Nelson v. Commissioner of Social Security

Filing 18

ORDER denying 12 Motion for Judgment on the Pleadings: For the reasons explained in the attached Order, the Commissioner's motion is denied and the case is remanded to the Commissioner solely for the calculation and award of benefits. Ordered by Judge John Gleeson on 12/31/2014. (Levin, Sarah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

FOR ONLINE PUBLICATION ONLY

TAMARA NELSON,
Plaintiff,
- versus -

MEMORANDUM
AND ORDER
14-CV-1109 (JG)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

APPEARANCES:
TAMARA NELSON
212 Crown Street
Apartment 2E
Brooklyn, NY 11225
By:
Plaintiff pro se
LORETTA E. LYNCH
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
By:
Karen T. Callahan
Attorney for Defendant
JOHN GLEESON, United States District Judge:
PRELIMINARY STATEMENT
When Tamara Nelson was four years old she went into a coma for four days. R.
407. She was diagnosed with diabetes mellitus type I, R. 407, and she has taken insulin four
times per day ever since. R. 289. Based on that diagnosis, she was found to be disabled in 1996,
when she was five years old, and she was awarded Social Security Income benefits. R. 400.
Tamara left school after eighth grade in 2005, when she was fifteen years old, at
the principal’s request. R. 409-10. The principal asked her mother to sign a release form and

take Tamara out of school because she was always sick due to her diabetes and because she
could not talk to people at school. R. 409. That was the end of Tamara’s education; she has
been at home with her mother and sister ever since. R. 410.
Long before it became one of the reasons for her leaving school, Tamara was
unable to speak outside her home. The record suggests that Tamara’s muteness has been a
problem since 1999. See R. 318 (2011 report reflecting “a consistent failure to speak in specific
social situations for almost 12 years”). Her inability to speak outside of her home causes her
considerable anxiety, impairs her “ability to relate adequately with others,” and standing alone,
that is, without consideration of her other severe impairments, “significantly interfer[ed] with her
ability to function on a daily basis” as early as 2009. R. 239-40 (February 2009 report of
examining psychiatrist, Dr. Heidi Van Horne).
Tamara’s physical and nonexertional problems continued to mount after she was
withdrawn from school. As the Commissioner of Social Security (the “Commissioner”) admits,
her severe impairments – in addition to diabetes and selective mutism – include hyperthyroidism,
Grave’s disease, depression, and irregular heart rhythm. See R. 27, 426. It is also undisputed
that Tamara suffers from blurred vision, see R. 385, 412-13, though the Commissioner does not
acknowledge this.
When Tamara turned eighteen years old, the Commissioner was required to
reassess her eligibility for social security benefits. Despite all of her limitations, Tamara was
found not disabled. In this action, she seeks review of the Commissioner’s denial of her
application for Social Security Income benefits under the Social Security Act (the “Act”).
In the ALJ’s decision, he concluded that Tamara could be a hand packager,
assembler of small products, or retail price marker. R. 32. But the vocational expert testified to

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the exact opposite regarding small product assembly once Tamara’s specific limitations were
taken into account, and her testimony on the price marking job was equivocal. R. 416-17. And
the ALJ acknowledged that the combination of physical impairments and the eighth grade
education constituted a “significant barrier to jobs” if Tamara’s muteness is “not controllable.”
R. 418-19.
The ALJ found Tamara’s muteness “mysterious,” and admitted he did not know if
it was “controllable,” but he nonetheless concluded that Tamara was “choosing not to” speak. R.
413-14. Since the record establishes (1) an inability to speak stretching back 13 years before the
ALJ’s decision, (2) a request from Tamara’s middle school principal seven years before the
ALJ’s decision that Tamara be permanently removed from school based in part on her inability
to speak there, (3) Tamara did not speak at her hearings or in court and communicates with her
doctors only through her mother, and (4) the muteness causes Tamara anxiety, there is simply no
basis for ALJ’s conclusion that her muteness might be “intentional.” See R. 318, 410, 414. Yet
the Commissioner persists in that view even in this Court; her counsel contended at oral
argument that “we may all be disabled if we just didn’t want to talk to people.” Tr. 8 (Nov. 7,
2014). That position reflects a callous disregard of Tamara’s condition and the record before me.
Finally, the Commissioner ignored the escalating effects of Tamara’s diabetes.
Before the second hearing in front of the ALJ, Tamara submitted medical records showing she
was “not responding to current treatment.” R. 372 (Sept. 26, 2011 visit). Then, in the months
before the ALJ’s decision, her doctor twice wrote as follows: “The problem is getting worse.
Risk factors include: African American race. She has been managed with insulin. Pertinent
negatives include blurred vision, constant hunger, excessive thirst, foot ulcers, frequent
infections, frequent urination, increased fatigue, chest pain, dyspnea, nocturia, dysesthesias, slow

