Adams

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_______________________________________

JAMIE A.,1

Plaintiff DECISION and ORDER

-vs-

6:24-CV-6684-CJS

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

________________________________________

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. § 405(g) to review a final

determination of the Commissioner of Social Security (“Commissioner” or “Defendant”)

denying Plaintiff’s application for Supplemental Security Income (“SSI”) benefits. Now

before the Court is Plaintiff’s application for judgment on the pleadings (ECF No. 10),

seeking remand solely for calculation of benefits, and Defendant’s cross-motion for

judgment on the pleadings (ECF No. 17). For reasons discussed below, Plaintiff’s

application for judgment on the pleadings is granted, to the extent that the matter is

remanded for further administrative proceedings. Plaintiff’s request for remand solely for

calculation of benefits is denied. Defendant’s cross-motion is denied.

1 The Court’s Standing Order issued on November 18, 2020, indicates in pertinent part that, “[e]ffective

immediately, in opinions filed pursuant to Section 205(g) of the Social Security Act, 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.”

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STANDARDS OF LAW

The Commissioner decides applications for disability benefits using a five-step

sequential evaluation process:

A five-step sequential analysis is used to evaluate disability claims. See 20

C.F.R. §§ 404.1520, 416.920. First, the Commissioner considers whether the

claimant is currently engaged in substantial gainful activity. If he is not, the

Commissioner next considers whether the claimant has a severe impairment2

which significantly limits his physical or mental ability to do basic work

activities.3 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 the regulations [or medically equals a listed impairment].

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

whether, despite the claimant’s severe impairment, he has the residual

functional capacity [(“RFC”)] to perform his past work.4 Finally, if the claimant

is unable to perform his past work, the Commissioner then determines whether

there is other work which the claimant could perform. The claimant bears the

burden of proof as to the first four steps, while the Commissioner bears the

burden at step five.5

2 “At step two, the ALJ must determine whether the claimant has a ‘severe medically determinable physical

or mental impairment that meets the duration requirement in [20 C.F.R.] § 404.1509, or a combination of

impairments that is severe and meets the duration requirement.’ Id. If not, the claimant is deemed not

disabled, and the inquiry ends.” Koch v. Colvin, 570 F. App'x 99, 101 (2d Cir. 2014); see also, 20 C.F.R. §

404.1520(a)(4)(ii) (“At the second step, we consider the medical severity of your impairment(s). If you do not

have a severe medically determinable physical or mental impairment that meets the duration requirement in

§ 404.1509, or a combination of impairments that is severe and meets the duration requirement, we will find

that you are not disabled.”).

3 The Commissioner’s Regulations define basic work-related activities as follows: “Basic work activities.

When we talk about basic work activities, we mean the abilities and aptitudes necessary to do most jobs.

Examples of these include— (1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling,

reaching, carrying, or handling; (2) Capacities for seeing, hearing, and speaking; (3) Understanding, carrying

out, and remembering simple instructions; (4) Use of judgment; (5) Responding appropriately to supervision,

co-workers and usual work situations; and (6) Dealing with changes in a routine work setting.” 20 C.F.R. §

404.1522 (West 2023).

4 Residual functional capacity “is what the claimant can still do despite the limitations imposed by his

impairment.” Bushey v. Berryhill, 739 F. App'x 668, 670–71 (2d Cir. 2018) (citations omitted); see also, 1996

WL 374184, Titles II & Xvi: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P (S.S.A. July

2, 1996).

5 “The Commissioner’s burden at step five is to show the existence of possible employment for an individual

with the RFC determined by the ALJ in the fourth step of the sequential analysis.” Smith v. Berryhill, 740 F.

2

Colvin v. Berryhill, 734 F. App'x 756, 758 (2d Cir. 2018) (citations and internal quotation

marks omitted).

An unsuccessful claimant may bring an action in federal district court to challenge the

Commissioner’s denial of the disability claim, in which “[t]he court shall have power to enter,

upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing

the decision of the Commissioner of Social Security, with or without remanding the cause

for a rehearing.” 42 U.S.C.A. § 405(g) (West).

The issue to be determined by the court in such an action is whether the

Commissioner’s conclusions “are supported by substantial evidence in the record as a whole

or are based on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.

1998); see also, Barnaby v. Berryhill, 773 F. App'x 642, 643 (2d Cir. 2019) (“[We] will uphold

the decision if it is supported by substantial evidence and the correct legal standards were

applied.”) (citing Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) and Talavera v. Astrue,

697 F.3d 145, 151 (2d Cir. 2012).”).

“First, the [c]ourt reviews the Commissioner's decision to determine whether the

Commissioner applied the correct legal standard.” Tejada v. Apfel, 167 F.3d 770, 773 (2d

Cir. 1999); see also, Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (“[W]here an error

App'x 721, 726–27 (2d Cir. 2018) (citation omitted). The ALJ typically does this either by resorting to the

medical vocational “grids” or, where the claimant has a non-exertional impairment, by taking testimony from

a vocational expert [(“VE”)]. See, Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986) (“[T]he mere existence of

a nonexertional impairment does not automatically require the production of a vocational expert nor preclude

reliance on the guidelines. A more appropriate approach is that when a claimant's nonexertional impairments

significantly diminish his ability to work—over and above any incapacity caused solely from exertional

limitations—so that he is unable to perform the full range of employment indicated by the medical vocational

guidelines, then the Secretary must introduce the testimony of a vocational expert (or other similar evidence)

that jobs exist in the economy which claimant can obtain and perform.”).

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of law has been made that might have affected the disposition of the case, this court cannot

fulfill its statutory and constitutional duty to review the decision of the administrative agency

by simply deferring to the factual findings of the [administrative law judge] [(“]ALJ[)”]. Failure

to apply the correct legal standards is grounds for reversal.”) (citation omitted).

If the Commissioner applied the correct legal standards, the court next “examines the

record to determine if the Commissioner's conclusions are supported by substantial

evidence.” Tejada v. Apfel, 167 F.3d at 773; see also, 42 U.S.C.A. § 405(g) (“The findings

of the Commissioner of Social Security as to any fact, if supported by substantial evidence,

shall be conclusive.”). Substantial evidence is defined as “more than a mere scintilla. It

means such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.” Tejada v. Apfel, 167 F.3d at 773 (citation omitted).

The substantial evidence standard is a very deferential standard of review—

even more so than the ‘clearly erroneous’ standard, and the Commissioner’s

findings of fact must be upheld unless a reasonable factfinder would have to

conclude otherwise.” Brault v. Social Sec. Admin., Comm’r, 683 F.3d 443, 448

(2d Cir. 2012) (per curiam) (emphasis in original). “An ALJ is not required to

discuss every piece of evidence submitted, and the failure to cite specific

evidence does not indicate that such evidence was not considered.” Id.

Banyai v. Berryhill, 767 F. App'x 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019)

(internal quotation marks omitted); see also, Snyder v. Comm'r of Soc. Sec., No. 22-277-

CV, 2023 WL 1943108, at *1 (2d Cir. Feb. 13, 2023) (“While the substantial evidence

standard requires we find more than a mere scintilla of support for the Commissioner's

decision, it is still a very deferential standard of review requiring us to uphold the

Commissioner's findings unless a reasonable factfinder would have to conclude otherwise.”)

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(emphasis in original; citations and internal quotation marks omitted); Schillo v. Kijakazi, 31

F.4th 64, 69 (2d Cir. 2022) (“We may vacate the agency's disability determination only if it is

based on legal error or unsupported by ‘substantial evidence’—that is, if no reasonable

factfinder could have reached the same conclusion as the ALJ.”); Lisette R. o/b/o C.J.O. v.

Kijakazi, No. 3:22-CV-00784-TOF, 2023 WL 6357961, at *3 (D. Conn. Sept. 29, 2023) (“A

disability determination is supported by substantial evidence if a “reasonable mind” could

look at the record and make the same determination as the Commissioner. When the

decision is supported by substantial evidence, the Court defers to the Commissioner's

judgment.”) (citations omitted).

