Opinion
5:21-CV-576
09-06-2022
CASSANDRA G., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
HOWARD D. OLINSKY, ESQ., OLINSKY LAW GROUP, Attorneys for Plaintiff, 250 South Clinton Street, Suite 210, Syracuse, NY 13202. CANDACE LAWRENCE, ESQ., Special Ass't U.S. Attorney, SOCIAL SECURITY ADMINISTRATION, Attorneys for Defendant, J.F.K. Federal Building, Room 625, 15 New Sudbury Street, Boston, MA 02203.
HOWARD D. OLINSKY, ESQ., OLINSKY LAW GROUP, Attorneys for Plaintiff, 250 South Clinton Street, Suite 210, Syracuse, NY 13202. CANDACE LAWRENCE, ESQ., Special Ass't U.S. Attorney, SOCIAL SECURITY ADMINISTRATION, Attorneys for Defendant, J.F.K. Federal Building, Room 625, 15 New Sudbury Street, Boston, MA 02203. ORDER ON REPORT & RECOMMENDATION DAVID N. HURD, United States District Judge
On May 19, 2021, plaintiff Cassandra G. ("plaintiff" or "claimant") filed this action seeking review of the final decision of defendant Commissioner of Social Security ("Commissioner" or "defendant") denying her application for Supplemental Security Income ("SSI") under the Social Security Act (the "Act"). Dkt. No. 1.
In accordance with a May 1, 2018 memorandum issued by the Judicial Conference's Committee on Court Administration and Case Management and adopted as local practice in this District, only claimant's first name and last initial will be mentioned in this opinion.
After the Commissioner filed a certified copy of the Administrative Record, Dkt. No. 9, both parties briefed the matter in accordance with General Order 18, which provides that an appeal taken from a final decision denying benefits will be treated as if the parties have filed cross-motions for a judgment on the pleadings, Dkt. Nos. 14, 17.
On August 16, 2022, U.S. Magistrate Christian F. Hummel advised by Report & Recommendation ("R&R") that plaintiff's motion for a judgment on the pleadings be granted, the Commissioner's motion for a judgment on the pleadings be denied, the Commissioner's decision be reversed, and that this matter be remanded for further administrative proceedings. Dkt. No. 18.
Neither party has filed objections, and the time period in which to do so has expired. See Dkt. No. 18. Upon review for clear error, the R&R will be accepted and adopted in all respects. See FED. R. CIV. P. 72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation is ACCEPTED;
2. Plaintiff's motion for a judgment on the pleading is GRANTED;
3. The Commissioner's motion for a judgment on the pleadings is DENIED;
4. The Commissioner's decision is REVERSED and VACATED; and
5. This matter is REMANDED for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
REPORT-RECOMMENDATION AND ORDER
This matter was referred to the undersigned for completion of a Report and Recommendation in accordance with General Order 18 and Local Rule 72.3(d). See Dkt. No. 6.
Christian F. Hummel U.S. Magistrate Judge
Cassandra G. ("plaintiff" or "the claimant") brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("the Commissioner") denying her application for supplemental security income benefits. See Dkt. No. 1 ("Compl."). Plaintiff moves for reversal of the Commissioner's decision and remand for further proceedings. See Dkt. No. 14. The Commissioner moves for judgment on the pleadings. See Dkt. No. 17. For the following reasons, it is recommended that plaintiff's motion be granted, the Commissioner's motion be denied, and the Commissioner's decision be reversed and remanded for further proceedings.
In accordance with guidance from the Committee on Court Administration and Case Management of the Judicial Conference of the United States, which was adopted by the Northern District of New York in 2018 to better protect personal and medical information of non-governmental parties, this Memorandum-Decision and Order will identify plaintiff's last name by initial only.
I. Background
On April 11, 2018, plaintiff filed a Title XVI application for supplemental security income benefits. See T. at 51, 133-39. Plaintiff alleged a disability onset date of August 11, 2018. See id. at 51. The Social Security Administration ("SSA") initially denied plaintiff's claim on September 20, 2018. See id. at 68-72. Plaintiff requested a hearing, see id. at 75, and a hearing was held on March 9, 2020, before Administrative Law Judge ("ALJ") P. H. Jung. See id. at 28-50. The ALJ issued an unfavorable decision on March 30, 2020. See id. at 8-26. The Appeals Council denied plaintiff's request for review on March 15, 2021. See id. at 1-5. Plaintiff timely commenced this action on May 19, 2021. See Compl.
"T." followed by a number refers to the pages of the administrative transcript filed by the Commissioner. See Dkt. No. 9. Citations to the administrative transcript refer to the pagination in the bottom, right-hand corner of the page, not the pagination generated by CM/ECF.
II. Legal Standards
A. Standard of Review
In reviewing a final decision of the Commissioner, a district court may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1388(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985-86 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial evidence is "more than a mere scintilla," meaning that in the record one can find "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)). The substantial evidence standard is "a very deferential standard of review . . . . [This] means once an ALJ finds facts, we can reject [them] only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (internal quotations marks, citation, and emphasis omitted). Where there is reasonable doubt as to whether the Commissioner applied the proper legal standards, the decision should not be affirmed even though the ultimate conclusion is arguably supported by substantial evidence. See Martone v. Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986). However, if the correct legal standards were applied and the ALJ's finding is supported by substantial evidence, such finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citation omitted).
B. Determination of Disability
"Every individual who is under a disability shall be entitled to a disability . . . benefit . . . ." 42 U.S.C. § 423(a)(1)(E). Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months[.]" Id. § 423(d)(1)(A). A medically-determinable impairment is an affliction that is so severe that it renders an individual unable to continue with his or her previous work or any other employment that may be available to him or her based upon age, education, and work experience. See id. § 423(d)(2)(A). Such an impairment must be supported by "medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3). Additionally, the severity of the impairment is "based on objective medical facts, diagnoses[,] or medical opinions inferable from [the] facts, subjective complaints of pain or disability, and educational background, age, and work experience." Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. § 404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he [or she] is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his [or her] physical or mental ability to do basic work activities.Berry, 675 F.2d at 467 (spacing added). "If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003). The plaintiff bears the initial burden of proof to establish each of the first four steps. See DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful employment somewhere. Id. (citing Berry, 675 F.2d at 467).
If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him [or her] disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he [or she] has the residual functional capacity to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past work, the [Commissioner] then determines whether there is other work which the claimant could perform.
III. The ALJ's Decision
Applying the five-step disability sequential evaluation, the ALJ first determined that plaintiff had "not engaged in substantial gainful activity since April 11, 2018, the application date[.]" T. at 13. At step two, the ALJ found that plaintiff had "the following severe impairments: valvular heart disease post mitral valve surgery, lumbar disorder, asthma, depression, anxiety disorder, and history of posttraumatic stress disorder [("PTSD")][.]" Id. At step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. See id. at 14. Before reaching step four, the ALJ concluded that plaintiff retained the residual functional capacity ("RFC")
to perform light work as defined in 20 CFR 416.967(b) except the claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. She can stand/walk 6 hours and sit 6 hours in an 8-hour workday. She can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. She can never climb ladders, ropes, or scaffolds. She should avoid frequent exposure to extreme cold; extreme heat; wetness; humidity; vibration; fumes, odors, dusts, gases; poor ventilation; and hazards, machinery, and heights. The claimant is further limited to simple, repetitive, routine tasks; limited to making simple work-related decisions; and frequent interaction with supervisors, co-workers, and the public.Id. at 16. At step four, the ALJ determined that plaintiff was "capable of performing past relevant work as a cashier[.]" Id. at 20. Additionally, at step five, the ALJ determined that "there are other jobs that exist in significant numbers in the national economy that the claimant also can perform, considering the claimant's age, education, work experience, and residual functional capacity[.]" Id. Thus, the ALJ determined that plaintiff "ha[d] not been under a disability as defined in the Social Security Act, since April 11, 2018, the date the application was filed[.]" Id. at 22.
