Washington v. Commissioner of Social Security

Filing 19

MEMO ENDORSEMENT re: 18 Report and Recommendations. ENDORSEMENT: No objections have been received. No adjournment of the due date was requested. The Court adopts the Magistrate Judge's Report as its opinion. The motion by plaintiff for judgme nt on the pleadings is granted to the extent of remanding to the Commissioner for further consideration of mental impairment; the Commissioner's cross motion is denied. The Clerk will remove #12 and #16 from the court's list of open motions and close the file. (Signed by Judge Colleen McMahon on 2/24/2015) (kgo)

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USDCSDNY
DOCUMENT
ELBCTRONICALLY FILED
DOC#: ______~~-DATE FILEO: __..~~-

UNITED STATES DISTRICT COURT
SOUTHERN DIS1RICT OF NEW YORK
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PAMELA R. WASHINGTON,
Plaintiff,

13cvl264 (CM) (DCF)

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CAROLYN W. COLVIN
Acting Commissioner of Social Security,

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Plaintiff Pamela Washington ("Plaintiff') seeks review of the final decision of the Acting
Commissioner of Social Security ("Defendant" or the "Commissioner"), denying Plaintiff
S11J>J>lemental SCcurity Income ("SSl") wider the Social Security Act (the "Act") on the ground
tllat Plaintiff's impairments did not constitute a disability for the purposes of the Act. Plaintiff
has moved, pursuant to Rr.ule 12(c) of the Federal Rules of Civil Procedure, for judgment on the

pleadings reversing the decision of the Commissioner (Dkt. 12), and Defendant has cross-moved
for judgment on tlie plead:inas affirming that decision (Dkt. 16).
For the r~asona set forth below, I respectfully recommend. (a) that Plaintiff's mo'liion be

I

Case 1:13-cv-01264-CM-DCF Document 18 Filed 01/26/15 Page 2 of 49

BACKGROUND
Plaintiff applied for SSI on April 28, 2010 (see R. at 161-67), alleging that she was
disabled due to bipolar disorder with psychotic features, post-traumatic stress disorder and
cocaine and alcohol dependence (id. at 187). In the course of her administrative proceedings, she
also seemed to claim disability based on certain physical conditions, most specifically alleged
pain and numbness in her hands. (See id. at 41.)
The background facts set forth herein are taken from the administrative record (referred
to herein as "R."), which includes, inter a/ia, Plaintiffs medical records and the transcript of the
May 18, 2011 hearing held before Administrative Law Judge Glenn G. Meyers (the "ALJ"), at
which Plaintiff testified.

A.

Medical Evidence

The relevant medical evidence in the administrative Record may be summarized as
follows: 1

1.

Treatment Records
a.

North General Hospital (July 13-22, 2009)

Plaintiff was admitted to North General Hospital from July 13 through 22, 2009.
(See id. 234-61.) It appears from the medical records that she first presented to the hospital's

Emergency Department with complaints of depression and hearing voices, and that she was
suffering from "vague suicidal ideations," "mild dizziness," and headaches. (Id. at 236, 239.)
The hospital records indicate a medical diagnosis of"substance induced mood/Psychotic

1

This summary is intended to focus primarily on the conditions that form the basis of
Plaintiffs claimed disability. The Court has, therefore, generally omitted references to the
medical records; where they mention certain other conditions that Plaintiff may have had - such
as "alopecia areata" (a form of hair loss). (See R. at 279.)

2

Case 1:13-cv-01264-CM-DCF Document 18 Filed 01/26/15 Page 3 of 49

Disorder" and note that major depressive or bipolar disorder with psychotic features would need
to be ruled out. (Id. at 241.) The same records also reference "methadone maintenance, alcohol
dependence, [and] cocaine abuse" (id.), although it is unclear whether these were confirmed or
suspected (see id.; see also id. at 245 ("substance induced psychotic disorder vs. major
depressive disorder [with] psychotic features vs. bipolar disorder [with] psychotic features")).
Plaintiff appears to have been discharged on July 22, 2009 with a referral to a walk-in
clinic and "no restrictions" with respect to activities. (Id. at 235.)

b.

St. Barnabas Hospital (August 3-4, 2009)

On August 3, 2009, Plaintiff was taken to the Emergency Department at St. Barnabas
Hospital, after reportedly threatening her neighbor. (Id. at 262-63.) According to the physician's
notes, Plaintiff stated that she had been drinking alcohol constantly for several days prior, and
complained that she was uncomfortable because something out of the ordinary was "happening
to her body" and she was "hearing voices." (Id. at 263.) The physician diagnosed Plaintiff with
schizophrenia (id. at 265; see also id. at 263 ), and discharged Plaintiff on August 4, 2009 (id.
at 264).

c.

Bronx-Lebanon Hospital (September 2009-June 2011)

The Record reflects that, on various dates between September 2009 and April 20 I 0,
possibly in connection with a drug treatment program (although this is not clear), Plaintiff
underwent a number of screening tests for cocaine, opiates, and other illegal drugs, at the Martin
Luther King Jr. Health Center of Bronx-Lebanon Hospital ("Bronx-Lebanon") (see id.
at 282-303); these tests consistently showed negative results (see id.).
On March 23, 20 I 0, Plaintiff went to the Emergency Department at Bronx-Lebanon. (Id.
at 314.) In the "Emergency Triage" record from that day, Plaintiffs chief complaints were

3

Case 1:13-cv-01264-CM-DCF Document 18 Filed 01/26/15 Page 4 of 49

recorded as "pain and numbness to both hands" that had lasted for two weeks, depression, and
hearing voices. (Id. at 319.) In the record labeled "Neuro Symptoms" from that day, Plaintiffs
chief complaint was recorded as "tingling in [her] fingertips." (Id. at 314.) Plaintiff was
diagnosed by Dr. Tania Mariani with "paresthesias" 2 in both hands and discharged with
instructions to follow up. (Id. at 318.)
At a follow-up appointment on April 21, 2010, Plaintiff was seen by Dr. James R. Morris.

(See id. at 300.) Plaintiff again complained of numbness and tingling in both hands, stating that
she had experienced this for over 10 years, including while detoxing from methadone in 2009.
(Id. at 288.) She also reported that she was not on medication for this problem and that it did not
cause her to drop things, but that her finger joints were stiff at times. (Id.) Dr. Morris listed
"Arthritis" on Plaintiffs "Problem List," though he scored Plaintiffs motor function at five out
of five in all limbs and noted that she had "no deficits of sensation to touch, temperature,
vibration and proprioception." 3 (Id.) He also noted "no tremor or sign of dystonia," 4 and a
normal "station and gait." (Id.) Dr. Morris's assessment called for X-rays of Plaintiffs hands, a
follow-up appointment one month later, and a trial prescription ofNabumetone (an anti-

2

"Paresthesia refers to a burning or prickling sensation that is usually felt in the hands,
arms, legs, or feet, but can also occur in other parts of the body."
http://www.ninds.nih.gov/disorders/paresthesia/paresthesia.htm (last visited January 23, 2015).
3

"Proprioception can be defined as a specialized variation of the sensory modality of
touch that encompasses the sensation of joint movement (kinesthesia) and joint position Uoint
position sense).'' http://www.ncbi.nlm.nih.gov/pubmed/9006708 (last visited January 23, 2015).
4

"Dystonia is a disorder characterized by involuntary muscle contractions that cause
slow repetitive movements or abnormal postures."
http://www.ninds.nih.gov/disorders/dystonias/detail dystonias.htm (last visited, Jan. 13, 2015).
4

Case 1:13-cv-01264-CM-DCF Document 18 Filed 01/26/15 Page 5 of 49

inflammatory medication), 5 "in an effort to minimize her symptoms." (Id at 300.) Plaintiff filed
her application for SSI about a week after this appointment. (See id. at 161-67.)
The Record reflects that Plaintiff then had a second follow-up visit to Bronx-Lebanon on
June 7, 2010, where it appears that she was again seen by Dr. Morris. (Id. at 283-87.) During
that appointment, Plaintiffs "chief complaint" was numbness in her hands, but she apparently
reported that the Nabumetone had helped "ease the pain in both of her hands." (Id. at 283.) The
X-rays of Plaintiffs hands were found to be "unremarkable," and Plaintiffs motor function was
again described as five out of five in all limbs. (Id.) The summary signed (electronically) by
Dr. Morris stated that Plaintiff was "doing better." (Id. at 286.) He increased her dosage of
Nabumetone to ease some discomfort caused by inflammation, and gave her instructions for a
follow-up appointment in six or seven weeks. (Id.)

It appears that the Bronx-Lebanon records that were requested by the Social Security
Administration, in connection with Plaintiffs claim for benefits, were provided by BronxLebanon on July 11, 2010. (See id. at 282.) The Record is silent as to whether Plaintiff
continued to be seen there, after July 2010.

d.

Montifiore Behavioral Care Center
(August 2010-May 2011)
(Treatment by Psychiatrist lmtiaz Ghumman)

On August 10, 2010, Plaintiff was seen by Dr. Imtiaz Ghumman, a psychiatrist at
Montefiore Behavioral Care Center, who outlined an "Initial/Comprehensive Treatment Plan"
for her. (Id. at 370.) Dr. Ghumman recorded, inter a/ia, depression/anxiety, mood swings,

5

Nabumetone is a "nonsteroidal anti-inflammatory" medication that is "used to relieve
pain, tenderness, swelling, and stiffness caused by osteoarthritis ... and rheumatoid arthritis."
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a692022.html (last visited on Jan. 23,
2015).

5

Case 1:13-cv-01264-CM-DCF Document 18 Filed 01/26/15 Page 6 of 49

disturbed sleep, and "psychosocial stressors" as Plaintiffs "problems." (Id.) The treatment plan
indicated that Plaintiff needed regular psychotherapy and medication management. (Id.)
Dr. Ghumman assigned Plaintiff a global assessment of functioning ("GAF") score of 50. 6
On December 23, 2010, Plaintiff completed a questionnaire for the Montefiore SleepWake Disorders Center. (See id. at 359-69.) Plaintiff reported that she had difficulty falling and
staying asleep, and a host of other problems related to sleep, including, inter alia, waking up
with headaches, waking up choking or gasping for air, nightmares, daytime fatigue, mood
changes, anxiety, irritability, and severe pain in her legs at night. (See id. at 359-63 .) Plaintiff
also reported feelings of depression and anxiety "nearly every day." (Id. at 365.)
On the part of the questionnaire that called for Plaintiff to list all medications that she was
then using, Plaintiff listed, inter alia, one medication associated with the treatment of insomnia,
Temazepam 7 ; three medications that are generally used to treat psychiatric problems, specifically

6

The GAF scale, a scale from 0 to 100, was previously used by clinicians to report their
judgment of an individual's overall level of functioning. American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. rev. 2000) ("DSM-IV"). A
GAF of 41 to 50 meant an individual had "serious symptoms" or "any serious impairment in
social occupational, or school functioning." Id. at 34. The most recent (2013) addition of the
manual (the "DSM-V"), however, "has dropped the use of the [GAF] scale." Restuccia v.
Colving, No. 13cv3294 (RMB), 2014 WL 4739318, at *8 (Sept. 22, 2014) (quoting Mainella v.
Colvin, No. 13cv2453, 2014 WL 183957, at *5 (E.D.N.Y. Jan. 14, 2014)).
7

Temazepam, commonly known by the brand name Restoril, is a benzodiazepine
medication that is "used on a short-term basis to treat insomnia (difficulty falling asleep or
staying asleep)." http://www.nlm.nih.gov/medlineplus/druginfo/meds/a684003.html (last visited
on Jan. 23, 2015).
6

Case 1:13-cv-01264-CM-DCF Document 18 Filed 01/26/15 Page 7 of 49

Risperidone, 8 Seroquel, 9 and Sertraline 10 ; Nabumetone (as described supra, at n.5); and certain
other medications of less relevance here. 11 (See id. at 363.)
A few days later, on December 28, 2010, in connection with Plaintiffs application for
SSI, Dr. Ghumman filled out a questionnaire, in which he stated that Plaintiff had been under his
care since August 10, 2010. (Id. at 371.) Dr. Ghumman noted that he had seen Plaintiff on
December 4, 2010, 12 although her most recent visit had been on December 28, 2010, the day he
completed the form. (Id.) Dr. Ghumman stated that Plaintiff had been "compliant with her
treatment," and recorded that her medication included Risperdal (see supra n.8), Seroquel

(see supra n.9), Zoloft (see supra n.10), and Restoril (see supra n.7). (R. at 371.)

