Osei v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
DESIREE O.,
Plaintiff,
v. 	3:25-CV-00399
(ECC/ML)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
OLINSKY LAW GROUP 	HOWARD D. OLINSKY, ESQ.
Attorneys for Plaintiff
250 South Clinton Street
Suite 210
Syracuse, New York 13202
U.S. SOCIAL SECURITY ADMIN. 	GEOFFREY M. PETERS, ESQ.
Counsel for Defendant
6401 Security Boulevard
Baltimore, Maryland 21235
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT-RECOMMENDATION
Plaintiff Desiree 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 Supplemental Security Income (“SSI”) benefits.
(Dkt. No. 1.) This matter was referred to me for Report and Recommendation by the Honorable
Elizabeth C. Coombe, United States District Court Judge, pursuant to 28 U.S.C. § 636(b) and
Local Rule 72.3(d). (Dkt. Nos. 4, 5.) This case has proceeded in accordance with General Order
18.
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Currently before this Court are Plaintiff’s motion for judgment on the pleadings and
Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 12, 17, 18.) 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 March 26, 2015, Plaintiff protectively filed an application for SSI, alleging disability
dating from April 16, 2013. (Administrative Transcript (“T.”) 401-402.) Her application was
denied initially on June 9, 2015. (T. 75-82, 146-149.) Plaintiff’s request for a hearing was
granted. (T. 190-206.) On May 9, 2017, Plaintiff testified in person before Administrative Law
Judge (“ALJ”) Elizabeth Koennecke. (T. 1281-1297.) On August 28, 2017, ALJ Koennecke
held a supplemental hearing to hear the testimony of vocational expert (“VE”) Robin Cook. (T.
1298-1308.)
ALJ Koennecke issued an unfavorable decision on September 8, 2017. (T. 83-106.) On
July 27, 2018, the Appeals Council vacated this decision and remanded for further administrative
proceedings. (T. 107-111.) On January 30, 2019, ALJ Koennecke held a hearing at which VE
Michele Erbacher testified, and heard testimony from Plaintiff at a separate hearing on August
26, 2019. (T. 1309-1338.) ALJ Koennecke issued another unfavorable decision on October 1,
2019. (T. 112-138.) The Appeals Council vacated this decision on February 10, 2021, and
directed it be assigned to a different ALJ for further administrative proceedings. (T. 139-145.)
On June 16, 2021, ALJ Kenneth Theurer1 held an administrative hearing at which
1 Given the lengthy procedural history and the need for narrative clarity, this Court will
frequently identify ALJ Koennecke and ALJ Theurer by name. When this Court uses the term
“the ALJ,” it will only be referring to ALJ Theurer, whose January 27, 2025 disability
determination is the subject of this proceeding.
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Plaintiff, VE Albert Sabella, and independent medical expert Dr. Billings Fuess each testified.
(T. 40-71.) ALJ Theurer issued an unfavorable decision on June 30, 2021. (T. 8-39.) The
Appeals Council denied Plaintiff’s request for review on July 25, 2022. (T. 1-7.) Plaintiff
commenced a judicial proceeding to challenge this final administrative decision on September
19, 2022. (T. 1411.)
In a Report-Recommendation dated September 8, 2023, the Honorable Magistrate Judge
David Peebles recommended that Plaintiff’s motion for judgment on the pleadings be granted
and the Commissioner’s decision be remanded for further proceedings. (T. 1414-1435.) Neither
party filed objections, and the Honorable United States District Court Judge Mae A. D’Agostino
adopted that report-recommendation in full on October 10, 2023. (T. 1410-1413, 1436.)
On January 31, 2024, the Appeals Council issued a notice of remand and explained that
Plaintiff had been found disabled as of September 8, 2022 in a subsequent claim. (T. 1440-1441.)
The Appeals Council vacated the June 30, 2021 final decision and remanded for further
proceedings to determine whether Plaintiff was disabled prior to September 8, 2022. (T. 1440.)
On January 15, 2025, ALJ Theurer held a telephonic hearing at which Plaintiff testified.
(T. 1344-1361.) On January 27, 2025, ALJ Theurer issued an unfavorable decision. (T. 1251-
1267.) Plaintiff did not file written exceptions to the January 27, 2025 decision, and the Appeals
Council did not exercise jurisdiction. On March 31, 2025, Plaintiff commenced this action. (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.
