Withus v. Saul

Full title: SHANNON F. WITHUS, Plaintiff, v. ANDREW M. SAUL, Commissioner, Social…

Court: United States District Court, S.D. New York

Date published: Dec 19, 2019

18-CV-10923 (VSB) (JLC) (S.D.N.Y. Dec. 19, 2019)

Opinion

18-CV-10923 (VSB) (JLC)

12-19-2019

SHANNON F. WITHUS, Plaintiff, v. ANDREW M. SAUL, Commissioner, Social Security Administration, [1] Defendant.

JAMES L. COTT, United States Magistrate Judge.

REPORT & RECOMMENDATION

JAMES L. COTT, United States Magistrate Judge.

To the Honorable Vernon S. Broderick, United States District Judge:

Plaintiff Shannon F. Withus brings this action seeking judicial review of a final determination by defendant Andrew M. Saul, the Commissioner of the Social Security Administration, denying Withus's application for Supplemental Security Income (“SSI”) benefits under the Social Security Act. The parties have cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that Withus's motion be denied and the Commissioner's cross-motion be granted.

TABLE OF CONTENTS

I. BACKGROUND ....................................................................................................... 1

A. Procedural Background ....................................................................................... 1

B. The Administrative Record ................................................................................. 2

1. Withus's Background ........................................................................................ 2

2. Relevant Medical and Opinion Evidence ......................................................... 3

a. Treatment Notes ........................................................................................... 3

b. Opinion Evidence .......................................................................................... 7

i. Laura Bernabe, LMHC--Treating Therapist ........................................... 7

ii. Kristen Laux, F.N.P.--Treating Nurse Practitioner ............................... 8

iii. Lauren Stack, Ph.D.--Consultative Psychologist .................................. 9

iv. Alex Gindes, Ph.D.--Consultative Psychologist ................................... 10

v. Ann Paden, P.N.P.--Treating Therapist ............................................... 11

vi. M. Marks, M.D.--SSA Evaluator .......................................................... 12

c. Third Party Function Report ...................................................................... 13

3. Hearing Before the ALJ ................................................................................. 13

II. DISCUSSION ........................................................................................................ 16

A. Legal Standards ................................................................................................. 16

1. Judicial Review of Commissioner's Determinations ..................................... 16

2. Commissioner's Determination of Disability ................................................. 18

a. Five-Step Inquiry ........................................................................................ 19

b. Duty to Develop the Record ........................................................................ 20

c. Evaluation of Opinion Evidence ................................................................. 21

d. Claimant's Credibility ................................................................................. 24

B. The ALJ's Decision ............................................................................................ 26

C. Analysis .............................................................................................................. 29

1. The ALJ Properly Evaluated the Opinion Evidence ..................................... 30

a. Laura Bernabe, LMHC ............................................................................... 30

b. Ann Paden, P.N.P. . ..................................................................................... 33

c. Kristen Laux, F.N.P. . .................................................................................. 34

d. Lauren Stack, Ph.D., and Alex Gindes, Ph.D. . .......................................... 35

e. Dr. M. Marks, State Agency Consultant .................................................... 37

f. Patricia Flanagan ........................................................................................ 40

2. The ALJ's Step Three Decision is Supported by Substantial Evidence ....... 42

a. Listings 12.04 and 12.06 ............................................................................. 43

b. Listing 12.05 ................................................................................................ 49

3. The ALJ's RFC Determination is Supported by Substantial Evidence ....... 50

a. The Record Demonstrates that Withus is Capable of Some Work ........... 50

b. The ALJ Did Not Fail to Account for Withus's Lifestyle or Environment 52

III. CONCLUSION .................................................................................................... 54

I. BACKGROUND

A. Procedural Background

Withus applied for SSI benefits on October 28, 2014. Administrative Record (“AR”), Dkt. No. 11, at 12. The alleged disability onset date is September 23, 1992. Id. at 12, 50, 147. The Social Security Administration (“SSA”) denied Withus's claim on August 31, 2015. Id. at 12. On October 12, 2015, she requested a hearing before an Administrative Law Judge (“ALJ”) pursuant to 20 C.F.R. § 416.1429. Id. Represented by counsel, Withus appeared before ALJ Dennis G. Katz on August 31, 2017. Id. In a written decision dated October 18, 2017, the ALJ concluded that Withus was not eligible for benefits. Id. at 9. Withus sought review of the ALJ's decision by the SSA Appeals Council on December 12, 2017. Id. at 1. This request was denied on September 24, 2018, rendering the ALJ's decision final. Id. at 1.

The current action was initiated on November 21, 2018 when Withus, again represented by counsel, timely filed a complaint seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Complaint, Dkt. No. 1 at 1. The Commissioner answered Withus's complaint by filing the administrative record on April 8, 2019. AR, Dkt. No. 11. On June 6, 2019, Withus moved for remand for further administrative proceedings (Dkt. No. 12) and submitted a memorandum in support of her motion (“Pl. Mem.”), Dkt. No. 13. On September 20, 2019, the Commissioner cross-moved for judgment on the pleadings and submitted a memorandum in support of his cross-motion (“Def. Mem.”). Dkt. Nos. 19-20. Withus replied on October 1, 2019 (“Pl. Reply”), Dkt. No. 21.

B. The Administrative Record

1. Withus's Background

Withus, who was 22 years old at the time of her SSI application, alleges disability beginning the day she was born, September 23, 1992. AR at 12, 50, 147. She lives with her mother in Hopewell Junction, New York. Id. at 35. Withus completed the 12th grade in June 2012, earning a special education diploma. Id. at 19, 152; Pl. Mem. at 17. She has never been employed. Id. at 151. At the time of her hearing, Withus was attending classes three days a week in the morning to earn her GED, but had failed the math portion of the test twice. Id. at 19-20.

Although Withus passed her written driving test, she does not drive. Id. at 40-41. She sometimes takes public transportation, but maintains that doing so can make her very “nervous, ” so her mother often drives her around town. Id. at 35-37, 42. When she is not in class, she does chores around the house, plays video games, watches television, and uses a laptop computer and smartphone. Id. at 36-37, 40- 41. Withus reported that she reads Stephen King novels, but her mother states that she has “never finished a book.” Id. at 41, 162.

Withus applied for SSI based on several alleged medical conditions: attention deficit hyperactivity disorder (“ADHD”), depression, anxiety, and borderline IQ. Id. at 151.² During the hearing and in her submissions to the SSA, Withus described the scope of her mental impairments and how they interfere with her functioning. She explained that she has depressive episodes in which she is unable to leave her room for two weeks. Id. at 39. Withus also stated that she gets nervous around large crowds and loud noises, to the point at which her body shakes. Id. at 38, 43- 45. She has been seeing mental health counselors since 2006, in both group and individual therapy sessions. Id. at 222, 292, 294. Withus took stimulants and antidepressant medications semi-regularly for several years and explained that she had taken some medicine that “kind of helps” with difficulties she faces. Id. at 43.

2 As the ALJ noted in his written decision, the administrative record includes some evidence of physical impairments including asthma, urinary tract infection, tendonitis, pharyngitis, and dermatitis. AR at 15, 264, 267-68, 275, 278, 284. These conditions were not discussed at the hearing, developed in the record, or addressed in Withus's motion. Because she only contests the ALJ's conclusions regarding her mental impairments, the Court will not address her history of physical impairments. See, e.g., Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (court has discretion to treat unargued claims as waived).

2. Relevant Medical and Opinion Evidence

a. Treatment

The record includes a psychological assessment and treatment notes for nearly 10 years, during which time Withus was seen regularly by Licensed Mental Health Counselor (“LMHC”) Laura Bernabe of Summit Counseling & Wellness Group and Nurse Practitioner Anne Paden. Id. at 197-216, 239-44.³ In the assessment dated April 2, 2008, Withus's diagnoses were listed as depression, adjustment disorder, and ADHD--the last of which she has had since the age of nine. Id. at 191, 196; Pl. Mem. at 5. Withus was prescribed Concerta, but this was later substituted with Strattera after she exhibited hyper-pressured speech. Id. at 191; Pl. Mem. at 5.⁴ Withus had also taken Ritalin and Adderall for her ADHD. Id. at 191. A 2008 treatment note describes Adderall treatment as “wonderful.” Id. ⁵Withus was assessed to have normal speech, good abstraction and impulse control, and limited concentration. Id. at 195.

3 It is not clear whether the mental assessment dated April 2008 (AR at 191-96) and the progress notes included in the record from 2008-2017 (id. at 197-216, 239- 44) are attributable to Bernabe or Paden, as they are unsigned. The ALJ ascribes the notes to Bernabe (id. at 20), as does the Court Transcript Index (see Court Transcript Index, Exhibits 1F, 2F), but Withus's memorandum of law attributes all progress notes to Paden. Pl. Mem. at 5, 8-9. Bernabe's name is written under the “How Referred” section of the assessment rather than on the signature page, and one of the progress notes included in the record lists “APNP-P” under “Provider Name.” Id. at 191, 239. Further, in comparing the handwriting of the progress notes with material signed by Paden and Bernabe, the notes appear to be handwritten by Paden. Compare Anne Paden Mental RFC Assessment dated May 31, 2017 (id at 251-56), and Progress Notes (id. at 197-216, 239-44) with Laura Bernabe Impairment Questionnaire dated May 11, 2017 (id. at 245-50). The record includes evidence that both Bernabe and Paden have regularly seen Withus for therapy from the age of 16. Id. at 222, 228. The Court will not make an assumption as to the author of the treatment notes, but given that neither Bernabe nor Paden are “acceptable” medical sources and their opinions are evaluated by the ALJ in similar manners, the lack of clarity as to the author of the treatment notes does not affect the outcome of the case.

4 Concerta is also known as Methylphenidate. See generally Methylphenidate, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/ meds/a682188.html (last visited December 19, 2019). Strattera is also known as Atomoxetine. See generally Atomoxetine, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/ a603013.html (last visited December 19, 2019). Withus states that “Concerta had been started about 6 months prior” (Pl. Mem. at 5) but the treatment notes state that she had been prescribed Concerta first, then Strattera. AR at 191.

