Prince v. Commissioner of Social Security

Filing 35

ORDER adopting 34 Report and Recommendations, re: 12 Motion for Judgment on the Pleadings filed by Commissioner of Social Security, 24 Motion for Judgment on the Pleadings filed by Nathaniel L. Prince. The Court adopts Magistrate Judge Pe ck's Report and Recommendation as its opinion. The Commissioner's motion for judgment on the pleadings (Dkt. No. 12) is denied, and Prince's motion for judgment on the pleadings (Dkt. No. 24) is granted to the extent of remanding the case to the Commissioner for further proceedings consistent with the Magistrate Judge's Report and Recommendation. The Clerk of the Court is directed to remove docket items 12 and 24 from the court list of open motions and to close the file. SO ORDERED. (Signed by Judge Thomas P. Griesa on 3/27/2015) (kl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------X
NATHANIEL L. PRINCE,
Plaintiff,

13 Civ. 7666 (TPG)

-against-

ORDER

CAROLYN W. COL YIN, Commissioner of
Social Security,
Defendant.

-------------------------------------------X
On March 9, 2015, this court received a Report and Recommendation from
Magistrate Judge Peck regarding the above-captioned case. Since that time, no
objections have been received, and no adjournment of the due date was requested.
The Court adopts Magistrate Judge Peck's Report and Recommendation as its
opinion. The Commissioner's motion for judgment on the pleadings (Dkt. No. 12) is
denied, and Prince's motion for judgment on the pleadings (Dkt. No. 24) is granted to the
extent of remanding the case to the Commissioner for further proceedings consistent with
the Magistrate Judge's Report and Recommendation.
The Clerk of the Court is directed to remove docket items 12 and 24 from the
court list of open motions and to close the file.

SO ORDERED.

Dated: New York, New York
March 27, 2015

Thomas P. Griesa
U.S.D.J.

Case 1:13-cv-07666-TPG-AJP Document 34 Filed 03/09/15 Page 1 of 41

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------X
NATHANIEL L. PRINCE,
13 Civ. 7666 (TPG) (AJP)

Plaintiff,

REPORT AND RECOMMENDATION

-againstCAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.

-----------------------------------X
ANDREW J. PECK, United States Magistrate Judge:
To the Honorable Thomas P. Griesa, United States District Judge:
Nathaniel Prince, represented by counsel, brings this action pursuant to § 205(g) of
the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of
Social Security (the "Commissioner") denying him Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI") benefits. (Dkt. No.2: Compl.) Presently before the Court
are the parties' cross-motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt.
No. 12: Gov't Motion; Dkt. No. 24: Prince Motion.)
For the reasons set forth below, the Commissioner's motion for judgment on the
pleadings (Dkt. No. 12) should be DENIED, and Prince's motion for judgment on the pleadings
(Dkt. No. 24) should be GRANTED to the extent of remanding the case to the Commissioner for
further proceedings consistent with this Report and Recommendation.

FACTS
Prior Proceedings
Prince applied for DIB on November 20, 2012 and for SSI on November 21, 2012,

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alleging disability since September 10,2012. (Dkt. No.9: Administrative Record ("R.") 119, 129.)
The Social Security Administration ("SSA") denied Prince's application on February 28,2013. (R.
60-73.) On August 1, 2013, Prince had a hearing before Administrative Law Judge ("ALI") Mark
Hecht. (R. 31-59.) On August 15,2013, ALI Hecht denied Prince's claim. (R. 7-20.) The Appeals
Council denied review on October 9, 2013. (R. 1-3.) The period at issue for Prince's application
runs from September 10,2012, when Prince alleged he became disabled, through August 15,2013,
the date of ALI Hecht's decision. (R. 20.)

Non-Medical Evidence & Testimony
Prince was born in January 1963 and was between forty-nine and fifty years old
during the period at issue. (R. 119.) Prince is a high school graduate with one year of college
courses. (R. 38.) Prince's past relevant work includes a job as a helper on a water delivery truck.
(R. 38, 172, 310.)
Prince lives with his girlfriend and three children. (R. 49, 310.) He spends his days
caring for his three-year-old autistic son, his infant child and a pet cat. (R. 49, 148-49, 313.) He
uses public transportation and rides a bicycle. (R. 151-53.) In January 2013, he reported that his
girlfriend does all the cooking, although he prepared meals of cereal, tuna, and peanut butter and
jelly sandwiches daily. (R. 150-51.) Prince also reported needing no help to change cat litter, sweep
and mop the floor or wash dishes. (R. 151.) He went outside daily in the morning and stated that
he could walk, ride a bicycle and use public transportation.

ili!.:)

Prince visits doctors three times

per month. (R. 152.) Prince reported avoiding crowds in order to avoid triggering his panic attacks,
which he said occur daily and are characterized by shortness of breath, anger, fast heartbeat and
shaking. (R. 149, 152-53, 161.)
Prince testified that since witnessing the September 11, 2001 attacks, he has had

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difficulty with crowds. (R. 37.) For seven years after the attack, Prince worked on a truck that
delivered water. (R. 38-39.) He lost his job in 2008 due to a change in the company's ownership,
and not because he could not work. (R. 38-39.) After Prince was laid off, he was unable to find any
work. (R. 40, 51.)
Prince takes medication that helps with his bipolar disorder but he has side effects
including inability to walk straight. (R. 44.) Prince claims to suffer from post-traumatic stress
disorder ("PTSD") from the September 11th terrorist attacks and to see "certain things," but he has
never received treatment for the condition. (R. 44-45.) Prince also claimed to experience back pain
every other day in his middle and lower back that prevents him from moving, but when asked about
the lack of treatment, he said "nothing wrong with my back but my doctors told me it's something
wrong with my back." (R. 45-46.) Prince was diagnosed with ADHD as a child, attended special
education classes, and is dyslexic. (R. 46-4 7.) Prince testified that he sometimes experiences severe
chest pain and was diagnosed with a heart murmur at Mt. Sinai in April2013. (R. 47.) He has not
been prescribed any medication for his back pain or a heart condition. (R. 46-47.)
Prince testified that he can sit for only seven minutes before needing to get up and
walk and could stand for only ten minutes before needing to move. (R. 48.) Prince further claimed
he could walk only one block. (MJ Prince previously reported being able to walk one mile. (R.
155.) He claimed that his right hand had been "locking up" since March 2013, and that he has not
used a computer since then. (R. 48-49.) Prince testified that he cannot do any household chores,
including grocery shopping, cooking, cleaning or laundry. (R. 49.) His hobby is playing chess at
a friend's house; he and his friend "sit there and we play a couple games of chess." (R. 50.)
Prince's girlfriend testified that he got "antsy" in crowds due to his anxiety. (R. 53.)
She stated that Prince had anxiety since she lost her job in 2009. (ld.) She stated that before Prince

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began anxiety treatment in September 2012, he self-medicated with illegal drugs but stopped in June
2012. (R. 55-56.) She described the side effects of Prince's current medication as including
drowsiness and lethargy. (R. 57-58.) She also testified that Prince could not sit still because of his
ADHD, unless it is something he "really want[s] to do, as in chess .... " (R. 58.)

Medical Evidence
Prior To September 2012
In January 2011, Dr. Neha Garg at the Lincoln Hospital outpatient clinic saw Prince
to follow-up on an asthma treatment plan. (R. 260-63.) Dr. Garg noted that Prince recently had
been seen in the emergency room for asthma after running out of medication. (R. 261.) Dr. Garg
diagnosed Prince with moderate persistent asthma. (R. 262.)
In February 2011, Prince was seen at the Lincoln Hospital emergency room for
shortness ofbreath. (R. 253-59, 264-65.) He received treatment for acute asthma exacerbation due
to exposure to automobile fumes and was discharged home. (R. 251, 254-5 5, 265.) Prince returned
to the emergency room for asthma exacerbations in April, May, June and December 2011. (R. 22630, 236-40, 244-45, 246-49, 271-75.) During his July 2011 visit, Prince stated that he had not been
in compliance with his asthma medication. (R. 233.)
During a May 2011 visit to the Lincoln Hospital clinic, Prince admitted to heavy
binge drinking several times a week. (R. 242.) Dr. Andrew Burger assessed Prince with "[l]ate
effect ethanol excess with blackout spells and dizziness." (!QJ Dr. Burger noted that Prince was
alert and oriented and had normal cognition. (!QJ At an August 2011 visit to the Lincoln Hospital
clinic, Prince tested positive for cocaine, although he denied using it. (R. 220.) In September 2011,
Prince was discharged from the mental health clinic at Lincoln Hospital because he had attended
only three sessions of an alcohol and drug rehabilitation program. (R. 231.)

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In January 2012, Prince was seen at the Mount Sinai outpatient clinic for his asthma,
which he reported was triggered by dust and weather changes. (R. 289-90.) Prince stated that he
used Albuterol when he exercised but otherwise did not need it. (R. 289.) Physical examination of
Prince was unremarkable, including regular heart rhythm, lungs clear to auscultation,.!! without
wheezing or rales,~ nonnal gait, and no clubbing, cyanosisl" or edema.±! (R. 290.) Prince was fully
alert and oriented.

CMJ

Prince was diagnosed with asthma and bipolar disorder.

c.!f!:)

In April2012, Prince visited the Mount Sinai outpatient clinic and reported that he
last used cocaine two weeks earlier and drank six beers a week. (R. 285-86.) Prince stated that he
used Albuterol five times a week, especially before exercising and when walking up the stairs in the
subway. (R. 285.) His physical examination results included normal gait, no clubbing, cyanosis,
or edema and lungs clear to auscultation with no wheezing or rales. (R. 286.) Prince reported
current cocaine use and that he was participating in a drug recovery program at Lincoln Medical
Center. (R. 285-87.)

Medical Evidence From September 2012 Through August 2013
AHMed Rehab of NY
From September 2012 through July 2013, Prince received treatment at AHMed and

1/

"Auscultation" is the act oflistening for sounds within the body, chiefly for ascertaining the
condition of the lungs. Dorland's Illustrated Medical Dictionary at 180 (32d ed. 2012).

