Gribensk v. Colvin

Filing 18

DECISION & ORDER: That Plaintiffs # 14 Motion for judgment on the pleadings is GRANTED in part, and the Commissioners # 15 Motion for judgment on the pleadings is DENIED. The decision of the Commissioner is REVERSED and the # 1 Complaint filed by Rhonda Gribensk is REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for a determination consistent with this Decision and Order. Signed by Senior Judge Thomas J. McAvoy on 9/20/2016. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------RHONDA GRIBENSK,
Plaintiff,
v.

8:15-cv-395

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge

DECISION and ORDER
Plaintiff Rhonda Gribensk brought this suit under § 205(g) of the Social Security Act
(“Act”), as amended, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of
Social Security (“Commissioner”) denying her application for Supplemental Security Income
(“SSI”) benefits. Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") is
not supported by substantial evidence and is contrary to the applicable legal standards.
Pursuant to Northern District of New York General Order No. 8, the Court proceeds as if
both parties had accompanied their briefs with a motion for judgment on the pleadings.
I.

PROCEDURAL HISTORY
Plaintiff protectively filed an application for SSI benefits on May 24, 2011 (Tr. 244-51,

302). The application was denied (Tr. 143-44, 148-53). Plaintiff requested a hearing before
an Administrative Law Judge (ALJ) (Tr. 163-66). A hearing was adjourned on December
12, 2012 (Tr. 85-96) and held on July 8, 2013 (Tr. 97-128). On September 23, 2013, ALJ

1

Arthur Patane issued a decision finding that Plaintiff was not disabled (Tr. 42-59). Plaintiff
requested review by the Appeals Council (Tr. 40-41 ). The decision of the ALJ became the
final decision of the Commissioner when the Appeals Council denied Plaintiff’s
administrative appeal on February 5, 2015 (Tr. 1-7). This action followed.
II.

FACTS
The parties do not dispute the underlying facts of this case as set forth by Plaintiff in

her memorandum of law. Accordingly, the Court assumes familiarity with these facts and
will set forth only those facts material to the parties’ arguments.
III.

THE COMMISSIONER’S DECISION
Plaintiff protectively filed her SSI application on May 24, 2011 alleging disability since

January 15, 2011 due to chronic obstructive pulmonary disease (COPD), depression,
migraines, and abdominal pain (Tr. 302, 306). At step one of the sequential evaluation, the
ALJ found that Plaintiff had not engaged in substantial gainful activity since her application
date of May 1, 2011 (Tr. 47). At step two, the ALJ found that Plaintiff had severe
post-traumatic stress disorder (PTSD), depressive disorder, anxiety disorder, asthma,
COPD, and recurrent migraines (Tr. 47- 50). The ALJ found that Plaintiff’s alleged
gynecological conditions, somatizations, and back and left leg problems were not severe
impairments (Tr. 48-50).
At step three, the ALJ found that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled the Listing of Impairments, 20 C.F.R. Part
404, Subpart P, Appendix 1 (Tr. 50-52). The ALJ then found that Plaintiff retained the
residual functional capacity to perform a range of light work as defined in 20 C.F.R. §

2

416.967(b) in that she could remember, understand, and execute simple work tasks,
maintain attention and concentration for such work tasks, respond appropriately to changes
and stressors in concert with simple work tasks, and interact frequently with coworkers and
supervisors, but she could have no contact with the general public, and she could have no
concentrated exposure to respiratory irritants (Tr. 52-57).1
At step four, the ALJ found that Plaintiff had no past relevant work (Tr. 57). The ALJ
used medical-vocational Rule 202.17 as a framework to conclude that Plaintiff’s residual
functional capacity permitted her to perform a significant number of other jobs (Tr. 58-59).
Therefore, the ALJ found that Plaintiff was not disabled within the meaning of the Act (Tr.
34).
Plaintiff challenges these findings in various respects. The Commissioner argues
that the ALJ’s decision is supported by substantial evidence and legally correct and,
therefore, should be affirmed.
IV.

STANDARD OF REVIEW
The Court's review of the Commissioner's determination is limited to two inquiries.

