# Sierra Diaz v. Commissioner of Social Security

> District Court, N.D. New York · August 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10765685

## Case

- **Court:** District Court, N.D. New York
- **Decided:** August 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10765685

## How later opinions describe it (automated extraction)

- finding that the ALJ erred where “she failed to explain how [a treating physician’s opinion] was unsupported by medically acceptable evidence or inconsistent with other substantial evidence in the record”
- finding error requiring remand where the ALJ failed to provide a sufficient rationale for rejecting opinions from the claimant’s teachers

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

MARI ELI S.D., on behalf of S.Y.C.S., a minor,
Plaintiff,
V.
No. 5:23-CV-00314
5 COMMISSIONER OF SOCIAL SECURITY, (BKS/CFH)

Defendant.

APPEARANCES: OF COUNSEL:
Olinsky Law Group HOWARD D. OLINSKY, ESQ.
250 South Clinton Street — Suite 210
Syracuse, New York 13202
Attorney for plaintiff

Social Security Administration GEOFFREY M. PETERS, ESQ.
Office of the General Counsel
6401 Security Boulevard
Baltimore, Maryland 21235
Attorney for defendant
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER’
Mari Eli S.D.? (“plaintiff”) brings this action on behalf of her minor son, S.Y.C.S.
(“claimant”), pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the
Commissioner of Social Security (“the Commissioner’) denying her application for

This matter was referred to the undersigned for completion of a Report and Recommendation in
accordance with General Order 18 and Local Rule 72.3(d). See Dkt. No. 6.
2 In accordance with guidance from the Committee on Court Administration and Case Management of the
Judicial Conference of the United States, which was adopted by the Northern District of New York in 2018
to better protect personal and medical information of non-governmental parties, this Report-
Recommendation and Order will identify plaintiff's last name by initial only.

supplemental security income (“SSI”). See Dkt. No. 1. Plaintiff moves for a remand for
a calculation of benefits, and alternatively requests that the Commissioner's final
decision be vacated and remanded for further proceedings. See Dkt. No. 16. The
Commissioner moves for the Commissioner’s decision to be affirmed. See Dkt. No. 17.
Plaintiff filed a reply. See Dkt. No. 18. For the following reasons, it is recommended
“I that plaintiff's motion be granted, and the Commissioner’s decision be reversed and
remanded for further proceedings.

1. Background
On May 10, 2012, plaintiff filed an application for SSI benefits on behalf of
claimant. See T. at 246-51.° Claimant, then age 4, was found disabled as of May 1,
2012, due to a speech and language delay and a learning disorder. See id. at 61-68,
77-83, 110. In March 2017, a disability hearing officer conducted a continuing disability
review and concluded that, as of December 1, 2016, claimant was no longer disabled
because of “significant medical improvement.” Id. at 59, 110-14. This determination
was upheld upon reconsideration. See id. at 107. Plaintiff appealed and requested a
hearing, see id. at 121, and a hearing was held before Administrative Law Judge (“ALJ”)
Bruce S. Fein on July 3, 2018. See id. at 33-57. On November 6, 2018, ALJ Fein
issued an unfavorable decision. See id. at 8-26.
Plaintiff timely filed a request for review by the Appeals Council. See T. at 242-
45. On September 20, 2019, the Appeals Council denied plaintiff's request for review.

followed by a number refers to the pages of the administrative transcript filed by the Commissioner.
See Dkt. No. 10. Citations to the administrative transcript refer to the pagination in the bottom, right-hand
corner of the page.

See id. at 1-3. Plaintiff timely commenced an action before this Court. See id. at 699-
700. On March 27, 2020, United States Magistrate Judge Daniel J. Stewart reversed
the Commissioner’s decision and remanded for further proceedings per stipulation
between the parties. See id. at 706-09. On June 17, 2020, the Appeals Council
vacated the ALJ’s decision and remanded the case to the ALJ for further proceedings,
o specifically noting:
In evaluating the claimant's functioning, the Administrative
Law Judge concludes the claimant has less than marked
limitations in acquiring and using information and health and
physical well-being and no limitations in attending and
completing tasks, interacting and relating with others, moving
about and managing objects, and caring for himself.
However, the record contains later reports from 2017 and
2018, which seemed to demonstrate a worsening in the
claimant’s — functioning. In particular, the Teacher
Questionnaire from October 2017 [and the opinion of Mihal
ia Simionescu, M.D., from November 2017], found serious
problems [and limitations] . . . These opinions of greater
limitation appear to be corroborated by the August 2017
findings from the school psychologist[.] . .. Therefore, further
evaluation is warranted.
Id. at 665-66. The Appeals Council instructed the ALJ to (1) “[a]ttempt to obtain
updated school records and, if warranted and available, obtain a consultative mental
status examination and medical source statements regarding the child’s ability to
perform age-appropriate activities”; (2) “[flurther consider the severity of the claimant's
impairments and, in determining functional equivalency, address each pertinent domain
pursuant to 20 CFR 416.926a and provide appropriate rationale with specific references
to evidence of record in support of the assessed limitations”; and (3) “[i]f necessary and
available, obtain evidence from a pediatric medical expert to clarify the nature and
severity of the claimant’s impairments[.]” Id. at 666.

ALJ Kenneth Theurer held a hearing on October 2, 2020, and a supplemental
hearing on April 2, 2021. See T. at 623-62. The ALJ issued an unfavorable decision on
April 12, 2021. See id. at 591-613. Plaintiff bypassed written exceptions and, again,
commenced an action before this Court. See id. at 1150-56. On April 5, 2022, United
States District Judge Lawrence E. Kahn reversed the Commissioner's decision and
remanded for further proceedings per stipulation between the parties. See id. On June
8, 2022, the Appeals Council vacated the ALU’s decision and remanded the case to the
ALJ for further proceedings, specifically noting that “the hearing decision did not
evaluate whether the child claimant’s impairments functionally equaled the Listings in
the domain categories for each of the age categories applicable to the claimant during
the adjudicated period [and, thus, flurther evaluation is required.” Id. at 1159. The
m| Appeals Council instructed the ALJ, upon remand, to (1) “[o]btain additional evidence
concerning the child claimant’s impairments in order to complete the administrative
record in accordance with the regulatory standards regarding consultative examinations
and existing medical evidence”; and (2) “[f]urther evaluate whether the child claimant’s
disability is continuing or has ended in accordance with 20 CFR 416.994a[.]” Id. at
1159-60.
On December 16, 2022, ALJ Theurer held a hearing. See T. at 1103-15. On
January 6, 2023, the ALJ issued an unfavorable decision. See id. 1067-90. Plaintiff
bypassed written exceptions, and the Appeals Council did not assume jurisdiction within
sixty days, making the ALJ’s determination the final decision of the Commissioner. See
id.; see also 20 C.F.R. § 416.1484 (c),(d). Plaintiff timely commenced this action on
March 8, 2023. See Dkt. No. 1.

