Watson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

SHANNON ELIZABETH W.,

Plaintiff,

V.

No. 5:24-CV-944

COMMISSIONER OF SOCIAL SECURITY, (MAD/PJE)

Defendant.

APPEARANCES: OF COUNSEL:

Olinsky Law Group HOWARD D. OLINSKY, ESQ.

250 South Clinton Street, Suite 210

Syracuse, New York 13202

Attorneys for plaintiff

Social Security Administration JASON P. PECK, ESQ.

“| Office of the General Counsel

6401 Security Boulevard

Baltimore, Maryland 21235

Attorneys for defendant

PAUL J. EVANGELISTA

U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION AND ORDER’

Shannon Elizabeth W.? (“plaintiff”) brings this action pursuant to 42 U.S.C.

§ 405(g) seeking review of a decision by the Commissioner of the Social Security

Administration (“the Commissioner’) denying her application for disability insurance

This matter was referred to the undersigned for Report-Recommendation and in accordance with General

Order 18 and N.D.N.Y. L.R. 72.3(e).

? 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.

benefits (“DIB”) and supplemental security income (“SSI”). See Dkt. No. 1. Plaintiff

moves for the Commissioner's decision to be vacated and remanded for further

proceedings. See Dkt. No. 9. The Commissioner moves to affirm. See Dkt. No. 12.°

Plaintiff filed a reply. See Dkt. No. 13. For the following reasons, it is recommended

that plaintiff's cross-motion be granted, the Commissioner’s cross-motion be denied,

“| and the Commissioner's decision be reversed and remanded for further proceedings.

|. Background

On December 14, 2021, plaintiff filed Title || and Title XVI applications for DIB

and SSI benefits, alleging a disability onset date of September 18, 2021. See T. at 63,

242-50.4 On January 27, 2022, the Social Security Administration (“SSA”) denied

plaintiff's claims. See id. at 127-31. On February 3, 2022, plaintiff sought

reconsideration, which the SSA denied on March 24, 2022. See id. at 132-41. Plaintiff

appealed and requested a hearing. See id. at 148-49. On September 8, 2023,

Administrative Law Judge (“ALJ”) Mary Jane Pelton held a hearing. See id. at 34-62.

On October 19, 2023, the ALJ issued an unfavorable decision. See id. at 15-33. On

June 24, 2024, the Appeals Council denied plaintiff's request for review, and the

decision became final. See id. at 1-6. Plaintiff timely commenced this action on July

m| 1, 2024. See Dkt. No. 1.

ll. Legal Standards

This matter has been treated in accordance with General Order 18. Under that General Order, once issue

has been joined, an action such as this is considered procedurally as if cross-motions for judgement on the

pleadings have been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

““T.” followed by a number refers to the pages of the administrative transcript. See Dkt. No. 8. Citations

to the administrative transcript refer to the pagination in the bottom, right-hand corner of the page. Citations

to the parties’ briefs refers to the pagination generated by the Court’s electronic filing and case management

program, located at the header of each page.

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.” Joseph J. B. v. Comm’r of Soc.

Sec., No. 1:23-CV-652 (BKS/CFH), 2024 WL 4217371, at *1 (N.D.N.Y. Aug. 29, 2024),

report and recommendation adopted, No. 1:23-CV-652 (BKS/CFH), 2024 WL 4216048

(N.D.N.Y. Sept. 17, 2024) (citing 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.” /d. (citing 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

in the record one can find ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” /d. (quoting Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (per curiam) (citing Richardson v. Perales, 402 U.S. 389, 401

(1971))). “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.” /d. (quoting Brault v. Soc. Sec. Admin.,

m| Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam)) (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.” /d. (citing 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].”” /d. (quoting Rosado v. Sullivan,

805 F. Supp. 147, 153 (S.D.N.Y. 1992)).

B. Determination of Disability

“Every individual who is under a disability shall be entitled to a disability . . .

benefit... .” 42 U.S.C. § 423(a)(1)(E). Disability is defined as the “inability to engage

in any substantial gainful activity by reason of any medically determinable physical or

mental impairment... which has lasted or can be expected to last for a continuous

period of not less than 12 months[.]” /d. § 423(d)(1)(A). “A medically-determinable

impairment is an affliction that is so severe that it renders an individual unable to

_,| continue with his or her previous work or any other employment that may be available to

him or her based upon age, education, and work experience.” Joseph J. B., 2024 WL

4217371, at *2 (citing 42 U.S.C. § 423(d)(2)(A)). “Such an impairment must be

supported by ‘medically acceptable clinical and laboratory diagnostic techniques.” /d.

