Edwards v. O'Malley

Filing 16

DECISION AND ORDER granting 14 Motion for Judgment on the Pleadings. For the foregoing reasons, Plaintiff's Motion for Judgment on the Pleadings (Docket No. 14) is GRANTED; the Commissioner's decision is REVERSED; and this case is RE MANDED for further administrative proceedings consistent with this Decision and Order. The Clerk is directed to enter final judgment in favor of Plaintiff and then close the file. (Signed by Magistrate Judge Gary R. Jones on 11/25/2024) (mml) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------LENNETT E.,
Plaintiff,

DECISION AND ORDER
1:24-cv-01831-GRJ

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
----------------------------------------------------GARY R. JONES, United States Magistrate Judge:
In September of 2021, Plaintiff Lennett E. 1 applied for Disability
Insurance Benefits and Supplemental Security Income Benefits under the
Social Security Act. The Commissioner of Social Security denied the
applications. Plaintiff, represented by Legal Services of the Hudson Valley,
Mary Grace Ferone, Esq., of counsel, commenced this action seeking
judicial review of the Commissioner’s denial of benefits under 42 U.S.C. §§
405 (g) and 1383 (c)(3). The parties consented to the jurisdiction of a
United States Magistrate Judge. (Docket No. 10).
This case was referred to the undersigned on October 8, 2024.
Presently pending is Plaintiff’s Motion for Judgment on the Pleadings

Plaintiff’s name has been partially redacted in compliance with Federal Rule of Civil
Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court
Administration and Case Management of the Judicial Conference of the United States.
1

1

pursuant to Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket
No. 14). For the following reasons, Plaintiff’s motion is due to be granted
and this case is remanded for further administrative proceedings.
I. BACKGROUND
A.

Administrative Proceedings

Plaintiff applied for benefits on September 17, 2021, alleging disability
beginning April 1, 2018. (T at 302-20). 2 Plaintiff’s applications were denied
initially and on reconsideration. She requested a hearing before an
Administrative Law Judge (“ALJ”). A hearing was held on March 23, 2023,
before ALJ Vincent Cascio. (T at 43-67). Plaintiff appeared with an attorney
and testified. (T at 49-59). The ALJ also received testimony from Kim
Williford, a vocational expert. (T at 61-66).
B.

ALJ’s Decision

On April 18, 2023, the ALJ issued a decision denying the applications
for benefits. (T at 7-30). The ALJ found that Plaintiff had not engaged in
substantial gainful activity since April 1, 2018 (the alleged onset date) and
met the insured status requirements of the Social Security Act through
December 31, 2019 (the date last insured). (T at 12).

2

Citations to “T” refer to the administrative record transcript at Docket No. 11.
2

The ALJ concluded that Plaintiff’s degenerative disc disease of the
cervical spine; degenerative disc disease of the thoracic spine;
degenerative disc disease of the lumbar spine; degenerative joint disease
of the right shoulder; carpal tunnel syndrome; asthma; obesity; bi-polar
disorder; depression; post-traumatic stress disorder; and generalized
anxiety disorder were severe impairments as defined under the Act. (T at
13).
However, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 14).
At step four of the sequential analysis the ALJ determined that
Plaintiff retained the residual functional capacity (“RFC”) to perform light
work, as defined in 20 CFR 404.1567 (b), with the following limitations: she
can occasionally climb ramps and stairs; but never climb ladders, ropes, or
scaffolds; occasionally stoop, crouch, and kneel; but never crawl; she can
tolerate no exposure to extreme heat and humidity, unprotected heights, or
hazardous machinery; she can frequently reach, including overhead, with
her right upper extremity; frequently handle and finger with her upper
extremities, bilaterally; and must avoid exposure to respiratory irritants such
as fumes, odors, dusts, gases, and poorly ventilated areas. (T at 15-16).
3

The ALJ further found that Plaintiff can understand, remember, and
carry out simple, routine, repetitive work-related tasks, with only occasional
contact with the public, co-workers, and supervisors, and concluded that
she could work in a low-stress job, defined as requiring only occasional
decision making and no more than occasional changes in the workplace. (T
at 16).
The ALJ concluded that Plaintiff could not perform her past relevant
work as a babysitter. (T at 22). However, considering Plaintiff’s age (41 on
the alleged onset date), education (limited), work experience, and RFC, the
ALJ determined that there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform. (T at 23).
As such, the ALJ found that Plaintiff had not been under a disability,
as defined under the Social Security Act, and was not entitled to benefits
for the period between April 1, 2018 (the alleged onset date) and April 18,
2023 (the date of the ALJ’s decision). (T at 24).
On January 31, 2024, the Appeals Council denied Plaintiff’s request
for review, making the ALJ’s decision the Commissioner’s final decision. (T
at 1-6).

