Anderson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------X

CARL R. ANDERSON,

Plaintiff,

MEMORANDUM

AND ORDER

-against- 22-cv-01509 (JMW)

COMMISSIONER OF THE SOCIAL SECURITY

ADMINISTRATION,

Defendant.

-------------------------------------------------------------X

A P P E A R A N C E S:

Daniel Adam Osborn

Osborn Law P.C.

43 West 43rd Street, Suite 131

New York, NY 10036

Attorney for Plaintiff

Geoffrey Michael Peters.

Special Assistant U.S. Attorney

Office of Program Litigation 2

6401 Security Boulevard

Baltimore, MD 21235

Attorney for Defendant

Nicol Fitzhugh

Social Security Administration

6401 Security Boulevard

Baltimore, MD 21235

Attorney for Defendant

WICKS, Magistrate Judge:

Plaintiff Carl R. Anderson (“Plaintiff” or “Anderson”) seeks judgment on the pleadings

(ECF No. 20), and vacatur of the final decision by the Commissioner of Social Security

(“Commissioner” or “Defendant”), reached after a hearing before an Administrative Law Judge

(“ALJ”), the result of which denied his application for disability insurance benefits (“DIB”) and

child’s disability insurance benefits (“CDB”)1. In response, Defendant cross-moves for judgment

on the pleadings, requesting that the Court grant its motion, deny Plaintiff’s motion, and affirm

the ALJ’s decision. (ECF No. 18.) For the reasons set forth below, Plaintiff’s motion (ECF No.

20) is DENIED, Defendant’s cross-motion (ECF No. 18) is GRANTED, and the ALJ’s decision

is hereby AFFIRMED.

BACKGROUND

I. Factual Background

a. Plaintiff’s Application for Disability Benefits

The following facts are taken directly from the parties’ stipulation of facts filed at ECF

No. 19.

Plaintiff was born in March of 1990 and alleged he became disabled beginning March 15,

1990 due to schizophrenia, psychotic disorder, general anxiety disorder, learning disorder, and

glycogen storage Disease (“GSD”), type 3B.2 (ECF No. 19 at ¶¶ 1-2). Plaintiff’s application for

DIB was filed on November 19, 2019 and his application for CDB was filed on December 17,

1 CDB, formally known as disabled adult child (DAC) benefits, is payable to the child of an insured

person who has died, retired, or become disabled; is or was dependent on the insured person; is

unmarried; and under a disability, as defined in the Act, before attaining the age of 22, and that the

disability has continued. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(5); see Hanlon v. Saul, No. 18-

CV-7090 (PKC), 2020 WL 999900, at *2 (E.D.N.Y. Mar. 2, 2020) (“The Social Security Act provides

disability insurance benefits for a disabled adult child . . . if the claimant is 18 years old or older and

has a disability that began before the claimant became 22 years old.”) (quotation marks and citation

omitted). The child disability claim is evaluated using the same standard used “in traditional, adult

disability cases.” Hanlon, 2020 WL 999900, at *2 (quotation marks and citation omitted).

2 “Glycogen storage disease type 3 (GSDIII) is an inherited disorder caused by the buildup of

glycogen in the body’s cells. This buildup impairs the function of certain organs and tissues, especially

the liver and muscles.” Glycogen storage disease type 3, National Institutes of Health (Nov. 8, 2021)

https://rarediseases.info.nih.gov/diseases/9442/glycogen-storage-disease- type-3 .

2019. (Id. at ¶ 1.) To be eligible for CDB, Plaintiff had to prove that he was disabled from

February 28, 2008, through March 14, 2012, the time period where he was aged 18 to 22.3 (Id. at

¶ 8.) For his DIB claim, Plaintiff had to prove he was disabled from April 1, 2010, through

September 30, 2011, the period that he was insured for benefits. (Id. at ¶ 9.) Both applications

were initially denied on March 6, 2020 and denied again upon reconsideration on August 18,

2020. (Id. at ¶ 3.)

Following a February 4, 2021, oral hearing, the ALJ issued two decisions on February 19,

2021, addressing Plaintiff’s DIB and CDB claims, respectively. (Id. at ¶ 4.) As to the DIB claim,

the ALJ found Plaintiff was not disabled at any time from April 1, 2010, through September 30,

2011, the period that Plaintiff was insured for DIB on his own earnings record. (Id. at ¶ 5.) As to

the CDB claim, the ALJ found Plaintiff was not disabled at any time from February 28, 2008,

through March 14, 2012, the period wherein Plaintiff was 18 to 22 years old and was insured on

his father’s earning record. (Id. at ¶ 6.)

b. Testimony at Administrative Hearing

At Plaintiff’s administrative hearing on February 4, 2021, Christine Spaulding, a

vocational expert, testified that, based on her education, training, and experience, an individual

of Plaintiff’s age and education with no past work experience, and one who hypothetically could

perform simple, routine, low-stress tasks, could work in the national economy, like a hand

3 The period from February 28, 2008 to March 14, 2012 was commonly referred to as “the Relevant

Period” in the parties joint stipulation of facts, namely because that period spans the applicable disability

period for the DIB and CDB claim. To be entitled to CDB, a claimant must be the child of a disabled

individual and establish that he or she was disabled before the age of 22. See Ackerman v. Colvin, No. 13-

CV-6675 (RLE), 2015 WL 1499459, at *7, *11 (S.D.N.Y. Mar. 31, 2015); see also C.F.R. §

404.350(a)(5) (noting a claimant is entitled to CDB if he is 18 years old or older and has a disability that

began before turning 22). Additionally, to be entitled to DIB, a claimant must establish a disability prior

to the expiration of insured status. Davis v. Colvin, No. 6:14-cv-06373 (MAT), 2016 WL 368009, at *2

(W.D.N.Y Feb. 1, 2016).

packer, cleaning, and price marker jobs. (Id. at ¶¶ 19-20.) When asked what would happen if that

same hypothetical employee was off-task 15% or more of the workday or would be absent from

work one or more days per month, the vocational expert testified that off-task behavior above

10% of the workday or having two or more absences from work per month would preclude all

employment. (Id. at ¶ 21.)

At this same hearing, Plaintiff testified that he had glycogen storage disorder, type 3,

necessitating a feeding tube as a child, which was surgically removed at age 13. (Id. at ¶ 14.)

While Plaintiff testified that he remains self-conscious about his disorder in general, he

maintained that his physical disorder was not functionally limiting. (Id.) He later developed

diabetes and testified that he did not use insulin to control his diabetes, but took metformin until

his prescription had run out, a prescription that his providers did not renew (Id.) Moreover, he

testified that he had mental health issues, feeling that people looked at him and read his thoughts.

(Id. at ¶ 15.) In school, he had special education and was in Board of Cooperative Educational

Services (“BOCES”) programs and a Skills Unlimited program (vocational training). (Id.) He

related having used marijuana, alcohol, and cocaine at times during his life, but as of the date of

the hearing, he had been sober for one month. (Id.) Plaintiff further testified that he attended

Alcoholics Anonymous meetings and had previously been hospitalized at Brentwood Hospital,

and Stoney Brook East Long Island Hospital. (Id. at ¶ 17.)

Moreover, as stated, Plaintiff’s mental health symptoms were worsening as of the

hearing, and that he had trouble sleeping and nightmares when not using drugs. (Id. at ¶ 16.) He

sleeps a lot, cannot sit for too long or stay in one place for too long, shops with someone from his

family, and often does not get dressed and will wear the same clothes for two or three days. (Id.)

