Maine v. Colvin

Filing 13

DECISION AND ORDER granting # 10 Plaintiff's motion for judgment on the pleadings; and denying # 11 Defendant's motion for judgment on the pleadings. This matter is remanded to Defendant, pursuant to 42 U.S.C. 405(g), for further proceedings consistent with this Decision and Order. Signed by Chief Judge Glenn T. Suddaby on 2/7/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
CARLENE MAINE,
Plaintiff,
v.

6:15-CV-1093
(GTS)

CAROLYN W. COLVIN
Acting Commissioner of Social Security,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
Counsel for Plaintiff
300 S. State Street, Suite 420
Syracuse, NY 13202

HOWARD D. OLINSKY, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL
– REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

EMILY M. FISHMAN, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Carlene Maine,
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions for judgment on
the pleadings. (Dkt. Nos. 10, 11.) For the reasons set forth below, Plaintiff’s motion for
judgment on the pleadings is granted and Defendant’s motion for judgment on the pleadings is
denied.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff has a tenth grade education with special education classes, and has past work as
a cleaner, a housekeeper, a packer, and a temporary worker. Generally, Plaintiff’s alleged
disability consists of hydrocephalus,1 learning impairment, and migraine headaches.
B.

Procedural History

On January 31, 2011, Plaintiff applied for Supplemental Security Income, alleging
disability beginning July 31, 2008. (T. 25.)2 Plaintiff’s application was initially denied on May
2, 2011, after which she timely requested a hearing before an Administrative Law Judge
(“ALJ”). On January 9, 2012, Plaintiff appeared in a video hearing before the ALJ, Patrick
Kilgannon. (T. 37-61.) On March 29, 2012, the ALJ issued a written decision finding Plaintiff
not disabled under the Social Security Act. (T. 25.) On April 29, 2013, the Appeals Council
vacated the ALJ’s decision and remanded the matter for further proceedings. (Id.) In its remand
order, the Appeals Council directed the ALJ to: (1) adhere to proffer procedures in accordance
with HALLEX I-2-7-30, (2) update the evidence regarding Plaintiff’s medical conditions, (3)
further evaluate Plaintiff’s mental impairments in accordance with the special technique, (4) give

1

The primary characteristic of hydrocephalus is excessive accumulation of cerebrospinal fluid in the
brain, resulting in an abnormal widening of the spaces in the brain called ventricles. MAYO CLINIC, http://www.
mayoclinic.org/diseases-conditions/hydrocephalus/basics/definition/con-20030706 (last visited Jan. 26, 2017). The
excess fluid increases the size of the ventricles and puts pressure on the brain that can damage brain tissues and
cause “a large spectrum of impairments in brain function.” Id. Common signs and symptoms of hydrocephalus in
young and middle-aged adults (less than age 60) include headaches, difficulty remaining awake, loss of bladder
control, impaired vision, and decline in memory, concentration, and other thinking skills. MAYO CLINIC,
http://www.mayo
clinic.org/diseases-conditions/hydrocephalus/basics/symptoms/con-20030706 (last visited Jan. 26, 2017).
2

Page citations refer to the page numbers used on CM/ECF rather than the page numbers contained
in the parties’ respective motion papers.

