Rapaport v. Commissioner of Social Security

Filing 21

REPORT AND RECOMMENDATION re: 17 CROSS MOTION for Judgment on the Pleadings filed by Commissioner of Social Security; 14 MOTION for Judgment on the Pleadings filed by Aaron Rapaport; 2 Complaint filed by Aaron Rapa port. For the foregoing reasons, I recommend that the Commissioner's motion for judgment on the pleadings (Docket no. 17) be granted, the plaintiff's motion (Docket no. 14) be denied, and the complaint be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Cle rk of the Court, with extra copies delivered to the chambers of the Honorable Vernon S. Broderick, Room 415, 40 Foley Square, New York, New York 10007 and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. (Objections to R&R due by 4/19/2017.) (Signed by Magistrate Judge James C. Francis on 4/5/2017) Copies Transmitted this Date By Chambers. (anc)

He graduated from high school in 2004, completed college, and
later received a master’s degree in library science in 2011.
(R. at 477).

In 2011, he engaged in a short-term program to

train as a reference librarian, which required him to stand,
sit, kneel, crouch and reach at various times during the day.
(R. at 162).

From 2012 until 2013, he was employed part-time as

a library assistant in New City, assisting in library selections
and

book

data

management.

responsibilities

as

a

library

(R.

at

121,

assistant

160).

required

throughout the day and lift less than 10 pounds.
61).

His
him

job

to

sit

(R. at 160-

His job duties as a library trainee required him to stand,

sit, kneel, crouch, and reach at various times during the day.
(R. at 162).

Mr. Rapaport left employment at the library in

approximately 2013 and has not been employed since.
B.
Medical,
Evaluations

1.

Educational,

and

Employment-Related

Early Evaluations

Mr. Rapaport’s claim to disability relates to developmental
and psychiatric issues.

He was born at 32 weeks gestation, at

which time there was “no evidence of intracerebral bleeding” but
there was the possibility of a maternal viral infection.
289).

(R. at

Mr. Rapaport received CT scans in 1986, shortly after he

was born, and in 1989.

(R. at 292, 290).
2

Although his family

noted no physical problems (R. at 289), Dr. Michael Harned and
Dr.

Irvin

Kricheff

hydrocephalus in 1991.

diagnosed

Mr.

Rapaport

with

severe

(R. at 302).

In a letter that same year, Dr. Isabelle Rapin observed
that

Mr.

Rapaport

presented

“mild motor clumsiness.”

“semantic-language

(R. at 332).

syndrome”

and

She stated that he

appeared to suffer from Asperger’s syndrome and noted that he
was working with a psychologist.

(R. at 332).

Dr. Rapin added

that Mr. Rapaport was “doing well and should continue to do
well.”

(R. at 332).

In

1992,

Dr.

Diana

Kurtzberg

exhibited a mild hearing impairment.
speech

therapy

three

times

a

noted

that

Mr.

(R. at 312).

week

at

Rapaport

He received

school

as

occupational therapy and speech therapy at home.

well

as

(R. at 303).

At about the same time, Dr. Rapin noted that Mr. Rapaport had
adequate reading comprehension and “spoke very clearly in long
sentences.”
display

any

(R.

at

“abnormal

himself at times.

333).
posture

She
or

also

noted

movement,”

that

he

but

did

did
talk

not
to

(R. at 333).

In 1993, Mr. Rapaport was initially classified as a student
in

need

of

special

education

services

classification of “emotional disability.”

and

received

(R. at 351-52).

the
An

Individualized Education Plan (“IEP”) from 2000 noted that his
3

school

district

educational

in

services:

New

City

services

in

recommended
English,

the

math,

following
and

social

studies for one period each, five days a week; counseling once a
week for one period; speech and language services two days a
week for 30 minutes; and occupational therapy once a week for 30
minutes.

(R. at 350).

The IEP recommended that Mr. Rapaport

participate in “regular class” for blocks/electives and foreign
language class five days a week for one period; in physical
education three days a week for one period; and in science five
days a week for one period.
that

the

school

district

(R. at 350).
recommended

Mr.

The IEP also noted
Rapaport

receive

modifications in testing procedures and be placed in a selfcontained program with a pupil/staff ratio of 15 to 1.
350).

(R. at

The IEP also stated that Mr. Rapaport had “handwriting

difficulties” yielding a “significant detrimental effect on his
ability to convey meaning in the written form.”

(R. at 350).

It stated that his family requested that he receive access to a
laptop computer to assist him.
the presence of a stutter.

(R. at 350).

The IEP also noted

(R. at 351).

In terms of academic performance, in 1999, Mr. Rapaport
scored in the 36th percentile in reading, in the 19th percentile
in spelling, and in the 20th percentile in math.

(R. at 351).

In a 1999 IQ test, using the WISC-III testing instrument, Mr.
4

Rapaport received a verbal IQ of 107, a performance IQ of 77,
and a full scale IQ of 91.

(R. at 351).

The IEP noted that Mr.

Rapaport needed “to continue to develop his ability to express
himself” and also needed to improve in “math calculation and
reasoning.”
present

(R. at 351).

behavioral

It further stated that he did not

problems

encouragement,

he

independently.”

and

Rapaport

began

works

after

attending

quickly,

receiving

(R. at 351).

