Ross v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
BRISELIDA R.,
Plaintiff,
v. 	5:25-CV-00210
(MAD/PJE)
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
HILLER COMERFORD INJURY 	JUSTIN GOLDSTEIN, ESQ.
& DISABILITY LAW
Attorney for Plaintiff
6000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
SOCIAL SECURITY ADMINISTRATION 	LUIS PERE, ESQ.
OFFICE OF GENERAL COUNSEL
Attorney for Defendant
6401 Security Boulevard
Baltimore, Maryland 21235
PAUL J. EVANGELISTA
United States Magistrate Judge
REPORT- RECOMMENDATION & ORDER1
Briselida R.2 (“Plaintiff”) brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) seeking review of a decision by the Commissioner of the Social Security
Administration (“the Commissioner”) denying his application for disability insurance benefits
1 This matter was referred to the undersigned for Report-Recommendation in accordance with General Order 18 and
N.D.N.Y. L.R. 72.3(e).
2 In accordance with guidance from the Committee on Court Administration and Case Management of the Judicial
Conference of the United States, which was adopted by the Northern District of New York in 2018 to better protect
personal and medical information of non-governmental parties, this Report-Recommendation and Order will identify
plaintiff’s last name by initial only.
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(“DIB”) for lack of disability. See Dkt. No. 1. Plaintiff moves for the Commissioner’s decision
to be vacated and remanded for further proceedings. See Dkt. No. 1. The Commissioner moves
for the decision to be affirmed. See Dkt. No. 16.3 Plaintiff filed a reply. See Dkt. No. 17. For
the following reasons, it is recommended that Plaintiff’s motion be denied, and the
Commissioner’s motion be granted.
I. 	Background
On September 22, 2020, Plaintiff filed a Title II application for a period of disability and
DIB benefits, alleging a disability onset date of July 28, 2020. See T. at 204-10 (See Dkt. No. 8-
5).4 On November 12, 2020, the Social Security Administration (“SSA”) denied Plaintiff’s
claim. See T. at 60-78 (See Dkt. No. 8-3). Plaintiff sought reconsideration, which the SSA denied
on January 14, 2021. T. at 80-99 (See Dkt. No. 8-3). Plaintiff appealed and requested a hearing.
See T. at 134-35 (See Dkt. No. 8-4). On May 28, 2021, a hearing was held before Administrative
Law Judge (“ALJ”) Jeremy Eldred. See T. at 26-54 (See Dkt. No. 8-2). On June 30, 2021, the
ALJ issued an unfavorable decision. See T. at 11-21. On October 4, 2022, the Appeals Council
affirmed the ALJ’s determination, and the decision became final. See T. at 1-7 (See Dkt. No. 8-
2).
Plaintiff timely commenced an action in this Court, appealing the Commissioner’s June
30, 2021, decision. T. 817-47 (See Dkt. No. 8-9). On November 20, 2023, United States
Magistrate Judge Miroslav Lovric recommended that the Commissioner’s decision be reversed
and remanded. See T. 848-70 (See Dkt. No. 8-9). On February 8, 2024, United States District
3 This matter has been treated in accordance with General Order 18. Under that General Order, once issue has been
joined, an action such as this is considered procedurally as if cross-motions for judgement on the pleadings have
been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
4 “T.” followed by a number refers to the pages of the administrative transcript. See Dkt. No. 8. Citations to the
administrative transcript refer to the pagination in the bottom, right-hand corner of the page. Citations to the parties’
briefs refers to the pagination generated by the Court’s electronic filing and case management program, located at
the header of each page.
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Judge Fredrick J. Scullin, Jr. accepted and adopted Judge Lovric’s Report-Recommendation. See
T. at 871-73 (See Dkt. No. 8-9). On April 22, 2024, the Appeals Council remanded Plaintiff’s
claims to the ALJ. See T. at 878. On October 4, 2024, another hearing was held before ALJ
Jeremy Eldred. See T. at 777-89 (See Dkt. No. 8-8). On November 4, 2024, the ALJ issued an
unfavorable decision. See T. 754-68 (See Dkt. No. 8-8). Plaintiff timely commenced the instant
action on February 13, 2025. See Dkt. No. 1
II. 	Legal Standards
A. 	Standard of Review
“In reviewing a final decision of the Commissioner, a district court may not determine de
novo whether an individual is disabled.” Joseph J. B. v. Comm’r of Soc. Sec., No. 1:23-CV-652
(BKS/CFH), 2024 WL 4217371, at *1 (N.D.N.Y. Aug. 29, 2024), report and recommendation
adopted, No. 1:23-CV-652 (BKS/CFH), 2024 WL 4216048 (N.D.N.Y. Sept. 17, 2024) (citing 42
U.S.C. §§ 405(g), 1388(c)(3)); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d
856, 860 (2d Cir. 1990). “Rather, the Commissioner’s determination will only be reversed if the
correct legal standards were not applied, or it was not supported by substantial evidence.” Id.
(citing Johnson v. Bowen, 817 F.2d 983, 985-86 (2d Cir. 1987)); see also Berry v. Schweiker,
675 F.2d 464, 467 (2d Cir. 1982). “Substantial evidence is ‘more than a mere scintilla,’ meaning
that in the record one can find ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Id. (quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.
2004) (per curiam) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “The substantial
evidence standard is a very deferential standard of review . . . [This] means once an ALJ finds
facts, we can reject [them] only if a reasonable factfinder would have to conclude otherwise.” Id.
(quoting Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam))
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(internal quotation marks omitted). “Where there is reasonable doubt as to whether the
Commissioner applied the proper legal standards, the decision should not be affirmed even
though the ultimate conclusion is arguably supported by substantial evidence.” Id. (citing
Martone v. Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986)).
“However, if the correct legal standards were applied and the ALJ’s finding is supported by
substantial evidence, such finding must be sustained ‘even where substantial evidence may
support the plaintiff’s position and despite that the court’s independent analysis of the evidence
may differ from the [Commissioner’s].’” Id. (quoting Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992)).
