Royston v. Commissioner of Social Security

OCR transcription for search; preserved printed pages are authoritative

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

Leighann R.,1
Plaintiff,
V. 5:25-CV-470
(LEK/MJK)

Commissioner of Social Security,
Defendant.

Howard D. Olinsky Esq., for Plaintiff
Kristina D. Cohn Esq., Special Asst. U.S. Attorney, for Defendant

Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Lawrence E. Kahn, Senior U.S. District Judge:

REPORT-RECOMMENDATION

Leighann brought this action under the Social Security Act (42
U.S.C. § 405(g)) seeking judicial review of the Social Security
Commissioner’s final decision denying her application for benefits. (Dkt.
1.). Leighann did not consent to the jurisdiction of a Magistrate Judge.
(Dkt. 4). So, the Honorable Lawrence E. Kahn, Senior U.S. District
Judge, referred this matter to the Court for Report and

Recommendation. Both parties filed briefs (Dkts. 11, 16, 18) which the

1 This Report-Recommendation will identify the plaintiff using only her first name
and last initial to protect her privacy.

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Court treats as motions under Fed. R. Civ. P. 12(c), in accordance with

General Order 18.

I. PROCEDURAL HISTORY

On July 20 2021, Leighann filed an application for Title II
disability insurance and Title XVI supplemental security income
benefits, alleging disability beginning March 31, 2020. (T. 11).2 The
Social Security Administration denied the claim initially on September
8, 2021, and again upon reconsideration on December 7, 2021. (d.).
Leighann requested a hearing fifteen days later. U/d.). Administrative
Law Judge (“ALJ”) Gretchen Mary Greisler held a hearing on December
7, 2022. (T. 69-100). At the hearing, Attorney Kevin Dwyer represented
Leighann. (T. 71). Both Leighann and Vocational Expert Victor Alberigi
testified. (T. 69-100). On May 2, 2024, ALJ Greisler held a
supplemental hearing. (T. 11, 42-68). At that hearing, Dwyer again
represented Leighann. (T. 44). Leighann, Dr. Jerissa Johnson Berry,

and Vocational Expert Davia Grant testified. (T. 42-68). On May 20,

2 All page references are to the Administrative Transcript (“T.”) and not the page
numbers assigned by the CM/ECF pagination system.

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2024, ALJ Greisler issued an unfavorable decision. (T. 8). The appeals
council denied review. (T. 1-4).
II. GENERALLY APPLICABLE LAW

A. Disability Standards

To be considered disabled, plaintiffs seeking disability insurance
or supplemental security income benefits must establish that they are
“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 twelve months ...” 42 U.S.C.
§ 1382c(a)(38)(A). In addition, plaintiffs’

physical or mental impairment or impairments [must be] of s

uch severity that [they are] not only unable to do [their]

previous work but cannot, considering [their] age, education,

and work experience, engage in any other kind of substantial

gainful work which exists in the national economy, regardless

of whether such work exists in the immediate area in which

[they] live[], or whether a specific job vacancy exists for

[them], or whether [they] would be hired if [they] applied for
work.

42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step process, set forth in 20 C.F.R.
§§ 404.1520 and 416.920, to evaluate disability insurance and

supplemental security income disability claims.

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First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If [they are]
not, the [Commissioner] next considers whether the claimant
has a “severe impairment” which significantly limits [their]
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 meets or equals the criteria of an
impairment listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will
consider [them] disabled without considering vocational
factors such as age, education, and work experience ...
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant’s severe
impairment, [they have] the residual functional capacity to
perform [their] past work. Finally, if the claimant is unable to
perform [their] past work, the [Commissioner] then
determines whether there is other work which the claimant
can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also 20 C.F.R.
§§ 404.1520, 416.920. Plaintiffs have the burden of establishing
disability at the first four steps. See Selian v. Astrue, 708 F.3d 409, 418
(2d Cir. 2013). If they establish that their impairment prevents them
from performing their past work, the burden then shifts to the
Commissioner to prove the final step. Id.

