Lobbe v. Berryhill

Filing 24

OPINION AND ORDER re: 16 CROSS MOTION for Judgment on the Pleadings filed by Nancy A. Berryhill, 12 MOTION for Judgment on the Pleadings filed by Jennifer Patricia Lobbe. Accordingly, for all the foregoing reasons, plai ntiff's motion for judgment on the pleadings is granted, and the Commissioner's motion for judgment on the pleadings is denied. The case is remanded for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of the Court is respectfully requested to mark this matter closed. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 3/20/2019) Copies Transmitted By Chambers. (ne) Transmission to Orders and Judgments Clerk for processing.

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Plaintiff,

17 Civ.

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5589

(HBP)

OPINION
AND ORDER

Defendant.

-----------------------------------x
PITMAN, United States Magistrate Judge:

Introduction

Plaintiff brings this action pursuant to section 205(g)
of the Social Security Act

(the "Act"),

42 U.S.C. § 405(g),

seeking judicial review of a final decision of the Commissioner
of Social Security ("Commissioner") denying her application for
supplemental security income benefits

("SSI").

Plaintiff and the

Commissioner have both moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure
(Docket Item ("D. I.")

12, 16).

Both parties have consented to my

exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c).
For the reasons set forth below, plaintiff's motion is granted,
and the Commissioner's motion is denied.

i

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- .. ····- .. .. ...-- .......•--·-··--·- '.

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,

I.

i

I

II.

Facts 1

A.

Procedural Background

Plaintiff filed an application for SSI on May 16, 2013,
alleging that she became disabled on January 1, 2012, due to
bipolar disorder, posttraumatic stress disorder, anxiety disorder,

fibromyalgia and chronic pain syndrome

(Tr. 245).

Her

application for benefits was initially denied on February 3,
2014, and she requested, and was granted, a hearing before an
administrative law judge ("ALJ")
2015 and November 24,

(Tr. 21,

91, 16).

On July 21,

2015, plaintiff and her attorney appeared

before ALJ Elias Feuer for a hearing at which plaintiff and a
vocational expert testified (Tr.

36-82).

On March 14, 2016, the

ALJ issued his decision finding that plaintiff was not disabled
(Tr. 19-35).

This decision became the final decision of the

Commissioner on May 22, 2017 when the Appeals Council denied
plaintiff's request for review (Tr. 1-3).
commenced this action on July 21, 2017,

Plaintiff timely

seeking review of the

LI recite only those facts relevant to the resolution of the
pending motions.
The administrative record that the Commissioner
filed pursuant to 42 U.S.C. § 405(g) sets out plaintiff's social
and medical history more fully (Administrative Record, dated Dec.
19, 2017 (D.I. 11) ("Tr.")).
2

Commissioner's decision (Complaint, dated July 21, 2017

(D.I.

1)) .

B.

Social Background

Plaintiff was born on September 6, 1974 and was 38
years old at the time she applied for SSI
an eleventh-grade education (Tr. 246).

(Tr. 211-12).

She has

As of the date of her

application, plaintiff lived with her teenage daughter in the
Bronx (Tr. 212).
Plaintiff stated in her Disability Report, dated May
16, 2013, that she worked as a waitress in a bar from 2010 to
2012

(Tr. 246).

In her "Function Report," plaintiff stated that

she had no problems with personal care and that she took her
daughter to school (Tr. 253-54).

She was able to prepare meals

and do light cleaning, although sometimes she needed assistance
if her anxiety was too severe (Tr. 254-55).

Although plaintiff

left her home to take her daughter to school and to pick her up,
she was too nervous to drive or to go to crowded places
56).

(Tr. 255-

Plaintiff's leisure activities included reading, doing

crossword puzzles and doing her daughter's hair, but she stated
that her inability to focus sometimes limited her ability to
engage in these activities

(Tr. 256).

3

C.

Medical Background

1.

Medical Records Concerning
Plaintiff's Mental Issues

a.

Dr. Sidiki Dabo

Dr. Sidiki Dabo, a psychiatrist, treated plaintiff from
March through July of 2013 and provided a medical source statement for plaintiff dated December 13, 2013

(Tr. 354-64).

At plaintiff's March 5, 2013 appointment, she complained of exhaustion, inability to focus due to anxiety, nightmares and panic attacks

(Tr. 363).

Dr. Dabo observed that

plaintiff appeared mildly distressed and became tearful when
telling her life story (Tr. 363).

Plaintiff's mood was de-

pressed, anxious and stressed, and she expressed excessive worry,
anticipatory fears,

anger, worries about possible future prob-

lems, obsessions, compulsions and superstitions

(Tr. 363).

Plaintiff's attitude was cooperative, her awareness, orientation
and psychomotor 2 activity were normal, and she did not exhibit
abnormal body movements

(Tr. 363)

and judgment to be fair

Dr. Dabo found her insight

(Tr. 363)

Psychomotor means "pertaining to motor effects of cerebral
or psychic activity." Dorland's Illustrated Medical Dictionary,
at 1549 (32nd ed. 2012) ("Dorland's")
2

4

In April 2013, plaintiff reported that she was feeling
better, with improved sleep, energy level and concentration and
decreased appetite and nightmares

(Tr. 360).

She was hopeful

about life and the future and her affect was brighter (Tr. 360)
Plaintiff still felt panicky sometimes, but her panic attacks had
decreased (Tr. 360) .

Dr. Dabo's assessment of plaintiff's mood,

attitude, awareness, orientation and psychomotor activity was
similar to his March 2013 assessment, but he added that plaintiff
exhibited moderate aggression, fair impulse and anger control and
low need for immediate gratification (Tr. 360).

Dr. Dabo diag-

nosed plaintiff with mood disorder, not otherwise specified, and
panic disorder without agoraphobia

(Tr. 362) . 3

3

Mood disorder is defined in the DSM-IV as a "mental
disorder[] whose [sic] essential feature is a disturbance of mood
manifested as one or more episodes of mania, hypomania,
depression, or some combination." Dorland's at 551.
Panic disorder is defined in the DSM-IV as
an anxiety disorder characterized by recurrent panic
(anxiety) attacks, episodes of intense apprehension,
fear, or terror associated with somatic symptoms such
as dyspnea, hyperventilation, palpitations, dizziness,
vertigo, faintness, or shakiness and with psychological
symptoms such as feelings of unreality
(depersonalization or derealization) or fears of dying,
going insane, or losing control; there is usually
chronic nervousness and tension between attacks.
Dorland's at 552.
5

In July 2013, Dr. Dabo screened plaintiff for depression using the PHQ-9.

1

Plaintiff reported having a poor appetite

or overeating, feeling bad about herself, having trouble concentrating on things, such as reading the newspaper or watching
television, and either moving or speaking too slowly or being too
fidgety or restless nearly every day (Tr. 357).

Plaintiff

reported that she had trouble falling asleep or staying asleep or
that she was sleeping too much, although she also reported that
she was sleeping better (Tr. 357).

Plaintiff reported having

little interest or pleasure in doing things,

feeling down,

depressed or hopeless, and feeling tired or having little energy
more than half the days

(Tr. 357).

suicidal or similar ideations

Plaintiff did not express any

(Tr. 357) .

Dr. Dabo calculated

plaintiff's PHQ-9 score at 21, a score that is indicative of
severe depression (Tr. 357).

4

The PHQ-9 is a questionnaire used to assess the severity of
a patient's depression.
A score of 20 to 27 indicates severe
depression; a score of 15 to 19 indicates moderately severe
depression; a score of 10 to 14 indicates moderate depression;
and a score of 5 to 9 indicates mild depression.
See PHO-9
Questionnaire for Depression Scoring and Interpretation,
University of Michigan,
http://www.med.umich.edu/linfo/FHP/practiceguides/depress/score.pdf (last visited Feb. 21,
2019) .
6

Plaintiff reported that her fibromyalgia 5 symptoms had
improved (Tr. 357).

She felt stressed because she had broken up

with her boyfriend and had no drive or motivation to do things
(Tr. 357).

She reported panic attacks when she was alone or ran

errands unaccompanied (Tr. 357).

Plaintiff told Dr. Dabo that

she felt paranoid, that she felt like no one wanted to see her
and that people were talking about her

(Tr. 357).

In a December 13, 2013 medical source statement, Dr.
Dabo opined that plaintiff's impairments affected her ability to
understand, remember and carry out instructions

(Tr. 354).

Specifically, Dr. Dabo found that plaintiff had marked restrictions in her ability to carry out complex instructions and make
judgments on complex work-related decisions, as well as moderate
restrictions in her ability to understand,

remember and carry out

simple instructions, make judgments on simple work-related
decisions and understand and remember complex instructions

(Tr.

Dr. Dabo based these assessments on plaintiff's poor

354) .

concentration, limited capacity to process complex information or
instructions, chronic suicidal thoughts 6 and paranoia and noted
"Fibromyalgia refers to "pain and stiffness in the muscles
and joints that either is diffuse or has multiple trigger
points." Dorland's at 703.
Dr. Dabo's treatment records are inconsistent with respect
In July 2013, plaintiff did
to plaintiff's suicidal ideation.
(continued ... )
6

7

that plaintiff had a history of psychiatric hospitalization (Tr.
354) .
Dr. Dabo also opined that plaintiff's impairment
affected her ability to interact appropriately with supervisors,
co-workers and the public, as well as to respond to changes in a
routine work setting (Tr. 355).

Specifically, Dr. Dabo found

that plaintiff had moderate restrictions in her ability to
interact appropriately with co-workers and respond appropriately
to usual work situations and to changes in a routine work setting, as well as mild restrictions in her ability to interact
appropriately with the public and with supervisors

(Tr. 355).