In terms of care, Plaintiff testified that he had a history of working with therapists but, at the time

of the hearing, did not attend medical appointments due to the COVID-19 pandemic. (Id. at ¶

17.) Instead, Plaintiff reported that he worked with a team of individuals – including a social

worker and a nurse – who called and visited him to monitor his condition. (Id.) Plaintiff testified

that he received medical injections and took oral medications, relying on reminders from his

parents to take those medications. (Id.)

c. Medical Evidence and History

i. Medical Evidence and History Prior to the Relevant Period – from

1991 Through February 2008

In 1991, as an infant, Plaintiff received care for GSD, a condition which remained

relatively “unremarkable” up until Plaintiff turned 10 years old. (Id. at ¶¶ 24, 26.) In November

2000, at age 10, Plaintiff underwent an abdominal sonogram showing diffuse hepatic (liver)

disease with hepatosplenomegaly. (Id. at ¶ 27.) In April 2001, Plaintiff was admitted overnight to

North Shore University Hospital for metabolic monitoring. (Id. at ¶ 28.)

ii. Medical Evidence and History During the Relevant Period – February

28, 2008 Through March 14, 2012

In August 2008, at age 18, an ultrasound of Plaintiff’s abdomen showed

hepatosplenomegaly, “slightly larger” than a previous ultrasound had shown in November of

2000. (Id. at ¶ 32.) The following month, Plaintiff met with Alfred Slonim, M.D., for a review of

his GSD and Dr. Slonim noted that Plaintiff had “been feeling well” and was “reasonably

compliant” with a high protein diet. (Id. at ¶ 33.) Indeed, Plaintiff looked “well and was quite

comfortable with his glycogen storage disease status,” showed his liver was enlarged. (Id.) Dr.

Slonim strongly encouraged Plaintiff to follow a strict diet, discontinue cigarette and marijuana

use, and “undertake regular conditioning exercise.” (Id.)

On February 6, 2012, at age 21, Plaintiff’s parents brought him to counseling based on

their concerns about his health given his liver disease and involvement with drugs and alcohol,

and for concerns about marijuana and cocaine abuse, and that he was dealing drugs out of their

home. (Id. at ¶ 36.) Plaintiff reported trying alcohol for the first time at age 12, daily marijuana

use since age 15, and cocaine use beginning at age 17. (Id.) Plaintiff also reported symptoms of

depression and anxiety, which were not treated with medication. (Id.) Plaintiff refused any

treatment at that time. (Id.) Subsequently, on March 6, Plaintiff returned to counseling following

a near arrest for drug possession and reported a willingness to try sobriety. (Id. at ¶ 37.) On

March 13, Plaintiff reported ongoing cocaine use and a desire to stop using cocaine, but also

stated that he wished to avoid treatment. (Id.) Then, on March 30, Plaintiff’s case worker noted

that Plaintiff “ha[d] not complied with outpatient treatment.” (Id. at ¶ 38.)

iii. Medical Evidence and History After the Relevant Period – From April

2012 Through December 2020

In June 2012, Plaintiff was discharged from psychiatric care with Krista Valz, Psy.D.,

after completing a residential treatment program and her diagnoses of Plaintiff included a

psychotic disorder, polysubstance dependence, generalized anxiety disorder and learning disorder.

(Id. at ¶ 39.) An exam showed Plaintiff appeared distractible, cooperative, able to resist urges,

well-groomed, oriented, and alert with an unimpaired memory, no hallucinations, a constricted

affect, anxious mood, and tangential speech. (Id.) Dr. Valz noted that Plaintiff had made

“moderate” progress while in care and that Plaintiff’s global assessment of functioning (“GAF”)

scores within the past year had ranged from 45-60.4 (Id.)

4 A GAF score in the range of 41 to 50 signifies serious symptoms (e.g., suicidal ideation, severe

obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school

functioning (e.g., no friends, unable to keep a job).” Lawrie v. Astrue, No. 11-CV-3517, 2013 WL

867229, at *5 (E.D.N.Y. Mar. 7, 2013) (quotation marks omitted). “A GAF score in the range of 51 to 60

signifies moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or

Subsequently, from October 2012 through August 2013, Plaintiff began meeting with

Richard Pitch, M.D., regarding substance abuse issues. (Id. at ¶ 40.) During this period, Plaintiff

reported some marijuana use and reported a stabilized, improved, or “good” mood during some

visits. (Id. at ¶ 42.) Dr. Pitch initially diagnosed polysubstance dependence and encouraged

sobriety and, in December 2012, reported that Plaintiff was “much more dedicated to a program

of sobriety” and he was “not using marijuana at all.” (Id. at ¶¶ 40-41.) Anderson reported that he

wanted to resume treatment for management of depression, irritability and anxiety. (Id. at ¶ 41.)

In a January 2013 medical report regarding disabilities, Dr. Pitch noted Plaintiff had been sober

for nine months but still had sadness, apathy, struggles with initiative, some irritability and lack

of energy, yet opined that Plaintiff had no physical limitations resulting in disability. (Id. at ¶ 45.)

By August 2013, Plaintiff reported he was “doing well” and was “[n]ot depressed” yet,

according to his mother, Plaintiff appeared to “feel defiant of the law” and “immune to

consequences.” (Id. at ¶ 44.) In September 2013, Plaintiff sought treatment at the Pederson-Krag

Center after relapsing on alcohol because of self-discontinuing his medications. (Id. at ¶ 46.) For

treatment, restarting medications and therapy was recommended to help prevent relapse. (Id.) On

October 28, 2013, Plaintiff began court-mandated substance abuse treatment at St. Charles

Hospital. (Id. at ¶ 47.) Upon discharge on November 25, physician Mark Solomon, M.D. noted

that Plaintiff “appeared to benefit from his rehab stay” diagnosed Plaintiff with cocaine and

cannabis dependence, depression, and anxiety. (Id.) He additionally noted that, while continuing

treatment, Plaintiff may have emerging psychological symptoms and need to be re-assessed. (Id.)

On December 11, 2013, Plaintiff returned to Dr. Pitch. (Id. at ¶ 48.) Dr. Pitch noted that

Plaintiff appeared dedicated to sobriety, attended Narcotics Anonymous meetings, reported no

moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or

co-workers).” Id. (quotation marks omitted).

marijuana use, and asked to start medication management for anxiety and depression. (Id.) Upon

examination Plaintiff appeared cooperative, alert, and oriented with adequate grooming and

hygiene, and possessed a euthymic mood and intact memory, concentration and attention. (Id.)

Then, on December 26, 2013, Plaintiff began group therapy, and it was noted that Plaintiff had a

co-existing psychiatric disorder and prior treatment for mental illness. (Id. at ¶ 49.) Indeed,

though a discharge note from the Pederson-Krag Center noted Plaintiff had shown

“improvement” after one month of group therapy, Plaintiff’s attendance ultimately became

“sporadic” and eventually stopped attending treatment. (Id. at ¶ 50.)

In January 2014, Plaintiff met with Dr. Pitch and reported that he remained on some

medications, discontinued others due to side effects, but otherwise reported that his motivation

and energy had improved, and that he exercised each morning. (Id. at ¶ 51.) An exam showed

Plaintiff appeared cooperative, alert, and oriented with adequate grooming and hygiene; a

euthymic mood; and intact memory, concentration and attention, and insight and judgment. (Id.)

In February of 2014, Plaintiff met with Dr. Pitch and reported “steady, consistent sobriety.” (Id.

at ¶ 52.) Subsequently, in July 2016, Plaintiff sought services from Catholic Charities for issues

related to a drunk driving arrest and, while there, reported symptoms of depression such as

sadness, isolating, being unmotivated, and little interest and pleasure in doing things, “odd sleep

patterns,” mood swings daily, racing thoughts, obsessional thinking, and several delusions, such

as being a god and followed by the FBI, as well as reporting marijuana and alcohol use. (Id. at ¶¶

54-56.) Due to non-compliance with care, Catholic Charities discharged Plaintiff in 2017. (Id. at

¶ 57.) Then, on October 16, 2016, Plaintiff was referred for inpatient psychiatric admission due to

schizoaffective disorder after reporting to have been delusional, sitting at home doing nothing,

paranoid and not eating or sleeping. (Id. at ¶ 58.)

