Estela-Rivera v. Colvin

Filing 24

MEMORANDUM & ORDER: For the reasons stated in the attached opinion, the Court hereby GRANTS Plaintiff's Cross-Motion for Judgment on the Pleadings 20 and DENIED the Commissioner's Motion 17 . Pursuant to the fourth sentence of 42 U.S.C. § 405(g), the case is remanded to the Commissioner for further proceedings consistent with this opinion. Ordered by Judge Pamela K. Chen on 8/20/2015. (Chiang, May)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SANDRA ESTELA-RIVERA,
Plaintiff,
MEMORANDUM & OPINION
- against -

Case No. 13 CV 5060 (PKC)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Defendant.
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PAMELA K CHEN, United States District Judge:
Plaintiff Sandra Estela-Rivera (“Estela-Rivera” or “Plaintiff”) commenced this action
under 42 U.S.C. § 405(g), seeking judicial review of the decision of the Defendant Carolyn
Colvin, Commissioner of Social Security (the “Commissioner”) denying Estela-Rivera’s claim
for Social Security disability benefits. (Dkt. 1.) The Commissioner moves for judgment on the
pleadings, affirming her decision, and Estela-Rivera cross-moves for judgment on the pleadings,
reversing the Commissioner’s decision and remanding for a new hearing and decision. (Dkt. 18,
21.) For the reasons set forth below, the Court grants Estela-Rivera’s cross-motion, and denies
the Commissioner’s motion.
BACKGROUND
I.

Claimant’s Preliminary History and Employment History
Plaintiff was born on September 26, 1970. (Tr. 135.) In 1992, at the age of 21, Plaintiff

suffered a cerebrovascular accident (“CVA”), commonly known as a stroke, which was the start
of her chronic history of blood disorder.

1

(Tr. 296.)

“Tr.” refers to the Administrative Transcript, Dkt. 6.

Plaintiff underwent brain magnetic

resonance imaging (“MRI”) in September 24, 1992 and October 1, 1992, which showed
infarction in the distribution of the right posterior cerebral artery (“PCA”), right posterior
thalamus, and right occipital cortex.

(Id.)

She was diagnosed with a potential factor X

deficiency (a blood disorder causing clotting) and placed on Coumadin therapy.2

(Id.)

Unfortunately, Plaintiff discovered that she was pregnant while on Coumadin and the pregnancy
had to be aborted. (Id.) A 1994 follow-up MRA3 indicated normal results, and Plaintiff ceased
taking Coumadin approximately at that time. (Id., Tr. 266.) She also married about that time, at
age twenty-four. (Tr. 22.) In 2003, Plaintiff suffered a severe right temporal headache. (Tr.
297.) A follow-up brain MRI on August 26, 2003 showed an old right PCA infarction, as well as
a difficult-to-characterize focal intensity in the superior mid pons that could indicate a focal
acute small infarction. (Id.)
Plaintiff graduated high school, and obtained a bachelor’s degree in international
marketing at Baruch College in 1998.

(Tr. 23, 181.)

Plaintiff worked as a contracts

administrator for Fidessa Corporation from May 2004 to October 2006, as a marketing and
logistics manager for Maruberi America Corporation from October 2006 to August 2007, and as
cashier at a retail store, the Children's Place, from October 2009 to May 2010. (Tr. 172, 180.)
She has a history of sustained and continued employment, as indicated by the record of her gross
annual wages from 1985 to 2010. (Tr. 157-167.) Plaintiff married at the age of 24, and has two
daughters, ages 15 and 12. (Tr. 22.) She and her family live in Staten Island. (Id.)

2

Coumadin therapy uses the drug Coumadin, generically named Warfarin, to prevent harmful
blood cuts and slow blood coagulation time. Karen Fiumara & Samuel Z. Goldhaber, A
Patient’s Guide to Taking Coumadin/Warfarin, www.ahajournals.org/content/119/8/e220.full
3

An MRA, or magnetic resonance angiogram, is a type of MRI that provides a picture of a
person’s blood vessels. See www.webmd.com/heart disease/magnetic-resonance-angiogram-mra
(last viewed on August 16, 2015).
2

II.

Treating Physician Medical Evidence
A.

Evidence Prior to Plaintiff’s Alleged Onset Date of May 1, 2010

On November 2, 2009, Plaintiff went to the Staten Island University Hospital’s (“SIUH”)
emergency room, complaining of a headache with sensitivity to light, nausea, and dizziness. (Tr.
228-36.) Upon examination, Plaintiff was alert, cooperative, fully oriented, and in no acute
distress. (Tr. 229, 232.) The attending physician noted her history of a CVA in 1992 and factor
X deficiency. (Tr. 231.) A lumbar puncture (spinal tap) was performed on Plaintiff, with
negative results. (Tr. 232, 297.) A computed tomography (“CT”) scan of Plaintiff’s brain and
head, taken the same day, showed findings of venous thrombosis, consistent with an old infarct
in the medial right occipital lobe. (Tr. 234, 253.) Plaintiff was discharged to her home in
improved condition. (Tr. 230, 232.)
On November 5, 2009, Plaintiff saw neurologist Michael Ng, M.D., for evaluation of her
continuing severe headache. (Tr. 296-98.) The headache had begun four days earlier, with
nausea and photo and phonophobia. (Tr. 297.) Dr. Ng noted her prior history of CVA and
headaches, as well as the results of her November 2, 2009 CT scan at SIUH showing an old
infarct. (Id.) Dr. Ng found Plaintiff had left upper quadrantanopsia, i.e., she had partial blindness
in the upper left quadrant of her field of vision, and some muscular weakness in the left deltoid.
(Tr. 298.) Plaintiff was otherwise physically normal throughout the rest of the examination.
(Id.)

Dr. Ng assessed Plaintiff as having an old right-sided PCA stroke at age 21; a

“questionable” factor X deficiency, noting that Plaintiff was not currently on antiplatelet or
anticoagulation therapy; and right-sided fronto-temporal headache with a migrainous-type
quality. (Id.) Dr. Ng recommended evaluation for venous sinus thrombosis, arterial thrombosis,
and/or any other structural brain pathology, to determine whether the headache might indicate

3

another stroke, rather than simply a migraine. (Id.) Dr. Ng prescribed Indocin and seven days of
Prednisone, to be tapered.
Dr. Ng additionally ordered a MRI, a MRA, and a magnetic resonance venography
(“MRV”) all to be taken of Plaintiff’s brain. (Id.) The November 6, 2009 MRI showed chronic
signal changes in the right occipital lobe, likely due to remote infarction; possible chronic
lacunar infarct in the right thalamus; and low lying cerebellar tonsils without frank Chiari
malformation 4. (Tr. 276.) The MRA showed no evidence for intracranial vascular stenosis. (Id.)
However, the radiologist noted some mild bulbous prominence of the anterior communicating
artery and focal prominence of the basilar artery origin of the left posterior cerebral artery, and
recommended a CT angiogram brain scan to rule out a possible aneurysm. (Tr. 275; see Tr.
238.) The MRV of the same date found nonvisualization over a portion of the left posterior
transverse sinus, which could reflect focal left transverse sinus thrombosis. (Tr. 275-77.)
On November 10, 2009, Plaintiff returned to SIUH, complaining of a severe headache
that woke her from sleep. (Tr. 237-52.) The pain from the previous days’ headache had
migrated into her shoulders. (Tr. 237.) Dr. Ng sent her to the hospital for anticoagulation therapy
and to rule out a possible aneurysm. (Tr. 239.) A November 11, 2009 CT angiogram showed no
evidence of aneurysms or stenosis.

(Tr. 248; see also Tr. 239.)

