Ptak v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________

PAUL P.,

Plaintiff,

-v- 5:24-CV-420 (AJB/TWD)

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

_____________________________________

Hon. Anthony Brindisi, U.S. District Judge:

DECISION and ORDER

I. INTRODUCTION

On March 26, 2024, plaintiff Paul P.1 (“plaintiff”) filed this action seeking review of the

final decision of defendant Commissioner of Social Security (“Commissioner” or “defendant”)

denying his application for Supplemental Security Income (“SSI”) under the Social Security Act

(the “Act”). Dkt. No. 1. Along with his complaint, plaintiff also moved for leave to proceed in

forma pauperis (“IFP Application”). Dkt. No. 3. The matter was referred to U.S. Magistrate

Judge Thérèse Wiley Dancks, who granted plaintiff’s IFP Application. Dkt. No. 7. Thereafter,

the Commissioner filed a certified copy of the Administrative Record, Dkt. No. 8, and a briefing

schedule was set for the appeal, Dkt. No. 10.

However, on August 13, 2024, plaintiff’s counsel moved to withdraw, citing remarks that

plaintiff made on social media about the quality of his firm’s representation. Dkt. No. 11. Judge

1 On May 1, 2018, the Judicial Conference’s Committee on Court Administration and Case Management issued a

memorandum that encouraged courts to better protect the privacy of non-governmental parties in Social Security

matters by using only the first name and last initial of the claimant in published opinions.

Dancks placed that motion under seal “due to attorney/client privilege information” included in

the filing, stayed the existing deadlines on submissions related to plaintiff’s appeal, and directed

the parties to submit briefing on the representation issue instead. Dkt. No. 12.

On February 11, 2025, after considering plaintiff’s response, Dkt. No. 14, Judge Dancks

granted the motion to withdraw, reasoning that the relationship between plaintiff and his counsel

had become irreconcilable.2 Dkt. No. 16. At that time, Judge Dancks gave plaintiff forty-five

days in which to notify the Court whether he had secured new counsel or would be proceeding

pro se in this appeal. Id. Plaintiff sought and received several extensions of time in which to

locate substitute counsel. Dkt. Nos. 20, 22, 24. But after a four-month period of time elapsed

without the appearance of a different attorney on plaintiff’s behalf, Judge Dancks “consider[ed]

plaintiff to be appearing pro se” and set a renewed briefing schedule for the appeal. Dkt. No. 24.

The parties have briefed the matter in accordance with General Order 18, which provides

that an appeal taken from a final decision denying benefits will be treated as if the parties have

cross-moved for a judgment on the pleadings. Dkt. No. 25, 27, 28.3 Plaintiff’s appeal will be

considered on the basis of the submissions without oral argument.

II. BACKGROUND

On March 17, 2021, plaintiff applied for SSI, alleging that his short-term memory loss,

learning disability, and anxiety rendered him disabled beginning on May 2, 2020. R. at 16, 257,

273, 278.4 Plaintiff’s claim was denied on August 2, 2021, R. at 131–44, and denied again after

2 The case was initially assigned to U.S. District Judge Anne M. Nardacci, but reassigned to this Court shortly

before Judge Dancks granted counsel’s motion to withdraw. Dkt. No. 15.

3 Non-party Mary P., plaintiff’s mother, submitted a letter on his behalf. Dkt. No. 27. In light of plaintiff’s pro se

status, the Court has considered this non-party filing as part of the appeal.

4 Citations to “R.” refer to the Administrative Record. Dkt. No. 8.

reconsideration on November 9, 2021, R. at 146–57. At plaintiff’s request, a video hearing was

held before Administrative Law Judge (“ALJ”) Kenneth Theurer on March 6, 2023. R. at 42–64.

Plaintiff, represented by non-attorney Kevin Dwyer, appeared and testified. Id. In addition, the

ALJ heard testimony about certain job requirements from Vocational Expert Jessica Conard. Id.

