Brown v. Commissioner of Social Security

Filing 15

MEMORANDUM DECISION AND ORDER dated 8/31/18 denying defendant's 11 Motion for Judgment on the Pleadings. The case is remanded for the determination of benefits only from the onset date of June 6, 2012. ( Ordered by Judge Brian M. Cogan on 8/31/18 )c/m *Forwarded for jgm. (Guzzi, Roseann)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------NEAL JUNIOR BROWN,
Plaintiff,
- against COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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MEMORANDUM
DECISION AND ORDER
17-cv-7566 (BMC)

COGAN, District Judge.
1.

Plaintiff pro se qualified for Supplemental Security Income benefits as a child

because of his disability. When he turned 18, he had to be re-evaluated as an adult under Social
Security regulations. After four aborted hearings, at which he either refused to appear, got into
arguments with the Administrative Law Judge or his mother, and didn’t understand the questions
asked of him or the instructions given to him, the ALJ found that plaintiff had severe
impairments of a learning disability, speech and language delay, bipolar disorder, antisocial
personality disorder, and a marijuana use disorder. Notwithstanding those impairments, the ALJ
found that plaintiff had sufficient functional capacity to work at any exertional level as long as he
was limited to simple, repetitive tasks in a routine work setting with few changes and had only
occasional interaction with the public, co-workers, and supervisors.
2.

Plaintiff seeks review of that decision under 42 U.S.C. § 1383(c)(3). He has not

opposed the Commissioner’s motion for judgment on the pleadings, but given his pro se status
(and obvious impairments), I have reviewed the record to discern the strongest arguments that he
could make.

3.

There are two related issues that I see on this record. The first is whether the

impairment in plaintiff’s ability to interact with others rises to the level of “extreme” so that he
meets the Listing of Impairments § 12.08, personality disorders (or, alternatively, whether he has
“marked limitations” in both his ability to interact with others and his ability to manage himself,
which would also meet Listing § 12.08). The second issue is, if plaintiff’s impairment in social
functioning is not considered “extreme,” it is sufficiently severe that, when coupled with his
borderline to low intelligence and communication and concentration deficits, he lacks the
sufficient residual functional capacity to work. Starting with the first issue, the ALJ held that
plaintiff has “moderate difficulties” with some “significant” limitations in social functioning and
in his concentration, persistence, or pace, but that those limitations were neither “extreme” nor
“marked.” That holding drove the ALJ’s resolution of the second issue.
4.

Perhaps the most probative evidence on these issues is something which the ALJ

had available but did not consider. The transcripts of plaintiff’s hearings clearly show that
plaintiff had significant difficulty interacting with other people, following any instructions,
expressing himself clearly, and understanding what other people (except maybe his mother) told
him. The four hearing transcripts may be far more probative of plaintiff’s functional capacity
than the single-shot consulting examinations and non-examining record reviews from years
before the hearings upon which the ALJ principally relied.
5.

At the first attempted hearing in July 2015, when the ALJ asked plaintiff if he knew

that he had the right to be represented, plaintiff disclaimed knowledge of any such right (despite
the clear advice contained on the notice setting the hearing). The following exchange then
ensued:
ALJ:

You did not know that you could bring an attorney with you?
2

CLMT:
ALJ:

Okay. Well, if you would like to have an attorney or representative, we
have a list of attorneys or representatives that you can contact. We
have some agencies that will represent you for free if you qualify under
their income requirements. I am here to give you a full and fair
hearing, however, I cannot be your attorney or your advisor. An
attorney or advisor can do different things for you than I can do. They
can advise you on the law, and they can present evidence and witnesses
on your behalf. We also have a Vocational Expert here, today. I’m
going to swear him in and ask him some questions after I’ve spoken to
you and questioned you. He will then answer questions about any job
history that you have, any jobs that you may have performed in the
past, and any jobs that you might be able to perform now. This is an
important legal matter for you, because I will decide whether or not you
are going to receive Social Security Disability Benefits or
Supplemental Security Income. If you want an attorney or
representative, I’ll give you a pre -- a brief postponement. Have you
had any postponements before to get an attorney or representative?