8

Risperidone, commonly known by the brand name Risperdal, "is used to treat
schizophrenia, bipolar disorder, or irritability associated with autistic disorder."
http://www.mayoclinic.org/drugs-supplements/risperidone-oral-route/description/drg-2006 7189
(last visited on Jan. 23, 2015).
9

Seroquel is the brand name for Quetiapine, a medication used to treat the symptoms of
schizophrenia as well as episodes of mania or depression in patients with bipolar disorder.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a698019.html#why (last visited on Jan. 23,
2015).
10

Sertraline, commonly known by the brand name Zoloft, is a type of antidepressant
called a selective serotonin reuptake inhibitor (SSRI) used to treat depression, obsessivecompulsive disorder, panic attacks, posttraumatic stress disorder.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a697048.html (last visited on Jan. 23,
2015).
11

These additional medications included Diphenhydramine (an antihistamine), see
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682539.html#why (last visited on Jan. 23,
2015), and Simvastatin (a cholesterol medication), see
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a692030.html (last visited on Jan. 23,

2015).
12

No medical records from this visit appear to be in the Record.

7

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Dr. Ghumman reported that Plaintiff suffered from "depression, mood swings, psychosis
(hearing voices [and] feeling paranoid), sleep disturbances, and difficulty ... focus[ing] and
concentrat[ing]." (Id) He stated that Plaintiff was "relatively clinically stable on treatment, but
[did] have emotional and behavioral exacerbations on and off, affecting her baseline routine
life." (Id.) He reported that she still "experience[d] depression [and] anxiety" and that she still
"hear[d] voices," although less in severity and frequency. (Id.) He also noted that she was "still
paranoid" and found it "difficult[] to focus." (Id.)
Using the multiaxial method of assessment, 13 Dr. Ghumman diagnosed Plaintiff with
"major depression with psychotic features" on Axis I, with a need to rule out "schizoaffective
disorder" (id. at 372), and, for Axis II, he similarly indicated the need to rule out "schizoaffective
personality" disorder (id.). For Axis III, he recorded an "enlarged thyroid" and "arthritis." (Id.)
As to Axis IV, Dr. Ghumman noted "chronic mental illness, disturbed childhood, [and] no
children." (Id.) Finally, for Axis V, Dr. Ghumman recorded a GAF of 55. 14 (Id.)
Dr. Ghumman's prognosis was that Plaintiff suffered from "chronic mental illness" and
seemed to be in need of "long-term Psychiatric Treatment." (Id) Also, Dr. Ghumman circled
"Yes" in response to the question "Ha[ve] the patient's impairments lasted or can [they] be
expect[ed] to last at least twelve months?" (Id)

13

The multiaxial system of assessment "involves an assessment on several axes, each of
which refers to a different domain of information." DSM-IV at 27. Axis I refers to clinical
disorders and other conditions that may be the focus of clinical attention; Axis II refers to
personality disorders and mental retardation; Axis III refers to general medical conditions that
may be relevant to the understanding or management of the individual's mental disorder;
Axis IV refers to psychosocial and environmental problems that may affect the diagnosis,
treatment, and prognosis of mental disorders; and Axis V refers to GAF. Id.
14

A GAF score in the 51-60 range signifies "moderate symptoms or moderate difficulty
in social, occupational, or school situations." Petrie v. Astrue, 412 F. App'x 401, 506 n.2
(2d Cir. 2011) (citing DSM-IV at 376-77).
8

Case 1:13-cv-01264-CM-DCF Document 18 Filed 01126/15 Page 9 of 49

On May 14, 2010, Dr. Ghumman completed a "Medical Assessment of[Plaintiffs]
Ability To Do Work-Related Activities (Mental)." (Id. at 373-75.) As to limitations in making
an occupational adjustment, Dr. Ghumman stated that Plaintiff suffered from "mood swings ...
hallucinations, depression, [and] difficulty focusing," which "affect[ed] her baseline functional
level." (Id. at 374.) As to limitations in making a performance adjustment, Dr. Ghumman
similarly noted that Plaintiff suffered from "paranoia, mood swings, anger issues, hallucinations,
sleep[] difficulty, [and] difficulty focusing and concentrating," which the doctor again found to
"affect her baseline functional level." (Id.) Dr. Ghumman indicated that any stress, work-related
or not, could "deteriorate [Plaintiffs] clinical condition" and that Plaintiff"seem[ed] to suffer
from chronic mental illness." (Id. at 375.)
Dr. Ghumman did not, however, fill out the portion of the form regarding Plaintiffs
limitations as to ability to transition into a new job, make a performance adjustment, or make
personal/social adjustments, as he considered those topics "beyond [the] scope of [his]
assessment." (Id. at 373-74.) Dr. Ghumman also declined to give an opinion where the form
asked for a description of any limitations Plaintiff had as to personal-social adjustment. (Id.
at 374.) As to the medications Plaintiff was taking as of May 14, 2011, Dr. Ghumman listed
Risperdal (see supra n.8), Seroquel (see supra n.9), Zoloft (see supra n.10), and Wellbutrin. 15
(R. at 375.)

15

Wellbutrin is a brand name of Bupropion, a medication used to treat depression.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a695033.html (last visited Jan. 23, 2015).
9

Case 1:13-cv-01264-CM-DCF Document 18 Filed 01/26/15 Page 10 of 49

2.

Consultant Reports
a.

Psychiatric Consultative Examination
(June 1, 2010, by Dr. Joyce Schreiber)

In connection with her application for SSI, Plaintiff underwent a psychiatric examination
on June 1, 2010, by a consultant, Dr. Joyce Schreiber. Dr. Schreiber noted that Plaintiff had
traveled approximately 12 miles by herself, via public transportation, to the appointment. (Id.
at 304.) Plaintiff reported that she was unemployed at the time, had last worked in April of
2008, 16 and that she had stopped working due to "psychiatric problems." (Id.) Plaintiff stated
that she had previously been hospitalized for psychiatric reasons three times. (Id.) Plaintiff also
acknowledged a history of substance abuse, but stated that she had been sober for five years and
attended treatment sessions at the Martin Luther King Jr. Health Center. (Id. at 304-05.)
According to Dr. Schreiber, Plaintiff reported a range of psychiatric symptoms associated
with depression and mania, including, inter alia, hopelessness, loss of interests, recurrent
thoughts of death or suicide with no suicidal intent, flight of ideas, problems with concentration,
distractibility and psychomotor agitation. (Id. at 305.) Plaintiff also stated that she heard voices,
which told her "negative things" and made her "angry." (Id.) Dr. Schreiber noted that Plaintiff
was appropriately dressed and spoke fluently, and that her thought processes were "coherent and
goal-directed." (Id. at 305-06.) Dr. Schreiber also reported, though, that Plaintiff appeared
depressed and sad. (Id. at 306.)
Dr. Schreiber noted that Plaintiffs "attention and concentration [were] intact," as she was
"able to count forward and backwards" and "could do simple calculations and serial 3's." (Id.)
She also reported that Plaintiffs "recent and remote memory skills were fair" and that Plaintiff

16

This time line of Plaintiffs employment is inconsistent with statements on her disability
report (R. 186-94) that she last worked in Apri 1of 2009.

JO

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"appear[ed] [to be] of borderline intellectual functioning," with "a slightly limited general fund
of information." (Id.) With regard to her mode of living, Plaintiff reported to Dr. Schreiber that
she was able to dress, bathe, and groom herself, as well as to do some laundry, cleaning and
shopping. 17 (Id.) Dr. Schreiber concluded that, vocationally, Plaintiff appeared capable "of
following, understanding, and remembering simple instructions and directions," and of
performing simple tasks and maintaining a schedule. (Id. at 307.) Dr. Schreiber also noted,
however, that Plaintiff had a history of difficulties in making appropriate decisions, dealing with
stress, and being able to interact appropriately with others. (Id.) Dr. Schreiber found that the
results of her examination "appear[ed] to be consistent with psychiatric problems ... [which]
may significantly interfere with [Plaintiff's] ability to function on a daily basis." (Id.)
Using the multiaxial method of assessment (see supra at n.13), Dr. Schreiber diagnosed
Plaintiff, on Axis I, with "Schizoaffective Disorder," "Bipolar Disorder NOS" (Not Otherwise
Specified), and "Polysubstance Dependence in full sustained remission." (Id.) On Axis II, she
diagnosed Plaintiff with "Personality Disorder with Borderline Features" and, on Axis III, with
"recurrent muscle/joint pain." (Id.) Dr. Schreiber recommended that Plaintiff"continue with
psychological, psychiatric, and substance abuse treatment" and undergo a medical evaluation to
reveal the cause of her physical symptoms. (Id.) Dr. Schreiber gave Plaintiff a "cautious to
guarded" prognosis and stressed the importance of"continued intervention and support." (Id.)

b.

Internal Medicine Consultative Examination
(June 30, 2010, by Dr. Sharon Revan)

On June 30, 2010, a consulting internist, Dr. Sharon Revan, conducted an internal
medicine examination of Plaintiff, in connection with her application for SSL (See id. at 321.)

17

Part of this statement is inconsistent with Plaintiffs testimony at the administrative
hearing that she was sometimes unable to bathe. (R. at 39.)
11

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At that examination, Plaintiff reported a history of psychiatric issues, including bipolar disease,
anxiety, paranoia, schizophrenia, depression, and hearing voices, and she told Dr. Revan that she
had been evaluated by a psychologist several weeks earlier. (Id. at 321.) According to
Dr. Revan, Plaintiff also complained of hypothyroidism, hand pain, eye pain, bronchitis, and
shortness of breath upon walking three blocks or climbing steps. (Id.) Dr. Revan listed the
medications that Plaintiff was taking, including, inter alia, Ambien, 18 Seroquel (see supra n.9),
Zoloft (see supra n.10), Simvastatin (see supra n.11 ), and Nabumetone (see supra n.5).
(R. at 322.) 19 Plaintiff also reported a history of drug abuse. (Id.) Plaintiff stated that she
showered, dressed, and cooked for herself, that she was able to do some cleaning and laundry,
and that she watched television and followed up with her doctor, but that her hands hurt and the
pain sometimes caused her to drop things. (Id.)
Dr. Revan diagnosed Plaintiff with the following: hypothyroidism, eye problems, hand
problems, muscle twitching, bronchitis, bipolar disease, anxiety, paranoia, schizophrenia, hearing
voices and hallucinating, and depression. (Id. at 324.) She gave Plaintiff a "fair" prognosis.
(Id.) Dr. Revan also stated that, in her opinion, Plaintiff had mild limitations with gross motor

activity in the upper extremities due to pain; mild limitations walking distances, climbing stairs
and lying down due to shortness of breath; and mild limitations in daily living activities due to
hand pain. (Id.)

