Clarke v. Colvin

Filing 31

CORRECTED OPINION & ORDER: For the aforementioned reasons, plaintiff's motion is GRANTED, and defendants motion is DENIED. This case is remanded for further proceedings consistent with this Opinion & Order. The Clerk of Court is directed to terminate the motions at ECF Nos. 16 and 22 and to terminate this action. (Signed by Judge Katherine B. Forrest on 4/3/2017) (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
:
:
IRMASTENE FRANCINE CLARKE,
Plaintiff, :
:
:
-v:
:
CAROLYN W. COLVIN, Acting
:
Commissioner of Social Security,
Defendant. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: April 3, 2017

15-cv-354
CORRECTED
OPINION & ORDER1

KATHERINE B. FORREST, District Judge:
Plaintiff Irmastene Francine Clarke seeks review, pursuant to 42 U.S.C.
§ 405(g), of the decision by defendant Commissioner of Social Security
(“Commissioner”), finding that she was not disabled and not entitled to
Supplemental Security Income benefits under Title XVI of the Social Security Act.
The parties have filed cross-motions for judgment on the pleadings. Plaintiff argues
that the Commissioner made several errors in her decision and requests that the
decision be reversed and plaintiff’s claim be remanded for an award and calculation
of benefits, or, in the alternative, for further proceedings. The Commissioner

On January 31, 2017, the Court granted plaintiff’s motion for judgment on the pleadings and
remanded this case solely for calculation and disbursement of benefits. (ECF No. 25.) Subsequently,
defendant filed a motion to alter or amend the judgment. (ECF No. 27.) As the Court notes in its
Order being issued simultaneously with this decision, defendant’s motion is GRANTED. This
Corrected Opinion & Order supersedes the Court’s January 31 decision—the Court now grants
plaintiff’s motion for judgment on the pleadings but remands the case for further proceedings
consistent with this Corrected Opinion & Order.
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opposes, arguing that the decision was legally correct and supported by substantial
evidence. For the reasons set forth below, the Court GRANTS plaintiff Clarke’s
motion for judgment on the pleadings and DENIES the Commissioner’s crossmotion for judgment on the pleadings. As described below, this case is therefore
remanded to the Administrative Law Judge for further proceedings consistent with
this Opinion.
I.

PROCEDURAL AND FACTUAL BACKGROUND
A.

Procedural Background

Plaintiff Irmastene Francine Clarke filed an application for Supplemental
Security Income (“SSI”) benefits on March 28, 2012. (Tr. 143-151.) The Social
Security Administration (“SSA”) denied the application. (Tr. 68-69, 72-83.)
Plaintiff then requested an administrative hearing, Tr. 85-86, which took place
before an administrative law judge (“ALJ”) on June 3, 2013, Tr. 44-67. The ALJ,
before whom plaintiff and her attorney appeared, issued a decision finding that
plaintiff was not disabled and not eligible for monthly SSI benefits. (Tr. 24-38.)
The ALJ’s decision became the final decision of the Commissioner of Social Security
(“Commissioner”) when the Appeals Council denied plaintiff’s request for review on
January 28, 2015. (Tr. 1-6.)

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B.

Factual Background2
1.

Non-medical evidence

Plaintiff was born in August 1967. (Tr. 143.) She attended school through
the tenth grade (in special education) and had past work experience primarily as a
home aid. (Tr. 48, 54, 178-79, 192.) Plaintiff testified that she was disabled due to
manic-depressive disorder, schizophrenia, diabetes, asthma, and high blood
pressure. Plaintiff reported multiple instances of past sexual and physical abuse.
(Tr. 238, 331, 350, 506.) Plaintiff also reported past substance abuse issues. (Tr.
53.)
2.

Medical evidence
a)

Treating physicians

Dr. Elva Naco is plaintiff’s treating psychiatrist at the Center for Urban
Community Services (also referred to as the Jericho Project). (Tr. 234-40, 521-25,
539-608.) Dr. Naco saw plaintiff on November 20, 2010, February 19, 2011, and
March 19, 2011, and on an approximately monthly basis from May 2012 through
March 2013. (Id.)
Using the multi-axial system of assessment,3 Dr. Naco diagnosed plaintiff
with bipolar disorder, acute stress disorder, and cocaine and alcohol abuse on Axis I;

The following facts are drawn from the administrative record.
Under the multi-axial system of assessment, each Axis refers to a different domain of information
that may help the clinician to plan treatment and predict outcome. DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS (“DSM”) 27 (4th ed. 2000). Axis I refers to clinical disorders and
other conditions that may be a focus of clinical attention; Axis II refers to personality disorders and
mental retardation; Axis III refers to general medical conditions; Axis IV refers to psycho-social and
environmental problems; and Axis V refers to global assessment of functioning (“GAF”). Id. GAF
refers to the individual’s overall level of functioning and is assessed by using the GAF scale which
provides ratings in ten ranges with higher scores reflecting greater functioning. Id. at 32, 34. A
2
3

