Paulin v. Commissioner of the Social Security Administration
OPINION & ORDER: re: 14 FIRST MOTION for Judgment on the Pleadings, filed by Labar Paulin, 21 CROSS MOTION for Judgment on the Pleadings, filed by Commissioner of the Social Security Administration. For the reasons s et forth above, the Commissioner's motion (Dkt. No. 21) is DENIED and Paulin's motion (Dkt. No. 14) is GRANTED to the extent of remanding the case to the Commissioner for further consideration, and as further set forth in this order. Mo tions terminated: 14 FIRST MOTION for Judgment on the Pleadings, filed by Labar Paulin, 21 CROSS MOTION for Judgment on the Pleadings, filed by Commissioner of the Social Security Administration. (Signed by Magistrate Judge Andrew J. Peck on 11/27/2017) (ap)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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-againstNANCY A. BERRYHILL,
Acting Commissioner of Social Security,
17 Civ. 1083 (AJP)
OPINION & ORDER
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ANDREW J. PECK, United States Magistrate Judge:
Plaintiff Labar Paulin, represented by counsel, brings this action pursuant to § 205(g)
of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner
of Social Security denying his application for Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI"). (Dkt. No. 1: Compl.) Presently before the Court are the
parties' cross motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 14:
Paulin Notice of Mot.; Dkt. No. 21: Comm'r Notice of Mot.) The parties have consented to decision
of the case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 16.)
For the reasons set forth below, Paulin's motion for judgment on the pleadings (Dkt.
No. 14) is GRANTED and the Commissioner's motion (Dkt. No. 21) is DENIED.
Paulin filed for DIB and SSI on January 27, 2014, alleging a disability onset date of
July 1, 2010. (Dkt. No. 12: Administrative Record ("R.") 197-205.) On June 17, 2015, Paulin,
represented by counsel, had a hearing before Administrative Law Judge ("ALJ") Joani Sedaca (R.
37-101), who denied Paulin's benefits application in a written decision issued on August 5, 2015 (R.
20-32). ALJ Sedaca's decision became the Commissioner's final decision when the Appeals Council
denied review on December 12, 2016. (R. 1-3.)
Non-Medical Evidence and Testimony
Born on March 10, 1990, Paulin was twenty years old at the alleged July 1, 2010
onset of his disability. (R. 197.) Paulin testified that he "suffer[s] from anxiety, depression, [fear
of] crossing the streets, panic attacks, and headaches," but has no physical issues and does not suffer
from any illnesses. (R. 43.)1/ Paulin testified that he is single with no children (R. 44) and lives in
an apartment with his mother (R. 64-65). Paulin graduated from high school where he was enrolled
in "regular classes," and "tried to attend . . . college but it didn't work out"; Paulin testified that he
dropped out after a month because he "started . . . getting sick, having panic attacks . . . [,] feeling
weird, nervous, having bad headaches . . . [and] just wasn't . . . feeling the same." (R. 44-45.)
Paulin began experiencing these issues during high school and the symptoms intensified after
graduation. (R. 45-46.) Paulin testified that his condition had deteriorated over the past seven years.
Paulin testified that his "mother usually takes [him] places . . . because [he] ha[s]
difficulties going some places . . . by [him]self," and that "for the last seven years" he only used
public transportation when accompanied by his mother due to his "nervousness, . . . panic attacks,
fears of crossing the street, and feeling paranoid." (R. 47-48.) Paulin testified that he was diagnosed
with "[a]goraphobia, social anxiety, and panic attacks," which cause hyperventilation and chest pains
Paulin's counsel also stated at the hearing before ALJ Sedaca that although Paulin was
overweight, Paulin's physical problems were "nothing . . . really significant to the case." (R.
and resulted in his admission to the emergency room in 2009. (R. 48-50.) Paulin attended "talk
therapy" from 2009 through 2010, but stopped when his insurance benefits were reduced; although
Paulin testified that he now has insurance, he has not attended talk therapy because he has not
received a referral from his psychiatrist. (R. 51-53.)
Paulin worked as a security guard with Epic Security from February 2012 through
June 2012 when he was fired for lateness and "[t]hey started seeing that . . . [Paulin] couldn't be
around people." (R. 61-63.) Prior to joining Epic Security, Paulin took a one-week security training
course and passed a certification exam. (Id.) Paulin next worked as a security guard with Madison
Security from June 2012 through October 2012 when he was fired because he "got to things slower
than others" and "was missing a lot of days." (R. 63-64.)
Paulin last worked as a security guard with Cambridge Security from October 2012
through the fall of 2013 (R. 53), when his employer informed him that he "wasn't equipped for the
job . . . because of [his] awkwardness" (R. 56-57). Paulin took too long to complete assignments
and often was late to work. (R. 57-58.) Paulin has not looked for work since being terminated from
Cambridge Security. (R. 71.)
Paulin testified that he got to work by taking the bus or getting a ride from his
brother. (R. 59.) When ALJ Sedaca remarked that Paulin previously testified that for the past seven
years he only used public transportation when accompanied by his mother (see page 2 above), Paulin
responded that he had to "force [him]self" to go alone if his mother was unavailable. (R. 59-60.)
Paulin testified that he bathes but sometimes his clothes are not "on properly or
correctly" because he does not "care how [he] look[s]." (R. 60.) In a February 2014 function report,
Paulin wrote that it "takes 2 hours to get dress[ed]," over an hour to "shower with difficulty," and
he "can't do hair mom has to pay for barber" (R. 256), although he can feed himself and use the
bathroom (R. 259). Paulin testified that he has difficulty sleeping and sometimes "can't sleep at all."
(R. 70-71.) Paulin's mother cleans, cooks, and does the laundry and grocery shopping; Paulin
testified that his "weirdness" and "awkwardness" completely prevent him from doing any of the
foregoing or assisting his mother in doing so. (R. 65-68.)
Paulin remains in his apartment "most of the time" watching television and
sometimes using his computer, and spends time with his friend who visits "maybe twice a week."
(R. 68-69.) Paulin's cousin visits him "often" (R. 49), and Paulin's brother visits as well (R. 70).
Paulin testified that he "[s]ometimes" speaks with his friend and grandmother on the phone (R. 70),
but wrote in his function report that he does not "socialize with neighbors [and] only see[s] family
sometime[s]" (R. 258). Paulin's function report lists his hobbies as "watching tv, playing sports[,]
hanging with friends, [and] movies." (R. 257.) However, aside from watching television "daily,"
Paulin wrote that he was "[n]o longer able to play sports or go out with friends" and he did not "have
friends anymore have not seen movie in years." (Id.) Paulin further wrote that he "use[d] to be able
to go out and enjoy movies, parties, work, friends and family" but no longer does. (R. 258.) Paulin
stated that he has a "short attention span" and cannot finish what he starts, e.g., chores or reading,
because "[i]t takes hours never finish." (R. 261.) Paulin wrote that he could "sometimes" follow
spoken or written instructions (id.), has trouble remembering things and cannot "deal with stress or
change" (R. 263).
Lisa O'Neal, Paulin's mother, also testified at the hearing before ALJ Sedaca. (R. 80.)
O'Neal testified that she first noticed Paulin's mental limitations when he was a child and "[h]e was
a little slower than [O'Neal's] other kids." (R. 81.) O'Neal stated that, in 2008, Paulin dropped out
of college after a month because "he locked himself in the room. He wouldn't go to classes. He lost
weight. He couldn't function." (R. 84.) According to O'Neal, "that was around the time that
everything . . . fell apart for" Paulin. (R. 85.)