2/

A "rale" is a discontinuous sound heard primarily during inhalation. Dorland's Illustrated
Medical Dictionary at 1576.

3/

"Cyanosis" is a bluish discoloration, especially of the skin and mucous membranes due to
the excessive concentration of blood that does not contain oxygen. Dorland's Illustrated
Medical Dictionary at 452.

4/

"Edema" refers to the presence of abnormally large amounts of fluid in the intercellular
tissue spaces of the body. Dorland's Illustrated Medical Dictionary at 593.

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Rehabilitation ofNY. (R. 197-210, 324.) Following an initial evaluation by a nurse practitioner,
Prince was diagnosed with bipolar disorder, although the nurse's notes do not include any clinical
findings. (R. 210.) Prince was prescribed Zyprexa and Klonopin. (R. 210.)
On September 27, 2012, Prince was seen by treating psychiatrist Dr. Edward
Fruitman. (R. 208.) Prince stated that in March 2012, the New York City Administration for
Children's Services had taken his children away as a result of drug use by his girlfriend and him, but
that the children since had been returned. (!QJ Prince was living with all three of his children, then
ages fifteen, two, and five months. (Id.) Dr. Fruitman diagnosed Prince with bipolar disorder. (I d.)
On November 12, 2012, Prince saw Dr. Fruitman again and reported felling "OK."
(R. 205.) Prince was fully oriented, had clear speech and was goal directed. (!QJ Dr. Fruitman
wrote a letter stating that Prince was attending AllMed for mental health services. (R. 206.) The
letter noted Prince's report that his medications made him drowsy but were helping with his mood
disorder. (!.QJ The letter also stated that Prince was compliant with and receptive to his monthly
psychiatric treatment. (ld.) On November 26, 2012, Dr. Fruitman noted that Prince was in a good
mood, and Prince stated that his medication no longer made him tired. (R. 203.) Dr. Fruitman
prepared another letter, which stated that Prince's medication was helping with his anxiety and mood
swings, and "his body has adjusted to the medication and he no longer gets drowsy upon intake."
(R. 204.)

On December 20, 2012, Dr. Fruitman found that Prince's mood was stable, his
anxiety was controlled, and he had no side effects from medication. (R. 202.) On December 27,
2012, Prince reported to Dr. Fruitman that he felt good because he was with his daughter for
Christmas. (R. 198.) Dr. Fruitman noted that Prince had family support. (Id.) Once again, Dr.
Fruitman wrote a letter stating that Prince was compliant and "doing well" with his mental health

~·--

-~

·~-~-·-·-------------------

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treatment. (R. 199-200.)
On July 17, 2013, Dr. Fruitman prepared another letter concerning Prince's condition
and treatment. (R. 324.) He stated that Prince's current diagnoses were PTSD, schizoaffective
disorder and anxiety. (!QJ Dr. Fruitman also stated that Prince received "pain management
services" at the clinic and needed "to use his single axis cane for his pain management
regimen/myalgia." (ld.) Dr. Fruitman concluded that Prince "currently is unfit to work." (Id.)

Lincoln Medical Center
Prince was seen by the Lincoln Medical emergency department for shortness of
breath on three occasions. (R. 218, 221-22, 223-25, 279-81.) On September 27, 2012, Prince was
seen for an acute asthma exacerbation and treated with Albuterol and Prednisone. (R. 223-25.)
Prince reported that he experienced asthma attacks "only with extreme physical exertion." (R. 224.)
Prince's chest x-rays were nonnal. (R. 218.) On November 27, 2012, Prince complained of
shortness ofbreath. (R. 221-22.) His oxygen saturation level was ninety-seven percent, with a peak
flow level of 220 liters per minute. (R. 221.) Prince received nebulizer treatment. (R. 222.) On
January 21, 2013, Prince again was seen for shortness of breath. (R. 279-81.) Prince reported that
he exercised seven times a week without exacerbation until that day. (R. 279.) Prince's oxygen
saturation was ninety-eight percent, with a peak flow level of 270 liters per minute, and his lungs
were clear, with no wheezing. (ld.) Prince received two Albuterol treatments and refused a third.
(R. 280.) His peak flow increased to 450 liters per minute. (kl)

Mount Sinai Medical Center Outpatient Treatment
On December 28, 2012, Prince was at Mt. Sinai Medical Center and received an
echocardiogram from Dr. Joseph Truglio. (R. 282, 304-05.) Dr. Truglio noted that Prince "often
forgets" to take his asthma medication. (R. 282.) Prince reported exercising for one hour each

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mornmg. (Id.) The EKG was abnonnal, showing a sinus rhythm with first-degree atrio-ventricular
block, and non-specific STand T wave abnormality anteriorly. (R. 304.) Acute ischemia21 could
not be excluded. (Id.)
Dr. Vinod Thukral

On January 29,2013, consultative internist Dr. Vinod Thukral examined Prince. (R.
316-19.) Prince's chief complaint was back pain, resulting from a sprain in 2008, precipitated by
standing for about ten to fifteen minutes, bending, lifting, pulling and pushing. (R. 316.) Prince said
that he had some relief with rest and pain medication. (!QJ Prince described a history of asthma
since 1963, and stated that it was triggered by weather changes and stress and relieved with an
inhaler. (!QJ Prince denied any hospital admissions, intubation or steroid dependence due to
asthma. (ld.) Prince reported that he went out for walks and socialized with friends, but was unable
to do cooking, cleaning, laundry or shopping due to his back pain. (R. 317.) Prince denied any
history of substance abuse. eM:_)
On examination, Prince was in no acute distress and had both a normal gait and
stance. (ld.) Prince performed a full squat and could walk on his heels and toes without difficulty.

eM:_) He did not require an assistive device, needed no help changing for the examination or getting
on or off the examination table and could rise from a chair without difficulty. (ld.) Prince had a
regular heart rhythm with no audible murmur, gallop or rub. (R. 318) His chest and lungs were
normal in diameter, clear to auscultation, had nonnal percussion and diaphragmatic motion, and

51

"Ischemia" refers to a deficiency ofblood in a part, usually due to functional constriction or
actual obstruction of a blood vessel. Dorland's Illustrated Medical Dictionary at 961 (32d
ed. 2012).

- - - - · - - - - - - - - - · - ----------------·--·---···-

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there was no significant chest wall abnormality. (Id.) Prince had no scoliosis,§! kyphosis,2i or
abnormality in his thoracic spine. (ld.) His straight leg raising test was negative bilaterally. (!QJ
X-rays of his thoracic and lumbar spine were negative. (R. 319-21.)
Prince had a full range of motion in his shoulders, elbows, forearms, wrists, hips,
knees and ankles bilaterally, with no evidence of subluxations, contractures, ankylosis or thickening.
(R. 318.) His joints were stable and non-tender, with no redness, heat, swelling or effustion. (ld.)

Prince had no cyanosis, clubbing, edema, significant varicosities, or trophic changes in his
extremities. (Id.) Prince's hand and finger dexterity were intact, with full strength bilaterally. (R.
319.)
Dr. Thukral diagnosed Prince with upper and lower backache by history, asthma by
history, depression by history, and heart murmur by history. (!QJ Dr. Thukral opined that Prince
had no limitations in sitting, standing, bending, pulling, pushing, lifting, carrying or "other such
related activities." (ld.) Dr. Thukral recommended that Prince "avoid smoke, dust, or other
respiratory irritants due to asthma History." (R. 319.)
Dr. Michael Kushner
On January 29, 2013, consultative psychologist Dr. Michael Kushner examined
Prince. (R. 31 0-14.) Prince reported that he lived with his girlfriend and three children. (R. 3 10.)
He stated that he had a regular high school diploma. (!QJ Prince traveled to his appointment by
subway. (ld.) He and his girlfriend jointly managed the household money, and she did most

6/

"Scoliosis" is an appreciable lateral deviation in the nonnally straight vertical line of the
spine. Dorland's Illustrated Medical Dictionary at 1681 (32d ed. 20 12).

7/

"Kyphosis" is convexity in the curvature of the spine.
Dictionary at 992.

Dorland's Illustrated Medical

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household chores. (R. 312.) Prince reported that he socialized with others and had good family
relationships. (Id.) He reported that he exercised early in the morning and accompanied his children
to and from school, and spent most of his day with his infant child. (R. 312-13.) Prince denied any
history of drug or alcohol use. (R. 311.)
A mental status examination found Prince cooperative, with an adequate manner of
relating and adequate social skills and overall presentation. (!QJ His eye contact was appropriate,
but his motor behavior was somewhat restless. (Id.) Prince was coherent and goal directed, without
hallucinations, delusions or paranoia. (R. 312.) Prince had a full range of affect and appropriate
speech and thought content. (!QJ His mood was neutral, his sensorium was clear, and he was fully
oriented. (M.:.) Dr. Kushner evaluated Prince's attention and concentration, finding that Prince
"knew that 2 x 3 was 6, but said that 5 + 7 was 11," and that"[ w ]hen asked to count backwards from
20 by 3s [Prince] reported '20, 17, 13, 10, 7, 4, 1."' (!QJ With respect to recent and remote memory,
Prince could repeat three out of three objects immediately, but only one out of three after five
minutes. (Id.) Prince could repeat five digits forward and three backward. (Id.) Dr. Kushner
assessed Prince's cognitive functioning as somewhat below average, with a somewhat limited
general fund of infonnation. (M.:.) Prince's insight and judgment were fair. (M.:.)
Dr. Kushner diagnosed Prince with psychotic disorder, not otherwise specified. (R.
313.) He opined that Prince could follow and understand simple directions and instruction, perfonn
simple tasks independently, maintain a regular schedule, learn new tasks and possibly perfonn some
complex tasks under supervision.

