Horn v. Commissioner of Social Security

Filing 30

MEMORANDUM & ORDER: The Commissioner's 23 Motion for Judgment on the Pleadings is DENIED, Plaintiff's 25 Cross Motion for Judgment on the Pleadings is GRANTED IN PART, and the case is REMANDED to the SSA for re-evaluation of Plaintiff's credibility in accordance with SSA regulations and in light of the entire record. So Ordered by Judge Nicholas G. Garaufis on 8/7/2015. (fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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ZANATHIOUS HORN,

Plaintiff,

MEMORANDUM & ORDER
-against-

13-CV-1218 (NGG)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Zanathious Hom brings this action, pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the Social Security Administration's (the "SSA") decision that he is not
disabled and therefore does not qualify for Social Security Disability Insurance Benefits
("DIB"). Plaintiff argues that (1) the case should be remanded in light of certain new evidence,
and (2) the ALJ did not follow the proper legal analysis in assessing the credibility of Plaintiffs
statements regarding his symptoms. Both Plaintiff and Defendant, the Commissioner of Social
Security, have filed motions for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). (Def.'s Not. of Mot. (Dkt. 23); Pl.'s Not. of Mot. (Dkt. 25).) For the reasons
set forth below, the Commissioner's motion is DENIED, Plaintiffs cross-motion is GRANTED
IN PART, and this case is REMANDED to the SSA for further proceedings.

I.

BACKGROUND
Plaintiff was born on October 25, 1962. (See Administrative R. ("R.") (Dkt. 9) at 17.)

He has at least a high school education. (Id.) He last worked as a chef with Morrison's Health
Care ("Morrison's"), cooking for physicians at a hospital from January 2007 to May 2010. (Id.
at 153, 166.) This position involved planning the menu, cooking the food, and setting up the
dining room. (Id. at 32.) In this capacity, Plaintiff stood or walked throughout the day and
1

frequently handled large objects weighing over fifty pounds. (Id. at 154, 167.) From 2000
to 2007 Plaintiff worked in various food service positions and as a day laborer; each position
required him to stand and walk throughout the day and to lift heavy objects weighing over fifty
pounds. (Id. at 166, 168-72.)
In a Work History Report dated August 7, 2010, Plaintiff wrote that after years of
working, he was experiencing pain in his knees and fingers related to arthritis, and that his
mental state was deteriorating as he grew older. (Id. at 173.) Plaintiff further indicated that he
had difficulty getting out of bed and could not keep a job for long periods of time. (Id.) In
May 2010, Plaintiff was terminated from his job with Morrison's for lack of performance, and
went on to collect unemployment until April 2012. (Id. at 31-32, 152, 222.) During that time, he
was also attending college and working toward an associate' s degree in event planning. (Id.
at 30-31.) At a hearing before the SSA, Plaintiff testified that one of the main reasons he stopped
working at Morrison's was because of swelling in his hands and pain in his left leg. (Id. at 45.)
In an August 2, 2010, Disability Report, Plaintiff claimed that he was disabled due to
bipolar disorder, manic depression, bronchitis, and "left leg." (Id. at 151-52.) He reported that
as a result of these conditions, he stopped working on May 15, 2010. (Id. at 152-53.) Plaintiff
listed Albuterol for the treatment of asthma as the only medication he was taking at the time. (Id.
at 154.)

A.

Medical Evidence

In reviewing Plaintiffs proffered medical evidence, the court separately discusses:
(1) evidence of Plaintiffs condition before his alleged disability onset date of May 15, 2010;
(2) evidence of Plaintiffs condition between May 15, 2010, and the date of his hearing before
the SSA on October 4, 2011; and (3) evidence of Plaintiffs condition after October 4, 2011.

2

1.

Prior to Plaintiffs Alleged Onset Date

On July 2, 2002, Plaintiff underwent a procedure to repair the Achilles tendon in his left
ankle at the University of South Alabama Medical Center ("USAMC"). (See id. at 230-35.) In
the Operative Report, Dr. Frederick Meyer noted that the procedure was successful and that
Plaintiff was in satisfactory condition. (Id. at 233.)
On October 5, 2002, Plaintiff was admitted to the USAMC emergency room following a
drug overdose. (Id. at 237-38.) Plaintiff was stabilized and then transferred to the Mobile
Infirmary Medical Center psychiatric unit. (Id. at 23 7.) Plaintiff reported that he was taking
Tylenol #3 for jaw pain and "partying" by consuming alcohol and using cocaine. (@
Plaintiffs mother had died eight weeks earlier. (Id.) On the night of the incident, Plaintiff had
consumed his "normal level" of cocaine and alcohol in addition to the Tylenol for jaw pain. (Id.
at 241.) He was later discovered by his next door neighbor to be somewhat obtunded, and was
subsequently taken to USAMC. (Id.) Plaintiff reported that he had struggled with depressive
symptoms over several years, with a gradual increase in recent months. (Id.) Plaintiff further
disclosed that he had taken Prozac and Zoloft in the past, but that he discontinued their use due
to the side effects of impotence and gastrointestinal disease. (Id. at 241-42.) Plaintiff admitted
to recurring alcohol and cocaine abuse, and reported that he had never attended rehabilitation.
(Id. at 241.) While it was originally thought that Plaintiffs overdose represented a suicide
attempt, Plaintiff explained the following day that it was an accident. (Id. at 242.)
A mental status exam revealed Plaintiff to be alert, oriented, and cooperative despite
being acutely disheveled. (Id. at 243.) Plaintiffs thought process was linear without looseness
of association or flight of ideas. (@ His mood was depressed, and Plaintiff denied any
hallucinations. (Id.) On Axis I, Plaintiff was diagnosed with major depression, recurrent,
moderate, as well as cocaine abuse. (Id.) On Axis V, Plaintiffs Global Assessment of
3

Functioning ("GAF") was 45. (Id. at 244.) Plaintiff was prescribed Remeron. (Id.) Upon
discharge, Plaintiff's GAF was 65. (Id. at 239.) Following discharge, Plaintiff was to follow up
with the Mobile Mental Health Center ("MMHC") and a psychologist. (IQ]
In April 2005, Plaintiff began receiving mental health treatment at MMHC, now affiliated
with AltaPointe Health Systems, Inc. ("AltaPointe"). (See id. at 248-53.) Plaintiff was admitted
on April 4, 2005, when his Axis I diagnosis was bipolar I disorder, with the most recent episode
mixed, severe. (Id. at 252.) Plaintiff's GAF was recorded as 55. (IQ] On May 25, 2005,
Plaintiff was discharged from treatment due to lack of contact. (Id. at 249.)
On September 12, 2005, Plaintiff was treated at USAMC in connection with an upper
respiratory infection. (Id. at 254-56.)
Plaintiff was seen for reassessment at AltaPointe on April 3, 2006, when he reported
experiencing difficulty getting out of bed and functioning. (Id. at 250.) Plaintiff further stated
that he was encountering difficulty at work and experiencing suicidal ideation due to stress. (@
After this visit, Plaintiff was to continue treatment for depressive symptoms. (See kb.) On
December 6, 2006, however, Plaintiff was discharged and his chart was closed because he had
not been seen in 90 days, and was not consistently compliant with treatment. (Id. at 248.) Beth
Blair, a clinician with AltaPointe, recommended substance abuse treatment for alcohol
dependence and other drug use. (Id.)
On June 10, 2008, Plaintiff was treated at USAMC for left-sided abdominal pain that
persisted for one month, with recent nausea and vomiting. (Id. at 257-59.) Plaintiff also
complained of having dark stools for two weeks and difficulty urinating for two to three months.
(Id. at 257.) Plaintiff's outpatient record indicated that he was a heavy drinker. (ML.) Plaintiff
was prescribed Ranitidine and Promethazine. (Id. at 259.) Plaintiff was further advised to seek

4

help for his drinking at Alcoholics Anonymous, and to follow up with a physician in two to three
days to have his stool rechecked for blood. (Id.)
On January 30, 2009, Plaintiff was evaluated by Jonathan Miller, M.D., at Diagnostic and
Medical Care. (Id. at 266.) Plaintiff explained his concern that he had been smoking since 1976
and had developed a chronic cough. (Id.) Dr. Miller noted that Plaintiff appeared "stable and
doing well." (Id.) Dr. Miller noted a history of tobacco use and asthma. (Id.) Plaintiff followed
up with Dr. Miller on April 20, 2009. (Id. at 264). Dr. Miller noted that chest x-rays displayed
some emphysematous changes, but Plaintiffs lungs were clear. (@ Upon Plaintiffs request,
he was prescribed Antabuse for alcohol use. (Id.) Plaintiff was treated by Dr. Miller again on
May 6, 2009, to follow up and address complaints of some sinusitis symptoms. (Id. at 262.) Dr.
Miller treated him for sinusitis, and noted that Plaintiff was doing much better with his alcohol
use after extensive counseling. (Id.)
2.

After May 15, 2010

On September 9, 2010, Plaintiff was evaluated by Keith Varden, M.D., of Diagnostic and
Medical Care. (Id. at 275-76.) Plaintiffs chief complaint was disability described as secondary
to bipolar disorder. (Id. at 275.) Plaintiff also complained of knee pain, osteoarthritis and pain
in the hands, and mild asthma. (Id.) Dr. Varden diagnosed Plaintiff with a history of bipolar
disorder, osteoarthritis and althralgias and mild asthma. (Id. at 275-76.) Dr. Varden further
observed that pending psychiatric evaluation, there was no evidence for permanent disability
related to these conditions. (Id. at 27 5.)
On September 23, 2010, in connection with Plaintiffs application for disability insurance
benefits, his case was evaluated by E. Russell March, Jr., M.D. (Id. at 277.) Based on the
medical evidence and the presentation of the Plaintiff, Dr. March concluded that Plaintiffs
impairments were not severe. (Id.)
5

Also in connection with Plaintiff's application, on September 23, 2010, John W. Davis,
Ph.D., conducted a consultative psychiatric examination of Plaintiff. (See id. at 281-85.) Dr.
Davis observed that Plaintiff's general appearance, dress, and behavior were consistent with his
age and the occasion, and that there was nothing unusual about his gait, posture, mannerisms, or
hygiene. (Id. at 281.) Dr. Davis further noted that Plaintiff demonstrated a "good degree" of
self-sufficiency in his bathing, dressing, and feeding. (IQJ Plaintiff explained that he had
difficulty focusing, which alongside his temper and lack of desire to leave the house, prevented
him from holding a job. (Id.) Dr. Davis observed that Plaintiff demonstrated no abnormalities
interfering with communication.

iliL. at 282.)

Plaintiff also reflected normal mood and

expression. (Id.) Dr. Davis further observed that Plaintiff provided no indications of deficits in
his overall concentration or attention. (Id. at 283.) Plaintiff exhibited no loose associations,
tangential, or circumstantial thinking. (Id. at 284.) Further, Plaintiff displayed no feelings of
detachment from his environment. (Id.) Dr. Davis found Plaintiff's judgments and insights to be
fair, and estimated that Plaintiff was of average intelligence. (@
As a result of this evaluation, Dr. Davis diagnosed major depressive disorder. (IQJ Dr.
Davis opined _that Plaintiff manifested depressive symptoms such as loss of interest in activities,
sleep disorder, decreased energy, feelings of guilt or worthlessness, and difficulty concentrating
or thinking. (Id.) Dr. Davis found that Plaintiff's ability to understand and remember simple
instructions, carry out simple instructions, and make judgments on simple work-related decisions
was mildly impaired. (Id. at 285.) Dr. Davis further observed that Plaintiff's ability to
understand and remember complex instructions, carry out complex instructions, and make
judgments on complex work-related decisions was also mildly impaired. (Id.) Finally, Dr. Davis
determined that Plaintiff's abilities to interact with the public, interact appropriately with

6

supervisors and co-workers, respond appropriately to usual work situations and changes in
routine setting, were moderately impaired. (@
In further connection with Plaintiffs application, on October 12, 2010, Linda Duke,
Ph.D., reviewed his record and completed a Psychiatric Review Technique. (Id. at 286-99.) Dr.
Duke determined that Plaintiffs major depressive disorder did not meet the criteria of
section 12.04 of the Listing oflmpairments for affective disorders, see 20 C.F.R. § 404 Subpart
P, App. 1. (ML. at 289.) In rating Plaintiffs functional limitations with respect to the criteria in
paragraph B of section 12.04, Dr. Duke found that Plaintiff had mild restrictions with respect to
activities of daily living, and moderate restrictions with respect to maintaining social functioning
and maintaining concentration, persistence, or pace. (Id. at 296.) Dr. Duke found that Plaintiff
had no episodes of decompensation. (Id.)
Dr. Duke also appraised Plaintiffs mental residual functional capacity ("RFC"). (Id.
at 300-02.) Dr. Duke found that Plaintiff was not significantly limited in either his ability to
remember locations and work-like procedures, or his ability to understand and remember very
short and simple instructions. (Id. at 300.) Plaintiff was moderately limited, however, in his
ability to understand and remember detailed instructions. (Id.) With respect to sustained
concentration and persistence, Plaintiff was not significantly limited in his abilities to: carry out
very short and simple instructions; perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; sustain an ordinary routine without
special supervision; work in coordination with or proximity to others without being distracted by
them; and complete a normal workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number and length
ofrest periods. (Id. at 300-01.) Within the same category, Plaintiff was moderately limited in

