Nocera v. Berryhill

Filing 25

OPINION AND ORDER re: 23 MOTION for Judgment as a Matter of Law filed by Nancy Berryhill. For the foregoing reasons, Plaintiff's motion is denied, and the Commissioner's cross-motion is granted. The Clerk is respectfully requested to terminate the pending motions, (Docket Nos. 20-1, 23), and close the case. SO ORDERED. (Signed by Magistrate Judge Judith C. McCarthy on 7/22/2019) (mml) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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VINCENT NOCERA,
Plaintiff,
OPINION AND ORDER
-against18 Civ. 5080 (JCM)
1

ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
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Plaintiff Vincent Nocera (“Plaintiff”) commenced this action pursuant to 42 U.S.C. §
405(g), challenging the decision of the Commissioner of Social Security (the “Commissioner”),
which denied Plaintiff’s application for disability insurance benefits, finding him not disabled
within the meaning of the Social Security Act (the “Act”).2 (Docket No. 1). Currently before this
Court are (1) Plaintiff’s motion for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure, (Docket No. 20-1), and (2) the Commissioner’s cross-motion
for judgment on the pleadings, (Docket No. 23). For the reasons set forth herein, Plaintiff’s
motion is denied, and the Commissioner’s cross-motion is granted.
BACKGROUND
Plaintiff was born on November 17, 1964. (R.3 129). On August 7, 2015, Plaintiff
applied for disability insurance benefits, alleging that he became disabled that month. (R. 16,

1

Andrew M. Saul is now the Commissioner of Social Security and is substituted for former Acting Commissioner
Nancy Berryhill as the Defendant in this action, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

2

This action is before the Court for all purposes on consent of the parties, pursuant to 28 U.S.C. § 636(c). (Docket
No. 14).

3

Refers to the certified administrative record of proceedings relating to Plaintiff’s application for social security
benefits, filed in this action on September 27, 2018. (Docket No. 15). All page number citations to the certified
administrative record refer to the page number assigned by the SSA.

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227). The SSA denied the claim on October 14, 2015, and Plaintiff requested a hearing before
an administrative law judge (“ALJ”). (R. 139, 144). Plaintiff appeared before ALJ Dennis Katz
on June 8, 2017. (R. 97). At the hearing, Plaintiff amended his onset date to November 20, 2016
because he had been engaged in substantial gainful activity prior to that point in time. (R. 16).
On June 14, 2017, the ALJ issued a decision finding that Plaintiff was not disabled and therefore
not entitled to disability insurance benefits. (R. 16-27). The Appeals Council subsequently
denied Plaintiff’s request for review on April 11, 2018, and the decision of the ALJ became the
Commissioner’s final decision. (R. 1).
A. Medical Treatment
On February 26, 2003, Plaintiff had an intake assessment at St. Joseph’s Mental Health
Clinic after being discharged from inpatient treatment on February 13, 2003. (R. 310). Plaintiff’s
friend told him to see a psychiatrist after he reported hearing voices. (R. 310). Prior to attending
inpatient treatment, Plaintiff was “having a mental relapse,” but his current symptoms were
“somewhat stable.” (R. 310).
A letter from Dr. Jelena Veselinovic, dated October 22, 2015, stated that Plaintiff was a
patient at St. Joseph’s Behavioral Health Clinic since 2003 and was under Dr. Veselinovic’s
psychiatric care since August of 2014. (R. 305). Dr. Veselinovic indicated that Plaintiff was
diagnosed with bipolar disorder and had a history of psychiatric hospitalizations, although he had
not been hospitalized within the past four years. (R. 305). She prescribed Plaintiff Lithium,
Haldol, Cogentin and Seroquel for his condition. (R. 305, 311).
On May 20, 2015, Dr. Veselinovic stated that Plaintiff was not at risk of endangering
himself or others and was not at risk for rehospitalization, but he needed ongoing treatment. (R.
313). At a July 30, 2015 appointment, Plaintiff denied changes in his functioning and reported

