Brown v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
JACOB B.,
Plaintiff,
v. 	5:24-CV-01096
(LEK/ML)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
OLINSKY LAW GROUP 	HOWARD D. OLINSKY, ESQ.
Attorneys for Plaintiff
250 S. Clinton Street, Suite 210
Syracuse, New York 13202
U.S. SOCIAL SECURITY ADMIN. 	HUGH DUN RAPPAPORT, ESQ.
Counsel for Defendant
6401 Security Boulevard
Baltimore, Maryland 21235
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT-RECOMMENDATION
Plaintiff Jacob B. (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of a final decision of the Commissioner of Social Security (“Defendant” or
“Commissioner”) denying his applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). (Dkt. No. 1.) This matter was referred to me for Report
and Recommendation by the Honorable Lawrence E. Kahn, Senior United States District Court
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Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). (Dkt. No. 4,6.) This case has
proceeded in accordance with General Order 18.
Currently before this Court are Plaintiff’s motion for judgment on the pleadings and
Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 14, 18, 21.) For the reasons set
forth below, this Court recommends the District Court grant Plaintiff’s motion for judgment on
the pleadings, deny Defendant’s motion for judgment on the pleadings, and remand the
Commissioner’s decision for further administrative proceedings.
I. 	PROCEDURAL HISTORY
On April 2, 2022, Plaintiff protectively filed applications for DIB and SSI, alleging
disability dating from November 5, 2021. (Administrative Transcript (“T.”) 253-267.) His
applications were denied initially on January 3, 2023, and his request for administrative
reconsideration was denied on August 8, 2023. (T. 128-147, 152-166.) Plaintiff’s subsequent
request for a hearing was granted. (T. 169-170, 214-219.) On April 15, 2024, Plaintiff, who was
represented by counsel, testified before Administrative Law Judge (“ALJ”) Kenneth Theurer. (T.
41-72.) The ALJ issued an unfavorable decision on May 28, 2024. (T. 14-40.) The Appeals
Council denied Plaintiff’s request for review on July 25, 2024. (T. 1-6.)
Plaintiff commenced this proceeding on September 10, 2024 to challenge the
Commissioner’s denial of disability benefits. (Dkt. No. 1.)
II. 	GENERALLY APPLICABLE LAW
A. 	Scope of Review
In reviewing a final decision of the Commissioner, a court must determine whether the
correct legal standards were applied and whether substantial evidence supports the decision.
Featherly v. Astrue, 793 F. Supp. 2d 627, 630 (W.D.N.Y. 2011) (citations omitted); Rosado v.
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Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985
(2d Cir. 1987)). A reviewing court may not affirm the ALJ’s decision if it reasonably doubts
whether the proper legal standards were applied, even if the decision appears to be supported by
substantial evidence. Johnson, 817 F.2d at 986.
A court’s factual review of the Commissioner’s final decision is limited to the
determination of whether there is substantial evidence in the record to support the decision. 42
U.S.C. § 405(g) (2015); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). To facilitate the
court’s review, an ALJ must set forth the crucial factors justifying his or her findings with
sufficient specificity to allow a court to determine whether substantial evidence supports the
decision. Roat v. Barnhart, 717 F. Supp. 2d 241, 248 (N.D.N.Y. 2010); see also Ferraris v.
Heckler, 728 F.2d 582, 587 (2d Cir. 1984). “Substantial evidence has been defined as ‘such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must
be “more than a mere scintilla” of evidence scattered throughout the administrative record.
Featherly, 793 F. Supp. 2d at 630; Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers 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, 859 F.2d at 258 (citations omitted). Where substantial evidence
supports the ALJ’s findings they must be sustained “even where substantial evidence may
support the plaintiff’s positions and despite that the court’s independent analysis of the evidence
may differ from the [ALJ’s].” Rosado, 805 F. Supp. at 153. In other words, a reviewing court
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cannot substitute its interpretation of the administrative record for that of the Commissioner if
the record contains substantial support for the ALJ’s decision. Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982).