Dr. Dabo based these assessments on a finding that plaintiff was
easily annoyed or irritated by people and did not feel comfortable around people (Tr. 355).
Finally, Dr. Dabo opined that plaintiff was unable to
fully concentrate and to organize her thinking, which undermined
her productivity and her ability to relate to others

(Tr. 355)

Dr. Dabo based this assessment on plaintiff's low cognitive

6

( • • • continued)
not express any suicidal or similar ideations (Tr. 357).
However, in Dr. Dabo's December 13, 2013 medical source
statement, he reported that plaintiff suffered from chronic
suicidal thoughts (Tr. 354) .

8

flexibility and her limited capacity to process and follow some
instructions or information (Tr. 355).

b.

Dr. Fredelyn Engelberg Damari

Dr. Fredelyn Engelberg Damari, a consulting psychologist, evaluated plaintiff on July 2, 2013

(Tr.

343-47).

Plain-

tiff reported to Dr. Damari that she had had a previous psychiatric evaluation at Jacobi Hospital and that she had monthly
treatment sessions with Dr. Sidiki Dabo

(Tr.

343).

At the time

of the evaluation, plaintiff was taking divalproex sodium,
Cymbalta, prazosin and Xanax (Tr. 343) .

1

7

Divalproex sodium, also known as valproic acid, is an
anticonvulsant used to treat seizures and mania in people with
bipolar disorder.
Valproic Acid, MedlinePlus, https://
medlineplus.gov/druginfo/meds/a682412.html (last visited Feb. 13,
2019) .
Cymbalta, the brand name for duloxetine, is a selective
serotonin and norepinephr ine reuptake inhibitor ( "SNRI") "used to
treat depression and generalized anxiety disorder .
[It] is
also used to treat pain and tingling caused by diabetic
neuropathy .
. and fibromyalgia .
" Duloxetine,
MedlinePlus, https://medlineplus.gov/druginfo/meds/a604030.html
(last visited Feb. 13, 2019).
Prazosin is an alpha-blocker used to treat high blood
pressure; it is also used to treat "sleep problems associated
with post-traumatic stress disorder."
Prazosin, MedlinePlus,
https://medlineplus.gov/druginfo/meds/a682245.html (last visited
Feb. 14, 2019) .
Xanax, a brand name for alprazolam,

9

is a benzodiazepine
(continued ... )

Plaintiff reported difficulty falling asleep, loss of
appetite,

"depressive symptomatology with dysphoric moods,

crying spells, psychomotor agitation,
ties, and some social withdrawal"

9

concentration difficul-

(Tr. 3 4 3) .

She also reported

suffering from postpartum depression (Tr. 343).
any suicidal thoughts

(Tr. 343-44).

8

Plaintiff denied

Plaintiff also reported that

she worried excessively, had difficulty concentrating and experienced nightmares

(Tr. 344).

Plaintiff also reported that she had

suffered panic attacks that were so severe that she urinated on
herself from anxiety (Tr.

344).

Plaintiff reported that Cymbalta

helped her, but that her medications affected her memory (Tr.
344) .
Dr. Damari found plaintiff to be cooperative and her
manner of relating, social skills and overall presentation to be
adequate

7

(Tr. 344).

Her affect was very anxious and her mood

continued)
"used to treat anxiety disorders and panic disorder."
Alprazolam, MedlinePlus, https://medlineplus.gov/druginfo/meds/
a684001.html (last visited Feb. 13, 2019).
( •••

Dysphoric moods are characterized by "disquiet;
restlessness; malaise." Dorland's at 579.
Psychomotor agitation means "excessive, purposeless
cognitive and motor activity or restlessness, usually associated
with a state of tension or anxiety."
Dorland's at 40.
9

10

dysthymic 10 (Tr. 345).

Plaintiff's attention and concentration

were impaired due to emotional distress; plaintiff was unable to
do a simple arithmetic problem and was unable to count backwards
from twenty by threes

(Tr. 345).

Her recent and remote memory

skills were also impaired due to emotional distress; although
plaintiff was able to repeat three out of three objects immediately, after five minutes, she could recall only one out of three
objects

(Tr. 345).

Plaintiff could repeat four digits forward,

but she was unable to state three digits backwards

(Tr. 345).

Plaintiff's intellectual functioning was below average and her
general fund of information was limited (Tr. 345).
In her medical source statement, Dr. Damari wrote that
plaintiff
is able to follow and understand simple directions and
instructions.
She is able to perform simple tasks
independently.
She is moderately impaired in the
ability to maintain attention and concentration.
She
is significantly impaired in the ability to maintain a
regular schedule.
She is moderately impaired in the
ability to learn new tasks.
She is significantly
impaired in the ability to perform complex tasks independently.
She is able to make appropriate decisions.
She is moderately impaired in the ability to relate
adequately with others.
She is significantly impaired
in the ability to appropriately deal with stress.
The results of the present evaluation appear to be
consistent with psychiatric problems, and this may

coysthymic means "characterized by symptoms of mild
depression." Dorland's at 582.
1

11

significantly interfere with the claimant's ability to
function on a daily basis.
(Tr. 346).

Dr. Damari diagnosed plaintiff with mood disorder,

anxiety disorder,

11

posttraumatic stress disorder 12 and

fibromyalgia, and she recommended that plaintiff continue with
psychiatric treatment

c.

(Tr. 346).

Dr. Wali Mohammad

Dr. Wali Mohammad, a psychiatrist, treated plaintiff
from January through November of 2015

(Tr.

464-99,

632-39).

At her initial evaluation on January 29, 2015, plaintiff reported suffering from depression, which worsened after her
cousin's suicide (Tr. 485).

She also reported that although she

had been prescribed various antidepressants,

including Cymbalta,

Wellbutrin, Lexapro and Prozac,~ 3 she had stopped taking any
11

Anxiety disorders are defined in the DSM-IV as "a group of
mental disorders in which anxiety and avoidance behavior
predominate." Dorland's at 547.
12

Posttraumatic stress disorder is defined in the DSM-IV as
"an anxiety disorder caused by exposure to an intensely traumatic
event; characterized by reexperiencing the traumatic event in
recurrent intrusive recollections, nightmares, or flashbacks, by
avoidance of trauma-associated stimuli, by generalized numbing of
emotional responsiveness, and by hyperalertness and difficulty in
sleeping, remembering, or concentrating."
Dorland's at 552.
13

Wellbutrin is a brand name for bupropion, which is an
antidepressant.
Bupropion, MedlinePlus, https://medlineplus.gov/
druginfo/meds/a695033.html (last visited Feb. 15, 2019).
(continued ... )
12

psychiatric medication other than Xanax

(Tr.

485).

Plaintiff

reported feeling anxious all the time and being easily frustrated
(Tr.

485)
In his evaluation of plaintiff's mental status,

Dr.

Mohammad noted that plaintiff's attitude was cooperative, her
speech was articulate,
was anxious,

coherent and relevant but that her mood

irritable and depressed (Tr.

487).

Plaintiff

exhibited anxiety or panic, but her affect was appropriate, her
psychomotor activity was normal, her thought process was intact
and she experienced no hallucinations, delusions or impaired
self-perception (Tr.
thoughts,

487).

She had no suicidal or homicidal

she was oriented as to time, place and person and her

memory was intact

(Tr. 487).

subtractions

487)

(Tr.

She was able to perform serial

Finally, Dr. Mohammad found that plain-

tiff's insight was good and her judgment was fair

(Tr.

487).

13

( • • • continued)
Lexapro is the brand name for escitalopram, which is a
selective serotonin reuptake inhibitor ( "SSRI") "used to treat
depression and generalized anxiety disorder."
Escitalooram,
MedlinePlus, https://medlineplus.gov/druginfo/meds/a603005.html
(last visited Feb. 15, 2019).

Prozac is a brand name for fluoxetine, which is also an SSRI
"used to treat depression, obsessive-compulsive disorder .
some eating disorders, and panic attacks."
Fluoxetine,
MedlinePlus, https://medlineplus.gov/druginfo/meds/a689006.html
(last visited Feb. 15, 2019).
13

Dr. Mohammad screened plaintiff using the PHQ-9, and
scored plaintiff at 27, which indicated severe depression (Tr.
4 87) .

Dr. Mohammad diagnosed plaintiff as suffering from
"major depressive disorder,

recurrent episode, severe degree,

without mention of psychotic behavior"

(Tr. 487-88).

He pre-

scribed venlafaxine" 4 and directed plaintiff to follow up in two
weeks

(Tr. 488).
On February 26, 2015, plaintiff reported to Dr.

Mohammad that she was suffering from fibromyalgia and stress
related to her daughter's misbehavior (Tr. 482).

The results of

plaintiff's mental status evaluation were the same as on January
29, 2015,

including her ability to perform serial subtractions,

but Dr. Mohammad did not report that plaintiff was irritable (Tr.
Dr. Mohammad's diagnosis remained the same, and he di-

482) .

rected plaintiff to follow up in one month (Tr. 483).
On April 22, 2015, plaintiff complained that she was
not sleeping well and reported changes in her sleep pattern (Tr.
Plaintiff also reported that she did not feel motivated to

4 7 9) .

do anything and sometimes was not even able to take a shower (Tr.

Venlafaxine is an SNRI "used to treat depression."
Venlafaxine, MedlinePlus, https://medlineplus.gov/druginfo/meds/
a694020.html (last visited Feb. 15, 2019)
:

4

14

4 7 9) .

She wanted to increase her medication (Tr. 479).

The

results of plaintiff's mental status evaluation were the same as
on February 26, 2015, except that she was unable to perform
serial subtractions

(Tr. 479).