18

Ambien is the brand name for Zolpidem, a mediation used to treat insomnia.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a693025.html (last visited Jan. 23, 2015).
19

Dr. Revan also noted that Plaintiff was taking Ventolin (the brand name for Albuterol
Oral Inhaler), which is used to prevent and treat wheezing, shortness of breath, coughing, and
chest tightness caused by lung diseases such as asthma and chronic obstructive pulmonary
disease. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682145.html (last visited Jan. 23,
2015.)
12

Case 1:13-cv-01264-CM-DCF Document 18 Filed 01/26/15 Page 13 of 49

c.

Mental RFC Assessment
(July 16, 2010, by Psychologist V. Reddy)

Dr. V. Reddy, apparently a consulting psychologist, 20 completed a Mental Residual
Functional Capacity ("RFC") Assessment of Plaintiff on July 16, 2010, and found that Plaintiff
was "Moderately Limited" in the following categories: "ability to understand and remember
detailed instructions," "ability to carry out detailed instructions," "ability to maintain attention
and concentration for extended periods," and "ability to complete a normal workday without
interruptions from psychologically based symptoms and to perform at a consistent pace." (Id.
at 309-10.) Dr. Reddy found Plaintiff was "Not Significantly Limited" in each of the remaining
categories considered. (See id at 309-10.) Dr. Reddy specifically noted that the "treating source
did not provide a work related statement" 21 and concluded that Plaintiff appeared "capable of the
basic functional requirements of unskilled work in a low stress environment." (Id at 311.) On
the same date, Dr. Reddy filled out a "Psychiatric Review Technique" Form and opined that
Plaintiff did not meet or medically equal the listings for Schizophrenic, Paranoid and other
Psychotic Disorders (12.03), or Affective Disorders (12.04). (See id. at 344-45). Dr. Reddy
found that Plaintiff had only "mild" limitations in her activities of daily living and social

20

The record contains no indication of V. Reddy's full name or qualifications. Although
Plaintiff suggests that this examiner did not actually possess the necessary medical qualifications
to perform an assessment (see Plaintitrs Memorandum of Law in Support of Motion for
Judgment on the Pleadings, dated Mar. 17, 2014 (Dkt. 12), at 5), Defendant points out that the
"Disability Determination and Transmittal Form" refers to this examiner as having a Ph.D. (See
Memorandum of Law in Support of Defendant's Cross-Motion for Judgment on the Pleadings
and in Opposition to Plaintiffs Motion for Judgment on the Pleadings, dated May 23, 2014
(Dkt. 16), at 18 (citing to R. at 62).) Additionally, the ALJ referred to Dr. Reddy as a "clinical
psychologist for the State Agency." (R. at 23.)
21

It appears that Dr. Ghumman provided a work-related statement later, on May 14,
2011. (See R. at 371-75.)
13

Case 1:13-cv-01264-CM-DCF Document 18 Filed 01/26/15 Page 14 of 49

functioning (id. at 344), that she had "moderate limitations" in maintaining concentration,
persistence or pace (id.), and that she had experienced "one or two" episodes of decompensation
(id.).

B.

Plaintiffs Statements Regarding Her Claimed Impairments,
Made in Connection with Her Application for Benefits

At or about the time that she filed her application for SSI, Plaintiff provided certain
reports to the Social Security Administration, in which she described her claimed impairments
and provided other information relevant to her claims.
1.

Disability Report

On April 28, 20 I 0, the day she filed her application, Plaintiff completed a form
"Disability Report" (see id. at 186-94), in which she reported that she was "bipolar with
psychotic features," that she had PTSD (post-traumatic stress disorder), and she had cocaine and
alcohol dependence issues. (Id. at 187.) Plaintiff also stated that she had stopped working in
April of 2009, when she was "fired due to detoxing on methadone and [because] [she] was
hearing voices." (Id. at 188.)
Plaintiff further reported that her highest grade of education was the I 0th grade. (Id.)
She stated that, in her past work, she had been a home health aide for an elderly client, a job she
maintained from 2007 through 2009. (Id. at 189.) Plaintiff also reported that she could "handle
large objects," that she could "write, type or handle small objects" for up to one hour, and that
she could "reach" for up to two hours. (Id. at 190.) Plaintiff recorded that she was taking
Seroquel (see supra n.9) and Zoloft (see supra n.10). (R. at 190.)

2.

Work History and Function Reports

Also in connection with her SSI application, Plaintiff filled out, on June 1, 2010, both a
form "Work History Report" (id. at 195-98) and a form "Function Report" (id. at 200-11 ).
14

Case 1:13-cv-01264-CM-DCF Document 18 Filed 01/26/15 Page 15 of 49

In terms of her work history, Plaintiff noted that, although she did not remember any
specific dates (see id. at 198), she had previously worked as a home health aide, as well as in
park and recreation maintenance, as a messenger, in a factory, and in a clerical position (id.
at 195-96).
As to her current ability to function, Plaintiff reported that she lived alone in an apartment
and that her normal day consisted of "shower[ing], dress[ing] [and attending] program." (Id.
at 200-01.) Plaintiff further reported that, because of her impairments, she was no longer able to
"read, concentrate, be around multiple ... people, ... [or] listen to music." (Id. at 201.) She
also indicated that her impairments affected her sleep (id.), and that, while she did not have
problems with personal care, she needed reminders to take care of her personal needs and to take
medicine (id. at 201-02). Plaintiff indicated that she prepared her own meals and that she could
do household cleaning and laundry without assistance. (See id. at 202-03.) She stated, though,
that she only went out to go to her "program" and that she sometimes felt paranoia when she
when out. (Id. at 203.) Plaintiff reported that she watched television and called her mother once
per week, but that she did not participate in any social activities. (Id. at 204-05.) Plaintiff
checked "yes" in response to a question asking whether she had "any problems getting along
with family, friends, neighbors, or others." (Id. at 205.)
Plaintiff additionally reported hearing voices (id. at 205) and problems paying attention
(id. at 206), and she checked both "yes" and "no" for the questions "can you finish what you

start" and "have you any problems getting along with ... people in authority" (id.). She
reported that she had lost a job because of not getting along with people, and that she had trouble
remembering things. (Id. at 207.)

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As to her physical impairments, Plaintiff indicated on the form that she could only walk a
block or two before she had to rest for five to l 0 minutes. (Id. at 206.) She also reported that
she had first felt pain in July of 2009, in her hands and sometimes her feet. (Id. at 208.) She
noted that X-rays had been taken, and she described the pain as "tingling." (Id.) She also
reported that she took medication for this pain, and that the medication relieved the pain for a
"short time." (Id. at 209.)

C.

Procedural History
1.

Plaintiffs SSI Application

On April 28, 2010, Plaintiff filed an application for SSI, alleging disability as of that
same day. (Id. at 161-67.) The claim was denied on July 19, 2010 (id. at 63-68), and, on
August 2, 2010, Plaintiff filed a request for a hearing (id. at 69-71 ). Plaintiff appeared for the
hearing on December 8, 2010 (id. at 56), but it was adjourned so that Plaintiff could obtain legal
representation (id. at 58-61 ). A second hearing date was scheduled for May 18, 2011. (Id.
at 33.)

2.

Administrative Hearing And Decision

On May 18, 2011, Plaintiff, represented by attorney Daniel Berger, appeared and testified
before the ALJ. Plaintiff testified that she was unable to work for a variety of reasons, including
that she heard voices and suffered from arthritis in her hands. (See id. at 36, 41.)
Plaintiff testified that she began hearing voices about two years prior to the hearing,
while attempting to detox from methadone. (Id. at 39-40.) She stated that she participated in a
mental health program and had not used any illegal substances since 2009. (Id. at 40.) Plaintiff
testified that that she could not work because she was scared she "might hurt somebody" or hurt
herself. (Id. at 37; see also id. at 44.) As an example, she stated that, sometime in 2010, she had

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turned on the gas in her apartment and burned her arms; when asked by the ALJ why she did
this, her response was "the voices." (Id. at 38; see also id. at 45.) Plaintiff reported hearing
voices during the hearing itself and stated that the voices did not want her to be there and were
trying to make her leave. (Id. at 38-39.) Plaintiff testified that, sometime in 2009, she had
checked herself into a psychiatric unit because of the voices. (Id. at 39.) She also stated that, at
the time of the hearing, she had been under the care of a psychiatrist, Dr. Ghumman, for almost a
year. (Id. at 41.)
Plaintiff also testified to certain physical ailments. She described experiencing back pain
and difficulty walking. (Id. at 41.) She also stated that her bones bothered her and that she had
arthritis in her hands. (Id.) Finally, she testified that she needed help with certain daily chores
and activities, such as preparing meals, doing laundry, lifting or opening anything, mopping,
cleaning, and food shopping, because her hands sometimes went numb and "g[a]ve out" on her.

(See id. at 41, 44.)
Plaintiff stated that, at the time of the hearing, she was living alone in a studio apartment
in the Bronx, receiving public assistance in the amount of $200.00 per month and paying rent
with her unemployment benefits. (See id. at 36, 41.) Plaintiff also stated that she did not like to
go out and that she had lost interest in many things she used to enjoy, such as reading and
watching movies. (See id. at 42-43.) Plaintiff testified that she had trouble focusing while
watching television because of the voices in her head. (Id. at 45.) She also reported trouble
sleeping, remembering to take her medication, and bathing on some days. (Id. at 44-45.)
With regard to her previous employment, Plaintiff testified that she was terminated from
her most recent job as a home health aide because her employer received complaints about "what
[she] was doing in people['s] houses." (Id. at 43.) When asked ifthe complaints were based on

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Plaintitrs failure to perform her duties, she replied "yes." (Id. at 44.) According to Plaintiff,
because she was hearing voices, she did not do "what [she] was supposed to be doing inside
people['s] homes. (Id. at 43.) She said she did not realize that she had been doing her job
incorrectly, and did not believe that she could do it correctly at the time of the hearing, largely
out of fear that she might hurt somebody. (Id.) As for future employment prospects, Plaintiff
stated that she was working with her psychiatrist and could possibly return to work at a later
date, but that she was scared and not fit to work at that time. (Id.)
A vocational expert, David Sypher (the "VE"), also appeared telephonically and testified.

