Marshall v. Commissioner of Social Security

Filing 16

DECISION and ORDER re # 1 Complaint that the decision of the Commissioner is REVERSED AND REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings consistent with this Decision and Order and it is further ORDERED that the Clerk provide a copy of this Decision and Order to the parties in accordance with the Local Rules of the Northern District of New York. IT IS SO ORDERED. Signed by Magistrate Judge Therese Wiley Dancks on January 10th, 2022. (gmd, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
KATHLEEN M.,
Plaintiff,
v.

8:20-cv-1040 (TWD)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________________
APPEARANCES:

OF COUNSEL:

CONBOY, MCKAY LAW FIRM
Counsel for Plaintiff
407 Sherman Street
Watertown, NY 13601

VICTORIA H. COLLINS, ESQ.

SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
Counsel for Defendant
J.F.K. Federal Building, Room 625
15 New Sudbury Street
Boston, MA 02203

TIMOTHY SEAN BOLEN, ESQ.

THÉRÈSE WILEY DANCKS, United States Magistrate Judge
DECISION AND ORDER
Kathleen M. (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a final decision of the Commissioner of Social Security (“Defendant” or
“Commissioner”) denying her requests for disability and supplemental security benefits. (Dkt.
No. 1.) This case has proceeded in accordance with General Order 18 of this Court. Pursuant to
28 U.S.C. § 636(c), the parties consented to the disposition of this case by a Magistrate Judge.
(Dkt. No. 4.) Both parties filed briefs. (Dkt. Nos. 11, 14.) For the reasons set forth below, the
matter is reversed and remanded for further administrative proceedings.

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I.

BACKGROUND
Plaintiff was born in 1963 and has a master’s degree in education. (T. at 36-39, 161,

185.1) After working for eight years as a language instructor, Plaintiff was fired. Id. at 45-46,
427. She subsequently began working as an administrative assistant but struggled to meet her
supervisor’s expectations. Id. at 42, 302, 435, 438, 440, 454. Despite transferring to another
department, Plaintiff continued to struggle. Id. at 43, 49-50, 305, 355, 443. Plaintiff’s
psychologist, Dr. Brenda Greene, PhD., and psychiatrist, Dr. Mariam H. Asar, recommended
several medical leaves of absence. Id. at 29, 50, 302, 305-306, 443-45, 458, 463-68. After
taking medical leave, Plaintiff stopped working on November 13, 2017. Id. at 184, 444.
Plaintiff filed for disability insurance and supplemental security income on December
27th and 29th, 2017, respectively. Id. at 161, 165. Plaintiff claimed the following disabilities:
acid reflux, dysthymia, attention deficit hyperactivity disorder, atypical depression, general
anxiety, social anxiety, panic, fatigue, chronic migraines, gastroesophageal reflux disease, and
obesity. Id. at 184. The Commissioner denied Plaintiff’s initial application, and she requested a
hearing before an Administrative Law Judge (“ALJ”). Id. at 94, 104. ALJ Jennifer Smith held a
hearing on June 11, 2019, and Plaintiff testified along with vocational expert David Festa. Id. at
33-63. The ALJ denied Plaintiff’s claim for benefits on July 3, 2019, and the Appeals Council
denied Plaintiff’s request for review on July 7, 2020. Id. at 1, 11-21. Plaintiff now seeks this
Court’s review. (Dkt. No. 1.)

1

The Administrative Transcript is found at Dkt. No. 10. Citations to the Administrative
Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein
will be used rather than the page numbers the Court’s CM/ECF electronic filing system assigns.
Page references to other documents identified by docket number are to the page numbers
assigned by the Court’s CM/ECF electronic filing system.
2

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II.

STANDARD OF REVIEW2
In reviewing a final decision of the Commissioner, courts must first determine whether

the correct legal standards were applied, and if so, whether substantial evidence supports the
decision. Atwater v. Astrue, 512 F. App’x 67, 69 (2d Cir. 2013) (citing Tejada v. Apfel, 167 F.3d
770, 773 (2d Cir. 1999)); see also Brennan v. Colvin, No. 13-CV-6338 AJN RLE, 2015 WL
1402204, at *10 (S.D.N.Y. Mar. 25, 2015).3 “Failure to apply the correct legal standards is
grounds for reversal.” Pollard v. Halter, 377 F.3d 183, 188-89 (2d Cir. 2004). Accordingly, the
reviewing court may not affirm the ALJ’s decision if it reasonably doubts whether the proper
legal standards were applied. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
If the ALJ applied the correct legal standards, the reviewing court must determine
whether the ALJ’s decision is supported by substantial evidence. Tejada, 167 F.3d at 773;
Bowen, 817 F.2d at 985. “Substantial evidence means more than a mere scintilla.” Sczepanski v.
Saul, 946 F.3d 152, 157 (2d Cir. 2020). “It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id.; see also Richardson v. Perales, 402 U.S.
389, 401 (1971). If the ALJ’s finding as to any fact is supported by substantial evidence, it is
conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995).

