McClinton v. Commissioner of Social Security

Filing 23

REPORT AND RECOMMENDATION re: 10 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. The ALJ failed in several significant ways to fulfill his obligation to evaluate the record and support his findings wi th substantial evidence. Specifically, he failed to acquire complete evidence regarding her treatment at North General and with Dr. Lee. The ALJ incorrectly applied the treating-physician rule with regard to Dr. Lee. He also failed to properly evalua te Ms. McClinton's credibility and allegations of pain, and the combined impact of her non-severe medical and psychiatric impairments. Finally, his determination at step five is inherently flawed because of its reliance on an RFC derived from th ese compounded errors. Accordingly, we conclude that remand is necessary to determine whether, in accordance with SSA regulations and case law, plaintiff qualifies for Supplemental Security Income benefits. On remand, the Commissioner should develop the record and then reconsider the issues discussed above in light of the totality of the evidence. Objections to R&R due by 9/21/2015 (Signed by Magistrate Judge Michael H. Dolinger on 9/02/2015) Copies Sent By Chambers. (ama) Modified on 9/2/2015 (ama).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x
:
CHARLENE MCCLINTON,
:
Plaintiff,

REPORT & RECOMMENDATION
:

-against-

13cv8904 (CM)(MHD)
:

CAROLYN W. COLVIN,
Commissioner of Social Security,

:

Defendant.
:
-----------------------------------x
TO THE HONORABLE COLLEEN MCMAHON, U.S.D.J.:

Plaintiff Charlene McClinton filed this lawsuit pursuant to
section 1614(a)(3)(A) of the Social Security Act, as amended, 42
U.S.C.

§

1614(a)(3)(A)

(“the

Act”),

to

challenge

a

final

decision of the Social Security Administration (“SSA”) denying
her

application

(“SSI”)

under

for
the

Supplemental
Act.

Security

Plaintiff

and

Income
the

benefits

Commissioner

(“defendant”) have cross-moved for judgment on the pleadings.

For the reasons that follow, we recommend that the case be
remanded for development of the record and a new determination
of whether plaintiff is disabled.

1

BACKGROUND

I.

Procedural History
Ms. McClinton1

filed an application for SSI benefits on

August 22, 2008,2 claiming that she had become disabled on April
22, 2008. (Admin. R. Tr. (“Tr.”) 289-90.)3 Plaintiff based her
application on the claim that she suffered from a variety of
physical and psychiatric maladies. (Id.).

The SSA denied her application initially on November 3,
2008. (Tr. 139-43). She then requested an evidentiary hearing
(see Tr. 151-52), which was conducted on December 3, 2009 before
Administrative Law Judge (“ALJ”) Cameron Elliot. (Tr. 101-15).
In a decision dated December 10, 2009, the ALJ found plaintiff
to be not disabled. (Id. at 119-28). The Appeals Council granted
Ms. McClinton’s request for review of the ALJ’s decision on

1

Plaintiff is alternately referred to in the record as
Charlene Salters (see, e.g., Tr. 118), Charlene Salters
McClinton (see, e.g., id. at 119), and Charlene McClinton. (See,
e.g., Complaint).
2 The parties report the filing date to be August 28, 2008,
based on a finding by the ALJ (Def’s Mem. 1 (citing Tr.
12));(Pl. Mem 1 (citing Tr. 289-90)), but the record reflects
the earlier date that we cite. (Tr. 289-90).
3 Plaintiff applied at the same time for disability
insurance benefits, but that application, which is not at issue
here, was denied because she was not covered by disability
insurance on or after her claimed disability onset date. (Tr.
287).
2

March 30, 2011, vacating and remanding the case for further
proceedings. (Id. at 132-36). In particular, the Appeals Council
required the ALJ to do the following on remand: 1) evaluate
plaintiff’s obesity in accordance with SSR 02-1p, 2) evaluate
plaintiff’s

mental

impairments

according

to

the

technique

described in 20 C.F.R. § 416.920a, 3) give further consideration
to

plaintiff’s

maximum

residual

capacity

during

the

entire

period at issue, and 4) obtain evidence form a vocational expert
to

clarify

the

effect

of

the

assessed

limitation

on

her

vocational capacity. (Tr. 134).

ALJ

Paul

A.

Heyman

held

three

subsequent

hearings,

on

September 22, 2011, April 5, 2012, and June 6, 2012. (Id. at
12). Ms. McClinton was represented by counsel at each of these
hearings. (Id. at 31, 49, 64, 202). On July 13, 2012, the ALJ
issued his decision finding Ms. McClinton to be not disabled.
(Id.

at

12-25).

The

Appeals

Council

denied

Ms.

McClinton’s

request for review of the ALJ’s decision on November 13, 2013,
making the Commissioner’s determination final. (Id. at 1-5).

3

II.

The Pertinent Record
A. Plaintiff’s Submissions and Testimony at the Hearings
1. Submissions
In her initial application, Ms. McClinton indicated that

she was born on April 23, 1967. (Tr. 118). As described by the
SSA, Ms. McClinton indicated that she suffered from depression,
anxiety, dysthymic disorder,4 spondylosis5 in her lumbar6 spine,
knee pain, dyspnea7 on exertion, and an eating disorder. (Id. at
308). She reported that she was unable to climb stairs, bend,
crouch, carry, or lift; that it took her about 15-30 minutes to
walk two blocks because she continually had to stop; that it
took her 15 minutes to stand up after urinating, and that she
had trouble sleeping due to the pain. (Id.). Additionally, she
reported that the various pain medications that she had taken
either had not been effective, or had been effective but caused
drowsiness. (Id.).

4

Dysthymia is a less severe form of depression. 6 Attorneys
Medical Advisor § 49:15. A diagnosis of dysthymia requires at
least 2 symptoms of depression, both of which must be present
for at least 2 years. (Id.).
5 Spondylosis is a bone defect near the root of a vertebra’s
arch that is often symptomless. 7 Attorneys Medical Advisor §
71:149.
6 The area of the back that is connected to the hips and
legs. 7 Attorneys Medical Advisor § 71:19.
7 Dyspnea means difficulty breathing. 9 Attorneys Medical
Advisor § 90:8.
4

2. Hearing Testimony
At the September 22, 2011 hearing, Ms. McClinton testified
that

she

was

married

and

had

three

children,

ages

one,

seventeen, and twenty. (Tr. 69, 80). She specified that the oneyear old and twenty-year old lived with her, with the older
daughter helping her care for the baby. (Id. at 80-81). She
testified that her formal education had ended in ninth grade,
that she did not have a driver’s license, and that she last
worked in 2007, at a cosmetics factory, assembling lipstick and
lipstick holders. (Id. at 69-70). She said that she left the job
after

she

developed

back

problems

and

could

not

handle

the

exertion required, for instance, to walk up the steps. (Id. at
70).

Pain Allegations
Ms. McClinton specified that she had pain “in the lower
part of [her] back” as well as in both of her knees. (Tr. 76,
86). She testified that her back pain had worsened after she
underwent surgeries in the fall of 2010. (Id. at 71-73). During
this period, she reported, she had lost approximately 75 pounds,
arriving at her current weight of 149 pounds, from her previous
weight of 225 pounds in 2010. (Id. at 69, 71-72). She further
explained that she had lost the weight because she “was sick . .

5

.

[she]

kept

getting

sick

back-to-back.

[She]

couldn’t

eat

anything.” (Id. at 97).

In explaining her back pain, she testified that an MRI
showed that there was a lumbar disc bulge that was “twisting.”
(Id. at 95). As for her knee pain, she explained that doctors
had categorized it as arthritis, partially caused by a preexisting condition of being born with bowed legs. (Id. at 89,
92, 94). She noted that she had had an operation on her knees
shortly

after

she

was

born

but

had

not

had

additional

knee

surgery since then. (Id. at 93). She further explained that her
knees were painful, causing “aches in the kneecaps when it like
rains

or

something

and

[she]

catch[es]

a

lot

of

cramps

and

everything in [her] legs.” (Id.).

Ms.
abscess

McClinton
and

testified

hernia

that

operations

in

she

had

undergone

September,

pelvic-

October,

and

November 2010, at Bronx-Lebanon Hospital Center under the care
of

Dr.

Leburitz.8

(Id.

at

71-73).

After

the

operations,

she

received follow-up treatment at Bronx-Lebanon Hospital related
to the surgeries. (Id. at 71-73). She also testified that, aside

8

This is the phonetic spelling of the doctor’s name. The
actual name was not sought by the ALJ, nor were we able to find
a physician with a name like this in the Bronx-Lebanon Hospital
directory.
6

from

the

surgeries

performed

at

Bronx-Lebanon,

she

had

been

receiving primary care from North General Hospital and Treatment
and

Diagnostic

continuing
September
Dimitri

Center

that
2011

(“North

treatment
hearing.

Alvarez10

as

her

General”)

relationship

since
at

the

2006

and

was

of

the

identified

Dr.

time

at

73-74).9

She

current

treating

physician

(Id.

at

North

General and the one who prescribed a pain medication and muscle
relaxant for her. (Id. at 74-75). She testified that despite the
medication

she

cannot

do

any

activities

because

she

has

“excruciating pain.” (Id. at 76). She showed the ALJ a back
brace she was wearing for lower-back pain and testified that Dr.
Winston

Lee

at

the

Columbus

Rehabilitation

9

Center11

had

been

North General closed due to bankruptcy in 2010, but the
care and services offered there were replaced within a few
months at the same location by the Institute for Family Health.
“North General Hospital Is Closing, but Clinics Are Ready to
Take Its Place, The New York Times, available at
http://nyti.ms/1Du9nrU (last visited Aug. 25, 2015). Ms.
McClinton appears to describe this change when she testified
that in 2010 “the hospital changed,” requiring her to “recertify and everything back over.” (Tr. 84).
10 Dimitri Alvarez, M.D. is a family practice specialist
affiliated with The Institute for Family Health, a clinic that
assumed care for the North General patients when that hospital
closed in 2010, as well as Beth Israel Medical Center and Mount
Sinai Hospital. “Dimitri Alvarez,” Health Care for People,
http://www.healthcare4ppl.com/physician/new-york/newyork/dimitri-alvarez-1114184637.html (last visited Aug. 25,
2015).
11 There is one Winston Lee, M.D. registered in New York
State, license 220812, with a listing address in Brooklyn, New
York. “Verification Services,” New York State Office of the
Professions,
7

coordinating

her

care

for

her

back

pain.

(Tr.

77-78).

Ms.

McClinton explained at the hearing that she currently wore a
back brace, and had been doing so for the past two weeks. (Id.
at 90). She also testified that, twice a week for the past eight
weeks, she had been receiving physical therapy for her lower
back under Dr. Lee’s supervision -- including exercise bikes,
massage, and weights -- and that Dr. Lee had prescribed a pain
medicine, Naprosyn. (Id. at 76-78, 87-88).12

The ALJ also noted

during the hearing that Ms. McClinton was currently taking ten
milligrams

of

Cyclobenzaprine13

and

fifteen

milligrams

of

Diclofenac,14 in addition to the Naprosyn. (Id. at 88).

Ms. McClinton further testified that she had not undergone
back

or

knee

surgery

to

address

the

pain.

(Id.

at

86-87).

http://www.nysed.gov/coms/op001/opsc2a?profcd=60&plicno=220812&n
amechk=LEE (last visited Aug. 25, 2015). Columbus Rehabilitation
Center is a medical rehabilitation center in Bronx, NY that
offers multidisciplinary outpatient care. “About,” Columbus
Center for Medical Rehabilitation,
http://columbusmedicalrehab.com/about.html (last visited Aug.
25, 2015).
12 Naproxen (or Naprosyn), known by the brand name Aleve, is
a non-steroidal anti-inflammatory applied to pain, migraine
headache, osteoarthritis, ankylosing spondylitis, rheumatoid
arthritis, musculoskeletal, and soft tissue inflammation. 3
Attorneys Medical Deskbook § 40:17.
13 Cyclobenzaprine is a skeletal muscle relaxant applied to
musculoskeletal pain. 3 Attorneys Medical Deskbook § 40:4.
14 Diclofenac is a phenylacetic acid derivative applied to
pain, arthritis, and spondylitis. 3 Attorneys Medical Deskbook §
40:7.
8

Similarly, she had not received epidural shots or injections
since the birth of her youngest daughter.15 (Id. at 86). Ms.
McClinton explained that when she was pregnant, she had stopped
taking some of her prescribed medication, but that she was due
to restart the medication the following week. (Id. at 85, 87).16
She testified that she “couldn’t go until after the baby turned
a year, so they can give me my medication back, so I can get
back on my medication.” (Id. at 84).

Regarding the severity of her pain and the limitations that
it imposed on her, Ms. McClinton stated that she could not stand
up, and when she tries, her “body just locks and stiffens and I
get a burning sensation. . . . I can’t bend at all. I just lay
in my bed and I try to play with my baby. I can’t even do that.”
(Tr. 91). Her adult daughter assists with care of the baby. (Id.
at 80-81). She testified that the back brace “helps a little. .
. . Without it I can’t walk or tie my shoe.” (Id. at 90). She
also

noted

that

taking

the

subway

was

not

possible

for

her

because it required more standing than she could tolerate. (Id.
at 82). She testified that she liked to read newspapers and
books, notably novels, as her principal hobby. (Id. at 81).
15

We deduce from the record that Ms. McClinton delivered
this child in October 2009. (See, e.g., Tr. 80, 650).
16 Ms. McClinton had ceased her psychotropic medications
during her pregnancy. (Tr. 615, 670, 675).
9

At the June 6, 2012 hearing, the ALJ asked Ms. McClinton
additional questions regarding her pain and her weight loss. Ms.
McClinton

testified

that

despite

having

maintained

her

significant weight loss for a year at that point, her back pain
was worse than before the weight loss. (Tr. 43-44).

Mental Health Issues
Regarding

her

mental

status,

Ms.

McClinton

stated

that

“[r]ight now I’m depressed from my mom’s [death] and I’m still
going through it and stuff, so that’s why I’m now back and
taking [c]are of my business, but I’m still crying.” (Tr. 91).
She also testified that having a baby had negatively affected
her mental state by increasing her depression, though she denied
that

her

depression.

care
(Id.

providers
at

had

83).17

diagnosed

Instead,

she

her

with

explained

postpartum
that

her

treating psychiatrist, Dr. Wizenberg,18 who had been treating her
over the two months prior to her September 2011 hearing, had
described her symptoms as related to bipolar disorder. (Id. at

17

Postpartum depression is a severe, long-lasting form of
depression triggered by childbirth in some women. “Diseases and
Conditions: Postpartum Depression,” Mayo Clinic,
http://www.mayoclinic.org/diseases-conditions/postpartumdepression/basics/definition/con-20029130 (last visited Aug. 31,
2015).
18
Also referred to as “Dr. Weisberg” in the hearing
transcript. This is the phonetic spelling of an otherwise
unidentified doctor. (Tr. 84-85).
10

84-85).19 She described a lack of appetite as a symptom of her
depression
that

“by

that
my

facilitated

depression,

dramatic

I

don’t

weight

really

loss,

eat.

I

explaining
don’t

eat

nothing.” (Id. at 98). Ms. McClinton also indicated that she
avoided taking buses because “the people remind[] me of dead
people.” (Id. at 82).

Ms.

McClinton

testified

that

she

had

been

in

group

psychotherapy at North General before her pregnancy, although
she had not been able to attend due to complications with her
pregnancy and depression following the baby’s birth, but that
she was set to resume it shortly. (Id. at 82-83). At the time of
her

September

2011

hearing

she

was

receiving

individual

psychotherapy every other week at North General.20 (Id. at 79).

Ms.

McClinton

explained

that

she

had

not

been

in

psychiatric treatment for about a year preceding her treatment
with

Dr.

Wizenberg

because

she

had

been

unable

to

take

the

psychotropic medicine or attend group therapy until her baby
turned a year old, which would have occurred in late 2010. (Id.
19

Bipolar is a psychiatric disorder that is categorized by
swings between manic, energetic behavior and depression. 2
Attorneys Medical Deskbook § 25:24.
20 The record does not contain treatment notes regarding
plaintiff’s psychotherapy or psychiatric treatment from this
period. Also, we presume that she means the Institute for Family
Health. See p. 7, note 9, supra.
11

at 83-84). She also cited as a factor in the delay a change in
the hospital management that also required recertification and
other steps to resume treatment. (Id. at 84). Additionally, she
explained that her back pain and operations, in conjunction with
the fact that she did not have carfare, further prevented her
from obtaining treatment. (Id. at 84-85).

Ms. McClinton testified that she would be “getting back in”
to group therapy and resuming her psychotropic medicine on the
Monday following the hearing. (Id. at 83, 85). She reported that
she had previously taken Lexapro,21 but that it left her with
“very bad” stomach pain and that her doctor was planning to
prescribe a new medication. (Id. at 80).

In
street

response
drug

to

issues?”

ALJ

Heyman’s

Ms.

question

McClinton

“Do

reported

you

have

any

that

she

had

graduated from a drug program for cocaine and alcohol in 2006,
and that she had not had any relapses since that time. (Tr. 90).