IV. Discussion
The Court's citations to the parties' briefs refer to the pagination generated by CM/ECF in the pages' headers.
Plaintiff argues that the ALJ "erroneously evaluated" a medical opinion from plaintiff's treating therapists and failed "to properly evaluate a series of opinions regarding [p]laintiff's employability submitted to the state board." Dkt. No. 14 at 12, 16. The Commissioner argues that the ALJ appropriately assessed the medical opinions, and that the decision is supported by substantial evidence. See generally Dkt. No. 17.
A. Relevant Records and the ALJ's Decision
1. Treating Therapist's Opinion
Isabella M. Geraghty, a student intern, and Meaghan Malaney, LMFT, submitted a 2020 medical source statement. See T. at 972-76. They diagnosed plaintiff with PTSD and mood disorder. See id. at 972. They stated that "[b]oth disorders have poor prognosis. PTSD causes [plaintiff] to be emotionally triggered and impacts daily living. Mood disorder causes significant irritability as well as anger outbursts and paranoia." Id. They checked a number of boxes indicating plaintiff's symptoms such as anhedonia, impulsive behavior, decreased energy, thoughts of suicide, feelings of guilt, anxiety, difficulty thinking or concentrating, recurrent or intrusive thoughts, personality changes, paranoid thinking, emotional withdrawal, bipolar syndrome, disturbed thinking, hallucinations, hyperactivity, problems with impulse control, flight of ideas, manic syndrome, mood and affect disturbances, illogical thinking, pathologically inappropriate suspiciousness, distractibility, sleep disturbance, decreased need for sleep, and recurrent panic attacks. See id. They opined that plaintiff had "[n]o useful ability to function" in interacting appropriately with the general public and traveling to unfamiliar places. Id. at 973. They also determined that plaintiff was "[s]eriously limited, but not precluded" from remembering work-like procedures; understanding, remembering, and carrying out short and simple instructions; maintaining attention for two hours and regular attendance; sustaining an ordinary routine; working in coordination with others; making simple work-related decisions; performing at a consistent pace; asking simple questions; accepting instructions and responding appropriately to supervisors; getting along with co-workers; responding appropriately to changes in the work setting; dealing with normal work stress; being aware of normal hazards; maintaining socially appropriate behavior; and adhering to basic standard of neatness. Id. Finally, they opined that plaintiff had a "[l]imited but satisfactory" ability to use public transportation. Id.
The ALJ states Ms. Malaney's first name as "Meoshan." T. at 14, 19. Plaintiff refers to her as "Meghan" and the Commissioner spells her first name as "Meaghan." Dkt. No. 14 at 12; Dkt. No. 17 at 7. Treatment plans from plaintiff's therapy records indicate that Ms. Malaney's first name is spelled "Meaghan." T. at 930, 950.
In explaining their opined limitations, the providers wrote that plaintiff "exhibits mostly limitations due to a difficulty in struggling with memory, coordination of schedules and with others, ability to maintain a schedule as the main presenting limitations." T. at 973. They wrote that "[t]his is evidenced through self-reporting session. She also struggles with the unknown, hence struggles with the general public and unfamiliar places." Id. They explained their treatment practice as using "mostly a trauma-informed practice that focuses on establishing safety as well as narrative theory to help make sense and regaining [indiscernible] of triggers." Id. at 974. They checked the box to indicate that plaintiff had deficiencies in concentration, persistence, and pace; and that she would be off task for more than twenty percent of a workday and miss more than four days of work per month. See id.
In discussing the RFC determination, the ALJ determined that "their opinion is not persuasive." T. at 19. The ALJ explained that Ms. Geraghty and Malaney "support their statement based upon symptoms including an inability to keep a schedule and periods of paranoia. Yet, their records do not support their assertion as the claimant regularly keeps her appointments and has not had significant paranoia during the relevant period." Id. (citing T. at 338, 348, 350, 361, 924, 928, 937-38, 956, 965, 967). The ALJ stated that "[a]s explained above, their opinion is not consistent with the record." Id.
2. Employability Assessments
In 2017, Mary Gale Gurnsey, LMFT, completed an Onondaga County Department of Social Services Mental Health Employability Assessment. See T. at 669-70. Ms. Gurnsey listed plaintiff's diagnoses as unspecified mood disorder, PTSD, and psychotic disorder. See id. at 669. She listed plaintiff's symptoms as "irritability, outbursts of anger, blackouts, [ ] paranoia . . . inability to express emotions, nightmares, suicidal thoughts . . . visual and auditory hallucinations [and] social perception disturbances." Id. Ms. Gurnsey indicated that plaintiff had no evidence of limitations in her ability to follow, understand, and remember simple instructions, maintain a schedule and attend to a daily routine, or maintain basic standards of personal hygiene; she had moderate limitations in her ability to perform low stress, simple, and complex tasks, and maintain attention and concentration; and severe limitations in her ability to interact appropriately with others and function in a work setting. See id.
In 2017, Kristin Platt, LCSW-R, filled out an Onondaga County Employability Assessment wherein she listed plaintiff's diagnoses as PTSD, psychotic disorder, cannabis use disorder, and "cocaine dependence in remission." T. at 671. Ms. Platt indicated that there was no evidence of limitation in plaintiff's ability to follow, understand, and remember simple instructions, maintain a schedule, attend to a daily routine, and maintain attention and concentration. See id. She checked the boxes to indicate that plaintiff was moderately limited in her ability to perform low stress, simple, and complex tasks; maintain basic standards of personal hygiene; and function in a work setting. See id. Finally, she checked the boxes for moderately and severely limited and drew an arrow between them for plaintiff's ability to interact with others and maintain socially appropriate behavior. See id. In 2018, Ms. Platt submitted a second employability assessment. See id. at 674. Ms. Platt noted the same diagnoses and checked the same boxes as her 2017 opinion. See id. at 673.
In 2018, Melinda Myers, NP, and Kelly Belmontes, LMHC, completed an employability assessment. See T. at 675-76. They listed plaintiff's diagnoses as mood disorder, psychotic disorder, PTSD, cocaine dependence, and cannabis use disorder. See id. at 675. They opined that plaintiff was "[s]everely limited" in every mental health category. Id. In 2019, Ms. Belmontes completed another employability assessment. See id. at 677-78. Ms. Belmontes noted plaintiff's diagnoses as mood disorder, psychotic disorder, cocaine dependence "in remission," and cannabis use disorder. Id. at 677. Ms. Belmontes determined that plaintiff was "[s]everly limited in every mental health category. See id.
The ALJ cites an employability assessment from "Kelly Gemonies, LMHT[.]" T. at 19 (citing T. at 677-78). Plaintiff and the Commissioner reiterate the provider's name in the same manner as the ALJ. See Dkt. No. 14 at 7; Dkt. No. 17 at 18. However, on review of the Employability Assessment and plaintiff's therapy records, the undersigned concludes that the provider's last name is "Belmontes[,]" and she is a Licensed Mental Health Counselor or LMHC. T. at 676, 678, 955.
