Rustemi v. Colvin

Filing 28

ORDER: For the reasons set forth in the attached Memorandum and Order, Defendant's motion for judgment on the pleadings is DENIED, Plaintiff's motion for judgment on the pleadings (incorrectly filed as a motion for summary judgment) is GRANTED in part and DENIED in part, and this action is remanded for further proceedings consistent with this Memorandum and Order. Ordered by Judge Kiyo A. Matsumoto on 1/17/2020. (Ammari, Kamil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

----------------------------------X
KERIM RUSTEMI,
Plaintiff,

MEMORANDUM & ORDER

v.

17-cv-3318 (KAM)

ANDREW M. SAUL, Commissioner
of Social Security,
Defendant. 1
----------------------------------X

MATSUMOTO, United States District Judge:
Kerim Rustemi (“Plaintiff”) appeals the final decision
of the Commissioner of Social Security (“Defendant”) pursuant to
42 U.S.C. § 405(g), which found him ineligible for supplemental
security income benefits under Title XVI of the Social Security
Act (the “Act”) on the basis that he was not disabled within the
meaning of the Act.

Before the Court are the parties’ cross-

motions for judgment on the pleadings.

For the reasons set

forth below, Defendant’s motion is DENIED, Plaintiff’s motion is
GRANTED in part and DENIED in part, and this action is remanded
for further proceedings consistent with this Memorandum and
Order.
Plaintiff commenced this action against Carolyn W. Colvin, as Acting
Commissioner of Social Security. On January 21, 2017, Nancy A. Berryhill
became the Acting Commissioner of Social Security, and on June 17, 2019,
Andrew M. Saul became the Commissioner of Social Security. Because Carolyn
W. Colvin was sued in this action only in her official capacity, Andrew M.
Saul is automatically substituted for Carolyn Colvin as the named defendant.
See Fed. R. Civ. P. 25(d). The Clerk of the Court shall amend the caption in
this action as indicated above.
1

1

Background
I.

Procedural History
On May 10, 2013, Plaintiff filed a joint application

for Social Security Disability Benefits and Supplemental
Security Income benefits pursuant to Title II and Title XVI of
the Social Security Act.

(ECF No. 25, Administrative Transcript

(“Tr.”), at 192-194, 200-204.)

Plaintiff claimed that he became

disabled on December 31, 2012 due to a combination of physical
and mental impairments.

(Id. at 192-204.)

The Social Security

Administration (SSA”) employee who accepted Plaintiff’s
application observed that Plaintiff “had a very poor memory, and
had some difficulty understanding.

[Plaintiff] sat down and

stood up very slowly, and walked away very slowly.

[Plaintiff]

also had some difficulty using and raising his left arm and
shoulder.”

(Id. at 214.)
On August 2, 2013, the SSA denied both of Plaintiff’s

applications on the basis that he was not disabled within the
meaning of the Act.

(Id. at 119-120.)

Plaintiff requested a

hearing before an Administrative Law Judge (“ALJ”).
123-124.)

(Id. at

ALJ Mark Solomon held a hearing on April 7, 2015, at

which Plaintiff, represented by a non-attorney representative,
appeared and testified.

(Id. at 77-102.)

On June 12, 2015, ALJ Solomon issued a decision
finding “that [Plaintiff] ha[d] the Residual Functional Capacity
2

(“RFC”) to perform sedentary work as defined in [20 C.F.R. §§]
1567(a) and 416.967(a)[,] except that [Plaintiff] [wa]s limited
to overhead reaching with non-dominant upper extremity.
[Plaintiff could] remember, understand, and carry out simple
instructions, make simple work-related decisions, maintain
attention and concentration for routine work, maintain a regular
schedule and perform low stress jobs, defined as[] one with no
close interpersonal contact with the general public.”
63.)

(Id. at

ALJ Solomon concluded that Plaintiff was not disabled

within the meaning of the Act and not entitled to benefits.
(Id. at 56-76.)
On June 22, 2015, Plaintiff appealed ALJ Solomon’s
decision to the Appeals Council.

(Tr. 54-55.)

The Appeals

Counsel denied Plaintiff’s request for review on November 22,
2016, making ALJ Solomon’s decision the final decision of the
Commissioner.

(Tr. 1-7.)

On January 20, 2017, Plaintiff filed

the instant action in federal court seeking review of the
Commissioner’s decision. (ECF No. 1, Complaint.)
II.

Factual Background
A. Plaintiff’s Non–Medical History
Plaintiff was born on October 29, 1969 in Yugoslavia.

(Tr. 103, 218.)
the 8th grade.

