McClinton v. Commissioner of Social Security

Filing 24

MEMO ENDORSEMENT on 23 Report and Recommendations. ENDORSEMENT: I adopt Judge Dolinger's Report as my opinion. Case remanded. (Signed by Judge Colleen McMahon on 10/16/2015) (kgo)

1

~~~JJC SDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

'I•ELECTRONICALLY FILED.\

-----------------------------------x

I

YJOCUME·NT

I

I'

POC#:

Jo

oATEF!LED:

CHARLENE MCCLINTON,

j!

~

lab

:REPORT & :RECOMMENDATION

Plaintiff,

13cv8904 (CM) (MHD)

-againstCAROLYN 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,
U.S.C.

§

1614(a)(3)(A)

("the

Act"),

to

challenge

decision of the Social Security Administration
her

application

("SSI")

under

for
the

Supplemental
Act.

Security

Plaintiff

and

("SSA")
Income

the

a

42

final
denying

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.

l

BACKGROUND

I.

Procedural History
Ms.

McClintonl

filed

an

application

for

SS!

benefits

on

August 22, 2008,2 claiming that she had become disabled on April
22 ,

·
(Adm in.

2008 .

R.

application on the

Tr.

("Tr.")

claim that

28 9-90.)

she

physical and psychiatric maladies.

The
2008.

SSA denied

(Tr.

139-43) .

her

suffered

Plai' ntiff based her
from a

variety of

(Id.).

application

She then

3

initially

on

November

3,

requested an evidentiary hearing

(see Tr. 151-52), which was conducted on December 3, 2009 before
Administrative Law Judge

("ALJ")

In a decision dated December 10,
to be not disabled.
Ms.

Mcclinton' s

Cameron Elliot.
2009,

(Tr.

101-15).

the ALJ found plaintiff

(Id. at 119-28). The Appeals Council granted

request

for

review

1

of

the

ALJ' s

decision

on

Plaintiff is alternately referred to in the record as
Charlene Salters (see,~' Tr. 118), Charlene Salters
Mcclinton (see, ~' id. at 119), and Charlene Mcclinton. (See,
~' 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,

proceedings.
required

vacating

and

remanding

the

case

for

further

(Id. at 132-36). In particular, the Appeals Council

the ALJ to

remand:

1)

evaluate

plaintiff's obesity in accordance with SSR 02-lp,

2)

evaluate

plaintiff's

do

mental

plaintiff's

following

impairments

described in 20 C.F.R.
to

the

§

on

according

to

the

technique

416.920a, 3) give further consideration

maximum

residual

capacity

during

the

entire

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

clarify

the

effect

vocational capacity.

ALJ

Paul

September 22,

A.

the

assessed

limitation

on

her

(Tr. 134).

Heyman

2011,

of

held

April 5,

three

2012,

subsequent

and June

6,

hearings,
2012.

(Id.

on
at

12). Ms. McClinton was represented by counsel at each of these
hearings.

(Id.

at 31,

49,

64,

202).

issued his decision finding Ms.
(Id.

at

12-25).

The

Appeals

On July 13,

2012,

the ALJ

Mcclinton to be not disabled.

Council

denied

Ms.

McClinton's

request for review of the ALJ's decision on November 13,
making the Commissioner's determination final.

3

(Id. at 1-5).

2013,

II.

The Pertinent Record
A. Plaintiff's Submissions and Testimony at the Hearinqs
1 . Submissions

In her initial application,
she was born on April 23, 1967.

Ms.

Mcclinton indicated that

(Tr. 118). As described by the

SSA, Ms. Mcclinton indicated that she suffered from depression,
anxiety, dysthymic disorder,4 spondylosis5 in her lurnbar 6 spine,
knee pain, dyspnea 7 on exertion, and an eating disorder.

(Id. at

She reported that she was unable to climb stairs,

308) .

bend,

crouch, carry, or lift; that it took her about 15-30 minutes to
walk two blocks because she continually had to stop;
took her 15 minutes to stand up after urinating,
had trouble sleeping due to the pain.

that it

and that she

(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.

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.
6

4

2. Bearinq Testimony
At the September 22,
that

she

was

married

seventeen, and twenty.
year

old

daughter

and

helping

she

and

her

did not

had

three

old

after

she

care

formal
have

ages

one,

a

for

the

her,

with

(Id.

at

baby.

the

older

80-81).

She

education had ended in ninth grade,
driver's

license,

and that

she

last

assembling lipstick and

(Id. at 69-70) . She said that she left the job

developed

exertion required,

children,

lived with

worked in 2007, at a cosmetics factory,
lipstick holders.

Mcclinton testified

(Tr. 69, 80). She specified that the one-

twenty-year

testified that her
that

2011 hearing, Ms.

back

problems

for instance,

and

could

not

handle

to walk up the steps.

(Id.

the
at

70) .

a. Pain Alleqations
Ms.
part of
86) .

McClinton
[her]

specified that

she

had pain

"in

back" as well as in both of her knees.

She testified that

the

lower

(Tr.

76,

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,
weight of 225 pounds in 2010.

(Id.

at 69,

from her previous

71-72).

She further

explained that she had lost the weight because she "was sick . .

5

[she]

kept

getting

sick

back-to-back.

back

pain,

[She]

couldn't

eat

anything." (Id. at 97).

In

explaining

her

she

testified

that

an

MRI

showed that there was a lumbar disc bulge that was "twisting."
(Id.
had

at

95) . As for her knee pain,

categorized

it

as

arthritis,

she explained that doctors
partially

caused

existing condition of being born with bowed legs.
92,

94) .

by
(Id.

a

pre-

at 89,

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

and

or

something

[she]

catch [es]

a

lot

of

cramps

and

everything in [her] legs." (Id.).

Ms.
abscess

Mcclinton
and

November 2010,
of

Dr.

testified

hernia

that

operations

in

she

had

undergone

September,

pelvic-

October,

and

at Bronx-Lebanon Hospital Center under the care

Leburitz. 8

received follow-up
to the surgeries.

(Id.

at

treatment

71-73).
at

After

the

operations,

Bronx-Lebanon Hospital

she

related

(Id. at 71-7 3) . She also testified that, aside

s 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

as

relationship

since
at

2006

was

of

the

identified

the

and

Dr.

time

at

73-74) . 9

She

current

hearing.

Alvarez 10

General")

treating

physician

{Id.

her

at

North

General and the one who prescribed a pain medication and muscle
relaxant for her.
medication

she

{Id. at 74-75). She testified that despite the
cannot

"excruciating pain."

do

{Id.

any
at

activities

76).

She

because

showed

the

she

ALJ

has

a

back

brace she was wearing for lower-back pain and testified that Dr.
Winston

Lee

at

the

Columbus

Rehabilitation

Center 11

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,
9

2015).

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,
11

7

coordinating

care

for

her

explained at

Mcclinton

the

hearing

back brace,

her

back

pain.

that

(Tr.

she

77-78).

Ms.

currently wore

and had been doing so for the past two weeks.

a

(Id.

at 90). She also testified that, twice a week for the past eight
weeks,

she

back under
massage,

had been
Dr.

Lee's

receiving

physical

therapy

for

her

lower

supervision --

including exercise bikes,

and weights -- and that Dr.

Lee had prescribed a pain

medicine, Naprosyn. (Id. at 76-78,
during the hearing that Ms.
milligrams

of

87-88)

,12

The ALJ also noted

McClinton was currently taking ten

Cyclobenzaprine 1 3

and

Diclofenac, 14 in addition to the Naprosyn.

fifteen

milligrams

of

(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).
1 2 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,
since

the

she

had

not

received

epidural

shots

birth of

her

youngest

daughter. 1 5

(Id.

Mcclinton explained that when she was pregnant,
taking some of her prescribed medication,

a year,

~couldn't

injections

at

8 6) .

Ms.

she had stopped

but that she was due

to restart the medication the following week.
She testified that she

or

(Id. at 85,

87) . 1 6

go until after the baby turned

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
get a burning sensation.

~body

just locks and stiffens and I

. 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.
at 80-81). She testified that the back brace
. Without it I
also

noted

that

~helps

can't walk or tie my shoe."
taking

the

subway

was

not

(Id.

a little .
at 90).

possible

for

because it required more standing than she could tolerate.
at

82) .

She

testified

that

she

liked

to

read

books, notably novels, as her principal hobby.

newspapers

(Id. at 81).

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

9

(Id.

She
her
(Id.
and

At the

6,

June

2012 hearing,

the ALJ asked Ms.

Mcclinton

additional questions regarding her pain and her weight loss. Ms.

testified

Mcclinton

that

despite

having

maintained

significant weight loss for a year at that point,
was worse than before the weight loss.

her

her back pain

(Tr. 43-44).

b. Mental Health Issues

Regarding

her

mental

status,

Ms.

McClinton

"[r]ight now I'm depressed from my mom's
going
taking

through

it

and

stuff,

so

[c]are of my business,

She also testified that

that's

[death]
why

I'm

stated

and I'm still
now

but I'm still crying."

having a

that

back
(Tr.

and
91).

baby had negatively affected

her mental state by increasing her depression, though she denied
that

her

care

depression.

(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,

described her symptoms as related to bipolar disorder.

(Id.

had
at

11 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).
10
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) . 1 9 She described a lack of appetite as a
depression
that

"by

nothing."

that
my

facilitated

depression,

(Id.

at

98) .

dramatic

I

don't

weight

really

McClinton also

because

avoided taking buses

Ms.

"the people

symptom of her

loss,

eat.

explaining

I

don't

eat

that

she

indicated
remind []

me

of

dead

people." (Id. at 82).

Ms.

Mcclinton

psychotherapy

at

testified

North

that

General

she

before

had

her

been

pregnancy,

in

group

although

she had not been able to attend due to complications with her
pregnancy and depression following
she was set to resume it shortly.
her

September

2011

hearing

the baby's

birth,

but

that

(Id. at 82-83). At the time of

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

take

the

her

baby

turned a year old, which would have occurred in late 2010.

(Id.

