Lamboy v. Commissioner of Social Security

Filing 33

OPINION AND ORDER: For the aforementioned reasons, Plaintiff's cross-motion for judgment on the pleadings is GRANTED to the extent it seeks remand and the Commissioner's cross-motion for judgment on the pleadings is DENIED. The case is remanded to the Commissioner for further proceedings consistent with this opinion, and as further set forth in this order. Motions terminated: 27 MOTION for Judgment on the Pleadings, filed by Commissioner of Social Security, 21 MOTION for Judgment on the Pleadings Pursuant to FRCP section 12(c,) filed by Dennis P Lamboy. (Signed by Judge Edgardo Ramos on 8/15/2017) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DENNIS P. LAMBOY,
Plaintiff,

OPINION AND ORDER

-against-

16 Civ. 1197 (ER)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Ramos, D.J.:
Dennis P. Lamboy (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g)
challenging the decision of the Commissioner of Social Security (“Commissioner”) to deny his
application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).
Pending before the Court are the parties’ cross-motions for judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c).
For the reasons stated herein, Plaintiff’s cross-motion is GRANTED to the extent it seeks
remand and the Commissioner’s cross-motion is DENIED. Accordingly, the case is remanded to
the Commissioner for further proceedings consistent with this opinion.
I. BACKGROUND
A. Plaintiff’s Background
Plaintiff was born on July 2, 1952. Tr. at 247. Upon turning eighteen, Plaintiff enlisted
in the Navy, where he served in Vietnam, and received two Bronze Stars for his service. Tr. at
247, 421. He was honorably discharged in May 1972. Tr. at 247. That year he obtained a
general equivalency diploma (“GED”) and subsequently completed two years of college. Tr. at
48, 226, 246–47. From 1992-2011, Plaintiff worked as an admissions representative for various

schools and colleges. Tr. at 216, 226, 248. These jobs entailed recruiting and interviewing
students and also assisting students with financial aid and employment. Tr. at 16, 249. Plaintiff
was laid off by his employer on March 20, 2011. Tr. at 36. For six weeks, from August to
September 2012, Plaintiff worked as a temporary admissions officer. Tr. at 36–37.
B. Plaintiff’s Medical History and the Administrative Record
Plaintiff claims that he became disabled on March 20, 2011, due to anxiety, depression,
post-traumatic stress disorder (“PTSD”), vitiligo, heart disease, and hand tremors. Tr. at 54. He
further claims that he had trouble focusing, was forgetful and sometimes got lost walking, and
had difficulties writing and using his hands because of tremors. Tr. at 234–243. Plaintiff also
suffered from flashbacks of a friend who committed suicide while serving in the Navy. Tr. at
242. These symptoms were managed through a variety of prescription medication, including
Trazadone for insomnia, Sertraline (Zoloft) for anxiety, and Propranolol for his hand tremors. Tr.
at 235, 242–43.
Although the alleged onset date is March 20, 2011, the administrative record is devoid of
any medical history from March 20, 2011 to December 5, 2012. See Tr. 302 (noting gaps in
medical record from 3/11 to 12/12). Additionally, the record consists of 1005 pages, however, a
significant majority are duplicative records of the consultations Plaintiff had between December
5, 2012 and May 28, 2014.
According to Plaintiff’s medical records, 1 on December 6, 2012, Plaintiff went to the
Miami Veterans Administration Hospital (“Miami VA”) after losing his residence. Plaintiff

1

The administrative record also includes medical records from 2005 to 2011, before the alleged onset date. For
example, in 2005, Plaintiff sought help at the Miami Veterans Hospital for PTSD and depression. Tr. at 496–99. He
was unemployed and homeless at this time and claimed that he began having physical and emotional problems,
which made it hard to function. Tr. at 504. Plaintiff acknowledged that he drank daily and also used drugs. Tr. at
505. During this time, Plaintiff was also seen in the dermatology clinic, where he was prescribed a skin ointment to
treat his vitiligo. Tr. at 494–95.