Dr. Mohammad's diagnosis still

remained the same, and he directed plaintiff to follow up in one
month (Tr. 480).
On May 20, 2015, Dr. Mohammad noted that plaintiff was
very depressed and cried during her appointment
reported being in pain and unable to function

(Tr. 476)

(Tr. 476).

She
The

results of plaintiff's mental status evaluation differed from
April 22, 2015 in that she was able to perform serial subtractions, but her short term memory was impaired and her insight was
limited (Tr. 476).

Dr. Mohammad's diagnosis remained the same,

and he again directed plaintiff to follow up in one month (Tr.
477-78).
On June 30, 2015, plaintiff had run out of medication
and was suffering from withdrawal,
fainting sensation (Tr. 473).

including dizziness and a

She reported feeling overwhelmed

and having no support system (Tr. 473).

Plaintiff was unable to

perform serial subtractions, but her short term memory was intact
and her insight was good (Tr. 473).

Dr. Mohammad's diagnosis was

still unchanged, but he noted that plaintiff was not fully
compliant with her medication regimen and had not attended
15

follow-up appointments as instructed; he directed plaintiff to
follow up in one month (Tr. 474-75).
On July 15, 2015,

Dr. Mohammad completed a mental

impairment questionnaire concerning plaintiff

(Tr. 593-97).

He

noted that plaintiff suffered from major depression, recurrent
type, as well as chronic pain from arthritis and fibromyalgia
(Tr. 593).

He opined that plaintiff's diagnoses and limitations

would last at least 12 months and that plaintiff was not a
malingerer; she had not been hospitalized for her symptoms
593) .

(Tr.

Dr. Mohammad noted that plaintiff's signs and symptoms

included depressed mood, persistent or generalized anxiety,
irritable affect,

feelings of guilt or worthlessness, difficulty

thinking or concentrating, easy distractibility, poor short-term
memory, recurrent panic attacks, anhedonia 15 and pervasive loss
of interests, appetite disturbances and weight change, decreased
energy, motor tension and psychomotor abnormalities

(Tr. 594).

Of those signs and symptoms, the most frequent or severe were
depression, fatigue,

difficulty concentrating, anhedonia, insom-

nia and anxiety (Tr. 595).
Dr. Mohammad noted that plaintiff had not experienced
any episodes of decompensation or deterioration in a work or

Anhedonia means a "total loss of feeling of pleasure in
acts that normally give pleasure." Dorland's at 91.
: 5

16

work-like setting (Tr. 595).

However, in response to a question

asking him to estimate plaintiff's abilities to perform mental
activities in a competitive environment on a sustained and
ongoing basis, he reported that plaintiff had marked limitations
with respect to her ability to:

(1) understand, remember and

carry out detailed instructions;

(2) maintain attention and

concentration for extended periods;

(3) perform activities within

a schedule and consistently be punctual;
routine without supervision;

(4)

sustain ordinary

(5) work in coordination with or

near others without being distracted by them;
work-related decisions;

(6) make simple

(7) perform at a consistent pace without

rest periods of unreasonable length or frequency;
appropriately with the public;
request assistance;

interact

(9) ask simple questions or

(10) accept instructions and respond appro-

priately to criticism from supervisors;
appropriate behavior;
(13)

(8)

(12)

(11) maintain socially

adhere to basic standards of neatness;

respond appropriately to workplace changes;

hazards and take appropriate precautions;
iar places or use public transportation;

(15)
(16)

and (17) make plans independently (Tr. 596).

(14) be aware of

travel to unfamilset realistic goals
Dr. Mohammad also

noted that plaintiff had moderate-to-marked limitations with
respect to her ability to remember locations and work-like

17

procedures and understand, remember and carry out simple, one-totwo step instructions (Tr. 596) .
Dr. Mohammad opined that plaintiff would be absent from
work more than three times per month and that her symptoms and
limitations dated as far back as June 1, 2013

(Tr. 597).

On September 12, 2015, plaintiff resumed treatment with
Dr. Mohammad after she reported that she had been sick all summer
(Tr. 632).

Plaintiff's mental status examination was similar to

her prior examinations

(Tr. 632).

Dr. Mohammad's diagnosis

remained the same, and he directed plaintiff to follow up in one
month (Tr. 633-34)
On October 8, 2015, plaintiff complained to Dr.
Mohammad of stress because her father was suffering from terminal
lung cancer (Tr. 635).

Plaintiff's mental status examination was

similar to her prior examinations (Tr. 635).

Again, Dr.

Mohammad's diagnosis remained the same, and he directed plaintiff
to follow up in one month (Tr. 636).
On November 5, 2015, plaintiff reported that her father
was staying with her and that her daughter's behavior had improved (Tr. 638).

Plaintiff's mental status examination was

similar to her prior examinations

(Tr. 638).

Dr. Mohammad's

diagnosis remained the same, and he directed plaintiff to follow
up in one month (Tr. 639).
18

2.

Medical Records Concerning
Plaintiff's Physical Issues

a.

Dr. Marilee Mescon

Dr. Marilee Mescon, a consulting internist, examined
plaintiff on July 2, 2013

(Tr. 348-51).

Plaintiff complained of

having generalized joint and muscle pain for the preceding two or
three years

(Tr. 348).

Plaintiff reported experiencing sharp,

aching and burning pain, which she rated at 10 out of 10, but
that it eased to a 5 out of 10 with pain medication (Tr. 348).
At the time of the examination, plaintiff was taking Depakote,

16

Cymbalta, prazosin and Xanax (Tr. 348).
Plaintiff reported that she was able to shower, bathe,
dress, cook, clean, do her laundry and shop (Tr.

348).

She spent

her free time watching television, listening to the radio,
reading and doing crossword puzzles

(Tr. 348-49).

Upon examination, plaintiff appeared to be in no acute
distress

(Tr. 349).

She was able to sit, stand and walk normally

and without assistance, and she did not require help changing her
clothes or getting on and off the exam table

(Tr. 349).

She

exhibited a full range of motion in her musculoskeletal system,

Depakote is a brand name for valproic acid.
Valproic
Acid, supra, MedlinePlus, https://medlineplus.gov/druginfo/meds/
a682412.html (last visited Feb. 14, 2019).
16

19

with no tenderness, redness, heat, swelling or effusion 17 (Tr.
350) .

Dr. Mescon rated plaintiff's strength in her upper and

lower extremities at a 5 out of 5 and her grip strength in both
hands at a 5 out of 5 (Tr. 350).
In her medical source statement, Dr. Mescon wrote that
plaintiff had "no limitations in [her] ability to sit, stand,
climb, push, pull, or carry heavy objects at this time"

(Tr.

350) .

b.

Montefiore Medical Center

On February 27, 2014, Dr. Irene Blanco, a
rheumatologist at Montefiore Medical Center, treated plaintiff
for her joint pain (Tr. 533-38) .

Plaintiff reported that she had

been suffering from the symptoms of fibromyalgia for more than a
year-and-a-half, and that the pain in her left arm and shoulder
had worsened (Tr. 533).

Plaintiff experienced pain and swelling

in her hands, with a burning sensation in her arm and numbness in
her fingertips

(Tr. 533).

Neither Cymbalta nor over-the-counter

pain medication eased the pain (Tr. 533).
Plaintiff complained to Dr. Blanco of chest pains,
anxiety and depression, but she denied all other symptoms or

Effusion refers to "the escape of fluid into a part or
tissue." Dorland's at 595.
17

20

abnormalities except as noted above

(Tr. 535).

She appeared to

be in no acute distress, but Dr. Blanco assessed sensitivity at
14 out of 18 tender points 13

(Tr. 536).

On March 27, 2014, plaintiff returned to Dr. Blanco
with continuous, diffuse body pain (Tr. 528).

Plaintiff again

appeared in no acute distress, but Dr. Blanco again assessed
sensitivity at 14 out of 18 tender points

(Tr. 530).

On May 22, 2014, plaintiff complained that her
fibromyalgia was "not doing well," that she had pain in her hands
and that she felt weak (Tr. 523).
complaints, however,

Despite plaintiff's subjective

Dr. Blanco observed no acute distress and

assessed sensitivity at only 4 out of 18 tender points

(Tr. 525)

On December 8, 2014, Dr. John Culmine, plaintiff's
primary care physician, conducted plaintiff's annual physical
examination (Tr. 516-22).

Dr. Culmine noted plaintiff's history

of psychiatric problems and fibromyalgia

(Tr.

516-17).

He noted

that although plaintiff did not exhibit any signs or symptoms of

18

The American College of Rheumatology has specified two
primary criteria that characterize fibromyalgia:
(1) three or
more months of widespread pain in the body and (2) pain at a
minimum of 11 out of 18 specified locations throughout the body,
called tender points.
A doctor assesses sensitivity at each
tender point by pressing on the tender point with his or her
thumb.
See David Sinclair, MD, et al., The Manual Tender Point
Survey, National Fibromyalgia Association (Oct. 3, 2005),
http://www.fmaware.org/articles/the-manual-tender-point-survey/
(last visited Mar. 4, 2019).
21

depression, she complained of depression and occasional headaches
(Tr. 518).

Plaintiff exhibited no other abnormalities, and Dr.

Culmine referred her back to her treating specialists

(Tr. 518-

19) .
On February 6, 2015, plaintiff complained to Dr. Blanco
that she continued to experience back pain and that her fingers
felt sprained and swollen and that her grip was affected (Tr.
511) .

Dr. Blanco assessed sensitivity at 18 out of 18 tender

points and noted that plaintiff's hands looked puffy (Tr. 513)
However, Dr. Blanco indicated that plaintiff's grip strength and
sensation were normal

(Tr. 513).