B. Scope of Review

When reviewing a final decision of the Commissioner, courts must
determine whether the correct legal standards were applied and

whether substantial evidence supported the decision. Jd. at 417; see also

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Brault v. Soc. Sec. Admin., Comm’, 683 F.3d 448, 448 (2d Cir. 2012); 42
U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). It must be “more
than a scintilla” of evidence scattered throughout the administrative
record. Jd. Yet this standard is a very deferential standard of review “—
even more so than the ‘clearly erroneous standard.” Brault, 683 F.3d at
448. “To determine on appeal whether an ALJ’s findings are supported
by substantial evidence, reviewing courts consider the whole record,
examining the evidence from both sides, because an analysis of the
substantiality of the evidence must also include that which detracts
from its weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258
(2d Cir. 1988). But reviewing courts may not substitute their
interpretation of the administrative record for that of the Commissioner
if the record contains substantial support for the ALJ’s decision. Id.; see
also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

ALJs need not explicitly analyze every piece of conflicting
evidence in the record. See Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d

Cir. 1983); see also Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)

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(“[W]e are unwilling to require an ALJ explicitly to reconcile every
conflicting shred of medical testimony].]”). But ALJs cannot “pick and
choose’ evidence in the record that supports [their] conclusions.” Cruz v.
Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); see also Fuller v.
Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6,
2010).

Ill. FACTS

The record includes Leighann’s medical and mental health
treatment records which the parties are familiar with. The Court will
refer to the pertinent records and the hearing testimony in its analysis

of the parties’ claims as appropriate.

IV. THE ALJ’S DECISION

At step one of the five-step-sequential analysis, ALJ Greisler
determined that Leighann has “not engaged in substantial gainful
activity since March 31, 2020, the alleged onset date.” (T. 14) (cleaned
up).

At step two, ALJ Greisler concluded that Leighann “had the
following severe impairments: depressive disorder, anxiety disorder,

urinary disorder|,] and headache[s].” Ud.).

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At step three, ALJ Greisler determined that Leighann “does not
have an impairment, or combination of impairments, that medically
equals the severity of one of the listed impairments in 20 C.F.R Part
404, Subpart. P, Appendix. 1.” Ud.) (internal citations omitted).

Next, ALJ Greisler discussed the “paragraph B’” criteria. (T. 14-
15). “To satisfy the paragraph B criteria,” mental impairments “must
result in one extreme limitation or two marked limitations in a broad
area of functioning.” See 20 C.F.R. pt. 404, subpt. P, app. 1, §
12.00(A)(2)(b) (cleaned up). The four broad areas of mental functioning
are: (1) understanding, remembering, or applying information; (2)
interacting with others; (8) maintaining concentration, persistence, or
pace; and (4) adapting and managing oneself. See 20 C.F.R. pt. 404,
subpt. P, app. 1, § 12.00(C). Here, ALJ Greisler found that Leighann did
not meet the “paragraph B’ criteria because she determined that
Leighann had only moderate limitations in all four broad areas. (T. 14-
15).

The ALJ also considered the “paragraph C” criteria. (/d.). The
“paragraph C” criteria require a documented medical history of the

existence of the disorder over a period of at least two years, with

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evidence of both (a) medical treatment, mental health therapy,
psychosocial support(s), or a highly structured setting(s) that is ongoing
and that diminishes the symptoms and signs of the mental disorder;
and (b) marginal adjustment, that is, minimal capacity to adapt to
changes in environment or to demands that are not already part of daily
life. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A)(2)(c). Here, ALJ
Greisler noted that the “paragraph C” criteria were not met. (/d.).

After this, ALJ Greisler determined that Leighann had the
residual function capacity (“RFC”) to perform:

light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except the claimant can frequently push and pull. The
claimant can perform simple work at a consistent, goal-
oriented pace. The claimant can engage in occasional
interaction with supervisors and coworkers but cannot
interact with the public. The claimant can make simple
decisions and tolerate occasional work changes. The claimant
can perform work that does not require multitasking,
significant independent judgment, working in _ close
coordination with others or sharing of job tasks. The claimant
would need ready access to a restroom, but the need to use a
restroom could generally be accommodated by the customary
morning midday and afternoon. The claimant cannot tolerate
concentrated exposure to more than moderate noise.

(T. 16).

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To make this finding, ALJ Greisler considered “the medical
opinion(s) and prior administrative medical finding(s)” pursuant to 20
C.F.R. § 416.920c. (Id.).