psychotropic

because

medicine

or

she

attend

had

been

group

19

unable

therapy

to

until

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. Seep. 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,
from obtaining treatment.

further prevented her

(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
"very bad"

stomach pain

and

prescribe a new medication.

In
street

response
drug

to

issues?"

ALJ
Ms.

that

her

it

doctor

left her with

was

planning

to

(Id. at 80).

Heyman's

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 Esci talopram Oxalate, a
selective serotonin reuptake inhibitor ("SSRI"). It is applied
to depression, panic disorder, anxiety disorders, obsessivedisorder,
compulsive
disorder,
post-traumatic
stress
premenstrual dysphoric disorder, and social anxiety disorder. 3
Attorneys Medical Deskbook § 40:15.

12

B. Medical Records: Treating Doctors
The

record

includes

outpatient visits
Diagnostic

several

hundred
Hospital

to North General

and Treatment

Center

pages

and North General

("North

General")

reasons and mental health care between May 13,
17,

2010.

(Tr.

758-59) . 22

467-754,

Other

management referral dated September 20,

than

2011

documenting

for

medical

2008 and March
a

(id.

single

pain-

at 758),

the

record does not contain the treatment notes from the successor
institution

to

North General
was

North

General

-- even though Ms.

receiving treatment

2012.

(See

included

II.A.2,

Jamal

Kobeissi,

Dimitri Alvarez,

as well as

(Id.

758-59).

at

from

467-753,

North

illegible,

General
making

it

Family

Health

are

Center

Mcclinton testified that

from care providers there

section

Dr.

the

supra).
Dr.

The

Ruth

North

she

in 2011 and
General

Reid-Thornton,

other doctors

at

and

team
Dr.

and social workers.

We note that portions of the record
in

handwriting

impossible

for

us

to

that
fully

is

partially

decipher

the

names of the care providers or the substance of their written
notes.

(See,

~,

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
a. North General
Ms.

McClinton

health,

met

rehabilitation

with

care

in

medicine,

medicine,

providers

the

women's

neurology,

and

surgery services at North General to address her back pain, knee
fibroid 23

pain,
bowel,
(Id.

uterus,

urination,
at

bowel,

467-91,

pel vie

pain

gynecological,
521-62,

urination,

and

abscess,

as

well

as

axilla, 24 and breast problems.

619-88,

701-54,

758).

The

claimant's

gynecological,

axilla,

and

breast

problems

will not be discussed because plaintiff did not allege them to
be

severe impairments.

(See,

~'

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

difficulties bending

high

levels

forward,

for prolonged periods of time.

of

and a

reported

lower-back

pain,

decreased ability to walk

(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-

Thornton 27 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 non-

radiating 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,
intermittent,
535) .

The

but worsening,

doctor

and that the pain was

which prompted her visit.

noted that

Ms.

Mcclinton

(Id.

at

reported crying at

night due to pain, and that neither the medication Tramado12a nor
a muscle relaxant that she had been prescribed were relieving
the pain.
normal,

(Id.). The doctor observed that the patient's gait was

but

that

limited flexion.

she

had

tenderness

indicates

physical

therapy

December

providing

lumbar

spine

and

that

Dr.

for

(Id. at 535). An October 24, 2008

Reid-Thornton

plaintiff

flexibility and reduce her pain.

On

her

(Id. at 356). She also noted that plaintiff was

taking 10 mg of Lexapro daily.
note

in

3,

2008

temporary

pain

the

to

improve

semiweekly

her

strength

and

that

Naprosyn

was

(Id. at 530) .

doctor

relief

continuing her Lexapro dosage.

initiated

noted
and

that

(Id. at 686).

the patient was morbidly obese but

not

plaintiff

was

She indicated that

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

to

be

replaced

by

another

20 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,
for a return visit in one month.
also

provided

indicating

a

that

physician's
plaintiff

facet-joint atrophy,
for

one-to-two

had

(Id. at 688). Dr. Reid-Thornton

note,
a

dated

December

lumbar-spine

additional

record

disc

3,

2008,

bulge

and

was undergoing semiweekly physical therapy
months,

and

should

sedentary work only for the next three months.

The

and called

conta.ins

entries

be

limited

to

(Id. at 487).

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.
79,
2008

recounts

on

a

her

history

ten-point

documenting
treatments

of

each
in

of

November

lower-back

with

difficulty

and it listed her pain that day as

scale.

(Id.

plaintiff's
and

pain

December

at

528-29).

eight
2008

The

521-23,

678-79,

exercises well,

683-85).

She

record

consistently

notes

physical-therapy
her

reported

pain as ranging between six and nine on a ten-point scale.
at

678-

683-85). The physical therapy intake form dated October 24,

walking and bending forwardj
nine

(Tr. 521-23,

tolerated

(Id.
the

but her pain tended to increase with prolonged

standing or walking.

(Id.).

17

A reevaluation

form dated January

6,

2009

she had been prescribed therapy on October 24,
from November 11,

2008

to

evaluation reported that

December 16,

confirmed that

2008 and treated

2008.

(Tr.

673).

This

she continued to experience the most

pain in the morning and at night, and that the therapy provided
her only temporary relief.
of

this

report

was

(Id.) .

nine

on

Plaintiff's pain at the time
a

ten-point

scale,

and

she

demonstrated difficulty bending forward,

as well as a decreased

tolerance for prolonged walking.

The form set goals

(Id.) .

increase her range of motion and strength,
pain

through

weeks.

continued

semiweekly

to

and to decrease her

therapy

for

another

four

(Id. at 674).

The

rehabilitation

medicine

report dated January 14,
pain was the same

service

provided

2009 indicating that Ms.

an eight on a ten-point scale.

a

progress

McClinton' s
(Tr.

67 5) .

This unsigned note documented a mildly antalgic gait, tenderness
in the lower back and a decreased range of motion in her back.
(Id.).

The

treatments,

record

also

documents

on February 3 and 6,

2009.

two
(Id.

physical
at

therapy

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

plaintiff

was

team.

taking

General's supervision.

As best we can understand the
the

following

medications

A record dated April 11,

record,

under

North

indicates

2008

that plaintiff was taking Zoloft 29 for her depression and anxiety
(id. at 509); however,

in April she was taken off Zoloft due to

side effects and put on Lexa pro.
her

continued

use

of

Lexapro

(Id. at 615) . Records document

until

her

pregnancy

2009, and then again after her child was a year old.

Tr.

560,

737).

plaintiff was
cholesterol.
Prilosec 31
address

was

in

January

(See,

~'

From at least May 13, 2008 to September 24, 2008
taking
(Id.

at

Simvastatin, 30 presumably to
458,

475,

479,

prescribed between

stomach ailments.

(Tr.

May

479,

535,
2008

532,

address

547,

and

557,

557,

March
560,

high
560).

2009

662,

to

686).

The doctors at North General prescribed plaintiff Gabapentin32 to
address

nerve

pain

in

August

2008;

however,

a

consulting

29 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
it.

(Id.

at 370).

that she had ceased taking

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,

67 5,

682) .

During

the summer of 2009 she took Pepcid as well as prenatal vitamins
and

iron

Keflex 33

supplements.
at

an

(Id.

emergency

problematic abscess.

at
room

623,

653) .

visit

in

She

was

August

prescribed

2009

for

a

(Id. at 622-23).

b . Dr . Wins ton 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.

confirms

visits.

(Tr.

757).

Ms.

McClinton's

testimony

these

(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 disc 34 and stated that the
pain radiated to both of her legs.

On

a

disability

form

(Id. at 757).

dated

September

26,

2011,

Dr.

Lee

checked "yes" next to the questions of whether the claimant's
lifting,
impaired.

standing,
(Id.

occasionally

walking,

at

or

760-61).

frequently

sitting,
Asked
lift

pulling,

whether
and/or

and pushing were

the

claimant

carry,

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 7 61) .

He also reported

that she could balance or kneel only "occasionally."
found that she could not climb, crouch, crawl, or stoop.

Dr.

(Id.) .

He

(Id.).

Lee indicated that plaintiff had "limited" ability to

reach in all directions and could do so only "occasionally," but
that her ability to handle,
was not limited.

finger,

feel,

see,

hear,

or speak

(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,

for

her

The record includes treatment notes from February 19,

2008

children.

climbing

stairs,

and

caring

(Id. at 755).

2 • Mental Heal th

to

September 28,

extensive
General.

2009,

outpatient
(Tr.

492-520,

reflecting that
psychiatry
563-618,

Ms.

and

Mcclinton received

psychotherapy

689-700,

759).

at

North

(See also id.

at

737) (letter dated March 17, 2010 from the North General Clinical
Director

documenting

August

30,

2007) .

social

worker

We

an

ongoing

note

confirmed,

that

that

treatment
plaintiff

she

relationship
testified,

continued

to

since

and

undergo

her
such

treatment in 2011 and 2012; however, the record does not include
treatment notes

for this period of time,

the period from late 2009 through 2010.

Dr.

Jamal

Ms. Mcclinton,

Kobeissi 35 completed two

or,

for that matter,

(Id. at 40-41, 84-85).

evaluative

reports

for

a "Treating Physician's Wellness Plan Report" in

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,
35

22

2008 and a "Medical Source Statement" in 2011,
include

at

Kobeissi.

least

(Tr.

four

465-66,

treatment
509,

517,

sessions

563,

567,

and the records

in

2008

with

Dr.

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

she

had

a

was

homeless

and

unemployed,

report.

sleep challenges,

worsen

of

substance

(Id. at 465). He determined that she would be unable to

work for six months to a year,

a

history

He noted that

and had been sober less than a year at the time of his

abuse,

of

466).

job

evaluation

and anxiety would interfere with the demands

routine,

her

explaining that her low energy,

and

symptoms.
plainly

was

that

"even

(Id.

at

informed

minimal"

466).
by

both

Dr.

job

stress

would

Kobeissi' s

2008

plaintiff's

monthly

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

i'atient 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,
Ms.

