Washington v. Astrue

Filing 18

OPINION AND ORDER. For the reasons discussed above, the Commissioner's motion for judgment on the pleadings (Docket #12) is denied, and Washington's motion for judgment on the pleadings (Docket #6) is granted. The case is remanded for furt her proceedings consistent with this Opinion and Order. The Clerk is requested to enter judgment. re: 12 CROSS MOTION for Judgment on the Pleadings filed by Michael J. Astrue, 6 MOTION for Judgment on the Pleadings filed by Dorene Washington. (Signed by Magistrate Judge Gabriel W. Gorenstein on 3/31/2015) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
DORENE WASHINGTON,
:
:
Plaintiff,

OPINION AND ORDER
:

-v.-

12 Civ. 9448 (GWG)
:

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1

:
:

Defendant.
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GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Dorene Washington brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her claim for Social
Security Disability benefits under the Social Security Act. Both Washington and the Acting
Commissioner of Social Security (the “Commissioner”) have moved for judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons stated below, Washington’s motion
is granted, the Commissioner’s motion is denied, and the case is remanded for further
proceedings.
I.

BACKGROUND
A.

Washington’s Claim for Benefits and Procedural History

Washington applied for Social Security Disability benefits on April 5, 2010. See SSA
Administrative Record, filed June 4, 2013 (Docket # 5) (“R.”), at 110-17. She claimed that her

1

The original caption of this case named Michael J. Astrue as the defendant. Since that
time, Carolyn W. Colvin became the acting Commissioner of Social Security. Carolyn W.
Colvin is therefore automatically substituted as the defendant in this suit. See Fed. R. Civ. P.
25(d); 42 U.S.C. § 405(g). The Clerk is requested to so amend the caption.

ability to work was limited by “Sarcoidosis, Bi-Polar, Manic Depression, left knee pain,
Sialoadenitis, Hypercholsesterolemia [sic], [and] High blood pressure.” R. 138. She alleged that
this disability began on April 30, 2009, when she was 53 years old. R. 110. Washington has a
high school education. R. 41. She worked as a child care provider for several years, until 2008
or 2009. Id.
On May 27, 2010, the Social Security Administration denied Washington’s application
for Social Security Disability benefits. R. 66-69. Washington then requested a hearing before
an Administrative Law Judge (“ALJ”), R. 70-71, which was held on November 8, 2011, R. 3664. On November 25, 2011, the ALJ issued a decision finding that Washington was not
disabled. R. 20-32. The Appeals Council denied Washington’s request for review on November
13, 2012, R. 1-7, making the ALJ’s decision the final decision of the Commissioner. On
December 28, 2012, Washington filed this suit under 42 U.S.C. § 405(g). See Complaint, filed
Dec. 28, 2012 (Docket # 1). Both parties subsequently filed motions for judgment on the
pleadings.2 The case was referred to the undersigned on January 26, 2015 (Docket # 15). On
March 10, 2015, the parties consented to disposition of this case by a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c) (Docket # 17).
B.

The Administrative Record

Washington and the Commissioner have each provided a summary of the relevant
medical evidence contained in the administrative record. See Pl. Mem. at 1-10; Comm’r Mem.

2

See Motion for Judgment on the Pleadings, filed July 26, 2013 (Docket # 6);
Memorandum of Law in Support of Plaintiff’s Motion for Judgment on the Pleadings, filed July
26, 2013 (Docket # 7) (“Pl. Mem.”); Notice of Motion, filed Dec. 12, 2013 (Docket # 12);
Memorandum of Law in Support of the Commissioner’s Cross-Motion for Judgment on the
Pleadings and in Opposition to Plaintiff’s Motion for Judgment on the Pleadings, filed Dec. 12,
2013 (Docket # 13) (“Comm’r Mem.”).
2

at 4-14. The Court adopts the parties’ summaries, which do not conflict in any material way, as
accurate and complete for purposes of the issues raised in this suit. We discuss the portions of
the record pertinent to the adjudication of this case in section III below.
C.

The Hearing Before the ALJ

A hearing before ALJ Kenneth G. Levin was held on November 8, 2011. R. 36-64.
Washington appeared in person and was represented by an attorney. R. 38. Washington testified
that she traveled to the hearing by train and that she usually takes a train or bus when she travels,
R. 40, but that she usually does not travel alone “[b]ecause of [her] knee, and because [she]
get[s] paranoid,” R. 51. The ALJ heard testimony from four individuals: Washington, medical
expert Dr. Charles Platz,3 psychological expert Dr. Brady Dalton, and vocational expert Miriam
Green.4 R. 23, 37.
Washington testified first, responding to questions from the ALJ and then her attorney.
She indicated that she was 56 years old, five feet two inches tall, and weighed 190 pounds,
though she stated that this was not close to her usual weight because she used to weigh 233
pounds but was on a diet. R. 39. Washington stated that she lived with her 17-year-old
daughter. R. 39-40. She stated that she had a twelfth-grade education and that the last time she
worked was in 2008 or 2009. R. 41. At that time, she was working as a child care provider at a
nursery at Trinity Christian Academy. Id. Her hours at that job were from 6:30 a.m. to 4:30
p.m. Id. Her duties consisted of caring for children between the ages of six weeks and 12

