Lighten v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WATU L.
Plaintiff, 	22-CV-424-HKS
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
DECISION AND ORDER
As set forth in the Standing Order of the Court regarding Social Security
Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have
consented to the assignment of this case to the undersigned to conduct all proceedings,
including the entry of final judgment, as set forth in 42 U.S.C. § 405(g). Dkt. #26.
BACKGROUND1
On October 4, 2019, plaintiff, at the age of 49, protectively filed an
application for Supplemental Security Income (“SSI”) benefits, alleging a disability onset
date of April 24, 2019 . Dkt. #6, pp. 405-411.2
1 Record citations use the page number(s) generated by the Court’s electronic filing system.
2 Although plaintiff alleged an onset date of April 24, 2019, the earliest month for which SSI
benefits are payable is the month following the month in which the claimant filed his or her
application. 20 C.F.R. § 416.335. Thus, the relevant period begins on October 4, 2019, the date
of plaintiff’s application. Jedermann v. Comm’r of Soc. Sec., 1:19-CV-0761 (CJS), 2020 WL
5361665, at *2 (W.D.N.Y. Sept. 8, 2020).
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In a Disability Report filed on October 31, 2019, plaintiff alleged he was
disabled due to two broken vertebrae in his neck; five fractured discs in his back; five
fractured ribs; dizzy spells; and a head injury. Dkt. #6, p. 435.
Plaintiff’s claim was denied initially on February 3, 2020, Dkt. #6, pp. 326-
331, and on reconsideration on May 11, 2020. Dkt. #6, pp. 338-349.
Plaintiff requested a hearing, and a telephonic hearing was held on
December 8, 2020 before Administrative Law Judge (“ALJ”) Mark Solomon. Dkt. #6,
pp. 278-298. Plaintiff appeared with counsel. Id.
The ALJ first confirmed with plaintiff’s counsel that he was still waiting for
records from Erie County Medical Center (“ECMC”), ECMC Physical Therapy, and Dr.
Castiglia. Dkt. #6, p. 281. The ALJ stated that he would leave the record open for two
weeks so that those documents could be submitted. Id.
Upon examination by the ALJ, plaintiff testified that he was born on April 30,
1970 and that he completed the twelfth grade. Dkt. #6, p. 283. He testified that he had
not worked since April 24, 2019, when he fell off a roof while working and broke his back.
Id.
Plaintiff also testified that he fell in August 2020 at a family gathering while
intoxicated, and that he was subsequently diagnosed with orthostatic hypotension, that
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is, low blood pressure. Dkt. #6, pp. 284-285. He testified that he continues to have dizzy
spells for which he is undergoing testing. Dkt. #6, p. 285. After that fall, doctors prescribed
him a walker and cane which he still uses when outside his home. Dkt. #6, pp. 285-286.
Plaintiff further testified that, after his fall from the roof in 2019, he
underwent physical therapy for his back and neck which he is still attending. Id.
Next, plaintiff testified that he lives alone and, prior to the 2020 fall, he was
able to take care of his own personal needs, except he used a shower chair because his
balance was off. Dkt. #6, p. 286. He was also able to wash dishes, make his own meals,
and, for the most part, do his own laundry, although sometimes a girlfriend helped him.
Dkt. #6, pp. 286-287.
Plaintiff also testified that he has not resumed driving since his 2019 fall as
he does not have full range of motion in his neck. Dkt. #6, p. 287. He uses Medicaid
transportation to get to appointments. Id. He is able to do light shopping but needs a friend
to help with heavier items. Dkt. #6, pp. 287-288. There is a store within walking distance
of his home. Dkt. #6, p. 288.
The ALJ asked plaintiff how long he can stay seated, and plaintiff stated a
couple of hours unless he needs to use the restroom. Id. Sometimes, he gets up and
stretches or does exercises as instructed by his physical therapist to help him regain his
equilibrium. Id.
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The ALJ next asked plaintiff how long, prior to the August 2020 fall, he could
stand up without using a cane or walker. Dkt. #6, p. 288. Plaintiff testified that he could
stand for probably one hour. Id. Plaintiff then testified that he had no difficulties using his
hands or fingers for zipping or buttoning, opening jars, door handles, or similar things. Id.
He also testified that he has no problem reaching either overhead or directly in front of
himself with either arm. Dkt. #6, pp. 288-289.
Next, the ALJ asked plaintiff what the heaviest weight he could currently lift
was, and plaintiff testified he could lift 50 pounds for a couple of minutes at a time. Dkt.
