Gallup v. Astrue

Filing 20

MEMORANDUM-DECISION & ORDER that the Commissioner's motion for judgment on the pleadings (Dkt. No. 13) is DENIED; that pltf's motion for judgment on the pleadings (Dkt. No. 11) is GRANTED; that the Commissioner's decision is reversed and this matter is remanded for further proceedings consistent with this MDO; and that the Clerk of the Court is directed to enter judgment for the pltf and Close this Case. Signed by Senior Judge Norman A. Mordue on 6/3/2014. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
NICHOLAS GALLUP,
Plaintiff,

6:11-CV-1345 (NAM)

v.

COMMISSIONER OF SOCIAL SECURITY,
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Defendant.
___________________________________________
APPEARANCES:
Louise M. Tarantino, Esq.
Empire Justice Center
119 Washington Avenue
Albany, New York 12210
For Plaintiff

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Hon. Richard S. Hartunian, United States Attorney
Benil Abraham, Esq., Special Assistant United States Attorney
Social Security Administration
Office of Regional General Counsel, Region II
26 Federal Plaza - Room 3904
New York, New York 10278
Hon. Norman A. Mordue, Senior U.S. District Judge:

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MEMORANDUM DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Nicholas Gallup filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)

and asks the Court to reverse the Commissioner’s decision to deny his application for disability
benefits and remand this matter for payment of benefits. Presently before the Court are the
parties’ cross-motions for judgment on the pleadings. Dkt. Nos. 14, 16.
II.

BACKGROUND

Plaintiff was born on June 26, 1988. He left high school in ninth grade and reads at a
fourth or fifth grade level. He worked for Walmart as a “cart pusher” until he was fired in June
2009. T.39.
On January 20, 2010, plaintiff applied for child’s insurance benefits based on disability.
At the same time, he filed an application for supplemental security income. In both applications,
plaintiff alleged that he became disabled on June 8, 2009 and that he suffers, among other things,
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low back pain, depressive disorder, anxiety disorder, learning disorder, paranoid personality
disorder and borderline intellectual functioning. On May 13, 2011, after obtaining plaintiff’s
medical records and holding a hearing, Administrative Law Judge (“ALJ”) Arthur Patane issued a
decision finding that plaintiff “was not disabled as defined in section 223(d) of the Social Security
Act prior to June 25, 2010, the date he attained age 22.” T.28. On September 17, 2011, the

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Appeals Council denied plaintiff’s request for review and the ALJ’s decision became the
Commissioner’s final decision. T.1-6. This action followed.
III.

Administrative Hearing
On March 1, 2011, the ALJ conducted a hearing regarding plaintiff’s application for

disability benefits. T.34. Plaintiff testified that he was classified as emotionally disturbed and
learning disabled in school and placed in a special education class. T.43. Plaintiff stated that he
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completed eighth grade, left school when he was in ninth grade and has been unable to obtain his
GED. T.43. Plaintiff described his ability to add and subtract as “bad” and his ability to spell as
“very bad”. T.44. Plaintiff stated that he could not “read that well at all” and that he would “have
people read stuff to [him] and then most of the time [he will] understand some of it.” T.44.
Plaintiff stated that he last worked in June 2009, as a “cart pusher” for Walmart. T.38. He

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testified that he was terminated “due to absence and tardiness, because [he] had severe problems
with quite a few other workers that I was working with to the point where [he] had severe anger
issues and [he] would fly off the wall at them. I mean, I screamed and yelled at management.”
T.39.
Plaintiff testified that he lives in an apartment with one roommate. T.38. Plaintiff stated
that he has a driver’s license and a vehicle. T.41-42.
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Plaintiff testified that during the day, he “normally” goes to his aunt’s residence, where he
visits with her, watches television and eats all his meals. T.41. Plaintiff stated that he then goes
back home and goes to sleep. T.41.
Plaintiff stated that when he is at home, he uses his computer to “[p]lay numerous games”
and talk to friends who live “out of town.” T.42. Plaintiff testified that “[s]ometimes” he cleans

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his apartment. T.41. Plaintiff stated that he gets “sidetracked” “everyday with the simplest tasks”
and explained that when he tries to clean his house, he will start in his bedroom, “jump to the
living room, then jump to the kitchen and . . . all over the place.” T.45.
Plaintiff stated that the pain level in his back is an eight “on most days” but when it is
severe, “it’s a ten”. T.50. Plaintiff testified that he “toss[es] and turn[s] almost all night, trying to
get comfortable because the pain is going all the way up [his] back.” T.50. Plaintiff stated that the

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pain is “constant” and that if he stands for too long, i.e., thirty minutes, “it hurts and it’ll go up my
neck and it’ll go down to my legs.” T.50. Plaintiff testified that sitting “normally” causes back
pain, but that if he moves around, “then for the most part [he is] okay” and “can go back to sitting
again.” T.51. Plaintiff stated that he can sit “[m]aybe about an hour” before he needs to stand up
and move around. T.51.