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adequate sleep, appetite and energy level. (R. 309). Dr. Veselinovic indicated that Plaintiff was
compliant with his medication and he was not suffering from any adverse reactions. (R. 309).
Plaintiff appeared well groomed and maintained good eye contact. (R. 309). He had a full and
stable affect, goal directed thought process, and no auditory or visual hallucinations or delusions.
(R. 309). On August 14, 2015, Dr. Veselinovic reported that Plaintiff was 100% compliant with
his medication and had adequate sleep, appetite and energy level. (R. 314). She recommended
follow-up appointments every two months. (R. 314). At a September 25, 2015 appointment,
Plaintiff’s mental status examination remained unchanged. (R. 308).
Plaintiff began seeing Celina Duran, a social worker, at St. Joseph’s Behavioral Health
Clinic in October of 2015. (R. 306). At his October 9, 2015 appointment, Ms. Duran found that
Plaintiff’s affect and mood were within normal limits, his speech was fair, and he had no suicidal
or homicidal ideation. (R. 307). Ms. Duran provided a letter indicating that Plaintiff saw a
psychiatrist and social worker at the clinic every two months. (R. 306-07).
B. Medical Opinion from Plaintiff’s Treating Psychiatrist
Dr. Veselinovic completed a mental residual functional capacity (“RFC”) assessment on
November 20, 2015. (R. 316). According to Dr. Veselinovic, Plaintiff was markedly limited in
his ability to remember locations and work-like procedures, understand, remember and carry out
detailed instructions, maintain attention and concentration for extended periods, perform
activities within a schedule, sustain an ordinary routine without supervision, respond
appropriately to changes in a work setting, set realistic goals and make plans independently of
others. (R. 316-17). She opined that Plaintiff had moderate limitations in his ability to
understand, remember and carry out short and simple instructions, work in coordination with
others, ask simple questions, accept instructions, maintain socially appropriate behavior, and

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travel to unfamiliar places or use public transportation. (R. 316-17). However, Plaintiff did not
have significant limitations in his ability to interact appropriately with the general public, get
along with coworkers, or be aware of normal hazards. (R. 317).
Dr. Veselinovic explained that Plaintiff carried the diagnosis of bipolar I disorder with his
most recent episode being hypomanic with psychotic features. (R. 319). Plaintiff had at least
five past psychiatric hospitalizations. (R. 319). He was unstable and had racing thoughts,
pressured speech, anxiety, insomnia, paranoid delusional thinking and behavior, and a labile
mood. (R. 319). Plaintiff also had a remote history of substance abuse, although he was sober
and abstinent for the past 15 years. (R. 319). According to Dr. Veselinovic, Plaintiff reported
tiredness, poor concentration, inability to complete tasks and episodes of auditory hallucinations.
(R. 319). Dr. Veselinovic concluded that Plaintiff suffered from a significant decline in
functioning during the last several months and required ongoing support from his family and
friends. (R. 319).
Dr. Veselinovic completed a psychiatric functional assessment on May 11, 2017. (R.
343). She indicated that Plaintiff still suffered from bipolar I disorder and that she treated
Plaintiff 1 to 4 times per month. (R. 343). According to Dr. Veselinovic, Plaintiff’s prognosis
was poor, and he required lifelong treatment for his condition. (R. 343). Dr. Veselinovic opined
that Plaintiff had extreme limitations understanding and learning terms, instructions and
procedures, describing work activities, recognizing mistakes, identifying and solving problems,
using reason and judgment to make work-related decisions, understanding and responding to
social cues, responding appropriately to requests from coworkers or supervisors, cooperating and
handling conflict with others, keeping social interactions free of excessive irritability, sustaining
an ordinary routine without special supervision, and performing at a consistent pace without