On July 9, 2015, plaintiff complained of pain in her
scalp, shoulder and neck (Tr. 506).

Dr. Blanco again assessed

sensitivity at 18 out of 18 tender points, with diffuse pain and
stiffness

(Tr. 509).

In addition to plaintiff's prescribed

medication, Dr. Blanco referred plaintiff for physical therapy
(Tr. 578)
On July 10, 2015, Dr. Blanco completed a fibromyalgia
questionnaire concerning plaintiff (Tr. 621-25).

She found that

plaintiff met the American College of Rheumatology's criteria for
fibromyalgia and that no diagnoses other than fibromyalgia better
explained plaintiff's symptoms and limitations

(Tr.

621).

Plaintiff had widespread pain or a history of widespread pain in
22

all quadrants of the body that persisted for at least three
months and had at least 11 positive tender points upon physical
exam or digital palpation in her neck, chest, arms, hips, back
and knees

(Tr. 622).

Dr. Blanco noted that plaintiff's pain

fluctuated in intensity and was not always present, but that
plaintiff experienced chronic widespread pain in her neck, chest,
abdomen, upper and lower back,
legs

(Tr. 622) .

jaw, shoulders, arms, hips and

In addition to plaintiff's physical pain, Dr.

Blanco indicated that plaintiff suffered from difficulty thinking, depression, fatigue or tiredness, insomnia and headache (Tr.
622) .
Dr. Blanco assessed that plaintiff could sit for only
two hours out of an eight-hour work day, that she could stand for
less than one hour and that she had to move around every two-tothree hours, returning to a sitting position after 10-20 minutes
(Tr. 623).

Plaintiff could only occasionally lift or carry

objects weighing up to ten pounds, but she could grasp, turn and
twist objects, use her hands or fingers for fine manipulations
and use her arms for reaching (Tr. 623).

Dr. Blanco opined that

plaintiff's symptoms would worsen with the stress of a competitive work environment

She assessed that plaintiff's

(Tr. 625).

symptoms would interfere with her concentration and attention for
up to one-third of an eight-hour work day, and that plaintiff
23

would require unscheduled breaks at unpredictable intervals once
or twice per day (Tr. 625).

However, she estimated that plain-

tiff would be absent from work less than once per month (Tr.
625) .

Finally, Dr. Blanco opined that plaintiff's impairments

would last at least 12 months and that plaintiff was not a
malingerer (Tr. 621).

She also noted that plaintiff's anxiety

and depression exacerbated plaintiff's fibromyalgia symptoms

(Tr.

621) .
On July 20, 2015, Dr. Culmine completed a disability
impairment questionnaire for plaintiff (Tr. 626-30).

He indi-

cated that plaintiff had been diagnosed with fibromyalgia and
bipolar disorder (Tr.

62 6) .

He opined that plaintiff's impair-

ments would last at least 12 months and that plaintiff was not a
malingerer (Tr. 626).

Dr. Culmine identified plaintiff's primary

symptom as diffuse, daily pain, but he was unable to assess the
effect of plaintiff's impairments on her ability to perform workHe estimated that plaintiff

related activities (Tr. 627-29).

would miss work two to three times per month and that her symptoms dated back to June 1, 2013

c.

(Tr. 630).

Dr. Douglas Greenfield

Dr. Douglas Greenfield, a consulting internist and
cardiologist, examined plaintiff on January 25, 2016 (Tr. 70024

03) .

Plaintiff complained of suffering from fibromyalgia for

several years preceding the examination, as well as depression,
bipolar disorder, anxiety, panic attacks and posttraumatic stress
disorder (Tr. 700).

Plaintiff reported extreme sensitivity to

touch, difficulty holding and lifting objects and poor sleep and
memory (Tr. 700).

At the time of the examination, plaintiff was

taking venlafaxine, alprazolam and bupropion (Tr. 700).
Plaintiff reported that she was able to shower and
dress, but that "she [did] not do the cooking, cleaning, laundry
. staying with her"

and shopping as her parents [were]
701) .

(Tr.

She spent her free time watching television, listening to

the radio and socializing (Tr. 701).
Upon examination, plaintiff appeared to be in no acute
distress

(Tr. 701).

She was able to sit, stand and walk nor-

mally, and she did not require help changing her clothes or
getting on and off the exam table

(Tr.

701).

She exhibited a

full range of motion in her musculoskeletal system, with no
redness, heat, swelling or effusion (Tr. 702).

Dr. Greenfield

assessed sensitivity at five out of 18 tender points

(Tr. 702).

He rated plaintiff's strength in her upper and lower extremities
at a 5 out of 5 and her grip strength in both hands at a 5 out of
5

(Tr. 702).

25

In his medical source statement, Dr. Greenfield wrote
that plaintiff had no limitations

D.

(Tr. 703).

Proceedings Before the ALJ

Plaintiff first appeared before the ALJ on July 21,
2015

(Tr. 704-32).

November 24, 2015

1.

The hearing was continued to and concluded on
(Tr. 44-102).

Plaintiff's Testimony

Plaintiff testified that she last worked in 2011 as a
bartender and an assistant in a hair salon (Tr. 708-10).
earned $35 plus tips for each bartending shift

She

(Tr. 710).

Plaintiff was unable to state with certainty how much she earned
per night or per month (Tr. 710-13).

When the ALJ asked plain-

tiff why her doctor's notes from December 8, 2014 indicated that
she worked as a hairdresser, plaintiff testified that she had not
worked since filing her disability application on March 22, 2013
(Tr. 718-21).
Plaintiff testified that at the time of the hearing,
she was taking several medications, including Xanax for anxiety,
two different anti-depressants and steroids

(Tr. 715-17).

She

had recently stopped taking Gabapentin for her fibromyalgia and
stated that although her doctor had prescribed Lyrica in substi26

tution for Gabapentin, she had not yet filled the prescription
(Tr. 717).

She believed her medications caused her to have

memory problems (Tr. 718).
Plaintiff testified that Dr. Culmine, her primary care
doctor, had prescribed psychiatric medication during gaps in her
psychiatric treatment

(Tr. 723-25).

She also testified that she

had been hospitalized for depression in 2005

(Tr. 726).

Plaintiff testified that she did not really read but
that she did watch television (Tr. 727).

She stated that she

formerly did crossword puzzles but no longer did them (Tr. 72728) .
Plaintiff stated that she had gained 20 pounds or more
in a year (Tr. 728-29).

She also stated that she experienced

anxiety in dealing with crowded places, specifically supermarkets, trains and elevators

(Tr. 729)

suffered from daily anxiety attacks

She testified that she
(Tr. 729-30).

When the hearing resumed on November 24, 2015, plaintiff testified that she had been very sick over the summer and
had been hospitalized for legionnaires' disease,

19

19

shingles 20 and

Legionnaires' disease is "an acute, sometimes fatal,
bacterial disease caused by infection with Leqionella
pneumophila, not spread by person-to-person contact; it is
characterized by pneumonia, high fever, gastrointestinal pain,
headache, and sometimes involvement of the kidneys, liver, or
(continued ... )
27

an unspecified stomach ailment

(Tr. 45-46).

She testified that

she had resumed treatment with Dr. Mohammad and Dr. Blanco (Tr.
48-49).

She complained of side effects from her medications, but

was unable to remember clearly if or when she had discontinued
their use and changed medications

(Tr. 50-52).

She did state

that she continued to take medication for depression and anxiety,
but that she had not yet found a satisfactory medication for her
fibromyalgia

(Tr. 54).

Plaintiff testified that she was in

constant pain and that her inability to treat the pain or to
contact her doctors exacerbated her anxiety (Tr.

63-64).

She testified that some days she was unable to walk or
move her feet because of the pain (Tr. 67-68).

On days when her

pain was less severe, she would be able to walk a short distance,
but then she would have to sit down and rest

19

(Tr. 71-73).

She

continued)
nervous system." Dorland's at 537.
20

( •••

shingles is another name for herpes zoster,
an acute, infectious, usually self-limited disease .
[that] is characterized by severe neuralgic pain
along the distribution of the affected nerve with crops
of clustered vesicles over the area of the
corresponding dermatome; it is usually unilateral and
confined to one dermatome or adjacent ones.
Postherpetic neuralgia may be a complication.
In
immunocompromised patients it may disseminate and be
fatal.

Dorland's at 852, 1703.
28

could not carry heavy or bulky objects, and her hands would cramp
up, affecting her grip and her handwriting (Tr. 74-78).
With respect to her psychiatric symptoms, plaintiff
testified that she suffered from crying spells, panic attacks,
persistent anxiety and depression (Tr. 78-81).

She stated that

she was unable to concentrate and had to make lists for even
basic tasks

(Tr. 82).

Finally, plaintiff testified that she was able to shop
for groceries, clean and do laundry, but only with the assistance
of her boyfriend or her daughter (Tr. 92-94).

She watched

television, but she was unable to read or do crossword puzzles
because of her inability to concentrate (Tr. 94-95).

2.

Vocational Expert Testimony

Vocational expert Esperanza Distefano ("VE Distefano")
testified at the July 21, 2015 hearing (Tr. 713-715).

VE

Distefano characterized plaintiff's past work as a waitress,
which is defined in the United States Department of Labor's
Dictionary of Occupational Titles

("DOT") as DOT Code 311.477-

030, which is light-exertion, semi-skilled work (Tr. 713-14).
She also identified plaintiff's work as a bartender as DOT Code
312.474-010, which is light-exertion, semi-skilled work (Tr.
714).

