Fontanez v. Colvin

Filing 27

ORDER granting 16 Motion for Judgment on the Pleadings; denying 22 Motion for Judgment on the Pleadings: For the reasons in the attached Memorandum and Order, the Commissioner's motion for judgment on the pleadings is denied and Plaintiff& #039;s cross-motion for judgment on the pleadings is granted. Pursuant to the fourth sentence of 42 U.S.C. § 405(g), the Commissioner's decision is vacated, and this matter is remanded for further administrative proceedings consistent with this Order. The Court also finds that remand to a new ALJ is appropriate in this case. While the decision to assign a case to a new ALJ on remand is generally left to the discretion of the Commissioner, the Court directs the Commissioner to assign a new ALJ in light of the Padro case. See Arvanitakis v. Comm'r of Soc. Sec., No. 12-CV-1232 (CBA), 2015 WL 2240790, at *14 (E.D.N.Y. May 12, 2015). The Clerk of Court is respectfully requested to enter judgment accordingly. Ordered by Judge Pamela K. Chen on 9/28/2017. (Lee, Helen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
BARBARA FONTANEZ,
Plaintiff,
- against -

MEMORANDUM & ORDER
16-CV-01300 (PKC)

CAROLYN W. COLVIN ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Plaintiff Barbara Fontanez (“Plaintiff”) brings this action under 42 U.S.C. §§ 405(g) and
1383(c)(3), seeking judicial review of the final determination of the Commissioner of Social
Security (the “Commissioner” or “SSA”) that Plaintiff is not entitled to Supplemental Security
Income (“SSI”) disability benefits under Title XVI of the Social Security Act. The parties have
cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).
(Dkts. 16, 22.) Plaintiff seeks reversal of the Commissioner’s decision and remand for further
administrative proceedings. The Commissioner, in turn, seeks to have the Court affirm the
Commissioner’s disability determination.
For the reasons set forth below, the Court GRANTS Plaintiff’s motion for judgment on the
pleadings and DENIES the Commissioner’s motion. The case is remanded for further proceedings
consistent with this opinion.

BACKGROUND
I.

Procedural History
On May 8, 2013, Plaintiff applied for SSI alleging disability due to depression, back injury,

allergies, and asthma. (Tr. 220–25, 234.) 1 On January 9, 2015, the ALJ, Marilyn Hoppenfeld,
held a hearing at which testimony was heard from Plaintiff, a non-examining State agency medical
expert, and a vocational expert. (Tr. 31.) The ALJ issued a written decision on September 17,
2015, concluding that Plaintiff was not disabled and therefore not entitled to SSI benefits. (Tr. 5–
30.) On January 11, 2016, the ALJ’s decision became the Commissioner’s final decision when
the Appeals Council of the Office of Disability Adjudication and Review denied Plaintiff’s request
for review in accordance with the terms of the class action settlement agreement in Padro v. Astrue,
No. 11-CV-1788 (CBA), 2013 WL 5719076 (E.D.N.Y. Oct. 1, 2013). 2 (Tr. 1–3.) Plaintiff timely
commenced this action on March 16, 2016, and cross-motions for judgment on the pleading were
fully briefed on April 21, 2017. (See Docket No. 16-CV-1300.)
II.

Non-Medical History and Plaintiff’s Self-Reports
A.

Plaintiff’s Personal and Employment History

Plaintiff was born on September 10, 1970, and was forty-one on the onset date of her
alleged disability, September 8, 2011. (Tr. 24, 220, 230.) She completed up to tenth grade in high
school (Tr. 52), and she had worked temporarily, in 2000, as a census-taker for the United States
Census Bureau, where she would walk for three and a half hours, stand for thirty minutes, climb

1

“Tr.” refers to the Administrative Transcript, Dkt. 11.

2

While Plaintiff’s Memorandum of Law (Dkt. 16-1) refers to the case as Padro v. Colvin,
No. 11-CV-1788 (CBA) (E.D.N.Y. Oct. 1, 2013), the Court refers to the case as Padro v. Astrue,
No. 11-CV-1788 (CBA), 2013 WL 5719076 (E.D.N.Y. Oct. 1, 2013), the class action in which the
class members complained of systematic bias by ALJs in the Queens, New York office of the
Social Security Administration.
2

for thirty minutes, write, type or handle small objects for four hours, and reach for four hours, in a
day. (Tr. 235–36.) In 2007, for about six months, she worked part-time as a mail clerk. (Tr. 54–
55.) Plaintiff has four children and lives with three of them. (Tr. 43.) One of her sons, now
fourteen years old, is disabled and suffers from cerebral palsy, seizure, and developmental delay.
(Tr. 44.)
B.

Plaintiff’s Self-Reporting in Her Social Security Application
1.

July 19, 2013 Disability Report

In her July 19, 2013 disability report, Plaintiff stated that she was unable to work due to
depression, back injury, allergies, and asthma. (Tr. 234.) She reported that she was taking the
following medications: Zoloft for depression, ibuprofen and Tylenol for pain, methocarbamol for
back and hip pain, albuterol for asthma, calcium, and iron for anemia, and Prevacid for acid reflux.
(Tr. 237.) Plaintiff reported she had been in the emergency room once in 2010 and once in July
2013. (Tr. 237.)
2.

August 2, 2013 Function Report

In a function report dated August 2, 2013, Plaintiff reported that she was able to dress,
bathe, feed herself, and use the toilet without any assistance. (Tr. 243–44.) She did not need any
special help or reminders to take care of her personal needs and grooming, but required help
remembering to take her medication. (Tr. 244.) She could do chores such as cleaning, laundry,
and household repairs, but needed help from family members. (Tr. 245.) Due to back pain, she
had difficulty sleeping, could no longer take care of her son with special needs, and could not stand
long enough to prepare her own meals. (Tr. 243–44.) Plaintiff did not go out alone because she
experienced dizziness and was afraid she would pass out. (Tr. 245.) She was generally able to
manage household finances. (Tr. 246.) She reported that her pain, anxiety, and depression made
it difficult to spend time and get along with others. (Tr. 247.) She had trouble finishing what she
3

started and remembering things. (Tr. 249–50.) Plaintiff described her pain, presumably in her
lower back, 3 as stabbing and aching, and explained that waking up, walking, standing, and sitting
for extended amounts of time triggered the pain. (Tr. 250–51.) Her pain had worsened over time,
and the pain could be described as “needlelike,” “shooting,” and “chronic.” (Tr. 251.) Plaintiff
reported to taking a number of medications, including Acetaminophen, ibuprofen, Robaxin, and
Tramadol, which helped only temporarily. (Tr. 251.) Plaintiff reported experiencing headaches
about four to five times a month, which caused nausea, sensitivity to light and sound, and
sometimes blurred vision. (Tr. 253.) She reported that she received treatment for headaches once
at Jamaica Hospital Medical Center (“JHMC”).

(Tr. 252.) She had been diagnosed with

depression and anxiety, and such conditions were triggered in crowded areas as well as by stress.
(Tr. 253–54.) She described her depression and anxiety to cause shaky hands, palpitation,
nervousness, confusion, disorientation, and crying. (Tr. 254.) 4
C.

Other Reports
1.

August 30, 2013 FedCap Biopsychosocial Evaluation Summary

On August 30, 2013, Plaintiff was examined by Dr. Jesus Navarro, an internal medicine
specialist, at FedCap Rehabilitation Services (“FedCap”), a New York City Human Resources
Administration public assistance program that provides advocacy for claimants seeking federal
disability benefits. 5 (Tr. 464–500.) Plaintiff reported that she had difficulty walking, standing,
climbing stairs, and sometimes grooming, bathing, and dressing due to back pain. (Tr. 472.)

3

Plaintiff did not specify which parts of her body were affected by the pain.

4

Plaintiff listed similar complaints in a later disability report dated October 2013. (Tr.

266–72.)
5

For an overview of FedCap, see http://www.fedcap.org/content/wecare (last visited July
11, 2017).
4

Plaintiff also reported that she had had anxiety since the 1990’s and depression since 2011. (Tr.
482.) Plaintiff was observed to be groomed and responsive during the interview. (Tr. 475.)
In the evaluation summary, Dr. Navarro noted Plaintiff’s back, leg, joint, and muscle pain,
stiffness, swelling, and limitation of movement. (Tr. 486.) He noted that Plaintiff did not
experience neck pain. (Tr. 484.) Dr. Navarro also conducted a physical examination, where he
assessed abnormal musculoskeletal functions in range of motion, strength, and tone. (Tr. 490.)
He noted that Plaintiff experienced continuous, moderate levels of pain in her lumbar spine, left
hip, and left knee. (Id.) As a result, Dr. Navarro concluded that Plaintiff had physical limitations
in standing, walking, pushing, pulling, sitting, reaching, kneeling, squatting, and bending. (Tr.
491.) He also concluded that Plaintiff had emotional and cognitive limitations due to depression,
respiratory limitations due to asthma, and other general limitations in her capacity to maintain
energy level, sustain attendance, and achieve adequate work pace and productivity due to her
medical conditions and use of a cane. (Tr. 492–93.) Dr. Navarro diagnosed Plaintiff with sprains
and strains of hip, thigh, knee, leg, and parts of the back, asthma, migraine, and episodic mood
disorders. (Tr. 496–98.) He concluded that Plaintiff was “unable to work.” (Tr. 498.)
2.

September 12, 2013 Function Report

Plaintiff’s FedCap case manager and non-attorney representative, Cooper Goodman,
completed a third-party function report. (Tr. 273–81.) According to the report, Plaintiff’s day
consisted mainly of resting and supervising other people who took care of her son with special
needs because Plaintiff’s medical conditions significantly limited her physical capacity. (Tr. 273.)
She was no longer able to dress and bathe herself, nor was she able to use public bathrooms because
the toilets were too low. (Tr. 274.) Similarly, Plaintiff could not perform household chores. (Tr.
275–76.) Her physical limitations—inability to walk, stand, prepare food, and perform any form
of exertion—perpetuated her mental health problems. (Tr. 274.) Her physical limitations also led
5

her to withdraw from her hobbies and social life. (Tr. 277–78.) Plaintiff reported having difficulty
lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, concentrating,
remembering, completing tasks, understanding, following instructions, and getting along with
others. (Tr. 278.) Goodman concluded that Plaintiff had no physical or mental residual functional
capacity (“RFC”) to perform either relevant past work (i.e. poll taker) or other work given her
background. (Tr. 281.)
III.

Medical Evidence Prior to the Filing Date
On October 20, 2011, Plaintiff saw Nurse Practitioner Rosanne Martone for migraine

headaches at Richmond Hill Family Medicine (“RHFM”) of JHMC. (Tr. 335–36.) Plaintiff
reported that her pain was moderate, intermittent, and that it had been gradually worsening. (Tr.
335.) Symptoms included dizziness, phonophobia, 6 and photophobia, 7 but Plaintiff experienced
no nausea, vision change or vomiting. (Id.) Martone noted Plaintiff’s significant medical history
of migraine headaches. (Id.) At her January 18, 2012 follow-up visit at JHMC with Dr.
Thambiraja Nandakumar, a neurologist, Plaintiff reported having headaches twice a week, with
associated visual disturbances, nausea, and vomiting. (Tr. 338.) Dr. Nandakumar diagnosed
Plaintiff with migraine and prescribed Imitrex. 8 (Tr. 340.) However, within five weeks of being
prescribed the medication—even though the medication had been effective—Plaintiff stopped
taking it because she was trying to get pregnant. (Tr. 340–42.)

6

Phonophobia refers to abnormal sensitivity to noise, a common feature of migraine
headaches. Phonophobia, STEDMAN’S MEDICAL DICTIONARY 683710.
7

Photophobia refers to light-induced pain, especially of the eyes. Photalgia, STEDMAN’S
MEDICAL DICTIONARY 685690.
8

Dr. Nandakumar is a neurologist at JHMC. Jamaica Hospital Medical Center,
https://jamaicahospital.org/find-a-doctor (last visited July 11, 2017).
6

Plaintiff returned to RHFM on February 23, 2012, for an annual examination with Dr.
David Dovnarsky, Plaintiff’s primary care physician. (Tr. 1143.) Dr. Dovnarsky diagnosed her
with low back pain, chronic asthma, chronic migraine, chronic depression, GERD
(gastroesophageal reflux disease), urinary frequency, and neck swelling. (Id.) He advised Plaintiff
to take Tylenol and get physical therapy for her low back pain. (Tr. 1147.) It was noted that
Plaintiff was getting psychiatric care, but was not taking medication for her depression. (Id.) Dr.
Dovnarsky ordered a CT scan for her neck and test panels for the depression. (Tr. 1148.)
In addition to regular treatments with Dr. Dovnarsky, Plaintiff received osteopathic
manipulation treatment (“OMT”) and physical therapy at RHFM from Drs. Jacqueline Marston, a
resident physician (Tr. 1169, 1175), Philip Cruz, D.O., an attending sports medicine specialist (Tr.
1216), and Stephanie Ortiz, D.O., a resident physician (Tr. 1723). On February 28, 2012, Plaintiff
began OMT for her back pain with Dr. Marston. (Tr. 346.) Plaintiff complained of sharp low
back pain on her right side that was aggravated by lying on her back or standing. (Tr. 344.) Dr.
Marston noted Plaintiff’s mild positive straight leg raise on the right side of her lower back, which
improved after the treatment, and diagnosed Plaintiff with psoas syndrome, piriformis syndrome,
low back pain, and muscle spasm. 9 (Tr. 345–46.) When Plaintiff returned for a follow-up on
March 15, 2012, she exhibited decreased range of motion, tenderness, and spasm in her back. (Tr.
349.) On April 5, 2012, Dr. Marston observed that Plaintiff had not experienced any improvement
since the last visit and that Plaintiff had difficulty moving around. (Tr. 1221, 1223.) Plaintiff
reported that, although she experienced some improvement immediately after the treatment, the

