Middleton-Malshuk v. Commissioner of Social Security, No. 5:2021cv00014 - Document 15 (D. Vt. 2022)

Court Description: OPINION AND ORDER granting in part 12 MOTION for Order Reversing the Decision of the Commissioner; denying 13 MOTION for Order Affirming the Decision of the Commissioner. This case is remanded for further proceedings. Signed by Chief Judge Geoffrey W. Crawford on 4/26/2022. (pjl)

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Middleton-Malshuk v. Commissioner of Social Security Doc. 15 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 1 of 40 U.S, ni$ I or$ialc? LTNITED STATES DISTRICT COURT FOR TI{E DISTRICT OF VERMONT ?O?? APR i\:-- ALE)(IS M.-M., iltlT ,-nf !r\? # wix"ijiir ?6 FH 3: 53 ,1f t,Lc.-nr-r rin BY.=&l . UTI"UI Y CLEITK Plaintifl v. Case No. 5:21,-cv-1,4 KILOLO KIJAKAZI, Acting Commissioner of Social Security, Commissioner. OPIMON A}[D ORDER @ocs. l2r13) PlaintiffAlexis M.-M. brings this action under 42U.5.C. $$ a05(g) and 1383(c)(3), requesting reversal of the decision of the Commissioner of Social Security ("Commissioner') denying her application for Title II Child's Insurance Benefits and Title XVI Supplemental Secwity Income or, in the alternative, a remand to the Commissioner for firrther proceedings. @oc. 1.) Pending before the court are Plaintiffs Motion for Order Reversing Commissioner's Decision (Doc. 1,2) mdthe Commissioner's Motion for Order Affirrning the Decision of the Commissioner @oc. 13). For the reasons stated below, PlaintifPs motion is GRANTED in part; the Commissioner's motion is DENIED. Factual Backsround Plaintiffwas 18 years o1d on her alleged onset date of April7 ,2076. (AR 55.) At a May 27,2020 telephonic hearing, Plaintifftestified that in addition to chronic kidney disease associated with her kidney transplant, she is physically affected by fatigue, asthma, severe atopic dermatitis, pain, a back fracture, and a compromised immune system. (AR 97.) Dockets.Justia.com Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 2 of 40 Plaintiffwas born with a congenital nephrotic syndrome and diffirse mesangial sclerosis. (AR 1124.) She developed renal failure at six weeks old and received a kidney donated by her mother on June 14,1999. (AR 17.) Since her kidney transplant, she has been treated wittr immunosuppressive medications to prevent rejection of the kidney. (AR 2s10.) The medical record reflects long-standing diagnoses for chronic kidney disease, which has progressed from stage MI (mild) to stage IIIIV (moderate/severe).1 (AR 15, 17,30,1235.) Prior to her onset date, Plaintiffs chronic state of immunodeficiency and her poor renal firnction caused several bouts of serious illness, including adenoviral pneumonia, Epstein-Balr virus, cerebritis, meningitis, chronic UTIs, hypertension, respiratory infections, seizures with hyponatremia, asthma, atopic dermatitis, eczemqgout, MRSA, and HlNl influenza. (AR 1124.) After a largely successful kidney transplant surgery tntggg,Plaintiffwas fed periodically through a feeding tube until age five, and was occasionally re-hospitalized for renal abscesses and illness throughout adolescence. (AR 543,1125.) Plaintiffs medical record reflects frequent hospitalizations until age 15 for infections, seizures, and transplant complications. (AR 1125.) In November 2016, Plaintiff suffered a hernia and underwent surgery to repair the abdominal wall. (AR 1138-11,39,1284.) As a result of her renal disease, Plaintiff is unusually short in stature. (AR 1 9, She is approximately 4 feet arrdT inches 27 , lO3 .) tall, and weighs between 90 and 111 pounds. (AR 103.) Since her onset date, Plaintiffhas been between the second and fifth percentile for weight compared to other women in her age group. (AR 847.) Her stature places her at less than the first percentile. (AR 849.) ' St g" IV chronic kidney disease is "the start of end stage kidney disease" and is expected to cause the following symptoms: fatigue, fluid retention, lower back pain, sleep problems, discolored urine, increased urination, and bone disease. (AR 529.) Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 3 of 40 Plaintifftestified that her back fracture limits her spinal mobility and causes ongoing backpain. (AR 104.) She estimates that she could lift "[m]aybe five pounds" if she does not have to bend her back. (AR 104.) Plaintiffalso testified that she is able to stand comfortably for 20 or 30 minutes before her legs, feet, and back hurt. wrote, oodue (AR 105.) In her Function Report, Plaintiff to my eczema I am up [at night] itching; Hard to find a good position [to sleep] due to back pain." (AR 432.) Plaintiffis prescribed prednisone, a steroidal medication, as an immunosuppressant to prevent rejection of her transplanted kidney and to treat eczsmaand dennatitis. (AR 446,761.) Due to long-term prednisone use, Plaintiffdeveloped osteopeniarn2}l7,progressing to osteoporosis in 2018. (AR 1098, nA3) Plaintiffreports bone and joint pain due to osteoporosis. (AR 104.) At a physical therapy appointnent on March 6, 2020, Plaintiff said her back and neck pain is "511,0 at best" and "8/10 at worst," and is o'aggravated by lifting anything, walking, dressing and grooming." (AR 3037.) Plaintiffs physical therapist described her condition as 'ochronic" and "will include relapses which are unpredictable in nature." (AR 3038.) The physical therapist's findings reflect limited cervical and shoulder flexion, extension, and pulling, with accompanying pan. (Id.) On the Owestry Disability Index, plaintiffreceived a score of 36, which corresponds with a finding of "moderate disability.. (AR 30g9.)2 Plaintifftestified that her conditions cause fatigue. She testified that every day she either sleeps in or naps during the day. (AR 99-100.) She estimates that she sleeps 10 hours each day, and feels tired, groggy, inattentive, and drained before and after napping. (AR 100.) Plaintiff testified that her fatigue worsens when she is sick. (AR 102.) For instance, Plaintiffcaught 2'oTlne Owesty Disability Index is the most commonly used outcome measure for low back pain." Owestry Disability Index Scoring Made E*y, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC26472441(last visited Feb. 28, 2022). Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 4 of 40 pneumonia in November 2019 and was out of school and in bed for two weeks with fatigue. (Id.) Plaintiffalso experiences fatigue during menstruation, writing, "my periods are very hard on my body giving me low grade fevers and I just want to sleep. I usually gef tt2 [times] a month." (AR 438.) Sometimes her periods can last 3-4 weeks atatime. (AR 454.) Due to fatigue and illness, Plaintiffmisses o'school or other events that I would like to attend." (AR 438.) Plaintiffis prescribed several medications.3 Many of these medications have serious known side effects. These side effects include oosuppressed immune system"; ooosteoporosis and tight muscles"; oodrowsinesso'; "eye irritation"; "conjunctivitis"; "stomach irritation" and "irregular periods." (AR 438, 458.) Plaintifftestified at the hearing about her daily activities and personal life. PlaintifPs daily activities include chores, meditation, homework, TV, writing, painting, errands, going outside, and spending time with family. (AR 198,432.) She prepares frrll meals, does laundry, vacuuming, and cleans dishes. (AR 198, 432434.) Plaintiffreports that during these activities at home she has trouble "bending to get things." (AR 433.) She can lift 5 to 10 pounds but can't bend due to injury, and says she is often i11. (AR l9S.) Plaintiffreports that she tires easily when standing and can walk less than a mile. (AR 436.) Plaintifftestified that she occasionally goes grocery shopping, but sometimes'\rould have problems lifting things." (AR 106.) Plaintiffalso reports finding it "hard to put pants and socks od' and sometimes has trouble bathing "when need to get soap it causes pain to bend." I (AR 432.) Plaintiffqualified for a Section 504 plan in high school and college on the basis of her physical impairments. (AR 96,98.) Despite her Section 504 accommodations, Plaintifftestified 3 As of June 16,zoz},Plaintiffhad 34 activeprescriptions. (AR 2S-29.) Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 5 of 40 that she frequently missed days in high school due to surgeries, illness, and medical appointrnents. (AR 96-97 .) At the time of the hearing, Plaintiffwas a sophomore Johnson, Vermont where she majors in art. at Northern Vermont University in (AR 105, 108.) Plaintifftestified that her disability accommodations in college allow her to schedule her daily routines 'ohow I need it to fit my lifestyle." (AR 98.) Plaintiffis allowed extended classroom time and testing times. (AR 98, 102.) She testified that she also has flexibility to request extensions on assignments if necessary. (AR 98.) Her college accommodation allows Plaintiffto miss classes for appointments or for illness if she communicates absences in advance. (AR 98.) Plaintifftestified that although some of her college classes require her to be physically active, accommodations allow her to participate despite her physical limitations. For instance, Plaintifftestified that she took a drawing class that required students to stand, but that she was allowed to sit as needed.when her feet and back began to hurt. (AR 105-106.) In addition, Plaintifftestified that she was enrolled in ooallowed a mandatory freshman dance class, but that she was to sit out and watch and take notos" because she o'couldn't do" the class. (AR 106.) She also notes that although dancing used to be a hobby, since the progression of her illnesses, oodancing has become harder on my body." (AR 435.) Plaintifffiled an application for disabled adult child benefits based on disability on July 24,2018. (AR 52.) She also filed a Title XVI application for supplemental security income on March 18,2019. (/d.) These claims were denied on January 4,2019 and upon reconsideration on May L4,2019. (/d.) Administrative Law Judge ("ALJ") Matthew G. Levin held a hearing on February 6,2020, but no testimony was taken on this date. (AR 153-159.) On May 5,2020, a supplemental telephonic hearing was held. (AR 110-152.) Medical expert Regina Lilly, M.D. Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 6 of 40 and vocational expert ("VE') Jennifer Guerdiri gave testimony and were cross-examined by PlaintifPs counsel, Mr. James Torrisi. (Id.)Plaitrtrfftestified by telephone during athird hearing held on May 21,2020. (AR 91-109.) During this hearing, Plaintiffamended her alleged onset date to April 7, 20l6,the date of Plaintiffs 18th btthday. Qd.) Plaintiffwas admitted to the hospital for emergency medical treatment fromMay 29, 2020 through June 1, 2020 for edema. (AR 3096-3158.) These records were included in the record and were considered by the ALJ. (See AR 53, 64.) ALJ Decision Social Security Administration regulations set forth a "five-step, sequential evaluation process" to determine whether a claimant is disabled . Estrella v. Berryhill, 925 F .3d 9A,94 (2d Cir. 2019) (quoting Mclntyre v. Colvin,758 F.3d 146,150 QdCr.2014)). The same fivestep inquiry applies to the analysis of DAC benefits as to other adult disability cases. See Hanlonv. Saul,No. 18-CV-7090 (PKC), 2020wL999900,at *2 @.D.N.Y. Mar. 2,2020). First, the Commissioner considers 'ln'hether the claimant is currently engaged in substantial gainfrrl activity." 17. Second, ifthe claimant is not currently engaged in substantial gainful activity, then the Commissioner considers o'whether the claimant has a severe impainnent or combination of impairments." Id.T\ird, if the claimant does sufler from such an impairment, the inquiry is "whether the impairment meets or equals the severity of the specified impairments inthe Listing of Impairments." Id.Fotxth, if the claimant does not have a listed impairment, the Commissioner determines, oobased on a'residual functional capacity'assessment, whether the claimant can perform any of his or her past relevant work despite the impairment.'o Id. Finally, if the claimant is unable to perforn past work, the Commissioner determines '\rhether there are significant numbers ofjobs in the national economy that the claimant can 6 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 7 of 40 perform given the claimant's residual functional cpalc;fi, age, education, and work experience." Id.; see 20 C.F.R. $$ 404.1520,416.920.4 The claimant bears the burden of proof at steps one through fow. Estrella,925 F.3d at 94. At step five, there is a "limited burden shift to the Commissioner" to *show that there is work in the national economy that the claimant can do." Poupore v. Astrue,566 F.3d 303, 306 QdCr.20A\ (per curiam). Employing the sequential analysis, ALJ Levin first determined that Plaintiffhas not engaged in substantial gainful activity since step two, the April 7,2016,the alleged onset date. (AR 55.) At ALJ found that Plaintiffhad two severe impairments during the relevant period: (1) chronic kidney disease, status post kidney transplant; afi Q) osteoporosis/osteopenia. (Id.) The ALJ noted that these severe impairrnents significantly limited Plaintiffs ability to perform basic work activities as required by SSR 85-28. Qd.)The ALJ determined Plaintiffs diagnoses for (1) atopic dermatitis/eczema; (2) hernia, post-surgical repair; (3) asthma; and (4) anxiety and depression were non-severe. (AR 55-56.) Th" ALJ also concluded that Plaintiffs symptoms associated with hypertension medication to be non-severe. (AR 56.) At step three, the ALJ concluded that Plaintitrdid not have an impairment or combination of impairments that meets or medically equals the severity of one ofthe listed impairments in 20 C.F.R. Part404, Subpart P, App'x 1. (AR 58.) The ALJ specifically referred to listings 6.03 (chronic kidney disease with chronic hemodialysis or peritoneal dialysis), 6.04 (chronic kidney disease with kidney transplant), 6.05 (chronic kidney disease with impainnent of kidney function), 6.09 (complications of chronic kidney disease), and 1.06 (fractures). (/d.) a Sections 404 and 416 arethe same in all respects, except *rat Section 404 relates to Title II claims and Section 416 relates to Title XVI claims. This decision cites to Section 416 throughout. Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 8 of 40 Next, the ALJ determined that Plaintiffhas the residual functional capacity ("MC') to perfonn light work as defined in 20 C.F.R. S 416.967(b) except as follows: [S]he can lift up to 10 pounds frequently and21.-5A pounds occasionally; she can sit for 6 hours, stand for 6 hours, and walk for 4 hours in an 8-hour workday; she can frequently climb stairs; occasionally climb ladders, ropes, and scaffolds; occasionally balance (further defined as needing to avoid narrow, slippery, or erratic moving surfaces); she should avoid stooping, kneeling, crouching, and crawling; she can occasionally push/pull bilaterally with the upper extremities; frequently handle, finger, reach in all directions withthe bilateral upper exhemities; she should avoid hazards (i.e., dangerous machinery and unprotected heights); she should avoid ing; she should avoid concentrated exposure to humidity, dusts, fumes, odors, gases, poorly ventilated areas, temperature extremes, and vibrations; she would need to take a 1O-minute break every 2-3 hours to use the restroom (and this break can coincide with regularly scheduled breaks); she should avoid physical interaction with the general public; she should have at least 6 feet of social distancing space from coworkers and supervisors; and she should avoid jobs with exposure to molds and fungus. ff (AR s8-59.) At step four, the ALJ concluded that Plaintiffhas no past relevant work experience. (AR 68.) Considering the PlaintifPs &ge, education, work experience, and RFC, the ALJ determined that there are jobs that exist in significant numbers in the national economy that the claimant can perform.(Id.) ALJ Levin concluded that Plaintiffhas not been under a disability from April 7,2016. (AR 69.) The ALJ found the medical opinion of non-examining medical expert Regina Lilly, M.D., M.P.H. persuasive. (AR 63.) The ALJ found the more restrictive medical opinion of Plaintiffs life-long primary care provider Alexandra Bannach, M.D. o'less than flrlly persuasive." (AR 65.) The ALJ did not find any of PlaintifPs other treating medical sources flrlly persuasive. Standard of Review *inability The Social Security Act (the *Act") defines disability, in pertinent part, as the 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 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 9 of 40 expected to last for a continuous period of not less than 12 months.- 42TJ.S.C. g 423(dX1XA). Under the Act, a claimant will only be found disabled if his "impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. S 423(d)(2XA). In considering the Commissioner's decision, the court conducts "aplenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision and if the correct legal standards have been applied." Estrella,925 F.3d at 95 (quottng cichocki v. Astrue,729 F.3d,172, 1,75J6 (2d Cir. 201,3) (per cwiam)); see also 42 U.S.C. g a05G). Substantial evidence means oomore than a mere scintilla"-it means, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestekv. Berryhill,l3g S. Ct. 1148, tl54 (2019) (quoting Consol. Edison Co. of N.Y. v. Nat'l Lab. Rels. Bd.,3O5 U.S. 197, 229 (1935)).The oosubstantial evidence" standard is even more deferential than the "clearly erroneous" standard; facts found by the ALJ can be rejected "only if a reasonable factfinder would have to conclude otherwise." Brauh v. Soc. Sec. Admin., Comrn'r, 683 F.3d 443, 448 ed c:r,.2012) fuer curiam) (quoting Warren v. Shalala,29 F.3d 1287 , 1290 (Sth Cir. 1994) (emphasis in the original). The court is mindful that the Act is ooa remedial statute to be broadly construed and 1iberally applied." Dousewicz v. Harris, 646 F .2d 77 l, 77 3 ed Ctr. 1 98 1 ). Analvsis Plaintiffargues the ALJ erred by improperly evaluating the medical evidence, including the opinions of the treating physician, and improperly applied the medical source regulations. Specifically, Plaintiffargues Dr. Lilly's opinion should not have been found persuasive because Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 10 of 40 (1) Dr. these Lilly inconectly summaizedPlaintifPs kidney function "faulty conclusions" tainted the ALJ's analysis @oc. 12 and activities of living, and at 4-5); Q) the records Dr. Lilly reviewed inNovember20lg were stale as they did not include Plaintiffs subsequent hospitalization and edema (id. at 5); and (3) Dr. Lilly's opinion about Plaintiffs subjective symptoms, including fatigue, did not comply with the regulatory framework .Qd.)Plaintiff ffgues that the ALJ's analysis of Dr. Bannach's opinion relied upon oomisleading, inaccurate and out-of-context assertions." (Id.) Plaintiffalso argues ttrat the ALJ did not consider whether the combined ef[ect of PlaintifPs impairments was of sufficient medical severity to be the basis for eligibility of benefits as required by regulation. Qd. at7 (citrng20 C.F.R. g aOa.1523(c)).) Finally, Plaintiffargues that in addition to supportability and consistency, the second-tier factors for evaluating medical opinions "add heft to Dr. Bannach's opinion " and should have been considered. (Doc. 12 at8.) In response, the Commissioner argues that the ALJ's analysis complied with the applicable regulations and is supported by substantial evidence. (Doc. 13 at 1.) The Commissioner contends that the ALJ's subjective symptom evaluation was supported. (Id. at3.) The Commissioner refutes Plaintiffs argument that the evidence was stale, arguing that the postJune 10, 2020 hospitalizattonand labs did not sufficiently alter the weight of evidence so as to require remand. (Id. at 4-5.) After considering these claims and reviewing the record, the court finds that