Barnes v. Colvin

Filing 21

Ruling. For the reasons set forth in the attached Ruling, plaintiff's 14 MOTION to Reverse the Decision of the Commissioner is GRANTED, to the extent plaintiff seeks a remand for further administrative proceedings, and defendant's 15 MOTION to Affirm the Decision of the Commissioner is DENIED. Signed by Judge Sarah A. L. Merriam on 3/9/2018. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
ANN BARNES
:
:
v.
:
:
NANCY A. BERRYHILL, ACTING
:
COMMISSIONER, SOCIAL SECURITY :
ADMINISTRATION
:
:
------------------------------x

Civ. No. 3:16CV01013(SALM)

March 9, 2018

RULING ON CROSS MOTIONS
Plaintiff Ann Barnes (“plaintiff”), brings this appeal
under §205(g) of the Social Security Act (the “Act”), as
amended, 42 U.S.C. §405(g), seeking review of a final decision
by the Commissioner of the Social Security Administration (the
“Commissioner” or “defendant”) denying her application for
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under the Act. Plaintiff has moved to reverse the
decision of the Commissioner, or in the alternative, for remand.
[Doc. #14]. Defendant has filed a cross-motion for an order
affirming the decision of the Commissioner. [Doc. #15].
For the reasons set forth below, defendant’s Motion for an
Order Affirming the Decision of the Commissioner [Doc. #15] is
DENIED. Plaintiff’s Motion for Order Reversing the Decision of
the Commissioner or in the Alternative Motion for Remand for a

1

Hearing [Doc. #14] is GRANTED, to the extent plaintiff seeks a
remand for further administrative proceedings.
I.

PROCEDURAL HISTORY
Plaintiff filed concurrent applications for DIB and SSI on

June 14, 2013, alleging disability beginning May 1, 2012. See
Certified Transcript of the Administrative Record, compiled on
August 19, 2016, (hereinafter “Tr.”) 212-26. Plaintiff’s
application was denied initially on September 11, 2013, see Tr.
127-35, and upon reconsideration on November 14, 2013. See Tr.
137-44.
On October 6, 2014, plaintiff, accompanied and represented
by attorney Olia Ylener, appeared and testified at a hearing
before Administrative Law Judge (“ALJ”) Lisa Groenveld-Meijer.
See Tr. 36-82. Vocational Expert (“VE”) Faith A. Johnson also
appeared and testified by telephone at this hearing. See Tr. 7381, 195-96. On November 5, 2014, the ALJ issued an unfavorable
decision. See Tr. 15-35. On May 6, 2016, the Appeals Council
denied plaintiff’s request for review, thereby making the ALJ’s
November 5, 2014, decision the final decision of the
Commissioner. See Tr. 1-4. The case is now ripe for review under
42 U.S.C. §405(g).
Plaintiff filed this timely action for review and now moves
to reverse the Commissioner’s decision or for remand. [Doc.
#14]. On appeal, plaintiff asserts that:
2

1.

The ALJ failed to properly weigh the opinion evidence;

2.

The ALJ erred in evaluating plaintiff’s pain;

3.

The ALJ failed to properly determine plaintiff’s
Residual Functional Capacity (“RFC”); and

4.

The ALJ erred at step five of the sequential
evaluation.

See generally Doc. #14-1 at 12-20. As set forth below, the Court
concludes that the ALJ’s RFC determination is not supported by
substantial evidence and that the ALJ erred in her consideration
of plaintiff’s intellectual disability.
II.

STANDARD OF REVIEW
The review of a Social Security disability determination

involves two levels of inquiry. First, the Court must decide
whether the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide whether
the determination is supported by substantial evidence. See
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation
omitted). Substantial evidence is evidence that a reasonable
mind would accept as adequate to support a conclusion; it is
more than a “mere scintilla.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). The reviewing court’s responsibility is
to ensure that a claim has been fairly evaluated by the ALJ. See

3

Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983) (citation
omitted).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.” (citing Tejada v. Apfel, 167 F.3d 770, 773-74 (2d
Cir. 1999))). “Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made
according to the correct legal principles.” Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(alterations added) (citing Treadwell v. Schweiker, 698 F.2d
137, 142 (2d Cir. 1983)). The ALJ is free to accept or reject
4

the testimony of any witness, but a “finding that the witness is
not credible must nevertheless be set forth with sufficient
specificity to permit intelligible plenary review of the
record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 26061 (2d Cir. 1988) (citing Carroll v. Sec. Health and Human
Servs., 705 F.2d 638, 643 (2d Cir. 1983)). “Moreover, when a
finding is potentially dispositive on the issue of disability,
there must be enough discussion to enable a reviewing court to
determine whether substantial evidence exists to support that
finding.” Johnston v. Colvin, No. 3:13CV00073(JCH), 2014 WL
1304715, at *6 (D. Conn. Mar. 31, 2014) (citing Peoples v.
Shalala, No. 92CV4113, 1994 WL 621922, at *4 (N.D. Ill. Nov. 4,
1994)).
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct
legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507
(2d Cir. 2009)).

