Benjamin v. Commissioner of Social Security

Filing 23

MEMORANDUM OF DECISION AND ORDER: As set forth in the Court's September 30, 2017 Memorandum of Decision and Order, Defendant's motion for judgment on the pleadings 19 is hereby DENIED. Pursuant to 42 U.S.C. § 405(g) the Commissioner& #039;s decision is remanded for further proceedings and additional findings consistent with this Memorandum of Decision and Order. The Clerk of the Court is respectfully requested to enter judgment accordingly. See attached Memorandum and Order for details. The Clerk of Court is directed to mail a copy of this order to the pro se plaintiff. Ordered by Judge LaShann DeArcy Hall on 9/30/2017. (Figueroa, Tiffani)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FAYDEE BENJAMIN

NOT FOR PUBLICATION
MEMORANDUM OF
DECISION AND ORDER

Plaintiff,
16-CV-1730 (LDH)
-againstCAROLYN W. COLVIN
ACTING COMMISSIONER OF SOCIAL SECURITY
Defendant.
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LASHANN DEARCY HALL, United States District Judge:
Plaintiff Faydee Benjamin, proceeding pro se, appeals the decision of Defendant
Commissioner of Social Security (“Commissioner”) denying Plaintiff’s application for
supplemental social security income (“SSI”). Defendant has moved pursuant to Federal Rule of
Civil Procedure 12(c) for judgment on the pleadings, requesting that this Court affirm the
Commissioner’s determination that Plaintiff was not disabled. 1
BACKGROUND 2
I.

Procedural History
Plaintiff filed an application for SSI benefits on April 30, 2012, alleging a disability onset

date of October 30, 2011. (See Tr. 223-28, 265, 273.) 3 Specifically, Plaintiff alleged that she
was disabled due to pain from arthritis of her back, hips, and knees. (Tr. 265.) By order dated
September 20, 2012, Plaintiff’s claims were denied. (Tr. 125-28.) Plaintiff subsequently

1

Plaintiff did not file an opposition to Defendant’s motion.
The Court assumes the parties’ familiarity with the record for purposes of this appeal.
3
Citations to “Tr.” refer to the certified copy of the administrative record of proceedings filed by the Commissioner.
2

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requested an administrative hearing, which was held on April 10, 2014. (Tr. 112-20.) The
hearing was adjourned, however, to allow Plaintiff to find an attorney. (Tr. 119-20.) On
September 4, 2014, a second hearing was held before Administrative Law Judge (“ALJ”) Joani
Sedaca. (See Tr. 37-86.) At that hearing, the ALJ heard argument concerning Plaintiff’s alleged
physical impairments and a mental impairment, which was raised for the first time upon the
denial of Plaintiff’s initial claim. (See id.) The ALJ denied Plaintiff’s claims on September 22,
2014, upon finding Plaintiff was not disabled. (See Tr. 20-31.)
II.

Decision by the ALJ
In finding that Plaintiff was not disabled, the ALJ followed the sequential five-step

process that governs claims of disability for purposes of obtaining SSI. See 20 C.F.R. §
416.920(a)-(h). First, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since August 30, 2012, the application date. (Tr. 22.) Second, the ALJ determined that Plaintiff
had the following severe impairments: degenerative disc disease of the lumbar spine,
degenerative joint disease of the right knee and bilateral hips, and obesity. (Id.) The ALJ also
determined that Plaintiff had the following non-severe impairments: a cardiac impairment and
dysthymic disorder. (Id.) With regard to the non-severe impairments, the ALJ found that while
Plaintiff had a mild mitral and tricuspid valve regurgitation, she did not complain of any cardiac
impairment during the hearing and there was very little in the record showing that the cardiac
impairment caused significant limitations because most of her treating source evidence
concerned her orthopedic impairments. (Tr. 23.) As for the dysthymic disorder, the ALJ found
that it did not cause more than minimal limitations in the Plaintiff’s ability to perform basic
mental work activities. (Id.) Specifically, the ALJ determined that Plaintiff did not meet the
functional limitations set forth in “paragraph B” of listing 12.06 because she had: a mild

