Rivera v. Kijakazi

Full title: RAUL RIVERA, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social…

Court: United States District Court, S.D. New York

Date published: May 13, 2022

21 Civ. 1193 (CS)(JCM) (S.D.N.Y. May. 13, 2022)

Opinion

21 Civ. 1193 (CS)(JCM)

05-13-2022

RAUL RIVERA, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security,[1]Defendant.

Judith C. McCarthy, United States Magistrate Judge

REPORT AND RECOMMENDATION

Judith C. McCarthy, United States Magistrate Judge

To the Honorable Cathy Seibel, United States District Judge

Plaintiff Raul Rivera (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (“Commissioner” or “Defendant”), which denied Plaintiff's application for disability insurance benefits. (Docket Nos. 1, 10). Presently before the 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), and (2) the Commissioner's cross-motion for judgment on the pleadings, (Docket No. 24). For the reasons set forth herein, the Court respectfully recommends denying Plaintiff's motion and granting the Commissioner's cross-motion.

I. BACKGROUND

Plaintiff applied for Title II Social Security Disability Insurance Benefits (“DIB”) and Title XVI Supplemental Security Income (“SSI”) under the Social Security Act (“Act”) on June 29, 2017,² alleging a disability onset date of October 15, 2014.³ (R.⁴ 131,⁵ 416). Plaintiff's application was initially denied on November 8, 2017, (R. 160-67), after which Plaintiff requested a hearing, (R. 168-69). Hearings were held on May 20, 2019 and March 9, 2020. (R. 42, 75). Administrative Law Judge (“ALJ”) David Suna (“ALJ Suna”) issued a decision on April 29, 2020, denying Plaintiff's claim. (R. 10-33). Plaintiff requested review by the Appeals Council, which declined on December 15, 2020, (R. 1-6), making the ALJ's decision ripe for review.

2 The ALJ found Plaintiff's DIB application date was June 29, 2017 and his SSI application date was September 12, 2017. (R. 10). Plaintiff disputes the ALJ's selected dates, asserting the correct date for both applications is July 27, 2017. (Docket No. 21 at 5, n.1). Upon review of the record, the Court finds four different dates associated with Plaintiff's DIB application-June 29, 2017 (R. 131, 612), July 3, 2017 (R. 414), July 25, 2017 (id.), and July 27, 2017 (R. 130)-and two dates associated with his SSI application-July 27, 2017 (R. 145, 129), and September 12, 2017 (R. 416). The Court does not need to resolve this dispute since it recommends granting the Commissioner's cross-motion.

3 The alleged onset date (AOD) “is always the date the claimant alleges he or she became unable to work because of his or her medical condition, whether or not that date appears to be appropriate.” POMS DI § 25501.210. Despite listing October 15, 2014 as his alleged onset date in his application materials, (R. 132, 146, 416, 461, 467, 626), Plaintiff attempts to change his AOD for the first time before this Court, (Docket No. 21 at 5, n.3). It is too late, however, to change the alleged onset date. The SSA “will allow the claimant to amend his or her AOD any time up to the date of the DDS determination.” POMS DI § 25501.230. The Court also notes that Plaintiff attempts to change the AOD to reflect the rules regarding “the earliest date upon which benefits can be conferred.” (Docket No. 21 at 5, n.3). This is unnecessary. If Plaintiff is found disabled, the ALJ determines the date that on which Plaintiff first met “the medical, vocational, and other entitled or eligibility requirements for disability benefits,” also known as the established onset date (EOD). POMS DI § 25501.210. Plaintiff's AOD is a “starting point” for consideration but the ALJ is not obligated to accept it. Id. The Court therefore declines to adopt Plaintiff's amended AOD.

4 Refers to the certified administrative record of proceedings (“Record”) related to Plaintiff's application for social security benefits. (Docket No. 15).

5 All page number citations to the Record refer to the page number assigned by the Social Security Administration.

A. Non-Medical Evidence

Born on June 10, 1966, (R. 80), Plaintiff was only six years old when he witnessed his family's murder in a home invasion, (R. 740, 766, 833, 1231). After entering the foster care system, he was molested and raped. (R. 740, 1231). Plaintiff attended “special education classes,” (R. 734, 741, 832), until he dropped out of school after seventh grade, (R. 83-84, 741). He reports continued difficulty in reading and writing, (R. 728, 737). Plaintiff also began abusing tobacco, alcohol, marijuana, and heroin when he was fifteen years old, (R. 838, 1231), which lead to several arrests, (R. 84, 833), and many years in prison, where he was “sexually abused by other inmates,” (R. 70, 1018). Since then, Plaintiff married, divorced, and had children. (R. 38, 1340).

1. Plaintiff's Work History

Starting 2010, Plaintiff worked at Mercury Paint Corp. as a “general helper,” “pouring the paint in a bucket[,] passing it down,” and “carry[ing] [it] to [a] machine.” (R. 462, 472). This required him to stand, sit, and frequently lift items under ten pounds. (R. 472). In 2014, Plaintiff also worked as a “helper-cutter” at Bracci Lumber & Hardware, Inc., which required him to stand, reach, and frequently lift ten pounds. (R. 462, 470). It is not clear whether Plaintiff's work at Mercury continued concurrently with his time at Bracci, but Plaintiff attested his last day of employment was October 15, 2014. (R. 461).

Plaintiff provides two reasons for ending employment: (1) the hospital informed him he could not return to work because of injuries sustained after he was “hit by a forklift” at work, (R. 135, 461); and (2) his boss “couldn't have no more” of Plaintiff's “time outs”⁶ at work (R. 86). After 2014, Plaintiff was “on welfare,” (R. 89, 1142), working “part time training children boxing,” (R. 1142, 1500), and waiting for disability benefits, (R. 98).

6 The Record indicates that when Plaintiff said “time out,” he was referring to “black[ing] out.” (R. 1064).

2. Plaintiff's Disability Application

Plaintiff's claim for disability was based on the following alleged impairments: back pain, substance abuse and dependence, hyperlipidemia, bipolar disorder, posttraumatic stress disorder (“PSTD”), depression and anxiety, left knee pain, and left shoulder pain. (R. 79-80, 460).

There are two function reports in the Record. Plaintiff completed a function report on August 20, 2017, (R. 519-26), and his case manager completed one on October 17, 2017, (R. 490-97). His case manager met with Plaintiff every 45 days for a couple of hours to obtain updated treating information, medications, and documentation. (R. 490). Plaintiff reported that he enjoyed exercising, working out, reading, watching TV, socializing daily by phone, and shopping weekly. (R. 494, 520, 522, 524). Although “a friend” reminded Plaintiff to shower and would sometimes cook for him, (R. 491-92), Plaintiff was able to care for all his personal needs, (R. 521), and prepare his own meals of hot dogs, eggs, and French fries, (R. 492, 523). Although Plaintiff did not have any problems getting along with others, he did not like “being around crowds” because of his anxiety, (R. 519, 524), and he only went outside to doctor's appointments, (R. 524). Plaintiff said his back pain impacted his ability to lift and reach; his knee and ankle pain impacted his ability to sit, stand, and kneel; and he had to take time to stop and rest when walking, climbing stairs, and using his hands. (R. 495, 519). He reported that he used a cane prescribed by his doctor, and that he needed to rest for ten to thirty minutes after ten minutes of walking. (R. 495, 525). His case manager added that Plaintiff also “need[ed] to be in a low stress environment due to his anxiety,” and “need[ed] additional training time.” (R. 495). Plaintiff reported he had problems paying attention and finishing what he started. (R. 525). Although Plaintiff attested to an inability to follow written instructions, his case manager noted that he could follow written instructions “well once you explain[ed] it to him.” (R. 495, 526). Finally, the case manager described Plaintiff's employment history as limited to “low skilled, inconsistent” jobs “a few short weeks at a time,” and stressed that Plaintiff was unable to “perform even sedentary employment.” (R. 491).

B. Medical Evidence

Plaintiff's alleged onset date (AOD) is October 15, 2014, and the ALJ determined that Plaintiff's Date Last Insured (DLI) was December 31, 2019 (“Eligibility Period”). (R. 13). The Record contains hospital and medical records from August 2014 to February 2020, extending to both before and after the Eligibility Period. Relevant parts of the Record are summarized below.

1. Treatment Related to Mental Impairments

Plaintiff sought mental health treatment in March 2016 at Essen Medical Associates, P.C. (“Essen”) with Dr. Raphael Lopez Sanchez (“Dr. Lopez”), after Plaintiff was “feeling sad” for three months and experiencing anhedonia, low energy, poor concentration, restlessness, insomnia, and irritability. (R. 1018). He denied suicidal or homicidal ideas but had a history of suicidal attempts, reportedly resulting in admissions to a psychiatric ward seven years earlier. (Id.). His psychiatric history included prior addictions and treatments-i.e., heroin and methadone-as well as a history of sexual abuse and depression. (Id.). Evaluation revealed Plaintiff was in good physical condition-i.e., normal strength and muscle tone, normal gait and station-and good mental function-i.e., normal speech, linear and coherent thought processes, normal associations, normal thought content, fair judgment and insight, orientation to time, person, place and circumstances, no memory problems, and of average intelligence.⁷ (R. 1020). Dr. Lopez assessed Plaintiff with Major Depressive Disorder and prescribed Seroquel and mirtazapine. (Id.). Dr. Lopez increased the Seroquel prescription and referred Plaintiff to a psychologist on April 26, 2016 for depression and anxiety. (R. 1015, 1017).

7 These examination findings remained consistent throughout 2016. (R. 1003-04,1006-08, 1009, 1012, 1015, 1020).

Plaintiff was prescribed risperidone for PTSD in May 2016, (R. 1014), after reporting symptoms of anxiety, isolation, agoraphobia, recalling “what happened to him,” and being “extremely paranoid,” (R. 1012). On July 5, 2016, Plaintiff reported an “agitation episode” triggered by July 4th fireworks, but also admitted he had run out of medication two days prior. (R. 1009). When compliant with medication, Plaintiff reported good sleep and no side effects, so Dr. Lopez restarted Plaintiff's medication and formally added PTSD to his assessment. (R. 1009, 1011).

On August 9, 2016, Plaintiff still experienced anxiety, frustration, restlessness, sadness, and irritability-e.g., he “snapp[ed] and lashe[d]” out when somebody misplaced his belt-but reported having a better mood generally and was able to “go back to baseline mood.” (R. 1006). He denied suicidal ideations and panic attacks, but reported that his sleep had become fragmented again because he was “getting used to the Seroquel.” (Id.). Dr. Lopez increased Plaintiff's medication dosages. (R. 1006, 1008). On September 6, 2016, Plaintiff reported no sadness but experienced nightmares every day that were waking him, leaving him “hyperarousable” and “avoidant.” (R. 1003). Dr. Lopez increased Plaintiff's dosage of gabapentin and prescribed prazosin. (R. 1003, 1005).

Sometime after September 6, 2016, Plaintiff was arrested and incarcerated. By February 2017, Plaintiff was under the supervision of the Bronx Mental Health Court, after being ordered by the court to complete an 18- to 24-month mental health and substance abuse program. (R. 876). As part of the program, Plaintiff was required to “comply with all treatment recommendations, including intensive outpatient groups” that met five times per week. (Id.). Plaintiff was referred to St. Barnabas Hospital (“St. Barnabas”) for treatment for his opiate use disorder. (R. 885). He enrolled in St. Barnabas's out-patient detox program in March 2017, where he followed his individualized treatment plan, (see, e.g., R. 760-64), and attended group therapy, (R. 845-60). By the time he was discharged on January 9, 2018, Plaintiff's opioid use disorder was in remission, and he had learned to “identify triggers that cause relapse” and “develop[ed] coping mechanisms.” (R. 885).

On March 20, 2017, after release from jail, Plaintiff returned to Dr. Lopez. (R. 1000). Plaintiff did not appear to have received any treatment while in jail, and he continued to suffer from his mood disorder, PTSD, and poor sleep. (Id.). Physical and mental examination revealed no change in his health, pain, and limitations from before jail. (Id.). Dr. Lopez restarted treatment and medication, and referred Plaintiff to Dr. Eli Leiter for psychotherapy to address his depression and PTSD. (R. 1000, 1003). On April 5, 2017, Plaintiff met with Dr. Leiter, who noted that Plaintiff “clearly need[ed] medication and therapy.” (R. 999).

On April 17, 2017, Dr. Lopez noted that Plaintiff appeared to be “coping fine after jail,” feeling okay, “not sad but anxious,” and was attending his court-mandated program every day. (R. 996). Plaintiff reported sleeping only two or three hours per night, but he had no panic attacks and his anxiety was triggered by crowds. (Id.). Dr. Lopez increased Plaintiff's dose of mirtazapine and risperidone, and instructed Plaintiff to return in six weeks. (R. 996, 998).

From May to December 2017, Plaintiff met with Dr. Leiter almost weekly, sharing his traumatic experiences and feelings, which included anxiety, flashbacks, and “zoning out.” (R. 972-88, 992-95). They developed a strong therapeutic relationship, (R. 986), and used therapy sessions to tackle specific issues Plaintiff was experiencing, including using “guided imagery” to cope with flashbacks, (R. 978, 988), and using exposure therapy to address Plaintiff's fears of leaving the house, (R. 980).

On May 30, 2017, Plaintiff appeared at his follow-up appointment with Dr. Lopez with “very slurred” speech. (R. 989). He stated that he felt very anxious and had flashbacks; Plaintiff asked Dr. Lopez “to give him what he was receiving in jail,” which he claimed were Xanax and zolpidem. (Id.). When asked, Plaintiff denied the use of drugs, but Dr. Lopez noted this was “not reliable.” (Id.). Because Plaintiff did not have any records from jail “to justify the use of those medications,” Dr. Lopez continued Plaintiff's existing medication. (R. 989, 991). Dr. Lopez noted that Plaintiff showed “minimal improvement” and “require[d] [a] higher level of care.” (R. 989).

On July 3, 2017, Dr. Leiter changed Plaintiff's assessment to include “[p]rolonged” PTSD, (R. 987), and treatment records noted improved symptoms from July through October. (R. 976-77, 979, 983-85). However, from November 2017 until their last session in May 2018, Plaintiff was fixated on a “gap in him, a hole he cannot fill” left by the murder of his family and the ensuing feelings of emptiness. (R. 972-75). On January 22, 2018, after missing several sessions, Plaintiff returned and reported feeling stressed. (R. 971). However, he had a hard time talking about it because of acute physical pain and aches resulting from a recent fall and bout with pneumonia. (Id.). At their last session on May 30, 2018, Dr. Leiter noted that Plaintiff appeared “somewhat more stable but still [had] anger issues.” (R. 970).

Starting in August 2018, Plaintiff switched to All Med Medical Group (“All Med”) as his psychiatric provider. (R. 921⁸). On August 22, 2018, NP Younjea Lee (“NP Lee”) took Plaintiff's extensive medical and psychiatric history and evaluated him. (Id.). He had appropriate personal hygiene and clothing, cooperative behavior, normal speech, euthymic mood, organized and logical thought processes, no acute distress, no suicidal ideations or hallucinations, good insight and judgment, and grossly intact cognition. (Id.). Psychosocially, despite living with his partner at her apartment, Plaintiff identified “housing issues” as a stressor. (Id.). NP Lee diagnosed Plaintiff with bipolar disorder, PTSD, and a sleep disorder. (R. 922). Plaintiff reported that he took mirtazapine, which helped him sleep; Seroquel had side effects he did not like (drowsiness, lethargy, weight gain); and hydroxyzine helped with anxiety. (R. 921). He noted however, that he always ran out of hydroxyzine early because he took it whenever he felt anxious. (Id.). NP Lee decreased Plaintiff's prescription of hydroxyzine by half, increased the dosage of mirtazapine, and replaced Seroquel with buspirone. (R. 922). NP Lee also arranged for Plaintiff to meet with Dr. Edward Fruitman, M.D. (“Dr. Fruitman”), on September 4, 2018. (Id.). Dr. Fruitman noted a similar medical history as NP Lee, including complaints of “restlessness, anxiety, panic attacks, persecutory [auditory hallucinations], insomnia, flashbacks, passive [suicidal ideation],” and dissociation or depersonalization, and confirmed NP Lee's diagnoses. (R. 920). He discontinued hydroxyzine, continued mirtazapine, increased buspirone, and started prazosin and Thorazine. (Id.).

