Paredes v. Commissioner of Social Security

Filing 19

OPINION AND ORDER re: 17 CROSS MOTION for Judgment on the Pleadings filed by Commissioner of Social Security 15 MOTION for Judgment on the Pleadings filed by David Paredes. Paredes moves pursuant to Fed. R. Civ. P. 1 2(c) for an order reversing the Commissioner's decision or remanding for further proceedings; the Commissioner cross-moves pursuant to Fed. R. Civ. P. 12(c) for an order affirming her decision. The parties have consented to this Court's jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c). (As further set forth in this Order.) For the foregoing reasons, the Commissioner's motion is DENIED, plaintiff's motion is GRANTED, and this action is REMANDED to the Commissioner for further proceedings consistent with this Opinion and Order. (Signed by Magistrate Judge Barbara C. Moses on 5/19/2017) (cf)

USDCSDNY
DOCUMENT
ELE_ TRONICALLY Fl~iDC
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DAVID PAREDES,
Plaintiff,
-against-

~:~ILED: iffji '!hf
16-CV-00810 (BCM)

OPINION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Plaintiff David Paredes brings this action pursuant to Section 205(g) of the Social Security
Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final determination of the
Commissioner of Social Security (the Commissioner) oenying his application for Social Security
Disability Insurance benefits (DIB) and Supplemental Security Income (SSI). 1 Paredes moves
pursuant to Fed. R. Civ. P. 12(c) for an order reversing the Commissioner's decision or remanding
for further proceedings; the Commissioner cross-moves pursuant to Fed. R. Civ. P. 12(c) for an
order affirming her decision. The parties have consented to this Court's jurisdiction for all purposes
pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the plaintiff's motion is
GRANTED and the case will be REMANDED to the Commissioner for further proceedings.
I.

BACKGROUND

A.

Procedural Background

Paredes applied for disability insurance benefits on March 7, 2013, alleging that he became
disabled on February 23, 2013. See Cert. Tr. of Record of Proceedings (Dkt. Nos. 13 through 138) at 90, 103 (hereinafter "R._") .2 The application was denied on May 24, 2013. (R. 118-25.)

1

Because the definition of "disabled," governing eligibility for benefits, is the same for DIB and
SSI, the term "disability insurance benefits" will be applied to both. See Chico v. Schweiker, 710
F.2d 947, 948 (2d Cir. 1983) (generally referring to "disability insurance benefits" because SSI
regulations mirror DIB regulations); Calzada v. Astrue, 753 F. Supp. 2d 250, 266-67 (S.D.N .Y.
2010) (same).
2

With respect to DIB, Paredes was required to establish that he was disabled prior to his "date last
insured," which was December 31, 2016. See Arone v. Bowen, 882 F.2d 34, 37-38 (2d Cir. 1989).

Thereafter, Paredes requested a hearing before an administrative law judge (ALJ) (R. 126-28), and
on June 25, 2014, he appeared, without counsel, before ALJ Seth Grossman. Plaintiff's nephew,
Estalio Delasantos, also appeared and testified at the 2014 hearing. (R. 53-58.) On March 25, 2015,
Paredes appeared again, without counsel, for a supplemental hearing before ALJ Grossman. (R.
19, 60-89.) Bernard Gussoff, M.D., and Raymond Cestar, a vocational expert, also appeared and
testified at the 2015 hearing. (R. 60-89.)
After the 2015 hearing, Paredes underwent a consultative psychiatric evaluation. On
September 9, 2015, the ALJ issued a decision finding that Paredes was not disabled within the
meaning of the Act. (R. 13-29.) That decision became final on January 5, 2016, when the Appeals
Council denied Paredes's request for review. (R. 1-4.) This action followed.

B. Personal Background
Paredes was born on April 23, 1975 in the Dominican Republic. (R. 116, 65.) He came to
the United States when he was ten or eleven years old. (R. 65.) Paredes completed "some"
community college (R. 42, 65), and worked continuously from September 1998 to June 2012 as a
security guard and a cleaner. (R. 42, 64-65, 85, 237.) He was married for three years, but separated
from his wife shortly before applying for disability insurance benefits in 2013. (See R. 72, 415,
442.)

"SSI benefits, however, are available without regard to a claimant's employment history."
Singleton v. Colvin, 2015 WL 1514612, at *13 (S.D.N.Y. Mar. 31, 2015) (citing Casson v. Astrue,
2012 WL 28300, at* 1 (N.D.N.Y. Jan. 5, 2012)). Consequently, the Court must consider whether
the ALJ's determination that Paredes was not disabled between February 23, 2013 (his alleged
onset date) and September 9, 2015 (when the ALJ issued his decision) "is legally correct and
supported by substantial evidence." Id.
2

I.

PRE-HEARING EVIDENCE
A.

Pre-Application Evidence

Paredes was diagnosed with bipolar disorder at some point in his twenties. (See R. 590 (age
20); R. 415 (age 26).) He has been treated at the Adult Outpatient Clinic at Bronx-Lebanon
Hospital Center (BLHC) since October 5, 2011. (R. 590.) Psychiatric treatment notes from 2012
indicate that Paredes had "stable baseline functioning" when he was compliant with his
medications. (R. 299.) However, he took his medications "inconsistently." (R. 319.) Paredes has
been hospitalized in psychiatric units at least four times, including twice in February 2013, as
described below. (R. 590.)
Five days prior to his alleged onset date, on February 18, 2013, Paredes called Emergency
Medical Services (EMS), which took him to BLHC, where he reported to staff that he had been
"hearing voices" for five days, had been noncompliant with his medications for "a couple of
months," and had stopped seeing his psychiatrist the previous October. (R. 306, 411, 415.) He
explained that he was stressed because he had separated from his wife (R. 415), and "realized he
needs to get back on his medications." (R. 411.) At one point, Paredes attempted to walk out of
the Emergency Department, and was thereafter "sedated for protection and placed on constant
observation." (R. 423.) He was discharged the following day, with a Global Assessment of
Functioning (GAF) score of 55. (R. 412.) 3

3

A GAF score represents a clinician's overall judgment of the patient's level of psychological,
social, and occupational functioning. GAF scores range from 1 to 100, with 1 being the lowest
level of functioning and 100 the highest. See Am. Psychiatric Ass' n, Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV-TR) 32-34 (4th ed. rev. 2000). A GAF score of 21 to 30
indicates "[b]ehavior is considerably influenced by delusions or hallucinations OR serious
impairment in communication or judgment (e.g., sometimes incoherent, acts grossly
inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in
bed all day; no job, home, or friends). " DSM-IV at 34. A score of 31 to 40 indicates "[s]ome
impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or
irrelevant) OR major impairment in several areas, such as work or school, family relations,
3

An unsigned treatment note dated February 21, 2013 reveals that Paredes "shared distress
over his wife leaving him about three months ago, around the time he stopped taking medications
and became 'too loud.'" (R. 306.) During the February 21 appointment, Paredes acknowledged
that he needed medication. Id. However, two days later, on February 23, 2013, Paredes's family
called EMS, which took Paredes back to BLHC. (R. 341, 383, 592.) His family reported that
Paredes had not taken his medications since his February 18-19 hospitalization, that he was unable
to sleep, "talks a lot without making much sense" and was acting "recklessly and inappropriately."
(R. 341, 383.) For example, he cut all the cables and wires in the apartment he shared with his
brother, gave a television to a stranger, and gave his bank card PIN to "almost anyone he recently
encountered." (R. 341, 383.) The symptoms had begun "gradually over the last few days and
weeks" and, though "intermittent," were "noticed daily since onset." (R. 383-84.) Paredes told
staff at BLHC that he did not know why his brother called EMS. (R. 341, 383.)
Paredes remained at BLHC for approximately two weeks, until March 8, 2013, during
which time he became medication-compliant and "stable." (R. 333, 377.) Upon discharge, Paredes
was calm and cooperative, with a normal mood, appropriate affect, and normal speech. (R. 333,
377.) He reported no hallucinations or delusions, his thought process was logical, and his attention,
concentration, cognition, memory, insight, and judgment were all intact. (R. 333, 377.) His GAF
score was assessed at 60. (R. 3 3 7.)

judgment, thinking or mood." Id. A score of 41-50 indicates "[s]erious 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. A GAF score of
51-60 signifies " [m ]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or coworkers)." Id. Scores in the 60's and higher indicate symptoms that are
"mild," "transient," "minimal," or "absent." Id.
4

Because Paredes told BLHC staff that he was non-compliant with his medication due to
insufficient funds (R. 333), meetings were held with his family and a social worker to discuss
applying for Medicaid, SSI, and public assistance. Id. On March 7, 2013, the day before he was
discharged, Paredes applied for disability insurance benefits.

B.

