Barnwell v. Colvin

Filing 27

OPINION AND ORDER re: 24 MOTION for Judgment on the Pleadings filed by Carolyn W. Colvin, 11 MOTION for Judgment on the Pleadings filed by Diane Barnwell. Accordingly, for all the foregoing reasons, plaintiff's motion for judgment on the pleadings in granted (Docket Item 11), and the Commissioner's cross-motion is denied (Docket Item 24) The case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. The Clerk of the Court is directed to close the case. (Signed by Magistrate Judge Henry B. Pitman on 9/19/2014) Copies Sent By Chambers. (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
DIANE BARNWELL,

:
Plaintiff,

CAROLYN W. COLVIN, acting
Commissioner of Social Security,

13 Civ. 3683 (HBP)

:

-against-

:

OPINION
AND ORDER

:
:

Defendant.
:
-----------------------------------X

PITMAN, United States Magistrate Judge:

I.

Introduction

Plaintiff, Diane Barnwell, brings this action pursuant
to section 205(g) of the Social Security Act (the "Act"), 42
U.S.C. § 405(g), seeking judicial review of a final decision of
the Commissioner of Social Security ("Commissioner") denying her
application for supplemental security income benefits ("SSI").
Plaintiff has moved for judgment on the pleadings under Rule
12(c) of the Federal Rules of Civil Procedure (Notice of Motion,
dated January 7, 2014 (Docket Item 11)).

The Commissioner has

filed a cross-motion also seeking judgment on the pleadings
(Notice of Motion, dated June 20, 2014 (Docket Item 24)).

The

parties have consented to my exercising plenary jurisdiction in
this matter pursuant to 28 U.S.C. § 636(c).

For the reasons set forth below, I deny the defendant's
motion for judgment on the pleadings and order that the case be
remanded for further proceedings consistent with this opinion.

II.

Facts

A.

Procedural Background

Plaintiff filed an application for SSI on December 10,
2007 alleging that she had been disabled since November 30, 2007
(Tr.1 165).

Plaintiff alleges she was disabled due to hyperten-

sion,2 diabetes, gastroesophageal reflux disease,3 anemia4 and
depression (Tr. 24).

The Social Security Administration ("SSA")

denied plaintiff's application, finding that she was not disabled

1

"Tr." refers to the administrative record that the
Commissioner filed with her answer, pursuant to 42 U.S.C. §
405(g) (see Notice of Filing of Administrative Record, dated June
28, 2013 (Docket Item 8)).
2

Hypertension is "persistently high arterial blood
pressure." Dorland's Illustrated Medical Dictionary,
("Dorland's") at 799 (27th ed. 1998).
3

Gastroesophageal reflux disease is "a chronic, pathologic,
potentially life-threatening disease manifested by the various
sequelae associated with reflux of the stomach and duodenal
contents into the esophagus, which is principally characterized
by heartburn and regurgitation." Dorland's at 582.
4

Anemia is "a reduction below normal in the number of
erythrocytes per cu. mm., in the quantity of hemoglobin, or in
the volume of packed red cells per 100 ml. of blood which occurs
when the equilibrium between blood loss . . . and blood
production is disturbed." Dorland's at 76.
2

(Tr. 87).

Plaintiff timely requested and was granted a hearing

before an Administrative Law Judge ("ALJ") (see Tr. 65).

ALJ

Newton Greenberg conducted a hearing on January 5, 2009 (Tr. 6574).

In a decision dated January 23, 2009, ALJ Greenberg deter-

mined that plaintiff was not disabled within the meaning of the
Act from November 30, 2007 through the date of the decision (Tr.
76-82).

On February 4, 2009, plaintiff requested review by the

Appeals Council (Tr. 121).
The Appeals Council remanded plaintiff's case for
further consideration on July 29, 2010 (Tr. 84-86).

On March 15,

2011, ALJ Lucian Vecchio held a second hearing (Tr. 34-64) and
rendered a decision on September 9, 2011, again finding plaintiff
was not disabled during the relevant time period (Tr. 18-29).
The ALJ's decision became the final decision of the Commissioner
on April 10, 2013 when the Appeals Council denied plaintiff's
request for review (Tr. 1-3).
Plaintiff commenced this action seeking review of the
Commissioner's decision on May 31, 2013 (Complaint (Docket Item
1)).

On January 7, 2014, plaintiff moved for judgment on the

pleadings (Docket Item 11), and on June 20, 2014 defendant crossmoved for judgment on the pleadings (Docket Item 24).

3

B.

Plaintiff's
Social Background

Plaintiff was born on November 27, 1963 and was fortyfour years old at the alleged onset of her disability on November
30, 2007 (Tr. 28).
38).

Plaintiff holds a high school diploma (Tr.

She currently lives alone (Tr. 40), but previously resided

with her daughter during at least part of the alleged period of
disability (Memorandum of Law in Support of Plaintiff's Motion
for Judgment on the Pleadings, dated January 7, 2014, (Docket
Item 12) ("Pl.'s Mem.") at 2; see Tr. 248).

Plaintiff's last

employment was in 2005 when she worked for three or four months
as a car transporter for a rental car service (Tr. 38).

Prior to

that, she was employed for five years as a mail handler by the
United States Postal Service (Tr. 38, 43).

C.

Plaintiff's
Medical Background5

Plaintiff suffers from a variety of conditions, including diabetes, hypertension, anemia, gastroesophageal reflux
disease and depression (Tr. 24).

She began seeing a physician

for depression in 2003 (Tr. 588-93), and related medical notes

5

I recite only those facts relevant to my review. The
administrative record more fully sets out plaintiff's medical
history (Docket Item 8).
4

from 2007 indicate that she was suffering from fatigue (Tr. 620),
emotional issues (Tr. 688) and stress (Tr. 614).

She has regu-

larly been prescribed Zoloft, Benadryl and other medications (see
Tr. 701).

Plaintiff has also experienced physical injuries,

including a sprain of her knee and elbow (Tr. 501, 783).

1.

Dr. Ravid, Dr. Finger
and Dr. Apacible

On February 11, 2008, plaintiff was interviewed by Dr.
Renee Ravid, an SSA consultative psychiatrist (Tr. 248-49).

Dr.

Ravid found that plaintiff's "recent memory is somewhat impaired"
(Tr. 248) and that plaintiff had "impairments in sustained
concentration" (Tr. 249).

In addition, Dr. Ravid found that

plaintiff was impaired "in her ability to respond appropriately
to supervision, co-workers and work pressures" (Tr. 249).
On that same date, plaintiff was examined by Dr. Howard
Finger, an SSA consultative examiner (Tr. 250-52).

Dr. Finger

found that plaintiff was "mildly limited" in the amount of time
she was able to stand, the distance she was able to walk and in
her ability to "lift, carry, push/pull, climb stairs" (Tr. 252).
Dr. Apacible, an SSA non-examining specialist, reviewed
plaintiff's file on February 27, 2008 (Tr. 253-69).