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healing wounds/sores, tooth/gum disease, weight loss, weight gain, diarrhea, burning of
extremities, hypoglycemic episodes or heartburn.” R. 382 (March 15, 2012 visit), R. 385 (April
18, 2012 visit). Yet the ALJ ignored those statements even as he relied on other statements in
the same reports.
There is no indication here that Tamara “just [doesn’t] want to talk to people.”
An array of very serious afflictions combines to impose an insuperable barrier to employment.
Thus, I remand for the sole purpose of calculating benefits.
BACKGROUND
A.

Facts and Procedural History
Tamara was born in October 1990. R. 94. As mentioned above, she was found to

be disabled at age five. After she turned eighteen years old, the Commissioner was required to
redetermine her eligibility for benefits under the criteria used to determine initial eligibility for
adults. See 42 U.S.C. § 1382c(a)(3)(H)(iii). To be entitled to benefits as a disabled adult,
Tamara needed to show she met the income and resource requirements of 42 U.S.C. §§ 1382a
and 1382b, and that she was “unable to engage in any substantial gainful activity by reason of a
physical or mental impairment” that is expected to last for at least one year. 42 U.S.C. §
1382c(a). When the Commissioner reviewed Tamara’s case under the adult disability standard,
Tamara was initially found no longer eligible for benefits. R. 41-44. After Tamara requested
reconsideration, a hearing before a hearing officer was held on November 18, 2009. The hearing
officer determined that Tamara was no longer disabled under the adult disability standard. R.
82-107. Tamara thereupon requested a hearing before an ALJ.
On May 18, 2011, and June 14, 2012, Tamara appeared before ALJ Edward Hein
to contest the decision that she was no longer disabled. R. 394, 425. On both occasions, Tamara
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appeared without counsel but with her mother, Maureen Nelson, who spoke on behalf of her
daughter. See R. 396-98, R. 425. In a decision dated August 31, 2012, the ALJ found that
Tamara’s disability ended on April 22, 2010. R. 32. On December 20, 2013, Tamara’s request
for review of the ALJ’s decision was denied, R. 5-8, at which point it became the final decision
of the Commissioner.
On February 20, 2014, Tamara filed a pro se complaint requesting review of the
ALJ’s decision pursuant to 42 U.S.C. § 405(g). The Commissioner moved for judgment on the
pleadings upholding her decision to terminate Tamara’s benefits because she did not satisfy the
adult disability standard. I heard oral argument on November 7, 2014. At oral argument,
Tamara was accompanied by her mother, who spoke on her behalf. For the reasons that follow,
the Commissioner’s motion is denied and the case is remanded solely for the calculation and
award of benefits.
B.

The ALJ’s Decision
1.

The Legal Standards

The Act provides that a person is disabled if he or she “is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for a continuous period of not less
than twelve months.” Additionally, an individual is disabled “only if [her] physical or mental
impairment or impairments are of such severity that [she] . . . cannot, considering [her] age,
education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy . . . .” 42 U.S.C. § 1382c(a)(3)(B); see also Melville v. Apfel, 198
F.3d 45, 50-51 (2d Cir. 1999).