CLMT:

What you mean by that?

ALJ:

Well, have you ever been here before?

CLMT:

Yeah, but seen the judge, no.

ALJ:

I’m sorry? Seen the judge, no?

CLMT:

Seen the judge, no.

ALJ:

Okay, so you haven’t had a postponement before to get a -- an attorney
or representative? Okay. So if you want a brief adjournment, a brief
postponement today, I’ll let you try to get an attorney or representative
to come back with you another day. If you want to go forward today,
you’ll be representing yourself, so you have to be able to cross-examine
the Vocational Expert who’s here who’s going to testify. Do you
understand?

OBS 1:

Your Honor?

ALJ:

Yes?

OBS:

I’m his mother. Can I do it? Because he won’t be able to.

ALJ:

1

No, I did not.

No, you can’t do it.

“OBS” is probably “observer,” i.e., plaintiff’s mother.

3

OBS:

Oh, okay.

ALJ:

You can have a minute to talk to him outside.

CLMT:

I don’t want to. I don’t want to do it. I want to wait for -- I want to
wait for an attorney.

ALJ:

You want to wait for an attorney?

CLMT:

I’ll wait for attorney.

ALJ:

Okay. That’s your right. We’ll give you a list of agencies that --

OBS:

Did you want to talk to --

ALJ:

Sir -- ma’am?

OBS:

Huh?

ALJ:

You cannot speak.

CLMT:

Listen, with respect, Judge, that’s my moms.

ALJ:

Sir?

CLMT:

Hey.

ALJ:

Sir, be quiet. Be quiet.

CLMT:

What?

ALJ:

Yeah, be quiet.

CLMT:

That’s my moms.

ALJ:

Yeah, I’m aware, and I can --

OBS:

[INAUDIBLE]

ALJ:

-- ask you mother --

OBS:

Yeah.

CLMT:

-- All right. If it’s like that --

ALJ:

Be quiet.

CLMT:

-- why you want -- no!

4

ALJ:

Ma’am, quiet. We’ll give you a piece of paper that has a list of
agencies --

CLMT:

I don’t want no paper.

ALJ:

You want to get an attorney or representative on your own?

CLMT:

Yeah.

ALJ:

Okay. If you get an attorney or representative, have them contact me
immediately, so I can --

CLMT:

All right.

ALJ:

-- put this case back on the calendar as soon as possible.

CLMT:

Soon as I get my --

ALJ:

If I don’t --

CLMT:

-- date assigned?

ALJ:

Let me finish. If after -- I do not hear from an attorney or
representative after a month or so, your case will be put on the
calendar.

CLMT:

So --

ALJ:

And then, when you come back, you will have your hearing whether or
not you have an attorney or representative, okay? In other words, if
you get an attorney or a representative -- it doesn’t have to be an
attorney. It could be a non-attorney representative. Have them contact
my office immediately, so that I can put this case back on the calendar,
and you can come back --

CLMT:

All right.

ALJ:

-- as quickly as possible.

CLMT:

All right, we’re going to make it more easier. How about you just go
get me a calendar, huh?

ALJ:

I’m sorry?

CLMT:

How about you go get me one?

ALJ:

Sir, that’s not my job.

CLMT:

That’s not your job?

5

ALJ:

No, it’s not.

CLMT:

So --

ALJ:

So if you want --

CLMT:

-- how do I supposed to get one?

ALJ:

I’m sorry?

CLMT:

How do I supposed to go get one?

ALJ:

Well, that’s why I told you that I have a list of agencies or
representative --

CLMT:

Yes. Can I please get the list?

ALJ:

We’ll be giving you the list, sir.

CLMT:

All right, thank you.

ALJ:

Okay. You’re welcome.

CLMT:

All right.

ALJ:

Okay. Hearing is over. Leave the record on, please.

CLMT:

All right, thank you.

ALJ:

You’re welcome.