O'Neal stated that Paulin "is not comfortable around people. He has . . . fears of
social anxiety." (R. 87.) O'Neal reiterated that she "do[es] everything in the home" and that Paulin
does not "assist [her] at all" because "he's very awkward in doing things . . . so it's easier for
[O'Neal] to do." (R. 87-88.) O'Neal stated that Paulin spends most of his time in his room
sometimes watching television or "he'll sit there with no TV, no nothing on." (R. 90-91.) Paulin's
friend visits Paulin or takes Paulin to his home, and sometimes Paulin socializes with neighbors
"downstairs but he'll come right back up." (R. 90.)
O'Neal testified that Paulin sees Dr. Hameedi once a month (R. 85), for an hour to
an hour and a half each session (R. 87). Although Paulin attended talk therapy in the past, O'Neal
stated that Paulin stopped doing so when his insurance benefits terminated; yet, as Paulin testified,
although Paulin now has insurance benefits, Paulin has not been referred for talk therapy. (R. 8586.)
Vocational expert Julie Andrews testified at the hearing before ALJ Sedaca. (R. 92.)
ALJ Sedaca posed four hypothetical questions to Andrews, the first of which asked:
Please assume an individual with the same vocational profile as [Paulin] who has a
residual functional capacity to perform the range of work without any exertional
limits; however, it must be simple, routine, repetitive tasks, which are only one or
two steps. It must be only occasional, decision-making required. There must be
only occasional changes in the work setting including the procedures and the tools.
There must be no public contact. There must be only occasional contact with
coworkers including supervisors.
(R. 93.) Andrews testified that an individual with these limitations would not be able to perform
Paulin's past relevant work as a security guard. (R. 93-94.) However, there were unskilled jobs in
the national economy that such an individual could perform, including laundry laborer, industrial
cleaner and kitchen helper. (R. 94.)
ALJ Sedaca's second hypothetical asked: "In addition to the above limitations, the
individual is now limited to unscheduled absences more than . . . two times per month." (R. 95.)
Andrews testified that such absences would affect the above positions "to the point where there
would not be any full-time competitive employment positions that would be viable." (Id.)
ALJ Sedaca's third hypothetical "in place of [hypothetical] two" asked: "So we're no
longer talking about unscheduled absences. In addition to the above limitations [outlined in
hypothetical one], . . . the individual is now limited to being off task due to psychological issues
more than 10% of the time. Would that [a]ffect the above job[s]?" (Id.) Andrews stated that these
limitations would eliminate "any full-time competitive employment positions," assuming that the
time off-task would be "outside of normal breaks and rest periods." (Id.)
ALJ Sedaca's fourth hypothetical "in place of both [hypotheticals] two and three"
asked: "So we're not talking about the unscheduled absences or the psychological off-task but
instead . . . - - let's say lateness to work - - we'll say if it is more than . . . five times per month,
would that [a]ffect the above jobs?" (R. 95-96.) Andrews responded that "[i]t would be unlikely
that the individual would be able to maintain employment because of that." (R. 96.)
Medical Evidence Before the ALJ
Montefiore Medical Center
On November 21, 2008, psychiatrist Dr. Faiq Hameedi wrote a note stating that
Paulin suffered from major depression and agoraphobia since September 2008. (R. 360.) Dr.
Hameedi wrote that Paulin was "not able to attend school due to depression and anxiety." (Id.)
On the same date, November 21, 2008, Dr. Hameedi completed an "Outpatient
Clinical Assessment Form" listing Paulin's symptoms as depression, anhedonia, feelings of
worthlessness and guilt, decreased energy and motivation, panic attacks, flashbacks and social
anxiety. (R. 454.) Paulin was well groomed, had a guarded and suspicious attitude, constricted
affect, depressed and anxious mood, delayed expressive speech, age-appropriate receptive language
comprehension, slowed psychomotor activity, intact thought process, and no hallucinations,
delusions or suicidal/homicidal ideation. (R. 456-57.) Paulin was alert, oriented to time, place and
person, had intact immediate recall and remote memory, was able to perform simple calculations
and serial sevens, and had intact abstraction, judgment and insight, as well as good impulse control.
(R. 457.) Dr. Hameedi also completed a treatment plan stating that Paulin suffered from a panic
disorder with major depression, and had a GAF of 50. (R. 458.)
Dr. Hameedi's December 15, 2008 progress note states that Paulin was non-compliant
with his medication regimen. (R. 459.)2/ On February 2, 2009 and March 9, 2009, Dr. Hameedi
wrote that Paulin had social anxiety but was compliant with his medication, Zoloft, the dose of
which was increased from 50 to 100 mg. (R. 460-61.)
On March 24, 2009, Dr. Hameedi completed a "Confidential Medical Report
Psychiatric Disability." (R. 462-63.) Dr. Hameedi wrote that Paulin's "[m]ental health estimate,"
personal awareness and motivation were fair, and that Paulin "need[ed] encouragement to inspire
social interaction." (R. 463.) Dr. Hameedi further wrote that while Paulin had difficulty dealing
with new people, his "[w]ork ability estimate" was good. (Id.)
On April 13, 2009, Dr. Hameedi wrote that Paulin was "[s]till afraid to go out" and
increased Paulin's Zoloft prescription. (R. 464.)
On May 11, 2009, Dr. Hameedi completed a disability questionnaire listing Paulin's
diagnoses as social anxiety disorder, panic disorder, major depression and agoraphobia. (R. 359.)
Dr. Hameedi's progress notes are difficult to read and often completely illegible.
Dr. Hameedi wrote that Paulin had "poor memory and concentration and [was] afraid to go out," and
that his future employability was "undetermined." (Id.)
On June 8, August 15 and October 26, 2009, Dr. Hameedi reported that Paulin was
still afraid to go out and suffered from social anxiety. (R. 467-69.)
On September 8, 2009, Paulin had an annual visit at Montefiore Children's Hospital
with Dr. Marc Orgel. (R. 299.) Dr. Orgel noted that Paulin was "diagnosed with depression, social
anxiety, [and] agoraphobia" and that Paulin's psychiatrist recommended imaging of his head after
he sustained a sports injury. (Id.) Paulin had a normal appearance, was alert with a flat affect, and
was "oriented times 3." (R. 300.) Dr. Orgel wrote that Paulin had major depression and should
continue to see a psychiatrist. (Id.)
On October 8, 2009, Paulin underwent an MRI of his brain that was normal. (R.
On November 23, 2009, Dr. Hameedi wrote that Paulin continued to experience
social anxiety; Paulin, however, was non-compliant with his medication and informed Dr. Hameedi
that he did "not want to take anti psychotics." (R. 470.) The same date, November 23, 2009, Dr.
Hameedi completed a "Treatment Plan Update" form. (R. 471.) Dr. Hameedi assigned Paulin a
GAF of 45 and, in the "Review of Progress" portion of his notes, Dr. Hameedi checked a box stating
that Paulin "[c]ontinues with/or recurrence of acute presenting symptoms." (Id.)
On February 5, 2010, Paulin was admitted to New York Presbyterian Hospital's
Emergency Department for depression, anxiety and agoraphobia. (R. 335.) Paulin was admitted
to the Emergency Department "after a call from his mother" who "was concerned that [Paulin was]
isolative and withdrawn. [Paulin] refuse[d] to leave the house to do anything." (R. 342.) The triage
notes further state that Paulin was "isolative, depressed [and] ha[d] not left house since Nov," though
the "Reassessments" section states that Paulin was "stable, alert, playing Nintendo in no distress."