#6, p. 289. As an example, he testified that about a week or two prior to the hearing, his
landlord had someone drop off a bucket of drywall mix, and she asked him to put it in her
hallway. Id. Plaintiff testified that he carried it inside from the driveway, taking a break to
regain his balance after every few steps. Id.
The ALJ next asked plaintiff whether he is currently taking prescription
medicines. Dkt. #6, p. 290. Plaintiff testified that he was prescribed pain medications after
the fall from the roof, and they helped control the pain, as did physical therapy. Id.
Plaintiff testified that, prior to a recent toe injury, his daily activities were
reading, eating three meals a day, and watching television. Dkt. #6, pp. 290-291. Plaintiff
testified that he is sometimes depressed because of his current physical condition and he
sees a therapist. Dkt. #6, pp. 291-292.
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Upon examination by his counsel, plaintiff testified that his dizzy spells come
on randomly a couple of times a day. Dkt. #6, p. 292. He is still undergoing testing for the
dizziness, but he has no further treatment scheduled for his neck injury other than physical
therapy. Dkt. #6, pp. 292-293.
The ALJ next heard from Sheri Pruitt, a Vocational Expert (“VE”). The ALJ
noted that plaintiff has no past relevant work; he was under the age of 50 at his alleged
onset date; he turned 50 during the current year; and he has a high school diploma. Dkt.
#6, p. 294.
The ALJ then asked the VE to assume a claimant with plaintiff’s age,
education, and work experience who can perform the full range of light work with the
ability to sit, stand, or walk for 6 hours; lift or carry up to 20 pounds occasionally and 10
pounds frequently; who should avoid climbing ladders, scaffolds, or ropes; who can
frequently balance; and who should avoid working at unprotected heights or with
hazardous machinery. Dkt. #6, p. 294.
The ALJ asked whether, with such assumptions, the individual could
perform any unskilled light jobs. Id. The VE testified that such a person could perform the
jobs of inspector, hand packager, small parts assembler, and shipping and receiving
weigher. Dkt. #6, pp. 294-295.
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Next, the ALJ asked the VE if, prior to his 50th birthday, the individual was
limited to the full range of sedentary work with the same restrictions, whether there were
unskilled sedentary jobs he could perform. Dkt. #6, p. 295. The VE stated that the person
could perform the unskilled jobs of final assembler, order clerk, and weight tester. Dkt.
#6, pp. 295-296.
The VE also testified that the person could be off task up to and including
10% of the workday, outside of regularly scheduled breaks, and absent once a month
before work would be precluded. Dkt. #6, p. 296.
Finally, plaintiff’s counsel asked the VE whether, if the individual is limited
to standing no more than three out of six hours a day but still able to lift 20 pounds
occasionally and 10 pounds frequently, he would still be able to perform light work. Dkt.
#6, pp. 296-297. The VE testified that those restrictions would align with sedentary rather
than light work. Dkt. #6, pp. 296-297.
On April 9, 2021, the ALJ issued an unfavorable decision finding that plaintiff
was not disabled. Dkt. #6, pp. 258-277. The Appeals Council denied plaintiff’s request for
review on March 29, 2022. Dkt. #6, pp. 5-8. In so doing, the Appeals Council declined to
consider additional medical records that plaintiff submitted. Specifically, the Appeals
Council declined to consider records from ECMC because they were duplicative of
exhibits already contained in the record. Dkt. #6, p. 6. The Appeals Council also declined
to consider other medical records from 2020 and 2021 on the grounds that the evidence
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“does not show a reasonable probability that it would change the outcome of the decision.”
Id. This action followed.
DISCUSSION AND ANALYSIS
Legal Standards
“In reviewing a final decision of the SSA, this Court is limited to determining
whether the SSA’s conclusions were supported by substantial evidence in the record and
were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012). Substantial evidence is defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 496, 501
(2d Cir. 2009). If the evidence is susceptible to more than one rational interpretation, the
Commissioner’s determination must be upheld. McIntyre v. Colvin, 758 F.3d 146, 149 (2d
Cir. 2014). “Where an administrative decision rests on adequate findings sustained by
evidence having rational probative force, the court should not substitute its judgment for
that of the Commissioner.” Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998).