2

further consideration to Plaintiff’s maximum residual functional capacity (“RFC”), if necessary,
and (5) obtain supplemental evidence from a vocational expert to clarify the effect of the
assessed limitations on Plaintiff’s occupational base. (T. 25, 113-14.)
On September 17, 2013, Plaintiff appeared in a second video hearing before ALJ Robert
Gale. (T. 25, 62-83.) On March 6, 2014, the ALJ issued a second written decision finding
Plaintiff not disabled under the Social Security Act. (T. 17-36.) On July 10, 2015, the Appeals
Council denied Plaintiff’s request for review. (T. 1-6.) Thereafter, Plaintiff timely sought
judicial review in this Court.
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 27-35.) First, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since January 31, 2011, the application date. (T. 27.) Second, the ALJ found
that Plaintiff’s hydrocephalus and learning disability are severe impairments, but that Plaintiff’s
migraine headaches, otitis media, breast legions/cysts, thyromegaly, hyperlipidemia, obesity,
tobacco use, sinusitis, and folliculitis are not severe impairments. (T. 28.) Third, the ALJ found
that Plaintiff’s severe impairments, alone or in combination, do not meet or medically equal one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1 (the “Listings”). (T. 28-30.)
The ALJ considered Listings 12.02 and 12.05. (Id.)
Fourth, the ALJ found that Plaintiff has the RFC
to perform medium work as defined in 20 CFR 416.967(c), because
the claimant is able to lift and/or carry fifty pounds occasionally and
twenty pounds frequently, stand and/or walk for about six hours in an
eight-hour workday, and sit for about six hours in an eight-hour
workday. The claimant is unlimited in her ability to use her
extremities to push and pull, and the claimant is able to occasionally
climb, balance, stoop, kneel, crouch, and crawl. The claimant has no
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visual, communicative, or environmental limitations. Mentally, the
claimant is able to perform simple job tasks, interact appropriately
with co-workers and supervisors, and adapt to changes in a routine
work setting.
(T. 30-33.) Fifth, the ALJ found that Plaintiff has no past relevant work. (T. 33.) Sixth, and
finally, the ALJ found that there are jobs existing in significant numbers in the national economy
that Plaintiff can perform. (T. 34.)
D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff asserts five arguments in support of her motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ failed to comply with the Appeals Council’s
remand order to update the record evidence regarding Plaintiff’s medical conditions. (Dkt. No.
10, at 3, 11-12 [Pl.’s Mem. of Law].) Second, Plaintiff argues that the ALJ erred in failing to
find Plaintiff’s migraines severe at step two of the sequential evaluation. (Id. at 3, 12-14.)
Third, Plaintiff argues that the ALJ’s RFC determination is not supported by substantial
evidence. (Id. at 3, 14-18.) Within this argument, Plaintiff argues that the ALJ erred in
weighing the medical opinion evidence and failed to develop the record regarding Plaintiff’s
impairments. (Id.) Fourth, Plaintiff argues that the ALJ’s credibility determination is
unsupported by substantial evidence. (Id. at 3, 18-20.) Fifth, and finally, Plaintiff argues that the
ALJ’s step five determination is not supported by substantial evidence. (Id. at 3, 20-21.)
Generally, Defendant makes five arguments in support of her motion for judgment on the
pleadings. First, Defendant argues that substantial evidence supports the ALJ’s step two finding.
(Dkt. No. 11, at 7-11 [Def.’s Mem. of Law].) Second, Defendant argues that substantial
evidence supports the ALJ’s RFC determination and assessment of the opinion evidence. (Id. at
11-17.) Third, Defendant argues that the ALJ was not required to develop the record further.
4

(Id. at 17-21.) Fourth, Defendant argues that substantial evidence supports the ALJ’s credibility
finding. (Id. at 21-23.) Fifth, and finally, Defendant argues that substantial evidence supports
the ALJ’s step five determination. (Id. at 24-25.)
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
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.”); accord, 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, 91 S. Ct. 1420, 1427 (1971).
Where evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982).

5

“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining 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).
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. § 416.920. The Supreme
Court has recognized the validity of this sequential evaluation process. Bowen v. Yuckert, 482
U.S. 137, 140-42, 107 S. Ct. 2287 (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
6

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 the 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 non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III.

ANALYSIS
For the ease of analysis, Plaintiff’s arguments will be reorganized and consolidated

below.
A.