In February 2017, Plaintiff met with Laura Pisani, M.D., for review of his GSD. (Id. at ¶

59.) Plaintiff reported that, since 2008, his liver levels were “almost normal without being [] on a

diet,” and that an ultrasound of his liver performed in the past year “was normal.” (Id.) Upon

examination, Plaintiff appeared alert and cooperative with no abnormalities, thus metabolic

workup for monitoring of GSD was suggested at that time. (Id.) In May 2017, Plaintiff returned

to Dr. Pisani who reported that Plaintiff has GSD type IIIb. (Id. at ¶ 60.) There, Plaintiff

recounted his psychiatric, substance abuse, and legal issues, admitting to repeated use of powder

cocaine and daily marijuana use. (Id.) For treatment, Dr. Pisani recommended that Plaintiff meet

with her office’s social worker to assist in admitting him to a psychiatric facility due to suspected

schizoaffective disorder. (Id.)

In June 2017, Plaintiff was referred for psychiatric admission at The Haven at

Westchester (a division of NY-Presbyterian Hospital) by his mother. (Id. at ¶ 61.) Plaintiff’s

symptoms at the time included hallucinations and preoccupations, which occurred in the context

of him having been non-compliant with treatment and medications for a few years. (Id.) He

reported visual hallucinations of UFOs, reading words backwards, and looking for signs of great

events. (Id.) His parents reported a significant family history of mental illness including

schizophrenia and depression. (Id.) Plaintiff “did not want [to be admitted] at [that] time,” and

was not admitted into care. (Id.) In January 2019, Plaintiff appeared cooperative with a normal

appearance, euthymic mood, logical and normal thought process, normal cognition, and normal

insight, in addition to impaired judgment, a constricted affect, and delusions of persecution and

reference. (Id. at ¶ 63-64.)

In July 2020, Plaintiff was admitted to Stony Brook University Hospital for

decompensated behavior, which occurred in the context of not taking medications for six

months. (Id. at ¶ 68.) Schizoaffective disorder, bipolar type, was the principal diagnosis

following Plaintiff’s mother reporting that she and the family had been receiving bizarre text

messages from Plaintiff, including that he believes he is God and has powers that other people do

not have. (Id.) Secondary diagnoses included cocaine, alcohol, and cannabis dependence. (Id.)

After a 12-day stay, Stony Brook discharged Plaintiff to Brunswick hospital for additional

treatment. (Id.)

In November 2020, Plaintiff returned to Brunswick Hospital for treatment of his

schizoaffective disorder where he denied drug use, but reported drinking one liter of “hard liquor

per day” and reported non-compliance with medications. (Id. at ¶ 69.) He also displayed

paranoid ideation with belief that he was living in hell and someone wants to kill him, appeared

tense, irritable, anxious, internally preoccupied, displayed paranoid ideation, angry, and

depressed. (Id.) During inpatient care, Plaintiff’s medications were restarted, and he began detox

for alcohol use, which resulted in “excellent improvement” in symptoms, and was eventually

discharged on December 4 “in excellent control.” (Id.)

In a December 2020 report from the Family Service League, Plaintiff’s provider of 2.5

years opined that Plaintiff had no limitation in understanding, remembering, or carrying out

simple instructions or making judgments on simple work-related decisions. (Id. at ¶ 70.) The

provider opined that Plaintiff had mild limitation in understanding and remembering complex

instructions, and mild/moderate limitation in carrying out complex instructions, but did not

indicate any social limitations. (Id.) However, the provider further stated that he or she was

unable to evaluate and assess Plaintiff in a work environment. (Id.)

d. Non-Medical Evidence

In a January 2020 written function report, Plaintiff reported that he was disheveled and

bathed infrequently. (Id. at ¶ 12.) Though he cared for his pet cat, Plaintiff needed reminders to

take care of his personal needs, for grooming, and to take his medications. (Id.) Plaintiff prepared

frozen foods and cold cuts for meals on a daily basis, he used the dishwasher and went outside

every day, he could walk and ride in a car, he shopped for food and cigarettes and occasionally

for clothing. (Id.) Further, he had difficulty getting along with others, and did not handle stress or

change in schedule well because of anxiety and depression. (Id.). Social functions and most

activities gave him anxiety, and he self-medicated with marijuana to calm himself. (Id.) Indeed,

these results were largely the same conclusions drawn in a December 2019 third-party function

report completed by Plaintiff’s father, Robert Anderson. (Id. at ¶ 13.)

e. Plaintiff’s Education and Work Experience

Plaintiff possesses a high school education and his high school records demonstrate a

history of special education. (Id. at ¶¶ 11, 29.) Indeed, intelligence testing from 2003 showed an

average full-scale IQ of 93, whereas in 2007 Plaintiff’s intelligence showed a low-average full-

scale IQ of 86. (Id. at ¶ 30.) In January 2009, Plaintiff’s high school completed an individualized

education plan (“IEP”) which noted Plaintiff was functioning below grade level in writing, did

not exercise appropriate social judgment, displayed low self-esteem, was frustrated by school

related responsibilities, could be inflexible and difficult with transitions, and engaged in attention

seeking behavior. (Id. at ¶ 34.) Plaintiff attended one year of college in 2010. (Id. at ¶ 35.)

Vocationally, Plaintiff completed heating, ventilation, and air-conditioning (“HVAC”)

training in 2009, worked as a maintenance worker in both 2013 and from October 2018 to April

2019, and by August 2013, Plaintiff was working 6 days per week doing maintenance deliveries

at a high-end private community on Fire Island. (Id. at ¶¶ 11, 35, 44.) On December 26, 2013,

Plaintiff, during group therapy, recounted his work history, reporting he had left a maintenance

job for “[p]ersonal reasons” after 3 months, left Subway after he “stole money from them and []

left” after 4 months, and was fired from a job painting boats. (Id. at ¶ 49.)

II. Procedural History

On March 12, 2021, the Appeals Council denied Plaintiff’s request for review, making

the ALJ’s decisions the final decisions of the Commissioner subject to judicial review under 42

U.S.C. § 405(g). (Id. at ¶ 7.) Subsequently, on March 18, 2022, Plaintiff commenced this action

in the Eastern District of New York pursuant to 42 U.S.C. § 405(g) of the Social Security Act for

review of the ALJ’s Decision. (See ECF No. 1.) Originally assigned to the Hon. Diane Gujarati,

the parties later consented to the undersigned for all purposes. (See ECF No. 16.) The

undersigned directed that Plaintiff’s Motion, Defendant’s Opposition, and Plaintiff’s Reply be

bundle filed on ECF on or before September 18, 2023. (Electronic Order dated July 20, 2023).

The parties timely filed their motions. (See ECF Nos. 18, 20, 21.)

III. The Parties’ Contentions

a. Plaintiff’s Motion for Judgment on the Pleadings

In support of his Motion for Judgment on the Pleadings, Plaintiff argues: (i) the ALJ’s

finding that Plaintiff did not meet or equal listing 12.03 is not supported by substantial evidence,

and (ii) the ALJ failed to develop the record by failing to obtain a single medical opinion from an

examining or treating medical source. (See generally, ECF No. 20-1.)

First, Plaintiff avers that the ALJ “did not provide any meaningful discussion regarding

his finding” that Plaintiff did not meet the criteria in listing 12.03. (Id. at p. 12.) Plaintiff

contends that Anderson’s schizophrenia satisfies the requirements of subsections A and B of §

12.03 considering:

(1) there is substantial evidence in the record of medically documented persistence of

delusions, hallucinations, and emotional withdrawal/isolation; (2) Mr. Anderson's

difficulties in maintaining social functioning are marked; and (3) Mr. Anderson has

marked difficulty with concentration, persistence, and pace

Id. at pp. 12-13.