Mr.

“generally

that,

the

quietly,

Birchwood

special education center, in second grade.

School,

(R. at 367).

continued at the Birchwood School until fifth grade.
367).

and

a
He

(R. at

He began attending a general education school in sixth

grade and continued in that setting until 12th grade.

(R. at

367).
2. Dr. David Koplon, Ph.D.
Dr.
Rapaport

David
in

Koplon,

September

a

clinical

2008.

(R.

psychologist,
at

367).

examined
The

Mr.

plaintiff

reported a “long history of anxiety and depression,” for which
he had taken the medications BuSpar and Luvox.

(R. at 370).

Dr. Koplon stated that Mr. Rapaport felt these medications were
effective.

(R. at 370).

Although the plaintiff held a valid

driver’s license, he felt his anxiety prevented him from driving
a car.

(R. at 367).

In a WAIS-III IQ examination Dr. Koplon
5

administered, Mr. Rapaport received a verbal IQ score of 112, a
performance IQ score of 81, and a full scale IQ score of 98.
(R. at 368).

On Woodcock-Johnson III Tests of Achievement, the

plaintiff scored within the “average” range of achievement.

(R.

at 369).
3. Dr. Henry Judka, Psy.D.
In January 2013, Dr. Henry Judka, a treating psychologist,
stated

that

adjustment

Mr.

Rapaport

disorder-acute

panic behaviors.

displayed
anxiety

(R. at 399).

Asperger’s

disorder

with

syndrome
elements

and
of

He noted that the plaintiff had

been classified as “handicapped” in a school setting and had
been placed in “special classes” and a “special school.”
399).

(R. at

Dr. Judka noted that Mr. Rapaport received social skills

training,

counseling,

(R. at 399).

and

psychopharmacological

interventions.

He stated that in his opinion, Mr. Rapaport could

not sustain himself through work due to these conditions.

(R.

at 399).
4. Sidney Paul, L.C.S.W.
Sidney Paul, a social worker, stated in March 2013 that Mr.
Rapaport suffered from Asperger’s syndrome.

(R. at 426).

Mr.

Paul noted that Mr. Rapaport “is very limited socially and in
his ability to communicate.”
plaintiff

participated

in

(R. at 426).
two
6

group

He stated that the

therapy

sessions

and

multiple psychotherapy sessions.

(R. at 426).

Mr. Rapaport

began in August 2012; as of January 2013, he had attended 18
therapy sessions and one intake session.

(R. at 426).

Mr.

Rapaport reported that the global economic downturn caused his
“difficulty finding a job as a librarian.”

(R. at 426).

Paul described Mr. Rapaport’s insight as “poor.”

Mr.

(R. at 426).

5. Dr. G. Kleinerman
Dr. G. Kleinerman completed a psychiatric review technique
form in May 2013.

(R. at 73).

understanding and memory.

He found no limitations in

(R. at 69).

Dr. Kleinerman did find,

however, that Mr. Rapaport had limitations in concentration and
persistence.

(R. at 69).

Among other things, Dr. Kleinerman

stated that Mr. Rapaport could carry out very short and simple
instructions.

(R. at 69).

He found that the plaintiff was “not

significantly limited” in the following categories: the ability
to

carry

out

detailed

instructions;

the

ability

to

maintain

attention and concentration for extended periods; the ability to
perform

activities

attendance,
ability

to

and

be

sustain

within
punctual
an

a

schedule,

within

ordinary

maintain

customary
routine

regular

tolerances;
without

the

special

supervision; and the ability to work in coordination with or in
proximity to others without being distracted by them.
69-70).

(R. at

Dr. Kleinerman found that Mr. Rapaport had limitations
7

in

social

interaction

further found

the

and

adaptation.

plaintiff

to

be

(R.

at

moderately

69-70).

limited

He

in

his

ability to respond appropriately to changes in the work setting.
(R. at 71).
6. Sylvia Farkas, L.C.S.W.
In July 2014, Sylvia Farkas, a social worker, provided a
checklist-based assessment of Mr. Rapaport.

She checked lines

indicating that the plaintiff experienced restrictions in the
following daily living activities: maintenance, shopping, paying
bills, using public transportation, planning daily activities,
and initiating and participating in activities independent of
supervision and direction.
noting

that

maintaining

social

effectively,
exhibiting

Mr.

Rapaport

She checked lines

demonstrated

functioning

displaying
social

(R. at 473).

in:

awareness

maturity,

difficulties

communicating
of

clearly

other’s

responding

without

in
and

feelings,
fear

to

strangers, establishing interpersonal relationships, holding a
job,

and

interacting

activities.
that

Mr.

and

(R. at 473).
Rapaport

concentration,

actively

in

group

She also checked lines indicating

experienced

persistence,

participating

or

difficulties
pace

in

the

in

maintaining

following

areas:

independent functioning, concentration, and ability to complete
tasks in a timely manner.