4

C.

Procedural History

Plaintiff commenced this action, by and through her counsel, by filing
a Complaint on March 11, 2024. (Docket No. 1). On July 19, 2024, Plaintiff
filed a motion for judgment on the pleadings, supported by a memorandum
of law. (Docket No. 14). The Commissioner interposed a brief in opposition
to the motion and in support of a request for judgment on the pleadings on
September 18, 2024. (Docket No. 15).
II. APPLICABLE LAW
A.

Standard of Review

“It is not the function of a reviewing court to decide de novo whether a
claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999).
The court’s review is limited to “determin[ing] whether there is substantial
evidence supporting the Commissioner's decision and whether the
Commissioner applied the correct legal standard.” Poupore v. Astrue, 566
F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings,
which are considered conclusive if supported by substantial evidence. See
42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla”
and “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec.,
5

562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by
substantial evidence, the reviewing court is required to examine the entire
record, including contradictory evidence and evidence from which
conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145,
151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has
applied an improper legal standard,” or when the ALJ’s rationale is unclear,
remand “for further development of the evidence” or for an explanation of
the ALJ’s reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.
1996).
B.

Five-Step Sequential Evaluation Process

Under the Social Security Act, a claimant is disabled if he or she
lacks the ability “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months ....” 42 U.S.C. §
423(d)(1)(A).

6

A claimant’s eligibility for disability benefits is evaluated pursuant to a
five-step sequential analysis:
1. The Commissioner considers whether the claimant is
currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has
a “severe impairment” which limits his or her mental or physical
ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner
must ask whether, based solely on medical evidence, claimant
has an impairment listed in Appendix 1 of the regulations. If the
claimant has one of these enumerated impairments, the
Commissioner will automatically consider him disabled, without
considering vocational factors such as age, education, and
work experience.
4. If the impairment is not “listed” in the regulations, the
Commissioner then asks whether, despite the claimant's severe
impairment, he or she has residual functional capacity to
perform his or her past work.
5. 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.
See Rolon v. Commissioner of Soc. Sec., 994 F. Supp. 2d 496, 503
(S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)–(v),
416.920(a)(4)(i)–(v).
The claimant bears the burden of proof as to the first four steps; the
burden shifts to the Commissioner at step five. See Green-Younger v.
Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner
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determines whether the claimant can perform work that exists in significant
numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101,
103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
III. DISCUSSION
Plaintiff raises one primary argument in support of her request for
reversal of the ALJ’s denial of benefits. Plaintiff contends that the ALJ’s
assessment of the medical opinion evidence is not consistent with
applicable law or supported by substantial evidence.
A. Medical Opinion Evidence
“Regardless of its source, the ALJ must evaluate every medical
opinion in determining whether a claimant is disabled under the [Social
Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013
WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§
404.1527(c), 416.927(d) (2020)) (internal quotation marks omitted).
In January of 2017, the Social Security Administration promulgated
new regulations regarding the consideration of medical opinion evidence.
The revised regulations apply to claims filed on or after March 27, 2017.
See 20 C.F.R. § 404.1520c. Because Plaintiff applied for benefits after that
date, the new regulations apply here.