B. 	Standard for Benefits1
To be considered disabled, a plaintiff-claimant seeking benefits must establish that he or
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 twelve months.” 42
U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff-claimant’s
physical or mental impairment or impairments [must be] of such
severity that he is not only unable to do his previous work but
cannot, considering his 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 he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied
for work.
Id. § 1382c(a)(3)(B).
Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a)), the Social
Security Administration (“SSA”) promulgated regulations establishing a five-step sequential
evaluation process to determine disability. 20 C.F.R. § 416.920(a)(4) (2015). Under that five-
step sequential evaluation process, the decision-maker determines:
(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
1 The requirements for establishing disability under Title XVI, 42 U.S.C. § 1382c(a)(3)
and Title II, 42 U.S.C. § 423(d), are identical, so that “decisions under these sections are cited
interchangeably.” Donato v. Sec’y of Health and Human Servs., 721 F.2d 414, 418 n.3 (2d Cir.
1983) (citation omitted).
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equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a “residual functional capacity”
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 residual functional
capacity, age, education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or
non-disability can be made, the SSA will not review the claim further.” Barnhart v. Thomas,
540 U.S. 20, 24 (2003).
III. 	FACTS
On his alleged onset date, Plaintiff was 32 years old. (T. 245, 255.) His employment
history includes work as a custodian at a retail store, resident aide at a dementia care facility, and
most recently, staff member at a youth care facility. (T. 49-56, 381.) Plaintiff testified that he did
not have any direct care responsibilities at these care facilities, but worked as an observer or
monitor who would call trained staff when clients needed assistance. (T. 52-54.)
Plaintiff attended regular education classes through most of high school until suffering a
traumatic brain injury (“TBI”) during his senior year. (T. 401, 414.) Plaintiff eventually returned
to school with special education assistance, graduated, and attended two years of college. (T.
300, 401-402, 414, 3861, 3866.) Plaintiff has a history of memory deficits attributable to his
TBI, along with personality changes that present as difficulties with anger management and
socialization. (T. 60-61, 419-421. 4194-4195.) He also experiences seizures, some of which
have caused falls that injured his shoulders and back. (T. 56-57, 61, 388-389, 509, 589, 3249-
3250, 3866, 4222-4223, 4549, 4625.) He has been hospitalized multiple times for seizure
complications and mental health issues, including suicidal ideation. (T. 433, 436, 447, 478, 509,
555, 589, 1174, 1818, 2163, 4221, 4625, 4751.)
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The record includes Plaintiff’s medical and mental health treatment history. Rather than
summarizing the records at the outset, I will refer to the pertinent records during my discussion
of Plaintiff’s arguments.
IV. 	THE ALJ’S DECISION
As an initial matter, the ALJ determined that Plaintiff met the insured status requirements
through December 31, 2026. (T. 19.) Based upon his review of the administrative record, the
ALJ next found that Plaintiff had not engaged in substantial gainful activity since November 5,
2021, the alleged onset date. (Id.) At step two, the ALJ found that Plaintiff has the following
severe impairments: “traumatic brain injury, seizures, fracture of shoulders, anxiety disorder,
depressive disorder, and neurocognitive disorder.” (T. 20.)
At step three of the evaluation, the ALJ found that Plaintiff’s impairments either singly or
in combination did not meet or medically equal the severity of a listed impairment, including
Listing 1.18 (abnormality of a major joint(s) in any extremity), Listing 11.02 (epilepsy), Listing
11.18 (TBI), Listing 12.02 (neurocognitive disorders), Listing 12.04 (depressive, bipolar and
related disorders), and Listing 12.06 (anxiety and obsessive-compulsive disorders). (T. 20-24.)