The ALJ addressed the Employability Assessments together and stated that "[t]hese opinions are not supported. They are checkbox forms without attached support for the limitations. They are also not consistent with the record as explained above." T. at 20.
3. Other Portions of the ALJ's Decision
Earlier in the decision, when discussing whether plaintiff's impairments met or medically equaled a Listing, the ALJ reviewed the "paragraph B" criteria related to mental health impairments. T. at 14-16. The ALJ first noted that "[i]n understanding, remembering or applying information, the claimant has a moderate limitation." Id. at 14. The ALJ explained that "[t]he record supports limitations in this category. The claimant's grade card shows grades from A's to F's and she withdrew in 9th grade. Sometimes on testing, she presents as low average intelligence. Sometimes her memory is limited." Id. (citing T. at 233, 236, 306, 314, 382). The ALJ stated that "M. Marks, Ph.D., found the claimant had a mild limitation in this category[,] Dennis M. Noia, Ph.D., opined that the claimant would have mild limitations in performing complex tasks[,]" and "[i]n a series of opinions provided to Onondaga County Department of Social Services, multiple providers indicated from no limitations to serious limitations in this category." Id. (citing T. at 57-59, 383, 669-78). The ALJ also noted that Ms. Geraghty and Malaney "opined the claimant had a serious limitation in this category." Id. (citing T. at 972-76). The ALJ explained that "[t]he variety of statements from examining and reviewing doctors support that the claimant has limitations. The record shows she also retains fair functioning. Based upon her retained abilities, a moderate limitation is appropriate." Id. The ALJ stated that, "[t]hird party observations indicate [that plaintiff] has fair function. During her field office interview, the claimant had no difficulty understanding or answering questions. Her own statements indicate fair ability. She is able to follow written and spoken instructions." Id. (citing T. at 152, 184). Additionally, the ALJ explained that plaintiff's "general clinical presentation is consistent with fair abilities. She presents with appropriate fund of knowledge. Her thought content is also normal." Id. (citing T. at 306, 314, 382, 744, 773, 912). The ALJ noted that, "[o]n testing, [plaintiff] shows fair remaining abilities. During her consultative examination, she remembered 3 items immediately and after a 5-minute delay and was able to repeat 5 numbers forward and 3 numbers backward." Id. at 15 (citing T. at 382). Finally, the ALJ stated that plaintiff's "activities, such as playing video games, cooking, and performing household chores, support that she has fair abilities in this category." Id. (citing T. at 179, 181, 327, 382).
As to interacting with others, the ALJ determined that plaintiff had a moderate limitation. See T. at 15. The ALJ stated that plaintiff indicated that she was "limited in this category. She does not like people. She reports being paranoid and having trouble getting along with her roommates." Id. (citing T. at 182, 320, 326). The ALJ also stated that, "Valenda Hohn, the claimant's care manager at Liberty Resources, indicated that the claimant continues to have mood swings that interfere with her abilities. Therefore, the record supports limitations." Id. (citing T. at 240). However, the ALJ explained that plaintiff
does not exhibit severe limitations on examination. Her moods on examination are generally normal. Her providers note her moods are stable. Her social skills are adequate. She provides good eye contact and is cooperative. After beginning treatment, she reported infrequent paranoia or blackouts. Her infrequent complaints led to 6 months without psychosis or blackouts. The claimant indicates she is able to get along with friends and family. She retains the ability to go shopping in stores. Her general functioning and activities support fair remaining function.Id. (citing T. at 180, 306, 314, 338, 350, 361, 381-82, 386, 401, 689, 693, 697, 702, 706, 714, 744, 773, 848, 895, 912, 928, 958, 965, 969). The ALJ explained that "[t]he employment opinions for the county indicate a range of limitations from moderate to serious[ ]" and "Ms. Geraghty and Malaney opined a serious limit in this category. The serious limitations are not consistent with the claimant's clinical presentation that indicates stability to moods and adequate skills." Id. (citing T. at 972-76). The ALJ noted that "Dr. Noia opined the claimant had no limitation in this category. Dr. Marks found a mild limitation. The mild to no limitations are not consistent with third party indications that the claimant has difficulty controlling her moods beyond what is seen in the medical records." Id. (citing T. at 58, 383). Accordingly, the ALJ determined that "[a] moderate limitation is consistent with the record." Id.
As to concentrating, persisting, and maintaining pace, the ALJ determined that plaintiff had a moderate limitation. See T. at 15. The ALJ explained that "[t]he medical statements regarding the claimant's ability in this category vary widely from no limitation, such as some of the reports to the county and the consultative examiner's opinion, to serious limitations, such as some of the reports to the county and the therapist's statement." Id. (citing T. at 58, 383, 669-78, 972-76). The ALJ stated that "[t]he record demonstrates some limitations in this category based on the claimant's statements and her grounds for seeking treatment, which is inconsistent with the statements that the claimant has no limitations in this category." Id. The ALJ recounted plaintiff's subjective complaints that she had "panic attacks that interrupt her ability to sustain concentration. She also indicates she lacks energy or motivation to perform basic tasks. When she sought treatment, she described periods of blackouts and paranoia." Id. (citing T. at 187, 205, 361). "However," the ALJ determined that "the record supports retained capabilities inconsistent with the serious limitations in the medical statements. The claimant presents as alert and oriented, without notations of excessive fatigue or distractibility. She demonstrates adequate attention. Her complaints of panic, paranoia, and blackouts are controlled." Id. (citing T. at 306, 314, 329, 349-50, 361, 382, 386, 401, 689, 693, 697, 702, 706, 744, 773, 848, 912, 928, 945). Finally, the ALJ explained that "[o]n testing, she performed serial 3's but not 7's and performed simple calculations, indicating intact concentration for simple tasks. Her activities show retained ability in this category. She watches television, draws, plays on her computer, and performs crafts." Id. (citing T. at 181, 327, 382, 939). Thus, the ALJ concluded that "[a] moderate limitation is reasonable based upon the record." Id.
As to adapting or managing oneself, the ALJ determined that plaintiff had a mild limitation. See T. at 16. The ALJ first indicated that "Dr. Marks found the claimant had a mild limitation in this category. Dr. Noia also found the claimant had a mild limitation in controlling her emotions and behaviors. These mild limitations are consistent with the record." Id. (citing T. at 58, 382). The ALJ noted that plaintiff "demonstrates some difficulty with managing herself based on some difficulty with consistent attendance. She exhibits periods of inconsistent attendance to treatment. The record also indicates some difficulty in this category based on daily marijuana use." Id. (citing T. at 307, 357, 359, 935). The ALJ next explained that plaintiff's "therapists and the reports to the county indicated from none to serious limitations in this category. Moderate and serious limitations are not consistent with the record." Id. (citing T. at 669-78, 972-76). The ALJ stated that plaintiff's "attendance issues are partly based upon transportation issues. Typically, she exhibits good attendance for treatment. She shows a significant ability to adapt. Once she began treatment, she demonstrated her ability to adapt by regularly increasing and using her coping skills outside of treatment." Id. (citing T. at 320, 333, 339, 345, 348, 924, 937-38, 945, 948, 954, 956-57, 964, 967). The ALJ also noted that plaintiff's "medications are useful in controlling her symptoms." Id. (citing T. at 325, 335-36, 346, 381). The ALJ explained that plaintiff "exhibits fair insight, judgment, and control over her impulses[ ]" and "an ability to manage herself by maintaining appropriate grooming." Id. (citing T. at 178, 306, 314, 381-82, 689, 693, 697, 702, 706, 912). Finally, the ALJ stated that plaintiff's "remaining abilities, the minimal abnormalities during examination, and her increased control through treatment are consistent with a mild limitation in this category." Id.