Whether the ALJ’s Step Two Determination Was Supported by Substantial
Evidence

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 10, at 14-18 [Pl.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
According to Social Security Regulations, “[a]n impairment or combination of
impairments is not severe if it does not significantly limit a [claimant’s] physical or mental
ability to do basic work activities.” 20 C.F.R. § 416.921(a). The regulations define “basic work
activities” as the “abilities and aptitudes necessary to do most jobs,” with examples including the
following: (1) physical functions such as walking, standing, lifting, pushing, pulling, carrying or
handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) using judgment; (5) responding appropriately to
supervision, co-workers and usual work situations; and (6) dealing with changes in a routine
work setting. 20 C.F.R. § 416.921(b). Accordingly, the severity of an impairment is determined
7

by the limitations imposed by the impairment, and not merely by diagnosis of the impairment.
Ellis v. Comm’r, 11-CV-1205, 2012 WL 5464632, at *4 (N.D.N.Y. Sept. 7, 2012) (citing
Coleman v. Shalala, 895 F. Supp 50, 53 [S.D.N.Y. 1995]); see also McConnell v. Astrue, 03-CV0521, 2008 WL 833968 (N.D.N.Y. Mar. 27, 2008).
“The second step requirement under the prescribed disability analysis is truly de minimis,
and intended only to screen out the truly weakest of cases.” Davis v. Colvin, 11-CV-0658, 2013
WL 1183000, at *8 (N.D.N.Y. Feb. 27, 2013) (citing Dixon v. Shalala, 54 F.3d 1019, 1030 [2d
Cir. 1995]). When an ALJ finds that one or more of a plaintiff’s impairments are severe, an error
in the severity analysis at step two may be harmless because the ALJ continued with the fivestep analysis and did not deny the claim based on lack of a severe impairment alone. Ellis, 2012
WL 5464632, at *5; Tyron v. Astrue, 10-CV-0537, 2012 WL 398952, at *3 (N.D.N.Y. Feb. 7,
2012); Kemp v. Comm’r, 10-CV-1244, 2011 WL 3876526, at *8 (N.D.N.Y. Aug. 11, 2011).
When “an ALJ has omitted an impairment from step two of the sequential analysis, other
courts have declined to remand if the ALJ clearly considered the effects of the impairment in the
remainder of his analysis.” Chavis v. Astrue, 07-CV-0018, 2010 WL 624039, at *12 (N.D.N.Y.
Feb. 18, 2010); see also 20 C.F.R. § 416.923 (stating that the ALJ is required to consider the
“combined effect of all of [a plaintiff’s] impairments without regard to whether any such
impairment, if considered separately would be of sufficient severity”).
Here, the ALJ found that Plaintiff’s migraine headaches were not a severe impairment
under the regulations. (T. 28.) The ALJ reasoned that there was not enough documentation to
show that Plaintiff’s migraine headaches rise to the level of a severe impairment. (Id.) Rather,
the ALJ noted that, in July 2011, treating neurosurgeon Satish Krishnamurphy, M.D., stated that

8

Plaintiff’s headaches were almost gone after her brain surgery in February 2011.3 (Id.)
Additionally, the ALJ stated that no treating source has indicated that Plaintiff’s migraines
impose limits on Plaintiff’s ability to engage in basic work activities. (Id.)
Plaintiff argues that the ALJ’s analysis ignores the proper severity standard, which does
not require an opinion from a treating source to establish that a plaintiff’s impairment is severe.
(Dkt. No. 10, at 13-14 [Pl.’s Mem. of Law].) Plaintiff’s point is well taken. Moreover, in April
2013, more than two years after Plaintiff’s brain surgery, treating physician Lev Goldiner, M.D.,
noted that Plaintiff reported that she was continuing to experience headaches with nausea,
vomiting, photophobia, and decreased vision. (T. 517.)
For the reasons discussed below in Point III.B.ii. of this Decision and Order, this matter
is being remanded for the ALJ to develop the record and reevaluate the physical RFC
determination. Upon remand, the ALJ should also reevaluate the severity of Plaintiff’s
migraines based on a fully developed record.
B.