(R. at 474).
8

She checked lines

indicating that the deficiencies seriously interfered with Mr.
Rapaport’s

ability

independent,

to

function

appropriate,

and/or

“in

these

effective

areas

in
(R.

manner.”

an
at

474).
Ms. Farkas’ checklist also indicated her opinion that Mr.
Rapaport

exhibited

deterioration

or

the

following

decompensation,

repeated

each

of

episodes

extended

of

duration:

withdrawal from situations, exacerbation of symptoms of illness,
superficial

or

inappropriate

interaction

with

peers,

poor

decision making, and inability to adapt to changing demands of
context.

(R. at 474).

plaintiff’s

psychiatric

She checked lines indicating that the
impairment

had

lasted

or

could

be

expected to last for a continuous period of not less than 12
months.

(R.

at

474).

Mr.

Rapaport

saw

Ms.

Farkas

for

counseling appointments from late 2013 until at least June 2014.
(R. at 37).
7. Diana Benattar
Diana Benattar, a job development coordinator, reported in
June 2014 that Mr. Rapaport was attempting to find work.
470).

(R. at

She stated that Mr. Rapaport related that he “interviews

well but was not offered the jobs due to funding cuts and the
overall state of the economy.”

(R. at 470).

She also noted

that the plaintiff “reported stress headaches which he stated
9

can

at

times

described

be

Mr.

crippling.”

Rapaport’s

(R.

behavior

at
as

470).

Ms.

“fatalistic

Benattar

about

the

possibility of succeeding past the first interview” and stated
that

he

refused

medications.”

to

(R.

discuss
at

the

470).

possibility

Ms.

of

“revisiting

Benattar

opined

that

the

plaintiff “is not ready to begin preparing or interviewing for a
work experience.”

(R. at 471).

She stated her organization’s

recommendation that Mr. Rapaport “needs to reduce his anxiety
either

with

medication.”

psychiatric

intervention

or

psychotropic

(R. at 471).

8. Susan Levitzky, M.D.
In

late

2014,

Dr.

Susan

Levitzky

treated Mr. Rapaport since birth.

stated

that

(R. at 476).

she

had

She wrote a

letter on his behalf stating that Mr. Rapaport suffered from
autism

with

“[i]nability

interpersonal

to

establish

maintain

effective

“[a]ttention

relationships,”

or

deficit

disorder,

inattentive type,” and a speech impediment.

(R. at 476).

She

also stated that Mr. Rapaport had been diagnosed with an anxiety
disorder,
washing

obsessive-compulsive
resulting

ideation.”
presented

in

(R. at 476).
with

red,

disorder
rough

“with

hands,”

frequent

and

hand

“[p]aranoid

Dr. Levitzky stated that Mr. Rapaport

hydrocephaly

and

476).
10

hypoplastic

vermis.

(R.

at

9. Sheryl Statman, Ph.D.
Also

in

late

neuropsychological
Rapaport’s
tests

2014,

evaluation.

background

administered,

cognitive

Dr.

(R.

Statman

at

information,
general

functions,

Sheryl

477).

She

behavioral

functioning,

perceptually

submitted

based

noted

a
Mr.

observations,

language

nonverbal

based

cognitive

functions, memory functions, executive functions, and emotional
functioning.

(R.

at

477-81).

The

report

concluded

with

a

summary, diagnosis, list of recommendations, and test results
for Mr. Rapaport.

(R. at 481-86).

Dr. Statman stated that Mr.

Rapaport is in “dire need of residential habilitation services
. . . to allow for more independence in activities of daily
living.”

(R. at 482).

She also stated that he “is an excellent

candidate for some basic pre-vocational training, job coaching
onsite,

and

placement

academic skills.”
things,

that

medication;
library,

Rapaport
he

museum,

appropriate;”

a

position

(R. at 482).

Mr.
that

in

pursue

art

that

with

his

She recommended, among other

receive

psychiatric

part-time

center,

his

comm[ensurate]

work

etc.,”

environment

in

which

be

evaluation
a

“bookstore,

“would

modified

for

to

all

be

minimize

stress; and that specific strategies be pursued related to his
learning

style

capacities.

and

organizational,

(R. at 482).
11

memory,

and

attention

C.
Mr.

Procedural History
Rapaport

filed

his

application

for

SSI

benefits

on

November 30, 2012, on the basis of anxiety, depression, panic
attacks, adjustment disorder, Asperger’s syndrome, and related
issues.

(R. at 132).

June 14, 2013.

His application was denied initially on

(R. at 12).

Mr. Rapaport requested a hearing,

which took place before Administrative Law Judge (“ALJ”) Robert
Gonzalez

on

June

26,

2014.

(R.

at

12).

Mr.

Rapaport

represented by Jack Vega, a non-attorney representative.

was

(R. at

12).
At the hearing, Mr. Rapaport testified that he graduated
from St. Thomas Aquinas College in 2008, receiving a bachelor’s
degree.

(R. at 30).

He later completed a graduate program,

receiving a master’s degree in library science.
also

said

that

he

was

considering

(R. at 30).

completing

training program at Rockland Community College.

a

legal

He
aide

(R. at 33).

Regarding his employment history, Mr. Rapaport testified that he
had worked at the New City Jewish Center.