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deferred diagnosis on Axis II; diabetes on Axis III; moderate stressors on Axis IV;
and a global assessment of functioning score (“GAF”) of 58 on Axis V. (Tr. 240, 558,
563, 569, 576-77, 580, 584, 587-88, 594, 599.) Dr. Naco noted that plaintiff had a
history of being abused and poor compliance with her medication. (Tr. 540-41.) Dr.
Naco prescribed plaintiff Abilify and Seroquel for mood lability. (Tr. 542, 544, 549.)
On May 5, 2012, plaintiff reported to Dr. Naco that plaintiff had been clean
and sober for six weeks, but that she continued to experience mood swings, poor
focus, and periods of irritability. (Tr. 237.) Dr. Naco noted that plaintiff appeared
well-groomed and wore casual and clean clothes. (Tr. 238.) Dr. Naco reported that
plaintiff experienced ongoing symptoms of insomnia, flashbacks from past rapes,
decreased focus, anger, and mood swings. (Id.)
On May 5, 2012, Dr. Naco also detailed her medical opinion on the severity of
plaintiff’s bipolar disorder in a Psychiatric/Psychological Impairment
Questionnaire. Dr. Naco noted clinical evidence of poor memory, sleep and mood
disturbances, substance dependence, intrusive recollections of traumatic experience,
difficulty concentrating, and hostility/irritability. (Tr. 275.) Dr. Naco assessed that
plaintiff had no limitations of her abilities to understand, remember and carry out
one or two step instructions; ask simple questions, or request assistance; be aware
of normal hazards; take appropriate precautions; and travel to unfamiliar places or
take public transportation. (Tr. 277-79.) She assessed that plaintiff had mild
limitations of her abilities to make simple work-related decisions. (Tr. 278.)

GAF of 41 to 50 indicates serious symptoms or serious difficulty in social, occupational, or school
functioning. Id.

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Dr. Naco further opined that plaintiff was markedly limited – defined as
being effectively precluded from performing the activities in a meaningful manner –
in her ability to perform activities within a schedule, maintain regular attendance,
and be punctual with customary tolerance; work with or near others without being
distracted; set realistic goals or make plans independently; and complete a
workweek without interruption from psychologically based symptoms. (Tr. 276279.) Dr. Naco assessed that plaintiff was moderately limited – defined as
significantly limited but not totally precluded – in her ability to remember locations
and work-like procedures; understand, remember, and carry out detailed
instructions; maintain attention and concentration for extended periods; sustain
ordinary routine without supervision; interact appropriately with the general
public; accept instructions and respond appropriately to criticism from supervisors;
get along with co-workers or peers without distracting them or exhibiting
behavioral extremes; maintain socially appropriate behavior and adhere to basic
standards of neatness and cleanliness; and respond appropriately to changes in the
work setting. (Tr. 276-78.)
On May 5, 2012, Dr. Naco also completed a separate questionnaire for the
Social Security Administration (“SSA”) opining that plaintiff was unable to work.
Dr. Naco further opined that plaintiff had limited understanding and memory due
to poor focus and limited sustained concentration and persistence, social
interaction, and adaptation due to mood swings, racing thoughts and irritability.
(Tr. 514-19, duplicated at Tr. 609-12, 615.) In this report, Dr. Naco included mental

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status findings, indicating that plaintiff’s thought process was goal-directed, but
that plaintiff’s mood was irritable and angry at times; she had occasional mood
swings and her affect was reactive. (Tr. 616.) Plaintiff’s ability to perform
calculations was fair due to diminished focus. (Id.) Plaintiff’s insight and judgment
were impaired at times. (Id.) Plaintiff was maintained on Seroquel and supportive
therapy. (Tr. 617.) Her illness was chronic, but “better at this time.” (Id.)
On May 19, 2012, Dr. Naco responded to the SSA’s request for specific
examples to support her conclusion that plaintiff was limited with respect to her
abilities in understanding and memory, sustained concentration, social skills, and
adaptation. (Tr. 497, duplicated at Tr. 603.) Dr. Naco responded that her report
was based upon her own observations that plaintiff was “quite hyper” and needed
redirection and was “easily irritable, nervous, and impatient” during severe mood
swings, causing problems with focus and memory. (Id.) She also stated that
plaintiff could be quite sensitive to minor criticisms “and has had issues with staff
members.” (Id.) On June 9, 2012, Dr. Naco continued to report that plaintiff was
unable to work. (Tr. 600.)
On October 20, 2012, Dr. Naco completed a FEGS WeCare Medical report.
(Tr. 234.) Plaintiff’s diagnoses were bipolar disorder, PTSD, and cocaine abuse in
partial remission. (Id.) Plaintiff had mood swings, irritability, flashbacks of past
rapes, low energy level, and a diminished memory. (Id.) Plaintiff was on Seroquel
and Ambien. (Tr. 234.) Her illnesses were chronic with a relapsing and remitting

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course. (Id.) Dr. Naco reported that plaintiff was unable to work for at least 12
months.
On March 2, 2013, Dr. Naco completed a second Psychiatric/Psychological
Impairment Questionnaire that recorded findings generally unchanged from the
first questionnaire completed on May 5, 2012. (Tr. 618-625.) Dr. Naco reported
that plaintiff’s use of drugs and/or alcohol was a symptom of her condition or form of
self-medication, and that plaintiff’s disability was independent of any substance
use. (Tr. 626.)
From October 2012 through April 2013, plaintiff also saw Eloisa Negron
Rodriguez, a licensed social worker, in the medical office of Dr. Indrani Persaud,
plaintiff’s primary care physician. (Tr. 638-39, 642-43, 647-56, 663, 686, 695, 71518, 721.) Ms. Rodriquez saw plaintiff approximately monthly, providing therapeutic
counseling for complaints of depression.
In addition, plaintiff was seen by Dr. Persaud for medical care. Dr. Persaud
saw plaintiff anywhere from once a month to once in six months. (Tr. 242.) On July
18, 2012, Dr. Persaud completed a “Multiple Impairment Questionnaire” diagnosing
plaintiff with uncontrolled diabetes, asthma, bipolar disorder, schizophrenia, and
bilateral leg pain. (Id.) Dr. Persaud noted that plaintiff had symptoms of daily
bilateral leg pain. (Tr. 243.) According to Dr. Persaud, plaintiff’s pain was severe,
rating it a 9 on a scale of 1 to 10. (Tr. 244.) Dr. Persaud did not list fatigue as a
symptom, but when asked to rate it, she stated that it was moderately severe – an 8

