O'Dett v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
NICOLE O.,
Plaintiff,
v. 	5:24-CV-01221
(MAD/ML)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
HILLER COMERFORD 	JUSTIN M. GOLDSTEIN, ESQ.
INJURY & DISABILITY LAW 	MARY ELLEN GILL, ESQ.
Attorneys for Plaintiff
6000 North Bailey Avenue - Suite 1A
Amherst, New York 14226
U.S. SOCIAL SECURITY ADMIN. 	MOLLY CARTER, ESQ.
Counsel for Defendant
6401 Security Boulevard
Baltimore, Maryland 21235
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT-RECOMMENDATION
Plaintiff Nicole O. (“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 her application for Disability Insurance Benefits (“DIB”). (Dkt. No.
1.) This matter was referred to me for Report and Recommendation by the Honorable Mae A.
D’Agostino, United States District Court Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule
72.3(d). (Dkt. Nos. 3, 4.) This case has proceeded in accordance with General Order 18.
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 1 of 17

2
Currently before this Court are Plaintiff’s motion for judgment on the pleadings and Defendant’s
motion for judgment on the pleadings. (Dkt. Nos. 13, 16, 17.) For the reasons set forth below,
this Court recommends that the District Court grant Defendant’s motion for judgment on the
pleadings and affirm the Commissioner’s decision.
I. 	PROCEDURAL HISTORY
On April 13, 2022, Plaintiff protectively filed an application for DIB alleging disability
dating from April 4, 2022. (Administrative Transcript (“T.”) 194-200.) Her application was
denied initially on September 14, 2022, and her request for administrative reconsideration was
denied on December 12, 2022. (T. 58-88, 96-117.) Plaintiff’s request for a hearing was granted.
(T. 118-119, 160-164.) On December 14, 2023, Plaintiff and vocational expert (“VE”) Christine
DiTrinco testified by telephone before Administrative Law Judge (“ALJ”) Kenneth Theurer. (T.
37-57.)
The ALJ issued an unfavorable decision on January 11, 2024 and the Appeals Council
denied Plaintiff’s request for review on August 8, 2024. (T. 1-6, 14-36.) Plaintiff commenced
this proceeding on October 4, 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.
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
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 2 of 17

3
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
cannot substitute its interpretation of the administrative record for that of the Commissioner if
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 3 of 17

4
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
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a “residual functional capacity”
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).
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 4 of 17

5
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
As of the date of the ALJ’s decision, Plaintiff was 49 years old. (T. 194.) She is a high
school graduate and has completed some college courses. (T. 43, 47, 242, 555.) She worked for
over twenty years as a supervisor and manager at a residential home for individuals with
disabilities. (T. 43, 555.) Her responsibilities in this role ranged from direct client care to
administrative tasks such as hiring and scheduling. (T. 44-45.) She resigned from this position in
October 2021. (T. 46.) She worked briefly as a substitute teacher but left this position in October
2022 due to medical problems. (T. 550, 555.)
Plaintiff was hospitalized in January 2022 for extreme abdominal pain and was diagnosed
with splenic infarct, a condition where clots block blood flow to the spleen. (T. 381, 550, 864.)
Her condition responded to blood thinners, so surgery was deemed unnecessary. (T. 864, 889.)
Since that hospitalization, Plaintiff has been treated with anticoagulants and received iron
infusions to address diagnosed anemia. (T. 889, 960.) Despite ongoing treatment, Plaintiff has
experienced nausea, constipation, gastrointestinal pain, fatigue, and joint pain. (T. 47, 960.) Her
primary care physician prescribed medication for depression symptoms, but Plaintiff has not
received any formal mental health treatment during the period under review. (T. 48, 555.)
The record includes Plaintiff’s relevant medical history. Rather than summarizing the
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 5 of 17