8

The ALJ no longer gives “specific evidentiary weight to medical
opinions,” but rather considers all medical opinions and “evaluate[s] their
persuasiveness” based on supportability, consistency, relationship with the
claimant, specialization, and other factors. See 20 C.F.R. § 404.1520c (a),
(b)(2). The ALJ is required to “articulate how [he or she] considered the
medical opinions” and state “how persuasive” he or she finds each opinion,
with a specific explanation provided as to the consistency and
supportability factors. See 20 C.F.R. § 404.1520c (b)(2).
Consistency is “the extent to which an opinion or finding is consistent
with evidence from other medical sources and non-medical sources.” Dany
Z. v. Saul, 531 F. Supp. 3d 871, 882 (D. Vt. 2021)(citing 20 C.F.R. §
416.920c(c)(2)). The “more consistent a medical opinion” is with “evidence
from other medical sources and nonmedical sources,” the “more
persuasive the medical opinion” will be. See 20 C.F.R. § 404.1520c(c)(2).
Supportability is “the extent to which an opinion or finding is
supported by relevant objective medical evidence and the medical source’s
supporting explanations.” Dany Z, 531 F. Supp. 3d at 881. “The more
relevant the objective medical evidence and supporting explanations
presented by a medical source are to support his or her medical opinion(s)
or prior administrative medical finding(s), the more persuasive the medical
9

opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §
404.1520 (c)(1), 416.920c(c)(1).
In the present case, the record contains multiple medical opinions
regarding Plaintiff’s physical and mental limitations. The Court will address
these opinions, and the ALJ’s consideration of them, in turn.
1. Physical Limitations
In April of 2019, Andres Jimenez, a nurse practitioner, wrote a letter
advising that Plaintiff was being treated for cervical spine pain, lumbar and
sacral pain, neuropathy, and carpal tunnel syndrome and opining that
Plaintiff should avoid bending; prolonged standing, sitting, or walking; and
repetitive movements of her hands, arms, and neck. (T at 539).
In June of 2019, Dr. Khaled Ahmed, a treating physician, wrote a
letter advising Plaintiff to limit bending and gross movement of her back
and hands bilaterally. (T at 586).
In July and September of 2019, Octavian Mihai, a treating physician’s
assistant, reported a diagnosis of radiculopathy of the lumbar region and
opined that Plaintiff could not lift, push, or pull more than 5 pounds; could
not sit or stand for more than 20 minutes, and could not perform repetitive
hand movements. (T at 594-95).

10

Dr. Michael Healy performed a consultative examination in February
of 2022. He diagnosed lower back pain (probable lumbar spinal
intervertebral disc disruption), mild neck pain (probable cervical spinal
intervertebral disc disruption or other degenerative condition), previous
carpal tunnel release of the left wrist, and chronic nystagmus. (T at 782).
Dr. Healy opined that Plaintiff should “probably avoid activities requiring
functional vision” and would have moderate to marked limitation with
respect to standing, walking, bending, lifting, and climbing stairs. (T at 782).
In March of 2022, Dr. A. Saeed, a non-examining State Agency
review consultant, opined that Plaintiff could occasionally lift and/or carry
20 pounds; frequently lift and/or carry ten pounds; stand and/or walk about
6 hours in an 8-hour workday; and sit about 6 hours in an 8-hour workday.
(T at 90-91). Dr. Saeed assessed no postural and manipulative limitations
but found that Plaintiff should avoid concentrated exposure to extreme
heat, humidity, fumes, odors, dusts, gases, and poor ventilation. (T at 9192). Dr. C. Li, another State Agency consultant, assessed the same
limitations in May of 2022. (T at 117-19).
As noted above, the ALJ concluded that Plaintiff retained the RFC to
perform a reduced range of light work. (T at 15-16). In reaching this
conclusion, the ALJ found the opinions of Ms. Jimenez, Dr. Ahmed, and Dr.
11

