Vargas v. Commissioner of Social Security

Filing 22

DECISION & ORDER that deft's motion for judgment on the pleadings (Dkt. No. 20) is GRANTED; that deft's decision denying pltf disability benefits is AFFIRMED; and pltf's complaint (Dkt. No. 1) is DISMISSED. Signed by Magistrate Judge Therese Wiley Dancks on 6/29/2017. (Copy served upon pltf via regular and certified return receipt mail on 6/30/2017)(see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
RAYMOND VARGAS,
Plaintiff,
v.

6:16-CV-0484
(TWD)

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

OF COUNSEL:

RAYMOND VARGAS
Plaintiff, Pro Se
7700 Stone Road
Whitesboro, NY 13492
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

HEETANO SHAMSOONDAR,
ESQ.

THÉRÈSE WILEY DANCKS, United States Magistrate Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Raymond Vargas
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g), is Defendant’s motion for judgment on the pleadings. (Dkt.
No. 20.) For the reasons set forth below, Defendant’s motion for judgment on the pleadings is
granted. The Commissioner’s decision denying Plaintiff’s disability benefits is affirmed, and
Plaintiff’s Complaint is dismissed.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1968, making him 43 years old at his alleged onset date and 48 years
old at the date of the final Social Security Administration (“SSA”) decision. Plaintiff has an 11th
grade education and past relevant work as a construction worker. Generally, Plaintiff alleges
disability consisting of left knee instability, hearing loss, artery damage, and history of three
gunshot wounds.
B.

Procedural History

Plaintiff applied for Disability Insurance Benefits on December 13, 2011. Plaintiff’s
application was initially denied on March 7, 2012, after which he timely requested a hearing
before an Administrative Law Judge (“ALJ”). Plaintiff appeared at hearings before ALJ Eric W.
Borda on June 27, 2012, and September 12, 2012. On December 21, 2012, ALJ Borda issued a
written decision finding Plaintiff not disabled under the Social Security Act. (T. 132-141. 1) On
April 8, 2014, the Appeals Council remanded for evaluation of Plaintiff’s obesity, to obtain
additional evidence related to Plaintiff’s knee impairment, to obtain clarification from a medical
expert (if necessary), to give further consideration to the RFC, and to obtain evidence from a
vocational expert. (T. 146-47.) Plaintiff attended subsequent hearings with ALJ Bruce Fein on
July 31, 2014, and June 11, 2015. On August 25, 2015, ALJ Fein issued a written decision
finding Plaintiff not disabled under the Social Security Act. (T. 14-24.) On March 18, 2016, the

1

The Administrative Transcript is found at Dkt. No. 11. 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.
2

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 was insured for disability
benefits under Title II of the Social Security Act until December 31, 2016. (T. 16.) Second, the
ALJ found that Plaintiff has not engaged in substantial gainful activity since March 16, 2011, the
alleged onset date. (T. 17.) Third, the ALJ found that Plaintiff’s status post-bilateral knee and
left wrist surgery, status-post right ankle fracture, osteoarthritis, intermittent explosive disorder,
and mood disorder (not otherwise specified) are severe impairments, while his status-post
gunshot wounds, left-sided hearing loss, reported nerve damage, arterial damage, and obesity are
non-severe impairments. (T. 17-18.) 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. 18-19.) More specifically, the ALJ considered Listing 1.02 (major
dysfunction of a joint), 1.06 (fracture of the femur, tibia, pelvis, or one or more of the tarsal
bones), 12.02 (organic mental disorders), 12.04 (affective disorders), 12.05 (intellectual
disability), and 12.06 (anxiety-related disorders). Id. Fifth, the ALJ found that Plaintiff has the
residual functional capacity (“RFC”) to
lift/carry 20 pounds occasionally and 10 pounds frequently; stand
and/or 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 (all other), stoop, balance, kneel, crouch, and
crawl but never climb ropes, ladders, and scaffolds; should avoid
concentrated exposure to excessive vibrations and extreme cold; and
is limited to a low stress job defined as involving only occasional
decision-making, changes in work setting, judgment required, and
interaction with co-workers, supervisors, and the public.
3

(T. 20.) Sixth, the ALJ found that Plaintiff has past relevant work as a construction worker, but
that the limitations in the RFC assessment prevent him performing this work. (T. 22.) Seventh,
and finally, the ALJ determined that there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform, including marker II, small products assembler, and
mail clerk. (T. 23.)
D.

Defendant’s Brief and Plaintiff’s Failure to File a Brief

Plaintiff, proceeding pro se, did not file a brief in this matter despite being afforded
multiple opportunities to do so. (Dkt. Nos. 12, 14-15, 17.) The Court is entitled to consider the
record without the benefit of any arguments he might have asserted. (See General Order #18 at
7.)
Generally, Defendant asserts three arguments in support of her motion for judgment on
the pleadings. First, Defendant argues that Plaintiff’s impairments do not meet or equal an
impairment in the Listings. (Dkt. No. 20 at 16-19. 2) Second, Defendant argues that the ALJ’s
RFC assessment is supported by substantial evidence. Id. at 19-24. More specifically,
Defendant argues that the ALJ properly considered and weighed the medical opinion evidence
and properly found that Plaintiff’s allegations were not entirely credible because the medical
evidence and Plaintiff’s reported activities were inconsistent with disability. Id. Third, and last,
Defendant argues that the ALJ’s Step Five finding that Plaintiff remains able to perform a
significant number of jobs in the national economy is supported by substantial evidence,
including the vocational expert’s testimony. Id. at 24-25.

2

Page numbers in citations to Defendant’s brief refer to the actual page numbers of the
brief rather than the page number assigned by the Court’s electronic filing system.
4

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.”); see also 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 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
5

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. §§ 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, 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 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.

6

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).
III.

ANALYSIS
A.

Whether the ALJ Properly Determined That Plaintiff’s Impairments Do Not
Meet or Equal a Listed Impairment

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. 20 at 16-19.) To those
reasons, the Court adds the following analysis.
A plaintiff will be found disabled if the individual has an impairment or combination of
impairments that meets or equals one of the Listings, and meets the duration requirement. 20
C.F.R. § 404.1520(d). The burden is on the plaintiff to present medical findings that his or her
impairments match a Listing or are equal in severity to a Listing. Davis v. Astrue, 6:09-CV-0186
(LEK/GHL), 2010 WL 2545961, at *3 (N.D.N.Y. June 3, 2010) 3. A plaintiff must show that his
or her impairment meets or equals all of the specified medical criteria. Sullivan v. Zebley, 493
U.S. 521, 530 (1990) (superceded by statute on other grounds). If a plaintiff’s impairment
“manifests only some of those criteria, no matter how severely,” the impairment does not
qualify. Id. Additionally, while an ALJ “should set forth a sufficient rationale in support of his
decision to find or not to find a listed impairment,” the absence of an express rationale for an
ALJ’s conclusions does not prevent a court from upholding them so long as we are “able to look
to other portions of the ALJ’s decision and to clearly credible evidence in finding that his

3

Copies of all unpublished decisions cited herein will be provided to Plaintiff in
accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
7

determination was supported by substantial evidence.” Berry v. Schweiker, 675 F.2d 464, 469
(2d Cir. 1982).
The ALJ found that Plaintiff’s impairments did not meet or equal any of the applicable
Listings, discussing specific Listing sections and providing reasons based on the evidence in the
record as to why Plaintiff did not meet the criteria of those Listing sections. (T. 18-19.) These
explanations are clear and provide this Court with sufficient information to determine the ALJ’s
rationale.
In this case, the record does not show that Plaintiff meets all the criteria of any of the
applicable Listings. In terms of Listing 1.02, there was no evidence that Plaintiff required an
assistive device to ambulate other than during the period immediately following the various
treatments for his gunshot wounds. 4 Although consultative examiner Sharon Revan, M.D.,
observed that Plaintiff had a limp to the left, was unable to walk on his heels and toes, and had
some warmth and swelling in his right knee with pain on range of motion, she opined only a mild
limitation in his ability to walk. (T. 581-83.) Additionally, although consultative examiner
Tanya Perkins-Mwantuali, M.D., opined a moderate-to-marked limitation for walking (which she
quantified as two hours out of an eight-hour workday) based on her examination findings, this
still does not substantiate an inability to ambulate effectively. (T. 834, 838.) While some
examinations did reveal diminished strength in Plaintiff’s lower extremities related to his knees,

4

Listing 1.02 defines an “inability to ambulate effectively” as “an extreme limitation of the
ability to walk,” such as insufficient functioning of the lower extremities that prevents the
individual from ambulating without use of a hand-held assistive device that limits the use of both
upper extremities. 20 C.F.R. § 404, Subpart P, App. I, 1.00(B)(2)(b)(1). Similarly, the Listing
defines the ability to ambulate effectively as being capable of walking at a reasonable pace over
a sufficient distance to carry out activities of daily living and to travel without companion
assistance to work or school. 20 C.F.R. § 404, Subpart P, App. I, 1.00(B)(2)(b)(2).
8

these findings do not indicate that he was unable to ambulate effectively. (See e.g., T. 1736,
1741, 1747, 1753, 1757.) Additionally, while some examinations showed an antalgic or limping
gait, others revealed no gait abnormalities. (See, e.g., T. 757, 818, 832, 846, 849, 852, 1741,
1886, 1916, 1939.) Consequently, there is substantial evidence to support the ALJ’s conclusion
that Plaintiff had not demonstrated an inability to ambulate effectively. Likewise, there is very
little objective evidence of ongoing limitations in Plaintiff’s left hand, and certainly nothing to
show he had an “extreme loss of function of both upper extremities.” 20 C.F.R. § 404, Subpart
P, App. I, 1.00(B)(2)(c). There is substantial evidence to support the ALJ’s finding that Plaintiff
did not meet Listing 1.02. 5
In terms of the applicable mental Listings (12.02, 12.04, and 12.06), the ALJ found that
Plaintiff had no restrictions in activities of daily living, moderate difficulties in social functioning
and maintaining concentration, persistence, and pace, and no episodes of decompensation of
extended duration. (T. 19.) These conclusions are supported by the overall record, which,
despite a few instances of greater symptoms, includes mental health examinations showing
primarily normal concentration, attention, and memory, fluctuating but generally mild mood
abnormalities, and good response to medications. (See, e.g., T. 757-58, 796, 800-01, 806, 810,
820, 823, 846, 849, 853, 1802, 1804, 1806, 1854-55, 1857, 1886, 1908, 1911.)
On May 12, 2014, consultative examiner Rebecca Fisher, Psy. D., observed Plaintiff was
cooperative with adequate social skills, was well-groomed, and displayed a coherent and goal
directed thought process, appropriate affect, neutral mood, and intact attention and concentration,

5

Listing 1.06 also requires an inability to ambulate effectively, so there is also substantial
evidence to support the ALJ’s finding on that section for the same reasons. 20 C.F.R. § 404,
Subpart P, App. I, 1.06.
9

though he did also display lethargic motor behavior, poor eye contact, slow but intelligible
speech, mildly impaired memory, and below average intellectual functioning. (T. 823-24.)
Based on these observations, Dr. Fisher opined Plaintiff had the following functional limitations:
no limitation in ability to follow and understand simple directions, perform simple tasks
independently, maintain attention and concentration, maintain a regular schedule, learn new
tasks, make appropriate decisions, and relate adequately with others; a mild limitation in ability
to deal appropriately with stress; and a moderate limitation in ability to perform complex tasks
independently. (T. 824.) In a separate form, Dr. Fisher opined Plaintiff had moderate limitations
in understanding and remembering complex instructions and making judgments on complex
work-related decisions, as well as mild limitations in carrying out complex instructions and
making judgments on simple work-related decisions. (T. 826-28.)
On December 24, 2014, Nurse Practitioner (“N.P.”) Robert Sharpe noted that he told
Plaintiff “frankly” that he “did not see any reason from a psychiatric standpoint why [Plaintiff]
was not able to work.” (T. 1802.) The medical evidence therefore does not indicate that Plaintiff
experienced the marked limitations or the episodes of decompensation of extended duration
needed to meet any of the applicable mental Listings. 6 (T. 18-20.)

6

Paragraph B of the mental Listings requires that the individual display at least two of the
following as a result of a mental impairment: marked restriction of activities of daily living;
marked difficulties in maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; and repeated episodes of decompensation, each of extended
duration. 20 C.F.R. § 404, Subpart P, App. I, 12.00. Paragraph C of the mental Listings requires
that the mental impairment cause more than a minimal limitation in the ability to do basic work
activities, with symptoms or signs currently attenuated by medication or psychosocial support, as
well as one of the following: repeated episodes of decompensation, each of extended duration; a
disease process where even a minimal increase in mental demands or change in environment
would cause the individual to decompensate; or a current history of one or more years’ inability
to function outside of a highly supportive living arrangement, with indication of the continued
need for such an arrangement. Id.
10

For all these reasons, the ALJ’s Step Three Listing findings are supported by substantial
evidence, and remand is not required on this basis.
B.

Whether the RFC Determination is Supported By Substantial Evidence and
Based on a Proper Assessment of the Opinion Evidence

After carefully considering the matter, the Court answers this question in the negative,
but finds that the errors committed are nonetheless harmless based on the vocational expert’s
testimony from the 2015 hearing.
Residual functional capacity 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[.]” Pardee v.
Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (quoting Melville v. Apfel, 198 F.3d 45, 52
(2d Cir. 1999)). “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.” Id.
(citing 20 C.F.R. § 404.1545(a)).
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). “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 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,
11

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) (alteration in original).
“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). Additionally, when weighing opinions from
sources who are not considered “medically acceptable sources” 7 under the 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.

7

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).
12

“[A]n ALJ is entitled to rely upon the opinions of both examining and nonexamining State
agency medical consultants, since such consultants are deemed to be qualified experts in the field
of social security disability.” Gamble v. Comm’r of Soc. Sec., No. 1:15-CV-0352 (GTS/WBC),
2016 WL 4491710, at *5 (N.D.N.Y. July 25, 2016) (quoting Baszto v. Astrue, 700 F. Supp. 2d
242, 249 (N.D.N.Y. 2010)), adopted by 2016 WL 4487780 (N.D.N.Y. Aug. 25, 2016).
In determining that Plaintiff remained capable of performing a range of light work with
additional postural, environmental, and mental limitations, the ALJ afforded great weight to the
opinion of consultative examiner Dr. Revan, some weight to the interrogatory and testimony of
non-examining medical expert Louis Fuchs, M.D., and little weight to the opinion of consultative
examiner Dr. Perkins-Mwantuali in relation to Plaintiff’s physical functioning, and great weight
to the opinion of consultative examiner Dr. Fisher and some weight to the statement of N.P.
Sharpe in relation to Plaintiff’s mental functioning. (T. 21-22.)
Turning first to the mental RFC, this Court agrees with Defendant that the ALJ was
entitled to rely on Dr. Fisher’s opinion, particularly given the absence of a functional opinion
regarding Plaintiff’s mental abilities from any treating physician or other source. (Dkt. No. 20 at
22.) The ALJ found that Dr. Fisher’s opinion was entitled to great weight because she was an
acceptable source, had examined Plaintiff, and her finding of at most moderate mental
limitations were consistent with Plaintiff’s “presentation during exams, positive response to
conservative treatment, and varied activities of daily living.” (T. 22.) As already noted above in
Section III.A of this Decision and Order, the mental treatment evidence as a whole did not show
ongoing mental health symptoms suggestive of greater limitation, and N.P. Sharpe, who
provided mental health care for Plaintiff, went so far as to explicitly indicate that there was no

13

reason that Plaintiff would be unable to work from a psychiatric standpoint. 8 (T. 1802.) The
RFC accounts for evidence showing limitations in dealing with stress and decision-making and
even accommodates some of Plaintiff’s reports of difficulty dealing with others. Therefore, the
ALJ was entitled to rely on Dr. Fisher’s opinion and the mental portion of the RFC determination
is supported by substantial evidence.
However, the supportability of the physical RFC assessment is not so clear. The ALJ
afforded great weight (the most afforded to any physical opinion) to Dr. Revan’s February 2012
opinion, noting that Dr. Revan was an acceptable medical source who had the opportunity to
examine Plaintiff and that her primarily mild findings were consistent with the medical imaging,
Plaintiff’s presentation on exams, his surgical history, and his reported activities of daily living.
(T. 21.) By contrast, the ALJ afforded only some weight to the opinion from medical expert Dr.
Fuchs, noting that while Dr. Fuchs was an acceptable medical source with a specialty in
orthopedic surgery, he had not examined Plaintiff and (as particularly relevant to this Court’s
analysis) his limitations related to Plaintiff’s abilities to stand and walk were inconsistent with
physical exams that did not show difficulties with these tasks other than the presence of an
antalgic gait. (T. 21-22.) The ALJ then afforded little weight to the opinion from consultative
examiner Dr. Perkins-Mwantuali, finding that while Dr. Perkins-Mwantuali was an acceptable
source who had examined Plaintiff, her findings were inconsistent with claimant’s presentation
on exams, his positive response to treatment, and his reported activities of daily living. (T. 22.)

8

The ALJ afforded some weight to this opinion because he found it to be consistent with
the evidence as a whole, but declined to afford it greater weight due to the lack of a functional
assessment of Plaintiff’s mental abilities. (T. 22.)
14

This Court is not convinced that substantial evidence supports the ALJ’s finding that
Plaintiff remains able to stand and walk for six hours in an eight-hour workday despite his
impairments. The ALJ relied on the 2012 opinion from Dr. Revan, who opined in a rather vague
manner that Plaintiff had only a mild limitation in walking. (T. 21, 583.) However, it is not
clear that this opinion is consistent with Dr. Revan’s own examination, which showed that
Plaintiff ambulated with a limp, was unable to walk on his toes, displayed pain when walking on
his heels, could only squat halfway down while holding onto something, needed help changing
for the exam, and had swelling and pain with range of motion of his knee. (T. 581-82.)
Nor does a “mild” limitation appear to be consistent with the other treatment evidence,
contrary to the ALJ’s assertion. Dr. Perkins-Mwantuali observed in May 2014 that Plaintiff had
an antalgic gait, could not walk on his heels or toes due to lower extremity pain, and had a
minimal ability to squat; she also found diminished hip range of motion, swelling and decreased
flexion in the left knee, diminished ankle range of motion, and diminished sensation in the fourth
and fifth toes of the left foot. (T. 832-33.) A left knee arthrogram from November 16, 2012,
showed significant osteoarthritic changes with a suspicion of poorly visualized meniscal tears. 9
(T. 678.) A right knee arthrogram showed osteoarthritic changes, and though it did not reveal a
definitive tear, it raised suspicions of a tear in the posterior horn of the medial meniscus. (T.
859.) As noted previously, Plaintiff was observed to have an antalgic or otherwise abnormal gait

9

It is important to note that the ALJ’s assertions that the medical imaging supported fairly
mild findings ignore the fact that Plaintiff was unable to undergo MRI testing of his knees due to
the metal bullet that remained lodged in his skull. (See e.g., T. 493, 502, 690.) Because such
imaging would be more likely to provide a better understanding of his knee condition than the xrays and CT scans that were taken, and because the arthrograms suggest greater impairment than
shown in those scans, the ALJ’s reliance on the objective imaging that shower milder findings in
this case is not wholly persuasive.
15

on multiple examinations. (T. 581, 690, 727, 819, 832, 846, 849, 852, 1882, 1886.) He was also
variously observed to have knee tenderness, swelling, and diminished lower extremity strength
on examinations throughout the relevant period; it was also noted that his knee impairment
appeared to be causing tightness in the Achilles tendon that resulted in calf pain. (See, e.g., T.
681, 700-01, 703, 850, 853, 1719, 1736, 1741, 1747-48, 1757, 1882, 1886.)
Additionally, Plaintiff’s reported activities of daily living do not support an ability to
stand or walk for six hours in an eight-hour workday. At the September 2012 hearing, Plaintiff
testified he could not walk much due to his knee and indicated he could only walk a few blocks
at one time and stand less than a half hour before needing to sit. (T. 47-48.) At the June 2015
hearing, Plaintiff testified he could walk approximately a block or two at once and could stand “a
couple of hours” while shopping or doing things around the house, such as cleaning every few
weeks and cooking once per day. (T. 76-77.) He reported getting cramps in his calves daily
when walking due to muscle tightness related to his knee impairment. (T. 81-82.) In a function
report from 2012, Plaintiff reported he could not constantly stand at the stove while cooking due
to pain, but he performed household chores such as light dusting, sweeping, and laundry every
two weeks, and drove short distances. (T. 421.) He indicated he had leg pain if standing for
more than 10 or 15 minutes and could only walk a couple of blocks at one time. (T. 423-24.)
Contrary to the ALJ’s assertions, there is nothing in Plaintiff’s reported daily activities that is
inconsistent with Dr. Fuchs’ and Dr. Perkins-Mwantuali’s opinions that Plaintiff was limited to
standing and walking two hours total in an eight-hour workday.
Most tellingly, the two other opinions regarding physical functioning, provided by
another examining physician and an orthopedic surgeon who had the opportunity to examine all
the evidence before the ALJ when affirming his earlier interrogatory opinion at the June 2015
16

hearing, both indicate an ability to stand and walk for only two hours total in an eight-hour
workday. (T. 838, 904.) Dr. Fuchs also opined that Plaintiff would need the ability to change
positions at will within the confines of his ability to sit eight hours in an eight-hour day and stand
or walk two hours in an eight-hour day. (T. 904.)
Although the treatment evidence alone does not reveal overwhelmingly clear evidence
that Plaintiff would be restricted to standing and walking for two hours in an eight-hour workday
contrary to the ALJ’s assessment, orthopedic surgeon Dr. Fuchs concluded that such a limitation
was warranted after reviewing all of this evidence. However, rather than relying on Dr. Fuchs’
expert assessment of the evidence, the ALJ instead relied on his own assessment of the treatment
evidence and a less-than-specific opinion from a one-time examiner who did not review the
treatment records. (T. 21-22.) While it is the duty of the ALJ to weigh all the evidence and
make the final RFC determination, the circumstances of this case suggest that the ALJ
improperly substituted his own lay opinion of the medical evidence for that of a specialist
physician. Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999) (“[T]he ALJ cannot arbitrarily
substitute his own judgment for competent medical opinion.”) (internal quotations omitted);
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“[W]hile an [ALJ] is free to resolve issues of
credibility as to lay testimony or to choose between properly submitted medical opinions, he is
not free to set his own expertise against that of a physician who [submitted a medical opinion to]
or testified before him.”); see also Provencher v. Comm’r of Soc. Sec., No. 6:15-CV-1287
(GTS), 2017 WL 56702, at *5 (N.D.N.Y. Jan. 5, 2017) (“It is well settled that the ALJ is not
permitted to substitute his or her own expertise or view of the medical proof for any competent
medical opinion.”) (citing Greek, 802 F.3d at 375; Rosa, 168 F.3d at 79; Balsamo, 142 F.3d at
81). Accordingly, there is not substantial evidence to support the ALJ’s assertion that Dr. Fuchs’
17

opinion was inconsistent with the evidence, particularly as the only opinion that suggests a
greater ability to stand and walk is couched in fairly vague terms and does not appear to be
consistent with that physician’s own examination. The ALJ’s rejection of Dr. Fuchs’ opinion,
and particularly the limitations related to Plaintiff’s ability to stand and walk, is therefore not
supported by substantial evidence, which in turn leaves the physical RFC assessment
unsupported by substantial evidence.
However, based on the vocational expert’s testimony at the hearing, this error is
nonetheless harmless. An error is considered harmless where proper application of standards or
consideration of evidence would not change the outcome of the ALJ’s decision. Jaghamin v.
Comm’r of Soc. Sec., No. 1:11-cv-1273 (GLS), 2013 WL 1292061, at *7 (N.D.N.Y. Mar. 28,
2013) (citing Walzer v. Chater, No. 93-cv-6240 (LAK), 1995 WL 791963, at *9 (S.D.N.Y. Sept.
26, 1995)); Dombrowski v. Astrue, No. 5:12-cv-0638 (GLS), 2013 WL 528456, at *3 (N.D.N.Y.
Feb. 11, 2013); see Ryan v. Astrue, 650 F. Supp. 2d 207, 217 (N.D.N.Y. 2009) (finding that,
although the ALJ improperly discounted the treating physician’s opinion, that error was harmless
because the ALJ nonetheless included those limitations in the RFC). Although substantial
evidence does not support the ALJ’s conclusion that Plaintiff remained capable of standing and
walking six hours in an eight-hour workday, the opinions of Dr. Fuchs and Dr. PerkinsMwantuali do not necessarily indicate that the ALJ’s ultimate determination is not supported by
substantial evidence. Notably, the ALJ posed a hypothetical question to the vocational expert at
the hearing in which he described an individual who could perform sedentary work (described as
lifting up to ten pounds, standing and walking for two hours total with normal breaks, and sitting
for up to six hours total with normal breaks) with all the other non-exertional limitations
included in the RFC. (T. 113-14.) In response to this hypothetical, the vocational expert
18

testified that Plaintiff would be able to perform other work in the national economy such as
optical final assembler, document preparer, and stem mounter. (T. 114.) The vocational expert
also testified that the need to change positions at will between sitting and standing would not
prevent an individual from performing the identified sedentary occupations because, in his
opinion, they “generally can be done from standing or sitting position[s].” (T. 117.) Although
the vocational expert noted the individual would need to stoop to their desk while standing in
order to remain on task, he also noted that the hypothetical question allowed the individual to
stoop occasionally, which would be consistent with an individual who was limited to standing
only two hours in an eight-hour workday. 10 (T. 117-18.) Therefore, even if the ALJ had
accepted limitations for standing and walking for only two hours in an eight-hour workday, as
opined by both Dr. Fuchs and Dr. Perkins-Mwantuali, and the need to change positions between
sitting and standing at will, as opined by Dr. Fuchs, the vocational expert’s testimony indicates
that there would still be a substantial number of jobs Plaintiff would be able to perform with all
of the supported limitations. Because the outcome would not change in the absence of the ALJ’s
errors in weighing the opinion evidence, those errors are harmless and do not necessitate remand.
As a corollary matter, the ALJ found that Plaintiff was not entirely credible, noting that
his reports of symptoms were not consistent with much of the objective medical evidence, that
Plaintiff had some non-compliance with his mental health medications and treatment, and that he
reporting the ability to perform a range of activities despite his limitations, including cooking,
cleaning, shopping, socializing with friends, going to church, going to the casino, and driving.

10

As the vocational expert noted, the term “occasionally” is defined for Social Security
disability purposes as up to one-third of the workday. (T. 118.) See also SSR 96-9p, 1996 WL
374185, at *3 (July 2, 1996) (defining “occasionally” as “occurring from very little up to onethird of the time, and would generally total no more than about 2 hours of an 8-hour workday”).
19

(T. 21.) The ALJ is required to provide reasons for rejecting a claimant’s allegations of
symptoms with “sufficient specificity to enable [this Court] 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. (alternation in original) (quoting Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638,
642 (2d Cir. 1983); Aponte v. Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d Cir.
1984)). Because the ALJ has provided specific reasons grounded in the evidence for finding that
Plaintiff’s allegations were not entirely credible and his conclusion regarding Plaintiff’s
credibility is supported by substantial evidence, this Court defers to that finding. 11
Because the ALJ’s errors in assessing the opinion evidence and RFC are harmless, the
ALJ’s ultimate decision remains supported by substantial evidence and remand is not warranted.
C.

Whether the Step Five Finding 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. 20 at 24-25.) To those
reasons, the Court adds the following analysis.

11

Although Plaintiff’s reported daily activities do not contradict Dr. Fuchs’ and parts of Dr.
Perkins-Mwantuali’s opinions related to Plaintiff’s ability to stand and walk as noted previously,
the ALJ’s separate finding that those activities reported by Plaintiff were not consistent with the
extent of disability alleged is not unreasonable and is supported by substantial evidence in the
record.
20

Although the claimant has the general burden to prove he has a disability under the
definitions of the Social Security Act, the burden shifts to the Commissioner at Step Five “to
show there is other work that [the claimant] can perform.” McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014) (alteration in original) (quoting Brault v. Soc. Sec. Admin., 683 F.3d 443, 445
(2d Cir. 2012)). The Commissioner can usually establish that there is other work that a plaintiff
can perform by reliance on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404,
Subpart P, App. 2, commonly referred to as “the Grids.” Baldwin v. Astrue, No. 07-Civ.-6958
(RJH/MHD), 2009 WL 4931363, at *20 (S.D.N.Y. Dec. 21, 2009). However, when a plaintiff
suffers from nonexertional limitations that significantly limit the plaintiff’s employment
opportunities, exclusive reliance on the Grids is inappropriate. Id. at *27. However, “the mere
existence of a non-exertional limitation does not automatically . . . preclude reliance on the
guidelines.” Zabala v. Astrue, 595 F.3d 402, 410-11 (2d Cir. 2010) (alteration in original)
(quoting Bapp, 802 F.2d at 603.) A plaintiff’s range of potential employment is significantly
limited when the plaintiff “suffers from the additional loss of work capacity beyond a negligible
one or, in other words, one that so narrows a claimant’s possible range of work as to deprive him
of a meaningful employment opportunity.” Baldwin, 2009 WL 4931363, at *27 (internal
quotations omitted).
As noted above in Section III.B of this Decision and Order, the ALJ consulted a
vocational expert and posed hypothetical questions regarding limitations covering the ability to
perform both light and sedentary work with additional postural, environmental, and mental
limitations that resulted in a showing of light and sedentary jobs that could be performed with
those limitations. (T. 112-20.) Because this testimony shows a substantial number of jobs
Plaintiff can perform when the full range of limitations supported by the record are considered,
21

including those the ALJ improperly failed to adopt, the vocational expert’s testimony provides
substantial evidence to support the ALJ’s Step Five finding and remand is not required on this
basis.
ACCORDINGLY, it is
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 20) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.

Dated: June 29, 2017
Syracuse, New York

22

Davis v. Astrue, Not Reported in F.Supp.2d (2010)
2010 WL 2545961

2010 WL 2545961
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Cindy DAVIS, Plaintiff,
v.
Michael J. ASTRUE, Commissioner
of Social Security, Defendant.
No. 6:09–CV–186 (LEK/GHL).
|
June 3, 2010.

Attorneys and Law Firms
Empire Justice Center, Louise Marie Tarantino, Esq., of
Counsel, Albany, NY, for Plaintiff.
Social Security Administration, Office of General
Counsel, Andreea Lechleitner, Esq., Special Assistant
U.S. Attorney, of Counsel, New York, NY, for
Defendant.

REPORT–RECOMMENDATION 1
1

West Headnotes (1)
[1]

Social Security
Particular conditions or impairments in
general
Social Security
Particular cases
ALJ failed to provide rationale for finding
that back impairment did not meet a listing
in a proceeding denying supplemental security
income (SSI) and disability insurance benefits
(DIB) under the Social Security Act to a
claimant alleging disability due to throat
cancer, back pain, and depression. Remand
to allow the ALJ to explain why claimant did
not meet the listing was therefore warranted.
MRIs revealed that claimant suffered from
disc herniation and marked degenerative
disc change. Moreover, claimant consistently
complained of neuro-anatomic distribution
of pain, exhibited limited range-of- motion
in the lumbar spine and positive straight
leg raising, and according to her treating
physician, exhibited decreased strength. 20
C.F.R. Part 404, Subpart P, App. 1, 1.00 et
seq.
5 Cases that cite this headnote

This matter was referred to me for report and
recommendation by the Honorable Lawrence E.
Kahn, Senior United States District Judge, pursuant
to 28 U.S.C. § 636(b) and Northern District of New
York Local Rule 72.3.

GEORGE H. LOWE, United States Magistrate Judge.
I. BACKGROUND
A. Procedural History
*1 On March 27, 2006, Plaintiff Cindy Davis protectively
applied for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). See Administrative
Transcript (“T”) 84–88, 327–32. On June 16, 2006,
her applications were denied by the Social Security
Administration. T 50–54, 335–39. On December 11,
2007, 2 a hearing was held before an Administrative Law
Judge (“ALJ”). T 343–63. On April 25, 2008, the ALJ
determined that Plaintiff was not disabled. T 12–22.
2

More than one year lapsed between the day Plaintiff
was initially denied benefits and the day that a hearing
was held due to issues regarding the timeliness of
Plaintiff's requests for hearings. T 25, 27–31, 64–66,
56–58, 333.

Plaintiff appealed to the Appeals Council. On December
22, 2008, the Appeals Council denied Plaintiff's request for
review, making the ALJ's decision the final decision of the
Commissioner. T 5–7. Plaintiff commenced this action on
February 18, 2009. Dkt. No. 1.

B. Plaintiff's Contentions
Plaintiff makes the following claims:

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Davis v. Astrue, Not Reported in F.Supp.2d (2010)
2010 WL 2545961

1. The ALJ erred by failing to find that Plaintiff's back
impairment met a listed impairment. Dkt. No. 12 at 16 n.
23.
2. The ALJ failed to properly evaluate the treating sources'
opinions. Dkt. No. 12 at 14–18.
3. The residual functional capacity (‘RFC”) determination
was not supported by substantial evidence. Dkt. No. 12 at
18–22.
4. The ALJ should have found Plaintiff credible. Dkt. No.
12 at 22–24.
5. The Commissioner erred by applying the Medical–
Vocational Guidelines. Dkt. No. 12 at 24–25.
Defendant disagrees, and argues that the decision finding
Plaintiff not disabled should be affirmed. Dkt. No. 14.

II. APPLICABLE LAW
A. Standard for Benefits
To be considered disabled, a plaintiff seeking disability
insurance benefits or supplemental security income
benefits must establish that he is “unable to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than
twelve months.” 42 U.S.C. § 1382c(a)(3)(A). In addition,
the plaintiff's
physical or mental impairment or
impairments [must be] of such
severity that he is not only unable
to do his previous work but cannot,
considering his age, education, and
work experience, engage in any
other kind of substantial gainful
work which exists in the national
economy, regardless of whether such
work exists in the immediate area
in which he lives, or whether a
specific job vacancy exists for him,
or whether he would be hired if he
applied for work.

Acting pursuant to its statutory rulemaking authority
(42 U.S.C. §§ 405(a), 1383(d)(1)), the Social Security
Administration (“SSA”) has promulgated regulations
establishing a five-step sequential evaluation process to
determine disability. 20 C.F.R. § 404.1520. “If at any
step a finding of disability or non-disability can be made,
the SSA will not review the claim further.” Barnhart v.
Thomas, 540 U.S. 20, 24, 124 S.Ct. 376, 157 L.Ed.2d 333
(2003).
At the first step, the agency will find non-disability
unless the claimant shows that he is not working
at a “substantial gainful activity.” [20 C.F.R.] §§
404.1520(b), 416.920(b). At step two, the SSA will find
non-disability unless the claimant shows that he has a
“severe impairment,” defined as “any impairment or
combination of impairments which significantly limits
[the claimant's] physical or mental ability to do basic
work activities.” [20 C.F.R.] §§ 404.1520(c), 416.920(c).
At step three, the agency determines whether the
impairment which enabled the claimant to survive step
two is on the list of impairments presumed severe
enough to render one disabled; if so, the claimant
qualifies. [20 C.F.R. §§ ] 404.1520(d), 416.920(d). If the
claimant's impairment is not on the list, the inquiry
proceeds to step four, at which the SSA assesses whether
the claimant can do his previous work; unless he shows
that he cannot, he is determined not to be disabled. [ ]
If the claimant survives the fourth stage, the fifth,
and final, step requires the SSA to consider so-called
“vocational factors” (the claimant's age, education, and
past work experience), and to determine whether the
claimant is capable of performing other jobs existing
in significant numbers in the national economy. [ ]
20 C.F.R.] §§ 404.1520(f), 404.1560(c), 416.920(f),
416.9630(c).
*2 Barnhart v. Thomas, 540 U.S. at 24–25 (footnotes
omitted).
The plaintiff-claimant bears the burden of proof regarding
the first four steps. See Draegert v. Barnhart, 311 F.3d 468,
472 (2d Cir.2002). If the plaintiff-claimant meets his or her
burden of proof on all four steps, the burden then shifts to
the defendant-Commissioner to prove that the plaintiffclaimant is capable of performing other jobs which exist
in significant numbers in the national economy. Id.

42 U.S.C. § 1382c(a)(3)(B).

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B. Scope of Review
In reviewing a final decision of the Commissioner, a
court must determine whether the correct legal standards
were applied and whether substantial evidence supports
the decision. Johnson v. Bowen, 817 F.2d 983, 985 (2d
Cir.1987). A reviewing court may not affirm an ALJ's
decision if it reasonably doubts whether the proper legal
standards were applied, even if the decision appears to be
supported by substantial evidence. Johnson, 817 F.2d at
986. In addition, an ALJ must set forth the crucial factors
justifying his findings with sufficient specificity to allow a
court to determine whether substantial evidence supports
the decision. Ferraris v. Heckler, 728 F.2d 582, 587–88 (2d
Cir.1984).
A court's factual review of the Commissioner's final
decision is limited to the determination of whether there is
substantial evidence in the record to support the decision.
42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967
(2d Cir.1991). “Substantial evidence has been defined as
‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’ “ Williams o/b/
o Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988)
(citations omitted). It must be “more than a scintilla” of
evidence scattered throughout the administrative record.
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420,
28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).
“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, 859 F.2d at 258 (citations
omitted). However, a reviewing court cannot substitute its
interpretation of the administrative record for that of the
Commissioner if the record contains substantial support
for the ALJ's decision. See Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir.1982), cert. denied, 459 U.S. 1212, 103
S.Ct. 1207, 75 L.Ed.2d 447 (1983).

III. THE PLAINTIFF
At the time of the administrative hearing, Plaintiff was
forty-three years old. T 347. She obtained her general
equivalency diploma. T 110. She lived in an apartment
with her seventeen-year old disabled son. T 348.

From 1984 to 1997, Plaintiff was “home raising [her]
children and [her] spouse was working.” T 90. From
1998 to 2005, Plaintiff worked as a certified nurses' aide.
T 106. From 2006 to 2007, she worked part-time as a
housekeeper. Id.
*3 Plaintiff alleges disability due to throat cancer, back
pain, and depression. T 105.

IV. THE ALJ'S DECISION
In determining that Plaintiff was not disabled, the ALJ
made the following findings:
1. Plaintiff had not engaged in substantial gainful
activity since the alleged onset date. T 17–18.
2. Plaintiff's “cancer of the larynx (in remission), lumbar
degenerative disease, depression, and anxiety,” were
severe impairments. T 18.
3. Plaintiff did not have an impairment or combination
of impairments that met or medically equaled a listed
impairment. T 19.
4. Plaintiff had the physical RFC to perform light
work. In addition, Plaintiff had the mental RFC
to understand, remember, and carry out simple
tasks, learn new simple tasks, maintain attention and
concentration, and work in a low stress environment.
T 19–20.
5. Plaintiff was unable to perform any past relevant
work. Considering her age, education, work
experience, and RFC, there were jobs that existed
in significant numbers in the national economy that
Plaintiff could perform. Therefore, Plaintiff was not
disabled. T 20–21.

V. DISCUSSION
A. Listed Impairment
Plaintiff argues that the ALJ erred by failing to find that
her back impairment met Listing 1.04, and points out that
the ALJ failed to even discuss this listing. Dkt. No. 12 at
16 n. 23. Defendant argues that the ALJ properly found
that Plaintiff's back impairment did not meet or medically
equal this listed impairment. Dkt. No. 14 at 6–8.

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A claimant is automatically entitled to benefits if his or
her impairment(s) meets criteria set forth in “the Listings.”
20 C.F.R. § 404.1520(d). The burden is on the plaintiff
to present medical findings that show that his or her
impairments match a listing or are equal in severity to a
listed impairment. Zwick v. Apfel, No. 97 Civ. 5140, 1998
WL 426800, at *6 (S.D.N.Y. July 27, 1998). In order to
show that an impairment matches a listing, the claimant
must show that his or her impairment meets all of the
specified medical criteria. Sullivan v. Zebley, 493 U.S. 521,
530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990); 20 C.F.R. §
404.1525(d). If a claimant's impairment “manifests only
some of those criteria, no matter how severely,” the
impairment does not qualify. Sullivan, 493 U.S. at 530.
However, in cases in which the disability claim is premised
upon one or more listed impairments of appendix 1, “the
Secretary should set forth a sufficient rationale in support
of his decision to find or not to find a listed impairment.”
Berry, 675 F.2d at 469. While a court may be able “to
look to other portions of the ALJ's decision” and to
“credible evidence” in finding that his determination was
supported by substantial evidence, the Second Circuit
has noted that “[c]ases may arise, however, in which
we would be unable to fathom the ALJ's rationale in
relation to evidence in the record .... In such instances,
we would not hesitate to remand the case for further
findings or a clearer explanation for the decision.” Id.
(citations omitted). Thus, while an ALJ is not obligated to
address specifically each piece of evidence in his decision,
Jones v. Barnhart, No. CV–04–2772, 2004 WL 3158536,
at *6 (E.D.N.Y. Feb.3, 2004), he is not excused from
addressing an issue central to the disposition of the claim.
See Ramos v. Barnhart, No. 02 Civ. 3127, 2003 WL
21032012, at *10 (S.D.N.Y. May 6, 2003) (citing, inter
alia, Ferraris, 728 F.2d at 587 (“We of course do not
suggest that every conflict in a record be reconciled by
the ALJ or the Secretary but we do believe that the
crucial factors in any determination must be set forth with
sufficient specificity to enable us to decide whether the
determination is supported by substantial evidence.”)).
Moreover, “ ‘[w]here the claimant's symptoms as described
by medical evidence appear to match those described in the
Listings, the ALJ must provide an explanation as to why
the claimant failed to meet or equal the Listings.’ ” Pitcher
v. Barnhart, No. 5:06–CV–1395, 2009 WL 890671, at
*11 (N.D.N.Y. Mar.30, 2009) (Bianchini, M.J.) (quoting
Brown ex rel. S.W. v. Astrue, No. 1:05–CV0985, 2008 WL
3200246, at *10 (N.D.N.Y. Aug. 5, 2008)).

*4 Here, the ALJ summarily concluded that Plaintiff did
not have an impairment or combination of impairments
that met or medically equaled a listed impairment. T 19.
The ALJ provided absolutely no rationale for this finding.
Id.
Defendant concedes that the ALJ provided no “express
rationale” for this determination. Dkt. No. 14 at 7.
However, he argues that this omission provides no basis
for reversal because a review of the ALJ's decision and
the evidence of record indicates that Plaintiff's back
impairment did not meet or medically equal Listing 1.04A.
Id .
Listing 1.04A provides as follows:
Disorders of the spine (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized
by neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the
lower back, positive straight-leg raising test (sitting and
supine); ....
20 C.F.R. Pt. 404, Subpt. P, App. 1. Each of these
requirements will be discussed in turn.
The first requirement to meet Listing 1.04A is “evidence of
nerve root compression characterized by neuro-anatomic
distribution of pain.” 20 C.F.R. Pt. 404, Subpt. P, App.
1. An MRI of Plaintiff's lumbar spine revealed a disc
herniation at L5–S1, which “does come in close proximity
to both descending nerve roots and may abut their nerve
root sheaths. Compression of the descending nerve roots
with axial loading may be present.” T 242 (emphasis
added). The MRI also revealed “marked degenerative disc
change with moderate diffuse annular disc bulge at L4–
5 which is stable. Compression of the left descending nerve
root may be present with axial loading.” Id. (emphasis
added). In addition, another MRI revealed a central disc
herniation at L4–5, which may “possibly [be] affecting the
left L5 nerve root minimally.” T 305 (emphasis added).

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Davis v. Astrue, Not Reported in F.Supp.2d (2010)
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Moreover, Plaintiff consistently complained of neuroanatomic distribution of pain. T 203, 273, 275, 310, 323.
She testified at the hearing that the pain radiated up her
neck, and down her left leg. T 351, 359. Further, Aimee
Pearce, M.D. assessed Plaintiff as suffering from lumbar

Plaintiff argues that the RFC determination was
not supported by substantial evidence. Dkt. No. 12.
Defendant argues that the RFC finding was supported by
substantial evidence. Dkt. No. 14.

radiculopathy. 3 T 274; see also T 275.

A claimant's RFC represents a finding of the range of
tasks he or she is capable of performing notwithstanding
the impairments at issue. 20 C.F.R. § 404.1545(a).
An RFC determination is informed by consideration
of 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. Id.; Martone v. Apfel, 70 F.Supp.2d 145,
150 (N.D.N.Y.1999).

3

Radiculopathy is a disease of the nerve roots.
Dorland's Illustrated Medical Dictionary 1595 (31st
ed.2007).

