Crampton v. Colvin

Filing 11

DECISION AND ORDER: It is ORDERED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 9 ) is GRANTED in part and DENIED in part. It is further ORDERED that Defendant's motion for judgment on the pleadings (Dkt. No. 10 ) is DEN IED in part and GRANTED in part. It is further ORDERED that this matter is REMANDED to Defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings consistent with this Decision and Order. Signed by Magistrate Judge Therese Wiley Dancks on 6/29/2017. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
JERALD CRAMPTON,
Plaintiff,
v.

3:16-CV-0356
(TWD)

COMM’R OF SOC. SEC.,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

LACHMAN & GORTON LAW FIRM
Counsel for Plaintiff
P.O. Box 89
1500 East Main Street
Endicott, NY 13761

PETER A. GORTON, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza
New York, NY 10019

BENIL ABRAHAM, ESQ.

THÉRÈSE WILEY DANCKS, United States Magistrate Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Jerald Crampton
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff’s motion for judgment on the
pleadings and Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 9, 10.) For the
reasons set forth below, Plaintiff’s motion for judgment on the pleadings is granted in part and
denied in part, and Defendant’s motion for judgment on the pleadings is denied in part and
granted in part.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1974, making him 37 years old at his alleged onset date and 40 years
old at the date of the final Social Security Administration (“SSA”) decision. Plaintiff has a 10th
grade education and past work as a maintenance worker. Generally, Plaintiff alleges disability
consisting of hip and back pain, arthritis, seizure disorder, pinched nerve in the neck, reading and
math disorder with associated anxiety, poor sleep, history of ulcer and gastroesophageal reflux
disorder, thyroid nodule, and shoulder pain.
B.

Procedural History

Plaintiff applied for Disability Insurance Benefits and Supplemental Security Income on
October 24, 2012. Plaintiff’s application was initially denied on February 25, 2013, after which
he timely requested a hearing before an Administrative Law Judge (“ALJ”). Plaintiff appeared
at a video hearing before ALJ Bruce S. Fein on July 29, 2014. On October 14, 2014, the ALJ
issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 1223. 1) On February 25, 2016, the Appeals Council denied Plaintiff’s request for review, making
the ALJ’s decision the final decision of the Commissioner. (T. 1-3.)
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following seven findings of fact and
conclusions of law. (T. 13-21.) First, the ALJ found that Plaintiff is insured for disability
benefits under Title II until December 31, 2018. (T. 14.) Second, the ALJ found that Plaintiff
1

The Administrative Transcript is found at Dkt. No. 8. Citations to the Administrative
Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein
will be used rather than the page numbers assigned by the Court’s CM/ECF electronic filing
system.
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has not engaged in substantial gainful activity since February 28, 2012, the alleged onset date.
Id. Third, the ALJ found that Plaintiff’s chronic lumbago, status-post total hip replacement with
left hip pain, seizure disorder, learning disorder, and mood disorder are severe impairments. (T.
14-16.) Fourth, the ALJ found that Plaintiff’s severe impairments do not meet or medically
equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). (T.
16-18.) More specifically, the ALJ considered Listing 1.02 (dysfunction of a joint), 1.04
(disorders of the spine), 11.02 (convulsive epilepsy), 11.03 (non-convulsive epilepsy), 12.02
(organic mental disorders), 12.04 (mood disorders), and 12.05 (intellectual disability). Id. Fifth,
the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to
lift/carry 20 pounds occasionally and 10 pounds frequently; stand
for 6 hours out of an 8 hour workday with normal breaks; walk for
6 hours out of an 8 hour workday with normal breaks; sit for 6 hours
out of an 8 hour workday with normal breaks; occasionally climb
stairs, balance, kneel, stoop, crouch, and crawl; never climb ropes,
ladders, or scaffolds; should avoid concentrated exposure to
unprotected heights and should avoid operating machinery; and is
limited to work consisting of simple, routine and repetitive tasks.
The claimant has no other exertional or non-exertional limitations.
(T. 18.) Sixth, the ALJ found that Plaintiff has past relevant work as a maintenance worker, but
that he is unable to perform that job with the limitations in the RFC assessment. (T. 21.)
Seventh, and finally, the ALJ determined that Plaintiff was not disabled based on application of
the Medical-Vocational Guidelines, finding that Plaintiff’s additional non-exertional limitations
had little-to-no effect on the occupational base of unskilled light work. (T. 22.)
D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff asserts four arguments in support of his motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ made an improper credibility determination. (Dkt.

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No. 9 at 7-13. 2) Plaintiff argues that the ALJ’s notation of conservative treatment was erroneous
because Plaintiff underwent invasive treatments such as injection therapy, physical therapy, and
hip replacement and because there was no evidence showing that more aggressive treatment was
available. Id. at 8. Plaintiff also argues that the credibility determination is not supported
because the ALJ did not show that Plaintiff’s reported activities were comparable to full-time
work and did not discuss pertinent evidence such as that related to Plaintiff’s psychiatric
hospitalizations, mental health treatment, and his minimization of psychiatric issues to his
treatment providers. Id. at 8-12.
Second, Plaintiff argues that the mental RFC is not supported by substantial evidence and
asserts that “limiting Plaintiff to simple work does not necessarily properly address his
psychiatric issues.” Id. at 12. Plaintiff more specifically argues that the ALJ’s assessment was
based on “outdated and incomplete information that fails to take into account Plaintiff’s most
serious psychiatric decompensations.” Id. at 13.
Third, Plaintiff argues the ALJ improperly weighed the medical opinion evidence. Id. at
13-20. In terms of the physical opinions, Plaintiff argues that the ALJ erred in affording great
weight to the opinion of consultative examiner Gilbert Jenouri, M.D., and in adopting portions of
the opinion from treating physician Matthew Bennett, M.D., while rejecting other portions. Id. at
13-16. Plaintiff further argues that the ALJ erred in discounting various opinions regarding
Plaintiff’s ability to stand, including one from Physician Assistant (“P.A.”) Paul Hodgeman. Id.
at 16-17. As a final corollary, Plaintiff argues that there was a gap in the record that the ALJ

