Howell v. Commissioner of Social Security

Filing 19

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED, that the Commissioner's decision is AFFIRMED; and it is further ORDERED, that the Commissioner's # 17 motion for judgment on the pleadings is GRANTED, and plaintiff's motion # 14 for judgment on the pleadings is DENIED; and it is further ORDERED, that the Clerk of the Court serve copies of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by Magistrate Judge Christian F. Hummel on 1/18/2023. (pjh, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
SHANNON JO H.
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,

No. 5:21-CV-878
(CFH)

Defendant.
_____________________________________

APPEARANCES:

OF COUNSEL:

Law Offices of Kenneth Hiller, PLLC
6000 North Bailey Avenue – Suite 1A
Amherst, New York 14226
Attorney for plaintiff

KENNETH R. HILLER, ESQ.

Social Security Administration
Office of General Counsel
6401 Security Boulevard
Baltimore, Maryland 21235
Attorneys for defendant

AMY BLAND, ESQ.
JUNE L. BYUN, ESQ.

CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION AND ORDER1
Shannon Jo H.2 (“plaintiff” or “the claimant”) brings this action pursuant to 42
U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security
(“the Commissioner”) denying her application for supplemental security income benefits.

1

Parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C. § 636(c),
Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 72.2(b), and General Order 18. See Dkt. No. 6.
2 In accordance with guidance from the Committee on Court Administration and Case Management of the
Judicial Conference of the United States, which was adopted by the Northern District of New York in 2018
to better protect personal and medical information of non-governmental parties, this MemorandumDecision and Order will identify plaintiff’s last name by initial only.

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See Dkt. No. 1 (“Compl.”). Plaintiff moves for judgment on the pleadings and for the
Commissioner’s decision to be reversed and remanded for further proceedings. See
Dkt. No. 14. The Commissioner moves for judgment on the pleadings and for the
Commissioner’s decision to be affirmed. See Dkt. No. 17. For the reasons that follow,
plaintiff’s motion is denied, the Commissioner’s motion is granted, and the
Commissioner’s decision is affirmed.

I. Background
On April 27, 2018, plaintiff filed a Title XVI application supplemental security
income benefits. See T. at 164-71.3 Plaintiff alleged a disability onset date of January
1, 2010. See id. at 164. The Social Security Administration (“SSA”) denied plaintiff’s
claim on September 24, 2018. See id. at 75. Plaintiff requested a hearing, see id. at
92, and a hearing was held before Administrative Law Judge (“ALJ”) Dale BlackPennington on July 17, 2020. See id. at 32-54. On October 21, 2020, the ALJ issued
an unfavorable decision. See id. at 15-31. On June 14, 2021, the Appeals Council
denied plaintiff’s request for review of the ALJ’s decision. See id. at 1-5. Plaintiff timely
commenced this action on August 3, 2021. See Compl.

“T.” followed by a number refers to the pages of the administrative transcript filed by the Commissioner.
See Dkt. No. 10. Citations to the administrative transcript refer to the pagination in the bottom, right-hand
corner of the page, not the pagination generated by CM/ECF.
3

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II. Legal Standards
A. Standard of Review
In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),
1388(c)(3); Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990). Rather, the Commissioner’s determination will only be reversed if the correct
legal standards were not applied or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 985-86 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d
464, 467 (2d Cir. 1982). Substantial evidence is “more than a mere scintilla,” meaning
that in the record one can find “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d
Cir. 2004) (per curiam) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
citations omitted)). The substantial evidence standard is “a very deferential standard of
review . . . . [This] means once an ALJ finds facts, we can reject [them] only if a
reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin.,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (internal quotations marks,
citation, and emphasis omitted). Where there is reasonable doubt as to whether the
Commissioner applied the proper legal standards, the decision should not be affirmed
even though the ultimate conclusion is arguably supported by substantial evidence.
See Martone v. Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson, 817
F.2d at 986). However, if the correct legal standards were applied and the ALJ’s finding
is supported by substantial evidence, such finding must be sustained “even where
substantial evidence may support the plaintiff’s position and despite that the court’s

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independent analysis of the evidence may differ from the [Commissioner’s].” Rosado v.
Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citation omitted).
B. Determination of Disability
“Every individual who is under a disability shall be entitled to a disability . . .
benefit . . . .” 42 U.S.C. § 423(a)(1)(E). Disability is defined as the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected to last for a continuous
period of not less than 12 months[.]” Id. § 423(d)(1)(A). A medically-determinable
impairment is an affliction that is so severe that it renders an individual unable to
continue with his or her previous work or any other employment that may be available to
him or her based upon age, education, and work experience. See id. § 423(d)(2)(A).
Such an impairment must be supported by “medically acceptable clinical and laboratory
diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is
“based on objective medical facts, diagnoses[,] or medical opinions inferable from [the]
facts, subjective complaints of pain or disability, and educational background, age, and
work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3
(S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
1983)).
The Second Circuit employs a five-step analysis, based on 20 C.F.R.
§ 404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers
whether the claimant has a “severe impairment” which

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significantly limits his [or her] physical or mental ability to do
basic work activities.
If the claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has
an impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner] will consider him [or her] disabled without
considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a
claimant who is afflicted with a “listed” impairment is unable
to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s severe
impairment, he [or she] has the residual functional capacity
to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past
work, the [Commissioner] then determines whether there is
other work which the claimant could perform.
Berry, 675 F.2d at 467 (spacing added). “If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further.” Barnhart v. Thomas,
540 U.S. 20, 24 (2003). The plaintiff bears the initial burden of proof to establish each
of the first four steps. See DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998)
(citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden
shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful
employment somewhere. Id. (citing Berry, 675 F.2d at 467).

III. The ALJ’s Decision
Applying the five-step disability sequential evaluation, the ALJ first determined
that plaintiff had “not engaged in substantial gainful activity since April 27, 2018, the

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application date.” T. at 20. At step two, the ALJ found that plaintiff had “the following
severe impairments: depressive disorder, anxiety disorder, attention deficit hyperactivity
disorder (ADHD), and posttraumatic stress disorder (PTSD)[.]” Id. At step three, the
ALJ determined 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. See id. at 21. Before reaching step four, the ALJ
concluded that plaintiff retained the residual functional capacity (“RFC”)
to perform a full range of work at all exertional levels but is limited to
performing the simple, routine tasks associated with unskilled to semiskilled work at a[ Specific Vocational Preparation (”SVP”)] of 1-3, can have
frequent transactional contact with supervisors and occasional contact
with co-workers and the public, requires a small group or individual work
environment, requires a fixed work schedule and fixed tasks, and is not
able to manage changes to the workplace environment and/or tasks.
Id. at 22. At step four, the ALJ determined that plaintiff did not have any past relevant
work. See id. at 25. At step five, “[c]onsidering the claimant’s age, education, work
experience, and residual functional capacity,” the ALJ determined that “there are jobs
that exist in significant numbers in the national economy that the claimant can
perform[.]” Id. at 26. Thus, the ALJ determined that plaintiff had “not been under a
disability, as defined in the Social Security Act, since April 27, 2018, the date the
application was filed[.]” Id.

IV. Arguments4

The Court’s citations to the parties’ briefs refer to the pagination generated by CM/ECF in the pages’
headers.
4

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Plaintiff argues that (1) the ALJ failed to reconcile the medical opinion from
consultative examiner, Jeanne A. Shapiro, M.D., with his RFC determination; (2) the
ALJ erred in his evaluation of plaintiff’s subjective complaints; and (3) “[n]o meaningful
review of the vocational expert [(“VE”)] testimony . . . can be conducted because the
transcript of the July 2020 hearing appears to be incomplete[.]” Dkt. No. 14-1 at 16; 8,
12. The Commissioner argues that substantial evidence supports the ALJ’s
consideration of Dr. Shapiro’s opinion and plaintiff’s subjective complaints. See Dkt.
No. 17 at 5-17. The Commissioner also asserts that plaintiff has not shown prejudice
from the “alleged omission” from the hearing transcript. Id. at 18.

