

2007)).

Moreover, the ALJ failed to consider how consistent Dr.

Acer’s and Macaluso’s opinions were to each other; unlike Lieber-

Diaz, Dr. Acer and Macaluso found Plaintiff had marked or extreme

limitations. Yet, without meaningful explanation, the ALJ found

Dr. Acer’s and Macaluso’s opinions were not supported by the

overall evidence. (See R. at 60-61.) First, the ALJ’s failure to

consider how consistent Dr. Acer’s and Macaluso’s opinions were

with one another is another reason to remand this case. See

Navedo, 616 F. Supp. 3d at 349. Second, the ALJ’s faulting Dr.

Acer’s opinion for being “based mostly on [Plaintiff]’s subjective

complaints” is unpersuasive given Plaintiff’s subjective

complaints are consistent with other documented mental status

examination findings. See id. at 348 and n.7. Third, the ALJ’s

failure to explain why, in making his RFC determination, certain

portions of Dr. Acer’s opinion were persuasive and other portions

were not is error and grounds for remand. See Schonfeld, 2023 WL

2625833, at *15 (“The inconsistency of the ALJ’s simultaneous

reliance and rejection of Dr. Antiaris’s findings concerning

Plaintiff’s limitations constitutes an error.”); see also

Guadalupe v. Comm’r of Soc. Sec., No. 20-CV-4522, 2021 WL 8323596,

at *13 (S.D.N.Y. Dec. 16, 2021) (finding “ALJ erred by cherry-

picking within individual opinions” where “ALJ credit[ed] part of

a certain opinion to support a finding, while simultaneously

rejecting another portion of that same opinion” without

“provid[ing] good reasons for doing so”).

Furthermore, notwithstanding acknowledging Plaintiff

suffers from the severe impairments of an affective disorder, an

anxiety disorder, and PTSD (see R. 85), the ALJ baldly concluded

“the evidence does not establish the presence of the paragraph C

criteria.” (R. 56.) Indeed, he provided no discussion whether

Plaintiff could demonstrate a minimal capacity to adapt to changes

in his environment or to demands not already a part of his daily

life, part of the paragraph C analysis. Rather, without citation

to the record or elucidation, the ALJ simply stated said record

does not so establish such a capacity. (Id.); cf. 20 C.F.R. pt.

404, subpt. P, app. 1, § 12.04. Yet, at his 2019 Disability

Hearing, Plaintiff testified, inter alia: feeling overwhelmed,

worthless, and suicidal; he has to plan out his days to avoid and

limit triggers; he is always “on edge” not knowing whether he will

have a good day or bad day; he suffers from lack of sleep, which

is caused by his lack of a permanent residence, thereby inhibiting

his effective use of his CPAP mask, as well as by nightmares and

flashbacks to his childhood traumas; he has trust issues, making

it difficult for him to be around others; when he is having a “bad

day”, which occurs about three times per week, he will isolate

himself and not even answer his friend’s calls; and, when

experiencing anxiety, he feels: extreme pressure in his chest;

overwhelmed; or, like dying. (R. 145, 150-54.) At a minimum,

such testimony presented colorable evidence warranting a further

discussion of the paragraph C criteria “of Listing 12.04

(Depressive, bipolar and related disorders) or Listing 12.06

(Anxiety and obsessive-compulsive disorders).” Otero v. Kijakasi,

No. 20-CV-7612, 2022 WL 1051164, at *14 (S.D.N.Y. Mar. 1, 2022),

report and recommendation adopted, 2022 WL 951061 (S.D.N.Y., Mar.

30, 2022); see id. at n.10 (discussing, inter alia, the paragraph

C criteria that must be established for Listings 12.04 and 12.06);

see also, e.g., Grady v. Comm’r of Soc. Sec., No. 20-CV-3739, 2024

WL 4607231, at *9 (E.D.N.Y. Oct. 28, 2024) (finding where the

record presented colorable evidence of Listing 12.06 symptoms,

further discussion of paragraph C criteria was warranted and ALJ

“was obligated to take steps to further develop the record”

(citations omitted)); Schonfeld, 2023 WL 2625833, at *11 (“The

heightened duty [of the ALJ to develop the administrative record]

derives from the fact that a [p]laintiff’s mental illness may

greatly impede an evaluator’s assessment of a plaintiff’s ability

to function in the workplace, thus necessitating a more thorough

review.” (cleaned up)); cf. Garcia v. Comm’r of Soc. Sec., 496 F.