B. Analysis
Under the relevant regulations, the Commissioner must consider all medical opinions and "evaluate the[ir] persuasiveness" based on their supportability and consistency, the author's relationship with the claimant and specialization, and "other factors." 20 C.F.R. § 416.920c(a)-(c). Although the ALJ is not required to assign a specific "weight" to a medical opinion, the ALJ must still "articulate how [he or she] considered the medical opinions" and "how persuasive [he or she] find[s] all of the medical opinions." Id. § 416.920c(a) and (b)(1). The ALJ must expressly "explain how [he or she] considered the supportability and consistency factors" for a medical opinion. Id. § 416.920c(b)(2). "[S]upportability" means that "[t]he 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 opinions or prior administrative medical finding(s) will be." Id. § 416.920c(c)(1). "[C]onsistency" means that "[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be." Id. § 416.920c(c)(2).
The ALJ is not required to discuss the remaining factors unless he or she finds that two or more medical opinions are equally supported and consistent with the record. See 20 C.F.R. § 416.920c(b)(3).
"An ALJ is required to explain his or her consideration of these factors and is not entitled to generally assert that an opinion is 'consistent with' or 'supported by' the record, without further elaboration." Dana Marie M. v. Comm'r of Soc. Sec., No. 6:21-CV-458 (GLS/CFH), 2022 WL 2314560, at *6 (N.D.N.Y. June 28, 2022) (citing Melissa S. v. Comm'r Soc. Sec., No. 5:21-CV-420 (DJS), 2022 WL 1091608, at *4 (N.D.N.Y. Apr. 12, 2022) ("[T]he ALJ does nothing more than state that the opinion is inconsistent with the record but offers no explanation as to how that is true."); Kathleen A. v. Comm'r of Soc. Sec. Admin., No. 3:20-CV-1034 (LEK), 2022 WL 673824, at *6 (N.D.N.Y. Mar. 7, 2022) ("[I]t is not sufficient for an ALJ to merely discuss other medical sources at some point in the decision.")). However, if an "ALJ commit[s] procedural error by failing to explain how [he or she] considered the supportability and consistency of medical opinions in the record[,]" the Court "could affirm if a searching review of the record assures [the Court] that the substance of the [regulation] was not traversed." Loucks v. Kijakazi, No. 21-1749, 2022 WL 2189293, at *2 (2d Cir. June 17, 2022) (summary order) (quoting Estrella v. Berryhill, 925 F.3d 90, 96 (2d Cir. 2019); Halloran, 362 F.3d at 32).
1. Plaintiff's Treating Therapist
Plaintiff argues that the ALJ erred in evaluating Ms. Geraghty and Malaney's opinion because (1) "it is unclear what the ALJ means by 'significant' paranoia as this term is not defined or explained in any meaningful way[ ]"; (2) "[i]f the ALJ is asserting [p]laintiff did not suffer from paranoia at all during the relevant period, this is false[ ]" as the record reflects instances of hallucinations and paranoia; (3) the ALJ ignored the "supporting statements" provided in the opinion; and (4) the ALJ failed to explain how plaintiff's ability "to keep bi-weekly treatment appointments," does not support their opinion that plaintiff could not maintain a schedule. Dkt. No. 14 at 12-16.
The Commissioner contends that the ALJ appropriately considered the supportability of the opinion and that the determinations are supported by substantial evidence. See Dkt. No. 17 at 13-16. The Commissioner contends that "the evidence [that plaintiff] relies on—some of which predates her alleged disability onset—does not support her claim that she experienced paranoia (or any other psychotic symptoms) during the relevant period." Id. at 14. As to plaintiff's ability to attend appointments, the Commissioner asserts that the ALJ appropriately considered plaintiff's consistent attendance at her appointments and accurately determined that plaintiff had no more than moderate limitations in concentration and memory. See id. at 17.
Plaintiff first asserts that the ALJ did not define "significant" when stating that Ms. Geraghty and Malaney's "records do not support their assertion as the claimant . . . has not had significant paranoia during the relevant period." Dkt. No. 14 at 12; T. at 19. The ALJ did not define "significant." T. at 19. However, as the Commissioner explains, the ALJ cited records indicating that plaintiff "report[ed] no blackouts and a significant decrease in paranoia[ ]"; "report[ed] experiencing more stable mood, less irritability, and decreased experiences of blackouts and paranoia[ ]"; made "some progress" towards decreasing symptoms from mood disorder including paranoia; stated that "there ha[d] not been any reports of paranoia or blackouts"; "ha[d] not achieved symptoms of psychosis for over 6 months. Symptoms are well managed with medication and coping skills." T. at 338, 350, 361, 928, 965; see Dkt. No. 17 at 16.
Plaintiff acknowledges that her symptoms continued to improve. See Dkt. No. 14 at 13; see T. at 338, 350, 361, 928, 965. Plaintiff does not identify evidence in the record which indicates that despite her improvement, she continued to experience paranoia during the relevant period that would support the severe limitations in Ms. Geraghty and Malaney's medical opinion. See generally Dkt. No. 14; cf. Loucks, 2022 WL 2189293, at *2 (explaining that the ALJ's procedural error was not harmless because "the ALJ selectively relied on portions of the record that showed improvement without even addressing the weight of the evidence supporting the fact that [the plaintiff] continued to have serious psychiatric symptoms even after years of treatment and steadily increasing medication."). Rather, the record indicates that after April 11, 2018, the application date, plaintiff did not have "any reports of paranoia or blackouts[.]" T. at 928. Accordingly, the undersigned finds no error in the ALJ's conclusion that plaintiff did not have "significant paranoia" during the relevant period. Id. at 19; cf. Kristen F. v. Comm'r of Soc. Sec. Admin., No. 3:20-CV-464 (ATB), 2021 WL 1668933, at *10 (N.D.N.Y. Apr. 27, 2021) (citations omitted) ("[T]he ALJ relied, in part, on [the] plaintiff's failure to follow up with her hand specialist and her failure to take [the provider's] suggestion to go back to the pain clinic to evaluate whether a nerve block would help. The ALJ [ ] correctly noted that [the] plaintiff's subsequent primary care records did not show any ongoing signs of distress or deficits in strength, sensation, or fine manipulative functioning.").
Plaintiff alleged disability beginning on April 11, 2018. See T. at 51; see also Carway v. Colvin, No. 13-CV-2431 (SAS), 2014 WL 1998238, at *5 (S.D.N.Y. May 14, 2014) ("[M]edical evidence that predates the alleged disability onset date is ordinarily not relevant to evaluating a claimant's disability."); James N. v. Comm'r of Soc. Sec., No. 3:18-CV-1324 (CFH), 2020 WL 1140498, at *5 (N.D.N.Y. Mar. 6, 2020) ("Although it is within an ALJ's purview to consider pre-onset date evidence, it is not required.").