6
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 found that Plaintiff had not engaged in substantial gainful activity after the alleged onset
date of April 4, 2022. (Id.) At step two, the ALJ found that Plaintiff has the following severe
impairments: “hypothyroidism, type 1 diabetes mellitus, anemia, and gastritis.” 2 (T. 20-24.)
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 5.06 (inflammatory bowel disease), Listing 7.05 (hemolytic anemias, including sickle
cell disease, thalassemia, and their variants), and Listing 9.00 (endocrine disorders). (T. 24-25.)
Next, the ALJ found that Plaintiff could perform less than the full range of light work. (T. 25-
30.) 	Specifically, the ALJ found that Plaintiff:
can occasionally lift and carry twenty pounds, she can frequently lift and carry ten
pounds, she can sit up to six hours, and can stand or walk for approximately six
hours in an eight hour workday with normal breaks, she can occasionally climb
ramps or stairs, she can never climb ladders, ropes, or scaffolds, and she can
perform occasional balancing, stooping, kneeling, crouching and crawling. In
addition, she should have ready access to a restroom.
(T. 25-26.)
In making the 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
2 Gastritis is an inflammation of the stomach lining. https://my.clevelandclinic.org/
health/ diseases/10349-gastritis [https://perma.cc/MY6A-C48G]
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 6 of 17

7
with the objective medical evidence and other evidence, based on the requirements of 20 C.F.R.
404.1529” and Social Security Ruling (“SSR”) 16-3p. (T. 26.) The ALJ further stated that he
considered opinion evidence and prior administrative medical findings in accordance with 20
C.F.R. §§ 404.1520c. (Id.) The ALJ also considered Plaintiff’s subjective complaints regarding
pain, symptoms, and functional limitations raised during the hearing and in the overall
administrative record and found them “not entirely consistent with the medical evidence and
other evidence in the record . . .” (Id.)
At step four, the ALJ found that Plaintiff was not capable of performing her past relevant
work. (T. 30-31.) Relying on the VE testimony, the ALJ next found that Plaintiff was capable of
performing jobs that existed in significant numbers in the national economy. (T. 31-32.) Thus,
the ALJ found that Plaintiff was not disabled from the alleged onset date of April 4, 2022
through the date of the ALJ’s decision. (T. 32.)
V. 	ISSUES IN CONTENTION
Plaintiff argues that the ALJ’s RFC determination fails to appropriately account for the
limitations imposed by her gastrointestinal impairments by failing to specify how frequently she
would require breaks or be off-task due to her need to use the restroom. (Dkt. No. 13-1 at 9-12.)
In addition, Plaintiff contends that the ALJ failed to adequately account for the mental health
limitations set forth in the consultative psychiatric opinion of Dr. Dennis Noia. (Dkt. No. 13-1 at
12-14.) The Commissioner contends that the ALJ’s RFC determination and ultimate disability
determination were supported by substantial evidence. (Dkt. No. 16 at 4-11.)
For the reasons set forth below, this Court recommends that the District Court deny
Plaintiff’s motion for judgment on the pleadings, grant Defendant’s motion for judgment on the
pleadings, and affirm the Commissioner’s decision.
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 7 of 17

8
VI. 	RFC AND MEDICAL OPINION EVIDENCE
A. 	Legal Standards
1. 	RFC
RFC is “what [the] individual can still do despite his or her limitations. Ordinarily, RFC
is the individual’s maximum remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis. . . .” A “regular and continuing basis” means
eight hours a day, for five days a week, or an equivalent work schedule. Balles v. Astrue, No.
3:11-CV-1386 (MAD), 2013 WL 252970, at *2 (N.D.N.Y. Jan. 23, 2013) (citing Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v.
Berryhill, No. 5:17-CV-00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018);
Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.
Supp. 3d 349, 361 (N.D.N.Y. 2016).
In rendering an RFC determination, the ALJ must consider objective medical facts,
diagnoses, and medical opinions based on such facts, as well as a plaintiff’s subjective
symptoms, including pain and descriptions of other limitations. 20 C.F.R. §§ 404.1545, 416.945.
See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999) (citing LaPorta v. Bowen, 737 F.
Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v. Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL
587459, at *8 (N.D.N.Y. Feb 13, 2019); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An
ALJ must specify the functions a plaintiff is capable of performing and may not simply make
conclusory statements regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241,
267 (N.D.N.Y. 2010); Martone, 70 F. Supp. 2d at 150 (citing Ferraris, 728 F.2d at 588; LaPorta,
737 F. Supp. at 183, Stephens v. Colvin, 200 F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v.
Comm’r of Soc. Sec., 307 F. Supp. 2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 8 of 17