Supp. 2d 235, 242-43 (E.D.N.Y. 2007) (where ALJ’s findings did not

satisfy the criteria of Listing 12.04, finding there was not

substantial evidence to support ALJ’s decision). Upon such a

showing, the ALJ should have taken further steps to develop the

record. See, e.g., Jackson v. Kijakazi, 588 F. Supp. 3d 558, 577

(S.D.N.Y. 2022) (stating ALJ’s duty to develop record “encompasses

not only the duty to obtain a claimant’s medical records and

reports but also the duty to question the claimant adequately about

any subjective complaints and the impact of the claimant’s

impairments on the claimant’s functional capacity.” (emphasis

added; citations omitted)).

Moreover, the ALJ’s purported rationale for his

paragraph C determination, i.e., that Plaintiff “is able to manage

daily activities independently, can shop, and spend time with

others” (R. 56) is confusing given the record presented.11 First,

11 This Court has recognized, “[i]n the Social Security disability

context, it is well-settled that the ability to engage in daily

living activities, which may be considered in assessing a

claimant’s subjective complaints . . . , does not necessarily

translate into being able to engage in work-related activities.”

Poceous v. Comm’r of Soc. Sec., No. 20-CV-4870, 2024 WL 3029197,

the ALJ fails to identify the daily activities demonstrating more

than marginal adjustment capacity. Second, as to shopping, the

ALJ failed to include the important caveat that Plaintiff testified

he shops early in the morning to avoid people. (R. 142-43.)

Third, Plaintiff consistently reported spending time with one

friend only, his childhood friend who—significantly—Plaintiff

viewed as his second therapist.12 (R. 149.) To the extent

at *12 (E.D.N.Y. June 17, 2024) (citations omitted); see also,

e.g., McLean v. Comm’r of Soc. Sec., No. 19-CV-6068, 2023 WL

8021473, at *11 (E.D.N.Y. Nov. 20, 2023) (rejecting ALJ’s reliance

on claimant’s “participation in various group therapies, helping

others, being able to travel, handling her father’s affairs, and

applying for various benefits as evidence of . . . significantly

improved symptoms” and retained “capacity for regular work”

because “such activities ‘ha[ve] little relevance to [claimant’s]

ability to function in a work setting where he would need to

interact appropriately with co-workers and take instructions from

authority figures’” (quoting Ferraro v. Saul, 806 F. App’x 13, 16

(2d Cir. 2002)).

Here, the ALJ generalized Plaintiff’s daily activities. His

summary assessment of Plaintiff’s daily activities truncates the

nuances of Plaintiff’s testimony. For example, as to driving: At

the 2019 Disability Hearing, Plaintiff testified that, although he

had a driver’s license, he does not drive, explaining: “[I]t’s

hard for me to drive. I feel when I’m driving, like seeing cars

coming towards me, from my car accident, it’s something that

plagues me. So, I try not to drive as much as I can.” (R.142-

43.) He further clarified that he had driven approximately two

weeks prior to the Hearing, going to the grocery store early to

avoid people. (R. 143.) Another example of the ALJ obfuscating

the evidence is his identifying Plaintiff’s listening to music as

a daily activity; however, Plaintiff utilized listening to music

as a means of dealing with his depression and anxiety. (R. 383.)

Indeed, it was part of his plan to assuage anxiety attacks. (See

R. 578.)

12 Plaintiff further explained his friend: listens to him; gives

him advice; and, checks up on him when he does not answer his

friend’s phone calls. (R. 149, 154.)

Plaintiff mentioned two other friends, he also stated they “live

out of state” (R. 152); thus, it is puzzling how Plaintiff would

be able to spend time with them. In sum, the ALJ’s rote recitation

of the paragraph C standard together with his lack of explanation

for his paragraph C determination frustrates meaningful review of

his decision. See Jablonski v. Comm’r of Soc. Sec., No.

18-CV-0597, 2019 WL 4439453, at *4 (W.D.N.Y., 2019) (“[T]he ALJ

provided no explanation of how he found the paragraph (C) criteria

were not satisfied, precluding this Court’s meaningful review.