A November 12, 2009

echocardiogram showed normal left ventricle systolic function, with an ejection fraction of 55%
to 65%, and tricuspid regurgitation of 1+. (Tr. 251-52; see also Tr. 239.) On examination,
Plaintiff was awake, alert, and fully oriented, with lungs, cardiovascular system, abdomen,
extremities, and neurologic all functioning within normal limits. (Tr. 238, 243-44, 246-47.) Her

4

A Chiari malformation is “a condition in which brain tissue extends into [a person’s] spinal
canal. http://www.mayoclinic.org/diseases-conditions/chiarimalformation/basics/definition/con-20031115 (last visited on August 16, 2015).
4

basic metabolic profile was within normal limits; and her protein-S and protein-C functions were
normal. (Tr. 238-39.) Plaintiff was started on Heparin and Coumadin. (Tr. 239.) Plaintiff had
no further headaches and had no bleeding on anticoagulation, and was discharged on November
15, 2009 in stable condition. (Id.) The diagnosis on discharge was that her headache had
indicated cerebral venous thrombosis (“CVT”) 5, to be treated by anticoagulation therapy; that
Plaintiff had a history of CVA 18 years earlier; and that hypercoagulable state was ruled out.
(Id.) Plaintiff was instructed to continue anticoagulation therapy with Coumadin and to follow up
with Dr. Ng and the anticoagulation clinic; her goal INR 6 was between 2 and 3. (Id.)
On November 16, 2009, Plaintiff again saw Dr. Ng, reporting no headaches. (Tr. 299.)
The notes are partly illegible. He assessed CVT, likely hypercoagulable state, and a CVA at age
21. (Id.)
On November 19, 2009, Plaintiff started at the SIUH anticoagulation clinic (Tr. 266.)
Plaintiff had been on Coumadin following a CVA 17 years earlier, but had been off Coumadin
for the past 15 years. (Id.) Plaintiff’s INR on that date was 1.2. (Id.) Plaintiff’s prescribed
Coumadin dosage increased, and she was told to avoid Vitamin K in foods. 7 (Id.)
From November 19, 2009 through December 19, 2011, Plaintiff attended the outpatient
anticoagulation clinic treatment 70 times. (Tr. 215-16.) Her INR was out of range on 32
occasions, with a one-time high of 6.1 on November 28, 2011, and a one-time low of 1.1 on June
5

According to the American Heart Association and American Stroke Association, CVT is an
“uncommon form of stroke.” Gustavo Saposnik et al., Diagnosis and Management of Cerebral
Venous Thrombosis, Stroke, Apr. 2011, at 1158-59.
6

INR, or international normalized ratio, is the standard metric to express the time it takes blood
to clot. See A Patient’s Guide to Taking Coumadin/Warfarin, supra at footnote 6.

7

Vitamin K inhibits the action of Coumadin in adjusting blood coagulability. A Patient’s Guide
to Taking Coumadin/Warfarin, supra at footnote 6. Where Coumadin increases coagulation
time, making clots less likely and increasing the likeliness of bleeding, Vitamin K decreases
bleed time and encourages blood clotting. (See id., Tr. 266-74.)
5

9, 2010. (Id.) Prior to her alleged onset date, Plaintiff was advised on several occasions at the
clinic to either change her Coumadin dosage or adjust her intake of Vitamin K foods to adjust
her INR levels. (Tr. 268, 272.) The clinic repeatedly counseled Plaintiff on the risks of having
an INR either too high or too low. (Tr. 268-74.) Too high, and excessive bleeding might occur;
too low, and a blood clot might form that could again cause a stroke. (Id.) Plaintiff was
compliant with treatment, and verbalized her understanding of the instructions. (Tr. 269.)
On January 29, 2010, Dr. Ng again saw Plaintiff, who reported no recent headaches. (Tr.
285.) Rather, she reported dizzy spells, with the last one having occurred on January 5, 2010.
(Id.) She reported that she was exercising, eating healthier, and taking Coumadin. (Id.) Her
examination was within normal limits. (Id.) Her INR was 2.2. (Id.) Dr. Ng confirmed an
assessment of CVT, a protein-S deficiency with slight beta-2 glycoprotein, and CVA at age 21.
(Id.) He recommended that Plaintiff continue life-long Coumadin use to keep her INR in the 2-3
range. (Id.)
B.

Evidence on or after Alleged Onset Date of May 1, 2010
1. Dr. Ng

Dr. Ng ordered another round of brain imaging for Plaintiff which was conducted on May
13, 2010 (an MRI, MRV, and MRA). (Tr. 278.) All of the studies showed no significant change
from Plaintiff’s November 6, 2009 brain studies. (Tr. 278-30, 287, 288-90.) There was no
evidence of aneurysms or stenosis. (Tr. 289.) The MRI impression showed no acute infarct and
only an old lacunar infarct in the right thalamus. (Tr. 287.) There were signs consistent with
encephalomalacia and/or gliosis in the right occipital lobe most likely from prior old ischemic
changes. (Id.) The MRV showed no signal flow enhancement in the left transverse sinus, which
could represent slow or no flow. (Tr. 278.) There was normal signal flow in the superior sagittal

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sinus, bilateral sigmoid sinuses, internal jugular veins, bilateral internal cerebral veins, basal
veins, and veins of Galen. (Id.)
On May 20, 2010, Dr. Ng met with Plaintiff to discuss the laboratory data. (Tr. 283.) Dr.
Ng noted that Plaintiff’s recent MRI/MRA/MRV studies showed no change. (Id.) Plaintiff
reported taking Ibuprofen the past four days for headaches. (Id.) Examination was within
normal limits with some shoulder tenderness. (Id.) Her INR was 4.3. (Id.) Dr. Ng’s assessment
and recommendations were mostly unchanged from his 2009 assessment, but the record is partly
illegible and any additional changes cannot be read. (Id.)
Plaintiff underwent another set of imaging tests to follow-up on her blood clot condition
in October 2010. On October 29, 2010, brain MRI and MRV studies revealed no significant
change from the May 13, 2010 study. (Tr. 300-02.)
In 2012, after Plaintiff’s administrative hearing with the ALJ, Dr. Ng responded to the
ALJ’s request for more development of Plaintiff’s medical record of physical impairments with a
letter. The full text of the letter is reproduced here:
Ms. Rivera is under my care for the treatment of severe headaches four to five
times a month. She is taking Tramadol which seem [sic] to keep them under
control.
If you have any questions please feel free to contact my office. (Tr. 360.)
2. Dr. Auyeung
On May 13, 2010, Plaintiff saw Dr. Nelson Auyeung, M.D. 8 (Tr. 291-93.) Plaintiff
reported persistent pain and shoulder pain. (Tr. 292.) The entry is mostly illegible. Plaintiff
continued to see Dr. Auyeung regularly after her alleged onset date for general care, visiting him

8

The record indicates that Dr. Auyeng's practice is in pediatrics, infectious diseases and allergies.
(Tr. 294.)
7

four more times in 2010. (Tr. 292-93.) Dr. Auyeung prescribed Plaintiff, inter alia, Ambien and
Zoloft, in September 2010 and January 2011, respectively. (Tr. 218-19.) By August 29, 2011,
Dr. Joel Breving, a psychiatrist, had begun to address Plaintiff’s antidepressant regimen. (Tr.
219.) Dr. Auyeung continued to refill Plaintiff’s Ambien prescription for her until at least
December 13, 2011. (Id.)
3. Dr. Breving
Plaintiff began seeing Dr. Breving for symptoms of mental illness on April 29, 2011.
(Tr. 343.) Dr. Breving reported that he saw Plaintiff monthly to follow up on her medications.
(Tr. 344.) On December 19, 2011, Dr. Breving completed a Mental Impairment Questionnaire.
(Tr. 343-48.)
disturbance;

He listed her symptoms as appetite disturbance with weight change; sleep
emotional

lability;

anhedonia;

psychomotor

agitation

or

retardation;

guilt/worthlessness; difficulty thinking or concentrating; social withdrawal or isolation;
decreased energy; and blunt, flat, or inappropriate affect. (Tr. 343-44.) Dr. Breving reported
clinical findings of significant dysphoria, sadness, depressed mood, anxiety, psychomotor
retardation, and social isolation. (Tr. 344.) Dr. Breving noted that Plaintiff had been prescribed
Zoloft, which had improved her condition without any side effects. (Tr. 345.)

Dr. Breving

reported Plaintiff as having major depressive disorder that was moderate and recurrent. (Tr.
343.) Dr. Breving also gave Plaintiff a global assessment of functioning (“GAF”) of 75. 9 (Tr.

9

“GAF refers to a person’s overall level of functioning and is assessed using a scale that
provides ratings in ten ranges, with higher scores reflecting greater functioning.” Corporan v.
Comm’r of Soc. Sec., 12 CV 6704, 2015 WL 321832, at *12 n.9 (S.D.N.Y. Jan 23, 2015) (citing
Diagnostic and Statistical Manual of Mental Disorders (“DSM–IV–TR”) at 27 (4th ed., text
revision, 2000)). A GAF between 71 and 80 indicates that “[i]f symptoms are present, they are
transient and expectable reactions to psycho-social stressors (e.g. difficulty concentrating after
family argument); no more than slight impairment in social, occupational, or school
functioning.” Id. at 34.
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343.) He opined that Plaintiff’s prognosis was “fair” and that her condition was expected to last
at least 12 months. (Tr. 346.)
Dr. Breving opined that Plaintiff’s impairment or treatment would cause her to be absent
from work about once per month. (Id.) Plaintiff did not appear to have any reduced intellectual
functioning. (Id.) He assessed that Plaintiff had moderate restriction in activities of daily living;
marked difficulties in maintaining social functioning; frequent deficiencies of concentration,
persistence, or pace; and had once or twice experienced an episode of deterioration or
decompensation in a work or work-like setting. (Tr. 347.) He opined that Plaintiff would have
difficulty working at a regular job on a sustained basis because she had decreased abilities to
interact with peers or the public, respond appropriately to supervisors, organize/set realistic
goals, and understand simple/complex instructions. (Tr. 346.)
III.

