Clunie v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MICHAEL C.,!

Plaintiff, DECISION AND ORDER

-vs-

24-CV-0602-MAV

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

INTRODUCTION

In June 2024, Michael C. (‘Plaintiff’) filed this action pursuant to 42 U.S.C.

§ 405(¢g), seeking judicial review of the Commissioner of the United States Social

Security Administration’s (“Commissioner”) denial of his application for Disability

Insurance Benefits (“DIB”). ECF No. 1. Both parties moved for judgment on the

pleadings pursuant to Federal Rule of Civil Procedure 12(c). ECF No. 7 (Plaintiff); ECF

No. 9 (Commissioner). For the reasons set forth below, the matter is remanded to the

Commissioner for further proceedings.

PROCEDURAL HISTORY

The Court assumes the reader’s familiarity with the facts and procedural history

in this case, and therefore addresses only those facts and issues which bear directly on

the resolution of the motions presently before the Court.

1 The Court’s Standing Order issued on November 18, 2020, directs that, “in opinions filed pursuant

42 U.S.C. § 405(g), in the United States District Court for the Western District of New York, any

non-government party will be identified and referenced solely by first name and last initial.”

I. Plaintiff's Applications

Plaintiff filed his application for DIB in February 2020, alleging a disability onset

date of March 1, 2018. Administrative Record (“AR”), 359,2 ECF No. 3. The alleged onset

date was later amended to January 1, 2019. AR at 1138. In his application, Plaintiff

identified multiple mental and physical conditions that he claimed limited his ability to

work, including: depression, anxiety, social anxiety, motorcycle accident injuries, left leg

injury, thyroid removed, colitis, polyps, and irritable bowel syndrome. AR at 412. In July

2020, the Commissioner found that Plaintiff was “not disabled,” and his claim for DIB

was denied. AR at 85-96. Plaintiff requested a reconsideration of the initial

determination, and in October 2020 was again found “not disabled.” AR at 97-109.

After the Commissioner denied his application at the initial level and on

reconsideration, Plaintiff appeared with counsel via telephone on July 27, 2021 for a

hearing before an Administrative Law Judge (“ALJ”). AR at 113. On August 4, 2021,

the ALJ issued a decision finding that Plaintiff was not disabled, and not entitled to

DIB. AR at 110—22. In September 2022, the Commissioner’s Appeals Council found that

the ALJ failed to admit relevant evidence into the record, and remanded the matter to

the ALJ for receipt and consideration of the evidence. AR at 129—80.

II. Plaintiffs Second Hearing, and the ALJ’s Second Decision

After the Appeals Council remanded the matter, Plaintiff appeared with counsel

via telephone on February 28, 2023 for another hearing before the ALJ. AR at 39. At the

2 The page references from the transcripts are to the bates numbers inserted by the Commissioner, not

the pagination assigned by the Court’s CM/ECF electronic filing system.

hearing, the ALJ heard testimony from Plaintiff; medical expert Ashock Jilhewar, M.D.,

a board certified internist and gastroenterologist; medical expert Sharon Kahn, Ph.D.,

a psychologist; and vocational expert Diane Durr (the “VE”), a certified rehabilitation

counselor. AR at 37—79.

On July 14, 2023, the ALJ issued a decision finding that Plaintiff was not

disabled, and therefore did not qualify for DIB. AR at 30.

At the outset, the ALJ found that Plaintiff met the insured status requirements

for DIB? through December 31, 2024. AR at 19. With respect to whether he engaged in

substantial gainful activity, the ALJ indicated that there was some evidence that

Plaintiff had engaged in work activity since his alleged onset date, but that 1t was not

necessary to determine whether the work constituted substantial gainful activity

because there were other grounds for denying Plaintiffs application. AR at 19-20.

Then, at step two of the Commissioner’s “five-step, sequential evaluation

process,” 4 the ALJ determined that Plaintiff had several severe impairments:

3 Claimants must meet the insured status requirements of the Social Security Act to be eligible for DIB.

See 42 U.S.C. § 423(c); 20 CLF.R. § 404.130.