5

III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
42 U.S.C. §423(a)(1).
To be considered disabled under the Act and therefore
entitled to benefits, plaintiff must demonstrate that she is
unable to work after a date specified “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). Such impairment or impairments
must be “of such severity that [s]he is not only unable to do
[her] previous work but cannot, considering [her] age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.”
42 U.S.C. §423(d)(2)(A)(alterations added); 20 C.F.R.
§§404.1520(c), 416.920(c) (requiring that the impairment
“significantly limit[] ... physical or mental ability to do
basic work activities” to be considered “severe” (alterations
added)).1

Some of the Regulations cited in this decision were amended,
effective March 27, 2017. Throughout this decision, and unless
otherwise specifically noted, the Court applies and references
the versions of those Regulations that were in effect at the
time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x
801, 805 n.2 (2d Cir. 2012) (applying and referencing version of
1

6

There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §§404.1520, 416.920. In the
Second Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary next considers whether the
claimant has a “severe impairment” which significantly
limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment,
the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed
in Appendix 1 of the regulations. If the claimant has
such an impairment, the Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
steps:
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
Secretary then determines whether there is other work
which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
regulation in effect when ALJ adjudicated plaintiff’s claim);
see also Alvarez v. Comm’r of Soc. Sec., No. 14CV3542(MKB), 2015
WL 5657389, at *11 n.26 (E.D.N.Y. Sept. 23, 2015) (“[T]he Court
considers the ALJ’s decision in light of the regulation in
effect at the time of the decision.” (citing Lowry, 474 F. App’x
at 805 n.2)).
7

Id.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given [her] residual functional capacity.” Gonzalez ex rel.
Guzman v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243
(2d Cir. 2010) (alteration added) (citing 68 Fed. Reg. 51155
(Aug. 26, 2003)). The RFC is what a person is still capable of
doing despite limitations resulting from her physical and mental
impairments. See 20 C.F.R. §§404.1545(a)(1), 416.945(a)(1).
“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant’s educational background, age, and work experience.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).
“[E]ligibility for benefits is to be determined in light of the
fact that the Social Security Act is a remedial statute to be
broadly construed and liberally applied.” Id. (internal
quotation marks omitted).

8

IV.

THE ALJ’S DECISION
Following the above-described five-step evaluation process,

the ALJ concluded that plaintiff was not disabled under the Act.
See Tr. 31. At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity since her alleged onset
date of May 1, 2012. See Tr. 21. At step two, the ALJ found that
plaintiff had the severe impairments of: lower back pain/back
disorder secondary to morbid obesity; phencyclidine dependence
in remission; rule out bipolar disorder; and a mixed personality
disorder with antisocial and organic features. See id. The ALJ
also found that plaintiff suffered from the following non-severe
impairments: migraine headaches; gastrointestinal reflux
disease; eczema; gout; kidney stones; and vision defects. See
Tr. 21-22. The ALJ found insufficient evidence in the record to
support a diagnosis of an intellectual disability. See Tr. 21.
At step three, the ALJ found that plaintiff’s impairments,
either alone or in combination, did not meet or medically equal
the severity of any of the listed impairments in 20 C.F.R. Pt.
404, Subpt. P, App. 1. See Tr. 22-23. The ALJ specifically
considered Listings 1.04 (disorders of the spine), 12.04
(affective disorders), and 12.08 (personality disorders). See
id.
Before moving on to step four, the ALJ found plaintiff had
the RFC
9

to perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) except she would be limited to simple,
routine, and repetitive work with short instructions and
training by demonstration; she can tolerate few changes
day-to-day. She can work in an environment that does not
include fast-paced production requirements, like timed
work or work with strict quotas; she can perform work
that does not require direct contact with the general
public or tandem tasks. In addition to regular breaks,
she may need to take additional brief breaks of
approximately five minutes per hour.
Tr. 23-24. At step four, the ALJ found plaintiff had no past
relevant work. See Tr. 29. At step five, after considering
plaintiff’s age, education, work experience and RFC, the ALJ
found that jobs existed in significant numbers in the national
economy that plaintiff could perform. See Tr. 29-30.
V.