At the request of plaintiff's counsel and the ALJ, she
29

also identified plaintiff's past work as a hairdresser as DOT
Code 332.271-018, which is light-exertion, skilled work (Tr. 71415) .
Vocational expert Dr. Yaakov Taitz 21

("VE Taitz")

testified at the November 24, 2015 hearing (Tr. 96-100).

The ALJ

asked VE Taitz to consider possible jobs for a hypothetical
person of plaintiff's age, education and experience, with the
ability to meet the exertional demands of sedentary work,

22

who

needed to shift from sitting to standing every 45 minutes, could
climb ramps and stairs, stoop,

kneel, crouch and crawl only

occasionally and could not perform assembly line work (Tr.
97) .

96-

VE Taitz testified that such a hypothetical individual

could not perform any of plaintiff's past work because all of
plaintiff's past work required light exertion (Tr.

97).

21

The hearing transcript from November 24, 2015 refers to
the vocational expert as "Dr. Tates" (Tr. 95-100) but the resume
contained in the record spells the witness's name "Taitz" (Tr.
307-08).
"Sedentary work involves lifting no more than 10 pounds at
a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools.
Although a sedentary job is
defined as one which involves sitting, a certain amount of
walking and standing is often necessary .
" 20 C.F.R.
C. F.R. § 416. 967 (a).
22

30

VE Taitz testified that such an individual could,
however, work as an addresser,

23

DOT Code 209.587-010, with

300,000 jobs nationally, a document preparer,

DOT Code 249.587-

018, with 160,000 jobs nationally, and a surveillance system
monitor, DOT Code 379.367-010, with 80,000 jobs nationally (Tr.
57).

When the ALJ asked VE Taitz to limit the hypothetical

individual to an individual who could only occasionally handle
things with her dominant hand, he opined that such an individual
would not be able to work as a document preparer (Tr. 97-98).

VE

Taitz testified that such an individual could, however, work as a
telephone solicitor, DOT Code 299.357-014, with 250,000 jobs
nationally, and an order clerk,

DOT Code 209.567-014, with 70,000

jobs nationally (Tr. 98).
In response to questioning by plaintiff's counsel and
the ALJ, VE Taitz testified that a hypothetical individual who is
limited to simple routine or repetitive tasks would not be able
to maintain employment if she had more than one unscheduled
absence per month (Tr.

99).

23

According to the hearing transcript, VE Taitz did not
provide a job title for DOT Code 209.587-010.
DOT Code 209.587010 refers to an "addresser."
31

III.

Analysis

A.

Applicable Legal
Principles

1.

Standard of Review

The Court may set aside the final decision of the
Commissioner only if it is not supported by substantial evidence
or if it is based upon an erroneous legal standard.

42

u.s.c.

§

405(g); Lockwood v. Comm'r of Soc. Sec. Admin., --- F.3d --- ,
2019 WL 366695 at *3
708 F.3d 409,
Astrue,

417

(2d Cir. Jan. 23, 2019); Selian v. Astrue,

(2d Cir. 2014)

( ~ curiam); Talavera v.

697 F.3d 145, 151 (2d Cir. 2012); Burgess v. Astrue,

F.3d 117, 127

(2d Cir. 2008).

437

Moreover, the court cannot "affirm

an administrative action on grounds different from those considered by the agency."

Lesterhuis v. Colvin, 805 F.3d 83, 86 (2d

Cir. 2015), quoting Burgess v. Astrue, supra, 537 F.3d at 128.
The Court first reviews the Commissioner's decision for
compliance with the correct

legal

standards;

only then does

it

determine whether the Commissioner's conclusions were supported by
substantial evidence.

Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.

2003), citing Tejada v. Apfel,

167 F.3d 770,

773

(2d Cir.

1999).

"Even if the Commissioner's decision is supported by substantial
evidence,

legal error alone can be enough to overturn the ALJ' s
32

decision."
2009)

Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y.

(Marrero, D. J.).

However, "where application of the correct

legal principles to the record could lead to only one conclusion,
there is no need to require agency reconsideration."
Bowen, 817 F. 2d 983,

Johnson v.

986 (2d Cir. 1987).

"'Substantial evidence' is 'more than a mere scintilla.
It means such evidence as a reasonable mind might accept as
adequate to support a conclusion.'"

Talavera v. Astrue, supra,

697 F.3d at 151, quoting Richardson v. Perales, 402 U.S. 389, 401
( 1971) .

Consequently, "[e]ven where the administrative record

may also adequately support contrary findings on particular
issues, the ALJ's factual findings 'must be given conclusive
effect' so long as they are supported by substantial evidence."
Genier v. Astrue,

606 F.3d 46, 49 (2d Cir. 2010)

quoting Schauer v. Schweiker, 675 F.2d 55, 57

(per curiam),

(2d Cir. 1982)

Thus, "[i]n determining whether the agency's findings were
supported by substantial evidence,

'the reviewing court is

required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be
drawn.'"

Selian v. Astrue, supra, 708 F.3d at 417

omitted).

33

(citation

2.

Determination
of Disability

A claimant is entitled to SSI if the claimant can
establish an "inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment .

. which has lasted or can be expected to

last for a continuous period of not less than twelve months. " 24
42 U.S.C.

§

212, 217-22

423 (d) (1) (A); see also Barnhart v. Walton,
(2002)

535 U.S.

(both the impairment and the inability to work

must last twelve months).

The impairment must be demonstrated by

"medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C.

§

423(d) (3), and it must be "of such severity"

that the claimant cannot perform her previous work and "cannot,
considering [her] age, education and work experience, engage in
any other kind of substantial gainful work which exists in the
national economy."

42 U.S.C.

§

423(d)(2)(A).

Whether such work

is actually available in the area where the claimant resides is
immaterial.

42 U.S.C.

§

423 (d) (2) (A).

24

The standards that must be met to receive SSI benefits
under Title XVI of the Act are the same as the standards that
must be met in order to receive disability insurance benefits
under Title II of the Act.
Barnhart v. Thomas, 540 U.S. 20, 24
(2003).
Accordingly, cases addressing the former are equally
applicable to cases involving the latter.
34

In making the disability determination, the Commissioner must consider:

"(1)

the objective medical facts;

diagnoses or medical opinions based on such facts;

(3)

(2)

subjective

evidence of pain or disability testified to by the claimant or
others; and

(4)

the claimant's educational background, age, and

work experience."

Brown v. Apfel,

1999), quoting Mongeur v. Heckler,
1983)

174 F.3d 59,

62

(2d Cir.

722 F.2d 1033, 1037

(2d Cir.

(internal quotation marks omitted).
In determining whether an individual is disabled, the

Commissioner must follow the five-step process required by the
regulations.
Astrue,

supra,

F.3d at 151.

20 C.F.R.

§

416.920(a) (4) (i)-(v); see Selian v.

708 F.3d at 417-18; Talavera v. Astrue,

supra,

697

The first step is a determination of whether the

claimant is engaged in substantial gainful activity.
416. 920 (a) (4) (i).

20 C.F.R. §

If she is not, the second step requires

determining whether the claimant has a "severe medically determinable physical or mental impairment."
416. 920 (a) (4) (ii).

If she does,

20 C.F.R. §

the inquiry at the third step is

whether any of these impairments meet one of the listings in
Appendix 1 of the regulations.

20 C.F.R.

§

416.920(a) (4) (iii)

If the claimant does not meet any of the listings in
Appendix 1, step four requires an assessment of the claimant's
residual functional capacity ("RFC")
35

and whether the claimant can

still perform her past relevant work given her RFC.
416.920(a) (4) (iv); see Barnhart v. Thomas,
25.

If she cannot,

whether,

540 U.S. at 24-

then the fifth step requires assessment of

given the claimant's RFC,

other work.

supra,

20 C.F.R. §

20 C.F.R.

she can make an adjustment to

416.920(a) (4) (iv).

§

will be found disabled.

20 C.F.R.

§

If she cannot,

she

416.920(a) (4) (v).

RFC is defined in the applicable regulations as "the
most

[the claimant]

20 C.F.R.
f[ies]

§

416.945(a) (1).

To determine RFC,

limitations."
the ALJ "identi-

his or her work-related abilities on a function-

by-function basis,

including the functions in paragraphs

of [20 C.F.R. § 416.945] ."

172, 176 (2d Cir.
Ruling

[her]

the individual's functional limitations or restrictions

and assess[es]

and (d)

can still do despite

("SSR")

2013)

96-8p,

Cichocki v. Astrue,

(b), (c),
729 F.3d

(12.IT curiam), quoting Social Security

1996 WL 374184 at *l

(July 2, 1996).

The

results of this assessment determine the claimant's ability to
perform the exertional demands of sustained work which may be
categorized as sedentary,

light, medium, heavy or very heavy.

20 C.F.R. § 416.967; see Schaal v. Apfel,
(2d Cir. 1998).

134 F.3d 496,

25

501 n.6

This ability may then be found to be limited

25

Exertional limitations are those which "affect [plaintiff's] ability to meet the strength demands of jobs (sitting,
standing, walking, lifting, carrying, pushing, and pulling)."
C.F.R. § 416.969a(b).
36

20

further by nonexertional factors that restrict a claimant's
ability to work.
n.4

26

(2d Cir. 2015)

402,

410

See Michaels v. Colvin,

621 F. App'x 35, 38

(summary order); Zabala v. Astrue, 595 F.3d

(2d Cir. 2010).
The claimant bears the initial burden of proving

disability with respect to the first four steps.

Once the

claimant has satisfied this burden, the burden shifts to the
Commissioner to prove the final step -- that the claimant's RFC
allows the claimant to perform some work other than her past
Selian v. Astrue, supra, 708 F.3d at 418; Burgess v.

work.

