5:25-cv-00470•Royston v. Commissioner of Social Security
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Leighann R.,1 V. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK Plaintiff, Commissioner of Social Security, Defendant. 5:25-CV-4 70 (LEK/MJK) 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. 1 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 1 of 30
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Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 1 of 30 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. Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 2 of 30 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. Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 3 of 30 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. Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 4 of 30 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 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 5 of 30 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) Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 6 of 30 (“[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.). Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 7 of 30 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 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 8 of 30 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). Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 9 of 30 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 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 10 of 30 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 10 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 11 of 30 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). 11 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 12 of 30 “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 12 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 13 of 30 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 13 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 14 of 30 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 14 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 15 of 30 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). 15 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 16 of 30 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 16 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 17 of 30 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 17 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 18 of 30 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 18 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 19 of 30 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 19 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 20 of 30 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. 20 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 21 of 30 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 21 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 22 of 30 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 22 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 23 of 30 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 23 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 24 of 30 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 24 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 25 of 30 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 29 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 26 of 30 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). 26 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 27 of 30 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 27 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 28 of 30 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 28 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 29 of 30 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 29 Case 5:25-cv-00470-LEK-MJK Document 20 Filed 03/24/26 Page 30 of 30 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 30
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