“Since the standards for determination of disability and for judicial review in cases under 42
U.S.C. § 423 and 42 U.S.C. § 1382c(a)(3) are identical, decisions under these sections are cited
interchangeably.” Donato v. Sec’y of Dep’t of Health & Hum. Servs. of U.S., 721 F.2d 414, 418
n.3 (2d Cir. 1983). Moreover, “[t]he regulations that govern the two programs are, for today’s
purposes, equivalent.” Smith v. Berryhill, 139 S. Ct. 1765, 1772 (2019). Rather than cite to
relevant regulations under both 20 C.F.R. § 404.1501 et seq. (governing disability insurance) and
20 C.F.R. § 416.901 et. seq. (governing supplemental security income), the Court will cite to the
disability insurance regulations. See, e.g., Sims v. Apfel, 530 U.S. 103, 107 n.2 (2000).
2

3

Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks,
emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157
n.4 (2d Cir. 2020).
3

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When inadequacies in the ALJ’s decision frustrate meaningful review of the substantial
evidence inquiry, remand may be appropriate. Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir.
2019); Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996). Remand may accordingly be appropriate
where the ALJ has failed to develop the record, Klemens v. Berryhill, 703 F. App’x 35, 38 (2d
Cir. 2017); Rosa v. Callahan, 168 F.3d 72, 82 (2d Cir. 1999), adequately appraise the weight or
persuasive value of witness testimony, Estrella, 925 F.3d at 98; Burgess v. Astrue, 537 F.3d 117,
130 (2d Cir. 2008), or explain her reasoning, Klemens, 703 F. App’x at 36-38; Pratts, 94 F.3d at
39.
III.

DISCUSSION
The ALJ denied Plaintiff’s request for benefits because she determined Plaintiff could

perform jobs that existed in sufficient numbers in the national economy. (T. at 21.) Plaintiff
now challenges the ALJ’s findings and conclusions concerning her mental residual functional
capacity. Compare id. at 17 with Dkt. No. 11. This review accordingly focuses on evidence
pertinent to the ALJ’s evaluation of Plaintiff’s mental residual functional capacity.
A.

The ALJ’s Evaluation of Medical Opinion Evidence
1.

Medical Opinions

On February 6, 2018, state agency psychiatrist Dr. James Alpert issued an opinion on
Plaintiff’s medically determinable impairments and her mental residual functional capacity. (T.
at 68-69, 72-75.) Based on his review of Plaintiff’s medical records,4 Dr. Alpert concluded
Plaintiff had five medically determinable impairments: (i) obesity; (ii) migraine; (iii) depressive,

Dr. Alpert’s medical opinion appears to be based upon his review of medical records from the
following sources: Massena Memorial Hospital; Brenda Greene, PhD; Dr. Mariam Asar; CPH
Potsdam Primary Care; Canton Potsdam Hospital; and Jeffrey S. Aronowitz. (T. at 66-67, 7374.) The Disability Determination Explanation does not clarify the dates of those medical
records. See id.
4

4

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bipolar and related disorders; (iv) anxiety and obsessive-compulsive disorders; and (v) attention
deficit/hyperactivity disorder. Id. at 68-69. Dr. Alpert further concluded these impairments
could reasonably be expected to produce Plaintiff’s symptoms, and her statements concerning
the location, duration, intensity, and frequency of those symptoms were “Partially Consistent”
with the medical and non-medical evidence on record. Id. at 70.
Dr. Alpert summarized the case notes from Plaintiff’s psychologist and psychiatrist (Drs.
Greene and Asar, respectively), noting Plaintiff’s mental health diagnoses, her admission to the
emergency room in 2014 for suicidal ideation, her ongoing attempts to find the right medications
and treatment, and that she “has no[t] had any serious decompensations or psychiatric
hospitalizations recently.” Id. at 73-74. Dr. Alpert also summarized issues related to Plaintiff’s
mental health issues, including bankruptcies, divorces, failed relationships, and struggles at
work. Id. Based on his review of “[t]he totality of the data on file,” Dr. Alpert concluded
Plaintiff could “understand and carry out work tasks and procedures with an adequate level of
persistence and pace, relate adequately with others and adapt to changes on the job adequately.”
Id. at 74. More specifically, Dr. Alpert concluded Plaintiff had no limitations in her
understanding and memory, her ability for social interaction, and her ability to adapt. Id. at 7273.5 According to Dr. Alpert, no medical opinion was more restrictive than his. Id. at 75.

Dr. Alpert concluded Plaintiff was “Not significantly limited” in her ability to: (i) “carry out
very short and simple instructions,” (ii) “carry out detailed instructions,” (iii) “sustain an
ordinary routine with special supervision,” (iv) “work in coordination with or in proximity to
others without being distracted by them,” and (v) “make simple work-related decisions.” (T. at
72-73.) Dr. Alpert also concluded Plaintiff was “Moderately limited” in her ability to: (i)
“maintain attention and concentration for extended periods;” (ii) “perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances;” and (iii)
“complete a normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods.” Id. at 73.
5

5

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Dr. Greene’s first medical opinion, dated January 15, 2018, is such an opinion. See id. at
393-95.6 At the outset of her medical opinion, Dr. Greene indicated that she treated Plaintiff
once every two weeks for over 20 years. Id. at 393. Dr. Greene explained why she diagnosed
Plaintiff with dysthymic disorder, major depressive disorder, and attention deficit/hyperactivity
disorder. Id. She then summarized Plaintiff’s clinical course, medications, current symptoms,7
mental status,8 activities of daily living,9 and ability to function in a work setting.10 Id. at 39394. Dr. Green noted that although Plaintiff reported suicidal ideation, she had “no current
intent,” she agreed to “maintain a safety plan,” and “[h]as a teenage son at home that she wants
to live for.” Id. at 394.
Based upon this information, Dr. Greene opined that Plaintiff was limited in her ability
to: (i) understand and remember things; (ii) follow simple or detailed instructions, follow

Dr. Greene’s medical opinion from January 15, 2018, appears in just three pages in the
transcript. (T. at 393-95.) However, each page indicates that it is one of nine faxed pages. Id.
The transcript only includes pages four through six of the nine-page faxed document containing
Dr. Greene’s January 15, 2018, medical opinion. Id.
6

7

High levels of depressed mood, lethargy, weepiness, anhedonia; poor concentration, judgment,
problem-solving skills, sleep; fatigue; lack of motivation; indecisiveness; cannot get out of bed in
the morning; anxiety; and panic. (T. at 393.)
8

