Opinions and documents
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
NOLBERTO R.,
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Plaintiff, : 24-CV-9800 (OTW)
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-against- : OPINION & ORDER
:
COMMISSIONER OF SOCIAL SECURITY, :
:
Defendant. :
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ONA T. WANG, United States Magistrate Judge:
Plaintiff Nolberto R.1 (“Plaintiff”) filed the instant action seeking judicial review of the
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Commissioner of Social Security’s (“Defendant”) denial of Plaintiff’s application for
Supplemental Security Income and Disability Insurance Benefits. The parties consented to
magistrate judge jurisdiction on April 24, 2025. (ECF 12). Plaintiff contends that the
Administrative Law Judge (“ALJ”) erred because the ALJ’s decision was not supported by
substantial evidence. For the following reasons, I agree. Accordingly, Plaintiff’s motion for
judgement on the pleadings is GRANTED and this case is REMANDED for further proceedings
consistent with this Opinion and Order.
1 Plaintiff’s name has been partially redacted in compliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of
the United States.
I. BACKGROUND
A. Administrative Proceedings2
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Plaintiff applied for benefits on December 10, 2021, alleging the following impairments:
vision disorder, diabetes mellitus, cognitive disorder, schizoaffective disorder, depressive
disorder, anxiety disorder, and posttraumatic stress disorder, with an Alleged Onset Date of
November 17, 2021. (ECF 17 at 4). On December 16, 2022, ALJ Lucian A. Vecchio held a
telephonic hearing. (Id.)
B. The ALJ’s Decision
On December 21, 2023, the ALJ issued a 16-page decision denying the application for
benefits. (ECF 10 at 21-34). Following the five-step framework set out by the Social Security
Administration, the ALJ found at Step One that the Plaintiff had not engaged in substantial
gainful activity since December 10, 2021. At Step Two, the ALJ found the following “severe”
impairments: vision disorder; diabetes mellitus, cognitive disorder, schizoaffective disorder;
depressive disorder, anxiety disorder; and posttraumatic stress disorder. (Id. at 21). At Step
Three, the ALJ considered whether Plaintiff’s impairments met the following Listings: 2.04 (loss
of visual efficiency) 9.00B.5 (diabetes mellitus); 12.02 (neurocognitive disorders); 12.03
(schizophrenia spectrum and other psychotic disorders); 12.04 (depression, bipolar and other
related disorders) 12.05 (Intellectual disorder), 12.06 (Anxiety and obsessive-compulsive
disorders), and 12.15 (trauma- and stressor-related disorders), and concluded that they did not.
Specifically, the ALJ found no “extreme” limitations and only one “marked” limitation in the
paragraph B functional criteria (in understanding, remembering or applying information), and
2 The administrative record was filed at ECF 10.
“moderate” limitations in “interacting with others,” “concentrating, persisting or maintaining
pace,” and “adapting or managing oneself.” (Id. at 22-23). Similarly, the ALJ found that the
“evidence fails to establish the presence of the “paragraph C” criteria.” (Id. at 23.)
At the last step of the analysis, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform “a full range of work at all exertional levels, but with non-exertional
limitations.” Id. at 24. The ALJ then listed numerous limitations that required only “occasionally
interacting” with others, other limitations that reduced stress and decision-making on the job,
and other accommodations for Plaintiff’s poor vision and occasional dizziness. Id. at 24. The ALJ
also stated that Plaintiff could work at a job that allowed him to be off-task up to 10% of the
workday, and that would allow him to be absent one day per month, or 12 days per year. Id.
C. Procedural History
On December 10, 2021, Plaintiff filed an application for SSI with an Alleged Onset Date
of November 17, 2021. (ECF 17 at 4). Following a denial of his application, ALJ Vecchio held a
hearing on December 16, 2022. (Id. at 10) After the ALJ found, on December 21, 2023, that
Plaintiff did not qualify for SSI benefits, the Appeals Counsel denied Plaintiff’s request for
review on October 24, 2024. (Id. at 1-8). On February 7, 2025, Plaintiff filed the instant action
seeking the Court’s review of the ALJ decision. (ECF 1). The administrative record was filed on
April 2, 2025. (ECF 10). The parties consented to magistrate judge jurisdiction for all purposes
on April 24, 2025. (ECF 12). Plaintiff’s motion for judgment on the pleadings was fully briefed on
September 4, 2025.
II. APPLICABLE LAW
A. Standard of Review
A motion for judgment on the pleadings should be granted if the pleadings make clear that
the moving party is entitled to judgment as a matter of law. Additionally, the Court’s review of
the Defendant’s decision is limited to an inquiry into whether there is substantial evidence to
support the Defendant’s findings and whether the correct legal standards were applied.