(See id. at 46-51.) The VE testified that Plaintiffs previous work as a "home attendant" would
no longer be suitable for her. (Id. at 46-47.) He also testified, however, that Plaintiff would be
capable of performing certain sedentary, unskilled jobs. (See id. at 47.) He listed two in
particular: electrical assembler and final assembler. (Id.) He further testified that that there was
a national employment of 38,689 electrical assemblers, with 1,974 in the state of New York
and 211 in the five boroughs ofNew York City. (Id.) As for final assembler jobs, he testified
that there were 28,554 in the national economy, 1,256 in the state of New York, and 783 in New
YorkCity. (Id.)
On June 24, 2011, the ALJ issued a decision finding that Plaintiff was not entitled to
benefits, because she was not disabled under the Act. (See generally id. at 14-26.) The ALJ's
decision is discussed in detail below. (See infra, at Discussion Section II.)

3.

Plaintifrs Request for Review by the Appeals Council

On July 12, 2011, Plaintiff requested that the Appeals Council review the ALJ's decision.
(Id. at 31-32.) Seven months later, in further support of this request, Plaintiff, though counsel,

submitted a letter to the Appeals Council, laying out detailed factual and legal arguments as to

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why reversal of the ALJ's decision or, alternatively, remand was required. (See id. at 4-5; see
also id. at 229-33 (Letter from Daniel Berger, Esq. to Appeals Council, dated Feb. 12, 2010).)
On January 30, 2013, the Appeals Council denied Plaintiffs request for review. (Id.
at 1-6.) The notice of denial of review stated, without explanation, that the Appeals Council had
"considered the reasons [Plaintiff] disagree[d] with the decision and the additional evidence" that
she had submitted, but that it "found no reason ... to review the [ALJ's] decision." (Id. at 1.) 22
The ALJ's decision thus became the final decision of the Commissioner.

4.

The Motions Before This Court

On February 25, 2013, Plaintiff filed the Complaint in this action, seeking review of the
Commissioner's decision. (See generally Complaint, dated Feb. 25, 2013 (Dkt. 2).) Defendant
answered the Complaint on July 15, 2013. (See generally Answer, dated Jul. 15, 2013 (Dkt. 8).)
Currently pending before this Court are Plaintiffs motion and Defendant's cross-motion
for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Plaintiff argues that the Commissioner's decision should be reversed or remanded because the
ALJ and the Appeals Council failed to accord controlling weight to the opinion of Plaintiffs
treating psychiatrist. (See generally Plaintiffs Memorandum of Law in Support of Motion for
Judgment on the Pleadings, dated Mar. 17, 2014 ("Pl. Mem.") (Dkt. 13).) Defendant argues that
the final decision of the Commissioner must be upheld because the ALJ applied the correct legal
standards and his decision was supported by substantial evidence. (See generally Memorandum
of Law in Support of Defendant's Cross-Motion for Judgment on the Pleadings and in

22

The Record does not reflect that Plaintiff actually submitted any "additional evidence"
to the Appeals Council, subsequent to the ALJ's ruling.
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Opposition to Plaintiffs Motion for Judgment on the Pleadings, dated May 23, 2014
("Def. Mem.") (Dkt. 17).)

DISCUSSION
I.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review

Judgment on the pleadings under Rule 12(c) is appropriate where "the movant establishes
'that no material issue of fact remains to be resolved,'" Guzman v. Astrue, No. 09cv3928 (PKC),
2011 WL 666194, at *6 (S.D.N.Y. Feb. 4, 2011) (quoting Juster Assocs. v. City of Rutland, 901
F.2d 266, 269 (2d Cir. 1990)), and ajudgment on the merits can be made '"merely by
considering the contents of the pleadings,"' id. (quoting Sellers v. MC Floor Crafters, Inc.,
842 F.2d 639, 642 (2d Cir. 1988)).
Judicial review of the Commissioner's decision is limited. The Commissioner's decision
is final, provided that the correct legal standards are applied and findings of fact are supported by
substantial evidence. 42 U.S.C. § 405(g) (2006); Shaw v. Carter, 221F.3d126, 131 (2d Cir.
2000) (citations omitted). "Where an error of law has been made that might have affected the
disposition of the case, [a] court cannot fulfill its statutory and constitutional duty to review the
decision of the administrative agency by simply deferring to the factual findings of the ALJ."

Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (citation omitted). Thus, the first step is to
ensure that the Commissioner applied the correct legal standards. See Tejada v. Apfel, 167 F.3d
770, 773 (2d Cir. 1999); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
The next step is to determine whether the Commissioner's decision is supported by
substantial evidence. See Tejada, 167 F.3d at 773. Substantial evidence "means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v.

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Perales, 402 U.S. 389, 40 l ( 1971) (internal citation and quotation marks omitted). In making
this determination, a court must consider the underlying record. The reviewing court does not,
however, decide de novo whether a claimant is disabled. See Veino v. Barnhart, 312 F.3d
578, 586 (2d Cir. 2002) ("Where the Commissioner's decision rests on adequate findings
supported by evidence having rational probative force, we will not substitute our judgment for
that of the Commissioner."); Schaal v. Apfel, 134 F.3d 496, 50 I (2d Cir. 1998); Beauvoir v.

Chafer, 104 F.3d 1432, 1433 (2d Cir. 1997). Therefore, ifthe correct legal principles have been
applied, this Court must uphold the Commissioner's decision upon a finding of substantial
evidence, even where contrary evidence exists. See Alston v. Sullivan, 904 F.2d 122, 126
(2d Cir. 1990) ("Where there is substantial evidence to support either position, the determination
is one to be made by the factfinder."); see also DeChirico v. Callahan, 134 F.3d 1177, 1182-83
(2d Cir. 1998) (affirming decision where substantial evidence supported both sides).

B.

The Five-Step Sequential Evaluation

To be entitled to disability benefits under the Act, a plaintiff must establish his or her
"inability 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 12 months." 42 U.S.C.

§ 423(d)(l)(A); Balsamo v. Chafer, 142 F.3d 75, 79 (2d Cir. 1998). An individual is considered
to be under a disability only ifthe individual's physical or mental impairments are of such
severity that he or she is not only unable to do his or her previous work, but also cannot,

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considering his or her age, education, and work experience, engage in any other kind of
substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
In evaluating a disability claim, an ALJ must follow the five-step procedure set out in
the regulations governing the administration of Social Security benefits. See 20 C.F.R.

§ 416.920; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). Throughout the
inquiry, the ALJ must consider four primary sources of evidence: "(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." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (citations omitted).
The first step of the inquiry requires the ALJ to determine whether the claimant is
engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). If not, at the second step,
the ALJ determines whether the claimant has a "severe" impairment or combination of
impairments that significantly limit his or her physical or mental ability to do basic work
activities. Id. §§ 416.920(a)(4)(ii), (c). If the claimant does suffer from such an impairment,
then the third step requires the ALJ to determine whether this impairment meets or equals an
impairment listed 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listings"). Id.§ 416.920(a)(4)(iii).

If it does, then the claimant is presumed to be disabled "without considering [the claimant's] age,
education, and work experience." Id.
Where the plaintiff claims mental impairment, steps two and three require the ALJ to
apply a "special technique," outlined in 20 C.F.R. § 416.920a to determine the severity of the
claimant's impairment at step two, and to determine whether the impairment satisfies Social
Security regulations at step three. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). If the
claimant is found to have a "medically determinable mental impairment," the ALJ is required to

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"specify the symptoms, signs, and laboratory findings that substantiate the presence of the
impairment(s)" and then to "rate the degree of functional limitation resulting from the
impairment(s) in accordance with paragraph (c) of [section 4 l 6.920a]," which specifies four
broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration,
persistence or pace; and (4) episodes of decompensation." 23 20 C.F.R. §§ 416.920a(b)(2), (c)(3);

see Kohler, 546 F.3d at 265. The functional limitations for these first three areas are rated on a
five-point scale of "[n]one, mild, moderate, marked, [or] extreme," and the limitation in the
fourth area (episodes of decompensation) is rated on a four-point scale of "[n]one," "one or two,"
"three," or "four or more." 20 C.F.R. § 416.920a(c)(4).
If the claimant's impairment does not meet or equal a listed impairment, then the ALJ
must determine, based on all the relevant evidence in the record, the claimant's RFC, or residual
functional capacity to perform physical and mental work activities on a sustained basis. Id.

§ 416.945. The ALJ then proceeds to the fourth step of the inquiry, which requires the ALJ to
determine whether the claimant's RFC allows the claimant to perform his or her "past relevant
work." Id. § 416.920(a)(4)(iv). Finally, ifthe claimant is unable to perform his or her past
relevant work, then the fifth step requires the ALJ to determine whether, in light the claimant's
RFC, age, education, and work experience, the claimant is capable of performing "any other
work" that exists in the national economy. Id. §§ 416.920(a)(4)(v), (g).

23

"Episodes of decompensation are exacerbations or temporary increases in symptoms
or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in
performing activities of daily living, maintaining social relationships, or maintaining
concentration, persistence, or pace." Morales v. Colvin, No. 13cv4302 (SAS), 2014
WL 7336893, at *8 (S.D.N.Y. Dec. 24, 2014) (quoting Kohler v. Astrue, 546 F.3d 260, 266 n.5
(2d Cir. 2008)).

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On the first four steps of the five-step evaluation, the claimant generally bears the burden
of establishing facts to support his or her claim. See Berry, 675 F .2d at 467 (internal citation
omitted). At the fifth step, the burden shifts to the Commissioner to "show that there is work in
the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306
(2d Cir. 2009); see also Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir. 1984). The
Commissioner must establish that the alternative work "exists in significant numbers" in the
national economy and that the claimant can perform this work, given her RFC and vocational
factors. 20 C.F.R. § 416.960(c)(2).
Where the claimant suffers only from exertional impairments, the Commissioner may
satisfy this burden by referring to the Medical-Vocational Guidelines set out in 20 C.F.R.
Pt. 404, Subpt. P, App. 2 (2008). Where, however, the claimant suffers non-exertional
impairments (such as psychiatric impairments), see 20 C.F.R. § 416.929a(c), that "'significantly
limit the range of work permitted by his [or her] exertional limitations,' the ALJ is required to
consult with a vocational expert," rather than relying exclusively on the published guidelines.

Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d 601,
604-05 (2d Cir. 1986) (internal citations omitted)). To be reliable, the vocational expert's
assessment of a claimant's ability to work must incorporate the full extent of the claimant's
limitations and capabilities. See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981); see also

Lugo v. Chater, 932 F. Supp. 497, 504 (S.D.N.Y. 1996). Assuming the claimant's limitations are
fully incorporated into the vocational expert's analysis, the Commissioner may rely on the
vocational expert's testimony to demonstrate that a sufficient number of jobs exist in the national
economy which the claimant is capable of performing. See Bapp, 802 F .2d at 605-06; see also

Perez v. Colvin, No. 12cv53 J7, 2013 WL 5350566, at *7 (E.D.N.Y Sept. 23, 2013) ("It is

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standard practice for the Commissioner to use vocational expert testimony to satisfy his burden
of showing that there exist jobs that the claimant is capable of performing, and the ALJ may rely
on the testimony of such an expert, including responses to hypotheticals.")

C.

