Griffel v. Colvin

Filing 17

MEMORANDUM & ORDER granting 10 Plaintiff's Motion for Judgment on the Pleadings; denying 13 Commissioner's Motion for Judgment on the Pleadings. For the reasons discussed in the attached Memorandum and Order, Plaintiff's motion fo r judgment on the pleadings is granted and the Commissioner's cross-motion for judgment on the pleadings is denied. The Commissioner's decision is vacated, and this action is remanded for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of Court is directed to close this case. Ordered by Judge Margo K. Brodie on 9/26/2017. (Hawkins, Salah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------ISSAC GRIFFEL,
Plaintiff,

MEMORANDUM & ORDER
16-CV-1772 (MKB)

v.
NANCY A. BERRYHILL1
Acting Commissioner, Social Security
Administration,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Issac Griffel commenced the above-captioned action pursuant to 42 U.S.C.
§ 405(g), seeking review of a final decision of the Commissioner of Social Security (the
“Commissioner”) denying his claim for social security disability insurance under the Social
Security Act (the “SSA”). (Compl., Docket Entry No. 1.) Plaintiff moves for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that
Administrative Law Judge Mark Solomon (the “ALJ”) erred by failing to give controlling weight
to the opinions of Plaintiff’s treating physician in determining Plaintiff’s residual functional
capacity (“RFC”). (Pl. Mot. for J. on the Pleadings (“Pl. Mot.”), Docket Entry No. 10; Pl. Mem.
of Law in Supp. of Pl. Mot. (“Pl. Mem.”), Docket Entry No. 10-1.) The Commissioner crossmoves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure, arguing that substantial evidence supports the ALJ’s decision that Plaintiff was not

1

Pursuant to Fed. R. Civ. P. 25(d), the caption has been updated to reflect the new Acting
Commissioner of Social Security, Nancy A. Berryhill, who took office on January 23, 2017.

disabled. (Comm’r Cross-Mot. for J. on the Pleadings (“Comm’r Mot.”), Docket Entry No. 13;
Comm’r Mem. of Law in Supp. of Comm’r Mot. (“Comm’r Mem.”), Docket Entry No. 14.) For
the reasons discussed below, the Court grants Plaintiff’s motion for judgment on the pleadings,
denies the Commissioner’s cross-motion for judgment on the pleadings and remands the case for
further proceedings consistent with this Memorandum and Order.
I.

Background
Plaintiff is currently sixty-four years old. (Certified Admin. Record (“R.”) 30, Docket

Entry No. 9.) Plaintiff has a high school diploma. (R. 30.) Prior to 1996, Plaintiff worked as a
diamond retailer, and from 1996 to 2011, Plaintiff worked as insurance agent. (R. 32, 37–38,
182–83, 219.) In 1997, Plaintiff began treatment with Yehuda Nir, M.D., a psychiatrist, because
Plaintiff believed he was suffering from depression and anxiety. (R. 38, 65, 219–20.) In 2009,
Plaintiff stopped treatment with Dr. Nir and began treatment with Mikhail Pilman, M.D., for his
depression and anxiety. (R. 159, 182, 219–20.) Due to Plaintiff’s depression and anxiety,
Plaintiff stopped working in March of 2011. (R. 31–32, 180.)
On February 7, 2013, Plaintiff applied for social security disability insurance, asserting
that he had been disabled since March 31, 2011, due to depression, anxiety, panic attacks and
insomnia. (R. 53, 139.) A disability adjudicator issued a report on May 30, 2013, denying
Plaintiff’s application. (R. 72–82.) Plaintiff requested a hearing before an administrative law
judge, which hearing occurred before the ALJ on December 10, 2014. (R. 26–52, 89.) After the
hearing, the ALJ found that Plaintiff was not disabled. (R. 11–22.) Plaintiff filed an appeal
challenging the ALJ’s decision. (R. 8.) The Appeals Council declined review, and Plaintiff filed
a timely appeal with the Court. (R. 1–3; Compl.)

2

a.

Hearing before the ALJ

On December 10, 2014, the ALJ held a hearing regarding Plaintiff’s application for social
security benefits. (R. 26–52.) The ALJ heard testimony from Plaintiff and Miriam Green, a
vocational expert. (R. 26–52.) Plaintiff appeared at the hearing with counsel. (R. 28.)
i.