the ALJ's decision is not supported by substantial evidence. On remand, ALJ Levin is instructed to: (l) consider whether the mischaracterization of evidence erors identified in this opinion would result in a different RFC determination; (2) adopt the court's findings with respect to the supportability and consistency of Dr. Lilly's medical opinion; (3) reconsider Plaintiffs 10 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 11 of 40 subjective symptom of fatigue; (4) reconsider Dr. Bannach's opinion regarding medical absences; and (5) conduct a new RFC analysis considering the combined effect of all of Plaintiffs limitations, including the effects of fatigue, chronic pain, frequent illness, menorrhagia, anxiety, depression, chronic kidney disease, and other impairments not discussed in-depth in this decision. I. Medical Evidence The court begins by reviewing the regulations that apply to the evaluation of medical evidence. "Previously, the Social Security Administration followed the 'treating physician rule,' which generally afforded controlling weight to the opinion of a claimant's treating physician so long as it'is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record."' Dany Z. v. Saul,531 F. Supp. 3d 871, S81 (D. Yt.2O2l) (alteration in original) (quoting Burgess v. Astrue,s37 F.3d ll7, 128 Qd Cir.200S). However, "[u]nder the new regulations, ALJs do not defer to, or give specific evidentiaqF weight to, any medical opinions." Dany 2.,531F. Supp. at 881; see also 20 C.F.R. $$ 404.1520c(a), 416.920c(a). Instead, *ALJs must evaluate medical opinions according to the following factors: supportability, consistency, relationship with the claimant (this factor has five sub-factors), specialization, and other factors." Id. (citing 20 C.F.R. *The most important of these factors are supportability and consistency." $ 416.920c(c)(1H5)). Id. (citng20 C.F.R. $ 416.92Ac@X2). The ALJ is required to consider supportabilrty and consistency, but need not provide an explanation for the remaining factors unless the ALJ is differentiating between different medical opinions of equal support and consistency.20 C.F.R. $ 416.902c(b). 1t Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 12 of 40 The court fust addresses whether the ALJ's treatment of Dr. Lilly's medical opinion complies with the applicable regulations. The court next addresses certain factual inaccuracies pervading both Dr. Lilly and the ALJ's analysis. Last, the court considers whether the ALJ's discussion of Plaintiffs subjective symptoms complied with the medical record and addresses PlaintifPs concern that Dr. Lilly relied upon stale medical evidence in forming their opinions. The court finds that the ALJ's analysis did comply with the relevant regulations. The court also finds that the ALJ's subjective symptom analysis regarding back pain was supported by the record and complied with the regulations, and that the medical evidence that Dr. Lilly and the ALJ considered was not "stale." However, based on the record as a whole, the court concludes that the factual mischaracterizations adopted in Dr. Lilly's medical opinion taint the ALJ's analysis and render portions of his opinion unsupported by substantial evidence. A. Regina Lily, M.D., M.p.H. Dr. Lilly, a Board-certified Nephrologist, completed a Medical Statement of Ability to do Work-Related Activities (Physical) on November 4,2079. (AR 2938-2993.) She also testified as a medical expert at the May 5, 2A20heaing. (AR l 15, 116.) Dr. Lilly based her medical opinion upon a review of PlaintifPs medical record; she did not examine Plaintiff in-person. 1. Persuasiveness I)etermination ALJ Levin found Dr. Lilly's medical opinion persuasive. He wrote: she is amedical expert who is board certified in intemal medicine and nephrology, she reviewed neady all of the evidence of record, she provided an extensive explanation for her opinion and supported her opinion with detailed citations to the record, and she was subjected to cross-examination by the claimant's representative. (AR 63-64.) ALJ Levin also wrote that Dr. Lilly "supported her opinion by explaining the reasoning for her assessment and citing to the evidence of record." (/d.) 12 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 13 of 40 The new medical regulations require the ALJ to consider the supportability and consistency ofthe medical opinion in determining persuasiveness. 20 C.F.R. g 416.902c(b)(2). In the persuasiveness analysis, the "ALJ must not only consider supportability and consistency in evaluating medical source opinions but most also explain the analysis of these factors in the decision." Prieto v. Comvn'r of Soc. Sec., No. 20-cv-3941(Rwl), 202l wL 3475625, at*9 (S.D.N.Y. Aug. 6, 2021) (citing 20 C.F.R. 5 404.1,520c(b)); Vellone v. Saul,No. I :20-CY-261 (RAXKHP),2021wL 319354,at*6 (s.D.N.y. Jan.29,202r), R. & R. adopted,2a2l,wL 2801138 (S.D.N.Y. July 6, 2A2D (ooin cases where the new regulations apply, an ALJ must explain his/her approach with respect to the first two factors when considering a medical opinion')). Moreover, the ALJ must consider oothe conflicting opinions of the treatingmedical sources," to the extent these conflict with non-examining medical sources. Shawn H. v. Comm,r of soc.,Sec., No. 2:19-cv-113,2020 wL 3969879, at*6 (D.vt. July 14,2020);20 c.F.R. g$ 404.1520c(c)(3)(v), 416.920c(cX3Xv) ("A medical source may have a better understanding of your impairment(s) if he or she examines you than if the medical source only reviews evidence in yorn folder."). An ALJ's failure to o'examine what [the doctors] used to support their opinions and reach their ultimate conclusions" is legal error. Brianne S. v. Comm'r of Soc.,Sec., No. 19- CV-1718-FPG,202l WL 856909,at*5 (W.D.N.Y. Mar. 8, 2O2l); Prieto,202lWL3475625,at *9 (citing cases). ALJ Levin's persuasiveness analysis complies with the regulations. He makes specific findings and explains his reasoning underthe supportability factor. Although the ALJ's consistency analysis is less developed, the ALJ also considered whether Dr. Lilly's opinion was consistent with the medical record and adequately explained his finding as to this factor. 13 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 14 of 40 The consistency analysis "includes consideration of factors such as urhether the evidence conflicts with other evidence from other medical sources and whether it contains an intemal conflict with evidence from the same medical source." 82 Fed. Reg. 5g54. Although the ALJ does not discuss consistency within the section anatyangDr. Lilly's medical opinion, the ALJ wrote that Dr. Lilly's opinion is oomore consistent \Mith and better supported by the longitudinal objective evidence of record," than Dr. Bannach's opinion. (AR 66.) The ALJ did ofler analysis regarding the consistency and supportability of Dr. Bannach's opinion, and concluded that these factors supported Dr. Lilly's opinion more than Dr. Bannach's. The ALJ also considered the second-tier factors of specialization, familiarity with the evidence, and cross-examination, even though these factors need only be considered when two or more sources are equally persuasive on the same subject.2O C.F.R. g 416.920c(b)(3).5 This analysis satisfies the regulatory requirement that the ALJ specifically address the consistency a of medical opinion in the persuasiveness analysis. 2. Inaccurate X'acfual Statements Plaintiffargues that factual inaccuracies in Dr. Lilly's medical evaluation and testimony tainted her opinion and render the ALJ's analysis unsupported by substantial evidence. @oc. 12 at 4.) An ALJ's evaluation of a medical opinion o'cannot be based on unsupported interpretation of raw medical evidence or mischaracterizations of the record." Marrero Santanav. Comm'r soc. sec.,No. 17-cV-2648 (vsB) (BCIO, 20t9wL233o26s,at *10 (S.D.N.Y. Jan. of L7,2olg) (citing Hendersonv. Berryhill,3l2F. Supp. 3d,364,369 (W.D.N.Y.2018).'oOne ortwo factua1 5 ALJ Levin considered these secondary factors to bolster Dr. Lilly's medical opinion, but did not consider the relationship with the claimant, length of the treatment relationJhip, frequency of examinations, pu{pose and extent of the heatnent relationship, or examining relationship in his analysis of Dr. Bannach,s medical opinion. 1,4 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 15 of 40 rnaccuracies may amount to harmless error," but where "the ALJ made nurnerous factual errors," remand is appropriate. Chondler v. Soc. Sec. Admin, No. 5:12-cv-L55,20l3 WL2482612, at*8 (D.Vt.June 10, 2013). Dr. Lilly's medical opinion relies upon factual errors. Dr. Lilly draws several flawed conclusions about Plaintiffls daily activities, diagnoses, and physical abilities. These mischaracterizations of fact are intertwined with her med.ical opinion and render her evaluation of the severity of Plaintiff s impairments inconsistent with the medical and other evidence in the record. The ALJ adopted Dr. Lilly's medical opinion and her functional limitations in determining the RFC. The most glaring enors in Dr. Lilly's understanding of Plaintiffs daily activities and physical abilities relate to walking and dance class. Dr. Lilly estimated that Ptaintiffcould sit or stand for six hours without intemrption, walk four hours without intemrption, and complete the same number of hours in a total eight-hour workday. (AR 2989.) In support of these estimates, Dr. Lilly writes that Plaintifftravels to Michigan for college; does not have osteoporosis; attends college; walks on czrmpus; and attends dance class. Qd)BatPlaintifftestified that she does not travel out-of-state for college. (AR 104.) Plaintiffalso notes that she walls at most five to ten minutes at a time between buildings on her small campus, and that she was enrolled in a mandatory dance class but could not physically participate. (AR 106.) Instead of dancing, she 'tvas allowed to sit out and watch and take notes.,, (AR 106.) The ALJ does not adequately explain