(citing 42 U.S.C. § 423(d)(3)). “Additionally, the severity of the impairment is ‘based on

objective medical facts, diagnoses[,] or medical opinions inferable from [the] facts,

SUbjective complaints of pain or disability, and educational background, age, and work

experience.” /d. (quoting Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL

399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037

(2d Cir. 1983))).

The Second Circuit employs a five-step analysis, based on 20 C.F.R. § 404.1520,

to determine whether an individual is entitled to disability benefits:

First, the [Commissioner] considers whether the claimant is currently

engaged in substantial gainful activity.

If he [or she] is not, the [Commissioner] next considers whether the claimant

has a “severe impairment” which significantly limits his [or her] physical or

mental ability to do basic work activities.

If the claimant suffers such an impairment, the third inquiry is whether,

based solely on medical evidence, the claimant has an impairment which is

listed in Appendix 1 of the regulations. If the claimant has such an

impairment, the [Commissioner] will consider him [or her] disabled without

considering vocational factors such as age, education, and work

experience; the [Commissioner] presumes that a claimant who is afflicted

with a “listed” impairment is unable to perform substantial gainful activity.

Assuming the claimant does not have a listed impairment, the fourth inquiry

is whether, despite the claimant’s severe impairment, he [or she] has the

residual functional capacity to perform his [or her] past work.

Finally, if the claimant is unable to perform his [or her] past work, the

[Commissioner] then determines whether there is other work which the

claimant could perform...

Berry, 675 F.2d at 467 (spacing added). “lf at any step a finding of disability or non-

disability can be made, the SSA will not review the claim further.” Joseph J. B., 2024 WL

4217371, at *2 (quoting Barnhart v. Thomas, 540 U.S. 20, 24 (2003)). “The plaintiff bears

the initial burden of proof to establish each of the first four steps.” /d. (citing DeChirico v.

Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998) (citing Berry, 675 F.2d at 467)). “If the

inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that

tt

the plaintiff is still able to engage in gainful employment somewhere.” /d. (citing

DeChirico, 134 F.3d at 1180 (citing Berry, 675 F.2d at 467)).

Ill. The ALJ’s Decision

Applying the five-step disability sequential evaluation, the ALJ first determined

that plaintiff had “not engaged in substantial gainful activity since September 18, 2021,

the alleged onset date.” T. at 18. At step two, the ALJ determined that plaintiff “ha[d]

the following severe impairments: depressive disorder, anxiety disorder, post-traumatic

stress disorder, degenerative joint disease of the right knee, and obesity.” /d. At step

three, the ALJ determined that plaintiff “does not have an impairment or combination of

impairments that meets or medically equals the severity of one of the listed impairments

in 20 CFR Part 404, Subpart P, Appendix 1.” /d.

Before reaching step four, the ALJ concluded that plaintiff retained the residual

functional capacity (“RFC”) to

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b),

except she should not climb ladders, ropes, or scaffolds; she should not

kneel or crawl; she should have no exposure to hazards such as

unprotected heights and dangerous moving machinery; she can

understand, remember, and carry out simple instructions; she can use

judgment to make simple work-related decisions; she should work in a job

with occasional changes in the routine work setting; she cannot perform

work requiring a specific production rate or perform work that requires

hourly quotas; and she could have occasional interaction with co-workers,

supervisors, and the public.

T. at 22.5 At step four, the ALJ determined that plaintiff “is unable to perform any past

relevant work.” /d. at 26. At step five, the ALJ concluded that, “[c]onsidering [plaintiff's]

age, education, work experience, and residual functional capacity, there are jobs that

5 Light work is defined as

lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing

up to 10 pounds. Even though the weight lifted may be very little, a job is in this category

when it requires a good deal of walking or standing, or when it involves sitting most of the

time with some pushing and pulling of arm or leg controls. To be considered capable of

performing a full or wide range of light work, you must have the ability to do substantially

all of these activities. If someone can do light work, we determine that he or she can also

do sedentary work, unless there are additional limiting factors such as loss of fine dexterity

or inability to sit for long periods of time.

20 C.F.R. §§ 404.1567(b); 416.967(b).

exist in significant numbers in the national economy that the claimant can perform.” /d.

The ALJ concluded that plaintiff “has not been under a disability . . . from September 18,

2021[,]” the alleged onset date, to the date of her decision. See id. at 27.