At step four, ALJ Greisler reasoned that Leighann is unable to
perform any past relevant work, is within the “younger individual age
18-49” category, has “limited education,” and “transferability of skills is
not an issue.” (T. 28).

Finally, at step five, ALJ Greisler concluded that “considering”
Leighann’s “age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national
economy that” she “can perform.” (T. 23). Accordingly, ALJ Greisler
determined that Leighann is not disabled as defined by the Social

Security Act. (T. 25).

V. ISSUES IN CONTENTION
Leighann argues: (1) ALJ Greisler failed to perform the

supportability and consistency analyses on Elizabeth Ferry, M.D.’s
opinion; (2) ALJ Greisler failed to articulate how she performed the
supportability and consistency analysis on Joesph Gaeta, M.D.’s

opinion; (3) ALJ Greisler offered no explanation for omitting Jerisa

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Johnson Berry, M.D.’s sit/stand/walk limitation in the RFC; and (4) ALJ
Greisler’s RFC failed to account for Leighann’s moderate mental
limitations adopted at step 3. (PI. Br. at 6-21). In contrast, the

Commissioner argues that substantial evidence supports ALJ Greisler’s

decision. (Def. Br. at 5-15).

VI. DISCUSSION

The Court recommends the District Court reverse and remand
ALJ Greisler’s decision. First, the Court analyzes Leighann’s first three
arguments together and recommends finding that substantial evidence
does not support ALJ Greisler’s RFC finding and any procedural errors
were not harmless. Second and alternatively, the Court analyzes
Leighann’s fourth argument and recommends finding that ALJ Greisler

properly accounted for Leighann’s moderate mental limitations when

crafting the RFC.

A. ALJ Greisler erred when performing the supportability
and consistency analyses on Dr. Ferry and Dr. Gaeta’s
opinions and those errors were not harmless.

The Court recommends the District Court find that substantial
evidence does not support ALJ Greisler’s decision. When reviewing an

agency’s decision, the reviewing court must determine if substantial

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evidence supports the ALJ’s decision. Here, ALJ Greisler failed to
perform the supportability and consistency analyses on Dr. Ferry’s
opinion, erred when performing the supportability and consistency
analyses on Dr. Gaeta’s opinion, but she properly performed the
supportability and consistency analyses on Dr. Berry’s opinion.
Altogether, ALJ’s Greisler’s errors harmed her analysis. As a result, the
District Court should reverse and remand ALJ Greisler’s decision.
ALJs “must consider all medical opinions and evaluate their
persuasiveness based on their supportability and consistency, the
author’s relationship with the claimant and specialization, and other
factors.” Tyler W. v. Comm’ of Soc. Sec., No. 22-CV-01345 (CFH), 2024
WL 1075209, at *7 (N.D.N.Y. Mar. 12, 2024) (cleaned up).
“The two most important factors for determining the persuasiveness of
medical opinions are consistency and supportability|.]”Stephanie F. v.
Kijakazi, No. 20-CV-1528 (BKS), 2022 WL 3355964, at *9 (N.D.N.Y.
Aug. 15, 2022). Because that ALJs must “explain how [they] considered
the supportability and consistency factors” for a medical opinion. 20

C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).

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“Supportability” means that “the more relevant the objective
medical evidence and supporting explanations presented by a medical
source are to support his or her medical opinion(s) or prior
administrative medical finding(s), the more persuasive the medical
opinions or prior administrative medical finding(s) will be.” Jd. §§
404.1520c(c)(1), 416.920c(c)(1) (cleaned up). “Consistency” means that
“the more consistent a medical opinion(s) or prior administrative
medical finding(s) is with the evidence from other medical sources and
nonmedical sources in the claim, the more persuasive the medical
opinion(s) or prior administrative medical finding(s) will be.” Jd. §§
404.1520c(c)(2), 416.920c(c)(2). In plain English, supportability is an
internal check—examining whether the medical source references
medical evidence that comes from the medical source—while
consistency is an external check—examining whether the medical
sources’ opinion is similar, or dissimilar, to the opinions of other
medical and non-medical sources.

An ALJ’s “failure to explain the supportability and consistency of
the medical opinions in the record is procedural error.” Stephanie F.,

2022 WL 3355964, at *9. And procedural errors—including an ALJ’s

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failure to comply with the articulation requirement—are subject to
harmless error review. See id; see also Loucks v. Kijakazi, No. 21-CV-
1749, 2022 WL 2189298, at *2 (2d. Cir. 2022) (summary order)
(applying harmless error review to a procedural error).