To be disabled under the Social Security Act (“Act”), a claimant must
establish an inability to do 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. 20 C.F.R. § 416.905(a). The Commissioner must follow a five-step sequential
evaluation to determine whether a claimant is disabled within the meaning of the Act. 20
C.F.R. § 416.920(a). At step one, the claimant must demonstrate that she is not engaging
in substantial gainful activity. 20 C.F.R. § 416.920(b). At step two, the claimant must
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demonstrate that she has a severe impairment or combination of impairments that limits
the claimant’s ability to perform physical or mental work-related activities. 20 C.F.R.
§ 416.920(c). If the impairment meets or medically equals the criteria of a disabling
impairment as set forth in Appendix 1 of Subpart P of Regulation No. 4 (the “Listings”),
and satisfies the durational requirement, the claimant is entitled to disability benefits. 20
C.F.R. § 416.920(d). If the impairment does not meet the criteria of a disabling
impairment, the Commissioner considers whether the claimant has sufficient RFC for the
claimant to return to past relevant work. 20 C.F.R. § 416.920(e)-(f). If the claimant is
unable to return to past relevant work, the burden of proof shifts to the Commissioner to
demonstrate that the claimant could perform other jobs which exist in significant numbers
in the national economy, based on claimant’s age, education, and work experience. 20
C.F.R. § 416.920(g).
Here, the ALJ made the following findings with regard to the five-step
sequential evaluation: (1) plaintiff had not engaged in substantial gainful activity since
October 4, 2019, the application date; (2) plaintiff has the severe impairments of
degenerative disc disease of the cervical spine status post healed fracture; history of right
rib fracture; and history of thoracic spine compression fracture; (3) plaintiff’s impairments
do not meet or medically equal any listed impairment; (4) plaintiff has the RFC to perform
light work3 except he could lift and carry twenty pounds occasionally and ten pounds
3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, an individual must have the ability to do substantially
all of these activities.” 20 C.F.R. § 416.967(b).
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frequently and sit, stand, and walk for a total of six hours; he could frequently balance,
but can never climb ropes, ladders, or scaffolds; and he must avoid working around
hazards such as unprotected heights or dangerous machinery; (5) plaintiff has no past
relevant work; (6) considering plaintiff’s age, education, work experience, and RFC, he is
able to perform the occupations of inspector/hand packager, small products assembler,
and shipping receiving weigher; and (7) plaintiff has not, therefore, been under a disability
within the meaning of the SSA since October 4, 2019. Dkt. #6, pp. 263-273.
Pursuant to the Revisions to Rules Regarding the Evaluation of Medical
Evidence (“Revisions to Rules”), 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68 (Jan.
18, 2017), applicable to claims filed on or after March 27, 2017, the Commissioner is no
longer required to afford any specific evidentiary weight to medical opinions, but is
obligated to consider all medical opinions and evaluate their persuasiveness based on
the following five factors: (1) supportability; (2) consistency; (3) relationship with the
claimant; (4) specialization; and (5) other factors, with particular importance placed upon
consistency and supportability. Jacqueline L. v. Comm’r of Soc. Sec, 515 F. Supp.3d 2,
7 (W.D.N.Y. 	2021) (citing 20 C.F.R. § 416.920c(a) & (c)). To allow a reviewing court to
trace the path of an ALJ’s reasoning, an ALJ is required to explain their consideration of
the supportability and consistency factors by pointing to specific evidence in the record to
support 	the 	ALJ’s 	findings 	regarding 	medical 	opinions. 	Id. 	(citing 	20 	C.F.R.
§ 416.920c(b)(2)).
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With respect to supportability, the more relevant the objective medical
evidence and supporting explanations presented by a medical source are to support the
medical opinion, the more persuasive the medical findings will be. Id. (citing 20 C.F.R.
§ 416.920c(c)(1)). Similarly, with respect to consistency, the more consistent a medical
opinion is with the evidence from other medical and nonmedical sources, the more
persuasive 	the 	medical 	opinions 	will 	be. 	Id. 	(citing 	20 	C.F.R. 	§ 	416.920c(c)(2)).
Supportability focuses on the fit between medical opinion offered by the source and the
underlying evidence presented by the source to support that opinion, while consistency
focuses on how well a medical source opinion is supported by the entire record. Rosario
v. Comm’r of Soc. Sec, 20 Civ. 7749, 2022 WL 819810, at *8 (S.D.N.Y. Mar. 18, 2022).