(R. 340.) Paulin denied suicidal or homicidal ideation, denied visual or auditory hallucinations, was
oriented "x3," had an appropriate appearance, a cooperative attitude, a linear thought process, clear
speech and a flat affect. (R. 341.) Paulin's recent memory, remote memory and concentration were
good, but his insight and judgment were poor. (Id.) The attending physician, Dr. Angel Caraballo,
diagnosed Paulin with chronic social anxiety and depression with a GAF of 40. (Id.) Dr. Caraballo
wrote that Paulin was "isolative, withdrawn and depressed," "[n]on-compliant with treatment @
Montefiore," and "would not take meds prescribed by psychiatrist." (Id.) Regarding Paulin's
departure from college, the notes state that Paulin "[r]efused to go to classes [and] did not eat." (R.
342.) Paulin was "able to follow goal directed conversation" and had "[n]o previous in-patient
After his initial assessment, Dr. Caraballo completed a "CCPEP Evaluation." (R.
346-50.) Paulin "report[ed] that he feels very nervous sometimes . . . mostly when he is around
other people," although he denied fearing harm from others or auditory/visual hallucinations. (R.
346.) Paulin stated that he stayed home all day listening to music and watching television, "ha[d]
not been getting out of the house much" and did "not have many friends." (Id.) Paulin "denie[d]
any feelings of depression" and "report[ed] that his sleep [was] good as well as his appetite." (Id.)
Paulin's energy level was "regular," his concentration was "good," and he "denie[d] any feelings of
guilt, hopelessness or helplessness," suicidal/homicidal intent, "symptoms of mania" or "any specific
fears." (Id.) However, Paulin's mother and aunt reported that Paulin had problems with activities
of daily living and sometimes sat "in the dark for hours by himself." (Id.) Paulin had stopped taking
Zoloft and Abilify because he felt they were not helping. (Id.)
Dr. Caraballo wrote that Paulin had a cooperative attitude, poor hygiene, euthymic
mood, slow psychomotor activity, flat affect, monotone speech, appropriate thought content, poor
insight, appropriate judgment and impulse control, and good "Orientation/Memory/Concentration."
(R. 348-49.) Dr. Caraballo diagnosed Paulin with "Psychotic Disorder NOS" and generalized
anxiety disorder with a GAF of 45. (R. 349-50.) Dr. Caraballo discharged Paulin with instructions
to follow up with his psychiatrist Dr. Hameedi and resume taking his medication after concluding
that Paulin was not a danger to himself or others. (R. 350.)
On April 12, 2010, Dr. Hameedi wrote that Paulin "feels much less anxiety and is
able to go outside without family. Denies any panic attacks. Reduced agoraphobia." (R. 472.)
On November 22, 2010, Dr. Hameedi completed a second "Treatment Plan Update"
form and reported that Paulin exhibited "[s]ignificant improvement" since his last treatment plan
update on November 23, 2009, and had a GAF of 55. (R. 475; see page 8 above.)
On February 28, 2011, Dr. Hameedi wrote that Paulin had "[r]educed social anxiety."
(R. 476.) Dr. Hameedi's notes on October 17, 2011, November 28, 2011, January 30, 2012, April
10, 2012, May 29, 2012, and December 3, 2012, include little legible detail aside from references
to Paulin's social anxiety and his compliance with medication. (See R. 477-82.)
On December 3, 2012, Dr. Hameedi completed a third "Treatment Plan Update" form
and reported that Paulin exhibited "[s]ignificant improvement" since his last treatment plan update
on November 22, 2010, and maintained his GAF of 55. (R. 483.) Dr. Hameedi also reported that
Paulin had a new girlfriend. (Id.)
On September 30, 2013, Dr. Hameedi completed a fourth "Treatment Plan Update"
form and checked a box stating that Paulin "[c]ontinues with/or recurrence of acute presenting
symptoms" since his last treatment plan update on December 3, 2012. (R. 486.) Specifically, Dr.
Hameedi wrote that Paulin "has a job" but is "[a]fraid to go to the store"; however, unlike previous
treatment plans, Dr. Hameedi left the GAF assessment blank. (Id.)
On November 25, 2013, Dr. Hameedi wrote a note stating that he treated Paulin for
agoraphobia and panic attacks. (R. 357.)
On March 18, 2014, Dr. Hameedi completed a psychiatric report diagnosing Paulin
with moderate "Anxiety Disorder NOS" with a GAF of 60. (R. 370-75.) Dr. Hameedi opined that
Paulin had marked limitations relating to others, interacting appropriately with the public and in his
activities of daily living, and marked deterioration of his personal habits. (R. 373.) Paulin also was
markedly limited in his ability to perform complex tasks, perform tasks requiring minimal contact
with others, tolerate work-related stress, maintain concentration and attention, and set realistic goals
or make plans independently. (R. 373-74.) Dr. Hameedi further opined that Paulin had moderate
limitations comprehending and following simple or detailed instructions, and performing simple or
repetitive tasks. (R. 373.) Paulin had additional moderate limitations performing varied tasks,
performing tasks requiring frequent contact with others, responding appropriately to supervision and
criticism, and meeting production, quality and attendance standards. (R. 374.) Dr. Hameedi wrote
that Paulin had "additional difficulties in organizing, regulating or managing himself" due to his
"poor interpersonal skills," and Paulin could not use public transportation alone as he was "afraid
of being hit by cars." (R. 371, 374-75.) Dr. Hameedi wrote that Paulin's symptoms lasted or were
expected to last at least twelve months. (R. 372.)
On April 23, 2014, Dr. Hameedi completed a medical source statement regarding
Paulin's ability to do work-related activities. (R. 450-52.) Dr. Hameedi wrote that Paulin had
moderate limitations in his ability to understand, remember and carry out simple instructions, and
make judgments on complex work-related decisions. (R. 450.) Paulin was markedly limited in his
ability to make judgments on simple work-related decisions; understand, remember and carry out
complex instructions; interact appropriately with the public, supervisors and coworkers; and respond
appropriately to usual work situations and to changes in a routine work setting. (R. 450-51.) Dr.
Hameedi noted that Paulin's mental impairments also resulted in his "[p]oor memory and
concentration." (R. 451.) Dr. Hameedi stated that Paulin "remains socially isolated [because of]
fear of going out." (Id.)
However, on April 25, 2014, Dr. Hameedi wrote that Paulin was "feeling happy,"
"[d]enied any acute depression" and only "ha[d] some residual social anxiety." (R. 490.) On August
22, 2014, Dr. Hameedi wrote that Paulin was "socially isolated but [was] able to go out with
friends." (R. 491.)
On March 13, 2015, Dr. Hameedi completed a second psychiatric report diagnosing
Paulin with agoraphobia and panic attacks with a GAF of 60. (R. 444-49.) In contrast to his March
18, 2014 psychiatric report, Dr. Hameedi wrote that Paulin's sole moderate limitation was in his
ability to perform repetitive tasks. (R. 447; see page 11 above.) Dr. Hameedi opined that Paulin
had marked limitations relating to others, interacting with the public and in his activities of daily
living, and marked deterioration of his personal habits. (R. 447.) Paulin further was markedly
limited in his ability to comprehend and follow simple instructions; perform simple, complex and
varied tasks or tasks requiring frequent contact with others; respond appropriately to supervision and
criticism; tolerate work-related stress; maintain concentration and attention; and meet production,
quality and attendance standards. (R. 447-48.) Moreover, Dr. Hameedi opined that Paulin had
extreme limitations comprehending and following detailed instructions, performing tasks requiring
minimal contact with others, and setting realistic goals or making plans independently. (Id.) Dr.
Hameedi wrote that Paulin's symptoms lasted or were expected to last at least twelve months (R.
446), and that Paulin was "not able to work" (R. 449).