B. 	Determination of Disability
“Every individual who is under a disability shall be entitled to a disability . . . benefit
. . . .” 42 U.S.C. § 423(a)(1)(E). Disability is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment . . .
which has lasted or can be expected to last for a continuous period of not less than 12 months[.]”
Id. § 423(d)(1)(A). “A medically-determinable impairment is an affliction that is so severe that it
renders an individual unable to continue with his or her previous work or any other employment
that may be available to him or her based upon age, education, and work experience.” Joseph J.
B., 2024 WL 4217371, at *2 (citing 42 U.S.C. § 423(d)(2)(A)). “Such an impairment must be
supported by ‘medically acceptable clinical and laboratory diagnostic techniques.’” Id. (citing 42
U.S.C. § 423(d)(3)). “Additionally, the severity of the impairment is ‘based on objective medical
facts, diagnoses[,] or medical opinions inferable from [the] facts, subjective complaints of pain
or disability, and educational background, age, and work experience.’” Id. (quoting Ventura v.
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Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing
Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. § 404.1520, to
determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is currently engaged in
substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits his [or her] physical or mental
ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an impairment, the
[Commissioner] will consider him [or her] disabled without considering
vocational factors such as age, education, and work experience; the
[Commissioner] presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth inquiry is
whether, despite the claimant’s severe impairment, he [or she] has the residual
functional capacity to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past work, the
[Commissioner] then determines whether there is other work which the claimant
could perform. . . .
Berry, 675 F.2d at 467 (spacing added). “If at any step a finding of disability or non-disability
can be made, the SSA will not review the claim further.” Joseph J. B., 2024 WL 4217371, at *2
(quoting Barnhart v. Thomas, 540 U.S. 20, 24 (2003)). “The plaintiff bears the initial burden of
proof to establish each of the first four steps.” Id. (citing DeChirico v. Callahan, 134 F.3d 1177,
1180 (2d Cir. 1998) (citing Berry, 675 F.2d at 467)). “If the inquiry progresses to the fifth step,
the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful
employment somewhere.” Id. (citing DeChirico, 134 F.3d at 1180 (citing Berry, 675 F.2d at
467)).
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III. 	The ALJ’s Decision
Applying the five-step sequential evaluation, the ALJ first determined that Plaintiff had
“not engaged in substantial gainful activity since July 28, 2020, the alleged onset date of
disability.” T. at 756 (See Dkt. No. 8-8). At step two, the ALJ found that Plaintiff “has the
following ‘severe’ impairments: degenerative changes of the lumbar spine, degenerative changes
of the cervical spine, degenerative joint disease, plantar fascial fibromatosis of the right foot, a
history of thyroid cancer with hypothyroidism, obesity, schizoaffective disorder, major
depressive disorder with psychotic features, posttraumatic stress disorder, and cannabis use
disorder.” T. 756-57 (See Dkt. No. 8-8). At step three, the ALJ determined that Plaintiff “does
not have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” T. at 757
(See Dkt. No. 8-8).
Before reaching step four, the ALJ concluded that Plaintiff retained the residual
functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except she
can stand/or walk for a total of four hours in an eight-hour workday; can balance
frequently; can climb, stoop, kneel, crouch, or crawl occasionally; can reach
overhead occasionally; can understand, remember, and carry out simple and routine
instructions; can use judgment to make simple work-related decisions; can interact
occasionally with supervisors, co-workers, or the public; and can appropriately
adapt to ordinary changes in a routine work setting.
T. 759-60 (See Dkt. No. 8-8).5 At step four, the ALJ determined that Plaintiff “is unable to
perform any past relevant work.” T. at 766 (See Dkt. No. 8-8). At step five, the ALJ determined
5 Light work is defined as:
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to
10 pounds. Even though the weight lifted may be very little, a job in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with some pushing
and pulling of arm of leg controls. To be considered capable of performing a full or wide range of
light work, you must have the ability to do substantially all of these activities. If someone can do
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that “[c]onsidering the claimant’s age, education, work experience and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform.” Id. (See Dkt. No. 8-8). The ALJ concluded that Plaintiff “has not been
under a disability, as defined in the Social Security Act, from July 28, 2020, through the date of
this decision.” T. at 767 (See Dkt. No. 8-8)
IV. 	Discussion
A. 	Arguments
Plaintiff argues that the ALJ failed to comply with the Appeals Council remand order
because he erred in his evaluation of the medical opinions and prior administrative medical
findings (“PAMF”). See Dkt. No. 12 at 11-13. More specifically, Plaintiff argues that the ALJ:
(1) “failed to explain how the cited evidence undermine[s] the limitations contained in the
opinions” of NP Usev and Ms. Alberts; and (2) provided “only a conclusory analysis” of the
PAMFs of Drs. Hoffman, Scherer, Penny, and Dr. Grassl’s consultative examination. Id. at 13-
27. Plaintiff argues that the ALJ’s RFC determination is not supported by substantial evidence
due to these errors. See id. at 13.
The Commissioner argues that the ALJ’s determination should be affirmed. See generally
Dkt. No. 16. Further, the Commissioner maintains that the ALJ complied with the prior remand
order and properly evaluated the medical opinion evidence and prior administrative medical
findings. See id. at 7-15.
B. 	Applicable Legal Standards
light work, we determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
20 C.F.R.§§ 404.1567(b); 416.967(b)
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“RFC describes what a claimant is capable of doing despite his or her impairments,
considering all relevant evidence, which consists of physical limitations, symptoms, and other
limitations beyond the symptoms.” Joseph J. B., 2024 WL 4217371, at *8 (quoting Malcolm M.
v. Comm’r of Soc. Sec., No. 1:17-CV-986 (CFH), 2019 WL 187725, at *4 (N.D.N.Y. Jan. 14,
2019) (first citing Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999), then citing 20
C.F.R. §§ 404.1545, 416.945)). “[A]n RFC finding is administrative in nature, not medical, and
its determination is within the province of the ALJ.” Id. (quoting Curry v. Comm’r of Soc. Sec.,
855 F. App’x 46, 48 n.3 (2d Cir. 2021) (summary order) (citing 20 C.F.R. § 404.1527(d)(2))).
“In assessing RFC, the ALJ’s findings must specify the functions plaintiff is capable of
performing; conclusory statements regarding plaintiff’s capabilities are not sufficient.” Id.