3

The doctor is referred to as “Platz” in the hearing transcript, but “Plotz” in the ALJ’s
decision and in the parties’ memoranda of law.
4

Ms. Green is referred to as “Green” in the hearing transcript, but “Greene” in the ALJ’s
decision and the Commissioner’s memorandum of law.
3

months, including changing diapers, playing with the infants, and feeding and clothing them. R.
42. Prior to this job, she had worked at a similar job in Florida for some time, see id., and prior
to that, from approximately 2003 until 2006, she provided child care from her home to six
children of various ages, see R. 42-43.
Asked about her current symptoms that she believed would interfere with her ability to
work, Washington testified that she experienced mood swings, depression, and crying, and that
these symptoms had been “quite bad” for approximately three-and-a-half or four years and
caused her to sometimes be “afraid to even come outside of [her] apartment.” R. 43. However,
she stated that she was taking Lithium, which helped her but did not completely eliminate her
symptoms. R. 43, 52. She testified that she had other, non-psychiatric symptoms, including
sarcoidosis, which caused her to feel pressure on her chest so she “can’t walk or . . . breathe.” R.
44. She was not taking any medication for the sarcoidosis. See R. 44-45. She also testified that
her “bones bother [her] a lot,” particularly her left knee. R. 45. She had previously gone to a
specialist, who drained the fluid from that knee. Id. When the ALJ recited a list of medications,
including Lithium, Mirtazapine, setterzine, Zolpidem, Advil, aspirin, hypertension medication,
and multivitamins, Washington indicated that she took all or most of them. See R. 44-45.
Washington testified that she could now walk “two blocks without stopping,” whereas
before she “could only walk not even a whole block.” R. 46. After two blocks, however, her
chest would “bother[]” her and her knee would “act[] up.” Id. She could stand for “[a]bout a[n]
hour and a half to two hours,” and there was no limit to her ability to sit. Id. She could lift her
pocketbook, but not groceries or heavy bags. Id. She was able to do some household chores
with the help of her daughter and son, including sitting on the bed to fold laundry and putting it
away after someone else took the clothes out of the washing machine for her. R. 47.
4

Washington stated that she ordinarily spent her days “[l]ying in bed, sometime[s] reading the
Bible,” watching the news and gospel stations on television, and going to doctor’s appointments.
R. 47, 52-53. Additionally, she attended church two or three times per month and had gone to
Bible class for two hours each Monday until a month prior to the hearing, when she stopped
attending because she “couldn’t really stay up” for the class. R. 48. Until four months before
the hearing, Washington volunteered occasionally at her daughter’s dance school, helping the
dancers with their costumes and cleaning up after them. R. 49-50. She stated that she tried to go
to the gym “at least twice a week” — where she would “sit down on the bike” and “do the bike”
— for 35 to 40 minutes “because it helps [her] knee.” R. 50, 52. Washington socialized with a
neighbor who came to check in on her, and she spoke with her siblings on the telephone. R. 48.
Additionally, she had hosted a family function for Christmas that year and had cooked
Thanksgiving dinner with her family. R. 50-51.
Next, Dr. Platz, the medical expert, testified. Responding to questions from the ALJ, he
stated that he had listened to Washington’s testimony and reviewed her records. R. 53. Dr. Platz
stated that Washington’s medically determinable physical impairments consisted of “a history of
Sarcoid for over 20 years, which has not given her any significant difficulty;” “a history of pain
in the left knee for over 10 years,” though an x-ray of the knee showed that it was within normal
limits; “mild hypertension” that was “well-controlled;” obesity; a prior operation on one or both
feet for hammer toe and bunionectomy, “from which she has recovered;” and a “history of recent
cocaine, marijuana, and alcohol use.” R. 53-54. Upon questioning from Washington’s attorney,
Dr. Platz clarified that the most recent drug use was in either April or May 2010, but he agreed
with the ALJ that Washington’s drug use was “not an issue” in the case. R. 55. When the ALJ
asked if Washington had a medically determinable impairment that would reasonably be
5