Next, the ALJ found that Plaintiff could perform less than the full range of light work. (T. 24-
32.) Specifically, he found that Plaintiff
can occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, sit
for up to six hours, and stand or walk for approximately six hours in an eight-hour
day with normal breaks; occasionally climb ramps or stairs; never climb ladders,
ropes, or scaffolds; can perform occasional balancing, stooping, kneeling,
crouching, and crawling; no more than occasional overhead reaching; should
avoid work at unprotected heights or in conjunction with dangerous machinery;
should avoid exposure to concentrations of smoke, dust, or respiratory irritants;
[his] work is limited to carrying out simple instructions in a work environment
that does not involve a specific production-rate pace, as would be experienced on
an assembly line or an hourly production quota, involving simple, work-related
decisions with occasional changes in the routine work setting; and [he] can
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interact with co-workers, supervisors, and the public on an occasional basis
throughout the workday.
(T. 24.)
In making this RFC determination, the ALJ stated that he considered all of Plaintiff’s
symptoms, and the extent to which those symptoms could “reasonably be accepted as consistent
with the objective medical evidence and other evidence, based on the requirements of 20 C.F.R.
404.1529 and 416.929” and Social Security Ruling (“SSR”) 16-3p. (Id.) The ALJ further stated
that he considered opinion evidence and prior administrative medical findings in accordance with
20 C.F.R. § 404.1520c and 416.920c. (Id.) The ALJ also considered Plaintiff’s subjective
complaints regarding pain, symptoms, and functional limitations and found that his “statements
concerning the intensity, persistence, and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record . . . .” (T. 30.)
At step four, the ALJ found that Plaintiff was not capable of performing his past relevant
work. (T. 32.) Relying on the VE testimony, the ALJ next found that, during the relevant period,
Plaintiff was capable of performing jobs that existed in significant numbers in the national
economy. (T. 33-34.) Thus, the ALJ found that Plaintiff was not disabled from the alleged onset
date of November 5, 2021 through the date of the ALJ’s decision. (T. 34.)
V. 	ISSUES IN CONTENTION
Plaintiff argues that remand for further administrative proceedings is necessary because
the ALJ lacked substantial evidence to support his step three determination that Plaintiff’s mental
health impairments did not meet or equal Listing 12.02.2 (Dkt. No. 14 at 11-20; Dkt. No. 21 at 1-
2 Plaintiff’s brief makes passing reference to a purported failure to sufficiently evaluate
Listing 11.02 but does not pursue this argument. (Dkt. No. 14 at 11.)
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6.) Specifically, Plaintiff argues that the ALJ failed to properly consider the “paragraph B” and
“paragraph C” criteria applicable to Plaintiff’s neurocognitive disorders. (Id.) The
Commissioner contends that the ALJ’s step three determination and overall disability
determination were supported by substantial evidence. (Dkt. No. 18 at 4-14.)
For the reasons set forth below, this Court recommends that Plaintiff’s motion for
judgment on the pleadings be granted, Defendant’s motion for judgment on the pleadings be
denied, and this case be remanded to the Social Security Administration for further
administrative proceedings to allow further development of the record, proper consideration of
the Listing criteria, and reevaluation of the ultimate determination of disability.
VI. 	LEGAL STANDARDS
A. 	Listed Impairments Generally
The Listing of Impairments describes physical or mental impairments considered severe
enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience. 20 C.F.R. § 404.1525(a); see also Pratt v. Astrue, No. 7:06-CV-
0551 (LEK/DRH), 2008 WL 2594430, at *6 (N.D.N.Y. June 27, 2008) (“If a claimant's
impairment or combination of impairments meets or equals a listed impairment, the evaluation
process is concluded and the claimant is considered disabled ....”) (citation omitted). Plaintiff
has the burden of proof at step three to show that his impairments meet or medically equal a
Listing. Rockwood v. Astrue, 614 F. Supp. 2d 252, 272 (N.D.N.Y. 2009) (citing Naegele v.
Barnhart, 433 F. Supp. 2d 319, 324 (W.D.N.Y. 2006)). “To meet a Listing, Plaintiff must show
that her medically determinable impairment satisfies all of the specified criteria in a Listing.”
Rockwood, 614 F. Supp. 2d at 272 (citing 20 C.F.R. § 404.1525(d)). “If a claimant’s impairment
‘manifests only some of those criteria, no matter how severely,’ such impairment does not
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qualify.” Id., 614 F. Supp. 2d at 272 (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)).