V. Discussion
A. RFC Determination
1. Whether the ALJ Appropriately Considered Dr. Shapiro’s Medical Opinion
Plaintiff argues that the ALJ erred in concluding that Dr. Shapiro’s opinion was
“consistent with my above noted ‘paragraph B’ findings of no strictly marked or extreme
functional limitations and the above noted mental residual functional capacity.” Dkt. No.
14-1 at 9 (quoting T. at 24). Plaintiff contends that the ALJ’s logical is circular and
warrants remand because the ALJ first determined plaintiff’s RFC and subsequently
discussed whether the evidence was consistent with plaintiff’s RFC. See id. Plaintiff
also asserts that the ALJ failed to reconcile Dr. Shapiro’s opinion that plaintiff had
moderate limitations in “sustaining concentration and performing a task at a consistent

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pace and sustaining an ordinary routine and regular attendance at work” with the RFC
determination. Id. at 11.
The Commissioners argues that “[p]laintiff ignores the rest of the ALJ’s
discussion” which reviewed plaintiff’s records reflecting “largely normal clinical findings”
with “some positive findings[.]” Dkt. No. 17 at 7-8. The Commissioner also notes the
reliance on plaintiff’s activities of daily living and Dr. Shapiro’s and state agency medical
consultant M. Juriga, Ph.D.’s opinions. See id. at 9-12. To the extent plaintiff argues
that the ALJ erred in failing to reconcile certain moderate limitations with the RFC
determination, the Commissioner states that “there is nothing inherently disabling about
moderate or even marked mental limitations[]” and the ALJ appropriately determined
plaintiff’s RFC based on all of the evidence in the record. Id. at 10.
An “ALJ cannot credit a medical opinion to the extent it is consistent with his
already-determined RFC.” Chhibber v. Comm’r of Soc. Sec., No. 18-CV-6039 (FPG),
2018 WL 6321393, at *4 (W.D.N.Y. Dec. 4, 2018). “Such reasoning is circular and
flawed. The ALJ should use medical opinions to determine [the p]laintiff’s RFC, and,
therefore, cannot give medical opinions weight based on their consistency with the
RFC.” Faherty v. Astrue, No. 11-CV-2476 (DLI), 2013 WL 1290953, at *14 (E.D.N.Y.
Mar. 28, 2013); accord Simmons v. Colvin, No. 15-CV-0377, 2016 WL 1255725, at *15
(E.D.N.Y. Mar. 28, 2016). Courts have concluded that an ALJ’s “circular” reasoning
may warrant remand. See Mault v. Colvin, No. 1:14-CV-00751 (MAT), 2017 WL
1100617, at *4 (W.D.N.Y. Mar. 24, 2017) (“The final reason the ALJ gave for the weight
given to [the] opinion was that it was ‘consistent . . . with the adopted [RFC].’ The ALJ
cannot support a decision regarding weight with a reference to an already-determined

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RFC.”); Simmons, 2016 WL 1255725, at *15 (“The ALJ should not have assessed [the
doctor’s] findings and opinions relative to the RFC; the fact that he did so suggests that
the ALJ first determined [the p]laintiff’s RFC and then considered the medical opinions
in light of that finding.”); Karabinas v. Colvin, 16 F. Supp. 3d 206, 219 (W.D.N.Y. 2014)
(“The ALJ here found that . . . [the plaintiff’s] testimony concerning the intensity,
persistence, and limiting effects of his pain and the side-effects of his medications were
‘not credible to the extent they are inconsistent with the above residual functional
capacity assessment.’ The Court has found no support in the regulations or the
caselaw from this Circuit supporting the propriety of basing a credibility determination
solely upon whether the ALJ deems the claimant’s allegations to be congruent with the
ALJ’s own RFC finding.”).
However, these cases determined that the ALJ’s “circular reasoning fail[ed]
where the RFC finding [wa]s not supported by substantial evidence in the first place.”
Mault, 2017 WL 1100617, at *4; see also Karabinas, 16 F. Supp. 3d at 219 (“The ALJ
omitted the conclusions of several medical sources that supported [the p]laintiff’s
credibility and omitted any mention of [the p]laintiff’s prescription regimen and the
individual and combined side effects of his medications[.]”); Simmons, 2016 WL
1255725, at *14 (concluding that the ALJ erred in considering a medical opinion
because the ALJ’s logic was circular but also because the opinion was “too vague to
provide sufficient support for the ALJ’s specific functional assessments”).
Similarly, courts have concluded that an ALJ’s reasoning, despite referring back
to the RFC determination, is not circular where he or she provided sufficient
consideration of a medical opinion. See Abar v. Colvin, No. 7:15-CV-0095 (GTS/WBC),

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2016 WL 1298135, at *5 (N.D.N.Y. Mar. 31, 2016) (“If the ALJ had indeed afforded Dr.
Noia’s opinion significant weight merely because it was consistent with the ALJ’s RFC
determination, then his reasons would have been circular. However, the ALJ did not do
so but properly analyzed every applicable regulatory factor in explaining his reasoning
for affording significant weight to Dr. Noia’s opinion . . . Accordingly, we are able to
decipher the basis of the ALJ’s decision and recognize that the ALJ properly adhered to
the regulatory factors.”); David N. v. Comm’r of Soc. Sec., No. 19-CV-219 (LJV), 2021
WL 2525096, at *3, n.5 (W.D.N.Y. June 21, 2021) (citations omitted) (“It is true that an
‘ALJ cannot support a decision regarding weight with a reference to an alreadydetermined RFC.’ Here, however, the ALJ’s explanation included more than enough
support for giving Dr. McMahon-Tronetti’s opinion ‘great weight.’”); Michael R. v.
Comm’r of Soc. Sec., No. 19-CV-6836 (MJR), 2021 WL 346365, at *7 (W.D.N.Y. Feb. 2,
2021) (acknowledging the plaintiff’s argument about “‘circular’ reasoning” but finding no
error in the ALJ’s consideration of a medical opinion where the ALJ discussed the
medical opinions, the plaintiff’s activities of daily living, and the treatment evidence and
“[w]hile the ALJ may not have explained how every piece of evidence was weighed
against the [provider’s] statements, the ALJ’s rationale is apparent.”); Nicole M. E. o/b/o
E.F. v. Kijakazi, No. 6:21-CV-337 (MAD/DJS), 2022 WL 3577114, at *6 (N.D.N.Y. Aug.
18, 2022) (finding no error where the “ALJ [] did not discount the medical and
educational professional’s opinions because they did not comport with his own
interpretation of the underlying data. Rather, he had first extensively analyzed the
opinions for supportability and consistency as required by 20 C.F.R. § 416.920c(b)(2)
and 20 C.F.R. § 416.920c(c). After performing that analysis, in conclusion, he stated

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that the opinions remained persuasive to the extent it is consistent with the remainder of
the opinion.”).
On August 22, 2018, plaintiff underwent a consultative psychiatric examination
with Dr. Shapiro. See T. at 488. Dr. Shapiro determined that plaintiff had (1) no
limitations understanding, remembering, or applying simple directions and instructions,
using reasoning and judgment to make work-related decisions, interacting adequately
with supervisors, coworkers, and the public, maintaining personal hygiene and wearing
appropriate attire, being aware of normal hazards, and taking appropriate precautions;
(2) “mild-moderate moderate-marked limitations understanding, remembering, or
applying complex directions and instructions[]”; (3) moderate limitations sustaining
concentration and performing a task at a consistent pace, and sustaining an ordinary
routine and regular attendance at work; and (4) moderate to marked limitations
regulating emotions, controlling behavior, and maintaining well-being. See id. at 491.
Dr. Shapiro concluded that plaintiff’s “[d]ifficulties are caused by psychiatric problems”
“and this may significantly interfere with [her] ability to function on a daily basis.” Id. at
491-92. Dr. Shapiro noted that “[t]he expected duration of the impairment and timeframe for suggested therapy is more than 2 years. Her prognosis may improve over
time with appropriate treatment.” Id. at 492.
In his decision, the ALJ reiterated Dr. Shapiro’s findings and conclusions. See T.
at 24. Specifically, the ALJ stated that “Dr. Shapiro did not assess extreme or strictly
marked limitations for any work-related activities. She did characterize the claimant’s
difficulty understanding, remembering, or applying complex directions and instructions
and regulating emotions, controlling behavior, and maintaining well-being as ‘moderate-

