Hopkins v. Berryhill

Filing 25

MEMORANDUM AND ORDER: For the reasons set forth herein, the Commissioner's cross-motion for judgment on the pleadings is denied and Hopkins's motion for judgment on the pleadings is granted to the extent it seeks remand. This matter is rema nded to the Commissioner of Social Security for further proceedings consistent with this Order. The Clerk of Court is respectfully directed to enter judgment accordingly and to close this case. Ordered by Chief Judge Roslynn R. Mauskopf on 5/18/2020. (Taronji, Robert)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANN MARIE HOPKINS,
Plaintiff,

MEMORANDUM AND ORDER
17-CV-6138 (RRM)

- against NANCY A. BERRYHILL, ACTING COMMISSIONER
OF SOCIAL SECURITY,

Defendant.
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ROSLYNN R. MAUSKOPF, Chief United States District Judge.
Plaintiff Ann Marie Hopkins brings this action against the Commissioner of the Social
Security Administration (“the Commissioner”) pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3),
seeking review of the Commissioner’s determination that she is not entitled to disability
insurance benefits (“SSDI”) under Title II of the Social Security Act (“the Act”) and
supplemental security income benefits (“SSI”) under Title XVI of the Act. Hopkins and the
Commissioner have cross-moved for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c). (Def.’s Cross Mot. (Doc. No. 17); Pl.’s Mot. (Doc. No. 15).) For the
reasons set forth below, the Commissioner’s motion is denied, Hopkins’s motion is granted, and
the matter is remanded to the Commissioner for further proceedings consistent with this
Memorandum and Order.
BACKGROUND
I.

Hopkins’s History
On May 20, 2019, the parties filed a joint stipulation of facts. (Doc. No. 24.) The facts

set forth therein are hereby incorporated in this decision by reference. Additional facts relevant
to this decision are outlined below.

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Hopkins was born in Buffalo, New York, on October 26, 1960. (Transcript (“Tr.”) (Doc.
No. 21) at 27, 150, 156, 223.) She completed high school and graduated from college in 1980
with a bachelor’s degree in environmental advocacy. (Tr. at 31, 34.) Hopkins worked as a
secretary for multiple law firms and worked through a series of temp agencies. (Id. at 31–32,
166, 356.) Hopkins was hospitalized for two weeks in March 2009 due to clinical depression
and a suicide attempt. (Id. at 151, 156, 165.) Hopkins worked in 2010, 2011, 2012, and 2013, as
a sculpture model for an art class at Wagner College, generally working one or two days every
three months. (Id. at 28–29, 465–66.) Hopkins testified that she received $60 per day for the
work. (Id. at 360.) In total, Hopkins earned $480.00 in 2010 for 8 days of work, $240.00 in
2011 for 4 days of work, $240.00 in 2012 for 4 days of work, and $720.00 in 2013 for 12 days of
work. (Id. at 465.) At the time Hopkins filed her application for benefits, the Social Security
staff member noted that Hopkins was “not well groomed” and her appearance “was not well put
together.” (Id. at 162.)
II.

Hopkins’s Application for Benefits
Hopkins filed a claim for both disability insurance benefits and SSI on July 2, 2009. (Tr.

at 151, 156.) Hopkins stated that her onset of disability was March 1, 2009. (Id. at 151.)
Hopkins further stated that she was disabled as a result of a nervous breakdown, clinical
depression, and a suicide attempt. (Id. at 151, 156, 165.) The SSA denied Hopkins’s claims on
December 1, 2009, finding that she did not meet the definition of disability. (Id. at 73.) Hopkins
requested a hearing before an administration law judge on December 22, 2009. (Id. at 79.)
Hopkins appeared at a hearing before ALJ Richard C. Dorf. (Id. at 15–59.) ALJ Dorf issued a
decision on January 7, 2011, denying Hopkins’s applications. (Id. at 52–66.) Hopkins appealed