Dr. Apacible

concluded that plaintiff had mild "restriction of activities of

5

daily living," mild "difficulties in maintaining social functioning," and moderate "difficulties in maintaining concentration,
persistence or pace" (Tr. 263).

Dr. Apacible found, based upon

review of plaintiff's files, that she was "capable of simple,
entry level work" (Tr. 269).

2.

Dr. Taneja

On December 22, 2008, Dr. Navneet Taneja, one of
plaintiff's treating physicians, completed a Psychiatric-Psychological Impairment Questionnaire, noting that plaintiff had major
depression and that her treatment included bi-monthly group
therapy sessions (Tr. 276) along with Zoloft and Benadryl (Tr.
281).

Dr. Taneja also indicated that plaintiff could perform

"low stress" work (Tr. 282), but that she would likely be absent
from work three or more times a month as a result of her conditions (Tr. 283).

3.

Dr. Reddy

On December 28, 2009 Dr. Navin Reddy, another treating
physician, completed a Psychiatric-Psychological Impairment
Questionnaire indicating that plaintiff had a major depressive
disorder (Tr. 510), but also noting that she was capable of
performing work under "moderate stress" (Tr. 516).
6

Dr. Reddy's

treatment notes of February 2, 2010 indicate that plaintiff
continued to have a major depressive disorder and that she had
trouble sleeping and was irritable (Tr. 769).

4.

Dr. Publico

Dr. Lourdes Publico was plaintiff's treating physiatrist6 in 2009 (Tr. 501).

The records of Dr. Publico's treatment

are not included in the administrative record aside from a
completed Multiple Impairment Questionnaire dated November 24,
2009 (Tr. 501-08).7

In the questionnaire, Dr. Publico diagnosed

plaintiff with a knee sprain, depression, hypertension, diabetes
and chronic pain (Tr. 501).

Except for plaintiff's chronic pain,

these conditions appear to have been diagnosed "by history" (Tr.
501).

Dr. Publico also indicated on the questionnaire that

plaintiff could only sit for two hours in a typical eight hour
work day and could only stand for one hour (Tr. 503).

Dr.

Publico also noted that plaintiff would likely be absent from
6

A physiatrist is a medical doctor who specializes in
physical medicine. Dorland's at 1291.
7

The questionnaire is difficult to read, and the parties
disagree on the length of Dr. Publico's treatment relationship:
plaintiff asserts that Dr. Publico began treating her in 2003
(Pl.'s Mem. at 19), while the Commissioner claims treatment began
in 2009 (Memorandum of Law in Support of the Commissioner's
Cross-Motion for Judgment on the Pleadings and in Opposition to
Plaintiff's Motion for Judgment on the Pleadings, dated June 20,
2014 (Docket Item 25) ("Comm'r Mem.") at 19).
7

work for three or more days every month as a result of her
various conditions (Tr. 506).

5.

Dr. Salon and
Dr. Fujiwaki

On January 10, 2011, plaintiff was examined by Dr.
Aurelio Salon, an SSA consultative examiner (Tr. 780-89).

He

noted plaintiff's history of diabetes, depression, hypertension,
obesity and her then current right elbow sprain (Tr. 783).

On

the basis of his examination, he found that plaintiff was not
restricted in her ability to sit, stand, climb, push, pull or
carry (Tr. 783).
Dr. Haruyo Fujiwaki, an SSA consultative psychologist,
interviewed plaintiff on January 10, 2011 (Tr. 773-76).

He

completed a Medical Source Statement of Ability to Do WorkRelated Activities on January 24, 2011 (Tr. 777-79).

He indi-

cated that while plaintiff had no issues with simple instructions, she was moderately to markedly limited in understanding,
remembering, carrying out and making judgments on complex instructions in a work-related environment (Tr. 777).

He also

indicated that plaintiff had moderate limitations in responding
appropriately in work situations (Tr. 778).

8

6.

Dr. Rosen and
Dr. Wiegand

Questionnaires completed by Dr. Anna Rosen and Dr.
Jessica Wiegand were also submitted to the Appeals Council after
the ALJ's decision (see Tr. 4).
On October 27, 2011, Dr. Rosen completed a PsychiatricPsychological Impairment Questionnaire; the questionnaire appears
to state that Dr. Rosen began treating plaintiff on September 23,
20108 for a major depressive disorder (Tr. 796-803).

Dr. Rosen

wrote that plaintiff's depression was "severe without psychosis"
(Tr. 796).

She nevertheless found plaintiff's prognosis to be

"good" (Tr. 796), with moderate limitations in memory and concentration (Tr. 799) and the ability to tolerate low work stress
(Tr. 802).
On August 30, 2012, Dr. Wiegand completed a
Psychiatric-Psychological Impairment Questionnaire which also
appears to state that she started treating plaintiff for major
depression on September 23, 20109 (Tr. 807-14).

Dr. Wiegand

8

Under "date of first treatment" Dr. Rosen has written
"9/23/2010"; however, under "earliest date that the description
of symptoms and limitations in this questionnaire applies," Dr.
Rosen wrote "do not understand question" and "since my
eval[uation] of 9/15/11" (Tr. 803).
9

Under "date of first treatment" Dr. Wiegand has written
"9/23/2010"; however, under "earliest date that the description
(continued...)
9

found that plaintiff suffered from marked limitations in her
ability to remember locations and work-like procedures, to
maintain attention and concentration for extended periods, to
perform activities within a schedule, to complete a normal
workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without unreasonably
numerous and unreasonably lengthy rest periods (Tr. 810-11).

She

also found that plaintiff suffered from several other moderate
limitations related to memory, concentration and social functioning (Tr. 810-11).

Dr. Rosen found that plaintiff would require

three or more days of absences per month in order to treat her
symptoms and would be expected to experience episodes of decompensation (Tr. 801, 803).

D.

Proceedings
Before the ALJ

1.

Plaintiff's
Testimony

Plaintiff testified that the symptoms of her depression
were pain (Tr. 39) and inability to sleep (Tr. 40).

9

She also

(...continued)
of symptoms and limitations in this questionnaire applies," Dr.
Wiegand wrote "3/28/11 - patient began treatment at center for
counseling at North General[.] [S]ymptoms were present prior"
(Tr. 814).
10

reported fatigue (Tr. 41) and that her medication did not relieve
her symptoms (Tr. 40).

She testified that her daily activities

are fairly limited -- she does not cook much, but she does do
some laundry and cleaning (Tr. 40).

2.

Medical
Expert Testimony

Dr. Edward Halperin, the SSA medical expert, examined
plaintiff's medical records and interviewed her during the
hearing before the ALJ.

His conclusion was that she had "low

grade depression" that was not at listing level and that her
diabetes and hypertension were controlled (Tr. 48).

3.