7

his abilities to carry out detailed instructions, and maintain attention and concentration for an
extended period. (Id. at 300.)
As to social interaction, Dr. Duke concluded that Plaintiff was not significantly limited in
his abilities to: ask simple questions or request assistance; accept instructions and respond
appropriately to criticism from supervisors; get along with coworkers or peers without distracting
them or exhibiting behavioral extremes; and maintain socially appropriate behavior and adhere to
basic standards of neatness and cleanliness. (Id. at 301.) Plaintiff was moderately limited in his
ability to interact appropriately with the general public. (Id.) Plaintiff was not significantly
limited in any aspect of adaptation. (Id.) Overall, Dr. Duke concluded that Plaintiff had the RFC
to remember, understand, and carry out short, simple, one and two-step job instructions, and to
attend and concentrate for reasonable increments of time. (Id. at 302.) Additionally, Dr. Duke
determined that Plaintiffs contact with the public should be limited and casual in nature. (IQJ
In October 2010, Plaintiff sought treatment at AltaPointe. (See id. at 326-32.) Plaintiffs
diagnosis was Axis I: major depressive disorder, recurrent, mild; alcohol abuse, continuous;
cocaine abuse, episodic. (Id. at 322.) Plaintiffs Axis II diagnosis was narcissistic personality
disorder. (Id.) Plaintiffs GAF rating at the time was 60. (Id.) On October 28, 2010, an
outpatient treatment plan was initiated for Plaintiff, with the goals of Plaintiff receiving
disability, staying sober, increasing his social support system, and improving his anger
management. (Id. at 323-24.) Plaintiff was instructed to see a physician every three months for
assessment and treatment, and a nurse every three months for medication monitoring. (Id.
at 324.)
On November 4, 2010, however, Plaintiff missed his appointment with Kristin Stiggers, a
behavioral specialist at the facility. (Id. at 321.) Four days later, on November 8, 2010, Plaintiff

8

appeared at the USAMC emergency room complaining of right shoulder and arm pain, and
bilateral knee pain. (See id. at 304-10.) Plaintiff explained that the pain had started a year
earlier. CM:. at 304.) Plaintiff further advised that he had noticed a decreased appetite and
increased depression. (Id.) Plaintiff also complained of a mass in his right upper arm, and a
decrease in strength in his right leg. (Id.) Examination revealed decreased strength in his right
leg with otherwise normal range of motion and strength. (Id. at 305.) Evaluation also
demonstrated that Plaintiff had bilateral deformities of his fingers. (Id.) Plaintiff was found to
be alert and oriented. (Id.) Plaintiff was ultimately diagnosed with shoulder pain and prescribed
Naproxen. (Id. at 305-06.)
Plaintiff missed another appointment at AltaPointe on November 11, 2010. (Id. at 319.)
Plaintiff subsequently rescheduled his November 23, 2010, appointment, and was advised that if
he missed another appointment, his chart would be closed. (Id. at 316.)
On December 3, 2010, Plaintiff appeared at AltaPointe for an appointment with Farah
Khan, M.D. (See id. at 311-15.) Plaintiff informed Dr. Khan that he was experiencing stomach
aches, nervousness, chills and fever, and sleeplessness. (Id. at 312.) Plaintiff told Dr. Khan that
he was enrolled in four college courses, working towards a degree in food service at Faulkner
State College. (Id. at 312, 315.) Plaintiff reported that he failed one course, and received two
D's and one A in the others. (Id. at 312, 315.) Upon psychiatric evaluation, Dr. Khan found that
Plaintiffs behavior was cooperative, and that his mood was normal. (Id. at 313.) Plaintiff
reported no suicidal or homicidal thoughts, and had no abnormal perceptions. (Id.) Dr. Khan
further indicated that Plaintiffs memory was unimpaired and that his thoughts were logical and
coherent. (Id.) Dr. Khan found no impairment of concentration, and determined that Plaintiffs
insight and judgment were fair. (Id.) Plaintiff disclosed that he had been using alcohol at the

9

time, but had not used drugs in two months. (Id. at 314.) On Axis I, Dr. Khan diagnosed major
depressive disorder, recurrent, mild; intermittent explosive disorder; and cocaine and alcohol
abuse, continuous. (Id.) On Axis II, Dr. Khan diagnosed narcissistic personality disorder, and
on Axis III, Dr. Khan diagnosed arthritis. (Id.)
Additionally, Dr. Khan observed that Plaintiff appeared angry upon being informed that
his drug and alcohol use could pose a problem for his disability application. (Id. at 315.) When
prompted with questions about how he would feel about regular drug testing and abstaining from
cocaine and alcohol, Plaintiff insisted that his substance use was "not a problem." (Id.) Dr.
Khan also noted that Plaintiff seemed to contradict himself in response to his question about how
Plaintiff was able to be around people in food service, saying, "I can still turn it off and on when
I want to." (Id.) Dr. Khan prescribed Remeron. (Id.)
On December 6, 2010, Plaintiff appeared again at AltaPointe because he was unable to
obtain Remeron elsewhere. (Id. at 348.) Plaintiff informed staff member Evelyn Harbaugh,
R.N., that he was doing better since his last visit, but that he was still having difficulty sleeping.
(Id. at 348.) Harbaugh observed Plaintiffs behavior to be normal and cooperative. (Id.)
Plaintiff reported that he sometimes used alcohol when taking Loratab, and that he had used
cocaine about a week earlier, having failed to discoverit in a cigarette. (Id.) Plaintiff also
disclosed that he occasionally experienced auditory hallucinations, believing someone was
calling his name. (Id. at 349.) Plaintiff also experienced feelings of someone being in the room
with him. (Id.) His judgment and insight were poor, and his concentration was impaired. (IQ)
Plaintiff further reported having moderate anxiety. (Mh)
The same day, Plaintiff was seen by Magdi Tageldin, M.D., who found that he exhibited
normal behavior and was cooperative. (Id. at 350-51.) While Plaintiff displayed a sad mood and

10

a sad, blunted affect, Plaintiff did not report having any suicidal or homicidal thoughts. (Id.
at 350.) He again reported, however, having auditory hallucinations and thoughts of persecution.
(Id. at 351.) But his memory and concentration did not appear impaired, and his insight and
judgment appeared fair. (Id.) Dr. Tageldin found Plaintiff to have mild anxiety. (Id.) Dr.
Tageldin outlined a treatment plan, which included Plaintiff attending Alcoholics Anonymous
meetings, a twelve-step program, and support psychotherapy. (Id. at 350.) Dr. Tageldin
prescribed Wellbutrin, Depakote, and folic acid and thiamine replacement. (Id.) Plaintiff was
instructed to return in two weeks for follow-up. (Id.)
On December 21, 2010, Plaintiff returned to AltaPointe for a medication monitoring
appointment. (Id. at 344.) He was initially seen by Teresa Lanier, R.N. (Id. at 344.) Plaintiff
informed Lanier that he had not started Wellbutrin because he did not provide proof of income to
the pharmacy. (Id. at 344.) Lanier noted that Plaintiff was compliant with the other medications.
(Id.) Plaintiff reported that his mood was much calmer and denied feeling depressed. (Id.)
Plaintiff further informed Lanier that he had not had any anger outbursts, and was sleeping much
better. (Id.) Plaintiff's behavior was normal and cooperative, and his mood was normal with a
situationally appropriate affect. (IQ,) His appetite and sleep were good, and he did not have any
speech impairments. (Id.) He denied any self-injurious behavior, suicidal, or homicidal
thoughts. (Id.) Plaintiffs memory and concentration were unimpaired (id. at 344-45), and his
insight and judgment appeared good (.lib. at 345), but Plaintiff displayed mild anxiety. (Id.)
Plaintiff was seen again by Dr. Tageldin the same day. (See id. at 346-47.) Plaintiff
informed Dr. Tageldin that he was doing better and had been sleeping well.

ffih at 346.) He

reported no overt mood symptoms or psychosis. (Id.) Plaintiff discussed his legal issues
stemming from his mother's property in New York. (Id.) Plaintiff further informed Dr. Tageldin

11

that he had a pending court date for public intoxication, and reported that he felt busy. (Id.)
Plaintiff denied that he had used alcohol or cocaine recently. (Id.) Plaintiff's behavior and mood
were normal. (Id.) His appearance and affect were appropriate. (Id.) Plaintiff reported no
suicidal or homicidal thoughts. (Id.) Plaintiffs memory and concentration appeared
unimpaired. (Id. at 347.) His thoughts and perceptions were within the normal range. (Id.)
Plaintiffs insight and judgment were deemed fair. (Id.) No anxiety was noted. (Id.)
Although Plaintiff was scheduled to return six weeks later (llh at 346), he failed to appear
for two consecutive appointments on February 2 and 3, 2011, and missed a third rescheduled
appointment on April 12, 2011, because he did not have the co-pay (llh at 342-43). On
April 25, 2011, however, Plaintiff returned to AltaPointe, and was treated by Terri Mudge,
L.P.C. (See id. at 336-37.) He informed Mudge that since November 2010, he had been arrested
three times for violent behavior. (Id. at 336.) Plaintiff also stated that he had stopped using
drugs but still drank alcohol on occasion. (Id.) Plaintiff further indicated that he was becoming
frustrated trying to manage the estate of his late mother, to get on disability, and to deal with the
physical pain he experienced in his knee and ankle. (Id.) Plaintiff also seemed frustrated by the
fact that it was against AltaPointe's policy to complete paperwork in connection with his
upcoming disability hearing. (Id.)
Upon mental status examination, Plaintiff was found to be cooperative with normal but
hyperactive behavior. (Id.) Mudge noted that Plaintiff appeared irritable and angry.

(MJ

Plaintiffs affect was sad and blunted. (Id.) Plaintiff had poor appetite and sleep. (Id.) He once
again reported auditory hallucinations of people calling his name, and reported further
hallucinations of a visual nature.

(MJ Plaintiff also informed Mudge that he was paranoid often,

and believed that people might hurt him. (Id. at 3 37.) Plaintiffs memory and concentration

12

were impaired. (Id.) Mudge further noted that Plaintiff was experiencing racing thoughts,
obsession, and thoughts of persecution. (Id.) Plaintiff's anxiety was noted as moderate. (Id.)
That same day, Plaintiff also met with Tameka Jackson, R.N. (See id. at 338-39.)
Plaintiff reported experiencing difficulty sleeping and increased depression due to his financial
problems. (Id. at 338.) He asked that his Remeron dosage be increased. (Id.) Plaintiff denied
using drugs or alcohol. (Id.) Plaintiff's behavior appeared normal and cooperative. (Id.) His
mood was sad; his affect was appropriate to the.situation. (Id.) Plaintiff displayed logical and
coherent thoughts, and no impairment in concentration. (Id. at 338-3 9.) Plaintiff also denied
having any suicidal or homicidal thoughts. (Id. at 338.) Plaintiff's insight and judgment were
good. (Id. at 339.) No anxiety was noted. (Id.)
Finally, Plaintiff also met with Diaa Noaman, M.D. (See id. at 340-41.) Plaintiff
reported that he was experiencing financial problems and looking for a job, both of which were
causing him sadness. (Id. at 340.) Plaintiff denied experiencing any manic or psychotic
symptoms.

~)

Dr. Noaman noted that Plaintiff's behavior was normal and cooperative. (Id.)