7

on a scale of 1 to 10. (Tr. 244.) Dr. Persaud noted that medication did not fully
relieve plaintiff’s pain. (Id.)
Dr. Persaud opined that in an eight-hour workday, plaintiff could sit for one
hour and stand/walk one hour. (Id.) She would have to get up from the sitting
position every thirty minutes or so, and could sit back down after another 30
minutes. (Id.) She could lift up to ten pounds. (Tr. 245.) Dr. Persaud assessed that
due to pain and stiffness in plaintiff’s fingers and hands, plaintiff had moderate
limitations of grasping, turning, and twisting objects, fine manipulation and
reaching, including overhead. (Tr. 246.)
Dr. Persaud stated that plaintiff’s condition would interfere with her ability
to keep her neck in a constant position and that her symptoms would interfere with
her attention and concentration. (Tr. 246-47.) Stress impacted plaintiff’s
symptoms, and according to Dr. Persaud, she was therefore unable to tolerate even
low stress work. (Tr. 247.) Dr. Persaud indicated that plaintiff would regularly
need to take unscheduled breaks of one hour, Tr. 247, and miss work more than
three times a month, Tr. 248. In addition, from a check off list, Dr. Persaud
indicated that plaintiff had psychological limitations; had to avoid noise, fumes,
gases, temperature extremes, humidity, dust, and heights; had limited vision; and
was unable to pull, kneel, bend or stoop. (Tr. 248.)
On October 23, 2012, Dr. Persaud completed a medical report for the FEGS
WeCare program. (Tr. 232-33.) She diagnosed plaintiff with diabetes, asthma and
bipolar disorder. (Tr. 232.) She noted that plaintiff was alert and oriented times

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three (she had orientation of time, place, and person). (Tr. 232.) Plaintiff had a
normal physical examination with the exception of bilateral expiratory wheezing.
(Tr. 232.) Despite medication, her diabetes was uncontrolled. (Tr. 232.) Plaintiff’s
asthma was mild and persistent. (Tr. 233.) Her bipolar disorder was in “remitting
course.” (Tr. 233.) Dr. Persaud indicated that plaintiff had no functional
limitations, but that she was unable to work for at least twelve months due to
depression and mood swings. (Tr. 233.)
b)

Consulting medical sources

On May 14, 2012, Howard Tedoff, Ph.D. conducted a consultative psychiatric
assessment of plaintiff at the request of SSA. (Tr. 505-08.) Plaintiff reported
sobriety for the past year. (Tr. 506.) She complained of hearing voices and seeing
faces. (Id.) Plaintiff stated that she could only read at a third grade level and had
only limited multiplication skills. (Id.)
Plaintiff was cooperative during a mental status examination. (Id.) Her
manner of relating, social skills, and overall presentation were adequate. (Id.)
Plaintiff was dressed and groomed casually, her posture and gait were normal, and
she made appropriate eye contact. (Id.) Plaintiff spoke intelligibly and in a
relevant and goal-directed manner and conversed interactively. (Id.) Plaintiff’s
thought processes appeared coherent and “to some extent” goal-directed. (Tr. 507.)
Dr. Tedoff noted that plaintiff had a history of auditory and visual hallucinations
that were in remission on medication. (Id.) Plaintiff denied suicidal ideation. (Id.)
When not on medication, plaintiff engaged in self-hurting behavior. (Id.)

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Plaintiff was tearful about her history; her affect was congruent with her
speech and thought content. (Id.) Plaintiff’s mood was euthymic on medication, but
without medication, psychotic features prevailed. (Id.) On medication, plaintiff was
oriented times three. (Id.) Plaintiff’s attention and concentration were mildly
impaired; she had difficulty with calculations and counted up instead of down in
doing serial threes. (Id.) Upon recent and remote memory skills testing, plaintiff
could recall six digits forward, three digits in reverse order and recall three out of
three items after five minutes. (Id.) Plaintiff’s insight was good and her judgment
was fair on medication. (Id.) Plaintiff’s cognition appeared to be near average with
a weak fund of information. (Id.)
Dr. Tedoff opined that plaintiff was able to follow and understand simple
directions and instructions and perform simple tasks independently, and that she
had adequate attention and memory to perform the demands of simple tasks. (Id.)
Dr. Tedoff noted that plaintiff felt unable to maintain a regular schedule even on
medication. (Id.) Her decision making skills were improving, but had been
questionable in the past. (Id.) Plaintiff related adequately with others and had
dealt with work place stress in the past, but now her health could cause difficulty
dealing with stress. (Tr. 508.) Dr. Tedoff concluded that the results of the
examination were consistent with psychiatric and physical problems that “may
interfere” with plaintiff’s ability to function in the workplace on a daily basis. (Id.)
Dr. Tedoff considered plaintiff to have a poor prognosis for sustaining gainful
employment. (Id.)