Post-Application Evidence

On March 11, 2013, Paredes met with Damaries Smith, a social worker at BLHC. (R. 30708.) Paredes reported his recent hospitalization and acknowledged that he decompensated because
he stopped taking his medications: Risperdal (the brand name for risperidone, an antipsychotic
used to treat schizophrenia and bipolar disorder), and Depakote (the brand name for valproic acid,
an anticonvulsant used to treat seizures and bipolar disorder). (R. 307.) Paredes was "slightly on
edge" during the meeting, but cooperative, and the mental status examination findings were
unremarkable. (R. 307.)
On March 20, 2013, Paredes saw Jose Lopez, M.D. at BLHC. (R. 351-56.) Dr. Lopez
referred Paredes for a renal consultation (R. 354-55), and on March 26, 2013, Paredes saw Dr.
Molham Abdulsamad, M.D. a nephrologist at BLHC. (R. 348-50.) Paredes reported nocturia
(frequent urination at night), which can be a symptom of Chronic Kidney Disease (CKD), but no
dysuria (painful urination), hematuria (blood in the urine), or other changes in urination. (R. 348.)
Dr. Abdulsamad ordered a renal biopsy. (R. 350.)
On April 2, 2013, Paredes underwent a renal biopsy. (R. 358-75.) The results showed
immunoglobulin A (IgA) nephropathy. 4 In addition, a blood test revealed a Blood Urea Nitrogen

4

lgA nephropathy is a form of CKD that occurs when IgA proteins build up in the kidneys, causing
inflammation that damages kidney tissue. See National Institute of Diabetes and Digestive and
Kidney Diseases, IgA Nephropathy, https://www.niddk.nih.gov/health-information/healthtopics/kidney-disease/iga-nephropathy/Pages/facts.aspx (last visited May 18, 2017).
5

(BUN) level of 27 mg/dL, above the laboratory's normal reference range of 8 to 26 mg/gL. (R.
5

359, 366.) On April 4, 2013, Paredes was diagnosed with CKD, Stage IV (severe). (R. 368, 407410, 444-47.)
Shortly thereafter, on April 16, 2013, Paredes saw Dr. Marina Zilpert, a psychiatric resident
at BLHC. (R. 442.)6 Paredes reported that he was taking his medications and not experiencing any
mental health symptoms. Id. His judgment was mildly impaired, but his mood was "better," his
attention and concentration were "intact," memory was "grossly intact," and other findings were
generally unremarkable. Id. Paredes reported support from his family and his wife, who visited
him but did not live with him. Id.
On April 17, 2013, Paredes presented to Kalpana Uday, M.D., a nephrologist at BLHC,
with CKD Stage IV with Proteinuria (excess proteins in the urine). (R. 437-39.) Paredes reported
that he felt fine and had experienced no changes in his symptoms. (R. 437.) His BUN level
remained at 27 mg/dL; his creatinine levels (another measure of kidney function) were also
elevated, at 2.7 mg/dL (R. 359-68, 764) 7 ; and his "problem list" included nephropathy IgA, chronic

5

According to the Mayo Clinic, "In general, around 7 to 20 mg/dL (2.5 to 7.1 mrnol/L) is
considered normal. But normal ranges may vary, depending on the reference range used by the
lab, and your age ... Generally, a high blood urea nitrogen level means your kidneys aren't
working well." Mayo Clinic, Blood urea nitrogen (BUN) test, http://www.mayoclinic.org/testsprocedures/blood-urea-nitrogen/details/results/rsc-20211280 (last visited May 18, 2017).
6

A number of Paredes's medical reports from BLHC are "authored" by a resident and a few days
later co-signed by a more senior physician. Because we assume that the resident interacted with
the patient, we identify the resident as the treating doctor. However, the ALJ refers to the senior
psychiatrist, Dr. Ketki Shah, as the "treating" doctor. (R. 24.)
7

According to the Mayo Clinic, "A creatinine test reveals important information about your
kidneys. " Creatinine is a chemical waste product which is filtered out of the blood by healthy
kidneys. "If your kidneys aren't functioning properly, an increased level of creatinine may
accumulate in your blood." Mayo Clinic, Creatinine test, http://www.mayoclinic.org/testsprocedures/creatinine-test/home/ovc-20179389 (last visited May 18, 2017). "The normal range for
creatinine in the blood may be 0.84 to 1.21 milligrams per deciliter (74.3 to 107 micromoles per
6

nephritis, proteinuria, dyslipidemia (elevated levels of cholesterol and/or triglycerides), CKD
Stage IV, prediabetes, bipolar disorder, and hypertension. (R. 437.) Dr. Uday referred Paredes for
a pre-transplant evaluation. (R. 439.)
On May 9, 2013, state agency psychologist Dr. T. Harding reviewed the evidence then in
the record and concluded, among other things, that Paredes was able to understand and follow
simple instructions, be attentive and concentrate for two-hour intervals, interact appropriately with
peers and supervisors, and adapt to routine workplace changes. (R. 99.)
On May 16, 2013, Paredes reported to Dr. Zilpert, the psychiatric resident, that his mother
had come to stay with him; that he was taking his medications regularly; and that his functioning
and mood were stable. (R. 761.) His mental status examination findings were generally
unremarkable, and his medications were continued. (R. 761-62.)
C.

Post-Denial Evidence

Between May 31, 2013 and June 13, 2013, Paredes was evaluated by the Federation
Employment and Guidance Service (FEGS). 8 The results of the evaluation are contained in a FEGS
Biopsychosocial Report (BPS Report), which reflects that Paredes was capable of washing dishes
and clothes, sweeping, mopping, vacuuming, watching television, making beds, shopping for
groceries, cooking, reading, socializing, getting dressed, bathing, grooming, and using the toilet.
(R. 551-52, 735-36.) On May 31, 2013, FEGS physician Cindy Grubin, M.D. found that, although
he was calm and cooperative, Paredes had a somewhat constricted mood and affect. (R. 524, 534,

liter), although this can vary from lab to lab, between men and women, and by age ... Generally,
a high serum creatinine level means that your kidneys aren't working well." Id.
8

FEGS was a New York City program that provided "assistance [for] applicants and recipients
with complex clinical barriers to employment, including medical, mental health, and substance
abuse conditions, to obtain employment or federal disability benefits." Morales v. Colvin, 2015
WL 2137776, at *7 n.16 (S.D.N.Y. May 4, 2015).
7

741.) Dr. Grubin did not assess any physical restrictions, but she indicated that Paredes could be
around only a limited number of people, and referred Paredes for a psychiatry examination. (R.
526, 528, 743, 745.) Thereafter, FEGS psychiatrist Jorge Kirschtein, M.D. examined Paredes and
found that he had a depressed mood and constricted affect, but was neat, calm, and cooperative,
and exhibited normal speech, a logical thought process, and normal thought content. (R. 520.) Dr.
Kirschtein assessed "severe" limitations in Paredes's ability to follow work rules and relate to
coworkers, and "moderate" limitations in his ability to accept supervision, deal with the public,
maintain attention, and adapt to changes and stressful situations. (R. 520.) Dr. Kirschtein assigned
Paredes a GAF score of 50. (R. 521.)
On June 5, 2013, Paredes saw Dr. Anele Slezinger and Dr. Kerone Thomas, a resident at
BLHC, for CKD treatment. (R. 767-71.) According to the treatment notes, Paredes's BUN level
had decreased to 23 mg/dL; his creatinine level remained at 2.7 mg/dL; and his estimated
glomerular filtration rate (eGFR), which is another measure of kidney function, was 21.02
mL/min/l.73m2, which is well below the normal range. (R. 769-70.) 9
On June 11, 2013, Paredes saw Ketki Shah, M.D., a psychiatrist, and reported feeling "ok."
(R. 772-73.) He was taking his medications regularly and denied any side effects. (R. 772.) Dr.
Shah found Paredes' s affect was constricted, but his mood was "all right" and the mental status
examination findings were otherwise unremarkable. Id. Dr. Shah also noted that Paredes was
"stable" and "at baseline level of functioning," and continued his medications. (R. 773.) Dr. Shah

"The [e] GFR test estimates your level of kidney function and can help your doctor determine
of
kidney
disease."
Mayo
Clinic,
Membranous
nephorpathy,
your
stage
http://www.mayoclinic.org/diseases-conditions/membranous-nephropathy/basics/testsdiagnosis/con-20026050 (last visited May 18, 2017). The laboratory used by BLHC considers the
normal GFR range for non-African American males aged 30-39 to be 70-162 mL/min/1. 73m2. (R.
350-52.)