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the decision to the Appeals Council, which subsequently denied her appeal, rendering ALJ
Dorf’s decision final. (Id. at 1–5, 9–14.)
Hopkins filed a civil action in this Court, Hopkins v. Astrue, 12-cv-4712 (BMC), on
September 20, 2012. (Tr. at 386–96.) In an Order issued on April 2, 2013, Judge Cogan
remanded the case with the direction that the ALJ was to further develop the record, evaluate and
weigh the opinions of the treating physicians in accordance with the Commissioner’s rules and
regulations, and obtain vocational expert testimony regarding Hopkins’s non-exertional
impairments. (Id. at 397–98.)
On October 13, 2013, Hopkins appeared with counsel for a hearing before ALJ Dina
Loewy. (Tr. at 347–83.) At the time of the hearing, there had been no further development of
the record, contrary to Judge Cogan’s Order. On October 22, 2014, ALJ Loewy issued a
decision denying the Hopkins’s claim. (Id. at 327–46.) Hopkins appealed ALJ Loewy’s
decision. The Appeals Council denied Hopkins’s request for review on July 8, 2013, making
ALJ Loewy’s decision final. (Id. at 318–26.) On October 20, 2017, Hopkins filed this action
challenging the Commissioner’s decision. (Doc. No. 1.)
III.

Medical Opinion Evidence
On May 20, 2019, the parties filed a joint stipulation of facts. (Doc. No. 24.) The facts

contained therein are incorporated by reference. The Court addresses other facts to the extent
they are relevant to this opinion.
A.

Medical Opinion of Consultative Examiner Dana Jackson, PhD

On October 19, 2009, Hopkins was examined by psychologist Dana Jackson, PhD,
pursuant to the request of the Commissioner. (Tr. at 222–25.) Dr. Jackson noted that Hopkins
was brought to the appointment. Hopkins presented with complaints of depression, anxiety, and

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PTSD. (Id. at 222.) Hopkins reported that when depressed she experienced episodes of
increased sleep, crying spells, and suicidal thoughts. (Id. at 223.) Hopkins further reported that
she attempted suicide in 2008 and 2009 and was presently taking Wellbutrin and Prozac. (Id.)
Hopkins stated that she had worked at multiple jobs, but could not keep a job because of her
mental health issues. (Id.)
Dr. Jackson’s mental status examination found Hopkins’s appearance, behavior, and
speech to be normal. (Id. at 223.) Hopkins reported having no delusions or hallucinations. (Id.
at 223–24.) Dr. Jackson noted that Hopkins was oriented and that she had good remote memory
and fair recent memory. (Id. at 224.) Dr. Jackson opined that Hopkins’s attention and
concentration were within normal limits and that Hopkins’s intelligence was average. (Id.) Dr.
Jackson opined that Hopkins could cook, clean, shop, take public transportation, and socialize
with others. (Id.) In the section of the report for diagnosis, Dr. Jackson wrote, “Rule out
depressive disorder not otherwise specified.” (Id.) Dr. Jackson recommended that Hopkins
continue with treatment and medication and opined that Hopkins’s prognosis was very good.
(Id. at 225.) Dr. Jackson stated that Hopkins’s ability to interact with others was intact. (Id.)
Dr. Jackson opined that Hopkins did not meet the criteria for PTSD or anxiety and suffered from
mild depression. (Id.)
B.

Medical Opinion of State Agency Psychiatric Consultant J. Kessel, M.D.

On November 30, 2009, state agency psychiatric consultant J. Kessel, M.D., a
psychiatrist by designation, reviewed Hopkins’s file. (Tr. at 227–46.) Dr. Kessel opined that a
residual functional capacity (“RFC”) evaluation was necessary and that Hopkins suffered from
an affective disorder. (Id. at 227.) Dr. Kessel further opined that Hopkins did not suffer from an
organic mental disorder or psychotic disorder and that Hopkins suffered from a mood disorder