expected to limit her functioning for a period of 12 continuous months, Dr. Platz stated that the
“[s]hort answer is no.” R. 54. Washington’s attorney asked Dr. Platz about erythema nodosum,
which Dr. Platz described as “a skin condition associated sometimes with Sarcoid,” which “in of
itself is of no great significance” and causes “practically no[]” symptoms. R. 55-56. In response
to the attorney’s questions, Dr. Platz confirmed that the condition may be associated with fever,
but he emphasized that it “can be associated with almost anything” and that “Sarcoidosis is a
many, many faced disease.” R. 56.
Dr. Dalton, the psychological expert, testified next. He stated he had reviewed
Washington’s records and listened to the testimony presented during the hearing. R. 57. In
response to the ALJ’s questions, Dr. Dalton testified that Washington’s medically determinable
mental impairments consisted of “a clear . . . history of bi-polar disorder” “dating way back” and
a “history of substance abuse,” though there was no evidence that Washington had used drugs
from late 2010 until the date of the hearing. R. 57-58. He also noted that he had observed “a
suggestion of PTSD” “at some point,” which led him to list that “as a rule out, something to
consider,” but he did not “see it go any further.” R. 57. Dr. Dalton testified that Washington had
“a lengthy history of pharmacotherapy, meaning medications” for her bipolar disorder — the
most often prescribed medication being Lithium. R. 58. He noted that the medication had
“some benefit in decreasing the symptoms . . . in intensity and frequency,” though it had not
completely resolved them. Id. He also stated that Washington had “a history of psychotherapy.”
Id.
Dr. Dalton testified that Washington had some limitations in her activities of daily living,
such as cooking and cleaning, but given her ability to attend church, maintain relationships with
her family, and use transportation, those limitations were only moderate. Id. She was also
6

moderately limited in her social functioning, despite experiencing “paranoia around the general
public.” Id. Finally, as to consistence, persistence, concentration, and pace, Dr. Dalton stated
that Washington’s limitations were “no more than moderate.” R. 58-59. The ALJ asked about a
new report — presumably referring to the narrative report from Dr. Paul Pierre-Antoine dated
November 3, 2011, see R. 449-50 — which stated that Washington was considerably more
limited than Dr. Dalton had testified, to which Dr. Dalton responded that he did not believe the
report was supported by Washington’s records. See R. 59-60. This was because the new report
contradicted treatment notes from the same provider from March 30, 2010 through August 5,
2011, which consistently reported that Washington was “psychiatrically stable.” Id. Dr. Dalton
quoted several portions of the notes to support this opinion. See R. 60. As to Washington’s
residual functional capacity and ability to perform work-related activities, Dr. Dalton opined that
“[l]ooking at all of this collectively . . . a person would be capable of simple work . . . in low
stress settings,” with “low social contact.” Id.
Finally, Ms. Green, the vocational expert, testified. She stated that Washington’s past
relevant work was as a babysitter, which was a “medium exertional level” job. R. 61. She
indicated that a person who is limited to low-stress tasks involving low levels of social contact
would not be able to do that job. Id. The ALJ asked Ms. Green to assume a hypothetical person
of Washington’s age, education, and prior work experience, who was limited to simple, routine,
low-stress work tasks involving low levels of interaction with people. R. 61. He inquired as to
what jobs such a person would be able to perform at a “medium level” and a “light level.” Id.
Ms. Green responded that, at the medium level, the job of laundry worker (5,000 positions
locally and 250,000 nationally) and linen room attendant (4,000 positions locally and 100,000
nationally) would be available. R. 61-62. At the medium-to-light level, packer jobs would be
7

available (10,000 positions for each of light and medium packer jobs locally and approximately
500,000 positions each nationally). R. 62. At the light level, the job of retail price marker
(3,000 positions locally and 200,000 nationally) or assembly jobs (6,000 positions locally and
1,000,000 nationally) would be available. Id.
In response to questioning by Washington’s attorney, Ms. Green opined that a
hypothetical person of Washington’s age, education, and experience would be precluded from
work if she were unable to maintain punctuality in a customary work setting. Id. Additionally,
such a hypothetical person would be precluded from the jobs that Ms. Green had listed if that
person was “essentially precluded from any contact with co-workers or the general public.” R.
62-63. In particular, if the person were precluded from contact with co-workers, “then all
competitive work would be out of the question.” R. 63.
D.

The ALJ’s Decision

On November 25, 2011, the ALJ issued a decision finding that Washington was not
disabled. R. 20-32. The ALJ found that Washington had not engaged in gainful activity since
April 30, 2009, the alleged onset date of her disability. R. 30. He further found that from April
30, 2009 through December 31, 2009, Washington had a “‘severe’ combination of obesity and
intermittent left knee complaints,” and that since January 1, 2010 she had “a bipolar affective
disorder” in addition to those conditions. Id. However, he found that Washington’s impairments
did not “meet[] or medically equal[] the requirements of any impairment listed in Appendix 1,
Subpart P of Regulations No. 4.” Id. According to the ALJ, between April 30, 2009 and
December 31, 2009, Washington was “able to perform the full range of medium work as defined
at 20 CFR 404.1567(c).” Id. From January 1, 2010, Washington was “able to perform the
exertional requirements of medium work” but was “limited to simple, low stress tasks involving
8