On March 14, 2023, the ALJ issued a written decision denying plaintiff’s application for

benefits. R. at 16–29. The ALJ’s decision became the final decision of the Commissioner on

February 6, 2024, when the Appeals Council denied plaintiffs’ request for review. R. at 1–7.

III. LEGAL STANDARD

The Act defines “disability” 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), 1382c(a)(3)(A). To qualify as disabled within the

meaning of this definition, the Act requires that a claimant’s:

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, regardless of whether such work exists in the immediate

area in which he lives, or whether a specific job vacancy exists for

him, or whether he would be hired if he applied for work.

42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

ALJs follow a five-step sequential evaluation process to decide whether the claimant is

disabled. 20 C.F.R. §§ 404.1520, 416.920(a)(4).5 The burden of proof for the first four steps is

5 The Act provides disability benefits under two programs: Title II, which governs Disability Insurance Benefits

(“DIB”), and Title XVI, which governs Supplemental Security Income (“SSI”). See, e.g., Smith v. Berryhill, 587

U.S. 471, 475 (2019). The applicable federal regulations direct ALJs to follow the same five-step evaluation for

claims under either program. Accordingly, “decisions under these sections are cited interchangeably.” Donato v.

Sec’y of Dep’t of Health & Human Servs., 721 F.2d 414, 418 n.3 (2d Cir. 1983).

on the claimant. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). “In step five, the burden shifts,

to a limited extent, to the Commissioner to show that other work exists in significant numbers in

the national economy that the claimant can do.” Schillo v. Kijakazi, 31 F.4th 64, 70 (2d Cir.

2022); see also Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (explaining step-five burden

shift is considered “limited” because the Commissioner “need not provide additional evidence of

the claimant’s residual functional capacity”).

At step one, the ALJ determines whether the claimant is currently engaged in “substantial

gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is still able to

work and the work he is doing qualifies as “substantial gainful activity,” he is not disabled within

the meaning of the Act, regardless of his medical condition or any other factors. §§ 404.1520(b),

416.920(b).

However, if the claimant has not been working at a level that qualifies as “substantial

gainful activity,” step two requires the ALJ to determine whether the claimant has a “severe”

impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c),

416.920(a)(4)(ii). An impairment is “severe” if it “significantly limits” a claimant’s physical or

mental ability to do basic work activities. §§ 404.1520(c), 416.920(c).

If the claimant has a “severe” impairment or combination of impairments, at step three

the ALJ must determine whether the impairment(s) meet or equal any of the impairments listed

in Appendix 1 (the “Listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the

claimant’s “severe” impairment(s) meet or medically equal one or more of these Listings, the

claimant will be found presumptively disabled regardless of any other factors. §§ 404.1520(d),

416.920(d).

However, if the claimant is not found presumptively disabled under the Listings, at step

four the ALJ must determine whether, “based on all the relevant medical and other evidence in

the record,” 20 C.F.R. §§ 404.1520(e), 416.920(e), the claimant still has the “residual functional

capacity” (“RFC”) to do his “past relevant work.” §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If

the claimant’s RFC is compatible with “the physical and mental demands” of his “past relevant

work,” he is not disabled within the meaning of the Act. §§ 404.1520(f), 416.920(f).

Finally, if the claimant cannot perform his “past relevant work,” the Commissioner must

determine if the claimant’s RFC, in combination with his age, education, and work experience,

permits the claimant to make the adjustment to other work in the national economy. 20 C.F.R.

§§ 404.1520(a)(4)(v), (f)–(g), 416.920(a)(4)(v), (f)–(g). If so, he is not disabled. Id. However,

if there is no other work in the national economy that the claimant can perform consistent with

his RFC, the claimant will be found disabled within the meaning of the Act. Id.

The Act provides for judicial review of “any final decision . . . made after a hearing” by

the Social Security Administration. 42 U.S.C. §§ 405(g), 1383(c)(3). This scope of this judicial

review is fairly deferential. See, e.g., Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Review

limited to whether the Commissioner applied the correct legal standards to his analysis and, if so,

whether the decision is supported by “substantial evidence.” Selian v. Astrue, 708 F.3d 409, 417

(2d Cir. 2013) (per curiam) (cleaned up).