ll. Legal Standards
A. Standard of Review
In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),
° 1388(c)(3); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d
Cir. 1990). Rather, the Commissioner's determination will only be reversed if the
correct legal standards were not applied, or it was not supported by substantial
evidence. See Johnson v. Bowen, 817 F.2d 983, 985-86 (2d Cir. 1987); see also Berry
v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial evidence is “more than a
mere scintilla,” meaning that in the record one can find “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Halloran v.
Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam) (citing Richardson v. Perales, 402
U.S. 389, 401 (1971) (internal citations omitted)). The substantial evidence standard is
“a very deferential standard of review . . . [This] means once an ALJ finds facts, we can
reject [them] only if a reasonable factfinder would have to conclude otherwise.” Brault v.
Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (citation,
emphasis, and internal quotations marks omitted). Where there is reasonable doubt as
to whether the Commissioner applied the proper legal standards, the decision should
not be affirmed even though the ultimate conclusion is arguably supported by
substantial evidence. See Martone v. Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999)
(citing Johnson, 817 F.2d at 986). However, if the correct legal standards were applied
and the ALJ's finding is supported by substantial evidence, such finding must be

sustained “even where substantial evidence may support the plaintiff's position and
despite that the court’s independent analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citation
omitted).
B. Continuing Disability Review
o To initially qualify as disabled under the Social Security Act, a child under the age
of eighteen must have “a medically determinable physical or mental impairment, which
results in marked and severe functional limitations, and which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i). An ALJ follows a three-step
sequential evaluation to determine whether a child is entitled to SSI benefits. See
Encarnacion ex rel. George v. Astrue, 568 F.3d 72, 75 (2d Cir. 2009). “First, the child
must not be engaged in ‘substantial gainful activity.” Id. (quoting 20 C.F.R. §
416.924(a)). “Second, the child ‘must have a medically determinable impairment(s)’
that is ‘severe’ in that it causes ‘more than minimal functional limitations.” Id. (quoting
20 C.F.R. § 416.924(c)). “Third, the child’s impairment or combination of impairments
must medically or functionally equal an impairment listed in an appendix to the
regulations.” Id. (citing 20 C.F.R. § 416.924(d)).
“Once there has been a finding of disability, a claim is reviewed periodically to
assess if there has been medical improvement.” Roxanne H. o/b/o A.H. v. Comm’r of
Soc. Sec., No. 6:20-CV-06688 (EAW), 2022 WL 4493931, at *2 (W.D.N.Y. Sept. 28,
2022) (citing 20 C.F.R. § 416.994a(a)(1) (“There is a statutory requirement that, if you
are eligible for disability benefits as a disabled child, your continued eligibility for such

benefits must be reviewed periodically.”)). An ALJ follows a different three-step
“medical improvement review standard (MIRS) sequential evaluation” to determine
whether a child continues to be entitled to SSI benefits. SSR 05-03P, 2005 WL
6491605, at *1 (Apr. 27, 2005).
At the first step of the continuing disability review, the ALJ “determine[s] whether
there has been medical improvement in the impairment(s) [that the claimant] had at the
time of [the] most recent favorable determination or decision,” also Known as the
comparison point decision (“CPD”). 20 C.F.R. § 416.994a(b)(1). “Medical improvement
is any decrease in the medical severity of [the] impairment(s) [that] was present [and
documented] at the time of the [CPD].” Id. § 416.994a(c). “Although the decrease in
severity may be of any quantity or degree, ... minor changes in. . . signs, symptoms,
laboratory findings” are disregarded. ld. “If there has been no medical
improvement,” then the claimant continues to be disabled, “unless one of the exceptions
to medical improvement . . . applies.” Id. § 416.994a(b)(1). “If there has been medical
improvement, [the ALJ will] proceed to step [two].” SSR 05-03P, 2005 WL 6491605, at
“41 (Apr. 27, 2005).
At step two, the ALJ must determine “whether the [claimant's] CPD impairment(s)
| Still meets or medically or functionally equals ‘the severity of the listed impairment’ that it
met or equaled at the time of the CPD.” SSR 05-03P, 2005 WL 6491605, at *1 (Apr. 27,
2005) (quoting 20 C.F.R. § 416.994a(b)(2)). “If the CPD impairment(s) still meets or
medically or functionally equals the severity of the listing [that the ALJ] considered at the
CPD, [the ALJ will] find that the child is still disabled.” Id. “If the CPD impairment(s)

does not still meet or equal the severity of that listed impairment, [the ALJ will] proceed
to step [three].” Id.
Lastly, at step three, the ALJ must determine whether the claimant is disabled,
considering all the impairments that the claimant has now, including any not present or
not considered at the CPD. See 20 C.F.R. § 416.994a(b)(3). The ALJ “determine[s] if
| the child’s current impairment is severe.” SSR 05-03P, 2005 WL 6491605, at *1 (Apr.
27, 2005). “[A] medically determinable impairment” is not severe if it “is a slight
abnormality or a combination of slight abnormalities that causes no more than minimal
functional limitations.” 20 C.F.R. § 416.924(c). “If the impairment(s) is not severe, [the
ALJ will] find that the child’s disability has ended.” SSR 05-03P, 2005 WL 6491605, at
“1 (Apr. 27, 2005). “If the impairment(s) is severe, [the ALJ will] consider whether it
meets or medically equals a listing.” Id. (citing 20 C.F.R. §§ 416.924(d), 416.925,
416.926). “If it does, [the ALJ will] find that the child’s disability continues.” Id. “If not,
[the ALJ will] consider whether it functionally equals the listings.” Id. (citing 20 C.F.R. §
416.926a). “If it does, [the ALJ will] find that the child’s disability continuesf[; i]f not, [the
ALJ will] find that the child’s disability has ended.” Id.; see 20 C.F.R. §
416.994a(b)(3)(iii); see also Roxanne H. o/b/o A.H., 2022 WL 4493931, at *2.
In determining “whether [an] impairment or combination of impairments
functionally equals the listings,” the ALJ will assess the claimant’s functioning in terms
of six domains: (1) acquiring and using information; (2) attending and completing tasks;
(3) interacting and relating with others; (4) moving about and manipulating objects;
(5) caring for yourself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b).
“For a child’s impairment to functionally equal a listed impairment, the impairment must

‘result in “marked” limitations in two domains of functioning or an “extreme” limitation in
one domain.” Encarnacion, 568 F.3d at 75 (quoting 20 C.F.R. § 416.926a(a)). “A
marked limitation is more than moderate but less than extreme and interferes seriously
with a child’s ability to independently initiate, sustain, or complete activities.” Id.
(internal quotation marks and citations omitted). “An extreme limitation is more than
| marked and interferes very seriously with a child’s ability to independently initiate,
sustain, or complete activities.” Id. (internal quotation marks and citations omitted).

lll. The ALJ’s Decision
Prior to applying the three-step MIRS sequential evaluation, the ALJ first noted
that “[t]he most recent favorable medical decision finding that the claimant was disabled
the determination dated December 12, 2012[, which] is known as the ‘comparison
point decision’ or CPD.” T. at 1077. The ALJ further noted that, “[a]t the time of the
CPD, the claimant had the following medically determinable impairments: learning
disorder and speech/language impairment[,]’ which “were found to functionally equal
the listings (20 CFR 416.924(d) and 416.926a).” Id.
At step one, the ALJ determined that “[m]edical improvement occurred as of
| December 1, 2016[,]” as “there had been a decrease in medical severity of the
impairments present at the time of the CPD.” T. at 1077 (citing 20 C.F.R. §
416.994a(c)). At step two, the ALJ found that “[s]ince December 1, 2016, the
impairments that the claimant had at the time of the CPD have not functionally equaled
the Listing of Impairments[.]’ Id. at 1079 (citing 20 C.F.R. §§ 416.994a(b)(2), 419.926a,
and SSR 05-03P). Prior to reaching step three, the ALJ noted that “[s]ince December 1,

2016, the claimant has had the following severe impairment: attention deficit
hyperactive disorder.” Id. at 1088 (citing 20 C.F.R. § 416.924(c)). At step three, the
ALJ determined that “[s]ince December 1, 2016, the claimant has not had an
impairment or combination of impairments that meets or medically equals one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.925 and
o 416.926),” or “an impairment or combination of impairments that functionally equals the
listings (20 CFR 416.924(d) and 416.926a).” Id. at 1089-90. The ALJ, therefore,
concluded that “[t]he claimant's disability ended as of December 1, 2016, and the
claimant has not become disabled again since that date.” Id. at 1090.