(quoting Martone, 70 F. Supp. 2d at 150 (citations omitted)).
“In making the RFC determination, the ALJ must consider all relevant medical and other
evidence, including any statements about what the claimant can still do provided by any medical
sources.” Joseph J. B., 2024 WL 4217371, at *8 (citing 20 C.F.R. §§ 404.1545(a)(3),
404.1546(c)). “[T]he ALJ’s conclusion [need] not perfectly correspond with any of the opinions
of medical sources cited in his [or her] decision, [and] he [or she i]s entitled to weigh all of the
evidence available to make an RFC finding that [i]s consistent with the record as a whole.” Id.
(quoting Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (summary order)). “The Court
‘defer[s] to the Commissioner’s resolution of conflicting evidence[.]’” Id. (quoting Smith v.
Berryhill, 740 F. App’x 721, 726 (2d Cir. 2018) (summary order) (internal citation omitted)).
“Therefore, even if a plaintiff disagrees with the ALJ’s assessment of opinion evidence and can
point to evidence in the record to support his or her position, whether there is substantial
evidence supporting the [plaintiff’s] view is not the question; rather, [the Court] must decide
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whether substantial evidence supports the ALJ’s decision.” Id. (quoting Elizabeth P. v. Comm’r
of Soc. Sec., No. 3:20-CV-891 (CFH), 2022 WL 507367, at *4 (N.D.N.Y. Feb. 18, 2022))
(internal quotation marks and citation omitted). “The ALJ must not ignore evidence or cherry
pick only the evidence from medical sources that support a particular conclusion and ignore the
contrary evidence, but [t]he Court will not reweigh the evidence that was before the ALJ.” Id.
(quoting April B. v. Saul, No. 8:18-CV-682 (DJS), 2019 WL 4736243, at *6 (N.D.N.Y. Sept. 27,
2019) (internal quotation marks and citations omitted)).
Under the current standard, an ALJ need “not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) or prior administrative medical
finding(s) [‘PAMFs’], including those from [a claimant’s] medical sources.” 20 C.F.R. §
416.920c(a) (internal citation omitted). Rather, medical opinions and PAMFs are evaluated
based on their “persuasiveness.” Id. In evaluating the “persuasiveness” of a medical opinion or
PAMF, an ALJ is to “consider” the following factors: (1) supportability; (2) consistency; (3)
relationship with the claimant; (4) specialization; and (5) “other factors.” Id. §§ 416.920c(a);
416.920c(c)(1)-(5). “However, in many cases, the ALJ only need ‘explain’ how the
supportability and consistency factors were considered, as they are ‘the most important factors.’”
Brian K. v. Comm’r of Soc. Sec., No. 5:24-CV-26 (CFH), 2025 WL 18718, at *4 (N.D.N.Y. Jan.
2, 2025) (quoting 20 C.F.R. § 416.920c(b)(2)); see also 20 C.F.R. § 416.920c(b)(2)-(3) (stating
that an ALJ “is not required to” explain the remaining factors unless the ALJ determines that
“two or more medical opinions or [PAMFs] about the same issue are both equally well-supported
[ ] and consistent with the record [ ] but are not exactly the same”).
For the “supportability” analysis, “[t]he more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or her medical
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opinion(s) or [PAMFs], the more persuasive the medical opinion(s) or [PAMFs] will be.” 20
C.F.R. § 416.920c(c)(1); see also Kathleen A. v. Comm’r of Soc. Sec., No. 3:20-CV-1034 (LEK),
2022 WL 673824, at *4 (N.D.N.Y. Mar. 7, 2022) (quoting Carmen M. v. Comm’r of the Soc.
Sec., No. 20-CV-6532 (MJR), 2021 WL 5410550, at *4 (W.D.N.Y. Nov. 19, 2021)) (noting that
“[t]he supportability analysis focuses on ‘how well a medical source supported their opinion(s)
with objective medical evidence and supporting explanations’ ”). With regard to the
“consistency” analysis, “[t]he more consistent a medical opinion(s) or [PAMFs] is with the
evidence from other medical sources and nonmedical sources in the claim, the more persuasive
the medical opinion(s) or [PAMFs] will be.” 20 C.F.R. § 416.920c(c)(2); see also Kathleen A.,
2022 WL 673824, at *5 (first quoting 20 C.F.R. § 404.1520c(c)(2); then citing Galo G. v.
Comm’r of the Soc. Sec., No. 20-CV-1011 (FJS), 2021 WL 5232722, at *4 (N.D.N.Y. Nov. 9,
2021)) (“In the consistency analysis, an ALJ must look outside the medical opinion itself to
‘evidence from other medical sources and nonmedical sources in the claim,’ and will find the
medical opinion more persuasive the more consistent it is with these external sources.”).
“ALJs are not required to state on the record every reason justifying a decision and [are]
not required to discuss every single piece of evidence submitted.” Brian K., 2025 WL 18718, at
*4 (quoting Ryan v. Comm’r of Soc. Sec., No. 21-2947-CV, 2022 WL 17933217 at *2 (2d Cir.
Dec. 27, 2022) (summary order) (quoting Brault, 683 F.3d at 448)) (internal quotation marks
omitted). “However, they must articulate how persuasive they found the medical opinions and
PAMFs.” Id. (citing 20 C.F.R. § 416.920c(b)). “If the ALJ fails adequately to ‘explain the
supportability or consistency factors,’ or bases ‘[the] explanation upon a misreading of the
record, remand is required.’” Id. (quoting Rivera v. Comm’r of Soc. Sec., No. 19-CV-4630
(LJL/BCM), 2020 WL 8167136, at *14 (S.D.N.Y. Dec. 30, 2020) (quoting Andrew G. v.