Plaintiff attended school in Yugoslavia until
(Id. at 218.)

Plaintiff is now a U.S. citizen.

(Id. at 192.)
3

Plaintiff was 43 years old at the alleged onset of his
disability on December 31, 2012.
past work was as a waiter.

(Id. at 103.)

(Id. at 233.)

Plaintiff’s

As a waiter,

Plaintiff worked on his feet for twelve hours a day, but was not
required to lift more than ten pounds.
last worked in 2011.

(Id. at 82.)

(Id. at 233.)

Plaintiff

Plaintiff resided in

Brooklyn, New York, at the time he filed his applications.

(Id.

at 216.)
Plaintiff completed a “Function Report” on June 12,
2013.

(Id. at 223-24.)

representations.

The report contained the following

Plaintiff gets up in the morning and likes to

drink coffee, cleans his room, “watch[es] out from [his]
window,” and “sleeps a lot”.

(Id. at 224.)

Plaintiff’s illness

affects his sleep, and he is limited in dressing and bathing
because he has back pain when he sits and stands and cannot lift
his left hand.

(Id.)

Plaintiff can do laundry and cook with

assistance, but he does not have the patience to cook for too
long.

(Id. at 226.)

Plaintiff can walk and use public

transportation but goes out “only if [he] need[s] to.”

(Id.)

Plaintiff does not spend time with others, does not socialize
because people make him nervous, and has “lost interest in many
things.”

(Id. at 228.)

Plaintiff can follow written and spoken

instructions and “finish what [he] start[s],” but he has
problems concentrating and paying attention and is forgetful.
4

(Id.)

Plaintiff has no problems getting along with people in

authority and has never lost a job because he cannot get along
with others.

(Id. at 230.)

When Plaintiff is under stress, he

forgets everything that he is supposed to do.

(Id. at 231.)

B. Plaintiff’s Medical History
Plaintiff has presented medical records dating back to
August 26, 1991. (See generally Tr. 284-330.)

The discussion

below, however, addresses only those medical records which
pertain to Plaintiff’s mental illness commencing on July 25,
2013.

Although Plaintiff also suffers from degenerative joint

and spinal disease, Plaintiff does not appeal the portion of ALJ
Solomon’s addressing those conditions.

Thus, the Court focuses

on the medical evidence regarding Plaintiff’s mental
impairments.
i. Treating Physician - Dr. Marlene Charles, M.D.
Psychiatrist Marlene Charles, M.D. (“Dr. Charles”),
began treating Plaintiff on December 31, 2013.
663.)

(Id. at 661-

Plaintiff complained of depression, which began four

years earlier when he injured his shoulder and back and his wife
left him to return to her native country with his children.
(Id. at 661.)

Plaintiff reported difficulty sleeping, decreased

appetite, loss of energy and interest in activities, feelings of
sadness, and irritability.

(Id.)

Plaintiff denied having any

hallucinations or delusions at that time.
5

(Id.)

After their first meeting, Dr. Charles described
Plaintiff as “sad looking,” “wary,” “tense,” casually groomed,
and anxious.

(Id.)

Dr. Charles found Plaintiff’s speech skills

and language skills normal, and she saw no apparent signs of
delusions, hallucinations, bizarre behaviors, or other
indications of psychosis.

(Id.)

homicidal or suicidal thoughts.

Plaintiff credibly denied
(Id.)

Plaintiff was fully

oriented and had fair insight and fair judgement.
62.)

(Id. at 661-

However, Plaintiff displayed signs of anxiety and moderate

depression.

(Id.)

Dr. Charles assigned Plaintiff a Global

Assessment of Functioning (“GAF”) score of 70, which corresponds
to mild symptoms; diagnosed him with Major Depressive Disorder,
Recurrent, Moderate; and prescribed him Zoloft.

(Id.)

Plaintiff continued to follow-up with Dr. Charles over
the next several years.

The medical records submitted by

Plaintiff provide a substantial amount of detail on Plaintiff’s
continued symptoms and treatment with Dr. Charles.

Plaintiff

regularly struggled with anxiety and apprehension.

(See, e.g.,

id. at 639, 652, 657, 659.)

Although Plaintiff reported changes

in the degree of his symptoms, his diagnoses remained largely
unchanged over that period, with the exception that Dr. Charles
later added that Plaintiff also suffered from Generalized
Anxiety Disorder.

(See, e.g., id. at 639.)

On occasion, Dr.

Charles also found signs of psychotic thought process.
6

(See,

e.g., id. at 647.)