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restriction with respect to activities of daily living; a mild restriction with respect to social
functioning; mild restrictions with respect to concentration, persistence, or pace; and no evidence
of any episodes of decompensation of extended duration. (Tr. 23-24.) Third, the ALJ found that
Plaintiff’s physical impairments did not meet or equal the severity of the impairments in the
listings. (Tr. 24.) Fourth, the ALJ determined that, in light of Plaintiff’s impairments, she had a
residual functional capacity (“RFC”) to perform “sedentary work,” as defined in 20 C.F.R. §
416.967(a), with the following exertional requirements: she can only occasionally climb, stoop,
crouch, and kneel, but can never crawl, and can only occasionally push and/or pull with both
legs. (Id.) Fifth, the ALJ determined that Plaintiff could perform the following jobs: bench
hand, addresser, and order clerk. (Tr. 30.)
Plaintiff filed a request for review with the Appeals Council, which was denied on
January 27, 2016, rendering the ALJ’s decision final. (See Tr. 1-7.)
STANDARD OF REVIEW
A motion for judgment on the pleadings is reviewed under the same standard as a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6). Bank of New York v. First
Millennium, 607 F.3d 905, 922 (2d Cir. 2010) (“The same standard applicable to Fed. R. Civ. P.
12(b)(6) motions to dismiss applies to Fed. R. Civ. P. 12(c) motions for judgment on the
pleadings.”). Even where a motion for judgment on the pleadings is unopposed, the court must
still review the entire record and ensure that the moving party is entitled to judgment as a matter
of law. See Martell v. Astrue, No. 09 Civ. 1701, 2010 WL 4159383, at *2 n.4 (S.D.N.Y. Oct. 20,
2010) (recognizing the court’s obligation to review entire record in deciding unopposed motion
for judgment on the pleadings in social security benefits case); see also McDowell v. Comm’r of
Soc. Sec., No. 08-CV-1783, 2010 WL 5026745, at *1 (E.D.N.Y. Dec. 3, 2010) (“Although the

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non-movant’s failure to respond ‘may allow the district court to accept the movant’s factual
assertions as true, the moving party must still establish that the undisputed facts entitle him to a
judgment as a matter of law.’” (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d
241, 246 (2d Cir. 2004))). Further, when a plaintiff proceeds pro se, the court will read her
submissions liberally and “interpret them to raise the strongest arguments that they suggest.”
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citing Mikinberg v. Baltic S.S. Co., 988 F.2d
327, 330 (2d Cir. 1993)).
Under the Social Security Act, a disability claimant may seek judicial review of the
Commissioner’s decision to deny his or her application for benefits. See 42 U.S.C. §§ 405(g),
1383(c)(3); Felder v. Astrue, No. 10-CV-5747, 2012 WL 3993594, at *8 (E.D.N.Y. Sept. 11,
2012). In conducting such a review, the Court is tasked only with determining whether the
Commissioner’s decision is based on correct legal standards and supported by substantial
evidence. See 42 U.S.C. § 405(g); Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (citing
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)).
The substantial evidence standard does not require that the Commissioner’s decision be
supported by a preponderance of the evidence. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir.
1982) (“[A] factual issue in a benefits proceeding need not be resolved in accordance with the
preponderance of the evidence . . . .”). Instead, the Commissioner’s decision need only be
supported by substantial evidence, which is “more than a mere scintilla” of evidence and “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Pollard v. Halter, 377 F.3d 183, 188 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)).