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that did not satisfy the diagnostic criteria for major depressive disorder, as she had benefitted
from treatment. (Id. at 228–30.) Dr. Kessel also concluded that Hopkins did not suffer from
mental retardation, anxiety disorders, somatoform disorders, or personality disorders. (Id. at
231–34.) Dr. Kessel stated that Hopkins suffered from a substance addiction disorder and noted
a history of alcohol abuse, but Hopkins denied any active substance abuse. (Id. at 235.) Dr.
Kessel opined that Hopkins did not suffer from an autistic disorder. (Id. at 236.)
Dr. Kessel determined that Hopkins had mild limitations in activities of daily living; mild
limitations in maintaining social functioning; mild limitations in maintaining concentration,
persistence and pace; and had no repeated episodes of deterioration of extended duration. (Id. at
237.) Dr. Kessel opined that the C criteria were not met. (Id. at 238.) Dr. Kessel also opined
that Hopkins was not significantly limited in remembering locations and work procedures, in
understanding and remembering short and simple instructions, in carrying out short and simple
instructions, in maintaining attention and concentration, in keeping a regular schedule, in
sustaining an ordinary schedule without supervision, in working in coordination with others
without being distracted, in completing a normal workday or workweek, in appropriately
interacting with the public, in asking simple questions, in accepting instruction or criticism from
supervisors, in getting along with coworkers without distracting them, in maintaining socially
appropriate behavior, in being aware of hazards and taking precautions, in using public
transportation or traveling to unfamiliar places, in setting realistic goals, or in working
independently of others. (Id. at 241–42.) Dr. Kessel opined that Hopkins had a moderate
limitation in understanding and remembering detailed instructions, in carrying out detailed
instructions, and in responding appropriately to changes in the workplace. (Id. at 242.)

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Dr. Kessel added that Hopkins was noted to have shown a good response to treatment,
had fair ADL’s, was independent in travel, had some social contacts, was not psychotic or
suicidal, and was cognitively intact. (Id. at 243.) While Dr. Kessel noted that Hopkins had some
limitations in adaptation, Dr. Kessel specified that they appeared to be less than significant. (Id.)
C.

Medical Opinion of Treating Psychiatrist Elpidio Marlon Garcia, M.D.

On October 13, 2010, Dr. Elpidio Marlon Garcia, M.D., a psychiatrist, completed a
Residual Functional Capacity Questionnaire. (Tr. at 252–55.) Dr. Garcia noted that Hopkins
had been in treatment at the hospital since 2004 and had been admitted for treatment of severe
mental illness on January 2, 2009. (Id. at 252.) Dr. Garcia opined that Hopkins suffered from
recurrent major depression and severe anxiety. (Id.)
Dr. Garcia stated Hopkins suffered from symptoms “related to biological causes of
mental illness as well as physical abuse and emotional abuse by men.” (Id. at 252.) According
to Dr. Garcia, Hopkins had a history of depression and anxiety, poor coping skills, and was both
“hopeless” and “helpless” at the time of examination. (Id.) Dr. Garcia stated that Hopkins’s
condition was severe enough to necessitate weekly treatment and that she had been hospitalized
from April 6, 2010, through April 15, 2010, for a suicide attempt. (Id.) Dr. Garcia noted that
Hopkins was being evaluated at the George A. Jervis Clinic and was suffering from Asperger’s
or autism. (Id. at 253.)
Dr. Garcia explained that it would be difficult for Hopkins to travel alone while
symptomatic and “paranoid,” as travel under those circumstances had caused problems in the
past. (Id. at 253.) Dr. Garcia opined that Hopkins had a marked limitation in activities of daily
living; an extreme limitation in maintaining social functioning; a marked limitation in
concentration, persistence and pace; and repeatedly experienced episodes of decompensation of

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extended duration. (Id. at 254.) Dr. Garcia stated that Hopkins had no psychotic thoughts, but
was sometimes unable to function outside her home due to anxiety. (Id.) Dr. Garcia noted a
marked limitation in understanding, remembering and carrying out instructions; a marked
limitation in responding to supervision; a severe limitation in responding appropriately to coworkers; a marked to severe limitation satisfying normal attention and production rates; a severe
limitation in the ability to perform complex tasks; and a marked limitation in the ability to
perform simple tasks. (Id. at 254–55.) Finally, Dr. Garcia noted that when severely
symptomatic Hopkins would “completely break-down [sic].” (Id. at 255.)
D.

Joint Medical Opinions of Elpidio Garcia, M.D. and Digna McGrail, LCSW

On October 13, 2011, Dr. Garcia and licensed clinical social worker Digna McGrail
completed a Medical Evaluation form. (Tr. at 313–17.) Dr. Garcia and McGrail noted that
Hopkins was diagnosed with bipolar disorder and a personality disorder and that Hopkins had
been diagnosed at the George A. Jervis Clinic with a Communication Disorder/Asperger’s. (Id.
at 313.) Dr. Garcia and McGrail also noted that Hopkins had experienced psychosis. (Id.) They
noted that the Hopkins’s impairment had lasted or could be expected to last 12 months. (Id. at
314.)
Dr. Garcia and McGrail opined that in the area of daily living activities Hopkins had
marked difficulty with grooming, housecleaning, shopping, cooking, paying bills, using
telephones, planning daily activities, initiating and participating in activities, keeping
appointments, and interacting with others. (Id. at 315.) They opined that with regard to social
functioning Hopkins had marked difficulty communicating clearly and effectively, getting along
with family members, making and getting along with friends, getting along with strangers,
getting along with others, showing consideration for others, displaying awareness of others’