(!QJ

Dr. Kushner further opined that Prince's psychiatric

impairments may impair his ability to maintain concentration and attention, make appropriate
decisions, relate adequately with others and appropriately deal with stress. (!QJ In sum, Dr.
Kushner's opinion was that "[t]he results of the present evaluation appear to be consistent with

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psychiatric problems and this may significantly interfere with [Prince's] ability to function on a daily
basis." (I d.)

Dr. L. Blackwell
On February 26, 20 13, Dr. L. Blackwell reviewed the medical evidence of record and
completed a psychiatric review form for Prince. (R. 66-67, 70-71.) Dr. Blackwell compared
Prince's mental impairments to the paragraph "B" criteria of section 12.04 of the listing of
impairments, 20 C.F.R. Part 404, SubpartP, Appendix 1 § 12.04. (R. 66-67.) Dr. Blackwell found
that Prince was mildly limited in his activities of daily living and social functioning, moderately
limited in maintaining concentration, persistence or pace, and had no episodes of decompensation.
(R. 67.) Dr. Blackwell opined that the evidence did not establish the presence of the§ 12.04 "C"
criteria.

(!gJ
Dr. Blackwell assessed Prince's mental residual functional capacity and found that

Prince had no limitations with respect to understanding and memory or in adaptation. (R. 70-71.)
Dr. Blackwell opined that Prince was not significantly limited in his ability to make simple workrelated decisions, carry out very short and simple instructions, sustain an ordinary routine without
special supervision, or work in coordination with or in proximity to others without being distracted
by them. (R. 71.) Dr. Blackwell opined that Prince was not significantly limited in his ability to
interact appropriately with the general public, ask simple questions or request assistance, get along
with co-workers or peers without distracting them or exhibiting behavioral extremes, maintain
socially appropriate behavior and adhere to basic standard of cleanliness and neatness. (Id.) Prince,
however, was moderately limited in his ability to carry out detailed instructions, maintain attention
and concentration for extended periods, perform activities within a schedule, maintain regular
attendance and be punctual within customary tolerances, complete a normal workday and workweek

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without interruptions from psychologically based symptoms, perfonn at a consistent pace without
an unreasonable number and length of rest periods, and accept instructions and respond
appropriately to criticism from supervisors. (R. 70-71.) Dr. Blackwell concluded that Prince could
"perfonn semi-skilled work on a sustained basis." (R. 71.)
SSA Decision-Maker McKercher
On February 27, 2013, non-physician SSA decision-maker P. McKercher assessed
Prince's physical residual functional capacity. (R. 68-70.) McKercher found that Prince could
occasionally lift or carry up to twenty pounds; frequently lift or carry up to ten pounds; stand, walk
or sit (with normal breaks) for about six hours in an eight-hour workday; and had postural
limitations of climbing ramps/stairs or ladders/ropes/scaffolds frequently. (R. 68-69.) McKercher
found that Prince should "[a]void concentrated exposure" to extreme cold, extreme heat, wetness,
humidity and "[f]umes, odors, dusts, gases, poor ventilation, etc." (R. 69.)

ALJ Hecht's Decision
On August 15,2013, ALJ Hecht denied Prince's claim for benefits. (R. 7-20.) ALJ
Hecht followed a five-step analysis, considering Prince's testimony and the medical record. (R. 1113.) At the first step, ALJ Hecht determined that Prince "has not engaged in substantial gainful
activity since September 10, 2012." (R. 13.)
At the second step, ALJ Hecht determined that Prince "had the following 'severe'
impairments: bronchial asthma, a bipolar disorder, and an anxiety disorder." (I d.) ALJ Hecht found
that Prince's alleged back pain was not a severe impairment because Prince's "allegations about back
pain are not supported by the medical record, and arc not credible." (Id.) ALJ Hecht noted that
Prince had not been prescribed pain medication; that his records from AllMed, Mt. Sinai and
Lincoln Medical Center contained no reference to back pain; and that although he alleged a history

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of back pam during his consultative examination with Dr. Thukral, the examination was
unremarkable, the x-rays were negative, and Dr. Thukral concluded that Prince has no limitations
for sitting, standing, walking, or lifting. (!QJ ALJ Hecht also noted Dr. Fruitman's July 2013 letter
stating that Prince uses a cane for pain management but making no diagnosis specific to back pain.
(R. 13-14.) ALJ Hecht wrote that with "no other mention of treatment for back pain, or even
complaints ofback pain anywhere in the treatment records, [he did] not accept [Dr. Fruitman's] brief
note as establishing that [Prince] has any musculoskeletal disorder that meets the 12-month
durational requirement or that causes any significant work related functional limitations." (R. 14.)
ALJ Hecht therefore determined that "the medical evidence fails to establish that [Prince] has any
'severe' impairment ofthe spine or any other disorder that causes the back pain alleged" by Prince.

iliU
At the third step, ALJ Hecht determined that Prince "does not have an impairment
or combination of impairments that meets or medically equals one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1." (Id.) ALJ Hecht found that Prince's asthma "clearly does
not meet or medically equal the requirements of section 3.03 for bronchial asthma." (!QJ ALJ
Hecht determined that

Prince's mental impairments "do not meet or medically equal the

requirements oflistings 12.04 (for affective disorders), or 12.06 (for anxiety disorders)." (!QJ ALJ
Hecht found that Prince has "mild significant restriction" in his activities of daily living, mild
limitations in social functioning, and "no more than moderate" difficulties with regard to
concentration, persistence or pace. (R. 14-15.) ALJ Hecht noted that Prince has had no episodes
of decompensation. (R. 15.)
ALJ Hecht found that Prince has the following residual functional capacity:
[H]e can sit, stand or walk for up to six hours, with nonnal breaks, in an eight hour

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workday, and lift/carry/push/pull objects weighing up to 20 pounds occasionally or
10 pounds occasionally (exertionallimitations). From an exertional standpoint, he
is limited to light work . . . . He is also limited to unskilled work involving the
performance of simple one or two [step] tasks, and is unable to work in environments
with high levels of respiratory irritants (non-exertionallimitations ).

iliU
ALJ Hecht "considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other evidence."

(MJ

He also "considered opinion evidence in accordance with the requirements of20 CFR 404.1527 and
416.927, and SSRs 96 2p, 96-Sp and 96 6p." (Id.) ALJ Hecht wrote:
The medical evidence shows that [Prince] has bronchial asthma, which is mild and
controlled. When seen in the Lincoln Medical Center emergency room in September
2012 for a cough and shortness of breath, [Prince] maintained that he gets short of
breath only on extreme exertion. In December 2012, he was seen at the Mt. Sinai
emergency room ... at which time it was noted that he was not compliant with his
asthma therapy. The consultative physical examination perfonned in January 2013
but Dr. Thukral was normal. The only restriction cited by Dr. Thukral was to avoid
respiratory irritants due to his asthma history.
[Prince] testified that he recently was diagnosed with a heart problem. A physical
examination in December 2012 at Mt. Sinai Hospital revealed a 2-3/6 mild systolic
murmur with no radiation, and an EKG at that time showed nonspecific ST and T
wave abnonnality. [Prince] reported no significant symptoms; the treatment notes
state that a follow up echocardiogram would be done. There is no additional
evidence to indicate that [Prince] was diagnosed with a serious cardiovascular
impairment.
A review of the record shows that there are no reports in the record that indicate that
[Prince] has any significant limitations for exertional activity due to asthma (or any
other medical impairment). In fact, the treatment records mention in December 2012
that [Prince] exercises regularly and [Prince] completed a report dated January 7,
2013 that he can walk one mile. I therefore conclude that from an exertional
standpoint, [Prince] is clearly capable of engaging in light work, and that his asthma
causes only a restriction from working in environments with high levels of
respiratory irritants. This was the conclusion of Dr. Thukral and Dr. Blackwell.
Their conclusions are consistent with the objective medical evidence and [Prince's]
reported activities and are afforded significant weight.
With respect to [Prince's] mental impairments, the record indicates that [Prince] has
been treated at Al!Med Medical and Rehabilitation since September 10, 2012. At the

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initial evaluation, [Prince] reported that he had a history of alcohol and cocaine abuse
discontinued four months prior. This is consistent with [Prince's] testimony at the
hearing. He also gave a history of being diagnosed with bipolar disorder. He was
prescribed Zyprexa and Klonipin. On November 12, 2012 he reported drowsiness
from his medications, but on November 26, 2012 and on later visits he reported that
his medications were no longer making him drowsy. No other side effects were
reported. The treatment notes do not include results of mental status exams.
However, on November 19, 2012, it was reported that he had no mood instability.
On December 27, 2012, he reported feeling good. On December 27, 2012, Dr.
Fruitman reported that [Prince] was doing well in treatment.
(R. 16, record citations omitted.)