8 The Record contains duplicate versions of multiple treatment notes and lab findings. (See, e.g., R. 706, 776; 921, 932). For ease of reference, the Court cites only one version of the duplicative notes.

On October 3, 2018, Plaintiff returned to NP Lee, seeking Xanax for his anxiety. (R. 930). Although his mental state had not changed from September, Plaintiff reported that he was anxious and experienced depression, flashbacks, hearing voices, difficulty sleeping, and poor appetite with shaking hands. (Id.). NP Lee advised Plaintiff to continue all medication as prescribed and scheduled Plaintiff to meet with Dr. Fruitman to discuss starting Xanax. (Id.). There is no indication in the Record that Dr. Fruitman prescribed Xanax.

On December 12, 2018, Plaintiff arrived at All Med “for [his] psych visit and medication refill.” (R. 916). He explained, “I have no issue at this time. My medications are working well.” (Id.). Psychiatric Mental Health Nurse Practitioner Purificacion Cristobal, Ph.D. (“Dr. Cristobal”) found no issues upon examination, and agreed his medications were working well. (Id.). Dr. Cristobal continued Plaintiff's medications and ordered him to follow up in a month for psychiatric monitoring. (Id.). Plaintiff's prescriptions were refilled on January 9, 2019, (R. 915), and February 8, 2019, (R. 914).

According to an All Med Psychosocial Intake Form dated February 9, 2019, Plaintiff stopped seeing a therapist two months prior, but continued taking psychiatric medication. (R. 1055). He reported poor quality sleep, depressed mood, dramatic mood swings, rapid speech, extreme anxiety, panic attacks, phobias, sleep disturbances, hallucinations, unexplained losses of time, unexplained memory lapses, frequent body complaints, repetitive obsessive thoughts, and homicidal thoughts. (R. 1056-57). He also said that he exercised for two to three hours every day, and restricted his food intake and smoked tobacco. (Id.). He noted a history of seven suicide attempts, and expressed suicidal ideation, but was without plan, intent, or means. (R. 1057, 1059). Plaintiff complained of his partner's drug use and family stress. (R. 1057). Plaintiff appeared irritable at intake, but was otherwise fully oriented, calm, cooperative, with intact memory and fair judgment. (R. 1059).

In February and March 2019, Plaintiff met with his social worker three times. (R. 1054, 1064, 1065). Plaintiff consistently reported thoughts of suicide, and had a “psychic break” in March that resulted in a brief hospitalization. (Id.). His triggers centered around activities that reminded him of his father's death, including watching Blue Bloods and seeing positive fatherchild relationships, (R. 1054, 1065), and his girlfriend's substance use, (R. 1064), which he found disturbing, (R. 1054). He stated that “he used to do that, but he decided that he no longer engage[d] in such activities.” (Id.). In March, when he was triggered by her substance use, he suffered a “time out,” during which he “curled up in a corner, scared and screaming,” but afterwards “had no recollection of what happened.” (R. 1064).

On May 22, 2019, Plaintiff appeared for a follow-up appointment with Dr. Cristobal at the Kamehameha Health and Wellness Nonprofit Corporation. (R. 1022). Upon evaluation, Dr. Cristobal determined Plaintiff was “not at baseline,” and diagnosed him with Major Depressive Disorder, Generalized Anxiety Disorder, Insomnia, and Schizophrenia Disorder, and was scored at ¶ 40 out of 100 on the Global Assessment Functioning scale. (R. 1022-23). Dr. Cristobal also found that Plaintiff was alert, cooperative, of appropriate affect, without aggression or self-injurious behavior, but he appeared to experience psychosis or affective instability, and showed poor insight, judgment, and impulse control. (R. 1022). Plaintiff was prescribed alprazolam, zolpidem, chlorpromazine, mirtazapine, buspirone, and haloperidol and advised to “continue current level of care.” (R. 1022-23).

On August 28, 2019, Plaintiff returned to All Med to refill his medications because his provider was “no longer accepting his insurance.” (R. 1043). Recorded as “loud,” “aggressive,” “uncooperative,” and “with unsteady gait,” Plaintiff was “preoccupied with Xanax.” (Id.). He denied suicidal and homicidal ideations, auditory or visual hallucinations, and medication side effects. (Id.). Nurse Practitioner Kevin Obi provided “empathic listening and validation of feelings,” and discontinued Plaintiff's prescription to Xanax and Thorazine, starting him instead on Zoloft for his anxiety and depression, and instructing Plaintiff to continue with his other medications as ordered. (R. 1044). On September 5, 2019, however, Plaintiff was re-prescribed Xanax by a different medical professional, after reporting poor sleeping patterns and auditory hallucinations; presenting fidgety behavior, poor judgment and insight; and not “reacting to internal or external stimuli.” (R. 1042).

In August and September 2019, Plaintiff met with Dr. Jeffrey Gardere, Ph.D. (“Dr. Gardere”) and discussed his relationship with his girlfriend. (R. 1044, R. 1040). In August, Plaintiff wanted to break up with his girlfriend because of her drug use. (R. 1044). In September, Plaintiff reported that he had an “exit strategy:” he would make a clean break, after his “lawyer tells him that he has received his disability benefits.” (R. 1040). On September 14, 2019, Plaintiff met with Dr. Gardere after having become “very upset” with his previous psychiatrist, who had “wanted to discontinue some of his prescription medication.” (R. 1041). During his 30-minute appointment, Plaintiff continued to express his displeasure with the previous psychiatrist and said he had “a pending thought about hurting himself.” (Id.). However, he did not “succumb to those feelings,” and “[sought] assistance from another physician.” (Id.).

Plaintiff met with Dr. Richard Beira, M.D. (“Dr. Beira”) at All Med on September 26, 2019 and reported compliance with prescribed medications, and no alcohol or illicit drug use. (R. 1039). His countenance was similar to that of his September 14 visit, but he exhibited “flight of ideas” thought process, and reported sleeping only four to five hours per night and hearing voices: “the house talks with me.” (Id.). Plaintiff was referred for psychotherapy and prescribed alprazolam, buspirone, chlorpromazine, haloperidol, and mirtazapine. (Id.).

On November 5, 2019, while meeting with Dr. Beira, Plaintiff had an “episode of screaming,” holding his head with both hands and screaming “Don't rape me! Don't rape me!” (R. 1168). After which, Plaintiff asked what happened. (Id.). He reported suicidal thoughts and that he didn't feel he would “make it to [the] hospital.” (Id.). Plaintiff was deemed a “danger to self/others,” and the Emergency Medical Service (EMS) took him by force to the psychiatric emergency department (“ED”) at Lincoln Hospital (“Lincoln”). (R. 1168-69, 1081). While at Lincoln, Plaintiff continued to present with erratic and paranoid behavior, having another episode in which he suddenly started yelling “Stop, these people are trying to rape me.” (R. 1656). Again, Plaintiff did not remember what happened afterwards. (Id.). Plaintiff remained aggressive, agitated, almost flipping over the stretcher he was on, yelling, and screaming that the hospital staff were trying to hurt him, so Plaintiff was sedated as a safety precaution. (R. 1657). Plaintiff continued to express a belief that “people were out to get him and that he was being raped by his psych doctors.” (R. 1665). He said he heard “voices telling [him that they were] going to rape [him].” (R. 1686). Physicians were “unclear” on whether Plaintiff's symptoms were “substance-induced or the result of decompensated psychotic illness.” (R. 1661). When asked about his drug use, Plaintiff denied any recent drug use, saying he was sober since 1988, but the physician noted that the “[c]hart review and PSYCKES [Psychiatric Services and Clinical Knowledge Enhancement System] contradict[ed] this,” showing two in-patient admissions for substance abuse in 2018 at BronxCare. (R. 1662).

The next day, Plaintiff was discharged with a diagnosis of opioid use disorder, (R. 1666, 1680). Although Plaintiff was also diagnosed with psychosis, physicians noted that he did “not appear psychotic (is not internally preoccupied, disheveled, disorganized),” and he “display[ed] a linear thought process and . . . no other [symptom] of psychosis.” (R. 1682). His “behavior prior to arrival was likely the result of psychoactive substance abuse and not decompensated psychiatric illness as he . . . rapidly reconstituted [back to] baseline.” (Id.). Upon discharge, his only request was “assistance with the shelter placement, as he was not happy with his current residence,” (id.), and “want[ed] to get a single room in a shelter.” (R. 1686).

Plaintiff met Dr. Gardere a few days later on November 11, 2019, and was instructed to continue seeing a mental health therapist for mental health counseling. (R. 1165).

On November 27, 2019, Plaintiff went to All Med reporting that he was “not feeling well.” (R. 1163). He had recently completed a detoxification program and was seeking a rehabilitation treatment program. (R. 1105). Crying, Plaintiff reported active auditory hallucinations telling him to hurt himself and that his parents would be waiting for him, and he asked to be sent to BronxCare's Comprehensive Psychiatric Emergency Program (“CPEP”). (R. 1163). At CPEP,⁹ Plaintiff appeared disorganized, having conversations with himself, and began shaking and struggling with the NYPD, ending up on the floor on his back kicking and stating, “[He] is going to kill me.” (R. 1105). Plaintiff reported “intermittent or fleeting suicidal thoughts,” but “rarely” had morbid thoughts regarding “reunion fantasies” or a “preoccupation with death.” (R. 1120). The ER physician found Plaintiff was well-oriented, (R. 1123, 1126), but also irritable, boisterous, physically threatening, (R. 1120), and exhibited “bizarre ideation,” (R. 1123). Plaintiff appeared to be unwilling or unable to cooperate with treatment, (id.), and was non-compliant with his medication. (R. 1126). He refused to take his medication that afternoon without any rationale, (id.), despite knowing that when he missed his medication, he started to hear voices, (R. 1132). He was advised on the importance of taking his medication exactly as directed, (R. 1128), and was discharged when his mental status examinations revealed normal results. (R. 1132-33).

9 It is unclear how Plaintiff appeared at BronxCare. Although All Med treatment notes suggest that EMS was called at Plaintiff's request to be taken to CPEP, (R. 1164), BronxCare treatment notes suggest that Plaintiff was witnessed tying bag handles/straps around his neck at the urgent care clinic, was stopped, and then brought to CPEP by NYPD in a very agitated state, (R. 1105). Another version of the story is that Plaintiff was brought in by the EMS/police from an exercise/health club, where he had started to hear voices, tried to hide from bullets he believed were being fired at him, and was crying aloud. (R. 1109, 1114, 1126).

On December 9, 2019, because Plaintiff suffered from chronic depression with poor results with pharmacotherapy and psychotherapy, Dr. Beira cleared Plaintiff for NeuroStar treatment, which could “eliminate or assist in Plaintiff's medication management and alleviation of current depressive episode.” (R. 1161-62).

From December 27, 2019 to January 2, 2020, Plaintiff was hospitalized at North Central Bronx Hospital, after EMS brought him from his psychiatrist's office, where he presented with aggressive and disorganized behavior. (R. 1142, 1159). Plaintiff typically decompensated rapidly if he missed his medications, (R. 1230), and he confirmed he was noncompliant the day before, (R. 1142, 1250). At the ED, Plaintiff exhibited multiple episodes of agitation, attacking staff and accusing them of raping him, and subsequently apologizing while crying. (R. 1142, 1216). He was sedated. (R. 1216). He reported racing thoughts, mood lability, elation, increased energy, intermittent PTSD, lashing out at people, and nightmares about being raped, and was diagnosed with PTSD, schizoaffective disorder and asthma. (Id.). Plaintiff was discharged on January 2, 2020, alert, cooperative, fully oriented, of average intellectual functioning, without thought disorder, and with good judgment, normal insight, and good impulse control. (R. 1142, 1145).

The Record included two more hospitalizations that occurred after the eligibility period: from January 23-30, 2020, (R. 1334-43), and February 12-24, 2020, (1469-1500). Both times, Plaintiff expressed suicidal ideations, being a danger to himself and others, and he complained of auditory hallucinations. (R. 1334-35, 1339, 1469, 1472, 1480). Both times, Plaintiff's erratic behavior was preceded by a week of noncompliance with medication. (R. 1341, 1469). Restarting medications resulted in good effect, and Plaintiff was discharged.¹⁰ (R. 1340, 1480). In February, the emergency room psychologist “suspected that [Plaintiff] had malingered in the PED with hopes that the hospital would provide him with new housing as well, perhaps, to bolster his application for SSI.” (R. 1501).

10 At his January discharge interview, Plaintiff exhibited paranoia, and “while reporting his history of childhood trauma,” stated that he couldn't be sure that the doctor “did not have anything against him.” (R. 1343). Nevertheless, he denied suicidal ideation, hallucinations, nightmares, flashbacks, panic attacks, and was no longer considered a danger to himself or others, so Plaintiff was discharged. (Id.).

2. Treatment Related to Physical Impairments

a. Asthma

The Record contains evidence of Plaintiff's self-reported history of asthma from before the eligibility period, (R. 789), through the eligibility period, (see, e.g., R. 832, 1012, 1250-520, to after the DLI, (see, e.g., R. 1142, 1335-37, 1543). During the eligibility period, his asthma symptoms were often described as “controlled” and “stable” (see, e.g., R. 964, 1206, 1221), and Plaintiff used his Ventolin inhaler as needed, (see, e.g., R. 964, 1175). Examinations consistently revealed “clear [lungs], no rales, no rhonchi, no wheezes,” “normal AP diameter,” and “good [diaphragmatic] excursion.” (R. 636, 670, 839, 949, 1159). X-ray imaging confirmed Plaintiff's “lung fields [were] clear.” (R. 905). Plaintiff occasionally complained of chest tightness or pain, (R. 640, 648, 1099), but EKG results were “within normal limits,” (R. 787, 905). In one instance, the chest tightness was “bronchitis.” (R. 641).

As a result of Plaintiff's continued tobacco use, (R. 644, 688), pulmonary function tests (PFTs) showed on March 11, 2016 “[m]ild airway obstruction [and] [l]ow vital capacity, perhaps due to restriction of lung volumes,” (R. 719), and later on February 23, 2017, normal spirometry and no improvement in the post-bronchodilator test, (R. 798).¹¹ Plaintiff received “smoking cessation counseling.” (R. 671, 1152, 1167).

11 Despite multiple orders on March 3, 2016, March 11, 2016, February 23, 2017, September 15, 2017, and November 28, 2017, Plaintiff only took the PFT twice.

b. Back, Knee, and Ankle Pain

Plaintiff reportedly began experiencing pain in his lower extremities after suffering a workplace accident in 2014. See Section I.A.1. On January 7, 2015, Plaintiff visited Tremont Quality Medical Care, P.C. (“Tremont”) with right knee pain. (R. 687). Certified Physician Assistant Garry LaQuinte (“PA LaQuinte”) examined Plaintiff and found full range of motion despite a mild edema in his right knee. (Id.). PA LaQuinte continued Plaintiff's prior Naprosyn and Voltaren prescriptions; added Zanaflex; referred Plaintiff to physical therapy (PT); and advised Plaintiff to practice the “RICE [rest, ice, compression, and elevation] method” to address the edema and alleviate pain. (R. 688). To rule out peripheral vascular disease (PVD) and deep vein thrombosis (DBT) as causes for his edema, Plaintiff underwent blood work and doppler ultrasound testing on January 7, 2015, (R. 688, 778-79), and a magnetic resonance imaging test (“MRI”) of his right knee on January 8, 2015, (R. 706). There were no unusual results from the blood work, and the ultrasound testing ruled out PVD and DBT. (R. 688, 778-79). The MRI found “knee joint effusion,” degenerative change, and tears in his knee's meniscus. (R. 706). All other ligaments remained intact. (Id.).

By January 14, 2015, Plaintiff no longer had edema, and Plaintiff maintained full range of motion despite pain. (R. 685). Plaintiff was prescribed Percocet and referred to orthopedics and outside pain management. (R. 686). Plaintiff was advised to continue PT. (Id.).