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marked.’” Id. “All other vocational limitations were characterized as only moderate or
‘mild-moderate’ in severity, and Dr. Shapiro specifically reported that the claimant
appears to have no limitations interacting adequately with supervisors, co-workers, and
the public.” Id. The ALJ noted that Dr. Shapiro “recommended no additional
interventions beyond the claimant’s treatment as currently provided and advised that the
claimant’s prognosis ‘may improve over time’ with continuation of appropriate
treatment.” Id. He then concluded that “on the whole, I consider Dr. Shapiro’s report
and opinion consistent with my above noted ‘paragraph B’ findings of no strictly marked
or extreme functional limitations and the above noted mental residual functional
capacity.” T. at 24. The ALJ stated that,
“[i]n particular, I note that Dr. Shapiro’s assessment of moderate to
marked limitation dealing with complex instructions and directions is amply
accommodated by the above noted restriction to simple work within an
SVP of 1-3, and Dr. Shapiro’s assessment of moderate to marked difficulty
regulating emotions, controlling behavior, and maintaining well-being is
amply accommodated by the above noted restrictions to a fixed work
schedule, reduced interaction with others in the workplace, and a
restriction to a job that does not involve managing changes in the
workplace environment or changes to job tasks.”
Id.
The ALJ’s reasoning is circular whereby the ALJ determined plaintiff’s RFC and
then examined whether Dr. Shapiro’s opinion was consistent with his RFC
determination. See id. at 24-25. The ALJ did not review the supportability and
consistency of Dr. Shapiro’s opinion as required by 20 C.F.R. § 416.920c and then craft
an RFC based on the evidence that was consistent throughout the record. This is error.
See Faherty, 2013 WL 1290953, at *14.

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Nevertheless, the error is harmless. In determining plaintiff’s RFC, the ALJ
reviewed Dr. Juriga’s state agency opinion. See T. at 24. The ALJ reiterated Dr.
Juriga’s conclusion that plaintiff “is only moderately limited with respect to her ability to
understand, remember, and apply information, concentrate, persist, or maintain pace,
and adapt or manage herself and is not at all limited in her ability to interact with
others[.]” Id. (citing T. at 62). The ALJ also noted Dr. Juriga’s determination that
plaintiff “retain[ed] the mental residual functional capacity to ‘perform at least the four
basic demands of unskilled work[.]’” Id. at 25 (quoting T. at 66).
The ALJ concluded that “[t]o the extent that the reports and assessments of Drs.
Shapiro and Juriga are consistent with, at most, the above noted moderate ‘paragraph
B’ functional limitations and the specific work-related limitations set forth in the above
residual functional capacity,” “they are mutually supportive, consistent with the foregoing
treatment and clinical evidence, and not contradicted by any other medical source
opinions of record. I therefore find their assessments persuasive.” T. at 25
The ALJ stated that in reaching his RFC determination, he “carefully considered
the claimant’s own reports and allegations, which are partially, though not entirely,
consistent with the medical evidence. Certainly, the record documents a long history of
treatment for multiple mental health conditions that significantly limit the claimant’s
ability to perform basic work activities.” T. at 25. “However, to the extent that the
claimant asserts that these conditions have prevented her from performing any type of
substantial gainful activity on a sustained, consistent basis,” “her allegations are
undermined by her acknowledged, high functioning activities of daily living, inconsistent

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with the foregoing clinical and treatment evidence, and contradicted by the medical
opinion evidence of record.” Id.
Earlier in his decision, the ALJ reviewed plaintiff’s activities of daily living. See T.
at 23. The ALJ also explained that “most importantly, the weight of the medical
evidence of record supports, at most, the work-related limitations reflected in the above
residual functional capacity.” Id. “Treatment and examination records since just prior to
the application filing date document diagnoses of and subjective complaints secondary
to the above noted mental health conditions, but these records also repeatedly
document specific denials of mental health symptoms and normal clinical findings on
mini-mental status examination[.]” Id. (citing T. at (Exhibits 297-98, 381-82, 395, 397,
404-405, 505, 513).
The ALJ acknowledged that “[a] month prior to the application filing date, in
March 2018, the claimant presented to the emergency room with reports of worsening
depression and nightmares, including intermittent suicidal ideation while dreaming at
night.” T. at 23. “Despite her symptomatic picture, the claimant demonstrated ‘good
behavioral control’ throughout her visit and demonstrated entirely normal clinical
findings on detailed mental status examination apart from a subjectively reported mood
of ‘blah’ and a broad range affect from anxious to euthymic[.]” Id. (citing T. at 277, 28081). He also noted that “[a] subsequent report indicates that the claimant’s worsening
symptoms had occurred within the context of the claimant having ‘been off her
psychiatric medication for 4 months[.]’” Id. (citing T. at 311). Next, “[c]linical findings on
detailed mental status examination findings documented in subsequent reports are
similarly positive for mood and affect disturbance and, on one occasion, mildly impaired

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judgment but are otherwise entirely within normal limits[.]” Id. (citing T. at 314, 914-15,
920, 950-51, 963-64). Additionally, “[a] report dated December 6, 2018, two months
after the claimant finally resumed mental health treatment, indicates that the claimant
had still not started her prescribed medications or even picked them up from the
pharmacy[.]” Id. at 23 (citing T. at 1234). The ALJ stated that “[p]resumably, if the
claimant’s mental health conditions were as debilitating as alleged, she would have
been motivated to commence treatment earlier.” Id. at 23-24.
The ALJ’s RFC determination is supported by substantial evidence in his reliance
on plaintiff’s activities of daily living, treatment records, and Drs. Shapiro and Juriga’s
findings and conclusions. See Nicole M. E. o/b/o E.F., 2022 WL 3577114, at *6 (noting
that where the court in Collins v. Comm’r of Soc. Sec., No. 20-CV-4693, 2021 WL
3054964, *5 (E.D.N.Y. July 20, 2021), remanded the ALJ’s decision because of
“circular” reasoning, “the court in Collins did not solely rely on the[ ALJ’s] passing
statements for remand. The court also found that the ‘ALJ improperly rejected the
opinions of [the] plaintiff’s treating physicians as inconsistent with the record based on
cherry-picked evidence when, in fact, the opinions were largely consistent with each
other, medical evidence in the record, and [the] plaintiff’s own testimony.’”).
Plaintiff does not challenge the ALJ’s reliance on Dr. Juriga’s opinion or the
treatment notes reflecting “specific denials of mental health symptoms and normal
clinical findings on mini-mental status examination[,]” “good behavioral control[]” and
“normal clinical findings[.]” T. at 23-24. Plaintiff also does not challenge the ALJ’s
reliance on Dr. Shapiro’s findings, except for her contention that the ALJ did not account
for moderate limitations in sustaining concentration. See infra at 18-20. Despite the