ALJ Hecht went on to discuss Dr. Kushner's consultative

psychiatric evaluation in detail. (R. 16-17.) ALJ Hecht referred to Dr. Kushner's opinion that Prince
could "follow and understand simple directions and instructions, perform simple tasks
independently, maintain a regular schedule, learn new tasks, and may be able to perform some
complex tasks under supervision." (R. 17.) ALJ Hecht noted that Dr. Kushner "concluded that
[Prince's] ability to make appropriate decisions, maintain attention and concentration, relate
adequately with others, and appropriately deal with stress may be impaired by [his] psychiatric
problems." (R. 17, record citation omitted.) ALJ Hecht also observed that "[r]eview psychologist
Blackwell concluded in February 2013 that [Prince] had no more than moderate work-related
functional limitations in all areas of mental functioning and that his mental impairment was not
disabling." (ld., record citations omitted.)
In determining Prince's credibility, ALJ Hecht found that "[t]here is little objective
evidence of any impairment causing exertional limitations" and that Prince's testimony "is not
supported by any objective medical evidence in the record and is not at all credible." (Id.) With
respect to Prince's mental impairments, ALJ Hecht found that Prince's testimony was contradicted
by his employment history, his treatment records, and the results of his consultative examination.
(R. 17-18.) ALJ Hecht specifically noted that although the "consultative psychiatric examination

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16

did indicate some problems with concentration[,] ... the overall examination did not show disabling
symptoms and ... the results of the examination are somewhat put into question due to [Prince's]
lack of candor concerning his drug history." (R. 18.) ALJ Hecht detennined that"[ w ]hile it is clear
that [Prince] has a diagnosed mental illness, ... he has attempted to portray himself as a lot more
impaired than he actually is." (R. 17-18.)
ALJ Hecht next determined that Prince "is unable to perfonn his past relevant work"
as a truck helper "delivering bottled water from a truck," which "had medium exertional demands."
(R. 18.)
At the fifth step, ALJ Hecht found that" [c ]onsidering [Prince's] age, education, work
experience, and residual functional capacity, jobs exist in significant numbers in the national
economy that [Prince] could perform." (ld.) ALJ Hecht relied exclusively upon the medicalvocational guidelines in Appendix 2 of Subpart 2 ofthe Regulations to provide a framework for his
decision; he did not call a vocational expert to testify. (R. 18-19.) ALJ Hecht discussed the standard
for relying upon the medical-vocational guidelines, but omitted any discussion of when a vocational
expert's testimony is required. (ld.) In applying the guidelines as a framework for considering
Prince's case, ALJ Hecht wrote:
If [Prince] had the residual functional capacity to perform the full range of light
work, considering [his] age, education, and work experience, a finding of "not
disabled" would be directed by Medical-Vocational Rule 202.13. In this case,
[Prince's] additional limitations have little effect on the occupational base of
unskilled light work. A finding of "not disabled" is therefore appropriate under the
framework of this rule. [Prince's] environment restrictions from his mild, controlled
asthma clearly do not significantly reduce the number of sedentary and light jobs
available to [him]. Further, SSR 85-15 provides that the basic mental demands of
competitive, remunerative, unskilled work include the abilities (on a sustained basis)
to understand, carry out, and remember simple instructions; to respond appropriately
to supervision, coworkers, and usual work situations; and to deal with changes in a
routine work setting. A substantial loss of ability to meet any of these basic workrelated activities would severely limit the potential occupational base. The record

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17
shows that [Prince] has the ability to meet these mental demands of unskilled work.
Since [Prince] still retains the residual functional capacity to carry out those basic
mental demands of unskilled work, there exists no significant erosion of the
occupational base.
(R. 19.) ALJ Hecht therefore found that Prince "was not under a 'disability' ... at any time from
September 10, 2012 through the date of this decision," and was not entitled DIB or SSI benefits.
(R. 19-20.)
On September 4, 2013, Prince requested Appeals Council review of ALJ Hecht's
decision. (R. 5.) Prince argued that "lam disabled. 1 believe the hearings decision was unfair. Due
to my mental condition I see and hear things. I am paranoid and I cannot be around people, which
limits me from working." (R. 5.) On October 9, 2013, the Appeals Council denied review (R. 1-3),
and thus ALJ Hecht's decision became the final decision of the Commissioner.

ANALYSIS
I.

THE APPLICABLE LAW
A.

Definition Of Disability
A person is considered disabled for Social Security benefits purposes when he is

unable "to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impainnent 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),
1382c(a)(3)(A); see,~' Barnhart v. Thomas, 540 U.S. 20, 23, 124 S. Ct. 376,379 (2003); Barnhart
v. Walton, 535 U.S. 212, 214, 122 S. Ct. 1265, 1268 (2002); Impala v. Astrue, 477 F. App'x 856,
857 (2d Cir. 2012).!!.1

8/

See also,~' Salmini v. Comm'r of Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010);
Betances v. Comm'r of Soc. Sec., 206 F. App'x 25,26 (2d Cir. 2006); Surgeon v. Comm'r
(continued ... )

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18
An individual shall be determined to be under a disability only if [the combined
effects ofJ his physical or mental impainnent or impairments are of such severity that
he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B);

see,~'

Barnhart v. Thomas, 540 U.S. at 23, 124 S.

Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S. Ct. at 1270; Salmini v. Comm'r of Soc. Sec.,
371 F. App'x at 111; Betances v. Comm'r of Soc. Sec., 206 F. App'x at 26; Butts v. Barnhart, 388
F.3d at 383; Draegert v. Barnhart, 311 F.3d at 472.~
In determining whether an individual is disabled for disability benefit purposes, 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." Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam) ..!Q/

g;

( ... continued)
of Soc. Sec., 190 F. App'x 37,39 (2d Cir. 2006); Rodriguez v. Barnhart, 163 F. App'x 15,
16 (2d Cir. 2005); Malone v. Barnhart, 132 F. App'x 940, 941 (2d Cir. 2005); Butts v.
Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d
Cir. 2005); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v. Barnhart, 311
F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Brown v.
Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999);
Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d
Cir. 1998); Perez v. Chater, 77 F.3d 41,46 (2d Cir. 1996).

9/

See also, ~' Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77;
Balsamo v. Chater, 142 F.3d at 79.

10/

See,~'

Brunson v. Callahan, No. 98-6229, 199 F.3d 1321 (table), 1999 WL 1012761 at
* 1 (2d Cir. Oct. 14, 1999); Brown v. Apfel, 174 F.3d at 62.

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19

B.

Standard Of Review
A court's review of the Commissioner's final decision is limited to detennining

whether there is "substantial evidence" in the record as a whole to support such detennination.

~'

42 U.S.C. § 405(g); Giunta v. Comm'r of Soc. Sec., 440 F. App'x 53, 53 (2d Cir. 2011)._1_1/ "'Thus,
the role of the district court is quite limited and substantial deference is to be afforded the
Commissioner's decision."' Morris v. Barnhart, 02 Civ. 0377, 2002 WL 1733804 at *4 (S.D.N.Y.
July 26, 2002) (Peck, M.J.).I11
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla
[and] such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion."' Richardson v. Perales, 402 U.S. 389,401,91 S. Ct. 1420, 1427 (1971);

accord,~'

Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Rosa v. Callahan, 168 F.3d at 77; Tejada v.
Apfel, 167 F.3d at 773-74._111 "[F]actual issues need not have been resolved by the [Commissioner]

II/

See also,~' Prince v. Astrue, 514 F. App'x 18, 19 (2d Cir. 2013); Salmini v. Comm'r of
Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010); Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d
Cir.), cert. denied, 551 U.S. 1132, 127 S. Ct. 2981 (2007); Halloran v. Barnhart, 362 F.3d
28, 31 (2d Cir. 2004); Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003); Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.
2000); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770,773 (2d Cir. 1999); Perez v. Chater, 77 F.3d
41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam); Dumas v. Schweiker, 712 F.2d
1545, 1550 (2d Cir. 1983).

12/

See also,~' Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at *5 (S.D.N.Y. Dec. 9,
1999) (Chin, D.J.) ("The Commissioner's decision is to be afforded considerable deference;
the reviewing court should not substitute its own judgment for that of the Commissioner,
even if it might justifiably have reached a different result upon a de novo review."
(quotations & alterations omitted)).

13/

See also,~' Halloran v. Barnhart, 362 F.3d at 31; Jasinski v. Barnhart, 341 F.3d at 184;
Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Brown v. Apfel, 174
(continued ... )

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20
in accordance with what we conceive to be the preponderance of the evidence." Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207 (1983). The
Court must be careful not to "'substitute its own judgment for that of the [Commissioner], even if
it might justifiably have reached a different result upon a de novo review."' Jones v. Sullivan, 949
F.2d 57, 59 (2d Cir. 1991)._1_±1
The Court, however, will not defer to the Commissioner's detennination if it is '"the
product of legal error."'

li, Duvergel v.

Mar. 29, 2000) (Peck, M.J.); see

Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y.

also,~'

Douglass v. Astrue, 496 F. App'x 154, 156 (2d Cir.

2012); Butts v. Barnhart, 388 F.3d 377,384 (2d Cir. 2004), amended on other grounds, 416 F.3d 101
(2d Cir. 2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases).
The Commissioner's regulations set forth a five-step sequence to be used in
evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920;

see,~'

Barnhart v. Thomas, 540

U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct.
2287,2291 (1987). The Supreme Court has articulated the five steps as follows:
Acting pursuant to its statutory rulemaking authority, the agency has promulgated
regulations establishing a five-step sequential evaluation process to determine
disability. If at any step a finding of disability or nondisability can be made, the SSA
will not review the claim further. [ 1] At the first step, the agency will find
nondisability unless the claimant shows that he is not working at a "substantial
gainful activity." [2] At step two, the SSA will find nondisability unless the claimant
shows that he has a" severe impairment," defined as "any impairment or combination
of impairments which significantly limits [the claimant's] physical or mental ability
to do basic work activities." [3] At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of

13/

( ... continued)
F.3d at 61; Perez v. Chater, 77 F.3d at 46.

14/

See also,~' Campbell v. Astrue, 465 F. App'x 4, 6 (2d Cir. 2012); Veino v. Barnhart, 312
F.3d at 586.

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21
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies. [4] If the claimant's impairment is not on the list, the inquiry proceeds to
step four, at which the SSA assesses whether the claimant can do his previous work;
unless he shows that he cannot, he is detennined not to be disabled. [5] If the
claimant survives the fourth stage, the fifth, and final, step requires the SSA to
consider so-called "vocational factors" (the claimant's age, education, and past work
experience), and to detennine whether the claimant is capable of perfonning other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 540 U.S. at 24-25, 124 S. Ct. at 379-80 (fns. & citations omitted);

accord,~'

Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Rosa v. Callahan, 168 F.3d at 77; Tejada v.
Apfel, 167 F.3d at 774)11
The claimant bears the burden of proof as to the first four steps; if the claimant meets
the burden of proving that he cannot return to his past work, thereby establishing a prima facie case,
the Commissioner then has the burden of proving the last step, that there is other work the claimant
can perfonn considering not only his medical capacity but also his age, education and training. See,
~'Barnhart v. Thomas, 540 U.S. at 25, 124 S. Ct. at 379-80.J!!.