Plaintiff’s testimony

Plaintiff testified that he last worked in 2011 as an insurance agent, which involved
seeking potential clients to purchase insurance coverage. (R. 31–32.) Before working as an
insurance agent, Plaintiff was self-employed as a diamond retailer, but he was forced to close his
business because people “stole a lot of money” from him. (R. 37.) Plaintiff stopped working as
an insurance agent because his “depression [and] anxiety got worse” and he “was unable to
continue looking for clients.” (R. 32, 37.) Plaintiff’s depression and anxiety worsened in 2011
because he was having issues with his landlord. (R. 33, 39.) When Plaintiff’s anxiety caused
panic attacks, instead of going to the hospital, Plaintiff would lie in bed to relax. (R. 34.)
Plaintiff’s depression and anxiety caused fatigue and insomnia, and as a result, Plaintiff slept at
random times and for random intervals. (R. 40, 42.)
At the time of the hearing, Plaintiff lived with his wife. (R. 33.) Plaintiff’s wife handled
all of the household chores, which she did even before Plaintiff began suffering from depression
and anxiety. (R. 35.) Plaintiff cared for his personal hygiene. (R. 34–35.) Plaintiff could travel
via public transportation, but only during times when there were not many other people using
public transportation. (R. 33–34.) Plaintiff tried to read the newspaper daily, but would get
bored after a few minutes. (R. 36.) A few times a week, Plaintiff attended religious service at a
synagogue. (R. 35–36.) Plaintiff only spent time with the members of the synagogue at
religious services and did not have any friends that he spent time with otherwise. (R. 43–44.)
Plaintiff often arrived late to services at the synagogue because he was unable to rest well due to
3

his insomnia and therefore could not get out of bed. (R. 36–37.) Plaintiff’s insomnia also made
it difficult for Plaintiff to maintain a schedule or arrive on time for appointments. (R. 42.)
Plaintiff felt no joy or pleasure with anything in his life, including spending time with his
family, celebrating religious holidays and going to synagogue. (R. 34, 36–38, 40, 42–43, 45–47.)
Plaintiff always felt too depressed or anxious to attend weddings and family gatherings. (R. 38,
43.) Plaintiff’s depression was exacerbated in 2012, when one of his grandchildren passed away
due to cancer. (R. 40–41.) In addition, being unable to work due to depression and anxiety
worsened Plaintiff’s condition. (R. 45.) Plaintiff did not suffer from delusions, but occasionally
had suicidal thoughts because of the effect his depression and anxiety had on his life. (R. 43–
44.) Plaintiff’s medication lessened the gravity of the depression and anxiety, but did not
eliminate their effects. (R. 43.) Plaintiff believed he could not work because being around other
people increases his anxiety and if he were to be criticized by a coworker or supervisor, he would
suffer a panic attack. (R. 46.)
ii.

Vocational expert testimony

Green, the vocational expert, testified at the hearing after reviewing the evidence in
Plaintiff’s record. (R. 47–48.) The ALJ asked Green to assume a hypothetical claimant for
disability benefits with the following limitations:
no exertional limitations. He can remember, understand, and carry
out simple instructions, make simple work-related decisions,
maintain a regular schedule, maintain attention and concentration
for rote work, and can perform a low-stress job, defined as one with
no close interpersonal contact with the general public and not
requiring high[-]volume or assembly-line production quotas.
(R. 48.) The ALJ asked Green what jobs such a person could perform. (R. 48.) Green testified
that such a person could perform “medium exertional level” jobs as a “laundry worker,” “hand
packager” and “linen room attendant.” (R. 48–49.) The ALJ posed additional limitations for the

4

hypothetical claimant and asked Green for her opinion on available jobs in the economy. (R. 50–
51.) The ALJ asked what if such a person were “expected to be off task more than [ten] percent
of” the work day, and Green testified that there are no jobs available for such a person. (R. 50.)
The ALJ asked what if such a person were “unable to handle stress at any level,” and Green
testified that there were no jobs available for such a person. (R. 50.) The ALJ asked what if
such a person “could [] have no close interpersonal contact at all with either supervisors,
coworkers, or the general public,” and Green testified that there were no jobs available for such a
person. (R. 50–51.)
b.

Plaintiff’s impairments
i.

Dr. Mikhail Pilman

In December of 2009, Plaintiff met with Dr. Pilman for an intake psychiatric
examination. (R. 219.) Plaintiff complained of depressed mood, feelings of worthlessness,
decreased energy, restlessness, difficulty concentrating and poor memory. (R. 219, 230.)
Plaintiff reported that he started receiving psychiatric treatment in 1997, after he closed his
diamond business, because he “lost [his] whole self-esteem.” (R. 219.) Plaintiff reported that he
was taking medication for his depression and anxiety. (R. 224.) Plaintiff also reported having
“passive suicidal thoughts,” such as dying from being hit by a car, but had no intention to
commit suicide. (R. 220.) Dr. Pilman noted that Plaintiff had a withdrawn demeanor, average
intellectual functioning, fair concentration, blunted affect, depressed and anxious mood, and
issues with his sleep and energy level. (R. 227, 232.) Dr. Pilman opined that Plaintiff’s
depression and anxiety were due to financial and familial problems. (R. 229.) Dr. Pilman
diagnosed Plaintiff with major depressive disorder and issued a rule-out diagnosis for anxiety