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In deciding whether the Commissioner’s findings meet this standard, the court must
examine the entire record and consider all evidence that could either support or contradict the
Commissioner’s determination. See Snell v. Apfel, 171 F.3d 128, 132 (2d Cir. 1999). Still, the
court must defer to the Commissioner’s conclusions regarding the weight of conflicting
evidence. See Cage v. Comm’r of Social Sec., 692 F.3d 118, 122 (2d Cir. 2012) (citing Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998)). If the Commissioner’s findings are
supported by substantial evidence, then they are conclusive and must be affirmed. Ortiz v.
Comm’r of Soc. Sec., No. 15-CV-3966, 2016 WL 3264162, at *3 (E.D.N.Y. June 14, 2016)
(citing 42 U.S.C. § 405(g)). This is so, even if substantial evidence could support a contrary
conclusion or where the Court’s independent analysis might differ from the Commissioner’s.
See Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Rutherford v. Schweiker,
685 F.2d 60, 62 (2d Cir. 1982)); Anderson v. Sullivan, 725 F. Supp. 704, 706 (S.D.N.Y. 1989);
Spena v. Heckler, 587 F. Supp. 1279, 1282 (S.D.N.Y. 1984).
As noted above, the Social Security Act establishes a sequential five-step process for
determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §
416.920(a)-(h). At the first step, the Commissioner must determine whether the claimant is
engaged in substantial gainful activity. See id. § 416.920(b). If not, the Commissioner must
proceed to the second step to determine whether the claimant has a severe medically
determinable impairment or combination of impairments. See id. § 416.920(c). An impairment
is severe if it significantly limits a claimant’s abilities to perform “basic work activities.” See id.
§ 416.920(c). If the claimant has a medically determinable severe impairment, the
Commissioner will proceed to step three to determine whether any identified severe impairments

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meet or medically equal those identified in Appendix 1 to the Act. See id. § 416.920(d)-(e).
Such impairments are per se disabling if a claimant meets the duration requirements. See id.
When evaluating the severity of mental impairments, the Code of Federal Regulations for
Social Security (the “Regulations”) requires the ALJ to apply an additional “special technique”
at the second and third steps of the review. See 20 C.F.R. § 416.920a(a); Kohler v. Astrue, 546
F. 3d 260, 265-66 (2d Cir. 2008). 4 First, the ALJ must determine whether the claimant has a
medically determinable mental impairment. See 20 C.F.R. § 416.920a(b)(1). Second, if such a
mental impairment is found, the ALJ must rate the degree of the claimant’s functional limitations
in light of the impairment(s) in four areas: (1) activities of daily living; (2) social functioning;
(3) concentration, persistence, or pace; and (4) episodes of deterioration or decompensation at
work or in work-like settings. See 20 C.F.R. § 416.920a(c)(3). The ALJ must make “a specific
finding as to the degree of limitation in each of the functional areas.” 20 C.F.R. §
416.920a(e)(4). If a claimant’s mental impairment is severe, the ALJ will determine whether the
impairment is per se disabling because it meets or medically equals the severity of a listed mental
disorder. See id. § 416.920a(d)(2).
To be per se disabling, a mental impairment must result in at least two of the following:
marked restrictions of activities of daily living; marked difficulties in maintaining social
functioning; and/or marked difficulties in maintaining concentration, persistence, or pace. See
20 C.F.R. § 404, Subpt. P, App. 1. If the requisite findings are established, the claimant will be
found to be disabled. 20 C.F.R. § 416.920a(c). If not, the ALJ will proceed to the next step.

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On January 17, 2017, following the date of the ALJ’s decision, new regulations came into effect changing the test
applied to assess whether a mental impairment is disabling. See 20 C.F.R. § 416.920a (effective Jan. 17, 2017). The
Court applies the regulations in effect at the time of the ALJ’s decision. See Revised Med. Criteria for Evaluating
Mental Disorders, 81 Fed. Reg. 66138-01, 66138 n.1 (Sept. 26, 2016) (“We expect that Federal courts will review
our final decisions using the rules that were in effect at the time we issued the decisions”).

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For physical or mental impairments, if a claimant’s impairments are not per se disabling,
the ALJ must assess the claimant’s ability to work in light of her limitations, otherwise known as
her RFC. See id. §§ 416.920(a)(4)(iv), 416.920a(d)(3), 416.945(a)(1). Once the claimant’s RFC
is decided, the Commissioner must undertake to establish whether the claimant’s RFC will allow
her to perform past relevant work. See id. § 416.920(f). If the claimant’s RFC precludes her
from performing past relevant work, the Commissioner bears the burden of proving that, given
her RFC, age, education, and work experience, the claimant can do other work that exists in
significant numbers in the national economy. See id. § 416.912(f). If such work exists, the
claimant is not disabled. See id.
DISCUSSION
I.