On January 21, 2015, Plaintiff returned to Tremont, complaining of chronic back pain that radiated down to his left knee, rating the pain a 10 out of 10. (R. 683). Since his last visit, Plaintiff had started PT and received ED care. (Id.). Dr. Gouping Zhou, M.D. (“Dr. Zhou”) examined Plaintiff and found his left leg had “decrease[d]” sensation to light touch and pin prick, his reflexes were weaker than average, and there were signs of lumbar tenderness. (Id.). Dr. Zhou assessed Plaintiff with lumbar strain, sciatica, lumbar pain, and left knee derangement. (R. 684). Dr. Zhou referred Plaintiff to an orthopedist and ordered Plaintiff to have NCV (Nerve Conduction Velocity) and EMG (Electromyography) tests of his legs to evaluate for radiculopathy.¹² (Id.). Plaintiff brought the Percocet prescription PA LaQuinte had signed and claimed that the pharmacy did not fill the prescription. (R. 683). After conducting an I-STOP (Internet System for Tracking Over-Prescribing) review with urine toxicology test, (R. 684, 780), Dr. Zhou prescribed Percocet and diclofenac, (R. 684).

12 Results from this test do not appear to be included in the Record.

On February 18, 2015, Plaintiff saw both Dr. Zhou and PA LaQuinte. After discussing other symptoms with Dr. Zhou, (R. 681), he complained of right knee pain to PA LaQuinte, (R. 679). Examination revealed good physical health, no edema in his right knee, and full range of motion in his right knee, albeit with pain. (Id.). PA LaQuinte advised Plaintiff to continue PT and to discuss with Dr. Zhou about adding his right knee to his pain management assessment. (R 680).

On April 1, 2015, Plaintiff returned to Tremont complaining of pain in his right knee and lower back that was sharp and constant (R. 677). He was using braces for his back and knee. (Id.). Upon examination of the knee, Dr. Zhou found decreased range of motion due to pain, but also found sensory abilities grossly intact and symmetrical deep tendon reflex. (Id.). Upon examination of the back, Dr. Zhou found spinal tenderness from L1-L4. (Id.). Dr. Zhou assessed back pain, lumbar strain, herniated nucleus pulposus, and left knee derangement. (Id.). He ordered a lumbar spine MRI, prescribed baclofen, and advised Plaintiff to return in two months. (R. 677-78). Dr. Zhou again referred Plaintiff to an orthopedist and to pain management. (R. 677).

On May 28 and 30, 2015, Plaintiff wore a brace and complained of continued pain in his right knee and back. (R. 674, 675). Family Nurse Practitioner Odiya Kone (“NP Kone”) examined Plaintiff and found he only suffered from a limited range of motion in his knee. (Id.). Plaintiff was diagnosed with inter alia “pain in lower limb,” “other peripheral vascular disease,” and “other idiopathic peripheral autonomic neuropathy.” (R. 674). NP Kone prescribed naproxen and Voltaren for the knee pain, and a pain management referral. (Id.).

Plaintiff did not return to Tremont until the next year, on March 3, 2016, when he complained of bilateral leg numbness. (R. 670). PA Shari Potter (“PA Potter”) found Plaintiff in good general health with limited range of motion in his knee, and ordered several exams, including a sudomotor scan to rule out autonomic dysfunction for Plaintiff's leg numbness. (R. 670-71). On March 11, 2016, Dr. Dmitry Zhukovski, D.O. (“Dr. Zhukovski”) reviewed Plaintiff's lab results with him; assessed abdominal pain, Vitamin D deficiency, hyperlipidemia, tobacco use disorder, shortness of breath; and prescribed ergocalciferol and simvastatin. (R. 668).

On March 18, 2016, Plaintiff suffered pain in his right ankle, right and left knees, and left big toe. (R. 665). Three years ago, he was shot in his ankle, but the pain began only the previous year, and the left big toe pain started “after a frozen chicken fell on his toe.” (Id.). Examination revealed “tender” toe and ankle with limited range of motion and slightly more diminished pulse than normal (“DP 2+”) on both sides. (R. 665-66). Dr. Zhukovski diagnosed Plaintiff with ankle pain, knee pain, nicotine dependence, pain in limb, and swollen legs. (R. 666). The doctor continued him on Naprosyn for his pain; ordered X-rays; and referred Plaintiff to St. Barnabas for an orthopedic appointment to evaluate and treat his bilateral knee pain. (R. 666, 803).

Plaintiff sought prescription refills on April 5, 2016, appearing at the clinic wearing his brace and complaining of numbness in both legs. (R. 662-63). Plaintiff was ordered to continue his current care plan and his gabapentin prescription was renewed. (R. 663).

Plaintiff continued to experience bilateral knee pain on May 2, 2016, (R. 661); May 17, 2016, (R. 658); February 23, 2017 (R. 656); and March 3, 2017, (R. 747). However, on March 20, 2017, in treatment progress notes with Dr. Lopez, his mental health physician, Plaintiff reported no joint pain, joint swelling, or muscle spasms and an evaluation revealed normal gait and station and normal strength and muscular tone. (R. 1000-01).

On July 10, 2017, Plaintiff presented at Tremont with lower back pain that radiated to his right groin and lower extremities, and requested medication for the pain. (R. 649). Nurse Practitioner Justine Angol (“NP Angol”) found mild tenderness in Plaintiff's lumbar/sacral region and prescribed naproxen and gabapentin for the pain. (R. 650).

On September 25, 2017, Plaintiff had X-rays of his left knee, which revealed “mild patellofemoral DJD (joint space narrowing and osteophyte formation).” (R. 842).

On January 23, 2018, Plaintiff was treated at St. Barnabas's ED for persistent, severe back pain after “slipping on ice and falling on his back.” (R. 877, 882). Other than severe back pain, Plaintiff exhibited no other health abnormalities or neurological deficits, and had a normal gait. (R. 883). A lumbar spine X-ray revealed no acute fractures or osseous destruction but found moderate degenerative disc disease and sacralization of the L5. (R. 904). The imaging also “[i]ncidentally noted sclerosis within the pubic bones,” which could suggest osteitis pubis. (Id.).

On October 24, 2018, Dr. Cynthia Sudar Singh Prabahar, M.D. (“Dr. Prabahar”) evaluated Plaintiff, who complained of chronic multiple joint pain in his lower back, knees, and shoulders, and found Plaintiff was in no distress, had full range of motion in all major joints, no joint tenderness, no noted tremor, no mobility aids, nor any pain, tingling, or numbness in his lower extremities. (R. 964, 1175). When advised to check for colon cancer, receive immunization, and undergo EKG imaging, Plaintiff refused because he “[did] not like to be touched by someone else.” (R. 964, 966). Plaintiff was assessed with dorsalgia, pain in unspecified knee, bradycardia, and unspecified asthma. (R. 966). Plaintiff continued to experience lower back pain, resulting in limited range of motion, in November and December 2018. (R. 952, 955).

On January 4, 2019, Plaintiff asked Nurse Practitioner Moonju Bae (“NP Bae”) to complete a “social security form regarding his work,” and to refill his medication prescriptions. (R. 949). NP Bae examined Plaintiff and completed the social security form. (R. 949, 951). On examination, Plaintiff showed no sign of distress and was clear of any limitations in his cardiac, pulmonary, abdominal, neurological, skin, psychiatric, head, and neck systems. (R. 949). He did, however, exhibit an abnormal gait, and experienced tenderness and limited range of motion in the left shoulder and knee. (Id.). NP Bae prescribed naproxen and gabapentin, and instructed Plaintiff to use a rolling walker for thirty days for dorsalgia. (R. 949, 951). NP Bae also referred Plaintiff to an orthopedic specialist, and “emphasized” how important it was for Plaintiff to be “compliant with the follow up appointments.” (R. 949).

In a November 2019 ED visit for chest pain and difficulty breathing, (R. 1099), Plaintiff showed no leg pain, no back pain, [and] no joint swelling,” and “gait normal,” (R. 1102-03). An EKG was taken, but “[p]atient eloped” before further evaluation was completed. (R. 1103-04). One month later, Plaintiff reported tingling in his left knee. Evaluation found decreased range of motion, and a doctor provided Plaintiff with prescription and referrals to an orthopedist. (R. 1160).

c. Shoulder, Neck, and Hand Pain

The Tremont medical records note that on February 18, 2015 at Tremont, Plaintiff complained of persistent needle-stabbing pain in his hands that was a 10 out of 10 on the pain scale. (R. 681). The pain started in his right hand but spread to both hands. (Id.). He also experienced a tingling and numbing sensation in his hands and fingers. (Id.). Dr. Zhou's evaluation revealed positive bilateral Tinel signs but good health otherwise, and Plaintiff underwent NCV and EMG testing to rule out carpal tunnel syndrome or radiculopathy. (R. 68182). The NCV tests found “[s]ignificant[ly] reduced C-Fiber conduction velocity” in Plaintiff's right hand and “[m]ild C-Fiber damage” in his left hand. (R. 711). The EMG revealed evidence of sensorimotor nerves demyelinating in his right and left forearms and hands as well as “axonal peripheral polyneuropathy” of his upper extremities, findings consistent with carpal tunnel syndrome and Guyon's canal syndrome. (R. 712-13). Dr. Zhou referred Plaintiff to PT, prescribed Percocet and Mobic, reviewed I-STOP, and ordered a urine toxicology test (see R. 694, 814), and scheduled a follow-up appointment in two months. (R. 682). Two years later, on February 23, 2017, Plaintiff completed an updated NCV test, which found “[m]oderate reduced C-Fiber conduction velocity” in his right and left hands. (R. 722).

On August 3, 2017 and September 15, 2017, Plaintiff returned to Tremont, complaining of neck pain. (R. 643, 645). On both occasions, “he slept the wrong way and woke up with stiff [neck],” and unable to rotate his neck. (Id.). To address his torticollis and neck pain, (R. 644, 646), Dr. Zhukovski advised Plaintiff to use warm compresses, and take a muscle relaxant as needed, (R. 646).

On September 17, 2018, Plaintiff visited St. Barnabas's ED for possible shoulder dislocation. (R. 887). Plaintiff had “picked up a weight” two weeks prior, and while he hadn't felt anything then, the pain had gotten progressively worse. (Id.) Physical examination revealed Plaintiff had TTP (thrombotic thrombocytopenic purpura) in his right upper thoracic and over his scapula. (R. 891). Plaintiff also showed hypertonicity of his left scalenus and trapezius and restricted range of motion of the left upper extremity due to pain. (Id.). His range of motion in his right upper extremity was intact, but movement of the right shoulder caused pain to radiate to his left shoulder. (Id.). Although an assessment plan was created, (id.), Plaintiff became agitated, argued with security and then walked out of the ED, (R. 893).

Plaintiff continued to suffer from shoulder pain. In November 2018, he complained of month-long left shoulder pain, rating it an 8 out of 10, and examination revealed it was tender and swollen with shoulder strength at “2+.” (R. 955). NP Bae prescribed naproxen and Voltaren to address the pain and provided therapeutic ketorolac injections to relieve pain in the left shoulder. (R. 961-63). X-Rays of Plaintiff's shoulder from November 17, 2018 revealed degenerative joint disease (DJD). (R. 887-93, 906). On December 17, 2018, Plaintiff was treated at Lincoln's ED for chronic left shoulder pain “sustained from [a] boxing injury,” (R. 1648), and left with a prescription for Naprosyn, (R. 1652). On January 4, 2019, after continued tenderness and limited range of motion in the left shoulder, in addition to medication, NP Bae referred Plaintiff to an orthopedic specialist, emphasizing how important it was for Plaintiff to be “compliant with the follow up appointments.” (R. 949, 951). Plaintiff saw a specialist, but he returned to Essen on January 28 because the shoulder pain “got worse” after he exercised. (R. 946). Plaintiff reportedly also took 60 pills of 500 mg of naproxen within the span of two weeks. (Id.). NP Bae referred Plaintiff to orthopedic and PT again, and also educated the patient “again” about the risks of “taking overdosage medications.” (Id.).

By March 11, 2019, Plaintiff's shoulder pain had improved, with intact active and passive range of motion in all extremities. (R. 940). NP Bae advised Plaintiff to continue with gabapentin. (Id.). On June 24, 2019, examination revealed tenderness to palpitation and limited range of motion in the left shoulder, but Plaintiff reported he was exercising 2-3 hours a day and taking 3-4 gabapentin pills a day. (R. 1194).

On October 7, 2019, Plaintiff returned with pain in his finger and hand joints, which NP Bae found “tender and swollen.” (R. 1203-04). Lab work showed elevated erythrocyte sedimentation rate, and NP Bae prescribed prednisone. (R. 1204).

On November 21, 2019, Plaintiff returned with pain in his left shoulder. (R. 1206). Plaintiff had limited range of motion, and was started on glucosamine. (R. 1207). A November 22 ED check-up noted chest and shoulder pain. (R. 1102-03).

On December 27, 2019, Plaintiff visited All Med for a check-up and to receive refills. (R. 1159). Plaintiff reported tingling in both hands and pain in his left shoulder. (Id.). Evaluation found decreased range of motion in the left shoulder, as well as decreased bilateral grip in the hands. (Id.). The doctor provided Plaintiff with prescription and referrals to a psychologist, an orthopedist, and a gastroenterologist. (R. 1160).

Subsequent to DLI, in a February 2020 emergency room visit, he complained of left shoulder pain after having lifted “very heavy stuff,” resulting in a limited range of motion. (R. 1489, 1492). Plaintiff continued to show full strength in the extremities. (R. 1492).

d. Abdominal Pain

Plaintiff complained of abdominal pain at various points during the Eligibility Period, (R. 656, 659, 662-63, 670), and had several abdominal sonograms, (R. 637, 668, 671). In Plaintiff's February 2017 abdominal sonogram, Dr. John T. Rigney, M.D. found a mildly enlarged liver “without a focal lesion or an infiltrative process.” (R. 783). Plaintiff was diagnosed with gastroesophageal reflux disease (GERD) on May 17, 2016, and February 23, 2017, (R. 657, 659). Plaintiff was also diagnosed with the broader “abdominal pain, unspecified site” several times. (See, e.g., R. 655, 659, 723).

These findings and diagnoses, however, were not consistent. On November 28, 2017, Plaintiff went to Tremont because he began experiencing abdominal pain when bending forward, after taking part in a boxing match. (R. 636). NP Angol prescribed naproxen for the pain, but examination found no abdominal tenderness with palpation, (R. 636-37), and in examinations from other dates, Plaintiff had no abdominal issues, (See R. 744-48, 949).

e. Obesity

During the Eligibility Period, Plaintiff remained consistently at the cusp of obesity, with a BMI waffling between 25 and 33. (see, e.g., R. 638, 771, 804, 940, 964, 1073, 1158, 1166, 1195, 1337, 1492). Plaintiff complained of difficulty in losing body weight, seeking assistance from a nutritionist, (R. 1194), and was frequently assessed with hyperlipidemia, (see, e.g., R. 639, 785, 1181, 1207). Doctors counseled Plaintiff on diet and exercise, (see, e.g., R. 648, 650, 652, 1152), but on one occasion, a physician noted that his BMI “likely” reflected “more muscle mass” and Plaintiff was “not fat,” (R. 1152).

C. Medical Opinions

1. Opinions Related to Mental Impairments

a. S. Malik - Mental Health Provider

Dr. S. Malik, M.D. began treating Plaintiff at All Med in February 2019, and completed a Medical Source Statement upon meeting Plaintiff for the “first time.” (R. 872, 875). Using a checklist, Dr. Malik ticked off Plaintiff's reported symptoms, and noted Plaintiff's prescribed medications and their side effects. (R. 872-73). Diagnosing Plaintiff with bipolar disorder, PTSD, and insomnia, Dr. Malik believed Plaintiff's impairments were “reasonably consistent” with the symptoms and functional limitations experienced, but noted that Plaintiff “exaggerate[ed] symptoms.” (R. 873).