2

Page numbers in citations to the parties’ briefs refer to the actual page numbers of the
brief rather than the page number assigned by the Court’s electronic filing system.
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failed to develop due to the lack of an assessment of Plaintiff’s ability stand and walk after his
hip replacement. Id. at 17.
In terms of the mental opinions, Plaintiff argues that the ALJ erred in relying on opinions
from the examining and non-examining consultants because these opinions were rendered prior
to Plaintiff’s hospitalizations and were therefore “outdated.” Id. at 17-18. Plaintiff also argues
that the non-examining consultant failed to provide a supporting explanation to show that his
conclusions were justified. Id. at 18. Plaintiff then argues that the ALJ erred in rejecting various
opinions that Plaintiff was totally disabled and in failing to re-contact those sources for
clarification. Id. at 18-20.
Fourth, Plaintiff argues that the ALJ’s Step Five determination is not supported by
substantial evidence because Plaintiff’s significant non-exertional impairments precluded
application of the Medical-Vocational Guidelines as a framework for that determination. Id. at
20-21.
Generally, Defendant asserts three arguments in support of her motion for judgment on
the pleadings. In response to Plaintiff’s first argument, Defendant argues the ALJ’s credibility
determination was supported by substantial evidence. (Dkt. No. 10 at 5-8.) More specifically,
Defendant argues that the ALJ did not err in considering the conservative treatment Plaintiff had
received since his hip surgery, that the ALJ’s consideration of Plaintiff’s reported daily activities
was proper, and that the ALJ properly discussed and considered evidence related to Plaintiff’s
mental symptoms including his two psychiatric hospitalizations. Id. at 4-8.
Next, in response to Plaintiff’s third argument, Defendant argues that the ALJ properly
weighed the medical opinion evidence. Id. at 8-15. More specifically, Defendant argues that the

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ALJ properly weighed the opinions from Dr. Jenouri, Dr. Bennett, and P.A. Hodgeman when
assessing Plaintiff’s physical functional capacity. Id. at 8-13. Defendant also argues that the
ALJ properly relied on opinions related to Plaintiff’s mental functioning from State Agency
psychological consultant L. Blackwell, Ph. D., examining physician Robert Russell, Ed. D., and
consultative examiner Cheryl Loomis, Ph. D., because treatment records from after Plaintiff’s
psychiatric hospitalizations did not show greater mental limitations than the ALJ accounted for
in the RFC. Id. at 13-15. Defendant then argues that the ALJ was not required to afford any
special significance to generic opinions that Plaintiff was disabled because that is an issue
reserved to the Commissioner. Id. at 15.
Finally, in response to Plaintiff’s second and fourth argument, Defendant argues that the
Step Five determination is supported by substantial evidence because the ALJ properly
accounted for Plaintiff’s mental limitations with a restriction to simple, routine, and repetitive
tasks, and because the ALJ properly used the Medical-Vocational Guidelines as a framework for
decision-making given that the additional non-exertional limitations in the RFC assessment had
little to no effect on the occupational base of unskilled light work. Id. at 16-17.
II.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether an
individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906 F.2d
856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if the
correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for

6

doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); see alao Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to “more than a
mere scintilla,” and has been defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(internal quotation and citation omitted). Where evidence is deemed susceptible to more than
one rational interpretation, the Commissioner’s conclusion must be upheld. See Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis of
the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)
(citation omitted).

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B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987). The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. 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. 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 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is
afflicted with a “listed” impairment is unable to perform substantial
gainful activity. 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. 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. Under the cases
previously discussed, the claimant bears the burden of proof as to
the first four steps, while the [Commissioner] must prove the final
one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982), accord McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or nondisability can be made, the SSA
will not review the claim further.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003).

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III.

ANALYSIS
A.

Whether the Credibility Determination is Supported by Substantial Evidence

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (See Dkt. No. 10 at 5-8.) To those
reasons, the Court adds the following analysis.
In determining whether a claimant is disabled, the ALJ must also make a determination
as to the credibility of the claimant’s allegations. “An administrative law judge may properly
reject claims of severe, disabling pain after weighing the objective medical evidence in the
record, the claimant’s demeanor, and other indicia of credibility, but must set forth his or her
reasons with sufficient specificity to enable us to decide whether the determination is supported
by substantial evidence.” Schlichting v. Astrue, 11 F. Supp. 3d 190, 205 (N.D.N.Y. 2012)
(quoting Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999)). The Second Circuit
recognizes that “[i]t is the function of the [Commissioner], not [reviewing courts], to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the claimant,” and
that “[i]f there is substantial evidence in the record to support the Commissioner’s findings, the
court must uphold the ALJ’s decision to discount a claimant’s subjective complaints of pain.”
Id. at 206 (quoting Carroll v. Sec’y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir.
1983); Aponte v. Sec’y, Dep’t of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)).
Due to the fact that the ALJ has “the benefit of directly observing a claimant’s demeanor and
other indicia of credibility,” the ALJ’s credibility assessment is generally entitled to deference.
Weather v. Astrue, 32 F. Supp. 3d 363, 381 (N.D.N.Y. 2012) (citing Tejada v. Apfel, 167 F.3d
770, 776 (2d Cir. 1999)).