The second requirement to meet Listing 1.04A is
“limitation of motion of the spine.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1. During an examination by Myra
Shayevitz, M.D., Plaintiff exhibited limited range-ofmotion in the lumbar spine. T 205. Defendant himself
notes that a reduced range-of-motion in the lumbar spine
was observed during this examination. Dkt. No. 14 at
13. Plaintiff also exhibited a “decreased range of motion
due to pain” during an orthopaedic consultation with
Rudolph Buckley, M.D. T 324–25.
*5 The third requirement to meet Listing 1.04A is
“motor loss (atrophy with associated muscle weakness
or muscle weakness) accompanied by sensory or reflex
loss.” 20 C.F.R. Pt. 404, Subpt. P, App. 1. Plaintiff's
treating physician, Zoltan Teglassy, M.D., noted that
Plaintiff exhibited decreased strength during a follow-up
appointment for Plaintiff's back pain. T 310.
The fourth requirement to meet Listing 1.04A is a
“positive straight-leg raising test (sitting and supine).”
20 C.F.R. Pt. 404, Subpt. P, App. 1. The record reveals
several instances during which Plaintiff exhibited positive
straight leg raising. T 273–75.
In sum, the evidence indicates that Plaintiff may meet
Listing 1.04A. 4 Thus, the Court is unable to conclude
that the ALJ properly found that Plaintiff met no
listing. Accordingly, it is recommended that this case
be remanded in order to allow the ALJ to explain why
Plaintiff did not meet Listing 1.04A. See Pitcher, 2009 WL
890671, at *12 (holding similarly).
4

I note that the ALJ discussed only some of this
evidence while addressing other steps.

B. Residual Functional Capacity and Treating
Physicians

Plaintiff's primary challenge to the RFC determination
is her belief that the ALJ improperly weighed opinions
rendered by two of her treating physicians. Dkt. No. 12 at
15–18. Defendant argues that the ALJ properly weighed
these opinions. Dkt. No. 14 at 8–19.
The medical opinions of a treating physician are
given “controlling weight” as long as they are “wellsupported by medically acceptable clinical and laboratory
diagnostic techniques” and are not inconsistent with
other substantial evidence contained in the record. 20
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Even if the
treating physician's opinion is contradicted by substantial
evidence and thus is not controlling, it still may be
entitled to significant weight “because the treating source
is inherently more familiar with a claimant's medical
condition than are other sources.” Schisler v. Bowen, 851
F.2d 43, 47 (2d Cir.1988). However, if not controlling,
the proper weight given to a treating physician's opinion
depends upon the following factors: (1) the length of the
treatment relationship and frequency of examinations; (2)
the nature and extent of the treatment relationship; (3)
the medical evidence in support of the opinion; (4) the
consistency of the opinion with the record as a whole; (5)
whether the opinion is from a specialist; and (6) any other
factors that tend to support or contradict the opinion. 20
C.F.R. §§ 404.1527(d)(2), 416.927(d) (2).

1. Dr. Firooz Tabrizi
*6 In determining Plaintiff's mental RFC, the ALJ
discussed the opinion of Firooz Tabrizi, M.D., Plaintiff's
treating psychiatrist. T 19–20. Dr. Tabrizi opined that
Plaintiff had moderate restrictions in her abilities to
understand and remember simple instructions, and to

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carry out simple instructions. T 296. He also opined that
Plaintiff had marked restrictions in her abilities to make
judgments on simple work-related decisions, understand
and remember complex instructions, carry out complex
instructions, and make judgments on complex workrelated decisions. Id.
Dr. Tabrizi also opined that Plaintiff had marked
restrictions in her abilities to interact appropriately with
the public, supervisor(s), and co-workers, and to respond
appropriately to usual work situations and to changes in a
routine work setting. T 297. He also opined that Plaintiff
had a moderate restriction in her ability to respond
appropriately to changes in a routine work setting. Id.
The ALJ afforded this opinion “little weight because
it is not well supported by the medical record.” T
19. However, Dr. Tabrizi's progress notes, which are
replete with his notations that Plaintiff was depressed and
anxious, support the assessment. T 293–95. Moreover,
Dr. Tabrizi specifically stated the factors that supported
his assessment. T 296–97. He indicated that Plaintiff was
anxious and depressed; she worried; her mind raced; her
sleep was poor; she felt stressed; and she cried at times. T
296.
The ALJ also based his determination on a report from
a consultative orthopaedist, Dr. Buckley. T 19 (citing
T 323). The ALJ cited this report for the proposition
that Plaintiff “recently exhibited no depression or
anxiety.” Id. In his report, Dr. Buckley noted that
Plaintiff exhibited no depression or anxiety. T 323.
However, as stressed by Plaintiff, Dr. Buckley performed
an orthopaedic examination, focusing on Plaintiff's
orthopaedic complaints. Dkt. No. 12 at 20. Indeed, his
report states that Plaintiff “presents today for evaluation
with complaints of back and leg pain.” T 323.
The ALJ also explained that Plaintiff's “depression has
responded to medication.” T 20 (citing T 277). He cited
a progress note from St. Elizabeth's Family Practice in
which it is noted that Plaintiff's “response to Prozac
is encouraging.” T 277. However, the next sentence of
the progress note states, “[h]owever, she does seem to
have significant residual depressive symptoms. We will ...
increase her dose of Prozac.” Id. (emphasis added). It
was also noted that she suffered from insomnia and
experienced “underlying anxiety.” Id.

The ALJ also stated that Dr. Tabrizi's opinion was
“inconsistent” with Plaintiff's activities. T 20. The ALJ
pointed out that Plaintiff testified that she drove,
performed activities of daily living, followed news on
the television, shopped, prepared meals, and performed
housework. Id. It is unclear how Dr. Tabrizi's opinion
conflicts with these activities.
*7 In light of the foregoing, the Court is unable to
find that the ALJ's assignment of “little” weight to Dr.
Tabrizi's opinion was supported by substantial evidence.

2. Dr. Zoltan Teglassy
In determining Plaintiff's physical RFC, the ALJ
discussed an opinion rendered by Dr. Teglassy, a treating
physician. T 20. Dr. Teglassy opined that Plaintiff could
never lift ten pounds, but could occasionally carry
ten pounds; Plaintiff could sit for eight hours without
interruption, but could stand or walk for only one hour,
each, without interruption in an eight-hour workday. T
300. He also indicated that Plaintiff was limited in her
abilities to use her hands and feet, and had limitations in
her abilities to perform postural activities. T 301–03.
The ALJ assigned “little” weight to this opinion. T 20. The
ALJ's only explanation was the following: “The extreme
physical limitations set forth by Dr. Teglassy are not
consistent with the relatively mild nature of the claimant's
degenerative disc disease or her daily activities.” Id. (citing
T 204, 241–43, and “testimony”).
However, as previously determined, Plaintiff may meet
Listing 1.04A. Therefore the Court is unable to conclude
that the ALJ's finding that Plaintiff's degenerative disc
disease was “relatively mild” was correct. Moreover, the
ALJ vaguely states that Plaintiff's daily activities are
“inconsistent” with Dr. Teglassy's opinion. T 20. It is
unclear how the activities conflict with the opinion.
In light of the foregoing, the Court is unable to find that
the ALJ's assignment of “little” weight to Dr. Teglassy's
opinion was supported by substantial evidence.

3. Evidence Cited by the ALJ
In addition to challenging the ALJ's evaluation of
her treating sources' opinions, Plaintiff challenges the
evidence cited by the ALJ for support of the physical
RFC determination. 5 Dkt. No. 12. The ALJ stated that

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the RFC determination was supported by, inter alia, Dr.
Shayevitz's opinion and an RFC assessment completed by
an individual from a State agency. T 20.
5

Plaintiff included a section in her brief that at first
blush appears to challenge the evidence cited by the
ALJ for the mental RFC determination. Dkt. No.
12 at 21–22. However, after a review, it appears that
this section, in essence, is a challenge to the ALJ's
step five determination. See id. (citing T 21–step five
determination). Accordingly, the Court will touch
upon this issue in Section (V)(D) of this Report–
Recommendation.

First, Plaintiff points out that Dr. Shayevitz noted that
Plaintiff would have difficulty with repetitive overhead
lifting. Dkt. No. 12 at 19. Indeed, Dr. Shayevitz opined
that Plaintiff would have difficulty lifting overhead. T 206.
The Court also notes that the RFC assessment completed
by the individual from the State agency indicates that
Plaintiff should avoid repetitive overhead activities. T 221.
However, the RFC determination inexplicably fails to
provide for such limitations.
Second, Plaintiff points out that Dr. Shayevitz opined that
Plaintiff “might have difficulty with prolonged hours of
sitting, standing, and walking.” Dkt. No. 12 at 19 (citing
T 206). Plaintiff argues that this finding conflicts with the
RFC determination that she could perform light work
because light work requires standing or walking for six
hours in an eight-hour day, or sitting most of the time.
Dkt. No. 12 at 19. Defendant apparently argues that
there is no conflict because Dr. Shayevitz never specifically
stated that Plaintiff was unable to perform the amount
of standing or walking required for light work, and that
“light work does not require uninterrupted standing and
walking for hours on end.” Dkt. No. 14 at 14–15.
*8 While it is true that standing or walking is performed
off-and-on, and that sitting may occur intermittently
during the remaining time for at least some jobs in the
light work category, 20 C.F.R. §§ 404.1567(b), 416.967(b);
SSR 83–10, 1983 WL 31251, at *5–6 (S.S.A.1983), a job
is also in the light category when it involves sitting most
of the time with some pushing and pulling of arm or leg
controls. 20 C.F.R. §§ 404.1567(b), 416.967(b). The ALJ
did not specify the kind of light work that Plaintiff could
perform. In fact, he stated that Plaintiff had the RFC “for
the full range of light work.” T 21. Thus, Defendant's
argument is unpersuasive because Dr. Shayevitz's finding

that Plaintiff might have difficulty with prolonged hours
of sitting, standing, and walking appears to conflict with
the RFC determination that Plaintiff could perform light
work, which may consist of a job involving sitting most of
the time.
For all of the foregoing reasons, the Court is unable to find
that the RFC determination is supported by substantial
evidence. Accordingly, I recommend that the matter in
this regard be reversed and remanded.

C. Credibility
Plaintiff argues that the ALJ erred in his determination
that Plaintiff was not totally credible. Dkt. No. 12.
Defendant argues that the ALJ properly determined
Plaintiff's credibility. Dkt. No. 14.
“An [ALJ] may properly reject [subjective complaints]
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.’ ”
Lewis v. Apfel, 62 F.Supp.2d 648, 651 (N.D.N.Y.1999)
(quoting Gallardo v. Apfel, Civ. No. 96–9435, 1999 WL
185253, at *5 (S.D.N.Y. Mar.25, 1999)).
To satisfy the substantial evidence rule, the ALJ's
credibility assessment must be based on a two-step
analysis of pertinent evidence in the record. 20 C.F.R.
§ 404.1529; see also Foster v. Callahan, Civ. No. 96–
1858, 1998 WL 106231, at *5 (N.D.N.Y. Mar. 3,
1998). First, the ALJ must determine, based upon the
claimant's objective medical evidence, whether the medical
impairments “could reasonably be expected to produce
the pain or other symptoms alleged ....“ 20 C.F.R.
§ 404.1529(a). Second, if the medical evidence alone
establishes the existence of such impairments, then the
ALJ need only evaluate the intensity, persistence, and
limiting effects of a claimant's symptoms to determine the
extent to which they limit the claimant's capacity to work.
20 C.F.R. § 404.1529(c). When the objective evidence
alone does not substantiate the intensity, persistence,
or limiting effects of the claimant's symptoms, the ALJ
must assess the credibility of the claimant's subjective
complaints by considering the record in light of the
following symptom-related factors: (1) claimant's daily
activities; (2) location, duration, frequency, and intensity
of claimant's symptoms; (3) precipitating and aggravating

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factors; (4) type, dosage, effectiveness, and side effects
of any medication taken to relieve symptoms; (5) other
treatment received to relieve symptoms; (6) any measures
taken by the claimant to relieve symptoms; and (7) any
other factors concerning claimant's functional limitations
and restrictions due to symptoms. 20 C.F.R. § 404.1529(c)
(3). An ALJ's evaluation of a plaintiff's credibility is
entitled to great deference if it is supported by substantial
evidence. Murphy v. Barnhart, No. 00–9621, 2003 WL
470572, at *10 (S.D.N.Y. Jan.21, 2003) (citing Bischof
v. Apfel, 65 F.Supp.2d 140, 147 (E.D.N.Y.1999) and
Bomeisl v. Apfel, Civ. No. 96–9718, 1998 U.S. Dist. LEXIS
11595, at *19, 1998 WL 430547 (S.D.N.Y. July 30, 1998)
(“Furthermore, the ALJ has discretion to evaluate a
claimant's credibility ... and such findings are entitled to
deference because the ALJ had the opportunity to observe
the claimant's testimony and demeanor at the hearing.”)).
*9 In this case, the ALJ found that Plaintiff's subjective
complaints were “only partially credible.” T 20. The ALJ
provided four reasons for this determination. First, the
ALJ stated that Plaintiff's “activities” were “inconsistent
with total disability.” Id. (emphasis added). However, a
“claimant need not demonstrate that he is completely
helpless or totally disabled.” Rivera v. Schweiker, 717 F.2d
719, 722 (2d Cir.1983). Moreover, the mere fact that an
individual is mobile and able to engage in some light tasks
at his home does not alone establish that she is able to
engage in substantial gainful activity. Lecler v. Barnhart,
No. 01 Civ. 8659, 2002 WL 31548600, at *7 (S.D.N.Y.
Nov.14, 2002) (quoting Gold v. Sec. of Health, Ed. &
Welfare, 463 F.2d 38, 41 n. 6 (2d Cir.1972)).
The ALJ pointed to Plaintiff's testimony that she cooks,
cleans, does laundry, shops, takes care of her disabled son,
drives, and could use public transportation if needed. T 20.
However, Plaintiff does laundry only twice per week and
shops only once per month, which the ALJ himself noted.
T 20. Plaintiff also stated that it “took her awhile” to do
housework “because of her back condition, and she had
“a lot of trouble” cleaning, and needed help vacuuming
and cleaning her house. T 114, 116. She also stated that she
had “a lot of trouble” cooking, and prepared only “simple
meals.” T 114, 115. She also stated that her monthly food
shopping took her “awhile because I have to constantly
stop because of the pain.” T 116, 117. With regard to her
son, the only care that she provided to him was giving
him medications when he woke up, and driving him to
medical appointments. T 353, 355. She further stated that

regarding her ability to drive, she drove a total of ten-tofifteen miles in one week if she or her son had medical
appointments. T 355.
Second, the ALJ stated that Plaintiff was only “partially
credible” because the “objective clinical findings and MRI
results do not provide strong support for a disabling
back disorder.” T 20. However, as previously discussed,
Plaintiff may meet Listing 1.04A.
Third, the ALJ stated that Plaintiff was only “partially
credible” because a “specialist recently recommended
conservative treatment, rather than surgery.” T 20 (citing
T 322–26). The specialist, Dr. Buckley, recommended that
Plaintiff attend physical therapy. T 325. He made no
mention of surgery, as the ALJ suggests.
Fourth, the ALJ stated that Plaintiff's “sporadic work
history and limited earnings record do not bolster her
credibility.” T 20. It is unclear how Plaintiff's work history
and earnings record fail to “bolster” her credibility.
Plaintiff indicated that she did not work from 1984 to
1997 because she was “home raising [her] children and
[her] spouse was working.” T 90. From 1998 to 2006, she
consistently worked in only a few different positions. T
106.
In light of the foregoing, the Court is unable to find that
the credibility determination was supported by substantial
evidence. Accordingly, the matter in this regard should be
reversed and remanded.

D. Medical Vocational Guidelines
*10 Plaintiff argues that the ALJ erred by relying
on the Medical–Vocational Guidelines (“the Grids”) to
determine that she was not disabled. Dkt. No. 12 at 24–
25. Specifically, Plaintiff argues that her non-exertional
impairments and pain significantly erode the occupational
base, making application of the Grids inappropriate. Id.
at 25; see id. at 21–22. Defendant argues that the ALJ
properly relied on the Grids. Dkt. No. 14 at 22–24.
Because the Court is recommending remand for several
reasons, the Court recommends remand on this issue
as well. Also, I note that the ALJ made no mention
at this step of whether Plaintiff had any non-exertional
impairments. Upon remand, the ALJ shall obtain the
opinion of a vocational expert if Plaintiff's nonexertional
limitations present significant limitations. See Bapp v.

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Bowen, 802 F.2d 601, 605–06 (2d Cir.1986) (holding that
if a claimant's nonexertional impairments “significantly
limit the range of work permitted by his exertional
limitations” the application of the grids is inappropriate).
WHEREFORE, for the reasons set forth above, it is
hereby
RECOMMENDED, the Commissioner's determination
of no disability be VACATED, and the matter
REMANDED to the agency for further consideration.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections to
the foregoing report. Such objections shall be filed with
the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Servs., 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

All Citations
Not Reported in F.Supp.2d, 2010 WL 2545961

End of Document

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9

Blinkovitch v. Commissioner of Social Security, Slip Copy (2017)
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2017 WL 782979
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Ronald BLINKOVITCH, Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY, Defendant.
3:15-CV-1196 (GTS/WBC)
|
Signed 01/23/2017
Attorneys and Law Firms
LACHMAN, GORTON LAW FIRM, OF COUNSEL:
PETER A. GORTON, ESQ., P.O. Box 89, 1500 East
Main St., Endicott, NY 13761-0089, Counsel for Plaintiff.
U.S. SOCIAL SECURITY ADMIN., OFFICE
OF REG'L GEN. COUNSEL—REGION II, OF
COUNSEL: EMILY M. FISHMAN, ESQ., 26 Federal
Plaza—Room 3904, New York, NY 10278, Counsel for
Defendant.

A. Factual Background
Plaintiff was 32 at the time of the hearing. (T. 47.) He
completed high school. (Id.) Generally, Plaintiff's alleged
disability consists of cervical spine injury, posterior
lumbar fusion, degenerative disc disease, leg pain, dorsal
osteophytes with attendant radiculopathy, lateral recess
foraminal stenosis, anxiety, and depression. (T. 194.) His
alleged disability onset date is April 18, 2012. (T. 189.) His
date last insured is December 31, 2017. (Id.) He previously
worked as an auto mechanic. (T. 21.)

B. Procedural History
On August 17, 2012, Plaintiff applied for a period of
Disability Insurance Benefits (“SSD”) under Title II of
the Social Security Act. (T. 189.) Plaintiff's application
was initially denied, after which he timely requested a
hearing before an Administrative Law Judge (“the ALJ”).
On January 2, 2012 and again on May 15, 2014, Plaintiff
appeared before the ALJ, Marie Greener. (T. 27-42,
43-65.) On July 8, 2014, ALJ Greener issued a written
decision finding Plaintiff not disabled under the Social
Security Act. (T. 10-26.) On September 10, 2015, the
Appeals Council (“AC”) denied Plaintiff's request for
review, rendering the ALJ's decision the final decision of
the Commissioner. (T. 1-6.) Thereafter, Plaintiff timely
sought judicial review in this Court.

REPORT and RECOMMENDATION
William B. Mitchell Carted, U.S. Magistrate Judge
*1 This matter was referred for report and
recommendation by the Honorable Judge Suddaby, Chief
United States District Judge, pursuant to 28 U.S.C. §
636(b) and Local Rule 72.3(d). (Dkt. No. 15.) This case
has proceeded in accordance with General Order 18.
Currently before the Court, in this Social Security action
filed by Ronald Blinkovitch (“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. 11, 14.) For the reasons set
forth below, it is recommended that Plaintiff's motion be
granted, in the extent it seeks remand under Sentence Four
of 42 U.S.C. § 405(g), and Defendant's motion be denied.

I. RELEVANT BACKGROUND

C. The ALJ's Decision
Generally, in her decision, the ALJ made the following
five findings of fact and conclusions of law. (T. 15-22.)
First, the ALJ found that Plaintiff met the insured status
requirements through December 31, 2017 and Plaintiff
had not engaged in substantial gainful activity since April
18, 2012. (T. 15.) Second, the ALJ found that Plaintiff
had the severe impairments of lumbar spine residuals from
fusion and an adjustment disorder. (Id.) Third, the ALJ
found that Plaintiff did not have an impairment that meets
or medically equals one of the listed impairments located
in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 16-18.)
Fourth, the ALJ found that Plaintiff had the residual
functional capacity (“RFC”) to perform light work. (T.
18.) 1 Specifically, the ALJ concluded that Plaintiff could:
lift 20 pounds occasionally and ten pounds frequently; sit
for a total of six hours in an eight-hour workday, and
stand or walk for a total of six hours in an eight-hour
work day. (Id.) The ALJ determined that Plaintiff needed
to alternate sitting and standing, with sitting limited to one

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hour at a time. (Id.) The ALJ determined that Plaintiff
needed to stand for five minute “or so” but he did not
have to leave the workstation or area during the change
of position. (Id.) The ALJ determined that Plaintiff could
stand or walk for an hour at a time, but would then
need to sit for five minutes “or so” before standing or
walking again. (Id.) The ALJ limited Plaintiff to unskilled
work. (Id.) Fifth, the ALJ determined that Plaintiff was
incapable of performing his past relevant work; however,
there were jobs that existed in significant numbers in the
national economy Plaintiff could perform. (T. 21-22.)
1

Light work involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category when
it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing
and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light
work, you must have the ability to do substantially all
of these activities. If someone can do light work, we
determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss
of fine dexterity or inability to sit for long periods of
time. 20 C.F.R. § 404.1567(b).

II. THE PARTIES' BRIEFINGS ON PLAINTIFF'S
MOTION
A. Plaintiff's Arguments
*2 Plaintiff makes five separate arguments in support of
his motion for judgment on the pleadings. First, Plaintiff
argues that the ALJ's finding that Plaintiff could stand or
walk for most of the day as required by a light job was
contrary to the medical evidence in the record. (Dkt. No.
11 at 10-14 [Pl.'s Mem. of Law].) Second, Plaintiff argues
that he cannot do the sitting required by the ALJ's RFC
or sedentary work. (Id. at 14-15.) Third, Plaintiff argues
that the ALJ's credibility determination was insufficient
and erroneous. (Id. at 15-21.) Fourth, Plaintiff argues
that the ALJ did not properly evaluate treating physician
opinions. (Id. at 21-24.) Fifth, and lastly, Plaintiff argues
that the ALJ erred in her step five determination. (Id. at
24-25.)

B. Defendant's Arguments
In response, Defendant makes four arguments. First,
Defendant argues that the ALJ's RFC finding was

supported by substantial evidence. (Dkt. No. 14 at 5-12
[Def.'s Mem. of Law].) Second, Defendant argues that
the ALJ properly weighed the medical source opinion.
(Id. at 12-16.) Third, Defendant argues that the ALJ
properly found Plaintiff's complaints not fully credible.
(Id. at 16-21.) Fourth, and lastly, Defendant argues that
substantial evidence supported the ALJ's step five finding.
(Id. at 21.)

III. 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. See
42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health
& Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather,
the Commissioner's determination will only be reversed
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.”); 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. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d
Cir. 1982).
“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

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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).

Plaintiff's RFC is the most he can still do despite his
limitations. 20 C.F.R. § 404.1545(a)(1). In making an RFC
determination, the ALJ will base her determination on
an assessment of all the relevant evidence in the case
record. See id. Further, Plaintiff's RFC is his maximum
remaining ability to do sustained work activities in an
ordinary setting on a regular and continuing basis. See
id. at § 404.1545(b)-(c). “A regular and continuing basis
means eight hours a day, for five days a week, or an
equivalent work schedule.” Pardee v. Astrue, 631 F. Supp.
2d 200, 210 (N.D.N.Y. 2009).

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. See 20 C.F.R.
§ 404.1520. The Supreme Court has recognized the
validity of this sequential evaluation process. See Bowen
v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987).
The five-step process is as follows:

In formulating an RFC the ALJ will afford weight to
the medical opinion evidence in the record. The relevant
factors considered in determining what weight to afford
an opinion include the length, nature and extent of the
treatment relationship, relevant evidence which supports
the opinion, the consistency of the opinion with the record
as a whole, and the specialization (if any) of the opinion's
source. 20 C.F.R. § 404.1527(c)(1)-(6).

*3 (1) whether the claimant is
currently engaged in substantial
gainful activity; (2) whether the
claimant has a severe impairment
or combination of impairments;
(3) whether the impairment meets
or equals the severity of the
specified impairments in the Listing
of Impairments; (4) based on
a ‘residual functional capacity’
assessment, whether the claimant
can perform any of his or her
past relevant work despite the
impairment; and (5) whether there
are significant numbers of jobs in the
national economy that the claimant
can perform given the claimant's
residual functional capacity, age,
education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).

IV. ANALYSIS
For ease of analysis, Plaintiff arguments will be addressed
out of order and in a consolidated fashion.

The opinion of a treating source will be given controlling
weight if 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.” 20 C.F.R. § 404.1527(c)(2).
The following factors must be considered by the ALJ when
deciding how much weight the treating source opinion
should receive, even if it is not given controlling weight:
“(i) the frequency of examination and the length, nature,
and extent of the treatment relationship; (ii) the evidence
in support of the opinion; (iii) the opinion's consistency
with the record as a whole; and (iv) whether the opinion is
from a specialist.” 20 C.F.R. § 404.1527(c)(2)(i)-(iv). The
ALJ is required to set forth her reasons for the weight
she assigns to the treating physician's opinion. Id., see
also SSR 96-2p, 1996 WL 374188 (July 2, 1996); Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000) (quoting Clark v.
Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998)).
In making her physical RFC determination, the ALJ relied
primarily on the medical examination and source opinion
of consultative examiner, Shannon Gearhart, M.D. and to
a lesser extent the medical opinions provided by Plaintiff's
treating providers, David Kammerman, M.D. and Cori
Pane, F.N.P. (T. 19-20.)

A. The ALJ's RFC Determination

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On October 31, 2012, Dr. Gearhart conducted an internal
medicine examination of Plaintiff and provided a medical
source statement. (T. 376-380.) On examination, Dr.
Gearhart observed that Plaintiff was in no acute distress,
his gait was slightly antalgic, he declined to walk on heels
and toes, his squat was 10% of full, his stance was normal,
he needed no help changing for the exam or getting on
and off the exam table, and he was able to rise from a
chair without difficulty. (T. 378.) Dr. Gearhart observed
that Plaintiff's lumbar spine range of motion was limited
due to pain and because Plaintiff declined to remove his
back brace. (T. 379.) Dr. Gearhart noted that Plaintiff
declined to do a lumbar spinal rotation. (Id.) Dr. Gearhart
observed positive straight leg raise on the right, sitting
only. (Id.) Plaintiff had full strength in his upper and lower
extremities and no sensory deficits. (Id.)
*4 In a medical source statement, Dr. Gearhart stated
that Plaintiff had “marked restriction for heavy lifting,
carrying, pushing, and pulling.” (T. 380.) She further
opined that Plaintiff had “moderate to marked restrictions
for prolonged walking and standing.” (Id.) Lastly, she
opined that Plaintiff had “moderate restrictions for
squatting, kneeling, climbing, going up and down stairs,
and prolonged sitting.” (Id.)
On October 1, 2013, Nurse Pane completed a
“Questionnaire.” (T. 482-483.) Nurse Pane was a nurse
practitioner with Comprehensive Pain Relief. (T. 442.)
In the questionnaire, Nurse Pane indicated that Plaintiff
could sit for approximately four hours out of an eight hour
workday. (T. 483.) She opined that Plaintiff could stand/
walk for approximately four hours out of an eight hour
workday. (Id.) She indicated that Plaintiff should change
positions approximately every 30 minutes. (Id.)
On November 8, 2013, Dr. Kammerman, also
with Comprehensive Pain Relief, completed a
“Questionnaire.” (T.493-494.) Dr. Kammerman opined
that Plaintiff could sit for approximately two hours out of
an eight hour workday. (T. 494.) He opined that Plaintiff
could stand/walk for approximately two hours out of
an eight hour workday. (Id.) He indicated that Plaintiff
should change positions approximately every hour. (Id.)
Plaintiff testified at the hearing that he could sit for about
forty minutes and stand for about thirty minutes. (T. 51.)
In his disability report, Plaintiff indicated that he could

stand “no more than 20 minutes” and sit “no more than
thirty minutes.” (T. 216-217.)
Plaintiff argues that the ALJ erred in her evaluation
of treating source opinions because the ALJ failed to
acknowledge that both providers were specialist and had
an extensive treatment relationship with Plaintiff, and
because both sources provided uncontradicted opinions.
(Dkt. No. 11 at 21-24 [Pl.'s Mem. of Law].)
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.
Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013)
(plaintiff challenged ALJ's failure to review explicitly
each factor provided for in 20 C.F.R. § 404.1527(c), the
Court held that “no such slavish recitation of each and
every factor [was required] where the ALJ's reasoning
and adherence to the regulation [was] clear”). Here, the
ALJ's reasoning and adherence to the Regulations was
clear. Although the ALJ did not specifically refer to Dr.
Kammerman or Nurse Pane as “treating providers,” or
specifically note how often they treated Plaintiff, her
decision cites to the numerous treatment records and
medical source statements provided by both providers.
Further, in assessing the opinions of Dr. Kammerman
and Nurse Pane, the ALJ provided specific reasoning for
the weight she afforded their opinions. (T. 20.) Therefore,
the ALJ did not commit legal error in failing to explicitly
acknowledge that Dr. Kammerman or Nurse Pane were
treating sources or their length of treatment because her
reasoning and adherence to the Regulations was clear.
Plaintiff argues that the ALJ's RFC determination, that
Plaintiff could stand/walk for six hours and sit for six
hours in a workday, was not supported by medical
evidence in the record. (Dkt. No. 11 at 13-15 [Pl.'s Mem.
of Law].)
Light work requires “a good deal of walking or standing.”
20 C.F.R. § 404.1567(b); see also SSR 83-10 (S.S.A. 1983)
(“the full range of light work requires standing or walking,
off and on, for a total of approximately 6 hours of an 8hour workday”); see also SSR 83-12 (S.S.A. 1983) (most
light work requires “prolonged standing or walking”).
Here, substantial evidence did not support the ALJ's RFC
determination that Plaintiff could stand or walk, for an
hour at a time, six hours in an eight hour work day. (T. 18.)
Further, the ALJ's decision failed to provide an adequate

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analysis of how the evidence in the record supported her
determination that Plaintiff could stand or walk for six
hours with a limitation of one hour at a time.
*5 The medical opinions in the record indicated that
Plaintiff had greater restriction on his ability to stand
and walk than provided for in the RFC. Dr. Gearhart
opined that Plaintiff had “moderate to marked restrictions
for prolonged walking and standing.” (T. 380.) To be
sure, a “moderate” limitation would not necessarily
preclude the ability to perform the walking and standing
requirements of light work; however, a “moderate to
marked” limitation does not support the determination
that Plaintiff can perform the requirements.
Further, the opinions of Plaintiff's treating providers do
not support the contention that Plaintiff could perform
the walking or standing requirements of light work. Dr.
Kammerman opined Plaintiff could stand or walk for
approximately two hours out of an eight hour work day.
(T. 494.) Nurse Pane opined Plaintiff could stand or walk
for approximately four hours in an eight hour day. (T.
483.) Plaintiff testified that he could not stand more than
“about half an hour” and could not “really walk too far
without having to take a rest.” (T. 51.) Plaintiff stated in
his Function Report that he could stand for 20 minutes
and walk ten to 20 minutes. (T. 216.) Therefore, neither the
medical evidence in the record, not Plaintiff's testimony,
supported the conclusion that Plaintiff could stand or
walk for “prolonged” periods.
The ALJ's determination failed to provide an analysis of
how the record supported the determination that Plaintiff
could stand/walk for six hours in a workday. See Otts
v. Colvin, No. 15-CV-6731, 2016 WL 6677192, at *4
(W.D.N.Y. Nov. 14, 2016) (remanding where ALJ failed
to explain how consultative examiner's “moderate to
marked” restriction for lifting, carry, pushing, and pulling
supported an RFC to perform light work). Therefore,
remand is recommended for a proper analysis of Plaintiff's
ability to stand and walk.
The ALJ also determined that Plaintiff could sit, for
one hour increments, for a total of six hours in an
eight hour workday. (T. 18.) Substantial evidence did not
support this conclusion. Although Dr. Gearhart opined
that Plaintiff had a “moderate” restriction for sitting,
treating providers indicated Plaintiff could sit for two
or four hours in a work day. (T. 483, 494.) Plaintiff

testified that he could sit for about forty minutes. (T.
51.) Elsewhere Plaintiff indicated he could sit for thirty
minutes. (T. 217.) Again, the medical evidence indicated
that Plaintiff had greater restriction in his ability to sit
for prolonged periods than accounted for by the ALJ. In
addition, the ALJ failed to explain how she arrived at
the conclusion that Plaintiff could sit for six hours in a
workday based on Dr. Gearhart's opinion that he had a
moderate restriction for sitting.
To be sure, although an “ALJ's conclusion may not
perfectly correspond with any of the opinions of medical
sources cited in [her] decision, [she] was entitled to weigh
all of the evidence available to make an RFC finding
that was consistent with the record as a whole.” Matta
v. Astrue, 508 Fed.Appx. 53, 56 (2d Cir. 2013). Further,
“it is not per se error for an ALJ to make the RFC
determination absent a medical opinion ..., [and] remand
is not necessary where ‘the record contains sufficient
evidence from which an ALJ can assess the petitioner's
residual functional capacity.’ ” Lewis v. Colvin, No. 13CV-1072S, 2014 WL 6609637, at *6 (W.D.N.Y. Nov.
20, 2014) (quoting Tankisi v. Comm'r of Soc. Sec., 521
Fed.Appx. 29, 34 (2d Cir. 2013)).
The “regulatory language provides ample flexibility for
the ALJ to consider a broad array of evidence as ‘medical
opinions.’ ” Sickles v. Colvin, No. 12-CV-774, 2014
WL 795978, at *4 (N.D.N.Y. Feb. 27, 2014) (citation
omitted). Plaintiff's testimony and the treatment notes
may constitute “relevant evidence [that] a reasonable
mind might accept as adequate to support” the RFC as
determined by an ALJ. Johnson v. Colvin, No. 15-3483CV, 2016 WL 5539890, at *2 (2d Cir. Sept. 29, 2016)
(quoting Richardson, 402 U.S. at 401); see also Scouten
v. Colvin, No. 15-CV-76S, 2016 WL 2640350, at *4
(W.D.N.Y. May 10, 2016) (“[t]here is no error where ...
an ALJ bases his RFC on Plaintiff's own testimony”
together with relevant medical evidence). Here, however,
the record did not contain sufficient evidence to support
the ALJ's conclusion that Plaintiff could stand or walk per
the requirements of light work, or sit for six hours, even if
such postures were limited to an hour at a time.
*6 Defendant argues that the ALJ's RFC determination
accounted for Plaintiff's restrictions for standing, walking,
and sitting because the RFC stated that Plaintiff could
not perform a position for more than an hour at a
time. (Dkt. No. 14 at 7 [Def.'s Mem. of Law].) This

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Court may not “create post-hoc rationalizations to
explain the Commissioner's treatment of evidence when
that treatment is not apparent from the Commissioner's
decision itself.” Martinbeault v. Astrue, 2009 WL 5030789,
*5 (N.D.N.Y. Dec. 14, 2009) (citing Grogan v. Barnhart,
399 F.3d 1257, 1263 (10th Cir. 2005)); see also Hall
v. Colvin, 37 F. Supp. 3d 614, 626 (W.D.N.Y. 2014)
(“Even if accurate, this is a post hoc rationalization that
is not apparent from the face of the ALJ's decision.”); see
also Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (a
reviewing court may not accept appellate counsel's post
hoc rationalizations for agency action); see also Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999). Although the ALJ
concluded that Plaintiff could stand, walk, and sit, for an
hour at a time, it is not apparent from the ALJ's decision
how she arrived at this conclusion.
In addition, the ALJ appears to have misread the objective
medical evidence in the record. The ALJ relied on this
misreading in weighing opinion evidence and formulating
her RFC determination.
To be sure, as indicated by the ALJ, the MRI performed
on August 30, 2013 indicated “no disc herniation, central
or foraminal narrowing at L1-L2 through L4-L4.” (T.
463.) However, the ALJ either overlooked or ignored
the MRI results indicating “mild abnormal hypointense
T1 signal along the ventral aspect of the spinal canal
which appear[ed] to abut the left more than right S1
nerve root” at L5-S1. (T. 463.) The results also indicated
minimal hypointense T1 signal along the posterior aspect
of the spinal canal that may represent “postoperative
granulation tissue.” (Id.) This oversite was not harmless,
because Plaintiff's treating providers relied on these results
in formulating treatment and medical opinions. Plaintiff's
neurologist, Khalid Sethi, reviewed the MRI on October
16, 2013, and indicated that he was “not impressed with
a robust incorporation” and Plaintiff's “symptoms may
be partially referable to micromotion.” (T. 495.) Both Dr.
Kammerman and Nurse Pane indicated in their medical
source statements that their diagnoses were supported by
the MRI which showed granulation tissue abutting the S1
nerve root. (T. 482, 493.)
The ALJ reasoned that Dr. Kammerman's opinion, and
Nurse Pane's opinion, were undermined by an MRI
which showed “no disc herniation, central or foraminal
narrowing.” (T. 20.) The ALJ relied, in part, on the MRI
findings as support for Dr. Gearhart's opinion. (T. 19.)

The ALJ's reliance on a misreading of the MRI findings
compounded her erroneous RFC determination.
In sum, the record did not contain sufficient evidence
to support the ALJ's determination that Plaintiff could
perform the standing or walking requirements of light
work, or that Plaintiff could sit for six hours in a work
day, even if Plaintiff was limited to those positions for an
hour at a time. The ALJ's decision provided no analysis
of how she reached the determination that Plaintiff
could perform positional requirements of light work for
an hour at a time. Further, the ALJ appears to have
misread or misunderstood the objective medical evidence.
Therefore, remand is recommended for a new physical
RFC determination.
Plaintiff also argues that there was no adverse medical
opinion to Dr. Kammerman's statement that Plaintiff
would be off task 33% of the day and absent more than
four days a month, and as such the ALJ was required to
accept the limitations. (Dkt. No. 11 at 23-24 [Pl.'s Mem. of
Law].) However, the ALJ's conclusion that Plaintiff could
sustain attention and concentration for unskilled work
was supported by the medical opinion of consultative
examiner, Cheyrl Loomis, Ph.D.
*7 Dr. Loomis concluded, based on her examination of
Plaintiff, that he was capable of following, understanding,
and performing simple tasks independently. (T. 373.)
She concluded that Plaintiff could maintain attention
and concentration, maintain a schedule, and learn new
tasks. (Id.) She concluded that Plaintiff could make
appropriate decision, relate adequately with others, and
appropriately deal with stress. (T. 374.) Therefore, the
ALJ's determination that Plaintiff retained the ability to
perform unskilled work was supported by the opinion of
Dr. Loomis.

B. The ALJ's Credibility Determination
A plaintiff's allegations of pain and functional limitations
are “entitled to great weight where ... it is supported by
objective medical evidence.” Rockwood v. Astrue, 614 F.
Supp. 2d 252, 270 (N.D.N.Y. 2009) (quoting Simmons
v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 (2d Cir. 1992)).
However, the ALJ “is not required to accept [a plaintiff's]
subjective complaints without question; he may exercise
discretion in weighing the credibility of the [plaintiff's]
testimony in light of the other evidence in the record.”
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing

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Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)).
“When rejecting subjective complaints, 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.” Rockwood, 614 F. Supp. 2d at 270.
The ALJ must employ a two-step analysis to evaluate
the claimant's reported symptoms. See 20 C.F.R. §
404.1529. First, the ALJ must determine whether, based
on the objective medical evidence, a plaintiff's medical
impairments “could reasonably be expected to produce
the pain or other symptoms alleged.” 20 C.F.R. §
404.1529(a). Second, if the medical evidence establishes
the existence of such impairments, the ALJ must evaluate
the intensity, persistence, and limiting effects of those
symptoms to determine the extent to which the symptoms
limit the claimant's ability to do work. See id.
At this second step, the ALJ must consider: (1) the
claimant's daily activities; (2) the location, duration,
frequency, and intensity of the claimant's pain or other
symptoms; (3) precipitating and aggravating factors; (4)
the type, dosage, effectiveness, and side effects of any
medication the claimant takes or has taken to relieve his
pain or other symptoms; (5) other treatment the claimant
receives or has received to relieve his pain or other
symptoms; (6) any measures that the claimant takes or has
taken to relieve his pain or other symptoms; and (7) any
other factors concerning claimant's functional limitations
and restrictions due to his pain or other symptoms. 20
C.F.R. § 404.1529(c)(3)(i)-(vii).
Here, the ALJ determined that Plaintiff's medically
determinable impairments could reasonably be expected
to cause his alleged symptoms, but his statements
concerning the intensity, persistence and limiting effects
of his symptoms were not credible. (T. 19.) In making her
credibility determination the ALJ first relied on Plaintiff's
statement that he applied for benefits because he could not
return to his past work as a mechanic. (T. 20.) Second,
the ALJ stated that clinical findings and testing did not
support his allegations. (Id.) Third, the ALJ stated that
Plaintiff's statements were not fully credible because he
claimed his back did not fully fuse; however, the record
did not support that statement. (Id.) And lastly, the ALJ
took into consideration that Plaintiff had previously filed
for benefits and went back to work after he was denied.
(Id.)

*8 Plaintiff argues that the ALJ erred in her credibility
determination because the ALJ failed to discuss the
relevant factors outlined in the Regulations and the
reasons the ALJ relied on in making her determination
had no bearing on credibility. (Dkt. No. 11 at 17-21 [Pl.'s
Mem. of Law].) For the reasons stated herein, the ALJ's
credibility determination was the product of legal error
and not supported by substantial evidence.
To be sure, the ALJ is not required to make a “slavish”
recitation of each and every factor in the Regulation where
the ALJ's reasoning and adherence to the Regulations is
clear. See Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir.
2004). However, in the instant case, the ALJ's reasoning
and adherence to the Regulations is not clear. The ALJ's
discussion makes no mention or reference to any factor
outlined in 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)
(3)(i)-(vii).
In her credibility determination the ALJ found Plaintiff to
be less credible because he was not familiar with the legal
standard of obtaining Social Security Disability benefits.
(T. 20.) The ALJ relied on a notation made by a physical
therapist in September of 2012. (T. 422.) The statement
was not made by the Plaintiff at the hearing or in his
application. Even if Plaintiff misunderstood the disability
standard, that does not equate with Plaintiff's statements
being less credible. Second, as stated herein, the ALJ
failed to acknowledge the MRI finding of nerve root
abutment. Therefore, the ALJ erred in relying the MRI
to undermine Plaintiff's credibility. Further, the ALJ's
erroneously concluded that Plaintiff incorrectly stated
that his back had not fully fused and was therefore not
credible. (T. 20.) Plaintiff's treating source did indicate,
as Plaintiff's alleged, his back had not fully fused. (T.
390-391.) The ALJ also selectively relied on one notation
that Plaintiff's pain increase because he had been more
active. (T. 20, referring to T. 524.) Outside of this one
notation, the record indicated that Plaintiff complained
his symptoms were aggravated by “daily activities.” (see
generally T. 346-370, T. 401-453.)
Because the ALJ made no mention of the factors outlined
in the Regulations in making her credibility determination
and the ALJ's adherence to the Regulations was not clear
from her determination, remand is recommended for a
proper credibility analysis.

C. The ALJ's Step Five Determination
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Because remand is recommended for a physical RFC
determination and credibility determination, remand is
recommended for a new analysis at step five.
ACCORDINGLY, based on the findings above, it is
RECOMMENDED, that the Plaintiff's motion for
judgment on the pleadings be GRANTED, and the
Commissioner's determination be DENIED, and the
matter be REMANDED for further proceedings under
sentence four of 42 U.S.C. § 405(g) and consistent with this
report.

Pursuant to 28 U.S.C. § 636 (b)(1) and Local Rule 72.1(c),
the parties have FOURTEEN (14) DAYS within which
to file written objections to the foregoing report. Any
objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.
1993) (citing Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636 (b)
(1); Fed. R. Civ. P. 6(a), 6(e), 72.

All Citations
Slip Copy, 2017 WL 782979

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2017 WL 782901
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Ronald BLINKOVITCH, Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY, Defendant.
3:15-CV-1196 (GTS/WBC)
|
Signed 02/28/2017
Attorneys and Law Firms
LACHMAN & GORTON, OF COUNSEL: PETER A.
GORTON, ESQ., P.O. Box 89, 1500 East Main Street,
Endicott, New York 13761, Counsel for Plaintiff.
SOCIAL SECURITY ADMINISTRATION, OFFICE
OF REG'L GEN. COUNSEL–REGION II, OF
COUNSEL: EMILY M. FISHMAN, ESQ., 26 Federal
Plaza, Room 3904, New York, New York 10278, Counsel
for Defendant.