IV. Discussion
A. The Parties’ Arguments‘
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence.
See Dkt. No. 16 at 10, 12-15. Specifically, plaintiff contends that “[t]he ALJ failed to
provide legitimate reasons for rejecting the medical opinion of treating psychiatrist Mihal
Simionescu, M.D., the fourth grade teacher's questionnaire in Exhibit 16E, and the sixth
grade teachers’ questionnaire in Exhibit 36E.” Id. at 9. The Commissioner asserts,
however, that “[s]ubstantial evidence supports the ALJ’s decision finding that, as of
December 1, 2016, medical improvement had occurred and [p]laintiff was no longer
disabled from his impairments.” Dkt. No. 17 at 8. Specifically, the Commissioner
argues that (1) “the ALJ reasonably gave little weight to Dr. Simionescu’s opinion”; and
(2) “[p]laintiff's teachers are non-medical sources under the regulations and, thus, their

4 The Court's citations to the parties’ briefs refer to the pagination generated by CM/ECF, located in the
header of each page.
10

opinions do not demand the same deference as a physician's opinion,” but,
nevertheless, “contrary to [p]laintiff's objections, the ALJ supportably explained why he
gave only some weight to the . . . assessments from [p]laintiffs teachers.” Id. at 12, 16.
B. Dr. Simionescu’s Medical Opinion
Dr. Simionescu completed a medical source statement on November 1, 2017,
o noting that he met with claimant on a monthly basis for medication management. See
T. at 520-23. Dr. Simionescu diagnosed claimant with attention-deficit hyperactivity
disorder, combined type; oppositional defiant disorder; and unspecified disorder of
psychological development. See id. at 520.° Dr. Simionescu rated claimant's abilities
to perform basic mental activities within each of the six domains of functioning, opining
that claimant would have “extreme loss”¢ in multiple categories under the domain of
“attending and completing tasks”; “marked loss”’ and “moderate loss”® in multiple
categories under the domains of “acquiring and using information,” “interacting and
relating with others,” and “caring for yourself’; and “no/mild loss”? in multiple categories
under the domain of “moving about and manipulating objects.” Id. at 520-22. Dr.

5 Dr. Simionescu appears to have used diagnosis codes from the International Statistical Classification of
Diseases and Related Health Problems (“ICD”), a medical classification list published by the Worth Health
| Organization. See, e.g., International Statistical Classification of Diseases and Related Health Problems
(ICD), WORLD HEALTH ORGANIZATION, https:/Avww.who. int/standards/classifications/classification-of-
diseases (last visited July 25, 2024).
6 “Extreme loss” is defined in the check-box form to mean that there is a “[fjunctional limitation [that]
interferes very seriously with a child’s ability to independently initiate, sustain, or complete [the] named
activity. (Valid test score three standard deviations or more below the mean on a comprehensive
standardized test designed to measure ability or functioning in that domain).” T. at 520.
7 “Marked loss” is defined in the check-box form to mean that there is a “[flunctional limitation [that]
interferes seriously with the child’s ability to initiate, sustain, or complete activities. (Equivalent of the
functioning expected when standardized test scores are at least two, but less than three, standard
deviations below the mean).” T. at 520.
8 “Moderate loss” is defined in the check-box form to mean that there is a “[fJunctional limitation [that]
causes some loss of [the child’s] ability to initiate, sustain, or complete activities.” T. at 520.
9 “No/mild loss” is defined in the check-box form to mean that there is “[nJo significant loss of ability in the
named activity.” T. at 520.
11

Simionescu further described claimant’s “health and physical well-being,” noting that his
conditions include “inattention, impulsivity, [and] oppositional behavior’ but his
functioning improved “in all domains” after taking medication. Id. at 522-23. Dr.
Simionescu concluded that claimant “exhibits . . . Known difficulties (bad to moderate to
moderate — severe difficulties) in functioning in all settings [and he] needs ongoing
treatment to monitor gains.” Id. at 523.
The ALJ found that “[lJittle weight is given to the statement of treating psychiatrist
Mihal Simionescu, M.D., who identified functional limitations variously from none to
extreme limitation.” T. at 1081 (citing T. at 520-23). The ALJ noted that,
[a]lthough from a treating specialist who reported treating the
claimant monthly, the doctor indicated the nature of the
treatment relationship was only for medication management.
The treatment records addressing the claimant's functioning
significantly contradict the degree of restriction identified by
this source, noting normal interaction and behavior with peers,
teachers, and siblings, and successful completion of
academic tasks. Medication has significantly improved the
claimant's attention and behavior.
Id. at 1081-82 (citing T. at 363, 463-64, 468-69, 520, 524, 587-88, 918, 932, 1551-53,
1575, 1584).
Plaintiff challenges the ALJ’s assessment of Dr. Simionescu’s opinion. See DKt.
m| No. 16 at 9-13. Plaintiff notes that “[t]he ALJ gave the following reasons for
rejecting Dr. Simionescu’s opinion: 1) the treatment relation was only for medication
management; 2) his opinion is contradicted by records in Exhibits 14F, 16F, and 29F;
and 3) medication has significantly improved [c]laimant’s attention and behavior.” Id. at
10 (citing T. at 1081-82). Plaintiff argues, however, that “[t]hese reasons do not
constitute a legitimate reason, supported by substantial evidence, to reject Dr.

12

Simionescu’s treating opinion.” Id. Plaintiff contends that “[nJotably, this rationale
provided by the ALJ to reject Dr. Simionescu’s opinion mirrors the earlier reasons
provided by the ALJs in the November 6, 2018 decision and April 12, 2021 decision’;
“[t]hus, this reasoning is the same as what the Appeals Council previously found to be
flawed in its June 17, 2020 order.” Id. Plaintiff asserts that, “[bJecause Dr.
Simionescu’s opinion as to [c]laimant’s functioning is consistent with the record as
whole, greater weight should be given to his opinion[.]” Dkt. No. 18 at 2.
1. Treating Physician Rule
For claims, like plaintiff's, that were filed before March 27, 2017, “the opinion of a
claimant's treating physician as to the nature and severity of the impairment is given
‘controlling weight’ so long as it is ‘well-supported by medically acceptable clinical and
| laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the case record.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)
(citations omitted); see Mitchell v. Comm’r of Soc. Sec., No. 18-CV-38 (NSR/PED),
2019 WL 1472900, at *22 (S.D.N.Y. Mar. 8, 2019) (explaining that, when the ALJ is
conducting a continuing disability review for a child claimant, greater weight is accorded
to the opinions of treating physicians), report and recommendation adopted, 2019 WL
1470050 (S.D.N.Y. Apr. 3, 2019). “[W]hen a treating source’s opinion contradicts other
substantial evidence in the record, such as the opinions of other medical experts, an
ALJ may afford it less than controlling weight.” Samantha S. v. Comm’r of Soc. Sec..,
385 F. Supp. 3d 174, 184 (N.D.N.Y. 2019).
If an ALJ gives a treating physician’s opinion less than controlling weight, he or
she must consider various factors in determining how much weight, if any, to give the