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Plaintiff testified that his doctor prescribed Lortab for his back until his “ex-fiance” began
stealing it. T.55. Plaintiff stated that he also received a prescription for a muscle relaxant. T. 59.
Plaintiff testified that he takes “Ibuprofen and Aleve and Advil” for back pain. T.59. Plaintiff
testified that he also takes Cymbalta and Pepcid. T.43.
Plaintiff stated that his memory is “very bad” and that he forgets “appointments, names,
numbers” and medication, which his roommate reminds him to take. T.45. Plaintiff testified that
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his poor memory affects his driving and he forgets where he is going. T.44.
Plaintiff stated that he has no social habits and that he feels “paranoid to leave the house”
because he feels “that everyone is looking at me or everyone is talking about me and it’s really
scary.” T.47. Plaintiff testified that he goes grocery shopping at “12:00 or 1:00 in the morning”
when “the store is completely empty and if it’s not empty, there’s only a few people in there.”

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T.47.
Plaintiff testified that he has nightmares two to three times a week and that he has
problems with suicidal thoughts “three or four times a week.” T.47. Plaintiff testified that after his
uncle died, he heard him “talk to him almost every night” and on numerous occasions, he has
heard people calling his name when “there’s nobody there.” T.48. Plaintiff stated that he has
severe mood swings, “like one minute I could be talking really calm to somebody and the next

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minute I’m screaming and yelling at people.” T.48. Plaintiff stated that he recently had an
altercation with a customer service manager at a retail store who “was doing her job” and he
“started flipping and screaming at her along with other store managers”. T48. Plaintiff testified
that he has had fifteen or twenty angry outbursts since then. T.49.
IV.

ALJ’s Decision

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To be eligible for Social Security disability benefits, a claimant must establish “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.” 42 U.S.C. § 423(d)(1)(A). There is a five-step analysis for evaluating
disability claims:

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"In essence, if the Commissioner determines (1) that the claimant is not working, (2)
that he has a 'severe impairment,' (3) that the impairment is not one [listed in
Appendix 1 of the regulations] that conclusively requires a determination of disability,
and (4) that the claimant is not capable of continuing in his prior type of work, the
Commissioner must find him disabled if (5) there is not another type of work the
claimant can do." The claimant bears the burden of proof on the first four steps, while
the Social Security Administration bears the burden on the last step.
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311
F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal

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citations omitted).
On May 13, 2011, using the five-step evaluation process, the ALJ issued a decision
finding that plaintiff was not disabled within the meaning of the Social Security Act. At step one,
the ALJ found that plaintiff had not engaged in substantial gainful activity since June 8, 2009, the
alleged onset date of his disability. T.23. At step two, the ALJ found that plaintiff suffered from
the following severe impairments: “low back pain, depressive disorder, anxiety disorder, learning

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disorder, alcohol use and dependence,1 paranoid personality disorder, and borderline intellectual
functioning”. T.23.
At step three, the ALJ found that plaintiff “does not have an impairment or combination of

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There is no evidence that plaintiff has any substance abuse issues, but the error is
harmless since the ALJ does not mention of “alcohol use and dependence” anywhere else in the
decision.
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impairments that meets or medically equals one of the listed impairments in 20 CFR 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d), 404.1525 , 404.920(d), 416.925, and 416.926).” T.24. The
ALJ also considered plaintiff’s mental impairments at step three and found that he: “has mild
limitation in activities of daily living, moderate difficulty in maintaining social functioning, and
moderate difficulty in maintaining concentration, persistence, and pace, with one or two episodes
of decompensation of extended duration.” T.24.
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At step four, the ALJ found that plaintiff “has the residual functional capacity to perform
medium work as defined in 20 CFR 404.1567 and 416.967(c) provided that it is a low contact
setting and involves simple rather than complex instructions and tasks.” T.24.
At step five, the ALJ found that plaintiff could not perform his past relevant work, that he
is “a younger individual” as defined by the regulations, “has at least a high school education”, and

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concluded that considering these factors as well as his work experience, “there are jobs that exist
in significant numbers in the national economy that” he could perform. T.27. Because the ALJ
found that plaintiff could “perform all or substantially all of the exertional demands” of medium
work, and that plaintiff’s “additional limitations have no significant effect on the occupational
base of unskilled medium work,” he utilized the Medical-Vocational Guidelines, 20 C.F.R. Part
404, Subpart P, Appendix 2 (the “Grids”) “as a framework for decisionmaking” and concluded

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that plaintiff was not disabled. T.27-28.
V.

