Davilar v. Commissioner of Social Secuity

Filing 19

MEMORANDUM OF DECISION AND ORDER: As set forth in the Court's March 31, 2017 Memorandum of Decision and Order, Defendant's motion for judgment on the pleadings 15 is hereby DENIED. Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) the Commissioner's decision is remanded for further proceedings and additional findings consistent with this Memorandum of Decision and Order. The Clerk of the Court is respectfully requested to enter judgment accordingly. See attached Memorandum and Order for details. The Clerk of Court is directed to mail a copy of this order to the pro se plaintiff. Ordered by Judge LaShann DeArcy Hall on 3/31/2017. (Jackson, Kyla)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------x

NOT FOR PUBLICATION

NATALIE DAVILAR
SUMMARY ORDER
Plaintiff,
15-CV-7200 (LDH)
-againstCOMMISSIONER OF SOCIAL SECURITY
Defendant.
------------------------------------------------------------------x
LASHANN DEARCY HALL, United States District Judge:
Plaintiff Natalie Davilar, proceeding pro se, appeals the denial of Defendant
Commissioner of Social Security’s (the “Commissioner”) denial of her application for disability
insurance benefits and supplemental social security income. Defendant has moved pursuant to
Federal Rule of Civil Procedure 12(c) for judgment on the pleadings, requesting that this Court
affirm the Commissioner’s determination that Plaintiff was not disabled. Despite having been
granted additional time to respond to Defendant’s motion (see Order, Nov. 13, 2016), Plaintiff
has failed to submit an opposition.
BACKGROUND
Plaintiff filed an application for disability insurance benefits and supplemental security
income on August 30, 2012, alleging a disability onset date of October 12, 2010. (Tr. 20, 56. 97,
194, ECF No. 7.)1 Plaintiff alleged that she was disabled due to depression, anxiety, panic
attacks, emotional instability, high blood pressure, a “weight problem,” and heart
disease/hardening muscle. (Tr. 221; Complaint 1, ECF No. 1.) Plaintiff’s claims were denied on
February 4, 2013, and Plaintiff subsequently requested an administrative hearing. (Tr. 79, 89.)

Citations to “Tr.” refer to the certified copy of the administrative record of proceedings filed by the Commissioner
as part of her answer.
1

1

A hearing was held on August 1, 2014. (Tr. 33-55.) On August 15, 2014, the administrative law
judge (the “ALJ”) denied Plaintiff’s claim. (Tr. 17-27.) Plaintiff filed a request for review with
the Appeals Council, which was denied on October 16, 2015, making the ALJ’s decision final.
(Tr. 2-4.) The Court assumes the parties’ familiarity with Plaintiff’s medical history, contained
in the administrative transcript, and set forth in Defendant’s memorandum of law in support of
her motion.
STANDARD OF REVIEW
A motion for judgment on the pleadings is reviewed under the same standard as a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6). Bank of New York v. First
Millennium, 607 F.3d 905, 922 (2d Cir. 2010) (“The same standard applicable to Fed. R. Civ. P.
12(b)(6) motions to dismiss applies to Fed. R. Civ. P. 12(c) motions for judgment on the
pleadings.”). Even where a motion for judgment on the pleadings is unopposed, the Court must
still review the entire record and ensure that the moving party is entitled to judgment as a matter
of law. See Martell v. Astrue, No. 09-cv-1701, 2010 WL 4159383, at *2 n.4 (S.D.N.Y. Oct. 20,
2010) (confirming court’s obligation to review entire record in deciding unopposed motion for
judgment on the pleadings in social security benefits case); McDowell v. Comm’r of Soc. Sec.,
No. 08-cv-1783, 2010 WL 5026745, at *1 (E.D.N.Y. Dec. 3, 2010) (“Even where such a motion
is unopposed, the court may not grant the motion by default.”). Further, when a plaintiff
proceeds pro se, the court will read her submissions liberally and “interpret them to raise the
strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)
(citing Mikinberg v. Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir. 1993)).
Under the Social Security Act, a disability claimant may seek judicial review of the
Commissioner’s decision to deny her application for benefits. 42 U.S.C. §§ 405(g), 1383(c)(3);