Duty to Develop Record

Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ
generally has an affirmative duty to develop the administrative record, Perez v. Chater,
77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Sec'y of Health & Human Servs., 685 F.2d
751, 755 (2d Cir. 1982)), and failure to develop the record may be grounds for remand, Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir. 1999). The SSA regulations describe this duty as: "[b]efore
we make a determination that you are not disabled, we will develop your complete medical
history ... [and] will make every reasonable effort to help you get medical reports from your
own medical sources when you give us permission to request the reports." 20 C.F.R.
§ 416.912(d). "Every reasonable effort" is, in tum, defined to mean that the SSA "will make an
initial request for evidence from your medical source and, at any time between 10 and 20
calendar days after the initial request, if the evidence has not been received, we will make one
follow up request to obtain the medical evidence necessary to make a determination." Id.
§ 416.912(d)(l). The regulations further explain that "[b]y 'complete medical history,' we [the
SSA] mean the records of your medical source(s)." Id.§ 416.912(d)(2).
Additionally, ifthe information obtained from the medical sources is insufficient to make
a disability determination, or if the Commissioner is unable to seek clarification from treating
sources, the regulations provide that the Commissioner should ask the claimant to attend one or
more consultative evaluations. 20 C.F.R. §§ 416.912(e), 416.917. Finally, "[i)fan ALJ
perceives inconsistencies in a treating physician's reports, the ALJ bears an affirmative duty to

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seek out more information from the treating physician and to develop the administrative record
accordingly." Hartnett v. Apfel, 21 F. Supp. 2d 217, 221 (E.D.N.Y. 1998) (citing Clark v.
Commissioner ofSocial Sec., 143 F.3d 115, 118 (2d Cir.1998)).
D.

The Treating Physician Rule

The medical opinion of a treating source 24 as to ''the nature and severity of [the
claimant's] impairments" is entitled to "controlling weight," where the opinion is "wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in [the] case record." 20 C.F.R. § 416.927(c)(2).
Treating physicians' opinions are generally accorded deference because treating physicians "are
likely to be the medical professionals most able to provide a detailed, longitudinal picture" of a
claimant's condition and "bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual examinations,
such as consultative examinations." 20 C.F.R. § 416.927(c); see Taylorv. Barnhart, 117 F.
App'x 139, 140 (2d Cir. 2004).
Where the ALJ decides to give less than controlling weight to a treating physician's
opinion, and also in determining the weight to be accorded to the medical opinion of a nontreating physician, the ALJ is required to consider a number of factors. These include: ( 1) the
length, nature, and extent of the relationship between the claimant and the physician; (2) the
supportability of the physician's opinion; (3) the consistency of the physician's opinion with the

24

"[T]reating source" is defined as the claimant's "own physician, psychologist, or other
acceptable medical source who ... has provided [the claimant] with medical treatment or
evaluation" and who has had "an ongoing treatment relationship" with him or her. 20 C.F .R.
§ 416. 902. A medical source who has treated or evaluated the claimant "only a few times" may
be considered a treating source "if the nature and frequency of the treatment or evaluation is
typical for [the claimant's] condition(s)." Id.
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record as a whole; and (4) the specialization of the physician providing the opinion. 20 C.F.R.

§§ 416.927(c)(2)-(5); see also Shaw v. Chater, 221F.3d126, 134 (2d Cir. 2000) (noting that
these factors "must be considered when the treating physician's opinion is not given controlling
weight").
An ALJ must "give good reasons" for the weight accorded to a treating source's opinion.
20 C.F.R. § 416.927(c)(2). Failure to "give good reasons" is grounds for remand. Halloran v.

Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) ("We do not hesitate to remand when the
Commissioner has not provided 'good reasons' for the weight given to a treating physician's
opinion ...."). In addition, a consultative physician's opinions should generally be given "little
weight." Giddings v. Astrue, 333 F. App'x 649, 652 (2d Cir. 2009) (internal quotation marks and
citation omitted). This is because consultative examinations "are often brief, are generally
performed without benefit or review of [the] claimant's medical history, and, at best, only give a
glimpse of the claimant on a single day." Cruz v. Sullivan, 912 F .2d 8, 13 (2d Cir. 1990)
(internal quotation and citation omitted).)

II.

THE ALJ'S DECISION
In the instant case, after reviewing the evidence under the five-step procedure, the ALJ

concluded that Plaintiff was not disabled. (See generally R. at 14-30.)

A.

Step One

At step one of the inquiry, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since April 28, 2010, the date of Plaintiffs application. (Id. at 19.)

B.

Step Two

At step two of the analysis, the ALJ found that Plaintiff had two severe impairments:
( 1) hand pain with numbness, and (2) major depressive disorder with psychotic features. (Id.)

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The ALJ found that such impairments imposed "more than minimal functional limitations on
[Plaintiffs] ability to perform basic work-related activities." (Id.)

C.

Step Three

Next, at step three, the ALJ concluded that none of Plaintiffs conditions met or
medically equaled any impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (Id.)
First, the ALJ found that Plaintiffs hand impairment did not meet or medically equal the
listings for musculoskeletal and neurological impairments (i.e., listings 1.00 and 11.00) because
"there [were] no objective findings to support [Plaintiffs] allegations of severe hands pain."
(Id.)

Second, the ALJ concluded that Plaintiffs psychological impairments did not meet or
equal the listing for affective disorders (i.e., Listing 12.04). 25 As part of that finding, the ALJ

25

A claimant meets the listing for affective disorders where he or she meets both the
"paragraph A" and "paragraph B" criteria, or meets the "paragraph C" criteria.
To meet the "paragraph A" criteria, a claimant would need to demonstrate "medically
documented persistence," of either "depressive syndrome" (characterized by at least four of nine
listed symptoms including, for example, sleep disturbance, decreased energy, thoughts of
suicide, and hallucinations), "manic syndrome" (characterized by at least three of eight listed
symptoms, including, for example, hyperactivity, flight of ideas, and easy distractibility), or
"bipolar syndrome" (manifested by the "full symptomatic picture" of both manic and depressive
syndromes).
To meet the "paragraph B" criteria, a claimant would need to demonstrate 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; and (4) repeated episodes of decompensation, each of extended duration.
To meet the "paragraph C" criteria, a claimant would need to demonstrate ( 1) a medically
documented history of chronic affective disorder of at least two years' duration causing more
than a minimal limitation of ability to do basic work activities, with symptoms or signs currently
attenuated by medication or psychosocial support, and (2) one of the following: (a) repeated
episodes of decompensation, each of extended duration; or (b) a residual disease process that has
resulted in such marginal adjustment that even a minimal increase in mental demands or a
change in the environment would be predicted to cause the individual to decompensate; or (3)
current history of one or more years' inability to function outside a highly supportive living
arrangement, with an indication of continued need for such an arrangement.

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determined that Plaintiffs impairment did not satisfy the paragraph B criteria (see n.25, supra),
in part because he found her to have only "moderate restriction[s]" with activities of daily living
(R. at 20 (noting that Plaintiff took care of her own personal hygiene, performed "some cleaning,

cooking, laundry, and shopping," attended her treatment program, watched television, and
performed some chores)). In support of this finding, the ALJ cited to the Function Report that
Plaintiff filled out in connection with her application for SSI and the consultative examinations
of Dr. Schreiber and Dr. Revan. (See id.) He also found that Plaintiff had only "moderate
difficulties" with social functioning as, even though she lived alone, Plaintiff had regular visits
from her fiance. (Id.) On a related point, the ALJ concluded that Plaintiff "ha[d] no documented
pattern of maladaptive behavior and related well with her fiance." (Id.) The ALJ further found
that Plaintiff had only moderate difficulties with concentration, persistence and pace, even
though Dr. Schreiber reported that Plaintiff exhibited "fair recent and remote memory" and
"borderline intellectual functioning," as Dr. Schreiber also found that Plaintiff was "oriented in
all spheres with intact attention and concentration." (Id.) The ALJ also noted that Plaintiff had
been able to travel alone via public transportation to the appointment with Dr. Schreiber. (Id.)
Finally, as to the paragraph B criteria, the ALJ found that Plaintiff had not experienced any
"episodes of decompensation of an extended duration," noting that, since the alleged onset date,
Plaintiff had not been hospitalized as a result of her depressive disorder. (Id.)
The ALJ next determined that "the evidence fail[ed] to establish the presence of
'paragraph C' criteria." (Id.; see n.25, supra.) The ALJ did not, however, reference any
evidence to support this finding; instead he merely went through the associated factors and stated
that they were not present here. (Id.)

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D.

RFC Analysis, and Step Four

Before proceeding to Step Four, the ALJ made a determination of Plaintiffs RFC,
finding:
[Plaintiff] has the residual functional capacity to perform light
work as defined in 20 CFR 416.967(b) with maximum of frequent
use of hands, from the physical standpoint. [Plaintiff] can perform
simple repetitive tasks, with no contact with the public and
occasional contact with supervisors and co-workers, from the
mental standpoint.
(Id. at 21.) The ALJ stated that, in making this RFC finding, he had considered all of Plaintiffs

symptoms, as well as the extent to which those symptoms could "reasonably be accepted as
consistent with the objective medical evidence and other evidence." (Id.) Further, the ALJ
stated that, in considering Plaintiffs symptoms, he had followed the necessary "two-step
process" of, first, determining whether Plaintiff had any "underlying medically determinable
physical or mental impairment[] ... that could cause reasonably be expected to produce [her]
pain or other symptoms," and, if so, then proceeding to evaluate Plaintiffs symptoms to
determine the "extent to which they limit[ed] [her] functioning." (Id.) The ALJ noted that,
"[f]or this purpose, whenever statements about the intensity, persistence, or functionally limiting
effects of pain or other symptoms [were] not substantiated by objective medical evidence," he
was required to "make a finding on the credibility of the statements based on a consideration of
the entire case record." (Id.)
In explaining his RFC finding, the ALJ began by noting Plaintiffs own reported
symptoms, acknowledging that Plaintiff alleged "hand pain and numbness," "sleep disturbances,
sadness, tension, and crying spells that interfere[d] with her concentration and with her ability to
work." (Id.) The ALJ found that Plaintiffs medical impairments "could reasonably be expected
to cause the alleged symptoms," but also found that Plaintiffs statements regarding the
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"intensity, persistence and limiting effects of these symptoms [were] not credible to the extent
they [were] inconsistent with the ... residual functional capacity assessment." (Id.)
The ALJ then went on to catalog a fair amount of the medical evidence in the record,
referencing (although not immediately discussing), each of the following:
•

Plaintiffs January 13, 2009 physical examination, upon which she "only
received [a] diagnosis of alopecia areata" (see n. l, supra), and her March 23,
2010 hospital visit, upon which she received a diagnosis of "paresthesia," in
both hands, but reflected "no sensory or motor deficits," normal deep tendon
reflexes, and "full range of motion in all of her joints" (id. at 21.)

•

Plaintiffs April 21, 2010 follow-up examination by Dr. Morris, when Plaintiff
complained of numbness and tingling in her hands, but Dr. Morris reported,
after tests, that she was doing better with Nabumetone, indicating that her
hand discomfort was due to inflammation (id. at 22); and Plaintiffs report, on
June 7, 2010, that the medication was helping to ease the pain in her hands
and did not result in side effects (id.).