Next, plaintiff states that the ALJ "ignore[ed the] supporting statements" made in Ms. Geraghty and Malaney's opinion. Dkt. No. 14 at 14. The ALJ explicitly acknowledged that they "support[ed] their statement based upon symptoms including an inability to keep a schedule and periods of paranoia." T. at 19; see 20 C.F.R. § 416.920c(c)(1) ("The more relevant the [ ] 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 opinions or prior administrative medical finding(s) will be."). In addition to the check marks made on the medical source statement, Ms. Geraghty and Malaney wrote that plaintiff "exhibits mostly limitations due to difficulty in struggling with memory, coordination of schedules and with others, ability to maintain a schedule as the main presenting limitations. This is evidenced through self-report in session. She also struggles with the unknown, hence struggles with the general public and unfamiliar places[,]" and her "[m]ood disorder causes significant irritability as well as anger outbursts and paranoia." Id. at 972-73. The ALJ did not restate the providers' explanations, verbatim, and acknowledged only part of their supporting statements: that plaintiff's impairments result in paranoia and an inability to maintain a schedule. See id. at 19, 972-73.
The ALJ did not reiterate additional portions of their supporting statements: that plaintiff struggled interacting with others and being in unfamiliar places and her mood disorder caused emotional outbursts and irritability. See T. at 19, 972-73. To be sure, the ALJ did not state that plaintiff's paranoia and inability to keep a schedule were the only supporting explanations; rather, the ALJ stated that Ms. Geraghty and Malaney supported "their statement based upon symptoms including" those two. Id. at 19 (emphasis added). However, the ALJ is required to "explain" consideration of the supportability factor and erred in not discussing the entirety of the supporting explanations. 20 C.F.R. 416.920c(c)(1); see also Sutherland v. Barnhart, 322 F. Supp. 2d 282, 289 (E.D.N.Y. 2004) ("It is not proper for the ALJ to simply pick and choose from the transcript only such evidence that supports his determination, without affording consideration to evidence supporting the plaintiff's claims. It is grounds for remand for the ALJ to ignore parts of the record that are probative of the claimant's disability claim."). The ALJ similarly erred in his consistency analysis as the extent of the analysis at step-four summarily asserts that Ms. Geraghty and Malaney's opinion "is not consistent with the record." T. at 19; see also Loucks, 2022 WL 2189293, at *2 (citation omitted) (determining that the ALJ "committed procedural error" where the ALJ "did not address the consistency of [an] opinion except to say that 'it [was] inconsistent with the evidence of record during the relevant period.' ").
However, the undersigned could find these errors to be harmless "if a searching review of the record indicates that the substance of the [supportability] consistency factor[s] w[ere] not traversed." John L. M. v. Comm'r of Soc. Sec., No. 5:21-CV-368 (BKS/TWD), 2022 WL 2800902, at *5 (N.D.N.Y. July 18, 2022) (citing Loucks, 2022 WL 2189293, at *2). Based on the following, the undersigned concludes that the ALJ's errors are not harmless as a searching review of the record indicates that the regulations were traversed. Specifically, the undersigned finds error in the ALJ's conclusions concerning plaintiff's ability to interact with others and adapt and manage oneself as they relate to Ms. Geraghty and Malaney's opinion. See T. at 15-16, 19.
At step three, the ALJ reviewed the record and other medical opinions concerning plaintiff's mood, ability to get along with others, and adapt and manage herself. See T. at 15-16. Specifically, the ALJ explained that some of the "employment opinions for the county" found moderate limitations in interacting with others; Dr. Noia found no limitations in interacting with others; Dr. Marks found a mild limitation; plaintiff's "moods on examination are generally normal[ ]"; "[h]er providers note her moods are stable[ ]"; she indicated that she got along with friends and family; "[h]er social skills are adequate[ ]"; "she reported infrequent blackouts[ ]"; she had "6 months without psychosis or blackouts[ ]"; "[o]nce she began treatment, she demonstrated her ability to adapt by regularly increasing and using her coping skill outside of treatment[ ]"; and "[h]er medications are useful in controlling her symptoms." Id. at 15-16 (citing T. at 58, 306, 314, 320, 325, 333, 335-36, 339, 345-46; 381-82, 386, 401, 671, 673, 689, 693, 697, 702, 706, 714, 744, 773, 848, 895, 912, 945, 948, 954, 957-58, 964, 969). However, when discussing these records, the ALJ did not explain whether there were any treatment records from Ms. Geraghty and Malaney, which is necessary to analyze the supportability factor. See id. at 15-16. At step four, the ALJ also did not explain whether their treatment records supported their conclusions concerning plaintiff's mood or ability to get along with others. See id. at 19; see also 20 C.F.R. § 416.920c(c)(1) (explaining that the supportability factor concerns, in part "the objective medical evidence . . . presented by a medical source[.]"); Scott A. C. v. Kijakazi, No. 5:20-CV-1530 (BKS/DEP), 2022 WL 2965585, at *3 (N.D.N.Y. July 27, 2022) (determining that the ALJ's error as to the supportability factor were harmless because "the ALJ expressly noted the 'difficulties' and 'symptoms' [the p]laintiff displayed during Dr. Londin's examination, as recorded in Dr. Londin's evaluation[ ]" and stated that the plaintiff "had some difficulties in his neuropsychiatric evaluation in August 2017. However, these symptoms are inconsistent with the above noted records and the findings from the psychological consultative examination.").
The ALJ also did not, anywhere in the decision, acknowledge the portion of Ms. Geraghty and Malaney's supporting explanation that plaintiff "struggles with the unknown, hence struggles with the general public and unfamiliar places." T. at 973. This statement was written in support of their opined limitations that plaintiff has "[n]o useful ability to function" as it relates to interacting appropriately with the general public and traveling in unfamiliar places. Id. The ALJ did not discuss at step three of four whether plaintiff was capable of interacting with the public or traveling to unfamiliar places. See id. at 14-20. Rather, the ALJ relied, in part, on plaintiff's lack of paranoia and stable mood to determine that she had a moderate limitation in interacting with others; however, it is unclear to the undersigned how a stable mood and lack of paranoia or blackouts is indicative of an ability to interact with others. See id. at 15. The ALJ also stated that plaintiff reported that "[s]he does not like people" and that she was "paranoid and having trouble getting along with her roommates." Id. (citing T. at 182, 320, 326). The record indicates that plaintiff was making progress in "setting boundaries and effectively communicating with her roommates about what their roles are and advocating for herself as a roommate and not a maid." Id. at 929. Plaintiff was also able to communicate her emotional needs to her therapist, but not with others. See id. at 327, 333, 33. There do not appear to be any treatment records indicating that plaintiff was able to interact appropriately with the general public. Additionally, with the Employability Assessments and Ms. Geraghty and Malaney's opinions, there are six medical source statements indicating that plaintiff was severely limited in her ability to interact with others (Ms. Platt checked both the moderate and severe boxes for this category). See T. at 669-78, 973; see Elizabeth P. v. Comm'r of Soc. Sec., No. 3:20-CV-891 (CFH), 2022 WL 507367, at *13 (N.D.N.Y. Feb. 18, 2022) (distinguishing Tamara M. v. Saul, No. 3:19-CV-1138 (CFH), 2021 WL 1198359, at *10 (N.D.N.Y. Mar. 30, 2021), and noting that the Court could not glean the ALJ's rationale in rejecting a limitation which appeared to be supported by "all five medical opinions[.]").