9

Piriformis syndrome “is a rare neuromuscular disorder that occurs when the piriformis
muscle compresses and irritates the sciatic nerve—the largest nerve in the body.”
https://www.ninds.nih.gov/Disorders/All-Disorders/Piriformis-Syndrome-Information-Page (last
visited September 12, 2017).
7

pain returned “right back.” (Tr. 1221.) Her pain score was reported as 10/10. (Tr. 1217.) Drs.
Marston and Cruz instructed Plaintiff to stop taking Naproxen and prescribed Cyclobenzaprine
and Meloxicam for her back pain. (Tr. 1223.) For the rest of 2012, Plaintiff visited RHFM once
or twice a month, generally to treat her back pain, muscle spasm, and to receive OMT. (Tr. 356–
382, 1245–463.) Dr. Dovnarsky noted on July 30, 2012, that Plaintiff’s migraine condition was
“stable.” (Tr. 376.)
In a letter dated April 5, 2012, Dr. Marston opined that Plaintiff was suffering from acute
chronic back pain from caring for her son and that, “if [her] current conditions continue[d]”—
presumably referring to the fact that her apartment was on the second floor, and thus Plaintiff had
to carry her son up and down the stairs—Plaintiff’s condition would deteriorate to the point where
she could not care for herself. (Tr. 443.) Dr. Dovnarsky also wrote a letter, in connection with
Plaintiff’s request for public assistance, dated June 4, 2012, opining that Plaintiff was unable to
work due to chronic back and neck pain, as well as her need to take care of her son with special
needs. (Tr. 372, 441.) Dr. Dovnarsky’s diagnosis remained mostly the same for the rest of the
year, except for the additional assessment of chest pain and slurred speech on June 29, 2012, and
of palpitations on October 1, 2012. (Tr. 1354, 1442–45.)
Plaintiff returned to RHFM for asthma and bronchitis on January 9, 2013, and again for an
examination and OMT for back pain on January 15, 2013. (Tr. 1469, 1490.) On January 15, 2013,
Plaintiff exhibited limited range of motion due to lower back pain and also had tenderness in her
lumbar spine S1-L5-L4 segments. (Tr. 1496.) On January 17, 2013, Dr. Ortiz diagnosed Plaintiff
with sacral dysfunction and noted that Plaintiff had gone to about ten physical therapy sessions in
late 2012, but that the relief was temporary. (Tr. 1518, 1522.) On March 25, 2013, Plaintiff
presented with back pain complaining of 10/10 intensity, and reported that she had landed on her

8

knee when she slipped while lifting her son. (Tr. 1548.) Plaintiff’s March 30, 2013 X-ray showed
a normal lumbar spine without significant abnormality. (Tr. 429.) An MRI dated April 12, 2013,
showed mild degenerative changes at L4-5 and L5-S1. (Tr. 430.) 10 On April 1, 2013, when
Plaintiff saw Dr. Dovnarsky for an annual exam, the doctor noted that Plaintiff had the following
conditions: depression, asthma, migraine, low back pain, and anemia. (Tr. 395–96, 1601–30.)
Plaintiff also reported having sleep disturbance and decreased concentration, and was prescribed
Zoloft for her depression. (Tr. 395, 1606.) Plaintiff’s migraine condition was noted to be “stable”
(Tr. 396, 1607), and “[n]o [ ] tenderness [points in Plaintiff’s] back” were found based on a
musculoskeletal physical examination. (Tr. 395, 1606.) The next day, however, Dr. Cruz observed
decreased range of motion and pain in Plaintiff’s back, and administered trigger point injection.
(Tr. 397, 1637.)
IV.

Medical Evidence After the Filing Date
For the period after filing for SSI, Plaintiff continued to see Dr. Dovnarsky, her primary

care physician at RHFM. For her physical ailments, as previously noted, Plaintiff continued to
receive OMT from Drs. Marston (Tr. 1169, 1175), Cruz, D.O. (Tr. 1216), and Ortiz, D.O. (Tr.
1723). She also received nine physical therapy treatments from October 14, 2013 through March
27, 2014. (Tr. 711–97, 865–92, 908–46, 972–1007.) In addition, Plaintiff was treated by two
physiatrists, Dr. Svetlana Gavrilova, M.D. and Dr. Vadim Goldshteyn, M.D. at JHMC. (Tr. 716,
799.)

10

The MRI report noted a “very small central disk protrusion . . . with mild facet
degenerative changes resulting in mild bilateral neural foramina narrowing” at L4-5, and “a mild
bulge with mild facet degenerative changes resulting in mild bilateral neural foramina narrowing,”
at L5-S1. (Tr. 430.)
9

A.

Physical Medical History
1.

Primary Care at RHFM: David Dovnarsky, M.D.

Dr. Dovnarsky evaluated Plaintiff’s depression, low back pain, anemia, gastroesophageal
reflux disease “GERD,” and asthma on May 13, 2013. (Tr. 406.) Plaintiff reported that Zoloft
was helping her depression, and appeared to be in good spirits on examination—although she
admitted to having three to four crying spells a week. (Tr. 404–05.) She also reported that her
lower back pain had improved with Tramadol, but that the pain was still constant. (Tr. 404.) She
exhibited tenderness along the knee joint, although she had full range of motion “without signs of
ligamentous 11 or bony compromise.” (Tr. 405.) On June 9, 2013, Plaintiff went to the emergency
room after she injured her hip. (Tr. 438.) In a letter dated June 10, 2013, Dr. Dovnarsky stated
that Plaintiff was unable to work due to back and neck pain, and the need to take care of her son.
(Tr. 326.) Plaintiff followed up with Dr. Dovnarsky on June 11 and June 17, for hip and back
pain. (Tr. 1759, 1788.) Plaintiff reported numbness in her anterior thigh and tenderness in her
anterior hip, but an X-ray taken on June 9 showed no subluxation 12 or fracture in her left hip and
pelvis. (Tr. 1759.) On July 15, 2013, five days after a dog bit Plaintiff’s knee, she saw Dr.
Dovnarsky. (Tr. 1849.) She exhibited decreased range of motion, swelling, and tenderness in her
left knee, and Dr. Dovnarsky sent her to the emergency room for further evaluation. (Tr. 414–15.)
On July 29, 2013, Plaintiff showed improvement in her hip and knee injuries, and noted that she
had started receiving assistance from a home aide for her son since the dog bite. (Tr. 1884.)

11

Ligamentous is defined as “relating to or of the form or structure of a ligament.”
Ligamentous, STEDMAN’S MEDICAL DICTIONARY 498570.
12

Subluxation, also called slippage, is when the bones of a joint shift, but do not become
totally dislocated. This can be a chronic problem. Understanding Dislocation – the Basics,
WEBMD, http://www.webmd.com/a-to-z-guides/understanding-dislocation-basics (last visited
July 25, 2017).
10

On December 2, 2013, Plaintiff saw Dr. Dovnarsky for an annual examination and reported
her pain score to be zero. (Tr. 1996–97.) Dr. Dovnarsky directed Plaintiff to stop taking Zoloft
and prescribed Cymbalta for depression. However, after about a month, he switched her back to
Zoloft after about one month due to nervousness and teeth grinding. (Tr. 2003, 2066.) He also
referred Plaintiff to psychiatric counseling. (Tr. 2003.) Plaintiff returned to Dr. Dovnarksy on
February 24, 2014 complaining of headache, eye pain, neck and back pain, and generalized body
aches. (Tr. 2088, 2093.) Her mood was “stable,” and Plaintiff reported having seen a pain
management doctor but also noted that she did not want injections. (Tr. 2094.) Dr. Dovnarsky
found no tenderness points in her back or legs—but noted that the pain seemed to be more
diffuse—and prescribed Tramadol for her back and hip pain, as well as iliotibial band syndrome
(“IT band syndrome”). 13 (Id.) On March 4, 2014, Dr. Dovnarsky treated Plaintiff with albuterol
for shortness of breath and wheezing resulting from an exacerbation of her chronic asthma
condition. (Tr. 2123–24.) In a medical report dated December 23, 2014, Dr. Dovnarsky restated
his diagnosis of chronic low back pain, depression, asthma, and migraine headache. (Tr. 502–04.)
2.

OMT at RHFM with Philip Cruz, D.O. and Stephanie Ortiz, D.O.

Dr. Cruz, a sports medicine specialist, examined Plaintiff for back pain on May 21, 2013.
(Tr. 1723.) He noted that although the first trigger point injection had failed—the relief only lasted
about three days—Plaintiff was still a likely candidate for trigger point injections. (Tr. 1729–30.)
On August 20, 2013, Plaintiff saw Dr. Cruz for hip and low back pain of 8/10 intensity, and was
diagnosed with IT band syndrome. (Tr. 1909, 1913–14.) Examination of Plaintiff’s left hip

13

The iliotibial band is a tendon on the outside of a leg, which connects the pelvic bone to
just below the knee. This syndrome occurs when the iliotibial band becomes swollen and irritated
from rubbing against the knee bone. Iliotibial Band Syndrome – Aftercare, MEDLINEPLUS,
https://medlineplus.gov/ency/patientinstructions/000683.htm (last visited July 11, 2017).
11

revealed no acute fracture or subluxation, and an X-ray of the left knee showed soft tissue injury
but no osseous or articular abnormality. 14 (Tr. 1914–15.) On the same day, Dr. Cruz opined in a
letter that Plaintiff was unable to return to work until further notice due to hip and back pain. (Tr.
417.) Plaintiff also underwent OMT with Dr. Ortiz, for low back pain on October 30, 2013, and
November 20, 2013, and for neck and back pain on December 12, 2013, each time presenting with
pain of 8/10 intensity. (Tr. 1938, 1969, 2035.) In her October 30 notes, Dr. Ortiz noted that
Plaintiff exhibited tightness in her left Sacroiliac Joint, left psoas, left IT band, and had diffuse
tender points. (Tr. 1944.) Plaintiff also had left knee crepitus 15 and tenderness upon palpation.
(Id.) Dr. Cruz’s December 12, 2013 notes indicate that Plaintiff’s neck pain had worsened possibly
due to having slept in the wrong position. (Tr. 2039.) On April 8, 2014, Dr. Cruz found decreased
range of motion, tenderness and spasm in Plaintiff’s back and administered steroid injection. (Tr.
2152, 2156.)
3.

Visits at JHMC: Svetlana Gavrilova, M.D. and Vadim Goldshteyn, M.D.

On September 12, 2013, Dr. Svetlana Gavrilova, a physician specializing in physical
medicine and rehabilitation, prescribed eight weeks of physical therapy based on the diagnosis of
left hip pain, back pain, psoas syndrome, muscle spasm of back, and low back pain. (Tr. 716.)
Shortly thereafter, Plaintiff received physical therapy at JHMC four times in October and

14

Osseous abnormality refers to abnormality relating to bone, while articular abnormality
refers to abnormality relating to a joint. Osseus, MERRIAM-WEBSTER, https://www.merriamwebster.com/dictionary/osseous (last visited July 25, 2017); Articular, MERRIAM-WEBSTER,
https://www.merriam-webster.com/dictionary/osseous (last visited July 25, 2017).
15

Crepitus is synonymous with crepitation, which refers to “noise or vibration produced
by rubbing bone or irregular degenerated cartilage surfaces together as in arthritis and other
conditions.” Crepitation, STEDMAN’S MEDICAL DICTIONARY 211900.
12

November of 2013. 16 (Tr. 711–97.) Her pain decreased from 8/10 to 5/10 intensity after physical
therapy on one occasion, and from 6/10 to 2/10 on another. (Tr. 741, 780.)
Dr. Vadim Goldshteyn, a physician specializing in physical medicine and rehabilitation,
saw Plaintiff for moderate low back pain on November 11, 2013. (Tr. 798–800.) Dr. Goldshteyn
diagnosed Plaintiff as having, inter alia, degenerative joint disease of the lumbar spine and low
back pain. (Tr. 800.) Plaintiff reported “moderate” pain that had been ongoing, but also that her
physical therapy yielded “good result[s].” (Id.) She did not report having neck pain that day. (Tr.
802.)

Dr. Goldshteyn prescribed physical therapy, pain management consultation, and a

Transcutaneous Electrical Nerve Stimulation (“TENS”) unit. 17 (Id.) On February 10, 2014, he
saw Plaintiff again for moderate to severe low back pain and noted Plaintiff’s failure to complete
the last course of physical therapy. (Tr. 846.) Upon the referral of Dr. Goldshteyn, Plaintiff
resumed physical therapy for her low back pain secondary to degenerative disc disease and
degenerative joint disease, and was seen five times in February and March 2014. 18 (Tr. 865–92,
908–46, 972–89, 990–1007.) Over the course of the treatment, Plaintiff presented with generally
decreasing levels of pain, and reported that therapy provided some immediate relief. (Id.)
4.

Emergency Care at JHMC

Plaintiff went to the emergency room at JHMC on two other occasions. She was admitted
for bronchitis on November 18, 2014. (Tr. 505, 632.) Dr. Ojas Desal, an internal medicine
physician, observed coughing, chest tightness, shortness of breath, wheezing, and chest pain. (Tr.

16

These visits occurred on October 14, October 24, October 30, and November 8, 2013.

17

A Transcutaneous Electrical Nerve Stimulation (TENS) unit helps prevent pain signals
from reaching the brain by sending stimulating pulses across the skin and along the nerve strands.
THE ORIGINAL TENS UNITS, https://www.tensunits.com/ (last visited July 11, 2017).
18

These visits occurred on February 12, March 3, March 5, March 24, and March 27, 2014.
13

631.) A chest X-ray showed no acute pathology. (Tr. 638.) Plaintiff was treated with albuterol
and discharged the next day. (Tr. 631–32.) On January 8, 2015, Plaintiff returned after hitting her
head from a slip and fall, and reported left knee pain, muscular pain on the left side of her neck,
and dizziness. (Tr. 511, 670.) She was diagnosed with contusion on her left knee and laceration.
(Tr. 673.) An examination by Dr. David Mallin, an internal medicine physician, found tenderness
on the head and neck, and decreased range of motion and bony tenderness in the left knee. (Tr.
672.) Dr. Mallin ordered a head CT and left knee X-ray, both of which showed no significant
abnormalities. (Tr. 684–85.)
B.

Psychological Medical History

With respect to Plaintiff’s emotional and psychological health, she was mainly treated by
Sumini Thomas, a licensed clinical social worker (“LCSW”), Roxana Korb, LCSW, Teresita Ruiz,
M.D., a psychiatrist, and Pravina Nair, Psy.D., a clinical psychologist.
1.

Sumini Thomas, LCSW

On January 25, 2014, Plaintiff saw social worker Sumini Thomas, at JHMC, for anxiety,
worsening depression, and difficulty sleeping. (Tr. 827–28.) Thomas diagnosed Plaintiff with
major depression, noting that Plaintiff was depressed due to her responsibilities taking care of her
disabled child, but that she was motivated to get better. (Tr. 832.) Psychiatric evaluation and
medication management were recommended. (Id.)
2.