See 42 U.S.C. § 405(g). First, the Court determines whether the Commissioner applied the
correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Balsamo v.
Chater, 142 F.3d 75, 79 (2d Cir. 1998); Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990);
Shane v. Chater, No. 96-CV-66, 1997 W L 426203, at *4 (N.D.N.Y July 16, 1997)(Pooler,
J.)(citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)). Second, the Court m ust

1

Light work involves lifting no more than twenty pounds at a time with frequent lifting and
carrying of objects weighing up to twenty pounds. 20 C.F.R. § 416.967(b ). Light work requires a
good deal of walking and standing, or sitting most of the day with some pushing and pulling of
arm or leg controls. 20 C.F.R. § 416.967(b).

3

determine whether the Commissioner's findings are supported by substantial evidence in
the administrative record. See Tejada, 167 F.3d at 773; Balsamo, 142 F.3d at 79; Cruz, 912
F.2d at 11; Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). A Commissioner's
finding will be deemed conclusive if supported by substantial evidence. See 42 U.S.C. §
405(g); see also Perez, 77 F.3d at 46; Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.
1984)("It is not the function of a reviewing court to determine de novo whether a Plaintiff is
disabled. The [Commissioner's] findings of fact, if supported by substantial evidence, are
binding.")(citations omitted). In the context of Social Security cases, substantial evidence
consists of "more than a mere scintilla" and is measured by "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, 28 L. Ed.2d 842 (1971)(q uoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126
(1938)). Where the record supports disparate findings and provides adequate support for
both the Plaintiff's and the Commissioner's positions, a reviewing court must accept the
ALJ's factual determinations. See Quinones v. Chater, 117 F.3d 29, 36 (2d Cir. 1997)(citing
Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)); Alston v. Sullivan, 904 F.2d 122,
126 (2d Cir. 1990). Although the reviewing court must give deference to the
Commissioner’s decision, a reviewing court must bear in mind that the Act is ultimately “‘a
remedial statute which must be ‘liberally applied;’ its intent is inclusion rather than
exclusion.’” Vargas v. Sullivan, 898 F.2d 293, 296 (2d Cir. 1990)(quoting Rivera v.
Schweiker, 717 F.2d 719, 723 (2d Cir. 1983)).

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V.

DISCUSSION
Plaintiff offers several grounds for challenging the opinion of the ALJ. For reasons

explained below, the Court will address some but not all of these grounds.
a. Whether Plaintiff’s mental impairments meet the requirement of §
12.04 and/or § 12.06 of the Listing of Impairments
Plaintiff argues that her mental impairments meet the requirements of §12.04
(Affective Disorders) and/or §12.06 (Anxiety Related Disorders) of the Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. Pl. Mem. at 25-27. The
Commissioner disagrees and asserts that the ALJ correctly evaluated Plaintiff's mental
condition under the Social Security regulations and found that the requirements of neither §
12.04 nor § 12.06 were met or equaled. Def. Mem. at 5-7 (citing Tr. 50-52).
The impairments contained in the Listing of Impairments “are impairments
acknowledged by the Secretary to be of sufficient severity to preclude gainful employment.
If a claimant's condition meets or equals the ‘listed’ impairments, he or she is conclusively
presumed to be disabled and entitled to benef its.” Dixon v. Shalala, 54 F.3d 1019, 1022 (2d
Cir.1995). Whether a claimant’s impairment meets or equals a listed impairment is decided
at the third step of the sequential evaluation. Id.
In addressing listed impairments, the applicable section of the Code of Federal
Regulations provides:
Each listing, except 12.05 and 12.09, consists of a statement describing the
disorder(s) addressed by the listing, paragraph A criteria (a set of medical
findings), and paragraph B criteria (a set of impairment-related functional
limitations). There are additional functional criteria (paragraph C criteria) in
12.02, 12.03, 12.04, and 12.06, discussed herein. W e will assess the
paragraph B criteria before we apply the paragraph C criteria. We will assess
the paragraph C criteria only if we find that the paragraph B criteria are not
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satisfied. We will find that you have a listed impairment if the diagnostic
description in the introductory paragraph and the criteria of both paragraphs A
and B (or A and C, when appropriate) of the listed impairment are satisfied.
20 C.F.R. § Pt. 404, Subpt. P, App. 1
As indicated above, the ALJ found that Plaintiff had severe post-traumatic stress
disorder (PTSD), depressive disorder, anxiety disorder, asthma, COPD, and recurrent
migraines (Tr. 47- 50). The Commissioner makes no argument that Plaintiff fails to satisfy
the paragraph A criteria for §12.04 (Affective Disorders) and §12.06 (Anxiety Related
Disorders).
To satisfy the paragraph B criteria for §12.04 and/or §12.06, Plaintiff must show that
her mental impairment resulted in at least two of the following: 1. Marked restriction of
activities of daily living; 2. Marked difficulties in maintaining social functioning; 3. Marked
difficulties in maintaining concentration, persistence or pace; or 4. Repeated episodes of
decompensation, each of extended duration. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.04(B), § 12.06(B). A “marked” limitation means “more than moderate, but less than
extreme;” one that “interferes seriously with [a claimant's] ability to function independently,
appropriately, effectively, and on a sustained basis.” Gagnon v. Comm'r of Soc. Sec., 2016
WL 482068, at *4 (N.D.N.Y. Feb. 5, 2016)(quoting 20 C.F.R. pt. 404, subpt. P, app. 1, §
12.00(c)). “Repeated” episodes of decompensation, means “three episodes within [one]
year, or an average of once every [four] months, each lasting for at least [two] weeks” or
“more frequent episodes of shorter duration or less frequent episodes of longer duration”
which are determined, in an exercise of judgment, to be “of equal severity.” Id. (quoting 20
C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C)(4)).
Based on Plaintiff’s hearing testimony and written statements, and relying primarily
6

