DeCambre v. Colvin

Filing 20

MEMORANDUM & ORDER denying 11 Motion for Judgment on the Pleadings; granting 14 Motion for Judgment on the Pleadings; For the foregoing reasons, the Commissioner's motion is DENIED, Plaintiff's motion is GRANTED, and this action is REMANDED for further proceedings consistent with this Memorandum and Order. The Clerk of the Court is DIRECTED to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 3/8/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
MARK A. DECAMBRE,
Plaintiff,

MEMORANDUM & ORDER
14-CV-6864 (JS)

-againstCAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Christopher J. Bowes, Esq.
54 Cobblestone Drive
Shoreham, NY 11786
For Defendant:

Robert W. Schumacher, II, Esq.
United States Attorney’s Office
Eastern District Of New York
610 Federal Plaza
Central Islip, NY 11722

SEYBERT, District Judge:
Plaintiff Mark A. DeCambre (“Plaintiff”) brings this
action pursuant to Section 405(g) of the Social Securities Act,
42

U.S.C.

§

405(g),

challenging

the

Commissioner

of

Social

Security’s (the “Commissioner”) denial of his application for
Supplemental

Security

Income

disability

benefits.

Presently

before the Court are the Commissioner’s motion for judgment on the
pleadings

(Docket

Entry

11)

and

Plaintiff’s

judgment on the pleadings (Docket Entry 14).
reasons,

the

Commissioner’s

motion

is

DENIED

cross-motion

for

For the following
and

Plaintiff’s

motion is GRANTED and this matter is REMANDED to the Commissioner

for further consideration in accordance with this Memorandum and
Order.
BACKGROUND1
I.

Procedural Background
On April 16, 2012, Plaintiff filed for social security

disability benefits, claiming a disability since April 1, 2012.
(R. 19.)

Plaintiff alleges that he is disabled based on a

schizoaffective disorder, polysubstance abuse disorder, back pain,
a hearing and vision impairment, and human immunodeficiency virus
(“HIV”).
21,

2012,

(R. 21-22.)
(R.

97),

After his application was denied on August
Plaintiff

requested

a

hearing

before

an

administrative law judge, (R. 101-103). A video hearing took place
on February 26, 2014 before Administrative Law Judge Michael A.
Rodriguez (the “ALJ”).

(R. 19, 32.)

Plaintiff was represented by

counsel at the hearing and the ALJ heard testimony from Plaintiff
and Dr. David Vandergoot,2 a vocational expert.

(R. 39.)

On April 29, 2014, the ALJ issued a decision finding
that Plaintiff is not disabled.

(R. 19-32.)

On May 7, 2014,

The background is derived from the administrative record filed
by the Commissioner on March 23, 2015. (Docket Entry 9.) “R.”
denotes the administrative record.
1

While the hearing transcript states that the vocational expert
is named Dr. “Vancoots,” (R. 38) the Court notes that the record
contains a curriculum vitae for Dr. “Vandergoot.” (R. 152.) For
ease of reference, the Court will refer to the vocational expert
as Dr. Vandergoot throughout.
2

2

Plaintiff sought review of the ALJ’s decision by the Appeals
Council.

(R. 12.)

On September 16, 2014 the Appeals Council

denied Plaintiff’s request for review, making the ALJ’s decision
the final decision of the Commissioner.

(R. 1-6.)

Plaintiff then commenced this action on November 21,
2014.

The Commissioner and Plaintiff filed cross-motions for

judgment on the pleadings on June 5, 2015 and July 28, 2015,
respectively.
II.

(Docket Entries 11, 14.)

Evidence Presented to the ALJ
A.

Testimonial Evidence
At the time of the administrative hearing, Plaintiff was

forty-three years old.
Jamaica.

(R. 48.)

(R. 42.)

He completed grade twelve in

Plaintiff is able to read and write English

but is “not very good at it.”

(R. 49.)

Plaintiff testified that

he lives with his girlfriend and generally spends his days watching
television and looking outside.

(R. 44, 70.)

Plaintiff testified that his last job was a maintenance
position at a building in Manhattan, where he cleaned, put the
garbage out, shoveled snow, and performed repairs.

(R. 51-52.)

Previously, he had worked in general construction and for a
cleaning service.

(R. 55.)

Plaintiff testified that he suffers from rib pain, back
pain, deafness in his right ear, pain in his left ear, and vision
issues with respect to his right eye.
3

(R. 58-62.)

Plaintiff has

suffered from bloody stools and frequent urination for at least
five years.

(R. 64, 72-74.)

Plaintiff also has HIV and takes one

medication for that condition.

(R. 67.)

He testified that he

suffers from a burning sensation in his feet that his doctor
advised was a symptom of HIV.

(R. 68.)

Plaintiff testified that he began seeing a psychiatrist
in 2011 because he was “always getting angry, getting into fights,
breaking things, and destroying apartments.”

(R. 64-65.)

He was

prescribed medication for schizophrenia, which helps his condition
but causes drowsiness, nausea, vomiting, and diarrhea.

(R. 65)

Plaintiff indicated that this medication makes him feel “like it
suck[s] my whole soul out of my body, like weak and can’t get up
sometime[s].”

