Collins v. Colvin

Filing 15

ORDER: For the reasons set forth in the attached, the Court grants Plaintiff's 8 motion for judgment on the pleadings and denies the Commissioners 12 cross-motion. The Commissioner's decision is remanded for further consideration consistent with this Order. The Clerk of Court is respectfully requested to enter judgment and close this case. Ordered by Judge Pamela K. Chen on 1/2/2018. (Hess, Alexandra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DAVID R. COLLINS,
Plaintiff,
MEMORANDUM & ORDER
16-CV-6673 (PKC)

- against –
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:

Plaintiff David R. Collins (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking
judicial review of the Social Security Administration’s (“SSA”) denial of his claim for Disability
Insurance Benefits (“DIB”). The parties have cross-moved for judgment on the pleadings. (Dkts.
8, 12.) Plaintiff seeks reversal of the Commissioner’s decision and an immediate award of benefits,
or alternatively, remand for further administrative proceedings.

The Commissioner seeks

affirmation of the denial of Plaintiff’s claims. 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 Order.
BACKGROUND
I.

PROCEDURAL HISTORY
On January 3, 2015, Plaintiff filed an application for DIB, claiming that he was disabled

beginning on February 19, 2014. (Tr. 23.) 2 After his claim was denied (Tr. 85-90), Plaintiff

1

Nancy A. Berryhill became Acting Commissioner of Social Security on January 23,
2017. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted as the
Defendant in this suit.
2

All references to “Tr.” refer to the consecutively paginated Administrative Transcript.

requested and appeared at a hearing before an administrative law judge (“ALJ”), Margaret A.
Donaghy, on November 3, 2015 (Tr. 43-79). The ALJ issued a decision on January 27, 2016,
finding that Plaintiff was not disabled from February 19, 2014, his alleged onset date, through the
date of the ALJ’s decision. 3 (Tr. 23-36.) The ALJ’s decision became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request for review on September 30,
2016. (Tr. 1-7.)
II.

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

may bring an action in federal district court seeking judicial review of the Commissioner’s denial
of their benefits. 42 U.S.C. § 405(g). In reviewing a final decision of the Commissioner, the
Court’s role is “limited to determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct legal standard.” Talavera v. Astrue,
697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted). “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) (alterations and internal
quotation marks omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

In

determining whether the Commissioner’s findings were based upon substantial evidence, “the
reviewing court is required to examine the entire record, including contradictory evidence and
evidence from which conflicting inferences can be drawn.” Id. (quotation 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). If there is substantial evidence in the

3

Generally, the ALJ considers whether the claimant was disabled through the date that he
last met the insured status requirements of Title II of the Social Security Act. In this case, however,
Plaintiff met the insured status requirements until March 31, 2017. (Tr. 25.)
2

record to support the Commissioner’s findings as to any fact, those findings 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).
III.

ELIGIBILITY
BENEFITS

STANDARD

FOR

SOCIAL

SECURITY

DISABILITY

To receive DIB, claimants must be disabled within the meaning of the Act. Claimants
establish disability status by demonstrating an inability “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3). The claimant bears the
initial burden of proof on disability status and must demonstrate disability status by presenting
medical signs and findings, established by “medically acceptable clinical or laboratory diagnostic
techniques,” as well as any other evidence the Commissioner may require.

42 U.S.C. §§

423(d)(5)(A), 1382c(a)(3)(D). However, the ALJ has an affirmative obligation to develop the
administrative record. Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). This
means that the ALJ must seek additional evidence or clarification when the claimant’s medical
reports contain conflicts or ambiguities, if the reports do not contain all necessary information, or
if the reports lack medically acceptable clinic and laboratory diagnostic techniques. Demera v.
Astrue, No. 12 Civ. 432, 2013 WL 391006, at *3 (E.D.N.Y. Jan. 24, 2013); Mantovani v. Astrue,
No. 09 Civ. 3957, 2011 WL 1304148, at *3 (E.D.N.Y. Mar. 31, 2011).
In evaluating disability claims, the ALJ must adhere to a five-step inquiry. 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, the ALJ determines whether the claimant is
currently engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If the answer