on the opinion of state agency non-examining psychiatric consultant H. Ferrin, Ph.D., the
ALJ determined that Plaintiff had mild restriction in activities of daily living; moderate
difficulties in social functioning; moderate difficulties with regard to concentration,
persistence or pace; and had experienced no episodes of decompensation which had been
of extended duration (Tr. 50–56). The ALJ also found no evidence to establish the presence
of “Paragraph C” criteria (id.).
Plaintiff points out, however, that after the hearing she submitted to the Appeals
Council (1) a November 21, 2013 Medical Source Statement from her treating psychiatrist,
Dr. Joshua Frank, and (2) a March 21, 2014 Medical Examination for Employability
Assessment completed by Dr. Frank for the Department of Social Services. In the Medical
Source Statement, Dr. Frank assessed Plaintiff with marked impairments in understanding
and remembering simple instructions and carrying out simple instructions; extreme
impairment in the ability to make judgments on simple work related instructions,
understanding and remembering complex instructions, carrying out complex decisions, and
making judgments on complex decisions; and extreme restrictions in interacting
appropriately with the public, interacting appropriately with supervisors, interacting
appropriately with co-workers, and responding appropriately to usual work situations and to
changes in a routine work setting. (Tr. 1274). Dr. Frank assessed: “Labile mood, increased
anxiety when dealing with people, avoidance due to PTSD.” Id. He concluded: “Very poor
tolerance for any stress which makes it impossible for her to work in a regular work
schedule.” Id.
On Plaintiff’s administrative appeal, the Appeals Council said that it considered the
“additional evidence” which Plaintiff submitted, Tr. 1, but addressed only Dr. Frank’s March
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21, 2014 Department of Social Services’ Medical Examination for Employability
Assessment. Id. 2. 2 In this regard, the Appeals Council wrote:
We . . . looked at Medical records for Joshua Frank of Medical Examination
for Employability Assessment, Disability Screening and Alcoholism/Drug
Addiction Determination dated March 21, 2014. The Administrative Law Judge
decided your case through September 23, 2013. This new information is
about a later time. Therefore, it does not affect the decision about whether
you were disabled beginning on or before September 23, 2013.
Id.
The Commissioner argues that Dr. Frank's Medical Source Statement was dated
two months after the ALJ's September 23, 2013 decision, and that Dr. Frank said that the
date on which these limitations were first present was unknown (Tr. 1274). Thus, the
Commissioner asserts, “there was no evidence that the limitations that Dr. Frank assessed
in November 2013 had been present on or bef ore the ALJ's September 23, 2013 decision.”
Def. Mem. at 7. Plaintiff argues that although Dr. Frank stated that he did not know when
Plaintiff’s symptoms first started, his opinions raise “the strong implication that they existed
when [Dr. Frank] started treating [Plaintiff] in March 2013.” Pl. Mem. at 27. (citing Tr. at
1274).
A claimant is expressly authorized to submit new and material evidence to the
Appeals Council. Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996)(citing 20 C.F.R. §§
404.970(b), 416.1470(b)). If this new evidence relates to the time period before the ALJ’s
decision, the Appeals Council is required to evaluate the entire record, including the new
evidence, to determine if the ALJ’s action, findings, or conclusions are contrary to the
weight of the evidence currently of record. Id.; see Rivera v. Sullivan, 923 F.2d. 964, 967

2
The Appeals Council did include Dr. Frank’s November 21, 2013 Medical Source Statement in the
record, Tr. 6, but did not reference it in its decision. Id. at 2.