On June 12, 2015, Dr. Hameedi completed a "Mental Impairment Questionnaire."
(R. 523-24.) Dr. Hameedi opined that Paulin was "[u]nable to meet competitive standards" in all
but two categories of "mental abilities and aptitudes needed to do unskilled," "semiskilled and
skilled work" and "particular types of jobs," including the ability to understand and remember very
short and simple instructions, maintain attention for two hours at a time, deal with normal work
stress, set realistic goals, and interact appropriately with others. (Id.) Dr. Hameedi opined that
Paulin was "[s]eriously limited" in the two remaining categories—the ability to make simple workrelated decisions and be aware of workplace hazards. (R. 523.) Dr. Hameedi wrote that Paulin
would be absent from work more than four days per month because of his psychological limitations.
Michael Kushner, Ph.D.
On February 24, 2014, Paulin received a consultative psychiatric evaluation from Dr.
Michael Kushner of Industrial Medicine Associates. (R. 366-69.) Paulin arrived at the evaluation
via the "Access-a-Ride" service accompanied by his mother. (R. 366.) Paulin reported that he lived
with his mother and obtained "a high school diploma under regular education." (Id.) Paulin further
stated that "[h]e was employed doing security work for a period of four months, ending in 09/13
when he was fired for not being able to do the job." (Id.) Paulin reported no psychiatric
hospitalizations or outpatient treatment history aside from his monthly visits with Dr. Hameedi.
Paulin reported difficulty falling asleep, a loss of appetite, "depressive symptoms
including social withdrawal," and no suicidal ideation although "he did have suicidal thoughts about
one month ago." (Id.) Paulin claimed "that he ha[d] a great deal of social anxiety," "[t]hat is, he
report[ed] that he gets 'nervous and paranoid' around people. He also report[ed] having agoraphobia
and . . . that sometimes being outside and around people can develop into panic symptoms." (Id.)
Paulin had "no symptoms of mania or thought disorder," but "report[ed] memory and concentration
trouble." (Id.) Paulin reported that he dressed, bathed and groomed himself on a daily basis, but
his mother did the household chores and he did not take public transportation or socialize. (R. 368.)
Dr. Kushner wrote that Paulin's "[a]daptive functioning would seem to be somewhat compromised."
Dr. Kushner found that Paulin's "[d]emeanor and responsiveness to questions was
cooperative [and his] [m]anner of relating, social sills, and overall presentation were fair." (R. 367.)
Paulin had fair grooming and hygiene, normal posture and motor behavior, appropriate eye contact,
fluent speech intelligibility, clear voice quality, and adequate expressive and receptive language.
(Id.) Paulin was "[c]oherent and goal directed with no evidence of hallucinations, delusions, or
paranoia during the evaluation setting." (Id.) Paulin had an anxious affect, a "[m]ostly euthymic"
mood, clear sensorium, "[c]lear x3" orientation, his attention and concentration were mildly
impaired, his recent and remote memory skills were "[i]mpaired possibly due to lack of full effort,"
his intellectual functioning was below average and his insight and judgment were fair. (R. 367-68.)
Dr. Kushner concluded that Paulin had mild limitations following and understanding
simple directions and instructions and performing simple tasks independently; mild to moderate
limitations maintaining attention, concentration and a regular schedule, learning new tasks and
performing complex tasks under supervision; mild limitations making appropriate decisions; and
"moderate to at times marked limitations" relating adequately with others and appropriately dealing
with stress. (R. 368.)
Dr. Kushner concluded: "The results of the present evaluation appear to be consistent
with psychiatric problems, but in itself, this does not appear to be significant enough to interfere
with [Paulin's] ability to function on a daily basis." (Id.) Dr. Kushner diagnosed Paulin with
unspecified anxiety and depressive disorders; he recommended that Paulin continue psychiatric
treatment "as currently provided" and "[a]lso consider some type of vocational training as [Paulin]
appear[ed] to be capable of working" at a job "that does not require a great deal of social
interaction." (R. 368-69.) Dr. Kushner found that Paulin's prognosis was "[f]air to guarded." (R.
E. Kamin, Ph.D.
On February 28, 2014, Dr. E. Kamin completed a "Medically Determinable
Impairments And Severity" form after reviewing some of Paulin's medical records. (R. 102-12.)
Dr. Kamin opined that Paulin had mild limitations in activities of daily living, moderate limitations
in maintaining social functioning, and moderate limitations maintaining concentration, persistence
or pace. (R. 107.) Dr. Kamin found that Paulin was not significantly limited in his ability to
remember locations and work-like procedures, understand, remember and carry out very short and
simple instructions or make simple work-related decisions, although he was moderately limited in
his ability to understand, remember and carry out detailed instructions. (R. 108-09.) Paulin also was
moderately limited in his ability to maintain attention and concentration for extended periods,
perform activities within a schedule, maintain regular attendance and be punctual, sustain an
ordinary routine without special supervision, work in coordination with others without being
distracted, and complete a normal workday and workweek without interruptions from
psychologically based symptoms. (R. 109.) Paulin furthermore had moderate limitations in some
categories of social interaction and adaptation, including his ability to interact with the general
public and take public transportation. (R. 109-10.)
Based on his review, Dr. Kamin found that Paulin was not disabled (R. 112), and was
capable of unskilled, entry level work in a low contact setting (R. 110-11).
ALJ Sedaca's Decision
On August 5, 2015, ALJ Sedaca denied Paulin's benefits application. (R. 20-32.)
ALJ Sedaca applied the appropriate five step legal analysis. (R. 24-25.) First, she found that Paulin
"has not engaged in substantial gainful activity since July 1, 2010, the alleged onset date." (R. 25.)
Second, ALJ Sedaca found that Paulin had the "following severe impairments: social anxiety
disorder and depressive disorder." (Id.) Third, ALJ Sedaca found that Paulin did "not have an
impairment or combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1," giving "special consideration to the
listings for mental disorders (12.00)." (R. 26.) ALJ Sedaca next determined that Paulin had the
residual functional capacity ("RFC") to perform
a full range of work at all exertional levels but with the following non-exertional
limitations: [Paulin] is limited to simple, routine, repetitive tasks involving no more
than two steps. He can tolerate only occasional decision-making and no more than
occasional changes in the work setting, including changes in procedures and tools.
[Paulin] cannot have any contact with the public and can have no more than
occasional contact with coworkers, including supervisors.
ALJ Sedaca noted Paulin's "history of mental health problems" and treatment with
psychiatrist Dr. Hameedi since 2008, whose treatment notes show that Paulin "has had consistent
complaints of anxiety," as well as depression and agoraphobia. (R. 27-28.) ALJ Sedaca noted that
Dr. Hameedi "opined that [Paulin] would never be capable of sustaining employment." (R. 27.)
ALJ Sedaca gave Dr. Hameedi's opinions "some weight," stating that the "extreme
limitations noted by [Dr. Hameedi] are not fully credited because of the conservative treatment
history and the absence of severe symptoms noted in the treatment records." (R. 30.) ALJ Sedaca
discussed Dr. Hameedi's treatment notes from April 2014 in which Paulin denied any acute
depression and suffered only some residual anxiety, and the August 2014 notes stating that Paulin
was socially isolated but able to go out with friends. (R. 28.) ALJ Sedaca noted that Dr. Hameedi
twice assigned Paulin a GAF score of 60 in March 2014 and March 2015, which was "incompatible
with the particular limitations reported." (R. 28-30.) ALJ Sedaca further "noted that [Paulin] is not
receiving therapy despite his alleged severe limitations" aside from his treatment with Dr. Hameedi.