13

opinion, including: (1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship; (3) what evidence
supports the treating physician’s report; (4) how consistent the treating physician’s
Opinion is with the record as a whole; (5) the area of specialization of the physician in
contrast to the condition being treated; and (6) any other factors which may be
o significant in the claimant’s particular case. See 20 C.F.R. §§ 404.1527(c), 416.927(c).
“[A]n ALJ need not mechanically recite these factors as long as the record reflects a
proper application of the substance of the rule.” Samantha S., 385 F. Supp. 3d at 184;
see David E. v. Saul, No. 5:20-CV-466 (DJS), 2021 WL 1439668, at *4 (N.D.N.Y. Apr.
16, 2021) (“Where the ALJ’s reasoning and adherence to the regulation is clear, and it
is obvious that the substance of the treating physician rule was not traversed, no slavish
m| recitation of each and every factor” of 20 C.F.R. §§ 416.927 & 404.1527(c) is required.”)
(internal quotation marks and citations omitted). “The failure to provide good reasons
for not crediting the opinion of a claimant’s treating physician is a ground for remand.”
Greek, 802 F.3d at 373 (internal quotation marks and citations omitted).
“[T]he ALJ is merely a fact-finder and, as such, has no ability to disregard a
medical opinion without a contrary medical opinion or an overwhelmingly compelling
| circumstantial critique.” Amy C. v. Comm’r of Soc. Sec., No. 3:20-CV-0546 (ML), 2021
WL 1758764, at *8 (N.D.N.Y. May 4, 2021) (quoting Wagner, 906 F.2d at 861). “[T]he
ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.” Id.
(citation omitted) (alteration in original). “A circumstantial critique by non-physicians,
however thorough or responsible, must be overwhelmingly compelling in order to
overcome a medical opinion.” Id. at *9 (citation omitted). The Second Circuit has

14

reiterated application of this standard. See Riccobono v. Saul, 796 F. App’x 49, 50 (2d
Cir. 2020) (summary order) (“And while the ALJ may have given appropriate reasons for
not according controlling weight to some of the opinions of [the plaintiff's] treating
physicians, she must still base her conclusion on some medical opinion or otherwise
articulate the overwhelmingly compelling reasons for not doing so.”). This Court has
continued to apply the overwhelmingly compelling standard because “[t]his requirement
allows courts to properly review ALJs’ decisions and provides information to claimants
regarding the disposition of their cases, especially when the dispositions are
unfavorable.” Ashley v. Comm’r of Soc. Sec., No. 5:14-CV-00040, 2014 WL 7409594,
at *1 (N.D.N.Y. Dec. 30, 2014). “While claimants are not entitled to have their treating
physician’s opinion be automatically controlling, ‘[they are] entitled to be told why the
m| Commissioner has decided . . . to disagree with [the claimant’s treating physician].” Id.
at *2 (alterations in original) (quoting Rolon v. Comm’r of Soc. Sec., 994 F. Supp. 2d
496, 508 (S.D.N.Y. 2014)).
Here, as claimant’s treating psychiatrist, Dr. Simionescu’s opinion is entitled to
application of the treating physician rule. See, e.g., Santiago v. Comm’ of Soc. Sec.,
No. 19-CV-4001 (KPF/KNF), 2020 WL 6530884, at *7 (S.D.N.Y. May 5, 2020)
| (acknowledging that “a psychiatrist is a physician who specializes in the treatment of
mental illness and emotional disorders,” and, as such, is entitled to application of the
treating physician rule), report and recommendation adopted sub nom. Morales
Santiago v. Comm’r of Soc. Sec., 2020 WL 4463157 (S.D.N.Y. Aug. 3, 2020). As an
initial matter, the ALJ properly considered the “nature and extent of the treatment
relationship” between Dr. Simionescu and claimant, noting that, “[a]lthough from a

15

treating specialist who reported treating the claimant monthly, the doctor indicated the
nature of the treatment relationship was only for medication management.” 20 C.F.R. §
404.1527(c)(2)(ii); T. at 1081. To the extent plaintiff challenges the ALJ’s consideration
of the “medication management” nature of the treatment relationship, such an argument
is without merit. See Dkt. No. 18 at 1.1° As the Commissioner contends, it was not
erroneous for the ALJ to consider this as a factor when determining how much weight to
give Dr. Simionescu’s opinion. See Dkt. No. 17 at 12; see also Meyer v. Saul, No. 19-
CV-0973L, 2020 WL 3489406, at *4 (W.D.N.Y. June 26, 2020) (upholding the ALJ’s
determination to give a treating physician’s opinions ‘little’ weight where, inter alia, the
treating physician’s “visits with plaintiff were brief, infrequent, and limited to the purpose
of managing plaintiffs medications, which were almost always found to be effective and
not in need of any adjustment”); Dukett v. Colvin, No. 5:14-CV-1435 (GLS/DJS), 2016
WL 4486170, at *2 (N.D.N.Y. Aug. 25, 2016) (upholding ALJ’s decision to discount
treating psychiatrist’s opinion in part because “Dukett’s relationship with her psychiatrist
was limited . . . indeed, the relationship consisted of only medication management’).
However, the remainder of the ALJ’s single paragraph explanation regarding Dr.
Simionescu’s opinion “runs afoul of the treating physician rule.” Agapito v. Colvin, No.

10 Plaintiff also argues that the ALJ wrongfully gave more weight “to Dr. Grassl, who saw [c]laimant only
on one occasion, and to the non-examining opinion of Dr. Williams,” instead of Dr. Simionescu, a treating
physician who had a longer treating relationship. Dkt. No. 18 at 2. “The fact that the ALJ gave more
weight to the opinions of a one-time examiner and of a physician who never laid eyes on [claimant] than
he gave to that of a physician who saw him frequently over a period of time is [a] reason to question the
ALJ’s decision.” Reginald T. v. Comm’r of Soc. Sec., No. 6:20-CV-6252 (LJV), 2022 WL 1607024, at *2
n.8 (W.D.N.Y. May 20, 2022) (citing Estrella v. Berryhill, 925 F.3d 90, 98 (2d Cir. 2019) (The ALJ “should
not rely heavily on the findings of consultative physicians after a single examination [because] a one-time
snapshot of a claimant’s status may not be indicative of [his] longitudinal mental health . . . The opinion of
[a consultative examiner], in other words, [ ] does not provide a good reason for minimizing that of [a
treating physician].”) (internal quotation marks and citation omitted)). “Because [the undersigned
recommends] remand[ing] on other grounds, however, [the undersigned declines to] reach the issue of
whether the ALJ erred in crediting the opinions of consultants at the expense of the opinion of a treating
physician.” Reginald T., 2022 WL 1607024, at *2 n.8.
16