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The Social Security Administration’s regulations prescribe a sequential five-step
analysis for determining whether a claimant is disabled:
First, the Commissioner considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the Commissioner
next considers whether the claimant has a “severe impairment” which
significantly limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment, the third inquiry
is whether, based solely on medical evidence, the claimant has an
impairment which is listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the Commissioner will consider him
disabled without considering vocational factors such as age, education,
and work experience; the Commissioner presumes that a claimant who
is afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional capacity to perform
his past work. Finally, if the claimant is unable to perform his past
work, the Commissioner then determines whether there is other work
which the claimant could perform.
DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (quoting Berry v. Schweiker, 675
F.2d 464, 467 (2d Cir. 1982)) (alterations omitted); see also 20 C.F.R. § 404.1520(a)(4)(i)-(v)
(setting forth this process). The claimant bears the burden of proof in the first four steps, and the
burden shifts to the Commissioner in the last. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.
2009).
2.

The ALJ’s Findings

At step one of the analysis described above, the ALJ found that Tamara – who has
never engaged in substantial gainful activity – was notified that she was found to be no longer
disabled as of April 22, 2010, based on a redetermination of her disability status. R. 27. At step
two, he found that Tamara suffers from “severe impairments” as defined by 20 C.F.R. §
416.920(c), including diabetes mellitus type I, Grave’s disease, hyperthyroidism, selective

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mutism, and depression. R. 27. 1 At step three, the ALJ found that those severe impairments,
alone or in combination, did not meet and were not medically equal in severity to one of the
impairments listed in 20 C.F.R. § 404 Subpart P, Appendix 1, which required him to determine
Tamara’s residual functional capacity (“RFC”). R. 28.
In that regard, the ALJ found that Tamara could perform light work as defined in
20 C.F.R. § 416.967(b), limited to simple routine work using all postures occasionally and
communicating with strangers selectively. R. 29. In the explanation of this finding, the ALJ said
“the claimant’s assertions that the intensity, persistence, and limiting effects of these symptoms
are more restrictive than the above residual functional capacity assessment are not supported by
the objective medical evidence and, therefore, are not credible.” R. 29.
At step four, the ALJ observed that there was no past relevant work to consider.
R. 31. At step five, based on the testimony a vocational expert, he determined that there were
jobs that exist in significant numbers that Tamara could perform “even if mute.” R. 32. Those
jobs were hand packaging, small product assembly, and retail price marker. R. 32. Accordingly,
the ALJ determined that Tamara was not disabled. R. 32.
C.

The Evidence
The record consists of hearing testimony, medical records, and additional

evidence submitted by Tamara. I discuss below the evidence as it relates to the ALJ’s
determination of Tamara’s RFC and his finding that Tamara’s testimony was not credible.
1.

Hearing Testimony

During the May 2011 hearing, when the ALJ summarized the medical evidence
related to Tamara’s mutism, he said that the examining physician, Dr. Ammaji Manyam,

1

The ALJ also acknowledged that Tamara suffers from an irregular heart rhythm, see R. 426, but
that did not appear in his findings.

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concluded that Tamara “is keeping herself mum. It’s what they call selective dumbness,
meaning silence, and inability to talk . . .” R. 411 (citing Exhibit 15F at R. 315). The ALJ said
that Dr. Manyam and Dr. Christopher Flach, the examining psychiatrist, did not find enough
evidence to support the conclusion that the conditions were serious enough to limit Tamara’s
ability to work. R. 411. The ALJ noted that the medical source statement from Dr. Manyam
found all of Tamara’s impairments to be mild except the ability to make complex work-related
decisions and respond appropriately to changes in routine, which were listed as moderate
impairments. R. 411-12.
In his examination of the vocational expert, the ALJ stated, “[T]here’s nothing in
here in terms of a limitation caused by this mutism, which is a little mysterious.” R. 413.
Continuing the discussion of Tamara’s mutism, the ALJ said, “I’m not quite sure to what extent
this is voluntary or not,” noting that Tamara speaks to her mother and sister, but not strangers,
doctors, or the ALJ himself during the hearing. R. 414. The ALJ asked the vocational expert
what effect “dumbness” would have on Tamara’s ability to work, and the vocational expert
testified, “[I]t eliminates jobs where communication, verbal communication, is required, but . . .
the ability to speak is not required for all jobs.” R. 414. The ALJ next asked about the ability of
Tamara to obtain a job without the ability to speak to strangers:
Q: Okay. So let me ask you this then.
A: There is the issue of having an initial interview, to be hired for a job or
we’re putting that aside?
Q: Yeah, I mean I think we have to look with and without. So without the
muteness, all right?
A: Yes.
R. 415-16.
When the vocational expert continued to testify about what work Tamara could
perform given all her limitations except muteness, the expert mentioned hand packaging, small