•

The June 30, 2010 consultative, internal medicine examination by Dr. Revan,
upon which Dr. Revan recorded Plaintiffs complaints of eye problems,
hypothyroidism, bronchitis, shortness of breath, hand pain, and muscle
movements (id. at 22); made observations that, inter alia, Plaintiff did not
appear to be in acute distress, did not use an assistive device, and was able to
rise from a chair without difficulty (id.); and found that Plaintiff "had mild
limitations for gross motor activity due to pain, mild limitations for walking
distances, climbing stairs and lying down due to shortness of breath, and mild
limitations in activities [of] daily living due to hands pain" (id). 26

•

Plaintiffs July 2009 hospital admission for "substance induced mood
disorder/psychotic disorder, methadone maintenance, alcohol dependence and
cocaine abuse" (id. at 22), at which time Plaintiff was described as having
"passive suicidal ideations," "auditory hallucinations," and "vague paranoid
ideation," and as being "coherent with poor judgment and impaired
reliability" (id.); Plaintiffs emergency room visit in August 2009, for
"threatening behavior" (id); and certain other of Plaintiffs hospital visits,
including visits for drug screening tests, which were negative, and a March
2010 visit where Plaintiff complained of depression and hearing voices (id.)

26

As to Dr. Revan's findings, the ALJ noted that "the medical evidence lack[ed]
information about [Plaintiffs] allegation of diagnosis of bronchitis with shortness of breath and
hypothyroidism." (Id.)
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•

The June 1, 2010 consultative, psychiatric evaluation by Dr. Schreiber,
recording, inter alia, Dr. Schreiber's comments as to how Plaintiff had been
able to travel on her own, for approximately 12 miles, for the appointment (id.
at 23); Dr. Schreiber's notes of Plaintiffs reported symptoms, and her
observations of her mood and affect (id.), certain of Dr. Schreiber's findings,
such as her findings that Plaintiff showed "thought process [that] was coherent
and goal directed with no evidence of hallucinations, delusions or paranoia";
had "fair" recent and remote memory skills, but "intact" attention and
concentration; "appeared to be of borderline intellectual functioning with a
slightly limited general fund of information"; and had "fair" insight and
judgment" (id.); Dr. Schreiber's conclusion that Plaintiff "was capable of
following, understanding, remembering and performing simple instructions
and direction and learning new tasks," although "she might have some
difficulty relating and interacting appropriately with others and dealing with
stress" (id. at 23); and Dr. Schreiber's diagnosis of "schizoaffective disorder,
bipolar disorder not otherwise specified, polysubstance dependence, in fullsustained remission[,] and history of methadone treatment." (Id.)

•

Plaintiffs psychiatric treatment history at Montefiore Behavioral Care with
Dr. Ghumman, including: her initial visit on August l 0, 2010, when
Dr. Ghumman diagnosed her with "major depressive disorder with psychotic
features and rule-out schizoaffective disorder" and gave her a GAF score
of 50 (id.); Dr. Ghumman's report of December 28, 2010, that Plaintiff"had
depressive mood swings, psychosis (hearing voices and feeling paranoid),
sleep disturbances, [and] difficulty to focus and concentrate," was "relatively
and clinically stable with treatment" with "on and off exacerbations," and had
a GAF score of 55 (id); Dr. Ghumman's report of May 14, 2011 that Plaintiff
experienced "mood swings, anger, hallucinations, sleeping difficulty, and
focusing and concentrating difficulties affecting her borderline functional
level," and that any stress could deteriorate Plaintiffs clinical condition (id.),
and Dr. Ghumman's last treatment note of December 28, 2010, "at which time
he reported improvement in [Plaintiffs] mental condition" (id.).

The ALJ also referenced the mental assessment conducted by Dr. Reddy (whom he
identified as a "clinical psychologist from the State Agency) (id.), stating that he was granting
that assessment "great weight" because it agreed with the ALJ's own RFC assessment that
Plaintiff "could perform simple repetitive tasks consistent with unskilled work" (id.). The ALJ
stated, however, that he found Plaintiff to have "moderate restrictions in activities of daily living,
moderate difficulties in maintaining social functioning[,] and moderate difficulties in

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maintaining concentration, persistence and pace, without episodes of decompensation of
extended duration." (Id.)
Finally, in summarizing how he reached his RFC determination, the ALJ stated that his
assessment was "supported by the medical evidence," which, he found, reflected no objective
findings to support Plaintiffs allegations of pain in her hands. (Id. at 24.) In this regard, he
cited "unremarkable results" of X-rays of Plaintiffs hands, a reported grip strength of four out of
five, and a finding that Plaintiff had full range of motion in her upper extremities. (Id.) He also
cited evidence that Plaintiff lived independently, took care of her own personal hygiene,
performed household chores, and could travel unaccompanied. (Id.) With respect to Plaintiffs
mental impairment, the ALJ relied on the fact that, even though Dr. Schreiber's psychiatric
evaluation had reported depressive mood, memory issues, and "borderline intellectual
functioning," Plaintiff was found to be "coherent, oriented in all spheres, and with intact
attention and concentration." (Id.) The ALJ also relied on Dr. Ghumman's report of"stable
condition with the treatment and improvement in her global assessment of functioning from 50
to 55." (Id.)
In general, the ALJ concluded that, according to the medical evidence, Plaintiff was
"alert, coherent with goal directed thought[] process[,] and oriented in all spheres" (id.), and that,
although her "cognitive functioning was somewhat below average due to the limited general
fund of information," she was "able to meet the basic mental demands of simple, unskilled work
on a sustained basis despite the limitations resulting from her impairment" (id.) In sum, the ALJ
found that Plaintiff had the capacity to do "routine work not requiring close interaction with
others." (Id.)

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At step four, the ALJ relied on the testimony of the VE to determine that, based on
Plaintiffs RFC, she was unable to perform any past relevant work (as a "home attendant"). (Id.)

E.

Step Five

At the fifth and final step, the ALJ once again relied, in part, on the testimony of the VE.
(Id. at 25.) Here, he found that in light of the Plaintiffs age, education, work experience, and

RFC, there were jobs that existed in significant numbers in the national economy that the
plaintiff was capable of performing. (Id.) Specifically, he reiterated the VE's opinion that
someone with Plaintiffs RFC could perform the jobs of electrical assembler and final assembler,
both of which were either light or sedentary unskilled jobs. (Id.) Finally, he found that the VE's
testimony was consistent with information contained in the Dictionary of Occupational Titles
("DOT"), and concluded that Plaintiff was "capable of making a successful adjustment to other
work that exist[ed] in significant numbers in the national economy." (Id.)
Accordingly, the ALJ concluded that Plaintiff was not disabled, as defined by the Act.
(Id.)

III.

REVIEW OF THE ALJ'S DECISION
Given that the ALJ followed the five-step procedure set forth in the Social Security

regulations, this Court's review is limited to determining whether the ALJ correctly applied the
relevant legal principles, and whether his decision was supported by substantial evidence.

A.

Adequacy of the ALJ's Determination, at Step Three, That
Plaintiffs Psychiatric Impairment Did Not Meet or Equal a Listing

As noted above, the ALJ determined, at step two of the five-step analysis, that Plaintiff
had a severe psychiatric condition, specifically "major depressive disorder with psychotic
features." (See R. at 19 .) In order to determine, at step three, whether this condition met or
equaled the pertinent listing for affective disorders (see n.25, supra), the ALJ was required, with
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sufficient specificity, to determine the severity of Plaintiff mental impairment with reference to
the criteria of that listing (see id.). As to Plaintiffs level of functioning with respect to each of
the four domains referred to in the paragraph B criteria, 27 the ALJ's finding as to the degree of
Plaintiff's functional impairment ("none," "mild," "moderate," "marked," or "extreme") needed
to be supported by substantial medical evidence in the record. See 42 U.S.C. § 405(g); see also
Tavarez v. Barnhart, No. 05cv2747 (DLC), 2006 WL 997701, at *4 (S.D.N.Y. Apr. 17, 2006)

(noting that "[a]t step 3, an ALJ can deem a claimant disabled because of a mental disorder only
on the basis of '[m]edical evidence' that is 'sufficiently complete and detailed as to symptoms,
signs, and laboratory findings to permit an independent determination."') (citing to 20 C.F.R.
Part 404, Subpart P, Appendix 1, § 12.00(D).) Further, the ALJ was required to apply the
treating physician rule in making these findings, meaning that he was required to assign
controlling weight to the opinions of Plaintiffs treating doctors, or to set out, in detail, his
explanation for not assigning those opinions such weight. See 20 C.F.R. § 416.927(c)(2); Shaw,
221 F .3d at 134. In this process, the ALJ was not permitted merely to substitute his view for that
of medical experts. See, e.g. Green Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
Paragraph B of Listing 12.04 requires a finding of either two "marked" limitations in the
specified domains, or one "marked" limitation and "repeated" episodes of decompensation. (See
supra, at n.23.) With respect to certain of the identified functional domains, the ALJ did not

specifically cite to any medical evidence and did not sufficiently explain how his findings were
based on the evidence, rather than on his lay opinion. As to other domains, the ALJ appeared,
without explanation, to rely on selected portions of opinions that were less helpful to Plaintiff.

27

These four domains mirror the domains that, as a general matter, an ALJ must consider
in both a step two and step three analysis, where the claimant is alleging a mental disability. (See
supra at Section l(B) and n.25.)
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He also did not properly apply the treating physician rule and failed to make clear how much
weight he was applying to differing medical opinions.
1.

Activities of Daily Living

For his finding that Plaintiff had a "moderate restriction" in her activities of daily living,
the ALJ cited to the consultative examinations of Dr. Schreiber and Dr. Revan, and to Plaintiffs
Function Report, without describing exactly what information from each led to his finding.
(R. at 20.) He also cited the medical records and relevant reports selectively. For example, he
stated that Plaintiff "reported that she takes care of her personal hygiene and performs some
cleaning, cooking, laundry and shopping" (id.), but, while this statement was supported by
Dr. Schreiber's June l, 2010 evaluation (see id. at 306), the ALJ appears to have ignored more
negative statements from Dr. Schreiber's report, such as her finding that Plaintiff had
"psychiatric problems" which might have "significantly interfere[d] with [Plaintiffs] ability to
function on a daily basis" (id. at 307 (emphasis added)). Additionally, the ALJ's finding that
Plaintiff"spen[t] her days going to treatment program, watching television and doing some
chores" (id. at 20), appears to have come from Plaintiffs Function Report, but in the same report
Plaintiff reported that she was no longer able to "read, concentrate, [or] be around multiple ...
people" (id. at 201), and that she needed reminders to take care of her personal needs and to take
medicine (id. at 202-03). 28 Plaintiff also reported that she sometimes felt paranoia when she
went out. (Id. at 203.) It is improper for an ALJ to adopt selected portions of statements that are

28

This Court notes that the "independence" level of activities of daily living can be an
important factor in determining the limitation suffered by Plaintiff. See 20 C.F.R. Part 404,
Subpart P, Appendix 1, § 12.00(C)(l) ("We do not define "marked" by a specific number of
different activities of daily living in which functioning is impaired, but by the nature and overall
degree of interference with function. For example, if you do a wide range of activities of daily
living, we may still find that you have a marked limitation in your daily activities if you have
serious difficulty performing them without direct supervision .... ").
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less supportive of a claimant's application for benefits, while simultaneously ignoring other
portions of the same statements that are more supportive of the application. See, e.g., Lewis v.

Astrue, No. 1 lcv7358 (JPO), 2013 WL 5834466 (Oct. 30, 2013) (noting that even the existence
of supportive conclusions in a medical source statement "does not permit the ALJ to cherry-pick
which documents and evidence he looks at, ignoring some and using others); accord Pereyra v.