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On May 14, 2012, Dr. Sharon Revan conducted a consultative internal
medicine examination of plaintiff at the request of SSA. (Tr. 509-11.) Dr. Revan
assessed diabetes, asthma, bipolar disease, and depression. (Tr. 511-12.) Dr. Revan
noted that plaintiff had numbness and spasm in her hands and feet. (Tr. 509.)
Plaintiff reported blurred vision and elevated liver function test results. (Id.)
Plaintiff acknowledged that she smoked daily; she acknowledged past drug use only
through 2011. (Tr. 510.) In Dr. Revan’s opinion, plaintiff had no limitations of the
upper extremities for fine or gross motor activity and no limitations of sitting or
standing. (Tr. 512.) Dr. Revan opined that plaintiff had a mild limitation of
walking and climbing stairs due to shortness of breath. (Id.)
Finally, on June 8, 2012, Dr. V. Reddy reviewed plaintiff’s file as a nonexamining consulting physician for the SSA. Dr. Reddy reviewed the record and
concluded that plaintiff could follow and understand simple directions and
instructions and perform simple tasks independently; that she had adequate skills
to perform simple tasks; and that she could relate adequately to others. (Tr. 494.)
Dr. Reddy noted that plaintiff had bipolar disorder and a long history of alcohol,
cocaine, and heroin use. (Id.) Dr. Reddy noted the mental status findings reported
by Dr. Tedoff, and that Dr. Naco reported that plaintiff’s condition was better “at
this time.” (Id.) Dr. Reddy noted Dr. Naco’s assessment precluding plaintiff from
even entry level work, but found it to be inconsistent with the doctor’s treatment
notes reflecting that plaintiff was cooperative, maintained good eye contact, had
normal psychomotor activity, and normal concentration. (Id.) Dr. Reddy opined

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that plaintiff’s attention and concentration skills were adequate for the demands of
the performance of simple tasks. (Id.)
3.

Plaintiff’s testimony before the ALJ

At the administrative hearing held on June 3, 2013, plaintiff testified that
she last worked in 2010, when she was terminated after passing out from
uncontrolled blood sugar levels. (Tr. 48.) Plaintiff described numbness in her
hands and sharp pains in her feet, which she attributed to uncontrolled diabetes.
(Tr. 49, 56.) Plaintiff estimated that she can only stand for 45 minutes and walk for
two blocks, after which she is tired and must “take a breather.” (Tr. 51-52, 54.)
Plaintiff testified that she no longer cuts herself, hears voices, or contemplates
suicide, but that she still has nightmares and hallucinates, seeing faces as often as
four days a week. (Tr. 59.) Plaintiff further testified that she had mood swings,
problems with forgetfulness, difficulty being around other people she does not know,
and difficulty concentrating most of the time. (Tr. 51, 61.) Plaintiff explained that
she forgets simple things such as her own phone number. (Tr. 61.) She also
testified that she had problems completing paperwork and cannot fill out forms by
herself. (Tr. 62.) In addition, plaintiff reported that she falls asleep at
inappropriate times during the day. (Tr. 57.)
II.

APPLICABLE LEGAL PRINCIPLES
A.

Judgment on the Pleadings

“After the pleadings are closed—but early enough not to delay trial—a party
may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “The same
standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss applies to Fed. R.
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Civ. P. 12(c) motions for judgment on the pleadings.” Bank of N.Y. v. First
Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citation omitted). Therefore,
“[t]o survive a Rule 12(c) motion, the complaint ‘must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.’” Id.
(quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).
B.

The Disability Standard

The Commissioner will find a claimant disabled under the Act if he or she
demonstrates an “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The claimant’s
impairment must be “of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.”
Id. § 423(d)(2)(A). The disability must be “demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” Id. § 423(d)(3).
The Commissioner uses a five-step process when making disability
determinations. See 20 C.F.R. §§ 404.1520, 416.920. The Second Circuit has
described the process as follows:
First, the Commissioner considers whether the claimant is currently
engaged in substantial gainful activity. Where the claimant is not, the
Commissioner next considers whether the claimant has a “severe
impairment” that significantly limits her 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 that is listed in [Appendix 1]. If the
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claimant has a listed impairment, the Commissioner will consider the
claimant 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 claimant does not have a
listed impairment, the fourth inquiry is whether, despite the
claimant’s severe impairment, she has the residual functional capacity
to perform her past work. Finally, if the claimant is unable to perform
her past work, the burden then shifts to the Commissioner to
determine whether there is other work which the claimant could
perform.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (citation and footnote omitted); see
also Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); DeChirico v. Callahan, 134
F.3d 1177, 1179-80 (2d Cir. 1998). The claimant bears the burden of proof in steps
one through four, while the Commissioner bears the burden in the final step.
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
C.