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interruption from symptoms. (R. 344-45). Plaintiff had marked limitations asking simple
questions, answering questions, understanding and remembering short and simple instructions,
sequencing multi-step activities, stating his point of view, initiating or sustaining conversation,
getting along with coworkers, completing tasks in a timely manner, maintaining attention for
two-hour segments, ignoring distractions, coordinating with others, and staying on task. (R. 34445). Plaintiff had moderate limitations remembering work-like procedures and carrying out very
short and simple oral instructions. (R. 344). Dr. Veselinovic indicated that Plaintiff would be
absent from work more than 4 days per month and late to work more than 4 days per month. (R.
346). She elaborated that Plaintiff had a “severe, persistent mental illness” with a history of
hospitalizations and that he was easily frustrated even with a part-time job. (R. 346). Dr.
Veselinovic stated that Plaintiff required ongoing support to maintain his activities of daily living
and compliance with his medication because his symptoms were “chronic and persistent.” (R.
347-48).
C. Medical Opinions from Consultative Physicians
1. Dr. Melissa Antiaris, Psy.D.
Dr. Melissa Antiaris, a psychologist, conducted a psychiatric evaluation of Plaintiff on
September 28, 2015. (R. 298). She reported that Plaintiff was a 50-year old male who took the
bus to arrive at his evaluation. (R. 298). Plaintiff lived in a sober house for 15 years and earned
his GED online approximately three years prior. (R. 298). Plaintiff had difficulty with his
classes and he had difficulty understanding the paperwork he had to fill out. (R. 298). Plaintiff
was employed part-time as a porter at ShopRite, where he worked for 10 years. (R. 298).
Plaintiff indicated that he was diagnosed with bipolar disorder 15 years ago. (R. 298). He
was hospitalized in 2012 at St. Joseph’s Hospital and had been in and out of psychiatric wards.
(R. 298). He stated that he saw a psychiatrist on a monthly basis and began seeing a new
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therapist on a weekly basis. (R. 298). Plaintiff reported being able to dress, bathe and groom
himself three to four times a week. (R. 300). He could cook with difficulty, complete light
cleaning and laundry, shop, and manage his funds. (R. 300). Plaintiff did not drive, but he could
take public transportation. (R. 300).
According to Plaintiff, he still occasionally experienced auditory hallucinations and heard
a woman’s voice. (R. 299). Sometimes he heard her say “Leave him alone” while other times he
could not understand what she said. (R. 299). Plaintiff reported that Haldol “slowed down” the
voices. (R. 299). Plaintiff also reported occasional visual hallucinations and stated that he
sometimes saw ghosts. (R. 299). Plaintiff stated that he began using alcohol in 1977 and started
using marijuana, cocaine, heroin and PCP in 1980. (R. 299). He stopped using alcohol and drugs
in 2000 and attended a detox rehabilitation program. (R. 299). Plaintiff took Haldol, Seroquel,
Benztropine and Lithium for his conditions. (R. 298). Plaintiff told Dr. Antiaris that he slept
well as long as he took his medications. (R. 298). He was unsure if he was depressed, but he
sometimes felt sad. (R. 298). Plaintiff denied suicidal or homicidal ideation and panic attacks.
(R. 298-99).
Dr. Antiaris conducted a mental status examination and observed that Plaintiff appeared
his stated age, was dressed appropriately, was well-groomed and maintained appropriate posture
and eye contact. (R. 299). His thought process was coherent and goal-oriented with no evidence
of hallucinations, delusions or paranoia. (R. 300). She found that Plaintiff’s attention,
concentration, and memory skills were mildly impaired due to limited intellectual functioning.
(R. 300). Plaintiff could complete simple calculations but he had difficulty with serial 3s. (R.
300). He recalled 3 out of 3 objects immediately and 2 after a delay. (R. 300). He could recall 5

6

digits forward, but none backward. (R. 300). Dr. Antiaris found Plaintiff’s insight limited and
judgment poor. (R. 300).
Dr. Antiaris diagnosed Plaintiff with schizoaffective disorder, alcohol use disorder in full
sustained remission, cannabis use disorder in full sustained remission, opioid use disorder in full
sustained remission, cocaine use disorder in full sustained remission, and hallucinogenic use
disorder in full sustained remission. (R. 301). She opined that Plaintiff was mildly limited in his
ability to follow and understand simple directions, perform simple tasks independently, maintain
attention and concentration, maintain a regular schedule, and make appropriate decisions and
relate adequately with others. (R. 301). Plaintiff was moderately limited in his ability to learn
new tasks, perform complex tasks independently, and appropriately deal with stress. (R. 301).
She concluded that Plaintiff’s psychiatric issues may significantly interfere with his ability to
function on a daily basis. (R. 301).
Dr. Antiaris performed a second consultative psychiatric evaluation on April 27, 2017.
(R. 321). Plaintiff stated that he worked 12 hours a week as a maintenance worker and that he
continued to see a therapist and psychiatrist once a month. (R. 321). Plaintiff reported difficulty
falling asleep and a “so-so” appetite. (R. 321). He denied any depressive symptoms but
indicated that he was suicidal in the past due to substance use. (R. 321). Plaintiff also reported
that he had a gambling problem and became very anxious because he wanted to gamble, but
knew that he could not do so. (R. 321). Plaintiff also indicated that he sometimes felt hyper and
did not know “what the problem is.” (R. 321). According to Plaintiff, he began experiencing
auditory hallucinations four years ago and that the medications helped. (R. 322). Plaintiff
reported being able to dress, bathe and groom himself. (R. 323). He could manage his funds,