Whether the ALJ’s RFC Determination is Supported by Substantial
Evidence

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 10, at 14-18 [Pl.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
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.
3

On February 28, 2011, Plaintiff had an endoscopic third ventriculostomy for her hydrocephalus.

(T. 464-65.)

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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).
“In assessing a claimant’s RFC, the ALJ must consider all of the relevant medical and
other evidence in the case record to assess the claimant’s ability to meet the physical, mental,
sensory and other requirements of work.” Domm v. Colvin, 12-CV-6640, 2013 WL 4647643, at
*8 (W.D.N.Y. Aug. 29, 2013) (citing 20 C.F.R. § 404.1545[a][3]-[4]). The ALJ must consider
medical opinions and facts, physical and mental abilities, non-severe impairments, and the
plaintiff’s subjective evidence of symptoms. 20 C.F.R. § 416.945(b)-(e). The ALJ must consider
RFC assessments made by acceptable medical sources and may consider opinions from other
sources, such as therapists and social workers, to show how a claimant’s impairments may affect
his or her ability to work. 20 C.F.R. § 416.913(a), (c)-(d). Finally, an ALJ’s RFC determination
“must be set forth with sufficient specificity to enable [the Court] to decide whether the
determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d
Cir. 1984).
Under the “treating physician’s rule,” controlling weight is afforded to a plaintiff’s treating
physician’s opinion when (1) the opinion is well supported by medically acceptable clinical and
laboratory diagnostic techniques, and (2) the opinion is consistent with other substantial evidence
in the record, such as opinions of other medical experts. 20 C.F.R. § 416.927(c)(2); Halloran v.
Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004); Brogan-Dawley v. Astrue, 484 F. App’x 632, 633-34
10

(2d Cir. 2012). Regulations require an ALJ to set forth his or her reasons for the weight afforded
to a treating physician’s opinion. Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
When controlling weight is not afforded to the opinion of a treating physician, or when
assessing a medical opinion from another source, the ALJ should consider the following factors to
determine the proper weight to afford the opinion: (1) the source’s examination relationship and
treatment relationship with the plaintiff, including the length, nature, and extent of the treatment
relationship, if applicable, (2) the opinion’s supportability, (3) the opinion’s consistency with the
record as a whole, (4) the source’s specialization, if any, and (5) other factors, such as the source’s
knowledge of disability programs and familiarity with the case record. 20 C.F.R. § 416.927(c);
Halloran, 362 F.3d at 32 (listing regulatory factors).
For the ease of analysis, the Court will address the ALJ’s mental and physical RFC
determinations separately below.
i.

The ALJ’s Mental RFC Determination

The Court finds that the ALJ’s mental RFC is supported by substantial evidence, including
the mental opinions of (1) consultative psychological examiner Jeanne Shapiro, Ph.D., and (2)
State Agency Medical Consultant C. Butensky, Psychologist. (T. 404-07, 412-29.)
a.

Consultative Psychological Examiner Dr. Shapiro

Upon examination on April 21, 2011, Dr. Shapiro observed that Plaintiff’s attention and
concentration, and recent and remote memory skills were intact. (T. 406.) Dr. Shapiro estimated
that Plaintiff’s intellectual functioning was in the deficient range, but observed that her insight and
judgment were good. (Id.) Dr. Shapiro concluded that the results of her examination suggested
that Plaintiff had no significant psychiatric problems. (T. 407.) Dr. Shapiro indicated that
Plaintiff’s prognosis appeared to be good “given that she does not present with significant
11

psychiatric symptoms.” (Id.) Dr. Shapiro indicated that Plaintiff “may” need assistance
managing money due to her cognitive deficits, but also noted that Plaintiff reported that she is
able to manage money. (T. 406-07.) Finally, Dr. Shapiro assessed Plaintiff with no disorders
under Axis I, and a “rule-out” diagnosis of mild mental retardation under Axis II. (T. 407.)
In sum, Dr. Shapiro opined that Plaintiff appeared capable of understanding and following
simple instructions and directions; maintaining attention and concentration for tasks; performing
simple and some complex tasks with supervision and independently; and learning new tasks. (T.
406.) Dr. Shapiro further opined that Plaintiff appeared capable of regularly attending to a routine
and maintaining a schedule; making appropriate decisions; dealing with stress; and relating to and
interacting with others “moderately well.” (T. 406-07.)
b.