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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
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
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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
the record contains substantial support for the ALJ’s decision. Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982).
B. 	Standard for Benefits2
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
2 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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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”
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 35 years old and residing with her four
children. (T. 401, 1286, 1842.) As a child, Plaintiff received social security benefits and
received special education assistance due to learning difficulties and emotional disturbance. (T.
643, 1285, 1290-1291, 1349, 1415-1416.) She has an extremely limited work history that
Plaintiff attributed to her mental health impairments. (T. 47-48, 1288-1289.)
Plaintiff’s mental health history includes diagnoses for attention deficit hyperactivity
disorder, learning disability, bipolar disorder, personality disorder, post-traumatic stress disorder,
and panic disorder with agoraphobia. (T. 605, 621, 657, 664-666, 689, 749, 841.) Plaintiff
testified that she did not leave her house or socialize because she did not like being around other
people and was prone to panic attacks when in large crowds. (T. 602, 689, 1291-1292.)
The record includes Plaintiff’s relevant medical and mental health history. Rather than
summarizing the records at the outset, I will refer to the pertinent records during my discussion
of Plaintiff’s arguments.
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IV. 	THE ALJ’S JANUARY 27, 2025 DECISION
Based upon his review of the administrative record, the ALJ first determined that Plaintiff
had not engaged in substantial gainful activity after her application date of March 26, 2015. (T.
1256.) At step two, the ALJ found that Plaintiff has the following severe impairments: “post-
traumatic stress disorder, anxiety disorder, bipolar disorder, learning disorder, borderline
personality disorder, depressive disorder, and schizoaffective disorder.” (T. 1257.)
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 12.03 (Schizophrenia spectrum and other psychotic disorders), Listing 12.04 (Depressive,
bipolar and related disorders), Listing 12.06 (Anxiety and obsessive-compulsive disorders),
Listing 12.08 (Personality and impulse-control disorders), Listing 12.11 (Neurodevelopmental
disorders), and Listing 12.15 (Trauma-and stressor-related disorders). (T. 1257-1259.)
Next, the ALJ found that Plaintiff could perform work at all exertional levels with certain
nonexertional limitations. (T. 1259-1265.) Specifically, the ALJ found that Plaintiff:
can perform work limited to carrying out simple instructions, in an environment
that does not involve a specific production rate pace as would be experienced on
an assembly line or an hourly production quota. [Plaintiff] can perform work
involving only simple, work-related decisions with no more than occasional
changes in routine work setting. [Plaintiff] can interact with supervisors and
coworkers on an occasional basis throughout the workday. [Plaintiff] can have no
interaction with the public.
(T. 1259.)
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
with the objective medical evidence and other evidence, based on the requirements of 20 C.F.R.
416.929” and Social Security Ruling (“SSR”) 16-3p. (Id.) The ALJ further stated that he
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considered opinion evidence in accordance with 20 C.F.R. § 416.927. (Id.) The ALJ also
considered Plaintiff’s testimony “concerning the intensity, persistence and limiting effects of
[her] symptoms” but found them “not entirely consistent with the medical evidence and other
evidence in the record . . .” (T. 1260.)
At step four, the ALJ found that Plaintiff had no past relevant work. (T. 1265.) Relying
on VE testimony, the ALJ next found that there are jobs existing in significant numbers in the
national economy that Plaintiff could perform during the relevant period. (T. 1266.)
Accordingly, the ALJ found that Plaintiff was not disabled from her application date of March
26, 2015 through September 7, 2022. (T. 1254, 1267.)
V. 	ISSUES IN CONTENTION
Plaintiff argues that the ALJ failed to abide by a judicial remand order by improperly
rejecting Plaintiff’s testimony regarding the functional limitations imposed by her mental health
impairments, resulting in an RFC determination that is not supported by substantial evidence.
(Dkt. No. 12 at 10-15.) The Commissioner contends that the ALJ’s evaluation of Plaintiff’s
testimony complied with the judicial remand order and was supported by substantial evidence.
(Dkt. No. 17 at 6-17.)
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.