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take the bus, do laundry and shop as needed. (R. 323). Plaintiff worked part-time during the day
and attended Alcoholics Anonymous either daily or every other day. (R. 323).
Dr. Antiaris conducted a mental status examination and found that Plaintiff was well
groomed, appeared his stated age, and maintained normal eye contact. (R. 322). Plaintiff’s
speech was somewhat slurred, but clear. (R. 322). His thought process was coherent and goal
directed with no evidence of hallucinations, delusions, or paranoia. (R. 322). Dr. Antiaris found
that Plaintiff’s attention, concentration and memory skills were mildly impaired due to limited
intellectual functioning. (R. 323). Plaintiff’s insight was fair, his judgment was poor and his
cognitive functioning was borderline. (R. 323).
Dr. Antiaris concluded that Plaintiff did not have any limitations in his ability to
understand, remember and apply simple directions and instructions. (R. 323-24). He was mildly
limited in his ability to use reason and judgment to make work related decisions, interact
adequately with supervisors, coworkers and the public, and maintain personal hygiene and
appropriate attire. (R. 324). Plaintiff had moderate limitations in his ability to understand,
remember and apply complex instructions. (R. 324). He was markedly limited in his ability to
regulate emotions, control behavior, and maintain well-being.(R. 324). Dr. Antiaris opined that
Plaintiff’s difficulties were caused by lack of motivation and could significantly interfere with
his ability to function on a daily basis. (R. 324).
2. Dr. R. Nobel, Ph.D.
On October 13, 2015, Dr. Nobel reviewed the record and opined that Plaintiff had mild
restrictions maintaining social functioning and moderate difficulties maintaining concentration,
persistence, or pace. (R. 132). Plaintiff was also moderately limited in his ability to understand,
remember, and carry out detailed instructions. (R. 134). Dr. Nobel concluded that Plaintiff was
“capable of engaging in simple, unskilled work.” (R. 135).
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D. Plaintiff’s Testimony
Plaintiff testified that he worked part-time at ShopRite for the past fifteen years. (R. 105).
His job duties included recycling, maintenance and cleaning. (R. 105). At the time of the hearing
he worked 20 hours a week for about four days a week. (R. 106). Plaintiff stated that he missed
work “once in a blue moon” due to sickness and was otherwise punctual and reliable. (R. 113).
When asked if he could handle more than 20 hours of work in a week, Plaintiff stated that he did
not know and indicated that 20 hours a week was all his employer would give him. (R. 114-15).
He also earned less than he had in previous years because his employer cut back his hours. (R.
116). Plaintiff further testified that he lived in a sober house for recovering alcoholics with five
other people. (R. 107-08).
With respect to his medical conditions, Plaintiff testified that he saw his therapist and his
doctor once a month. (R. 119). He was prescribed Haldol, Lithium, and Cogentin, which he took
for about 17 years. (R. 119). He did not have any side effects from the medication. (R. 120).
Plaintiff testified that he used to hear voices telling him to kill himself, but his condition
improved with increases in medication. (R. 120).
E. Vocational Expert’s Testimony
Vocational expert Linda Stein testified at the June 8, 2017 hearing. (R. 124). She stated
that Plaintiff’s current job was consistent with the work of a supermarket bagger, also known as
a courtesy clerk or cart attendant. (R. 124). She testified that the role was at a medium exertional
level. (R. 124). The ALJ asked Ms. Stein whether a person who missed two days of work a
month due to medical reasons would still be eligible to perform the work of a bagger or any other
jobs in the national economy at the unskilled level. (R. 126). Ms. Stein testified that unskilled
work typically allows for no more than one absence a month. (R. 126).