At step three, the ALJ also relied on plaintiff's statements that she gets along with friends and family and that she goes shopping in stores. See T. at 19 (citing T. at 180, 382). However, the ALJ did not acknowledge that in plaintiff's Function Report, although she stated that she goes shopping, she also noted that she only goes "once per month, one hour[.]" Id. at 180-81; see Kelly W. v. Kijakazi, No. 3:20-CV-00948 (JCH), 2021 WL 4237190, at *10 (D. Conn. Sept. 17, 2021) (quoting Eldridge v. Colvin, No. 15-CV-3929 (NSR/PED), 2016 WL 11484451, at *15 (S.D.N.Y. June 29, 2016), report and recommendation adopted, 2016 WL 6534258 (S.D.N.Y. Nov. 2, 2016) (citation omitted) ("An ALJ may not rely on a claimant's daily activities to discredit her while 'wholly ignor[ing] the qualifications that [the p]laintiff placed on [her] ability to engage in [those] activities.' "). It is not evident how plaintiff's shopping once a month is indicative of an ability to interact appropriately with others on a sustained basis. It is also unclear how plaintiff's ability to interact with friends and family is inconsistent with Ms. Malaney and Geraghty's statement that plaintiff "struggles with the unknown" such as the general public and traveling to unfamiliar places. T. at 15, 382, 973; see also Acheampong v. Comm'r of Soc. Sec., 564 F. Supp. 3d 261, 273, n.22 (E.D.N.Y. 2021) (citing 20 C.F.R. §§ 404.1529(c)(3); 416.929(c)(3)) (quoting Moss v. Colvin, No. 13-CV-731 (GHW/MHD), 2014 WL 4631884, at *33 (S.D.N.Y. Sept. 16, 2014)) (quotation marks omitted) ("[T]he ALJ is permitted to consider [the p]laintiff's daily activities, such as travel and walking his children to and from school, in evaluating the intensity and persistence of his symptoms and reports of pain. However, [i]t is legal error to give excessive weight to a claimant's ability to perform basic daily activities when assessing his or her ability to engage in substantial gainful activity [because] [t]here are critical differences between activities of daily living (which one can do at his own pace when he is able) and keeping a full time job.").
Similarly, to the extent the ALJ relied on plaintiff's "social skills [being] adequate[ ]" during her consultative examination, T. at 15, 381, the Second Circuit "explained recently—and powerfully—in Estrella v. Berryhill, an ALJ commits legal error in resting his disability determination on 'a one-time snapshot of a claimant's status' because that episode 'may not be indicative of her longitudinal mental health.' " Colgan v. Kijakazi, 22 F.4th 353, 362 (2d Cir. 2022) (quoting Estrella, 25 F.3d at 98). To be sure, the ALJ did not rely solely on plaintiff's consultative examination, but also her "generally normal" mood, lack of paranoia, reports of not getting along with her roommates, and the medical opinions. T. at 15. However, given the additional supporting explanations and records that the ALJ did not discuss, the ALJ's summary conclusion that Ms. Geraghty and Malaney's opinion is not supported by their treatment records or supporting explanations and inconsistent with the record, the ALJ's conclusion is not supported by substantial evidence as it relates to plaintiff's ability to interact appropriately with others.
Further, the ALJ did not discuss the portion of Ms. Geraghty and Malaney's supporting statements that plaintiff's mood disorder resulted in "significant irritability as well as anger outbursts[.]" T. at 972. Plaintiff's treatment records indicate that she "still struggle[d] with irritability and unstable mood[ ]"; "[a]lthough she is able to identify the triggers most of the time, she doesn't express her emotional needs in healthy ways[ ]"; she had made "minimal progress towards" goal concerning her PTSD symptoms of emotional triggers and expressing emotional needs; "[s]he still experience[d] irritability, but it is less severe than previously[ ]"; [s]he relies on ignoring her emotional needs until she gets very upset and has an emotional outburst[ ]"; "[s]he struggles in high stress situations and struggles to always engage in healthy emotional expression[ ]"; she "still struggled with irritability, [but] increased her ability to manage her other symptoms of mood disorder[ ]"; "[s]he struggles to express her emotional needs to others, but it able to in session[ ]"; "[s]he still is experiencing irritability and difficulty maintaining relationships[ ]"; [s]he reports that she is still experiencing symptoms of PTSD daily, such as night terrors, phobia to fire, paranoia, and irritability . . . [but] the intensity is less severe[ ]"; she was "working to maintain a stable mood" and "boundaries with her roommates[ ]"; she made "progress as [plaintiff has reported a somewhat stable mood . . ."; she showed "continued progress on expressing her emotional needs and being vocal about them outside of the therapy room[ ]"; she had made progress in drawing boundaries and controlling her mood, but "more improvement can be made with stabilizing mood . . ."; she was "still struggling with her trauma and how it is still being triggered by her roommates[ ]"; she "still has room for improvement in terms of expressing appropriate means to communicate what she expects of her roommates[ ]"; and "it fits best to continue engaging about what healthy emotional expression means and what it looks like in a conversation." Id. at 320, 335-36, 338-39, 347, 350, 356, 358, 361, 929, 935, 939, 945, 969, 958. In her most recent treatment record, one of plaintiff's providers noted that plaintiff was "still presenting difficulties with regulating her irritability as well as her mood in general. For example, in session reports of her toxic living situations have shown that she struggles with her mood and finding more productive ways to healthily process her emotions . . . ." Id. at 928. Ms. Geraghty and Malaney's opinion was written two months after the most recent therapy record, and in their opinion, they stated that plaintiff was "still" experiencing "paranoid episodes as well as anger outbursts." Id. at 975. The ALJ did not discuss these records as part of the supportability or consistency analysis in how they relate to Ms. Geraghty and Malaney's opined limitations or supporting explanations that plaintiff has "significant irritability[.]" Id. at 972-73.
As to plaintiff's ability to maintain a schedule, plaintiff identifies two records in which her recent and remote memory were limited and one record in which she was noted to be having transportation issues and was unable to attend therapy appointments. See Dkt. No. 14 at 15 (citing T. at 306, 314, 940). The ALJ explicitly acknowledged the records showing that "[s]ometimes [plaintiff's] memory is limited[ ]" at step three of the decision. T. at 14 (citing T. at 306, 314). At step four, the ALJ explicitly cited the record that indicates that plaintiff "has been seeing therapist biweekly and has been experiencing transportation issues lately so her attendance has been scatters, mainly due to MAS issues." Id. at 938; see id. at 19. At step three, the ALJ stated that plaintiff "exhibits inconsistent attendance to treatment[ ]" and her "attendance issues are partly based upon transportation issues." Id. at 16 (citing T. at 357, 359, 935, 938); see also Patrick F. G. v. Comm'r of Soc. Sec., No. 1:20-CV-0537, 2021 WL 3421446, at *5 (W.D.N.Y. Aug. 5, 2021) (citations omitted) (affirming the ALJ's decision where, in part, "contrary to [the p]laintiff's assertion, the ALJ provided specific citation to the record to support his determination that the doctor's opined marked limitations were not supported by evidence in the record. The ALJ noted although [the p]laintiff 'at times had poor judgement and conflict with others, he has also had fair or good insight and judgment and ability to use various coping mechanisms to manage his emotions. In support of his determination the ALJ cited specific records.").
Although the ALJ correctly noted that plaintiff's attendance issues were sometimes due to transportation issues, the ALJ did not cite or discuss plaintiff's most recent treatment records, indicating "that many MD appointments have been missed and that there is a temporary hold on [plaintiff's] ability to schedule any further MD appointments until consultation with this therapist's supervisor." T. at 925-27. The ALJ also did not, anywhere in the decision, discuss Ms. Malaney and Geraghty's opinion that plaintiff would be off task for more than twenty percent of a workday and miss more than four days of work per month. See id. at 974. The ALJ then did not explain whether the records showing that plaintiff struggled with attending her appointments supported that opinion. See id. at 14-20; compare John L. M., WL 2800902, at *5 (citations omitted) ("[T]he undersigned conducted a searching review of the record and concludes that—despite the ALJ's failure to adequately explain the consistency factor—the substance of 20 C.F.R. § 416.920c(c)(2) has not been traversed. [The] opinion concerning [the p]laintiff's need to take unscheduled breaks and his limited ability to sit for prolonged periods of time, stay on-task, and maintain regular attendance is not consistent with the record as a whole.").