HR:

If you’ll wait outside, I’ll give you the form, okay?

OBS:

Thank you, Judge.

CLMT:

Listen --

ALJ:

Thank you. Have a seat --

CLMT:

-- Judge --

ALJ:

-- outside. No more --

CLMT:

I’m in a rush.

ALJ:

-- sir.

OBS:

Come.

CLMT:

I got to go pick somebody up.
6

OBS:

Come. Go --

ALJ:

Go outside --

OBS:

Go outside.

ALJ:

-- right now.

CLMT:

This is wrong. Don’t do that.

OBS:

[INAUDIBLE], go outside. She said that’s it.

CLMT:

But we don’t have no calendar.

ALJ:

Step out.

HR 2:

We’ll bring --

OBS:

She said that’s it.

HR:

-- your form outside.

CLMT:

Yeah, I’ll do that. I will step out.

OBS:

He’s going to bring you the form. That’s it.

HR:

I’ll bring it to you outside.

CLMT:

Okay. Bring it then.

OBS:

Your Honor?

HR:

Okay?

CLMT:

Yeah, I’ll do it.

OBS:

Thank you so much. I’m sorry.

ALJ:

Thank you, ma’am. Step out.

As is apparent, the ALJ effectively was compelled to expel plaintiff from the hearing room, over
his mother’s apology for plaintiff’s conduct. Plaintiff had no clue how to behave or control
himself in front of the ALJ.

2

I assume “HR” is “Hearing Reporter.”

7

6.

The second attempt at a hearing, six months later in January 2016, was very brief

because plaintiff still had not found a representative. The ALJ asked plaintiff if he had tried to
get an attorney:
ALJ:

And what happened?

CLMT:

I didn’t receive –

ALJ:

I’m sorry?

CLMT:

There wasn’t -- I didn’t receive. There wasn’t enough attorneys.

ALJ:

They didn’t receive?

CLMT:

Yes. It wasn’t --

ALJ:

What does that mean?

CLMT:

-- enough attorneys.

The ALJ rescheduled the hearing. The communication problem is again apparent.
7.

The third attempt at a hearing (in March 2016, this time before a different ALJ) was

very similar to the first except that plaintiff mostly argued with his mother, rather than the ALJ.
Plaintiff had apparently obtained representation from Queens Legal Services, but for unexplained
reasons, the representative withdrew before the hearing. Through no fault of plaintiff’s, the
hearing started two hours late, which, according to plaintiff, meant that he was in danger of
missing an appointment with his parole officer. This put plaintiff in an agitated state. He said to
the ALJ: “I had a 9:30 appointment [for the hearing]. I been -- that’s -- I came down here, 9:30,
and then, boom. What happened? I don’t know. 11:00, damn near 12:00, haven’t seen a judge,
phone dead. Damn.” (He stated that his phone had died in response to the ALJ’s question as to
whether he had called his probation officer.)

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8.

When the ALJ told plaintiff that he would grant another adjournment so that

plaintiff could again try to get a representative, plaintiff responded:
I wanted to ask you, I don’t mind getting another lawyer, right? But one thing.
I’m not going to lie to you. And I’m going to guarantee. I’m going to make you
a promise about this. I’m not going back to Jamaica Queens to go look for no
lawyer.
When the ALJ attempted to explain that plaintiff could get a representative in Brooklyn, and
didn’t have to go to Queens, plaintiff became even more agitated (this is apparent even from the
transcript), castigating his mother and the ALJ for having made him (in his view) go to Queens
previously and unnecessarily.
9.

The ALJ presented plaintiff with a form to sign so that the hearing could be

rescheduled, to which plaintiff replied, “What the hell is all this . . . . There’s too many letters.”
The record shows what plaintiff meant – he reads, at most, at a third-grade level. He thus had
considerable difficulty signing and dating the form agreeing to the adjournment; the hearing
reporter had to show him what to do. Plaintiff’s mother asked plaintiff if he was ok, to which he
responded, “No, I’m not okay. I been here since 9:00.” As he continued to argue with his
mother, the ALJ again had to ask plaintiff and his mother to “please continue this . . . discussion
outside.” Plaintiff’s mother told her 22-year old son, “Tell him thank you.” And plaintiff did.
10.

