Burgess v. Colvin

Filing 20

OPINION AND ORDER re: 14 MOTION for Judgment on the Pleadings filed by Warren Clyde Burgess, 16 CROSS MOTION for Judgment on the Pleadings filed by Carolyn W. Colvin. For the foregoing reasons, Burgess's motion is G RANTED, the Commissioner's motion is DENIED, and the case is REMANDED pursuant to 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion and Order. Having resolved Doc. Nos. 14 and 16, the Clerk of Court is directed to terminate this action. (Signed by Magistrate Judge Ronald L. Ellis on 12/19/2016) (cla)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WARREN CLYDE BURGESS,
Plaintiff,

OPINION AND ORDER

-against-

15-CV-9585 (RLE)

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

.

~~~~~~~~~~~~~~~~~~~-91
HONORABLE RONALD L. ELLIS, U.S.M.J.:
I.

INTRODUCTION

Plaintiff Warren Clyde Burgess ("Burgess") commenced this action under the Social
Security Act (the "Act"), 42 U.S.C. § 405(g), challenging a final decision of the Commissioner
of Social Security ("Commissioner") denying his claim for Social Security benefits. On January
19, 2016, and pursuant to 28 U.S.C. § 636(c), both Parties consented to the jurisdiction of the
undersigned. (Doc. No. 9.)
On May 27, 2016, Burgess moved for judgment on the pleadings, asking the Court to
reverse the decision of the Commissioner and remand the case for a calculation and award of
benefits or, alternatively, to remand the case for further proceedings. (Doc. No. 14.) Burgess
argues that (1) the Administrative Law Judge ("ALJ'') failed to weigh the medical evidence in
accordance with the treating physician rule; and (2) the ALJ failed to properly evaluate Burgess's
credibility. (Mem. of Law in Supp. of Pl.'s Mot. for J. on the Pleadings ("Pl. Mem.") at 7-15.)
On June 27, 2016, the Commissioner filed a cross-motion for judgment on the pleadings, asking
the Court to affirm her final decision. (Doc. No. 16.) The Commissioner argues that (1) the ALJ
properly weighed the opinion evidence; (2) the ALJ' s credibility finding was supported by
substantial evidence; and (3) the ALJ's residual functional capacity finding was supported by

substantial evidence. (Mem. of Law. in Supp. ofDef.'s Mot. for J. on the Pleadings ("Def.
Mem.") at 15-25.) For the reasons that follow,

Burgess's motion is GRANTED, the

Commissioner's cross-motion is DENIED, and the case is REMANDED for further
administrative proceedings.
II.

A.

BACKGROUND

Procedural History

Burgess applied for Supplemental Security Income Benefits ("SSI") on June 23, 2011,
alleging disability beginning July 26, 2010. (Transcript of Administrative Hearing ("Tr.") at 10,
238.) The application was initially denied on September 21, 2011. (Id. at 105-10.) On October
6, 2011, Burgess submitted a request for a hearing. (Id. at 111-12.) A hearing was held before
ALJ Selwyn S. C. Walters on May 8, 2012. (Id. at 56-79.) Burgess appeared prose. (Id. at 58.)
On August 17, 2012, ALJ Walters issued a decision denying Burgess'ss SSI claim on the
grounds that Burgess was not disabled within the meaning of the Act. (Id. at 82-98.)
On October 12, 2012, Burgess submitted a request for review of the ALJ's decision to the
Appeals Council. (Id. at 145.) The Appeals Council granted the appeal on November 8, 2013,
under the substantial evidence and new and material evidence provisions of the Act. (Id. at 101.)
The Appeals Council found that there was no vocational evidence in the record regarding the
extent to which the assessed non-exertional limitations erode the occupational base for light
exertion work, and new and material evidence was submitted that indicates Burgess's
impairments may be more limiting than found in the decision. (Id.) The Appeals Council
vacated the decision and remanded the case to an ALJ. (Id. at 102.) On April 2, 2014, a video
hearing was held before ALJ Sheena Barr. (Id. at 10.) Burgess was represented by Ryan
Peterson, an attorney. (Id.) Victor G. Alberigi, an impartial vocational expert, also appeared at

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the hearing. (Id) On June 27, 2014, ALJ Barr issued a decision denying Burgess's SSI claim on
the grounds that Burgess has not been disabled within the meaning of the Act since June 23,
2011, the date the application was filed. (Id. at 10-20.) Burgess appealed the decision on July
25, 2014. (Id. at 34.) On October 21, 2015, the Appeals Council denied Burgess's request for
review and the ALJ's decision became the Commissioner's final decision. (Id. at 1-3.) Burgess
filed this Complaint on December 8, 2015. (Doc. No. 1.)
B.

The ALJ Hearing
1.

Administrative Hearing Testimony and Other Sworn Statements

Burgess testified at hearings before ALJ Walters and ALJ Barr. He was born on March
3, 1982, in Harlem, New York. (Tr. at 62, 75.) He testified that he is five feet and ten inches in
height and weighs two hundred and fifty pounds. (Id.) When ALJ Walters asked about any
recent changes to his body, he testified that in the two years before the hearing, he had gained
approximately twenty-five to thirty pounds because his medication makes him hungry. (Id.) He
is single and has four children who do not live with him. (Id.) He has an eleventh grade
education. (Id. at 75.)
Burgess testified that he stays with different family members. At the time of his hearing
with ALJ Walters, he was staying at the home of his children's mother. (Id. at 63-64.) At the
time of his hearing with ALJ Barr, he had been staying at his cousin's house for approximately a
year. (Id. at 42.) At his cousin's house, he helps take out the garbage and babysit his cousin's
daughter. (Id. at 43.) He spends most of his time watching television. (Id. at 44.) Although he
has a driver's license, he testified that he does not drive "at all." (Id. at 65.) When asked if he
attended social functions, he testified that he tries but suffers from migraines. (Id. at 65.) He
visits family "sometimes," because his family lives elsewhere and it is "hard to travel." (Id. at

3

66.) He testified that he does not go out with his friends because "when [he is] around ... they
can't do nothing [sic]." (Id. at 65.) He testified that he does not have any hobbies and does not
smoke, drink, or do drugs. (Id. at 67.) He was previously incarcerated for four years for selling
drugs and gun possession. (Id. at 67.)
Burgess calls his four children every day. (Id. at 43.) He testified that it was "hard to see
them" because "it makes [his] anxiety and depression come on." (Id.) He feels like he "can't do
anything for them" and it "hurts [his] feelings." (Id.) He is "scared of being ... somewhere with
just [them]" because he is afraid of experiencing an anxiety attack alone. (Id.)
Burgess testified that he last worked in 2008. (Id. at 38.) From 2006, he was a driller's
helper in construction work and did heavy labor work, including lifting pipes and carrying boxes.
(Id. at 38-39.) He performed soil sampling and rock testing, and typically had to lift sixty

pounds. (Id. at 46-47.) He worked for a catering service for a few months in 2007. (Id. at 49.)
He supplied food to schools for about 2,000 people, and had to lift more than twenty pounds.
(Id. at 49-50.) He also worked as a messenger for a delivery service between 2005 and 2006,

where he drove the company van. (Id. at 48, 51.) He also had a job repairing fire extinguishers
from 2005 to 2006. (Id. at 76.)
Burgess testified that his illness started after he attended a party where someone slipped
him drugs. (Id. at 39.) He suffered a stroke in his face and was diagnosed with Bell's Palsy. (Id.
at 40.) Since then, he has been having panic attacks, chest pains, migraines, anxiety and
depression. (Id. at 39.) The incident occurred in 2006 but the symptoms "just started coming
back[ ... ] harder and harder" and he has "been fighting it most of the time." (Id. at 69-70.) He
has panic attacks "everyday" where he "feel[s] like [he's] going to die," which cause headaches
and sometimes cause him to blackout. (Id. at 40.) There are no identifiable triggers. (Id.) He

4

suffers from migraine headaches "all the time" because his nerves have not fully recovered from
Bell's Palsy. (Id 40-41, 68, 74.) The headaches can get so

intense that he has "blurry vision."