Healy “somewhat” persuasive. (T at 19-20). The ALJ considered the
opinions provided by Ms. Mihai to be unpersuasive. (T at 20). The ALJ
found the opinions of Dr. Saeed and Dr. Li persuasive but concluded that
Plaintiff had additional postural and manipulative limitations. (T at 19).
The Court finds that the ALJ’s assessment of the medical opinion
evidence regarding Plaintiff’s physical limitations must be revisited on
remand.
“The full range of light work requires intermittently standing or walking
for a total of approximately 6 hours of an 8–hour workday, with sitting
occurring intermittently during the remaining time.” Poupore v. Astrue, 566
F.3d 303, 305 (2d Cir.2009).
Here, the ALJ concluded that Plaintiff could meet the demands of a
reduced range of light work, but did not perform an assessment of her
work-related abilities on a function-by-function basis.
Before determining a claimant’s RFC based on exertional levels
(sedentary, light, medium, heavy, or very heavy), the ALJ “must first identify
the individual’s functional limitations or restrictions and assess his or her
work-related abilities on a function-by-function basis.” Cichocki v. Astrue,
729 F.3d 172, 176 (2d Cir. 2013) (emphasis added) (internal quotation
marks omitted); see also 20 C.F.R. §§ 404.1545, 416.945.
12

The work-related functions include physical abilities (standing, sitting,
walking, lifting, carrying, pushing, pulling), mental abilities (understanding,
remembering, carrying out instructions, and responding to supervision),
and other abilities that may be impacted by impairments (seeing, hearing,
ability to tolerate environmental factors). See SSR 96-8P; see also 20
C.F.R. § 404.1545(b)-(d); id. § 416.945; Cichocki, 729 F.3d at 176.
Although the Second Circuit has not applied a per se rule requiring
remand in cases where ALJ did not provide an explicit function-by-function
analysis—see Cichocki, 729 F.3d at 176; compare Burrows v. Barnhart,
No. 3:03CV342, 2007 WL 708627, at *13 (D. Conn. Feb. 20,
2007)(“[a]lthough a function-by-function analysis is desirable, SSR 96-8p
does not require ALJs to produce [ ] a detailed statement in writing”), with
McMullen v. Astrue, No. 5:05-cv-1484, 2008 WL 3884359, at *6 (N.D.N.Y.
Aug. 18, 2008) (remanding because “the ALJ erred in determining that
Plaintiff could do light work before fully assessing his work-related abilities
on a function-by-function basis”)— “remand [however] may be appropriate
... where an ALJ fails to assess a claimant’s capacity to perform relevant
functions, despite contradictory evidence in the record, or where other
inadequacies in the ALJ's analysis frustrate meaningful review.” Cichocki,
729 F.3d at 177.
13

In the present case, all the treating and examining providers
assessed significant limitation in Plaintiff’s ability to engage in prolonged
standing and walking, including Dr. Healy (the consultative examiner), who
assessed moderate to marked limitation as to these functions. (T at 539,
595, 782). The ALJ did not make an explicit finding regarding Plaintiff’s
ability to stand or walk, but generally discounted the treating and examining
assessments as inadequately supported and inconsistent with his reading
of the record and characterization of the treatment. This was error.
The ALJ is a layperson and, therefore, should not assume “the
mantle of a medical expert.” Balotti v. Comm'r of Soc. Sec., No. 20-CV8944 (RWL), 2022 WL 1963657, at *6 (S.D.N.Y. June 6, 2022)(quoting
Amarante v. Comm’r of Soc. Sec., No. 16-CV-0717, 2017 WL 4326014 at
*10 (S.D.N.Y. Sept. 8, 2017); see also Riccobono v. Saul, 796 F. App'x 49,
50 (2d Cir. 2020).
It is “well-settled that ‘the ALJ cannot arbitrarily substitute his own
judgment for competent medical opinion . . .. While an [ALJ] is free to …
choose between properly submitted medical opinions, he is not free to set
his own expertise against that of a physician who [submitted an opinion to
or] testified before him.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.

14

1998)(quoting McBrayer v. Secretary of Health and Human Servs., 712
F.2d 795, 799 (2d Cir. 1983) (alterations in original).
Here, the ALJ found the treating and examining opinions inconsistent
with the “conservative” course of treatment. (T at 20). In so doing, the ALJ
placed undue emphasis on the fact that surgery was not recommended in
characterizing Plaintiff’s treatment as “conservative,” particularly since she
received epidural injections, pain medication, and physical therapy. See
Diaz v. Astrue, No. 08cv5006 (JG), 2009 WL 2601316, at *5 (E.D.N.Y. Aug.
24, 2009)(finding characterization of treatment as “conservative” to be
“problematic,” because there was “no indication that some more intensive
course of treatment should have been pursued if [claimant’s] ailments were
as severe as he alleged”); see also Burgess v. Astrue, 537 F.3d 117, 129
(2d Cir. 2008) (ALJ may not impose his own “‘notion[ ] that the severity of a
physical impairment directly correlates with the intrusiveness of the medical
treatment ordered’”)(quoting Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.
2000)).
In addition, the ALJ erred by considering the treating and examining
opinions in isolation, finding each inconsistent with his reading of the record
without accounting for the significance of their consistency with each other.
See Shawn H. v. Comm'r of Soc. Sec., No. 2:19-CV-113, 2020 WL
15