8

(2d Cir. 1991) (recognizing that post hearing medical examinations may be admitted under
20 C.F.R. § 404.970(b) when these examinations assist in understanding a claimant’s
pre-hearing disability); Woodford v. Apfel, 93 F. Supp.2d 521, 526-527 (S.D.N.Y.
2000)(When a claimant presents evidence that meets § 404.970(b)’s standards, the
Appeals Council will admit the evidence into the record, and review the entire record to
determine whether the ALJ’s decision is contrary to the weight of the evidence.).
Although Dr. Frank’s opinion in the November 21, 2013 Medical Source Statement is
ambiguous as to the date that Plaintiff’s symptoms started, based on the evidence at the
hearing indicating that Plaintiff had been consistently treated for her depression since 2008,
and that, in April 2013, Dr. Frank gave her a GAF score of 45, it is possible that the
symptoms started before the ALJ’s September 23, 2013 determination. Assuming this to be
the case, Dr. Frank’s opinions rendered in the November 21, 2013 Medical Source
Statement are material to the determination of whether Plaintiff satisfies the paragraph B
criteria for §12.04 and/or §12.06. See Clark v. Commissioner of Soc. Security, 143 F.3d
115, 118 n. 1 (2d Cir. 1998)(noting that material evidence is that which is relevant to the
time period for which benefits were denied, even if made after that time); Lisa v. Sec’y HHS,
940 F.2d 40, 43 (2d Cir. 1991)(Evidence is "material" if there is "a reasonable possibility that
the new evidence would have influenced the Secretary to decide claimant's application
differently."). Moreover, the evidence from Dr. Frank in his November 21, 2013 Medical
Source Statement, when given the appropriate weight under the treating physician rule, see

9

Ross v. Colvin, 2014 WL 5410327, at *12 (N.D.N.Y. Oct. 21, 2014), 3 and when read
together with the totality of the evidence presented at the hearing,4 had the potential to
change the ALJ’s determination as to whether Plaintiff satisfies the paragraph B criteria for
§ 12.04 or §12.06 of the Listing of Impairments.
Because the Appeals Council is obligated to fully review the record, including new
evidence submitted to it, and to develop the record to fill any gaps that might exist, see
Sims v. Apfel, 530 U.S. 103, 111 (2000); see also Anderson v . Astrue, 2009 U.S.Dist.
LEXIS 77602, * 43 (E.D.N.Y. 2009)(“The Appeals Council, like the ALJ, has an affirmative
duty to develop the record”); Valerio v. Commissioner of Social Security, 2009 U.S.Dist.
LEXIS 68634, * 46 (E.D.N.Y. 2009)(“Given the ALJ's duty to develop the record sua sponte,

3

(“The medical opinions of a claimant's treating physician are generally given more weight than those
of other medical professionals. ‘If ... a treating source's opinion ... is well-supported by medically acceptable
clinical and laboratory techniques and is not inconsistent with other substantial evidence ... [it] will [be] give[n]
controlling weight.’ 20 C.F.R. § 404.1527(c)(2). Medically acceptable techniques include consideration of a
patient's report of complaints and the patient's history as essential diagnostic tools. Green–Younger v.
Barnhart, 335 F.3d 99, 107 (2d Cir. 2003). Generally, the longer a treating physician has treated the claimant
and the more times the claimant has been seen by the treating source, the more weight the Commissioner
will give to the physician's medical opinions. Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) (citing 20
C.F.R. § 404.1527(c)(2)(i)).”)
4