Plaintiff's mood and affect were sad. (Id.) Plaintiff's appetite was good and his sleep was fair.
(IQ.) Plaintiff denied any suicidal or homicidal thoughts. (IQ.) His thoughts appeared logical

and coherent with no impairment in concentration or memory. (Id. at 341.) He displayed fair
insight and good judgment. (Id.) No anxiety was noted. (Id.) Dr. Noaman's treatment plan
continued Plaintiff on Depakote, Vistaril, Wellbutrin, and Remeron at an increased dosage. (Id.
at 340.)
On July 8, 2011, Plaintiff was evaluated by Mark A. Pita, M.D., 1 with the Mobile County
Health Department. (See id. at 353-58.) Plaintiff complained of arthritis in his left ankle, foot,

1

The ALJ referred to this physician as Dr. Mosha Peters. (See. e.g., R. at 16, 17.) This appears to be a result of
error introduced by Plaintiffs counsel in the proceedings below. (See id. at 29 ("[I] probably mislabeled the name

13

knee, shoulder, and hand. (Id. at 355.) He also reported a history of bipolar disorder. (Id.)
Plaintiff further informed Dr. Pita that he was applying to the SSA for Supplemental Security
Income ("SSI"), and needed a primary care physician. (Id.) Plaintiff claimed that the pain he
experienced from rheumatoid arthritis had recently worsened, and was interfering with his
activity and sleep. (Id.) Plaintiff stated that the pain was throbbing and persistent. (Id.) Upon
evaluation, Dr. Pita noted that while Plaintiff had pain localized to one or more joints, he was not
feeling tired or poorly, and did not have depression. (Id. at 356.) Plaintiffs lungs exhibited
normal respiration, depth, and rhythm. (Id. at 357.) Dr. Pita diagnosed Plaintiff with swan-neck
deformities in both hands. (Id.) Upon neurological examination, Plaintiff exhibited no
dysfunction in his motor capabilities. (Id.) Dr. Pita's assessment was arthropathy, rheumatoid
arthritis, bipolar disorder, and primary insomnia. (Id.) Dr. Pita prescribed Mobic, Ultram,
Prednisone, Ambien, and Albuterol. (Id. at 357-58.)
On July 11, 2011, Plaintiff returned for blood and urine testing. (See id. at 359-68.) On
August 3, 2011, Plaintiff returned for a follow-up with Dr. Pita. (Id. at 374-75.) The laboratory
results showed hypertriglyceridemia, but Plaintiff stated that he had eaten prior to the exam. (Id.
at 374.) Plaintiff reported that his insomnia was slightly improved and that his pain had mildly
improved with the medications. (Id.) Upon examination, Plaintiffs respiration rhythm and
depth were normal. (Id. at 375.) Plaintiffs musculoskeletal system also appeared normal. (MJ
Upon neurological examination, Plaintiffs cranial nerves and motor skills were normal. (Id.)

on the CD. But it's marked Peta [sic], and we were told Mosh[e] Peters, so I think that's our error ...."(alterations
added)).) This error may have been introduced through material added by counsel to label the underlying
documents. (See. e.g., id. at 369.) As the underlying records themselves indicate, this physician's name-as it
appears in print-is Mark A. Pita. (See. e.g., id. at 374, 375.) Thus, the court need not rely on the physician's
signatures, which are nonetheless consistent with the name Mark Pita (see. e.g., id. at 370, 372), to establish this fact
(although the ALJ appeared to do so~ id. at 29)).

14

Dr. Pita's diagnosis was asthma, arthropathy, and primary insomnia. (MJ Plaintiff was to use
Albuterol, ProAir, and Elavil. (Id.)
Dr. Pita also completed a physical capacities evaluation of Plaintiff on August 3, 2011.
(Id. at 370.) Dr. Pita indicated that Plaintiff could sit for one hour at a time, for a total of two
hours in an eight-hour workday. (Id.) Dr. Pita further indicated that Plaintiff could stand and
walk for less than one hour at a time, for a total of two hours each in an eight-hour workday.
(Id.) Plaintiff could lift up to ten pounds frequently, and up to twenty pounds occasionally. (MJ
Plaintiff could not lift anything over twenty pounds. (Id.) Dr. Pita found that Plaintiff was
unable to use either hand for simple grasping, pushing and pulling of arm controls, or fine
manipulation. (Id.) Dr. Pita noted that Plaintiff was unable to use either foot for repetitive
movements. (Id.) Plaintiff was not able to bend, squat, crawl, climb, or reach. (Id.) Dr. Pita
indicated that Plaintiff was totally restricted with respect to unprotected heights and being around
moving machinery. (Id.) Plaintiff was mildly restricted from exposure to marked changes in
temperature and humidity. (Id.) Plaintiff was moderately restricted in his ability to drive
automotive equipment. @) Plaintiff was also mildly restricted with respect to exposure to dust,
fumes, and gases. (Id.)
Finally, Dr. Pita completed a clinical assessment of Plaintiffs pain that same day. (See
id. at 371-72.) Dr. Pita found that Plaintiff experienced pain to such an extent as to be distracting
to the adequate performance of daily activities or work. (Id. at 3 71.) It was also Dr. Pita's view
that physical activity such as walking or standing would greatly increase Plaintiffs pain to such
a degree that it would cause distraction from or total abandonment of his task. @) Dr. Pita
further indicated that medication side effects might be present, but not to such a degree as to

15

create serious problems in most instances. (Id. at 372.) Dr. Pita ultimately concluded that
Plaintiffs underlying medical condition was consistent with the pain he experienced. (Id.)
3.

Post-Hearing Medical Evidence in Administrative Record

In reviewing the denial of Plaintiffs disability claim, the Social Security Appeals
Council also considered-in addition to the foregoing evidence-what it labeled "Medical
records from the University of South Alabama Hospitals for the time period of
November 14, 2010 to May 24, 2012." (Id. at 5.) This evidence was not part of the record when
an administrative law judge ("ALJ") initially found that Plaintiff was not disabled, but was added
to the administrative record as Exhibit B 19F by the Appeals Council. (Id.)
These records included invoices for services, as well as lists of doctor and hospital visits
during the time period after the ALJ conducted a hearing, see infra Part LB. (See. e.g., id.
at 381-86, 388, 392, 398.) Also contained in these records were a letter, dated May 2, 2012,
from the Alabama Department of Human Resources approving Plaintiff for food stamps, and a
letter, dated September 30, 2011, approving Plaintiff for ADA Paratransit (M.A.P.)
transportation services. (See id. at 383, 403.)
In addition, these records included a printout from the Ozanam Charitable Pharmacy,
which lists the following medications as having been prescribed to Plaintiff between
January 1, 2010 and February 29, 2012: Naproxen, Hydroxyzine, Cetirizine HCL (Zyrtec), folic
acid, Vitamin B-1, Divalproex Sodium (Depakote), Mirtazapine (Remeron), Bupropion
(Wellbutrin), Meloxicam (Mobic), Tramadol HCL (Ultram), Prednisone, Amitriptyline HCL
(Elavil), Simvastin (Zocor), Cyclobenzaprine (Flexeril), and Omeprazole (Prilosec). (See id.
at 395-97.)
Further included in this exhibit was a duplicate copy Plaintiffs Physical Capacities
Evaluation completed by Dr. Pita on August 3, 2011. (Id. at 402.) The exhibit also included
16

records reflecting that on October 24, 2011, Dr. Pita indicated Plaintiff was taking Ambien,
Elavil, Mobic, ProAir, Simvastin, Ultram, and Viagra. (Id. at 387.) They further reflect that on
April 2, 2012, Dr. Pita generated a report documenting that Plaintiff had been diagnosed with
bipolar disorder, unspecified, as of July 8, 2011, and pure hypercholesterolemia, as of
September 28, 2011. (Id. at 394.) The records also show that on April 2, 2012, Plaintiff was
again prescribed Elavil and Viagra, and was provided with a wrist splint for managing carpal
tunnel. (See id. at 389.)
Another set of records indicate that on May 13, 2012, Plaintiff was admitted to USAMC.
(Id. at 407.) On May 22, 2012, by which point Plaintiff indicated persistent pneumothorax on
the right side, Carl Maltese, M.D., performed a diagnostic bronchoscopy and surgical
thoracoscopy, removing bullous emphysema. (Id. at 408-09.) Plaintiff was not discharged until
May 25, 2012. (Id. at 407.)
Finally, a report generated on June 6, 2012, reflected that Plaintiff had been diagnosed
with a cough and constipation. (Id. at 389.) At that point, he was continuing his ProAir and
Ultram prescriptions from 2011. (Id.) The report also reflected that on April 2, 2012, Plaintiff
had been again prescribed Elavil and Viagra; and on June 6, 2012, he was also prescribed
Albuterol, Lortab, and Miralax. (Id. at 389-90.)

B.

Other Evidence
1.

Plaintiffs Testimony

On October 4, 2011, Plaintiff testified at a hearing regarding his disability claim before
D. Burgess Stalley, ALJ with the SSA. (See id. at 26, 30-48.) Plaintiff testified that he had been
evicted from his prior address in May 2011, and had been staying at relatives' houses since then.
(IQ) He had taken the bus to the hearing. (Id. at 30.) Having recently transferred from Faulkner

State to Virginia College, he was still working toward his associate's degree in event planning,
17

and expected to graduate the following summer. (Id. at 30-31.) Plaintiff testified that his grades
were B's, C's, and two D's. (Id. at 37.) Plaintiff reported that he needed to attain a C or better in
order to continue receiving his grants to attend college. (Id. at 31-32, 37.) Plaintiff was also
receiving unemployment benefits. (Id. at 31-32.) In his testimony, Plaintiff acknowledged that
in order to receive the unemployment benefits, he had to swear that he would be ready and
willing to go to work ifhe received a job. (Id. at 32.) Plaintiff testified that he had been fired
from his last job as a chef due to his lack of performance. (!Q.J Plaintiff had been the sole chef
for 86 doctors at a hospital but could not fulfill his duties as a result of his arthritis. (Id.)
Plaintiff had worked at the hospital five days per week for two and a half years, having worked
his way up from pot washer to chef. (Id. at 33-34.)
Plaintiff testified that while he sometimes used drugs and alcohol while he was working
there, by the time of the hearing, he had not used drugs or alcohol for one year. (Id. at 34.) The
ALJ pointed out, however, that records dated December 3, 2010, reflected Plaintiffs
involvement in a domestic violence incident in which he stated that he needed to stop drinking
and using drugs. (Id. at 34.) Plaintiff responded that this incident took place around the time of
his birthday, and admitted that he had been consuming alcohol and using cocaine at the time.
(Id. at 35.) Plaintiff explained that he had received the drugs from friends. (Id. at 36.)
Nonetheless, Plaintiff further stated that he was no longer consuming alcohol. (Id. at 37-38.) At
the time of the hearing, Plaintiff was performing community service to serve his sentence
pursuant to a public intoxication charge. (Id. at 39.) Plaintiff also had a lawsuit pending in civil
court in Mobile, Alabama in connection with settling his mother's estate. (Id. at 41.)
When asked about his missed appointments at AltaPointe and why he had not attended
drug rehabilitation as suggested by his doctor, Plaintiff testified that he could not afford the

18

co-pay. (Id. at 38-39.) Plaintiff also testified that his missed appointments and community
service hours were not a result of his drug use, but were instead a consequence of his difficulty
getting around. (Id. at 40.) Plaintiff explained that his hands and legs had been bothering him
for five years, and that he had taken medication on his own. (Id. at 42.) At the time of the
hearing, Plaintiff was using about twelve different medications, which he had obtained through
the Catholic Services Clinic. (Id.)
When the ALJ asked why Plaintiff was going to school and working toward a degree and
work placement program if he was unable to work, Plaintiff responded that he "needed
something to do" and was trying to have "something to fall back on" if "something happened."

ilib.) Plaintiff also explained that his depression also prevented him from working; Plaintiff
testified that his depression was sometimes so bad as to render him incapable of getting out of
bed. (Id. at 4 3.) Plaintiff stated that he had experienced depression throughout his entire life,
and was taking Remeron and Depakote, among other medications, to treat this condition. (@
The ALJ also inquired as to Plaintiffs intermittent explosive disorder. (Id. at 43-44.) Plaintiff
testified that he was facing charges for assault and battery as a result of an altercation with his
stepfather. (Id. at 43-44.)
Plaintiffs attorney also elicited testimony that Plaintiff experienced difficulty grasping
and holding heavy objects, and that he was unable to straighten his fingers on both hands. (Id.
at 44.) Specifically, Plaintiff had difficulty with his fourth and fifth digits on both hands, which
were swollen around the knuckles. (Id. at 45.) Plaintiff also had arthritis and swelling in his left
leg and foot. (See id. at 45-46.) Plaintiff testified that he had difficulty standing for long periods
of time, lifting heaving objects, and taking notes in class. (Id. at 46.) Plaintiff also testified that
the medication he took helped him to sleep for four hours per night, and that he was not hearing

19

voices as often as before. (Id. at 46-47.) Plaintiff explained that he had been hearing voices for
most of his life, but did not hear the voices while he had been taking drugs. (Id. at 47.)
In addition to testifying at the hearing, Plaintiff had also completed a function report,
which was dated August 7, 2010. (See id. at 158-65.) Plaintiff indicated that he lived alone in
an apartment, and that most of the time it was difficult for him to get out of bed and make
something to eat. (Id. at 15 8.) Plaintiff also had difficulty sleeping. (Id.) Plaintiff reported that
he had no problems with personal care, but also indicated that without reminders, he would not
shower or cut his hair, and just wanted to sleep. (Id. at 159-60.) While Plaintiff was able to
prepare his own meals, his illness caused him to stop cooking "all kinds of meals," and instead,
to cook "fast can goods" depending on his level of anger. (Id. at 160.) Plaintiff indicated that he
needed encouragement to do household chores such as washing his clothes, and became
confused if he tried to do too many chores at once. (Id.) Plaintiff went outside when he felt like
it, and alternated between walking and using public transportation. (Id. at 161.) Plaintiff was
able to shop in stores for food and household items once a month. (Id.)
Plaintiff reported becoming worse at managing money following the onset of his illness,
indicating that compulsive spending had become a problem for him. (Id. at 161-62.) Plaintiff
claimed that he had lost interest in his hobbies and did not want to be around other people. (Id.
at 162.) Plaintiff also noted that he needed reminders to go places. (Id.) He further emphasized
that he had problems getting along with others and did not trust people. (Id. at 163.) He also
experienced difficulty getting along with authority figures and work colleagues. (Id. at 164.)
Plaintiff indicated that he had difficulty with his memory, concentration, completing tasks, using
his hands, and following instructions. (Id. at 163.) Plaintiff noted that he was unable to "keep
his mind on one thing for a long period oftime." (Id.) But Plaintiff also wrote that he could

20

follow spoken instructions very well, and written instructions when alone. (Id.) Although
Plaintiff indicated that he held things inside with regard to stress, he claimed that he handled
changes in routine well. (Id. at 164.) Finally, Plaintiff wrote that his depression was getting out
of hand and that he wanted help. (Id. at 165.)
2.