DISCUSSION
Plaintiff argues that: (1) the ALJ erred at step two by failing to include post traumatic

stress disorder as a severe disorder; (2) the ALJ failed to give proper weight to his treating
sources, Frances LoCascio, a psychiatric nurse practitioner, and Dr. Vacek, a primary care

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physician; (3) the ALJ’s reliance on the Grids was improper because his mental health
impairments and limitations in reading and writing significantly eroded his ability to perform the
full range of medium work; and (4) the ALJ erred when finding that plaintiff’s allegations were
not credible.
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does
not determine de novo whether plaintiff is disabled. Rather, the Court must examine the
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Administrative Transcript to ascertain whether the correct legal standards were applied, and
whether the decision is supported by substantial evidence. See Shaw v. Chater, 221 F.3d 126 (2d
Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). “Substantial evidence means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Curry
v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (citing Richardson v. Perales, 402 U.S. 389, 401

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(1971)).
A.

Mental Impairments

Plaintiff contends that the ALJ erred when evaluating his mental impairments. Plaintiff
argues that: (1) the ALJ omitted plaintiff’s PTSD diagnosis from his evaluation of the severity of
his mental impairments at step two; (2) the ALJ failed to apply the proper legal standards in
evaluating the impact of his mental impairments on his residual functional capacity; (3) that the
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ALJ erred when he declined to accord great weight to the opinion of the nurse practitioner who
treated his anxiety and depression; and (4) that the ALJ should have consulted a vocational expert
to determine whether there was work he could perform despite his nonexertional mental
impairments.
The record contains the following evidence regarding plaintiff’s mental impairments:

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treatment notes and a “Mental Residual Functional Capacity Assessment” from Frances
LoCascio, the psychiatric nurse practitioner who treated plaintiff for anxiety and depression at
The Family Counseling Center,2 T. 286, 408, 428, 430, psychiatric and intelligence evaluations by
consultative examiner Kerry Brand, Ph.D. T.294, and a “Psychiatric Review Technique” and
“Mental Residual Functional Capacity Assessment” by state agency reviewing psychologist, L.
Hoffman T.372, 393.
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In addition to the five-step analysis outlined above, the regulations governing evaluation
of the severity of mental impairments, 20 C.F.R. § 404.1520a, require “application of a ‘special
technique’ at the second and third steps of the five-step framework”. Kohler v. Astrue, 546 F.3d
260, 266 (2d Cir. 2008) (quoting Schmidt v. Astrue, 496 F.3d 833, 844 n.4 (7th Cir. 2007)). “This
technique ‘requires the [ALJ] to determine first whether the claimant has a medically

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determinable mental impairment.’” Petrie v. Astrue, 412 F. App’x 401, 408 (2d Cir. 2011)
(quoting Kholer, 546 F.3d at 265-66) (additional quotation marks omitted). The ALJ “must then
rate the degree of functional limitation resulting from the impairment(s)”, 20 C.F.R. §
404.1520a(b)(2), in four areas: (1) activities of daily living; (2) social functioning; (3)
concentration, persistence or pace; and (4) episodes of decompensation. Id. § 404.1520a(c)(3).
The ALJ must rate the first three areas on a scale of: “[n]one, mild, moderate, marked, and

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extreme,” and the fourth area on a scale of: “[n]one, one or two, three, four or more.” Id. at §
404.1520a(c)(4).
If the ALJ rates the degree of limitation in each of the first three areas as “mild” or better
and identifies no episodes of decompensation, the ALJ “will generally conclude” that the

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Plaintiff was also seen by Diane Palma, MS, at least once on January 12, 2010. T.231.
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plaintiff’s impairment is “not severe” and deny benefits. Id. at § 404.1520a(d)(1). If, however, the
plaintiff’s mental impairment is “severe”, the ALJ must “determine if it meets or is equivalent in
severity to a listed mental disorder.” Id. at § 404.1520a(d)(2). “If yes, then the [plaintiff] is
‘disabled.’” Petrie, 412 F. App’x at 408 (quoting 20 C.F.R. § 404.1520a(d)(2)). If it does not
meet or equal a listing, the ALJ “will then assess [the plaintiff’s] residual functional capacity.” 20
C.F.R. § 404.1520a(d)(3).
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The regulations require the ALJ to document the application of the special technique and
the ALJ’s written decision must therefore: “reflect application of the technique and . . . ‘include a
specific finding as to the degree of limitation in each of the [four] functional areas.’” Kohler, 546
F.3d at 266 (quoting 20 C.F.R. § 404.1520a(e)). “Generally, a medical or psychological
consultant will complete a standard document known as a ‘Psychiatric Review Technique

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Form’”. Petrie, 412 F. App’x at 408.
In this case, the ALJ relied on the psychiatric review technique completed by state agency
reviewing psychologist, L. Hoffman, who reviewed the medical records and concluded that
plaintiff had: a depressive disorder, borderline intellectual functioning, a learning disorder, an
anxiety disorder, post traumatic stress disorder (“PTSD”), social anxiety disorder, and dependent
personality disorder. T.372-81. Hoffman found that these mental impairments caused a mild