IV. Discussion

A. The Parties’ Arguments

Plaintiff argues that the ALJ’s decision is not supported by substantial evidence

because the ALJ failed to fully develop the record. See Dkt. No. 9 at 5, 8. Specifically,

plaintiff argues that (1) the record lacks a medical source opinion addressing her

physical limitations; and (2) in addressing her mental limitations, the ALJ “relied on the

stale and unsupported opinion of the state agency medical consultant[s] rather than fully

developing the record with a reliable expert medical opinion about Plaintiff's remaining

_,| work-related abilities.” /d. at 5. Plaintiff claims that Dr. Leiber-Diaz and Dr. Jurgia’s

Opinions are stale because they “predated the ALJ’s decision by over eighteen months,

during which time [she] continued to experience symptoms and receive treatment.” /d.

at 6. Plaintiff asserts that Drs. Leiber-Diaz and Jurgia did not review Exhibits (“Ex.”) 6F,

7F, 8F, and 9F, and these exhibits demonstrate that she experienced “ongoing and

increasing severity of [her] mental health condition.” /d. Plaintiff states that the “medical

mi| evidence contained in Exhibit 6F materially affects evaluation of the medical opinions as

the records contain observations of [her] full mental health status; the records clearly do

not document someone with only ‘normal’ examinations as claimed by the ALJ[,]” and

these records were not available to the state consulting examiners. /d. at 8 (citing T. at

24).

The Commissioner argues that the ALJ’s determination is supported by

substantial evidence. See generally Dkt. No. 12. The Commissioner states that ALJ

correctly concluded that Dr. Leiber-Diaz and Dr. Jurgia’s opinions as to plaintiff's mental

work-related limitations were “consistent with the evidence of record that was available

to them, as well as with course of the claimant’s treatment for her psychiatric condition

“| since the alleged disability onset date.” /d. at 7 (quoting T. at 25-26). They further

assert that plaintiff failed to meet her burden of demonstrating that Drs. Lieber-Diaz and

Jurgia’s opinions are stale. See id. at 9-13.

B. Duty to Develop the Record

1. Legal Standard

“Whether the ALJ has met his duty to develop the record is a threshold question’

_,| that the Court must determine ‘[bJefore reviewing whether the Commissioner’s final

decision is supported by substantial evidence[.]’”” Joseph J. B., 2024 WL 4217371, at *4

(quoting Craig v. Comm’r of Soc. Sec., 218 F. Supp. 3d 249, 261 (S.D.N.Y. 2016)).

“While the ALJ has an affirmative obligation to develop the administrative record, her

duty to do so is not without limit.” Gillard v. Colvin, 5:11-CV-1173 (GLS), 2013 WL

954909, at *2 (N.D.N.Y. Mar. 12, 2013) (citation omitted). “Indeed, if all of the evidence

| received is consistent and sufficient to determine whether a claimant is disabled, further

development of the record is unnecessary, and the ALJ may make her determination

based upon that evidence.” /d. (citing 20 C.F.R. § 404.1520b(a)). “Consistent with that

notion, where there are no ‘obvious gaps’ in the record, the ALJ is not required to seek

additional information.” /d. (quoting Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir.

1999)); see also Evans v. Comm’r of Soc. Sec., 110 F. Supp. 3d 518, 537-38 (S.D.NLY.

2015) (first citing Rosa, 168 F.3d at 79 n.5 (2d Cir. 1999), then citing Perez v. Chater, 77

F.3d 41, 48 (2d Cir. 1996)). “The ultimate question is whether the administrative record

is ‘robust enough to enable a meaningful assessment of the particular conditions on

which the [plaintiff] claims disability.” Joseph J. B., 2024 WL 4217371, at *4 (quoting

Sanchez v. Colvin, No. 13-CV-6303 (PAE), 2015 WL 736102, at “7 (S.D.N.Y. Feb. 20,

2015) (additional citations omitted)). “The ALJ’s duty to develop the record is enhanced

when the disability in question is a psychiatric impairment.” Michael D. v. Comm’r of

Soc. Sec., No. 3:22-CV-104 (CFH), 2023 WL 3601718, at *3 (N.D.N.Y. May 23, 2023)

(quoting Corporan v. Comm’r of Soc. Sec., No. 12-CV-6704 (JPO), 2015 WL 321832, at

*22 (S.D.N.Y. Jan. 23, 2015) (additional citations omitted)).

2. Analysis

a. Development of Record

In determining plaintiff's physical RFC, the ALJ found “the treating records of the

primary care and orthopedic providers of the claimant to be persuasive.” T. at 25 (citing

Ex. 2F (T. at 450-570); 3F (T. at 571-674); 6F (T. at 710-952). The ALJ explained that

the

[p]hysical exams of the claimant by her primary care providers have been

essentially within normal limits (Exhibits 2F/57-58, 117; 3F/41-42; 6F/115-

16, 122-23, 127-28, 132-33, 137-38, 143, 149). Although physical exams of

the claimant have shown her to have some tenderness in her right Knee,

the claimant's right knee has also been found upon exam by her orthopedic

providers to be neurologically intact, to have a good range of motion, and

to have intact strength (Exhibits 8F, 9F). In addition, the claimant has shown

improvement in her right Knee during the course of physical therapy (Exhibit

7F). For all of the foregoing reasons, these treating records provide support

for, and are consistent with, the undersigned’s conclusion that the claimant

retains the ability to perform light exertional work with some postural and

environmental restrictions.