Vocational Expert Testimony

Eric Anderson, an impartial vocational expert, also testified during the October 4, 2011,
hearing. The ALJ posed a hypothetical individual of Plaintiff's age, educational and work
background, and who could perform only light work. (Id. at 51.) The ALJ further instructed that
this hypothetical individual was moderately impaired in his ability to interact appropriately with
the public, supervisors, and co-workers, and in his ability to respond to the typical work
situations and changes, but could remember, understand, and carry out short and simple two-step
instructions, and concentrate for reasonable increments of time. (Id. at 51-52.) Anderson
testified that such an individual could not perform Plaintiff's prior job as a chef, but could
perform the jobs of garment bagger, assembler, and poultry boner. (Id. at 52-53.) The ALJ then
directed Anderson's attention to Exhibit Bl 7F, the Physical Capabilities Evaluation and Clinical
Assessment of Pain completed by Dr. Pita on August 3, 2011. (Id. at 53; see also id. at 370-72.)
The ALJ asked whether a hypothetical individual with the corresponding vocational profile and
pain would be able to perform any work; Anderson testified that such an individual would not.
(Id. at 53.)
3.

Other Evidence Added by the Appeals Council

In making its determination that Plaintiff was not disabled, the Appeals Council also
considered newly added Exhibits Bl5E, Bl6E, and Bl 7E,2 which consisted of, in part, Plaintiff's

2

This was in addition to the medical evidence added to the record by the Appeals Council in Exhibit B 19F. See
supra Part I.A.3.

21

correspondence with the SSA and educational records from Faulkner State College. Exhibit
B 15E comprises a series of letters from Plaintiff to the Appeals Council, wherein Plaintiff
discussed: his May 2012 hospital stay related to lung problems; how his medical records could
be obtained; the increased pain he was experiencing from his rheumatoid arthritis in his legs; his
detailed work history, including the physical demands of prior employment; and the impairments
to his colon and lungs caused by the medications he was taking. (See id. at 196-215.) In
particular, Plaintiff indicated that he suffered an asthma attack that resulted in the collapse of his
right lung; that Plaintiff underwent a procedure to remove lobes from his right lung; and that he
presently lacked oxygen and breathing treatment because he did not have insurance. (Id.
at 201-03, 205.)
Exhibit B 16E included a May 1, 2012, letter in which Plaintiff asked the Appeals Council
to consider new evidence that he attached, and wrote that his respiratory problems, affective
disorder, substance disorder, depression, anxiety, and liver damage had persisted. (Id. at 217.)
These attachments included: a list of doctor and hospital visits between November 2011 and
May 2012; a March 14, 2012, letter from Bishop State Community College denying Plaintiff
financial aid in part due to insufficient qualifying hours, and because the medical documentation
he submitted indicated a severe physical limitation that would not permit him to function in
commercial food service or masonry; and an April 24, 2012, letter from the Alabama Department
of Industrial Relations informing him that no further payments could be made on Plaintiffs
extended unemployment benefit claim after the week of April 21, 2012. (Id. at 219-22.) The
attached documents also included a May 25, 2011, notice of court action in connection with a
lawsuit filed by Manchester Park, LLC against Plaintiff, and an April 19, 2012, letter from the

22

Waterfront Rescue Mission indicating that Plaintiff had spent two nights in its homeless shelter
on April 16 and April 19, 2012. (Id. at 223-24.)
Exhibit B 17E consists of a Faulkner State College transcript accessed on
December 12, 2010, which reflects that Plaintiff received failing grades in nearly all of his
classes except one, in which he earned a D. (Id. at 229.)
II.

PROCEDURAL HISTORY

On August 2, 2010, Plaintiff filed an application for Social Security DIB, claiming that
he had been disabled since May 15, 2010. (See id. at 125.) The SSA initially denied the
application on October 15, 2010. (Id. at 56.) On November 8, 2010, Plaintiff, who was
represented by counsel, requested a hearing (see id. at 64), which was conducted by an ALJ on
October 4, 2011 (see id. at 26-53). On October 12, 2011, the ALJ issued a written decision
concluding that Plaintiff was not disabled within the meaning of the Social Security Act, and
denying Plaintiffs application for Social Security disability benefits. (See id. at 7, 10.) Plaintiff
subsequently requested that the SSA Appeals Council review the ALJ's unfavorable decision; on
February 6, 2013, the Appeals Council denied his request for review, upholding the ALJ's
decision and returning some of Plaintiffs proffered additional evidence. (See id. at 1-5.)
Meanwhile, on May 8, 2012-after the ALJ's decision, but before the Appeals Council's
denial-Plaintiff applied for SSI benefits. (See SSA SSI: Not. of Award (Pl.'s Mem. of Law in
Supp. of Pl.'s Cross Mot. for Remand ("Pl.'s Mem."), Ex. A) (Dkt. 26) at 1.)3 On
April 17, 2013, the SSA determined that for purposes of his eligibility for SSI, Plaintiff was
disabled as of July 9, 2012. (Id. at 1, 2.) On June 4, 2013, the SSA further determined that
3

Plaintiffs May 8, 2012, application is not part of the administrative record. (See Pl.'s Mem. at 2 n.7.) While
Plaintiff has provided a copy of his Notice of Award ofSSI benefits, this document does not indicate which
conditions served as the basis for the SSA's subsequent determination that he was disabled. (See generally Not. of
Award.) Plaintiff argues, however, that "the medical evidence before the Appeals Council for his first application is
the same as that before the agency in his second application." (Pl.'s Resp. at 1.)

23

Plaintiff was eligible for DIB beginning in January 2013, based on the same disability onset date
of July 9, 2012. (See SSA Retirement, Survivors and Disability Insurance: Not. of Award (Pl.'s
Mem., Ex. A) at 1.)
Before the SSA's favorable determinations, however, on March 4, 2013, Plaintiff,
proceeding prose, filed the instant action pursuant to 42 U.S.C. § 405 (g), seeking judicial
review of the SSA's February 5, 2013, decision denying his August 2, 2010, application for DIB
based on an alleged onset date of May 15, 2010. (See Compl. (Dkt. 1).) On June 28, 2013, the
Commissioner filed her Answer and the certified administrative record, and mailed a copy of the
record to Plaintiff. (See Answer (Dkt. 10); R.; Not. of Mailing (Dkt. 9-1).) On August 21, 2013,
attorney Ann P. Biddle filed a notice of appearance as counsel for Plaintiff in this case. (Not. of
Appearance (Dkt. 11).)
Both the Commissioner and Plaintiff subsequently filed cross-motions for judgment on
the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The Commissioner filed her
motion on October 11, 2013. (See Mem. of Law in Supp. ofDef.'s Mot. for J. on the Pleadings
(Dkt. 24).) Plaintiff filed a cross-motion seeking remand on November 22, 2013. (See Pl.'s
Mem.) The Commissioner filed a response to Plaintiff's cross-motion on December 20, 2013.
(See Mem. of Law in Further Supp. ofDef.'s Mot. for J. on the Pleadings & in Opp'n to Pl.'s
Cross-Mot. for Remand ("Def.'s Resp.") (Dkt. 27).) Plaintiff filed his response to the
Commissioner's motion on January 10, 2014. (See Pl's. Mem of Law in Further Supp. of Pl.'s
Cross Mot. for Remand ("Pl. 's Resp.") (Dkt. 28).)

III.

LEGAL STANDARD
A.

Review of Final Determination of the Social Security Administration

Under Rule 12(c), "a movant is entitled to judgment on the pleadings only if the movant
establishes 'that no material issue of fact remains to be resolved and that [the movant] is entitled
24

to judgment as a matter oflaw."' Guzman v. Astrue, No. 09-CV-3928 (PKC), 2011WL666194,
at *6 (S.D.N.Y. Feb. 4, 2011) (quoting Juster Assocs. v. City of Rutland, Vt., 901 F.2d 266, 269
(2d Cir. 1990)). "The role of a district court in reviewing the Commissioner's final decision is
limited." Pogozelski v. Barnhart, No. 03-CV-2914 (JG), 2004 WL 1146059, at *9 (E.D.N.Y.
May 19, 2004). "[I]t is up to the agency, and not [the] court, to weigh the conflicting evidence in
the record." Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). "A district court
may set aside the Commissioner's determination that a claimant is not disabled only ifthe factual
findings are not supported by 'substantial evidence' or if the decision is based on legal error."
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42 U.S.C. § 405(g)). "Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Moran v. Astrue, 569 F.3d 108, 112
(2d Cir. 2009) (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)). Thus, as long as
(1) the ALJ has applied the correct legal standard, and (2) his findings are supported by evidence
that a reasonable mind would accept as adequate, the ALJ' s decision is binding on this court.
See Pogozelski, 2004 WL 1146059, at *9.
Where an ALJ has failed to apply the correct standard, or the ALJ' s decision is not
supported by substantial evidence, district courts are authorized to remand social security appeals
pursuant to either the fourth or sixth sentences of 42 U.S.C. § 405(g). See Melkonyan v.
Sullivan, 501 U.S. 89, 97-98 (1991) (citing Sullivan v. Finkelstein, 496 U.S. 617, 623-29
(1990)). The fourth sentence of§ 405(g) authorizes courts to enter judgment "affirming,
modifying, or reversing the decision of the [SSA], with or without remanding the cause for a
rehearing." Id. at 98 (quoting 42 U.S.C. § 405(g)). Pursuant to the sixth sentence, the court
"may ... remand the case ... for further action by the Commissioner." 42 U.S.C. § 405(g). In a

25

"sixth sentence remand," the court "does not rule in any way as to the correctness of the
administration determination," but instead, remands the case "because new evidence has come to
light that was not available to the claimant at the time of the administrative proceeding and that
evidence might have changed the outcome of the prior proceeding." Melkonyan, 501 U.S. at 98.

B.

Determination of Disability

"To receive federal disability benefits, an applicant must be 'disabled' within the
meaning of the Social Security Act." Shaw, 221 F.3d at 131; see also 42 U.S.C. § 423. A
claimant is "disabled" within the meaning of the Act ifhe or she has an "inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A). The
impairment must be of "such severity that [the claimant] 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. § 423(d)(2)(A).
The SSA has promulgated a five-step procedure for determining whether a claimant is
"disabled" under the Act. See 20 C.F.R. § 404.1520(a)(4). In Dixon v. Shalala, 54 F.3d 1019
(2d Cir. 1995), the Second Circuit described this five-step analysis as follows:
The first step in the sequential process is a decision whether the
claimant is engaged in "substantial gainful activity." If so, benefits
are denied.
If not, the second step is a decision whether the claimant's medical
condition or impairment is "severe." If not, benefits are denied.
If the impairment is "severe," the third step is a decision whether
the claimant's impairments meet or equal the "Listing of
Impairments" . . . of the social security regulations. These are
impairments acknowledged by the Secretary to be of sufficient
severity to preclude gainful employment. If a claimant's condition

26

meets or equals the "listed" impairments, he or she is conclusively
presumed to be disabled and entitled to benefits.
If the claimant's impairments do not satisfy the "Listing of
Impairments," the fourth step is assessment of the individual's
"residual functional capacity," i.e., his capacity to engage in basic
work activities, and a decision whether the claimant's residual
functional capacity permits him to engage in his prior work. If the
residual functional capacity is consistent with prior employment,
benefits are denied.
If not, the fifth and final step is a decision whether a claimant, in
light of his residual functional capacity, age, education, and work
experience, has the capacity to perform "alternative occupations
available in the national economy." If not, benefits are awarded.