why he adopted Dr. Lilly's medical opinion in his RFC finding despite drawing factual conclusions materially different from those contained in Dr. Lilly's analysis. Although the ALJ correctly notes that Plaintiffwas ooallowed to rest if needed" during the dance class, he does not explain why he nevertheless adopts Dr. Lil1y's opinion that 15 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 16 of 40 relies on PlaintifPs participation in dance class as evidence of her physical ability. (AR 59.) The ALJ acknowledged that Plaintiffdenied walking more than 5-10 minutes at a time while living on crmpus but did not explain whether these short walks on campus were consistent with Dr. Lilly's estimate that Plaintiffcould walk 4 hours per day. Qd.) Andalthough the ALJ recognized that Plaintitrdid not actively participate in dance class, he failed to address that Dr. Lilly cited PlaintifPs participation in dance class as positive evidence of physical ability. Qd.) Even if the ALJ corrected Dr. Lilly's misstatements of fact, the ALJ erred in failing to explain why he adopted her firnctional assessment despite its inconsistencies with the medical and other evidence. Dr. Lilly and ALJ Levin reference Plaintiffs college attendance as evidence that she is a "frrrctioning individual.' (AR 2997.) In response to the question, "does the objective medical evidence of record support the claimant has fatigue," Dr. Lilly simply writes, oNo." (Id.) She elaborates: "ffJatigue subjective and not documented as a limitation . . . records reflect a functioning individuat (sexually active, golng to college).- (Id.) In his decision, the ALJ cites Plaintiffs college attendance as, among other things, evidence that her anxiety and depression are not severe (AR 56-57), evidence that her back pain was managed and treatable (AR 62), and evidence that her fatigue was not severe (ld). Attending college does not independently support a finding that an individual is not disabled. See Brownv. Colvin,No. 5:13-CV-153, 20L4WL2743246,a1*1 n.l (D.Vt.Jun. 17, 2014) (finding that a claimant who takes college-level courses could nevertheless be unable to work a 40-hour week). This is especially tue-as is the case for Plaintiffi-v,,here the claimant is granted accommodations at school. Plaintiffs Section 504 accommodations at college permit 76 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 17 of 40 *fi]lexibility around class absences" and *flexibility on extended time for assignments." (AR 2e3s.) Plaintifftestifies that she regularly depends upon these accommodations to succeed in school. (AR 98-99.) Indeed, even absent disability accommodations, several courts have noted that "the ability to attend college is 'far different from engaging in regular work, frrll-time or part-time."'Ackermanv. Colvin,No. 13-CV-6675 (RLE), 2015WL 1499459,at*14 (S.D.N.Y. Mar. 31, 2015) (quoting chiappav. Sec'y of Dep't of Health, Ed. a welfare,497 361 (S.D.N.Y. 1980)); see also Ressegiuev. Sec'y of Dep't of Heahh, Ed., F. Supp. 356, & welfare,425F. Supp. 160,164 (E.D.N.Y. 1,977) (college attendance and good grades does not constitute substantial evidence that plaintiffwas not disabled). The mere fact that during the disability period Plaintiffwas able to attend college on a modified schedule-with Section 504 accommodations for medical absences-is no proof that she was not suffering from fatigue or otherwise under a disability . Ressegiue,425 F. Supp. at 164. Nevertheless, an ALJ may consider college attendance as one of many factors in evaluating the severity of a claimant's impairments. The ALJ did recognize that Plaintiffhad accommodations at school (AR 59) and discussed these accommodations in some detail witfi Plaintiffduring the hearing. (AR 98 ("I communicate with my professors because I have appointments or because I can't make it because I'm sick").) It would be fair for the ALJ to conclude that PlaintifPs ability to attend college is some evidence of the severity of her firnctional limitations in her day-to-day life. The ALJ's analysis of Plaintiffs college attendance was not a mischaracterization of evidence in the record. Although the mischaracterizations of fact in Dr. Lilly's opinion regarding PlaintifPs participation in dance class and walking 6n samFus do not amount to fabrication, these t7 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 18 of 40 conclusions reflect an incomplete-and thus inaccurate--.recounting ofthe record. For example, where a claimant testified that *he could only focus on doing a [sudoku] pvzz)e about 10 to 15 minutes before he became frustrated by his pur4'o the ALJ's finding that the claimant eqjoyed "mentally stimulating ptJziles," and so o'could not have significantly impaired concentration and persistence," was not supported by substantial evidence. Wilson v. Colvin, 21,3 F . Supp. 3d 478, 484-85 (W.D.N.Y. 2016) (cleaned up). In Wtlson, as in this case, neither the medical expert nor the ALJ fabricated evidence to support their positions. Rather, Dr. Li1ly and the ALJ adopted incomplete and flawed assumptions to engineer an image of a healthy , astiye, and energetic young woman not reflected in the record. To the extent the ALJ's recitation of the facts are inapposite with Dr. summary, the ALJ should have explained why he nevertheless adopted Dr. Lilly's factual Lilly's opinion with little modification. The factual errors and underlying Dr. Lilly's medical opinion suggest Dr. Lilly's opinion is inconsistent with other evidence in the record and therefore of little persuasive value. On remand, the ALJ should correct the mischaracterizations of evidence identified in this section, and reevaluate whether, in light of these inconsistencies, Dr. Lilly's opinion remains persuasive. 3. Subjective Symptoms - Back Pain Plaintiffargues that the ALJ's analysis on subjective symptoms did not comply with the regulatory framework. Specifically, Plaintifls argues it was error for the ALJ to find Plaintiffs subjective symptoms of pain and fatigue not well supported by objective evidence in the record. (Doc. 12 at 5.) Because the court discusses Plaintiffs reported symptoms of fatigue in more detail below, this section focuses on whether the ALJ's analysis of Plaintiffs subjective symptoms of back pain complies with the relevant regulatory framework. 18 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 19 of 40 The regulations provide that statements of subjective pain and other subjective symptoms cannot establish disability on their own. Genier v. Astrue, 606 F.3d 46,49 (2d Cir.2C1q (citing 20 C.F.R. $ 404.1529(a). At the same time, "'objective' findings are not required in order to find that an applicant is disabled." Green-Younger v. Barnhart,33s F.3d 99, 108 (2d Cir. 2003). Instead, the ALJ follows a two-step framework to evaluate allegations of pain and other subjective limitations. 20 C.F.R. S 404.1529(a). First, the ALJ considers whether the claimant sufflers from a "medically deterrninable impairment that could reasonably be expected to produce" the symptoms. Green-Younger,335 F.3d at 108 (citing 20 C.F.R. $ 404.1529(b). Second, '1he 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. g a0als29(a)). Regarding Plaintiffs complaints of pain, Dr. Lilly testified that Plaintiff"has some issues" but that these limitations can be "appropriately resolved with physical therapy." (AR 118, 127.)Dr. Lilly described Plaintiffas ooa rather active woman." (AR 119.) Dr. Plaintiffexperienced back pain and kyphosis. (AR lzt.) /.J-J Lilly testified that Levin found that Plaintiffs symptoms were not consistent with the medical and other evidence in the record. (AR 60.) Noting that Plaintiffsought treatment for back and neck pain, the ALJ concluded that "she treated this pain on her own, with heating pads and rest, she did not endorse firnctional limitations to treating providers, and she presented without serious deficits on objective examinations." (AR 62.)Tlne ALJ also notes that "[o]n objective examination. . . she was able to bend down and touch her knees but did not want to bend down fixther." (Id.) The ALJ referred generally to Plaintiff s testimony and to reports of pain and range-of- motion limitations in the medical records, and appears to accept that Plaintiffexperiences pain. t9 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 20 of 40 (AR 61 (noting complaints of "intermittent pain"), AR 62 ('endorsed pain in her lower back and hips").) The ALJ also examined the factors listed in 20 C.F.R. $ 416.929(cX3) and SSR 16-3p for pain symptoms.6 The ALJ's consideration of the subjective symptoms is supported by substantial evidence and complies with the relevant regulations. The ALJ recognized that the longitudinal evidence demonstrated that Plaintiffregularly experiences pain but did not reflect that Plaintifffrequently reported functional limitations due to pain to her providers. (AR 62.) The ALJ considered PlaintifPs daily activities (AR 5940), treatrnent (AR 61-61), and measures to relieve pain, such as heat (AR 62). The ALJ fi.rther considered Plaintiffs medical history and diagnoses. (AR 5942.) And the ALJ cited 20 C.F.R. 5 416.929 and SSR 16-3 in his opinion. (AR 54, 59.) Plaintiffsometimes endorsed functional limitations to treating providers and presented with deficits on objective examinations. At a pediatric nephrology visit on August 9,2018, PlaintifPs treating source documented "tenderness and limited mobility of her hips/back when walking and moving axound." (AR 2317.) In March 2020, a physical therapist noted limitations in Plaintiffs range of motion and that Plaintiffhad difficulty walking more than short distances. 6 These factors are: (i) (ii) (ii1) (iv) (v) (vi) (vii) Your daily activities; The location, duration, frequency, and intensity of yorn pain or other symptoms; Precipitating and aggravating factors; The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms; Treatnent, other than medication, you receive or have received for relief of your pain or other symptoms; Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and Other factors concerning your firnctional limitations and restrictions due to pain or other symptoms. Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 21 of 40 (AR 3088.) Plaintiffs physical therapist wrote that she only had a"fa1r" prognosis to "[r]educe pain and increase firnction to enable patient to walk interrnediate distances . . . and increase function to enable the patient to sit on selected surfaces comfortably" in the short terrn. (AR 3089.) However, the ALJ is not bound to defer to any of these sources. Tenderness and limited mobility do not necessarily establish a functional deficit. The physical therapist did note some ftmge of motion and pain limitations, particularly regarding walking and standing for long periods. But this evidence does not contravene the ALJ's finding that Plaintitrdid not endorse functional limitations to providers and did not present with serious deficits on objective examinations. The sources the ALJ cites to support his propositions regarding the consistency of PlaintifPs reported pain with the medical record support his opinion. The ALJ cites one page the medical record showing a of nornal physical examination of extremities. (AR 62 (citrng, e.g., 4F-2604 ("grossly normal movement of all extremities").) The other evidence the ALJ cites shows that Plaintiffregularly endorsed pain to her treating providers, but not whether this pain caused long-tenn functional limitations. (AR 62 (citrngAR 1231 ("She has still been having pain and discomfort around her upper back around her neck and muscles"), AR 2315 (same), 4x-2546 ('tired . . . lower back pain and pain in her hips. She feels these pains are more uncomfortable since she had her depo shot.").) In sum, the ALJ followed the two-step framework for addressing subjective symptoms required by the regulations, and his conclusion that PlaintifPs back pain did not create serious functional limitations is supported by substantial evidence. (AR 62.) 2t Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 22 of 40 4. Staleness of Medical Evidence Last, Plaintiffargues Dr. Lilly's opinion is unpersuasive because it is based on stale medical records that no longer reflected PlaintifPs medical condition at the time the ALJ rendered his decision. (Doc. 12 at 5.) "fM]edical source opinions that are conclusory, stale, and based on an incomplete medical record may not be substantial evidence to support an ALJ finding." Camtlle v. Colvin,104 F. Supp. 3d329,343 (W.D.N.Y. 2015) (quotations omitted), affd,652 F. App'x 25 (2dCr.2016). The court finds that Dr. Lilly's medical opinion evaluating PlaintifPs physical limitations is not based on stale medical evidence. BetweenNovember z}lg,when Dr. Lilly drafted her medical opinion, and the Jwrc2020 administrative hearing, PlaintifPs diagnosis for osteopenia progressed to osteoporosis, and her diagnosis for chronic kidney disease had progressed to Stage ru/w. (AR 1098, 1203,1285,3022.) However, the remainder of Dr. Lilly's medical opinion- although it may be flawed in other respects-is otherwise derived from a current medical record. Dr. Lilly indicated that the presence of osteoporosis instead of osteopenia might more severely limit Plaintiffs physical abitities. (,See AR 2988 ('No osteoporosis, but report of fractures'),2989 ("No osteoporosis.').)7 These notes imply that her firnctional limitation assessment for Plaintiffmight be more stringent had Plaintiffbeen diagnosed with osteoporosis. But even if Dr. Lilly had known about Plaintiffs changed diagnosis, it is not clear that the symptoms of Plaintiffs illness had also progressed, nor what effect this change had on her frrnctional limitations. It is also unclear whether Dr. Lilly would have changed her physical 7 Dr. Lilly incorrectly testified that the only change in Plaintiffs medical record since November 2019 was that Plaintiffhad started physical therapy. (AR 119.) 22 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 23 of 40 limitation estimates for lifting, carrying, sitting, standing, and walking had she known plaintiffs diagnosis for osteoporosis. (AR 2988,2989.)Based on this speculation alone, the court cannot reject Dr. Lilly's medical opinion as stale on this basis. The ALJ did note Plaintiffs May-June 2020 hospitalizatron. (AR 52-53.) His conclusions regarding the reason for this hospitalization and its bearing on PlaintifPs medical record accurately reflect the record. Although the hospitalizatronfirther documents the progression of Plaintiffs chronic kidney disease to Stage IIUfV, not Stage II as noted by the ALJ, Plaintiffhas not shown how this change in diagnosis would affect the outcome in her case. The ALJ has already found Plaintiffs impairments to be oosevere." Absent a showing of a worsening of symptoms that would render Dr. Lilly's opinion out-of-date, the court finds that Dr. Lilly's opinion B. and the ALJ's analysis were not based on stale evidence. Alexandra Bannach, M.D. Plaintiffargues that the ALJ improperly found the medical opinion of Plaintiffs longterm treating physician Dr. Alexandra Bannach ooless than firlly persuasive." @oc. 12 at3; AR 65.) First, Plaintiffargues that even after the demise of the treating physician rule, the ALJ must still presume that treating sources have a better understanding of a claimant's impairrnents than a medical source who reviews only evidence in the record. (Doc. 1,2 at4.) Second, Plaintiff takes issue with the ALJ's finding that Dr. Bannach's opinion is inconsistent with the medical record, arguing that the ALJ ignored extensive evidence of physical pain, fatigue, and illness that supported Dr. Bannach's opiniol (Id. at 5-6.) In response, the Commissioner argues that the ALJ's analysis complied with the regulatory framework because the new medical source regulations "eliminate the perceived hierarchy of medical sources [and] deference to specific medical opinisns." @o". l3 at 5 (quoting Kimberly M. S. v. Comm'r of Soc. Sec., No. l:20-cv- 23 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 24 of 40 615-JJM, 2021WL 2566755, at *2 (W.D.N.Y. June 23,2021)).) The Commissioner frrther argues that "fg]enuine conflicts in the medical evidence are for the Commissioner to resolve," and that the court should defer to the Commissioner's resolution of conflicting evidence. (Doc. 13 at 5 (quoting Veino v. Barnhart,3l2 F.3d 578, 588 (2d Cur.2002)).) Dr. Bannach is Plaintiffs treating pediatrician and primary care provider. She has been Plaintiffs treating physician since birth. (AR2769.) In assessment form, Dr. Bannach writes that given transplant, a letter accompanying her medical Plaintiffs "devastating" "[i]t is a testimony to the miracles of modern medicine (Id.)lnher medical opinion letter, Dr. Bannach lists "only a diagnoses and kidney that she is even alive today." few" of Plaintiffs cu:rent and past medical problems that limit her ability to work. (/d.) These include chronic immunosuppression, reduced kidney firnction, chronic fatigue, chronic back pain, spinal compression fracture, osteopeni4 chronic eczema, gout, depression, PTSD, and anxiety. (AR 2769-2770.) Dr. Bannach provides a non-exhaustive description of how these conditions affect PlaintifPs ability to work, including: reduced muscle strength, frequent illness, frequent medical appointments, strict drinking and voiding schedule, fatigue-induced absences, difficulty sitting and standing comfortably for long periods, limited ability to walk for long distances, and impaired social interactions in school. (Id.)Dr. Bannach concludes: Alexis is fortunate to be alive. Her medical problems, despite extremely successfi.rl treatments by a large team of medical specialists and excellent teafinent compliance on the part of Alexis, have a lasting impact on her quality of life and make it impossible for her to carry out the work required to hold employment. This is in no part due to lack of motivation or trial by the patient but is completely out of her control. I cannot think of a patient in my entire practice who is more qualified to meet criteria for disability. (AF-277a.) Dr. Bannach completed a medical assessment which reflects similarly restrictive limitations. (AR 2771-2774.) Dr. Bannach references PlaintifPs documented diagnoses 24 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 25 of 40 throughout as explanation for her limitations. (1d.) Dr. Bannach opined that Plaintiffcould lift or. carry less than2} pounds up to one third of an 8 hour day due to chronic back pain, spinal fracture, and osteopenia. (AR 2771.) She further opined that standing and walking are aflected by Plaintiffs impairments, specifically chronic fatigue due to renal transplant, immunosuppressant therapy, anemia, and frequent illness. (1d.) She estimated that Plaintiffcould sit, stand, or walk for 3 hours in an 8 hour day. (Id.)Dr. Bannach noted that fatigue is a symptom of kidney problems, and Plaintiffexperiences chronic fatigue which "greatly impacts her ability to function." (AR 2770.) Last, Dr. Bannach wrote that frequent appointnents as well as Plaintiffs documented history of missing school due to chronic fatigue and illness support a finding that Plaintiffwould miss two or more days of school per month. (AR2769-2770,2772.) ALJ Levin found Dr. Bannach's opinion o'less than fully persuasive." (AR 65.) The ALJ concluded that Dr. Bannach's opinion was "inconsistent with her own treatment notes as well as the longitudinal evidence of record.