This included evidence that examining psychiatric consultant Richard Liotta, Ph.D., concluded that
Plaintiff was significantly limited in social functioning; had difficulty sustaining focus, concentration, and ability
to attend; had problems with her memory; had a low stress tolerance; and was at risk of decompensation.
Further, Dr. Liotta performed objective neuropsychological tests and determined that Plaintiff had marked
impairments in concentration and persistence Tr. 894. Although the ALJ "afforded little consideration to the
diagnoses" of Dr. Liotta because they "were made after only a single consultive evaluation, the diagnoses
almost entirely rely on subjective reports not borne out in mental status evaluation, and the subjective reports
on which the diagnoses were made were not reflected in mental health treatment notes several months
thereafter," Tr. 55, this weight determination might change if Dr. Frank’s post-hearing opinions are deemed to
involve the relevant time period. See 20 C.F.R. § 416.927(c)(4) (noting that the more consistent an opinion is
with the record as a whole, the more weight it will be given)(emphasis added).
Plaintiff also points out that she has been consistently treated for her depression since 2008, and that
she submitted post-hearing evidence indicating that in April 2013, Dr. Frank gave her a GAF score of 45, (Tr.
12), thus indicating “‘serious symptoms,’ including suicidal ideation, severe obsessional rituals, or a serious
impairment in social, occupational, or school functioning, such as ‘no friends’ or inability to keep a job.”
Truman v. Comm'r of Soc. Sec., 2015 WL 5512225, at *13 (N.D.N.Y. Sept. 17, 2015) (citing Am. Psychiatric
Ass'n, Diagnostic and Statistical Manual of Mental Disorders (“DSM–IV”), at 32 (4th ed. 2000)).

10

the Appeals Council may not reject the treating physician's conclusions based solely on a
lack of clear medical evidence or inconsistency without first attempting to fill the gaps in the
administrative record.”); Boyd v. Apfel, 1999 U.S. Dist. LEXIS 18510, * 12 (E.D.N.Y.
1999)(“Where the record before the Appeals Council, including new evidence, is ambiguous
or incomplete, the Appeals Council has an affirmative obligation to develop it further.” ), the
case must be remanded for further development of the record in this regard. See Sears v.
Colvin, 2013 U.S. Dist. LEXIS 175513, *13- *15 (N.D.N.Y. 2013)(“If the Appeals Council
fails to consider new, material evidence, the proper course for the reviewing court is to
remand the case for reconsideration in light of the new evidence.")(interior quotation marks
and citation omitted). In remanding this case, the Court offers no opinion on whether
Plaintiff satisfies the criterion for § 12.04 or §12.06 of the Listing of Impairments,5 or the
manner in which the Commissioner might expand the record. 6
b. Whether Plaintiff is a disabled by a Somatoform Disorder
Plaintiff also argues that her mental impairment meets § 12.07 of the Listing of
Impairments (Somatoform Disorders). Pl. Mem. at 28-31. The Commissioner disagrees.

5

Because it is possible that Commissioner could still conclude that, based upon Plaintiff’s testimony
and written statements, she does not satisfy the paragraph B criteria, the Court rejects Plaintiff’s argument
that “[t]his Court should determine that [Plaintiff] is disabled pursuant by her depression and anxiety and
remand for payments of benefits.” Pl. Mem. pp 27-28.
6

The Appeals Counsel could have recontacted Dr. Frank to obtain more information as to when he
believed the symptoms first started. However, the Court recognizes that such recontacting was not required.
In 2012, prior to the adjudication of Plaintiff’s claim, the regulations were amended to remove the requirement
that an Commissioner recontact the treating physician. See How We Collect and Consider Evidence of
Disability, 77 Fed. Reg. 10,651, 10,656 (Feb. 23, 2012) (codified at 20 C.F.R. §§ 404.1512, 404.1527,
404.912, and 416.927). Moreover, even under the previous regulations, recontacting was required only
where the Commissioner did not have adequate evidence to determine whether the claimant was disabled.
20 C.F.R. § 404.1512(e) (2010) (amended March 26, 2012) (“When the evidence we receive from your
treating physician or psychologist or other medical source is inadequate for us to determine whether you are
disabled, we will need additional information to reach a determination or a decision.”).

11

Somatoform disorders are defined as “[p]hysical symptoms for which there are no
demonstrable organic findings or known physiological mechanisms.” 20 C.F.R. pt. 404,
subpt. P, app. 1 § 12.07. To establish disability under §12.07 pertaining to somatoform
disorders, a claimant must meet or equal the criteria of both §§ 12.07(A) and (B). W inbush
v. Comm'r of Soc. Sec., 2013 WL 4678377, at *2 (N.D.N.Y. Aug. 30, 2013)(citing 20 C.F.R.
pt. 404, subpt. P, app. 1 § 12.07). “T he criteria in paragraph A substantiate medically the
presence of a particular mental disorder. Specific symptoms, signs, and laboratory findings
in the paragraph A criteria of any of the listings in this section cannot be considered in
isolation from the description of the mental disorder contained at the beginning of each
listing category. Impairments should be analyzed or reviewed under the mental
category(ies) indicated by the medical findings.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
“The Paragraph B criteria are identical for anxiety disorder and somatoform disorder, and
require a claimant to show at least two of the following four functional limitations: (1) marked
restriction of activities of daily living; (2) marked difficulties in maintaining social functioning;
(3) marked difficulties in maintaining concentration, persistence, or pace; and (4) repeated
episodes of decompensation, each of extended duration.” Rock v. Colvin, 628 F. App'x 1, 3
n. 1 (2d Cir. 2015)(citing 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.06(B), 12.07(B)).
Plaintiff argues that she meets the “A criteria for Somatoform Disorders – She has
unrealistic interpretation of physical signs or sensations associated with the preoccupation
or belief that one has a serious disease or injury. She has consistently reported her diverse
perceived physical problems.” Pl. Mem. pp. 30-31. She asserts that “none of the treating or
consultative sources doubted that [she] experienced pain. She was constantly reporting
various physical ailments. She received numerous radiological and other objective tests
12