Id. at 1022 (internal citations omitted) (quoting Decker v. Harris, 647 F.2d 291, 298
(2d Cir. 1981)).
The "burden is on the claimant to prove that he is disabled." Balsamo v. Chater, 75, 80
(2d Cir. 1995) (quoting Caroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642
(2d Cir. 1983)). But if the claimant shows at step four that his impairment renders him unable to
perform his past work, there is a limited shift in the burden of proof at step five that requires 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 (2d Cir. 2009) (per curiam).
In making the determinations required by the Social Security Act and the regulations
promulgated thereunder, "the Commissioner must consider (1) the objective medical facts; (2)
the medical opinions of the examining or treating physicians; (3) the subjective evidence of the
claimant's symptoms submitted by the claimant, his family, and others; and (4) the claimant's
education background, age, and work experience." Pogozelski, 2004 WL 1146059, at *10
(citing Carroll, 705 F.2d at 642). Moreover, "the ALJ conducting the administrative hearing has
an affirmative duty to investigate facts and develop the record where necessary to adequately
assess the basis for granting or denying benefits." Id.
27

IV.

DISCUSSION
Plaintiff challenges the ALJ's determination that he was not disabled under the Social

Security Act as of May 15, 2010. First, Plaintiff contends that his case should be remanded in
light of new evidence. (See Pl.'s Mem: at 17-26; Pl.'s Resp. at 1-4.) Specifically, Plaintiff
asserts that the evidence he sent to the Appeals Council in this action, the subsequent award of
disability benefits pursuant to his second application, and the evidence he submitted as part of his
second application, all warrant remand for reconsideration as "new and material" evidence. (See
Pl.'s Mem. at 17.)
Second, Plaintiff argues that the ALJ failed to apply the legal standards set forth in SSA
regulations when assessing his credibility. (See Pl.'s Mem. at 26-29; Pl.'s Resp. at 5-6.) In
particular, Plaintiff claims that the ALJ first formulated Plaintiff's RFC and then compared
Plaintiff's statements to that RFC. (Pl.'s Mem. at 28.) Plaintiff asserts that this method, which
"puts the cart before the horse," constitutes legal error since a claimant's credible statements
form part of the record, and the ALJ must consider the record as a whole when evaluating
Plaintiff's RFC. (Id.) Additionally, Plaintiff alleges that the ALJ failed to comply with SSA
regulations in weighing Plaintiff's statements about his conditions against the entire record. (Id.
at 28-29.)

A.

New Evidence

Plaintiff first argues that this case should be remanded for consideration of: (1) new
materials in the administrative record not available to the ALJ at the time of the hearing but later
submitted to the Appeals Council; (2) Plaintiff's subsequent favorable decision; and (3) evidence
submitted in support of the second application. Specifically, Plaintiff argues that new evidence
regarding his respiratory problems, joint disease and rheumatoid arthritis, and psychiatric
problems constitute material evidence because they suggest that such conditions might be severe
28

and chronic, and thus, could reasonably lead the ALJ to change her decision at step two of the
analysis. (Pl.'s Mem. at 21-22.)
A court cannot consider evidence not contained in the administrative record when
reviewing the findings of the Commissioner. See Casiano v. Apfel, 39 F. Supp. 2d 326, 330-31
(S.D.N.Y. 1999) (adopted report and recommendation), aff'd, 205 F.3d 1322 (2d Cir. 2000)
(unpublished table decision). However, the court may remand a case to the SSA to consider such
evidence, "but only upon a showing that there is new evidence which is material and that there is
good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42
U.S.C. § 405(g); see Lisa v. Sec'y of Dep't of Health & Human Servs. of the United States, 940
F.2d 40, 43 (2d Cir. 1991) (discussing three-part test pursuant to which Plaintiff must
demonstrate (1) that the evidence is new, (2) that the evidence is material, and (3) good cause for
the failure to present the evidence earlier); see also Pollard v. Halter, 377 F.3d 183,193
(2d Cir. 2002) (discussing standard).
First, "new" evidence cannot be "merely cumulative of what is already in the record."
Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (quoting Szubak v. Sec'y of Health &
Human Servs., 745 F.2d 831, 833 (3d Cir. 1984)).
Second, to be considered material, evidence must be "relevant to the claimant's condition
during the time period for which benefits were denied and probative." Id. Evidence that
demonstrates a disability acquired after the ALJ' s decision, or a subsequent deterioration of the
claimant's conditions after the decision, is not material and does not necessitate a remand. Cf..
~.

Tracyv. Apfel, No. 97-CV-4357 (JG), 1998 WL 765137, at *6 (E.D.N.Y. Apr. 22, 1998).

While evidence that post-dates the ALJ's decision cannot be presumed to have no bearing on that
decision, such new evidence can only be considered relevant to the extent that it "may disclose

29

the severity and continuity of impairments existing before the earning requirement date or may
identify additional impairments which could reasonably be presumed to have been present."
Pollard, 377 F.3d at 194 (quoting Lisa, 940 F.2d at 44). Courts have been inclined to find later
evidence to be material where a diagnosis occurs after the proceedings that "sheds considerable
new light on the seriousness of [a claimant's] condition," and the evidence supports that
diagnosis. Lisa, 940 F.2d at 44 (alteration in original) (quoting Tolany v. Heckler, 756
F.2d 268, 272 (2d Cir. 1985)). Moreover, materiality requires "a reasonable possibility that the
new evidence would have influenced the [Commissioner] to decide claimant's application
differently." Pollard, 377 F.3d at 193 (alteration in original) (quoting Tirado, 842 F.2d at 597).
Finally, before new evidence can be considered, a claimant must demonstrate good cause
for failing to present this evidence earlier. Tirado, 842 F.2d at 597; see also Tolany, 752 F.2d
at 272 (finding good cause where new evidence was based on a later evaluation and assessment
of claimant's response to medication required observation period).
1.

Evidence Considered by the Appeals Council

The court first considers whether remand is warranted based on evidence submitted by
Plaintiff to the Appeals Council after the ALJ' s decision. The issue is therefore not whether
these materials are "new," since they are not, but whether they are material and justify remand.
In reviewing an appeal from an ALJ' s decision, the Appeals Council will examine the
entire record-including evidence submitted after the ALJ' s decision-to determine whether the
findings and conclusions of the ALJ are "contrary to the weight of the evidence currently of
record." 20 C.F.R. § 404.970(b). Pursuant to SSA regulations, the Appeals Council considers
newly submitted evidence only if it is new and material, and relates to the time period on or
before the ALJ's decision. See 20 C.F.R. § 404.970(b). If however, the potential evidence does
not relate to the relevant time period, the Appeals Council is required to return the evidence to
30

the claimant with an explanation of why the evidence was not accepted, and advise the claimant
of his right to file a new application. See 20 C.F.R. § 416.1476(b)(l); Baladi v. Barnhart, 33 F.
App'x 562, 564 n. l (2d Cir. 2002) (summary order) (noting that if claimant submits new
evidence that "relates to the applicant's condition after the date of the ALJ's decision, the
Appeals Council is required to return the evidence" with instructions for filing new application);
Miller v. Barnhart, No. Ol-CV-2744 (DAB) (FM), 2004 WL 1304050, at *9 (S.D.N.Y.
May 6, 2004) (adopted report and recommendation) (evidence properly returned where it
involved treatment that began after date of ALJ's decision). Evidence submitted to the Appeals
Council following an ALJ's decision becomes part of the administrative record for this court's
review, even where the Appeals Council declines to engage in substantive review of the ALJ's
decision. Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996).
Here, Plaintiff argues that the new evidence he submitted to the Appeals Council
constitutes sufficient justification for remand. Plaintiff claims that this new evidence shows that
he suffered from chronic and severe conditions-notably asthma and respiratory problems, joint
disease and rheumatoid arthritis, and other psychiatric problems-for which the ALJ failed to
account in her decision. The Appeals Council returned a number of documents Plaintiff
submitted as this new evidence, however, because the information referred to a period of time
after the ALJ's October 12, 2011, decision. 4 (See R. at 2.) Since these returned documents were
not part of the certified administrative record submitted to the court, but Plaintiff has also
presented them as part of the evidence he submitted in connection with his subsequent favorable

4

In evaluating Plaintiffs original application and determining the materiality of newly submitted evidence, the
relevant time period runs from May 15, 2010, the date of onset of Plaintiffs alleged disability, to October 12, 2011,
the date on which the ALJ rendered her decision.

31

application, they will be examined within the context of Plaintiffs second application, even
though the documents were available to the Appeals Council. 5 See infra Part IV.A.3.
The Appeals Council did, however, incorporate some newly suqmitted evidence into the
administrative record, and considered that evidence in denying Plaintiffs request for review.
Specifically, the Appeals Council added "Claimant's Correspondence" (Exhibits B15E and
B16E), Plaintiffs college transcript (Exhibit Bl 7E), Plaintiffs request for review of hearing
(Exhibit B 17B), and documents entitled "Medical records University of S. Alabama Hospitals
for the period 11/14/2010 - 5/24/2012" (Exhibit B19F). (R. at 2, 5.) Still, this newly added
evidence does not provide a basis for remand.
The prescription records from Ozanam Charitable Pharmacy list medications and
supplements that were prescribed both during and after the relevant time period. (See id.
at 395-97.) This information is cumulative of the treatment notes contained in the original record
and considered by the ALJ. 6 This is true as well of the medication summaries contained in
Exhibits B16E and B19F. (Id. at 227, 387.) Further, the patient encounter summaries from Dr.
Pita, which are included in Exhibits B16E and B19F, largely postdate the ALJ's decision and
relate instead to Plaintiffs conditions in June 2012, after the relevant time period between
s Plaintiff asserts that evidence submitted to the Appeals Council and evidence submitted as part of the second
application became part of the same electronic folder. (Pl.'s Cross Mot. at 18.) Plaintiff further claims that counsel
investigated and "discovered no other documents in the second application that were not already in the electronic
folder and administrative record." (Id.) The certified copy of the administrative record presented to this court,
however, consists solely ofthe exhibits presented to the ALJ (Exhibits BIA, BlB-B16B, B1D-B4D, B1E-B14E,
B1F-B18F), and evidence added by the Appeals Council (Exhibits Bl 7B, B15E-B17E, B19F}-and not documents
that were submitted in connection with Plaintiffs subsequent application or documents that were returned by the
Appeals Council. (See R. at 2, 5, 27.) As a result, this court will evaluate evidence considered by the Appeals
Council and included in the physical copy of the administrative record received by the court separately from
evidence submitted as part of Plaintiffs second application.
6

As the court has already noted, new evidence cannot be "merely cumulative of what is already in the record."
Tirado, 842 F.2d at 597 (quoting Szubak, 745 F.2d at 833). In characterizing evidence as cumulative of material
already in the record, numerous courts have used the phrase "duplicative and cumulative" without distinguishing the
between the two terms, or elaborating on the meaning of this phrase. In this Memorandum and Order, a document is
"duplicative and cumulative" when it is a facsimile of a document already contained in the original administrative
record considered by the ALJ. A document is "cumulative" when the information it contains is already provided to
some extent elsewhere in the administrative record.