5

disorder.2 (R. 224.) Dr. Pilman prescribed Plaintiff medication to treat his depression, anxiety
and insomnia. (R. 233.)
From January of 2010 to October of 2014, Plaintiff attended weekly psychotherapy
sessions with Howard Gold, L.M.S.W., a social worker in Dr. Pilman’s office, and monthly
psychiatric visits with Dr. Pilman. (R. 215–18, 235–53, 326–89, 396–417.) The notes from the
visits are predominantly the same. (See R. 215–18, 235–53, 326–89, 396–417.) Dr. Pilman’s
notes reflect that Plaintiff was moderately or markedly depressed and suffered from constant
anxiety due to financial and familial problems. (See, e.g., R. 215, 326.) Dr. Pilman noted that
Plaintiff had a sad and anxious mood, constricted affect, and a memory that was “[within] normal
limits for [his] age.” (See, e.g., R. 215, 326.)
In May of 2012, Dr. Pilman noted that Plaintiff was progressing because he was starting
to help his wife with her handbag business two days a week. (R. 361.) Dr. Pilman always
refilled Plaintiff’s prescriptions for medication to treat his depression and anxiety. (See, e.g.,
R. 326.) Dr. Pilman prescribed Plaintiff medication to treat his insomnia only for April of 2013.
(R. 339–41.)
In November of 2014, Dr. Pilman completed a psychiatric assessment related to
Plaintiff’s application for disability benefits. (R. 391–95.) Dr. Pilman noted that he had been
treating Plaintiff since December of 2009, and Plaintiff visited his office weekly for
psychotherapy treatment and monthly for psychiatric treatment. (R. 391.) Dr. Pilman further
noted that Plaintiff had major depressive disorder and generalized anxiety disorder. (R. 391.)
Dr. Pilman opined that Plaintiff had a “markedly depressed” mood, “constant high-level anxiety,

2

A “rule-out” diagnosis means that the physician is unable to make a medical
determination based on the evidence currently available to him or her. See Talavera v. Astrue,
697 F.3d 145, 150 (2d Cir. 2012).
6

excessive worrying,” “racing anxious thoughts,” “low energy” and “difficulty concentrating.”
(R. 391.) Dr. Pilman noted that Plaintiff had prescriptions for medications to treat his depression
and anxiety, and opined that “despite taking high doses of antidepressants and tranquilizers,
[Plaintiff’s] symptoms remain[ed] pronounced and significantly interfere[d] with [Plaintiff’s]
functional capacities.” (R. 391.) Dr. Pilman also opined that Plaintiff’s disorders prevented
Plaintiff from “keep[ing] a permanent job” since approximately 2004. (R. 394.)
The assessment form asked Dr. Pilman to select whether Plaintiff’s disorders caused no,
“mild,” “marked” or “extreme” limitations that affected Plaintiff’s ability to complete activities
of daily living, function socially and concentrate.3 (R. 392.) Dr. Pilman opined that Plaintiff had
“marked” limitations in performing activities of daily living such as “cleaning, shopping,
cooking, taking public transportation, paying bills, maintaining a residence, caring for personal
hygiene, [and] using telephones”; “marked” limitations in social functioning, which is “the
capacity to interact appropriately and communicate effectively with other individuals”; and
“extreme” limitations in “concentration, persistence or pace, [which] result[ed] in [a] failure to
complete tasks in a timely manner.” (R. 392, 394–95.) Dr. Pilman further opined that Plaintiff’s
disorders qualified as a “residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the environment would be
predicted to cause [Plaintiff] to decompensate.” (R. 393.) Dr. Pilman also opined that Plaintiff
could not “make occupational adjustments” such as understanding, carrying out and
remembering instructions, responding appropriately to criticism from a supervisor or coworker

3

According to the assessment form, a “mild” limitation is one that “does not seriously
affect ability to function,” a “marked” limitation “seriously interferes with the ability to function
independently, appropriately and/or effectively,” and an “extreme” limitation is “more severe
than marked.” (R. 392.)
7

and handling customary work pressures because Plaintiff was “unlikely [to be able] to handle
work pressures.” (R. 393.) Finally, Dr. Pilman opined that if Plaintiff were employed,
Plaintiff’s disorders would cause Plaintiff to miss work more than four days per month. (R. 393.)
Dr. Pilman’s prognosis for Plaintiff’s disorders was “guarded.”4 (R. 391.)
ii.