4 In addition to the insured status requirements for DIB benefits, the Social Security Administration has

outlined a “five-step, sequential evaluation process” that an ALJ must follow to determine whether a

claimant has a “disability” under the law:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether

the claimant has a severe impairment or combination of impairments; (3) whether the

impairment meets or equals the severity of the specified impairments in the Listing of

Impairments; (4) based on a “residual functional capacity” assessment, whether the

claimant can perform any of his or her past relevant work despite the impairment; and

(5) whether there are significant numbers of jobs in the national economy that the

claimant can perform given the claimant’s residual functional capacity, age, education,

and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014); citing, inter alia, 20 C.FLR. § 404.1520(a) □□□□□□

§ 416.920(a)(4)G)-(v)). The claimant bears the burden of proof for the first four steps of the process. 42

U.S.C. § 423(d)(5)(A); Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). At step five, the burden shifts to

hypothyroidism, irritable bowel syndrome, gastroesophageal reflux disease (“GERD”),

major depressive disorder, and generalized anxiety disorder. AR at 20. She found that

Plaintiffs status-post ankle fracture and left leg injury from 2016 were non-severe, but

noted that she fully accounted for Plaintiffs alleged symptoms by limiting him to an

RFC at sedentary exertion. AR at 20.

At step three, the ALJ found that Plaintiff did not have an impairment or

combination of impairments that met or medically equaled the severity of one of the

listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). AR at

21-23. In making this assessment, the ALJ considered Listing 5.06 for inflammatory

bowel disease, and multiple listings for Plaintiffs thyroid gland disorder, including

Listings in 4.00 (cardiac dysfunction), 5.00 (weight loss), 9.00 (endocrine disorders),

11.00 (cerebrovascular accidents), and 12.00 (cognitive limitations). Additionally, the

ALJ performed the “special technique” outlined in 20 C.F.R. § 404.1520a to assess

whether Plaintiffs mental impairments satisfied the criteria for a depressive disorder

(Listing 12.04), or an anxiety disorder (Listing 12.06). AR at 21-22. However, after

evaluating the four areas of mental functioning identified in 20 C.F.R. § 404.1520a(c)

(i.e., the “paragraph B” criteria), ALJ found that Plaintiff had no limitation in

understanding, remembering, or applying information; moderate limitation interacting

with others; moderate limitation concentrating, persisting, or maintaining pace; and

mild limitation adapting or managing himself. AR at 22. Therefore, the ALJ found that

the Commissioner to demonstrate that there is other work in the national economy that the claimant can

perform. Poupore v. Astrue, 566 F.3d 308, 306 (2d Cir. 2009).

Plaintiffs mental impairments did not satisfy any of the listings.

Then, before proceeding to step four, the ALJ determined that Plaintiff had the

residual functional capacity (“RFC”)® to perform sedentary work as defined in 20 C.F.R.

§ 404.1567(a), except for the following restrictions:

[Plaintiffs] work is limited to simple routine tasks in a low stress job,

defined as having only occasional decision making and only occasional

changes in the work setting; only occasional interaction with the public;

only occasional interaction with co-workers; work with no strict production

quotas or strict deadlines; work with no fast-paced work environments.

The individual should never climb ladders, ropes, scaffolds, and never

crawl.

AR at 23-29.

At step four, based on Plaintiffs age, education, work experience, and RFC, as

well as the testimony of the VE, the ALJ found that Plaintiff was not capable of

performing his past relevant work as a production worker or security guard. AR at 29.

Nevertheless, the ALJ found at step five that there were jobs that existed in significant

numbers in the national economy that Plaintiff could perform, namely, an assembler, a

lens inserter, and a sorter. AR at 30. Therefore, the ALJ found that Plaintiff was not

disabled, and not entitled to DIB. AR at 30.