In applying this standard, a court is not permitted to re-weigh the evidence. See, Krull

v. Colvin, 669 F. App'x 31, 32 (2d Cir. 2016) (“Krull's disagreement is with the ALJ's weighing

of the evidence, but the deferential standard of review prevents us from reweighing it.”); see

also, Riordan v. Barnhart, No. 06 CIV 4773 AKH, 2007 WL 1406649, at *4 (S.D.N.Y. May 8,

2007) (“The court does not engage in a de novo determination of whether or not the claimant

is disabled, but instead determines whether correct legal standards were applied and

whether substantial evidence supports the decision of the Commissioner.”) (citations

omitted). “Even where the administrative record may also adequately support contrary

findings on particular issues, the ALJ's factual findings must be given conclusive effect so

long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d

Cir. 2010) (internal quotation marks omitted). “In other words, this Court must afford the

Commissioner's determination considerable deference, and ‘may not substitute its own

judgment for that of the [Commissioner], even if it might justifiably have reached a different

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result upon a de novo review.’” Melia v. Colvin, No. 1:14-CV-00226 MAD, 2015 WL 4041742,

at *2 (N.D.N.Y. July 1, 2015) (quoting Valente v. Sec'y of Health & Human Servs., 733 F.2d

1037, 1041 (2d Cir.1984)).

When considering whether a particular finding or decision is supported by substantial

evidence, a court also may not rely on any post hoc rationalizations offered by the

Commissioner. However, a court may consider evidence that was evidently considered by

the Administrative Law Judge (“ALJ") even if it was not expressly mentioned in the

administrative decision. See, Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)

(“When, as here, the evidence of record permits us to glean the rationale of an ALJ's

decision, we do not require that he have mentioned every item of testimony presented to

him or have explained why he considered particular evidence unpersuasive or insufficient to

lead him to a conclusion of disability. E.g., Berry v. Schweiker, 675 F.2d 464, 469 (2d

Cir.1982). In Berry, we noted that, although we would remand for further findings or a clearer

explanation where we could not fathom the ALJ's rationale “in relation to evidence in the

record,” we would not remand where “we were able to look to other portions of the ALJ's

decision and to clearly credible evidence in finding that his determination was supported by

substantial evidence.” Id.[; [s]ee also Miles v. Harris, 645 F.2d 122, 124 (2d Cir.1981)

(“Notwithstanding the apparent inconsistency between the reports of [two doctors], we are

unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony

....”).”); see also, Loni S. v. Comm'r of Soc. Sec., No. 3:22-CV-805 (CFH), 2023 WL 4195887,

at *19 (N.D.N.Y. June 27, 2023) (“The Court is required to look at the entire ALJ's decision

when reviewing for substantial evidence. See John L. M. v. Kijakazi, No. 5:21-CV-368

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(BKS/TWD), 2022 WL 3500187, at *2 (N.D.N.Y. Aug. 18, 2022) (citations omitted) (‘[W]hile

a reviewing court may not affirm the Commissioner's decision based on an impermissible

post-hoc rationalization, it may affirm where the ALJ's consideration of the relevant factors

can be gleaned from the ALJ's decision as a whole.’).”).

FACTUAL and PROCEDURAL BACKGROUND

The reader is presumed to be familiar with the factual and procedural history of this

action. The Court will discuss the facts below only as necessary to address Plaintiff’s

arguments. Briefly, this is the second time that Plaintiff’s claim for benefits has reached

federal district court. The first time, the action was assigned to the Honorable David G.

Larimer, United States District Judge, who reversed the Commissioner’s decision denying

benefits, and remanded the action to the Commissioner for further administrative

proceedings. See, Jamie A. v. Commissioner, 20-CV-6315L, ECF No. 16.

In particular, Judge Larimer found that the ALJ in that administrative proceeding, Paul

D. Barker, Jr. (“ALJ Barker”), had not properly applied the “treating physician rule” when

deciding to give only minimal weight to medical opinions from two of Plaintiff’s primary care

physicians, John Alves, M.D. (“Alves”) and Heather Underhill, D.O. (“Underhill”). Judge

Larimer wrote, in pertinent part:

Dr. Alves issued an initial opinion in September 2013, followed by a series of

virtually identical opinions in October 2013, March 2014, October 2014,

September 2016, and February 2017. Dr. Underhill authored two substantially

similar opinions in September 2015 and February 2016. Dr. Alves and Dr.

Underhill both indicated that plaintiff’s fibromyalgia and polyarthritis, and the

associated “pain and inflammation in her hands and her lower limbs,” caused

her to be “moderately limited” in walking, standing, using her hands, sustaining

attention and concentration, and working at a consistent pace, and “very

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limited” in lifting, carrying, pushing, pulling, bending, and climbing. (Dkt. #8-7

at 356-37, 358-59, 360-61, 364-65, 366-67, 371-72, 374-74; Dkt. #8-8 at 419-

20). On September 27, 2013, Dr. Alves wrote a brief note indicating that

plaintiff’s “Fibromyalgia and Rheumatoid Arthritis mak[e] it difficult to

accomplish many jobs requiring constant walking, standing, or lifting.

Employment requiring limited movement or sitting is recommended for her.”

(Dkt. #8-7 at 375.)

In two additional, lengthier opinions cosigned by Dr. Alves in July 2013 and

July 2014, he stated that due to widespread “severe, daily” pain, muscle

weakness, and a host of other symptoms, plaintiff cannot walk for more than

1 city block without pain, can sit for up to 15 minutes at a time for up to 4 hours

in an 8-hour workday, can stand for up to 10 minutes at a time for less than 2

hours in an 8-hour workday, can occasionally lift 10 pounds and never lift 20

pounds, can rarely twist or climb stairs, can never stoop or crouch or climb

ladders, requires the ability to change positions at will, must take frequent

breaks throughout the day, cannot grasp with her hands or reach forward or

overhead for more than 5% of the day, cannot perform fine finger

manipulations for more than 50% of the day, and is likely to be off-task for

more than 25% of the day and miss more than four days of work per month

due to symptoms. (Dkt. #8-9 at 568-76).

The ALJ gave “minimal” weight to each of these eleven opinions, finding that

although they were rendered by treating physicians, the extent of the opined

limitations was inconsistent with certain objective findings in plaintiff’s

treatment notes and in Dr. Murgano’s [consultative internal medicine] report,

which indicated normal gait and strength. (Dkt. #8-2 at 22).

***

Here, the ALJ’s decision to give only minimal weight to the opinions of Dr.

Alves and Dr. Underhill was not sufficiently supported. Initially, the ALJ cited

to just three references in treatment notes by Dr. Alves and Dr. Underhill in

which normal strength or gait was observed. It does not appear that plaintiff’s

strength, gait or dexterity were regularly measured by either physician, and the

appearance of three sporadic findings over a course of treatment spanning

several years does not lend overwhelming support to the ALJ’s conclusion that

“the examination notes of Dr. Alves and Dr. Underhill do not support their

opinions.” (Dkt. #8-2 at 25). Furthermore, to the extent that the ALJ “sense[d]

that Dr. [Alves’s or Dr. Underhill’s RFC] reports may . . . [have been] in tension

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with [treatment] notes summarizing plaintiff’s strength, mobility, and gait,” the

ALJ was obligated to seek clarification from those physicians, rather than

simply rejecting their opinions nearly in toto. Cahill v. Colvin, 2014 U.S. Dist.

ELXIS 178724 at *49-*50 (S.D.N.Y. 2014).

The ALJ’s cavalier rejection of Dr. Alves’s and Dr. Underhill’s opinions as

“inconsistent” with the medical evidence is particularly conspicuous, given that

those opinions were largely consistent with all of the other exertional RFC

opinions of record. Primary care physician Dr. Jessie Atkins, consulting

examiner Dr. Magurno, and reviewing state agency medical consultant Dr. R.

Reynolds, all opined that plaintiff had moderate or marked limitations in

walking, sitting, standing, and engaging in certain postural functions. (Dkt. #8-

9 at 548-52, 560-61, 615-16). Each was given no more than “partial” weight by

the ALJ, based upon their alleged inconsistency with the same few

observations of normal gait and strength the ALJ used to reject Dr. Alves’s and

Dr. Underhill’s opinions.