Mcclinton

detailed

had

instructions,

interacting

(Id.

simple

in

and

detailed

work pressures

(Id.).

carrying

work-related
public,

or changes

carrying

instructions,

instructions,

the

in

and

in a

decisions,
responding

routine work

and

He

out,

and

remembering

understanding

and

remembering

interacting

also

determined

appropriately
that

she

had

restrictions in interacting appropriately with co-workers.
at

Dr.

764).

experiences

psychotic

interacting
Mcclinton
symptoms

with
reports

when

difficulty
increase

Kobeissi

coping
in

pressures."

also

noted

symptoms

strangers

or

with

symptoms

with

that

(visual
people

withdrawing

working

out

He evaluated her as having "slight"

understanding,

short

supervisors.

simple

with

at 763-64).

restrictions

restrictions

making

appropriately

appropriately to
setting.

"moderate"

Dr. Kobeissi indicated that

she

socially

authority[.]

change
when

(Id.) . Additionally,

and

"Ms.

hallucinations)

no
(Id.
[]
when

does

not

know.

due

to

depressive

Ms.

pressure

confronted

Mcclinton

with

Mcclinton
and

with

Ms.

has

experiences
environmental

social interactions caused her

"manifestations of depressive symptoms that result in expression
24

of anxiety" and rapid heart rate.
"Ms.
use

McCiinton' s
and that

alcohol."
any

impairments

(Id.) . He further noted that

would be present

despite

her mental heal th diagnosis precedes

(Id.).

details,

Neither the 2011

such

as

the

number

report nor the
of

or

dates

alcohol

her use

of

record yield

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
General,

Karageorge,
36

while

provided

serving

psychotherapy

as
to

an
Ms.

Mcclinton eighteen times, through individual and group sessions,
between February 21,
16).

His

notes

functioning,
Mcclinton

2008 and May 1,

included

2008.

information

(Tr.

about

4 93-508,

Ms.

experienced

depressive

symptoms

but

(Id.) .

March

experienced

he

depressive mood,
and

McClinton's

and the general tenor of his comments was that Ms.

responded productively to psychotherapy.
2008

510-

stressors

marital strife.

noted

that

plaintiff

loss of appetite,
related

to

insomnia,

homelessness,

typically

In February and
increased

increased fatigue,

physical

pain,

and

(Id. at 4 93-505) . 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.
that

Ms.

McClinton

ideation.
recent

(Id.

at

sobriety,

(Id.} .

His

February 21,

experienced

a

2008

single

incident

Her mother's death,

493}.

also

challenged

note

her

Karageorge's

early

April

plaintiff's anger and frustration,
depression

when

assignment.

(Id.

2008

and

increased

stopped

going

at

507-08) .

Her

to

again

document

decrease in her

her

mood

her

(Id. at 498).

notes

but also a

she

suicidal

combined with her

depression, which led her to sleep and eat more.

Mr.

of

indicated

job-placement

demonstrated

some

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

on

the

challenges

maintaining

her

she

sobriety.

faced

in

The

her

marriage

treatment

and

with

notes

from

psychotherapists who met with Ms. McClinton in either individual
or group sessions after May 1,
well

as

Karageorge.

The

the

additional

2008 document similar themes, as

stress

of

the

departure

of

Mr.

(Id. at 518, 520).

records

also

include

psychiatrist identified only as Dr.

treatment

notes

from

a

Branch, 37 who met with Ms.

The records do not identify the first name of Dr. Branch
and we were not able to confirm a licensed psychiatrist in New
37

26

McClinton twenty times between July 7,
{Tr. 566,

599,

2008 and June 8,

568, 570, 574, 576, 581, 583-85, 587-90,

605-06,

611).

On June 26,

2009,

2009.

593, 595-96,

using the DSM axes,Je 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 l39J

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,
reported that

she was prescribed Zoloft

in

Dr. Branch

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.
Ms. Mcclinton was later changed to Cymbalta,
psychotropic medications early in 2009,
had become pregnant.

(Id.) . Ms.

(Id.

at 615) .

but stopped taking

presumably because

she

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

optimal,

likely

due

to

that

her

attendance

"increased

social

in

group

was

stressors,"

sub-

such

as

living in a homeless shelter, being separated from her children,
and "the obvious grieving for the
had

left

the

hospital

staff.

loss of her therapist," who

(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

extreme

depressive

found

it

symptoms.

beneficial
(Id.).

in

She

warding

denied

off more

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

symptoms,

and reevaluate medication options after she delivered

her baby.

(Id. at 616).

Dr.
between

for

Inderpreet
July

sessions.

6,

(Tr.

of

a

relapse

Dhillon40 met with Ms.

2009

618,

signs

and

691,

September

694,

28,

(Id.) .

Dr.

Dhillon

more

Mcclinton

2009

in

severe

six times

group-therapy

697-99) . His records consistently

document her mood as euthymic -- that is,
stable.

into

described

self-disclosing member of the group.

her

non-depressed -- and
as

an

empathic

and

(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=l (Last visited Aug.
28, 2015).
29

On March 17,
North

General

2010 Dr.

clinical

William Carr, 41 identified as the

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

weeklyn

and

"is

also

seen

for

medication

management.n

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

3. Cocaine Addiction

The

record

demonstrates

that

had

graduated

from a drug program for cocaine and alcohol in 2006,

and that

she had not had any relapses.

both Dr.

(Tr.

Ms.

McClinton

90) . Additionally,

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_l/profile (last
visited June 18, 2015).
41

30

Branch

and

Dr.

Carr

diagnosed

Ms.

McClinton

Dependence in Sustained Full Remission
754).

Consulting

examiners

provided the same diagnosis.

Dr.

with

(304. 20)."

Harding

and

"Cocaine

(Id.

at

Dr.

616,

Bornstein

(Id. at 367, 395).

The North General records offer conflicting evidence of Ms.
McClinton' s

cocaine use.

Specifically,
positive,

while

the

(Compare id.
October

6,

at 709 and id.
2008

cocaine

at 730).
test

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,
(Id.

at

was

706) .

It

appears

from

the

hospital

records

2008.

that

Ms.

McClinton was scheduled to undergo a hystercscopy 42 on October 6,
2008,

but

that

the procedure

was

rescheduled

for

2008 because she had tested positive for cocaine.
04,

709).

The

procedure

was

conducted

on

October
(Id.

October

27,

at 703-

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

Consul ting

Physicians

and

Non-

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

report

"biopsychosocial"
(Tr.

399-462).

needs
This

on

Ms.

re la ti ve

report

Mcclinton

to

was

regarding

vocational

rehabilitation.

updated

in

June

her

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,

Bronx-Lebanon

documented

abnormal

musculoskeletal conditions and abnormal mood and affect.
409-14,

417-18,

437,

442-47,

457).

On

2008

December

(Id. at

31,

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

2007
but

(Id. at

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).
43

32

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

hours

in

an

eight-hour

reaching and grasping,
three

hours,

and

period,

that

she

had

limits

in

that she should limit pulling to one to

that

she

should

not

perform

any

kneeling, standing, climbing, walking, or bending.

lifting,

(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

typed

back

radiating

a

pain

entry
that

confirming
had

the

worsened

with

identifying limited flexion and extension.

On January 22,
taken,

Dr.

pain,

disorder
noted

gain

nonand

(Id. at 419-26).

after various tests and x-rays were

employment:

dyspnea

on

spondylosis

exertion

and generalized anxiety

that

weight

of

Okpok identified the following conditions affecting

her capacity for
knee

2008,

diagnosis

her

complaints

and

of the

weight

disorder. 4 5

of back pain were

lumbar spine,

gain,
(Id.

at

dysthymic
412).

her most

He

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 flex ion and extension and
minor

degenerative

changes

revealed

on

(Id.).

x-rays.

This

evaluation, performed in January 2008, is repeated several times
in the FEGS treatment record.

The

FEGS

team's

(Id. at 413, 437, 447, 457).

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

shelter,

and a past history of substance abuse.

2007,

living

in

a

homeless

(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 NOS 47
(307.50)

Axis II: Other
Comments: Axis II: Deferred.
Axis III:
Comments: Back and Knee Pains, Dyspnea on exertionweight 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

1481

(Id. at 431-32).

Supporting

the

FEGS

evaluations

are

visit

entries

social worker Robin Kaynor. 4 9 On December 31,

2007,

conducted

history

an

intake

evaluation

and

patient

Ms.

from

Kaynor
for

Ms.

McClinton documenting that for "several days" over the previous
two weeks,
felt

she felt down,

depressed,

or hopeless,

and that she

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

that

Ms.

McClinton

could

48
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 i s a social worker at FEGS.
"Robin Kaynor,"
lead411, https://www.lead411.com/Robin_Kaynor_l7461622.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

appointment)
(Id.

but

was

at 405). Ms.

by

bus

(and

had
she

in pain when

taken
walked

the

bus

to

the

long distances.

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 Fernandos 1
On October 8,

2008,

Dr.

orthopedic examination of Ms.
SSA.

(Tr.

369-74).

McClinton at

the

chronic,

consultative

request

Relevant to plaintiff's claims,

diagnosed plaintiff with
obesity,

Fernando conducted a

Dr.

of the
Fernando

non-radiating back pain

and

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 alln (0 points), "several daysn (1 point), "more
than half the daysn (2 points), or "nearly every dayn (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.
s1 Justin Fernando, M.D. is licensed in the State of New
York, No. 243090. "Verification Searches,n 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.,n 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 non-

radiating 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.
Dr.

(Id.).

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

but normal straight-leg raising results.
clinical observations

he ordered of her right

were

negative.

Mcclinton

reported

at

knee and her
Dr.

371-74).

taking

10

mg

of

spine

(Id.) . 52 Otherwise,

revealed no abnormalities.

rays

(Id.

lumbosacral

(Id.) .

The x-

lumbo-sacral

Fernando

noted

Lexapro

and

spine

that

500

his

Ms.