ALJ Greisler failed to analyze the supportability and consistency
of Dr. Ferry’s opinion. To start, Dr. Ferry—who examined Leighann
four times over nine months—opined that Leighann would need to take
unscheduled breaks every 30 minutes, would be off task 20% of the
time, needs full access to a restroom, and would be absent from work
about one day per month. (T. 1488, 1490). When analyzing
supportability and consistency of Dr. Ferry’s medical source statement,
ALJ Greisler noted that “the opinion] [is] not consistent with or
supported by the substantial evidence of record, including their own
notes.” (T. 21). No other explanation is provided. “Such a conclusory
statement is an insufficient explanation of the supportability factor and
is grounds for remand.” Prieto v. Comm’ of Soc. Sec., No. 20-CV-3941,
2021 WL 3475625, at *13 (S.D.N.Y. Aug. 6, 2021) (finding that “the ALJ
failed to satisfy his obligations under the applicable regulations” when

he reasoned “that Dr. Long’s opinion was ‘supported by the medical

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evidence of record and by her underlying examination.”); see also
Warren I. v. Comm’ of Soc. Sec., No. 20-CV-495 (ATB), 2021 WL
860506, at *7 (N.D.N.Y. Mar. 8, 2021) (remanding because “the ALJ
failed to discuss what, if any, ‘objective medical evidence’ and/or
‘supporting explanations’ provided by Dr. Lorensen she relied on in
evaluating the opinion.”).

The Commissioner’s first counter argument on this score is
unpersuasive. The Commissioner argues that Dr. Ferry’s opinion is not
consistent with the record because “urodynamic testing show|[ed] a
smooth bladder wall and no stress urinary incontinence, normal pelvic
ultrasounds, and reports that [Leighann’s] urinary infections were
much better controlled on medication.” (Def. Br. at 9). But the District
Court cannot accept this argument. Reviewing courts cannot “accept
appellate counsel’s post hoc rationalizations for agency action.”
Hamedallah ex rel. E.B. v. Astrue, 876 F. Supp. 2d 138, 144 (N.D.N.Y.
2012) (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d. Cir. 1999)). The
ALJ’s decision neither says nor hints at the Commissioner’s proffered
reason being why ALJ Greisler found Dr. Ferry’s opinion inconsistent

and unsupported. And this Court cannot glean the Commissioner’s

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argument to be the reason why ALJ Greisler discounted Dr. Ferry’s
opinion. At bottom, the Commissioner’s first appellate counter
argument amounts to a post hoc rationalization for ALJ Greisler’s
decision. So the District Court must reject it.

The Commissioner’s second argument on this point is also
unavailing. The Commissioner contends that “the ALJ explained” that
“Dr. Ferry’s opinion was also inconsistent with [Leighann’s] activities of
daily living including her ability to care for her three children . . ., drive,
spend time with friends and family, care for her personal needs,
perform chores, and cook easy meals.” (Def. Br. at 9). But that
argument misstates the record. ALJ Greisler reasoned that “Nurse
Porter[’s], Ms. Terrazas|’s], and Dr. [Ferry’s]” finding that Leighann
“would be off task more than 20 percent of the workday” is not
“consistent with the record” because of Leighann’s “ability to care for
her three children transporting them to and from school.” (T. 22).?
Contrary to the Commissioner’s brief, all ALJ Greisler relied on when

finding that Leighann would not be off task for more than 20 percent of

3 Both parties quibble about ALJ Greisler misnaming Dr. Ferry as Dr. Foray. (T.
21); see also (Pl. Br. at 12) (Def. Br. at 9-10). This misnaming is “merely a harmless
typographical error and does not necessitate remand.” Clark v. Colvin, No. 13-CV-
6628P, 2015 WL 1458628, at *15 (W.D.N.Y. Mar. 30, 2015).

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the workday is child rearing. Jd. Yet “child rearing is not an activity of
daily living that cuts against a disability determination.” Heather C. v.
Comm’ of Soc. Sec., No. 24-CV-663 (AMN/MJK), 2025 WL 2379694, at
*5 (N.D.N.Y. June 18, 2025) (cleaned up); see also Harris v. Colvin, 149
F. Supp. 3d 435, 444 (W.D.N.Y. 2016) (collecting cases).