Teresita Ruiz, M.D.

On February 25, 2014, Dr. Teresita Ruiz, a psychiatrist, admitted Plaintiff to the psychiatric
clinic at RHMC based on a diagnosis of bipolar and depressive disorders. (Tr. 525–26, 539.) Upon
examination, Dr. Ruiz assessed recurrent major depressive disorder. (Tr. 901.) Based on a mental
status examination, Dr. Ruiz noted that Plaintiff exhibited a cooperative and anxious attitude,
depressed mood, and that Plaintiff’s orientation, memory, concentration, general knowledge,
14

insight, and judgment were “intact.” (Tr. 900.) Plaintiff later agreed to a treatment plan of weekly
individual psychotherapy and monthly medication management.

(Tr. 539.)

At their first

medication management session on March 11, 2014, Dr. Ruiz found Plaintiff to be anxious,
dysthymic, 19 restless and fidgety—although her cognition was grossly intact, and Plaintiff
exhibited good insight and judgment. (Tr. 952.) Dr. Ruiz noted that Plaintiff had been taking
Zoloft, which helped, but also that her asthma medications might have exacerbated anxiety and
mood symptoms. (Tr. 953.) Although Plaintiff denied manic or psychotic symptoms, Dr. Ruiz
diagnosed her with recurrent and severe major depressive disorder, specified with psychotic
behavior. (Tr. 953, 955.) At her next visit on May 1, 2014, Plaintiff presented with anxious and
dysthymic mood. (Tr. 1057.) She had stopped Zoloft without tapering off. (Tr. 1058.) Dr. Ruiz
advised her to taper off before starting Cymbalta, which was given to manage her bodily pain.
(Id.) Plaintiff missed her appointments with Dr. Ruiz on May 20, 2014 and January 8, 2015. (Tr.
559, 621.)
3.

Roxana Korb, LCSW

Shortly after Plaintiff was admitted to the psychiatric clinic, social worker Roxana Korb,
at JHMC, conducted a thirty-day admission review. (Tr. 549.) Korb concluded that admission
was appropriate given Plaintiff’s age and diagnosis of recurrent major depressive disorder. (Tr.
550.) She also opined that Plaintiff had difficulty in “Occupational Functioning” and “Daily
Activities/Social Skills.” (Id.)

19

Dysthymic disorder refers to a “chronic disturbance of mood characterized by mild
depression or loss of interest in usual activities.” Dysthymic Disorder, STEDMAN’S MEDICAL
DICTIONARY 259940.
15

4.

Pravina Nair, Psy.D.

Pursuant to Dr. Ruiz’s treatment plan, Plaintiff started psychotherapy with
Dr. Pravina Nair, a psychologist, on March 26, 2014. (Tr. 965.) Plaintiff presented with euthymic
mood 20 and the session focused on building rapport and understanding the nature of her problems.
(Tr. 966.) She returned four times in April 2014 and twice in May 2014. 21 (Tr. 1008–51, 1066–
89.)

On each occasion, Dr. Nair observed euthymic mood, and Plaintiff reported feeling

increasingly overwhelmed by family stressors. (Id.) For example, on April 16, 2014, Plaintiff
reported that she wanted to be more productive and reported having been feeling tearful for the
past couple days due to unaccomplished responsibilities. (Tr. 1024.) On June 25, 2014, in a
treatment plan review, Drs. Ruiz and Nair concluded that although Plaintiff’s’ overall mood and
energy had improved, Plaintiff continued to feel overwhelmed and depressed when faced with
psychosocial stressors, and that Plaintiff required continued treatment for major depression
disorder. (Tr. 569–70.) Drs. Ruiz and Nair reached similar conclusions in the next two treatment
plan reviews, dated September 25, 2014 and December 24, 2014, opining that Plaintiff was making
progress, but that continued treatment was necessary. (Tr. 580, 609.) On December 4, 2014,
Plaintiff missed her appointment, but she reported that she was doing well and could return the
next week. (Tr. 599.)

20

Euthymia,

21

These visits occurred on April 8, April 16, April 21, April 28, May 7, and May 19, 2014.

Euthymia refers to “moderation of mood, not manic or depressed.”
STEDMAN’S MEDICAL DICTIONARY 307600.

16

C.

Consultative Examiners
1.

Brian Wosnitzer, M.D.

Dr. Brian Wosnitzer, a nuclear medicine specialist, conducted an internal medical
consultative physical examination of Plaintiff on September 13, 2013. (Tr. 454–60.) Plaintiff’s
chief complaints were lower back pain, asthma, migraine headaches, depression, GERD, psoas
syndrome, anemia, and left hip pain. (Tr. 455.) She reported to getting approximately five
headaches per month and that they caused nausea and vomiting. (Tr. 455, 459.) Dr. Wosnitzer
observed that Plaintiff’s gait was normal but slow, and that she had no problem getting on and off
the exam table. (Tr. 457.) Plaintiff declined to walk on her heels and toes or squat due to back
pain. (Id.) Dr. Wosnitzer noted that Plaintiff’s cervical spine showed full flexion, extension,
bilateral lateral flexion, and full bilateral rotary movement. (Tr. 458.) She had limited flexion, in
her lumbar spine, due to lower back pain; otherwise, she had full extension, lateral flexion, and
rotary movements. (Id.) Plaintiff reported lower back pain at 50 degrees with supine bilateral
straight leg raise test. (Id.) She also had full range of motion of hips, knees, and ankles bilaterally,
and her joints were stable, non-tender, and did not exhibit redness, heat, or swelling. (Id.)
Dr. Wosnitzer also conducted a mental status screen. (Tr. 458–59.) He noted that Plaintiff
was dressed appropriately, maintained good eye contact, and appeared oriented in all spheres; there
was no evidence of impaired judgment or significant memory impairment. (Id.) Plaintiff’s affect
was normal, according to Dr. Wosnitzer. (Tr. 459.) After performing a pulmonary function test,
he found that Plaintiff had low vital capacity, possibly due to restriction of lung volume. 22 (Tr.

22

Plaintiff’s FEV1 was 71% of predicted value. (Tr. 462.) “FEV1” is a regular part of
pulmonary function tests. It stands for forced expiratory volume in 1 second. The value is usually
considered abnormal if it is less than 80% of the patient’s predicted value. Therefore, in this case,
Plaintiff’s value of 71% would usually be considered abnormal. Pulmonary Function Tests,
MEDLINEPLUS, https://medlineplus.gov/ency/article/003853.htm (last visited July 5, 2017).
Forced vital capacity is the amount of air a patient exhales during a FEV test. Forced Expiratory
17

461–62.) Dr. Wosnitzer opined that Plaintiff should avoid dust, allergens and heavy exertional
activities. (Tr. 459.) He also opined that Plaintiff was moderately limited in prolonged walking,
climbing, bending, and heavy lifting due to low back and left hip pain. (Id.) He found, Plaintiff
to be only mildly limited in daily activities due to migraine headaches.
2.

Michael Kushner, Ph.D.

On the same day of her consultative examination with Dr. Wosnitzer, Plaintiff also received
a consultative psychiatric evaluation by Dr. Michael Kushner, a psychologist. (Tr. 448–53.) Dr.
Kushner diagnosed depressive disorder and anxiety disorder. (Tr. 452.) He observed that Plaintiff
had a responsive and cooperative demeanor, and that her manner of relating, social skills, and
overall presentation were “adequate.” (Tr. 450.) At the evaluation, Plaintiff walked with a cane,
was “mostly well groomed,” and maintained appropriate eye contact. (Id.) Plaintiff had a
somewhat agitated affect and exhibited neutral mood. (Id.) Dr. Kushner found Plaintiff to have
impaired attention and concentration, somewhat impaired recent and remote memory skills, and
an average level of intellectual functioning. (Tr. 451.)
In his medical source statement, Dr. Kushner opined that Plaintiff was not limited in her
capacity to follow and understand simple instructions, to perform simple tasks independently, and
to make appropriate decisions. (Id.) However, she was moderately limited in maintaining
attention and concentration, and she had mild to moderate limitations in maintaining a regular
schedule, learning new tasks, and performing complex tasks under supervision. (Id.) Moreover,
Plaintiff was moderately limited in her ability to relate with others and cope with stress. (Tr. 451–
52.) Dr. Kushner concluded that these limitations were caused by and consistent with Plaintiff’s

Volume and Forced Vital Capacity, WEBMD, http://www.webmd.com /lung/tc/forced-expiratoryvolume-and-forced-vital-capacity-topic-overview (last visited August 1, 2017).
18

psychiatric problems, but that they were not significant enough to interfere with Plaintiff’s ability
to function on a daily basis. (Tr. 452.)
3.

P. Kennedy-Walsh, M.D. and A. Nwafor, SDM

On September 25, 2013, Plaintiff was evaluated by Dr. P. Kennedy-Walsh, a consultative
psychiatrist, and also by A. Nwafor, a State agency disability analyst. 23 (Tr. 142–53.) Dr.
Kennedy-Walsh assessed Plaintiff’s mental limitations, and Nwafor assessed Plaintiff’s physical
capacity. (See id.) Based on the reports of Drs. Kushner and Wosnitzer and also based on portions
of Plaintiff’s medical records from JHMC, which did not include any opinion evidence, Dr.
Kennedy-Walsh and Nwafor concluded that Plaintiff was restricted to sedentary work, but was not
disabled. 24 (Tr. 144–45, 147–48, 152.) Dr. Kennedy-Walsh found that Plaintiff had severe
medically determinable impairments, namely impairments in the categories of osteoarthrosis and
allied disorders and affective disorders. (Tr. 142–46.) While Plaintiff’s spine and affective
disorders were severe, they did not meet or equal any Listings. (Tr. 146.) Dr. Kennedy-Walsh
made the following mental residual functional capacity assessment: Plaintiff had limitations as to
her capacity to understand and remember. (Tr. 149–50.) Specifically, Plaintiff had moderate
limitations in her ability to remember locations and work-like procedures and to understand and
remember detailed instructions. (Id.) Plaintiff also had moderate limitations in her ability to carry
out very short and simple instructions; follow detailed instructions; maintain attention and
concentration for extended periods; perform activities within a schedule, maintain regular

23

The Court notes that P. Kennedy-Walsh is a psychiatrist, based on the specialty code of
37 notated next to her name. See https://secure.ssa.gov/poms.nsf/lnx/0424501004.
24

This determination was made based on the following evidence: two consultative expert
reports, two reports from JHMC received on July 19, 2013 and August 7, 2013, and a report
identified as “ADL’s.” (Tr. 144–45.) Five additional requests for evidence, including one to Dr.
Dovnarsky, were made; however, it is unclear if the evidence was ever received.
19

attendance, and be punctual within customary tolerances; sustain an ordinary routine without
special supervision; work in coordination with or in proximity to others without being distracted
by them; complete a normal workday and workweek without interruptions from psychologically
based symptoms; and to perform at a consistent pace without an unreasonable number and length
of rest periods. (Tr. 150.) Moreover, Plaintiff was moderately limited in her ability to interact
appropriately with the general public and to accept instructions and respond appropriately to
criticism from supervisors. (Id.)
The State agency disability analyst, Nwafor, SDM, found that Plaintiff had the physical
RFC to occasionally lift ten pounds, stand or walk for two hours, and sit for six hours in an eighthour day. (Tr. 148.) He also opined that Plaintiff was to avoid all exposures to environmental
irritants, but had no limitations as to pushing and pulling. (Tr. 148–49.) Plaintiff’s claims
regarding symptoms were found to be only “partially credible” because she did not fully explain
her symptoms, and the treatments did not corroborate her complaints. (Tr. 147.)
V.

The Hearing
At the hearing, ALJ Hoppenfeld heard testimony from Plaintiff, who was represented by a

non-attorney representative Nina Radiu from the New York City Human Resources
Administration’s Disability Services Program, and also from Dr. Chukwuemeka Efobi, a board
certified psychiatrist and the psychological expert, and Andrew Pasternak, M.A., a vocational
expert. (Tr. 31–32, 197–200.)
A.

Plaintiff’s Testimony

At the hearing, Plaintiff testified as follows: Plaintiff, a single mother, lives with three of
her children, one of whom is disabled and has cerebral palsy, developmental delay, and a seizure
disorder. (Tr. 43–44, 46.) She had completed school up to the tenth grade of high school. (Tr.

20

52.) In 2000, she worked as a part-time census worker; in 2007, for about six months, she had a
part-time position sorting mail. (Tr. 54–55.)
Plaintiff had gone to a hospital on five occasions: on June 10, 2013, for a dog bite on her
left knee and subsequent infection (Tr. 62–64); another time in 2014 for chest pain (Tr. 61–62); in
May 2014 for hip pain (Tr. 83); on November of 2014, for coughing and wheezing (Tr. 59–61);
and on January 8, 2015, the day before the hearing, for a fall with injury to her head and left knee
(Tr. 56–58). Plaintiff stated that it was hard to go anywhere because if she sat in a certain way she
would “stay stuck,” and if she stood up, her back would hurt. (Tr. 75.)
She first sought psychiatric care in 2010 but she stopped going to her sessions because she
was uncomfortable with her therapists being switched many times by the medical center. (Tr. 67–
70.) In 2014, she started seeing Dr. Pravina Nair, 25 her psychologist, because she became
depressed due to her back pain and inability to take care of her son the way she used to before
being injured by the dog bite. (Tr. 70–71.) Thereafter, she saw Dr. Nair every week. (Tr. 76.)
She was also seeing Dr. Teresita Ruiz, her psychiatrist, once a month. (Tr. 76.) Plaintiff testified
to having difficulty falling asleep and concentrating, and poor memory. (Tr. 73–75, 78.)
Plaintiff’s mother, older son, and daughter shopped and cleaned the house, and the family
mostly ordered take-out meals. (Tr. 80–82.) She had no friends, although she had gone to church
for the first time the previous Sunday. (Tr. 77.) She had developed a tendency to become
“uncomfortable fast,” and avoided speaking to people on the phone—even her mother. (Tr. 79.)
She spent most of her time in her room. (Id.) A home aide came to help take care of Plaintiff’s
son, but Plaintiff was not allowed to leave the child alone with the home aide. (Tr. 79–80.)
25

Plaintiff’s testimony was slightly inaccurate with respect to Dr. Nair’s first name and
when she started seeing her. While Plaintiff testified to starting her treatment with Dr. Nair in
2013, the record indicates that she commenced treatment with Dr. Nair in 2014. (See supra p. 16.)
21

Plaintiff could walk one block without coughing and experiencing back pain. (Tr. 82.) She
required a cane to prevent her from falling. (Id.) She generally avoided going outside alone
because of the possibility of falling. (Tr. 83.) She could stand for ten to fifteen minutes (id.), but
could not kneel due to her left knee pain (Tr. 87). Plaintiff helped her disabled son dress before
school, picked up after him “whatever [she could] little by little,” and tried to keep track of her
appointments with the help of alarms on her phone. (Tr. 91.)
She would get headaches at least three to four times a month, which on two occasions
caused her to throw up. (Tr. 93.) She had found Excedrin to be helpful for the headaches. (Id.)
Her anemia, which made her cold and weak, was treated with vitamin B12 complex. (Tr. 94–95.)
Her back pain and stiff neck were at the intensity level of 10/10 at the hearing. (Tr. 96–97.)
Plaintiff had a TENS unit, which she normally wore at all times, but she did not bring it to the
hearing because she was unsure as to whether it would be allowed in the courthouse. (Tr. 84–85.)
Throughout the hearing, Plaintiff had to stand and stretch due to physical pain. (Tr. 65, 98, 119.)
B.