DISCUSSION
Plaintiff asserts several arguments in support of reversal

or remand. For the reasons set forth below, the Court finds that
the ALJ’s RFC determination is not supported by substantial
evidence and that the ALJ erred in her consideration of
plaintiff’s intellectual disability.
A. RFC Determination
Plaintiff contends that the ALJ failed to properly
determine her RFC because the ALJ did not adequately account for
plaintiff’s obesity, physical impairments, social limitations,
and medication side effects. See Doc. #14-1 at 15-18. Defendant
responds that the ALJ’s determination is supported by
substantial evidence of record. See Doc. #15-1 at 14-16.
10

A claimant’s RFC is “the most [she] can still do despite
[her] limitations.” 20 C.F.R. §§404.1545(a)(1), 416.945(a)(1).
Although “[t]he RFC determination is reserved for the
commissioner ... an ALJ’s RFC assessment is a medical
determination that must be based on probative evidence of
record. ... Accordingly, an ALJ may not substitute h[er] own
judgment for competent medical opinion.” Walker v. Astrue, No.
1:08CV00828(RJA)(JJM), 2010 WL 2629832, at *6 (W.D.N.Y. June 11,
2010) (internal citations and quotation marks omitted) (quoting
Lewis v. Comm’r of Soc. Sec., No. 6:00CV1225(GLS), 2005 WL
1899399, at *3 (N.D.N.Y. Aug. 2, 2005)). In that regard,
The record must have more than mere medical findings:
[A]n ALJ is not qualified to assess a claimant’s RFC on
the basis of bare medical findings, and as a result an
ALJ’s determination of RFC without a medical advisor’s
assessment is not supported by substantial evidence.
Where the “medical findings in the record merely
diagnose [the] claimant’s exertional impairments and do
not relate these diagnoses to specific residual
functional capabilities such as those set out in 20
C.F.R. §404.1567(a) ... [the Commissioner may not] make
the connection himself.”
Dennis v. Colvin, 195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016)
(quoting Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912
(N.D. Ohio 2008)); see also Palascak v. Colvin, No.
1:11CV0592(MAT), 2014 WL 1920510, at *8 (W.D.N.Y. May 14, 2014)
(ALJs “are unqualified to assess residual functional capacity on
the basis of bare medical findings in instances when there is a
relatively high degree of impairment.” (collecting cases)). By
11

contrast, “where the medical evidence shows relatively little
physical impairment, an ALJ permissibly can render a common
sense judgment about functional capacity even without a
physician’s assessment[.]” Walker, 2010 WL 2629832, at *7
(quoting Manso-Pizarro v. Sec. of Health and Human Servs., 76
F.3d 15, 17 (1st Cir. 1996)).
Here, the ALJ determined plaintiff could “perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b).” Tr. 23.
Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable
of performing a full or wide range of light work, you
must have the ability to do substantially all of these
activities.
20 C.F.R. §§404.1567(b), 416.967(b). Social Security Ruling
(“SSR”) 83-10 further explains:
Since frequent lifting or carrying requires being on
one’s feet up to two-thirds of a workday, the full range
of light work requires standing or walking, off and on,
for a total of approximately 6 hours of an 8-hour
workday. Sitting may occur intermittently during the
remaining time. The lifting requirement for the majority
of light jobs can be accomplished with occasional,
rather than frequent, stooping. Many unskilled light
jobs are performed primarily in one location, with the
ability to stand being more critical than the ability to
walk.
SSR 83-10, 1983 WL 31251 (S.S.A. 1983). The ALJ found plaintiff
limited to light work “because of intermittent back pain and