Additionally, a court may uphold an ALJ’s finding that a claimant does not meet a Listing even
where the decision lacks an express rationale for that finding if the determination is supported by
substantial evidence. Id., 614 F. Supp. 2d at 273 (citing Berry, 675 F.2d at 468).
An ALJ is required to provide an explanation “as to why the claimant failed to meet or
equal the Listings, ‘[w]here the claimant's symptoms as described by the medical evidence
appear to match those described in the Listings.’ ” Id. at 273 (quoting Kuleszo v. Barnhart, 232
F. Supp. 2d 44, 52 (W.D.N.Y. 2002)). “[I]t is the ALJ's responsibility ... to build an accurate and
logical bridge from the evidence to [his or her] conclusion to enable a meaningful review,” and
“[t]he Court cannot ... conduct a review that is both limited and meaningful if the ALJ does not
state with sufficient clarity the legal rules being applied and the weight accorded the evidence
considered.” Loescher v. Berryhill, No. 16-CV-300-FPG, 2017 WL 1433338, at *3 (W.D.N.Y.
Apr. 24, 2017). However, “[a]n ALJ's unexplained conclusion [at step three] of the analysis may
be upheld where other portions of the decision and other ‘clearly credible evidence’ demonstrate
that the conclusion is supported by substantial evidence.” Ryan v. Astrue, 5 F. Supp. 3d 493, 507
(S.D.N.Y. 2014) (citation omitted).
B. 	Listing 12.02 (Neurocognitive Disorders)
Listing 12.02 applies to neurocognitive disorders, which are disorders “characterized by a
clinically significant decline in cognitive functioning.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.02 (2004). An individual can meet or equal Listing 12.02 if their severe impairment meets
the criteria set forth in either paragraph A and either paragraph B or C of that Listing. Id.
Paragraph A requires “medical documentation of a significant cognitive decline from a prior
level of functioning” in one or more of the following cognitive areas: (1) complex attention (2)
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executive function; (3) learning and memory; (4) language; (5) perceptual motor; or (6) social
cognition. Id.
Paragraph B requires an extreme limitation in one or marked limitations in two of four
areas of mental functioning: (1) understanding, remembering, or applying information; (2)
interacting with others; (3) concentrating, persisting, or maintaining pace; or (4) adapting or
managing oneself. Id. Paragraph C requires that the mental impairment be “serious and
persistent,” such that the individual has a “medically documented history” of the neurocognitive
disorder of at least two years duration along with evidence of both (1) medical treatment, mental
health therapy, psychosocial support(s) or a highly structured setting(s) that is ongoing and that
diminishes the symptoms and signs of the mental disorder; and (2) marginal adjustment, that is,
the individual has “minimal capacity to adapt to changes in your environment or to demands that
are not already part of your daily life.” Id.
VII. 	THE ALJ’S ANALYSIS OF LISTING 12.02 WAS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE.
A. Summary of ALJ’s Analysis of Listing 12.02
The ALJ’s step three determination considered whether Plaintiff’s mental health
impairments satisfied the paragraph B and paragraph C criteria of Listing 12.02. (T. 21-24.)
Although the ALJ did not specifically address the “paragraph A” criteria in his decision, the
Court may reasonably assume that the ALJ found Plaintiff to satisfy these criteria for Listing
12.02. See Parker v. Comm’r of Soc. Sec., No. 18 Civ. 3814 (PAE) (HBP), 2019 WL 6833413,
at *16 n.14 (S.D.N.Y. July 19, 2019) (collecting cases where court assumed the ALJ found that
claimant met paragraph A criteria where those criteria were not expressly addressed in decision,
and the ALJ considered only paragraphs B and C.) Such a finding is supported by the record,
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which provides examples of Plaintiff’s difficulties with memory and concentration, blackout
episodes, emotional outbursts, and emergency psychiatric treatment that are consistent with the
paragraph A criteria. (T. 402-403, 433, 436, 447, 453, 478, 1174, 1818, 2170.)