* Qd) As examples of inconsistencies between Dr. Bannach's opinion and the medical record, the ALJ notes that Plaintiffoooften denied fatigue or decreased energy"; "travel[ed] extensively by plane"; "walk[ed] everywhere on campus"; "ha[s] no problem with attendance or concentration"; and "participat[es] in a dance class twice per week." (Id.) T\e ALJ also opined that *Dr. Bannach's opinion that the claimant would be off task and absent from work frequently is speculative," noting that Plaintiffis able to ooattend college without noted attendance problems." (AR 66.)8 As a preliminary matter, the court rejects PlaintifPs argument that the ALJ must presume that treating sources have a better understanding of a claimant's impaimrents than a medical 8 Having already discussed the mischaracteizationof the record regarding walking on campus and dance class above, the court notes only that the same errors of fact that pervade Dr. Lilly's opinion remain relevant in the ALJ's analysis of Dr. Bannach's opinion. Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 26 of 40 source who reviews only the evidence in the record. @o". 12 at 4.) applicable regulations suggest that the opinions of treating sources While it is true that the will often be persuasive, the regulations prohibit ALJs from defening to the opinion of any medical source. 20 C.F.R. $$ 404.1520c(a),416.920c(a). The court finds no eror on this point. The court also clarifies that insofar as Dr. Bannach expressed any opinion that Plaintiffis deserving of disability or unable to engage in firll-time worb the regulations indicate that such statements are reserved to the commissioner and are "inherently neither valuable nor persuasive." 20 C.F.R. $$ 404.1520b(c)(3), 4l'6.920b(c)(3). The court turther clarifies that the ALJ is under no obligation to consider factors other than supportability and consistency in evaluating medical opinions-such as the length ofthe treating relationship and frequency of examinations---except where two or more medical opinions are equally persuasive on the sarne issue. 20 C.F.R. $ 4O4.l52Oc(bX3).Thus the ALJ did not err in failing to discuss the relationship with the claimant in his analysis of Dr. Bannach's opinion. For the reasons that follow, the court finds that the ALJ's analysis of Dr. Bannach's medical opinion does comply with the regulatory framework, but that the ALJ's conclusions regarding PlaintifPs symptoms of fatigue and absences-and Dr. Bannach's incorporation these symptoms into her of opinion-are not supported by substantial evidence. The ALJ erroneously concludes Dr. Bannach's medical opinion is not consistent with the record regarding Plaintiffs symptoms of fatigue because "the claimant often denied fatigue or decreased energy." (AR 65.) As explained below, the ALJ's finding that "the claimant often denied fatigue or decreased ensrgy" and that "the claimant's allegations regarding fatigue were subjective and not documented in the record as a limitation" are not supported by substantial evidence. 26 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 27 of 40 1. Fatigue Where the severity of a claimant's diagnosis depends largely on self-reported symptoms, rather than on diagnostic testinfi, it is essential that the ALJ engage with the treating medical source's interpretation of subjfctive symptoms. This is especially true where subjective criteria-such as pain, fatigue, and mental condition-are central to the patient's impairment. See Green-Younger,335 F.3d at 107. Treating sources forrn medical opinions based on their own observations and the patient's self-reported symptoms, and it is well-settled that "[a] medical diagnosis will often be informed by the patient's subjective description of his or her symptoms." Staceyv. Comm'r of Soc. Sec. Admin.,799 F. App'x 7,9 QdCi.2020} The new regulations "still recognizethe 'foundational nature' of the observations of treating sources, and 'consistency with those observations is a factor in determining the value of any [treating source's] opinion."' Shawn H.,2A20 WL 3969879, at *6 (alteration in original) (quoting Barrettv. Berryhill,906 F.3d 340,343 (5thCir.2018)). Whenaphysicianacceptswhat the patient is saying and incorporates their expression of their subjective experience into their notes and opinion, the court should rely on that opinion even measurable manifestation of the See Flynnv. Comm'r of Sec. if there is not any outwardly impairment-as would be available for physical impairments. Sec. Admin.,729 F. App'x lt9,l22QdCr.2018) (hetreating provider's perspective remains important in cases involving subjective symptom reporting, as diagnosis depends not on x-rays or MRls but rather'oon less discretely measurable factors, like what the patient says in consultations."). Although the ALJ need not "oreconcile every conflicting shred' of medical evidence," the ALJ must at least expressly discuss conflicting evidence and explain why he or she is rejecting it. Sesa v. Colvin,629 F. App'x 30, 33 Qd Cir. 2015) (quoting Miles v. Harris, 645 F .2d 122, 124 (2d Ctr. 1 98 I ). 27 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 28 of 40 The Commissioner is correct to note that it is the province of the court-to weigh conflicting evidence. (Doc. the ALJ-and not this 13 at 5.) However, the court is not required to adopt ALJ's resolution of conflicts in the record where the ALJ cherry-picks isolated instances of favorable evidence to manufacture ambiguity where there is none. Garrisonv. Colvin,759F.3d 995,7077 (9th Cir. 201,4) ("[I]t is error for an ALJ to pick out a few isolated instances improvement over a period of months or years and to treat them as a basis 15t of "6nsluding a claimant is capable of working.'). Accordingly, the court concludes that it was improper for the ALJ to rely on Plaintiffs occasionally normal reporting of energy and fatigue in examinations '1rhile simultaneously ignoring the contrary conclusion of the very physicians who made the evaluations ." Stacey,799 F. App'x at I 1. The ALJ's analysis of Dr. Bannach's opinion regarding PlaintifFs fatigue does not reflect an accurate accounting of the evidence in the record. The ALJ wrote that Plaintiff"regularly denied symptoms of fatigue, decreased energy, or medication side effects." (AR 61.) The of evidence the ALJ cites in in support of his finding that Plaintiff"regularly denied symptoms fatigue" do not actually support his claim. (See AR 6142,65.) Only three of the ALJ's citations to the record indicate that Plaintiffever denied fatigue or tiredness.e Several of the ALJ's citations do not reference fatigue at al1.l0 And although it is true that the medical record occasionally notes *normal" or o'stable" energy, 1l it is not true that Plaintiff regularly denied e AR 62 (citing Ex. 6F (AR 1100 (no fatigue)); Ex. 3lF (AR2952 (negative for fatigue)); Ex. 6F (AR 1130 (no fatigue))). t0 See, e.g. , AR 1ll4; AR 1259; AR 1262; AR 2548; AR269l; AR 2805; AR 28 17; AR 3130; AR 3146. rt See, e.g., AR 874 (sleeping within normal limits in September 2016); AR 1080 ('nonnal sleep and appetite"); AR 1115 ("normal sleep and appetite and energy"); AR 1,129- Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 29 of 40 these symptoms. Occasionally reporting "normal" or oodenying" oostable" energy levels is not the same as fatigue. This is especially true for chronically ill individuals who endure a lower general baseline for we11being.12 Here, the ALJ did not mention-let alone expressly discuss-numerous mentions in the medical record documenting complaints of fatigue, decreased energy, and excessive sleep, nor the effect this fatigue had on Plaintiffs ability attend school and appointments. Plaintiff frequently reported severe back pain, fatigue, excess sleep, grogginess, malaise, and low energy.l3 PlaintifPs complaints of fatigue continued throughout the disability period, contradicting the ALJ's finding that Plaintiff"has more recently stopped reporting any symptoms 1130 ('normal energy . . . no polyuria or fatigue"; 1135 (sleeping and appetite within normal limits). As one teating nurse commented in an intake evaluation for Plaintifl "[d]ue to her chronic immunosuppressive state, clinical presentations and laboratory values are different and not always reliable and comparable to healthy individuals in Alexis, complicating evaluations." (AR 2621.) 12 See, e.g., AR 184 ("pain, malaise, weakness, fatigue"); AR 861 (*headaches, backpain, feeling very $oggy"); AR 862 ('gross hematuria with dysuri4 not feeling well for 2-3 and weeks. . . . Started on Clindamycin due to chills, headache, lower back pain . . . stopped due to fatigue and ongoing back pain . . . . Felt great on 11113116, started feeling worse agatayesterday . . . fatigue.'); AR 868 ("decreased energy and appetite"); AR 871 ("very tired. Sleeping12 hotrslday when she goes to school"); AR 872 ('decreased energy and appetite . . . tired appearing, but alert'); AR 874 C'very tired, achy"); AR 877 ('fatigue and back pain"); AR 878 ("fatigue"); AR 1094 ("back pain x 1 week, lower back; more pressure and aching . . . discomfort standing up, unable to find any comfort position, not able to sleep . . . limping secondary to pain, tial acetaminophen, heat, hydrocodone without any improvement. Limited options for pain managemenf'); AR 1100 ('back pain . . . really bad, she has tried heat, ice, Tylenol - nothing helps. She can't sit, she can't lay down"); AR 11L L (o'decreased energy and appetite"); AR 1123 ('ofeels blah-states she gets a cold every two weeks"); AR 1141 ("decreased energy and appetite"); AR 1129 (sleeps 8 - 10 hours per night); AF-262I ('fatigued"); AR 1330 ('feeling poorly"); AR 1346 ("fati,gue'); AR 1356 ("fatigued"); AR 2606 (admitted to Darfinouth-Hitchcock Medical Center for'ofatigue, loss appetite, nausea, cold shakes"); AR 2641 ("feeling fatigued'); AR2642--2643 ("fatrgrc is unfortunately a common complaint for Alexis"); AR 3009 ("claimant does appear to have fatigue"). 13 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 30 of 40 of fatigue or decreased energy to treating providers." (AR 64.) For instance, Plaintiffreported fatigue during visits on June 5,2017 (AR 1111 ('decreased energy and appetite")), October 24, 2018 ("fatigue, irritability, poor quahty of life")), January t6,201"9 (AR262l ('feeling fatigued")), and was admitted to Dartrnouth-Hitchcock Medical Center on February 20,2019 for oofatigue,loss appetite, nausea, cold shakes" (AR 2606). Plaintiffs diagnoses and the documented side-effects of her medications corroborate her subjective complaints of fatigue. 