21

Lexapro is a brand name for Escitalopram Oxalate, a
selective serotonin reuptake inhibitor (“SSRI”). It is applied
to depression, panic disorder, anxiety disorders, obsessivecompulsive
disorder,
post-traumatic
stress
disorder,
premenstrual dysphoric disorder, and social anxiety disorder. 3
Attorneys Medical Deskbook § 40:15.
12

B. Medical Records: Treating Doctors
The

record

includes

several

hundred

pages

documenting

outpatient visits to North General Hospital and North General
Diagnostic and Treatment Center (“North General”) for medical
reasons and mental health care between May 13, 2008 and March
17, 2010. (Tr. 467-754, 758-59).22 Other than a single painmanagement referral dated September 20, 2011 (id. at 758), the
record does not contain the treatment notes from the successor
institution to North General -- the Family Health Center at
North General -- even though Ms. McClinton testified that she
was receiving treatment from care providers there in 2011 and
2012.

(See

section

II.A.2,

supra).

The

North

General

team

included Dr. Jamal Kobeissi, Dr. Ruth Reid-Thornton, and Dr.
Dimitri Alvarez, as well as other doctors and social workers.
(Id. at 467-753, 758-59). We note that portions of the record
from

North

General

are

in

handwriting

that

is

partially

illegible, making it impossible for us to fully decipher the
names of the care providers or the substance of their written
notes. (See, e.g., id. at 470-71, 476, 652, 659, 680-682).
22

An internet search revealed that these two entities
shared the same address, 1879 Madison Ave, New York, NY, and
were thus related institutions. “North General (Closed),” US
Hospital Finder; http://www.ushospitalfinder.com/hospital/NorthGeneral-Hospital-New-York-NY (last visited Aug. 12, 2015);
“North General Diagnostic Treatment Center,” HospitalGood.com,
http://www.hospitalgood.com/North_General_Diagnostic_Treatment_C
enter (last visited Aug. 12, 2015).
13

1. Medical and Physical Ailments and Associated Pain
North General
Ms.
health,

McClinton

met

rehabilitation

with

care

in

medicine,

medicine,

providers

the

women’s

neurology,

and

surgery services at North General to address her back pain, knee
fibroid23

pain,

uterus,

pelvic

pain

and

abscess,

as

well

as

bowel, urination, gynecological, axilla,24 and breast problems.
(Id. at 467-91, 521-62, 619-88, 701-54, 758). The claimant’s
bowel,

urination,

gynecological,

axilla,

and

breast

problems

will not be discussed because plaintiff did not allege them to
be severe impairments. (See, e.g., id. at 480; see generally,
Plaintiff’s Memorandum of Law (“Pl. Mem.”), Doc. 9).

In

November

2008,

January

2009,

and

March

2009,

the

treating team at North General Hospital diagnosed Ms. McClinton
with a degenerative disk disease in her lumbar spine and noted
that

the

she

had

high

levels

of

reported

lower-back

pain,

difficulties bending forward, and a decreased ability to walk
for prolonged periods of time. (Id. at 521, 662, 673).

23

A common term for benign uterine
Attorneys Medical Advisor § 57:21.
24
The medical term for “armpit.” 5
Advisor § 38:21.
14

muscle

tumors.

Attorneys

6

Medical

The rehabilitation services at North General provided the
results of an MRI conducted on June 30, 2008, indicating “mild
to moderate bilateral foraminal neural narrowing,”25 degenerative
disc disease, with facet degenerative change “causing flattening
of the anterior thecal sac.” (Id. at 537.)26

Dr. Ruth Reid-

Thornton27 of that service entered visit notes on September 24,
2008 and December 3, 2008, as well as a referral for physical
therapy dated October 24, 2008. (Id. at 530, 535-37, 686-88).

Ms. McClinton reported to Dr. Reid-Thornton that her nonradiating back pain was six on a ten-point scale on September
24, 2008, that the pain was present when she tried to bend, that

25

Foraminal narrowing describes a condition in which the
point where the nerve roots leave the spine -- through herniated
or other disc problems -- can become pinched and create both
pain and weakness. “Terminology for CT scans and MRI scans,” MySpine.com, http://www.my-spine.com/neck-pain.html (last visited
Aug. 25, 2015).
26 The “anterior thecal sac” is the front of the outer
covering of the spinal cord. “Terminology for CT scans and MRI
scans,” My-Spine.com, http://www.my-spine.com/neck-pain.html
(last visited Aug. 25, 2015).
27 Dr. Ruth Reid-Thornton is a licensed M.D. in New York
State, No. 197816, located in Staten Island. “Verification
Searches,” New York State Office of the Professions,
http://www.nysed.gov/coms/op001/opsc2a?profcd=60&plicno=197816&n
amechk=REI (last visited Aug. 26, 2015). She is listed as a
physiatrist board-certified in physical medicine and
rehabilitation. “Dr. Ruth A. Reid-Thornton, MD,”
HealthGrades.com, http://www.healthgrades.com/physician/dr-ruthreid-thornton-2fk9p/backgroundcheck#BackgroundCarePhilosophy_anchor (last visited Aug. 26,
2015).
15

she was unable to rise from the floor, and that the pain was
intermittent, but worsening, which prompted her visit. (Id. at
535). The doctor noted that Ms. McClinton reported crying at
night due to pain, and that neither the medication Tramadol28 nor
a muscle relaxant that she had been prescribed were relieving
the pain. (Id.). The doctor observed that the patient’s gait was
normal, but that she had tenderness in her lumbar spine and
limited flexion. (Id. at 356). She also noted that plaintiff was
taking 10 mg of Lexapro daily. (Id. at 535). An October 24, 2008
note

indicates

physical

therapy

that
for

Dr.

Reid-Thornton

plaintiff

to

initiated

improve

her

semiweekly

strength

and

flexibility and reduce her pain. (Id. at 530).

On December 3, 2008 the doctor noted that Naprosyn was
providing

temporary

pain

relief

and

that

plaintiff

was

continuing her Lexapro dosage. (Id. at 686). She indicated that
the patient was morbidly obese but not in apparent distress,
that she had an antalgic gait and moved slowly, and that she had
pain

with

back

flexion.

(Id.

at

687).

Dr.

Reid-Thornton

prescribed semiweekly physical therapy for another four weeks,
discontinued

Naprosyn,

apparently

28

to

be

replaced

by

another

Tramadol is a morphine opioid agonist analgesic. It is
applied to “moderate to moderately severe pain.” 3 Attorneys
Medical Deskbook § 40:23.
16

medication that is not legible to us in the notes, and called
for a return visit in one month. (Id. at 688). Dr. Reid-Thornton
also

provided

indicating

a

that

physician’s
plaintiff

had

note,
a

dated

December

lumbar-spine

disc

3,

2008,

bulge

and

facet-joint atrophy, was undergoing semiweekly physical therapy
for

one-to-two

additional

months,

and

should

be

limited

to

sedentary work only for the next three months. (Id. at 487).

The record contains entries documenting all eight of the
physical therapy appointments -- twice weekly for four weeks -provided by the rehabilitation medicine team at North General
per Dr. Reid-Thornton’s October 2008 referral. (Tr. 521-23, 67879, 683-85). The physical therapy intake form dated October 24,
2008 recounts her history of lower-back pain with difficulty
walking and bending forward, and it listed her pain that day as
nine

on

a

documenting

ten-point
each

of

scale.

(Id.

plaintiff’s

at

528-29).

eight

The

notes

physical-therapy

treatments in November and December 2008 record her reported
pain as ranging between six and nine on a ten-point scale. (Id.
at

521-23,

678-79,

683-85).

She

consistently

tolerated

the

exercises well, but her pain tended to increase with prolonged
standing or walking. (Id.).

17

A reevaluation form dated January 6, 2009 confirmed that
she had been prescribed therapy on October 24, 2008 and treated
from November 11, 2008 to December 16, 2008. (Tr. 673). This
evaluation reported that she continued to experience the most
pain in the morning and at night, and that the therapy provided
her only temporary relief. (Id.). Plaintiff’s pain at the time
of

this

report

was

nine

on

a

ten-point

scale,

and

she

demonstrated difficulty bending forward, as well as a decreased
tolerance for prolonged walking. (Id.). The form set goals to
increase her range of motion and strength, and to decrease her
pain

through

continued

semiweekly

therapy

for

another

four

weeks. (Id. at 674).

The

rehabilitation

medicine

service

provided

a

progress

report dated January 14, 2009 indicating that Ms. McClinton’s
pain was the same -- an eight on a ten-point scale. (Tr. 675).
This unsigned note documented a mildly antalgic gait, tenderness
in the lower back and a decreased range of motion in her back.
(Id.).

The

record

also

documents

two

physical

therapy

treatments, on February 3 and 6, 2009. (Id. at 665-66). These
notes do not document plaintiff’s reported pain.

With some of the medical records from North General being
indecipherable, we are not able to fully surmise the history of
18

Ms. McClinton’s medications prescribed by members of the North
General treatment team. As best we can understand the record,
plaintiff

was

taking

the

following

medications

under

North

General’s supervision. A record dated April 11, 2008 indicates
that plaintiff was taking Zoloft29 for her depression and anxiety
(id. at 509); however, in April she was taken off Zoloft due to
side effects and put on Lexapro. (Id. at 615). Records document
her continued use of Lexapro until her pregnancy in January
2009, and then again after her child was a year old. (See, e.g.,
Tr. 560, 737). From at least May 13, 2008 to September 24, 2008
plaintiff was taking Simvastatin,30 presumably to address high
cholesterol.

(Id.

at

458,

475,

479,

535,

547,

557,

560).

Prilosec31 was prescribed between May 2008 and March 2009 to
address stomach ailments. (Tr. 479, 532, 557, 560, 662, 686).
The doctors at North General prescribed plaintiff Gabapentin32 to
address

nerve

pain

in

August

2008;

29

however,

a

consulting

Zoloft is a brand name for Sertraline, a serotonin uptake
inhibitor. It is applied to depression, post-traumatic stress
disorder, premenstrual dysphoric disorder, and social anxiety
disorder. 3 Attorneys Medical Deskbook § 40:29.
30 Simvastatin, known by its brand name of Simcor, an
antilipemic. It is applied to elevated serum cholesterol and
triglyceride. 3 Attorneys Medical Deskbook § 40:2.
31 Prilosec is a brand name for Omeprazole. It is applied to
peptic ulcer, esophagitis, and gastroesophageal reflux disease.
3 Attorneys Medical Deskbook § 40:19.
32 Gabapentin is the generic name for Neurontin and is most
commonly used in combination with other drugs to prevent
seizures. It is also used to control nerve pain, bipolar
disorder, and anxiety. 3 Attorneys Medical Deskbook § 40:17.
19

physician recorded in October 2008 that she had ceased taking
it. (Id. at 370). Around that same time, the records indicate
that she was instead taking Naprosyn for pain. (Tr. 370, 500).
Ms. McClinton was prescribed Cymbalta by the neurology services
in December 2008 through at least June 2009, with the hope that
it would control her back pain. (Id. at 615, 675, 682). During
the summer of 2009 she took Pepcid as well as prenatal vitamins
and

iron

Keflex33

supplements.
at

an

(Id.

emergency

at
room

623,

653).

visit

in

She

was

August

prescribed

2009

for

a

problematic abscess. (Id. at 622-23).

Dr. Winston Lee
In a report dated September 12, 2011, Dr. Lee stated that
he had been providing physical therapy for Charlene McClinton at
the Columbus Center for Medical Rehabilitation] since July 18,
2011.

(Tr.

757).

Ms.

McClinton’s

testimony

confirms

these

visits. (Id. at 78, 88). Dr. Lee diagnosed Ms. McClinton, “based
on an MRI performed several years ago,” with lower back pain

33

Keflex is the brand name for the antibiotic cephalexin.
“Keflex,” Drugs.com, http://www.drugs.com/keflex.html (last
visited Aug. 28, 2015).
20

from a herniated lumbar intervetebral disc34 and stated that the
pain radiated to both of her legs. (Id. at 757).

On a disability form dated September 26, 2011, Dr. Lee
checked “yes” next to the questions of whether the claimant’s
lifting, standing, walking, sitting, pulling, and pushing were
impaired.

(Id.

occasionally

or

at

760-61).

frequently

Asked
lift

whether
and/or

the

carry,

claimant
he

could

found

her

capable of doing so only for weights of “less than 10 pounds.”
(Id. at 760). He further found that she could stand or walk only
for “less than 2 hours in an 8-hour work day.” (Id.). He checked
“less than about 6 hours in an 8-hour workday” in response to
whether the claimant could sit. (Id. at 761). He also reported
that she could balance or kneel only “occasionally.” (Id.). He
found that she could not climb, crouch, crawl, or stoop. (Id.).

Dr. Lee indicated that plaintiff had “limited” ability to
reach in all directions and could do so only “occasionally,” but
that her ability to handle, finger, feel, see, hear, or speak
was not limited. (Id. at 762). He further reported that she had

34

A disorder to the spinal structure that is the most
common cause of recurrent or long-term leg and lower back pain.
7 Attorneys Medical Advisor § 71:198.

21

difficulty

ambulating,

climbing

stairs,

and

caring

for

her

children. (Id. at 755).

2. Mental Health
The record includes treatment notes from February 19, 2008
to September 28, 2009, reflecting that Ms. McClinton received
extensive

outpatient

psychiatry

and

psychotherapy

at

North

General. (Tr. 492-520, 563-618, 689-700, 759). (See also id. at
737)(letter dated March 17, 2010 from the North General Clinical
Director

documenting

an

ongoing

treatment

relationship

since

August 30, 2007). We note that plaintiff testified, and her
social

worker

confirmed,

that

she

continued

to

undergo

such

treatment in 2011 and 2012; however, the record does not include
treatment notes for this period of time, or, for that matter,
the period from late 2009 through 2010. (Id. at 40-41, 84-85).

Dr. Jamal Kobeissi35 completed two evaluative reports for
Ms. McClinton, a “Treating Physician’s Wellness Plan Report” in

35

Dr. Jamal Hassan Kobeissi is a licensed physician in New
York, No. 253706, located in Manhattan. “Verification Services,”
New York State Office of the Professions,
http://www.nysed.gov/coms/op001/opsc2a?profcd=60&plicno=253706&n
amechk=KOB (last visited Aug. 26, 2015). ProPublica lists a
Jamal Kobeissi, MD, practicing in New York, NY and specializing
in psychiatry. He completed his residency at North General in
2009. “Jamal Kobeissi, M.D.” NetworkTherapy.com,
22

2008 and a “Medical Source Statement” in 2011, and the records
include

at

least

four

treatment

sessions

in

2008

with

Dr.

Kobeissi. (Tr. 465-66, 509, 517, 563, 567, 763-65). In the June
25, 2008 report, he diagnosed Ms. McClinton with depression and
anxiety, with an onset date of August 9, 2007. (Id. at 465). He
specified that his assessment was supported by Ms. McClinton’s
reports of psychotic symptoms when interacting with strangers,
and social withdrawal when working with authority, as well as
the fact that Ms. McClinton had trouble coping with change, that
these environmental pressures increased her symptoms, and that
she experienced depressive symptoms as an expression of anxiety
in some social situations. (Id.). The doctor described plaintiff
as “compliant with treatment,” attending scheduled appointments,
and taking prescription medicine. (Id. at 466). He noted that
she was homeless and unemployed, had a history of substance
abuse, and had been sober less than a year at the time of his
report. (Id. at 465). He determined that she would be unable to
work for six months to a year, explaining that her low energy,
sleep challenges, and anxiety would interfere with the demands
of

a

worsen

job

routine,

her

evaluation

and

symptoms.
plainly

was

that

“even

(Id.

at

informed

minimal”

466).
by

Dr.

both

job

stress

would

Kobeissi’s

2008

plaintiff’s

monthly

http://www.networktherapy.com/jamalkobeissi/ (last visited Aug.
26, 2008).
23

patient visits with him and approximately twenty entries from
group and individual therapy appointments between February 2008
and June 2008. (Id. at 492-520, 563-72).

In the October 4, 2011 report, Dr. Kobeissi indicated that
Ms.

McClinton

detailed

had

“moderate”

instructions,

interacting

restrictions

making

appropriately

simple

with

the

in

carrying

work-related
public,

and

out

decisions,
responding

appropriately to work pressures or changes in a routine work
setting. (Id. at 763-64). He evaluated her as having “slight”
restrictions
simple

and

in

detailed

understanding,

short

instructions,

instructions,

supervisors.

carrying

(Id.).

and

He

out,

and

remembering

understanding

and

remembering

interacting

also

determined

appropriately
that

she

had

with
no

restrictions in interacting appropriately with co-workers. (Id.
at

764).

Dr.

experiences

Kobeissi

psychotic

also

noted

symptoms

that

(visual

“Ms.

McClinton

hallucinations)

[]
when

interacting with strangers or people she does not know. Ms.
McClinton
symptoms
difficulty
increase

reports
when

working

coping
in

withdrawing

with

symptoms

with

authority[.]

change
when

socially

and

due
Ms.

pressure

confronted

to

depressive

McClinton
and

with

has

experiences
environmental

pressures.” (Id.). Additionally, social interactions caused her
“manifestations of depressive symptoms that result in expression
24

of anxiety” and rapid heart rate. (Id.). He further noted that
“Ms. McClinton’s impairments would be present despite alcohol
use and that her mental health diagnosis precedes her use of
alcohol.” (Id.). Neither the 2011 report nor the record yield
any details, such as the number of or dates of any patient
visits, reflecting Dr. Kobeissi’s treatment of plaintiff between
July 2009 and October 2011, when the report was authored.

Psychotherapist
extern

at

North

Jason

Karageorge,

General,36

provided

while

serving

psychotherapy

as
to

an
Ms.

McClinton eighteen times, through individual and group sessions,
between February 21, 2008 and May 1, 2008. (Tr. 493-508, 51016).

His

notes

included

information

about

Ms.