ALJ Sedaca discussed Dr. Kushner's consultative examination that stated Paulin had
mild limitations following simple instructions, mild to moderate limitations maintaining attention
and concentration, and moderate to marked limitations relating adequately with others and dealing
with stress. (R. 28.) ALJ Sedaca gave Dr. Kushner's opinion "[s]ome to little weight . . . because
his opinion was based only on a one-time examination and some of the more severe restrictions
noted by Dr. Kushner [we]re not supported by the treatment records and the conservative treatment
history." (R. 30.)
Finally, ALJ Sedaca noted that reviewing psychologist Dr. Kamin found that Paulin
had mild restrictions of daily activities, and moderate limitations maintaining social functioning and
maintaining concentration, persistence, or pace. (R. 29.) ALJ Sedaca gave Dr. Kamin's opinions
"some weight" because "overall, the evidence suggest[ed] somewhat greater restrictions than were
noted by Dr. Kamin." (R. 30.) "[L]ess weight" was given to Dr. Kamin's opinions because he never
examined Paulin and did not review the entirety of the medical evidence. (Id.)
ALJ Sedaca found Paulin's "statements concerning the intensity, persistence and
limiting effects of [his] symptoms [we]re not entirely credible." (Id.) Although Paulin "reported
significant problems with difficulty leaving his home and inability to travel independently . . .[,] in
other testimony and in other reports, he is noted to be able to socialize with friends and . . .
neighbors." (Id.) Additionally, ALJ Sedaca wrote, Paulin "conceded that when he was working he
was able to use public transportation independently though he testified that he had been travelling
only with his mother for the past 7 years." (Id.) ALJ Sedaca opined that Paulin's described
limitations also were "incompatible with the relatively minimal treatment he has received." (Id.)
Paulin treated with Dr. Hameedi "several times per year but otherwise" received no therapy (id.);
in particular, Paulin testified that he "ha[d] not received any psychological therapy since 2010" (R.
29). And, although Paulin took psychiatric medications, "there ha[d] been little variation in his
prescriptions since 2009." (R. 30.)
ALJ Sedaca concluded that the above RFC assessment was "supported by the
treatment records showing some mental health problems but a consistent conservative treatment
history." (R. 31.) Moreover, ALJ Sedaca wrote that the RFC was supported by Paulin's "reported
activities like in fact being able to use public transportation when he worked and being able to
concentrate well enough to watch television and even pass a training course for security guard
work." (Id.) Paulin further socialized with one friend and got along with his family members. (Id.)
ALJ Sedaca next determined that Paulin had no past relevant work, but was
considered a younger individual with a high school education who spoke English. (Id.) Considering
Paulin's "age, education, work experience, and residual functional capacity," ALJ Sedaca concluded
that jobs existed in significant numbers that Paulin could perform, including those identified by
vocational expert Julie Andrews such as laundry laborer, industrial cleaner and kitchen helper. (R.
31-32.) ALJ Sedaca accordingly concluded that Paulin had "not been under a disability, as defined
in the Social Security Act, from July 1, 2010, through the date of [her] decision," August 5, 2015.
THE APPLICABLE LAW
Definition Of Disability3/
A person is considered disabled for Social Security benefits purposes when 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),
1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S. Ct. 376, 379 (2003); Barnhart
v. Walton, 535 U.S. 212, 214, 122 S. Ct. 1265, 1268 (2002); Impala v. Astrue, 477 F. App'x 856,
857 (2d Cir. 2012).4/
An individual shall be determined to be under a disability only if [the combined
effects of] his physical or mental impairment or impairments are 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
As the Commissioner notes (Dkt. No. 22: Comm'r Br. at 1, 13-14), Paulin applied for child's
insurance benefits with a disability onset date prior to age 22 (see R. 23, 201-02). See, e.g.,
Camille v. Colvin, 652 F. App'x 25, 26 n.1 (2d Cir. 2016); 42 U.S.C. § 402(d)(1)(G). "In the
context of determining eligibility for disabled adult child's benefits, the term 'disability' has
substantially the same definition as it does in traditional, adult disability cases," and "the
familiar five-step analysis" also applies. Harper v. Berryhill, No. 16-CV-01168, 2017 WL
3085806 at *3 (D. Conn. July 20, 2017) (quotations omitted); accord, e.g., Trombley v.
Colvin, No. 15-CV-00567, 2016 WL 5394723 at *2 n.3 (N.D.N.Y. Sept. 27, 2016).
See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010);
Betances v. Comm'r of Soc. Sec., 206 F. App'x 25, 26 (2d Cir. 2006); Surgeon v. Comm'r
of Soc. Sec., 190 F. App'x 37, 39 (2d Cir. 2006); Rodriguez v. Barnhart, 163 F. App'x 15,
16 (2d Cir. 2005); Malone v. Barnhart, 132 F. App'x 940, 941 (2d Cir. 2005); Butts v.
Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d
Cir. 2005); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v. Barnhart, 311
F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Brown v.
Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999);
Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d
Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S.
Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S. Ct. at 1270.5/
In determining whether an individual is disabled for disability benefit purposes, the
Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or
others; and (4) the claimant's educational background, age, and work experience." Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).6/
Standard Of Review
A court's review of the Commissioner's final decision is limited to determining
whether there is "substantial evidence" in the record as a whole to support such determination. E.g.,
42 U.S.C. § 405(g); Giunta v. Comm'r of Soc. Sec., 440 F. App'x 53, 53 (2d Cir. 2011).7/ "'Thus,
See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 F. App'x at 111; Betances v. Comm'r of
Soc. Sec., 206 F. App'x at 26; Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311
F.3d at 472; Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo
v. Chater, 142 F.3d at 79.
See, e.g., Brunson v. Callahan, No. 98-6229, 199 F.3d 1321 (table), 1999 WL 1012761 at
*1 (2d Cir. Oct. 14, 1999); Brown v. Apfel, 174 F.3d at 62.
See also, e.g., Prince v. Astrue, 514 F. App'x 18, 19 (2d Cir. 2013); Salmini v. Comm'r of
Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010); Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d
Cir.), cert. denied, 551 U.S. 1132, 127 S. Ct. 2981 (2007); Halloran v. Barnhart, 362 F.3d
28, 31 (2d Cir. 2004); Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003); Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.
2000); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Perez v. Chater, 77 F.3d
41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam); Dumas v. Schweiker, 712 F.2d
the role of the district court is quite limited and substantial deference is to be afforded the
Commissioner's decision.'" Morris v. Barnhart, 02 Civ. 0377, 2002 WL 1733804 at *4 (S.D.N.Y.
July 26, 2002) (Peck, M.J.).8/
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla
[and] such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971); accord, e.g.,
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Rosa v. Callahan, 168 F.3d at 77; Tejada v.
Apfel, 167 F.3d at 773-74.9/ "[F]actual issues need not have been resolved by the [Commissioner]
in accordance with what we conceive to be the preponderance of the evidence." Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207 (1983). The
Court must be careful not to "'substitute its own judgment for that of the [Commissioner], even if
it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949
F.2d 57, 59 (2d Cir. 1991).10/
The Court, however, will not defer to the Commissioner's determination if it is "'the
1545, 1550 (2d Cir. 1983).
See also, e.g., Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at *5 (S.D.N.Y. Dec. 9,
1999) (Chin, D.J.) ("The Commissioner's decision is to be afforded considerable deference;
the reviewing court should not substitute its own judgment for that of the Commissioner,
even if it might justifiably have reached a different result upon a de novo review."
(quotations & alterations omitted)).
See also, e.g., Halloran v. Barnhart, 362 F.3d at 31; Jasinski v. Barnhart, 341 F.3d at 184;
Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Brown v. Apfel, 174
F.3d at 61; Perez v. Chater, 77 F.3d at 46.