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F. ALJ Katz’s Decision
In his decision, dated June 14, 2017, ALJ Katz followed the five-step procedure
established by the Commissioner for evaluating whether an individual is disabled. See 20 C.F.R.
§ 404.1520. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since November 20, 2016, the alleged onset date. (R. 18). At step two, the ALJ found
that Plaintiff had the following severe impairments: bipolar disorder with psychotic features, an
intellectual impairment and alcoholism in sustained remission. (R. 18). At step three, the ALJ
found that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix I.
Before step four, the ALJ made the following assessment of Plaintiff’s RFC:
The claimant has the residual functional capacity to perform a full range of work at
all exertional levels but with the following nonexertional limitations: he can only
perform simple, unskilled work tasks that require him to understand, remember and
carry out short/simple instructions; and is only able to perform simple, routine,
repetitive work tasks.
(R. 23). At step four, the ALJ found that Plaintiff was capable of performing past relevant work
as a supermarket worker. (R. 25). In the alternative, the ALJ considered Plaintiff’s age,
education, work experience, and RFC, and concluded that Plaintiff could perform work that
exists in significant numbers in the national economy. (R. 26). For example, relying upon the
testimony of the vocational expert, the ALJ stated that Plaintiff could perform the requirements
of representative occupations such as general “supermarket-related” work. (R. 27). Accordingly,
the ALJ determined that Plaintiff was not disabled.

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G. Evidence Submitted to the Appeals Council
After the ALJ issued his June 14, 2017 decision, Plaintiff submitted additional medical
records from St. Joseph’s Medical Center for the Appeals Council’s review. (R. 31-94). The
additional records showed that Plaintiff visited the emergency department on July 3, 2014 for a
muscle strain in his back and kidney stones. (R. 45, 49, 55). Plaintiff was discharged the same
day in stable and improved condition with a prescription for Naproxen. (R. 62, 64).
II. DISCUSSION
Plaintiff argues that remand is warranted because (1) the ALJ failed to give controlling
weight to the opinion of Plaintiff’s treating psychiatrist, and (2) the ALJ erred by evaluating
Plaintiff’s impairment under listing 12.05 instead of listing 12.04.
A. Treating Physician Rule
Plaintiff contends that the ALJ committed legal error by not giving any weight to the
opinion of Dr. Veselinovic, Plaintiff’s treating psychiatrist, without discussing the requisite
factors. (Pl. Br. at 12). In response, the Commissioner argues that the ALJ complied with the
treating physician rule because Dr. Veselinovic’s opinion was not supported by substantial
evidence in the record and the ALJ provided “good reasons” for discounting the severe
limitations identified by Dr. Veselinovic. (Def. Br. at 24).
“Social Security Administration regulations, as well as [Second Circuit] precedent,
mandate specific procedures that an ALJ must follow in determining the appropriate weight to
assign a treating physician’s opinion.” Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019).
“First, the ALJ must decide whether the opinion is entitled to controlling weight.” Id. The ALJ
must afford controlling weight to a treating physician’s opinion as to the nature and severity of
the impairment if it “is well-supported by medically acceptable clinical and laboratory diagnostic

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techniques and is not inconsistent with the other substantial evidence in [the] case record.” Id.
(citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)). If there is substantial evidence in
the record that contradicts or questions the credibility of a treating source’s assessment, the ALJ
may give that treating source’s opinion less deference. See Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004) (finding that treating physician’s opinions were not entitled to controlling weight
because they were not supported by substantial evidence in the record).
Second, if the ALJ does not give controlling weight to a treating source’s opinion, the
ALJ must consider various factors and provide “good reasons” for the weight given. 20 C.F.R.
§ 404.1527(c)(2)-(6); see also Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015). These
“nonexclusive ‘Burgess factors’ [include]: ‘(1) the frequen[cy], length, nature, and extent of
treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the
opinion with the remaining medical evidence; and (4) whether the physician is a specialist.’”
Estrella, 925 F.3d at 95-96 (citing Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)). “[T]o
override the opinion of the treating physician . . . the ALJ must explicitly consider” the foregoing
factors. Greek, 802 F.3d at 375 (alteration in original) (quoting Selian, 708 F.3d at 418). “An
ALJ’s failure to ‘explicitly’ apply the Burgess factors when assigning weight at step two is a
procedural error.” Estrella, 925 F.3d at 96. If the ALJ does not “explicitly” consider these
factors, the case must be remanded unless “a searching review of the record” assures the Court
that the ALJ applied “the substance of the treating physician rule.” Id.
In this case, the ALJ noted that Plaintiff had been “under the care of Dr. Veselinavic [sic]
for many years, and that [the] psychiatrist submitted a mental residual functional capacity
assessment.” (R. 24). The ALJ considered both the November 20, 2015 evaluation as well as the
May 11, 2017 evaluation. (R. 24-25). However, the ALJ declined to give significant weight to