low levels of social interaction.” R. 31. Given this, the ALJ found that Washington was able to
perform her past relevant work as a babysitter until December 31, 2009, and that after that time,
she was able to perform other jobs that existed in significant numbers in the national economy.
Id.
The ALJ’s decision gave an extensive recitation of the hearing testimony and medical
evidence. He summarized Washington’s own testimony about her symptoms and activities, see
R. 25-26, finding that she had generally been “avoidant to questions” and that “some of her
admitted activities came out only because [the ALJ] knew to ask about them based on her own
records,” R. 26. The ALJ acknowledged that Washington was “somewhat obese,” but he noted
that “she has been losing weight with diet and exercise.” Id. He noted Washington’s
hypertension, which he described as “fully controlled with medication,” and her podiatric
surgeries, from which Washington “had completely recovered.” Id. The ALJ referred to
Washington’s “long history of sarcoidosis,” which had “not prevent[ed] her from working for
her entire career.” R. 27. He stated that, in Washington’s case, the condition manifested itself
almost entirely in the form of “intermittent nodular lesions (known as ‘erythema nodosum’) on
various parts of her body, which are treated symptomatically when they occur.” Id. He referred
to Washington’s chest pain and shortness of breath but noted that “there is hardly a single
mention of” such symptoms in Washington’s medical records, “let alone any attribution of such
symptoms to her sarcoid disease or any other disease she has under treatment.” Id. Moreover,
when Washington had complained of these symptoms, “she has had completely negative
findings (including a normal chest x-ray and cardiac testing).” Id. The ALJ also noted that
Washington had “occasional flairs of sialoadenitis (inflammation of her salivary glands),” but
she had not considered it significant enough to mention in her testimony at the hearing. Id.
9

The ALJ also summarized the results of Washington’s May 14, 2010 consultative
examination by Aurelio Salon, M.D. See id. Dr. Salon had opined that Washington “would
have a number of physical restrictions,” but that those restrictions “arose only because of her
recent foot surgery.” Id. As to Washington’s psychological symptoms, the ALJ stated that
Washington had been diagnosed with polysubstance abuse and biopolar disorder and that her
records “document fluctuating symptoms, depending on whether she is complying with her
prescribed medication or experiencing external (family) stressors.” Id. Despite those symptoms,
Washington was able to remain “relatively socially active — attending church and Bible studies
regularly, volunteering at her daughter’s dance school, making all the arrangements for her
cousin’s funeral . . . , starting a relationship with a new boyfriend . . . , etc.” R. 27-28. The ALJ
noted that Washington’s psychiatrist, Dr. Pierre-Antoine, had provided two opinions regarding
Washington’s condition and ability to function: the first of these, dated February 24, 2011,
characterized Washington as having “‘marked’ deficits in attention/concentration, keeping a
regular work schedule, working around other people, completing a normal work-week without
undue interruptions, and performing even ‘low-stress’ work tasks;” and the second, dated
November 3, 2011, characterized Washington as “markedly symptomatic and markedly limited
in several work-related areas.” R. 28. Additionally, the ALJ discussed the mental status
examination Washington had with Michael Alexander, Ph.D. on May 14, 2010. Id. The ALJ
noted that Washington was walking with a cane at the time of the examination, but he
characterized the examination results as “completely unremarkable.” Id. Dr. Alexander
diagnosed Washington with depressive disorder and polysubstance abuse and opined that these
conditions “would not significantly interfere with [Washington’s] work-related functioning.” Id.
The ALJ further noted that the Disability Determination Services review psychiatrist, Dr.
10

Altmansberger, concurred. See id.; see also R. 240 (Psychiatric Review Technique form dated
May 21, 2010, checking a box labeled “Impairment(s) Not Severe” under the heading “Medical
Disposition(s)”).
Referring to the medical expert’s testimony at the hearing, the ALJ noted that Dr. Platz
had testified that Washington’s records demonstrated a decades-long history of sarcoidosis, but
he had stated that “it has not been causing any significant symptoms.” Id. As for Washington’s
erythema nodosum, Dr. Platz testified that this “is a skin condition of no great significance,” and
the ALJ noted that Washington did not mention this condition in her testimony. Id. The ALJ
remarked that, according to Dr. Platz, Washington had a long history of left knee pain, but x-rays
of the joint were normal and Washington has “minimal clinical deficits” as a result of this
problem. Id. Additionally, the ALJ mentioned the findings that Washington has “mild and wellcontrolled hypertension,” a history of polysubstance abuse continuing into 2010, and is obese.
Id. He noted the doctor’s conclusion that “even though [Washington] has several medical
conditions, none of them — singly or in combination — would reasonably be expected to limit
her ability to function physically, at all, for twelve continuous months.” Id.
The ALJ also discussed the testimony of Dr. Dalton, who testified that Washington had a
long history of bipolar disorder, a suggestion of PTSD that was not confirmed, and a history of
polysubstance abuse. Id. The ALJ noted that Washington had been treated with various
medications, most recently Lithium, and that “[t]he medications help her symptoms in part but
do not totally relieve them.” Id. The ALJ noted that Dr. Dalton believed that Dr. PierreAntoine’s assessment of Washington — that she has “substantial functional deficits” — was not
supported by Dr. Pierre-Antoine’s own notes, which show Washington to be “overall
psychiatrically stable and functional,” with her mental status examinations being “usually
11