32

May 15, 2010 and October 12, 2011. (See id. at 225, 389-90, 394.) The one exception is a
patient encounter summary that reflects Plaintiff had been diagnosed with bipolar disorder in
July 2011, of which the ALJ was fully aware.
The only other reference to the relevant time period is in the lists of medications-which
are also cumulative of information contained within Plaintiff's medical records already examined
by the ALJ-and a July 12, 2011, blood test, the results of which are discussed in Dr. Pita's
records and reviewed by the ALJ. Moreover, these terse documents do not provide any
information regarding the severity of Plaintiffs alleged severe and chronic conditions, or the
symptoms he experienced. Instead, these documents merely reflect the conditions treated, each
of which was documented in the original administrative record, and the medications prescribed,
nearly all of which were already accounted for in the original record. Furthermore, the Physical
Capacities Evaluation (contained in Exhibit B19F) signed by Dr. Pita on August 3, 2011, is
duplicative and cumulative of the copy contained in the original administrative record examined
by the ALJ. (Compare id. at 402, with id. at 370.)
Additionally, neither the April 24, 2012, letter from the Alabama Department of
Industrial Relations Unemployment Compensation Agency (informing Plaintiff that no further
payment could be made on his High Unemployment Extended Benefit claim), nor the
March 14, 2012, letter from Bishop State Community College (denying Plaintiff's appeal for
reinstatement of his financial aid) relate to the relevant time period, and more importantly, do not
furnish any information about Plaintiffs conditions at any point. (See id. at 221, 222.)
Likewise, the medical billing statements in Exhibit B 19F and Notice of Court Action contained
in Exhibit B 16E (and repeated in Exhibit B 19F), as well as the letter from the Waterfront Rescue
Mission dated April 19, 2012 (contained in both Exhibit B16E and Exhibit B19F), do not shed

33

any light on Plaintiffs conditions or symptoms at any point, and consequently, are not material.
(See id. at 223, 224, 381-85, 392, 405, 406.)
Moreover, the May 5, 2012, letter from the Alabama Department of Human Resources
informing Plaintiff that he had been approved for food stamps, and the September 30, 2011,
letter from Wave Transit System informing Plaintiff that he had been approved for "ADA
Paratransit (M.A.P.) Services" are also not material because they do not furnish any additional
information about Plaintiffs conditions during the relevant time period. (See id. at 383, 403.)
These documents provide no more information about his symptoms than the denials of benefits
discussed above. Further, the May 5, 2012, approval for food stamps was sent long after the
relevant time period. While the approval for M.A.P. services was dated before the end of the
relevant time period, it is still not material because it provides no information about why Plaintiff
was eligible for these services, or any of Plaintiffs conditions or symptoms more generally.
Furthermore, the records contained in Exhibit B19F regarding Plaintiffs May 2012
hospitalization, in connection with the procedure performed on his right lung, are not material.
(See id. at 407-09.) Despite Plaintiffs claims that his asthma and respiratory problems were
chronic and severe conditions during the relevant time period, these documents simply indicate a
subsequent deterioration in Plaintiffs respiratory problems in May 2012-seven months after
the relevant time period. Moreover, these records discuss only the procedure performed without
mentioning any chronic condition that may have existed at the time of the ALJ' s decision.
Although Plaintiff spent nearly two weeks in the hospital at that time, the fact that he was
hospitalized for a single procedure in May 2012 does not indicate that his asthma and related
respiratory problems were worse than the ALJ originally believed they were in October 2011.

34

Remand is also not justified by Plaintiffs correspondence with the SSA or his college
transcript from Faulkner State College. These documents simply fail to shed more light on
Plaintiffs conditions during the time period in question. (See id. at 197-215, 217, 220, 229.) In
his letters, Plaintiff lists the medication he was prescribed and references the treatment he
received for his various conditions in 2012; but this communication does not provide any new
information about Plaintiffs condition as it existed during the relevant time period. While
Plaintiffs transcript from Faulkner State College demonstrates that he performed poorly in
school during the 2010-11 academic year, Plaintiff suggests no reason why this shows his
medical condition was worse than originally believed during the relevant time period. 7
Because the documents added to the administrative record by the Appeals Council are not
material, they fail to warrant remand of this case.
2.

Plaintiffs Subsequent Favorable Decision

Plaintiff also contends that the SSA's subsequent favorable decision, on its own,
constitutes new and material evidence that warrants remand. In support of his claim, Plaintiff
cites a number of district court cases for the proposition that a subsequent favorable decision can
be considered as such. (See Pl.'s Mem. at 20-23; Pl.'s Resp. at 3-4.) These cases, however, are
inapposite. For example, in Clemons v. Astrue, No. 12-CV-269A, 2013 WL 4542730, at *6
(W.D.N.Y. Aug. 27, 2013) (adopted report and recommendation), the court found that a
subsequent decision was material where the onset date in the second application was one day
after the original ALJ's decision, and the second ALJ referenced time frames and information

7

In questioning Plaintiff's credibility, the ALJ emphasized the fact that Plaintiff attended college while claiming to
be unable to work. (See R. at 17.) As a result, Plaintiff argues that evidence that he was failing his classes is new
and material with respect to this credibility determination. (Pl.'s Mem. at 20-21.) Because the court ultimately
remands this case to the SSA in light of separate legal errors with respect to the ALJ's credibility determination, see
infra Part IV.B, the court need not-and therefore does not-address whether this evidence alone justifies remand.
Nevertheless, on remand, the ALJ is instructed to review the entire record, including Plaintiff's educational records,
which Plaintiff did not submit until after the ALJ's decision, but which the Appeals Council was willing to consider.

35

adjudicated by the original ALJ. Similarly, in Mikol v. Barnhart, 554 F. Supp. 2d 498, 503-05
(S.D.N.Y. 2008), the court found that a subsequent favorable decision constituted grounds for
reconsideration where the alleged onset date was one day after the original ALJ's denial, and the
second ALJ discussed conditions that the first ALJ addressed.
The circumstances in this case, however, contrast sharply with those in the cases Plaintiff
cites. First, the onset date in Plaintiff's subsequent favorable decision is not close in time to the
ALJ' s decision in Plaintiff's first application. The ALJ in this case rendered her decision on
October 12, 2011. When Plaintiff was awarded SSI benefits on April 17, 2013, however, the
disability onset date was July 9, 2012. (SSA SSI, Not. of Award at 2.) Consequently, there was
a nine-month gap between the ALJ's decision and the date of onset for Plaintiff's disability in the
second case. Moreover, even when it approved Plaintiff's subsequent application, the SSA
pushed back the date of onset from what Plaintiff originally alleged-May 8, 2012. (See id.
at 1-2.) If anything, this further supports finding that Plaintiff was not eligible for disability
benefits during the time period relevant in this case, since the SSA-in approving his second
application-rejected Plaintiff's claim that he was disabled between May and July 2012.
Moreover, the SSA rejected Plaintiff's claim of disability during this period notwithstanding the
fact that Plaintiff was hospitalized for respiratory problems between May 13 and May 25, 2012.
This suggests that it was only after this hospitalization that Plaintiff's condition sufficiently
deteriorated to render him disabled. 8

8

The Second Circuit has repeatedly rejected claimants' efforts to include subsequent favorable decisions as new and
material evidence where the new decision reflects a worsening of conditions. See. e.g., Rivera v. Colvin, 592 F.
App'x 32, 32-33 (2d Cir. 2015) (summary order) (subsequent favorable decision was not material where it rested
upon finding that claimant's conditions grew worse following relevant time period, rather than different assessment
of same evidence evaluated in original decision (citing Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 127
(2d Cir. 2012) (denying challenge to sufficiency of the evidence based in part on subsequent favorable decision
because more recent decision was "based on evidence not in the record on the original application, related in part to
different impairments than those at issue in the original application, and expressly stated that the ALJ saw no basis
for reopening the original application"))).

36

Second, Plaintiff's subsequent favorable decision was administered via form letter from
the SSA, and does not include any reasoning, or even any reference to the conditions that
rendered him disabled-let alone those that were present in Plaintiff's first application. Thus,
unlike the cases upon which Plaintiff relies, this court has no subsequent analysis to clarify the
SSA's decision-making process. Cf. Clemons, 2013 WL 4542730, at *6; Mikol, 554 F. Supp. 2d
at 503-05. As a result, this court has no way to determine-especially in light of the latersubmitted evidence indicating a deterioration of Plaintiff's conditions-whether the subsequent
favorable decision reflects a worsening of Plaintiff's conditions or a reexamination of the same
conditions and evidence.
Given these differences, the court finds that Plaintiff's subsequent favorable decision
does not constitute material evidence because it is not probative with respect to the relevant time
period. 9 Accordingly, Plaintiff's subsequent favorable decision does not warrant remand of this
case.
3.

Evidence Submitted as Part of Second Application

Finally, Plaintiff alleges that the evidence submitted in support of his second application
constitutes new and material evidence that justifies remand under 42 U.S.C. § 405(g). Much of
9

Additionally, the case law reflects doubt that a subsequent favorable decision can be considered new evidence for
sixth-sentence purposes in the first place. See Davidson v. Colvin, No. 1:12-CV-316 (MAD) (VEB), 2013
WL 5278670, at *IO (N.D.N.Y. Sept. 18, 2013) (adopted report and recommendation). For example, the Sixth
Circuit has held that a subsequent favorable decision is not itself new and material evidence under§ 405(g), but that
it may be supported by evidence that is new and material. Allen v. Comm'r of Soc. Sec., 561F.3d646, 652-54
(6th Cir. 2009). Other circuit courts have followed suit. See. e.g., Baker v. Comm'r of Soc. Sec., 520 F.
App'x 228, 229 n. *(4th Cir. 2013) (unpublished per curiam decision) (rejecting claimant's request for remand based
on a subsequent decision in light of claimant's failure to meet burden of showing evidence relied on in second
application was pertinent to the original appeal (citing Allen, 561 F.3d at 653)); Cunningham v. Comm'r of Soc.
Sec., 507 F. App'x 111, 120 (3d Cir. 2012) (unpublished per curiam decision) (finding remand or reversal based
upon a subsequent decision "would be appropriate only ifthat decision was based upon new and material evidence"
that claimant had good cause for not raising earlier (citing Allen, 561 F.3d at 652-53)). Recently, in Caron v.
Colvin, 600 F. App'x 43 (2d Cir. 2015) (summary order), the Second Circuit, too, cited Allen for the proposition
that "[t]he mere existence of the subsequent decision in [a claimant's] favor, standing alone, cannot be evidence that
can change the outcome of his prior proceeding." Id. at 44 (quoting Allen, 561 F.3d at 653). In Caron, however, the
court also noted that the subsequent favorable decision was not relevant to an earlier claim because it expressly
stated that it did not address the merits of previous claims and was limited to a later time period. Id.

37

the evidence Plaintiff submits, however, is not actually new, since it had been reviewed and
returned by the Appeals Council. As the court already discussed, see supra Part IV .A. l, the
Appeals Council returned these materials to Plaintiff-in accordance with SSA regulationswith instructions that ifhe wanted the SSA to consider whether he was disabled after
October 12, 2011, he would need to file a new claim. (See R. at 2.) Moreover, even ifthe
Appeals Council had not previously returned a large portion of this evidence, none of the
evidence submitted with Plaintiffs second application meets the new-evidence standard for
various other reasons.
First, evidence that predates Plaintiffs alleged onset date of May 15, 2010-such as the
USAMC Outpatient Record dated September 12, 2005, the USAMC Records from July 2002,
and the USAMC Outpatient Record dated June 10, 2008-should have been submitted with
Plaintiffs first application, or made available to the ALJ before she rendered her decision.
Because Plaintiff has not provided any explanation for why these documents were not submitted
earlier, he fails the good-cause prong of the three-part test for new and material evidence. See
Pollard, 377 F .3d at 193. Although Plaintiff argues that all of his proposed new evidence had
been previously submitted to the Appeals Council in this action, or as part of the second
application (Pl.'s Mem. at 24), the Appeals Council made no mention of these documents as
having been either considered or returned (see R. at 2).
Moreover, these documents do not shed any light on Plaintiffs symptoms during the
relevant time period. Nor do they evidence his now-claimed asthma, joint deformities,
rheumatoid arthritis, and psychiatric problems. Additionally, the USAMC Outpatient Record
dated September 12, 2005, is not material because it involves a diagnosis of a cough, sore throat,
and fever, none of which are conditions at issue in Plaintiffs application. (See Pl.'s App.

38

(Dkt. 26-1) at 415-17.) While Plaintiff does allege that his asthma and respiratory problems
were chronic and serious conditions-and a cough and sore throat could be related to these
conditions-these medical records are not probative, and therefore immaterial, with respect to
whether Plaintiff was disabled between May 15, 2010, and October 12, 2011. A cough and sore
throat in 2005 are simply too insignificant and temporary to be relevant to Plaintiffs alleged
chronic and severe conditions between May 2010 and October 2011. Furthermore, the USAMC
records from 2002 are duplicative and cumulative of what is already in the record regarding
Plaintiffs Achilles tendon surgery in July 2002. (Compare id. at 418-23, with R. at 230-35.)
And the USAMC records dated June 10, 2008, are not material because they involve treatment
primarily for abdominal pain, which is not a condition Plaintiff alleges entitles him to disability
benefits. (See Pl.'s App. at 424-26.)
Second, certain items that are from the relevant time period-namely, the prescription list
from Ozanam Charitable Pharmacy dated October 11, 2011, the Mobile County Health
Department Referral Consult Order dated September 30, 2011, the USAMC Outpatient Record
dated November 8, 2010, and the USAMC Emergency Department Medical Screening/Nursing
Assessment dated November 8, 2010-are duplicative and cumulative of information already
contained in the administrative record. (See id. at 428-31, 435, 583-85.) Specifically, the
Appeals Council had already incorporated the prescription list, which is itself cumulative of
reports that had previously been examined by the ALJ. Similarly, the November 8, 2010,
records were contained in the original administrative record that the ALJ reviewed prior to
rendering her decision. (See R. at 304-10.) The Notice of Appeals Council Action, dated
April 17, 2011, is also duplicative and cumulative of the copy that is already contained in the
administrative record. (Compare R. at 1-5, with Pl.'s App. at 569-75, repeated at 576-82.)