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reported that he had recently moved to Miami from Colorado and that he suffered from
depression and PTSD. Tr. at 429, 433. Plaintiff met with psychiatric resident Dr. Lance Amols,
who evaluated him. Plaintiff told him that he suffered from insomnia, loss of appetite, decreased
energy, decreased concentration, and crying episodes. Tr. at 430. Dr. Amols performed a mental
assessment and noted that Plaintiff’s eye contact was “fair,” his motor function was within
normal limits, his speech was “clear and coherent,” and that his thought processes were
“organized, linear, [and] goal oriented.” Tr. at 431. Dr. Amols diagnosed Plaintiff with major
depressive disorder and moderate and recurrent PTSD. Id. He also assigned Plaintiff a global
assessment functioning (“GAF”) 2 score of 55, which indicates that he has “moderate symptoms”
or “moderate difficulty in social occupational, or social functioning.” Id.
On December 10, 2012, Plaintiff returned to Miami VA complaining of depression and
anxiety. Dr. Alexander Perez, a psychiatrist, evaluated him and found that he was suffering from
major depressive disorder and moderate and recurrent anxiety disorder. Tr. at 421. Dr. Perez
noted that Plaintiff was experiencing anxiety, hyperarousal, irritability, intrusive thoughts,
emotional detachment, poor concentration, and poor/fragmented sleep. Id. Dr. Perez’s notes
indicate that Plaintiff’s cognitive functioning was “grossly intact” and that his thought processes
were “logical.” He also described the efficacy of Plaintiff’s prescription medication as “partial”

2

The GAF scale was used in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders
(“DSM”) and reports an individual's “psychological, social, and occupational functioning” and was viewed as
“particularly useful in tracking the clinical progress of individuals in global terms, using a single measure.”
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed., text rev. 2000). A GAF score between 51 and 60
indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate
difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or co-workers).” Id. at
34 A GAF score between 61 and 70 indicates “[s]ome mild symptoms (e.g. depressed mood and mild insomnia) OR
some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the
household), but generally functioning pretty well, has some meaningful interpersonal relationships.”). The GAF
scale was not included in the most current edition of the DSM. See Diagnostic and Statistical Manual of Mental
Disorders 32 (5th ed., 2013).

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and increased his medication, and provided supportive therapy. Id. at 422. Dr. Perez also gave
Plaintiff a GAF score of 55.
On December 20, 2012, Plaintiff met with Doctor Samuel Neuhut, a psychiatric resident,
who also diagnosed Plaintiff with major depressive disorder and moderate PTSD. Tr. at 396.
Plaintiff told Dr. Neuhut that he experienced insomnia, despite taking medication, and anxiety.
Tr. at 397. With respect to Plaintiff’s mental status, Dr. Neuhut reported that he was cooperative
and had good eye contact. Plaintiff’s speech was clear and his concentration and judgment were
“fair.” Id. Dr. Neuhut determined that his GAF score was 55 and switched Plaintiff’s
medications to Sertraline and Trazodone. Tr. at 398.
On February 7, 2013, Plaintiff went to Miami VA after he lost consciousness while
standing in front of the Salvation Army, where he was staying. Tr. at 328. He was admitted and
stayed overnight. Plaintiff explained to the medical staff that he had not been adequately eating
or drinking, who concluded that the episode was most likely due to dehydration and tachycardia
from amphetamine use. Tr. at 356. Plaintiff was also found to be at a moderate risk for falling.
Tr. at 343. Plaintiff was discharged, but because he was homeless, a social worker was called to
help him find immediate placement. Tr. at 341. The social worker arranged for Plaintiff to take
a bus to New York, where he would stay with his sister. Tr. at 335.
On April 22, 2013, Plaintiff went to Hudson Valley Hospital (“Hudson Valley”) in New
York for an initial evaluation. Tr. at 844. He was evaluated by Dr. Mukta Samir Sharma.
Plaintiff reported that he was feeling “great” and requested to see a dermatologist for his vitiligo
and a specialist for his hand tremors. Tr. at 835. He further claimed that Trazadone did not help
his insomnia and that he had not taken Sertraline in the previous four weeks. Id. After a
physical examination, Dr. Sharma noted that Plaintiff was alert and that his speech and affect

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were appropriate. Tr. at 846. Dr. Sharma referred Plaintiff to the mental health, dermatology,
and neurology clinics. Tr. at 847.
Two days later, on April 24, Plaintiff met with Dr. Alexandra Berger, a staff psychiatrist.
Tr. at 812. He told Dr. Berger that he was having nightmares, had poor sleep, and auditory
hallucinations in the form of hearing “people’s conversations.” Id. Plaintiff denied any suicidal
ideations and admitted to drinking three-to-four beers occasionally. Id. Dr. Berger noted that
Plaintiff’s thought processes were logical and goal oriented and that his speech was normal. Id.
She also scheduled Plaintiff for a full mental health evaluation.
On May 21, 2013, Plaintiff was seen at the dermatology, neurology, and psychiatric
clinics. Plaintiff met with a dermatologist who prescribed him skin ointment to help with his
vitiligo. Tr. at 758–60, 772. He next met with Dr. Seshura Kruthiventi, in neurology, to address
his hand tremors. Tr. at 776. Plaintiff claimed that due to the tremors, he was having trouble
performing his daily activities. Id. Dr. Kruthiventi determined that the tremors were related to
his alcohol withdrawal. He prescribed Plaintiff Propranolol and advised him about the further
risks of alcohol consumption. Tr. at 778. Plaintiff also met with Dr. Berger for a psychiatric
evaluation and a suicide assessment. Plaintiff told her that although he was not feeling depressed
at the time of the visit, he was experiencing stress and occasional anxiety and hand tremors. Dr.
Berger noted that he had no suicidal ideations and did not complain of severe emotional distress,
anxiety, or panic symptoms that day. Tr. at 779–779. He also appeared calm and cooperative,
had a mild left hand tremor, and a linear thought process. Tr. at 783. Dr. Berger assigned him a
GAF score of 65, indicating that he had some “mild symptoms.” Tr. at 767, 783.
Plaintiff returned to the hospital for a follow up examination with Dr. Berger on June 19,
2013. He reported experiencing depression, lack of focus, memory loss, anxiety, insomnia, and
nightmares. Tr. at 765. He also claimed that he was feeling better since taking the prescribed
5