He also stated that

he had completed two days of training at the West Nyack Library.
(R. at 31).

The plaintiff noted that his job at the New City

Jewish Center ended due to the Center’s financial difficulties.
(R. at 50).
Mr. Rapaport testified about his anxiety and history of
12

panic

attacks,

including

related to anxiety.

difficulty

(R. at 52-54).

working

with

a

co-worker

He stated that although he

holds a driver’s license, his anxiety had prevented him from
driving.
home,

(R. at 57).

conducting

He said that he spends a typical day at

research

and

resting.

(R.

at

58).

Mr.

Rapaport said that he had applied for jobs but without success.
(R.

at

58).

He

testified

that

in

the

past

he

had

taken

medication such as Luvox, BuSpar, and clonazepam (R. at 42), but
that at the time of the hearing he had not been prescribed any
medication.
On

(R. at 58-59).

September

15,

2014,

ALJ

Gonzalez

issued

a

decision

finding that Mr. Rapaport was not disabled within the meaning of
the Social Security Act during the period beginning November 30,
2012.
request

(R. at 12).
for

review

determination
case.

The Appeals Council denied Mr. Rapaport’s

the

on

final

(R. at 1).

February
decision

10,
of

2016,
the

making

the

Commissioner

ALJ’s
in

his

The plaintiff filed the present action on

April 7, 2016.
Analytical Framework
A. Determination of Disability
A claimant is disabled under the Social Security Act and
therefore entitled to disability benefits if he can demonstrate,
through medical evidence, that he is unable to “engage in any
13

substantial

gainful

activity

by

reason

of

any

medically

determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than [twelve] months.”
42 U.S.C. § 1382c(a)(3)(A); see also Roman v. Colvin, No. 15
Civ. 4800, 2016 WL 4990260, at *5 (S.D.N.Y. Aug. 2, 2016).

The

disability must be of “such severity that [the claimant] 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).
To determine whether a claimant is entitled to disability
benefits,

the

Commissioner

employs

analysis.

20 C.F.R. § 416.920(a)(4).

a

five-step

sequential

First, the claimant must

demonstrate that he is not currently engaging in substantial
gainful activity.

20 C.F.R. § 416.920(a)(4)(i), (b).

Second,

the claimant must prove that he has a severe impairment that
“significantly limits his physical or mental ability to do basic
work activities.”

20 C.F.R. § 416.920(a)(4)(ii), (c).

Third,

if the impairment is listed in what are known as “the Listings,”
20 C.F.R. Part 404, Subpt. P, App. 1, or is the substantial
equivalent of a listed impairment, the claimant is automatically
considered

disabled.

20

C.F.R.
14

§

416.920(a)(4)(iii),

(d).

Fourth, if the claimant is unable to make the requisite showing
under

step

three,

he

must

prove

that

he

does

not

have

the

residual functional capacity (“RFC”) to perform his past work.
20

C.F.R.

satisfies

§

416.920(a)(4)(iv),

his

burden

of

proof

(e).
on

Fifth,

the

first

if

the

four

claimant

steps,

the

burden shifts to the Commissioner to demonstrate that there is
alternative
economy

substantial

that

the

gainful

claimant

employment

can

in

perform.

the
20

national

C.F.R.

§§

416.920(a)(4)(v), (g), 416.960(c); Longbardi v. Astrue, No. 07
Civ. 5952, 2009 WL 50140, at *23 (S.D.N.Y. Jan. 7, 2009) (citing
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999), and Bapp v.
Bowen, 802 F.2d 601, 604 (2d Cir. 1986)).
whether

the

employment,
facts,

claimant
the

diagnoses

can

perform

Commissioner
or

medical

must

In order to determine

other

substantial

consider

opinions

gainful

objective

based

on

medical

these

facts,

subjective evidence of pain or disability, and the claimant’s
educational

background,

Apfel,

F.3d

174

59,

62

age,
(2d

and
Cir.

work

experience.

1999)

(quoting

Brown

v.

Mongeur

v.

Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).
B. Judicial Review
Under Rule 12(c) of the Federal Rules of Civil Procedure, a
party

is

entitled

to

judgment

on

the

pleadings

if

she

establishes that no material facts are in dispute and that she
15

is entitled to judgment as a matter of law.

See Burnette v.

Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Morcelo v. Barnhart,
No. 01 Civ. 743, 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003).
The Social Security Act provides that the Commissioner’s
findings “as to any fact, if supported by substantial evidence,
shall be conclusive.”

42 U.S.C. § 405(g).

A court reviewing

the Commissioner’s decision “may set aside a decision of the
Commissioner if it is based on legal error or if it is not
supported by substantial evidence.”

Geertgens v. Colvin, No. 13

Civ. 5733, 2014 WL 4809944, at *1 (S.D.N.Y. Sept. 24, 2014)
(quoting Hahn v. Astrue, No. 08 Civ. 4261, 2009 WL 1490775, at
*6 (S.D.N.Y. May 27, 2009)); see also Longbardi, 2009 WL 50140,
at *21.
Judicial review, therefore, involves two levels of inquiry.
First, the court must decide whether the Commissioner applied
the correct legal standard.