Consultative Medical Evidence
A.

Dr. Chitoor Govindaraj

On December 14, 2010, Dr. Chitoor Govindaraj, M.D., performed a consultative medical
examination of Plaintiff. (Tr. 312-15.) Plaintiff reported to Dr. Govindaraj that she had stopped
working between November and December 2010. (Tr. 312.) She claimed to have blood clots in
1992 and November 2009, and that the second time she was diagnosed with protein-S deficiency
disorder, and placed on lifelong anticoagulation therapy. (Tr. 312-13.) She also reported taking
Ambien for sleep as needed, and Ultram for headaches as needed. (Tr. 313.) On examination,
Dr. Govindaraj found normal lungs; absence of heart murmur, gallop, click, or rub; normal range
of motion in the spine and joints; ability to bend down and touch the floor; normal straight leg
raising; no evidence of muscle spasm; cranial nerves within normal limits; normal motor system,
sensory system, and reflexes; normal hand dexterity; normal gait; normal posture; no need of a

9

cane for ambulation; and no cyanosis, clubbing, contractures, instability, redness, edema, heat or
swelling. (Tr. 313-14.) Dr. Govindaraj diagnosed history of protein-S deficiency disorder with
some cerebral blood clot in the brain, on anticoagulation therapy. (Tr. 314.) He opined that
Plaintiff’s prognosis was good, that she was medically stable, and that she was cleared for
occupation without restriction. (Id.)
B.

Dr. Radha Sankar

On December 14, 2010, Dr. Radha Sankar, M.D., performed a consultative psychiatric
evaluation of Plaintiff. (Tr. 316-18.) Plaintiff denied major depression or any prior psychiatric
history. (Tr. 317.) She reported sleep difficulties, treated with Ambien; inconsistent appetite;
feeling very fatigued all of the time; and severe pain in her shoulders. (Tr. 317.) She reported
that, when she had a headache, she felt fatigued, irritable, and depressed, and would isolate
herself, but that she otherwise felt pretty good about herself. (Id.) She reported last working in
December 2010. (Id.) She had two children in grade school and middle school. (Id.) Plaintiff
stated that when she had a headache and backache, her ability to function became somewhat
limited, but she was otherwise able to cook, clean, shop, and take care of her children. (Tr. 318.)
Plaintiff reported that she had driven herself to the consultative examination. (Tr. 316.)
Dr. Sankar’s mental status examination showed that Plaintiff was cooperative, fully
oriented, neatly dressed, and comfortable, with good eye contact; and that her speech was
spontaneous, coherent, and relevant. (Tr. 317.)

Dr. Sankar perceived no thought disorder; no

hallucinations or delusions; neutral mood; appropriate affect. (Id.) Plaintiff maintained adequate
intellectual functioning, a “good” fund of knowledge, “good” abstraction, ability to do serial 7s
with “some difficulty,” “good” recent and remote memory, with the ability to recall three digits
forward and backward without difficulty, good insight, and adequate judgment. (Id.) Dr. Sankar

10

diagnosed no mental impairments, only noting that Plaintiff was being treated for a blood
disorder. (Tr. 318.) She stated that Plaintiff had a history of stroke treated by anticoagulants,
and that she went through mood changes depending on how she felt physically, with severe
headaches and shoulder pains. (Id.)
Dr. Sankar opined that Plaintiff was able to take care of herself and had no major
psychiatric problems. (Id.) Dr. Sankar’s opinion was that Plaintiff could not maintain a regular
schedule or learn new tasks, but could follow and understand simple directions, perform simple
tasks, and did not have difficulty maintaining concentration or attention. (Id.)
C.

Dr. Yakov Burstein

On December 27, 2010, state agency psychological consultant, Dr. Yakov Burstein,
Ph.D., completed a Psychiatric Review Technique, by consulting Plaintiff’s medical records.
(Tr. 319-32.) He found no severe mental impairment. (Tr. 319.)
IV.

Non-Medical Evidence
A.

Barbara Fried, LCSW

On March 5, 2011, Plaintiff saw a therapist 10 at New Pathways Counseling Center
(“NPCC”). (Tr. 355-56.) Plaintiff reported that she had no prior counseling. (Tr. 355.) She
complained of stressful medical problems. (Tr. 356.) She had headaches and was depressed
when she was unable to do what she needed to do. (Id.) Her primary care physician, Dr.
Auyeung, had prescribed Ambien for sleep issues, but she did not like it. (Id.) She reported a
loss of interest in everything. (Id.) She reported that she had recently been prescribed Zoloft, but
admitted that she had not been taking it consistently. (Id.) The therapist found adjustment issues
with depressive symptoms. (Id.)

10

This therapist was not identified in the record.
11

On April 2, 2011, at NPCC, Plaintiff saw social worker Barbara Fried, LCSW. (Tr. 357.)
Plaintiff complained of feeling lethargic and having no interest in anything. (Id.) She was
concerned about her children doing well in school. (Id.) On April 11, 2011, Plaintiff saw Fried
and reported sleeping poorly. (Id.) She stated that she stayed at home, did not socialize, worried
about her children’s values, and had difficulty doing her chores. (Id.) On April 18, 2011,
Plaintiff saw Fried, reporting that she had experienced two strokes and was depressed, tired, and
anxious as a result of her continued medical concerns, and that she had frequent headaches that
caused her to be incapacitated. (Id.) On June 9, 2011, Plaintiff reported to Fried that she was
very happy with her children’s progress in school. (Tr. 358.) She enjoyed coming into the city
when she was feeling well, and loved to show her children new things, but these trips were
infrequent. (Id.) Fried noted that “[Plaintiff’s] fears seem to focus on her children.” (Id.) On
July 26, 2011, Plaintiff visited Fried and reported that she rested during the day and was taking
medications for anxiety, but experienced panic attacks and dizziness at times. (Id.) Fried noted
that Plaintiff appeared more relaxed. (Id.)
On October 18, 2011, Plaintiff returned to Fried. (Tr. 359.) Plaintiff reported that she
had called for an appointment because she felt anxious. (Id.) She reported that she sometimes
thought she might be pressuring her children too much, but felt that this was the proper way to
raise children. (Id.) On December 13, 2011, Plaintiff visited Fried once more, discussing
cousins from whom she had grown distant due to an inheritance that had been left to her. (Id.)
On January 18, 2012, Fried completed a mental impairment questionnaire on Plaintiff.
(Tr. 349-54.) She noted that her contact with Plaintiff had been “sporadic.” (Tr. 349.) Fried
assessed Plaintiff as having a GAF of 60, and that in the past year, Plaintiff’s highest GAF was
62. (Id.) Fried listed Plaintiff’s symptoms as severe headaches, sleep disturbance, emotional

12

lability, recurrent panic attacks, social withdrawal or isolation, decreased energy, persistent
irrational fears, generalized persistent anxiety, hostility, and irritability. (Tr. 349-50.) Under
“Clinical Findings,” Ms. Fried noted that Plaintiff reported joint pains in her shoulders and
wrists, nosebleeds, bruising easily, a second, recent stroke, and side-effects from medications.
(Tr. 350.) Plaintiff was consequently anxious and fearful, and she experienced panic attacks.
(Id.) Ms. Fried stated that Plaintiff’s psychiatrist’s notes would document the side-effects of
Plaintiff’s medication. (Tr. 351.) Plaintiff’s issues were chronic, but she was cooperative and
responsive to treatment. (Id.) Fried found that Plaintiff’s prognosis was “guarded to fair,” and
her impairment was expected to last at least 12 months. (Tr. 352.) She opined that Plaintiff’s
impairments or treatment would cause her to be absent from work more than three times per
month. (Id.) She assessed that Plaintiff had a marked restriction of activities of daily living;
moderate difficulties in maintaining social functioning; and frequent deficiencies of
concentration, persistence, or pace; and that Plaintiff continually experienced episodes of
deterioration or decompensation in work or work-like settings. (Tr. 353.) Ms. Fried opined that
Plaintiff would have difficulty working at a regular job on a sustained basis because she had a
blood disorder that caused clots and had resulted in two strokes. (Tr. 352.)
B.