Dr. Malik opined that Plaintiff's impairments would affect his ability to work, causing him to be absent from work about once a month. (Id.). He also noted that Plaintiff had an “extreme loss” in ability to complete a normal workday or work week without interruptions from psychologically based symptoms; a “marked loss” in ability to understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for two-hour periods, maintain regular attendance and be punctual, and work in coordination with or proximity to others without being unduly distracted; a “moderate loss” in ability to understand and remember very short and simple instructions, sustain an ordinary routine without special supervision, deal with stress or semi-skilled and skilled work, and “[p]erform at a consistent pace without an unreasonable number and length of rest periods;” and “no/mild loss” in his ability to remember locations and work-like procedures and make simple work-related decision. (R. 874). Plaintiff's ability to respond appropriately to supervision, co-workers, and work pressure in a work-setting would not be affected by the impairment. (Id.). In fact, Dr. Malik identified no limitations to Plaintiff's activities of daily living. (R. 875). Dr. Malik also noted, however, that Plaintiff would have “moderate” levels of difficulties in maintaining social functioning; would “often” experience deficiencies of concentration, persistence or pace resulting in “failure to complete tasks in a timely manner;” and would experience “repeated” episodes of deterioration or decompensation causing Plaintiff to “withdraw” from the situation or “experience exacerbation of signs and symptoms.” (Id.). Finally, Dr. Malik opined that Plaintiff would be unable to “manage benefits in his . . . own best interest.” (Id.).

Dr. Malik indicated that Plaintiff's conditions and restrictions as described in the assessment existed and persisted since 2004. (R. 875).

b. Daniel Cohen, Ph.D. - Psychiatric Consultative Examiner

Dr. Daniel Cohen, Ph.D. (“Dr. Cohen”) conducted a consultative psychiatric examination on September 25, 2017, (R. 832-36), and summarized his findings in a medical source statement, (R. 835). Plaintiff reported his psychiatric, medical, addiction, legal, and family histories, including seven psychiatric hospitalizations, a history of heroin and alcohol abuse, and six felony convictions. (R. 832-33). Plaintiff also reported his “current functioning,” which included Plaintiff's weekly check-ins with his parole officer, daily group substance abuse counseling, and weekly individual counselling sessions, as well as Plaintiff's various symptoms of depression, mania, insomnia, anxiety, and trauma. (Id.). Plaintiff identified triggers for anxiety as being in “crowded places,” such as public transportation, (R. 833), and said he was “unable to do laundry, shop, or take public transportation alone” because he did not “feel safe going outside alone,” and couldn't “remember what he was shopping for anyway.” (R. 835). Otherwise, Plaintiff was “able to dress, bathe, and groom himself, cook and prepare food,” “do general cleaning,” and spent his days socializing with other members of his therapy group after sessions or watching TV. (Id.).

Dr. Cohen found Plaintiff to be “fairly groomed,” cooperative, fluent and adequately expressive with appropriate eye contact, clear sensorium, and coherent thought processes. (R. 833-34). However, despite being “oriented to person,” Plaintiff appeared “only partially oriented to place and time,” with “somewhat restless motor behavior” and tense posture, and was “slightly irritated and anxious,” such that he asked for the door to remain open during the evaluation. (R. 834). Examination revealed impaired attention and concentration: Plaintiff was able to count forward and backwards to 10, but unable to count backwards from 20 by 3s or from 100 by 7s and unable to spell the word “world” backwards. (Id.). Plaintiff's memory was impaired, and he was able to repeat only two out of three objects immediately upon being given objects and none of the objects after a five-minute delay. (Id.). Plaintiff's intellectual functioning was noted as “below average” and “his general fund of information . . . limited.” (R. 835).

Based on his examination, Dr. Cohen concluded that Plaintiff showed no limitations in understanding, remembering, or applying simple directions and instructions; in maintaining personal hygiene and appropriate attire; or in awareness of normal hazards and taking appropriate precautions; “mild limitations” in sustaining an ordinary routine and regular work attendance; “moderate limitations in using reason and judgment to make work-related decisions, and in interacting adequately with supervisors, coworkers, and the public;” and “marked limitations in understanding, remembering, or applying complex directions and instructions; in sustaining concentration and performing a task at a consistent pace; and in regulating his emotions, controlling behavior, and maintaining well-being.” (Id.). Dr. Cohen noted that the results of his evaluation were consistent with “psychiatric, past substance abuse, and cognitive problems,” and that they “may significantly interfere with [Plaintiff]'s ability to function on a daily basis.” (Id.).

Dr. Cohen diagnosed Plaintiff with Bipolar II (mixed), panic disorder, agoraphobia, and PTSD, and recommended that Plaintiff continue to receive psychological, psychiatric, and drug treatments. (R. 836). With a prognosis of “fair,” Plaintiff's impairments were expected to last for more than two years, and Dr. Cohen recommended Plaintiff find assistance to “manage his funds,” given his psychiatric and cognitive difficulties. (Id.).

c. M. Juriga, Ph.D. - Psychiatric Consultant

Dr. M. Juriga, Ph.D. completed the mental Residual Functional Capacity (“RFC”) assessment on October 24, 2017, (R. 140-42), and determined that Plaintiff suffered from the primary severe impairment of “depressive, bipolar and related disorders.” (R. 135). Applying the Psychiatric Review Technique, Dr. Juriga determined that Plaintiff's medical evidence did not satisfy the diagnostic criteria of Paragraph A listings for 12.06, 12.08, 12.11, and 12.15, but that under Paragraph B listings, Plaintiff had moderate limitations in understanding, remembering, and applying information and concentrating, persisting, and maintaining pace, as well as mild limitations in interacting with others, and adapting or managing oneself.¹³ (R. 136).

13 Dr. Juriga found no evidence to establish the presence of the “[Paragraph] C Criteria.” (R. 136).

Dr. Juriga opined that Plaintiff retained the mental capacity for simple, unskilled work. (R. 135, 142). To determine Plaintiff's mental RFC, Dr. Juriga reviewed all available medical evidence and opinions received as of October 24, 2017, including certain St. Barnabas records, Tremont hospital records, Dr. Cohen's consultative examination report, and non-medical evidence, including Plaintiff's SSA-5002 Report of Contact form and Activities of Daily Living report. (R. 132-34). Dr. Juriga adopted Dr. Cohen's medical opinion “as supported by the [medical evidence] in file.” (R. 137-38). Plaintiff's mental impairments were “reasonably . . . expected” to produce Plaintiff's symptoms, but the medical evidence supported the conclusion that Plaintiff's impairments were not as severe as alleged. (R. 137).

Dr. Juriga determined Plaintiff had either nonsignificant or moderate limitations in his abilities. Plaintiff had nonsignificant limitations in ability to understand, remember, and carry out very short and simple instructions; work in coordination with or in proximity to others without being distracted by them; make simple work-related decisions; be aware of normal hazards and take appropriate precautions; travel in unfamiliar places and use public transportation; set realistic goals and make plans independently; and interact socially. (R. 14042). Plaintiff had moderate limitations in ability to remember and understand locations, worklike procedures, and detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, complete a normal workday or workweek, respond appropriately to changes in the work setting, perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (R. 141-42).

2. Opinions Related to Physical Impairments

a. Moonju Bae - Treating Medical Source ¹⁴

14 Since March 27, 2017, nurse practitioners are considered acceptable medical sources. Lebby v. Comm'r of Soc. Sec., 20-CV-4760 (PKC), 2022 WL 580983, at *1, n.2 (E.D.N.Y. Feb. 24, 2022).

Nurse Practitioner Moonju Bae completed a Medical Source Statement on January 4, 2019,¹⁵ and diagnosed Plaintiff with dorsalgia, PTSD, hyperlipidemia, anxiety, left knee pain related to a job accident, and left shoulder pain. (R. 866-71). Plaintiff's symptoms included chronic lower back, left knee, and left shoulder pain that worsened when bearing weight, and objective signs included reduced range of motion in his lower back and left knee, impaired sleep, tenderness, crepitus, and muscle spasms. (Id.). NP Bae identified Plaintiff's anxiety and personality disorder as psychological conditions affecting his pain, and noted that Plaintiff's medication had side effects of drowsiness and stomach upset. (R. 867).

15 Although the opinion is signed January 4, 2018, treatment records suggest that the opinion was filled out and signed on January 4, 2019. (R. 949).

NP Bae assessed that in an eight-hour day, Plaintiff could sit for 15 minutes at a time before needing to alternate postures by walking about, and could sit for less than one hour in total. (R. 867-68). Plaintiff could stand or walk for only 15 minutes before returning to a seated position, and could stand or walk for a total of one hour. (Id.). He deemed Plaintiff able to occasionally lift and carry up to ten pounds; never balance or stoop; occasionally flex and rotate his neck; and constantly reach, handle and finger bilaterally. (R. 869-70). When sitting, Plaintiff did not need to elevate either leg. (R. 867). When walking, although Plaintiff required a cane or walker for prolonged ambulation, an assistive device was not medically necessary for ambulating on uneven surfaces, walking up or down slopes, and for standing. (R. 870). NP Bae opined that Plaintiff's pain, fatigue and other symptoms were severe enough to frequently interfere with attention and concentration, that Plaintiff's ability to deal with work stress was “moderate[ly] limit[ed],” and that Plaintiff's impairments were likely to cause about three absences per month. (R. 867, 871). NP Bae opined that Plaintiff's symptoms and related limitations applied as far back as 2014. (R. 871).

b. Carol McLean Long, M.D. - Internal Medicine Consultative Examiner

Dr. Carol McLean Long, M.D. (“Dr. McLean Long”) performed a consultative physical examination on September 25, 2017, and summarized her findings in a medical source statement. (R. 837-43). Plaintiff reported a history of asthma, high blood pressure, substance abuse, and decade-long back and knee pain that he rated as 7 and 8 out of 10, respectively.¹⁶ (R. 837-38). He received PT and took medication. (Id.). Although he was unable to do laundry, shop, or “real heavy cooking,” he could shower daily, dress himself, microwave and wash one plate, and he enjoyed watching TV, listening to the radio, reading, and occasionally going out with friends. (R. 838). Plaintiff estimated he could walk two blocks in six minutes, sit for ten minutes, stand for two minutes, go up six flights of stairs with a break on the third, and could sit or stand, although he preferred to recline. (Id.).

16 Plaintiff also reported his psychological impairments to Dr. McLean Long but because she “defer[red] to psychiatry regarding [Plaintiff's] psychological history,” (R. 841), his reported psychological history is not included in this summary.

During his physical examination, Plaintiff appeared to be in mild distress. (R. 839). His stance was normal and wide, but his gait was “slow with a limp,” and he was unable to walk on heels and toes due to pain. (Id.). Although Plaintiff did not need assistance changing for the exam or rising from a chair, Dr. McLean Long noted that “he definitely look[ed] like he need[ed] a cane for ambulation purposes and balance,” and Plaintiff informed the doctor he used to have one that he lost in a cab. (Id.). His cervical and lumbosacral spine showed full flexion and extension, while his lumbosacral spine was more limited. (Id.). Plaintiff leant more towards the right “approximately 45 to 60 degrees,” had full bilateral lateral flexion that was slow, and had poor bilateral rotary movement of only “approximately 10 degrees.” (R. 839-40). Examination resulted in positive straight leg raise tests; limited flexion, extension, and rotational movement of the hips to the left; limited flexion and extension of the left knee (approximately 90 to 100 degrees); limited flexion and extension of the right knee (approximately 130 to 140 degrees); and limited dorsiflexion and plantar flexion in his left ankle (less than 5 degrees). (R. 840). Joints were stable and nontender. (Id.). Plaintiff also exhibited full strength in the upper and right lower extremities, and 4/5 strength in the left lower extremity, with intact hand and finger dexterity and full grip strength. (Id.).

Dr. McLean Long also ordered and reviewed X-rays of Plaintiff's knee. (R. 840). The imaging revealed “mild patellofemoral [degenerative joint disease] (joint space narrowing and osteophyte formation).”

Based on her examination and the X-rays, Dr. McLean Long found “moderate limitation” in Plaintiff's ability to walk generally, walk on heels and toes, squat, flex and extend the left hip, flex and extend the left knee, maneuver the left ankle, and perform a straight leg raise in the supine and sitting positions on the left. (R. 841). There was “mild to moderate limitation” in his ability to flex and extend the lumbar spine. (Id.). Plaintiff was also advised to “avoid dust, smoke, fumes, or respiratory irritants secondary to asthma.” (Id.). Dr. McLean Long indicated that Plaintiff's prognosis was fair in the following: history of injury on the left side with left knee and thigh pain; status post injury with back pain and left knee pain; history of asthma; and hypertension. (R. 840-41).

c. Syed Ahmed, M.D. - State Agency Medical Consultant

Dr. Syed Ahmed, M.D. completed the physical Residual Functional Capacity (“RFC”) assessment on November 8, 2017, (R. 138-40), and determined Plaintiff suffered a secondary severe impairment of dysfunction of major joints, which could “reasonably be expected to produce the individual's pain or other symptoms,” but not to the degree alleged by Plaintiff. (R. 135, 137). In assessing the consistency between Plaintiff's statements about his symptoms and the medical evidence on file, Dr. Ahmed looked at Plaintiff's ADLs; the location, duration, frequency and intensity of Plaintiff's pain and symptoms; his precipitating and aggravating factors; his statements made to medical sources; and non-medication treatment. (R. 137).

Dr. Ahmed opined that Plaintiff retained the ability for light work. (R. 140). In addition to the medical records, Dr. Ahmed adopted Dr. McLean Long's medical opinion “as supported by the [medical evidence] in file.” (R. 137-38). Based on these records, Dr. Ahmed determined that in an 8-hour day, Plaintiff could lift 20 pounds occasionally and 10 pounds frequently, stand or walk for six hours with normal breaks, and sit for six hours with normal breaks. (R. 138-39). Dr. Ahmed found that Plaintiff could frequently climb ramps and stairs, occasionally climb ladders, ropes, or scaffolds, and occasionally balance, stoop, kneel, crouch, and crawl. (R. 139). Dr. Ahmed also noted Plaintiff's limited push and pull abilities in his upper extremities, (R. 138), but found no manipulative limitations, (R. 139). Dr. Ahmed opined that Plaintiff needed to “avoid concentrated exposure” of extreme cold, wetness, fumes, odors, dusts, gases, poor ventilation, and hazards. (Id.).

d. Karen Stanford - Evaluating Doctor

Dr. Karen Stanford (“Dr. Stanford”), an intake physician at the Fedcap WeCARE (Wellness, Comprehensive Assessment, Rehabilitation and Employment) Program, conducted a biopsychosocial interview of Plaintiff on March 3, 2017. (R. 739). As part of this evaluation, Dr. Stanford reviewed notes from a prior biopsychosocial interview taken on September 10, 2014, in addition to Plaintiff's reported history. (R. 739-41). “[Plaintiff] report[ed] mental health barrier to employment,” and in 2014, “he was referred to the wellness track,” and had been “recommend[ed] for voc[ational] rehab[ilitation].” (R. 726, 740). Dr. Stanford also noted that Plaintiff would have limitations in his cognitive abilities (i.e., memory impairment), emotional regulation capabilities (requiring “low stress environment”), and interpersonal abilities. (R. 75354).

Physically, Dr. Stanford noted that Plaintiff appeared sleepy and talked slowly, but he was “without physical impairment or obvious pain.” (R. 748). Examinations revealed no medical issues other than vision impairment and a tooth cavity. (R. 749). His right ankle, which had a gunshot wound, had greater mobility than his left foot, and he was able to move it without any pain, tenderness, or swelling. (R. 751). Because of Plaintiff's knee and ankle pain, Dr. Stanford recommended that Plaintiff limit his exertional efforts in standing, walking, squatting, and “repetitive bending, crouching, stooping.” (R. 752-53). Dr. Stanford also recommended that Plaintiff limit his lifting activities, “due to hernia history,” and avoid dust, fumes, temperature extremes, heights, machinery, and operating motor vehicles, due to his asthma. (R. 752, 754).

Dr. Stanford concluded, however, that Plaintiff's conditions “should be addressed by a treating physician before an appropriate functional capacity assessment can be made,” and suggested that based on her review of the BPS interview, examination, and available documentation, “[Plaintiff] may potentially be employed in some capacity afterwards.” (R. 759).