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feelings, responding to those in authority, holding a job, avoiding being fired, avoiding
altercations, avoiding eviction, avoiding social isolation, and interacting in groups. (Id. at 315–
316.) Dr. Garcia and McGrail stated that Hopkins was “extremely sensitive.” (Id. at 316.) They
opined that she experienced deficiencies of concentration and pace, and at times could not
process things—although she was very intelligent. (Id. at 316.) They also opined that Hopkins
experiences episodes of deterioration and exhibits symptoms of withdrawal and psychotic
behavior. (Id.) They wrote that she can become depressed, frustrated, and suicidal if lacking
support and medication. (Id.) Dr. Garcia and McGrail opined that Hopkins needed to address
both her mental illness and her son’s mental illness. (Id.)
McGrail also wrote an undated letter countersigned by Dr. Garcia. (Id. at 495.) The
letter notes that Hopkins was diagnosed with major depression, recurrent, as well as a
communication disorder, which McGrail specifies is Asperger syndrome. (Id.) The letter also
states that Hopkins was diagnosed with Asperger syndrome at the George A. Jervis Clinic and
additionally that Hopkins suffers from a personality disorder. (Id.) The letter notes that Hopkins
has a GAF score of 56. (Id.) McGrail stated that Hopkins wished to be employed but suffered
from severe symptoms of anxiety and depression, which interfered with even minute tasks. (Id.)
McGrail also wrote a narrative letter dated April 19, 2012, which requested that Hopkins
receive in-home services in order to avoid hospitalization. (Id. at 496.) The letter states that
Hopkins was severely and persistently mentally ill, that Hopkins had been evaluated at the
George A. Jervis Clinic and diagnosed with Asperger’s, and that the condition exacerbated
Hopkins’s severe anxiety and major depression. (Id.)

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E.

Medical Opinion of Consultative Examiner Brickell Quarles, PhD

On August 31, 2013, Hopkins was examined by psychologist Brickell Quarles, PhD,
pursuant to the request of the Commissioner. (Tr. at 485–89, 490–91.) Dr. Quarles noted that
Hopkins took the bus to the appointment. (Id. at 485.) According to Dr. Quarles, Hopkins
reported that she suffered from clinical depression and had been diagnosed with PTSD and with
Asperger’s around the age of 50. (Id.) Dr. Quarles noted that Hopkins reported depressive
symptoms of oversleeping, isolating herself, being easily annoyed, crying spells, fair
concentration, and variable appetite. (Id. at 486.) Dr. Quarles added that Hopkins reported both
suicide attempts and symptoms of anxiety, including freezing up when talking to others. (Id.)
Hopkins also reported problems with authority figures. (Id.) Dr. Quarles noted that Hopkins
reported a 10 to 14-day hospitalization, two suicide attempts, and a history of depression. (Id.)
Hopkins further reported she attended weekly therapy in both individual and group treatment,
family therapy with her son, and took the psychiatric medications Prozac and Abilify. (Id.) Dr.
Quarles noted that Hopkins reported past, but not recent, alcohol abuse, past physical and
emotional abuse, and no history of drug abuse. (Id.)
Dr. Quarles stated that Hopkins’s longest reported job was for two years. (Id. at 487.)
Hopkins stated she had a hard time getting along with bosses and either quit or got fired from
jobs due to her emotional problems. (Id.) In analyzing Hopkins’s mental status, Dr. Quarles
described Hopkins as calm, said she was fairly groomed and dressed, avoided eye contact, had
clear and coherent speech, had logical thoughts, did not display psychotic or delusional thinking,
had a neutral mood, and had a blunted affect. (Id. at 487–88.) Dr. Quarles opined that
Hopkins’s “allegation” appeared consistent with the examination. (Id. at 488.)