9
also include a narrative discussion, describing how the evidence supports the ALJ’s conclusions,
citing specific medical facts, and non-medical evidence. Natashia R. v. Berryhill, No. 3:17-CV-
01266 (TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing SSR 96-8p, 1996
WL 374184, at *7).
2. 	Evaluating Medical Evidence
The regulations regarding the evaluation of medical evidence have been amended for
claims filed after March 27, 2017,3 and several of the prior Social Security Rulings, including
SSR 96-2p, have been rescinded. According to the new regulations, the Commissioner “will no
longer give any specific evidentiary weight to medical opinions; this includes giving controlling
weight to any medical opinion.” Revisions to Rules Regarding the Evaluation of Medical
Evidence (“Revisions to Rules”), 82 Fed. Reg. 5844, at 5867–68, 2017 WL 168819 (Jan. 18,
2017), see 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the Commissioner must consider all
medical opinions and “evaluate their persuasiveness” based on the following five factors:
supportability; consistency; relationship with the claimant; specialization; and “other factors.”
20 C.F.R. §§ 404.1520c(a)-(c), 416.920c(a)-(c).
Although the new regulations eliminate the perceived hierarchy of medical sources,
deference to specific medical opinions, and assigning “weight” to a medical opinion, the ALJ
must still “articulate how [he or she] considered the medical opinions” and “how persuasive [he
or she] find[s] all of the medical opinions.” Id. at §§ 404.1520c(a) and (b)(1), 416.920c(a) and
(b)(1). The two “most important factors for determining the persuasiveness of medical opinions
3 Plaintiff’s applications were protectively filed on April 13, 2022. (T. 194-200.) Thus,
the new regulations apply in this case.
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 9 of 17

10
are consistency and supportability,” which are the “same factors” that formed the foundation of
the treating source rule. Revisions to Rules, 82 Fed. Reg. 5844-01 at 5853.
An ALJ is specifically required to “explain how [he or she] considered the supportability
and consistency factors” for a medical opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
With respect to “supportability,” the new regulations provide that “[t]he more relevant the
objective medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) or prior administrative medical finding(s), the more
persuasive the medical opinions or prior administrative medical finding(s) will be.” Id. at §§
404.1520c(c)(1), 416.920c(c)(1). The regulations provide that with respect to “consistency,”
“[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the
evidence from other medical sources and nonmedical sources in the claim, the more persuasive
the medical opinion(s) or prior administrative medical finding(s) will be.” Id. at
§§ 404.1520c(c)(2), 416.920c(c)(2).
Under the new regulations an ALJ must consider, but need not explicitly discuss, the
three remaining factors in determining the persuasiveness of a medical source’s opinion. Id. at
§§ 404.1520c(b)(2), 416.920c(b)(2). However, where the ALJ has found two or more medical
opinions to be equally well supported and consistent with the record, but not exactly the same,
the ALJ must articulate how he or she considered those factors contained in paragraphs (c)(3)
through (c)(5). Id. at §§ 404.1520c(b)(3), 416.920c(b)(3).
B. 	The ALJ’s RFC Determination Regarding Plaintiff’s Need for Ready Access
to a Bathroom was Supported by Substantial Evidence.
In light of Plaintiff’s documented digestive and gastrointestinal issues, the ALJ included
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 10 of 17

11
“ready access to a restroom” as part of his RFC determination. (T. 26.) Plaintiff contends that
this is limitation is impermissibly vague because it does not specify how frequently she will need
breaks to use the restroom or how long she will be off-task due to her impairments. (Dkt. No. 13-
1 at 9-12.) This Court disagrees and finds that the ALJ’s RFC determination was sufficient in
light of the available record and supported by substantial evidence. Thus, Plaintiff’s argument
does not provide a basis for remand.
Although Plaintiff suggests that ALJ merely included the restroom accommodation “as
an afterthought” or “some sort of provision of a benefit of the doubt to Plaintiff,” the ALJ’s
decision devoted significant analysis to Plaintiff’s treatment history for digestive and
gastrointestinal issues and her response to that treatment, stating:
. . . [Plaintiff’s] anemia and gastritis responded well to treatment. [Plaintiff ]was
admitted to the Emergency Department for abdominal pain in January 2022. She
was treated for aortic thrombus without the need for acute surgical intervention,
and discharged as hemodynamically stable. On this occasion, she had
unexplained iron deficiency, and her thrombocystosis4 was found to be likely
reactive to her iron deficiency. Additional testing in the way of a hypercoagulable
work-up was ordered to determine if [Plaintiff] would be a better candidate for
warfarin therapy versus continuing direct oral anticoagulants (DOAC). [Plaintiff]
required iron transfusions due to her iron-deficiency anemia, but in October 2023,
she reported that she no longer needs iron transfusions, and she has felt better and
more energetic since she received the transfusions. In January 2022, when
[Plaintiff] was seen for upper abdominal pain, anemia, high white count, and high
platelets, imaging showed [Plaintiff] had an enlarged spleen and eccentric mural
thrombus in the aorta. Diagnostic images from January 2022 shows that
[Plaintiff] has splenic infarct. She did not need surgery and is prescribed
medication for this condition. It is of note that, later, in April 2022, CT imaging
showed that [Plaintiff’s] spleen was found to be borderline enlarged, but smaller
than on the previous study and the abnormal patchy low density area in the spleen
seen on the prior study was no longer visible. Ultrasound images of [Plaintiff’s]
abdomen from January 2023 were unremarkable. [Plaintiff] also has gastritis.
4 Thrombocytosis is a high blood platelet count that can lead to clots and complications
including heart attack and stroke. https://my.clevelandclinic.org/health/diseases/13350-
thrombocytosis [https://perma.cc/VEP6-HMTC].
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 11 of 17

