Anderson v. Commissioner of Social Security

Filing 14

MEMORANDUM AND OPINION: For the reasons in the attached, the Court DENIES the Commissioner's 11 motion for judgment on the pleadings and GRANTS Plaintiff's 9 cross-motion. 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 close this case. Ordered by Judge Pamela K. Chen on 3/28/2017. (Gregorio, Heather)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
DAVID ANDERSON,
Plaintiff,
MEMORANDUM & ORDER
15−CV−6720 (PKC)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
----------------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:

Plaintiff David Anderson (“Plaintiff”) brings this action under 42 U.S.C. §§ 405(g) and
1383(c)(3), seeking judicial review of the Social Security Administration’s (“SSA”) denial of his
claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The
parties have cross-moved for judgment on the pleadings. (Dkt. 9.) Plaintiff seeks reversal of the
Acting Commissioner of Social Security’s (“Commissioner”) denial of benefits, and the granting
of other relief the Court may find just. The Commissioner seeks affirmance of the denial of
Plaintiff’s claims. For the reasons set forth below, the Court DENIES the Commissioner’s motion
for judgment on the pleadings and GRANTS the Plaintiff’s cross-motion.
BACKGROUND
I.

PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on September 28, 2012. (Tr. 142.) 1 Plaintiff

claimed disability beginning November 30, 2007, due to psychosis and major depressive disorder.

1

“Tr.” refers to the Administrative Transcript. Page references are to the continuous
pagination of the Administrative Transcript supplied by the Commissioner.

(Tr. 142-43.) On January 30, 2013, SSA denied both of Plaintiff’s claims. (Tr. 46–51.) Plaintiff
requested a hearing before an administrative law judge (“ALJ”) on March 5, 2013. (Tr. 52.) ALJ
Mark Solomon held a hearing on May 6, 2014, where Plaintiff, accompanied by his non-attorney
representative, 2 and a vocational expert testified. (Tr. 29–43.) About a month later, by a decision
dated June 3, 2014, the ALJ denied Plaintiff’s claims. (Tr. 15–25.) On July 7, 2014 an attorney
was appointed to represent Plaintiff. (Tr. 12.) The decision of the ALJ became the final decision
of the Commissioner on November 10, 2015, when the Appeals Council denied Plaintiff’s request
for review. (Tr. 1–4.) Plaintiff timely filed this action on November 23, 2015. (Dkt. 1.)
II.

MEDICAL EVIDENCE
A. Treating Physicians
1. St. Luke’s-Roosevelt Hospital (“St. Luke’s”) Emergency Department
Plaintiff visited the emergency department at St. Luke’s on September 18, 2012,

complaining of depression. (Tr. 183–85.) Glenna Edwards, RN, assessed Plaintiff and reported
that he was alert and oriented in three dimensions, and had not recently tried to hurt himself. (Tr.
184.) She reported that Plaintiff denied suicidal/homicidal ideation but heard voices singing. (Id.)
She wrote that his emotional state was a barrier to his education. (Id.) Plaintiff disclosed that two
of his brothers had schizophrenia. (Id.)
Dr. Michael Tanzer diagnosed Plaintiff with major depression. (Tr. 185.) He discharged
Plaintiff in stable condition, but noted that acuity was Level III, which meant urgent. (Id.)
On September 24, 2012, Plaintiff returned to St. Luke’s, complaining about depression and
paranoia. (Tr. 187.) Steven Curry, RN, assessed Plaintiff as alert and oriented in three dimensions,

2

Although Defendant states that Plaintiff appeared “with his attorney,” the record refers to
Mr. O’Connell as a “representative,” and he stated at the hearing that he worked for the New York
City Human Resources Administration. (Tr. 31.)
2