Throughout this period, Dr. Charles

routinely assigned Plaintiff a GAF of 70 to 75, and diagnosed
him with Major Depressive Disorder and Generalized Anxiety
Disorder.

(See, e.g., id. at 650.)

Plaintiff continued to take

medications including Xanax, Zoloft, and Risperdal.
On February 12, 2015, Dr. Charles completed a “Lower
Extremity Disability Questionnaire.”

(Id. at 618-625.)

Dr.

Charles left the majority of the sections which discussed
physical impairments blank and completed the sections which
discussed mental impairments.

(Id.)

Dr. Charles indicated that

she had seen Plaintiff on a monthly basis from December 2013
through February 2015.

(Id. at 618.)

Dr. Charles noted that

she had diagnosed Plaintiff with major depressive disorder, with
psychotic features, and anxiety disorder, and that Plaintiff’s
prognosis was fair with social support, medication management,
and psychotherapy.

(Id.)

Dr. Charles stated that her diagnoses

were supported by mental status examinations she conducted.
(Id. at 620.)

Dr. Charles noted that Plaintiff’s symptoms

included depressed mood, anxiety, paranoid delusions, low
frustration tolerance, problems with attention and
concentration, trouble with recent memory, and fatigue.

(Id.)

Dr. Charles indicated that Plaintiff could travel to and from
home and bathe himself but could not prepare meals.
621.)

(Id. at

Dr. Charles noted that Plaintiff was taking Xanax, which
7

made him drowsy; Zoloft, which caused Plaintiff to gain weight;
and Risperdal, which caused Plaintiff to suffer from somnolence.
(Id. at 623.)

Dr. Charles indicated that Plaintiff was

incapable of tolerating even low stress jobs, would need to take
unscheduled breaks, and would likely be absent from work more
than three times per month.

(Id. at 624.)

On March 25, 2015, Dr. Charles completed a
“Psychological/Psychiatric Disability Questionnaire” sent to her
by Plaintiff’s representative.

(Id. at 667-677.)

Dr. Charles

noted that she had seen Plaintiff monthly from December 2013
through March 2015.

(Id. at 667.)

Dr. Charles listed

Plaintiff’s diagnoses as major depression, with psychotic
features, and anxiety disorder.

(Id.)

Dr. Charles also noted

that Plaintiff suffered from auditory hallucinations and
paranoid delusions.

(Id.)

Dr. Charles stated that Plaintiff

had a then-current GAF score of 40, with the lowest in the past
year being 35 and the highest in the last year being 50.

(Id.)

Dr. Charles wrote that Plaintiff’s primary symptoms were
depressed mood, anxiety, poor concentration, and poor attention
and memory, feelings of guilt, low self-esteem, low energy and
anhedonia (i.e., the reduced ability to experience pleasure).
(Id. at 669.)

Dr. Charles noted that Plaintiff’s prognosis was

fair and that Plaintiff “needs family, social[,] and continuous
treatment for improvement.”

(Id. at 668.)
8

Dr. Charles noted

that Plaintiff lacked motivation and mistrusted both people and
his environment.

(Id.)

Dr. Charles made findings with respect to Plaintiff’s
limitations in various areas:
•

Understanding and Memory: Plaintiff was “moderately
limited” in his ability to: “remember locations and worklike procedures”; “understand one or two-step
instructions.” (Id. at 670.) Plaintiff was “markedly
limited” in his ability “to understand and remember
detailed instructions.” (Id.)

•

Sustained Concentration and Persistence: Plaintiff was
“moderately limited” in his ability to: “carry out simple
one or two-step instructions”; “maintain attention and
concentration for extended periods”; and “perform
activities within a schedule, maintain regular
attendance, and be punctual within customary tolerance.”
(Id. at 671.) Plaintiff was “markedly limited” in his
ability to: “carry out detailed instructions”; “sustain
ordinary routine without supervision”; “work in
coordination with or proximity to others without being
distracted by them”; “make simply work decisions”; and
“complete a normal workweek without interruptions from
psychologically based symptoms.” (Id.)

•

Social Interactions: Plaintiff was “mildly limited” in
his ability to “maintain socially appropriate behavior
and to adhere to basic standards of neatness and
cleanliness.” (Id. at 674.) Plaintiff was “moderately
limited” in his ability to “ask simply questions/request
assistance.” (Id.) Plaintiff was “markedly limited” in
his ability to: “interact appropriately with the general
public”; “accept instructions and respond appropriately
to criticism from supervisors”; and “get along with coworkers or peers without distracting them or exhibiting
behavioral extremes.” (Id.)