Tejada v. Apfel, 167 F.3d 770, 773

(2d Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254, 2008 WL
4452359, at *8 (S.D.N.Y. April 29, 2008).
must

decide

whether

substantial evidence.
Calvello,

2008

WL

the

ALJ’s

decision

Second, the court
was

supported

by

Tejada, 167 F.3d at 773 (2d Cir. 1999);

4452359,

at

*8.

“In

determining

whether

substantial evidence exists, a reviewing court must consider the
whole record, examining the evidence from both sides, because an
16

analysis of the substantiality of the evidence must also include
that which detracts from its weight.”

Longbardi, 2009 WL 50140,

at *21 (citing Brown, 174 F.3d at 62, and Williams v. Bowen, 859
F.2d 255, 256 (2d Cir. 1988)).

Substantial evidence in this

context is “more than a mere scintilla.
evidence

as

a

reasonable

support a conclusion.”

mind

might

It means such relevant
accept

as

adequate

to

Hahn, 2009 WL 1490775, at *6 (quoting

Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Analysis
A. The ALJ’s Decision
ALJ Gonzalez analyzed Mr. Rapaport’s claim pursuant to the
five-step sequential evaluation process and concluded that he
was not disabled on or after November 30, 2012.

(R. at 12).

At

step one, the ALJ determined that Mr. Rapaport had not engaged
in substantial gainful activity since November 30, 2012, the
application date.

(R. at 14).

Next, at step two, the ALJ found that Mr. Rapaport had
severe impairments consisting of anxiety disorder and Asperger’s
syndrome.
At

(R. at 14).
step

three,

ALJ

Gonzalez

found

that

none

of

Mr.

Rapaport’s mental impairments, alone or in combination, met or
medically equaled the severity of one of the impairments in the
Listings.

(R. at 14).

ALJ Gonzalez considered two potential
17

listings:

anxiety

and

obsessive-compulsive

and autism spectrum disorder (12.10).
of

the

hearing,

paragraph

B

of

disorders

(R. at 14).

these

(12.06),

At the time

listings

required

a

claimant to present marked restriction in at least two of the
following areas: activities of daily living, social functioning,
and concentration, persistence, or pace.
Paragraph

C

demonstrate

of

these

either

listings

repeated

As an alternative,

required

episodes

of

the

claimant

to

decompensation,

a

residual disease process resulting in marginal adjustment, or a
history of one or more years’ inability to function outside of a
highly supportive living arrangement.

ALJ Gonzalez concluded

that neither the “paragraph B” nor “paragraph C” criteria were
met.

Specifically,

he

found

that

Mr.

Rapaport

had

mild

restriction with respect to activities of daily living, moderate
difficulties
with

in

respect

social

to

functioning,

concentration,

and

moderate

persistence,

or

difficulties
pace.

ALJ

Gonzalez also found that the medical evidence did not indicate
repeated episodes of decompensation, a residual disease process
resulting in marginal adjustment, or a history of one or more
years’

inability

to

living arrangement.
Proceeding

to

function

outside

of

a

highly

supportive

(R. at 14-15).
step

four,

ALJ

Gonzalez

found

that

Mr.

Rapaport had the residual functional capacity to perform a full
18

range of work at all exertional levels.

(R. at 15).

The ALJ

found that “the claimant is able to understand, remember, and
carry out simple instructions; deal with changes in a routine
work

setting;

and

occasionally

coworkers, and the public.”
that

while

Mr.

Rapaport’s

interact

with

(R. at 15).
medically

supervisors,

ALJ Gonzalez stated

determinable

impairments

“could reasonably be expected to cause the alleged symptoms,”
the

plaintiff’s

statements

concerning

the

intensity,

persistence, and limiting effects of these symptoms were not
entirely credible.

(R. at 16).

ALJ Gonzalez granted little

weight to the opinion of Mr. Rapaport’s treating psychologist,
Dr.

Henry

Judka,

that

the

plaintiff

was

“incapable

of

self-

sustaining employment due to his developmental and psychological
disorders”
success

because

in

college

librarian.”

“it

is

and

his

(R. at 16-17).

contradictory
successful

to

work

the
as

claimant’s
a

part-time

The ALJ also gave little weight to

the opinion of Sidney Paul, who stated that Mr. Rapaport “cannot
focus and make rational decisions” because, according to ALJ
Gonzalez, it “is contrary to the claimant’s activities of daily
living.”

(R. at 17).

By contrast, the ALJ gave substantial

weight to the opinion of Dr. G. Kleinerman, who stated that Mr.
Rapaport
living,

presented
mild

mild

limitations

limitations
in

in

activities

concentration,
19

of

persistence,

daily
and

pace,

and

moderate

limitations

in

social

functioning

because

this opinion was “well supported by the claimant’s activities of
daily living.”

(R. at 17).

At the final step in his analysis, ALJ Gonzalez found that
Mr. Rapaport was not disabled because “jobs exist in significant
numbers in the national economy that the claimant can perform.”
(R. at 18).

ALJ Gonzalez based this decision on section 204.00

in the Medical-Vocational Guidelines (“the Grids”).