5 Adderall is a combination of Dextroamphetamine and Amphetamine. See generally Dextroamphetamine and Amphetamine, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/a601234.html (last visited December 19, 2019). Ritalin is also known as Methylphenidate. See generally Methylphenidate, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/ meds/a682188.html (last visited December 19, 2019).

The treatment notes included in the record span the time period from 2008 to 2017 and indicate that Withus had numerous symptoms that persisted intermittently over several years.⁶ For example, there were many occasions in which Withus reported feeling depressed. Id. at 202, 206, 211, 241, 243. Other times, however, she reported feeling no depression, “great, ” and “calm.” Id. at 199, 201, 202, 204, 206-08, 210-12, 239, 241-42, 244. Further, Withus often described problems she was having academically and issues she faced with focusing or concentrating. Id. at 197, 206, 212. Nevertheless, she reported that some days she was improving her grades, focusing and/or concentrating well, and studying for the GED. Id. at 197-99, 201, 210, 212, 208-09, 241, 244. Some treatment notes describe her symptoms of anxiety, such as nightmares or a feeling of tightness in her chest when in a crowd. Id. at 198-99, 201, 242. She also occasionally reported having trouble sleeping or maintaining an appropriate sleep schedule. Id. at 198, 206, 242. At other times, however, her sleep was good and she stated she was engaging in more social activities with friends or her boyfriend. Id. at 201, 202, 206.

6 Withus filed her application on October 28, 2014, but the ALJ noted that he reviewed all medical history in the record, consistent with 20 C.F.R. § 416.92. AR at 12. While the ALJ was not required to consider evidence that predates the filing date, Brogan-Dawley v. Astrue, 484 Fed.Appx. 632, 633 (2d Cir. 2012), such evidence may nevertheless be probative, particularly because Withus's alleged onset date predates the filing of her application and therefore may shed light on an ongoing, chronic impairment.

The treatment notes also document which medications Withus has taken and delineate certain periods in which she stopped taking her medications. She was taking Strattera from at least April 2008 to September 2009, with incremental increases in dosage from 25mg to 50mg. Id. at 197, 199-200. She was prescribed Vistaril in January 2010, but by October stated that she had not taken the medications in two weeks. Id. at 202. This interruption in medication precipitated some depressive symptoms, and she was thereafter prescribed Wellbutrin. Id. ⁷ In March 2011, Withus was taking Wellbutrin and Adderall, and by December 2011 was taking Fluoxetine, Wellbutrin, Vistaril, and Adderall. Id. at 204, 207. By January 2014, Withus had discontinued taking all medications and in March 2015, Withus stated that she was feeling better after two years without them--she “felt like [a] zombie [on medications].” Id. at 208-09, 239. Treatment notes from September and December 2015 indicate that Withus began taking Wellbutrin again (100 mg daily), and between at least May and October of 2016 she was taking Wellbutrin and Lexapro. Id. at 243-44, 273, 276, 279.⁸

7 Wellbutrin is also known as Bupropion. See generally Bupropion, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/ a695033.html (last visited December 19, 2019). Vistaril is also known as Hydroxyzine. See generally Hydroxyzine, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/meds/ a682866.html (last visited December 19, 2019).

8 Lexapro is also known as Escitalopram. See generally Escitalopram, U.S. National Library of Medicine: Medline Plus, https://medlineplus.gov/druginfo/ meds/a603005.html (last visited December 19, 2019).

Aside from therapy treatment notes, physical examination notes in the record also illustrate symptoms of Withus's mental impairments. On June 22, 2015, for example, Kristen Laux, F.N.P., conducted a general physical examination of Withus, from which she reported that Withus had attention deficit disorder (“ADD”) and depression “on and off.” Id. at 270-72.⁹ Withus described feeling “very sad for a while” after her dog was put down. Id. at 270. In May 2017, Withus presented for her annual physical examination and reported ADD and anxiety to Laux, but “denie[d] other psychological symptoms.” Id. at 280.

9 While records from 2008 state that Withus had been diagnosed with ADHD since the age of nine, AR at 191, 196, she self-reported to having ADD to Laux on June 22, 2015. Id. at 270-72.

b. Opinion Evidence

i. Laura Bernabe, LMHC--Treating Therapist

Licensed Mental Health Counselor Laura Bernabe prepared a treating source statement on behalf of Withus on June 22, 2015. Id. at 217-19. Bernabe wrote that she first saw Withus in November 2006, and that her diagnoses were major depression and ADHD. Id. at 217.¹⁰ Bernabe observed that Withus has an “inability to focus, concentrate, multitask, ” and “mood dysregulation which leads to inability to function in activity of daily living (not showering, getting out of bed).” Id.

10 There is some discrepancy in the administrative record as to when Bernabe began treating Withus. The SSA Field Office Disability Report states that Withus's first visit with Bernabe was on October 23, 2014, while the SSA Appeals Disability Report lists her first visit with Bernabe as November 2008. AR at 154, 170. The Court finds no reason to discredit Bernabe's statements in multiple reports that she began to see Withus in 2006. Id. at 217, 222, 245, 294.

Bernabe also prepared a mental impairment questionnaire in July 2015. Id. at 222-27. In this questionnaire, Bernabe observed that Withus was highly responsive to treatment and was benefitting from continued group and individual therapy, but opined that Withus “has a lack of concentration. . . a hard time focusing on tasks at hand, [and] is extremely impulsive.” Id. at 222. She further opined that Withus has “extreme” functional limitations with respect to activities of daily living, maintaining social functioning, and maintaining concentration, persistence, or pace. Id. at 226. She concluded that Withus can only follow one-step instructions, cannot complete tasks, needs to be told when to bathe, change, and brush her teeth, and is “not socially appropriate.” Id. at 225. Bernabe also estimated that Withus's impairments would cause her to be absent from work for more than four days per month. Id. at 227.

On May 11, 2017, Bernabe completed a second mental impairment questionnaire for Withus that echoed the observations set forth in her 2015 questionnaire, including finding all of the same “extreme” functional limitations, and stated that Withus “continues to have difficulty with change and following any simple instructions without feeling overwhelmed.” Id. at 249-50. Finally, on August 6, 2017, Bernabe prepared another treating source statement in which she again opined that Withus struggled with concentration, impulsivity control, and understanding directions. Id. at 294. She asserted that Withus has “worked very hard on managing her emotions in healthy ways, ” despite years of struggling on and off with depression and anxiety. Id.

ii. Kristen Laux, F.N.P.--Treating Nurse Practitioner

On June 22, 2015, Kristen Laux, F.N.P., completed a treating source statement for Withus. Id. at 220-21. Laux described Withus as somewhat depressed and opined that her depression precipitated fatigue. Id. at 220. She observed that Withus had no limitations in her ability to lift and carry, stand or walk, sit, or push and pull. Id. at 221. Laux also completed a medical source statement of Withus's ability to do physical work-related activities on June 10, 2017. Id. at 257-62.¹¹

11 Laux found that Withus could carry up to 50 pounds occasionally, up to ten pounds continuously, and could only sit, stand, or walk for four hours at a time and a total of four hours in an eight-hour work day. Id. at 257-58. She noted that Withus could reach, handle, finger, feel, and push or pull continuously, and had frequent operation of both her left and right foot. Id. at 259. Finally, Laux opined that Withus could occasionally tolerate exposure to humidity and wetness, dust, odors, fumes and pulmonary inhalants, and vibrations, never tolerate exposure to unprotected heights, extreme cold or heat, and could never move mechanical parts. Id. at 261.

iii. Lauren Stack, Ph.D.--Consultative Psychologist

Psychologist Lauren Stack, Ph.D., conducted a consultative evaluation of Withus on July 16, 2015. Id. at 228-33. Dr. Stack noted that Withus's mental health symptoms began presenting at the age of seven, beginning with anxiety in grade school, and that she had struggled with depression from the age of 15. Id. At 228. According to Stack:

[Withus] has no impairment in her ability to follow and understand simple directions and instructions or perform simple tasks independently. She has mild impairment in her ability to make appropriate decisions. [Withus] has moderate impairment in her ability to maintain attention and concentration, maintain a regular schedule, learn new tasks, perform complex tasks independently, relate adequately with others, and appropriately deal with stress. These difficulties are caused by cognitive deficits and symptoms of depression, anxiety, and panic.

Id. at 231. Dr. Stack opined that these difficulties were consistent with psychiatric and cognitive problems, and that these “may significantly interfere with [Withus's] ability to function on a daily basis.” Id. Finally, Dr. Stack noted that Withus “will not be able to manage her own funds due to her mental health and cognitive problems, and her self report.” Id. at 232.

iv. Alex Gindes, Ph.D.--Consultative Psychologist

On August 20, 2015, Alex Gindes, Ph.D., conducted an intelligence evaluation of Withus. Id. at 234-38. During the evaluation, he observed that Withus occasionally needed him to repeat instructions because she had difficulty in recall and was inconsistent in attention and concentration. Id. at 235. Despite these constraints, however, “she usually responded in a deliberate and orderly fashion.” Id. In conducting the Wechsler Adult Intelligence Assessment, Fourth Edition (“WAIS-IV”), Dr. Gindes assessed Withus's Full Scale IQ to be 75--overall, in the “borderline range of intellectual functioning.” Id. at 236. He evaluated her scores to be normal with respect to verbal reasoning skills and processing new information, and in the borderline range for vocabulary, general fund of knowledge, short-term recall, arithmetic, abstract reasoning skills, and visual motor coordination skills. Id.

Dr. Gindes further opined that “[h]er adaptive functioning is limited in the areas of self-direction and academics” and “[h]er difficulties seem to be associated with her inattention.” Id. He issued the following medical source statement:

The claimant is able to follow and understand simple directions and instructions and perform simple tasks independently with no limitations. Her abilities to maintain attention and concentration and maintain a regular schedule are moderately limited. She can learn new tasks with mild limitations. Her ability to perform complex tasks independently is moderately limited. She can make appropriate decisions and relate adequately with others with no limitations. Her ability to appropriately deal with stress is moderately limited. The claimant's difficulties are caused by depression associated with cognitive deficits.