medication, but still experienced lack of focus and occasional nightmares. Tr. at 765. Dr. Berger
noted that his memory was “grossly intact” and that he was attentive and appeared to be in a
good mood. Based on Plaintiff’s symptoms and her assessment, Dr. Berger diagnosed Plaintiff
with depression/anxiety disorder, major depressive disorder, PTSD, and polysubstance abuse. Tr.
at 767. She increased his Sertraline and Trazadone dosage and provided supportive counseling.
Dr. Berger assigned him a GAF score of 65. Id.
Plaintiff met with Dr. Berger again on July 31, 2013. He told her that he needed to refill
his prescriptions because the Sertraline was helping him with his anxiety and the Trazodone
helped him sleep. Tr. at 818. However, he denied feeling less depressed on the medication. Id.
Dr. Berger found Plaintiff’s memory to be “grossly intact” and his mood/affect as “euthymic/full
range.” Id. She concluded that he was fairly stable on his prescribed medication regimen and
referred him to Dr. Iva Lesniak for further evaluation. Tr. at 820.
Plaintiff met with Dr. Lesniak on August 30, 2013 and attended follow-up meetings with
her approximately every two months. At the first meeting in August, Plaintiff complained of
anxiety and depression, but again noted that his medications helped address his anxiety and
insomnia. Tr. at 866. He also reported to have memory problems and problems concentrating.
Id. He explained to Dr. Lesniak that he lost his job because he could not focus and because of
his hand tremors, which made it difficult for him to write. Tr. at 868. Dr. Lesniak assigned him
a lower GAF score of 55. She also advised Plaintiff to cease alcohol consumption. Tr. at 869.
The next follow-up meeting was on October 23, 2013. Plaintiff reported that he was
feeling better but that he was still experiencing hand tremors. Tr. at 952. He also claimed to
have heard a voice telling him to harm himself, but denied having any paranoid ideations. Tr. at
953. Dr. Lesniak noted that there was conflicting information in Plaintiff’s chart regarding the
friend’s suicide. Plaintiff had previously reported that his friend died while in combat, but that
6

day, Plaintiff denied being in combat. Tr. at 953. Dr. Lesniak increased Plaintiff’s dosage of
Sertraline and advised Plaintiff to contact his primary care physician regarding his poor
concentration, depression, and memory problems. Tr. at 955.
Plaintiff met with Dr. Lesniak again on November 20, 2013. He reported that he felt a
slight improvement in his symptoms and that his depression was a “7/10.” Tr. at 945. He also
reported having had visions, but no suicidal ideations. Id. Dr. Lesniak again increased his
Sertraline intake and suggested that he see his primary care physician or a neurologist to address
the visions. Id. at 948. He also assigned Plaintiff a GAF score of 55. Tr. at 949. At the January
15, 2014 follow-up, Plaintiff reported feeling better—feeling less depressed and anxious—since
they increased his Sertraline dosage. Tr. at 940. He also stated that he had been arguing with his
sister and described it as a chronic stressor. Id. Dr. Lesniak provided helpful coping
mechanisms and suggested that Plaintiff return for an evaluation in two months. Plaintiff
returned on March 28, 2014 and reported feeling better, but still claimed to have trouble focusing
and multitasking. Tr. at 934. He also claimed to forget where he placed things. Tr. at 935. Dr.
Lesniak concluded that Plaintiff was not an imminent danger to himself or others and that he was
not psychiatrically unstable. Tr. at 935. After reviewing his medication regimen, Dr. Lesniak
advised Plaintiff to return in two months. Tr. at 938. At his evaluation on May 28, 2014—the
last one in the administrative record—Plaintiff reported feeling depressed four times a month and
having mild anxiety. Tr. at 928. He also said that he had started hearing a voice, but denied
having any hallucinations. Dr. Lesniak increased Plaintiff’s dosage of Sertraline and discussed
the potential of adding medications to his regimen. Tr. at 931. Dr. Lesniak again assigned
Plaintiff a GAF score of 55. The administrative record contains no assessments as to Plaintiff’s
mental ability or capacity to perform tasks.