Review of the ALJ’s Judgment

The Commissioner and ALJ’s decisions are subject to limited judicial review.
The Court may only consider whether the ALJ applied the correct legal standard
and whether his or her findings of fact are supported by substantial evidence.
When these two conditions are met, the Commissioner’s decision is final. See 42
U.S.C. § 405(g); Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008); Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Rosa v. Callahan, 168 F.3d 72, 77 (2d
Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (“We set aside the
ALJ’s decision only where it is based upon legal error or is not supported by
substantial evidence.” (citation omitted)).
Substantial evidence means “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
14

conclusion.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks omitted). If the
Commissioner and ALJ’s findings as to any fact are supported by substantial
evidence, then those findings are conclusive. 42 U.S.C. § 405(g); Diaz v. Shalala, 59
F.3d 307, 312 (2d Cir. 1995).
While the Court must consider the record as a whole in making this
determination, it is not for this Court to decide de novo whether the plaintiff is
disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater,
104 F.3d 1432, 1433 (2d Cir. 1997); Veino, 312 F.3d at 586 (“Where the
Commissioner’s decision rests on adequate findings supported by evidence having
rational probative force, we will not substitute our judgment for that of the
Commissioner.”). The Court must uphold the Commissioner’s decision upon a
finding of substantial evidence, even when contrary evidence exists. See Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to
support either position, the determination is one to be made by the factfinder.”
(citation omitted)); see also DeChirico, 134 F.3d at 1182-83 (affirming an ALJ
decision where substantial evidence supported both sides).
Finally, it is the function of the Commissioner, not the Court, “to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the
claimant.” Aponte v. Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d
Cir. 1984) (quoting Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642
(2d Cir. 1983)) (internal quotation mark omitted); see also Gernavage v. Shalala,

15

882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995) (“Deference should be accorded the
ALJ’s [credibility] determination because he heard plaintiff’s testimony and
observed his demeanor.” (citations omitted)). An ALJ’s decision on credibility “must
contain specific reasons for the finding on credibility, supported by the evidence in
the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual’s
statements and the reasons for that weight.” Soc. Sec. Ruling 96–7p, 61 Fed. Reg.
34484.
D.

The Treating Physician Rule

“[T]he treating physician rule generally requires deference to the medical
opinion of a claimant’s treating physician,” although an ALJ need not afford
controlling weight to a treating physician’s opinion that is “not consistent with other
substantial evidence in the record, such as the opinions of other medical experts.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citations omitted); see also
Burgess, 537 F.3d at 128. An ALJ who does not accord controlling weight to the
medical opinion of a treating physician must consider various factors, including “(i)
the frequency of examination and the length, nature and extent of the treatment
relationship; (ii) the evidence in support of the treating physician’s opinion; (iii) the
consistency of the opinion with the record as a whole; [and] (iv) whether the opinion
is from a specialist.” Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2)).
After considering these factors, the ALJ must “comprehensively set forth reasons for
the weight assigned to a treating physician’s opinion.” Id. at 33.

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Although the ALJ will consider a treating source’s opinion as to whether a
claimant is disabled or able to work, the final responsibility for deciding those
issues is reserved to the Commissioner, and the treating source’s opinion on them is
not given “any special significance.” 20 C.F.R. § 416.927(d)(3); see also Soc. Sec.
Ruling 96-5p, 1996 WL 374183, at *3 (July 2, 1996); Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999). When a finding is reserved to the Commissioner, “the Social
Security Administration considers the data that physicians provide but draws its
own conclusions as to whether those data indicate disability. A treating physician’s
statement that the claimant is disabled cannot itself be determinative.” Snell, 177
F.3d at 133. It is the ALJ’s duty, as the trier of fact, to resolve conflicting medical
evidence. See Richardson, 402 U.S. at 399.
E.

The ALJ’s Duty to Develop the Record

Although “[t]he claimant has the general burden of proving that he or she has
a disability within the meaning of the Act,” “the ALJ generally has an affirmative
obligation to develop the administrative record.” Burgess, 537 F.3d at 128 (citations
and internal quotation marks omitted). SSA regulations require an ALJ to “inquire
fully into the matters at issue and . . . receive in evidence the testimony of witnesses
and any documents which are relevant and material to such matters.” Id. (quoting
20 C.F.R. § 702.338). “In light of the ALJ’s affirmative duty to develop the
administrative record, ‘an ALJ cannot reject a treating physician’s diagnosis
without first attempting to fill any clear gaps in the administrative record.’” Id. at
129 (citation omitted); see also Calzada v. Asture, 753 F. Supp. 2d 250, 277
(S.D.N.Y. 2010) (“If the ALJ is not able to fully credit a treating physician’s opinion
17

because the medical records from the physician are incomplete or do not contain
detailed support for the opinions expressed, the ALJ is obligated to request such
missing information from the physician.” (citing Perez, 77 F.3d at 47)).
III.

DISCUSSION
Plaintiff advances three arguments in support of her position that the ALJ

erred in finding that she was not disabled: (1) the ALJ failed to properly weight the
medical evidence; (2) the ALJ failed to properly evaluate plaintiff’s credibility; and
(3) the ALJ erred by relying on the medical-vocational guidelines. (See
Memorandum of Law in Support of Plaintiff’s Motion for Judgment on the
Pleadings (“Mem. in Supp.”), ECF No. 17, at 7-6.)
A.

The ALJ’s Decision

The ALJ evaluated plaintiff’s claim pursuant to the five-step sequential
evaluation process and concluded that plaintiff has not been under a disability
within the meaning of the Act since March 28, 2012, the date of plaintiff’s
application. At step one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since March 28, 2012 (the application date). (Tr. 29.) At
step two, he determined that plaintiff had the following severe impairments:
obesity, mood disorder, and anxiety disorder. Id. The ALJ determined at step three
that none of plaintiff’s impairments, nor any combination of those impairments, was
of a severity to meet or medically equal one of the listed impairments in Appendix 1
of the regulations.4 (Tr. 31-32.)

4

Plaintiff does not challenge the ALJ’s determinations at steps 1-3.