3969879, at *7 (D. Vt. July 14, 2020)(“Moreover, the ALJ should have
considered that the opinions of Stephens and Dr. Lussier are consistent
with each other.”); Malia Ann B. v. Comm'r of Soc. Sec., No. 5:21-CV-1362AMN-CFH, 2023 WL 2838054, at *7 (N.D.N.Y. Feb. 23, 2023), report and
recommendation adopted, No. 5:21-CV-1362-AMN-CFH, 2023 WL
2623865 (N.D.N.Y. Mar. 24, 2023)(collecting cases holding that “the ALJ is
obligated to discuss the consistency of a medical opinion with the other
evidence in the record, which necessarily includes other medical opinions”).
Lastly, the ALJ erred by discounting the treating and examining
providers’ opinions as vague and/or otherwise insufficiently detailed without
further development of the record. (T at 19-20).
Given the consistent conclusion of the treating and examining
providers regarding restriction in Plaintiff’s ability to perform key functions
of light work (including, in particular, with respect to prolonged standing and
walking), it was error for the ALJ to discount the medical opinions without
first attempting to recontact the providers to obtain that information. See
Piscope v. Colvin, 201 F. Supp. 3d 456, 464 (S.D.N.Y. 2016)(“Given the
conflicts in the medical evidence, and in light of the ALJ’s decision to grant
none of the medical opinions full weight, the record calls for enhancement
through inquiries to the treating physicians or consultants that might shed
16

light on the import of their opinions and the conflicts the ALJ identified.”);
see also Plaza v. Comm'r of Soc. Sec., No. 19CV3853 (DF), 2020 WL
6135716, at *23 (S.D.N.Y. Oct. 16, 2020)(finding that ALJ erred when he
“substituted his lay opinion for that of the treating physician without first recontacting the treater for clarification of any perceived inconsistencies
between the doctor’s opinions and the underlying clinical record”).
In sum, the ALJ failed to assess Plaintiff’s capacity to perform
relevant work-related functions, despite contrary evidence in the record
(including the assessments from the treating and examining providers), and
with inadequacies in his analysis, as outlined above, that frustrate
meaningful review. A remand, therefore, is required. See Gomez v. Saul,
No. 1:19-CV-04708 (ALC), 2021 WL 1172674, at *13 (S.D.N.Y. Mar. 29,
2021).
2. Mental Limitations
Dr. Melissa Antiaris performed a consultative psychological
evaluation in February of 2022. She diagnosed bipolar II disorder;
unspecified stressor and trauma-related disorder; and substance abuse
disorder in full remission. (T at 776).
Dr. Antiaris opined that Plaintiff had no limitation in her ability to
understand, remember, or apply simple directions or instructions; moderate
17