C.

1

The Treating Physician Rule
The "treating physician's rule" is a series of regulations set forth by the Commissioner

in 20 C.F. R. § 404.1527 detailing the weight to be accorded a treating physician's opmwn.
Specifically, the Commissioner's regulations provide that:
Ifwe find that a treating source's opinion on the issue(s) of the nature and severity

IS!

See also,~' Jasinski v. Barnhart, 341 F.3d at 183-84; Shaw v. Chater, 221 F.3d at 132;
Brown v. Apfel, 174 F.3d at 62; Balsamo v. Chater, 142 F.3d 75,79-80 (2d Cir. 1998); Perez
v. Chater, 77 F.3d at 46; Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995); Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).

\6/

See also,~' Selian v. Astrue, 708 F.3d at 418; Betances v. Comm'r of Soc. Sec., 206 F.
App'x 25,26 (2d Cir. 2006); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003);
Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; ~ v. Schweiker, 675
F.2d at 467.

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22
of your impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight.
20 C.F.R. § 404.1527(c)(2);

see,~'

Rugless v. Comm'r of Soc. Sec., 548 F. App'x 698,699-700

(2d Cir. 2013); Meadors v. Astrue, 370 F. App'x 179, 182 (2d Cir. 2010); Colling v. Barnhart, 254
F. App'x 87, 89 (2d Cir. 2007); Lamorey v. Barnhart, 158 F. App'x 361, 362 (2d Cir. 2006).
Further, the regulations specify that when controlling weight is not given a treating
physician's opinion (because it is not "well-supported" by other medical evidence), the ALJ must
consider the following factors in determining the weight to be given such an opinion: ( 1) the length
of the treatment relationship and the frequency of examination; (2) the nature and extent of the
treatment relationship; (3) the evidence that supports the treating physician's report; (4) how
consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the
physician in contrast to the condition being treated; and (6) any other factors which may be
significant. 20 C.F.R. § 404.1527(c)(2)-(6);

see,~'

Cichocki v. Astrue, 534 F. App'x 71,74 (2d

Cir. 2013); Gunter v. Comm'r of Soc. Sec., 361 F. App'x 197, 197 (2d Cir. 2010); Foxman v.
Barnhart, 157 F. App'x 344,346-47 (2d Cir. 2005); Halloran v. Barnhart, 362 F.3d 28,32 (2d Cir.
2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); Clark v. Comm'r of Soc. Sec., 143 F.3d
115, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998).
When a treating physician provides a favorable report, the claimant "is entitled to an
express recognition from the [ALJ or] Appeals Council of the existence of[the treating physician's]
favorable ... report and, if the [ALJ or] Council does not credit the findings of that report, to an
explanation of why it does not." Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999); see,

~

Cichocki v. Astrue, 534 F. App'x at 75; Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (ALJ's
failure to consider favorable treating physician evidence ordinarily requires remand pursuant to

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23
Snell but does not require remand where the report was "essentially duplicative of evidence
considered by the ALJ"); Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) ("We of course do
not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, but we do
believe that the crucial factors in any determination must be set forth with sufficient specificity to
enable [reviewing courts] to decide whether the detennination is supported by substantial evidence."
(citations omitted)); Ramos v. Barnhart, 02 Civ. 3127,2003 WL 21032012 at *7, *9 (S.D.N.Y. May
6, 2003) (The ALJ's "'failure to mention such [treating physician report] evidence and set forth the
reasons for his conclusions with sufficient specificity hinders [this Court's] ability ... to decide
whether his detennination is supported by substantial evidence."').
The Commissioner's "treating physician" regulations were approved by the Second
Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).

D.

The ALJ's Duty To Develop The Record
It is the "well-established rule in [the Second] circuit" that the ALJ must develop the

record:
[l]t is the well-established rule in our circuit "that the social security ALJ, unlike a
judge in a trial, must on behalf of all claimants ... affirmatively develop the record
in light of the essentially non-adversarial nature of a benefits proceeding." Lamay v.
Comm'r of Soc. Sec., 562 F.3d 503,508-09 (2d Cir. 2009) (internal quotation marks
and brackets omitted)[, cert. denied, 559 U.S. 962, 130 S. Ct. 1503 (2010)]; accord
Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004), [amended on other grounds],
416 F.3d 101 (2d Cir. 2005); Pratts v. Chater, 94 F.3d 34,37 (2d Cir. 1996); see also
Gold v. Sec'y of Health, Educ. & Welfare, 463 F.2d 38, 43 (2d Cir. 1972) (pro se
claimant). Social Security disability determinations are "investigatory, or
inquisitorial, rather than adversarial." Butts, 388 F.3d at 386 (internal quotation
marks omitted). "[I]t is the AU's duty to investigate and develop the facts and
develop the arguments both for and against the granting of benefits." ld. (internal
quotation marks omitted); accord Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).
Moran v. Astrue, 569 F.3d 108, 112-13 (2d Cir. 2009). This duty is heightened when a claimant
proceeds prose.

See,~'

Moran v. Astrue, 569 F.3d at 113; Hamilton v. Colvin, 10 Civ. 9641,

---- ------

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2013 WL 3814291 at *13 (S.D.N.Y. July 23, 2013).
II.

APPLICATION TO PRINCE'S CLAIM
A.

Prince Was Not Engaged In Substantial Gainful Activity
The first inquiry is whether Prince was engaged in substantial gainful activity after

his application for DIB and SSI benefits. "Substantial gainful activity" is defined as work that
involves "doing significant and productive physical or mental duties" and "[i]s done (or intended)
for pay or profit." 20 C.F.R. § 404.1510. ALJ Hecht's conclusion that Prince did not engage in
substantial gainful activity during the applicable time period (see page 12 above) is not disputed by
Prince or the Commissioner. (See generally Dkt. Nos. 13 & 26: Gov't Brs.; Dkt. Nos. 25 & 33:
Prince Brs.)
B.

Prince Demonstrated "Severe" Impairments That Significantly Limited His
Ability To Do Basic Work Activities
The second step of the analysis is to detennine whether Prince proved that he had a