(Id at 41.) When he walks outside, he feels like he is "dreaming" and everyone is "lighting up,"

which "hurts [his] eyes" and makes him feel "scared." (Id. at 44.) He also "get[s] dizzy fast."
(Id.) He testified that he tries to leave the house "at nighttime where there [are] no lights," and

has to "stay focused." (Id) Although he "can pay attention ... for a little while," "everything just
gets boring" and "it makes [him] depressed." (Id.) He testified that he can travel alone
"sometimes" but the last time was "a long time ago." (Id. at 64.) When he is on a train with
many people, he gets "nervous" and his "heart starts racing." (Id.)
Burgess testified that when he "started trying to work" in 2011, he would experience
"panic attacks." (Id. at 70.) He did not specify what work he was doing, but he lost that job
because when he lifts heavy things, he "start[ s] feeling like [he is] blacking out." (Id.) During
the hearing before ALJ Walter, he testified that his hands were "sweaty" and his heart was
"racing" because he was "nervous." (Id. at 70.) He felt like he was "high" because "all of this
feels fake." (Id. at 70-71.) He testified that he could not return to work because of his
"stamina." (Id. at 76.) He could not walk for more than two or three blocks without getting
dizzy or drowsy. (Id.)
Burgess sees a psychiatrist, Dr. Sharma. (Id. at 41-42.) At the time of his hearing before
ALJ Barr, he had been seeing Dr. Sharma once a month for a year. (Id.) At his hearing before
ALJ Walters, Burgess testified that he was seeing Dr. Fink, a psychiatrist, and Carol Newmark,
whom he identified as a physical therapist at Montefiore Medical Center. (Id. at 60.) He has
also made several visits to the emergency room at Montefiore. (Id. at 61.)

5

Burgess takes Lexapro and Alprazolam for his migraines. (Id. at 41, 71-72.) He also
takes Ibuprofen, which "[takes] the headache away a little bit/' but not "fully." (Id

at 74.) The

medication causes him to become drowsy. (Id. at 41.) He also takes medication for anxiety,
depression, panic attacks, and insomnia. (Id.) When ALJ Walters asked about the effectiveness
of the medication, Burgess testified that he has days when he is "doing good" and "doing bad
again," and "there's really no medication" that works because it is "really mental." (Id.)
Burgess testified that the medicine he took gave him side effects, including "a drip in the throat"
and "nausea." (Id. at 45.) The medication takes "a whole half-an-hour to a[n] hour just to let it
settle." (Id. at 44.) He has to "lay down with all the lights off" until it has "kicked in" because
of the nausea. (Id. at 45.) The medicine makes him "high all day." (Id.) Burgess also works on
"breathing exercises" and "relaxation exercises." (Id. at 72.)
2.

Medical Evidence and Opinions
a.

Mental Impairment Evidence
(1)

Parvesh Sharma, M.D., Treating Psychiatrist

Dr. Parvesh Sharma is a psychiatrist with University Behavioral Associates, under
Montefiore Behavioral Care. (Tr. at 520.) He has been treating Burgess since December 4,
2012. (Id. at 455, 518.) The record contains copies of prescriptions from Dr. Sharma and notes
from December 27, 2012, to February 20, 2014. (Id. at 449, 452, 464-66, 525-29.) In his intake
assessment, Burgess complained that he "feel[s] very anxious all the time." (Id. at 520.) Dr.
Sharma recorded symptoms of "anxiety," "panic attacks," and "paranoia." (Id.) The mental
status evaluation recorded a "cooperative" attitude, "anxious" mood, "coherent" and "ageappropriate" speech and comprehension, and an "intact" thought process with no hallucinations
or delusions. (Id. at 522-23.) Dr. Sharma's biopsychosocial formulation was that Burgess

6

suffered from panic disorder with symptoms of panic attacks. (Id. at 523.) In his treatment plan,
Dr. Sharma identified problems of "panic disorder," "poor sleep,"

and "low self-esteem." (Id at

524.) He estimated that it would take about nine to twelve months to achieve the treatment
goals. (Id.)
In a psychiatric questionnaire completed on December 27, 2012, Dr. Sharma diagnosed
Burgess with panic disorder and a risk of psychiatric disorder. (Id. at 455.) Using the American
Psychiatric Association's multi-axial system, Dr. Sharma diagnosed Burgess with panic disorder
on Axis I, deferred diagnosis on Axis II, and assigned a GAF score of 56.

1

(Id.) The prognosis

given "depends" on whether he is "compliant" with treatment. (Id.) Dr. Sharma noted that
Burgess suffered from "sleep disturbance, mood disturbance, emotional liability, elusions,
recurrent panic attacks, difficulty thinking or concentrating, persistent irrational fears, and
generalized persistent anxiety." (Id. at 456.) Dr. Sharma opined that Burgess faces mild
limitations in his ability to understand and remember one or two step instructions, to carry those
instructions out, to sustain ordinary routine without supervision, to interact appropriately with the
general public, and to maintain socially appropriate behavior. (Id. at 458-460.) He opined that
Burgess faces moderate limitations in his ability to remember locations and work-like
procedures, carry out detailed instructions, work in coordination with or proximity to others,
make simple work decisions, ask simple questions, accept instructions, and get along with co1

The American Psychiatric Association's multi-axial system assesses an individual's mental and physical condition,
with each of five axes describing a different class of information. See AMERICAN PSYCHIATRIC ASSOCIATION,
DIAGNOSTIC AND ST ATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 2000) ("DSM-IV-TR"). Axis I refers to
clinical disorders; Axis II refers to personality disorders; Axis III refers to general medical conditions; Axis IV
refers to psychosocial and environmental problems; and Axis V refers to the individual's global assessment of
functioning ("GAF"). DSM-IV-TR at 27-37.GAF is a numeric scale ranging from 0 through 100. A GAF score in
the range of 4 I to 50 signifies "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep
a job)." Id. at 34. A GAF score in the range of 51 to 60 signifies "moderate 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)." Id. The multi-axial system has since been replaced by a more
simplified, nonaxial approach in the DSM-5. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS (5th ed. 2013).

7

workers. (Id.) Finally, he opined that Burgess faces marked limitations in the ability to

understand and remember detailed instructions, to maintain attention for extended periods, to
perform activities within a schedule, to complete a normal workweek without interruptions, to
respond appropriately to changes in the work setting, to travel to unfamiliar places, and to set
realistic goals and make independent plans. (Id.) Dr. Sharma noted that Burgess experienced
episodes of deterioration or decompensation. (Id. at 460.) Dr. Sharma opined that Burgess was
incapable of even low stress work. (Id. at 461.) He also opined that Burgess is likely to be
absent from work for more than three times a month as a result of his impairment. (Id. at 462.)
Between December 27, 2012, and February 20, 2014, Burgess appears to have missed
two appointments in February 2013, three appointments in May 2013, and one appointment in
June 2013. (Id. at 526, 528.) He did not attend any appointments from June 2013 to January
2014 because "he did not have any panic attacks." (Id. at 529.) The mental status examinations
during appointments record "fair" attention and concentration, "logical" thought process, and
"fair" memory. (Id. at 525-29.) They regularly record a "constricted" affect. (Id.)