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Dr. Veselinovic’s opinions because the marked limitations she identified were not substantiated
by the other evidence in the record, including Dr. Veselinovic’s treatment notes, Dr.
Veselinovic’s narrative report, and Plaintiff’s testimony. (R. 24). The ALJ further explained:
The undersigned cannot give significant evidentiary weight to the evaluations made
by Dr. Veselinovic as they are totally inconsistent with the claimant’s testimony
concerning his ability to perform basic work activities. That Dr. Veselinovic is a
treating physician does not negate the fact that the claimant has been able to work
during the last 15 years for ShopRite Supermarkets, where he has performed
janitorial type of work, bagging, shopping cart retrieval and a recycling machine.
He has been able to consistently and punctually arrive at the jobsite at 9 o’clock in
the morning and has been able to take public transportation to and from his
apartment to get there. He has been able to live independently and perform routine
ADLs such as shopping and meal preparation. He has earned SGA income through
calendar year 2016. Significantly, he acknowledged that his medical condition has
not changed as of the amended alleged onset date, but he has earned less money
since the alleged onset date only due to a cutback in his hours imposed upon him
by his employer.
(R. 25).
The Court finds that the ALJ provided good reasons for disregarding the extreme
findings in Dr. Veselinovic’s “check off” evaluation of Plaintiff’s mental functional
capacity. While the ALJ did not assign a “specific, quantifiable weight” to Dr.
Veselinovic’s evaluations, this failure is not “dispositive” to the question of whether the
ALJ complied with the treating physician rule, especially where, as here, the ALJ’s
reasoning for discrediting Dr. Veselinovic’s opinion is clear from the decision. Rodriguez
v. Colvin, No. 12 Civ. 3931 (RJS)(RLE), 2014 WL 5038410, at *6 (S.D.N.Y. Sept. 29,
2014). ALJ Katz explicitly considered the requisite factors when assessing Dr.
Veselinovic’s opinion. He acknowledged that Dr. Veselinovic treated Plaintiff for “many
years” and specialized in psychiatry. (R. 24). He also addressed the evidence cited by Dr.
Veselinovic in support of her opinion, and the consistency of her opinion with the other
evidence in the record. (R. 24-25). The ALJ noted that according to the medical records,
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Plaintiff was able to control his psychiatric symptoms with consistent medication. (R.
25). See Evans v. Comm’r of Soc. Sec., 110 F. Supp. 3d 518, 536 (S.D.N.Y. 2015)
(treating physician’s opinion was not entitled to controlling weight where her “treatment
records . . . consistently show stable mental examination findings . . . contrary to her
marked and extreme limitations”). The ALJ also thoroughly discussed and credited
Plaintiff’s testimony and self-reported account of his abilities, including Plaintiff’s
testimony that he lived independently in a sober house and could work 20 hours a week
and only worked less because his employer reduced his hours. (R. 25). See Bagley-Reed
v. Colvin, No. 15 Civ. 3851 (JCF), 2016 WL 2605201, at *6 (S.D.N.Y. May 3, 2016)
(treating physician’s opinion was “undermined by the plaintiff’s own reports of activities
of daily living”). After considering the relevant factors, it was within the ALJ’s
discretion to assign limited weight to the extreme non-exertional limitations identified by
Dr. Veselinovic, and it is not the position of the Court to reweigh the evidence. See Krull
v. Colvin, 669 F. App’x 31, 32 (2d Cir. 2016).
Plaintiff maintains that Dr. Veselinovic’s opinion was “supported by the
substantial evidence in the record, and based upon clinical findings.” (Pl. Br. at 14).
However, Plaintiff does not specifically identify which medical evidence corroborates Dr.
Veselinovic’s extreme findings. On the contrary, the objective medical evidence in the
record supports the ALJ’s findings. Treatment notes show that Plaintiff was stable and
compliant with his medications, which effectively managed his condition without side
effects.4 (R. 308-09, 311-12, 314). The results of Plaintiff’s mental status examinations