The phrase “substantial evidence” is a term of art used in the context of judicial review of

an agency’s factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. 293, 301 (2015). “[T]he

threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 587 U.S. 97, 103

(2019). Substantial evidence is a “very deferential standard of review—even more so than the

‘clearly erroneous’ standard.” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir.

2012). “Substantial evidence means more than a mere scintilla. It means such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569

F.3d 108, 112 (2d Cir. 2009) (cleaned up). “Where there is substantial evidence to support either

position, the determination is one to be made by the factfinder.” Alston v. Sullivan, 904 F.2d

122, 126 (2d Cir. 1990).

Importantly, though, this “deferential standard of review for substantial evidence does not

apply to the Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.

2003). Thus, “where there is a reasonable basis for doubting whether the Commissioner applied

the appropriate legal standards,” the final decision should be reversed even if there is “substantial

evidence” in the record. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

IV. DISCUSSION

The ALJ applied the five-step sequential analysis to plaintiff’s SSI benefits claim and

determined that: (1) plaintiff had not engaged in substantial gainful activity since March 17,

2021, the SSI application date; (2) plaintiff’s general anxiety disorder, depressive disorder, and

intellectual disability were “severe” impairments; and (3) these “severe” impairments, whether

considered individually or in combination, did not meet or equal any of the Listings. R. 17–23.

At step four, the ALJ determined that plaintiff retained the RFC to perform a “full range

of work at all exertional levels” with a partial set of non-exertional limitations, i.e.:

the claimant retains the ability to do work limited to simple, routine,

and repetitive tasks in a work environment free of fast paced

production requirements as would be experienced on an assembly

line; involving only simple, work-related decisions; with few, if any,

work place changes. The claimant can interact with supervisors,

coworkers, and the public on an occasional basis throughout the

work day after learning his job duties from an instructional or

demonstrational lesson.

R. at 23.

Next, the ALJ determined that plaintiff had no past relevant work. R. at 28. However,

after considering plaintiff’s age and education in light of the RFC and the Vocational Expert’s

testimony, the ALJ found that plaintiff retained the physical and mental abilities to perform the

job duties of a “stores laborer,” a “cleaner,” or a “laundry worker.” R. at 28–29. Because these

representative jobs existed in significant numbers in the national economy, the ALJ concluded

that plaintiff was not disabled between March 17, 2021, the application date, and March 14,

2023, the date of his written decision. R. at 29. Accordingly, the ALJ denied plaintiff’s

application for benefits. Id.

A. Plaintiff’s Appeal

Plaintiff’s four-page brief states that the ALJ should have found him disabled because of

the combined effect of his mental impairments, including his dyslexia, short-term memory loss,

anxiety, panic attacks, and learning disabilities. Dkt. No. 25. As plaintiff explains, he suffered a

concussion from a childhood bicycle accident that left him with short-term memory loss. Id. In

addition, he suffered a dirt bike accident that caused him some physical trauma. Id. Finally, he

states that he recently suffered a lightning injury and is now seeing a neurologist. Id. Plaintiff’s

mother’s submission reiterates that he suffers from memory problems and learning disabilities,

noting that it took him a long time to write the letter to the Court. Dkt. No. 27.

The Commissioner responds that plaintiff’s argument amounts to an improper request for

this Court to reweigh the evidence in a way that is more favorable to him. Dkt. No. 28 at 7. In

the Commissioner’s view, the ALJ correctly applied the five-step sequential evaluation process,

appropriately considered the medical evidence of plaintiff’s mental and physical limitations, and

reasonably relied on medical opinions from psychological consultants to conclude that, despite

limitations in various areas of mental functioning, plaintiff retained the RFC to perform a range

of simple or unskilled work. Id. at 7–12. In doing so, the Commissioner argues that the ALJ

permissibly discounted the considerably more restrictive findings from plaintiff’s primary care

provider and partially discounted plaintiff’s subjective testimony about the nature and extent of

his symptoms. Id. at 13–15. Finally, as for step five, the Commissioner contends that the ALJ’s

finding was supported by substantial evidence, and in particular the job-related testimony offered

at the hearing by the Vocational Expert. Id. at 15–17.