(2)

Rebecca Fink, M.D., Treating Psychiatrist

Dr. Rebecca Fink is a psychiatrist with Montefiore Medical Center. The record reflects
visits from February 23, 2011, to February 22, 2012. (Tr. at 548.) In a treatment plan dated
November 16, 2011, Burgess is diagnosed with a GAF score of 60. (Id. at 553.) In a report from
December 29, 2011, his mental status examination is normal except for a "depressed" mood. (Id.
at 549.) Dr. Fink notes that Burgess is "inconsistent" in adhering to medication. (Id.) She
encouraged "daily compliance" in taking medication "for maximal therapeutic effect." (Id.) In
another report dated February 17, 2012, Burgess's problems are listed as "panic attack" and
being "unemployed," and he was given a GAF score of 62. (Id. at 551.)

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(3)

Carole Newmark, L.C.S.W.

Carole Newmark is a social worker at Montcfiore Medical Center. (Tr. at 377.) In a
letter dated January 31, 2011, she wrote that she has been treating Burgess biweekly for "Panic
Disorder without Agoraphobia" since August 16, 2010. (Id) His panic attacks began
approximately two years ago and have been "a deterrent to his working in construction." (Id)
The report notes that Burgess is taking Lexapro and Alprazolam for depression and anxiety, as
diagnosed by the psychiatrist, Dr. Yel. (Id) In a letter signed by Dr. Zinaida Yel dated January
19, 2011, it is noted that Burgess has been in treatment at Montefiore since August 16, 2010, for
panic disorder. (Id at 376.)
In a progress note from September 20, 2011, Newmark noted that Burgess complained
that he had anxiety "all the time." (Id at 4 76.) He complained of increased lethargy and feeling
"tense, dizzy [and] headachy [sic]." (Id) He also complained about his medication because he
"feels they're not working." (Id) The mental status examination recorded a mood that was
"irritable" and "anxious, but noted that Burgess was adhering to his medication. (Id) Newmark
recommended that Burgess continue with medication and see his primary care physician. (Id)
She also wrote that he should "[continue] to seek employment." (Id.) In another progress note
dated October 19, 2011, Newmark noted that Burgess complained that he is "not doing good."
(Id. at 480.) The mental status examination reflects that his mood was "depressed" and

"irritable." (Id.) It noted that Burgess was adhering to medication, and again recommended that
he continue to take medication and to seek employment or go back to school. (Id.) In a progress
note from November 4, 2011, Newmark noted that Burgess reported having anxiety attacks. (Id.
at 491). Burgess also reported being "afraid to work" because he was afraid of "becoming dizzy
and ill." (Id.) The mental status exam reflected a mood that was "irritable" and "anxious." The

9

plan was to continue to "seek school to learn electronics." (Id.) In a progress note from

November 17, 2011, Newmark wrote that Burgess reports that he is "tired.'' (Id. at 492.)
Burgess reported that he has been able to "ride out the anxiety attacks" and is "making good
progress." (Id.) The plan recommended that he continues to go forward with electronics
training. (Id.) In a progress note dated December 29, 2011, Burgess reported that he is "feeling
a little better." (Id. at 493.) He reported that he had "a few anxiety attacks," but was "able to
work through the anxiety." (Id.)
Newmark also wrote another letter dated November 17, 2011, confirming that Burgess is
still a patient. (Id. at 432.) She wrote that "at this time, [Burgess] is unable to work due to his
mental illness." (Id.) She noted that Burgess "is progressing in treatment" and projects that "he
may be able to return to working anywhere from 6 to 12 months." (Id.)

(4)

Jaime F. Franco, M.A., L.C.S.W.

Jaime Franco is a Master's Level Psychologist and Licensed Clinical Social Worker. (Tr.
at 433.) In a letter dated July 20, 2012, and addressed to Bronx Family Court, Franco notes that
Burgess has been a client since June 22, 2012. (Id.) He notes that Burgess was experiencing
"multiple symptoms of acute anxiety" and "accompany depression," which "seriously affect his
overall functioning and greatly compromise his ability to work at present. (Id.) Franco opined
that "given the severity of his symptoms, Mr. Burgess's condition will probably last for at least a
few months." (Id.)

(5)

Montefiore Hospital

The record shows that Burgess made numerous visits to the emergency room in
Montefiore from December 6, 2009, to June 19, 2012. Burgess was admitted to the Montefiore
Emergency Department on December 6, 2009, and discharged on the same day. (Tr. at 336.) He

10

complained of ear pain and headache. (Id. at 336.) Dr. Gerald Brody noted "right ear pain,

inability to move right side of face normally, right facial numbness and decreased taste right side
of tongue with constant frontal headache," but the physical examination was otherwise normal.
(Id. at 337-38.) A CT scan revealed "ventricles somewhat dilated for age." (Id. at 337.) He was

diagnosed with Bell's Palsy and referred to a neurology specialist. (Id.)
Burgess was admitted again on July 24, 2010, and discharged on July 26, 2010. (Id. at
342.) He was admitted with "chest pain of [one] day duration, palpitations, tingling sensation in
chest." (Id.) He was placed under security watch in the hospital. (Id. at 344.) He reported
"feeling anxious for the last [three] days" and that he "feels high although he didn't do any
drugs." (Id. at 345.) He also reported that "he feels dizzy at times, and he feels his heart beat
fast." (Id.) He was diagnosed with panic disorder without agoraphobia. (Id. at 342.) Burgess
was evaluated by a psychiatrist and prescribed psychiatric medication. (Id.) Burgess told the
physician that "the attacks [have] been getting longer and more intense." The psychiatrist's
assessment recorded anxiety, leukocytosis, and anemia. (Id. at 356-358.) Burgess also
underwent an internal medicine check that recorded that the "physical exam is unremarkable."
(Id. at 358.) A radiology exam showed "no evidence of acute cardiopulmonary disease" and was

"unremarkable." (Id. at 369.)
Burgess was also admitted on August 18, 2010. (Id. at 439.) He was diagnosed with
"headache," "panic attack," and "anxiety." (Id.) The doctors prescribed regular-strength Tylenol
for his headaches. (Id.)
Burgess was admitted again on February 22, 2011. (Id. at 378.) He was diagnosed with
"Headache, Type Unknown," and "Anxiety State (Unspecified)." (Id.) The records noted that
"all of the tests performed today were normal." (Id. at 379.)

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Burgess was also admitted on October 3, 2011, and discharged the same day. (Id at

417,) He complained of chest pain, headache, and dizziness. (Id.) He was sent for a chest Xray, an EKG, and blood work, which revealed no abnormalities. (Id at 424.)
Burgess was admitted again on May 29, 2012, with complaints of dizziness and chest
tightness. (Id at 497.) He reported feeling like his abdomen and chest were "on fire." (Id at
498.) His physical examinations were normal. (Id at 499-500.) The attending doctors recorded
a likely "panic attack" or "heat exhaustion." (Id)
On June 19, 2012, Burgess visited Montefiore's Fordham Family Practice with
complaints of acute headaches. (Id. at 538.) He complained of pain of ten on a scale of one to
ten. (Id.) Dr. Uche Akwuba requested an MRI and on August 2, 2012, Burgess was sent for an
MRI of his brain that showed no abnormalities. (Id at 534-36.)
(6)

Herb Meadow, M.D., Consultative Psychiatrist

Dr. Herb Meadow is a consultative psychiatrist with Industrial Medicine Associates. He
examined Burgess on August 10, 2011. (Tr. at 385.) During the examination, Burgess told Dr.
Meadow that he has difficulty falling asleep. (Id.) He testified that he has a poor appetite and
had lost thirty pounds in the past year. (Id.) Dr. Meadow identified symptoms of depression,
"dysphoric moods, irritability, low energy, diminished self-esteem, difficulty concentrating,
[and] being socially withdrawn." (Id.) The mental status examination showed that Burgess had
a "cooperative" demeanor and his manner ofrelating was "adequate." (Id. at 386.) His
appearance, speech, thought process, and other indicators were normal. (Id) Dr. Meadow noted
that his mood was "depressed" and "anxious," and that his cognitive functioning was "average"
with the "general fund of information somewhat limited." (Id.)