Plaintiff’s behavioral problems continued at the fourth and final attempt at a

hearing in June 2016. Although plaintiff had paralegal representation from Queens Legal
Services, he refused to enter the hearing room, apparently again upset that they were getting off
to a late start, which, he claimed, caused a conflict with a probation or parole hearing. After
causing some kind of disturbance, he left the building. The ALJ noted at the outset that

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[t]he claimant was present in the waiting room about an hour ago, when I was in
the middle of a different hearing. I was notified by one of the supervisors of the
office [that] the claimant was causing something of a commotion outside, so I
brought the claimant’s representative into the room.
11.

Speaking to the paralegal, the ALJ obtained a waiver of plaintiff’s presence on the

ground that plaintiff was “nonessential.” The paralegal gave a brief opening statement; the ALJ
examined plaintiff’s mother. When the ALJ asked plaintiff’s mother if plaintiff really had a
conflicting parole hearing, she responded:
To be honest with you, I really don’t know. He said he went to his PO yesterday,
and then he called me on the phone, and he told me. He said, you [referring to
plaintiff’s mother], because of you I’m in trouble. They going to lock me up.
...
I’m trying to explain to him, no, it’s not because of me, it’s because of you and
your temper. You always want to argue with people and not listen. When people
tell you something, you just want to argue and catch fits and, you know, so on.
The last time we was here, you know, they had to attain [sic] him out there,
because he caught one of his fits out there, wanting to throw chairs, he wanting to
do this, he wanting to that. So, the only way the security guard can get him quiet,
remember? They let him charge is phone out there . . . . Which is no phone
allow[ed] out there, but they made an exception for him.
After plaintiff’s mother testified, the ALJ proceeded to examine a vocational expert, and then,
finally, closed the record.
12.

The ALJ’s finding that plaintiff was “nonessential” may have been a reference to

the version of Administration’s Hearings, Appeals, and Litigation Law Manual (HALLEX) I-2425(D), which may have been in effect at the time of the fourth hearing, that mandated that if a
claimant appeared only through a representative at a hearing, the ALJ could proceed with the
hearing if the witness “is not considered to be an essential witness.” See McNat v. Apfel, 201

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F.3d 1084, 1088 (9th Cir. 2000) (quoting HALLEX). 3 The ALJ did not articulate a basis for the
finding that plaintiff was non-essential, and I do not believe there is one. A substantial if not the
most substantial part of the ALJ’s decision considered what plaintiff is and is not able to do, and
the ALJ culled selectively from the record observations about activities of daily living, as to
which the record conflicts.
13.

Testimony from the claimant seems particularly important in a case involving these

kinds of mental limitations because communication difficulties may be part of the impairment:
the ALJ must determine if the claimant would be able to communicate at all in the workplace.
Indeed, if so much can be learned from the few minutes that plaintiff was present at (or absent
from) the attempted hearings, it seems clear much more could be gleaned if the ALJ had insisted
on his appearance. Or perhaps the ALJ might have been compelled to conclude that plaintiff is
mentally unable to sit through a hearing and answer basic questions – which would have obvious
ramifications for the ultimate determination of his functional capacity.
14.

If the ALJ had found that plaintiff’s behavior was a tactic to make it appear that his

impairment is more severe than it actually is, that would be within the ALJ’s prerogative, at least
as an initial matter. The ALJ has the ability to observe the demeanor of witnesses and determine
their motivation based on those observations, something a reviewing court cannot do. But the
ALJ made no such finding, and it would be giving an awful lot of credit for cleverness to a
claimant with plaintiff’s documented history of attention and communication problems to find
that he was consciously trying to manipulate the result. In the absence of such a finding, my

3

It is unclear whether this provision was in effect at the time of plaintiff’s hearing, but it is no longer. See
HALLEX I-2-4-25 at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-4-25.html (last update 5/1/17).