regarding her complaints. Many of the tests were normal. Despite this, no provider has ever
doubted her sincerity. Her treatment is consistent with her belief in her purported physical
ailments.” Id. p. 30. She further maintains that the “same ‘B’ factors exist under Listing
12.07 as for Listings 12.04 (depression) and 12.06 (anxiety).” Id. p. 31.
The Commissioner argues that the ALJ properly found that Plaintiff did not have a
severe somatoform disorder because, if it existed, it did not significantly limit Plaintiff’s
ability to perform basic work activities. Further, the Commissioner asserts that while school
psychologist Nicole Matthews reported that she was treating Plaintiff’s family and stated that
Plaintiff displayed somatizations, she did not provide any treatment records or mental status
findings with respect to Plaintiff’s mental condition. The Commissioner further notes that, in
all other respects, the medical record contained no formal diagnosis or clinical finding of a
somatoform disorder. Finally, the Commissioner asserts that Plaintiff did not meet the
paragraph B criteria for §12.07 for the same reasons that she did not meet the paragraph B
criteria for §12.04 or §12.06.
Addressing the possibility of a somataform disorder, the ALJ wrote:
In July 2013, school psychologist Nicole Matthews asserted her belief that
some of the claimant's physical complaints, such as headaches,
sleeplessness, and aches and pains, could be the result of somatizations
secondary to mental impairment. However, Dr. Matthews did not provide any
justification for this assertion, the claimant has no diagnosis for somatoform
disorder, and the claimant curiously requested that Dr. Matthews not release
her case notes as part of the claim for disability. As such, there is no evidence
of Dr. Matthew's treatment and no evidentiary support for Dr. Matthew's
assertion. These factors undermine an assertion of somatoform disorder. I
also note that the claimant's refusal to authorize release of treatment notes
weakens her argument of disabling mental impairment, as she has an
otherwise weak treatment history in that regard, discussed below.
Tr. 48.
13

A review of Ms. Matthews’7 letter explains that she has been working with Plaintiff
and Plaintiff’s two children one time weekly, initially having been assigned because
Plaintiff’s husband’s incarceration caused Plaintiff difficulty in raising two children with
disabilities. Tr. 1176. Ms. Matthews’ letter indicates that Plaintiff reported very traumatic
and unstable upbringing with multiple instances of physical, emotional, and sexual abuse,
past abusive relationships, suicide attempts, and recurrent depression. Id. Ms. Matthews
further indicates that Plaintiff “has a long history of mental health diagnoses including
depression, PTSD, and anxiety. These paired with raising two disabled children has proven
repeated [sic] to overwhelm [Plaintiff].” Id. Ms. Matthews opines:
Rhonda reports frequent bouts of depression and anxiety in dealing with
typical life situations, such as getting groceries and participating in community
activities with her children. She does possess a NYS drivers license, however
rarely drives. Clinical impressions indicates that she displays many
somatizations, in the form of headaches, sleeplessness, aches and pains.
Rhonda reports that although she gets medical attention for these issues, the
doctors cannot find any medical reason for her symptoms. It is likely that a
great deal of her physical complaints can be explained by her psychological
issues being unresolved.
Id.
Ms. Matthews concludes by indicating that “[d]ue to the nature of other issues being
discussed during counseling sessions the client has requested the case notes not be
released. Additionally, it is a breach of my confidentiality agreement to release any notes
against client request. ” Id.
Due to the sensitive and personal background information apparently provided by
Plaintiff to Ms. Matthews, it is understandable that Plaintiff would not want the complete

7
Ms. Matthews indicates in her letter that she has a Masters of Art in Psychology and a Certificate of
Advance Study in School Psychology. There is no indication that she has a doctorate degree.