VI. 	LEGAL STANDARDS
A. 	Compliance with Judicial Remand Order
“Where a court finds that the Secretary has committed a legal or factual error in
evaluating a particular claim, the district court’s remand order will often include detailed
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instructions concerning the scope of the remand, the evidence to be adduced, and the legal or
factual issues to be addressed.” Sullivan v. Hudson, 490 U.S. 877, 885 (1989). It is well settled
that an ALJ’s failure to follow a court’s remand order is reversible error. See Sullivan, 490 U.S.
at 886 (“Deviation from the court’s remand order in the subsequent administrative proceedings is
itself legal error, subject to reversal on further judicial review.”); see also Brachtel v. Apfel, 132
F.3d 417, 419-20 (8th Cir. 1997) (“The ‘law of the case’ doctrine ... applies to administrative
agencies on remand.”) (citations omitted); Butler Lime & Cement Co. v. Occupational Safety &
Health Review Comm'n, 658 F.2d 544, 549 (7th Cir. 1981) (“The rule that an administrative
agency is limited on remand by the instructions of the reviewing court is settled beyond
question.”); Johnson v. Comm’r of Soc. Sec., No. 2:15-CV-106, 2016 WL 2854516, at * (D. Vt.
May 16, 2016) (“A federal district court does not make “allegations” in an order remanding a
social security disability appeal. Rather, the court directs the Commissioner to correct the noted
errors on remand; and the Commissioner is obligated to correct those errors in the manner
described by the court.”)
“Courts in the Second Circuit have regularly acknowledged that remand instructions to an
ALJ from a federal district court in Social Security cases constitute the law of the case.”
Krawczyk v. Berryhill, No. 1:17-cv-01311 (MAT), 2019 WL 244491, at *4 (W.D.N.Y. January
17, 2019) (collecting cases). Under the law of the case, the Commissioner is “implicitly limited
by any findings of the district court regarding the application for disability benefits.” Gladle v.
Astrue, No. 12-CV-284 (NAM), 2013 WL 4543147, at *3 (N.D.N.Y. Aug. 27, 2013); see also
Krawczyk, 2019 WL 244491, at *4. Courts within the Second Circuit have also consistently
applied the so-called “rule of mandate” in the Social Security context. The rule of mandate
creates a more binding variant of the law of the case doctrine, requiring on remand that the
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administrative agency’s “actions must be consistent with both the letter and the spirit of the
higher court’s decision.” Krawczyk, 2019 WL 244491, at *4 (internal citations omitted); 	Penny
Lou S. v. Comm’r of Soc. Sec., No. 2:18-CV-213, 2019 WL 5078603, at *4 (D. Vt. October 10,
2019) (collecting cases).
B. 	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);
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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 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).
C. 	Evaluating Medical Evidence
Because Plaintiff’s claim was filed prior to March 27, 2017, administrative review of her
application for benefits is governed by the “treating physician rule.” 	See, e.g., Maureen S. v.
Comm’r of Soc. Sec.. No. 5:20-CV-01158 (TJM), 2022 WL 909219, at *4 (N.D.N.Y. March 29,
2022). As set forth in 20 C.F.R. §§ 416.927(c) & 404.1527(c), this rule requires that “the opinion
of a claimant’s treating physician as to the nature and severity of the impairment is given
‘controlling weight’ so long as it is ‘well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in the case
record.’” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008) & 20 C.FR. § 404.1527(c)(2)) (internal quotation marks omitted).
However, “the opinion of the treating physician is not afforded controlling weight where . . . the
treating physician issued opinions that are not consistent with other substantial evidence in the
record, such as the opinions of other medical experts.” Halloran v. Barnhart, 362 F.3.d 28, 32 (2d
Cir. 2004).
As summarized by the Honorable Thomas J. McAvoy in Maureen S., the treating physician
rule requires that
. . . the ALJ must articulate ‘good reasons’ to rebut the presumption of controlling
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deference conferred on the treating physician's opinion.” Colgan v. Kijakazi, 22
F.4th 353, 359 (2d Cir. 2022) (citing Estrella, 925 F.3d at 96; Burgess, 537 F.3d at
129–30). “If an ALJ reasonably finds that the treating physician's medical opinion
is not entitled to ‘controlling weight’ under the treating physician rule, then the ALJ
must determine how much weight to assign the treating physician's opinion.” Id.
at n. 3. 	“The ALJ does so by ‘explicitly’ applying the Burgess factors: ‘(1) the
frequen[cy], length, nature, and extent of treatment; (2) the amount of medical
evidence supporting the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and (4) whether the physician is a specialist.’ ” Id.