Vocational
Expert Testimony

The testimony from the vocational expert assumed the
plaintiff could perform sedentary work, with no exertional
limitations but with non-exertional limitations of "mild to
moderate difficulty in dealing with the public," coworkers and
supervisors, and "mild limitations in memory" (Tr. 60-61).

The

vocational expert testified that, based on this description,
plaintiff would be unable to perform her past relevant work (Tr.
61).

Plaintiff could, however, perform the work of a jewelry

bench worker (Tr. 61) or a jewelry stone setter (Tr. 62), even if
11

she had the additional impairment of mild limitations in concentration (Tr. 61-62).

The vocational expert testified that if

plaintiff had moderate limitations in concentration or was absent
three or more times a month, she would be unable to perform these
jobs because of their productivity requirements, and that there
was no other work in the national economy that plaintiff could
perform with these additional restrictions (Tr. 62-63).

III.

Analysis

A.

Applicable
Legal Principles

1.

Standard of Review

The Court may set aside the final decision of the
Commissioner only if it is not supported by substantial evidence
or if it is based upon an erroneous legal standard.

42 U.S.C.

§ 405(g); Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per
curiam); Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012);
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).
The Court first reviews the Commissioner's decision for
compliance with the correct legal standards; only then does it
determine whether the Commissioner's conclusions were supported
by substantial evidence.

Tejada v. Apfel, 167 F.3d 770, 773 (2d

12

Cir. 1999); Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
"Even if the Commissioner's decision is supported by substantial
evidence, legal error alone can be enough to overturn the ALJ's
decision," Ellington v. Astrue, 641 F. Supp. 2d 322, 328
(S.D.N.Y. 2009) (Marrero, D.J.); accord Johnson v. Bowen, supra,
817 F.2d at 986, but "where application of the correct legal
principles to the record could lead to only one conclusion, there
is no need to require agency reconsideration," Johnson v. Bowen,
supra, 817 F.2d at 986.
"'Substantial evidence' is 'more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.'"

Talavera v. Astrue,

supra, 697 F.3d at 151, quoting Richardson v. Perales, 402 U.S.
389, 401 (1971).

Consequently, "[e]ven where the administrative

record may also adequately support contrary findings on particular issues, the ALJ's factual findings 'must be given conclusive
effect' so long as they are supported by substantial evidence."
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam),
quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
Thus, "[i]n determining whether the agency's findings were
supported by substantial evidence, 'the reviewing court is
required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be
13

drawn.'"

Selian v. Astrue, supra, 708 F.3d at 417, quoting

Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per
curiam).

Where, as here, the claimant has submitted new evidence

to the Appeals Council following the ALJ's decision, such evidence becomes part of the administrative record.

See Brown v.

Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (per curiam); Perez v.
Chater, 77 F.3d 41, 45 (2d Cir. 1996).

2.

Determination
of Disability

A claimant is entitled to SSI benefits if she can
establish an inability to "engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected to
last for a continuous period of not less than twelve months."
42 U.S.C. § 1382c(a)(3)(A); see also Barnhart v. Walton, 535 U.S.
212, 217-22 (2002) (both impairment and inability to work must
last twelve months).10

The impairment must be demonstrated by

"medically acceptable clinical and laboratory diagnostic tech-

10

The standards that must be met to receive SSI benefits
under Title XVI of the Act are the same as the standards that
must be met in order to receive disability insurance benefits
under Title II of the Act. Barnhart v. Thomas, 540 U.S. 20, 24
(2003). Accordingly, cases addressing the latter are equally
applicable to cases involving the former.
14

niques," 42 U.S.C. § 1382c(a)(3)(D), and it must be "of such
severity" that the claimant cannot perform her previous work and
"cannot, considering [the claimant's] age, education, and work
experience, engage in any other kind of substantial gainful work
which exists in the national economy."
1382c(a)(3)(B).

42 U.S.C. §

Whether such work is actually available in the

area where the claimant resides is immaterial.

42 U.S.C. §

1382c(a)(3)(B).
In making the disability determination, the Commissioner must consider:

"(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, supra, 174 F.3d at 62; DiPalma

v. Colvin, 951 F. Supp. 2d 555, 565 (S.D.N.Y. 2013) (Peck, M.J.).
The Commissioner must follow the five-step process
required by the relevant regulations.
416.920(a)(4)(i)-(v).

20 C.F.R. §

The first step is a determination of

whether the claimant is engaged in substantial gainful activity.
20 C.F.R. § 416.920(a)(4)(i).

If she is not, the second step

requires determining whether the claimant has a "severe medically
determinable physical or mental impairment."
416.920(a)(4)(ii).

20 C.F.R. §

If she does, the inquiry at the third step is
15

whether any of these impairments meet one of the listings in
Appendix 1 of the regulations.

20 C.F.R. § 416.920(a)(4)(iii).

If the answer to this inquiry is affirmative, the claimant is
disabled.

20 C.F.R. § 416.920(a)(4)(iii).
If the claimant does not meet any of the listings in

Appendix 1, step four requires an assessment of the claimant's
residual functional capacity ("RFC") and whether the claimant can
still perform her past relevant work given her RFC.

20 C.F.R. §

416.920(a)(4)(iv); see Barnhart v. Thomas, supra, 540 U.S. at 2425.

If she cannot, then the fifth step requires assessment of

whether, given claimant's RFC, she can make an adjustment to
other work.

20 C.F.R. § 416.920(a)(4)(v).

will be found disabled.

If she cannot, she

20 C.F.R. § 416.920(a)(4)(v); see Selian

v. Astrue, supra, 708 F.3d at 417-18; Talavera v. Astrue, supra,
697 F.3d at 151.
RFC is defined in the applicable regulations as "the
most [the claimant] can still do despite [her] limitations."
20 C.F.R. § 416.945(a)(1).

To determine RFC, the ALJ "identif-

[ies] the individual's functional limitations or restrictions and
assess[es] his or her work-related abilities on a
function-by-function basis, including the functions in paragraphs
(b),(c), and (d) of 20 [C.F.R. §§] 404.1545 and 416.945."
Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (per
16

curiam), quoting SSR 96-8p, 1996 WL 374184 at *1 (July 2, 1996).
The results of this assessment determine the claimant's ability
to perform the exertional demands of sustained work and may be
categorized as sedentary, light, medium, heavy or very heavy.

20

C.F.R. § 416.967; see Rodriguez v. Apfel, 96 Civ. 8330 (JGK),
1998 WL 150981 at *7 n.7 (S.D.N.Y. Mar. 31, 1998) (Koeltl, D.J.).
This ability may then be found to be further limited by nonexertional factors that restrict claimant's ability to work.

See

Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended in
part on other grounds on reh'g, 416 F.3d 101 (2d Cir. 2005); Bapp
v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986).
The claimant bears the initial burden of proving
disability with respect to the first four steps.

Selian v.

Astrue, supra, 708 F.3d at 418; Burgess v. Astrue, supra, 537
F.3d at 128.