Addressing “Paragraph B,” the ALJ noted that Dr. M. Momot-Baker, the non-examining
state agency consultant who reviewed Plaintiff’s then-current psychiatric records in July 2023,
considered the paragraph B criteria for Listings 12.02, 12.04, and 12.06, and opined that Plaintiff
had no more than moderate limitations in any of the four functional areas. (T. 23, 111, 115-117.)
Dr. Momot-Baker also opined that Plaintiff’s impairments did not satisfy the paragraph C
criteria. (T. 23, 112.) The ALJ deemed Dr. Momot-Baker’s opinion to be “persuasive” because
he found it “supported by her review of the available evidence of record and the detailed
explanation she furnished for her opinion,” and “consistent with the evidence of record that was
available to her.” (T. 23.)
The ALJ also reviewed some of the evidence relevant to each of the four functional areas.
(T. 21-23.) For example, with regard to understanding, remembering, or applying information,
the ALJ cited Plaintiff’s own reports that his cognitive issues affected his ability to remember
appointments and made it difficult to follow some complex instructions, as well as Plaintiff’s
testimony regarding troubles with short and long-term memory after his TBI. (T. 21, 56, 60-61,
341, 344.) The ALJ also considered the results of a July 3, 2023 consultative psychiatric
examination conducted by Dr. Dante Alexander, who found Plaintiff’s “recent and remote
memory skills to be mildly impaired, due to his nervousness in the evaluation,” but opined that
Plaintiff retained “good judgment,” and “intellectual functioning in the average range.” (T. 21,
3863.) This review prompted the ALJ to conclude that Plaintiff had moderate limitations in this
area.
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The ALJ also determined that Plaintiff had moderate limitations in his ability to interact
with others. (T. 21.) The ALJ cited Plaintiff’s self-assessment that
he had no one with whom he could visit; that he shopped in stores; that he spent
time with others in person, on the phone, and via texting; that he socialized with
his downstairs neighbors; that he did not have a social life; that he did not need
anyone to accompany him when he went places; that he had no problems getting
along with family, friends, neighbors, or others; that everyone seemed to like him;
that he got along fine with authority figures; and that he had never been fired or
laid off from a job because of problems getting along with people.
(T. 21, 342-343.)
The ALJ also considered Plaintiff’s testimony that “he does not talk to people; that he
cannot visit or see people; that he does not have the extra money to go out and see people, so
they do not see him; that somedays he does not want to get out of bed, because of his depression
and anxiety, and that he has family nearby who help him.” (T. 22, 58-59, 63, 65.) In considering
this functional area, the ALJ again referenced Dr. Alexander’s consultative examination, and his
observation that Plaintiff was cooperative, with an adequate manner of relating, social skills, and
overall presentation. (T. 22, 3862.) He also cited Dr. Alexander’s observation that Plaintiff had
normal motor behavior and appropriate eye contact, fluent speech, and adequate expressive and
receptive language. (T. 22, 3862.)
In the area of concentration, persistence, and pace, the ALJ found that moderate
limitations were consistent with Plaintiff’s subjective description of his symptoms and the
psychiatric consultative examination results. (T. 22.) The ALJ noted Plaintiff’s report that
his illnesses, injuries, or conditions had affected his concentration and ability to
complete tasks; that he could not concentrate if there were noises; that he could
pay attention for hours; that he did not finish what he started; that he was able to
count change, handle a savings account, and use a checkbook/money orders; and
that he could not pay bills, because he could not work, and had no money to pay
bills.
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(T. 22, 344.) The ALJ also cited Plaintiff’s hearing testimony that he “uses a cell phone; that it is
hard for him to focus on things; and that he can get easily overwhelmed by too many things
going on, or by too much noise or action.” (T. 22, 58, 64.)
As before, the ALJ referenced the results of Dr. Alexander’s consultative psychiatric
examination. (T. 22.) This included his observations that Plaintiff had intact attention and
concentration; coherent and goal-directed thought processes; and appropriate orientation to
person, place, and time. (T. 22, 3862.)