12
Despite testifying that she required use of a restroom several times a day, progress
notes from August 2022 indicated that [Plaintiff] was negative for H. pylori5, and
treatment notes from January 2023 described her gastritis as mild. Efforts to
determine the etiology of [Plaintiff’s] symptoms resulted in a normal study of the
liver and normal gallbladder ejection fraction, which were both from February
2023. Similarly, a colonoscopy performed at the same time had insignificant
results. In addition, recent progress notes from June 2023 indicated that
[Plaintiff] experienced no recent weight changes associated with her gastritis.
There are times [Plaintiff] denied experiencing constipation, diarrhea, nausea, and
vomiting. The undersigned has nevertheless accounted for [Plaintiff’s] gastritis
and other gastrointestinal complaints, as well as her documented treatment for
these symptoms, by including ready access to a restroom.
(T. 28-29.) (internal citations omitted)
The ALJ also analyzed the evidence regarding time off-task more generally, stating:
The evidence does not support greater limitations due to off-task behavior and
excessive absences. For example, [Plaintiff] alleges that she is weak and
nauseous all the time and needs to rest after completing household tasks.
However, the records do not reflect her needing rest after exertion during medical
appointments. . . . Also the record does not suggest that she had a routine pattern
of missing, canceling, or being later for appointments. Moreover, [Plaintiff] has
only a mild limitation in concentration and attention, as evidenced by the
following: [Plaintiff’s] recent and remote memory skills were found to be
relatively intact during the consultative exam, and she was able to state 3 objects
immediately, 2 after a delay, 5 digits forward and 3 in reverse during the same
exam, as well as on another occasion, [Plaintiff’s] memory was intact and her
attention was normal during an appointment in January 2023. Furthermore, there
were also several occasions in the record wherein [Plaintiff] was alert and awake
while meeting with providers.
(T. 29.) (internal citation omitted)
Plaintiff has not challenged the accuracy of the ALJ’s summary of the record evidence,
and neither her brief nor this Court’s searching review of the record has identified any medical
opinion or other evidence suggesting that Plaintiff would be unable to complete a normal
5 Helicobacter pylori, or H. pylori, is a common bacterial stomach infection that can
cause stomach pain, bloating, gas, and more rarely, peptic ulcers in the stomach or intestines.
https://www.mayoclinic.org/diseases-conditions/h-pylori/symptoms-causes/syc-20356171
[https://perma.cc/AJD6-SBXJ]
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 12 of 17