Dr. Josif Sholomon

In August of 2010, Plaintiff began treatment with Josif Sholomon, M.D., for his primary
medical needs. (R. 206.) Plaintiff visited Dr. Sholomon once every three months between
August of 2010 and March of 2013.5 (R. 206.) In March of 2013, Dr. Sholomon completed a
report pertaining to Plaintiff’s application for disability benefits. (R. 202–06.) Dr. Sholomon
noted that Plaintiff had diagnoses for depression, anxiety and insomnia. (R. 205–06.) As to
Plaintiff’s physical ability to perform work-related activities, Dr. Sholomon opined that Plaintiff
did not have any physical limitations. (R. 202.) Dr. Sholomon stated that Plaintiff suffers
fatigue as a result of his depression and needs to rest for “several hours” before he can engage in
any activity again. (R. 203.) Dr. Sholomon noted that Plaintiff had prescriptions to treat his
depression, anxiety and insomnia and opined that he was “responding well to medication.”
(R. 205.)
iii. Dr. Johanina McCormick — examining consultative source opinion
After Plaintiff applied for social security benefits, Johanina McCormick, Ph.D., examined
Plaintiff to assess his limitations as they existed in May of 2013. (R. 208–11.) The examination

4

“Guarded prognosis refers to a prognosis given by a physician [expressing that] the
outcome of a patient’s illness is in doubt.” Taber’s Cylcopedic Medical Dictionary, 914 (21st ed.
2009).
5

The treatment notes and reports from Plaintiff’s visits with Dr. Sholomon reflect
physical sicknesses Plaintiff suffered and treatment Plaintiff was provided. (R. 255–324.)
Because Plaintiff’s physical ailments are not the basis for his disability application, (see R. 163–
73), the Court does not recount Dr. Sholomon’s treatment notes in this Memorandum and Order.
8

location was ten miles away from Plaintiff’s home and Plaintiff traveled to the examination by
“car service.” (R. 208.) Plaintiff reported that he lived with his wife in an apartment. (R. 208.)
Plaintiff also reported that he had a high school education, “last worked two years ago as an
insurance agent,” and “has not been able to work due to depression and anxiety.” (R. 208.)
Dr. McCormick noted that Plaintiff had been receiving psychiatric treatment with Dr. Pilman
since 2009 and visited Dr. Pilman once a month. (R. 208.) Dr. McCormick also noted that
Plaintiff was taking medications to treat his depression, anxiety and insomnia. (R. 208.)
Plaintiff reported that he awoke from sleep four times per night and suffered from
“dysphoric6 mood due to depressi[on],” “excessive apprehension and worry, restlessness, muscle
tension,” “short-term memory deficits” and “concentration deficits,” as well as “palpitations,
sweating [and] chest pains” during panic attacks. (R. 208–09.) Plaintiff reported that his
depression and anxiety stemmed from his familial and financial issues. (R. 208–09.)
Dr. McCormick conducted a mental status examination of Plaintiff, which revealed an
“adequate” “manner of relating [and] social skills,” “poor[] groom[ing],” “appropriate” affect,
“dysthymic”7 mood, “mildly impaired” attention and concentration “due to emotional distress
resultant to anxiety,” “mildly impaired” recent and remote memory skills “due to emotional
distress resultant to anxiety, depression and limited intellectual functioning” and “below
average” cognitive functioning. (R. 209–10.) Dr. McCormick opined that:

6

Dysphoria is defined as “as state of feeling unwell or unhappy.” Dysphoria Definition,
Merriam-Webster.com, https://www.merriam-webster.com/dictionary/dysphoria#medicalDiction
ary (last visited Sept. [Day], 2017).
7

Dysthymia is defined as “mildly depressed or irritable mood often accompanying by
other symptoms [such] as eating and sleeping disturbances, fatigue, and poor self-esteem.”
Dysthymia Definition, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/dyst
hymia#medicalDictionary (last visited Sept. [Day], 2017).
9