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Dr. Quarles diagnosed Hopkins with major depressive disorder, recurrent; history of
alcohol abuse; and “[r]ule out personality disorder, not otherwise specified.” (Id. at 488.) Dr.
Quarles recommended that Hopkins continue with both therapy and medication. (Id. at 489.)
Dr. Quarles added that therapy would help Hopkins gain insight into both her problems with
social functioning and emotional regulation. (Id.) According to Dr. Quarles, Hopkins’s
prognosis was fair given her long history of depression and abuse. (Id.) Dr. Quarles opined that
Hopkins could learn and follow simple directions; that Hopkins could perform simple tasks, but
appeared limited in maintaining attention and concentration; that Hopkins could maintain a
regular schedule, but her mental impairments would impact her ability to complete tasks; and
that Hopkins’s ability to learn and perform complex tasks might be affected by her attention and
concentration issues. (Id. at 489–91.) Dr. Quarles opined that Hopkins should continue to
participate in therapy and medication management in order to improve her emotional stability
and functioning. (Id. at 491.)
IV.

ALJ Hearing
The hearing in this matter began with ALJ Loewy advising Hopkins’s attorney that there

were no medical records in the file from after 2010. (Tr. at 352.) ALJ Loewy raised the
possibility of adjourning the hearing. (Id.) ALJ Loewy asked Hopkins if she was in treatment
and whether she had been hospitalized. (Id. at 354.) Hopkins advised that she saw Dr. Garcia
once a month, saw her psychologist once a week, and had not been hospitalized since 2009. (Id.)
ALJ Loewy decided to go forward with the hearing. (Id.)
Hopkins testified that she has two children and that her son, age 15, lives with her parttime. (Tr. at 355.) She testified that her son has Asperger’s and goes to a residential school.

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(Id.) Hopkins went on to describe the previously outlined facts regarding her educational
history, her work history, and her suicide attempt. (Id. at 356–64.)
Hopkins testified that since her son had been in a residential school, she did not go out
much and slept most of the day. (Id. at 364.) She stated that she has only one friend, who she
sees once or twice per month. (Id. at 365.) She testified that she reads, but not daily, and that
she had a drinking problem for about a year following 9/11. (Id. at 366.) She stated that she
takes the medications Abilify and Prozac. (Id. at 367.) Hopkins testified that she has problems
with authority figures and had bad reviews at jobs she stayed at long enough to be reviewed. (Id.
at 368.) She stated that she was told she was too direct when talking to others. (Id.) Hopkins
further stated that she did not understand what she did wrong and that she left jobs after she had
supervisors yell at her. (Id. at 368–69.) Although she was fired from numerous jobs, Hopkins
explained, the temp agency she used was able to get her other placements. (Id. at 369.) Hopkins
testified that she lifted 8–10 pounds when working as a data entry clerk. (Id. at 374.)
Hopkins stated that she became increasingly depressed after 2011, when the temp agency
would no longer place her in jobs. (Id. at 362.) Hopkins testified that she did not think she could
work because she cannot get out of the house much, has a lot of aches and pains, sleeps for 15 to
16 hours a day, and cannot concentrate. (Id.) Hopkins further testified that even small changes
in her routine were a huge ordeal for her. (Id. at 369.) Hopkins stated that she attempted suicide
several times and was hospitalized for the last attempt in 2009. (Id. at 362–63.) Hopkins
testified that her condition worsened after the suicide attempt and never got better. (Id. at 363–
64.) She no longer showers daily and takes a shower once a week. (Id. at 371.)
Vocational Expert Andrew Pasternak also testified at the hearing. (Id. at 374.) ALJ
Loewy recounted Hopkins’s testimony to the vocational expert, stating that Hopkins had a