(R. 67.)

Plaintiff testified that he bites and

chews on his fingers and has a “bad nerves problem” as a result of
his mental condition.

(R. 66.)

or things moving” every day.

He hears voices and sees “shadows

(R. 75.)

Plaintiff testified that

he was admitted to a mental hospital for one month after chasing
his ex-girlfriend with a knife during an argument.

(R. 87-88.)

Dr. Vandergoot, an impartial vocational expert, appeared
and testified. (R. 77-85.) Dr. Vandergoot utilized two job titles
to categorize Plaintiff’s vocational profile: (1) “construction
work II”, an unskilled position with very heavy exertion, and (2)
“commercial or institutional cleaner,” an unskilled position that
is heavy in exertion.

(R. 78.)
4

Dr. Vandergoot testified that

Plaintiff would have sufficient experience to accept one of those
positions if they became available.

(R. 78-80.)

The ALJ asked Dr. Vandergoot to assume the residual
functional capacity of an individual who: (1) is able to (a) sit
for six hours in an eight hour day, (b) stand and walk for six
hours in an eight hour day, and (c) lift and carry fifty pounds
occasionally and twenty-five pounds more frequently; (2) should
not engage in upper extremity pushing or pulling or crawling and
cannot use ladders, ropes, or scaffolds; (3) is able to engage in
frequent overhead distance and directional reaching; (4) cannot
perform jobs requiring binocular vision; (5) cannot be around loud
background noise; (6) should avoid concentrated exposure to fumes,
gases, dusts, and odors; (7) cannot work around workplace hazards;
and (8) must be limited to low-stress, unskilled positions that
require only sporadic decision making and no interaction with the
public. (R. 80.) Dr. Vandergoot testified that such an individual
could not perform Plaintiff’s past relevant work but could perform
the following positions: (1) electronics worker, an unskilled
position with approximately 150,000 jobs available in the national
economy,

(2)

printing

screen

assembler,

an

occupation

with

approximately 100,000 jobs available in the national economy, and
(3) grocery bagger, an occupation with approximately 50,000 jobs
available in the national economy.

5

(R. 82-84.)

B.

Medical Evidence
1.

PATH Center

On March 29, 2012, Plaintiff was examined at the PATH
Center (“PATH”).

(R. 322.)

Plaintiff had been referred for HIV

management and complained of poor sleep, appetite, back and rib
cage problems, hearing problems in his right ear, and pain in his
right foot heel.

(R. 322.)

Plaintiff’s past medical history

indicated diagnoses of HIV and schizoaffective disorder. (R. 326.)
Plaintiff reported that he was taking Atripla for HIV and Zoloft
and Trazodone for his schizoaffective disorder.

(R. 322.)

He was

described as “well developed and well nourished, alert and oriented
[and] in no apparent distress.”

(R. 325.)

He also indicated that

he was using marijuana and addicted to “antibiotics from [the]
streets.”

(R. 323, 326.)

During his visit, Plaintiff requested

a letter for his disability application.

(R. 326.)

On April 12, 2012 Plaintiff was examined at PATH.
332, 371, 457-48.)

(R.

He reported that he had insurance problems and

was unable to obtain medications for two months.

(R. 332.)

However, Plaintiff’s schizoaffective disorder was stable and he
had no complaints.

(R. 457-58.)

On June 14, 2012, Plaintiff saw

Dr. Bakshi at PATH and stated that he was no longer taking
Trazodone and Zoloft and he wished to see a psychiatrist.
368.)

Nevertheless,

Dr.

Bakshi

noted

that

(R.

Plaintiff’s

schizoaffective disorder was stable and he was “well developed and
6

well nourished, alert and oriented [and] in no apparent distress.”
(R. 368-69.)
On July 16, 2012, Plaintiff returned to PATH and saw Dr.
Bakshi. (R. 363-66.) Plaintiff reported that he was taking Zoloft
and Trazodone but was agitated and dizzy as a result of the
medications.

(R.

365.)

Dr.

Bakshi

schizoaffective disorder was stable.

noted

(R. 365.)

that

Plaintiff’s

On September 13,

2012, Plaintiff had a follow up appointment at PATH.

(R. 465.)

One section of the PATH progress report indicates that Plaintiff
was taking Zoloft and Trazadone regularly; however, Dr. Berkowitz
indicated that Plaintiff’s “[a]ffect remains bizarre, never went
for psych appt, didn’t go to pain management; missing doses fairly
frequently.”

(R. 465, 470.)

Plaintiff reported that he did not

have any mood changes or suicidal ideations.

(R. 465.)

Plaintiff had appointments at PATH on January 31, 2013,
and February 28, 2013.

(R. 473, 477.)

On both occasions,

Plaintiff did not report any mood changes or suicidal ideations.
(R. 473, 477.)

On July 25, 2013, Plaintiff returned to PATH for

a follow up visit.

(R. 411.)

Plaintiff denied that he suffered

from any mood changes or suicidal thoughts and reported that he
was taking Atripla, Zoloft and Trazadone regularly.

(R. 411.)

Plaintiff returned to PATH on January 21, 2014 after missing

7

appointments since July 2013.