D. The ALJ Hearings

The ALJ held two hearings by video, with Plaintiff appearing from Bronx, NY, and ALJ Suna presiding from Jersey City, NJ. (R. 10).

At the May 20, 2019 hearing, Plaintiff's attorney, Erica Bullo, indicated that Plaintiff's severe impairments were back pain, abuse and dependence, hyperlipidemia, bipolar disorder, PTSD, depression and anxiety, left knee pain, and left shoulder pain. (R. 79-80). Ms. Bullo made no objections to existing exhibits; was given until May 31, 2019 to provide additional records from nurse practitioner Crystal Ball; and confirmed there were no missing medical records from the Record. (R. 79). Vocational Expert (“VE”) Howard Steinberg was present but was not asked to testify. (Id.).

At the March 9, 2020 hearing (“2020 Hearing”), VE Helene J. Feldman (“VE Feldman”) testified, Plaintiff provided further testimony, and Plaintiff's new attorney, Robert Sackett, gave closing arguments. (R. 42-73). Mr. Sackett made no objections to existing exhibits and was given until March 30, 2020 to provide any additional medical records. (R. 48, 72).

1. Plaintiff's Testimony

Over the course of both hearings, Plaintiff testified to his prior work history, daily activities, and limitations. First, Plaintiff briefly discussed his work history. Plaintiff recalled his last job was as a “[g]eneral helper” in “a warehouse,” (R. 86), but did not know when he lost the job, (R. 85). He testified that he stopped working because he experienced “time outs,” and “[his] boss . . . couldn't have no more.” (R. 86). Every other week or so, Plaintiff struggled with his mental illnesses at work, where he would “yell at people . . . and run and hide,” and his boss “would catch [him] in the corner crying and stuff like that.” (R. 88). Plaintiff said he was not “fired,” but he “had to leave the place.” (R. 86). He had not looked for work since leaving his position as general helper, (id.), and public assistance had exempted him from working, (R. 89).

Second, Plaintiff testified about his daily activities and physical and mental limitations. Plaintiff was right-handed, but pain forced him to use his left hand to grab objects. (R. 83). He moved into his girlfriend's apartment in 2016 on the third floor of a walk-up apartment building and relied heavily on his girlfriend to “tak[e] care of him.” (R. 81-82). Plaintiff testified that his girlfriend did “everything for [him],” (R. 87), including all the “laundry, grocery shopping, cleaning, [and] cooking.” (R. 89).¹⁷ Plaintiff was too afraid to “really go nowhere,” (id.), and he didn't “have nobody much to socialize” with, (R. 90), but when he did leave the apartment, his girlfriend accompanied him, (R. 89).

17 Plaintiff's attorney in the 2020 Hearing mentions in closing statements that Plaintiff was living “in an apartment where he rents out a room,” where “they cook for him, they clean his room, they clean the apartment . . . They do his laundry[;] they do everything.” (R. 71). To the extent this was a new and different living situation from his time with his girlfriend, it appears Plaintiff's daily activities differed little.

Plaintiff's anxiety limited his modes of transportation. (R. 88-89). He could not take buses, trains, and cars because he could “get crazy in there,” (R. 87), “shaking because [the car was] too small,” (R. 89). When he rode in Medicaid-provided cabs to his appointments, Plaintiff would have to “get out” and walk with the cab following him to make sure he got to the appointment. (R. 88-89). Walking, however, was also allegedly difficult for Plaintiff, as he was physically unable to walk more than three blocks. (R. 87, 90). Plaintiff reportedly used a cane prescribed by his doctor in 2017 “every day,” “all the time, anywhere [he went],” even including the short walks from room to room inside the apartment. (R. 87). He also wore a knee brace “all the time.”¹⁸ (R. 90). Plaintiff testified that he could stand for 10-20 minutes and sit for 10-15 minutes. (R. 91). At the 2020 hearing, Plaintiff requested and the ALJ granted permission to stand up. (R. 57).

18 Plaintiff was utilizing both the cane and the knee brace at his first hearing. (R. 87, 90). Plaintiff was using a cane at the second hearing, (R.48), but it is unconfirmed whether he was using his knee brace at the second hearing.

Despite these limitations, Plaintiff testified he never missed doctors' appointments. (R. 90). Plaintiff attended PT for his back and knee twice a week, (R. 51), visited the clinic All Meds “once a week,”¹⁹ (R. 51-52, 92), and met with a doctor who dealt “strictly with [his] medications,” once a month, (R. 52, 92). According to Plaintiff's attorney, Plaintiff was on several medications, some of which caused “dizziness, drowsiness, nausea, and things of that nature.” (R. 71). Side effects from morning medication would allegedly “last for hours,” impacting normal business hours. (R. 71). Moreover, Plaintiff testified that his medication did not always work, and he heard voices “all the time” despite taking “heavy medication” meant to stop it. (R. 91). He used his asthma pump one to two times a week, sometimes more if the weather was too hot or cold. (R. 91).

19 Plaintiff's attorney changed this frequency to “twice a month” in an oral summary at the hearing. (R. 52).

Plaintiff struggled with a myriad of mental limitations, as well. He had thoughts of hurting himself, (R. 91), and Mr. Sackett noted that Plaintiff suffered “dysphoric moods, crying spells, fatigue, guilt, diminished self-esteem, diminished sense of pleasure, low motivation, . . . social withdrawal[,] . . . hopelessness,” insomnia, panic attacks and other “anxiety related symptomology.” (R. 70-72). Plaintiff testified that he did not watch too much TV because it “upset[]” him and “trigger[ed]” him, causing blackouts. (R. 90).

2. The Vocational Expert's Testimony

VE Feldman testified that she reviewed Plaintiff's file prior to the hearing, (R. 53), and identified Plaintiff's past work as a varnish maker helper (553.686-042) and buzz saw operator helper (667.687-010). (R. 56). Both positions required heavy exertion. (Id.).

The ALJ posed a hypothetical to VE Feldman, asking her to assume an individual of Plaintiff's age, education and vocational history, with the following limitations:

[able to do] light work; no more than occasionally operat[ing] foot controls[;] no more than frequent reaching with the non-dominant upper left extremity[;] no more than occasional climbing of ramps and stairs[;] never climbing ladders, ropes, and scaffolds[;] no more than occasional balancing, stopping, kneeling, crouching, and crawling[;] no more than occasional exposure to dust, odor, fumes, and pulmonary irritants[;] . . . limited to simple, routine tasks that are not at a production rate pace such as assembly line work[;] . . . no more than occasional changes in the work setting[; and] no more than frequent interaction with supervisors, coworkers, and the public.

(R. 57). VE Feldman testified that such an individual could not perform Plaintiff's past work. (R. 57-58). Instead, the individual could work as a decal applier (749.684-010), outside deliverer (230.663-010), and collator operator (208.685-010). (R. 58-59). There were approximately 12,200 decal applier jobs, 75,720 outside deliverer jobs, and 196,570 collator operator jobs available in the national economy. (Id.).

The ALJ asked the VE how it would impact these three jobs if he limited the hypothetical further such that the hypothetical person could “only stand or walk no more than four hours in an eight hour workday.” (R. 59). The VE testified that the hypothetical person sitting or standing at will while remaining on task could be a decal applier, garment bagger (920.687-018) or a silver wrapper (318.687-018). (R. 59-60).

The ALJ further limited the hypothetical to only sedentary work. The VE testified that such a person could be a dowel inspector (669.687-014), a hand almond blancher (521.687-010), a nut sorter (521.687-086), or a document preparer (249.587-018). (R. 60-61).

The ALJ asked the VE to consider the need for “a hand-held assistive device, for uneven terrain or prolonged ambulation when walking.” (R. 61). Such a person could not work as an outside deliverer, a collator operator, or a decal applier, but the individual would be able to work as a garment bagger or as a stenciler (920.687-178). (R. 61-63). The individual could also work as a silver wrapper, but there would be “some reduction in numbers because . . . [silver wrappers] may be required to go and get the silverware [to] lay it out on the napkins . . . [and] may need two hands for that.” (R. 62-63). The use of an assistive device would have no effect on jobs that could be performed at sedentary level: dowel inspector, hand almond blancher, and nut sorter. (R. 63).

Mr. Sackett presented a new hypothetical asking the VE to consider an individual who “could sit, remain seated only ten to fifteen minutes, and then had to stand up and remain standing for only ten to fifteen minutes, and after two or three hours, had to lie down for twenty to thirty minutes in an eight-hour workday.” (R. 66-67). The VE opined that no sustainable employment would be available. (R. 67).²⁰

20 The VE was unable to answer three additional hypotheticals posed by the attorney because his hypotheticals were not phrased “in vocational terms,” (R. 67), and appeared to require medical knowledge to properly answer them, (R. 67-69).

Finally, prompted by the ALJ, the VE opined that in an eight-hour workday, an employee could be off-task no more than 5% of the worktime, in addition to regularly scheduled breaks, before being considered intolerable by an employer. (R. 63-64). Also, “one day a month is allotted for sick time,” and “anything beyond that on a consistent basis would not be tolerated.” (R. 64).

E. The ALJ's Decision

ALJ Suna determined in his April 29, 2020 decision that Plaintiff met the insured status requirements of the Act through December 31, 2019. (R. 13). ALJ Suna then applied the five-step procedure established by the Commissioner for evaluating disability claims. See 20 C.F.R. §§ 404.1520(a) (2012) and 416.920(a) (2012). (R. 11-12). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from the alleged onset date on October 15, 2014 through her date of last insured on December 31, 2019. (R. 13).

At step two, the ALJ found that Plaintiff had the following severe mental impairments: post-traumatic stress disorder, depressive disorder, anxiety disorder, panic disorder, schizoaffective disorder, and opiate use disorder. (Id.). The ALJ also found severe physical impairments: degenerative joint disease of the left shoulder, lumbar and cervical spine disorders, degenerative joint disease in his bilateral knees, gunshot wound to the right ankle, asthma, and obesity. (Id.). The ALJ considered other symptoms Plaintiff was experiencing but determined that they were either non-severe or non-medically determinable impairments. (Id.). In particular, he found that the record did not support any functional limitations related to Plaintiff's symptoms associated with hyperlipidemia, GERD, hand pain, and carpal tunnel syndrome, noting inter alia that “despite continuing to complain of pain in multiple joints,” physicians found “no muscle atrophy, active and free range of motion [in] all extremities, no tremors, 5/5 strength throughout, no focal deficits, and no muscle spasms.” (Id.).

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 impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (R. 18). First, the ALJ considered Plaintiff's physical impairments. He considered listing 1.02 but found that Plaintiff's conditions associated with degenerative joint disease of the left shoulder and knees, cervical spine disorder, and gunshot wound to his ankle did not fit because he did not “suffer from chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion.” Nor were there “findings of joint space narrowing, bony destruction, or ankylosis.” (R. 14). Plaintiff's conditions also did not fit listing 1.04 because there was “no evidence” that they resulted in an inability to perform fine and gross movements effectively or an inability to ambulate effectively by virtue of nerve root compromise, nerve root compression accompanied by sensory or reflex loss, spinal arachnoiditis, or lumbar spinal stenosis. (Id.). The ALJ also found Plaintiff's asthma symptoms did not meet listings 3.02 or 3.03 because “the evidence of record [did] not demonstrate the requisite FEVI score or exacerbations or complications requiring three hospitalizations within a 12-month period and at least 30 days apart, as required by the listing.” (R. 15). In addition, the ALJ also determined that the effects of Plaintiff's obesity did not equal a medical listing in any body system. (Id.).

Second, the ALJ determined that the mental impairments also did not meet criteria for one of the listed impairments. (R. 16). Namely, ALJ Suna determined that the “Paragraph B” criteria of listings 12.03, 12.03, 12.06, and 12.15 were not satisfied because Plaintiff's mental impairments did not result in one extreme limitation or two marked limitations in one of the four broad areas of functioning: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. (R. 16-17). The ALJ determined that Plaintiff had moderate limitations in all four categories and explained his analysis largely in terms of what Plaintiff testified he was able to do on a daily basis. (Id.).

The ALJ then determined that Plaintiff had the Residual Functional Capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(a), except:

(1) no more than occasional operation of foot controls; (2) no more than frequent reaching with the non-dominant upper left extremity; (3) no more than occasional climbing of ramps and stairs; (4) never climbing of ladders, ropes, and scaffolds; (5) no more than occasional balancing, stooping, kneeling, crouching, and crawling; (6) no more than occasional exposure to dust, odors, fumes, and pulmonary irritants; (7) limited to simple, routine tasks that are not at a production rate pace (e.g., assembly line work); (8) tolerate no more than occasional changes in the work setting; and (9) no more than frequent interaction with supervisors, coworkers, and the public.

(R. 18-19). In arriving at the RFC, the ALJ determined that although Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, Plaintiff's statements concerning the intensity, persistence, and limiting effects of the symptoms were “not entirely consistent with the medical evidence and other evidence in the record.” (R. 19). The ALJ cited to parts of the Record he found inconsistent with Plaintiff's description of his symptoms and limitations, (R. 19-20), and that suggested his recent psychiatric symptoms were caused by noncompliance with treatment and substance abuse. (R. 20-21).

When assessing the medical opinions, the ALJ addressed each medical opinion, provided an analysis of the opinion's supportability and consistency, and opined on its persuasiveness. (R. 23-30). ALJ Suna supported his assessments of the medical opinions relating to Plaintiff's mental impairments with references to the Record, as follows:

For example, medical professionals noted that the claimant presented with no depressive symptoms, no changes in sleep habits, and no changes in thought content. (1F, p. 59). In fact, medical professionals noted that the claimant's psychological symptoms were stable with medication, and that the claimant did not

present with any suicidal ideations or thoughts. (5F, p. 23; 16F, ps. 3 and 12; 17F, p. 4; and 18F, p. 3). Significantly, medical records reveal that the claimant reported that he had “no issue[s] at this time,” and that his “medications are working well.” (17F, p. 6; 18F, p. 5; and 21F, p. 22). Providers further noted that the claimant was cooperative during his appointments, and that he was oriented to time, place, and person. (16F, p. 12). Medical professionals additionally noted that mental status examinations showed that the claimant exhibited normal funds of knowledge, normal recent and remote memory functioning, intact attention and concentration (providers noted that the claimant was able to calculate), goal directed thought content, intact/fair judgment and insight, normal behavior, and cooperative attitude. (17F, p. 6; 18F, p. 5; 19F, ps. 58, 64, 70, and 79; 21F, p. 22; and 25F, ps. 45-46). Indeed, professionals noted that the claimant achieved 30/30 on a mental status examination. (21F, p. 22). Providers also noted that PHQ-2 testing showed no symptoms, and that the claimant denied feeling down/depressed or hopeless. (19F, p. 31 and 28F, p. 6). Medical records further indicate that the claimant reported mild improvement and that he was doing somewhat better. (19F, ps. 43, 44, 46, and 51). In addition, the claimant's reported activities are consistent with an individual that can still function at a high level. Specifically, the claimant engages in multiple and varied activities such as working out, running, boxing, lifting weights, and working part-time as a boxing trainer. (1F, p. 8; 3F, p. 6; 16F, p. 14; 19F, p. 13; 25F, p. 27; 26F, p. 2; and 29F, p. 12).