(R. at 19).

B. Claims of Legal Error
1. Failure to Call a Vocational Expert
Mr. Rapaport asserts, first, that ALJ Gonzalez’s failure to
call

a

vocational

plaintiff
1985),

a

cites

expert

Social

policy

Security

statement

nonexertional limitations.
Memo.”)

at

13).

constitutes

Mr.

an

Ruling

error
(“SSR”)

describing

of

law.

85-15

decisions

The

(S.S.A.

regarding

(Plaintiff’s Memorandum of Law (“Pl.

Rapaport

asserts

that

when

a

claimant

presents “significant” nonexertional limitations, an ALJ may not
rely on the Grids in making a decision.

(Pl. Memo. at 13-15).

However, this argument misstates the essence of SSR 85-15.
As Mr. Rapaport himself notes, the policy statement does not
mandate use of a vocational expert; it only states one will be
necessary in many cases.

Zabala v. Astrue, 595 F.3d 402, 410

(2d Cir. 2010) (citing Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir.
20

1986))

(“However,

the

‘mere

existence

of

a

nonexertional

impairment does not automatically . . . preclude reliance on the
guidelines.’”)

Specifically, an ALJ is required to call upon a

vocational

expert

limitations

.

.

only
.

if

a

claimant’s

significantly

limit

permitted by his exertional limitations.”
F.

App’x

675,

678

(2d

Cir.

2013)

the

“nonexertional
range

of

work

Lewis v. Colvin, 548

(alteration

in

original)

(quoting Zabala, 595 F.3d at 410).
In the present case, ALJ Gonzalez found that Mr. Rapaport’s
nonexertional limitations, including the ability to “understand,
remember, and carry out simple instructions” and “occasionally
interact with supervisors, coworkers, and the public” (R. at 15)
did not preclude him from performing basic work activities.
at

18).

The

conditions,

not

evidence

as

physical

a

or

whole

mental

suggests

limitations,

termination of the plaintiff’s employment.
50).

Moreover,

nonexertional

the

ALJ

limitations

observed

“have

that

little

(R.

economic

caused

the

(R. at 481, 470, 32,
that
or

no

Mr.

Rapaport’s

effect

on

the

occupational base of unskilled work at all exertional levels.”
(R. at 19).

It was not error, therefore, for ALJ Gonzalez to

rely

Grids

on

the

vocational expert.

rather

than

solicit

the

testimony

of

a

See, e.g., Roma v. Astrue, 468 F. App’x 16,

21 (quoting Bapp, 802 F.2d at 603); Woodmancy v. Colvin, 577 F.
21

App’x 72, 75-76 (2d Cir. 2014).
2. Treating Physician Rule
Next,

Mr.

unsupported

Rapaport

asserts

medical/vocational

that

ALJ

conclusion

Gonzalez
that

is

purview of his expertise or adjudicative power.”
15).

“made

beyond

an
the

(Pl. Memo. at

In support of this proposition, the plaintiff claims that

the ALJ “improperly disregarded” the opinions of Dr. Judka and
Dr.

Koplon,

both

treating

psychologists,

treating social worker source.
The

“treating

and

Mr.

Paul,

a

(Pl. Memo. at 16).

physician

rule”

states

that

a

treating

physician’s opinion “is deemed controlling only if it is wellsupported by clinical evidence.”
504 (2d Cir. 1998).
great

or

Schaal v. Apfel, 134 F.3d 496,

Stated differently, an ALJ need not afford

controlling

weight

to

a

treating

substantial evidence does not support this weight.

source

when

See, e.g.,

Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004).
In the present case, the ALJ applied the treating physician
rule correctly.

ALJ Gonzalez did not “disregard” opinions of

the treating sources.

Instead, he properly assessed each of

these

in

medical

whole.
granting

opinions

(R. at 16-17).
great

or

light

of

the

medical

record

as

a

ALJ Gonzalez gave good reasons for not

controlling

weight

Judka, Dr. Koplon, or Mr. Paul.
22

to

the

opinions

of

Dr.

He did so by describing the

inconsistency of these opinions with Mr. Rapaport’s educational
success

in

college,

vocational

success

as

a

librarian,

ability to complete activities of daily living.

and

(R. at 16-17).

See, e.g., Klodzinski v. Astrue, 274 F. App’x 72, 73 (2d Cir.
2008).
In fact, at least two of these sources -- Dr. Koplon and
Mr. Paul -- provided direct support for the conclusion that Mr.
Rapaport is not disabled.

First, Dr. Koplon stated that Mr.

Rapaport “should be successful in the field of Library Science
research

which

may

focus

on

his

cognitive

and

scholastic

strengths and minimize close personal relationships.”
371).

(R. at

Second, Mr. Paul stated that Mr. Rapaport “can and does

care for himself.”

(R. at 437).

Mr. Paul also checked a box

indicating that he “cannot provide a medical opinion regarding
this individual’s ability to do work-related activities.”

(R.

at 439).
3. Reliance on Consulting Physician
Mr. Rapaport next argues that ALJ Gonzalez committed legal
error

by

examining
Circuit

relying

on

physician.

has

stated,

the

opinion

(Pl.
“The

Memo

general

of
at

Dr.