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restriction of activities of daily living, moderate difficulties in maintaining social functioning,
concentration, persistence or pace and one or two episodes of deterioration. T.382-83. The ALJ
adopted Hoffman’s findings regarding the four functional areas but did not include plaintiff’s
diagnosis of PTSD when recounting plaintiff’s diagnoses.
Plaintiff was diagnosed with PTSD by LoCascio, the psychiatric nurse practitioner who

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treated him from March 2010 to March 2011. T.286, 444. Hoffman noted the PTSD diagnosis,
along with the diagnoses “anxiety disorder N[ot] O[therwise] S[pecified]” and “social anxiety
disorder”, in the section entitled “Anxiety Related Disorders”. T. 377. In his decision, the ALJ did
not identify the individual diagnoses but referred to them generally as an “anxiety disorder”. T.23.
Since the ALJ found, at step two, that plaintiff’s anxiety disorder was severe, he, as discussed
below, considered the impact of this disorder on plaintiff’s RFC. Therefore, the ALJ’s omission
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of the specific diagnosis was harmless. See, e.g., Malloy v. Astrue, No. 3:10cv190, 2010 WL
7865083, at *16 (D. Conn. Nov. 17, 2010) (finding no error in the ALJ’s failure to “recognize the
correct diagnosis of Plaintiff’s mental or emotional illness” and characterization of it as
“depression” explaining that there was “nothing in the regulations that limits the ALJ's
characterization of mental impairments to specific DSM–IV diagnoses” and that the

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characterization did not affect the ALJ’s determination “as to the functional limitations cause by
[the plaintiff’s] mental impairment.”).
If the ALJ concludes, at steps two and three, that a plaintiff’s mental impairments are
severe, the ALJ must consider the impact of those impairments on a plaintiff’s residual functional
capacity (“RFC”).3 This requires the ALJ to itemize and assess whether the plaintiff has

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Residual functional capacity is:
"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, Policy Interpretation Ruling
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limitations with respect to various functions contained in the regulations including the ability to:
understand, remember and carry out instructions; use judgment in making work-related decisions;
respond appropriately to supervision, co-workers and work pressures in a work setting; and deal
with changes in a routine work setting. SSR 96–8p, 1996 WL 374184 (S.S.A.); 20 C.F.R. §
416.920a; see also White v. Comm’r of Soc. Sec., 7:05-cv-1013, 2008 WL 820177, at *8
(N.D.N.Y. Mar. 26, 2008); see also Pabon v. Barnhart, 273 F.Supp.2d 506, 516 (S.D.N.Y. 2003).
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In this case, after weighing the evidence, the ALJ concluded that plaintiff’s mental
impairments limited the work he could perform to “simple” work in “a low contact setting”.
T.27. In reaching this conclusion, the ALJ gave “great weight” to Hoffman’s opinion but did not
specify the weight, if any, he gave Dr. Brand’s opinion and declined “to grant great weight” to
LoCascio’s opinion because as a nurse practitioner, she was not an “accepted medical source” and

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her opinion was inconsistent with the other evidence. T.26. Plaintiff argues that the ALJ should
have accorded controlling weight to LoCascio’s opinion and that the mental RFC determination is
not supported by substantial evidence.
The ALJ briefly referred to LoCascio in his decision, but did not discuss her treatment
notes or opinion, stating only that he: “decline[d] to grant great weight to [her] opinion” because
she was “not an accepted medical source” and her “opinion regarding the nature and severity of

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the claimant’s mental limitations is directly contradicted by the accepted medical sources of

Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims ("SSR 96-8p"), 1996
WL 374184, at *2 (S.S.A. July 2, 1996)). In making a residual functional capacity determination,
the ALJ must consider a claimant's physical abilities, mental abilities, symptomology, including
pain and other limitations which could interfere with work activities on a regular and continuing
basis. 20 C.F.R. § 404.1545(a).
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record”. T.26. While the ALJ was not required to accord LoCascio’s opinion the controlling
weight generally accorded that of a treating physician because she was not an “acceptable
medical source” as defined by the regulations. Genier v. Astrue, 298 F. App’x 105, 108 (2d Cir.
2008) (“Acceptable medical sources” are . . . defined (by regulation) as licensed physicians,
psychologists, optometrists, podiatrists, and qualified speech-language pathologists) (citing 20
C.F.R. § 416.913(a)), he should have given LoCascio’s opinion some consideration as she was
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the only medical professional to treat plaintiff’s mental condition during the relevant time period.
See Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir.1983) (stating opinion of nurse
practitioner who treated claimant on regular basis entitled to “some extra consideration”).
Moreover, the record does not support the ALJ’s conclusory finding that LoCascio’s opinion was
contradicted by the acceptable medical sources: Dr. Brand and L. Hoffman, or the ALJ’s finding

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that, at most, plaintiff’s mental impairments limited him to “simple” work in a “low contact
setting”.
From March 2010 to March 2011, Locascio treated plaintiff for anxiety and depression.
LoCascio prescribed various medications for his depression and anxiety and also to help him
sleep. In August 2010, LoCascio completed a mental residual functional capacity assessment and
opined that plaintiff was “moderately limited” in his ability to: “remember locations and work-