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Dr. Meadow opined that Burgess "would have some difficulty dealing with stress" but
otherwise "would be able to handle

r... ] other tasks necessary for vocational functioning."

(Id.

at 387.) The results of the examination "appear to be consistent with psychiatric problems," but
the problems do not "appear to be significant enough to interfere with [Burgess's] ability to
function on a daily basis." (Id.) He diagnosed Burgess with "depressive disorder, NOS [not
otherwise specified]," "panic disorder without agoraphobia," and "generalized anxiety disorder,"
on Axis I; he deferred diagnosis on Axis II; and he identified "headaches," "dizziness," and
"hypertension" on Axis III. (Id.) He recommended that Burgess continue with psychiatric
treatment. (Id.)
(7)

David Mahony, Ph.D., Consultative Psychiatrist

Dr. David Mahony is a psychiatrist with Industrial Medicine Associates. He saw Burgess
on January 14, 2014, for a consultative examination. (Tr. at 472.) Dr. Mahony's notes show that
Burgess reported symptoms of depression. (Id. at 4 73-74.) He noted that Burgess has "cognitive
deficits secondary to symptoms of anxiety, including concentration difficulties and difficulty
learning new material." (Id. at 473.) The mental status examination was normal except that Dr.
Mahony noted that Burgess was "depressed." (Id.)
Dr. Mahony diagnosed Burgess with "generalized anxiety disorder" and "major
depressive disorder, mild." (Id. at 474.) Dr. Mahony opined that "there is no evidence of
limitation" in Burgess's ability to follow and understand simple directions and perform simple
tasks. (Id.) He opined that Burgess has "mild difficulties" maintaining attention and
concentration and maintaining a regular schedule, and "moderate limitation" in learning new
tasks, performing complex tasks, making appropriate decisions, relating to others, and dealing
with stress. (Id.) He traced these to "psychiatric problems" and opined that "these will interfere

13

with the claimant's ability to function on a daily basis." (Id.) He recommended that Burgess

continue to receive psychiatric treatment, but noted that Burgess "docs not appear to be
responding to psychiatric treatment." (Id. at 475.)
(8)

V. Reddy, M.D., Medical Consultant

Dr. V. Reddy is a medical consultant and did not examine Burgess in person. Dr. Reddy
opined that Burgess's allegations are "partially supported by medical evidence [o]n file." (Tr. at
411.) He concluded that Burgess "retains the ability to perform entry-level, unskilled work in a
low contact setting on a sustained basis." (Id.)
b.

Physical Impairment Evidence
(1)

Barbara Akresh, M.D., Consultative Physician

Dr. Barbara Akresh is a physician with Industrial Medicine Associates. Burgess was
referred to her by the Division of Disability Determination on August 10, 2011. (Tr. at 389.) Dr.
Akresh recorded that Burgess's chief complaint was the incident when he was drugged at a party.
(Id.) He also reported that "sometimes his vision becomes blurred, and he cannot walk very far."
(Id.) He also complained about migraine headaches everyday "for the past [one and a half]

years." (Id.) Dr. Akresh noted a history of Bell's palsy "which he states was attributed to
stress," but further noted that "this has resolved." (Id.) Dr. Akresh's physical examination was
normal. (Id. at 390.) Burgess's general appearance, gait, and station were normal and he had no
difficulties walking or moving around. (Id. at 391.) His head and face were normal. (Id.) His
neurologic examination was also normal with "no sensory deficit noted." (Id.)
Dr. Akresh's prognosis of Burgess was "good." (Id. at 392.) She opined that Burgess
has "mild limitations in his ability to be exposed to bright lights, secondary to the history of
chronic migraine headaches." (Id.)

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(2)

Benjamin Kropsky, M.D., Consultative Physician

Dr. Beniamin Krop5ky i8 a phy5ician with Indu5trial Medicine A85ociate5. Burge58 wa5
referred to him on December 5, 2013, by the Division of Disability Determination. (Tr. at 467.)
Dr. Kropsky notes that Burgess "has occasional asthmatic bronchitis, but does not have chronic
asthma." (Id.) He also notes that Burgess had Bell's Palsy in the past and has "right facial
paresis secondary to the Bell's palsy." (Id. at 468.)
Dr. Kropsky diagnosed Burgess with "depression, anxiety, and panic attacks," "migraine
headaches," "chest pains of uncertain etiology," "Bell's palsy with a right facial paresis," and
"recurrent episodes of asthmatic bronchitis." (Id. at 470.) His prognosis for the above diagnoses
is "fair," except for "depression, anxiety, and panic attacks," which is "fair to guarded." (Id.)
He opined that Burgess "should avoid dust smoke and other known respiratory irritants because
of the asthmatic bronchitis," and that Burgess is "limited in activities because of his
psychological problems" but "has no definite physical limitation." (Id.)

3.

Vocational Expert Testimony

Vocational expert Victor Alberigi testified at the hearing before ALJ Barr. (Tr. at 50.)
ALJ Barr suggested a hypothetical individual
of the same age, education, and work experience as the claimant, who is able to
perform work at the light exertional level, but would not be able to be exposed to
bright lights, heights, dangerous machinery or operate a motor vehicle, the
individual would also be limited to simple, routine, repetitive tasks, would be
limited to a low stress environment, meaning only occasional decision making
required, and occasional changes in the work setting, and a low contact
environment, with only occasional interaction with the public, coworkers, and
supervisors.
(Id. at 50-52.) The ALJ asked if that individual could do any of their past work, and Alberigi

opined that they would not be able to. (Id.) Alberigi testified that other work was available,
including that of a housekeeper, laundry sorter, and a clerical assistant. (Id. at 52-53.) The ALJ
15

then suggested an individual who, in addition to the above characteristics, would be off-task for

five percent of the workday. (Id. at 53.) Alberigi opined that the individual could 8till do the
jobs available, but not if he was off-task for ten percent of the workday. (Id.) The ALJ then
suggested an individual with the above characteristics who would be off-task for five percent of
the workday and would miss work at least one day a month due to symptoms. (Id.) Alberigi
opined that someone with accrued time off would still be able to work, but a new hire would not
be able to work. (Id. at 54.)
4.

The ALJ's Decision

On June 27, 2014, ALJ Barr issued a decision denying Burgess's application for SSL
(Tr. at 10.) The ALJ followed the required five-step sequential analysis to make her
determination of disability. 20 C.F.R. § 416.920(a). First, she established that Burgess has not
engaged in substantial gainful activity since June 23, 2011, the date of application. (Id. at 12.)
Second, she found that Burgess had severe impairments of anxiety, panic attacks, mood disorder,
and headaches. (Id.) She noted that Burgess has a history of Bell's Palsy but there is no
indication that it has caused significant limitations in his ability to work, and therefore it is not
severe. (Id.) Third, she found that Burgess does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1, and is not presumptively disabled. (Id. at 12-14.)
At the fourth step of the analysis, ALJ Barr concluded that Burgess has the residual
functional capacity
to perform light work as defined in 20 C.F.R. § 416.967(b) except that he cannot
be exposed to bright lights, heights, dangerous machinery, or operate a motor
vehicle. He is also limited to simple, routine, repetitive tasks, in a low stress
environment, meaning only occasional decision making required and occasional
changes in the work setting, and a low contact setting, meaning occasional

16

interaction with the general public, coworkers, and supervisors; and he would be
off task five percent of the workday due to symptoms from impairments.