In sum, the ALJ rejected the bulk of the exertional limitations that were

consistently opined by each and every one of the treating, examining and

reviewing physicians of record, citing only to scant objective findings that the

ALJ interpreted as contradictory. “While the ALJ is not obligated to ‘reconcile

explicitly every conflicting shred of medical testimony,’ [the ALJ] cannot simply

selectively choose evidence in the record that supports his conclusions.”

Gecevic v. Secretary of Health & Human Servs., 882 F. Supp. 278, 286

(E.D.N.Y.1995) (quoting Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir.1983)).

By rejecting the opinions of every medical source on the basis of a

suspiciously-recurrent “inconsistency” with a few objective findings, without

contacting any of those sources to determine whether there was a medical

basis to explain the discrepancy, I find that the ALJ improperly substituted his

“own expertise or view of the medical proof [in place of] any competent medical

opinion.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir.

2015).

Jamie A. v. Commissioner, 20-CV-6315L, ECF No. 16 (emphasis added).6 Judge Larimer

6 The undersigned has independently reviewed ALJ Barker’s decision and notes, for reasons that will be

discussed further below, that the decision does not indicate, either expressly or impliedly, that ALJ Barker

believed Plaintiff had attempted to mislead the doctors from whom she had requested evaluations in support

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concluded by stating:

On remand, the ALJ should reassess the evidence of record, contacting

medical sources for clarification or soliciting additional consulting opinions

where appropriate, and should render a new decision which reassess plaintiff’s

severe impairments and the limitations posed thereby, provides a detailed

explanation of the evidence of record supporting the ALJ’s findings, identifies

the weight given to each medial opinion of record, applies the treating

physician rule, and explains the reasons that specific opined limitations are

adopted or rejected.

Id. at 9-10.

Upon remand to the Commissioner, the matter was assigned to a new ALJ, Kenneth

Theurer (“ALJ Theurer” or “the ALJ”), and consolidated with another claim for benefits by

Plaintiff. Tr. 1078. On September 21, 2022, and January 27, 2023, the ALJ conducted a

new hearing, upon a significantly expanded medical record. The ALJ also took testimony

from two impartial medical experts, Gerald Koocher, Ph.D. (“Koocher”) and Joseph Gaeta,

M.D. (“Gaeta”), each of whom indicated that he had reviewed the entire medical file. The

ALJ also took testimony from a vocational expert.

At the hearing, Plaintiff essentially testified that she was completely housebound,

leaving her house only with her boyfriend, because she was fearful of being attacked by

strangers, and that she was essentially completely unable to do most physical activities due

to constant physical pain, for which medication did not give her relief. Plaintiff further

indicated that her boyfriend was her primary caretaker. Plaintiff testified that her boyfriend

lived in Brooklyn, but visited her often. Plaintiff, who was then 31 years of age, admitted

of her disability claim. Rather, as Judge Larimer noted, ALJ Barker gave only little weight to the opinions of

Plaintiff’s treating doctors primarily because he found that such opinions were inconsistent with certain

normal objective findings relating to Plaintiff’s strength and gait.

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that she had never held a full-time job in her life, which, she indicated, was due to a “lot of

reasons,” including that she had always had anxiety about being in crowds of people. Tr.

1093-1094.

Medical expert Dr. Gaeta testified at the hearing, that, despite Plaintiff’s physical

limitations, she could perform less than a full range of light work:

I think generally a light level restrictions. I guess she could sit for six hours

during the course of the day, stand, and/or walk six hours and in the course of

the day I think she could occasionally lift, pull, push, carry 20 pounds,

frequently ten pounds.

I think she should not climb ladder or scaffolds, but she could do all the other

postural elements on a frequent basis except for crawling, which she should

not do. I don't see any environmental limitations.

There [is] maybe a question with regarding her hands. I mean she

occasionally has problems there so I would limit her, you know, use

of hands, primarily for fine type of maneuvers to, you know, frequent

rather than, you know, no restriction at all. Should avoid unprotected heights,

and dangerous machinery, and I think that would

summarize it.

Tr. 1046-1047. Gaeta testified that he had reviewed the other medical opinions in the file,

and, to the extent they referenced greater limitations, felt they were not well supported with

actual findings, which caused him to wonder whether they were instead based merely on

Plaintiff’s reported symptoms. Tr. 1047. In that regard, Gaeta acknowledged that

fibromyalgia, which Gaeta felt was Plaintiff’s primary problem, was generally not an illness

that was supported by objective findings. Tr. 1048. Gaeta further indicated that he did not

believe the examination results supported Plaintiff’s assertion that her pain symptoms had

worsened over time. Tr. 1050-1051.

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Psychologist Dr. Koocher also testified at the hearing, and indicated that under the

paragraph B criteria, Plaintiff had only mild-to-moderate impairments, at most. Tr. 1055.

Koocher indicated, for example, that he did not see evidence to support Plaintiff’s claim that

she was essentially housebound due to her mental impairments. See, Tr. 1060-1061 (“Now,

obviously if the claimant is having frequent panic attacks or frequent depressive symptoms

that would make it difficult for her to get out of the house or go to work, those would be very

important factors to consider. But I don't see documentation of any of that in the record.”).

Koocher further saw no evidence that Plaintiff was limited in her ability to interact with other

people. Tr. 1061. Koocher also testified that despite references to a PTSD diagnosis in

certain treatment notes, he did not think that an actual PTSD diagnosis had ever been made,

or could be made, based on the information in the record. Tr. 1064-1065. Koocher further

testified that, despite her mild-to-moderate impairments, Plaintiff could perform unskilled

work. Tr. 1061.

On February 9, 2023, the ALJ issued a decision finding that Plaintiff was not disabled

at any relevant time. The ALJ’s broad findings under the five-step sequential evaluation

are summarized in Defendant’s memorandum of law, to which description Plaintiff has not

objected, as follows:

At step one of the sequential evaluation, the ALJ determined that Plaintiff had

not engaged in substantial gainful activity since her October 27, 2015 SSI

application date. Tr. 1013. At step two, the ALJ found that Plaintiff had the

following severe impairments: fibromyalgia; anxiety disorder; depressive

disorder; and post-traumatic stress disorder. Tr. 1013. At step three, the ALJ

concluded that none of Plaintiff’s impairments met or medically equaled one of

the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 1014-

16.

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The ALJ further concluded that Plaintiff had the RFC to perform a range of light

exertional work as defined in 20 C.F.R. § 416.967(b), with additional

nonexertional and mental limitations. Tr. 1016-17. At step four, the ALJ

determined that Plaintiff had no past relevant work. Tr. 1023. The ALJ went to

make a step five finding that given Plaintiff’s age, education, work experience,

and RFC, there were jobs available in the national economy that she was

capable of performing. Tr. 1023-24. Accordingly, Plaintiff was not disabled

within the meaning of the Act. Tr. 1024.

Def. Memo of Law, ECF No. 17-1 at CM/ECF pp. 4-5. The ALJ’s actual RFC finding was

as follows:

After careful consideration of the entire record, I find that the claimant has the

residual functional capacity to perform light work as defined in 20 CFR

416.967(b). She can occasionally lift and carry, push and pull twenty pounds,

frequently lift and carry, or push and pull, ten pounds, sit for up to six hours,

stand or walk for approximately six hours in eight-hour day with normal breaks.

She can occasionally climb ramps or stairs, ladders, ropes or scaffolds, can

occasionally balance stoop, kneel and crouch, but cannot crawl and she can

do fine manipulation, such as handling and fingering, no more than frequently.

The claimant can perform work limited to simple, routine, and repetitive tasks

in a work environment free of fast paced production requirements, involving

only simple, work-related decisions with few, if any, workplace changes, and

no more than occasional interaction with coworkers, supervisors, and the

public.

Tr. 1016-1017.

In explaining his RFC finding, the ALJ began by noting that he had considered the

evidence in accordance with the Commissioner’s regulations, including the treating

physician rule, 20 C.F.R. sec 416.927. Tr. 1017.