unremarkable.” Id. According to Dr. Dalton, Washington did not have “any Listings-level
impairment lasting for the required durational period,” and she “ought reasonably to be able to
perform simple, low stress work tasks involving no more than occasional social interaction.”
R. 28-29. The ALJ noted that Dr. Dalton’s opinion was that Washington’s “activities of daily
living are moderately impacted at most, that her social functioning is moderately impacted, that
her concentration/persistence/pace are at most moderately impacted on the entire record, and that
she has experienced no episodes of deterioration or decompensation.” R. 29.
The ALJ found that Washington was not a “particularly credible witness.” Id. This was
because “[s]he did not reveal quite a few activities when asked open-ended questions” and
“tended to discount [the] significance” of activities when reminded of them — as an example,
the ALJ noted that Washington testified that she merely “sat” on the bicycle at the gym, but she
had lost over 40 pounds, partly due to her exercise regimen. Id. Moreover, Washington “spoke
of symptoms that are not even documented in her own records, and left out many that are.” Id.
Additionally, Washington admitted “that she has no limits on sitting and few on standing” and
that she “socializes with family members and is relatively active in church.” Id.
Notwithstanding his finding that Washington was not a credible witness, the record of her
activities, and Dr. Platz and Dr. Salon’s opinions that Washington had no physical restrictions,
the ALJ stated that he was “not sure it is quite fair to rate [Washington] as having no physical
restrictions whatsoever.” Id. He instead assumed that “because of her obesity and her
intermittent left knee complaints of unclear etiology,” Washington was “limited to medium
exertional activity.” Id. As to Washington’s psychiatric condition, the ALJ noted that her
“diagnosis does appear to be bipolar disorder,” and that she “was also an intermittent
polysubstance abuser at least until mid-2010.” Id. Though “[s]he is not as reliable as she should
12

be about taking her prescribed medication,” “she does reasonably well when she does comply.”
Id. The ALJ noted that Washington was raising a teenaged child, was active in church, prepared
meals for her extended family, socialized with family members, acquired a new boyfriend during
the time of alleged disability, traveled alone on the subway to her hearing, and did volunteer
work at her daughter’s school until recently. Id.
The ALJ noted that the testimony of Ms. Green, the vocational expert, confirmed that
after January 1, 2010, Washington’s psychiatric condition would prevent her from doing her
prior work as a babysitter. R. 29-30. In response to the ALJ’s questions about a hypothetical
person of Washington’s age, education, and work experience, with her same non-exertional
limitations, Ms. Green had responded that there would be jobs available to such a person in the
national economy in significant numbers at both the medium and light levels. See R. 30. The
ALJ determined that the Commissioner’s burden of proof was therefore met and that
Washington was not disabled. Id.
II.

APPLICABLE LAW
A.

Scope of Judicial Review Under 42 U.S.C. § 405(g)

A court reviewing a final decision by the Commissioner “is limited to determining
whether the [Commissioner’s] conclusions were supported by substantial evidence in the record
and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(per curiam) (citation and quotation marks omitted); accord Burgess v. Astrue, 537 F.3d 117,
127 (2d Cir. 2008); see also 42 U.S.C. § 405(g) (2012) (“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
13

U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord
Burgess, 537 F.3d at 127-28; Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).
“Even where the administrative record may also adequately support contrary findings on
particular issues, the ALJ’s factual findings must be given conclusive effect so long as they are
supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per
curiam) (citation and internal quotation marks omitted); see McIntyre v. Colvin, 758 F.3d 146,
149 (2d Cir. 2014) (“If evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld.”) (citation omitted). Thus, “[i]f the reviewing court
finds substantial evidence to support the Commissioner’s final decision, that decision must be
upheld, even if substantial evidence supporting the claimant’s position also exists.” Johnson v.
Astrue, 563 F. Supp. 2d 444, 454 (S.D.N.Y. 2008) (citing Alston v. Sullivan, 904 F.2d 122, 126
(2d Cir. 1990)). The Second Circuit has characterized the “substantial evidence” standard as “a
very deferential standard of review — even more so than the ‘clearly erroneous’ standard.”
Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 447-48 (2d Cir. 2012) (per curiam) (citation
omitted). “The substantial evidence standard means once an ALJ finds facts, [a court] can reject
those facts only if a reasonable factfinder would have to conclude otherwise.” Id. at 448
(emphasis in original) (citation and internal quotation marks omitted). “The role of the
reviewing court is therefore quite limited and substantial deference is to be afforded the
Commissioner’s decision.” Johnson, 563 F. Supp. 2d at 454 (citation and internal quotation
marks omitted).
B.