•

Adaptation: Plaintiff was “mildly limited” in his
ability to “be aware of normal hazards and take
appropriate precautions.” (Id.) Plaintiff was “markedly
limited” in his ability to “respond appropriately to
changes in the work setting”; “travel to unfamiliar

9

places or use public transportation”; and “set realistic
goals or make plans independently.” (Id.)
Overall, Dr. Charles concluded that Plaintiff was
“[i]ncapable of even ‘low stress’” work due to the fact that he
suffered from “paranoia, depress[ion], poor concentration, [and]
poor memory.”

(Id. at 676.)

Dr. Charles stated that Plaintiff

would be absent more than three times per month.
ii.

(Id.)

Consultative Examiner – Sally Morcos, Psy.D.

Sally Morcos, Psy.D. (“Dr. Morcos”), conducted a
consultative examination of Plaintiff on July 25, 2013.
326-329.)

The report noted the following findings.

(Id. at

Plaintiff

reported to Dr. Morcos that he had difficulty sleeping, did not
like to be around people, and had been very depressed since
divorcing four years earlier.

(Id. at 326.)

Plaintiff also

told Dr. Morcos that he experienced short-term and long-term
memory deficits.

(Id. at 327.)

Plaintiff was neatly dressed

and well-groomed, had tense posture and normal behavior, and
made appropriate eye contact.

(Id.)

Plaintiff’s thought

processes were “coherent and goal directed with no evidence of a
thought disorder.”

(Id.)

Plaintiff had a slightly agitated

affect and reported that he was in pain.

(Id.)

mood was neutral and he was fully oriented.

Plaintiff’s

(Id.)

Plaintiff’s attention and concentration were intact,
although he committed one error when performing serial threes.

10

(Id. at 328.)

Plaintiff’s recent and remote memory skills were

impaired due to emotional distress secondary to pain.

(Id.)

Plaintiff could recall three of three objects immediately and
one of three objects after a delay.

(Id.)

Plaintiff’s

intellectual functioning was in the average range and his
general fund of information was appropriate to experience.
(Id.)

Plaintiff had clear insight and judgment.

(Id.)

Plaintiff reported that he could dress, shower and
groom himself.

(Id.)

Plaintiff stated that he could prepare

foods, do laundry, shop, manage money, and take public
transportation unassisted.

(Id.)

Plaintiff indicated that he

could not clean, because cleaning required bending over, and
that his sister cleaned for him.

(Id.)

Plaintiff reported that

he did not have any friends and did not like talking to people.
(Id.)

Plaintiff did not have hobbies and spent his days looking

out the window, and would sometimes go for a walk in the park.
(Id.)
Dr. Morcos opined that Plaintiff had no limitations in
following and understanding simple directions and instructions,
performing simple and complex tasks independently, maintaining
attention and concentration, maintaining a regular schedule,
learning new tasks, and making appropriate decisions.

(Id.)

Dr. Morcos further opined that Plaintiff had mild-to-moderate
limitations in relating adequately to others and a moderate
11

limitation in dealing with stress, due to his depressive
symptoms.

(Id.)

Dr. Morcos noted that “the results of the

examination appear to be consistent with psychiatric problems,
but in and of itself, this does not appear to be significant
enough to interfere with [Plaintiff’s] ability to function on a
daily basis.

(Id. at 329.)

Dr. Morcos diagnosed depressive

disorder, not otherwise specified, and found Plaintiff’s
prognosis to be between fair and good “given [that] [Plaintiff]
is not currently enrolled in treatment.”

(Id.)

C. Administrative Hearing Testimony
As noted above, ALJ Solomon held a hearing on April 7,
2015 to determine whether Plaintiff qualified as “disabled”
within the meaning of the Act. (Id. at 77-102.)

At the hearing,

ALJ Solomon received the testimony of (i) Plaintiff and (ii)
Melissa Fass-Karlin, a vocational expert.
i. Plaintiff’s Testimony
At his hearing, Plaintiff testified to the following
facts.

Plaintiff last worked in 2011 and became disabled in

December 31, 2012, when he was unable to get out of bed for 3
days due to back pain.

(Id. at 82-83.)

As of the hearing date,

Plaintiff resided with his sister and his nephew.

(Tr. 84.)

Plaintiff took the subway to the hearing, but
Plaintiff’s sister accompanied him because he cannot travel
alone because his knee locks up.
12

(Id.)

Plaintiff cannot shower

or dress without assistance because he has difficulty bending.
(Id. at 85-86.)

Plaintiff can shave and comb his hair, but he

cannot do any household chores like cooking, cleaning, or
laundry.
hand.