Attitude: negative, worried; Behavior: low energy, sedentary; Thought: preoccupied with
current life situation, inability to work, money woes, relationship woes; Mood: sad; Affect: sad
and anxious; Attention: limited, gets distracted, loses train of thought; Concentration: limited,
can’t do simple things at the house, forgetful; Information: seems confused and forgetful more
easily; Ability to perform calculations, serial sevens, etc.: at times, [within normal limits] and at
other times, fumbles for answer. (T. at 393-94.)
Patient had difficulty getting out of bed. Doesn’t shower daily. Wears pajamas all day.
Stressed by Christmas activities—no energy to get the boxes of decorations, teenage son did the
tree. No outdoor decorations put up this year (a big change). Cooks minimally. Attempts to
clean but gets overwhelmed and stops and cries. No hobbies. (T. at 394.)
9

10

Patient showed poor concentration at work. Could not get to work on time. Formally
reprimanded by her boss. Poorly organized at work, staying late to finish daily tasks.
Uncomfortable around work peers, increased anxiety, social phobia. (T. at 394.)
6

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schedules, work with others, follow a reasonable pace, sustain ordinary routine without
supervision, and maintain customary attendance and punctuality; (iii) interact with the public,
ask simple questions, accept supervisory instructions, get along appropriately with co-workers,
adhere to basic neatness and cleanliness; and (iv) respond appropriately to changes in the work
setting, be aware of hazards, travel/use public transportation, set realistic goals, and make plans
independently. Id. at 394-95. Dr. Greene provided reasoning for each of these conclusions. See
id.
Dr. Greene issued her second medical opinion on December 13, 2018. Id. at 452-53.11
Dr. Green concluded Plaintiff had “No useful ability to function” in her capacity to perform six
categories of mental skills,12 she was “Unable to meet competitive standards” in six categories of
mental skills,13 and she was “Seriously limited, but not precluded” in four categories of mental
skills.14 Id. at 452. Dr. Greene provided explanations for each of these conclusions, adding that

This form, titled “Medical Opinion RE: Ability to do Work-Related Activities (Mental)”
appears in two pages of the transcript. (T. at 453-53.) Each page indicates that it is one of four
faxed pages. Id. The transcript includes pages three and four of the four-page faxed document.
Id.
11

The “No useful ability to function” skills include the ability to: (i) maintain regular attendance
and be punctual within customary, usually strict tolerances; (ii) work in coordination with or
proximity to others without being unduly distracted; (iii) accept instructions and respond
appropriately to criticism from supervisors; (iv) get along with co-workers or peers without
unduly distracting them or exhibiting behavioral extremes; (v) respond appropriately to changes
in a routine work setting; and (vi) deal with normal work stress. (T. at 452.)
12

The “Unable to meet competitive standard” skills include the ability to: (i) remember worklike procedures; (ii) maintain attention for a two-hour segment; (iii) make simple work-related
decisions; (iv) complete a normal workday and workweek without interruptions from
psychologically based symptoms; (v) perform at a consistent pace without an unreasonable
number and length of rest periods; and (vi) ask simple questions or request assistance. (T. at
452.)
13

The “Seriously limited, but not precluded” skills include the ability to: (i) understand and
remember very short and simple instructions; (ii) carry out very short and simple instructions;
(iii) sustain an ordinary routine without special supervision; and (iv) be aware of normal hazards
and take appropriate precautions. (T. at 452.)
14

7

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Plaintiff “has shown a recalcitrant depression with severe anxiety, coupled with self-doubt and
low self-confidence.” Id. at 453. Dr. Greene further noted that Plaintiff “is a very poor manager
of time,” she is “unable to get to work on time,” and she was likely to miss more than four days
of work a month due to her impairments. Id.
2.

Other Medical Evidence

Plaintiff’s remaining medical records demonstrate the various ways her mental health
issues impacted her life. For example, on October 1, 2019, Plaintiff’s psychiatrist Dr. Asar wrote
a letter wherein she summarized Plaintiff’s symptoms, catalogued her daily activities, and
identified “work related issues related to [Plaintiff’s] mental illness.” Id. at 29. Dr. Asar
explained Plaintiff was “late for work daily, missed 33 days of work in 2016, and missed 61 days
of work in 2017 due to anxiety and panic attacks.” Id. Dr. Asar further explained Plaintiff “was
prescribed 3 medical leaves for her mental diagnoses,” she “was unable to properly complete her
job related tasks . . . due to anxiety of speaking to others,” she “struggled with being organized,
staying on task, controlling her impulses, making decision, and meeting deadlines,” she struggled
with supervisors, and she “is very sensitive to any negative feedback.” Id. Dr. Asar accordingly
opined, “Due to these symptoms, the patient is unable to work.” Id.
Medical records from Drs. Asar and Greene indicate that Plaintiff frequently complained
about problems at work, including her inability to complete the work she was assigned, her
inability to get to work on time, her difficulty dealing with feedback from her supervisors, and
her difficulties interacting with co-workers. Id. at 422, 424, 427, 435, 438, 440, 442-43, 454-56.
Drs. Asar and Green treated Plaintiff for stress related to these work problems. Id. at 302, 305,
375. Drs. Asar and Green recommended that Plaintiff take time off work to deal with her acute
mental health crises. Id. at 302, 305-306, 442, 459, 463-68. In addition to arriving late to every

8

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appointment she had with Dr. Jeffrey Aronowitz in 2014, Plaintiff did not show for seven
appointments with Dr. Greene, she frequently rescheduled, and she was often late. Id. at 291,
399-401, 403-406, 409-11, 417, 419-23, 429, 432, 435, 437, 439, 460-61.
On November 16, 2017, Dr. Greene “encouraged” Plaintiff to explore applying for social
security benefits. Id. at 444. Plaintiff agreed and discussed her application with Dr. Asar on
December 6, 2017. Id. at 389. Dr. Asar explained to Plaintiff that she “will not be happy if she
is not working,” encouraged her to consider part-time work, and “educated her on the Social
Security Disability application on the computer and showed her how to access it.” Id. Plaintiff
“struggled to work on the paperwork for her SSD claim,” completing the application “at the last
possible minute.” Id. at 459. After her boyfriend left her, Plaintiff cancelled her first social
security appointments “because she was too distraught to drive the 2 hours and sit through two
interviews.” Id.
3.