Even if the Commissioner’s formulation of ALJ Greisler’s
reasoning is correct, “basic daily activity does not, in itself, contradict a
claim of disability, as people should not be penalized for enduring the
pain of their disability in order to care for themselves.” Lyric R. v.
Comm of Soc. Sec., No. 25-CV-234 (MAD/MJK), 2026 WL 88976, at *3
(N.D.N.Y. Jan. 13, 2026) (cleaned up). In short, the Commissioner’s
argument that Leighann’s activities of daily living supports ALJ
Greisler’s decision to discount Dr. Ferry’s time of task finding is
unpersuasive.

The Commissioner’s third argument on this point does not move
the needle. The Commissioner argues that “Dr. Ferry’s opinion is
entitled to no greater consideration because she is [Leighann’s] own
source.” (Def. Br. at 11). But that argument misses the point. There is

no indication that ALJ Greisler even considered Dr. Ferry’s relationship

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with Leighann. The Court’s inability to glean how ALJ Greisler
considered that factor is an error. See Lyric R., 25-CV-234, 2026 WL
88976, at *3 Gdentifying that ALJ’s err when a court is unable to glean
how an ALJ may have considered a plaintiffs relationship with a
provider even though ALJs are not required to articulate how they
considered that factor).

ALJ Greisler also failed to articulate her supportability and
consistency analyses as to Dr. Gaeta’s medical opinion. Dr. Gaeta
opined that Leighann “can occasionally lift and carry up to 20 pounds
occasionally and [10] pounds frequently. [Leighann] could sit one hour
at a time for a total of six hours in an eight-hour workday|, and] stand a
total of three hours in an eight-hour workday|.]” (T. 22) (citing T. 1674-
1683). ALJ Greisler found Dr. Gaeta’s opinion “partially persuasive”
because the doctor’s opinion was “supported by citations to the record,”
had “an explanation,” and was “generally consistent with the opinion of
Dr. Ferry and the record as a whole.” (T. 22).

But missing from ALJ Greisler’s analysis of Dr. Gaeta’s opinion is
Leighann’s catheter needs. Dr. Gaeta noted that Leighann “need|[s] to

self-catheterize herself probably taking 15-30 minutes, about 12 times a

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day. This is because she drinks large amounts of water (3.5 liters a day)
... due to her dysmorphism—a psychiatric issue.” (T. 1683). Relevantly,
the RFC notes that Leighann “need|[s] ready access to a restroom, but
the need to use a restroom could generally be accommodated by the
customary morning midday and afternoon” breaks. (T. 16). Elsewhere,
ALJ Greisler noted that “[a] December 2022 urology treatment note”’—
from Dr. Ferry—indicates that Leighann self-catheterizes “at least 12
times each day.” (T.18) citing (T. 1486). Likewise, ALJ Greisler cited a
medical progress note that reported that Leighann catheterizes
“between 5-12 time[s] per day.” (T. 18) (quoting T. 1934). Similarly,
Leighann testified that she “catheterize[s] much more than five times a
day.” She catheterizes roughly “12” times a day. (T. 57); see also (T. 17)
(identifying that during the December 2022 hearing Leighann testified
that “she experiences urinary retention and must self-catheterize up to
15 times each day.”). Frankly, the Court cannot glean why ALJ Greisler
discounted all that evidence. That is an improper articulation of the
supportability and consistency analyses. And that improper articulation
is error. See, e.g., Amber H. v. Saul, No. 3:20-CV-490 (ATB), 2021 WL

2076219, at *6 (N.D.N.Y. May 24, 2021) (finding “the ALJ's evaluation

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did not adequately satisfy the articulation requirements set forth in 20
C.F.R. § 416.920c(a)-(b), particularly with respect to consistency and
supportability, a legal error necessitating remand” subject to harmless
error review).