Id.

The administrative transcript lacks any medical source opinion addressing

plaintiff's physical RFC. See generally Dkt. No. 8. The ALJ failed to explain how bare

medical records, diagnostic test results, plaintiff's subjective reports of her symptoms,

and her various diagnoses amount to substantial evidence in support of the RFC. See

Gonzalez v. Comm’r of Soc. Sec., No. 21-ClV-800 (VB/JCM), 2022 WL 3348386, at *11

(S.D.N.Y. May 27, 2022), report and recommendation adopted sub nom. Gonzalez v.

Kijakazi, No. 21-CV-800 (VB), 2022 WL 3348525 (S.D.N.Y. Aug. 12, 2022) (quoting

Kinslow v. Colvin, No. 5:12-CV-1541 (GLS/ESH), 2014 WL 788793, at *5 (N.D.N.Y. Feb.

25, 2014)) (“ALJ is not qualified ‘to assess residual functional capacity on the basis of

bare medical findings.””); Kinslow, 2014 WL 788793, at *5 (citing Hazlewood v.

Commissioner of Soc. Sec., No. 6:12-CV-798 (DNH/ATB), 2013 WL 4039419, at *5

_|(N.D.N.Y. Aug. 6, 2013) (additional citation omitted)) (“[W]hen medical findings merely

diagnose impairments without relating diagnoses to specific residual physical, mental

and other work-related capacities, an administrative law judge’s determination of

residual functional capacity without a medical advisor’s assessment of those capacities

is not supported by substantial evidence.”).

“[A]lthough the RFC determination is an issue reserved for the ALJ, an ALJ

m| Cannot arbitrarily substitute [her] own judgment for [a] competent medical opinion.”

Balaguer Perez v. Berryhill, No. 17-CV-3045 (JMA), 2019 WL 1324949, at *5 (E.D.N.Y.

Mar. 25, 2019) (quoting Ba/samo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (internal

citation omitted)); see Hilsdorf v. Comm’r of Soc. Sec., 724 F. Supp. 2d 330, 347

(E.D.N.Y. 2010) (“Because an RFC determination is a medical determination, an ALJ

who makes an RFC determination in the absence of supporting expert medical opinion

10

has improperly substituted his own opinion for that of a physician, and has committed

legal error.”). “Stated another way, when no medical source opinion supports an

administrative law judge’s residual functional capacity finding, that finding lacks

substantial evidentiary support.” Kinslow, 2014 WL 788793, at “5 (citation omitted).

Here, “[i]Jnstead of relying on a medical opinion, the ALJ determined Plaintiff's

“| RFC based on her own interpretation of the medical evidence in the record and

Plaintiff's testimony.” Balaguer Perez, 2019 WL 1324949 at *6. “Thus, as plaintiff

contends, without ‘substitut[ing her] own judgment for competent medical opinion,’ it

was impossible, based on this record, for the ALJ to reach the RFC determination

contained in the hearing decision.” Melanie M. v. Comm’r of Soc. Sec., No. 5:19-CV-

571 (CFH), 2020 WL 4335495, at *6 (N.D.N.Y. July 28, 2020) (quoting Balsamo, 142

_| F.3d at 81 (2d Cir. 1998)); see also House v. Astrue, No. 5:11-CV-915 (GLS), 2013 WL

422058, at “4 (N.D.N.Y. Feb. 1, 2013) (citation omitted) (“Because there is no medical

source opinion supporting the ALJ’s finding that House can perform sedentary work, the

court concludes that the ALJ’s RFC determination is without substantial support in the

record and remand for further administrative proceedings is appropriate.”). As there is

no medical source opinion regarding plaintiff's physical limitations to be able to support

m| the ALJ’s physical RFC, the undersigned recommends remanding this matter to the

Commissioner to obtain a medical source opinion addressing plaintiff's physical RFC.

b. Mental RFC

i. RFC Legal Standard

“RFC describes what a claimant is capable of doing despite his or her

impairments, considering all relevant evidence, which consists of physical limitations,

symptoms, and other limitations beyond the symptoms.” Joseph J. B., 2024 WL

4217371, at *8 (quoting Malcolm M. v. Comm’r of Soc. Sec., No. 1:17-CV-986 (CFH),