The ALJ then summarized Plaintiff’s statements about her symptoms, and indicated

that he found them not entirely consistent with the “medical evidence and other evidence in

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the record.” Tr. 1018. The ALJ summarized Plaintiff’s subjective complaints as follows:

The claimant testified, in September 2022, that her depression and anxiety are

increasing, and her physical health is worsening. She has numbness in the

lower extremities, migraines, falls frequently, and uses a cane, though this

[cane] is not prescribed (2022 Hearing). She has pain and swelling in her

hands, cannot lift more than 5 lb., and cannot stand more than 10 minutes,

and cannot walk more than 2 ½ blocks (2022 Hearing). She is afraid of people,

is housebound, and uses a cane; her boyfriend, who lives in Brooklyn, cares

for her, including doing the household chores, and shopping (2022 Hearing).

Tr. 1017. The ALJ indicated, however, that the evidence overall did not support those

statements. First, regarding physical impairments, the ALJ stated that treatment notes

contained normal findings that did not support Plaintiff’s claim of being in constant pain, such

as notations that Plaintiff appeared to be in no distress, had a normal gait, and was reported

to have “painless range of motion in all major muscle groups and joints.” Tr. 1018. The ALJ

also referenced evidence that he felt indicated Plaintiff had exaggerated her symptoms

during office visits, when seeking to have disability forms completed, such as by bringing a

non-prescribed cane to ambulate. See, e.g., Tr. 1018 (“On September 1, 2022, the claimant

saw her primary care provider to have disability forms completed; on this occasion she

presented with a cane and had reduced strength and reduced sensation. However, when

seen by a new provider [the following day,] on September 2, 2022, a normal gait was

observed, and there is no indication of [the claimant using] an assistive device.”).

Regarding Plaintiff’s mental impairments, the ALJ indicated that he found Plaintiff’s

sincerity in pursuing mental health treatment to be dubious, since, during the first several

years of her alleged period of disability, she expressly linked her attendance at treatment

visits with her intention of obtaining SSI benefits, and, in between stints of mental health

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treatment, denied mental health symptoms:

[T]he claimant sought mental health treatment in January 2014, reporting a

treatment goal of being approved for SSI.7 The claimant was diagnosed with

anxiety and depressive disorders, and participated in treatment for several

months, with a good prognosis, though she stopped taking the prescribed

medications (C7F/13-15). From January 2014 until January 2017, the claimant

consistently denied psychiatric symptoms including anxiety, depression and

sleep problems and mental status examinations were normal, though the

claimant reported insomnia, controlled with Ambien (e.g., C6F/16, 19, C8F/15,

19-20, 25, 34, C28F/28, 88). In January 2017, the claimant again sought

mental health services, telling the intake evaluator that her “lawyer for SSI

recommended she come in "regularly" (C12F/5).

Tr. 1018. The ALJ further noted that while Plaintiff told treatment providers that she could

not leave her house due to PTSD and anxiety, she admitted taking “regular trips to New

York City, by bus, to visit her boyfriend and seek housing in the city.” Tr. 1019.8 The ALJ

also referenced the fact that during a consultative psychiatric evaluation on January 18,

2021, the examiner, who had previously examined Plaintiff, expressed concern that Plaintiff

was malingering, since Plaintiff’s testing performance during that day’s examination was

notably different than what she had displayed at the prior examination, and, that Plaintiff’s

presentation during the later consultative examination was also inconsistent with how

Plaintiff appeared at visits with her treatment provider during the same period. See, Tr. 1019

(“The consultative examiner noted inconsistencies in the examination, compared to prior

7 Plaintiff stated that obtaining SSI benefits was her primary “life goal,” and not just the goal of treatment. Tr.

368. Plaintiff stated that her primary treatment goal was, “Decreasing anxiety and depression so I can be

me again.” Id. When asked to state how she would know if she had achieved her treatment goal, Plaintiff

wrote: “When I feel better most days and get some money in my pocket.” Tr. 369.

8 Of further note, while Plaintiff testified that her boyfriend was her primary caretaker, and that she usually

could not leave her house without him, treatment notes indicate that Plaintiff’s boyfriend was in jail at various

times.

15

consultative examination, and expressed concerns for malingering, and deliberate attempts

to look more impaired than she actually is (C48F/3). The record shows inconsistencies

between the claimant’s reported symptoms and performance on this examination, compared

with an examination by her psychiatric provider 3 days earlier and another 6 weeks later

(C51F/19, 21-22).”).

The ALJ further indicated that he found Plaintiff’s activities of daily living, such as her

ability to travel to New York City by bus, was inconsistent with her reports about her

symptoms. See, Tr. 1019 (“Although the claimant has sometimes reported a fear of leaving

home the claimant has informed care providers of taking regular trips to New York City,

including travel by bus (see, e.g., C33F/42, C36F/8, 9, 46, 57, C51F/44). The claimant has

told care providers that her mood improves noticeably once she is out of the house, and she

does not have panic attacks while she is out, though on another occasion she reported that

she gets panic attacks when she travels (C51F/8, 13).”). The ALJ found that, overall, and

based on the factors just discussed, Plaintiff’s “reports of her activities are not entirely

consistent with disabling restrictions, whether physical or mental.” Tr. 1019.

The ALJ also discussed the medical opinion evidence and how it factored into his

RFC finding. Tr. 1020-1022. Notably, in that regard, the ALJ gave greater weight to the

opinions of the non-examining medical experts who testified at the hearing, and to the

opinions of other non-treating, non-examining consultative physicians, than to the opinions

of Plaintiff’s treating doctors, and especially an opinion from Plaintiff’s primary care

physician, Marta Hernandez-Hermann, M.D. (“Hernandez-Hermann”), after finding that the

treating physicians’ opinions were less consistent with the medical evidence overall.

16

For example, the ALJ found that the opinions of the non-examining medical experts,

Drs. Gaeta and Koocher, were persuasive since they were consistent with the medical

evidence, stating, in pertinent part:

These opinions are afforded substantial weight. Though they did not examine

the claimant, both are familiar with Agency policies and evidentiary

requirements, and both had the opportunity to review the entire record,

including the reports of the consultative examiners, the treatment records of

all providers, and the other opinions rendered in this matter. They both

provided extensive testimony regarding the claimant’s condition, were cross

examined by the claimant’s representative, and both cited to specific findings

in the record that support their opinions. Though I have adopted slightly

different limitations, these assessments are persuasive depictions of the

claimant’s functioning, which reflect both the clinical findings, as well as the

claimant’s reported activities of daily living.

Tr. 1020. The ALJ noted that Gaeta was “a board-certified internist with over 50 years of

practice experience,” and that Koocher was “a psychologist with significant practice

experience, including research on adaptation to chronic illness.” Tr. 1020.

The ALJ found that the opinions of several state agency review consultants,

concerning Plaintiff’s physical limitations, were entitled to only “some weight,” since they

were inconsistent, and since the evaluators had not reviewed the entire medical filed. Tr.

1020 (“[T]hey did not review the whole record, and although the evidence indicates that the

claimant’s physical impairments are not of disabling severity, the record does not support a

finding claimant is completely unrestricted in her functioning.”).

The ALJ found that the opinion of Justine Magurno, M.D. (“Magurno”), who performed

a consultative internal medicine examination, was “afforded less weight,” since it

“consider[ed] impairments that [were] not supported by her examination, or by the medical

17

evidence of record,” and “overstate[d] the claimant’s limitations.” Tr. 1020. In that regard,

Magurno had opined, based on Plaintiff’s reported symptoms, that Plaintiff was primarily

limited by migraine headaches, Tr. 551, which the ALJ found was not a severe impairment.

Magurno otherwise opined that Plaintiff would have only “moderate” limitations from any

physical impairment. In particular, Magurno noted that Plaintiff reported pain at eighteen

out of eighteen possible fibromyalgia “trigger point” locations, but nevertheless opined that,

from the examination overall, Plaintiff would have only “moderate limitations for bending,

lifting, carrying, pushing, and pulling.” Id.