(quoting Estrella, 925 F.3d at 95-96, in turn quoting Selian v. Astrue, 708 F.3d 409,
419-20 (2d Cir. 2013) (per curiam)); see Anthony A. v. Comm'r of Soc. Sec., No.
3:20-CV-00943 (TWD), 2022 WL 806890, at *3 (N.D.N.Y. Mar. 17, 2022)(“If an
ALJ gives a treating physician's opinion less than controlling weight, he or she must
consider various factors in determining how much weight, if any, to give the
opinion, including: (1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship; (3) what
evidence supports the treating physician's report; (4) the consistency of the treating
physician's opinion with the record as a whole; (5) the area of specialization of the
physician in contrast to the condition being treated; and (6) any other factors which
may be significant in the claimant's case.”) (citing 20 C.F.R. § 404.1527(c)).
Failure to explicitly apply these factors “constitutes a procedural error subject to a
harmless error analysis.” Colgan, 22 F.4th at 360, n. 3 (citing Estrella, 925 F.3d at
95-96). “[A]n ALJ need not mechanically recite these factors as long as the record
reflects a proper application of the substance of the rule.” Samantha S. v. Comm'r
of Soc. Sec., 385 F. Supp. 3d 174, 184 (N.D.N.Y. 2019). However, “[t]he failure
to apply the appropriate legal standards for considering a treating physician's
opinion constitutes a basis for reversal of an adverse determination, as is the
decisionmaker's failure to provide reasons for rejecting the opinions.” Jessica W.
v. Comm'r of Soc. Sec., No. 19-CV-01427 (DEP), 2021 WL 797069, at *6
(N.D.N.Y. Mar. 2, 2021) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.
1987); Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)).
Maureen S., 2022 WL 909219, at *4.
Where the ALJ’s reasoning and adherence to the regulation is clear, and it is obvious that
the “substance of the treating physician rule was not traversed,” no “slavish recitation of each and
every factor” of 20 C.F.R. §§ 416.927 & 404.1527(c) is required. 	Atwater v. Astrue, 512 Fed
Appx. 67, 70 (2d Cir. 2013) (citing Halloran v. Barnhart, 362 F.3d at 31-32). Rather, a “searching
review of the record” may find adequate good reasons to assure a court that the substance of the
rule was followed. Estrella v. Berryhill, 925 F.3d 90, 96 (2d Cir. 2019); see also Ferraro v. Saul,
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806 Fed. Appx. 13, 15-16 (2d Cir. 2020).
D. 	Evaluating Testimonial Evidence
Assessment of a claimant's subjective complaints about his or her symptoms or the effect
of those symptoms on the claimant's ability to work involves a two-step process. Where a
claimant complains that certain symptoms, including pain, limit his or her capacity to work, the
ALJ is required, first, to determine whether the claimant suffers from a “medically determinable
impairment[ ] that could reasonably be expected to produce” the symptoms alleged. 20 C.F.R. §§
404.1529(c)(1), 416.929(c)(1). Assuming the ALJ finds such an impairment, then the ALJ must
take the second step of “evaluat[ing] the intensity and persistence of [the claimant's] symptoms,
including pain,” considering “all of the available evidence,” to determine “how [the] symptoms
limit [the claimant's] capacity for work.” Id. §§ 404.1529(c)(1), 416.929(c)(1). In doing so, the
ALJ must consider all of the available evidence, and must not “reject [ ] statements about the
intensity and persistence of [ ] pain or other symptoms ... solely because the available objective
medical evidence does not substantiate [the claimant's] statements.” Id. §§ 404.1529(c)(2),
416.929(c)(2). Instead, where the claimant's contentions regarding his or her symptoms are not
substantiated by the objective medical evidence, the ALJ must evaluate those statements in
relation to the other evidence, in order to determine the extent to which the claimant’s symptoms
affect his or her ability to do basic work activities. Id. §§ 404.1529(c)(3)-(4), 416.929(c)(3)-(4).
While an ALJ “is required to take [a] claimant's reports of pain and other limitations into
account” in evaluating his or her statements, an ALJ is “not required to accept the claimant's
subjective complaints without question.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). To
the extent the ALJ determines that the claimant’s statements are not supported by the medical
record, however, the ALJ’s decision must include “specific reasons for the weight given to the
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individual’s symptoms, be consistent with and supported by the evidence,” and be “clearly
articulated” for a subsequent reviewer to assess how the adjudicator evaluated the individual's
symptoms. SSR 16-3p, Titles II and XVI: Evaluation of Symptoms in Disability Claims, 2017
WL 5180304, at *8 (October 25, 2017).