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view of the transcripts is that plaintiff simply cannot control himself, even in a situation where
submission to authority is critical to his own interest.
15.

This is not to say that any testimony obtained from plaintiff must or should be

taken at face value; indeed, the ALJ’s selection of certain historical statements by plaintiff about
his abilities may not have sufficiently considered plaintiff’s credibility in making those
statements. The hearing transcripts and various points in the record suggest that plaintiff may
have been minimizing the degree of his impairment or simply failing to appreciate its nature
when he made those statements. A good example of this challenge is reflected in the finding of
the ALJ and indeed most of the health care professionals that plaintiff is only mildly impaired in
his activities of daily living based largely on what he said to the consultants. But his mother –
who the ALJ expressly found to be a credible witness – testified that plaintiff “would not even
take care of his basic personal needs” unless she “stayed on top of him.” “Neal will not brush his
own teeth, or even his tongue, unless I stay right there, in the bathroom with him. Neal will not
take a shower unless I don’t keep scolding him, Neal, take a shower, take a shower, take a
shower, take a shower.” But because the ALJ did not hear testimony from plaintiff on his
limitations, he could not have passed on plaintiff’s credibility.
16.

One of the accurate observations that the ALJ made is that objective evidence from

plaintiff’s post-18-year-old treating record is “sparse.” That is true, but the reason is probative of
plaintiff’s functional capacity. The management of plaintiff’s severe impairments as a minor
was handled almost exclusively as part of his schooling. Despite his virtual illiteracy, he was
expelled from school at age 18 (in 2012) for fighting and because of his inability to follow
directions. Despite his repeated homicidal ideation against individuals with whom he becomes
angry, he received little treatment after his expulsion, only seeing a social worker on an irregular

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basis (as discussed below). (Plaintiff’s mother testified that he went every week, but the record
suggests that it may sometimes have been every month, and whether weekly or monthly, plaintiff
missed a number of appointments.)
17.

There is nothing unusual or surprising about this. Plaintiff had been in special

education since he was four years old and when that support system was withdrawn at age 18, his
family did not have the resources to know where to go. As his mother testified, they live in “the
projects,” so plaintiff was hardly going to transition from special education services at a public
school to a Park Avenue psychiatrist. No one seems to have given any consideration to the
possibility of vocational training or remedial services.
18.

The conclusions to be drawn from the hearing transcripts are consistent with the

later part of plaintiff’s school record. (As the ALJ recognized, SSR 11-2p permits consideration
of school records for young adults like plaintiff.) Plaintiff was classified as emotionally
disturbed. He failed every state examination prior to expulsion and could only acquire just over
two credits, neither of which is surprising considering that he is almost illiterate. Despite his
mother’s testimony to the ALJ that plaintiff’s frequently self-professed gang membership was
braggadocio, the school found that he had engaged in gang-related behavior, bullying, and
threats of violence. He needed more time than his peers to complete tasks, he became easily
distracted, and he could do schoolwork only away from others. He needed to be spoken to in
simple terms and given frequent breaks. He needed an environment that could provide him
“constant support and attention.”
19.

The ALJ viewed these records from a different perspective, culling from them what

seem to me to be largely immaterial mitigating observations (for example, “However, the
claimant did acknowledge that his behavior was inappropriate.”). I do not see how any

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conclusion can be drawn from the school records other than that plaintiff is a deeply disturbed,
out-of-control individual.
20.

I am not seeing much different from the minimal therapy plaintiff received after his

expulsion. The ALJ relied (in part) on an intake evaluation for outpatient services by a
psychiatrist, Dr. Jean Jacques, in 2012, at HeartShare St. Vincent’s Services, which is largely
illegible. It is followed by a more legible but mostly incomplete submission from someone else
at HeartShare (it is written in a different hand than Dr. Jacques’s), which is unsigned. I agree
with the ALJ that both of these documents, to the extent information can be gleaned from them,
appear to show less impairment than plaintiff’s school records, but they are hard to weigh
considering the illegibility, incompleteness, and provenance issues. Beyond that, they suffer
from the same limitations as any single-visit, snapshot evaluation. On the key points of this
inquiry – impulse control and intelligence – Dr. Jacques’s notations are not fully legible, but
state for the former “good during [illegible]” and “poor by [illegible], and “borderline to low
[illegible]” for the latter. In addition, part of Dr. Jacques’s observation of “no homicidal
ideation,” is contradicted throughout the record.
21.