7

In addition to Plaintiff’s medical records, the administrative record also includes a letter
from Theo Gibbings, Plaintiff’s friend and an employee from a school in which Plaintiff
previously worked. Tr. at 888. Mr. Gibbings first met Plaintiff in June 2005 when he applied for
a job as an admissions representative. In the letter, Mr. Gibbings explained that Plaintiff
appeared to be getting worse—he often lost his balance, his hands would shake, and at times
cried uncontrollably. He also claimed that Plaintiff showed signs of “greater depression.” Id.
C. Plaintiff’s Application for Disability Benefits
Plaintiff applied for DBI and SSI in April 2013, alleging disability as of March 20, 2011.
Tr. at 177, 186. By Notice of Disapproved Claim dated September 24, 2013, the SSA denied
Plaintiff’s claim. Tr. at 89–103. Plaintiff requested a hearing before an administrative law judge
(“ALJ”) and on July 16, 2014 appeared at a hearing before ALJ Denis Katz. Tr. 33–53. In a
decision dated September 2, 2014, the ALJ denied Plaintiff’s claim, concluding that he was not
disabled. Tr. at 15–32.
An individual is considered “disabled” under the Social Security Act if he is unable “to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
In order to determine whether an individual is disabled, the Commissioner follows a five-step
sequential evaluation process set out in 20 C.F.R. § 404.1520. “If at any step a finding of
disability or nondisability can be made, the [Social Security Administration] will not review the
claim further.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
At step one, the Commissioner determines whether the individual is engaged in any
“substantial gainful activity;” if he is, he is not disabled. 20 C.F.R. § 404.1520(a)(4)(i), (b). At
step two, the Commissioner determines whether the individual has a “severe impairment” that
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“significantly limits [his] physical or mental ability to do basic work activities;” if he does not,
he is not disabled. Id. § 404.1520(c), (a)(4)(ii). At step three, the Commissioner determines
whether the individual has an impairment that meets or equals one of those listed in Appendix 1;
if he does, he is disabled. Id. § 404.1520(a)(4)(iii), (d). If he does not, the Commissioner will
assess and make a finding about the individual’s residual functioning capacity (“RFC”)—or “the
most [he] can still do despite [his] limitations”—based on all the relevant medical and other
evidence in his case record. Id. §§ 404.1520(e), 404.1545(a)(1). At step four, the Commissioner
determines whether, considering his RFC, the individual can still do his past relevant work; if he
can, he is not disabled. Id. § 404.1520(a)(4)(iv), (f). Finally, at step five, the Commissioner
determines whether, considering his RFC, age, education, and work experience, the individual
can make adjustment to other work; if he cannot make adjustment to other work, he is disabled,
and if he can, he is not. Id. § 404.1520(a)(4)(v), (g).
Here, the ALJ found that: (1) Plaintiff met the insured status requirements of the Social
Security Act; (2) Plaintiff had not engaged in substantial gainful activity since March 20, 2011,
the alleged disability onset date; (3) Plaintiff had severe impairments, including posttraumatic
stress disorder, depression, and alcohol/polysubstance abuse in remission; (4) Plaintiff’s
impairments did not meet or medically equal the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (“Appendix 1”); (5) Plaintiff has the RFC to perform a
full range of work at all exertional levels but is limited to the performance of basic unskilled
work tasks in that he can understand, remember and carry out short/simple instructions and
perform, routine, repetitive work but cannot perform highly complex work with which he is not
familiar; (6) Plaintiff is capable of performing past relevant work as an admissions counselor; (7)
Plaintiff was 60 years old on the disability onset date; (8) Plaintiff has at least a high school
education and is able to communicate in English; (9) the transferability of job skills was not
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material to the determination of disability because Plaintiff is not disabled; and (10) considering
Plaintiff’s age, education, work experience, and RFC, there are other jobs that exist that he can
perform. Tr. at 20–26.
In determining Plaintiff’s RFC, the ALJ first considered Plaintiff’s hearing testimony. At
the hearing, Plaintiff testified that he worked as an admissions officer for a period of six weeks
from August to September 2012—significantly after his alleged onset date of March 20, 2011.
Tr. at 36–37. Plaintiff further explained that he was fired in March 2011 because his employer
saw that he could no longer perform the tasks required for his position. Tr. at 38. He also
informed the ALJ that his hand tremors hindered his ability to write. Tr. at 39. When the ALJ
asked Plaintiff how his mental illness affected his ability to work as an admissions
representative, he responded by providing the example of how he became lost one block away
from the Salvation Army where he was staying. Tr. at 40. He said that he could not find his way
back and became very anxious, upset, and frustrated. Id. When Plaintiff’s counsel asked him to
further elaborate, Plaintiff explained that he no longer had control of his faculties. Tr. at 45.
Specifically, he said that he could no longer type or write reports and that his bouts of anxiety
and loss of concentration would also significantly interfere with his ability to work as an
admissions officer. Id.
The ALJ also noted that Plaintiff had applied for unemployment insurance benefits
through the New York State Department of Labor (“DOL”) representing to the DOL that he was
able to and actively looking for work. Tr. at 22. The ALJ found that Plaintiff’s representations
to the DOL were inconsistent with those in his application to the Social Security Administration
and thus concluded that Plaintiff “was not a totally reliable witness.” Tr. at 23. The ALJ further
noted that Plaintiff testified that he had a history of alcohol abuse but had not consumed alcohol
in the three years preceding the petition and that he suffered from long-term depression but was
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nevertheless capable of working until he was laid off. Id. Plaintiff also testified that he took
psychotropic medications to control his depressive symptoms, has no physical problems, and has
continued to apply for work. Id.
The ALJ also relied on Dr. Berger’s medical notes from Plaintiff’s care at Hudson Valley.
Dr. Berger noted a history of combat trauma, PTSD and complaints of nightmares, poor sleep,
and auditory hallucinations. Id. As of July 31, 2013, Dr. Berger noted that Plaintiff was “fairly
stable” and “was not suicidal.” Id. The ALJ noted that Plaintiff was given supportive therapy
and his prescriptions for Sertraline and Trazodone were continued. He found that the
psychotropic medication was “adequately control[ing] his psychiatric symptoms.” Id.
The ALJ also considered Dr. Lesniak’s medical notes. As of August 30, 2013, Dr.
Lesniak made similar observations to Dr. Berger and also noted that Plaintiff’s prescribed
Sertraline had considerably decreased his anxiety and that the Trazodone helped him sleep. Id.
Dr. Lesniak also noted that Plaintiff’s thought processes appeared intact and there was no
evidence of delusions, hallucinations, suicidal or higher homicidal ideation. Id. The ALJ
highlighted that Plaintiff informed Dr. Lesniak that he was drinking six to ten drinks once every
two weeks—which greatly differed from his testimony at the hearing. Tr. at 24. The ALJ then
listed Plaintiff’s subsequent sessions with Dr. Lesniak, in which he complained of difficulty
sleeping, depression, and periodical passive suicidal ideation. Id. Dr. Lesniak assigned Plaintiff
a GAF score of 55, which the ALJ acknowledged was “indicative of moderate symptoms.” Id.
By May 20, 2014, Plaintiff complained of bouts of depression approximately four times of
month, periodic anxiety, auditory hallucinations, and periodic suicidal feelings. Id.
Based on a review of the evidence, the ALJ found that Plaintiff’s medically determinable
impairments “could reasonably be expected to cause some of the alleged symptoms.” Id.
However, he found that Plaintiff’s claims as to the intensity, persistence, and limiting effects of
11