Standard Governing Evaluation of Disability Claims by the Agency

The Social Security Act defines the term “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
14

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 12 months.” 42 U.S.C. § 423(d)(1)(A). A person
will be found to be disabled only if it is determined that his “impairment or impairments are 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.” Id. § 423(d)(2)(A).
To evaluate a claim of disability, the Commissioner is required to examine: “(1) the
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.” Mongeur v. Heckler, 722 F.2d 1033, 1037
(2d Cir. 1983) (per curiam) (citations omitted).
Regulations issued pursuant to the Social Security Act set forth a five-step process that
the Commissioner must use in evaluating a disability claim. See 20 C.F.R. §§ 404.1,
404.1520(a)(4) (2014); see also Burgess, 537 F.3d at 120 (describing the five-step process).
First, the Commissioner must determine whether the claimant is currently engaged in any
“substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(I). Second, if the claimant is not
engaged in substantial gainful activity, the Commissioner must decide if the claimant has a
“severe medically determinable physical or mental impairment,” id. § 404.1520(a)(4)(ii), which
is an impairment or combination of impairments that “significantly limits [the claimant’s]
physical or mental ability to do basic work activities,” id. § 404.1520(c). Third, if the claimant’s
impairment is severe and “meets or equals” one of the listings in 20 C.F.R. Part 404, Subpart P,
Appendix 1, and “meets the duration requirement,” the claimant must be found disabled. Id.
§ 404.1520(a)(4)(iii). Fourth, if the claimant’s impairment does not meet or equal one of the
15

listed impairments, or does not meet the duration requirement, the Commissioner must review
the claimant’s residual functional capacity to determine if the claimant is able to do the work he
or she has done in the past, i.e., “past relevant work.” Id. § 404.1520(a)(4)(iv). If the claimant is
able to do such work, he or she is not disabled. Id. Finally, if the claimant is unable to perform
past relevant work, the Commissioner must decide if the claimant’s residual functional capacity,
in addition to his or her age, education, and work experience, permit the claimant to do other
work. Id. § 404.1520(a)(4)(v). If the claimant cannot perform other work, he or she will be
deemed disabled. Id. The claimant bears the burden of proof on all of these steps except the
final one — that is, proving that there is other work the claimant can perform. See Poupore v.
Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam).
III.

DISCUSSION
Washington seeks remand or reversal of the ALJ’s decision on the grounds that the ALJ

failed to apply the “psychiatric review technique,” failed to properly weigh the medical
evidence, failed to properly evaluate Washington’s credibility, and failed to adequately consider
Washington’s obesity. Pl. Mem. at 12-24. We address each of these claims in turn.
A.

The Psychiatric Review Technique

Washington argues that the ALJ erred in his evaluation of her mental impairments by
failing to follow the “special technique” provided by 20 C.F.R. § 404.1520a for evaluating
mental impairments. See Pl. Mem. at 17-18. This technique requires, first, that the ALJ
evaluate the claimant’s “pertinent symptoms, signs, and laboratory findings to determine
whether [he or she has] a medically determinable mental impairment(s).” 20 C.F.R.
§ 404.1520a(b)(1). If the claimant is determined to have such impairments, the ALJ must
“specify the symptoms, signs, and laboratory findings that substantiate the presence of the
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impairment(s) and document [his] findings.” Id. Second, the ALJ must “rate the degree of
functional limitation resulting from the impairment(s)” in four broad areas: “[a]ctivities of daily
living; social functioning; concentration, persistance, or pace; and episodes of decompensation.”
Id. §§ 404.1520a(b)(2)(3), (c); accord Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008).
“[T]he regulations require application of this process to be documented.” Kohler, 546 F.3d at
266 (citing 20 C.F.R. § 404.1520(e)).5 Specifically, the ALJ’s written decision “must include a
specific finding as to the degree of limitation in each of the functional areas” listed above. 20
C.F.R. § 404.1520a(e)(4). Where the reviewing court cannot identify the ALJ’s findings
regarding the degree of the claimant’s limitations in the four functional areas or discern whether
the ALJ properly considered all relevant evidence to those areas, remand is appropriate. See
Kohler, 546 F.3d at 269; accord Jenkins v. Comm’r of Soc. Sec., 769 F. Supp. 2d 157, 162
(W.D.N.Y. 2011).
Here, the Commissioner essentially concedes that the ALJ did not follow the “special
technique” prescribed by § 404.1520a. Instead, the Commissioner seems to argue that the ALJ
satisfied that section’s requirements because his decision relied upon evidence from Dr. Dalton,
who made specific findings in each of the four functional areas, and it “reflect[ed] consideration
for evidence relating to” those areas. Comm’r Mem. at 20-21. We reject this argument. It