12

obesity[,]” but determined “further erosion [of the occupational
base] is not warranted by the lack of objective testing or
documentation, the limited treatment methods, and the claimant’s
consistently mild to moderate findings on objective
examination.” Tr. 26. Supporting this conclusion, the ALJ relied
on the opinions of State examiner Maria Lorenzo, M.D.,
concurring with Dr. Lorenzo’s “lack of finding of disability or
significant functional limitations[.]” Tr. 28; see also Tr. 98109 (Disability Determination Explanations containing Dr.
Lorenzo’s opinions). The ALJ afforded Dr. Lorenzo’s opinions
“some weight.” Tr. 28. The ALJ further assigned “some weight” to
the opinion of consultative examiner Dr. Goccia, reasoning that
“evidence submitted after [his August 2013 assessment] supports
a finding that the claimant’s physical impairments meet the
minimal threshold for severity in combination with her other
impairments.” Id.; see also Tr. 274-77 (Dr. Goccia’s
Consultative Examination). Notably, neither the opinion of Dr.
Goccia, nor the opinions of Dr. Lorenzo, provide any functionby-function assessment of plaintiff’s physical capabilities.
The ALJ’s physical RFC finding is not supported by
substantial evidence. The ALJ found that plaintiff’s physical
impairments were relatively mild; substantial evidence of record
does not support this determination, particularly considering

13

plaintiff’s impairments in combination, including her obesity,
edema, and back pain.
Our case law is plain that “the combined effect of a
claimant’s impairments must be considered in determining
disability; the [Commissioner] must evaluate their
combined impact on a claimant’s ability to work,
regardless of whether every impairment is severe.” Dixon
v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995)[.]
Burgin v. Astrue, 348 F. App’x 646, 647 (2d Cir. 2009).
Plaintiff’s edema, for which she was medicated, is welldocumented throughout the record. See Tr. 371, 374-75, 376, 378,
424, 442. Although the ALJ acknowledged that in January and
March 2014, plaintiff presented with “some edema of the legs[,]”
Tr. 26, it does not appear that the ALJ considered the impact of
plaintiff’s edema in combination with her other physical
impairments. Plaintiff testified about the edema’s effect on her
functional abilities, and stated that she has problems with her
feet because they swell up from sitting, and that this makes
standing difficult. See Tr. 68. Plaintiff also testified that as
a result of her swollen feet, i.e., the edema, she cannot wear
closed shoes and wears clogs or shoes that slip-on. See Tr. 6869. Considering plaintiff’s edema in combination with
plaintiff’s obesity and back pain, the ALJ’s conclusion that
plaintiff is capable of light work, which “requires being on
one’s feet up to two-thirds of a workday ... [and] standing or
walking, off and on, for a total of approximately 6 hours of an

14

8-hour workday[,]” SSR 83-10, 1983 WL 31251, is not supported by
substantial evidence. See SSR 02-1P, 2000 WL 34686281 (S.S.A.
Sept. 12, 2002) (“The combined effects of obesity with other
impairments may be greater than might be expected without
obesity.”).
Further, there is no medical source opinion supporting the
ALJ’s finding that plaintiff can perform light work. In that
regard, the ALJ should have obtained a medical source statement
from which to assess plaintiff’s physical RFC. As noted above,
plaintiff’s physical impairments, particularly when considered
in combination, are not such that the ALJ could render a common
sense assessment concerning her physical capabilities.
Additionally, there is not sufficient medical evidence of record
from which the ALJ may draw a reasonable conclusion. The ALJ
acknowledged as much in her decision. See Tr. 25 (“As a threshold
matter the undersigned notes that the claimant has very limited
treatment history for her allegedly disabling physical pain,
with very limited records over the more than two years under
review.” (emphasis added)).2 Where “the record contains

In making her determination, the ALJ relied on plaintiff’s
“limited treatment history.” See, e.g., Tr. 25, 26. However, the
ALJ did not consider any explanation for plaintiff’s limited
treatment history contained in the record, including:
plaintiff’s homelessness, see Tr. 47; lack of insurance, see Tr.
288, 333; and borderline intellectual functioning, see Tr. 30726. “[A]n ALJ must not draw an adverse inference from a
claimant’s failure to seek or pursue treatment ‘without first
2

15

sufficient evidence from which an ALJ can assess claimant’s
residual functional capacity, a medical source statement or
formal medical opinion is not necessarily required.” Monroe v.
Comm’r of Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017) (quotation
marks and citations omitted); see also Tankisi v. Comm’r of Soc.
Sec., 521 F. App’x 29, 34 (2d Cir. 2013) (“[R]emand is not
always required when an ALJ fails in his duty to request
opinions, particularly where ... the record contains sufficient
evidence from which an ALJ can assess the petitioner’s residual
functional capacity.”). Here, however, there are limited
treatment records from which to assess plaintiff’s physical
functional capacity. Accordingly, the ALJ should have obtained a
medical source statement from plaintiff’s treating physician3 or
a current consultative examination4 which provided a function-byfunction assessment of plaintiff’s physical abilities.