12-CV-2108 (PAC/HBP), 2014 WL 774689, at *18 (S.D.N.Y. Feb. 20, 2014); see, e.g.,
Ashley, 2014 WL 7409594, at *3 (“The ALJ’s single, short and conclusory paragraph
fails to clearly identify any significant deficits with [plaintiff's treating physician’s] opinion
or to address the required factors set forth by 20 C.F.R. § 404.1527(c)(1)-(6)”).
Specifically, “[t]he ALJ did not provide ‘good reasons’ for his weight assessment of Dr.
[Simionescu’s] opinion.” Randall v. Berryhill, No. 3:17-CV-1354 (MPS), 2018 WL
4204438, at *6 (D. Conn. Sept. 4, 2018); see Santiago, 2020 WL 6530884, at *8 (“Since
the record establishes that the ALJ’s reasons for rejecting [the treating physician’s]
opinions were erroneous, those erroneous reasons cannot constitute good reasons for
rejecting the opinion of [the plaintiff's] treating physician; thus, . . . the ALJ’s decision is
not supported by substantial evidence.”).
First, the ALJ does not mention the “the length of the treatment relationship”
between claimant and Dr. Simionescu. 20 C.F.R. § 416.927(c)(2)(i) (“Generally, the
longer a treating source has treated [the claimant] and the more times [the claimant has]
been seen by a treating source, the more weight [the ALJ] will give to the source’s
medical opinion.”). This constitutes error. See Richardson v. Barnhart, 443 F. Supp. 2d
411, 418 (W.D.N.Y. 2006) (“I find that the ALJ erred in his analysis [because hlis
decision did not address the length of the treatment relationship between Dr. Donahue
and plaintifff.]”); see also Hidalgo v. Colvin, No. 12-CV-9009 (LTS/SN), 2014 WL
2884018, at *20 (S.D.N.Y. June 25, 2014) (finding that the ALJ’s assessment of the
treating physician’s opinion was “inadequate,” where the ALJ failed to, inter alia,
mention the length of the treatment relationship between the physician and the
claimant); Steele ex rel. M.D. v. Astrue, No. 09-CV-347 (NAM/VEB), 2011 WL 3841534,

17

at *5 (N.D.N.Y. Aug. 10, 2011) (remanding where “[t]he ALJ twice indicated his belief
that the treating relationship between [the c]laimant and Dr. Freshman was ‘unclear”
but “[bJefore deciding how much weight to afford Dr. Freshman’s opinion, it was
incumbent upon the ALJ to seek clarification regarding the length of the treatment
relationship”), report and recommendation adopted, 2011 WL 3841536 (N.D.N.Y. Aug.
°/29, 2011).
Second, the ALJ failed to discuss “what evidence supports” Dr. Simionescu’s
opinion. Adams v. Colvin, No. 6:14-CV-1540, 2016 WL 3566859, at *4 (N.D.N.Y. June
24, 2016); see C.F.R. § 416.927(c)(3) (“The more a medical source presents relevant
evidence to support a medical opinion, particularly medical signs and laboratory
findings, the more weight [an ALJ] will give that medical opinion.”). Contrary to the
Commissioner’s contentions, the ALJ did not “note[ ] that Dr. Simionescu’s opinion
failed to reflect treatment notes—including the psychiatrist's own records—showing
[claimant's] symptoms had significantly improved with ADHD medication.” Dkt. No. 17
at 12-13. In fact, the ALJ failed to address the supportability of Dr. Simionescu’s
opinion at all. Cf. Heaman v. Berryhill, 765 F. App’x 498, 501 (2d Cir. 2019) (summary
order) (“The ALJ here provided good reasons for giving the treating physicians’ opinions
weight, including that their opinions were merely checkbox forms that offer little or
nothing with regard to clinical findings and diagnostic results[.]’) (internal quotation
marks and citation omitted). This also constitutes error. See, e.g., Brown v. Colvin, No.
14-CV-2411 (KAM), 2015 WL 4878480, at *23 (E.D.N.Y. Aug. 14, 2015) (finding that the
ALJ erred by failing to specify what evidence supported the treating physician’s
opinion).

18

Third, the ALJ failed to adequately address the “consistency” of Dr. Simionescu’s
opinion. 20 C.F.R. § 416.927(c)(4) (“Generally, the more consistent a medical opinion
is with the record as a whole, the more weight [an ALJ] will give to that medical
opinion.”). The ALJ concluded that “[t]he treatment records addressing the claimant's
functioning significantly contradict the degree of restriction identified by [Dr.
° Simionescu], noting normal interaction and behavior with peers, teachers, and siblings,
and successful completion of academic tasks[,]” by citing to only three exhibits—14F,
16F, and 29F. T. at 1081 (citing T. at 524, 587-88, 1551-53). However, the ALJ did not
further elaborate and, thus, did not sufficiently explain the consistency of Dr.
Simionescu’s opinion with the record as a whole. See 20 C.F.R. §§ 404.1527(c)(4),
416.927(c)(4); see, e.g., Randall, 2018 WL 4204438, at *7 (“The ALJ’s failure to support
of [his] reasons [for rejecting the treating physician’s opinions] with further analysis
... prevents them from serving as ‘good reasons’ in support of his weight designation to
[the treating physician’s] opinions.”). Notably, although the ALJ cited to three treatment
records that allegedly contradicted Dr. Simionescu’s opinion, the ALJ failed to
acknowledge other treatment records that are consistent with Dr. Simionescu’s opinion.
See, e.g., Intonato v. Colvin, No. 13-CV-3426 (JLC), 2014 WL 3893288, at *14-15
m|(S.D.N.Y. Aug. 7, 2014) (“The only factor that the ALJ discussed explicitly when
explaining his decision to discount Dr. Strassberg’s opinion was its inconsistency with
the record. However, the ALJ gave short shrift to this analysis . . . [as] the ALJ provided
no analysis beyond the conclusory statement that the opinions were inconsistent.”).
Thus, the ALJ “appears not to have considered whether Dr. [Simionescu’s]
opinion was otherwise consistent with the record.” Intonato, 2014 WL 3893288, at *14-

19

15. “This bare and conclusory analysis constituted error.” Serrano v. Colvin, No. 12-
CV-7485 (PGG/JLC), 2014 WL 197677, at*17 (S.D.N.Y. Jan. 17, 2014); see Steficek v.
Barnhart, 462 F. Supp. 2d 415, 420 (W.D.N.Y. 2006) (concluding that the ALJ erred
where “the ALJ ignored . . . other evidence that was consistent with the opinions of” the
plaintiff's treating psychiatrist and psychologist); see also Duncan v. Astrue, No. 09-CV-
| 4462 (KAM), 2011 WL 1748549, at *24 (E.D.N.Y. May 6, 2011) (stating that the ALJ
“cannot simply selectively choose evidence in the record that supports his conclusions”)
(internal quotation marks and citations omitted).
Moreover, the ALJ failed to explain how the records cited are actually
inconsistent with the functional limitations opined by Dr. Simionescu. See T. and 1081
(citing T. at 524, 587-88, 1551-53). For example, exhibit 16F summarizes claimant's
progress in a therapy program, noting that claimant “demonstrated improved self
awareness’; has “not manifested aggressive behaviors for at least 10 weeks”; and
“successfully reported application of learned skills such as deep breathing and
mindfulness exercises to manage impulsivity.” Id. at 587-88. However, as plaintiff
points out, exhibit 16F also “documents that as of August 1, 2017, [c]laimant is noted as
only having achieved ‘sporadic completion’ of an objective to successfully complete
| academic tasks without distraction” and it is further noted that claimant “continues to
experience difficulty with concentration and consistency” even while taking medications.
Dkt. No. 16 at 12; T. at 587-88. Thus, it is unclear how claimant’s “sporadic completion”
of academic tasks without distraction is illustrative of his “successful completion of
academic tasks.” T. at 587-88, 1081. Given the ALJ’s limited explanation of exhibit 16F
in comparison to Dr. Simionescu’s opinion, “[t]he ALJ fails to explain how this record is