2

see also Felder v. Astrue, No. 10-cv-5747, 2012 WL 3993594, at *8 (E.D.N.Y. Sept. 11, 2012).
In conducting such review, the Court is tasked only with determining whether the
Commissioner’s decision is based on correct legal standards and supported by substantial
evidence. 42 U.S.C. § 405(g); see also Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)
(citing Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)).
The substantial evidence standard does not require that the Commissioner’s decision be
supported by a preponderance of the evidence. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir.
1982) (“[A] factual issue in a benefits proceeding need not be resolved in accordance with the
preponderance of the evidence . . . .”). Instead, the Commissioner’s decision need only be
supported by “more than a mere scintilla” of evidence and by “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Pollard v. Halter, 377 F.3d
183, 188 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In deciding
whether the Commissioner’s findings are supported by substantial evidence, the Court must
examine the entire record and consider all evidence that could either support or contradict the
Commissioner’s determination. See Jones ex. rel. T.J. v. Astrue, No. 07-cv-4886, 2010 WL
1049283, at *4 (E.D.N.Y. Mar. 17, 2010) (citing Snell v. Apfel, 171 F.3d 128, 132 (2d Cir.
1999)), aff’d sub nom. Jones ex rel. Jones v. Comm’r of Soc. Sec., 432 F. App’x 23 (2d Cir.
2011). Still, the Court must defer to the Commissioner’s conclusions regarding the weight of
conflicting evidence. See Cage v. Comm’r of Social Sec., 692 F.3d 118, 122 (2d Cir. 2012)
(citing Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998)). If the Commissioner’s
findings are supported by substantial evidence, then they are conclusive and must be affirmed.
Ortiz v. Comm’r of Soc. Sec., No. 15-cv-3966, 2016 WL 3264162, at *3 (E.D.N.Y. June 14,
2016) (citing 42 U.S.C. § 405(g)). Indeed, if supported by substantial evidence, the

3

Commissioner’s findings must be sustained, even if substantial evidence could support a
contrary conclusion or where the Court’s independent analysis might differ from the
Commissioner’s. Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Rutherford
v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982)); Anderson v. Sullivan, 725 F. Supp. 704, 706
(W.D.N.Y. 1989); Spena v. Heckler, 587 F. Supp. 1279, 1282 (S.D.N.Y. 1984)).
The Code of Federal Regulations for Social Security (the “Regulations”) establishes a
sequential five-step process for determining whether a claimant is disabled within the meaning of
the Act. 20 C.F.R. §§ 404.1520(a)-(h), 416.920(a)-(h). At the first step, the Commissioner must
determine whether the claimant is engaged in substantial gainful activity. Id. §§ 404.1520(b),
416.920(b). If not, the Commissioner must proceed to the second step to determine whether the
claimant has a severe medically determinable impairment or combination of impairments. Id. §§
404.1520(c), 416.920(c). An impairment is severe if it significantly limits a claimant’s abilities
to perform “basic work activities.” Id. §§ 404.1520(c), 416.920(c). If the claimant has a
medically determinable severe impairment, the Commissioner will proceed to step three to
determine whether any identified severe impairments meet or medically equal those identified in
Appendix 1 to the Act. Id. §§ 404.1520(d), 416.920(d). Such impairments are per se disabling if
a claimant meets the duration requirements. Id. §§ 404.1520(d), 416.920(d).
When evaluating the severity of mental impairments, the Regulations require the ALJ to
apply an additional “special technique” at the second and third steps of the review. See 20
C.F.R. §§ 404.1520a(a), 416.920a(a); see also Kohler v. Astrue, 546 F. 3d 260, 265-66 (2d Cir.
2008).2 First, the ALJ must determine whether the claimant has a medically determinable