State Agency Medical Consultant Dr. Butensky

On May 2, 2011, Dr. Butensky reviewed Plaintiff’s medical records, and completed a
psychiatric review technique and mental RFC assessment. (T. 412-29.) Dr. Butensky noted that
Plaintiff participated in special education during high school and was classified as learning
disabled. (T. 424.) Dr. Butensky reviewed and summarized Plaintiff’s IQ scores, which ranged
from 72 to 102, with full-scale IQ scores ranging from 77 to 90. (T. 413.) Additionally, Dr.
Butensky noted that Plaintiff regularly completed all activities of daily living independently,
including cooking, doing general cleaning, doing laundry, shopping, driving and managing
money. (T. 413, 424.)
In sum, Dr. Butensky opined that despite Plaintiff’s “mild to moderate” intellectual
impairment, she retained the capacity to perform simple job tasks, sustain attention and
concentration for simple job tasks, and interact appropriately with coworkers and supervisors. (T.
424.) Dr. Butensky further opined that Plaintiff had “mild to moderate” limitation in her ability to
adapt to changes in a routine work setting. (T. 424, 426-27.)
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In assessing Plaintiff’s mental RFC, the ALJ afforded “significant weight” to the opinions
of Dr. Shapiro and Dr. Butensky due to their programmatic expertise and the relative consistency
of their opinions with the longitudinal medical evidence in the record. (T. 33.) Plaintiff
essentially argues that the ALJ’s mental RFC analysis did not appear to consider all of Dr.
Shapiro’s examination findings or adopt every potential limitation identified in her opinion.
However, the Court finds that the ALJ’s mental RFC determination was supported by substantial
evidence for the following reasons.
First, an ALJ’s “failure to cite specific evidence does not indicate that such evidence was
not considered.” Camille v. Colvin, , 15-CV-2087, 2016 WL 3391243, at *2 n.3 (2d Cir. 2016)
(citing Brault v. SSA, Comm’r, 683 F,3d 443, 448 [2d Cir. 2012]). Moreover, in formulating a
plaintiff’s RFC, an ALJ does not have to adhere to the entirety of one medical source’s opinion.
See Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013) (“Although the ALJ's conclusion may not
perfectly correspond with any of the opinions of medical sources cited in his decision, he was
entitled to weigh all of the evidence available to make an RFC finding that was consistent with the
record as a whole.”); Zongos v. Colvin, 12-CV-1007, 2014 WL 788791, at *9 (N.D.N.Y. Feb. 25,
2014) (finding that it was within the ALJ’s discretion to afford weight to a portion of a treating
physician’s opinion but not to another portion). Further, an ALJ is not required “explicitly to
reconcile every conflicting shred of medical testimony.” See Miles v. Harris, 645 F.2d 122, 124
(2d Cir. 1981) (finding that the ALJ was not required to reconcile two apparently inconsistent
medical opinions; it was sufficient that the ALJ noted that he carefully considered the exhibits
presented in evidence in reaching his decision).
Second, the ALJ properly applied the regulations in evaluating Dr. Shaprio and Dr.
Butensky’s opinions. (T. 32-33.) As discussed above, the ALJ considered Dr. Shapiro and Dr.