Astrue, supra, 537 F.3d at 128; Butts v. Barnhart, 388 F.3d 377,
383 (2d Cir. 2004), amended in part on other grounds on reh'g,
416 F.3d 101 (2d Cir. 2005).
When the ALJ finds that the nonexertional limitations
significantly diminish a claimant's ability to work, then the
Commissioner must introduce the testimony of a vocational expert
or other similar evidence in order to prove "that jobs exist in
the economy which the claimant can obtain and perform."

26

Butts v.

Nonexertional limitations are those which "affect only
[plaintiff's] ability to meet the demands of jobs other than the
strength demands," including difficulty functioning because of
nervousness, anxiety or depression, maintaining attention or
concentration, understanding or remembering detailed instructions, seeing or hearing, tolerating dust or fumes, or manipulative or postural functions, such as reaching, handling, stooping,
climbing, crawling or crouching.
20 C.F.R. § 416.969a(c).
37

Barnhart, supra, 388 F.3d at 383-84

(internal quotation marks and

citation omitted); see also Heckler v. Campbell, 461 U.S. 458,
462 n. 5 (1983)

("If an individual's capabilities are not de-

scribed accurately by a rule, the regulations make clear that the
individual's particular limitations must be considered.").

An

ALJ may rely on a vocational expert's testimony in response to a
hypothetical if there is "substantial record evidence to support
the assumption[s] upon which the vocational expert based his
opinion."

Dumas v. Schweiker, 712 F.2d 1545, 1554

1983); accord Snyder v. Colvin,
2016)

(summary order)

667 F. App'x

(2d Cir.

319, 321 (2d Cir.

("When the hypothetical posed to the

vocational expert is based on a residual functional capacity
finding that is supported by substantial evidence, the hypothetical is proper and the ALJ is entitled to rely on the vocational
expert's testimony."); Rivera v. Colvin, 11 Civ. 7469 (LTS) (OF),
2014 WL 3732317 at *40 (S.D.N.Y. July 28, 2014)

(Swain, D.J.)

("Provided that the characteristics described in the hypothetical
question accurately reflect the limitations and capabilities of
the claimant and are based on substantial evidence in the record,
the ALJ may then rely on the vocational expert's testimony
regarding jobs that could be performed by a person with those
characteristics.") .

38

B.

The ALJ's Decision

The ALJ applied the five-step analysis described above
and determined that plaintiff was not disabled (Tr. 19-41).
At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity since the application
date of May 16, 2013

(Tr. 24).

He noted that although plaintiff

worked after that date, her work "did not rise to the level of
substantial gainful activity"

(Tr. 24).

At step two, the ALJ found that plaintiff suffered from
the following severe impairments:
disorder, anxiety and depression"

"fibromyalgia, obesity, a mood
(Tr. 24).

At step three, the ALJ found that plaintiff's mental
impairment did not meet the criteria of listing 12.04, 20 CFR,
Part 404, Subpart P, Appendix 1 (Tr. 25).

In reaching his

conclusion, the ALJ stated that he considered whether the paragraph B criteria were satisfied and concluded that, because
plaintiff's mental impairment did not cause at least two marked
limitations or one marked limitation and repeated episodes of
decompensation, the paragraph B criteria were not satisfied (Tr.
25) .

Specifically, the ALJ found that plaintiff was mildly

restricted in the activities of daily living, moderately restricted in social functioning, moderately restricted with

39

respect to concentration, persistence or pace and that she had
not experienced any episodes of decompensation (Tr. 25).

The ALJ

also stated that he considered whether the paragraph C criteria
were satisfied and concluded that they were not, without further
elaboration (Tr. 25).
The ALJ then determined that plaintiff retained the RFC
to perform sedentary work, with the limitations that she needed
to alternate positions as frequently as every 45 minutes and
could climb ramps and stairs, stoop,
occasionally (Tr. 26).

kneel, crouch and crawl only

Plaintiff could use her hands for fine

manipulation frequently, but she could not work on an assembly
line and was limited to unskilled work -- repetitive, routine and
simple tasks

(Tr. 26).

Finally, plaintiff could only have

occasional contact with the public (Tr. 26).

To reach his RFC

determination, the ALJ examined the opinions of the treating and
consulting physicians and determined the weight to be given to
each opinion based on the objective medical record, including the
treatment notes of plaintiff's treating physicians

(Tr. 26-33)

The ALJ also considered plaintiff's testimony and found that
while plaintiff's medically determinable impairments could
reasonably have caused her alleged symptoms, a review of the
entire case record showed that plaintiff's statements regarding

40

their intensity, persistence and limiting effects were not
entirely credible (Tr. 26).

The ALJ first addressed plaintiff's physical impairments:

fibromyalgia and obesity (Tr. 26-30).

The ALJ concluded

that plaintiff's fibromyalgia would not foreclose her ability to
work at a job that involved a narrowed range of sedentary exertion (Tr. 26).

The ALJ noted that, although plaintiff's

fibromyalgia was documented by a rheumatologist, the record
revealed few consistently significant clinical signs

(Tr. 26)

Plaintiff tested positive at 18 out of 18 tender points at only
two examinations, in February and July of 2015, which coincided
with a period of time in which she was not taking her medication
as prescribed (Tr. 26-27).

Similarly, when plaintiff tested

positive at 14 out of 18 tender points at a February 2014 examination, she was also not taking her medication as prescribed (Tr.
26-27).
The ALJ gave "significant weight" to some aspects of
the opinion of Dr. Blanco, plaintiff's treating rheumatologist
(Tr. 29).

Specifically, the ALJ credited Dr. Blanco's opinion

that plaintiff would need to alternate positions, was restricted
to lifting and carrying 10 pounds occasionally and that her
attention and concentration would occasionally be interrupted by
her pain and fatigue

(Tr. 29).

The ALJ also credited Dr.
41

Blanco's opinion that plaintiff would miss work less than once
per month over Dr. Culmine's contrary opinion that she would miss
two-to-three days per month (Tr. 29).

Finally, the ALJ gave

"significant weight" to Dr. Blanco's opinion that plaintiff could
use her hands frequently for fine manipulations, because the
treatment records consistently indicated plaintiff had intact
sensation and normal grip strength and range of motion (Tr. 29)
However, the ALJ declined to give "much weight" to Dr. Blanca's
opinion concerning plaintiff's ability to sit, stand and walk in
an eight-hour day, because he found Dr. Blanco's opinions with
respect to plaintiff's limitations to be internally inconsistent
and unsupported by any references in any of the treatment records
that plaintiff had difficulty sitting (Tr. 29).
The ALJ did not give "much weight" to the opinions of
the two consultative physical examiners, who stated that plaintiff had no physical limitations, because the record showed that
plaintiff suffered from fibromyalgia and had been acutely symptomatic at times

(Tr. 30).

With respect to plaintiff's obesity, the ALJ concluded
that it would not impose physical restrictions beyond those he
had previously identified (Tr. 30).
The ALJ then addressed plaintiff's mental impairments:
depression and anxiety (Tr. 30-33).
42

The ALJ stated, without

further elaboration and without referring to specific evidence in
the record, that plaintiff's mental impairments "could -- or not
-- be considered a component of the fibromyalgia"

(Tr. 30).

The

ALJ concluded that despite her mental impairments, plaintiff was
able to do unskilled work as long as she had only occasional
contact with the public and did not work on an assembly line (Tr.
30) .
The ALJ gave "only some weight" to Dr. Dabo's December
2013 opinion concerning plaintiff's limitations

(Tr. 31).

The

ALJ based this aspect of his decision on the absence of any
reference to either suicidal thinking or paranoia in Dr. Dabo's
treatment records and the lack of support, other than plaintiff's
anxiety, for Dr. Dabo's conclusion that plaintiff was moderately
limited in interacting appropriately with co-workers and respondThe ALJ noted that plaintiff

ing to work situations (Tr. 31).

stated that she had no difficulty getting along with family,
friends, neighbors, supervisors or others in authority but did
not like to be around too many people (Tr. 31).
The ALJ also gave "very little weight" to Dr.
Mohammad's 2015 opinion concerning plaintiff's limitations
32).

(Tr.

The ALJ based this aspect of his decision on the fact that

Dr. Mohammad's treatment records did not note any instances of
psychomotor abnormalities, motor tension, an abnormal affect,
43

appetite disturbances and poor memory -- which the ALJ characterized as "the basis for the limitations"

(Tr. 32).

The ALJ found

that plaintiff's "affect, memory, psychomotor functioning and
attention and concentration were far more frequently [normal]
than not" during her sessions with Dr. Mohammad, and, thus, he
found it "difficult, if not impossible," to reconcile the findings in Dr. Mohammad's treatment notes with his assessment in
July 2015

(Tr. 32).
Finally, although the ALJ did not assign a particular

weight to the opinion of Dr. Damari, the consultative psychologist, he concluded that her opinion that plaintiff's psychiatric
problems might significantly interfere with her ability to
function on a daily basis was applicable only to 2013, the time
when Dr. Damari evaluated plaintiff (Tr. 33).

The ALJ then

compared Dr. Damari's opinion from 2013 to Dr. Mohammad's treatment notes from 2015 and described the latter as "giv[ing] every
indication that [plaintiff] had improved"
At step four,

(Tr. 33).

the ALJ concluded that, because plaintiff

was limited to sedentary work,

she was unable to perform her past

work as a waitress, bartender or hairdresser, all of which
required light exertion (Tr. 33).
At step five,

relying on the testimony of the VE, the

ALJ found that jobs existed in significant numbers in the na44

tional economy that plaintiff could perform, given her RFC, age,
education and work experience, namely an addresser, document
preparer and surveillance system monitor (Tr. 34).