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There are only a handful of treatment notes from Dr. Veselinovic in the record. An ALJ has “an affirmative
obligation to develop a claimant’s medical history.” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). “However,
the duty to develop the record is ‘not absolute,’ and requires ‘the ALJ only to ensure that the record contains
sufficient evidence to make a determination.’” Johnson v. Comm’r of Soc. Sec., No. 17 Civ. 5598 (BCM), 2018 WL

14

were consistently normal, and Plaintiff reported adequate sleep, appetite, and energy
level. (R. 308-09, 311-12, 314). Plaintiff had not been hospitalized or received in-patient
treatment since 2012, four years prior to his alleged onset date. (R. 298, 305). The ALJ
ordered two consultative examinations from Dr. Antiaris two years apart in 2015 and
2017. (R. 291, 321). After each psychiatric evaluation, Dr. Antiaris reported mild
findings after conducting mental status examinations and assessed mildly impaired
attention, concentration and memory. (R. 321-23). Plaintiff argues that the ALJ
misconstrued Dr. Antiaris’ opinion by failing to incorporate her conclusion that
Plaintiff’s symptoms may significantly interfere with his ability to function on a daily
basis. (Pl. Br. at 12). However, the ALJ acknowledged Dr. Antiaris’ conclusion
regarding Plaintiff’s ability to function, (R. 24), and he expressly accounted for the
limitations identified by Dr. Antiaris by restricting Plaintiff to simple, unskilled work. (R.
23-24).
The Court, therefore, concludes that the ALJ adhered to the treating physician rule
in making his findings.
B. The ALJ’s Finding that Plaintiff’s Impairments Did Not Meet or Equal a Listed
Impairment
Under a theory of presumptive disability, a claimant may be eligible for benefits if he has
an impairment that meets or equals an impairment found in the Listing of Impairments. See 20
C.F.R. § 404.1520(d); 20 C.F.R. Pt. 404, Subpt. P, App. 1. The listings specify the criteria for
impairments that are considered presumptively disabling. See 20 C.F.R. § 404.1525(a). A

3650162, at *13 (S.D.N.Y. July 31, 2018) (quoting Bussi v. Barnhart, No. 01 Civ. 4330 (GEL), 2003 WL 21283448,
at *8 (S.D.N.Y. June 3, 2003)). A court may uphold an ALJ’s determination where the record is “adequate to permit
an informed finding.” Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (2d Cir. 2013). The Court finds that the
ALJ fulfilled his duty to develop the record. The ALJ contacted both Dr. Veselinovic and St. Joseph’s Hospital
multiple times for records, and he obtained sufficient information to make an informed finding. (R. 131, 326, 335).

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claimant may also demonstrate presumptive disability by showing that his impairment is
accompanied by symptoms that are equal in severity to those described in a specific listing. See
20 C.F.R. § 404.1526(a).
Plaintiff contends that the ALJ committed legal error by evaluating Plaintiff’s impairment
under listing 12.05, which governs intellectual disorders, as opposed to listing 12.04, which
applies to affective disorders such as depression and bipolar disorder. (Pl. Br. at 17-18). In
response, the Commissioner maintains that the ALJ adequately considered whether Plaintiff
suffered from any impairment listed in section 12.00 of Appendix 1 for Mental Disorders and,
even if the ALJ did not explicitly cite listing 12.04, his analysis addressed and applied all the
relevant elements. (Def. Br. at 29-30).
An ALJ who makes an adverse finding at step three of the sequential analysis must “set
forth a specific rationale” to support his conclusion. Berry v. Schweiker, 675 F.2d 464, 468 (2d
Cir. 1982). However, “the absence of an express rationale does not prevent [the Court] from
upholding the ALJ’s determination” regarding the claimed impairments if “the ALJ’s decision
and the evidence before him indicate that his conclusion was supported by substantial evidence.”
Id.; see also Solis v. Berryhill, 692 Fed. App’x 46, 48 (2d Cir. 2017) (“Although the ALJ did not
explicitly discuss Listing 11.14, his general conclusion (that [plaintiff] did not meet a listed
impairment) is supported by substantial evidence.”). In this case, although the ALJ did not
explicitly cite listing 12.04 in his analysis, his general conclusion that Plaintiff did not meet any
listing under section 12.00 of Appendix 1 for Mental Disorders is supported by substantial
evidence, and remand is not required.
Even if the ALJ’s failure to provide legal analysis under listing 12.04 was an error, the
Court finds such error harmless. A claimant can show that his impairment meets or equals the