Testimony of State Agency Psychiatrist Expert, Chukwuemeka Efobi, M.D.

Dr. Chukwuemeka Efobi, a board certified psychiatrist, testified as an expert, solely based
medical records from RHFM from October 20, 2011 to July 29, 2013 (Exhibit 2F) and reports by
consultative physicians Dr. Kushner and Dr. Wosnitzer (Exhibit 5F). None of these records were
from Plaintiff’s treating psychiatrist or psychologist. (Tr. 99.) Dr. Efobi observed that Plaintiff
was evaluated to have normal mood and affect according to eight visit records. (Tr. 101–03.)
Disagreeing with Dr. Kushner, the consultative psychologist who diagnosed Plaintiff with
depressive disorder and anxiety disorder, Dr. Efobi opined that Plaintiff had an adjustment disorder
with mixed emotion. (Tr. 104.) Dr. Efobi concluded that Plaintiff’s mental impairment was not
severe. (Id.) He noted that Plaintiff exhibited no decompensations. (Tr. 105.) With respect to
Plaintiff’s mental capacities, Dr. Efobi opined that Plaintiff had moderate limitation only as to the
22

social aspect, which was caused by self-isolation. (Tr. 105–06.) He opined that the limitations
associated with other aspects, such as concentration and activities of daily living were mild. (Tr.
104, 106–07.) On cross-examination, Plaintiff’s representative asked Dr. Efobi whether he had
considered Dr. Kushner’s September 13, 2013 opinion of moderate, as opposed to mild, limitation
in concentration in Exhibit 5F before concluding that Plaintiff had minimal limitation as to
concentration. (Tr. 108–09.) Based on the transcript, it is not entirely clear what Dr. Efobi’s
response was. While Dr. Efobi responded that he “did note” and “saw” Dr. Kushner’s opinion,
the rest of the testimony was not recorded as it was inaudible. (Tr. 109.) When the representative
attempted to ask, what appears to be, a follow-up question, the ALJ interjected by saying, “Okay.
That’s argumentative, he [Dr. Efobi] considered it, but he didn’t feel it was supported at the time.”
(Id.) Then, the ALJ stated that Dr. Efobi’s opinion had much greater weight than Dr. Kushner’s
opinion because Dr. Efobi is a Board Certified psychiatrist, while Dr. Kushner is a psychologist.
(Tr. 109–10.) The ALJ also asked Dr. Efobi about Plaintiff’s ability to follow more than one or
two directions, to which Dr. Efobi began to answer, “[Plaintiff] should be able to . . . ,” but was
unable to give a complete answer because the ALJ interjected and answered her own question by
saying, “Yes? Okay. All right.” (Tr. 107.)
The ALJ also noted that Dr. Efobi’s testimony “is going to be subject [to revision], because
[they had] to get [additional] records from [Plaintiff’s] current treating psychiatrist,” which was
not part of the record at the time of the hearing. (Tr. 107.) However, Dr. Efobi’s opinion did not
change even after he had the opportunity to review the additional medical records Plaintiff
submitted after the hearing, which included the records of Plaintiff’s treating psychiatrist and
psychologist. (Tr. 22.)

23

C.

Testimony of Vocational Expert, Andrew Pasternak

Vocational expert (“VE”) Andrew Pasternak testified at Plaintiff’s hearing. Classifying
Plaintiff’s previous work as a survey worker and mail clerk, the VE noted that the jobs were light
and unskilled with a specific vocational preparation (“SVP”) of 2. 26 (Tr. 116–17.) The ALJ first
asked the VE to assume an individual of Plaintiff’s age, forty-four, and her education, who could
perform a full range of light work. (Tr. 117.) The VE testified that such an individual could
perform both of Plaintiff’s previous jobs. Next, the ALJ asked the VE to consider a second
hypothetical person with the same limitations, but with the added limitation that the person could
perform only sedentary work. (Tr. 117–18.) The VE testified that such a person would not be
able to perform Plaintiff’s previous jobs. (Tr. 118.) The ALJ then asked the VE to consider a third
hypothetical person with the same limitations as the second hypothetical, but who also required
limited to minimal contact with co-workers. (Id.) The VE responded that such a person would be
capable of working as a lense inserter, document preparer, and film inspector. (Tr. 118–19.) Then,
the ALJ asked the VE, for the fourth hypothetical, to assume the same limitations as the third
hypothetical, but to add the limitation that the job had to be simple, routine, repetitive, and lowstress with minimal decision-making involved. (Tr. 119–20.) The VE testified that Plaintiff could
perform the previously identified jobs. (Tr. 120.) Finally, the VE testified that if the exertional
level was light, rather than sedentary, then such an individual could perform the jobs of assembler
of hospital products, garment sorter, and inspector. (Tr. 120–22.) Taking into consideration
Plaintiff’s asthma, the VE noted that all of the jobs he mentioned would be free of respiratory

26

Specific Vocational Preparation “is defined as the amount of lapsed time required by a
typical worker to learn the techniques, acquire the information, and develop the facility needed for
average performance in a specific job-worker situation.” O’Dell v. Colvin, No. 16-CV-368 (AJP),
2016 WL 6882861, at *10 n.17 (S.D.N.Y. Nov. 22, 2016) (quoting U.S. Dep't of Labor, Dictionary
of Occupational Titles Appendix C (4th ed. 1991)).
24

irritants. (Tr. 121–28.) The VE also testified that a person with moderate limitations with respect
to prolonged walking, climbing, and bending, and heavy lifting due to back and hip pain could still
perform all of the jobs identified. (Tr. 129–30.) Furthermore, the VE testified that Plaintiff could
“absolutely” perform all of the jobs he had mentioned even assuming that Plaintiff had the mental
limitations determined by Dr. Kushner, i.e., moderate limitations in terms of maintaining attention
and concentration, maintaining a regular schedule, learning new tasks, and performing complex
tasks under supervision. (Tr. 130–31.) However, Plaintiff would not be able to hold any of these
jobs if she had to be absent once a week, or four times a month. (Tr. 132.)
D.

Supplementation of the Record

The ALJ held the record open, admitted additional evidence relating to Plaintiff’s medical
care, provided that evidence to Dr. Efobi, the medical expert, and gave Plaintiff an opportunity to
request a supplemental hearing and cross-examine Dr. Efobi again. (Tr. 59, 323–24, 1092.)
According to the record, Plaintiff did not seek a supplemental hearing.
VI.

The ALJ’s Decision
On September 17, 2015, the ALJ issued a decision denying Plaintiff’s application based on

the five-step analysis required by 20 C.F.R. § 416.920(a). (Tr. 10–26.) At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since May 8, 2013. (Tr. 12.) At step
two, the ALJ found that Plaintiff suffered from the following impairments that, in combination,
are severe: degenerative disease of the lumbar spine, asthma/allergies, and adjustment disorder.
(Id.) However, the ALJ found that Plaintiff’s conditions of anemia, migraine, left hip pain, and
left knee pain were not severe. (Tr. 12–13.) At step three, the ALJ found that none of the above
impairments, on their own or in combination, met or medically equaled any of the Listings. (Tr.
13–14.)

25

The ALJ found that Plaintiff has the RFC to perform light work, 27 but is limited to simple,
routine, and minimal decision-making jobs, known as low-stress work, and jobs involving minimal
interaction with coworkers given her adjustment disorder. The ALJ also found that Plaintiff should
be limited to work areas free of respiratory irritants given her asthma. (Tr. 14.) Overall, the ALJ
found that Plaintiff’s medically determinable impairments could not reasonably be expected to
cause the alleged symptoms and that Plaintiff’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not supported by the medical record. (Tr. 22.) In
determining Plaintiff’s RFC, the ALJ held that Plaintiff’s complaint about her physical
impairments, including back pain, left knee and left hip pain, and migraines, was not supported by
objective evidence. (Tr. 19–20.) As for mental impairments, the ALJ found that the result of
Plaintiff’s mental impairments was merely that she was limited to simple, routine, and minimal
decision-making jobs that involve minimal interaction with coworkers.

In reaching this

conclusion, the ALJ gave significant weight to Dr. Efobi’s testimony, in which he opined that the
records indicate Plaintiff’s consistent improvement over the course of 2014 and Plaintiff’s good
spirits. (Tr. 21–22.) The ALJ did not give controlling weight and gave only “some” weight to the
opinion of Dr. Kushner, Plaintiff’s consultative psychologist, noting that it was “not known what,
if any, medical evidence was offered to him for his perusal and it appear[ed] some of his findings
were based upon [Plaintiff’s] subjective complaints.” (Tr. 22, 24.) With the exception of Dr.
Wosnitzer’s assessment of limitation due to asthma, the ALJ gave limited weight to the opinions
of: (1) Plaintiff’s treating physician, Dr. Cruz, who opined that Plaintiff was unable to work due
to hip and back pain; (2) the consultative physician, Dr. Wosnitzer, who opined that Plaintiff had

27

Specifically, she found that Plaintiff was capable of standing, sitting, and/or walking for
six hours in an eight hour day and occasionally lifting twenty pounds. (Tr. 14.)
26

moderate limitation in prolonged walking, climbing, bending, and heavy lifting, and mild
limitation in daily activities from migraines five times a month; and (3) Dr. Navarro, who opined
that Plaintiff was limited in multiple exertional, postural, cognitive, and environmental areas. (Tr.
23–24.) There was no mention of how much weight, if any, was given to the medical opinions of
Plaintiff’s treating sources, Dr. Ruiz and Nair, or the consultative psychiatrist, Dr. KennedyWalsh. Additionally, in rejecting Plaintiff’s claims as to her symptoms, the ALJ noted Plaintiff’s
poor work history prior to her medical conditions, and her reported activities, such as dancing and
initiating a lawsuit. (Tr. 22.)
Having determined that Plaintiff retained the RFC to perform light work as defined in 20
C.F.R. 416.967(b), but was limited to low-stress work involving minimal interaction with
coworkers and free of respiratory irritants (Tr. 14), the ALJ concluded, at step four, that Plaintiff
was unable to meet the exertional demands of her past relevant work as a survey worker and a mail
clerk. (Tr. 24.) At step five, relying on the VE’s testimony, the ALJ concluded that there was a
significant number of existing jobs in the national economy that Plaintiff could perform, such as
an assembly worker (lense inserter), document preparer, assembler of hospital products, garment
sorter, or inspector. (Tr. 24–25.)
DISCUSSION
I.

Standard of Review
A.

Judicial 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); accord 42
U.S.C. § 1383(c)(3). In reviewing a final decision of the Commissioner, the Court’s duty “is
27

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) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)). “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 on substantial

evidence, the Court must ascertain that the agency considered all evidence in reaching its findings.
20 C.F.R. § 404.1520(3). Moreover, the Court “is required to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be drawn.” Selian,
708 F.3d at 417 (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).

In any case, if there is substantial evidence in the record to support the

Commissioner’s findings as to any fact, they are conclusive and must be upheld. 42 U.S.C. §
405(g); see also Cichocki v. Astrue, 729 F.3d 172, 175–76 (2d Cir. 2013).
In addition to its authority to affirm, modify, or reverse a final decision, the Court may
remand the case for the ALJ to further develop the record, resolve conflicts and ambiguities, or
elucidate his or her rationale. 42 U.S.C. § 405(g); see also Grace v. Astrue, No. 11-CV-9162
(ALC), 2013 WL 4010271, at *14 (S.D.N.Y. July 1, 2013) (adopting report and recommendation);
Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975) (suggesting that courts tend to remand
when relevant evidence “was not explicitly weighed and considered by [the agency], although such
consideration was necessary to a just determination of a claimant’s application” (internal citations
omitted)).

28

B.