Plaintiff’s Self-Reporting and Testimony

In a function report dated September 28, 2010, a few months after her claimed onset date
of May 1, 2010, Plaintiff reported that she had no memory trouble. (Tr. 194.) She had no
difficulty paying attention, and she had no problem following spoken or written instructions, or
getting along with bosses or people in authority. (Tr. 195.) Plaintiff reported spending time with
her family and keeping in touch with friends by telephone and computer daily. (Tr. 192.) She
no longer socialized with friends outside of her house, spending most of her time at home, out of

13

her concern for tiring easily and occasional embarrassment from her visible bruises. (Tr. 19293.) Similarly, Plaintiff could no longer pursue her hobby of running, because she tired too
easily and it was painful and dizzying. (Tr. 192.) Plaintiff could not stand or sit for long periods
at a time without pain or risk of blood clots. (Tr. 189.)
Plaintiff reported that she could iron and wash dishes. (Tr. 190.) She did not need help
to take care of her personal needs or medication regimen. (Id.) She went out five times a week,
either walking or driving, and she could go out alone. (Tr. 191.) She went grocery shopping
about an hour each week. (Id.) However, she needed help to carry and put away the groceries
once home. (Tr. 190.)

She could walk one block before requiring rest, and did not need any

device to aid her mobility. (Tr. 195.) Plaintiff occasionally suffered blurred vision. (Tr. 194.)
She avoided handling knives due to the risk of excessive bleeding, which impeded her ability to
cook. (Tr. 190.) At times Plaintiff was too weak or dizzy to dress herself or get in and out of the
shower without help from her husband. (Tr. 189.)
A year and a half later at the January 27, 2012, ALJ hearing, Plaintiff testified that she
could no longer work because she had experienced two strokes before turning age 40, the second
one occurring in November 2009. (Tr. 23.) She had been diagnosed with protein-S deficiency,
which caused her blood clots, and accordingly, she was on indefinite anticoagulant Coumadin
therapy. (Tr. 23, 26.) Occasionally, Plaintiff had to take Heparin in conjunction with Coumadin
to control her coagulation levels. (Tr. 27.) If her INR became too high, she developed bruising
on her legs and back, became very tired, had shoulder and wrist pain, and had nosebleeds and
bleeding gums. (Id.) She reported that, in the prior three months, her INR had been all over the
chart, and that she had experienced her highest record INR yet. (Tr. 28.)

14

In November 2011, Plaintiff became depressed and anxious. (Tr. 30.) At that time, she
began seeing a psychiatrist and a therapist at the recommendation of her primary care physician.
(Tr. 23, 30.) Her primary care physician also prescribed her Zoloft. (Tr. 30.) Plaintiff also took
Ambien by prescription for her sleep problems, which her physician explained to her as a
reaction to bodily stress. (Tr. 23, 189.) The Ambien caused her to wake up in the morning
feeling groggy and unfocused. (Tr. 23.) Plaintiff felt unsafe to drive in the morning, so she could
not drive her children to school. (Tr. 28.) Plaintiff had recurring monthly episodes as of the date
of the hearing, in which she locked herself in her room and became incapable of socializing and
interacting with others, including her children. (Tr. 30-31.)
At the hearing Plaintiff also testified that the strokes affected her peripheral vision on her
left side. (Tr. 25.) She also testified to experiencing severely painful headaches since her second
stroke that did not respond to over-the-counter medication, for which her neurologist prescribed
Ultram. (Tr. 24.) When Plaintiff suffered a headache, she would have to lie down for an hour or
two at a time, because the Ultram gave her a “dizzy druggy feeling.” (Tr. 26.) If the headache
persisted, she would take more medicine after four to six hours. (Id.) She stated that she took
Ultram two to three times per week. (Tr. 25.)
Plaintiff testified that she did not have a problem sitting. (Tr. 30.) She estimated that she
could comfortably lift about 20 pounds. (Id.) She could walk about three blocks, unless her INR
was too high, in which case, her joints hurt, and she could not walk even one block. (Tr. 29.)
She estimated that she could stand for 30 or 40 minutes at a time. (Id.)
Plaintiff testified that she lived with her husband and children in a home. (Tr. 22.) On a
typical day, she woke up and dressed her daughters for school. (Tr. 28.) She walked each one
separately one block to the bus stop and helped them with their homework in the evenings. (Id.)

15

Plaintiff usually took a nap each day, because she was groggy from her Ambien. (Tr. 28.)
Usually she slept for about an hour, but sometimes she slept all day until her husband returned
from work. (Tr. 28, 30-31.) She cooked dinner two or three times per week, when she felt she
had enough energy, but otherwise her husband cooked. (Tr. 28-29.) She went to the grocery
store about once per week, sometimes with her husband. (Id.) She did laundry, but she relied on
her husband to carry the laundry bin up and down the stairs. (Tr. 29.)
Plaintiff had traveled to the hearing using public transportation. (Id.) She had a driver’s
license, and drove locally about once a week, including to the supermarket two or three blocks
away. (Tr. 22.) She felt unsafe driving further because of the haziness from her medication.
(Id.) Her husband did the dishwashing, sweeping, mopping, and vacuuming. (Tr. 29.) Plaintiff
did not regularly visit friends or relatives, or entertain visitors. (Tr. 23, 30.)
V.

Vocational Expert Testimony
At Plaintiff’s administrative hearing on January 27, 2012, the ALJ called on vocational

expert (“VE”),Victor Girard Alberigi, to testify regarding which occupations might be available
in the national economy to someone with limitations like Plaintiff’s, and whether Plaintiff’s
limitations might allow her to pursue her previous employment. (Tr. 40-49.) The VE first
classified Plaintiff’s previous work under the Dictionary of Occupational Titles (“DOT”):
Plaintiff had worked as a retail sales clerk, a supervisor of food checkers and cashiers, an
administrative assistant, and a contractor administrator. (Tr. 41-43.) All the positions were
classified as either light or sedentary work. (Id.) Save for the position as a retail sales clerk,
which was semi-skilled, Plaintiff’s former occupations were all classified as skilled work. (Id.)
The ALJ then described a hypothetical worker for the VE. This worker could lift and
carry 20 pounds occasionally and 10 pounds frequently; stand or walk for approximate four
hours out of an eight-hour workday, and sit without limitation, with normal breaks. (Tr. 43.)
16

She could never climb ladders, ropes, or scaffolds, could occasionally climb ramps and stairs or
crawl, and only had a limited field of vision to use. (Tr. 44.) She was limited to simple routine
tasks, must work in a low stress job -- defined as one where decision-making was only
occasionally required -- and could only tolerate occasional interaction with either coworkers or
the public. (Id.) The VE testified that this hypothetical would eliminate all skilled work and
consequently all of Plaintiff’s past relevant work. (Id.) The hypothetical also excluded all light
work, which by a purist standard involved walking or standing two-thirds of the day. (Tr. 45.)
However, the VE also noted that he had observed certain jobs classified as light performed with
less than light activity. (Tr. 45, 46.)
The VE testified that given these limitations, the Plaintiff could find work as a parking lot
or garage cashier, a small products assembler, or an order clerk. (Tr. 45-47.) The positions were
all unskilled, with numbers in the New York metropolitan area ranging from nearly 3,000 to over
97,000. (Id.) The first two positions were formally classified as light work, but could be
performed at a sedentary level, by the VE’s observation. (Tr. 46.) The VE noted that modifying
the work to be sedentary by, for example, adding a sit/stand option, departed from the standards
of the DOT and the revised Selected Characteristics of Occupations. (Tr. 49.)
The ALJ then asked the VE if, given the same hypothetical limitations, but with the
additional caveat that the worker would regularly take numerous 30-minute breaks throughout
the day, there would be work open to the Plaintiff. 11 (Tr. 48-49.) The VE testified that most
employers allowed two to three unscheduled absences a month at most, as well three breaks a

11

The record of the administrative hearing indicates that the ALJ suggested a break “every
minute for 30 minutes,” which the Court interprets to mean very frequent 30-minute breaks. (Tr.
48.)
17

day for morning, lunch, and afternoon, plus bathroom breaks. (Tr. 47-48.)

Most employers

would not tolerate as many breaks as the ALJ suggested, unless by accommodation. (Tr. 49.)
STANDARD OF REVIEW
I.