severe impairment or combination of impairments that "significantly limit[ ed his] physical or mental
ability to do basic work activities." 20 C.F.R. § 404.1521(a). The ability to do basic work activities
is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b).
"Basic work activities" include:
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling
. . . seeing, hearing, and speaking . . . [u ]nderstanding, carrying out, and
remembering simple instructions . . . [u ]se of judgment . . . [r]esponding
appropriately to supervision, co-workers and usual work situations ... [d]ealing with
changes in a routine work setting.
20 C.F.R. § 404.1521(b)(l)-(6).
ALJ Hecht found that Prince's bronchial asthma, bipolar disorder and anxiety disorder
constituted severe impairments. (See page 12 above.) The Commissioner does not dispute this

~~~-------

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finding. (See generally Dkt. Nos. 13 & 26: Gov't Brs.) ALJ Hecht also found that although Prince
alleged disabling back pain, "the medical evidence fails to establish that [Prince] has any 'severe'
impairment of the spine or any other disorder that causes the back pain alleged." (See page 13
above.) Prince, represented by counsel, does not challenge ALJ Hecht's determination that his
alleged back pain does not meet the standard for a severe impairment. (See generally Dkt. Nos. 25
& 33: Prince Brs.) The Court therefore will proceed to the third step of the five-part analysis.

C.

Prince Did Not Have A Disability Listed In Appendix 1 Of The Regulations
The third step of the five-step test requires a detennination of whether Prince had an

impairment listed in Appendix 1 of the Regulations. 20 C.F.R., Pt. 404, Subpt. P, App. 1. "These
are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude
gainful employment. If a claimant's condition meets or equals the 'listed' impairments, he or she is
conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019,
1022 (2d Cir. 1995).
ALJ Hecht found that notwithstanding Prince's severe bronchial asthma, bipolar
disorder and anxiety disorder, Prince "does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1." (See page 13 above.) ALJ Hecht found that Prince's asthma "clearly does not meet
or medically equal the requirements of section 3. 03 for bronchial asthma." (See page 13 above.)
ALJ Hecht specifically found Prince's mental impairments "do not meet or medically equal the
requirements of listings 12.04 (for affective disorders), or 12.06 (for anxiety disorders)." (See page
13 above.)

Prince is represented by experienced counsel and does not argue that any of his
impairments meet or equal a Listed condition. (See generally Dkt. Nos. 25 & 33: Prince Brs.) The

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26
Court therefore proceeds with the analysis.

D.

Residual Functional Capacity And Credibility Determinations
1.

Residual Functional Capacity ("RFC") Determination

ALJ Hecht found that Prince had the RFC to "sit, stand or walk for up to six hours,
with nonnal breaks, in an eight hour workday, and lift/carry/push/pull objects weighing up to 20
pounds occasionally," which he characterized as exertionallimitations, and that Prince "is limited
to light work." (See pages 13-14 above.) ALJ Hecht found that with respect to nonexertional
limitations, Prince "is also limited to unskilled work involving the perfonnance of simple one or two
[step] tasks, and is unable to work in environments with high levels of respiratory irritants."
(See page 14 above.) Prince raises numerous challenges to ALJ Hecht's RFC determination. (See
generally Dkt. No. 25: Prince Br.) Because none are fatal to ALJ Hecht's detennination and because
as discussed below, remand at step five of the sequential analysis is required, the Court addresses
each only briefly.
Prince challenges ALJ Hecht's determination that Prince only needs to avoid
environments with a high level of respiratory irritants, asserting that ALJ Hecht misquoted the
conclusion of consultative internist Dr. Thukral. (Prince Br. at 14.) According to Prince, ALJ Hecht
"concluded that [Prince] only needs to avoid environments with a 'high level of respiratory irritants'
and then ... further stated that this was also the conclusion of Dr. Thukral ... [b Jut Dr. Thukral did
not say that." (Prince Br. at 14.) Prince is correct that Dr. Thukral opined that Prince should "avoid
smoke, dust, or other respiratory irritants due to asthma History." (See page 9 above.) Prince argues
that, contrary to ALJ Hecht's characterization, Dr. Thukral's opinion should be understood to mean
that Prince "can tolerate only very little dust." (See Prince Br. at 14.) Dr. Thukral's opinion (R. 319)
contains no such limitation. (See pages 8-9 above.) Furthermore, in determining that Prince is only

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27
restricted from exposure to high levels of respiratory irritants, ALJ Hecht reviewed all of the
objective medical evidence in the record (see page 14 above), and his finding is supported by the
results of Dr. Thukral's January 2013 examination, which showed normal results for Prince's chest
and lungs (see pages 8-9 above). ALJ Hecht also considered the treatment notes from Lincoln
Medical Center which indicate that when Prince was treated in the emergency room for asthma
exacerbation in September 2012, he reported experiencing such symptoms "only with extreme
physical exertion." (See pages 7, 14 above). Finally, ALJ Hecht considered Prince's own statements
that he exercises regularly and can walk one mile. (See pages 3, 7-8, 14 above.) Thus, ALJ Hecht's
detennination was consistent with the medical evidence of record, Prince's stated level of activity,
and with Dr. Thukral's examination results, notwithstanding that ALJ Hecht misstated Dr. Thukral's
concl usion ..Jll
Prince similarly challenges ALJ Hecht's statement that his RFC determination with
respect to irritant levels matches Dr. Blackwell's conclusions, noting that the opinion cited by ALJ
Hecht was not Dr. Blackwell's. (Prince Br. at 14.) Prince is correct that the physical RFC
assessment relied on by ALJ Hecht with respect to the severity of Prince's asthma was actually
perfonned by P. McKercher, a non-physician SSA decision-maker. (See pages 12, 15 above.)
Nonetheless, despite ALJ Hecht's error in attributing that detennination to Dr. Blackwell, ALJ Hecht
accurately characterized McKercher's conclusion that Prince only was limited from "concentrated
exposure" to dust. (See page 12 above.) That conclusion is consistent with the underlying medical
evidence, including Prince's own statements about his level of activity and the conditions under

17/

Earlier in discussing the basis for his RFC determination ALJ Hecht accurately stated that
"[t]he only restriction cited by Dr. Thukral was to avoid respiratory irritants due to his
asthma history." (See page 14 above).

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28
which he experienced asthma exacerbations.

(See pages 5, 7-8 above.)

Finally, although

McKercher is not a physician, ALJ Hecht was allowed to consider his opinion in evaluating Prince's
claim. See 20 C.F.R. §§ 404.1513(d)(3), 416.913( d)(3) (authorizing ALJs to consider evidence from
other sources including public and private social welfare agency personnel).
Prince also argues that ALJ Hecht erred by "failing to even acknowledge" the opinion
of consultative psychologist Dr.

Kushner that

Prince's psychiatric

conditions

"'may

significantly interfere with [Prince's] ability to function on a daily basis['] ... anywhere in his
decision." (Prince Br. at 3, emphasis in original.) ALJ Hecht thoroughly discussed Dr. Kushner's
opinion when determining Prince's RFC. (See page 15 above.) In particular, ALJ Hecht referred
to Dr. Kushner's opinion that Prince could follow and understand simple directions and instructions,
perform simple tasks independently, maintain a regular schedule, learn new tasks and may be able
to perfonn some complex tasks under supervision. (See page 15 above.) Similarly, ALJ Hecht
noted that Dr. Kushner "concluded that [Prince's] ability to make appropriate decisions, maintain
attention and concentration, relate adequately with others, and appropriately deal with stress may
be impaired by [his] psychiatric problems." (See page 15 above.) Thus, ALJ Hecht neither ignored
nor rejected Dr. Kushner's opinion; his RFC detennination includes a limitation to unskilled work
involving "simple one or two [step] tasks" (See page 14 above), consistent with Dr. Kushner's
opmwn.
Finally, Prince contends that ALJ Hecht's RFC detennination violated the treating
physician's rule by failing to acknowledge or weigh treating psychiatrst Dr. Fruitman's July 2013
opinion that Prince "'currently is unfit to work,"' and "erred by failing to obtain a medical source
statement from the treating psychiatrist, Dr. Fruitman." (Prince Br. at 2, 5.)
"[T]he opinion of a treating physician, or any doctor, that the claimant is 'disabled'

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29
or 'unable to work' is not controlling," since such statements are not medical opinions, but rather
"opinions on issues reserved to the Commissioner." Mack v. Comm'r of Soc. Sec., 12 Civ. 186,
2013 WL 5425730 at *8 (S.D.N.Y. Sept. 27, 2013); 20 C.F.R. §§ 404.1527(d)(l ), 416.927(d)(1) ..!_i!!
Moreover, in rejecting a treating physician's opinion, an ALJ need not expressly enumerate each
factor considered if the AU's reasoning and adherence to the treating physician rule is clear. See,
~'Atwater

v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013) (plaintiff "challenges the ALl's failure

to review explicitly each factor provided in 20 C.F.R. § 404.1527(c). We require no such slavish
recitation of each and every factor where the ALl's reasoning and adherence to the regulation are
clear."); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004) (affirming ALJ opinion which did
not discuss the treating physician rule, but where "the substance of the treating physician rule was
not traversed"). Indeed, Prince's counsel concedes that "Dr. Fruitman's opinion that [Prince] was
disabled appears to be an ... opinion on an issue that is reserved to the Commissioner." (Prince Br.
at 2.)
Moreover, the Second Circuit has held that absence of a medical source statement
from a treating physician does not require remand where "the record contains sufficient evidence
from which an ALJ can assess the petitioner's residual functional capacity." Tankisi v. Comm'r of
Soc. Sec., 521 F. App'x 29, 33-34 (2d Cir. 2013); see

also,~'

Pellam v. Astrue, 508 F. App'x 87,

90-91 (2d Cir. 2013) (ALJ had no further obligation to obtain a medical source statement from
treating doctor because the record contained the treating physician's treatment notes and the
consultative examining physician's opinion largely supported the ALl's RFC determination); Rosa v.

See also,~' Roma v. Astrue, 468 F. App'x 16, 18 (2d Cir. 2012); Priel v. Astrue, 453 F.
App'x 84, 86 (2d Cir. 2011); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); Cruz v.
Colvin, 12 Civ. 7346,2013 WL 3333040 at* 17 (S.D.N.Y. July 2, 2013) (Peck, M.J.), report
& rec. adopted, 2014 WL 774966 (S.D.N.Y. Feb. 21, 2014).

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Page 30 ol41

30
Callahan, 168 F .3d 72, 79 n.5 (2d Cir. 1999) ("[W]here there are no obvious gaps in the
administrative record, and where the ALJ already possesses a 'complete medical history,' the ALJ
is under no obligation to seek additional infonnation .... " (quoting Perez v. Chater, 77 F.3d 41, 48
(2d Cir. 1996)). Because the record before ALJ Hecht contained detailed medical records from
Prince's treatment with Dr. Fruitman at AHMed (see pages 5-7 above), ALJ Hecht was not required
to obtain a medical source statement from Dr. Fruitman.