Finally, with regard to adapting or managing oneself, the ALJ again relied on Plaintiff’s
subjective self-assessments and the consultative psychiatric examination results to determine that
Plaintiff had moderate limitations in this functional area. (T. 22-23.) In particular, the ALJ
referenced Plaintiff’s report that
he handled stress well; that he handled changes in routine well and with ease; that
he had been approved for TBI waiver services; that he would be receiving service
coordination and other services to assist him in staying more independent in the
community; that he used to go on vacations and travel; that he did not hike like he
used to; that he could not find pleasure like he once did; and that his illnesses,
injuries, or conditions affected his sleep, because he tossed and turned at night.
(T. 22, 340, 343, 346.) The ALJ also summarized Plaintiff’s hearing testimony that “some days
[he] does not want to get out of bed, due to his anxiety and depression, and that this can occur for
weeks at a time, or just every other day.” (T. 22, 64.)
Referring to the consultative psychiatric examination again, the ALJ noted Dr.
Alexander’s observation that Plaintiff was appropriately dressed, with “satisfactory” personal
hygiene and grooming. (T. 22, 3862.) Dr. Alexander also opined that Plaintiff’s insight and
judgment were “good” and noted Plaintiff’s reports that he could microwave his own food; knew
how to clean, do laundry, and shop; and socialized with family and friends. (T. 22-23, 3863.)
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For those reasons, the ALJ found that Plaintiff’s “mental impairments do not cause at
least one extreme limitation or two marked limitations,” and thus failed to satisfy the paragraph
B criteria. (T. 23.) The ALJ also found that Plaintiff did not satisfy the applicable paragraph C
criteria, because
[t]he record does not demonstrate that [Plaintiff] has had only marginal
adjustment, that is, a minimal capacity to adapt to changes in [Plaintiff’s]
environment or to demands that are not already part of [Plaintiff’s] daily life.
There is nothing of record to suggest that [Plaintiff] has required a highly
structured setting to diminish the symptoms and signs of his psychiatric condition
during the period under consideration, and that, despite the diminished symptoms
and signs, he has achieved only marginal adjustment.
(T. 23.)
B. Remand is Recommended Because the ALJ’s Analysis of the Paragraph B and
Paragraph C Criteria for Listing 12.02 is Not Supported by Substantial
Evidence.
Plaintiff contends that the ALJ’s step three analysis overlooks or ignores record evidence
suggestive of greater restrictions that would satisfy paragraph B or paragraph C for Listing
12.02. (Dkt. No. 14 at 11-20; Dkt. No. 21 at 1-6.) This Court agrees with Plaintiff that the ALJ
made a series of harmful errors in evaluating the paragraph B and paragraph C criteria in
connection with Listing 12.02. Therefore, I recommend remand for further consideration of the
Listings and further development of the record as necessary.
To begin with, the ALJ’s almost exclusive reliance on the results of a single consultative
psychiatric examination results form a questionable foundation for his evaluation of Listing
12.02. See Sheenalee D. v. Comm’r of Soc. Sec., No. 8:19-CV-140 (TJM/ATB), 2020 WL
1034396, at *5 (N.D.N.Y. February 3, 2020) (recommending remand where ALJ’s paragraph B
analysis was based solely on single consultative examination report); rep’t and rec. adopted,
2020 WL 1030652 (N.D.N.Y. Mar. 3, 2020). The Second Circuit has “frequently cautioned that
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ALJs should not rely heavily on the findings of consultative physicians after a single
examination . . . . This is even more pronounced in the context of mental illness where ... a one-
time snapshot of a claimant's status may not be indicative of [his] longitudinal mental health.”
Estrella v. Berryhill, 925 F.3d 90, 98 (2d Cir. 2019). (internal quotations omitted).
The ALJ also cited Plaintiff’s testimony and self-reporting of his symptoms as a basis for
his determination that Plaintiff did not satisfy Listing 12.02. That reasoning also appears weak.