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.

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

at

3. B. Beavan54
On October 29,
review,

B.

Mcclinton' s

ultimately

functional

based on a medical evidence and file

Beavan concluded that the medical record "partially

supported" Ms.
but

2008,

found

capacity55

Specifically,

B.

allegations of pain and incapacity,

that
("RFC")

Ms.

McClinton

had

for

"light" work.

the
(Tr.

residual
375-80) ,56

Bea van 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.
at

376).

He

found the need for

non-exertional
stooping,

activities,

kneeling,

occasional

such

crouching,

and

as

(Id.

limitations to the

climbing,

crawling,

balancing,

because

of

the

54 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,
examination
guarded"

the

with

anxiety,

remission.

(Id.

(Tr.

of

well

at

as

367).

provide

an

unemployment.

Axis-V

(Id.

and

gave

with
and

depressed

alcohol

at Axis

diagnosis,

living in a
at

a

"fair

to

Bornstein diagnosed Ms.

noted back pain

symptoms

documented stressors such as
long-term

Dr.

cocaine

She

aggravator to her
or

SSA

disorderse

relevant

Axis-IV

the

365-68) .

adjustment
as

Bornstein performed a consultative

behest

prognosis.

Mcclinton
mixed

at

2008 Dr.

365,

dependence
as

III,

a

and
in

medically

but did not

even

homeless
368).

mood

Dr.

though

she

shelter and
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.
57

39

conducted a mental-status
dysphoric
normal

and

gait

delusions,
skills.

dysthymic,

and

but

behavior,

coherent
intact

at 366-67) . However,

could

(Id.

at

follow

tasks,

simple

maintain

appropriately,
amounts

of

367).

The

stress

~low

and

and

regular

to be

groomed with

hallucinations
and

a
or

memory

the doctor found plaintiff's

instructions

maintain

neatly

without

psychologist

concentration

Mcclinton

concentration

cognitive functioning to fall in the
range."

found Ms.

otherwise

possessing

and

(Id.

exam and

average to borderline
opined

directions,

attention,

schedules,

new

decisions

with

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

she

might

that

are

mental

RFC

complex.

when

adequately

limited
to

supervision

and

learn

make

cope

plaintiff

relate

require

appropriately,

that

performing

tasks

(Id.).

5 . T . Barding59

On

October

assessment
record.

based on

(Tr.

moderately

30,

381-97).
limited

concentration,

2008,
a

T.

review
T.

in

Harding
of

prepared

the medical

a

evidence

in

the

Harding determined that plaintiff was
terms

of

her

ability

interact appropriately with the

to

maintain

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,
respond appropriately to changes
395-96) .

He

evaluated

the

in the work setting.

record

with

regard

to

and

(Id.

each

at

of

the

regulatory listings for mental illness and found that plaintiff
had

systems

satisfy the
plaintiff

of

activities

disorder

regulatory criteria.
had

functioning

adjustment

moderate

and
of

(Id.

at

limitations

did

in

concentration,

daily

that

life.

(Id.

and
at

a

384).

He

precisely
found

maintaining

mild

391).

not

limitation
With

regard

that

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

can

travel

and

friends.

(Id.

independently,
at

397).

and
He

socializes

found

with

plaintiff's

"Paragraph C" criteria refer to paragraph C of Listings
12. 04 and 12. 0 6. 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).
60

41

allegations regarding her mental impairments and consequential
incapacity to be "partially supported" by the evidence.

(Id.).

D. Vocational Expert Evidence

On

two

separate

interrogatory for Mr.

occasions

the

Raymond E.

ALJ

Ce star,

posed

a

written

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,

provided

2011,

emphasizing

the
an

ALJ
RFC

that

used

the
the

following
regulatory

sedentary work

but oddly employing the

"light/sedentary"

not

found

in

the

hypothetical,
definition

imprecise

for

language

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)[6lJ 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.
Ms.

at 343-44).

In response,

Mr.

Cestar first determined that

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

employment.

(Id.

listed three

he

did not

at 343).

occupational

know the nature

of

that

self-

In answer to the second question,
titles

and

corresponding

codes

he

from

the Dictionary of Occupational Titles 62 for jobs that existed in
the

national

hypothetical
bagger,

economy
could

920. 687-018;

do

which

an

individual

cafeteria

described

attendant,

and cleaner/housekeeper,

by

the

311. 677-010;

323. 687-014.

(Id.

at 344).

~
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,
~, 20 C.F.R. § 416.966-416.969.

43

On

February

hypothetical,

2012,

the

ALJ

describing an individual

as defined by the regulations, 63

work,

imprecise

language

regulations
and

6,

the

same

"light/sedentary"

provided

second

a

limited to doing light
--

but again with the

not

found

in

the

with the accommodation to sit or stand at will
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]. C64J 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.

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) .
63

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.

Ce star replied

that there were insufficient jobs in the national economy for a
person described by the hypothetical because "the higher level
occupations which
casual

contact

sedentary level

could be

with
job

the

do

general
.

.

cited
public.

require more
There

is

only

than
one

that permits the elective sit/stand

option." (Id. at 354).

On

April

plaintiff's
regarding

in

the

ALJ

responses

to

counsel,
his

interrogatories.
his

2012,

5,

response
called
the

Mr.

two

to

objections
Cestar

previous

to

from

testify

vocational

(Id. at 49-63). Plaintiff's counsel stated that

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.
attorney

that

his

(Id. at 53). He agreed with plaintiff's

determination

that

she

had

prior

work

experience would have been incorrect if her earnings statements
merely

reflected

stated that

the

welfare
file

medical evidence,

but

provided by the ALJ.

payments.

provided

to

rather was
(Id.

(Id.

at

him did

54) .
not

The

VE

include

also

direct

limited to the hypotheticals

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
worker

65

the
from

June
the

6,

2012

Sauti

hearing,
Yetu

Audrey Tinsdale, 65 a

Center

for

African

social

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

physical and mental capacities.
social worker,

Ms.

observations

(Tr.

33-42).

Tinsdale visited Ms.

of

plaintiff's

As a preventative

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.
at 36,

41) . She testified that Ms.

when they met,
walked with

that

a

McClinton was mostly seated

she could not walk quickly,

"slight

limp."

(Id.

(Id.

at

36) .

Ms.

and that
Tinsdale

she
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,

struggle.
visits

and

leaving

her

home

to

find

a

job

would

be

a

(Id.) . Ms. Tinsdale observed that during her biweekly
between

September

2011

and

June

consistently moved with demonstrable pain,
back and her legs.

2012

plaintiff

particularly in her

(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 Eliqibility
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,

anatomical,

the

claimed

physiological,

disability

must

result

"from

or psychological abnormalities which

are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques."
Apfel,

167 F.3d 770,

disabled

as

defined

Id.

773
by

§

1382c(a)(3)(C);

(2d Cir.
the

1999).

statute,

the

accord Tejada v.

In addition to being
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

impairment be "'of such severity that
unable to do

[her]

physical

[plaintiff]

previous work but cannot,

or

mental

is not only

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,

U.S.C.

423(d) (2) (A)).

§

388

F.3d 377,

383

(2d Cir.

2004) (quoting

42

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

specific job vacancy may not exist.
1382c (a) (3) (B).

In

Commissioner must
diagnosis

or

assessing

consider:

medical

subjective

evidence

plaintiff

and

of

other

a

lives

of

based

and

witnesses;

that

disability,

objective medical

opinions

or

a

42 U.S. C. §§ 423 (d) ( 2) (A) ,
claim

"(l)

pain

she

on

disability
and

( 4)

those

facts;
facts;

testified
the

the

to

(2)
( 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,

original)

94

F.3d 40 1

44-45

(2d Cir.

1996) (emphasis in

(quoting Rivera v. Schweiker, 717 F.2d 719, 722-23 (2d

Cir. 1983)).

Plaintiff
steps,
to

bears

the

burden

of

proof

on

the

first

four

but the Commissioner bears the burden on the fifth step

demonstrate

plaintiff
Poupore

can

v.

the

existence

perform.

Astrue,

566

of

See,

~'

F.3d

303,

jobs

in

id.
306

at

the
45

economy

(quoting

(2d Cir.

2009).

that
same);

At

the

fourth step, which requires assessing the RFC, if a claimant has
more than one impairment, all medically determinable impairments
must be considered,
C.F.R.

§

including those that are not "severe." 20

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

symptomology,

could

interfere

including

with

regular and continuing basis. 20 C.F.R.
also

Clarification

of

Rules

work
§

Involving

pain

and

activities

other
on

a

416.945(a) (1)-(3). See
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,
Commissioner

in meeting her
may

rely

on

the

burden

on the

fifth

Medical-Vocational

step,

the

Guidelines

contained in 20 C.F.R. Part 404, Subpart P, Appendix 2, commonly
referred to as "the Grid [ s] . "66 Zorilla v. Chat er,

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. [6 7 ]

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,
(quoting Rosa v. Callahan, 168 F.3d 72,

F.3d at 383

78

388

(2d Cir.

1999)). These other limitations -- called non-exertional in the
regulations

{see 20 C.F.R.

§

or restrictions which affect
demands

of

demands

jobs

other

other
than

than

416.969a)

[a claimant's]
the

sitting,

carrying, pushing or pulling . .
WL 21108321, *11 n.14
§

416.969a{a));

"[t]he

Grids

exhibits

a

see

are

-- include "'limitations
ability to meet the

strength

demands,

standing,

.'" Samuels v.

20

inapplicable

significant

C.F.R.

§

in

cases

non-exertional

Barnhart,

2003

{quoting 20 C.F.R.