McClinton’s

functioning, and the general tenor of his comments was that Ms.
McClinton

experienced

depressive

symptoms

but

typically

responded productively to psychotherapy. (Id.). In February and
March

2008

he

noted

that

plaintiff

experienced

increased

depressive mood, loss of appetite, insomnia, increased fatigue,
and

stressors

related

to

homelessness,

physical

pain,

and

marital strife. (Id. at 493-505). She described not feeling much
36

From February 21, 2008 to May 1, 2008 Mr. Karageorge was
a psychology extern, treating patients with trauma, addiction,
and anger management at North General Hospital. “Training and
Experience,” Jason P. Karageorge, Ph.D.,
http://www.jasonkarageorgephd.com/Training---Experience.html
(last visited Aug. 28, 2015).
25

like

her

true

self

and

expressed

great

anger

over

the

bureaucratic frustrations that she faced in attempting to solve
her homelessness. (Id.). His February 21, 2008 note indicated
that Ms. McClinton experienced a single incident of suicidal
ideation. (Id. at 493). Her mother’s death, combined with her
recent

sobriety,

also

challenged

her

and

increased

her

depression, which led her to sleep and eat more. (Id. at 498).

Mr.

Karageorge’s

early

April

2008

notes

again

document

plaintiff’s anger and frustration, but also a decrease in her
depression

when

assignment.

(Id.

she

stopped

going

at

507-08).

Her

to

her

mood

job-placement

demonstrated

some

improvement throughout April 2008, but the focus of the sessions
was

on

the

maintaining

challenges
her

she

sobriety.

faced

in

The

her

marriage

treatment

and

notes

with
from

psychotherapists who met with Ms. McClinton in either individual
or group sessions after May 1, 2008 document similar themes, as
well

as

the

additional

stress

of

the

departure

of

Mr.

Karageorge. (Id. at 518, 520).

The

records

also

include

treatment

notes

from

a

psychiatrist identified only as Dr. Branch,37 who met with Ms.

37

The records do not identify the first name of Dr. Branch
and we were not able to confirm a licensed psychiatrist in New
26

McClinton twenty times between July 7, 2008 and June 8, 2009.
(Tr. 566, 568, 570, 574, 576, 581, 583-85, 587-90, 593, 595-96,
599, 605-06, 611). On June 26, 2009, using the DSM axes,38 Dr.
Branch diagnosed Ms. McClinton as follows:

Axis I: Depressive Disorder NOS (311), Alcohol
Dependence in Sustained Full Remission (303.90),
Cocaine Dependence in Sustained Full Remission
(304.20)
Axis II: Deferred (799.9)
Axis III: Herniated lumbosacral disc(s), Dyslipidemia,
Obesity.
Axis IV: Loss of mother, Unemployment, Unstable
Housing (couples shelter), unplanned pregnancy.
Axis V: 60[39]

York State by that name who may have treated plaintiff at North
General.
38 The DSM-IV is the Diagnostic and Statistical Manual of
Mental Disorders, 4th Edition. It is a publication that lists
assessment criteria for every mental disorder diagnosis. 1
Attorneys Medical Deskbook § 5:6. “The coding in the manual is
used
by
psychiatrists,
clinical
psychologists,
family
therapists, psychiatric nurses, and all other mental health
professionals. Health insurers and Medicare require this coding
for reimbursement.” 2 Attorneys Medical Deskbook § 25:51.10.
Psychiatric diagnoses under the DSM-IV are structured along five
axes. Axis I is the clinical coding of the specific psychiatric
disorder; Axis II is any diagnosis of an underlying personality
disorder; Axis III provides diagnosis of medical condition(s)
affecting a mental disorder; Axis IV indicates the presence of
any psychosocial or environmental problems affecting the care of
the disorder; and Axis V is an assessment of overall functioning
such as the Global Assessment of Functioning Scale. 2 Attorneys
Medical Deskbook § 25:51.10.
39
This number refers to the Global Assessment of
Functioning Scale (“GAF”). Clinicians use GAF to rate a
27

(Id. at 615-16). In the same entry as this diagnosis, Dr. Branch
reported that she was prescribed Zoloft in February 2008, but
had changed to 10 mg of Lexapro in April 2008 because the Zoloft
did not appear to help and had caused dry mouth. (Id. at 615).
Ms. McClinton was later changed to Cymbalta, but stopped taking
psychotropic medications early in 2009, presumably because she
had become pregnant. (Id.). Ms. McClinton had not “reported or
exhibited any symptoms or signs respectively of depression” from
going off the psychotropic medications in February 2009 and late
June of that year. (Id.).

Dr. Branch noted that her attendance in group was suboptimal, likely due to “increased social stressors,” such as
living in a homeless shelter, being separated from her children,
and “the obvious grieving for the loss of her therapist,” who
had left the hospital staff. (Id.). Additionally, Dr. Branch
noted that Ms. McClinton did not “100%” comply with her Lexapro
medication -- we presume this means other than when she was

claimant’s ability to function on a scale of 1 to 100.
Claimant’s score of 60 puts her in in a functional status: above
80 is considered excellent functioning and 40 or below signifies
dysfunction typical of hospitalized patents. 2 Attorneys Medical
Deskbook § 18:10. A GAF score between 51 and 60 is indicative of
“[m]oderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) [or] moderate difficulty in
social, occupational, or school functioning (e.g. few friends,
conflicts with peers or co-workers).” DSM-IV-TR 34.
28

pregnant -- but had found it beneficial in warding off more
extreme

depressive

symptoms.

(Id.).

She

denied

having

had

suicidal ideations except for once in September of 2008, and she
attributed

that

incident

to

severe

back

pain.

(Id.).

Dr.

Branch’s report concluded that she would continue weekly group
therapy,

monitor

for

signs

of

a

relapse

into

more

severe

symptoms, and reevaluate medication options after she delivered
her baby. (Id. at 616).

Dr. Inderpreet Dhillon40 met with Ms. McClinton six times
between July 6, 2009 and September 28, 2009 in group-therapy
sessions. (Tr. 618, 691, 694, 697-99). His records consistently
document her mood as euthymic -- that is, non-depressed -- and
stable. (Id.). Dr. Dhillon described her as an empathic and
self-disclosing member of the group. (Id.).

40

Dr. Inderpreet Dhillon did his residency at North General
at the time plaintiff was being treated there. “Inderpreet
Dhillon, MD,” My Doctor Online,
https://mydoctor.kaiserpermanente.org/ncal/provider/inderpreetdh
illon/about/professional?ctab=About+Me&to=1 (Last visited Aug.
28, 2015).
29

On March 17, 2010 Dr. William Carr,41 identified as the
North

General

clinical

director,

diagnosed

Ms.

McClinton

as

follows:

Axis I: Depressive Disorder NOS (311), Alcohol
Dependence in Sustained Full Remission (303.90),
Cocaine Dependence in Sustained Full Remission
(304.20)
Axis II: Deferred (799.9)
Axis III: Herniated lumbosacral disc(s), Dyslipidemia,
Obesity.
Axis IV: Loss of mother, Unemployment, Housing Issues,
New baby, pain.
Axis V: 60

(Tr. 754). In the same entry as this diagnosis, Dr. Carr stated
that Ms. McClinton “participates in a psychotherapy group which
meets

weekly”

and

“is

also

seen

for

medication

management.”

(Id.). There are no treatment records past September 28, 2009.

3. Cocaine Addiction
The record demonstrates that Ms. McClinton had graduated
from a drug program for cocaine and alcohol in 2006, and that
she had not had any relapses. (Tr. 90). Additionally, both Dr.
41

Vitals.com lists a Dr. William M. Carr, practicing in New
York, NY, as a psychologist.
http://www.vitals.com/doctors/Dr_William_M_Carr_1/profile (last
visited June 18, 2015).
30

Branch

and

Dr.

Carr

diagnosed

Ms.

McClinton

with

“Cocaine

Dependence in Sustained Full Remission (304.20).” (Id. at 616,
754).

Consulting

examiners

Dr.

Harding

and

Dr.

Bornstein

provided the same diagnosis. (Id. at 367, 395).

The North General records offer conflicting evidence of Ms.
McClinton’s cocaine use. (Compare id. at 709 and id. at 730).
Specifically,

while

the

October

6,

2008

cocaine

test

was

positive, a follow-up urine screening conducted on October 27,
2008 for cocaine was negative. (Id.). A past history of cocaine
use is also noted in a patient history from October 27, 2008.
(Id. at 706). It appears from the hospital records that Ms.
McClinton was scheduled to undergo a hysteroscopy42 on October 6,
2008, but that the procedure was rescheduled for October 27,
2008 because she had tested positive for cocaine. (Id. at 70304,

709).

The

procedure

was

conducted

on

October

27,

2008,

presumably once her urine test was negative for cocaine or any
other drugs. (Id. at 710-30).

42

An examination of the endometrial cavity of the uterus
using a fiber optic instrument. 2 Attorneys Medical Deskbook §
17:20.
31

C. Medical
Records:
Physicians

Consulting

Physicians

and

Non-

1. Federation Employment & Guidance Service (“FEGS”)43
In December 2007 and January 2008, the FEGS team prepared a
multidisciplinary

report

on

Ms.

McClinton

regarding

her

“biopsychosocial” needs relative to vocational rehabilitation.
(Tr.

399-462).

This

report

was

updated

in

June

2008,

but

apparently without any additional testing or examination. (Id.
at 456).

Records
indicate
Hospital,

that

dated
Dr.

December
Uko

evaluated

31,

Okpok,44

Ms.

2007

an

and

January

internist

McClinton

and

at

22,

2008

Bronx-Lebanon

documented

abnormal

musculoskeletal conditions and abnormal mood and affect. (Id. at
409-14,

417-18,

437,

442-47,

457).

On

December

31,

2007

plaintiff reported no present pain during her examination, but
stated that it could rise to nine on a ten-point scale. (Id. at
43

Federation Employment & Guidance Service (FEGS) is a
health and human services agency that provides health,
disability, and family assistance throughout metropolitan New
York. “Who We Are,” FEGS, http://www.fegs.org/who-weare#.VaQKWFJmpCQ (last visited Aug. 11, 2015).
44 New York State has a listing for Dr. Uko Okpok, No.
227087. “Verification Searches,” New York State Office of the
Professions,
http://www.nysed.gov/coms/op001/opsc2a?profcd=60&plicno=227087&n
amechk=OKP (last visited Aug. 28, 2015). Dr. Okpok is deceased.
See “Akwa Ibom Politics,” Blogspot,
http://akwaibompolitics.blogspot.com/2011/12/funeral-serviceheld-for-uko-moses.html (last visited Aug. 28, 2015).
32

409). Dr. Okpok opined that Ms. McClinton could sit for four to
five

hours

in

an

eight-hour

period,

that

she

had

limits

in

reaching and grasping, that she should limit pulling to one to
three

hours,

and

that

she

should

not

perform

any

lifting,

kneeling, standing, climbing, walking, or bending. (Id. at 410).
An orthopedics examination conducted on January 10, 2008 appears
to

have

provided

more

extensive

evaluations

of

plaintiff’s

capacity to exert herself in various ways, but the substance of
these entries cannot be discerned from the copy in the record,
aside

from

radiating

a

typed

back

pain

entry
that

confirming
had

worsened

the

diagnosis

with

weight

of

non-

gain

and

identifying limited flexion and extension. (Id. at 419-26).

On January 22, 2008, after various tests and x-rays were
taken, Dr. Okpok identified the following conditions affecting
her capacity for employment: spondylosis of the lumbar spine,
knee

pain,

dyspnea

on

exertion

and

weight

gain,

dysthymic

disorder and generalized anxiety disorder.45 (Id. at 412). He
noted that her complaints of back pain were her most severe
impairment, and that her back pain had begun a year earlier and
had been worsening, particularly with weight gain. (Id.). The

45

A chronic disorder characterized by high levels of
anxiety and lack of a specific focus or cause. 6 Attorneys
Medical Advisor § 45:2.
33

only physical findings were limited flexion and extension and
minor

degenerative

changes

revealed

on

x-rays.

(Id.).

This

evaluation, performed in January 2008, is repeated several times
in the FEGS treatment record. (Id. at 413, 437, 447, 457).

The

FEGS

team’s

psychiatric

evaluation

of

Ms.

McClinton

included an extensive social and psychological history revealing
depressive symptoms of sleep interruption, appetite disruption,
and feelings of helplessness and worthlessness stemming from her
mother’s

death

in

the

summer

of

2007,

living

in

a

homeless

shelter, and a past history of substance abuse. (Id. at 411).
On January 7, 2008, Dr. Jorge Kirschtein46 prepared a psychiatric
report on plaintiff (Tr. 427-34), and diagnosed Ms. McClinton as
follows:

Axis I: Dysthymic Disorder (300.4); Generalized
Anxiety Disorder (300.02); Eating Disorder NOS47
(307.50)
Axis II: Other
Comments: Axis II: Deferred.
Axis III:
Comments: Back and Knee Pains, Dyspnea on exertion–
weight gain; Lipid Profile – Total Cholesterol 252;
46

Dr. Jorge Kirschstein is an attending psychiatrist at
Bronx-Lebanon Hospital. “Jorge Kirschstein, M.D.,” Bronx-Lebanon
Hospital Center, http://www.bronxcare.org/physicians/find-aphysician/detail/jorge-kirschtein/ (last visited Aug. 27, 2015).
47 “NOS refers to “[n]ot otherwise specified.” 1 Attorneys
Medical Deskbook § 5:16.
34

Lipid Profile – LDL 168; CHEM-20 – Glucose 45; CHEM-20
– GGT 58
Axis IV: Educational Problems; Occupational Problems;
Problems with access to health care services
Axis V Current: 40
Axis V Past Year: 65

[48]

(Id. at 431-32).

Supporting

the

FEGS

evaluations

are

visit

entries

from

social worker Robin Kaynor.49 On December 31, 2007, Ms. Kaynor
conducted

an

intake

evaluation

and

patient

history

for

Ms.

McClinton documenting that for “several days” over the previous
two weeks, she felt down, depressed, or hopeless, and that she
felt that she had let her family and herself down. (Tr. 404).
She also answered “more than half of the days” when asked how
often

she

felt

tired

and

had

appetite

problems.

(Id.).

Ms.

Kaynor gave plaintiff a PHQ-9 score of 7, which is indicative of
mild

depression.

(Id.).50

She

noted

48

that

Ms.

McClinton

could

A GAF score of 40 or less is indicative of severe
dysfunction and is usually found in hospitalized patients. 2
Attorneys Medical Deskbook § 18:10. A score of 65 indicates some
mild symptoms or difficulty in functioning, but generally a good
level of functioning. Id.
49 Robin Kaynor is a social worker at FEGS. “Robin Kaynor,”
lead411, https://www.lead411.com/Robin_Kaynor_17461622.html
(last visited Aug. 27, 2015).
50 PHQ-9 refers to the Patient Health Questionnaire, a 9item questionnaire that is used to measure the degree of
depression in elderly patients. Each question addresses whether
35

travel

independently

by

bus

(and

had

taken

the

bus

to

the

appointment) but was in pain when she walked long distances.
(Id. at 405). Ms. McClinton reported to the social worker that
she was able to do household chores, including dishes, cleaning,
laundry, and grocery shopping. (Id.).

2. Dr. Justin Fernando51
On October 8, 2008, Dr. Fernando conducted a consultative
orthopedic examination of Ms. McClinton at the request of the
SSA. (Tr. 369-74). Relevant to plaintiff’s claims, Dr. Fernando
diagnosed plaintiff with chronic, non-radiating back pain and
obesity, indicating that she had minor limitations for bending
and diskogenic disease in her lumbar spine, but no neurological
or vascular compromise. (Id. at 372). He recorded plaintiff’s

the patient has been bothered by a problem, and can be answered
with “not at all” (0 points), “several days” (1 point), “more
than half the days” (2 points), or “nearly every day” (3
points). The points are added up, where a total score of 5-9
indicates mild depression, 10-14 indicates moderate depression,
15-19 indicates moderate to severe depression, and 20 or more
indicates severe depression. 2 Attorneys Medical Deskbook §
18:10.
51 Justin Fernando, M.D. is licensed in the State of New
York, No. 243090. “Verification Searches,” New York State Office
of the Professions,
http://www.nysed.gov/coms/op001/opsc2a?profcd=60&plicno=243090&n
amechk=FER (last visited Aug 27, 2015). He specializes in cardio
thoracic surgery. “Dr. Justin Fernando, M.D.,” HealthGrades.com,
http://www.healthgrades.com/physician/dr-justin-fernando-gg8qm
(Last visited Aug. 27, 2015).

36

social and medical history, noting her chief complaint of nonradiating back pain, but no pain in her knees despite undergoing
surgery as an infant. (Id. at 239-40). He also noted a gunshot
wound from 2000 and her past drug and alcohol dependency. (Id.).
Dr. Fernando observed that she did not appear to be in acute
distress, walked with a normal gait and needed no help getting
on or off the exam table or rising from a chair. (Id. at 371).
He documented limited flexion but full extension in her lumbar
spine, along with mild tenderness along the lumbosacral spine
but normal straight-leg raising results. (Id.).52 Otherwise, his
clinical observations revealed no abnormalities. (Id.). The xrays he ordered of her right knee and her lumbo-sacral spine
were negative. (Id. at 371-74). Dr. Fernando noted that Ms.
McClinton

reported

taking

10

mg

of

Lexapro

and

500

mg

of

Naproxen, and that she had taken 300 mg of Neurontin,53 10 mg of
Cyclobenzaprine, and 50 mg of Tramadol in the past. (Id. at
370).