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Here, the ALJ found that Plaintiff’s allegations regarding the intensity, persistence, and
limiting effects of his symptoms were not entirely credible. (T. 19.) Although the medical
imaging showing degeneration of his back and left hip, treatment evidence showing antalgic gait
and tenderness, and his pursuit of specialized care were consistent with Plaintiff’s reports of
physical symptoms, the ALJ found that the severity Plaintiff reported was not consistent with the
remainder of the evidence. Id. The ALJ noted the fact that he had experienced only one seizure,
imaging of his shoulder and cervical spine showed minimal abnormalities, his relied on
conservative treatment for the symptoms, and he reported various activities of daily living. Id.
The ALJ likewise found that, although Plaintiff’s reports of mental symptoms were consistent
with intelligence testing and his hospitalizations for suicidal ideation, the severity Plaintiff
reported was not consistent with treatment records showing few mood abnormalities on
examinations and his reported activities of daily living. Id. The ALJ lastly noted that Plaintiff’s
earnings record “[did] not enhance” his credibility. (T. 20.)
Plaintiff does not challenge that the ALJ provided specific reasons for finding his
allegations were not entirely credible, but rather argues that the reasons the ALJ provided were
not supported by the evidence or consistent with applicable legal standards. (Dkt. No. 9 at 8-12.)
Plaintiff’s arguments are unpersuasive.
Although Plaintiff’s allegations were supported by some evidence, the ALJ determined
that the severity of Plaintiff’s physical and mental symptoms were not supported by his reported
activities, which the ALJ specifically noted included cooking, getting his children ready for
school, doing light housework, doing light exercise, shopping, driving, socializing with friends,
weight-lifting and exercising, reading the Bible and magazines, and managing money. (T. 19.)

10

At the hearing, Plaintiff testified he could do dishes after which he would sit down with
his feet up, do low-impact exercise such as an elliptical or exercise bike for five-to-ten minutes,
mop his kitchen, pick up around the front room, cook “not often,” shop, do laundry, and take out
the garbage. (T. 45-49, 53-54.) He testified he can read “simple stuff” and perform simple
arithmetic like adding and subtracting. (T. 54.) In a function report, Plaintiff indicated he did
not have problems with self-care activities such as dressing, bathing, shaving, feeding himself, or
using the toilet. (T. 214-15.) He reported occasionally cooking, doing dishes and occasionally
doing laundry, grocery shopping twice per month, watching television, sitting on his porch, and
engaging in social activities with family twice a week. (T. 215-18.)
On July 6, 2012, Plaintiff reported to Matthew Myette, P.T., that he had free weights and
a Total Gym at home for exercise. (T. 357.) On September 19, 2012, examining physician Dr.
Russell noted that Plaintiff was muscular with broad strong shoulders and arms like a weight
lifter and that Plaintiff had reported he was still lifting weights. (T. 375, 378.) On February 28,
2013, Plaintiff reported he was being careful when exercising. (T. 557.) On August 5, 2013,
Plaintiff was noted to be performing physical therapy exercises without difficulty other than
some issues with supine straight leg raising. (T. 571.) On March 31, 2014, Plaintiff reported he
was a little sore from doing more yoga and home exercises. (T. 585.) On April 7, 2014,
Plaintiff’s wife reported that he was doing various exercises on his Total Gym at home. (T. 587.)
On April 23, 2014, Plaintiff reported he was doing his exercises on a regular basis. (T. 589.)
Plaintiff argues that these activities do not provide substantial evidence to support the
ALJ’s credibility finding because the ALJ failed to show that these activities were comparable to
full-time work or that they showed an ability to perform light work specifically, citing Balsamo

11

v. Chater, 142 F.3d 75, 81-82 (2d Cir. 1998) as support for his argument. (Dkt. No. 9 at 8-9.)
However, Balsamo presents a different situation than the one present in Plaintiff’s claim.
In Balsamo, the Second Circuit found error in the ALJ’s citation to the plaintiff’s ability
to periodically attend church and go shopping with his wife on occasion as evidence the plaintiff
was not homebound in order to support the ALJ’s ultimate determination that the plaintiff could
perform sedentary work. Balsamo, 142 F.3d at 81. However, in the case now before this Court,
Plaintiff’s reported activities (as detailed above) are well beyond the level of what the plaintiff
reported in Balsamo and include the ability to perform daily activities on a much more regular
basis. While Plaintiff is correct in stating that the ALJ cannot expect a claimant to be completely
incapacitated in order to be disabled as the ALJ did in Balsamo, the ALJ did not hold Plaintiff to
any such extreme standard here. See Morris v. Comm’r of Soc. Sec., No. 12-CV-1795
(MAD/CFH), 2014 WL 1451996, at *8 (N.D.N.Y. Apr. 14, 2014) (“The issue is not whether
Plaintiff’s limited ability to undertake normal daily activities demonstrates her ability to work.
Rather, the issue is whether the ALJ properly discounted Plaintiff’s testimony regarding her
symptoms to the extent that it is inconsistent with other evidence.”)
There was nothing unreasonable in the ALJ’s determination that the picture presented by
consideration of Plaintiff’s activities as a whole, particularly when considered in conjunction
with the medical treatment evidence and the opinion evidence, was not consistent with the
significant limitations Plaintiff alleged. This Court declines to re-weigh the evidence in search
of a different conclusion where, as here, there is substantial evidence to support the ALJ’s
conclusion. Schlichting, 11 F. Supp. 3d at 206. Additionally, the extent of a claimant’s activities
of daily living is one of the specific factors the ALJ is required to consider when assessing

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credibility. 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i); SSR 96-7p, 1996 WL 374186 (July
2, 1996). 3 The ALJ’s consideration of Plaintiff’s activities of daily living was therefore proper
under the applicable legal standards and constituted a specific and clear reason for the adverse
credibility finding.
In addition to assessing Plaintiff’s activities of daily living, the ALJ also pointed to
multiple other specific and clear reasons for the adverse credibility determination, as already
noted above. Plaintiff does not challenge the validity of the ALJ’s citation to the fact that
Plaintiff only had a single seizure within the relevant period and that imaging of his shoulder and
neck showed little abnormality, despite Plaintiff listing these impairments as ones impacting his
disability status. (T. 201.) Although Plaintiff does argue that certain portions of the record do
show mental health symptoms, Plaintiff’s selective reading of the evidence does not undermine
the fact that the ALJ’s finding was supported by substantial evidence, including the fact that
Plaintiff was not noted to have abnormal psychiatric findings on routine physical examinations
and the few sources who did examine him specifically in relation to his mental impairments