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ALJ’s circular logic—comparing Dr. Shapiro’s opinion to the ALJ’s RFC determination—
the ALJ explicitly reviewed and relied on treatment records, medical opinions, and
plaintiff’s activities. Accordingly, his logic does not amount to reversible error as there is
substantial evidence in the record to support his RFC determination. See
Zacharopoulos v. Saul, 516 F. Supp. 3d 211, 220 (E.D.N.Y. 2021) (citations omitted)
(“[T]he findings of the Commissioner as to any fact, if supported by substantial
evidence, are conclusive, 42 U.S.C. § 405(g), and therefore, the relevant question is not
whether substantial evidence supports [the] plaintiff’s position, but whether ‘substantial
evidence supports the ALJ’s decision.’ This is a ‘highly deferential standard of
review.’”).
Next, plaintiff argues that the ALJ erred in considering Dr. Shapiro’s opinion
because the ALJ did not explain how the RFC accounted for moderate limitations in
concentrating, persisting, and sustaining an ordinary routine and pace, which Dr.
Shapiro opined. See Dkt. No. 14-1 at 11-12. Plaintiff asserts that the ALJ’s failure is
harmful because “if [p]laintiff were to be off task or absent at a rate greater than
employers would tolerate, even with a moderate limitation in these areas, a finding that
[p]laintiff was disabled would have been warranted.” Id. at 11-12. Plaintiff cites case
law supportive of the contentions that if the ALJ’s RFC determination conflicts a medical
opinion, or the ALJ chooses to adopt only portions of a medical opinion, he or she is
required to explain his or her reasoning. See id. at 10 (citing, inter alia, Jacob K. v.
Comm’r of Soc. Sec., No. 20-CV-825 (LJV), 2021 WL 4324379, at *3 (W.D.N.Y. Sept.
23, 2021); Mancuso-Rosner v. Comm’r of Soc. Sec., No. 17-CV-1019 (MJR), 2019 WL

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666944, at *4 (W.D.N.Y. Feb. 19, 2019); Rosalie L. v. Com’r of Soc. Sec., No. 20-CV740S, 2021 WL 4204982, at *4 (W.D.N.Y. Sept. 16, 2021)).
The Court agrees that “if the ALJ’s ‘RFC assessment conflicts with an opinion
from a medical source, the [ALJ] must explain why the opinion was not adopted.’”
Dioguardi v. Comm’r of Soc. Sec., 445 F. Supp. 2d 288, 297 (W.D.N.Y. 2006) (citation
omitted). Further, “when an ALJ credits only portions of a medical source opinion, the
ALJ must explain why other portions of the opinion were rejected.” Bleil v. Colvin, No.
3:15-CV-1492 (LEK/ATB), 2017 WL 1214499, at *6 (N.D.N.Y. Mar. 31, 2017).
However, here, the ALJ’s RFC determination does not conflict Dr. Shapiro’s opinion and
the ALJ did not credit only portions of Dr. Shapiro’s opinion.
At step four, the ALJ acknowledged that Dr. Shapiro opined moderate to marked
limitations in plaintiff’s ability to understand, remember, or apply complex directions and
instructions and regulate emotions, control behavior, and maintain well-being. See id.
at 24. He noted that Dr. Shapiro’s other findings were either moderate or mild to
moderate. See id. He then explained how he accommodated for the moderate to
marked limitations. See id. The ALJ did not explicitly state how he accommodated for
the moderate limitation in concentrating, persisting, or maintaining pace in his RFC
determination. See id. at 24-25. This does not, however, constitute reversible error.
First, courts have repeatedly concluded that an RFC that limits a plaintiff to
simple, routine work sufficiently accounts for moderate limitations in concentrating,
persisting, and maintaining pace. See Flake v. Comm’r of Soc. Sec., No. 7:15-CV-1128
(GTS/WBC), 2016 WL 7017355, at *11 (N.D.N.Y. Nov. 10, 2016) (citing Zabala v.
Astrue, 595 F.3d 402, 410 (2d Cir. 2010)) (“Any error the ALJ may have made in

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incorporating a moderate limitation in maintaining a schedule would be harmless. A
finding of moderate limitations in work related functioning does not necessarily preclude
the ability to perform unskilled work. The Second Circuit has held that moderate
limitations in work related functioning does not significantly limit, and thus prevent, a
plaintiff from performing unskilled work.”), report and recommendation adopted, No.
7:15-CV-1128, 2016 WL 7017396 (N.D.N.Y. Dec. 1, 2016); see also George v. Comm’r
of Soc. Sec., No. 1:19-CV-0812 (WBC), 2020 WL 5913423, at *7 (W.D.N.Y. Oct. 6,
2020) (“[A] finding of moderate limitations in mental functioning does not preclude the
ability to perform unskilled work.”); Vincent K.-B. v. Saul, No. 3:20-CV-157 (DJS), 2021
WL 535052, at *4 (N.D.N.Y. Feb. 12, 2021) (“[T]he assessment of Dr. Nobel that [the
p]laintiff has moderate limitations to his abilities in certain of these areas is not
necessarily inconsistent with Dr. Nobel’s RFC opinion[]” which limited the plaintiff to
“unskilled work.”).
Second, plaintiff does not point to any evidence that plaintiff would likely “be off
task or absent at a rate greater than employers would tolerate[.]” Dkt. No. 14-1 at 11.
Rather, she asserts that if plaintiff were to be off task or absent more than allowed, she
would need to be found disabled. See id. at 11-12. This conjecture is insufficient to
contradict the ALJ’s RFC determination. See Robert L. M. v. Berryhill, No. 8:18-CV0208 (GTS), 2018 WL 5313452, at *7 (N.D.N.Y. Oct. 26, 2018) (“[The p]laintiff points to
no evidence supporting his interpretation of these opinions, and, in particular, points to
no evidence substantiating the need for such extreme limitations. The evidence in the
record certainly does not support [the p]laintiff's interpretation of Dr. Oman’s marked
limitation as meaning [the p]laintiff is incapable of any decision-making; rather, the

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record is replete with examples of [the p]laintiff making decisions regarding his health,
daily life, and legal issues. As to the moderate limitations opined related to pace, [the
p]laintiff fails to cites any legal authority that such an opinion, if accepted, requires an
ALJ to specify the pace of work in order to account for that opinion.”); Bush v. Comm’r
of Soc. Sec., No. 7:16-CV-1007 (GTS), 2017 WL 4621096, at *8 (N.D.N.Y. Oct. 13,
2017) (citation omitted) (“[The p]laintiff fails to elucidate how the RFC fails to account for
Dr. Noia’s opinion. The only limitation that Dr. Noia rated as more than mild was the
moderate-to-marked limitation in the ability to deal with stress, and the ALJ appears to
have reasonably accounted for this limitation by limiting [the p]laintiff to semi-skilled
work with the ability to handle ‘simple work-related stress.’ [The p]laintiff does not
provide persuasive evidence as to why the ALJ should have interpreted the moderateto-marked limitation in a more limiting manner.”).
Further, “where ‘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.’” Petrie v. Astrue,
412 F. App’x 401, 407 (2d Cir. 2011) (summary order) (quoting Mongeur, 722 F.2d at
1040). As (1) the ALJ accurately relayed Dr. Shapiro’s opined limitations; (2) moderate
limitations in concentrating, persisting, and maintaining pace are not inconsistent with
the RFC to simple, routine work; and (3) there is no evidence in the record that
contradicts plaintiff’s ability to do simple, routine work, the Court finds no error in the
ALJ’s determination. This is further supported by the ALJ’s reliance on Dr. Juriga’s
opinion, which found that plaintiff had moderate limitations in concentrating, persisting,