The ALJ’s Decision

After summarizing the findings from Dr. Greene’s December 13, 2018, assessment, the
ALJ concluded it was “more persuaded by Dr. Alpert’s assessment” concerning Plaintiff’s
mental health limitations. Id. at 19. According to the ALJ, Dr. Alpert’s opinion “appears to be
better supported and more consistent with the record as a whole” and “he supports his opinions
with a very thorough and detailed analysis of the evidence.” Id. at 19. The ALJ concluded Dr.
Alpert’s medical opinion was more persuasive because, according to Dr. Alpert: (1) “the
claimant has not had ‘any serious decompensations or psychiatric hospitalizations recently’ . . .
as one might expect with limitations as those reported by Dr. Greene;” (2) “the claimant’s
difficulties seem to originate more from her romantic relationships than any underlying mental
disorder;” (3) “the claimant’s psychiatrist has encouraged her to work, but [she] has been

9

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‘adamant about wanting to apply for disability;’” and (4) Plaintiff researched how to apply for
disability and asked her psychiatrist for help. Id. at 19. The ALJ did not assess the persuasive
value of Dr. Asar’s October 1, 2019, letter. Id.
4.

Legal Standard

For disability claims filed on or after March 27, 2017, an ALJ’s review of medical
opinion evidence and prior administrative medical findings is governed by 20 C.F.R. §
404.1520c. Under this regulation, applicable here,15 the Commissioner “will not defer or give
any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from [the claimant’s] medical sources.” 20
C.F.R. § 404.1520c(a); see also Howard D. v. Saul, No. 5:19-CV-01615 (BKS), 2021 WL
1152834, at *11 (N.D.N.Y. Mar. 26, 2021). Rather, the ALJ must use five factors to determine
the persuasiveness of the medical opinion evidence and prior administrative medical findings:
supportability; consistency; relationship with the claimant; specialization; and other factors, such
as “a medical source’s familiarity with the other evidence in a claim.” 20 C.F.R. §§
404.1520c(a)-(c); see also Howard, 2021 WL 1152834, at *11.
The two most important factors in this analysis are supportability and consistency. 20
C.F.R. § 404.1520c(b)(2); see also Howard, 2021 WL 1152834, at *11. The ALJ is specifically
required to “explain how she considered the supportability and consistency factors” when
determining the persuasiveness of “a medical source’s medical opinions or prior administrative
medical findings.” 20 C.F.R. § 404.1520c(b)(2); see also Howard, 2021 WL 1152834, at *11.
“If the ALJ fails adequately to explain the supportability or consistency factors, or bases her
explanation upon a misreading of the record, remand is required.” Rivera v. Comm’r of the Soc.

15

Plaintiff filed her claim on December 27, 2017. (T. at 161.)
10

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Sec. Admin., No. 19-CV-4630 (LJL) (BCM), 2020 WL 8167136, at *14 (S.D.N.Y. Dec. 30,
2020), report and recommendation adopted, No. 19-CV-4630 (LJL), 2021 WL 134945
(S.D.N.Y. Jan. 14, 2021); see also Howard, 2021 WL 1152834, at *12 (observing “courts have
remanded where an ALJ did not adhere to the regulations”) (collecting cases).
Under the supportability factor, the more a medical opinion or prior administrative
medical finding is reinforced by “relevant . . . objective medical evidence and supporting
explanations,” the “more persuasive” it will be. 20 C.F.R. § 404.1520c(c)(1); Carmen M. v.
Comm’r of the Soc. Sec. Admin, No. 20-CV-06532-MJR, 2021 WL 5410550, at *4 (W.D.N.Y.
Nov. 19, 2021) (“The supportability factor asks how well a medical source supported their
opinion(s) with objective medical evidence and supporting explanations.”). Under the
consistency factor, a medical opinion or prior administrative medical finding is “more
persuasive” if it is consistent “with the evidence from other medical sources and nonmedical
sources in the claim.” 20 C.F.R. § 404.1520c(c)(2); Galo G. v Comm’r of the Soc. Sec. Admin,
No. 3:20-CV-1011 (FJS), 2021 WL 5232722, at *4 (N.D.N.Y. Nov. 9, 2021) (“The regulations
provide that with respect to consistency, the more consistent a medical opinion is with the
evidence from other medical sources and nonmedical sources in the claim, the more persuasive
the medical opinion will be.”).
“An ALJ must consider, but is not required to discuss, the three remaining factors when
determining the persuasiveness of a medical source’s opinion.” Howard D., No. 2021 WL
1152834, at *11; see also 20 C.F.R. §§ 1520c(a), (b)(2). However, where the ALJ has found two
or more divergent medical opinions to be equally well supported and consistent with the record,
the ALJ must articulate how he or she evaluated the three remaining factors. 20 C.F.R.
§ 404.1520c(b)(3).

11

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5.

The ALJ Erred

The ALJ did not err in failing evaluate the persuasive value of Dr. Asar’s October 1,
2019, letter. (T. at 17-19, 29.) However, the ALJ failed to explain the persuasive value she
assigned to Dr. Greene’s medical opinion. See 20 C.F.R. § 404.1520c(b)(2); see also Howard,
2021 WL 1152834, at *11. The ALJ’s evaluation of Dr. Alpert’s medical opinion is also flawed
because it is not supported by substantial evidence. See 20 C.F.R. § 404.1520c. These errors
warrant remand. Rivera, 2020 WL 8167136, at *14; see also Christopher B. v. Saul, No. 8:19CV-00905 (BKS), 2020 WL 5587266, at *19 (N.D.N.Y. Sept. 18, 2020).
a.