[Plaintiff] can follow and understand simple directions and
instructions. He can perform simple tasks independently. He is
mildly limited in maintaining attention and concentration. He can
maintain a regular schedule. He can learn new tasks with help. He
is mildly limited in performing complex tasks independently, he
needs supervision. He can make appropriate decisions. He can
relate adequately with others. He is markedly limited in
appropriately dealing with stress. The difficulties are caused by
symptoms of depression, anxiety, and short-term memory deficits.
The results of the examination appear to be consistent with
psychiatric problems, and this may significantly interfere with
[Plaintiff’s] ability to function on a daily basis.
(R. 210–11.) Dr. McCormick diagnosed Plaintiff with depressive disorder, not otherwise
specified, and anxiety disorder, not otherwise specified. (R. 211.) Dr. McCormick’s prognosis
for Plaintiff’s disorders was fair. (R. 211.)
iv. Dr. S. Hou — non-examining consultative source opinion
In May of 2013, Dr. S. Hou,8 a medical consultant for the Commissioner, reviewed the
documents in Plaintiff’s disability-benefits-application file and issued a report with his findings
regarding Plaintiff’s limitations. (R. 19, 53–61.) Dr. Hou opined that Plaintiff’s disorders, alone
or in combination, did not meet or medically equal a disorder in Appendix 1 of the Social
Security Regulations. (R. 56.)
Dr. Hou’s opinions on Plaintiff’s limitations were as follows. Regarding understanding
and memory, Plaintiff had no significant limitations in his “ability to remember locations and
work-like procedures” and “understand and remember very short and simple instructions”; and
moderate limitations in “his ability to understand and remember detailed instructions.” (R. 58.)
Regarding concentration and persistence, Plaintiff had no significant limitations in his “ability to
carry out very short and simple instructions,” “work in coordination with or in proximity to

8

The record does not contain Dr. Hou’s full name or the discipline of his doctoral

degree.
10

others without being distracted by them” and “make simple work-related decisions”; and
moderate limitations in his “ability to carry out detailed instructions,” “maintain concentration
for extended periods,” “sustain an ordinary routine without special supervision,” “perform
activities within a schedule, maintain regular attendance, [] be punctual within customary
tolerances,” “complete a normal workday and workweek without interruptions from
psychologically based symptoms and [] perform at a consistent pace without an unreasonable
number and length of rest periods.” (R. 58–59.) Regarding social interaction, Plaintiff had no
significant limitations in his “ability to ask simple questions or request assistance,” “accept
instructions and respond appropriately to criticism from supervisors,” “get along with coworkers
or peers without distracting them or exhibiting behavioral extremes,” “maintain socially
appropriate behavior and [] adhere to basic standards of neatness and cleanliness”; and moderate
limitations in his “ability to interact appropriately with the general public.” (R. 59.) Regarding
adaptation, Plaintiff had no significant limitations in his “ability to be aware of normal hazards
and take appropriate precautions,” “travel in unfamiliar places or use public transportation” and
“set realistic goals or make plans independently of others”; and moderate limitations in his
“ability to respond appropriately to changes in the work setting.” (R. 59–60.) Dr. Hou
completed the report relying on a record containing Dr. Pilman’s treatment notes, but not his
assessment, and Dr. McCormick’s report. (R. 54–56.)
c.

The ALJ’s decision

The ALJ issued his decision on December 29, 2014, finding that Plaintiff was not
disabled. (R. 11–22.) The ALJ applied the five-step analysis for determining whether an
individual is disabled and may receive social security benefits. (R. 11–22.) At step one, the ALJ
found that Plaintiff was not working and had not engaged in substantial gainful employment
since the alleged onset of disability date. (R. 16.) At step two, the ALJ found that Plaintiff had
11

severe impairments of major depressive disorder and generalized anxiety disorder. (R. 16.) At
step three, the ALJ found that the impairments, individually or combined, failed to meet or equal
the severity of an impairment listed in Appendix 1 of the Social Security Regulations. (R. 16–
17.)
At step four, the ALJ found that:
[Plaintiff] has the [RFC] to perform a full range of work at all
exertional levels with the following non[-]exertional limitations: He
can remember, understand, and carry out simple instructions.
He can make simple work[-]related decisions. He can maintain a
regular schedule. He can maintain attention and concentration for
rote work and perform a low stress job, which is defined as no close
interpersonal contact with the general public and not requiring highvolume or assembly-line production quotas.
(R. 17–18.) In making the step-four RFC determination, the ALJ recounted much of the
evidence and then assigned “partial weight” to all of the physicians’ opinions. (R. 19–20.) The
ALJ found Plaintiff’s testimony “not entirely credible.” (R. 18.) At step five, the ALJ found
that, based on Plaintiff’s RFC, Plaintiff could not perform his past relevant work, but could
perform a significant number of jobs that existed in the national economy as testified to by
vocational expert Green. (R. 21.)
II. Discussion
a.