3

SSR 96-7p was superseded by SSR 16-3p when that newer Ruling became effective on
March 28, 2016. However, because the final Agency decision was issued prior to that date, this
Court will apply the Ruling that was in effect when that final Agency decision was rendered. See
Hoke v. Colvin, No. 1:14-CV-0663 (GTS/CFH), 2015 WL 3901807, at *17 (N.D.N.Y. June 25,
2015) (finding no error in the ALJ’s consideration of Global Assessment of Functioning
(“GAF”) scores because the court indicated that the plaintiff had not provided any evidence that
a more recently-accepted SSA policy regarding GAF scores was intended to be applied
retroactively); Nutkins v. Shalala, No. 92-CV-0040 (TMH/GJD), 1994 WL 714252, at *3
(N.D.N.Y. Dec. 22, 1994) (declining to apply a new regulation retroactively to the plaintiff’s
claim) (citing NLRB v. Long Island College Hosp., 20 F.3d 76, 81 (2d Cir. 1994)). However,
this Court does note that both SSR 96-7p and SSR 16-3p indicate that the ALJ is required to
consider a claimant’s activities of daily living when assessing credibility. See SSR 96-7p, 1996
WL 374186; SSR 16-3p, 2016 WL 1237954 (Mar. 24, 2016).
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noted primarily mild symptoms other than the few discrete examples Plaintiff highlights. 4 (See,
e.g., T. 375-77, 448, 457, 466-67, 595-96.)
Additionally, Plaintiff argues that the ALJ erred in classifying his treatment as
conservative because of his history of left hip arthroscopy and total left hip replacement. (Dkt.
No. 9 at 8.) However, because the ALJ has provided other specific and clear reasons supporting
the credibility determination, whether or not the ALJ’s classification of Plaintiff’s treatment was
inappropriate is at most harmless error because those other reasons necessitate that this Court
uphold the ALJ’s credibility finding. See Schlichting, 11 F. Supp. 3d at 206-07 (finding
harmless error in the ALJ’s adverse inference of a failure to pursue treatment where the
credibility analysis as a whole was supported by substantial evidence); see also Taylor v. Colvin,
No. 3:14-CV-0928 (GTS), 2016 WL 1049000, at *8-9 (N.D.N.Y. Mar. 11, 2016) (noting that the
ALJ’s failure to inquire into the reasons for gaps in mental health treatment prior to using those
gaps against the plaintiff’s credibility was harmless where the ALJ provided other reasons
supported by substantial evidence to support the overall credibility determination).
In terms of Plaintiff’s earnings record, the evidence shows that Plaintiff had yearly
earnings falling below the presumptive level of substantial gainful activity (“SGA”) between
1990 and 2008, though he did earn amounts around or above SGA from 2009 through 2012. (T.
175-76.) While the ALJ did not explicitly state that Plaintiff’s earnings history reflected
adversely on his credibility, an ALJ is entitled to consider a claimant’s work history as a factor

4

Although Plaintiff also puts forth case law seemingly to argue that the ALJ is not
permitted to use a lack of mental health treatment against him when assessing credibility, as
Defendant notes, the ALJ never actually indicates that Plaintiff is less credible based on a lack of
mental health treatment. (Dkt. No. 9 at 11; Dkt No. 10 at 8.) Rather, the ALJ indicated that few
out of all of the examinations in the record revealed mood abnormalities. (T. 19.)
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when making a credibility determination. See Stroud v. Comm’r of Soc. Sec., No. 13-CV-3251
(AT/JCF), 2014 WL 4652581, at *11 (S.D.N.Y. Sept. 8, 2014) (“‘A claimant’s unexplained poor
work history may negatively impact on the claimant’s credibility.’”) (quoting Marine v.
Barnhart, No. 00-CV-9392 (GBD), 2003 WL 22434094, at *4 (S.D.N.Y. Oct. 24, 2003)); Ellis v.
Comm’r of Soc. Sec., No. 3:11-CV-1205 (GTS/ATB), 2012 WL 5464632, at *12 (N.D.N.Y.
Sept. 7, 2012) (“Although work history may be deemed probative of credibility, it is one of the
many factors to be considered.”) (citing Campbell v. Astrue, 465 F. App’x 4, 7 (2d Cir. 2012);
Wavercak v. Astrue, 420 F. App’x 91, 94 (2d Cir. 2011)). Although the ALJ did not elaborate as
to what extent this consideration factored into the credibility determination and instead merely
indicated that it “did not enhance” Plaintiff’s credibility, there was no error in the ALJ’s choice
to assess or mention it in relation to Plaintiff’s credibility. (T. 20.)
For all these reasons, the credibility determination is supported by substantial evidence,
and remand is not required on this basis.
B.

Whether the ALJ Properly Weighed the Opinion Evidence

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (See Dkt. No. 10 at 8-15.) To those
reasons, the Court adds the following analysis.
In terms of weighing opinion evidence, the Second Circuit has long recognized the
“treating physician rule” set out in 20 C.F.R. §§ 404.1527(c) and 416.927(c). “Thus, the opinion
of a claimant’s treating physician as to the nature and severity of the impairment is given
controlling weight so long as it is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in the case