13

Butenski’s professional credentials and programmatic expertise, Dr. Shapiro’s examination of
Plaintiff, Dr. Butenski’s review of the medical evidence, and the consistency of their opinions
with the other medical evidence in the record pursuant to 20 C.F.R. § 416.927(c). (Id.) Where, as
here, an ALJ’s reasoning and adherence to the regulations are clear, the ALJ is not required to
discuss each and every factor of the regulation. Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir.
2013) (holding that, where a plaintiff challenged the ALJ’s failure to discuss each factor provided
for in 20 C.F.R. § 404.1527[c], “no such slavish recitation of each and every factor [was required]
where the ALJ's reasoning and adherence to the regulation [was] clear”).
Third, an ALJ is entitled to rely on opinions from both examining and non-examining
State agency medical consultants because these consultants are qualified experts in the field of
social security disability. 20 C.F.R. §§ 416.912(b)(1)(vi), 416.913(c), 416.927(e); see also Frey
ex rel. A.O. v. Astrue, 485 F. App’x 484, 487 (2d Cir. 2012) (summary order) (“The report of a
State agency medical consultant constitutes expert opinion evidence which can be given weight if
supported by medical evidence in the record.”); Little v. Colvin, 14-CV-0063, 2015 WL 1399586,
at *9 (N.D.N.Y. Mar. 26, 2015) (“State agency physicians are qualified as experts in the
evaluation of medical issues in disability claims. As such, their opinions may constitute
substantial evidence if they are consistent with the record as a whole.”) (internal quotation marks
omitted).
Finally, the Court turns to Plaintiff’s argument that the ALJ’s mental RFC was not
supported by substantial evidence because the ALJ failed to obtain an updated IQ test. The ALJ
noted that the record contains Plaintiff’s IQ scores ranging from 72 to 102 (from 1989, 1995, and

14

1997).4 (T. 30, 413.) The ALJ further noted that, while Plaintiff has a remote history of special
education and related services, there is no evidence that her learning disability precludes her
ability to engage in unskilled work. (T. 31-32.) Additionally, the ALJ noted that the record
contained no evidence of specialized psychiatric treatment or outpatient counseling, and no
mental opinion indicating that Plaintiff cannot engage in unskilled work. (T. 31.) Rather, the
opinions of Dr. Shaprio and Dr. Butensky discussed above indicated that Plaintiff could perform
simple work despite any assessed intellectual impairment. Notably, Dr. Butensky also reviewed
Plaintiff’s IQ scores, and assessed Plaintiff with “mild to moderate” intellectual impairment. (T.
413, 424.)
Accordingly, based on the evidence of record, the ALJ was not required to order an
additional IQ test. See Bushey v. Colvin, 552 F. App'x 97, 98 (2d Cir. 2014) (finding that the ALJ
was not required to order an IQ test to fully assess the plaintiff’s cognitive abilities because where
there are no obvious gaps in the administrative record regarding Plaintiff’s mental abilities, “the
ALJ is under no obligation to seek additional information”); Crawford v. Astrue,13-CV-6085,
2014 WL 4829544, at *24 (W.D.N.Y. Sept. 29, 2014) (finding that, where the record did not
suggest that the plaintiff suffered from “significant cognitive impairments,” the few references to
the plaintiff’s mental retardation in the record were insufficient to trigger the ALJ’s duty to order
an intelligence examination).
For the reasons set forth above, the Court finds that the ALJ’s mental RFC determination
is supported by substantial evidence. However, as this matter is being remanded for the ALJ to
develop the record more fully regarding Plaintiff’s physical capabilities, this should not be read to
4

In the Second Circuit, it is reasonable to presume, in the absence of evidence indicating otherwise,
that a claimant will have a fairly constant IQ throughout his or her lifetime. Talavera v. Astrue, 697 F.3d 145, 152
(2d Cir. 2012); Jackson v. Colvin, 14-CV-0756, 2015 WL 5005740, at *3 (N.D.N.Y. Aug. 20, 2015); Lyons v.
Colvin, 13-CV-0614, 2014 WL 4826789, at * 11 (N.D.NY. Sept. 29. 2014).

15

preclude the ALJ from reevaluating Plaintiff’s mental RFC in light of any new evidence obtained
upon remand.
ii.