Standard of review

“In reviewing a final decision of the Commissioner, a district court must determine
whether the correct legal standards were applied and whether substantial evidence supports the
decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), as amended on reh’g in part,
416 F.3d 101 (2d Cir. 2005); see also Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per
curiam). “Substantial evidence is ‘more than a mere scintilla’ and ‘means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” Lesterhuis v. Colvin,

12

805 F.3d 83, 87 (2d Cir. 2015) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see
also McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (same). Once an ALJ finds facts, the
court “can reject those facts only if a reasonable factfinder would have to conclude otherwise.”
Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) (citations and internal quotation
marks omitted omitted). In deciding whether substantial evidence exists, the court “defer[s] to
the Commissioner’s resolution of conflicting evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d
118, 122 (2d Cir. 2012); McIntyre, 758 F.3d at 149 (“If evidence is susceptible to more than one
rational interpretation, the Commissioner’s conclusion must be upheld.”). The Commissioner’s
factual findings “must be given conclusive effect so long as they are supported by substantial
evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citation and internal quotations
omitted). If, however, the Commissioner’s decision is not supported by substantial evidence or
is based on legal error, a court may set aside the decision of the Commissioner. Box v. Colvin,
3 F. Supp. 3d 27, 41 (E.D.N.Y. 2014); see also Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.
1998). “In making such determinations, courts should be mindful that ‘[t]he Social Security Act
is a remedial statute which must be ‘liberally applied’; its intent is inclusion rather than
exclusion.’” McCall v. Astrue, No. 05-CV-2042, 2008 WL 5378121, at *8 (S.D.N.Y. Dec. 23,
2008) (alteration in original) (quoting Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983)).
b.

Availability of benefits

Federal disability insurance benefits are available to individuals who are “disabled”
within the meaning of the SSA. To be considered disabled under the SSA, a plaintiff must
establish his or her inability “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The impairment must be of “such severity
13

that he is not only unable to do his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful work which exists in the
national economy.” Id. §§ 423(d)(2)(A), 1382c(a)(3)(B). The Commissioner has promulgated a
five-step analysis for evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920. The Second
Circuit has described the steps as follows:
The first step of this process requires the [Commissioner] to
determine whether the claimant is presently employed. If the
claimant is not employed, the [Commissioner] then determines
whether the claimant has a “severe impairment” that limits her
capacity to work. If the claimant has such an impairment, the
[Commissioner] next considers whether the claimant has an
impairment that is listed in Appendix 1 of the regulations. When the
claimant has such an impairment, the [Commissioner] will find the
claimant disabled. However, if the claimant does not have a listed
impairment, the [Commissioner] must determine, under the fourth
step, whether the claimant possesses the residual functional capacity
to perform her past relevant work. Finally, if the claimant is unable
to perform her past relevant work, the [Commissioner] determines
whether the claimant is capable of performing any other work. If
the claimant satisfies her burden of proving the requirements in the
first four steps, the burden then shifts to the [Commissioner] to
prove in the fifth step that the claimant is capable of working.
Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46
(2d Cir. 1996)); see also Lesterhuis, 805 F.3d at 86 n.2 (describing the “five-step sequential
evaluation for adjudication of disability claims, set forth at 20 C.F.R. § 404.1520”); McIntyre,
758 F.3d at 150 (describing “the five-step, sequential evaluation process used to determine
whether a claimant is disabled” (citing 20 C.F.R. § 416.920(a)(4)(i)–(v))).
c.

Analysis

Plaintiff argues that the ALJ erred by failing to give controlling weight to Dr. Pilman,
Plaintiff’s treating physician, in determining Plaintiff’s RFC. (Pl. Mem. 21–24.) The
Commissioner argues that the ALJ’s decision not to give controlling weight to Plaintiff’s treating
physicians was supported by substantial evidence because there was conflicting evidence in the
14

record regarding Plaintiff’s limitations, which conflict the ALJ was entitled to resolve. (Comm’r
Mem. 10–17, 18–19.) For the reasons explained below, the Court finds that the ALJ violated the
treating physician rule by omitting a critical part of Dr. Pilman’s opinion from Plaintiff’s RFC
assessment.
“[A] treating physician’s statement that the claimant is disabled cannot itself be
determinative.” Micheli v. Astrue, 501 F. App’x 26, 28 (2d Cir. 2012) (quoting Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999)); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)
(same). But a treating physician’s opinion as to the “nature and severity” of a plaintiff’s
impairments will be given “controlling weight” if the opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the plaintiff’s] case record.”9 20 C.F.R. § 404.1527(c)(2); see
Lesterhuis, 805 F.3d at 88 (discussing the treating physician rule); Petrie v. Astrue, 412 F. App’x
401, 405 (2d Cir. 2011) (“The opinion of a treating physician is accorded extra weight because
the continuity of treatment he provides and the doctor/patient relationship he develops place[s]
him in a unique position to make a complete and accurate diagnosis of his patient.” (quoting
Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (per curiam))).
If an ALJ declines to give a treating physician’s opinion controlling weight, the ALJ must
consider a number of factors to determine how much weight to assign to the treating physician’s
opinion, specifically: “(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount

9

The regulations define “treating source” 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].” Brickhouse v. Astrue, 331 F. App’x 875, 877 (2d Cir. 2009) (quoting 20 C.F.R.
§ 404.1502).