The ALJ’s Determinations as to Plaintiff’s Physical Impairments
A. The ALJ’s Determination as to the Severity of Plaintiff’s Physical
Impairments Was Supported by Substantial Evidence
The ALJ determined that Plaintiff had the following severe impairments: degenerative

disc disease of the lumbar spine; degenerative joint disease of the right knee and bilateral hips;
and obesity. (Tr. 22.) Given that the ALJ’s findings are consistent with Plaintiff’s application
for benefits, the Court assumes that Plaintiff does not take issue with these findings. However,
in reviewing a final decision of the Commissioner, the Court must independently examine the
entire record and determine whether the Commissioner’s findings are supported by substantial
evidence. See Snell, 171 F.3d at 132.
With respect to Plaintiff’s degenerative disc disease of the lumbar spine, a March 30,
2011 x-ray showed: “[m]ultilevel discogenic degenerative change”; “[f]acet joint arthrosis on
the right at L5-S1”; and “[b]ony osteophyte encroaches posteriorly from the lower endplate L5.”
(Tr. 330, 543.) A September 2, 2011 MRI showed “[a]cute small left paracentral disc protrusion
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at L4-L5” and “[c]hronic broad-based disc protrusion and facet hypertrophy at L5-S1 causing
moderate to severe narrowing of the left foramina,” which the report indicates should have been
correlated for signs of radiculopathy. (Tr. 331, 478, 524, 529). Additionally, a May 5, 2012 xray revealed a “needle in the lumbar sacral region with the tip projecting over L3-L4, L4-L5, L5S1 facet joint.” (Tr. 474.) A March 31, 2014 x-ray also showed degenerative joint disease at L5S1, (see Tr. 525), and an August 8, 2014 MRI revealed mild facet enlargement at L4-L5 and L5S1, broad disc bulging with midline annular tear causing bilateral foraminal narrowing at L4-L5,
and disc degeneration with broad disc bulging at L5-S1 with mild bilateral neural foraminal
narrowing. (See Tr. 721.) In addition to this objective evidence, Plaintiff testified that she has
pain in her back, had injections in her back in 2012, and takes Motrin for pain relief. (See Tr. 56,
69.) Plaintiff also informed a consultative medical examiner, Dr. Vinod Thukral, that she had
lower back pain after receiving an epidural injection while giving birth in 2008. (See Tr. 358.)
Moreover, the record reveals that Plaintiff underwent physical therapy for her back from October
2012 to August 2014. (See Tr. 593-617.) Accordingly, substantial evidence in the record
supports the ALJ’s finding that Plaintiff’s degenerative disc disease of the lumbar spine is
severe.
The record similarly supports a finding that Plaintiff’s degenerative joint disease of the
right knee and bilateral hips is severe. A February 28, 2012 x-ray revealed that Plaintiff had
degenerative changes in the hips, with changes in the left hip being greater than the right hip.
(See Tr. 477, 528, 540.) On March 27, 2012, an x-ray of Plaintiff’s right knee showed slight
varus angulation of the knee, widening of the medial patellofemoral joint space, and a small
bony spur involving the undersurface of the patella and at the insertion of the quadriceps tendon.
(See Tr. 481, 532-33.) A February 14, 2013 x-ray showed Plaintiff had degenerative changes in