(R. 453.)

Plaintiff reported that

his mood was stable with no suicidal ideations.
2.

(R. 453.)

Dr. Thukral

On July 18, 2012, Dr. Vinod Thukral conducted an internal
medicine examination of Plaintiff pursuant to a referral from the
Division of Disability Determination.

(R. 334-38.)

Plaintiff

denied complications from HIV and indicated that his injuries to
his

lower

chest

injuries.

and

lower

(R. 334.)

back

were

caused

by

work

related

Plaintiff also advised that he drinks “a

lot” on a daily basis, smokes approximately ten joints of marijuana
per day, and smokes approximately two cigars per day.

(R. 335.)

Upon examination, Dr. Thukral observed that Plaintiff was blind in
his right eye with decreased visual acuity in the left eye.
336, 338.)

(R.

Dr. Thukral assessed the following diagnoses: lower

backache; left lower chest pain due to an injury; HIV; insomnia;
schizoaffective disorder; right ear deafness; right eye blindness;
active alcohol abuse; active marijuana abuse; and decreased visual
acuity in the left eye.
3.
On

(R. 337-38.)

Dr. Morcos
July

18,

2012,

Plaintiff

had

a

consultative

examination with Dr. Sally Morcos, a psychologist.

(R. 339-45.)

Plaintiff advised that he was hospitalized at Kings County Hospital
Center in 2009 due to his schizoaffective disorder.

(R. 339.)

Plaintiff reported difficulty sleeping, appetite loss, weight
8

loss, depression since childhood, and irritability and loneliness
related to his HIV diagnosis.

(R. 340.)

auditory and visual hallucinations.

Plaintiff reported

(R. 341.)

Plaintiff also

reported that he smoked cigars, drank “as much as I can,” and would
smoke marijuana daily if he was able to (R. 341-42.)

Dr. Morcos

noted that Plaintiff took the train to his appointment and that he
reported being able to dress, bathe, groom himself, take public
transportation without assistance, and perform light cleaning.
(R. 339, 343.)

However, Plaintiff provided the incorrect date and

was unable to indicate why he was being evaluated or the name and
role of the evaluator.

(R. 343.)

Plaintiff was able to perform

counting and simple calculations but his serial threes contained
one error.

(R. 343.)
Dr.

Morcos

diagnosed

Plaintiff

with

schizoaffective

disorder, alcohol dependence, and cannabis dependence.

(R. 344.)

Dr. Morcos found that Plaintiff could understand simple directions
and instructions, independently perform simple tasks, maintain
attention and concentration, maintain a regular schedule, learn
new tasks, perform complex tasks under supervision, and relate
adequately to others.
could

not

make

(R. 344.)

appropriate

Dr. Moros found that Plaintiff

decisions

9

or

cope

with

stress

appropriately, and that Plaintiff’s “[d]ifficulties are caused by
prolonged substance abuse.”

(R. 344.)

Dr. Morcos noted that after their appointment, Plaintiff
stopped her in the hallway and informed her that his girlfriend
called and advised him that he “‘flipped out’ and held a knife to
her throat.”

(R. 345.)

recollection of this event.

Plaintiff indicated that he had no
(R. 345.)

Emergency medical services

were contacted and when they arrived, Plaintiff advised that the
incident had actually occurred three years prior rather than within
the past few days.
4.

(R. 345.)

Dr. Belsky

On

August

20,

2012,

Dr.

J.

Belsky,

completed

a

psychiatric review technique form. (R. 383-396.) Dr. Belsky noted
Plaintiff’s

drug

induced

mood

disorder

and

schizoaffective

disorder as well as “[h]eavy alcohol and marijuana abuse current
and long standing.”
Plaintiff

was

limitations:

(R. 386, 391.)

moderately
restriction

limited
of

in

Dr. Belsky concluded that
the

activities

following
of

functional

daily

living;

difficulties in maintaining concentration, persistence or pace;
and difficulties in maintaining social functioning.

(R. 393.)

Dr. Belsky noted that Plaintiff had “one or two” repeated episodes
of deterioration of extended duration.

(R. 393.)

Dr. Belsky also completed a mental residual functional
capacity assessment.

(R. 403-406.)
10

Dr. Belsky concluded that

Plaintiff was markedly limited in his ability to appropriately
interact with the general public and otherwise either moderately
limited or not significantly limited in areas of understanding and
memory,

sustained

concentration

interaction, and adaptation.

and

persistence,

(R. 403-404.)

social

Dr. Belsky noted that

Plaintiff’s complaints of depression, suicidal ideation, auditory
hallucinations, and paranoid ideation were vague, inconsistent,
and appeared to be exaggerated, and that “[Plaintiff] was evasive
and his speech was tangential.”

(R. 405.)

Dr. Belsky concluded

that Plaintiff “is not a reliable historian, and is able to perform
simple tasks in a low stress work setting.”
5.

(R. 405.)