9

8

noted that Paredes had brought papers to be filled out in connection with his social security
application. However, Paredes insisted on seeing Dr. Zilpert for the paperwork, and she was
unavailable. Id. 10
On October 8, 2013, Paredes underwent surgery to construct a fistula (an access for
dialysis) in his left forearm. (R. 842-43.) However, as described below, Paredes needed to have
the procedure repeated on February 18, 2014. (R. 795, 841, 845-59.)
On December 9, 2013, Paredes reported to Dr. Lilla Danilov, a psychiatric resident at
BLHC, that he took his medications regularly with no side effects, lived in a one-bedroom
apartment, had a girlfriend, and was looking for a "new job" in a pharmacy. (R. 789.) His mood
was "fine" and other mental status findings were unremarkable. Id. His medications were
continued. (R. 790.)
On January 13, 2014, Dr. Danilov noted that Paredes missed his last appointment because
"his work schedule had changed." (R. 795-96, 832-33.) Paredes appeared for his appointment on
January 13, 2014, however, and was "compliant" and "stable." (R. 795.)
On January 15, 2014, Paredes saw Hanasoge Girishkumar, M.D., in connection with his
CKD. (R. 844.) Paredes reported no unusual dysuria, nor any urinary urgency or frequency. (R.
844.) In the "history" section of his notes, Dr. Girishkumar noted that Paredes's kidney function
was deteriorating and that he might need dialysis in the near future. (R. 844.) Dr. Girishkumar
discussed the need for an "AV [arterio venous] access procedure" on Paredes's left arm and

10

The Court notes that a letter from the Social Security Administration to Paredes, dated June 5,
2013, enclosed a form for Paredes to give to his "current treating doctor." (R. 145.) The form itself
is not in the record, but was likely a medical source statement form. It is possible that on June 11,
2013, Paredes was attempting to have Dr. Zilpert fill out this form because she was the resident
who typically treated him. There is no medical source statement from any of Paredes's treating
physicians in the record.
9

explained the risks and benefits of the procedure to the patient. Id. On February 18, 2014, Dr.
Girishkumar performed the procedure without complications, leaving Paredes with an AV fistula
in his left arm. (R. 845-59.)
On March 13, 2014, Dr. Danilov noted that Paredes "continues to work with a truck
company and is looking for a job as a pharm technician." (R. 836.)
On April 30, 2014, Dr. Uday wrote an unaddressed letter, stating that "[t]his letter is given
at Mr. David Paredes's request. He has chronic kidney disease stage 4, he is not yet on dialysis.
He has an arterio venous fistula done in left upper arm in preparation for dialysis. He attends
primary care and renal transplant program. Please assist him. Contact me if you [have] any
questions." (R. 591.)
On May 8, 2014, in a letter addressed to "Whom It May Concern," Dr. Danilov reported
that Paredes was diagnosed with bipolar disorder at age 20 and had been a patient at BLHC's
Department of Psychiatry-Adult Outpatient Clinic since October 5, 2011, where he was seen by
a psychiatrist at the clinic every two months. (R. 590.) Dr. Danilov noted that Paredes had been
hospitalized in psychiatric units four times, most recently from February to March 2013. Id. In a
second letter addressed to "Whom It May Concern," dated May 28, 2014, Dr. Danilov noted
substantially the same information, adding that Paredes's psychiatric diagnosis was bipolar
disorder. (R. 589.)
On June 6, 2014, Edward Brown, M.D., a cardiologist, wrote a letter to Dr. Uday, who had
referred Paredes for evaluation prior to renal transplantation. (R. 587.) Dr. Brown reported that an
EKG showed left ventricular hypertrophy, that a stress test was normal, and that, "[r]egarding
anesthesia and transplant surgery, his risk for a perioperative cardiovascular event is low, and no
special precautions are indicated." Id.

10

On February 18, 2015, Dr. Uday reported, in a letter addressed to "Whom It May Concern,"
that Paredes had high blood pressure and CKD and was being followed at the Mount Sinai renal
transplant program. (R. 810.) Dr. Uday's treatment notes show that as of January 15, 2015,
Paredes's BUN was back to 27 mg/dL, his creatinine level was up to 3.4 mg/dL, and his eGFR
was down to 16.03 ml/min/1.73m2. (R. 812.)
On February 24, 2015, treatment notes authored by orthopedist Ashley Simela, M.D., and
written primarily in Spanish, show that Paredes was given cyclobenzaprine for back pain. (R. 805.)
His health issues are described in the notes as "Degeneration of intervertebral disc of lumbar
region," with an onset date of February 24, 2015 . Jd.

II.

HEARINGS
A.

June 25, 2014 Hearing

At the June 25, 2014 hearing, Paredes testified that he was 39 years old, finished three
years of community college, and previously worked as a security guard and a cleaner. (R. 41-42.)
He stated that he was not employed but that he walked daily for exercise, at a normal pace, for
approximately 20-30 minutes. (R. 46-47.)
In response to the ALJ' s question whether he was capable of working, Paredes replied,
"Not right now because I have a lot of back pains." (R. 42.) The ALJ asked ifthe pain was caused
by his kidney and Paredes said, "The kidney, yeah. And it's difficult for me to stand because I
used to do a lot of standing, a lot of walking." (R. 43 .) The ALJ asked if Paredes would be able to
do a sitting job and he replied, "It is difficult for me sitting down as well because of the back pain."

Id. The ALJ asked if Paredes could do security work at a desk and Paredes said he could not
because of his back pain; he testified that he could sit for only ten or fifteen minutes and that his
feet would hurt and swell because of his kidney disease. (R. 44.)

11

Paredes further testified that he was "almost getting dialysis" and that he was on a kidney
transplant waiting list with a "five to six year" wait. (R. 44.)
Paredes testified that he had been hospitalized several times because of his bipolar disorder.
(R. 48-49.) The ALJ asked about his last hospitalization and Paredes replied, "I stopped taking the
medication ... I was drinking also. When I stop taking my medication, I drink a lot. I hang out a
lot. That's the main reason. I totally forgot about the medication. I curse people, I scream, I do a
lot of crazy thing [sic]. I hang out too much, stuff like that." (R. 50.) At one point, the ALJ
commented, "You seem pretty normal today." (R. 49.) Paredes responded, "Yeah, I'm fine. I'm
taking medication .... when I don't take my medication, I end up in the hospital." (R. 49.) The
ALJ then asked, "When you take the medication, and again, this is an important question, so think
before you answer. Is the bipolar under control when you take your medication?" (R. 49-50.)
Paredes replied, "Yes." (R. 50.) The ALJ continued, "Completely under control?" Id. Paredes
again replied, "Yes." Id.
The ALJ then commented, "we're probably going to have another hearing because I need
a medical expert to interpret these tests." (R. 51.) The ALJ also stated that he would update the
medical records and send Paredes for consultative psychiatric and internal medicine examinations.
(R. 52.) The ALJ then took testimony from Delasantos, Paredes's 24-year-old nephew, who
testified that he used to live with Paredes. (R. 53.) Delasantos explained that Paredes is "more or
less" okay when he is taking his medications but "went crazy" when he stopped. Id. In response to
the ALJ's question whether Paredes is tired during the day, Delasantos replied, "In situations he's
on the floor saying that his back hurt." (R. 54.) He continued, "He's always in the house. If he
come out [sic], he only comes out for an hour or so. He's always tired, his back hurting." Id.

12

The ALJ then asked Paredes if he gets tired a lot. Paredes replied that he is "always very"
tired, and that his fatigue would interfere with his ability to concentrate on a job. (R. 54.) Paredes
added that his ability to concentrate would also be affected by his frequent urination, impaired
vision, and painful, swollen feet. Id. The transcript reflects that, at one point during the fortyminute hearing, Paredes asked to be excused to use the restroom. (R. 48 .)
The ALJ concluded by telling Paredes, "I have a good idea of what's going on. I'm sending
you out to this doctor. I want to update your records. It' s very possible I could resolve this in your
favor without another hearing. If I can, I will. If not, we'll have a hearing with a doctor her [sic]
and we' ll do what we have to do, okay? . . . Sometimes it's just easier and better with a doctor here
because it has to be done based upon evidence, not just what I think. You have to have the proof
there, but it' s a strong case, at least preliminarily. So I'm sending you out for a doctor, both a
psychiatric doctor and a regular doctor." (R. 56, 57.)
Notwithstanding the ALJ's comment, Paredes was not scheduled for any consultative
examinations between the first and the second hearings.

B.

March 25, 2015 Hearing

At the March 25 , 2015 hearing, Paredes testified that he could not work because of his
CKD, depression, and bipolar disorder. (R. 65 .) He also said he was doing physical therapy for his
back pain, and confirmed that he was still not on dialysis. (R. 66.) When asked what he had done
the previous day, Paredes replied, "Nothing, I stayed in my house all day .. . I didn't have nothing
to do ... I mean, I don't like to go out that much." Id. Later, the ALJ asked Paredes what he does
at home. (R. 71.) When prompted, Paredes confirmed that he watches television, goes out to walk
for 15-20 minutes, and goes to his brother's house to "relax with his [brother's] children" and eat
meals with them. Id.

13

Paredes testified that he could stand for approximately twenty minutes, explaining that he
cannot stand for "too long because my feet hurt, my ankle hurt[s]." (R. 67.) He continued, "I have
a lot of back pains when I stand for a long period of time," which he again attributed to his CKD.