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like procedures”; “make simple work-related decisions”; “ask simple questions”; and to
understand, remember and carry out “very short and simple instructions” . T.408, 409. LoCascio
further opined that plaintiff was “markedly limited” in his ability to, among other things:
understand, remember and carry out “detailed instructions”; “maintain attention and
concentration”; “perform activities within a schedule”; “work in coordination with or proximity

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to others without being distracted by them”; “perform at a consistent pace”; “complete a normal
workday and workweek without psychologically based symptoms”; “interact with the public”;
“accept instructions and respond appropriately to criticism from supervisors”; get along with
coworkers; and “respond appropriately to changes in the work setting”. T.409.
When consultative psychologist, Kerry Brand, Ph.D, performed a mental status
examination, he found that plaintiff was cooperative, his manner of relating was “adequate”, his
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hygiene and grooming were “good”, his eye contact “was appropriate”, and his thought processes
were “[c]oherent and goal directed with no evidence of hallucinations, delusions, or paranoia”. T.
296. Dr. Brand found plaintiff’s attention and concentration to be “[m]ildly impaired” and his
“recent and remote memory skills” to be “[m]ildly impaired”. As a result, Dr. Brand opined that
plaintiff “may have moderate difficulty”: “maintaining attention and concentration”, “maintaining

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a regular schedule”, “learning new tasks and performing complex tasks independently”, “making
appropriate decisions, relating adequately with others, and dealing appropriately with stress.”
T.297.
Dr. Brand also conducted an “Intelligence Evaluation”. Plaintiff’s test4 results indicated
that plaintiff’s reading and decoding skills were at the fifth grade level and that he had a “full
scale IQ of 72". T.301. Dr. Brand noted that “[o]verall”, plaintiff was “functioning in the

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borderline range of intelligence.” T.301.
Hoffman, the psychologist who reviewed plaintiff’s records at the Commissioner’s request
opined that plaintiff was “Moderately Limited” in his ability to: understand, remember and carry

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Dr. Brand administered the Wide Range Achievement Test, Third Edition and the
Wechsler Adult Intelligence Scale, Fourth Edition. T.301
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out detailed instructions; “maintain attention and concentration for extended periods”; “make
simple work-related decisions”; “complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods”; “to accept instructions and respond
appropriately to criticism from supervisors”; and “get along with coworkers without distracting
them or exhibiting behavioral extremes” T. 393-94. Hoffman recommended that: “Given reports
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and history that the claimant may have difficulties relating with others and/or adapting to
changes, a low contact setting may be beneficial.” T.395.
Notwithstanding the evidence that plaintiff had at least moderate limitations with regard to
handling detailed instructions, maintaining attention and concentration, making simple decisions,
completing a normal workday without interruptions, responding to input from supervisors, and

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dealing with stress in the workplace, the ALJ found that plaintiff’s mental impairments impaired
his RFC only to the extent that he required a “low contact setting” and work that “involves simple
rather than complex instructions and tasks.” T. 24. The ALJ did not account for plaintiff’s
“borderline intellectual functioning”, even though he found at step two that plaintiff’s “learning
disorder” was severe. T.23. Thus, the ALJ’s RFC determination with respect to plaintiff’s mental
limitations is not supported by substantial evidence; it contains conclusory findings regarding his

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limitations and fails to acknowledge the other areas of limitation identified by the treating,
examining and consultative sources. See Martone v. Apfel, 70 F.Supp.2d 145, 150
(N.D.N.Y.1999) (“In assessing RFC, the ALJ's findings must specify the functions plaintiff is
capable of performing; conclusory statements regarding plaintiff's capacities are not sufficient.”)
(citations omitted)).

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B.

Treating Physician

Plaintiff argues that the ALJ should have given controlling weight to the opinion of his
treating physician, James Vacek, M.D., whose “Physical Capacity Evaluation” indicates that
plaintiff could sit for two hours and stand for one hour in an eight-hour workday and could not lift
more than ten pounds. T.410. In determining that plaintiff had the RFC to perform medium work,
the ALJ did not give any weight to Dr. Vacek’s opinion, finding that it was “merely a recounting
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of the claimant’s own allegations”, T.25, and instead relied of the opinion of Amelita Balagtas,
M.D., who performed a consultative orthopedic examination. T.25, 291. “Medium work involves
lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up
to 25 pounds.” 20 C.F.R. § 404.1567(c).
According to the treating physician rule, "the opinion of a claimant's treating physician as

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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 record." Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008) (citations and quotation marks omitted). "Although the treating physician
rule generally requires deference to the medical opinion of a claimant's treating physician, ... the
opinion of the treating physician is not afforded controlling weight where ... the treating physician