52

Straight-leg raising is an examination to detect if the
patient’s radicular symptoms are reproduced through stretching
the sciatic nerve. The extent to which the leg can be lifted is
recorded, where a lift of 70 to 80 degrees without discomfort
demonstrates no pathology. 7 Attorneys Medical Advisor § 71:8.
53 Neurontin is a brand name for Gabapentin. See p. 19 n.
32, supra.
37

3. B. Beavan54
On October 29, 2008, based on a medical evidence and file
review, B. Beavan concluded that the medical record “partially
supported” Ms. McClinton’s allegations of pain and incapacity,
but

ultimately

found

that

Ms.

McClinton

had

the

residual

functional capacity55 (“RFC”) for “light” work. (Tr. 375-80).56
Specifically, B. Beavan determined that the evidence supported
plaintiff’s ability to occasionally lift or carry twenty pounds,
frequently lift or carry ten pounds, stand or walk for six hours
in an eight-hour day, and push or pull without limitations. (Id.
at 376). He found the need for occasional limitations to the
non-exertional
stooping,

activities,

kneeling,

such

crouching,

and

54

as

climbing,

crawling,

balancing,

because

of

the

The individual who completed this medical file review is
not identified sufficiently to confirm his or her identity or
whether he or she has a medical degree, much less any
specialization.
55 A residual functional capacity assessment refers to the
assessment of one’s maximum abilities despite her physical or
mental limitations. 20 C.F.R. §§ 416.945(a)(1).
56 Light work is defined by 20 CFR § 416.967(b). “Light work
involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the
ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors
such as loss of fine dexterity or inability to sit for long
periods of time.” 20 C.F.R. § 416.967.
38

decreased range of motion in her lumbar spine. (Id. at 377). He
also cited plaintiff’s ability to perform the light activities
of daily living as further support his RFC assessment. (Id. at
379).

4. Dr. Michelle Bornstein57
On October 8, 2008 Dr. Bornstein performed a consultative
examination

at

the

behest

of

the

SSA

and

gave

a

“fair

to

guarded” prognosis. (Tr. 365-68). Dr. Bornstein diagnosed Ms.
McClinton

with

adjustment

disorder58

with

depressed

mood

and

mixed anxiety, as well as cocaine and alcohol dependence in
remission. (Id. at 367). She noted back pain as a medically
relevant aggravator to her symptoms at Axis III, but did not
provide

an

Axis-IV

or

Axis-V

diagnosis,

even

though

she

documented stressors such as living in a homeless shelter and
long-term

unemployment.

(Id.

at

57

365,

368).

Dr.

Bornstein

Michelle D. Bornstein is a licensed but inactive
psychologist in New York State, No. 016990. “Verification
Searches,” New York State Office of the Professions,
http://www.nysed.gov/coms/op001/opsc2a?profcd=68&plicno=016990&n
amechk=BOR (last visited Aug. 27, 2015). She currently practices
in Kentucky. “Dr. Michelle Bornstein, Psy.D.,” HealthGrades.com,
http://www.healthgrades.com/provider/michelle-bornsteingjm8j#tab=about (last visited Aug. 27, 2015).
58
Adjustment
disorders
are
characterized
by
strong
reactions to stressful life events. 6 Attorneys Medical Advisor
§ 45:28. It is considered to be similar to, but less severe
than, posttraumatic stress disorder, and can occur in reaction
to the death of a loved one. Id.
39

conducted a mental-status exam and found Ms. McClinton to be
dysphoric and dysthymic, but otherwise neatly groomed with a
normal

gait

delusions,

and

coherent

possessing

and

behavior,

intact

without

hallucinations

concentration

and

or

memory

skills. (Id. at 366-67). However, the doctor found plaintiff’s
cognitive functioning to fall in the “low average to borderline
range.” (Id. at 367). The psychologist opined that plaintiff
could

follow

tasks,

simple

maintain

appropriately,
amounts

of

instructions

concentration

maintain

stress

and

regular

and

directions,

attention,

schedules,

appropriately,

and

learn

make

cope

new

decisions

with

adequately

limited

relate

to

others, though, due to her anxiety and depressive symptoms, she
might

require

supervision

when

performing

tasks

that

are

mental

RFC

complex. (Id.).

5. T. Harding59
On

October

30,

2008,

T.

Harding

prepared

a

assessment based on a review of the medical evidence in the
record. (Tr. 381-97). T. Harding determined that plaintiff was
moderately

limited

in

terms

of

her

ability

to

maintain

concentration, interact appropriately with the general public,

59

The individual who completed this medical file review is
not identified sufficiently to confirm his or her identity or
whether he or she has a medical degree.
40

accept instruction and respond appropriately to criticism, and
respond appropriately to changes in the work setting. (Id. at
395-96). He evaluated the record with regard to each of the
regulatory listings for mental illness and found that plaintiff
had

systems

of

adjustment

disorder

that

did

not

precisely

satisfy the regulatory criteria. (Id. at 384). He found that
plaintiff
functioning
activities

had

moderate

and
of

limitations

concentration,

daily

life.

(Id.

and
at

a

in

maintaining

mild

391).

limitation
With

regard

social
in

her

to

the

paragraph “C” criteria, T. Harding indicated that no evidence in
the record established such a sustained manifestation of mental
illness. (Id. at 392).60

T. Harding appears to have based this determination on the
evidence that plaintiff is able to perform light activities of
daily

living,

family

and

can

travel

friends.

(Id.

independently,
at

397).

60

He

and

socializes

found

with

plaintiff’s

“Paragraph C” criteria refer to paragraph C of Listings
12.04 and 12.06. Paragraph C requires a medically documented
chronic affective disorder of at least 2 years’ duration, with
at least one of the following: (1) repeated episodes of
decompensation, each of extended duration; (2) a residual
disease process that resulted in such a marginal adjustment that
even a minimal increase in mental demands of change in the
environment would be predicted to cause the individual to
decompensate; or (3) a current history of one or more years’
inability to function outside a highly supportive living
environment. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.04
(C), 12.06(C).
41

allegations regarding her mental impairments and consequential
incapacity to be “partially supported” by the evidence. (Id.).

D. Vocational Expert Evidence
On

two

separate

occasions

the

ALJ

posed

a

written

interrogatory for Mr. Raymond E. Cestar, a vocational expert,
and then also queried Mr. Cestar on these interrogatories at an
April 5, 2012 hearing. (Tr. 49-63, 341-45, 351-55). On November
7,

2011,

emphasizing

the
an

ALJ
RFC

provided
that

used

the
the

following
regulatory

hypothetical,
definition

for

sedentary work -- but oddly employing the imprecise language
“light/sedentary”

not

found

in

the

regulations

--

with

additional mental RFC accommodations (“Sedentary Hypothetical”):

Assume a hypothetical individual who was born on April
23, 1967, has a limited education and is able to
communicate in English as defined in 20 CFR 404.1564
and 416.964, and has work experience [of being selfemployed from 1995-2001]. Assume further that this
individual has the residual functioning capacity (RFC)
to perform light/ sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a)[61] except simple repetitive

61

20 CFR § 416.967(a) defines “Sedentary work. 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.” Id.
42

tasks with no more than occasional contact with
members of public.
Could the individual described [above] perform any of
the claimant’s past jobs as actually performed by the
claimant or as normally performed in the national
economy?
***
Could the individual described [above] perform any
unskilled occupations with jobs that exist in the
national economy?

(Id. at 343-44). In response, Mr. Cestar first determined that
Ms. McClinton had been self-employed from 1995 to 2001 (id. at
342), and then replied “no” to whether she could do any of her
past jobs, because he did not know the nature of that selfemployment. (Id. at 343). In answer to the second question, he
listed three occupational titles and corresponding codes from
the Dictionary of Occupational Titles62 for jobs that existed in
the

national

hypothetical

economy
could

do

which
--

an

individual

cafeteria

described

attendant,

by

the

311.677-010;

bagger, 920.687-018; and cleaner/housekeeper, 323.687-014. (Id.
at 344).

62

The Dictionary of Occupational Titles (“DOT”), last
published by the U.S. Department of Labor in 1991, provides
basic occupational information in the United States Economy. The
SSA, by regulation, relies on the DOT extensively to determine
if jobs exist in the national economy for which a claimant is
qualified, given his or her residual functional capacity. See,
e.g., 20 C.F.R. § 416.966-416.969.
43

On

February

6,

2012,

the

ALJ

provided

a

second

hypothetical, describing an individual limited to doing light
work, as defined by the regulations,63 -- but again with the
imprecise

language

“light/sedentary”

not

found

in

the

regulations -- with the accommodation to sit or stand at will
and

the

same

mental

RFC

from

the

prior

inquiry

(“Light

Hypothetical”):

Assume a hypothetical individual who was born on April
23, 1967, has a limited education and is able to
communicate in English as defined in 20 CFR 404.1564
and 416.964, and has work experience [of selfemployment from 1994-2001].[64] Assume further that this
individual has the residual functioning capacity (RFC)
to perform light/sedentary work as defined in 20 CFR
404.1567(b) and 416.967(b) except option to sit/stand
at will, simple repetitive tasks with no more than
occasional contact with members of public.

63

20 CFR § 416.967(b) defines “Light work. Light work
involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the
ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors
such as loss of fine dexterity or inability to sit for long
periods of time.” Id.
64 We note that the VE’s answer to the Sedentary
Hypothetical was that plaintiff was self-employed from 1995 to
2001, but his response to the Light Hypothetical stated that
plaintiff had been self-employed from 1994 to 2001. (Tr. 343,
353).
44

Could the individual described [above] perform any of
the claimant’s past jobs as actually performed by the
claimant or as normally performed in the national
economy?
***
Could the individual described [above] perform any
unskilled occupations with jobs that exist in the
national economy?

(Id.

at

353-54).

As

before,

Mr.

Cestar

interpreted

the

information from plaintiff’s earnings records to indicate that
she

had

been

self-employed,

but

answered

“no”

to

the

first

question because he did not know the nature of her prior work.
(Id.). In response to the second question, Mr. Cestar replied
that there were insufficient jobs in the national economy for a
person described by the hypothetical because “the higher level
occupations which could be cited . . . do require more than
casual

contact

with

the

general

public.

There

is

only

one

sedentary level job . . . that permits the elective sit/stand
option.” (Id. at 354).

On

April

plaintiff’s
regarding

5,

counsel,
his

2012,

in

the

ALJ

responses

to

response
called
the

Mr.

two

to

objections

Cestar
previous

to

from

testify

vocational

interrogatories. (Id. at 49-63). Plaintiff’s counsel stated that
his objections were “on two grounds. One was the hypothetical
was inadequate and also that the responses that were given were
45

improper.” (Id. at 51). Under examination, the VE testified that
he

had

deduced

plaintiff’s

prior

self-employment

from

her

earnings statements, and that he was not aware of the nature of
plaintiff’s prior work. (Id. at 53). He agreed with plaintiff’s
attorney

that

his

determination

that

she

had

prior

work

experience would have been incorrect if her earnings statements
merely reflected welfare payments. (Id. at 54). The VE also
stated that the file provided to him did not include direct
medical evidence, but rather was limited to the hypotheticals
provided by the ALJ. (Id. at 54-56). Both the ALJ and the VE
stated at the hearing that the VE’s job is limited to responding
to the hypothetical and does not call for evaluating the direct
medical evidence. (Id.). In a heated exchange, the ALJ defended
his hypothetical as having been informed by the evidence in the
record and stated that his RFC included limitations based on her
mental impairments. (Id. at 56-57).

E. Testimony from Plaintiff’s Social Worker
At the June 6, 2012 hearing, Audrey Tinsdale,65 a social
worker

from

the

Sauti

Yetu

Center

65

for

African

Women

and

Ms. Tinsdale is a licensed social worker, LMSW from
November 2011. “Verification Searches,” New York State Office of
Professions,
http://www.nysed.gov/coms/op001/opsc2a?profcd=72&plicno=085213&n
amechk=TIN (last visited Aug. 27, 2015). The Sauti Yetu Center
46

Families, testified regarding her observations of plaintiff’s
physical and mental capacities. (Tr. 33-42). As a preventative
social worker, Ms. Tinsdale visited Ms. McClinton at her home
twice a month beginning in September 2011 and continuing until
the time of the hearing on a referral from the Administration
for Children’s Services regarding plaintiff’s teenage son. (Id.
at 36, 41). She testified that Ms. McClinton was mostly seated
when they met, that she could not walk quickly, and that she
walked with a “slight limp.” (Id. at 36). Ms. Tinsdale also
testified that she observed plaintiff to be “a bit depressed.”
(Id.

at

37).

She

also

heard

Ms.

McClinton

explain

that

she

preferred to be seated, but that even sitting for too long would
be painful, and leaving her home to find a job would be a
struggle. (Id.). Ms. Tinsdale observed that during her biweekly
visits

between

September

2011

and

June

2012

plaintiff

consistently moved with demonstrable pain, particularly in her
back and her legs. (Id. at 39). She confirmed that Ms. McClinton
attends psychotherapy regularly, and that she does a good job
tending to her toddler, even though she is unable to pick her up
or follow after her. (Id. at 40-41).

for African Women and Families provides community-based direct
services to African immigrant women and families in New York
City. Sauti Yetu Center for African Women and Families,
http://www.sautiyetu.org/ (last visited Aug. 27, 2015).
47

III.

Standards for SSI Eligibility
An applicant is “disabled” within the meaning of the Act if

she “is unable to engage in any substantial gainful activity by
reason

of

any

medically

determinable

physical

or

mental

impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). To qualify
for

benefits,

the

claimed

disability

must

result

“from

anatomical, physiological, or psychological abnormalities which
are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” Id. § 1382c(a)(3)(C); accord Tejada v.
Apfel, 167 F.3d 770, 773 (2d Cir. 1999). In addition to being
disabled as defined by the statute, the applicant must also
demonstrate that she is financially eligible for benefits. See
42 U.S.C. § 1382(a); Tejada, 167 F.3d at 773 n.2.

The

Act

requires

that

the

relevant

physical

or

mental

impairment be “‘of such severity that [plaintiff] is not only
unable to do [her] previous work but cannot, considering [her]
age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.’”
Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004)(quoting 42
U.S.C. § 423(d)(2)(A)). If the claimant can perform substantial
gainful work existing in the national economy, it is immaterial,
48

for purposes of the Act, that an opening for such work may not
be

found

in

the

immediate

area

where

she

lives

or

that

a

specific job vacancy may not exist. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B).

In

assessing

a

claim

of

disability,

the

Commissioner must consider: “(1) objective medical facts; (2)
diagnosis

or

medical

subjective

evidence

plaintiff

and

of

other

opinions
pain

based

and

witnesses;

on

those

disability
and

(4)

facts;

testified
the

to

(3)
by

claimant’s

background, age, and experience.” Williams ex rel. Williams, 859
F.2d at 259.

The

SSA

regulations

set

forth

a

five-step

sequential

process under which an ALJ must evaluate disability claims. 20
C.F.R. § 416.920(a)(4)(i)-(v). The Second Circuit has described
this sequential process as follows:

First, the [Commissioner] considers whether the
claimant is currently engaged in substantial gainful
activity. If he is not, the [Commissioner] next
considers whether the claimant has a “severe
impairment” which significantly limits his physical or
mental ability to do basic work activities. If the
claimant suffers such an impairment, the third inquiry
is whether, based solely on medical evidence, the
claimant has an impairment which is listed in Appendix
1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him
disabled without considering vocational factors such
as age, education, and work experience; the
[Commissioner] presumes that a claimant who is
afflicted with a “listed” impairment is unable to
perform substantial gainful activity. Assuming the
49

claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe
impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is
unable to perform his past work, the [Commissioner]
then determines whether there is other work which the
claimant could perform.

Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir. 1996)(emphasis in
original) (quoting Rivera v. Schweiker, 717 F.2d 719, 722-23 (2d
Cir. 1983)).

Plaintiff

bears

the

burden

of

proof

on

the

first

four

steps, but the Commissioner bears the burden on the fifth step
to

demonstrate

the

existence

of

jobs

in

the

economy

that

plaintiff can perform. See, e.g., id. at 45 (quoting same);
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). At the
fourth step, which requires assessing the RFC, if a claimant has
more than one impairment, all medically determinable impairments
must be considered, including those that are not “severe.” 20
C.F.R. § 416.945(a)(2). The assessment must be based on all
relevant medical and other evidence, such as physical abilities,
mental

abilities,

limitations

that

and
could

symptomology,
interfere

including

with

work

pain

and

activities

other
on

a

regular and continuing basis. 20 C.F.R. § 416.945(a)(1)-(3). See
also

Clarification

of

Rules

Involving

Residual

Functional

Capacity Assessments; Clarification of Use of Vocational Experts

50

and

Other

Sources

at

Step

4

of

the

Sequential

Evaluation

Process; Incorporation of “Special Profile” Into Regulations, 68
Fed. Reg. 51153-01 (Aug. 26, 2003).