Once again, the ALJ extracted from Dr. Jacques’s notes those mitigating

observations that are almost entirely immaterial to the key questions about plaintiff that I have
identified. The ALJ observed, for example, the notes stating that plaintiff was groomed, had no
memory impairment, and good eye contact. But those things are not plaintiff’s main problem.
He may remember very well the severe consequences of his socially unacceptable behavior
because his memory is unimpaired, but the rest of the record suggests that he either doesn’t care
or is not able to use that knowledge to control his behavior on future occasions.

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22.

More probative is Dr. Jacques’s observation, cited by the ALJ, that plaintiff was

cooperative during the interview. But no one has attempted to reconcile the brief periods of selfcontrol that plaintiff sometimes displays when talking with therapists to the out-of-control
behavior he seems to demonstrate towards everyone else, and what that comparison yields in
terms of workplace functionality.
23.

One point that is legible from that part of the document signed by Dr. Jacques is his

recommendation that plaintiff receive individual psychotherapy and anger management.
Plaintiff’s assigned therapist at St. Vincent was Mr. Stuart Knibb, a Licensed Master Social
Worker. Because an LMSW is not permitted to administer psychotherapy without supervision in
New York, 4 Mr. Knibb’s evaluation is not entitled to the deference of the treating physician rule.
See 20 C.F.R. §§ 404.913(a), 20 C.F.R. § 416.927(a)(2); see SSR 06-03p, 2006 WL 2329939, at
*1-6 (2006) (“Medical sources who are not ‘acceptable medical sources,’ [include] nurse
practitioners, physician assistants, licensed clinical social workers, . . . and therapists.”).
24.

But that does not mean his opinion should be rejected out of hand – it may be

appropriate to give more weight to the opinion of a medical source who is not an ‘acceptable
medical source’ if he or she has seen the individual more often than the treating source and has
provided better supporting evidence and a better explanation for his or her opinion.” SSR 0603p, 2006 WL 2329939, at *5. Mr. Knibb had the only post-school relationship with plaintiff
consisting of more than one session – Mr. Knibb reported monthly sessions with plaintiff over a

4

In New York, a Licensed Master Social Worker is not permitted to administer psychotherapy except under the
supervision of a Licensed Clinical Social Worker, psychologist, or psychiatrist. See LMSW License Requirements,
Office of the Professions, N.Y. State Ed. Dep’t, http://www.op.nysed.gov/prof/sw/lmsw.htm (last updated Dec. 27,
2017).

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twelve-month period through the date of plaintiff’s final hearing, and bi-weekly after that for
another year.
25.

Mr. Knibb actually rendered two functional assessments, a “Psychiatric Report”

(Report I) in June 2016 just before plaintiff’s fourth hearing, which the ALJ took into account,
and a “Psychiatric Residual Functional Capacity Report” (Report II), completed in May 2017,
which was delivered to the Appeals Council by Queens Legal Services on behalf of plaintiff after
the ALJ decided that plaintiff was not disabled. Although the two reports are in many ways
substantially similar, there are a few points in Report II suggests that plaintiff’s condition
worsened over the year between them. Report I stated, in part:
22 year old A[frican] A[merican] male mood depressed and angry about his
family situation. Speech clear and not pressured. Thought process is illogical,
thought content is angry not delusional but states that his gang members have
things against him. Mild cognitive impairment. Insight and judgment is impaired
due to lack of conscience regarding hurting others.
When asked to evaluate plaintiff’s condition in maintaining social functioning, Mr. Knibb
checked “EXTREME” on a five-level scale of “NONE” to “EXTREME,” and commented that
“patient continues to have issues with impulse control and anger management. Plaintiff reports a
fight at least two weeks ago.” He also noted that plaintiff has “poor insight into his illness.”
26.