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bachelor’s degree, testified that she was a legal secretary, and that she had self-employment
selling CD’s on eBay for which she lifted up to 20 pounds. (Id. at 373.) Pasternak testified that
Hopkins’s past work as a legal secretary was sedentary and had an SVP of six, and that
Hopkins’s work in data entry person required light exertion and had an SVP of four. (Id. at 375.)
ALJ Loewy directed Pasternak to consider a hypothetical individual with the same age,
education, and past work history as Hopkins, who had no exertional limits, but who was limited
to simple, routine tasks, with only occasional changes in routine and only occasional, superficial
contact with others. (Id. at 375–76.) Pasternak first noted that those hypothetical conditions
would eliminate Hopkins’s past work. (Id. at 376.) Pasternak then testified that such a
hypothetical person could work as a hand packager, DOT 920.587-018, medium work, SVP 2; as
a garment sorter, DOT 222.687-014, light, SVP 2; and an assembler, DOT 780.684-062, light,
SVP 2. (Id. at 377.) The vocational expert testified that if the additional limitation was added
that there be no fast-paced production quotas, the assembler job would be eliminated. (Id.)
Pasternak offered the alternate job of office cleaner, DOT 381.687-014, heavy, SVP 2. (Id. at
378.)
ALJ Lowey asked if being off task 20% of the day would eliminate these jobs. (Id. at
378.) The vocational expert testified that it would eliminate all of them. (Id. at 378.) Upon
questioning by Hopkins’s attorney, Mr. Pasternak testified that the maximum time allowed off
task would be 15%. (Id. at 379.) The vocational expert also stated that absences of one time per
month would be tolerated, but that two days absent per month would only be tolerated by some
employers and only with good reason. (Id.)

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V.

ALJ Loewy’s Decision
On October 22, 2014, ALJ Loewy issued her written decision finding Hopkins not

disabled within the meaning of the SSA. (Tr. at 327–46.) In the decision, ALJ Loewy followed
the familiar five-step process for making disability determinations:
[1] First, the Commissioner considers whether the claimant is currently engaged
in substantial gainful activity. [2] If he is not, the Commissioner next considers
whether the claimant has a “severe impairment” which significantly limits his
physical or mental ability to do basic work activities. [3] If the claimant suffers
such an impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in Appendix I of the
regulations. If the claimant has such an impairment, the Commissioner will
consider him per se disabled. [4] Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s severe
impairment, he has the residual functional capacity to perform his past work. [5]
Finally, if the claimant is unable to perform his past work, the Commissioner then
determines whether there is other work which the claimant could perform.
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quoting DeChirico v. Callahan, 134 F.3d
1177, 1179–80 (2d Cir. 1998)); see also 20 C.F.R. § 416.920(a)(4).
At step one, ALJ Loewy found that Hopkins had not engaged in substantial gainful
activity since the alleged onset date of March 1, 2009. (Tr. at 332.) At step two, ALJ Loewy
found that Hopkins was severely impaired by the following ailments: major depressive disorder,
borderline personality disorder, and a history of alcohol abuse. (Id.) ALJ Loewy noted that
Hopkins had a rule out diagnosis of Asperger’s disorder, but added that rule out diagnoses were
not formal diagnoses and therefore not considered medically determinable impairments. (Id. at
332–33.) ALJ Lowey went on to note that Hopkins had a communication disorder, but found
that Hopkins was well-spoken and showed no speech impediments so the condition was nonsevere. (Id.) ALJ Loewy found that Hopkins had a mild limitation in activities of daily living;
had a moderate limitation in social functioning; had a moderate limitation in concentrating,

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persisting, and maintaining pace; and had experienced no episodes of decompensation of
extended duration. (Id. at 333–34.)
At step three, after considering Listing 12.04, ALJ Loewy found that these impairments
did not meet or qualify as the medical equivalent of any of the listed impairments in Appendix 1
of the regulations. (Id. at 334.) ALJ Loewy considered the paragraph C criteria for Listing
12.04 and found that they were not met. (Id.)
Next, in analysis germane to steps four and five, ALJ Loewy assessed Hopkins’ RFC.
She determined that Hopkins had the RFC “to perform a full range of work at all levels but with
the following non-exertional limitations: the claimant is able to perform simple routine tasks that
consist of only simple decisions, only occasional changes in routine and superficial contact with
others and no fast paced production quotas. Additionally, Hopkins’s work will allow her to be
off task 10 percent of the workday.” (Id. at 334–35.)
In making this determination, ALJ Loewy gave “little weight” to the opinions of the
treating sources Dr. Garcia and Ms. McGrail, stating that Hopkins’s treatment notes show that
she is capable of engaging in group therapy sessions, thereby showing an ability to relate in a
small setting; that Hopkins had only one suicide attempt; that Hopkins was able to parent her
child; and that Hopkins’s GAF scores were in the moderate range. (Id. at 337–38.) ALJ Loewy
gave “some weight” to the opinion of consultative examiner Dana Jackson, PhD, stating that the
treatment records do show that there is a need for treatment and medication. (Id. at 336–37.)
ALJ Loewy gave “some weight” to the opinion of state agency analyst Dr. Kessel overall, but
gave “great weight” to the portion of his opinion that Hopkins could perform unskilled work.
(Id. at 337.) Lastly, ALJ Loewy gave great weight to the opinion of Consultative examiner
Brickell Quarles, PhD. (Id. at 338.) ALJ Loewy repeatedly noted that Hopkins “had