Because plaintiff is pro se, the Court has gone beyond the issues referenced in plaintiff’s

brief and independently reviewed the hearing transcript, R. at 42–64, the ALJ’s written decision,

id. at 16–29, and the Commissioner’s brief, Dkt. No. 28. This independent review confirms that

the ALJ applied the correct legal standards and supported his findings with substantial evidence

in the record.

An examination of the substance of plaintiff’s arguments confirms that—with the limited

exception of certain “new” evidence from June 27, 2023, which will be discussed separately near

the conclusion—the ALJ adequately considered the available record evidence of the physical and

mental impairments identified by plaintiff, reached supportable conclusions about the nature and

extent of those impairments, and permissibly concluded that plaintiff was not “disabled” within

the meaning of the Act.

The ALJ’s analysis begins in earnest at step two, which required him to determine

whether plaintiff had one or more “severe” impairments, i.e., a condition that “significantly

limits” the claimant’s physical or mental ability to do “basic work activities.” 20 C.F.R. §§

404.1520(c), 416.920(c). “Basic work activities” include things like walking, standing, sitting,

lifting, carrying, pushing, pulling, reaching, handling seeing, hearing, speaking, understanding,

remembering and carrying out instructions, using judgment, and responding appropriately to

supervisors, co-workers, and usual work situations. See, e.g., Taylor v. Astrue, 32 F. Supp. 3d

253, 256 (N.D.N.Y. 2012).

This “severity” requirement is de minimis—it is meant to screen out only the weakest of

claims. Nedzad O. v. Comm’r of Soc. Sec., 577 F. Supp. 3d 37, 43 (N.D.N.Y. 2021). “However,

despite this lenient standard, the mere presence of a disease or impairment, or establishing that a

person has been diagnosed or treated for a disease or impairment is not, by itself, sufficient to

render a condition severe.” Id. (cleaned up). “Rather, to be considered severe, an impairment or

combination of impairments must cause more than minimal limitations in a claimant’s ability to

perform work-related functions.” Id.

A review of the ALJ’s written decision confirms that he considered plaintiff’s history of

physical ailments, including the medical treatment that he received for his bicycle and dirt bike

crashes in his youth, before concluding that the current effect of these conditions did not qualify

as “severe” within the meaning of the Regulations.6 R. at 18 (citing Exhibits B14F, B15F, B17F,

and B19F–B22F). As the Commissioner points out, plaintiff has filed six prior SSI applications

(going back to 2003) that have been denied. R. at 273–74.

Plaintiff’s medical history was considered as part of those prior SSI applications. Absent

a compelling reason to do so, the ALJ was not obligated to revisit, on a wholesale basis, this

historical evidence—especially when it predates the time period relevant to plaintiff’s current

SSI application, which alleged disability beginning in May of 2020. See, e.g., Melissa R. v.

Comm’r of Soc. Sec., 2021 WL 4844153, at *4 (N.D.N.Y. Oct. 18, 2021) (noting consideration

of pre-onset-date evidence is not required because it is ordinarily irrelevant).

6 Plaintiff also raised these accidents and injuries during his testimony before the ALJ. R. at 50–51, 53–54.

Although the ALJ discounted the severity of plaintiff’s physical impairments, the ALJ

found that plaintiff’s mental impairments, i.e., his general anxiety disorder, depressive disorder,

and intellectual disability, were “severe” impairments at step two. R. at 17. “Where, as here,

mental impairments are at issue, the Commissioner directs administrative adjudicators to employ

a ‘psychiatric review technique’ (sometimes referred to as a ‘special technique’).” Amanda R. v.