Concluding

that the expert's testimony was consistent with information in
the DOT, the ALJ determined plaintiff could perform those occupations and, accordingly, was not disabled (Tr. 34-35).

C.

Analysis of the
ALJ's Decision

Plaintiff attacks the ALJ's disability determination on
two grounds:

(1) the ALJ failed to weigh the medical opinion

evidence properly, and, therefore, the ALJ's determination of
plaintiff's RFC was incorrect and (2) the ALJ failed to evaluate
plaintiff's credibility properly (Memorandum of Law in Support of
Plaintiff's Motion for Judgment on the Pleadings, dated Feb. 16,
2018

(D. I. 13)

("Pl. Mem. ") at 12-25).

The Commissioner contends

that the ALJ's assessment of the medical evidence and plaintiff's
credibility was correct (Memorandum of Law in Opposition to
Plaintiff's Motion for Judgment on the Pleadings and in Support
of the Commissioner's Cross-Motion for Judgment on the Pleadings,
dated May 17, 2018

(D.I. 17)

("Def. Mem.") at 14-25).

After reviewing the entire record,

I find that the ALJ

afforded too little weight to the opinions of plaintiff's treat-

45

ing psychiatrists and failed to incorporate those opinions into
his RFC determination,

requiring remand for further proceedings.

I also find that the ALJ failed to develop the record sufficiently with respect to Dr. Blanco's opinion.

1.

21

Treating Physician Rule

An ALJ must afford deference to the opinions of a
claimant's treating physicians.

A treating physician's opinion

will be given controlling weight if it is "well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in .

[the]

also Shaw v. Chater,
Shalala,
Sullivan,

59 F.3d 307,
3 F.3d 563,

record."

20 C.F.R.

221 F.3d 126, 134
313 n.6
567

§

416.927(c) (2); 28 see

(2d Cir. 2000); Diaz v.

(2d Cir. 1995); Schisler v.

(2d Cir. 1993).

"[G]ood reasons" must be given for declining to afford
a treating physician's opinion controlling weight.

20 C.F.R. §

27

Because several errors by the ALJ require remand, I do not
reach the issue of whether the ALJ properly evaluated plaintiff's
credibility.
28

The SSA has adopted regulations that alter the standards
applicable to the review of medical opinion evidence with respect
to claims filed on or after March 27, 2017.
See 20 C.F.R. §
416.920c.
Because plaintiff's claim was filed before that date,
those regulations do not apply here.
46

416. 927 (c) (2); Schisler v. Sullivan, supra, 3 F. 3d at 568; Burris
v. Chater,

94 Civ. 8049 (SHS), 1996 WL 148345 at *4 n.3

Apr. 2, 1996)

(Stein, D.J.).

(S.D.N.Y.

The Second Circuit "'do[es] not

hesitate to remand when the Commissioner has not provided "good
reasons" for the weight given to a treating physician[']s opinion.'"

Morgan v. Colvin, 592 F. App'x 49, 50

(2d Cir. 2015)

(summary order), quoting Halloran v. Barnhart, 362 F.3d 28, 33
(2d Cir. 2004); accord Greek v. Colvin, 802 F.3d 370, 375 (2d
Cir. 2015).

If the ALJ provides "good reasons" for the weight

accorded to the treating physician's opinion and the ALJ's
reasoning is supported by substantial evidence, remand is unwarranted.

See Halloran v. Barnhart, supra, 362 F.3d at 32-33; see

also Atwater v. Astrue, 512 F. App'x 67, 70
(summary order); Petrie v. Astrue,
Cir. 2011)

(2d Cir. 2013)

412 F. App'x 401, 406-07

(2d

(summary order); Kennedy v. Astrue, 343 F. App'x 719,

721 (2d Cir. 2009)

(summary order).

Before an ALJ can give a treating physician's opinion
less than controlling weight, the ALJ must consider various
factors.

(1)

These factors include:

the length of the treatment

relationship and the frequency of examination,
extent of the treatment relationship,
the treating physician's opinion,

(3) the medical support for

(4) the consistency of the

opinion with the record as a whole,
47

(2) the nature and

(5) the physician's level of

specialization in the area and (6) other factors that tend to
support or contradict the opinion.

20 C.F.R.

§

416.927(c) (2)-

(6); Schisler v. Sullivan, supra, 3 F.3d at 567; Mitchell v.
Astrue, 07 Civ. 285 (JSR), 2009 WL 3096717 at *16 (S.D.N.Y. Sept.
28, 2009)

(Rakoff, D.J.); Matovic v. Chater,

1996 WL 11791 at *4

(S.D.N.Y. Jan. 12, 1996)

94 Civ. 2296 (LMM),
(McKenna, D.J.).

Although the foregoing factors guide an ALJ's assessment of a
treating physician's opinion, the ALJ need not expressly address
each factor.
2013)

Atwater v. Astrue, 512 F. App'x 67, 70

(2d Cir.

(summary order).

2.

ALJ's Duty to
Develop the Record

"It is the rule in [the Second]

[C]ircuit that 'the

ALJ, unlike a judge in a trial, must [him]self affirmatively
develop the record' in light of 'the essentially non-adversarial
nature of a benefits proceeding.'"
37

Pratts v. Chater,

94 F.3d 34,

(2d Cir. 1996), quoting Echeverria v. Sec'y of Health & Human

Servs., 785 F.2d 751, 755 (2d Cir. 1982); Perez v. Chater, supra,
77 F.3d at 47

("We have stated many times that the ALJ generally

has an affirmative obligation to develop the administrative
record

"

(internal quotation marks omitted)); Jackson v.

Colvin, 13 Civ. 5655

(AJN) (SN), 2014 WL 4695080 at *15 (S.D.N.Y.

48

Sept. 3, 2014)

(Nathan, D.J.)

("Due to the non-adversarial nature

of the social security proceedings, a full hearing requires the
ALJ to affirmatively develop the record."
and citation omitted)) . 29

(internal quotations

The ALJ's duty to develop the record

exists irrespective of whether claimant is represented by counsel.

Shaw v. Chater, supra, 221 F.2d at 131 (2d Cir. 2000);

Tejada v. Apfel, 167 F.3d 770, 774

(2d Cir. 1999); 20 C.F.R. §

416.912(d).
The ALJ is required "affirmatively to seek out additional evidence only where there are 'obvious gaps' in the
administrative record."
Cir. 2014)

Eusepi v. Colvin, 595 F. App'x 7,

9 (2d

(summary order), quoting Rosa v. Callahan, 168 F. 3d

72, 79 & n.5 (2d Cir. 1999); accord Swiantek v. Comm'r of Soc.
Sec., 588 F. App'x 82, 84

(2d Cir. 2015)

current amended regulations .

(summary order).

"[T] he

. give an ALJ more discretion to

'determine the best way to resolve the inconsistency or insufficiency' based on the facts of the case

"

Rolon v. Comm'r

of Soc. Sec., 994 F. Supp. 2d 496, SOS (S.D.N.Y. 2014)
D.J.), quoting 20 C.F.R.
(2013) .

§§

(Nathan,

404.1S20b(c) (1), 416.920b(c) (1)

However, the regulations continue to "contemplate the

29

On March 27, 2017, the ALJ's duty to develop the record
was recodified from Section 416.912(d) to Section 416.912(b)
without any substantive changes.
49

ALJ recontacting treating physicians when 'the additional information needed is directly related to that source's medical
opinion.'"

Jimenez v. Astrue, 12 Civ. 3477

4400533 at *11 (S.D.N.Y. Aug. 14, 2013)

(GWG), 2013 WL

(Gorenstein, M.J.),

quoting How We Collect and Consider Evidence of Disability,
supra, 77 Fed. Reg. at 10,652.
"[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." Calzada v. Ast[rue], 753 F. Supp.
2d 250, 269 (S.D.N.Y. 2010); see also Rosa, 168 F.3d at
79 (citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir.
1996)). The rationale behind this rule is that "a
treating physician's 'failure to include this type of
support for the findings in his report does not mean
that such support does not exist; he might not have
provided this information in the report because he did
not know that the ALJ would consider it critical to the
disposition of the case.'" Rosa, 168 F.3d at 80 (quoting Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998)).
Geronimo v. Colvin, 13 Civ. 8263 (ALC), 2015 WL 736150 at *5
(S.D.N.Y. Feb. 20, 2015)

3.

(A. Carter, D.J.).

Plaintiff's Mental Impairments

The ALJ discounted Dr. Mohammad's opinion that plaintiff had marked limitations in her ability to concentrate and
persist, marked limitations in her social abilities and would be
absent from work more than three times per month, finding that it

50

was contradicted by Dr. Mohammad's own treatment records.
Specifically, the ALJ cited the absence of any instances of
psychomotor abnormalities, motor tension, abnormal affect,
appetite disturbances or poor memory in Dr. Mohammad's treatment
records

(Tr.

32).

However,

in the mental impairment question-

naire Dr. Mohammad prepared for plaintiff, he identified depression,

fatigue,

difficulty concentrating, anhedonia,

insomnia and

anxiety as the signs and symptoms that were the most frequent or
severe (Tr.

595).

These signs and symptoms appear frequently and

fairly consistently in the treatment records.

By ignoring the

consistent appearance of plaintiff's most frequent and severe
signs and symptoms in the treatment records and by focusing on
the absence of other signs and symptoms, the ALJ overstated the
degree to which Dr. Mohammad's opinion is inconsistent with his
treatment records.