Eligibility Standard for Social Security Disability Benefits

Claimants must be disabled within the meaning of the Act to receive benefits. Disability
is established by 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).
Such disability must result “from anatomical, physiological, or psychological abnormalities which
are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). The claimant must prove that the impairment is “of such
severity that [the claimant] is not only unable to do [his or her] previous work but cannot,
considering [his or her] age, education, and work experience, engage in any other substantial
gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Under the Act’s regulations, the ALJ must follow a five-step process to determine if a
claimant is disabled. The inquiry ends if at any step the ALJ determines that the claimant is either
disabled or not disabled. The claimant bears the burden of proof in the first four steps in the
inquiry; the Commissioner bears the burden in the final step. Talavera, 697 F.3d at 151. First, if
the ALJ finds that the claimant is currently engaged in “substantial gainful activity,” the claimant
is not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
If the claimant is not so engaged, at step two, the ALJ determines whether the claimant
suffers from a medical impairment, or a combination of impairments, that is “severe” in that it
“significantly limits [the claimant’s] physical or mental ability to do basic work activities.” 20
C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c). Such activities include physical functions such as
walking and sitting, capacities of seeing and hearing, mental abilities such as understanding
instructions, as well as social interactions in the work setting. See 20 C.F.R. § 416.922(b). To
prove severity of the impairment, the claimant must present evidence from “acceptable medical
29

sources that reflect judgments about the nature and severity of your impairment(s) . . .” 20 C.F.R.
§ 416.927(a)(1); see also 20 C.F.R. § 416.913(a). The ALJ Commission is required to “consider
the combined effect of all of [the claimant’s] impairments,” Burgin v. Astrue, 348 F. App’x. 646,
647 (2d Cir. 2009) (internal quotations omitted), but not the claimant’s age, education, and work
experience. 20 C.F.R. §§ 416.920(a)(4), 416.920(c). If the impairment is not severe, the claimant
is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(c).
If the impairment is severe and meets the Act’s twelve-month duration requirement, the
ALJ proceeds to step three, which considers whether the impairment meets or equals an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also 20 C.F.R. pt. 404, Subpart P, App. 1. If the ALJ
finds a listed impairment or an equivalent, the claimant is per se disabled. 20 C.F.R. §§
404.1520(d), 416.920(d).
If the claimant does not have a listed impairment, the ALJ then determines the claimant’s
“residual functional capacity” (“RFC”), which is “the most [a claimant] can still do despite [his or
her medical] limitations.” 20 C.F.R. § 404.1545(a)(1). The ALJ must consider all medically
determinable impairments, “and any related symptoms . . . [which] may cause physical and mental
limitations that affect what [the claimant] can do in a work setting”—“severe” or not—in finding
the RFC. Id. Then, in step four, the ALJ is to use the RFC determination to determine if the
claimant has the RFC to perform “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(iv),
404.1520(e). If the claimant has the RFC sufficient to perform past work, he or she is not disabled.
20 C.F.R. §§ 404.1520(f), 404.1560(b). Otherwise, the ALJ proceeds to step five, where the
burden shifts to the ALJ to demonstrate that the claimant has the capacity to perform other
substantial gainful work available in the national economy, given the claimant’s RFC, age,

30

education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled
and entitled to benefits. (Id.)
II.

Analysis
Plaintiff contends that the ALJ erred by: (1) failing to consider all of Plaintiff’s severe

impairments at step two of her analysis; (2) incorrectly concluding that Plaintiff’s left knee and
hip pain were unsubstantiated by objective findings; (3) failing to addressing Plaintiff’s neck pain;
(4) concluding that Plaintiff had adjustment disorder, rather than major depressive disorder; and
(5) failing to evaluate Plaintiff’s complaints of chronic pain. Plaintiff also contends that the ALJ’s
RFC determination was not supported by substantial evidence and that the ALJ failed to adequately
develop the record. Each of these arguments is addressed, in turn, below.
A.

Severity Determination

At Step Two, the ALJ must determine whether the claimant has an impairment, or a
combination of impairments, that is severe, i.e., imposes more than de minimis limitations on the
ability to perform any basic work activities, and meets the durational requirement. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii); 20 C.F.R. §§ 404.1521, 416.921. The Second Circuit has
held that this step is limited to screening out de minimis claims. Parker-Grose v. Astrue, 462 F.
App’x 16, 17 (2d Cir. 2012) (summary order) (citing Dixon v. Shalala, 54 F.3d 1019, 1030 (2d
Cir. 1995)). However, the “‘mere presence of a disease or impairment, or establishing that a person
has been diagnosed or treated for a disease or impairment’ is not, by itself, sufficient to render a
condition ‘severe.’” Calixte v. Colvin, No. 14-CV-5654 (MKB), 2016 WL 1306533, at *22
(E.D.N.Y. Mar. 31, 2016) (quoting Coleman v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995)).
“Where an ALJ excludes certain impairments from the list of severe impairments at the
second step, any such error is harmless where the ALJ identifies other severe impairments such
that the analysis proceeds and the ALJ considers the effects of the omitted impairments during
31

subsequent steps.” Id. at *23 (collecting cases and finding harmless error where the ALJ did not
mention PTSD at the second step, instead finding Plaintiff’s major depressive disorder, inter alia,
to be severe and considering PTSD diagnosis in subsequent steps); see also O’Connell v. Colvin,
558 F. App’x 63, 65 (2d Cir. 2014) (holding that any error due to ALJ’s exclusion of claimant’s
knee injury as a severe impairment was harmless because ALJ identified other severe impairments
and considered the knee injury in subsequent steps). Nevertheless, where an ALJ’s exclusion of
an impairment from the list of severe impairments is not supported by substantial evidence, and
the ALJ fails to account for functional limitations associated with the excluded impairment in
determining the claimant’s RFC, remand for further administrative proceeding is appropriate. See
Parker-Grose, 462 F. App’x at 17 (“[The claimant’s] case must be remanded for further
administrative proceedings, because the ALJ’s finding that [the claimant’s] ‘medically
determinable mental impairment of depression is nonsevere,’ is not supported by substantial
evidence and the Commissioner failed to account for any functional limitations associated with
[the claimant’s] depression when determining her residual functional capacity . . . .”).
Here, the ALJ found that although Plaintiff’s various physical and mental impairments,
considered individually, were not severe, there was a severe combination of degenerative disease
of the lumbar spine, asthma/allergies, and adjustment disorder. (Tr. 12.) At the same time, the
ALJ determined that Plaintiff’s anemia, migraines, left hip pain, and left knee pain, either
individually or in combination with other impairments, were not severe. (Id.) Plaintiff contends
that the ALJ failed to consider the full medical record and committed error in concluding that
Plaintiff’s neck, left knee, and hip pain, and major depressive disorder were not severe. (Dkt. 16–
1 at 25–26.) The Commissioner asserts that, because the ALJ identified other severe impairments

32

at step two and proceeded with the sequential evaluation, any error in the ALJ’s analysis in the
second step was harmless.
For the reasons discussed below, the Court finds that the ALJ’s conclusion at step two that
Plaintiff’s left hip and left knee pain did not meet the requisite de minimis level of severity, even
if erroneous, was harmless. However, the ALJ’s failure to address Plaintiff’s neck pain at step two
was not harmless error, and warrants remand. In addition, although the ALJ addressed Plaintiff’s
non-exertional, mental impairments in determining her RFC, the ALJ’s finding that Plaintiff had
adjustment disorder—rather than major depressive disorder—is also ground for remand because,
as discussed below, the mental RFC determination was not supported by substantial evidence.
1.

Plaintiff’s Neck Pain

In response to Plaintiff’s contention that the ALJ failed to address Plaintiff’s neck pain, the
Commissioner argues that the ALJ did not commit an error at step two because Plaintiff only
alleged depression, back injuries, asthma, and allergies on her SSI application. (Dkt. 23 at 29.)
However, in cases where courts found it significant that a claimant had failed to allege certain
impairments in his or her application for disability benefits, there was ample evidence in the record
indicating that the claimant did not suffer from the impairment that the claimant failed to mention
in the application. See Santos v. Astrue, 12-CV-2075 (JGK), 2013 WL 5462337, at *5 (S.D.N.Y.
Sept. 30, 2013) (collecting cases). Furthermore, the ALJ is required to consider impairments a
claimant alleges or those “about which [the ALJ] receive[s] evidence.” 20 C.F.R § 404.1512(a)(1).
Therefore, Plaintiff’s failure to allege neck pain on her application does not necessarily relieve the
ALJ from her duty to take the entire record into consideration. See Santos, 2013 WL 5462337, at
*5; Rockwood v. Astrue, 614 F. Supp. 2d 252, 275 (N.D.N.Y. 2009) (adopting report and
recommendation that rejected Commissioner’s argument that the ALJ’s failure to give significant
consideration to claimant’s obesity was reasonable because claimant did not allege difficulty due
33

to obesity, where the claimant submitted medical evidence indicating that claimant was diagnosed
with obesity).
The ALJ did not acknowledge or discuss Plaintiff’s neck pain anywhere in her decision.
However, the record includes Dr. Dovnarsky’s notes regarding Plaintiff’s neck swelling in
February 2012. (Tr. 1148.) Moreover, in two separate letters dated June 4, 2012, and June 10,
2013, Dr. Dovnarksy opined that Plaintiff was unable to work due to, inter alia, chronic neck pain.
(Tr. 441, 418.) Lachhman, the SSA interviewer, noted, in July 2013, that Plaintiff did not move
her head or neck much. (Tr. 231.) Dr. Ortiz also diagnosed Plaintiff to have neck pain secondary
to muscle spasms in December 2013. (Tr. 2040.) Such medical records suggest that neck pain
was an ongoing condition that potentially limited Plaintiff’s ability to function or work, and the
ALJ plainly erred by failing to address the condition at step two or any subsequent steps. See
Booker v. Astrue, No. 07-CV-646 (GLS), 2011 WL 3735808, at *5 (N.D.N.Y. Aug. 24, 2011)
(holding that remand is appropriate because meaningful review was defeated by a lack of specific
finding with respect to one of the claims at step two or any later steps); Parker-Grose, 462 F.
App’x at 18 (finding ALJ’s step-two error, i.e., concluding that claimant’s mental impairment was
mild, was not harmless, where ALJ failed to take these restrictions into account when determining
claimant’s RFC). Because the ALJ did not address Plaintiff’s neck pain in any subsequent step,
the ALJ’s failure to address the medical record pertaining to Plaintiff’s neck pain at step two was
not harmless.
2.

Left Knee and Hip Pain

In concluding that Plaintiff’s left knee and hip pain did not meet the de minimis requirement
for severity at step two, the ALJ provided only a conclusory explanation that “the medical evidence
in [the] record [ ] did not establish [that the left knee and hip pain] caused more than minimal
limitation in the claimant’s ability to perform basic work activities.” (Tr. 12.) For example, in
34

discussing step two of the analysis, the opinion does not mention Dr. Dovnarsky’s May 13, 2013
notes, which indicated that Plaintiff had tenderness along the knee joint (Tr. 405), the doctor’s
June 11, 2013 notes, which indicated that Plaintiff had numbness in her thigh and hip (Tr. 1759),
or his July 15, 2013 notes, which indicated that Plaintiff had decreased range of motion, swelling,
and tenderness in her legs after the dog bite (Tr. 414–15). Nor did the ALJ acknowledge the 2013
letter of Plaintiff’s sports medicine specialist, Dr. Cruz, stating that Plaintiff was unable to work
due to hip and back pain. (Tr. 417.) Furthermore, the medical record indicates that Plaintiff had
right hip swelling on August 20, 2013 (Tr. 1914), and Dr. Cruz noted Plaintiff’s left knee crepitus
and tenderness upon palpation (Tr. 1944).
However, in determining Plaintiff’s RFC, the ALJ did consider this information regarding
Plaintiff’s knee and hip pain. The ALJ noted Plaintiff’s August 2013 X-ray of the knee, the
September 2013 internal medicine consultative examination, and October 2013 visit notes
indicating that Plaintiff had left knee crepitus but was otherwise normal. (Tr. 19.) In addressing
Plaintiff’s RFC, the ALJ thoroughly discussed the medical record pertaining to Plaintiff’s left knee
and hip pain, and explained that she had minimal limitation in range of motion in the knee and
there was no significant objective findings and only conservative treatment for her left hip pain.
(See Tr. 19–20, 23.) Therefore, even assuming that the ALJ erred at step two by concluding that
Plaintiff’s left knee and hip pain were not severe, such error was harmless. See Calixte, 2016 WL
1306533, at *23.
3.

Major Depressive Disorder

The evaluation of mental impairments follows a “special technique” pursuant to 20 C.F.R.
§ 404.1520a. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (“Th[e] regulations require
application of a ‘special technique’ at the second and third steps of the five-step framework [ ] and
at each level of administrative review.” (internal citations omitted)). This technique requires “the
35

reviewing authority to determine first whether [a] claimant has a medically determinable mental
impairment, [and if] there is such impairment, the reviewing authority must rate the degree of
functional limitation resulting from the impairment(s) in accordance with paragraph C of the
regulations, which specifies four broad functional areas: (1) activities of daily living; (2) social
functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation.”
Hernandez v. Astrue, 814 F. Supp. 2d 168, 180–81 (E.D.N.Y. 2011) (internal quotation marks and
citations omitted); see 20 C.F.R. §§ 404.1520a(b), (c); 20 C.F.R. §§ 416.920a(b), (c). 28
Plaintiff asserts that the ALJ committed reversible error by failing to consider Plaintiff’s
diagnosis of major depressive disorder as a severe impairment and by concluding instead that
Plaintiff had adjustment disorder, based on the non-examining medical expert’s diagnosis of
Plaintiff, thus violating the treating physician rule. (Dkt. 16-1 at 25.) The Court agrees, and finds
that the ALJ’s conclusion that Plaintiff had adjustment disorder was not supported by substantial
evidence and was also an incorrect application of the treating physician rule.

28

“[I]f the degree of limitation in each of the first three areas is rated ‘mild’ or better, and
no episodes of decompensation are identified . . . [,] the reviewing authority generally . . . will
conclude that the claimant’s mental impairment is not severe and will deny benefits.” Kohler, 546
F.3d at 266. “The ALJ must ‘rate’ the functional degree of limitation in each of these four areas
as ‘[n]one, mild, moderate, marked [or] extreme.’” Marthens v. Colvin, No. 15-CV-535 (CFH),
2016 WL 5369478, at *3 (N.D.N.Y. Sept. 22, 2016) (citing 20 C.F.R. §§ 404.1520a(c)(4); 20
C.F.R. §§ 416.920a(c)(4)). If the ALJ determines that the claimant’s mental impairment or
combination of impairments is severe, the ALJ “will first compare the relevant medical findings
[along with] the functional limitation rating to the criteria of listed mental disorders in order to
determine whether the impairment meets or is equivalent in severity to any listed mental disorder.
If so, the claimant will be found disabled.” Kohler, 546 F.3d at 266 (citing 20 C.F.R. §
404.1520a(d)(1); 20 C.F.R. § 404.1520a(d)(2)). If not, the reviewing authority will then assess
the claimant’s RFC. Id. (citing 20 C.F.R. § 404.1520a(d)(3)). The application of this technique
shall be documented in the decision “at the initial and reconsideration levels of administrative
review.” Id. (citing 20 C.F.R. § 404.1520a(e)(1)).