While taking Plaintiff’s testimony, the ALJ recognized that Plaintiff’s TBI left him with “pretty
significant memory problems.” (T. 51.) That assessment is consistent with treatment notes
describing Plaintiff as a “poor [health] historian due to severe memory impairment.” (T. 574,
4193.) It thus appears questionable under those circumstances for the ALJ to rely on Plaintiff’s
testimony that “he had no problems getting along with family, friends, neighbors, or others” at
step three without also considering multiple examples in the record of interpersonal conflict and
behavioral problems that required hospitalization. (T. 21-22, 433, 436, 661, 1174, 1818, 2556,
2559-2560, 2575.) Likewise, Plaintiff’s self-assessment of his activities of daily living conflicts
with multiple treatment sources who expressed concern about Plaintiff’s ability to live
independently. (T. 2180, 2202, 2516-2517, 2532-2533, 2556.). Although an ALJ has discretion
to credit Plaintiff’s testimony over conflicting medical evidence, see Brenda W. v. Comm’r of
Soc. Sec., No. 1:22-CV-00803 (TPK), 2025 WL 1751984, at *5 (W.D.N.Y. June 25, 2025), that
discretion is not unlimited. See Natalie J. v. Comm'r of Soc. Sec., No. 5:23-CV-00692
(DNH/ML), 2024 WL 3206183, at *7 (N.D.N.Y. June 11, 2024), rep’t and rec. adopted, 2024
WL 3202394 (N.D.N.Y. June 27, 2024) (questioning ALJ’s reliance on plaintiff’s subjective
assessment of her own psychiatric symptoms without addressing multiple treatment notes
describing Plaintiff as an unreliable historian of her mental health).
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The ALJ’s limited inquiry in these matters illustrates a broader failure to consider
potentially conflicting evidence and leads this Court to recommend remand for reconsideration
of Listing 12.02 and the step three determination. See Sheenalee D., 2020 WL 1034396, at *5
(“A full review of the medical record reveals evidence suggesting plaintiff may have suffered a
marked limitation in one or more of the paragraph (B) criteria. Thus, further clarification as to
why plaintiff’s symptoms do or do not meet the listing requirements is necessary, because the
ALJ did not discuss how he considered the various medical records and opinions suggesting that
plaintiff suffered marked limitations.”). Most notably, Plaintiff had multiple psychiatric
hospitalizations after the alleged onset date. (T. 434, 436, 447, 478, 491, 1818.) This included
hospitalizations of three days in May 2022, seven days in July 2022, eleven days in September
2022, and thirty-two days between October and November 2022, all due to behavioral issues and
suicidal ideation. (T. 434, 478, 491, 1826-1829, 1860, 2167-2169, 2213, 2237.) His discharge
from the hospital in November 2022 was delayed in part due to difficulties finding adequate
support programs for Plaintiff, who was considered “unable to care for self.” (T. 2167, 2170,
2177, 2180, 2183, 2185, 2188, 2190, 2197, 2202, 2514, 2517-2518, 2532-2534, 2556.)
Treatment notes document his providers’ preference for discharge to a residential program, but
none were available. (T. 2202.) At the time of his hearing, Plaintiff was enrolled in an outpatient
TBI program described as a “Structured Day Program” that includes activities targeted at
increasing his socialization skills. (T. 4193-4196.) Treatment documents indicate that Plaintiff’s
memory deficits have been an obstacle to his progress in this program. (T. 4195-4196.)
The above record evidence directly bears on the paragraph B and paragraph C criteria for
Listing 12.02, but the ALJ did not discuss any of it during his step three analysis. (T. 20-24.) It
is legal error for an ALJ to reject substantial conflicting evidence at step three without adequate
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explanation. Brittany F. v. Comm'r of Soc. Sec. Admin., No. 1:18-CV-1365 (ATB), 2020 WL
838076, at *5 (N.D.N.Y. Feb. 19, 2020); see also Briest v. Comm'r of Soc. Sec., No. 5:07-CV-
121 (FJS), 2010 WL 5285307, at *3 (N.D.N.Y. Dec. 17, 2010) (remanding where ALJ did not
address contradictory medical evidence when considering paragraph B criteria); Szarowicz v.