Substantial evidence is more than a mere scintilla. It only requires the existence of “relevant
evidence as a reasonable mind might accept as adequate to support a conclusion,” even if there
exists contrary evidence. Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990) (same). This is a “very deferential standard of review.” Brault v. Comm’r of Soc. Sec., 683
F.3d 443, 448 (2d Cir. 2012). The Court may not determine de novo whether Plaintiff is disabled
but must rely on the underlying record. “When there are gaps in the administrative record or
the ALJ has applied an improper legal standard,” an explanation of the ALJ's reasoning is
warranted, or when the ALJ's rationale is unclear, the Court should remand “for further
development of the evidence.” Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. The ALJ Must Apply a Five-Step Evaluation of Plaintiff’s Disability Claim
To be awarded disability benefits, the SSA requires that a claimant have 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).
The ALJ makes this determination through a five-step evaluation process. First, the Plaintiff
must provide evidence which supports the ALJ’s determination that:
(1) the Plaintiff is not currently engaged in substantial gainful activity;
(2) that Plaintiff’s impairment is so severe that it limits their ability to perform
basic work activities;
(3) that Plaintiff’s impairment falls under one of the impairment listings in 20 C.F.R.
Pt. 404, Subpt. P, Appendix 1 such that the Plaintiff may be presumed to be
disabled. Absent that, the ALJ must determine the Plaintiff’s Residual Functional
Capacity (“RFC”), or their ability to perform physical and mental work activities on
a sustained basis; and
(4) the RFC, if applicable, does not allow Plaintiff to meet the physical and mental
demands of his prior employment.
If the ALJ finds Plaintiff’s evidence has satisfied all four of these steps, the burden then shifts
to the Commissioner to prove that, based on Plaintiff’s RFC, age, education, and past work
experience, Plaintiff can perform some other work that exists in the national economy. See 20
C.F.R § 416.920(a)(4)(i)–(v). A finding that a claimant is either disabled or not disabled may be
made at any time during the five-step disability determination process; once such a finding is
made, no further review of the claim is necessary. See 20 C.F.R. § 404.1520(a).
III. DISCUSSION
Plaintiff argues that the ALJ erred at Step Three by finding that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals the severity of one
of the Listings. (ECF 17 at 13-21). Specifically, Plaintiff argues that the ALJ’s conclusion of finding
only one “marked” limitation in the Paragraph B criteria3 is not supported by substantial
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3 For mental impairments, the “Paragraph B criteria” use a five-point scale consisting of: no limitation, mild
limitation, moderate limitation, marked limitation, and extreme limitation to evaluate four areas of mental
functioning: understand, remember, or apply information; interact with others; concentrate, persist, or maintain
pace; and adapt or manage oneself. See 20 CFR Part 404, Subpart P, Appendix 1 at 1200(A(2)(b).
evidence. (Id. at 17-19). Plaintiff also argues that the ALJ adopted his own hypothetical to the
vocational expert (“VE”) that Plaintiff would not be off-task more than 10% of the workday or
be absent more than once a month, without reference to any medical opinion to support this
conclusion. (Id. at 21).
A. The ALJ’s Finding of Only “Moderate” Limitations in Adapting and Managing Oneself is
Not Supported by Substantial Evidence
The ALJ determined at Step Three that Plaintiff’s limitation in “adapting and managing
oneself” was only “moderate” and not “marked.” The ALJ’s finding, in its entirety, was based
only on the July 26, 2022 function report, without reference to any other aspects of the record:
On his July 26, 2022 function report, claimant asserted that he lives in an
apartment with his father (Exhibit D4E4 at 1), and that he stays home and only
goes out to his doctors’ appointments.3F (Id. at 2). He alleges that he is able to
care for his personal hygiene and grooming (Id.) He reported that he pays bills,
counts change, handles savings accounts, shops by computer. (Id. at 3). He
indicated that he does not handle stress well. (Id. at 7).
(ECF 10 at 23) (emphasis added).
The ALJ failed to mention numerous instances in the function report where Plaintiff
indicated that he could not accomplish activities independently, and that alone is sufficient for
remand. See Lambert v. Comm'r of Soc. Sec. Admin., No. 20-CV-2467 (MKB), 2021 WL
11715453, at *15 (E.D.N.Y. Sept. 30, 2021) (“where the ALJ has overlooked or mischaracterized
evidence of a person's alleged disability, the ALJ's decision is not based on substantial
evidence”); see also Kelly F. v. Saul, 496 F. Supp. 3d 733, 740 (N.D.N.Y. 2020) (ALJ “fail[ed] to
distinguish between activities Plaintiff is able to accomplish on her own and activities with
4 Exhibit D4E begins at ECF 10-1 at 58.
which she requires assistance. In reaching her conclusion without giving due consideration to
this distinction, ALJ Koennecke contradicted SSA guidance”).