with cooperative behavior. (Id.) RN Curry reported that Plaintiff had a history of depression, and
that his emotional state was a barrier to his education. (Id.) Once again, Plaintiff denied having
tried to hurt himself or having suicidal thoughts. (Id.) Plaintiff reported having been on medication
for sleep and paranoia, but could not remember the name of the medications. (Id.) Dr. Rachna
Kenia diagnosed Plaintiff with psychotic reactive depression. (Tr. 186.) She admitted him to the
psychiatric ward, where he appeared to stay until September 27, 2012. (Tr. 187, 190.)
2. Don Cohen, LCSW
Upon Plaintiff’s discharge from St. Luke’s on September 27, 2012, Don Cohen, LCSW,
wrote a letter stating that Plaintiff had been in the hospital’s care from September 24 through
September 27, 2012, but was “fit and able to return to work immediately.” (Tr. 190.)
3. Dr. Daniel Cohen and Deborah Morgan, LCSW
On October 10, 2012, Plaintiff met “briefly” with Deborah Morgan, LCSW, at St. Luke’s.
(Tr. 203.) LCSW Morgan wrote that Plaintiff was able to engage, that his affect was restricted,
and that his mood was normal. (Id.) She wrote that Plaintiff lived with his sister, who helped him
with money for food. (Id.) LCSW Morgan offered to write a letter in support of Plaintiff’s SSI
application. (Id.)
In a letter dated October 11, 2012, Plaintiff’s treating psychiatrist, Dr. Daniel Cohen, and
LCSW Morgan, his treating social worker, wrote that Plaintiff was receiving outpatient psychiatric
services at St. Luke’s with a diagnosis of Major Depressive Disorder, Recurrent with Psychotic
Features. (Tr. 191.) Plaintiff’s recent hospitalization had been a result of “bizarre thought,
auditory hallucinations, mood and sleep disturbance.” (Id.) As a result, Plaintiff had been
prescribed 20mg of Zyprexa and 10mg of Prozac, and was receiving monthly supportive therapy
from both Dr. Cohen and LCSW Morgan. (Id.) Dr. Cohen and LCSW Morgan concluded that

3

Plaintiff had no benefits, and they “strongly recommend[ed] he be awarded SSI based on the
severity of his mental illness.” (Tr. 191.)
On November 14, 2012, Plaintiff visited Dr. Cohen at St. Luke’s. (Tr. 193.) In a record
of the same date, Dr. Cohen wrote that Plaintiff likely had schizophrenia, and had reported a tenyear decline and “depression,” including auditory hallucinations. (Id.) Plaintiff denied having
attempted suicide, and admitted to cocaine and cannabis use in the past. (Id.) Dr. Cohen described
Plaintiff as having “[n]o evidence of acute psychosis or depression” and “sleeping well.” (Id.) His
diagnoses were listed as “Major Depressive Disorder, Recurrent Type with Psychotic Features” as
of October 11, 2012, and “Schizophrenia, Paranoid Type” as of November 14, 2012. (Tr. 197.)
In the section titled “Comprehensive Mental Status,” Dr. Cohen indicated that Plaintiff had no
threatening behavior, appropriate eye contact, no signs of agitation, and appropriate ambulation.
(Tr. 194.) He also indicated on the form that Plaintiff’s mood was both “pleasant” and “tense,”
and his affect was “blunted.” (Id.) He wrote that Plaintiff was able to concentrate, had intact
judgment and memory function, and insight. (Tr. 195.) In addition, Dr. Cohen wrote that Plaintiff
was “[i]mproving, stable on medications” and should continue with his medications and follow up
with Dr. Cohen and LCSW Morgan in a month. (Tr. 197–98.) Dr. Cohen wrote that Plaintiff had
not reached “optimum improvement.” (Tr. 98.)
Also on November 14, 2012, Plaintiff met again with LCSW Morgan. (Tr. 199.) He
reported that the bus and subway being out of service was a bit depressing for him. (Id.) He denied
auditory hallucination of voices, but stated that he heard music sometimes. (Id.) He did not present
with any delusions during the session, and appeared to be engaging in treatment with LCSW
Morgan and Dr. Cohen. (Id.) Plaintiff spoke about reading the newspaper and watching the news,
and he agreed to try “making small steps to lif[t] his mood” such as going to the library and taking