8

product assembly, locker room attendant, and retail price marker. R. 416-17. The expert said if
a person were mute, that would rule out locker room attendant but not packager, R. 417, and it
would not “necessarily” rule out price marker. R. 417. However, once the ALJ reminded the
vocational expert of Tamara’s inability to sit for over two hours, the expert eliminated the small
product assembly job. R. 416.
Making further comments about the effect of muteness, the ALJ said, “[R]ight
now it looks to me like in terms of what jobs Tamara might or might not be able to do, the eighth
grade education is a very limiting factor and the muteness, if it’s not controllable or if she can’t
bring herself to speak to other people that she doesn’t know . . . would be a significant barrier to
jobs.” R. 418-19. However, the ALJ did not consider the effect of Tamara’s mutism any further,
nor did he continue the discussion of how Tamara would be able to secure or maintain
employment given her limitations. Indeed, the ALJ never concluded whether he thought
Tamara’s mutism was voluntary or not.
The ALJ attempted to examine Tamara, who did not give audible responses. He
also asked Tamara’s mother about her daughter’s additional limitations. Tamara’s mother
testified that her daughter went to school only to the eighth grade because the principal asked to
have Tamara released from school since she “was always sick at school [due to her diabetes] and
she wasn’t speaking, so most times she was reluctant to go to school.” R. 409. Tamara’s mother
also testified about Tamara’s additional symptoms that would prevent her from working, which
include blurred vision (R. 413), swollen feet and numbness in her fingers (R. 419), shortness of
breath (R. 420), no sense of direction, and an inability to travel alone (R. 421).

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2.

Medical Evidence Related to Mutism

In reports of their physical and mental examinations, the physicians and
psychiatrists made it clear that Tamara’s inability to speak affected her demeanor and
responsiveness. In a psychiatric evaluation in February 2009, Dr. Heidi Van Horne stated that
“because she did not speak, this affected her ability to fully communicate her thoughts to the
evaluator” and her thought process was “[d]ifficult to assess.” R. 238. In Dr. Van Horne’s
medical source statement, she wrote that Tamara was unable to speak outside the home, and she
concluded as follows: “The results of the present evaluation appear to be consistent with
psychiatric problems that are significantly interfering with her ability to function on a daily basis,
specifically her anxiety that is resulting in her selective mutism.” R. 239-40.
After a consultative physical exam in April 2011, Dr. Manyam noted that Tamara
does not speak except to her mother and sister. R. 312. Tamara’s mother reported Tamara’s
information to the doctor. R. 312, 30. Dr. Flach also conducted a consultative psychiatric exam
in April 2011, and he reported that Tamara “seemed to have a consistent failure to speak in
specific social situations for almost 12 years, including school. Disturbances seemed to have
interfered both educationally, occupationally and achievement.” R. 318. Dr. Flach reported that
Tamara does “no laundry, no shopping,” and “mom does all those tasks,” and Tamara “does not
take public transportation on her own. She apparently gets lost. Apparently, she is not
socializing very much. She does not go out.” R. 319. In the medical source statement, Dr.
Flach said Tamara has “difficulty relating adequately with others and problems dealing with
stress,” results that are “consistent with some psychiatric problems” that mildly to moderately
affect Tamara’s ability to function on a daily basis. R. 319.

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3.