(Id. at 14.) ALJ Barr determined that Burgess's medically determinable impairments could

reasonably be expected to cause the alleged symptoms but that his "statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible." (Id at
15.) Specifically, ALJ Barr noted that Burgess reported that he has "debilitating anxiety and
panic attacks, but his mental status examinations were largely normal." (Id at 18.) Burgess also
told Dr. Fink and Newmark that he was doing some work and school, and "although it provoked
some anxiety, he was still able to do it." (Id) ALJ Barr also noted that Burgess was
"inconsistent with his medication use" and "cancelled or did not show up to many psychotherapy
or medication management treatment sessions." (Id) ALJ Barr also focused on Burgess's
activities of daily living, noting that he testified that he babysits and takes out the garbage. (Id)
She noted that he can "play games on his phone and focus on the television for a while" even
though "the light hurts his eyes." (Id)
Under the fourth step, ALJ Barr also weighed the medical opinion evidence to inform her
determination of Burgess's residual functional capacity. (Id at 17-18.) She assigned "little
weight" to the opinion of Carole Newmark because "it directly contradicts her treatment notes in
which she states that the claimant should seek employment," and "is also inconsistent with the
findings of the mental status examinations, which were largely normal." (Id. at 18.) She
assigned "little weight" to the opinion of Jaime Franco because "it is unsupported by any
treatment notes" and is "inconsistent with the medical evidence." (Id) She assigned "little
weight" to Dr. Parvesh Sharma's medical source statement because it was written "after only one
appointment" and Burgess's mental status examination at the appointment showed that "he was
fully alert, had no delusions, and had intact memory and concentration." (Id.) In contrast, she
17

assigned "significant weight" to Dr. Barbara Akresh's opinion "because it is consistent with the
medical evidence documenting the

claimant's history of migraines." (Id) She assigned "little

weight" to Dr. Benjamin Kropsky's opinion that Burgess should avoid respiratory irritants as
there is "no objective evidence in the record of any history of asthmatic bronchitis," but assigned
"significant weight" to his opinion that Burgess has no other physical limitations "because it is
consistent with the claimant's physical examinations. (Id.) She assigned "significant weight" to
the opinions of Drs. Herb Meadow and David Mahony because they are "based on clinical
findings" and "consistent with the medical evidence." (Id.) She assigned "great weight" to Dr.
Reddy's opinion because "it is based on a review of the record and is consistent with the
objective evidence." (Id.)
Finally, at the fifth step, ALJ Barr found that Burgess could not perform any past relevant
work. (Id. at 18.) However, she found that Burgess retained the residual functional capacity to
perform jobs that exist in significant numbers in the national economy, such as that of a
"housekeeper/office cleaner," "laundry sorter," or "clerical assistant." (Id. at 19.) Therefore,
ALJ Barr concluded that Burgess has not been under a disability as defined in the Act since June
23, 2011. (Id. at 20.)

III.

A.

DISCUSSION

Standard of Review
Upon judicial review, "[t]he of findings of the Commissioner of Social Security as to any

fact, if supported by substantial evidence, shall be conclusive[.]" 42 U.S.C. § 405(g), 1383(c)(3).
Therefore, a reviewing court does not determine de novo whether a claimant is disabled. Brault
v. Soc. Sec. Admin. Comm 'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (citing Pratts v.
Chater, 94 F.3d 34, 37 (2d Cir. 1996)); accord Mathews v. Eldridge, 424 U.S. 319, 339 n.21

18

(1976) (citing 42 U.S.C. § 405(g)). Rather, the court is limited to "two levels of inquiry."

Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). First, the court must determine whether the
Commissioner applied the correct legal principles in reaching a decision. 42 U.S.C. § 405(g);

Tejada v. Apfel, 167 F .3d 770, 773 (2d Cir. 1999) (citing Johnson, 817 F .2d at 986); accord
Brault, 683 F.3d at 447. Second, the court must decide whether the Commissioner's decision is
supported by substantial evidence in the record. 42 U.S.C. § 405(g). If the Commissioner's
decision meets both of these requirements, the reviewing court must affirm; if not, the court may
modify or reverse the Commissioner's decision, with or without remand. (Id.)
An ALJ's failure to apply the correct legal standard constitutes reversible error, provided
that the failure "might have affected the disposition of the case." Pollard v. Halter, 377 F.3d
183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)); accord

Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). This applies to an ALJ's failure to follow an
applicable statutory provision, regulation, or Social Security Ruling ("SSR"). See, e.g., Kohler,
546 F.3d at 265 (regulation); Schaal v. Callahan, 933 F. Supp. 85, 93 (D. Conn. 1997) (SSR). In
such a case, the court may remand the matter to the Commissioner under sentence four of 42
U.S.C. § 405(g), especially if deemed necessary to allow the ALJ to develop a full and fair
record to explain his reasoning. Crysler v. Astrue, 563 F. Supp. 2d 418, 428 (N.D.N.Y. 2008)
(citing Martone v. Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999)).
If the reviewing court is satisfied that the ALJ applied correct legal standards, then the

court must "conduct a plenary review of the administrative record to determine if there is
substantial evidence, considering the record as a whole, to support the Commissioner's
decision." Brault, 683 F.3d at 447 (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)).
The Supreme Court has defined substantial evidence as requiring "more than a mere scintilla. It

19

means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)

(quoting Consol. Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)); accord Brault, 683 F.3d at 447-48. The substantial evidence
standard means once an ALJ finds facts, a reviewing court may reject those facts "only if a
reasonable factfinder would have to conclude otherwise." Brault, 683 F.3d at 448 (quoting

Warren v. Shala/a, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted).
To be supported by substantial evidence, the ALJ's decision must be based on
consideration of"all evidence available in [the claimant]'s case record." 42 U.S.C.
§ 423(d)(5)(B), 1382c(a)(3)(H)(i). The Act requires the ALJ to set forth "a discussion of the
evidence" and the "reasons upon which it is based." 42 U.S.C. § 405(b)(l). While the ALJ's
decision need not "mention[] every item of testimony presented," Mongeur v. Heckler, 722 F.2d
1033, 1040 (2d Cir. 1983) (per curiarn), or "reconcile explicitly every conflicting shred of
medical testimony," Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v.

Heckler, 725 F.2d 174, 176 (2d Cir. 1983)), the ALJ may not ignore or mischaracterize evidence
of a person's alleged disability. See Ericksson v. Comm 'r ofSoc. Sec., 557 F.3d 79, 82-84 (2d
Cir. 2009) (mischaracterizing evidence); Kohler v. Astrue, 546 F.3d 260, 269 (2d Cir. 2008)
(overlooking and mischaracterizing evidence); Ruiz v. Barnhart, No. 01 Civ. 1120 (DC), 2002
WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence); see also Zabala, 595 F.3d at 409
(reconsideration of improperly excluded evidence typically requires remand). Eschewing rote
analysis and conclusory explanations, the ALJ must discuss the "the crucial factors in any
determination ... with sufficient specificity to enable the reviewing court to decide whether the
determination is supported by substantial evidence." Calzada v. Astrue, 753 F. Supp. 2d 250,
269 (S.D.N.Y. 2010) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)).

20

B.

Determination of Disability
1.

Evaluation of Disability Claims

Under the Social Security Act, every individual considered to have a "disability" is
entitled to disability insurance benefits. 42 U.S.C. § 423(a)(l). The Act defines "disability" as 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." Id. at § 416(i)(l )(A),
423(d)(l)(A), 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505, 416.905. A claimant's
impairments 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." 42 U.S.C. § 423(d)(2)(A),
1382c(a)(3)(B); see also 20 C.F.R. § 404.1505, 416.905.