Once the claimant has satisfied this burden, the

burden shifts to the Commissioner to prove the final step -- that
the claimant's RFC allows the claimant to perform some work other
than her past work.

Selian v. Astrue, supra, 708 F.3d at 418;

Butts v. Barnhart, supra, 388 F.3d at 383.
In some cases, the Commissioner can rely exclusively on
the medical-vocational guidelines ("the Grid") contained in
C.F.R. Part 404, Subpart P, Appendix 2 when making the determination at the fifth step.

Gray v. Chater, 903 F. Supp. 293, 297-98
17

(N.D.N.Y. 1995).

"The Grid takes into account the claimant's RFC

in conjunction with the claimant's age, education and work
experience.

Based on these factors, the Grid indicates whether

the claimant can engage in any other substantial gainful work
which exists in the national economy."

Gray v. Chater, supra,

903 F. Supp. at 298; Butts v. Barnhart, supra, 388 F.3d at 383.
The Grid may not be relied upon exclusively in cases
where the claimant has significant non-exertional limitations
that restrict her ability to work.

Butts v. Barnhart, supra, 388

F.3d at 383; Bapp v. Bowen, supra, 802 F.2d at 605-06.

When a

claimant suffers from a non-exertional limitation such that she
is "unable to perform the full range of employment indicated by
the [Grid]," Bapp v. Bowen, supra, 802 F.2d at 603, or the Grid
fails "to describe the full extent of a claimant's physical
limitations," Butts v. Barnhart, supra, 388 F.3d at 383, the
Commissioner must introduce the testimony of a vocational expert
in order to prove "that jobs exist in the economy which claimant
can obtain and perform."

Butts v. Barnhart, supra, 388 F.3d at

384 (internal quotation marks and citation omitted); see also
Heckler v. Campbell, 461 U.S. 458, 462 n.5 (1983) ("If an individual's capabilities are not described accurately by a rule, the
regulations make clear that the individual's particular limitations must be considered.").
18

B.

The ALJ's Decision

The ALJ applied the five-step process described above
and relied on the plaintiff's testimony and medical evidence in
making his determination that plaintiff was not disabled within
the meaning of the Act between November 30, 2007, the date the
application was filed, and September 9, 2011, the date the
decision was rendered (Tr. 22-29).
At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity since November 30, 2007,
the date of her application (Tr. 24).

At step two, the ALJ found

that the plaintiff had several medically determinable impairments
that were severe, including hypertension, diabetes, gastroesophageal reflux disease, anemia and depression (Tr. 24).

The

ALJ also found that these conditions had existed at a severe
level for a continuous period greater than twelve months (Tr.
24).

At step three, the ALJ found that the plaintiff's impair-

ments did not meet or were not medically equal to the listings in
20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 24).
At step four, the ALJ determined that plaintiff's RFC
is "slightly less than the full range of sedentary work," as

19

defined in 20 C.F.R. § 416.967(a)11 (Tr. 28).

The ALJ found that

plaintiff would be limited to simple tasks because of her mild
limitations in memory (Tr. 25).

Additionally, she would be

limited to work involving less interaction with the public,
coworkers and supervisors (Tr. 28).

The ALJ found that plain-

tiff's RFC left her unable to perform any previous work (Tr. 28).
The ALJ seems to have based his assessment of plaintiff's RFC largely on medical opinions (see Tr. 26-27).

He

accorded the medical expert opinion "great weight" because it was
"well supported and not inconsistent with the other substantial
evidence" (Tr. 27).

He accorded the agency medical consultants

"considerable weight" for the same reasons (see Tr. 27).

This

included Dr. Ravid (Tr. 248-49), Dr. Finger (Tr. 250-52), Dr.
Fujiwaki (Tr. 773-79) and Dr. Salon (Tr. 780-90).

The ALJ

accorded "little weight" to the opinions of plaintiff's treating
doctors because they were "not supported by objective clinical
findings, and were inconsistent with other substantial evidence"

11

"Sedentary work involves lifting no more than 10 pounds at
a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met." 20 C.F.R. §
416.967(a).

20

(Tr. 27).

This included Dr. Publico, Dr. Taneja and Dr. Reddy

(see Tr. 27).

The ALJ also found that plaintiff's testimony

regarding the "intensity, persistence and limiting effects" of
her symptoms were not credible "to the extent they are inconsistent with the above RFC assessment" (Tr. 26).
At step five, the ALJ elicited testimony from a vocational expert that a person with plaintiff's RFC would be able to
work as either a jewelry bench worker or a jewelry stone setter
(Tr. 29).

The ALJ therefore found that plaintiff could make a

successful adjustment to other work and that such work exists in
significant numbers in the national economy (Tr. 29).

As a

result, the ALJ found plaintiff was not disabled (Tr. 29).

C.

Analysis of the
ALJ's Decision

I first review the correctness of the legal standards
applied by the ALJ.

See Tejada v. Apfel, supra, 167 F.3d at 773;

Johnson v. Bowen, supra, 817 F.2d at 985; Ellington v. Astrue,
supra, 641 F. Supp. 2d at 327-28.

Plaintiff argues that the ALJ

committed legal error by failing to apply the treating physician
rule properly and by failing to assess the plaintiff's credibility properly (Pl.'s Mem. at 15-19, 21).

Plaintiff also argues

that the additional evidence submitted to the Appeals Council

21

warrants remand (Pl.'s Mem. at 23).

I assess each argument

below.

1.

Treating
Physician Rule

Plaintiff contends that the ALJ misapplied the treating
physician rule by improperly failing to accord plaintiff's
treating physicians -- Drs. Taneja, Reddy and Publico -- controlling weight without an adequate explanation (Pl.'s Mem. at 15,
17, 18).

Notwithstanding the ALJ's statement that he was giving

the opinions of plaintiff's treating physicians "little weight"
(Tr. 27), she asserts that the ALJ failed to specify what weight
was given to the opinions of Dr. Taneja and Dr. Reddy (Pl.'s Mem.
at 15).

Plaintiff also contends that the ALJ failed to accord

appropriate weight to Dr. Publico's findings and erred by rejecting his opinion as unsupported without first taking steps to
develop the record (Pl.'s Mem. at 18-19).
The Commissioner responds that the opinions of Dr.
Reddy and Dr. Taneja were considered by the ALJ and properly
discounted because they were speculative and unsupported by the
record (Comm'r Mem. at 17).

The Commissioner also claims that

the ALJ properly discounted the opinion of Dr. Publico for the
same reasons (Comm'r Mem. at 19), and that the ALJ had no duty to

22

request further information from Dr. Publico because the record
already contained adequate evidence on which to assess his
opinion (Comm'r Mem. at 20).
Under the treating physician rule, a treating physician's opinion will be given controlling weight under certain
circumstances and, if not given controlling weight, must be
assessed pursuant to a multi-factor test to determine what weight
will be accorded to the opinion.