Id. The ALJ asked if Paredes had any problems sitting, and Paredes replied, "I got to have my leg
up ... to feel comfortable." (R. 68.) The ALJ asked if Paredes would be capable of doing a job
that could be done sitting and Paredes replied, "No, I have another inconvenience. I go to the
bathroom a lot ... And I have a hard [time] also memorizing things." Id. After discussing whether
Paredes could do a job answering phones if he were trained to do it, Paredes maintained that he
could not, because, "While answering a [p ]hone, you got to be really polite and sometimes my
attitude change[s] due to my psychiatry situation. I get really angry sometime[s] for no reason."
(R. 69.)
The ALJ then described the difference between physical and mental capabilities, and
Paredes testified again that he was not physically capable of a desk job, including answering
phones, because "I get tired really quickly sitting down for a long time. Like I said before, my leg
is going to hurt. I need to have my leg up. I cannot be sitting down for a long period of time. I got
to stand up. I got back pain also, normally, most of the time." (R. 70.)
Before the ALJ questioned Dr. Gussoff, the medical expert, Paredes noted, "the last time
that I was here, you said you were going to send me an appointment to go see a doctor. You never
sent it to me." (R. 73.) The ALJ replied, "I wonder what happened ... If we need it, we'll do it.
But we have all these records." Id. The ALJ then asked Dr. Gussoff if there was anything else he
should ask Paredes. (R. 72-73.) Dr. Gussoff replied, "I was going to ask him if he is on dialysis,
but his BUN is normal, so there's no need for it." (R. 73.)

14

Dr. Gussoff, once sworn in, confirmed that he was certified in internal medicine,
hematology, and oncology, and had reviewed Paredes's medical records but never previously met
him. (R. 73-74.) Dr. Gussoff testified, based on those records, that Paredes had the most advanced
stage of CKD, Stage IV. (R. 74.) He continued, "On the other hand ... we have a BUN, a measure
of kidney function, of27, which is just about normal. And therefore, he's not on dialysis." Id. The
ALJ asked how someone could have normal kidney function and have the most advanced stage of
chronic renal disease, and Dr. Gussoff responded, "Stage IV, apparently, is based on the pathology
of a biopsy." Id. He continued, "what's confusing is the [biopsy] report at that time, [shows] a
BUN of27. This is just about the upper limit of normal. And obviously, the dialysis is not required.
It is only required when there is nephremia [swelling of the kidneys] ... or significant elevation

of the BUN. This is not the case here." (R. 75.)
The ALJ asked, "Does this mean that his kidney function at the present time is about
normal?" Id. Dr. Gussoff responded, "Using the BUN as a criteria [sic], I would say, yes." Id. The
ALJ responded, "Well does that, and believe me, I am not trying to lead you. It seems some kind
of logic to say ... that the kidney function is normal now, it would seem to me that the problem
would not prevent you from working at the current time, even though you're on a transplant list
... That's a certain logic to that, is that correct?" (R. 75-76.) Dr. Gussoffreplied, "Absolutely,
unless of course, there are other conditions, which I don't find in the record ... And hearing the
testimony, I would think to say that the claimant is functional as you have addressed the issue of
whether he can answer a telephone. And from the testimony and the file, I would say ... that he
could." (R. 76.) Dr. Gussoff then testified that Paredes could "clearly" do sedentary work, and
affirmed that he could "possibly" do light work as well. (R. 76-77.)

15

Dr. Gussoff further testified that it would be "uncommon[]" for Paredes' s back pain to be
caused by a kidney problem because "back pain is " [n Jot a manifestation of kidney disease." (R.
77.) Dr. Gussoff was not asked, and did not discuss, whether Paredes's back pain could be due to
the disc degeneration noted by Dr. Simela on February 24, 2015 . The ALJ asked if frequent
urination was a manifestation of kidney disease, to which Dr. Gussoff replied, "I don' t have any
evidence that he has what is called polyuria, frequent urination." Id. 11
With respect to the kidney transplant list, Dr. Gussoff asserted that his "understanding .. .
[is] candidates for transplant is [sic] obviously not a simple procedure. You have to first of all meet
all the qualifications, which is almost always the claimants are on dialysis with uremia, azotemia
and elevated BUN and symptomology, therein. You have to [have] a donor." (R. 78.) 12 The ALJ
asked Paredes if his famil y had been tested as potential donors and he responded, "Not yet, but I
have talked to a couple of friend[s]. " Id. His brother and mother were precluded from acting as
donors due to health issues. (R. 78.) Paredes interjected to say that he had twice fainted on the train
or bus. (R. 78-79.) Dr. Gussofftestified that CKD "shouldn't" cause fainting "unless the claimant
was significantly anemic. There's no evidence of anemia, which is also . .. a manifestation of

This was not entirely accurate. As noted above, Paredes reported nocturia (frequent urination at
night) as early as March 26, 2013, when he saw nephrologist Dr. Abdulsamad at BLHC. (R. 34850.) In addition, Paredes testified about his frequent urination during his 2014 hearing, during
which he also asked to be excused to use the restroom. (R. 54, 48.)
11

12

"Prerenal azotemia is an abnormally high level of nitrogen waste products in the blood .. . When
nitrogen waste products, such as creatinine and urea, build up in the body, the condition is called
azotemia. These waste products act as poisons when they build up. They damage tissues and reduce
the ability of the organs to function." Medline Plus, Prerenal azotemia,
https: //medlineplus.gov/ency/article/000508.htm (last visited May 18, 2017). "Uremia is a clinical
syndrome associated with fluid, electrolyte, and hormone imbalances and metabolic abnormalities,
which develop in parallel with deterioration of renal function." Medscape, Uremia,
http: //emedicine.medscape.com/article/245296-overview (last visited May 18, 2017).
16

chronic renal disease. I would say that most patients with advanced renal disease are significantly
anemia [sic]." (R. 79.) Dr. Gus so ff also testified that no seizure was documented in the record. Id.
The ALJ then asked Dr. Gussoff if there is "any reason to do an internal medicine
[consultative] examination" or if he is "satisfied that this is an accurate picture." (R. 80-81.) Dr.
Gussoff replied, "I think we have an accurate picture ... The only discrepancy is why Mt. Sinai
Hospital would put him on a transplant list when, in fact, clinically and laboratory-wise he does
not have advanced - I would say emphatically that all of the patients that I have come across at
these hearings and in practice, patients who are on the transplant list are all on dialysis to keep
them under control until they should [sic] be transplanted. So I don' t understand this." (R. 81.)
The vocational expert, Cestar, then testified by telephone. Cestar confirmed that "[a]
hypothetical person of the claimant' s education and vocational background who is limited to
sedentary work, simple task instruction and, at the most, occasional contact with supervisors,
coworkers and the public" could not do Paredes's past relevant work as a security guard and
cleaner. (R. 85-86.) The ALJ then asked Cestar to name three jobs for that hypothetical person. Id.
Cestar replied that the hypothetical person could be a clerical worker, an assembler, or a
surveillance system monitor. Id. He further testified that, nationally, there are approximately
25,000 jobs for clerical workers, 10,000 for assemblers, and 74,000 for surveillance system
monitors. Id. The ALJ asked if "most of these jobs have a reasonable access to bathroom facilities. "

Id. Cestar replied, "Yes." Id. The ALJ then asked whether an individual could be "off task up to
10 percent of the time and absent once per month due to a severe impairment in these jobs and
more than that is problematic," and Cestar replied, "Yes." (R. 86-87.) The ALJ then asked Paredes
ifhe had any questions for Cestar. Paredes informed Cestar that he " sometimes" soils himself, and
Cestar testified that it would not be a problem if it is infrequent. Id. The ALJ asked if Paredes had

17

spoken to his doctors about this problem and he said he had and the doctors told him that it was
"[b ]ecause of the kidney situation." Id. The ALJ asked Dr. Gussoff if that was reflected in the
record, and he replied that he "didn't see anything" and noted that "the frequency of urination is
more likely to be due to the bladder than the kidney" but that he had not seen anything about the
bladder in the medical record. (R. 87-88.) The ALJ then closed the hearing.

III.

POST-HEARING EVIDENCE
On April 16, 2015, less than a month after Paredes's second hearing, Fredelyn Engelberg

Damari, Ph.D., a psychologist, conducted a consultative evaluation of Paredes. (R. 815-22.) Dr.
Damari noted that Paredes was cooperative, but defensive and resistant at times. (R. 816.)
Paredes' s manner of relating, social skills, eye contact, and overall presentation were poor.
(R. 816-17.) His motor behavior was lethargic and his mood was apathetic. (R. 817.) However, his
speech was fluent and clear, his thought process was coherent and goal directed, his affect was of
full range and appropriate, his sensorium was clear, he was fully oriented, and his concentration
and attention were intact. Id. Dr. Damari found that Paredes's cognitive functioning was below
average to borderline, that his insight was fair, and that his judgment was fair to poor. (R. 818.)
Paredes was able to dress, shower, and groom independently, and he was able to manage money
and travel by public transportation. Id. Dr. Damari opined that Paredes could follow and
understand simple directions and instructions, perform simple tasks independently, make
appropriate decisions, relate adequately to others, but that he was "significantly" impaired in his
ability to deal appropriately with stress. Id.
Paredes never underwent any internal medicine or nephrology consultative examination.
As noted above, the testifying medical expert - Dr. Gussoff - was certified in internal medicine,
hematology, and oncology, but not nephrology.