On January 17, 2017, following the date of the ALJ’s decision, new regulations came into effect changing the test
applied to assess whether a mental impairment is disabling. See Evaluation of Mental Impairments, 20 C.F.R.
§ 404.1520a (2017). The Court applies the regulations in effect at the time of the ALJ’s decision. See Revised Med.
Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138-01, 66138 n.1 (Sept. 26, 2016) (“We expect that
2

4

mental impairment. See 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). Second, if such a mental
impairment is found, the ALJ must rate the degree of the claimant’s functional limitations in
light of the impairment(s) in four 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), 416.920a(c)(3). The ALJ must make a specific finding as to the degree of
limitation in each of the functional areas. 20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4). If a
claimant’s mental impairment is severe, the ALJ will determine whether the impairment meets or
medically equals the severity of a listed mental disorder. Id. §§ 404.1520a(d)(2); 416.920a(d)(2).
If an impairment meets or equals an impairment found in a listing, the claimant is disabled. Id.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If it does not, the ALJ proceeds to step four of the
evaluation process. Id. §§ 404.1520a(d)(3), 416.920a(d)(3).
If a claimant’s impairments are not per se disabling, the ALJ must assess the claimant’s
ability to work in light of her limitations, otherwise known as her residual functional capacity
(“RFC”). Id. §§ 404.1520(a)(4)(iv), 404.1520a(d)(3), 404.1545(a)(1), 416.920(e). Once the
claimant’s RFC is decided, the Commissioner must undertake to establish whether the claimant’s
RFC will allow her to perform past relevant work. Id. §§ 404.1520(f), 416.920(f). If the
claimant’s RFC precludes her from performing past relevant work, the Commissioner bears the
burden of proving that, given her RFC, age, education, and work experience, the claimant can do
other work that exists in significant numbers in the national economy. Id. §§ 404.1512(f),
416.912(f). If such work exists, the claimant is not disabled. Id. §§ 404.1520(g)(1),
416.920(g)(1).

Federal courts will review our final decisions using the rules that were in effect at the time we issued the
decisions.”).

5

DISCUSSION
In determining whether Plaintiff was disabled, the ALJ followed the sequential five-step
process. First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since
October 12, 2010, the alleged onset date of her disability. (Tr. 22.) Second, the ALJ found that
the Plaintiff had the following severe impairments: a low back disorder and an anxiety disorder.
(Id.) Third, the ALJ found that Plaintiff’s physical impairment did not meet or medically equal
the severity of the impairments in the listing. (Id. at 23.) With respect to Plaintiff’s physical
impairment, the ALJ determined that there was no evidence that her low back disorder satisfied
the listing requirements. (Id.) With respect to Plaintiff’s mental impairment, the ALJ found that
it did not meet or medically equal the criteria of listing 12.06 (Anxiety Related Disorders). (Id.);
see 20 C.F.R. § 404, Subpart P, App’x 1. Specifically, the ALJ determined that Plaintiff did not
establish the requisite functional limitations set forth in “paragraph B” of listing 12.06 because
she had: a mild restriction with respect to activities of daily living; a moderate restriction with
respect to social functioning; moderate restrictions with respect to concentration, persistence, or
pace; and no evidence of any episodes of decompensation of extended duration. (Tr. 23.)
Listing 12.06 also contains additional criteria set forth in “paragraph C,” which the ALJ found
that Plaintiff also did not satisfy. (Id.) Fourth, the ALJ determined that, in light of her
impairments, Plaintiff had the residual functional capacity to perform “light work,” as defined in
20 C.F.R. §§ 404.1567(b) and 416.967(b), except that Plaintiff could only perform work
involving simple, routine, repetitive tasks, and which required only occasional interactions with
supervisors, coworkers and the public. (Id. at 24.) Fifth, the ALJ determined that Plaintiff could
perform the following jobs: small parts assembler (Dictionary of Occupational Titles (“DOT”)