15

record.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008)). However, there are situations where the treating physician’s opinion is
not entitled to controlling weight, in which case “the ALJ must explicitly consider, inter alia: (1)
the frequen[c]y, length, nature, and extent of treatment; (2) the amount of medical evidence
supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence;
and (4) whether the physician is a specialist.’” Greek, 802 F.3d at 375 (quoting Selian v. Astrue,
708 F.3d 409, 418 (2d Cir. 2013)). “Where an ALJ’s reasoning and adherence to the Regulations
is clear, she is not required to explicitly go through each and every factor of the Regulation.”
Blinkovitch v. Comm’r of Soc. Sec., No. 3:15-CV-1196 (GTS/WBC), 2017 WL 782979, at *4
(N.D.N.Y. Jan. 23, 2017) (citing Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013)), adopted
by 2017 WL 782901 (N.D.N.Y. Feb. 28, 2017). After considering these factors, “the ALJ must
‘comprehensively set forth [his] reasons for the weight assigned to a treating physician’s
opinion.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129). “The failure to provide
‘good reasons’ for not crediting the opinion of a claimant’s treating physician is a ground for
remand.” Id. (quoting Burgess, 537 F.3d at 129-30).
The factors for considering opinions from non-treating medical sources are the same as
those for assessing treating sources, with the consideration of whether the source examined the
claimant replacing the consideration of the treatment relationship between the source and the
claimant. See 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6). Additionally, when weighing
opinions from sources who are not considered “medically acceptable sources” 5 under the

5

Medically acceptable sources are noted to include the following: licensed physicians;
licensed or certified psychologists; licensed optometrists; licensed podiatrists; and qualified
speech-language pathologists. SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006).
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regulations, the ALJ must consider the same factors as used for evaluating opinions from
medically acceptable sources. Saxon v. Astrue, 781 F. Supp. 2d 92, 104 (N.D.N.Y. 2011) (citing
Canales v. Comm’r of Soc. Sec., 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010)); SSR 06-03p, 2006
WL 2329939.
In terms of Plaintiff’s physical functioning, the ALJ afforded great weight to consultative
examiner Dr. Jenouri’s opinion that Plaintiff should avoid operating machinery, finding that
limitation consistent with Plaintiff’s seizure history; however, the ALJ declined to accept Dr.
Jenouri’s opinion that Plaintiff should avoid driving because “his treating neurologist indicates
the claimant is now eligible to drive due to his lack of seizures.” (T. 20.) Similarly, the ALJ
indicated he afforded great weight to the March 15, 2012, opinion from Nurse Practitioner
(“N.P.”) Sherrie Adler that Plaintiff should exercise seizure precautions “including no driving,
operating heavy machinery, climbing on ladders, [and] being under open flame for a minimum of
six months,” noting the same reasons. Id.
The ALJ afforded some weight to the opinion from treating physician Dr. Bennett, noting
that Dr. Bennett is “an acceptable medical source with specialized experience in orthopedic
surgery.” (T. 20.) The ALJ found that Dr. Bennett’s opinion that Plaintiff could lift over ten
pounds and had no restrictions in standing or walking were consistent with the medical imaging,
presentation during exams, positive response to orthopedic treatment, and Plaintiff’s reports that
he performed light housework and light exercise. Id. The ALJ declined to afford greater weight
to Dr. Bennett’s opinion that Plaintiff could sit less than six hours, that he would be off-task
more than 20 percent of the workday, and that he would miss two days of work per month
because he found these restrictions unsupported by Dr. Bennett’s treatment records and the other

17

clinical findings in the record that failed to show difficulties remaining seated, maintaining
attention, or regularly attending appointments; the ALJ also found these restrictions inconsistent
with Plaintiff’s reported daily activities. Id.
The ALJ also afforded some weight to the opinion from P.A. Hodgeman, noting that
although P.A. Hodgeman was not an acceptable medical source, he had a treatment relationship
with Plaintiff. (T. 20.) The ALJ found that P.A. Hodgeman’s opinion that Plaintiff could lift and
carry 10 to 30 pounds, that he had no limitations in sitting or walking, and that he had moderate
limitations in squatting and bending were consistent with Plaintiff’s impairments and his reports
of reduced physical activities since the alleged onset date. Id. However, the ALJ declined to
afford greater weight to the remainder of P.A. Hodgeman’s opinion indicating a moderate
limitation in standing because the ALJ found that limitation inconsistent with Plaintiff’s
presentation at examinations and with his reported activities of daily living. Id.
In terms of Plaintiff’s mental functioning, the ALJ afforded great weight to State Agency
psychiatric consultant Dr. Blackwell’s opinion that Plaintiff could perform at least unskilled
simple work because he found that opinion consistent with the intellectual testing, Plaintiff’s
presentation during exams, his positive response to conservative mental health treatment, and his
reported activities of daily living. (T. 20-21.) The ALJ also afforded great weight to the opinion
of examining physician Dr. Russell that Plaintiff would be able to perform jobs requiring little
knowledge of writing or math, citing the same reasons. (T. 21.)
The ALJ afforded some weight to the opinion of consultative examiner Dr. Loomis that
Plaintiff could perform simple tasks but had some mild deficits in attention, concentration, and
performing complex tasks, finding this opinion was consistent with the intellectual testing,

18

Plaintiff’s presentation during exams, his positive response to conservative mental health
treatment, and his reported activities of daily living. (T. 21.)
Plaintiff argues that the ALJ erred in weighing the above opinions, providing a number of
reasons specific to each opinion, but this Court does not find Plaintiff’s arguments as a whole
persuasive. (See Dkt. NO. 9 at 13-20.) As can be seen from the above discussion, the ALJ
explicitly indicated the weight he afforded to each opinion, specifically highlighted what
portions of opinions he accepted or rejected, and provided specific reasons for that acceptance or
rejection. (T. 20-21.) The ALJ’s discussion shows that he appropriately considered the relevant
factors for assessing opinion evidence as well. Id.; see also 20 C.F.R. §§ 404.1527(c),
416.927(c). The majority of Plaintiff’s more specific arguments in which he cites to some
evidence that supports his assertions are little more than requests that this Court re-weigh the
evidence, something that is not permitted within the limited scope of review for this appeal.
Lewis v. Colvin, 122 F. Supp. 3d 1, 7 (N.D.N.Y. 2015) (noting that, even where a plaintiff can
point to some evidence that supports his position, “a reviewing court ‘defers to the
Commissioner’s resolution of conflicting evidence’” and “is limited to determining whether the
[Commissioner’s] conclusions were supported by substantial evidence in the record and were
based on a correct legal standard”) (quoting Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d
Cir. 2012); Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)).
Plaintiff argues that the ALJ erred specifically in rejecting P.A. Hodgeman’s limitation
that Plaintiff would be moderately limited in standing, a term which is defined within the form
used as twenty-five percent. (T. 291.) However, Plaintiff does not show how this rejection in