Normally, in meeting her burden on the fifth step, the
Commissioner

may

rely

on

the

Medical-Vocational

Guidelines

contained in 20 C.F.R. Part 404, Subpart P, Appendix 2, commonly
referred to as “the Grid[s].”66 Zorilla v. Chater, 915 F. Supp.
662, 667 (S.D.N.Y. 1996). As the regulations state:

When the limitations and restrictions imposed by your
impairment(s) and related symptoms, such as pain,
affect only your ability to meet the strength demands
of jobs, . . . and your specific vocational profile is
listed in a rule contained in appendix 2, we will
directly apply that rule to decide whether you are
disabled.[67]

66

“The Grid classifies work into five categories based on
the exertional requirements of the different jobs.” Zorilla, 915
F. Supp. at 667 n.2. “Specifically, it divides work into
sedentary, light, medium, heavy, and very heavy, based on the
extent of the requirements in the primary strength activities of
sitting, standing, walking, lifting, carrying, pushing, and
pulling.” Id. Based on these factors, the SSA uses the Grids to
evaluate whether the claimant can engage in any other
substantial gainful work that exists in the economy. Id. at 667.
67 “Limitations are classified as exertional if they affect
your ability to meet the strength demands of jobs. The
classification of a limitation as exertional is related to the
United State Department of Labor’s classification of jobs by
various exertional levels (sedentary, light, medium, heavy, and
very heavy) in terms of the strength demands for sitting,
standing, walking, lifting, carrying, pushing, and pulling.” All
other limitations are considered non-exertional. 20 C.F.R. §
416.969a(a).
51

20 C.F.R. § 416.969a(b). However, “‘exclusive reliance on the
grids is inappropriate where the guidelines fail to describe the
full extent of a claimant's physical limitations.’” Butts, 388
F.3d at 383 (quoting Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir.
1999)). These other limitations -- called non-exertional in the
regulations (see 20 C.F.R. § 416.969a) -- include “‘limitations
or restrictions which affect [a claimant=s] ability to meet the
demands
demands

of

jobs

other

other
than

than

the

sitting,

strength
standing,

demands,

that

walking,

is,

lifting,

carrying, pushing or pulling. . . .’” Samuels v. Barnhart, 2003
WL 21108321, *11 n.14 (S.D.N.Y. May 14, 2003) (quoting 20 C.F.R.
§

416.969a(a));

“[t]he
exhibits

Grids
a

see

are

also

20

inapplicable

significant

C.F.R.
in

§

416.969a(c)).

cases

non-exertional

where

the

impairment

Indeed,
claimant

(i.e.,

an

impairment not related to strength).” Selian v. Astrue, 708 F.3d
409, 421 (2d Cir. 2013) (citing Rosa, 168 F.3d at 82; 20 C.F.R §
404.1569a(c)(2)).

IV.

The ALJ’s Decision
On July 13, 2012, ALJ Heyman rendered a decision finding

that plaintiff was not disabled within the definition of the
Act. (Tr. 13). The ALJ determined that Ms. McClinton had not

52

been disabled since her alleged onset date of April 22, 2008.
(Id. at 12).

At

step

one,

the

ALJ

found

that

the

claimant

had

not

engaged in substantial gainful activity after the application
date. (Id. at 14). At step two, he determined that Ms. McClinton
suffered

from

a

variety

of

impairments

in

the

form

of

degenerative disc disease, obesity, a depressive disorder, and
substance

abuse

determined

that

in

remission.

these

(Id.

impairments

at
were

14).

The

severe

ALJ

due

further

to

their

combined effect. (Id.).

At

step

three,

impairments

did

Subpart

Appendix

P,

not

the
meet
1.

ALJ
the

(Id.

ruled

that

the

claimant’s

listings

in

20

at

He

observed

15).

CFR

Part

404,

that

Ms.

McClinton’s back condition did not meet or equal listing 1.04
because

there

demonstrated
“mostly

was

no

through

normal

evidence
the

of

negative

neurological

nerve-root
x-ray,

examinations.”

involvement

negative
(Id.).

as

MRI,

and

for

Ms.

As

McClinton’s mental impairments, he concluded that they did not
meet

or

equal

listing

12.04

because

at

least

two

of

the

“paragraph B” criteria68 for mental impairments were not met.

68

The “paragraph B” criteria are: (1) marked restriction of
activities of daily living; (2) marked difficulties in
53

(Id.).

Specifically,

first,

as

reported

by

FEGS

and

Dr.

Bornstein, the ALJ found that in “activities of daily living the
claimant has no restrictions.” (Id.). Second, based on findings
by Dr. Bornstein and a consultant’s assessment, the ALJ found
that

in

“social

functioning,

the

claimant

has

moderate

difficulties.” (Id.). Third, in reliance on Dr. Bornstein, and
the

state’s

assessment,

the

ALJ

found

that

with

“regard

to

concentration, persistence or pace, the claimant has moderate
difficulties.”

(Id.

at

15-16).

Last,

as

reported

by

Dr.

Bornstein, the ALJ found that “the claimant has experienced no
episodes

of

decompensation,

which

have

been

of

extended

duration.” (Id. at 16). The ALJ also found that “paragraph C”
criteria were not present because “there [was] no indication
that the claimant ha[d] decompensated,” and she had “not been
hospitalized or otherwise treated for depression other than as
an outpatient and has not required a highly supportive living
environment.” (Id.).

At step four, the ALJ assessed Ms. McClinton’s RFC and
found that she could perform light work. (Id.). As for nonexertional

limitations,

he

concluded

that

Ms.

McClinton

was

maintaining social functioning; (3) marked difficulties in
maintaining concentration, persistence, or pace; and (4)
repeated episodes of decompensation, each of extended duration.
(Tr. 18). See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.00(C).
54

restricted to “performing simple and repetitive tasks in a job
that requires no more than occasional contact with the public”
because

of

a

depressive

disorder,

but

was

otherwise

unrestricted. (Id.).

In addressing the claimant’s back pain, the ALJ considered
Ms. McClinton’s allegations of pain and of restrictions in daily
life caused by the pain, and her case worker’s opinion that she
was significantly limited by the pain. (Id. at 16-17). However,
the ALJ concluded that “[d]espite the claimant’s allegations,
the

medical

evidence

demonstrate[d]

that

the

claimant

[was]

capable of doing light exertion irrespective of her back pain
and

obesity.”

(Id.

at

17).

Specifically,

“there

[were]

few

documented clinical signs in the treatment notes and what [was]
there [was] mostly negative,” and there were “no other legible
positive signs registered in the treatment entry.” (Id.).69

The

ALJ

identified

North

General

as

plaintiff’s

“chief

treating source,” but otherwise observed that “there are few
documented clinical signs in the treatment notes and what there
is is mostly negative.” (Tr. 17). He then recounted a negative
straight-leg raising test in June 2008, followed by a positive
69

The ALJ did not make further comments about how much of
the record was illegible and to what extent the illegible
records factored into his decision.
55

one -- “one of the few documented positive clinical signs” -- on
July 30, 2008. (Id.). He recognized that complaints of back pain
and difficulty walking, standing and bending were documented,
and that plaintiff received physical therapy and prescriptions
for pain medications. (Id.). He also noted conflicts in the
record -- a normal range of motion in March 2009, and a limited
range of motion in October 2008 and January 2009. (Id.). He
characterized her physical therapy as “brief stints.” (Id.). The
ALJ also recounted the results of a June 2008 MRI, indicating
that

it

flattening

showed
of

bulge

the

and

anterior

facet

degeneration,

thecal

sac

and

along

with

mild-to-moderate

narrowing of the lateral recesses. (Id. at 18).

The ALJ stated that Dr. Reid-Thornton, one of plaintiff’s
treating

physician

from

North

General,

had

found

that

the

claimant was “only temporarily and only partly ‘disabled’ and
that she could do sedentary work.” (Id. at 18). Additionally,
the ALJ observed that although Dr. Lee, the treating physician
from Columbus Center for Medical Rehabilitation, had found that
the claimant had physical restrictions, “no clinical signs were
referenced in the report,” other than a “dated” MRI. (Id.).

The ALJ recounted the findings of the January 2008 FEGS
medical team’s report, which noted “obesity, peripheral edema,
56

joint

swelling,

bilateral

knee

crepitations

and

a

bilateral

positive straight[-]leg raising.” (Tr. 19). The ALJ discounted
the significance of these findings by reasoning that plaintiff
was not taking medication, that she reported that the pain only
arose when walking long distances, and that “elsewhere in that
report, the claimant was found to have no physical findings on
examination except for some limited flexion and extension.” (Id.
at 19).70

The

ALJ

gave

consulting

examiner

opinion

support

significant

to

light

exertion,

other

clinical

examination

Dr.
a

Fernando.

finding

because

the

examinations

of

the

weight

that

to

He

found

plaintiff

claimant’s
were

claimant

the

Dr.

normal

of

Fernando’s

could

undertake

were

negative,

x-rays

negative,

was

assessment

and

the

except

doctor’s
for

mild

tenderness of the lumbar spine without paraspinal tenderness and
slight limitations in flexion and straight-leg raising. (Id.).

The

ALJ

cited

three

principal

reasons

supporting

his

determination that Ms. McClinton could do light work. (Tr. 20).
First,

“the

positive

record

clinical

fail[ed]

to

document

signs.”

(Id.).

70

much

Second,

in
the

the

way

of

claimant’s

As noted in section II.C.1, supra, the FEGS team seems to
have evaluated plaintiff and not served as a treating care
provider.
57

“treatment [had] been sporadic at best; she [had] never been
emergently

treated

for

back

pain

and

[had]

never

required

surgery.” (Id.). Third, other than a “dated MRI” from 2008, Dr.
Lee’s

opinion

signs.”

did

(Id.).

“considerably

not

By

more

reference

contrast,
realistic

any

Dr.
in

“clinical
Fernando’s

light

of

the

or

objective

opinion

was

record,”

and

accordingly the ALJ decided to “accord his opinion significant
weight.” (Id.).

As for plaintiff’s obesity, the ALJ found that it “actually
has had little to no impact.” (Tr. 16-17) In explanation, he
stated that she “was not diagnosed with morbid obesity,”71 she
“was independent in her activities of daily living,” she was
advised

to

increase

her

physical

activity,

there

was

no

indication that her obesity had an effect on her mental status,
and she had recently lost a significant amount of weight. (Id.).

The ALJ also concluded that the claimant’s fibroid uterus,
pelvic pain, and abscess would not have “any adverse effect on
her physical ability to work” or “impact [her] ability to do
light

exertion”

because

nothing

in

the

record

suggested

otherwise. (Id. at 19).
71

Morbid obesity refers to a condition where one is 200%
greater than ideal weight or more than 100 pounds over ideal
weight. 7 Attorneys Medical Advisor § 64:20
58

In addressing the claimant’s mental impairments, the ALJ
concluded

that

“the

claimant’s

depression

[had]

been

consistently stable and her mental status examinations normal
once treatment was underway.” (Tr. 20). In this regard, he noted
the treating physician’s report indicating “an ability to do
simple and routine tasks in a job that involves no more than the
occasional contact with the public,” a report “compatible with
the above mental residual functional capacity.” (Id. at 20-21).
The ALJ also cited the report of Dr. Carr as noting a GAF
consistent with “no more than moderate psychiatric limitations.”
(Id. at 21).

The ALJ declined to accord the June 2008 report of Dr.
Kobeissi,

one

of

plaintiff’s

treating

psychiatrist

at

North

General Hospital, much weight because “[i]t is difficult, if not
impossible, to reconcile this report with the contemporaneous
treatment records, most of which indicated that the claimant’s
mental

status

had

stabilized

and

that

her

mental

status

examinations were normal.” (Id. at 23). However, he gave Dr.
Kobeissi’s October 2011 report “significant weight” because it
was “well supported by the contemporaneous treatment records.”
(Id.

at

21).

The

2011

report

stated

that

Ms.

McClinton

was

slightly or moderately restricted in various mental functions,
and, according to the ALJ, “an individual with a ‘moderate’
59

restriction is still able to function satisfactorily.” (Id. at
21).

According

to

the

ALJ,

Ms.

McClinton’s

mental

health

improved with treatment and demonstrated periods of stability.
(Id.

at

21-22).

The

ALJ

concluded

that

“there

is

every

indication in the record that the claimant continued to progress
despite her lapses of compliance with therapy and medication,”
as reflected in self-reports and clinical notes in the record
ranging from March to September 2009. (Id. at 22).

In addressing the report of Dr. Bornstein, a consultative
psychologist,

the

ALJ

determined

that

“the

only

positive

clinical signs” in the report were “a dysphoric affect and a
dysthymic
cognitive

mood

and

a

functioning

low
and

average
a

to

limited

borderline
general

range

of

fund

of

information.” (Id.). As for the FEGS report, he described it as
indicating, with respect to Ms. McClinton’s ability to conduct
daily activities, “only moderate restrictions” for some mental
capacities, strengths in other mental capacities, and a PHQ-9
score “representing only mild symptoms.” (Id. at 22-23). The ALJ
appears to have relied on the FEGS team’s evaluation of the
degree of accommodation needed for plaintiff’s mental condition,
because he cited it inter alia as a reason why he did not credit
60

Dr. Kobeissi’s 2008 report. (Id. at 22-23)(explaining in the
paragraph directly following his summary of the FEGA report that
“[i]n light of the above reports, I decline to accord the June
2008

report

of

Dr.

Kobeissi,

M.D.,

the

claimants

treating

psychiatrist at North General Hospital, much weight.”). The ALJ
found that “the claimant would be able to do simple, repetitive
tasks in a job that requires no more than occasional contact
with the public.” (Tr. 23).

At step five of his decision, the ALJ ruled that “there are
jobs that exist in significant numbers in the national economy
that the claimant can perform.” (Tr. 24). In so finding, he
recognized

that

plaintiff

was

“unable

to

perform

any

past

relevant work,” but deemed her a younger individual under the
regulations72

who

had

“a

limited

education,”

was

“able

to

communicate in English,” and had unskilled past relevant work.
(Id. at 23).

The

ALJ

accepted

the

vocational

expert’s

opinion

in

response to the ALJ’s Sedentary Hypothetical posed on November
7,

2011

(see

information

in

Tr.

341-45),

the

DOT.

(Id.

finding
at

72

it

24).

In

consistent
accepting

with
the

the
VE’s

Ms. McClinton was born on April 23, 1967 and falls in the
younger-individual category, encompassing ages 18-49. See 20
C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00((h)(1).
61

response to the Sedentary Hypothetical, the ALJ affirmed that
this hypothetical incorporated plaintiff’s mental RFC. (Id.). At
the same time, he gave no weight to the VE’s response to the
Light Hypothetical, because it incorporated an accommodation to
sit and stand at will, which was not part of the final RFC
finding. (Id.).

Based on the VE’s response to the Sedentary Hypothetical,
the ALJ concluded that Ms. McClinton is not disabled under the
framework of section 202.17 of the Grid rules, requiring the
capacity for light work, and “is capable of making a successful
adjustment to other work that exists in significant numbers in
the national economy.” (Id. at 24).

V.

This Case
On

December

16,

2013,

Ms.

McClinton

filed

the

present

action seeking review of the SSA’s decision. She argued that the
Commissioner’s
substantial

denial

evidence

of

SSI

and

was

benefits
wrongly

was

determined.

have cross-moved for judgment on the pleadings.

62

not

supported
The

by

parties

ANALYSIS

VI.

The Parties’ Motions
A. Plaintiff’s Arguments
In plaintiff’s motion for judgment on the pleadings, she

asserts

seven

distinct

grounds

on

which

to

reverse

the

Commissioner’s determination that she was not disabled:

1) The ALJ failed to comply with the terms of the March
30, 2011 remand order from the Appeals Council to
consult with a vocational expert. (Pl. Mem. at 9).
2) The ALJ improperly rejected the claimant’s claim of
physical impairments caused by her hernia and pelvic
conditions. (Id. at 10).
3) The ALJ wrongfully minimized the claimant’s mental
impairments. (Id.).
4) The ALJ did not consider the pain suffered
described by the claimant in making his
determination. (Id.).

and
RFC

5) The ALJ erroneously concluded that there were jobs
in the national economy that the claimant could
perform. (Id.).
6) The
ALJ
improperly
evaluated
the
claimant’s
credibility when he ignored the evidence that
supported plaintiff’s account and instead relied on
minor
technical
distinctions
to
support
his
position. (Id.).
7) The ALJ incorrectly claimed that the “record
contains no opinions from treating sources.” (Id.).73

73

The ALJ recognized that the evidence included treating
sources. (See, e.g., Tr. 18, 21, 23).
63

B. Defendant’s Arguments
Defendant asserts that substantial evidence supports each
of the ALJ’s findings. (Def. Mem. at 17, 22, 24). Her reply
brief

specifically

rejects

plaintiff’s

claims

that

the

ALJ

ignored evidence of her physical and mental impairments. (Def.
Reply 2-3). Moreover, defendant asserts that the ALJ properly
evaluated plaintiff’s credibility and adhered to the regulations
in his consideration of the evidence provided by the vocational
expert. (Id. at 3-4).

VII.

Standard of Review
When

a

plaintiff

challenges

the

Social

Security

Administration’s denial of disability benefits, a court may set
aside the Commissioner’s decision only if it is not supported by
substantial

evidence

or

was

based

on

legal

error.

Shaw

v.

Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citing 42 U.S.C. §
405(g);

Balsamo

v.

Chater,

142

F.3d

75,

79

(2d

Cir.

1998)

(citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
(per curiam))); see 42 U.S.C. § 405(g) (stating that “[t]he
findings of the Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be conclusive”).

“Substantial evidence” is “‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept
64

as adequate to support a conclusion.’” Richardson v. Perales,
402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)); see also Matthews v. Leavitt, 452
F.3d 145, 152 n.9 (2d Cir. 2006); Halloran v. Barnhart, 362 F.3d
28, 31 (2d Cir. 2004). The substantial-evidence test applies not
only

to

the

Commissioner’s

factual

findings,

but

also

to

inferences drawn from the facts. E.g., Carballo ex rel. Cortes
v.