2019 WL 187725, at *4 (N.D.N.Y. Jan. 14, 2019) (first citing Martone, 70 F. Supp. 2d at

150, then citing 20 C.F.R. §§ 404.1545, 416.945)). “[A]n RFC finding is administrative in

nature, not medical, and its determination is within the province of the ALJ.” /d. (quoting

Curry v. Comm’r of Soc. Sec., 855 F. App’x 46, 48 n.3 (2d Cir. 2021) (summary order)

(citing 20 C.F.R. § 404.1527(d)(2))). “In assessing RFC, the ALJ’s findings must specify

the functions plaintiff is capable of performing; conclusory statements regarding

plaintiff's capabilities are not sufficient.” /d. (quoting Martone, 70 F. Supp. 2d at 150

(citations omitted)).

“In making the RFC determination, the ALJ must consider all relevant medical

other evidence, including any statements about what the claimant can still do

provided by any medical sources.” Joseph J. B., 2024 WL 4217371, at *8 (citing 20

C.F.R. §§ 404.1545(a)(3), 404.1546(c)). “[T]he ALJ’s conclusion [need] not perfectly

correspond with any of the opinions of medical sources cited in his [or her] decision,

[and] he [or she i]s entitled to weigh all of the evidence available to make an RFC

finding that [i]s consistent with the record as a whole.” /d. (quoting Matta v. Astrue, 508

m| F. App’x 53, 56 (2d Cir. 2013) (summary order)). “The Court ‘defer[s] to the

Commissioner’s resolution of conflicting evidence[.]” /d. (quoting Smith v. Berryhill, 740

F. App’x 721, 726 (2d Cir. 2018) (summary order) (internal citation omitted)).

“Therefore, even if a plaintiff disagrees with the ALJ’s assessment of opinion evidence

and can point to evidence in the record to support his or her position, whether there is

substantial evidence supporting the [plaintiff's] view is not the question; rather, [the

12

Court] must decide whether substantial evidence supports the ALJ’s decision.” /d.

(quoting Elizabeth P. v. Comm’r of Soc. Sec., No. 3:20-CV-891 (CFH), 2022 WL 507367,

at *4 (N.D.N.Y. Feb. 18, 2022)) (internal quotation marks and citation omitted). “The

ALJ must not ignore evidence or cherry pick only the evidence from medical sources

that support a particular conclusion and ignore the contrary evidence, but [t]he Court will

"| not reweigh the evidence that was before the ALJ.” /d. (quoting April B. v. Saul, No.

8:18-CV-682 (DJS), 2019 WL 4736243, at *6 (N.D.N.Y. Sept. 27, 2019) (internal

quotation marks and citations omitted).

“For claims filed on or after March 27, 2017, the ALJ ‘will not defer or give any

specific evidentiary weight, including controlling weight, to any medical opinion(s) or

prior administrative medical finding(s), including those from your medical sources.”

_,| Lena Nicole H., 2024 WL 4133819, at “5 (quoting 20 C.F.R. §§ 404.1520c(a),

416.920c(a)). “Instead, the ALJ will evaluate the persuasiveness of medical opinions

and prior administrative medical findings using the following factors: (1) supportability,

(2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other

factors that tend to support or contradict a medical opinion or prior administrative

medical finding.” /d. (citing 20 C.F.R. §§ 404.1520c(c), 416.920c(c)). “Of those, the

m| factors of supportability . . . and consistency . . . are the most important factors.” /d.

(quoting 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2)); see also Loucks v. Kijakazi, No.

21-1749, 2022 WL 2189293, at *1 (2d Cir. June 17, 2022).

“An ALJ is specifically required to explain how [he or she] considered the

supportability and consistency factors for a medical opinion.” Lena Nicole H., 2024 WL

4133819, at “5 (quoting 20 C.F.R. §§ 404.1520c (b)(2), 416.920c(b)(2) (internal

13

quotation marks omitted)); see also Matthew S. v. Comm’r of Soc. Sec., No. 6:23-CV-

281 (AMN/MJk), 2024 WL 2053412, at *3 (N.D.N.Y. Mar. 6, 2024), report and

recommendation adopted sub nom. Matthew D. S. v. Comm’r of Soc. Sec., No. 6:23-

CV-281 (AMN/MJk), 2024 WL 1635684 (N.D.N.Y. Apr. 16, 2024) (quoting Prieto v.

Comm’r of Soc. Sec., No. 20-CV-3941 (RWL), 2021 WL 3475625, at *9 (S.D.N.Y. Aug.