The ALJ gave Report I only “some weight,” again emphasizing those points that in

my view were not central to which of plaintiff’s impairments compromised his RFC, like “he has
not been treated in the emergency room for a mental disorder” and he “has not lived in a
community residence or other highly supportive living situation” (which I assume does not
include prison, where plaintiff spent approximately four months in the fall of 2012). The ALJ
also discounted Report I because Mr. Knibb’s treatment of plaintiff was “sporadic.” This does
not make much sense to me, since however sporadic the sessions, Mr. Knibb had much more
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exposure to plaintiff than did Dr. Jacques (who saw plaintiff only one time), the consulting
psychologist (who also saw plaintiff only one time), or the consulting psychiatrist (who never
saw plaintiff at all) – and the ALJ gave the opinions of the last two doctors “great weight.”
(These two evaluations are discussed further below.)
27.

The response on Report I which the ALJ most emphasized was to the question,

“Does the patient have the ability to make occupational adjustments? ([i.e.,] to understand, carry
out and remember instructions, to respond appropriately to a supervisor and coworkers, to handle
customary pressures in a private work setting).” Mr. Knibb checked “yes.” However, dollars to
donuts he made a mistake, that is, Mr. Knibb gave an answer he didn’t mean to give. The notion
that plaintiff could respond appropriately to supervisors and co-workers, and handle pressures in
a work setting, is contrary to the “EXTREME” limitation in social functioning that Mr. Knibb
had checked earlier on the same form, the question for which included a descriptor, “Social
functioning refers to the capacity to interact appropriately and communicate effectively with
other individuals.” The two answers cannot be reconciled.
28.

Mr. Knibb’s answer to this “occupational adjustments” question in Report I is also

inconsistent with his answers in Report II, prepared about one year later (which could also
suggest that plaintiff’s condition worsened). As to “Social functioning,” including the same
descriptor as Report I, Mr. Gibbs checked the highest impairment classification, which on this
questionnaire was “marked” (only four levels were offered). He again commented, “poor
impulse control. Frequent verbal altercations with parent. Frequent physical altercations with
others in the community.”
29.

Other notations in Report II are also significant. As to “Concentration, persistence,

and pace,” Mr. Knibb checked “moderate” impairment (third most severe out of four), and

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commented that “client demonstrates an inability to stay on task during sessions.” This is
significantly worse than his assessment for the same criteria in Report I, in which Mr. Knibb
checked “mild” impairment (second least severe out of five). As to the question whether
plaintiff’s “psychiatric impairments caused him to experience or be expected to cause him to
experience deterioration or decompensation in a work or work-like setting,” Mr. Knibb checked
“yes” out of the “yes” or “no” options. He again noted plaintiff’s “poor impulse control” and
“inability to work with others for periods of time.”
30.

The questionnaire also contained a number of specific workplace inquires including

these:
− Remember locations and worklike procedures
− Understand and remember very short and simple instructions
− Carry out very short and simple instructions
− Maintain concentration and attention for extended periods
− Perform activities within a schedule
− Maintain regular attendance
− Be punctual within customary tolerances
− Sustain ordinary routine without special supervision
− Work in coordination with or proximity to others without being unduly
distracted by them
− Complete normal workday and workweek without interruptions from
psychologically based symptoms
− Perform at a consistent pace without an unreasonable number and length
of rest periods
− Make simple work-related decisions
− Accept instructions and respond appropriately to criticism from
supervisors
− Get along with coworkers or peers without unduly distracting them or
exhibiting behavioral extremes
− Interact appropriately with the public

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− Respond appropriately to changes in a routine work setting
For each of these, Mr. Knibb checked that plaintiff “cannot satisfy this requirement on a fulltime, 40 hour week, basis – experiences substantial loss of effective function in this area.” These
conclusions were based on plaintiff’s “poor impulse control” and “h[istory] of aggression” that
“precludes client working with others for a 40 hour work week” and “borderline intellectual
functioning.” Mr. Knibb also commented that plaintiff “needs substantial supervision from
parent. Patient is routinely hostile towards redirection and directives.”
31.