39

Third, the evidence that was submitted to and returned by the Appeals Council, but
Plaintiff later included in his second application, is not material. Included in this group were a
Behavioral Health Evaluation dated November 20, 2012; a Patient Summary dated
December 2012; records from MMHC dated November 20, 2012; records from the USAMC and
Mobile Infirmary dated May and June 2012; records from the University of South Alabama
Hospital dated November 2011; a M.A.P. application dated November 2011; records from New
York University Hospital; a listing of prescribed medication; and medical receipts that Plaintiff
submitted. (R. at 2.) The Appeals Council determined that these documents contained
information about a later time, and thus, did not affect whether Plaintiff was disabled beginning
on or before October 12, 2011. (Id.) Plaintiff then included these documents with his second
application.
Primarily, these documents postdate the relevant time period and, at best, illustrate that
Plaintiff's psychiatric and physical symptoms worsened after October 2011. It is true-as
Plaintiff argues (Pl. 's Resp. at 2)-that evidence cannot be rejected simply because it postdates
an ALJ decision; and newer evidence of the severity of a condition could imply that the
condition was more severe than believed at the earlier time. See Pollard, 377 F.3d at 193. The
documents at issue, however, compel no such conclusion. The bulk of these documents consists
of billing statements regarding medical procedures, prescriptions, medication lists, and blood test
results. (See Pl.'s App. at 445-47, 450, 458-61, 475-80.) The medication lists are cumulative of
information that was already contained in the administrative record and reviewed by the ALJ.
The many billing statements make no reference to the severity of Plaintiff's conditions either
during or after the relevant period. Likewise, the other documents in this set simply establish
that Plaintiff sought further medical treatment after the relevant time period. As a result, they

40

shed no new light on Plaintiff's conditions during the time period relevant for his first
application.
Similarly, the documents more directly related to the medical care Plaintiff sought for his
symptoms after the ALJ rendered her decision on October 12, 2011, are not material because
they are not probative of Plaintiff's symptoms during the relevant time period. The documents
primarily show that Plaintiff sought treatment for various ailments in 2011 and 2012, and suggest
only that Plaintiff's symptoms possibly worsened after the relevant time period. The instructions
and follow-up care form from USAMC dated November 29, 2011, contains largely illegible and
cursory instructions that appear to relate to Plaintiff's joint pain, asthma, and bipolar disorder.
(Id. at 433.) From what can be gleaned from the document, it appears Plaintiff was treated for
these conditions and prescribed medication. However, the document does not appear to discuss
the severity of Plaintiff's symptoms-let alone indicate that they were worse than originally
believed-between May 2010 and October 2011. Moreover, the severity of Plaintiff's

sy~ptoms

related to these conditions during the relevant time period is well documented in the
administrative record.
Plaintiff's application for M.A.P., which was verified by Dr. Pita on December 5, 2011,
demonstrates that Plaintiff applied for these services after the ALJ hearing on the basis of
disability caused by rheumatoid arthritis. (Id. at 437-43.) Plaintiff's difficulty getting around,
however, was also well documented at the time of the ALJ hearing, as Plaintiff indicated in his
August 7, 2010, Function Report.

CR:. at 158, 161.)

The ALJ was also aware that Plaintiff relied

on public transportation, and no longer had a driver's license because of a 1994 conviction for
driving under the influence. (See id. at 36.) More importantly, this document does not provide
any indication that Plaintiff's physical or mental limitations were worse than originally believed

41

by the ALJ. Indeed, in the application, Plaintiff stated that he was capable of walking to the bus
by himself, and the portion that Dr. Pita completed indicated that Plaintiff was able to climb
steps and walk a quarter of a mile without assistance. Consequently, this document does not
provide any material evidence with respect to Plaintiff's symptoms during the relevant time
period. This is especially true where Plaintiff has provided the court with no explanation for
why Plaintiff's acceptance into this program demonstrates Plaintiff's condition had deteriorated.
The June 2012 records from USAMC and its Mobile Infirmary are not material because
they involve treatment after the relevant time period. These documents include a discharge
planning assessment, which lists Plaintiff's diagnosis on five axes-one of which is asthma-but
does not describe Plaintiff's ailments in any detail. (Pl.' s App. at 451.) This set of documents
also includes a nursing discharge summary, which also contains no description of Plaintiff's
symptoms or conditions. (Id. at 452-56.) While it does include a list of medications, this list was
already included in the original administrative record. (See id. at 453.) Consequently, these
documents are not material because they fail to show that Plaintiff's conditions were worse than
originally believed during the relevant time period.
The same analysis applies to the documents related to the NYU Medical Center discharge
plan dated October 12, 2012. (See id. at 481-90.) The discharge plan includes another list of
medications, the majority of which were already contained in the administrative record.

CM.

at 482.) While this packet provides more detail than do the USAMC documents-by including a
clinical assessment of Plaintiff's shortness of breath and blood tests displaying abnormal
levels-they still lack sufficient information to conclude that Plaintiff's conditions were worse
than originally believed between May 2010 and October 2011. (See id. at 483-90.) At most,
these documents indicate that Plaintiff's condition deteriorated after the relevant time period.

42

This is also true of the Patient Summary dated December 2012, which lists Plaintiffs
"active problem[s]" and medications. (Id. at 499.) The conditions and medications listed are
largely cumulative of information that already contained in the administrative record. There are
also no details regarding Plaintiffs symptoms. As a result, this document fails to provide further
information about Plaintiffs conditions during the relevant time period. If anything, these lists
indicate that Plaintiffs conditions worsened after October 2011-in particular, Plaintiffs lungs
and psychiatric health. Still, none of these materials are probative with respect to Plaintiffs
original application.
The only document of this group that might theoretically provide any insight into the
severity of Plaintiffs conditions before October 2011 is the Behavioral Health Walk-In
Evaluation Note dated November 20, 2012. (Id. at 501-03.) This document indicates that
Plaintiff informed the facility that he had become increasingly irritable after being displaced
from his shelter, and that he was seeking medication. (Id. at 501.) Plaintiff further reported that
he attempted suicide twice, once in 2002 and again in August 2012. (Id.) While Plaintiff argues
this constitutes new evidence of the severity of his psychiatric conditions, this particular report
does not relate to the relevant time period. Instead, it demonstrates that Plaintiffs psychiatric
conditions became worse in late 2012-when they resulted in a suicide attempt ten months after
the ALJ's decision-and escalated when he was unable to take his medication. Moreover,
Plaintiffs characterization of the 2002 incident as a suicide attempt contradicts contemporaneous
reports (contained in the original administrative record) in which Plaintiff denied it was a suicide
attempt. (See R. at 237-45.) Additionally, the document's list of medications and diagnoses is
cumulative of what is already in the administrative record. Further, while the information about
Plaintiffs medical and psychiatric history and medications could be construed as relating to the

43

relevant time period, this information is also cumulative of evidence already contained in the
administrative record. Since this document does not shed any new light on Plaintiffs conditions
at the time of the ALJ's decision, it is not material.
In sum, since none of the documents returned by the Appeals Council and submitted as
part of Plaintiffs second application are both new and material with respect to Plaintiffs
conditions during the time period relevant to the first application, they do not justify remand.
Fourth, a number of documents submitted with the second application, but not to the
Appeals Council in the first instance, are not material to Plaintiffs first application because they
do not bear on the severity of Plaintiffs conditions during any time period. This group includes
letters from the SSA seeking Plaintiffs records from various medical institutions; letters from
"Gulf Study" related to Plaintiffs participation in a survey about the potential health effects of
oil-spill clean-up (related to his work after the Deepwater Horizon disaster in 2010); documents
related to Plaintiffs failure to pay rent on his storage facility and a restraining order he obtained
against U-Haul in August 2012; a statement dated November 2012 from Plaintiff that he is no
longer represented by attorney Kevin Green; forms signed by Plaintiff authorizing medical
facilities to disclose information to the SSA; letters from the SSA to Plaintiffs lawyers regarding
Plaintiffs hearing request; status sheets related to Plaintiffs claims; letters from the SSA to
Plaintiff reminding him to attend his scheduled examinations; fax cover sheets; invoices; and
blank forms related to Plaintiffs recent medical treatment, medications, and work background,
among other things. Because these documents fail to so much as mention Plaintiffs symptoms
and conditions, they are clearly not material.
Fifth, a number of documents that were not submitted to the Appeals Council but which
pertain in some sense to Plaintiffs conditions are not material because they postdate the relevant

44

time period. This group includes records related to a prescription for ProAir dated
August 6, 2012; a November 26, 2012, notice from FEGS WECARE Social Security Unit,
advising Plaintiff to call with any questions regarding his application; October 17, 2012, results
for blood and urine tests ordered by WECARE; and a copy of Plaintiff's NYS Benefit Card
printed on October 3, 2012. (See id. at 448-49, 463-66, 468, 474, 491, 492-93, 505.) These
documents are not probative of Plaintiff's conditions between May 15, 2010, and
October 12, 2011. While the blood test results might suggest a potential condition related to
Plaintiff's cholesterol levels, the administrative record already contains information about
Plaintiff's hypercholesterolemia, which is not a condition Plaintiff alleges to be severe. Thus,
none of the documents in this group provide any material evidence about the state of Plaintiff's
symptoms during the relevant time period.

*

*

*

*

Because none of Plaintiff's proffered evidence is new and material, and newly submitted
for good cause, the court DENIES Plaintiff's motion for remand pursuant to§ 405(g) on this
basis.
B.

Credibility Assessment

Plaintiff also argues that the ALJ failed to assess properly his subjective accounts of
symptoms with respect to leg pain, depression, joint deformities, and psychological problems.
(See Pl.'s Mem. at 26-29.) Specifically, Plaintiff contends that the ALJ first determined
Plaintiff's RFC and then compared that RFC to the record, which Plaintiff claims is legal error
justifying remand. (See id. at 28.) Further, Plaintiff argues that the ALJ failed to follow the
proper two-step analysis in assessing Plaintiff's credibility, which-according to Plaintiff-also
constitutes legal error warranting remand. (Id. at 28-29.) Plaintiff is correct on both counts: By
determining Plaintiff's RFC prior to examining Plaintiff's credibility, and failing to follow the
45

credibility assessment process set forth in SSA regulations, the ALJ committed legal error that
requires remand under 42 U.S.C. § 405(g).
Under certain circumstances, subjective reports of pain can support a finding of
disability. Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999); see also Genier v. Astrue, 606
F.3d 46, 49 (2d Cir. 2010) (per curiam) (noting ALJ must take a claimant's report of pain and
symptoms into account in rendering decision on disability (citing 20 C.F.R. § 416.929;
McLaughlin v. Sec'y of Health, Educ. & Welfare, 612 F.2d 701, 704-05 (2d Cir. 1980))).
However, an ALJ is not required to accept blindly a claimant's reports, but rather, "may exercise
discretion in weighing the credibility of the claimant's testimony in light of the other evidence in
the record." Id. at 49 (citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)). In assessing a
claimant's credibility, the ALJ's reasoning must be "set forth with sufficient specificity to permit
intelligible plenary review of the record." Hilsdorfv. Comm'r of Soc. Sec., 724 F.
Supp. 2d 330, 350 (E.D.N.Y. 2010) (quoting Williams v. Bowen, 859 F.2d 255, 260-61
(2d Cir. 1988)).
The regulations set forth a two-step process to evaluate a claimant's credibility. See 20
C.F.R. § 404.1529(a). First, the ALJ determines whether medical signs or laboratory findings
show the existence of an impairment which "could reasonably be expected to produce the pain or
other symptoms alleged." Id.; see also SSR 96-7p, 1996 WL 374186, at *1(July2, 1996). If the
statements about pain or other symptoms are unsupported by medical evidence, they cannot, on
their own, establish that the claimant is disabled. See 20 C.F.R. § 404.1529(a).
Where the medical evidence alone does not substantiate a claimant's subjective reports of
pain, the ALJ must evaluate the credibility of the claimant's statements in light of the following
factors: (1) claimant's daily activities; (2) the location, duration, frequency, and intensity of