Astrue, No. 10cv5873 (DLI), 2012 WL 3746200, at *14 (E.D.N.Y. Aug. 28, 2012).
The ALJ also cited to Dr. Revan's evaluation, which did give a brief description of
Plaintiffs daily activities, but Dr. Revan's opinion that Plaintiff had "mild limitations with
activities of daily living secondary to her hand pain" did not take into account Plaintiffs mental
impairments. (See R. at 324 (Dr. Revan specifically noting, on internal medicine examination,
that there was "[a] separate psychological evaluation to follow").) The consulting psychologist,
Dr. Reddy, appears to be the only medical professional to have directly opined on the severity of
Plaintiffs limitations in her activities of daily living, and he found that Plaintiff had mild
restrictions of activities of daily living (see id. at 344), a finding which the ALJ did not cite. The
ALJ also made no mention here of the statement of Dr. Ghumman, Plaintiffs treater, that
Plaintiff had "emotional and behavioral exacerbations on and off affecting her baseline routine

life" (R. at 371), 29 and certainly made no attempt to ascertain what Dr. Ghumman meant by

29

While the ALJ did refer to Dr. Ghumman's records in his RFC determination, that is
insufficient to inform the Court whether he considered them at step three and, if so, the weight he
accorded them. See Kohler v. Astrue, 546 F.3d 260, 268 (2d Cir. 2008) ("the ALJ's decision
discusse[d] much of the relevant evidence primarily in the context of[the plaintiffs] residual
functional capacity to perform work and not in the context of the four functional areas identified
by the regulations ... [and] [t]hus it is not clear whether the ALJ adequately considered the
entire record when determining the severity of [the plaintiffs] impairment); see also Benjamin v.
Astrue, No. 1 lcv2074 (NGG), 2013 WL 271505, at *5-6 (E.D.N.Y. Jan. 23, 2013) (quoting
Kohler).
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referencing an effect on Plaintiffs "baseline routine life" or how severe he believed that effect to
be. See, e.g., Pabon v. Barnhart, 273 F. Supp. 2d 506, 514 (S.D.N.Y.2003) ("The duty to
develop a full record compels the ALJ to obtain from the treating source expert opinions as to the
nature and severity of the claimed disability," citations and alterations omitted).
Thus, while the ALJ did cite to certain records in this section, he ignored other records of
seemingly equal relevance, and he cited no report of any treater or other medical source who had
arrived at the conclusion he did- that Plaintiff was "moderately" limited in her activities of daily
living. Even if the ALJ have had valid reasons for making such a finding, he did not adequately
explain those reasons.

2.

Social Functioning

The ALJ did not cite to any specific support for his finding that Plaintiff had "moderate
difficulties" in social functioning, other than to note Plaintiff's statements that "she lives alone,
but her fiance visits on a regular basis." (R. at 20.) Although the ALJ also stated that Plaintiff
had "no documented pattern of maladaptive behavior and related well with her fiance" (id.
at 20), his rationale for that conclusion is unclear.

It seems obvious that the ALJ did not rely on the finding of Dr. Reddy that Plaintiff had
only a "mild" degree of limitation as to social functioning (see id. at 344), as the ALJ's
determination was different, and he did not even refer to Dr. Reddy's finding in this regard. It
also seems clear that the ALJ did not rely on - and perhaps did not even consider at this point evidence in the Record suggesting that Plaintiff had in fact displayed "maladaptive behavior."
Such evidence included Dr. Schreiber's notation that Plaintiff had reported a lack of friends and
close family relationships (id. at 306) and "appear[ed] to have some difficulty being able to relate
to and interact appropriately with others" (id. at 307). The Record also contained repeated

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notations by Plaintiffs treating psychiatrist, Dr. Ghumman, that Plaintiff suffered from paranoia

(id. at 371, 374) and had anger issues and mood swings (id. at 374). It also contained medical
records from St. Barnabas Hospital, indicating that Plaintiff had been hospitalized after
threatening her neighbors. (Id. at 263.)
Overall, it unclear to this Court how the ALJ reached his determination that Plaintiff had
"moderate" limitations in her social functioning, as he offered no explanation, and as evidence
exists in the Record that would support a finding of a less severe or, potentially, a more severe
limitation in this domain. See 20 C.F.R. § 416.920a(e)(4) ("The decision must show the
significant history, including examination and laboratory findings, and the functional limitations
that were considered in reaching a conclusion about the severity of the mental impairment(s).");

see also Benjamin v. Astrue, No. 1 lcv2074 (NGO), 2013 WL 271505, at *5 (E.D.N.Y. Jan. 23,
2013) (finding error where the ALJ made conclusions about severity in each of the four
functional groups, but did not cite to "evidence nor provide any substantive analysis in support of
these conclusions," as the ALJ was "obligated to provide specific findings justifying each of
these rankings." (emphasis in original) (citations omitted)).

3.

Concentration, Persistence, or Pace

As to his finding that Plaintiff had "moderate difficulties" in maintaining concentration,
persistence, or pace, the ALJ only stated that he had relied on the consultative report of
Dr. Schreiber. (Id.) Dr. Schreiber's report did contain certain findings regarding concentration

(see id. at 306 (finding that Plaintiffs attention and concentration [were] intact" as she "was able
to count forward and backwards," and "could do simple calculations and serial 3's")), but the
ALJ did not explain the weight he applied to Dr. Schreiber's opinion. Nor did he even mention

any other evidence in the Record with respect to this domain, even though "great care" must be

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exercised in "reaching conclusions about [a claimant's] ability or inability to complete tasks
under the stresses of employment during a normal workday or work week based on a timelimited mental status examination or psychological testing by a clinician." 20 C.F.R. Part 404,
Subpart P, Appendix 1, § 12.00(C)(3).
Dr. Reddy had actually concluded that Plaintiff had moderate limitations in this domain
(id. at 344), but, again, the ALJ did not even cite to Dr. Reddy's opinion as part of this analysis.

The ALJ also appeared to ignore entirely the relevant opinions of Dr. Ghumman, Plaintiffs
treater. Dr. Ghumman did not directly opine as to the level of Plaintiffs difficulties in terms
such as "mild," "moderate," or "marked," but he did specifically express the view that Plaintiff
had problems with focus and concentration. (See e.g., id. 371 (finding that Plaintiff had
difficulty focusing and concentrating); id. at 374 (stating plaintiff had difficulty focusing and
concentrating that "affect[ed] her baseline functional levels" as well as paranoia, mood swings,
anger issues, depression and hallucinations).) As previously discussed, the ALJ has a duty to
develop the record and attempt "to obtain from the treating source expert opinions as to the
nature and severity of the claimed disability." Pabon, 273 F. Supp. 2d at 514.
Thus, as to Plaintiffs ability to maintain concentration, persistence and pace, the ALJ
both failed to analyze the weight that should have been accorded to the opinions of the different
medical sources, and failed to explain how he reached the conclusion that Plaintiff was
"moderately" limited in this domain. See Lewis v. Astrue, No. l lcv7538 (JPO),
2013 WL 5834466, at *30-31 (S.D.N.Y. Oct. 20, 2013) (finding error where "the ALJ did not
explain the logical connection between the evidence he cited and his conclusions").

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4.

Episodes of Decompensation

Finally, the ALJ stated that there were "no partial or complete hospitalizations" after the
alleged onset date in the Record, 30 as the basis for finding that Plaintiff had "experienced no
episodes of decompensation of extended duration." (R. at 20.) The ALJ seems to have employed
an overly narrow definition of "episodes of decompensation," by equating such episodes with
hospitalizations. That view would not even be supported by the Social Security Administration's
own definition, which states that "episodes of decompensation"
are exacerbations or temporary increases in symptoms or signs
accompanied by a loss of adaptive functioning, as manifested by
difficulties in performing activities of daily living, maintaining
social relationships, or maintaining concentration, persistence, or
pace. Episodes of decompensation may be demonstrated by an
exacerbation in symptoms or signs that would ordinarily require
increased treatment or a less stressful situation (or a combination
of the two). Episodes of decompensation may be inferred from
medical records showing significant alteration in medication; or
documentation of the need for a more structured psychological
support system (e.g., hospitalizations, placement in a halfway
house, or a highly structured and directing household); or other
relevant information in the record about the existence, severity,
and duration of the episode.
United States Social Security Administration, Disability Evaluation Under Social Security

§ 12.00 available at http://www.ssa.gov/disability/professionals/bluebook/12.00MentalDisorders-Adult.htm (last visited Jan. 12, 2015); see also Kohler, 546 F.3d at 266 n.5.
As noted above, Dr. Ghumman stated that Plaintiff had experienced "emotional and
behavioral exacerbations on and off affecting her baseline routine life." (R. at 371.) While it
may be unclear from that description whether the "exacerbations" of Plaintiffs symptoms
reached the level of "episodes of decompensation," the ALJ had a duty to develop the record,

30

The Record did include reports of hospitalizations prior to the alleged onset date (see
id. at 234-65).
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which would have included contacting Dr. Ghumman if necessary to clarify the matter. 31

See, e.g., Calzada v. Astrue, 753 F. Supp. 2d 250, 269 (S.D.N.Y. 2010) ("[I]f a physician's
finding in a 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
from the physician to fill any clear gaps before dismissing the doctor's opinion."); accord

Stemmermann v. Colvin, No. 13cv241(SLT),2014 WL 4161964, at *8 (E.D.N.Y. Aug. 19,
2014). Additionally, the ALJ also did not appear to consider Dr. Reddy's finding that Plaintiff
suffered from "one or two" episodes of decompensation (id. at 344).
In sum, as to all four functional areas, this Court is unclear as to how the ALJ weighed
the medical opinions in the Record, and cannot "discern whether the ALJ properly considered all
evidence relevant." Kohler, 546 F.3d at 269. For these reasons, remand is appropriate. See id.;

accord Silberman v. Astrue, No. 08cv03398 (RMB) (THK), 2009 WL 2902576, at *6-7
(S.D.N.Y Aug. 14, 2009) (noting that a court may not "affirm an administrative action on
grounds different from those considered by the agency," and, where an agency's rationale is not
set forth with "such clarity as to be understandable," a court cannot appropriately review it),

report and recommendation adopted by 2009 WL 2778245 (Sept. I, 2009); see Benjamin,
2013 WL 271505 at *6-7. 32

31

The ALJ also had an obligation to fill in any gaps in the medical record, particularly if
there were gaps in records from a physician with whom Plaintiff had a close and important
treatment relationship. On this point, the Court notes that the medical records obtained from
Dr. Ghumman state that he saw Plaintiff on December 4, 2010 (R. at 371), but the records of that
visit appear to be missing. If this case is remanded because of legal error, then, upon remand, the
ALJ should seek those missing records, so that he may review Plaintiffs complete treatment
history with Dr. Ghumman. See 20 C.F.R. § 416.912(d).
32

This Court also notes that the ALJ did not describe whether Plaintiff met the
paragraph A criteria for Listing 12.04 (which would have been a necessary inquiry, had Plaintiff
been found to meet the paragraph B criteria (see n.25, supra)), and, with regard to the
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B.