District Court’s Review of the Administrative Decision
In reviewing a final decision of the Commissioner, the Court’s duty is to determine

whether it is based upon correct legal standards and principles and whether it is supported by
substantial evidence in the record, taken as a whole. See Talavera v. Astrue, 697 F.3d 145, 151
(2d Cir. 2012) (the Court “is limited to determining whether the [Social Security
Administration's] conclusions were supported by substantial evidence in the record and were
based on a correct legal standard”). “‘Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)) (alterations and internal quotation marks omitted). In determining
whether the Commissioner's findings were based upon substantial evidence, “the reviewing court
is required to examine the entire record, including contradictory evidence and evidence from
which conflicting inferences can be drawn.” Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.
1983) (citations omitted). However, the Court is mindful that “it is up to the agency, and not this
court, to weigh the conflicting evidence in the record.” Clark v. Comm’r of Soc. Sec., 143 F.3d
115, 118 (2d Cir. 1998). Under any circumstances, if there is substantial evidence in the record
to support the Commissioner's findings as to any fact, they are conclusive and must be upheld.
42 U.S.C. § 405(g); see also Cichocki v. Astrue, 729 F.3d 172, 175–76 (2d Cir. 2013).
II.

Disability Under the Social Security Act
The Social Security Act (“the Act”) provides that an individual is disabled if he or she is

unable “to engage in any substantial gainful activity by reason of any medically determinable
18

physical or mental impairment . . . which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To qualify for Social Security
disability benefits, the claimed disability must result “from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” Id. § 1382c(a)(3)(D); accord Tejada v. Apfel, 167 F.3d 770,
773 (2d Cir. 1999).
The Act’s regulations prescribe a five-step process for the evaluation of disability claims.
First, the Commissioner determines whether the claimant currently is engaged in “substantial
gainful activity.” If so, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(i) (2015).
If the claimant is not currently engaged in “substantial gainful activity,” the
Commissioner proceeds to the second step, which is whether the claimant suffers from a medical
impairment, or combination of impairments, that is “severe,” meaning that the impairment
“significantly limits [claimant’s] physical or mental ability to do basic work activities.” If the
impairment is not severe, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(ii), (c).
If the impairment is severe, the Commissioner proceeds to the third step, which is
whether the impairment meets or equals one of the impairments listed in Appendix 1 to Subpart
P of Part 404 of the Act's regulations (the “Listings”). If so, the claimant is presumed disabled
and entitled to benefits. 20 C.F.R. § 404.1520(a)(4)(iii).
If the impairment does not meet or equal a listing in Appendix 1, the Commissioner
proceeds to the fourth step, which is whether, despite the claimant’s severe impairment, he has
the “residual functional capacity” (“RFC”) to perform past relevant work.

20 C.F.R. §

404.1520(a)(4)(iv). A claimant’s RFC is used to assess whether he or she can perform one of the
five categories of work recognized by Social Security Administration (“SSA”) regulations (listed

19

here in order of decreasing rigor): very heavy, heavy, medium, light and sedentary. 20 C.F.R. §
404.1567(a). Sedentary is the least rigorous of the five categories. Schaal v. Apfel, 134 F.3d
496, 501 n. 6 (2d Cir.1998) (citing 20 C.F.R. § 404.1567). In determining a claimant’s RFC, the
Commissioner considers all medically determinable impairments, even those that are not
“severe.” 20 C.F.R. § 404.1545(a). If the claimant’s RFC is such that s/he can still perform past
work, the claimant is not disabled.
If the claimant cannot perform past work, the Commissioner proceeds to the fifth and
final inquiry, which is whether, in light of the claimant’s RFC, age, education, and work
experience, the claimant has the capacity to perform other substantial gainful work which exists
in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant has such capacity, the
claimant is not disabled. If not, the claimant is disabled and entitled to benefits. Id.
The claimant bears the burden of proving her case at steps one through four; at step five,
the burden shifts to the Commissioner to establish that there is substantial gainful work in the
national economy that the claimant could perform. Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.
2004).
DISCUSSION
I.

The ALJ’s Decision
Plaintiff applied for disability insurance benefits on July 21, 2010, alleging disability

beginning May 1, 2010. (Tr. 133.) The application was initially denied on January 4, 2011. (Tr.
58.) Plaintiff requested an administrative hearing on February 24, 2011. (Id.) On January 27,
2012 Plaintiff appeared before ALJ Moises Penalver via video conference, Plaintiff appearing in
Staten Island, and ALJ Penalver presiding in New York. (Id.)
The ALJ initially determined that Plaintiff had not engaged in substantial gainful activity
since the alleged onset date of the disability. The ALJ found that Plaintiff suffered from the
20

following severe impairments: status post-1992 CVA, i.e., stroke, headaches, and depression.
The ALJ also found that Plaintiff had one non-severe impairment, a blood disorder from proteinS deficiency. (Tr. 60.) The ALJ then found that none of these impairments or their combination
met or medically equaled the severity of any of the impairments in the Listings. (Tr. 61.)
Consequently, the ALJ assessed Plaintiff as having the RFC to perform a reduced range of light,
unskilled work. (Id.) Specifically, the ALJ found that the Plaintiff could “lift and/or carry up to
twenty pounds occasionally and 10 pounds frequently,” could stand or walk up to half of an 8hour workday, and could occasionally climb ramps or stairs and crawl. (Id.) The ALJ further
found that Plaintiff could not climb ladders, ropes or scaffolds, and “must avoid all exposure to
dangerous moving machinery” and “unprotected heights.”

(Id.)

Additionally the ALJ

determined that Plaintiff was limited to working in occupations requiring only occasional
peripheral acuity and involving only a low stress environment, which was defined as requiring
only occasional decision-making. (Id.) Lastly, the ALJ found that Plaintiff could only tolerate
occasional interaction with either the public or co-workers, which could only be superficial and
brief. (Id.)
The ALJ gave three representative occupations that Plaintiff could perform with her
residual functional capacity (“RFC”), as listed by the VE at the hearing: parking-lot cashier,
small products assembler, and order clerk. (Tr. 65.) The ALJ found that these jobs existed in
significant numbers in the national economy. (Id.) The ALJ also determined that the VE’s
testimony was consistent with the DOT.
The ALJ’s decision became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for review on July 9, 2013. (Tr. 1.) This action followed.

21

II.

The ALJ Failed to Comply with the Treating Physician Rule
“Regardless of its source,” Social Security regulations require that “every medical

opinion” in the administrative record be evaluated when determining whether a claimant is
disabled under the Act. 20 C.F.R. §§ 404.1527(d), 416.927(d). “Acceptable medical sources”
that can provide evidence to establish an impairment include, inter alia, Plaintiff's licensed
treating physicians and licensed or certified treating psychologists.

See 20 C.F.R. §§

404.1513(a), 416.913(a).
Social Security regulations require that the ALJ give “controlling weight” to the medical
opinion of an applicant’s treating physician so long as the opinion is (1) “well-supported by
medically acceptable clinical and laboratory diagnostic techniques” and (2) is not inconsistent
with the other substantial evidence in [the] case record.” Lucas v. Barnhart, 160 F. App’x 69, 71
(2d Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)); see also Rosa v. Callahan, 168 F.3d 72,
78–79 (2d Cir. 1999).

Medically acceptable clinical and laboratory diagnostic techniques

include consideration of a “patient’s report of complaints, or history, [a]s an essential diagnostic
tool.” Green–Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (citation omitted).
It bears emphasis that “not all expert opinions rise to the level of evidence that is
sufficiently substantial to undermine the opinion of the treating physician.” Correale–Englehart
v. Astrue, 687 F. Supp. 2d 396, 427 (S.D.N.Y. 2010) (citing Burgess v. Astrue, 537 F.3d 117, 128
(2d Cir. 2008). The preference for a treating physician’s opinion is generally justified because
“[such] sources are likely to be [from] the medical professionals most able to provide a detailed,
longitudinal picture of [the Plaintiff’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical evidence
alone or from reports of individual examinations.” 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
By the same token, the opinion of a consultative physician, “who only examined a Plaintiff once,
22

should not be accorded the same weight as the opinion of [a] Plaintiff’s treating [physician].”
Anderson v. Astrue, 07 CV 4969, 2009 WL 2824584, at *9 (E.D.N.Y. Aug. 28, 2009) (citing
Spielberg v. Barnhart, 367 F. Supp. 2d 276, 282–83 (E.D.N.Y. 2005)).