Plaintiff maintains that medical records indicate Anderson suffers from visual

hallucinations, reads words backwards, and is “religiously preoccupied.” (Id. at p. 13.) Indeed, he

has been hospitalized in 2020 for schizophrenia and, based upon Plaintiff’s father’s report,

Plaintiff cannot function in society given his “extreme paranoia.” (Id.) As for marked difficulties

in maintaining social functioning, Plaintiff contends his high school records exhibit “oppositional

behavior,” he maintains a strained familial relationship, has a history of aggressive behavior, and

has minimal work history due in part to his difficulty interacting with others. (Id.) Plaintiff

further avers that there is no evidence that HVAC training and completing one year of college

involve interactions with others. (Id.)

Furthermore, regarding alleged marked difficulties with concentration, persistence, and

pace, Plaintiff argues his June 2012 discharge summary report demonstrates difficulty with

attention and concentration. (Id.) Plaintiff’s father, in addition, reported his son struggled in

school with a low attention span. (Id.) Plaintiff alleges that although the ALJ found Plaintiff to

have a moderate limitation in this area largely because he had a driver’s license in 2009 and

worked part time in 2008, 2010, and 2011, during these years Plaintiff had limited earnings, he

worked part-time, was unable to hold a job for long periods of time, and the record fails to

demonstrate that Plaintiff could maintain full-time work. (Id.)

Second, Plaintiff argues the ALJ failed to develop the record despite the ALJ’s duty to do

so where, like here, Plaintiff asserts a long history of mental illnesses (e.g., depression, anxiety,

bipolar disorder, and schizophrenia). (Id. at p. 15) Notably, Plaintiff contends that “despite over

twelve hundred pages of records, there is not a single medical opinion from an examining or

treating medical source.” (Id.) (emphasis in original). Specifically, without such medical

opinions, Plaintiff maintains that the ALJ’s decision on Plaintiff’s RFC—that Anderson is

capable of work at all exertional levels with limitations—was not supported by substantial

evidence. (Id.) As such, Plaintiff insists that “upon remand,” the ALJ obtain an RFC assessment

from one or more of Anderson’s examining or treating physicians. (Id.)

Accordingly, Plaintiff submits that the ALJ erred in his decision and requests that the

case be remanded. (Id. at p. 17.)

b. Defendant’s Cross-Motion for Judgment on the Pleadings

In support of its Cross Motion for Judgment on the Pleadings, Defendant argues: (i)

substantial evidence supports the ALJ’s conclusion that Plaintiff’s schizoaffective disorder did

not meet the requirements of listing 12.03, and (ii) the record was fully developed. (See

generally, ECF No. 18-1.) As such, Defendant requests that the Court reject Plaintiff’s claims,

reject his “invitation to reweigh the evidence,” and affirm the ALJ’s decision. (Id. at p. 6.)

First, Defendant argues the Court should affirm the ALJ’s decision because he

“supportably concluded that Plaintiff did not meet listing 12.03 because Plaintiff had only

moderate or mild limitation in the functional domains of interacting with others and

concentrating, persisting, or maintaining pace.” (Id. at p. 8.) In the context of substance abuse, as

Defendant maintains, the ALJ properly determined Plaintiff was moderately limited in

interacting with others because he was cooperative during exams, completed HVAC training,

and attended one year of college. (Id. at pp. 7, 9.) Additionally, Defendant avers the ALJ’s

determination that Plaintiff had a mild limitation in interacting with others, in the context of

sobriety, was adequately supported through evidence of Plaintiff’s treatment records. (Id. at p. 8.)

Similarly, Defendant maintains the ALJ adequately supported its moderate limitation

conclusion regarding Plaintiff’s ability to concentrate, persist, or maintain pace during periods of

substance abuse, especially in light of Plaintiff’s possession of a driver’s license and part time

work in 2008, 2010, and 2011. (Id.) In the context of sobriety, Defendant contends the ALJ’s

finding of only a “mild limitation” in concentration, persistence, and maintain pace was proper,

specifically noting the ALJ found “no evidence [that Plaintiff] remained impaired in this area

when sober.” (Id.) (citing ECF No. 8 at p. 23 (ALJ Hr’g Tr. at p. 12)).

Additionally, Defendant alleges that Plaintiff fails to explain how the evidence he relied

upon shows he met part A and B, and most of the evidence Plaintiff cites to falls outside of the

Relevant Period, including all evidence in support of part A. (Id. at p. 10) Indeed, Defendant

notes that Plaintiff failed to explain how the evidence from outside this period relates back to the

Relevant Period. (Id. at p. 11.) As for the evidence that falls within the Relevant Period,

Defendant alleges the evidence does not support Plaintiff’s claims of marked limitation. (Id.) As

such, Defendant avers that Plaintiff’s selected findings made in an attempt to prove he met parts

A and B “is nothing more than an invitation for the Court to reweigh the evidence, which is not

the Court’s role.” (Id. at p. 10.)

Second, Defendant argues the administrative record is fully developed as it contains

multiple medical opinions from Plaintiff’s examining medical providers and there are no

“obvious gaps” in the record. (Id. at p. 11; ECF No. 18-2 at p. 2.) Specifically, in the context of

substance abuse, Defendant asserts that the ALJ assessed reports developed by state agency

medical and psychological consultants containing opinions on Plaintiff’s conditions and found

some opinions to be persuasive and others unpersuasive. (Id. at p. 13.) Additionally, in the

context of sobriety, Defendant contends the ALJ looked to several opinions from Plaintiff’s

medical providers who provided findings consistent with low average cognitive abilities. (Id.)

Indeed, contrary to Plaintiff’s suggestion, Defendant posits that the ALJ relied on medical

opinions in making its RFC determination and, as such, substantial evidence supports this

determination (Id. at p. 15.) Accordingly, Defendant submits that this Court should affirm the

ALJ’s decision.

c. Plaintiff’s Reply in Support of its Motion for Judgment on the Pleadings

and in Opposition to Defendant’s Cross-Motion for Judgment on the

Pleadings

In his Reply in Opposition to Defendant’s Cross-Motion for Judgment on the Pleadings,

Plaintiff solely argues that the ALJ’s finding that Plaintiff did not meet or equal listing 12.03 is

not supported by substantial evidence and the ALJ “arbitrarily substitute[d] his own judgment for

a competent medical opinion.” (ECF No. 21 at p. 2.) (citation omitted). To support this assertion,

Plaintiff cites the same evidence and reiterates the identical arguments made in his Motion for

Judgment on the Pleadings. (See id. at pp. 2-4.)

DISCUSSION

I. Legal Framework

When determining if the Social Security Administration’s denial of disability benefits

was warranted, the court will review de novo “whether the correct legal principles were applied

and whether substantial evidence supports the decision.” Balotti v. Comm’r of Soc. Sec., 605 F.

Supp. 3d 610, 613 (3d Cir. 2022) (quoting Butts v. Barnhard, 388 F.3d 377, 384 (2d Cir. 2004)).

Here, the correct legal principles are the five-step inquiry described as the “Social Security

Disability Standard” outlined below. “If the reviewing court is satisfied that the ALJ applied the

correct legal standards, then the 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.’” Balotti, 605 F. Supp. 3d at 613 (quoting Brault v. Soc. Sec.

Admin’n Comm’r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam)).

Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Perez v. Chater, 77 F.3d 41,

46 (2d Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Cardin v.

Comm’r of Soc. Sec., No. 23-755, 2024 WL 2180216, at *1 (2d Cir. May 15, 2024) (citing Brault

v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012)) (“The substantial evidence

standard requires that we accept the agency’s factual findings unless a reasonable factfinder

would be compelled to conclude otherwise.”). “To determine whether the findings are supported

by substantial evidence, the reviewing court is required to examine the entire record, including

contradictory evidence and evidence from which conflicting inferences can be drawn.” Snell v.

Apfel, 177 F.3d 128, 132 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d

Cir. 1984) (per curiam)).