20

inconsistent with Dr. Simionescu’s [opinion, specifically his] finding of marked limitations
in acquiring and using information and marked to extreme limitations in attending and
completing tasks.” Dkt. No. 16 at 12 (citing T. at 520-21); see Brown, 2015 WL
4878480, at *23 (“The ALJ, however, failed to specify which objective findings and
evidence were inconsistent with or contradicted Dr. Chen’s opinion . . . Accordingly, the
| case is remanded with further instruction to the ALJ to review the totality of the evidence
in the record and if she declines to afford controlling weight to Dr. Chen's opinion, the
ALJ shall . . . specify[]. . . [what] medical evidence support[s] or contradict[s] Dr.
Chen’s opinion with respect to plaintiff's limitations[.]’).
Additionally, exhibit 29F includes a summary of a well-child medical visit that
occurred on March 14, 2022, noting that claimant reported “he is doing well and denies
m}any concerns regarding his body or his health.” T. at 1551. Exhibit 29F also notes that
claimant “eats meals with family, is able to make independent decisions and has family
member/adult to turn to for help[; h]e has normal performance, has normal behavior,
has normal attention and does homework regularly”; “[h]e has ways to cope with stress
[and] displays self-confidence.” Id. However, plaintiff argues that exhibit 29F
mischaracterizes claimant's performance at school and, therefore, serves as flawed
| reasoning for rejecting Dr. Simionescu’s opinion. See Dkt. No. 16 at 10-12; see also
Martinez o/b/o M.G. v. Commisioner of Soc. Sec., No. 16-CV-1153 (PKC/RLE), 2017
WL 9538863, at “6 (S.D.N.Y. Aug. 25, 2017) (“While the ALJ’s decision need not
mention every item of testimony presented or reconcile explicitly every conflicting shred
of medical testimony, the ALJ may not ignore or mischaracterize evidence of a person’s
alleged disability.”) (internal quotation marks and citations omitted), report and

21

recommendation adopted sub nom. Martinez on behalf of M.G. v. Comm’r of Soc. Sec.,
2017 WL 4232578 (S.D.N.Y. Sept. 22, 2017). Plaintiff contends that claimant’s school
records, in fact, support the limitations that Dr. Simionescu opined, asserting that
[iJn Exhibit 49E, [claimant’s] school reports reflect that he had
seven school suspensions in 2021 to 2022 as a result of
serious public space misconduct, confrontational and
aggressive arguing, and name calling or offensive language.
° Two out-of-school suspensions occurred in March 2022, only
a week after this well child visit. . . .
Further, [c]laimant’s [Individualized Education Plan (“IEP”)]
dated April 29, 2022 documents ongoing problems in
[c]laimant’s functioning. The IEP states that with his Writing
class, “He often needs someone to redirect him to the task at
hand and some support to keep doing.” The IEP also noted
that with his Math class, “He often tries to avoid attending
Math or tries to skip each day which is impacting his
progress.” Further, the IEP indicates that [c]laimant “often has
a difficult time understanding language in directions and in
math word problems when there is a lot of language presented
at once and also due to complex language that may be
included.”
Dkt. No. 16 at 10-11 (citations omitted). The ALJ failed to address this evidence in his
assessment of Dr. Simionescu’s opinion. See Hopkins v. Comm’r of Soc. Sec., No.
6:13-CV-1082 (GTS), 2015 WL 4508630, at *5 (N.D.N.Y. July 23, 2015) (“Although an
ALJ need not discuss every shred of evidence, failure to discuss evidence that conflicts
With an ALJ’s finding prevents meaningful review.”). As such, it appears the ALJ failed
to “build an accurate and logical bridge from the evidence to [his] conclusion to enable
a meaningful review.” Hamedallah ex rel. E.B. v. Astrue, 876 F. Supp. 2d 133, 142
(N.D.N.Y. 2012) (quoting Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)); see
Greek, 802 F.3d at 376 (“Because the ALJ rested his rejection of [the treating
physician’s] opinion on flawed reasoning . . . , the ALJ erred.”).

22

The ALJ also discounted Dr. Simionescu’s opinion due to other treatment records
demonstrating that “[mJedication has significantly improved the claimant’s attention and
behavior.” T. at 1081-82. However, the ALJ does not explain how this specifically
contradicts Dr. Simionescu’s assessment of claimant’s limitations. See Dkt. No. 17 at
15 (acknowledging “an ambiguity in the record” as to claimant’s improvement with
° medication); see also Mosley v. Comm'r of Soc. Sec., No. 20-CV-7940 (OTW), 2022
WL 16849101, at *5 (S.D.N.Y. Nov. 10, 2022) (remanding where “the ALJ failed] to
articulate how [certain records] were actually inconsistent with the treating physician
opinions”). Accordingly, the ALJ erred by failing to adequately address and explain
“how consistent [Dr. Simionescu’s] opinion is with the record as a whole.” Craven v.
Apfel, 58 F. Supp. 2d 172, 182-83 (S.D.N.Y. 1999); see Gallishaw v. Comm’r of Soc.
m}| 296 F. Supp. 3d 484, 496 (E.D.N.Y. 2017) (finding that the ALJ erred where “she
failed to explain how [a treating physician’s opinion] was unsupported by medically
acceptable evidence or inconsistent with other substantial evidence in the record”).
Fourth, as plaintiff notes, the ALJ’s rationale for rejecting Dr. Simionescu’s
opinion was questioned by the Appeal Council in its June 17, 2020, order.’ See Dkt.
No. 16 at 10. In remanding the case back to the ALJ on June 17, 2020, the Appeals
| Council wrote:
In evaluating the claimant's functioning, the [ALJ] concludes
the claimant has less than marked limitations in acquiring and
using information and health and physical well-being and no
limitations in attending and completing tasks, interacting and
relating with others, moving about and managing objects, and
caring for himself. However, the record contains later reports

11 The undersigned notes that the ALJ used the same language regarding his assessment of Dr.
Simionescu’s opinion in the November 6, 2018, decision, the April 7, 2021, decision, and the January 6,
2023, decision. See T. at 19, 605, 1081-82. The only difference is that, in the ALJ’s January 6, 2023,
decision, the ALJ provided one additional citation to “new” evidence. See id. at 1081.
23

from 2017 and 2018, which seemed to demonstrate a
worsening in the claimant's functioning.
In particular . . . in November 2017, Mihal Simionescu, M.D.,
concluded that the claimant had a marked loss in the ability to
become interested in new subjects and activities; apply
learning in daily activities at home and in the community; use
increasingly complex language to share information, ask
questions, express ideas, and respond to the opinions of
others; complete transition tasks without extra reminders or
° supervision; attach to adults other than his parents; share
ideas, tell stories, and speak in a manner readily
understandable by familiar and unfamiliar listeners; and
demonstrate consistent control over behavior and avoid
unsafe behaviors. The doctor also found that the claimant had
an extreme loss in focusing attention in order to follow
directions, complete school assignments, and remember and
organize school-related materials; concentrate on details and
avoid careless mistakes; change activities or routine without
distracting self or others; and sustain attention well enough to
participate in group sports, read alone, or complete chores. . .
Therefore, further evaluation is warranted.
T. at 665-66. Contrary to the Commissioner's assertions, the Appeals Council
appeared to take issue with the fact that the ALJ concluded that “claimant has less than
marked limitations in acquiring and using information” and “no limitations in attending
and completing tasks, interacting and relating with others, and caring for himself,” when
Dr. Simionescu opined otherwise. See id.; see also Dkt. No. 17 at 13. The Appeals
Council noted that “further evaluation is warranted”; yet, following this order, the ALJ did
not change his language used to assess Dr. Simionescu’s opinion. T. at 666; see id. at
19, 605, 1081-82. Instead, in his January 6, 2023, decision, ALJ Theurer cited to one
additional treatment record, exhibit 29F. See id. at 1081. However, this additional
citation does not satisfy the Appeals Council’s instruction for “further evaluation,” as the
ALJ still fails to adequately explain how he reached his conclusion in spite of Dr.