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Comm’r of Soc. Sec., No. 3:19-CV-0942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1,
2020), report and recommendation adopted 2021 WL 134945 (Jan. 14, 2021))); see also Jennifer
A. v. Comm’r of Soc. Sec., No. 1:22-CV-1167 (MAD), 2023 WL 8654215, at *4 (N.D.N.Y. Dec.
13, 2023) (quoting Eric G. v. Comm’r of Soc. Sec., No. 5:21-CV-1314 (MAD), 2023 WL
3004780, *4, n.1 (N.D.N.Y. Jan. 5, 2023)) (“The ALJ need not specifically write the terms
‘supportability’ or ‘consistency’ to meet the articulation requirements in 20 C.F.R. §§ 404.1520c
and 416.920c; it is enough that the ALJ applied the proper legal analysis.”)
C. 	Prior Remand Order
1. 	Legal Standard
“[W]here a case has been decided by an appellate court and remanded, the court to which
it is remanded must proceed in accordance with the mandate and such law of the case as was
established by the appellate court.” Ejenie M. v. Comm’r of Soc. Sec., No. 5:23-CV-1251
(DNH/CFH), 2024 WL 5052953, at *9 (N.D.N.Y. Dec. 9, 2024), report and recommendation
adopted, No. 5:23-CV-1251 (AJB/CFH), 2025 WL 81074 (N.D.N.Y. Jan. 13, 2025) (quoting
Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., 762 F.3d 165, 175 (2d Cir. 2014)). “This rule
applies in the Social Security context pursuant to the regulations, as (sic) ALJ is directed to ‘take
any action that is ordered by the Appeals Council and may take any additional action that is not
inconsistent with the Appeals Council’s remand order.’” Id. (quoting 20 C.F.R. § 416.1477(b)).
“A failure to comply with the Appeals Council’s remand order may be grounds for
remand.” Ejenie M., 2024 WL 5052953, at *9 (first citing Dommes v. Colvin, No. 3:15-CV-977
(GTS), 2016 WL 7104900, at *4-5 (N.D.N.Y. Dec. 6, 2016) (then citing Mortise v. Astrue, 713
F. Supp. 2d 111, 123-24 (N.D.N.Y. 2010)); Parks v. Colvin, No. 15-CV-6500 (FPG), 2017 WL
279558, at *3 (W.D.N.Y. Jan. 23, 2017) (“The ALJ’s failure to abide by the directives in an
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Appeals Council remand order constitutes legal error requiring remand.”). “However, where an
issue is not precluded by remand order or the judgment of the court in the prior judicial review,
that issue may be decided differently . . . on remand if the Commissioner applies the correct legal
standard and substantial evidence in the record as a whole supports the decision.” Ejenie M.,
2024 WL 5052953, at *9 (quoting Gusky v. Astrue, 954 F. Supp. 2d 180, 190 (W.D.N.Y. 2013))
(quoting Thompson v. Astrue, 583 F. Supp. 2d 472, 475 (S.D.N.Y. 2008)) (internal quotation
marks omitted); see also Marvin v. Colvin, No. 3:15-CV-74 (GLS/CFH), 2016 WL 2968051, at
*2 (N.D.N.Y. May 20, 2016) (citing Thompson, 583 F. Supp. 2d at 475) (“. . . in the absence of
limiting instructions or court findings, the Commissioner may revisit on remand any issues
relating to the application for benefits.”).
2. 	Analysis
a. Dr. Toni Usev, N.P. and Licensed Mental Health Counselor Kate
Alberts
In the November 2023 adopted Report-Recommendation, Judge Lovric determined that
“the ALJ committed remandable error by failing to ‘meaningfully discuss’ the supportability and
consistency of the opinions from NP Usev and LHMC Alberts.” T. at 865 (See Dkt. No. 8-9).
He concluded, “[t]hese errors prevent this court from confidently concluding that the ALJ’s
evaluation of the persuasiveness of the relevant mental health opinions is supported by
substantial evidence, and cannot be considered harmless.” Id. (See Dkt. No. 8-9).
On April 7, 2021, NP Usev completed a medical source statement. See T. 669-71, 748-50
(duplicative) (See Dkt. No. 8-7). NP Usev noted that she had been seeing Plaintiff monthly for
thirty-minute sessions but did not indicate when she started treating her. See id. at 669, 748
(duplicative) (See Dkt. No. 8-7). She opined that Plaintiff was limited but satisfactory in her
mental abilities to remember work-like procedures; understand and remember very short and
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simple instructions; carry out very short and simple instructions; sustain an ordinary routine
without special supervision; work in coordination with, or proximity to, others without being
unduly distracted; make simple work-related decisions; accept instructions and respond
appropriately to criticism from supervisors; get along with co-workers or peers without unduly
distracting them or exhibiting behavioral extremes; respond appropriately to changes in a routine
work setting; deal with normal work stress; and be aware of normal hazards; take appropriate
precautions; interact appropriately with the general public; maintain socially appropriate
behavior; and adhere to basic standards of neatness and cleanliness. T. 670-71, 749-50
(duplicate) (See Dkt. No. 8-7). She additionally opined that Plaintiff was seriously limited, but
not precluded, in her ability to maintain attention for two hour segment; maintain regular
attendance and be punctual with customary, usually strict tolerances; complete a normal workday
and workweek without interruptions from psychologically-based symptoms; perform at a
consistent pace without an unreasonable number and length of rest periods; travel in unfamiliar
places; and use public transportation. T. 670-71, 749-50 (duplicate) (See Dkt. No. 8-7). Lastly,
she opined that Plaintiff would be absent from work about four days per month. T. 671, 750
(duplicate) (See Dkt. No. 8-7).