This is because

“consultative exams are often brief, are generally performed without the benefit or review of
claimant’s medical history and, at best, only give a glimpse of the claimant on a single day.” Id.
(quoting Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990)). In addition, opinions of consulting
physicians—whether examining or non-examining—are entitled to relatively little weight where
there is strong evidence of disability on the record, or in cases in which the consultant did not
have a complete record. Correale–Englehart, 687 F. Supp. 2d at 427.
Pursuant to the ALJ’s duty to develop the administrative record, an ALJ “cannot reject a
treating physician’s diagnosis without first attempting to fill any clear gaps in the administrative
record.” Rosa, 168 F.3d at 79 (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.1998) (“[E]ven
if the clinical findings were inadequate, it was the ALJ’s duty to seek additional information
from [the treating physician] sua sponte.”)). Thus, “if a physician’s report is believed to be
insufficiently explained, lacking in support, or inconsistent with the physician’s other reports, the
ALJ must seek clarification and additional information from the physician, as needed, to fill any
clear gaps before rejecting the doctor's opinion.” Correale–Englehart, 687 F. Supp. 2d at 428.
If the ALJ did not afford “controlling weight” to opinions from treating physicians, he
needed to consider the following factors: (1) “the frequency of examination and the length,
nature and extent of the treatment relationship;” (2) “the evidence in support of the opinion:” and
(3) “the opinion’s consistency with the record as a whole;” and (4) whether the opinion is from a
specialist.”

Clark, 143 F.3d at 118; accord Burgess, 537 F.3d at 128 (2d Cir. 2008).

Furthermore, when a treating physician’s opinions are repudiated, the ALJ must

23

“comprehensively set forth [his or her] reasons for the weight assigned to a treating physician’s
opinion.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (per curiam ); see Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999); 20 C.F.R. § 404.1527(d)(2) (stating that the Social Security
agency “will always give good reasons in [its] notice of determination or decision for the weight
[given to a] treating source’s opinion”) (emphasis added). “The failure to provide ‘good reasons'
for not crediting a treating source’s opinion is ground for remand.” See Burgin v. Astrue, 348 F.
App’x 646, 648 (2d Cir. 2009) (quoting Halloran, 362 F.3d at 33 (stating that the Second Circuit
will “not hesitate to remand when the Commissioner has not provided ‘good reasons’ for the
weight given to a treating physician’s opinion and ... will continue remanding when [the Second
Circuit] encounter[s] opinions from ALJs that do not comprehensively set forth reasons for the
weight assigned to a treating physician’s opinion.”) (changes in original omitted)).
The ALJ incorrectly applied these principles in this case. The ALJ rejected or failed to
consider key findings of Plaintiff’s treating sources, and instead relied largely on the opinions of
the agency’s consulting physicians, as well as an agency psychiatry reviewer. In so doing, the
ALJ failed to comply with Social Security regulations that require him to address the evidence
supporting the treating doctors’ opinions, provide good reasons for why he was rejecting or
giving lesser weight to Plaintiff’s treating sources’ opinions, and adequately develop the record.
A.

Plaintiff’s Mental Impairments (GAF)

Regarding Plaintiff’s mental impairments, the administrative record reflects that Plaintiff
was treated by psychiatrist Dr. Breving from April 29, 2011 to December 19, 2011, and social
worker Ms. Fried from April 2, 2011 to January 18, 2012. (Tr. 343-48; 349-59.) The ALJ
departed from the treating physician rule with respect to Dr. Breving’s opinion by according
little weight to the portions of the opinion that disagreed with the ALJ’s assessment of Plaintiff’s

24

disability, and only crediting Dr. Breving where the ALJ believed the opinion to be in favor of a
finding of no disability. Rather, the ALJ should have given controlling weight to Dr. Breving’s
opinion, unless there existed “good reason” not to do so, which the ALJ was required to explain.
See Snell, 177 F.3d at 133 (“Failure to provide explicit ‘good reasons’ for not crediting a treating
source’s opinion is a ground for remand.”)
Here, the ALJ relied on Dr. Breving’s assessment of Plaintiff’s GAF as a 75 as a basis for
giving little weight to the rest of Dr. Breving’s opinion. While the ALJ correctly noted that
Plaintiff’s GAF score of 75 indicated that her symptoms were “transient and exceptable reaction
to psychosocial stressors, which would cause her no more than slight impairment in social or
occupational functions”, (Tr. 63; DSM-IV-TR at 34), a claimant’s GAF score is insufficient
evidence to invalidate a treating physician’s other clinical findings. See Santiago v. Colvin, 12
CV 7052, 2014 WL 718424, at *20 n.10 (S.D.N.Y. Feb. 25, 2014) (“The [SSA] Commissioner
has made clear that the GAF scale does not have a direct correlation to the severity requirements
contained in the [regulations] that the ALJ considers [to determine whether the claimant has a
per se disability].”) (citing Revised Medical Criteria for Evaluating Mental Disorders and
Traumatic Brain Injury, 65 Fed. Reg. 50746–01, 50764–65, 2000 WL 1173632 (August 21,
2000). 12 The ALJ improperly rejected Dr. Breving’s clinical findings of Plaintiff’s mental
impairments out-of-hand. Dr. Breving reported that Plaintiff suffered from major depressive
disorder that was moderate and recurrent. (Tr. 343.) On the December Mental Impairment
Questionaire, Dr. Breving opined that plaintiff’s condition was expected to last at least 12
months, and that her impairment would cause her to be absent from work about once a month.
12

Furthermore, “[t]he GAF scale was removed for the fifth edition of the DSM, which was
published in 2013, because of the GAF's ‘conceptual lack of clarity’ and ‘questionable
psychometrics in routine practice.’” Corporan, at *12 n.9 (citing Diagnostic and Statistical
Manual of Mental Disorders (“DSM-V-TR”) at 16 (5th ed., 2013)).
25

(Tr. 346.) Dr. Breving assessed Plaintiff as having numerous functional limitations from her
depression, to which the ALJ gave little weight, despite the direct bearing that those opinions
have on the requirements for disability under the SSA’s regulations. (Tr. 347; 20 C.F.R. § Pt.
404, Subpt. P, App. 1, 12.04(A)(1), (B).) Dr. Breving’s opinion also asserted that Plaintiff would
have limited social and mental ability to do work, e.g., that she would not be able to organize and
set realistic goals. The ALJ’s opinion failed to address these issues, or provide any justification
for ignoring them. (Tr. 346; 63.) Rather, the ALJ’s selective reliance on the medical findings of
Dr. Breving as a treating source, while failing to credit his other findings, without providing
good reasons for doing so, is clearly erroneous.
The Court also finds that the ALJ erred by discounting the opinion of Ms. Fried,
Plaintiff’s social worker. The ALJ gave little weight to Ms. Fried’s opinion because “her contact
with [Plaintiff] was sporadic and as a social worker she is not a medically acceptable source
under the Regulations[.]” (Tr. 63.) While the ALJ was correct in finding that Ms. Fried did not
constitute a “medically acceptable source under the Regulations[,]” (Tr. 63,) he should have
considered her opinion as “other source evidence. 20 C.F.R. § 416.913(d); see Mitchell v.
Colvin, No. 09 CV 5429, 2013 WL 5676289, at *8 (E.D.N.Y. Oct. 17, 2013) (“Although they are
not ‘acceptable medical sources,’ therapists and social workers are ‘other sources’ whose
opinions must be considered by an ALJ.”); White v. Commissioner of Social Security, 302 F.
Supp. 2d 170, 176 (W.D.N.Y. 2004) (finding error in ALJ’s failure to give appropriate weight to
opinion of plaintiff’s social worker). Thus, Ms. Fried’s opinion may be used “to show the
severity of [Plaintiff’s] impairment(s) and how it affects [her] ability to work,” especially since
Ms. Fried’s opinion corroborates Dr. Breving’s opinion. See Social Security Ruling 06–03p,
2006 WL 2329939, at *2 (Soc. Sec. Admin. Aug, 9, 2006) (stating evidence from “other

26

sources,” such as licensed clinical social workers, may be considered to show the severity of an
individual’s impairment and how it affects the individual’s ability to function).The ALJ also
stated that Ms. Fried’s opinion was only entitled to “little weight” because her contact with
Plaintiff was “sporadic,” but the record shows that Ms. Fried saw Plaintiff seven times from
April 2011 to December 2011. (Tr. 357-59.) In contrast, Dr. Breving saw Plaintiff monthly
from April 2011 to December 2011––the same period. Accordingly, the Court finds that the ALJ
erred by not according greater weight to Ms. Fried’s opinion.
B.