6

code 706.684-022), cleaner/housekeeper (DOT code 323.687-014), and hand bander (DOT code
920.687-026). (Tr. 27.)
I. ALJ’s Determinations as to Plaintiff’s Physical Impairments
A. The ALJ’s Determination as to the Severity of Plaintiff’s Physical Impairments Was
Supported by Substantial Evidence
The ALJ determined that Plaintiff only had one severe physical impairment, a low back
disorder. Plaintiff’s other alleged impairments, high blood pressure, obesity, adrenal adenoma,
heart disease, and knee pain, were not found to be severe. (Tr. 22.) Defendant maintains that
each of the ALJ’s findings is supported by substantial evidence. (Def.’s Mem. Supp. 14-16, ECF
No. 16.) For the reasons set forth below, the Court agrees.
1. High Blood Pressure
Plaintiff complained she was disabled, in part, by high blood pressure (hypertension).
(Tr. 221.) However, a review of doctors’ notes show that Plaintiff’s blood pressure was well
controlled by medication. (See e.g., Tr. 267 (noting “benign hypertension”), 275, 279, 295, 297
(same); 722 (noting “BP” was “controlled”).) Thus, the ALJ’s determination that Plaintiff’s
hypertension was not a severe impairment was supported by the record.
2. Obesity
Plaintiff also alleged disability due to a “weight problem.” (Tr. 221.) Doctors’ reports
indicate that Plaintiff was obese. (See, e,g., Tr. 270, 298, 309.) Although obesity is no longer
considered to be per se disabling under the Regulations, see Revised Medical Criteria for
Determination of Disability, Endocrine System and Related Criteria, 64 Fed. Reg. 46122, 46122
(Aug. 24, 1999) (explaining that “obesity” was removed from the listing of impairments), an
ALJ should nevertheless address whether a plaintiff’s obesity can be considered a severe
impairment. See SSR 02-1p, 67 Fed. Reg. 57,859, 57,861-62 (Sept. 12, 2002) (“[W]e will find
7

that obesity is a ‘severe’ impairment when, alone or in combination with another medically
determinable physical or mental impairment(s), it significantly limits an individual’s physical or
mental ability to do basic work.”).
Here, there is no evidence that the ALJ explicitly considered how Plaintiff’s obesity may
have affected her ability to engage in work-related activities. However, this is not an error of
law. By considering the physical limitations established by Plaintiff’s treating and consultative
physicians, the ALJ effectively addressed the extent to which Plaintiff’s obesity affected her
ability to perform work-related activities. See Watson v. Astrue, No. 08-cv-1523, 2010 WL
1645060, at *5 (S.D.N.Y. Apr. 22, 2010) (order adopting report and recommendation)
(“[B]ecause the ALJ adopted the physical limitations findings of [examining physicians], which
necessarily incorporated an assessment of Plaintiff’s asserted obesity, her failure to explicitly
discuss obesity was not an error of law.”) As such, the record supports the ALJ’s finding that
Plaintiff’s obesity was not a severe impairment.
3. Adrenal Adenoma (Adrenal Tumor)
Although Plaintiff did not list adrenal adenoma as a cause of her alleged disability on her
application for disability benefits, she made reference to it in the complaint filed in this action
(see Compl. at 1) and during her testimony at the hearing before the ALJ. (Tr. 44-46.)
Specifically, Plaintiff testified that she was informed by a doctor that her adrenal tumor could
“rupture and kill [her].” (Tr. 45.) She also testified that the tumor resulted in pain “on the left
side right down to [her] legs and [her] ankles.” (Id.) While no explicit finding was made by the
ALJ as to Plaintiff’s claims that her tumor was likely to be fatal, the record evidence suggests her