4

walks. (Id.) LCSW Morgan noted no significant changes in his mental status or behavior, wrote
that Plaintiff was sleeping “ok” and reported taking his medication. (Id.) She also wrote that he
did not have thoughts of self-harm or suicide. (Id.)
Dr. Cohen filled out a Psychiatric Medical Report on March 21, 2013. (Tr. 234.) He again
reported that Plaintiff had paranoid schizophrenia and was on Prozac and Zyprexa. (Id.) Plaintiff
appeared calm, pleasant, and cooperative. (Id.) Plaintiff reported having audio hallucination in
which he heard birdcalls. (Id.) His mood was “depressed” and his affect was “constricted/blunted.”
He also reported that Plaintiff had “below average” sensorium and intellectual functions with
regard to information. (Tr. 235.) His memory was intact, his attention and concentration were
adequate, and he was oriented in three dimensions. (Id.) Regarding activities of daily living,
Plaintiff stated that he spent his days reading, watching television, and going for walks, and he had
limited to no social interaction. (Tr. 236.)
Dr. Cohen reported in the March 21, 2013 Psychiatric Medical Report that Plaintiff was
“unable” to function in a work setting. (Tr. 236.) In his Medical Source Statement of Ability to
Do Work-Related Activities (Mental) Report of the same date, Dr. Cohen stated that Plaintiff had
a moderate restriction in understanding and remembering simple instructions, a marked restriction
in carrying out simple instructions, and extreme restrictions in his ability to make judgments on
simple work-related decisions, to understand and remember complex instructions, and to make
judgments on complex work-related decisions. (Tr. 238.) He reported that Plaintiff had moderate
restrictions in interacting appropriately with the public, marked restrictions in interacting
appropriately with supervisors and co-workers, and extreme restrictions responding appropriately
to usual work situations and to changes in a routine work setting. (Tr. 239.)

5

B. Consultative Source: G. Kleinerman
Psychiatric medical consultant G. Kleinerman 3 filled out a Psychiatric Review Technique
report on December 20, 2012, indicating that Plaintiff was being evaluated for “Schizophrenic,
Paranoid and other Psychotic Disorders” as well as “Affective Disorders.” (Tr. 206.) Kleinerman
checked off the box indicating that “A medically determinable impairment is present that does not
precisely satisfy the diagnostic criteria” in the form. (Tr. 208.) He noted that Plaintiff’s primary
diagnosis was “Schizophrenia, paranoid type” and this diagnosis was substantiated by pertinent
symptoms, signs, and laboratory findings, although there were currently no signs of psychosis.
(Id.) Kleinerman also noted that Plaintiff’s affect disorder, Major Depressive Disorder, was also
substantiated. He wrote that Plaintiff acknowledged cocaine and cannabis use. (Tr. 214.) Plaintiff
was assessed to only have “mild” limitations in restrictions of activities of daily living, difficulties
in maintaining social functioning, and difficulties in maintaining concentration, persistence or
pace. (Tr. 216.) Kleinerman reported that the evidence did not establish the presence of paragraph
C criteria of the listings. (Tr. 217.)
On December 20, 2012, Kleinerman also filled out a Mental Residual Functional Capacity
Assessment, which indicated that Plaintiff was not significantly limited in any of the designated
categories, but suffered a moderate limitation in “the ability to set realistic goals or make plans
independently of others.” (Tr. 222.) After briefly summarizing the reports from Dr. Cohen and
LCSW Cohen, Kleinerman concluded that Plaintiff “retains the capacities for remembering,
understanding and carrying out instructions, for relating appropriately under conditions of reduced
interpersonal contact, and for exercising judgment appropriately in the workplace.” (Tr. 223.)

3

The record does not indicate whether Kleinerman is a physician, merely noting
“psychiatry” next to his name. (Tr. 206.)
6

III.

NON-MEDICAL EVIDENCE
A. Plaintiff’s Self-Reporting and Testimony
1. October 17, 2012 Disability Report (SSA Field Office)
On October 17, 2012, A. Ferruggia, the representative from the SSA field office, had a

face-to-face interview with Plaintiff. (Tr. 139.) In the “observations” section of the report,
Ferruggia indicated that Plaintiff had difficulty with “answering”, but none of the other listed
difficulties. (Tr. 140.) Ferruggia also noted that Plaintiff was dressed appropriately and was wellmannered, that he had problems recalling certain information and dates from the past, and that he
had stated that his memory was “not too good.” (Id.)
2. October 19, 2012 Disability Report (Adult Form)
In his October 19, 2012 Disability Report form, Plaintiff indicated that his highest level of
education was completion of the eighth grade. (Tr. 144.) In the ten years leading up to his
disability, Plaintiff worked in part-time and full-time positions. Plaintiff worked as a security
guard from 1997 until 2007 and as a waiter/server from 1997 to 1998. (Id.) Plaintiff was told not
to return to his most recent job on November 30, 2007, and he believes it was due to his disability.
(Tr. 143.) Plaintiff reported that he interviewed for a job with a security company in 2012 through
Career and Educational Consultants, and believes he was not hired due to his disability, which
subsequently increased his depression. (Tr. 148.) He reported taking Fluoxetine and Olanzapine
for his psychosis, and Lorazepam for his Insomnia. (Tr. 145.)
3. November 5, 2012 Statement of Activities of Daily Living
In his November 5, 2012 Statement of Activities of Daily Living form, Plaintiff reported
that he did not drive because he did not own a car. (Tr. 150.) He was able to shop for food every