(R. 23-24; see generally R. 23-26). When discussing his findings relating to Plaintiff's physical impairments, ALJ Suna cited to the following evidence in the Record:

For example, physical examinations of the claimant revealed that he did not have any stiffness, pain, or tenderness in his neck or cervical spine area, and that the claimant had free range of motion in his right knee (despite having pain). (1F, ps. 8, 12, 17, 21, 25, 30, 38, 51, 57, and 59; and 19F, p. 31). Physical examinations of the claimant also indicated that the claimant exhibited normal strength, intact sensation, normal tone, normal heel/shin testing, and normal finger/nose testing. (1F, p. 53). Medical providers further noted that the claimant did not have any tenderness with palpation in his lumbar spine, and that the claimant did not complain of any weakness, tremors, or physiological findings. (1F, p. 59). On other occasions, medical professionals noted that the claimant exhibited a normal gait and intact neurological findings. (16F, ps. 2, 7, and 12; 19F, ps. 7, 13, 31, 56, and 57; and 30F, p. 12). Significantly, despite continuing to complain of pain in multiple joints, medical professionals in 2018 and into November 2019 assessed that the claimant had no muscle atrophy, active and free range of motion all extremities, no tremors, 5/5 strength throughout, no focal deficits, and no muscle spasms. (19F, ps. 7, 19, 31, 56, 57, 63, 64, 67, and 82; 28F, p. 23; and 30F, ps. 12 and 15). Providers further noted that the claimant exhibited a normal gait and that he did not require the use of an assistive device. (19F, ps. 19 and 31). Medical professionals additionally noted that the claimant presented with negative musculoskeletal and neurological findings, and that the claimant denied having any joint pain or muscle

spasms. (19F, ps. 56, 63, 67, 70, 73, 76, 79, 82, and 85; 28F, p. 31; 29F, ps. 10 and 128; and 30F, ps. 12 and 15). In addition, the claimant's reported activities are consistent with an individual that can still function at a high level. Specifically, the claimant engages in multiple and varied activities such as working out, running, boxing, lifting weights, and working part-time as a boxing trainer. (1F, p. 8; 3F, p. 6; 16F, p. 14; 19F, p. 13; 25F, p. 27; 26F, p. 2; and 29F, p. 12).

(R. 26-27; see generally R. 26-30). ALJ Suna also provided additional limited commentary regarding the opinions he found unpersuasive. (R. 27, 28, 30).

Of the medical opinions regarding Plaintiff's psychological impairments, the ALJ found Dr. Juriga's opinions generally persuasive and Dr. Cohen's and Dr. Malik's opinions unpersuasive. (R. 25-26). First, the ALJ found Dr. Cohen's opinion unpersuasive because his findings were “inconsistent” with other evidence in the file. The ALJ noted instances in which Plaintiff had experienced no symptoms and his “medications [were] working well,” and “specifically” noted that a finding of “marked limitations” and “significant[] interfere[nce] with [Plaintiff's] ability to function” were inconsistent with the Record. (R. 23-24). Second, the ALJ concluded that Dr. Juriga's opinion, which found that Plaintiff experienced mild-to-moderate limitations, was “generally persuasive.” (R. 24-25). Finally, the ALJ addressed Dr. Malik's opinion, finding it unpersuasive because the opinion was “not consistent with the overall evidence,” and specifically noted that Dr. Malik's opinion was unpersuasive “especially where Dr. Malik relied on [Plaintiff]'s subjective complaints.” (R. 25-26).

Turning to the medical opinions regarding Plaintiff's physical impairments, ALJ Suna found Dr. McLean Long's and Dr. Ahmed's opinions persuasive, but Dr. Stanford's and NP Bae's opinions unpersuasive. (R. 26-30).

First, Dr. McLean Long's opinion was “generally persuasive,” for its consistency with the doctor's own examination of Plaintiff-”which found no more than moderate objective findings”-as well the medical evidence in the Record-which also “showed minimal to moderate objective findings.” (R. 26-27). The ALJ also specifically found that Dr. McLean Long's physical examination of the claimant “placed [her] in a good position to assess and observe [Plaintiff's] functioning and abilities.” (R. 27). The ALJ noted that Dr. McLean Long's opinion was inconsistent with the Record regarding Plaintiff's need for an assistive handheld device, specifically referencing Plaintiff's reports of “boxing, working as a boxing trainer, working by lifting weights, and running” during the eligibility period, but found Dr. McLean Long's opinions otherwise generally persuasive, “especially where the evidence shows that [Plaintiff] would be able to perform at least light level work activities.” (Id.).

Second, the ALJ found Dr. Stanford's opinion unpersuasive, and supported it with specific cites to the Record. (R. 28). The ALJ determined that Dr. Stanford's assertion that Plaintiff would be unable to work, (R. 758), was not an opinion entitled to “special or significant consideration” because it was “an administrative finding dispositive of [Plaintiff's] case.” (R. 28) (citing 20 C.F.R. §§ 404.1527(e)(1)(3), 416.927(e)(1)(3)). Third, the ALJ found Dr. Ahmed's opinion “generally persuasive” for its consistency with the other evidence in the Record. (R. 29). His decision is supported by cites to the Record. (Id.).

Finally, the ALJ found NP Bae's opinion “not . . . persuasive” because it was inconsistent with other evidence in the Record. (R. 30). The ALJ specifically noted that NP Bae's opinion regarding Plaintiff's need for an assistive handheld device was not supported by the objective evidence, “especially where the claimant reported boxing, working as a boxing trainer, working by lifting weights, and running.” (R. 30) (citing R. 636, 765, 890, 946, 1114, 1142, 1220).

Based on his review of the Record, the ALJ determined that Plaintiff was unable to perform his past relevant work as varnish maker helper and buzz saw operation helper. (R. 31). However, the ALJ concluded he was not disabled under the Act because he could perform other work as a decal applier, outside deliverer, collator operator, garment bagger, or silver wrapper, (R. 32-33).

II. DISCUSSION

Plaintiff asserts that remand is warranted because (1) the ALJ committed legal error by failing to consider how much time Plaintiff would be absent or off-task; (2) the ALJ's consideration of Plaintiff's psychiatric medical opinions was flawed; and (3) the ALJ wrongly concluded that Plaintiff's RFC was light instead of sedentary because he improperly found Plaintiff's treating physician's medical opinion unpersuasive and failed to consider other evidence in the Record that supported a sedentary RFC. (Docket No. 21 at 26-38²¹; Docket No. 26 at 1-4). Defendant denies any defective reasoning and argues that substantial evidence supports the ALJ's rejection of the medical opinions and his finding of a light RFC. (Docket No. 25 at 26-35).

21 All page citations to the parties' briefs refer to the page numbers assigned upon the electronic filing of the documents.

A. Legal Standards

1. “Disability” Under the Act

The Social Security Administration (“SSA”) administers two disability benefits programs: the Social Security Disability Insurance Program (“DIB”), which provides benefits to disabled persons who have contributed to the program while employed, and the Supplemental Security Income Program (“SSI”), which provides need-based financial assistance to aged, blind, and disabled persons who have limited income and resources. See Kirk v. Comm'r of Soc. Sec. Admin., 987 F.3d 314 (4th Cir. 2021).

A claimant is disabled if she “is unable . . . ‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.'” Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)).

The SSA has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a [RFC] assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's [RFC], age, education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008)); 20 C.F.R. § 404.1520(a)(4)(i)-(v) (2012) (setting forth the five-step evaluation used for DIB claims); id. § 416.920(a)(4)(i)-(v) (2012) (setting forth a parallel set of regulations that govern SSI applications).

When a claimant alleges mental impairments, the regulations “require application of a ‘special technique,'” called the Psychiatric Review Technique (PRT), “at the second and third steps of the five-step framework.” Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008); see also 20 C.F.R. §§ 404.1520a(a), 416.920a(a). Under this technique, the commissioner must follow a two-step procedure: first, he must determine whether the claimant has a medically determinable mental impairment, and if found, then second, he must “‘rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c),' ... which specifies four broad functional areas.” Kohler, 546 F.3d at 265-66 (quoting 20 C.F.R. § 404.1520a(b)(2)). Those four broad functional areas are: (1) “understand, remember, or apply information;” (2) “interact with others;” (3) “concentrate, persist, or maintain pace;” and (4) “adapt or manage oneself.” 20 C.F.R. § 404.1520a(c)(3). Limitations in these areas are measured by degrees on a five-point scale: none, mild, moderate, marked, and extreme, of which “extreme” refers to “a degree of limitation that is incompatible with the ability to do any gainful activity.” Id. § 404.1520a(c)(4). An impairment that “functionally equal[s] the listings” means that “it must result in ‘marked' limitations in two domains of functioning or an ‘extreme' limitation in one domain.” Id. § 416.925(b)(2)(ii).

Between steps three and four, the ALJ must determine the claimant's RFC. The RFC is “the most [a person] can still do despite [their] limitations.” Id. § 404.1545(a)(1) (2012). A plaintiff's RFC is “determined based on all of the relevant medical and other evidence in the record, including the claimant's credible testimony, objective medical evidence, and medical opinions from treating and consulting sources.” Rivera v. Comm'r of Soc. Sec., 368 F.Supp.3d 626, 640 (S.D.N.Y. 2019) (citing 20 C.F.R. § 404.1545(a)(3), 416.945(a)(3)). When determining the RFC, the ALJ considers “a claimant's physical abilities, mental abilities, [and] symptomatology, including pain and other limitations that could interfere with work activities on a regular and continuing basis.” Weather v. Astrue, 32 F.Supp.3d 363, 376 (N.D.N.Y. 2012) (citing 20 C.F.R. § 404.1545(a)). This includes consideration of Plaintiff's limitations “imposed by both severe and nonsevere impairments.” Parker-Grose v. Astrue, 462 Fed.Appx. 16, 18 (2d Cir. 2012) (summary order). Therefore, “conclusory statements regarding plaintiff's capacities are not sufficient,” Rosado v. Barnhart, 290 F.Supp.2d 431, 441 (S.D.N.Y. 2003) (internal quotations and citation omitted), and an ALJ's findings “must specify the functions plaintiff is capable of performing” and should “include a narrative discussion, describing how the evidence supports the ALJ's conclusions, citing specific medical facts, and non-medical evidence,” Brian Z. v. Comm'r of Soc. Sec., 5:20-CV-737 (ATB), 2021 WL 3552525, at *4 (N.D.N.Y. Aug. 11, 2021) (citation omitted).

The claimant has the general burden of proving that they are statutorily disabled “and bears the burden of proving his or her case at steps one through four.” Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts “to the Commissioner to show there is other work that [the claimant] can perform.” Brault v. Soc. Sec. Admin. Comm'r, 683 F.3d. 443, 445 (2d Cir. 2012) (per curiam).

2. Standard of Review

When reviewing an appeal from a denial of disability benefits, the court's review is “limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see also 42 U.S.C. § 405(g). The Court does not substitute its judgment for the agency's or “determine de novo whether [the claimant] is disabled.” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (quoting Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)).

Such a deferential standard, however, is not applied to the Commissioner's conclusions of law. Where the proper legal standards have not been applied and “might have affected the disposition of the case, [the] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). Therefore, the court must independently determine if the Commissioner applied the correct legal standards in determining that plaintiff was not disabled. “Failure to apply the correct legal standards is grounds for reversal.” Pollard, 377 F.3d at 189 . “Where there are gaps in the administrative record or the ALJ has applied an improper legal standard,” remand to the Commissioner “for further development of the evidence” is appropriate. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (internal quotations omitted); see also Davila-Marrero v. Apfel, 4 Fed.Appx. 45 (2d Cir. 2001) (summary order) (applying same legal standards in SSI case).

B. The ALJ's Duty to Develop the Record

As a threshold matter, the court must determine “[w]hether the ALJ has satisfied [his] duty to develop the record.” Smoker v. Saul, 19-CV-1539 (AT) (JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020). “Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)). The regulations define “complete medical history” to mean, at a minimum, “the records of [a claimant's] medical source(s) covering at least the 12 months preceding the month in which” a claim is filed. 20 C.F.R. §§ 404.1512(b)(ii) (2017), 416.912(b)(1)(ii) (2017). “This duty is present even when a claimant is represented by counsel.” Atkinson v. Barnhart, 87 Fed.Appx. 766, 768 (2d Cir. 2004). “Where there are gaps in the administrative record, remand to the Commissioner for further development of the evidence” is appropriate. Sobolewski v. Apfel, 985 F.Supp. 300, 314 (E.D.N.Y. 1997). “[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a ‘complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa, 168 F.3d at 79 n.5 (citing Perez, 77 F.3d at 48); see also Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013).

Here, the Court finds that there are no obvious gaps in the record. The record consists of extensive medical records, including treatment records and evaluations of his physical and mental impairments, (see generally R. 629-1711); medical opinions from treating physicians, (R. 866-71, 872-75); multiple consultative medical opinions, (R. 135-42, 725-59, 832-36, 837-43); Vocational Expert's testimony, (R. 53, 57-67); Plaintiff's testimony, (R. 51-57, 85-90); and Plaintiff's function report, (R. 490-97, 519-26). These records span from 2014 to 2020, covering more than the required 12 months prior to June 2017. Furthermore, Plaintiff's attorneys were given extra time to produce additional documents and provided no objections to the evidence on any grounds. (R. 47, 79). See Jordan v. Comm'r of Soc. Sec., 142 Fed.Appx. 542, 543 (2d Cir. 2005) (finding that where Plaintiff's counsel volunteered to secure certain records, the ALJ kept the record open to allow counsel to do so, and Plaintiff made no request for the ALJ's assistance in securing additional evidence, the Court “cannot say that the ALJ failed to discharge his duty to develop the record.”). Accordingly, I respectfully recommend finding that the ALJ has fulfilled his duty to develop the record.

C. The ALJ's Consideration of Plaintiff's Anticipated Off-Task Time and Absences

Plaintiff argues that, even without correcting for any other alleged mistakes the ALJ made in his assessment of Plaintiff's disability, the ALJ committed legal error when he failed to consider the amount of time Plaintiff would be off-task or absent from work. (Docket No. 21 at 26-28, Docket No. 26 at 1-4). Plaintiff asserts that “the ALJ should have found Plaintiff would have been off-task more than 5% of the time and/or absent more than one day a month” for five reasons: (1) the ALJ (and Dr. Juriga) determined that Plaintiff experienced various moderate mental limitations, (Docket No. 21 at 27); (2) Dr. Cohen opined that Plaintiff experienced marked limitations, (Docket No. 26 at 2); (3) Dr. Malik opined that Plaintiff would be absent once a month due to his mental impairments, (id. at 2-3); (4) NP Bae opined that Plaintiff would be absent about three times a month due to his physical impairments, (id. at 3); and (5) Plaintiff had a history of hospitalizations, requiring in-patient treatment for more than 25 days between November 2019 and February 2020, (Docket No. 21 at 27, n.11). In short, Plaintiff believes that “[h]ad the ALJ properly considered the evidence, he would have found [P]laintiff to be disabled” for being unable to meet work hour requirements. (Docket No. 26 at 4).

Defendant maintains that the ALJ made no legal error because (1) “no medical source who opined on Plaintiff's mental impairment advised that Plaintiff would miss more than one day of work per month,” and (2) the ALJ considered Plaintiff's hospitalizations in 2019 and 2020 and determined they were not the result of Plaintiff's psychiatric illnesses, instead “the result of psychoactive substance abuse,” noncompliance with medications, and/or malingering. (Docket No. 25 at 31-32).

Failure to consider evidence that Plaintiff would be absent from work or require time off-task can constitute legal error, requiring remand. See Gallagher v. Astrue, No. 10 Civ. 8338(LTS)(AJP), 2012 WL 987505, at *22 (S.D.N.Y. Mar. 22, 2012), report and recommendation adopted, 2012 WL 1339357 (S.D.N.Y. Apr. 17, 2012). However, the ALJ clearly considered such evidence, but “merely declined to include” it in Plaintiff's RFC because he “concluded that such limitations were not supported by the medical record.” Renalda R. v. Comm'r of Soc. Sec., 3:20-cv-00915 (TWD), 2021 WL 4458821, at *11 (N.D.N.Y. Sep. 29, 2021). There is conflicting evidence on this issue in the Record. Dr. Malik opined that Plaintiff would miss work once a month due to his mental impairments, and NP Bae opined that he would miss three days per month due to his physical impairments. (R. 871). In addition, Dr. Cohen opined that Plaintiff experienced “mild limitations in sustaining an ordinary routine and regular work attendance,” (R. 835); Dr. Malik assessed “marked loss” in “maintain[ing] regular attendance and be punctual,” (R. 874); and Dr. Juriga assessed “moderate[] limit[ation]” in “complet[ing] a normal workday or workweek without interruptions psychologically based symptoms,” (R. 141).