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both the right and left hip, narrowed joint space and reactive sclerosis and cystic changes in the
right and left acetabulum, and osteophytes in the left femoral head. (See Tr. 410.) Bilateral hip
x-rays from March 31, 2014 also showed findings compatible with osteoarthritis, most severe on
the left. (See Tr. 522.) Additionally, Plaintiff complained of hip and knee pain during her visits
with Dr. Geoffrey Phillips. (See Tr. 630-37.) Based on the record, the ALJ’s findings were
supported by substantial evidence.
Finally, the ALJ considered Plaintiff’s obesity. 5 The ALJ explicitly found that Plaintiff’s
obesity was a severe impairment based on a September 5, 2012 internal medicine consultative
examination. (See Tr. 22-23.) That exam indicated that Plaintiff was obese, as she was six feet
tall and 258 pounds. (See Tr. 359.) The ALJ determined that based on this height and weight,
Plaintiff had a body mass index (“BMI”) of 35 and “as per [Social Security Ruling] 02-1, a BMI
of 30 or greater is indicative of obesity, and can compound the effects of, for example,
orthopedic impairments.” (Tr. 23.) Accordingly, the ALJ’s determination that Plaintiff’s obesity
was a severe impairment is also supported by the record.
Unlike the above physical impairments, the ALJ found that Plaintiff’s cardiac impairment
was non-severe. (See Tr. 22-23.) This conclusion, too, is supported by the record. The record
demonstrates that Plaintiff underwent an echocardiogram on November 9, 2011, which showed a
mild mitral and tricuspid valve regurgitation. (See Tr. 328-29.) Another echocardiogram on
January 12, 2012 showed sinus bradycardia. (See Tr. 332.) Despite these findings, notes from
May 2012 revealed a normal echocardiogram, with normal rate, regular rhythm, and no murmur.

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Although obesity is no longer considered to be per se disabling under the Regulations, see Revised Medical
Criteria for Determination of Disability, Endocrine System and Related Criteria, 64 Fed. Reg. 46122, 46122 (Aug.
24, 1999) (explaining that “obesity” was removed from the listing of impairments), the ALJ should nevertheless
address, as she did here, whether a claimant’s obesity can be considered a severe impairment. See Social Security
Ruling 02-1p, 67 Fed. Reg. 57,859, 57,861-62 (Sept. 12, 2002) (“[W]e will find that obesity is a ‘severe’ impairment
when, alone or in combination with another medically determinable physical or mental impairment(s), it
significantly limits an individual’s physical or mental ability to do basic work.”).

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(See Tr. 459-60.) While Plaintiff complained of chest pain during this May 2012 doctor’s visit,
the notes explained that the chest pain was likely musculoskeletal or related to gastroesophageal
reflux disease, and was not cardiac in nature. (See Tr. 460.) Thus, the ALJ’s finding regarding
this impairment is supported by the record.
B. The ALJ’s Determination as to Whether Plaintiff’s Severe Impairments Met
or Equaled Any Listed Impairment Is Supported by Substantial Evidence
The ALJ’s determination that Plaintiff’s severe physical impairments did not meet or
equal any listed impairment is supported by the record. Specifically, the ALJ found that
Plaintiff’s orthopedic impairments did not meet listing 1.02A, major dysfunction of joint,
because Plaintiff did “not exhibit[ ] an inability to ambulate effectively.” 6 (See Tr. 24.) The ALJ
further noted that, although Plaintiff currently used a cane, during a September 2012 exam, Dr.
Thukral found she had a normal gait without it. (See id.) Dr. Thukral, therefore, opined that
Plaintiff did not need the cane. (See Tr. 359.) Furthermore, there was no evidence that a doctor
prescribed a cane to Plaintiff; rather, Plaintiff reported that she bought a cane for herself. (See
Tr. 359.)
The ALJ also found that Plaintiff’s lumbar spine impairment did not meet listing 1.04A,
disorders of the spine, because Plaintiff did not exhibit the necessary neurological deficits in her
lower extremities. (See Tr. 24, 591.) Notably, Dr. Emmanuel Valery found in April 2014 and
July 2014 that Plaintiff had normal strength, no tenderness, no swelling or deformity, a normal
neurological exam, but limited range of motion in both hips and the lower back due to pain. (See

6

Section 1.00B2b defines “inability to ambulate effectively” as “an extreme limitation of the ability to walk; i.e., an
impairment that interferes very seriously with the individual’s ability to independently initiate, sustain or complete
activities.” See 20 C.F.R. Pt. 404, Subpt. P, Section 1.00B2(b)(1). Examples of an inability to ambulate effectively
include “the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at
a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to
carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a
reasonable pace with the use of a single hand rail.” See id at 1.00B2(b)(2).