7

few days and for clothing about once a month if he had the money. (Id.) He stated that he was
able to pay bills, count change, and handle a savings account, and that his ability to handle finances
had not changed as a result of his condition. (Id.) Each day, Plaintiff watched television, looked
at pictures in the newspapers, read, and went for walks. (Tr. 150, 153.) He also went to church
about twice a month, which was the only time he spent with others. (Tr. 151.) Although he
reported no problems getting along with family, friends, neighbors, or others, he reported that his
condition affected his social activities because his “confidence level is not what it used to be.” (Tr.
151.) Plaintiff wrote that before his illness, he was able to be more independent and function
properly, but that he could not do those things anymore. (Tr. 153.) He lived with his sister and
did not take care of anyone else or a pet. (Tr. 36, 152–53.)
Plaintiff asserted that he had no problems with self-care; he prepared his own meals, did
laundry, washed dishes, and swept his residence. (Tr. 153, 156.) When Plaintiff felt depressed,
he would have difficulty paying attention and finishing what he had started. (Tr. 155.) He said he
got depressed from stress or changes in schedule. (Tr. 158.)
Plaintiff also wrote that he had lost a job due to problems getting along with people, and
specifically had been written up for insubordination. (Tr. 155.)
4. March 3, 2013 Disability Report (Appeals)
In this form, Plaintiff reaffirmed his basic information and information about his disability.
He indicated that since his last disability report, beginning on January 30, 2013, his depression had
worsened and he was having difficulty eating. (Tr. 161.)
5. Plaintiff’s Testimony at the May 6, 2014 ALJ Hearing
At the May 6, 2014 hearing before the ALJ, Plaintiff testified that the highest level of
education he had completed was ninth grade. (Tr. 33.) His most recent work was in 2007. (Tr.

8

34.) Plaintiff testified that he formerly worked full-time as a security guard for various companies,
and briefly worked part-time as a waiter. (Tr. 34–35.) When he was terminated from his job, he
was not told the reason, and he thought it might have been because he lacked confidence. (Tr. 37.)
At the time of the hearing, he lived with his sister, but was able to maintain his own hygiene and
self-grooming. (Tr. 36.) Plaintiff testified that his daily activities included watching television
and going for walks in the park. (Id.) Plaintiff reported seeing both a psychiatrist and a social
worker typically one to two times a month. (Tr. 36–37.)
Plaintiff testified that he felt he was unable to work because his performance would not
meet appropriate standards. (Tr. 38, 40.) Specifically, he had auditory hallucinations when he got
depressed, which was about two times per day, and he felt that these hallucinations might distract
him at work and cause him to be unable to follow instructions. (Tr. 38, 41.) When asked about
medications, he testified that the medications helped with these symptoms and that he was able to
take the medications on his own without being reminded. (Tr. 38, 40.) Plaintiff testified that he
got along “okay” with other people. (Tr. 38–39.)
B. Vocational Expert Testimony
Miriam Greene, a neutral vocational expert (“VE”), also testified at the ALJ hearing. (Tr.
41.) The ALJ asked the VE to assume Plaintiff had the ability to perform work-related activities
without exertional limitations, had the ability to perform the full range of simple, repetitive work
(including the ability to understand, remember, and carry out simple instructions), make simple
work-related decision, respond appropriately to supervision, coworkers, and usual work settings,
deal with changes in routine and maintain attention and concentration, whether or not he would be
able to do his past job as a security guard. (Tr. 42.) The VE responded in the negative, but
answered affirmatively when asked if those limitations would allow a person to do the “full range

9

of unskilled work.” (Tr. 41–42.) When asked if Plaintiff would be able to do any job if the ALJ
found that he “would be unable to maintain attention and concentration for (INAUDIBLE) work,”
“had no useful ability to interact with others,” “would be off task more than 10 percent of the
time,” was “incapable of even low-stress work,” or “was unable to maintain a regular schedule,”
the VE responded “no” to each separate scenario. (Tr. 42–43.)
DISCUSSION
I.