8

statement was unfounded.3 Notes from Plaintiff’s treating physician, Dr. Ngozi Oji, indicate that
Plaintiff was diagnosed with an adrenal gland tumor as early as 2008. (See Tr. 266 (“[a]drenal
neoplasm4 stable 2008), 298 (noting “left adrenal tumor”), 306, 309 (“adrenal gland anomaly”).)
Dr. Oji’s notes do not indicate any follow-up was required for any adrenal abnormalities, as
compared with proposed treatment plans for Plaintiff’s other diagnosed conditions. (See e.g., Tr.
267 (noting treatment plan for hypertension and GERD).) Further, a CT scan from July 2013
noted that her adrenal adenoma was “stable” and did not require any further action. (Tr. 269,
625.) Finally, according to consultative examiner Dr. Vinod Thukral in 2014, Plaintiff “denie[d]
any symptomology to due to the benign adrenal tumor.” (Id. at 797.) The ALJ’s determination
that Plaintiff’s adrenal tumor was not a severe impairment was supported by the record.
4. Heart Disease
Plaintiff testified that she had heart disease that limited her ability to travel. (See Tr. 41.)
She stated that because of her condition, she “really can’t go anywhere,” and “can’t walk far.”
(Id.) She stated that a Dr. “Manover [sic]” recommended that she limit her activities because of
her heart disease. (Id. at 42.) However, nothing in Dr. Manvar’s notes indicate any such
diagnosis. In an April 19, 2013 cardiology follow-up appointment, Dr. Manvar noted that
Plaintiff had experienced occasional anxiety and palpitations. (Id. at 616.) He reported that
Plaintiff had a history of patent, or unobstructed, coronaries, and diagnosed palpitations. (Id. at
616-17.) A July 26, 2013 cardiology follow-up appointment noted similar findings. (Id. at 62223.) Notes from a May 20, 2013 appointment with Dr. Oji noted that Plaintiff complained of
There is evidence that this information may have been relayed to Plaintiff by her husband. (See Tr. 849 (doctor’s
note that Plaintiff was told by husband she would die within months if she didn’t “do something about her adrenal
tumors,” but also indicating that condition was stable since 2008).)
4
A “neoplasm,” is an “abnormal mass of tissues that results when cells divide more than they should or do not die
when they should. Neoplasms may be benign (not cancer) or malignant (cancer). Also called a tumor.” See U.S.
Nat’l Library of Med., available at https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0024119/ (last visited Mar.
15, 2017).
3

9

“occasional chest pain” that was non-exertional. (Id. at 618.) Dr. Oji’s notes also indicated that
Plaintiff had no heart murmurs, her heart rate and rhythm were regular and she had normal S1S2
sounds. (Id. at 616, 622, 624.) Finally, a September 26, 2013 chest x-ray, ordered by Dr. Oji,
found that there was no evidence Plaintiff had acute cardiopulmonary disease. (Id. at 636.) The
ALJ’s determination that Plaintiff’s heart disease was not a severe impairment was supported by
the record.
5. Knee Pain
Plaintiff alleged that she was disabled as a result of knee pain, but it does not appear,
however, that Plaintiff sought medical treatment for her knee pain. (See Tr. 46; Compl. 1.)
Further, notes from Plaintiff’s treating physician, Dr. Oji, are devoid of any diagnosis of a
condition that would cause knee pain. (See e.g., Tr. 266-67, 274-75; but see Tr. 278 (noting
Plaintiff took Tylenol for knee pain).) Dr. Oji’s notes make reference to x-rays of Plaintiff’s
knees, the results of which were “negative.” (Id. at 278.) These results are confirmed by the
reports from Plaintiff’s September 2012 x-rays, which resulted in no significant findings. (Tr.
763.) Plaintiff also complained of knee pain to one of the consultative examiners. (Tr. 539.)
There, too, no diagnosis was made as to the cause of Plaintiff’s symptoms. (Id.) There are no
objective medical findings to support Plaintiff’s claims that her knee pain was disabling. For
these reasons, there is substantial evidence in the record that supports the ALJ’s finding that
Plaintiff’s knee pain was not a severe impairment.
6. Low Back Pain
The ALJ found that there was evidence that Plaintiff’s low back pain was a severe
impairment, and the Court agrees. Plaintiff testified that she suffered from low back pain (Tr.
38-39), and raised similar complaints with consultative examiners Drs. Kropsky and Thukral (Tr.