To determine whether an individual is entitled to receive disability benefits, the
Commissioner is required to conduct the following five-step inquiry: (1) determine whether the
claimant is currently engaged in any substantial gainful activity; (2) if not, determine whether the
claimant has a "severe impairment" that significantly limits his or her ability to do basic work
activities; (3) if so, determine whether the impairment is one of those listed in Appendix 1 of the
regulations - if it is, the Commissioner will presume the claimant to be disabled; (4) if not,
determine whether the claimant possesses the RFC to perform his past work despite the
disability; and (5) if not, determine whether the claimant is capable of performing other work.
20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Gonzalez v. Apfel, 61 F.
Supp. 2d 24, 29 (S.D.N.Y. 1999). While the claimant bears the burden of proving disability at
the first four steps, the burden shifts to the Commissioner at step five to prove that the claimant

21

is not disabled. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Cage v. Comm 'r ofSoc. Sec.,
692 F.3d 118, 123 (2d Cir. 2012).
The ALJ may find a claimant to be disabled at either step three or step five of the
Evaluation. 20 C.F.R. § 404.1520(a)(4), 416.920(a)(4). At step three, the ALJ will find that a
disability exists if the claimant proves that his or her severe impairment meets or medically
equals one of the impairments listed in the regulations. 20 C.F.R. § 404.1520(d), 416.920(d). If
the claimant fails to prove this, however, then the ALJ will complete the remaining steps of the
Evaluation. 20 C.F.R. § 404.1520(e), 404.1545(a)(5), 416.920(e), 416.945(a)(5).
A claimant's RFC is "the most [she] can still do despite [her] limitations." 20 C.F.R.
§ 404.1545(a), 416.945(a); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); see also S.S.R. 969P (clarifying that a claimant's RFC is her maximum ability to perform full-time work on a
regular and continuing basis). The ALJ's assessment of a claimant's RFC must be based on "all
relevant medical and other evidence," including objective medical evidence, such as x-rays and
MRis; the opinions of treating and consultative physicians; and statements by the claimant and
others concerning the claimant's impairments, symptoms, physical limitations, and difficulty
performing daily activities. Genier, 606 F.3d at 49 (citing 20 C.F.R. § 404.1545(a)(3)); see also
20 C.F.R. § 404.1512(b), 404.1528, 404.1529(a), 404.1545(b).
In evaluating the claimant's alleged symptoms and functional limitations for the purposes
of steps two, three, and four, the ALJ must follow a two-step process, first determining whether
the claimant has a "medically determinable impairment that could reasonably be expected to
produce [her alleged] symptoms." 20 C.F .R. § 404.1529(b ), 4 l 6.929(b ); Genier, 606 F .3d at 49.
An ALJ should not consider whether the severity of an individual's alleged symptoms is
supported by objective medical evidence. Social Security Ruling ("SSR") 16-3P, 2016 WL

22

1119029, at *3. Second, the ALJ "evaluate[s] the intensity and persistence of [the claimant's]
symptoms so that [the ALJ] can determine how [those] symptoms limit [the claimant's]

capacity

for work." 20 C.F.R. § 404.1529(c); see also 20 C.F.R. § 416.929(c); Genier, 606 F.3d at 49.
The ALJ must consider the entire case record, including objective medical evidence, a claimant's
statements about the intensity, persistence, and limiting effects of symptoms, statements and
information provided by medical sources, and any other relevant evidence in the claimant's
record. SSR 16-3P, 2016 WL 1119029, at *4-6. The evaluation ofa claimant's subjective
symptoms is not an evaluation of that person's character. Id., at* 1.
In making the determination of whether there is any other work the claimant can perform,
the Commissioner has the burden of showing that "there is other gainful work in the national
economy which the claimant could perform." Balsamo v. Chafer, 142 F.3d 75, 80 (2d Cir. 1998)
(citation omitted).

2.

Treating Physician Rule

The SSA regulations require the Commissioner to evaluate every medical opinion
received. See 20 C.F.R. § 404.1527(c); see also Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.
1993). The opinion of a claimant's treating physician is generally given more weight than the
opinion of a consultative or non-examining physician because the treating physician is likely
"most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s)."
20 C.F.R. § 404.1527(c)(2), 416.927(c)(2); see also Burgess v. Astrue, 537 F.3d 117, 128 (2d
Cir. 2008) (discussing the "treating physician rule of deference"). A treating physician's opinion
is entitled to "controlling weight" if it is "well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the]
case record." 20 C.F.R. § 404.1527(c)(2); see also Greek v. Colvin, 802 F.3d 370, 376 (2d Cir.

23

2015) ("SSA regulations provide a very specific process for evaluating a treating physician's
opinion and instruct ALJs to give such opinions 'controlling weight' in all but a limited range of
circumstances.").

If the treating physician's opinion is not given controlling weight, the Commissioner must
nevertheless determine what weight to give it by considering: (1) the length, nature, and
frequency of the relationship; (2) the evidence in support of the physician's opinion; (3) the
consistency of the opinion with the record as a whole; (4) the specialization of the physician; and
(5) any other relevant factors brought to the attention of the ALJ that support or contradict the
opinion. 20 C.F.R. § 404.1527(c)(2)(i)-(ii); Schisler, 3 F.3d at 567-69. The Commissioner may
rely on the opinions of other physicians, even non-examining ones, but the same factors must be
weighed. 20 C.F.R. § 416.927(e).
The ALJ is required to explain the weight ultimately given to the opinion of a treating
physician. See 20 C.F.R. § 404.1527(c)(2) ("We will always give good reasons in our notice of
determination or decision for the weight we give your treating source's opinion"). Failure to
provide "good reasons" for not crediting the opinion of a claimant's treating physician is a
ground for remand. Greek, 802 F.3d at 375 (citing Burgess, 537 F.3d at 129); see also Halloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) ("We do not hesitate to remand when the

Commissioner has not provided 'good reasons' for the weight given to a treating physician's
opinion and we will continue remanding when we encounter opinions from ALJ s that do not
comprehensively set forth reasons for the weight assigned to a treating physician's opinion.").
Reasons that are conclusory fail the "good reasons" requirement. Gunter v. Comm 'r of Soc. Sec.,
361 Fed. Appx. 197, 199-200 (2d Cir. 2012) (finding reversible error where an ALJ failed to
explain his determination not to credit the treating physician's opinion). The ALJ is not

24

permitted to arbitrarily substitute his own judgment of the medical proof for the treating

physician's opinion. Balsamo, 142 F.3d at 81.
Furthermore, an ALJ "cannot reject a treating physician's diagnosis without first
attempting to fill any clear gaps in the administrative record," especially where the claimant's
hearing testimony suggests that the ALJ is missing records from a treating physician. Burgess,
537 F.3d at 129 (quoting Rosa, 168 F.3d at 79); Rosado v. Barnhart, 290 F. Supp. 2d 431, 438
(S.D.N.Y. 2003) ("[A] proper application of the treating physician rule mandates that the ALJ
assure that the claimant's medical record is comprehensive and complete."). Similarly, "if an
ALJ perceives inconsistencies in a treating physician's reports, the ALJ bears an affirmative duty
to seek out more information from the treating physician and to develop the administrative
record accordingly." Hartnet v. Apfel, 21 F. Supp. 2d 217, 221 (E.D.N.Y. 1998), accord Rosa,
168 F.3d at 79.
Finally, the ALJ must give advance notice to a pro se claimant of adverse findings.

Snyder v. Barnhart, 323 F. Supp. 2d 542, 545 (S.D.N.Y. 2004) (citing Infante v. Apfel, No. 97
Civ. 7689 (LMM), 2001 WL 536930, at *6 (S.D.N.Y. May 21, 2001)). This allows the prose
claimant to "produce additional medical evidence or call [her] treating physician as a witness."

Brown v. Barnhard, 02 Civ. 4523 (SHS), 2003 WL 1888727, at *7 (S.D.N.Y. April 15, 2003)
(citing Santiago v. Schweiker, 548 F. Supp. 481, 486 (S.D.N.Y. 1981)).