DECISION and ORDER
HON. GLENN T. SUDDABY, Chief United States
District Judge
*1 Currently before the Court, in this Social Security
action filed by Ronald Blinkovitch (“Plaintiff”) against
the Commissioner of Social Security (“Defendant” or
“the Commissioner”), is the Report-Recommendation
of United States Magistrate Judge William B. Mitchell
Carter recommending that Plaintiff's motion for judgment
on the pleadings be granted, Defendant's motion for
judgment on the pleadings be denied, the Commissioner's
decision denying Plaintiff Social Security benefits
be reversed, and this matter be remanded to the
Commissioner of Social Security for further proceedings
under sentence four of 42 U.S.C. § 405(g). (Dkt. No. 16.)
Objections to the Report-Recommendation have not been
filed and the time in which to do so has expired. (See
generally Docket Sheet.)

After carefully reviewing all of the papers in this action,
including Magistrate Judge Carter's thorough ReportRecommendation, the Court can find no clear error in
the Report-Recommendation. 1 Magistrate Judge Carter
employed the proper legal standards, accurately recited
the facts, and correctly applied the law to those facts.
(Dkt. No. 16.) As a result, the Report-Recommendation
is accepted and adopted in its entirety; Plaintiff's motion
for judgment on the pleadings is granted; Defendant's
motion for judgment on the pleadings is denied; the
Commissioner's decision denying disability insurance
benefits is reversed; and this matter is remanded to the
Commissioner of Social Security for further proceedings
under sentence four of 42 U.S.C. § 405(g).
1

When no objection is made to a reportrecommendation, the Court subjects that reportrecommendation to only a “clear error” review. Fed.
R. Civ. P. 72(b), Advisory Committee Notes: 1983
Addition. When performing such a clear error review,
“the court need only satisfy itself that there is no clear
error on the face of the record in order to accept
the recommendation.” Id.; see also Batista v. Walker,
94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt
those sections of [a magistrate judge's] report to
which no specific objection is made, so long as
those sections are not facially erroneous.”) (internal
quotation marks omitted).

ACCORDINGLY, it is
ORDERED that Magistrate Judge Carter's ReportRecommendation (Dkt. No. 16) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Plaintiff's motion for judgment on the
pleadings (Dkt. No. 11) is GRANTED, Defendant's
motion for judgment on the pleadings (Dkt. No. 14) is
DENIED, the Commissioner's decision denying Plaintiff
Social Security benefits is REVERSED, and this matter
is REMANDED to the Commissioner of Social Security
for further proceedings under sentence four of 42 U.S.C.
§ 405(g).

All Citations
Slip Copy, 2017 WL 782901

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2

TITLES II AND XVI:II AND XVI: CONSIDERING OPINIONS..., SSR 06-03P (2006)

SSR 06-03P (S.S.A.), 2006 WL 2329939
Social Security Ruling
TITLES II AND XVI:II AND XVI: CONSIDERING OPINIONS AND OTHER EVIDENCE FROM SOURCES
WHO ARE NOT “ACCEPTABLE MEDICAL SOURCES” IN DISABILITY CLAIMS; CONSIDERING
DECISIONS ON DISABILITY BY OTHER GOVERNMENTAL AND NONGOVERNMENTAL AGENCIES
SSR 06-03p
August 9, 2006
Policy Interpretation Ruling
*1 PURPOSE: To clarify how we consider opinions from sources who are not “acceptable medical sources” and how
we consider decisions by other governmental and nongovernmental agencies on the issue of disability or blindness.

CITATIONS: Sections 205(a), 216(i), 221, 223(d), 1614(a)(3), 1631(d), and 1633 of the Social Security Act (the
Act), as amended; Regulations No. 4, subpart P, sections 404.1502, 404.1503, 404.1504, 404.1512(b), 404.1513(a),
(d), and (e), 404.1520(a), 404.1527, and subpart Q, section 404.1613, and Regulations No. 16, subpart I, sections
416.902, 416.903, 416.904, 416.912(b), 416.913(a), (d), and (e), 416.920(a), 416.927 and subpart J, section 416.1013.

Introduction: We use medical and other evidence to reach conclusions about an individual's impairment(s) to make a
disability determination or decision as described in 20 CFR 404.1512, 404.1513, 416.912 and 416.913. In accordance
with sections 223(d)(5) and 1614(a)(3)(H) of the Act, when we make a determination or decision of disability, we will
consider all of the available evidence in the individual's case record. This includes, but is not limited to, objective medical
evidence; other evidence from medical sources, including their opinions; statements by the individual and others about
the impairment(s) and how it affects the individual's functioning; information from other “non-medical sources” and
decisions by other governmental and nongovernmental agencies about whether an individual is disabled or blind. See
20 CFR 404. 1512 and 416.912.

Medical Sources
The term “medical sources” refers to both “acceptable medical sources” and other health care providers who are not
“acceptable medical sources.” See 20 CFR 404. 1502 and 416.902.
Under our current regulations, “acceptable medical sources” are:
• Licensed physicians (medical or osteopathic doctors);
• Licensed or certified psychologists. Included are school psychologists, or other licensed or certified individuals with
other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing
mental retardation, learning disabilities, and borderline intellectual functioning only;
• Licensed optometrists, for the measurement of visual acuity and visual fields (for claims under title II, we may need a
report from a physician to determine other aspects of eye disease);
• Licensed podiatrists, for purposes of establishing impairments of the foot, or foot and ankle only, depending on whether
the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle; and

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• Qualified speech-language pathologists, for purposes of establishing speech or language impairments only.

*2 See 20 CFR 404.1513 (a) and 416.913(a).

Medical Source Distinction
The distinction between “acceptable medical sources” and other health care providers who are not “acceptable medical
sources” is necessary for three reasons. First, we need evidence from “acceptable medical sources” to establish the
existence of a medically determinable impairment. See 20 CFR 404.1513(a) and 416.913(a). Second, only “acceptable
medical sources” can give us medical opinions. See 20 CFR 404.1527(a)(2) and 416.927(a)(2). Third, only “acceptable
medical sources” can be considered treating sources, as defined in 20 CFR 404.1502 and 416.902, whose medical opinions
may be entitled to controlling weight. See 20 CFR 404.1527(d) and 416.927(d).
Making a distinction between “acceptable medical sources” and medical sources who are not “acceptable medical
sources” facilitates the application of our rules on establishing the existence of an impairment, evaluating medical
opinions, and who can be considered a treating source.

”Other Sources”
In addition to evidence from “acceptable medical sources,” we may use evidence from “other sources,” as defined in 20
CFR 404.1513(d) and 416.913(d), to show the severity of the individual's impairment(s) and how it affects the individual's
ability to function. These sources include, but are not limited to:
• Medical sources who are not “acceptable medical sources,” such as nurse practitioners, physician assistants, licensed
clinical social workers, naturopaths, chiropractors, audiologists, and therapists; and
• “Non-medical Sources” including, but not limited to:
• Educational personnel, such as school teachers, counselors, early intervention team members, developmental center
workers, and daycare center workers;
• Public and private social welfare agency personnel, rehabilitation counselors; and
• Spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, clergy, and employers.

Information from these “other sources” cannot establish the existence of a medically determinable impairment. Instead,
there must be evidence from an “acceptable medical source” for this purpose. However, information from such “other
sources” may be based on special knowledge of the individual and may provide insight into the severity of the
impairment(s) and how it affects the individual's ability to function.

Evaluating Opinions and Other Evidence
Sections 404.1527 and 416.927 of our regulations provide general guidance for evaluating all relevant evidence in a case
record and provide detailed rules for evaluating medical opinions from “acceptable medical sources.” 1 Medical opinions
are statements from physicians and psychologists or other “acceptable medical sources” that reflect judgments about the
nature and severity of an individual's impairment(s), including symptoms, diagnosis and prognosis, what the individual
can still do despite the impairment(s), and physical and mental restrictions. See 20 CFR 40 4.1527(a)(2) and 416.927(a)

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(2). The regulations set out factors we consider in weighing medical opinions from treating sources, nontreating sources,
and nonexamining sources. See 20 CFR 404.1527(d) and 416.927(d). These factors include:
*3 • The examining relationship between the individual and the “acceptable medical source”;
• The treatment relationship between the individual and a treating source, including its length, nature, and extent as well
as frequency of examination;
• The degree to which the “acceptable medical source” presents an explanation and relevant evidence to support an
opinion, particularly medical signs and laboratory findings;
• How consistent the medical opinion is with the record as a whole;
• Whether the opinion is from an “acceptable medical source” who is a specialist and is about medical issues related to
his or her area of specialty; and
• Any other factors brought to our attention, or of which we are aware, which tend to support or contradict the
opinion. For example, the amount of understanding of our disability programs and their evidentiary requirements that an
“acceptable medical source” has, regardless of the source of that understanding, and the extent to which an “acceptable
medical source” is familiar with the other information in the case record, are all relevant factors that we will consider
in deciding the weight to give to a medical opinion.

In addition, these regulations provide that the final responsibility for deciding certain issues, such as whether an
individual is disabled under the Act, is reserved to the Commissioner.
These regulations provide specific criteria for evaluating medical opinions from “acceptable medical sources”; however,
they do not explicitly address how to consider relevant opinions and other evidence from “other sources” listed in
20 CFR 404.1513(d) and 416.913(d). With the growth of managed health care in recent years and the emphasis on
containing medical costs, medical sources who are not “acceptable medical sources,” such as nurse practitioners,
physician assistants, and licensed clinical social workers, have increasingly assumed a greater percentage of the treatment
and evaluation functions previously handled primarily by physicians and psychologists. Opinions from these medical
sources, who are not technically deemed “acceptable medical sources” under our rules, are important and should be
evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in
the file.
“Non-medical sources” who have had contact with the individual in their professional capacity, such as teachers, school
counselors, and social welfare agency personnel who are not health care providers, are also valuable sources of evidence
for assessing impairment severity and functioning. Often, these sources have close contact with the individuals and have
personal knowledge and expertise to make judgments about their impairment(s), activities, and level of functioning over
a period of time. Consistent with 20 CFR 404.1513(d)(4) and 416.913(d)(4), we also consider evidence provided by other
“non-medical sources” such as spouses, other relatives, friends, employers, and neighbors.
*4 Although 20 CFR 404. 1527 and 416.927 do not address explicitly how to evaluate evidence (including opinions)
from “other sources,” they do require consideration of such evidence when evaluating an “acceptable medical source's”
opinion. For example, SSA's regulations include a provision that requires adjudicators to consider any other factors
brought to our attention, or of which we are aware, which tend to support or contradict a medical opinion. Information,
including opinions, from “other sources”—both medical sources and “non-medical sources”—can be important in this
regard. In addition, and as already noted, the Act requires us to consider all of the available evidence in the individual's
case record in every case.

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Accordingly, this ruling clarifies how we consider opinions and other evidence from medical sources who are not
“acceptable medical sources” and from “non-medical sources,” such as teachers, school counselors, social workers,
and others who have seen the individual in their professional capacity, as well as evidence from employers, spouses,
relatives, and friends. This ruling also explains how we consider decisions on disability made by other governmental and
nongovernmental agencies.

Policy Interpretation

I. Evidence From “Other Sources”
As set forth in regulations at 20 CFR 404.1527(b) and 416.927(b), we consider all relevant evidence in the case record
when we make a determination or decision about whether the individual is disabled. Evidence includes, but is not limited
to, opinion evidence from “acceptable medical sources,” medical sources who are not “acceptable medical sources,” and
“non-medical sources” who have seen the individual in their professional capacity. The weight to which such evidence
may be entitled will vary according to the particular facts of the case, the source of the opinion, including that source's
qualifications, the issue(s) that the opinion is about, and many other factors, as described below.

Factors for Considering Opinion Evidence
Although the factors in 20 CFR 404.1527(d) and 416.927(d) explicitly apply only to the evaluation of medical opinions
from “acceptable medical sources,” these same factors can be applied to opinion evidence from “other sources.” These
factors represent basic principles that apply to the consideration of all opinions from medical sources who are not
“acceptable medical sources” as well as from “other sources,” such as teachers and school counselors, who have seen the
individual in their professional capacity. These factors include:
• How long the source has known and how frequently the source has seen the individual;
• How consistent the opinion is with other evidence;
• The degree to which the source presents relevant evidence to support an opinion;
• How well the source explains the opinion;
• Whether the source has a specialty or area of expertise related to the individual's impairment(s); and
*5 • Any other factors that tend to support or refute the opinion.

Opinions From Medical Sources Who Are Not “Acceptable Medical Sources”
Opinions from “other medical sources” may reflect the source's judgment about some of the same issues addressed in
medical opinions from “acceptable medical sources,” including symptoms, diagnosis and prognosis, what the individual
can still do despite the impairment(s), and physical and mental restrictions.
Not every factor for weighing opinion evidence will apply in every case. The evaluation of an opinion from a medical
source who is not an “acceptable medical source” depends on the particular facts in each case. Each case must be
adjudicated on its own merits based on a consideration of the probative value of the opinions and a weighing of all the
evidence in that particular case.

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The fact that a medical opinion is from an “acceptable medical source” is a factor that may justify giving that opinion
greater weight than an opinion from a medical source who is not an “acceptable medical source” because, as we previously
indicated in the preamble to our regulations at 65 FR 34955 , dated June 1, 2000, “acceptable medical sources” “are the
most qualified health care professionals.” However, depending on the particular facts in a case, and after applying the
factors for weighing opinion evidence, an opinion from a medical source who is not an “acceptable medical source” may
outweigh the opinion of an “acceptable medical source,” including the medical opinion of a treating source. For example,
it may be appropriate to give more weight to the opinion of a medical source who is not an “acceptable medical source”
if he or she has seen the individual more often than the treating source and has provided better supporting evidence
and a better explanation for his or her opinion. Giving more weight to the opinion from a medical source who is not
an “acceptable medical source” than to the opinion from a treating source does not conflict with the treating source
rules in 20 CFR 404.1527(d)(2) and 416.927(d)(2) and SSR 96-2p, “Titles II and XVI: Giving Controlling Weight To
Treating Source Medical Opinions.”

Evidence From “Non-Medical Sources”
Opinions from “non-medical sources” who have seen the individual in their professional capacity should be evaluated
by using the applicable factors listed above in the section “Factors for Weighing Opinion Evidence.” Not every factor
for weighing opinion evidence will apply in every case. The evaluation of an opinion from a “non-medical source” who
has seen the individual in his or her professional capacity depends on the particular facts in each case. Each case must
be adjudicated on its own merits based on a consideration of the probative value of the opinions and a weighing of all
the evidence in that particular case.
For opinions from sources such as teachers, counselors, and social workers who are not medical sources, and other
non-medical professionals, it would be appropriate to consider such factors as the nature and extent of the relationship
between the source and the individual, the source's qualifications, the source's area of specialty or expertise, the degree
to which the source presents relevant evidence to support his or her opinion, whether the opinion is consistent with other
evidence, and any other factors that tend to support or refute the opinion.
*6 An opinion from a “non-medical source” who has seen the claimant in his or her professional capacity may, under
certain circumstances, properly be determined to outweigh the opinion from a medical source, including a treating source.
For example, this could occur if the “non-medical source” has seen the individual more often and has greater knowledge
of the individual's functioning over time and if the “non-medical source's” opinion has better supporting evidence and
is more consistent with the evidence as a whole.
In considering evidence from “non-medical sources” who have not seen the individual in a professional capacity in
connection with their impairments, such as spouses, parents, friends, and neighbors, it would be appropriate to consider
such factors as the nature and extent of the relationship, whether the evidence is consistent with other evidence, and any
other factors that tend to support or refute the evidence.

Explanation of the Consideration Given to Opinions From “Other Sources”
Since there is a requirement to consider all relevant evidence in an individual's case record, the case record should
reflect the consideration of opinions from medical sources who are not “acceptable medical sources” and from “nonmedical sources” who have seen the claimant in their professional capacity. Although there is a distinction between
what an adjudicator must consider and what the adjudicator must explain in the disability determination or decision,
the adjudicator generally should explain the weight given to opinions from these “other sources,” or otherwise ensure
that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow
the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case. In addition, when an
adjudicator determines that an opinion from such a source is entitled to greater weight than a medical opinion from a

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treating source, the adjudicator must explain the reasons in the notice of decision in hearing cases and in the notice of
determination (that is, in the personalized disability notice) at the initial and reconsideration levels, if the determination
is less than fully favorable.

II. Decisions on Disability by Other Governmental and Nongovernmental Agencies
The regulations at 20 CFR 404.1504 and 416.904 provide that:
[a] decision by any nongovernmental agency or any other governmental agency about whether you are disabled or blind
is based on its rules and is not our decision about whether you are disabled or blind. We must make a disability or
blindness determination based on social security law. Therefore, a determination made by another agency [e.g., Workers'
Compensation, the Department of Veterans Affairs, or an insurance company] that you are disabled or blind is not
binding on us.
Under sections 221 and 1633 of the Act, only a State agency or the Commissioner can make a determination based on
Social Security law that you are blind or disabled. Our regulations at 20 CFR 404.1527(e) and 416.927(e) make clear
that the final responsibility for deciding certain issues, such as whether you are disabled, is reserved to the Commissioner
(see also SSR 96-5p, “Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner”). However,
we are required to evaluate all the evidence in the case record that may have a bearing on our determination or decision
of disability, including decisions by other governmental and nongovernmental agencies (20 CFR 4 04.1512(b)(5) and
416.912(b)(5)). Therefore, evidence of a disability decision by another governmental or nongovernmental agency cannot
be ignored and must be considered.
*7 These decisions, and the evidence used to make these decisions, may provide insight into the individual's mental
and physical impairment(s) and show the degree of disability determined by these agencies based on their rules. We
will evaluate the opinion evidence from medical sources, as well as “non-medical sources” who have had contact with
the individual in their professional capacity, used by other agencies, that are in our case record, in accordance with 20
CFR 404.1527, 416.927, Social Security Rulings 96-2p and 96-5p, and the applicable factors listed above in the section
“Factors for Weighing Opinion Evidence.”
Because the ultimate responsibility for determining whether an individual is disabled under Social Security law rests
with the Commissioner, we are not bound by disability decisions by other governmental and nongovernmental agencies.
In addition, because other agencies may apply different rules and standards than we do for determining whether an
individual is disabled, this may limit the relevance of a determination of disability made by another agency. However,
the adjudicator should explain the consideration given to these decisions in the notice of decision for hearing cases and
in the case record for initial and reconsideration cases.
Effective Date: This SSR is effective upon publication in the Federal Register.
Cross-References: Social Security Rulings 96-2p, “Titles II and XVI: Giving Controlling Weight to Treating Source
Medical Opinions,” SSR 96-5p, “Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner”;
Program Operations Manual System sections DI 22505.003, DI 24515.001, DI 24515.002, DI 24515.011, and DI
24515.012.

1

As explained in SSR 96-6p, “Titles II and XVI: Consideration of Administrative Findings of Fact by State Agency Medical and
Psychological Consultants and Other Program Physicians and Psychologists at the Administrative Law Judge and Appeals
Council Levels of Administrative Review; Medical Equivalence,” paragraphs (c), (d), and (e) of 20 CFR 404.1527 and 416.927

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provide general rules for evaluating the record, with particular attention to medical opinions from “acceptable medical
sources.”

Social Security Administration
Department of Health and Human Services
SSR 06-03P (S.S.A.), 2006 WL 2329939
End of Document

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Gamble v. Commissioner of Social Security, Slip Copy (2016)
2016 WL 4491710

2016 WL 4491710
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Louise Gamble, Plaintiff,
v.
Commissioner of Social Security, Defendant.
1:15-CV-0352 (GTS/WBC)
|
Signed 07/25/2016
Attorneys and Law Firms
BUCKLEY, MENDLESON LAW FIRM, 29 Wards
Lane, OF COUNSEL: IRA MENDLESON, III, ESQ.,
Albany, NY 12204, Counsel for Plaintiff.
U.S. SOCIAL SECURITY ADMIN., OFFICE OF
REG'L GEN. COUNSEL–REGION II, 26 Federal Plaza
– Room 3904, OF COUNSEL: DAVID L. BROWN,
ESQ., SANDRA M. GROSSFELD, ESQ., New York,
NY 10278, Counsel for Defendant.

REPORT and RECOMMENDATION

Plaintiff was born on November 13, 1960. (T. 103.) She
completed high school. (T. 120.) Generally, Plaintiff's
alleged disability consists of right lumbar radiculitis, right
knee popliteal spasm, nerve damage to low left back/hip,
two bulging discs, carpal tunnel syndrome, arthritis in the
right hand, left shoulder injury, a “dropped metatarsal
bone” in her right foot, and blackouts. (T. 119.) Her
alleged disability onset date is January 15, 2007. (T. 49.)
Her date last insured is March 30, 2012. (T. 116.) She
previously worked as a certified nurse's aide (“CNA”). (T.
120.)

B. Procedural History
On April 17, 2012, Plaintiff applied for a period of
Disability Insurance Benefits (“SSD”) under Title II of the
Social Security Act. (T. 116.) Plaintiff's application was
initially denied, after which she timely requested a hearing
before an Administrative Law Judge (“the ALJ”). On
August 20, 2011, Plaintiff appeared before the ALJ, Dale
Black-Pennington. (T. 26-48.) On September 11, 2013,
ALJ Black-Pennington issued a written decision finding
Plaintiff not disabled under the Social Security Act.
(T. 10-25.) On February 23, 2015, the Appeals Council
(“AC”) denied Plaintiff's request for review, rendering the
ALJ's decision the final decision of the Commissioner. (T.
1-6.) Thereafter, Plaintiff timely sought judicial review in
this Court.

Wiliam B. Mitchell Carter, U.S. Magistrate Judge
*1 This matter was referred for report and
recommendation by the Honorable Judge Suddaby, Chief
United States District Judge, pursuant to 28 U.S.C. §
636(b) and Local Rule 72.3(d). (Dkt. No. 15.) This case
has proceeded in accordance with General Order 18.
Currently before the Court, in this Social Security
action filed by Louise Gamble (“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, 13.) For the reasons set forth
below it is recommended that this matter be remanded for
further proceedings under Sentence Four of 42 U.S.C. §
405(g).

I. RELEVANT BACKGROUND
A. Factual Background

C. The ALJ's Decision
Generally, in her decision, the ALJ made the following
five findings of fact and conclusions of law. (T. 15-22.)
First, the ALJ found that Plaintiff met the insured status
requirements through March 30, 2012 and Plaintiff had
not engaged in substantial gainful activity since January
15, 2007. (Id.) Second, the ALJ found that Plaintiff had
the severe impairments of back disorder with degenerative
changes, left hip disorder, right knee disorder, and left
shoulder disorder. (Id.) Third, the ALJ found that Plaintiff
did not have an impairment that meets or medically
equals one of the listed impairments located in 20 C.F.R.
Part 404, Subpart P, Appendix. 1. (Id.) Fourth, the
ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform light work with additional
non-exertional limitations. (Id.) 1 The ALJ determined
that Plaintiff required the ability to move about and
change positions for comfort, but would not be off task
while changing positions. (Id.) The ALJ determined that
Plaintiff could occasionally squat, stoop, crouch, and

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Gamble v. Commissioner of Social Security, Slip Copy (2016)
2016 WL 4491710

crawl. (Id.) She determined that Plaintiff could frequently,
but not repetitively or continuously, reach with her left
arm. (Id.) The ALJ determined that Plaintiff must avoid
concentrated exposures to temperature extremes and
Plaintiff must avoid unprotected heights, vibrations, and
moving mechanical parts. (Id.) Fifth, the ALJ determined
that Plaintiff was incapable of performing her past
relevant work; however, there were jobs that existed in
significant numbers in the national economy Plaintiff
could perform. (T. 20-21.)
1

Light work involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category when
it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing
and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light
work, you must have the ability to do substantially all
of these activities. If someone can do light work, we
determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss
of fine dexterity or inability to sit for long periods of
time. 20 C.F.R. § 404.1567(b).

II. THE PARTIES' BRIEFINGS ON PLAINTIFF'S
MOTION
A. Plaintiff's Arguments
*2 Plaintiff makes four separate arguments in support of
her motion for judgment on the pleadings. First, Plaintiff
argues the ALJ's determination, that Plaintiff could
perform light work, was not supported by substantial
evidence. (Dkt. No. 10 at 8-11 [Pl.'s Mem. of Law].)
Second, Plaintiff argues the ALJ failed to follow the
treating physician rule. (Id. at 12-13.) Third, Plaintiff
argues the ALJ's credibility analysis was not supported
by substantial evidence. (Id. at 14-15.) Fourth, and
lastly, Plaintiff argues the ALJ's determination should
be reversed and the matter should be remanded for
calculation of benefits. (Id. at 16.)

B. Defendant's Arguments
In response, Defendant makes four arguments. First,
Defendant argues the ALJ properly declined to grant
controlling weight to Plaintiff's treating physician. (Dkt.
No. 13 at 5-7 [Def.'s Mem. of Law].) Second, Defendant
argues that substantial evidence supported the ALJ's RFC

determination. (Id. at 7-12.) Third, Defendant argues the
ALJ did not err in evaluating Plaintiff's credibility. (Id. at
12-16.) Fourth, and lastly, Defendant argues an award of
benefits is not warranted. (Id. at 16-17.)

III. 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. See
42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health
& Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather,
the Commissioner's determination will only be reversed
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.”); 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. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d
Cir. 1982).
“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,

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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).

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).

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. See 20 C.F.R.
§ 404.1520. The Supreme Court has recognized the
validity of this sequential evaluation process. See Bowen
v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987).
The five-step process is as follows:
*3 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

IV. ANALYSIS
For ease of analysis, Plaintiff's arguments will be
addressed out of order and in a consolidated manner.

A. Medical Opinion Evidence in the Record
i.) Treating Physician, James J. Cole, M.D.
The opinion of a treating source will be given controlling
weight if 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.” 20 C.F.R. § 404.1527(c)(2); Greek v. Colvin,
802 F.3d 370, 375 (2d Cir. 2015).
The following factors must be considered by the ALJ when
deciding how much weight the opinion should receive,
even if the treating source is not given controlling weight:
“(i) the frequency of examination and the length, nature,
and extent of the treatment relationship; (ii) the evidence
in support of the opinion; (iii) the opinion's consistency
with the record as a whole; and (iv) whether the opinion is
from a specialist.” 20 C.F.R. § 404.1527(c)(2)(i)-(iv). The
ALJ is required to set forth her reasons for the weight
she assigns to the treating physician's opinion. Id., see
also SSR 96-2p, 1996 WL 374188 (July 2, 1996); Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000) (quoting Clark v.
Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998)).
Plaintiff argues that the ALJ erred in her assessment of
Plaintiff's treating source, Dr. Cole, because she failed to
assess his opinion in accordance with the Regulations.
(Dkt. No. 10 at 12-13 [Pl.'s Mem. of Law].) 2
2

Plaintiff erroneously cited to the outdated
Regulations regarding treatment of a plaintiff's
treating source. The proper citation is 20 C.F.R. §
404.1527(c)(2).

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Treatment notations from Dr. Cole span from 2007 to
2011. Dr. Cole essentially opined, on numerous occasions,
that Plaintiff was limited to lifting no more than ten or
twelve pounds. On November 13, 2006 and December 12,
2006, Dr. Cole opined Plaintiff could not lift more than ten
pounds and could not push more than twenty pounds. (T.
229-230, 251-252.) On August 30, 2007, Dr. Cole opined
Plaintiff had a “strict” ten pound lifting limit. (T. 219.) On
October 17, 2007, Dr. Cole opined Plaintiff was restricted
for lifting over ten pounds. (T. 218.) On January 10, 2008,
Dr. Cole opined that Plaintiff could not lift over twelve
pounds. (T. 216-217.) On March 19, 2008, Dr. Cole opined
Plaintiff was capable of “below sedentary work.” (T. 215.)
On June 19, 2008, Dr. Cole opined Plaintiff “persist[ed]
at low sedentary level.” (T. 214.) On September 11, 2008,
Dr. Cole stated that Plaintiff “continu[ed] at marked
disability, low sedentary” and it was “appropriate for
her to retrain for a more clerical position.” (T. 210.) On
November 2, 2008, Dr. Cole opined that Plaintiff could
not lift over ten pounds. (T. 208.) On May 15, 2009, Dr.
Cole stated Plaintiff was at “no-lifting capacity” at work
due to her injury. (T. 203.) On August 23, 2010, Dr. Cole
opined Plaintiff could return to work, provided that she
not lift at all. (T. 198.) On November 22, 2010, Dr. Cole
opined that Plaintiff could return to work, provided that
she not lift at all. (T. 196.) On various occasions Dr.
Cole opined that Plaintiff could not return to work in any
capacity due to her “weak right back, leg, and knee.” (T.
190, 192, 194, 241.)
*4 Dr. Cole opined only to Plaintiff ability to lift,
his assessments were otherwise silent regarding Plaintiff's
functional abilities. Although Dr. Cole's notations dated
June 19, 2008, indicated he completed a VESID 3 form
(T. 214) and notations dated March 2, 2009, indicated
he completed a “work restrictions form” for Plaintiff's
attorney (T. 204), these forms were not found in the
record. (T. 204.)
3

Vocational and Educational Services for Individuals
with Disabilities (“VESID”) is now referred to as
Adult Career and Continuing Education Services
—Vocational Rehabilitation (“ACCES-VR”). http://
www.acces.nysed.gov/

In her decision, the ALJ accurately summarized Dr. Cole's
treatment notations, including his opinions that Plaintiff
was essentially limited to lifting ten pounds. (T. 17-18.)
The ALJ afforded Dr. Cole's lifting limitations “little
weight” reasoning that the limitations were inconsistent

with Plaintiff's testimony that she performed a variety of
household chores and performed childcare. (T. 20.) For
the reasons stated herein, the ALJ failed to provide good
reasons for affording little weight to Dr. Cole's opinion.
The ALJ did not provide any other explanation for why
Dr. Cole's opinion was not “well-supported by medically
acceptable ... techniques” or “inconsistent with the other
substantial evidence,” 20 C.F.R. § 404.1527(c)(2), nor did
she explicitly consider any of the factors for determining
the weight given to a non-controlling opinion, see id. §
404.1527(c)(2)(i), (2)(ii), (3)-(6); Greek v. Colvin, 802 F.3d
370, 376 (2d Cir. 2015).
To be sure, 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. Atwater
v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013) (plaintiff
challenged ALJ's failure to review explicitly each factor
provided for in 20 C.F.R. § 404.1527(c), the Court held
that “no such slavish recitation of each and every factor
[was required] where the ALJ's reasoning and adherence
to the regulation [was] clear”). However, here the ALJ's
reasoning and adherence to the Regulations was not clear
because the ALJ did not provide any other explanation in
her analysis of Dr. Cole's opinion. The ALJ's discussion of
Dr. Cole's opinion failed to include an analysis of why the
opinion was, or was not, well supported by other medical
evidence or why the opinion was, or was not, consistent
with other substantial evidence in the record.
Further, the reason provided by the ALJ for rejecting
Dr. Cole's lifting limitation, that it was inconsistent with
Plaintiff's testimony regarding house work and childcare,
was improper. To be sure, the ability to care for an infant,
or small child, may require a plaintiff to lift and carry more
than ten pounds; however, here Plaintiff's grandchildren
were teenagers at the time of the hearing. (T. 30.) Plaintiff
testified that her care of her grandchildren encompassed
“feeding them” and that often her husband prepared
meals or they ordered out. (T. 128-129.) Plaintiff informed
the consultative examiner that she had a “cleaning
lady” (T. 263.) Therefore, it was unclear from the ALJ's
determination how Plaintiff's activities of daily living and
ability to care for teenagers was inconsistent with Dr.
Cole's opinion.
In sum, the ALJ failed to follow the treating physician rule
under 20 C.F.R. § 404.1527(c)(2). In her analysis of Dr.

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Cole's opinion the ALJ did not provide any explanation
for why the opinion was not well supported by medical
evidence or inconsistent with other substantial evidence.
Instead the ALJ relied solely on Plaintiff's ability to
perform housework and childcare; however, it is unclear
from her decision how Plaintiff's testimony regarding her
house work and childcare was inconsistent with Dr. Cole's
lifting limitations.

statement on June 13, 2012. (T. 262-266.) Based on his
examination of Plaintiff he opined that she had:
mild limitations for the use of
the left upper extremity because
of pain in the left scapula and
shoulder. This mild limitation is for
reaching up, reaching back, or lifting
heavy object[s]. She also [had] mild
limitation for sitting and standing
for a long period of time, walking
[a] long distance, bending, squatting,
or lifting any heavy object. This is
due to low back pain radiating to
the left lower extremity down to her
toes with peripheral neuropathy of
the left side.

ii.) State Agency Medical Examiners
*5 Plaintiff argues the ALJ erred in affording more
weight to the State agency examiners than to Dr. Cole.
(Dkt. No. 10 at 9 [Pl.'s Mem. of Law].) Providing greater
weight to the opinion of a consultative examiner, or
non-examining State agency medical consultant, does not
warrant automatic remand as Plaintiff appears to argue.
It is well settled that an ALJ is entitled to rely upon
the opinions of both examining and non-examining State
agency medical consultants, since such consultants are
deemed to be qualified experts in the field of social security
disability. See 20 C.F.R. §§ 404.1512(b)(6), 404.1513(c),
404.1527(e).
“[A]n ALJ is entitled to rely upon the opinions of
both examining and nonexamining State agency medical
consultants, since such consultants are deemed to be
qualified experts in the field of social security disability.”
Baszto v. Astrue, 700 F. Supp. 2d 242, 249 (N.D.N.Y.
2010). The Regulations recognize that the Commissioner's
consultants are highly trained physicians with expertise
in evaluation of medical issues in disability claims whose
“opinions may constitute substantial evidence in support
of residual functional capacity findings.” Lewis v. Colvin,
122 F. Supp. 3d 1, at 7 (N.D.N.Y. 2015) (citing Delgrosso
v. Colvin, 2015 WL 3915944, at *4 (N.D.N.Y. June
25, 2015), adopting Report & Recommendation, (rejecting
similar “global objection to reliance on nonexamining
medical advisers' opinions”)); see also Leach ex. Rel.
Murray v. Barnhart, No. 02-CCV-3561, 2004 WL 99935,
at *9 (S.D.N.Y. Jan. 22, 2004) (“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.”).
Here, consultative examiner, Jose Corvalan, M.D.
examined Plaintiff and supplied a medical source

(T. 266.)
Based on Dr. Corvalan's examination and opinion, nonexamining State agency consultant, Joyce Goldsmith,
M.D., opined that Plaintiff was capable of performing
the exertional requirements of light work. (T. 274.)
Dr. Goldsmith opined Plaintiff could perform postural
requirements occasionally, except that she should never
climb ladders, ropes, or scaffolds. (T. 276.) She opined
Plaintiff was limited in her ability to reach in all
directions. (Id.) Dr. Goldsmith opined Plaintiff should
avoid concentrated exposure to extreme cold and wetness;
should avoid even moderate exposure to vibrations; and
should avoid all exposure to hazards. (T. 277.)
Plaintiff argues that Dr. Corvalan's opinion was “too
vague” to constitute substantial evidence. (Dkt. No. 10
at 9 [Pl.'s Mem. of Law].) To be sure, a consultative
examiner's report which concludes that a plaintiff's
condition is “mild” or “moderate,” without additional
information, does not allow an ALJ to infer that a plaintiff
is capable of performing the exertional requirements of
work. See Curry v. Apfel, 209 F.3d 117, 123 (2d Cir.
2000), superseded by statute on other grounds; see Selian
v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) (consultative
examiner's opinion was “remarkably vague” and meaning
was left to the ALJ's “sheer speculation”); see Carrube
v. Astrue, No. 3:08-CV-0830, 2009 WL 6527504, at *8
(N.D.N.Y. Dec. 2, 2009) (remanding where consultative
examiner's opinion on claimant's ability to lift weight,
was so vague that the court “cannot fathom what
might support the ALJ's conclusion that Plaintiff could

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lift and carry twenty-five to fifty pounds”), report and
recommendation adopted by, 2010 WL 2178499 (N.D.N.Y.
May 28, 2010). Additionally, the “use of imprecise and
nebulous terms regarding functional limitations raises a
red flag.” Anderson v. Colvin, No. 5:12-CV-1008, 2013 WL
5939665, at *9 (N.D.N.Y. Nov. 5, 2013).
*6 Although a consultative examiner's opinion may use
terminology that, on its face, is vague, such language does
not render the consultative examiner's opinion useless in
all situations. Zongos v. Colvin, No. 5:12-CV-1007, 2014
WL 788791, at *10 (N.D.N.Y. Feb. 25, 2014) (“[W]hether
an [ALJ's] reliance on a consultative examiner's vague
opinion is reversible error is contextual rather than per
se. Reviewing courts must weigh the impart of vague
opinion in its unique factual circumstance.”). Courts have
held that terms such as “mild” and “moderate” pass
substantial evidence muster when medical evidence shows
relatively little physical impairment. Waldau v. Astrue,
No. 5:11-CV-925, 2012 WL 6681262, at *4 (N.D.N.Y.
Dec. 21, 2003); Walker v. Astrue, No. 08-CV-0828, 2010
WL 2629832, at *7 (W.D.N.Y. June 11, 2010) (finding
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 Tolhurst v. Comm'r
of Soc. Sec., No. 5:15-CV-0428, 2016 WL 2347910, at
*5 (N.D.N.Y. May 4, 2016) (holding that a consultative
examiner's opinion was too vague to support a finding
that plaintiff could perform sedentary work because the
ALJ determined, at step two, that plaintiff suffered from
back disorders, knee disorders, and Factor V Leiden; and
therefore, plaintiff did not have relatively little physical
impairments).
Further, courts have held that a consultative examiner's
conclusion was not impermissibly vague where the
conclusion was “well supported by his extensive
examination.” Waldau, 2012 WL 6681262, at *4; Mauzy
v. Colvin, No. 5:12-CV-866, 2014 WL 582246, at *9
(N.D.N.Y. Feb. 13, 2014). Courts have also held that
medical source statements from consultative examiners
which provide vague language may be rendered “more
concrete” by the facts in the underlying opinion and
other opinion evidence in the record. Davis v. Massanari,
No. 00-CV-4330, 2001 WL 1524495, at *8 (S.D.N.Y.
Nov. 29, 2001) (a consultative examiner's opinion was
not too vague where “the facts underlying that opinion
and the other medical opinions in the record lend it a

more concrete meaning”); see Sweeting v. Colvin, No. 12CV-0917, 2013 WL 5652501, at *8 (N.D.N.Y. Oct. 15,
2013) (plaintiff's contention that consultative examiner's
use of the term “moderate” in his opinion was vague
lacked merit as consultative examiner made specific
findings based on physical examination of plaintiff);
Melton v. Colvin, No. 13-CV-6188, 2014 WL 1686827,
at *13 (W.D.N.Y. Apr. 29, 2014) (substantial evidence
supported ALJ's RFC determination that plaintiff could
perform sedentary work were consultative examiner
opined plaintiff had moderate limitations in lifting and
carrying and other objective evidence in the record to
supported this determination).
Dr. Corvalan's opinion regarding Plaintiff's functional
abilities utilized vague terminology; however, Dr.
Corvalan conducted a physical examination which was
detailed in his report and Dr. Goldsmith provided
specific functional limitations based on Dr. Corvalan's
examination and report, thus providing definition to Dr.
Corvalan's limitations. Therefore, Dr. Corvalan's use of
vague terminology did not, in this case, render his opinion
useless.
Plaintiff also argued that the ALJ erred in affording Dr.
Corvalan's opinion more weight than Dr. Cole's opinion
because Dr. Corvalan did not have the opportunity to
review the medical record and Dr. Corvalan was not
a specialist. (Dkt. No. 10 at 9 [Pl.'s Mem. of Law].)
According to the Regulations, specialty is one factor to
consider in the overall evaluation of the medical opinion
evidence. 20 C.F.R. § 404.1527(c)(5). Further, under the
Regulations, a consultative examiner is not required to
review a plaintiff's medical record. Id. at § 404.1519n. The
ALJ did not commit legal error in failing to specifically
mention these factors in her decision; however, because
remand is recommended for a proper evaluation of Dr.
Cole's opinion, this recommendation should not be read
as to preclude a review of other medical opinions in light
thereof.
*7 The opinions of Drs. Corvalan and Goldsmith
provided substantial evidence to support the ALJ's
determination that Plaintiff had the functional capacity to
perform the walking, sitting, and standing requirements of
light work. The record does not contain any other medical
source opinion regarding Plaintiff's functional ability to
walk, sit, stand, or perform postural limitations. However,

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there is a conflict in the record regarding the amount of
weight that Plaintiff could lift and carry.
Although Plaintiff requests remand for calculation of
benefits, remand for further proceedings is appropriate.
(Dkt. No. 10 at 16-17 [Pl.'s Mem. of Law].) The Second
Circuit has held that in some cases it is appropriate
to remand for payment of benefits where there is “no
apparent basis to conclude that a more complete record
might support the Commissioner's decision,” Butts v.
Barnhart, 388 F.3d 377, 385 (2d Cir. 2004), amended on
other grounds, 416 F.3d 101 (2d Cir. 2005), and evidence
of disability is “overwhelming,” Shaw v. Chater, 221 F.3d
126, 135 (2d Cir. 2000). Here, there is a conflict in the
record which needs to be resolved by the ALJ regarding
Plaintiff's ability to lift. Dr. Cole opined Plaintiff could
lift up to ten to twelve pounds; however, Dr. Goldsmith
opined (based on Dr. Corvalan's examination and medical
source statement) that Plaintiff could lift and carry up to
twenty pounds occasionally and ten pounds frequently.
In addition, substantial evidence supported the ALJ's
determination that Plaintiff could perform the standing,
walking, and postural limitations of light work with
additional non-exertional limitations; however, assuming
Dr. Cole's weight limitation was adopted, a limitation
to lifting ten pounds does not necessarily limit Plaintiff
to sedentary work. See Pardee v. Astrue, 631 F. Supp.
2d 200 (N.D.N.Y. 2009). The testimony of a VE may
be necessary to determine if any occupations exist in the
nation economy that Plaintiff could perform if limited to
lifting ten pounds. Therefore, on remand, the ALJ should
clarify Plaintiff's ability to lift.

B. Function by Function Analysis
Plaintiff argues the ALJ erred in her RFC determination
that Plaintiff could perform light work because she failed
to conduct a function by function analysis. (Dkt. No.
10 at 10 [Pl.'s Mem. of Law].) The Second Circuit has
held that the failure to explicitly engage in a function-byfunction analysis as part of the RFC assessment does not
constitute a per se error requiring remand. See Chichocki
v. Astrue, 729 F.3d 172, 174 (2d Cir. 2013). Therefore,
contrary to Plaintiff's argument, the ALJ did not commit
reversible error in failing to engage in a function by
function analysis.

A plaintiff's allegations of pain and functional limitations
are “entitled to great weight where ... it is supported by
objective medical evidence.” Rockwood v. Astrue, 614 F.
Supp. 2d 252, 270 (N.D.N.Y. 2009) (quoting Simmons
v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 (2d Cir. 1992)).
However, the ALJ “is not required to accept [a plaintiff's]
subjective complaints without question; he may exercise
discretion in weighing the credibility of the [plaintiff's]
testimony in light of the other evidence in the record.”
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing
Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)).
“When rejecting subjective complaints, 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.” Rockwood, 614 F. Supp. 2d at 270.
*8 The ALJ must employ a two-step analysis to evaluate
the claimant's reported symptoms. See 20 C.F.R. §
404.1529; SSR 96-7p. First, the ALJ must determine
whether, based on the objective medical evidence, a
plaintiff's medical impairments “could reasonably be
expected to produce the pain or other symptoms alleged.”
20 C.F.R. § 404.1529(a); SSR 96-7p. Second, if the medical
evidence establishes the existence of such impairments, the
ALJ must evaluate the intensity, persistence, and limiting
effects of those symptoms to determine the extent to which
the symptoms limit the claimant's ability to do work. See
id.
At this second step, the ALJ must consider: (1) the
claimant's daily activities; (2) the location, duration,
frequency, and intensity of the claimant's pain or other
symptoms; (3) precipitating and aggravating factors; (4)
the type, dosage, effectiveness, and side effects of any
medication the claimant takes or has taken to relieve his
pain or other symptoms; (5) other treatment the claimant
receives or has received to relieve his pain or other
symptoms; (6) any measures that the claimant takes or has
taken to relieve his pain or other symptoms; and (7) any
other factors concerning claimant's functional limitations
and restrictions due to his pain or other symptoms. 20
C.F.R. § 404.1529(c)(3)(i)-(vii); SSR 96-7p.
Here, the ALJ determined that Plaintiff's medically
determinable impairments could reasonably be expected
to cause her alleged symptoms; however, her statements
concerning the intensity, persistence and limiting effects of
her symptoms were not entirely credible. (T. 16.)