“Even though ALJs are no longer directed to afford controlling weight to treating source
opinions – no matter how well supported and consistent with the record they may be –
the regulations still recognize the ‘foundational nature’ of the observations of treating
sources, and ‘consistency with those observations is a factor in determining the value of
any [treating sources] opinion.’” Id. (quoting Shawn H. v. Comm’r of Soc. Sec., Civil Action
No. 2:19-cv-113, 2020 WL 3969879, at *6 (D. Vt. July 14, 2020)) (alteration in original).
Challenge to the ALJ’s Decision
Plaintiff makes a single challenge to the ALJ’s decision: he argues that the
ALJ improperly substituted his own lay judgment for that of the medical opinion of any
doctor. Dkt. #14-1, pp. 15-27.
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Legal Standards
“In deciding a disability claim, an ALJ is tasked with ‘weigh[ing] all of the
evidence available to make an RFC finding that [is] consistent with the record as a whole.’”
Barry J. v. Comm’r of Soc. Sec., 725 F. Supp.3d 312, 323 (W.D.N.Y. 2024) (quoting Matta
v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)). “While an ALJ’s conclusion need not
perfectly correspond with any of the opinions of medical sources cited in [his] decision, .
. . an ALJ is not a medical professional, and therefore [he] is not qualified to assess a
claimant’s RFC on the basis of bare medical findings.” Id. (citation and internal quotation
marks omitted).
“However, at bottom, ‘[a]n RFC finding is administrative in nature, not
medical, and its determination is within the province of the ALJ, as the Commissioner’s
regulations make clear.’” Karen F. v. Comm’r of Soc. Sec., 1:22-CV-00250-EAW, 2023 WL
3191611, at *3 (W.D.N.Y. May 2, 2023) (quoting Curry v. Comm’r of Soc. Sec., 855 F.
App’x 46, 48 n.3 (2d Cir 2021)). See also Ramsey v. Comm’r of Soc. Sec., 830 F. App’x
37, 39 (2d Cir. 2020) (“Notably, if the evidence is susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld.”) (citation and internal
quotation marks omitted).
The ALJ’s Assessment of the Medical Opinion Evidence
Before turning to the medical opinion evidence, the ALJ reviewed the
function report that plaintiff submitted in support of his application, in which he stated,
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inter alia, that he had knee and back pain, dizziness, and that a doctor had told him not
to lift more than twenty pounds. Dkt. #6, pp. 266-267, 446-452.
The ALJ then conducted an extensive review of plaintiff’s treatment records
from the time of his fall from the roof on April 24, 2019 through late 2020. Dkt. #6,
pp. 267-270. Summarizing those records, the ALJ noted that plaintiff’s treatment had been
essentially routine and conservative, and that he underwent no surgical procedures or
injections. Dkt. #6, p. 270. However, although plaintiff showed improvement with physical
therapy, he continued to report significant neck stiffness and pain for which his doctor
recommended over-the-counter medications. Id.
The ALJ then considered the medical opinions and prior administrative
findings. First, the ALJ considered the report of Dr. Nikita Dave, who conducted an internal
medical examination of plaintiff on January 28, 2020. Dkt. #6, pp. 584-587. Dr. Dave noted
that plaintiff reported that his neck had become very stiff after wearing a cervical collar for
about six months, for which he was currently undergoing physical therapy. Dkt. #6, p. 584.
Plaintiff also reported that he has low back pain that “comes and goes” with heavy lifting.
Id.
On 	examination, 	Dr. 	Dave 	observed 	that 	plaintiff’s 	gait 	was 	“slightly
unsteady,” but that he used no assistive devices and needed no help changing or getting
on or off the exam table. Dkt. #6, p. 585. Under “musculoskeletal,” Dr. Dave noted that
plaintiff had somewhat limited cervical, lumbar, and shoulder flexion, but a full range of
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motion in his hips, knees, and ankles bilaterally. Dkt. #6, p. 586. She also noted that
plaintiff had “slightly poor balance with some dysmetria noted on the exam.” Dkt. #6,
p. 587.4
In her medical source statement, Dr. Dave then stated: “In my opinion, due
to dysmetria and slightly poor balance, which may be multifactorial, avoid ladders and
heights. No other limitations.” Id.
The ALJ found Dr. Dave’s opinion “partially persuasive,” but only as to her
recommendation that plaintiff avoid ladders and heights. Dkt. #6, pp. 270-271. The ALJ
explained that although Dr. Dave’s examination showed “some positive findings of a
reduced range of motion,” she did not “include any exertional or postural limitations that
is evident due to his cervical and lumbar spine issues” and that her opinion “does not go
far enough to cover every facet of the claimant’s physical capabilities.” Id.