The applicable regulation

provides:
Treatment relationship. Generally, we give more weight
to opinions from your treating sources, since these
sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of
your medical impairment(s) and may 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 or brief hospitalizations. If
we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s)
is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case
record, we will give it controlling weight. When we do
not give the treating source's opinion controlling
weight, we apply the factors listed in paragraphs
(d)(2)(i) and (d)(2)(ii) of this section, as well as
the factors in paragraphs (d)(3) through (d)(6) of this
section in determining the weight to give the opinion.
We will always give good reasons in our notice of
determination or decision for the weight we give your
treating source's opinion.
(i) Length of the treatment relationship and the
frequency of examination. . . .

23

(ii) Nature and extent of the treatment relationship. . . .
(3) Supportability. The more a medical source presents
relevant evidence to support an opinion, particularly
medical signs and laboratory findings, the more weight
we will give that opinion. . . .
(4) Consistency. Generally, the more consistent an
opinion is with the record as a whole, the more weight
we will give to that opinion.
(5) Specialization. We generally give more weight to
the opinion of a specialist about medical issues related to his or her area of specialty than to the
opinion of a source who is not a specialist.
(6) Other factors. When we consider how much weight to
give to a medical opinion, we will also consider any
factors you or others bring to our attention, or of
which we are aware, which tend to support or contradict
the opinion. . . .
20 C.F.R. § 416.927(d)(2) (2011);12 Burgess v. Astrue, supra, 537
F.3d at 128-29; Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004) (per curiam).

Thus, the assessment of a treating physi-

cian's opinion has been described by some courts as a two-step
process:

the ALJ must first determine if the treating physi-

cian's opinion is entitled to controlling weight, and, if it is

12

Effective March 26, 2012, Section 416.927(d) was recodified as 416.927(c), but with no substantive changes. See How
We Collect & Consider Evidence of Disability, 72 Fed. Reg.
10,651, 10,657 (Feb. 23, 2012). However, because other
provisions of the regulations were substantively amended, I apply
the version of the regulations in effect when the ALJ rendered
his decision. Lowry v. Astrue, 474 F. App'x 801, 804 n.2 (2d
Cir. 2012).
24

not, the ALJ must then go on to determine the weight to which the
opinion is entitled based on the factors listed above.

See

Chrismon v. Colvin, 531 F. App'x 893, 900-01 (10th Cir. 2013);
Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011); Warrick
v. Colvin, No. 3:13-cv-00346, 2014 WL 2480589 at *10 (M.D. Tenn.
June 03, 2014) (Report & Recommendation); Dean v. Astrue, No.
3:08cv00267, 2009 WL 2371505 at *10 (S.D. Ohio July 29, 2009)
(adopting Report & Recommendation); see also SSR 96-2p, 1996 WL
374188 at *4 (July 2, 1996).

"[G]ood reasons" must be given for

declining to afford a treating physician's opinion controlling
weight.

20 C.F.R. § 416.927(d)(2) (2011); Halloran v. Barnhart,

supra, 362 F.3d at 32; see Schisler v. Sullivan, 3 F.3d 563, 56768 (2d Cir. 1993).
When an ALJ determines that a treating source's opinion
is not entitled to controlling weight, he must apply the factors
set forth above to determine the amount of weight the opinion
should be given.

See Norman v. Astrue, 912 F. Supp. 2d 33, 42

(S.D.N.Y. 2012) (Carter, D.J.) (adopting Report & Recommendation); Ellington v. Astrue, supra, 641 F. Supp. 2d at 330;
Rodriguez v. Astrue, 07 Civ. 534 (WHP)(MHD), 2009 WL 637154 at
*20 (S.D.N.Y. Mar. 9, 2009) (Pauley, D.J.) (adopting Report &
Recommendation).

25

a.

Consideration of the Opinions
of Drs. Reddy, Taneja and Publico

The ALJ's discussion of the opinions of plaintiff's
treating sources was extremely limited and did not comply with
criteria set forth above.
The ALJ's discussion of Dr. Publico was limited to the
following:

"Dr. Publico limits the claimant to less than seden-

tary based on a knee sprain as well as the claimant's other
impairments (Exhinbit 12F).

However, there are no other records

by Dr. Publico that support[] such restrictive physical limitations, nor is there any explanation" (Tr. 27).

With respect to

Dr. Taneja, the ALJ noted only that Dr. Taneja "diagnosed the
claimant with major depressive disorder, and also identifies that
the claimant is in bimonthly group therapy, but indicates only
moderate limitations in social interaction as the claimant's most
significant limitation" (Tr. 27).

With respect to Dr. Reddy, the

ALJ wrote "Dr. Reddy . . . reports a fair prognosis and does not
identify any marked limitations . . ." (Tr. 27).13

After summa-

rizing other opinion evidence, the ALJ stated that he "considered
the assessments offered by the claimant's treating doctors (e.g.
Exhibit 12F).

Their opinions are not supported by objective

13

The ALJ also listed the medications prescribed for
plaintiff by Dr. Reddy.
26

clinical findings, and are inconsistent with other substantial
evidence.

Therefore, these opinions are accorded little weight"

(Tr. 27).

The ALJ did not address how application of the factors

identified above resulted in a determination that the treating
sources opinions were entitled to only "little weight."
Even if the ALJ's conclusory discussion was sufficient
to explain why the opinions of the treating sources were not
entitled to controlling weight, it is insufficient to explain why
the ALJ accorded them only "little weight."

The ALJ failed

entirely to discuss any of the factors set forth above, and this
fact alone warrants a remand.
[U]nder the regulations, see 20 C.F.R. §
404.1527(d)(2), the Commissioner is required to provide
"good reasons" for the weight she gives to the treating
source's opinion. See Schaal v. Apfel, 134 F.3d 496,
505 (2d Cir. 1998). This requirement greatly assists
our review of the Commissioner's decision and "let[s]
claimants understand the disposition of their cases."
Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999). We
do not hesitate to remand when the Commissioner has not
provided "good reasons" for the weight given to a
treating physician[']s opinion and we will continue
remanding when we encounter opinions from ALJ[]s that
do not comprehensively set forth reasons for the weight
assigned to a treating physician's opinion.
Halloran v. Barnhart, supra, 362 F.3d at 32-33; accord Sanders v.
Comm'r of Soc. Sec., 506 F. App'x 74, 77 (2d Cir. 2012) (noting
that the Court of Appeals has "consistently held that the failure
to provide good reasons for not crediting the opinion of a

27

claimant's treating physician is a ground for remand"); Petrie v.
Astrue, 412 F. App'x 401, 406 (2d Cir. 2011) ("When an ALJ
refuses to give controlling weight to the medical opinion of a
treating physician, he/she must consider various 'factors' in
deciding how much weight to give the opinion."); Gunter v.
Comm'r of Soc. Sec., 361 F. App'x 197, 199-200 (2d Cir. 2010)
(ALJ's rejection of a treating physician's opinion "'because it
is not consistent with the substantial evidence of record' . . .
fall[s] far short of the ALJ's duty to provide 'good reasons' for
rejecting a treating physician's opinion."); Ellington v. Astrue,
supra, 641 F. Supp. 2d at 330.
On remand, the ALJ should explain specifically not only
why he is not according the opinions of plaintiff's treating
physicians controlling weight but also why he is according them
"little weight."

b.