For example, while the ALJ noted that Plaintiff only left the home to go to doctors’
appointments, Plaintiff also indicated that he went outside “only for the monthy [sic] doctor
visit” because “I’m scare [sic] to go out alone.” (ECF 10-1 at 60.) He explained that he could not
go out alone, ever, because “I’m scare of going outside.” (Id.) He also noted repeatedly that he
“can’t concentrate,” (Id. at 60, 61, 63), and that he has trouble sleeping, and only does so “for
short periods” in the daytime. (Id. at 59.) Plaintiff also indicated in the function report that he
cannot follow written or spoken instructions. (Id. at 63.) Moreover, while Plaintiff checked “yes”
to his ability to pay bills, count change, handle a savings account, and “use a checkbook/money
orders,” (Id. at 60), nowhere in the function report does Plaintiff suggest he “shops by
computer,” or that he in fact “pays bills, counts change, handles savings accounts, [or] shops by
computer.” (ECF 10 at 23). Indeed, at the hearing, Plaintiff testified that he had no internet, did
not own a computer, and had only “ever” used a computer “years ago.” (Id. at 86-87).
B. The ALJ Failed to Evaluate Plaintiff’s Monthly Absences and Time Off-Task
At the hearing, the ALJ asked the VE to assume that Plaintiff “would require reminders from
supervisors about once or twice an hour, not more,” and that he “would need a job where he
can be off task up to and including 10 percent of the workday,” “attribut[ing] that to his
preoccupation with depression and mental limitations.” (ECF 10 at 99). The VE expressed some
“hesitancy” with reminders once or twice an hour, and also testified that if Plaintiff were off
task just 12% of the workday, or absent more than one day a month, that either of these
limitations would be “work preclusive.” (Id. at 88).
The ALJ improperly substituted his lay opinion in the decision, even though at the hearing
he admitted that his hypothetical of being off task 10% (and not 12%) of the workday was “an
assumption,” that it was “speculative,” and “my [the ALJ’s] limitation is probably unartful.” (Id.
at 96-97). The ALJ’s decision cites to no evidence, not even a scintilla, to support that Plaintiff
would only be off task 10% of the day and not more, nor that Plaintiff would be absent from
work no more than one day a month. (Compare ECF 10 at 24 with ECF 10 at 90-97). See also
Hilsdorf v. Comm'r of Soc. Sec., 724 F. Supp.2d 330, 347 (E.D.N.Y. 2010) (“[A]n ALJ who makes
an RFC determination in the absence of [a] supporting expert medical opinion has improperly
substitute[d] his own opinion for that of a physician, and has committed legal error.”)
Defendant asserts that the ALJ’s conclusion about absences and time off task was supported
by substantial evidence but points to none in the record, string citing cases only for the
proposition that estimates of time off-task must be supported by substantial evidence, which is
not a legal principle in dispute here. (See ECF 19 at 19-21). Moreover, although Defendant
claims that Dr. Walsh’s opinion was only “somewhat persuasive,”5 the ALJ opinion itself does
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not explain why or how he came to that conclusion, beyond a perfunctory statement that some
of Dr. Walsh’s opinion is “somewhat persuasive, as it is partially consistent with the record
(Exhibits ). [sic]” (ECF 10 at 29). In the very next sentence, the ALJ finds that Dr. Walsh’s report
is “not persuasive” with respect to pace and attendance at work, “as it is not consistent with
the records,” with no citation to the record at all. (Id.) The following sentence, which does cite
to the record, only notes that Plaintiff was “generally assessed as attentive with short-term and
5 Defendant also misquotes the ALJ decision here, calling the ALJ’s finding of Dr. Walsh’s opinion “partially
persuasive.” (Compare ECF 19 at 21 with ECF 10 at 29.)
long-term memory intact,” and that “his symptoms were noted as stable with treatment.” (Id.)
It makes no gesture to whether Plaintiff is able to concentrate or how long he could
concentrate or consistently go to work.
Accordingly, I find that the ALJ cherry-picked from the record and failed to explain why Dr.
Walsh’s opinion, as just a single example, was unpersuasive. Even the records cited by the ALJ
are drawn from telephone visits with Dr. Nunez, Plaintiff’s treating physician, during the COVID-
19 pandemic that predate Dr. Walsh’s evaluation by 1-2 years; that note, throughout, Plaintiff’s
“extreme” functional limitations, (ECF 10-2 at 2); that report that Plaintiff was taking no fewer
than six medications for his schizophrenia alone; and that Plaintiff had also exhibited (for
example), “a paranoid manner and other signs of paranoid process” even as Dr. Nunez had
noted that “short- and long-term memory are intact.” (See, e.g. Ex. D4F, ECF 10-2 at 6).
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on the pleadings is GRANTED and
this case is REMANDED for further proceedings consistent with this Opinion and Order. The
Clerk is respectfully directed to enter final judgment consistent with this decision and then
close the file.
SO ORDERED.
/s/ Ona T. Wang
Dated: March 26, 2026 Ona T. Wang
New York, New York United States Magistrate Judge
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