Dr. Verdrager

On August 20, 2012, Dr. Verdrager completed a physical
residual functional capacity assessment with Plaintiff’s primary
diagnosis being HIV.
Plaintiff

could

(R. 397-402.)

occasionally

lift

Dr. Verdrager indicated that
and/or

carry

fifty

pounds;

frequently lift and/or carry twenty-five pounds; stand and/or walk
about six hours in an eight hour workday with normal breaks; sit
for about six hours in an eight hour workday with normal breaks;
and push and/or pull without limitations.
Verdrager
limitations

assessed
with

Plaintiff

respect

to

as

having

climbing,

(R. 398.)
frequent

balancing,

Dr.

postural
stooping,

kneeling, crouching, and crawling, but no manipulative limitations
(i.e., handling, fingering, feeling, or reaching).
11

(R. 399.)

Plaintiff’s blindness in his right eye was noted as was his 20/30
vision

in

his

left

eye;

however,

Dr.

Verdrager

stated

that

Plaintiff had “unlimited” near acuity, far acuity, accommodation,
and color vision.

(R. 399.)

Dr. Verdrager did not indicate

whether Plaintiff’s depth perception or field of vision was limited
or unlimited.
6.

(R. 399.)
Dr. Khanna

On May 16, 2013, Plaintiff initiated psychiatric care
with Dr. Sangeet Khanna.

(R. 503.)

Plaintiff reported “feeling

stressed out” and anxious and admitted to hearing voices at times.
(R. 503.)

Dr. Khanna concluded that Plaintiff’s “speech is clear,

mood is fair, affect is constricted, thought process, is logical
and goal directed,” and that Plaintiff’s memory and concentration
is fair.

(R. 503.)

Dr. Khanna diagnosed Plaintiff with paranoid

schizophrenia and THC dependence.

(R. 503.)

On May 29, 2013, Plaintiff had another appointment with
Dr. Khanna.

(R. 504.)

Plaintiff reported that he was not able to

obtain medications due to insurance issues, and that he was not
sleeping well, had poor appetite, and had panic attack episodes.
(R. 504.)

Dr. Khanna concluded that Plaintiff’s “speech is clear,

mood is fair, affect is constricted, thought process, is logical

12

and goal directed” and that he had “[n]o voices” and fair memory
and concentration.

(R. 504.)

On July 17, 2013, Dr. Khanna completed a Medical Source
Statement.
a

(R. 420-22.)

“complete

loss

of

Dr. Khanna indicated that Plaintiff had

ability”

to

sustain

performance

of

the

following activities during an eight hour workday: responding
appropriately
pressures,

to

co-workers,

responding

responding

appropriately

to

to

customary

changes

in

the

work
work

setting, exercising good judgment on the job, and behaving in an
emotionally stable manner.

(R. 421.)

Dr. Khanna also indicated

that Plaintiff would likely miss “4+” days of work per month; his
condition lasted or would be expected to last for twelve months or
more; and that drugs and alcohol abuse were not a material factor
in Plaintiff’s mental condition.

(R. 421.)

However, Dr. Khanna

also stated that if Plaintiff’s drug and/or alcohol use were to
stop, there would be changes in his limitations.
7.

(R. 421.)

Dr. Rubinstein

On November 1, 2013, Plaintiff met with Dr. Richard N.
Rubinstein, a psychiatrist.

(R. 419.)

Plaintiff reported feeling

stressed and admitted to paranoia and auditory hallucinations,
reporting that “my soul is coming out of my body.”

(R. 419.)

However, Plaintiff denied hearing voices, having homicidal or
suicidal ideations, or having any sleep disturbances.
Dr.

Rubinstein

observed

that

Plaintiff’s
13

thought

(R. 419.)

process

was

logical and goal directed, his concentration was fair, his recent
and remote memory were intact, and his mood was “mildly dysphoric.”
(R. 419.)
DISCUSSION
I.

Standard of Review
In reviewing the ruling of an ALJ, the Court does not

determine de novo whether Plaintiff is entitled to disability
benefits.

Thus, even if the Court may have reached a different

decision, it must not substitute its own judgment for that of the
ALJ.

See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).

Instead, this Court must determine whether the ALJ’s findings are
supported by “substantial evidence in the record as a whole or are
based on an erroneous legal standard.”

Persico v. Barnhart, 420

F. Supp. 2d 62, 70 (E.D.N.Y. 2006) (internal quotations marks and
citation omitted).

If the Court finds that substantial evidence

exists to support the Commissioner’s decision, the decision will
be upheld, even if evidence to the contrary exists.

See Johnson

v. Barnhart, 269 F. Supp. 2d 82, 84 (E.D.N.Y. 2003).
“Substantial evidence is such evidence that a reasonable
mind might accept as adequate to support a conclusion.”

Id.

(citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420,
1427, 28 L. Ed. 2d 842 (1971)).

The substantial evidence test

applies not only to the ALJ’s findings of fact, but also to any
inferences and conclusions of law drawn from such facts.
14

See id.

To determine if substantial evidence exists to support the ALJ’s
findings, the Court must “examine the entire record, including
contradictory

evidence

and

inferences may be drawn.”

evidence

from

which

conflicting

See Brown v. Apfel, 174 F.3d 59, 62 (2d

Cir. 1999) (internal quotation marks and citation omitted).
II.