the symptoms were not supported by the medical record. Id. The ALJ noted that although
Plaintiff claimed he had a history of depression, PTSD, and periodic alcohol abuse, none of these
factors prevented him from maintaining employment. Id. Further, the ALJ also found that his
conditions could be controlled by medication and that there was no evidence of any cognitive
deficit therefrom. Id. The ALJ concluded that the likelihood that Plaintiff would suffer from
deficits in concentration due to his medical conditions did not preclude him from being able to
perform unskilled work tasks. Tr. at 25. The ALJ stated that his decision was consistent with the
notes from Hudson Valley, which showed that Plaintiff’s mental condition “was not at such
severity for any 12 month period of time during which his mental condition was not stable.” Id.
The ALJ also solicited the testimony of Linda Stein, a vocational expert, to help assess
the complexity and exertion level of Plaintiff’s past employment. Stein classified Plaintiff’s
admissions counselor position in three ways: first, as admissions counselor, and claimed that the
position had an SVP 3 level of 5; second, as financial aid counselor, also with an SVP of 5; and
third, as student placement service, which has an SVP of 8. Tr. at 50. In response to the ALJ’s
question regarding the intellectual demands of these positions, Stein explained that the positions
were considered “highly skilled,” the intellectually reasoning “would be considered high,” as
well as math and language. Tr. at 51. Stein further clarified that the position was intellectually
demanding and required executive decision making and functioning. Id. She, however, did not
testify as to Plaintiff’s ability to perform those tasks. Upon consideration of the administrative