Dr. Asar Did Not Issue a Medical Opinion

Dr. Asar is a medical source because she is a licensed physician who practices in New
York, but she did not issue a medical opinion. 20 C.F.R. §§ 404.1502(a)(1), (d); see also T. at
29, 294-315, 359-92. “A medical opinion is a statement from a medical source about what you
can still do despite your impairments and whether you have one or more impairment-related
limitations or restrictions.” 20 C.F.R. § 404.1513(a)(2) (emphasis added); see also Michael H. v.
Saul, No. 5:20-CV-417 (MAD), 2021 WL 2358257, at *5-6 (N.D.N.Y. June 9, 2021) (discussing
the new definition of “medical opinion”). Dr. Asar’s October 1, 2019, letter addressed Plaintiff’s
impairment-related limitations, but it did not discuss what Plaintiff could still do despite her
impairments. (See T. at 29.)
Although Dr. Asar’s October 1, 2019, letter presents a close call, it is not a “medical
opinion” under 20 C.F.R. § 404.1513(a)(2) because it does not address what Plaintiff could still
do despite her impairments. See Michael H., 2021 WL 2358257, at *6 (concluding a doctor’s
statement was not a medical opinion because “it does not address what Plaintiff is capable of
doing in spite of his limitations, nor does it discuss Plaintiff’s limitations with any specificity.”);

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see also Ramirez v. Saul, No. 20-CIV-2922 (NSR) (JCM), 2021 WL 4943551, at *11 (S.D.N.Y.
July 2, 2021), report and recommendation adopted, No. 20-CV-2922 (NSR), 2021 WL 4264253
(S.D.N.Y. Sept. 20, 2021) (“Dr. Schwartz’s statement is not a medical opinion, as it neither
discusses what Plaintiff can still do despite his impairments, nor whether Plaintiff has
impairment-related limitations or restrictions on his ability to perform work-related tasks.”);
Shawna Ann J. v. Comm’r of Soc. Sec., No. 1:19-CV-1098 (WBC), 2021 WL 733804, at *4-5
(W.D.N.Y. Feb. 25, 2021) (concluding a medical source’s “list of symptoms” was not a medical
opinion). Absent a discussion of what Plaintiff could still do despite her impairments, this letter
is more properly considered “Other medical evidence” under 20 C.F.R. § 404.1513(a)(3). See,
e.g., Michael H., 2021 WL 2358257, at *5 (“However, for claims filed after March 27, 2017,
Congress removed the much more general language defining a medical source statement and
added it to the definition of ‘other medical evidence.’”); Shawna Ann J., 2021 WL 733804, at *4
(concluding a list of symptoms was “not a medical opinion, but rather other medical evidence”).
The ALJ accordingly did not err in failing to address the persuasive value of Dr. Asar’s October
1, 2019, letter.
b.

The ALJ Failed to Evaluate Dr. Greene’s Medical Opinion with
the Supportability and Consistency Factors

However, the ALJ did err in failing to explain how she considered the supportability and
consistency factors when evaluating Dr. Greene’s medical opinion. See 20. C.F.R. §
404.1520c(b)(2). The ALJ was specifically required to explain how she considered these factors
when determining the persuasiveness of Dr. Greene’s medical opinion. 20 C.F.R. §
404.1520c(b)(2); see also Howard, 2021 WL 1152834, at *11-12. Rather than doing so, the ALJ
explained she was “more persuaded by Dr. Alpert’s assessment, as it appears to be better
supported and more consistent with the record as a whole.” (T. at 18-19.) This comparative
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conclusion offers no insight into how the ALJ evaluated Dr. Greene’s medical opinion under the
supportability and consistency factors. See 20 C.F.R. § 404.1520c(b)(2); Howard, 2021 WL
1152834, at *12. Remand is required because the ALJ failed to set forth these crucial factors
with sufficient specificity to enable this Court to decide whether the persuasive value assigned to
Dr. Greene’s medical opinion is supported by substantial evidence. Ferraris v. Heckler, 728
F.2d 582, 587 (2d Cir. 1984); see also Rivera, 2020 WL 8167136, at *14.
c.

Substantial Evidence does not Support the ALJ’s Evaluation of Dr.
Alpert’s Medical Opinion