15

of medical evidence supporting the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and (4) whether the physician is a specialist.” Selian, 708 F.3d at
418 (citing Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)); see also Halloran v. Barnhart,
362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)) (discussing the factors). The
ALJ must set forth the reasons for the weight assigned to the treating physician’s opinion.
Halloran, 362 F.3d at 32. While the ALJ is not required to explicitly discuss the factors, it must
be clear from the decision that the proper analysis was undertaken. See Petrie, 412 F. App’x at
406 (“[W]here ‘the evidence of record permits us to glean the rationale of an ALJ’s decision, we
do not require that he have mentioned every item of testimony presented to him or have
explained why he considered particular evidence unpersuasive or insufficient to lead him to a
conclusion of disability.’” (quoting Mongeur, 722 F.2d at 1040)). 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 F. App’x 74, 77 (2d Cir. 2012); see also Halloran, 362 F.3d
at 32–33 (“We do not hesitate to remand when the Commissioner has not provided ‘good
reasons’ for the weight given to a treating physician[’]s opinion . . . .”).
On the other hand, a “nontreating source” is defined as a “physician, psychologist, or
other acceptable medical source who has examined [the plaintiff] but does not have, or did not
have, an ongoing treatment relationship with [the plaintiff].” 20 C.F.R. § 416.902. In general,
“ALJs should not rely heavily on the findings of consultative physicians after a single
examination.” Selian, 708 F.3d at 419. This is because “consultative exams are often brief, are
generally performed without the benefit or review of [the] claimant’s medical history and, at
best, only give a glimpse of the claimant on a single day.” Cruz v. Sullivan, 912 F.2d 8, 13
(2d Cir. 1990); see also Hernandez v. Astrue, 814 F. Supp. 2d 168, 182–83 (E.D.N.Y. 2011)

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(“[T]he opinion of a consultative physician, ‘who only examined a plaintiff once, should not be
accorded the same weight as the opinion of [a] plaintiff’s treating psychotherapist.’” (quoting
Cruz, 912 F.2d at 13)).
The ALJ erred in his determination of Plaintiff’s RFC because, while he assigned partial
weight to Dr. Pilman’s contradicted medical opinions, Plaintiff’s RFC assessment did not include
Dr. Pilman’s uncontradicted opinion that Plaintiff likely would miss more than four days of work
per month. The Second Circuit has held that a medical opinion stating that a social security
claimant likely may miss work multiple times per month is probative as to whether the claimant
is disabled under the Social Security Regulations. See Greek v. Colvin, 802 F.3d 370, 376
(2d. Cir. 2015) (holding that because the plaintiff “could perform no jobs available in large
numbers in the national economy if he had to miss four or more days of work per month, the
ALJ’s failure to provide adequate reasons for rejecting [that] opinion was not harmless”);
Lesterhuis, 805 F.3d at 88 (remanding a case to an ALJ because “nothing in the record
contradicts [the treating physician’s] conclusion about the number of days each month that [the
plaintiff] is likely to be absent from work”); Rugless v. Comm’r of Soc. Sec., 548 F. App’x 698,
700 (2d Cir. 2013) (remanding for the ALJ to consider an opinion by one of the plaintiff’s
treating physicians, which opinion stated that the plaintiff likely would miss more than four days
per month).
Dr. Pilman opined explicitly that Plaintiff “is likely to be absent from work as a result of
psychiatric symptoms” “[m]ore than [four] days per month.” (R. 393.) In recounting the
evidence, the ALJ noted that Dr. Pilman was a treating physician and accorded “partial weight”
to Dr. Pilman’s opinions because Dr. Pilman’s mental status examinations of Plaintiff
“consistently demonstrate[d] normal to mild cognitive limitations.” (R. 32). However, the ALJ