13
workday because of her need to use the restroom. Thus, “[t]his is not a situation where the ALJ
failed to discuss the need for ready access to a bathroom or ignored medical opinions opining as
such.” See Ashley E. v. Comm’r of Soc. Sec., No. 6:22-CV-299 (GTS/CFH), 2023 WL
62117792, at *20 (N.D.N.Y. August 21, 2023) rep’t and rec. adopted, 2023 WL 6215829
(N.D.N.Y. Sept. 25, 2023). Indeed, the facts of this case are readily distinguishable from those
relied upon by Plaintiff in favor of remand. See, e.g., Dunsford v. Comm'r of Soc. Sec., No. 5:21-
CV-1167 (LEK), 2023 WL 2242083, at *8 (N.D.N.Y. Feb. 27, 2023) (remanding because
“despite finding [a medical] opinion that unscheduled bathroom breaks were needed, the ALJ’s
RFC omits the allowance for unscheduled bathroom breaks, and merely provides for [the
p]laintiff’s ‘access’ to a bathroom.”); Crystal C. v. Comm'r of Soc. Sec., No. 22-CV-6358
(MWP), 2023 WL 4781905, at *5 (W.D.N.Y. July 27, 2023) (remanding where ALJ ignored
treatment notes documenting Plaintiff’s need to use the restroom multiple times per hour); see
also Brian D. v. Comm'r of Soc. Sec., No. 3:21-CV-1368 (CFH), 2023 WL 1765429, at *8
(N.D.N.Y. Feb. 3, 2023) (“[T]he ALJ concluded that plaintiff ‘should have restrooms that are
readily accessible and available to’ him but did not explain how often plaintiff may need to take
breaks to use the restroom and whether those breaks would fall within the normal work schedule.
This is despite the medical opinions concluding that plaintiff would need to take a lot of breaks
and would struggle to maintain a schedule.”).
Likewise, there is no documentary or testimonial evidence to support Plaintiff’s
contention that her need to use the restroom would force her off-task beyond the typically
acceptable fifteen percent threshold identified by the VE. (T. 56.) Therefore, the ALJ’s analysis
of the VE testimony does not present grounds for remand. See Laurie A. T. v. Kijakazi, No.
8:21-CV-1071 (TJM/DEP), 2022 WL 17342044, at *10 n.10 (N.D.N.Y. Nov. 2, 2022), rep’t and
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 13 of 17

14
rec. adopted, 2022 WL 17338813 (N.D.N.Y. Nov. 30, 2022) (finding no basis for remand where
“there is no indication that plaintiff's need to use the restroom two-to-five times per day would
result in her being off-task in excess of the ten-percent threshold opined by the vocational
expert.”); Tina M. v. Comm'r of Soc. Sec., No. 19-CV-1481-LJV, 2021 WL 1298492, at *5-6
(W.D.N.Y. Apr. 7, 2021) (remanding where ALJ did not compare plaintiff’s testimony that she
needed to use the bathroom up to ten times per day against VE testimony that an employer would
likely tolerate a total of about fifty minutes off task each day).
Therefore, this Court finds that the ALJ’s evaluation of the evidence related to Plaintiff’s
need to use the restroom during the workday does not present any grounds to recommend
remand.
C. 	The ALJ’s Evaluation of Dr. Noia’s Consultative Psychiatric Opinion Was
Supported by Substantial Evidence.
Dr. Dennis Noia performed a consultative psychiatric examination of Plaintiff on August
30, 2022. (T. 555-558.) Prior to the examination, Plaintiff reported that her depression
symptoms were “usually controlled with medication” but that she still had difficulty sleeping,
excessive worry, and a concern that others did not listen to her. (T. 555.) During the
examination, Dr. Noia observed Plaintiff to have a cooperative and responsive demeanor with
adequate social skills. (T. 556.) She displayed coherent thought processes but reported feeling
stressed that day. (Id.) Dr. Noia opined that Plaintiff had intact attention and concentration, as
documented by her ability to performing counting exercises, simple calculations, and “serial 7s
from 100.”6 (Id.) He also opined that Plaintiff had “relatively intact” recent and remote memory
and average intellectual functioning. (T. 555-556.)
6 “Serial 7s” is a cognitive test that typically requires the patient to start at 100 and count
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 14 of 17