Adequacy of the ALJ's RFC Determination

The ALJ's RFC determination suffers from a similar defect, as this Court is unable to
ascertain the ALJ's rationale for that determination, and is therefore unable to review the ruling.
Here, while the ALJ described many portions of the medical records (see R. at 21-24), it is not
clear how much weight he accorded to each medical opinion expressed in those records or how
he reached his conclusion as to Plaintiffs RFC.
The only medical source opinion as to which the ALJ specifically discussed an assigned
weight was the opinion of the consulting psychologist, Dr. Reddy, to which he accorded "great
weight." (Id. at 23.) Defendant concedes, however, that giving great weight to Dr. Reddy's
opinion was "improper," as the ALJ's only stated reasoning for doing so was that Dr. Reddy's
opinion - i.e., that Plaintiff was "capable of the basic functional requirements of unskilled work
in a low stress environment" (R. at 311) - was "in agreement with the ALJ's own findings" (Def.
Mem., at 18; see R. at 23) 33 ). Defendant argues that this error does not require remand, as
Dr. Reddy's "opinion was in general agreement with the treating and examining source opinion
evidence." (Def. Mem., at 19.) It is not clear, though, that the ALJ would have made reached
the same conclusion, had he adhered to the regulations and properly evaluated the weight that

paragraph C criteria, the ALJ merely stated summarily that Plaintiff did not meet them, without
referring to any evidence. If, upon remand, the ALJ were to determine that the paragraph B
criteria are actually satisfied, then he should be directed to proceed to consider the paragraph A
criteria. If one or the other of those two sets of criteria are still not satisfied, then the ALJ should
also consider, with reference to the Record, whether Plaintiff meets the criteria set out in
paragraph C.
33

Specifically, the ALJ stated that "[g]reat weight is granted to the mental assessment
dated July 16, 2010, by Dr. V Reddy, clinical psychologist from the State Agency, since the
same agrees with the undersigned [ALJ's] conclusion that [Plaintiff] could perform simple
repetitive tasks consistent with unskilled work." (R. at 23 (emphasis added).)
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should have been assigned to each of the medical opinions in the Record, and thus this Court
cannot conclude that the great weight placed on Dr. Reddy's opinion was harmless error.
Further, while, in making his RFC determination, the ALJ appears to have focused on
Dr. Ghumman's December 28, 2010 findings that Plaintiff was "stable" and showed an
improvement in her GAF score, 34 it is not evident that Dr. Ghumman's findings in this regard
actually supported the ALJ's determination.
First, while the ALJ stated that Dr. Ghumman had reported Plaintiff to be in "stable
condition" (see n.34, supra), the full context of Dr. Ghumman's notes indicate (as noted above
and as the ALJ recognized elsewhere in his decision (see R. at 23)) that, while Plaintiffs
condition was "relatively clinically stable on treatment," she still had "emotional and behavioral
exacerbations on and off affecting her baseline routine life" (id. at 371). Especially given this
context, it would have been error for the ALJ simply to equate a finding of "stability" with an
ability to work. See e.g. Kohler v. Astrue, 546 F.3d 260, 268 (2d Cir. 2008) (finding it was error
for the ALJ to "consistently interpret[] reports that [claimant's] condition ha[d] been 'stable' to
mean that [claimaint's] condition ha[d] been good, when the term could mean only that her
condition has not changed, and she could be stable at a low functional level").
Second, even assuming that it was proper for the ALJ to have considered Plaintiffs GAF
score in making his RFC determination (see n.6, supra (noting that the DSM-V has dropped the

34

After briefly describing Dr. Ghumman's May 14, 2011 findings that Plaintiff suffered
from "paranoia, mood swings, anger, hallucinations, sleeping difficulty, focusing and
concentrating difficulties affecting her borderline functional level" and that "any stress could
deteriorate her clinical condition," the ALJ specifically noted that "the last treatment by
Dr. Ghumman was on December 28, 2010, at which time he reported improvement in the
[Plaintiffs] condition." (Id. at 23.) Later in his opinion, the ALJ clarified that, in the same
December 28, 2010 findings, "Dr. Ghumman reported stable condition with the treatment and
improvement in her global assessment of functioning from 50 to 55." (Id. at 24.)
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use of the GAF scale)), the ALJ should not have used such a score to supplant the tester's more
negative findings, cf Santiago v. Colvin, No. 12cv7052 (GBD) (FM), 2014 WL 718424, at *20
(S.D.N.Y. Feb. 25, 2014) (noting that an ALJ "need not afford controlling weight to the GAF
score, especially if it conflicts with the test administrator's other observations"), report and
recommendation adopted by 2014 WL 1092967 (S.D.N.Y. Mar 17, 2014). Here, on the same
day that Dr. Ghumman recorded a GAF score of 55 for Plaintiff, Dr. Ghumman also stated that
Plaintiff "still experience[d] depression [and] anxiety, still hear[d] voices (less in severity and
frequency), still [felt] paranoid, ... [and still had] difficulty ... focus[ing]." (R. at 370-71.) In
all, Dr. Ghumman concluded that Plaintiff "seem[ed] to suffer from chronic mental illness." (Id.
at 371.) Further, ifthe ALJ detemined that any findings noted by Dr. Ghumman regarding the
severity of Plaintiffs impairments were in conflict with the GAF score he reported for her, or
with any other aspect of his psychiatric assessment, then the ALJ had a duty to develop the
record, rather than merely disregard or assign lower weight to Dr. Ghumman's opinions. See e.g.
Santiago v. Commissioner of Social Sec., No. 13cvl464 (MKB), 2014 WL 4793448, at* 11-13
(E.D.N.Y. Sept. 25, 2014). 35
Defendant argues that the ALJ's RFC finding that Plaintiff was only capable of
performing "simple repetitive work with only occasional contact with co-workers and no contact
with the public" incorporated Dr. Ghumman's opinion that Plaintiff suffered from difficulty
focusing and concentrating and that any stress could deteriorate her condition. (See Def. Mem.,
at 17.) Similarly, Defendant argues that, by "limiting Plaintiff to the most basic work from a

35

Defendant also argues that "Dr. Ghumman declined to provide an opinion about
Plaintiffs specific mental limitations" (Def. Br., at 17), but this argument is unavailing in light
of the ALJ's affirmative duty to develop the record. See SSR 85-16 ("when medical source notes
appear to be incomplete, recontact with the source should be made to attempt to obtain more
detailed information").
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mental standpoint with no more than occasional contact with others," the ALJ accounted for
Dr. Schreiber's "assessment that Plaintiffs psychiatric impairments significantly affected her
ability to function on a daily basis and that she had a history of difficulty making appropriate
decisions, relating to and acting appropriately with others and with stress." (Id.) Yet, while the
ALJ did list the opinions of Ors. Ghumman and Schreiber in the section of his decision
addressing Plaintiffs RFC, the ALJ similarly listed a great deal of other reports and records
there, without providing sufficient analysis connecting the cited evidence to his RFC
determination. Where an ALJ "simply state[s] his RFC finding and broadly cite[s] to multiple
exhibits in the record," but does not "provide[] ... connecting analysis," the matter should be
remanded. De Leon v. Colvin, No. 13cv4540 (FB) 2014 WL 4773966 (E.D.N.Y. Sept. 24,
2014). Here, the ALJ's brief analysis section (see R. at 24) is insufficient to allow the Court to
review the ALJ's RFC determination.
The question for this Court is whether the ALJ's decision - as the final decision of the
Commissioner, and in light of all the evidence in the Record - demonstrates that the
Commissioner's determination rested on an application of correct legal standards. As, in
connection with determining PlaintifPs RFC, the ALJ improperly applied great weight to
Dr. Reddy's opinion, and provided no explanation as to the weight that he assigned to any other
medical opinions, including the opinions of Plaintiffs treating psychiatrist, I recommend that
this case be remanded for further consideration of the effect of her mental impairments on her
residual capacity to work. 36 See Kohler, 546 F.3d at 268 (2d Cir. 2008) (remanding where, inter

36

I do not recommend that Plaintiffs claim be remanded for further consideration of her
physical impairments, as Plaintiffs motion before this Court focused solely on the ALJ's
decision with respect to her mental impairments, raising no objection to the ALJ's findings
regarding her physical impairments.

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alia, it was "not clear whether the ALJ would have arrived at the same conclusion regarding [the
claimant's] residual functional capacity to perform work had he adhered to the regulations");

accord Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) ("When there are gaps in the
administrative record or the ALJ has applied an improper legal standard, we have, on numerous
occasions, remanded to the [Commissioner] for further development of the evidence. Remand is
particularly appropriate where, as here, we are unable to fathom the ALJ's rationale in relation to
the evidence in the record without further findings or clearer explanation for the decision."
(internal citations and quotation marks omitted)).

C.

Substantial Evidence Review

As discussed above, Defendant's brief is focused on arguing that the ALJ's decision is
supported by substantial evidence in the Record. (See Def. Mem., at 12-25.) Where, however,
remand is appropriate because the Court cannot determine whether the law was properly applied
by the Commissioner, the Court should not, prior to remand, attempt to assess whether
substantial evidence in the record supports the ultimate disability determination. See, e.g.,

Silberman v. Astrue, No. 08cv03398 (RMB) (THK), 2009 WL 2902576, at* 11, 14 (S.D.N.Y
Aug. 14, 2009), report and recommendation adopted by 2009 WL 2778245 (Sept. 1, 2009).
Accordingly, at this juncture, the Court should not attempt to make this assessment with respect
to Plaintiffs mental impairments.

CONCLUSION
For all of the foregoing reasons, I respectfully recommend granting Plaintiffs motion for
judgment on the pleadings (Dkt. 12), to the extent that her claim be remanded for:
( l)

further consideration, at step three of the sequential
evaluation, of whether Plaintiffs identified psychological
impairment of "major depressive disorder with psychotic

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features" meets or equals the Listing 12.04, for affective
disorders, and
(2)

further consideration of Plaintiffs RFC,

and that Defendant's cross-motion (Dkt. 16) be denied.
I further recommend that, upon remand, the ALJ be specifically directed - both in
connection with evaluating Plaintiff's level of functioning in each of the domains relevant to
Listing 12.04, and in evaluating Plaintiffs RFC - to reconsider the evidence in the Record
regarding Plaintiffs mental impairments in accordance with 20 C.F.R. § 416.927(c) regarding
the weighing of medical opinion evidence, to set forth his reasoning for assigning particular
weight to that evidence, and to develop the Record as necessary to fill in any gaps or to clarify
medical findings.
Pursuant to 28 U.S.C. § 636(b)(I) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties shall have fourteen (14) days from service of this Report and
Recommendation to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any
responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to
the chambers of the Honorable Colleen McMahon, United States Courthouse, 500 Pearl Street,
Room 1640, New York, NY 10007, and to the chambers of the undersigned, United States
Courthouse, 500 Pearl Street, Room 1660, New York, NY I 0007. Any requests for an extension
of time for filing objections should be directed to Judge McMahon. FAILURE TO OBJECT
WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND
WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985);
JUE AFL-CIO Pension Fundv. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson,

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968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988);

McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
Dated: New York, New York
January 26, 2015
Respectfully submitted,

rt'tit:U1 y0-;7-____
DEBRA FREEMAN
United States Magistrate Judge
Copies to:
Hon. Colleen McMahon, U.S.D.J.

All counsel (via ECF)

49