Determination of Disability
A claimant must be disabled within the meaning of the

Social Security Act (the “Act”) to receive disability benefits.
See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); 42 U.S.C.
§ 423(a), (d).

A claimant is disabled under the Act when he can

show an inability “to engage in any substantial gainful activity
by

reason

of

any

medically

determinable

physical

or

mental

impairment . . . which has lasted or can be expected to last for
a continuous period of not less than 12 months.”
§ 423(d)(1)(A).

The

claimant’s

impairment

must

42 U.S.C.
be

of

“such

severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy.”

42 U.S.C. § 423(d)(2)(A).

The Commissioner must apply a five-step analysis when
determining whether a claimant is disabled as defined by the Act.
See 20 C.F.R. §§ 404.1520, 416.920.

First, the Commissioner

considers whether the claimant is currently engaged in “substantial
gainful activity.”

20 C.F.R. § 404.1520(a)(4)(i).
15

Second, the

Commissioner considers whether the claimant suffers from a “severe
medically determinable physical or mental impairment” or a severe
combination of impairments that satisfy the duration requirement
set forth at 20 C.F.R. § 404.1509.3

Third, if the impairment is

“severe,” the Commissioner must consider whether the impairment
meets or equals any of the impairments listed in Appendix 1 of the
Social Security regulations.

20 C.F.R. § 404.1520(a)(4)(iii).

“These are impairments acknowledged by the Secretary to be of
sufficient

severity

to

preclude

gainful

employment.

If

a

claimant’s condition meets or equals the ‘listed’ impairments, he
or she is conclusively presumed to be disabled and entitled to
benefits.”

Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995)

(citation omitted).

Fourth, if the impairment or its equivalent

is not listed in the Appendix, the claimant must show that he does
not have the residual functional capacity (“RFC”) to perform tasks
required in his previous employment.
(4)(iv).

20 C.F.R. § 404.1520(a)

Fifth, if the claimant does not have the RFC to perform

tasks in his or her previous employment, the Commissioner must
determine if there is any other work within the national economy
that the claimant is able to perform.
(4)(v).

20 C.F.R. § 404.1520(a)

If not, the claimant is disabled and entitled to benefits.

20 C.F.R. § 404.1509 provides that “[u]nless your impairment is
expected to result in death, it must have lasted or must be
expected to last for a continuous period of at least 12 months.”
3

16

The claimant has the burden of proving the first four
steps of the analysis, while the Commissioner carries the burden
of proof for the last step.

See Shaw, 221 F.3d at 132.

“In making

the required determinations, the Commissioner must consider: (1)
the objective medical facts; (2) the medical opinions of the
examining or treating physicians; (3) the subjective evidence of
the claimant’s symptoms submitted by the claimant, his family, and
others; and (4) the claimant’s educational background, age, and
work experience.”

Boryk ex rel. Boryk v. Barnhart, No. 02–CV–

2465, 2003 WL 22170596, at *8 (E.D.N.Y. Sept. 17, 2003).
III. The ALJ’s Decision
The ALJ applied the five-step analysis described above
and determined that Plaintiff is not disabled.

(R. 19-32.)

At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since April 16, 2012.

(R. 21.)

At step two, the ALJ found that Plaintiff suffered from
the following severe impairments: (1) schizoaffective disorder,
(2)

polysubstance

abuse

disorder,

(3)

back

pain,

(4)

HIV,

(5) hearing impairment, and (6) vision impairment in the right
eye.

(R. 21.)
At

step

three,

the

ALJ

concluded

that

Plaintiff’s

impairments, either singularly or in combination, did not meet or
equal the severity of one of the impairments listed in Appendix 1
of the Social Security regulations.
17

(R. 22.)

In reaching this

conclusion,

the

ALJ

stated

that

he

considered

the

following

limitations: 12.03 (schizophrenic, paranoid and other psychotic
disorders),

12.04

(affective

disorders),

12.09

(substance

addiction disorders), 1.00 (musculoskeletal), and 14.00 (immune
system disorder).

(R. 22-24.)

See also 20 C.F.R. Pt. 404, Subpt.

P, App. 1.
The

ALJ

concluded

that

Plaintiff

has

the

residual

functional capacity to perform medium work, as defined in 20 C.F.R.
§ 416.967(c), except that he is limited to unskilled employment
tasks

in

a

low-stress

position

that

require

only

occasional

decision making or exercise of judgment. (R. 24.) The ALJ further
concluded that Plaintiff must avoid public interaction and is
limited to occasional interaction with supervisors and jobs that
deal with things, rather than people.

(R. 24.)

The ALJ found

that Plaintiff must avoid the following activities: pushing and
pulling with the upper extremities; crawling; ladders, ropes, or
scaffolds; workplace hazards; and operating motor vehicles, moving
machinery, or equipment. (R. 24.) Additionally, the ALJ concluded
that Plaintiff must avoid jobs that require binocular vision or
involve concentrated exposure to environmental irritants or high
background noise.

(R. 24.)

At step four, the ALJ concluded that Plaintiff could not
perform his past relevant work.

(R. 31.)

18

Finally, at step five, the ALJ concluded that Plaintiff
could perform other work existing in the national economy based on
his age, education, work experience, residual functional capacity,
and Dr. Vandergoot’s expert testimony.