Comm’r of Soc. Sec., 556 F. Supp. 3d 145, 151 (N.D.N.Y. 2021) (cleaned up).

This so-called “special technique” is used by ALJs to determine, as a threshold matter,

whether a claimant has one or more medically determinable mental impairments. Amanda R.,

556 F. Supp. 3d at 151. If the claimant suffers from one or more medically determinable mental

impairments, “[t]his technique also enables administrative law judges to determine whether

[those] medically determinable mental impairments are severe (a Step 2 issue) and whether they

meet or are equivalent in severity to any presumptively disabling mental disorder (a Step 3

issue).” Id. Briefly stated, this psychiatric review technique requires the ALJ to assess the

degree of functional limitation present in four broad areas: (1) understanding, remembering or

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

pace; and (4) adapting and managing oneself. 20 C.F.R. §§ 405.1520a(c)(3); 416.920a(c)(3).

A review of the ALJ’s narrative discussion reflects that he applied this special technique

to assess plaintiff’s mental impairments. See R. at 21. The ALJ found that plaintiff’s medical

history established that he suffered from general anxiety disorder, depressive disorder, and

intellectual disability. R. at 17–18. The ALJ analyzed the functional areas, determined that

plaintiff had “moderate” limitations in those four domains, id. at 19–20, but concluded that the

degree of plaintiff’s impairments were insufficient to meet or medically equal a Listing at step

three, id. at 18–23.7 There was no error in these findings. Cf. Brault v. Comm’r of Soc. Sec., 683

F.3d 443, 448 (2d Cir. 2012) (“The substantial evidence standard means once an ALJ finds facts,

we can reject those facts only if a reasonable factfinder would have to conclude otherwise.”).

“Where, as here, the ALJ finds at step two that a claimant has one or more ‘severe’

impairments but determines at step three that the claimant is not presumptively disabled, the ALJ

must go on to make an RFC finding, which is an assessment of ‘what an individual can still do

despite his or her limitations.” Tammy Lynn B. v. Comm’r of Soc. Sec., 382 F. Supp. 3d 184, 192

(N.D.N.Y. 2019) (cleaned up). “In making a residual functional capacity determination, the ALJ

must consider a claimant’s physical abilities, mental abilities, [and subjective symptomatology],

including pain and other limitations which could interfere with work activities on a regular and

continuing basis.” Samantha S. v. Comm’r of Soc. Sec., 385 F. Supp. 3d 174, 183 (N.D.N.Y.

2019) (citation omitted).

“The claimant’s RFC is determined based on all of the relevant medical and other

evidence in the record, including the claimant’s credible testimony, objective medical evidence,

and medical opinions from treating and consulting sources.” Rivera v. Comm’r of Soc. Sec., 368

F. Supp. 3d 626, 640 (S.D.N.Y. 2019). “In practice, administrative law judges rely principally

on medical source opinion and subjective testimony when assessing impaired individuals’ ability

to engage in work-related activities.” Tammy Lynn B., 382 F. Supp. 3d at 192–93 (citation

omitted).

7 The ALJ noted that plaintiff did not receive a cognitive assessment in connection with this application, but that he

had taken an IQ test as part of a prior application from 2018. R. at 23. At that time, plaintiff’s full-scale IQ score

was 71, which “indicated the claimant was functioning in the borderline range of intelligence.” Id. But the ALJ

appropriately considered, and reasonably concluded, that this score did not meet the criteria of Listing § 12.05. See,

e.g., Talavera v. Astrue, 697 F.3d 145, 153 (2d Cir. 2012) (explaining Regulations require more than a low IQ score

to establish necessary deficits in relative adaptive functioning and collecting cases).