“16, 2021) (citing 20 C.F.R. § 404.1520c(b)(2))) “An ALJ must not only consider

supportability and consistency in evaluating medical source opinions but also must

explain the analysis of those factors in the decision.”).

“With respect to supportability, [t]he more relevant the objective medical evidence

and supporting explanations presented by a medical source are to support his or her

medical opinion(s) or prior administrative medical finding(s), the more persuasive the

Medical opinions or prior administrative medical finding(s) will be.” Lena Nicole H., 2024

WL 4133819, at *5 (quoting 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1)) (internal

quotation marks omitted). “With respect to consistency, [t]he more consistent a medical

opinion(s) or prior administrative medical finding(s) is with the evidence from other

medical and nonmedical sources in the claim, the more persuasive the medical

opinion(s) or prior administrative medical finding(s) will be.” /d. (quoting 20 C.F.R. §§

m| 404.1520c(c)(2), 416.920c(c)(2)) (internal quotation marks omitted).

ii. Mental RFC Analysis

In determining plaintiff's mental RFC, the ALJ relied on the opinions of the

consultative state agency review psychologists, Dr. Leiber-Diaz and Dr. Jurgia, finding

them “generally persuasive.” T. at 25 (citing Ex. 2A, T. at 74; Ex. 4A, T. at 89; Ex. 6A, T.

at 106; Ex. 8A, T. at 123). The ALJ explained that these opinions were supported by

14

“program knowledge and expertise, their review of the available evidence of record, and

the detailed explanation they furnished for their opinion” and “consistent with the

evidence of record that was available to them, as well as with course of the claimant’s

treatment for her psychiatric condition since the alleged disability onset date.” /d. at 25-

26.

“[A]n ALJ should not rely on ‘stale’ [medical source] opinions ... .” Steve P. v.

Comm’r of Soc. Sec., No. 19-CV-492 (MWP), 2021 WL 307566, at *5 (W.D.NLY. Jan. 29,

2021) (quoting Robinson v. Berryhill, No. 1:17-CV-362 (LJV/JJM), 2018 WL 4442267, at

*4 (W.D.N.Y. Sept. 17, 2018)). “In general, medical source opinions that are conclusory,

stale, and based on an incomplete medical record may not be substantial evidence to

support an ALJ finding.” Michael R. D. v. Comm’r of Soc. Sec., No. 1:21-CV-215 (JLS),

2023 WL 3869022, at *4 (W.D.N.Y. June 7, 2023) (quoting Camille v. Colvin, 104 F.

Supp. 3d 329, 343 (W.D.N.Y. 2015), aff'd, 652 F. App’x 25 (2d Cir. 2016) (summary

order)) (internal quotation marks omitted). “Medical opinions are rendered ‘stale’ by a

‘new significant diagnosis’ or ‘significant deterioration’ in the plaintiff's condition.”

Angele J. W. v. Comm’r of Soc. Sec., No. 6:23-CV-824 (BKS/CFH), 2024 WL 4204301,

at *5 (N.D.N.Y. July 24, 2024), report and recommendation adopted, No. 6:23-CV-824

m| (BKS/CFH), 2024 WL 4204017 (N.D.N.Y. Sept. 16, 2024) (quoting Benitez v. Comm’r of

Soc. Sec., No. 23-CV-1327 (ARL), 2024 WL 1332612, at *8 (E.D.N.Y. Mar. 28, 2024)

(quoting Andrea G. v. Comm’r of Soc. Sec., No. 5:20-CV-1253 (TWD), 2022 WL

204400, at *7 (N.D.N.Y. Jan. 24, 2022))); see Carney v. Berryhill, No. 16-CV-269 (FPG),

2017 WL 2021529, at *6 (W.D.N.Y. May 12, 2017) (“[A] medical opinion may be stale if it

does not account for the [plaintiff's] deteriorating condition.”). The passage of time does

15

not render a medical source opinion “stale” as long as “the subsequent evidence does

not undermine [the opinion evidence].” Steve P,, 2021 WL 307566, at *5 (quoting

Hernandez v. Colvin, No. 15-CV-6764 (CJS), 2017 WL 2224197, at *9 (W.D.N.Y. May

22, 2017) (citing Camille v. Colvin, 652 F. App’x 25, 28 n.4 (2d Cir. 2016) (summary

order) (additional citation omitted))).

In January and March 2022, Dr. Leiber-Diaz and Dr. Jurgia opined that plaintiff

“retained the ability to perform the basic mental demands of unskilled work in a setting

that had limited contact with others.” T. at 74, 89, 106, 123. Dr. Leiber-Diaz and Dr.