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issued opinions that are not consistent with other substantial evidence in the record[.]" Halloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). Where the ALJ finds that a treating physician's
opinion is not deserving of controlling weight, the ALJ may still give it "extra weight" after
considering specific factors. See C.F.R. § 404.1527(d)(l)-(6); Shaw, 221 F.3d at134.
When the ALJ does not give the treating source’s opinion controlling weight, the

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Regulations require that the ALJ apply the following factors in determining the weight to give the
opinion:
(1) the length of the treatment relationship and the frequency of examination; (2) the
nature and extent of the treatment relationship; (3) the evidence that supports the
treating physician's report; (4) how consistent the treating physician's opinion is with
the record as a whole; (5) the specialization of the physician in contrast to the
condition being treated; and (6) any other factors which may be significant.
Abreu v. Astrue, No. 11 Civ. 3719, 2012 WL 4714892, at *4 (S.D.N.Y. Sept. 27, 2012); see 20
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C.F.R. § 404.1527(d)(2).
In discussing the medical evidence, the ALJ stated that he did “not grant any significant
weight to the October 2010 physical capacities evaluation of record as it is not a medical opinion
but merely a recounting of the claimant’s own allegations.” T.25 (internal citation omitted).
Indeed, throughout his physical capacity evaluation, Dr. Vacek noted that the exertional

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limitations were “per pt”. T.410. The ALJ was not required to give the limitations identified in
Dr. Vacek’s evaluation because they were based on plaintiff’s subjective complaints of pain, not
“medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2); see Baladi v. Barnhart, 33 F.App’x 562, 564 (2d Cir. 2002) (“The
treating physician's opinions were based upon plaintiff's subjective complaints of pain and
unremarkable objective tests, and therefore the ALJ was not required to give that opinion

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controlling weight, as it was not well-supported by medically acceptable clinical and laboratory
diagnostic techniques.”) (internal quotation marks omitted)). Further, although Dr. Vacek was
plaintiff’s treating physician, only two of his progress notes refer to plaintiff’s back pain.5 T.223.

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Plaintiff saw a number of providers at The Nathan Littauer Primary Care Center, several
of whom documented his back pain.
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When plaintiff saw Dr. Vacek on July 26, 2007, he found mild tenderness in plaintiff’s lower
back but that his range of motion was “Ok” and the straight leg raising test was negative. T. 223.
When plaintiff saw Dr. Vacek on August 31, 2007, he noted that plaintiff had a “back ache”, and
ordered an x-ray. T.266. Thus, the ALJ did not err when he declined to accord controlling weight
to Dr. Vacek’s opinion. In view of the obvious problem with the only physical capacity
evaluation in the record from a treating physician, however, the ALJ should have re-contacted Dr.
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Vacek to ask him to provide his opinion regarding plaintiff’s physical limitations. An ALJ “has an
obligation to develop the record ... regardless of whether the claimant is represented by counsel .”
Shaw, 221 F.3d at 131. Here, there is no indication that the ALJ re-contacted Dr. Vacek to request
a medical assessment supported by medical findings regarding plaintiff’s RFC. Cf. Baladi, 33 F.
App’x at 564 (finding no error in ALJ’s decision to discount the opinion of the plaintiff’s treating

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physician, which was based on the plaintiff’s subjective complaints, but noting that the ALJ
attempted to remedy this issue and “fulfilled his obligation to fully develop the administrative
record by requesting additional reports from the treating physician”). The absence of evidence
regarding plaintiff’s work-related capabilities from his treating physician, however, constitutes a
gap in the administrative record and requires this Court to remand this matter for further
proceedings. See Toribio v. Astrue, 06–CV–6532, 2009 WL 2366766, at *8 (E.D.N.Y. July 31,

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2009) (“Gaps in the administrative record warrant remand for further development of the
record.”).
C.

Consultative Examiner

Plaintiff claims that the ALJ erred in crediting Dr. Balagtas’s opinion because Dr.
Balagtas did not have his MRI results, which indicated herniated discs, when she issued her

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opinion. T.291. An ALJ is entitled to rely upon the opinions of the state agency's medical and
psychological consultants, since they are qualified experts in the field of Social Security
disability. See 20 C.F.R. §§ 404.1512(b)(6), 404.1513(c), 404.1527(f)(2), 416.912(b)(6),
416.913(c), and 416.927(f)(2).
Plaintiff told Dr. Balagtas that he has had low back pain since the age of thirteen or
fourteen, and described it as a sharp, nonradiating pain that is aggravated by “prolonged walking,
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sitting or standing”. T.291. Dr. Balagtas noted that an x-ray report of “the lumbar spine was read
as no obvious acute focal abnormality seen by radiography.” T.291. Dr. Balagtas found that
plaintiff “appeared to be in no acute distress”, had a normal gait and station, could “walk on heels
and toes without difficulty”, and could “do a deep squat”. T.292. Dr. Balagtas found plaintiff had
full “flexion, extension, lateral flexion bilaterally, and rotary movements bilaterally.” T.292.