On April 23, 2021, LMHC Alberts completed a medical source statement. See T. 743-47
(See Dkt. No. 8-7). She noted that she has been seeing Plaintiff weekly to biweekly since April
25, 2016. T. 743 (Dkt. No. 8-7). LMHC Albert opined that Plaintiff was limited but satisfactory
in her abilities to remember work-like procedures; understand and remember very short and
simple instructions, carry out very short and simple instructions; be aware of normal hazards and
take appropriate precautions; and travel in an unfamiliar place. See T. 744-45 (See Dkt. No. 8-7).
She also opined that Plaintiff was seriously limited, but not precluded, in her ability to maintain
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attention for a two-hour segment; maintain regular attendance and be punctual within customary,
usually strict tolerances; make simple work-related decisions; interact appropriately with the
general public; maintain socially-appropriate behavior; adhere to basic standards of neatness and
cleanliness; and use public transportation. Id. Further, LMHC Alberts assessed that Plaintiff was
unable to meet competitive standards in the following abilities: to sustain an ordinary routine
without special supervision; perform at a consistent pace without an unreasonable number and
length of rest periods; ask simple questions or request assistance; respond appropriately to
changes in a routine work setting; and deal with normal work stress. See id. at 744 (See Dkt. No.
8-7). Additionally, LMHC Alberts determined that Plaintiff has no useful ability to function in
the following abilities: to work in coordination with or proximity to others without being unduly
distracted; complete a normal workday and workweek without interruptions from
psychologically-based symptoms; accept instructions and respond appropriately to criticism from
supervisors; and get along with co-workers or peers without unduly distracting them or
exhibiting behavioral extremes. See id. LMHC Alberts included a letter in explanation of her
findings noting that she has “witnessed difficulties [of Plaintiff] maintaining her full time
employment with the Syracuse City School District as a result of her mental health related
symptoms.” Id. at 746 (See Dkt. No. 8-7). She indicated that she was “familiar with [Plaintiff’s]
symptoms and the functioning limitations that her mental health imposes. . . .” Id. Lastly,
LMHC Alberts opined that Plaintiff would be absent more than four days per month. Id. at 745
(See Dkt. No. 8-7).
On April 5, 2024, NP Usev completed another medical source statement. See T. 1203-
1205 (Dkt. No. 8-13). Many of the mental abilities and aptitudes that Plaintiff could do in her
earlier Medical Source Statement were the same, except for the following changes. Id. She
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determined that Plaintiff was unlimited in her abilities to interact appropriately with the general
public, maintain socially-appropriate behavior, and adhere to basic standards of neatness and
cleanliness. T. 1205 (See Dkt. No. 8-13). She further opined that the following of Plaintiff’s
abilities were limited but satisfactory: to ask simple questions or request assistance; travel in
unfamiliar places; and use public transportation. T. 1204-1205 (See Dkt. No. 8-13). Lastly, NP
Usev determined that Plaintiff was seriously limited but not precluded in her ability to: make
simple work-related decisions; respond appropriately to changes in a routine work setting; and
deal with normal work stress. T. 1204 (Dkt. No. 8-13). NP Usev included an explanation stating
that Plaintiff’s limitations were “[d]ue to her mental condition and psychosis [Plaintiff] cannot
properly function in working settings[.]” T. 1205 (Dkt. No. 8-13).
In the November 2024 hearing decision, the ALJ found NP Usev and LMHC Alberts’s
opinions to be unpersuasive. T.765 (See Dkt. No. 8-8). The ALJ noted:
[a]lthough Ms. Usev and Ms. Alberts supported their opinions with narrative
comments and citations to certain mental health signs and symptoms, I find the
opinions of the State agency medical consultants, inconsistent with the mild and
moderate work-related mental limitations assigned by Dr. Grassl, and inconsistent
with the evidence described [within the decision] regarding the mental status
examination findings from the longitudinal records and the claimant’s favorable
response to mental health treatment.
Id. In support of his discounting NP Usev and LHMC Alberts’s proposed limitations, the ALJ
explained:
[m]ental health treatment records from 2020 and 2021 repeatedly state that, during
mental status examinations, the claimant had an anxious mood and a depressed
affect, but her behavior was cooperative, her thoughts were linear, logical, and goal
directed, her attention and memory were intact, and her insight and judgment were
good []. 	More recent mental health treatment records consistently state that, on
examination, the claimant’s appearance is within normal limits, her attitude is
cooperative, her speech is clear, her thoughts are logical, her perception and thought
content were within normal limits, her cognition is within normal limits, her insight
and judgment are within normal limits, her attention span and concentration are
normal, and she has no memory loss. These records also state that the claimant’s
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psychiatric symptoms are ‘well controlled’ with medication. 	All or nearly all of
the []examination findings and statements about claimant’s favorable response to
mental health treatment appear in each and every one of the mental health records
dated [September 22, 2022, to April 5, 2024].
T. 765 (citing 298, 305, 700, 708, 716, 1237-79, 1281-1294, 1725-57, 1797-1802, 1804-1810,
1834-38, 1866-1871, 1873-78). Additionally, the undersigned determines, after a review of the
record, NP Usev and LMHC Alberts’s own examination records do not support their findings.
See id. at 1238-40, 1245-46, 1251-52, 1257-58, 1263-64, 1270, 1277, 1284, 1291, 1298, 1727-
28, 1732-33, 1738-40, 1745, 1750, 1754 (NP Usev’s treatment notes finding Plaintiff well
nourished, well developed, normal psychiatric status, oriented to time, place, person; appropriate
mood and affect; not hopeless; no memory loss; normal insight, judgment, attention span, and
concentration); See id. at 1706, 1708, 1712, 1715-16 (LMHC Alberts’s treatment notes reporting
normal appearance and mental health examinations).