The results of the examination appear to be consistent with cognitive problems that may significantly interfere with the claimant's ability to function on a daily basis.

Id. Dr. Gindes diagnosed Withus with unspecified depressive disorder and ADHD, by history. Id. Like Dr. Stack, he recommended that she continue with the mental health treatment she was currently receiving. Id. at 232, 237.

v. Ann Paden, P.N.P--Treating Therapist

Paden is a psychiatric nurse practitioner who had been meeting monthly with Withus since the age of 16. Id. at 228. On May 31, 2017, Paden completed a mental impairment questionnaire on behalf of Withus. Id. at 251-56. Among a No. of signs and symptoms, Paden identified that Withus suffered from generalized persistent anxiety, emotional withdrawal or isolation, hyperactivity, easy distractibility, sleep disturbance, and recurrent severe panic attacks occurring on the average of at least once a week. Id. at 252. Paden evaluated Withus to be “unable to meet competitive standards” in all mental abilities and aptitudes needed to do unskilled work, semiskilled work, skilled work, and particular types of jobs. Id. at 253. Finally, she assessed Withus to have marked functional limitations in activities of daily living, maintaining social functioning, and maintaining concentration, persistence or pace. Id. at 255.

vi. M. Marks, M.D.--SSA Evaluator

SSA Evaluator Dr. M. Marks conducted an assessment of Withus's mental residual functional capacity in August 2015 as part of Withus's initial SSI application. Id. at 51-60. Upon reviewing the record, Dr. Marks concluded that Withus had moderate limitations in her ability to remember locations and work-like procedures; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual; sustain an ordinary routine without special supervision; and complete a normal workday and workweek without interruptions from psychologically based symptoms. Id. at 57-58. Dr. Marks further opined that she was markedly limited in her ability to carry out detailed instructions, but not significantly limited in her ability to carry out short and simple instructions; work in coordination with others; or make simple work-related decisions. Id.

Dr. Marks assessed Withus to have:

[m]ildly impaired attention, concentration, and memory skills [and] below average cognitive functioning with limited fund of information, fair insight and judgment . . . [Withus] is moderately disabled in ability to maintain attention/ concentration, maintain regular schedule, learn new tasks, perforn [sic] complex tasks independently, relate adequately with others, ans [sic] appropriately deal with stress. IQ is in the borderline range. . .

[Withus is] able to understand and remember simple instructions only, she is able to maintain an ordinary routine with some extra support. She is able to interact and adapt without marked limitations.

Id. at 59. While Dr. Marks determined that data from the record “are consistent with severe impairments, ” the report characterizes Withus's credibility as “partial, ” citing both Bernabe's 2015 treating source statement and the consultative examinations from Drs. Stack and Gindes as support for the conclusion that her functional limitations were moderate. Id.

c. Third Party Function Report

Withus's mother Patricia Flanagan completed a third party function report on behalf of her daughter on August 10, 2015. Id. at 158-65. In the report, Flanagan corroborated other reports describing the difficulties Withus faced in following directions. Id. at 158. She observed that Withus “becomes panicked in new situations” and rarely finishes tasks to completion. Id. According to Flanagan, although Withus attends school, she “usually does not make a complete week.” Id. at 159. Flanagan must remind her daughter to wear clean clothes, bathe regularly, wash her hair, groom herself, and take her medications. Id. at 159-60. However, Withus is able to feed herself and use the toilet without assistance. Id. Finally, Flanagan stated that Withus does not handle stress or changes in routine well; when faced with these challenges, Withus “shuts down completely, ” and “usually will not attend [school] or stays home and sleeps.” Id. at 164.

3. Hearing Before the ALJ

Represented by counsel, Withus appeared before ALJ Katz by video teleconference on August 31, 2017. Id. at 31-49. Testimony was taken from Withus, who spoke about her background, education, activities, and mental limitations, and vocational expert Robert Baker, MS, CRC, who was examined by the ALJ and Withus's counsel. Id.

Withus testified that she was looking for a job but believed that employers did not want to hire her because they “probably” wanted someone with a high school diploma, whereas she has a special education diploma. Id. at 34. She also mentioned that she was taking classes to earn her GED three days a week from around 7:15 a.m. to around noon. Id. at 36. Withus reported that, in her free time, she plays video games, watches television, and uses a laptop computer and a smartphone. Id. at 36, 40-41. She also described that she completes chores around the house, including taking care of animals, doing the dishes, sweeping, vacuuming, and cleaning the windows. Id. at 36-37. In terms of social interactions, Withus testified that she has two friends, one of whom lived in a different state. Id. at 39.

At the ALJ's suggestion that cleaning houses may be suitable employment given her daily activities, Withus replied that such a position “could be a good job for [her], maybe.” Id. at 38. However, in describing the symptoms associated with her mental impairments, Withus noted that she has clinical depression and “very bad anxiety, ” explaining that sometimes, when “depression hits, ” she does not leave her house and “can go two weeks and stay in bed and not do anything.” Id. at 39. She testified that she had recently experienced a depressive episode triggered by the death of her cat, after which she spent two weeks crying in her room. Id. at 43. While she experiences these depressive episodes once every three months, Withus stated that between those periods she sometimes has days where she feels depressed and does not want to leave the house. Id. Withus also described that she used to engage in self-harm before she was diagnosed with depression. Id.

Separately from her depressive episodes, Withus reported that she is “not good” with large crowds or loud noises, as she gets very nervous. Id. at 38, 43-44. She categorized a “large crowd” as a group of more than 20 people. Id. at 45. When she is nervous, she does not take showers and her body shakes. Id. at 44. During these times, she can help around the house more than when she is in a depressive episode, she just “move[s] slowly.” Id.

Following Withus's testimony, the ALJ sought testimony from vocational expert Robert Baker. Id. at 45-48. The ALJ asked about employment for a hypothetical person of Withus's age who could perform any exertional level but was limited in that the job “would have to be very simple, basic, unskilled, routine, repetitive type of work” with no more than 20 people around the employee at a time. Id. at 46. Baker opined that such a person could perform the work of a collator operator, a router, a domestic laundry worker, or a cleaner housekeeper. Id. at 46- 47. Withus's attorney then questioned Baker about whether lacking a high school diploma could impede access to the positions stated. Id. at 48. Baker testified that “it could, ” but none of the positions typically required a high school diploma. Id. Withus's attorney also asked Baker whether an individual who was absent up to 40 days a year and who is likely to be off-task for 15 percent of the workday would be able to sustain employment. Id. ¹² Baker responded that these limitations would likely make the person not employable. Id.

12 Withus's attorney calculated 40 days in accordance with Withus's testimony that she has depressive episodes that last two weeks every three months or so. Id. at 48.

II. DISCUSSION

A. Legal Standards

1. Judicial Review of Commissioner's Determinations

An individual may obtain judicial review of a final decision of the Commissioner in the “district court of the United States for the judicial district in which the plaintiff resides.” 42 U.S.C. § 405(g). The district court must determine whether the Commissioner's final decision applied the correct legal standards and whether it is supported by substantial evidence. Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks and alterations omitted); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations . . . whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high”).

The substantial evidence standard is a “very deferential standard of review.” Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012). The Court “must be careful not to substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review.” DeJesus v. Astrue, 762 F.Supp.2d 673, 683 (S.D.N.Y. 2011) (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)) (internal quotation marks and alterations omitted). “[O]nce an ALJ finds facts, [a court] can reject those facts ‘only if a reasonable factfinder would have to conclude otherwise.'” Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted).

In weighing whether substantial evidence exists to support the Commissioner's decision, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Selian, 708 F.3d at 417 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)). On the basis of this review, the court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding . . . for a rehearing.” 42 U.S.C. § 405(g).

In certain circumstances, the court may remand a case solely for the calculation of benefits, rather than for further administrative proceedings. “In . . . situations[ ] where this Court has had no apparent basis to conclude that a more complete record might support the Commissioner's decision, [the court has] opted simply to remand for a calculation of benefits.” Michaels v. Colvin, 621 Fed.Appx. 35, 38-39 (2d Cir. 2015) (summary order) (quoting Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999)) (internal quotation marks omitted). The court may remand solely for the calculation of benefits when “the records provide[ ] persuasive evidence of total disability that render[s] any further proceedings pointless.” Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 1999). However, “[w]hen there are gaps in the administrative record or the ALJ has applied an improper legal standard, [the court has], on numerous occasions, remanded to the [Commissioner] for further development of the evidence.” Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)) (alteration in original).

2. Commissioner's Determination of Disability

Under the Social Security Act, “disability” is defined as the “inability 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 12 months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A). Physical or mental impairments must be “of such severity that [the claimant] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

In assessing a claimant's impairments and determining whether they meet the statutory definition of disability, the Commissioner “must make a thorough inquiry into the claimant's condition and must be mindful that ‘the Social Security Act is a remedial statute, to be broadly construed and liberally applied.'” Mongeur, 722 F.2d at 1037 (quoting Gold v. Sec'y of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972)). Specifically, the Commissioner's decision must take into account factors such as: “(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.” Id. (citations omitted).

a. Five-Step Inquiry

“The Social Security Administration has outlined a ‘five-step, sequential evaluation process' to determine whether a claimant is disabled[.]” Estrella v. Berryhill, 925 F.3d 90, 94 (2d Cir. 2019) (citations omitted); 20 C.F.R. § 404.1520(a)(4). First, the Commissioner must establish whether the claimant is presently employed. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is unemployed, at the second step the Commissioner determines whether the claimant has a “severe” impairment restricting her ability to work. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant has such an impairment, the Commissioner moves to the third step and considers whether the medical severity of the impairment “meets or equals” a listing in Appendix One of Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is considered disabled. Id.; 20 C.F.R. § 404.1520(d). If not, the Commissioner continues to the fourth step and determines whether the claimant has the residual functional capacity (“RFC”) to perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). Finally, if the claimant does not have the RFC to perform past relevant work, the Commissioner completes the fifth step and ascertains whether the claimant possesses the ability to perform any other work. 20 C.F.R. § 404.1520(a)(4)(v).