Apfel,

34

determining
Commissioner’s

F.

Supp.

whether

2d

208,

substantial

decision,

a

reviewing

214

(S.D.N.Y.

evidence
court

must

1999).

supports
consider

In
the
the

whole record, examining the evidence from both sides. See, e.g.,
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur
v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam));
Williams ex rel. Williams, 859 F.2d at 258.

The Commissioner, not the court, must resolve evidentiary
conflicts and appraise the credibility of witnesses, including
the claimant. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.
2002); Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.
1998); Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638,
642 (2d Cir. 1983). While the ALJ need not “reconcile every
conflicting shred” of evidence, Miles v. Harris, 645 F.2d 122,
124 (2d Cir. 1981), “the crucial factors in any determination
must

be

set

forth

with

sufficient
65

specificity

to

enable

[a

reviewing
supported

court]
by

to

decide

substantial

whether

evidence.”

the

determination

Ferraris

v.

Heckler,

is
728

F.2d 582, 587 (2d Cir. 1984); cf. Snell v. Apfel, 177 F.3d 128,
134 (2d Cir. 1999) (explaining the importance of the reasongiving requirement and holding that plaintiff was entitled to an
explanation

of

why

the

Commissioner

discredited

her

treating

physician’s disability opinion).

In addition to the consideration of the evidence in the
record, a reviewing court must consider the ALJ’s application of
the law to the record before him. Correale-Englehart v. Astrue,
687 F. Supp. 2d 396, 422 (S.D.N.Y. 2010). The court “reviews de
novo

whether

the

correct

legal

principles

were

applied

and

whether the legal conclusions made by the [SSA] were based on
those principles.” Thomas v. Astrue, 674 F. Supp. 2d 507, 520
(S.D.N.Y. 2009).

Since

disability-benefits

proceedings

are

non-adversarial

in nature, the ALJ has an affirmative obligation to develop a
complete

administrative

record,

even

when

the

claimant

is

represented by counsel. See Lamay v. Comm’r of Soc. Sec., 562
F.3d 503, 508-09 (2d Cir. 2009); Casino-Ortiz v. Astrue, 2007 WL
2745704, *7 (S.D.N.Y. Sept. 21, 2007) (citing Perez v. Chater,
77 F.3d 41, 47 (2d Cir. 1996)). To this end, the ALJ must make
66

“every
reports

reasonable
from

Ultimately,

effort”
medical

her

to

sources.

“[t]he

record

as

help

a

an

applicant

20

whole

C.F.R.
must

get

§

be

medical

416.912(d).
complete

and

detailed enough to allow the ALJ to determine the claimant’s
residual functional capacity.” Casino-Ortiz, 2007 WL 2745704 at
*7

(citing

20

inconsistencies,
regulations

lay

C.F.R.

§

416.913(e)(1)-(3)).

ambiguities,
out

several

or

gaps

options

for

in

When
the

the

ALJ

there

are

record,

the

to

collect

evidence to resolve these issues, including re-contacting the
treating physician, requesting additional records, arranging for
a consultative examination, or seeking information from others.
20

C.F.R.

§

416.920b.74

The

animating

principle

behind

the

Commissioner’s burden to clarify inconsistencies and ambiguities
in the record by seeking additional evidence is “that a hearing

74

On March 26, 2012, the Commissioner eliminated the former
regulations at 20 C.F.R. §§ 404.1512(e), 416.912(e), thereby
removing the mandate on an ALJ to first contact the treating
source to resolve conflicts and ambiguities in the record. How
We Collect and Consider Evidence of Disability, 77 Fed. Reg.
10,651 (Feb. 23, 2012)(explaining the new regulations). The new
regulation, 20 C.F.R. §§ 404.1520b, 416.920b, “significantly
reduce[s],” but does not completely abandon, the need to recontact a treating source and instead provides an ALJ with
several options -- among them contacting the treating source -to clarify portions of the evidence that are inconsistent or
insufficient to allow for a disability determination. Id. See
also Gabrielsen v. Colvin, 2015 WL 4597548, *6 (S.D.N.Y. July.
30, 2015)(discussing the implication of the new regulation on
the Commissioner’s burden to re-contact the treating source).
Since the ALJ’s decision was issued after the new regulation
went into effect, we apply that regulation to our analysis.
67

on disability benefits is a non-adversarial proceeding.” Vazquez
v. Comm’r of Soc. Sec., 2015 WL 4562978, *17 n.32 (S.D.N.Y. July
21, 2015)(citing Ureña–Perez v. Astrue, 2009 WL 1726217, *29
(S.D.N.Y. June 18, 2009); Perez, 77 F.3d at 47).

The

ALJ

must

also

adequately

explain

his

reasoning

in

making the findings on which his ultimate decision rests, and in
doing so he must address all pertinent evidence. See, e.g., Diaz
v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995); Ferraris, 728 F.2d
at 586-87; see also Allen ex rel. Allen v. Barnhart, 2006 WL
2255113,

*10

(S.D.N.Y.

Aug.

4,

2006)

(finding

that

the

ALJ

explained his findings with “sufficient specificity” and cited
specific reasons for his decision). “‘It is self-evident that a
determination by the [ALJ] must contain a sufficient explanation
of [his] reasoning to permit the reviewing court to judge the
adequacy of [his] conclusions.’” Pacheco v. Barnhart, 2004 WL
1345030,

*4

(E.D.N.Y.

June

14,

2004)

(quoting

Rivera

v.

Sullivan, 771 F. Supp. 1339, 1354 (S.D.N.Y. 1991)). An ALJ’s
“‘failure to acknowledge relevant evidence or to explain its
implicit rejection is plain error.’” Kuleszo v. Barnhart, 232 F.
Supp. 2d 44, 57 (W.D.N.Y. 2002) (quoting Pagan v. Chater, 923 F.
Supp. 547, 556 (S.D.N.Y. 1996)).

68

The

Act

expressly

authorizes

a

court,

when

reviewing

decisions of the SSA, to order further proceedings: “The court
shall have power to enter, upon the pleadings and transcript of
the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” 42 U.S.C. § 405(g); Butts,
388

F.3d

at

382.

If

“‘there

are

gaps

in

the

administrative

record or the ALJ has applied an improper legal standard,’” the
court

will

remand

the

case

for

further

development

of

the

evidence or for more specific findings. Rosa, 168 F.3d at 82-83
(quoting
Remand

Pratts

is

v.

Chater,

particularly

94

F.3d

appropriate

34,
where

39

(2d

Cir.

further

1996)).

findings

or

explanation will clarify the rationale for the ALJ’s decision.
Pratts,

94

F.3d

at

39.

If,

however,

the

reviewing

court

concludes that an ALJ’s determination to deny benefits was not
supported

by

substantial

evidence,

a

remand

solely

for

calculation of benefits may be appropriate. See, e.g., Butts,
388 F.3d at 386 (discussing Curry v. Apfel, 209 F.3d 117 (2d
Cir. 2000)).

VIII.

Assessment of the Record
We assess the record and conclude that the ALJ’s decision

suffers

from

a

number

of

defects

69

that

justify

a

remand

for

further development of the record and for findings supported by
substantial evidence.

A. The ALJ Failed to Acquire Complete Evidence.
The ALJ bears the burden of ensuring that the record as a
whole

is

“complete

and

detailed

enough”

to

support

his

determinations. 20 C.F.R. § 416.913(e)(1)-(3). This requires him
to resolve inconsistencies and ambiguities in the record. Id. §
416.920b. Indeed, an ALJ commits legal error when he rejects a
medical assessment without having first sought to develop fully
the

factual

C.F.R.

§

record.

See

Selian,

708

404.1520b(c)(1))(holding

F.3d
that

at
in

421

(citing

20

face

of

the

“remarkably vague” evidence from the treating physician, “[a]t a
minimum,

the

ALJ

likely

should

have

contacted

[the

treating

physician] and sought clarification of his report.”). See also
Rosa, 168 F.3d at 80. The ALJ may even be required to develop
the claimant’s medical history for a period longer than the
twelve-month period prior to the date on which the claimant
filed if there is reason to believe that such information is
necessary to reach a decision. 42 U.S.C. § 423(d)(5)(B); 20
C.F.R. § 416.912(d). See Hilsdorf v. Comm'r of Soc. Sec., 724 F.
Supp. 2d 330, 343 (E.D.N.Y. 2010); see also Pino v. Astrue, 2010
WL 5904110, *18 (S.D.N.Y. Feb. 8, 2010).

70

When the evidence in a claimant’s record is inadequate for
the SSA to make a determination, the ALJ “will determine the
best way to resolve the inconsistency or insufficiency,” and the
actions taken “will depend on the nature of the inconsistency or
insufficiency.”
regulation,

20

C.F.R.

courts

in

§

this

416.920b(c).

Circuit

have

In

applying

held

that

this

when

the

information needed pertains to the treating physician’s opinion,
the

ALJ

should

reach

out

to

that

treating

source

for

clarification and additional evidence. Selian, 708 F.3d at 421;
Gabrielsen, 2015 WL 4597548 at *6 (holding “that, in some cases,
the nature of the record may render re-contacting the treating
physician the best, if not the only, way to address gaps or
inconsistencies in the record, such that it is incumbent upon
the ALJ to do so.”); Reynoso v. Colvin, 2015 WL 1378902, *13
(S.D.N.Y.

Mar.

26,

2015)(citing

Jimenez

v.

Astrue,

2013

WL

4400533, *11 (S.D.N.Y. Aug. 14, 2013); Cancel v. Colvin, 2015 WL
865479, *4 (S.D.N.Y. Mar. 2, 2015)).

When records produced are illegible but relevant to the
plaintiff’s

claim,

supplementation
(holding

that

and
remand

a

remand

is

clarification.
was

warranted
Pratts,

appropriate

where

94
the

to
F.3d

obtain
at

record

38
was

missing evidence, and a significant portion of the available
evidence was illegible); Cutler v. Weinberger, 516 F.2d 1282,
71

1285 (2d Cir. 1975)(“Where the medical records are crucial to
the

plaintiff's

claim,

illegibility

of

important

evidentiary

material has been held to warrant a remand for clarification and
supplementation.”); Chamberlain v. Leavitt, 2009 WL 385401, *8-9
(N.D.N.Y. Feb. 10, 2009)(holding that “sporadic, brief and in
some instances, illegible” treatment records justified remand
“to fully and fairly develop the record”)(citing Cutler, 516
F.2d at 1285). But see Kruppenbacher v. Astrue, 2011 WL 519439,
*6 (S.D.N.Y. Feb. 14, 2011)(holding that remand was unnecessary
where the illegible record was not material to the claims).

1. North General, its Successor
Specifically Named Doctors

Institution,

and

The ALJ failed to mention in his decision two doctors who
Ms.

McClinton

testified

were

treating

her

in

2011,

Dr.

Wizenberg, a doctor to whom Ms. McClinton referred as her “oneon-one

psychiatrist”

identified

as

the

and

Dr.

treating

Dimitri

Alvarez,

physician

who

whom

she

prescribed

her

medications. (Tr. 74-75, 84-85; see also section II.A.2, supra).
From

the

context

of

the

record

it

is

clear

that

these

two

doctors were part of her care team at North General and/or its
successor institution, the Institute for Family Health at North
General.
General

(See
was

sections

II.B.1.a

indubitably

Ms.

&

II.B.2,

McClinton’s

72

supra).
principal

And

North

treating

source -- the ALJ even referred to North General in his decision
as “the claimant’s chief treating source.” (Tr. 17; sections
II.A.2, II.B.1 & II.B.2, supra).

Ms. McClinton testified that Dr. Wizenberg had treated her
for

the

two

months

preceding

her

September

2011

hearings;

therefore, this doctor’s notes should have been subpoenaed to
acquire

a

more

history,

and

impairments
reasons,

complete
his

should

given

record

opinion
have

Ms.

obtained.

testimony

at

McClinton’s

medical

plaintiff’s

regarding

been

plaintiff’s

of

mental

(Id.).
the

For

similar

same

hearing

regarding Dr. Alvarez, the ALJ also should have sought out his
treatment notes and opinion. Dr. Alvarez signed an order for
pain management referral on September 20, 2011 (Id. at 758),
which further highlights the need to have developed the record
regarding his treatment of plaintiff.

To satisfy his requirement to make reasonable efforts to
ensure that a claimant’s medical record is complete, an ALJ may
issue
advise

a

subpoena,

the

claimant

enforce

a

subpoena

that

she

should

previously
seek

issued,

compliance

from

or
a

physician with a request for records because it is important to
her case that the evidence be complete. See, e.g., Almonte v.
Apfel, 1998 WL 150996, *7 (S.D.N.Y. 1998); see also Cruz v.
73

Sullivan, 912 F.2d 8, 12 (2d Cir. 1990) (remanding because ALJ
did not advise pro se plaintiff that he could obtain a more
detailed

statement

from

his

treating

physician);

Carroll

v.

Sec'y of Dep't of Health & Human Servs., 872 F. Supp. 1200,
1204-05 (E.D.N.Y. 1995) (remanding where ALJ issued a subpoena
to

plaintiff’s

subpoena

or

treating

inform

physicians,

plaintiff

that

but

she

failed

could

to

enforce

obtain

records

independently or call physician to testify). When the ALJ issues
a subpoena on his own initiative -- as he must do when “it is
reasonably necessary for the full presentation of a claim” -the regulations place the burden on him to ascertain the correct
address. 20 C.F.R. § 405.332(a).75

In the record is a subpoena dated September 29, 2011 from
ALJ

Heyman

seeking

plaintiff’s

medical

records

from

“North

Central Bronx Hospital” on Kossuth Avenue in Bronx, New York.
(Tr. 247-49). This document plainly fails to satisfy the ALJ’s
burden to make reasonable efforts, as neither the name of the
institution nor the address are correct. (See, e.g., id. at
754)(letter on North General Hospital letterhead showing address

75

By contrast, when a subpoena issues at the claimant’s
request, it is the claimant who has an affirmative duty to file
a request that describes “the address or location of the witness
or documents with sufficient detail [for the ALJ] to find them.”
20 C.F.R. § 405.332(b)(2).
74

as

1879

Madison

Avenue,

New

York,

New

York).

ALJ

Heyman

therefore erred with regard to the regulation that places the
burden on him to ascertain the correct address when he issues
the

subpoena

although

on

the

his

ALJ

own

has

initiative.

some

It

discretion

bears

emphasis

whether

to

that

issue

a

subpoena, see, e.g., Serrano v. Barnhart, 2005 WL 3018256, *4
(S.D.N.Y.

Nov.

10,

evidence

would

be

2005)(subpoena
duplicative

of

declined
evidence

because
already

proposed
in

the

record), he cannot ignore essential available medical evidence.
This is especially the case here, where there is no medical
evidence to document treatments that plaintiff is known to have
received after September 2011 and before the ALJ’s decision was
issued in July of 2012, and scant evidence of treatment between
late 2009 and September 2011. See p. 13, supra.

In addition to the ALJ’s failure to properly issue and
enforce the subpoena to North General Hospital, he also failed
to

fully

develop

the

record

by

seeking

explanation

for

the

substantial illegible portions of North General records, rather
than

merely

concluding

that

there

were

“no

other

legible

positive signs registered in the treatment entry.” (Tr. 17).

Considering

that

North

General

and

its

successor

institution provided the vast majority of plaintiff’s medical
75

and psychiatric treatment, evidence provided by this treating
source

is

Therefore,

mostly
remand

likely
is

material

necessary

to

to
seek

plaintiff’s

claims.

clarification

of

the

illegible portions, the portions for the relevant period not
present in the record -- between late 2009 and 2012 -- and, if
necessary, available substitutes. Pratts, 94 F.3d at 38; Cutler
v. Weinberger, 516 F.2d at 1285 (2d Cir. 1975). The hearing
transcripts from September 2011 and June 2012 might be read to
show that the ALJ requested updates to the medical record from
the plaintiff; in both cases, however, the transcript yields
only two disjointed exchanges between plaintiff’s counsel and
the

ALJ

at

the

conclusion

of

the

hearings,

and

the

details

regarding what, if anything, was requested are unclear. (Tr. 4445, 98-99).

Once the evidence from North General is developed fully,
the

Commissioner

should

reconsider

plaintiff’s

medical

and

psychological impairments in light of the complete record.

2. Dr. Winston Lee
The

record

contains

a

brief

letter

from

Dr.

Lee

dated

September 12, 2011, stating that he treated plaintiff from July
18, 2011 to at least September 12, 2011 (Tr. at 757)(“I am
currently caring from Charlene McClinton. . . .”), and a report
76

that he completed for the SSA on her ability to do work-related
activities. (Id. at 760-62). Plaintiff confirmed that she was
under Dr. Lee’s care for physical therapy when she testified at
the September 22, 2011 hearing that she had been visiting Dr.
Lee twice a week for the past eight weeks. (Id. at 78, 88).
Additionally, Dr. Alvarez’s September 20, 2011 referral for pain
management
Lee’s

also

indicates

institution

service.

(Id.

at

--

that

would

758).

“Columbus”

be

the

is

a

This

--

care

presumably

provider

further

for

indication

Dr.
that

of

the

treatment relationship.

We note that on December 16, 2011, ALJ Heyman apparently
subpoenaed
Medical

all

medical

Rehabilitation

records
(Tr.

from

the

250-51);

Columbus

however,

Center

there

for

are

no

documents in the record that were responsive to that subpoena
and no indication that the ALJ sought to enforce it.76

Dr.