Because ALJ Hecht was not required to give Dr. Fruitman's opinion controlling
weight or obtain a medical source statement, and because the case should be remanded at the fifth
step for vocational expert testimony, the Court need not discuss these issues further. On remand,
the ALJ should take care to explain why Dr. Fruitman's opinion deserves the amount of weight the
ALJ gives to it, avoid misstating the conclusions of the doctors relied upon, and accurately identify
those whose opinions contribute to Prince's RFC detennination._1_2i
2.

Credibility

Because subjective symptoms only lessen a claimant's RFC where the symptoms
"'can reasonably be accepted as consistent with the objective medical evidence and other evidence,'

19/

Prince also argues that ALJ Hecht erred in detennining Prince's mental residual functional
capacity by not including "many of the moderate limitations found by Dr. Blackwell."
(Prince Br. at 15.) At the same time, Prince claims that the "opinion from Dr. Blackwell
should be given no or very little weight" because "Dr. Blackwell never examined" Prince,
allegedly did not have the complete record because he examined Prince prior to Dr. Fruitman
writing his July 2013 letter, and relied heavily on Dr. Kushner's opinion while allegedly
committing a substantial omission by not noting that Dr. Kushner opined that Prince's mental
impairments "'may significantly interfere"' with this ability to function on a daily basis.
(Prince Br. at 16-17.) These arguments are contradictory and without merit. ALJ Hecht's
mental RFC detennination was more limited than Dr. Blackwell's opinion that Prince could
perfonn semi-skilled work. (See pages 12, 14.) In any event, ALJ Hecht does not appear
to have relied heavily on Dr. Blackwell's opinion at this stage ofhis finding; the bulk of his
analysis of Prince's mental limitations was based on Prince's medical records from AHMed
and the opinion of Dr. Kushner. (See pages 14-15 above.)

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31
the ALJ is not required to accept allegations regarding the extent of symptoms that are inconsistent
with the claimant's statements or similar evidence." Moulding v. Astrue, 08 Civ. 9824, 2009 WL
3241397 at *7 (S.D.N.Y. Oct. 8, 2009) (citation& emphasis omitted);

see,~,

Campbell v. Astrue,

465 F. App'x 4, 7 (2d Cir. 2012) ("As for the ALI's credibility detennination, while an ALJ 'is
required to take the claimant's reports of pain and other limitations into account,' he or she is 'not
require[ d] to accept the claimant's subjective complaints without question.' Rather, the ALJ 'may
exercise discretion in weighing the credibility of the claimant's testimony in light of the other
evidence in the record."' (citations omitted)); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)
("When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and
other limitations into account, but is not required to accept the claimant's subjective complaints
without question; he may exercise discretion in weighing the credibility of the claimant's testimony
in light of the other evidence in the record." (citations omitted)); Brown v. Comm'r of Soc. Sec., 310
F. App'x 450, 451 (2d Cir. 2009) ("Where there is conflicting evidence about a claimant's pain, the
ALJ must make credibility findings.").~ In addition, "courts must show special deference to an

201

See also,~' Rivers v. Astrue, 280 F. App'x 20, 22 (2d Cir. 2008) (same); Thompson v.
Barnhart, 75 F. App'x 842, 845 (2d Cir. 2003) (ALJ properly found that plaintiffs
"description of her symptoms was at odds with her treatment history, her medication regime,
and her daily routine"); Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999); Nonnan v. Astrue,
912 F. Supp. 2d 33,85 (S.D.N.Y. 2012) ("It is 'within the discretion ofthe [Commissioner]
to evaluate the credibility of plaintiffs complaints and render an independent judgment in
light of the medical findings and other evidence regarding the true extent of such
symptomatology.'"); Astalos v. Astrue, No. 06-CV-678, 2009 WL 3333234 at *12
(W.D.N.Y. Oct. 14, 2009) (ALJ properly determined that plaintiffs subjective pain
complaints were not supported by the medical record); Speruggia v. Astrue, No. 05-CV3532, 2008 WL 818004 at* 11 (E.D.N.Y. Mar. 26, 2008) ("The ALJ 'does not have to accept
plaintiffs subjective testimony about her symptoms without question' and should detennine
a plaintiffs credibility 'in light of all the evidence.'"); Soto v. Barnhart, 01 Civ. 7905, 2002
WL 31729500 at *6 (S.D.N.Y. Dec. 4, 2002) ("The ALJ has the capacity and the discretion
to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of
(continued ... )

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32
AU's credibility determinations because the ALJ had the opportunity to observe plaintiffs demeanor
while [the plaintiffwas] testifying." Marquez v. Colvin, 12 Civ. 6819, 2013 WL 5568718 at *7
(S.D.N.Y. Oct. 9, 2013).~
When ruling that a claimant is not entirely credible, the ALJ must provide "specific
reasons for the finding on credibility, supported by the evidence in the case record." SSR 96-7p,
1996 WL 374186 at *4 (July 2, 1996). The regulations set out a two-step process for assessing a
claimant's statements about 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 .... 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. The ALJ must consider statements the claimant or others make about his
impairment(s), his restrictions, his daily activities, his efforts to work, or any other
relevant statements he makes to medical sources during the course of examination
or treatment, or to the agency during interviews, on applications, in letters, and in
testimony in its administrative proceedings.
Genier v. Astrue, 606 F.3d at 49 (quotations, citation & brackets omitted).~

20/

( ... continued)
medical findings and other evidence, regarding the true extent of pain alleged by the
claimant."); Brandon v. Bowen, 666 F. Supp. 604,608 (S.D.N.Y. 1987) (same).

21/

Accord,~' Campbell v. Astrue, 465 F. App'x at 7 ("[W]e have long held that '[i]t is the
function of the [Commissioner], not ourselves, ... to appraise the credibility of witnesses,
including the claimant."'); Nunez v. Astrue, 11 Civ. 8711, 2013 WL 3753421 at *7
(S.D.N.Y. July 17, 2013); Guzman v. Astrue, 09 Civ. 3928, 2011 WL 666194 at *7
(S.D.N.Y. Feb. 4, 2011); Ruiz v. Barnhart, 03 Civ. 10128, 2006 WL 1273832 at *7
(S.D.N.Y. May 10, 2006); Gemavagev. Shalala, 882 F. Supp. 1413, 1419 & n.6 (S.D.N.Y.
1995); Mejias v. Soc. Sec. Admin., 445 F. Supp. 741,744 (S.D.N.Y. 1978)(Weinfeld, D.J.);
Wrennick v. Sec'y of Health, Educ. & Welfare, 441 F. Supp. 482, 485 (S.D.N.Y. 1977)
(Weinfeld D.J.).

22/

Accord,~'

Cichocki v. Astrue, 534 F. App'x 71,75-76 (2d Cir. 2013); Campbell v. Astrue,
465 F. App'x at 7; Meadors v. Astrue, 370 F. App'x 179, 183 (2d Cir. 2010); Taylor v.
(continued ... )

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33
In making his credibility determination, ALJ Hecht found that "[t]here is little
objective evidence of any impairment causing exertionallimitations" and that Prince's testimony "is
not supported by any objective medical evidence in the record and is not at all credible." (See page
15 above.) With respect to Prince's mental impairments, ALJ Hecht found that Prince's testimony
was contradicted by his employment history,~ his treatment records, and the results of his
consultative examination. (See page 15 above.) ALJ Hecht specifically noted that although the
"consultative psychiatric examination did indicate some problems with concentration[,] ... the
overall examination did not show disabling symptoms and ... the results of the examination are
somewhat put into question due to [Prince's] lack of candor concerning his drug history." (See pages
15-16 above.) ALJ Hecht therefore determined that " [w ]hile it is clear that [Prince] has a diagnosed
mental illness, ... he has attempted to portray himself as a lot more impaired than he actually is."
(See page 16 above.)
Because Prince's briefs, written by experienced counsel, do not challenge ALJ
Hecht's credibility determination (see generally Dkt. Nos. 25 & 33: Prince Brs.), and because the
case should be remanded on other grounds, the Court need not further address the ALJ's credibility
determination.

22/

( ... continued)
Barnhart, 83 F. App'x 347,350-51 (2d Cir. 2003); 20 C.F.R. § 416.945(a)(l), (3); SSR 967p, 1996 WL 374186 at *2.

23/

Significantly, Prince claimed his PTSD was caused by witnessing the September 11, 2001
attack, but he continued to work until his job was eliminated in 2008. (See page 3 above.)
Prince testified he could not sit for more than seven minutes, but he also said chess was his
hobby and he and a friend "sit there and we play a couple games of chess" (see page 3
above), which clearly takes far more than seven minutes, and also requires concentration.

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34

E.

Prince Did Not Have The Ability To Perform His Past Relevant Work
The fourth step of the five-step analysis asks whether Prince had the RFC to perfonn

his past relevant work. (See page 20 above.) ALJ Hecht found that Prince "is unable to perform his
past relevant work" as a helper on a water delivery truck because that work "had medium exertional
demands," while the ALJ found that Prince was "limited to light work." (See pages 14, 16 above.)
Because ALJ Hecht's findings at this stage are not challenged by Prince or the
Commissioner (see generally Dkt. Nos. 13 & 26: Gov't Brs.; Dkt. Nos. 25 & 33: Prince Brs.), the
Court proceeds to step five of the five-step analysis.

F.

ALJ Hecht's Reliance On The Medical-Vocational Guidelines Requires Remand
In the fifth step, the burden shifts to the Commissioner, "who must produce evidence

to show the existence of alternative substantial gainful work which exists in the national economy
and which the claimant could perfonn, considering not only his physical capability, but as well his
age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225,231 (2d Cir.
1980))~1

In meeting his burden under the fifth step, the Commissioner:
may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404,
Subpart P, App. 2, commonly referred to as "the Grid". The Grid takes into account
the claimant's residual functional capacity 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. Generally the result listed in the Grid is dispositive on the issue
of disability.

See,~' Roma v. Astrue, 468 F. App'x 16,20 (2d Cir. 2012); Arruda v. Comm'r of Soc.
Sec., 363 F. App'x 93, 95 (2d Cir. 2010); Butts v. Barnhart, 388 F.3d 377, 381 (2d Cir.
2004), amended on other grounds, 416 F.3d 101 (2d Cir. 2005); Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir. 1999).

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Page 35 of 41

35
Zorilla
Chater,
- - v. - - 915 F. Supp. 662, 667 (S.D.N.Y. 1996) (fu. omitted);

see,~'

Heckler v.

Campbell, 461 U.S. 458,461-62,465-68, 103 S. Ct. 1952, 1954-55, 1956-58 (1983) (upholding the
promulgation of the Grid); Roma v. As true, 468 F. App'x at 20-21; Martin v. As true, 33 7 F. App'x
87, 90 (2d Cir. 2009); Rosa v. Callahan, 168 F.3d at 78; Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996); ~ v. Bowen, 802 F.2d 601,604 (2d Cir. 1986).
However, "relying solely on the Grids is inappropriate when nonexertionallimitations
'significantly diminish' plaintiffs ability to work so that the Grids do not particularly address
plaintiffs limitations." Vargas v. Astrue, 10 Civ. 6306,2011 WL 2946371 at *13 (S.D.N.Y. July
20, 2011); see also,~' Travers v. Astrue, 10 Civ. 8228,2011 WL 5314402 at* 10 (S.D.N.Y. Nov.
2, 2011) (Peck, M.J.), report & rec. adopted, 2013 WL 1955686 (S.D.N.Y. May 13, 2013); Lomax
v. Comm'r of Soc. Sec., No. 09-CV-1451, 2011 WL 2359360 at *3 (E.D.N.Y. June 6, 2011) ("Sole