Additional Evidence from Tamara

The ALJ convened a second hearing in June 2012 to hear evidence about
additional symptoms related to Tamara’s diabetes. Tamara’s mother testified that Tamara
suffers from such serious cramps that she cannot get out of bed, for which she had seen a doctor
but had not yet received a diagnosis. R. 428. She also testified that Tamara had started taking
GED classes but was not able to continue them because of a thyroid infection and high blood
sugar. R. 432. Tamara’s additional medical records included: (1) records from Dr. Omesh
Jhagroo documenting Tamara’s struggles with complications from diabetes, including her
complaints of blurred vision, foot ulcers, frequent infections, increased fatigue, and chest pain
(R. 368-70, 382-88); (2) records from Dr. Yevgenly Kantor that show she was not responding to
the current treatment and that her diabetes and hyperthyroidism were poorly controlled (R. 37175, 380-81); and (3) records from an inpatient visit to Kings County Hospital in August 2012 (R.
389-93).
Tamara submitted letters to the ALJ and to this Court. In May 2011, she wrote to
the ALJ that her mutism is “ruining her life,” and that she “would never purposefully mute
[her]self.” R. 229. In October 2011, she submitted a letter that listed her current medications
and ailments, including hyperthyroidism, irregular heart rate, difficulty standing and walking for
long periods of time, chest pains, and abdominal pains. R. 365-66, R. 426. More recently,
Tamara submitted a letter to this Court (during oral argument) that stated her mutism is no longer
“selective” and she no longer speaks to anyone. See ECF No. 17 (Nov. 10, 2014). Additionally,
she related other symptoms she is experiencing, including episodes of asthma that leave her
unable to breathe, and an inability to sleep at night. Id.

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DISCUSSION
A.

The Standard of Review
Under 42 U.S.C. § 405(g), I review the Commissioner’s decision to determine

whether the correct legal standards were applied, and whether the decision is supported by
substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The first inquiry is
whether “the claimant has had a full hearing under the [Commissioner’s] regulations and in
accordance with the beneficent purposes of the Act.” Echevarria v. Sec’y of Health & Human
Servs., 685 F.2d 751, 755 (2d Cir. 1982) (citation omitted). The second inquiry is whether
Commissioner’s decision is supported by “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.
2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also id. (“Substantial
evidence is more than a mere scintilla.”) (internal quotation omitted). The hearing on disability
benefits is a nonadversarial proceeding, and the ALJ “has an affirmative obligation to develop
the administrative record.” Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999) (citation omitted).
In conducting my review, I am mindful that “the Social Security Act is a remedial
statute which must be ‘liberally applied,’ its intent is inclusion rather than exclusion.” Vargas v.
Sullivan, 898 F.2d 293, 296 (2d Cir. 1990) (citation omitted). Moreover, when a claimant is
unrepresented by counsel, “the ALJ has a duty to probe scrupulously and conscientiously into
and explore all of the relevant facts . . . .” Melville, 198 F.3d at 51.
A district court has the “power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). A

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remand for further proceedings is appropriate when “the Commissioner has failed to provide a
full and fair hearing, to make explicit findings, or to have correctly applied the . . . regulations,”
Manago v. Barnhart, 321 F. Supp. 2d 559, 568 (E.D.N.Y. 2004), or “[w]here there are gaps in
the administrative record.” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts
v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)). Alternatively, where the record establishes
“persuasive proof of disability and remand for further evidentiary proceedings would serve no
purpose,” the court should remand solely for the calculation and payment of benefits. Parker v.
Harris, 626 F.2d 225, 235 (2d Cir. 1980).
B.

Errors Committed by the ALJ
As discussed above, the ALJ’s decision was based on his conclusions that

Tamara, despite her various impairments, retains the capacity to perform light work, and that her
testimony about her symptoms was not credible. These conclusions are not supported by
substantial evidence.
1.