3

is yes, the claimant is not disabled. If the claimant is not engaged in “substantial gainful activity,”
the ALJ proceeds to the second step to determine whether the claimant suffers from a “severe
impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is determined to be severe when it
“significantly limits [the claimant’s] physical or mental ability to do basic work activities.” 20
C.F.R. § 404.1520(c). If the impairment is not severe, then the claimant is not disabled within the
meaning of the Act. However, if the impairment is severe, the ALJ proceeds to the third step,
which considers whether the impairment meets or equals one of the impairments listed in the Act’s
regulations (the “Listings”). 20 CFR § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P,
App. 1. If the ALJ determines at step three that the claimant has one of the listed impairments,
then the ALJ will find that the claimant is disabled under the Act. On the other hand, if the claimant
does not have a listed impairment, the ALJ must determine the claimant’s “residual functional
capacity” (“RFC”) before continuing with steps four and five.

The claimant’s RFC is an

assessment which considers the claimant’s “impairment(s), and any related symptoms . . . [which]
may cause physical and mental limitations that affect what [the claimant] can do in the work
setting.” 20 C.F.R. § 404.1545(a)(1). The ALJ will then use the RFC determination in step four
to determine if the claimant can perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If
the answer is yes, the claimant is not disabled. Otherwise the ALJ will proceed to step five where
the Commissioner then must determine whether the claimant, given the claimant’s RFC, age,
education, and work experience, has the capacity to perform other substantial gainful work in the
national economy. 20 C.F.R. § 404.1520(a)(4)(v). If the answer is yes, the claimant is not
disabled; otherwise the claimant is disabled and is entitled to benefits. Id.

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IV.

RELEVANT FACTS AND MEDICAL RECORDS
Plaintiff’s claims of psychiatric disability, including major depressive disorder, post-

traumatic stress syndrome (“PTSD”), and panic disorder with agoraphobia (Tr. 25) stem from
Plaintiff’s military service. 4 He was a diesel mechanic in the United States Army from April 2007
until his honorable discharge in September 2010. (Tr. 51.) Plaintiff experienced two notable
traumatic situations while he was deployed in Iraq from April 2009 to April 2010 (Tr. 434): first,
one of his friends was killed after agreeing to switch positions with Plaintiff (Tr. 423); second, he
“was surrounded by [fifteen] Iraqi nationals whom he was tasked with escorting” and whom he
later discovered were insurgents (Tr. 342, 346, 347, 351). Plaintiff “date[s] all” of his psychiatric
symptoms to this second incident. (Tr. 342.) Plaintiff later attempted suicide by “put[ting] a gun
in his mouth with the intent of killing himself”, but was saved because a friend intervened. (Tr.
343.) Six months into his deployment, he was sent home due to anxiety and depression; he began
psychiatric treatment at Fort Drum until his discharge in 2010. (Tr. 383–84.)
After his discharge, he received an automotive certificate in 2011 from Apex Technical
School. On February 23, 2011, Plaintiff presented to the New York Veterans Affairs Medical
Center (“VAMC”) with the following issues:
[I]ncreasing levels of stress in the past 6 months since being discharged from the
Army. . . . Reports general anxiety and worry and panic attacks that are increasing
in frequency to daily. Describes 30 minute period where he feels weak, dizzy and
faint, sweaty, shaky, trouble breathing and as though things are closing in on him.
Comes on without warning and needs to leave the situation and sit in order to have
it pass. Having trouble sleeping, now maybe 5 hours per night, low energy, trouble
concentrating in school and has seen his grades drop from A’s to B’s as a result.
4

Plaintiff’s physical injuries and conditions during his military service included status-post
repair of a non-union of the right scaphoid with avascular necrosis, asthma, lumbar radiculopathy,
tinnitus, cellulitis, right patellofemoral syndrome, and seasonal allergies. (Tr. 25.) Due to the
grounds on which this Order remands Plaintiff’s application for further proceedings, the Court
recites only those aspects of Plaintiff’s medical history that are relevant to resolving the pending
motions.
5