14

record of her counseling sessions with Ms. Matthews to be disclosed for purposes of
determining whether she was disabled under the Social Security Act. However, Ms.
Matthews’ letter raises the possibility that Plaintiff’s long history of seeking medical attention
for a sundry of pains and migraine headaches without medical diagnoses is attributed to a
somatoform disorder. Indeed, when Plaintiff’s medical history is combined with Dr. Frank’s
opinions expressed in his post-hearing medical source statement (which the Court has
already determined the Commissioner must consider in the context of the evidence
presented in this matter) and Ms. Matthews’ opinion that Plaintiff “displays many
somatizations, in the form of headaches, sleeplessness, aches and pains,” the potential is
created that (1) Plaintiff is suffering from a severe mental impairment that significantly limits
her ability to perform basic work functions, see 20 CFR §416.921(a), and (2) satisfies the
paragraph B criteria for § 12.07 of the Listing of Impairments (Somatoform Disorders). This
evidence is sufficient to trigger the Commissioner’s obligation to investigate further and, if
necessary, to order a consultive examination addressing this issue. See Goodwin v. Colvin,
2014 WL 2176426, at *5 (N.D.N.Y. May 22, 2014)(“[B]ased on Goodwin's treatment history,
diagnoses, and the opinions of his treating and examining sources, the ALJ should have
more thoroughly considered whether there is a psychological source of Goodwin's pain.
Thus, on remand, the ALJ should obtain expert opinion on this issue.”)(citing Carradine v.
Barnhart, 360 F.3d 751, 756 (7th Cir. 2004)(holding that remand for further administrative
proceedings was appropriate, “utilizing whatever body of expert opinion, scholarly or
otherwise, may be available to [the ALJ] or within the institutional memory of the Social
Security Administration,” where the ALJ improperly concluded that a somatoform disorder
did not result in real pain)).
15

Accordingly, the Court remands on this basis and directs the Commissioner to
amplify the record to determine whether or not Plaintiff suffers from a somatoform pain
disorder. See Sims v. Barnhart, 442 F.3d 536 (7th Cir. 2006)(court remands for
amplification of record regarding “Somatoform Pain Disorder.”); Prentice v. Apfel, 11 F.
Supp. 2d 420, 427 (S.D.N.Y. 1998)(“[I]nsofar as Plaintiff moves the Court to remand for
amplification of the record on the limited issue of whether Plaintiff is disabled by depression
or Somatoform Pain Disorder, Plaintiff's motion for judgment on the pleadings is granted.”).
If it is determined that Plaintiff suffers from a somatoform pain disorder, the Commissioner
should first determine whether the condition meets or equals a § 12.07 Listing of
Impairments, and if such a condition exists but is not a Listing level impairment, articulate
the impact the condition has on the Commissioner’s assessment of Plaintiff’s credibility.
Nelson v. Comm'r of Soc. Sec., 2015 WL 3936939, at *5 (N.D.N.Y. June 26, 2015)(“The
ALJ's failure to explicitly consider, or even mention, Plaintiff's somatoform disorder in his
credibility determination warrants remand.”); Goodwin, 2014 WL 2176426, at *5; Tricic v.
Astrue, 2010 WL 3338697, at *8 (N.D.N.Y. Aug. 24, 2010)(“Although a somatoform disorder
does not insulate a claimant from an ALJ's credibility finding, it should be considered.
Accordingly, on remand, the ALJ should consider Plaintiff's somatoform disorder in
connection with any credibility determination.”)(internal quotation marks, brackets, and
citations omitted); Frank v. Chater, 924 F. Supp. 416, 429 (E.D.N.Y.1996) (remanding
action for amplification of the record because “[n]otably absent was any substantial inquiry
into the nature of [Plaintiff's] impairments or their effects on his ability to work.”).