Duty to
Develop the Record

The ALJ's assessment of Dr. Publico's opinion is also
problematic because he failed to re-contact Dr. Publico regarding
the absence of supporting information in the record.

The ALJ has

"an affirmative obligation to fully develop the administrative
record."

Calzada v. Astrue, 753 F. Supp. 2d 250, 269 (S.D.N.Y.

28

2010) (Sullivan, D.J.) (adopting Report & Recommendation); Schaal
v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998); see Tejada v. Apfel,
supra, 167 F.3d at 774.

"The non-adversarial nature of a Social

Security hearing requires the ALJ 'to investigate the facts and
develop the arguments both for and against granting benefits.'"
Devora v. Barnhart, 205 F. Supp. 2d 164, 172 (S.D.N.Y. 2002)
(Gorenstein, M.J.), quoting Sims v. Apfel, 530 U.S. 103, 111
(2000).

This duty is even more important when the information

concerns a claimant's treating source.

Devora v. Barnhart,

supra, 205 F. Supp. 2d at 172-73; see 20 C.F.R. § 416.912(e)
(2011).
[M]oreover, . . . an ALJ cannot reject a treating
physician's diagnosis without first attempting to fill
any clear gaps in the administrative record. See
Schaal, 134 F.3d at 505 ("[E]ven if the clinical findings were inadequate, it was the ALJ's duty to seek
additional information from [the treating physician]
sua sponte."); see also Hartnett v. Apfel, 21 F. Supp.
2d 217, 221 (E.D.N.Y. 1998) ("[I]f an ALJ perceives
inconsistencies in a treating physician's reports, the
ALJ bears an affirmative duty to seek out more information from the treating physician and to develop the
administrative record accordingly."). In fact, where
there are deficiencies in the record, an ALJ is under
an affirmative obligation to develop a claimant's
medical history "even when the claimant is represented
by counsel or . . . by a paralegal." Perez, 77 F.3d at
47; see also Pratts, 94 F.3d at 37 ("It is the rule in
our circuit that 'the ALJ, unlike a judge in a trial,
must [her]self affirmatively develop the record' in
light of 'the essentially non-adversarial nature of a
benefits proceeding.' This duty . . . exists even when
. . . the claimant is represented by counsel.") (citations omitted) (alterations in original).
29

Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999); Butts v.
Barnhart, supra, 388 F.3d at 386; Echevarria v. Sec'y of Health &
Human Servs., 685 F.2d 751, 755 (2d Cir. 1982); Norman v. Astrue,
supra, 912 F. Supp. 2d at 42; Vega v. Astrue, 08 Civ. 1525
(LAP)(GWG), 2010 WL 2365851 at *2 (S.D.N.Y. June 10, 2010)
(Preska, C.J.); Rivera v. Comm'r of Soc. Sec., 728 F. Supp. 2d
297, 321-22 (S.D.N.Y. 2010) (Sullivan, D.J.) (adopting Report &
Recommendation).
In plaintiff's case, the ALJ noted that "Dr. Publico
limits the claimant to less than sedentary [work] based on a knee
sprain as well as claimant's other impairments (Exhibit 12F).
However, there are no other records by Dr. Publico that support[]
such restrictive physical limitations, nor is there any explanation" (Tr. 27).

The ALJ found that Dr. Publico's opinion should

be accorded limited weight because it was "not supported by
objective clinical findings" (Tr. 27).

The ALJ appears to have

discredited Dr. Publico's conclusions regarding plaintiff's
functional limitations by relying on the absence of either
supporting documents in the record by Dr. Publico or a more
expansive discussion by Dr. Publico in the report itself (see Tr.
27).

Dr. Publico's questionnaire appears to refer to prior

examinations on June 3, 2009 and November 24, 2009 (see Tr. 501),
but there are no records or notes from these examinations in the
30

record.

There is no indication in the record that, before

discounting Dr. Publico's opinion, the ALJ requested Dr.
Publico's treatment records or re-contacted Dr. Publico in order
to clarify the doctor's conclusions.
The Commissioner argues that there was no need to recontact Dr. Publico because her report contains adequate information for the ALJ to assess plaintiff's alleged disability (Comm'r
Mem. at 20).

However, there is clearly not enough information in

Dr. Publico's report for the ALJ to perform the analysis necessary to determine the weight to be accorded to a treating physician's opinion, had the ALJ attempted to do so.

The parties

disagree over the length of Dr. Publico's treatment (see Pl.'s
Mem. at 19; Comm'r Mem. at 19), one of the factors that is
required to be considered under the treating physician rule, see
20 C.F.R. § 416.927(d)(2)(i) (2011).

The report is also unclear

as to how often or what treatment Dr. Publico provided.

The only

condition listed in her report that was not diagnosed "by history" appears to be chronic pain, but there is no further information on this general symptom (see Tr. 501).

Moreover, it is

unclear whether the limitations Dr. Publico (a physiatrist) found
are due to physical rather than mental conditions.
The ALJ was obligated to clarify these gaps in the
record.

See e.g., Rosa v. Callahan, supra, 168 F.3d at 79-80.
31

The physical evidence in this case is far from conclusive.

Cf.

Perez v. Chater, supra, 77 F.3d at 48 (no need for remand to recontact physician who ordered CT and MRI tests when those tests
provided adequate information to determine lack of disability).
Because the ALJ failed to request additional information, he "was
left to base [his] conclusions on incomplete information."
Rosa v. Callahan, supra, 168 F.3d at 79-80.

See

It was incumbent on

the ALJ to obtain the treatment notes or to re-contact Dr.
Publico regarding the conclusions in her questionnaire before
rejecting her opinion as insufficiently supported.

See Rosado v.

Barnhart, 290 F. Supp. 2d 431, 440 (S.D.N.Y. 2003) (Marrero,
D.J.) ("The ALJ cannot rely on the absence of evidence, and is
thus under an affirmative duty to fill any gaps in the record."
(emphasis in original)); Cleveland v. Apfel, 99 F. Supp. 2d 374,
380 (S.D.N.Y. 2000) (Scheindlin, D.J.).
The above legal errors regarding the application of the
treating physician rule and the duty to develop the record
warrant remand.

See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.

1999) ("Failure to provide explicit 'good reasons' for not
crediting the opinion of a claimant's treating physician is a
ground for remand."); Calabrese v. Astrue, 592 F. Supp. 2d 379,
385 (W.D.N.Y. 2009), aff'd, 358 F. App'x 274 (2d Cir. 2009)
(legal errors are grounds for remand).
32

2.