416.969a(c)).
where

the

impairment

Indeed,
claimant

(i.e.,

impairment not related to strength)." Selian v. Astrue,
409, 421 (2d Cir. 2013)

is,

lifting,

walking,

(S.D.N.Y. May 14, 2003)
also

that

an

708 F.3d

(citing Rosa, 168 F.3d at 82; 20 C.F.R §

404.1569a{c) (2)).

IV.

The ALJ's Decision

On July 13,

2012,

that

plaintiff was

Act.

{Tr.

13).

not

ALJ Heyman rendered a
disabled within

the

The ALJ determined that Ms.

52

decision finding
def ini ti on

of

the

Mcclinton had not

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

substance

abuse

determined

that

in

form

of

obesity, a depressive disorder,

degenerative disc disease,

of

impairments

and

remission.

these

(Id.

impairments

at
were

in

14).

the

The ALJ further

severe

due

to

their

combined effect. (Id.).

At

step

three,

impairments

did

Subpart

Appendix

P,

the

not meet
1.

ALJ
the

(Id.

ruled

that

the

claimant's

listings

in

20

at

He

observed

15).

CFR

Part
that

404,
Ms.

Mcclinton' s back condition did not meet or equal listing 1. 04
because

there

demonstrated

was

no

through

evidence
the

of

negative

nerve-root
x-ray,

"mostly normal neurological examinations."

involvement

negative
(Id.) .

As

MRI,

as
and

for Ms.

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

or

equal

listing

12.04

because

at

least

two

of

the

"paragraph B" criteria 68 for mental impairments were not met.
The "paragraph B" criteria are: (1) marked restriction of
activities of daily living; (2) marked difficulties in
68

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."
by Dr.
that

Bornstein and a
in

"social

difficulties."
the

state's

at

ALJ

or

claimant

found

pace,

15-16).

the ALJ found

the

that

has

Bornstein,

with

claimant

Last,

as

moderate
and

"regard

to

has moderate

reported

by

Dr.

the ALJ found that "the claimant has experienced no

episodes

of

duration."
criteria

(Id.

the

in reliance on Dr.

the

persistence

difficulties."
Bornstein,

Third,

assessment,

based on findings

consultant's assessment,

functioning,

(Id.) .

concentration,

(Id.) . Second,

decompensation,

(Id.

were

at 16).
not

have

been

of

extended

The ALJ also found that "paragraph C"

present

that the claimant ha [d]

which

because

"there

[was]

no

indication

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
found

step

that

exertional

four,

she

the

ALJ

assessed

could perform light

limitations,

he

concluded

Ms.
work.
that

Mcclinton' s
(Id. ) .
Ms.

As

RFC
for

Mcclinton

and
nonwas

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

a

of

unrestricted.

depressive

disorder,

but

otherwise

was

(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.
the ALJ concluded
the

medical

that

evidence

" [ d] espi te

(Id. at 16-17). However,

the

demonstrate[d]

claimant's

that

the

allegations,

claimant

[was]

capable of doing light exertion irrespective of her back pain
and

obesity."

(Id.

at

1 7) .

Specifically,

"there

[were]

documented clinical signs in the treatment notes and what
there

[was]

few
[was]

mostly negative," and there were "no other legible

positive signs registered in the treatment entry." (Id.) . 69

The
treating

ALJ

identified

source,"

but

North

otherwise

General

as

observed

plaintiff's
that

"there

"chief
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

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.
69

55

one -- "one of the few documented positive clinical signs" -- on
July 30, 2008.
and

(Id.). He recognized that complaints of back pain

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,

that

degeneration,

it

flattening

showed
of

bulge

the

and

anterior

facet
thecal

narrowing of the lateral recesses.

The ALJ stated that Dr.
treating

physician

claimant was
that

from

sac

and

General,

the ALJ observed that although Dr.

one of plaintiff's

had

found

(Id.
Lee,

at

the claimant had physical restrictions,

that

the

'disabled'

and

18).

Additionally,

the treating physician

from Columbus Center for Medical Rehabilitation,

had found that

"no clinical signs were

referenced in the report," other than a "dated" MRI.

recounted the

medical team's

report,

with

mild-to-moderate

"only temporarily and only partly

she could do sedentary work."

The ALJ

along

(Id. at 18).

Reid-Thornton,

North

indicating

findings

of

the

which noted "obesity,
56

(Id.) .

January

2008

FEGS

peripheral edema,

joint

swelling,

bilateral

knee

crepitations

positive straight[-]leg raising."

(Tr.

19).

and

a

bilateral

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,
report,

and that "elsewhere in that

the claimant was found to have no physical findings on

examination except for some limited flexion and extension." (Id.
at 19)

.10

The

ALJ

gave

consulting

examiner

opinion

support

significant

to

light

exertion,

other

clinical

examination

of

Dr.
a

Fernando.

finding

because

the

examinations
the

weight

to

He

that

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 inflexion and straight-leg raising.

The

ALJ

cited

three

principal

reasons

supporting

determination that Ms. McClinton could do light work.
First,

"the

positive

record

clinical

fail [ed]
signs."

to

document

(Id. ) .

much

Second,

(Id.).

in
the

(Tr.

the

his
20) •

way

of

claimant's

10 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;

emergently

treated

for

back

pain

she

and

[had]

[had]

never been

never

required

surgery." (Id.). Third, other than a "dated MRI" from 2008,
Lee's

opinion

did

signs."

not

By

"considerably

more

reference

Dr.

contrast,
realistic

any

in

"clinical
Fernando's

light

of

the

or

Dr.

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

advised

to

in her

increase

activities

her

physical

of daily

living,"

activity,

she was

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
light

exertion"

otherwise.

because

nothing

in

[her]

the

ability to do

record

suggested

(Id. at 19).

n 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
that

concluded
consistently

the

claimant's mental

stable

and her mental

status

the

ALJ

[had]

been

examinations

normal

depression

claimant's

"the

impairments,

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."
The

ALJ

also

cited

the

report

of

Dr.

Carr

(Id.

as

at 20-21).

noting

a

GAF

consistent with "no more than moderate psychiatric limitations."
(Id. at 21).

The ALJ declined
Kobeissi,

one

of

to

accord

plaintiff's

"t.he

June

treating

2008

report

psychiatrist

at

of

Dr.

North

General Hospital, much weight because "[i]t is difficult, if not
impossible,

to

reconcile

treatment records,
mental

status

examinations
Kobeissi' s

report

with

the

contemporaneous

most of which indicated that the claimant's

had

were

this

stabilized

normal."

and

(Id.

at

that
23).

her

mental

However,

he

at

gave

Dr.

October 2011 report "significant weight" because it

was "well supported by the contemporaneous treatment
(Id.

status

21).

The

2011

report

stated

that

Ms.

records."

Mcclinton

was

slightly or moderately restricted in various mental

functions,

and,

'moderate'

according

to

the

ALJ,

"an

individual
59

with

a

restriction is still able to function satisfactorily."

(Id.

at

21) .

According

to

the

ALJ,

Ms.

McClinton's

mental

improved with treatment and demonstrated periods
(Id.

at

21-22).

The

ALJ

concluded

that

health

of stability.

"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

ranging from March to September 2009.

clinical

the

signs"

dysthymic
cognitive

mood

the

and

a

determined
report
low

Bornstein,
that

were

to

with respect to Ms.

Mcclinton' s

general

in other mental

and a

range

of

fund

of

he described it as
ability to conduct

"only moderate restrictions"

strengths

positive

affect

borderline

limited

a

consultative

only

"a dysphoric

average

and

a

"the

(Id.) . As for the FEGS report,

daily activities,
capacities,

in

functioning

information."
indicating,

ALJ

record

(Id. at 22).

In addressing the report of Dr.
psychologist,

in the

for

capacities,

some mental
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,
report

2008

of

Dr.

Kobeissi,

decline to accord the June

I

M.D.,

the

claimants

treating

psychiatrist at North General Hospital, much weight."). The ALJ
found that "the claimant would be able to do simple,
tasks

in a

job that

requires

repetitive

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

recognized

that

can

perform."

plaintiff

was

(Tr.

"unable

relevant work," but deemed her a
regulations 72

who

had

"a

24).

to

In

so

finding,

perform

any

he
past

younger individual under the

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.
the

341-45),
DOT.

(Id.

finding
at

24) •

it

consistent
In

accepting

with
the

the
VE' s

12 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.

the same time,

he gave no weight to the VE' s response to the

Light Hypothetical,
sit

and

finding.

(Id.) . At

stand at

because it incorporated an accommodation to
will,

which

was

not

part

of

the

final

RFC

(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

capacity for light work, and

of

the

~is

Grid

rules,

requiring

the

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
asserts

seven

distinct

for

judgment

grounds

on

on the

which

to

pleadings,
reverse

she
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
sources. (See, ~' Tr. 18, 21, 23).
63

included treating

B. Defendant's Arguments
Defendant
of

the ALJ's

brief

asserts

that

findings.

specifically

substantial evidence

(Def.

rejects

Mero.

at

17,

plaintiff's

22,

supports each
24).

claims

Her

that

reply

the

ignored evidence of her physical and mental impairments.
Reply 2-3) .

Moreover,

defendant

asserts . that

ALJ
(Def.

the ALJ properly

evaluated plaintiff's credibility and adhered to the regulations
in his consideration of the evidence provided by the vocational
expert.

VII.

(Id. at 3-4) .

Standard of Review
When

plaintiff

a

challenges

Social

the

Administration's denial of disability benefits,

Security

a court may set

aside the Commissioner's decision only if it is not supported by
substantial

evidence

Chater,

221

F.3d 126,

405(g);

Balsamo

(citing Berry v.
(per

curiam)));

v.

or

was

131

based

(2d Cir.

Chater,

142

Schweiker,

675

see

42

U.S.C.

on

legal

2000)

F.3d

75,

F.2d 464,
405(g)

§

error.

(citing
79
467

(2d

42

Shaw
U.S.C.