5

This documentation apparently used to be done in the form of a Psychiatric Review
Technique form, but the regulations no longer require that such a form be completed by the ALJ.
See Kohler, 546 F.3d at 266 (citing Revised Medical Criteria for Evaluating Mental Disorders
and Traumatic Brain Injury, 65 Fed. Reg. 50746, 50748 (Aug. 21, 2000)). There is evidence that
such a form was completed by Dr. Altmansberger, see R. 240, but the record does not contain all
the pages of that form, and the ALJ’s decision only references the one page that is contained in
the record, see R. 28. That page does not contain any information about the four functional
areas. See R. 240. We therefore cannot conclude that this form provides a sufficient basis for
the ALJ’s decision.
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would be one thing if the ALJ’s decision made the appropriate findings without invoking the
psychiatric review technique in so many words. But here, it did not. While the decision may be
read as approving Dr. Dalton’s assessment of Washington’s limitations, see R. 28-29, the
decision does not clearly set forth the “symptoms, signs, and laboratory findings” that
substantiate the presence of limitations in each of the four functional areas.
The cases cited by the Commissioner do not require a different result. In Comins v.
Astrue, 374 F. App’x 147 (2d Cir. 2010), the court noted that “the ALJ’s decision specifically
expounded on each of the four functional areas of the special technique.” Id. at 150. In
Arguinzoni v. Astrue, 2009 WL 1765252 (W.D.N.Y. June 22, 2009), the court held that the
ALJ’s failure to record specific findings in each of the four areas was harmless error, because the
ALJ had “highlighted his findings” and cited medical evidence sufficient for the court to
determine what his decision would have been had he adhered to the special technique. See id. at
*8-9. Here, by contrast, we lack any findings by the ALJ that substantiate the limitations found
as to each of the four functional areas. See Jenkins, 769 F. Supp. 2d at 162 (“[T]he Court is not
free to engage in speculation concerning what the ALJ might have concluded had the technique
been applied in the first instance.”). Accordingly, the case must be remanded for further
proceedings.
B.

The ALJ’s Weighing of the Medical Evidence

Washington claims that the ALJ “[f]ailed to [p]roperly [w]eigh the [m]edical
[e]vidence,” Pl. Mem. at 12 — an argument that seems to rest on Washington’s contention that
the ALJ failed to follow the treating physician rule with respect to the evidence from Dr. PierreAntoine and that the ALJ’s explanation of Washington’s residual functional capacity was
lacking. See Pl. Mem. at 12-17.
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As for the treating physician rule, Washington argues that the ALJ failed to follow the
treating physician rule because he did not “properly account for the opinions provided by [the]
treating psychiatrist, Dr. Pierre-Antoine.” Pl. Mem. at 14. The Commissioner argues that the
ALJ was justified in not giving controlling weight to Dr. Pierre-Antoine’s opinions because his
opinion was not “well supported by medically acceptable clinical and laboratory diagnostic
techniques and consistent with other substantial evidence of record,” including evidence from
the consultative examiner and other record evidence. Comm’r Mem. at 23 (citing 20 C.F.R.
§§ 404.1527(c), 416.927(c)).
In determining whether a claimant is disabled, a treating physician’s opinion is entitled to
controlling weight if 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). Under this rule, the Commissioner is not required to give deference to the
treating physician’s opinion where the treating physician “issued opinions that are not consistent
with other substantial evidence in the record, such as the opinions of other medical experts.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (citation omitted). Moreover,
“the less consistent [a treating physician’s] opinion is with the record as a whole, the less weight
it will be given.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). “Genuine conflicts in the
medical evidence are for the Commissioner to resolve.” Veino v. Barnhart, 312 F.3d 578, 588
(2d Cir. 2002) (citation omitted).
Where an ALJ does not give controlling weight to the opinion of a treating physician, he
must consider other factors in determining what weight to give the available opinions. 20 C.F.R.
§ 404.1527(c)(2); accord Halloran, 362 F.3d at 32. These factors include: (1) the “[l]ength of the
treatment relationship and the frequency of examination,” (2) the “[n]ature and extent of the
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treatment relationship,” (3) the evidence and explanations supporting an opinion, (4) the
consistency of the opinion with the record as a whole, and (5) whether the person offering the
opinion is a specialist in the area at issue. 20 C.F.R. § 404.1527(c)(2)-(5). Additionally, the ALJ
must provide “good reasons” for not affording the treating physician’s opinion controlling
weight. E.g., Halloran, 362 F.3d at 32 (citations omitted); accord 20 C.F.R. § 404.1527(c)(2).
Here, the ALJ did not mention the treating physician rule or even explain what weight he
afforded each medical opinion. The ALJ did note that Washington’s treating psychiatrist, Dr.
Pierre-Antoine, had provided two reports indicating that Washington was “markedly limited in
several work-related areas.” R. 28; see R. 270-77 (Dr. Pierre-Antoine’s
Psychiatric/Psychological Impairment Questionnaire dated February 24, 2011); R. 449-50
(narrative from Dr. Pierre-Antoine dated November 3, 2011); see also R. 469-71 (“Psychiatric
Update” from Dr. Pierre-Antoine dated July 12, 2011, containing a similar opinion, which the
ALJ did not mention). The ALJ also noted that Dr. Dalton disagreed with Dr. Pierre-Antoine.
See R. 28. But the ALJ never explicitly stated that he was accepting Dr. Dalton’s analysis over
that of Dr. Pierre-Antoine, let alone explain why he was doing so. In light of the fact that the
case is being remanded, the ALJ should give the “good reasons,” if any, why he did not afford
controlling weight to Dr. Pierre-Antoine’s opinion.
As for the determination of residual functional capacity, the remand will create a
different record with respect to any psychological limitations. Accordingly, we do not feel it
appropriate to address Washington’s arguments on this topic in this Opinion and Order.
As to Washington’s physical impairments, the ALJ on remand should express with
greater clarity whether and to what degree he was accepting Dr. Platz and Dr. Salon’s evidence
and rejecting Washington’s testimony. The current decision seems to implicitly accept these
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doctors’ findings — though the ALJ stated that he accepted Washington’s testimony regarding
her left knee complaints. See R. 29. But the decision never explicitly adopts the doctors’
findings. As part of the remand process, the ALJ should also discuss the weight he gives to the
evidence about Washington’s physical complaints contained in the medical records from
Washington’s treating physicians, Dr. Patel and Dr. Naarendorp.
C.