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Tr. 580-81, 590-91.) As for Plaintiff’s obesity, the ALJ noted that there is no longer a separate
listing for obesity. (See Tr. 24.) However, the ALJ went on to consider Plaintiff’s obesity in
conjunction with the listings for major dysfunction of a joint and disorders of the spine. (See id.)
The ALJ determined that Plaintiff’s obesity did not appear to further impact her conditions so as
to medically equal a listing because Plaintiff maintained normal strength and normal gait in her
lower extremities. (See id.) These findings are supported by the record.
C. Plaintiff’s RFC: Physical Impairments
With regard to Plaintiff’s RFC, the ALJ determined that Plaintiff could perform “a wide
range of sedentary work as defined in 20 CFR 416.967(a),” and that “in addition to the exertional
requirements, she can occasionally climb, stoop, crouch, and kneel, but can never crawl; and can
only occasionally push and/or pull with both legs.” (Tr. 24.) In reaching her conclusion, the
ALJ considered and weighed the opinion of consultative examiner Dr. Thukral, the opinion of
Plaintiff’s orthopedic surgeon, Dr. Ronald Chase, and Plaintiff’s own reporting and testimony
regarding her symptoms.
In weighing opinion testimony, “[t]he opinion of a treating physician is given controlling
weight if it is well supported by medical findings and not inconsistent with other substantial
evidence.” Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999) (citation omitted); see also 20
C.F.R. § 416.927(c)(2) (assigning “controlling weight” to treating sources’ “well-supported”
opinions reached by “medically acceptable clinical and laboratory diagnostic techniques” that are
“not inconsistent” with other substantial evidence of impairments). If controlling weight is not
assigned to a treating physician’s opinion, the ALJ must provide “good reasons” for failing to
credit that opinion. See Snell, 177 F.3d at 133 (citing 20 C.F.R. § 404.1527(d)(2)). Additionally,
in assigning less weight to a treating physician, the ALJ must consider several factors, including,

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inter alia: (1) the length of the treatment relationship and the frequency of examination; (2) the
nature and extent of the treatment relationship; (3) the relevant evidence, particularly medical
signs and laboratory findings, supporting the opinion; (4) the consistency of the opinion with the
record as a whole; and (5) whether the physician is a specialist in the area covering the particular
medical issues. See Burgess, 537 F.3d at 129 (citing 20 C.F.R. § 404.1527); see also 20 C.F.R. §
416.92(c)(2) (listing same factors).
Here, one of Plaintiff’s treating physicians, Dr. Chase, opined that, based on Plaintiff’s
diagnosis of degenerative arthritis of the lumbar spine with disc disease and degenerative
arthritis of the bilateral hips and knees, Plaintiff could do the following: occasional lifting or
carrying up to ten pounds; standing or walking for two hours in an eight hour day, ten minutes at
a time; sitting for two hours in an eight hour day, fifteen minutes at a time; no postural activities,
including no climbing, bending, balancing, stooping, crouching, kneeling, or crawling; no
pushing or pulling; occasional reaching (including overhead); constant feeling and handling; and
no exposure to moving machinery or temperature extremes. (See Tr. 618-19.) The ALJ assigned
“little weight” to Dr. Chase’s opinion because “[t]hese limitations are out of proportion to the
objective evidence of record”—“particularly the restrictions on upper extremity functioning bear
no relation to any clinical examination findings or diagnostic imaging reports in this record.”
(Tr. 28.)
In deciding to afford “little weight” to Dr. Chase’s opinion, the ALJ did not consider all
of the factors required under 20 C.F.R. § 416.927. Indeed, the only factor the ALJ arguably
considered was the consistency of Dr. Chase’s opinion with the rest of the record. (See Tr. 28.)
The ALJ did not consider Dr. Chase’s specialization in orthopedics, the nature of the treatment
relationship, or the frequency of examination. Cf. Cabrera v. Comm’r of Soc. Sec., No. 16 Civ.