Jurgia based their opinions on plaintiff's May 2021 to March 2022 medical records. See

id. at 66-67, 74, 81-82, 89, 97-98, 105-106, 113-15, 122-123. Dr. Leiber-Diaz and Dr.

Jurgia listed plaintiff's symptoms as (1) anxious mood; (2) fair-to-poor insight; (3) poor

judgment; (4) bipolar disorder, anxiety with panic attacks, and posttraumatic stress

disorder (“PTSD”); (5) manic episodes; (6) paranoid behavior; (7) suicidal ideation and

attempts, requiring multiple hospitalizations; (8) elevated affect; (9) over-productive

speech; (10) depressed affect; and (11) daily anxiety that can last for five-to-sixty

minutes. See id.

The administrative transcript contains additional treatment records from March

m| 2022 to June 2023 that Dr. Leiber-Diaz or Dr. Jurgia could not have reviewed because

they were generated after the doctors issued their opinions. See T. at 710-860. These

additional records indicate that plaintiff continued to receive mental health treatment and

suffered from what appear to be changes or increased symptomology. In March 2022,

plaintiff reported “no improvement in decreasing symptoms of anxiety.” /d. at 711. In

April 2022, plaintiff was diagnosed with having a severe manic episode with psychotic

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features. See id. at 716. Later that month, plaintiff reported changes in the side effects

from her medications, specifically, that her Aristada wore off one week prior to its next

dose and caused her to have a “blank state” and “funky thoughts,” and her Clonidine

caused her to be “more irritable and angry.” /d. at 718. Doctors then prescribed her

Aristada injections at an increased frequency. See id. In May 2022, doctors changed

plaintiff's medications and prescribed Lithium. See id. at 724.

In December 2022, plaintiff reported, “I feel nuts again.” T. at 765. Plaintiff

complained of “having a lot of ups and [dJowns, feeling irritable, angry, depressed, [and]

‘all over the place.” /d. Doctors adjusted her medications and increased her Lithium

dosage for one-to-two weeks. See id. Later that month, plaintiff was hospitalized for

depression and anxiety for ten days. See id. at 771. In January 2023, plaintiff reported

_,| suffering from manic behaviors. See id. In February 2023, plaintiff reported that she

“had a panic attack when | was shopping today.” /d. at 787. In March 2023, plaintiff

claimed she suffered from manic symptoms, felt irritable, and had little patience when

interacting with her daughter. See jd. at 799. Although plaintiff reported improvements

and decreased symptomology at various points between March 2022 to June 2023,

there were also subsequent increases in symptomology. See jd. at 728, 742, 755, 793,

m| 814, 820.

Further, Dr. Leiber-Diaz and Dr. Jurgia’s opinions are based on an incomplete

medical record at the time their assessments were issued. See Michael R. D., 2023 WL

3869022, at *4; Robert T. S. v. Comm’r of Soc. Sec., No. 5:21-CV-38 (CFH), 2022 WL

1746968, at *13 (N.D.N.Y. May 31, 2022) (quoting Jason J. v. Kijakazi, No. 1:20-CV-

1298 (NAM), 2021 WL 5356308, at *8 (N.D.N.Y. Nov. 17, 2021) (quoting Fambo v.

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Commrr of Soc. Sec., 474 F. Supp. 3d 603, 608 (W.D.N.Y. 2020)) (“In general, an ALJ

should not rely on medical source opinions that are . . . ‘based on an incomplete

medical record.””). As stated above, Dr. Leiber-Diaz and Dr. Jurgia based their opinions

on plaintiff's medical records from May 2021 to March 2022. See T. at 66-67, 74, 81-82,

89, 97-98, 105-106, 113-15, 122-123.

The administrative transcript also contains treatment records documenting that in

April 2021, plaintiff (1) was placed on an involuntary psychiatric hold, and (2) admitted

herself to the emergency room due to mental health symptoms. See T. at 861-62. At

this time, plaintiff's mental health symptoms were recorded as rapid and incoherent

speech, anxious mood, flattened affect, and disorganized and illogical thought

processes. See id. at 878-79. In May 2021, plaintiff returned to the hospital after

_,| suffering from paranoia, visual hallucinations, and flashbacks to prior traumatic events.

See id. at 899. In June 2022, plaintiff reported “no improvement in decreasing

symptoms of anxiety.” /d. at 923. In December 2022, plaintiff was hospitalized again

after reporting “worsening depression with suicidal ideations.” /d. at 926. Plaintiff

stated, “| was at the point where | had to seek help or | would have hurt myself.” /d. at

935. Plaintiff reported poor sleep, poor concentration, hopelessness, and experiencing

m| One panic attack every other day for the prior two weeks. See id.