19

any way impacted the validity of the ALJ’s decision. 6 Additionally, Plaintiff’s assertion that
there was a gap in the record due to what he asserts is a lack of a functional opinion related to
Plaintiff’s ability to stand and walk is not persuasive for one key reason: Dr. Bennett’s opinion,
which included a statement that Plaintiff could stand and walk eight hours in an eight hour
workday, was rendered in July 2014, a year after Plaintiff’s total left hip replacement. (T. 666,
672-73.) Although Dr. Bennett treated Plaintiff for his spinal impairment, treatment records
show that Dr. Bennett also addressed Plaintiff’s hip concerns personally and was aware of
Plaintiff’s treatment for his left hip, including his surgery and his leg length discrepancy. (T.
449-50, 454, 629-30.) On April 25, 2014, Dr. Bennett observed Plaintiff ambulated with a
steady gait and no ataxia. (T. 629.) His other examinations from July 2012 through January
2013 showed fairly little ongoing abnormality of functioning related to either Plaintiff’s back or
hip. (T. 448-55.) The physical therapy and other treatment from the period after Plaintiff’s hip
replacement shows that tenderness and other symptoms were ongoing, but do not support
Plaintiff’s assertions that Plaintiff’s hip pain and leg length discrepancy post-surgery caused
greater overall limitations in Plaintiff’s ability to stand and walk. (See, e.g., T. 538, 575-81, 587,
589-90, 592-94, 637, 640, 642.) Because Dr. Bennett’s opinion was rendered after Plaintiff’s
total hip replacement and the treatment evidence does not contradict the ALJ’s findings
regarding Plaintiff’s ability to stand and walk, there was no need to engage in further
development of the record on that issue.
6

An opinion that Plaintiff was twenty-five percent limited in his ability to stand seems to
indicate that Plaintiff would still be able to stand six hours in an eight-hour workday, as twentyfive percent of eight hours equals two hours. Given that the ALJ found Plaintiff capable of
standing for six hours in an eight-hour workday, there does not appear to actually be a clear
inconsistency between the RFC finding and PA Hodgeman’s limitation, whether or not the ALJ
afforded less weight to that limitation.
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Additionally, in terms of the opinions related to Plaintiff’s mental impairments,
Plaintiff’s argument that those opinions were somehow unreliable because they were rendered
prior to Plaintiff’s two psychiatric hospitalizations is not availing. (Dkt. No. 9 at 17-18.) As will
be discussed in greater detail in Part III.C of this Decision and Order, the evidence does not
support greater ongoing limitations stemming from Plaintiff’s mood disorder and fails to show
that the symptoms Plaintiff displayed during his two hospitalizations were similar to the severity
of symptoms he experienced on a typical basis before or after those temporary exacerbations.
The ALJ notes Plaintiff’s hospitalizations in his discussion of the evidence, indicating that he
considered them when making his determination. (T. 15, 19.)
In terms of the ALJ’s decision to afford no weight to various statements that generically
indicated Plaintiff was disabled, the ALJ was entitled to decline to rely on these statements
because the question of whether a claimant is disabled is an issue reserved to the Commissioner.
Mortise v. Astrue, 713 F. Supp. 2d 111, 125 (N.D.N.Y. 2010) (“[A]n opinion concerning the
ultimate issue of disability, from any source, is reserved to the commissioner.”); Fuimo v.
Colvin, 948 F. Supp. 2d 260, 267 (N.D.N.Y. 2013) (holding “[i]t was proper to give little weight
to [a doctor’s] opinion, which concerned issues reserved to the Commissioner,” where the
opinion in question consisted of statements that the plaintiff was severely disabled and not
competitively unemployable) (citing 20 C.F.R. § 416.927(d)(1)). Contrary to Plaintiff’s
arguments, there was no need for the ALJ to re-contact these sources in an effort to obtain
clarification or a functional assessment. There were multiple other opinions that did outline
more specific functional restrictions, including opinions from Plaintiff’s treating sources.
Therefore, there was no gap in the record that needed to be further developed and the ALJ had

21

more than adequate evidence to enable him to make a conclusion on the issue of Plaintiff’s
disability. It is clear from the ALJ’s discussion of the functional opinion evidence and the
medical and other evidence that the ALJ considered the evidence as a whole and his decision to
reject these opinions was supported by substantial evidence.
For all these reasons, the weight the ALJ afforded to the opinion evidence in the record is
supported by substantial evidence and consistent with applicable legal standards, and remand is
not required on this basis.
C.

Whether the ALJ Adequately Accounted for Plaintiff’s Mental Impairments
With a Limitation for Simple, Routine, and Repetitive Work

After carefully considering the matter, the Court answers this question in the negative for
the reasons outlined below.
Residual functional capacity (“RFC”) is defined as
what an individual can still do despite his or her limitations . . . .
Ordinarily, RFC is the individual’s maximum remaining ability to
do sustained work activities in an ordinary work setting on a regular
and continuing basis, and the RFC assessment must include a
discussion of the individual’s abilities on that basis. A “regular and
continuing basis” means 8 hours a day, for 5 days a week, or an
equivalent work schedule.
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2
(July 2, 1996)). “Work-related mental activities generally required by competitive, remunerative
work include the abilities to: understand, carry out, and remember instructions; use judgment in
making work-related decisions; respond appropriately to supervision, co-workers and work
situations; and deal with changes in a routine work setting.” SSR 96-8p, 1996 WL 374184, at
*6; accord SSR 85-15, 1985 WL 56857 (Jan. 1, 1985). “Ultimately, ‘[a]ny impairment-related
limitations created by an individual’s response to demands of work . . . must be reflected in the
22