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4311, 2017 WL 3686760, at *3 (S.D.N.Y. Aug. 25, 2017) (remanding case where ALJ failed to
consider factors required under 20 C.F.R. § 404.1527, which are identical under § 416.927);
Giambrone v. Colvin, No. 15-CV-05882, 2017 WL 1194650, at *16 (E.D.N.Y. Apr. 3, 2017)
(remanding case where ALJ failed to address the required factors, failed to “comprehensively set
forth [her] reasons for the weight assigned to [the] treating physician’s opinion,” and did not give
good reasons for her decision to give the treating physician’s assessment little weight).
Further, the explanation proffered by the ALJ for discounting Dr. Chase’s opinion cannot
be said to be a “good reason,” as it is little more than a conclusion. To be consistent with the
mandates of 20 C.F.R. § 416.927, the ALJ must articulate a “good reason,” and, here, she did
not. Cf. Rugless v. Comm’r of Soc. Sec., 548 F. App’x 698, 700 (2d Cir. 2013) (summary
opinion) (remanding case where ALJ only provided conclusory explanation for finding treating
physician’s opinion inconsistent with the record); Morgan v. Colvin, 592 F. App’x 49, 50 (2d
Cir. 2015) (summary opinion) (remanding case and finding the ALJ “erred in failing to explain
adequately his reasons for the minimal weight given” where the ALJ assigned little weight to
treating physician’s opinion because it was “not supported by the overall medical record”). The
Second Circuit has “consistently held that the failure to provide good reasons for not crediting
the opinion of a claimant’s treating physician is a ground for remand.” Sanders v. Comm’r of
Soc. Sec., 506 Fed. Appx. 74, 77 (2d Cir. 2012) (citations omitted). Accordingly, remand is
warranted here. On remand, the ALJ should revisit her decision not to accord controlling weight

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to Dr. Chase as a treating physician. To the extent she decides not to accord controlling weight
to his opinion, the ALJ must set out good reasons for not doing so.
II.

The ALJ’s Determination as to Plaintiff’s Mental Impairment Is Not Supported by
the Record
The ALJ has the affirmative obligation to develop the administrative record. Burgess,

537 F.3d at 128 (quoting Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999)); see also Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996) (observing that this obligation exists “[b]ecause a hearing
on disability benefits is a non-adversarial proceeding”). This duty exists even when the claimant
is represented by counsel. Perez, 77 F.3d at 47 (citation omitted). “The duty to develop the
record is particularly important where an applicant alleges [s]he is suffering from a mental
illness[], due to the difficulty in determining whether these individuals will be able to adapt to
the demands or ‘stress’ of the workplace.” Velez v. Colvin, No. 14 Civ. 3084, 2017 WL
1831103, at *15 (S.D.N.Y. May 5, 2017) (quoting Hidalgo v. Colvin, No. 12CV9009, 2014 WL
2884018, at *4 (S.D.N. Y, June 25, 2014)). Notably, whether the ALJ failed to develop the
record adequately must be addressed as a threshold issue. See Echevarria v. Sec’y of Health &
Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (“[I]n deciding whether the Secretary’s
conclusions on [a claimant’s disabilities are] supported by substantial evidence . . . we must first
satisfy ourselves that the claimant has had a full hearing under the Secretary’s regulations and in
accordance with the beneficent purposes of the Act” (citations and internal quotation marks
omitted)); see also Downes v. Colvin, No. 14-CV-7147, 2015 WL 4481088, at *9 (S.D.N.Y. July
22, 2015) (stating that whether the ALJ fully developed the record is a “threshold question”).
Here, the ALJ determined that Plaintiff’s dysthymic disorder did not constitute a severe
impairment. Specifically, the ALJ found, “[Plaintiff’s dysthymic disorder] does not cause more
than minimal limitation in the claimant’s ability to perform basic mental work activities, and is,
14