The claimant has the burden at the first four steps. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). If the claimant is successful, the burden shifts to the Commissioner at the fifth and final step, where the Commissioner must establish that the claimant has the ability to perform some work in the national economy. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).

b. Duty to Develop the Record

“Social Security proceedings are inquisitorial rather than adversarial.” Sims v. Apfel, 530 U.S. 103, 110-11 (2000). Consequently, “the social security ALJ, unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks omitted). As part of this duty, the ALJ must “investigate the facts and develop the arguments both for and against granting benefits.” Sims, 530 U.S. at 111. Specifically, under the applicable regulations, the ALJ is required to develop a claimant's complete medical history. Pratts, 94 F.3d at 37 (citing 20 C.F.R. §§ 404.1512(d)-(f)). This responsibility “encompasses not only the duty to obtain a claimant's medical records and reports but also the duty to question the claimant adequately about any subjective complaints and the impact of the claimant's impairments on the claimant's functional capacity.” Pena v. Astrue, No. 07-CV-11099 (GWG), 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008) (citations omitted).

Whether the ALJ has satisfied this duty to develop the record is a threshold question. Before determining whether the Commissioner's final decision is supported by substantial evidence under 42 U.S.C. § 405(g), “the court must first be satisfied that the ALJ provided plaintiff with ‘a full hearing under the Secretary's regulations' and also fully and completely developed the administrative record.” Scott v. Astrue, No. 09-CV-3999 (KAM) (RLM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010) (quoting Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)); see also Rodriguez v. Barnhart, No. 02-CV-5782 (FB), 2003 WL 22709204, at *3 (E.D.N.Y. Nov. 7, 2003) (“The responsibility of an ALJ to fully develop the record is a bedrock principle of Social Security law.”) (citing Brown v. Apfel, 174 F.3d 59 (2d Cir. 1999)). The ALJ must develop the record even where the claimant has legal counsel. See, e.g., Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). Remand is appropriate where this duty is not discharged. See, e.g., Moran, 569 F.3d at 114-15 (“We vacate not because the ALJ's decision was not supported by substantial evidence but because the ALJ should have developed a more comprehensive record before making his decision.”).

c. Evaluation of Opinion Evidence

“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d)) (internal quotation marks omitted). A treating physician's opinion is given controlling weight, provided the opinion as to the nature and severity of an impairment “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). The regulations define a treating physician as the claimant's “own physician, psychologist, or other acceptable medical source who provides [the claimant] . . . with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant].” 20 C.F.R. § 404.1502. Deference to such medical providers is appropriate because they “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical evidence alone or from reports of individual examinations.” 20 C.F.R. § 404.1527(c)(2).

A treating physician's opinion is not always controlling. For example, a legal conclusion “that the claimant is ‘disabled' or ‘unable to work' is not controlling, ” because such opinions are reserved for the Commissioner. Guzman v. Astrue, No. 09-CV-3928 (PKC), 2011 WL 666194, at *10 (S.D.N.Y. Feb. 4, 2011) (citing 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1)); accord Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“A treating physician's statement that the claimant is disabled cannot itself be determinative.”). Additionally, where “the treating physician issued opinions that [were] not consistent with other substantial evidence in the record, such as the opinion of other medical experts, the treating physician's opinion is not afforded controlling weight.” Pena ex rel. E.R., 2013 WL 1210932, at *15 (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)) (internal quotation marks omitted) (alteration in original); see also Snell, 177 F.3d at 133 (“[T]he less consistent [the treating physician's] opinion is with the record as a whole, the less weight it will be given.”).

Importantly, however, “[t]o the extent that [the] record is unclear, the Commissioner has an affirmative duty to ‘fill any clear gaps in the administrative record' before rejecting a treating physician's diagnosis.” Selian, 708 F.3d at 420 (quoting Burgess, 537 F.3d at 129); see also Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (discussing ALJ's duty to seek additional information from treating physician if clinical findings are inadequate). As a result, “the ‘treating physician rule' is inextricably linked to a broader duty to develop the record. Proper application of the rule ensures that the claimant's record is comprehensive, including all relevant treating physician diagnoses and opinions, and requires the ALJ to explain clearly how these opinions relate to the final determination.” Lacava v. Astrue, No. 11-CV-7727 (WHP) (SN), 2012 WL 6621731, at *13 (S.D.N.Y. Nov. 27, 2012) (“In this Circuit, the [treating physician] rule is robust.”), adopted by 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012).

If the administrative record provides no treating physician's opinion, then “the Commissioner must still consider whether the consultative opinions are supported by and consistent with the other evidence in the record . . . .” Daniels v. Colvin, No. 14-CV-2354 (SN), 2015 WL 1000112, at *17 (S.D.N.Y. Mar. 5, 2015) (citing 20 C.F.R. § 416.927(c) (“The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, and the better an explanation a source provides for an opinion, the more weight we will give that opinion. [Further], the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.”) (citations omitted)). An ALJ's failure to afford specific weight to the opinion of a non-treating physician is legal error. See, e.g., Hubbard v. Comm'r of Soc. Sec., No. 18-CV-3119 (RWL), 2019 WL 2940150, at *10 (S.D.N.Y. Aug. 5, 2019) (citing Sottasante v. Colvin, 209 F.Supp.3d 578, 593 (W.D.N.Y. 2016)). This error requires that the matter be remanded to the ALJ “where the unconsidered evidence is significantly more favorable to the claimant than the evidence considered.” Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010). However, where the correct application of the rule would lead to the same conclusion, courts need not remand. Schaal, 134 F.3d at 504.

d. Claimant's Credibility

An ALJ's credibility finding as to the claimant's disability is entitled to deference by a reviewing court. Osorio v. Barnhart, No. 04-CV-7515 (DLC), 2006 WL 1464193, at *6 (S.D.N.Y. May 30, 2006). “[A]s with any finding of fact, ‘[i]f the Secretary's findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints.'” Id. (quoting Aponte v. Sec'y of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)). Still, an ALJ's finding of credibility “must . . . be set forth with sufficient specificity to permit intelligible plenary review of the record.” Pena, 2008 WL 5111317, at *10 (internal quotation marks omitted) (quoting Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988)). “The ALJ must make this [credibility] determination ‘in light of the objective medical evidence and other evidence regarding the true extent of the alleged symptoms.'” Id. (quoting Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984)).

SSA regulations provide that statements of subjective pain and other symptoms alone cannot establish a disability. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(a)). Accordingly, the ALJ must follow a two-step framework for evaluating allegations of pain and other limitations. Id. First, the ALJ considers whether the claimant suffers from a “medically determinable impairment that could reasonably be expected to produce” the symptoms alleged. Id. (citing 20 C.F.R. § 404.1529(b)). “If the claimant does suffer from such an impairment, at the second step, the ALJ must consider ‘the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence' of record.” Id. (citing 20 C.F.R. § 404.1529(a)). Among the kinds of evidence that the ALJ must consider (in addition to objective medical evidence) are:

1. The individual's daily activities; 2. [t]he location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. [f]actors that precipitate and aggravate the symptoms; 4. [t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. [t]reatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. [a]ny measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. [a]ny other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.

Pena, 2008 WL 5111317, at *11 (citing SSR 96-7p, 1996 WL 374186, at *3 (SSA July 2, 1996)).

B. The ALJ's Decision

In his October 18, 2017 decision, ALJ Katz concluded that Withus was not disabled for purposes of the Social Security Act. Id. at 26. At the first step of the five-step inquiry, the ALJ found that Withus had not engaged in substantial gainful activity since the application date. Id. at 14. At the second step, the ALJ found that Withus had severe impairments of ADHD, a depressive disorder, an intellectual disability, and borderline intellectual functioning. Id. He deemed her asthma, urinary tract infection, tendonitis, pharyngitis, and dermatitis to be non-severe. Id. at 14-15.

At step three, the ALJ found that none of Withus's impairments met or equaled the severity of the listed impairments. Id. at 15. In considering listing 12.04 for each of Withus's impairments, the ALJ drew from the treatment notes in the record and opinion evidence provided by Flanagan, Dr. Gindes, Dr. Stack, and F.N.P. Laux to conclude that Withus's conditions did not satisfy the requirements of either the paragraph B or C criteria. Id. at 15-17. As to paragraph B criteria, which require that the claimant has at least one extreme or two marked limitations in broad areas of functioning, the ALJ found that Withus had only moderate limitations in understanding, remembering, or applying information and concentrating, persisting, or maintaining pace and no limitation in interacting with others or adapting or managing oneself. Id. at 15-16. With respect to paragraph C criteria, the ALJ found that the evidence failed to establish a serious and persistent mental disorder and marginal adjustment on the part of Withus. Id. at 17. In considering listing 12.05, the ALJ concluded that Withus's conditions did not meet the criteria because, inter alia, she could independently feed, dress, and bathe herself and did not have two marked or one extreme limitation under the (B)(2) criteria. Id. at 18-19.

At step four, the ALJ found that Withus had the residual functional capacity to perform a full range of work at all exertional levels but with the nonexertional limitation that she can only perform simple, basic, unskilled, routine, repetitive type work. Id. at 19. To support this finding, the ALJ applied the two-step process for evaluating Withus's symptoms. At the first step, the ALJ found that Withus suffered from “medically determinable [mental] impairments that could reasonably be expected to cause some of the alleged symptoms.” Id. at 20. However, at the second step, the ALJ found that Withus's statements about the intensity, persistence and limiting effects of those impairments were “not entirely consistent” with other evidence in the record, including opinion evidence and the notes of those who had treated her. Id. at 19-22. The ALJ also observed that Withus has had “issues with noncompliance with medications, ” despite responding positively to Wellbutrin and stimulant medication as a child. Id. at 22 (citing treatment notes from 2008-2010, id. at 197-98).

The ALJ then weighed the opinion evidence. Finding it to be supported by the record and consistent with other opinions, he accorded “significant weight” to Dr. Marks's opinion that Withus had mild to moderate limitations only and that she could follow simple instructions and adapt without marked limitations. Id. at 23. Next, the ALJ gave “some weight” to Bernabe's opinion that Withus was limited in understanding, memory, sustained concentration, and social interaction and adaptation. Id. However, the ALJ gave “little weight” to her opinion that Withus had extreme limitations in mental functioning, as he found nothing in the treatment notes to support this conclusion. Id. at 23-24. The ALJ determined Withus to be more capable of performing job-related functions and more socially adept than indicated by Bernabe's opinions. Id.