(Tr. 441.) Plaintiff also reported feeling “stressed, sometimes get[ting] very anxious, feeling
shaky, when he gets stressed. Reports he has been feeling this way over past month. Says he has
lots of problems that are making him nervous.” (Tr. 445.) Plaintiff was diagnosed with anxiety
disorder with panic, and prescribed Paxil, Klonopin, and Seroquel. (Tr. 443, 444, 448.)
On March 1, 2011, Plaintiff returned to the VAMC for a refill of Paxil, Klonopin, and
Seroquel. (Tr. 438-39.) He stated that he was “doing fine until today when I ran out of
med[ication], now I have the same thing, I feel anxious and dizzy.” (Tr. 439.) He was diagnosed
with anxiety disorder not otherwise specified (NOS) and depressive disorder NOS. (Id.) Two
days later, on March 3, 2011, Plaintiff returned to the VAMC for a physical assessment. He tested
positive on a PTSD screen and reported that he “[d]oes not like crowds and experiences panic
attacks [daily] especially if he is not taking his meds.” (Tr. 434.) He told hospital staff that he
was currently at Queensborough Community College studying accounting. (Id.)
On March 23, 2011, Plaintiff presented to David M. Matalon, M.D., at the VAMC for a
psychiatric consultation. (Tr. 423, 786-90, 969-73.) He reported daily intrusive memories,
insomnia, hypervigilance which led to severe anxiety, exaggerated startle response, occasional
nightmares, avoidance, and that he “[wa]s isolating somewhat from social activity”. (Tr. 423, 425,
786.) Dr. Matalon prescribed Ambien, Seroquel, Klonopin, and Celexa, and diagnosed PTSD and
generalized anxiety disorder (“GAD”). (Tr. 424-25.) The next day, on March 24, 2011, Plaintiff
visited the VAMC again, and Dr. Matalon found that Plaintiff “suffers from generalized anxiety
by frequent worrying and physical symptoms” and “presents with post-traumatic features as
evidenced by repeated intrusive thoughts of traumatic event with hypervigilance.” (Tr. 419.)
Similar symptoms were noted during Plaintiff’s Traumatic Brain Injury Consultation. (Tr. 781.)
On April 13, 2011, Plaintiff missed a mental health intake evaluation scheduled at the VAMC.

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(Tr. 779.) On May 27, 2011, while Plaintiff was in the VAMC after a motorcycle accident, the
treating physician noted that Plaintiff had “intrusive thoughts and hypervigilance daily which
interfered with his interactions with others. Is currently in school. He states he does not have a
network of emotional support but does occasionally speak to his grandfather.” (Tr. 418.)
Between 2012 and August 2013, Plaintiff attended school full-time for his Master Auto
Body and Collisions Certificate, and worked as a gym manager. (Tr. 49-50, 306, 389.) He stated
that “even in school, it was hard. I would have to explain to my teachers, hey I need––sometimes
I have to leave the room if it gets too strenuous for me. Or, you know, I would have to work on
something by myself.” (Tr. 57.) On April 2, 2013, Plaintiff underwent a Biopsychosocial
Assessment in connection with a hospital stay following an allergic reaction. He reported having
“strong family, personal relationships or supports in the community” (Tr. 390), but also reported
that he had “little relationships/social interaction” (Tr. 718).
On April 8, 2013, Plaintiff saw his primary care physician, Dr. Lawrence De Weil, for
anxiety and insomnia. (Tr. 381, 385, 698-704, 1012-15.) Plaintiff stated that “he ran out of
medication; over past few [weeks], noted increasing anxiety for unclear reasons . . . he seeks care
of anxiety and insomnia.” (Tr. 381.) Dr. De Weil previously saw Plaintiff in 2011 for anxiety and
PTSD, but Plaintiff did not “follow up in mental health clinic because of schedule and fear of
group sessions.” (Id.) Dr. De Weil assessed panic attacks, anxiety, and PTSD, and prescribed
Klonopin and Seroquel. (Tr. 383.) He also noted that while on Clonazepam and Seroquel, Plaintiff
should do “no driving[,] operating dangerous machinery[,] engaging in dangerous activity[,] or
activity requiring full attention”. (Tr. 700.) Plaintiff’s case manager stated that Plaintiff reported
that he “does not like to be in crowds or around others. Reports he just goes to school and stays
home.” (Tr. 385.) On April 12, May 17, and June 21, 2013, Plaintiff missed mental health intake