STANDARD OF REVIEW
Unsuccessful claimants for disability benefits under the Social Security Act (the “Act”)

may bring an action in federal district court seeking judicial review of the Commissioner’s denial
of their benefits “within sixty days after the mailing . . . of notice of such decision or within such
further time as the Commissioner of Social Security may allow.” 42 U.S.C. §§ 405(g), 1383(c)(3).
In reviewing a final decision of the Commissioner, the Court’s duty is “limited to determining
whether the SSA’s conclusions were supported by substantial evidence in the record and were
based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
“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.”
Id. (internal citation omitted). However, “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
10

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.

ELIGIBILITY
BENEFITS

STANDARD

FOR

SOCIAL

SECURITY

DISABILITY

To receive DIB or SSI, claimants must be disabled within the meaning of the Act. The
definition of “disabled” is the same for the purposes of receiving DIB and SSI benefits. Claimants
establish disability status by demonstrating an inability “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 12 months.” 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3). The claimant bears the initial burden of proof on disability status
and must demonstrate disability status by presenting medical signs and findings, established by
“medically acceptable clinical or laboratory diagnostic techniques,” as well as any other evidence
the Commissioner may require. 42 U.S.C. §§ 423(d)(5)(A), 1382c(a)(3)(D); but see Rosa v.
Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (“[W]here there are deficiencies in the record, an ALJ is
under an affirmative obligation to develop a claimant’s medical history even when the claimant is
represented by counsel or by a paralegal.”) (internal alterations and quotation marks omitted).
ALJs must adhere to a five-step inquiry to determine whether a claimant is disabled under
the Act as set forth in 20 C.F.R. §§ 404.1520(a)(1), 416.920. If at any step the ALJ finds that the
claimant is either disabled or not disabled, the inquiry ends there. First, the ALJ determines
whether the claimant is currently engaged in “substantial gainful activity.”

20 C.F.R. §§

404.1520(a)(4)(i), 416.920(a)(4)(i). If so, the claimant is not disabled. If not, the ALJ proceeds
to the second step to determine whether the claimant suffers from a “severe impairment.” 20
C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is “severe” if it “significantly
limits [claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. §§
11

404.1520(a)(c), 416.920(a)(c). If the impairment is not severe, the claimant is not disabled. If it
is, the ALJ proceeds to the third step, which considers whether the impairment meets or equals
one of the impairments listed in the Act’s regulations (“Listings”). 20 CFR §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1. In the context of mental
impairments, this step requires an ALJ to include a specific finding with respect to the claimant’s
degree of limitation in each of four broad functional areas: (1) activities of daily living; (2) social
functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. 20
C.F.R. §§ 404.1520a(c)(3), 404.1520a(e)(4), 416.920a(c)(3), 416.920a(e)(4).
If the ALJ determines at step three that the claimant has a listed impairment, the ALJ will
find the claimant disabled. If the claimant does not have a listed impairment, the ALJ makes a
finding about the claimant’s “residual functional capacity” (“RFC”) before moving onto steps four
and five. A claimant’s RFC is an assessment of “the most [the claimant] can still do despite [his
or her physical or mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). At the fourth
step, the ALJ considers whether, in light of the claimant’s RFC, he or she is able to perform past
relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If so, the claimant is not
disabled. If not, the ALJ proceeds to the fifth step, where the burden shifts to the ALJ to
demonstrate that the claimant has the capacity to perform other substantial gainful work which
exists in the national economy, considering the claimant’s RFC, age, education, and work
experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If so, the claimant is not disabled.
If not, the claimant is disabled and entitled to benefits. Id.
III.