36

“Regardless of its source,” Social Security regulations (“SSR”) require that “every medical
opinion” in the administrative record be evaluated when determining whether a claimant is
disabled under the Act. 20 C.F.R. §§ 416.927(c), 404.1527(c). Acceptable medical sources that
can provide evidence to establish an impairment include, inter alia, Plaintiff’s licensed treating
physicians and psychologists, as well as other medical professionals, and social welfare agency
personnel and licensed specialists. See 20 C.F.R. §§ 416.902, 416.913(a), 404.1513(a).
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). The
opinion from a treating physician will be given “controlling” weight if it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the] record.” 20 C.F.R. § 416.927(c)(2); see also Burgess v. Astrue,
537 F.3d 117, 127–28 (2d Cir. 2008) (referring to this as the “treating physician rule”). “Treating
source” is defined as the “claimant’s ‘own physician, psychologist, or other acceptable medical
source who provides a claimant with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with the claimant.’” Bailey v. Astrue, 815 F. Supp. 2d 590, 597
(E.D.N.Y. 2011) (quoting Brickhouse v. Astrue, 331 F. App’x 875, 877 (2d Cir. 2009)). 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).
“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 did not afford “controlling weight” to opinions from treating

37

physicians, the ALJ’s decision should be guided by the following factors: “(1) the length,
frequency, nature, and extent of the treating relationship; (2) the supportability of the treating
source opinion; (3) the consistency of the opinion with the rest of the record; (4) the specialization
of the treating physician; and (5) any other relevant factors.” Scott v. Astrue, No. 09-CV-3999
(KAM)(RLM), 2010 WL 2736879, at *9 (E.D.N.Y. July 9, 2010); Halloran, 362 F.3d at 32; see
also 20 C.F.R. § 416.927(c)(2)–(6). 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 (MKB), 2014 WL 4793452, at *15 (E.D.N.Y. Sept. 24, 2014). “The [ALJ]
must [ ] give ‘good reasons’ for the weight given to the treating source’s opinion.” Petrie v. Astrue,
412 F. App’x 401, 407 (2d Cir. 2011). “The failure to provide ‘good reasons’ for not crediting a
treating source’s opinion is ground for remand.” See Burgin, 348 F. App’x at 648 (quoting
Halloran, 362 F.3d at 33).
It bears emphasis that “not all expert opinions rise to the level of evidence that is
sufficiently substantial to undermine the opinion of the treating physician.” Correale–Englehart
v. Astrue, 687 F. Supp. 2d 396, 427 (S.D.N.Y. 2010) (citing Burgess, 537 F.3d at 128) (adopting
report and recommendation); see also Anderson v. Astrue, 07-CV-4969 (DLI), 2009 WL 2824584,
at *9 (E.D.N.Y. Aug. 28, 2009) (noting that the opinion of a consultative physician, “who only
examined plaintiff once, should not be accorded the same weight as the opinion of plaintiff’s
treating [physician]” (citing Spielberg v. Barnhart, 367 F. Supp. 2d 276, 282–83 (E.D.N.Y. 2005)).
In addition, opinions of consulting physicians—whether examining or non-examining—are
entitled to relatively little weight where there is strong evidence of disability on the record, or in
cases in which the consultant did not have a complete record. Correale–Englehart, 687 F. Supp.
2d at 427.

38

Here, remand is warranted because the ALJ violated the treating physician rule by failing
to consider the diagnoses by Dr. Ruiz and Dr. Nair, Plaintiff’s treating psychiatrist and treating
psychologist, respectively. Specifically, the ALJ inappropriately concluded—relying on the
opinion of the State agency medical expert, Dr. Efobi—that Plaintiff had adjustment disorder,
rather than major depressive disorder, as diagnosed by Drs. Ruiz and Nair. (Tr. 12–14.)
According to the record, Dr. Ruiz treated Plaintiff for major depressive disorder between
February and May 2014. (Tr. 893–901, 947–55, 1052– 60.) Dr. Ruiz met with Plaintiff for a total
of three appointments and conducted a mental status exam, diagnosed Plaintiff with major
depressive disorder (recurrent), recommended a treatment plan, performed medication
management reviews of Plaintiff’s psychotropic medications, and recommended weekly
psychotherapy. (Tr. 900, 901, 1058.) In addition, throughout 2014, Plaintiff regularly met with
Dr. Nair for numerous psychotherapy sessions. (See, e.g., Tr. 966, 1013, 1024, 580, 599.)
Therefore, both Drs. Ruiz and Nair were treating physicians. See Brickhouse v. Astrue, 331 F.
App’x 875, 877 (2d Cir. 2009) (citing 20 C.F.R. § 404.1502)). Both Dr. Ruiz and Dr. Nair
diagnosed Plaintiff with major depressive disorder. (Tr. 901, 966.) Nevertheless, the ALJ
concluded, based on the “significant weight” she accorded the opinion of non-examining medical
expert Dr. Efobi, that Plaintiff suffers from adjustment disorder. (Tr. 23.) Moreover, the ALJ
failed to expressly state what weight, if any, she gave to Dr. Ruiz and Nair’s diagnosis of Plaintiff.
By failing to assign any weight to Plaintiff’s treating psychiatrist and psychologist, and by
implicitly rejecting their diagnoses without providing any reasons for doing so, the ALJ committed
error that requires remand. See Halloran, 362 F.3d at 32-33; Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999) (“Failure to provide explicit ‘good reasons’ for not crediting [a treating source’s]
opinion of a claimant’s treating physician is a ground for remand.”); Hidalgo v. Bowen, 822 F.2d

39

294, 298 (2d Cir. 1987) (holding that the testimony of a nonexamining medical advisor “does not
constitute evidence sufficient to override the treating physician’s diagnosis”); Melendez v. Astrue,
No. 08-CV-6374 (LBS), 2010 WL 199266, at *3 (S.D.N.Y. Jan. 20, 2010) (finding that the ALJ
erred by failing to explain the limited weight given to plaintiff’s treating physician where the ALJ
adopted medical expert’s diagnosis of plaintiff, over diagnosis given by plaintiff’s treating
physician).
In addition, the ALJ inappropriately gave “great weight” to Dr. Efobi’s opinion. “Not
having examined [Plaintiff], [a non-examining medical expert’s] opinion cannot constitute
substantial evidence and normally may not override a treating source’s opinion unless it is
supported by sufficient medical evidence in the record.” Maldonado v. Comm’r of Soc. Sec., No.
12-CV-5297 (JO), 2014 WL 537564, at *14 (E.D.N.Y. Feb. 10, 2014); see also Burgess, 537 F.3d
at 130–32 (remanding where ALJ failed to give good reasons for adopting non-examining expert’s
findings over those of treating physician); Roman v. Astrue, No. 10-CV-3085 (SLT), 2012 WL
4566128, at *18 (E.D.N.Y. Sept. 28, 2012) (“Because mental disabilities are difficult to diagnose
without subjective, in-person examination, the treating physician rule is particularly important in
the context of mental health.” (quoting Canales v. Comm’r of Soc. Sec., 698 F. Supp. 2d 335, 342
(E.D.N.Y. 2010))). “[T]he opinion of a non-examining consultant may constitute substantial
evidence in support of the ALJ’s determination where . . . other evidence in the record supports
it.” Coburn v. Astrue, No. 07-CV-0029 (VEB), 2009 WL 4034810, at *6 (N.D.N.Y. Nov. 19,
2009) (citing Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995)). Here, however, there is no
medical evidence in the record to support Dr. Efobi’s opinion, let alone allow Dr. Efobi’s opinion
to override that of Plaintiff’s treating psychiatrist and psychologist. Thus, the ALJ committed

40

error by adopting the unsupported opinion of Dr. Efobi, over that of Plaintiff’s two treating sources,
and finding that Plaintiff suffers from adjustment disorder, rather than major depressive disorder.
B.

RFC Determination

Between steps three and four, the ALJ determines the claimant’s residual functional
capacity, i.e., the claimant’s ability to perform physical and mental work activities on a sustained
basis notwithstanding limitations imposed by her impairments. 20 C.F.R. §§ 416.920(e), 416.945.
In determining the claimant’s RFC, “the ALJ must consider all the relevant evidence, including
medical opinions and facts, physical and mental abilities, non-severe impairments, and [p]laintiff’s
subjective evidence of symptoms.” Diakogiannis v. Astrue, 975 F. Supp. 2d 299, 312 (W.D.N.Y.
2013) (alteration in original) (quoting Stanton v. Astrue, No. 07-CV-0803 (LEK)(VEB), 2009 WL
1940539, at *9 (N.D.N.Y. 2009) (citing 20 C.F.R. § 404.1545(b–e) (adopting report and
recommendation)). Physical RFC is assessed in terms of the claimant’s “ability to perform certain
physical demands of work activity, such as sitting, standing, walking, lifting, carrying, pushing,
pulling, or other physical functions (including manipulative or postural functions, such as reaching,
handling, stooping or crouching) . . . .” 20 C.F.R. §§ 404.1545(b), 416.945(b). Mental RFC is
assessed in terms of the claimant’s “ability to carry out certain mental activities, such as . . .
understanding, remembering, and carrying out instructions, and [ ] responding appropriately to
supervision, co-workers, and work pressures in a work setting. . . .” 20 C.F.R. §§ 404.1545(c);
416.945(c); see also SSR 85–15, 1985 WL 56857, at *7 (Jan. 1, 1985). The ALJ is required to
provide “a narrative discussion describing how the evidence supports each conclusion” and to
“explain how any material inconsistencies or ambiguities in the evidence in the case record were
considered or resolved.” SSR 96–8P, 1996 WL 374184, at *7 (July 2, 1996). In determining a
claimant’s RFC, the ALJ must also “consider all [of the claimant’s] symptoms, including pain, and
the extent to which [the claimant’s] symptoms can reasonably be accepted as consistent with the
41

objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(a). “When the medical
signs or laboratory findings show that [the claimant has] a medically determinable impairment(s)
that could reasonably be expected to produce . . . symptoms, such as pain, [the ALJ] must then
evaluate the intensity and persistence of [the claimant’s] symptoms so that [the ALJ] can determine
how [the claimant’s] symptoms limit [his or her] capacity for work.” 20 C.F.R. §§ 404.1529(c)(1),
416.929(c)(1).
The RFC is an issue reserved to the judgment of the Commissioner and therefore no special
weight needs to be given to any particular source. 20 C.F.R. §§ 404.1527(d), 416.927(d).
However, “[b]ecause an RFC determination is a medical determination, an ALJ who makes an
RFC determination in the absence of supporting expert medical opinion has improperly substituted
his own opinion for that of a physician, and has committed legal error.” Hilsdorf v. Comm’r of
Soc. Sec., 724 F. Supp. 2d 330, 347 (E.D.N.Y. 2010) (citations omitted). The ALJ should evaluate
every medical opinion “regardless of its source,” and determine how much weight to give each
opinion based on the factors provided by 20 C.F.R. §§ 404.1527(c) and 416.927(c). The Second
Circuit has routinely held that “failure to acknowledge relevant evidence or to explain its implicit
rejection is plain error.” Correale-Englehart, 687 F. Supp. 2d at 422.
1.

Mental RFC

The “special technique” applied at steps two and three assesses the functional effects of a
claimant’s mental impairments, but it “is entirely separate and analytically distinct from, a
subsequent determination of mental residual functional capacity[,]” where the focus is on “an
assessment of an individual’s ability to do sustained work-related physical and mental activities in
a work setting on a regular and continuing basis.” Avant v. Colvin, No. 6:15-CV-06671 (MAT),
2016 WL 5799080, at *3 (W.D.N.Y. Oct. 5, 2016) (first quoting Golden v. Colvin, No. 5:12-CV-

42

665 (GLS)(ESH), 2013 WL 5278743, at *3 (N.D.N.Y. Sept. 18, 2013) (adopting report and
recommendation) and then quoting SSR 96-8p (emphasis and alterations in original)).
Based on the conclusion that Plaintiff had an adjustment disorder, the ALJ determined that
Plaintiff was “limited to simple, routine, and minimal decision-making jobs known as low stresswork,” and work requiring minimal interaction with coworkers. (Tr. 14.) In making her mental
RFC determination, the ALJ gave “limited” weight to Dr. Navarro’s opinion that Plaintiff had
cognitive and emotional limitations because Dr. Navarro was not a mental health specialist and
because he did not refer Plaintiff to a psychiatrist. (Tr. 23.) The ALJ gave “some” weight to Dr.
Kushner’s consultative opinion that Plaintiff had moderate limitation in maintaining attention and
concentration, relating adequately with others, and appropriately dealing with stress, but still found
that Plaintiff’s psychiatric problems were not significant enough to interfere with her daily
functioning. (Tr. 24.) The ALJ gave “significant” weight to Dr. Efobi, the medical expert, who
opined that Plaintiff had mild limitation in activities of daily living, moderate limitation in social
functioning, mild limitation in concentration, and no episodes of decompensation. (Tr. 23.) The
ALJ never discussed the opinion of the consultative psychiatrist, Dr. Kennedy-Walsh. (See Tr.
10–26.)
Plaintiff contends that the ALJ’s determination as to her mental RFC lacks substantial
support from the medical record and demonstrates the ALJ’s failure to develop the record. (Dkt.
16–1 at 34.) Specifically, Plaintiff notes that the ALJ’s mental RFC determination is solely based
on the testimony of Dr. Efobi and that the ALJ disregarded the assessment by the SSA’s own
consultative examiner Dr. Kennedy-Walsh. (Dkt. 16–1 at 23, 34–35.) The Court agrees.