v.
§

Cir.

1998)

(2d Cir.

1982)

(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.'"

402 U.S.

389,

401

(1971)

305

197,

229

( 1938) ) ;

U.S.

Richardson

(quoting Consol.
see

v.

Perales,

Edison Co.

also Matthews

v.

v.

NLRB,

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
~'

inferences drawn from the facts.
v.

Apfel,

34

determining

F.

Supp.

whether

Commissioner's

2d

208,

a

but

(S.D.N.Y.

evidence

reviewing

also

Carballo ex rel.

214

substantial

decision,

findings,

court

1999).

v.

Heckler,

174 F.3d 59,

62

F. 2d 1033,

1038

722

(2d Cir. 1999)
( 2d Cir.

In
the

consider

whole record, examining the evidence from both sides. See,
Brown v. Apfel,

Cortes

supports

must

to

the

~'

(quoting Mongeur

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.
642

(2d

Cir.

Sec'y of Health & Human Servs.,

1983).

While

the

conflicting shred" of evidence,
124
must

(2d Cir.
be

set

1981),
forth

ALJ need
Miles v.

"the crucial
with

factors

sufficient
65

not

705 F.2d 638,

"reconcile

Harris,

645

every

F.2d 122,

in any determination

specificity

to

enable

[a

reviewing

to

court]

decide

whether

determination

by

substantial

F.2d 582,

587

(2d Cir. 1984); cf. Snell v. Apfel, 177 F.3d 128,

(2d Cir.

1999)

(explaining

the

Ferraris

v.

importance

Heckler,

is

supported

134

evidence."

the

of

the

728

reason-

giving 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.
novo

Supp. 2d 396,
whether

the

422

(S.D.N.Y.

correct

legal

2010). The court "reviews de
principles

whether the legal conclusions made by the
those principles." Thomas v.

As true,

were

[SSA]

67 4 F.

applied

and

were based on

Supp.

2d 507,

520

(S.D.N.Y. 2009).

Since

disability-benefits

in nature,
complete

proceedings

are

non-adversarial

the ALJ has an affirmative obligation to develop a
administrative

represented by counsel.

record,

even

See Lamay v.

when
Comm' r

the

claimant

of Soc.

Sec.,

is
562

F.3d 503, 508-09 (2d Cir. 2009); Casino-Ortiz v. Astrue, 2007 WL
2745704,

*7

77 F.3d 41,

(S.D.N.Y.
47

Sept.

21,

2007)

(citing Perez v.

(2d Cir. 1996)). To this end,
66

Chater,

the ALJ must make

"every
reports

reasonable
from

Ultimately,

effort"
medical

her

to

sources.

"[t]he

detailed enough

record

to

allow

as
the

help

a

an

applicant

20

whole

ALJ to

C.F.R.
must

*7

(citing

20

C.F.R.

inconsistencies,
lay

out

evidence

resolve

treating physician,

several
these

C.F.R.

§

or

gaps

options

issues,

for

416.920b.74

complete
the

and

claimant's

2007 WL 2745704 at

in

When
the

the

including

there

record,

ALJ

to

are
the

collect

re-contacting

requesting additional records,

a consultative examination,
20

be

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

ambiguities,

regulations
to

§

medical

416.912(d).

§

determine

residual functional capacity." Casino-Ortiz,

get

the

arranging for

or seeking information from others.
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,

Urena-Perez v.

2015) (citing

Astrue,

WL 1726217,

2009

*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,
v. Shalala, 59 F.3d 307,
at

586-87;

2255113,

315

(2d Cir. 1995); Ferraris,

see also Allen ex rel.

*10

(S.D.N.Y.

explained his

Aug.

4,

Allen v.

2006)

Barnhart,

(finding

that

Diaz

728 F.2d
2006 WL
the

ALJ

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.'"

1345030,

*4

(E.D.N.Y.

Sullivan,

771

F.

"'failure

to

Supp.

acknowledge

Pacheco v.

(quoting

June

14,

2004)

1339,

1354

(S.D.N.Y.

relevant

evidence

Barnhart,

Rivera

1991)).
or

to

2004

WL
v.

An ALJ's

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

decisions of the SSA,

authorizes

a

court,

when

to order further proceedings:

reviewing
"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.
388

F.3d

at

382.

If

"'there

are

gaps

405(g); Butts,

the

in

§

administrative

record or the ALJ has applied an improper legal standard,'" the
court

will

remand

the

case

for

further

evidence or for more specific findings.
(quoting
Remand

Pratts

is

v.

Chater,

particularly

94

F.3d

appropriate

development

Rosa,

34,
where

39

of

the

168 F.3d at 82-83
(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

calculation of benefits may be appropriate.
388

F.3d at

386

(discussing Curry v.

Apfel,

solely
~,

See,
209

for

Butts,

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

determinations. 20 C.F.R.

detailed
§

enough"

to

support

416.913(e) (1)-(3). This requires him

to resolve inconsistencies and ambiguities in the record.
416.920b.

Indeed,

his

Id.

§

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

F.3d

404.1520b(c) (1)) (holding

§

that

at

421

in

(citing

20

face

of

the

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

the

physician]
Rosa,
the

ALJ

likely

[the

treating

and sought clarification of his report.").

See also

168 F. 3d at 80.
claimant's

twelve-month
filed

C.F.R.

period

if there

necessary
§

to

medical

is

reach

should

have

contacted

The ALJ may even be required to develop
history

prior

to

for

the

a

date

period
on

reason to believe that
a

decision.

42

U.S.C.

longer

which

than

the

the

claimant

such information is
§

423(d) (5)

(B);

20

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

clarification and additional evidence. Selian,

source

for

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,

inconsistencies in the record,
the ALJ to do so.");
(S.D.N.Y.

Mar.

26,

way to address

such that it

Reynoso v.

Colvin,

2015) (citing

gaps

is incumbent upon

2015 WL 1378902,

Jimenez

or

v.

Astrue,

2013

*13
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

plaintiff's

claim,

supplementation
(holding
missing

that

and
remand

evidence,

evidence was

produced

and

illegible

remand

a

are

is

clarification.
was
a

illegible);

Cutler v.
71

relevant

warranted
Pratts,

appropriate

significant

but

94

where

portion

to

of

Weinberger,

516

at

record

the

the

obtain

F. 3d

the

to

38
was

available
F.2d 1282,

1285
the

(2d Cir.

1975) ("Where the medical records are crucial to

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.
some
"to

Feb.

10,

instances,
fully

and

2009) (holding that "sporadic,

illegible"
fairly

treatment

develop

the

records

justified

record") (citing

F.2d at 1285). But see Kruppenbacher v. Astrue,
*6

(S.D.N.Y.

Feb.

brief and in
remand

Cutler,

516

2011 WL 519439,

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

Wizenberg,
on-one

psychiatrist"
as

medications.
the

were

treating

her

in

2011,

Dr.

a doctor to whom Ms. McClinton referred as her "one-

identified

From

testified

the

and

Dr.

treating

Dimitri

Alvarez,

physician

who

whom

she

prescribed

her

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

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,
General.
General

(See
was

the Institute for Family Health at North

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

therefore,

this

acquire

more

a

history,

and

impairments
reasons,

doctor's notes
complete
his

should

given

preceding

have

treatment

notes

pain management

of

Ms.

2011

hearings;

McClinton's

obtained.

testimony

medical

plaintiff's

regarding

been

plaintiff's

September

should have been subpoenaed to

record

opinion

regarding Dr. Alvarez,

her

mental

(Id.).

at

the

For

similar

same

hearing

the ALJ also should have sought out his

and opinion.
referral

Dr.

Alvarez

on September

signed an order

20,

2011

(Id.

at

for

7 58),

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.
Apfel,

1998

WL

150996,

*7

(S.D.N.Y.
73

See,

1998);

~'

see

Almonte v.

also

Cruz

v.

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

Sec'y of Dep't of Health
1204-05
to

(E.D.N.Y. 1995)

plaintiff's

subpoena

or

treating

&

treating

physician);

Human Servs.,

872 F.

Carroll
Supp.

v.

1200,

(remanding where ALJ issued a subpoena
physicians,

inform 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. 24 7-4 9) . 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,
-,-

~,

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

on

his

although

the

subpoena,

see,

(S.D.N.Y.

Nov.

10,

would

be

evidence

ALJ

own

has

initiative.

some

discretion

Serrano v.

~,

It

bears
whether

Barnhart,

2005) (subpoena
duplicative

of

emphasis
to

that

issue

2005 WL 3018256,

declined

because

evidence

a
*4

proposed

already

in

the

record),

he cannot ignore essential available medical evidence.

This

especially

is

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

enforce the subpoena to North General Hospital,
to

fully

develop

the

record

by

seeking

issue

he also failed

explanation

for

substantial illegible portions of North General records,
than

merely

concluding

that

there

were

"no

and

other

the

rather
legible

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

Considering

that

institution provided the

North

General

vast majority of
75

and

its

successor

plaintiff's medical

and psychiatric
source

is

Therefore,

treatment,

mostly

evidence provided by this

likely

material

to

treating

plaintiff's

claims.

remand is necessary to seek clarification of the

illegible portions,

the

portions

for

the

relevant

period not

present in the record -- between late 2009 and 2012 -- and,
necessary,
v.

available substitutes.

Weinberger,

516

F.2d at

Pratts,

1285

if

94 F.3d at 38; Cutler

(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,

only two disjointed exchanges
the

ALJ

at

the

conclusion

however,

the

transcript

between plaintiff's

of

the

hearings,

yields

counsel

and

the

regarding what, if anything, was requested are unclear.

and

details
(Tr. 44-

45, 98-99).

Once the evidence
the

Commissioner

from North General

should

reconsider

is

developed fully,

plaintiff's

medical

and

psychological impairments in light of the complete record.