3

“SVP” stands for “specific vocational preparation,” and refers to the amount of time it takes an individual to learn
to do a particular job. Jeffrey Scott Wolfe & Lisa B. Proszek, Social Security Disability and the Legal Profession
163 (2002). SVP uses a scale from 1 to 9 and the higher the SVP number the greater the skill required to do the job.
Id; see also Urena-Perez v. Astrue, No. 06 Civ. 2589 (JGK) (MHD), 2009 WL 1726217, at *40 (S.D.N.Y. Jan. 6,
2009), report and recommendation adopted as modified, No. 06 Civ. 2589 (JGK), 2009 WL 1726212 (S.D.N.Y. June
18, 2009).

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record and the testimony at the hearing, the ALJ held that Plaintiff was not disabled under
Sections 216(i), 223(d), and 1614(a)(3)(A), and was thus not entitled to receive DIB or SSI.
Plaintiff asked the Appeals Council to review the ALJ’s decision. Tr. at 12–13. On
December 10, 2015, Plaintiff’s request was denied, rendering the ALJ’s decision the final
decision of the Commissioner in his case. Tr. at 1–4. On February 16, 2016, Plaintiff appealed
the decision by filing the Complaint in this action. No. 16 Civ. 1197 (ER), Doc. 1. The parties
thereafter cross-moved for judgment on the pleadings. See Docs. 21, 27.
II. STANDARD OF REVIEW
Section 405(g) allows an individual to obtain judicial review of a final decision of the
Commissioner in the “district court of the United States for the judicial district in which the
plaintiff resides.” 42 U.S.C. § 405(g). “In reviewing a final decision of the Commissioner, a
district court must determine whether the correct legal standards were applied and whether
substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004).
Substantial evidence is “more than a mere scintilla” and means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Selian v. Astrue, 708 F.3d
409, 417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal
quotation marks and alterations omitted).
To determine whether substantial evidence exists to support the Commissioner’s final
decision, the reviewing court must consider the whole record, weighing the evidence on both
sides of the question to ensure that the claim has been fairly evaluated. Calzada v. Asture, 753 F.
Supp. 2d 250, 268 (S.D.N.Y. 2010) (internal quotations omitted); see also Selian, 708 F.3d at 417
(“[T]he reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn.”). Upon review, the
district court may “enter, upon the pleadings and transcript of the record, a judgment affirming,
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modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
III. DISCUSSION
A. Development of the Medical Record
i.

Duty to Develop

Plaintiff’s sole challenge to the ALJ’s decision is that he failed to adequately develop the
medical record by not requesting medical reports from any treating or consultative physicians or
psychiatrists. Memorandum of Law in Support of Plaintiff’s Motion for Judgment on the
Pleadings (“Pl. Memo”) (Doc. 22) at 11. Specifically, Plaintiff asserts that the ALJ was obligated
to make some effort to secure a medical opinion from Dr. Lesniak, his treating physician.
Plaintiff claims that he provided Dr. Lesniak’s contact information, but the ALJ made no efforts
to contact her. Id. Thus, because the record lacks any medical reports or opinions the ALJ had
no adequate basis to assess the degree of Plaintiff’s RFC. Id. In response, the Commissioner
concedes that the ALJ failed to request a medical opinion as required by statute, but argues the
ALJ committed harmless error because the record was sufficient to support his finding.
Memorandum of Law in Support of Defendant’s Cross-Motion for Judgment on the Pleadings
and in Opposition to Plaintiff’s Motion for Judgment on the Pleadings (“Def. Memo”) (Doc. 28)
at 17–24.
It is the well-established rule in our circuit that the ALJ in social security cases, unlike a
judge in a trial, must on behalf of all claimants—even those represented by counsel—
“affirmatively develop the record in light of the essentially non-adversarial nature of a benefits
proceeding.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Lamay v. Comm’r of
Soc. Sec., 562 F.3d 503, 508–09 (2d Cir. 2009)). Specifically, the ALJ is required to develop a
claimant’s complete medical history. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (citing 20
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C.F.R. §§ 404.1512(d)–(f)); see also 42 U.S.C.A. § 423 (“In making any determination the
Commissioner . . . shall make every reasonable effort to obtain from the individual’s treating
physician (or other treating health care provider) all medical evidence, including diagnostic tests,
necessary in order to properly make such determination.”). The ALJ’s duty to develop the
administrative record “encompasses not only the duty to obtain a claimant’s medical records and
reports but also the duty to question the claimant adequately about any subjective complaints and
the impact of the claimant’s impairments on the claimant’s functional capacity.” Pena v. Astrue,
No. 07 Civ. 11099 (GWG), 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008).
Whether the ALJ has met his duty to develop the record is a threshold question. Before a
court can determine whether the Commissioner’s final decision is supported by substantial
evidence under Section 405(g), “the court must first be satisfied that the ALJ provided plaintiff
with a full hearing under the Secretary’s regulations and also fully and completely developed the
administrative record.” Craig v. Comm’r of Soc. Sec., 218 F. Supp. 3d 249, 261 (S.D.N.Y. 2016)
(internal quotations omitted). “Where the ALJ has failed to develop the record adequately,
remand to the Commissioner for further development is appropriate.” Norman v. Astrue, 912 F.
Supp. 2d 33, 74 (S.D.N.Y. 2012); see, e.g., Moran, 569 F.3d at 114–15 (“We vacate not because
the ALJ’s decision was not supported by substantial evidence but because the ALJ should have
developed a more comprehensive record before making his decision.”).
ii.