THE ALJ’S DECISION
On June 3, 2014, the ALJ issued a decision denying Plaintiff’s claim. (Tr. 25.) The ALJ

found that Plaintiff had not engaged in substantive gainful activity since November 30, 2007, the
alleged onset date. (Tr. 20.) The ALJ found that Plaintiff had one medically determinable
12

impairment: paranoid schizophrenia. (Id.) However, the ALJ found that Plaintiff did not have a
severe impairment because Plaintiff had the ability to perform basic work-related activities 4 for 12
consecutive months. (Id.) Therefore the ALJ denied Plaintiff’s claim at Step Two.
The ALJ found that Plaintiff’s paranoid schizophrenia could reasonably be expected to
produce the alleged symptoms, but found that Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of the symptoms were not credible.
In making his credibility determination, the ALJ noted Plaintiff’s hospitalization on
September 18, 2012, and the September 27, 2012 report that Plaintiff was “fit and able to return to
work immediately.” (Tr. 21.) He gave “no weight” to the letter from LCSW Morgan and Dr.
Cohen, recommending that Plaintiff be approved for SSI, because they had not cited specific
vocational limitations nor explained why Plaintiff’s condition had gotten worse since Dr. Cohen’s
report that Plaintiff was “fit and able to return to work immediately.” (Tr. 22.) The ALJ also noted
that their assessment was contrary to other findings, including subsequent treatment reports, and
was conclusory. (Id.) In particular, the ALJ noted that in Dr. Cohen’s November 14, 2012 report,
he had reported that Plaintiff had normal functions in almost all respects (apart from hearing
music). (Id.) At the November 14, 2012 visit, Dr. Cohen had diagnosed Plaintiff with paranoid
schizophrenia, but noted that he was “improving, stable on medications.” (Id.)
The ALJ also discussed Dr. Cohen’s March 21, 2013 psychiatric medical report, again
noting the many aspects of the report that showed normal functioning in many areas. (Id.) The
ALJ noted that, according to Dr. Cohen, Plaintiff described auditory hallucinations of birdcalls, a

4

These basic work-related activities include walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, handling, seeing, hearing, speaking, understanding, carrying out and
remembering simple instructions, use of judgment, responding appropriately to supervision, coworkers, and usual work situations, and dealing with changes in a routine work setting. (Tr. 21.)
13

depressed mood, and constricted affect. (Id.) The ALJ also noted that while Dr. Cohen indicated
that Plaintiff had “limited to no social interaction” and concluded that Plaintiff was “unable” to
function in a work setting, the doctor did not provide specific functional limitations. (Id.) The
ALJ gave this opinion “little weight”, in light of Dr. Cohen’s observations that Plaintiff’s memory
was intact, his judgment was not impaired, and his insight was fair, as well as in light of the
treatment notes from Plaintiff’s November 2012 visit. (Id.)
The ALJ also gave “little weight” to Dr. Cohen’s medical source statement of Plaintiff’s
ability to perform work-related mental activities, which had asserted that Plaintiff had extreme
limitations in his ability to make judgments on simple or complex work-related decisions, in his
ability to understand, remember, and carry out complex instructions, and in his ability to respond
appropriately to usual work situations and changes in his routine work setting; moderate limitations
in his ability to understand and remember simple instructions, and in his ability to interact
appropriately with the public; and marked limitations in his ability to carry out simple instructions
and in his ability to interact appropriately with supervisors or coworkers. (Tr. 23–24.) The ALJ
stated in a somewhat conclusory fashion that he gave this opinion little weight because it was
contrary to the treatment notes which gave “a more accurate picture of [Plaintiff’s] ability to
function”, as did Plaintiff’s own testimony, which indicated that he was not as limited as Dr. Cohen
had reported. (Tr. 24.)
The ALJ gave “substantial weight” to the finding of the non-examining state agency
reviewers, which found that Plaintiff had no more than mild limitations in any area of mental
functioning. (Id.) The ALJ did not adopt their recommendation for low contact work, because he
found that it was inconsistent with their finding that Plaintiff had no severe impairment. (Id.)

14

The ALJ emphasized that at the hearing, Plaintiff had testified that he could travel by
himself, perform activities of daily living, and spent his days watching television and going for
walks in the park. (Id.) He noted that Plaintiff acknowledged that he had no side effects from
medication and that he did not know why he was terminated from his job. (Id.) The ALJ further
noted that although Plaintiff stated that he heard voices, he also confirmed that his medications
helped, and that Plaintiff stated that he minded his own business and got along with others
adequately. (Id.)
The ALJ briefly went through the required analysis for mental impairments. (Id.) He
found that Plaintiff had mild limitation in daily living, social functioning, concentration,
persistence and pace, and that Plaintiff had experienced no extended episodes of decompensation.
(Tr. 23-24.) Thus the ALJ concluded that the “paragraph B” criteria were not satisfied. (Tr. 25.)
The ALJ further found that the evidence did not establish the presence of the “paragraph C”
criteria. (Tr. 24.)
IV.