considering any explanations that the individual may provide, or
other information in the case record, that may explain
infrequent or irregular medical visits or failure to seek
medical treatment.’” Schlichting v. Astrue, 11 F. Supp. 3d 190,
207 (N.D.N.Y. 2012) (quoting SSR 96-7p, 1996 WL 374186 (S.S.A.
July 2, 1996)); see also Campbell v. Astrue, 596 F. Supp. 2d
446, 454 (D. Conn. 2009). Here, it does not appear that the ALJ
adequately considered information in the record that might
explain plaintiff’s “limited treatment history.”
Plaintiff testified that she has a “new” “main doctor” at the
Bridgeport Hospital clinic. See Tr. 52.
3

The ALJ discounted the findings of Consultative Examiner Dr.
Goccia because of evidence submitted after his examination. See
Tr. 28. This suggests that the ALJ should have obtained an
4

16

The ALJ’s RFC determination as to plaintiff’s social
functioning also is not supported by substantial evidence. The
ALJ found that plaintiff “can perform work that does not require
direct contact with the general public or tandem tasks.” Tr. 24.
In support of this finding, the ALJ did not rely on any specific
medical opinion. The ALJ did consider the opinion of Dr. Liane
Pioli, but the ALJ afforded “lesser weight” to the portion of
Dr. Pioli’s opinion addressing plaintiff’s social deficits
because it “fail[ed] to provide a statement of the maximum the
claimant could do in spite of her alleged impairments[.]” Tr.
28-29. This leaves no medical opinion regarding plaintiff’s
social functioning on which the ALJ placed any significant
weight. It thus appears that the ALJ improperly relied on her
lay opinion in assessing plaintiff’s social limitations.
Additionally, although the ALJ limited plaintiff from
interacting with the public and from tandem tasks, the RFC
finding does not otherwise account for plaintiff’s general
interaction with coworkers. The record contains substantial
evidence which suggests that plaintiff’s interaction with
coworkers should be generally limited. See, e.g., Tr. 62-63, 6566 (plaintiff’s testimony that she had previously been fired
from a job for arguing with co-workers and had a history of

updated consultative examination of plaintiff’s physical
capabilities.
17

arguing with her housemates); Tr. 310 (plaintiff’s reported
felony conviction for assault); Tr. 309-11, 324-26 (Dr. Pioli’s
assessment of plaintiff’s social functioning). The ALJ’s RFC
finding is particularly troublesome in light of Dr. Pioli’s
conclusion that “it is important to see how [plaintiff] gets
along with co-workers and takes supervision without becoming
defensive.” Tr. 326. Thus, the Court finds that the ALJ’s RFC
determination as to plaintiff’s social functioning is not
supported by substantial evidence.
Further, it was not permissible for the ALJ to render a
common sense assessment about plaintiff’s social functioning,
particularly in light of her finding that plaintiff suffers from
the severe impairment of “mixed personality disorder with
antisocial organic features.” Tr. 21. In that regard, the ALJ
should have obtained a function-by-function assessment of
plaintiff’s social abilities from Dr. Pioli or a consultative
examiner. Accordingly, remand is appropriate for further
development of the record concerning plaintiff’s social
abilities.
B.

Consideration of Plaintiff’s Intellectual Disability

Although not specifically raised by plaintiff, the Court
finds that the ALJ erred in her consideration of plaintiff’s
intellectual disability.

18

It is undisputed that plaintiff has a full-scale IQ of 67.
See Tr. 307. Although the ALJ considered plaintiff’s claimed
intellectual disability at step two, she specifically considered
this condition only in relation to Listing 12.05(C).5 See Tr. 21.
The ALJ found:
[N]othing in the record establishes a baseline of
functioning prior to age 22, which is required to meet
listing 12.05. As such, there is insufficient support
for a diagnosis of intellectual disability. The
claimant’s specific noted deficits upon examination,
however, were considered in the residual functional
capacity below.
Tr. 21. The ALJ’s decision disregards the law in this Circuit
assuming, “in the absence of evidence indicating otherwise, that
claimants will experience a ‘fairly constant IQ throughout their
lives.’” Talavera, 697 F.3d at 152 (quoting Hodges v. Barnhart,
276 F.3d 1265, 1268 (11th Cir. 2001)). The Second Circuit has
recognized that “‘there are many possible reasons why an adult
would not have obtained an IQ test early in life,’ so requiring
a contemporaneous qualifying test score would present
intractable problems of proof in many cases of legitimate

