Soltis v. Berryhill

Filing 20

OPINION AND ORDER re: 16 MOTION for Judgment on the Pleadings filed by Nancy A. Berryhill, 13 MOTION for Judgment on the Pleadings filed by Matthew W. Soltis. Accordingly, for all the foregoing reasons, the Commissione r's motion for judgment on the pleadings is granted and plaintiff's motion is denied. The Clerk of the Court is respectfully requested to mark D.I. 13 and D.I. 16 closed, and respectfully requested to close the case. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 3/25/2019) Copies Transmitted By Chambers. (ne) Transmission to Orders and Judgments Clerk for processing.

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MATTHEW W. SOLTIS,
Plaintiff,
-against-

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18 Civ. 0490

(HBP)

OPINION
AND ORDER

NANCY A BERRYHILL,
Commissioner of Social Security
Defendant.
-----------------------------------x

PITMAN, United States Magistrate Judge:
I.

Introduction
Plaintiff Matthew W. Soltis 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 (the "Commissioner"), denying
his application for supplemental secure income ("SSI")
disability insurance benefits ("DIB").

and

All parties have con-

sented to my exercising plenary jurisdiction pursuant to 28
U.S.C.

§

636(c).

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.") 13, 16)
For the reasons set forth below, the Commissioner's motion for
judgment on the pleadings is granted, and plaintiff's motion is
denied.

l'i

-

~--- ~

II.

Facts 1

A.

Procedural Background
On May 7, 2014, plaintiff filed an application for SSI

and DIB, alleging that he became disabled on January 1, 2011 due
to autism spectrum disorder,

2

executive dysfunction,

3

epilepsy 4

'I recite only those facts relevant to my resolution of the
pending motions.
The administrative record that the Commissioner
filed pursuant to 42 U.S.C. § 405(g) (see Notice of Filing for
Administrative Record, dated Apr. 25, 2018 (D.I. 10) ("Tr.") more
fully sets out plaintiff's medical history.
2

Autism spectrum disorders refer to pervasive developmental
disorders "characterized by impairment of development in multiple
areas, including the acquisition of reciprocal social
interaction, verbal and nonverbal communication skills, and
imaginative activity and by stereotyped interests and behaviors;
included are autistic disorder, Rett syndrome, childhood
disintegrative disorder, and Asperger syndrome." Dorland's
Illustrated Medical Dictionary, at 549, 552 (32nd ed. 2012)
("Dorland' s").
3

Executive dysfunction refers to difficulties in the areas
of concentration, remembering information, time management,
organization and multitasking.
Obsessive compulsive disorder and
autism can cause executive dysfunction symptoms.
Executive
Dysfunction, Healthline, available at https://www.healthline.com/
health/executive-dysfunction (last visited Mar. 18, 2019).
4

Epilepsy is a central nervous system disorder in which
brain activity becomes abnormal, causing seizures or periods of
unusual behavior, sensations and occasional loss of awareness.
Seizure symptoms can vary widely; some individuals with epilepsy
simply stare blankly for a few seconds during a seizure, while
others repeatedly twitch their arms or legs.
Epilepsy is
commonly treated and controlled with medication.
Epilepsy, Mayo
Clinic, available at https://www.mayoclinic.org/diseasesconditions/epilepsy/symptoms-causes/syc-20359993 (last visited
Mar. 18, 2019).
2

and anxiety (Tr. 101).

After his application for benefits was

initially denied on October 7, 2014, he requested, and was
granted, a hearing before an administrative law judge ("ALJ")
(Tr. 114-29).
On September 9, 2016, plaintiff and his attorney
appeared before ALJ Robert Gonzalez for a hearing, at which
plaintiff and a vocational expert testified (Tr. 37-100).

On

January 13, 2017, the ALJ issued his decision finding that
plaintiff was not disabled (Tr. 18-30).

This decision became the

final decision of the Commissioner on December 18, 2017 when the
Appeals Council denied plaintiff's request for review (Tr. 1-6).
Plaintiff timely commenced this action on January 19, 2018
seeking review of the Commissioner's decision (Complaint, dated
Jan. 18, 2018
B.

(D. I. 1)

("Compl. ")).

Social Background
Plaintiff was born on February 13, 1992 and was 18

years old at the time he filed his application for SSI and DIB
(Tr. 186, 190)

Plaintiff started experiencing petit mal sei-

zures 5 when he was approximately four years old and was diagnosed

5

Petit mal seizures, or absence seizures, are a type of
generalized seizure that commonly occur in children and are
characterized by staring into space or subtle body movements,
such as eye blinking or lip smacking.
Epilepsy, Mayo Clinic,
available at https://www.mayoclinic.org/diseasesconditions/epilepsy/symptoms-causes/syc-20359993 (last visited
(continued ... )
3

with Asperger Syndrome ("Asperger's")

6

when he was five years old

(Tr. 386)
During high school, plaintiff worked at a local library
where his main responsibilities were helping patrons find books,
organizing and stocking (Tr. 51).