When faced with contradicting or ambiguous information, “it is within the ALJ's discretion to resolve genuine conflicts in the evidence, and, in doing so, to ‘choose between properly submitted medical opinions.'” Reithel v. Comm'r of Soc. Sec., 330 F.Supp.3d 904, 912 (W.D.N.Y. 2018) (citing Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)) (quoting Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)). Here, the ALJ found the Record best supported Dr. Juriga's opinion, (see R. 23-26), and as discussed elsewhere, see infra Sections II.D and II.F.1, the ALJ properly considered and assessed the other three medical opinions as unpersuasive. As a result, there was no persuasive medical opinion addressing exactly how much time, if any, Plaintiff would be off-task or absent.

Plaintiff argues that based on the ALJ's own findings and his reliance on Dr. Juriga's assessment, he “should have found that Plaintiff would have been off-task more than 5% of the time and/or absent more than one day a month.” (Docket No. 21 at 27). Such a conclusion is “wholly speculative,” Swanson v. Comm'r of Soc. Sec., No. 1:18-CV-00870 EAW, 2020 WL 362928, at *5 (W.D.N.Y. Jan. 21, 2020) (rejecting Plaintiff's argument that his marked and moderate limitations should translate to an off-task estimate as “wholly speculative” without any medical opinion or other evidence suggesting as much). See also Melisa G. v. Berryhill, No. 3:18-CV-508 (DJS), 2019 WL 2502726, at *5 (N.D.N.Y. June 17, 2019) (upholding ALJ's determination that opinion regarding Plaintiff's need for off-task time was speculative where it was unsupported by the medical record); Freund v. Berryhill, 17-CV-9967 (JPO), 2019 WL 1323992, at *12 (S.D.N.Y. Mar. 25, 2019) (concluding that the ALJ did not err in excluding absenteeism in the RFC where substantial evidence in the record supported the conclusion that the claimant was capable of appearing for work on a regular basis); Lowry v. Comm'r of Soc. Sec., 15-CV-1553, 2017 WL 1290685, at *4-5 (N.D.N.Y. Mar. 16, 2017) (rejecting plaintiff's argument that a moderate limitation in ability to maintain a routine translated to a conclusion that plaintiff would be off-task 20% of the workday or absent more than four days per month).

The ALJ properly considered Dr. Juriga's “moderate” limitations when he incorporated into the RFC “simple, routine tasks that are not at a production pace,” with “no more than frequent interaction with supervisors, co-workers, and the public” and “no more than occasional changes in the work setting.” (R. 18). “There is significant case law indicating that [an] ALJ's limitation of [a p]laintiff to ‘simple, routine tasks' and ‘working primarily alone, with only occasional supervision' accounts for [his] limitations for performing activities within a schedule and maintaining regular attendance.” Shannon v. Berryhill, 6:16-cv-06796 MAT, 2018 WL 6592181, at *3 (W.D.N.Y. Dec. 13, 2018) (collecting cases); see also Matta v. Astrue, 508 Fed.Appx. 53, 55 (2d Cir. 2013) (summary order) (“The ALJ found that [the] plaintiff had moderate difficulties in concentration, persistence and pace and moderate difficulties in social functioning that limit [him] to simple, routine, low-stress, and unskilled tasks, which involve no more than minimal contact with co-workers, supervisors and the general public.”) (internal citations and quotations omitted)).

Furthermore, the fact that Plaintiff was hospitalized for twenty-five days between November 2019 and February 2020 does not compel a conclusion that Plaintiff is unable to work on a regular and continuing basis. In fact, the ALJ determined that Plaintiff's hospitalizations were due to his noncompliance with medications and his psychoactive substance abuse, noting that the providers indicated that “the claimant was likely non-compliant with medication in the lead-up to January 23” and was “seeking assistance from the hospital to acquire new housing.” (R. 20-21) (citing R. 1340). In short, the ALJ did not find Plaintiff's hospitalizations as symptoms or limitations due to his disability.

Accordingly, I respectfully recommend finding that the ALJ did not commit legal error when considering whether Plaintiff would be off-task or absent from work.

D. The ALJ's Consideration of the Psychiatric Medical Opinions

Plaintiff argues that the ALJ erred in finding Dr. Cohen's and Dr. Malik's medical opinions regarding Plaintiff's mental impairments unpersuasive. (Docket No. 21 at 28-32).²²Defendant maintains that the ALJ's decision was correct because the opinions were inconsistent with the medical records. (Docket No. 25 at 30-31).

22 Plaintiff makes the additional argument that because all of the psychiatric expert opinions allegedly supported a finding that Plaintiff was disabled, the ALJ erred in failing to rely on any of the expert opinions. This argument rests on the mistaken belief that Dr. Juriga determined Plaintiff was disabled. In fact, Dr. Juriga concluded that Plaintiff retained the ability to perform simple, unskilled work. (R. 24, 142). Thus, this argument is not further considered by the Court.

When determining whether a claimant is disabled, “an ALJ must consider all medical opinions” received. Manzella v. Comm'r of Soc. Sec., CIVIL ACTION NO. 20 Civ. 3765 (VEC) (SLC), 2021 WL 5910648, at *11 (S.D.N.Y. Oct. 27, 2021), report and recommendation adopted, 2021 WL 5493186 (S.D.N.Y. Nov. 22, 2021). “A medical opinion is a statement from a medical source about what [a claimant] can still do despite [his] impairment[s] and whether [the claimant] ha[s] one or more impairment-related limitations or restrictions in ... [the claimant's] ability to perform [the physical and mental] demands of work activities.” 20 C.F.R. § 404.1513(a)(2) (2017).

On January 18, 2017, the SSA issued comprehensive revisions to the regulations that govern the evaluation of medical opinions for claims filed on or after March 27, 2017. See 82 Fed.Reg. 5,844 (Jan. 18, 2017). The new regulations end the treating physician rule and no longer require the ALJ to “defer or give any specific evidentiary weight, including controlling weight, to any medical opinion[s], . . . including those from [a claimant's] medical sources.” 20 C.F.R. § 404.1520c(a) (2017); see Manzella, 2021 WL 5910648, at *11. Instead, the ALJ must consider all of the medical opinions and determine how persuasive he finds them. See 20 C.F.R. § 404.1520c(b). In conducting this evaluation, the ALJ must consider five factors: (1) supportability, (2) consistency, (3) the medical source's relationship with the claimant, (4) the medical source's specialization, and (5) any “other factors that tend to support or contradict a medical opinion.” Id. § 404.1520c(c)(1)-(5).

The first two factors-supportability and consistency-are the “most important” in determining how persuasive an ALJ finds a medical source's opinions. Id. § 404.1520c(b)(2). As a result, the ALJ must “explain how [she] considered the supportability and consistency factors,” but is not required to explain how she considered the remaining factors. Id. With respect to supportability, the new rule provides that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support . . . 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. § 404.1520c(c)(1). “Simply put, supportability is an inquiry confined to the medical source's own records that focuses on how well a medical source supported and explained their opinion.” Vellone ex rel. Vellone v. Saul, 1:20-cv-00261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021). With respect to consistency, the new regulations provide that the more consistent a medical opinion is with other evidence in the medical record, the more persuasive it will be. 20 C.F.R. § 404.1520c(b)(2). “[C]onsistency is an all-encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record.” Vellone, 2021 WL 319354, at *6.

“If the ALJ fails adequately to explain the supportability or consistency factors, or bases his explanation upon a misreading of the record, remand is required.” Rivera v. Comm'r of Soc. Sec. Admin., 19-CV-4630 (LJL) (BCM), 2020 WL 8167136, at *14 (S.D.N.Y. Dec. 30, 2020), report and recommendation adopted, 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021) (internal quotation and citation omitted). An ALJ is “not required to articulate how [she] considered each medical opinion . . . from one medical source individually.” 20 C.F.R. § 404.1520c(b)(1).

Here, the record included three medical opinions regarding Plaintiff's mental impairments: Dr. Malik, Dr. Cohen, and Dr. Juriga. See supra Section I.C.1. The ALJ found Dr. Juriga's opinion persuasive, but determined Dr. Malik's and Dr. Cohen's opinions were not persuasive because they were inconsistent with the Record. (R. 23-26).

1. Dr. Cohen's Medical Opinion

Plaintiff asserts that because Dr. Cohen's opinion was based on an extensive psychiatric examination of Plaintiff, and because it was supported by other medical opinions and records, the ALJ should have found Dr. Cohen's opinion persuasive, and that this finding would have “rendered Plaintiff disabled per the VE testimony.” (Docket No. 21 at 28-30). Defendant argues that the ALJ only found certain portions of Dr. Cohen's opinion unpersuasive, and that the ALJ explained why those portions were inconsistent with the treatment records. (Docket No. 25 at 2930).

It is clear from the Record that Dr. Cohen and Dr. Juriga are consistent on several aspects of Plaintiff's limitations: Dr. Juriga adopted Dr. Cohen's examination findings, (R. 156), and both agree that Plaintiff was not significantly limited in understanding, remembering, and carrying out short and simple instructions, (R. 154-55, 835), nor in being aware of normal hazards and taking precautions, (R. 156, 835). However, Dr. Cohen strays from Dr. Juriga's opinion in key ways that the ALJ determined made it unpersuasive.

First, the ALJ determined that Dr. Cohen's opinion that Plaintiff had marked limitations in his ability to (1) “understand[], remember[], or apply[] complex directions and instructions;” (2) “sustain[] concentration and perform[] a task at a consistent pace;” and (3) “regulat[e] his emotions, control[] behavior, and maintain[] well-being,” was unpersuasive. (R. 835). With regard to Plaintiff's ability to deal with complex directions and instructions, the ALJ explained that Plaintiff “exhibit[ed] normal funds of knowledge, normal recent and remote memory functioning, . . . [an ability] to calculate[, and] intact/fair judgment and insight.” (R. 24). The Record contained evidence that Plaintiff was “cooperative,” “focused,” and “able to calculate,” had a “fund of knowledge” and vocabulary that were all within normal limits, was “aware of problems [and] roles,” and could “understand facts, draw[] conclusion[s], and problem solv[e].” (See, e.g., R. 916, 927, 991, 1047). Because Plaintiff was not consistent in these areas-at times exhibiting uncooperative and aggressive behavior, (R. 1043), or “flight of ideas” thought process, (R. 1039, 1684)-the ALJ did not find Plaintiff “not limited” in this ability, but rather agreed with Dr. Juriga that such abilities were better described as “moderately limited.” (R. 155).

Similarly, the ALJ explained that Plaintiff's medical records showed that he maintained “intact attention and concentration.” (R. 24).²³ The Record showed that Plaintiff was able to “attend [and] concentrate” to issues at hand, whether it was a calculation, (R. 916, 1047) or questions asked in an interview, (R. 1009, 1012). In addition, the Disability Report did not indicate that Plaintiff had difficulty with “concentration.” (R. 468). The Record further shows that Plaintiff's ability to concentrate was generally “fair” and “within normal limits.” (R. 1109, 1133, 1256). Therefore, the ALJ determined that Plaintiff's abilities were more consistent with Dr. Juriga's “moderately limited” finding than Dr. Cohen's “marked limitation” conclusion. (R. 155, 835).

23 The Court notes that in his decision, the ALJ included a summary of Dr. Cohen's findings and a brief analysis of the medical records to explain the supportability and inconsistency of Dr. Cohen's opinion. (R. 23-24). Notably, in his summary of the abilities for which Dr. Cohen found no limitations, the ALJ incorrectly included Plaintiff's ability to “sustain concentration and perform a task at a consistent pace” (hereinafter, the “concentration and consistent pace ability”). (R. 23). In fact, Dr. Cohen had categorized this as a “marked limitation.” (Id.). Based on the ALJ's analyses and explanations, it is apparent that this was a typographical mistake and not reflective of the ALJ's understanding of the facts. First, although the ALJ included the concentration and pace ability in the list of “no limitations,” he also correctly listed it in the list of “marked limitations.” (Id.). Unlike the other lists, the marked limitations were written in an order different from Dr. Cohen's list, naming Plaintiff's “concentration and pace ability” before “understanding, remembering, or applying complex directions and instructions.” (Compare R. 23 with R. 835). This strongly suggests that the ALJ was aware of this particular ability being in the “marked limitations” category. Second, one key difference between Dr. Juriga's and Dr. Cohen's opinions was the categorization of Plaintiff's concentration and pace ability as “moderate” rather than “marked,” and the ALJ specifically explained that Dr. Cohen's opinion that Plaintiff suffered a marked limitations was “inconsistent with the [Record].” (R. 24).

As for Plaintiff's ability to regulate his emotions, control behavior, and maintain wellbeing, Dr. Juriga did not opine directly on this ability, but she did opine that Plaintiff's ability to “interact appropriately with the general public,” to “accept instructions and respond appropriately to criticism,” and to “maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness” was “not significantly limited.” (R. 155). Moreover, the Record indicates that Plaintiff's psychological symptoms were “stable with medication” (R. 23), and that he was “working out, running, boxing, lifting weights, and working part-time as a boxing trainer,” (R. 24). Therefore, there is substantial evidence in the Record to support finding that Dr. Cohen's opinion that Plaintiff suffered “marked limitations” was too restrictive.

Second, the ALJ also found that Dr. Cohen's opinion that Plaintiff's symptoms would “significantly interfere” with his ability to function was inconsistent with the evidence in Record. (R. 24). For much the same reasons as cited above, the ALJ found that Plaintiff's “reported activities [were] consistent with an individual that can still function at a high level.” (Id.) (internal citations omitted). Again, Dr. Cohen's opinion is supported by substantial evidence. (See, e.g., R. 636, 765, 880, 1340).

In short, the ALJ found Dr. Juriga's opinion persuasive and Dr. Cohen's opinion unpersuasive because the limitations opined by Dr. Cohen were too restrictive, given the evidence in the Record. Accordingly, I respectfully recommend finding that the ALJ's determination regarding Dr. Cohen's medical opinion is supported by substantial evidence.

2. Dr. Malik's Medical Opinion

Plaintiff maintains that the ALJ also erred when he found Dr. Malik's opinion to be unpersuasive. (Docket No. 21 at 30). Plaintiff describes Dr. Malik as his treating mental health provider, and argues that his opinion is consistent with other expert opinions and the Record. (Id.) (Id.). Defendant counters that the ALJ accurately found Dr. Malik's opinion inconsistent with the Record. (Docket No. 25 at 31). Defendant also highlights that Dr. Malik said in his opinion that Plaintiff's assessed limitations dated back to 2004, but he had only met Plaintiff for the first time in February 2019, the date he filled out the form. (Id.).

First, the ALJ correctly noted that Dr. Malik's opinion-which was filled out after meeting the Plaintiff just once-was not supported by the treatment records. The Record noted Plaintiff's stable psychological symptoms with medication, lack of suicidal ideations, lack of depressive symptoms, changes in sleep habits, and changes in thought content. (R. 25). Furthermore, there is substantial evidence during the Eligibility Period that shows Plaintiff was “stable” while on medication, (see, e.g., R. 914, 930, 1045, 1355); did not have suicidal ideation, (see, e.g., R. 729, 743, 837, 916); and reported no depressive symptoms, sleeping symptoms, or changes in thought content, (see, e.g., R. 687, 1232). Therefore, the limitations in Dr. Malik's opinion are not consistent with these records.

Second, the ALJ found it significant that Dr. Malik opined that Plaintiff had “marked” and “extreme” limitations and symptoms dating back to 2004 when he had only met him in February 2019. (R. 25). This opinion was made after just one meeting, (R. 20), and despite the fact that Plaintiff continued to work at substantial gainful activity until 2010. (R. 462). Moreover, the ALJ explained that he found Dr. Malik's opinion unpersuasive, “where Dr. Malik relied on Plaintiff's subjective complaints.” (R. 26). This is especially compelling because it is clear from the Record that Plaintiff is not a reliable source. As Dr. Malik, himself, noted in the questionnaire, Plaintiff exaggerated his symptoms. (R. 1060). Furthermore, Plaintiff's statement to the ED doctor that he had not abused drugs since 1988, was contradicted by a review of Plaintiff's chart and PSYCKES (Psychiatric Services and Clinical Knowledge Enhancement System), which showed two in-patient admissions for substance abuse in 2018. (R. 1662). Dr. Lopez also noted in the treatment notes in May 2017 that Plaintiff's denial of drug use was “not reliable.” (R. 989).