(R. 31-32.)

the ALJ determined that Plaintiff was not disabled.

Accordingly,
(R. 32.)

In reaching his decision, the ALJ gave “no weight” to
Dr. Khanna’s Medical Source Statement, finding that Dr. Khanna’s
opinion that Plaintiff’s mental impairment resulted in significant
limitations is “inconsistent with objective clinical findings from
his

own

examinations

indicating

fair

impulse

control,

concentration and memory; as well as his own statements that the
claimant’s psychiatric condition was stable.”

(R. 29.)

The ALJ

accorded “great weight” to the opinion of Dr. Morcos4 because it
was consistent with evidence from Plaintiff’s treating physicians
that Plaintiff has a “fairly good mental status” when compliant
with his medication. (R. 27.) The ALJ similarly gave Dr. Belsky’s
opinion “great weight” based on its consistency with progress
notes.

(R. 27.)

The ALJ does not specifically reference Dr. Morcos by name in
his discussion of the “[g]reat weight accorded to the evaluating
psychologist’s opinion.”
(R. 27-29.) However, the ALJ notes
that the evaluating psychologist’s consultative examination took
place in July 2012 and the ALJ references Exhibit 6F, which is
Dr. Morcos’ psychiatric evaluation dated July 18, 2012. (R.
339.)
4

19

IV.

Analysis of the ALJ’s Decision
The Commissioner filed her motion first and argues that

each step of the ALJ’s decision is supported by substantial
evidence.

(See

generally

Comm’r

Br.,

Docket

Entry

11-1.)

Plaintiff counters that the ALJ’s decision should be reversed and
remanded

on

the

following

grounds:

(1) the

ALJ’s

failure

to

appropriately consider Plaintiff’s psychiatric limitations; and
(2) the ALJ’s improper reliance on Vandergoot’s testimony, which
did not appropriately address Plaintiff’s eyesight limitations.
(Pl.’s Br., Docket Entry 15, at 17-23.)

The Court addresses each

argument below.
A.

Plaintiff’s Psychiatric Limitations
Plaintiff argues that the ALJ inappropriately discounted

the functional limitations of Plaintiff’s schizoaffective disorder
in finding that he is capable of meeting the mental demands of
unskilled work.

(Pl.’s Br. at 19.)

Particularly, Plaintiff

alleges that the ALJ erred in: (1) dismissing the opinion of Dr.
Khanna and instead imposing his “lay opinion” (2) failing to
address certain portions of Dr. Morcos’ report; and (3) concluding
that his hallucinations were “unremarkable or insignificant.”
(Pl.’s Br. at 19; Pl.’s Reply Br., Docket Entry 19, at 2.)

The

Court finds that remand is necessary based on the ALJ’s failure to
adequately develop the record before giving no weight to Dr.
Khanna’s opinion.
20

The “treating physician rule” provides that the medical
opinions and reports of a claimant’s treating physicians are to be
given “special evidentiary weight.”5
143 F.3d 115, 118 (2d Cir. 1998).

Clark v. Comm’r of Soc. Sec.,
Specifically, the regulations

state:
Generally, we give more weight to opinions
from your treating sources . . . . If we find
that a treating source’s opinion on the
issue(s) of the nature and severity of your
impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the
other substantial evidence in your case
record, we will give it controlling weight.
20

C.F.R.

§

404.1527(c)(2).

When

an

ALJ

does

not

accord

controlling weight to the medical opinion of a treating physician,
the ALJ “must consider various ‘factors’ to determine how much
weight to give to the opinion.” Schnetzler v. Astrue, 533 F. Supp.
2d 272, 286 (E.D.N.Y. 2008) (citations omitted).
include:

Such factors

“(1) the length of the treatment relationship and

frequency of the examination; (2) the nature and extent of the
treatment relationship; (3) the extent to which the opinion is
supported by medical and laboratory findings; (4) the physician’s

A “treating source” is “your own physician, psychologist, or
other acceptable medical source who provides you, or has
provided you, with medical treatment or evaluation, and who has,
or has had, an ongoing treatment relationship with you.”
20 C.F.R. § 146.902.
5

21

consistency with the record as a whole; and (5) whether the
physician is a specialist.”

Id.

“[T]he Court must assess whether the ALJ satisfied his
threshold duty to adequately develop the record before deciding
the appropriate weight of a treating physician’s opinion.”

Khan

v. Comm’r of Social Sec., No. 14-CV-4260, 2015 WL 5774828, at *13
(E.D.N.Y. Sept. 30, 2015).

Pursuant to regulations that took

effect on March 26, 2012, the ALJ is no longer required to recontact

a

treating

insufficiency

in

physician

the

to

evidence.

resolve

an

See

C.F.R.

20

inconsistency
§

or

404.1520b;

Gabrielsen v. Colvin, No. 12-CV-5694, 2015 WL 4597548, at *5-6
(S.D.N.Y. Jul. 30, 2015).

Instead, the ALJ may resolve any

inconsistency or insufficiency by: (1) re-contacting the treating
physician; (2) requesting additional existing records; (3) asking
the

claimant

to

undergo

a

consultative

examination

at

the

Commissioner’s expense; or (4) asking the claimant or others for
additional information.