THE ALJ VIOLATED THE TREATING PHYSICIAN RULE
Plaintiff’s primary argument on appeal is that Defendant violated the treating physician

rule by giving Dr. Cohen and LCSW Morgan’s opinions little or no weight, and by giving
substantial weight to the opinion of Kleinerman, a consultative source who did not even evaluate
Plaintiff in person. 5 Plaintiff also argues that the ALJ had a duty to further develop the record
before disregarding the opinion of the treating physicians. The Court agrees on both counts.

5

It is not clear the extent to which the ALJ relied upon the opinion of Ferruggia, the SSA
Field Office representative.
15

A. The ALJ Erred in According Little Weight to Plaintiff’s Treating Psychiatrist and
in According Substantial Weight to the Consultative Examiner
The treating physician rule “generally requires deference to the medical opinion of a
claimant's treating physician[.]” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004); see 20
C.F.R. § 404.1527(c)(1) (“Generally, [the Commissioner] give[s] more weight to the opinion of a
source who has examined you than to the opinion of a source who has not examined you.”).
According to SSA regulations, the Commissioner will give “controlling weight” to “a treating
source's opinion on the issue(s) of the nature and severity of ... impairment(s) [so long as the
opinion] is well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence” in the record.
404.1527(c)(2).

20 C.F.R. §

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).
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).
“An ALJ who refuses to accord controlling weight to the medical opinion of a treating
physician must consider various ‘factors’ to determine how much weight to give to the opinion.”
Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2), now codified at 20 C.F.R. §
404.1527(c)(2)). If the ALJ does not afford “controlling weight” to opinions from treating
physicians, he needs 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
16

opinion:” (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 188; accord Burgess v. Astrue, 537 F.3d 117, 128 (2d
Cir.2008). Although “[t]he ALJ is not required to explicitly discuss the factors,” “it must be clear
from the decision that the proper analysis was undertaken.” Elliott v. Colvin, 13-CV-2673, 2014
WL 4793452, *15 (E.D.N.Y. Sept. 24, 2014).
Furthermore, when a treating physician’s opinions are repudiated, the ALJ must
“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 erred in assigning little weight to Dr. Cohen’s and LCSW Morgan’s observations
and opinions. Although he was correct that Dr. Cohen and LCSW Morgan’s October 11, 2012
letter did not provide sufficient information to support its conclusion that Plaintiff should be
awarded SSI benefits, both Dr. Cohen and LCSW Morgan continued to treat Plaintiff, and offered
more in depth opinions in the following months. Dr. Cohen reported in March 2013 that he had

17

been treating Plaintiff monthly since the previous September, and Plaintiff met with LCSW
Morgan at least one more time during that time-span.
The ALJ’s conclusion that Dr. Cohen’s findings of extreme, marked, and moderate
limitations were “contrary to the treatment notes” is not supported by substantial evidence. Dr.
Cohen found that Plaintiff had extreme limitations in the ability to make judgments on simple
work-related decisions, in his ability to understand, remember, and carry out complex instructions,
in his ability to make judgments on complex work-related decisions, and in his ability to respond
appropriately to usual work situations and to changes in a routine work setting. He found marked
limitations in Plaintiff’s ability to carry out simple instructions and in his ability to interact
appropriately with supervisors and co-workers, and moderate limitations in his ability to interact
appropriately with the public. The ALJ does not explain which portions of the “treatment notes”
contradicted these findings. The observances he discussed, such as that Plaintiff was alert and
oriented, that his memory and judgment were not impaired, and that Plaintiff could care for
himself, do not necessarily contradict Dr. Cohen’s findings about Plaintiff’s work-related
limitations because they address different, albeit related, topics. At the least, the ALJ had a duty
to further develop the record to reconcile any apparent contradictions in Dr. Cohen’s findings, as
detailed in Part IV(B), infra.
Furthermore, the ALJ did not discuss the elements of Dr. Cohen’s treatment notes that
corroborated the limitations he found, such as Plaintiff’s depressed mood, auditory hallucinations,
“below average” sensorium and intellectual functions with regard to information, and limited to
no social interaction. Particularly in light of the VE’s finding that a person with Plaintiff’s
characteristics who “had no useful ability to interact with others,” would not be able to work, the
ALJ was required to explain why he did not credit Dr. Cohen’s finding regarding Plaintiff’s