(Id. at 86.)

(Id. at 93.)

Plaintiff had problems using his left

Plaintiff can eat soup or salad on his own

but his sister would need to cut steak or use a knife for him.
(Id.)
Plaintiff is frustrated because of constant pain and
spends the day walking around the living room, lying on the
floor, or sitting.

(Id. at 87.)

He does not watch TV or listen

to the radio because noise bothers him and he gets frustrated
and angry.

(Id.)

Plaintiff had two surgeries.

(Id.)

He took

pain medication, but it made him sleepy and made him feel like
he would vomit sometimes.

(Id. at 88.)

Plaintiff could

maintain one position for “maybe a half an hour”.

(Id.)

Plaintiff saw his psychiatrist, Dr. Charles, once a
month, but had also seen a therapist three times a week.
at 90.)

(Id.

Plaintiff gets anxiety and frustration; when he gets

upset, he will shake, but the medication will calm him down.
(Id. at 91.)

Plaintiff gets frustrated because of the pain and

does not like to talk to people or be around people because they
bother him.

(Id.)

Plaintiff worked as a waiter for 15 to 20 years.
at 94.)

(Id.

Plaintiff also worked as a maintenance person in 2003
13

for less than a year, vacuuming carpets in office buildings and
taking out garbage.
ii.

(Id. at 95-96.)

Vocational Expert Testimony of Melissa FassKarlin

Melissa Fass-Karlin (“Ms. Fass-Karlin”) testified as a
vocational expert.

As Ms. Fass-Karlin explained, Plaintiff had

past relevant work as a waiter, which was light work with an
Specific Vocational Preparation (“SVP”) of 3, which is listed
under Dictionary of Occupational Titles (“DOT”) 311.477-030, and
as a cleaner, which was medium work with an SVP of 2, listed
under DOT 381.687-018.

(Id. at 97.)

ALJ Solomon asked Ms. Fass-Karlin if there were jobs a
hypothetical individual could perform if they were limited to
light or sedentary work, and with the limitations of occasional
overhead reaching with the non-dominant left upper extremity; if
they could remember, understand, and carry out simple
instructions; make simple work-related decisions; maintain
attention and concentration for rote work; maintain a regular
schedule; and perform a low stress job defined as one with no
close interpersonal contact with the general public.
97-98.)

(Id. at

Ms. Fass-Karlin identified three potential jobs for

this hypothetical individual at the light level: assembler of
small products, routing clerk, and mail clerk.

(Id. at 98.)

Ms. Fass-Karlin also identified three potential jobs for this

14

hypothetical individual at the sedentary level: bench hand,
addresser, and surveillance system monitor.

(Id. at 98-99.)

Standard of Review
Unsuccessful claimants for disability benefits may
bring an action in federal district court seeking judicial
review of the Commissioner’s denial of their benefits “within
sixty days after the mailing . . . of notice of such decision or
within such further time as the Commissioner of Social Security
may allow.”

42 U.S.C. §§ 405(g), 1383(c)(3).

A district court

reviewing the final determination of the Commissioner must
determine whether the correct legal standards were applied and
whether substantial evidence supports the decision.

See Schaal

v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998).
“‘A district court may set aside the Commissioner's
determination that a claimant is not disabled only if the
factual findings are not supported by ‘substantial evidence’ or
if the decision is based on legal error.’”

Burgess v. Astrue,

537 F.3d 117, 127 (2d Cir. 2008) (quoting Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000)).
‘more than a mere scintilla.

“Substantial evidence means
It means such relevant evidence as

a reasonable mind might accept as adequate to support a
conclusion.’”

Id. (quoting Halloran v. Barnhart, 362 F.3d 28,

31 (2d Cir. 2004)).

If there is substantial evidence in the

record to support the Commissioner’s factual findings, those
15

findings must be upheld.

42 U.S.C. § 405(g) (“The findings of

the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . . .”).

Inquiry

into legal error requires the court to ask whether “‘the
claimant has had a full hearing under the [Commissioner’s]
regulations and in accordance with the beneficent purposes of
the [Social Security] Act.’”

Moran v. Astrue, 569 F.3d 108, 112

(2d Cir. 2009) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d
Cir. 1990)).

The reviewing court does not have the authority to

conduct a de novo review, and may not substitute its own
judgment for that of the ALJ, even when it might have
justifiably reached a different result.

Cage v. Comm’r, 692

F.3d 118, 122 (2d Cir. 2012).
To receive disability benefits, a claimant must be
“disabled” within the meaning of the Act.
423(a), (d).

See 42 U.S.C. §§

A claimant meets this requirement when she is

unable 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.”