reliance on the grids is inappropriate, however, where a claimant's nonexertiona1 impairments
'significantly limit the range of work pennitted by his exertionallimitations."').
Rather, where the claimant's nonexertionallimitations "'significantly limit the range
of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational
expert." Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010)

(quoting~

v. Bowen, 802 F.2d at

605); see also,~' Selian v. Astrue, 708 F.3d 409,421 (2d Cir. 2013) ("We have explained that the
ALJ cannot rely on the Grids if a non-exertional impairment has any more than a 'negligible' impact
on a claimant's ability to perform the full range of work, and instead must obtain the testimony of
a vocational expert."); Rosa v. Callahan, 168 F.3d at 82 ("Where significant nonexertional
impairments are present at the fifth step in the disability analysis, however, 'application of the grids
is inappropriate.' Instead, the Commissioner 'must introduce the testimony of a vocational expert
(or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.'"

------------

---~~-~-~--·~~

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36
(quoting &

citing~

v. Bowen, 802 F.2d at 603, 605-06)); Suarez v. Comm'r of Soc. Sec., No.

09-CV-338, 2010 WL 3322536 at *9 (E.D.N.Y. Aug. 20, 2010) ("If a claimant has nonexertional
limitations that 'significantly limit the range of work pennitted by his exertionallimitations,' the ALJ
is required to consult with a vocational expert." (quoting Zabala v. Astrue, 595 F.3d at 411)).
ALJ Hecht relied exclusively upon the medical-vocational guidelines to detennine
that jobs exist in significant number in the national economy that Prince can perfonn. (See page 16
above.) In doing so, ALJ Hecht discussed the standard for use of the Grid, but omitted any
discussion of when a vocational expert's testimony is required and did not properly apply the
standard to Prince's claim. (See page 16 above.) ALJ Hecht wrote:
If [Prince] had the residual functional capacity to perform the full range of light
work, considering [his] age, education, and work experience, a finding of "not
disabled" would be directed by Medical-Vocational Rule 202.13. In this case,
[Prince's] additional limitations have little effect on the occupational base of
unskilled light work. A finding of "not disabled" is therefore appropriate under the
framework of this rule. [Prince's] environment restrictions from his mild, controlled
asthma clearly do not significantly reduce the number of sedentary and light jobs
available to [him]. Further, SSR 85-15 provides that the basic mental demands of
competitive, remunerative, unskilled work include the abilities (on a sustained basis)
to understand, carry out, and remember simple instructions; to respond appropriately
to supervision, coworkers, and usual work situations; and to deal with changes in a
routine work setting. A substantial loss of ability to meet any of these basic workrelated activities would severely limit the potential occupational base. The record
shows that [Prince] has the ability to meet these mental demands of unskilled work.
Since [Prince] still retains the residual functional capacity to carry out those basic
mental demands of unskilled work, there exists no significant erosion of the
occupational base.
(See pages 16-17 above.)
Prince argues that ALJ Hecht erred by relying on SSR 85-15 rather than obtaining
testimony from a vocational expert regarding whether there are a significant number of jobs in the
national economy that Prince could perfonn despite his limitations. (See Dkt. No. 25: Prince Br.
at 6-13; Dkt. No. 33: Prince Reply Br. at 7-10.)

.

---····-·-··------------------

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37
ALJ Hecht's reliance on SSR 85-15 to detennine that Prince's nonexertional limits
do not significantly limit the range of work open to him was misplaced. First, SSR 85-15 applies
only where the plaintiff suffers solely from nonexertionallimitations, and does not apply where the
plaintiff suffers from a combination of exertional and nonexertional impairments.

~'

Roma v.

Astrue, 468 F. App'x 16, 20 (2d Cir. 2012) ("SSR 85-15, descriptively titled 'The
Medical-Vocational Rules as a Framework for Evaluating Solely Nonexertionallmpairments,' does
not apply to a case, such as this one, in which the claimant suffers from a combination of exertional
and non-exertional impairments." (emphasis in original)); Lugo v. Colvin, 13 Civ. 1767, 2014 WL
5045630 at * 13 (S.D.N.Y. Oct. 9, 2014) ("[T]he ALJ did not specify whether she considered
plaintiffs ulnar nerve condition to be exertional or nonexertional. If it is exertional, then SSR 85-15
has no applicability to this case. SSR 85-15 applies only where the claimant suffers from solely
nonexertional impairments."); see also SSR 85-15, 1985 WL 56857 at *2 ("This [policy statement]
clarifies policies applicable in cases involving the evaluation of solelynonexertional impainnents. ").
Prince has both exertional and nonexertionallimitations (see pages 13-14 above), and thus by its
own tenns, SSR 85-15 is inapplicable to Prince.
Furthermore, ALJ Hecht's RFC detennination provides for nonexertionallimits based
on Prince's mental impairments arguably more restrictive than those discussed in SSR 85-15. SSR
85-15 states, among other requirements, that the "basic mental demands of competitive,
remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and
remember simple instructions" in a "routine work setting." SSR 85-15, 1985 WL 56857 at *4-5.
ALJ Hecht, however, found that Prince is "limited to unskilled work involving the performance of
simple one or two [step] tasks." (See page 14 above.) The language used by ALJ Hecht in assessing
Prince's mental impairments parallels that used by the Dictionary of Occupational Titles to describe

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38
jobs requiring a reasoning development level of one. Dictionary of Occupational Titles at 1011 (4th
ed. 1991) ("Apply commonsense understanding to carry out simple one- or two-step instructions.").
Prince points to several recent cases from outside this Circuit to argue that courts
which have considered the issue have found that the ability to perfonn jobs involving only one or
two-step tasks correspond to jobs with a reasoning level of one. (Prince Br. at 8, citing Aragon v.
Colvin, No. EDCV 12-1647,2013 WL 3306091 at *3 (C.D. Cal. July 1, 2013) ("The limitation to
one- and two-step instructions parallels the language contained in the description of Reasoning
Level One, as distinguished from Reasoning Level Two."); Cardoza v. Astrue, No. EDCV 10-936,
2011 WL 1211469 at *5-6 (C.D. Cal. Mar. 29, 2011) (collecting cases)). By contrast, in cases
involving plaintiffs without the additional limitation present in Prince's case, courts in this Circuit
have held that a RFC determination limiting a plaintiff to simple and routine tasks means that a
plaintiff is capable of working at reasoning development level two.

See,~

Rivera v. Colvin, 11

Civ. 7469, 2014 WL 3732317 at *42 (S.D.N.Y. July 28, 2014) ("Most courts, in this circuit and
others, have held that an RFC that limits a claimant to only simple and routine tasks is consistent
with GED level 2 reasoning." (emphasis omitted)); Edwards v. As true, No. 07 -CV -898, 2010 WL
3701776 at *15 (N.D.N.Y. Sept. 16, 2010) ("Working at reasoning level2 does not contradict a
mandate that work be simple, routine and repetitive."); see also Dictionary of Occupational Titles at
1011 (reasoning development level two requires an individual to be able to " [a]pply commonsense
understanding to carry out detailed but uninvolved written or oral instructions"). ALJ Hecht did not
explain how he determined that Prince "has the ability to meet [SSR 85-15's] mental demands of
unskilled work," notwithstanding Prince's additional limitation to one or two-step tasks. (See page
17 above.) Thus, it is unclear whether SSR 85-15 would be applicable to Prince even if he had only
nonexertionallimitations.

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39
Aside from his reliance on SSR 85-15, ALJ Hecht did not explain his conclusion that
"there exists no significant erosion of the occupational base" as a result of Prince's nonexertional
mental limitations. (See pages 16-17 above.) In relying upon the Grids, rather than the testimony
of a vocational expert, however, ALJ Hecht was obligated to explain his finding that Prince's
nonexertional limitations had only a negligible impact on the range of work pennitted by his
exertionallimitations.

See,~'

Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) ("We have

explained that the ALJ cannot rely on the Grids if a non-exertional impairment has any more than
a 'negligible' impact on a claimant's ability to perfonn the full range of work, and instead must
obtain the testimony of a vocational expert."); Hernandez v. Colvin, 13 Civ. 3035,2014 WL 388415
at *15 (S.D.N.Y. Aug. 7, 2014); Cruz v. Colvin, 12 Civ. 7346, 2013 WL 3333040 at *19-20
(S.D.N.Y. July 2, 2013) (Peck, M.J.), report & rec. adopted, 2014 WL 774966 (S.D.N.Y. Feb. 21,
2014); Suarez v. Comm'rofSoc. Sec., No. 09-CV-338, 2010 WL3322536 at *9 (E.D.N.Y. Aug. 20,
201 0) ("If a claimant has nonexertional limitations that 'significantly limit the range of work
permitted by his exertional limitations,' the ALJ is required to consult with a vocational expert."
(quoting Zabala v. Astrue, 595 F.3d at 411)). Prince's nonexertionallimitations may have had more
than a negligible impact on his ability to work, since as Dr. Kushner opined, Prince's psychiatric
conditions may significantly interfere with his ability to function on a daily basis (see pages 10-11
above), and since Prince's limitation to simple one and two-step tasks may leave him limited to jobs
that require only reasoning development level one.
Under these circumstances, the ALJ was required to seek the opinion of a vocational
expert rather than relying exclusively on the Grid. ALJ Hecht's failure to consult a vocational expert
is a legal error that necessitates remand.

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CONCLUSION
For the reasons set forth above, the Commissioner's motion for judgment on the
pleadings (Dkt. No. 12) should be DENIED, and Prince's motion for judgment on the pleadings
(Dkt. No. 24) should be GRANTED to the extent of remanding the case to the Commissioner for
further proceedings consistent with this Report and Recommendation.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(l) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties shall have fourteen (14) days from service of this Report 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 the Court, with courtesy copies delivered to the chambers ofthe Honorable
Thomas P. Griesa, 500 Pearl Street, Room 1630, and to my chambers, 500 Pearl Street, Room 1370.
Any requests for an extension of time for filing objections must be directed to Judge Griesa (with
a courtesy copy to my chambers). Failure to file objections will result in a waiver of those
objections for purposes of appeal. Thomas v. Am, 474 U.S. 140, 106 S. Ct. 466 (1985); Ingram v.
Herrick, 475 F. App'x 793, 793 (2d Cir. 2012); IUE AFL-CIO Pension Fund v. Hemnann, 9 F.3d
1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Frank v. Johnson, 968
F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 ( 1992); Small v. Sec'y of Health
& Human Servs., 892 F.2d 15, 16 (2d Cir. 1989);

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Wesolek v. Canadair Ltd., 838 F.2d 55,57-59 (2d Cir. 1988); McCarthyv. Manson, 714 F.2d 234,
237-38 (2d Cir. 1983).

Dated:

New York, New York
March 9, 2015
Respectfully submitted,

Andrew J. Peck
United States Magistrate Judge

Copies ECF to: All Counsel
Judge Thomas P. Griesa