C. The ALJ's Credibility Determination

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Plaintiff argues the ALJ erred in her credibility analysis
because she selectively relied on only portions of the
record, improperly relied on Plaintiff's conservative course
of treatment, erred in concluding Plaintiff's statements
were inconsistent with her RFC determination, and
failed to consider the factors outlined in 20 C.F.R. §
404.1529(c)(3)(i)-(vii). Because remand is recommended
for a proper evaluation of Dr. Cole's opinion, remand
is also recommended for a proper credibility analysis.
However, contrary to Plaintiff's contentions, the ALJ did
not fail to adhere to the Regulations in her credibility
analysis.
Despite the ALJ concluding elsewhere in her
determination that Plaintiff was less credible because her
testimony was inconsistent with the RFC determination
(T. 19) 4 , the ALJ did not fail to adhere to the Regulations.
The ALJ considered Plaintiff's activities of daily living
(T. 16, 19), she considered Plaintiff's testimony regarding
her symptoms (T. 16); she considered Plaintiff's medical
care, treatment, and medications (T. 17-18). Therefore,
contrary to Plaintiff's contention, the ALJ did not fail to
adhere to the Regulations at 20 C.F.R. § 404.1529(c)(3)
(i)-(vii). Despite the ALJ's adherence to the Regulations,
remand is nonetheless recommended for a new credibility
analysis in light of a proper analysis of Dr. Cole's opinion.
4

Although a “[plaintiff's] credibility may be questioned
if it is inconsistent with the medical evidence ...,
it is improper to question the plaintiff's credibility
because it is inconsistent with the RFC determined
by the ALJ.” Gehm v. Astrue, 10-CV-1170, 2013
WL 25976, at *5 (N.D.N.Y. Jan. 2, 2013); see also
Patterson v. Astrue, 11-CV-1143, 2013 WL 638617,
at *14 (N.D.N.Y. Jan. 24, 2013) (“This assessment
of plaintiff's credibility is formed only on the basis
of how plaintiff's statements compare to the ALJ's
RFC assessment. The ALJ's analysis is therefore
fatally flawed, because, it demonstrates that he

End of Document

improperly arrived at his RFC determination before
making her credibility assessment, and engaged in
a credibility assessment calculated to conform to
that RFC determination.”). Therefore, the ALJ did
improperly conclude Plaintiff's statements were not
credible in that they were inconsistent with the RFC
determination; however, this error was harmless.
Courts have concluded that despite this language,
an ALJ's credibility determination may still be
proper, if the ALJ provided a detailed discussion
of a plaintiff's credibility “explicitly and with
sufficient specificity to enable the court to decide
whether there are legitimate reasons for the ALJ's
disbelief.” Rockwood, 614 F. Supp. 2d at 270.
Further, it is the function of the ALJ, not the
reviewing courts to resolve evidentiary conflicts
and to appraise the credibility of witnesses,
including the plaintiff. Carroll v. Sec'y of Health and
Human Servs., 705 F.2d 638, 642 (2d Cir. 1982).

ACCORDINGLY, based on the findings above, it is
*9
RECOMMENDED, that the matter be
REMANDED for further proceedings under sentence four
of 42 U.S.C. § 405(g) and consistent with this report.
Pursuant to 28 U.S.C. § 636 (b)(1) and Local Rule 72.1(c),
the parties have FOURTEEN (14) DAYS within which
to file written objections to the foregoing report. Any
objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.
1993) (citing Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636 (b)
(1); Fed. R. Civ. P. 6(a), 6(e), 72.

All Citations
Slip Copy, 2016 WL 4491710

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2016 WL 4487780
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Louise Gamble, Plaintiff,
v.
Commissioner of Social Security, Defendant.
1:15-CV-0352 (GTS/WBC)
|
Signed 08/25/2016
Attorneys and Law Firms
BUCKLEY, MENDLESON, CRISCIONE & QUINN,
29 Wards Lane, OF COUNSEL: IRA MENDLESON,
III, Albany, NY 12204, Counsel for Plaintiff.
U.S. SOCIAL SECURITY ADMIN., OFFICE OF
REG'L GEN. COUNSEL – REGION II, 26 Federal
Plaza, Room 3904, OF COUNSEL: DAVID L. BROWN,
ESQ, SANDRA M. GROSSFELD, ESQ., New York,
NY 10278, Counsel for Defendant.

DECISION and ORDER
GLENN T. SUDDABY, Chief United States District
Judge
*1 Currently before the Court, in this Social Security
action filed by Louise Gamble, against the Commissioner
of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are (1) the
Report and Recommendation of United States Magistrate
Judge William B. Mitchell Carter, recommending that
Plaintiff's motion for judgment on the pleadings be
granted, and that Defendant's motion for judgment on the
pleadings be denied, and (2) Defendant's objection to the
Report and Recommendation. (Dkt. Nos. 16, 18.) For the
reasons set forth below, the Report and Recommendation
is accepted and adopted in its entirety.

I. DEFENDANT'S OBJECTIONS
Generally, Defendant argues that the Court should reject
Magistrate Judge Carter's finding that the ALJ erred in
evaluating the opinions of treating physician, Dr. Cole,
regarding the amount of weight that Plaintiff could lift.

(Dkt. No. 18, at 2-9.) Within this argument, Defendant
argues that (1) the ALJ properly afforded little weight to
the lifting restrictions opined by Dr. Cole (because the
ALJ properly found that these lifting restrictions were
inconsistent with Plaintiff's reported activities), and (2)
Magistrate Judge Carter did not apply the deferential
standard of review in declining to affirm the ALJ's RFC
determination. (Id.)

II. APPLICABLE LEGAL STANDARD
A district court reviewing a magistrate judge's Report
and Recommendation “may accept, reject, or modify,
in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1)
(C). Parties may raise objections to the magistrate judge's
Report and Recommendation, but they must be “specific
written objections,” and must be submitted “[w]ithin 14
days after being served with a copy of the recommended
disposition.” Fed. R. Civ. P. 72(b)(2); accord, 28 U.S.C.
§ 636(b)(1)(C). “A judge of the court shall make a de
novo determination of those portions of the [Report
and Recommendation] ... to which objection is made.”
28 U.S.C. § 636(b)(1)(C); accord, Fed. R. Civ. P. 72(b)
(2). “Where, however, an objecting party makes only
conclusory or general objections, or simply reiterates
his original arguments, the Court reviews the Report
and Recommendation only for clear error.” Caldwell v.
Crosset, 9-CV-0576, 2010 WL 2346330, at * 1 (N.D.N.Y.
June 9, 2010) (quoting Farid v. Bouey, 554 F. Supp. 2d 301,
307 [N.D.N.Y. 2008]) (internal quotation marks omitted).

III. ANALYSIS
The Court finds that Defendant's objection largely restates
arguments presented in her initial brief. (Compare Dkt.
No. 18 with Dkt. No. 13.) To the extent that Plaintiff's
objection raises specific objections to Magistrate Judge
Carter's findings, the Court reviews these portions of the
Report and Recommendation de novo.
First, the Court agrees with Magistrate Judge Carter
that the ALJ failed to follow the treating physician
rule in assessing Dr. Cole's numerous opinions of
Plaintiff's lifting restrictions for the reasons stated in the
Report and Recommendation. (Dkt. No. 16.) Second,
turning to Defendant's argument that Magistrate Judge
Carter did not apply the deferential standard of review
in declining to affirm the ALJ's RFC determination,
the Court finds this argument without merit. After

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2016 WL 4487780

carefully reviewing the relevant filings in this action,
including Magistrate Judge Carter's thorough Report and
Recommendation, the Court finds that Magistrate Judge
Carter employed the proper standards, accurately recited
the facts, and reasonably applied the law to those facts.
(Id.) Therefore, the Court accepts and adopts the Report
and Recommendation in its entirety for the reasons stated
herein and in the Report and Recommendation. (Dkt. No.
16.)

ORDERED that the Commissioner's determination is
VACATED; and it is further
ORDERED that the matter is REMANDED to the
Commissioner of Social Security for further proceedings
consistent with this Order.
Dated: August 25, 2016.

*2 ACCORDINGLY, it is

All Citations

ORDERED that Magistrate Judge Carter's Report and
Recommendation (Dkt. No. 16) is ACCEPTED and
ADOPTED in its entirety; and it is further

Slip Copy, 2016 WL 4487780

End of Document

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2

Provencher v. Commissioner of Social Security, Slip Copy (2017)
2017 WL 56702

2017 WL 56702
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Melissa Provencher, Plaintiff,
v.
Commissioner of Social Security, Defendant.
6:15-CV-1287 (GTS)
|
Signed 01/05/2017
Attorneys and Law Firms
LAW OFFICES OF STEVEN R. DOLSON, 126 North
Salina Street, Suite 3B, OF COUNSEL:, STEVEN R.
DOLSON, ESQ., Syracuse, NY 13202, Counsel for
Plaintiff.
U.S. SOCIAL SECURITY ADMIN., OFFICE OF
REG'L GEN. COUNSEL–REGION II, 26 Federal
Plaza, Room 3904, OF COUNSEL: PETER W.
JEWETT, ESQ., New York, NY 10278, Counsel for
Defendant.

DECISION and ORDER
GLENN T. SUDDABY, Chief United States District
Judge
*1 Currently before the Court, in this Social Security
action filed by Melissa Provencher (“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. 9, 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 obtained a certificate of general educational
development (GED), and has past work as a housekeeper
and a child care provider. (T. 173, 177-78.) 1 Generally,
Plaintiff's alleged disability consists of intervertebral disc

disorder, lumbago, and sciatica with pain in both legs. (T.
176.)
1

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

B. Procedural History
On September 12, 2012, Plaintiff applied for a period
of Disability and Disability Insurance Benefits, alleging
disability beginning July 7, 2011. (T. 16.) Plaintiff's
application was initially denied on December 26, 2012,
after which she timely requested a hearing before an
Administrative Law Judge (“ALJ”). (Id.) On May 20,
2014, Plaintiff appeared in a video hearing before the ALJ,
Angela Miranda. (T. 26-54.) On June 27, 2014, the ALJ
issued a written decision finding Plaintiff not disabled
under the Social Security Act. (T. 10-25.) On September
3, 2015, the Appeals Council denied Plaintiff's request for
review, rendering the ALJ's decision the final decision of
the Commissioner. (T. 1-6.) Thereafter, Plaintiff timely
sought judicial review in this Court.

C. The ALJ's Decision
Generally, in her decision, the ALJ made the following
six findings of fact and conclusions of law. (T. 18-24.)
First, the ALJ found that Plaintiff met the insured
status requirements of the Social Security Act through
December 31, 2016, and has not engaged in substantial
gainful activity since July 7, 2011, the alleged onset date.
(T. 18.) Second, the ALJ found that Plaintiff has the
following severe impairments: lumbar spine dysfunction
including protrusions and bulges at multiple levels with
mild foraminal stenosis and described as generalized
spondylitis with mild degenerative changes. (T. 18-19.)
The ALJ found that Plaintiff's allergic rhinitis and obesity
are not severe impairments under the regulations. (Id.)
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. 19.) The ALJ
considered Listing 1.04 (disorders of the spine). (Id.)
Fourth, the ALJ found that Plaintiff has the residual
functional capacity (“RFC”) to perform
light work as defined in 20
CFR 404.1567(b) with postural
limitations. More specifically, the

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Provencher v. Commissioner of Social Security, Slip Copy (2017)
2017 WL 56702

claimant has the capacity to
occasionally lift and carry 20 pounds
and to frequently lift and carry
10 pounds. The claimant has the
unlimited capacity to push and pull
up to the weight capacity for lifting
and carrying. The claimant has the
capacity to stand and walk 6-8 hours
in an 8-hour workday and has the
capacity to sit 6-8 hours in an 8-hour
workday. The claimant requires the
ability to change position while at
work and this can be met at normal
breaks or meal periods and without
leaving the work position. Given the
claimant's limitations in mobility,
the claimant has the capacity to
occasionally stoop, kneel, crouch,
crawl, and climb stairs and ramps.
The claimant has no limitations
in manipulative abilities and no
limitations in the ability to balance.
Despite the claimant's subjective
complaints of pain, mentally the
claimant has the capacity to
understand, remember, and carry
out multi-step tasks, consistent
with the demands of a normal
workday. The claimant has the
capacity to appropriately interact
with supervisors, coworkers, and the
general public. The claimant has
the capacity to identify and avoid
normal work place hazards and to
adapt to routine changes in the work
place.
*2 (T. 19-22.) Fifth, the ALJ found that Plaintiff is
able to perform past relevant work as a cashier and
a housekeeper. (T. 22-23.) Sixth, in the alternative, the
ALJ determined that there are other jobs that exist in
significant numbers in the national economy that Plaintiff
can perform. (T. 23-24.)

D. The Parties' Briefings on Their Cross-Motions
Plaintiff argues that the ALJ committed reversible error
by improperly evaluating the opinion of treating physician
Vivienne Taylor, M.D. (Dkt. No. 9, at 4-9 [Pl.'s Mem. of
Law].) Construed liberally, Plaintiff appears to argue that

the ALJ improperly substituted her own lay opinion in
assessing Dr. Taylor's opinion and Plaintiff's RFC because
the ALJ failed to cite an alternative medical opinion to
support her findings. (Id., at 5, 9.)
Defendant argues that the ALJ properly assessed Dr.
Taylor's opinion and Plaintiff's RFC. (Dkt. No. 11, at 5-19
[Def.'s Mem. of Law].)

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).
“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

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Provencher v. Commissioner of Social Security, Slip Copy (2017)
2017 WL 56702

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
*3 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. The Supreme Court has recognized the validity
of this sequential evaluation process. Bowyen 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
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 nondisability can be made, the SSA will not review the claim
further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).

III. ANALYSIS
A. Whether the ALJ Properly Assessed the Opinion
of Treating Physician Dr. Taylor in Determining
Plaintiff's RFC
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. 9, at 4-9 [Pl.'s
Mem. of Law].) To those reasons, the Court adds the
following analysis.
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]).
“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,

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Provencher v. Commissioner of Social Security, Slip Copy (2017)
2017 WL 56702

at *8 (W.D.N.Y. Aug. 29, 2013) (citing 20 C.F.R. §
404.1545[a][3]-[4] ). The ALJ must consider opinions from
acceptable medical sources, and may consider opinions
from other sources, to show how a claimant's impairments
may affect his or her ability to work. 2 20 C.F.R. §
404.1513(a)(1)-(5) (identifying the five types of acceptable
medical sources as: (1) licensed physicians, (2) licensed
or certified psychologists, (3) licensed optometrists, (4)
licensed podiatrists, and (5) qualified speech-language
pathologists).
2

Social Security regulations define medical opinions
as “statements from physicians and psychologists
or other acceptable medical sources that reflect
judgments about the nature and severity of ... [a
plaintiff's] impairment(s), including ... [a plaintiff's]
symptoms, diagnosis and prognosis, what ... [a
plaintiff] can still do despite impairment(s), and ... [a
plaintiff's] physical or mental restrictions.” 20 C.F.R.
§ 404.1527(a)(2).

*4 Under the “treating physician's rule,” controlling
weight is afforded to an opinion from a plaintiff's treating
physician when (1) the opinion is well supported by
medically acceptable clinical and laboratory diagnostic
techniques, and (2) the opinion is not inconsistent with
other substantial evidence in the record, such as opinions
of other medical experts. 20 C.F.R. § 404.1527(c)(2); Greek
v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015), Brogan-Dawley
v. Astrue, 484 Fed.Appx. 632, 633-34 (2d Cir. 2012).
Regulations require an ALJ to set forth his or her reasons
for the weight afforded to a treating physician's opinion.
Greek, 801 F.3d at 375; 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 frequency, length, nature and extent
of the physician's 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. 20 C.F.R. §
404.1527(c); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d
Cir. 2004) (listing regulatory factors).
Here, the record includes opinions of Plaintiff's workrelated physical abilities and limitations from the
following two acceptable medical sources: (1) consultative

examining neurologist Kautilya Puri, M.D., and (2)
treating primary care physician Vivienne Taylor, M.D. (T.
272-74, 370-72.)

i. Consultative Examining Neurologist Dr. Puri
On November 7, 2012, Dr. Puri examined Plaintiff and
diagnosed her with low back pain with radiculopathy.
(T. 272-74.) Dr. Puri noted that an MRI study of
Plaintiff's spine showed disc bulges and degenerative joint
disease. (T. 272.) Upon examination, Dr. Puri observed
that Plaintiff could stand on her heels and toes, but
Plaintiff stated that she could not walk on her heels
and toes. (T. 273.) Dr. Puri observed that Plaintiff had
a decreased squat, but she was able to rise from a
chair without difficulty. (Id.) Dr. Puri observed that
Plaintiff's lumbar spine had a general decreased range
of motion of five to ten degrees to all modalities with
mild local tenderness. (Id.) Dr. Puri further observed that
Plaintiff's straight leg raising test was mildly positive on
the left. (Id.) In sum, Dr. Puri opined that Plaintiff had
“mild” limitations in bending, stooping, and kneeling; and
Plaintiff should not lift “heavy” weights. (T. 274.) Dr. Puri
opined that Plaintiff exhibited no objective limitations in
communication, fine motor activity, gross motor activity,
or gait. (Id.)

ii. Treating Primary Care Physician Dr. Taylor
On April 28, 2014, Dr. Taylor provided an opinion of
Plaintiff's work-related physical abilities and limitations
due to her intervertebral degenerative disc disease of the
lumbar spine. (T. 370-72.) Dr. Taylor opined that Plaintiff
could sit and stand/walk for six minutes at a time and
for less than two hours in an eight-hour workday, could
“rarely” lift less than ten pounds, and could “never” lift
ten pounds or more during an eight-hour workday. 3 (T.
370-71.) Dr. Taylor opined that Plaintiff would need a
job that permits shifting positions at will from sitting,
standing, or walking; and Plaintiff would need to take
unscheduled breaks every 15 minutes during an eight-hour
workday. (Id.) Finally, Dr. Taylor opined that Plaintiff
could “rarely” look down, twist, and climb stairs; and
could “never” crouch/squat or climb ladders. (T. 372.) Dr.
Taylor's opinion indicated that Plaintiff's symptoms and
limitations have existed since January 2, 1996. (Id.)

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Provencher v. Commissioner of Social Security, Slip Copy (2017)
2017 WL 56702

3

Dr. Taylor's assessment form stated that “ ‘rarely’
means 1% to 5% of an 8-hour working day; [and]
‘occasionally’ means 6% to 33% of an 8-hour working
day.” (T. 370.)

*5 The ALJ afforded “limited weight” to Dr. Taylor's
opinion, stating that the opinion was “at odds” with
objective evidence and examination notes in the record.
(T. 21.) However, the ALJ failed to cite, and the
record does not contain, a medical opinion to dispute
Dr. Taylor's opinion of Plaintiff's lifting and carrying
restrictions, and to establish that Plaintiff could perform
all of the exertional demands of the ALJ's RFC (namely,
lifting and carrying 20 pounds occasionally, and 10
pounds frequently). (Id.) Accordingly, it appears that
the ALJ improperly substituted her own lay opinion for
competent medical opinion evidence.
It is well settled that the ALJ is not permitted to substitute
his or her own 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) (“[W]hile an [ALJ]
is free to resolve issues of credibility as to lay testimony or
to choose between properly submitted medical opinions,
he is not free to set his own expertise against that of a
physician who [submitted a medical opinion to] or testified
before him.”). Therefore, the Court need not address
whether Dr. Taylor's opinions bound the ALJ under the
regulations due to the ALJ's aforementioned omission.
Balsamo, 142 F.3d at 81 (finding that the Court need not
address whether the physicians' opinions bound the ALJ
under the regulations because the ALJ did not cite any
medical opinion to dispute the physicians' conclusions as
to the plaintiff's work-related limitations).
Moreover, even if the ALJ properly assessed Dr. Taylor's
opinion, the ALJ's RFC determination that Plaintiff
could perform a range of light 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-CV-0915, 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).

As discussed above, the ALJ determined that Plaintiff
had the RFC to perform a range of light work, which
requires lifting and carrying up to 20 pounds occasionally
(up to one-third of an eight-hour workday), and lifting
and carrying up to ten pounds frequently (up to twothirds of an eight-hour workday). (T. 19-22); 20 C.F.R. §
404.1567(b); SSR 83-10, 1983 WL 31251 (1983). However,
Dr. Taylor opined that Plaintiff could “rarely” lift less
than ten pounds and “never” lift ten pounds or more;
and Dr. Puri opined that Plaintiff should not lift “heavy”
weights. (T. 274, 370-71.) Notably, Dr. Puri's opinion
neither defined the term “heavy” nor specified an amount
of weight that Plaintiff could lift and carry in an eighthour workday. (T. 274.) The ALJ indicated that Dr. Puri's
opined limitations were “somewhat vague,” noting that
Dr. Puri did not define the term “mild,” and the meaning
of the term was not evident from the examination report.
(T. 19.) However, the ALJ did not recontact Dr. Puri
to resolve any ambiguities in the opinion, or to obtain a
more specific opinion of Plaintiff's work-related physical
abilities and limitations.
The Court recognizes 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; see also Hart v. Comm'r, 07CV-1270 2010 WL 2817479, at *5 (N.D.N.Y. July 16,
2010). 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. §§ 404.1520b(c)(1)-(4); Rosa, 168
F.3d at 80; Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998).
*6 The Second Circuit has found that a consultative
examiner's use of the terms “moderate” and “mild,”
without additional information, was so vague as to render
the opinion useless in evaluating whether the plaintiff
could perform the exertional requirements of sedentary
work. Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000)
(superceded by statute on other grounds). The use of
terms like “mild” and “moderate” has been found to
pass substantial evidence muster when medical evidence
shows relatively little physical impairment. Anderson v.
Colvin, 12-CV-1008, 2010 WL 5939665, at *9 (N.D.N.Y.
Nov. 5, 2013) (citing Waldau v. Astrue, 11-CV-0925,

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Provencher v. Commissioner of Social Security, Slip Copy (2017)
2017 WL 56702

2010 WL 6681262, at 4 ( [N.D.N.Y. Dec. 21, 2003] ).
However, that is not the case in the present matter because
the ALJ determined that Plaintiff's had severe lumbar
spine dysfunction including protrusions and bulges at
multiple levels with mild foraminal stenosis (described as
generalized spondylitis with mild degenerative changes).
(T. 18-19.) Accordingly, based on the current record,
Dr. Puri's opinion is too vague to establish whether
Plaintiff can perform the physical requirements of the
ALJ's RFC, including lifting and carrying up to 20 pounds
occasionally and up to ten pounds frequently. (T. 19-22.)
For these reasons, remand is necessary for the ALJ to
reassess the opinion of treating physician Dr. Taylor. As
appropriate, the ALJ may recontact Dr. Taylor and/or
Dr. Puri to request clarification or additional information
regarding their opinions. See 20 C.F.R. § 404.1520b(c)(1)
(providing that an ALJ may recontact a medical source
for clarification or to obtain additional information).
This may include recontacting Dr. Puri to obtain a
more specific opinion of Plaintiff's physical abilities and
limitations, including the amount of weight that Plaintiff
End of Document

can lift and carry, and how frequently Plaintiff can lift and
carry objects, during an eight-hour workday. Remand is
also required for the ALJ to reevaluate Plaintiff's RFC
based on a proper evaluation of the physical opinions and
in light of any new information obtained.
ACCORDINGLY, it is
ORDERED that Plaintiff's motion for judgment on the
pleadings (Dkt. No. 9) 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
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.

All Citations
Slip Copy, 2017 WL 56702

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6

Jaghamin v. Commissioner of Social Sec., Not Reported in F.Supp.2d (2013)
2013 WL 1292061

2013 WL 1292061
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Patricia A. JAGHAMIN, Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY, Defendant.
No. 1:11–cv–1273 (GLS).
|
March 28, 2013.
Attorneys and Law Firms
Office of Peter M. Margolius, Peter M. Margolius, Esq.,
of Counsel, Catskill, NY, for the Plaintiff.
Hon. Richard S. Hartunian, United States Attorney,
Tomasina Digrigoli, Special Assistant U.S. Attorney,
of Counsel, Syracuse, NY, Steven P. Conte, Regional
Chief Counsel, Social Security Administration, Office of
General Counsel, Region II, New York, NY, for the
Defendant.

MEMORANDUM–DECISION AND ORDER
GARY L. SHARPE, Chief Judge.
I. Introduction
*1 Plaintiff Patricia A. Jaghamin challenges the
Commissioner of Social Security's denial of her claim
for a period of disability, Disability Insurance Benefits
(DIB), and Supplemental Security Income (SSI) and seeks
judicial review under 42 U.S.C. § 405(g). (See Compl.,
Dkt. No. 1.) After reviewing the administrative record
and carefully considering Jaghamin's arguments, the court
affirms the Commissioner's decision and dismisses the
Complaint.

II. Background
On February 25, 2009, Jaghamin filed applications
for DIB and SSI under the Social Security Act (“the
Act”), alleging disability since September 23, 2008.

(See Tr. 1 at 62–63, 100–06.) After her applications
were denied, (see id. at 64–71), Jaghamin requested a
hearing before an Administrative Law Judge (ALJ),
which was held on July 23, 2010, (see id. at 26–61, 75).
On September 9, 2010 the ALJ issued an unfavorable
decision denying the requested benefits, which became
the Commissioner's final determination upon the Social
Security Administration Appeals Council's denial of
review. (See id. at 1–5, 8–25.)
1

Page references preceded by “Tr.” are to the
Administrative Transcript. (See Dkt. No. 9.)

Jaghamin commenced the present action by filing her
Complaint on October 26, 2011 wherein she sought review
of the Commissioner's determination. (See generally
Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (See Dkt. Nos. 7,
9.) Each party, seeking judgment on the pleadings, filed a
brief. (See Dkt. Nos. 13, 17.)

III. Contentions
Jaghamin contends that the Commissioner's decision is
tainted by legal error and is not supported by substantial
evidence. (See Dkt. No. 13 at 3–8.) Specifically, Jaghamin
claims that the: (1) Appeals Council erred by failing
to grant review or remand in light of new and
material evidence; (2) residual functional capacity (RFC)
determination is not supported by substantial evidence;
(3) ALJ improperly evaluated the opinions of her treating
physicians; and (4) ALJ failed to consider the records or
opinion of her chiropractor. (See id.) The Commissioner
counters that the appropriate legal standards were used
by the ALJ and her decision is supported by substantial
evidence. (See Dkt. No. 17 at 10–23.)

IV. Facts
The court adopts the parties' undisputed factual
recitations. (See Dkt. No. 13 at 1–3; Dkt. No. 17 at 2–5.)

V. Standard of Review
The standard for reviewing the Commissioner's final
decision under 42 U.S.C. § 405(g) 2 is well established

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Jaghamin v. Commissioner of Social Sec., Not Reported in F.Supp.2d (2013)
2013 WL 1292061

and will not be repeated here. For a full discussion
of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled
under the Act, the court refers the parties to its previous
decision in Christiana v. Comm'r of Soc. Sec. Admin., No.
1:05–CV–932, 2008 WL 759076, at *1–2 (N.D.N.Y. Mar.
19, 2008).
2

42 U.S.C. § 1383(c)(3) renders section 405(g)
applicable to judicial review of SSI claims. As review
under both sections is identical, parallel citations to
the Regulations governing SSI are omitted.

VI. Discussion
A. Appeals Council Review
First, Jaghamin contends that the Appeals Council erred
by failing to reverse or remand based on evidence
submitted to it after the ALJ's decision. (See Dkt. No.
13 at 3–4.) The Commissioner counters, and the court
agrees, that the records presented to the Appeals Council
provided no basis to change the ALJ's decision. (See Dkt.
No. 17 at 10–11.)
*2 The Appeals Council shall consider “new and
material” evidence if it “relates to the period on or before
the date of the [ALJ] hearing decision.” 20 C.F.R. §
404.976(b)(1); see Perez v. Charter, 77 F.3d 41, 45 (2d
Cir.1996). The Appeals Council “will then review the case
if it finds that the [ALJ]'s action, findings, or conclusion is
contrary to the weight of the evidence currently of record.”
20 C.F.R. § 404.970(b). However, even if “the Appeals
Council denies review after considering new evidence,
the [Commissioner]'s final decision necessarily includes
the Appeals Council's conclusion that the ALJ's findings
remained correct despite the new evidence.” Perez, 77 F.3d
at 45 (internal quotation marks and citation omitted).
Accordingly, the additional evidence becomes part of the
administrative record reviewed by the district court. Id. at
45–46.
In this case, Jaghamin submitted additional evidence to
the Appeals Council, which was noted by the Appeals
Council in its denial of review. (See Tr. at 1–5.) The
evidence submitted by Jaghamin included a letter from
treating psychologist Dr. Walter Kendall and additional
treatment records from Greene County Mental Health
Center, as well as treatment records from Albany Medical
Center, St. Peter's Cancer Care Center, and Capitol

Region Urological Surgeons. (See Tr. at 412–25, 432–
44.) The Appeals Council determined that the additional
evidence did not provide a basis for changing the ALJ's
decision. (See id. at 2, 4.)
In his October 2010 letter, Dr. Kendall opined that
Jaghamin's “ability to perform work related activities
on a sustained basis is notably impaired.” (Id. at 414.)
In addition, the treatment records from Green County
Mental Health Center contain an August 2010 treatment
plan completed by Dr. Kendall who rated Jaghamin's
Global Assessment of Functioning at fifty. 3 (See id. at
414–15.) Presuming, without deciding, that this evidence
relating to Jaghamin's mental condition was within
the relevant time period, 4 the court agrees with the
Commissioner that these records do not render the
ALJ's findings or conclusion contrary to the weight of
the evidence. See 20 C.F.R. § 404.970(b). Specifically,
the ALJ had before him numerous treatment records
from Green County Mental Health Center, including
assessments of Jaghamin's GAF score in May, September
and November 2009 as well as February and May 2010. 5
(See Tr. at 276–89, 362–69.) Indeed, the ALJ specifically
noted Jaghamin's GAF scores of fifty and explained her
reasoning for according them “little weight” in making
her RFC determination. (Id. at 22–23.) As the evidence
submitted to the Appeals Council from Green County
Mental Health Center was consistent with the evidence
before the ALJ from this treating source, it did not
“undermine[ ] the findings on which the ALJ's denial of
[Jaghamin]'s claims was based.” See Brown v. Apfel, 174
F.3d 59, 60 (2d Cir.1999).
3

4

The GAF Scale “ranks psychological, social,
and occupational functioning on a hypothetical
continuum of mental health-illness.” Pollard v.
Halter, 377 F.3d 183, 186 n. 1 (2d Cir.2004). A
GAF score of between forty-one and fifty indicates
“[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting), or any
serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a
job).” Diagnostic and Statistical Manual of Mental
Disorders 34 (4th ed., Text Rev.2000).
“The Appeals Council shall consider the additional
evidence only where it relates to the period on
or before the date of the administrative law judge
hearing decision.” See 20 C.F.R. § 416.1470(b).

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5

Throughout this time, Jaghamin's GAF score was
assessed to be fifty, fifty-four, or fifty-five. (See Tr.
at 276–78, 282, 364–65.) A GAF score of between
fifty-one and sixty indicates “[m]oderate symptoms
(e.g., flat affect and circumstantial speech, occasional
panic attacks) OR moderate difficulty in social,
occupational, or school functioning (e.g., few friends,
conflicts with peers or coworkers).” Diagnostic and
Statistical Manual of Mental Disorders at 34.

*3 Jaghamin further contends that a March 2010
consultation report—first submitted to the Appeals
Council—which referred to a January 2010 MRI of her
cervical spine, contradicts the ALJ's finding that the small
nerve sheath lesion at the C5–C6 level was stable. (See
Dkt. No. 13 at 4; Tr. at 20, 412.) Specifically, the January
2010 MRI found “[p]erhaps [a] slight increase in size of
enhancing intradural, extramadullary mass at C5–C6 on
the left.” jr. at 301). In addition to discussing the results
of the January 2010 MRI, the consultation report also
notes that Jaghamin had symmetrical reflexes and full
5/5 motor strength in her upper extremities. (See id. at
413.) Further, the report noted that Jaghamin experienced
tenderness in the neck area, diminished range of motion
in her neck, and diminished sensation in her upper right
extremity, but was able to sit without discomfort and walk
with a normal gait. (See id.) Thus, these records do not
“ ‘significantly discredit[ ] or undercut the ALJ's decision
to deny benefits.’ “ See Knight v. Astrue, No. 10 Civ.
5301, 2011 WL 4073603, at *13 (E.D.N.Y. Sept. 13, 2011)
(quoting Fernandez v. Apfel, CIV. A. CV–977532DGT,
1999 WL 1129056, at *4 (E.D.N.Y. Oct. 4, 1999)).
With respect to the records from St. Peter's Cancer
Care Center, which document treatment Jaghamin
received from November 2010 through July 2011 for
the “[s]chwannoma involving the C5–C6 region,” and
the records from Capitol Region Urological Surgeons,
where Jaghamin was evaluated for urinary incontinence
beginning in October 2010, even if the evidence could be
construed to relate to the relevant period of disability,
the court agrees with the Commissioner that they do not
add so much to the record as to displace the substantial
evidence supporting the ALJ's RFC determination. jr.
at 420; see id. at 419–25, 432–44.) The records do not
offer any retrospective opinion as to Jaghamin's condition
during the relevant period or any opinion as to Jaghamin's
functional capabilities. In addition, despite Jaghamin's
contention, her treatment with a specialist after the ALJ's
decision does not undermine the ALJ's finding that

Jaghamin's urinary incontinence was not severe, 6 in part,
because she had failed to follow through with her treating
physician's repeated recommendation to see a urologist.
(See Dkt. No. 13 at 4; Tr. at 14.)
6

A “severe impairment” is “any impairment or
combination of impairments which significantly
limits [a claimant's] physical or mental ability to do
basic work activities.” 20 C.F.R. § 404.1520(c).

B. RFC Determination
Next, Jaghamin attacks the ALJ's RFC determination
that she is able to perform sedentary or light work with
certain restrictions to account for her specific limitations.
(See Dkt. No. 13 at 4–5.) According to Jaghamin, the
ALJ's RFC determination “is simply conclusory and does
not contain any rationale or reference to any opinions
relied upon.” (Id. at 5.) The court does not agree.
A claimant's RFC “is the most [she] can still do
despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). In
assessing a claimant's RFC, an ALJ must consider “all
of the relevant medical and other evidence,” including a
claimant's subjective complaints of pain. Id. § 404.1545(a)
(3). An ALJ's RFC determination must be supported by
substantial evidence 7 in the record. See 42 U.S.C. 405(g).
If it is, that determination is conclusive and must be
affirmed upon judicial review. See id.; Perez, 77 F.3d at 46.
7

“Substantial evidence is defined as more than a
mere scintilla. It means such relevant evidence
as a reasonable mind might accept to support a
conclusion.” Alston v. Sullivan, 904 F.2d 122, 126
(2d Cir.1990) (internal quotation marks and citations
omitted).

*4 Here, the ALJ's decision examined the relevant
factors in reaching an RFC determination—principally
relying on the opinions of state agency medical consultant
R. Weiss and consultative examiner Amelita Balagtas. 8
(See Tr. at 21–23.) It is readily apparent that the ALJ
considered all of the record evidence, as the lengthy RFC
determination—which spans seven pages—specifically
discusses Jaghamin's daily activities, her pain and the
medications she used to treat it, the objective medical
evidence of record, and the opinion evidence from
treating, examining, and non-examining sources. (See id.
at 17–23.) Indeed, the record as a whole demonstrates
the ALJ's RFC assessment is supported by substantial

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evidence and is therefore conclusive. See Alston v. Sullivan,
904 F.2d 122, 126 (2nd Cir.1990); Perez, 77 F.3d at 46.
8

Although the ALJ failed to specify what weight she
assigned to Dr. Balagtas' opinion, the ALJ explicitly
considered the results of her examination and her
Medical Source Statement, which support the ALJ's
RFC determination. (See Tr. at 21, 228–30.)

C. Weighing Medical Opinions
Jaghamin also alleges that the ALJ failed to comply with
the treating physician rule by inadequately weighing the
opinions of treating physician Walter Hubicki and Dr.
Kendall. (See Dkt. No. 13 at 5–7.) The Commissioner
counters, and the court agrees, that the weight afforded
to these opinions by the ALJ is supported by substantial
evidence. (See Dkt. No. 17 at 17–20.)
Medical opinions, regardless of the source, are evaluated
by considering several factors outlined in 20 C.F.R.
§ 404.1527(c). Controlling weight will be given to a
treating physician's opinion that is “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other
substantial evidence.” 20 C.F.R. § 404.1527(c)(2); see
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004).
Unless controlling weight is given to a treating source's
opinion, the ALJ is required to consider the following
factors in determining the weight assigned to a medical
opinion: whether or not the source examined the
claimant; the existence, length and nature of a treatment
relationship; the frequency of examination; evidentiary
support offered; consistency with the record as a whole;
and specialization of the examiner. See 20 C.F.R. §
404.1527(c).
Here, Dr. Hubicki completed a Medical Source Statement
form and opined that Jaghamin could lift up to
twenty pounds occasionally and carry up to ten pounds
occasionally. (See Tr. at 331.) Further, he reported that,
in an eight-hour work day, Jaghamin could sit for three
hours, for up to forty-five minutes at one time, stand for
three hours, one hour at a time, and walk for two hours,
one hour at a time. (See id. at 332.) In addition, Jaghamin
was limited to occasionally reaching and handling with
her left hand and could never feel, push, or pull with
her left hand. (See id. at 333.) Finally, Jaghamin could
never climb ladders or scaffolds and could never tolerate
exposure to unprotected heights, moving mechanical

parts, extreme cold, extreme heat, or vibrations, but could
occasionally balance and tolerate exposure to operating a
motor vehicle, humidity and wetness, dust, odors, fumes,
and pulmonary irritants. (See id. at 334–35.) The ALJ
accorded Dr. Hubicki's opinion “little weight” because it
was not supported by the objective medical evidence and
was based primarily on Jaghamin's subjective complaints.
(Id. at 21.)
*5 Indeed, Dr. Hubicki's own treatment notes evidence
a decreased range of motion in Jaghamin's neck and
occasional tenderness in her left shoulder, cervical
midline, and left trapezius, but they otherwise indicate no
musculoskeletal or neurological findings. (See id. at 370–
71, 374–75, 381–82, 385, 390, 402, 411.)
Consistent with Dr. Hubicki's treatment records,
Jaghamin was examined by Dr. Balagtas in April 2009
and found to suffer a decreased range of motion in her
cervical spine and left shoulder, but have 5/5 strength in
her biceps and triceps bilaterally, no muscle atrophy in her
upper extremities, and normal reflexes, although sensation
was decreased in her left hand. (See Tr. at 229.) Jaghamin's
hand and finger dexterity were intact but her grip strength
was 4.5/5 on the left. (See id.) Based on this examination,
Dr. Balagtas opined that Jaghamin “would have moderate
limitations in activities that require lifting and overhead
activities.” (Id. at 230.)
Thereafter, in July 2009, Jaghamin was examined at
Columbia Memorial Hospital Pain Management and was
found to suffer muscle waste in her left hand and a
decreased range of motion in her left shoulder, however,
her sensory and reflex exams were normal and she had
a normal gait and stance. (See id. at 271.) A subsequent
examination, in August 2009, revealed a normal gait and
stance, normal reflexes, and, except for decreased grip
strength in her left hand, a normal motor exam. (See
id. at 262.) In December 2009, Jaghamin was examined
by Dr. Louis Noce who noted that she sat comfortably,
in no apparent distress and walked with a normal heelto-toe gait. (See id. at 296.) Dr. Noce indicated that
Jaghamin's reflexes were not fully intact, but her upper
extremity strength, including in her biceps, triceps, and
grip, was 5/5. (See id.) Finally, in March 2010, she was
examined by Dr. Farag Aboelsaad and found to “sit[ ]
with no apparent distress or discomfort [and w]alk[ ] with
[a] normal gait.” (Id. at 413.) Dr. Aboelsaad also noted
that Jaghamin's motor strength was 5/5 and the deep

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tendon reflexes in her upper extremities were symmetrical,
although sensation was diminished in her upper right
extremity and her neck exam revealed tenderness and a
decreased “left side range of motion.” (Id.)
In addition to these treatment notes and the opinion of
Dr. Balagtas, an EMG study conducted in December 2009
revealed “a mild, chronic radiculopathy at C6 or C7 on
the left along with mild carpal tunnel syndrome.” (Id.
at 299.) MRIs of Jaghamin's cervical spine and brain
showed a small nerve sheath lesion at the C5–C6 level and
some osteophyte formation at the C5–C6 level “producing
impingement on the left ventral aspect of the thecal
sac,” (id. at 301; see id. at 290), but there were no definitive
findings for localized nerve root impingement, central
canal stenosis, or other significant abnormalities, (see id.
at 301–02).
*6 In sum, the ALJ provided sufficient reasons for
discounting Dr. Hubicki's opinion, and her decision to do
so is supported by substantial evidence.
Turning to the opinion of Dr. Kendall, the ALJ accorded
“little weight” to the GAF scores of fifty that Dr. Kendall
assigned to Jaghamin, explaining that “the objective
medical evidence does not support more than moderate
limitations in any area of functioning.” (Id. at 23.)
Jaghamin argues that her testimony with respect to the
frequency and intensity of her anxiety and panic attacks
—which she testified she suffered seven to eleven times
per day—support Dr. Kendall's assessment, and, further,
the ALJ erred in discounting such testimony as the record
reflects that she made similar complaints to her treating
and examining medical sources. (See Dkt. No. 13 at 6–7.)
Jaghamin was initially assessed by Green County Mental
Health Center in May 2009 and complained of suffering
from depression and fourto-six panic attacks a day. (See
Tr. at 279–82.) At this time, Jaghamin was reported to be
non-psychotic and non-suicidal, with average intelligence,
fairly good insight and judgment, and intact impulse
control and memory functions. (See id. at 281.) Further,
her thought process was clear and logical, quality of
speech was normal and coherent, and she was able to care
for her basic activities of daily living. (See id. at 280–81.)
In June 2009, Jaghamin reported to Dr. Hubicki that her
panic attacks had decreased in frequency to three or four
times a day. (See id. at 401.) Jaghamin thereafter reported
an increase in her panic attacks in December 2009, but, in

April 2010, she reported experiencing fewer anxiety and
panic symptoms since she began a new medication, as well
as improved sleep. (See id. at 366.)
In addition, in April 2009, Jaghamin was evaluated
by consultative examiner Kerry Brand who noted that
Jaghamin was cooperative with an adequate manner of
relating, social skills, and overall presentation, although
her mood was depressed and anxious. (See id. at 231–
36.) Jaghamin's attention and concentration and recent
and remote memory skills were found to be intact,
intellectual functioning was estimated to be in the average
range, and insight and judgment were good. (See id. at
234.) Further, she was appropriately dressed with good
personal hygiene, her speech was intelligible and clear,
and thought processes were coherent and goal directed.
(See id. at 233.) Based on this examination, Dr. Brand
opined that Jaghamin retained the ability to follow and
understand simple directions and instructions, perform
simple and complex tasks with supervision, and learn new
tasks. (See id. at 234.) However, according to Dr. Brand,
Jaghamin may have moderate difficulty maintaining
attention and concentration and maintaining a regular
schedule and moderate to severe difficulty making
appropriate decisions, relating with others, and dealing
with stress. (See id.) In June 2009, Dr. Weiss reviewed
the evidence of record, including Jaghamin's reported
activities of daily living and Dr. Brand's evaluation, and
concluded that Jaghamin maintained the RFC “to carry
out work procedures with a consistent pace, understand
and remember simple instructions, interact and relate
adequately with coworkers and supervisors, adapt to
changes, and handle stress in the workplace.” (Id. at 259.)
He further concluded that “the opinion of [Dr. Brand] that
[Jaghamin] is markedly impaired in the ability to function
is not supported.” (Id.)
*7 Ultimately, the ALJ's decision to discount Dr.
Kendall's opinion that Jaghamin suffered “[s]erious
symptoms” or a “serious impairment in social,
occupational, or school functioning” is supported by
substantial evidence in the record. Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed., Text
Rev.2000); (see id. at 22–23).