7

evaluations scheduled at the VAMC. (Tr. 691, 697-98.) On September 28, 2013, Plaintiff
presented to the VAMC Emergency Department with complaints of anxiety, tingling in his fingers
and toes, hyperventilation, and intermittent pain in the left pectoral area. (Tr. 374.) He looked
“very anxious” and was diagnosed, in part, with GAD. (Tr. 463.)
After Plaintiff graduated from school, from October 2013 to February 19, 2014—the date
of the onset of his disability—he worked as a diesel mechanic at an airport eight hours a day, five
days a week. (Tr. 53, 203.) He stated that he stopped, in part, because he “[could not] be around
too many people. . . . I actually almost passed out on the job from anxiety.” (Tr. 53-54.) He further
stated that “[t]he planes were giving me anxiety” (Tr. 349), and “[u]sually, when there’s more than
one person talking to me, I get this bad anxiety and I start to shake. And then I get very dizzy. And,
you know, if I don’t get out of the situation or take my medicine, I’ll pass out” (Tr. 56).
On July 31, 2014, Plaintiff went to the VAMC for examinations in connection with his
DIB claim from the Department of Veterans Affairs (“VA”).

Dr. Ronald E. Hanover, a

psychologist, evaluated Plaintiff for PTSD, GAD, and panic attacks. (Tr. 481.) Plaintiff reported
having panic attacks and “near-continuous panic or depression affecting the ability to function
independently, appropriately and effectively.” (Tr. 487.) Dr. Hanover found that Plaintiff had
occupational and social impairment with deficiencies in most areas, such as a work, school, family
relations, judgment, thinking and/or mood. (Tr. 482.) He further found that Plaintiff met all of
the criteria for PTSD (Tr. 486-87):
[Plaintiff] described very clearly all the symptoms of PANIC DISORDER being
taken to hospital at least 4 times for fear he was having a heart attack. He described
all the symptoms of panic attack. . . . He described ANXIETY as a daily occurrence
being unable to be in crowds, or open spaces, being totally [unable] to take public
transportation and in general being anxious over living now. He speaks of staying
home, drawing the drapes (all black) and living an isolated life. He broke up with
his girl-friend as he was unable to socialize (he cannot go to a movie, cannot take
his daughter to theme parks[,] cannot eat out). He describes all the symptoms of

8

PTSD. . . . In the opinion of this psychologist[,] Mr. Collins has all the symptoms
of PTSD, GAD AND PANIC ATTACKS leading to a life of isolation, withdrawal,
and poor sel[f]-image. He has been on medication for these issues.
(Tr. 487-88.) That same day, Plaintiff also saw Dr. Ira Jasser, a psychiatrist, after Plaintiff stated
that he wanted to resume mental health treatment at the VAMC. Plaintiff reported “nightmares
are problematic as are daytime panic attacks that are [triggered] by crowds.” (Tr. 357.) Dr. Jasser
diagnosed Plaintiff with chronic PTSD and panic disorder with agoraphobia and prescribed
prazosin, Ambien, Klonopin, and sertraline. (Id.) On August 8 and August 15, 2014, Plaintiff
missed mental health intake evaluations scheduled at the VAMC. (Tr. 342.)
On September 16, 2014, Plaintiff received his first disability decision from the VA. It
assigned an “overall or combined rating” of 80% disabled, with 70% of the determination based
on Plaintiff’s PTSD with generalized anxiety disorder and panic attacks. (Tr. 269-71.) The VA’s
PTSD evaluation was based on the following findings:
o Near-continuous panic affecting the ability to function independently,
appropriately and effectively
o Inability to establish and maintain effective relationships
o Difficulty in adapting to a worklike setting
o Occupational and social impairment, with deficiencies in most areas, such as
work, school, family relations, judgment, thinking, or mood
o Disturbances of motivation and mood
o Difficulty in establishing and maintaining effective work and social relationships
o Panic attacks (weekly)
o Mild memory loss
o Depressed mood
o Chronic sleep impairment
o Anxiety
o Suspiciousness
(Tr. 269-70.)
On November 13, 2014, Plaintiff underwent a psychosocial assessment at the VAMC at
his request because he was feeling extremely anxious and had run out of Klonopin nine or ten days
prior. (Tr. 342.) He reported,