3.

The Commissioner's Duty to Develop the Record

The ALJ generally has an affirmative obligation to develop the administrative record.
20 C.F.R. § 404.1512(d); Sims v. Apfel, 530 U.S. 103, 110-11 (2000) ("Social Security
proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts
and develop the arguments both for and against granting benefits[.]"). Under the Act, the ALJ

25

must "make every reasonable effort to obtain from the individual's treating physician ... all

medical evidence, including diagnostic tests, necessary in order to properly make" a
determination of disability. 42 U.S.C. § 423(d)(5)(B). Furthermore, when the claimant is
unrepresented by counsel, the ALJ "has a duty to probe scrupulously and conscientiously into
and explore all relevant facts ... and to ensure that the record is adequate to support his
decision." Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999), citing Dechirico v. Callahan, 134
F.3d 1177, 1183 (2d Cir. 1998); Rosa v. Callahan, 168 F .3d 72, 82-83 (2d Cir. 1999); Pratts v.

Chater, 94 F.3d 34, 37-38 (2d Cir. 1996). Remand to the Commissioner is appropriate when
there are "obvious gaps" in the record and the ALJ has failed to seek out additional information
to fill those gaps. See Lopez v. Comm'r ofSoc. Sec., 622 Fed. Appx. 59 (2d Cir. N.Y. 2015),
citing Rosa v. Callahan, 168 F .3d 72, 79 n.5 (2d Cir. 1999).
C.

Issues on Appeal
The ALJ Failed to Properly Apply the Treating Physician Rule.

1.

Burgess argues that the ALJ failed to properly weigh the opinion of his treating
psychiatrist, Dr. Sharma, when the opinion was not assigned controlling weight. (Pl. Mem. at 712.) Burgess also argues that the ALJ assigned too much weight to the opinions of the
consultative psychiatrists, Dr. Meadow and Dr. Mahony. (Id.) The Court agrees and finds that
remand is warranted.
a.

Dr. Parvesh Sharma

Burgess argues that Dr. Parvesh Sharma's opinion should have been assigned controlling
weight because it is based on appropriate medical findings and is not contradicted by other
substantial evidence in the record. (Pl. Mem. at 11.) A treating physician's opinion as to the
nature and severity of the impairment is given controlling weight "so long as it is well-supported

26

by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence in the case record." BurK,ess v. Astrue, 537 F.3d 117 128 (2d Cir.
1

2008) (internal citations omitted); 20 C.F.R. § 404.1527(d)(2). Burgess argues that it is harder to
find objective medical evidence to support a psychiatric diagnosis. (Pl. Mem. at 9.) A medical
opinion may be assigned more weight if it is supported by psychiatric signs, which are medically
demonstrable phenomena that indicate specific psychological abnormalities, e.g. abnormalities of
behavior, mood, thought, memory, orientation, development, or perception. See 20 C.F.R.
§416.927(c)(3) and §416.928. In assigning little weight to Dr. Sharma's opinion, the ALJ made
no mention of the treating physician rule and did not address whether Dr. Sharma was a treating
physician.
Where the treating physician's opinion is not given controlling weight, it should be
weighed in accordance with the factors in 20 C.F.R. § 404.1527 and§ 416.927. (Pl. Mem. at
11.) These factors include:
(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; (iv) whether the
opinion is from a specialist; and (v) other factors brought to the Social Security
Administration's attention that tend to support or contradict the opinion.
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). If an ALJ gives a treating physician

opinion something less than "controlling weight," she must provide good reasons for doing so.
Failure to provide good reasons for not crediting the opinion of a claimant's treating physician is
a ground for remand. Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998). In the present case, the
ALJ only cited the length of the treatment relationship at the time the opinion was produced and
its consistency with records from the same day. (Tr. at 18.) She did not consider factors that
weigh in favor of assigning greater weight to Dr. Sharma's opinion, including the continuing
relationship between Burgess and Dr. Sharma, Dr. Sharma's psychiatric specialty, or other
27

evidence on the record that supported Dr. Shanna's opinion. For example, Dr. Mahony's opinion

stated that Burgess's impairments "will interfere with fhisl ability to function on a daily basis,"
(Id. at 474.) Most importantly, in the Court's view, the ALJ failed to address Burgess's multiple

visits to the Montefiore emergency department over several years, which reflect the severity of
Burgess's panic attacks. (Id at 336-79, 414-30.)
Where "the evidence of record permits us to glean the rationale of an ALJ's decision, we
do not require that he have mentioned every item of testimony presented to him or have
explained why he considered particular evidence unpersuasive or insufficient to lead him to a
conclusion of disability." Petrie v. Astrue, 412 F. App'x 401, 407 (2d Cir. 2011) (citing

Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983). Although the ALJ need not explicitly
consider every item of evidence in the record, in the present case she failed to consider the record
as a whole or discuss the regulatory factors in weighing Dr. Shanna's opinion. The ALJ erred in
assigning Dr. Shanna's opinion little weight with minimal discussion. Therefore, the Court
recommends that the case be remanded for a comprehensive weighing of the regulatory factors.
b.

Consultative Physicians

The ALJ assigned "significant weight" to the opinions of Drs. Meadow and Mahony
because they are "based on clinical findings" and "consistent with the medical evidence." (Tr. at
18.) Burgess argues that the consultative psychiatrists' opinions should have received less
weight because they did not receive the necessary background information to evaluate Burgess's
disability. (Pl. Mem. at 10.) He does not, however, identify any specific background
information that might have led to a different result. (Id) The reports from Dr. Meadow and Dr.
Mahony show that they obtained a detailed personal history from Burgess, including information

28

on when he was drugged and his history of drug and alcohol use. (Tr. at 385-86, 472-73.) The

Court does not find that the ALJ erred in this regard.
Burgess points out, however, that after the ALJ's opinion was issued, Dr. Meadow has
been indicted for Medicaid and Medicare fraud. (Pl. Mem. at 5.) The Commissioner argues that
Dr. Meadow's report was "generally consistent" with the rest of the record. (Def. Mem. at 1819.) Dr. Meadow's report records that Burgess's demeanor was "cooperative" and his thought
process was "coherent and goal directed," with "[n]o evidence of hallucinations, delusions, or
paranoia." (Tr. at 386.) Burgess's affect was "[a]ppropriate in speech and thought content," and
his mood was "[d]epressed" and "anxious." (Id.) Similarly, Dr. Mahony's report from January
14, 2014, notes that Burgess was "cooperative," his thought process was "[c]oherent and goal
directed with no evidence of hallucinations, delusions, or paranoia," but his affect was
"[d]epressed" and his mood was "[d]ysthymic." (Id. at 473.) Dr. Sharma's records also reflect a
"logical" thought process with no hallucinations, delusions or paranoid ideation, with
"constricted" affect. (Id. at 527-29.) Even so, the Court is aware that Dr. Meadow has since
pleaded guilty to healthcare fraud. (Def. Mem. at 18-19.) This is sufficient reason for the Court
to consider Dr. Meadow's opinion in a critical light.
The Commissioner argues that even if Dr. Meadow's opinion was set aside, Dr.
Mahony' s opinion is sufficient "substantial evidence." (Def. Mem. at 19.) Although Dr.
Meadow and Dr. Mahony's opinions are similar, Dr. Mahony's opinion reflects more severe
limitations. In particular, Dr. Meadow found that the examination results "appear to be
consistent with psychiatric problems, but in itself, this does not appear to be significant enough
to interfere with [Burgess's] ability to function on a daily basis." (Tr. at 387.) In contrast, Dr.