18

“limited to no social interaction.” See Nusraty v. Colvin, 15-CV-2018, 2016 WL 5477588, *11
(E.D.N.Y. Sept. 29, 2016) (finding that “the ALJ’s conclusion that [the treating physician’s]
opinion is inconsistent with his own notes and with the medical record is not supported by
substantial evidence because the ALJ failed to consider the evidence in the record that is consistent
with [the treating physician’s opinion]”); Poles v. Colvin, 14-CV-6622, 2015 WL 6024400, at *4
(W.D.N.Y. Oct. 15, 2015) (finding that because the ALJ did not discuss records that undermined
his conclusion, that conclusion was “improperly based on a selective citation to, and
mischaracterization of, the record”); Arias v. Astrue, 11-CV-1614, 2012 WL 6705873, at *2
(S.D.N.Y. Dec. 21, 2012) (“The ALJ may not simply ignore contradictory evidence. When the
record contains testimony tending to contradict the ALJ’s conclusion, the ALJ must acknowledge
the contradiction and explain why the conflicting testimony is being disregarded.”)
Finally, LCSW Cohen’s letter stating that Plaintiff was “fit and able to return to work
immediately” does not deserve substantial weight in the absence of any information regarding
whether LCSW Cohen actually examined Plaintiff, the extent or nature of that examination, or the
context of the letter, e.g., whether it was a standard part of a patient’s discharge, especially given
the subsequent contrary assessments by Plaintiff’s treating psychiatrist and social worker.
The Court further finds that the ALJ erred in assigning “[s]ubstantial weight” to medical
consultant Kleinerman’s opinion, in light of the fact that Kleinerman did not examine Plaintiff and
relied only on Dr. Cohen’s treatment notes. The opinion of a consultative physician “who only
examined a Plaintiff once, 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)).
Plaintiff’s treating physician drew one conclusion from his own treatment notes; the medical

19

consultant reviewed the same notes and drew a different conclusion. The law is clear that in such
a situation, an ALJ is not permitted to credit the consultative opinion without “comprehensively
set[ting] forth” “good reasons.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.2004); see also
Burgin v. Astrue, 348 F. App'x 646, 648 (2d Cir. 2009) (“The failure to provide ‘good reasons' for
not crediting a treating source’s opinion is ground for remand.”). The ALJ plainly failed to do that
here; indeed, he offered no explanation for according substantial weight to Kleinerman’s opinion.
He merely repeated Kleinerman’s findings, and found them to be “consistent with a finding that
[Plaintiff] has no severe impairment.” (Tr. 23.) Such an explanation is conclusory and woefully
insufficient.
B. The ALJ Had a Duty to Further Develop the Record
To the extent that the ALJ concluded that the record contradicted Dr. Cohen’s and LCSW
Morgan’s findings, he had an “affirmative duty” to develop the record and “should have followed
up with [the treating physicians] to request supporting documentation or to obtain additional
explanations for [their] findings.” Nusraty, 2016 WL 5477588, at *13. See also Ahisar, 14-CV4134, 2015 WL 5719710, at *12 (E.D.N.Y. Sept. 29, 2015) (“[I]f 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.” (quotations omitted)).
Here, the ALJ essentially concluded that Dr. Cohen’s report was “inconsistent with the
physician’s other reports,” id., and thus he had a duty to seek additional clarification and
information. The Court finds that this duty was especially clear in light of the fact that the opinion
the ALJ did credit—Kleinerman’s—was based on the reported observations and treatment notes
of Dr. Cohen. Thus, the Court finds it inexplicable that the ALJ would not have sought clarification

20

from Dr. Cohen regarding the apparent discrepancy between Dr. Cohen’s observations and his
diagnosis and conclusions.
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. 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 close this case.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge

Dated: Brooklyn, New York
March 28, 2017

21