Determining RFC

The RFC assessment is an ALJ’s finding of “the most [a claimant] can still do despite his
limitations.” 20 C.F.R. § 404.1545(a). An ALJ considers medical source statements and all
other evidence in the case record in making an RFC finding. Id. (“[The ALJ] will assess your
residual functional capacity based on all the relevant evidence in your case record.”); SSR 96-5p,
1996 WL 374183 (July 2, 1996). “A medical source statement is an evaluation from a treating
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physician or consultative examiner of what an individual can still do despite a severe
impairment, in particular about an individual’s physical or mental abilities to perform workrelated activities on a sustained basis.” Hooper v. Colvin, 199 F. Supp. 3d 796, 812 (S.D.N.Y.
2016) (internal quotation marks omitted). Because of the special evidentiary weight given to the
opinion of the treating physician, the 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 the treating physician as to the existence, the nature, and the severity of the claimed
disability.” Molina v. Barnhart, No. 04 Civ. 3201, 2005 WL 2035959, at *6 (S.D.N.Y. Aug. 17,
2005) (internal quotation marks omitted).
Nevertheless, in non-precedential opinions, the Second Circuit has suggested that an
ALJ’s failure to obtain a medical source statement from a treating physician before making a
disability determination may not necessarily require a remand. See Swiantek v. Comm’r of Soc.
Sec., 588 F. App’x 82, 84 (2d Cir. 2015); Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (2d
Cir. 2013). The Circuit recommended that the determination that an administrative record is
incomplete without a medical source statement be made on a case-by-case basis, depending on
the “circumstances of the particular case, the comprehensiveness of the administrative record,”
and “whether . . . [the record,] although lacking the opinion of [the] treating physician, was
sufficiently comprehensive to permit an informed finding by the ALJ.” Sanchez v. Colvin, No.
13 Civ. 6303 (PAE), 2015 WL 736102, at *5–6 (S.D.N.Y. Feb. 20, 2015) (citing Tankisi, 521 F.
App’x. at 33–34). For an ALJ to make a disability determination without seeking any treating
physician opinion, there must be “no obvious gaps in the administrative record,” and the ALJ
must “[possess] a ‘complete medical history.’” Rosa v. Callahan, 168 F.3d 72, 83 n.5 (2d Cir.
1999) (quoting Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)).

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iii.