18

IV.

APPLICABLE LAW
A claimant is "disabled" within the meaning of§ 1614(a)(3)(A) of the Act, and thus entitled

to disability insurance benefits, when he is "unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which .. . has lasted or can
be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §
1382c(a)(3)(A). The claimant's impairment, or combination of 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. § 1382c(a)(3)(B). In evaluating disability claims, the
Commissioner is required to apply a five-step process set forth in 20 C.F.R. §§ 404.1520(a),
416.920(a). The Second Circuit has described the sequence 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 20 C.F.R. Pt. 404, subpt. P, app. 1.
... Assuming the claimant does not have a listed impairment, the fourth inquiry is
whether, despite the claimant's severe impairment, []he has the residual functional
capacity to perform h[is] past work. Finally, if the claimant is unable to perform
h[is] past work, the burden then shifts to the Commissioner to determine whether
there is other work which the claimant could perform.

Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (citation omitted). If it is determined
that the claimant is or is not disabled at any step of the evaluation process, the evaluation need not
progress to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant bears the
burden of proof as to the first four steps; the Commissioner bears the burden at the fifth step. See

Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
Therefore, to support a finding that the claimant is not disabled at step five, the Commissioner
must offer evidence demonstrating that other work exists in significant numbers in the national
19

economy that the claimant could perform, given the claimant's residual functional capacity (RFC),
age, education, and past relevant work experience. See 20 C.F.R. §§ 404.1560(c), 416.960(c).
"Residual functional capacity" refers to "the most [claimant] can still do despite [claimant's]
limitations." 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l).
A.

Mental Impairments

When a claimant seeks benefits based on mental impairments, the Commissioner must
assess the severity of the impairment at step two by considering four categories: the claimant's
(i) activities of daily living; (ii) social functioning; (iii) concentration, persistence, or pace; and
(iv) episodes of decompensation. The first three categories are rated on a "five-point scale" from
"none,"

through

"mild,"

"moderate,"

"marked,"

and

"extreme."

20

C.F.R.

§§

404.1520a(c)(4)(2011), 416.920a(c)(4)(2011). 13 The last area - episodes of decompensation - is
rated on a "four-point scale": none, one or two, three, and four or more. Id. As set forth below, to
satisfy a mental impairment listing, a claimant generally must exhibit "marked" impairment in at
least two of the above areas or "repeated" episodes of decompensation. "The term repeated
episodes of decompensation, each of extended duration in these listings means three episodes
within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks." 20 C.F.R.
§Pt. 404, subpt. P, App. 1 § 12.00(C)(4) (2015).
At step three, in order to show that he meets one of the listings for affective mental
disorders (such as bipolar disorder), a claimant must show in part that he satisfies the so-called
"paragraph B criteria" or "paragraph C criteria." The paragraph B criteria require at least two of

13

As of January 17, 2017, the text of 20 C.F.R. § 416.920a (c)(4) and (c)(4) has been amended.
The Commissioner now rates a claimant across "four broad functional areas," considering her
ability to "[u]nderstand, remember, or apply information; interact with others; concentrate, persist,
or maintain pace; and adapt or manage oneself." 20 C.F.R. § 416.920a (c)(3). In this Opinion and
Order the Court applies the regulations as they existed at the time of the Commissioner's decision.
20

the following: ( 1) marked restriction of activities of daily living; (2) marked difficulties in
maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence,
or pace; or repeated episodes of decompensation. See, e.g., 20 C.F.R. Pt. 404, subpt. P, app'x 1 §
12.04(8)(2015). 14 The paragraph C criteria require a "[m]edically documented history of a chronic
... disorder of at least 2 years' duration that has caused more than a minimal limitation of ability
to do basic work activities, with symptoms or signs currently attenuated by medication or
psychosocial support," and one of the following: (1) repeated episodes of decompensation, each
for extended duration; (2) a residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the environment would be predicted
to cause the individual to decompensate; or (3) a current history of one or more years' inability to
function outside a highly supportive living arrangement, with an indication of continued need for
such an arrangement. See, e.g., 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.04(C) (2015).
If the mental disorder does not qualify as a listed impairment under these standards, it may
still qualify as a disability if the claimant's RFC does not allow him to perform the requirements
of his past relevant work, or if his limitations, age, education, and work experience dictate that he
cannot be expected to do any other work in the national economy. 20 C.F.R. §§ 404.1520(e),
416.920(e). The claimant's RFC is determined based on all of the relevant medical and other
evidence in the record, including the claimant's credible testimony, objective medical evidence,
and medical opinions from treating and consulting sources. 20 C.F.R. §§ 404.1520(e), 416.920(e);
404.1545(a)(3), 416.945(a)(3).

14

As of January 17, 2017, the text of 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.04 has also been
amended. In this Opinion and Order the Court applies the regulations as they existed at the time
of the Commissioner's decision.
21

B.

Physical Impairments
1.

Musculoskeletal System Disorders

"Disorders of the musculoskeletal system may result from hereditary, congenital, or
acquired pathologic processes. Impairments may result from infectious, inflammatory, or
degenerative processes, traumatic or developmental events, or neoplastic, vascular, or
toxic/metabolic diseases." 20 C.F.R. Pt. 404, Subpt. P, app'x 1 § 1.00 (A) (2015). Disorders of the
spine include degenerative disc disease. Id. § 1.04. The listing requires "compromise of a nerve
root (including the cauda equine) or the spinal cord." Id. To qualify under the listing, one of the
following must be present:
(A)

Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, ifthere is involvement of the lower back, positive
straight-leg raising test (sitting and supine); or

(B)

Spinal arachnoiditis, confirmed by an operative note or pathology report of
tissue biopsy, or by appropriate medically acceptable imaging, manifested
by severe burning or painful dysesthesia, resulting in the need for changes
in position or posture more than once every 2 hours; or

(C)

Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in an inability to
ambulate effectively.

Id.
2.

Genitourinary Disorders

When a claimant seeks benefits based on CKD, the relevant listings include various socalled " genitourinary disorders." 20 C.F.R. Pt. 404, Subpt. P, app'x 1 § 6.00 (A) (2015). These
include CKD with impairment of kidney function (listing 6.05), nephrotic syndrome (listing 6.06),
and complications of CKD (listing 6.09). To determine whether an impairment satisfies one of the
genitourinary listings, the Commissioner requires evidence that spans at least 90 days and that
22

"documents the signs, symptoms, and laboratory findings of [claimant's] CKD," including
laboratory findings "such as serum creatinine or serum albumin levels," which document kidney
function. Id. § 6.00(B)(l). If the claimant's medical evidence includes eGFR findings, they will be
considered pursuant to listing 6.05 . Id. § 6.00(B)(2). Pathology reports documenting kidney or
bone biopsies will also be considered, if available, for all genitourinary disorder listings. Id.
§ 6.00(B)(3). If an impairment does not meet the criteria of any genitourinary listing, the ALJ
"must also consider whether [claimant] ha[ s] an impairment( s) that satisfies the criteria of a listing
in another body system." Id. § 6.00(D)(l).
To satisfy the listing for CKD with impairment of kidney function (listing 6.05), the
medical evidence must show:
(A)

Reduced glomerular filtration evidenced by one of the following laboratory
findings documented on at least two occasions at least 90 days apart during
a consecutive 12-month period:
1.
2.

Creatinine clearance of 20 ml/min. or less; or

3.
(B)

Serum creatinine of 4 mg/dL or greater; or

[eGFR] of20 ml/min/l.73m2 or less; AND

One of the following:
1.

Renal osteodystrophy .. . with severe bone pain and imaging studies
documenting bone abnormalities, such as ostetis fibrosa,
osteomalacia, or pathologic fractures; or

2.

Peripheral neuropathy ... ; or

3.

Fluid overload syndrome .. . documented by [any one of four listed
conditions]

To satisfy the listing for nephrotic syndrome (listing 6.06), the medical evidence must
show:
(A)

Laboratory findings as described in 1 or 2, documented on at least two occasions at
least 90 days apart during a consecutive 12-month period:

23

1.

Proteinuria of 10.0g or greater per 24 hours; or

2.

Serum albumin of 3.0 g/dL or less, and
a.
b.

(B)

20

C.F.R.