The ALJ did not give specific weight to the opinion of Paden, but observed that both Paden and Bernabe's 2017 opinions finding significant functional limitations and an inability to meet competitive standards in the workplace were completed through “check-off” format questionnaires without reference to specific treatment notes. Id. at 24. He assigned “little weight” to Laux's opinions as to Withus's physical limitations because Withus's claims were made on the basis of mental impairments alone, and no evidence suggested that Withus suffered from physical impairments for more than a year. Id. at 24.

Further, the ALJ heavily cited the opinions of consultative examiners Dr. Stack and Dr. Gindes in making his RFC determination. Id. at 20-21, 24. Although he did not give specific weight to their opinions, the ALJ found them to be “more consistent” with Withus's testimony and other evidence in the record. Id. at 24. Lastly, the ALJ assigned “some weight” to Flanagan's third party function report because she has known Withus her entire life. Id. at 25.

In weighing the testimony and evidence, the ALJ found that Withus can fulfill the demands of basic work activities, including “understanding, carrying out and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting.” Id. at 22-23. Concluding the step four analysis, the ALJ found that Withus had no past relevant work. Id. at 24.

Finally, at step five, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Withus could perform considering her RFC, age, education, and work experience. Id. Relying on the testimony of vocational expert Baker, the ALJ found that Withus was capable of performing the occupational duties of a collator operator, router, and a laundry or domestic worker. Id. at 25-26. Accordingly, the ALJ concluded that Withus was not disabled within the meaning of the Social Security Act and denied her claim. Id. at 26.

C. Analysis

Withus contends that the ALJ committed several errors in denying her SSI application. She argues that the ALJ assigned improper weight to each opinion in the record (Pl. Mem. at 22-25; Pl. Reply at 1-5); erred in finding that her impairments did not meet or equal listings 12.04, 12.06, and 12.05(B) (Pl. Mem. at 16-18, 21-25; Pl. Reply at 5-8); and made an RFC finding that was not supported by substantial evidence. Id. at 19-21; Pl. Reply at 1-5; 8-9. The Commissioner disagrees and has responded to each of these claims in his cross-motion papers. Def. Mem. at 14-25. As discussed below, the Court concludes that the ALJ properly evaluated the opinion evidence in the record, even if he committed harmless error in failing to explicitly assign weight to some opinions, and that substantial evidence supports his determinations as to the listings and Withus's residual functional capacity.

1. The ALJ Properly Evaluated the Opinion Evidence

Withus argues that the ALJ gave the opinions of treating sources Paden, Bernabe, and Laux less weight than they deserved (Pl. Mem. at 23-24; Pl. Reply at 1-3); improperly relied on the opinions of Drs. Stack and Gindes without giving them specific weight (Pl. Reply at 2-3); failed to accurately assign and explain the weight given to the opinion of Withus's mother (id at 3-5); and accorded Dr. Marks's opinion more weight than it deserved. Id. at 5. For the reasons set forth below, the ALJ properly evaluated the opinion evidence.

a. Laura Bernabe, LMHC

Withus rejects the ALJ's conclusion that Bernabe's opinion is inconsistent with the administrative record, which demonstrates that Withus can “perform significant mental tasks in a nonacademic environment.” Pl. Reply at 2; AR at 24. In support of this argument, Withus cites several treatment notes establishing limitations in mental functioning related to paragraph B criteria. AR at 201-02, 204, 208, 211-12, 214-15.

Licensed mental health counselors such as Bernabe are not considered “acceptable medical sources” under the regulations and therefore their opinions are not entitled to controlling weight. See, e.g., Seignious v. Colvin, No. 6:15-CV-6065 (MAT), 2016 WL 96219, at *6 (W.D.N.Y. Jan. 8, 2016). However, an ALJ may not disregard opinion evidence from an “other source” solely because it was not authored by an acceptable medical source. See, e.g., Rivera v. Colvin, No. 13-CV-7150 (PGG), 2015 WL 1027163, at *15 (S.D.N.Y. Mar. 9, 2015) (ALJ erred by discounting nurse practitioner's opinion on basis of her status as “other source”) (citation omitted).

Inconsistency with other evidence in the record and a lack of support by substantial evidence qualify as a “legally valid reasons to not give controlling weight to a treating source's opinion under SSA regulations, 20 C.F.R. § 416.927(c)(2), and ‘good reasons' under case law and regulations for giving little weight to a treating source's opinion.” Colbert v. Comm'r of Soc. Sec., 313 F.Supp.3d 562, 573 (S.D.N.Y. 2018) (citations omitted). See, e.g, Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (ALJ may give less weight to treating source's opinion after considering, inter alia, “the amount of medical evidence supporting the opinion . . . [and] the consistency of the opinion with the remaining medical evidence”). See also 20 C.F.R. § 416.927(c)(3)-(4) (among factors used to evaluate weight of treating source opinion is extent to which opinion is supported by medical signs and laboratory findings and is consistent with record as a whole).

“In reviewing the ALJ's decision, this Court does not re-weigh the evidence.” Martinez v. Comm'r of Soc. Sec., No. 18-CV-1570 (KHP), 2019 WL 3852439, at *10 (S.D.N.Y. Aug. 16, 2019) (citing Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (“[T]he court may not substitute its own judgment for that of the [ALJ].”). Where substantial evidence in the administrative record supports “disparate findings, ” the Court must defer to the ALJ's factual determinations. Quinones on Behalf of Quinones v. Chater, 117 F.3d 29, 36 (2d Cir. 1997). See also, e.g., Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).

Here, Withus's testimony and many of the treatment notes describe periods during which Withus was capable of a higher degree of adjustment, mental functioning, and social interaction than indicated by Bernabe's opinion. For example, notes from 2012 and 2015 describe that Withus's mood, focus, and concentration were good, that she was not depressed, and that she was beginning or continuing to study for her GED. AR at 208, 212-13. In August 2013, she reported feeling “more social.” Id. at 206.¹³ Substantial evidence also supports the ALJ's conclusion that Withus responded positively to medications. Id. at 191, 222, 244- 45.¹⁴ Therefore, the record demonstrates that the ALJ relied on substantial evidence in his determination that Withus did not suffer from extreme limitations in functioning, as Bernabe opined, and that the medical and therapeutic treatment Withus received helped her to make positive adjustments in functioning.

13 While the Court recognizes that a few of the treatment notes are illegible, this fact does not affect the conclusion that the ALJ relied on substantial evidence in assigning little weight to the opinions of Bernabe and Paden. As explained above, evidence from the consultative examiners, Dr. Marks, the third party function report, and Withus's own testimony all support the conclusion that her limitations may be appropriately characterized as mild to moderate in most areas of functioning. Given that the Court was not obligated to apply the treating physician rule to Bernabe or Paden as “other sources, ” the fact that the ALJ did not seek clarification on the few illegible notes is not a violation of his duty to develop the record. See, e.g., Harrison v. Colvin, No. 13-CV-835 (FJS) (CFH), 2014 WL 4794406, at *15 (N.D.N.Y. Sept. 25, 2014) (no error in ALJ's decision not to accord significant weight to opinion of “other source” despite illegible notes) (adopting report and recommendation); Rockwood v. Astrue, 614 F.Supp.2d 252, 270 (N.D.N.Y. 2009) (same).

14 While Withus's statement that she felt “less like a zombie” after discontinuing medications suggests that the ALJ's conclusion that Withus was able to take medications with “no adverse side effects” is erroneous, Withus did not object to the ALJ's suggestion that she showed signs of positive improvement while taking medication. Id. at 23, 208.

b. Ann Paden, P.N.P.

Withus also argues that the ALJ should have given more weight to the opinion of Paden as a source who had treated Withus for more than five years. Pl. Mem. at 23. Withus contends that the opinions of Bernabe, Paden, and Laux are each consistent with one another and offer valuable “perspective on how [Withus] functions over time.” Pl. Reply at 2-3. The ALJ did not assign specific weight to Paden's opinion, but rather evaluated her opinion in conjunction with that of Bernabe in stating that their 2015 opinion questionnaires were submitted in a “check-off” format, lacked any reference to specific clinical evaluations, and were inconsistent with Withus's testimony that suggests she was somewhat capable of meeting competitive work standards. AR at 24, 222-27, 245-50.

Given that nurse practitioners were not listed as an acceptable medical source before March 27, 2017, Paden “could not give [a] medical opinion[], and ALJ [Katz] was not required to give P.N.P. Paden's opinion any weight.” Puckett v. Berryhill, No. 17-CV-5392 (GBD) (KHP), 2018 WL 6625095, at *14 (S.D.N.Y. July 13, 2018), adopted by Order dated November 20, 2018 (Dkt. No. 21).¹⁵ Additionally, the ALJ did not find Paden's opinion to be consistent with other evidence in the record, particularly Withus's testimony illustrating that she was not severely limited in activities of daily living, social functioning, and maintaining concentration, persistence, and pace. As described above, the ALJ relied on substantial evidence to conclude that Withus did not suffer marked limitations in the majority of these areas of functioning. Accordingly, the ALJ did not err in failing to give Paden's opinion significant weight.

15 Following a March 27, 2017 amendment to the regulations, licensed advanced practice registered nurses, including nurse practitioners, are considered acceptable medical sources “[i]n claims with a filing date on or after March 27, 2017.” SSA POMS-DI 22505.003. Given that Withus's claim was filed on October 28, 2014, however, the ALJ was not required to give P.N.P. Paden's opinion any weight.

c. Kristen Laux, F.N.P.