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his biggest concern is anxiety (“I can’t leave the house” “I close the blinds” “I am
isolating”). He stated that he feels anxious, on-guard, edgy, worried, and paranoid
(feels like people are watching him). He endorsed nightmares about his military
experiences ~4x/week. He endorsed regular intrusive thoughts of his military
experiences. He said that he daydreams excessively. He denied depressed mood.
He denied [suicidal or homicidal] intents, or plans.
(Id.) He also reported psychic anxiety, panic symptoms, and insomnia (Tr. 343), but had a negative
screen for depression (Tr. 344). That same day, he was also evaluated at the VAMC by Dr. Marie
Weinberger, a psychiatrist, for anxiety, depression, and PTSD, as well as to refill his Klonopin
prescription. (Tr. 341.) He stated that he “fe[lt] much better on Klonopin” (id.), but that he had
stopped taking sertraline because of the side effects (Tr. 341-42). On November 21, 2014, Plaintiff
missed a mental health intake evaluation scheduled at the VAMC. (Tr. 340.)
On December 29, 2014, Plaintiff went to the VAMC, in part, for worsening anxiety and
PTSD symptoms. (Tr. 332, 460.) Dr. De Weil noted that Plaintiff was “on Klonopin, which
helps[,] but he ran out” (id.), and that Plaintiff had stopped taking Zoloft because it made him feel
“loupy” [sic] (Tr. 527). Dr. De Weil requested that an “[appointment] be made with Dr. Matalon
in the PTSD clinic ASAP” (Tr. 327), and gave Plaintiff a refill for Klonopin and Ambien (Tr. 32728, 332, 523, 638). On January 25, 2015, Plaintiff returned to Dr. Jasser for psychiatric medication
management, and reported “experiencing Post Traumatic Stress that includes upsetting memories
of my trauma.” (Tr. 318.) Dr. Jasser added Prazsin and Ambien, resumed Klonopin, and added
Sertraline. (Tr. 319, 1332.)
On January 29, 2015, Plaintiff submitted his function report as part of his DIB application.
(Tr. 212.) He stated that he cannot “go to the mall, take public transportation, do a push up,
conversate with a group of people”, all due to his condition, and that he cannot sleep due to
nightmares and insomnia. (Tr. 213.) He further stated that he “[h]ardly” goes outside other than
“[m]aybe twice a week” because he is “afraid” and spends time with others “[o]nce a month

10

maybe”. (Tr. 215.) He said that he only speaks to family and is “very anxious around anyone
else.” (Id.) Additionally, he stated that he travels by car, but cannot go out alone. (Id.) He
further stated that he does “not often” finish what he starts (Tr. 219) and “shut[s] down” when
there is stress or change in his schedule (Tr. 220). Finally, he stated that he has “daily” panic
attacks, which he responds to by “tak[ing] his medicine, breath[ing] big breaths, and seclud[ing]
himself.” (Tr. 223.) Plaintiff said that the panic attacks last “about an hour or two depending on
the circumstances and it takes “at least 5 hours before [he] go[es] back to normal” after them. (Id.)
On February 1, 2015, Plaintiff returned to the VAMC Emergency Department with
“heartburn, palpitations, chest pain in certain positions” and reported being out of Klonopin for
the prior two days. (Tr. 310-11.) Plaintiff reported that he had recently joined a gym. (Tr. 311.)
He was diagnosed, in relevant part, with anxiety. (Tr. 314.) On February 27, 2015, the New York
State Office of Temporary Disability Assistance completed an electronic records request for
medical advice and noted that the “[o]nly treating source is VA, [Plaintiff] having issues with
anxiety, PTSD and leaving house. Limited records from VA source. . . . [N]o other psych
treatment between 02/2014 until 06/2014.” (Tr. 586.) On May 27, 2015, Plaintiff had an
appointment with Dr. Matalon. He complained of “insomnia, significant hypervigilance which
leads to panic and causes isolation, insomnia.” (Tr. 964.) Dr. Matalon noted that Plaintiff
“obtained degree in automotive repair, got a job but had to leave after 4 months b/c of anxiety, last
worked 2/2014.” (Id.) Dr. Matalon assigned a Mental Health Treatment Coordinator to Plaintiff’s
case and discontinued Ambien and Zoloft but prescribed Remeron and Klonopin. (Id.) On July
21, 2015, Plaintiff reported to Dr. Matalon that “things have been rough” due to financial strain
and eviction and that his “[a]nxiety levels have increased, sleep remains poor.” (Tr. 963.) Dr.
Matalon discontinued the Remeron, continued the Klonopin, and started Vistaril. (Id.) Plaintiff