Id. § 423(d)(1)(A); Shaw, 221 F.3d at 131–32.

The

impairment must be of “such severity” that the claimant is
unable to do her previous work or engage in any other kind of
substantial gainful work.

42 U.S.C. § 423(d)(2)(A).
16

Pursuant to regulations promulgated by the
Commissioner, a five-step sequential evaluation process is used
to determine whether the claimant’s condition meets the Act’s
definition of disability.

See 20 C.F.R. § 404.1520.

This

process is essentially as follows:
[I]f the Commissioner determines (1) that the claimant is
not working, (2) that [s]he has a ‘severe impairment,’ (3)
that the impairment is not one [listed in Appendix 1 of the
regulations] that conclusively requires a determination of
disability, and (4) that the claimant is not capable of
continuing in [her] prior type of work, the Commissioner
must find [her] disabled if (5) there is not another type
of work the claimant can do.
Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhart, 335
F.3d 99, 106 (2d Cir. 2003) (alterations in original)); see also
20 C.F.R. § 404.152(a)(4).

At any of the previously mentioned

steps, if the answer is “no,” then the analysis stops and the
ALJ must find claimant not disabled under the Act.

See id.

During this five-step process, the Commissioner must
consider whether “the combined effect of any such impairment . .
. would be of sufficient severity to establish eligibility for
Social Security benefits.”

20 C.F.R. § 404.1523.

Further, if

the Commissioner does find a combination of impairments, the
combined impact of the impairments, including those that are not
severe (as defined by the regulations), will be considered in
the determination process.

20 C.F.R. § 416.945(a)(2).

17

In steps one through four of the sequential five-step
framework, the claimant bears the “general burden of proving . .
. disability.”

Burgess, 537 F.3d at 128.

At step five, the

burden shifts from the claimant to the Commissioner, requiring
that the Commissioner show that, in light of the claimant’s
residual functional capacity, age, education, and work
experience, the claimant is “able to engage in gainful
employment within the national economy.”

Sobolewski v. Apfel,

985 F. Supp. 300, 310 (E.D.N.Y. 1997).
“The Commissioner must consider the following in
determining a claimant’s entitlement to benefits: ‘(1) the
objective medical facts [and clinical findings]; (2) diagnoses
or medical opinions based on such facts; (3) subjective evidence
of pain or disability . . . ; and (4) the claimant’s educational
background, age, and work experience.’”

Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (alterations in original)).
Discussion
Plaintiff argues that ALJ Solomon: (1) erred when he
found that Plaintiff did not meet Listing 12.04; (2) failed to
properly evaluate the opinion of Plaintiff’s treating
psychiatrist; and (3) erred in assessing Plaintiff’s RFC without
following the guidelines set forth in SSR 96-8p.

(See generally

ECF No. 16, Memorandum of Law in Support of Plaintiff’s Motion
18

for Judgement on the Pleadings.)

Defendant argues that ALJ

Solomon correctly determined that Plaintiff did not meet Listing
12.04, that ALJ Solomon properly weighed the medical evidence,
and that ALJ Solomon properly determined Plaintiff’s RFC.

(ECF

No. 24, Memorandum of Law in Support of the Commissioner’s
Motion for Judgment on the Pleadings.)
I.

ALJ Solomon Failed to Properly Consider Listing 12.04
Plaintiff argues that ALJ Solomon failed to properly

consider whether Plaintiff met the requirements of Listing 12.04
for affective disorders.

The Court need not address this

argument as the action must be remanded for the reasons set
forth below, and insofar as a determination of that issue hinges
upon the proper weight of the relevant medical opinions.
II.

ALJ Solomon Erred in Evaluating Plaintiff’s Medical
Evidence
Plaintiff argues that ALJ Solomon did not properly

weigh the medical evidence.

Specifically, Plaintiff argues that

ALJ Solomon erred in giving limited weight to the opinion of
Plaintiff’s treating psychiatrist, Dr. Charles.

The Court

agrees with Plaintiff.
The Commissioner must evaluate every medical opinion
in the record, “[r]egardless of its source,” when determining
whether an individual is disabled.

20 C.F.R. § 404.1527(c).

The Commissioner will give the medical opinion of a treating

19

source “controlling” weight if the Commissioner finds that the
opinion as to the “nature and severity of [the claimant’s]
impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in [the] case record.” 20
C.F.R. § 404.1527(c)(2); see also Burgess, 537 F.3d at 128
(describing the principle as the “treating physician rule”
(citations omitted)); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999) (“When . . . substantial evidence in the record conflicts
with the treating physician’s opinion, however, that opinion
will not be deemed controlling.”).
Importantly, the regulations set forth various
“factors” that ALJs must consider in determining how to weigh
medical opinions, including treating physician opinions.
C.F.R. § 404.1527(c).