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consistently worked one day a week as a sculpture model” thereby showing that she was able to
adhere to a schedule, be around others and perform unskilled work. (Id. at 336, 339.)
At step four, ALJ Loewy found that Hopkins could not return to her past relevant work as
a legal secretary and data entry clerk. (Id. at 339.) Finally, at step five, ALJ Loewy found that
there existed a significant number of jobs in the national economy that Hopkins could perform.
(Id. at 340.) Accordingly, ALJ Loewy found that Hopkins was not disabled within the meaning
of the SSA from March 1, 2009, through the date of the decision. (Id. at 340–41.)
STANDARD OF REVIEW
In reviewing the final determination of the Commissioner, a court does not determine de
novo whether the claimant is disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
Rather, a 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.” Shaw v. Chafer, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42 U.S.C. § 405(g)).
“‘[S]ubstantial evidence’ is ‘more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Where
the Commissioner makes a legal error, a “court cannot fulfill its statutory and constitutional duty
to review the decision of the administrative agency by simply deferring to the factual findings of
the ALJ.” Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (citation omitted). Instead, an
ALJ’s “[f]ailure to apply the correct legal standards is grounds for reversal.” See id. (citation
omitted).

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DISCUSSION
I.

Development of the Record
It was the prior order of Judge Cogan that ALJ Loewy develop the medical record in this

matter. (Tr. at 397–398.) ALJ Loewy failed to do so. The hearing transcript indicates that ALJ
Loewy knew that Hopkins’s medical records were not a part of the file but proceeded with the
hearing. (Id. at 352–54.)
Setting aside the violation of the prior Order, however, a more fundamental error
remains: ALJ Loewy plainly failed to consider the fact that Hopkins had been diagnosed with
Asperger syndrome. While it appears true that Hopkins’s diagnosis of Asperger’s was initially a
“rule out” diagnosis, the record is clear that Hopkins was in fact subsequently diagnosed with
Asperger’s by the George A. Jervis Clinic, a facility which was licensed and recognized by the
New York State Office for People with Developmental Disabilities as a proper facility to
diagnose autism disorders. (Id. at 495–96.) While ALJ does appear to have issued two
subpoenas after the hearing for the records of the Richmond University Medical Center, there
was no attempt made to obtain the records of the George A. Jervis Clinic despite the fact that the
file contained letters from Dr. Garcia and Ms. McGrail indicating that Hopkins had been
evaluated at the George A. Jervis Clinic and diagnosed with Asperger syndrome. (Id.)
It is error for an ALJ to overlook an obvious inference from a medical record that there
are additional, relevant records outstanding. According to the SSA regulations, the
Commissioner must “make every reasonable effort” to assist the claimant in developing a
“complete medical history.” 20 C.F.R. § 404.1512(d). Furthermore, “[i]t is the rule in our
circuit that the ALJ, unlike a judge in a trial, must [her]self affirmatively develop the record in
light of the essentially non-adversarial nature of a benefits proceeding. This duty . . . exists even

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when, as here, the claimant is represented by counsel.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
1996) (internal citations and quotations omitted). ALJ Loewy was required to make “every
reasonable effort” to obtain reports from medical sources to fill gaps in the administrative record.
20 C.F.R. § 416.912.
In this case, there were medical records that were outstanding from qualified medical
sources who were not only licensed physicians, but in fact specialized experts. Those records
pertained to what the treating psychiatrist noted to be one of Hopkins’s underlying mental
impairments, Asperger syndrome. Those records could have been expected to be highly
probative and highly relevant. Thus, the record here was incomplete. It is not possible to assess
the severity of Hopkins’s condition without those records. For that reason, the Court must
remand with the direction that the records from the George A. Jervis Clinic be obtained.
II.