Proteinuria of 3. 5g or greater per 24 hours; or
Urine total-protein-to-creatinine ratio of 3.5 or greater; AND

Anasarca [general swelling or massive edema] ... persisting for at least 90 days
despite prescribed treatment.
Pt.

404,

Subpt.

P,

app'x

1 § 6.06

(2015);

Medline

Plus,

Swelling,

https://medlineplus.gov/ency/article/003103 .htm (last visited May 18, 2017).
To satisfy the listing for complications of CKD (listing 6.09), the medical evidence must
show "[c]omplications of [CKD] ... requiring at least three hospitalizations within a consecutive
12-month period and occurring at least 30 days apart. Each hospitalization must last at least 48
hours, including hours in a hospital emergency department." 20 C.F.R. Pt. 404, Subpt. P, app'x 1
§ 6.09 (2015).
As with mental impairments, if a genitourinary disorder does not qualify as a listed
impairment under the standards, it may still qualify as a disability if the claimant's RFC does not
allow him to perform the requirements of his past relevant work, or if his limitations, age,
education, and work experience dictate that he cannot be expected to do any other work in the
national economy. 20 C.F.R. §§ 404.1520(e), 416.920(e). The claimant's RFC is determined based
on all of the relevant medical and other evidence in the record, including the claimant's credible
testimony, objective medical evidence, and medical opinions from treating and consulting sources.
20 C.F.R. §§ 404.1520(e), 416.920(e); 404.1545(a)(3), 416.945(a)(3).

V.

THE ALJ'S DECISION
In his September 9, 2015 decision, ALJ Grossman correctly set out the five-step sequential

evaluation discussed above. At the outset, ALJ Grossman found that Paredes was insured through

24

December 31, 2016. (R. 21.) But he concluded that Paredes had not been under a disability from
February 23, 2013 through the date of the decision. (R. 19-29.)
At step one, the ALJ found that Paredes has not engaged in substantial gainful activity
since the alleged onset date, February 23, 2013. (R. 21.)
At step two, the ALJ found Paredes has the following four "severe" impairments: bipolar
disorder; schizoaffective disorder; CKD, Stage IV; and degenerative disc disease, lumbar spine.
(R. 21.)
At step three, the ALJ found that Paredes's impairments did not meet or medically equal
the criteria of any listed impairment. (R. 22.)
The ALJ considered four physical impairment listings: 1.04 (disorders of the spine), 6.05
(CKD, with impairment of kidney function), 6.06 (nephrotic syndrome), and 6.09 (complications
of kidney disease). As to all four of them, he concluded, in a single, two-sentence paragraph, that
the medical evidence of record "does not document signs, symptoms, or laboratory findings
indicating any impairment or combination of impairments severe enough to meet or medically
equal" the requirements of those listings. (R. 22.) The ALJ neither described nor discussed the
individual elements of any of the relevant physical impairment listings.
The ALJ considered two mental impairment listings: 12.03 (schizophrenic, paranoid, and
other psychotic disorders), and 12.04 (affective disorders). As to each, he concluded that the
criteria for these listings had not been met. In making this determination, the ALJ relied on various
treatment notes and consultative reports to find that Paredes did not meet the paragraph B criteria
(R. 23) because he had only a "mild restriction" in his activities of daily living and "moderate
difficulties" in social functioning and concentration, persistence, or pace. (R. 22-23 .) In addition,
the ALJ found that while Paredes had experienced one to two episodes of decompensation, "each

25

of extended duration," his remaining episodes of decompensation were not of sufficient duration.
(R. 23.) The ALJ also found that the paragraph C criteria were not satisfied. Id.
At step four, the ALJ concluded that Paredes has the RFC to perform sedentary work, as
defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), limited to simple tasks and instructions and
occasional contact with supervisors, coworkers, and the general public. (R. 23.) 15 To determine
Paredes' s RFC, the ALJ considered "all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other evidence," as
well as opinion evidence from medical professionals. Id.
The ALJ followed the prescribed two-step process for assessing the credibility of testimony
concerning Paredes's symptoms. First, he determined that there were underlying medically
determinable physical and mental impairments that could reasonably be expected to produce
Paredes's symptoms. (R. 23-24.) Next, he considered the intensity, persistence, and limiting effects
of Paredes's symptoms to determine the extent to which they limit Paredes's functioning. (R. 24.)
The ALJ specifically considered the credibility of the following: (i) Paredes's testimony that he
was not able to stand or walk for more than 20 minutes at a time; (ii) Paredes's testimony that he
had to elevate his legs when sitting and that he could not sit for long periods of time because of
his back pain; (iii) Paredes's testimony that he has memory problems, which make him irritable;
and (iv) Delasantos's testimony that Paredes exhibited erratic behavior when he did not take his

15

"Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met." 20 C.F.R. §§ 404.1567(a), 416.967(a).

26

medications. The ALJ concluded that these statements were "not entirely credible," id., in light of
the medical evidence, including opinions, in the record.
With respect to Paredes' s mental health, the ALJ noted that "when medications were taken
consistently, the claimant reported stable sleep, and good mood." (R. 24.) When Paredes "took
[his] medications regularly," he had "no noticeable side effects," and his "[a]ttention,
concentration, and memory was intact." Id. The ALJ considered but gave "little weight" to the
opinion of Dr. Kirschtein, the FEGS psychiatrist who evaluated Paredes in June 2013, because that
opinion "was not supported by the mental health treatment notes." (R. 25.) The ALJ accorded
"moderate weight" to the opinion of Dr. Grubin, the FEGS physician who stated that Paredes
required a low stress environment with a limited number of people. Id. As the ALJ noted, Dr.
Grubin's opinion was "generally consistent" with the limitations incorporated into his own RFC
assessment, which restricts Paredes to "simple tasks and instructions and limitations in contact and
allowance to be off-task during the workday." Id.
The ALJ gave "some weight" to the opinion of Dr. Damari because, although Dr. Damari
is a specialist who submitted a "detailed report with described clinical findings," her opinion was
based only on a "one-time evaluation." (R. 25.) Finally, the ALJ accorded "partial weight" to the
opinion of state agency psychologist, T. Harding. Id. Although his opinion was based on the
limited medical evidence available at the time of his review on May 9, 2013, it was "not
contradicted by new evidence and is supported by the clinical findings and opinion by Dr. Damari."

Id. The ALJ did find, however, that the record supported more restrictions in Paredes's abilities to
interact with others than Harding found. Id.
The record does not contain any medical source statements or other opinion evidence from
Paredes's treating psychiatrists: Dr. Zilpert, Dr. Shah, and Dr. Danilov. Consequently, although

27

the ALJ considered the treatment notes recorded by those physicians (see R. 24), he could not
consider, nor assign any weight to, their opinions.
Turning from Paredes's mental impairments to his physical challenges, the ALJ noted
Paredes' s "reports of low back pain, which was attributed to degenerative disc disease in the
lumbar spine." (R. 26.) He concluded that " [a]lthough the claimant has received treatment for the
allegedly disabling impairment, that treatment has been essentially routine and/or conservative in
nature. Limitations from this impairment are adequately addressed by restricting the claimant to a
reduced range of sedentary work." Id.
The ALJ also acknowledged that Paredes had CKD, which had been "slowly progressing
since 2011," that his biopsy results "supported a diagnosis of nephropathy, chronic kidney stage
IV," that he was on a transplant list, and that according to Dr. Uday, Paredes's "nephrology
attending physician," he was not yet on dialysis but had gotten a fistula in preparation for dialysis.
(R. 26.) On the other side of the ledger, the ALJ considered the opinion of medical expert Dr.
Gussoff, who testified at the second hearing. In bold, underlined type, the ALJ wrote that Dr.
Gussoff,
an impartial medical expert, testified that despite the claimant's diagnosis and stage
of the chronic kidney disease, the laboratory reports do not indicate a need for
dialysis, as earlier stated by the claimant's treating doctor. After a review of the
records and upon hearing the claimant' s testimony, the doctor stated that there was
absent indications of polyuria, fainting, nor did the evidence indicate any
limitations in the claimant's ability to perform the requirements of sedentary work.
This testimony is accorded great weight, as the doctor was able to review the
medical record in detail. Moreover, the doctor has an understanding of social
security disability programs and evidentiary requirements. Most importantly, his
opinion regarding the claimant's functional limitation is highly probative because
he cited to numerous findings and laboratory reports in the record, which was
discussed during the hearing and in this decision.
(R. 26.) The ALJ did not identify any particular findings upon which he, or Dr. Gussoff, relied in
evaluating Paredes' s CKD.