Again, the Commissioner’s defense of the agency’s decision cannot
withstand scrutiny. On appeal, the Commissioner argues that ALJ
Greisler was not required to adopt every limitation contained in Dr.
Gaeta’s opinion. (Def Br. at pg. 10) (citing Melanie L. v. Comm’r of Soc.
Sec., No. 22-CV-87 (ATB), 2022 WL 17992220, at *9 (N.D.N.Y. 2022)).
But Melanie L. does not support the Commissioner’s argument. There,
the Court noted that “the ALJ adequately articulated his reasons for
finding portions of the various medical opinion evidence to be
persuasive and satisfied his obligations under the regulations.” Melanie
L., 2022 WL 17992220, at *9. Yet here, this Court cannot determine
why ALJ Greisler determined that the customary morning, midday and
afternoon breaks would be enough when the evidence indicates
otherwise.

To the extent the argument is that this Court—and the District

Court—can glean that ALJ Greisler adopted Dr. Berry’s limitations

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over the entire record, the District Court should reject that argument
because Dr. Berry’s assessment is inconsistent with the record. Dr.
Ferry, Dr. Gaeta, and Leighann all reported that Leighann needs to
self-catheterize roughly 12 times a day. (T. 57, 1486, 1683). It follows
that Leighann needs to use the bathroom frequently. See, e.g.,(T. 19)
(Leighann testified that she wakes up every 30 minutes to pee); (T.
1490) (Dr. Ferry reported that Leighann would need to use the rest-
room every 30 minutes); see also (T. 1494) (Laura Arndt PAC reported
that Leighann needs to use the toilet every five mins). In contrast, only
Dr. Berry noted that a break every two hours is enough. (T. 51-52).
Worse still, Dr. Berry references a September treatment note for the
proposition that Leighann only self-catheterizes five times a day. (T. 50)
(citing T. 1699) But this same note reports that Leighann was
“currently doing [self- catheterization] x12 since she has constant
urge|[s] to void[.]”(T. 1701). Put differently, Dr. Berry’s premise is false.
And even relying on that false premise, Dr. Berry admitted that she
“stretched” her analysis to reach two hours. (T. 53). “Stretched”
testimony cannot be the basis for ALJ Greisler’s RFC. In consequence,

the District Court should reject this argument.

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Still, ALJ Greisler’s supportability and consistency analyses as to
Dr. Berry’s sit/stand/walk limitation is not flawed. To start, Dr. Berry
limited Leighann to carrying “ten pounds continuous|ly] and up to 20
pounds... frequently because of the bladder issue.” (T. 52). Dr. Berry
also limited Leighann to carrying “20 to 50 pounds .. . occasional|[ly]
but” noted that she should not carry anything over 50 pounds. (/d.). Dr.
Berry noted that Leighann “should be able to do an eight-hour day for
sitting... standing... , [and] walking|.]” (T. 51). ALJ Greisler noted Dr.
Berry’s lifting limitations in her opinion and then noted that Dr. Berry’s
opinion was “generally persuasive” because “she had the opportunity to
review the entire record,” her “opinion is supported by a detailed
explanation and citations to the record,” and her “opinion is consistent
with the record as a whole[.]” (T. 22).

Leighann argues that ALJ Greisler erred by not including Dr.
Berry’s sit, stand, and walk limitations in the RFC. Not so. “Light work
requires standing or walking, off and on, for a total of approximately 6
hours of an 8-hour workday.” Lora R. v. Comm’ of Soc. Sec., No. 21-CV-
344-DB, 2024 WL 113070, at *4 (W.D.N.Y. Jan. 10, 2024) (citing SSR

83-10). Here, ALJ Greisler found Dr. Berry’s opinion generally

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persuasive. Included in Dr. Berry’s opinion is a sit/stand/walk limitation
noting that Leighann can “do an eight-hour day of” sitting, standing,
and walking if she is given a break every one to two hours. (T. 51). So
ALJ Greisler noted that Leighann has the RFC to perform light work.
(T.16). That was proper. See, e.g., Lewis v. Colvin, 548 F. App’x 675, 677
(2d Cir. 2013) (“As a preliminary matter, the ALJ's determination that
Lewis could perform light work is supported by Dr. Gaeta’s assessment
of mild limitations for prolonged sitting, standing, and walking, and
direction that Lewis should avoid “heavy lifting, and carrying.”). This
analysis shows, contrary to Leighann’s argument, the Court can glean
how ALJ Greisler incorporated Dr. Berry’s sit/stand/walk limitation in

the RFC.