Weight of Treating Physicians’ Opinions
Under the treating physician rule, an ALJ is bound to give “controlling weight” to “a

treating source’s opinion on the issue(s) of the nature and severity of [the claimant’s]
impairment(s)” where that opinion is “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), 416.927(c)(2); accord Halloran v. Barnhart,
362 F.3d 28, 32 (2d Cir. 2004); Shaw, 221 F.3d at 134. At the time of ALJ Loewy’s decision, a
“treating source” was defined as a claimant’s “physician, psychologist or other acceptable
medical source” who provides, or has provided, the claimant “with medical treatment or
evaluation and who has, or has had, an ongoing treatment relationship” with the claimant. 20
C.F.R. §§ 404.1502, 416.902 (2016).

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When controlling weight is not given to a treating physician’s opinion, an ALJ must give
“good reasons” for whatever weight is assigned. Halloran, 362 F.3d at 32. In doing so, the ALJ
is bound to consider the following factors: (1) the length of the treatment relationship and the
frequency of examination; (2) the nature and extent of the treatment relationship; (3) the
evidence that supports the treating physician's opinion; (4) how consistent the treating
physician’s opinion is with the record as a whole; (5) the specialization of the physician in
contrast to the condition being treated; and (6) any other factors which may be significant. See
20 C.F.R. §§ 404.1527(c)(2)–(6), 416.927(c)(2)–(6); see also Halloran, 362 F.3d at 32; Shaw,
221 F.3d at 134. Where the ALJ does not appear to have taken into consideration these factors,
the Court cannot find that the ALJ has given good reasons. See, e.g., Sanchez v. Colvin, No. 13CV-929 (MKB), 2014 WL 4065091, at *12 (E.D.N.Y. Aug. 14, 2014). In such circumstances,
remand is appropriate. See Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) (“Failure to
provide such good reasons for [declining to credit] the opinion of a claimant’s treating physician
is a ground for remand.” (citations and internal quotation marks omitted)).
Here, ALJ Loewy erred when, in determining Hopkins’ RFC, she assigned little weight to
opinions of the treating sources without offering good reasons for doing so and without
addressing all the factors to be considered. (Tr. at 337–38.) Explaining that Dr. Garcia’s
opinions were entitled to “little weight,” ALJ Loewy claimed that they were not consistent with
the record that Hopkins could engage in group therapy, that Hopkins only had one documented
suicide attempt, that Hopkins was found capable of parenting her child, and that Hopkins’s GAF
scores fell in the moderate range. (Id.)
These are not good reasons. First, they are sparse – focusing on only one of the several
factors, consistency with the record as a whole, that the regulations require ALJs to consider in

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these circumstances. See 20 C.F.R. §§ 404.1527(c)(2)–(6); 416.927(c)(2)–(6). ALJ Loewy did
not discuss, for example, the nature or extent of the doctors’ relationship with Hopkins, or the
fact that Dr. Garcia is a specialist in mental health disorders. See Sanchez, 2014 WL 4065091, at
*12. Second, the fact that, Dr. Garcia assigned a GAF score indicating moderate limitations does
nothing to undermine his more detailed conclusions that Hopkins limitations were more severe.
On facts substantively indistinguishable from those here, the Second Circuit recently held that
GAF scores which are “bereft of explanation” do not furnish a good reason to disregard the
otherwise supported opinion of a treating psychiatrist. See Estrella v. Berryhill, 925 F.3d 90, 97–
80 (2d Cir. 2019). Finally, Dr. Garcia and Ms. McGrail were the two most prominent members
of the Richmond University Medical Center team of mental health professionals that had treated
Hopkins since 2004. Both of those sources had a lengthy and extensive history of treatment.
This was not considered.
In sum, ALJ Loewy failed to give “good reasons” for discounting the opinion of
Hopkins’ most prominent treating physician, and in doing so, she violated the treating physician
rule. See Halloran, 362 F.3d at 32.
CONCLUSION
For the reasons set forth herein, the Commissioner’s cross-motion for judgment on the
pleadings is denied and Hopkins’s motion for judgment on the pleadings is granted to the extent
it seeks remand. This matter is remanded to the Commissioner of Social Security for further
proceedings consistent with this Order. The Clerk of Court is respectfully directed to enter
judgment accordingly and to close this case.

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SO ORDERED.
Dated: Brooklyn, New York
May 18, 2020

Roslynn R. Mauskopf
________________________________
ROSLYNN R. MAUSKOPF
Chief United States District Judge

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