The ALJ found that the opinions of state agency review psychologists concerning

Plaintiff’s mental limitations, generally indicating moderate limitations, were entitled to

substantial weight, since they were generally consistent with each other and the record, as

well as with the testimony of Dr. Koocher. Tr. 1021.

The ALJ found that the opinions of Amanda Slowik, Ph.D. (“Slowik”), who performed

two different consultative psychiatric examinations of Plaintiff, were entitled to “some

weight,” since, insofar as they opined moderate limitations, they were consistent with the

record overall and with the opinions of the agency review physicians. Tr. 1021. However,

the ALJ rejected Slowik’s opinion that Plaintiff would have marked limitation in her ability to

follow complex instructions. Id. The ALJ also gave less weight to the opinion of consultative

examiner Sara Long, Ph.D. (“Long”), who essentially opined that Plaintiff had no mental

impairment, except for a mild limitation in regulating emotion. Id.

Regarding the opinions of Plaintiff’s treating physicians, the ALJ rejected some

outright, as either being clearly based entirely on Plaintiff’s subjective complaints, or as

18

failing to account even for Plaintiff’s moderate limitations. See, e.g., Tr. 1021 (“The opinion

of Avanti Puri, M.D., from September 2, 2022, is also given little weight; this letter was

provided to the claimant the first time Dr. Puri saw her and reflects the claimant’s subjective

report of her history and symptoms, rather than his professional assessment. Nimmy

Simon, M.D., reported that the claimant is moderately limited in her ability to work at a

consistent pace, but found no limitations in other areas, including physical limitations.”).

The primary point of contention in this action, however, involves the ALJ’s

assessment of the treating opinions of Plaintiff’s primary care physicians, Drs. Alves,

Underhill, and Atkins, mentioned earlier in the discussion of Judge Larimer’s decision, and

Hernandez-Hermann, with whom Plaintiff began treating after Alves and Underhill.

Regarding these opinions, the ALJ stated, in pertinent part:

Dr. Hernandez-Hermann wrote that the claimant is limited in all four broad

areas of mental functioning; she provided greater detail in a later statement,

specifying moderate limitations in concentration, understanding instructions,

maintaining socially appropriate behavior, and keeping a consistent pace

(C42F/1-4. C43F). In a 2022 assessment, she opines that the claimant has

rather extreme physical limitations, including an inability to perform any

postural tasks (C61F). Dr. Jessica Atkins identified greater restrictions,

asserting that the claimant is very limited in understanding and remembering

instructions, and in maintaining attention and concentration (C38F). The

mental assessments by these providers are afforded some weight, as these

are generally consistent with each other, and with the clinical record; The

opinion of Dr. Hernandez-Hermann is inconsistent with the record as a whole

and is, therefore, afforded little weight. (Ex. D2F, p. 43; Ex. D16F, p. 5). A letter

opinion, from John Alves, MD from September 2013, assessing some

limitations for constant walking standing and lifting, is afforded some weight;

however, a checkbox form dated July 1, 2014, finding extreme limitations is

less consistent with the record and is afforded little weight.9 I note that both of

9 This form is found at Tr. 568-576 (Exhibit C23F at pp. 2-11).

19

these assessments predate the application date and, therefore, are less

persuasive with respect to the period from October 2015.

***

Checkbox forms completed for the Department of Social Services over the

period have been reviewed and are afforded little weight as they are brief,

conclusory forms without sufficient narrative explanation or referral to clinical

and diagnostic findings. These include assessments by Heather Underhill, DO,

from September 3, 2015 and February 18, 2016, opinion from an illegible

provider from 2015; opinions of John Alves, MD from October 14, 2013,

November 15, 2013, March 24, 2014, October 3, 2014, and September 1,

2015, June 12, 2016; opinions of primary care provider Jessie A[t]kins DO from

March 1, 2017, and March 13, 2019; and opinions of primary care provider

Marta Hernandez-Hermann, MD, from March 16, 2020 and September 23,

2021 and (C7F, C9F, C25F/3, C38F/4-5, C31F/3-4, C38F/2-3, 4-5, 6-7, C57F).

Tr. 1021-1022.

Plaintiff appealed the ALJ’s adverse determination, but the Appeals Council declined

to review the ALJ’s decision. Tr. 994-997. Therefore, ALJ Theurer’s decision became the

Commissioner’s final decision.

Plaintiff subsequently commenced this action. Plaintiff here does not challenge the

ALJ’s findings at the first three steps of the sequential evaluation, but, rather, primarily

challenges how the ALJ weighed the medical opinion evidence when making his RFC

finding. Plaintiff essentially maintains that she is disabled due to fibromyalgia and/or

Rheumatoid Arthritis, which limits her ability to stand, walk without a cane, and use her

hands, and to mental health problems that cause her to isolate herself “to an extreme

degree.” Plaintiff further maintains that her anxiety and depression “magnify” her physical

pain, limiting her exertional and non-exertional abilities.10

10 Regarding Plaintiff’s allegations concerning her physical functional limitations, see, generally, her Memo of

Law, ECF No. 10-1 at p. 5 (“Ms. Adams is able to stand for about a half an hour before she has to sit as the

20

Plaintiff contends that the ALJ’s contrary decision is affected by errors of law, and

unsupported by substantial evidence, since the ALJ failed to properly apply the treating

physician rule when evaluating the medical opinion evidence. Specifically, Plaintiff asserts

that it was error for the ALJ to give the greatest amount of weight to medical opinions from

state agency consultants and experts who never examined Plaintiff, while giving only little

weight to the opinions of Plaintiff’s treating physicians, especially the opinions of primary

care physicians Alves, Underhill, and Hernandez-Hermann. According to Plaintiff, the ALJ

should have given controlling weight to those treating physicians’ opinions, since they were

consistent with each other and with the record as a whole.

Conversely, Plaintiff asserts that the opinions of the non-treating, non-examining

doctors upon which the ALJ relied to make his RFC finding do not, as a matter of law,

constitute substantial evidence to support that finding.11 Plaintiff maintains that the

perceived inherent unreliability of opinions by non-examining physicians is particularly

applicable to the opinions of non-treating psychologists, given “the inherent subjectivity”

psychiatric diagnoses.

Plaintiff also maintains that, in addition to erring by giving more weight to non-

aching in her feet and legs becomes overwhelming, and she has to elevate her legs to prevent fluid build-up.

R 56-57. Ms. Adams can only walk for about a half an hour before she must stop and rest, and as her pain

has gotten worse she has become gradually weaker and less able to lift, testifying she can only lift five to

seven pounds. R 57. In 2022, Ms. Adams testified the pain and cramping in her hands had worsened to the

point that they cramp into a fist and she is unable to open her hands flat. R 1087. This limits her ability to use

her hands, and Ms. Adams testified she cannot lift a gallon of milk. R 1087.”). Regarding her mental

limitations, Plaintiff asserts that they rob her of the “ability to leave her house and navigate the world.” Id. at

7.

11 See, e.g., Pl. Memo of Law, ECF No. 10-1 at p. 25 (“The ALJ’s heavy reliance [on] the opinions of non-

examining consultants does not constitute substantial evidence to reject the consistent and detailed opinions

of [Plaintiff’s] treating physicians and examining providers.”).

21

examining opinions than to examining/treating opinions, the ALJ, upon deciding not to grant

controlling-weight to the opinions of treating doctors, failed to apply the Burgess factors

when explaining the weight he gave to the treating opinions, as required by the treating

physician rule, 20 CFR § 416.927(c)(2). Plaintiff asserts that, by failing to apply those

factors, the ALJ not only violated the treating physician rule, but he also violated the

directions, given by Judge Larimer when he remanded the action, to properly explain the

weight given to the opinions of treating doctors that were not given controlling weight.

Plaintiff further contends that the ALJ impermissibly “cherry picked” evidence to

support the RFC finding and/or “arbitrarily substituted his own judgment for competent

medical opinion.”12 Indeed, Plaintiff asserts that “[t]he ALJ’s decision . . . is an improper

override of the opinions of [Plaintiff’s] treating physicians’ opinions in order to reach the ALJ’s

desired conclusion of denying [Plaintiff] SSI benefits.”13

Plaintiff insists that the foregoing alleged errors are not harmless, since the treating

physicians’ opinions, if properly credited, would result in a finding of disability, and that the

Commissioner’s decision must therefore be reversed. Plaintiff also contends that,

considering the lengthy procedural history of this action, further administrative proceedings

would be pointless, and that the matter should be remanded solely for calculation of benefits.