See also, e.g., Campbell v. Astrue, 465 F. App'x 4, 6 (2d Cir. 2012); Veino v. Barnhart, 312
F.3d at 586.
product of legal error.'" E.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y.
Mar. 29, 2000) (Peck, M.J.); see also, e.g., Douglass v. Astrue, 496 F. App'x 154, 156 (2d Cir.
2012); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on other grounds, 416 F.3d 101
(2d Cir. 2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases).
The Commissioner's regulations set forth a five-step sequence to be used in
evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; see, e.g., Barnhart v. Thomas, 540
U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct.
2287, 2291 (1987). The Supreme Court has articulated the five steps as follows:
Acting pursuant to its statutory rulemaking authority, the agency has promulgated
regulations establishing a five-step sequential evaluation process to determine
disability. If at any step a finding of disability or nondisability can be made, the SSA
will not review the claim further.  At the first step, the agency will find
nondisability unless the claimant shows that he is not working at a "substantial
gainful activity."  At step two, the SSA will find nondisability unless the claimant
shows that he has a "severe impairment," defined as "any impairment or combination
of impairments which significantly limits [the claimant's] physical or mental ability
to do basic work activities."  At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies.  If the claimant's impairment is not on the list, the inquiry proceeds to
step four, at which the SSA assesses whether the claimant can do his previous work;
unless he shows that he cannot, he is determined not to be disabled.  If the
claimant survives the fourth stage, the fifth, and final, step requires the SSA to
consider so-called "vocational factors" (the claimant's age, education, and past work
experience), and to determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 540 U.S. at 24-25, 124 S. Ct. at 379-80 (fns. & citations omitted).11/
The claimant bears the burden of proof as to the first four steps; if the claimant meets
Accord, e.g., Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Rosa v. Callahan, 168
F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; see also, e.g., Jasinski v. Barnhart, 341 F.3d
at 183-84; Shaw v. Chater, 221 F.3d at 132; Brown v. Apfel, 174 F.3d at 62; Balsamo v.
Chater, 142 F.3d 75, 79-80 (2d Cir. 1998); Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala,
54 F.3d 1019, 1022 (2d Cir. 1995); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
the burden of proving that he cannot return to his past work, thereby establishing a prima facie case,
the Commissioner then has the burden of proving the last step, that there is other work the claimant
can perform considering not only his medical capacity but also his age, education and training. See,
e.g., Barnhart v. Thomas, 540 U.S. at 25, 124 S. Ct. at 379-80.12/
The Treating Physician Rule
The "treating physician's rule" is a series of regulations set forth by the Commissioner
in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion.
Specifically, the Commissioner's regulations provide that:
If we find that a treating source's medical opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight.
20 C.F.R. § 404.1527(c)(2); see, e.g., Rugless v. Comm'r of Soc. Sec., 548 F. App'x 698, 699-700
(2d Cir. 2013); Meadors v. Astrue, 370 F. App'x 179, 182 (2d Cir. 2010); Colling v. Barnhart, 254
F. App'x 87, 89 (2d Cir. 2007); Lamorey v. Barnhart, 158 F. App'x 361, 362 (2d Cir. 2006).
Further, the regulations specify that when controlling weight is not given a treating
physician's opinion (because it is not "well-supported" by other medical evidence), the ALJ must
consider the following factors in determining the weight to be given such an opinion: (1) the length
of the treatment relationship and the frequency of examination; (2) the nature and extent of the
treatment relationship; (3) the evidence that supports the treating physician's report; (4) how
consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the
See also, e.g., Selian v. Astrue, 708 F.3d at 418; Betances v. Comm'r of Soc. Sec., 206 F.
App'x 25, 26 (2d Cir. 2006); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003);
Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675
F.2d at 467.
physician in contrast to the condition being treated; and (6) any other factors which may be
significant. 20 C.F.R. § 404.1527(c)(2)-(6); see, e.g., Cichocki v. Astrue, 534 F. App'x 71, 74 (2d
Cir. 2013); Gunter v. Comm'r of Soc. Sec., 361 F. App'x 197, 197 (2d Cir. 2010).13/
When a treating physician provides a favorable report, the claimant "is entitled to an
express recognition from the [ALJ or] Appeals Council of the existence of [the treating physician's]
favorable . . . report and, if the [ALJ or] Council does not credit the findings of that report, to an
explanation of why it does not." Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999); see, e.g.,
Cichocki v. Astrue, 534 F. App'x at 75; Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (ALJ's
failure to consider favorable treating physician evidence ordinarily requires remand pursuant to
Snell but does not require remand where the report was "essentially duplicative of evidence
considered by the ALJ"); Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) ("We of course do
not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, but we do
believe that the crucial factors in any determination must be set forth with sufficient specificity to
enable [reviewing courts] to decide whether the determination is supported by substantial evidence."
(citations omitted)); Ramos v. Barnhart, 02 Civ. 3127, 2003 WL 21032012 at *7, *9 (S.D.N.Y. May
6, 2003) (The ALJ's "'failure to mention such [treating physician report] evidence and set forth the
reasons for his conclusions with sufficient specificity hinders [this Court's] ability . . . to decide
whether his determination is supported by substantial evidence.'").
The Commissioner's "treating physician" regulations were approved by the Second
See also, e.g., Foxman v. Barnhart, 157 F. App'x 344, 346-47 (2d Cir. 2005); Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000);
Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d
496, 503 (2d Cir. 1998).
Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).14/
APPLICATION OF THE FIVE STEP SEQUENCE
Paulin Was Not Engaged In Substantial Gainful Activity
The first inquiry is whether Paulin was engaged in substantial gainful activity after
his application for benefits. "Substantial gainful activity" is defined as work that involves "doing
significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit."
20 C.F.R. § 404.1510. ALJ Sedaca's conclusion that Paulin did not engage in substantial gainful
activity during the applicable time period (see page 16 above) is not disputed. (See generally Dkt.
No. 22: Comm'r Br.) The Court therefore proceeds with the analysis.
Paulin Demonstrated "Severe" Impairments That Significantly Limited
His Ability To Do Basic Work Activities
The second step of the analysis is to determine whether Paulin proved that he had a
severe impairment or combination of impairments that "significantly limit[ed his] physical or mental
ability to do basic work activities." 20 C.F.R. § 404.1520(c). The ability to do basic work activities
is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1522(b).
"Basic work activities" include:
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling
. . . seeing, hearing, and speaking . . . [u]nderstanding, carrying out, and
remembering simple instructions . . . [u]se of judgment . . . [r]esponding
appropriately to supervision, co-workers and usual work situations . . . [d]ealing with
changes in a routine work setting.
20 C.F.R. § 404.1522(b)(1)-(6).
Although not relevant here, the Court notes that the regulations governing the "treating
physician rule" recently changed as to claims filed on or after March 27, 2017. See 20
C.F.R. §§ 404.1527, 404.1520c; Revisions to Rules Regarding the Evaluation of Medical
Evidence, 82 FR 5844-01, 2017 WL 168819 at *5844, *5867-68 (Jan. 18, 2017).
ALJ Sedaca determined that Paulin's severe impairments were social anxiety disorder
and depressive disorder. (See page 16 above.) ALJ Sedaca's findings regarding the step-two
severity of these impairments are not contested. (See generally Dkt. No. 15: Paulin Br.; Dkt. No.
22: Comm'r Br.) Accordingly, the Court proceeds to the third step of the five-part analysis.