impairment as to understanding, remembering, or applying complex
directions or instructions; moderate limitation in her ability to use reason
and judgment to make work-related decisions and interact adequately with
supervisors, co-workers, and the public; moderate impairment with respect
to sustaining an ordinary routine and regular attendance; moderate
limitation as to sustaining concentration and pace; marked impairment as to
regulating emotions, controlling behavior, and maintaining well-being; mild
limitation in maintaining hygiene, and appropriate attire; and mild
impairment being aware of normal hazards and taking appropriate
precautions. (T at 776).
In March of 2022, Dr. M. Juriga, a non-examining State Agency
review consultant, found that there was insufficient evidence to assess the
severity of Plaintiff’s mental impairments before her date last insured. (T at
76). Dr. Juriga opined that since September 17, 2021 (when she applied
for benefits), Plaintiff retained the RFC to meet the basic mental demands
of unskilled work on a regular basis. (T at 97). In May of 2022, Dr. M.
Butler reached essentially the same conclusions, but also limited Plaintiff to
no more than brief and superficial social interaction. (T at 113, 124).
In October of 2022, Mamadou Diallo, a treating social worker,
completed a psychiatric functional assessment, which was co-signed by
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Esther Tarquino, a psychiatric nurse practitioner. They documented
diagnoses of bipolar disorder, current episode, mixed moderate;
generalized anxiety disorder; and post-traumatic stress disorder. (T at 830).
Mr. Diallo and Ms. Tarquino reported numerous limitations in
Plaintiff’s ability to meet the mental demands of basic work activity,
including extreme limitation in her ability to understand and learn terms,
instructions, and procedures; extreme impairment as to understanding and
solving problems, using reason and judgment to make work-related
decisions, sequencing multi-step activities, and remembering locations. (T
at 831-32). They opined that Plaintiff had extreme limitation with respect to
several aspects of social interaction; marked impairment in completing
tasks in a timely manner and sustaining an ordinary routine without special
supervision; extreme limitation with respect to performing at a consistent
pace without interruption from symptoms or an unreasonable number of
breaks; and extreme impairment as to working in coordination with or
proximity to others without being unduly distracted. (T at 832-33).
Mr. Diallo and Ms. Tarquino believed Plaintiff would be absent or late
for work more than 4 days per month because of symptoms or treatment.
(T at 833). They assessed marked or extreme impairment in Plaintiff’s

19

ability to adapt or manage herself. (T at 833). Mr. Diallo and Ms. Tarquino
reported that Plaintiff’s symptoms fluctuate. (T at 835).
Mr. Diallo also provided a letter dated March 16, 2023, in which he
explained that Plaintiff had been treating at the Westchester Center of
Excellence since May of 2019, with Mr. Diallo treating Plaintiff since April of
2022. (T at 828). He noted the following diagnoses: bipolar disorder,
current episode mixed moderate; chronic post-traumatic stress disorder;
generalized anxiety; and major depressive disorder. (T at 828). Mr. Diallo
opined that Plaintiff would not be able to maintain work due to an inability to
manage her stress, be punctual, be organized, and socialize appropriately.
(T at 828-29).
The ALJ found the opinions of Dr. Juriga and Dr. Butler persuasive,
although, unlike the review physicians, the ALJ determined there was
sufficient evidence to support the existence of medically determinable
mental impairments prior to the date last insured. (T at 20-21).
The ALJ considered Dr. Antiaris’s opinion unpersuasive, finding it
inconsistent with the treatment notes (including Dr. Antiaris’s own
examination findings), with Plaintiff’s activities of daily living, and with the
conservative course of treatment. (T at 21). The ALJ found the opinions of
Mr. Diallo and Ms. Tarquino unpersuasive, concluding that they were
20

inconsistent with the treatment notes, activities of daily living, and
conservative course of treatment and unsupported by detailed clinical
findings. (T at 21-22).
The Court concludes that this aspect of the ALJ’s decision also must
be revisited on remand. As with the physical limitations, every medical
provider who examined or treated Plaintiff concluded that she had marked
or extreme limitations. The ALJ considered each opinion in isolation,
without accounting for the significant consistency between the treating and
examining opinions, particularly with respect to Plaintiff’s ability to regulate
her emotions, sustain a schedule, and maintain attendance. This was
error. See Malia Ann B., 2023 WL 2838054, at *7.
Further, the ALJ discounted Mr. Diallo’s assessments because he
“did not have the opportunity view and consider the entire medical record
before forming an opinion,” while finding persuasive the State Agency
review consultants’ opinions even though neither of the consultants had the
opportunity to review the assessments subsequently provided by Mr. Diallo
and Ms. Tarquino. (T at 21).
In addition, the ALJ’s decision to discount the treating and examining
providers’ assessments was not based on a reasonable reading of the
record.
21