Defendant Commissioner disagrees, and maintains that the ALJ’s decision is free of

error and supported by substantial evidence. Defendant contends that the ALJ

complied with Judge Larimer’s decision, since “the ALJ properly evaluated the medical

12 Pl. Reply, ECF No. 20 at p. 2.

13 ECF No. 20 at p. 8.

22

opinion evidence in the record pursuant to the regulations and reached an RFC finding that

is supported by substantial evidence in the record, including the medical expert opinion

evidence.” Def. Memo of Law, ECF No. 17-1 at p. 10.

Defendant further contends that Plaintiff is incorrect to argue that the opinions of

agency review physicians and non-examining experts cannot provide substantial evidence

to support an RFC finding. See, id. at 8 (“Plaintiff’s argument is simply that non-examining

sources such as State agency consultants and medical and medical examiners are only

entitled to little or no weight.”). Defendant maintains, rather, that such opinions can override

treating sources’ opinions if they are supported by substantial evidence in the record, which

is the case here. Id. at 9.

Defendant further indicates, in that regard, that the mental aspect of the RFC finding

is properly supported by the opinions of agency review psychologists (Marks, Ferrin, Sherer)

and Koocher, who, despite not treating or examining Plaintiff, all found that Plaintiff had no

more than moderate limitations in mental functioning. Id. at 9. Defendant also states that

the mental portion of the RFC finding is consistent with the opinions of Drs. Atkins and

Hernandez-Hermann, which the ALJ gave “some weight,” but not controlling weight. Id. at 6

(“Indeed, the generally moderate mental limitations opined by Dr. Hernandez-Hermann and

Dr. Atkins support the mental limitations in the RFC, including simple, routine and repetitive

tasks without fast-paced production requirements, only simple work-related decisions, few

workplace changes, and no more than occasional contact with supervisors, coworkers, and

the public.”).

The Court has carefully considered the parties’ submissions and the relevant portions

23

of the record. For reasons discussed further below, the Court finds that remand is required

for further administrative proceedings.

DISCUSSION

Plaintiff’s claim was filed prior to March 27, 2017, meaning that the ALJ was

required to follow the treating physician rule when evaluating the medical opinion

evidence:

For claims filed prior to March 27, 2017, a treating physician's opinion is

entitled to “controlling weight” when it is “well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with substantial evidence in [the] case record.” 20 C.F.R. §

404.1527(c)(2); see also Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015).

However, the opinion of a treating physician is not afforded controlling weight

where the treating physician's opinion is contradicted by other substantial

evidence in the record, such as the opinions of other medical experts. See

Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). In that situation, “‘the

ALJ must explicitly consider, inter alia: (1) the frequen[c]y, length, nature, and

extent of treatment; (2) the amount of medical evidence supporting the

opinion; (3) the consistency of the opinion with the remaining medical

evidence; and, (4) whether the physician is a specialist.’” Greek, 802 F.3d at

375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)); see also 20

C.F.R. § 404.1527(c). The ALJ must then “‘comprehensively set forth [his or

her] reasons for the weight assigned to a treating physician's opinion.’” Id.

(quoting Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)). “The failure to

provide “‘good reasons” for not crediting the opinion of a claimant's treating

physician is a ground for remand.’” Id. (quotation omitted).

Tina W. v. Comm'r of Soc. Sec., No. 5:22-CV-15 (MAD), 2023 WL 157952, at *6 (N.D.N.Y.

Jan. 10, 2023).

Where an ALJ does not give a treating source’s opinion controlling weight, the ALJ’s

subsequent failure to explicitly discuss the “Burgess factors” is a “procedural error,” though

the error may be deemed harmless if a “searching review of the record” assures the

24

reviewing court that the substance of the treating physician rule was followed. See,

Hamilton v. Comm'r of Soc. Sec., No. 22-612-CV, 2023 WL 2395931, at *1–2 (2d Cir. Mar.

8, 2023) (“An ALJ's failure to explicitly apply the Burgess factors when assigning weight ...

is a procedural error.... If, however, a searching review of the record assures us that the

substance of the treating physician rule was not traversed, we will affirm.”) (quoting

Estrella v. Berryhill, 925 F.3d 90, 95–96 (2d Cir. 2019), other citation omitted).

Indeed, even where an ALJ purports to apply the Burgess factors, his failure to

expressly discuss each factor is not a basis for remand, provided that his reasoning is

otherwise clear. See, Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013) (“Atwater

challenges the ALJ's failure to review explicitly each factor provided in 20 C.F.R. §

404.1527(c). We require no such slavish recitation of each and every factor where the

ALJ's reasoning and adherence to the regulation are clear. See Halloran v. Barnhart, 362

F.3d 28, 31–32 (2d Cir.2004) (per curiam) (affirming ALJ opinion which did “not expressly

acknowledge the treating physician rule,” but where “the substance of the treating

physician rule was not traversed.”).”).

Along with these principles, it is also well settled that an ALJ must generally provide

an adequate explanation for his decision:

Courts in this Circuit have indicated that ALJs must not only identify supporting

evidence, they also must build an accurate and logical bridge from that

evidence to the conclusion. In sum, while ALJs are not required to reconcile

every conflicting shred of medical testimony, they must discuss the evidence

and factors crucial to the disability determination with sufficient specificity to

enable this Court to decide whether the determination is supported by

substantial evidence.

25

Orlando Christopher D. v. Commissioner, No. 1:24-CV-01526 (PJE), 2026 WL 494026, at

*8 (N.D.N.Y. Feb. 23, 2026) (citations and internal quotation marks omitted); see also,

Terrence S. B. v. Comm'r of Soc. Sec., No. 1:22-CV-0380 (JJM), 2024 WL 4131237, at *5

(W.D.N.Y. Sept. 10, 2024) (“ALJ Bell's explanation was sufficiently specific to satisfy his

obligation ‘to construct an accurate and logical bridge between his recitation of the facts and

the conclusions he reached.’”) (citation omitted).

However, it is similarly well-settled that “this principle supplies a basis for remand only

when the link between evidence and conclusion is so opaque as to frustrate review.” Lisette

R. o/b/o C.J.O. v. Kijakazi, No. 3:22-CV-00784-TOF, 2023 WL 6357961, at *6 (D. Conn.

Sept. 29, 2023) (emphasis added). In this regard, to be sufficient, the ALJ’s explanation

need only allow the Court to understand the ALJ’s reasoning, and be supported by

substantial evidence. See, Lisette R. o/b/o C.J.O. v. Kijakazi, No. 3:22-CV-00784-TOF, 2023

WL 6357961, at *4 (D. Conn. Sept. 29, 2023) (“[The ALJ’s] discussion, while not lengthy, is

nonetheless sufficient to permit the Court to understand his reasoning: he thought that the

data in the school records suggesting a marked limitation were outweighed by other data

suggesting a lower level of limitation.”); see also, Tami B. v. Comm'r of Soc. Sec., No. 3:21-

CV-01460 (JCH), 2023 WL 2403898, at *8 (D. Conn. Mar. 7, 2023) (“[A] district court must

remand where the ALJ's decision was not thoroughly explained in a manner that allows the

court to be comfortable that it was supported by substantial evidence.”).

With these principles in mind, the Court now turns to Plaintiff’s primary argument,

which is that remand is required since the ALJ failed to properly evaluate the opinions of

Plaintiff’s treating doctors as required by the treating physician rule. Preliminarily, insofar

26

as Plaintiff maintains that, with proper application of the treating physician rule, the ALJ

would have been required to give controlling weight to the opinions of the treating physicians,

the Court disagrees, for reasons that it will discuss further below when explaining why

remand solely for calculation of benefits is not warranted.