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At step four, the ALJ determined that plaintiff had the residual functional
capacity to perform “light work” as defined in the regulations, except that she is
limited to simple and unskilled jobs, particularly those with a Specific Vocational
Preparation (“SVP”) level of 1 or 2.5 (Tr. 32-36.) In making this finding, the ALJ
considered plaintiff’s symptoms, objective medical evidence and other evidence, as
well as opinion evidence. The ALJ concluded that plaintiff’s “statements concerning
the intensity, persistence and limiting effects of [her] symptoms [was] not entirely
credible.” Id. The ALJ also noted that his finding reflected “limited weight” given
to the opinions from treating board psychiatrist Dr. Naco; “little overall weight”
given to the opinions from Dr. Tedoff, who conducted a consultative psychiatric
assessment of plaintiff at the request of SSA; and “weight” given to the opinions
from State agency evaluator Dr. Reddy. (Tr. 32-36.) Based on plaintiff’s residual
functional capacity, the ALJ found that plaintiff was unable to perform any past
relevant work. (Tr. 36.)
At step five, considering plaintiff’s “age, education, work experience, and
residual functional capacity,” the ALJ found “that there are jobs that exist in
significant numbers in the national economy that [plaintiff] can perform.” (Tr. 37.)
The ALJ relied on the Medical-Vocational Guidelines (the “Grids”) as a framework
for his decision and did not utilize a vocational expert. (Tr. 37-38.)

SVP measures “[t]he amount of time required by a typical worker to: learn the techniques, acquire
the information, and develop the facility needed for average performance of a job.” 20 CFR 656.3.
An SVP level of 1 corresponds with “short demonstration only” and an SVP level of 2 corresponds
with “anything beyond short demonstration up to and including one month.” Id.
5

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B.

Application of the Treating Physician Rule

Plaintiff first claims that the ALJ failed to properly weigh the medical
evidence. (Mem. in Supp. at 7.) Specifically, plaintiff claims that the ALJ failed to
apply the treating physician rule in giving “limited weight” to Dr. Naco. For the
reasons discussed below, the Court agrees.
In primary support of his decision to give Dr. Naco’s opinions limited weight,
the ALJ noted that he found Dr. Naco’s opinions inconsistent with “corresponding
treatment notes.” (Tr. 34.) However, the ALJ did not identify sufficient
inconsistencies to support his conclusion. The main “inconsistency” described by
the ALJ was that in a March 2, 2013 report Dr. Naco stated that plaintiff had a
GAF score of 48 while treatment notes from the same day indicate that plaintiff had
a GAF score of 58.6 Id. This appears to be an obvious typographical error, as
plaintiff notes (and defendant does not otherwise argue). (See Tr. 558, 618.) In all
events, the Second Circuit has emphasized that “an ALJ cannot reject a treating
physician’s diagnosis without first attempting to fill any clear gaps in the
administrative record.” Rosa, 168 F.3d 7at 79. Thus, before he could rely on the
“inconsistent GAF” scores to discount Dr. Naco’s opinions in this case, the ALJ was
required to develop the record further and determine whether the inconsistency was
merely a typographical error.

6

The Court notes that certain facts either discussed by the ALJ or the Commissioner on this motion do not constitute
sufficient inconsistencies, such as the fact that plaintiff was able to attend church, was well groomed, maintained eye
contact, and had normal speech.

20

The ALJ also noted that Dr. Naco saw plaintiff relatively infrequently and
prescribed only “conservative care.” (Tr. 35.) The Second Circuit has noted that
“the opinion of the treating physician [is not] to be discounted merely because he
has recommended a conservative treatment regimen,” and the “ALJ and the judge
may not ‘impose[ ] their [respective] notion[s] that the severity of a physical
impairment directly correlates with the intrusiveness of the medical treatment
ordered.’” Burgess, 537 F.3d at 129 (alterations in original) (quoting Shaw v.
Chater, 221 F.3d 126, 134-35 (2d Cir. 2000)). Here, the ALJ did not point to
sufficient evidence beyond what he deemed “conservative care” to discount the
opinion of Dr. Naco.
In determining that plaintiff was able to perform simple and unskilled jobs
from a mental standpoint, the ALJ gave “weight” to State agency evaluator Dr.
Reddy. (Tr. 35.) As previously noted, Dr. Reddy did not examine plaintiff but
reviewed her record and concluded that plaintiff could follow and understand simple
directions and instructions and perform simple tasks independently; that she had
adequate skills to perform simple tasks; and that she could relate adequately to
others. (Tr. 494.) Dr. Reddy noted Dr. Naco’s assessment precluding plaintiff from
even entry level work, but found it to be inconsistent with the doctor’s treatment
notes reflecting that plaintiff was cooperative, maintained good eye contact, had
normal psychomotor activity, and normal concentration. (Id.) Dr. Reddy opined
that plaintiff’s attention and concentration skills were adequate for the demands of
the performance of simple tasks. (Id.)