20 C.F.R. 5 416.929(cX3).Three of PlaintifPs medications list drowsiness or fatigue as a side-effect,l4 and fatigue is a common symptom of Chronic Kidney Disease. (AR 529.) It was not error for the ALJ to consider Plaintiffs occasional travel in his analysis of whether Plaintiffs reported activities were consistent with Dr. Bannach's medical opinion. See Donnellyv. Comm'r of Soc. Sec.,49 F. Supp. 3d289,306 (E.D.N.Y.2014). Atthe same time, Plaintiffneed not be an invalid in order to be found disabled. Balsamo v. Chater, l42F.3d 75,81 QdCtr.1998). Evidence of some travel might indicate what types of activities a claimant can perform but must still be considered in light of the objective and other medical evidence in the record. 14 Three of Plaintifls active prescriptions-Amlodipine (for high blood pressure), Cetirizine (for allergies), and Hydroxyzine (for skin itching and anxiety)-list fatigue or drowsiness as side effects. Amlodipine, U.S.National Library of Medicine: MedlinePlus, https://medlineplus.gov/druginfo/meds/a692044.htm1(last visited Feb. 16, 2022) ('drowsiness, excessive tiredness"); Cetirizine, U. S. National Library of Medicine: MedlinePlus, https://medlineplus.gov/druginfo/medsla698026.html (last visited Feb. 16, 2022) (o'drowsiness, excessive tiredness'); Hydroxyzine, Mayo Clinic: Drugs and Supplements, h@s://www.mayoclinic.org/drugs-supplements/trydroxyzine-oral-route/side-eflects/drg20311434 (last visited Feb. 16, 2022) ('tnusual tiredness or weakness . . . drowsiness . . . severe sleepiness"). 30 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 31 of 40 After reviewing the record, it is not possible to draw two conflicting positions from the evidence about Plaintift's energy level and fatigue. See Medhaug v. Astrue,578 F.3d 805, 813 (8th Cir. 2009) ("If, after reviewing the record, the court finds it possible to draw two inconsistent positions from the record and one of those positions represents the ALJ's findings, the court must affirm the ALJ's decision.") (cleaned up). The only reasonable conclusion supported by the evidence in the record is that Plaintiffexperienced chronic fatigue, low energy, and excessive sleep throughout the disability period. Accordingly, the ALJ's finding that Plaintiff"denied symptoms of fatigue, decreased energy, or medication side eflects," is unsupported by substantial evidence in the record. (AR 61.) 2. Sitting Standing and \ilalking Dr. Bannach opined in August 2019 thatPlaintiffcould not sit stand or walk for periods of more than one hour. (AR 2770.) She subsequently noted that Plaintiffcould sit, stand, or walk for three hours in an eight hour day, and that Plaintiffs standing and walking were affected by her impairments. (AR 2771.) The ALJ rejected Dr. Bannach's opinion on sitting, walking, and standing as unsupported by any objective findings in the record, as well as Plaintiffls daily activities. (AR 65.) He writes, 'oDr. Bannach's opinion that it would be 'impossible' for the claimant to sit, stand, or walk for more than an hour . . . is overstated and highly restricted, it is not supported by any objective findings, and it is inconsistent with the claimant's reported activities, including frequent travel, throughout the record." (AR 65,2770.) There is some medical evidence in the record that PlaintifPs back pain and fatigue interfered with sitting, standing, and walking for long periods. However, this evidence does not support Dr. Bannach's highly restrictive opinion that it would be impossible for Plaintiffto sit, stand, or walk for periods of more than one hour at a time, or three hours total in an 8-hour 31 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 32 of 40 workday. In March z)z},Plaintiffvisited with Sunrise Physical Therapy for evaluation and treatment for lower back and neck pain resulting from osteoporosis. (AR 3087.) The physical therapist noted that Plaintiffoocan walk short distances, but pain prevents [her] from walking intermediate distances ." (Id.) Plaintifftold her physical therapist that pain limits her ability to sit more than one hour and stand more than ahalf hour at atime. Ud.) After the evaluation, the physical therapist reported that Plaintiffoohas a fair prognosis" to "[r]educe pain and increase function to enable patient to walk intermediate distances . . . and increase function to enable the patient to sit on selected surfaces comfortably.'(AR 3089.) This physical evaluation is consistent with Dr. Bannach's estimation that Plaintiffwould not be able to sit, stand, or walk for longer than one hour at a time due to pain and other limitations. It is also consistent with Plaintiff s own testimony that she can walk for 30 minutes and stand for 20-30 minutes before she experiences pain. (AR 105, 108.) Indicia of pain while walking and limited mobility is mentioned during visits with other physicians. (See, e.g., AR 2317 @r. Adam 'Weinsten notes ootenderness and limited mobility of her hips/back when walking and moving around"), AR2620 ("pain level without meds 7/1,0 - such as walking").) However, .. . interferes with daily activities it is not clear that these physical evaluations are "objective findings" because they incorporate Plaintiff s self-reported symptoms. Although the ALJ omits some evidence showing that sitting, walking, and standing for more than an hour at a time is difficult and painful for Plaintiff, the court cannot find that the ALJ's finding regarding Dr. Bannach's sitting, standing, and walking limitation is not supported by substantial evidence. Plaintiffs history of plane and car travel is some evidence that she can sit, stand, or walk for more than an hour at a time. And atthough the ALJ does not cite to them in his decision, there are other indications from the record that Plaintiffcan sit for longer periods 32 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 33 of 40 than those defined in Dr. Bannach's opinion. (See, e.g., AR24l7 ("She sat in the office chair for the fulI hour and exhibited no outward sign of physical pain while sitting still, but she stayed very sti11.").) Moreover, Plaintifftestified that on Tuesdays and Thursdays, she wakes up at 7:00, has two classes in the moming, eats lunch, and has class from 3:30 until 5:30. (AR 99.) This represents at least four hours of sitting, walking, and standing in some combination twice a week. While this is not evidence that Plaintiffcould sit, stand, and walk in some combination for a period long enough to support firll-time employment, this evidence indicates Dr. Bannach's opinion on sitting, standing, and walking was overly restrictive. Although the ALJ need not address all conflicting medical evidence in the record, see Sesa,629 F. App'x at33, on remand, the ALJ should explain how he has considered PlaintifPs March 2020 physical therapy evaluation, and what effect, if any, this evidence has on Plaintiffs RFC determination regarding sitting, standing, and walking. The ALJ should also address VE Guediri's testimony that if an individual was limited to sitting, standing or walking, in any combination for less than eight hours per day, they would not be able to maintain any full-time work. (AR 144.) 3. Absences The court tums to the ALJ's dismissal of Dr. Bannach's opinion that Plaintiffwould be absent from work two or more days per month. In finding this portion of Dr. Bannach's opinion unpersuasive, the ALJ wrote that Dr. Bannach's opinion that Plaintiffwould be 'oabsent from work frequently is speculative and not supported by the longitudinal evidence of record, which reflects that the claimant is able to . . . attend college without noted attendance problems . . [and] attend her follow up appointnents with various ffeating providers." (AR 66.) 33 . Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 34 of 40 It is true that Plaintiffwas able to attend follow up appointments with treating providers. But substantial evidence does not support the ALJ's finding that Plaintiffs absences are speculative. Rather, the record as a whole indicates that Plaintiffregularly misses school and other obligations due to fatigue, pain, frequent medical encounters, and chronic illness. Accordingly, the ALJ's finding that the tongitudinal evidence of record does not support absences of two or more days per month is not supported by substantial evidence. The ALJ's analysis of PlaintifPs absences is flawed for two reasons. First, the ALJ *normal attendance" at school. Second, the cherry-picks favorable evidence to find Plaintiffhad ALJ rejects the only medical opinion attesting to absences due to medical impainnents in the record and substitutes his own opinion about medical absences. Because the ALJ may not substitute his own opinion for that of a medical source, and there is no medical source found fully or partially persuasive in the record other than Dr. Bannach who provided an opinion on absences per month due to impairments, the a. ALJ should not have disregarded this opinion. Objective Evidence Where a claimant is likely to be absent from work as a result of her impairments or treatment, the ALJ must consider whether these absences would preclude an individual from maintaining full-time employment. See Matos v. Comm'r of Soc. Sec., No. 1'7'CY-2371 (GBDXSN),2018 WL 4658801, at *9 (S.D.N.Y. July 16,201,8). "An ALJ cannot recite only the evidence that supports his conclusion while ignoring contrary evidence." Meuser v. Colvin,838 F.3d 905,912 (7th Cir. 2016). The parties do not *normal" findings regarding absences from school. However, dispute that the ALJ recited some the ALJ prioritized these records as evidence of normal attendance without reference to other 34 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 35 of 40 evidence relevant to a finding of medical absences. The ALJ offers no explanation as to what role, if any, this conflicting evidence played in his conclusions. The medical record shows ttrat during the disability period, Plaintifffrequently missed school because of illness, fatigue, and medically-necessary appointrnents. (See AR 861 ('Missed school days since last visit: 3 weeks and 3 days"); AR 1332 ('omissed 10-1,2 days of school in the past 4 weeks due to illness"); AR 1422 ("missed a week of school because of worsening fatigue, ache, and a bit of a cough"); AR 2930 ("a few missed appointments because of health reasons").) In support of his finding that Plaintiffhad normal attendance in school, the ALJ cites only one mention in the record suggesting Plaintiffhad normal attendance .