D. Weighing Opinion Evidence from “Other Sources”
Lastly, Jaghamin asserts that the ALJ failed to “reference,
discuss or consider” the records or opinion of her
chiropractor, Thomas Tini. (Dkt. No. 13 at 7–8.) The

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Commissioner argues that, because Tini is not an
acceptable medical source and his opinion was on an issue
reserved to the Commissioner, the ALJ did not err. (See
Dkt. No. 17 at 20–21.) The court again agrees with the
Commissioner.
Overall, “the ultimate finding of whether a claimant
is disabled and cannot work ... [is] reserved to the
Commissioner.” Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir.1999) (internal quotation marks and citation omitted).
“That means that the Social Security Administration
considers the data that physicians provide but draws
its own conclusions as to whether those data indicate
disability.” Id. Thus, opinions from treating sources on
issues reserved to the Commissioner, i.e., dispositive
issues, are not given “any special significance.” 20
C.F.R. § 404.1527(d) (3). Moreover, chiropractors are
not “acceptable medical sources” and, therefore, their
treatment records “cannot establish the existence of
a medically determinable impairment,” but can only
“provide insight into the severity of the impairment(s) and
how it affects the individual's ability to function.” SSR
06–03p, 71 Fed.Reg. 45,593, 45,594 (Aug. 9, 2006); see 20
C.F.R. § 404.1513(a), (d)(1); O'Connor v. Chater, 164 F.3d
618, 1998 WL 695418, at *1 (2nd Cir. Sept. 25, 1998).
Here, in April 2009, Tini submitted a “narrative report” to
the New York State Office of Temporary and Disability
Assistance and opined that Jaghamin “has suffered a
permanent, partial disability.” jr. at 215–19.) Notably,
this opinion offers no assessment of Jaghamin's functional
capabilities and is, instead, on an issue reserved to the
Commissioner. See 20 C.F.R. § 404.1527(d). Accordingly,
it is evident that the opinion would not have changed
the outcome of the ALJ's decision and her failure to
explicitly discuss the report therefore constitutes harmless
End of Document

error. See Walzer v. Chater, No. 93 Civ. 6240, 1995 WL
791963, at *9 (S.D.N.Y. Sept. 26, 1995) (explaining that,
where discussion of an omitted medical report “would not
have changed the outcome of the ALJ's decision,” such
omission constitutes “harmless error”); see also Craig v.
Apfel, 212 F.3d 433, 436 (8th Cir.2000) (indicating that,
while the ALJ is obligated to fully develop the record, she
is not required to discuss all of the evidence submitted and
a failure to do so does not indicate that the evidence was
not considered).

E. Remaining Findings and Conclusions
*8 After careful review of the record, the court affirms
the remainder of the ALJ's decision as it is supported by
substantial evidence.

VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is
AFFIRMED and Jaghamin's Complaint (Dkt. No. 1) is
DISMISSED; and it is further
ORDERED that the Clerk close this case and provide
a copy of this Memorandum–Decision and Order to the
parties.

IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2013 WL 1292061

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6

Walzer v. Chater, Not Reported in F.Supp. (1995)
1995 WL 791963

1995 WL 791963
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Virginia WALZER, S.S. # XXX-XX-XXXX, Plaintiff,
v.
Shirley CHATER, Commissioner
of Social Security, Defendant.
Virginia WALZER, Plaintiff,
v.
Shirley S. CHATER, Commissioner
of Social Security, * Defendant.
No. 93 Civ. 6240 (LAK).
|
Sept. 26, 1995.
Attorneys and Law Firms
Irvin M. Portnoy, Neuburgh, NY for plaintiff.
Linda A. Riffkin, Asst. U.S. Attorney, New York City,
for defendant.

ORDER
KAPLAN, District Judge.
*1 Plaintiff objects to the Report and Recommendation
of Magistrate Judge Andrew J. Peck, dated August
17, 1995, which recommended that the Court grant
the defendant's motion for judgment on the pleadings
dismissing plaintiff's challenge to the denial of her claim
for disability benefits under the Social Security Act.
1. Plaintiff faults Judge Peck first for failing to discuss
Social Security Ruling (“SSR”) 83-12, 1983 WL 31253
(S.S.A.) But SSR 83-12 deals with individuals whose
medical assessments of residual functional capacity are
compatible with sedentary or light work except that the
person must alternate periods of sitting and standing,
a problem for those who cannot sit and stand for the
minimum periods required. Here the medical evidence
that plaintiff could sit for up to six hours per day is
consistent with the conclusion that she is capable of
performing sedentary work. See Ferraris v. Heckler, 728
F.2d 582, 587 n.3 (2d Cir. 1984). While it appears that
plaintiff must stand every 45 minutes or so in order to

relieve discomfort, there is no evidence to support the
plaintiff's reliance on SSR 83-12, as there is nothing to
suggest that a word processor is required to alternate
periods of standing and sitting in the manner discussed in
the Ruling.
2. Plaintiff argues next that Judge Peck erred in concluding
that the failure of the Administrative Law Judge (“ALJ”)
to discuss Dr. Leahy's report was harmless error. Dr.
Leahy's report states that plaintiff is able to sit for one
hour at a time or a total of six hours a day and that she
could not stand for more than a total of one hour a day.
Plaintiff contends that this report is inconsistent with the
findings of the ALJ and of Judge Peck, suggesting that it
is inconsistent with the conclusion that plaintiff is capable
of performing sedentary work.
Sedentary work involves sitting with occasional walking
and standing. 20 C.F.R. §§ 404.1567(a)(1994). According
to SSR 83-10, 1983 WL 31251 (S.S.A.), sitting generally
should total no more than about six and standing two
hours of an eight hour workday.
While it would have been desirable for the ALJ to discuss
Dr. Leahy's report, the report does not undermine his
conclusion. Rather, it is consistent with substantially all of
the other evidence in the case save the fact that Dr. Leahy's
estimate of the maximum duration of any tolerable sitting
period was longer, and thus less favorable to plaintiff,
than plaintiff's own estimate, which is the one relied
upon below. Moreover, the report was considered Appeals
Council in denying plaintiff's application for review of the
ALJ's decision. Hence, the ALJ's failure to discuss Dr.
Leahy's report, as Judge Peck concluded, was harmless
error.
3. Plaintiff finally claims that a vocational expert should
have been consulted pursuant to SSR 83-13 on the issue
of whether plaintiff's sit/stand limitations left her with
residual functional capacity. SSR 83-13, however, was
superseded by SSR 85-7, which in turn was superseded by
SSR 85-15. 1983 WL 31261, 56860 (S.S.A.) SSR 85-15,
1985 WL 56857 (S.S.A.), certainly did not require the ALJ
to consult a vocational specialist in this case.
*2 At bottom, this case is a simple matter. The plaintiff
contends that “Judge Peck [erred because he] failed to
articulate how a person who can only sit for one hour
at a time, and stand for a total of one hour in an eight

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Walzer v. Chater, Not Reported in F.Supp. (1995)
1995 WL 791963

hour day, could perform sedentary work (which requires
the ability to sit for six hours) in light of SSR 83-12 ...
“The difficulty with the position is that plaintiff's own
testimony permitted the ALJ to conclude that she could
sit for at least 45 minutes, and SSR 83-12 does not hold
that plaintiff must be able to sit without interruption for
six hours in order to be found capable of performing
sedentary work. The ALJ's conclusion that plaintiff failed
to sustain her burden of proving that she is unable to work
as a typist or word processor is supported by substantial
evidence. See Parker v. Sullivan, No. 91 Civ. 0981 (PNL),
1992 WL 77552 (S.D.N.Y. Apr. 8, 1992) (Leval, J.).
Magistrate Judge Peck's excellent Report and
Recommendation is adopted. Defendant's motion for
judgment on the pleadings is granted, and plaintiff's crossmotion is denied.
SO ORDERED.

REPORT AND RECOMMENDATION
PECK, United States Magistrate Judge:
Plaintiff Virginia Walzer brings this action, pursuant to
Section 205(g) of the Social Security Act (the “Act”),
42 U.S.C. § 405(g), challenging the final decision of the
Commissioner of Social Security (the “Commissioner”)
to deny her disability benefits. Both parties have crossmoved for judgment on the pleadings pursuant to Fed.
R. Civ. P. 12(c). For the reasons set forth below, I
recommend that the Court grant the Commissioner's
motion for judgment on the pleadings, and deny Walzer's
cross motion.

PROCEDURAL BACKGROUND
On October 15, 1991, Walzer filed an application for
disability insurance benefits. (Administrative Record
filed by the Commissioner [hereafter, “R.”], at 65-57.)
The application was denied initially (R. 77-79) and
on reconsideration. (R. 82-84.) Walzer subsequently
requested a hearing before an administrative law judge
(“ALJ”), which was conducted on December 17, 1992.
(R. 21-64.) On January 20, 1993, the ALJ issued his
decision finding that Walzer was not disabled. (R. 11-18.)
The ALJ's decision became the final decision of the

Commissioner when the Appeals Council denied Walzer's
request for review on July 14, 1993. (R. 4-5.) This appeal
followed. The issue before the Court is whether the
Commissioner's decision that plaintiff Walzer was not
disabled is supported by substantial evidence.

FACTS
Plaintiff's Testimony Before the ALJ
Walzer was represented at the hearing before the ALJ
on December 17, 1992 by the same counsel representing
her in this case. (R. 13, 21.) Ms. Walzer testified at
the administrative hearing that she was born December
26, 1932 and was diagnosed at birth with cerebral
palsy. (R. 25, 40.) Ms. Walzer attended a special school
from 1937 to 1939, but was otherwise educated in the
mainstream public system, and attended one year of
community college. (R. 26, 95.) Walzer worked full
time between February 1977 and April 1, 1988 for
Western Union in many capacities, including as a telex
operator, word processor and personnel assistant. (R.
38-39.) Her most recent job for Western Union, as a
personnel assistant, entailed in-putting information into
an employee's personnel files and physically lifting and
filing paper records. (R. 36-37.) Walzer testified that she
had this position for two years, but was fired when she
was no longer capable of lifting file boxes weighing over
20 pounds. (R. 37.)
*3 After leaving Western Union, Walzer testified that she
worked in her husband's business at home from January
1990 to September 1990. (R. 27, 95.) Walzer answered the
phones, took mail orders and went to the post office to
pick up and deliver mail and small packages. (R. 27-28.)
She testified that her husband decided to discontinue the
business because it could not support the family as a main
source of income and Mr. Walzer obtained a full time job
for New York state. (R. 32-33.) Further, both Ms. Walzer
and her husband testified that she had trouble with the
stair climbing involved in the business and she frequently
misplaced business messages. (R. 33-35, 56-60.)
Walzer testified that her cerebral palsy affected the left
side of her body below the waist. (R. 40.) She further
stated that she had difficulty standing for long periods
because she had “a lot of pain on the right side in, in
the sacroiliac.” (R. 41.) She also testified that she had

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problems lifting or sitting too long while at Western
Union. (R. 42.)
Walzer stated that she previously had seen a chiropractor,
but stopped a couple of years ago because her new group
health insurance wouldn't pay for the treatments. (R. 43.)
Instead, she did exercises on her own to strengthen her
muscles. (R. 43.) She further asserted that she is able to sit
in a chair for about 45 minutes without interruption, stand
in one spot for about 10 minutes at a time, walk about 2-3
blocks, and lift ten pounds “with difficulty.” (R. 43-44.)
The only medication she takes is aspirin. (R. 47.)
Walzer testified that her daily activities include playing
piano, watching television “a lot,” listening to radio
talk shows, swimming, light household cleaning, visiting
her grandchildren, and participating in a senior citizen
exercise class. (R. 48-51; 109.)

The Medical Evidence
The medical evidence in the record consists of two medical
reports made by treating physicians, one report by a
consultative examiner, and one report by a physical
therapist.
Walzer's first treating physician, Dr. Sanford Kryger,
saw Walzer initially in October 1988, two years before
her alleged onset date of disability. (R. 113.) At that
time, Walzer received emergency room treatment for a
fractured K-4 vertebrae she had sustained after falling
down some stairs. (R. 113, 130-34.) Dr. Kryger wrote in
his treatment notes for November 1, 1988 that Walzer
was using a corset and was able to walk. (R. 131.) Walzer
had experienced one episode of numbness which had
been “totally resolved.” (Id.) Three weeks later Walzer's
pain had decreased, but she continued to use the corset.
(Id.) Dr. Kryger wrote that Walzer stated that she was
feeling “good,” exhibited good trunk range of motion and
was neurologically intact. (R. 132.) Dr. Kryger started
Walzer “on a PT [physical therapy] program which she
tolerated well and got her back to a relatively functioning
status.” (R. 113.)
Dr. Kryger treated plaintiff Walzer again in August 1991,
after she fell again, injuring her knee and leg. (R. 113.) He
stated that “neurovascular examination was intact,” and
that plaintiff Walzer had “moderate tenderness into her
hamstrings with the complete inability to straighten the leg
and a moderate antalgic limp.” (Id.) Dr. Kryger further

noted that Walzer developed “some moderate ecchymosis
and swelling in the area with a moderate amount of pain
and decreased motion in the leg.” (Id.) Dr. Kryger again
prescribed physical therapy. (Id.)
*4 At the time of his last consultation with Walzer in
October 1991, Dr. Kryger noted that Walzer's condition
was improved, but she was still complaining of moderate
weakness in her leg with a mild antalgic limp and local
tenderness. (Id.) He further noted that she “cannot stand
for a prolonged period of time and can certainly not do
any lifting.” (Id.) He concluded that he was not sure as to
how long her condition would take to resolve. (Id.)
Dr. Stuart Lestch, a consultative physician, examined
Walzer in February 1992. (R. 115.) Dr. Lestch concluded
that Walzer's symptoms of a “somewhat spastic, slightly
scissoring type gait” was consistent with “cerebral palsy
as manifested by spastic diplegia.” (R. 116.) 1 Dr. Lestch
further noted the following: Walzer had “no organic
mental deficit or aphasia”; Walzer could walk on her toes,
but was unable to walk on her heels; she had “no weakness
in the upper extremities”; there is “increased tone in the
lower extremities with moderate” weakness of the toes and
ankles of both feet and “minimal” weakness of the hip
flexors and hamstrings. (R. 115-16.)
Walzer's second treating physician, Dr. Mary Leahy, saw
Walzer up until November 1992. 2 Dr. Leahy noted in an
evaluation that Walzer was injured at birth in a forceps
delivery which explained her delayed motor control. (R.
141.) She further wrote that Walzer had surgery at age
four for muscle atrophy but still has trouble walking and
atrophy of the left leg. (Id.) Dr. Leahy opined that Walzer
was able to sit for an hour at a time for a total of six hours,
but was not able to stand or walk for more than a total of
one hour in an eight hour day. (R. 139.)
Dr. Leahy further noted that plaintiff Walzer could lift
up to five pounds “frequently” and up to ten pounds
occasionally, but had “gait difficulty” and “trouble
standing from a seated position.” (Id.) Dr. Leahy reported
that plaintiff could not squat, crawl, or climb, but was able
to grasp, push, pull, and perform fine manipulation on
a regular basis. (R. 140.) Due to weakness and atrophy
in the left leg, moreover, Walzer was not able to perform
repetitive movements using foot controls with her left leg,
although her right leg could so move. (Id.)

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Walzer v. Chater, Not Reported in F.Supp. (1995)
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Finally, the record contained the evaluation of Ronni
Silver, a physical therapist who rendered outpatient care
to Walzer on twelve occasions between October 1, 1991
and November 22, 1991. (R. 127-29.) Silver also noted
Walzer's scissoring gait and weakness in her left leg. (Id.)

The ALJ's Decision
The ALJ found that plaintiff Walzer's condition of
cerebral palsy was a “severe impairment,”but that it did
not meet or equal the level of severity of any impairment
contained in Appendix 1, Subpart P, of Social Security
Regulations No. 4. (R. 14-15.) Specifically, the ALJ found
that Walzer's condition did not meet the requirements of
Listing 1.05 (disorders of the spine) 3 or Listing 11.07
(Cerebral palsy) 4 (Id.):
*5 Listing 1.05 requires specific
findings including 50% loss of
vertical body height which has not
been demonstrated in the instant
case, or in subsection C evidence of
radiculopathy including significant
motor loss, muscle weakness,
and sensory and reflex deficits....
Regarding her cerebral palsy,
Listing 11.07 refers back to Listing
11.04B dealing with disorganization
of motor function. That listing
requires that there be significant
and persistent disorganization of
motor function in two extremities
resulting in sustained disturbance
of gross dexterous movements
or gait and station. There is
absolutely nothing in the record
to show significant and persistent
disorganization of functioning in
the lower extremities or that there
is significantly disturbed gait and
station such as to require the
claimant to use an assistive device.
(R. 15.)
Further, the ALJ concluded that, although Walzer's
condition was severe, he could “find no reason why
claimant would be unable to return to her past relevant
work.” (Id.) In so finding, the ALJ noted that Walzer
had an excellent work history, having worked from 1951

through 1955 and again from 1976 through 1988, despite
“her cerebral palsy and the effect that it had on her
lower extremities.” (R. 14-15.) The ALJ further based this
opinion on the fact that Walzer's condition required only
a “brief” and “conservative” treatment following both her
1988 and 1991 falls. (R. 15.) Specifically, the ALJ noted
that Walzer never required hospitalization, medication,
significant diagnostic test work-up, or an active ongoing course of treatment after her physical therapy. (Id.)
Moreover, the only limitations placed on Walzer was
Dr. Kryger's mandate that “she avoid prolonged standing
and do no lifting.” (Id.) The ALJ further concluded that
Walzer's condition had not significantly deteriorated over
the years. (Id.) The ALJ based this opinion on Walzer's
admission to the state consulting physician, Dr. Lestch,
that although her difficulty walking had worsened with
age, exercise and physical therapy had improved her
status. (Id.)
The ALJ found Walzer's own testimony concerning
her limitations “not inconsistent” with an ability to
perform her past work as a typist and word processor,
since individuals performing those jobs do not sit for
eight hours without interruption. (R. 17.) Further, the
ALJ found that Walzer's daily activities (i.e., driving,
household chores, and “sedentary activities” including
watching television, sewing, reading, and exercising)
indicated her ability to return to her past work.
(Id.) The ALJ noted that Walzer was not suffering
from severe or incapacitating pain, and was not
receiving medical treatment or therapy at the time
of the hearing. (Id.) Finally, the ALJ noted that
Walzer's allegation of memory loss and concentration
difficulties were not substantiated by her medical
record. (Id.) He therefore concluded that Walzer's
testimony concerning her symptoms and limitations
appear “somewhat exaggerated and inconsistent with the
other evidence of record including the paucity of the
treatment sought and the conservative nature of the
treatment rendered to date.” (R. 18.)
*6 Thus, the ALJ concluded that Walzer had the residual
functional capacity to perform work related activities
except for work involving sustained standing or lifting.
(Id.)

ANALYSIS

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I. THE APPLICABLE LAW
A. Definition of Disability
For Social Security disability insurance benefits (“SSI”)
purposes, a person is considered disabled when he or she
is unable “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), 1382c(a)(3)(A). That impairment
must be of such severity that the person
is not only unable to do his previous
work but cannot, considering
his age, education, and work
experience, engage in any other kind
of substantial gainful work which
exists in the national economy,
regardless of whether such work
exists in the immediate area in which
he lives, or whether a specific job
vacancy exists for him, or whether
he would he hired if he applied for
work.
42 U.S.C. § 423(d)(2)(A).
In determining whether an individual is disabled for
SSI purposes, the Secretary must consider: “(1) objective
medical facts; (2) diagnoses or medical opinions based on
such facts; (3) subjective evidence of pain or disability
testified to by the claimant or others; and (4) the claimant's
educational background, age and work experience.” E.g.,
Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
1983)(per curiam); Carroll v. Secretary of Health & Human
Services, 705 F.2d 638, 642 (2d Cir. 1983).
A court's review of the Secretary's final decision is limited
to determining whether there is “substantial evidence” in
the record to support such determination. E.g., Rivera
v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur
v. Heckler, 722 F.2d at 1037; Dumas v. Schweiker, 712
F.2d 1545, 1550 (2d Cir. 1983); 42 U.S.C. §§ 405(g).
The Supreme Court has defined “substantial evidence” as
“more than a mere scintilla” and “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).

The Secretary's regulations set forth a five-step sequence
to be used in evaluating disability claims. 20 C.F.R. §§
404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140,
107 S. Ct. 2287, 2291 (1987). The Second Circuit has
articulated the five steps as follows:
[1] First, the Secretary considers
whether the claimant is currently
engaged in substantial gainful
activity. [2] If he is not, the Secretary
next considers whether the claimant
has a “severe impairment” which
significantly limits his physical
or mental ability to do basic
work activities. [3] 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 Secretary
will consider him disabled without
considering vocational factors such
as age, education, and work
experience; the Secretary presumes
that a claimant who is afflicted with
a “listed” impairment is unable to
perform substantial gainful activity.
[4] 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. [5] Finally,
if the claimant is unable to perform
his past work, the Secretary then
determines whether there is other
work which the claimant could
perform.
*7 Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
The claimant bears the burden of proof as to the first
four of these steps. Id. If the claimant meets the burden
of proving that she cannot return to her past work, the
Secretary has the burden of proving the last step, that there
is other work that the claimant can perform. Id.

B. The Treating Physician's Rule

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The “treating physician's rule” is a series of regulations
set forth in 1993 by the Secretary in 20 C.F.R. § 404.1527
detailing the weight to be accorded a treating physician's
opinion. Specifically, the Secretary's regulations provide
that:
If we find that a treating source's
opinion on the issue(s) of the
nature and severity of your
impairment(s) is well-supported by
medically acceptable clinical and
laboratory diagnostic techniques
and is not inconsistent with the other
substantial evidence in your case
record, we will give it controlling
weight.
20 C.F.R. § 404.1527(d)(2). Further, the regulations
specify that when controlling weight is not given a
treating physician's testimony (i.e., because it is not “well
supported” by other medical evidence), the Court should
consider the following factors in determining the weight
to be given such testimony: (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. Id.
The Commissioner's current “treating physician”
regulations were approved by the Second Circuit in
Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).

II. APPLICATION OF THE FIVE-STEP SEQUENCE
TO WALZER'S CLAIM
1. Walzer was not Engaged in Substantial Gainful
Activity
The first inquiry is whether Walzer was engaged in
substantial gainful activity. “Substantial gainful activity”
is defined as work that involves “doing significant and
productive physical or mental duties” and “[i]s done (or
intended) for pay or profit.” 20 C.F.R. § 404.1510 (1993).
It is undisputed that plaintiff Walzer was unemployed
during the applicable time period (the period since
September 2, 1990). (R. 17.)

2. Walzer Does Not Have A Severe Physical
Impairment That Significantly Limits Her Ability to do
Basic Work Activities
The next step of the analysis is to determine
whether Walzer has a severe physical impairment that
“significantly limit(s) the applicants' physical or mental
ability to do basic work activities.” 20 C.F.R. §
404.1521(a).
The “ability to do basic work activities” is defined as
“the abilities and aptitudes necessary to do most jobs.” 20
C.F.R. § 404.1521(b). “Basic work activities” include:
... walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying,
or handling ... seeing, hearing,
and speaking ... [u]nderstanding,
carrying out, remembering simple
instructions ... [u]se of judgment ...
[r] esponding appropriately to
supervision, co-workers and usual
work situations.
*8 20 C.F.R. § 404.1521(b)(1)-(5). Walzer has the burden
of establishing a prima facie case by showing that the
impairment prevents her return to her prior employment.
E.g., Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
The ALJ found that Walzer's history of cerebral palsy
constitutes a “severe” impairment. (R. 14.) Nevertheless,
the ALJ found that Ms. Walzer “has the residual
functional capacity to perform work activity except for
that requiring prolonged standing or lifting. (R. 16, 18.)
Ms. Walzer had the burden of proof on this issue, and I
find that there is substantial evidence to support the ALJ's
finding that Ms. Walzer had the ability to perform basic
work activities.
In evaluating whether Walzer was capable of performing
both “basic work activities” and, specifically, her previous
work as a typist and word processor, the ALJ considered
the medical records and evidence from (1) Dr. Kryger,
one of Walzer's two treating physicians, (2) Dr. Stuart
Lestch, the state agency consultant who examined Walzer,
(3) Ronnie Silva, a physical therapist who treated Walzer,
and (4) Walzer herself. (R. 14-17.)
A review of these three medical records demonstrates
that all agreed that Walzer had gait difficulty and some

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weakness in her legs due to her congenital cerebral palsy.
However, with the exception of Dr. Kryger, who noted
that Walzer “cannot stand for a prolonged period of
time and can certainly not do any lifting” (R. 113), none
of these other medical personnel placed any restrictions
on Walzer's ability to perform sedentary activities. In
fact, Dr. Kryger found that Walzer exhibited good trunk
range of motion and was neurologically intact. (R. 132.)
Dr. Lestch noted that while Walzer had a “somewhat
spastic, slightly scissoring type gait” consistent with
cerebral palsy, she had “no organic mental deficit,” no
weakness in her upper extremities, and only moderate to
minimal weakness in her toes, ankles and hip flexors and
hamstrings bilaterally. (R. 115-16.) The ALJ further found
significant that since her alleged onset of disability in 1990,
Walzer has received only two months of treatment ending
in November 1991, and had not required or received any
further treatment since. (R. 17.)
Finally, the ALJ considered the testimony of plaintiff
Walzer herself, who complained of back pains and
impairment of concentration and memory. Walzer
testified that, as a result of her pain, she could not:
stand for more than 10 minutes, sit for more than 45
minutes, walk more than two to three blocks, or lift more
than 10 pounds without difficulty. (R. 43-44.) Walzer
testified, however, that her daily activities included driving
short distances, performing light household chores,
swimming, sewing, watching television and reading. (R.
48-51.) She admitted that she took no medication except
aspirin and that she had not seen a doctor in over a
year. (R. 43, 47.) Based on the medical evidence and
Walzer's own testimony, the ALJ concluded that Walzer's
testimony concerning her symptoms and limitations
“appear somewhat exaggerated and inconsistent with the
other evidence of record including the paucity of the
treatment sought and the conservative nature of the
treatment rendered to date.” (R. 18.)
*9 On this appeal, Walzer asserts that the ALJ's
conclusion as to her ability to perform sedentary work was
erroneous in that the ALJ failed to consider the testimony
of a second treating physician, Dr. Mary Leahy. As a
treating physician, Dr. Leahy's testimony has controlling
weight, so long as it is supported by medically acceptable
diagnostic techniques and not inconsistent with the other
substantial evidence in the record. Dr. Leahy concluded
that Walzer was able to sit for an hour at a time for a
total of six hours a day, but was not able to stand or walk

for more than one hour in an eight hour day. (R. 139.)
Dr. Leahy further noted that Walzer could lift up to ten
pounds, but had “gait difficulty” and “trouble standing
from a sitting position.” (R. 139.)
While the ALJ should have discussed Dr. Leahy's report
in his decision (even though her report was received after
the close of the hearing), the ALJ's failure to do so was
harmless error, since his written consideration of Dr.
Leahy's report would not have changed the outcome of
the ALJ's decision. Essentially, Dr. Leahy's report as to
Walzer's gait difficulty was consistent with all the other
medical testimony considered by the ALJ. Plaintiff Walzer
concedes as much. (Plf's Brief at 4: “The report of Dr.
Mary Leahy ... is similar to those by [Walzer's] other
treatment advisers.”) The only difference was that Dr.
Leahy specified the amount of time Walzer could remain
in a sitting or standing position before she had to shift
positions due to pain. However, Dr. Leahy's report did
not preclude the ALJ's finding that Walzer could perform
sedentary activity.
Sedentary work is defined as involving “lifting no more
than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small
tools.” 20 C.F.R. §§ 404.1567(a) & 416.967(a). Further,
a sedentary job is defined as one which involves sitting,
although “a certain amount of walking and standing
is often necessary in carrying out job duties.” Id. It
is generally agreed by both the Commissioner and the
Second Circuit that sedentary work involves sitting six
hours out of an eight hour work day. See Ferraris v.
Heckler, 728 F.2d 582, 587 n.3 (2d Cir. 1984).
As so defined, there is no reason that Ms. Walzer cannot
return to her sedentary position as a word processor. Dr.
Leahy noted that Walzer was able to sit for an hour at
a time for a total of six hours, and could stand or walk
for up to an hour in an eight-hour working day. (R. 139.)
Further, Dr. Leahy noted that Walzer could lift up to
ten pounds. (Id.) These abilities qualify Ms. Walzer for
sedentary work under the above definition.
Although Ms. Walzer testified that she could only sit in a
chair for forty five minutes at a time before experiencing
pain requiring her to stand or move, the ALJ was free
to deem Dr. Leahy more credible than plaintiff Walzer.
See, e.g., Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.
1979) (ALJ has discretion to evaluate the credibility of

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a claimant and to arrive at an independent judgment in
light of medical findings and other evidence). And, as the
Second Circuit has noted, “disability requires more than
mere inability to work without pain.” Dumas v. Schweiker,
712 F.2d 1545, 1552 (2d Cir. 1983).
*10 Furthermore, contrary to plaintiff's assertions, work
of a secretarial nature certainly would allow Ms. Walzer
to periodically stretch and move around. See, e.g., Parker
v. Sullivan, M.D., 91 Civ. 0981, 1992 WL 77552 (S.D.N.Y.
April 8, 1992) (Court affirmed ALJ's decision that person
only able to sit for 1 ½ hours at a time was capable of
resuming secretarial work).

3. Walzer Does Not Have a Disability Listed in
Appendix 1 of the Regulations 5
The third step of the five part test is whether Walzer had
an impairment listed in Appendix 1 of the regulations.
The ALJ found that Walzer never met or equaled the
severity of the impairments contained in either Listing
1.05 referable to disorders of the spine or Listing 11.07
referable to cerebral palsy. (See pages 8-9 and nn.3-4,
above.)
The Court agrees with the ALJ's analysis that there is no
evidence in the record that Walzer met the requirements
under Listing 1.05 or 11.07. Although there was medical
evidence that Walzer fractured her K-4 vertebrae in 1988,
there was no evidence of 50% vertebral shrinkage or
other lasting effects, as required by Listing 1.05. (See n.3,
above.) In fact, Dr. Kryger's testimony was that Walzer
had a good trunk range of motion and was neurologically
intact. (R. 132.) Similarly, neither Dr. Leahy nor Dr.
Lestch commented on any permanent spinal damage or
movement limitations.
Likewise, Walzer cannot meet the requirements of Listing
11.07 applicable to cerebral palsy. (See n.4, above.) There
is no evidence that Ms. Walzer has an IQ of 69 or less or
has emotional instability or abnormal behavior patterns.
Further, although Ms. Walzer and her husband testified
that she has some memory loss, the medical testimony
was that Walzer had “no organic mental deficit or
aphasia.” (R. 116.) Thus, Walzer's alleged problems would
not constitute “significant interference in communication
due to speech, hearing, or visual defect.” (Listing 11.07(c),
n.4 above.)

Finally, although there is evidence of some muscular
atrophy in Walzer's left leg (R. 140) and “moderate”
weakness of her toes and ankles (R. 116), these
difficulties would not rise to the level of “significant
and persistent disorganization of motor function in
two extremities.” (Listing 11.07(D), incorporating Listing
11.04(B), n.4 above.) The evidence is clear that Ms. Walzer
could walk without assistance, although for limited
distances. Further, there was no evidence of upper body
weakness and Walzer was able to grasp, push, pull, and
perform fine manipulation on a regular basis. (R. 140.)
The Court further notes that plaintiff Walzer neither
contests the ALJ's analysis, nor proffers in her brief
any evidence that her condition met or equaled the
requirements of any impairment in Appendix 1 to 20
C.F.R. Part 404, Subpart P.
I recommend that the Court find that there is substantial
evidence supporting the ALJ's finding that Walzer did not
meet the requirements.

4. Walzer Has the Ability to Perform Her Past Work
*11 The fourth prong of the five part analysis is whether
plaintiff had the residual functional capacity to perform
her past work.
The ALJ found that in spite of her severe impairments,
he could “find no reason why claimant would be unable
to return to her past relevant work within the meaning of
20 CFR 404.1520(e).” (R. 15.) Specifically, the ALJ found
that Walzer was able to perform her past relevant work
as a typist and word processor, despite her limitations as
to prolonged standing and lifting, since work as a typist
did not require such activities. (R. 18.) For the reasons
set forth in my discussion of the second prong (at pages
15-20 above), I recommend that the Court find that the
ALJ's decision that Walzer is able to return to her previous
occupation as a word processor and typist is supported by
substantial evidence.
It is not necessary to discuss the fifth prong of this inquiry,
since it only applies if the claimant is unable to perform
her past work. Rivera v. Schweiker, 717 F.2d 719, 722 (2d
Cir. 1983); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982); Velk v. Shalala, 93 Civ. 3111, 1995 WL 217516 at
*5 (S.D.N.Y. April 11, 1995).

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CONCLUSION

failure to note Dr. Leahy's testimony is harmless
error. See pages 18-20, below.

3

Upon review of the record, I find that the Commissioner
has presented substantial evidence that Ms. Walzer
was not under a disability and had the residual
functional capacity to perform work-related activities
and, specifically, her past secretarial work. Accordingly,
I recommend that the Court grant the Commissioner's
motion for judgment on the pleadings and deny Walzer's
cross-motion.

FILING OF OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties have
ten (10) days from receipt of this report to file written
objections to the foregoing report. See also Fed. R. Civ.
P. 6. Such objections shall be filed with the Clerk of the
Court with courtesy copies delivered to the chambers of
the Honorable Lewis A. Kaplan, 500 Pearl Street, Room
1310, and to the chambers of the undersigned at 40 Centre
Street, Room 540. Any requests for an extension of time
for filing objections must be directed to Judge Kaplan.
Failure to file objections to this Report within ten days
may result in a waiver of those objections for purposes
of appeal. See Small v. Secretary of Health & Human
Services, 892 F.2d 15, 16 (2d Cir. 1989); see also, e.g.,
Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE
AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054
(2d Cir. 1993), cert. denied, 115 S. Ct. 86 (1994); Frank
v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 113
S. Ct. 825 (1992); Wesolek v. Canadair Ltd., 838 F.2d 55,
57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234,
237-38 (2d Cir. 1983).

4

( * Defendant)
1

2

Spastic diplegia is a “spastic weakness of the limbs ...
present from birth.” Churchill's Illustrated Medical
Dictionary 525 (1989).
The report from Dr. Leahy was submitted to the
ALJ by Walzer's counsel after the close of the ALJ's
hearing. (See R. 138.) The ALJ did not mention the
testimony of Dr. Leahy in his decision. The ALJ's

5

Listing 1.05 requires:
A. Arthritis manifested by ankylosis or fixation of
the cervical or dorsolumbar spine at 30 degrees
of more of flexion measured from the neutral
position, with X-ray evidence of:
1. Calcification of the anterior and lateral
ligaments; or
2. Bilateral ankylosis of the sacroiliac joints with
abnormal apophyseal articulations; or
B. Osteoporosis, generalized (established by Xray) manifested by pain and limitation of back
motion and paravertebral muscle spasm with Xray evidence of either:
1. Compression fracture of a vertebral body with
loss of at least 50 percent of the estimated neither
of the vertebral body prior to the compression
fracture with no intervening direct traumatic
episode; or
2. Multiple fractures of vertebrae with no
intervening direct traumatic episode; or
C. Other vertebrogenic disorders (e.g., herniated
nucleus pulposus, spinal stenosis) with the
following persisting for at least 3 months despite
prescribed therapy and expected to last 12
months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation
of motion in the spine; and
2. Appropriate radicular distribution of
significant motor loss with muscle weakness and
sensory and reflex loss.
Listing 11.07 requires:
A. IQ of 69 or less; or
B. Abnormal behavior patterns, such as
destructiveness or emotional instability: or
C. Significant interference in communication due
to speech, hearing, or visual defect; or
D. Disorganization of motor function as described
in 11.04B
11.04(B) reads:
B. Significant and persistent disorganization of
motor function in two extremities, resulting in
sustained disturbance of gross and dexterous
movements, or gait and station (see 11.00C).
Because Walzer did not meet her burden of showing
that she could not perform “basic work,” it is not
necessary to reach the remaining steps of the five part
analysis. I discuss the third and fourth steps, however,
to give the Court a complete analysis for review.

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9

Walzer v. Chater, Not Reported in F.Supp. (1995)
1995 WL 791963

All Citations
Not Reported in F.Supp., 1995 WL 791963

Footnotes

*

Defendant was formerly Donna E. Shalala, Secretary of Health and Human Services. Pursuant to P.L. No. 103-296,
however, the Social Security Independence and Program Improvement Acts of 1994, the function of the Secretary of
Health and Human Services in Social Security cases was transferred to the Commissioner of Social Security effective
March 31, 1995. In accordance with Section 106(d) of P.L. 103-296, Shirley S. Chater has been substituted for Donna
E. Shalala. No further action is necessary to continue this suit. (Id.)

End of Document

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10

Dombrowski v. Astrue, Not Reported in F.Supp.2d (2013)
2013 WL 528456

2013 WL 528456
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Scott DOMBROWSKI, Plaintiff,
v.
Michael J. ASTRUE, Commissioner
of Social Security, Defendant.
No. 5:12–cv–638 (GLS).
|
Feb. 11, 2013.
Attorneys and Law Firms
Olinsky Law Group, Karen S. Southwick, Esq., Tanisha
T. Bramwell, Esq., of Counsel, Syracuse, NY, for the
Plaintiff.
Hon. Richard S. Hartunian, United States Attorney,
Katrina M. Lederer, Special Assistant U.S. Attorney,
of Counsel, Syracuse, NY, Steven P. Conte, Regional
Chief Counsel, Social Security Administration, Office of
General Counsel, Region II, New York, NY, for the
Defendant.

II. Background
On October 29 and 31, 2008, Dombroski filed applications
for DIB and SSI under the Social Security Act (“Act”),
alleging disability beginning February 1, 2007. (See Tr. 2
at 48–49, 137–141.) After his applications were denied,
Dombroski requested a hearing before an Administrative
Law Judge (ALJ), which was held on April 6, 2010. (See
id. at 9, 20–47, 50–59.) On April 12, 2010, the ALJ issued
a decision denying the requested benefits, which became
the Commissioner's final decision upon the Social Security
Administration Appeals Council's denial of review. (See
id. at 1–3, 9–19.)
2

Page references preceded by “Tr.” are to the
Administrative Transcript. (See Dkt. No. 8.)

Dombroski commenced the present action by filing
a Complaint on April 13, 2012, seeking review of
the Commissioner's determination. (See Compl.) The
Commissioner filed an answer and certified copy of the
administrative transcript. (See Dkt. Nos. 7, 8.) Both
parties, seeking judgment on the pleadings, filed a brief.
(See Dkt. Nos. 11, 12.)

III. Contentions
MEMORANDUM–DECISION AND ORDER
GARY L. SHARPE, Chief Judge.
I. Introduction
*1 Plaintiff Scott Dombroski 1 challenges the
Commissioner of Social Security's denial of disability
insurance benefits (DIB) and supplemental security
income (SSI), seeking judicial review under 42 U.S.C. §§
405(g) and 1383(c)(3). (See Compl. at 1, Dkt. No. 1.)
After reviewing the administrative record and carefully
considering Dombroski's arguments, the Commissioner's
decision is affirmed and Dombroski's Complaint is
dismissed.
1

It appears as though plaintiff's surname is misspelled
in the Complaint and, subsequently, on the docket.
While no change to the docket is necessary, the court
refers to plaintiff throughout as “Dombroski.”

Dombroski contends that the Commissioner's decision
was the product of legal error and is unsupported
by substantial evidence. (See generally Dkt. No. 11.)
Specifically, he claims that the ALJ: (1) improperly
discounted the weight assigned to the opinions of treating
psychiatrist Mitchell Langbart; (2) failed to apply the
appropriate legal standard in assessing his credibility;
and (3) posed an incomplete hypothetical question to
the vocational expert (VE) at step five of the sequential
analysis. (See id. at 9–21.) The Commissioner counters
that the ALJ employed the proper legal standards and
that his decision is supported by substantial evidence. (See
generally Dkt. No. 12.)

IV. Facts
The evidence in this case is undisputed and the court
adopts the parties' factual recitations. (See Dkt. No. 11 at
2–9; Dkt. No. 12 at 1.)

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1

Dombrowski v. Astrue, Not Reported in F.Supp.2d (2013)
2013 WL 528456

V. Standard of Review
The standard for reviewing the Commissioner's final
decision under 42 U.S.C. §§ 405(g) and 1383(c)(3) is well
established and will not be repeated here. For a full
discussion of the standard and the five-step process used
by the Commissioner in evaluating whether a claimant
is disabled under the Act, the court refers the parties
to its previous opinion in Christiana v. Comm'r of Soc.
Sec. Admin., No. 1:05–CV–932, 2008 WL 759076, at *1–
2 (N.D.N.Y. Mar. 19, 2008).

VI. Discussion
A. Treating Physician
1. July 14, 2009 Opinion
Dombroski argues first that the ALJ provided inadequate
explanation in support of his decision to accord portions
of Dr. Langbart's July 14, 2009 medical source statement
“little weight.” (Dkt. No. 11 at 11–16.) The Commissioner
counters that the ALJ properly applied the treating source
rule, and that his decision to discount the weight given
to Dr. Langbart's opinion is supported by substantial
evidence. (See Dkt. No. 12 at 5–8.) The court agrees with
the Commissioner.
*2 Controlling weight will be given to a treating source's
opinion on the nature and severity of a claimant's
impairments where it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial
evidence.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c) (2);
see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004).
When a treating source's opinion is given less than
controlling weight, the ALJ is required to consider the
following factors: the length, nature and extent of the
treatment relationship; the frequency of examination;
evidentiary support offered; consistency with the record
as a whole; and specialization of the examiner. 20 C .F.R.
§§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). The ALJ must
provide “ ‘good reasons' for the weight given to the
treating source's opinion.” Petrie v. Astrue, 412 F. App'x
401, 407 (2d Cir.2011) (citations omitted). “Nevertheless,
where ‘the evidence of record permits [the court] to glean
the rationale of an ALJ's decision,” it is not necessary

that the ALJ “ ‘have mentioned every item of testimony
presented to him or have explained why he considered
particular evidence unpersuasive or insufficient to lead
him to a conclusion of disability.’ “ Id. (citation omitted).
The ALJ assigned “little weight” to Dr. Langbart's July 14,
2009 opinion “that [Dombroski] has extreme limitations
in [his] ability to interact with [the] public and co-workers
and marked limitations in [his] ability to interact with
supervisors and respond appropriately to [the] pressures
of work.” (Tr. at 17.) The ALJ concluded that the
functional limitations articulated by Dr. Langbart were
“not supported by findings on mental status examination
and are inconsistent with the claimant's very good
activities of daily living.” (Id.) In reaching that conclusion,
the ALJ explicitly referenced 20 C.F.R. §§ 404.1527 and
416.927, as well as relevant social security rulings. (See
id. at 13.) The ALJ also undertook a thorough discussion
of the medical and testimonial evidence of record which
suggested impairments less severe than those articulated
by Dr. Langbart. (See id. at 13–17.) Finally, it is evident
from the ALJ's direct citation to treatment notes spanning
an eight month period, (see id. at 17), that the nature and
duration of Dr. Langbart's treatment relationship with
Dombroski were properly considered. As it is clear that
he properly applied sections 404.1527(c) and 416.927(c),
the ALJ did not err in failing to methodically discuss
each individual factor, and his assessment of Dr. Lanbart's
July 2009 opinion is legally sound. See SSR 06–03p, 71
Fed.Reg. 45,593, 45,596 (Aug. 9, 2006) (“Not every factor
for weighing opinion evidence will apply in every case.”).
Dombroski's argument that the ALJ's decision to discount
Dr. Langbart's assessment is not supported by substantial
evidence is similarly unavailing. First, it is important to
note that the ALJ did not discount Dr. Langbart's opinion
wholesale, but rather adopted many of the limitations
adduced by him in finding that Dombroski could perform
only “simple, routine, low-stress tasks with limited general
public contact.” (Tr. at 13.) Dr. Langbart himself later
concluded that Dombroski did not have “extreme”
limitations in his ability to interact appropriately with
the public or with co-workers. (Compare id. at 280–81,
with id. at 309–11.) In fact, Dr. Langbart's subsequent
March 23, 2010 medical source statement indicated less
severe limitations than those contained in the July 2009
assessment in all but two functional categories. (See id.)
While Dr. Langbart opined that Dombroski suffered
“marked” limitations in his ability to interact with a

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Dombrowski v. Astrue, Not Reported in F.Supp.2d (2013)
2013 WL 528456

supervisor and handle work pressure, (see id. at 281,
310), psychological consultant T. Inman–Dundon, Ph.D.,
found only “moderate” restrictions in those areas, (see
id. at 268). Additionally, Dombroski was capable of a
wide range of daily activities, (see id. at 17), and, when
pressed with a deadline to finish construction of a haunted
house that “he and his parents offer[ed] to the public,” Dr.
Langbart noted that he worked “industriously at it,” (id. at
303). Accordingly, the ALJ provided sufficient reasons for
discounting portions of Dr. Langbart's July 2009 opinion,
and his decision to do so is supported by substantial
evidence.