28

The ALJ also found it significant that Paredes "has engaged in a somewhat normal level of
daily activity and interaction," including "taking the bus independently, performing household
chores, walking for 30 minutes daily, and socializing." (R. 26.) Noting that "[s]ome of the physical
and mental abilities and social interactions required in order to perform these activities are the
same as those necessary for obtaining and maintaining employment," the ALJ reasoned that "[t]he
claimant's ability to participate in such activities undermined the credibility of the claimant's
allegations of disabling functional limitations." Id.
Finally, with respect to Paredes's physical impairments, the ALJ concluded that "the record
does not contain any opinions from treating or examining physicians indicating that the claimant
is disabled or has physical limitations greater than determined in the [RFC] . . . Given the
claimant' s allegations of totally disabling symptoms, one might expect to see some indication in
the treatment records of restrictions placed on the claimant by a treating doctor. Yet a review of
the record in this case reveals no restrictions recommended by the treating doctor." (R. 26-27.)
The ALJ did not discuss the fact that there were no medical source statements in the record from
Paredes's treating nephrologists, orthopedist, or internists, nor any other opinion evidence from
them as to the claimant' s functional limitations. Nor did he discuss his apparent change of position,
between the first hearing and the second, as to whether Paredes should undergo a consultative
examination regarding his physical impairments.
At step five, the ALJ found that Paredes is unable to perform his past relevant work as a
security guard and cleaner, because those jobs require at least light exertional work, while Paredes
is now limited to sedentary work. (R. 27.) Considering Paredes's age, education, work experience,
RFC, and the vocational expert's testimony, however, the ALJ concluded that "there are jobs that
exist in significant numbers in the national economy" that Paredes can perform, including the three

29

jobs identified by the vocational expert. (R. 27-28.) Accordingly, he found that Paredes has not
been under a disability since his alleged onset date.

VI.

ANALYSIS
"This Court may set aside an ALJ's decision only where it is based upon legal error or

where its factual findings are not supported by substantial evidence." McClean v. Astrue, 650 F.
Supp. 2d 223, 226 (E.D.N.Y. 2009) (citing Balsamo v. Chafer, 142 F.3d 75, 79 (2d Cir. 1998)).
Paredes contends that the ALJ erred in finding that he has the RFC to perform sedentary work, and
in particular that he committed three underlying errors that, if remedied, would have led him to
conclude that Paredes is disabled within the meaning of the Act. First, Paredes contends, the ALJ
erred in granting "little" weight to Dr. Kirschtein (FEGS), "moderate" weight to Dr. Grubin
(FEGS), and "great" weight to Dr. Gussoff. Pl. Mem. of Law, dated Apr. 25, 2016 (Dkt. No. 16),
at 2-8. Second, claimant argues, the ALJ failed to sufficiently develop the record. Id. at 8-9. Third,
according to Paredes, the ALJ failed to comply with the Social Security Administration's Hearings,
Appeals, and Litigation Law Manual (HALLEX) 1-2-6-52 when advising him of his right to
representation. Id. at 10-12.
I dispose of the last point first. HALLEX sets forth safeguards and procedures for the
agency's administrative proceedings, and section I-2-6-52(B) requires the ALJ to ensure that
unrepresented claimants have been properly advised of their right to representation. 16 HALLEX is
"simply a set of internal guidelines for the SSA, not regulations promulgated by the
Commissioner," and therefore, a failure to follow HALLEX does not necessarily constitute legal
error. Harper v. Comm 'r ofSoc. Sec., 2010 WL 5477758, at *4 (E.D.N.Y. Dec. 30, 2010). See also

16

In his brief, plaintiff incorrectly references HALLEX I-2-6-52(A) for the "advisement of the
right to representation" requirement.
30

Dority v. Comm 'r ofSoc. Sec., 2015 WL 5919947, at *5 (N.D.N.Y. Oct. 9, 2015) (quoting Edwards
v. Astrue, 2011 WL 3490024, at *6 (D. Conn. Aug. 10, 2011)) ("The Second Circuit has not yet

determined whether or not HALLEX policies are binding; however, other Circuits and district
courts within the Second Circuit have found that 'HALLEX policies are not regulations and
therefore not deserving of controlling weight."'). Moreover, ALJ Grossman did explain that
Paredes could adjourn the hearing and seek a lawyer, but Paredes chose not to . This is sufficient
to satisfy HALLEX I-2-6-52(8), which states that " [t]he ALJ is not required to recite specific
questions regarding the right to representation."
I agree, however, that the ALJ failed to properly develop the record concerning Paredes's
kidney disease, failed to support his conclusion that plaintiffs CKD did not meet or medically
equal the relevant listings, and gave too much weight to the opinion of Dr. Gussoff. Given the
severity of the claimant's underlying condition, the undisputed evidence that he was a candidate
for a kidney transplant, and the lack of any opinion evidence in the record from his treating
nephrologists, the ALJ should have made an effort to obtain such evidence, or - at a minimum obtained evidence from a consultative examiner. Instead, the ALJ relied almost exclusively on the
opinion of Dr. Gussoff, who never examined the claimant and who appeared to overlook
potentially relevant evidence in the record when reaching his conclusions about Paredes' s RFC. In
addition, the ALJ himself failed to discuss the relevant laboratory findings or otherwise provide
an adequate roadmap for his conclusion that Paredes' s CKD did not meet or medically equal the
relevant listings.
A.

Duty to Develop the Record
1.

Standard

"Whether the ALJ has met his duty to develop the record is a threshold question." Hooper
v. Colvin, 199 F. Supp. 3d 796, 806 (S.D.N.Y. 2016). See also Moran v. Astrue, 569 F.3d 108, 112
31

(2d Cir. 2009) ("Before determining whether the Commissioner's conclusions are supported by
substantial evidence, . .. [the court] must first be satisfied that the claimant has had a full
hearing."). The record is fully developed if it is "complete and detailed enough to allow the ALJ
to determine the claimant's" RFC. Roman v. Colvin, 2016 WL 4990260, at *7 (S.D.N.Y. Aug. 2,
2016).
It is the ALJ's obligation to ensure that the record meets this standard. Particularly where
the claimant is unrepresented, the ALJ must make an effort to obtain relevant documentary
evidence. See Thibodeau v. Comm'r ofSoc. Sec., 339 Fed. App'x 62, 63-64 (2d Cir. 2009) (where
pro se claimant lacked documentation concerning his work history, ALJ "should have helped
Thibodeau cure that omission"); Cruz v. Sullivan, 912 F .2d 8, 11 (2d Cir. 1990) (quoting

Echevarria v. Sec '.Y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)) (when claimant
is pro se, the ALJ must "scrupulously and conscientiously probe into, inquire of, and explore for
all the relevant facts.") (internal quotation marks omitted)); Jackson v. Colvin, 2014 WL 4695080,
at *15 (S.D.N.Y. Sept. 3, 2014) (describing the "heightened obligation to ensure both the
completeness and the fairness of the administrative hearing."). If the ALJ has failed to develop the
record, the district court must remand the case for further development. See, e.g., Pratts v. Chafer,
94 F.3d 34, 39 (2d Cir. 1996).
Part of the ALJ' s duty is to seek (or assist a pro se plaintiff to seek) a full report from the
claimant's treating physicians. See 20 C.F.R. §§ 404.1513(b)(6) (2013), 416.913(b)(6) (2013) (the
Commissioner "will request a medical source statement about what [the claimant] can still do
despite [his or her] impairments). Thus, in Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980),
the appellate court held that a remand was required where the ALJ failed to "advise plaintiff that
he should obtain a more detailed statement from his treating physician." See also Price ex rel. A.N

32

v. Astrue, 42 F. Supp. 3d 423, 433 (E.D.N.Y. 2014) (remanding where ALJ denied application
without obtaining opinions or records from treating doctor and psychiatrist); Straw v. Apfel, 2001
WL 406184, at *3 (S.D.N.Y. Apr. 20, 2001) (holding that ALJ failed to provide a full and fair
hearing where, inter alia, he failed to seek information or report from claimant's treating
psychologist); Jones v. Apfel, 66 F. Supp. 2d 518, 524 (S.D.N.Y. 1999) (ALJ failed to sufficiently
develop the record by neglecting to secure any report from claimant's treating physician); Peed v.

Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991) (remanding for failure to secure opinion from
treating physician).
"The duty to develop the record goes hand in hand with the treating physician rule, which
requires the ALJ to give special deference to the opinion of a claimant's treating physician."