21

The ALJ’s reliance in this case on the opinions of Dr. Reddy, a consultative
non-examining psychiatrist, was error. The record and findings by treating
physician Dr. Naco contradict those of Dr. Reddy. As discussed above, Dr. Naco
opined that plaintiff was markedly limited – defined as being effectively precluded
from performing the activities in a meaningful manner – in her ability to perform
activities within a schedule, maintain regular attendance, and be punctual with
customary tolerance; work with or near others without being distracted; set realistic
foals or make plans independently; and complete a workweek without interruption
from psychologically based symptoms. (Tr. 276-279.) Dr. Naco found that plaintiff
had limited understanding and memory due to poor focus and limited sustained
concentration and persistence, social interaction and adaptation due to mood
swings, racing thoughts and irritability. (Tr. 518-19, duplicated at Tr. 609-12, 615.)
Dr. Naco explained that her opinions were based upon her own observations that
plaintiff was “quite hyper” and needed redirection and had “trouble focusing” and
was “easily irritable, nervous, and impatient” during severe mood swings, causing
problems with focus and memory. (Tr. 497.) She also stated that plaintiff could be
quite sensitive to minor criticisms “and has had issues with staff members.” (Id.)
“While the ALJ had cast doubt upon the findings of [treating physician Dr. Naco],
as discussed above, he generally accepted [Dr. Reddy’s] findings without explaining
why they were more valid. This suggests that the ALJ selectively relied on evidence
that weighed against a finding of a disability. This is improper—an ALJ may not
‘pick and choose evidence which favors a finding that the claimant is not disabled.’”

22

Rodriguez v. Astrue, No. 07CIV.534 WHPMHD, 2009 WL 637154, at *25 (S.D.N.Y.
Mar. 9, 2009) (citation omitted). The regulations and case law concerning the
treating physician rule emphasize that a doctor who personally treats a claimant,
and in particular a doctor who has a long-term treating relationship with the
claimant like Dr. Naco, is likely to have a better understanding of her condition
than a non-examining source.
Defendant correctly notes that the opinions of non-examining sources can be
given great weight where they are supported by medical evidence in the record.
Here, however, Dr. Reddy’s opinion, adopted by the ALJ, is not supported by
medical evidence in the record. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(f); see also
Hidalgo v. Bowen, 822 F.2d 294, 297 (2d Cir. 1987) (“A corollary to the treating
physician rule is that the opinion of a non-examining doctor by itself cannot
constitute the contrary substantial evidence required to override the treating
physician’s diagnosis.”)
Even Dr. Tedoff, who conducted a consultative psychiatric assessment of
plaintiff at the request of the SSA, opined that plaintiff had a poor prognosis for
maintaining employment. (Tr. 508.) The ALJ gave this opinion “little overall
weight” because he claimed that Dr. Tedoff “was not privy to the other evidence of
record in conducting his examination.” However, the only piece of evidence
discussed by the ALJ is a notation by Dr. Naco that plaintiff had been sober for the
past six weeks; which the ALJ described as inconsistent with plaintiff’s statement
to Dr. Tedoff that she had had not used drugs for a year. (Tr. 35; see Tr. 506.) The

23

ALJ did not explain how this might impact Dr. Tedoff’s conclusion.7 Again, before
he could discount Dr. Tedoff’s conclusions, the ALJ had an obligation to develop the
record by, for example, providing Dr. Tedoff with the record evidence he was
allegedly not privy to.
In short, the ALJ’s failure to apply the correct legal standard in considering
Dr. Naco’s medical opinion is grounds for reversal. See Pollard v. Halter, 377 F.3d
183, 189 (2d Cir. 2004). The Court finds it worth mentioning that “[g]enuine
conflicts in the medical evidence are for the Commissioner to resolve.” Burgess, 537
F.3d at 128. However, the ALJ did not identify such conflicts in reaching his
conclusion.
C.

Assessment of Plaintiff’s Credibility

Plaintiff also contends that the ALJ failed to properly evaluate her testimony.
(Mem. in Supp. at 12-15.) The Court agrees.
It is the function of the Commissioner, not the Court, “to resolve evidentiary
conflicts and to appraise the credibility of witnesses, including the claimant.”
Aponte, 728 F.2d at 591 (quoting Carroll, 705 F.2d at 642 (internal quotation marks
omitted)); see also Gernavage, 882 F. Supp. at 1419 n.6. Although the ALJ is free to
accept or reject the testimony of any witness, a “finding that the witness is not
credible must nevertheless be set forth with sufficient specificity to permit
intelligible plenary review of the record.” Williams v. Bowen, 859 F.2d 255, 261 (2d
Cir. 1988) (citing Carroll, 705 F.2d at 643). And if the ALJ finds that the claimant’s

Nor did the ALJ seek to further develop the record by providing additional evidence (or the record)
to Dr. Tedoff for further review.

7

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testimony is not consistent with the medical evidence in the record, he must still
weigh the credibility of the claimant’s testimony under a non-exhaustive list of
factors, which include: (1) plaintiff’s daily activities; (2) the location, duration,
frequency, and intensity of his 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; and,
(7) any other measures used to relieve pain or other symptoms. 20 C.F.R.
§ 404.1529(c)(3)(i)-(vii); see also Cichocki v. Astrue, 534 F. App’x 71, 76 (2d Cir.
2013).
The ALJ first described plaintiff’s testimony regarding the intensity,
persistence, and limiting effects of her alleged symptoms. (Tr. 32-33.) The ALJ
noted that plaintiff testified to numerous ailments including manic-depressive
disorder, bipolar disorder, schizophrenia, diabetes, asthma, and high blood
pressure. (Tr. 32.) The ALJ further noted that plaintiff testified that she stopped
working in 2010 after she was laid off; has learning problems; sees her psychologist
twice a month and sees a counselor weekly; continues to smoke cigarettes; and last
used cocaine about a year before the hearing. (Tr. 33.) The ALJ ultimately
concluded that plaintiff’s “statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible.” (Id.)