Plaintiff's
Credibility

Plaintiff also claims that the ALJ erred in assessing
her credibility when he failed to provide specific reasons for
his findings (Pl.'s Mem. at 21).

In addition, plaintiff asserts

that the ALJ applied the incorrect legal standard when making the
credibility determination (Pl.'s Mem. at 21).

The Commissioner

responds that the ALJ did in fact provide specific reasons for
discrediting plaintiff's testimony (Comm'r Mem. at 21) and that
the legal standard the ALJ employed when making this determination was correct, notwithstanding any boilerplate language
(Comm'r Mem. at 23).

a.

Credibility
Assessment

It is "within the discretion of the [Commissioner] to
evaluate the credibility of plaintiff's complaints and render an
independent judgment in light of the medical findings and other
evidence regarding the true extent of such symptomatology."
Gernavage v. Shalala, 882 F. Supp. 1413, 1419 (S.D.N.Y. 1995)
(Leisure, D.J.); accord Mimms v. Heckler, 750 F.2d 180, 186 (2d
Cir. 1984); Evans v. Astrue, 783 F. Supp. 2d 698, 710-11
(S.D.N.Y. 2011) (Gorenstein, M.J.); see Aponte v. Sec'y, Dep't of

33

Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984); Carroll
v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.
1983).

When determining a claimant's RFC, the ALJ is required to

take the claimant's reports of pain and other limitations into
account.

20 C.F.R. § 416.929; see McLaughlin v. Sec'y of Health,

Educ. & Welfare, 612 F.2d 701, 704-05 (2d Cir. 1980).

The ALJ is

not required to accept the claimant's subjective complaints; he
may exercise discretion in weighing the credibility of the
claimant's testimony in light of the other evidence in the
record.

Gernavage v. Shalala, supra, 882 F. Supp. at 1419;

accord Mimms v. Heckler, supra, 750 F.2d at 186; Richardson v.
Astrue, 09 Civ. 1841(SAS), 2009 WL 4793994 at *6 n.97 (S.D.N.Y.
Dec. 14, 2009) (Scheindlin, D.J.).
The regulations provide a two-step process for evaluating a claimant's assertions of pain and other limitations. At the first step, the ALJ must decide whether
the claimant suffers from a medically determinable
impairment that could reasonably be expected to produce
the symptoms alleged. 20 C.F.R. § 404.1529(b). That
requirement stems from the fact that subjective assertions of pain alone cannot ground a finding of disability. 20 C.F.R. § 404.1529(a). If the claimant does
suffer from such an impairment, at the second step, the
ALJ must consider "the extent to which [the claimant's]
symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence" of
record. Id.
Genier v. Astrue, supra, 606 F.3d at 49 (emphasis in original).

34

The ALJ must explain his decision to reject plaintiff's
statements "'with sufficient specificity to enable the [reviewing] Court to decide whether there are legitimate reasons for the
ALJ's disbelief' and whether his decision is supported by substantial evidence."

Calzada v. Astrue, supra, 753 F. Supp. 2d at

280, quoting Fox v. Astrue, 6:05-CV-1599 (NAM/DRH), 2008 WL
828078 at *12 (N.D.N.Y. Mar. 26, 2008).

"The reasons for the

credibility finding must be grounded in the evidence and articulated in the determination or decision."

SSR 96-7p, 1996 WL

374186 at *4 (July 2, 1996); Genier v. Astrue, supra, 606 F.3d at
49; Alcantara v. Astrue, 667 F. Supp. 2d 262, 277 (S.D.N.Y. 2009)
(Sullivan, D.J.) (adopting Report & Recommendation).

The ALJ

must specifically consider particular factors, including:

(1)

plaintiff's "daily activities," (2) "location, duration, frequency, and intensity" of plaintiff's symptoms, (3) "[f]actors
that precipitate and aggravate" plaintiff's symptoms, (4) "type,
dosage, effectiveness, and side effects of any medication"
plaintiff takes for her symptoms, (5) other treatment plaintiff
receives for relief from her symptoms, (6) "[a]ny measures other
than treatment" plaintiff uses for relief from her symptoms and
(7) "[a]ny other factors" regarding plaintiff's limitations
resulting from her symptoms.

SSR 96-7p, supra, at *3.

35

There is no such discussion in the ALJ's opinion in
this case (see Tr. 26).

Here, the ALJ's analysis of plaintiff's

statements regarding her impairments consists entirely of the
following:

"The undersigned finds that the claimant's medically

determinable impairments could reasonably be expected to cause
the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent
with the above RFC assessment" (Tr. 26).

These statements are

unaccompanied by any analysis of the factors relevant to assessing the credibility of plaintiff's statements as required by the
regulations, 20 C.F.R. § 416.929(c), or any specifics regarding
how plaintiff's statements were inconsistent with the medical
record.

Such a perfunctory evaluation of plaintiff's credibility

is insufficient.

See Kane v. Astrue, 942 F. Supp. 2d 301, 314

(E.D.N.Y. 2013); Seabrook v. Astrue, 11 Civ. 5642 (GBD)(KNF),
2013 WL 1340134 at *3 (S.D.N.Y. Mar. 26, 2013) (Daniels, D.J.)
(adopting Report & Recommendation); Maline v. Astrue, 08-CV-1712
(NGG)(CP), 2010 WL 4258259 at *5 (E.D.N.Y. Oct. 21, 2010).
The Commissioner argues that other portions of the
ALJ's decision reference plaintiff's daily activities and her
prescribed medications, which are two factors relevant to assessing the credibility of plaintiff's statements regarding the
36

severity and limiting effects of her symptoms (Comm'r Mem. at
22).

Bare references, especially references scattered throughout

the ALJ's opinion, cannot stand in the place of the required
analysis.

See SSR 96-7p, supra, at *2 ("It is not sufficient for

the adjudicator to make a single, conclusory statement that 'the
individual's allegations have been considered' or that 'the
allegations are (or are not) credible.'").

b.

Credibility
Standard

It also appears that the ALJ used an incorrect legal
standard to evaluate plaintiff's credibility.

The ALJ wrote that

"the claimant's statements concerning the intensity, persistence
and limiting effects of [her] symptoms are not credible to the
extent they are inconsistent with the above RFC assessment" (Tr.
26).

This language suggests that the ALJ "made a determination

with respect to plaintiff's overall RFC and then used that RFC to
discount plaintiff's non-conforming allegations and resulting
limitations."

Norman v. Astrue, supra, 912 F. Supp. 2d at 86.

Such analysis constitutes legal error.