Evaluation of Tamara’s RFC

A claimant’s residual functional capacity (“RFC”) is defined as “the most you can
still do despite your limitations.” 20 C.F.R. § 416.945(a)(1). It is based on all the relevant
evidence in the claimant’s record. Id. “The ALJ’s duty to develop the record includes ensuring
that the record as a whole is complete and detailed enough to allow the ALJ to determine the
Plaintiff’s RFC.” Fernandez v. Astrue, No. 11-CV-3896 (DLI), 2013 WL 1291284, at *16
(E.D.N.Y. Mar. 28, 2013) (citation omitted). A claimant’s RFC should take into consideration
her physical abilities, mental abilities, and “other abilities affected by impairment(s).” 20 C.F.R.
§ 404.1545(b) – (d). “Other abilities” include impairments to “vision, hearing or other senses,

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and impairment(s) which impose environmental restrictions, [and] may cause limitations and
restrictions which affect other work-related abilities.” 20 C.F.R. § 404.1545(d).
The ALJ’s determination that Tamara can perform “a full range of light work” is
not supported by substantial evidence. The ALJ cited reports from physicians about Tamara’s
abilities, but he did not take into account the effects of the impairments noted in those reports.
For example, in his psychiatric examination report, Dr. Flach noted that Tamara “seemed to have
a consistent failure to speak in specific social situations for almost 12 years, including school.
Disturbances seemed to have interfered both educationally, occupationally and achievement.” R.
318. “Seemed to have interfered” was actually an understatement – one of the two reasons
Tamara’s mother was asked by her middle school principal to sign her out of school permanently
in the eighth grade was her inability to speak to others. Dr. Flach also reported that Tamara does
“no laundry, no shopping,” and “mom does all those tasks.” He further noted that Tamara “does
not take public transportation on her own. She apparently gets lost. Apparently, she is not
socializing very much. She does not go out.” R. 319.
In addition to the chronic debilitating effects of her lifelong battle with diabetes,
and the adverse effects of hypothyroidism, Grave’s disease, depression, and blurred vision, these
medical reports that Tamara cannot speak and cannot leave her home except when accompanied
by her mother fatally undermine the ALJ’s determination that Tamara can perform “a full range
of light work.”
The ALJ also mischaracterized the testimony of the vocational expert, resulting in
erroneous findings. Specifically, he concluded as follows: “The vocational expert testified that
given all of these factors the individual, even if mute, would be able to perform the requirements
of representative occupations such as: 1) handpackaging . . .; 2) assembly, small products . . .; 3)

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retail price marker . . .” R. 32. But in fact the expert testified that, given the posited RFC, which
included an ability to sit for up to two hours, Tamara could not perform small assembly jobs: “I
don’t know if [Tamara] really could do assembly. More of the assembly jobs require sitting for
at least six of the hours. There may be a very small percentage where a person has the option of
sitting or standing longer than those.” R. 416. That testimony cannot support a finding that
Tamara can perform small assembly jobs that “exist[] in significant numbers in the national
economy.” R. 32.
Similarly, as to the price marker position, the expert testified only that Tamara’s
muteness would not necessarily rule out such work for her. R. 417. The ALJ did not follow up
on that equivocal response, which does not support his finding.
Finally on this topic, the ALJ simply ignored a matter that the vocational expert
herself brought up at the outset of her testimony about Tamara’s ability to work. The expert
asked the ALJ as follows: “There is the issue of having an initial interview, to be hired for a job,
or we’re putting that aside?” R. 415. The ALJ instructed her to put that issue aside. R. 415-16.
Although the ALJ later asked the expert what effect Tamara’s mutism would have on her ability
to perform certain jobs, he never returned to the question of how she might possibly obtain those
jobs. When pressed on that issue at oral argument, the Commissioner’s argument reduced to a
claim that the muteness is a “questionable impairment,” Tr. 7 (Nov. 7, 2014), and that Tamara is
not “incapable of communicating.” Id. at 8. That contention cannot be reconciled with the
record evidence of that impairment beginning as early as 1999, and with the fact that Tamara’s
mutism, and the anxiety it produced in her, resulted in her permanent withdrawal from school
fully seven years before the ALJ’s decision.