As such, the Court will not look at the record in “isolation but rather will view it in light

of other evidence that detracts from it.” State of New York ex rel. Bodnar v. Sec. of Health and

Human Servs., 903 F.2d 122, 126 (2d Cir. 1990). An ALJ’s decision must be supported by

“adequate findings . . . having rational probative force.” Veino v. Barnhart, 312 F.3d 578, 586

(2d Cir. 2002); see also Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012)

(under the substantial evidence standard of review, the plaintiff must show that no reasonable

factfinder could have reached the ALJ’s conclusions based on the evidence in the record, rather

than merely disagree with the ALJ’s weighing of the evidence or argue that evidence in the

record could support his or her position).

“Disability” is defined as the “inability to engage in any substantial gainful activity by

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

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

than 12 months.” 42 U.S.C. § 423(d)(1)(A). Thus, an individual must be found disabled when his

or her “physical or mental impairment or impairments are of such severity that he is not only

unable to do his previous work but cannot, considering his age, education, and work experience,

engage in any other kind of substantial gainful work which exists in the national economy[.]” Id.

§ 423(d)(2)(A). The correct legal principle that ALJs must undertake to ascertain a claimant’s

status is the sequential five-step inquiry of the Social Security Disability Standard outlined by the

Commissioner’s regulations. See 20 C.F.R. §§ 404.1520, 416.920. According to this framework,

a claimant will be found disabled if the Commissioner determines:

(1) that the claimant is not working, (2) that he has a “severe impairment,” (3) that the

impairment is not one [listed in Appendix 1 of the regulations] that conclusively

requires a determination of disability, and (4) that the claimant is not capable of

continuing in his prior type of work, the Commissioner must find his disabled if (5)

there is not another type of work the claimant can do.

Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (quoting Green-Younger v. Barnhart, 335

F.3d 99, 106 (2d Cir. 2003)).

At step one, the Plaintiff must prove s/he is not employed in “substantial gainful activity”

(“SGA”). “[SGA] is work activity that is both substantial and gainful.” 20 C.F.R. § 404.1572.

“‘Substantial work activity’ is work activity that involves doing significant physical or mental

activities.” (Id. § 404.1572(a)). “Gainful work activity” is work that is usually done for pay or

profit, “whether or not a profit is realized.” (Id. § 404.1572(b)).

At step two, the Plaintiff must prove s/he is significantly limited in his/her physical or

mental abilities to perform basic work activities. "Basic work activities" are "activities and

aptitudes necessary to do most jobs." Sharmara A. v. Comm'r of Soc. Sec., No. 23-CV-6171

(LJV), 2023 U.S. Dist. LEXIS 230336, at *5 (W.D.N.Y. Dec. 28, 2023) (quoting 20 C.F.R. §

404.1522(b)).

At step three, Plaintiff must prove that the impairments meet or are equivalent to one of

the impairments listed in 20 C.F.R. 404 to render him as “disabled.” “If the severe impairments

do not meet or equal a listed impairment, an administrative law judge assesses the social security

claimant's residual function capacity based on all the relevant medical and other evidence in the

case record.” McAllister v. Colvin, 205 F. Supp. 3d 314, 327 (E.D.N.Y. 2016) (quoting 20 C.F.R.

§ 404.1520(e)).

At step four, the plaintiff must prove that he is incapable of meeting the physical and

mental demands of work; and whether the ALJ failed to develop the record. At step five, the

Commissioner bears the burden to demonstrate that “there is work in the national economy that

the claimant can do” upon consideration of the plaintiff's RFC, age, education, and prior work

experience, are there any other jobs Plaintiff could perform. Poupore v. Astrue, 566 F.3d 303,

306 (2d Cir. 2009) (per curiam).

“Remand for further development of the evidence is appropriate where there are gaps in

the administrative record or the ALJ has applied an improper legal standard.” Kirkland v. Astrue,

No. 06 CV 4861(ARR), 2008 WL 267429, at *8 (E.D.N.Y. Jan. 29, 2008); see also Butts, 388

F.3d at 386 (internal citations omitted) (“Remand for additional proceedings is particularly

appropriate where, due to inconsistencies in the medical evidence and/or significant gaps in the

record, further findings would ... plainly help to assure the proper disposition of a claim.”). “On

the other hand, when there is persuasive proof of disability in the record and no apparent basis to

conclude that a more complete record might support the Commissioner’s decision, further

evidentiary development would not serve any purpose. In that case, the court should reverse the

Commissioner's decision and remand solely for the calculation of benefits.” Kirkland, 2008 WL

267429, at *8 (internal citations omitted) (cleaned up).

II. Analysis

Plaintiff asserts that the ALJ decision should be reversed because: (i) the ALJ’s finding

that Anderson did not meet or equal listing 12.03 (relating to schizophrenia) is not supported by

substantial evidence5; and (ii) the ALJ failed to develop the record by failing to obtain a single

medical opinion from an examining or treating medical source. (ECF NO. 20-2 at p. 1.) In

response, Defendant counters that: (i) the ALJ’s conclusion that Plaintiff’s schizoaffective

disorder did not meet the requirements of listing 12.03 is supported by substantial evidence as

Plaintiff had no more than moderate limitation in interacting with others, and in concentrating,

persisting, or maintaining pace; and (ii) the record was fully developed and contains multiple

medical opinions from Plaintiff’s examining medical providers. (ECF No. 18-2 at pp. 1-2.) The

Court considers each of the parties’ arguments on these points in turn.

a. Legal Framework for Listing 12.03

At step three of the ALJ’s five-step process, the ALJ must determine whether the

claimant’s impairments meet or equal any listing. See 20 C.F.R. § 404.1520(a)(4)(iii), (d). A

“Listing of Impairments” describes the physical or mental impairments considered severe

enough to prevent a plaintiff from doing any gainful activity, regardless of age, education, or

5 Plaintiff specifically objects that he has marked, and not moderate, difficulties in two areas: maintaining

social functioning (interacting with others), and in concertation, persistence, and pace. (ECF No. 20-1 at

pp. 13-14.)

work experience. Bechard v. Colvin, 2024 WL 5274654, at *2 (2d Cir. Jan. 3, 2025) (citing 20

C.F.R. § 404.1525(a)).

If the claimant meets or equals one of the listings, the evaluation process is concluded,

and the individual is considered disabled. See 20 C.F.R. § 404.1520(a)(4)(iii); see also Pratt v.

Astrue, No. 7:06-CV-0551 (LEK/DRH), 2008 WL 2594430, at *6 (N.D.N.Y. June 27, 2008). To

meet a listing, a plaintiff must show that his or her medically determinable impairment satisfies

all of the specified criteria in a listing. Rockwood v. Astrue, 614 F. Supp. 2d 252, 272 (N.D.N.Y.

2009) (citing 20 C.F.R. § 404.1525(d)). Where a claimant’s impairment manifests only some of

those criteria, such impairment does not qualify regardless of its severity. Sullivan v. Zebley, 493

U.S. 521, 520 (1990). The claimant bears the burden of proof at this step of the “sequential

inquiry”. Schillo v. Kijakazi, 31 F.4th 64, 70 (2d Cir. 2022); see also Vella v. Astrue, 634 F.

Supp. 2d 410, 418 (S.D.N.Y. 2009) (plaintiff bears the burden of establishing the existence of a

disability). Indeed, an ALJ “should set forth a sufficient rationale in support of his decision to

find or not to find a listed impairment.” Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982).

“To meet the requirements of listing 12.03, the listing for schizophrenia spectrum and

other psychotic disorders, the claimant must meet the requirements of 12.03(A) and either

12.03(B) or 12.03(C).”6 Nieves v. Colvin, No. 1:16-cv-00286 (FB), 2017 WL 5159765, at *2

(E.D.N.Y. Nov. 7, 2017); see also Ashley A.M. v. Commissioner of Social Security, No. 6:23-cv-

0738 (BKS/TWD), 2024 WL 4442703, at *4 (N.D.N.Y. July 2, 2024) (recognizing that to satisfy

6 Here, the ALJ focused its analysis on whether Plaintiff met Paragraphs B and Part C. Not considering

Paragraph A, however, is not futile because claimant must satisfy either B or C to meet the requirements

of a listing 12.03. See Velez v. Astrue, No. 1:11-CV-1487 (MAD), 2013 WL 474281, at *6 (N.D.N.Y.