Although Plaintiff was generally cooperative and coherent during
clinical visits, she was consistently described as depressed, anxious, and
with impaired memory and concentration. (T at 1159, 1161-62, 1168, 1170,
1175, 1179, 1184, 1187,1194, 1201, 1208). See Stacey v. Comm'r of SSA,
799 F. Appx. 7, 10 (2d Cir. 2020)(cautioning “ALJs against scouring
medical notes to draw their own conclusions based on isolated
descriptions”); Gough v. Saul, 799 F. Appx. 12, 14 (2d Cir. 2020)(“We fear
that the ALJ cherry-picked evidence from the record to support his
conclusion that Gough could work full time even though the record as a
whole suggested greater dysfunction.”).
The ALJ overrated the relevance of Plaintiff’s ability to maintain
appropriate attendance and affect during relatively brief, relatively
infrequent (weekly or monthly) encounters with supportive mental health
professionals.
The Commissioner’s regulations recognize that a claimant’s “ability to
complete tasks in settings that are highly structured, or that are less
demanding or more supportive than typical work settings does not
necessarily demonstrate [her] ability to complete tasks in the context of
regular employment during a normal workday or work week.” 20 C.F.R.
Subpt. P, App. 1 § 12.00 (C) (6) (b); see also Primo v. Berryhill, 17 Civ.
22

6875, 2019 U.S. Dist. LEXIS 27074, at *31 (S.D.N.Y. Feb. 19, 2019)(noting
that ALJs must recognize that “the effects of a mental health issue may be
different in a work setting than in a non-work setting”); Flynn v. Comm’r of
Soc. Sec. Admin., 729 Fed. Appx. 119, 121 (2d Cir. 2018)(decision to
discount opinion based on treatment notes indicating claimant was “wellgroomed and with calm affect” was “an assessment ... beyond the scope of
the ALJ’s authority”).
Lastly, the ALJ overrated the significance of Plaintiff’s ability to
engage in a limited range of activities of daily living, which included
personal care, light household chores, childcare, and some leisure
activities. (T at 775, 780, 925).
A claimant “need not be an invalid to be found disabled” and should
not be punished for exerting the effort to attend to basic necessities of life.
See Balsamo v. Chater, 142 F.3d 75, 81-82 (2d Cir. 1998). In addition, as
discussed above, the treatment record documents significant symptoms
persisting over time. In this context, some waxing and waning of symptoms
is to be expected and Plaintiff’s ability to periodically push beyond her
ordinary limitations does not translate into an ability to perform competitive
work on a consistent basis. See Estrella, 925 F.3d at 97; Samaru v.
Comm'r of Soc. Sec., No. 18-cv-06321(KAM) (LB), 2020 U.S. Dist. LEXIS
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100141, at *30 (E.D.N.Y. June 8, 2020)(“The critical differences between
activities of daily living and activities in a full time job are that a person has
more flexibility in scheduling the former than the latter, can get help from
other persons …, and is not held to a minimum standard of performance,
as she would be by an employer.”)(quoting Bjornson v. Astrue, 671 F.3d
640, 647 (7th Cir. 2012)).
For these reasons the medical opinion evidence regarding Plaintiff’s
mental impairments must be revisited on remand.
B. Remand
“Sentence four of Section 405 (g) provides district courts with the
authority to affirm, reverse, or modify a decision of the Commissioner ‘with
or without remanding the case for a rehearing.’” Butts v. Barnhart, 388 F.3d
377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405 (g)). Remand for further
administrative proceedings is the appropriate remedy “[w]here there are
gaps in the administrative record or the ALJ has applied an improper legal
standard.” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); see also
Rhone v. Colvin, No. 13-CV-5766 (CM)(RLE), 2014 U.S. Dist. LEXIS
180514, at *28 (S.D.N.Y. Nov. 6, 2014).

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For the reasons discussed above, the Court finds a remand
necessary for proper consideration of the medical opinion evidence
regarding Plaintiff’s physical and mental limitations.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Judgment on the
Pleadings (Docket No. 14) is GRANTED; the Commissioner’s decision is
REVERSED; and this case is REMANDED for further administrative
proceedings consistent with this Decision and Order. The Clerk is directed
to enter final judgment in favor of Plaintiff and then close the file.

s/ Gary R. Jones

Dated: November 25, 2024

GARY R. JONES
United States Magistrate Judge

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