43

a. The ALJ Improperly Failed to Address Dr. Kennedy-Walsh’s Opinion
As Plaintiff points out, the ALJ erred by failing to consider or weigh the opinion of
consultative examining psychiatrist, Dr. Kennedy-Walsh. In determining a claimant’s RFC, an
ALJ must consider “all medical opinions received regarding the claimant.” Reider v. Colvin, No.
15-CV-6157 (MWP), 2016 WL 5334436, at *5 (W.D.N.Y. Sept. 23, 2016) (quoting Spielberg v.
Barnhart, 367 F. Supp 2d 276, 281 (E.D.N.Y. 2005) (citing 20 C.F.R. § 404.1527(d))). ALJs “may
not ignore [opinions from State agency medical and psychological consultants] and must explain
the weight given to these opinions in their decisions . . . .” Reider, 2016 WL 5334436, at *5
(quoting SSR 96-6, 1996 WL 374180, at *1 (July 2, 1996)); see also Jermyn v. Colvin, No. 13CV-5093 (MKB), 2015 WL 1298997, at * 15 (E.D.N.Y. Mar. 23, 2015) (“[T]he ALJ is required
to evaluate and weigh the medical findings of non-treating physicians.” (citing 20 C.F.R. § 416.927
(c)); Hill v. Astrue, No. 11-CV-0505 (MAT), 2013 WL 5472036, at *12 (W.D.N.Y. Sept. 30, 2013)
(“[W]ith regard to [the] consultative psychologist . . . , the ALJ failed to discuss his opinion or
explain the weight, if any, accorded to it[;] [t]his is further error requiring remand.”).
Dr. Kennedy-Walsh opined that Plaintiff had various moderate limitations in aspects that
would affect Plaintiff’s ability to work. For example, Plaintiff had moderate limitations in
understanding and memory; moderate limitations in concentration and persistence; mild to
moderate limitations in social interaction; and mild limitations in adaptation. (Tr. 149–50.)
Plaintiff also had, according to Dr. Kennedy-Walsh, moderate limitations in her ability to perform
activities within a schedule, maintain regular attendance, and be punctual within customary
tolerances; sustain an ordinary routine without special supervision; and complete a normal
workday and workweek without interruptions from psychologically based symptoms. (Tr. 150.)
However, the ALJ’s decision does not address Dr. Kennedy-Walsh’s opinion at all. (See Tr. 10–

44

26.) This failure to address Dr. Kennedy-Walsh’s opinion is especially problematic because it was
consistent with the opinion of the consultative psychologist, Dr. Kushner, Ph.D., who opined that
Plaintiff had “mild to moderate limitations” maintaining a regular schedule, (Tr. 451), and also
because there was no assessment of Plaintiff’s functional limitations by Plaintiff’s treating
psychiatrist and psychologist. See Maldonado, 2014 WL 537564, at *16 (finding that, “[i]n the
absence of any treating mental health physician, ALJ should give greater weight to [the]
assessment” of a consultative examining physician in determining claimant’s mental health RFC
than to the assessment of a non-examining, non-treating medical expert (citing Fofana v. Astrue,
No. 10-CV-0071 (LTS)(THK), 2011 WL 4987649, at *20 (S.D.N.Y. Aug. 9, 2011) report and
recommendation adopted by 2011 WL 5022817 (S.D.N.Y. Oct. 19, 2011))). Because the ALJ’s
decision does not reflect that Dr. Kennedy-Walsh’s opinion was considered, and because the
mental RFC limitations assessed by Dr. Kennedy-Walsh were never accounted for in the ALJ’s
RFC determination, the ALJ’s failure to consider Dr. Kennedy-Walsh’s opinion was not harmless.
See Dioguardi v. Comm’r of Soc. Sec., 445 F. Supp. 2d 288, 298 (W.D.N.Y. 2006) (“[W]ith no
explanation provided, it is not possible for the [c]ourt to know why . . . the ALJ chose to disregard
the evidence that was more favorable to plaintiff’s claim[;] [h]er failure to reconcile the RFC
assessment with medical source statements was error, and . . . the failure was not harmless.”); see
also Jackson v. Colvin, No. 1:14-CV-00055 (MAT), 2016 WL 1578748, at *4 (W.D.N.Y. Apr. 20,
2016) (“Further, because there was no treating physician’s opinion detailing [P]laintiff’s mental
limitations, the ALJ was required to discuss and weigh the opinions of the consulting state agency
psychologists in reaching a mental RFC finding.”).

45

b. The ALJ’s Mental RFC Finding Is Not Supported by Substantial
Evidence
While not addressing any of Dr. Kennedy-Walsh’s opinion, the ALJ gave “significant” and
“great” weight to the assessment of the State agency medical expert, Dr. Efobi. (Tr. 22, 23.) This
also is a ground for remand as Dr. Efobi did not examine Plaintiff and his assessment of Plaintiff’s
mental limitation is not supported by other evidence in the record.
When evaluating a mental disability, “it is improper to rely on the opinion of a non-treating, nonexamining doctor because the inherent subjectivity of a psychiatric diagnosis requires the
physician rendering the diagnosis to personally observe the patient.” Fofana, 2011 WL 4987649,
at *20 (S.D.N.Y. Aug. 9, 2011) (quoting Velazquez v. Barnhart, 518 F. Supp. 2d 520, 524
(W.D.N.Y. 2007)), report and recommendation adopted, No. 10-CV-71 (LTS)(THK), 2011 WL
5022817 (S.D.N.Y. Oct. 19, 2011). “The conclusions of a physician who merely reviews a medical
file and performs no examination are entitled to little if any weight.” Savage v. Colvin, No. 15CV-5774 (JFB), 2017 WL 776088, at *10 (E.D.N.Y. Feb. 28, 2017) (quoting Filocomo v. Chater,
944 F. Supp. 165, 170 n.4 (E.D.N.Y. 1996)); see also Roman, 2012 WL 4566128, at *16 (“The
medical opinion of a non-examining medical expert does not constitute substantial evidence and
may not be accorded significant weight.”); Cabibi v. Colvin, 50 F. Supp. 3d 213, 236 (E.D.N.Y.
2014) (“The general rule regarding the written reports of medical advisors who have not personally
examined a claimant is that such reports deserve little weight in the overall evaluation of
disability.” (citing Vargas v. Sullivan, 898 F.2d 293, 295–96 (2d Cir. 1990))). However, “‘the
opinion of a non-examining consultant may constitute substantial evidence in support of the ALJ’s
determination where . . . other evidence in the record supports it.’” Paz v. Comm’r of Soc. Sec.,
No. 14-CV-6885 (MKB), 2016 WL 1306534, at *18 (E.D.N.Y. Mar. 31, 2016) (quoting Coburn,
2009 WL 4034810, at *6).
46

The ALJ’s mental RFC determination closely follows Dr. Efobi’s opinion testimony given
at the hearing. (Compare Tr. 14 (ALJ’s conclusion that due to Plaintiff’s adjustment disorder,
Plaintiff is limited to low-stress work involving minimal interaction with coworkers), with Tr.
105–06 (Dr. Efobi’s testimony that “the only real limitation . . . would probably be something
around the social. . . . She would probably do best with minimal contact [at work].”). At the
hearing, the ALJ explained that Dr. Efobi’s opinion testimony would be subject to change given
that Dr. Efobi gave his testimony without reviewing any records from Plaintiff’s treating
psychiatrist or psychologist. (Tr. 107.) After Dr. Efobi reviewed the additional record, he noted
that the additional evidence did not change his opinion because the additional evidence was
composed of mostly physical health records. (Tr. 1092.) However, a review of the additional
evidence Dr. Efobi was given, e.g., Exhibit 11F (Tr. 518–1091), indicates that the additional
evidence included a significant amount of Plaintiff’s mental health record, including Plaintiff’s
treating psychiatrist and psychologist’s diagnosis that Plaintiff suffers from “Major Depressive
Disorder, Recurrent,” and that Plaintiff received psychotherapy and was prescribed medication for
anxiety. (See, e.g., Tr. 536–39 (Treatment Plan for Plaintiff’s major depressive disorder), Tr. 953
(prescribing Remeron for anxiety, in addition to antidepressant medication Plaintiff was taking at
the time).) In light of Dr. Efobi’s adherence to his original diagnosis of adjustment disorder—
even after receiving Plaintiff’s mental health records indicating a diagnosis of, and treatment for,
major depressive disorder diagnosis by Plaintiff’s treating psychiatrist and psychologist—there is
reason to question whether Dr. Efobi actually reviewed, or how thoroughly he reviewed, the
additional medical evidence he was provided before concluding that his opinion testimony need
not be changed. At a minimum, the ALJ should have required Dr. Efobi to explain why he
disagreed with the diagnosis rendered by Plaintiff’s two treating mental health professionals.

47

Instead, in her decision, the ALJ concluded that Dr. Efobi’s opinion was “well explained
as Dr. Efobi provided detailed testimony with citation to the record,” and that it was “generally
consistent with the record overall showing somewhat limited treatment until January 2014 and that
the claimant reported improvement.” (Tr. 23–24.) However, the only time Dr. Efobi provided
testimony with citation to the record was at the hearing, which was based on an admittedly
incomplete record that, inter alia, lacked the treatment information from Plaintiff’s psychiatrist
and psychologist. (See Tr. 100–12.)
Moreover, “[b]ecause stress is ‘highly individualized,’ mentally impaired individuals ‘may
have difficulty meeting the requirements of even so-called ‘low-stress’ jobs,’ and the
Commissioner must therefore make specific findings about the nature of a claimant’s stress, the
circumstances that trigger it, and how those factors affect [her] ability to work.” Marthens v.
Colvin, No. 3:15-CV-535 (CFH), 2016 WL 5369478, at *12 (N.D.N.Y. Sept. 22, 2016) (quoting
Paquette v. Colvin, 7:12-CV-1470 (TJM), 2014 WL 636343, at *7 (N.D.N.Y. Feb. 18, 2014)
(adopting report and recommendation)).

While the record indicates that Plaintiff reported

improvement with respect to her ability to handle stress, it also indicates that Plaintiff continued
to be overwhelmed and depressed when confronting psychosocial stressors (Tr. 569–70), and that
both Drs. Ruiz and Nair found continued treatment was necessary for Plaintiff (Tr. 580, 609). Such
evidence suggests that Plaintiff may have limitations in her ability to cope with certain triggers or
stress that could also affect her ability to work. Nevertheless, neither Dr. Efobi’s testimony nor
the ALJ’s decision addressed such evidence.
The Court finds that Dr. Efobi’s opinion as to Plaintiff’s mental functioning abilities was
not supported by substantial evidence, given the unexplained and significant difference between
Dr. Efobi’s diagnosis and Drs. Ruiz’s and Nair’s diagnosis of Plaintiff, combined with the fact that

48

Dr. Efobi failed to address pertinent issues relevant to Plaintiff’s ability to work, and only cited to
the record prior to Plaintiff’s supplementation of it.
c.

The ALJ Failed to Develop the Record With Regard to Plaintiff’s
Mental RFC

Plaintiff asserts that the ALJ failed to develop the record because she failed to obtain mental
RFC assessments from Plaintiff’s treating psychiatrist or treating psychologist, Drs. Ruiz and Nair,
respectively. The Court agrees; given that there was insufficient medical evidence supporting the
ALJ’s mental RFC determination, the ALJ had a duty to develop the record.
While a “claimant has the general burden of proving that he or she has a disability within
the meaning of the Act, . . . because a hearing on disability benefits is a nonadversarial proceeding,
the ALJ generally has an affirmative obligation to develop the administrative record.” Burgess,
537 F.3d at 128 (alteration, citation, and internal quotation marks omitted). This duty applies
“even where the applicant is represented by counsel . . . .” Eusepi v. Colvin, 595 F. App’x 7, 9 (2d
Cir. 2014). “An ALJ does not need to affirmatively obtain the RFC opinion of a treating physician
where there are no obvious gaps in the medical history.” Gonzalez v. Colvin, No. 15-CV-2159
(MKB), 2016 WL 5477591, at *18 (E.D.N.Y. Sept. 28, 2016) (citing Swiantek v. Comm’r of Soc.
Sec., 588 F. App’x 82, 84 (2d Cir. 2015)).
While a “record is not necessarily incomplete simply because it lacks an RFC assessment[,]
. . . 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.” Davilar v.
Comm’r of Soc. Sec., No. 15-CV-7200 (LDH), 2017 WL 1232490, at *5 (E.D.N.Y. Mar. 31, 2017)
(citations omitted).
The commissioner’s own regulations . . . , 20 C.F.R. § 404.1513(b)(6) states that a
treating source[’]s medical report should include “[a] statement about what [the
claimant] can still do despite [his or her] impairment(s).” Although the regulation
49

provides that the lack of such a statement will not render a report incomplete, it
nevertheless promises that the Commissioner will request one.
Robins v. Astrue, No. 10-CV-3281 (FB), 2011 WL 2446371, at *3 (E.D.N.Y. Jun. 15, 2011).
“Social Security Ruling 96-5p confirms that the Commissioner interprets those regulations to mean
that ‘[a]djudicators are generally required to request that acceptable medical sources provide these
statements with their medical reports.’” Id. Although the ALJ obtained medical records from
Plaintiff’s psychiatrist and psychologist (Tr. 216), she did not obtain from them assessments of
Plaintiff’s mental limitations related to her ability to work. (See Tr. 22 (“No psychiatric treating
source has rendered a Mental Residual functional capacity.”).) Nevertheless, the record shows
that the ALJ never requested a statement as to Plaintiff’s functional limitations from either Dr.
Ruiz or Dr. Nair, and instead made a mental RFC determination based significantly on Dr. Efobi’s
opinion, with little weight being given to the opinion of Dr. Kushner, the consultative psychologist
who examined Plaintiff, and no consideration at all being given to the opinion of Dr. KennedyWalsh, the consultative psychiatrist. This was reversible error. See Johnson v. Astrue, 811 F.
Supp. 2d 618, 629–31 (E.D.N.Y. 2011) (remanding and directing the ALJ to develop the record
by obtaining RFC assessments from claimant’s treating sources, even though the record contained
over one-hundred pages of well-documented medical evidence covering over a three-year period);
Robins, 2011 WL 2446371, at *4 (rejecting the Commissioner’s argument that the ALJ adequately
developed the record by obtaining medical records where the ALJ did not attempt to obtain medical
opinions from claimant’s treating physicians). 29

29

As the Commissioner points out, the Second Circuit found in Tankisi v. Comm’r of Soc.
Sec., that it is inappropriate to remand solely because the ALJ had failed to request medical
opinions in assessing residual functional capacity. See Tankisi., 521 F. App’x 29, 34 (2d Cir.
2013). But, in Tankisi—even though the record did not contain formal opinions regarding the
claimant’s RFC from her treating physicians—the record “include[d] an assessment of [the
50

Furthermore, to the extent the ALJ discounted Dr. Kushner’s opinion because, inter alia,
it was unclear whether Dr. Kushner examined any medical evidence before rendering his opinion
(Tr. 22), the ALJ should have sought clarification as to the evidence Dr. Kushner reviewed. See
Maldonado, 2014 WL 537564, at *16 (“The ALJ had an affirmative duty to develop the record
and use reasonable efforts to seek the additional information from [the examining medical source]
that would clarify his RFC assessment.”). The ALJ’s failure to do so warrants remand of this
matter. See Davilar, 2017 WL 1232490, at *5; Siegmund v. Colvin, 190 F. Supp. 3d 301, 309
(E.D.N.Y. 2016) (remanding and noting, “given 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”); see also Johnson v. Barnhart, No. 02-CV-1704 (NGG), 2004 WL 725309,
at *3 (E.D.N.Y. Mar. 8, 2004) (remanding where the ALJ “should have made efforts to obtain
from the plaintiff’s psychiatrist or psychologist a more detailed description of the plaintiff’s
limitations”).
*

*

*

On remand, the ALJ should evaluate Dr. Kennedy-Walsh’s opinion and identify and
explain the weight, if any, accorded to that opinion. If the ALJ rejects Dr. Kennedy-Walsh’s
opinion, the ALJ should explain, in accordance with SSR 96-6 and 96-9p, why the opinion is not
incorporated into the RFC assessment. The ALJ should also further develop the record and seek
assessments of Plaintiff’s mental limitations from Plaintiff’s treating psychiatrist and/or
psychologist. To the extent the basis of Dr. Kushner’s opinion as to Plaintiff’s mental RFC is
unclear, the ALJ should develop the record and seek clarification from Dr. Kushner. Moreover,

claimant’s] limitations from a treating physician.” Id. Here, neither of Plaintiff’s treating mental
health sources, Dr. Ruiz and Dr. Nair, provided an assessment of her mental limitations.
51

the ALJ should consider making specific findings about the nature of Plaintiff’s ability to handle
stress, potential stress-triggers, and whether such factors would affect Plaintiff’s ability to work
on a sustained basis. 30
2.