Feb. 7, 2013).

a listing standard for impairments under 12.03, a claimant’s “‘mental disorder must satisfy the

requirements of both paragraphs A and B, or the requirements of both paragraphs A and C.’”).

“Section 12.03A requires medical documentation of one or more of the following:

delusions or hallucinations, disorganized thinking (speech), or grossly disorganized behavior or

catatonia.” Id. Section 12.03B requires “at least two of the following limitations of mental

functioning related to the impairment: (1) marked restriction of activities of daily living; (2)

marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining

concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of

extended duration.” Id. These functional areas are marked on a five-point scale: “None, mild,

moderate, marked, and extreme.” 20 C.F.R. § 404.1520a(c)(4). In determining whether a

claimant has marked limitations of mental functioning, the ALJ must consider all the relevant

medical and non-medical evidence in the record. See Tucker v. Massanari, No. 99 Civ. 12037

(AJP), 2001 WL 868031, at *7 (S.D.N.Y. Aug. 1, 2001). Relevant factors include how clinicians

diagnose the claimant's level of disorder, the claimant's mental functioning in daily activities and

work settings, the overall effect of limitations, and the effects of support, supervision, and

structure on claimant's functioning. Nieves, 2017 WL 5159765, at *2. Lastly, to satisfy Section

12.03C, a claimant’s mental disorder must be “serious and persistent” with a medically

documented history of the existence of the disorder over a period of at least two years. Langston

v. Commissioner of Social Security, No. 21-CV-00723 (KAM), 2024 WL 127850, at *5

(E.D.N.Y. Jan. 11, 2024) (citing C.F.R. § Pt. 404, Subpt. P, App. 1); see also Johnson v. Astrue,

493 F. Supp. 2d 652, 656-57 (W.D.N.Y. 2007).

b. The ALJ Correctly Determined Plaintiff’s Schizoaffective Disorder did not

Meet the Requirements of Listing 12.03

Here, the ALJ’s decision that Plaintiff did not meet or equal listing 12.03 relating to

schizophrenia was supported by substantial evidence. At the outset, the Court agrees with the

ALJ that “[t]he record contains limited evidence pertaining to the period at issue in this claim.”

(ECF No. 8 at pp. 18, 40.) In fact, most, if not all, of the arguments presented by Plaintiff in

support of remand involved reports and findings falling outside of the Relevant Period.7 For

example, Plaintiff’s argument that he has “marked difficulties” in maintaining social functioning

and difficulty with concentration, persistence, and pace were supposedly demonstrated through

school records from 2007, June 2012 discharge reports, medical reports from December of 2013,

medical evaluations from 2017, Plaintiff’s father’s written report from 20208, and mentions of

hospitalization in 2020 due to aggressive behavior. (See ECF No. 20-1 at pp. 13-14.)

Consideration of evidence outside the relevant periods of disability, including after the

date of last insured, is not afforded significant or convincing weight when reviewing whether an

ALJ’s conclusions were supported by substantial evidence. See Mauro v. Berryhill, 270 F. Supp.

3d 754, 762 (S.D.N.Y. 2017) (collecting cases demanding that a claimant show that a currently

existing condition rendered him disabled prior to the date of last insured, not after the relevant

period expires); see also Lau v. Commissioner of Social Security, 339 F. Supp. 3d 421, 425

(S.D.N.Y. 2018) (“Because the record contained “insufficient evidence prior to [claimant’s] date

7 Plaintiff’s arguments that Plaintiff suffers from delusions, hallucinations, and emotional withdrawal are

supported by a June 2017 psychiatry report, a psychiatric evaluation from 2019, a 2020 report from

Plaintiff’s father, and hospitalization records from 2020. (See ECF No. 20-1 at p. 13 (citing Tr. pp. 753,

1070, 377, 1096)).

8 In Plaintiff’s Reply, he contends that although this report falls outside of the Relevant Period, Plaintiff’s

father discuss Plaintiff’s impairments during the disability period. (ECF No. 21 at p. 3, n.1 (citing Tr. p.

377.))

last insured documenting significant functional limitations arising from his mental impairments,

the ALJ concluded that Lau did not suffer from a severe mental impairment during the Relevant

Period.”) (internal quotations omitted).

Importantly, here, the ALJ considered evidence during the Relevant Period in

determining whether Plaintiff meet or equal listing 12.03 in both the DIB and CDB claims.9 For

understanding, remembering, or applying information, the ALJ determined that Plaintiff had a

moderate limitation, namely because Plaintiff’s January 2009 school record indicates that his

full-scale IQ was “within average.” (See ECF No. 8 at pp. 16, 37.) Moreover, the ALJ considered

that Plaintiff maintained part-time work during for several years during the Relevant Period after

reviewing Plaintiff’s earnings records. (Id.) As such, the ALJ determined that despite a history of

learning disability, “the evidence does not demonstrate markedly impaired cognitive function.”

(Id. at pp. 19, 40.) Furthermore, if substance abuse was stopped, the ALJ determined Plaintiff

would have a mild limitation, a conclusion drawn from reviewing Dr. Pitch’s records which

highlight “unimpaired memory and concentration” and “intact thought process” during sobriety.

(Id. at pp. 23, 44.)

Though Plaintiff does not specifically object to the ALJ’s finding in this category, in light

of the limited evidence available during the Relevant Period, the ALJ sufficiently considered the

aforementioned records concerning Plaintiff’s cognitive function in reaching its determination

for understanding, remembering, or applying information. See Pena v. O’Malley, No. 23 Civ.

6720 (NSR) (JCM), 2024 WL 3813829, at *14 (S.D.N.Y. July 3, 2024) (determining the ALJ’s

“step three findings were supported by substantial evidence” after he considered plaintiff’s full-

9 The ALJ addressed all four limitation categories in the DIB and CDB decisions each and considered

whether these limitations existed during both periods of substance use and periods of sobriety.

scale IQ), report and recommendation adopted, 2024 WL 4345733 (S.D.N.Y. Sept. 30, 2024);

Difiglia v. Commissioner of the SSA, No. 22-CV-06825, 2024 WL 1332502, at *11 (E.D.N.Y.

Mar. 28, 2024) (finding an ALJ’s conclusion of a moderate limitation in understanding,

remembering, or applying information was supported by substantial evidence through

consideration of medical opinions and high school performance).

Furthermore, in both CDB and DIB decisions, with respect to interacting with others, the

ALJ found Plaintiff to have a moderate limitation, because, although school records in 2009

show he exhibited “low self-esteem, impaired social judgment, was easily frustrated, and

demonstrated attention-seeking behaviors,” Plaintiff completed HVAC training in 2009 and one

year of college shortly thereafter. (Id. at pp. 16, 37.) The ALJ further noted, in the DIB decision

specifically, that no other evidence existed through the date last insured to support more than a

moderate limitation. (Id. at 16.) Ordinarily, an ALJ’s conclusion that plaintiff has a moderate

limitation in interacting with others after consideration plaintiff’s attendance at college and

participation in vocational training programs will be considered adequately supported. See

Langston, 2024 WL 127850, at *5 (finding no more than moderate limitations where plaintiff

attended college and participated in vocational training programs). Furthermore, though Plaintiff

argues there is no evidence that completing a training and attending college involved interacting

with others, “[a] moderate limitation in interaction can be reasonably interpreted as an ability to

occasionally interact.” Cynthia A.E. v. Commissioner of Social Security, No. 5:22-CV-0974,

2023 WL 9116628, at *8 (N.D.N.Y. Oct. 17, 2023), report and recommendation adopted, 2023

WL 8432332 (N.D.N.Y. Dec. 5, 2023).