20 C.F.R. § 404.1520b(c).

However, the

ALJ may choose not to seek clarification from a medical source
where he or she “knows from experience that the source either
cannot

or

will

not

provide

necessary

evidence.”

20

C.F.R.

§ 416.920b(c)(1).
The Second Circuit has directed that notwithstanding the
revised 20 C.F.R. § 404.1520b, “it may be incumbent upon the ALJ
to re-contact medical sources in some circumstances.”
22

Khan, 2015

WL 5774828, at *14 (citing Selian v. Astrue, 708 F.3d 409, 421 (2d
Cir. 2013)).

In applying 20 C.F.R. § 404.1520b, courts in this

Circuit have held that where additional information is needed
regarding the opinion of a treating physician, the ALJ should
contact the treating source “for clarification and additional
evidence.”

McClinton v. Colvin, No. 13-CV-8904, 2015 WL 6117633,

at *23 (S.D.N.Y. Oct. 16, 2015) (collecting cases).

See also

Gabrielsen, 2015 WL 4597548, at *6-7 (Holding that the ALJ had an
obligation to re-contact the treating physician because she would
likely be able to explain many of the inconsistences in her
statements.); Vasquez v. Comm’r of Social Sec., No. 14-CV-6900,
2015 WL 4562978, at *17 (S.D.N.Y. Jul. 21, 2015) (Holding that the
ALJ’s rejection of the treating physician’s opinion “without first
attempting to clarify any gaps or perceived inconsistencies in the
record constituted legal error and grounds for remand.”).

But see

Vanterpool v. Colvin, No. 12-CV-8789, 2014 WL 1979925, at *17
(S.D.N.Y. May 15, 2014) (“Because the ALJ did not reject [the
treating physician’s] opinion due to gaps in the record, he was
not required to contact the physician for further information or
clarification.”).
As previously noted, Plaintiff met with Dr. Khanna on
two occasions during May 2013 and Dr. Khanna completed a Medical
Source Statement in July 2013.
accorded

Dr.

Khanna’s

opinion

(R. 420-22, 503-504.)
“no
23

weight,”

finding

The ALJ
that

the

limitations

set

forth

in

the

Medical

Source

Statement

inconsistent with Dr. Khanna’s prior examinations.

(R. 29.)

were
The

Court finds that the ALJ had an obligation to attempt to clarify
the inconsistency in Dr. Khanna’s opinion prior to according his
opinion no weight.

However, neither the record nor the ALJ’s

decision indicate that the ALJ attempted to utilize one of the
methods

set

forth

in

20

C.F.R.

§

404.1520b--particularly,

re-contacting Dr. Khanna--or that the ALJ knows from experience
that

Dr.

Khanna

clarification.

cannot

or

will

Parenthetically,

not
it

provide

appears

the

that,

requisite
like

the

treating physician in Gabrielsen, Dr. Khanna would likely be able
to explain many of the inconsistencies in his statements.

See

Gabrielsen, 2015 WL 4597548, at *6-7.
Accordingly, remand is appropriate to enable the ALJ to
develop the record with respect to Dr. Khanna’s opinion.

See

42 U.S.C. § 405(g) (The district court is empowered to reverse the
Commissioner’s decision with or without remanding the matter for
rehearing).

See also Khan, 2015 WL 5774828, at *15 (remanding

based on the ALJ’s failure to appropriately develop the record
before

assigning

opinions).

minimal

weight

to

the

treating

physicians’

Based on the Court’s determination that remand is

required on this ground, the Court need not address Plaintiff’s
remaining arguments regarding the ALJ’s determination that he is
capable of meeting the mental demands of unskilled work.
24

B.

Testimony of Vocational Expert
As noted above, the vocational expert in this matter,

Dr. Vandergoot, testified that an individual would be able to
perform

the

positions

assembler,

and

grocery

functional

capacity

of

electronics

bagger

that

(the

included,

worker,
“Jobs”)
among

printing
with

other

a

screen

residual

things,

inability to perform jobs requiring binocular vision.

the

(R. 80-83.)

Dr. Vandergoot testified that his testimony was consistent with
the “Dictionary Occupational Titles and its related publications.”6
(R. 85.) Plaintiff argues that the ALJ erred in failing to address
the conflict between Dr. Vandergoot’s testimony and the Dictionary
of Occupational Titles (“DOT”) and Selected Characteristics of
Occupations.

(Pl.’s Br. at 20-21.)

Particularly, Plaintiff avers

that the Jobs require “frequent” or “occasional” near acuity and
“occasional”

depth

perception

and

thus

are

inappropriate

Plaintiff due to his blindness in his right eye.
22-23.)

for

(Pl.’s Br. at

The Court finds that remand is appropriate to permit the

ALJ to develop the record and potentially resolve any conflict
between Dr. Vandergoot’s testimony and the DOT.