“Under SSA regulations, a petitioner suffers from [intellectual
disability] if she exhibits: Significantly subaverage general
intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment before
age 22.” Talavera, 697 F.3d at 151-52 (2d Cir. 2012) (internal
quotation marks omitted) (quoting Listing 12.05).
5

19

intellectual disability.” Id. (quoting Luckey v. U.S. Dep’t of
Health & Human Servs., 890 F.2d 666, 668 (4th Cir. 1989)).
Although there is evidence of plaintiff’s “long history of
PCP dependence[,]” Tr. 309, there is also circumstantial
evidence suggesting that plaintiff had deficits in adaptive
functioning prior to the age of 22, which were independent of
her PCP dependence. “Courts have found circumstantial evidence
such as a claimant attending special education classes, dropping
out of school before graduation, or exhibiting difficulties in
reading, writing or math sufficient to infer the claimant had
deficits in adaptive functioning prior to age 22 sufficient to
meet the requirement of §12.05.” Mitchell v. Colvin, No.
14CV00418(MAT)(LGF), 2016 WL 8674509, at *8 (W.D.N.Y. June 10,
2016) (collecting cases), report and recommendation
adopted, 2016 WL 6775300 (Nov. 15, 2016). Here, plaintiff
attended special education classes and dropped out of school in
the eighth or ninth grade. See Tr. 242, 309-310. Dr. Pioli’s
testing found that plaintiff’s “ability to express her ideas in
writing was in the low end of the Borderline range and very weak
(below the 2nd grade level)[,]” and that plaintiff is
“‘functionally illiterate’ in both Reading and Writing.” Tr.
321, 323; see also Tr. 49, 72 (plaintiff’s testimony about her
difficulties with reading and writing). Dr. Pioli also noted
that although “[i]t is probable that [plaintiff’s] long-term PCP
20

use has caused at least some lowering of her cognitive
function[, plaintiff’s] scores on this evaluation suggest that
any premorbid level of functioning was most likely in the Low
Average range at best.” Tr. 322. In conclusion, Dr. Pioli found
that plaintiff’s “skills ranged from Intellectually Disabled to
Low Average. Her functioning is fairly consistent, but may be
lowered slightly due to her drug abuse.” Tr. 325 (emphasis
added). This suggests that plaintiff’s level of intellectual
functioning was significantly impaired prior to the onset of her
PCP dependence. Thus, circumstantial evidence supports an
inference that plaintiff suffered from an intellectual
disability prior to age 22. See, e.g., Mitchell, 2016 WL
8674509, at *8 (“In this case, Plaintiff, quit high school after
ninth grade ..., had been enrolled in special education classes
while attending school ..., was evaluated with reading at a
second grade level ..., and exhibited serious difficulties in
writing and arithmetic. ... Accordingly, substantial evidence
that Plaintiff exhibited significantly sub-average general
intellectual functioning manifested before Plaintiff turned 22
years old[.]”); see also Labarge v. Colvin, 7:15CV0732(GTS),
2016 WL 5408160, at *8-9 (N.D.N.Y. Sept. 26, 2016). Accordingly,
the Court finds remand appropriate to determine whether
plaintiff’s intellectual disability “manifested during [her]
developmental period” or is the consequence of her PCP
21

dependence after the age of 22. Brown v. Sec’y of Health & Human
Servs., 948 F.2d 268, 271 (6th Cir. 1991) (Remand was
appropriate to determine whether claimant’s intellectual
disability “manifested during claimant’s developmental period or
rather is a partial consequence of claimant’s history of heavy
alcohol use after the age of twenty-two.”).
In light of the above findings, the Court need not reach
the merits of plaintiff’s remaining arguments. Therefore, this
matter is remanded to the Commissioner for further
administrative proceedings consistent with this Ruling. On
remand the Commissioner shall address the other claims of error
not discussed herein.
VI.

CONCLUSION
For the reasons set forth herein, defendant’s Motion for an

Order Affirming the Decision of the Commissioner [Doc. #15] is
DENIED. Plaintiff’s Motion for Order reversing the Decision of
the Commissioner or in the Alternative Motion for Remand for a
Hearing [Doc. #14] is GRANTED, to the extent plaintiff seeks a
remand for an administrative hearing.
The Court offers no opinion on whether the ALJ should or
will find plaintiff disabled on remand. Rather the Court finds
remand is appropriate to for further administrative proceedings
consistent with this Ruling.

22

SO ORDERED at New Haven, Connecticut, this 9th day of March,
2018.
/s/
_________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

23