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also began taking oxycodone for his wrist pain and was advised that a potential side effect of his
medication was impaired driving or impaired ability to safely operate machinery. (Tr. 978, 992,
993, 1168.)
On August 12, 2015, Plaintiff received his second disability decision from the VA. It found
him 100% disabled effective July 17, 2015, but did not change his percentage of disability due to
PTSD or anxiety. (Tr. 137.) The VA also found that he was entitled to “special monthly special
compensation based on [being] housebound” effective July 17, 2015 on the basis that “[t]he
evidence of record shows that you are service connected for asthma currently at 100 percent
disabling and a[] separate evaluation of 70 percent for your service connected post traumatic stress
disorder which renders you entitle[d] to statutory housebound benefits.” (Id.)
On November 16, 2015, Dr. Matalon received a voicemail from Plaintiff “stating that he is
sleeping very poorly and feels anxious. Requesting to be placed back on Seroquel”, which Dr.
Matalon obliged. (Tr. 1181.) On December 14, 2015, Dr. Matalon wrote a letter certifying that
Plaintiff received treatment at the VAMC for PTSD and stating that “[g]iven the intensity of his
underlying psychiatric symptoms, [Plaintiff] is unable to maintain gainful employment at the
present time.” (Tr. 1022.)
V.

ALJ DECISION
ALJ Donaghy’s January 26, 2016 decision followed the five-step evaluation process

established by the SSA to determine whether an individual is disabled. (Tr. 26-36.) At step one,
the ALJ found that Plaintiff had not engaged in substantial gainful activity between his alleged
onset date (February 19, 2014) through the date of decision (January 26, 2016). (Tr. 25.) At step
two, the ALJ determined that Plaintiff suffered from major depressive disorder, PTSD, panic
disorder with agoraphobia, status-post repair of a non-union of the right scaphoid with avascular

12

necrosis, asthma, and lumbar radiculopathy, each of which qualified as severe impairments, and
tinnitus, cellulitis, right patellofemoral syndrome, and seasonal allergies, each of which qualified
as non-severe impairments. (Id.) At step three, the ALJ determined that Plaintiff’s impairment
did not meet or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 26.) In reaching this determination, the ALJ considered Listings 1.02 (“Major
dysfunction of joint(s)”), 12.04 (“Affective Disorders”) and 12.06 (“Anxiety Disorders”). (Id.)
As support for this determination, the ALJ noted that Plaintiff has “consistently been able to
perform personal care” and that his “reported difficulty leaving the house at times due to anxiety .
. . ha[s] been in the context of running out of medication” and that “treatment records do not
confirm such an inability” to leave his home. (Tr. 26-27.)
Having determined that Plaintiff’s impairment did not meet or medically equal any of the
impairments in the Listings, ALJ Donaghy determined Plaintiff’s RFC, finding that Plaintiff was
able to perform sedentary work with certain exceptions. (Tr. 28.) With respect to Plaintiff’s
psychiatric symptoms, ALJ Donaghy found that “while there is no doubt that the claimant’s
psychiatric symptoms have a significant impact on his daily functioning, the evidence as a whole
does not suggest that these limitations are totally disabling when the claimant is getting treatment
and taking his medications.” (Tr. 34; see also Tr. 30.) The ALJ also noted that Plaintiff was still
able to be a full-time student as late as November 2014 (Tr. 30, 32) 5 and had “good activities of
daily living” (Tr. 31). Additionally, ALJ Donaghy stated that although she was “mindful that
[Plaintiff] was found to have a veteran’s disability rating of 70% relating to his [PTSD] . . . the

5

The Court cannot determine how ALJ Donaghy concluded that Plaintiff was a full-time
student until November 2014. None of the ALJ’s citations to the record support this assertion.
(See Tr. 30.) During the ALJ Hearing, Plaintiff specifically stated that he did not remember when
in 2014 he concluded the master auto body and collisions certificate program (Tr. 49-50) and his
Disability Report stated that he had completed the course in August 2013 (Tr. 203.)
13