See 20

When a treating physician’s opinion is

not given controlling weight, the ALJ must “comprehensively set
forth his [or her] reasons for the weight assigned to a treating
physician’s opinion.”

Burgess, 537 F.3d at 129 (quoting

Halloran, 362 F.3d at 33); accord 20 C.F.R. § 404.1527(c)(2).
Failure to provide “good reasons” for the weight assigned to a
treating physician’s opinion constitutes grounds for remand.
Halloran, 362 F.3d at 33 (“We do not hesitate to remand when the
Commissioner has not provided ‘good reasons’ for the weight
given to a treating physicians opinion and we will continue
20

remanding when we encounter opinions from ALJ’s that do not
comprehensively set forth reasons for the weight assigned to a
treating physician’s opinion.”).
Applicable regulations do not exhaustively define what
constitutes a “good reason” for assigning a particular weight to
a treating physician’s opinion.

But “to override the opinion of

the treating physician, . . . the ALJ must explicitly consider,
inter alia: (1) the frequen[c]y, length, nature, and extent of
treatment; (2) the amount 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 v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)

(citing Burgess, 537 F.3d at 129); see also 20 C.F.R. §
404.1527(c)(2)-(6).

The ALJ must also consider whether the

source of the medical opinion examined the claimant, and
opinions from examining sources are “[g]enerally . . . give[n]
more weight” than opinions from non-examining sources.
C.F.R. § 404.1527(c)(1).

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The foregoing factors also guide the

ALJ’s evaluation of other medical sources’ opinions.

Canales v.

Comm’r of Soc. Sec., 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010)
(“SSR 06–03p further directs ALJs to use the same factors for
the evaluation of the opinions of acceptable medical sources to
evaluate the opinions of medical sources who are not acceptable

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medical sources, such as licensed social workers.” (internal
quotation marks omitted)); see also 20 C.F.R. § 404.1527(c).
The reasons stated by the ALJ for assigning limited
weight to Dr. Charles’ opinion do not constitute “good reasons”
for departing from the treating physician’s opinion.

ALJ

Solomon made only cursory statements as to his reasons for
departing from Dr. Charles’ opinion, and did not cite specific
pages or notations in the record.

Moreover, the Court reviewed

the record and found ALJ Solomon’s statements to be erroneous.
First, ALJ Solomon noted that “the treating
psychiatrist indicated that [Plaintiff’s] psychiatric
difficulties were related to social, interpersonal, and economic
stressors.

[Dr. Charles] reported that [Plaintiff’s] condition

was well-controlled with medication and psychotherapy
treatment.”

(Tr. 66.)

ALJ Solomon then noted that “during the

treatment period, the mental status evaluations remained within
normal limits, with no noted psychiatric limitations.”

(Id.)

ALJ Solomon’s assertion that Dr. Charles stated that Plaintiff’s
condition was well-controlled with medication is not supported
by the medical records.

To the contrary, in the Lower Extremity

Questionnaire filled out by Dr. Charles, she noted that
Plaintiff had a fair prognosis with social support, medication
management, and psychotherapy.

(Id. at 618.)

In the same

report, Dr. Charles noted that Plaintiff suffered from “chronic
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medical and mental conditions requiring continuous care.”
at 625.)

(Id.

Moreover, in each of Plaintiff’s mental status

examinations, it was noted that Plaintiff was tense and anxious.
ALJ Solomon’s assertion that Plaintiff’s mental status
examinations were all within normal limits is not supported by
the records.

Though Plaintiff might have had symptoms that

waxed and waned, he was at times found to suffer from psychosis,
and on almost every occasion was found to be tense, wary,
anxious, or complaining of “excessive worrying.”

(See generally

id. at 626-664.)
Second, ALJ Solomon noted that “at all times,
[Plaintiff] reported that he was fully independent in all
activities of daily living.”

(Id. at 66.)

similarly finds no support in the record.

This assertion
ALJ Solomon cites no

specific exhibit or statement in the record to support this
claim.

Moreover, Plaintiff’s written and oral testimony

contradicts this finding.

Plaintiff completed a function report

in which he stated that he had problems with dressing and
bathing.

(Id. at 224.)

Plaintiff noted that he can do laundry

and cook with assistance and does not have the patience to cook
for too long.

(Id. at 226.)