Lee’s

opinion,

based

on

his

treatment

and

“an

MRI

performed several years earlier,” was that Ms. McClinton had
exertional restrictions consistent with sedentary levels. (Id.
at 760-61). A barely legible note in Dr. Lee’s Medical Source
Statement to the SSA dated September 26, 2011 seems to indicate
76

The fax date stamp for the records from Dr. Lee shows
that that material was sent on September 22, 2011, well before
the subpoena seeking full records. (Tr. 762).
77

that the results of an MRI had been ordered and that Dr. Lee was
awaiting that result. (Id. at 761).

The ALJ “decline[d] to accord much weight to Dr. Lee’s
opinion” because the only objective or clinical sign on which it
was bases was an MRI -- presumed by the ALJ to have been taken
in 2008 -- and because it was inconsistent with most of the
other

evidence,

from

2008.

and

(Tr.

in

20).

particular,
However,

we

Dr.

Fernando’s

note

that

evaluation

Dr.

Lee

is

plaintiff’s most recent treating physician with evidence in the
record, and a review of his full treatment notes, rather than
the

cursory

letter

and

summary

findings

report

might

reveal

recent and material objective evidence of plaintiff’s physical
impairments. Additionally, Ms. McClinton testified in September
2011 that she had an MRI taken “last year.” (Id. at 89). It is
at least conceivable that Dr. Lee was relying on a much more
recent

MRI

than

the

ALJ

had

assumed.

Moreover,

Dr.

Lee’s

evidence is consistent with Ms. McClinton’s testimony at her
September 2011 hearing. (See, e.g. id. at 81-82, 90-91)(stating
that she was unable to ride public transportation, that her pain
was far greater despite her recent weight loss, and that she was
too limited by her physical condition and her pain to care for
her

child).

That

plaintiff’s

back

pain

may

have

worsened

considerably in 2011 is also supported by her case worker’s
78

observations between September 2011 and June 2012 that plaintiff
experienced consistent pain that severely limited her mobility.
(See discussion section II.E, supra).

Under

20

C.F.R.

§

416.920b(b)

the

ALJ

may

resolve

inconsistencies in the record by weighing the relevant evidence
to make a determination. But if the determination cannot be made
with the evidence at hand, the ALJ must utilize one of the
methods dictated by the regulations to resolve the matter. Id.
at § 416.920b(c). Here, the inconsistency is between evidence
from 2011 suggesting worsened symptoms and the medical records
primarily

from

2008

and

2009.

In

such

a

situation,

the

ALJ

should have developed the factual record in accordance with 20
C.F.R. § 416.920b(c) to resolve the tension between the evidence
from 2011 and the records from the earlier period. See Selian,
708 F.3d at 421. Thus, the Commissioner must develop the record
regarding

Dr.

Lee’s

treatment,

evidence

that

would

resolve

evidence

of

Ms.

McClinton’s

and

any

obtain

any

inconsistency

symptoms

in

2011

comparable
between

and

the

the
more

voluminous evidence from the preceding years.

B. The Treating Physician Rule May Need to Be Reapplied
The
special

treating-physician
deference

to

the

rule

“requires

opinions
79

of

a

an

ALJ

plaintiff’s

to

grant

treating

physician.” Acosta v. Barnhart, 2003 WL 1877228, *10 (S.D.N.Y.
Apr. 10, 2003). See also Kamerling v. Massanari, 295 F.3d 206,
209 n.5 (2d Cir. 2002); Clark, 143 F.3d at 118; 20 C.F.R. §
416.927(d)(2).

The

regulations

define

a

“treating

source”

as

“your own physician, psychologist, or other acceptable medical
source

who

provides

you,

or

has

provided

you,

with

medical

treatment or evaluation, and who has, or has had, an ongoing
treatment

relationship

with

you.”

20

C.F.R.

§

416.902.

The

Commissioner “may consider an acceptable medical source who has
treated or evaluated you only a few times or only after long
intervals (e.g., twice a year) to be your treating source if the
nature and frequency of the treatment or evaluation is typical
for your condition(s).” Id.

SSA regulations require that the findings of a plaintiff's
treating

physician

treating

be

physician's

afforded

opinion

controlling

“is

weight

well-supported

by

when

the

medically

acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case record.” 20 C.F.R. § 416.927(c)(2). Opinion evidence from
non-examining

sources

and

non-treating

physician

examiners

typically should not weigh more heavily than that of a treating
source. Selian, 708 F.3d at 419 (finding legal error where the
ALJ had relied on the opinion of a one-time examiner without
80

first

endeavoring

with”

an

“to

incomplete

reconcile
and

the

ambiguous

contradiction
record

from

or

the

grapple
treating

physician); Cruz, 912 F.2d at 13 (“[I]n evaluating a claimant's
disability, a consulting physician's opinions or report should
be given limited weight.”). The treating source’s opinion “is
not

afforded

controlling

weight

where

.

.

.

the

treating

physician issued opinions that are not consistent with other
substantial evidence in the record, such as the opinions of
other medical experts.” Halloran v. Barnhart, 362 F.3d 28, 32
(2d

Cir.

2004)(citing

Veino,

312

F.3d

at

588;

20

C.F.R.

§

416.927(d)(2). “[A]nd the report of a consultative physician may
constitute such evidence,” Marquez v. Colvin, 2013 WL 5568718,
*12 (S.D.N.Y. Oct. 9, 2013)(quoting Mongeur, 722 F.2d at 1039),
for

instance,

when

it

is

by

an

expert

with

particularized

knowledge. “However, not all expert opinions rise to the level
of evidence that is sufficiently substantial to undermine the
opinion of the treating physician.” Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008).

If the treating physician's opinion is inconsistent with
other substantial evidence in the record, the ALJ is required to
apply specific factors to determine the weight that he will give
that opinion. 20 C.F.R. § 416.927(c)(2). These factors include
the “length of the treatment relationship,” the “frequency of
81

examination[s],”

the

“nature

and

extent

of

the

treatment

relationship,” the degree to which the opinion is supported by
“medical signs and laboratory findings,” the consistency “with
the

record

as

a

whole,”

the

specialization

of

the

treating

source, and other factors that may be relevant in a given case.
20 C.F.R. § 416.927(c)(2)-(6). See also Halloran, 362 F.3d at
32.

The ALJ must articulate “good reasons” derived from these
factors for according less-than-controlling weight to a treating
source. Halloran, 362 F.3d at 32-33; Snell, 177 F.3d at 133; 20
C.F.R.

§

416.927(c)(2).

“Good

reasons”

refer

to

“the

overwhelmingly compelling type of critique that would permit the
Commissioner to overcome an otherwise valid medical opinion.”
Shaw, 221 F.3d at 135. It is not necessary for the ALJ recite
each factor in concluding that good reasons exist, Gabrielsen,
2015 WL 4597548 at *8 (finding that neither the regulations nor
the

Second

Circuit

articulates

an

“explicit-consideration

standard” with regard to the factors in the treating-physician
rule), but his decision must adequately explain his assessment
of the treating doctor’s findings.

82

1. Dr.
Winston
Reevaluated
As

discussed

in

Lee’s

section

Evidence

VIII.A.2,

May

supra,

Need

to

be

addressing

the

ALJ’s failure to resolve inconsistencies in the record, the ALJ
stated that he did not accord much weight to the findings of Dr.
Lee, plaintiff’s treating physician in 2011, and instead gave
“significant weight” to Dr. Fernando, a consulting doctor. (Tr.
20). According to the ALJ, Dr. Lee’s opinion did not reference
“clinical

or

objective

signs

that

would

support

such

a

restrictive capacity” -- other than a “dated MRI” -- while Dr.
Fernando’s opinion was “considerably more realistic in light of
the record.” (Id.).

Ms. McClinton was Dr. Lee’s patient from July 18, 2011 at
least

to

September

12,

2011,

and

he

stated

that

he

was

“currently caring for” Ms. McClinton at the Columbus Center for
Medical

Rehabilitation.

(Id.

at

757).

Additionally,

Ms.

McClinton testified at the September 22, 2011 hearing that she
had been visiting Dr. Lee twice a week for the past eight weeks.
(Id. at 78, 88). This attests to the treatment relationship
between Dr. Lee and plaintiff.

83

We observe that the ALJ extensively reviewed the legible
record77 in arriving at his conclusion that Dr. Lee’s opinion was
not

to

be

credited.

(Tr.

17-18).

In

particular,

he

gave

controlling weight to the corpus of legible evidence provided by
North

General,

which

documented

few

clinical

signs

of

back

impairments and related pain but was overall consistent with a
finding that Ms. McClinton was capable of light exertion. (Id.).
The ALJ clearly considered the physical therapy conducted in
late 2008 and early 2009, clinical exams from the summer of 2009
showing “no tenderness or focal deficits,” and the patient’s
reports

of

living,
household

being

including
chores,

able

to

riding
and

conduct

light

public

transportation,

babysitting.

(Id.

activities

at

17-19).

of

daily

conducting
The

FEGS

report from early 2008 is also consistent with the determination
that she could manage light exertion. (Id. at 19). And, as noted
above, the ALJ found Dr. Fernando’s assessment, supported by
contemporaneous x-rays and clinical tests, was consistent with
light exertion.

However, given the gaps and inconsistencies in the record - particularly with regard to the later time period, when Dr.

77

As already discussed in section VII.A.2, supra, the ALJ
erred in not seeking to clarify the substantial portions of the
North General record that were illegible.
84

Lee

was

treating

Ms.

McClinton

--

it

may

be

necessary

to

reconsider the weight of Dr. Lee’s opinion should efforts to
complete the record yield new and material evidence regarding
plaintiff’s physical condition and pain. After all, a consulting
opinion -- in this case, of Dr. Fernando -- should not receive
greater weight than a treating physician’s opinion unless that
determination is based on a fully developed record. Selian, 708
F.3d at 419.

2. The ALJ Did Not Err
Kobeissi’s Evidence
Although
physical

we

leave

impairments

open
may

the

in

his

Evaluation

possibility

warrant

a

that

of

Dr.

plaintiff’s

different

RFC

after

inconsistencies are resolved, we do not find that ALJ Heyman
erred with regard to plaintiff’s mental RFC. The ALJ “decline[d]
to accord the June 25, 2008 [Treating Physician’s Wellness Plan]
report

of

Dr.

Kobeissi,

M.D.,

the

claimant’s

treating

psychiatrist at North General Hospital, much weight,” because he
found that report “difficult, if not impossible, to reconcile”
with the remainder of the record. (Tr. 23). The ALJ supported
his decision with specific citations to the record regarding Ms.
McClinton’s contemporaneous mental health treatment. For one,
this documentation included records of monthly appointments with
Dr. Kobeissi, and second, it showed that her “mental status had

85

stabilized and that her mental status examinations were normal.”
(Id.)(citing multiple treatment records from 2008 and 2009).

The

ALJ’s

determination

that

Dr.

Kobeissi’s

June

2008

report should be disregarded was based on a treatment record
that included entries from four monthly patient visits with Dr.
Kobeissi between April and June 8, 2008 (id. at 509, 517, 563,
567), among no less than twenty treatment entries for individual
psychotherapy,

group

therapy,

and

psychiatry

visits

at

North

General between February and June 2008. (Id. at 492-520, 56372). With the exception of two visits -- a group therapy summary
from March 6, 2008 indicating that plaintiff had an “extreme
depressive episode” related to an attempt to return to work (id.
at 498) and a group therapy summary from June 6, 2008 noting
that her status was “fluctuating” (id. at 564) -- these reports
leading up to Dr. Kobeissi’s June 25, 2008 evaluation document
with consistency a stable mental status with no serious concerns
raised regarding her ability to adjust to life and manage her
depression

through

ongoing

treatment

and

medication.

The

ALJ

further noted that although the treatment records from July 7,
2008 through July 6, 2009 demonstrate more sporadic attendance
at individual and group-therapy appointments, they also document
consistently

a

stable

mental

status,

self-discipline,

and

a

capacity to adjust to stressful life situations. (Id. at 22,
86

566-618).

One

notable

exception

is

an

indication

of

“fluctuating” status on November 10, 2008, but plaintiff was
struggling with serious physical health issues at that time,
including surgery for a painful pelvic condition in late October
2008. (Id. at 580, 710-30).

Finally, in his October 4, 2011 medical source statement
submitted to the SSA, Dr. Kobeissi indicated that Ms. McClinton
would

experience

only

moderate,

slight

or

no

limitations

in

various functional capacities as a result of her psychological
symptoms. (Id. at 763-65). Her symptoms at the time included
visual

hallucinations

strangers,

as

well

and
as

social

withdrawal

difficulty

coping

when

with

confronting

environmental

pressures. (Id. at 764). Nonetheless, her treating psychiatrist
for several years by that point did not suggest that any of
these symptoms would preclude her entirely from a variety of
work demands. Moreover, Dr. Kobeissi’s 2008 note suggested that
Ms.

McClinton

would

need

six

months

to

a

year

of

treatment

before she would be capable of returning to work. There is no
indication in the voluminous mental health care records that Ms.
McClinton’s condition worsened or remained precarious enough a
year later to justify those earlier concerns.

87

In

light

of

the

significant

number

of

treatment

notes

provided by the North General mental health team and the general
consistency of those notes in portraying an individual who was
generally stable and capable of adjusting to daily life with
medicine

and

treatment,

we

find

that

the

ALJ

provided

good

reasons -- namely, a lack of consistency with the doctor’s own
treatment

notes

and

those

of

his

treatment

team

--

for

not

affording the 2008 opinion of Dr. Kobeissi controlling weight in
his determination of plaintiff’s mental RFC.

C. The ALJ Failed to Properly Evaluate
Credibility and Allegations of Pain.
The

SSA

regulations

require

the

ALJ

Plaintiff’s

to

assess

the

claimant’s credibility in a systematic way and to take seriously
the

claimant’s

report

of

subjective

symptoms.

20

C.F.R.

§

416.929. In doing so, the ALJ exercises discretion over the
weight

assigned

severity

of

to

her

a

plaintiff’s

pain

and

testimony

other

regarding

subjectively

the

perceived

conditions, and her resulting limitations. See, e.g., Aronis v.
Barnhart, 2003 WL 22953167, *7 (S.D.N.Y. Dec. 15, 2003) (citing
Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)); Snell, 177
F.3d

at

135.

substantial
decision

to

If

the

evidence
discount

.

ALJ’s
.

the

.

the

“‘findings
court

claimant's

88

must

are

supported

uphold

subjective

the

by

ALJ's

complaints

of

pain.’” Perez v. Barnhart, 234 F. Supp. 2d 336, 340-41 (S.D.N.Y.
2002)(quoting Aponte v. Secretary, Dept. of Health and Human
Services, 728 F.2d 588, 591 (2d Cir. 1984)). See also Marcus,
615 F.2d at 27 (citing Richardson, 402 U.S. 389, 401 (1971)).

In assessing the claimant’s testimony, the ALJ must take
all pertinent evidence into consideration. E.g., Perez, 234 F.
Supp. 2d at 340-41; Marcus, 615 F.2d at 27; Jordan v. Barnhart,
29 Fed. App’x 790, 794 (2d Cir. 2002). Even if a plaintiff’s
account of subjective pain is unaccompanied by positive clinical
findings

or

other

objective

medical

evidence,78

it

may

still

serve as the basis for establishing disability as long as the
impairment

has

a

Harris

R.R.

Ret.

v.

medically
Bd.,

ascertainable
948

F.2d

123,

source.

See,

e.g.,

128

Cir.

1991)

(2d

(discussing Gallagher v. Schweiker, 697 F.2d 82, 84-85 (2d Cir.
1983)). The ALJ must consider “all of the available evidence”
78

Objective medical evidence is “evidence obtained from the
application of medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1529(c)(2); see also
Casino-Ortiz, 2007 WL 2745704 at *11, n.21 (quoting 20 C.F.R. §
404.1529(c)(2)). Clinical diagnostic techniques include methods
showing “residual motion, muscle spasms, sensory deficit or
motor disruption.” 20 C.F.R. § 416.929(c)(2). See also 20 C.F.R.
§
416.928(b).
Laboratory
findings
“are
anatomical,
physiological, or psychological phenomena which can be shown by
the
use
of
medically
acceptable
laboratory
diagnostic
techniques. Some of these diagnostic techniques include chemical
tests,
electrophysiological
studies
(electrocardiogram,
electroencephalogram, etc.), roentgenological studies (X-rays),
and psychological tests.” 20 C.F.R. § 416.928(c).
89

concerning

a

plaintiff’s

complaints

of

pain

when

they

are

accompanied by “medical signs and laboratory findings . . .
which could reasonably be expected to produce the pain or other
symptoms alleged and which, when considered with all of the
other evidence . . . , would lead to a conclusion that you are
disabled.” 20 C.F.R. § 416.929(a).

The

ALJ

must

apply

a

two-step

process

to

evaluate

a

plaintiff’s subjective description of his or her impairment and
related symptoms. SSR 96-7p (summarizing framework). “First, the
adjudicator

must

consider

whether

there

is

an

underlying

medically determinable physical or mental impairment(s) -- i.e.,
an

impairment(s)

clinical

and

that

can

laboratory

be

shown

diagnostic

by

medically

techniques

--

acceptable
that

could

reasonably be expected to produce the individual's pain or other
symptoms.” Id. See also Martinez, 2009 WL 2168732 at *16; 20
C.F.R. § 416.929(c)(1).