Analysis of the ALJ’s Decision

The Court finds that the ALJ failed to fully develop the evidentiary record given the lack
of medical opinion evidence regarding Plaintiff’s functional limitations caused by his mental
impairments. Accordingly, the Court cannot conclude that the ALJ evaluated Plaintiff based on
a complete record. See Hooper, 199 F. Supp. 3d at 806 (finding that ALJ failed to obtain
comprehensive assessments from treating or consultative physicians of plaintiff’s mental
impairments and remanding case).
First, the medical record here is far from complete. The administrative record is devoid
of any medical notes, assessments, and testimony from March 20, 2011—the alleged onset
date—to December 6, 2012. Significantly, the administrative record also does not include a
single treating or consultative physician’s medical source statement. See Tr. at 73 (noting in
initial disability claim that “no indication that there is opinion evidence from any source”).
Additionally, the medical notes in the record do not contain any statements regarding Plaintiff’s
capacity to engage in tasks or activities. Instead, the doctors who evaluated Plaintiff assigned
him GAF scores, mostly indicating that he had “moderate difficulty in social occupational, or
social functioning.” This informal assessment is too vague to allow the ALJ to make an
informed decision on Plaintiff’s capabilities. This is especially the case here where mental
impairments are at issue. See Sanchez, 2015 WL 736102, at *7 (noting the necessity of obtaining
treating physician’s opinion where plaintiff suffers from long-term mental disorder because the
“gravity and impact var[ies] by individual”).
Moreover, the Commissioner’s reliance on Tankisi and Swiantek does not cure this error.
In both cases, the Second Circuit emphasized the extensiveness of each plaintiff’s administrative
records. In Tankisi, the Court noted that the medical record was “quite extensive” and that
although it did not contain any formal opinions from the treating physician, it did include an
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assessment of plaintiff’s limitations from a treating physician. Tankisi, 521 F. App’x at 34. It
also included a state consultative examiner’s assessment. Id. In Swiantek, the Court also
characterized the record as “extensive” and, relying on Tankisi, found the record to be sufficient
because it included a psychiatric evaluation from a consultative psychologist who personally
examined plaintiff and her complete medical history. Swiantek, 588 F. App’x at 84. The
additional cases cited by the Commissioner where remand had been denied are similarly
distinguishable. See Johnson v. Colvin, 669 F. App’x 44, 47 (2d Cir. 2016) (including in record a
consultative psychiatric evaluation which stated that plaintiff had no limitations with respect to
his ability to understand and follow simple directions and perform simple tasks); Liang v. Comm.
of Soc. Sec., No. 15 Civ. 7764 (HBP), 2017 WL 934715, at 5-6 (S.D.N.Y. Mar. 9, 2017)
(including, at the request of SSA, a consultative examination of plaintiff and assessment by state
agency psychologist in which both examiners found plaintiff to have only moderate limitations
in her ability to understand and remember detailed instructions—even despite treating
physician’s assignment of a GAF score of 50). Though a question remains as to what a medical
record must contain in order to be deemed complete for the purposes of the ALJ’s RFC
determination, what is clear from the caselaw is that at least one formal assessment of
functionality by a medical professional—either treating or consultative—is required. The record
in this case does not include any.
Second, the ALJ does not address the significance, if any, of the substantial changes
reflected in the medical records. Although the ALJ characterized Plaintiff’s condition as
“controlled,” it is clear from the records that Plaintiff continued to complain of the same
symptoms with each visit—though there were some improvements—and that the doctors
continued to change his prescriptions. In fact, during Plaintiff’s May 28, 2014 visit with Dr.
Lesniak, she discussed the possibility of adding medication to his regimen to further address his
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ailments. The ALJ also relied on but did not note the change in GAF score reflected in the
doctors’ notes. In December 2012, Dr. Amols assigned Plaintiff a GAF score of 55. In May and
June 2013, Dr. Berger assigned Plaintiff a higher GAF score of 65, but two months later, in
August, Dr. Lesniak determined that his capabilities were better characterized with a score of 55.
Notwithstanding the fact that courts have questioned whether GAF scores actually
provides a reliable basis for disability determinations, the change in Plaintiff’s functioning in
such a short time period, should have indicated to the ALJ that more information was needed to
determine the effect of Plaintiff’s mental impairments on his ability to function. See Berry v.
Comm’r of Soc. Sec., No. 14 Civ. 3977 (KPF), 2015 WL 4557374, at *3 (S.D.N.Y. July 29,
2015) (“The utility of this metric is debatable, particularly after its exclusion from the fifth
edition of the Diagnostic and Statistical Manual of Mental Disorders.”); Mainella v. Colvin, No.
13 Civ. 2453, 2014 WL 183957, at *5 (E.D.N.Y. Jan. 14, 2014) (“[T]he GAF score is not
designed to predict outcomes, and the scores are so general that they are not useful without
additional supporting description and detail.”) (citing to Social Security Administration bulletin
dated July 31, 2013, limiting use of GAF scores). Importantly, outside of Plaintiff’s own reports
and the letter submitted by Mr. Gibbings, there are no other notes regarding Plaintiff’s ability to
perform daily tasks and activities. Plaintiff claimed that he only went outside to attend hospital
visits and go grocery shopping, which he had to do accompanied by his sister. Tr. at 237. He
claimed that he could not go out alone because he sometimes forgot where he was. Id. Plaintiff
also stated that he could not prepare food for himself, and that his sister woke him up and
reminded him to take his medications. Tr. at 236–37. Plaintiff also has difficulty socializing and
prefers to speak to people over the phone instead of in person. Tr. at 237, 243. Mr. Gibbings
claimed that Plaintiff sometimes lost his balance and that he had trouble writing due to his hand
tremors. Tr. at 888. There are no opinions from Plaintiff’s doctors indicating whether his mental
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