The factors that an ALJ should consider in evaluating the claimant's subjective
complaints, where they are not supported by objective medical evidence alone, are: (1) the
claimant's daily activities; (2) the location, duration, frequency, and intensity of the symptoms;
(3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of
any medications taken to alleviate the symptoms; (5) any treatment, other than medication, that
the claimant has received for relief of the symptoms; (6) any other measures that the claimant
employs to relieve the symptoms; and (7) other factors concerning the claimant's functional
limitations and restrictions as a result of the symptoms. See 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii),
416.929(c)(3)(i)-(vii).
VII. 	ANALYSIS
A. 	The ALJ Complied with the Judicial Remand Order.
In her October 10, 2023 Order, Judge D’Agostino adopted Magistrate Judge Peebles’
September 8, 2023 Report-Recommendation in its entirety. (T. 1412.) This included Magistrate
Judge Peeble’s conclusion that ALJ Theurer’s June 25, 2021 decision “appears to have relied
heavily” on Plaintiff’s lack of formal mental health treatment and failure to take her prescribed
psychiatric medication, so much that this failure formed the “sole explicit reason” for
discounting Plaintiff’s testimony regarding the functional limitations imposed by her mental
health impairments. (T. 1428-1429.) Judge Peebles found this to be legal error that merited
remand, particularly where the ALJ’s decision did not offer “meaningful review of how he
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assessed all the treatment evidence when considering plaintiff’s subjective reports.” (T. 1431.)
In considering the matter on remand, ALJ Theurer’s January 27, 2025 disability
determination addressed Judge Peebles’ concerns regarding the testimonial evidence. As
Defendants’ brief points out, the ALJ avoided overreliance on Plaintiff’s perceived lack of
treatment compliance to discount her testimony on remand. (Dkt. No. 17 at 8.) Instead, the ALJ
provided a lengthy evaluation of Plaintiff’s description of her mental health limitations in light of
the available treatment notes, consultative examination reports, medical opinions and Plaintiff’s
documented activities of daily living. (T. 1259-1265.) In doing so, the ALJ provided the type of
“meaningful review” that Judge Peebles recognized as required for proper evaluation of
subjective testimony, and thus complied with Judge D’Agostino’s October 10, 2023 judicial
remand order. The scope of the ALJ’s review, and its foundation of substantial evidence, is
discussed below.
B. 	The ALJ’s Evaluation of Plaintiff’s Testimony Was Supported by
Substantial Evidence.
Plaintiff contends that the ALJ improperly relied on several “normal” mental status
examinations to discount or reject Plaintiff’s description of her mental health limitations, without
proper consideration of Plaintiff’s testimony in light of the broader treatment record and the most
restrictive medical opinion evidence. (Dkt. No. 12 at 11-12.) This Court finds Plaintiff’s
argument unpersuasive.
Courts will generally not “second-guess” an ALJ’s assessment of a plaintiff’s subjective
testimony where “the ALJ identified specific record-based reasons for [her] ruling.” Castillo v.
O'Malley, No. 24-41-CV, 2024 WL 4707253, at *3 (2d Cir. Nov. 7, 2024) (quoting Stanton v.
Astrue, 370 F. App'x 231, 234 (2d Cir. 2010)). Here, the ALJ’s January 27, 2025 decision
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catalogs the objective evidence, mental health opinion evidence, and activities of daily living that
led him to discount the most restrictive portions of Plaintiff’s testimony regarding her mental
health limitations.
Over the course of multiple hearings, Plaintiff testified about her difficulties with reading
and writing while in school and her limited employment history after she left school. (T. 1286-
1297, 1330-1332.) She attributed her difficulty maintaining a job primarily to her inability to be
in a large group or in the general public without feeling nervous, having a panic attack, or crying.
(T. 1290-1292, 1324-1326.) She described frequently being overwhelmed with depression or
anger and isolating herself from others. (T. 1293-1294.) Plaintiff also testified that her most
recent employment attempt ended when she “freaked out” after a few weeks and walked out on
the job. (T. 470, 1289, 1335.)