Kleinerman,

18-19).

rule

is

As

that

the

‘the

a

non-

Second
written

reports of medical advisors who have not personally examined the
claimant “deserve little weight . . . .”’”
23

Vargas v. Sullivan,

898 F.2d 293, 295 (2d Cir. 1990) (quoting Allison v. Heckler,
711 F.2d 145, 147 (10th Cir. 1983)).
only on Dr. Kleinerman’s opinion.

Here, the ALJ did not rely
Rather, he relied on Mr.

Rapaport’s successful work history, college record, IQ scores,
and other factors.

The ALJ thus did not err in relying in part

on the opinion of a consulting physician.

See, e.g., Fessler v.

Astrue, No. 09 Civ. 6905, 2011 WL 346553 at *9 (S.D.N.Y. Jan.
10, 2011) (“Not only may the reports of consultative or nonexamining

physicians

disability,
physicians

but
in

they

constitute
may

appropriate

substantial

override

the

evidence

opinions

circumstances.”);

of

as

to

treating

Casino-Ortiz

v.

Astrue, No. 06 Civ. 155, 2007 WL 2745704 at *9 (S.D.N.Y. Sept.
21, 2011).
4. Failure to Consider Non-Medical Opinions
Mr. Rapaport also argues that ALJ Gonzalez committed legal
error by failing to give “any weight” to the report of Ms.
Benattar, the

job assessor.

(Pl. Memo. at 21).

In particular,

the plaintiff contends that the ALJ neglected to consider all of
the “Factors for Considering Opinion Evidence” set forth in a
Social Security Ruling, SSR 06-03p, 2006 WL 2329939, at *4-5
(S.S.A. 2006).
There is no doubt that ALJ Gonzalez considered some of the
listed factors explicitly.

For example, the ruling identifies
24

one relevant consideration as “[h]ow consistent the opinion is
with other evidence.”

SSR 06-03p, 2006 WL 2329939, at *4.

The

ALJ found that Ms. Benattar’s opinion was not supported by Mr.
Rapaport’s

testimony:

appropriate

skills,

the

had

plaintiff

previously

stated

worked,

and

that
was

he

had

prevented

from working by a tight job market.
Other factors not mentioned by the ALJ do not favor Mr.
Rapaport.

For instance, the ruling suggests consideration of

“[h]ow long the source has known and how frequently the source
has seen the individual.”

SSR 06-03p, 2006 WL 2329939, at *4.

Yet, the plaintiff had only been in contact with Ms. Benattar’s
agency for approximately three months when she wrote her report,
and she had seen him personally only two or three times.

(Tr.

At 470-71).
Accordingly, it was not error for ALJ Gonzalez to discount
Ms. Benattar’s opinion.
C. Substantial Evidence
1. Residual Functional Capacity
Mr. Rapaport next argues that substantial evidence does not
support

ALJ

determination.

Gonzalez’s

residual

(Pl. Memo. at 15-16).

functional

capacity

For the reasons discussed

above, this argument is not persuasive.

While the evidentiary

record does contain evidence of impairment, it does not require
25

the

conclusion

that

Mr.

successful employment.

Rapaport’s

symptoms

would

preclude

Mr. Rapaport himself provided numerous

examples of being able to perform key activities of daily living
and of being able to perform work tasks.

During the hearing, he

stated, for instance, that his “computer skills” and “typing
skills” were “good” and stated that his “researching skills”
were “very, very good.”

(R. at 42).

The plaintiff indicated

that he had been able to apply for jobs.

(R. at 58).

He

testified that he was told that he “did a very good job” while
working at a library.

(R. at 51).

Neither Mr. Rapaport nor any

medical source provided any indication of a physical disability
that

would

evidence

as

prevent
a

him

whole

from

supports

capacity determination.

performing
the

work.

ALJ’s

The

residual

medical

functional

See Smith v. Commissioner of Social

Security, 595 F. Supp. 2d 236, 238 (W.D.N.Y. 2009) (residual
functional capacity for claimant with Asperger’s syndrome did
not direct finding of disability); see also Mideczky v. Colvin,
No. 15 CV 531, 2016 WL 4402031, at *6-7 (N.D.N.Y. Aug. 18,
2016); Delucia v. Colvin, No. 15 CV 6029 2016 WL 898836, at *1819 (W.D.N.Y. March 9, 2016).
2. New Evidence
Mr.

Rapaport

also

argues

that

the

Appeals

Council

improperly ignored the newly submitted opinions of Ms. Farkas,
26

Dr.

Levitzky,

and

determination.

Dr.

Statman

when

(Pl. Memo. at 21-23).

it

upheld

the

ALJ’s

Mr. Rapaport also argues

that an October 9, 2014 opinion from Ms. Benattar was submitted
to the Appeals Council and ignored.

(Pl. Complaint (“Compl.”)

at 7).
At

the

time

of

the

hearing

and

appeal,

20

C.F.R.