Thus, the record clearly demonstrates that the ALJ considered the supportability and
consistency of NP Usev’s and LMHC Alberts’s opinions with their own records and the record
as a whole as he summarized the treatment providers’ records and Plaintiff’s activities of daily
living in the decision. See Kami B v. Saul, No. 5-18-CV-1497 (DJS), 2020 WL 247279, at *6-7
(N.D.N.Y. Jan. 16, 2020 (finding the ALJ adequately discussed supportability and consistency
because, although the plaintiff “is correct that the ALJ did not, in his discussion of Dr. Allam’s
opinion, explain in detail why he found those opinions not be consistent with or supported by the
evidence in the record[,] . . . the ALJ explained the findings in the record earlier in his
decision”).
Plaintiff further contends that the ALJ failed to explain how the evidence he cited
“undermine[s] the limitations contained” in NP Usev’s and Ms. Alberts’s opinions. Dkt. No. 12
at 13. However, the undersigned agrees with the Commissioner that “how the evidence is
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inconsistent with the opinions is self-evident.” Dkt. No. 16 at 10. For example, the treating
providers both rated Plaintiff’s ability to maintain concentration as “[s]eriously limited, but not
precluded,” and the ALJ cited mental status examinations showing normal attention and
cognition. Compare T. 670, 744, 1204 with 765. Similarly, they opined that Plaintiff would be
seriously limited in making even simple work-related decisions, and the ALJ highlighted times
where Plaintiff’s cognition, intelligence, memory, insight, and judgment were all determined to
be normal. Compare T. 744, 1204 with id. at 765.
Therefore, the Court determines the ALJ sufficiently evaluated and explained his
assessment of the persuasiveness of NP Usev’s and LMHC Alberts’s opinions.
b. State Agency Psychological Consultants L. Hoffman, Ph. D.; J.
Penny, Psy. D.; and Y. Sherer, Psy. D.
In the November 2023 adopted Report-Recommendation, Judge Lovric determined that
the ALJ’s inadequate consideration of NP Usev’s and LHMC Alberts’s opinions also called into
question his evaluation of the persuasiveness of the non-examining consultants' opinions from
Drs. Hoffman and Sherer. See T. 865 (See Dkt. No. 8-9). The ALJ’s finding that state agency
medical consultants’ opinions were more persuasive than those of Plaintiff’s treatment providers
is not inherently improper. In Rushford v. Kijakazi, the Second Circuit held the ALJ did not err
in concluding that the medical opinions of reviewing consultants undercut, and were more
persuasive than the opinions of the plaintiff’s primary care provider and one of the agency’s
examining consultants. See Rushford v. Kijakazi, No. 23-317, 2023 WL 8946622, at *1 (2d Cir.
Dec. 28, 2023) (citing Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)); see also Parent v.
O’Malley, No. 23-917, 2024 WL 3342463, at *1-2 (2d Cir. July 9, 2024) (holding the ALJ did
not act improperly when finding the opinions of non-examining consultants more persuasive than
examining consultants).
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“A non-examining state agency consultant’s opinion may be relied upon where it is
supported by other record evidence.” Antonio V. v. Dudek, No. 3:23-CV-1006 (MJK), 2025 WL
894955, at *11 (N.D.N.Y Mar. 21, 2025) (quoting Tammy L. v. Comm’r of Soc. Sec., No. 6:23-
CV-1545 (MJK), 2024 WL 4859092, at *5 (N.D.N.Y. Nov. 21, 2024)) (citing Hansen-Nilsen v.
Comm’r of Soc. Sec., No. 5:15-CV-1528 (GTS/WBC), 2017 WL 913933, at *5 (N.D.N.Y. Feb.
7, 2017)) (citing Frye ex rel. A.O. v. Astrue, 485 F. App’x 484, 487 (2d Cir. 2012) (summary
order) (“The report of a State agency medical consultant constitutes expert opinion evidence
which can be given weight if supported by medical evidence in the record.”), report
recommendation adopted 2017 WL 913639 (N.D.N.Y. Mar. 6, 2017)); then citing Swan v.
Astrue, No. 09-CV-486-S, 2010 WL 3211049, at *5 (W.D.N.Y. Aug. 11, 2010) (“State agency
medical consultants are qualified experts in the evaluation of disability claims and as such, their
opinions may constitute substantial evidence if they are consistent with the record as a whole.”).
In November 2022, Dr. Hoffman opined that plaintiff had the following limitations:
I. Understanding and Memory: the [claimant] is able to understand and remember
instructions and procedures without substantial limitation.
II. Sustained Concentration and Persistence: the [claimant] is able to maintain
adequate attention to complete ordinary work tasks on an ongoing basis and is able
to independently sustain a routine over time.
III. Social Interaction: [Claimant] has some difficulties with social interaction but
retains adequate social skills to manage routine interactions in the workplace.
IV. Adaptation: the [claimant] has some difficulty coping with stress and this might
impact her ability to adapt to changes, but she retains the capacity to deal with
minor changes in an ordinary work setting.
T. 74. Upon reconsideration, Dr. Sherer affirmed these findings. T. 95. In June 2023, Dr. Sherer
opined that Plaintiff had the following limitations:
I. Understanding and Memory: the [claimant] is able to understand and remember
instructions and procedures without substantial limitation.
II. Sustained Concentration and Persistence: despite occasional lapses in focus the
[claimant] is able to maintain adequate attention to complete ordinary work tasks
on an ongoing basis and is able to independently sustain a routine over time.
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III. Social Interaction: [Claimant] has some difficulties interacting with others but
retains adequate social skills to manage routine interactions in the workplace.
IV. Adaptation: [Claimant] exhibits some difficulty with coping with stress, but
shows adequate ability to adapt to changes and deal with the mental demands of a
work setting.
T. 888, 898. Upon reconsideration, Dr. Penny affirmed these findings. T. 909 (See Dkt. No. 8-9).
Plaintiff contends that the consultants did not review the complete record. See Dkt. No. 12 at 27.