Paulin Did Not Have A Disability Listed In Appendix 1 Of The Regulations
The third step of the five-step test requires a determination of whether Paulin had an
impairment listed in Appendix 1 of the Regulations. 20 C.F.R. Pt. 404, Subpt. P, App. 1. "These
are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude
gainful employment. If a claimant's condition meets or equals the 'listed' impairments, he or she is
conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019,
1022 (2d Cir. 1995).
ALJ Sedaca found that notwithstanding Paulin's severe impairments, he did "not have
an impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1," giving "special consideration
to the listings for mental disorders (12.00)." (See page 16 above.) ALJ Sedaca stated that she
compared the record medical evidence to the listing requirements, and found that Paulin had not met
the necessary criteria. (R. 26-27.) Because ALJ Sedaca's finding that Paulin's impairments do not
meet or medically equal the listed conditions is not disputed by the parties (see generally Dkt. No.
15: Paulin Br.; Dkt. No. 22: Comm'r Br.), the Court proceeds with the five-step analysis.
ALJ Sedaca's Evaluation Of The Medical Evidence
"The failure to provide '''good reasons" for not crediting the opinion of a claimant's
treating physician is a ground for remand.' The ALJ is not permitted to substitute his own expertise
or view of the medical proof for the treating physician's opinion or for any competent medical
opinion." Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (per curiam) (citation omitted); see
also, e.g., Valentin v. Berryhill, 16 Civ. 2956, 2017 WL 3917004 at *12 (S.D.N.Y. Sept. 6, 2017)
("The Second Circuit has stated that it will 'not hesitate to remand when the Commissioner has not
provided "good reasons" for the weight given to a treating physician[']s opinion and . . . will
continue remanding when we encounter opinions from ALJs that do not comprehensively set forth
reasons for the weight assigned to a treating physician's opinion.'"); Scheurer v. Berryhill, No.
16-CV-06142, 2017 WL 3896405 at *16 (W.D.N.Y. Sept. 6, 2017) (same).
"'[B]ecause mental disabilities are difficult to diagnose without subjective, in-person
examination, the treating physician rule is particularly important in the context of mental health.'"
Garcia v. Colvin, 15 Civ. 5516, 2016 WL 845282 at *7 (S.D.N.Y. Mar. 3, 2016); see also, e.g.,
Mendez v. Comm'r of Soc. Sec., 15 Civ. 8017, 2017 WL 1194672 at *13 (S.D.N.Y. Feb. 27, 2017)
("'A mental health patient may have good days and bad days; [he] may respond to different stressors
that are not always active. Thus, the longitudinal relationship between a mental health patient and
[his] treating physician provides the physician with a rich and nuanced understanding of the patient's
health that cannot be readily achieved by a single consultative examination."'), R. & R. adopted,
2017 WL 1194687 (S.D.N.Y. Mar. 30, 2017).
ALJ Sedaca did not appropriately apply the treating physician rule in evaluating Dr.
Hameedi's opinions. At the hearing, ALJ Sedaca asked Paulin why he was not attending "talk
therapy," and questioned Paulin's mother why Paulin did not attend therapy in addition to his
monthly treatment sessions with Dr. Hameedi. (See pages 3-5 above.) In discounting Dr. Hameedi's
opinions, ALJ Sedaca highlighted Paulin's "conservative treatment history," specifically noting "that
[Paulin] is not receiving therapy despite his alleged severe limitations." (See pages 16-17 above.)
Both Paulin and his mother testified that Paulin did not receive any additional therapy
because he had not obtained a referral from Dr. Hameedi. (See pages 3, 5 above.) However, Dr.
Hameedi may have had a reason for not referring Paulin for "talk therapy" or other treatment,
considering that his treatment sessions with Paulin were up to an hour and a half long and thus
themselves might be considered "talk therapy." (See page 5 above; Dkt. No. 15: Paulin Br. at 14
("[T]he fact that Mr. Paulin does not have a weekly psychologist in addition to his monthly
psychiatrist should not be a factor here as the psychiatrist Dr. Hameedi appears to give 'talk therapy'
to the claimant in exceptionally long 60-90 minute sessions . . . .").) If so, that would contradict ALJ
Sedaca's conclusion that Paulin "is not receiving therapy," as opposed to mere medication
management with Dr. Hameedi. (See page 17 above.) Moreover, ALJ Sedaca cited no medical
testimony or records stating that Paulin would benefit from further therapy in addition to his
treatment with Dr. Hameedi. ALJ Sedaca improperly substituted her own judgment regarding the
propriety of further "talk therapy" instead of relying on a competent medical opinion. See, e.g.,
Greek v. Colvin, 802 F.3d at 375 ("The ALJ is not permitted to substitute his own expertise or view
of the medical proof for the treating physician's opinion or for any competent medical opinion.").
Moreover, as Paulin argues, Dr. Hameedi's opinion "was given 'some weight,' but it
was unclear how much. The ALJ did indicate that the extreme limitations found by Dr. Hameedi
were 'not fully credited,' but there was no mention as to the many marked limitations." (Paulin Br.
at 10.) It is not clear whether ALJ Sedaca discounted all of the more severe (including marked)
limitations that Dr. Hameedi noted in his March 18, 2014 and March 13, 2015 psychiatric reports,
or was referring to the extreme limitations noted only in the latter report. (See pages 11-12 above;
see also Dkt. No. 23: Paulin Reply Br. at 4 ("The ALJ apparently does not mention whether these
'marked' limitations are credited by him or not. If they were, [Paulin] would certainly have been
considered disabled.").) "[A]n ALJ must always give good, clear reasons in his decision for the
weight given to the claimant's treating physician's opinion." Bataille v. Astrue, No. 11-CV-0353,
2013 WL 3816742 at *4 (E.D.N.Y. July 22, 2013). Without a more specific description of the
limitations ALJ Sedaca found unsupported by the treatment records and why, the Court cannot fully
discern the reasoning behind assigning Dr. Hameedi's opinions "some weight," or determine which
portions of his opinions were given such weight.15/
Furthermore, ALJ Sedaca used similar language when assigning "[s]ome to little
weight" to Dr. Kushner's report that included mild, moderate and marked limitations in different
functional categories, finding that "some of the more severe restrictions noted by Dr. Kushner [we]re
not supported by the treatment records and the conservative treatment history," without further
explanation. (See pages 14, 17 above.) If by "conservative treatment history" ALJ Sedaca means
the lack of "talk therapy," that reasoning is flawed for the reasons set forth above. And, as with Dr.
Hameedi's opinion (which to some degree is consistent with Dr. Kushner's insofar as both found
marked limitations in similar categories of social interaction and dealing with stress), it is ambiguous
which portions of Dr. Kushner's opinion ALJ Sedaca believed were entitled to "some" weight.
Compounding the lack of clarity, when reviewing Dr. Kamin's report that included
See also, e.g., Nunez v. Berryhill, 16 Civ. 5078, 2017 WL 3495213 at *26 n.67 (S.D.N.Y.
Aug. 11, 2017) ("[T]he ALJ did not specify what portion of Dr. Bhanusali's opinion was
given 'some weight.' It is unclear whether the ALJ gave all of Dr. Bhanusali's opinions some
weight or whether the ALJ gave only Dr. Bhanusali's opinion on plaintiff's postural activities
some weight."); Callahan v. Colvin, No. 14-CV-06553, 2015 WL 5712334 at *6 (W.D.N.Y.