In arguing that the ALJ's decision is supported by substantial evidence, the Commissioner relies, in part, on treatment records which noted that plaintiff's PTSD symptoms continued to improve over time. See Dkt. No. 14-15. The ALJ is entitled to rely on a plaintiff's improvement in her symptoms when determining a plaintiff's RFC. See Glover v. Comm'r of Soc. Sec., No. 20-CV-6802 (ALC), 2022 WL 970517, at *7 (S.D.N.Y. Mar. 31, 2022) ("[T]he ALJ concluded that [a] medical source statement was 'not supported by explanation and relevant medical evidence[ ]' and that the "assessment of [the plaintiff's] condition was inconsistent with her level of outpatient treatment as well as her improvement after medical treatment." The Court explained that "[t]he record shows that [the plaintiff's] conditions improved with her outpatient treatment."); see also Frederick C. v. Comm'r of Soc. Sec., No. 1:19-CV-1078 (CFH), 2021 WL 466813, at *13 (N.D.N.Y. Feb. 9, 2021) (finding that the ALJ's RFC determination was supported by substantial evidence where the ALJ, in part, "[r]el[ied] on [the] plaintiff's treatment notes dating back to his initial consultation in July 2016 through his most recent appointment in April 2018, the ALJ found that [the] plaintiff's 'symptom's wax and wane, but have improved with treatment.' ").
Here, as explained, it is not clear to the undersigned how plaintiff's improvement in her paranoia and moods equates to Ms. Geraghty and Malaney's opinion being unsupported or inconsistent with the record as to plaintiff's ability to interact with others or adapt or manage herself where there are records indicating that she struggled in both areas which the ALJ did not address. See supra at 22-27. Additionally, Ms. Geraghty and Malaney's medical source statement is from March 2020 and states that plaintiff "still continues to experience paranoid episodes as well as anger outbursts." T. at 975. Treatment records indicate that plaintiff had made progress in drawing boundaries and controlling her mood, but "more improvement can be made with stabilizing mood"; "[t]here is room to help her elevate her mood and ground herself more[ ]"; "she feels especially triggered by people[ ]"; she was "still struggling with her trauma and how it is still being triggered by her roommates[ ]"; she "still has room for improvement in terms of expressing appropriate means to communicate what she expects of her roommates[ ]"; and "it fits best to continue engaging about what healthy emotional expression means and what it looks like in a conversation." Id. at 320, 339, 929, 935, 939. These records appear to indicate that despite her improvement, plaintiff was still experiencing symptoms to such a degree that her treating therapists determined that she was "[s]eriously limited" in nearly every mental health category. Id. at 973. The ALJ did not explain how plaintiff's treatment records, which show progress with her goals but the need for continued treatment, are inconsistent with the opinion that stated that plaintiff "still" experienced symptoms and opined severe limitations. Id. at 975.
To the extent plaintiff asserts that "Ms. Geraghty reports [p]laintiff has difficulty with concentration and memory, which leads to difficulty maintaining a schedule[,]" Dkt. No. 14 at 15, the Commissioner states that in the ALJ's Listing analysis, the ALJ concluded that plaintiff did not have more than a moderate limitation in maintaining attention or concentration. See Dkt. No. 17 at 17. At step three, the ALJ referenced records that indicate that plaintiff sometimes had a limited memory and low average intelligence; her attention and concentration were intact; she was able to do counting, simple calculations, and serial 3s but not 7s; her recent and remote memory skills were intact; she was able to recall three objects immediately and after five minutes, and restate 5 digits forward and 3 digits backward; her attention and concentration were "sufficient for condition to interview, no gross impairment"; she had no limitation in sustaining concentration or sustaining an ordinary routine; she was alert and oriented; her insight was normal without delusions or hallucinations; and she had normal mood, affect, behavior, thought content. See T. at 306, 314, 382-83, 386, 401, 689, 693, 697, 702, 706, 744, 773, 848, 912. As to plaintiff's ability to remember, the undersigned finds no error because the ALJ discussed the records indicating that plaintiff struggled with her memory but that it was intact at other times. See Mary M. v. Comm'r of Soc. Sec., No. 8:20-CV-1594 (TWD), 2022 WL 823850, at *7 (N.D.N.Y. Mar. 17, 2022) (citing Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)) ("It is the province of the ALJ to resolve genuine conflicts in the record."). Plaintiff does not identify, and a searching review of the record does not reveal, records indicating that plaintiff had poor memory or concentration that the ALJ did not consider. See generally Dkt. No. 14.
This does not, however, negate the ALJ's errors regarding the supportability and consistency factors because the ALJ did not discuss the entirety of Ms. Geraghty and Malaney's supporting explanations, distinguish between their treatment records or those from other providers related to all of their opined limitations and not just some, or discuss the records that showed that plaintiff continued to struggle with irritability, maintaining relationships with others, and attendance at appointments. As such, the undersigned recommends granting plaintiff's motion, reversing the Commissioner's decision, and remanding for further proceedings.
2. Employability Assessments
Plaintiff contends that the ALJ erred in discounting the Employability Assessments because they were check-box forms and failed to "articulate how the supportability and consistency factors were considered in the determination or decision." Dkt. No. 14 at 16. The Commissioner argues that, as to supportability, the ALJ appropriately discounted the opinions as being check-box forms because "[n]one of the providers identified any support for their opinions[.]" Dkt. No. 17 at 18-19. As to consistency, the Commissioner identifies the ALJ's Listings analysis, wherein the ALJ discussed the consistency of the various limitations from the Employability Assessments with other evidence in the record. See id. at 20-22. From the Listing Analysis, the Commissioner asserts that "the ALJ expressly considered" the consistency factor. Id. at 22.
The Second Circuit recently "reassert[ed] and clarif[ied] that the nature of an ALJ's inquiry in disability factfinding turns on the substance of the medical opinion at issue—not its form—and ultimately whether there is reasonable evidence in the record that supports the conclusions drawn by the medical expert[.]" Colgan, 22 F.4th at 361 (citation omitted) (explaining that "Halloran did not then and does not now stand for the rule that the evidentiary weight of a treating physician's medical opinion can be discounted by an ALJ based on the naked fact that it was provided in a check-box form."). The supportability factor tasks an ALJ with comparing a medical opinion to the "relevant objective medical evidence and supporting explanations presented by a medical source[.]" 20 C.F.R. § 404.1520(c)(1), 416.920c(c)(1). As the Employability Assessments were check box forms, there were no supporting explanations. See T. at 669-78. The ALJ also stated, however, that the opinions were unsupported because they were "without attached support for the limitations." Id. at 19. There were no records directly attached to any of the Employability Assessments, but the ALJ is required to look to the entire record for supporting objective evidence from the authoring provider. See Colgan, 22 F.4th at 360, 362 (explaining that the provider's "check-box form opinion was supported by voluminous treatment notes gathered over the course of nearly three years of clinical treatment. In light of these circumstances, then, the ALJ's first reason for assigning little weight to [the] opinion[,]"—"that it was presented in a check box form[,]"—"was erroneous.").