Mahony found that the results "will interfere with [Burgess's] ability to function on a daily

29

basis." (Id. at 474.) While Dr. Meadow opined that Burgess "would have some difficulty

dealing with stress," Dr. Mahony opined that Burgess faced mild difficulties in "maintaining
attention and concentration and maintaining a regular schedule," and moderate limitations in
"learning new tasks, performing complex tasks, making appropriate decisions, relating to others,
and dealing with stress." (Id. at 387, 474.) Given that both opinions received significant weight,
it is likely that Dr. Meadow's opinion influenced the ALJ's decision.
The Commissioner's argument that relying on Dr. Meadow's opinion was harmless error
is also unpersuasive because it is not the role of the Court to overlook a legal error save for very
limited circumstances. See Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015) (discussing
Zabala v. Astrue, 595 F.3d 402 (2d Cir. 2010)) (affirming that a legal error was not prejudicial

because "the excluded evidence is essentially duplicative of evidence considered by the ALJ'').
In the present case, the ALJ explicitly assigned "significant weight" to Dr. Meadow's opinion
when it reflected milder limitations than other psychiatrists' reports, and it is likely that it
influenced the ALJ's analysis. The Court concludes that the risk oflegal error is too high and
the case should be remanded.
Setting aside the issue of Dr. Meadow's opinion, the ALJ's decision to assign significant
weight to the consultative physicians is also contrary to the treating physician rule. The Second
Circuit has cautioned ALJs not to rely heavily on the findings of consultative physicians after a
single examination. Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013). "Consultative exams are
often brief, are generally performed without benefit or review of claimant's medical history and,
at best, only give a glimpse of the claimant on a single day. Often, consultative reports ignore or
give only passing consideration to subjective symptoms without stated reasons." Cruz v.
Sullivan, 912 F .2d 8, 13 (2d Cir. 1990) (citing Torres v. Bowen, 700 F. Supp. 1306, 1312

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(S.D.N.Y. 1988)). This is especially important for a psychiatric diagnosis. Dr. Shanna's report

reflects that Bur~ess has good days and bad days. (Tr. at 461.) Dr. Sharma treated Burness for
over a year and there are no indications that he amended his opinion, while Dr. Meadow and Dr.
Mahony only saw Burgess on a single day each and over two years apart. The Court rejects the
Commissioner's assertion that two evaluations by different consultative psychiatrists "provided a
more longitudinal picture" of Burgess's condition than an evaluation by his treating psychiatrist.
(Def. Mem. at 17.) The treating physician rule also holds that the opinion of a treating physician
on the subject of medical disability is "entitled to some extra weight, even if contradicted by
substantial evidence, because the treating source is inherently more familiar with a claimant's
medical condition than are other sources." Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 2000).
Therefore, the Court remands the case for proper weighing of the opinions of treating and
consulting psychiatrists.

2.

The ALJ failed to properly evaluate Burgess's credibility.

Burgess argues that the ALJ's decision on his credibility was not supported by substantial
evidence. 2 Given that the Court has decided that there was legal error, the Court does not rule on
this issue, but discusses the applicable standard below.
ALJ Barr determined that Burgess's medically determinable impairments could
reasonably be expected to cause the alleged symptoms but that his "statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible." (Id. at
15.) Specifically, the ALJ notes Burgess's treatment regime, his activities of daily living, his
attendance at work and school, and his mental status examinations. (Id. at 18.)

SSR 96-7p was rescinded and replaced by SSR 16-3p from March 24, 2016 onwards. The SSA has eliminated the
use of the term "credibility" in the two-step analysis to clarify that subjective symptom evaluation is not an
examination of an individual's character. SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016).

2

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The substantial evidence review standard is "a very deferential standard of review - even
more so than the "clearly erroneous" standard." Brault v. Social Sec. Admin., Com 'r, 683 F.3d
443, 448 (2d Cir. 2012). "[T]he court may not substitute its own judgment for that of the
Secretary, even if it might justifiably have reached a different result upon a de nova review."

Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). "If there is substantial evidence to support
the determination, it must be upheld." Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). Substantial evidence, however,
requires "more than a mere scintilla." Selian, 708 F.3d at 417 (quoting Richardson v. Perales,
402 U.S. 389, 401 ( 1971) ). In making the credibility finding, the ALJ discussed factors set forth
in 20 C.F.R. § 404.1529(c)(3) and§ 416.929(c)(3), namely Burgess's daily activities and
treatment regime. By citing to specific parts of the record and demonstrating their
inconsistencies, the ALJ has satisfied the requirement that she must discuss "the crucial factors
in any determination ... with sufficient specificity to enable the reviewing court to decide
whether the determination is supported by substantial evidence." Calzada v. Astrue, 753 F.
Supp. 2d 250, 269 (S.D.N.Y. 2010) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984)).
Burgess takes specific issue with the ALJ's discussion of his non-compliance with
medical treatment. (Pl. Mem. at 14.) The Commissioner "will not find an individual's symptoms
inconsistent with the evidence in the record on this basis without considering possible reasons he
or she may not comply with treatment or seek treatment consistent with the degree of his or her
complaints." SSR 16-3p, 2016 WL 1020935 (March 16, 2016). "A claimant's denial of
psychiatric disability or the refusal to obtain treatment for it is not necessarily probative." De

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Leon v. Sec'y of Health & Human Servs., 734 F.2d 930, 934 (2d Cir. 1984). The Commissioner

argues that Burgess did not show that his noncompliance with medication was based on his
psychological disorder, and Burgess's mental status examinations show that his judgment was
good or fair. (Def. Mem. at 21-22.) The Court agrees with the Commissioner. The record also
shows that Burgess failed to attend some appointments because he was not having panic attacks,
not because of his psychological disorder. (Tr. at 529.)
Burgess also argues that the ALJ's discussion of Burgess's work experience and activities
of daily living is wrong and does not demonstrate that Burgess can handle "the mental demands
of full-time competitive work." (Pl. Mem. at 14-15.) The Commissioner cites to cases that
demonstrate how activities of daily living may be relevant in the ALJ's decision. (Def. Mem. at
23.) Given that the substantial evidence review standard is a deferential one, and the ALJ has
cited to specific activities to substantiate its finding, the Court agrees with the ALJ.
Burgess's final contention is about the mental status examinations on the record. (Pl.
Mem. at 13-14.) This argument is related to the weight assigned to the opinions of treating and
consultative physicians. Because the Court has decided that the ALJ erred in this regard, it
cannot discuss whether the decision was issued based on substantial evidence. Therefore, the
Court remands the case for application of the correct legal principles.
D.

Remedy

Under 42 U.S.C. § 405(g), the District Court has the power to affirm, modify, or reverse
the ALJ' s decision with or without remanding for further proceedings. Where an ALJ has
committed a legal error that may have affected the disposition of the case, such failure
constitutes reversible error. Pollardv. Halter, 377 F.3d 183, 189 (2d Cir. 2004). Remand may
be appropriate if "the ALJ has applied an improper legal standard." Rosa v. Callahan, 168 F.3d
33

72, 82-83 (2d Cir. 1999). Because ALJ Barr failed to apply the correct legal standard for

weighing the opinions of Burgess's treating and consultative physicians. remand is appropriate.
Burgess did not argue that the ALJ' s residual functional capacity finding was not supported by
substantial evidence so the Court does not decide this issue. On remand, the Commissioner shall
assign proper weight to the opinions of Burgess's treating physicians and consultative
physicians.

IV. CONCLUSION
For the foregoing reasons, Burgess's motion is GRANTED, the Commissioner's motion
is DENIED, and the case is REMANDED pursuant to 42 U.S.C. § 405(g) for further
proceedings consistent with this Opinion and Order.
Having resolved Doc. Nos. 14 and 16, the Clerk of Court is directed to terminate this
action.

SO ORDERED this 19th day of December 2016.
New York, New York

~~·
The Honorable Ronald L. Ellis
United States Magistrate Judge

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