Withus contends that the ALJ improperly ignored family nurse practitioner Laux's “opinion that [Withus] has depression; attention deficit disorder; cognitive impairment; that depression is the primary cause of plaintiff's fatigue; and that her condition is chronic with fair prognosis.” Pl. Reply at 2 (citing AR 24, 220-21). She also argues that the ALJ failed to properly consider Laux's annual examinations of Withus that confirm the longevity of Withus's mental impairments. Id. (citing AR at 24, 257-62).¹⁶

16 Here, Withus also mentions, but does not explicitly contest, that the ALJ gave “little weight” to Laux's 2017 opinion concerning some of Withus's physical impairments. Pl. Reply at 2. As previously stated, Withus applied for SSI benefits solely on the basis of mental impairments. Id. at 151. Therefore, the ALJ was not required to address Laux's opinion regarding Withus's physical impairments.

As a nurse practitioner, Laux was also not an “acceptable medical source, ” and therefore the ALJ is not required to give her opinion any weight. With respect to the portions of Laux's opinions regarding Withus's mental impairments that the ALJ does not address--namely, her diagnoses and fatigue--the Court concludes that an explicit consideration of these impairments would not have changed the ALJ's determination in any meaningrul way. In his decision, the ALJ acknowledges Withus's severe impairments, including ADHD and a depressive disorder, among others. AR at 14. He further states that he has specifically “considered [her] complete medical history, ” and in so doing necessarily contemplated that Withus has had these impairments for several years. Id. at 12. As such, the ALJ did not err in his evaluation of Laux's opinion.

d. Lauren Stack, Ph.D., and Alex Gindes, Ph.D.

Withus argues that the ALJ erred in not giving specific weight to the opinions of consultative examiners Lauren Stack, Ph.D., and Alex Gindes, Ph.D., despite relying on their opinions in his RFC determination. Withus further contends that “the fact that these cursory, one time examiners did not have the benefit of reviewing more than two years of after-acquired evidence detracts significantly from the value of their opinions, as does the fact that they interviewed [Withus] for a brief time.” Pl. Reply at 3.

With regard to consultative examiners who are not treating physicians, the Social Security Regulations provide that an ALJ “generally should explain the weight given to opinions from these sources . . . when such opinions may have an effect on the outcome of the case.” 20 C.F.R. § 416.927(f)(2). However, when an ALJ fails to assign precise weight to the opinion of such a source, the error may be harmless when a specific delineation of weight would not change the outcome. See, e.g., Rodriguez v. Colvin, No. 12-CV-3931 (RJS) (RLE), 2014 WL 5038410, at *6 (S.D.N.Y. Sept. 29, 2014) (citing Hammond v. Barnhart, 124 Fed.Appx. 847, 851 (5th Cir. 2005)). Furthermore, an ALJ's decision need not be remanded when the record includes a robust discussion of the opinion of a medical source that allows the reader to infer the weight an ALJ has given that opinion. See, e.g., Randel v. Colvin, No. 514-CV-1449 (GLS) (CFH), 2016 WL 1223363, at *20 (N.D.N.Y. Mar. 4, 2016) (inferring little weight assigned when ALJ evaluated and provided reasoning to “discount[]” opinion), adopted by 2016 WL 1238240 (N.D.N.Y. Mar. 28, 2016); Bostwick v. Colvin, No. 14-CV-374S (WMS), 2015 WL 5036976, at *4 (W.D.N.Y. Aug. 25, 2015) (no error in failure to expressly assign “some weight” when “readily apparent from the context of the decision”).

In this case, although the ALJ failed to “explicitly assign a specific, quantifiable weight” to the opinions of the consultative examiners, this failure “should not be dispositive.” Rodriguez, 2014 WL 5038410, at *6. First, the ALJ plainly considered the opinions of Dr. Stack and Dr. Gindes and determined them to be consistent with one another. Id. at 15-18, 21, 24. Second, the opinions support his ultimate conclusion. Thus, a precise weighing of their opinions would not have changed the outcome of the case, and any error in failing to accord specific weight was harmless.

In addition, the ALJ relied on substantial evidence to give the opinions of Drs. Stack and Gindes what the Court infers to be substantial weight. “Substantial evidence” is a “very deferential standard of review.” Brault, 683 F.3d at 448. Here, Dr. Stack's opinion that Withus exhibited mild to moderate limitations in functioning is consistent with Withus's own testimony, treatment notes, Flanagan's report, and the opinions of Drs. Marks and Gindes. See Id. at 33-49, 51-60, 158-65, 231. Likewise, Dr. Gindes's conclusion that Withus's intellectual functioning was in the “borderline range, ” but that she is able to follow and understand simple instructions, is consistent with the same. See Id. at 33-49, 158-65, 236.

Accordingly, the ALJ committed harmless error in not specifically giving weight to the opinions of Drs. Stack and Gindes, but correctly considered their opinions for the purposes of his RFC determination.

e. Dr. M. Marks, State Agency Consultant

According to Withus, the ALJ should not have given significant weight to the opinion of Dr. Marks because (1) it was issued without the “perspective of two years of after-acquired medical evidence;” (2) Dr. Marks did not examine Withus directly; and (3) the opinion was contrary to the treating source opinions. Pl. Reply at 5.

ALJs are not precluded from giving significant weight to the opinion of a state agency consultant, even where the consultant has not directly examined a claimant. See, e.g., Distefano v. Berryhill, 363 F.Supp.3d 453, 469 (S.D.N.Y. 2019) (“the ALJ could properly assign great weight to the opinion of [the state agency consultant]”); Bryant v. Berryhill, No. 17-CV-518 (FPG), 2018 WL 1911276, at *4 (W.D.N.Y. Apr. 23, 2018) (quoting Barber v. Comm'r of Soc. Sec., No. 15-CV-338 (GTS) (WBC), 2016 WL 4411337, at *7 (N.D.N.Y. July 22, 2016) (“[i]t is well established that an ALJ may rely on the medical opinions provided by State agency consultants and that those opinion[s] may constitute substantial evidence”)), adopted by 2016 WL 4402033 (N.D.N.Y. Aug. 18, 2016); see also Kane v. Comm'r of Soc. Sec., No. 16-CV-723 (DJS), 2017 WL 2533410, at *6 (N.D.N.Y. June 9, 2017) (“Per the Regulations, State agency medical consultants are ‘highly qualified' individuals ‘who are also experts in Social Security disability evaluation.' 20 C.F.R. § 404.1527(e)(2)(i). Insofar as such opinions are supported by the medical evidence, they may override a treating source's opinion.”).¹⁷ “However, the ALJ should weigh a consultative examiner's opinion using the same factors used to weigh the opinion of a treating physician, particularly where there is not a treating source opinion.” Elder v. Comm'r of Soc. Sec., No. 15-CV-7370 (MKB), 2017 WL 1247923, at *11 (E.D.N.Y. Mar. 24, 2017) (citing Daniels v. Colvin, No. 14-CV-2354 (SN), 2015 WL 1000112, at *17 (S.D.N.Y. Mar. 5, 2015)).

17 Withus cites Lewis v. Colvin, 122 F.Supp.3d 1 (N.D.N.Y. 2015), for the proposition that “where great weight is given to a report by a State Agency consultant who never actually examined a claimant, whose opinion was rendered early in the disability review process, and who reached his conclusions on the basis of an incomplete record, this constitutes reversible error.” Pl. Reply at 5. The cited portion of the Lewis opinion centered on the court's finding that the ALJ erred in assigning the state agency consultant great weight where the consultant issued an opinion before the opinion of the claimant's long-term mental health care provider was made part of the record. Lewis, 122 F.Supp.3d at 7-8. The case is therefore inapposite, as Dr. Marks's opinion was offered with a nearly complete record, including the opinions of the consultative examiners and two opinions from Bernabe, Withus's long-term mental health care provider. Indeed, in Lewis the court stated: “[I]nsofar as [the claimant] appears to argue an ALJ lacks discretion to ever afford anything more than limited weight to the opinion of a state agency consultant, she is incorrect.” Id. at 7.

Withus correctly notes that Dr. Marks's opinion was given in 2015, before two opinions of Bernabe and Paden were made part of the record. AR at 249-56. As previously determined, however, these 2017 opinions were virtually the same assessments as Bernabe's 2015 opinion, which was part of the record at the time Dr. Marks's opinion was rendered. Furthermore, the ALJ properly analyzed the opinion in terms of its consistency with the record as a whole. See AR at 23. He found Marks's opinion to be consistent with the record, including the “after-acquired evidence” to which Withus refers, which does not establish a substantial change in Withus's functioning. In particular, the ALJ found the opinion to be supported by Withus's Full Scale IQ test scores demonstrating limitations in her mental functioning, her testimony establishing that she is capable of some activities of daily living, and the opinions of Dr. Stack and Dr. Gindes. Id. At 21-24.¹⁸ Therefore, the ALJ did not err in according significant weight to the opinion of Dr. Marks.

18 Withus cites to Vargas v. Sullivan, 898 F.2d 293 (2d Cir. 1990) and Minsky v. Apfel, 65 F.Supp.2d 124 (E.D.N.Y. 1999) for the proposition that “the findings of non-examining physicians are entitled to relatively little weight and, in the Second Circuit, cannot constitute substantial evidence to overcome a consensus among the treating sources that Plaintiff is disabled.” Pl. Reply at 5. These cases are distinguishable from the present case as they involved ALJs who ignored, misinterpreted, or substituted their own opinions for that of the treating physician. Vargas, 898 F.2d. at 296; Minsky, 65 F.Supp.2d at 136-39. In the present case, none of the treating sources are “acceptable” sources that would trigger the treating physician rule and the ALJ did not ignore or misinterpret the findings of the treating therapists. Rather, he found them to be inconsistent with substantial evidence in the record.

f. Patricia Flanagan

Withus further objects to the ALJ's “failure to accord full weight” to Flanagan's report. Pl. Reply at 3. In particular, Withus argues that Flanagan's opinion is consistent with the opinions of non-medical sources Bernabe and Paden and that Flanagan's opinion, as someone who has known Withus her whole life, can be useful in “evaluating the severity and functional effects” of Withus's mental impairments under Social Security Rule 06-03p. Id. at 3-5.¹⁹

19 Withus correctly notes that, in accordance with 82 Fed. Reg. 15263 (Mar. 27, 2017), Rule 06-3p has been rescinded. See Pl. Reply at 4. Although the ruling will no longer be in effect for applications made to the SSA on or after March 27, 2017, it applies to her case, which was filed before 2017. See, e.g., Sanchez v. Berryhill, No. 16-CV-7775 (PGG) (DF), 2018 WL 1472687, at *19 n.42 (S.D.N.Y. Feb. 28, 2018), adopted sub nom., Sanchez v. Comm'r of Soc. Sec., 2018 WL 1478040 (S.D.N.Y. Mar. 23, 2018).