There are four authors of the five Employability Assessments. See T. at 669-78. Plaintiff does not identify, and the undersigned could not otherwise find treatment records from Ms. Gurnsey in the record. See generally Dkt. No. 14. Similarly, there do not appear to be any treatment records from Ms. Platt. Her signature appears a few times on comprehensive treatment plans which indicate plaintiff's diagnoses and symptoms, but do not provide functional limitations or an update on her progress. See id. at 329, 340-44, 352-55. However, although not attached to the Employability Assessments, there are treatment notes from Ms. Myers and Belmontes.
Ms. Myers' records indicate that plaintiff's symptoms were managed by medication and therapy; she reported symptoms of blackouts, irritability, reactivity, paranoia, nightmares and flashbacks, but they were "significantly improved[ ]"; her psychosis was reported to be "under control"; she had no auditory or visual hallucinations; her thoughts were generally goal oriented, with a euthymic mood, and her affect, insight, judgment, and impulsivity were fair; her medication was beneficial to managing irritability, improving sleep, and decreasing psychotic symptoms; since being consistent with her medication, she "reported an increase in her mood stability and a decrease in hallucinations[ ]"; she was consistent in attending her appointments; she attended all of her appointments and called to cancel if she was unable to attend. T. at 307, 313-14, 325, 327, 348. In other records, plaintiff had not made progress towards attending appointments, and missed multiple appointments with medical providers; and she had "shown that many MD appts. had been missed and that there is a temporary hold on [plaintiff's] ability to schedule any further MD appointments until consultation with this therapist's supervisor." Id. at 925, 927.
Ms. Belmontes' treatment records indicate the plaintiff was "able to identify examples of her resilience, challenge the unhelpful messages from others and self validate, and engage in ego enhancing activities such as babysitting and with positive supports"; her mood was stable; she reported somewhat stable mood; she was "increasingly aware of ways in which others interact with her in a way that is discrepant to how she wants to be perceived and treated" and "worked to develop boundaries"; she had "not achieved symptoms of psychosis for over 6 months[,]" and her symptoms were "well managed with medication and coping skills[ ]"; she was attending appointments as scheduled and taking medication as prescribed; and she was working to maintain a stable mood and reported an ability to do the same. Id. at 954, 956, 958, 964, 966-67, 969.
When discussing the Employability Assessments at step four, the ALJ did not address these records and whether they supported Ms. Myers or Belmontes' opinions; thus, the ALJ committed procedural error. See Colgan, 22 F.4th at 361-62. The ALJ similarly procedurally erred in the consistency analysis of the Employability Assessments by summarily asserting that the Assessments "are also not consistent with the record as explained above." T. at 20; see Kathleen A., 2022 WL 673824, at *6 ("[A]n ALJ must specifically set forth how they considered the consistency of a medical opinion in the analysis of the medical opinion, not merely refer to the other medical evidence at some point in the decision.").
As explained in relation to Ms. Geraghty and Malaney's opinion, the ALJ's discussion of plaintiff's mental health treatment record and the various mental health opinions was in the Listings analysis. See T. at 14-20. At step three, the ALJ did not separately address each Employability Assessment by the author's name but explained that, "[i]n a series of opinions provided to Onondaga County Department of Social Services, multiple providers indicated from no limitations to serious limitations in this category[ ]"; "[t]he employment opinions for the county indicate a range of limitations from moderate to serious[ ]"; "[t]he medical statements regarding the claimant's ability in this category vary widely from no limitation, such as some of the reports to the county and the consultative examiner's opinion, to serious limitations, such as some of the reports to the county and the therapist's statement[ ]"; and "[t]he claimant's therapists and the reports to the county indicated from none to serious limitations in" adapting or managing oneself. Id. at 14-16. At step four, the ALJ stated the author of each opinion and what their respective opined limitations were. See id. at 19.
The ALJ did not, however, at either step three or four, provide a separate analysis for each of the authoring providers and explain whether their respective opinions were supported by treatment notes or were consistent with the record. See T. at 14-20; see Daniels v. Kijakazi, No. 21-CV-712 (GWG), 2022 WL 2919747, at *7 (S.D.N.Y. July 26, 2022) (citation omitted) ("The regulations mandate that the ALJ 'will explain' how the ALJ 'considered the supportability and consistency factors for a medical source's medical opinions' in the ALJ's decision. Thus, the decision must give such an explanation."). The ALJ did not, for example, acknowledge how plaintiff presented during treatment sessions with specific providers that would be supportive or unsupportive of their opinions. See Scott A. C., 2022 WL 2965585, at *3 (determining that "the substance of the regulation was not traversed and the ALJ's procedural error in omitting an express reference to supportability is harmless[ ]" because ""the ALJ expressly noted the 'difficulties' and 'symptoms' [the p]laintiff displayed during Dr. Londin's examination, as recorded in Dr. Londin's evaluation.").
As some authors of the Employability Assessments have treatment records with plaintiff and others do not, it is unclear to the undersigned how all of the Assessments are equally unsupported. See T. at 20; see Guzman v. Comm'r of Soc. Sec., No. 20-CV-07420 (JMF/SDA), 2022 WL 2325908, at *9 (S.D.N.Y. June 10, 2022), report and recommendation adopted, 2022 WL 2316643 (S.D.N.Y. June 28, 2022) (quoting Amber H. v. Saul, No. 20-CV-00490 (ATB), 2021 WL 2076219, at *6 (N.D.N.Y. May 24, 2021); Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01, at 5858 (Jan. 18, 2017)) ("An ALJ must provide sufficient explanation to allow a reviewing court to 'trace the path of [the] adjudicator's reasoning[.]' "). For example, Ms. Myers indicated in her Employability Assessment that plaintiff was severely limited in her ability to maintain a schedule, and her most recent treatment record with plaintiff reflected that plaintiff was missing appointments. See T. at 675, 926. As explained, the ALJ did not acknowledge the recent records indicating plaintiff's failure to attend appointments. See supra at 569-71; see also Loucks, 2022 WL 2189293, at *2 (noting that the plaintiff "repeatedly reported that she lacked motivation to complete basic daily living activities and that her depression and anxiety caused her to stay in bed and only get up as needed to use the bathroom or eat. She also consistently had significant struggles with disorganized thoughts, oral communication, controlling her anger, obsessive compulsions, and social anxiety."). The ALJ also did not discuss how all of plaintiff's treating providers determined that plaintiff was severely limited in the relevant categories. Cf. Joseph Y. v. Comm'r of Soc. Sec., No. 20-CV-319-LJV, 2022 WL 125821, at *5 (W.D.N.Y. Jan. 13, 2022) (explaining that the plaintiff's treating provider submitted five opinions and they "were consistent with one another—strong evidence of their validity.").
As the ALJ procedurally erred in considering the supportability and consistency factors in making the RFC determination at step four of the decision, and the undersigned cannot otherwise glean the ALJ's rationale in summarily finding all of the employability assessments to be unsupported and inconsistent with the record, the undersigned recommends granting plaintiff's motion, reversing the Commissioner's decision, and remanding for further proceedings.
V. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby:
RECOMMENDED, that the Commissioner's decision be REVERSED and REMANDED for further proceedings; and it is further
RECOMMENDED, that plaintiff's motion, Dkt. No. 14, be GRANTED; and it is further
RECOMMENDED, that defendant's motion, Dkt. No. 17, be DENIED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order on all parties in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 6(a), 6(e), 72.