Yet, the transcript shows the records received included documents from 2020 to 2023. T. 82-85,
62-64.
Based on the opinions of the state agency psychological consultants, the ALJ limited
Plaintiff to being able to “perform simple and routine work that requires no more than occasional
interaction with others. T. 764 (See Dkt. No. 8-8). The ALJ found the state agency consultants’
opinions “persuasive because they are supported by detailed narrative rationales, which cite
supporting objective medical evidence and other evidence from the record, and they are
consistent with the record as a whole, including the evidence described [within the decision]
regarding the mental status examination findings from the longitudinal records and claimant’s
favorable response to mental health treatment.” Id. Plaintiff focuses on the ALJ’s alleged error
in the consistency factor. See Dkt. No. 12 at 27. As noted above, the ALJ included in his
decision a detailed analysis of Plaintiff’s mental health treatment records, similarly here, the ALJ
noted that the same analysis is relied upon in “finding the opinions of the State agency
psychological consultants . . . consistent with the record.” T. 765 (See Dkt. No. 8-8). Therefore,
the undersigned concludes that the ALJ properly evaluated the persuasiveness of the state agency
consultants’ opinions.
c. Consultative Psychiatric Examiner Corey Anne Grassl, Psy. D.
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On May 11, 2023, Plaintiff underwent a psychiatric evaluation with Dr. Grassl. See T.
1766-69 (See Dkt. No. 8-13). Plaintiff’s primary complaints were “depressive symptomatology
including irritability, crying, guilt, hopelessness, social withdrawal, loss of interest, and sadness.
T. 1766 (See Dkt. No. 8-13). Plaintiff also reported experiencing “distressing memories,
nightmares, hypervigilance, detachment from others, intrusive thoughts, and avoidance of taking
a shower.” Id. She reported, “[d]epending on her mental health and physical, she can do all
skills of daily living.” T. 1768 (See Dkt. No. 8-13). On exam, Dr. Grassl noted that Plaintiff’s
demeanor was cooperative and her manner of relating was fair. See id. at 1767 (See Dkt. No. 8-
13). She was disheveled in her dress, but fairly groomed. See id. She exhibited adequate
expressive language and receptive language. See id. Plaintiff was coherent and goal directed
with no evidence of hallucinations, delusions, or paranoia. See id. Plaintiff had impaired
attention and concentration, but her recent and remote memory skills were intact. See id. at 1767-
68. (See Dkt. No. 8-13). Her judgment and insight were concluded to be fair. See id. at 1768
(See Dkt. No. 8-13).
In her Medical Source Statement, Dr. Grassl determined that Plaintiff was “markedly
limited in her ability to regulate emotions, control behavior and maintain well-being, sustain an
ordinary routine and regular attendance at work, sustain concentration and perform a task at a
consistent pace, and use reason and judgment to make work-related decisions.” T. 1768. Dr.
Grassl further opined that Plaintiff was “mildly limited in her ability to understand, remember,
and apply simple directions and instructions” and “her ability to be aware of normal hazards and
take appropriate precautions.” Id. Lastly, Dr. Grassl concluded that Plaintiff is “moderately
limited in her ability to understand, remember, and apply complex directions and instructions,
maintain personal hygiene and appropriate attire.” Id. Dr. Grassl noted Plaintiff’s difficulties
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were caused by psychiatric problems. See id. Dr. Grassl diagnosed Plaintiff with schizoaffective
disorder and posttraumatic stress disorder. See id.
As an initial matter, the ALJ’s adoption of only a portion of an opinion was not
inherently improper. See Walker v. Colvin, No. 3:15-CV-465 (CFH), 2016 WL 4768806, at *10
(N.D.N.Y. Sept. 13, 2016) (“[A]n ALJ may properly ‘credit those portions of a consultative
examiner’s opinion which the ALJ finds supported by substantial evidence of record and reject
portions which are not so supported.’ This is true even where the ALJ relies on a consultative
examiner’s examination findings but rejects the consultative examiner’s medical source
statement[.]”). Indeed, “[a]lthough the ALJ’s conclusion may not perfectly correspond with any
of the opinions of medical sources cited in his decision, he was entitled to weigh all of the
evidence available to make an RFC finding that was consistent with the record as a whole.”
Matta, 508 F. App’x at 56; see also Tennant v. Comm’r of Soc. Sec., No. 6:16-CV-360 (DJS),
2017 WL 1968672, *8 (N.D.N.Y. May 10, 2017). An ALJ may, therefore, accept portions of a
medical opinion that are consistent with the record and reject portions that are inconsistent with
the record. See id.
The ALJ found Dr. Grassl’s opinion to be partially persuasive. See T. 764 (See Dkt. No.
8-8). The ALJ noted that
[t]he mild and moderate work-related mental limitations described by Dr. Grassl
are persuasive, as they are supported by her own mental status examination finding
and are consistent with the opinions of the State agency psychological consultants,
as well as evidence described [in the ALJ’s decision] regarding the mental status
examination findings from the longitudinal record and the claimant’s favorable
response to mental health treatment. 	However, Dr. Grassl’s opinion that the
claimant has certain marked work-related mental limitations is inconsistent with
the opinion of the State agency consultants. 	Marked mental limitations also are
inconsistent with the evidence [described in the ALJ’s decision] regarding the
mental status examination findings from the longitudinal records and the claimant’s
favorable response to mental health treatment. Accordingly, Dr. Grassl’s opinion
that the claimant has marked mental limitations is unpersuasive.
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T. 764-65 (Dkt. No. 8-8). Thus, contrary to Plaintiff’s assertion, the ALJ adequately articulated
his analysis of the supportability factor, and the record supports the ALJ’s findings. See Tara M.