The ALJ’s Physical RFC Determination

Next the Court turns to the ALJ’s physical RFC determination. The record contains the
following opinion of Plaintiff’s physical work-related abilities and limitations from consultative
physical examiner Kalyani Ganesh, M.D.
a.

Consultative Physical Examiner Dr. Ganesh

On April 21, 2011, Dr. Ganesh opined that Plaintiff had no gross physical limitation noted
in sitting, standing, walking, or the use of the upper extremities. (T. 410.) Dr. Ganesh opined that
Plaintiff “should avoid heavy lifting, carrying, pushing, and pulling.” (Id.) In assessing
Plaintiff’s physical RFC, the ALJ afforded “significant weight” to the opinion of Dr. Ganesh due
to her programmatic expertise and the relative consistency of her opinion with the longitudinal
medical evidence in the record. (T. 33.) However, the ALJ noted that Dr. Ganesh’s opinion that
Plaintiff should avoid heavy lifting, carrying, pushing, and pulling was rendered shortly after
Plaintiff underwent surgery, and Plaintiff demonstrated significant improvement after her surgery.
(Id.) However, as Plaintiff noted, Dr. Ganesh did not indicate that her opinion was temporary or
otherwise impacted by Plaintiff’s recent surgery.
Moreover the ALJ failed to cite, and the record does not contain, a medical opinion to
establish that Plaintiff could perform all of the exertional demands of the ALJ’s RFC
determination (including lifting/carrying 50 pounds occasionally and 25 pounds frequently, and
sitting, standing, and walking for six hours during an eight-hour workday). (T. 30-33.)
Accordingly, it appears that the ALJ improperly substituted his own lay opinion for competent
medical opinion evidence. It is well settled that anALJ is not permitted to substitute his own
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expertise or view of the medical proof for any competent medical opinion. Greek, 802 F.3d at
375; Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (stating that “the ALJ cannot arbitrarily
substitute his own judgment for competent medical opinion”); Balsamo v. Chater, 142 F.3d 75, 81
(2d Cir. 1998).
Further, even if the ALJ properly assessed Dr. Ganesh’s opinion, the ALJ’s RFC
determination that Plaintiff could perform a range of medium work is not supported by substantial
evidence based on the current record. See id., at 81-82 (finding that the ALJ’s RFC determination
was not supported by substantial evidence in the absence of a medical opinion indicating that the
plaintiff could perform the work activities in the RFC determination); House v. Astrue, 11-CV0915, 2013 WL 422058, at *4 (N.D.N.Y. Feb. 1, 2013) (holding that remand was necessary
where there was no medical opinion supporting the ALJ’s RFC determination); Larkin v. Colvin,
13-CV-0567, 2014 WL 4146262, at *9 (N.D.N.Y. Aug. 19, 2014) (holding that remand was
required where the record lacked a broad assessment of Plaintiff’s physical functional limitations
from an acceptable medical source).
As discussed above, the ALJ determined that Plaintiff had the RFC to perform a range of
medium work without a medical opinion indicating that Plaintiff could perform all of the
exertional requirements of medium work, including lifting up to 50 pounds occasionally (up to
one-third of an eight-hour workday), and lifting and carrying up to 25 pounds frequently (up to
two-thirds of an eight-hour workday), and sitting, standing, and walking for six hours in an eighthour workday. (T. 30-33); 20 C.F.R. § 416.967(c); SSR 83-10, 1983 WL 31251, *6 (1983). The
Court recognizes that, “where the medical evidence shows relatively little physical impairment, an
ALJ permissibly can render a common sense judgment about functional capacity even without a
physician's assessment.” See House, 2013 WL 422058, at *4. However, that is not the case in the