The ALJ also erred in evaluating the medical opinion of Dr. Alpert. (See T. at 19.)
Substantial evidence does not support the ALJ’s unexplained conclusion that Dr. Alpert’s
opinion was “more consistent with the record as a whole.” See id.; see also Galo G., 2021 WL
5232722, at *4 (“The regulations provide that with respect to consistency, the more consistent a
medical opinion is with the evidence from other medical sources and nonmedical sources in the
claim, the more persuasive the medical opinion will be.”). For example, Dr. Alpert concluded
Plaintiff was only “Moderately limited” in her ability to “complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace.” (T. at 73.) However, this conclusion is inconsistent with the evidence that: (i)
Plaintiff was fired from her job as a teacher, id. at 45-46, 42; (ii) Plaintiff struggled to perform
her responsibilities as an administrative assistant, id. at 42-43, 49-50, 302, 305, 355, 435, 443,
438, 440, 454; (iii) Plaintiff frequently arrived late to work and medical appointments, id. at 291,
399-401, 403-406, 409-11, 417, 419-23, 429, 432, 435-40, 442-43, 454-55, 460-61; (iv) Plaintiff
“missed 33 days of work in 2016, and missed 61 days of work in 2017 due to anxiety and panic
attacks,” id. at 29; (v) both Dr. Asar and Dr. Greene gave Plaintiff several medical leaves of
absence from work for acute mental health episodes, id. at 29, 50, 302, 305-306, 443-45, 458,
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463-68; and (vi) Dr. Greene opined that Plaintiff’s mental residual functional capacity was
significantly limited, id. at 393-95, 452-53.
The ALJ also concluded Dr. Alpert’s opinion “appears to be better supported.” (T. at 19;
see also Carmen M., 2021 WL 5410550, at *4 (“The supportability factor asks how well a
medical source supported their opinion(s) with objective medical evidence and supporting
explanations.”).) The ALJ failed to explain why, based upon objective medical evidence, Dr.
Alpert’s opinion appeared to be better supported. (T. at 19.) The ALJ did not identify any
objective medical evidence that supported Dr. Alpert’s opinion, and this Court is unaware of any
that does. See 20 C.F.R. § 404.1502(f) (defining “Objective medical evidence.”).
The ALJ further concluded that Dr. Alpert’s opinion was supported by “a very thorough
and detailed analysis of the evidence.” (T. at 19.) In support of this conclusion, the ALJ points
to several observations Dr. Alpert made in his medical opinion. Id. But the observations
highlighted by the ALJ are just that—observations. See id. They are not examples of “objective
medical evidence,” and they are not “supporting explanations.” See 20 C.F.R. §
404.1520c(c)(1). The supportability factor focuses on whether a medical opinion is reinforced
by “relevant . . . objective medical evidence and supporting explanations.” Id. It does not focus
on whether a medical opinion is reinforced by observations untethered from objective medical
evidence and supporting explanations. See id. The Court nonetheless addresses each
observation, in turn.
The ALJ found persuasive Dr. Alpert’s observation “that the claimant has not had ‘any
serious decompensations or psychiatric hospitalizations recently’ . . . as one might expect with
limitations as extreme as those reported by Dr. Greene.” (T. at 19.) Dr. Alpert offered no
opinion on whether “one might expect” Plaintiff to experience a recent or ongoing

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“decompensations or psychiatric hospitalizations.” See id. at 74-75. The ALJ is the source of
that expectation, not Dr. Alpert. Compare id. at 19, with id. at 74-75. Even if Dr. Alpert had
opined that such an expectation was reasonable, given the limitations reported by Dr. Greene, the
absence of a recent psychiatric hospitalization does not support an affirmative finding that
Plaintiff was capable of work. See, e.g., Demars v. Comm’r of Soc. Sec., 841 F. App’x 258, 262
(2d Cir. 2021).16 Moreover, these absences do not outweigh the extensive evidence indicating
that Plaintiff’s mental health issues have impacted her ability to work. Id.; see also T. at 29, 46368.
The ALJ also found persuasive Dr. Alpert’s observation that Plaintiff’s “difficulties seem
to originate more from her romantic relationships than any underlying mental disorder.” (T. at
19.) Dr. Alpert’s medical opinion includes no such finding or observation. Id. at 73-74. In
concluding otherwise, the ALJ misread the record. See generally Selian v. Astrue, 708 F.3d 409,
418-19 (2d Cir. 2013) (remanding where the ALJ misconstrued the record and her decision was
not supported by substantial evidence). The ALJ’s finding on this point is accordingly
unsupported by substantial evidence. (Compare T. at 19, with id. at 73-74.)
Finally, the ALJ found persuasive Dr. Alpert’s observation that Dr. Asar “encouraged
[Plaintiff] to work,” but she was “adamant about wanting to apply for disability.” (T. at 19.) In
relevant part, Dr. Alpert observed that Dr. Greene first encouraged Plaintiff to apply for

Defendant argues this observation is relevant because “the degree of treatment Plaintiff
received was not consistent with the extreme limitations assessed by Dr. Green[e].” (Dkt. 14 at
22.) The ALJ’s evaluation of Dr. Alpert’s opinion does not discuss or analyze Plaintiff’s
treatment regimen with Dr. Asar or Dr. Greene. (T. at 19.) Defendant’s reliance on the
conservative treatment rule is accordingly misplaced. (See Dkt. 14 at 22, citing Netter v. Astrue
272 F. App’x 54, 56 (2d Cir. 2008).) Moreover, the conservative treatment rule is a product of
the treating physician rule, and it does not appear in 20 C.F.R. § 404.1520c—which governs the
ALJ’s evaluation of medical opinion evidence in this case. Its applicability here is accordingly
suspect.
16

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disability. Id. at 74. Plaintiff, who was “thinking about not working or working part-time when
she gets disability,” then asked Dr. Asar for help. Id. Plaintiff researched “what mental
disorders she should have and brought [Dr. Asar] the papers.” Id. Dr. Asar “encourage[ed] her
to work at least part time” and “educated her on the Social Security application.” Id. at 74.
Aside from listing these facts, Dr. Alpert offers no opinion on why they are relevant or how they
support his medical opinion. See id. In other words, this recitation of facts lacks a “supporting
explanation.” See 20 C.F.R. § 404.1520c(c)(1). Moreover, this Court is unaware of any rule or
precedent that bars a claimant from social security benefits when she follows the advice of her
trusted psychologist to apply for such benefits. Substantial evidence accordingly does not
support the ALJ’s conclusion that Dr. Alpert’s medical opinion was “better supported . . . with a
thorough and detailed analysis of the evidence.” (T. at 19.)
B.

Symptoms and Residual Functional Capacity Determination

The ALJ’s errors in evaluating medical opinions impacted her conclusions about
Plaintiff’s symptoms and Plaintiff’s residual functional capacity. See, e.g., Anne F. v. Saul, No.
8:19-CV-774, 2020 WL 6882777, at *13 (N.D.N.Y. Nov. 24, 2020); Rodriguez v. Colvin, No.
3:14-CV-1552, 2016 WL 1275647, at *7 (N.D.N.Y. Mar. 31, 2016). This Court cannot conduct
a meaningful review of those conclusions because the ALJ’s decision lacks analysis of Plaintiff’s
symptoms in relation to the evidence. See Cichocki v. Astrue, 534 F. App’x 71, 76 (2d Cir.
2013); Pratts, 94 F.3d 34, 39. Moreover, the findings listed at the end of the ALJ’s residual
functional capacity determination are not supported substantial evidence. (See T. at 19.)
1.