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severity of listing 12.04 by demonstrating that he satisfies the criteria of paragraphs A and B, or
that he satisfies the criteria of paragraphs A and C. See 20 C.F.R. Part 404, Subpart P, Appendix
1, § 12.04. “For a claimant to show that his impairment matches a listing, [he] must meet all of
the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). ALJ Katz expressly
considered whether Plaintiff satisfied the requirements of paragraphs B and C, which are
necessary elements of demonstrating an impairment under listing 12.04.
The paragraph B requirements are identical for listings 12.04 and 12.05. Under both
listings, a claimant must demonstrate an extreme limitation of one, or marked limitation of two,
in the following areas of mental functioning: (1) understanding, remembering, or applying
information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; or (4)
adapting or managing oneself. 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 12.04(B);
12.05(B). In this case, the ALJ provided a thorough explanation for why Plaintiff did not satisfy
the paragraph B criteria and found that Plaintiff had moderate limitations understanding,
remembering, or applying information, no limitations interacting with others, moderate
limitations concentrating, persisting, or maintaining pace, and no limitations adapting or
managing himself. (R. 20-21). Plaintiff argues that in reaching his decision, the ALJ ignored
treating and consultative medical opinions. However, the ALJ explained his findings in detail,
relying upon Plaintiff’s testimony and examinations from consulting physicians, including the
examinations of Dr. Nobel and Dr. Antiaris. (R. 20-21). For the reasons discussed earlier, the
ALJ properly assigned limited weight to the extreme restrictions cited by Dr. Veselinovic. See
Section II.A, supra. Accordingly, the Court finds that the ALJ’s conclusion that Plaintiff did not
satisfy the paragraph B requirements is supported by substantial evidence.

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The ALJ also assessed whether Plaintiff satisfied the requirements of paragraph C. (R.
22-23). Under paragraph C, a claimant must have a “serious and persistent” mental disorder as
evidenced by both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly
structured setting(s) that is ongoing and that diminishes the symptoms and signs
of your mental disorder (see 12.00G2b); and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in
your environment or to demands that are not already part of your daily life
(see 12.00G2c).
20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.04(C). ALJ Katz expressly considered both
requirements and found that there was no evidence that Plaintiff met either of the paragraph C
requirements. (R. 22-23). Having reviewed the record, the Court finds that substantial evidence
also supports the ALJ’s finding with respect to satisfaction of the paragraph C criteria.
Because the Court affirms the ALJ’s findings under both paragraphs B and C, Plaintiff
would not be able to meet his burden under listing 12.04 even if the ALJ had explicitly considered
the requirements of paragraph A set forth under listing 12.04. Under these circumstances, remand
is not appropriate. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) (“Where application of
the correct legal standard could lead to only one conclusion, we need not remand.”); Correa v.
Comm’r of Soc. Sec. Admin., No. 16 Civ. 01234 (VLB), 2017 WL 4457442, at *9 (D. Conn. Oct.
6, 2017) (ALJ’s failure to analyze the applicable listing did not require remand where plaintiff
would be unable to meet her burden under said listing).

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III. CONCLUSION
For the foregoing reasons, Plaintiff’s motion is denied, and the Commissioner’s crossmotion is granted. The Clerk is respectfully requested to terminate the pending motions, (Docket
Nos. 20-1, 23), and close the case.
Dated:

July 22, 2019
White Plains, New York
SO ORDERED:

_______________________________
_______________________
__
__
JUDITH C M CARTHY
UDITH C. McCARTHY
United States Magistrate Judge

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