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and maintaining pace, but she “retains the ability to perform at least the four basic
demands of unskilled work.” T. at 66; 24-25, 62. Plaintiff does not challenge the ALJ’s
reliance on Dr. Juriga’s opinion. See generally Dkt. No. 14-1. As the ALJ’s
determination is supported by substantial evidence, remand is not warranted on this
ground.
2. Whether the ALJ Appropriately Considered Plaintiff’s Subjective Complaints
Plaintiff argues that the ALJ erred in analyzing his subjective complaints for two
reasons: (1) the ALJ overemphasized plaintiff’s ability to perform self-care activities; and
(2) the ALJ failed to consider any good reasons for why plaintiff did not comply with her
mental health treatment. See Dkt. No. 14-1 at 12-14. The Commissioner argues that
“[t]he ALJ did not place an undue level of emphasis on [p]laintiff’s activities[.]” Dkt. No.
17 at 15. The Commissioner asserts that “[t]here is no per se rule that the ALJ cannot
consider lack of treatment in evaluating mental complaints[]” and that the ALJ’s
statements are supported by the record. Id. at 16.
In determining plaintiff’s RFC, the ALJ stated that plaintiff’s “noted impairments
are medically determinable and severe to the extent that they cause more than minimal
work-related limitations, but the evidentiary record as a whole is consistent with the
residual functional capacity set forth above and inconsistent with the degree of limitation
alleged.” T. at 22. He explained that “the claimant’s acknowledged activities of daily
living are higher functioning than one would expect given her allegations of disability
and are generally supportive of the above noted residual functional capacity.” Id. at 23.
The ALJ noted that plaintiff retained “the ability to dress, bathe, and groom herself, cook
and prepare food, do general cleaning, laundry, and other chores, go shopping in public

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stores (she reports she prefers to go accompanied or at night time),” “manage money,
ride in a taxi or get rides from friends, and get along well with friends and family[.]” Id.
(citing T. at 491). He also stated that “[i]n a work and social adjustment form she
completed in October 2018, the claimant reported that her ability to work is very
severely impaired but simultaneously admitted that her ability to perform home
management activities” “like cleaning, tidying, shopping, cooking, looking after children,
and paying bills, as well as her ability to perform leisure activities like reading, watching
television, gardening, craft work, walking, and sewing is only slightly impaired[.]” Id.
(citing T. at 903).
First, as to plaintiff’s contention that the ALJ erred in overemphasizing plaintiff’s
activities of daily living, the Court disagrees. See Dkt. No. 14-1 at 12. “An ALJ is
entitled to take a plaintiff’s activities of daily living into account in making a credibility
determination.” Pennock v. Comm’r of Soc. Sec., No. 7:14-CV-1524 (GTS/WBC), 2016
WL 1128126, at *5 (N.D.N.Y. Feb. 23, 2016), report and recommendation adopted,
2016 WL 1122065 (N.D.N.Y. Mar. 22, 2016). However, “engaging in basic activities
necessary to one’s welfare is markedly different from working full-time[.]” ClaudioMontanez v. Kijakazi, No. 21-2027, 2022 WL 17819123, at *6 (2d Cir. Dec. 20, 2022)
(summary order) (citing Rucker v. Kijakazi, 48 F.4th 86, 92 (2d Cir. 2022); Colgan v.
Kijakazi, 22 F.4th 353, 363 (2d Cir. 2022)).
Courts have remanded an ALJ’s decision where the ALJ placed undue weight on
the plaintiff’s activities of daily living as justification for the RFC determination. See
Pamela P. v. Saul, No. 3:19-CV-575 (DJS), 2020 WL 2561106, at *6 (N.D.N.Y. May 20,
2020) (“[T]he ALJ also appears to have placed considerable weight on his view that the

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restrictive opinions of [the p]laintiff’s mental status were inconsistent with her daily
activities. The Court disagrees that on this record that was a significant basis on which
to discount these opinions. The daily activities identified by the ALJ included [the
p]laintiff’s ability to dress, bathe, and groom herself, prepare meals, grocery shop,
provide childcare, and do laundry. There is no apparent connection between these
physical activities and [the p]laintiff’s mental functional abilities.”); Craig R. v. Berryhill,
No. 6:18-CV-0630 (LEK), 2019 WL 4415531, at *4 (N.D.N.Y. Sept. 16, 2019) (citation
and emphasis omitted) (“[W]hile [the p]laintiff admitted he has the ability to ‘cook four
times a week,’ ‘shop[ ] twice a month,’ and provide childcare ‘every day,’ the ALJ’s
‘heavy reliance on [the p]laintiff’s reported daily activities of self-care, child-care, and
hobbies does not provide a sufficient basis for discounting almost entirely the wellsupported expert testimony of licensed [physicians] regarding [the p]laintiff’s ability to
sustain a job.’”); Christopher B. v. Comm’r of Soc. Sec., No. 1:21-CV-01238 (EAW),
2023 WL 110117, at *9 (W.D.N.Y. Jan. 5, 2023) (“[T]he ALJ seems to have overstated
the nature of [the p]laintiff’s daily activities. The activities identified by the ALJ are not
particularly demanding or extensive, but instead consist of playing video games for up
to six hours a day, watching television, drawing, carrying groceries, helping his mother
as much as he can, performing his own personal care, and caring for his pet snakes.
[The p]laintiff does not drive or shop alone and reported limited contact with anyone
other than his mother, with nearly all of his interaction with other individuals solely
occurring online.”). But see Dawn T. v. Saul, No. 8:19-CV-619 (MAD), 2020 WL
1915259, at *8 (N.D.N.Y. Apr. 20, 2020) (“[T]he Court finds that ALJ did not err in her
reliance on [the p]laintiff’s activities of daily living in formulating her RFC determination[]”

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where the ALJ relied on the plaintiff ability to manage herself as relayed to the
consultative examiner).
This Court has also found reversible error where the ALJ relied on the plaintiff’s
activities of daily living in making the RFC determination but failed to recognize any
caveats to those activities that are clearly reflected in the record. See Robert T. S. v.
Comm’r of Soc. Sec., No. 5:21-CV-38 (CFH), 2022 WL 1746968, at *16 (N.D.N.Y. May
31, 2022) (citing Kelly W. v. Kijakazi, No. 3:20-CV-00948 (JCH), 2021 WL 4237190, at
*11 (D. Conn. Sept. 17, 2021); Paul G. v. Comm’r of Soc. Sec., No. 5:18-CV-1054
(TJM), 2020 WL 9848451, at *8-9 (N.D.N.Y. Mar. 17, 2020)) (“[T]he ALJ cannot justify
his decision by relying on [the] plaintiff’s activities of daily living ‘without taking account
of the caveats and limitations [ ]he consistently asserted.’”). But see Madelyn S. v.
Comm’r of Soc. Sec., No. 5:20-CV-1478 (DNH/ATB), 2022 WL 526233, at *7 (N.D.N.Y.
Jan. 27, 2022) (“Nor was the ALJ’s consideration of [the] plaintiff’s activities of daily
living improper when evaluating [the] plaintiff's subjective allegations. . . . The ALJ
clearly recognized that plaintiff was limited, to some extent, in her activities of daily
living, and considered this in conjunction with plaintiff's other reports . . . .”), report and
recommendation adopted, No. 5:20-CV-1478, 2022 WL 523743 (N.D.N.Y. Feb. 22,
2022).
Plaintiff argues that the ALJ erred in relying on plaintiff’s activities of daily living
such as cooking, grooming, cleaning, grocery shopping, and getting along with friends
and family because “[t]here is no evidence that [p]laintiff performs these activities on a
regular and continuing basis commensurate with substantial gainful activity. Rather,
[p]laintiff is able to perform these within the comfort of her own home when she is able.”