Second, once an underlying physical or mental
impairment(s) that could reasonably be expected to
produce the individual's pain or other symptoms has
been shown, the adjudicator must evaluate the
intensity, persistence, and limiting effects of the
individual's symptoms to determine the extent to which
the symptoms limit the individual's ability to do
basic work activities. For this purpose, whenever the
individual's statements about the intensity,
persistence, or functionally limiting effects of pain
or other symptoms are not substantiated by objective
medical evidence, the adjudicator must make a finding
90

on the credibility of the individual's statements
based on a consideration of the entire case record.
This includes the medical signs and laboratory
findings, the individual's own statements about the
symptoms, any statements and other information
provided by treating or examining physicians or
psychologists and other persons about the symptoms and
how they affect the individual, and any other relevant
evidence in the case record.
Id. See also 20 C.F.R. § 416.929(c)(4); Meadors v. Astrue, 370
Fed. App’x 179, 183 (2d Cir. 2010).

It should be noted that “the second stage of [the] analysis
may

itself

101501,

involve

*14

two

(S.D.N.Y.

parts.”

Jan.

12,

Sanchez
2010).

v.

Astrue,

“First,

the

2010
ALJ

WL

must

decide whether objective evidence, on its own, substantiates the
extent of the alleged symptoms (as opposed to the question in
the

first

step

of

whether

objective

evidence

establishes

a

condition that could ‘reasonably be expected’ to produce such
symptoms).” Id. When a plaintiff reports symptoms more severe
than

medical

require

the

including
credibility

a

evidence

alone

would

suggest,

reviewing

ALJ

to

consider

specific

set

of

factors,

in

plaintiff’s

symptoms

and

of

a

SSA

regulations

additional

evidence,

determining
their

the

limiting

effects. SSR 96-7p. See also Sanchez, 2010 WL 101501 at *14; 20
C.F.R. § 416.929(c)(3). These seven factors are:

(1) The individual’s daily activities;
91

(2) The location, duration, frequency and intensity of
pain or other symptoms;
(3) Factors that precipitate and aggravate the
symptoms;
(4) The type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken to
alleviate pain or other symptoms;
(5) Treatment, other than medication, the individual
receives or has received for relief of pain or other
symptoms;
(6) Any measures other than treatment the individual
uses or has used to relieve pain or other symptoms
(e.g., lying flat on his or her back, standing for 15
to 20 minutes every hour, or sleeping on a board); and
(7) Any other factors concerning the individual’s
functional limitations and restrictions due to pain or
other symptoms.

SSR 96-7p; 20 C.F.R. § 416.929(c)(3). If the ALJ does not follow
these steps, remand is appropriate. See Sanchez, 2010 WL 101501
at *15.

“[P]laintiff’s
medical

evidence,

allegations
but

simply

need

not

consistent

be

substantiated

with

it.

The

by

entire

purpose of section [] 416.929 . . . is to provide a means for
claimants to offer proof that is not wholly demonstrable by
medical evidence.” Youney v. Barnhart, 280 F. Supp. 2d 52, 61
n.4

(W.D.N.Y.

2003)

subjective

and

functional

limitations

“Because

difficult
and

to

symptoms,

such

quantify,

any

restrictions

.

.

as

pain,

are

symptom-related
.,

which

can

reasonably be accepted as consistent with the objective medical

92

evidence and other evidence, will be taken into account. . . .”
20 C.F.R. § 416.929(c)(3).

Finally, “[o]nly allegations beyond what is substantiated
by

medical

analysis.

evidence
To

are

require

to

be

subjected

plaintiff

to

fully

to

a

credibility

substantiate

her

symptoms with medical evidence would be both in abrogation of
the

regulations

and

against

their

stated

purpose.”

Hogan

v.

Astrue, 491 F. Supp. 2d 347, 353 (W.D.N.Y. 2007)(citing cases).
“[I]f the ALJ decides to reject subjective testimony concerning
pain

and

other

symptoms,

he

must

do

so

explicitly

and

with

sufficient specificity to enable the Court to decide whether
there are legitimate reasons for the ALJ's disbelief and whether
his

determination

is

supported

by

substantial

evidence.”

Bushansky v. Comm'r of Soc. Sec., 2014 WL 4746092, *7 (S.D.N.Y.
Sept. 24, 2014)(quoting Brandon v. Bowen, 666 F. Supp. 604, 608
(S.D.N.Y. 1987)).

ALJ Heyman determined that the objective evidence alone did
not substantiate the extent of the plaintiff’s assertions of
pain symptoms. (Tr. 20). That finding triggered the need to
evaluate

Ms.

McClinton’s

credibility

in

response

to

her

allegations of pain, and to do so with specific reference to the

93

seven factors listed in section 416.929(c)(3). Sanchez, 2010 WL
101501 at *14.

However, the ALJ does not appear to have undertaken such a
credibility
credibility

assessment.
was

his

Indeed,

comment

that

his

only

reference

to

plaintiff’s

credibility

was

diminished by her having tested positive for cocaine in 2008,
despite having testified that she was clean of drugs since 2006.
(Tr. 21). While this may well be a relevant piece of evidence,
the ALJ did not place it, as required, in the context of all the
evidence in the record, which included years of treatment notes,
several sworn statements by the plaintiff, the testimony of a
case worker who observed plaintiff at home over eight months,
and

the

accounts

by

care

providers

of

plaintiff’s

contemporaneous reports of pain. Moreover, even in the ALJ’s
various findings that were clearly based on portions of the
medical records, he seemed to rely on plaintiff’s accounts of
symptoms to her treatment providers when she was feeling better
but implicitly rejected her accounts of symptoms when she was
feeling worse. (See, e.g., id. at 19-20 (rejecting her reports
of “severe back pain” to Dr. Fernando and the need for pain
management in 2011).

94

The ALJ made references related to each of the required
factors enumerated in 20 C.F.R. § 416.929(c), but apparently
dismissed

them

undergone

brief

on

three

grounds:

stints

of

first,

physical

that

therapy

plaintiff

“had

although

the

documented clinical signs were sparse” (Tr. 17); second, that
the FEGS team documented her reports of back pain only when
walking long distances and at a time when she was not taking
medication (id. at 19); and third, that plaintiff “has never
been emergently treated for back pain and she has never required
surgery.”

(Id.

at

20).

The

ALJ’s

apparent

reasoning

is

insufficient for several reasons. The first and third of these
apparent

justifications

do

not

satisfy

the

required

analysis

regarding credibility: they only address the correspondence of
objective medical evidence to allegations of pain, rather than
the credibility of those allegations of pain that transcend what
could be attributed to objective medical evidence. Additionally,
the FEGS team’s evaluation cannot be controlling in this regard
because it was not a treating source, its documentation was
prepared in January 2008, before her disability onset date, and
its report was prepared without access to plaintiff’s medical
records. (Id. at 406). Moreover, the ALJ recounted in detail
plaintiff’s own testimony regarding the limitations that pain
imposed on her daily life, the reports of treating physicians
documenting

the

consistency

of

her
95

complaints

regarding

the

severity of her pain, and the case worker’s testimony, which
also confirmed the disabling nature of her pain, but he did not
expressly indicate -- aside from the reference to past cocaine
use, which was cited explicitly in the context of her mental
impairments -- why he did not find this evidence credible. The
ALJ has not supported his rejection of plaintiff’s credibility
explicitly

and

with

the

specificity

necessary

for

us

to

determine whether his determination was supported by substantial
evidence. See Bushansky, 2014 WL 4746092 at *7.

On remand, once the Commissioner has assembled a complete
record and examined it in full, she should make an explicit
credibility

assessment

regarding

plaintiff’s

subjective

allegations of pain.

D. The Collective
Considered.

Impact

of

Multiple

Maladies

Must

Be

The ALJ is required to consider the combined effects of
multiple physical maladies and/or psychiatric conditions on the
plaintiff’s ability to work, regardless of the severity of any
of the individual conditions. 20 C.F.R. § 416.923; Dixon v.
Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995)(“[A]s this court has
long recognized, the combined effect of a claimant's impairments
must

be

considered

in

determining

96

disability;

the

SSA

must

evaluate their combined impact on a claimant's ability to work,
regardless of whether every impairment is severe.”)(citing De
Leon v. Secretary of Health & Human Servs., 734 F.2d 930, 937
(2d Cir. 1984); Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d
Cir. 1975)). Here the ALJ failed to do so explicitly.

The ALJ’s decision addressed plaintiff’s back ailment and
pains and found that they did not preclude her from light work.
He

then

included

separately
diagnoses

addressed
of

her

depression

psychiatric
and

status,

anxiety.

which

Although

he

minimized the seriousness of her psychiatric condition, he never
addressed

the

question

of

whether

plaintiff’s

reported

(and

presumptively credible) pain would aggravate her psychological
difficulties and equally failed to consider the extent (if any)
to which her psychiatric problems might aggravate the effect of
her back and other pain on her functional capacity for full-time
work.

On

remand,

determination

the

Commissioner

regarding

the

should

combined

make

impact

an

of

multiple maladies on her residual functional capacity.

97

explicit

plaintiff’s

E. The Vocational Evidence Should be Redeveloped.
An

ALJ

may

interrogatories

rely

provided

on
by

the
a

testimony
vocational

and

answers

expert

when

to
the

hypothetical to which the VE is responding accurately reflects
the claimants physical and mental RFC. Owusu v. Astrue, 2009 WL
2476535, *5 (S.D.N.Y. Aug. 13, 2009)(citing Dumas v. Schweiker,
712 F.2d 1545, 1553–54 (2d Cir. 1983)); Henry v. Astrue, 2008 WL
5330523,

*11

(S.D.N.Y.

Dec.

17,

2008).

When

a

hypothetical

question posed to a VE fails to be based upon accurate medical
evidence,

the

VE’s

responsive

opinion

cannot

constitute

substantial evidence in allowing the ALJ to determine what work
the claimant can perform. See Rivera v. Colvin, 2014 WL 3732317,
*40 (S.D.N.Y. July 28, 2014); Monge v. Astrue, 2014 WL 5025961,
*27 (S.D.N.Y. Sept. 29, 2014). And when a remand is already
necessary

to

properly

determine

the

plaintiff’s

RFC,

the

vocational-capacity finding must also be remanded when it was
based on the testimony of a VE answering a similarly flawed
hypothetical. See, e.g., Molina v. Colvin, 2014 WL 3445335, *19
n.21 (S.D.N.Y. July 15, 2014).

The occupational evidence provided by the vocational expert
“generally

should

be

consistent

with

the

occupational

information supplied by the [Dictionary of Occupational Titles
(‘DOT’), published by the Department of Labor].” SSR 00–4p. If
98

there is an “apparent unresolved conflict between [vocational
expert] evidence and the DOT, the [ALJ] must elicit a reasonable
explanation for the conflict before relying on the [vocational
expert] evidence to support a determination or decision about
whether the claimant is disabled.” Id.

In his decision, the ALJ found plaintiff to have the RFC to
perform light work79 with additional restrictions, reflective of
her mental RFC, to “performing simple and repetitive tasks in a
job

that

requires

no

more

than

occasional

contact

with

the

public.” (Tr. 16). However, in the vocational interrogatory, the
answer to which the ALJ applied in his decision, he defined
plaintiff’s RFC solely by the regulation 20 C.F.R. § 416.967(a),
which designates sedentary work,80 even though his hypothetical

79

Light work is defined by 20 CFR 404.1567(b) and
416.967(b). “Light work involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of these
activities. If someone can do light work, we determine that he
or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to
sit for long periods of time.” 20 C.F.R. § 404.1567.
80 20 CFR §§ 404.1567(a), 416.967(a) define sedentary work.
“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
99

stated “light/sedentary” -- a specification not found in the
regulations. (Id. at 343). Adding to this confusion, in response
to

this

hypothetical

directing

the

regulatory

exertional

capacity for sedentary work, the VE proposed DOT occupational
codes that required light work.81 (See discussion section II.D,
supra).

We need not address the possible confusion of the combined
evidence from the VE or the mismatch of the ALJ’s indication of
sedentary

exertion

with

the

VE’s

response

of

jobs

requiring

light exertion. Rather, we find that in light of the errors by
the ALJ, detailed supra, in arriving at plaintiff’s RFC, on
remand the Commissioner should reevaluate plaintiff’s vocational
capacity

after

substantial

she

evidence

has
in

determined
the

record

an
and

RFC

derived

informed

by

from
the

collective impact of plaintiff’s multiple maladies to reevaluate
plaintiff’s vocational capacity.

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. §
404.1567.
81 311.677-01, Cafeteria Attendant, features a Strength of
“L.” 1 Dictionary of Occupational Titles 241. 920.687-018,
Bagger, features a Strength of “L.” 2 Id. at 936. 323.687-014,
Cleaner/Housekeeper, features a Strength of “L.” Id. at 248.
100

F. Other Issues Raised by Plaintiff are Unavailing.
In

addition

to

the

issues

already

addressed

by

the

discussion in sections VIII.A-E, supra, plaintiff also claimed
in her motion papers that the ALJ erred in his evaluation of her
obesity and by not acknowledging the treating-source opinions in
the record. (Pl. Mem. 10). We find that these assertions are
unavailing.

First, obesity, defined by an individual’s Body Mass Index
(“BMI”),82

can

be

a

severe

impairment

on

its

own

or

in

combination with other impairments. SSR 02-1p. The definitional
section introducing per se impairments of the musculoskeletal
system requires an ALJ to evaluate the impact of plaintiff’s
obesity:

82

The National Institutes of Health’s Clinical Guidelines
establish that a BMI of 30.0-34.9 indicates Level I obesity,
while BMIs of 35.0-39.9 indicate Level II obesity. (NIH
Publication No. 98-4083, Sept. 1998, referenced in SSR 02-1p).
These levels do not correlate with a particular level of
functionality. SSR 02-1p.
Definitions of obesity vary: 1. Relative weight compared to
a standardized table based on height that exceeds 120% of the
ideal value in the table; 2. Calculation of a BMI of 27.5 or
greater. BMI is calculated by determining the weight in
kilograms and dividing it by the square of the height in meters
(kg/m2); and 3. The measure of an individual’s waist. “Morbid”
or severe obesity is defined as a relative weight over 200%, or
a BMI of over 40 kg/m2. Also, elderly patients may mildly exceed
calculated levels without being obese. 2 Attorneys Medical
Deskbook § 24:29.
101

The combined effects of obesity with musculoskeletal
impairments can be greater than the effects of each of
the impairments considered separately. Therefore, when
determining whether an individual with obesity has a
listing-level impairment or combination of
impairments, and when assessing a claim at other steps
of the sequential evaluation process, including when
assessing an individual's residual functional
capacity, adjudicators must consider any additional
and cumulative effects of obesity.

20 C.F.R. § 404 app. 1, 1.00Q.

Here, the ALJ specifically addressed the evidence regarding
plaintiff’s past diagnoses of obesity and its impact on her
physical

and

mental

RFCs,

and

came

to

the

well-supported

conclusion that her obesity “has had little to no impact.” (Tr.
18). He grounded this determination in evidence that she was
able to carry out her activities of daily living independently,
and

on

her

significant

September

weight

loss

2011
in

testimony

the

three

demonstrating

months

prior

to

her
that

hearing. (Id.). Unless, upon remand, the Commissioner finds new
and

material

evidence

that

plaintiff’s

obesity

affects

her

mental and physical capacities, we see no grounds to disturb the
ALJ’s findings in this regard.

Plaintiff’s final assertion -- that the ALJ did not find
treating-source opinions in the record -- is utterly baseless.
The ALJ deemed the voluminous records of medical, psychiatric
102

and

psychotherapeutic

treatment

at

North

General

to

be

the

evidence from her “chief treating source.” (Tr. 17). In so far
as the ALJ erred by not seeking clarification regarding the many
illegible

entries

in

the

North

General

record

(see

section

VIII.A.1, supra), we have already recommended remand to address
that matter.

CONCLUSION

The ALJ failed in several significant ways to fulfill his
obligation to evaluate the record and support his findings with
substantial

evidence.

Specifically,

he

failed

to

acquire

complete evidence regarding her treatment at North General and
with Dr. Lee. The ALJ incorrectly applied the treating-physician
rule with regard to Dr. Lee. He also failed to properly evaluate
Ms. McClinton’s credibility and allegations of pain, and the
combined

impact

impairments.

of

her

Finally,

non-severe

his

medical

determination

and

at

psychiatric

step

five

is

inherently flawed because of its reliance on an RFC derived from
these compounded errors.

Accordingly,

we

conclude

that

remand

is

necessary

to

determine whether, in accordance with SSA regulations and case
law,

plaintiff

qualifies

for

Supplemental

103

Security

Income

benefits. On remand, the Commissioner should develop the record
and then reconsider the issues discussed above in light of the
totality of the evidence.

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the
Federal

Rules

of

Civil

Procedure,

the

parties

shall

have

fourteen (14) days from this date to file written objections to
this Report and Recommendation. Such objections shall be filed
with the Clerk of the Court and served on all adversaries, with
extra copies to be delivered to the chambers of the Honorable
Colleen McMahon, Room 1640, 500 Pearl Street, New York, New
York, 10007, and to the chambers of the undersigned, Room 1670,
500 Pearl Street, New York, New York, 10007. Failure to file
timely objections may constitute a waiver of those objections
both in the District Court and on later appeal to the United
States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150
(1985); Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16
(2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a),
6(d).

104

DATED: New York, New York
September 2, 2015

RESPECTFULLY SUBMITTED,

________________________________
MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE

Copies of the foregoing Report and Recommendation have been
sent this date to:
Joanne Pengelly, Esq.
Social Security Administration, OGC
26 Federal Plaza, Room 3904
New York, NY 10278
Max D. Leifer, Esq.
214 Sullivan Street – Suite 3-C
New York, New York 10012

105