Sept. 29, 2015) ("Overall, the ALJ assigned only 'some weight' to Dr. Holder's opinion, again
stating without explanation that it 'is inconsistent with the objective medical evidentiary
record and his own treatment records discussed above, when viewed in its totality.' . . . His
generic statement that Dr. Holder's opinion is 'inconsistent' with the record does not allow
for meaningful judicial review and does not constitute a 'good reason' for purposes of
fulfilling the Commissioner's duty under the applicable regulations."); Matthews v. Comm'r
of Soc. Sec., No. 13-CV-195, 2014 WL 5392991 at *5 n.1 (D. Vt. Oct. 23, 2014) ("The
ALJ's statement that he afforded 'some' weight to Dr. Diercksen's opinions is vague: is 'some'
a substantial amount or just a little?").
mild to moderate limitations, ALJ Sedaca gave Dr. Kamin's opinions "some weight" because
"overall, the evidence suggest[ed] somewhat greater restrictions than were noted by Dr. Kamin,"
again without explanation. (See pages 15, 17 above (emphasis added).) The Court accordingly
lacks a clear assessment of Paulin's mental limitations, and questions whether the severity of those
limitations was properly accounted for in ALJ Sedaca's ultimate RFC and disability determinations.
Finally, ALJ Sedaca's credibility and RFC determinations were based, in part, on a
mischaracterization of the hearing testimony. ALJ Sedaca wrote that, while Paulin "reported
significant problems with difficulty leaving his home and inability to travel independently . . .[,] in
other testimony and in other reports, he is noted to be able to socialize with friends and . . .
neighbors." (See pages 17-18 above.) ALJ Sedaca highlighted that Paulin "conceded that when he
was working he was able to use public transportation independently though he testified that he had
been travelling only with his mother for the past 7 years." (See page 18 above.) Additionally, ALJ
Sedaca stated that the RFC was supported by Paulin's "reported activities like in fact being able to
use public transportation when he worked and being able to concentrate well enough to watch
television and even pass a training course for security guard work." (Id.)
ALJ Sedaca placed undue emphasis on what she viewed as a "gotcha" moment during
the hearing. Paulin testified that his "mother usually takes [him] places . . . because [he] ha[s]
difficulties going some places . . . by [him]self," and that "for the last seven years" he only used
public transportation when accompanied by his mother due to his "nervousness, . . . panic attacks,
fears of crossing the street, and feeling paranoid." (See page 2 above.) Later in the hearing, Paulin
testified that he got to work by taking the bus or getting a ride from his brother, and admitted that
he had to "force [him]self" to go alone if his mother was unavailable. (See page 3 above.)
Whatever contradiction these statements present, ALJ Sedaca ignored that Paulin was
fired from all three security guard positions for lateness, getting "to things slower than others" and
"missing a lot of days." (See page 3 above; see also Paulin Br. at 5 ("Whenever he was obliged to
take public transportation to the job assignment on his own, he would take too long to get to work
and be tardy.").) Paulin's mother's testimony also emphasized Paulin's difficulties traveling alone:
Okay. And what about Labar, does he ever take a bus or a train?
No, not recently. He used to years ago but then when he was taking the train
or the bus to work, we would start him two and three hours and it would take
him - - he would still get to work late because he - - he would stand at the
corner for half an hour waiting for no cars to be there for him to cross the
Okay. Let's talk about the security work. How did he get to work when he
was doing the security jobs?
Well, when he was getting the security job, if I couldn't take him, my son
took him or if he had to take the bus or the train, he wouldn't get there in
time. He would never get there on time. And this is - - was one of the
reasons that they fired him because he couldn't get to work. If the buses were
too crowded, the trains were too crowded, he would wait. He would wait to
cross the street. It was - - it was just horrendous and I had to work.
(R. 89; see also Paulin Br. at 6 (Paulin's mother "testified that [Paulin] tried very hard to work at
three jobs, but simply could not succeed because of his inability to get to work on public
transportation on his own at a reasonable rate of speed, as well as his fear of going to work in
Paulin's and his mother's testimony indicated that he was incapable of traveling alone.
As such, and considering the testimony as a whole, that Paulin had to "force [him]self" to use public
transportation evidences the severity of his psychiatric limitations, not his ability to work. (See
Paulin Reply Br. at 6-7 ("The ALJ did rely on the fact that the claimant took public transportation
sometimes to get to those jobs on his own . . . . However, these work attempts are actually the best
evidence of disability.").) Considering the testimony in context also raises serious questions
regarding vocational expert Julie Andrews' testimony. One of ALJ Sedaca's hypothetical questions
to Andrews asked: "In addition to the above limitations, the individual is now limited to unscheduled
absences more than . . . two times per month." (See page 6 above.) Andrews testified that such
absences would affect available job positions "to the point where there would not be any full-time
competitive employment positions that would be viable." (Id.) ALJ Sedaca's final hypothetical
asked: "So we're not talking about the unscheduled absences or the psychological off-task but
instead . . . - - let's say lateness to work - - we'll say if it is more than . . . five times per month,
would that [a]ffect the above jobs?" (Id.) Andrews responded that "[i]t would be unlikely that the
individual would be able to maintain employment because of that." (Id.) These hypotheticals are
no longer irrelevant to ALJ Sedaca's RFC and ultimate disability determination when Paulin's ability
to travel independently is properly viewed as a detriment to his work ability.
ALJ Sedaca should have contacted Dr. Hameedi to ask whether his treatment sessions
with Paulin encompassed "talk therapy," whether additional therapy would benefit Paulin and, if so,
why Paulin was not referred, before rejecting Dr. Hameedi's opinions based on an allegedly
conservative treatment history.16/ On remand, the ALJ should seek this information from Dr.
The Court acknowledges that the GAF scores of 60 contained in Dr. Hameedi's March 2014
and March 2015 psychiatric reports are, as ALJ Sedaca noted, incompatible with the marked
to extreme limitations noted. (See page 17 above.) ALJ Sedaca thus should have inquired
whether these GAF scores had any probative value in terms of Paulin's overall functioning
and the particular limitations noted in the two psychiatric reports. See, e.g., Finnegan v.
Berryhill, No. 16-CV-03939, 2017 WL 4990565 at *4 (E.D.N.Y. Oct. 30, 2017) ("[T]o any
extent the ALJ was concerned about inconsistencies or lack of support in the record relied
upon by the treating physicians, the ALJ has a sua sponte duty to contact the treating
physicians to determine if the required information was available."); L'Ouverture v. Comm'r
of Soc. Sec., 16 Civ. 1809, 2017 WL 4157369 at *15 (S.D.N.Y. Sept. 18, 2017) ("'[I]f a
physician's finding in a report is believed to be insufficiently explained, lacking in support,
or inconsistent with the physician's other reports, the ALJ must seek clarification and
additional information from the physician.'"); Busby v. Berryhill, No. 16-CV-664, 2017 WL
Hameedi and reconsider, if necessary, Paulin's treatment history. The ALJ also should more fully
explain the weight given to Dr. Hameedi's opinions and why, providing clear reasons, supported by
the record, for any subsequent determination. Finally, the ALJ should reevaluate Paulin's ability to
travel independently, and assess what weight, if any, that evidence should be given in light of
Paulin's work history, the hearing testimony and the remainder of the record evidence.
For the reasons set forth above, the Commissioner's motion (Dkt. No. 21) is DENIED
and Paulin's motion (Dkt. No. 14) is GRANTED to the extent of remanding the case to the
Commissioner for further consideration.
New York, New York
November 27, 2017
Andrew J. Peck
United States Magistrate Judge
Copies ECF to:
3575893 at *2 (D. Conn. Aug. 18, 2017) ("When an ALJ perceives inconsistencies in a
treating physician's report, the ALJ bears an affirmative duty to seek out more information
from the treating physician and to develop the administrative record accordingly by making
every reasonable effort to re-contact the treating source for clarification of the reasoning of
the opinion." (citation & quotations omitted)).
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