10

539, 797.) Both consultative examiners noted that Plaintiff would have work-related activity
limitations as a result of her back pain. (Tr. 542, 800.) There is substantial evidence that
Plaintiff’s low back pain significantly limited her ability to perform “basic work activities,” 20
C.F.R. §§ 404.1520(c), 416.920(c), and as such, was properly classified as severe.
B. The ALJ Failed to Properly Develop the Record as to Plaintiff’s Low Back Pain
The ALJ found that Plaintiff could perform light work, specifically, “jobs involving
simple, routine[,] repetitive tasks, and requiring only occasional interaction with supervisors,
coworkers[,] and the public.” (Tr. 24.) However, the ALJ did not properly develop the record to
support such a finding because he did not obtain a treating source’s opinion regarding Plaintiff’s
RFC.
An ALJ has a duty to “affirmatively develop the record in light of the essentially nonadversarial nature of a benefits proceeding.” Hilsdorf v. Comm’r of Soc. Sec., 724 F. Supp. 2d
330, 342-43 (E.D.N.Y. 2010) (quoting Burgess, 537 F.3d at 128). This duty “includes insuring
that the record as a whole is complete and detailed enough to allow the ALJ to determine the
claimant’s RFC.” Sigmen v. Colvin, No. 13-cv-0268, 2015 WL 251768, at *11 (E.D.N.Y. Jan.
20, 2015) (quoting Casino-Ortiz v. Astrue, No. 06-cv-0155, 2007 WL 2745704, at *7 (S.D.N.Y.
Sept. 21, 2007), report and recommendation adopted by 2008 WL 461375 (S.D.N.Y. Feb. 20,
2008)). A record is not necessarily incomplete simply because it lacks an RFC assessment. Id.
(citing Casino-Ortiz, 2007 WL 2745704, at *8). However, where an RFC assessment is lacking,
the ALJ must take the affirmative step of requesting one from a treating source before making a
determination as to the plaintiff’s disability. Johnson v. Astrue, 811 F. Supp. 2d 618, 629-31
(E.D.N.Y. 2011) (remanding for ALJ to obtain RFC assessment from treating source); Robins v.
Astrue, No. 10-cv-3281, 2011 WL 2446371, at *3 (E.D.N.Y. 2011) (“Although the regulation

11

provides that the lack of such a statement will not render a report incomplete, it nevertheless
promises that the Commissioner will request one.”) (citing 20 C.F.R. §§ 404.1512(d),
404.1513(b)(6)). Put differently, the ALJ has “an affirmative duty to request RFC assessments
from a plaintiff’s treating sources despite what is otherwise a complete medical history.”
Johnson, 811 F. Supp. 2d at 630.
Despite observing that Dr. Oji did not include any significant work-related limitations in
her treatment notes (Tr. 25), the ALJ failed to request a statement from Dr. Oji as to what workrelated activities Plaintiff could perform in light of her impairments. The ALJ’s failure to
request such information is reversible error. See Johnson, 811 F. Supp. 2d at 630-31 (remanding
with instruction for ALJ to request assessments from plaintiff’s treating sources).
Rather than requesting the required information, the ALJ relied heavily on the findings of
consultative examiners to determine Plaintiff’s RFC. (Tr. 25.) If, on remand, after having
requested assessments from Plaintiff’s treating physicians concerning the extent of her functional
limitations, the ALJ again gives “substantial weight” to the opinions of the consultative
examiners, the ALJ must give good reasons for not according controlling weight to the opinions
of Plaintiff’s treating physicians.
II. ALJ’s Determinations as to Plaintiff’s Mental Impairments
A. The ALJ’s Determination as to the Severity of Plaintiff’s Mental Impairments Was
Supported by Substantial Evidence
The ALJ determined that Plaintiff’s depression and other emotional issues did not
constitute a severe impairment. The ALJ relied on record evidence that demonstrated
inconsistent reporting that Plaintiff experienced mild to moderate depressive symptoms. (Tr. 2425.) For example, while Plaintiff did report experiencing some depressive symptoms (see e.g.,
Tr. 372), on several occasions, Plaintiff denied experiencing any such symptoms. (Tr. 364, 378,
12