24

Simionescu’s opinion. See, e.g., Parks v. Colvin, No. 15-CV-6500 (FPG), 2017 WL
279558, at *3 (W.D.N.Y. Jan. 23, 2017) (“The ALJ’s failure to abide by the directives in
an Appeals Council remand order constitutes legal error requiring remand.”).
Accordingly, the undersigned recommends that the matter be remanded for the
ALJ’s failure to properly apply the treating physician rule in evaluating Dr. Simionescu’s
opinion. See, e.g., Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“Failure to provide
‘good reasons’ for not crediting the opinion of a claimant’s treating physician is a ground
for remand.”) (quoting Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)); Gavazzi v.
Berryhill, 687 F. App’x 98, 100 (2d Cir. 2017) (summary order) (remanding where the
ALJ failed to provide an “overwhelmingly compelling” justification for discounting the
opinions of the plaintiff's treating physician); McLean v. Astrue, No. 08-CV-4989 (NGG),
m| 2012 WL 1886774, at *7 (E.D.N.Y. May 23, 2012) (“In short, the ALJ provided nothing
close to good reasons for the lack of weight he gave to [the treating physician’s] opinion.
Unfortunately, because of the ALJ’s disturbingly empty analysis and disregard for the
treating physician rule, [the plaintiff] will have to continue to wait for a reasoned decision
on his application, as the court must now remand his case for a proper evaluation of
[the treating physician’s] opinion.”) (internal quotation marks and citation omitted).
C. Teacher Evaluations
On October 27, 2017, claimant’s fourth-grade teacher submitted a “teacher/
school questionnaire,” rating his abilities to perform basic mental activities within each of
the six domains of functioning. T. at 339-45. As relevant here, his fourth-grade teacher
noted that claimant would have “a very serious problem” completing activities within the

25

domain of “attending and completing tasks” and “a serious problem” completing
activities within the domain of “acquiring and using information.” Id. at 339-40.
On September 6, 2020, claimant’s sixth-grade teacher submitted another
“teacher/school questionnaire,” rating his abilities to perform basic mental activities
within each of the six domains of functioning. T. at 866-72. Similar to the findings made
o by claimant's fourth-grade teacher, his sixth-grade teacher noted that claimant would
have “a very serious problem” completing activities within the domains of “attending and
completing tasks” and “acquiring and using information.” Id. at 866-67. The sixth-grade
teacher also stated that claimant would have “a very serious problem” completing
activities within the domain of “interacting and relating with others.” Id. at 868.
On December 9, 2022, claimant’s ninth-grade teacher submitted another
| “teacher/school questionnaire,” rating his abilities to perform basic mental activities
within each of the six domains of functioning. T. at 1630-33. Claimant's ninth-grade
teacher noted that claimant has some problems within the domains of “acquiring and
using information,” “interacting and relating with others,” and “caring for himself or
herself.” Id. at 1630-31. As plaintiff notes, however, this “questionnaire appears to be
missing pages because there is no information on the domain of attending and
completing tasks.” Dkt. No. 16 at 14.
The ALJ found that “[sS]lome weight is given to the teacher questionnaires, which
range from minimal limitations to serious limitations.” T. at 1082 (citations omitted).
The ALJ noted that “[dJespite the variability in teacher assessments, the claimant’s
teachers had the opportunity to observe the claimant on a regular basis and to compare
his abilities and limitations to children of similar age in the same setting.” Id. The ALJ

26

concluded that “[o]verall, these assessments are consistent with the opinion of medical
expert, Aaron Williams, PsyD.” Id. Plaintiff argues, however, that “[t]his finding by the
ALJ is not supported by substantial evidence.” Dkt. No. 16 at 14. Specifically, plaintiff
notes that “Dr. Williams found a marked limitation in attending and completing tasks,
and a less than marked limitation in acquiring and using information,” but “[t]his differs
| from the marked limitations found by [claimant’s fourth and sixth-grade] teachers ... in
both of the domains of attending and completing tasks and acquiring and using
information.” Id. (citing T. at 339-40, 866-67).
As the Commissioner points out, claimant's teachers are non-medical sources
under the regulations and, thus, their opinions “do not demand the same deference as
those of a treating physician.” Merritt W. v. Comm'r of Soc. Sec., No. 23-CV-0133
m| (LUV), 2024 WL 989706, at *4 n.5 (W.D.N.Y. Mar. 7, 2024) (quoting Genier v. Astrue,
289 F. App’x 105, 108 (2d Cir. 2008) (summary order)). However, “the ALJ was [still]
required . . . to consider [the teachers’] opinion[s] and explain why (or why not) [he]
found [the opinions] to be unpersuasive.” Sandra C. R. o/b/o Y.E.O.C. v. Comm’ of
Soc. Sec., No. 5:20-CV-0923 (GTS/DEP), 2021 WL 7287617, at *5 (N.D.N.Y. Nov. 12,
2021) (citing 20 C.F.R. § 416.927(f)) (additional citations omitted), report and
recommendation adopted sub nom. Sandra C.R. on behalf of Y.E.O.C. v. Comm’ of
Soc. Sec., 2022 WL 675710 (N.D.N.Y. Mar. 7, 2022).
Here, the ALJ briefly explained why he found the teachers’ opinions to be entitled
to “some weight.” T. at 1082. However, the ALJ conclusorily states that the teacher
“assessments are consistent with the opinion of medical expert, Aaron Willliams, PsyD,”
without reconciling the differences between the limitations that the teachers opined and

27

the “less than marked limitation” that Dr. Williams opined. Id.; see Hickman ex rel.
M.A.H. v. Astrue, 728 F. Supp. 2d 168, 178 (N.D.N.Y. 2010) (finding error requiring
remand where the ALJ failed to provide a sufficient rationale for rejecting opinions from
the claimant’s teachers); cf. Crouch ex rel. K.C. v. Astrue, No. 5:11-CV-820 (LEK/ESH),
2012 WL 6948676, at *8 (N.D.N.Y. Dec. 31, 2012) (finding no error in the ALJ’s
o weighing of a teacher's opinion where it was clear the ALJ was aware of the correct
legal standard and explained the basis for his finding that the opinion was inconsistent
with other parts of the record), report and recommendation adopted, 2013 WL 316547
(N.D.N.Y. Jan. 28, 2013). Thus, the ALJ erred. See Webb o/b/o W.1.C.B. v. Berryhill,
No. 17-CV-6105L, 2018 WL 3454687, at *3 (W.D.N.Y. July 18, 2018) (“Because the ALJ

.. . failed to explain how [he] gave great weight [to the teachers’] opinion, yet failed to
{accept [their] conclusion that [the claimant] has serious or severe limitations in not one,
but three functional areas, the most prudent course of action is to permit the ALJ to
revisit this matter to reassess the claimant's limitations in those functional areas.”)
(internal quotation marks and citations omitted).
The ALJ also “note[d] that the assessment of the claimant’s 9th grade teacher
reflects significantly fewer problems and limitations than the claimant 6th grade teacher,
Suggesting improvement in the intervening 3 years.” T. at 1082. However, as plaintiff
argues, “the teacher's questionnaire appears to be missing pages because there is no
information on the domain of attending and completing tasks.” Dkt. No. 16 at 14. Thus,
to the extent the ALJ relied upon this assessment, this constitutes error. See Coppola
v. Berryhill, No. 18-CV-599 (HBP), 2019 WL 1292848, at *19 (S.D.N.Y. Mar. 21, 2019)
(“The ALJ is required ‘affirmatively to seek out additional evidence . .. where there are