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c. Whether the ALJ erred by failing to re-open Plaintiff’s previous SSI
application
At the hearing, Plaintiff requested that the her previous application for Supplemental
Security Income, dated September 18, 2009, be re-opened. The record reflects that
Plaintiff was paid benefits into April 2010. However, in an initial determination, purportedly
dated April 20, 2010, Plaintiff was found to not be disabled. Thereafter, the Social Security
Administration sought recovery of benefits paid prior to the final decision, but in a letter
dated February 7, 2011, Plaintiff was informed that the Administration would no longer seek
repayment of the funds although the initial determination stood. Tr. 238
The ALJ found that (1) because Plaintiff’s initial determination of non-disability was
dated April 20, 2010, (2) she did not apply for a hearing on the initial claim, and (3) she did
not submit a new application until May 15, 2011 (more than 12 months after the initial
determination), she did not qualify to reopen the previous matter under 20 C.F.R.
§416.1488 (a) (“A determination, revised determination, decision, or revised decision may
be reopened—(a) Within 12 months of the date of the notice of the initial determination, for
any reason.”). The ALJ also found that there was not good cause to reopen the application
under 20 C.F.R. § 416.1488(b), 8 holding that that Plaintiff “has submitted no new evidence
material to the period in the initial application, neither she nor her representativ e has
asserted any difficulty in filing a timely request for hearing in the initial case, and, pursuant
to SSR 91-5p, I find no evidence of mental incapacity resulting in good cause for missing
8

Section 416.1488(b) provides that “[a] determination, revised determination, decision, or revised
decision may be reopened— (b) Within two years of the date of the notice of the initial determination if we find
good cause, as defined in § 416.1489, to reopen the case.” Section 416.1489 provides in pertinent part: “(a)
We will find that there is good cause to reopen a determination or decision if—(1) New and material evidence
is furnished, or ... (3) The evidence that was considered in making the determination or decision clearly
shows on its face that an error was made.” 20 C.F.R. § 416.1489(a)(1), (3).

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the deadline to request review.” Tr. 45. Thus, the ALJ denied the request to reopen the
prior application. Id.
Plaintiff argues:
[A]fter first being approved, Ms. Gribensk received notice that her first claim
for SSI was being denied on August 13, 2010 (R: 233). She reapplied within
the one year period on May 24, 2011(R: 45). In any event, both the original
evidence and the new and material evidence shows that she was disabled as
of the date of her first application (on or about September 18, 2009)(R: 146).
Pl. Mem., at 50.
The record reflects that on August 13, 2010, the Social Security Administration sent
Plaintiff a notice indicating that she was paid “$4182.00 too much Supplemental Security
Income money. The overpayment happened 10/2009-05/2010. You were paid for disability
benefits prior the a [sic] final decision on your case. Therefore you were not due those
benefits.” Tr. 233. While the record also reflects that the Social Security Administration,
through a Request for Corrective Action dated April 10, 2010, decided to issue an initial
determination denying Plaintiff SSI benefits, Tr. 301, the Request for Corrective Action is
forward looking and does not appear to constitute the actual decision. Rather, this
document states on page 2: “REQUEST FOR CORRECTIVE ACTION: Incorporate the
findings of the RMC and RMA. Modify the final RFC as indicated. Prepare a new SSA-831
and prepare an applicable denial notice. W hen finished, return jurisdiction of this claim to
the OQP in Kansas City, MO. Thank you.” Id. The Commissioner has not indicated where
in the record the actual denial exists, or the date on which it was sent to Plaintiff. Without
this information, the Court cannot determine whether Plaintiff’s application to reopen her
prior determination was made within one year of the date of the denial as required by 20
C.F.R. §416.1488 (a). Likewise, Plaintiff’s broad conclusory allegation that “the original
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evidence and the new and material evidence shows that she was disabled as of the date of
her first application (on or about September 18, 2009),” without more, is insufficient to
satisfy the good cause requirement of 20 C.F.R. §416.1488(b) and trigger a two year period
in which to reopen a matter. Accordingly, both parties’ Rule 12(c) motions on this ground
are denied, and the Court commits this issue to the Commissioner for further fact finding on
remand.
d. Remaining issues
The remaining issues raised by Plaintiff may be affected, or rendered moot, by the
Commissioner’s determinations on the first two issues discussed above. The Court finds it
would be a waste of judicial resources to issue rulings on these matters at this time.
Accordingly, both parties’ Rule 12(c) motions on Plaintiff’s remaining issues are denied with
leave to renew before the Commissioner.
VI. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on the pleadings is
GRANTED in part, and the Commissioner’s motion for judgment on the pleadings is
DENIED. The decision of the Commissioner is REVERSED and this case is REMANDED,
pursuant to sentence four of 42 U.S.C. § 405(g), for a determination consistent with this
Decision and Order.
IT IS SO ORDERED.
Dated:September 20, 2016

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