On May 3, 2024, the Appeals Council denied Plaintiff's request to review the

ALJ’s decision. AR at 1-6. The ALJ’s decision thus became the “final decision” of the

Commissioner. See Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996) (citing 20 C.F.R.

§ 404.981) C[I]f the Appeals Council denies review, the ALJ’s decision becomes the

[Commissioner]’s final decision.”).

5 “Residual functional capacity” means the most that the claimant can still do in a work setting despite

the limitations caused by the claimant’s impairments. 20 C.F.R. § 404.1545.

LEGAL STANDARD

Under 42 U.S.C. § 423(d), a claimant is disabled and entitled to DIB if he or she

is unable “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 has lasted or can be expected to last for a continuous period of not less than 12

months.”

Where an individual’s application for DIB has been denied, 42 U.S.C. § 405(g)

defines the process and scope of judicial review of the Commissioner’s final decision. The

fourth sentence of § 405(g) authorizes the reviewing court to enter “a judgment

affirming, modifying, or reversing the decision of the Commissioner . . . with or without

remanding the cause for a rehearing.” The sixth sentence authorizes the reviewing court

to “order additional evidence to be taken before the Commissioner . . . 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.” Tirado v. Bowen, 842

F.2d 595, 597 (2d Cir. 1988) (discussing § 405(g)).

“The entire thrust of judicial review under the disability benefits law is to ensure

a just and rational result between the government and a claimant, without substituting

a court’s judgment for that of the [Commissioner], and to reverse an administrative

determination only when it does not rest on adequate findings sustained by evidence

having rational probative force.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)

(internal citation and quotation marks omitted). Therefore, it is not the reviewing

court’s function to determine de novo whether the claimant is disabled. Brault v. Soc.

Sec. Admin., Comm’, 683 F.3d 443, 447 (2d Cir. 2012). Rather, the reviewing court must

first determine “whether the Commissioner applied the correct legal standard[s].”

Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). Provided the correct legal standards

are applied, the district court’s review is deferential: a finding by the Commissioner is

“conclusive” if it is supported by “substantial evidence.” 42 U.S.C. § 405(g).

“Whatever the meaning of ‘substantial’ in other contexts, the threshold for such

evidentiary sufficiency is not high.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (noting

that the phrase “substantial evidence” is a term of art used in reviewing administrative

agency decisions to signify evidence that amounts to “more than a mere scintilla”). Thus,

once an ALJ finds facts, a reviewing court can reject those facts “only if a reasonable

factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448. Yet, although

“the evidentiary threshold for the substantial evidence standard is not high, .. . [it] is

also not merely hortatory: [i]t requires relevant evidence which would lead a reasonable

mind to concur in the ALJ’s factual determinations.” Colgan v. Kijakazi, 22 F.4th 3538,

359 (2d Cir. 2022) (internal quotation marks omitted).

DISCUSSION

Plaintiffs sole challenge to the ALJ’s decision is to the ALJ’s evaluation of the

medical opinion of Plaintiffs treating psychologist, Amita Marks, Ph.D. Plaintiff argues

that the ALJ failed to properly evaluate Dr. Marks’s opinion, and rejected it based on

cherry-picked and mischaracterized evidence.

The record contains notes from Plaintiffs treatment with Dr. Marks between

June 2021 and January 2023. AR 1179-1278. On January 20, 2023, Dr. Marks

completed a “Treating Medical Source Statement” that indicated, among other things,

that Plaintiff had functional limitations in the areas of understanding, memory, and

sustained concentration that would preclude Plaintiffs work for more than 20% of the

workday, and functional limitations in the areas of “social interaction” and “adaptation”

that would preclude performance of all work in a regular work setting. AR at 1283-84.

She estimated that Plaintiff's impairments would cause him to be off-task more than

30% of the workday. AR at 1284.

The ALJ evaluated Dr. Marks’ opinion as follows:

Although Dr. Marks is a treatment provider, this opinion is unpersuasive

as it is inconsistent with her own findings of generally unremarkable

mental status examinations despite depressed mood, and no medications

until September 2022 at [AR at 1244, 1252, 1257, 1263, 1268, 1276].