390, 845.) Notes from Plaintiff’s psychiatrist, Dr. Yuriy Dobry, indicated that Plaintiff denied
“significant depressive symptoms,” and Dr. Dobry later reported that any such symptoms were
mild. (Id. at 414, 423.) As such, the ALJ’s determination with respect to Plaintiff’s depression
and emotional stability is supported by the record.
The ALJ found that Plaintiff’s sole severe mental impairment was an anxiety disorder.
(Tr. 22.) Treatment records from Community Counseling & Mediation (“CCM”) from
November 2012 through July 2014 indicate that Plaintiff sought treatment for anxiety and panic
disorders and mild depressive symptoms. (Id. at 423 (noting depressive symptoms were
secondary to anxiety).) CCM records indicate that, when evaluated by Dr. Dobry in January
2013, Plaintiff’s generalized anxiety and panic attacks were rated as moderate. (Id. at 424.) The
form indicates that a rating of “moderate” reflects “[s]ignificant impact on quality of life and/or
day-to-day functioning.” (Id.) Similarly, at the hearing, Plaintiff testified that her main
problems were her anxiety and panic attacks. (Id. at 36.) Thus, there was sufficient evidence in
the record that Plaintiff’s anxiety was a severe impairment.
B. The ALJ Failed to Properly Develop the Record as to Plaintiff’s Anxiety Disorder
Notwithstanding the ALJ’s correct determination as to the severity of Plaintiff’s anxiety
disorder, the ALJ did not properly assess the Plaintiff’s RFC. As discussed above, an ALJ has a
duty to request a statement as to what a claimant can do in spite of her impairments. See
Siegmund v. Colvin, 190 F. Supp. 3d 301, 309 (E.D.N.Y. 2016) (“[G]iven the lack of reports
setting forth the opinion of Plaintiff’s treating physicians as to her RFC, the ALJ was required to
make reasonable efforts to obtain such reports.”). The ALJ specifically noted that Plaintiff’s
doctors at CCM failed to “specify any limitations for claimant.” (Tr. 25.) There is no evidence,
however, that the ALJ ever requested an assessment of Plaintiff’s functional limitations from Dr.

13

Dobry, or any other doctor at CCM. Having accorded great weight to the opinions of doctors at
CCM (see Tr. 25), it is puzzling that the ALJ did not request an assessment from treating
physicians there as to what Plaintiff could do despite her mental impairment.5
The Court remands to permit the ALJ an opportunity to request a statement as to
Plaintiff’s RFC from Dr. Dobry and any other doctors who may have treated Plaintiff at CCM.
See Johnson, 811 F. Supp. 2d at 630-31 (remanding with instruction for ALJ to request
assessments from plaintiff’s treating sources); accord. Robins v. Astrue, No. 10-cv-3281, 2011
WL 2446371, at *3 (E.D.N.Y. June 15, 2011).
CONCLUSION
For the aforementioned reasons, Defendant’s motion for judgment on the pleadings is
hereby denied. Pursuant to 42 U.S.C. § 405(g), the Commissioner’s decision is remanded for
further proceedings and additional findings consistent with this Order. The Clerk of Court is
respectfully requested to enter judgment and close this case accordingly.
SO ORDERED:
/s/LDH
LASHANN DEARCY HALL
United States District Judge

Dated: Brooklyn, New York
March 31, 2017

5

Such a statement is particularly important, where, as here, the ALJ misread the treatment notes from the treating
specialists at CCM, finding that Plaintiff’s “mental status examinations were normal for the 2013 to 2014 treatment
period.” (Tr. 25.) Rather, notes from Dr. Dobry reported that Plaintiff had symptoms of general and social anxiety,
and suffered from panic attacks. (See e.g., Tr. 411-415.) A statement from Dr. Dobry could provide clarification as
to the severity of Plaintiff’s symptoms and her limitations in a work-like setting.

14