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The ALJ also erred by ignoring critical evidence that Tamara’s impairments were
having progressively worse effects on her. He wrote as follows in his decision denying benefits:
“On [sic] April 18, 2012, examination by treating source Omesh Jhagroo, M.D., showed the
claimant appeared well nourished, well developed and hydrated, eyes, nose, mouth, and throat
were all normal, respiratory normal to inspection, cardiovascular was at a regular rate, abdomen
normal and the right foot/ankle had swelling. There were no complications associated with
diabetes mellitus (Exhibit 22F at 19-21).” R. 31 (emphasis added). But the exact pages cited by
the ALJ also include the following report, which the ALJ simply ignored: “1. diabetes: The
problem is getting worse. Risk factors include: African American race. She has been managed
with insulin. Pertinent negatives include blurred vision, constant hunger, excessive thirst, foot
ulcers, frequent infections, frequent urination, increased fatigue, chest pain, dyspnea, nocturia,
dysesthesias, slow healing wounds/sores, tooth/gum disease, weight loss, weight gain, diarrhea,
burning of extremities, hypoglycemic episodes or heartburn.” R. 385 (Exhibit 22F at 19). Those
same symptoms appeared for the first time in Dr. Jhagroo’s report a month earlier (R. 382), and
demonstrated the increasingly debilitating effects of Tamara’s condition in the months leading up
to the ALJ’s August 2012 decision.
2.

The Adverse Credibility Determination

The ALJ’s credibility assessment was also flawed. To decide whether a claimant
is disabled, the Commissioner must consider the subjective evidence of pain and disability
testified to by the claimant. See 20 C.F.R. § 416.929(a). “It is within the discretion of the
[Commissioner] to evaluate the credibility of the plaintiff’s complaints and render an
independent judgment in light of the medical findings and other evidence regarding the true

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extent of such symptomatology.” Gernavage v. Shalala, 882 F. Supp. 1413, 1419 (S.D.N.Y.
1995).
To assess a claimant’s assertions of pain and other limitations, the regulations
provide a two-step process. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). “At the first step,
the ALJ must decide whether the claimant suffers from a medically determinable impairment
that could reasonably be expected to produce the symptoms alleged.” Id. (citing 20 C.F.R. §
404.1529(b)). At the second step, “the ALJ must consider ‘the extent to which [the claimant’s]
symptoms can reasonably be accepted as consistent with the objective medical evidence and
other evidence’ of record.” Id. (quoting 20 C.F.R. § 404.1529(a)).
Seven factors are used in evaluating a claimant’s subjective complaints: (1) the
claimant’s daily activities; (2) the location, duration, frequency and intensity of the pain or other
symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side
effects of any medication the claimant takes or has taken to alleviate pain or other symptoms; (5)
treatment, other than medication, the claimant received or has received for relief of pain or other
symptoms; (6) any measures other than treatment the claimant uses or has used to relieve pain or
other symptoms (e.g., lying flat on his or her back, standing for fifteen to twenty minutes every
hour, or sleeping on a board); and (7) any other factors concerning the claimant’s functional
limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 416.929(c)(3)(i)-(vii).
See Webster v. Colvin, No. 13-CV-2580 (JG), 2014 WL 183936, at *14-15 (E.D.N.Y. Jan. 14,
2014) (going through this analysis).
If the ALJ decides a claimant’s testimony is not credible, the ALJ must set forth
the reasons “with sufficient specificity to permit intelligible plenary review of the record.”
Williams ex rel. Williams v. Bowen, 859 F.2d 255, 261 (2d Cir. 1988) (citation omitted). See

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also Ligon v. Astrue, No. 11-cv-0162, 2012 WL 6005771, at *17 (Dec. 3, 2012) (“[T]he
adjudicator must . . . give specific reasons for the weight given to the individual’s statements.”)
(citation omitted).
In this case, the ALJ found that Tamara’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms, but that Tamara’s “assertions that
the intensity, persistence, and limiting effects of these symptoms are more restrictive than the . . .
[RFC] assessment are not supported by the objective medical evidence and, therefore, are not
credible.” R. 29.
I am mindful that “[i]t is the function of the [Commissioner], not [a reviewing
court], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the
claimant.” Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)
(alterations added). However, I nevertheless conclude that the adverse credibility determination
here is not supported by substantial evidence.
First, the ALJ’s logic – that Tamara’s statements concerning the intensity,
persistence, and limiting effects of her impairments were not credible to the extent they
described limitations greater than the ALJ’s RFC assessment – misapprehends the role of a
claimant’s subjective complaints. The Seventh Circuit has properly rejected this logic on the
ground that it “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). The assessment
of a claimant’s ability to work will often depend on the credibility of her statements concerning
the intensity, persistence, and limiting effects of her symptoms. It makes little sense to decide on
a claimant’s RFC first, before 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.