Social Security Administration utilizes different standards of disability than the veterans’ ratings,
and these ratings cannot be dispositive in Social Security Administration disability determination.”
(Tr. 32.) The ALJ also stated that Plaintiff’s medical treatment has been “conservative” since
Plaintiff has been “hospitalized only on rare occasion for his impairments” and “has consistently
noted in the treatment records that Klonopin alleviates his anxiety symptoms.” (Tr. 34.) Finally,
ALJ Donaghy determined that Dr. Matalon’s opinion that Plaintiff was unable to work due to his
disability was “not entitled to controlling or even great weight, as disability is an issue reserved to
the Commissioner.” (Id.) ALJ Donaghy ultimately found that Plaintiff has mild limitations in
activities of daily living, moderate limitations in social functioning, and moderate limitations in
concentration, persistence, or pace, but that he functions well enough to perform a range of simple,
low contact work. (Id.)
At step four, ALJ Donaghy determined that Plaintiff was unable to perform his past
relevant work. (Tr. 35.) At step five, based on Plaintiff’s RFC and testimony by a vocational
expert, the ALJ determined that Plaintiff could make a successful adjustment to work existing in
significant numbers in the national economy. (Tr. 35-36.) On that basis, ALJ Donaghy found that
Plaintiff was not disabled from the alleged onset date (February 14, 2014) through the date of the
decision (January 27, 2016). (Tr. 36.)
DISCUSSION
Plaintiff challenges ALJ Donaghy’s denial of benefit on three grounds. First, Plaintiff
argues that the ALJ erred in determining Plaintiff’s RFC by failing to properly weigh the medical
evidence and failing to fully develop the record for Plaintiff, who was acting pro se. (Pl.’s Br.,

14

Dkt. 9, at 10-15.) 6 Second, Plaintiff argues that the ALJ failed to properly evaluate Mr. Collins’s
credibility. (Id. at 15-18.) Third, Plaintiff argues that the ALJ failed to adequately consider the
VA Disability Determination. (Id. at 18-20.) For the reasons stated below, the Court finds that
ALJ Donaghy failed to develop the record to properly determine Plaintiff’s RFC and also failed to
consider the VA Disability Determination. Furthermore, the Court finds that the ALJ’s errors in
this regard are grounds for remand to further develop the record and issue a new decision, as
explained more fully herein. 7
First, ALJ Donaghy improperly concluded in its RFC analysis that Plaintiff’s anxiety is
managed when he is “getting treatment and taking his medications.” (Tr. 26, 27, 30, 34.) While
Plaintiff did state on some occasions that Klonopin made him feel better, there is no medical basis
for the ALJ’s conclusion that medication sufficiently manages Plaintiff’s PTSD and anxiety to a
degree where he can perform work-related functions. See Gross v. Astrue, No. 12-CV-6207P,
2014 WL 1806779, at *18 (W.D.N.Y. May 7, 2014). In just one example, during Plaintiff’s PTSD
evaluation on July 31, 2014, Dr. Hanover found that Plaintiff had anxiety “as a daily occurrence
being unable to be in crowds, or open spaces, being totally unable to take public transportation and
in general being anxious over living now” (Tr. 488), despite the fact that Plaintiff was already
taking Klonopin and other medications (Tr. 383, 424, 425, 438, 439, 443, 444, 448). On this issue,

6

Page numbers refer to the pagination generated by the Court’s CM/ECF system, and not
the document’s internal pagination.
7