416.1476(b)(1) provided that: “[I]n reviewing decisions based on
an application for benefits, the Appeals Council will consider
the evidence in the administrative law judge hearing record as
well as any new and material evidence submitted to it . . . .”
see, e.g., Bhuiyan v. Astrue, Civ. No. 2:12-362, 2013 WL 663711,
at *3 (D.N.J. Feb. 22, 2013).

Because nothing in the opinions

of Ms. Farkas, Dr. Levitzky, or Dr. Statman constitutes “new and
material” evidence, it was proper for the Appeals Council not to
consider them.

First, Ms. Farkas’ evidence consists largely of

a checklist related to alleged functional limitations, such as
difficulties with maintenance, shopping, paying bills, and using
public

transportation.

evidence
checklist.

does

not
In

(R.

support

addition,

at

473-74).

the

limitations

courts

conclusory evidence problematic.

have

found

The

substantial

alleged
this

on
type

the
of

See, e.g., Sabater v. Colvin,

No. 12 Civ. 4594, 2016 WL 1047080, at *5 n.6 (S.D.N.Y. March 10,
2016), citing Mason v. Shalala, 994 F. 2d 1058, 1067 (3d Cir.
27

1993) (“Form reports in which a physician’s obligation is only
to check a box or fill in a blank are weak evidence at best.”).
Furthermore, pursuant to SSR 06-03p, Ms. Farkas does not qualify
as

an

“acceptable

medical

source[],”

and

her

opinion

is

therefore not entitled to deference.
The evidence from Dr. Levitzky consists of a letter dated
from November 29, 2014.
anxiety

disorder,

evidence.

and

The diagnoses, which include autism,
hydrocephaly,

(R. at 476).

already

appear

in

other

And, while Dr. Levitzky writes that

“[o]nly a professional with a background in autism and extensive
mental health training would be appropriate to determine the
level of disability for this man (R. at 476),” the determination
of

disability

is

reserved

to

the

Commissioner.

See,

e.g.,

Pichardo v. Commissioner of Social Security, No. 14 Civ. 7213,
2015 WL 6674822, at *10 (S.D.N.Y. 2015).
Dr. Statman’s report also does not provide new evidence
requiring

Appeals

Council

review.

While

comprehensive,

the

report duplicates evidence already in the record concerning Mr.
Rapaport’s neuropsychological functioning.
report

exhaustively

information,

verbal

details

and

language

Mr.

(R. at 477-86).

Rapaport’s

skills,

The

background

cognitive

functions,

memory functions, and the like, but it does not conclude that
the

plaintiff

exhibits

“marked”
28

symptoms

or

a

residual

functional

capacity

directing

a

finding

of

disability.

Dr.

Statman describes “mildly impaired” cognitive functioning (R. at
478,

482);

normal

“expressive

limits”

(R.

at

verbal
479);

skills”
a

that

“mildly

are

“well

impaired”

within

ability

to

“process orally presented quantitative information” (R. at 479);
and a “mildly impaired” ability to “discriminate essential from
non-essential details” (R. at 480).
identifies

potentially

greater

The few times Dr. Statman

deficits,

such

as

“significant

limitations in all areas of memory” (R. at 480) and “significant
attention deficits” (R. at 480), this information is consistent
with

other

reports.

Rapaport’s]
previous

current

As

cognitive

evaluations;

consistent.”

Dr.

Statman
skills

however,

the

himself

are

notes,

slightly

overall

“[Mr.

lower

profile

than

remains

(R. at 482).

In fact, Dr. Statman suggests that the plaintiff is not
disabled, stating, “Mr. Rapaport is an excellent candidate for
some

basic

placement
skills.”

pre-vocational
in

a

position

training,

job

comm[ensurate]

coaching
with

onsite,
his

and

academic

(R. at 482; Pl. Memo at 22).

With regards to Ms. Benattar’s October 9, 2014 report, the
plaintiff

has

not

provided

any

evidence

to

suggest

that

the

Appeals Council received and failed to consider this opinion.
The doctrine of administrative regularity “provides that, in the
29

absence

of

clear

presume

that

evidence

public

official duties.”

to

officers

the

contrary,

have

properly

the

court

discharged

will
their

Otero v. Commissioner of Social Security, No.

12 CV 1434, 2013 WL 1934074, at *5 (E.D.N.Y. May 8, 2013),
citing Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004).
Therefore, the plaintiff has not rebutted this presumption of
administrative regularity.
Conclusion
For

the

foregoing

reasons,

I

recommend

that

the

Commissioner’s motion for judgment on the pleadings (Docket no.
17)

be

granted,

the

plaintiff’s

motion

denied, and the complaint be dismissed.

(Docket

no.

14)

be

Pursuant to 28 U.S.C. §

636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of
Civil Procedure, the parties shall have fourteen (14) days from
this

date

to

Recommendation.

file

written

objections

to

this

Report

and

Such objections shall be filed with the Clerk

of the Court, with extra copies delivered to the chambers of the
Honorable Vernon S. Broderick, Room 415, 40 Foley Square, New
York, New York 10007 and to the chambers of the undersigned,
Room 1960, 500 Pearl Street, New York, New York 10007.
to file timely objections will preclude appellate review.

30

Failure