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Dkt. No. 14-1 at 14. Plaintiff does not point to any evidence in the record that indicates
that the ALJ mischaracterized plaintiff’s activities of daily living or ignored any caveats in
her ability to complete them. See id.; see also Dawn T., 2020 WL 1915259, at *8.
Further, the ALJ did not rely solely on plaintiff’s activities of daily living to find that her
“own reports and allegations . . . [were] partially, though not entirely, consistent with the
medical evidence.” T. at 25. Rather, the ALJ relied on Drs. Shapiro and Juriga’s
medical opinions and plaintiff’s treatment history and medical evidence. See id. at 2324; cf. Christian J. v. Comm’r of Soc. Sec., No. 6:18-CV-1004 (ATB), 2019 WL
6840130, at *9 (N.D.N.Y. Dec. 16, 2019) (explaining that in terms of weighing a medical
opinion, “the ALJ properly relied on [the] plaintiff’s activities as a factor in her overall
evaluation of the medical opinion evidence and in formulating plaintiff’s RFC.”); see
supra at 13-15 (explaining the ALJ’s reliance on Dr. Juriga’s opinion and the medical
evidence of record). Plaintiff does not challenge the ALJ’s consideration of any of
medical evidence, Dr. Juriga’s opinion, or most of Dr. Shapiro’s opinion. See generally
Dkt. No. 14-1. As the ALJ considered plaintiff’s activities of daily living in the context of
the entire record, remand is not warranted on this ground.
Second, as to plaintiff’s argument that the ALJ erred by failing to consider any
reasons for plaintiff’s non-compliance with mental health treatment, the Court agrees.
See Dkt. No. 14-1 at 14. However, the Court finds that any error is harmless. As an
initial matter, plaintiff cites Social Security Ruling (“SSR”) 96-7p to assert that the ALJ
was required to consider “any explanations” for plaintiff’s failure to pursue mental health
treatment. Dkt. No. 14-1 at 15 (quoting Titles II & Xvi: Evaluation of Symptoms in
Disability Claims: Assessing the Credibility of an Individual’s Statements, SSR 96-7P,

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1996 WL 374186, at *7 (S.S.A. July 2, 1996)). SSR 96-7p instructs an ALJ how to
consider a plaintiff’s “credibility.” SSR 96-7p, 1996 WL 374186, at *1. However, SSR
96-7p was superseded by SSR 16-3P in 2016, which was prior to the ALJ’s decision.
Thus, SSR 16-3P applies here. See Titles II & Xvi: Evaluation of Symptoms in Disability
Claims, SSR 16-3P, 2017 WL 5180304, at *1 (S.S.A. Oct. 25, 2017) (instructing the ALJ
to “apply SSR 16-3p when [he or she] make[s] determinations and decisions on or after
March 28, 2016. When a Federal court reviews our final decision in a claim, we also
explain that we expect the court to review the final decision using the rules that were in
effect at the time we issued the decision under review.”).
The primary difference in the Rulings is that under SSR 16-3P, the ALJ no longer
assesses a plaintiff’s “‘credibility’ and instead” is directed “to consider medical and other
evidence to evaluate the intensity and persistence of symptoms to determine how the
individual’s symptoms limit capacity for work[.]” SSR 16-3P, 2016 WL 1119029, at *1,
n.1 (S.S.A. Mar. 16, 2016). Otherwise, the Rulings instruct the ALJ to consider the
same factors in assessing a plaintiff’s alleged symptoms. Laura D. v. Comm’r of Soc.
Sec., No. 5:21-CV-445 (LEK/TWD), 2022 WL 4181570, at *4, n.4 (N.D.N.Y. Sept. 13,
2022) (“The standard for evaluating subjective symptoms has not changed in the
regulations.”), report and recommendation adopted, 2022 WL 4591841 (N.D.N.Y. Sept.
30, 2022).
Under SSR 16-3P, the ALJ “will consider an individual’s attempts to seek medical
treatment for symptoms and to follow treatment once it is prescribed when evaluating
whether symptom intensity and persistence affect the ability to perform work-related
activities for an adult . . . .” SSR 16-3P, 2017 WL 5180304, at *9. “[I]f the frequency or

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extent of the treatment sought by an individual is not comparable with the degree of the
individual’s subjective complaints, or if the individual fails to follow prescribed treatment
that might improve symptoms, [the ALJ] may find the alleged intensity and persistence
of an individual’s symptoms are inconsistent with the overall evidence of record.” Id.
However, an ALJ “will not find an individual’s symptoms inconsistent with the evidence
in the record on this basis without considering possible reasons he or she may not
comply with treatment or seek treatment consistent with the degree of his or her
complaints.” Id. The ALJ “may need to contact the individual regarding the lack of
treatment or, at an administrative proceeding, ask why he or she has not complied with
or sought treatment in a manner consistent with his or her complaints.” Id. (emphasis
omitted). The Ruling instructs an ALJ to “review the case record to determine whether
there are explanations for inconsistencies in the individual’s statements about
symptoms and their effects, and whether the evidence of record supports any of the
individual’s statements at the time he or she made them.” Id. at *10. In his or her
decision, the ALJ should “explain how [he or she] considered the individual’s reasons in
[his or her] evaluation of the individual’s symptoms.” Id.
“Courts in this Circuit have cautioned that it ‘is a questionable practice to chastise
one with a mental impairment for the exercise of poor judgment in seeking
rehabilitation.’” Brooks v. Comm’r of Soc. Sec., No. 6:17-CV-6614 (MAT), 2019 WL
493642, at *4 (W.D.N.Y. Feb. 8, 2019) (quoting Day v. Astrue, No. 07-CV-157, 2008 WL
63285, at *5 n. 6 (E.D.N.Y. Jan. 3, 2008); citing Cox v. Astrue, 993 F. Supp. 2d 169
(N.D.N.Y. 2012)); see also Kudrick v. Comm’r of Soc. Sec., No. 1:19-CV-1343 (WBC),
2020 WL 2933234, at *4 (W.D.N.Y. June 3, 2020) (remanding in part because “although

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an ALJ may find a plaintiff less credible if he fails to follow medical treatment, the ALJ is
obligated to consider any explanation a plaintiff may have for the failure. [T]he ALJ
failed to consider any explanation for [the p]laintiff’s failure to quit smoking.”).
Under both SSR 97-7p and SSR 16-3P, courts have held that an “ALJ’s failure to
consider [a] plaintiff’s explanation[ ] [can] be harmless error, [where the] plaintiff’s
noncompliance was but one of several factors considered when assessing [the]
plaintiff’s credibility.” Gonzalez v. Berryhill, No. 3:17-CV-1385 (SALM), 2018 WL
3956495, at *6 (D. Conn. Aug. 17, 2018); see also Waldvogel v. Comm’r of Soc. Sec.,
No. 6:16-CV-0868 (GTS), 2017 WL 3995590, at *11 (N.D.N.Y. Sept. 11, 2017)
(“Whether or not some of the ALJ’s reasons for the credibility finding are unsupported or
erroneous, any such errors would be harmless since the ALJ provided other proper
reasons that are supported by substantial evidence for that finding. . . . [B]ecause the
ALJ has provided multiple reasons supported by substantial evidence, the credibility
assessment must be upheld and remand is not warranted on this basis.”); Feliciano
Velez v. Berryhill, No. 3:18-CV-01101 (SALM), 2019 WL 1468141, at *10, n.6; *12 (D.
Conn. Apr. 3, 2019) (applying SSR 16-3P and concluding that “[i]t is not apparent [] that
the ALJ considered [the] plaintiff’s explanation for failing to comply with the referral to
see an orthopedist. . . . [However,] because the ALJ’s consideration of plaintiff's noncompliance with treatment recommendations was but one factor in the ALJ’s overall
credibility determination, which, as will be discussed, complies with the Regulations and
is supported by substantial evidence, there is no reversible error.”); accord Raymond Q.
v. Saul, No. 5:18-CV-544 (FJS/CFH), 2019 WL 4758269, at *6 (N.D.N.Y. Aug. 7, 2019),