Because the Court reverses and remands on these grounds, the Court need not address the
ALJ’s evaluation of Plaintiff’s credibility, the lack of weight given to Dr. Matalon’s opinion, or
the ALJ’s erroneous chronology of Plaintiff’s time as a student. On remand, however, the ALJ
should reconsider these determinations de novo in light of the holdings made in this Order. The
ALJ may also choose to reassess its determination that Plaintiff can perform the job of escort
vehicle driver (Tr. 36) in light of the fact that Dr. De Weil previously told Plaintiff that he should
do “no driving[,] operating dangerous machinery[,] engaging in dangerous activity[,] or activity
requiring full attention” while on Klonopin (Tr. 700).
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the ALJ was required to develop the record by either seeking out the opinion of the treating
physician—in this case Dr. Matalon—or retaining a qualified expert to establish the mental RFC
found for Plaintiff. See Burger v. Astrue, 282 F. App’x 883, 885 (2d Cir. 2008) (“Indeed, the
relevant regulations specifically authorize the ALJ to pay for a consultative examination where
necessary to ensure a developed record.”). The ALJ was not entitled to draw her own medical
conclusions about Plaintiff’s RFC. See Gross, No. 12-CV-6207P, 2014 WL 1806779, at *18
(remanding where the ALJ determined Plaintiff’s RFC “through her own interpretation of various
MRIs and x-ray reports contained in the treatment records”); see also Suide v. Astrue, 371 F. App’x
684, 690 (7th Cir. 2010) (“[w]hen an ALJ denies benefits, she must build an accurate and logical
bridge from the evidence to her conclusion, . . . and she is not allowed to ‘play doctor’ by using
her own lay opinions to fill evidentiary gaps in the record”) (internal quotations and citations
omitted).
The ALJ’s approach in this case violated the basic rule that “[t]he ALJ is not permitted to
substitute his [or her] own expertise or view of the medical proof for the treating physician’s
opinion” or a qualified expert. Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015). Therefore, the
case should be remanded for further development of the record. Cichocki, 729 F.3d at 177
(“[W]here [the Court] is ‘unable to fathom the ALJ’s rationale in relation to evidence in the record,
especially where credibility determinations and inference drawing is required of the ALJ,’ we will
not ‘hesitate to remand for further findings or a clearer explanation for the decision.’”) (quoting
Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982)); see also Legall v. Colvin, 13-CV-1426,
2014 WL 4494753, at *4 (S.D.N.Y. Sept. 10, 2014) (“Because 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 [or her] own opinion for that of a physician, and

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has committed legal error.”) (quoting Hilsdorf v. Comm’r of Soc. Sec., 724 F.Supp.2d 330, 347
(E.D.N.Y. 2010)).
Second, the ALJ erred by failing to give any weight to the VA’s determination of disability.
In the Second Circuit, “a determination made by another governmental agency that
a social security claimant is disabled is entitled to some weight and should be considered,” even
though “that determination is not binding.” Lohnas v. Astrue, 510 F. App’x 13, 14 (2d Cir. 2013)
(citation and internal quotation marks omitted). “Despite this . . . limited approach, however, the
Commissioner is not generally free to completely disregard a VA disability rating.” Machia v.
Astrue, 670 F. Supp. 2d 326, 335 n.10 (D. Vt. 2009) (citing Allord v. Barnhart, 455 F.3d 818, 820
(7th Cir. 2006)). In this case, although the ALJ noted that Plaintiff was found to have a veteran’s
disability rating of 70% relating to his PTSD, she summarily dismissed that finding with the simple
statement that “the Social Security Administration utilizes different standards of disability than the
veterans’ ratings, and these ratings cannot be dispositive in Social Security Administration
disability determination.” (Tr. 32.) While it is true that the VA’s “determination is not binding”
on the SSA, Lohnas, 510 F. App’x at 14, here, the ALJ does not appear to have given the VA’s
disability determination any consideration or weight, in contravention of Second Circuit precedent.
Furthermore, the fact that the VA found that Plaintiff was entitled to “special monthly special
compensation” for being housebound effective July 17, 2015 due, in part, to Plaintiff’s PTSD (Tr.
137 (emphasis added)), lends credence to Plaintiff’s claims that he rarely leaves his home, making
the ALJ’s failure to address this fact all the more puzzling and unjustified. (See also Tr. 586.)
Accordingly, this action is remanded for further development of the record and further
proceedings consistent with this Order. See Kercado v. Astrue, No. 08 Civ. 478, 2008 WL
5093381, at *1 (S.D.N.Y. Dec. 3, 2008) (“It is well settled that the ALJ has an affirmative duty to

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develop the record in a disability benefits case and that remand is appropriate where this duty is
not discharged.”); accord Lamorey v. Barnhart, 158 F. App’x 361, 362 (2d Cir. 2006) (“Generally,
when an ALJ fails adequately to develop the record, we remand for further proceedings.”); S.S.R.
16-3P, 2016 WL 1119029, at *4 (Mar. 16, 2016) (“We will not evaluate an individual’s symptoms
without making every reasonable effort to obtain a complete medical history unless the evidence
supports a finding that the individual is disabled.” (footnote omitted)).
CONCLUSION
For the reasons set forth above, the Court grants Plaintiff’s motion for judgment on the
pleadings and denies the Commissioner’s cross-motion. The Commissioner’s decision is
remanded for further consideration consistent with this Order. The Clerk of Court is respectfully
requested to enter judgment and close this case.

SO ORDERED.
/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge

Dated: January 2, 2018
Brooklyn, New York

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