Plaintiff’s best argument would turn on the ALJ’s treatment of medical opinion evidence

from Leland Jackson, M.D. and Kimberly Sandford, FNP, two treating providers at Camillus

Family Health Associates. The record indicates that Dr. Jackson, with the assistance of FNP

Sandford, has been plaintiff’s primary care provider since May of 2012. R. at 27. As relevant

here, Dr. Jackson submitted a medical source statement dated July 2, 2021, and supplemented it

with a notation on February 16, 2023. R. at 532–35, 628–31.

Among other things, Dr. Jackson opined that plaintiff is “unable to meet competitive

standards” in several mental areas ordinarily required to perform simple or unskilled work. R. at

532–35, 628–31; R. at 533 (defining “unable to meet competitive standards” as someone who

“cannot satisfactorily perform this activity independently, appropriately, effectively and on a

sustained basis in a regular work setting”).

Historically, an opinion from a treating physician enjoyed special treatment: it received

controlling weight if it was “well-supported by medically acceptable clinical and laboratory

diagnostic techniques and [was] not inconsistent with the other substantial evidence in [the]

record.” Amanda R., 556 F. Supp. 3d at 153 (citation omitted). However, the SSA promulgated

new Regulations governing the evaluation of medical source evidence for claims filed on or after

March 27, 2017. See, e.g., Colgan v. Kijakazi, 22 F.4th 353, 359 n.2 (2d Cir. 2022).

Under the current regime, the ALJ must evaluate the persuasiveness of “all of the medial

opinions” in the record based on the same general criteria: (1) supportability; (2) consistency

with other evidence; (3) the source’s relationship8 with the claimant; (4) the source’s area of

8 This “relationship” factor includes: (i) the length of the treating relationship; (ii) the frequency of examination;

(iii) the purpose of the treating relationship; (iv) the extent of the treating relationship; and (v) whether the source

examined the claimant. 20 C.F.R. §§ 404.1520c(c)(3); 416.920c(c)(3).

specialization; and (5) other relevant case-specific factors that tend to support or contradict a

medical opinion or medical finding. 20 C.F.R. §§ 404.1520c(c), 416.920c(c).

The two most important factors are supportability and consistency. §§ 404.1520c(b)(2),

416.920c(b)(2). Although the Regulations explicitly obligate the ALJ to explain how he or she

considered these two specific factors, “an explanation for the remaining factors is not required

unless the ALJ is deciding among multiple medical opinions of equal support and consistency on

the same issue that differ slightly.” Amanda R., 556 F. Supp. 3d at 154.

The record reflects that the ALJ applied this overarching legal standard and appropriately

discounted Dr. Jackson’s extremely restrictive mental findings after examining opinion evidence

from specialists, including less restrictive medical opinions offered by consultative psychological

examiners Corey Anne Grassl, Psy.D, and Marisol Valencia-Payne, Psy.D. R. at 554–57 (Dr.

Grassl); 595–99 (Dr. Valencia-Payne). Dr. Grassl and Dr. Valencia-Payne examined plaintiff,

recognized that he suffered from mental limitations, but opined that those limitations were, at

most, “moderate.” See id.

The ALJ also considered evidence from non-examining state agency psychology analysts

Y. Sherer, Psy.D, and S. Hennessey, Ph.D. R. at 27 (citing Exhibits B2A and B5B). Dr. Sherer

and Dr. Hennessey did not examine plaintiff, but reviewed the available evidence, determined

that plaintiff suffered from mental limitations, and concluded that the functional extent of those

limitations were, at most, “moderate.” Id.

In short, the ALJ was faced with a recurring issue: the treating and consulting opinions

offered conflicting views on the nature and extent of the plaintiff’s mental limitations. On one

hand was Dr. Jackson’s opinion, which offered a severely restrictive assessment of plaintiff’s

various mental impairments. On the other hand were the examining opinions of Drs. Grassl and

Valencia-Payne and the non-examining opinions of Drs. Sherer and Hennessey, who together

opined that plaintiff’s mental limitations were not nearly as severe as Dr. Jackson had opined.