Significantly, Dr. Marks noted in her own session notes, in November 2022,

that the claimant reported improvement on medication (Effexor), which

does not support the extreme limitations [in her opinion; citing AR at

1264]. Additionally, Dr. Marks does not have knowledge of Social Security

disability programs, evidentiary requirements, or listing criteria.

Moreover, the opinion is inconsistent with the testimony of Dr. Kahn,

whose opinion is more persuasive. Therefore, the specific limitations have

not been adopted.

AR at 27.

I. Legal Principles

Regulations effective for all claims filed after March 27, 2017 provide that 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 [the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a). See also, e.g.,

Spottswood v. Kijakazi, No. 23-54-CV, 2024 WL 89635, at *3 (2d Cir. Jan. 9, 2024)

(noting that under 20 C.F.R. § 404.1520c, the ALJ “owes no special deference to any

particular medical opinion in the record”). Rather, the regulations direct that the ALJ

will evaluate the “persuasiveness” of all opinions and prior administrative medical

findings in the record by assessing multiple factors, including supportability,

consistency, the length and nature of the relationship of the source with the claimant,

the source’s specialization, and “other factors” that tend to support or contradict a

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

Of these factors, supportability and consistency are the most important. 20 C.F.R.

§ 404.1520c(b)(2). Therefore, while the ALJ need not explain in her decision how she

considered all of the factors, she must explain how she “considered the supportability

and consistency factors for a medical source’s medical opinions or prior administrative

medical findings... 20 C.F.R. § 404.1520c(b)(2). Supportability refers to how “the

objective medical evidence and supporting explanations presented by a medical source .

.. support [the medical source’s] opinion(s) or prior administrative medical finding(s).”

20 C.F.R. § 404.1520c(c)(1). Consistency refers to how similar “a medical opinion(s) or

prior administrative medical finding(s) is with the evidence” in the record. 20 C.F.R. §

404.1520c(c)(2).

II. The ALJ’s Evaluation of Dr. Marks’s Opinion

The Court agrees with Plaintiffs observation that the ALJ’s supportability

analysis of Dr. Marks’ opinion is inaccurate. The ALJ stated that Dr. Marks’s opinion is

“inconsistent with her own findings of generally unremarkable mental status

examinations despite depressed mood... .” AR at 27 (citing AR at 1244, 1252, 1257,

1263, 1268, 1276). In fact, however, none of the mental status examinations cited by the

ALJ were actually from Dr. Marks’s notes. Rather, they were examinations performed

by Psychiatric Mental Health Nurse Practitioner (““PMHNP”)® Jami Liebner, who saw

Plaintiff for medication management. See, e.g., AR at 1268 (making the decision to

“Tcjontinue Effexor at current dose”). In other words, the ALJ’s evaluation did not

address “objective medical evidence ... presented by a medical source .. . [to] support

[the medical source’s] opinion(s) .. .” as required by 20 C.F.R. § 404.1520c(c)(1); the

ALJ’s “supportability” analysis speaks instead to the “consistency” factor.

As noted above, the regulations make clear that the ALJ’s decision must explain

how the ALJ considered both the supportability and consistency factors for each medical

source in the record. 20 C.F.R. 404.1520c(b)(2). Thus, an ALJ’s failure to adequately

explain how she considered these two factors for any medical source is procedural error.

See Loucks v. Kijakazt, No. 21-1749, 2022 WL 21892938, at *2 (2d Cir. June 17, 2022).

A procedural error is harmless if “‘a searching review of the record’ assures [the

court] ‘that the substance of the [regulation] was not traversed.” Id. (quoting Estrella v.

Berryhill, 925 F.3d 90, 96 (2d Cir. 2019); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.