In assessing Plaintiff’s subjective testimony, the ALJ noted that Plaintiff had reported
similar limitations during separate consultative psychiatric examinations by Dr. Dennis Noia in
September 2015 and Dr. Amanda Slowik in March 2023. (T. 1262-1264.) He also noted that
Plaintiff had consistently described difficulties interacting with the general public to various
treatment providers. (T. 602, 689, 1107, 1260.)
As part of his review of Plaintiff’s mental status examinations during the relevant time
period, the ALJ cited multiple examples of observed anxiety, distractibility, restlessness, and
poor frustration tolerance (T. 602, 612, 628, 659, 886, 1118, 1231, 1260), but also found
“numerous observations of mental functioning within normal range.” (T. 603, 613, 645, 656,
1103, 1260.) The ALJ noted that multiple medical professionals observed “normal range, affect,
insight, and judgment” during examinations, and described Plaintiff as “pleasant, cooperative,
and conversational” with “good eye contact, appropriate interaction, and normal psychomotor
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activity with an absence of agitation.” (T. 656, 702, 1103, 1247.)
In evaluating Plaintiff’s subjective description of her limitations, the ALJ also considered
the opinion of independent psychological expert Dr. Billings Fuess, who reviewed Plaintiff’s
available mental health records and testified at her June 16, 2021 hearing. (T. 48-59, 1261,
1264.) Dr. Fuess opined that Plaintiff would be able to perform work involving “simple routine
and repetitive tasks” with “few if any workplace changes.” (T. 55.) Relatedly, Dr. Fuess opined
that Plaintiff would have difficulty in a work environment that required her to switch tasks
frequently. (Id.) In response to in-depth questioning from Plaintiff’s representative, Dr. Fuess
explained that he did not find objective support in the treatment record to conclude that Plaintiff
had significant difficulties with social interaction that would warrant a diagnosis of anti-social
personality disorder, particularly after Plaintiff reached adulthood. (T. 55-59.)
The ALJ assigned “substantial weight” to Dr. Fuess’ opinion, finding it “supported by his
review of the evidence of record and the detailed explanation he furnished” through his
testimony. (T. 1264.) The ALJ also found Dr. Fuess’ opinion to be consistent with the broader
treatment record, outlined above. (Id.)
The ALJ conducted a similar analysis of the other relevant opinion evidence. For
example, the ALJ found support in the broader record for certain limitations opined by Dr. Ann
Hunt, a psychologist who treated Plaintiff since September 2015, although Plaintiff frequently
missed appointments. (T. 757, 839.) Dr. Hunt offered a number of opinions during the relevant
period, ranging from brief assessments for the county social services department regarding
Plaintiff’s employability to more detailed medical source statements with supporting narrative.
(T. 755-759, 839-840, 1079-1080.) Dr. Hunt observed difficulties with memory, understanding,
and applying information, but opined that Plaintiff had the ability to understand, remember, and
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carry out short and simple instructions and maintain attention for two hour segments. (T. 756,
1261.) The ALJ rejected the most restrictive opinions from Dr. Hunt, including that Plaintiff
would be off-task more than twenty percent of the workday and was unable to work due to her
“aggressive and confrontational attitude.” (T. 1079, 1261.) Like Plaintiff’s similar testimony
regarding attention and concentration and social interaction, the ALJ, like Dr. Fuess, found no
evidentiary support for these conclusions. Indeed, in April 2017, Dr. Hunt explained that
Plaintiff refused to cooperate with work preparation programs “because she believes she
cannot/should not work,” rather than any specific mental health limitations. (T. 756.) In April
2018, Dr. Hunt again explained that Plaintiff “refuses to work. If forced to she becomes
violent.” (T. 1797.) Dr. Hunt did not ascribe this refusal to any mental health impairment.
The ALJ continued this line of inquiry into the other relevant mental health opinions.
For example, Dr. Dennis Noia performed a consultative psychiatric examination of Plaintiff in
September 2015 and offered his opinion of Plaintiff’s mental health limitations. (T. 643-646.)
The ALJ found record support for Dr. Noia’s opinion that Plaintiff was able to understand and
follow simple instructions and directions and perform simple tasks, but had greater limitations in
her ability to perform complex tasks and handling stress. (T. 646, 1263.) In contrast to Plaintiff’s
testimony or Dr. Hunt’s opinion, Dr. Noia opined that Plaintiff “appears to be able to relate to
and interact moderately well with others.” (T. 646.) The ALJ incorporated these findings into his
ultimate RFC determination that Plaintiff was able to perform “the basic mental demands of
unskilled work on a sustained basis in a low-contact and reduced-stress environment” that
required only occasional contact with supervisors and coworkers and no contact with the general
public. (T. 1263.)