Astrue, No. 11-CV-277S, 2012 WL 3095798, at *5 (W.D.N.Y. July 30, 2012) (“It is particularly
important for an ALJ to specifically address conflicting probative evidence with respect to the
step three analysis, because a claimant whose condition meets or equals that of a Listing is
deemed disabled per se and eligible to receive benefits.”)
The Commissioner correctly asserts that the ALJ “need not recite every piece of evidence
that contributed to the decision.” Cichocki v. Astrue, 729 F.3d 172, 178, n.3 (2d Cir. 2013). It is
also true an ALJ is not required, in every instance, to provide an express explanation for
concluding that a claimant's impairments fail to meet or equal the requirements of a Listing. See
Jonisha M. G. v. Comm'r of Soc. Sec., No. 5:22-CV-1412 (TWD), 2024 WL 1219696, at *5
(N.D.N.Y. Mar. 21, 2024) (collecting cases). Still, an ALJ must “build an accurate and logical
bridge from the evidence to [his]conclusion to enable a meaningful review.” Pamela P. v. Saul,
No. 3:19-CV-575 (DJS), 2020 WL 2561106, at *4 (N.D.N.Y. May 20, 2020) (quoting Steele v.
Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)). That bridge is lacking here, due to the amount of
omitted evidence suggestive of greater than moderate limitations in at least of two of the four
relevant functional areas under paragraph B of Listing 12.02, and evidence of ongoing treatment
for cognitive deficits attributable to Plaintiff’s TBI that likely bears on the paragraph C criteria.
See Prieto v. Comm'r of Soc. Sec., No. 20-CV-3941 (RWL), 2021 WL 3475625, at *15
(S.D.N.Y. Aug. 6, 2021) (“where there is record evidence that appears to support a conclusion
that most or all of the elements of a Listing are met, an ALJ must explain why a claimant’s
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condition does not satisfy the Listing.); Kuleszo v. Barnhart, 232 F. Supp.2d 44, 52 (W.D.N.Y.
2002) (“Where the claimant's symptoms, as described by the medical evidence, appear to match
those described in the Listings, the ALJ must provide an explanation as to why the claimant
failed to meet or equal the Listings”).
The Commissioner also correctly describes the principle that “[a]n ALJ's [step three
determination based on a deficient analysis] may be upheld where other portions of the decision
and other ‘clearly credible evidence’ demonstrate that the conclusion is supported by substantial
evidence.” Ryan v. Astrue, 5 F. Supp. 3d 493, 507 (S.D.N.Y. 2014) (citation omitted). Indeed,
the ALJ in this case did catalog some of Plaintiff’s history of psychiatric hospitalization and TBI
support programs as part of his RFC analysis. (T. 25-28.) However, at no point did the ALJ
attempt to reconcile this conflicting evidence with the moderate restrictions that formed the basis
of his step three analysis, RFC evaluation, and ultimate disability determination.
This omission prevents this Court from determining whether the ALJ’s step three
determination is supported by substantial evidence, prompting my recommendation for remand
so that the ALJ may address the conflicting record evidence and adequately explain his reasoning
as to why plaintiff meets or does not meet the paragraph B and paragraph C criteria. See Flake v.
Comm'r of Soc. Sec., No. 7:15-CV-1128 (GTS/WBC), 2016 WL 7017355, at *6 (N.D.N.Y. Nov.
10, 2016) (“There is conflicting evidence in the record regarding whether Plaintiff met the
criteria for [the relevant listing] and because the ALJ failed to discuss this conflicting evidence,
at step three or elsewhere, it cannot be determined whether the ALJ's conclusion at step three is
supported by substantial evidence.”).
ACCORDINGLY, it is
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RECOMMENDED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 14)
be GRANTED; Defendant’s motion for judgment on the pleadings (Dkt. No. 18) be DENIED
and that the matter be REVERSED AND REMANDED to the Commissioner pursuant to
sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and
Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have 14 days within which to file written
objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN 14 DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72.
Dated:
Binghamton, New York
November 17, 2025
Binghamton, NY
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