Social Security Rule 06-03 provides that opinions from non-medical sources “are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file.” SSR 06- 03p; Titles II and XVI: Considering Opinions and Other Evidence From Sources Who Are Not “Acceptable Medical Sources” in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies, 71 Fed. Reg. 45593, 2006 WL 2263437 (Aug. 9, 2006). In deciding how much weight to give non-medical sources who have not seen the individual in a professional capacity, such as parents, the ALJ is instructed to consider “such factors as the nature and extent of the relationship, whether the evidence is consistent with other evidence, and any other factors that tend to support or refute the evidence.” Id.

Here, the ALJ assigned “some weight” to Flanagan's opinion, because although she has known the claimant for her entire life, the record does not suggest that she had any training in medicine. AR at 25. He cited to Flanagan's opinions extensively in his determinations on the listings, often agreeing with her assessments but occasionally finding them to be inconsistent with the other evidence on the record. Id. at 15-17. For example, the ALJ found support for his conclusion that Withus has a moderate limitation in mental functioning in Flanagan's statements that Withus needs reminders to manage personal care and travel, among others. Id. at 15. He also acknowledged Flanagan's statements that Withus has problems with attention, concentration, stress, and changes in routine, but determined the limitation to be moderate in light of the other evidence in the record. Id. Conversely, he found “no objective evidence” to support Flanagan's statement that Withus has problems with stress and changes in routine, relying upon the fact that Withus attends school, interacts with family and friends, and cleans her home. Id. at 16-17.

Therefore, the ALJ appropriately considered Flanagan's opinion and did not err in giving it “some” weight.

2. The ALJ's Step Three Decision is Supported by Substantial Evidence

The third step of the five-step test requires a determination of whether Withus had an impairment listed in Appendix 1 of the Regulations. 20 C.F.R., Pt. 404, Subpt. P, App. 1. “These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the ‘listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits.” Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995). “The applicant bears the burden of proof [at this stage] of the sequential inquiry[.]” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (alterations omitted). “For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original).

In determining whether the plaintiff meets or equals one of the listings at step three, an ALJ must set forth a “specific rationale” in support of the conclusion. McHugh v. Astrue, No. 11-CV-578 (MAT), 2013 WL 4015093, at *6-7 (W.D.N.Y. Aug. 6, 2013) (citing Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982)). This requires that the decision contain more than a brief, conclusory statement that the plaintiff fails to meet any of the Listings. Id. at *6. However, the failure to provide a “specific rationale” is not necessarily fatal if the “ALJ's disability determination can be ‘reasonably inferred' based on ‘substantial evidence' contained elsewhere in the opinion.” Id. at *7 (quoting Berry, 675 F.2d at 468-69).

Withus claims that the ALJ incorrectly found she did not satisfy listings 12.04, 12.05, and 12.06. Pl. Mem. at 21-25; Pl. Reply at 5-8. The Court concludes that the ALJ's determination at step three is supported by substantial evidence.

a. Listings 12.04 and 12.06

While the ALJ only considered listing 12.04, both 12.04 and 12.06 require the existence of either paragraph A and paragraph B criteria or paragraph A and paragraph C criteria. See 20 C.F.R., Pt. 404, Subpt. P, App'x 1, §§ 12.04, 12.06. The ALJ did not expressly address the paragraph A criteria, which require medical documentation of specified symptoms or conditions. See AR at 15-17. However, even assuming Withus meets the requirements of paragraph A, the ALJ concluded that she fails to meet the requirements for paragraph B or paragraph C. Id. Accordingly, the Court will focus its analysis on paragraph B and paragraph C, which are identical for listings 12.04 and 12.06. See 20 C.F.R., Pt. 404, Subpt. P, App'x 1, §§ 12.04, 12.06.

Paragraph B provides that a plaintiff must demonstrate extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; or (4) adapt or manage oneself. 20 C.F.R., Pt. 404, Subpt. P., App'x 1, § 12.06(b). Paragraph C requires that a plaintiff demonstrate that his or her mental disorder is “serious and persistent, ” meaning there is a medically documented history of the disorder for a period lasting longer than two years. 20 C.F.R., Pt. 404, Subpt. P., App'x 1, § 12.06(c). Additionally, the plaintiff must provide evidence of (1) medical treatment or mental health therapy that diminishes signs or symptoms of the mental disorder; and (2) marginal adjustment, meaning the plaintiff has the minimum capacity to adapt to changes in the environment or to demands not already included in the plaintiff's daily life. Id. ²⁰ Limitations in an area of functioning are considered “marked” when the ability to function independently, appropriately and effectively on a sustained basis is seriously limited, 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.00(F)(2)(d), and are considered “extreme” when there is no ability to function independently, appropriately, and effectively on a sustained basis. 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.00(F)(2)(e).

20 The criteria used to evaluate mental disorders under Listings §§ 12.04 and 12.06 were revised effective January 17, 2017, and are therefore applicable to Withus's claim, on which the ALJ issued a decision on October 18, 2017. See Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed Reg. 66138-01, 2016 WL 5341732, at *66138 (September 26, 2016). “That rule notes: ‘We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions.'” Andrews v. Comm'r of Soc. Sec., No. 16-CV-6867 (KMK) (JCM), 2017 WL 6398716, at *10 n.4 (S.D.N.Y. Oct. 24, 2017) (quoting at id. at *66139 n.1), adopted by 2017 WL 6398727 (S.D.N.Y. Dec. 13, 2017).

With respect to understanding, remembering, or applying information, the ALJ found that Withus had “moderate limitations” based on Flanagan's report that Withus needed reminders to manage her personal care, medications, and travel. AR at 15. Bernabe opined that Withus had a “hard time understanding directions. She needs constant help and redirection in that area.” Id. at 294. Consultative examiner Dr. Stack tested Withus's recent and remote memory skills and found them to be impaired given her ADHD and learning disability. Id. at 230. She found that Withus had a moderate impairment in her ability to maintain attention and concentration. Id. at 231. However, Dr. Stack also reported that Withus exhibited “no impairment in her ability to follow and understand simple directions in instructions or perform simple tasks independently.” Id. Consultative examiner Dr. Gindes reported that Withus was “functioning in the normal range when it comes to . . . processing simple new information.” Id. at 236. Additionally, as the ALJ noted, Withus made progress in passing part of the GED. Id. at 15, 242. The record therefore supports the ALJ's conclusion that Withus's ability to understand, remember, or apply information was only moderately limited.

With respect to interacting with others, the ALJ found that Withus had no limitation based on her mother's statements that Withus could shop in stores, spend time with family and friends, and get along well with authority figures. Id. at 161- 64. Flanagan indicated that Withus's conditions affect her ability to get along with peers, but stated that Withus does have two friends with whom she does activities. Id. at 162-63. Dr. Stack found that Withus was moderately impaired in her ability to “relate adequately” with peers, but observed that her “[d]emeanor was cooperative [and her] manner of relating was adequate.” Id. at 229, 231. Further, Dr. Gindes reported that Withus “described a great number of people whom she considered to be her good friends and she seems to get along well with her family.” Id. at 236. Although Withus admitted she sometimes faces problems in taking public transportation and interacting with crowds, the ALJ attributed many of these issues to Withus's “undertreated status” with respect to medications. Id. at 16. The record establishes that Withus socialized occasionally, was able to take public transportation on her own, and responded well to medications in the past. Even though Withus reported that she did not want to leave her room on some days (id. at 39), there is no evidence in the record to support Withus's allegedly marked or extreme limitations in this area.

The ALJ found that Withus had a “moderate limitation” with respect to her ability to concentrate, persist, or maintain pace. Id. at 16. The ALJ's finding was based on Flanagan's report and numerous other sources who stated that Withus had problems with attention and concentration. Id. at 160-61, 163, 217, 230, 236. Dr. Stack found that Withus's concentration was “mildly impaired due to anxiety and nervousness in the evaluation, and also ADHD.” Id. at 230. She further observed that Withus slouched during her evaluation, which the ALJ interpreted as to suggest that she may have difficulty persisting or maintaining pace. Id. at 16, 229. Dr. Gindes observed that Withus was moderately limited in her “ability to perform complex tasks independently.” Id. at 236. The ALJ again noted that Withus had shown responsiveness to stimulant medication in the past, but had stopped taking this medication, suggesting an impact on her ability to pay attention and concentrate. Id. at 16. Indeed, treatment notes indicate that her “focus was good” on several occasions from 2008 to 2015 when she was taking Strattera for her ADHD and that Adderall treatment was “wonderful.” Id. at 191, 198, 201, 206, 208. While her ability to concentrate, persist, or maintain pace could arguably be considered a marked limitation as opposed to a moderate limitation, it is well settled that where there are conflicts in the medical evidence, “it is the ALJ's decision that controls as factfinder.” King v. Astrue, 32 F.Supp.3d 210, 220 (N.D.N.Y. 2012) (citing Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)); see also Scully v. Berryhill, 282 F.Supp.3d 628, 636 (S.D.N.Y. 2017) (ALJ's decision upheld where medical evidence could support either finding that claimant did or did not medically equal listing).

Finally, with respect to Withus's ability to adapt or manage herself, the ALJ found that she had “no limitation” based on her hearing testimony that she attends school, plays video games, and cleans her house. Id. at 16, 36. The ALJ's conclusion is supported by observations from the consultative examiners that Withus appeared appropriately dressed, with adequate hygiene. Id. at 36, 229, 235. While the ALJ conceded that Withus may experience challenges in her ability to focus, as demonstrated by the fact that she will sometimes walk away while cooking a meal, he concluded that stimulant medication would help address this issue, as medications have helped her in the past. Id. at 17. The Court previously concluded that Withus showed improved mental functioning with the use of therapy and medication. However, the ALJ's determination in this area fails to accurately consider opinion evidence in the record, even those to which he has assigned greatest weight. Dr. Marks, Dr. Stack, and Dr. Gindes all concluded that Withus is moderately disabled in her ability to appropriately deal with stress. Id. at 59, 231, 236. While Withus is mildly to moderately limited in this area, evidence of Withus's ability to study and work toward her GED, shop on her own, and manage chores around the house supports the determination that her ability to adapt or manage herself is not limited in a marked or extreme way.