At the hearing, Plaintiff

testified that he is unable to shower or dress himself because
he has difficulty bending.

(Id. at 85-86.)

Plaintiff testified

that he can shave and comb his hair, but that he cannot do any
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household chores like cooking, cleaning or laundry.
86.)

(Id. at

Plaintiff testified that his sister accompanied him to the

hearing because he cannot take public transportation alone.
(Id. at 84.)

Plaintiff testified that he gets anxiety and

frustration and that when he gets upset, he will shake, but the
medication will calm him down.

(Id. at 91.)

Plaintiff

testified that he gets frustrated because of the pain and that
he does not like to talk to people or be around people because
they bother him.

(Id.)

And Plaintiff testified that he had

problems using his left hand, and that he can eat soup or salad
on his own, but that his sister would need to cut steak or use a
knife for him.

(Id. at 93.)

These statements are starkly at

odds with the ALJ’s findings that Plaintiff “at all times stated
that he was independent in activities of daily living.”
Finally, ALJ Solomon noted that the GAF scores which
Dr. Charles assigned Plaintiff were inconsistent with Dr.
Charles’ prior opinions, rendering her opinion of little weight.
(Id.)

This reasoning fails insofar as the Second Circuit

recently ruled in Estrella v. Berryhill, 925 F.3d 90 (2d Cir.
2019), that an ALJ erred in assigning little weight to a
treating psychiatrist’s opinion simply because the psychiatrist
had assigned a GAF score of 70, which the ALJ felt was
inconsistent with the opinion rendered.

The fact that, in one

instance, the plaintiff had been assigned a benign score did
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“not provide good reasons for assigning little weight to
[medical source] opinion.

The Social Security Administration

has explained that [u]nless [a] clinician clearly explained the
reasons behind his or her GAF rating, and the period to which
the rating applies, it does not provide a reliable longitudinal
picture of the claimant’s mental functioning for a disability
analysis.”

Id. at 97-98 (internal quotation marks omitted).

The Second Circuit cited the language of Burgess, making clear
that the ALJ must consider, inter alia, “(1) the frequen[cy],
length, nature, and extent of treatment; (2) the amount 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.”

Id. at 96.

In this instance,

ALJ Solomon failed to consider those factors.

Dr. Charles

treated Plaintiff regularly for a considerable length of time,
with monthly visits, and ALJ Solomon failed to address the fact
that Dr. Charles is a board-certified psychiatrist with a
specialty in psychiatry.
Thus, the Court finds that ALJ Solomon has failed to
give “good reasons” for giving limited weight to the opinion of
Dr. Charles, Plaintiff’s treating psychiatrist.

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III. The ALJ’s RFC Is Not in Accordance with the provisions of
SSR 96-8p
Plaintiff argues that ALJ Solomon failed to adhere to
the requirements set forth in SSR 96-8p.

The Court agrees with

Plaintiff that the ALJ failed to identify Plaintiff’s functional
limitations or restrictions and assess Plaintiff’s work-related
abilities, function-by-function.

The Court remands this action

for this reason and for the reasons set forth above.
Conclusion
Federal regulations provide that “[t]he court shall
have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”

42 U.S.C. § 405(g).

Remand is warranted where “there are gaps in the administrative
record or the ALJ has applied an improper legal standard.”
Callahan v. Rosa, 168 F.3d at 82–83 (quoting Pratts, 94 F.3d at
39 (internal quotation marks omitted)).

Remand is particularly

appropriate where further findings or explanation will clarify
the rationale for the ALJ’s decision.

Pratts, 94 F.3d at 39.

The Court finds that ALJ Solomon erred in failing to
give good reason for giving limited weight to the opinion of Dr.
Charles, Plaintiff’s treating psychiatrist.

Additionally, the

Court notes that the ALJ failed to make a finding at Step Two as

26

to whether Plaintiff’s Generalized Anxiety Disorder constituted
a severe impairment.

For the foregoing reasons, the Court

remands this case for further proceedings consistent with this
Memorandum and Order.

On remand, the ALJ must:

(1) Properly weigh the opinion evidence of the
treating and examining sources;
(2) Consider whether Plaintiff’s Generalized
Anxiety Disorder constitutes a severe impairment; and
(3) Consider whether Plaintiff meets or equals
Listing 12.04, Listing 12.06 and/or Listing 12.03; and
(4) Assess Plaintiff’s functional limitations and
restrictions and work-related abilities on a functionby-function basis as required by SSR 96-8p.
SO ORDERED.
Dated:

Brooklyn, New York
January 17, 2020
/s/
Hon. Kiyo A. Matsumoto
United States District Judge

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