UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

MATTHEW L.,1 Plaintiff, -v- 24-CV-0275 (RFT)

MICHELLE KING, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.2 OPINION & ORDER

This case is before the undersigned on consent for all purposes under

(c). Plain�ff Mathew L. seeks judicial review of a final determina�on by the Commissioner of the Social Security Administra�on, denying his applica�on for social security disability benefits under the Social Security Act. (See ECF 13, Pl.’s Mem. of Law in Supp. of Mot. at 1-2.) Plain�ff, who has never worked more than part-�me in a suppor�ve environment and who lives with his parents, has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking reversal of the Commissioner’s decision and remand for further administra�ve proceedings. (See ECF 12, Pl.’s Mot.) I have carefully reviewed Plain�ff’s brief (ECF 13, Pl.’s Mem.), the Ac�ng Commissioner’s brief in opposi�on (ECF 20, Def.’s Opp.), and Plain�ff’s reply (ECF 21, Pl.’s Reply). I heard oral argument on January 31, 2025. (See ECF 24,

1 To preserve his privacy, Plain�ff is referred to by his first name and the first ini�al of his last name. 2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Michelle King is subs�tuted as the defendant in this ac�on. Order.) For the reasons stated on the record, Plain�ff’s mo�on to reverse the Commissioner’s decision is GRANTED and the case is REMANDED for further proceedings.

DISCUSSION In a twelve-page opinion, the administra�ve law judge (“ALJ”) found that Plain�ff was not disabled and could perform simple work in a low-stress environment with limited changes and limited contact with others. (R. at 15, 23, 26.) In reaching that determina�on, the ALJ found persuasive and relied on the opinions of two non-examining consultants, Drs. Haus and Kamin, who reviewed Plain�ff’s record as of May 20, 2021 and September 7, 2021, respec�vely. (See

.) Those consultants opined that Plain�ff had only moderate limita�ons in understanding, remembering and applying informa�on; interac�ng with others; concentra�on, persistence and pace; and adap�ng and managing himself. (Id.) The ALJ found unpersuasive the opinions of Dr. Tobe, who had treated Plain�ff, and of several non-medical professionals who had assessed Plain�ff’s ability to func�on in a workplace. (See

.) An ALJ’s “[f]ailure to apply the correct legal standard cons�tutes reversible error.” Kohler

v. Astrue,

(2d Cir. 2008). A court may not defer to an ALJ’s determina�on that is the product of legal error, including a failure to set forth “a discussion of the evidence” and the “reasons upon which [the decision] is based.”

(b)(1); see Cullen v. Kijakazi, No. 23-CV-1690 (AS) (RWL),

, at *2 (S.D.N.Y. Feb. 9, 2024), report and recommendation adopted,

(S.D.N.Y. Mar. 18, 2024). When “the ALJ has

applied an improper legal standard,” or when there is not substan�al evidence to support the ALJ’s determina�on, the reviewing court may remand to the ALJ. See Pratts v. Chater,

(2d Cir. 1996). Beyond merely considering the supportability and consistency of medical source opinions, the ALJ must explain how he analyzed those factors. See

.1520c(b)(2); Vellone v. Saul, No. 20-CV-261 (RA) (KHP),

, at *6 (S.D.N.Y. Jan. 29, 2021) (“[I]n

cases where the new regula�ons apply, an ALJ must explain his/her approach with respect to the first two factors when considering a medical opinion . . . .”), report and recommendation adopted,

(S.D.N.Y. July 6, 2021). Under the current regula�ons, an ALJ’s failure to properly consider and apply the consistency and supportability factors may be a basis for remand. See, e.g., Rivera v. Comm’r of Soc. Sec., No. 19-CV-4630 (LJL) (BCM),

,

at *22 (S.D.N.Y. Dec. 30, 2020) (remanding for ALJ to “reevaluate the persuasiveness assigned to the opinion evidence of record and explicitly discuss both the supportability and the consistency of the consul�ng examiners’ opinions”), report and recommendation adopted,

(S.D.N.Y. Jan. 14, 2021); Andrew G. v. Comm’r of Soc. Sec., No. 19-CV-942 (ML),

, at *5-9 (N.D.N.Y. Oct. 1, 2020) (remanding because ALJ failed to adequately explain the supportability or consistency factors that led to the decision); see also

.1520c(b)(2), 416.920c(b)(2) (requiring the ALJ to “explain how [he or she] considered the supportability and consistency factors”). The ALJ erred by failing to explain his assessment of the persuasiveness of the non- examining consultants’ opinions. The ALJ stated that Drs. Haus’s and Kamin’s conclusions were “persuasive,” because “[t]hese opinions come from medical specialists and their opinions are supported by, and consistent with, the rest of the psychiatric evidence of record.” (R. at 23.) This

conclusory asser�on fails to comply with the regula�ons that require an ALJ to “consider all medical opinions in the record and evaluate their persuasiveness, considering the factors outlined in the regula�ons and specifically explaining, in all cases, how he assessed the ‘supportability’ and ‘consistency’ factors.” Hernandez v. Kijakazi, No. 21-CV-4918 (VF),

, at *8 (S.D.N.Y. Feb. 24, 2023) (quo�ng

.920c(b)(2)); see also Jackson v.