To be sure, it can be difficult in the context of mental illness to extrapolate a plaintiff’s

“longitudinal mental health” from a single examination, which offers “a one-time snapshot of a

claimant’s status.” Estrella v. Berryhill, 925 F.3d 90, 98 (2d Cir. 2019). But ALJs are entitled to

rely on both examining and non-examining consultants when assessing the nature and extent of a

claimant’s physical or mental limitations. See, e.g., Kya M. v. Comm’r of Soc. Sec., 506 F. Supp.

3d 159, 164–65 (W.D.N.Y. 2020) (collecting cases).

The ALJ explored the conflicting medical opinion evidence offered by the treating and

consulting providers in his written decision. The ALJ dutifully evaluated the persuasiveness of

these opinions in accordance with the current rules. Among other things, the ALJ engaged in a

discussion of the relative supportability and consistency of these medical opinions. Ultimately,

the ALJ discounted Dr. Jackson’s opinion in favor of the opinions from the consultants.

There is no legal error in that approach. See, e.g., Ivy M. v. Comm’r of Soc. Sec., 2024

WL 4650857, at *7 (N.D.N.Y. Jan. 24, 2024). To the contrary, it is well-settled that a claimant

with “moderate” limitations can ordinarily do simple or “unskilled work.” See, e.g., Rushford v.

Kijakazi, 2023 WL 8946622, at *2 (2d Cir. Dec. 28, 2023) (affirming denial of benefits where

ALJ found the plaintiff with “moderate” mental limitations could engage in “unskilled, simple,

and routine tasks”).

The final question is what to do about plaintiff’s proposed “new” evidence of a lightning

injury on June 27, 2023. Dkt. No. 25. This evidence was not before the ALJ, since he issued his

decision on March 14, 2023. R. at 29. The Commissioner argues that plaintiff cannot show that

this “new” evidence is material to the relevant time period for this claim. Dkt. No. 28 at 17.

Generally, “evidence not contained in the administrative record may not be considered by

a district court when reviewing the findings of the Commissioner.” Clark v. Saul, 444 F. Supp.

3d 607, 625 (S.D.N.Y. 2020) (citation omitted). However, the court can remand a case “upon a

showing that there is new evidence which is material and that there is good cause for the failure

to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).

To justify a remand, the plaintiff must show that: (1) the evidence is “new and not merely

cumulative of what is already in the record”; (2) the evidence is “material,” that is, “both relevant

to the claimant’s condition during the time period for which benefits were denied and probative”;

and (3) “good cause for [his] failure to present the evidence earlier.” Tirado v. Bowen, 842 F.2d

595, 597 (2d Cir. 1988).

Plaintiff’s new medical evidence does not meet this standard. Based on what plaintiff has

represented, the new evidence is related to an injury he suffered on June 27, 2023, which is after

the time period relevant to the current benefits claim. Accordingly, this “new” evidence could

not be “material” within the meaning of this standard. Tirado, 842 F.2d at 597 (“The concept of

materiality requires . . . a reasonable possibility that the new evidence would have influenced the

Secretary to decide the claimant’s application differently.”).

IV. CONCLUSION

After reviewing the entire record, including the available briefs, the ALJ’s decision, the

transcript of the hearing, as well as the medical and other record evidence, the Commissioner’s

decision must be affirmed. To the extent that plaintiff’s “new” evidence, or the force of other

available evidence, suggests that he suffers from a worsening impairment or combination of

impairments, the proper course of action would likely be for plaintiff to submit a new application

for Social Security benefits, possibly with the assistance of counsel.

Therefore, it is

ORDERED that

1. The Commissioner’s motion is GRANTED;

2. Plaintiff’s motion is DENIED;

3. The Commissioner’s final decision is AFFIRMED; and

4. Plaintiff's complaint is DISMISSED.

The Clerk of the Court is directed to enter a judgment accordingly and close the file.

IT IS SO ORDERED.

Dated: September 22, 2025 , yf

Utica, New York.

Anthony J. =e

U.S. District Judg

-16-