Although the ALJ’s discussion of Dr. Dave’s opinion was brief, it is clear to
the Court that he found her opinion that plaintiff had no non-environmental limitations
unpersuasive because it conflicted with plaintiff’s treatment records, which he specifically
referenced. Dkt. #6, p. 270. In so doing, the ALJ thus did not rely on his own lay judgment
and, in fact, he assessed greater restrictions than those to which Dr. Dave opined. See
Ramsey, 830 F. App’x at 39 (“Indeed, the ALJ occasionally deviated from consultative
examiners’ recommendations to decrease Ramsey’s RFC based on other evidence in the
4 “Dysmetria” is the “impaired ability to estimate distance in muscular action.” Merriam-Webster
Dictionary, http://www.merriam-webster.com/medical/dysmetria (Jan. 6, 2026).
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record. . . 	. The ALJ committed no error by determining the scope of Ramsey’s RFC
because that is his responsibility.”) (citations omitted). See also Otis L. v. Comm’r of Soc.
Sec., 1:24-cv-04347-GRJ, 2025 WL 219355, at *4 (S.D.N.Y. Jan. 15, 2025) (“The Court
finds no error in the ALJ’s conclusion that Plaintiff was somewhat more limited than the
medical opinion evidence suggested, but not so limited as to be considered disabled
within the meaning of the Social Security Act.”) (citations omitted); Roane v. O’Malley, 22
Civ. 10704 (AEK), 2024 WL 1357845, at *9 (S.D.N.Y. Mar. 29, 2024) (“Moreover, Plaintiff
also suffered no harm due to ALJ Romeo’s deviations from Dr. Abueg and Dr. Miller’s
opinions—indeed, those departures led the ALJ to assess more restrictive limitations than
what Dr. Abueg and Dr. Miller deemed appropriate.”).
Similarly, the ALJ found the opinions of state agency consultants Drs.
Lawrence and Miller unpersuasive because they conflicted with plaintiff’s medical
records. Dkt. #6, p. 271. For example, Dr. Lawrence opined that plaintiff had no exertional
limitations, which the ALJ noted was inconsistent with the treatment notes of Dr. Castiglia,
who treated plaintiff after his fall in 2019. Id. The ALJ explained that Dr. Castiglia’s records
“repeatedly show[ed] limitations in the claimant’s cervical range of motion accompanied
with stiffness.” Id.
As to Dr. Miller, the ALJ found that his opinion that plaintiff could lift or carry
no more than 10 pounds was contrary to Dr. Castiglia’s treatment notes, as well as
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diagnostic x-rays and CT scans, which showed that plaintiff had only mildly diminished
upper extremity strength. Id.5
Further, this Court has rejected the argument, made by plaintiff, that an ALJ
impermissibly relies on his own lay judgment in rejecting all medical opinions and
formulating an RFC based on other evidence of record.
For example, on similar facts, in Matthew S. v. Comm’r of Soc. Sec., 21-CV-
00220-LJV, 2023 WL 3603671 (W.D.N.Y. May 23, 2023), the ALJ found the opinion of Dr.
Dave and a state agency doctor unpersuasive to the extent that they assessed no
exertional or postural limitations. Id. at *2. The ALJ instead found—based on, inter alia,
plaintiff’s subjective complaints and treatment records—that plaintiff had greater physical
limitations and reached a corresponding RFC. Id. at *3. The Court held that the ALJ’s
determination was based on substantial evidence and that there was no evidentiary gap,
observing:
So the ALJ accepted the limitations in the opinions of Dr. Dave
and Dr. Ehlert, but he nevertheless found those opinions
unpersuasive because Matthew had more physical limitations
than those about which the two physicians opined. . . . The
ALJ certainly did not err by concluding that Matthew was more
restricted in his ability to perform work-related activities than
Dr. Dave or Dr. Ehlert found him to be.
5 The Court notes that plaintiff’s characterization of Dr. Miller’s recommended RFC as one for
sedentary work is inaccurate. Dkt. #14-1, p. 12. Although Dr, Miller opined that plaintiff could lift
only up to 10 pounds, he also opined that plaintiff could stand and/or walk for 6 hours in an 8-hour
workday and that plaintiff’s “maximum sustained work capability” was “light.” Dkt. #6, pp. 321,
324.