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report and recommendation adopted sub nom. Raymond Q. v. Comm’r of Soc. Sec.,
2019 WL 4757316 (N.D.N.Y. Sept. 30, 2019).
Here, in determining plaintiff’s RFC, the ALJ stated that “[a] subsequent report
indicates that the claimant’s worsening symptoms had occurred within
the context of the claimant having ‘been off her psychiatric medication for 4 months[.]’”
T. at 23 (citing T. at 311). The report indicated that in May 2018, plaintiff “reported that
[in March] she had been off her psychiatric medication for 4 months. The pt reported
that she had been in treatment but stopped going to treatment around August and then
she ran out of her medication in December and things have gotten progressively worse
since December.” Id. at 311. Plaintiff identifies two records from March 2018 which
state that plaintiff was “[o]ff meds x 4 months r/t lapse of insurance[]” and she reported
“that that her symptoms started to worsen 4 months ago. She reports moving form
Oswego County to Monroe County at that time. . . . After arriving to Monroe County []
her insurance and other benefits did not immediately transfer.” Id. at 271, 277; see also
Dkt. No. 14-1 at 15. One report stated that plaintiff “recently obtained insurance specific
to Monroe County, however, and is eager to get connected to mental health services.
Over these past four months, she reports that her depression gradually worsened . . . .”
T. at 277.
The ALJ did not consider plaintiff’s lack of insurance and moving to another
location as a potential reason for her failure to be on medication for four months. See T.
at 23. A plaintiff’s inability to afford treatment is one of the examples explicitly set forth
in SSR 16-3P as a potential reason why a plaintiff’s treatment history might not be
consistent with her or her subjective complaints. See SSR 16-3P, 2017 WL 5180304, at

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*10 (“An individual may not be able to afford treatment and may not have access to free
or low-cost medical services.”); see also Bernadel v. Comm’r of Soc. Sec., No. 14-CV05170 (PKC), 2015 WL 5719725, at *14 (E.D.N.Y. Sept. 29, 2015) (citations omitted)
(“Courts in this Circuit have observed that a claimant’s credibility regarding her
impairments should not be discounted for failure to obtain treatment she could not
afford[.]”); David F. v. Comm’r of Soc. Sec. Admin., No. 3:21-CV-00315 (SALM), 2021
WL 5937670, at *9 (D. Conn. Dec. 16, 2021) (remanding where the ALJ did not
consider the plaintiff’s failure to pursue certain treatment “due to financial constraints.”).
The ALJ also noted that a December 2018 report indicated that “two months after
the claimant finally resumed mental health treatment, . . . the claimant had still not
started her prescribed medications or even picked them up from the pharmacy[.]” T. at
23 (citing T. at 1234). He stated that “[p]resumably, if the claimant’s mental health
conditions were as debilitating as alleged, she would have been motivated to
commence treatment earlier.” Id. at 23-24. Plaintiff contends that this “ignores any
reasons behind [p]laintiff’s failure to treat – including considering whether [p]laintiff’s
mental health, which she reported were worsened at that time, contributed to this lack of
treatment.” Dkt. No. 14-1 at 15-16 (citing T. at 23-24, 912-17). Plaintiff points to a
record from October 2018 which reflects that plaintiff’s anxiety and depression had been
“worse over the past few months[]” as a potential reason for why she had not picked up
or restarted her medication. T. at 912; see also Dkt. No. 14-1 at 15-16. The ALJ did not
consider whether plaintiff’s mental health may have been a reason for her failure to
maintain or comply with her treatment.

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The Court does not condone the ALJ discounting plaintiff’s subjective complaints
because she did not seek treatment in the time frame that the ALJ thought was
appropriate. See T. at 23-24. This is explicitly advised against in the Social Security
Rulings. See SSR 16-3P, 2017 WL 5180304, at *9-10; see also Petersen v. Astrue, 2
F. Supp. 3d 223, 236 (N.D.N.Y. 2012) (“[F]aulting a person with a diagnosed mental
illness for failing to pursue mental health treatment is a ‘questionable practice.’”);
Volkow v. Comm’r of Soc. Sec., No. 1:18-CV-6602 (FB), 2020 WL 5211041, at *2
(E.D.N.Y. Sept. 1, 2020) (“[T]he most troubling aspect of the ALJ’s opinion is his
repeated criticism of plaintiff for not seeking psychiatric help sooner. This is an
inappropriate basis to discount a claimant’s mental illness and is beyond the scope of
the ALJ’s duties. There are myriad reasons why individuals do not seek treatment
despite debilitating mental impairments: the excessive cost of treatment, the stigma
associated with mental illness, the side effects of psychiatric medications . . . .”); accord
Sarah B. W. v. Kijakazi, No. 8:21-CV-50 (TWD), 2022 WL 16734988, at *11 (N.D.N.Y.
Nov. 7, 2022); see Johnson v. Colvin, No. 1:14-CV-00353 (MAT), 2016 WL 624921, at
*2, n.1 (W.D.N.Y. Feb. 17, 2016) (“Rather than indicating a lack of a serious mental
impairment, [the] plaintiff’s noncompliance was very possibly a further indicator that her
mental health impairments interfered with her functioning.”).
However, where the ALJ’s determination is otherwise supported by substantial
evidence, the Court must affirm the decision. See Snyder v. Colvin, 667 F. App’x 319,
320 (2d Cir. 2016) (summary order) (affirming the district court’s decision to affirm the
Commissioner’s decision because although “the ALJ did not consider any reasons why
the plaintiff did not seek ‘formal mental health treatment[,]’” “the lack of formal mental

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health treatment was just one of multiple factors considered in assessing the plaintiff's
credibility, including that [the plaintiff’s] allegations were unsupported by objective
medical evidence, and so any error was harmless.”); see also David F., 2021 WL
5937670, at *9 (“The Court is aware that in some instances, an ALJ's failure to consider
reasons for a plaintiff’s conservative treatment may amount to harmless error, if other
reasons were considered by the ALJ in making the credibility determination and those
reasons are supported by substantial evidence.”). Here, the ALJ’s determination
concerning plaintiff’s subjective complaints is supported by other substantial evidence—
treatment examination findings, her activities of daily living, and Dr. Shapiro and Juriga’s
opinions. See T. at 23-25. Thus, the Court is required to affirm the ALJ’s decision. See
Tasha S. v. Comm’r of Soc. Sec., No. 20-CV-421 (FPG), 2021 WL 3367588, at *7
(W.D.N.Y. Aug. 3, 2021) (quoting Jackson v. Astrue, No. 05-CV-1061 (NPM), 2009 WL
3764221, at *7 (N.D.N.Y. Nov. 10, 2009)) (“‘[T]he court must uphold the ALJ’s decision
to discount a claimant’s subjective complaints of pain’ if the finding is supported by
substantial evidence.”); see also Gonzalez, 2018 WL 3956495, at *15; Waldvogel, 2017
WL 3995590, at *11; Raymond Q., 2019 WL 4758269, at *6. Accordingly, remand is not
warranted on this ground.
B. Hearing Transcript
Plaintiff argues that “[n]o meaningful review of the vocational expert testimony in
this case can be conducted because the transcript of the July 2020 hearing appears to
be incomplete, as it abruptly ends during the vocational expert’s testimony[.]” Dkt. No.
14-1 at 16. Plaintiff asserts that remand is required because “it is unclear whether the
ALJ fully and properly accounted for the vocational expert’s testimony, it is unclear

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whether [p]laintiff provided any additional testimony, it is unclear whether the ALJ made
any additional statements, and it is unclear whether the resulting determination was
based on substantial evidence.” Id. at 17.
The Commissioner argues that “[p]laintiff does not directly challenge the ALJ’s
step five finding or reliance on the vocational expert’s testimony at step five, but instead
argues that something more may have happened during the hearing because it did not
end in the usual way[.]” Dkt. No. 17 at 18. The Commissioner asserts that plaintiff’s
“argument is purely speculative, and [p]laintiff fails to show how this alleged omission
disadvantaged or harmed her.” Id.
Plaintiff cites a case that remanded an ALJ’s decision partly because “[t]he
transcript of the administrative hearing contain[ed] several inaudible insertions within the
testimony of the VE in response to hypothetical questions proposed by the ALJ.”
Wislon v. Astrue, No. 08-CV-00007, 2009 WL 793039, at *16 (W.D. Pa. Mar. 24, 2009);
see also Dkt. No. 14-1 at 17. The court concluded that “[t]hese omissions may be
pertinent to the RFC determination by the ALJ. The court is unable to assess properly
the weight the ALJ gave to the VE’s responses in his determination of [the] plaintiff’s
RFC and subsequent steps of the analysis in light of the inaudible portions of the
transcript.” Wislon, 2009 WL 793039, at *16. However, in that case the plaintiff argued,
in part, that “the ALJ erred in the characterization of [the] plaintiff’s RFC because . . . the
hypothetical question relied upon by the ALJ did not reflect the specific
capacity/limitations established by the administrative record.” Id. at *12. Here, plaintiff
does not challenge the hypothetical that was presented to the vocational expert during
the hearing or the ALJ’s step-five conclusion. See Dkt. No. 14-1 at 16-17.