28

“obvious gaps” in the administrative record.””) (quoting Eusepi v. Colvin, 595 F. App’x 7,
9 (2d Cir. 2014) (summary order), and Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir.
1999)); see also Encarnacion ex rel. George v. Barnhart, No. 00-CV-6597 (LTS/THk),
2003 WL 1344903, at *2 (S.D.N.Y. Mar. 19, 2003) (finding that the ALJ erred by failing
to obtain missing pages from an evaluation underlying the plaintiff's IEP).
° Further, this was not harmless error because, contrary to the ALJ's findings,
there appears to be evidence in the record demonstrating that plaintiff's behavior at
school has not improved. See, e.g., T. at 860 (noting that claimant had ten disciplinary
offenses, including three in-school suspensions, between December 2018 and May
2019); T. at 860-61 (noting that claimant had eight disciplinary offenses, including one
in-school suspension, between October 2019 and March 2020); T. at 899 (stating, in his
m|2017 IEP, that claimant “has a significant delay in attentional skills, which affect his
involvement and progress in the general education curriculum”); T. at 1424 (explaining,
in his 2018 IEP, that claimant “needs a lot of attention by the teachers due to behavior
and academics”); T. at 1343-44 (noting that claimant had eleven disciplinary offenses,
including five out-of-school suspensions, between October 2021 and May 2022). Thus,
it seems that the missing pages could have impacted the ALJ’s ultimate determination.
m| see Nivia D. o/b/o P.L.D. v. Comm’r of Soc. Sec., No. 5:18-CV-0634 (TWD), 2019 WL
4573262, at “6 (N.D.N.Y. Sept. 20, 2019) (“The ALJ’s treatment of the teacher
questionnaire was not harmless error because Ms. Ostrander’s opinion may have had
an effect on the outcome of the case.”); cf. Kayla D. 0.b.o K.D. v. Kijakazi, No. 4:20-CV-
00198 (HBB), 2022 WL 2070895, at *9 (W.D. Ky. June 8, 2022) (“While [the p]laintiff
asserts that this missing portion [of a teacher questionnaire] is extremely prejudicial,

29

[the p]laintiff has not argued how the missing pages impacted the ALJ’s ultimate
determination. As such, the error, if any error occurred, is harmless.”).
Accordingly, because the ALJ failed to sufficiently explain why he found the
fourth-grade and sixth-grade teachers’ opinions entitled to some weight, and because
the ALJ failed to address the missing pages from the ninth-grade teacher’s opinion,
remand is recommended. See Nivia D. o/b/o P.L.D., 2019 WL 4573262, at “7 (“[T]he
ALJ was responsible for reviewing all of the . . . evidence before him, resolving any
inconsistencies therein, and making a determination consistent with the evidence as a
whole. The Court’s task is not to fill any gaps in the ALJ’s analysis and reweigh that
evidence. . . . In light of the foregoing, this matter therefore is remanded for further
administrative proceedings[.]’).
D. Nature of Remand
Plaintiff argues that the ALJ’s decision should be remanded for a calculation of
benefits. See Dkt. No. 16 at 15. Specifically, plaintiff contends that
[p]laintiff originally filed an appeal of the cessation of
Claimant’s child benefits on February 27, 2017. Plaintiff's
case has been remanded from Northern District of New York
on two prior occasions. As such, [p]laintiff has waited for over
six years to resolve this matter. . . . [NJo useful purpose would
be served by remanding this case. The ALJ has continued in
each of the three decisions to provide the same rationale to
disregard Dr. Simionescu’s medical opinion. Because the
Commissioner has failed to provide a legally supported
decision, this case should be remanded for a finding of
disability and a calculation of benefits.
Id. (citations omitted).
“A remand for calculation of benefits is warranted ‘when the record provides
persuasive proof of disability and a remand for further evidentiary proceedings would

30

serve no purpose.” Mortise v. Astrue, 713 F. Supp. 2d 111, 128 (N.D.N.Y. 2010)
(quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)). Here, “because there is
conflicting evidence the [undersigned] cannot conclude that a remand for further
proceedings would inevitably lead to a determination of disability.” Ronald P. v. Comm'r
of Soc. Sec., No. 1:23-CV-08577 (JGK/GRJ), 2024 WL 3498503, at *5 (S.D.N.Y. July 2,
o 2024), report and recommendation adopted sub nom. Pinaud v. Kijakazi, 2024 WL
3498360 (S.D.N.Y. July 22, 2024). Notably, the “ALJ is not required to adopt” Dr.
Simionescu’s opinion, as the ALJ can decline to credit Dr. Simionescu’s opinion upon
providing “good reasons.” Lawrence v. Saul, No. 19-CV-6167L, 2020 WL 5500535, at
*4 (W.D.N.Y. Sept. 11, 2020); see Otts v. Comm'r of Soc. Sec., 249 F. App’x 887, 889
(2d Cir. 2007) (summary order) (noting that an ALJ may reject an opinion from a treating
m| physician “upon the identification of good reasons, such as substantial contradictory
evidence in the record”) (quoting Halloran, 362 F.3d at 32); see also Luciano-Norman v.
Comm’r of Soc. Sec., No. 5:16-CV-1455 (GTS/WBC), 2017 WL 4861491, at *9
(N.D.N.Y. Sept. 11, 2017) (declining to remand for calculation of benefits where “the
ALJ failed to properly evaluate the medical opinion provided by [the plaintiff's treating
provider],” and holding that remand for further proceedings is necessary “for a proper
assessment of [the treating provider's] statement”), report and recommendation
adopted, 2017 WL 4857580 (N.D.N.Y. Oct. 25, 2017).
Therefore, the undersigned recommends remanding for further proceedings.
See Cedeno v. Comm'r of Soc. Sec., 315 F. App’x 352, 353 (2d Cir. 2009) (summary
order) (“[R]Jemanding only for a calculation of benefits would not be appropriate because
the record does not present persuasive proof of [the claimant’s] disability’) (internal

31

quotation marks and citations omitted); see also Feliciano v. Acting Comm’r of Soc.
Sec., No. 20-CV-6183 (GRJ), 2022 WL 1597686, at *1-2 (S.D.N.Y. May 19, 2022)
(“While the record strongly supports remand . . . because further evaluation and fact
finding is required on remand{,] it [is] not appropriate to remand this case for calculation
of benefits rather than for further administrative proceedings . . . because the ALJ
| should be given the opportunity to weigh the opinion of Dr. Nwokeji, the treating
psychiatrist, in accordance with the treating physician rule and to make a finding about
the weight to be given to his opinion’).

V. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby:
ia RECOMMENDED, that the plaintiff's motion (Dkt. No. 16) be GRANTED; and it is
further
RECOMMENDED, that the Commissioner's decision be REVERSED and
REMANDED for further proceedings; and it is
ORDERED, that the Clerk serve a copy of this Report-Recommendation and
Order on all parties in accordance with Local Rules.
IT 1S SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have
fourteen days within which to file written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS
REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE
REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.

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Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.
§ 636(b)(1); FED. R. Civ. P. 6(a), 6(e), 72.
Date: August 19, 2024
Albany, New York

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

I

tn

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10765685. Public record. Not legal advice.