In addition, the ALJ adequately supported its conclusion that if substance abuse was

stopped, Plaintiff’s limitation would be mild, especially after analyzing progress notes taken by

Dr. Pitch and conclusions arrived at by the Pederson-Krag Center which both memorialize that

during periods of sobriety, Plaintiff exhibited good hygiene and cooperative behavior. (Id. at pp.

23, 44.); see Kristy M. v. Kijakazi, No. 22-CV-1004DGL, 2023 WL 7124524, at *2 (W.D.N.Y.

Oct. 30, 2023) (granting defendant’s cross motion for judgment on the pleadings where, inter

alia, the ALJ found “if plaintiff stopped abusing controlled substances, plaintiff would have only

mild limitations . . . in interacting with others” after reviewing medical records of the extent of

mental health symptoms versus substance abuse).

With regard to concentrating, persisting, or maintaining pace, even when including

substance use, the ALJ noted Plaintiff had a moderate limitation. (ECF No. 8 at pp. 16, 37.)

Specifically, though his academic records from 2009 reflect difficulty completing tasks, Plaintiff

had a driver’s license in 2009 and worked part time during 2008, 2010, and 2011. (Id.) Notably,

these sets of facts are those appropriately considered by an ALJ in order to support a finding of a

moderate limitation in this context. See Nicolas D. v. Commissioner of Social Security, No. 1:23-

CV-00052, 2024 WL 655599, at *5 (W.D.N.Y. Feb. 16, 2024) (collecting cases where an ALJ

properly considers a claimant’s ability to attend college and engage in part-time work throughout

the relevant time period to determine the severity of a disability); see also Ernest v.

Commissioner of Social Security, No. 1:22-CV-00509, 2023 WL 5738449, at *4-5 (W.D.N.Y.

Sept. 6, 2023) (holding that the ALJ’s reliance on plaintiff’s possession of a driver’s license was

proper to conclude a moderate limitation in concentrating, persisting or maintaining pace

existed); see also Riddick v. Saul, No. 20-CV-05396 (AMD), 2022 WL 784722, at *4 (E.D.N.Y.

Mar. 15, 2022) (noting that driving a car required concentration and persistence, thus supporting

a finding of a moderate limitation).

Furthermore, the ALJ determined “[t]here is no evidence the claimant remained impaired

in this area when sober” after reviewing psychological testing results in February and March of

2012, in addition to analyzing records formed by Dr. Pitch memorializing that Plaintiff

maintained an organized and concise thought process, intact attention, and articulate behavior

after being sober for nine months. (Id. at pp. 23, 45.) Here, the ALJ properly relied upon these

medical and psychological findings to evaluate the effect of sobriety on a claimant’s purported

disability. See David C. v. Commissioner of Social Security, No. 1:22-CV-00965, 2024 WL

376598, at *5 (W.D.N.Y. Feb. 1, 2024) (granting defendant’s motion for judgment on the

pleadings after noting the ALJ’s recognition and reliance on prior treatment records indicating

that since plaintiff attained sobriety he exhibited “few mental status abnormalities with no

evidence of psychological deficits . . . .”).

Lastly, for adapting or managing oneself, the ALJ stated Plaintiff had a moderate

limitation considering his substance use, “actively abusing marijuana in 2007 and 2008” and

cocaine in 2011 and early 2012, and ceasing mental health treatment. (Id. at pp. 16-17, 38); see

Tina v. Commissioner of Social Security, No. 1:21-CV-219 (JLS), 2023 WL 4286039, at *4

(W.D.N.Y. June 29, 2023) (finding the ALJ’s conclusion supported by substantial evidence after

considering plaintiff “ceased all mental health treatment,” no longer took medications to manage

her symptoms, and was discharged from mental health programs). Moreover, the ALJ weighed

the fact that Plaintiff’s school records demonstrated difficulty achieving progress during these

years and that he was treated at the Office of Addiction Services and Supports (“OASAS”) at the

end of the Relevant Period for marijuana and cocaine use. (Id. at pp. 16, 38.) Though Plaintiff

does not explicitly object to the ALJ’s conclusion on this limitation, the Court nonetheless finds

that the ALJ’s conclusion was supported by substantial evidence, though limited in the Relevant

Period.

Furthermore, the ALJ concluded Plaintiff experienced moderate limitations for adapting

or managing oneself if substance abuse was stopped because although Dr. Pitch found the

claimant demonstrated good hygiene and stable moods with increasing sobriety, evidence like

Dr. Valz’s June 2012 discharge report noting “it [was] truly questionable as to whether [Plaintiff]

truly accepted” that using drugs triggers and exacerbates psychotic symptoms, suggests that

maintaining sobriety and complying with medical treatment may be an ongoing issue. (Id. at pp.

24, 45); see Victoria v. Commissioner of Social Security, No. 19-CV-6810, 2020 WL 7258119, at

*7 (W.D.N.Y. Dec. 9, 2010) (highlighting an ALJ’s decision that if plaintiff stopped substance

abuse, her limitations would be moderate for adapting or managing oneself in light of specific

examples cited in the record relating to her mental and psychological disorders).

Additionally, the ALJ considered whether Paragraph C of 12.03 was satisfied in both

instances. The ALJ noted that the record was silent as to whether Plaintiff had only “marginal

adjustment, that is, a minimal capacity to adapt to changes in the claimant’s environment or to

demands that are not already part of the claimant’s daily life.” (ECF No. 8 at pp. 17, 38.)

Particularly, the ALJ formed this conclusion after considering that Plaintiff was able to work

part-time in 2008, 2010, and 2011, attend and complete HVAC training in 2009, and attend one

year of college in 2009-2010. (Id.) Considering the scope of the Relevant Period, and limited

evidence therein, the ALJ’s determination as to Paragraph C was supported by substantial

evidence and supports the ALJ’s decision that Plaintiff failed to meet or equal listing under

12.03. See Hussain v. Commissioner of Social Security, No. 22-CV-03880 (HG), 2023 WL

8189750, at *4, *9 (E.D.N.Y. Nov. 26, 2023) (concluding it was clear the ALJ’s opinion, which

included a determination that Paragraph C was not satisfied where “the record [did] not show

that [plaintiff] has a minimal capacity to adapt to changes in her environment, or to demands that

are not already part of her daily life,” was “amply supported by substantial evidence”).

Accordingly, the Court finds that substantial evidence supports the ALJ’s conclusion that

Plaintiff’s schizoaffective disorder did not meet the requirements of Listing 12.03.

III. The ALJ Adequately Performed His Affirmative Duty to Develop the

Administrative Record

Prior to determining if the Commissioner’s final decision is backed by substantial

evidence under 42 U.S.C. § 405(g), the Court must first ensure that the ALJ granted the plaintiff

a full hearing under the Secretary’s regulations and thoroughly developed the administrative

record. See Scott v. Astrue, 2010 U.S. Dist. LEXIS 68913, at *12 (E.D.N.Y. July 9, 2010)

(quoting Echevarria v. Sec’y of Health & Hum. Servs., 685 F.2d 751, 755 (2d Cir. 1982)). As

such, in Social Security proceedings, the ALJ must affirmatively develop the record on behalf of

all claimants. See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). As part of this duty, the

ALJ must investigate the facts and develop the arguments both for and against granting benefits.

Id. Specifically, under the applicable regulations, the ALJ is required to develop a claimant's

complete medical history. Sainsbury v. Commissioner of Social Security, No. 18-CV-0513-JWF,

2019 WL 4643607, at *2 (W.D.N.Y. Sept. 24, 2019).

Moreover, the ALJ must develop the record even where the claimant has legal counsel.

See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). The Appeals Council then evaluates the

entire record, including any new and material evidence submitted if it is chronologically

relevant, to determine if the ALJ's action, findings, or conclusion is contrary to the weight of the

evidence currently on record. See 20 C.F.R. § 404.970(b); Bushey v. Colvin, 552 F. App'x 97, 98

(2d Cir. 2014).