(SeeAR 93 (citing AR 2604 ("normal attendance").) The other evidence ALJ Levin cites shows only that Plaintiff attends college, not that she does so without absences. (See AR 93 (citing AR2641, ("Continues in online college classes"); AR 2940 (school transcript); AR 3087 (*Full time Student at Johnson College . . . able to attend school.").) Thus the ALJ recited the minimal evidence supporting his conclusion and ignored contrary evidence that Plaintiffs immunosuppressed state causes frequent illness, medically-necessary appointments, and fatigue that affect her ability to attend school or work full-time. This amounts to impernissible cherry-picking and therefore the ALJ's finding regarding work absences is not supported by substantial evidence. b. Medical Opinion Evidence Dr. Bannach opines that Plaintiffwould miss two or more days per month due to "[a]cute illness, appointments; fatigue." (AR2772.) Dr. Lilly does not provide any opinion on whether P1aintiffs frequent illness or symptoms would lead to frequent absences. (See AR 2957-2990.) The ALJ did not find any other medical source persuasive who opined on Plaintiffs absences. In 35 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 36 of 40 the absence of a conflicting medical opinion on this issue, the ALJ should not have substituted his own opinion on medical absences for that of Dr. Bannach's. It is improper for the ALJ to independently evaluate the evidence and substitute his judgment for that of a medical source. Rohan v. Chater,98 F.3d 966,970 (7th Cir. 1996). "ffihiIe an [ALJ] is free to resolve issues of credibility as to lay testimony or to choose between properly submitted medical opinions, he is not free to set his own expertise against that of a physician who [submitted an opinion to or] testified before hirn." McBrayer v. Sec'y of Health & Human Servs. , 712 F .2d 795, 799 (2d Cir. 1933) (internal quotation marks and citations omitted). In the absence of a supporting expert medical opinion, "the ALJ should not have engaged in his own evaluations of the medical findings." Filocomo v. Chater,g44F. Supp. 165, 170 (E.D.N.Y. ree6). Dr. Bannach had a longitudinal understanding of Plaintiffs medical history and symptoms. Her estimate that Plaintiffwould miss two or more days per month due to impairments is based on frst-hand medical experience treating PlaintifPs acute illness and fatigue. Although the ALJ concluded that Dr. Lilly's medical opinion was more persuasive than Dr. Bannach's opinion, he did not find Dr. Bannach's opinion unpersuasive and therefore should have adopted her opinion to the extent her opinion was not contradicted by Dr. Lilly's. The ALJ rejected Dr. Bannach's opinion that PlaintifPs impairment would result in frequent absences and supplanted his own opinion-unsupported by objective evidence in the record-finding Plaintitr would miss fewer than2 days per work each month due to impairments. Because the ALJ cited no medical evidence to support his belief that Plaintiffwould miss fewer than two days per month, the ALJ's substitution of his own judgment for that of a medical source was improper. Rohan,98 F.3d at970. 36 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 37 of 40 The ALJ's rejection of Dr. Bannach's work absence estimate is not harmless error. VE Guediri testified that "missing even one day amonth from work on a consistent basis would be work-preclusive." (AR 146.) Had the ALJ adopted Dr. Bannach's opinion that Plaintiffwould miss two or more days of work per month, he would have been compelled to find Plaintiff disabled. On remand, the ALJ should reevaluate whether Plaintiffwould not miss more than one day of work per month based on PlaintifPs documented school absences and Dr. Bannach's uncontroverted medical opinion. II. ResidualFunctionalCapacityDetermination Plaintiffargues that the same elrors and mischaracterizations of fact that pervade the ALJ's medical opinion analysis render the RFC determination rmsupported by substantial evidence. The Commissioner responds that the RFC finding is supported by the opinion and testimony of Dr. Lilly and so should be affirmed. (Doc. 13 at4-) ln making an RFC determination, the ALJ must consider all of the claimant's symptoms and the extent to which the claimed symptoms can reasonably be accepted as consistent with the objective medical and other evidence. 20 C.F.R. S 416.929. The ALJ is "required to take the claimant's reports of pain and other limitations into account," and failure to consider "all of the relevant medical and other evidence" in the R}'C analysis is reversible error. Genier,606 F.3d at 49-50; see also 20 C.F.R. S 41,6.929(c)(3), (dX4). The ALJ found that, among other restrictions, Plaintiffcould sit and stand for six hours per day and walk for four hours per day. (AR 5S.) The ALJ found that Plaintiffcould 10 pounds "lift up to frequently and 21-50 pounds occasionally.' (AR 58.) The ALJ declined to find that Plaintiffwould be absent more than one day per month. (AR 66.) Based on this RFC finding and 37 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 38 of 40 the VE testimony, the ALJ determined that there were jobs that existed in the economy that Plaintiff could perform. The ALJ adopted Dr. Lilly's evaluation of physical limitations in his RFC determination. Dr. Lilly wrote that Plaintiffcould occasionally 1ift up to 50 pounds, though also notes that Plaintiffshould "avoid heavy lifting' due to kidney tansplant, groin placement, and report of fracture and osteopenia. (AR 2988.) Dr. Lilly indicates that Plaintiffcan occasionally push/pull, but also writes that Plaintiffshould'oavoid pushlpull" on the surme page. (AR 2990.) The ALJ did not explain why he assessed lesser limitations as to heavy lifting and pushing and pulling than those identified by Dr. Lilly, whose opinion was the least restrictive RFC opinion in the record. Nor did the ALJ explain how he considered the internal inconsistencies in lifting, pushing, and pulling in Dr. Lilly's RFC opinion. Instead, the ALJ characteized his assessment of Plaintiffs ability to lift, push, and pull as in agreement with Dr. Lilly's opinion despite these inconsistencies. ALJ Levin's determination that Plaintiffcould perform light work and lift up to 50 pounds occasionally is unsupported by substantial evidence. (AR 58.) It is facially unteasonable for the ALJ to conclude that a22-year old woman with osteoporosis and a history of vertebral fractures-who measures 4 foot 7 inches tall and weighs less than 111 poundscould lift 50 pounds atall,let alone up to one-third of a workday. On remand, the ALJ should evaluate \Mhat effect, if any, an amended RFC limitation on lifting weights greater than20 pounds and limitations in pushing and pulling would have on the disability determination. The ALJ did not err in finding Dr. Bannach's estimate that Plaintiffcould sit, stand, and walk for at most three hours per day unpersuasive. However, the court concludes that substantial evidence does not support the ALJ's RFC estimate that Plaintiffcan sit for six hours, stand for 38 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 39 of 40 six hours, and walk for four hours in an eight-hour workday. (AR 58.) As support for this finding, the ALJ generally discusses evidence that Plaintifftraveled viaplane (AR 62-63), walks on campus (AR 62), walked without difficulty during a consultative examination(id.), and was able to get out of bed and ambulate independently during her recent hospitalization (AR 61). As discussed above, this evidence does not support Dr. Bannach's restrictive finding. But neither does this evidence support Dr. Lilly's estimate that Plaintiffcould sit or stand for 6 hours or walk for 4 hours in an 8-how workday. At most, the evidence shows that Plaintifftravels by plane occasionally, walks 5-10 minutes at atime on campus (AR 105), stands 20-30 minutes before needing to sit and rest (id.), and can walk less than a mile before needing to rest (AR 436). This evidence does not support the ALJ's RFC finding as to standing and walking, and the ALJ should revisit this analysis on remand. Separately, the ALJ rejected the portion of Dr. Bannach's opinion finding likely be absent for two or more days per month as oospeculative" and oonot Plaintiffwould supported by the longitudinal evidence of record." (AR 66.) The ALJ did so without explaining what alternative medical source in the record supported this finding. Because the VE testified that missing more than one day of work per month would be work-preclusive, the ALJ's failure to make a finding in this regard is not har'rnless error. On remand, the ALJ should conduct a new RFC analysis consistent with the fisdings in this decision. 39 Case 5:21-cv-00014-gwc Document 15 Filed 04/26/22 Page 40 of 40 Conclusion For the reasons stated above, the court GRANTS in part Plaintiffs motion for an order reversing the decision of the Commissioner (Doc. 12), DEMES the Commissioner's motion to affirrn @oc. 13), and REMANDS the case for frrther proceedings consistent with this opinion. SO ORDERED. ,l Dated at Rutland, in the District of Vermont ,mffiVof April, 2022. Geoffrey W. Crawford, 40

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