RFC assessment.’” Hendrickson v. Astrue, No. 5:11-CV-0927 (LEK/ESH), 2012 WL 7784156,
at *3 (N.D.N.Y. Dec. 11, 2012) (quoting SSR 85-15, 1985 WL 56857, at *8).
Plaintiff argues that the ALJ’s limitation to “simple work” did not accurately account for
Plaintiff’s psychiatric symptoms, which Plaintiff asserts included issues with “anxiety, stress,
and his thinking processes.” (Dkt. No. 9 at 12-13.) Plaintiff further argues that the ALJ erred in
failing to address how Plaintiff’s preoccupation with his physical impairments and symptoms
that were noted on a few examinations during and around the time of his psychiatric
hospitalizations impacted his ability to perform the basic mental demands of unskilled work. Id.
Despite these arguments, Plaintiff fails to point to any evidence that these symptoms of his mood
disorder and preoccupation with his physical condition imposed any specific mental limitations
that were not encompassed by the ALJ’s restriction to simple, routine, and repetitive tasks.
It is important to note that the symptoms Plaintiff highlights, while serious, do not appear
to describe Plaintiff’s typical mental state. Although the record does show that Plaintiff
experienced temporary exacerbations of mental health symptoms that resulted in psychiatric
hospital admissions from November 24, 2013, to December 8, 2013, and from January 27, 2014,
to February 4, 2014, these are the only two instances where Plaintiff was observed to have such
serious symptoms. (T. 525-29, 531-36.) Plaintiff had stabilized on medication by the time he
was discharged from the 2013 admission with no subsequent mental health treatment until the
2014 psychiatric admission, at which time Plaintiff reported that he had been off his medication
for about a week due to missing an outpatient follow-up with his psychiatrist. (T. 527.)
Consequently, it appears Plaintiff’s suicide attempt that led to the second psychiatric
hospitalization was based in part on non-compliance with his medications; there is no evidence

23

that Plaintiff continued to experience such severe symptoms while compliant with his prescribed
medications.
On March 26, 2014, N.P. Amy Cron did observe that Plaintiff was pleasant, was very
focused on his back and hip problems rather than his mental health, had slow and soft-spoken
speech, reported auditory and visual hallucinations, displayed a circumstantial and tangential
thought process with distractibility, was preoccupied, and had fair intellectual functioning and
attention with fair-to-poor concentration, insight, and judgment; N.P. Cron also noted his
prescribed medications included clonazepam, Seroquel, and Zoloft. 7 (T. 595-96.) However, on
April 9, 2014, N.P. Cron noted that Plaintiff had no current mood issues, though he “[s]till
struggles to articulate what was going on with him when he tried to kill himself.” (T. 600.) N.P.
Cron observed his affect was euthymic and appropriate, his perceptions were appropriate, he had
an organized but circumstantial and tangential thought process, he was preoccupied with his hip
problems, and he had an average intellect and fair concentration, attention, insight, and
judgment. Id. On May 14, 2014, and June 11, 2014, N.P. Cron observed Plaintiff had a
circumstantial thought process with preoccupations on his hip problems, but mental status
examinations were otherwise normal. (T. 603, 606.) The mental treatment evidence therefore

7

Clonazepam is a medication prescribed variously for seizures, anxiety, and panic attacks.
Clonazepam, NATIONAL INSTITUTE OF HEALTH U.S. NATIONAL LIBRARY OF MEDICINE,
https://medlineplus.gov/druginfo/meds/a682279.html (last visited June 28, 2017). Seroquel
(generic name quetiapine) is a medication variously prescribed for schizophrenia or mania and
depression associated with bipolar disorder. Quetiapine, NATIONAL INSTITUTE OF HEALTH U.S.
NATIONAL LIBRARY OF MEDICINE, https://medlineplus.gov/druginfo/meds/a698019.html (last
visited June 28, 2017). Zoloft (generic name sertraline) is a medication variously prescribed to
treat depression, obsessive compulsive disorder, panic attacks, posttraumatic stress disorder, and
social anxiety. Sertraline, NATIONAL INSTITUTE OF HEALTH U.S. NATIONAL LIBRARY OF
MEDICINE, https://medlineplus.gov/druginfo/meds/a697048.html (last visited June 28, 2017).
24

does not support Plaintiff’s contentions that he continued to suffer from the same severity of
mental health symptoms that he displayed at the beginning of his two hospitalizations.
Nor does the evidence in the record indicate that Plaintiff suffered from any ongoing
mental limitations as a result of his mood disorder that were not encompassed within a restriction
to simple, routine, and repetitive tasks. Consultative examiner Dr. Loomis found Plaintiff
capable of dealing with simple instructions, directions, and tasks, with only a mild impairment in
his ability to maintain attention and concentration and to perform complex tasks, maintain a
regular schedule, learn new tasks, make appropriate decisions, relate adequately with others, and
appropriately deal with stress. (T. 467.) However, a mild restriction does not indicate that the
ALJ was required to include a limitation in the RFC assessment beyond limiting Plaintiff to
simple, routine, and repetitive tasks; indeed, the record does not support any obvious greater
restrictions in these areas of functioning. Dr. Blackwell found Plaintiff capable of performing
unskilled and some semiskilled work. (T. 68.) These opinions and the overall mental health
treatment evidence provide substantial evidence supporting the ALJ’s limitation to simple,
routine, and repetitive tasks, and Plaintiff has not shown what other specific mental limitations
have not been accounted for with this restriction. See Burrows v. Comm’r of Soc. Sec., No. 3:15CV-1266 (GTS/WBC), 2017 WL 1274177, at *8-9 (N.D.N.Y. Mar. 3, 2017) adopted by 2017
WL 1162195 (Mar. 28, 2017) (finding that the ALJ was not required to account for additional
limitations where substantial evidence supported his mental RFC determination).
However, the evidence related to Plaintiff’s learning disorder, an impairment that the ALJ
also found severe, is a different matter. The ALJ afforded great weight to Dr. Russell’s opinion
that Plaintiff “would be able to perform jobs requiring little knowledge of writing or math,”
noting that it was consistent with the intellectual testing, Plaintiff’s presentation on examinations,
25