Plaintiff’s Physical Impairments

The ALJ also failed to properly apply the treating physician rule with respect to
Plaintiff’s physical impairments. Plaintiff was treated by neurologist Dr. Ng from November 5,
2009 to February 17, 2012, for the ongoing management of her blood disorder and related
headaches. Dr. Ng’s office provided complete medical records regarding Plaintiff’s visits on and
around her onset date, which contained Dr. Ng’s various diagnoses and treatment plans,
including, inter alia, his direction that Plaintiff attend the Coumadin clinic for lifelong
anticoagulant therapy. (Tr. 296-311.) However, the ALJ did not expressly accord any weight to
Dr. Ng’s opinion, presumably because Dr. Ng did not make any explicit findings or
recommendations regarding Plaintiff’s ability to work and any relevant limitations. However, an
ALJ may not discredit a treating source’s reports on the basis that the report did not offer an
opinion regarding Plaintiff’s ability to engage in work activities. See Rosa, 168 F.3d at 79
(concluding that is was error for the ALJ to attach significance to omissions by the treating
physician rather than seek more information). Rather, under the treating physician rule, the ALJ
had an affirmative duty to develop the medical record where necessary. Id. If an ALJ is not able
to fully credit a treating physician’s opinion because the medical records from the physician are

27

incomplete or do not contain detailed support for the opinions expressed, the ALJ is obligated to
request the missing information from the physician. Correale-Englehart, 687 F. Supp. 2d at 428.
To the extent that the ALJ believed that Dr. Ng’s opinion was deficient for not opining on
Plaintiff’s ability to work, he was required to “seek additional evidence or clarification” from Dr.
Ng as a treating medical source. Calzada v. Astrue, 753 F. Supp. 2d 250, 269 (S.D.N.Y. 2010)
(citing C.F.R. 404.1512(e)(1)). The record of the administrative hearing indicates that while the
ALJ asked Plaintiff’s attorney to provide an assessment of Plaintiff’s physical limitations from
either her primary care physician or neurologist (Tr. 51), he only wanted “something to point to
to state why the [Plaintiff] has these physical limitations that I think she would have as I stated in
my hypothetical.” (Tr. 51-52.) Thus, instead of seeking out Dr. Ng’s opinion of Plaintiff’s
physical limitations, the ALJ was only interested in information that confirmed his own
previously formed conclusions.
Subsequently, the ALJ was satisfied to draw his conclusions based on Dr. Ng’s short
letter, which is quoted in its entirety above, despite its lack of explanation for Plaintiff’s
symptoms, much less a discussion of Plaintiff’s ability to do work-related activities. The ALJ
erred by not seeking clarification and supplementation from Plaintiff’s treating physicians and
instead using Dr. Ng’s letter as a peg to “hang [his] hat on” and justify the ALJ’s preconceived
view about Plaintiff’s lack of disability. (Id.) The ALJ should have required more testimony
from Dr. Ng as to how Plaintiff’s headaches would affect Plaintiff’s ability to work, if at all.
Having received a complete opinion, the ALJ could have then determined how much weight to
accord it.
III.

The ALJ Erred by Discounting Claimant’s Credibility
Plaintiff argues that the ALJ erred in finding Plaintiff’s testimony not credible. The

Court agrees. In assessing whether a claimant is disabled, the ALJ may consider the claimant’s
28

allegations of pain and functional limitations; however, the ALJ retains the discretion to assess
the claimant’s credibility. See Fernandez v. Astrue, 11 CV 3896, 2013 WL 1291284, at *18
(E.D.N.Y. Mar. 28, 2013) (citing Taylor v. Barnhart, 83 Fed. App’x 347, 350 (2d Cir. 2003);
Correale–Englehart, 687 F. Supp. 2d at 434). The SSA regulations provide a two-step process
for evaluating a claimant’s assertions of pain and other limitations. First, the ALJ must decide
whether the claimant suffers from “a medically determinable impairment that could reasonably
be expected to produce the symptoms alleged.” 20 C.F.R. § 404.1529(b). Second, where the
record shows that the claimant has such a medically determinable impairment, the ALJ evaluates
“the intensity and persistence of [the claimant’s] symptoms [to] determine” the extent to which
they limit the claimant’s ability to work. 20 C.F.R. § 404.1529(c); see also Fernandez, 2013 WL
1291284, at *18.
Where the ALJ finds that the claimant’s testimony is inconsistent with the objective
medical evidence in the record, the ALJ must evaluate the claimant’s testimony in light of seven
factors: 1) the claimant’s daily activities; 2) the location, duration, frequency, and intensity of the
pain; 3) precipitating and aggravating factors; 4) the type, dosage, effectiveness, and side effects
of any medications taken to alleviate the pain; 5) any treatment, other than medication, that the
claimant has received; 6) any other measures that the claimant employs to relieve the pain; and
7) other factors concerning the claimant’s functional limitations and restrictions as a result of the
pain. 20 C.F.R. § 404.1529(c)(3)(i)–(vii).
Here, the ALJ committed error by failing to adhere to the two-step inquiry prescribed in
the regulations. The ALJ’s decision dismisses Plaintiff’s testimony about her pain based solely
on her testimony about her daily activities. (See Tr. 63 (finding Plaintiff’s statements regarding
her daily activities rendered her “not fully credible” and that they did not show her to be

29

“incapable of a range of light, unskilled work.”)) By deeming Plaintiff’s testimony not credible
solely on the basis of her daily activities, instead of engaging in the two-step inquiry, the ALJ
erred. See Bialek v. Astrue, 11 CV 5220, 2013 WL 316165, at *4 (E.D.N.Y. Jan. 28, 2013)
(finding the ALJ improperly discounted the claimant’s testimony based on testimony regarding
his daily activities). At a minimum, ALJ should have determined whether Plaintiff suffered from
“a medically determinable impairment that could reasonably be expected to produce the
symptoms” Plaintiff testified to at the hearing—which, as discussed infra, the record did
establish. Furthermore, the ALJ did not consider the other six factors set forth in 20 C.F.R. §
404.1529(c)(3) before deeming Plaintiff’s testimony not credible. See Fernandez, 2013 WL
1291284, at *19 (noting ALJ erred by failing to evaluate the plaintiff’s testimony in light of the
seven factors required by SSA regulation).
Because the ALJ’s credibility determination rested solely on Plaintiff’s testimony
regarding her ability to engage in daily activities, the Court finds that it was not based on
substantial evidence. A claimant “does not need to be an invalid in order to be found disabled.”
Monroe v. Astrue, 12 CV 1456, 2014 WL 3756351, at *7 (E.D.N.Y. July 30, 2014) (citing
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.1998)). Indeed, a claimant’s ability “to tend to his
personal needs and travel to appointments is not indicative of his ability to perform light work.”
Bialek, 2013 WL 316165, at *4; see also Martin v. Astrue, 2009 WL 2356118, at *12 (S.D.N.Y.
July 30, 2009) (stating that the claimant’s ability to engage in “mundane tasks of life . . . do[es]
not necessarily indicate that [a claimant] is able to perform a full day of sedentary work.”).
While Plaintiff did engage in the daily activities of raising two children, driving a car locally, and
performing some household duties with the help of her husband (Tr. 188-191), such conduct
does not show that Plaintiff is capable of performing full-time light work, or that Plaintiff’s

30

testimony about the degree of impairment she otherwise suffered was not credible.

See

Fernandez, 2013 WL 1291284 at *19–20 (rejecting the Commissioner’s argument that the ALJ’s
adverse credibility determination was supported by substantial evidence based on the plaintiff’s
engagement in daily activities).
In fact, Plaintiff’s testimony is consistent with the opinion of her treating physicians. She
testified that her headaches were severe, and that she had repeatedly experienced them since her
second stroke in 2009. (Tr. 24.) 13 She took Ultram by prescription two to three times a week to
control her pain, which she rated as a seven or eight on a ten-point scale of pain. (Tr. 25.) She
testified that since her physician had increased her dosage from 50 to 100 milligrams of Ultram,
she suffered dizziness and grogginess as a side effect of the medication, such that she could not
function and had to lie down for at least an hour after taking the medication. (Tr. 25-26.) This is
consistent with Dr. Ng’s statement that he was using Ultram to treat Plaintiff for severe
headaches, occurring four to five times a month and the known side effects of Ultram. 14
Additionally, the ALJ did not believe that Plaintiff had a second stroke in 2009, mentioning
where the record “suggests” another stroke, only to describe all Plaintiff’s other normal
13

The ALJ appears not have seen or credited Dr. Ng’s diagnosis that Plaintiff had a second
stroke in 2009. (Tr. 62 (mentioning where the record “suggests” that Plaintiff had a second
stroke in 2009, but focusing on Plaintiff’s other normal neurological results).) This failoure to
follow the treating physician rule potentially contributed to the ALJ’s improper assessment of
plaintiff’s credibility.
14