2. March 23, 2010 Opinion
*3 Next, Dombroski argues that the ALJ's failure to
explicitly discuss Dr. Langbart's March 23, 2010 medical
source statement constitutes legal error which requires
reversal and remand. (See Dkt. No. 11 at 16–17.) The
Commissioner contends, and the court agrees, that the
ALJ's omission does not necessitate remand. (See Dkt.
No. 12 at 8–9.)
“[R]emand is unnecessary, even if the ALJ ignores
a treating physician's opinion, when the opinion is
essentially duplicative of evidence considered by the
ALJ, and the report that the ALJ overlooked was not
significantly more favorable to the plaintiff.” Seekins v.
Astrue, Civil No. 3:11 CV00264, 2012 WL 4471266, at
*5 (D.Conn. Aug. 14, 2012) (citing Zabala v. Astrue, 595
F.3d 404, 409–10 (2d Cir.2010)). Where discussion of
an omitted medical report “would not have changed the
outcome of the ALJ's decision,” such omission constitutes
“harmless error.” Walzer v. Chater, No. 93 Civ. 6240, 1995
WL 791963, at *9 (S.D.N.Y. Sept. 26, 1995).
As noted above, Dr. Langbart's March 2010 medical
source statement indicated greater mental functional
capacity by Dombroski than did his July 2009 assessment.
(Compare Tr. at 280–81, with id. at 309–11.) With
the exception of two functional areas which remained
consistent, the limitations articulated in Dr. Langbart's
March 2010 opinion were less severe than those expressed
in his July 2009 report. (See id.) In other words, to the
extent that the second report was not duplicative of the
first, it was less favorable to Dombroski. Additionally,
at step five of the sequential analysis, the VE explicitly
considered the most severe of the limitations contained
in Dr. Langbart's March 2010 opinion. (See id. at 18–19,
39–47.) Accordingly, it is evident that the omitted report

was duplicative, less favorable to Dombroski, and would
not have changed the outcome of the ALJ's decision.
See Seekins, 2012 WL 4471266, at *5. The ALJ's failure
to explicitly discuss the March 2010 opinion therefore
constitutes harmless error.

B. Credibility Determination
Dombroski contends next that the ALJ's assessment of his
credibility was legally flawed and is factually unsupported.
(See Dkt. No. 11 at 17–20.) The Commissioner counters
that the ALJ's credibility finding was legally sound and is
supported by substantial evidence. (See Dkt. No. 12 at 9–
12.) The court agrees with the Commissioner.
Once the ALJ determines that the claimant suffers
from a “medically determinable impairment[ ] that
could reasonably be expected to produce the [symptoms]
alleged,” he “must evaluate the intensity and persistence
of those symptoms considering all of the available
evidence; and, to the extent that the claimant's [subjective]
contentions are not substantiated by the objective medical
evidence, the ALJ must engage in a credibility inquiry.”
Meadors v. Astrue, 370 F. App'x 179, 183 (2d Cir.2010)
(internal quotation marks and citations omitted). In
performing this analysis, the ALJ “must consider the
entire case record and give specific reasons for the weight
given to the [claimant's] statements.” SSR 96–7p, 1996
WL 374186, at *4 (July 2, 1996). Specifically, in addition
to the objective medical evidence, the ALJ must consider
the following factors: “1) daily activities; 2) location,
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.” F.S. v. Astrue, No. 1:10–CV444, 2012
WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20
C.F.R. §§ 404.1529(c)(3) (i)-(vi), 416.929(c)(3)(i)-(vi)).
*4 Relying principally on inconsistencies between
Dombroski's subjective complaints and the objective
medical evidence, as well as with his reported activities
of daily living, the ALJ determined that those complaints
were credible only to the extent that they were consistent
with his RFC. (See Tr. at 16.) Specifically, the ALJ noted
that, although Dombroski alleged the inability to work
because of psychological impairments and chronic back
pains, he admitted to being able to cook, clean, listen to
the radio, play computer games, drive, build props for
a haunted house and drink beer with friends. (See id. at

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3

Dombrowski v. Astrue, Not Reported in F.Supp.2d (2013)
2013 WL 528456

16–17.) The ALJ also found that Dombroski's complaints
were “not supported by objective clinical, laboratory and/
or radiological findings and they [were] contradicted [by]
the assessments of the consultative examiner [and] the
[VE]'s testimony.” (Id. at 16.) Contrary to Dombroski's
contentions, however, the ALJ's credibility analysis
did not end there. In addition to inconsistencies with
medical evidence and daily activities, the ALJ discussed
Dombroski's physical and psychological symptoms, the
types and effectiveness of current forms of medication and
treatment, and past occurrences of noncompliance with
treatment. (See id. at 13–17, 281, 286–87, 290.)
Although the ALJ did not undertake a step-by-step
exposition of the factors articulated in 20 C.F.R. §§
404.1529(c) and 416.929(c), “[f]ailure to expressly consider
every factor set forth in the regulations is not grounds
for remand where the reasons for the ALJ's determination
of credibility are sufficiently specific to conclude that
he considered the entire evidentiary record.” Judelsohn
v. Astrue, No. 11–CV–388S, 2012 WL 2401587, at *6
(W.D.N.Y. June 25, 2012) (internal quotation marks
and citation omitted); see Oliphant v. Astrue, No. 11–
CV–2431, 2012 WL 3541820, at *22 (E.D.N.Y. Aug.
14, 2012) (stating that the 20 C.F.R. §§ 404.1529(c)(3)
and 416.929(c)(3) factors are included as “ ‘examples of
alternative evidence that may be useful [to the credibility
inquiry], and not as a rigid, seven-step prerequisite to
the ALJ's finding’ ”) (quoting Snyder v. Barnhart, 323
F.Supp.2d 542, 546 (S.D.N.Y.2004)). Here, the ALJ
explicitly acknowledged consideration of the 20 C.F.R.
§§ 404.1529(c) and 416.929(c) factors, (see Tr. at 13),
and it is evident from his thorough discussion that
his credibility determination was legally sound. See
Britt v. Astrue, 486 F. App'x 161, 164 (2d Cir.2012)
(finding explicit mention of 20 C.F.R. § 404.1529 and
SSR 96–7p as evidence that the ALJ used the proper
legal standard in assessing the claimant's credibility).
Additionally, the ALJ's determination that Dombroski's
subjective complaints were not credible to the extent that
they suggested impairment greater than the ability to
perform “less than a full range of light work ... limited
to simple, routine, low-stress tasks with limited general
public contact” is supported by substantial evidence. (Tr.
at 13.)

the ALJ's determination at step five is not supported
by substantial evidence. (See Dkt. No. 11 at 20–21.)
Specifically, he alleges that the ALJ's errors in assessing
his RFC and credibility, along with a failure to explicitly
include in the hypothetical question the limitations
articulated by examining psychiatrist Jeanne Shapiro
fatally undermine the step-five determination. (See id.) As
discussed above, however, the ALJ's RFC and credibility
findings were legally sound and are supported by
substantial evidence. Although the hypothetical question
did not include a verbatim recitation of Dr. Shapiro's
limitations, it appropriately encompassed the restrictions
contained in the ALJ's RFC analysis. (See Tr. at 38–
47.) Furthermore, as noted previously, even though the
ALJ did not explicitly discuss Dr. Langbart's March 2010
medical source statement, Dombroski's non-attorney
representative added the marked limitations contained
within that report to the hypothetical question posed to
the VE. (See id. at 42–47.) Even considering those marked
limitations, the ALJ found that a hypothetical claimant
could perform the jobs noted by the ALJ at step five. (See
id.) As such, the ALJ's step-five determination was free of
legal error and is supported by substantial evidence.

D. Remaining Findings and Conclusions
After careful review of the record, the court affirms the
remainder of the ALJ's decision as it is supported by
substantial evidence.

VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is
AFFIRMED and Dombrowski's Complaint (Dkt. No. 1)
is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide
a copy of this Memorandum–Decision and Order to the
parties.

IT IS SO ORDERED.
All Citations

C. Step Five Determination
*5 Finally, Dombroski argues that, because the
hypothetical question posed to the VE was incomplete,

Not Reported in F.Supp.2d, 2013 WL 528456

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4

Dombrowski v. Astrue, Not Reported in F.Supp.2d (2013)
2013 WL 528456

End of Document

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5

Baldwin v. Astrue, Not Reported in F.Supp.2d (2009)
2009 WL 4931363, 148 Soc.Sec.Rep.Serv. 455

2009 WL 4931363
United States District Court,
S.D. New York.
William BALDWIN, Plaintiff,
v.
Michael J. ASTRUE, Commissioner
of Social Security, Defendants.
No. 07 Civ. 6958(RJH)(MHD).
|
Dec. 21, 2009.
West KeySummary
1

Social Security
Mental and psychological conditions or
impairments
An ALJ's determination that a disability
insurance benefits claimant's non-exertional
limitations had little or no effect on his
ability to perform unskilled work was
not supported by substantial evidence.
The evidence indicated that the claimant
suffered from significant speech and language
difficulties as well as problems with anger,
frustration and concentration, and at least one
treating source opined that these limitations
prohibited the claimant from obtaining
employment. Social Security Act, § 205(g), 42
U.S.C.A. § 405(g).
56 Cases that cite this headnote

ORDER
RICHARD J. HOLWELL, District Judge.
*1 On October 22, 2009, Magistrate Judge Michael
H. Dolinger issued a Report and Recommendation
(“Report”) granting in part plaintiff's motion, denying
the Commissioner's motion, and remanding to the
Commissioner for further proceedings. To date, the Court
has neither received any objections to the Report nor

any other communication, such as a letter requesting an
extension of time in which to file objections, from the
Commissioner.
The district court adopts a Magistrate Judge's report and
recommendation when no clear error appears on the face
of the record. See Nelson v. Smith, 618 F.Supp. 1186,
1189 (S.D.N.Y.1985). However, the court is required to
make a de novo determination of those portions of a
report to which objection is made, 28 U.S.C. § 636(b)
(1)(C), by reviewing “the Report, the record, applicable
legal authorities, along with Plaintiff's and Defendant's
objections and replies.” Badhan v. Lab. Corp. of Am.,
234 F.Supp.2d 313, 316 (S.D.N.Y.2002). The court may
then accept, reject, or modify in whole or in part
recommendations of the Magistrate Judge. See Nelson,
618 F.Supp. at 1189. If a party fails to object to a report
within 14 days of being served with the report, that
party waives their right to object and appellate review of
the district court's decision adopting the report, absent
unusual circumstances, is precluded. See United States v.
Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997).
The Court finds that no clear error appears on the face of
the record and hereby adopts the Report. The Clerk shall
close this case.

SO ORDERED.
REPORT AND RECOMMENDATION
MICHAEL H. DOLINGER, United States Magistrate
Judge.
TO THE HONORABLE RICHARD J. HOLWELL,
U.S.D.J.:
Plaintiff William Baldwin commenced this action
pursuant to the Social Security Act, 42 U.S.C. § 405(g).
He seeks review of a November 2006 decision by the
Commissioner of the Social Security Administration
(the “SSA”), denying his claims for disability insurance
benefits and Supplemental Security Income (“SSI”) under
the Social Security Act (“the Act”).
Both parties have moved, pursuant to Rule 12(c) of
the Federal Rules of Civil Procedure, for judgment
on the pleadings. Defendant seeks to dismiss the
complaint, contending that his denial of benefits to
Mr. Baldwin is supported by substantial evidence and

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1

Baldwin v. Astrue, Not Reported in F.Supp.2d (2009)
2009 WL 4931363, 148 Soc.Sec.Rep.Serv. 455

otherwise accords with legal requirements. Plaintiff seeks
an order reversing the Commissioner's decision denying
his 2004 1 applications for disability benefits under the
Act and remanding the case for further administrative
proceedings.
1

We note that the relief requested in the complaint
improperly dates the applications as being made in
2002.

For the reasons set forth below, we recommend that
the case be remanded for further consideration and
administrative proceedings, and that defendant's motion
be denied.

PROCEDURAL HISTORY
On July 22, 2004, Baldwin filed an application for
Disabled Adult Child benefits under Title II of the Act
on the account of his retired father. (Tr. 59–68). 2 In
his application, he stated that his disabilities consisted
of speech and language impairments, an emotional
disturbance, asthma, ADHD and allergies, beginning July
8, 2004. (Tr. 60). The SSA denied his application on
October 20, 2004. (Tr. 45–47). On December 20, 2004, the
plaintiff filed an application for SSI benefits under Title
XVI of the Act on his own account (Tr. 188–90), and
requested a hearing on both applications. (Tr. 48).
2

Baldwin had been receiving dependent benefits under
Title II on the account of his father prior to turning
age 18.

*2 On July 17, 2006, the plaintiff appeared with counsel 3
and participated in a hearing before Administrative
Law Judge (“ALJ”) David Z. Nisnewitz. (Tr. 191). On
November 21, 2006, ALJ Nisnewitz issued a decision
finding that plaintiff was not disabled and denying
both of plaintiffs applications. (Tr. 20). Specifically, he
found that despite plaintiff's non-exertional limitations
compromising his ability to perform work at all exertional
levels, plaintiff is capable of performing “at least unskilled
work.” 4 The ALJ referenced the Medical–Vocational
Guidelines and concluded that a finding of “not disabled”
was warranted. (Tr. 20).
3

Although the ALJ's opinion indicates that Baldwin
appeared and testified without the assistance of an

attorney (Tr. 13), in fact Baldwin's counsel attended
and participated in the hearing. (See Tr. 193.)

4

Unskilled work is defined as “work which needs little
or no judgment to do simple duties that can be learned
on the job in a short period of time. The job may or
may not require considerable strength.” 20 C.F.R. §
404.1568(a).

Plaintiff appealed to the Appeals Council on December
28, 2006. (Tr. 9). The Appeals Council denied plaintiff's
request for review of the ALJ's decision on June 1, 2007.
(Tr. 4).
On August 2, 2007 plaintiff filed this lawsuit pursuant
to 42 U.S .C § 405(g), seeking review of the SSA's
decision. He specifically targets the ALJ's evaluation
of his record and the failure of the ALJ to introduce
evidence by a vocational expert or the equivalent to
establish the existence of a substantial number of jobs
that plaintiff can perform regardless of his non-exertional
impairment. (Pl.'s Mem. 20–23.). Plaintiff seeks a reversal
of the Commissioner's decision and a remand for further
proceedings. (Id. at 24).

FACTUAL BACKGROUND
I. Non–Medical Evidence
Plaintiff was born on August 20, 1986 (Tr. 188) and lives
with his mother (Tr. 54, 78), Fay Christian, a reading
teacher with the New York City Board of Education. (Tr.
193). Plaintiff's father is retired. While the plaintiff was a
minor he received a derivative Social Security benefit from
his father's Social Security Account. (Tr. 196, 201). The
plaintiff graduated from the Winston Preparatory School,
a private, special education school in Manhattan in June
2006. (Tr. 195). He entered college in September 2006 to
study fashion-model and logo-design photography at the
School of Visual Arts. (Tr. 194–95). Plaintiff has no past
relevant work. (Tr. 60).
Plaintiff submitted several disability reports during the
course of his application for SSI benefits that include
information about his claimed conditions. (See Tr. 59, 69,
78, 92). In a report dated July 8, 2004 (Tr. 59–68), he
claimed disability beginning as of the date of the report.
(Tr. 60). He reported suffering from speech and language
impairments, an emotional disturbance, asthma, attention
deficit hyperactivity disorder (ADHD) and allergies. (Tr.
60). However, he reported that he does not suffer from

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pain (Tr. 60) and that he does not take any medication.
(Tr. 65). He also stated that he attends special education
classes and that he has not completed any type of special
job training, trade or vocational school. (Tr. 66). Finally,
he can read and understand English (Tr. 59).
In a report dated August 16, 2004 (Tr. 78–86), he
stated 5 that he has a speech disorder and expressive and
receptive language delays. (Tr. 83). He is dyslexic and
has ADHD. (Tr. 84). He also has difficulty in following
instructions 6 and directions (Tr. 84), he cannot sit still
and has compulsive behavior. (Tr. 83). He has behavioral
problems and difficulty with authority. (Tr. 84). He does
not respond well to change and he wants the same
schedule, places, clothes and activities. (Tr. 85). He is
not able to socialize well with his peers because he is
self-conscious and embarrassed about his poor academic
abilities and speech articulation. (Tr. 82). He is unable
to express himself verbally and becomes frustrated when
others do not understand him. (Tr. 83). He does not
function well in social situations, and he often displays
inappropriate language and behavior. (Tr. 85). He can
be aggressive to his mother and also exhibits aggression
when threatened or fearful of others. (Tr. 83). He is not
independent or responsible for meeting his daily needs and
he cannot perform daily tasks without supervision. (Tr.
85). He is unable to handle financial matters, including
paying bills, handling a savings account or using a
checkbook or money orders. (Tr. 82). He is awakened by
his mother, has problems with personal care and must be
reminded to take his medication. (Tr. 79, 80).
5
6

This report was completed by his mother, Fay
Christian. (Tr. 78).
He reported that he cannot follow written
instructions, and sometimes (but not constantly) can
follow spoken instructions. (Tr. 84). He also has
difficulty in following many or multiple directions.
(Tr. 85).

*3 In a report dated December 19, 2004 (Tr. 92–98),
he stated that he takes Prevacid (30 mg) for ulcers and
Albuterol for asthma. (Tr. 95). He also reaffirmed that
he has not completed any type of job training or trade
or vocational school since he last completed a disability
report. (Tr. 96).
In plaintiff's July 8 and December 19 reports he
also stated that since January 2002 he has visited

Gildo Consolini, a psychotherapist, for treatment of his
emotional problems. (Tr. 62, 93). 7 He also reported
visiting Susin Gladstone, a language and speech therapist,
since December 2001 for his speech problems, receiving
directions and comprehension exercises as treatment.
(Id .) 8
7

8

Mr. Consolini's report indicates that he started
treating Baldwin in January 2003 (Tr. 115). There
is no indication of any attempt to resolve this
discrepancy in the record.
Ms. Gladston's report indicates that she began
treating Baldwin in September 2002. Again, there is
no mention of this discrepancy in the record.

Finally, on May 13, 2004, the New York City Board
of Education completed an Individualized Education
Program (“IEP”) for him. 9 (Tr. 159–71). The IEP noted
that plaintiff had been diagnosed with attention deficit
hyperactivity disorder and with a speech or language
impairment. (Tr. 159).
9

Although the ALJ included the IEP in the list of
“medical records,” it does not qualify as medical
evidence. See 20 C.F.R. § 913(d) (reports from
educational personnel are an “other source[ ]” of
information about an impairment, not a “medical
source”).

Regarding plaintiff's academic performance and learning
characteristics, the IEP reported that plaintiff was
administered the Wechsler abbreviated scale of
intelligence on January 9, 2002 and obtained an IQ
score that fell within the low-average range. (Tr. 161).
Overall, plaintiff was expected to perform at a level
that was somewhat lower than the performance of sameaged peers. (Tr. 161). Therefore, the IEP indicated that
plaintiff's academic management needs could best be met
in a small, structured class setting within a New York State
approved non-public school program with the related
services of counseling and speech/language therapy. (Tr.
161, 167, 168). According to the IEP, a 12–month school
year was warranted. (Tr. 161).
As for plaintiff's social and emotional performance, the
IEP reported that his behavior did not seriously interfere
with instruction and could be addressed by a special
education classroom teacher. (Tr. 162). It also suggested
that plaintiff would benefit from strategies to help him

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stay aware of his feelings and control his frustration
before it becomes problematic. (Id.). Regarding plaintiff's
health and physical development, the IEP reported that
he continued to require assistive technology due to
graphomotor 10 difficulties. (Tr. 163).
10

“Graphomotor” is defined as “pertaining to, or
affecting, the movements required in writing”.
Dorland's Illustrated Med. Dictionary 717 (28th
ed.1994).

The report then detailed Baldwin's annual goals and shortterm objectives, which included identifying triggers that
cause him to withdraw or act out and coming closer to
meeting grade-level performance standards in reading,
writing and math. (Tr. 164–66). It was noted that plaintiff
could participate in all school activities, such as lunch,
assemblies and trips. (Tr. 169). He should participate in
a hands-on academic vocational program and he would
benefit from participation in a community arts program.
(Tr. 170). Finally, he should meet with appropriate school
counselors to formulate a career plan (Tr. 170), and he
should investigate services provided by the New York
State Vocational and Educational Services for Individuals
Program. (Tr. 171).

II. Medical Evidence
A. Treating Sources
1. Learning Specialist/Speech and Language Therapist
*4 Susin Gladstone, M.A., a Learning Specialist and
Speech and Language Therapist, 11 reported that she
began providing one-to-one learning therapy to plaintiff
in September 2002, first twice-weekly for 45–minute
sessions and since September 2003 once a week for 90–
minute sessions. (Tr. 122). The record before the ALJ
contained one speech/language questionnaire and two
Progress Reports from Ms. Gladstone.
11

During Baldwin's hearing, the ALJ questioned
whether Ms. Gladstone was licensed as a speech
therapist by the State of New York. The plaintiff's
mother said Ms. Gladstone told her that she
was a licensed speech therapist, although both the
plaintiff's attorney and the ALJ questioned why
Ms. Gladstone's letterhead did not include this
qualification. (Tr. 212–13; see Tr. 172). The ALJ then
suggested that he was willing to assume that Ms.
Gladstone was a state-licensed speech therapist. (Tr.

213). However, there is no indication in the record
that the ALJ conducted further inquiry into Ms.
Gladstone's qualifications. In his decision he referred
to Ms. Gladstone merely as “a learning specialist/
speech and language therapist.” (Tr. 18).

In her Progress Report dated May 5, 2005 (Tr. 172–
73), Ms. Gladstone noted that the plaintiff had been
diagnosed with a multiplicity of learning difficulties,
which have resulted in significant delays in cognitive,
perceptual, speech, language and social emotional areas.
(Tr. 172). She also reported that although the plaintiff
had demonstrated observable progress during the year
preceding the report, 12 he continued to display severe
delays in all areas of development. (Tr. 173). She opined
that the growth that Baldwin was demonstrating resulted
“from the efforts of highly specialized teachers, a great
deal of one-on-one instruction, behavior modification,
consistent speech and language therapy and other
supports”. (Id.). As she pointed out, though, even with the
daily assistance of his organizational specialist, plaintiff
continued to lose assignments. (Id.).
12

For example, the plaintiff took an interest in team
sports, monitored his diet and lost a noticeable
amount of weight, and developed some casual
friendships. (Tr. 172).

According to the report, plaintiff learned best through
his visual modality. (Id.). His auditory memory and
processing skills were profoundly delayed, as was his
discrimination. (Id.). His auditory acuity was reported to
be within normal limits, but his auditory attention was
poor. (Id.). Also, his receptive and expressive vocabulary
skills were typical of a much younger student. (Id.).
When asked simple “Wh questions,” 13 plaintiff was
not always able to provide appropriate answers, even
to those questions that pertained to his personal fund
of information. (Tr. 173). Plaintiff was also challenged
by single-step instructions, and his expressive language
skills remained weak, although when working one-onone, plaintiff was always able to produce the correct
sounds when reminded. (Id.) Baldwin's written language
skills were very poor. (Id.).
13

Questions asking
why.” (Tr. 123).

“who,

what,

where,

when,

The learning specialist summarized her diagnosis by
noting that overall the plaintiff presented as a student
with significant difficulties in all areas. (Id.). In her

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opinion, it was essential that he continue his education
in a highly-specialized setting, at all times structured,
with individualized attention available throughout the
day. (Id.). In addition, she stated that plaintiff needed the
related services that were in place for him at that time,
and she strongly suggested that realistic vocational goals
should be set for him. (Id.)
Ms. Gladstone also completed a speech/language
questionnaire, dated August 16, 2004, in which she
opined that approximately 95% of plaintiff's speech was
intelligible to unfamiliar listeners. (Tr. 120). Plaintiff
was mostly able to comprehend 1–step directions, and
could comprehend some 2–step directions, but could not
comprehend any 3–step directions. (Id.). According to
her diagnosis, plaintiff had “significant receptive and
expressive language disabilities, in his case, not related
to his speech production, but rather the content of his
utterances.” (Id.). Finally, she suggested that plaintiff
needed to have frequent reinforcement even in a one-toone setting. (Tr. 121).
*5 In her August 16 questionnaire, Ms. Gladstone
frequently referred to another Progress Report, dated
May 12, 2004. In that report, Ms. Gladstone concluded
that although plaintiff had matured in many ways, he
remained an individual with significant challenges. (Tr.
122). His expressive and receptive language skills were
markedly below age-level, related to deficits in auditory
memory and processing. (Id.). In her opinion, plaintiff's
most profound deficits were language-related. (Tr. 123).
Baldwin was also found to have difficulty understanding
spoken and written directions, and although his speech
was intelligible, he had to be reminded to lift his head,
raise his voice and open his mouth when speaking. (Id.).
His written language skills also appeared to be extremely
limited. (Id.). Not only did he struggle with reading
comprehension, but serious deficits in his comprehension
remained when he listened to material read aloud to him,
even when tasks were highly concrete. (Id.). In addition,
his functioning and his abstract verbal reasoning skills
were reported to be characteristic of a much younger
student. (Tr. 122–23). Thus, Ms. Gladstone reported:
At the age of 17.8 years, William
cannot list even five of the
United States. He becomes confused
and names cities and towns. He
does not know the states that
border New York. His fund of

personal information is limited.
He has difficulty with all serial
language tasks, including listing the
months of the year, quickly and
in order. He cannot determine,
for example, which number comes
before 53 without taking time to
work through the question. When
presented with simple WH questions
(who, what, where, when, why)
William frequently offers tangential
or unrelated responses.
(Tr. 122–23). On the other hand, the learning specialist
also referred to the fact that plaintiff was a talented artist
and a visual learner with an intense interest in films and
comic books. (Tr. 122).
Ms. Gladstone also stated that plaintiff was self-conscious
about his limitations and that he would often appear
to be indifferent about his work. (Tr. 123). More likely,
she opined, he was embarrassed and fearful of failure,
but generally would work cooperatively when motivated.
(Id.). The learning specialist stressed how essential it was
for him to be in a highly structured learning environment,
where he could receive individualized attention in small
groups of other teenagers with similar dysfunctions. (Id.).
She recommended that plaintiff be placed in a highly
structured, self-contained learning environment and that
he undergo vocational counseling, which she deemed to be
essential for providing realistic goals. (Tr. 123–24).

2. Psychotherapist
Plaintiff also received treatment from a psychotherapist,
Gildo Consolini, MSW, CWS, who reported treating
plaintiff on a weekly basis from January through October
2003 and on a twice-weekly basis from November 2003
to August 2004. (Tr. 115). In addition to his individual
sessions with the plaintiff, he also saw the plaintiff's
mother approximately once a month for counseling
sessions. (Id.).
*6 In a report dated May 5, 2003, Mr. Consolini
pointed out that deficits in plaintiff's ability to use
language hampered him considerably, noting that his
angry, disruptive outbursts have had much to do with
his difficulties in verbalization. (Tr. 117). He opined that
individual treatment was preferable to group treatment
at that point. (Tr. 118). He also determined that

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Baldwin required individualized attention for his issues of
separation and individuation. (Id.).
In a report dated August 10, 2004 Mr. Consolini reported
that although plaintiff had made steady progress in
his academic and personal adjustment, he remained
unable to support himself, complete high school or gain
employment due to his psychological problems. (Tr. 115).
The psychotherapist also stated that despite the fact that
plaintiff's ability to adjust to academic and social settings
and situations had improved, he still required intensive
psychotherapeutic treatment because of his difficult-tocontrol anger, his limited frustration tolerance and his
concentration problems. (Id.). Finally, Mr. Consolini
stated his expectation that plaintiff would manage to
complete his high school education, if placed within a
smaller academic environment geared toward providing
him with an individualized learning experience and with
additional psychotherapeutic support. (Tr. 115–16). In his
view, Baldwin would even be able to become gainfully
employed upon completion of his education and would
eventually be able to support himself. (Tr. 116). 14
14

Mr. Consolini also completed a Statement of Patient's
Capability to manage benefits on July 8, 2004, in
which he generally reported the same observations.
(Tr. 113–14). Among other things, he stressed that
plaintiff was dependent on his mother and was unable
to provide for himself or manage his finances and
other personal matters. (Tr. 114).

B. Examining Sources
1. Lindamood–Bell Test Results
Baldwin completed several tests on June 29, 2006 which
revealed continued delays in all areas of academic
function. The results reflected a mental age of 9 years
old on the test of “Verbal Absurdities”, a score in the
first percentile and reflecting an age equivalent of 11.4
on the “Test of Problem Solving–Adolescent”, a fifthgrade reading level on the Woodcock Mastery Test, a
4.9 grade-level score on the Slosson Oral Reading Test, a
fourth-grade score on spelling, and a sixth-grade score on
arithmetic. (Tr. 174–75). Additionally, plaintiff could read
at 100% only on a third-grade level. (Tr. 175). On tests
of oral reading, plaintiff scored in the second percentile
on reading rate, accuracy and comprehension. (Id.). He
scored below the first percentile in fluency. (Id.).

2. Program Director, Center for Attention & Learning
Disorders
Michele Shackelford, Ph.D, the program director at
the Center for Attention and Learning Disorders,
examined plaintiff on January 12 and January 17, 2006.
The resulting Neuropsychological Evaluation concluded
that plaintiff presented with a language-based learning
disability and was found to meet the criteria for a Mixed
Receptive–Expressive Language Disorder, a Reading
Disorder and a Disorder of Written Expression. (Tr. 183).
Dr. Shackelford noted that Baldwin was a young man of
at least average intelligence, who presented with cognitive
weaknesses in language skills and working memory. (Id.)
Plaintiff's nonverbal cognitive skills were good (Tr. 180),
but academically he continued to struggle with reading
and writing (Tr. 182), due to his language-based learning
disability. (Tr. 183).
*7 In terms of plaintiff's test results, he scored a
Full Scale IQ of 89 (23rd percentile) on the Wechsler
Adult Intelligence Scale–Third Edition. According to
Dr. Shackelford, this result was not a valid indication
of his general intellectual abilities, which were in the
average to high-average range. (Tr. 179). On the other
hand. Dr. Shackelford considered plaintiff's Verbal IQ
of 83 (13th percentile) to be reflective of the language
difficulties that he had experienced since kindergarten.
(Id.). Dr. Shackelford found plaintiff's memory for visual
information to be overall stronger than his memory
for verbally presented material. (Tr. 181). However, his
verbal memory abilities improved when the material was
presented in a meaningful context. (Id.).
Plaintiff's performance on a task of reading
comprehension (Nelson–Denny) was found to be in the
very low range. (Tr. 182). Dr. Shackelford also reported
that plaintiff had a very hard time comprehending what he
was reading, even when given extra time. (Id.). In addition,
plaintiff had great difficulty completing a longer writing
activity, as he made many spelling and grammatical errors
that made his writing unclear and difficult to understand.
(Id.). It was also difficult for him to expand on his ideas
and express himself adequately. (Id.). Plaintiff's math
calculation skills were in the average range and therefore
were reported as an academic area of strength. (Id.).
However, his performance in math suffered when he was
asked to work quickly. (Tr. 183).

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Regarding plaintiff's personality and social-emotional
functioning, he tried hard to integrate information and
make sense of the world around him, although he was
frequently unsuccessful. (Id.). Dr. Shackelford indicated
that plaintiff's language problems made it difficult for
him to communicate verbally and impeded his ability to
relate appropriately to others. (Id.). On the other hand,
the evaluation noted that his reality testing was intact,
and that this was a great strength for plaintiff. (Id.).
Finally, Dr. Shackelford stressed that plaintiff would
require specific accommodations in his academic classes
to enable him to learn the material and to demonstrate
his knowledge. (Tr. 183–84). In her opinion, Baldwin had
the ability to be successful in the field of visual arts, as
long as he was not penalized too heavily for his learning
disabilities. (Tr. 184).

3. Speech and Language Pathologist
Dr. Mindy Singer, a New York State licensed speech and
language pathologist, conducted a consultive examination
of Baldwin upon referral from the New York State Office
of Temporary and Disability Assistance. In her Speech
and Language Evaluation Report dated September 28,
2004, Dr. Singer noted that Baldwin demonstrated
excellent attention span and was cooperative and focused
throughout the testing. (Tr. 128). Plaintiff presented
adequate skills in the use of language to communicate
and interact with those around him, such as asking for
help and responding to requests. (Tr. 129). The report also
mentioned that plaintiff established eye contact but did
not readily maintain it. (Id.). Plaintiff made no errors on
the Goldman–Fristoe 2 Test of Articulation, which was
administered to assess articulation skills at the word level.
(Id.). Plaintiff's intelligibility was also judged to be good.
(Id.).

Dr. Joshua Algaze, a psychiatrist, examined the plaintiff
at the request of the SSA on August 24, 2004. In his
psychiatric evaluation, Dr. Algaze diagnosed the plaintiff
with an adjustment reaction to illness with depression
and anxiety, a speech developmental disorder, and a
personality disorder, and he recommended ruling out
borderline mental retardation. (Tr. 126). In addition,
Dr. Algaze strongly recommended that the plaintiff
undergo psychiatric treatment, vocational rehabilitation
and psychological testing. (Id.). Furthermore, he opined
that plaintiff would not be able to manage his own funds.
(Id.).
Based on plaintiff's mental status examination, Dr. Algaze
found him to be somewhat shy, though he exhibited
normal psychomotor activity. (Tr. 125). He also appeared
occasionally hesitant and unsure of his responses. (Id.).
His speech was found halting, not spontaneous. (Id.). The
report also mentioned that the plaintiff exhibited mild-tomoderate receptive and expressive language skill deficits.
(Id.). His thinking was concrete but logical, although his
thought content centered mainly around his feeling of
embarrassment and shame over his cognitive and speech
deficits. (Id.). His intelligence level was reported as lowaverage. (Tr. 126). In terms of plaintiff's attention and
concentration, when he was asked to do serial of three he
repeated the question once or twice before he was able to
understand the task. (Id.). In a test of plaintiff's memory,
he was able to recall three-out-of-three objects after five
minutes. (Id.). Furthermore, his fund of knowledge was
reported as average, his mood occasionally angry and
depressed and his insight and judgment fair. (Id.). Finally,
plaintiff did not appear able to engage in age-appropriate
social activities. (Id.).

5. School Psychologists
*8 Ultimately, Dr. Singer diagnosed Baldwin with a
moderate receptive and severe expressive language delay
and recommended speech and language services. (Tr. 130).
She based her conclusion on test results showing that the
plaintiff scored in a single-digit or decimal percentile in all
but one category of the Clinical Evaluation of Language
Fundamentals (CELF–4) exam. (Tr. 128–29). Dr. Singer
pointed out that the results obtained at that time appeared
to be significant and as such were consistent with the
plaintiff's allegations. (Tr. 130).

4. Psychiatrist

a. Felicia Polikoff
Felicia Polikoff, M.S., a school psychologist, conducted
a psycho-educational evaluation of Baldwin on April
7, 2004 to determine the most appropriate academic
and social/emotional interventions for him. Ms. Polikoff
reported that the plaintiff was polite, cooperative and
respectful throughout the evaluation process. (Tr. 110).
He spoke in a generally clear fashion and was easily
understood by the examiner. (Id.). On the Wechsler
Individual Achievement Test–II, plaintiff performed
equally well on tasks that required him to correctly read
a series of printed words, and on tasks that required him

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to read sentences and paragraphs and answer questions
about what he had read. (Tr. 112). In overall reading skills,
plaintiff performed well below the average range. (Id.). On
the other hand, in the area of mathematics the plaintiff
performed in the average range, and his skills exceeded
those of approximately 19 percent of individuals his age.
(Id.). Finally, on tasks that required him to compose an
organized, persuasive essay on a named topic, plaintiff
was reported to perform well below the average range.
(Id.).
*9 Ms. Polikoff opined that overall, based on the results,
plaintiff could be expected to perform at a level somewhat
lower than his same-aged peers. (Id.). She also noted that
although the plaintiff seemed to have a better view of
himself and others as compared to previous assessments,
he might not always be able to respond in appropriate
ways, especially when faced with academic demands that
he could not meet. (Id.). Finally, she suggested that
Baldwin would benefit from strategies that would help
him stay aware of his feelings and control his frustration
before it became problematic. (Id.).

b. Dr. Dewey Aleem
Dr. Dewey Aleem, Ph.D., NCSP, a school psychologist,
evaluated the plaintiff on February 12, 2003. He had
previously examined the plaintiff on January 9, 2002. Dr.
Aleem stated in his psychological report that Baldwin
was cooperative and responsive, established intermittent
eye contact and tried to meet the demands of the test
situation. (Tr. 106). In addition, the plaintiff provided
accurate biographical information. (Id.).
According to Dr. Aleem, the plaintiff “continued to
impress as an insecure, uneasy adolescent with faulty
ego processes and related difficulty with coping with
heightened levels of anxiety and frustration, and his
feelings of being overwhelmed and ineffective attempts to
manage such feelings.” (Tr. 108). He was also reported to
have difficulties with “concentration and attention, low
self-esteem and low self-confidence, anxiety in unfamiliar
situations and atypical worries and fears. There was
also a tendency to act out.” (Id.). Finally, Dr. Aleem
opined that the plaintiff “would benefit from a structured,
supervised, therapeutic educational environment with
remediation and counseling services. He would also
benefit from a speech and language evaluation and/or
progress report.” (Id.).

C. Consulting Sources
1. State Medical Consultant
Dr. E. Charles, M.D., a state agency medical consultant,
examined plaintiff's claim file and completed a mental
Residual Functional Capacity (“RFC”) Assessment 15
dated October 12, 2004. The assessment form instructed
that each of Baldwin's mental activities was to be
evaluated within the context of his capacity to sustain
that activity over a normal workday and workweek on
an ongoing basis. (Tr. 131). Dr. Charles could assign
one of five categories to each skill, depending on the
degree of the plaintiff's limitation: 1) Not significantly
limited, 2) Moderately limited, 3) Markedly limited, 4)
No evidence of limitation and 5) Not ratable on available
evidence. Dr. Charles indicated that the plaintiff was
“moderately limited” in twelve areas: 1) “the ability to
understand and remember detailed instructions”, 2) “the
ability to carry out detailed instructions”, 3) “the ability
to maintain attention and concentration for extended
periods”, 4) “the ability to sustain an ordinary routine
without special supervision”, 5) “the ability to work
in coordination with or proximity to others without
being distracted by them”, 6) “the ability to 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”, 7) “the ability to interact
appropriately with the general public, 8) the ability to
get along with co-workers or peers without distracting
them or exhibiting behavioral extremes”, 9) “the ability
to maintain socially appropriate behavior and to adhere
to basic standards of neatness and cleanliness”, 10) “the
ability to respond appropriately to changes in the work
setting”, 11) “the ability to travel in unfamiliar places
or use public transportation”, and 12) “the ability to set
realistic goals or make plans independently of others”.
(Tr. 131–32). However, despite the fact that plaintiff
was found moderately limited in all of these areas, Dr.
Charles concluded that plaintiff's limitations were not
significantly impeding his mental abilities for substantial
gainful activity. (Tr. 133).
15

A claimant's RFC refers to his maximum remaining
ability, despite his limitations, to do sustained work
activities in an ordinary work setting on a regular
and continuing basis. The RFC assessment must
include a discussion of the individual's abilities on
that basis. Schultz v. Astrue, 2008 WL 728925, at *6

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Baldwin v. Astrue, Not Reported in F.Supp.2d (2009)
2009 WL 4931363, 148 Soc.Sec.Rep.Serv. 455
(N.D.N.Y. Mar.18, 2008) (quoting Melville v. Apfel,
198 F.3d 45, 52 (2d Cir.1999)). If a claimant has more
than one impairment, all medically determinable
impairments must be considered, including those that
are not “severe.” The assessment must be based
on all relevant medical and non-medical evidence,
such as physical abilities, mental abilities, and
symptomology, including pain and other limitations
that could interfere with work activities on a regular
and continuing basis. 20 C.F.R. §§ 404.1545(a)(1)-(3),
416 .945(a)(1)-(3).

*10 Dr. Charles also reviewed the evidence in the record
and completed a psychiatric review technique form dated
October 14, 2004. He found that the plaintiff met the
diagnostic criteria for affective disorders and personality
disorders. (Tr. 136). Specifically, he noted that the plaintiff
had an adjustment disorder with depression and anxiety
(Tr. 139), a personality disorder, moderately severe speech
and language delays (Tr. 143), and moderate difficulties
in maintaining social functioning (Tr. 146). In addition,
the review reported one or two episodes of deterioration,
each of extended duration. (Id.). Notwithstanding these
findings, Dr. Charles reported that the evidence did not
establish the presence of “C” criteria, which among other
factors would reflect a chronic affective disorder “of
at least two years' duration that has caused more than
a minimal limitation of ability to do any basic work
activity.” (Tr. 147).

2. Speech and Language Medical Consultant
On October 8, 2004 the state disability analyst tasked
with reviewing Baldwin's claim for benefits sent an
electronic request for medical advice to a speech and
language medical consultant, identified in the record
only as “Liddie”. (Tr. 150). The consultant was asked
to determine whether Baldwin's speech and language
impairment met or equaled the Listings 16 , and if not, to
forward the case to a psychological medical consultant for
evaluation. (Id.).
16

“The Listings” refer to a list of impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. “The
third inquiry [in the disability analysis] 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.” Rosa v.

Callahan, 168 F.3d 72, 77 (2d Cir.1999). If claimant
does not have a listed impairment, the Commissioner
will move to the fourth step of the mandated five-step
analysis to determine disability. Id.

The consultant provided an evaluation on October 13,
2004. (Id .). After reviewing the plaintiff's September
2004 speech and language scores on the CELF–
4, the consultant reported that the plaintiff had
moderate deficits in comprehension and severely impaired
expressive language skills. (Id.). The consultant also
referred to informal reports indicating that Baldwin had
poor vocabulary and grammar skills and also deficits
in his ability to process auditory information. (Id.).
However, the consultant noted that the plaintiff was
reported to communicate functionally in social contexts
despite the deficits. (Id.). The consultant also found
that plaintiff was able to express himself using complete
sentences, provide biographical information, describe
his experiences, request information and clarifications,
engage in conversation and tell jokes. (Id.). He was also
reported to have adequate pragmatic language skills. (Id.).
In addition, his articulation skills were within normal
limits and his speech was 95% intelligible. (Id.). Based on
these findings, the non-examining consultant concluded
that plaintiff's communication impairment did not meet/
equal listing 2.09. 17 (Id.).
17

Listing 2.09 refers to “[l]oss of speech due to any
cause, with inability to produce by any means speech
that can be heard, understood or sustained”. 20 CFR
Pt. 404, Subpt. P, App. 1.

3. State Disability Analyst
On October 14, 2004, Mr. Weinstein, the state disability
analyst 18 reviewing plaintiff's claim, analyzed the medical
evidence on file and completed a physical Residual
Functional Capacity (RFC) Assessment. 19 He diagnosed
the plaintiff as suffering from asthma and allergies. (Tr.
151, 155). He reported, however, that plaintiff had no
exertional (Tr. 152), postural (Tr. 153), manipulative (Tr.
154), visual (Tr. 154) or communicative limitations (Tr.
155).
18

The ALJ's decision referred to Mr. Weinstein as
a “State agency vocational specialist,” (Tr. 17)
although there is no indication in the record that
Mr. Weinstein possessed vocational expertise. Mr.

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Weinstein listed his title as “Disability Analyst
II.” (Tr. 135).

19

The first page of the physical RFC improperly
indicates that it was completed on October 17,
2004. (Tr. 151). However, since Mr. Weinstein's
October 14 report of contact form references the
completed physical RFC (Tr. 135), the better reading
of the somewhat ambiguous handwritten date on the
physical RFC is October 14. (Tr. 158). The October
14 report of contact is unlikely to have referenced a
document that was not completed until October 17.