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did not mention Dr. Pilman’s opinion regarding Plaintiff’s likely monthly absences in rendering
his decision, and did not include the information in his determination of Plaintiff’s RFC.
(See R. 16–20).
The ALJ’s omission of Plaintiff’s likely absences from work is notable for two reasons,
(1) the lack of a contradictory medical opinion and (2) the vocational expert’s testimony that
there would be no jobs for a person with Plaintiff’s determined RFC who had to miss work at
least one day per month.
First, there was no medical evidence in the record that contradicted Dr. Pilman’s opinion
regarding Plaintiff’s likely absences. Dr. Sholomon opined that Plaintiff’s depression and
anxiety caused fatigue that required Plaintiff to rest for “several hours” before Plaintiff “can
engage in activities again.” (R. 203.) Dr. Sholomon provided no direct opinions regarding
Plaintiff’s likelihood of absences from work if he were employed. (See R. 202–06.) Dr. Hou
opined that Plaintiff had moderate limitations in his “ability to . . . maintain regular attendance”
and “complete a normal . . . workweek without interruptions from psychologically based
symptoms.” (R. 59.) The only possible contradictory opinion regarding Plaintiff’s likely
absences is Dr. McCormick’s opinion that Plaintiff “can maintain a regular schedule.” (R. 210.)
Even if the ALJ considered Dr. McCormick’s opinion as contradictory to Dr. Pilman’s opinion
regarding Plaintiff’s likely absences, remand is nevertheless appropriate because the ALJ failed
to include any such reasoning or explanation for rejecting Dr. Pilman’s opinion in his decision.10

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To the extent the ALJ rejected Dr. Pilman’s opinions on the basis that Dr. Pilman’s
“[m]ental status examinations consistently demonstrate[d] normal to mild cognitive symptoms,”
(see R. 20), such rejection was erroneous because the ALJ may only reject Dr. Pilman’s opinions
based on contradictory medical opinions, not based on the ALJ’s interpretation of Plaintiff’s
medical records. See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“The ALJ erred in
rejecting the opinions of [the plaintiff’s treating] physicians solely on the basis that the opinions

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See Rugless, 548 F. App’x at 700 (holding that remand was required because “we need some
explanation of why there was no discussion in the ALJ’s decision of [the] opinion that [plaintiff]
would have to miss more than four days per month”); see also Lesterhuis, 805 F.3d at 88
(remanding a case to an ALJ because “nothing in the record contradicts [the treating physician’s]
conclusion about the number of days each month that [the plaintiff] is likely to be absent from
work”).
Second, at the hearing, the ALJ asked the vocational expert for available jobs for a
hypothetical claimant with Plaintiff’s RFC and the additional limitation of “miss[ing] more than
one day of work per month,” and the vocational expert testified that no jobs would be available
for such a person. (R. 50.) The ALJ’s question to the vocational expert about the effect of
Plaintiff’s absences, and the vocational expert’s response, highlights the ALJ’s error in failing to
include Dr. Pilman’s opinion regarding Plaintiff’s likely absences from work in the RFC
determination. See Greek, 802 F.3d at 376 (holding that because the plaintiff “could perform no
jobs available in large numbers in the national economy if he had to miss four or more days of
work per month, the ALJ’s failure to provide adequate reasons for rejecting [that] opinion was
not harmless”).

allegedly conflicted with the physicians own clinical findings. . . . We need not address whether
the treating physicians’ opinions bound the ALJ . . . because in this case the Commissioner failed
to offer and the ALJ did not cite any medical opinion to dispute the treating physicians’
conclusions.” (citations omitted)); cf. Camille v. Colvin, 652 F. App’x 25, 28 (2d Cir. 2016)
(“[The plaintiff] argues that it is improper to reject a treating physician’s opinion solely based
upon the treating physician’s own treatment notes. . . . We [have] held that ‘while an ALJ is free
to choose between properly submitted medical opinions, he is not free to set his own expertise
against that of a physician who submitted an opinion to or testified before him.’ Here, there was
such a contrary opinion.” (alterations omitted) (quoting Balsamo, 142 F.3d at 80–81)).

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Accordingly, the ALJ’s RFC assessment was flawed and requires remand of this case.11
III. Conclusion
For the foregoing reasons, the Court grants Plaintiff’s motion for judgment on the
pleadings and denies the Commissioner’s cross-motion for judgment on the pleadings. The
Court vacates the Commissioner’s decision and remands this action for further administrative
proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of Court is
directed to close this case.

SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: September 26, 2017
Brooklyn, New York

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Because the Court finds that remand is proper on the basis that the ALJ erred in failing
to consider Dr. Pilman’s opinion regarding Plaintiff’s likely absences in assessing Plaintiff’s
RFC, the Court does not address Plaintiff’s argument that the ALJ erred in determining at Step
Three that Plaintiff’s disabilities did not meet or medically equal a disability in Appendix 1 of
the Social Security Regulations, (Pl. Mem. 18–21). See Foxman v. Barnhart, 157 F. App’x 344,
347–48 (2d Cir. 2005) (declining to address arguments presented by the parties that were
different from the bases underlying the Court’s decision to remand).

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