Batista v. Barnhart, 326 F. Supp. 2d 345, 353 (E.D.N.Y. 2004). An ALJ cannot, of course, pay
deference to the opinion of the claimant's treating physician if no such opinion is in the record.
Thus, "[c]onsideration of the duty to develop the record, together with the treating physician rule,
produces an obligation that encompasses the duty to obtain information from physicians who can
provide opinions about the claimant. The ALJ must make reasonable efforts to obtain a report
prepared by a claimant' s treating physician even when the treating physician's underlying records
have been produced." Santiago v. Comm 'r ofSoc. Sec., 2014 WL 3819304, at* 17 (S.D.N.Y. Aug.
4, 2014); see also Molina v. Barnhart, 2005 WL 2035959, at *6 (S.D.N.Y. Aug. 17, 2005) (ALJ
must "make every reasonable effort to obtain not merely the medical records of the treating
physician but also a report that sets forth the opinion of [ ] that treating physician as to the
existence, the nature, and the severity of the claimed disability") (internal quotation marks
omitted); 20 C.F.R. §§ 404.1512(d) (2015), 416.912(d) (2015) (the ALJ shall make "every
reasonable effort" to obtain from the individual's treating physician all medical evidence necessary

33

prior to requesting medical evidence from any other source on a consultative basis). Furthermore,
" [b ]ecause ' [t]he expert opinions of a treating physician as to the existence of a disability are
binding on the fact finder,' it is not sufficient for the ALJ simply to secure raw data from the
treating physician. What is valuable about the perspective of the treating physician - what
distinguishes him from the examining physician and from the ALJ - is his opportunity to develop
an informed opinion as to the physical status of a patient." Peed, 778 F. Supp. at 1246.
"That said, the Second Circuit has clarified that ' remand is not always required when an
ALJ fails in his duty to request opinions, ' particularly where 'the record contains sufficient
evidence from which an ALJ can assess [claimant's] residual functional capacity." ' Rivera v.
Comm 'r of Soc. Sec., 2015 WL 6619367, *11 (S.D.N.Y. Oct. 30, 2015) (quoting Tankisi v.
Comm 'r of Soc. Sec., 521 F. App'x 29, 34 (2d Cir. Apr. 2, 2013) (summary order)); see also
Swiantekv. Comm 'r ofSoc. Sec., 588 F. App 'x 82, 84 (2d Cir. 2015) (summary order) ("Given the
extensive medical record ... we hold that there were no ' obvious gaps' that necessitate remand
solely on the ground that the ALJ failed to obtain a formal opinion from one of [claimant's] treating
physicians" with respect to one functional domain). " [C]ourts in this District have found that ' it is
not per se error for an ALJ to make a disability determination without having sought the opinion
of the claimant' s treating physician."' Rivera, 2015 WL 6619367, * 11 (quoting Sanchez v. Colvin,
2015 WL 736102, at *5 (S.D.N.Y. Feb. 20, 2015)).
2.

Application to RFC Determination

The Commissioner argues that ALJ Grossman was not required to take further action to
develop the record under Tankisi and its progeny "since the ALJ already had Dr. Gussoff swellsupported opinion, together with Plaintiffs extensive treatment records." Pl. Br. at 23 (citing
Swiantek, 588 F. App'x at 84; Tankisi, 521 F. App'x at 34; and Pellam v. Astrue, 508 F. App'x 87,
90 n.2 (2d Cir. 2013)). However, in this case, " [u]nlike in Tankisi, the medical records before the
34

ALJ . . . do not ' include an assessment of [Paredes ' s] limitations from a treating physician.' "

Sanchez, 2015 WL 736102, at *6 (quoting Tankisi, 521 F. App'x at 33-34). Consequently, Dr.
Gussoff's opinion "do[es] not provide enough ... information to allow the ALJ to make the
necessary inference that the Plaintiff could perform" sedentary work. Brady v. Colvin, 2016 WL
1448644, at *9 (E.D.N.Y. Apr. 12, 2016).
The only physician to opine on Paredes's exertional (physical) limitations here was Dr.
Gussoff, a non-examining medical expert who based his opinion - that Paredes is capable of
performing sedentary work - entirely on his review of non-opinion medical records from the
claimant' s treating physicians and the claimant's testimony at the second of his two hearings.
(R. 76-77.) In his written decision, the ALJ stated that Dr. Gussoff's opinion was "highly
probative" because he "cited to numerous," albeit unspecified, "findings and laboratory reports."
(R. 26.) However, Dr. Gussoff only mentioned two underlying exhibits during his testimony. 17
Moreover, none of the "findings and laboratory reports" in the record even discussed Paredes's
functional limitations resulting from his CKD. Thus, Dr. Gussoff's opinion was "not sufficiently
detailed to support the ALJ's RFC determination." La Torre v. Colvin, 2015 WL 321881 , at *12
(S.D.N.Y. Jan. 26, 2015) (collecting cases). Here, as in La Torre :
Although they discuss symptoms, diagnoses and treatment plans, [claimant' s]
treatment records do not explain or assess the scope of h[is] work-related
capabilities. No treating medical source opined on [claimant' s] ability to perform
the tasks associated with [sedentary] work. Unlike the ALJ in [Tankisi], [ALJ
17

During his hearing testimony Dr. Gussoffidentified "Exhibit 7-F" (BLHC medical records from
September 16, 2011 through April 3, 2013) and "Exhibit 14" (medical records from Metropolitan
Hospital Center, dating from 2009 to 2011) as bases for his conclusions. (R. 75, 79, 82.) He did
not discuss any other findings or laboratory reports. Dr. Gussoff also noted, several times, that his
opinion was based on the absence of evidence that would support more significant limitations
rather than the presence of evidence that would support his own opinion. (See, e.g., R. 77 ("I don't
have any evidence that he has what is called polyuria, frequent urination"), R. 79 ("[t]here' s no
evidence of anemia")). Moreover, as noted above, Dr. Gussoffwas mistaken when he said he had
no evidence regarding polyuria. (See R. 348-50.)
35

Grossman] did not have even an informal assessment of [claimant's] limitations on
which to rely in making his determination.
2015 WL 321881, at * 12. Despite the gaps in the record, ALJ Grossman "did not contact any of
[Paredes' s] treating physicians for further information" concerning Paredes' s ability to perform
sedentary work. Bush v. Colvin, 2017 WL 1493689, at *6 (S.D.N.Y. Apr. 26, 2017). Nor did he
schedule a consultative examination with a nephrologist or internist. This failure requires remand
for further proceedings.
B.

Substantial Evidence

The ALJ also failed to provide sufficient support for the findings in his decision as they
pertain to Paredes' s physical impairments. A determination of the ALJ may be set aside if it is not
supported by substantial evidence. Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008); Rosa v.

Callahan, 168 F.3d 72, 77 (2d Cir. 1999). "Substantial evidence is 'more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion."' Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v.

Perales, 402 U.S. 389, 401 (1971)). "[I]n order to accommodate 'limited and meaningful' review
by a district court, the ALJ must clearly state the legal rules he applies and the weight he accords
the evidence considered." Rivera v. Astrue, 2012 WL 3614323, at *8 (E.D.N.Y. Aug. 21, 2012)
(citation omitted). An ALJ who fails to provide an adequate roadmap for his reasoning deprives
the court of the ability to determine accurately whether his opinion is supported by substantial
evidence; in these cases, remand is appropriate. Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999);

Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
ALJ Grossman failed to provide a roadmap for his decision that Paredes does not have a
physical impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments. In fact, the ALJ did not set forth any reasoning for this decision,

36

other than the conclusory statement that "the medical evidence of record does not document signs,
symptoms, or laboratory findings indicating any impairment or combination of impairments severe
enough to meet or medically equal the requirements of Listings 1.04, 6.05, 6.06, and 6.09." (R.
22.)
To the extent the Court may surmise that the ALJ relied on Dr. Gussoffs testimony in
concluding that Paredes's CKD did not meet or medically equal the severity of one of the listed
genitourinary disorders, the Court finds that testimony deficient. Dr. Gussoff testified repeatedly
about Paredes's near-normal BUN levels, and the fact that Paredes was not on dialysis, and appears
to have based his opinion largely on those facts. (See R. 74-83.) However, the genitourinary
disorder listings, at the time of the ALJ's decision, did not tum on the claimant's BUN levels.
Listing 6.05, for example, required laboratory findings showing serum creatinine of 4 mg/dL or
greater, creatinine clearance of 20 ml/min. or less, or eGFR of 20 ml/min/1. 73m2 or less. 20
C.F.R. Pt. 404, subpt. P, app'x 1 § 6.05 (2015). Neither Dr. Gussoff nor the ALJ ever mentioned
Paredes's creatinine or eGFR levels. Cf Nunez v. Barnhart, 2007 WL 313459 (S.D.N.Y. Feb. 1,
2007)

(medical

expert

testified

at

hearing

that

claimant's

creatinine

levels

were

normal). This gap in the analysis is particularly troubling given that Paredes's treatment records
appear to show eGFR levels of less than 20ml/min on two occasions almost a year apart. (See R.
573 (eGFR of 19.35 ml/min on January 29, 2014); R. 812 (eGFR of 16.03 ml/min on January 15,
2015)). Consequently, the Court finds that the ALJ's opinion concerning whether Paredes suffered
from a physical impairment that met or equaled listings 6.05, 6.06, and 6.09, the opinion was not
supported by substantial evidence and the case must be remanded for further proceedings.

37

VII.

CONCLUSION
For the foregoing reasons, the Commissioner's motion is DENIED, plaintiffs motion is

GRANTED, and this action is REMANDED to the Commissioner for further proceedings
consistent with this Opinion and Order.
Dated: New York, New York
May _l9, 2017

United States Magistrate Judge

38