therefore . . . deemed non-severe.” (Tr. 23.) Significantly, there is only one document in the
record regarding Plaintiff’s mental impairment: a summary and medical source statement from
Plaintiff’s psychotherapist, Dr. Denis Blumberg. (See Tr. 620-22.) According to the summary,
Plaintiff’s diagnosis “represent[ed] significant anxiety and mood disorders of which [Plaintiff]
[was] experiencing symptoms of extreme distress, poor appetite, insomnia, loss of self-esteem,
irritability and mood swings which [were] causing significant clinical impairment in the areas of
social emotion and physical functioning.” (Tr. 620.) The summary further states that Plaintiff
had been attending psychotheraphy sessions once a week since October 2012. (See Tr. 620.)
Additionally, Dr. Blumberg’s medical source statement provides that Plaintiff had “fair”
functioning, (see Tr. 621-22), which the ALJ interpreted as meaning “moderate,” in several
potential work-related activities. (See Tr. 29).
At the hearing, the ALJ acknowledged apparent deficiencies in the record regarding this
impairment, but failed to fulfill her duty to develop the record. Plaintiff’s attorney stated at the
hearing that Plaintiff was being treated by Dr. Blumberg for dysthymic disorder. (See Tr. 62.)
The ALJ correctly noted that the record contained only a medical source statement, accompanied
by a brief treatment statement. (See Tr. 64-68.). Absent were any treatment records from Dr.
Blumberg. (See Tr. 64-68.) Ultimately, the ALJ assigned “little weight” to Dr. Blumberg’s
opinion, stating that “Mr. Blumberg declined to submit his own progress notes, and when the
undersigned offered during the hearing to subpoena these notes, the claimant’s representative
stated that this was not necessary.” (Tr. 29.) At the hearing, the ALJ requested that Plaintiff
“submit treatment records so that [she] can have something that supports what [Dr. Blumberg]
says” and further stated that Plaintiff “need[s] . . . something supporting a conclusionary [sic]
record.” (Tr. 65, 67.) That Plaintiff’s attorney requested, but did not receive, additional

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documents from Dr. Blumberg does not obviate the ALJ’s independent duty to develop the
record. This is true even where, as here, Plaintiff’s attorney can be said to have informed the
ALJ that it was unnecessary to request the missing records. See Corona v. Berryhill, No. 15-CV7117, 2017 WL 1133341, at *16 (E.D.N.Y. Mar. 24, 2017) (“The ALJ’s discussion on the record
with Plaintiff’s counsel regarding [a doctor’s] treatment notes and her decision to leave the
record open for thirty days for the submission of his records were not sufficient to satisfy her
duty because the ALJ took no further action to ensure that the record was complete, even though
the ALJ was well aware that the record request had been outstanding since September 24, 2014,
over two months before the hearing.” (citations omitted)); see generally Pratts v. Chater, 94 F.3d
34, 37 (2d Cir. 1996) (“It is the rule in our circuit that ‘the ALJ, unlike a judge in a trial, must
[her]self affirmatively develop the record’ in light of ‘the essentially non-adversarial nature of a
benefits proceeding.’” (quoting Echevarria, 685 F.2d at 755)). 7
The ALJ should have sought treatment notes from Dr. Blumberg before making an
assessment as to the severity of Plaintiff’s dysthymic disorder and whether it significantly
affected her work-related abilities and RFC. See Atkinson v. Barnhart, 87 F. App’x 766, 768 (2d
Cir. 2004) (remanding case because the ALJ did not adequately fulfill his duty to develop the
record and noting that the ALJ should have sought an evaluation and treatment notes before
assessing the severity of the plaintiff’s impairments). Her failure to do so warrants remand.

7

Defendant argues that as a psychotherapist, Dr. Blumberg is not an “acceptable medical source.” (Def. Mem.
Supp. Mot. J. Pleadings 22, ECF 20.) However, psychologists and psychotherapists are considered “other sources”
who can provide evidence of disability. Baldwin v. Astrue, 2009 WL 4931363, at *3, *5-6, 24 (S.D.N.Y. Dec. 21,
2009) (analyzing testimony of plaintiff’s psychotherapist as a treating medical source); Matejka v. Barnhart, 386 F.
Supp. 2d 198, 209 (W.D.N.Y. 2005) (remanding decision denying disability benefits where “there [was] no medical
evidence to contradict the opinion of the treating psychotherapist”).

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CONCLUSION
For the foregoing reasons, Defendant’s motion for judgment on the pleadings is denied,
and the Commissioner’s decision is remanded for further proceedings and additional findings
consistent with this Order. The Clerk of Court is respectfully requested to mail a copy of this
Memorandum and Order to pro se Plaintiff and close this case.
SO ORDERED:
/s/LDH
LASHANN DEARCY HALL
United States District Judge
Dated: Brooklyn, New York
September 30, 2017

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