The Dictionary of Occupational Titles is a Department of Labor
publication that “gives a job type a specific code . . . and
establishes, among other things, the minimum skill level and
physical exertion capacity required to perform that job.”
Brault v. Social Sec. Admin. Comm’r, 683 F.3d 443, 446 (2d Cir.
2012).
6

25

The Court acknowledges that Plaintiff’s counsel not only
stipulated to Dr. Vandergoot’s qualifications, but also declined
to cross-examine Dr. Vandergoot.

(R. 77, 84-85.)

However, “in

the non-adversarial context of a disability benefits hearing it
remains the responsibility of the ALJ to fully develop the medical
record so as to [e]nsure an accurate assessment of a claimant’s
[residual functional capacity].”

Verdaguer v. Colvin, No. 12-CV-

6858, 2013 WL 6426931, at *11 (S.D.N.Y. Dec. 9, 2013).

While the

ALJ found that Dr. Thurkal’s consultative examination “indicate[s]
possible limitations in depth perception which are considered in
the

[Plaintiff’s]

residual

functional

capacity,

but

are

not

indicative of visual deficits that have significantly limited the
claimant’s ability to engage in various activities,” (R. 28), the
record

is

silent

as

to

the

effect

blindness on his depth perception.

of

Plaintiff’s

right-eye

Although Dr. Thurkal observed

that Plaintiff was blind in his right eye with decreased visual
acuity in the left eye, he did not indicate the extent that
Plaintiff’s right-eye blindness affects his depth perception.
336, 338.)

(R.

Dr. Verdrager concluded that despite his right-eye

blindness, Plaintiff had “unlimited” near acuity, far acuity,
accommodation, and color vision, but did not indicate whether
Plaintiff’s depth perception was limited.7

(R. 399.)

While the

The ALJ accorded “little weight” to Dr. Verdrager’s internal
consultative examination with respect Plaintiff’s back pain “in
7

26

ALJ noted that “[a]mple records . . . indicate no limitations in
the [Plaintiff’s] ability to travel, handle objects, engage in
cleaning or self-care activities, or otherwise get around due to
vision difficulties,” the Court finds that a clearer explanation
is required as to Plaintiff’s depth perception.

(R. 28.)

Additionally, the Court finds that the record must be
further developed with respect to Plaintiff’s near and far acuity.
As previously noted, Dr. Thukral concluded that Plaintiff has
decreased visual acuity in his left eye; however, Dr. Verdrager
concluded that Plaintiff has “unlimited” near acuity and far
acuity.

(R. 336, 399.)

A clearer explanation is required to

resolve this apparent inconsistency.
The DOT provides that the occupation of electronics
worker requires frequent near acuity, no far acuity, and occasional
depth perception, U.S. Dep’t of Labor, Dictionary of Occupational
Titles, Code 726.687-010, 1991 WL 679633 (4th ed., 1991); the
occupation of printing screen assembler requires frequent near
acuity, no far acuity, and occasional depth perception, U.S. Dep’t
of Labor, Dictionary of Occupational Titles, Code 979.684-042,

light of records documenting a history of treatment for back
pain stemming from a motor-vehicle accident.” (R. 29.)
Although the ALJ did not reference Dr. Verdrager by name, he
referred to Exhibit 9F, which is Dr. Verdrager’s Physical
Residual Functional Capacity Assessment. (R. 29, 397.) The
ALJ did not indicate what, if any, weight Dr. Verdrager’s
examination was accorded with respect to Plaintiff’s vision.
27

1991 WL 688690 (4th ed., 1991); and the occupation of grocery
bagger

requires

occasional

near

acuity,

no

far

acuity,

and

occasional depth perception, U.S. Dep’t of Labor, Dictionary of
Occupational Titles, Code 920.687-014, 1991 WL 687964 (4th ed.
1991). In the event that the ALJ determines that Plaintiff’s depth
perception and/or visual acuity results in a residual functional
capacity

in

which

he

must

avoid

jobs

with

occasional

depth

perception or occasional to frequent near acuity, he will be
required

to

resolve

the

Vandergoot’s testimony.

conflict

between

the

DOT

and

Dr.

Patti v. Colvin, No. 13-CV-1123, 2015 WL

114046, at *6 (W.D.N.Y. Jan. 8, 2015) (“The Social Security
Regulations [ ] place an affirmative duty on the ALJ to identify
and resolve any conflict between the vocational expert’s testimony
and the DOT before relying on such testimony.”).

See also Brault,

683 F.3d at 446.
Accordingly, remand is appropriate where, as here, “due
to inconsistencies in the medical evidence and/or significant gaps
in the record, ‘further findings would . . . plainly help to assure
the proper disposition of [a] claim.’”
06-CV-4861,

2008

WL

267429,

at

*8

Kirkland v. Astrue, No.

(E.D.N.Y.

Jan.

29,

2009)

(alterations in original) (quoting Butts v. Barnhart, 388 F.3d
377, 386 (2d Cir. 2004)).

See also 42 U.S.C. § 405(g).
CONCLUSION

For the foregoing reasons, the Commissioner’s motion is
28

DENIED, Plaintiff’s motion is GRANTED, and this action is REMANDED
for further proceedings consistent with this Memorandum and Order.
The Clerk of the Court is DIRECTED to mark this matter CLOSED.

SO ORDERED

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
8 , 2016
Central Islip, New York

29