However, the Court agrees that the ALJ failed to properly apply the treating physician

rule when explaining the weight that he gave to the opinions of Alves, Underhill, Atkins, and

Hernandez-Hermann. The ALJ’s explanation is cursory and does not explicitly apply the

Burgess factors to those doctors’ opinions. Tr. 1021-1022. For example, when giving

Hernandez-Hermann’s physical RFC opinion only “little weight,” the ALJ gave only a one

line explanation, namely, “The opinion of Dr. Hernandez-Hermann is inconsistent with the

record as a whole and is, therefore, afforded little weight.” Tr. 1022. The ALJ provided a

similarly terse explanation for rejecting Alves’s opinions. Tr. 1022. In sum, the ALJ failed

to properly apply the treating physician rule.

Furthermore, this is not a case where the Court can find that the error is harmless

because the ALJ’s rationale is otherwise clear and the findings are supported by substantial

evidence. In the first place, the ALJ’s rationale is not entirely clear. The ALJ’s purported

reason for affording little weight to the treating opinions is that they are inconsistent with the

record as a whole, but the ALJ devotes little discussion to any such actual inconsistencies.

The ALJ seemingly devotes more discussion to evidence he interprets as showing that

Plaintiff has consistently attempted to mislead treating and consulting doctors into believing

that she is more disabled than she really is, which, if supported, would be a good reason to

discount the treating doctors’ opinions. However, that is not the reason the ALJ gave, and,

27

consequently, the Court finds that the ALJ’s true rationale for giving the treating physicians’

opinions less than controlling weight is somewhat ambiguous.

Moreover, even assuming arguendo that the ALJ’s reasoning was more clear, there

is also a question as to whether the ALJ’s finding, concerning the weight of the medical

evidence, is supported by substantial evidence. In that regard, the ALJ’s decision indicates

that he called Gaeta and Koocher to testify because the opinion evidence of record to that

point was inconsistent. See, Tr. 1020 (“Regarding the opinion evidence, there are numerous

opinions, reflecting inconsistent opinions throughout the period. Given these

inconsistencies, opinions of medical experts were sought.”). Accordingly, it is clear that the

ALJ’s RFC finding relies heavily on Gaeta’s testimony to resolve the alleged inconsistency

of the opinions concerning Plaintiff’s physical impairments.

However, it is unclear whether Gaeta’s testimony supports the RFC finding. Upon

direct examination by the ALJ, Dr. Gaeta testified that, “based upon [his] review of the

objective medical evidence,” he felt Plaintiff was capable of performing a restricted range of

light work. Tr. 1046 (emphasis added). Gaeta also testified that he did not find the greater

limitations in other medical opinions in the record convincing, inasmuch as they were not

supported by objective testing. Gaeta based his opinion on the lack of objective evidence,

even while acknowledging that fibromyalgia is a diagnosis not supported by objective

findings:

[ALJ:] There's a number of source statements within in the file that opine

significantly more limitations [than what you have identified].

[Gaeta:] Yes. Actually those, you know, unfortunately, you know, I don't think

they're backed up with, you know, actual objective physical findings. You

28

know, I wonder whether some of those are made on the bases of symptoms,

which are very profound and significant but again wherever you see physical

examinations maybe outside of, you know, swelling in the fingers at times. I

don't see that she has, that those are supported by objective, either physical

findings, laboratory findings, or x-rays[.]

Tr. 1047. Upon cross-examination, by Plaintiff’s attorney, Gaeta testified, in pertinent part,

as follows:

[Attorney:] Is it possible that she could have those symptoms and the pain that

she has [been] reporting despite the, you know, maybe limited testing or

findings that you spoke of, the objective finding?

[Gaeta:] Well sure, I mean that's actually, you know, fibromyalgia, is defined,

you know, that way usually, is it, you know, it's significant symptomatology

unsupported by, you know, objective findings. That's what, you know, that's

what is fibromyalgia is assessed along with the tender points.

[Attorney:] Okay. And so, you know, obviously, as you said, you know, there's

significant symptomatology and, you know, people with something like

fibromyalgia can have good days and bad days. Other than, you know, or given

that[,] has she been consistent in her reports to treatment providers?

[Gaeta:] Yes, I would say so. Now let me say that she was being followed by

a rheumatologist, you know, and they felt that they really couldn't do much

more for her, you know, other than give her the, you know, pain medication,

but yes, it is consistent in her, you know, reporting those symptoms.

***

[Attorney:] Sure. So, you said that she would be able to sit, stand and walk for

six hours, you know, each out of a day, would that be unpredictable? Like

would she need to be able to change position at will or is that something that,

you know, could be predictable?

[Gaeta:] Well by symptoms it would not be predictable, you know, by

symptoms it would be days that she couldn't do that.

[Attorney:] So, there might be days where she --

29

[Gaeta:] And it does say based on symptoms, yes.

[Attorney:] Okay. So, there might be days where she couldn't sit or stand or

walk for six hours in a given day?

[Gaeta:] I think she would be able to do that every day but there would be days

where because of symptoms she couldn't do it, but if you examined her on

those days she would be able to do it.

Tr. 1048-1050 (emphasis added).

By drawing this distinction between “objective findings” and “symptoms,” Gaeta

seems to be indicating that he did not consider Plaintiff’s symptoms, that is, her alleged pain

from fibromyalgia, when formulating his opinion. Gaeta further seems to be indicating that

Plaintiff might not be able to work on certain days due to her pain symptoms, but that he

would nevertheless consider her able to work on such days, due to an absence of objective

findings.

The ALJ did not ask Gaeta any clarifying questions, even though Gaeta’s testimony

was unclear, both as to whether he had based his opinion about the limiting effects of

Plaintiff’s fibromyalgia solely on the lack of objective findings, and as to whether Plaintiff

could perform work consistent with the RFC on a sustained basis. Consequently, and

without some clarification, the Court does not have a high degree of confidence that Gaeta’s

testimony supports either his opinion or the ALJ’s RFC finding.

For the various reasons just discussed, the Court finds that remand is required.

Plaintiff contends that remand solely for calculation of benefits is required, since “application

of the correct legal principles to the record could lead to only one conclusion,” namely, a

30

finding of disability. Pl. Memo of Law, ECF No. 10-1 at p. 25. However, the Court disagrees,

inasmuch as the record does not overwhelmingly indicate that Plaintiff is disabled. See, e.g.,

Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Of course, where application of the

correct legal principles to the record could lead to only one conclusion, there is no need to

require agency reconsideration. See Havas v. Bowen, supra, 804 F.2d at 786. Unlike the

situation in Havas, however, where no substantial evidence contradicted the treating

physician's opinion that the claimant could not return to his prior employment, the present

record does not compel but one conclusion under the treating physician rule and the

substantial evidence standard.”).

In this regard, the opinion most supportive of Plaintiff’s disability claim appears to be

the one by her treating primary-care physician, Hernandez-Hermann, dated September 1,

2022. Tr. 3609-3613. The opinion, if accepted, would clearly be work-preclusive, since it

indicates that, due to her fibromyalgia, Plaintiff needs to lie down during the day; can sit for

only one hour during an eight-hour workday; can stand and/or walk for less than one hour

in an eight-hour workday; can never lift or carry more than five pounds; can never bend,

squat, crawl, climb, or reach; can only occasionally handle, finger, push, or perform repetitive

movements; will have good and bad days, and will miss more than four days of work per

month. Tr. 3611-3613. The report further indicates that, due to mental impairments,

Plaintiff, who purportedly has never driven a car, would be completely unable to travel by

public transportation. Tr. 3611.

However, it is evident that this opinion is based primarily, if not entirely, on Plaintiff’s

subjective reports, including her reports of experiencing pain at trigger points, which is, of

31

course, how fibromyalgia is diagnosed. On this point, Hernandez-Hermann writes:

Patient admits to fatigue, generalized weakness, progressing, worse in hands,

and now, lower extremities, pain in specific trigger points (such as hands, feet,

shoulders, ankles, knees-posterior. Limitations in daily activities such as

grooming (shaving), cooking, dress, etc. due to weakness and pain. She also

reports nightmares and flashbacks related to prior trauma, panic attacks and

poor sleep; hypervigilance and feeling afraid in her home due to issues w/

landlord, as well as outside of her home. Financial difficulties are an ongoing

stressor.