To recap, the Court recommends the District Court find that ALJ
Greisler failed to perform the supportability and consistency analyses
on Dr. Ferry’s opinion, erred when performing the supportability and
consistency analyses on Dr. Gaeta’s opinion, and properly performed the

supportability and consistency analyses on Dr. Berry’s opinion.

KKK

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Turning to the harmless error analysis, the Court recommends
finding that the error was not harmless. Where errors “necessarily
impacted the ALJ’s evaluation of’ opinion evidence, they are not
harmless. Pamela B. v. Comm’ of Soc. Sec., No. 3:24-CV-0039 (ML),
2025 WL 669735, at *4 (N.D.N.Y. Mar. 3, 2025). Here, the vocational
expert testified that if a worker was off-task for 20 percent of the
workday, the employer would find that unacceptable. (T. 67). But
proper consideration of Dr. Ferry’s and Dr. Gaeta’s opinion would have
allowed the vocational expert to proffer jobs—if any—Leighann could
complete. See Brianna P. v. Comm’r of Soc. Sec., No. 24-CV-301 (PJE),
2025 WL 2734268, at *2 (N.D.N.Y. Sept. 25, 2025) (“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.”). Put differently, ALJ Greisler’s errors were harmful.

B. ALJ Greisler accounted for Leighann’s moderate mental

limitations in the RFC, and the District Court can glean
how the ALJ did so.

If the District Court disagrees with the above analysis and
reaches this issue, this Court recommends the District Court hold that

ALJ Greisler accounted for Leighann’s moderate-mental limitations

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when fashioning the RFC. ALJs must articulate how mental health
impairments are included within the RFC. Here, ALJ Greisler did so.
So the District Court should find the RFC proper in this respect.

ALJs “must remember that the limitations identified in the
‘paragraph B’ and ‘C’ criteria are not an RFC assessment but are used
to rate the severity of mental impairment(s) at steps 2 and 3 of the
sequential evaluation process. The mental RFC assessment used at
steps four and five of the sequential evaluation process requires a more
detailed assessment by itemizing various functions contained in the
broad areas found in paragraphs B and C of Adult Mental Disorders
Listings and 12.00 of the Listing of Impairments, and summarized on
the Psychiatric Review Technique Form.” Patterson v. Astrue, No. 11-
CV-1143 (MAD/DEP), 2013 WL 638617, at *12 (N.D.N.Y. Jan. 24, 2018)
(cleaned up) (quoting SSR 96-8p).

ALJ Greisler’s decision analyzed Leighann’s mental health
impairments. In her decision, ALJ Greisler examined Leighann’s May
2020, August 2020, September 2020, August 2021, June 2022, August,
2022, January 2023, and January 2024 mental health exams. (T. 18-19).

The records reveal that in September 2020, Leighann “reported

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experiencing intense anxious and depressive symptoms” and “her...
mental status examination was notable for an anxious mood.” (T. 18)
(citing T. 867). In August 2021, Leighann’s mental health exams show
that “her anxiety continued to be more manageable, but she had
difficulty going to public places|,] especially if alone” and “difficulty
studying for the GED.” (T. 19) (citing T. 902). But in September 2021,
Leighann, during a telephonic group therapy session, “presented as
joyful and attentive. She actively participated in group and was one of
the members who offered to review their homework.” (T. 19) (citing T.

902). In August 2022, Leighann “endorse[d] anxiety and depression

symptoms, but denied manic symptoms. The mental status examination

showed normal attention and concentration and memory. The
examination was notable for restless psychomotor activity and an
anxious and labile mood.” (T. 19) (citing T.1315-1319). In January 2024
Leighann “reported that things have been starting to go in the right
direction|] .. . [dJespite stressors, her mood, anxiety|,] and irritability].]
After reviewing the record, ALJ Greisler concluded that Leighann’s

“longitudinal treatment history does not support [her] allegation with

25

9

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regard to the extent of her impairment and resultant limitations.” (T.
19).

ALJ Greisler accounted for Leighann’s moderate mental
limitations in her decision. Reviewing the record, H. Ferrin, Ph.D., and
Y. Sherer, Psy.D., opined that Leighann suffers from moderate
limitations in her ability to:

e maintain attention and concentration for extended periods;

e perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances;

e complete a normal workday and workweek without interruptions
from psychologically based symptoms; and to perform at a
consistent pace without an unreasonable number and length of
rest periods.