15
Based on his examination findings, Dr. Noia opined that Plaintiff showed no limitations
with regard to understanding, remembering, and applying simple or complex directions and
instructions, using reason and judgment to make work-related decisions, interacting adequately
with supervisors, coworkers, and the public, sustaining an ordinary routine and regular
attendance at work, maintaining personal hygiene and appropriate attire, and being aware of
normal hazards and taking appropriate precautions. (T. 557.) Dr. Noia further opined that
Plaintiff had “mild” limitations with regard to regulating emotions, controlling behaviors, and
maintaining well-being. (Id.) In Dr. Noia’s opinion, the results of his examination “appear to be
consistent with psychiatric problems and these may occasionally interfere with her ability to
function on a daily basis.” (Id.)
The ALJ found Dr. Noia’s opinion to be “persuasive” but elected not to adopt the opinion
in full. (T. 22-23.) In particular, the ALJ found record support for Dr. Noia’s opinions that
Plaintiff had no apparent limitations in her ability to use reason and judgment, sustain
concentration and perform tasks at a consistent pace, sustain an ordinary routine and regular
attendance at work, maintain personal hygiene and appropriate attire, and be aware of workplace
hazards. (T. 23.) The ALJ also found Dr. Noia’s conclusion that Plaintiff had no more than mild
memory impairment to be supported by the consultative examination report and the broader
treatment record. (T. 23, 341, 556-557, 678.) However, the ALJ found no evidence that Plaintiff
had even mild difficulty regulating her emotions, controlling her behavior, or maintaining her
well-being. (T. 23, 341, 808, 812, 963.) In particular, the ALJ cited Plaintiff’s behavior during
various medical appointments and the lack of any documented emotional outbursts or
down by repeatedly subtracting 7 (100 . . 93 . . .86, etc.). See Bey v. Comm’r of Soc. Sec., 21-
CV-7832 (KHP), 2023 WL 1098183, at *2 (S.D.N.Y. January 30, 2023) (summarizing test).
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 15 of 17

16
inappropriate behavior elsewhere in the record. (T. 23, 869, 906.) Based on this analysis, the
ALJ found Plaintiff’s mental health impairments to be non-severe at step two, and did not
include any psychiatric limitations in the RFC determination. (T. 22-23, 25-26, 29.)
Plaintiff’s brief focuses on Dr. Noia’s overall conclusion that psychiatric problems “may
occasionally interfere” with Plaintiff’s daily functions, interpreting this as the equivalent of an
occasional inability to maintain a routine and regular schedule. (Dkt. No. 13-1 at 12.) However,
this interpretation is contradicted by Dr. Noia’s actual function by function assessment, in which
the consultative examiner opined that Plaintiff had “no limitations” sustaining an ordinary
routine and regular attendance at work. (T. 557.)
More crucially, the ALJ’s decision includes a thorough analysis of Dr. Noia’s opinion
and Plaintiff’s mental health history, with the ALJ fully explaining his reasons for finding most
of the opinion persuasive and discounting the portion regarding regulation of emotion, control of
behavior, and maintenance of well-being. Carl D. v. Comm'r of Soc. Sec., No. 8:18-CV-1106
(DJS), 2019 WL 5537627, at *8 (N.D.N.Y. Oct. 25, 2019) (“. . . the ALJ is required to provide
rationale in the written decision sufficient to allow this Court to conduct an adequate review of
his findings.”) This analysis properly influenced both his step two determination that Plaintiff’s
mental health impairments were non-severe, and his decision to exclude mental health
limitations from the RFC. Parker-Grose v. Astrue, 462 F. App'x 16, 18 (2d Cir. 2012) (summary
order) (citing 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically determinable
impairments of which we are aware, including your medically determinable impairments that are
not ‘severe [ ]’ ... when we assess your [RFC] ...”)).
There is no requirement that the ALJ fully accept the opinion of a consultative examiner
concerning a claimant's limitations, and he may properly “credit those portions of a consultative
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 16 of 17

17
examiner's opinion which the ALJ finds supported by substantial evidence of record and reject
portions which are not so supported.” Deborah M. v. Kijakazi, No. 1:20-CV-1600 (FJS), 2022
WL 2274780, at *7 (N.D.N.Y. June 23, 2022) (collecting cases). The ALJ did so here, and thus
reached a well-supported RFC determination that did not impose any mental health limitations.
Accordingly, this Court finds no grounds to recommend remand based on the ALJ’s evaluation
of Dr. Noia’s consultative psychiatric opinion.
ACCORDINGLY, it is
RECOMMENDED that the Commissioner’s decision be AFFIRMED, Defendant’s
motion for judgment on the pleadings (Dkt. No. 16) be GRANTED; Plaintiff’s motion for
judgment on the pleadings (Dkt. No. 13) be DENIED; and Plaintiff’s complaint (Dkt. No. 1) be
DISMISSED.
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
December 23, 2025
Binghamton, New York
Case 5:24-cv-01221-MAD-ML Document 18 Filed 12/23/25 Page 17 of 17