Medical Opinion Errors Impacted the ALJ’s Conclusions

To determine a claimant’s residual functional capacity, the ALJ must consider “all of the
relevant medical and other evidence,” “including limitations that result from . . . symptoms.” 20

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C.F.R. §§ 404.1545(a)(3), (d); see also 20 C.F.R. § 404.1529(c); SSR 16-3P, 2017 WL 5180304,
at *12. The ALJ’s evaluation of a claimant’s symptoms in turn requires the ALJ to consider
medical opinion evidence. See 20 C.F.R. §§ 404.1529(c)(3)-(4) (requiring the ALJ to consider
evidence from medical sources when evaluating the intensity, persistence, and limiting effects of
symptoms); SSR 16-3P, 2017 WL 5180304, at *6-7. When the ALJ conducts a flawed
evaluation of medical opinion evidence, it necessarily impacts the ALJ’s evaluation of
symptoms. See 20 C.F.R. §§ 404.1529(c)(3)-(4); see also, e.g., Anne F., 2020 WL 6882777, at
*13; Christopher B. v. Saul, No. 8:19-CV-00905 (BKS), 2020 WL 5587266, at *19 (N.D.N.Y.
Sept. 18, 2020). A flawed evaluation of medical opinion evidence also impacts the ALJ’s
assessment of a claimant’s residual functional capacity. See 20 C.F.R. § 404.1545(a)(3) (“We
will assess your residual functional capacity based on all of the relevant medical and other
evidence”); see also, e.g., Rodriguez, 2016 WL 1275647, at *7; Mortise v. Astrue, 713 F. Supp.
2d 111, 127 (N.D.N.Y. 2010).
Here, the ALJ denied Plaintiff’s claim at step five, concluding she had sufficient residual
functional capacity to perform work in the national economy. (T. at 20-21.) However, the ALJ’s
errors in evaluating the medical opinions of Drs. Greene and Alpert necessarily influenced her
evaluation of Plaintiff’s symptoms. See 20 C.F.R. §§ 404.1529(c)(3)-(4); see also, e.g., Anne F.,
2020 WL 6882777, at *13. Those errors also influenced the ALJ’s evaluation of Plaintiff’s
residual functional capacity. See 20 C.F.R. § 404.1545(a)(3); see also, e.g., Rodriguez, 2016 WL
1275647, at *7. Remand is accordingly warranted. Anne F., 2020 WL 6882777, at *13;
Rodriguez, 2016 WL 1275647, at *7.

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2.

The ALJ’s Decision Frustrates Meaningful Review

The ALJ’s residual functional capacity determination frustrates meaningful review
because it lacks “specific reasons for the weight given to the [Plaintiff’s] symptoms.” SSR 163P, 2017 WL 5180304, at *10; see also Cichocki, 534 F. App’x at 76. “In evaluating an
individual’s symptoms, it is not sufficient for [ALJs] to make a single, conclusory statement that
‘the individual’s statements about his or her symptoms have been considered’ or that ‘the
statements about the individual’s symptoms are (or are not) supported or consistent.’” SSR 163P, 2017 WL 5180304, at *10; see also Natashia R. v. Berryhill, No. 3:17-CV-01266 (TWD),
2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (“conclusory statements regarding
Plaintiff’s capacities are not sufficient”). Instead, the decision “must contain specific reasons for
the weight given to the individual’s symptoms, be consistent with and supported by the evidence,
and be clearly articulated so the individual and any subsequent reviewer can assess how the
adjudicator evaluated the individual’s symptoms.” SSR 16-3P, 2017 WL 5180304, at *10; see
also SSR 96-8P, 1996 WL 374184, at *7 (“The RFC assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific medical facts
(e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).”). The
ALJ’s decision does not satisfy this standard. (T. at 17-19.)
The ALJ began her residual functional capacity analysis by listing Plaintiff’s symptoms.
(T. at 17.) She then concluded that, based upon her consideration of those symptoms, “the
record as a whole does not support limitations beyond those provided for within the above-found
residual functional capacity.” Id. Without explaining how Plaintiff’s symptoms compared to
evidence in the record, the ALJ concluded her residual functional capacity finding was
“consistent with the objective medical and other evidence of record.” Id. This conclusory

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analysis is inadequate. See SSR 16-3P, 2017 WL 5180304, at *10; see also Natashia R., 2019
WL 1260049, at *11. It lacks “specific reasons for the weight given to [Plaintiff’s] symptoms.”
SSR 16-3P, 2017 WL 5180304, at *10; see also SSR 96-8P, 1996 WL 374184, at *7. It does not
explain which symptoms the ALJ found consistent with record evidence, and which symptoms
the ALJ found inconsistent with record evidence. (See T. at 17; see also Natashia R., 2019 WL
1260049, at *11; SSR 16-3P, 2017 WL 5180304, at *10; SSR 96-8P, 1996 WL 374184, at *7.)
And it does not address Plaintiff’s symptoms under the factors set forth in 20 C.F.R. §§
404.1529(c)(3)(i)-(vii). See SSR 16-3P, 2017 WL 5180304, at *4-12 (explaining the factors and
their application). Absent a more specific explanation of the ALJ’s analysis, this Court cannot
meaningfully review whether it is supported by substantial evidence. Pratts, 94 F.3d at 39.
Remand is accordingly warranted. Id.
3.