Here, the Court finds the ALJ did perform and satisfy his affirmative duty to develop the

administrative record. Indeed, the ALJ developed the record by considering Plaintiff’s

limitations both in the context of substance abuse and in the context of sobriety. In forming its

opinions in these circumstances, the ALJ considered not only the medical and psychological

evidence presented to him, but also analyzed this evidence against Plaintiff’s statements made

during the administrative hearing, thereby supporting a finding that the record was sufficiently

developed. See John W. v. Saul, No. 20-CV-376 (JLS), 2022 WL 3142083, at *4 (W.D.N.Y.

Aug. 5, 2022) (determining that the ALJ properly developed the record where the ALJ

considered and weighed the mental health opinions in the record with the subjective evidence

from plaintiff).

In contrast to Plaintiff’s argument that there exists “not a single medical opinion from an

examining or treating medical source” in this extensive record (ECF No. 20-1 at p. 15), the Court

notes that the duty to develop the record does not extend to speculative or vague claims of

missing evidence or require the ALJ to obtain the alleged missing evidence on behalf of the

claimant. See Perez, 77 F.3d at 48 (rejecting Plaintiff’s contention that the ALJ failed to develop

the record by not obtaining information from the physicians who had ordered the CT of her brain

and the MRIs of her spine, where the “ALJ stated that he considered the reports of the results of

the CT and MRI tests, and that he found that they did not provide evidence demonstrating that

[Plaintiff] was disabled” and where “there [was] nothing to indicate that the reports were

inconclusive[,]” and further noting that “the ALJ was not obligated to request further information

from the doctors who had ordered the CT and MRIs.”)

For example, in Eric K. S. v. Commissioner of Social Security, the court determined the

ALJ sufficiently developed the record after affording different degrees of weight to the opinions

and medical evidence relating to plaintiff’s mental limitations. 2021 WL 826717, at *6

(W.D.N.Y. Mar. 4, 2021). There, the ALJ reviewed the conclusions from state agency

psychological consultants, treatment records of a mental health specialist, and findings from

plaintiff’s treating psychiatrist, all of whom opined at to plaintiff’s mental functioning and

impairment in light of substance abuse. Id. at *4-5. Additionally, because “the record contained

opinion evidence, significant treatment records, and plaintiff’s testimony,” the court noted the

ALJ was not required to further develop an already enhanced record. Id. at *4. As such, the court

rejected plaintiff’s assertion that the ALJ did not develop the record by neglecting to include

“opinion evidence from an examining or treating source.” Id.

Similarly, here, the ALJ considered the various opinions and reports formed by those

treating Plaintiff, including his endocrinologist (ECF No. 8 at pp. 19, 40), Dr. Valz’s discharge

report (ECF No. 8 at pp. 20, 41), and state agency medical and psychological consultants (ECF

No. 8 at pp. 21, 42). As such, Plaintiff’s claim that there is no “opinion evidence from an

examining or treating medical source” fails to account for the ALJ’s consideration of these

different forms of medical and psychological evidence.

Additionally, the ALJ considered both the supportability and consistency of these

opinions. Pursuant to amended regulations, claims filed after March 27, 201710 will not apply a

“presumption of controlling weight” subject to a treating doctor’s opinion. Balotti, 605 F. Supp.

3d at 616. Instead, the revised regulations for evaluating a doctor’s opinion evidence place

substantial emphasis on two factors: supportability and consistency. Id., see 20 C.F.R. §

404.1520 (a). To avoid legal error, “[a]n ALJ must not only apply supportability and consistency

10 Until March 27, 2017, regulations required application of the so-called “treating physician rule” pursuant

to which the opinion of a claimant’s treating physician presumptively was entitled to “controlling weight.”

20 C.F.R. § 404.1520 (c)(2); see also Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).

in evaluating medical source opinions but also must explain the analysis of these factors in the

decision.” Balotti, 605 F. Supp. 3d at 617; 20 C.F.R. § 404.1520 (c)(b)(2). The first factor of

supportability “refers to the extent to which a medical source's opinion is supported by objective

medical evidence and the medical source’s explanations.” Balotti, 605 F. Supp. 3d at 616; 20

C.F.R. § 404.1520 (c)(1).

A medical opinion is considered persuasive when it is more relevant to the objective

medical evidence and the medical source’s explanations. See id. The second element of

consistency “refers to the extent to which a medical source’s opinion is consistent with other

medical or non-medical sources.” Id. “[I]f two or more medical opinions or prior administrative

medical findings are both equally well supported and consistent,” the ALJ must consider other

factors listed in 20 CFR 404.1520. See 20 C.F.R. § 404.1520. These factors are “Relationship

with the claimant,” “Extent of the treatment relationship,” and “Examining relationship.” See id.

§ 404.1520 (c)-(e).

Here, the ALJ applied these principles and explained how these factors influenced his

decisions. For instance, the ALJ examined prior opinions of State agency medical consultant Dr.

Sharif-Najafi—opinions which were later confirmed by another medical consultant, Dr.

Sonthineni—that Plaintiff had no physical limitation during “the relevant adjudicative period.”

(Id. at pp. 21. 42.) In forming this conclusion, the ALJ balanced these opinions against the

medical evidence presented at the hearing level, yet nonetheless found these doctors’ medical

opinions persuasive considering Plaintiff’s own denial of any significant difficulties from an

impairment during a 2008 exam. (Id.) Similarly, the ALJ found the reports from state agency

psychological consultants not persuasive as they were “not consistent with additional evidence

received at the hearing level . . . .”. (Id.)

Furthermore, in the context of sobriety, the ALJ evaluated the opinions of the Family

Services League (“FSL”), Dr. Pitch, and Dr. Valz on Plaintiff’s mental functioning. The ALJ,

specifically, found Dr. Pitch’s opinion that Plaintiff was not restricted at work unpersuasive as it

was “not consistent with the claimant’s subjective mood . . . or the evidence . . . noted by Dr.

Valz.” (id. at pp. 26, 47), deemed Dr. Valz’s reports “not overly persuasive” in light of the

duration of care and GAF opinions, but found the FSL’s limitation opinion persuasive as it was

consistent with prior exams taken of Plaintiff during periods of sobriety. (Id. at pp. 25-26, 47).

Indeed, after considering each of these conclusions in equal light, the ALJ determined Plaintiff’s

own statements regarding his symptoms to be inconsistent with the medical and psychological

evidence in the record. (Id.); see Artinian v. Berryhill, No. 16 Civ. 4404 (ADS), 2018 WL

401186, at *8 (E.D.N.Y. Jan. 12, 2018) (“It is entirely proper for the ALJ to only credit portions

of medical source opinions, or weigh different parts of the same opinion differently.”)

Under these circumstances, where an ALJ makes clear which statements or opinions he

finds persuasive or unpersuasive based on whether they are consistent with reports and

testimony, an ALJ will be deemed to have sufficiently addressed both supportability and

consistency factors. See Garcia v. Acting Commissioner of Social Security, No. 22-CV-4602

(JLC), 2023 WL 4174181, at *11-12 (S.D.N.Y. June 23, 2023); see also Artinian, 2018 WL

401186, at *8 (“[W]hen the ALJ uses a portion of a given opinion to support a finding, while

rejecting another portion of that opinion, the ALJ must have a sound reason for the

discrepancy.”)

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 20)

is DENIED and Defendant’s Cross-Motion for Judgment on the Pleadings (ECF No. 18) is

GRANTED. The ALJ’s Decision is therefore AFFIRMED. The Clerk of the Court is directed

to enter judgment accordingly and to close the case.

Dated: Central Islip, New York

February 28, 2025

S O O R D E R E D:

James M. Wicks

/S/

JAMES M. WICKS

United States Magistrate Judge