46

claimant's pain or other symptoms; (3) precipitating and aggravating factors; (4) the type,
dosage, effectiveness, and side effects of any medication claimant takes or has taken to alleviate
pain or other symptoms; (5) treatment--other than medication--claimant receives or has
received for relief of his pain or other symptoms; (6) any measures taken to relieve the
symptoms; and (7) other factors concerning claimant's functional limitations and restrictions due
to pain or other symptoms. Id.§ 404.1529(c)(3); see also Hilsdorf, 724 F. Supp. 2d at 349-50.
If the medical evidence does substantiate a claimant's reported symptoms, the ALJ

proceeds to the second step of the analysis, and evaluates the "intensity and persistence" of the
claimant's symptoms to determine the extent to which they limit the claimant's capacity to work.
See 20 C.F.R. § 404.1529(c); see also, e.g., Monroe v. Astrue, No. 12-CV-1456 (WFK), 2014
WL 3756351, at *5 (E.D.N.Y. July 30, 2014) (describing the two-step analysis). In conducting
this evaluation, the ALJ examines not just objective medical evidence, but also other evidence
that may suggest a "greater severity of impairment than can be shown by objective medical
evidence alone." 20 C.F.R. § 404.929(c)(3). The ALJ also considers a claimant's statements
about the "intensity, persistence, and limiting effects" of the symptoms alleged "in relation to the
objective medical evidence and other evidence." Id.§ 404.929(c)(4).
In this case, the ALJ found that Plaintiffs medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that Plaintiffs "statements
concerning the intensity, persistence[,] and limiting effects of these symptoms are not credible to
the extent they are inconsistent with the above residual functional capacity assessment." (R.
at 14-15.) Thus, the ALJ correctly performed the first step of the analysis by determining that
Plaintiffs impairments could reasonably be expected to cause his alleged symptoms. The ALJ
erred, however, at the second step of the analysis when she failed to determine whether

47

Plaintiff's statements were substantiated by objective medical evidence. Instead, the ALJ found
that Plaintiffs statements were not credible because they did not match her determination of
Plaintiffs RFC. This is not the appropriate standard. See Genier, 606 F.3d at 50.
In fact, the ALJ committed legal error in her credibility analysis in two ways. First, she
applied the incorrect standard by comparing Plaintiffs statements to the RFC assessment she
created. Second, her analysis was limited to the single finding that Plaintiffs statements did not
match the RFC, and an observation that Plaintiff was attending school full-time while collecting
unemployment. The ALJ thus failed to follow the SSA regulations in a second way-by not
discussing or weighing Plaintiffs statements in light of the factors listed in 20 C.F.R. § 404.1529
(c)(3), or otherwise providing a record that would permit meaningful review.
1.

Use of ALJ' s Assessment of RFC

The ALJ first erred in finding that Plaintiffs "statements regarding the intensity,
persistence, and limiting effects of [his] symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity assessment." (Id. at 15-16.) The use of
this language "gets things backwards" since "the passage implies that ability to work is
determined first and is then used to determine the claimant's credibility." Bjornson v.
Astrue, 671 F.3d 640, 645 (7th Cir. 2012). 10 Other courts within this circuit have reached this
conclusion as well. See, e.g., Otero v. Colvin, No. 12-CV-4757 (JG), 2013 WL 1148769, at *7
(E.D.N.Y. Mar. 19, 2013) ("[I]t makes little sense to decide on a claimant's RFC prior to
assessing her credibility. It merely compounds the error to then use that RFC to conclude that a
claimant's subjective complaints are unworthy of belief."). Indeed, the governing regulation, 20

10

This language also mimics boilerplate statements that appear in numerous ALJ decisions. The Seventh Circuit
has repeatedly criticized such language as "meaningless boilerplate" where it "fails to link the conclusory statements
made with objective evidence in the record." Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (citing Parker v.
Astrue, 597 F.3d 920, 922 (7th Cir. 2010)).

48

C.F.R. § 404.1529(c) indicates that the credibility determination must occur before the residual
capacity assessment because "the credibility assessment is used to determine Plaintiff's
limitations and [residual functional capacity]." Faherty v. Astrue, No. 1 l-CV-02476 (DLI), 2013
WL 1290953, at *16 (E.D.N.Y. Mar. 28, 2013). Moreover, ALJs must make their RFC
determinations based upon all the evidence of record, "rather than self-formulate them and then
compare them to ... the record." Mitchell v. Colvin, No. 09-CV-5429 (ENV), 2013
WL 5676289, at *7 (E.D.N.Y. Oct. 17, 2013). Thus, an ALJ cannot claim that Plaintiff's
testimony is not credible because it fails to correspond to the RFC when that testimony is what
should be used to determine the RFC. Faherty, 2013 WL 1290953, at *16.
Here, the ALJ's conclusory statement at the second step of her credibility analysis
constitutes legal error because it indicates that she first established Plaintiff's RFC and then
made her credibility determination on the basis of that RFC assessment. This does not comply
with the SSA regulations, which state that a claimant's statements about his symptoms and the
credibility determination must precede the RFC assessment. See 20 C.F.R. § 404.1545(a)(3)
("[T]o assess your residual functional capacity ... [w]e will also consider descriptions and
observations of your limitation from your impairment(s), including limitations that result from
your symptoms, such as pain, provided by you ...."). Thus, the ALJ committed legal error.
2.

Failure to Permit Intelligible Review

The erroneous use of this language, however, does not require remand "[i]fthe ALJ has
otherwise explained [her] conclusion adequately." Torres v. Comm'r of Soc. Sec., No. 13CV-330 (JFB), 2014 WL 69869, at *14 (E.D.N.Y. Jan. 9, 2014) (quoting Filus v. Astrue, 694
F.3d 863, 868 (7th Cir. 2012)). But, as the court has already noted, an ALJ is required to set
forth the reasoning supporting her credibility findings "with sufficient specificity to permit

49

intelligible review of the record." Hilsdorf, 724 F. Supp. 2d at 350 (quoting Williams, 859 F.2d
at 260-61 ). Here, the ALJ did not.
In her decision, the ALJ affirmed that she had engaged in "careful consideration of the
evidence" prior to arriving at her assessment of Plaintiffs credibility. (Id. at 14.) While she did
describe both Plaintiffs testimony and the medical evidence (see id. at 14-17), the ALJ did not
sufficiently explain the reasoning underlying her credibility determination. In her sole reference
to Plaintiffs credibility--other than her erroneous comparison to Plaintiffs RFC-the ALJ
emphasized that Plaintiffs records indicated he was looking for a job as late as April 2011, and
that he had attended school full-time while collecting unemployment, noting that Plaintiff was
"basically training to do a job[] he claims that he is disabled from doing." (Id. at 17 .) As a
result, she concluded his credibility was "sorely lacking." However, this explanation does not
permit "intelligible plenary review of the record." Williams, 859 F .2d at 260-61.
Having found that the medical evidence did substantiate Plaintiffs reported symptoms,
the ALJ should have proceeded to evaluate the "intensity, persistence, and limiting effects" of his
symptoms to determine the extent to which they limited his capacity to work. See 20 C.F .R.

§ 404.1529(c); see also, e.g., Monroe, 2014 WL 3756351, at *5. In doing so, the ALJ should
have explicitly compared Plaintiffs reported symptoms about the "intensity, persistence, and
limiting effects" to all of the other evidence in the record to determine whether Plaintiffs
impairments might be more severe than indicated by the objective medical evidence alone.
See 20 C.F.R. § 404.929(c)(3), (4). However, the ALJ's decision does not reflect that she
conducted this analysis. For example, the ALJ should have discussed the effect on his credibility
of Plaintiffs well documented medical treatment during the time period in question, including
his various medications. See Correale-Englehart v. Astrue, 687 F. Supp. 2d 396, 437

50

(S.D.N.Y. 2010) (adopted report and recommendation). Instead, the ALJ's conclusory statement
reflects that she considered only Plaintiffs collection of unemployment benefits, attendance at
community college, and her own RFC assessment in appraising Plaintiffs credibility, rather than
"all of the available evidence" as stipulated by the SSA regulations. See 20 C.F.R.
§ 404.1529(c)(l).
While the ALJ need not "explicitly reconcile each piece of evidence" she considered in
her decision, it must be clear that she "weighed all of the evidence of [P]laintiff s symptoms,
both subjective and objective." Cf. Felix v. Astrue, No. 11-CV-3697 (KAM) 2012 WL 3043203,
at *9 (E.D.N.Y. July 24, 2012) (quoting Ahem v. Astrue, No. 09-CV-5543 (JFB), 2011
WL 1113534, at *6 (E.D.N.Y. Mar. 24, 2011)). Here, it is not clear that the ALJ weighed all of
the evidence, at least in a way that permits "intelligible review" of the record. The ALJ failed to
"identify what facts [s]he found to be significant, [or] indicate how [s]he balanced the various
factors." Kane v. Astrue, 942 F. Supp. 2d 301, 314 (E.D.N.Y. 2013) (quoting Simone v. Astrue,
No. 08-CV-488, 2009 WL 2992305, at *11 (E.D.N.Y. Sept. 16, 2009)); see also SSR 96-7P,
1996 WL 374186, at *2 (ALJ's credibility finding should be "sufficiently specific to make clear
to the individual and to any subsequent reviewers the weight the adjudicator gave to the
individual's statements and the reasons for that weight"). The court notes that failure to
methodically follow the two-step analysis does not automatically require remand. See Cichocki
v. Astrue, 534 F. App'x 71, 76 (2d Cir. 2013) (summary order) (finding that where the ALJ
"thoroughly explained" his credibility finding and the record enabled the court to deduce his
reasoning, remand was not necessary despite failure to follow two-step process (quoting Mogeur
v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983))). But in this case, the ALJ failed to discuss her

51

credibility determination in such a way that would enable this court to "glean the rationale" of
her decision with respect to both medical and other evidence in the record.

*

*

*

*

If an ALJ applies the incorrect legal standard, the court can remand the case for further

development of the evidence. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting
Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir. 1996)). But if application of the correct legal
standard "could lead to only one conclusion, there is no need to require agency consideration."
Johnson, 817 F.3d at 986; see Havas v. Bowen, 804 F.2d 783, 785 (2d Cir. 1986)). Still, even
where there might be substantial evidence in support of the SSA's decision, where there is "a
reasonable basis for doubt whether the ALJ applied the correct legal principles," upholding a
finding that Plaintiff is not disabled "creates an unacceptable risk that a claimant will be deprived
of the right to have [his] disability determination made according to the correct legal principles."
Johnson v. Bowen, 817 F .2d 983, 986 (2d Cir. 1987).
Here, the ALJ appears to have committed legal error by failing to comply with the SSA
regulations that govern the assessment of a claimant's credibility. First, the ALJ failed to make
her credibility finding prior to determining Plaintiffs RFC. Second, she amplified this error by
failing to explicitly weigh Plaintiffs subjective account against both the medical and other
evidence in the record. Instead, her written decision reflects that the ALJ considered only her
formulation of Plaintiffs RFC, along with the fact that Plaintiff continued to attend school and
collect unemployment, to determine that Plaintiff was not credible. In the absence of any further
discussion of the record specifically with respect to Plaintiffs credibility, this court cannot find
that-regardless of these errors-application of the correct standard would lead to only one
possible conclusion. Thus, the ALJ's failure to comply with SSA regulations and fully articulate

52

the rationale underlying her credibility determination constitutes legal error that necessitates
remand.
On remand, the ALJ must conduct the appropriate two-step analysis for determining
Plaintiffs credibility as set forth in 20 C.F.R. § 416.929(b). The ALJ is further instructed to
provide a more explicit analysis of Plaintiffs subjective complaints. This re-evaluation of
Plaintiffs credibility should be based upon all of the record evidence. If the ALJ continues to
find Plaintiff's claims to be incredible, she must cite to specific record evidence that contradicts
Plaintiffs claims about the nature and severity of his conditions.

V.

CONCLUSION
For the reasons set forth above, the court concludes that none of the evidence Plaintiff has

presented constitutes new and material evidence justifying remand. However, the court further
concludes that the ALJ committed legal error when she first assessed Plaintiffs RFC before
comparing it to Plaintiffs subjective testimony. Moreover, the ALJ compounded this error by
failing to articulate with specificity the weight she assigned to the evidence in evaluating
Plaintiffs credibility. These errors warrant remand.
Accordingly, the Commissioner's motion for judgment on the pleadings is DENIED,
Plaintiffs cross-motion for judgment on the pleadings is GRANTED IN PART, and the case is
REMANDED to the SSA for re-evaluation of Plaintiff's credibility in accordance with SSA
regulations and in light of the entire record.
SO ORDERED.

s/Nicholas G. Garaufis
Dated:

Brookl~

ilacHOLAS G. GARAUfS United States District Judge

New York
August 1_, 2015

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