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The ALJ found that while plaintiff “alleges severe mental health issues, the
record indicates that her primary psychiatric problem is due to polysubstance
abuse.” (Id.) The ALJ noted that “the record shows no drug tests confirming that
she is currently sober,” and that “the record does not show [plaintiff] has been active
in drug treatment.” The ALJ thus found that “considering the evidence as a whole,
[he] is unable to rule out the potential effects of substance use as a catalyst or cause
of [plaintiff’s] alleged symptoms, e.g., troubles with focus, memory and mood.” (Id.)
The ALJ’s boilerplate assertion that plaintiff’s testimony was “not entirely
credible” is insufficient. The ALJ provided no support for his assertion that “the
record indicates that [plaintiff’s] primary psychiatric problem is due to
polysubstance abuse.” To the contrary, Dr. Naco reported that plaintiff’s use of
drugs and/or alcohol was a symptom of her condition or form of self-medication, and
that plaintiff’s disability was independent of any substance use. (Tr. 626.) The ALJ
cannot substitute his own views for actual medical evidence in the record. See
Balsamo, 142 F.3d at 81 (2d Cir. 1998). Here, plaintiff’s subjective testimony was
consistent with the objective medical facts and medical opinions in the record.
Furthermore, the ALJ failed to give a single reason for finding plaintiff’s
statements related to her physical limitations not credible.8
D.

Plaintiff’s Ability to Perform Substantial Gainful Activity

Lastly, plaintiff argues that the ALJ erred at step five of the sequential
analysis by relying on the medical-vocational guidelines. (Mem. in Supp. at 15.)

8

Defendant does not appear to contest this point.

26

Once the ALJ determined that plaintiff could not complete her past relevant work,
he was required, under step five, to determine whether there was work in the
national economy that plaintiff can do. Roma v. Astrue, 468 F. App’x 16, 20 (2d Cir.
2012); Bapp v. Bowen, 801 F .2d 601, 604 (2d Cir. 1986)). The Court agrees that the
ALJ failed to adequately sustain his burden at step five.
“If a claimant has nonexertional limitations that ‘significantly limit the range
of work permitted by his exertional limitations,’ the ALJ is required to consult with
a vocational expert.” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting
Bapp, 802 F.2d at 605. Importantly, the “mere existence of a nonexertional
impairment does not automatically . . . preclude reliance on the guidelines.” (Id.)
(ellipsis in original). “A nonexertional impairment ‘significantly limit[s]’ a
claimant’s range of work when it causes an ‘additional loss of work capacity beyond
a negligible one or, in other words, one that so narrows a claimant’s possible range
of work as to deprive him of a meaningful employment opportunity.’” (Id.) (quoting
Bapp, 802 F.2d at 605-06 (2d Cir. 1986)).
Here, the ALJ acknowledged that plaintiff had “moderate limitations of her
ability to maintain concentration, persistent and pace” and that plaintiff’s mental
impairments were “severe” yet found that “there is no evidence that [plaintiff’s]
impairments so drastically limit these abilities as to preclude gainful employment
at the light exertional level.” (Tr. 37.) For the reasons described above, this finding
is not supported by substantial evidence. The record clearly demonstrates –
including treatment notes and the opinions of Dr. Naco and Dr. Tedoff – that

27

plaintiff’s impairments significant limit her capacity to work. If the ALJ did not
wish to call a vocational expert, he was required to “submit other evidence of jobs
that an individual with [plaintiff’s] limitations could perform, or to explain fully
why plaintiff’s limitations are not significant enough to warrant the opinion of such
expert.” Correale-Englehart v. Astrue, 687 F. Supp. 2d 396, 442 (S.D.N.Y. 2010).
The ALJ erred by failing to take any of these measures.
E.

Remedy

The Social Security Act directs that “[t]he court shall have power to enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” 42 U.S.C. § 405. The Second Circuit has
explained that “where the administrative record contains gaps, remand to the
Commissioner for further development of the evidence is appropriate.” Quinion v.
Apfel, 8 F. App’x 53, 54 (2d Cir. 2001); see Rosa, 168 F.3d at 82-83. That is, when
“further findings would so plainly help to assure the proper disposition of [the]
claim, we believe that remand is particularly appropriate.” Id. (alteration in
original). On the other hand, “where this Court has had no apparent basis to
conclude that a more complete record might support the Commissioner’s decision,
we have opted simply to remand for a calculation of benefits.” Michaels v. Colvin,
621 F. App’x 35, 38 (2d Cir. 2015) (quoting Rosa, 168 F.3d at 83).
The Court has noted several gaps in the administrative record that were not
properly developed by the ALJ, including, inter alia, the alleged “inconsistency” in
plaintiff’s GAF score reported by Dr. Naco. The Court thus remands this case to the
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ALJ for further proceedings consistent with this Opinion & Order. Upon remand,
the ALJ must appropriately apply the legal principles as described above.
IV.

CONCLUSION
For the aforementioned reasons, plaintiff’s motion is GRANTED, and

defendant’s motion is DENIED. This case is remanded for further proceedings
consistent with this Opinion & Order. The Clerk of Court is directed to terminate
the motions at ECF Nos. 16 and 22 and to terminate this action.
SO ORDERED.
Dated:

New York, New York
April 3, 2017

______________________________________
KATHERINE B. FORREST
United States District Judge

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