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Id. (citations omitted). See also Karen F., 2023 WL 3191611, at *4 (ALJ’s determination
was supported by substantial evidence; although she rejected medical opinions in favor
of a more restrictive RFC, the RFC was based on plaintiff’s medical records and
testimony); Tammy B. v. Comm’r of Soc. Sec., 1:21-CV-11 (JLS), 2022 WL 3714592, at
*4 (W.D.N.Y. Aug. 29, 2022) (rejecting plaintiff’s argument that because the ALJ was not
persuaded by any of the medical opinions, he relied on his own lay interpretation of raw
medical data; in formulating RFC, ALJ relied on plaintiff’s testimony and objective medical
evidence regarding her limitations).6
In sum, it “is the ALJ’s duty to formulate the RFC after evaluating the opinion
evidence, treatment records, and the testimony of the claimant.” Palistrant v. Comm’r of
Soc. Sec., Case # 16-CV-588-FPG, 2018 WL 4681622, at *5 (W.D.N.Y. Sept. 28, 2018)
(citation and internal quotation marks omitted). As the above discussion demonstrates,
this is what the ALJ did here.7
6 Plaintiff’s reliance on Mariani v. Colvin, 567 F. App’x 8 (2d Cir. 2014), is unavailing. Dkt. #14-1,
pp. 19-21. There, the Court determined that the ALJ’s finding that plaintiff had 50% RFC in his
right upper extremity was not supported by substantial evidence because the record only included
evidence that plaintiff either had no use of his hand at all, or that his hand and finger dexterity was
completely intact. Id. at *10. Here, however, the ALJ pointed to specific evidence in the form of
treatment records, diagnostic tests, and plaintiff’s own statements that support the limitations
included in the RFC. See Johnson v. Colvin, 669 F. App’x 44, 47 (2d Cir. 2016) (distinguishing
Mariana and rejecting argument that RFC finding that plaintiff could perform work at pace 10%
slower than average was not supported by substantial evidence; finding was based on plaintiff’s
medical and testing history); Tammy B., 2022 WL 3714592, at *4 (distinguishing Mariana; ALJ
based specific limitations in RFC on plaintiff’s testimony and medical records).
7 Plaintiff also argues that remand is required because plaintiff developed additional medical
impairments after Dr. Miller reviewed the file. Dkt. #14-1, pp. 22-23. This argument is without
merit. The evidence to which plaintiff alludes pertains to his fall in August 2020 at a family
gathering while highly intoxicated. Plaintiff testified about this fall in his hearing testimony, and the
ALJ specifically considered those medical records—as well as the reports of a consultative
psychiatrist and a state agency psychiatric consultant—at Step Two of his analysis. Dkt. #6,
pp. 263-266. The ALJ concluded that plaintiff’s mental impairment of alcohol-use disorder was
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Evidence Submitted to the Appeals Council
Although plaintiff does not allege, as a separate basis for his appeal,
error in the Appeals Council’s decision not to accept additional evidence that plaintiff
submitted with his request for review, he cites to some of that evidence in his opening
brief. Dkt. #14-1, p. 22.
“[I]t is black-letter law that ‘issues not sufficiently argued in [briefings]
are considered waived.’” Ashley P.H. v. Comm’r of Soc. Sec., 22-cv-442-MJP, 2025 WL
606547, at *5 (W.D.N.Y. Feb. 25, 2025) (quoting Poupore v. Astrue, 566 F.3d 303, 306
(2d Cir. 2009)).
There is a well-established analytical framework that applies to the
question of whether the Appeals Council must accept new evidence in a request for
review of an ALJ’s decision. See generally Chakarla M. o/b/o/ Comm’r of Soc. Sec., 6:22-
CV-6081Sr, 2025 WL 2782983, at *4 (W.D.N.Y. Sept. 30, 2025). Plaintiff has not cited this
authority or set forth any argument or analysis on this issue. The Court thus concludes
that plaintiff has forfeited this issue. Ashley P.H., 2025 WL 606547, at *5.
non-severe, and plaintiff does not challenge that determination. In short, this argument is a red
herring.
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CONCLUSION
Based on the foregoing, plaintiff’s motion for judgment on the pleadings
(Dkt. #14) is denied, and the Commissioner’s motion for judgment on the pleadings (Dkt.
#18) is granted.
The Clerk of Court is directed to close this case.
SO ORDERED.
DATED: 	Buffalo, New York
January 6, 2026
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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