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“Where the administrative record is incomplete on a dispositive factual issue, the
appropriate course of action is to remand the case to the Secretary for a new hearing.”
Parks v. Astrue, No. 1:10-CV-01955 (GSA), 2011 WL 6211003, at *8, n.8 (E.D. Cal.
Dec. 14, 2011) (citing Bailey v. Heckler, 576 F. Supp. 621 (D.D.C. 1984)). When
determining whether remand is appropriate based on an incomplete record, courts will,
among other things, look to the length of the administrative transcript. See Rodriguez v.
Apfel, No. 96-CV-1132 (LBS), 1997 WL 691428, at *6 (S.D.N.Y. Nov. 4, 1997)
(explaining that the transcript was nine pages long and “[w]hile the length of the
transcript is not dispositive, the ALJ’s interview . . . is insufficient to sustain a finding that
the ALJ’s disability determination was based on an adequately developed record.”); see
also Rivera v. Barnhart, 379 F. Supp. 2d 599, 606 (S.D.N.Y. 2005) (“The ALJ missed
his opportunity in the meager eighteen page hearing transcript to fully develop the
record regarding the functional effects and nonexertional limitations of [the plaintiff’s]
impairment.”); Crespo v. Barnhart, 293 F. Supp. 2d 321, 324-25, n.3 (S.D.N.Y. 2003)
(remanding where the hearing lasted ten minutes and the transcript was nine pages).
Similarly, courts have remanded where the hearing transcript contained
numerous “inaudible” sections, making adequate judicial review difficult, if not
impossible. Bula v. Comm’r of Soc. Sec., No. 6:06-CV-1325 (GLS/GJD), 2009 WL
890665, at *9 (N.D.N.Y. Mar. 30, 2009) (“The transcript has dozens of ‘(INAUDIBLE)’
sections, and it is unclear whether the missing inaudible portions are simply one word or
phrases or sentences. . . . There are significant sections of answers from the plaintiff
that are mostly or totally inaudible, and this court cannot adequately review [the]
plaintiff’s testimony based on the quality of the transcript produced from the hearing.

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While the ALJ may have heard plaintiff's testimony, the transcript of that testimony is
insufficient and does not allow for an accurate review by this court.”); see also Parks,
2011 WL 6211003, at *8 (remanding because “this Court counted four inaudible
portions of the transcript during [the p]laintiff’s testimony, twenty-two inaudible portions
of the transcript containing the VE’s testimony, and four other inaudible portions in the
transcript of the administrative proceeding.”).
However, as the Commissioner states, courts have refused to remand an ALJ’s
decision because of missing pages where the plaintiff failed to prove any prejudice
stemming therefrom. See Dkt. No. 17 at 18 (citing Pokluda v. Colvin, 1:13-CV-335
(GLS/ESH), 2014 WL 1679801, at *5 (N.D.N.Y. Apr. 28, 2014) (footnote omitted)
(explaining that “[i]ncomplete administrative transcripts, however, do not warrant
automatic reversals on constitutional or other grounds. The test is not whether the
Commissioner has provided counsel with everything counsel might desire, but whether
the transcript that remains before the court permits meaningful or informed review. [The
plaintiff] fails to identify even one part of the transcript that is inaccurate or incomplete
and/or how any part of the hearing responses or ‘inaudibles’ actually disadvantaged her.
Hence, on its face, she cannot assert a violation of any constitutional right.”)); see also
Sherry L. v. Comm’r of Soc. Sec., No. 20-CV-01432, 2022 WL 2180159, at *4
(W.D.N.Y. June 16, 2022) (affirming the ALJ’s decision despite “the transcript denot[ing]
testimony as ‘inaudible’ in at least 50 spots but the majority of those classifications were
clarified by surrounding testimony or re-asking of questions[]” because the “[p]laintiff did
not identify any areas of ‘inaudible’ testimony that were consequential or critical to the
ALJ’s decision.”).

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Here, the hearing lasted approximately forty-five minutes and the transcript is
twenty-one pages long and includes testimony from plaintiff and a VE. See T. at 32-54.
The transcript ends with the following exchange between the ALJ and the VE:
Q: [L]et’s take someone similarly situated to the claimant and born in 1992
and thus would be a younger aged person, has limited education and the
same past work as the claimant or lack of past work, are there any
unskilled jobs that this individual could do?
A: Yes. Give me a moment. Three options, packing line worker, 753.687038, light, SVP of 2, approximately 663,000 jobs in the occupational
group; presser, 363.685-018, light, SVP of 2, approximately 25,000 jobs;
and cleaner, 323.687-014, light, SVP of 2, approximately 547,000 jobs in
the occupational group in the national economy.
Q: What is the employer tolerance for time off task?
A: Between 10% and 15% off.
(The hearing closed at 11:26 a.m., on July 17, 2020.)
Id. at 53-54.
The ending of the hearing is abrupt, and the transcript does not reflect any
closing remarks from the ALJ. See T. at 54. However, plaintiff does not challenge the
VE’s testimony, the ALJ’s consideration of the VE testimony, or the ALJ’s step-five
conclusion. See Dkt. No. 14-1 at 16-17. The plaintiff has not explained how the abrupt
ending impacts a dispositive issue. See Parks, 2011 WL 6211003, at *8, n.8 (collecting
cases). Rather, she presents only conjecture, stating that it is possible but unclear as to
whether there was additional testimony from plaintiff or the VE, or questions from the
ALJ. See Dkt. No. 14-1 at 17. As such, plaintiff has not shown prejudice by the
seemingly odd or abrupt ending of the transcript. See Williams v. Barnhart, 289 F.3d
556, 558 (8th Cir. 2002) (per curiam) (citation omitted) (explaining that the plaintiff gives
no indication what material facts were supposedly omitted or how any missing portion of
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the transcript could bolster her case. . . . The remaining omissions are small gaps in the
transcript that do not ‘interfere with comprehension of the testimony to an extent that
would hinder fair review.’”). Rather, the ALJ received testimony from plaintiff and the
VE and the hypothetical that the ALJ presented to the VE is identical to his RFC
determination. See T. at 34-54; see also Mark E. v. Kijakazi, No. 8:20-CV-425 (FJS),
2021 WL 4168590, at *10 (N.D.N.Y. Sept. 14, 2021) (concluding that a one word
omission in the hearing transcript did not constitute prejudicial error because “[i]t is
possible that the omitted word in the ALJ's question deviated from her functional
capacity findings and, thus, that the vocational expert answered questions that were not
relevant to [the p]laintiff. However, there is no reason to believe that the ALJ deviated
from her RFC determination.”). As the Court has determined that the ALJ’s RFC
determination is supported by substantial evidence and plaintiff has not shown prejudice
by the abrupt ending to the administrative transcript, remand is not warranted on this
ground.

VI. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby:
ORDERED, that the Commissioner’s decision is AFFIRMED; and it is further
ORDERED, that the Commissioner’s motion for judgment on the pleadings (Dkt.
No. 17) is GRANTED, and plaintiff’s motion for judgment on the pleadings (Dkt. No. 14)
is DENIED; and it is further

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ORDERED, that the Clerk of the Court serve copies of this MemorandumDecision and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: January 18, 2023
Albany, New York

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