Instead, the ALJ simply regurgitated the paragraph (C) criteria

. . . .”). “As such, in the absence of meaningful analysis by the

ALJ of the paragraph (C) criteria, the Court finds remand for

further proceedings is necessary.”13 Id.

13 The Court notes the ALJ’s consideration (or lack thereof) of

part of the VE’s testimony also gives the Court pause. At

Plaintiff’s 2019 Disability Hearing, when the ALJ questioned the

VE about the subject hypothetical individual, he posed an

additional scenario for the VE’s consideration: Would there be

jobs available for the hypothetical individual if that individual

was “either off task for more than 15 percent of the workday in

addition to normal breaks or absent from work two or more days per

month”. (R. 160.) The VE testified either scenario “would

preclude competitive employment”. (Id.) Yet, in his determination

that Plaintiff was not disabled, the ALJ glaringly failed to take

into consideration the VE’s testimony about an individual being

off-task 15 percent of the time or being absent two or more days

per month. (R. 62-63.) Indeed, he did not even provide the

required explanation for his decision to ignore this portion of

the VE’s testimony, which would require remand for the ALJ to do

so. See Karle v. Colvin, No. 12-CV-3933, 2013 WL 4779037, at *3

(S.D.N.Y. Sept. 6, 2013) (remanding case where ALJ ignored VE’s

testimony that it would be difficult to find employment for

hypothetical individual who would be excessively off task); see

Finally, the Court observes that the ALJ noted an

apparent gap in Plaintiff’s treatment between August 2016 and

Summer 2018, which he relied upon, in part, to conclude Plaintiff

does not suffer marked or extreme functional limitations. (See R.

60.). However, said “gap” appears to coincide with the reports

from the Suffolk County Social Services (“SCSS”) Employment

Program (hereafter, the “Reports”), which Reports show the SCSS

concluded Plaintiff was exempt from its Employment Program for a

period running from May 24, 2017 through May 5, 2018, because of

his mental health. (See R. 471-81.) Other than acknowledging

their submission (see R. 140), at the 2019 Disability Hearing, the

ALJ did not inquire about Plaintiff’s involvement in the SCSS

Employment Program or his corresponding treatment, if any, as

contemplated by that Program. In his decision, the ALJ summarily

rejected the Reports as unpersuasive and “inconsistent with the

overall evidence.” (R. 60.) Yet, if nothing else, questioning

Plaintiff about the SCSS Employment Program might have provided

relevant gap-fill, i.e., further medical opinions for the time-

period in question. See, e.g., Ron I., 2024 WL 4678398, at *5

(explaining, “while ALJs may disregard the decisions, conclusions,

also Karle v. Astrue, No. 12-CV-3933, 2013 WL 2158474, *18

(S.D.N.Y. May 17, 2013) (recommending case be remanded because,

inter alia, ALJ failed to provide required explanation for his

decision to ignore VE’s testimony regarding hypothetical

individual who would require time off task, thereby making it

difficult to find said individual employment) (collecting cases).

or findings of other benefits programs, they may not disregard the

medical opinions underlying those decisions, conclusions, or

findings, to the extent they otherwise contain competent evidence”

(citation omitted)). Given the Reports recognize Plaintiff’s

mental health as a barrier to employment, the Reports addressed

the submission of treatment assessments, and the ALJ’s duty to

develop the record, especially when faced with a claimant asserting

mental health impairments, see Schonfeld, 2023 WL 2625833, at *11,

the ALJ’s failure to make further inquiries about underlying

treatment assessments provides an independent basis to remand this

case. See, e.g., Grady, 2024 WL 4607231, at *8-9 (finding ALJ’s

failure to fully develop administrative record was a threshold

basis to remand case) (collecting cases); see also Ron I., 2024 WL

4678398, at *6 (remanding case where ALJ failed to consider

“supporting evidence” including medical opinions from another

agency; collecting cases).

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s

Motion (ECF No. 17) is GRANTED, and the Commissioner’s Cross-Motion

(ECF No. 20) is DENIED. This matter is REMANDED for proceedings

consistent with this Memorandum and Order.

IT IS FURTHER ORDERED that the Clerk of the Court enter

judgment accordingly and, thereafter, mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: December 11, 2024

Central Islip, New York