The ALJ’s Evaluation of Washington’s Credibility

“It is the function of the [Commissioner], not [the reviewing court], to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.”
Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (citations omitted).
Thus, the ALJ, “after weighing objective medical evidence, the claimant’s demeanor, and other
indicia of credibility . . . may decide to discredit the claimant’s subjective estimation of the
degree of impairment.” Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir. 1999) (construing and citing
with approval Pascariello v. Heckler, 621 F. Supp. 1032, 1036 (S.D.N.Y. 1985)). According to
Washington, the ALJ did not properly evaluate her credibility because he did not cite record
evidence that conflicted with Washington’s testimony and because his evaluation of
Washington’s daily activities did not demonstrate her inability to work. See Pl. Mem. at 20-21.
Once again, the remand will create a different record from that before the Court today.
Accordingly, we do not find it necessary to address Washington’s contentions on this point. We
do note, however, that there may be one instance in which the ALJ misread the record. In his
decision, the ALJ stated that Washington testified that her visits to the gym consisted of “nothing
more than ‘sitting’ on an exercise bicycle.” R. 29. This finding appears to be based on the
following statement from Washington’s testimony: “I sit down on the bike.” R. 50. But
Washington seemed to make clear at the hearing that she did more than just sit on the bike. See
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id. (“I just sit down and bike, and I do the bike”); R. 51 (“I try to do as much as I could.”). It
thus appears that the ALJ may have taken Washington’s words “sit down on the bike” out of
context, a matter that the ALJ may wish to correct on remand.
D.

The ALJ’s Consideration of Washington’s Obesity

Washington argues that the ALJ erred by “fail[ing] to consider the impact that Ms.
Washington’s obesity had on her residual functional capacity or on her other impairments.” Pl.
Mem. at 23. But “[o]besity is not in and of itself a disability,” and courts have held that “an
ALJ’s failure to explicitly address a claimant’s obesity does not warrant remand.” Guadalupe v.
Barnhart, 2005 WL 2033380, at *6 (S.D.N.Y. Aug. 24, 2005) (citing Titles II and XVI:
Evaluation of Obesity, SSR 00–3p, 2000 WL 33952015 (May 15, 2000)) (additional citations
omitted). “An ALJ’s final determination can constitute an appropriate consideration of the
effects of obesity if it properly weighs evaluations by doctors that have accounted for the
claimant’s obesity.” Paulino v. Astrue, 2010 WL 3001752, at *18 (S.D.N.Y. July 30, 2010).
Here, the ALJ’s decision adequately addressed Washington’s obesity. The decision
summarized record evidence of her obesity, see R. 26-28, and his residual functional capacity
assessment mentioned her obesity, see R. 29. Additionally, the record contained ample evidence
from doctors who had accounted for Washington’s obesity, see, e.g., R. 169, 172, 175, 178, 181,
183, 185, 189, 191, 193, 196, 199 (notes from Washington’s primary physician, Dr. Patel,
indicating that Washington was obese and that he strongly encouraged weight loss); R. 54
(testimony from Dr. Platz that Washington was obese), which evidence the ALJ apparently
considered in rendering his decision, see R. 26 (the ALJ’s decision mentioning Washington’s
records and testimony with respect to her obesity and weight loss). Therefore, the ALJ
sufficiently considered Washington’s obesity, and he need not discuss it further on remand.
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IV.

CONCLUSION
For the reasons discussed above, the Commissioner's motion for judgment on the

pleadings (Docket# 12) is denied, and Washington's motion for judgment on the pleadings
(Docket # 6) is granted. The case is remanded for further proceedings consistent with this
Opinion and Order. The Clerk is requested to enter judgment.
SO ORDERED.
Dated: March 31, 2015
New York, New York

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