his positive response to conservative mental health treatment, and reported activities of daily
living. (T. 21.) Yet, the ALJ did not include in the RFC any specific limitation related to the
extent of reading and math Plaintiff can perform in the workplace. (T. 18.)
This Court is not convinced that a limitation to simple, routine, and repetitive tasks
clearly encompasses the extent of limitation in Plaintiff’s reading and math abilities that is shown
in the record. For example, Dr. Russell performed testing that showed Plaintiff performed at a
4th grade level in both reading and arithmetic. (T. 377.) He further noted that Plaintiff’s
functional academics were weak and that Plaintiff reported anxiety when his math or reading
skills were tested at jobs. (T. 378.) Plaintiff made similar reports at the hearing, indicating he
used to beg not to have to do reading or writing portions of things and he would simply copy
words from other places if he needed to write something specific on reports when he was
previously working. (T. 44-45.) He also reported failing the written portion of his driver’s test
at least once due to his issues with reading. (T. 36.)
The ALJ’s failure to explain why he chose not to incorporate a limitation related to
Plaintiff’s reading and writing abilities despite explicitly affording great weight to Dr. Russell’s
opinion indicating such limitations leaves the ALJ’s decision lacking the clarity necessary to
enable this Court to determine whether the ALJ’s findings are supported by substantial evidence.
See Hamedallah ex rel. E.B. v. Astrue, 876 F. Supp. 2d 133, 142 (N.D.N.Y. 2012) (“A court
‘cannot . . . conduct a review that is both limited and meaningful if the ALJ does not state with
sufficient clarity the legal rules being applied and the weight accorded the evidence
considered.’”) (quoting Morgan ex. rel. of Morgan v. Chater, 913 F. Supp. 184, 188-89
(W.D.N.Y. 1996)); Lee v. Astrue, No. 10-CV-6036 (CJS), 2011 WL 1675101, at *7-8 (W.D.N.Y.

26

May 4, 2011) (finding error meriting remand where the ALJ’s decision was internally
inconsistent).
Although Dr. Russell noted that, “[i]f he were physically able, he would be appropriate
for many other jobs requiring little knowledge of math and writing,” Dr. Russell did not assess
Plaintiff’s physical ability, nor is he a vocational expert, so this statement does not substitute for
actual vocational evidence that Plaintiff remained able to work when all the supported limitations
are considered. The ALJ limited Plaintiff to a range of light work in addition to his mental and
cognitive-related limitations. (T. 18.) In making his Step Five determination that Plaintiff
remained able to perform a significant number of jobs in the national economy, the ALJ relied on
the Medical-Vocational Guidelines as a framework for decision-making. The MedicalVocational Guidelines, however, do not expressly contemplate a restriction for minimal reading
and math, 8 and reading and math skills are not clearly encompassed in a limitation to simple,
routine, and repetitive tasks.
The ALJ does not make any attempt to explain how a limitation for “little knowledge of
reading and math,” in combination with Plaintiff’s other limitations, would not significantly
erode the occupational base of unskilled light work, nor do any of the Social Security Rulings he
cites speak to the impact such a restriction would have on the occupational base of unskilled
work. (T. 22.) See also SSR 83-14, 1983 WL 31254; SSR 85-15, 1985 WL 56857. Had the
ALJ properly included this limitation in the RFC consistent with the weight he afforded to Dr.

8

The Medical-Vocational Guidelines do include a consideration of whether an individual
is literate or not as part of the educational considerations; however, this still does not address
whether a limitation in the ability to perform basic work-related mathematics tasks would
significantly erode the occupational base of other work in the national economy. See generally
20 C.F.R. § 404, Subpart P, App. II.
27

Russell’s opinion, consultation with a vocational expert would have been necessary to determine
the effect this limitation would have the occupational based of unskilled light work. See Zabala
v. Astrue, 595 F.3d 402, 410-11 (2d Cir. 2010) (noting that “[i]f a claimant has nonexertional
limitations that ‘significantly limit the range of work permitted by his exertional limitations,’ the
ALJ is required to consult with a vocational expert”) (quoting Bapp v. Bowen, 802 F.2d 601, 605
(2d Cir. 1986)). The ALJ’s failure to reconcile the weight afforded to Dr. Russell’s opinion with
the RFC determination is therefore harmful error because it is impossible for this Court to
determine whether the ALJ’s ultimate Step Five finding is supported by substantial evidence as a
result of this error.
For all these reasons, the ALJ’s mental RFC did not clearly account for all of the mental
limitations supported by the record. Remand is required for the ALJ to provide further
explanation for the inconsistency between his findings that Plaintiff’s learning disorder was a
severe impairment and that Dr. Russell’s opinion was entitled to great weight, and the omission
of any limitation relating to Plaintiff’s work-related reading and math capabilities.
D.

Whether the Step Five Finding is Supported By Substantial Evidence

Due to the ALJ’s lack of explanation as to why he failed to include limitations related to
Plaintiff’s reading and math abilities in the RFC despite affording Dr. Russell’s opinion great
weight, on remand, the ALJ will need to re-evaluate Plaintiff’s ability to perform other work in
the national economy at Step Five of the sequential evaluation, including obtaining vocational
expert testimony to determine the impact of Plaintiff’s reading and math abilities on his ability to
perform unskilled light work.

28

ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) is
GRANTED in part and DENIED in part; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 10) is
DENIED in part and GRANTED in part; and it is further
ORDERED that this matter is REMANDED to Defendant, pursuant to Sentence Four of
42 U.S.C. § 405(g), for further proceedings consistent with this Decision and Order.

Dated: June 29, 2017
Syracuse, New York

29