(T. 110, 156).
ALJ Greisler found both opinions partially persuasive. (T. 20). Detailing
what the opinions lacked, ALJ Greisler noted that Drs. Ferrin and
Sherer “did not examine [Leighann] or have access to the most recent
evidence” so “the record as a whole supports greater limitations in
understanding, remembering or applying information and in

concentration, persistence and maintaining pace.” (/d.) (cleaned up).

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ALJ Greisler incorporated Leighann’s moderate mental
limitations in concentration-related areas when crafting the RFC. ALJ
Greisler crafted an RFC that limited Leighann to “mak[ing] simple
decisions and tolerat[ing] occasional work changesJ,]” and “perform[ing|
work that does not require[|] multitasking, significant independent
judgment, working in close coordination with others or sharing of job
tasks.” (T. 16). That RFC is enough for the District Court to determine
that ALJ Greisler considered Leighann’s moderate limitations. See, e.g.,
Amy Lynn L. v. Comm’ of Soc. Sec. Admin., No. 5:20-CV-833 (ATB),
2021 WL 3287798, at *15 (N.D.N.Y. Aug. 2, 2021) (finding no error
where “[t]he ALJ’s RFC accounted for the plaintiff's anxiety by limiting
her to low pressure work which would not require multi-tasking,
detailed job tasks, significant independent judgment, very short
deadlines, teamwork, and more than occasional changes in the work
setting. The ALJ also limited plaintiff to only occasional interaction
with coworkers and supervisors and no interaction with the public.”)
(cleaned up)); Cf. Elizabeth B. v. Comm’ of Soc. Sec., No. 8:21-CV-
00100 (TWD), 2022 WL 17721254, at *16 (N.D.N.Y. Dec. 15, 2022)

(“moderate limitations are not an impediment to the ability to perform

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gainful activity, particularly when an RFC has already limited a
claimant to unskilled and/or low-stress work.”) (collecting cases).
Leighann’s argument that ALJ Greisler did not comply with the
regulations because she did not adequately explain the conflict between
her RFC and Psychiatric Review Technique findings are unpersuasive
for two reasons. First, the District Court can glean how the ALJ
incorporated Leighann’s moderate-mental limitations in the RFC. See
Snell, 177 F.3d at 134. Second, even if there was an articulation error,
the error is harmless because the moderate-mental limitations were
included in the RFC, and ALJ Greisler offered unskilled and semi-
skilled jobs. See (T. 16, 23); Paw H. v. O’Malley, No. 23-CV-318 (MJk),
2024 WL 418792, at *5 (N.D.N.Y. Feb. 5, 2024) (“Using the skill level
definitions in 20 CFR 404.1568 and 416.968, unskilled work
corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP
of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT.”); see

also Loucks, 2022 WL 2189298, at *2 (2d. Cir. 2022).

KKK

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To end: this Court recommends the District Court find that
substantial evidence supports ALJ Greisler’s RFC regarding Leighann’s

mental health limitations.

VII CONCLUSION
WHEREFORE, based on the findings above, it 1s

RECOMMENDED, that Leighann’s motion for judgment on the
pleadings (Dkt. 11) be GRANTED because ALJ’s Greisler erred when
performing the supportability and consistency analyses as to Drs. Ferry
and Gaeta’s opinions and those errors were not harmless; and if the
District Court disagrees with that recommendation, it is
ALTERNATIVELY

RECOMMENDED, that the Commissioner’s motion for judgment
on the pleadings (Dkt. 16) be GRANTED because ALJ Greisler
properly accounted for Leighann’s moderate mental health limitations;
and it is further

RECOMMENDED, that the decision of the Commissioner be
REVERSED and REMANDED.

In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),

the parties have 14 days within which to file written objections to the

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foregoing report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); 28 U.S.C. § 636(b)(1);

Fed. R. Civ. P. 6(a), 6(e), 72.

Digitally signed by
Dated: March 24, 2026 Nt Mitchell J Katz
"y Date: 2026.03.24 11:59:57

ZL -04'00'
Hon. Mitchell J. Katz
U.S. Magistrate Judge

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