2004)). Indeed, courts in this district have found that “typographical errors — even ones

misattributing the opinion of a treating source provider — may, under certain

circumstances, be harmless.” Rhiannon W. v. Comm’ of Soc. Sec., No. 21-CV-6333MWP,

2023 WL 6118267, at *5 (W.D.N.Y. Sept. 19, 2023) (citing Ortiz v. Colvin, 298 F. Supp.

3d 581, 591 (W.D.N.Y. 2018)). Nevertheless, remand is appropriate where the court is

6 According to the Cleveland Clinic, “a psychiatric mental health nurse practitioner (PMHNP) is a

healthcare provider who cares for people with mental health conditions and substance use disorders. Also

called psychiatric nurse practitioners, these healthcare providers can prescribe medication, provide

therapy, and diagnose and treat a wide range of mental health conditions.” PMHNP, CLEVELAND CLINIC,

httpsy//my.cevelandclmic org/health/articles/psychiatric-rurse-practitioner-pmhmp (last accessed September 23, 2025).

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“unable to fathom the ALJ’s rationale in relation to the evidence in the record” without

“further findings or clearer explanation for the decision.” Pratts v. Chater, 94 F.3d 34,

39 (2d Cir. 1996) (quoting Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982)).

The Court finds that under the circumstances in the present case, the ALJ’s

attribution of PMHNP Liebner’s mental status examinations to Dr. Marks is not

harmless error. Dr. Marks’s opinion that Plaintiff had work-preclusive functional

limitations caused by his “extreme social anxiety,” if persuasive, would have a decided

effect on the ALJ’s decision as to whether Plaintiffis disabled and entitled to DIB. Yet

because the ALJ misattributed PMHNP Liebner’s examinations to Dr. Marks, the Court

has no means to determine with any certainty the outcome of the ALJ’s supportability

analysis. See Rhiannon W., 2023 WL 6118267, at *5 (quoting, inter alia, Maria J. v.

Comm’ of Soc. Sec., 2020 WL 7296751, *5 (W.D.N.Y. 2020) (“it is impossible for this

[clourt to determine whether the ALJ would have weighed the opinion evidence in the

same manner if she had appreciated that [plaintiffs treating osteopathic physician] —

not [plaintiffs treating neurologist] — authored the . . . light duty note[;] [nJor can I

discern whether the ALJ would have reached the same RFC determination had she not

made this misidentification”).

Notwithstanding Plaintiffs claims that the ALJ was “cherry-picking” the

evidence to reach her desired outcome, the Court’s finding of harmful procedural error

does not suggest the propriety of a particular outcome on remand. Rhiannon W., 2023

WL 6118267, at *5 (quoting Karen D. R. v. Kyakazi, 2023 WL 5009251, *8-9 (E.D. Va.

2023) (“ijt may be that on remand the ALJ will make a similar assessment of [the

11

treating provider’s] opinion[,] ... [b]ut the court cannot supply that assessment in the

first instance, and therefore remand is required”), report and recommendation adopted

by, 2023 WL 5004034 (E.D. Va. 2023)). As the Commissioner points out, “what a

claimant may label as cherry-picking can often be described more neutrally as weighing

the evidence.” ECF No. 9-1 at 12 (quoting Karin D. v. Comm’ of Soc. Sec., No. 6:20-CV-

1158-CJS, 2022 WL 3355253, at *7 (W.D.N.Y. Aug. 15, 2022). The ALJ’s misattribution

in the present case prevents a determination as to which description is most fitting here.

What is clear, however, is that the matter must be remanded for a re-evaluation of Dr.

Marks’s opinion under 20 C.F.R. § 404.1520c.

CONCLUSION

For the reasons discussed above, Plaintiff Michael C.’s motion for judgment on

the pleadings [ECF No. 7] is granted to the extent that the matter is remanded to the

Commissioner for further proceedings pursuant to the fourth sentence of 42 U.S.C.

§ 405(g), and the Commissioner’s motion for judgment on the pleadings [ECF No. 9] is

denied.

SO ORDERED.

DATED: September 26, 2025

Rochester, New York Jf

TION. MEREDITH A. VACCA

United States District Judge

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