Kijakazi,

, 585-87 (S.D.N.Y. 2022) (finding that remand was required where the ALJ failed to specifically address the supportability and consistency factors); Brianne S. v. Comm’r of Soc. Sec., No. 19-CV-1718 (FPG),

, at *5 (W.D.N.Y. Mar. 8, 2021) (explaining that when an ALJ does not specifically examine the evidence used to support a physician’s opinions and conclusions, the ALJ fails “to apply or even consider the supportability

factor,” which amounts to “legal error”). Plain�ff’s trea�ng physician, Dr. Tobe, opined that Plain�ff had extreme limita�ons in applying informa�on, interac�ng with others, maintaining pace, adap�ng in the workplace and managing himself in the workplace; had marked limita�ons in understanding informa�on and persis�ng; and had moderate limita�ons in remembering informa�on and concentra�ng. (R. at 932.) The ALJ’s assessment of Dr. Tobe’s residual func�onal capacity (“RFC”) opinion – that the

opinion was unpersuasive because it was “inconsistent with the vast preponderance of [Dr. Tobe’s] own clinical findings” and “with the mental status examina�ons conducted by other medical professionals” (id. at 24) – did not include adequate analysis and explana�on. Therefore, the ALJ’s assessment of Dr. Tobe’s opinion failed to comply with the regula�ons that require an ALJ to “specifically explain[ ]” his conclusions about supportability and consistency. Hernandez,

, at *8; see also Velasquez v. Kijakazi, No. 19-CV-9303 (DF),

, at *25-27 (S.D.N.Y. Sept. 24, 2021) (finding that remand was appropriate where the ALJ failed to adequately ar�culate the ra�onale for finding a trea�ng physician’s opinion to be unpersuasive).

The ALJ’s reliance on “normal” mental status examina�ons to conclude that Dr. Tobe’s opinion was unpersuasive (R. at 24) likewise cons�tuted error in the context of this case. The Second Circuit has counselled against relying on mental status examina�ons to draw conclusions about a plain�ff’s abili�es in a work context, because such examina�ons analyze the “mental state only at the �me of the examina�on and do not consider symptoms the pa�ent may experience outside of that brief period of �me.” Loucks v. Kijakazi, No. 21-1749,

, at *2 (2d Cir. June 17, 2022). An ability to func�on in certain lower stress situa�ons such as a brief medical appointment does not necessarily demonstrate an ability to “complete tasks in the context of regular employment during a normal workday or work week.” 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00(C)(6)(b). The ALJ also failed to appropriately consider Dr. Tobe’s first-hand knowledge of Plain�ff. The Second Circuit has recognized the value of trea�ng source opinions when reviewing claims

involving mental impairments. See Steven M.W. v. Comm’r of Soc. Sec., No. 21-CV-390 (LJL) (GRJ),

, at *6 (S.D.N.Y. June 17, 2022) (ci�ng Flynn v. Comm’r of Soc. Sec. Admin.,

, 122 (2d Cir. 2018)), report and recommendation adopted, Washburn v. Comm’r of Soc. Sec.,

(S.D.N.Y. July 11, 2022). These errors are not harmless: by making a conclusory asser�on that the consultants’

opinions were supported and consistent with the evidence in the record and that Dr. Tobe’s opinion was not, the ALJ avoided grappling with the evidence that Plain�ff had extreme and marked as well as moderate limita�ons. The ALJ also found voca�onal assessments opining that Plain�ff would need a job coach or comparable support to func�on in a workplace to be unpersuasive because they “d[id] not reflect medical opinions on the severity of the claimant’s condi�ons.” (R. at 24.) The ALJ improperly failed to provide any explana�on of how the opinions

of the non-examining consultants – that Plain�ff had only moderate limita�ons and could func�on in a workplace – could be reconciled with the voca�onal assessments indica�ng that Plain�ff needed a job coach or comparable support. See Prieto v. Comm’r of Soc. Sec., No. 20- CV-3941 (RWL),

, at *13 (S.D.N.Y. Aug. 6, 2021) (“To [analyze consistency], the ALJ must assess how consistent the medical opinion is with the other medical and nonmedical sources in the claim.”) (emphasis added); Acosta Cuevas v. Comm’r of Soc. Sec., No. 20-CV-0502

(AJN) (KHP),

, at *10 (S.D.N.Y. Jan. 29, 2021) (“Consistency is an all- encompassing inquiry focused on how well a medical source is supported, or not supported, by the entire record . . . .”) (emphasis added), report and recommendation adopted, Cuevas v. Comm’r of Soc. Sec.,

, at *1 (S.D.N.Y. Mar. 10, 2022). CONCLUSION

For the foregoing reasons and the reasons stated on the record, Plain�ff’s mo�on is GRANTED and the case is REMANDED for further proceedings. The ALJ is directed to explicitly consider the supportability and consistency of all medical opinions, incorporating appropriate consideration of Dr. Tobe’s treating relationship with Plaintiff; to assess the consistency of all medical opinions, but particularly the consultants’ opinions, with all medical and nonmedical sources, including the opinions that Plaintiff would need a job coach or similar support to

function in a workplace; to carefully consider whether and to what extent Plaintiff’s ability to function in structured settings such as during brief medical or testing appointments is probative of his capacity to cope with the stress of sustained activities in a work environment; and to reassess Plaintiff’s RFC and the corresponding availability of suitable jobs that exist in significant numbers in the national economy. The Clerk of Court is respectfully requested to close the case. Dated: New York, New York February 5, 2025

nA ROBYN F. TARNOFSKY United States Magistrate Judge