Accordingly, I respectfully recommend finding that the ALJ's analysis of Dr. Malik's medical opinion is supported by substantial evidence.

E. The ALJ's Consideration of “Paragraph B” Criteria in RFC Assessment

Plaintiff argues that the ALJ did not properly consider the “Paragraph B” Criteria of Listings 12.03, 12.04, 12.06, and 12.15 when determining Plaintiff's RFC. (Docket No. 21 at 32). Namely, Plaintiff argues that although the ALJ found Plaintiff had moderate limitations in “concentrat[ing], persist[ing], and maintain[ing] pace” at steps two and three, the ALJ only addressed Plaintiff's moderate limitation in “maintaining pace” in determining his RFC, and failed to address altogether his “moderate limitations in concentration and persistence.” (Id.) (citing R. 16-17). Plaintiff also alleges a similar error when the ALJ recognized Plaintiff's moderate limitations in “adapting and managing oneself” at steps two and three, but provided “almost no accommodation for his finding that Plaintiff had moderate limitations in adapting and managing oneself except for occasional changes in the work setting.” (Id. at 33). Defendant maintains that the RFC is supported by substantial evidence because the ALJ's findings of moderate limitations were consistent with an RFC for unskilled work. (Docket No. 25 at 27-28).

First, “to the extent Plaintiff contends that the ALJ was required to expressly include the moderate limitations (in concentration, persistence and pace) identified at Step 3 in the RFC determination, such argument lacks merit because the ALJ's findings at step 3 of the sequential analysis are not an RFC determination.” Pidgeon v. Comm'r of Soc. Sec., 15-CV-6578 (CJS), 2017 WL 4680412, at *7 (W.D.N.Y. Oct. 18, 2017). Alternatively, to the extent Plaintiff is arguing that the ALJ should have “explicitly incorporate[d] any limitations in concentration, persistence, and pace” in the hypothetical given to the VE, (Docket No. 21 at 32), this argument too is misplaced. Where the Court can discern that the ALJ's hypothetical implicitly accounted for Plaintiff's limitations in concentration, persistence, and pace, any failure to specifically incorporate limitations in concentration, persistence, and pace is harmless error. McIntyre, 758 F.3d at 152 (finding the ALJ's failure to specifically address “concentration, persistence, and pace” harmless error where the “medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace,” and the challenged hypothetical was limited “to include only unskilled work.”). Therefore, if the Court finds upon its review that the ALJ adopted limitations that show that he implicitly considered and accounted for Plaintiff's moderate limitations in “concentration, persistence, and pace,” remand is not warranted.

Here, ALJ Suna explicitly limited the hypothetical question to “simple, routine tasks that are not at a production rate pace” with “no more than frequent interaction with supervisors, coworkers, and the public.” (R. 18). Courts in this Circuit have found that an ALJ limiting a hypothetical question to “simple, routine tasks,” after fully explaining Plaintiff's physical restrictions, sufficiently accounted for “the combined effect of [the claimant's] impairments.” McIntyre, 758 F.3d at 152; see also Villalobo v. Saul, 19 Civ. 11560 (CS)(JCM), 2021 WL 830034, at *16 (S.D.N.Y. Feb. 9, 2021) (finding that RFC restrictions to “simple, routine tasks” with “only occasional supervision” accounts for mild to moderate limitations in attention and performing within a schedule); Kya M. v. Comm'r of Soc. Sec., 506 F.Supp.3d 159, 166 (W.D.N.Y. 2020) (“[A]n RFC limiting a claimant to simple, routine tasks address[] limitations in concentration, persistence, and pace.”); c.f. Ferreras-Matos v. Comm'r of Soc. Sec., 20 Civ. 07106 (NSR)(JCM), 2021 WL 7287640, at *17 (S.D.N.Y. Nov. 15, 2021), report and recommendation adopted, 2022 WL292921 (S.D.N.Y. Jan. 31, 2022) (finding that a hypothetical including only physical limitations did not implicitly account in any way for limitations in concentration, persistence, and pace).

Moreover, the ALJ's RFC assessment is supported by substantial evidence in the Record. “[M]ental status examinations showed that [Plaintiff] exhibited . . . intact attention and concentration,” (R. 21-22), and Plaintiff's daily activities-including “spending his days going to group [therapy] four times a week, and . . . socializ[ing] with fellow program members after their group sessions end-showed an ability to “pay attention, complete tasks, remember, . . .and appropriately handle stress,” (R. 17). The ALJ also clearly relied on Dr. Juriga's opinion, which opined that despite moderate limitations, medical evidence supported the conclusion that Plaintiff retained a mental capacity for simple, unskilled work. (R. 142). The ALJ's RFC determination is, therefore, supported by substantial evidence.

Plaintiff's second argument regarding his moderate limitation in “adapting or managing oneself” is equally unavailing. The ALJ supported his RFC assessment with substantial evidence and cited to Plaintiff's daily activities and Dr. Juriga's opinion, among other parts of the Record, (see R. 18-24), to support his assessment that Plaintiff should be limited to “simple, routine tasks,” and could “tolerate no more than occasional changes in the work setting” and “no more than frequent interaction with supervisors, co-workers, and the public.” (R. 18). The ALJ further demonstrated appropriate application of the PRT and the RFC assessment, supporting his analysis with sufficient and reasonable explanation, and Plaintiff has not explained how the ALJ's RFC limitation fails to properly account for his non-exertional limitations.

Accordingly, I respectfully recommend finding the ALJ properly considered “Paragraph B” factors in the RFC assessment.

F. The ALJ's Assessment of the RFC

Plaintiff argues that the ALJ erred in finding Plaintiff had the RFC to perform light work, contending that had the ALJ properly found Plaintiff's RFC as sedentary work, then Plaintiff would have been disabled according to medical-vocational guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2.²⁴ (Docket No. 21 at 34). Plaintiff asserts that the ALJ's error stemmed from failing to properly evaluate NP Bae's opinion, improperly dismissing Plaintiff's medical need for a cane, failing to exclude all exposure to respiratory irritants, and overlooking relevant portions of the medical record that support Plaintiff's RFC as sedentary. (Id. at 34-38).

24 The medical-vocational guidelines (hereinafter “the Grids”) are used to determine whether a claimant is disabled using factors that include the Plaintiff's RFC, age, education, and work experience. See Zorilla v. Chater, 915 F.Supp. 662, 667 (S.D.N.Y. 1996). If the factors line up exactly with the Grids, “the ALJ may rely exclusively on the Grid[s] in order to determine whether [Plaintiff] retains the RFC to perform some work other than [his] past work,” and therefore, whether Plaintiff is disabled. Norman v. Astrue, 912 F.Supp.2d 33, 72 (S.D.N.Y. 2012). However, because the Grid does not account for “significant nonexertional impairments,” where applicable, VE testimony must be taken “to conclude that jobs exist in the national economy that [Plaintiff] is capable of performing.” Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004). Nonexertional impairments include psychological impairments, such as anxiety and depression. See 8 C.F.R. § 404.1569a(c)(1)(i).

Defendant maintains that the ALJ's RFC was supported by medical opinions and substantial medical evidence in the Record. (Docket No. 25 at 33-35). In particular, Defendant argues that NP Bae's opinion was inconsistent with the evidence, which showed Plaintiff's abilities and daily activities surpassed the limitations opined by NP Bae. (Id. at 35-36). Defendant also argues that Plaintiff's alleged medical need for ambulatory assistance was undermined by a long history of treatment records showing no need for an assistive device. (Id. at 36). Finally, Defendant contends that Plaintiff's alleged need to avoid all respiratory irritants more than occasionally was inconsistent with the evidence, which clearly showed that Plaintiff's asthma was “well controlled.” (Id. at 35).

1. NP Bae's Medical Opinion

Plaintiff argues that the ALJ erred in evaluating NP Bae's medical opinion by finding it unpersuasive despite being consistent with Dr. McLean Long's persuasive medical opinion. (Docket No. 21 at 37). Defendant argues that Plaintiff misapplies the old Treating Physician's Rule to this case, and that the ALJ properly explained why NP Bae's opinion was too restrictive and inconsistent with the Record. (Docket No. 25 at 35-36).

As described fully earlier, see Section II.D., the ALJ must consider all medical opinions to determine Plaintiff's RFC, and in determining the persuasiveness of the medical opinion, he must explain his assessment of its supportability and consistency. If the ALJ follows the regulations and applies the correct legal standards, the ALJ's factual determination of the persuasiveness of a medical opinion is conclusive so long as it is supported by substantial evidence. See 42 U.S.C. § 405(g). In other words, Plaintiff must “show that no reasonable factfinder could have reached the ALJ's conclusions based on the evidence in the record.” Z.J.F. ex rel. Conkling v. Comm'r of Soc. Sec., 6:16-CV-1397 (WBC), 2018 WL 1115516, at *6 (N.D.N.Y. Feb. 27, 2018).

Here, “[P]laintiff has failed to identify a legal error in the ALJ's analysis.” See Nedzad O. v. Comm'r of Soc. Sec., 6:20-CV-1131, 2021 WL 6015004, at *7 (N.D.N.Y. Dec. 21, 2021). Plaintiff essentially argues that Dr. McLean Long's physical assessment of Plaintiff-including descriptions of Plaintiff's gait and ability to support himself in various ways-support NP Bae's opinion. It is not enough, however, for Plaintiff to merely disagree with the ALJ's weighing of the evidence. Pulos v. Comm'r of Soc. Sec., 346 F.Supp.3d 352, 362 (W.D.N.Y. 2018) (“The fact that the ALJ did not draw the conclusions from this evidence that Plaintiff thinks he should have is no basis for remand.”).

In his decision, ALJ Suna explained his reasoning that supported the conclusions he made about the medical opinions and Plaintiff's limitations. (R. 29-30). NP Bae's opinion regarding Plaintiff's limitations in walking, standing, and sitting were found to be inconsistent and overly restrictive with the Record, which consistently noted no stiffness, pain, or tenderness in his cervical spine, (see, e.g., R. 636, 653, 685, 964); normal strength, intact sensation, normal tone, normal heel/shin testing (R. 681), normal gait and intact neurological findings (see, e.g., R. 878, 946, 989-90, 1657), and negative musculoskeletal and neurological findings, (see, e.g., R. 989, 1018, 1200, 1218). The ALJ emphasized that he found NP Bae's opinions regarding Plaintiff's ability to walk to be particularly inconsistent with Plaintiff's reported activities of boxing, lifting weights, running, and working as a boxing trainer. (R. 30) (citing R. 636, 765, 890, 946, 1114, 1142, 1220). Plaintiff does not agree with how the ALJ weighed the evidence, but that is not enough to warrant remand.

That fact that the ALJ repeatedly recited his factual findings and citations as part of his written explanation does not undermine the breadth and quality of his analysis and conclusion. An ALJ's overreliance on a handful of pages in the Record to support all his conclusions may be grounds for remand due to improper cherry-picking of the facts, see, e.g., Hartnett v. Apfel, 21 F.Supp.2d 217, 223 (E.D.N.Y. 1998), but cherry-picking is not an issue in this case. Although the ALJ used some of the same citations in support of each determination, his reasoning and citations to the Record exhibited a thorough and comprehensive understanding of the facts. Moreover, the ALJ tailored his explanation to address each substantive issue raised in the case. (See, e.g., R. 30 (adding additional sentence about inconsistencies regarding medical need for cane)).

Accordingly, the ALJ has met the requirements of the regulations, and I respectfully recommend finding that the ALJ did not err in concluding that NP Bae's opinion was unpersuasive.

2. Medical Need for Ambulatory Assistive Device

Plaintiff argues that the ALJ erred in finding that “the objective evidence [did] not support the use of an assistive handheld device,” (R. 27), because two medical opinions noted a medical need for a walking cane, and no other expert found otherwise. (Docket No. 21 at 37). Defendant counters that the ALJ properly found these opinions were unpersuasive “because they were inconsistent with the evidence as a whole.” (Docket No. 25 at 36).

“[O]nce an ALJ finds facts, [the Court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (emphasis in the original) (internal quotations omitted). Even if there is contradictory evidence, the Court must defer “to the Commissioner's resolution of conflicting evidence.” Cage, 692 F.3d at 122 (citation omitted). The Record contains evidence that support both Plaintiff's contention that he used a cane and Defendant's contention that Plaintiff did not medically need one. Plaintiff appeared at both of his hearings with a cane, (R. 48, 87), and he testified that he was prescribed a cane in 2016 or 2017 and he used it every day, (R. 87). On the other hand, as the ALJ noted in his decision, there are medical records from the Eligibility Period that show “normal gait” and no use of an assistive device. (Docket No. 25 at 36) (citing R. 88, 949, 952, 964). Moreover, upon review of the record, the Court finds that Plaintiff was prescribed a walker for only thirty days, (R. 949, 951), and NP Bae's medical opinion did not note any sensory changes, joint instability, muscle weakness, muscle atrophy or abnormal gait as objective signs of Plaintiff's impairment, (R. 866). In addition, other St. Barnabas records had marked “no” when asked if Plaintiff experienced impaired mobility, indicating that he did not “ambulate or transfer with assistive devices” or was otherwise “unable to ambulate or transfer.” (R. 888). Although the ALJ did not mention these specific citations in his decision, “[a]n ALJ need not recite every piece of evidence that contributed to his decision, so long as the record permits the reviewing court to glean the rationale of an ALJ's decision.” Pulos, 346 F.Supp.3d at 361 (internal quotations and citations omitted).

Accordingly, I respectfully recommend finding that this determination was within the ALJ's discretion, was not a legal error, and is supported by substantial evidence.

3. Exposure to Respiratory Irritants

Plaintiff argues that the ALJ improperly modified medical opinions that Plaintiff should “avoid smoke, dust, or other known respiratory irritants secondary to asthma,” (R. 841), by adding “occasional” to his RFC determination such that Plaintiff was limited to “occasional exposure to dust, odors, fumes, and pulmonary irritants,” (R. 18). (Docket No. 21 at 37-38).

As discussed above, the ALJ is tasked with deciding a claimant's RFC based on his review of the record as a whole, and the RFC need not correspond exactly to an opinion from any one medical source. Matta, 508 Fed.Appx. at 56. Although Dr. McLean Long advised that Plaintiff should avoid certain respiratory irritants, (R. 841), Dr. Ahmed opined that Plaintiff should avoid concentrated but not all exposure to certain environmental triggers, (R. 139), and treatment notes repeatedly found that Plaintiff had good air entry bilaterally and his lungs were clear, (see, e.g., R. 636, 666, 685, 952, 1195, 1206), and Plaintiff's asthma was well controlled. (see, e.g., R. 964, 1143, 1194, 1206). The Record, therefore, supports the ALJ's findings regarding Plaintiff's limitation to “occasional exposure to dust, odors, fumes, and pulmonary irritants.” (R. 18).

Accordingly, I respectfully recommend finding that this determination was within the ALJ's discretion, supported by substantial evidence, and therefore not legal error.

4. Substantial Evidence Supporting Sedentary RFC

Plaintiff argues that there is substantial evidence to support sedentary work. (Docket No. 21 at 38). Defendant counters there is substantial evidence to support the ALJ's finding of light work with additional limitations. (Docket No. 25 at 34-35). Plaintiff cites material that supports sedentary work, but “[i]f the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even where substantial evidence supporting the claimant's position also exists.” Devora v. Barnhart, 205 F.Supp.2d 164, 171-72 (S.D.N.Y. 2002). For the reasons set forth herein, there is substantial evidence to support the ALJ's RFC finding of light work with additional limitations. Accordingly, I respectfully recommend finding that the ALJ's decision was supported by substantial evidence.

III. CONCLUSION

For the foregoing reasons, the Court concludes and respectfully recommends denying Plaintiff's motion for judgment on the pleadings and granting the Commissioner's cross-motion for judgment on the pleadings.

IV. NOTICE

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed.R.Civ.P. 6(a) and (d) (rules for computing time). A party may respond to another party's objections within fourteen (14) days after being served with a copy. See Fed.R.Civ.P. 72(b)(2). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Cathy Seibel at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.

Requests for extensions of time to file objections must be made to the Honorable Cathy Seibel and not to the undersigned. Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).

SO ORDERED.