Dr. Amanda Slowik conducted an additional psychiatric consultative examination of
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Plaintiff in March 2023. Dr. Slowik opined that Plaintiff had “markedly impaired” attention and
concentration, “largely due to a lack [of] effort, but also because of cognitive deficits.” (T. 1844.)
She opined that Plaintiff’s “ability to understand, remember, and apply simple directions and
instructions, sustain concentration, [and] be aware of normal hazards is moderately limited.” (T.
1845.) She further opined that Plaintiff had marked limitations in a number of functional areas:
understanding, remembering, and applying complex directions and instructions; using reasoning
and judgment to make work-related decisions; interacting adequately with supervisors,
coworkers, and the public; sustaining an ordinary routine; and regulating her emotions. (Id.) The
ALJ assigned this opinion “some weight,” but discounted them because Dr. Slowik’s
examination was performed more than six months after the end of the time period under
review. (T. 1264.)
Looking beyond Plaintiff’s treatment records and the medical opinion evidence, the ALJ
also considered Plaintiff’s activities of daily living when evaluating her testimony regarding her
functional limitations. (T. 1258-1259, 1262-1264.) Throughout the period under review,3
Plaintiff detailed her ability to perform standard activities of daily living including personal care
and grooming, chores such as cleaning, laundry, shopping, money management, and using public
transportation. (T. 464-467, 645, 663.) She described herself as independent and able to take
care of herself and her children despite her mental health symptoms. (T. 467, 678.) Although
Plaintiff reported difficulty socializing with friends after the tragic death of the father of one of
her children, she reported an ability to engage in social activities with her children and her
3 Plaintiff described a reduced ability to perform certain activities, such as laundry and
using public transportation, in her March 2023 consultative psychiatric examination, suggesting
that her symptoms became worse after the period under review. (T. 1845.)
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boyfriend and to attend necessary appointments with social services, counselors, and her doctors.
(T. 468.)
This level of daily activities, while not dispositive on its own, is a relevant consideration
when evaluating the persuasiveness of Plaintiff’s testimony and relevant medical opinion
evidence. See Medina v. Comm'r of Soc. Sec., 831 F. App'x 35, 36 (2d Cir. 2020) (allowing ALJ
to consider daily activities in determining consistency with alleged symptoms); Herrington v.
Berryhill, No. 3:18-CV-315, 2019 WL 1091385, at *7 (D. Conn. Mar. 8, 2019) (activities of
daily living are appropriate factors for an ALJ to consider when assessing a plaintiff’s claimed
symptoms and limitations).
Plaintiff contends that the ALJ improperly rejected Plaintiff’s testimony describing her
mental health symptoms and the resulting functional limitations. However, an ALJ is not
required to unquestionably accept a claimant’s subjective testimony. See Keith R. P. v. Comm’r
of Soc. Sec., No. 5:24-CV-1489 (BKS/PJE), 2026 WL 770353, at *5 (N.D.N.Y. Feb. 25, 2026),
rep’t and rec. adopted, No. 5:24-CV-1489 (BKS/PJE), 2026 WL 769075 (N.D.N.Y. Mar. 18,
2026) (“[A]n ALJ is ‘not required to accept the claimant's subjective complaints without
question.’”) (internal citations omitted). 	Rather, an ALJ is required to assess the consistency of
that testimony with the longitudinal treatment record, relevant mental status examinations,
relevant opinion evidence, and activities of daily living. See Castillo, 2024 WL 4707253, at *3;
see also Rutkowski v. Astrue, 368 F. App’x 226, 230 (2d Cir. 2010) (affirming an ALJ’s
credibility assessment where Plaintiff’s “allegations of disability contradicted the broader
evidence”).
Because the ALJ’s January 27, 2025 assessment of Plaintiff’s testimony meets these
standards, it is supported by substantial evidence, and thus presents no grounds for this Court to
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recommend remand.
C. 	The ALJ’s RFC Determination and Ultimate Disability Determination Were
Supported by Substantial Evidence.