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There was no spinal, paraspinal or sciatic notch tenderness, no spasm and no “trigger points”.
T.292. The straight leg raising test was normal bilaterally. T.292. Additionally, Dr. Balagtas
found that plaintiff had full range of motion in his hips, knees and ankles bilaterally and that his
strength was “5/5 in proximal and distal muscles bilaterally.” T.292. Dr. Balagtas diagnosed
“Low back pain, by history” and stated: “Based on today’s orthopedic evaluation, there is no
impairment on this claimant.” T.292-93.

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The MRI report, dated March 29, 2010, indicated disc herniations at L4-5 and L5-S1. The
MRI results do not necessarily undermine Dr. Balagtas’s opinion because there was nothing
during the physical examination that suggested any degree of limitation.6 The MRI, however,

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Dr. Balagtas reported that plaintiff “appeared to be in no acute distress”, his gait was
normal, he had “[f]ull flexion, extension, lateral flexion bilaterally, and rotary movements
bilaterally” of the cervical, thoracic and lumbar spine, fill range of motion of hips, knees and
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provided objective medical evidence of plaintiff’s back condition. Since the Court is remanding
this matter to enable the ALJ to re-contact plaintiff’s treating physician, the ALJ may wish to
obtain a second consultative examination. Id. § 404.1512(e)(1) (the ALJ is authorized to direct a
claimant “to attend one or more consultative examinations at our expense”).
D.

Credibility

Plaintiff claims that the ALJ’s explanation for his decision to discount plaintiff’s
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complaints of a disabling condition was inadequate. When the evidence demonstrates a medically
determinable impairment, “subjective pain may serve as the basis for establishing disability, even
if such pain is unaccompanied by positive clinical findings or other ‘objective’ medical
evidence[.]” Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). “Objective medical evidence is
evidence obtained from the application of medically acceptable clinical and laboratory diagnostic

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techniques, such as evidence of reduced joint motion, muscle spasm, sensory deficit or motor
disruption.” Casino-Ortiz v. Astrue, No. 06 Civ. 0155, 2007 WL 2745704, at *11 n.21 (S.D.N.Y.
Sept. 21, 2007) (citing 20 C.F.R. § 404.1529(c)(2)).
If the plaintiff's testimony concerning the intensity, persistence or functional limitations
associated with his pain is not fully supported by clinical evidence, the ALJ must consider
additional factors in order to assess that testimony, including: 1) daily activities; 2) location,

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duration, frequency and intensity of any symptoms; 3) precipitating and aggravating factors; 4)
type, dosage, effectiveness and side effects of any medications taken; 5) other treatment received;
and 6) other measures taken to relieve symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vi),
416.929(c)(3)(i)-(vi). The issue is not whether the clinical and objective findings are consistent

ankles and his strength was “5/5 in proximal, and distal muscles bilaterally”. T.292.
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with an inability to perform all substantial activity, but whether plaintiff's statements about the
intensity, persistence, or functionally limiting effects of his back pain are consistent with the
objective medical and other evidence. See SSR 96-7p, 1996 WL 374186, at *2; see also Cloutier
v. Apfel, 70 F.Supp.2d 271, 278 (W.D.N.Y. 1999) (holding that although the ALJ's decision
contained a discussion of the medical evidence and a summary of the plaintiff's subjective
complaints, the decision did not provide a sufficient analysis of the evidence to support the lack
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of credibility finding).
When rejecting subjective complaints of pain, an ALJ must do so “explicitly and with
sufficient specificity to enable the Court to decide whether there are legitimate reasons for the
ALJ's disbelief [.]” Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y. 1987). If the
Commissioner's findings are supported by substantial evidence, “the court must uphold the ALJ's

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decision to discount a claimant's subjective complaints of pain.” Aponte v. Sec'y, Dep't of Health
and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984). A reviewing court's role is merely to
determine whether substantial evidence supports the ALJ's decision to discount a claimant's
subjective complaints. Id. (quotations and other citations omitted).
Plaintiff’s principal objection is to the following portion of the ALJ’s decision, which, he
asserts, contains “boilerplate” language and shows the ALJ failed to engage in the required

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analysis:
After careful consideration of the evidence, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statement’s concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they
are inconsistent with the above residual functional capacity assessment.

The ALJ, however, did not end the analysis there, he also noted the medical evidence,
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including the x-ray results, “mild7 findings on MRI” and Dr. Balagtas’ report, that plaintiff did
not rely on pain medication, T.25, and “activities of daily living”, as reported to Dr. Brand, the
consultative psychologist, including the ability to dress, bathe and groom himself, cook and
prepare food, do general cleaning, do laundry, go grocery shopping, drive, get along well with
friends, and use his computer” were “inconsistent with a degree of limitation.” Thus, the ALJ
considered the factors outlined in 20 C.F.R. §§ 404.1529(c)(3)(i)-(vi) and 416.929(c) (3)(i)-(vi),
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and adequately explained why he did not find plaintiff’s complaints of disabling pain entirely
credible.
E.