B. v. Comm’r of Soc. Sec., No. 1:22-CV-1058 (MAD/DEP), 2023 WL 7286669, at *4 (N.D.N.Y.
Sept. 21, 2023) (holding the ALJ’s review of supportability was sufficient where the ALJ stated
that the doctor’s opinion was only “somewhat supported by [his] examination report,” as the
degree of some limitations recommended were not supported by the doctor’s own objective
findings), report and recommendation adopted sub nom. Tara B. v. Comm’r of Soc. Sec., 2023
WL 7281138 (N.D.N.Y. Nov. 3, 2023).
As for the consistency factor, the record demonstrates that the ALJ considered the
consistency of Dr. Grassl’s opinion with the record as a whole, as he summarized the treatment
providers’ records and activities of daily living in the decision. See T. 762-66; see Julie M. v.
Comm’r of Soc. Sec., No. 8:23-CV-518 (MJK), 2024 WL 664413, at *11 (N.D.N.Y. Feb. 16,
2024) (“The ALJ’s detailed summary of plaintiff’s treatment history, provided in an earlier
section of the written decision, highlights the evidence upon which the ALJ rendered this
consistency assessment.”) (citation omitted). Additionally, as noted above, the ALJ conducted a
detailed analysis of mental health treatment records, which he relied on in finding that Dr.
Grassl’s opinion that Plaintiff has marked mental limitations was inconsistent with the record. T.
765 (See Dkt. No. 8-8).
For example, when examining Dr. Grassl’s stated significant limitations regarding
emotion regulation, behavioral control, and well-being, the record shows some inconsistencies.
Treatment notes indicate that Plaintiff reported her symptoms were well-managed with
medication. See T. 291, 298, 700, 708, 716, 1241, 1253, 159, 1265, 1272, 1278, 1286, 1293,
1729, 1735, 1741, 1746, 1751, 1756, 1801, 1809, 1838, 1870, 1877 (See Dkt. Nos. 8-7, 8-13).
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Plaintiff’s mental status examinations also consistently described her behavior as cooperative,
with normal insight and judgment. See T. 298, 305, 700, 708, 716, 1245-46, 1251-52, 1257-58,
1263-64, 1270, 1276-77, 1284, 1291, 1727-28, 1733-34, 1739-40, 1745, 1750, 1799-1800, 1806-
07, 1836, 1868-69; see also T. 1247, 1253, 1259, 1272, 1278, 1286 (“happy, pleasant and
cooperative”); See Dkt. Nos. 8-7, 8-13, 8-14. As for Dr. Grassl’s marked limitations in
concentration and pace, the record also reveals many instances of Plaintiff having normal
attention, intelligence, cognition, and memory. T. 298, 305, 700, 708, 716, 1245-46, 1251-52,
1257-58, 1263-64, 1270, 1276-77, 1284, 1291, 1727-28, 1733-34, 1739-40, 1745, 1750, 1799-
1800, 1806-07, 1836, 1868-69 (See Dkt. Nos. 8-7, 8-13, 8-14). The ALJ also noted the record
shows “that in recent months the claimant has been furthering her education by taking college
classes.” T. 765 (citing T. 1259, 1272, 1286, 1293); See Dkt. Nos. 8-8, 8-13.
Thus, the undersigned finds that the ALJ adequately explained the consistency factor as
set forth above. The regulations require that “it . . . be discernable that the ALJ properly applied
the regulations and considered [consistency] in weighing the medical opinions of record.” Laura
Z. v. Comm’r of Soc. Sec., No. 21-CV-918, 2023 WL 2534421, at *4 (W.D.N.Y. Mar. 16, 2023).
The record here demonstrates that the ALJ satisfied that obligation.
Further, the undersigned agrees with the Commissioner that, to the extent Plaintiff invites
the undersigned to reweigh the evidence, the Court must decline. See Dkt. No. 16 at 3-4; see
Krull v. Colvin, 669 F. App’x 31, 32 (2d Cir. 2016) (summary order) (“[Claimant]’s
disagreement is with the ALJ’s weighing of the evidence, but the deferential standard of review
prevents us from reweighing it.”). Indeed, “[i]t is the ALJ’s job to resolve conflicting record
evidence,” and this Court “must defer to that resolution.” Gogos v. Comm’r of Soc. Sec., No. 18-
CV-1188, 2020 WL 128445, at *3 (W.D.N.Y. Jan. 10, 2020).
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Moreover, the ALJ did not cherry-pick by pointing only to evidence of normal mental
status examinations; rather, he reviewed Plaintiff’s medical record in depth, assessed her
symptoms “over time,” and highlighted records reflecting both normal and more significant
findings. Cf. Carrie G.W. v. Comm’r of Soc. Sec., No. 1:23-CV-1552 (AMN/MJK), 204 WL
5378978, at *7 (N.D.N.Y. Oct. 9, 2024), report and recommendation adopted, No. 1:23-CV-
1552 (AMN/MJK), 2025 WL 249100 (N.D.N.Y. Jan. 21, 2025) (finding that the ALJ referenced
records showing normal findings, btu the record also showed the plaintiff consistently reporting
symptoms of anxiety, depression, fatigue, brain fog, and mental records reported that the plaintiff
presented with slow though and speech, limited concentration, and flat and withdrawn affect,
which the ALJ did not reference) (citing Faure v. Comm’r of Soc. Sec., 685 F. Supp. 3d 247, 263
(S.D.N.Y. 2023)) (“Particularly with mental illness, it is important to assess the patient’s
symptoms over time.”).
V. 	Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby:
RECOMMENDED, that Plaintiff’s Motion for Judgment on the Pleadings, Dkt. No. 12,
be DENIED; and it is further
RECOMMENDED, that the Commissioner’s Motion for Judgment on the Pleadings,
Dkt. No. 16, be GRANTED, and the Commissioner’s decision be AFFIRMED; and it is
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order on
all parties within Local Rules.
IT IS SO ORDERED.
Pursuant to U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within
which to file written objections to the foregoing report. Such objections shall be filed with the
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Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14)
DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); 28 U.S.C. § 636(b)(1); F ED. R. C IV P. 6(a), 6(e), 72.
Date: 	February 23, 2026
Albany, New York
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