*11 Also on October 14, Mr. Weinstein completed a
report of contact form that analyzed Baldwin's claim
for benefits, including a discussion of his physical and
psychiatric RFCs. He found that the plaintiff's physical
RFC showed that he had no exertional limitations.
(Tr. 135). Baldwin's psychiatric RFC was limited to
understanding, remembering and carrying out simple
instructions. (Id.) Plaintiff's concentration was classified
as adequate. (Id.). The disability analyst concluded that
since the plaintiff had no past relevant work, he could
perform the following jobs, which he characterized as
simple and low-stress: “Odd piece checker (Knitting),
Bunch trimmer, mold (Tobacco), Wood inspector (Paper
and Pulp).” (Id.). Therefore, Mr. Weinstein reported that
plaintiff's claim for benefits had been denied. (Id.).

III. The Hearing Before the ALJ
A. Plaintiff's Testimony
Plaintiff testified that he has a high school diploma from
Winston Preparatory High School. (Tr. 195). He reported
that he was in special education at school because he has a
language and speech disability (Id.). He also testified that
he studies fashion-model and logo-design photography as
a freshman in the School of Visual Arts. (Tr. 194, 195).
He has a camera and knows how to use a digital one. (Tr.
199). He also has a computer and knows how to print out
photos on it. (Id.). He can also follow steps to download
and manipulate photos from his digital camera using his
computer. (Tr. 223, 224). He knows how to read and write.
(Tr. 196). He is an avid collector of comic books and likes
reading them. (Id.). He can also follow instructions on
cookbooks because they are simple and go straight to the
point. (Tr. 224, 225). However, he is not good at reading
novels and “complicated stuff”. (Tr. 224). He testified that
he could not understand some words and that sometimes
he got a headache trying to understand the real meaning of
some words. (Tr. 222). He likes playing golf and softball.

(Tr. 197). Finally, he testified that he could count his
money and that he could tell when people were gypping
him. (Tr. 223).

B. Testimony by Plaintiff's Mother
Baldwin's mother testified at the hearing that her son
suffers from speech and language delay. (Tr. 198). In
her opinion the receptive delay was more severe, as he
has more difficulty understanding what he is told than
in expressing himself. (Id.). She also pointed out that
plaintiff's chronological age does not match his mental
age. (Id.). In addition, according to his mother, Baldwin
was very easily frustrated (Tr. 229), has great difficulty
focusing (Tr. 222) and cannot manage aspects of daily
living, such as managing money and taking care of bills.
(Tr. 219). When asked by the ALJ if she thought that the
plaintiff could perform simple, repetitive jobs, she agreed
that her son could sit in a room Xeroxing. (Tr. 221).
However, she testified that her goal was to find something
where plaintiff would learn skills and would be able to
take care of himself, as her money was being used to try
to improve her son's condition. (Tr. 221–22). Finally, she
stated that her son needed counseling, but she could not
provide it. (Tr. 228).

C. Testimony by Non–Examining Consultant
*12 At the hearing, the ALJ called a medical consultant
to testify about his impression of plaintiff's status. Dr.
Allan Rothenberg, a pediatrics specialist, testified based
on his review of the record and observation of the
testimony at the hearing. (Tr. 201, 209). Dr. Rothenberg
has no formal training in speech and language pathology,
although he treats children with speech and language
problems and is a consultant to an early-intervention
program. (Tr. 209).
When asked by the ALJ whether Baldwin met or equaled
a listing in the SSA regulations, Dr. Rothenberg testified
that, prior to age 18, he would have met a listing. 20 (Tr.
202). However, in his opinion Baldwin's condition did not
meet or equal the requirements of any listing that applies
to persons over age 18. (Tr. 203).
20

Specifically, he would have met listing 112.11,
which defines standards for Attention Deficit
Hyperactivity Disorder. Dr. Rothenberg concluded
that Baldwin exhibited all three of the symptoms
listed in 112.11(A) as well as 112.02(B)(2)(a) (marked

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impairment in age-appropriate cognitive functioning)
and 112.02(B) (2)(d) (marked difficulties with
concentration, persistence and pace), thus satisfying
the requirement of 112.11(B). (Tr. 202).

To substantiate his opinion, Dr. Rothenberg cited a
number of documents in the record. He first referred to
the October 14, 2004 Psychiatric Review Technique Form
completed by Dr. E. Charles. (Id.). He noted that Dr.
Charles had characterized the plaintiff's functioning as
“mildly limiting, moderately limiting, but not markedly or
extremely limiting”. (Tr. 203). From that, Dr. Rothenberg
drew the conclusion that the psychiatrist thinks that
plaintiff can work. (Id.). He also noted that on page 15
of Dr. Charles' form, he cited the opinion of a speech
and language therapist that the plaintiff had adequate
pragmatic skills. (Id.). 21 Dr. Rothenberg noted that the
plaintiff's participation at the hearing also indicated that
he was able to converse. (Id.).
21

The fifteenth page of Dr. Charles' report is actually
the report of the speech and language medical
consultant referred to in the record only as
“Liddie.” (Tr. 150).

He then referred to the report of Mr. Weinstein, whom
he identified as a vocational expert, despite the fact that
his title is “Disability Analyst II” and the record does
not contain evidence of any vocational expertise. 22 Dr.
Rothenberg stated that in Mr. Weinstein's opinion the
plaintiff could “hold a job.” (Id.).
22

Mr. Weinstein's role is discussed supra pp. 30–31.

Dr. Rothenberg also cited the October 12, 2004 Mental
Residual Functional Capacity Assessment completed by
Dr. Charles. He pointed out that Dr. Charles' responses
indicated that plaintiff suffers from mild to moderate or
moderate limitations. (Id.).
As for Dr. Algaze's August 24, 2004 psychiatric evaluation
of the plaintiff, 23 Dr. Rothenberg repeated the diagnosis
that plaintiff suffers from adjustment reaction to illness
with depression and anxiety, and a mental and personality
disorder. Dr. Rothenberg expressed surprise that Dr.
Algaze recommended ruling out borderline mental
retardation, since, according to Dr. Rothenberg, no one
who talked with the plaintiff for a few minutes could think
that he was borderline mentally retarded. (Tr. 205–06).

23

Dr. Rothenberg referred to this report as being part
of Exhibit 13F, but in the record the Commissioner
provided to the court it appears as Exhibit 6F. (Tr.
125–26).

Dr. Rothenberg then addressed Susin Gladstone's May
5, 2005 progress report, stating—inaccurately—that it
reported that plaintiff had demonstrated “excellent
improvement” 24 in the past year due to the “efforts of
highly-specialized teachers, a great deal of one-on-one
instruction and behavior modification”. (Tr. 206). He
also referred to Ms. Gladstone's conclusion that plaintiff's
auditory memory and processing skills were profoundly
delayed. (Id.).
24

In fact, Ms. Gladstone's report did not characterize
Baldwin's improvement as excellent. She described his
advances in the past year as the “most observable
progress” he had made compared to prior years,
and then qualified the observation by noting that
he “continues to display severe delays in all areas
of development” and suffers from “marked attention
deficits”. (Tr. 172–73).

*13 Dr. Rothenberg also cited Michele Shackelford's
January 2006 neuropsychological evaluation. (Id.). He
testified that it was interesting that on a test that
evaluated verbal and language-based skills and abilities,
plaintiff scored in the 37th percentile in the subcategory
of comprehension, which Dr. Rothenberg classified as
“not so bad.” (Id.). He also cited Dr. Shackelford's
findings that Baldwin had low-average to average scores
on various measures of reading ability, not significantly
below-average scores. (Id.)
Plaintiff's counsel then questioned Dr. Rothenberg. He
first directed Dr. Rothenberg's attention to the fact that
plaintiff's core language score was below the first tenth of
a percentile on Ms. Singer's September 28, 2004 Speech
and Language Evaluation Report. (Tr. 207–08). Although
Dr. Rothenberg admitted that a score below the first
tenth of a percentile is an extraordinary low score on any
standardized test, he testified that while he did not see the
plaintiff in 2004, the test results were unrepresentative of
the plaintiff's performance at the hearing. (Tr. 208–09).
Plaintiff's counsel also asked Dr. Rothenberg what
happens to children who meet the listing for attention
deficit hypertensive disorder (ADHD) as a child when
they reach age 18. (Tr. 209–10). Dr. Rothenberg said that
the results vary as “[s]ome [children] do extremely well,

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some do well and some don't do so well as they go into
young adulthood”. (Tr. 210). He then testified that most
of the patients sublimate, which appeared to be true of the
plaintiff, since his learning disabilities would be minimized
in the area of photography. (Tr. 211). When the ALJ
interjected to ask whether the plaintiff is capable of doing
any kind of work, including simple, repetitive tasks, Dr.
Rothenberg stated that the plaintiff can perform work.
(Id.).
Plaintiff's counsel next directed Dr. Rothenberg's
attention to Susin Gladstone's May 12, 2004 progress
report. (Tr. 211). The ALJ interrupted at that point
to inquire as to Ms. Gladstone's qualifications, and
suggested that the report was “a little antiquated” because
the examination had been performed in May 2004. (Tr.
212–13). He also read aloud Ms. Gladstone's findings that
Baldwin had significant receptive and expressive language
disabilities related to the content of his speech and that
95% of his speech is intelligible to unfamiliar listeners. The
ALJ opined that that was a “very high percentage.” (Tr.
213–14).
Baldwin's attorney proceeded to direct attention to the
section of Ms. Gladstone's report stating that Baldwin was
unable to name more than five states and confused places
and names. (Tr. 214). At this point the ALJ intervened
again to state that he himself did not know the states
that border Oklahoma and that he did not know that
he could name the states that border New York. (Tr.
215). Dr. Rothenberg then replied, without any evident
justification, that he thought that Baldwin “knows the
number,” apparently referring to Baldwin's ability to
name the states bordering New York. (Id.). The ALJ then
noted that his impression from listening to the plaintiff
was that—at least in terms of visual arts—he was capable
of doing more than Xeroxing papers in an office. (Tr. 215–
16).
*14 Finally, the ALJ questioned whether the plaintiff
could take care of himself, and Dr. Rothenberg replied
that, according tot he record, the plaintiff could do so. (Tr.
218).

D. The ALJ's Decision
In a written decision on November 21, 2006, ALJ
Nisnewitz declared Baldwin ineligible for SSI benefits
based on his finding that Baldwin did not have a disability
within the meaning of the Social Security Act. In his

decision, the ALJ applied the five-step evaluation process
required under 20 C.F.R. §§ 404.1520(a) and 416.920(a).
(See Tr. 14–15). He first found that plaintiff had not
engaged in substantial gainful activity since July 8, 2004,
the alleged onset date of his disability. (Tr. 15). He
next found that the plaintiff suffered from two severe
impairments as defined in 20 CFR §§ 404.1520(c) and
416.920(c): an adjustment disorder with depression and
anxiety and a history of speech developmental disorder,
although neither met or medically equaled the criteria for
per se disabling conditions as listed in Appendix 1, subpart
P. (Tr. 15–16). 25 As for the impact of these conditions, the
ALJ found that the plaintiff had no physical limitations
and had a mental residual functional capacity to perform
at least simple, routine, repetitive unskilled work activity
with normal supervision. (Tr. 16).
25

If a claimant has a “listed” impairment, he will
be considered disabled per se without an additional
assessment of vocational factors such as age,
education, and work experience. If the plaintiff does
not have a listed impairment, the Commissioner must
consider whether the plaintiff still has the capacity to
perform work. See, e.g., Bush v. Shalala, 94 F.3d 40,
45 (2d Cir.1996)

The ALJ clarified that plaintiff had no past relevant work,
as defined in 20 C.F.R. §§ 404.1565 and 416.965, since he
has been a student and just graduated from high school in
June 2006. (Tr. 19). 26 The ALJ also determined that since
the plaintiff was 18 years old on the alleged disability onset
date, he was defined as a “younger individual age 18–44”
under 20 C.F.R. §§ 404.1563, 416.963. (Id.). The ALJ also
found that plaintiff had at least a high-school education
and was able to communicate in English, as discussed in
20 C.F.R. §§ 404.1564 and 416.964. (Id.).
26

He further found that transferability of skills was not
an issue in this case under 20 C.F.R. §§ 404.1568 and
416.968, as plaintiff did not have any past relevant
work. (Id.).

As for alternative work, the ALJ found that although
Baldwin's ability to perform work at all exertional levels
has been compromised by non-exertional limitations,
these limitations had little or no effect on the occupational
base of unskilled work at all exertional levels. (Tr. 20).
According to the ALJ, a finding of “not disabled” was
appropriate under the framework of section 204.00 of
the Medical–Vocational Guidelines. 27 (Id.). Therefore,

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considering plaintiff's age, education, work experience
and residual functional capacity, the ALJ concluded that a
significant number of jobs existed in the national and local
economies that Baldwin could perform. (Tr. 19). This led
to the ALJ's conclusion that the plaintiff was not under a
“disability” as defined by the Act at any time through the
date of the decision. (Tr. 20).
27

The Medical–Vocational Guidelines, commonly
referred to as “the Grids,” take into account the
claimant's residual functional capacity in conjunction
with his age, education and work experience. Based
on these factors, the Grids indicate whether the
claimant can engage in any other substantial gainful
work that exists in the economy. Zorilla v. Chater, 915
F.Supp. 662, 667 (S.D.N.Y.1996).

In support of these conclusions, ALJ Nisnewitz first
summarized the plaintiff's hearing testimony about
his educational history, hobbies, and non-exertional
limitations. (Tr. 16). He also referred to the testimony of
Baldwin's mother about his limitations. (Id.). The ALJ
also referred to his own observation at the hearing that he
was able to hear and understand the plaintiff well. (Id.).
*15 He then discussed the plaintiff's medical evidence,
focusing on those records cited by Dr. Rothenberg during
his hearing testimony. (See Tr. 17–19). The ALJ stated
that Dr. Rothenberg's testimony “is the opinion which is
given significant weight” because the plaintiff “is indicated
to have improved significantly since much of the evidence
of record was recorded.” (Tr. 19).
During the course of reviewing the plaintiff's medical
records, the ALJ noted instances in which Dr. Rothenberg
disagreed with evidence in the record. For instance, he
pointed out that Dr. Rothenberg was of the opinion that
the plaintiff's extraordinarily low score on the September
28, 2004 CELF–4 test administered by Ms. Singer did not
represent the plaintiff's abilities as demonstrated at the
hearing. (Tr. 18). The ALJ also noted Dr. Rothenberg's
disagreement with Dr. Algaze's suggestion of ruling out
borderline mental retardation as a possible diagnosis for
the plaintiff. (Id .)
The ALJ concluded his review of the medical evidence
by stating that “the claimant's medically determinable
impairments could reasonably be expected to produce
the alleged symptoms, but ... the claimant's statements
concerning the intensity, persistence and limiting effects of

these symptoms are not entirely credible”. (Tr. 18–19). He
found that although Baldwin “has some mild to moderate
limitations in activities of daily living, social functioning
and concentration, persistence or pace”, nevertheless “he
is not precluded from sustaining at least simple, repetitive
unskilled work under normal supervision and has no
physical limitations”. (Tr. 19). The ALJ stated that the
plaintiff can certainly perform unskilled work and may
have the ambition to perform skilled work (id.), a view he
also attributed to Dr. Rothenberg. (Tr. 18).

E. The Appeals Council Decision
Plaintiff sought review of the ALJ's decision by the
Appeals Council. (Tr. 9) The Appeals Council denied
plaintiff's request for review by notice dated June 1, 2007,
making the ALJ'S decision the final one on plaintiff's
application for benefits. (Tr. 4–6).

IV. The Parties' Motions
Baldwin filed suit on August 2, 2007 challenging the
Commissioner's decision as not supported by substantial
evidence on the record and as being contrary to
the law. The Commissioner responded by filing a
motion for judgment on the pleadings, arguing that his
determination that plaintiff was not disabled is supported
by substantial evidence. (Def.'s Mem. 14–19). Specifically,
the Commissioner relies on Dr. Rothenberg's testimony
and the asserted failure of Baldwin's medical records
to corroborate his alleged mental limitations. He argues
that the record, including those portions supplied by the
plaintiff's treating mental-health sources, supports the
conclusion that plaintiff could perform simple, routine,
repetitive unskilled work. In particular, the Commissioner
states that Dr. Charles concluded that plaintiff had no
significant limitations in understanding, remembering and
carrying out simple instructions, performing activities
within a schedule, making simple work-related decisions,
responding appropriately to criticism from supervisors
and getting along with co-workers and peers, and had
moderate limitations only with respect to responding
appropriately to changes in the work setting. (Def.'s Mem.
16).
*16 The Commissioner further discusses plaintiff's
mental functioning, noting that Baldwin had scored in the
average to high-average range on an IQ test, graduated
from high school, begun college and was capable of
taking and printing digital photos. (Def .'s Mem. 15).

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The Commissioner also cites Ms. Gladstone's finding that
plaintiff demonstrated normal articulation skills and that
his speech was 95 percent intelligible (Def.'s Mem. 15), and
Ms. Singer's assessment of the plaintiff's intelligibility as
good. (Def.'s Mem. 16). The Commissioner also notes that
the professionals who evaluated plaintiff opined that with
proper vocational training, plaintiff could be gainfully
employed, mentioning in particular the findings of Ms.
Gladstone, Mr. Consolini and Dr. Shackelford. (Def.'s
Mem. 16–17).
The Commissioner refers as well to the hearing testimony
of plaintiff's mother that the plaintiff is capable of
performing work which entails simple, repetitive tasks.
(Def.'s Mem. 17). He also argues that plaintiff's testimony
that he enjoyed taking pictures and printing them on his
computer was another indication of his ability to perform
at least simple, unskilled work. (Id.).
Plaintiff has also moved for judgment on the pleadings,
seeking a remand of the matter for further administrative
proceedings. In support of his motion, the plaintiff argues
that the Commissioner failed to carry his burden at step
five of the sequential evaluation by not introducing the
testimony of a vocational expert in light of the fact that
plaintiff's non-exertional limitations significantly limit his
potential range of employment. (Pl.'s Mem. 20–23, citing
inter alia Bapp v. Bowen, 802 F.2d 601, 605–06 (2d
Cir.1986)).
To establish the significance of his non-exertional
limitations, Baldwin notes Dr. Rothenberg's conclusion
that he would meet a listing if he were under age 18.
He also refers to the findings of Ms. Gladstone, as
well as to his extraordinary low scores on standardized
speech and language testing. (Pl.'s Mem. 20–21). He
further states that although Ms. Singer found him to have
adequate pragmatic skills, she nonetheless determined
that his expressive and receptive language skills scores
were severely and moderately limited. (Pl.'s Mem. 21). To
counter Dr. Rothenberg's disagreement with Ms. Singer's
findings, the plaintiff points out that Dr. Rothenberg
based his testimony only on his observation of the plaintiff
at the hearing and that he has no background in speech
and language pathology. (Id.). Plaintiff also disputes the
suggestion that the intelligibility of his speech undermines
the significance of his non-exertional limitations, noting
that despite his speech being intelligible, he is still
unable to express himself since “intelligibility measures the

quality of the sound of speech, not the actual content of
what is being communicated”. (Pl.'s Mem. 22). Finally,
plaintiff concludes that the Commissioner could not
sustain his step five burden by reference to the medical
vocational rules where the plaintiff's psychiatric review
form indicate that he suffers from “moderate” limitations
in two of the four areas considered. (Pl.'s Mem. 23, citing
Zwick v. Apfel, 1998 WL 426800, *7–9 (S.D.N.Y., July 27,
1998)).
*17 In his reply memorandum, the Commissioner
reiterates that there was substantial evidence for the
ALJ's conclusion that the plaintiff does not suffer from
significant non-exertional limitations, making the ALJ's
reference to the medical-vocational guidelines proper. He
emphasizes that the ALJ, as the trier of fact, has the
authority to weigh the evidence and that he was not
obligated to read the evidence in the manner suggested by
the plaintiff. (Def.'s Reply Mem. 3–6). The Commissioner
also argues that whether the plaintiff would meet a listing
for a childhood disability is irrelevant to determining
whether the plaintiff suffers from a disability as an adult.
(Def.'s Reply Mem. 6).
In Baldwin's reply memorandum, he reiterates that
neither the ALJ, nor the consulting psychiatrist, nor the
pediatrician who testified as a supposed medical expert
at the hearing, possessed the training and knowledge
required to diagnose, treat, or assess speech and language
disorders. (Pl.'s Reply Mem. 2). The plaintiff further
states that none of the above-mentioned sources were
competent to displace the report of Ms. Singer, a
speech and language pathologist, who diagnosed plaintiff
with moderate receptive and severe expressive delays in
September 2004. (Id.).
Plaintiff also argues that the Commissioner erred in
relying on the predictions of some sources that he
had the potential to be gainfully employed upon
completion of vocational rehabilitation. Since that
vocational rehabilitation has yet to be completed,
plaintiff says, his future potential improvement does not
undermine his status as a currently disabled individual.
(Pl.'s Reply Mem. 3).
Plaintiff also targets the qualifications of Dr. Rothenberg,
expressing incredulity at how he could function as both an
independent medical expert and an agent of the SSA. He
also notes once again that Dr. Rothenberg's experience as

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a pediatrician did not make him an expert in any relevant
field. (Pl.'s Reply Mem. 3–4).
Finally, according to the plaintiff, “even accepting the
ALJ's constricted formulation of [Baldwin's] residual
functional capacity, with acknowledged ‘moderate’
limitations in social functioning, it must nonetheless be
found that the ALJ's own finding in turn necessarily
requires a finding that [he] has ‘significant’ non-exertional
limitations that would preclude the Commissioner's
reliance on the medical vocational rules and require the
testimony of a vocational expert”. (Pl.'s Reply Mem. 4).

DISCUSSION
I. Standard of Review
When a plaintiff challenges the SSA's denial of
disability insurance benefits, the court may set aside
the Commissioner's decision only if it is not supported
by substantial evidence or was based on legal error.
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998) (citing
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982)
(per curiam)); 42 U.S.C. § 405(g) (“The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive.”).
Substantial evidence is “ ‘more than a mere scintilla. It
means 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, 28 L.Ed.2d
842 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see
also Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.2004).
The substantial-evidence test applies not only to the
Commissioner's factual findings, but also to inferences
and conclusions of law to be drawn from the facts. See,
e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208,
214 (S.D.N.Y.1999). In determining whether substantial
evidence exists, a reviewing court must consider 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. See, e.g.,
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999); Williams ex
rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988).
*18 As implied by the substantial-evidence standard, it
is the function of the Commissioner, not the courts, to
resolve evidentiary conflicts and to appraise the credibility
of witnesses, including the plaintiff. Carroll v. Sec'y of

Health and Human Servs., 705 F.2d 638, 642 (2d Cir.1983).
While the ALJ need not resolve every conflict in the
record, Miles v. Harris, 645 F.2d 122, 124 (2d Cir.1981),
“the crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing
court] to decide whether the determination is supported by
substantial evidence.” Ferraris v. Heckler, 728 F.2d 582,
587 (2d Cir.1984); accord Snell v. Apfel, 177 F.3d 128,
134 (2d Cir.1999) (holding that claimant was entitled to
an explanation of why the Commissioner discredited her
treating physician's opinion).
Even if the record, as it stands, contains substantial
evidence of disability, the SSA decision may not withstand
a challenge if the ALJ committed legal error. Balsamo, 142
F.3d at 79. Of particular importance, because a hearing
on disability benefits is a non-adversarial proceeding,
the ALJ has an affirmative obligation to fully develop
the administrative record. Perez v. Chater, 77 F.3d 41,
47 (2d Cir.1996) (citing Echevarria v. Sec'y of Health
and Human Servs., 685 F.2d 751, 755 (2d Cir.1982)).
The ALJ bears this duty even when the claimant is
represented by counsel. Id. Toward this end, the ALJ must
make every reasonable effort to help an applicant get
medical reports from her medical sources. 20 C.F.R. §§
404.1512(d), 416.912(d). More specifically, “[t]he record
as a whole must be complete and detailed enough to
allow the ALJ to determine [plaintiff's] residual functional
capacity.” Casino–Ortiz v. Astrue, 2007 WL 2745704, *7
(S.D.N.Y. Sept.21, 2007) (citing 20 C.F.R. § 404.1513(e)
(1)-(3)). Therefore, the ALJ must seek additional evidence
or clarification when the “report from [plaintiff's] medical
source contains a conflict or ambiguity that must be
resolved, the report does not contain all the necessary
information, or does not appear to be based on medically
acceptable clinical and laboratory diagnostic techniques.”
20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1). In short,
if a physician's report is believed to be insufficiently
explained, lacking in support, or inconsistent with the
physician's other reports, the ALJ must seek clarification
and additional information to fill any clear gaps from
the physician before dismissing the doctor's opinion. See,
e.g., Rosa, 168 F.3d at 79 (citing Schaal v. Apfel, 134
F.3d 496, 505 (2d Cir.1998) (“even if the clinical findings
were inadequate, it was the ALJ's duty to seek additional
information ... sua sponte.” )).
In addition, the ALJ must adequately explain his analysis
and reasoning in making the findings on which his

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ultimate decision rests, and must address all pertinent
evidence. See, e.g., Ferraris, 728 F.2d at 586–87; Allen ex
rel. Allen v. Barnhart, 2006 WL 2255113, *10 (S.D.N.Y.
Aug.4, 2006) (finding that the ALJ explained his findings
with “sufficient specificity” and cited specific reasons for
his decision). “ ‘It is self-evident that a determination
by the [ALJ] must contain a sufficient explanation of
[his] reasoning to permit the reviewing court to judge the
adequacy of [his] conclusions.’ “ Pacheco v. Barnhart, 2004
WL 1345030, *4 (E.D.N.Y. June 14, 2004) (quoting Rivera
v. Sullivan, 771 F.Supp. 1339, 1354 (S.D.N.Y.1991)).
Courts in this Circuit have long held that an ALJ's “
‘failure to acknowledge relevant evidence or explain its
implicit rejection is plain error.’ “ Kuleszo v. Barnhart,
232 F.Supp.2d 44, 57 (W.D.N.Y.2002) (quoting Pagan v.
Chater, 923 F.Supp. 547, 556 (S.D.N.Y.1996)).
*19 The Act authorizes a court, when reviewing decisions
of the SSA, to order further proceedings, as expressly
stated in sentence four of 42 U.S.C. § 405(g): “The
court shall have power to enter, upon the pleadings
and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner
of Social Security, with or without remanding the cause
for rehearing.” 42 U .S.C. § 405(g); Butts v. Barnhart, 388
F.3d 377, 382 (2d Cir.2004). If “ ‘there are gaps in the
administrative record or the ALJ has applied an improper
legal standard,’ “ the court will remand the case for further
development of the evidence or for more specific findings.
Rosa, 168 F.3d at 82–83 (quoting Pratts v. Chater, 94 F.3d
34, 39 (2d Cir.1996)). “ ‘[W]hen further findings would
so plainly help to assure the proper disposition of the
claim, ... remand is particularly appropriate.’ “ Butts, 388
F.3d at 385 (quoting Rosa, 168 F.3d at 83). If, however,
the record provides “ ‘persuasive proof of disability and
a remand for further evidentiary proceedings would serve
no purpose,’ “ the court may reverse and remand solely
for the calculation and payment of benefits. Williams v.
Apfel, 204 F.3d 48, 50 (2d Cir.1999) (quoting Arroyo
v. Callahan, 973 F.Supp. 397, 400 (S.D.N.Y.1997)); see
e.g., Carroll, 705 F.2d at 644 (where “reversal is based
solely on the [Commissioner's] failure to sustain his
burden of adducing evidence of [plaintiff's] capability of
gainful employment and the [Commissioner's] finding that
[plaintiff] can engage in ‘sedentary’ work is not supported
by substantial evidence, no purpose would be served by
remanding the case for a rehearing[.]”).

Therefore, if the ALJ failed in his duty to fully develop the
record or committed other legal error, a reviewing court
should reverse the Commissioner's
decision and remand the appeal
from the Commissioner's denial of
benefits for further development of
the evidence. If, on the other hand,
the [reviewing] court determines
there is substantial evidence of
disability in the administrative
record, it may decide to reverse
the Commissioner's decision, make
a determination of disability and
remand solely for the calculation
of benefits. Such a remedy is an
extraordinary action and is proper
only when further development of
the record would serve no purpose.
Rivera v. Barnhart,
(S.D.N.Y.2005).

379

F.Supp.2d

599,

604

II. Proof of Disability
For purposes of Social Security disability insurance
benefits, one is “disabled” within the meaning of the
Act, and thus entitled to benefits, when he is unable “to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment
which can be expected to result in death or which has
lasted or can be expected to last for a continuous period
of not less than twelve months.” 28 Carroll, 705 F.2d
at 641–42 (quoting 42 U.S.C. § 423(d)(1)(A)). The Act
additionally requires that the impairment be “of such
severity that [plaintiff] is not only unable to do his previous
work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial
gainful work which exists in the national economy.”
Butts, 388 F.3d at 383 (quoting 42 U.S.C. § 423(d)(2)(A)).
Furthermore, if plaintiff can perform substantial gainful
work existing in the national economy, it is immaterial, for
purposes of the Act, that openings for such work may not
be found in the immediate area where she lives or that a
specific job vacancy may not exist. 42 U.S.C. § 423(d)(2)
(A).
28

Substantial gainful activity is defined as work that:
“(a) [i]nvolves doing significant and productive
physical or mental duties; and (b) [i]s done (or

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intended) for pay or profit.” 20 C.F .R. §§ 404.1510,
416.910.

education and work experience. Based on these
factors, the Grids indicate whether the claimant can
engage in any other substantial gainful work that
exists in the economy. Zorilla, 915 F.Supp. at 667.
The Grids classify work into five categories based
on the exertional requirements of the different jobs.
Specifically, it describes work as sedentary, light,
medium, heavy or very heavy, based on the job
requirements in the primary strength activities of
sitting, standing, walking, lifting, carrying, pushing,
and pulling. Id. at 667 n. 2.

*20 In evaluating disability claims, the Commissioner is
required to apply a five-step process set forth in 20 C.F.R.
§§ 404.1520(a)(4) (i)-(v), 416.920(a)(4)(i)-(v). This Circuit
has described this sequential process as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If not,
the Secretary 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 from 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 Secretary will consider him
disabled without considering vocational factors such
as age, education, and work experience; the Secretary
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
Secretary then determines whether there is other work
which the claimant could perform.
Bush, 94 F.3d at 44–45 (emphasis in original) (quoting
Rivera v. Schweiker, 717 F.2d 719, 722–23 (2d Cir.1983)).
Plaintiff bears the burden of proof on the first four
steps, but the Commissioner bears the burden on the fifth
step, and thus must demonstrate the existence of jobs in
the economy that plaintiff can perform. See, e.g., Rosa,
168 F.3d at 77; Bapp, 802 F.2d at 604. Normally, in
meeting his burden on this fifth step, the Commissioner
can rely on the Medical–Vocational guidelines contained
in 20 C.F.R. Part 404, Subpart P, App. 2, commonly
referred to as “the Grids.” 29 Zorilla, 915 F.Supp. at 667.
However, if the plaintiff suffers from significant nonexertional limitations, 30 exclusive reliance on the Grids is
inappropriate. See Butts, 388 F.3d at 383 (citing Rosa, 168
F.3d at 78); Moulding v. Astrue, 2009 WL 3241397, *12
(S.D.N.Y. Oct.8, 2009) (citing Bapp, 802 F.2d at 605).
29

The Grids take into account the claimant's residual
functional capacity in conjunction with his age,

30

An exertional limitation is a limitation or restriction
imposed by impairments and related symptoms, such
as pain, that affect only a claimant's ability to meet
the strength demands of jobs (i.e., sitting, standing,
walking, lifting, carrying, pushing, and pulling). Rosa,
168 F.3d at 78 n. 2 (citing Zorilla, 915 F.Supp. at
667 n. 3). “[L]imitations or restrictions which affect
[a claimant's] ability to meet the demands of jobs
other than the strength demands, that is, other than
sitting, standing, walking, lifting, carrying, pushing
or pulling, are considered non-exertional.” Samuels
v. Barnhart, 2003 WL 21108321, *11 n. 14 (S.D.N.Y.
May 14, 2003) (quoting 20 C.F.R. § 416.969a(a)); see
also 20 C.F.R. §§ 404.1569a(c)(1)(i)-(vi).

When employing this five-step analysis, the Commissioner
must consider: 1) objective medical facts and clinical
findings; 2) diagnoses and medical opinions of examining
physicians; 3) plaintiff's subjective evidence of pain and
physical incapacity as testified to by himself and others
who observed him; and 4) plaintiff's age, education and
work history. Carroll, 705 F.2d at 642 (citing Parker v.
Harris, 626 F.2d 225, 231 (2d Cir.1980)).

III. Assessment of the Record
Applying the required five-step framework to plaintiff,
the ALJ found that 1) he was not performing substantial
gainful activity, 2) he has a severe medical impairment,
3) his impairment does not meet or medically equal one
of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1, 4) he has no past relevant work because,
as a recent high-school graduate, he has never performed
substantial gainful activity, and 5) he retained the residual
functioning capacity to perform at least simple, routine,
repetitive unskilled work activity with normal supervision.
The ALJ concluded that although the plaintiff's ability
to work at all exertional levels was compromised by
non-exertional limitations, those limitations had little or
no effect on the occupational base of unskilled work

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at all exertional levels, under the Medical–Vocational
guidelines rule 204.00.
*21 We first consider the problems with the ALJ's
finding that the plaintiff's non-exertional limitations had
minimal impact on his ability to perform unskilled
work, specifically his rejection of findings by plaintiff's
treating and examining sources and his failure to consider
the incompleteness of the record before him. We next
consider the validity of the ALJ's reliance on the Medical–
Vocational guidelines to demonstrate the existence of jobs
in the economy that plaintiff would be able to perform.
Finally, we consider the appropriate remedy.

A. The ALJ's Conclusion that the Plaintiff's Non–
Exertional Limitations Did Not Significantly Impact
His Ability to Perform Non–Skilled Work
The key to the ALJ's determination of the plaintiff's
case was his finding that the plaintiff's non-exertional
limitations had little or no effect on his ability to perform
unskilled work. To reach that result, the ALJ had to reject
the opinions of the plaintiff's treating speech and language
therapist and psychotherapist and his examining speech
and language pathologist and psychologists, who found
in substance that the plaintiff suffers from significant
speech and language difficulties as well as problems with
anger, frustration and concentration. At least one treating
source also opined that these limitations prohibited him
obtaining employment. The plaintiff argues that the
Commissioner improperly weighed these opinions. We
agree.

1. The ALJ's Assessment of Ms. Gladstone's Findings
The ALJ failed to properly analyze Ms. Gladstone's
findings, both by neglecting to clarify her qualifications
to determine whether the treating-physician rule should
be applied to her findings and by dismissing her reports
as dated. Based on her four-year treatment relationship
with Baldwin, Ms. Gladstone found him to exhibit
significant difficulties in all areas, including cognitive,
perceptual, speech, language and social emotional deficits.
If accepted, these findings would indicate that plaintiff
suffers from significant non-exertional limitations on his
ability to engage in gainful employment.
The ALJ's decision mentions Ms. Gladstone's reports
several times, but mis-characterizes or distorts her findings
and fails properly to assess their weight. Thus, he refers

to Dr. Rothenberg's exaggeration of the progress that Ms.
Gladstone had noted in the plaintiff's condition, which
Dr. Rothenberg inaccurately described as “excellent”. He
also recounts Ms. Gladstone's conclusion that 95 percent
of the plaintiff's speech is intelligible to others. The ALJ
neglected, however, to cite Ms. Gladstone's observations
that despite the plaintiff's progress “he continues to
display severe delays in all areas of development,” and that
he was challenged by single-step instructions and confused
by materials presented without visual cues. (Tr. 173).
Moreover, although the ALJ mentioned her observation
that Baldwin could not name five states, he did not offer
any explicit evaluation of the significance of such cognitive
deficit.
*22 Apart from ignoring the thrust and potential
significance of Ms. Gladstone's reports, the ALJ neglected
to clarify her credentials and likewise failed to address
whether the so-called treating-physician rule applied to
her findings. The treating-physician rule determines the
weight that is to be given to reports from “acceptable
medical sources” who have treated claimants. 20 C.F.R.
§§ 404.1527(a)(2), 416.927(a)(2). The SSA regulations
identify speech-language pathologists who are licensed
by the State professional licensing agency, those that are
fully certified by the State education agency in their state
of practice, and those who hold a Certificate of Clinical
Competence from the American Speech–Language–
Hearing Association as among acceptable medical sources
to establish a speech or language impairment. 20 C.F.R.
§§ 404.1513(a)(5), 416.913(a)(5). If a qualified speechlanguage pathologist treated a claimant, the pathologist's
report should be evaluated under the treating-physician
rule. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
The rule states that a claimant's “ ‘treating source's
opinion on the issues(s) of the nature and severity of
[a plaintiff's] impairment(s)’ will be given ‘controlling
weight’ if the opinion is ‘well supported by medically
acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence’
“ in the record. Green–Younger v. Barnhart, 335 F.3d
99, 106 (2d Cir.2003) (citing 20 C.F.R. § 404.1527(d)(2))
(emphasis in original); Shaw v. Chater, 221 F.3d 126,
134 (2d Cir.2000); Rosa, 168 F.3d at 78–79 (stating that
the ALJ cannot arbitrarily substitute his own judgment
for competent medical opinion.). Although the treatingphysician rule generally requires deference to the medical
opinion of a plaintiff's treating physician, Schisler v.

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Sullivan, 3 F.3d 563, 567–68 (2d Cir.1993), the opinion of
the treating physician is not afforded controlling weight
if it is not consistent with other substantial evidence in
the record, such as the opinions of other medical experts.
Halloran, 362 F.3d at 32 (the “treating physician's opinion
is not controlling when contradicted ‘by other substantial
evidence in the record.’ “ (quoting Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir.2002))); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d) (2).
Even if the treating physician's opinion conflicts with
other medical evidence, the ALJ must still consider
various “factors” to determine how much weight to give
that doctor's opinion. Among those considerations are:
1) the frequency of examination and length, nature and
extent of the treatment relationship; 2) evidence in support
of the treating physician's opinion; 3) the consistency
of the opinion with the record as a whole; 4) whether
the opinion is from a specialist; and 5) other factors
brought to the SSA's attention that support or contradict
the opinion. Halloran, 362 F.3d at 32 (citing 20 C.F.R.
§ 404.1527(d)(2)); Fox v. Astrue, 2008 WL 828078, *8
(N.D.N.Y. Mar.26, 2008). Additionally, the regulations
direct the Commissioner to “ ‘give good reasons in his
notice of determination or decision for the weight he
give[s] [plaintiff's] treating source's opinion.’ “ Halloran,
362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2)). Failure
to provide explicit “good reasons” for not crediting a
treating source's opinion is a ground for remand. Snell,
177 F.3d at 133 (citing Schaal, 134 F.3d at 505).
*23 During Baldwin's hearing the ALJ expressed
confusion about Ms. Gladstone's qualifications,
questioning whether she was a state-licensed speech
pathologist. (Tr. 212–13). Although at the hearing the
ALJ suggested he would accept the representation of
Baldwin's mother that Ms. Gladstone was a state-licensed
speech pathologist (id.), in his report he referred to
Ms. Gladstone only as a “Learning specialist/speech and
language therapist.” (Tr. 18). Beyond the ALJ's statement
that he was willing to assume that Ms. Gladstone was
licensed, there is no evidence in the record that he
attempted to determine whether Ms. Gladstone was in fact
a licensed or certified speech pathologist.
If the ALJ intended to consider Ms. Gladstone as a
qualified treating medical source—as implied by his
statement at the hearing—his decision improperly applied
the treating-physician rule to her findings by failing to

provide “good reasons” for refusing to afford her opinions
controlling weight. Moreover, his decision omitted any
discussion of how the above-listed factors influenced the
weight he accorded to her opinion. The ALJ's failure to
explain his consideration of a treating source's opinion is
itself ground for remand. Snell, 177 F.3d at 133 (citing
Schaal, 134 F.3d at 505).
If, on the other hand, the ALJ decided that he was not
willing to assume that Ms. Gladstone was a qualified
treating source—contrary to his statement at the hearing
—his failure to contact Ms. Gladstone to determine
whether she satisfied the requirements of an “acceptable
medical source” was error. By neglecting to determine
whether Ms. Gladstone was a licensed or certified speech
pathologist, he failed to meet his responsibility to resolve
ambiguities or evidentiary gaps in the record. 20 C.F.R.
§§ 404.1512(e), 416.912(e) (ALJ must seek “additional
evidence or clarification” when “the report from your
medical source contains a conflict or ambiguity that must
be resolved” or “the report does not contain all the
necessary information”); see also Rosa, 168 F.3d at 79
(discussing ALJ's obligation to develop record).
Moreover, even if Ms. Gladstone's reports did not qualify
as acceptable medical evidence, triggering the requirement
that the ALJ give her opinions as a treating source
controlling weight absent “good reasons” for not doing
so, her reports would qualify as one of the “other sources”
of information that the ALJ may consider to determine
the plaintiff's disability under 20 C.F.R. §§ 404.1513(d)
(1), 416.913(d)(1). The SSA has ruled that opinions
from sources who do not qualify as “acceptable medical
sources,” including therapists, are “important and should
be evaluated on key issues such as impairment severity
and functional effects.” SSR 06–03p, Titles II and XVI:
Considering Opinions and Other Evidence From Sources
Who are Not “Acceptable Medical Sources” in Disability
Claims, 2006 WL 2329939, at *3 (Aug. 9, 2006); see
also Allen v. Astrue, 2008 WL 660510, at *9 (N.D.N.Y.
Mar.10, 2008) (remanding in part because the ALJ did
not evaluate treating therapist's opinion). In appropriate
circumstances, the opinions of non-acceptable medical
sources may even be given more weight than those of
treating physicians. SSR 06–03p, 2006 WL 2329929, at *5.
*24 Even if Ms. Gladstone only qualifies as an “other
source[ ]” of information, the ALJ's decision to discount
her reports because he considered them to be out-of-

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date instead of seeking an updated report also constitutes
error. The ALJ stated that he did not give significant
weight to the evidence in the record, including Ms.
Gladstone's reports. He chose instead to credit the
testimony of the consulting non-examining pediatrician
Dr. Rothenberg that the plaintiff is capable of performing
simple, repetitive tasks as an adult. (Tr. 211). The ALJ's
rationale for this decision was that the “claimant is
indicated to have improved significantly since much of the
evidence of record was recorded.” (Tr. 19). 31 During the
plaintiff's hearing, the ALJ specifically described one of
Ms. Gladstone's reports dated May 12, 2004 as “a little
antiquated”. (Tr. 213).
31

It should be noted that any progress by the plaintiff in
the year preceding his hearing before the ALJ would
not necessarily require a finding of “not disabled,”
as the definition of a disability includes “the inability
to do any substantial gainful activity by reason
of any medically determinable physical or mental
impairment which ... has lasted ... for a continuous
period of not less than 12 months.” 20 C.F.R. §§
404.1505(a), 416.905(a). Plaintiff claims a disability
beginning on July 8, 2004, but his hearing did not
occur until July 17, 2006. To the extent that the
plaintiff was unable to engage in substantial gainful
activity for a period running through July 8, 2005, the
plaintiff's condition could still meet the definition of
a disability despite his subsequent improvement.

In light of the ALJ's obligation to develop the record, his
failure to contact Ms. Gladstone to request an updated
appraisal of the plaintiff's condition instead of dismissing
her reports as “antiquated” was improper. See Rivera,
379 F.Supp.2d at 608 (remanding based in part on ALJ's
failure to request updated statements from claimant's
treating physicians). On remand, the ALJ should contact
Ms. Gladstone to clarify her qualifications, seek an
updated report if necessary, and evaluate her opinion in
light of the standards discussed above.

2. The ALJ's Assessment of Mr. Consolini's Findings
The ALJ's decision also improperly failed to consider
the reports of Mr. Consolini, a psychotherapist who
treated the plaintiff weekly from January to October
2003 and twice-weekly from November 2003 through
at least August 2004. Mr. Consolini acknowledged
that Baldwin had made progress in his academic and
personal adjustment, but noted that he continued to suffer
from difficult-to-control anger, a limited tolerance for

frustration and difficulties concentrating. Mr. Consolini
noted that plaintiff's psychological problems had rendered
him unable to gain employment or support himself. The
ALJ did not mention Mr. Consolini's reports in his
decision, except to note that on page 15 of the August 14,
2004 Psychiatric Review Technique form filled in by Dr.
Charles, he quoted Mr. Consolini's view that the plaintiff
is expected to finish high school and become gainfully
employed. 32 (Tr. 17).
32

As noted supra p. 34, the fifteenth page of Dr.
Charles' report is actually the report of the Speech
and Language Medical Consultant referred to in the
record only as “Liddie.” (Tr. 150).