With respect to the requirements of paragraph C, Withus has been receiving treatment for her depression and ADHD since at least 2008. However, the record fails to establish evidence of only marginal adjustment. “Marginal adjustment” is defined as “minimal capacity to change in [one's] environment or to demands that are not already part of [one's] daily life.” 20 C.F.R. pt. 404, Subpt. P, App'x 1, § 12.02(C)(2). This generally requires a showing that “adaptation to the requirements of daily life is fragile, ” such that any changes in a plaintiff's environment has led to a “deterioration in . . . functioning, ” an inability to function outside the home or “a significant change in medication or other treatment.” 20 C.F.R. pt. 404, Subpt. P, App'x 1, § 12.00(G)(2)(c). The record does not contain evidence of only marginal adjustment. On the contrary, Bernabe's treatment notes indicated that Withus had shown signs of improvement in her depression, positive developments in mood, and an increased ability to focus and concentrate on several occasions from 2008 to 2014, particularly when she was taking medication. See Id. at 191, 197-99, 201-02, 204-07, 210-12, 214, 239-40, 244. Although Withus experienced disrupted sleep patterns, sadness, and negative thoughts in mid-2015, by late 2015 she was “not crying all the time” and by 2016 she reported that her mood was “generally good.” Id. at 241-42, 244. Thus, the ALJ's determination that Withus did not meet or medically equal listing 12.04 (and impliedly listing 12.06) is supported by substantial evidence.

b. Listing 12.05

Withus also alleges that the ALJ erred in concluding that Withus did not have an impairment or combination of impairments that met or equaled the criteria of listing 12.05, which requires that a claimant meet 12.05(A) or 12.05(B). Withus did not object to the ALJ's finding that she did not meet the criteria for 12.05(A) because, inter alia, she was not dependent upon assistance from others to toilet, feed, dress, or bathe herself, and the Court is not aware of any evidence in the record demonstrating that Withus was deficient in this manner. Id. at 17-19; Pl. Mem. at 23; Pl. Reply at 6-8. In order to meet the requirements of listing 12.05(B), a claimant must demonstrate each of the following: (1) significantly subaverage general intellectual functioning as evidenced by IQ scores within a certain range; (2) significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two of the same areas listed in paragraph B of 12.04 and 12.06; and (3) evidence that the disorder began prior to the age of 22. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05(B). As previously discussed, substantial evidence supports the ALJ's determination that Withus does not have two marked or one extreme limitation in the areas of mental functioning listed in paragraph B of listings 12.04 and 12.06. Without meeting these criteria, Withus is unable to prove that she satisfies the requirements of listing 12.05. Therefore, the ALJ's step three determination should be upheld.

3. The ALJ's RFC Determination is Supported by Substantial Evidence

Withus also challenges the ALJ's RFC determination, arguing that the ALJ erroneously relied on the opinions of consulting examining and non-examining sources; that he was the “only one who opined that Plaintiff was capable of any work whatsoever;” and that he failed to consider the structured setting in which Withus's impairments became stable. Pl. Mem. at 19-21; Pl. Reply at 1-5, 8-9. The Court has already determined that the ALJ properly evaluated the opinion evidence in the record, and so will address only the latter two arguments.

a. The Record Demonstrates Withus is Capable of Some Work

Withus contends that the ALJ was “the only one who opined that Plaintiff was capable of any work whatsoever.” Pl. Mem. at 21. To that end, Withus cites Flanagan's report stating that Withus rarely finishes tasks to completion, needs to be reminded to do chores, and has problems with instructions and concentration, and Dr. Stack's evaluation that Withus's cognitive problems “may significantly interfere with Plaintiff's ability to function on a daily basis.” Id. at 19-20 (citing AR at 231). Moreover, she argues that Dr. Gindes opined that Withus could “cognitively perform only basic, unskilled work tasks” without considering her ability to cope with the pressures of the workplace. Id. (citing AR at 234-38).²¹

21 Withus also argues that the ALJ pressured Withus into testifying that cleaning houses or restocking shelves at night may be a good job for her. AR at 20. However, the transcript does not contain enough evidence to suggest that the ALJ “pressured” Withus into answering these questions in a certain way. Id. at 38-39. Rather, on a plain reading, the transcript demonstrates that the ALJ engaged in a dialogue in which he asked Withus if she thought she would be capable of performing certain jobs, and then proposed suggestions according to her answers concerning her depression and anxiety. Id.

As the Commissioner correctly argues, however, an impairment that severely limits an individual's ability to perform basic work activities does not necessarily render her disabled. Def. Mem. at 20. Indeed, an ALJ's conclusion that an impairment is severe “is not necessarily internally inconsistent” with the determination that such an impairment is not disabling. McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (“[T]he standard for a finding of severity under Step Two of the sequential analysis is de minimis and is intended only to screen out the very weakest cases.”) (citing Dixon, 54 F.3d at 1030). See also Laguerre v. Comm'r of Soc. Sec., No. 13-CV-6747 (JCF), 2014 WL 7373435, at *10 (S.D.N.Y. Dec. 29, 2014) (substantial evidence supported RFC to perform full range of light work, where “ALJ examined the records of her treating and consultative examiners and assessed only moderate [nonexertional] limitations, at most”). The evidence Withus cites in her argument about the ALJ's RFC decision is consistent with the finding that Withus has severe impairments but is not precluded from “making a successful adjustment” to work in the national economy. AR at 26. This is particularly true in light of the Court's conclusion that the ALJ relied on substantial evidence to determine that Withus was only moderately limited in her ability to concentrate, persist, or maintain pace.

b. The ALJ Did Not Fail to Account for Withus's Lifestyle or Environment

Withus argues that the ALJ erroneously concluded that she has demonstrated no problems with handling stress and changes in routine. Moreover, Withus claims that assuming arguendo she has displayed such abilities in her current environment, this fact does not mean that she would be capable of doing so in a workplace environment. Pl. Reply at 9 (citing AR at 16). By failing to account for Withus's symptoms in the context of the “highly restricted and/or inflexible lifestyle within which she functioned well, ” Withus contends that the ALJ inaccurately determined that she was capable of performing substantial gainful activity. Id. The Court concludes that the ALJ did not fail to account for Withus's current environment in his decision, and that Withus's lifestyle is not highly restricted and/or inflexible so as to suggest she is incapable of adapting to a work setting.

As stated above, the ALJ's determination at step three that Withus had “no limitation” in adapting or managing herself fails to adequately account for evidence suggesting a mild to moderate limitation in this area. However, while the ALJ may have overstated Withus's ability to handle stress and changes in routine, he did not fail to evaluate the evidence in light of her lifestyle and circumstances. Listing 12.00(D)(1) describes the factors the ALJ must consider in any determination of mental functioning, including “the kind and extent of supports you receive, the characteristics of any structured setting in which you spend your time, and the effects of any treatment.” 20 C.F.R. § 404.1525 app. 1, Listing 12.00(D) (2015). The ALJ plainly considered the support Withus receives from her mother, as he extensively cited Withus's testimony and Flanagan's report differentiating the activities Withus can handle independently from those for which she needs assistance or reminders. AR at 15-16, 19-20, 25. He also cited therapy notes and evidence on the effects of psychotropic medications, referring to both her general improvement on medications and her sporadic “noncompliance” in taking them. Id. at 15-17, 20-24. Each of these factors demonstrates that the ALJ properly considered Withus's lifestyle and circumstances in making his determination.

Finally, the evidence in the record does not suggest that the scope of Withus's functioning was limited by a highly restrictive setting such that she could not cope with adapting to a work environment. To be sure, Withus has received some psychosocial support to accommodate her functional limitations: she was enrolled in special education classes in high school, lived with her mother, on whom she relied for help with financial matters and transportation, and received therapy regularly. Id. at 35, 152, 158-65, 222, 228. However, she also earned a special education diploma, independently took classes to earn her GED and passed the verbal portion of the test, took care of chores around the house, and can take public transportation. Id. at 19-20, 33-37, 241. She also responded in a generally positive way to the suggestion that cleaning houses “could be a good job for [her], maybe.” Id. at 38. Notably, Withus does not allege that the ALJ failed to develop the record, and the Court has no reason to believe that he failed to obtain any critical evidence or otherwise ignore any relevant evidence in the record.²² Therefore, the ALJ properly accounted for Withus's environment in determining her mental functioning.

22 Withus cites Corporan v. Comm'r of Soc. Sec., No. 12-CV-6704 (JPO), 2015 WL 321832 (S.D.N.Y. Jan. 23, 2015) in support of the proposition that “[i]n cases that involve mental impairments, the regulations require a robust examination that is sensitive to the dynamism of mental illnesses and coping mechanisms that claimants develop them.” Pl. Reply at 9 (citing Corporan, 2015 WL 321832 at *22). In that case, the court found that this proposition gives rise to an “enhanced duty” to develop the record when two factors are present: the plaintiff claims a mental (rather than physical) impairment, and appeared pro se at the ALJ hearing. Corporan, 2015 WL 321832 at *2. Specifically, the ALJ in Corporan failed to order production of critical records and did not consider probative information in reaching his determination. Here, however, Withus did not appear pro se, and in any event is not claiming that the ALJ failed to develop the record or overlooked crucial evidence in reaching his conclusion.

III. CONCLUSION

For the foregoing reasons, I recommend that Withus's motion for judgment on the pleadings be denied and that the Commissioner's cross-motion be granted.

PROCEDURE FOR FILING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Vernon S. Broderick, United States Courthouse, 40 Foley Square, New York, NY 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Broderick.

FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).