2. Dr. Winston Lee

The

record

September 12,
18,

2011

to

contains

2011,
at

a

brief

letter

from

Dr.

Lee

dated

stating that he treated plaintiff from July

least

September

12,

2011

currently caring from Charlene Mcclinton.
76

(Tr.

at

757) ("I

am

."), and a report

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

Lee twice

for

a

week

she had been visiting Dr.

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
7 58) .

"Columbus"

be

This

the

is

a

presumably

care

provider

further

for

indication

Dr.
that

of

the

treatment relationship.

We note that
subpoenaed
Medical

all

on December 16,

medical

Rehabilitation

documents

records
(Tr.

ALJ Heyman apparently

2011,

from

the

250-51);

Columbus

however,

Center

there

in the record that were responsive to that

for

are

no

subpoena

and no indication that the ALJ sought to enforce it. 76

Dr.

Lee's

performed
exertional

opinion,

several

years

restrictions

based

on

his

earlier,"

was

treatment
that

Ms.

and

"an

MRI

Mcclinton

had

consistent with sedentary levels.

at 7 60-61) . A barely legible note in Dr.
Statement to the SSA dated September 26,

(Id.

Lee's Medical Source
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.

The

ALJ

(Id. at 761).

"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

other

--

and because

evidence,

from

2008.

and

(Tr.

it

in

was

inconsistent

particular,

20).

However,

Dr.

we

with most

Fernando's

note

that

of

the

evaluation

Dr.

Lee

is

plaintiff's most recent treating physician with evidence in the
record,
the

and a

cursory

review of his
letter

and

full

summary

treatment notes,
findings

report

rather than
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."
at

least conceivable that

recent
evidence

MRI
is

than

the

consistent

Dr.

ALJ

had

with

September 2011 hearing.

Lee was

(See,

Moreover,

McClinton' s

~

id.

at 89).

relying on a

assumed.

Ms.

(Id.

much more
Dr.

testimony

at 81-82,

It is

Lee's
at

her

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).

considerably

That
in

plaintiff's

2011

is

also

back

pain

supported
78

by

may
her

have
case

worsened
worker's

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

of

the

methods dictated by the regulations to resolve the matter.

Id.

at

the

evidence

416.920b(c).

§

at

hand,

Here,

the

the

ALJ must

utilize

one

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 Treatinq Physician Ru1e May Need to Be Reapp1ied

The
special

treating-physician
deference

to

the

rule

"requires

opinions
79

of

a

an

ALJ

plaintiff's

to

grant

treating

physician." Acosta v.
Apr.

10,

2003).

209 n.5

2003 WL 1877228,

See also Kamerling v.

(2d Cir.

416.927{d) (2).

Barnhart,

2002);

The

Clark,

regulations

143

Massanari,
F.3d at

define

a

*10

(S.D.N.Y.

295 F.3d 206,

118;

20

"treating

C.F.R.

source"

§

as

"your own physician,

psychologist,

or other acceptable medical

source

you,

provided

who

provides

treatment or evaluation,
treatment

relationship

or

has

and who has,
with

you."

you,

with

or has

20

had,

C.F.R.

§

medical

an ongoing

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

case record." 20 C.F.R.
non-examining

sources

§

and

416.927{c) (2).
non-treating

in

[the]

Opinion evidence from
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
80

one-time

examiner without

first

endeavoring

with"

an

disability,

not

reconcile

incomplete

physician) ; Cruz,

be

"to

a

and

ambiguous

912 F. 2d at 13

physician

controlling

issued

substantial

record

Cir.

from

or

grapple

the

treating

(" [I] n evaluating a claimant's

in

treating source's

weight

opinions

evidence

The

that

the

where

are

not

record,

2004) (citing

Veino,

312

should

opinion "is
the

consistent

such

treating

with

other

as

the

opinions

of

Barnhart,

other medical experts." Halloran v.
(2d

contradiction

consul ting physician's opinions or report

given limited weight.") .
afforded

the

362

F. 3d 28,

32

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.
*12

(S.D.N.Y. Oct.

for

instance,

knowledge.

9,

when

"However,

of evidence that

is

Colvin,

2013 WL 5568718,

2013) (quoting Mongeur, 722 F.2d at 1039),
it

is

by

an

expert

with

particularized

not all expert opinions rise to the level
sufficiently substantial

to

undermine

opinion of the treating physician." Burgess v. Astrue,

the

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.
the

20 C.F.R.

"length of the

§

416.927(c) (2).

treatment

These factors

relationship,"

81

the

include

"frequency of

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

record

as

a

whole,"

the

the consistency "with

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,
C.F.R.

§

362 F.3d at 32-33; Snell,

416. 927 (c) (2).

"Good

reasons"

177 F.3d at 133; 20
refer

to

"the

overwhelmingly compelling type of critique that would permit the
Commissioner
Shaw,

to

overcome

221 F.3d at 135.

an

otherwise

valid medical

opinion."

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

articulates

Second

Circuit

an

standard" with regard to the factors
rule) ,

"explicit-consideration

in the treating-physician

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,

Need

to

be

addressing

the

May

supra,

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,

"significant weight" to Dr.
20). According to the ALJ,
"clinical

or

objective

Fernando,
Dr.

signs

and

instead gave

a consulting doctor.

(Tr.

Lee's opinion did not reference
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.
least

to

September

12,

Lee's patient from July 18,
2011,

and

he

stated

that

2011 at
he

was

"currently caring for" Ms. Mcclinton at the Columbus Center for
Medical

Rehabilitation.

(Id.

at

7 57) •

Mcclinton testified at the September 22,

Additionally,

Ms.

2011 hearing that she

had been visiting Dr. Lee twice a week for the past eight weeks.
(Id.

at

78,

88).

This

attests

to

between Dr. Lee and plaintiff.

83

the

treatment

relationship

We observe

that

the ALJ extensively reviewed the

legible

record 77 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.
The

ALJ

clearly

considered the

physical

therapy

(Id.).

conducted

in

late 2008 and early 2009, clinical exams from the summer of 2009
showing

"no

reports

of

living,

tenderness
being

including

household

chores,

able

or

focal

to

conduct

light

public

transportation,

riding
and

deficits,"

babysitting.

(Id.

and

the

activities

at

patient's
of

daily

conducting

17-19).

The

FEGS

report from early 2008 is also consistent with the determination
that she could manage light exertion.
above,

the ALJ

found

Dr.

Fernando's

(Id. at 19). And, as noted
assessment,

contemporaneous x-rays and clinical tests,

supported by

was consistent with

light exertion.

However, given the gaps and inconsistencies in the record -

particularly with regard to the later time period,

when Dr.

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.
11

84

Lee

was

treating

reconsider

the

Ms.

weight

it

Mcclinton
of

Dr.

Lee's

may

necessary

to

should efforts

opinion

be

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

inconsistencies

are

open

in

the

may

Evaluation

possibility

warrant

resolved,

his

we

a

do

that

find

Dr.

plaintiff's

different

not

of

that

RFC

after

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.,

claimant's

the

treating

psychiatrist at North General Hospital, much weight," because he
found that report "difficult,

if not impossible,

with the remainder of the record.

(Tr.

23).

to reconcile"

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
report

ALJ's

determination

that

should be disregarded was

Dr.

Kobeissi's

based on a

June

treatment

2008
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

General between February and June 2008.
72). With the exception of two visits
from March

6,

2008

indicating

that

(Id.

visits
at

at

North

492-520,

563-

a group therapy summary
plaintiff had

an

"extreme

depressive episode" related to an attempt to return to work (id.
at

498)

and a

group therapy summary from June

that her status was "fluctuating"
leading up to Dr.

(id. at 564)

Kobeissi' s June 25,

6,

2008

noting

-- these reports

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 al though 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
capacity to

a

stable

adjust

to

mental

status,

stressful

life
86

self-discipline,
situations.

(Id.

and
at

a
22,

566-618).

notable

One

"fluctuating"

status

on

exception
November

is

10,

indication

an

2008,

of

plaintiff

was

but

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

submitted to the SSA,
would

experience

4,

2011 medical

source statement

Dr. Kobeissi indicated that Ms. McClinton

only

moderate,

slight

or

no

limitations

in

various functional capacities as a result of her psychological
symptoms.
visual

{Id.

at

hallucinations

strangers,

as

pressures.

{Id.

for

several

these

well

symptoms

Mcclinton

and

Her

symptoms

withdrawal
coping

by that

point

would preclude

would

the

difficulty

as

Moreover,

at

social

at 7 64) . Nonetheless,

years

work demands.
Ms.

7 63-65) .

Dr.

need

when

with

included

confronting

environmental

her treating psychiatrist

did not

her

time

suggest

entirely from

that
a

any of

variety of

Kobeissi's 2008 note suggested that
six

months

to

a

year

before she would be capable of returning to work.

of

treatment

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
medicine

and

and capable

treatment,

reasons -- namely,
treatment

notes

we

of

adjusting

find

that

to daily life with

the

ALJ

provided

good

a lack of consistency with the doctor's own

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

416. 929.
weight

In

report

doing

assigned

severity

of

conditions,

of
the

so,
to

her

subjective
ALJ

a

and

Marcus v. Califano,
at

135.

substantial
decision

testimony

other

to

*7

If

the

the

evidence
discount

ALJ's

the

27

subjectively

over

~,

court

claimant's

must

are

subjective

the

perceived
Aronis v.

2003)

(citing

supported

uphold

§

the

(2d Cir. 1979)); Snell,

"'findings

88

C.F.R.

regarding

(S.D.N.Y. Dec. 15,

615 F.2d 23,

20

discretion

and her resulting limitations. See,

Barnhart, 2003 WL 22953167,

F. 3d

exercises

plaintiff's

pain

symptoms.