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Moreover, there is significant evidence in the record that Tamara suffers from
impairments that are more restrictive than the ALJ’s RFC assessment reflects. Her mother’s
testimony that Tamara is unable to go out on her own is uncontroverted, and it is substantiated in
the psychiatric evaluation from Dr. Flach. See R. 319. Moreover, the ALJ did not make a
determination about whether Tamara’s muteness was voluntary, or even consider the effect of
that muteness on her ability to obtain and maintain employment. He simply discontinued
testimony on that subject, apparently finding it not relevant to Tamara’s ability to work. The
ALJ inexplicably discounted evidence that Tamara has not spoken outside the home for at least
seven years – and perhaps up to twelve years – before his decision. See R. 318, 409-10. Instead,
he suggested that her inability to speak was “controllable” and even “intentional.” R. 414. That
view was echoed by counsel for the Commissioner at oral argument, who said, “[W]e may all be
disabled if we just didn’t want to talk to people.” Tr. 8 (Nov. 7, 2014).
The suggestion that Tamara has been faking an inability to speak since elementary
school is inconsistent with the weight of the evidence and with common sense. It is also
inconsistent with Tamara and her mother’s appearance in my courtroom for oral argument,
which the cold transcript of that proceeding cannot adequately reflect. In short, Tamara’s
uncontroverted limitations are inconsistent with the ALJ’s decision that she is able to perform
light work, and the ALJ has failed to put forward any evidence from the record to substantiate his
finding that Tamara’s testimony should be discredited.
C.

Remedy
I have carefully considered the factors that inform the decision whether to remand

for further proceedings or solely for the calculation of benefits. See, e.g., Butts v. Barnhart, 388
F.3d 377, 385-87 (2d Cir. 2004). If remand occurs because the ALJ applied an improper legal

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standard, because there are gaps in the administrative record, or for other similar reasons,
reconsideration of whether the claimant is disabled is usually appropriate. See Butts, 388 F.3d at
385-87; see also Rivera v. Sullivan, 923 F.2d 964, 970 (2d Cir. 1991). Remanding a case for the
calculation of benefits is appropriate where there is no basis to conclude that a more complete
record would support the Commissioner’s decision. Butts, 388 F.3d at 386; Parker, 626 F.2d at
235; see also Primiani v. Astrue, No. 09-cv-2405 (JG), 2010 WL 474642, at *10 (E.D.N.Y. Feb.
5, 2010). In considering whether to remand a case for further proceedings or the calculation of
benefits, I may also consider whether further delay would present a hardship to the claimant. See
Butts, 388 F.3d at 387. As the termination of Tamara’s benefits began over five years ago, I
consider further hardship to her as a factor in my decision.
With an eighth grade education, diabetes, mutism, hyperthyroidism, Grave’s
disease, depression, irregular heart rhythm, and no capability of furthering her skills or training,
Tamara cannot be expected to secure or maintain gainful employment. She struggles each day
with a host of symptoms and limitations that disable her from engaging in many activities of
everyday life. That she can sometimes go online or out shopping with her family does not alter
the inescapable conclusion that her impairments prevent her from engaging in gainful
employment. See Vargas, 838 F.2d at 296 (remand only for calculation of benefits appropriate
where it was obvious that there was an “infinitesimal likelihood that employment of any kind
would be available” for claimant). Because in my view the Commissioner (1) improperly
determined Tamara’s residual functional capacity, and (2) improperly rejected Tamara’s
subjective evidence about her limitations, there is no basis to conclude that a more complete
record might support the Commissioner’s decision, and a remand solely for the calculation of
benefits is warranted.

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CONCLUSION
For the reasons explained above, the Commissioner’s motion is denied and the
case is remanded to the Commissioner solely for the calculation and award of benefits.

So ordered.

John Gleeson, U.S.D.J.

Dated: December 31, 2014
Brooklyn, New York

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