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present matter because the ALJ determined that Plaintiff’s hydrocephalus is a severe impairment.
(T. 28.)
Finally, the Court notes that an ALJ has an affirmative duty to develop a claimant’s
complete medical history. 20 C.F.R. § 416.912(d); Lamay v. Comm’r of Soc. Sec., 562 F.3d 503,
508-09 (2d Cir. 2009). By statute, an ALJ is required to develop a claimant’s complete medical
history for at least twelve months before an application for benefits was filed, and for a longer
period when there is reason to believe that additional information is necessary to reach a decision.
DeChirico v. Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998). This duty exists even when a
claimant is represented by counsel, due to the non-adversarial nature of a benefits proceeding.
DeChirico, 134 F.3d at 1184; Lamay, 562 F.3d at 509.
Recontacting medical providers is necessary when the ALJ cannot make a disability
determination based on the evidence of record. 20 C.F.R. § 416.920b(c)(1). Reviewing courts
hold that an ALJ is not required to seek additional information absent “obvious gaps” in the
administrative record that preclude an informed decision. Rosa, 168 F.3d at 79 n.5. However,
additional evidence or clarification is sought when there is a conflict or ambiguity that must be
resolved, when the medical reports lack necessary information, or when the reports are not based
on medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. §
416.920b(c)(1)-(4); Rosa, 168 F.3d 72, 80; Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998).
Here, the ALJ did not recontact Dr. Ganesh to resolve any ambiguities in her opinions, or to
obtain a function by function opinion of Plaintiff’s work-related physical abilities and limitations.
Nor did the ALJ obtain an updated medial opinion of Plaintiff’s physical limitations despite
acknowledging the Appeals Council’s remand order instructions to update the evidence regarding

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Plaintiff’s medical conditions and further consider Plaintiff’s maximum RFC.5 (T. 25.)
For these reasons, remand is necessary for the ALJ to obtain at least one complete opinion
of Plaintiff’s physical work-related abilities and limitations. This may include (1) contacting
Plaintiff’s treating medical sources, and/or (2) ordering an updated physical consultative
examination to obtain a complete function by function opinion of Plaintiff’s work-related physical
abilities and limitations.6 Remand is also required for the ALJ to reevaluate Plaintiff’s physical
RFC based on a fully developed record. Because the Court has concluded that remand is required
for the ALJ to (1) develop the record, (2) reassess the severity of Plaintiff’s migraine headaches,
and (3) reevaluate Plaintiff’s physical RFC, the Court need not reach Plaintiff’s remaining
arguments concerning subsequent steps of the sequential analysis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 10) is
GRANTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 11) is
DENIED; and it is further

5

The regulations provide that, upon remand, an ALJ “shall take any action that is ordered by the
Appeals Council and may take any additional action that is not inconsistent with the Appeals Council’s remand
order.” 20 C.F.R. § 416.1477(b). Accordingly, reviewing courts have found that failure to comply with the Appeals
Council’s remand order may be grounds for remand. See Mortise v. Astrue, 08-CV-0990, 713 F. Supp. 2d 111, 12024 (N.D.N.Y. 2010) (remanding for calculation of benefits based on the ALJ’s failure to comply with the Appeals
Council’s remand order); Gorman v. Astrue, 08-CV-0251, 2009 WL 4884469, at *10 (N.D.N.Y. Dec. 10, 2009)
(remanding based on the ALJ’s failure to comply with the Appeals Council’s remand order); Scott v. Barnhart, 592
F. Supp 2d 360, 371-72 (W.D.N.Y. 2009) (“The ALJ’s failure to comply with the Appeals Council’s order
constitutes legal error, and necessitates a remand.”)
6

See 20 C.F.R. § 416.920b(c)(1) (providing that an ALJ may recontact a medical source for
clarification or to obtain additional information); 20 C.F.R. § 416.920b(c)(3) (providing that an ALJ may order a
consultative examination to resolve an inconsistency or insufficiency in the record evidence).

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ORDERED that this matter is REMANDED to Defendant, pursuant to 42 U.S.C. §
405(g), for further proceedings consistent with this Decision and Order.
Dated: February 7, 2017
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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