A fair reading of Mr. Knibb’s assessment in Report II, which is far more detailed

than Report I, is that plaintiff’s behavioral problems are so extreme that they would permeate
virtually every aspect of his performance in the workplace. Of course, I cannot fault the ALJ for
failing to consider this post-decision report. But since Mr. Knibb’s second report and plaintiff’s
conduct at the four hearings would have to be considered on remand, they are relevant to my
decision on review.
32.

Most importantly, Report II is fully consistent with the unavoidable conclusions

that must be drawn from the four hearing transcripts. Those transcripts, had the ALJ considered
them, could have provided an unusually deep view of the record from the ALJ’s first-hand
perspective.
33.

Finally, there is not substantial evidence to support the “great weight” that the ALJ

afforded the opinions of the consulting examiner-psychologist, Dr. Toula Georgiou, and
consulting psychiatrist, Dr. P. Kennedy-Walsh, for two reasons. First, those consulting doctors
did not have the benefit of what appears to be the most probative original evidence in this record
– the hearing transcripts, the later school records, and Mr. Knibb’s two reports (again, at least to
the second of Mr. Knibb’s reports, the ALJ cannot be faulted for this). Second, the risk of error
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in relying on consultants who examine a claimant only once – in Dr. Kennedy-Walsh’s case, not
even once – is well established. See Minsky v. Apfel, 65 F. Supp. 2d 124, 128 (2d Cir. 1999)
(“The general rule is that ‘the written reports of medical advisors who have not personally
examined the claimant deserve little weight in the overall evaluation of disability” (quoting
Vargas v. Sullivan, 898 F.2d 293, 295 (2d Cir. 1990) (collecting cases))).
34.

Those risks, it seems to me, are greatly heightened when the impairments under

consideration are mental or psychological. The definition of disability does not require a
constant state of decompensation, and it would be unusual if a mentally or emotionally disturbed
person did not have many short periods in which they appear relatively undisturbed.
35.

In determining whether to remand for another hearing or simply an award of

benefits, I recognize that the record has to be extremely one-sided to support the latter form of
relief. However, I see no way that the record that this record could support a finding of nondisability. Plaintiff has so little functional capacity he cannot even get through a hearing being
held for his benefit, let alone perform a job. Although Mr. Knibb’s opinion in both his first and
second reports is not entitled to deference under the treating physician rule, he had the benefit of
seeing plaintiff over many sessions for at least two years. His opinion supported a finding of
marked limitations in plaintiff’s ability both to interact with others and to manage himself. His
opinion also supported a finding of an extreme limitation in plaintiff’s ability to interact with
others. Thats opinion was amply supported by plaintiff’s school records, particularly the later
ones, the testimony of his mother, and by his interactions with the two ALJs over four hearings.
The contrary opinions of Drs. Georgiou and Kennedy-Walsh, by comparison, were based on a
single examination of plaintiff and no examination at all, respectively, and without the benefit
most probative record evidence.

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36.

Of course, the award of benefits here is not going to address the deep emotional

and behavioral problems that plaintiff has. He is strongly anti-social and no one seems to be
getting him the therapy and training that might point him in another direction. But there is
nothing we can do about that in the context of this proceeding. All we can do is determine
whether he has sufficient RFC to perform any kind of regular employment. Even granting the
ALJ’s restrictions, I think this record is overwhelming that he meets the standard for disability.
37.

Defendant’s motion for judgment on the pleadings [11] is DENIED. The case is

remanded for the determination of benefits only from the onset date of June 6, 2012. The Clerk
is directed to enter judgment accordingly.
SO ORDERED.

Digitally signed by
Brian M. Cogan
___________________________________
U.S.D.J.

Dated: Brooklyn, New York
August 31, 2018

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