Medical Vocational Guidelines

At the fifth step of the sequential evaluation of disability, the Commissioner bears the
responsibility of proving that plaintiff is capable of performing other jobs existing in significant
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numbers in the national economy in light of plaintiff’s residual functional capacity, age,
education, and past relevant work. 20 C.F.R. §§ 416.920, 416.960. Ordinarily, the Commissioner
meets this burden at this step “by resorting to the applicable medical vocational guidelines (the
grids), 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1986).” Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.
1986). Sole reliance on the grids is inappropriate where the guidelines fail to describe the full
extent of a claimant's limitations. Id. at 606. For example, use of the grids as the exclusive

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framework for making a disability determination may be precluded where a plaintiff’s physical
limitations are combined with non-exertional impairments which further limit the range of work

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Plaintiff notes the ALJ’s reference to the MRI results a “mild” and asserts that “[n]o
medical professional characterized Mr. Gallup’s multiple disc herniations as mild.” Dkt. No. 14.
The MRI report indicates two disc herniations as well as “[m]ild facet hypertrophy”. T.414. The
ALJ’s statement is therefore not unfounded.
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he can perform. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996). In these circumstances, the
Commissioner must “introduce the testimony of a vocational expert (or other similar evidence)
that jobs exist in the economy which claimant can obtain and perform.” Bapp, 802 F.2d at 603;
see also Melchior v. Apfel, 15 F. Supp.2d 215, 222 (N.D.N.Y. 1998) (stating “where
nonexertional limitations significantly diminish the ability to perform a full range of work, it is
appropriate that the ALJ present testimony from a vocational expert”).
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Here, the ALJ found that plaintiff was unable to perform past relevant work, was a
younger individual, “has at least a high school education”, could perform the full range of
medium work, and that his “additional limitations have no significant effect on the occupational
base of unskilled medium work.” T.27-28. The ALJ therefore found, based on MedicalVocational Rule 203.29 that a finding of “not disabled” was “appropriate under the framework of

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this rule.” T.28.
As an initial matter, it is undisputed that the ALJ applied the wrong rule; plaintiff was not
a high school graduate. This error was, however, harmless because Medical-Vocational Rule
203.26 accounts for a limited education and still directs a finding of not disabled. 20 C.F.R. Pt.
404, Subpt. P, App.2.
Plaintiff further argues that his psychiatric impairments, borderline intellectual

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functioning and limitations in reading and writing required the ALJ to obtain the testimony of a
vocational expert and precluded him from relying on the Grids. The ALJ found that plaintiff
could perform medium work but that any work setting must be “low contact” and that the work
must involve “simple rather than complex instructions and tasks.” T.24. Vocational expert
testimony is required only if a claimant's “nonexertional limitations ... significantly limit the

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range of work permitted by his exertional limitations.” Zabala v. Astrue, 595 F.3d 402, 410 (2d
Cir. 2010) (internal quotation marks omitted). A nonexertional impairment is “significantly
limit[ing]” when it “so narrows a claimant's possible range of work as to deprive him of a
meaningful employment opportunity.” Id. at 410–11. Here, the ALJ determined that the additional
limitations “have no significant effect on the occupational base of unskilled medium work”. Thus,
the ALJ did not err in relying on the Grids to determine that jobs existed in the economy that
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plaintiff could perform. “Medium work involves lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c).
VI.

REMEDY
Sentence four of 42 U.S.C. § 405(g) proves that “[t]he court shall have the power to enter,

upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
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decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” The Second Circuit has stated that “where the administrative record contains gaps,
remand to the Commissioner for further development of the evidence is appropriate.” Butts v.
Barnhart, 388 F.3d 377, 385 (2d Cir. 2004) (citing Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir.
1999)). “On the other hand, ‘where this Court has had no apparent basis to conclude that a more
complete record might support the Commissioner’s decision, we have opted simply to remand for

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a calculation of benefits.’” Id. at 385-86 (quoting Rosa, 168 F.3d at 83).
Here, there is a gap in the administrative record: the absence of an opinion from plaintiff’s
treating physician. Additionally, given the extent of plaintiff’s nonexertional mental impairments,
which have never been considered by a vocational expert, the Court concludes that remand for
further development of the record is required.

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VII.

CONCLUSION
For these reasons, it is hereby
ORDERED that the Commissioner’s motion for judgment on the pleadings (Dkt. No. 13)

is DENIED; and it is further
ORDERED that plaintiff’s motion for judgment on the pleadings (Dkt. No. 11) is
GRANTED; and it is further
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ORDERED that the Commissioner’s decision is reversed and this matter is remanded for
further proceedings consistent with this Memorandum-Decision and Order; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment for the plaintiff and
Close this Case.
IT IS SO ORDERED.

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Date: June 3, 2014

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