Physical RFC

The ALJ found that Plaintiff could work at the “light” exertional level as defined in 20
C.F.R. § 416.967(b), i.e., that she was capable of sitting, standing, and walking for six hours in an
eight-hour workday, and lifting no more than twenty (20) pounds at a time with frequent lifting or
carrying of objects weighing up to ten (10) pounds. Plaintiff asserts that the ALJ failed to develop
the record before making this RFC determination, incorrectly weighed Dr. Navarro’s opinion
based on a misunderstanding of his report, and that the determination was not supported by
substantial evidence. (Dkt. 16–1 at 32–33.) For the reasons stated below, the Court finds that the
ALJ erred by improperly discounting Dr. Navarro’s opinion, failing to consider relevant evidence,
and failing to develop the record with respect to Plaintiff’s physical functional limitations.
a.

The ALJ Erred by Discounting Dr. Navarro’s Opinion Based on an
Incorrect Understanding of the Record

As previously noted, Dr. Navarro from FedCap opined that Plaintiff had limitation in
standing, walking, pushing, pulling, sitting, reaching, kneeling, squatting, and bending. (Tr. 490–

30

The Court need not address Plaintiff’s other arguments as to the error committed by the
ALJ as some of those arguments are not fully developed, and the Court remands the case for a new
hearing on other grounds. For example, Plaintiff also argues—relying on Pabon v. Barnhart, 273
F. Supp. 2d 506, 515–16 (S.D.N.Y. 2003)—that her case must be remanded because a “mental
RFC must be expressed in terms of the following work-related functions: understanding, carrying
out, and remembering instructions; using judgment in making work-related decisions; responding
appropriately to supervision, co-workers and work situation; and dealing with changes in a routine
work setting,” and that the ALJ failed to provide a detailed “function-by-function” assessment
(Dkt. 16-1 at 23, 34). The Second Circuit, however, has held that the failure to conduct a functionby-function analysis is not a per se ground for remand. Cichocki v. Astrue, 729 F.3d 172, 176–77
(2d Cir. 2013).
52

91.) However, the ALJ gave the opinion “limited” weight, finding that it was “vague and poorly
explained,” that Dr. Navarro failed to review the entire record, and also that his findings on
examination of Plaintiff was “normal.” (Tr. 23.) An examination of Dr. Navarro’s report,
however, indicates that Dr. Navarro, upon examining Plaintiff, observed abnormal
musculoskeletal functions in range of motion, strength, and tone. (Tr. 490.) Not only did Dr.
Navarro note Plaintiff’s report of back, joint, and leg pain, but the doctor also observed swelling,
stiffness, and limitations of movement. (Tr. 486.) Remand is appropriate because the ALJ’s
explanation for rejecting Dr. Navarro’s opinion was, in part, “factually flawed.” See Greek v.
Colvin, 802 F.3d 370, 376 (2d Cir. 2015) (vacating district court’s judgment and remanding to
Commissioner for further proceeding where the ALJ’s explanation for rejecting treating
physician’s opinion was “factually flawed”).
Additionally, the ALJ failed to develop the record with respect to Dr. Navarro’s medical
opinion and assessment of Plaintiff’s functional limitations. To the extent the ALJ found Dr.
Navarro’s opinion vague and in need of further explanation, the ALJ should have sought additional
information and clarification from Dr. Navarro. Maldonado, 2014 WL 537564, at *16; see also
Kessler v. Colvin, No. 14-CV-8201 (JPO), 2015 WL 6473011, at *5 (S.D.N.Y. Oct. 27, 2015)
(finding that the ALJ had a duty to clarify inconsistencies where the ALJ gave “some weight” to a
physician’s opinion on the grounds that the physician “just ‘checked the boxes’ and drew
conclusions that were inconsistent with his treatment notes”).
b.

The ALJ Failed to Explain the Physical RFC Determination

An “ALJ must [ ] adequately explain his reasoning in making the findings on which his
ultimate decision rests . . . .” Villareal v. Colvin, No. 13-CV-6253 (LGS), 2015 WL 6759503, at
*18 (S.D.N.Y. Nov. 5, 2015) (adopting report and recommendation). While the ALJ’s decision

53

summarizes, in detail, the medical evidence in the record in concluding that Plaintiff is limited to
“light” work (see Tr. 18–22), it fails to explain how the ALJ’s RFC finding related to this detailed
summary of the medical evidence. In spite of the detailed summary of the record, it is not clear
from the decision which medical evidence the ALJ specifically relied on in formulating the
physical RFC finding. This is an independent reason for remand. See Cross v. Colvin, No. 15CV-00878 (MAT), 2016 WL 6659095, at *2 (W.D.N.Y. Nov. 11, 2016) (“The ALJ issued a
detailed RFC finding, and although he summarized the medical evidence in the administrative
record, he did not explain how his detailed RFC finding related to the medical evidence . . . .”);
see also Glessing v. Comm’r of Soc. Sec., No. 13-CV-1254 (BMC), 2014 WL 1599944, at *9
(E.D.N.Y. Apr. 21, 2014) (“The problem . . . is that, although the ALJ certainly made findings as
to claimant’s limitations, the ALJ provided no analysis explaining upon what evidence those
findings were based. Instead, the decision simply lists the ALJ’s RFC findings, and then cites
particular pieces of evidence in the record, without connecting the two in any way.”).
While the Commissioner asserts that Dr. Wosnitzer’s opinion that Plaintiff has “moderate”
limitations in prolonged walking does not preclude light work (Dkt. 23 at 35), that alone is not
sufficient for this Court to glean the ALJ’s reasoning behind her physical RFC determination. See
Cross, 2016 WL 6659095, at *2 (“[A]lthough a finding of ‘moderate’ limitations in [the] areas [of
bending, lifting, prolonged standing, and prolonged sitting] can support a finding of light work,
the ALJ must ‘discuss and provide reasons tending to support the finding that, despite the moderate
limitations . . . [the plaintiff] could still perform light work.” (citing Carroll v. Colvin, No. 13-CV456 (WMS), 2014 WL 2945797 (W.D.N.Y. Jun. 30, 2014))).

54

c. The ALJ Failed to Develop the Record as to Plaintiff’s RFC
The ALJ also failed to develop the record adequately for purposes of determining
Plaintiff’s physical RFC. Although Plaintiff’s medical record is voluminous, save for the reports
of Dr. Navarro from FedCap and two non-medical source State agency employees (disability
analyst Nwafor and Interviewer Lachman), there is little indication in the record as to Plaintiff’s
physical capacity to perform work-related activities. It is true, as the Commissioner noted, that
some of the physical therapy notes indicate that Plaintiff had good balance, generally had strength
that was “within normal limits,” was able to walk independently using a cane, and reported her
pain to have decreased to a level of 2/10 after one of the therapy sessions (See Tr. 712–13 (October
14, 2013 physical therapy notes), Tr. 868–69 (February 12, 2014 physical therapy notes), Tr. 974
(March 24, 2014 physical therapy notes).) Moreover, the record indicates that Plaintiff did not
report, to any of her physicians, that she experienced weakness in her legs. (See, e.g., Tr. 1173,
1274, 1352, 1729, 1789, 1914.) But, based on the ALJ’s decision, it is unclear how such evidence
alone supported the ALJ’s finding that Plaintiff is capable of sitting, standing, and walking for six
hours in an eight-hour workday, and can also lift up to twenty (20) pounds at a time or carry up to
ten (10) pounds, when Plaintiff also consistently reported to her physicians that her back and knee
pain was exacerbated by sitting or standing. (Tr. 867, 1250, 1576, 1636, 1943.) Furthermore,
nothing in the record suggests anything about Plaintiff’s ability to lift or carry a certain amount of
weight.
In light of conflicting medical evidence in the record, combined with the lack of explicit
functional assessments by Plaintiff’s treating physicians, the ALJ should have requested an RFC
assessment from one of Plaintiff’s many treating physicians who examined her on an ongoing

55

basis.

31

See Beller v. Astrue, No. 12-CV-5112 (VB), 2013 WL 2452168, at *18–19 (S.D.N.Y.

Jun. 5, 2013) (adopting report and recommendation that found the ALJ should have sought an RFC
assessment from plaintiff’s treating physician where the record contained no treating physician
opinions regarding her physical abilities and only included a medical source statement regarding
plaintiff’s physical limitations from a consultative examiner); Aceto v. Comm’r of Soc. Sec., No.
08-CV-169 (FJS), 2012 WL 5876640, at *16 (N.D.N.Y. Nov. 20, 2012) (“Since the ALJ had
nothing more than treatment records and consultative reports to review, he had an affirmative duty
to develop the record and request that Plaintiff’s treating physicians assess her RFC.”); Walker v.
Astrue, No. 08-CV-0828(A)(M), 2010 WL 2629832, at *6 (W.D.N.Y. Jun. 11, 2010) (“[A]n ALJ
is not qualified to assess a claimant’s RFC on the basis of bare medical findings, and as a result[,]
an ALJ’s determination of RFC without a medical advisor’s assessment is not supported by
substantial evidence. Where the medical findings in the record merely diagnose [the] claimant’s
exertional impairments and do not relate these diagnoses to specific residual functional
capabilities[,] . . . [the Commissioner may not] make the connection himself.” (quoting Deskin v.
Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008)) (internal quotation marks
omitted)), report and recommendation adopted, 2010 WL 2629821 (W.D.N.Y. Jun. 28, 2010). 32

31

The September 25, 2013 consultative examination report indicates that “the treating
source does not accept the state approved vendor fee.” (Tr. 145.) However, it is unclear which
treating physician this statement is referring to and whether it was the reason why none of
Plaintiff’s treating physicians provided a statement assessing Plaintiff’s RFC.
32

Moreover, even if the ALJ did err in determining Plaintiff’s neck pain was not severe,
remand would be appropriate because the ALJ did not account for any limitations stemming from
Plaintiff’s neck pain in making the RFC determination. See 20 C.F.R. § 404.1545(a)(2) (requiring
an RFC determination to account for limitations imposed by both severe and nonsevere
impairments); see also Paz, 2016 WL 1306534, at *14 (noting that where an ALJ “fails to account
for any functional limitations associated with the [non-severe] impairments in determining the
claimant’s RFC, a court must remand for further administrative proceedings” (citing ParkerGrose, 462 F. App’x at 18)).
56

*

*

*

On remand, the ALJ should further develop the record by seeking opinions and assessments
from either Drs. Dovnarsky, Cruz, Ortiz, or any other appropriate medical sources; address
Plaintiff’s neck pain and any resulting limitations to Plaintiff’s work-related physical functioning;
and clearly explain the rationale as to the physical RFC determination, specifically citing to
medical evidence. 33
C.

Remaining Arguments

Plaintiff also argues that the ALJ improperly evaluated Plaintiff’s credibility, failed to
properly evaluate her chronic pain, and failed to consider the observations of Lachman, who noted
Plaintiff’s physical limitations. Because the Court has determined that remand is appropriate to
fully develop the record upon which the Listings, treating physician opinions, and RFC and
credibility assessments are based, the Court need not address Plaintiff’s remaining arguments.
Rosa v. Callahan, 168 F.3d 72, 82 n.7 (2d Cir. 1999) (“Because we have concluded that the ALJ
was incorrect in her assessment of the medical evidence, we cannot accept her conclusion
regarding . . . credibility.”); Jackson, 2014 WL 4695080, at *21 (“Given that the Court
recommends remand for further development of the record, the Commissioner will be required to
reassess both [plaintiff’s] credibility and [his] RFC in light of the new evidence.”). On remand,
the ALJ should consider these remaining arguments raised by Plaintiff when re-examining the
medical evidence and reassessing Plaintiff’s RFC and credibility.

33

Because the ALJ did not address Plaintiff’s neck pain and the mental RFC determination
was not based on substantial evidence in the record, remand is appropriate—even though the ALJ
included sedentary jobs at stage five of the analysis.
57

CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the pleadings is
denied and Plaintiff’s cross-motion for judgment on the pleadings is granted. Pursuant to the fourth
sentence of 42 U.S.C. § 405(g), the Commissioner’s decision is vacated, and this matter is
remanded for further administrative proceedings consistent with this Order. The Court also finds
that remand to a new ALJ is appropriate in this case. While the decision to assign a case to a new
ALJ on remand is generally left to the discretion of the Commissioner, the Court directs the
Commissioner to assign a new ALJ in light of the Padro case. See Arvanitakis v. Comm’r of Soc.
Sec., No. 12-CV-1232 (CBA), 2015 WL 2240790, at *14 (E.D.N.Y. May 12, 2015). The Clerk of
Court is respectfully requested to enter judgment accordingly.

SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 28, 2017
Brooklyn, New York

58