the

177
by

ALJ's

complaints

of

pain.'" Perez v. Barnhart, 234 F. Supp. 2d 336, 340-41 (S.D.N.Y.
2002) (quoting Aponte
Services,

728

v.

F.2d 588,

Secretary,
591

Dept.

(2d Cir.

of

Heal th

1984)).

and

Human

See also Marcus,

615 F.2d at 27 (citing Richardson, 402 U.S. 389, 401 (1971)).

In assessing

the

claimant's

testimony,

all pertinent evidence into consideration.
Supp. 2d at 340-41; Marcus,
2 9 Fed.

App' x

7 90,

7 94

the ALJ must
~,

Perez,

take

234

F.

615 F.2d at 27; Jordan v. Barnhart,

( 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
Harris

v.

has

a

medically

R.R.

Ret.

Bd.,

(discussing Gallagher v.
1983)).

ascertainable
948

F.2d

Schweiker,

123,

source.

See,

~'

128

Cir.

1991)

697 F.2d 82,

(2d

84-85

(2d Cir.

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

accompanied

plaintiff's

by

"medical

complaints
signs

and

of

pain

laboratory

when

they

are

findings

which could reasonably be expected to produce the pain or other
symptoms

alleged

and

other evidence .

.

which,

when

considered with

all

of

the

, 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).
adjudicator

must

consider

whether

there

is

an

"First, the
underlying

medically determinable physical or mental impairment(s)
an

impairment(s)

clinical

and

that

laboratory

can

be

shown

diagnostic

by

medically

techniques

-- i.e.,

acceptable
that

could

reasonably be expected to produce the individual's pain or other
symptoms."
C.F.R.

§

Id.

See

also Martinez,

2009 WL

2168732

at

*16;

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

20

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
the

first

step

condition that
symptoms)."
than

require

whether

could

Id.

medical

of

(as opposed to the question in

objective

evidence

'reasonably be expected'

When a plaintiff reports

evidence

alone

would

suggest,

reviewing

ALJ

to

consider

a

specific

set

of

factors,

in

plaintiff's

symptoms

and

credibility

of

a

to produce

symptoms more

the

including

establishes

SSA

a

such

severe

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
(~, 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

purpose of section []
claimants

to

simply

offer proof

(W.D.N.Y.

2003)

subjective

and

that

functional

limitations

and

be

substantiated

with

to

it.

The

by

entire

. is to provide a means for
is

not

wholly demonstrable

Barnhart, 280 F.

"Because

difficult

not

consistent

416. 92 9 .

medical evidence." Youney v.
n.4

need

symptoms,

such

quantify,

any

restrictions

Supp.
as

2d 52,
pain,

by
61
are

symptom-related

.'

which

can

reasonably be accepted as consistent with the objective medical

92

II

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

Finally,
by

medical

analysis.

"[o] nly allegations
evidence

To

are

require

to

beyond what

be

subjected

plaintiff

to

fully

is

substantiated

to

a

credibility

substantiate

her

symptoms with medical evidence would be both in abrogation of
the

regulations

Astrue,

491 F.

and

against

Supp.

their

2d 347,

353

stated

(W.D.N.Y.

purpose."

Hogan

v.

2007) (citing cases).

"[I]f the ALJ decides to reject subjective testimony concerning
pain

and

sufficient

other

symptoms,

specificity

to

he

must

enable

do
the

so

explicitly

Court

to

and

decide

with

whether

there are legitimate reasons for the ALJ's disbelief and whether
his

determination

is

supported

Bushansky v. Comm'r of Soc. Sec.,
Sept.

24,

by

substantial

2014 WL 4746092,

2014) (quoting Brandon v. Bowen, 666 F.

evidence."
*7

Supp.

(S.D.N.Y.
604,

608

(S.D.N.Y. 1987)).

ALJ Heyman determined that the objective evidence alone did
not
pain

substantiate
symptoms.

evaluate

Ms.

the
(Tr.

extent
20) .

McClinton' s

of

That

the

plaintiff's

finding

credibility

triggered
in

assertions
the

response

need
to

of
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

his

that

only

reference
credibility

plaintiff's

to
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

contemporaneous

care

by

reports

of

pain.

were

providers
Moreover,

clearly

based

plaintiff's

of
even

on

in

ALJ' s

the

various

findings

that

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.
of

(See,

~'

"severe back pain"

to

id.
Dr.

at 19-20

(rejecting her reports

Fernando and

management in 2011).

94

the

need

for

pain

The ALJ made
factors

references

enumerated

dismissed

them

undergone

in

on

brief

three

C.F.R.

of

her

(id.

at

that

(Tr.

reports

of

the

but

required

apparently

plaintiff

"had

although

the

second,

that

17) ;

back pain

only when

time when she was not

and third,

19);

of

therapy

sparse"

walking long distances and at a
medication

first,

physical

signs were

team documented

FEGS

to each

416.929(c),

§

grounds:

stints

documented clinical
the

20

related

that

plaintiff

taking

"has

never

been emergently treated for back pain and she has never required
(Id.

surgery."

at

20).

The

insufficient for several reasons.
apparent

justifications

regarding credibility:

do

not

ALJ' s

apparent

reasoning

is

The first and third of these
satisfy

they only address

the

required

analysis

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

documentation

was

prepared in January 2008, before her disability onset date,

and

its

it

was

not

a

treating

report was prepared without

records.

(Id.

plaintiff's

at

own

406).

Moreover,

testimony

the

access
the

regarding

imposed on her daily life,
documenting

source,

consistency

the
of

its

to plaintiff's medical

ALJ recounted

the

limitations

in

detail

that

pain

reports of treating physicians
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
aside from the reference to past cocaine

expressly indicate
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,
record

and

credibility

once the Commissioner has assembled a complete

examined

it

in

assessment

full,

she

regarding

should make

an

plaintiff's

explicit

subjective

allegations of pain.

D. The Collective
Considered.

The ALJ is

Impact

required to

of Multiple Maladies

consider

Be

combined effects

the

Must

of

multiple physical maladies and/or psychiatric conditions on the
plaintiff's ability to work,
of

the

individual

regardless of the severity of any

conditions.

Shalala, 54 F.3d 1019, 1031

20

C.F.R.

§

416.923;

Dixon

v.

(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
Leon v.

of whether

every

impairment

is

Secretary of Heal th & Human Servs. ,

(2d Cir.

1984);

Cutler v.

Weinberger,

severe.") (citing
7 34

F. 2d 930,

516 F.2d 1282,

1285

De
937
(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

presumptively credible)

whether

plaintiff's

reported

(and

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

testimony

a

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.

necessary

to

Sept.

29,

properly

2014).

And when a remand is already

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,

~,

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.
98

If

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
expert]

evidence

to

support

a

determination

[vocational

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,
her mental RFC,
job

that

public."
answer

to

to "performing simple and repetitive tasks in a

requires

no

more

(Tr. 16). However,
which

reflective of

the

ALJ

than

occasional

contact

with

the

in the vocational interrogatory, the
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.
00 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. Al though a sedentary job is
99

stated

"light/sedentary"

regulations.

to

this

a

specification

not

found

in

the

(Id. at 343). Adding to this confusion, in response

hypothetical

capacity for

--

directing

sedentary work,

the

regulatory

the VE proposed

codes that required light work. 81

exertional

DOT occupational

(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

light exertion. Rather,
the

ALJ,

detailed

the

VE's

response

of

jobs

requiring

we find that in light of the errors by

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.
01 311. 677-01,
Cafeteria Attendant, features a Strength of
920.687-018,
"L." 1 Dictionary of Occupational Titles 241.
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

discussion in sections VIII .A-E,

already

supra,

addressed

by

the

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,
("BMI") ,02

obesity,
can

be

defined by an individual's Body Mass Index
a

severe

impairment

combination with other impairments.
section

introducing

system requires

per

se

an ALJ to

SSR 02-lp.

impairments
evaluate

on

the

of

its

own

or

in

The definitional

the

impact

musculoskeletal
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-lp).
These levels do not correlate with a particular level of
functionality. SSR 02-lp.
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
physical

past

and

diagnoses

mental

of

RFCs,

obesity

and

came

and

its

impact

on

to

the

well-supported

conclusion that her obesity "has had little to no impact."
18) .

He

grounded

this

determination

in evidence

that

she

her

(Tr.
was

able to carry out her activities of daily living independently,
and

on

her

significant
hearing.
and

September

weight

loss

(Id.) . Unless,

material

evidence

2011
in

testimony

the

three

upon remand,
that

demonstrating

months

prior

to

her
that

the Commissioner finds new

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

treating-source opinions in the record
The ALJ deemed the voluminous

records
102

find

is utterly baseless.
of medical,

psychiatric

and

psychotherapeutic

treatment

at

North

evidence from her "chief treating source."

General
(Tr.

to

17) .

be

the

In so far

as the ALJ erred by not seeking clarification regarding the many
illegible
VIII.A.1,

entries

in

the

North

General

record

(see

section

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

combined

credibility and

impact

impairments.

of

her

Finally,

allegations

non-severe

his

of

medical

determination

pain,

and

at

and

the

psychiatric

step

five

is

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

Accordingly,

we

determine whether,
law,

plaintiff

conclude

that

remand

is

necessary

to

in accordance with SSA regulations and case

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

Federal

Rules

fourteen

(14)

28

of

U.S.C.
Civil

§

636(b) (1) (C)

Procedure,

the

and Rule
parties

72

of the

shall

have

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, 10007, and to the chambers of the undersigned,
500

Pearl Street,

New York,

New York,

timely objections may constitute a
both in the

10007.

York,

New

Room 1670,

Failure to

file

waiver of those objections

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