Therefore, the undersigned concludes that Dr. Leiber-Diaz and Dr. Jurgia’s

opinions are based on an incomplete medical record and are stale as they do not

address any changes or potential deterioration in plaintiff's mental health condition after

their opinions were issued. See Michael R. D., 2023 WL 3869022, at *4; Angele J. W.,

2024 WL 4204301, at *5; Steve P, 2021 WL 307566, at *5 (quoting Davis v. Berryhill,

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No. 6:16-CV-6815 (MAT), 2018 WL 1250019, at *3 (W.D.N.Y. Mar. 11, 2018)) (“Medical

source opinions that are stale and based on an incomplete medical record may not be

substantial evidence to support an ALJ[’s] finding.”); Jones v. Comm’r of Soc. Sec., No.

10-CV-5831 (RJD), 2012 WL 3637450, at *2 (E.D.N.Y. Aug. 22, 2012) (holding that the

ALJ should not have relied on a medical opinion because “by plaintiff's hearing date, the

disability examiner's opinion that Jones could perform light work was 1.5 years stale,

and did not account for her deteriorating condition.”); Mattison v. Comm’r of Soc. Sec.,

No. 1:18-CV-1339 (EAW), 2020 WL 13558228, at *4 (W.D.NLY. Jan. 29, 2020)

(remanding because “the lack of any non-stale medical opinion regarding Plaintiff's

mental impairments created an obvious gap in the record that the ALJ was obligated to

fill.”); Maxwell H. v. Comm’r of Soc. Sec., No. 1:19-CV-148 (LEK/CFH), 2020 WL

1187610, at *6-7 (N.D.N.Y. Mar. 12, 2020) (remanding and ordering a new medical

source statement where the ALJ relied on a stale medical opinion to determine the

plaintiffs mental RFC.); Cf. Tederrell G. v. Comm’r of Soc. Sec., No. 5:20-CV-1129

(GLS/CFH), 2022 WL 827787, at *14 (N.D.N.Y. Feb. 22, 2022), report and

recommendation adopted, No. 5:20-CV-1129 (GLS/CFH), 2022 WL 823664 (N.D.N.Y.

Mar. 18, 2022) (holding that medical opinions from 2016 were not rendered stale by

m| records from 2018 and 2019 because the “ALJ accounted for the worsening in plaintiff's

right wrist by limiting him to frequent handling of the right upper extremity... .

Therefore, although neither medical opinion reached right-handed limitations, the ALJ’s

decision to include the limitation is supported by the record.”); Laura Anne H. v. Saul,

No. 6:20-CV-397 (TWD), 2021 WL 4440345, at *6 (N.D.N.Y. Sept. 28, 2021) (declining

to remand and holding that a medical opinion was not stale despite the plaintiff's

19

“subsequent treatment and surgeries,” because the “[p]laintiff neither demonstrated

additional associated functional limitations that undermine[d the medical] opinion, nor

identified any relevant evidence post-dating [the medical] opinion that the ALJ failed to

consider.”); Luis M. v. Comm’r of Soc. Sec., No. 1:19-CV-1151, 2021 WL 168475, at *3

(W.D.N.Y. Jan. 19, 2021) (declining to remand the ALJ’s decision where “[the p]laintiff

“| cites evidence in the record which he argues supports a finding of worsening symptoms;

however, the ALJ discussed the evidence cited by [the p]laintiff and concluded

otherwise.”); Johnson v. Comm’r of Soc. Sec., No. 1:19-CV-706 (CJS), 2020 WL

5104550, at *8 (W.D.N.Y. Aug. 31, 2020) (holding that a medical consultative report was

not stale because although it was issued prior to the plaintiff's motor vehicle accident

and surgery, “there is substantial evidence (normal clinical findings) to support the ALJ’s

_,| determination that [the p]laintiff's condition did not worsen following the consultative

exam.”). Accordingly, the undersigned recommends remand to consider the impact of

plaintiff's mental health records that were not a part of Dr. Leiber-Diaz and Dr. Jurgia’s

assessments.

V. Conclusion

WHEREFORE, for the reasons set forth herein, it is hereby:

RECOMMENDED, that plaintiff's cross-motion (Dkt. No. 9) be GRANTED; and it

is further

RECOMMENDED, that the Commissioner’s cross-motion (Dkt. No. 15) be

DENIED, and the Commissioner’s decision be reversed and remanded for further

proceedings consistent with this Report-Recommendation and Order; and it is

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ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order

on all parties in accordance with Local Rules.

IT IS SO ORDERED.

Pursuant to 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. Roldan v. Racette,

984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. 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.

Dated: July 21, 2025

Albany, New York

Paul J. Evangelista

U.S. Magistrate Judge

tn

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