Thus, the ALJ failed to give adequate reasons

for declining to afford controlling or significant weight to Dr.
Mohammad's opinion.
Furthermore,

Dr. Mohammad's opinion with respect to

plaintiff's mental impairments is consistent with the earlier
opinions of Dr. Dabo and Dr. Damari.

In his 2013 medical source

statement, Dr. Dabo opined that plaintiff suffered mild, moderate
or marked restrictions across a spectrum of work-related mental
activities

(Tr.

354-55).

In her 2013 evaluation,
51

Dr. Damari

opined that plaintiff's psychiatric problems might "significantly
interfere with [her] ability to function on a daily basis"
34 6) .

(Tr.

Contrary to the ALJ's assessment of longitudinal improve-

ment in plaintiff's mental health,

Dr. Mohammad's well-supported

opinion suggests -- at best -- that plaintiff's mental impairments persisted well into 2015.
Finally, because the ALJ did not properly weigh the
opinions of plaintiff's treating psychiatrists, he failed to
question the VE appropriately with respect to plaintiff's mental
impairments.

Although the ALJ limited the hypothetical claimant

to unskilled work involving simple, repetitive tasks, the only
other mental limitation the ALJ asked the VE to assume related to
an acceptable number of unscheduled absences.

To the extent that

plaintiff's mental impairments would interfere with her ability
to maintain a regular work schedule or to concentrate while at
work, as the psychiatrists opined they would, the ALJ did not
sufficiently explore these limitations with the VE in calculating
plaintiff's RFC.

4.

Plaintiff's Physical Impairments

Plaintiff argues correctly that the ALJ failed to
develop the record sufficiently with respect to Dr. Blanco's
opinion concerning plaintiff's ability to sit, stand and walk in
52

an eight-hour work day (Pl. Mem. at 19-20).

The ALJ found Dr.

Blanco's opinion that plaintiff was limited to sitting for two
hours and standing and walking for less than an hour to be
inconsistent with her opinion that plaintiff would need to get up
from a seated position every two-to-three hours, move around for
10-20 minutes and then resume sitting (Tr. 29).

This inconsis-

tency is attributable to the way the questions in the
fibromyalgia questionnaire are phrased (Tr.

623).

Question 9

asks the physician, "Considering your patient's conditions,
estimate your patient's ability to perform work in a competitive
environment on a sustained and ongoing basis (8 hours per day, 5
days per week)."

(Tr. 623).

Sub-questions a and bask the

physician to circle the number of hours the patient can perform a
job in a seated position and standing and/or walking, respectively; the answer choices are "<1, 1, 2, 3, 4, 5, 6+"

(Tr. 623)

Dr. Blanco circled 2 in response to question 9a and less than 1
in response to question 9b (Tr. 623).

Question 10a asks,

"Is it

medically necessary for your patient to avoid continuous sitting
in an 8-hour workday?"

(Tr. 623).

this question (Tr. 623)

Dr. Blanco answered yes to

Question 10b asks,

"If yes, how fre-

quently must your patient get up from a seated position to move
around?"

(Tr. 623).

Dr. Blanco answered "every 2-3 h or so" to

this question (Tr. 623).

Question 10c asks,
53

"How long before

your patient can return to a seated position?"

(Tr.

623).

Dr.

Blanco answered "10-20 minutes" in response to this question
623) .

Thus,

(Tr.

Dr. Blanco's answer to question 9a, that plaintiff

could only perform a job in a seated position for two hours,
appears inconsistent with her answers to questions 10a, 10b and
10c, where she indicated that plaintiff would need to avoid
continuous sitting but could sit for two-to-three hours, move
around for 10 to 20 minutes and then return to a seated position
(Tr.

623)
However,

identifying this inconsistency in the opinion

evidence triggered the ALJ's duty to clarify whether Dr. Blanco
meant that plaintiff could only work in a seated position for a
total of two hours per day, or, as Dr. Blanco's responses to
subsequent questions suggest, that plaintiff could only work in a
seated position for two hours at a time, with breaks in between
two-hour seated stints.

The record contains no evidence that the

ALJ attempted to resolve this inconsistency in Dr. Blanco's
opinion.

Upon remand, the ALJ should contact Dr. Blanco to

clarify the meaning of her opinion.
Beyond the ALJ's failure to develop the record sufficiently, however, plaintiff's argument that the ALJ erred in his
treatment of Dr. Blanco's opinion is unpersuasive.

As the ALJ

stated, he largely credited Dr. Blanco's assessment of the
54

limitations imposed by plaintiff's fibromyalgia,

including her

estimate that plaintiff would rarely miss work (Tr. 29).

Fur-

thermore, the ALJ dismissed the opinions of the consultative
physicians, who opined that plaintiff had no physical limitations
whatsoever, and found ample support in the record for the limitations imposed by plaintiff's fibromyalgia

(Tr. 30).

As the ALJ

correctly stated, the record contains no references to any
difficulty with sitting, standing or walking.

Plaintiff's

testimony corroborates this assessment; she testified that she
was able to walk most days, albeit with some limitations.
Finally, the ALJ's hypothetical to the VE proposed more restrictive conditions

only 45 minutes of continuous seated work

before shifting positions -- than those suggested by the opinion
evidence.

The ALJ's RFC finding with respect to plaintiff's

physical impairments was, therefore, supported by substantial
evidence.
Plaintiff's claim that the ALJ erred by basing plaintiff's physical RFC on a composite of the medical opinions in the
record is unpersuasive.

The ALJ's statement that plaintiff's RFC

"'lies somewhere in between'" the opinions of Dr. Blanco and the
consultative physicians (Pl. Mem. at 21), although inelegantly
worded, does not mean that the ALJ arbitrarily picked a point on
a spectrum between these opinions.
55

As described above, the ALJ's

assessment of plaintiff's physical RFC was largely based on the
opinion of Dr. Blanco, plaintiff's treating physician, which was
well supported in the record.
In conclusion, because (1)

the ALJ erred with respect

to plaintiff's mental impairments by affording too little weight
to the opinions of plaintiff's treating psychiatrists and failing
to incorporate those opinions into his RFC determination and (2)
the ALJ failed to develop the record fully with respect to the
putative inconsistency in Dr. Blanco's opinion, remand is required.

D.

Appointments Clause
Challenge

Article II, Section 2, Clause 2 of the Constitution
provides,

in pertinent part, that only the President,

"Courts of

Law," or "Heads of Departments," can appoint "Officers" of the
United States.

Actions taken by an "Officer" of the United

States who was not appointed in accordance with the Constitution
appear to have no legal effect.
138 S. Ct.

2044,

2055

(2018).

See Lucia v. SEC, --- U.S. ---,
Relying on Lucia, plaintiff also

claims that the ALJ "was not constitutionally appointed at the
time of the decision in this case" and, therefore,

lacked the

power to decide her claim (Letter, dated Sept. 13, 2018

56

(D.I.

19)).

The Commissioner opposes plaintiff's Appointments Clause

challenge on the ground that plaintiff waived any such challenge
"by failing to raise it at any point in the administrative
process"

(Letter, dated Oct. 12, 2018

(D. I. 22)).

A plaintiff "'who makes a timely challenge to the
constitutional validity of the appointment of an officer who
adjudicates his case' is entitled to relief."
S. Ct. 2044, 2055

Lucia v. SEC, 138

(2018), quoting Ryder v. United States, 515

U.S. 177, 182-183 (1995)

(emphasis added).

In the context of

Social Security proceedings, the overwhelming majority of district courts have held that Lucia requires challenges under the
Appointments Clause to be raised during the administrative
proceedings; courts have found that a plaintiff's failure to do
so operates as a waiver.

See, ~.g., Kimberly B. v. Berryhill,

17-cv-5211 (HB), 2019 WL 652418 at *14-*15 (D. Minn. Feb. 15,
2019); Michelle Alicia S. v. Berryhill, EDCV 17-2115-JPR, 2019 WL
631913 at *3 n.6 (C.D. Cal. Feb. 14, 2019); Axley v. Comm'r, Soc.
Sec. Admin., 18-cv-1106-STA-cgc, 2019 WL 489998 at *1-*2 (W.D.
Tenn. Feb. 7, 2019); Shipman v. Berryhill, 17-cv-00309-MR, 2019
WL 281313 at *3 (W.D.N.C. Jan. 22, 2019); Dierker v. Berryhill,
18cv145-CAB(MSB), 2019 WL 246429 at *2-*4
2019)

(Report

&

(S.D. Cal. Jan. 16,

Recommendation), adopted at 2019 WL 446231 at *l

(S.D. Cal. Feb. 5, 2019); A.T. v. Berryhill, 17-4110-JWB, 2019 WL
57

184103 at *7

(D. Kan. Jan. 14, 2019); Stearns v. Berryhill, 17-

CV-2031-LTS, 2018 WL 4380984 at *6

(N.D.

Iowa Sept. 14, 2018).

Plaintiff concedes that her Appointments Clause challenge was not raised before the ALJ or the Appeals Council
(Letter, dated Sept. 13, 2018

(D.I.

19)).

Plaintiff's challenge

to the constitutionality of the ALJ's appointment is, therefore,
denied as untimely.

IV.

Conclusion

Accordingly,

for all the foregoing reasons, plaintiff's

motion for judgment on the pleadings is granted, and the Commissioner's motion for judgment on the pleadings is denied.

The

case is remanded for further proceedings pursuant to the fourth
sentence of 42 U.S.C. § 405(g).

The Clerk of the Court is

respectfully requested to mark this matter closed.

Dated:

New York, New York
March 20, 2019
SO ORDERED

HEZY~

United States Magistrate Judge

Copies transmitted to:
All Counsel

58