As the Honorable Andrew

J. Peck, United States Magistrate Judge, has explained:
In order to take proper account of the claimant's
symptoms, the ALJ should first determine the extent to
which the claimant's symptoms are credible in light of
the objective record evidence, and then use that find37

ing as one aspect of the RFC analysis. Determining the
RFC first and then measuring the claimant's credibility
by that yardstick reverses the standard in a way that
is not only illogical, but also prejudicial to the
claimant.
Cruz v. Colvin, 12 Civ. 7346 (PAC)(AJP), 2013 WL 3333040 at *16
(S.D.N.Y. July 2, 2013) (Peck, M.J.) (Report & Recommendation);
Norman v. Astrue, supra, 912 F. Supp. 2d at 44, citing Meadors v.
Astrue, 370 F. App'x 179, 184 (2d Cir. 2010); see also Taylor v.
Comm'r of Soc. Sec., 13 Civ. 5995(VB), 2014 WL 2465057 at *12
(S.D.N.Y. May 21, 2014) (Briccetti, D.J.) (adopting Report &
Recommendation); Agapito v. Colvin, 12 Civ. 2108 (PAC)(HBP), 2014
WL 774689 at *22 (S.D.N.Y. Feb. 20, 2014) (Crotty, D.J.) (adopting Report & Recommendation); Seabrook v. Astrue, supra, 2013 WL
1340134 at *3.
The Commissioner argues that various decisions from
this Circuit have held to the contrary and cites three cases in
support of this contention (Comm'r Mem. at 23).

But in each of

those cases, the Court found no legal error notwithstanding the
language that plaintiff's statements were not "credible to the
extent they are inconsistent with the RFC" because the ALJ had
engaged in detailed analysis that showed that plaintiff's statements were considered before the ALJ made an RFC determination.
See Diakogiannis v. Astrue, 975 F. Supp. 2d 299, 318 (W.D.N.Y.
2013) ("The ALJ specifically stated that she assessed Diako38

giannis's statements concerning the intensity, persistence and
limiting effects of his symptoms '[a]fter careful consideration
of the evidence.'"); Luther v. Colvin, 12-CV-6466, 2013 WL
3816540 at *7-*8 (W.D.N.Y. July 22, 2013) (finding proper credibility assessment when the ALJ had engaged in lengthy and detailed analysis of claimant's credibility); Briscoe v. Astrue,
892 F. Supp. 2d 567, 585 (S.D.N.Y. 2012) (Gorenstein, M.J.)
("[T]his statement does not indicate that the RFC assessment was
a basis for a finding of lack of credibility.

Instead, the ALJ's

decision discusses in detail the aspects of Briscoe's testimony
that were contradicted by other evidence in the record, and
explains which aspects of Briscoe's testimony he found credible.
Only after this analysis does the ALJ assess the remaining
evidence relevant to Briscoe's RFC." (citations omitted)).
Where, as here, the ALJ has provided no analysis from
which it can be determined whether the ALJ considered plaintiff's
credibility before or after making an RFC determination, the ALJ
has committed legal error.

See e.g., Taylor v. Comm'r of Soc.

Sec., supra, 2014 WL 2465057 at *12; Box v. Colvin, 12-CV-1317
(ADS), 2014 WL 997553 at *21 (E.D.N.Y. Mar. 14, 2014); Agapito v.
Colvin, supra, 2014 WL 774689 at *22; Wojciechowski v. Colvin,
967 F. Supp. 2d 602, 612-13 (N.D.N.Y. 2013) (adopting Report &
Recommendation); Norman v. Astrue, supra, 912 F. Supp. 2d at 86.
39

Accordingly, I conclude that the ALJ's credibility
assessment also warrants a remand.

3.

Additional
Evidence

Plaintiff submitted additional evidence to the Appeals
Council after the ALJ's decision (see Tr. 4).

The additional

evidence included Impairment Questionnaires from Dr. Rosen (Tr.
796-803) and Dr. Wiegand (Tr. 807-14), both of whom were plaintiff's treating psychiatrists, as well as a Wellness Report from
Dr. Rosen (Tr. 805-06).
Plaintiff argues that the new evidence submitted to the
Appeals Council after the ALJ's decision "makes clear that the
ALJ's mental RFC finding for Ms. Barnwell is not supported by
substantial evidence" (Pl.'s Mem. at 23).

The Commissioner

responds that the new evidence would not have changed the ALJ's
decision (Comm'r Mem. at 24-25).
Here, the Appeals Council did consider the new evidence
from Dr. Rosen and Dr. Wiegand when determining whether to grant
review (Tr. 1-2; Pl.'s Mem. at 23; Comm'r Mem. at 24), and the
parties do not dispute that the Appeals Council should have done
so.

Instead, they dispute whether the additional evidence

establishes that there was a lack of substantial evidence for the

40

ALJ's decision and that a remand is warranted (see Pl.'s Mem. at
23; Comm'r Mem. at 25).

I need not decide whether the ALJ's

decision was supported by substantial evidence, as legal error
requires remand.

See Schaal v. Apfel, supra, 134 F.3d at 504;

Johnson v. Bowen, supra, 817 F.2d at 986.
Here, the Appeals Council merely stated in its denial
that "we considered . . . the additional evidence" (Tr. 1).

A

more detailed assessment of the additional evidence is required.
"When a claimant properly presents new evidence, and the Appeals
Council denies review, the Appeals Council must show in its
written denial that it has adequately evaluated the new evidence."

Flowers v. Comm'r of Soc. Sec., supra, 441 F. App'x at

745, quoting Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980).
Because the additional evidence at issue here is from treating
sources, the Appeals Council was required to comply with the
regulations applicable to the assessment of opinions from treating sources.

See Shrack v. Astrue, supra, 608 F. Supp. 2d at

302, citing Snell v. Apfel, supra, 177 F.3d at 134; see also
Farina v. Barnhart, 04-CV-1299 (JG), 2005 WL 91308 at *5
(E.D.N.Y. Jan. 18, 2005) (remanding because "Appeals Council
makes no mention of this new evidence in its denial of review,
and does not provide the type of explanation required under the
treating physician rule").
41

On remand, the ALJ should analyze Dr. Rosen and Dr.
Wiegan's reports pursuant to the rules applicable to treating
sources.

The ALJ need only consider these sources to the extent

that they relate to the relevant period.

IV.

Conclusion

Accordingly, for all the foregoing reasons, plaintiff's
motion for judgment on the pleadings in granted (Docket Item 11),
and the Commissioner's cross-motion is denied (Docket Item 24)
The case is remanded to the Commissioner pursuant to sentence
four of 42 U.S.C.
with this opinion.

§

405(g) for further proceedings consistent
The Clerk of the Court is directed to close

the case.
Dated:

New York, New York
September 19, 2014
SO ORDERED

United States Magistrate Judge
Copies transmitted to:
Charles E. Binder, Esq.
Binder and Binder P.C.
Suite 520
60 East 42nd Street
New York, New York 10165

42

Sixtina Fernandez, Esq.
Special Assistant United States Attorney
Southern District of New York
Suite 3904
26 Federal Plaza
New York, New York 10278

43