Courts have long held that an ALJ's “ ‘failure to
acknowledge relevant evidence or to explain its implicit
rejection is plain error.” Kuleszo, 232 F.Supp.2d at 57
(citing Pagan, 923 F.Supp. at 556). As a psychotherapist,
Mr. Consolini is admittedly not an acceptable medical
source to establish the plaintiff's disability under 20
C.F.R. §§ 404.1513(a), 416.913(a), but he qualifies
as one of the “other sources” on which the ALJ
can base his decision under C.F.R. §§ 404.1513(d),
416.913(d). See Mejia v. Barnhart, 261 F.Supp.2d 142, 148
(E.D.N.Y.2003). Given Mr. Consolini's regular contact
with Baldwin, his view plainly would be relevant to
the plaintiff's ability to perform even unskilled work.
The ALJ's oblique reference to one of Mr. Consolini's
reports in his decision—by mentioning an appendix
to a non-examining consultant's report which consists
of another non-examining consultant's citation of Mr.
Consolini's findings—is insufficient to meet his burden of
acknowledging relevant evidence, as it does not indicate
that the ALJ himself reviewed Mr. Consolini's report,
nor does it take into account Mr. Consolini's views on
the plaintiff's current condition. The quoted portion of
Mr. Consolini's report is arguably not even an accurate
representation of the psychotherapist's views, as it omits
his opinion that the plaintiff “remains unable to support
himself” and “has been ... unable to gain employment due
to his psychological problems.” It also fails to mention
Mr. Consolini's findings that the plaintiff continues to
suffer difficulties controlling his anger and frustration and
has trouble concentrating. (Tr. 115).
*25 Moreover, to the extent that the ALJ rejected the
bulk of the medical record (presumably including Mr.
Consolini's findings) as out-of-date, the analysis above
regarding the ALJ's treatment of Ms. Gladstone's reports

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applies with equal force. To discount Mr. Consolini's
reports as outdated instead of requesting an updated
report violated the ALJ's obligation to develop the record.
See Rivera, 379 F.Supp.2d at 607. On remand, the ALJ
should seek an updated report from Mr. Consolini if
necessary and address his views on how the plaintiff's
limitations might affect his ability to perform unskilled
work. 33
33

The ALJ also completely neglected to refer to
Baldwin's Lindamood–Bell test results. Although
only constituting “other sources” of information
about the plaintiff's impairment, based on the analysis
provided above the ALJ should also address these
reports on remand.

3. The ALJ's Assessment of Ms. Singer's Findings
The ALJ's rejection of Ms. Singer's findings in favor of the
conclusion of a non-examining source was also improper.
The ALJ's only reference to Ms. Singer's findings is his
notation that at the hearing the plaintiff's attorney had
highlighted her report that plaintiff tested in the 0.1
percentile on a test of receptive word classes. The ALJ then
noted that Dr. Rothenberg had considered the score to be
unrepresentative of the plaintiff's abilities demonstrated
at the hearing. (Tr. 18). At the hearing, the ALJ also
expressed concern about relying on Ms. Singer's report
because she had evaluated the plaintiff in 2004 “when he
was 18. He's now 20.” (Tr. 208). 34
34

Dr. Rothenberg echoed the ALJ's concern about
relying on Ms. Singer's report at the hearing by stating
that he did not see the plaintiff in 2004 and so
cannot speak to Ms. Singer's results, but that he found
them to be “impossible” in light of the plaintiff's
performance at the hearing. (Tr. 209).

The ALJ's un-explained decision to credit the opinion
of Dr. Rothenberg, a non-examining source, over the
findings of Ms. Singer, which were drawn from her
examination of the plaintiff, is improper. According
to the SSA regulations, generally an ALJ must give
“more weight to the opinion of a source who has
examined you than to the opinion of a source who
has not examined you.” 20 C.F.R. §§ 404.1527(d)(1),
416.927(d)(1); see Echevarria v. Apfel, 46 F.Supp.2d 282,
292 (S.D.N.Y.1999); Filocomo v. Chater, 944 F.Supp.
165, 170 n. 4 (E.D.N.Y.1996) (“[T]he conclusions of a
physician who merely reviews a medical file and performs
no examination are entitled to little if any weight.”)

Furthermore, when determining the weight to be given to
non-examining sources, an ALJ must apply the factors
discussed above in reference to treating sources: 1) the
length of the relationship between the source and the
claimant, 2) the nature and extent of the relationship,
3) the supportability of the source's opinion, 4) the
consistency of the source's opinion with the record as a
whole, and 5) the specialization of the source. See 20
C.F.R. §§ 404.1527(d)(2) & (f), 416.927(d)(2) & (f). See also
Echevarria, 46 F.Supp.2d at 292.
Here, the ALJ did not discuss these factors in explaining
why Dr. Rothenberg's opinion as a non-examining source
should be credited over the opinion of an examining
source. Indeed, Dr. Rothenberg did not meet or examine
the plaintiff prior to the hearing, but rather based
his opinion on the plaintiff's medical file and a mere
five transcript pages worth of the plaintiff's testimony
at his hearing. (See Tr. 194–97, 199). Moreover, Dr.
Rothenberg possesses no documented specialization in
speech or language therapy. (Tr. 209). The ALJ's failure
to explain how the above-listed factors justify affording
more weight to Dr. Rothenberg's opinion than Ms.
Singer's was therefore improper. See Burgess v. Astrue, 537
F.3d 117, 130–32 (2d Cir.2008) (remanding due to ALJ's
failure to give good reasons for adopting non-examining
expert's views at hearing over those of treating physician);
Pfeiffer v. Astrue, 576 F.Supp.2d 956, 961 (W.D.Wis.2008)
(remanding in part because of ALJ's failure to indicate he
applied relevant factors in deciding to give more weight to
non-examining consultant than examining consultant). 35
On remand, the ALJ must obtain an update of Ms.
Singer's report, if necessary, and then explicitly assess the
relative weight given to her findings and the opinion of Dr.
Rothenberg. 36
35

36

Again, to the extent that the ALJ dismissed Ms.
Singer's reports on the ground that they were outof-date, as suggested by his comment at the hearing,
this was error because the ALJ neglected his duty to
properly develop the record.
Although the ALJ's discussion of the weight he
afforded to Dr. Shackelford's consulting source
report similarly could be enhanced on remand, since
the ALJ's description of Ms. Shackelford's findings
was somewhat more robust than his treatment of the
rest of the record, we do not specifically target any
lapses with regard to her report.

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2009 WL 4931363, 148 Soc.Sec.Rep.Serv. 455
Likewise, on remand the ALJ could expand upon
his treatment of Baldwin's IEP, but given that he
acknowledged its existence and primary findings in
his decision we do not specifically take issue with
his consideration of it.

4. The ALJ's Assessment of Dr. Algaze's Findings
*26 The ALJ's failure to address the bulk of Dr.
Algaze's findings was also improper. Dr. Algaze examined
Baldwin and found that he has difficulty relating to
others, suffers from mild-to-moderate receptive and
expressive language skills deficits and exhibits lowaverage intelligence. He diagnosed the plaintiff with an
adjustment reaction to illness with depression and anxiety,
and speech-development and personality disorders, and
he suggested ruling out borderline mental retardation. Dr.
Algaze offered a guarded prognosis for Baldwin, strongly
suggesting that he seek psychiatric treatment as well as
vocational rehabilitation and psychological testing. (Tr.
125–26).
The ALJ did not discuss Dr. Algaze's report other than to
state that Dr. Rothenberg disagreed with the need to rule
out borderline mental retardation based on IQ test results
in the record from another source. (Tr. 18). The ALJ did
not address the bulk of Dr. Algaze's findings, including his
conclusions regarding the plaintiff's difficulties interacting
with others.
As a psychiatrist, Dr. Algaze qualifies as an acceptable
medical source under the SSA regulations. White
v. Comm'r of Soc. Sec., 302 F.Supp.2d 170, 176
(W.D.N.Y.2004) (citing 20 C.F.R. § 416.913(a)). The
regulations obligate the SSA to consider medical opinions
about the nature and severity of a claimant's impairments.
20 C.F.R. §§ 404.1527(b), 416.927(b) (“[W]e will always
consider the medical opinions in your case record.”)
Moreover, as evidence bearing on the potential difficulties
plaintiff may encounter in performing even unskilled
work, Dr. Algaze's report constitutes relevant evidence,
which the ALJ must acknowledge and either accept or
explain why he does not do so. Kuleszo, 232 F.Supp.2d at
57 (citing Pagan, 923 F.Supp. at 556). 37 On remand, the
ALJ must address Dr. Algaze's findings.
37

Again, any concerns about the timeliness of Dr.
Algaze's findings must be addressed by seeking an
updated report as opposed to rejecting his report out-

of-hand, given the ALJ's obligation to develop the
record.

5. The ALJ's Assessment of the School Psychologists'
Findings
Baldwin was also examined by two school psychologists,
who determined that he experienced anxiety, difficulties
relating to others and language deficiencies. The ALJ
failed to refer to either of these reports in his decision, and
this omission was improper.
Under SSA regulations, licensed or certified psychologists
constitute acceptable medical sources to determine
whether a claimant has a medically determinable
impairment. This includes school psychologists for
purposes of determining, inter alia, learning disabilities
and borderline intellectual functioning. 20 CFR §§
404.1513(a)(2), 416.913(a)(2). The ALJ is obligated to
address medical opinions and relevant evidence, such as
the psychologists' views about the impact and severity
of Baldwin's non-exertional limitations. 20 C.F.R. §§
404.1527(b), 416.927(b); Kuleszo, 232 F.Supp.2d at 57
(citing Pagan, 923 F.Supp. at 556). This obligation is
not diminished by the fact that the testifying “expert”
pediatrician did not refer to the psychologists' reports
during his testimony at the plaintiff's hearing. On remand,
the ALJ must address the school psychologists' reports.

B. The ALJ's Reliance on the Medical–Vocational
Guidelines
*27 If a plaintiff shows that his impairment renders him
unable to perform his past work—as the SSA conceded
here—the burden then shifts to the Commissioner to show
that there is other gainful work in the national economy
that the plaintiff could perform. See Carroll, 705 F.2d at
642 (citing Berry, 675 F.2d at 467); Campbell v. Sec'y of
Health and Human Servs., 665 F.2d 48, 51 (2d Cir.1981),
rev'd on other grounds sub nom. Heckler v. Campbell, 461
U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). Typically
the Commissioner can sustain this burden by referencing
the Medical–Vocational Guidelines, Zorilla, 915 F.Supp.
at 667, but sole reliance on the Guidelines is improper
when the plaintiff suffers from non-exertional limitations
that significantly limit his employment opportunities. See
Butts, 388 F.3d at 383 (citing Rosa, 168 F.3d at 78);
Moulding, 2009 WL 3241397, at *12 (citing Bapp, 802
F.2d at 605). A plaintiff's range of potential employment is
significantly limited when he suffers from the “additional
loss of work capacity beyond a negligible one or, in other

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2009 WL 4931363, 148 Soc.Sec.Rep.Serv. 455

words, one that so narrows a claimant's possible range
of work as to deprive him of a meaningful employment
opportunity.” Bapp, 802 F.2d at 606.
Baldwin argues that the ALJ's reliance on the Guidelines
to sustain his step-five burden in his case was improper in
light of the psychiatric review technique form completed
by Dr. Charles, indicating that the plaintiff suffers from
a moderate degree of limitation in maintaining social
functioning and has had one or two repeated episodes of
deterioration, each of extended duration. (Pl.'s Mem. 22–
23). The plaintiff argues that under applicable caselaw,
including Zwick, 1998 WL 426800, such limitations
preclude sole reliance on the Guidelines. 38 We agree.
38

As we consider caselaw, including that cited by the
plaintiff, to determine the issue, we need not resolve
the dispute between the parties as to the proper weight
to accord to the partially redacted Appeals Council
decision appended to the plaintiff's memorandum.

In Zwick, the plaintiff's consulting physician determined
that the plaintiff suffered from a personality disorder
which resulted in “moderate limitations of [activities of
daily living] and in maintaining social functioning.” 1998
WL 426800, at * 8. The court concluded that such
“non-exertional impairments cannot be said to result in
only a ‘negligible’ loss of work capacity.” Id. (quoting
Bapp, 802 F.2d at 606). The court determined that
the plaintiff's moderate limitations required the ALJ to
find that the plaintiff's range of potential employment
was significantly limited, thus precluding sole reliance
on the Grids. Id. at *9; see also Moulding, 2009 WL
3241397, at *12 (remanding because ALJ failed to consult
vocational expert after acknowledging claimant's lack of
concentration, attention and memory and inability to
tolerate stress precluded her from performing past jobs);
Shipman v. Astrue, 2008 WL 216615, * 10 (S.D.N.Y.
Jan.23, 2008) (remanding when ALJ failed to introduce
vocational expert testimony in light of evidence that
claimant suffered from moderate and/or marked nonexertional limitations in “understanding and following
instructions, working with others, finishing a work week,
and avoiding major episodes”). Cf. DiBlasi v. Comm'r
of Soc. Sec., 660 F.Supp.2d 401, 2009 WL 2584827,
*6 (N.D.N.Y.2009) (affirming Commissioner's denial of
benefits, in part based on vocational expert testimony
that despite claimant's moderate difficulties in social
functioning, concentration, persistence, and pace, he
could perform jobs that existed in the national economy).

*28 In Baldwin's case, a consulting physician found
that his social functioning ability was moderately limited,
and that he had suffered one or two repeated episodes
of deterioration, each of extended duration. (Tr. 146).
Moreover, the mental RFC completed by the same
physician found the plaintiff to suffer from moderate
limitations in numerous areas that bear on activities
of daily living and social functioning. (Tr. 131–32).
These findings are supported by substantial evidence in
the record from the plaintiff's treating and examining
sources. Therefore, as in Zwick, we consider the ALJ's
conclusion that the plaintiff's non-exertional limitations
did not significantly impact his employment prospects to
be erroneous. On remand, the ALJ should be required
to introduce evidence from a vocational expert 39 or
equivalent evidence about the presence of jobs in the
national economy open to the plaintiff despite his nonexertional limitations.
39

We emphasize that although Mr. Weinstein, the state
disability analyst who initially reviewed Baldwin's
claims for benefits, has at times been referred
to as a vocational expert, there is no indication
of such expertise in the record. Moreover, the
Commissioner's memoranda do not argue that Mr.
Weinstein's opinion rendered in the process of
denying the plaintiff's claims satisfies the requirement
of introducing testimony from a vocational expert or
its equivalent.

We also note that the ALJ's ultimate conclusion about
the availability of jobs despite the plaintiff's nonexertional limitations was premised on legal errors in the
consideration of the medical record, as discussed above.
On remand, when assessing the evidence at stage five, the
ALJ should take into account his re-evaluation of the
medical record in light of the proper legal standards and a
more fully developed record in evaluating the severity of
the impact of plaintiff's non-exertional limitations on the
range of employment options available to him.

C. Nature of the Remedy
For reasons noted, the Commissioner's decision cannot
stand. The question remains, however, whether the case
should be remanded for further consideration or simply
for calculation of benefits. The plaintiff's motion papers
could be read to seek a remand solely for the calculation
of benefits. 40 If so, we disagree.

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2009 WL 4931363, 148 Soc.Sec.Rep.Serv. 455

40

The plaintiff's complaint sought a judgment reversing
the Commissioner's decision and granting the
plaintiff's claim for disability benefits. (Compl. at
p. 4). We interpret this request as one to remand
the case merely for a calculation of benefits. The
plaintiff's memorandum in support of his motion
for judgment on the pleadings sought to have the
case remanded to the Commissioner for “additional
proceedings” (Pl.'s Mem. 24), which could be read,
in light of the plaintiff's complaint, as requesting a
remand to calculate benefits.

As noted, upon a finding that an administrative record
is incomplete or that an ALJ has applied improper
legal standard, courts generally remand the matter to
the Commissioner for further consideration. Curry v.
Apfel, 209 F.3d 117, 124 (citing Rosa, 168 F.3d at 82–
83) (“Where there are gaps in the administrative record
or the ALJ has applied an improper legal standard,
we have, on numerous occasions, remanded for further
development of the evidence”), superseded by statute on
other grounds, 20 C.F.R. § 404.1560(c)(2). In addition,
where the ALJ failed to develop the record sufficiently
to make appropriate disability determinations, remand
for further findings that would plainly help to assure
the proper disposition of plaintiff's claim is particularly
appropriate. Butts, 388 F.3d at 386–87 (citing Rosa, 168
F.3d at 83).
In this case, there are gaps in the administrative
record, and the ALJ has, in various respects, applied
improper legal standards. We cannot say, however, that
the evidentiary record at present dictates a finding of
disability. A remand is therefore particularly appropriate
because it would allow the ALJ to more fully develop
the record as necessary, re-weigh the evidence from the
plaintiff's treating and examining sources, and introduce
evidence from a vocational expert on jobs available to
the plaintiff despite his non-exertional limitations. See
End of Document

Butts, 388 F.3d at 387 (where a remand was appropriate
because the ALJ failed to call a vocational expert, and
thus, the record is incomplete and “further findings” are
appropriate “to assure the proper disposition of [the]
claim.”); Schaal, 134 F.3d at 505 (remanding for ALJ to
develop record as necessary and re-weigh evidence).

CONCLUSION
*29 For the reasons noted, we recommend that plaintiff's
motion be granted in part, that the Commissioner's
motion be denied, and that this case be remanded to the
Commissioner for further proceedings.
Pursuant to Rule 72 of the Federal Rules of Civil
Procedure, the parties shall have ten (10) days from
this date to file written objections to this Report and
Recommendation. Such objections shall be filed with the
Clerk of the Court and served on all adversaries, with extra
copies to be delivered to the chambers of the Honorable
Richard J. Holwell, Room 1950, 500 Pearl Street, New
York, New York 10007–1312 and to the chambers of the
undersigned, Room 1670, 500 Pearl Street, New York,
New York 10007–1312. Failure to file timely objections
may constitute a waiver of those objections both in the
District Court and on later appeal to the United States
Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150,
106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474
U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Small
v. Sec'y of Health and Human Services, 892 F.2d 15, 16
(2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a),
6(e).

All Citations
Not Reported in F.Supp.2d, 2009 WL 4931363, 148
Soc.Sec.Rep.Serv. 455

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TITLES II AND XVI: DETERMINING CAPABILITY TO DO..., SSR 96-9P (1996)

SSR 96-9P (S.S.A.), 1996 WL 374185
Social Security Ruling
POLICY INTERPRETATION RULING TITLES II AND XVI: DETERMINING
CAPABILITY TO DO OTHER WORK--IMPLICATIONS OF A RESIDUAL
FUNCTIONAL CAPACITY FOR LESS THAN A FULL RANGE OF SEDENTARY WORK
SSR 96-9p
July 2, 1996
*1 PURPOSE: To explain the Social Security Administration's policies regarding the impact of a residual functional
capacity (RFC) assessment for less than a full range of sedentary work on an individual's ability to do other work. In
particular, to emphasize that:

1. An RFC for less than a full range of sedentary work reflects very serious limitations resulting from an individual's
medical impairment(s) and is expected to be relatively rare.
2. However, a finding that an individual has the ability to do less than a full range of sedentary work does not necessarily
equate with a decision of “disabled.” If the performance of past relevant work is precluded by an RFC for less than the
full range of sedentary work, consideration must still be given to whether there is other work in the national economy
that the individual is able to do, considering age, education, and work experience.

CITATIONS (AUTHORITY): Sections 223(d) and 1614(a) of the Social Security Act (the Act), as amended;
Regulations No. 4, sections 404.1513(c), 404.1520, 404.1520a, 404.1545, 404.1546, 404.1560, 404.1561,
404.1562, 404.1563 through 404.1567, 404.1569, 404.1569a; appendix 1 of subpart P, section 12.00;
appendix 2 of subpart P, sections 200.00 and 201.00; Regulations No. 16, sections 416.913(c), 416.920,
416.920a, 416.945, 416.946, 416.960, 416.961, 416.962, 416.963 through 416.967, 416.969 and 416.969a.
INTRODUCTION: Under the sequential evaluation process, once it has been determined that an individual is not
engaging in substantial gainful activity and has a “severe” medically determinable impairment(s) which, though not
meeting or equaling the criteria of any listing, prevents the individual from performing past relevant work (PRW), it
must be determined whether the individual can do any other work, considering the individual's RFC, age, education,
and work experience.
RFC is what an individual can still do despite his or her functional limitations and restrictions caused by his or her
medically determinable physical or mental impairments. It is an administrative assessment of the extent to which an
individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical
or mental limitations or restrictions that may affect his or her capacity to perform work-related physical and mental
activities. RFC is assessed by adjudicators at each level of the administrative review process based on all of the
relevant evidence in the case record, including information about the individual's symptoms and any “medical source
statements”--i.e., opinions about what the individual can still do despite a severe impairment(s)--submitted by an
individual's treating source(s) or other acceptable medical source. 1
*2 RFC is the individual's maximum remaining ability to perform sustained work on a regular and continuing basis;
i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule. It is not the least an individual can do, but the most,

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based on all of the information in the case record. The RFC assessment considers only those limitations and restrictions
that are caused by an individual's physical or mental impairments. It does not consider limitations or restrictions due to
age or body habitus, since the Act requires that an individual's inability to work must result from the individual's physical
or mental impairment(s). (See SSR 96-8p, “Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims.”)
Initially, the RFC assessment is a function-by-function assessment based upon all of the relevant evidence of an
individual's ability to perform work-related activities. This RFC assessment is first used for a function-by-function
comparison with the functional demands of an individual's PRW as he or she actually performed it and then, if necessary,
as the work is generally performed in the national economy. 2
However, at the last step of the sequential evaluation process, the RFC assessment is used to determine an individual's
“maximum sustained work capability” and, where solely non-exertional impairments are not involved, must be expressed
in terms of the exertional classifications of work: sedentary, light, medium, heavy, and very heavy work. The rules
of appendix 2 of subpart P of Regulations No. 4 take administrative notice of the existence of numerous unskilled
occupations within each of these exertional levels. The rules are then used to direct decisions about whether an individual
is disabled or, when the individual is unable to perform the full range of work contemplated by an exertional level(s), as
a framework for decisionmaking considering the individual's RFC, age, education, and work experience.
The impact of an RFC for less than a full range of sedentary work is especially critical for individuals who have not
yet attained age 50. Since age, education, and work experience are not usually significant factors in limiting the ability
of individuals under age 50 to make an adjustment to other work, 3 the conclusion whether such individuals who are
limited to less than the full range of sedentary work are disabled will depend primarily on the nature and extent of
their functional limitations or restrictions. On the other hand, since the rules in Table No. 1 of appendix 2, “Residual
Functional Capacity: Maximum Sustained Work Capability Limited to Sedentary Work as a Result of Severe Medically
Determinable Impairment(s),” direct a decision of “disabled” for individuals age 50 and over who are limited to a full
range of sedentary work, unless the individual has transferable skills or education that provides for direct entry into
skilled sedentary work, the impact of an RFC for less than the full range of sedentary work in such individuals is less
critical.
*3 POLICY INTERPRETATION: Under the regulations, “sedentary work” represents a significantly restricted range
of work. Individuals who are limited to no more than sedentary work by their medical impairments have very serious
functional limitations. For the majority of individuals who are age 50 or older and who are limited to the full range of
sedentary work by their medical impairments, the rules and guidelines in appendix 2 require a conclusion of “disabled.”
Nevertheless, the rules in Table No. 1 in appendix 2 take administrative notice that there are approximately 200 separate
unskilled sedentary occupations, each representing numerous jobs, in the national economy. 4 Therefore, even though
“sedentary work” represents a significantly restricted range of work, this range in itself is not so prohibitively restricted
as to negate work capability for substantial gainful activity in all individuals.
Moreover, since each occupation administratively noticed by Table No. 1 represents numerous jobs, the ability to do
even a limited range of sedentary work does not in itself establish disability in all individuals, although a finding of
“disabled” usually applies when the full range of sedentary work is significantly eroded (see Using the Rules in Table
No. 1 as a Framework: “Erosion” of the Occupational Base below). In deciding whether an individual who is limited
to a partial range of sedentary work is able to make an adjustment to work other than any PRW, the adjudicator is
required to make an individualized determination, considering age, education, and work experience, including any skills
the individual may have that are transferable to other work, or education that provides for direct entry into skilled work,
under the rules and guidelines in the regulations.

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Sedentary Work
The ability to perform the full range of sedentary work requires the ability to lift no more than 10 pounds at a time
and occasionally to lift or carry articles like docket files, ledgers, and small tools. Although a sedentary job is defined
as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required occasionally and other sedentary criteria are met. “Occasionally”
means occurring from very little up to one- third of the time, and would generally total no more than about 2 hours of
an 8-hour workday. Sitting would generally total about 6 hours of an 8-hour workday. Unskilled sedentary work also
involves other activities, classified as “nonexertional,” such as capacities for seeing, manipulation, and understanding,
remembering, and carrying out simple instructions.

The Occupational Base for Sedentary Work
The term “occupational base” means the approximate number of occupations that an individual has the RFC to
perform considering all exertional and nonexertional limitations and restrictions. (See SSR 83-10, “Titles II and XVI:
Determining Capability to Do Other Work--The Medical- Vocational Rules of Appendix 2” (C.E. 1981-1985, p. 516).) A
full range of sedentary work includes all or substantially all of the approximately 200 5 unskilled sedentary occupations
administratively noticed in Table No. 1.
*4 Thus, the RFC addressed by a particular rule in Table No. 1 establishes an occupational base that at a minimum
includes the full range of unskilled sedentary occupations administratively noticed. The base may be broadened by the
addition of specific skilled or semiskilled occupations that an individual with an RFC limited to sedentary work can
perform by reason of his or her education or work experience. However, if the individual has no transferable skills or
no education or training that provides for direct entry into skilled work, the occupational base represented by the rules
in Table No. 1 comprises only the sedentary unskilled occupations in the national economy that such an individual can
perform.
The rules in Table No. 1 direct conclusions as to disability where the findings of fact coincide with all of the criteria
of a particular rule; i.e., RFC (a maximum sustained work capability for sedentary work) and the vocational factors
of age, education, and work experience. In order for a rule in Table No. 1 to direct a conclusion of “not disabled,”
the individual must be able to perform the full range of work administratively noticed by a rule. This means that the
individual must be able to perform substantially all of the strength demands defining the sedentary level of exertion,
as well as the physical and mental nonexertional demands that are also required for the performance of substantially
all of the unskilled work considered at the sedentary level. Therefore, in order for a rule to direct a conclusion of “not
disabled,” an individual must also have no impairment that restricts the nonexertional capabilities to a level below those
needed to perform unskilled work, in this case, at the sedentary level.

Using the Rules in Table No. 1 as a Framework: “Erosion” of the Occupational Base
Where any one of the findings of fact does not coincide with the corresponding criterion of a rule in Table No. 1 (except
in those cases where the concept of borderline age applies) 6 , the rule does not direct a decision. In cases such as the
following, the medical-vocational rules must be used as a framework for considering the extent of any erosion of the
sedentary occupational base:
* Any one of an individual's exertional capacities is determined to be less than that required to perform a full range of
sedentary work; or
* Based on an individual's exertional capacities, a rule in Table No. 1 would direct a decision of “not disabled,” but the
individual also has a nonexertional limitation(s) that narrows the potential range of sedentary work to which he or she

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might be able to adjust (i.e., the individual has the exertional capacity to do the full range of sedentary work, but the
sedentary occupational base is reduced because of at least one nonexertional limitation).

When there is a reduction in an individual's exertional or nonexertional capacity so that he or she is unable to perform
substantially all of the occupations administratively noticed in Table No. 1, the individual will be unable to perform
the full range of sedentary work: the occupational base will be “eroded” by the additional limitations or restrictions.
However, the mere inability to perform substantially all sedentary unskilled occupations does not equate with a finding of
disability. There may be a number of occupations from the approximately 200 occupations administratively noticed, and
jobs that exist in significant numbers, that an individual may still be able to perform even with a sedentary occupational
base that has been eroded.
*5 Whether the individual will be able to make an adjustment to other work requires adjudicative judgment regarding
factors such as the type and extent of the individual's limitations or restrictions and the extent of the erosion of the
occupational base; i.e., the impact of the limitations or restrictions on the number of sedentary unskilled occupations or
the total number of jobs to which the individual may be able to adjust, considering his or her age, education, and work
experience, including any transferable skills or education providing for direct entry into skilled work. Where there is
more than a slight impact on the individual's ability to perform the full range of sedentary work, if the adjudicator finds
that the individual is able to do other work, the adjudicator must cite examples of occupations or jobs the individual
can do and provide a statement of the incidence of such work in the region where the individual resides or in several
regions of the country.

Exertional and Nonexertional Limitations and Restrictions
Exertional capacity addresses an individual's limitations and restrictions of physical strength and defines the individual's
remaining ability to perform each of seven strength demands: Sitting, standing, walking, lifting, carrying, pushing, and
pulling. An exertional limitation is an impairment-caused limitation of any one of these activities.
Nonexertional capacity considers any work-related limitations and restrictions that are not exertional. Therefore,
a nonexertional limitation is an impairment-caused limitation affecting such capacities as mental abilities, vision,
hearing, speech, climbing, balancing, stooping, kneeling, crouching, crawling, reaching, handling, fingering, and feeling.
Environmental restrictions are also considered to be nonexertional.
Thus, it is the nature of an individual's limitations and restrictions, not certain impairments or symptoms, that determines
whether the individual will be found to have only exertional limitations or restrictions, only nonexertional limitations
or restrictions, or a combination of exertional and nonexertional limitations or restrictions. For example, even though
mental impairments often affect nonexertional functions, they may also limit exertional capacity affecting one of
the seven strength demands; e.g., from fatigue or hysterical paralysis. Likewise, symptoms, including pain, are not
intrinsically exertional or nonexertional; when a symptom causes a limitation in one of the seven strength demands, the
limitation must be considered exertional. (See SSR 96-8p, “Titles II and XVI: Assessing Residual Functional Capacity
in Initial Claims.”)

Guidelines for Evaluating the Ability to Do Less Than a Full Range of Sedentary Work
The following sections provide adjudicative guidance as to the impact of various RFC limitations and restrictions on
the unskilled sedentary occupational base. The RFC assessment must include a narrative that shows the presence and
degree of any specific limitations and restrictions, as well as an explanation of how the evidence in file was considered in
the assessment. The individual's maximum remaining capacities to perform sustained work on a regular and continuing
basis (what he or she can still do 8 hours a day, for 5 days a week, or an equivalent work schedule) must be stated.

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*6 An accurate accounting of an individual's abilities, limitations, and restrictions is necessary to determine the extent of
erosion of the occupational base, the types of sedentary occupations an individual might still be able to do, and whether
it will be necessary to make use of a vocational resource. The RFC assessment must be sufficiently complete to allow an
adjudicator to make an informed judgment regarding these issues.

Exertional Limitations and Restrictions
Lifting/carrying and pushing/pulling: If an individual is unable to lift 10 pounds or occasionally lift and carry items like
docket files, ledgers, and small tools throughout the workday, the unskilled sedentary occupational base will be eroded.
The extent of erosion will depend on the extent of the limitations. For example, if it can be determined that the individual
has an ability to lift or carry slightly less than 10 pounds, with no other limitations or restrictions in the ability to
perform the requirements of sedentary work, the unskilled sedentary occupational base would not be significantly eroded;
however, an inability to lift or carry more than 1 or 2 pounds would erode the unskilled sedentary occupational base
significantly. For individuals with limitations in lifting or carrying weights between these amounts, consultation with a
vocational resource may be appropriate.
Limitations or restrictions on the ability to push or pull will generally have little effect on the unskilled sedentary
occupational base.
Standing and walking: The full range of sedentary work requires that an individual be able to stand and walk for a total
of approximately 2 hours during an 8-hour workday. If an individual can stand and walk for a total of slightly less than 2
hours per 8-hour workday, this, by itself, would not cause the occupational base to be significantly eroded. Conversely,
a limitation to standing and walking for a total of only a few minutes during the workday would erode the unskilled
sedentary occupational base significantly. For individuals able to stand and walk in between the slightly less than 2 hours
and only a few minutes, it may be appropriate to consult a vocational resource.
Sitting: In order to perform a full range of sedentary work, an individual must be able to remain in a seated position
for approximately 6 hours of an 8-hour workday, with a morning break, a lunch period, and an afternoon break at
approximately 2-hour intervals. If an individual is unable to sit for a total of 6 hours in an 8-hour work day, the unskilled
sedentary occupational base will be eroded. The extent of the limitation should be considered in determining whether
the individual has the ability to make an adjustment to other work. See Alternate sitting and standing below.
The fact that an individual cannot do the sitting required to perform the full range of sedentary work does not necessarily
mean that he or she cannot perform other work at a higher exertional level. In unusual cases, some individuals will be
able to stand and walk longer than they are able to sit. If an individual is able to stand and walk for approximately 6
hours in an 8-hour workday (and meets the other requirements for light work), there may be a significant number of
light jobs in the national economy that he or she can do even if there are not a significant number of sedentary jobs.
*7 Alternate sitting and standing: An individual may need to alternate the required sitting of sedentary work by standing
(and, possibly, walking) periodically. Where this need cannot be accommodated by scheduled breaks and a lunch period,
the occupational base for a full range of unskilled sedentary work will be eroded. The extent of the erosion will depend
on the facts in the case record, such as the frequency of the need to alternate sitting and standing and the length of time
needed to stand. The RFC assessment must be specific as to the frequency of the individual's need to alternate sitting and
standing. It may be especially useful in these situations to consult a vocational resource in order to determine whether
the individual is able to make an adjustment to other work.
Medically required hand-held assistive device: To find that a hand-held assistive device is medically required, there must
be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and

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describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations;
distance and terrain; and any other relevant information). The adjudicator must always consider the particular facts of
a case. For example, if a medically required hand-held assistive device is needed only for prolonged ambulation, walking
on uneven terrain, or ascending or descending slopes, the unskilled sedentary occupational base will not ordinarily be
significantly eroded.
Since most unskilled sedentary work requires only occasional lifting and carrying of light objects such as ledgers and
files and a maximum lifting capacity for only 10 pounds, an individual who uses a medically required hand-held assistive
device in one hand may still have the ability to perform the minimal lifting and carrying requirements of many sedentary
unskilled occupations with the other hand. 7 For example, an individual who must use a hand-held assistive device to aid
in walking or standing because of an impairment that affects one lower extremity (e.g., an unstable knee), or to reduce
pain when walking, who is limited to sedentary work because of the impairment affecting the lower extremity, and who
has no other functional limitations or restrictions may still have the ability to make an adjustment to sedentary work
that exists in significant numbers. On the other hand, the occupational base for an individual who must use such a device
for balance because of significant involvement of both lower extremities (e.g., because of a neurological impairment)
may be significantly eroded.
In these situations, too, it may be especially useful to consult a vocational resource in order to make a judgment regarding
the individual's ability to make an adjustment to other work.

Nonexertional Limitations and Restrictions
Postural limitations: Postural limitations or restrictions related to such activities as climbing ladders, ropes, or scaffolds,
balancing, kneeling, crouching, or crawling would not usually erode the occupational base for a full range of unskilled
sedentary work significantly because those activities are not usually required in sedentary work. In the SCO, “balancing”
means maintaining body equilibrium to prevent falling when walking, standing, crouching, or running on narrow,
slippery, or erratically moving surfaces. If an individual is limited in balancing only on narrow, slippery, or erratically
moving surfaces, this would not, by itself, result in a significant erosion of the unskilled sedentary occupational base.
However, if an individual is limited in balancing even when standing or walking on level terrain, there may be a significant
erosion of the unskilled sedentary occupational base. It is important to state in the RFC assessment what is meant by
limited balancing in order to determine the remaining occupational base. Consultation with a vocational resource may
be appropriate in some cases.
*8 An ability to stoop occasionally; i.e., from very little up to one-third of the time, is required in most unskilled
sedentary occupations. A complete inability to stoop would significantly erode the unskilled sedentary occupational base
and a finding that the individual is disabled would usually apply, but restriction to occasional stooping should, by itself,
only minimally erode the unskilled occupational base of sedentary work. Consultation with a vocational resource may
be particularly useful for cases where the individual is limited to less than occasional stooping.
Manipulative limitations: Most unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral
manual dexterity. Fine movements of small objects require use of the fingers; e.g., to pick or pinch. Most unskilled
sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.
Any significant manipulative limitation of an individual's ability to handle and work with small objects with both hands
will result in a significant erosion of the unskilled sedentary occupational base. For example, example 1 in section
201.00(h) of appendix 2, describes an individual who has an impairment that prevents the performance of any sedentary
occupations that require bilateral manual dexterity (i.e., “limits the individual to sedentary jobs which do not require
bilateral manual dexterity”). When the limitation is less significant, especially if the limitation is in the non-dominant
hand, it may be useful to consult a vocational resource.

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The ability to feel the size, shape, temperature, or texture of an object by the fingertips is a function required in very few
jobs and impairment of this ability would not, by itself, significantly erode the unskilled sedentary occupational base.
Visual limitations or restrictions: Most sedentary unskilled occupations require working with small objects. If a visual
limitation prevents an individual from seeing the small objects involved in most sedentary unskilled work, or if an
individual is not able to avoid ordinary hazards in the workplace, such as boxes on the floor, doors ajar, or approaching
people or vehicles, there will be a significant erosion of the sedentary occupational base. These cases may require the
use of vocational resources.
Communicative limitations: Basic communication is all that is needed to do unskilled work. The ability to hear and
understand simple oral instructions or to communicate simple information is sufficient. If the individual retains these
basic communication abilities, the unskilled sedentary occupational base would not be significantly eroded in these areas.
Environmental restrictions: An “environmental restriction” is an impairment-caused need to avoid an environmental
condition in a workplace. Definitions for various workplace environmental conditions are found in the SCO; e.g.,
“extreme cold” is exposure to nonweather-related cold temperatures.
*9 In general, few occupations in the unskilled sedentary occupational base require work in environments with extreme
cold, extreme heat, wetness, humidity, vibration, or unusual hazards. The “hazards” defined in the SCO are considered
unusual in unskilled sedentary work. They include: moving mechanical parts of equipment, tools, or machinery; electrical
shock; working in high, exposed places; exposure to radiation; working with explosives; and exposure to toxic, caustic
chemicals. Even a need to avoid all exposure to these conditions would not, by itself, result in a significant erosion of
the occupational base.
Since all work environments entail some level of noise, restrictions on the ability to work in a noisy workplace must
be evaluated on an individual basis. The unskilled sedentary occupational base may or may not be significantly eroded
depending on the facts in the case record. In such cases, it may be especially useful to consult a vocational resource.
Restrictions to avoid exposure to odors or dust must also be evaluated on an individual basis. The RFC assessment
must specify which environments are restricted and state the extent of the restriction; e.g., whether only excessive or even
small amounts of dust must be avoided.
Mental limitations or restrictions: A substantial loss of ability to meet any one of several basic work-related activities on a
sustained basis (i.e., 8 hours a day, 5 days a week, or an equivalent work schedule), will substantially erode the unskilled
sedentary occupational base and would justify a finding of disability. These mental activities are generally required by
competitive, remunerative, unskilled work:
* Understanding, remembering, and carrying out simple instructions.
* Making judgments that are commensurate with the functions of unskilled work--i.e., simple work- related decisions.
* Responding appropriately to supervision, co- workers and usual work situations.
* Dealing with changes in a routine work setting.

A less than substantial loss of ability to perform any of the above basic work activities may or may not significantly
erode the unskilled sedentary occupational base. The individual's remaining capacities must be assessed and a judgment
made as to their effects on the unskilled occupational base considering the other vocational factors of age, education,

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and work experience. When an individual has been found to have a limited ability in one or more of these basic work
activities, it may be useful to consult a vocational resource.

Use of Vocational Resources
When the extent of erosion of the unskilled sedentary occupational base is not clear, the adjudicator may consult various
authoritative written resources, such as the DOT, the SCO, the Occupational Outlook Handbook, or County Business
Patterns.
In more complex cases, the adjudicator may use the resources of a vocational specialist or vocational expert. 8 The
vocational resource may be asked to provide any or all of the following: An analysis of the impact of the RFC upon
the full range of sedentary work, which the adjudicator may consider in determining the extent of the erosion of the
occupational base, examples of occupations the individual may be able to perform, and citations of the existence and
number of jobs in such occupations in the national economy.
*10 EFFECTIVE DATE: This Ruling is effective on the date of its publication in the Federal Register.

CROSS-REFERENCES: SSR 86-8 “Titles II and XVI: The Sequential Evaluation Process” (C.E. 1986, p. 78), SSR
83-10, “Titles II and XVI: Determining Capability to Do Other Work--The Medical-Vocational Rules of Appendix 2” (C.E.
1981-1985, p. 516), SSR 83-12, “Titles II and XVI: Capability to Do Other Work--The Medical-Vocational Rules as a
Framework for Evaluating Exertional Limitations Within a Range of Work or Between Ranges of Work” (C.E. 1981-1985,
p. 529), SSR 83-14, “Titles II and XVI: Capability to Do Other Work--The Medical-Vocational Rules as a Framework
for Evaluating a Combination of Exertional and Nonexertional Impairments” (C.E. 1981-1985, p. 535), SSR 85-15,
“Titles II and XVI: Capability to Do Other Work--The Medical- Vocational Rules as a Framework for Evaluating Solely
Nonexertional Impairments” (C.E. 1981-1985, p. 543), SSR 96- 8p, “Titles II and XVI: Assessing Residual Functional
Capacity in Initial Claims;” Program Operations Manual System, sections DI 24510.001, DI 24510.005, DI 24510.010, DI
24510.050, DI 24515.061, DI 25001.001, DI 25010.001, DI 25020.005, DI 25020.010, DI 25020.015, DI 25025.001 and DI
28005.015; and Hearings, Appeals, and Litigation Law Manual, sections I-2-548 and I-2-550.
1

2

3
4
5

For a detailed discussion of the difference between the RFC assessment, which is an administrative finding of fact, and the
opinion evidence called the “medical source statement” or “MSS,” see SSR 96-5p, “Titles II and XVI: Medical Source Opinions
on Issues Reserved to the Commissioner.”
RFC may be expressed in terms of an exertional category, such as “light,” if it becomes necessary to assess whether an
individual is able to perform past relevant work as it is generally performed in the national economy. However, without the
initial function-by-function accounting of the individual's capacities, it may not be possible to determine whether the individual
is able to perform past relevant work as it is generally performed in the national economy because particular occupations may
not require all of the exertional and nonexertional demands necessary to perform the full range of work at a given exertional
level. See SSR 96-8p, “Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims.”
However, “younger individuals” age 45-49 who are unable to communicate in English or who are illiterate in English and who
are limited to even a full range of sedentary work must be found disabled under rule 201.17 in Table No. 1.
An “occupation” refers to a grouping of numerous individual “jobs” with similar duties. Within occupations (e.g., “carpenter”)
there may be variations among jobs performed for different employers (e.g., “rough carpenter”).
The regulations specify that this is an approximation. The revised fourth edition of the Dictionary of Occupational Titles and its
companion volumes (the DOT, 1991) lists 137 separate occupations. However, the introduction to Volume I explains that the
fourth edition of the DOT (1977) “substantially modified or combined with related definitions” several thousand definitions
from the third edition. In 1992, we published a notice in the Federal Register explaining that an analysis of the revised fourth
edition of the DOT and available data for the then upcoming volume of the Selected Characteristics of Occupations Defined

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in the Revised Dictionary of Occupational Titles (SCO) showed “that the range of work of which the medical-vocational rules
take administrative notice continues to represent more occupations than would be required to represent significant numbers,”
and that “we have received no significant data or other evidence to indicate that * * * the unskilled occupational base * *
* has changed substantially.” (See 57 FR 43005, September 17, 1992.) In February 1996, contact with the North Carolina
Occupational Analysis Field Center, the organization that compiles the data the Department of Labor uses in the SCO,
confirmed that there are no precise updated data but that the regulatory estimate of approximately 200 sedentary unskilled
occupations is still valid, because some of the 137 occupations in the current edition of the DOT comprise more than one of
the separate occupations of which we take administrative notice.

6
7
8

See 20 CFR 404.1563(a) and 416.963(a) and SSR 83-10.
Bilateral manual dexterity is needed when sitting but is not generally necessary when performing the standing and walking
requirements of sedentary work.
At the hearings and appeals levels, vocational experts (VEs) are vocational professionals who provide impartial expert opinion
during the hearings and appeals process either by testifying or by providing written responses to interrogatories. A VE may
be used before, during, or after a hearing. Whenever a VE is used, the individual has the right to review and respond to the
VE evidence prior to the issuance of a decision. The VE's opinion is not binding on an adjudicator, but must be weighed along
with all other evidence.

Social Security Administration
Department of Health and Human Services
SSR 96-9P (S.S.A.), 1996 WL 374185
End of Document

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