Tr. 3610. Hernandez-Hermann acknowledges that there are no objective findings to

support her opinion. In that regard, she notes that, since 2013, Plaintiff’s rheumatological

testing has been normal, and that all x-rays have similarly been normal. Tr. 3609. When

asked to explain the findings that support her opinion, Hernandez-Hermann wrote:

“Weakness in hands and lower extremities, alongside pain limit ADLs. Patient comes into

office today using cane to assist w/ ambulation.” Tr. 3609. However, Hernandez-Hermann

indicates that even her statement about Plaintiff’s “worsening” pain in her hands and lower

extremities is based on what Plaintiff told her that day, and not on anything Hernandez-

Hermann observed. Tr. 3609 (“Patient reports progressively worsening pain and weakness

in lower extremities and hands[.]”).

At most, Hernandez-Hermann indicates that fibromyalgia could well explain Plaintiff’s

reported symptoms, even in the absence of positive findings, stating, “fibromyalgia can

cause widespread pain, fatigue, sleep disturbances in the absence of joint swelling,

inflammation and normal lab tests.” Tr. 3610. At the same time, Hernandez-Hermann

seems unsure of what actually might be causing Plaintiff’s reported complaints, since she

states: “Patient’s [reported] motor abnormalities are currently being worked up to rule out

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other underlying condition.” Tr. 3610. It is apparent, though, that any such condition would

not include rheumatoid arthritis, which some of Plaintiff’s doctors previously thought Plaintiff

had, since Hernandez-Hermann acknowledges that “repeat immunological tests [for that

condition] have been normal” since 2013. Tr. 3609.

In any event, this work-preclusive opinion by Hernandez-Hermann is not consistent

with her prior reports, in which she reported only moderate limitations. For example, on

March 30, 2020, Hernandez-Herman completed a functional assessment in which she

indicated that Plaintiff had, at most, moderate limitations in walking, standing, sitting, lifting,

carrying, pushing, pulling, bending, using hands, climbing, understanding instructions,

carrying out instructions, maintaining social behavior, and functioning in a work setting. Tr.

4260. Indeed, Hernandez-Hermann indicated that Plaintiff had no limitation in making

simple decisions or interacting with others, and that Plaintiff was not “very limited” in any

category of mental or physical functioning. Id. On September 23, 2021, Hernandez-

Hermann issued an almost identical report, again indicating that Plaintiff had no more than

moderate limitations in any category of physical or mental functioning. Tr. 3518. Notably,

these prior assessments by Hernandez-Hermann are largely consistent with the opinion of

Plaintiff’s prior treating physician Jessie Atkins, D.O. (“Atkins”), who, on March 13, 2019,

reported that Plaintiff had no more than “moderate” limitations in any category of physical

functioning. Tr. 3067, 4033.14

14 Unlike Hernandez-Hermann, Atkins opined, without explanation, that Plaintiff was “very limited” in just two

categories, namely, “understanding and remembering instructions,” and “maintaining attention/

concentration.” Tr. 3067. However, on August 10, 2020, Hernandez-Hermann opined that, despite having

some limitation in her ability to maintain concentration and persistence, Plaintiff was “able to follow

instructions.” Tr. 3178.

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In fact, prior to her opinion written on September 1, 2022, Hernandez-Hermann’s

functional reports were less-restrictive, regarding physical limitations, than most of those

written by Drs. Alves and Underhill, the primary care physicians with whom Plaintiff treated

prior to Drs. Atkins and Hernandez-Herman. For example, on September 12, 2016, Dr.

Alves, who was then operating with the understanding, later disproven by testing, that

Plaintiff had inflammatory arthritis, see, e.g., Tr. 375, stated that Plaintiff was “very limited”

in lifting, carrying, pushing, pulling, bending, climbing. Tr. 357; accord, Tr. 359 (Assessment

by Dr.Underhill dated February 18, 2016).

It is interesting to note, however, that in those same reports, Alves and Underhill

consistently reported that Plaintiff had no limitation whatsoever as to sitting, and only

moderate limitations in standing and walking. Tr. 357, 359, 361, 363, 365, 367, 372, 374,

3069.15

With few exceptions, Alves and Underhill also consistently opined that Plaintiff had

“no evidence of limitation” in most areas of mental functioning. See, e.g., Tr. 357, 359, 361,

365, 367, 372, 374, 3069. Rather, in those reports, Alves and Underhill repeatedly

indicated that Plaintiff was only moderately limited in just two categories of mental

functioning, namely, maintaining attention and concentration, and functioning in a work

setting at a consistent pace. Id.

15 The consistency of these opinions on this point clarifies the earlier opinion by Alves in 2013, mentioned in

Judge Larimer’s decision, in which Alves opined that, “Fibromyalgia and Rheumatoid Arthritis mak[e] it

difficult to accomplish many jobs requiring constant walking, standing, or lifting. Employment requiring limited

movement or sitting is recommended for her.” (Dkt. #8-7 at 375.). The Court initially thought that, contrary to

his later opinions, Alves was stating there that Plaintiff needed a job that required “limited movement” and

“limited sitting.” However, it is now evident that Alves meant Plaintiff needed either a job with limited

“movement,” meaning limited walking, standing, and lifting, or a job primarily involving sitting.

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Hernandez-Hermann’s September 1, 2022 opinion is also inconsistent with an

opinion by Dr. Magurno, who, as mentioned earlier, conducted a consultative internal

medicine exam at the Commissioner’s request, Tr. 548-552, and found that Plaintiff would

have only “moderate limitations for bending, lifting, carrying, pushing, and pulling,” with no

limitation found for sitting, standing, or walking. Tr. 551.16

Hernandez-Hermann’s work-preclusive opinion does not purport to be based on any

new or worsening medical findings or testing. Rather, the inconsistency between such

report and Hernandez-Hermann’s earlier reports, and the other reports just mentioned, is

apparently explained, in Hernandez-Hermann’s opinion dated September 1, 2022, by the

fact, noted earlier, that Plaintiff told Hernandez-Hermann that her symptoms were

“progressively worsening.” See, Tr. 3609 (“Patient reports progressively worsening pain and

weakness in lower extremities and hands affecting activities of daily living.”). Hernandez-

Hermann does not seem to offer any explanation for why Plaintiff’s symptoms would be

worsening, other than that Plaintiff told her she was having more problems in her personal

life and with her mental health. See, Tr. 3610 (“Psychosocial factors substantially impact on

prognosis and outcome of fibromyalgia.”).

In sum, rather than finding that the evidence points in only one direction, as Plaintiff

maintains, the Court finds that there are significant inconsistencies in the opinion evidence

that need to be resolved by further administrative proceedings.17 Indeed, the inconsistency

16 Indeed, the most serious limitation to which Magurno opined was limitations from migraine headaches, but

the ALJ here found that Plaintiff’s alleged migraine headache condition was not even a severe impairment,

and Plaintiff has not challenged that finding. See, ALJ’s decision, Tr. 1014.

17 Insofar as Judge Larimer suggested that the opinion evidence before him at the time was “largely

consistent,” the undersigned respectfully disagrees. For instance, and as Judge Larimer’s decision correctly

observes, Alves’s opinions were not even consistent with each other, since most reflected only moderate

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of the opinion evidence was the reason given by the ALJ for needing to have medical experts

testify at the hearing. Plaintiff's request to have the matter remanded solely for calculation

of benefits is therefore denied.

CONCLUSION

For the reasons discussed above, Plaintiff's motion (ECF No. 10) for judgment on the

pleadings is granted, and Defendant's cross-motion (ECF No. 17) for the same relief is

denied. The Commissioner's decision is reversed, and the matter is remanded to the

Commissioner for further administrative proceedings consistent with this Decision and

Order. The Clerk of the Court is directed to enter judgment for Plaintiff and close this action.

So Ordered.

Dated: Rochester, New York

March 31, 2026

ENTER:

Chik aoe

CHARLES\U/ SIRAGUSA

United States District ge

limitations, while two outliers in the middle of the period he treated Plaintiff listed more extreme limitations.

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