The ALJ’s Findings are Unsupported by Substantial Evidence

After the ALJ reached her conclusions about Plaintiff’s symptoms and the medical
opinion evidence, she listed several findings. (T. at 19.) Although not explicitly tied to the
ALJ’s evaluation of Plaintiff’s symptoms, these findings may have impacted that evaluation. See
id. Yet, these findings do not appear to be supported by substantial evidence.
For example, the ALJ found that Plaintiff’s “statements to her psychiatrist show she
retains a reasonable ability to concentrate and apply information.” Id. at 19. Plaintiff suffers
from depression, anxiety, attention deficit/hyperactivity disorder, and obsessive-compulsive
disorder. See id. at 68, 292, 362, 393. Her ability to communicate with her therapist of 20 years
and concentrate during therapy sessions does not demonstrate that she “retains a reasonable
ability to concentrate and apply information” in a work setting. See generally 20 C.F.R. § Pt.
404, Subpt. P, App. 1, 12.00C(6)(b) (“Your ability to complete tasks in settings that are highly

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structured, or that are less demanding or more supportive than typical work settings does not
necessarily demonstrate your ability to complete tasks in the context of regular employment
during a normal workday or work week.”); 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00D(3)(a)
(“The fact that you have done, or currently do, some routine activities without help or support
does not necessarily mean that you do not have a mental disorder or that you are not disabled.”).
It means she “retains a reasonable ability to concentrate and apply information” when
communicating with her therapist of 20 years. On the flip side, substantial evidence
demonstrates Plaintiff has struggled to consistently concentrate and apply information in work
settings. (See generally T. at 29, 42-43, 49-50, 302, 305-306, 355, 435, 443-45, 438, 440, 454,
463-68.)
The ALJ also found that Plaintiff’s “ability to socialize and interact with others is
demonstrated by her own admission that she has an ‘active social life,” including “romantic
relationships . . . female friends and a seemingly good relationship with her children.” (T. at 19.)
Here, the ALJ misreads the record again. See generally Selian, 708 F.3d 409, 418-19. Plaintiff
never testified that she had an active social life. See id. at 40; accord Dkt. 14 at 22. Instead,
when the ALJ stated “You seem to have a fairly active social life,” Plaintiff responded, “I do? I
don’t really have much of one now.” (T. at 40; see also id. at 306, 313 (indicating that Plaintiff’s
close friend died of cancer in 2016, and another close friend cut ties with her in 2017).)
Furthermore, Plaintiff’s commitment to romantic and familial relationships has limited bearing
on her mental residual functional capacity. See generally Van Dyne v. Saul, No. 20-CV-260
(MKB), 2021 WL 1210460, at *16 (E.D.N.Y. Mar. 31, 2021) (“Plaintiff’s efforts to pursue the
things that are important to her and to engage in self-care do not establish that she is not
disabled.”) (collecting cases); see also 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00D(3)(b)

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(explaining an individual’s ability to spend time with familiar people “in a simple and steady
routine . . . does not necessarily show how [she] would function in a work setting on a sustained
basis”).
Finally, the ALJ notes that Plaintiff “has a well-documented history of attending her
appointments on time, as scheduled, since her alleged onset date.” (T. at 19.) Plaintiff’s ability
to engage in self-care by attending therapy sessions with Drs. Asar and Greene does not establish
that she is not disabled. Van Dyne, 2021 WL 1210460, at *16; see also 20 C.F.R. § Pt. 404,
Subpt. P, App. 1, 12.00C(6)(b). It establishes that she has recently been on time to therapy
sessions, despite a record of no-shows, cancellations, and tardiness. (See T. at 291, 399-401,
403-406, 409-11, 417, 419-23, 429, 432, 435, 437, 439, 460-61; see also Estrella v. Berryhill,
925 F.3d 90, 97 (2d Cir. 2019) (“Cycles of improvement and debilitating symptoms of mental
illness are a common occurrence, and in such circumstances it is error for an ALJ to pick out a
few isolated instances of improvement over a period of months or years and to treat them as a
basis for concluding a claimant is capable of working.”).) Outside the context of Plaintiff’s
ability to engage in self-care, substantial evidence demonstrates she was frequently late to work,
she “missed 33 days of work in 2016, and missed 61 days of work in 2017 due to anxiety and
panic attacks.” Id. at 29, 422, 440, 442-43, 454-56.
In short, to the extent the ALJ offered these findings in support of her residual functional
capacity and symptom analysis, they are not supported by substantial evidence.
IV.

REMAND
On remand, the ALJ should begin by re-evaluating the persuasive value of the medical

opinions pursuant to 20 C.F.R. § 404.1520c. The ALJ should articulate how persuasive she finds
each medical opinion under the supportability and consistency factors. Id. at § 404.1520c(b)(2).

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If the ALJ finds equally persuasive two or more medical opinions that diverge on a specific
issue, she should articulate how persuasive she found those opinions under the remaining factors.
Id. at § 404.1520c(b)(3). The ALJ should then assess the intensity, persistence, and limiting
effects of Plaintiff’s symptoms, considering “all of the medical and nonmedical evidence,
including the information described in § 404.1529(c).” 20 C.F.R. § 404.1545(e); see also id. §
404.1545(a)(3); see generally SSR 16-3P, 2017 WL 5180304, at *4-10.
V.

CONCLUSION
Considering the foregoing, the Court finds the Commissioner’s decision was not based

upon correct legal standards and substantial evidence does not support the determination that
Plaintiff was not under a disability within the meaning of the Social Security Act.
WHEREFORE, it is hereby
ORDERED that the decision of the Commissioner is REVERSED AND
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings consistent with
this Decision and Order; and it is further
ORDERED that the Clerk provide a copy of this Decision and Order to the parties in
accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.

Dated:

January 10, 2022
Syracuse, New York

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