As described above, the record before this Court establishes that the ALJ resolved
conflicts between the objective medical record, medical opinion evidence, and hearing testimony
by placing the greatest reliance on that evidence that he deemed most consistent with Plaintiff’s
overall treatment record and activities. In doing so, the ALJ appropriately evaluated the
conflicting medical evidence and plaintiff’s testimony and made an RFC finding that was
consistent with the overall record. See Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)
(although ALJ’s conclusion did not perfectly correspond with any of the opinions of medical
sources, ALJ was entitled to weigh all of the evidence available to make an RFC finding that was
consistent with the record as a whole). “There is no requirement that the ALJ pick one RFC
[opinion] and use that particular evaluation in its entirety.” Alexandrea R.R. v. Berryhill, No. 15-
CV-756 (FPG), 2019 WL 2269854, at *6 (N.D.N.Y. May 28, 2019). Rather, “it is the ALJ’s
responsibility to choose between properly submitted medical opinions and other competent
evidence to piece together an overall [RFC] assessment.” Id. In doing so, the ALJ is entitled to
rely upon the opinions of both examining and non-examining” physicians like Dr. Fuess and Dr.
Noia, “since such consultants are deemed to be qualified experts in the field of social security
disability.” Monroe v. Comm’r of Soc. Sec., No. 5:15-CV-1235 (GTS/WBC), 2016 WL
7971330, at *7 (N.D.N.Y. Dec. 29, 2016), rep’t. & rec. adopted, 2017 WL 318838 (N.D.N.Y.
Jan. 23, 2017) (collecting cases).
Plaintiff contends that the ALJ’s decision does not address crucial evidence, including
documentation of Plaintiff’s long-standing “refusal to maintain regular attendance” dating back
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to her eighth grade individualized education plan. (T. 446, 756.) However, it is well-established
that ALJs are not required to “reconcile every conflicting shred of medical testimony.” Miles v.
Harris, 645 F.2d 122, 124 (2d Cir. 1981). Instead, an ALJ must discuss the evidence and factors
“crucial” to the disability determination with “sufficient specificity to enable [this Court] to
decide whether the determination is supported by substantial evidence.” Ferraris v. Heckler, 728
F.2d 582, 587 (2d Cir. 1984) (citing Treadwell v. Schweiker, 698 F.2d 137, 142 (2d Cir. 1983)).
As described above, the ALJ satisfied that requirement.
Plaintiff has marshaled evidence that suggests greater limitations than set forth in the
January 27, 2025 RFC determination, including her own testimony and the medical opinion of
Dr. Amy Hunt. But at best, her challenge to the ALJ’s disability determination is “premised
upon a disagreement over how the ALJ resolved arguably conflicting evidence.” See Kimball v.
Comm'r of Soc. Sec., No. 6:14-CV-0698 (LEK/ATB), 2015 WL 4251163, at *9 (N.D.N.Y. July
13, 2015). This Court will not reweigh the evidence presented to the ALJ. See Warren v.
Comm’r of Soc. Sec., No. 3:15-CV-1185 (GTS/WBC), 2016 WL 7223338, at *9 (N.D.N.Y. Nov.
18, 2016) (“When applying the substantial evidence test to a finding that a plaintiff was not
disabled, the Court ‘will not reweigh the evidence presented at the administrative hearing, . . .
nor will it determine whether [the applicant] actually was disabled. [Rather], [a]bsent an error of
law by the Secretary, [a] court must affirm [his] decision if there is substantial evidence [in the
record] to support it.’”) (quoting Lefford v. McCall, 916 F. Supp. 150, 155 (N.D.N.Y. 1996)),
rep’t and rec. adopted by 2016 WL 7238947 (N.D.N.Y. Dec. 13, 2016); Vincent v. Shalala, 830
F. Supp. 126, 133 (N.D.N.Y. 1993) (“[I]t is not the function of the reviewing court to reweigh
the evidence.”) (citing Carroll v. Sec’y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir.
1983)).
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In light of the ALJ’s thorough analysis after repeated administrative and judicial
remands, this Court concludes that his RFC determination and ultimate disability determination
were supported by substantial evidence, as summarized above, and do not present grounds for
remand.
ACCORDINGLY, it is
RECOMMENDED that the Commissioner’s decision be AFFIRMED, Defendant’s
motion for judgment on the pleadings (Dkt. No. 17) be GRANTED; Plaintiff’s motion for
judgment on the pleadings (Dkt. No. 12) 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
June 9, 2026
Binghamton, New York
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