Dr. Ng’s letter says Plaintiff is taking “Tramadol,” which is the generic name for Ultram. (Tr.
360.) See www.drugs.com/tramadol.html (last visited on August 18, 2015). Ultram’s very
common side effects include, inter alia, dizziness and somnolence. See
www.drugs.com/sfx/tramadol-side-effects.html (last visited on August 18, 2015). The Court
also notes that the ALJ could have sought more information from Plaintiff’s primary care
physician, Dr. Auyeung, who prescribed Plaintiff Ambien for her sleep disorders. (Tr. 219.)
Plaintiff testified that the Ambien made her unable to drive in the morning, with a drugged
feeling on waking. (Tr. 22.) Ambien’s reported side effects include a drugged feeling and
excessive sedation. See www.drugs.com/sfx/ambien-side-effects.html (last visited on August 18,
2015).
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neurological results. (Tr. 62.) Presumably, the ALJ did not recognize that Dr. Ng’s diagnosis of
a CVT, which the ALJ noted, was, in other words, a diagnosis of a stroke. This indicates that not
only was the ALJ was failing to follow the treating physician rule and wrongly discounting the
plaintiff’s credibility, but that the ALJ was substituting his own judgment of Plaintiff’s
limitations for that of acceptable medical sources.
Finally, Plaintiff correctly argues that the ALJ erred by failing to evaluate Plaintiff’s long
work history of 25 years when making his credibility assessment. (Tr. 149.) “A plaintiff with a
good work history is entitled to substantial credibility when claiming inability to work.” Rivera
v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983). Plaintiff’s 25-year work history entitled her to
substantial credibility. See Fernandez, 2013 WL 1291284 at *20 (finding that plaintiff was
entitled to substantial credibility based on a 25-year work history). Though work history is but
one factor that contributes to a credibility assessment, the ALJ erred by not considering
Plaintiff’s work history at all. See Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual's Statements, 61 Fed. Reg. 34,483, at 34,486 (listing numerous
factors for assessing a plaintiff’s credibility, including prior work record).
IV.

The ALJ’s RFC Determination Was Not Supported by Substantial Evidence
As discussed above, the ALJ determined Plaintiff’s RFC by adopting the testimony of the

non-examining medical experts and disregarding, or selectively relying on, the opinions of
Plaintiff’s treating physicians. Accordingly, the ALJ’s RFC determination was not supported by
substantial evidence.
Plaintiff’s treating psychiatrist Dr. Breving found that Plaintiff was mentally ill-suited to
working among co-workers, based on various limitations arising from her depression. (Tr. 34445.) Dr. Ng, Plaintiff’s treating neurologist, opined that Plaintiff had severe headaches that
seemed to be kept under control by her medication, but did not otherwise express an opinion as
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to Plaintiff’s ability to work. The ALJ’s decision that Plaintiff could do light, unskilled work
rested largely on Dr. Govindaraj’s consultative examination of Plaintiff, which cleared her for
work without restriction. (Tr. 64, 315.) The ALJ assigned great weight to Dr. Govindaraj’s
opinion, on the basis that the consulting doctor’s normal findings were supported by the
otherwise normal neurological assessments in 2009, stressing that there was no “objective proof
of a recurring CVA.” (Tr. 64.) However, Dr. Govindaraj’s examination on December 14, 2010
was his only contact with Plaintiff. (Tr. 312.) Though he opined that Plaintiff’s central nervous
system was normal, he did not issue any opinions as to her headaches. (Tr. 314.) Thus, the only
support for the ALJ’s RFC were the findings of consulting physician, which contradicted the
opinion of Plaintiff’s treating neurologist as to whether she suffered a stroke in 2009.
Accordingly, the ALJ’s RFC was not supported by substantial evidence, and warrants reconsideration on remand. See McKissick v. Barnhart, 01 CV 1550, 2002 WL 31409933, at *16
(finding the Commissioner’s decision was not supported by substantial evidence where treating
physician evidence contradicted the opinion of non-treating physician).
Even as to the agency’s own consultative physicians, the ALJ selectively relied on their
opinions so as to support his decision.

For example, the ALJ gave significant weight to

consulting psychiatrist Dr. Sankar’s opinion that Plaintiff had “no major psychiatric problems”
(Tr. 318), yet disregarded Dr. Sankar’s opinion that Plaintiff could not maintain a regular
schedule or learn new tasks as inconsistent (Tr. 64), without providing any reason for this
selective use of the consultative physician evidence.
As previously discussed (see supra footnote 17), it also appears that the ALJ did not
believe that Plaintiff had a second stroke in 2009, as diagnosed by Dr. Ng. This failure to credit
Dr. Ng’s opinion amounts to the ALJ substituting his own judgment with respect to Plaintiff’s

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limitations for that of acceptable medical sources, and warrants remand. Rosa, 168 F.3d at 79
(“In analyzing a treating physician's report, “the ALJ cannot arbitrarily substitute his own
judgment for competent medical opinion.”) (quoting McBrayer v. Secretary of Health and
Human Servs., 712 F.2d 795, 799 (2d Cir. 1983)); see also Wagner v. Secretary of Health and
Human Servs., 906 F.2d 856, 862 (2d Cir. 1990) (“[A] circumstantial critique by [a]
nonphysician[ ], however thorough or responsible, must be overwhelmingly compelling to justify
a denial of benefits”).
Lastly, the ALJ erred by misrepresenting the VE’s testimony to assert that there was
work to be found in significant numbers for those with Plaintiff’s limitations. In response to the
hypothetical limitation that Plaintiff would need frequent 30-minute breaks, the VE testified that
employers would not tolerate more than the three standard breaks and occasional bathroom
breaks in a work day, except by accommodation. (Tr. 49.) The ALJ’s decision, however, failed
to acknowledge or address Plaintiff’s need for more work breaks than a typical employer would
permit without accommodation. (Tr. 49, 63. (“There is nothing in the record showing that the
claimant is incapable of a range of light, unskilled work.”))

In addition, Social Security

regulations require that the ALJ must use representative occupations that conform to the
descriptions found in the DOT. See Social Security Ruling 00-4P, 2000 WL 1898704, at *4
(Dec. 4, 2000) (“SSR 00-4P”). Yet, the VE testified that the accommodations needed for
Plaintiff to perform light work would depart from the strict standards of the DOT. (Tr. 49.)
Thus, the ALJ erred by failing to resolve the conflict in his decision, as required by SSA
regulations. SSR 00-4P, at *4.

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V.

Remedy
Accordingly, the Court remands this action, instructing the ALJ to develop the record,

determine whether the opinions of Plaintiff’s treating physicians deserve controlling weight, and
if applicable, articulate reasons for according less than controlling weight to these opinions.
Although Plaintiff’s cross-motion addresses only the core issues of the ALJ’s
misapplication of the treating physician rule and improper assessment of Plaintiff’s credibility,
the Court additionally notes that the ALJ failed to meaningfully consider the combined effect of
Plaintiff’s mental and physical impairments, i.e., depression, headaches, and grogginess from
medication side effects, as found by her treating physicians. See 20 C.F.R. § 404.1520(a)(4)(ii),
(c) (requiring a determination of whether the claimant suffers from a medical impairment, or
combination of impairments, that is “severe”). Thus, on remand, the ALJ should also consider
the effects of Plaintiff’ combined impairments at every step of the five-step sequential analysis.
After developing the record and according the appropriate weight to the various medical
sources on the record, the ALJ should additionally reassess Plaintiff’s credibility with reference
to the factors listed in 20 C.F.R. § 404.1529(c)(3)(i)-(vii). To the extent the ALJ discredits
Plaintiff’s statements concerning her pain or the intensity, persistence and limiting effects of her
impairments, the ALJ should indicate how he assessed and balanced the various factors.
Lastly, the ALJ should adequately develop the record with respect to, and explain the
bases for, his RFC assessment. Among the information that the ALJ is required to obtain from a
treating source at stage five of the analysis is “a statement of what [the claimant] can still do
despite [her] impairment(s) based on her acceptable medical sources’ findings on her factors
under paragraphs (b)(1) through (b)(5) of this section.” 20 C.F.R. § 404.1513(b) (6). The ALJ
must also adequately explain the reasoning underlying his RFC determination and the basis on
which it rests. See, e.g., Correale–Englehart, 687 F. Supp. 2d at 440 (citing cases).
35

CONCLUSION
For the reasons set forth above, the Court denies the Commissioner’s motion for
judgment on the pleadings and grants Plaintiff’s cross-motion. Pursuant to the fourth sentence of
42 U.S.C. 405(g), the Commissioner’s decision is remanded for further consideration and new
findings consistent with this Memorandum & Order.

The Clerk of Court is respectfully

requested to enter judgment accordingly.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: August 20, 2015
Brooklyn, New York

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