Plaintiff also held a seasonal

job as tour guide at a historical site (Tr.

52-53).

Plaintiff

testified that this job presented some difficulties for him
because he had trouble communicating with his supervisors and did
not always understand or follow his supervisor's instructions
(Tr. 77-89).
Plaintiff graduated from Mount Saint Mary College in
2015 with a Bachelor of Arts degree in history; his cumulative
grade point average was 3. 14

(Tr. 4 0,

4 5) .

Plaintiff testified

at the hearing that he lived on campus throughout his time at
Mount Saint Mary's, but that it was a difficult transitional
period for him (Tr. 41-43).

Plaintiff further testified that

Mount Saint Mary provided him with services, such as counseling
and additional time and low-distraction locations to take exams

" (. . continued)
Mar. 18, 2019).
6

Asperger's is a pervasive developmental disorder and is
often considered "high functioning autism." The main symptoms of
Asperger's include limited reciprocal social interaction,
repetitive behaviors and above average intelligence in the areas
of numbers, math, computers and music.
Asperger Syndrome,
Cleveland Clinic, available at https://my.clevelandclinic.org/
health/diseases/6436-asperger-syndrome (last visited Mar. 18,
2019) .
4

(Tr. 45-46).

During college, plaintiff was an active member of

the track and field team, was the president of the political
awareness club and helped start the poetry club (Tr. 41-42,

47-

4 8) .

In his "Function Report", dated September 1, 2014,
plaintiff described his typical day as getting up, showering,
eating, going to class, doing homework and participating in his
hobbies,

such as running, watching movies, listening to music,

collecting stamps and coins, studying history and working with
radio control airplanes

(Tr. 244, 247).

Plaintiff stated that he

was unable to obtain a driver's license or operate a motor
vehicle because of his Asperger's and epilepsy (Tr. 245).
Plaintiff further stated that he was able to dress himself, but
sometimes would wear clothes that were inappropriate for the
weather (Tr. 245).

Plaintiff reported that he had difficulties

taking his medication on time

(Tr. 246).

with cooking and preparing meals,

He reported difficulty

so he always ate his meals in

the school cafeteria and relied on his father to make his meals
when he was home from school

(Tr. 246-47).

Plaintiff also

reported difficulty with handling money and paying bills due to
his illnesses

(Tr. 247).

Plaintiff stated that he socialized

daily, but sometimes had issues being accepted by his peers
because of his Asperger's and that he had trouble finding a
girlfriend (Tr. 248).

Plaintiff claimed that he had difficulty

5

dealing with authority figures,
because of it

but that he had never lost a job

(Tr. 250).

On July 8,

2016, plaintiff starting working four days a

week at West Point Prep School as a food server

(Tr.

53-54).

Plaintiff stated that he was usually assigned tasks at that job
by a supervisor and then worked with two other food service
workers to complete the task (Tr.

55-56).

Plaintiff was still

working in that position as of the date of the hearing
54) .

53-

He testified that he enjoyed his position and was doing

well because the job provided him with structure

C.

(Tr.

(Tr.

83).

Medical Background

1.

Medical Records Pre-Dating
the Relevant Time Period

a.

Dr. Ronald I.

Jacobson

Plaintiff started seeing Dr. Ronald I.
neurologist, when he was two years old
initial assessment on September 20,

(Tr.

1994,

414)

Dr.

Jacobson,

a

During his

Jacobson opined

that plaintiff did not have autism, but exhibited anxious,
obsessive behaviors and had some features of a central language
processing disorder

(Tr.

414-15).

During plaintiff's next two appointments on December
13, 1994 and February 13, 1995, plaintiff continued to exhibit
obsessive behaviors,

such as repetitive opening and closing of
6

doors

(Tr.

412-13).

Dr. Jacobson diagnosed plaintiff with

obsessive compulsive disorder

("OCD")

7

and a central language

processing disorder, and recommended that he start a low dose of
Prozac 8 (Tr.

412-13).

Plaintiff's obsessive behaviors improved

over the next several months with medication and therapy (Tr.
408-11).
On December S,

1996, Dr. Jacobson noted plaintiff was

developing more pervasive development disorder type features and
that he had difficulty maintaining related and appropriate speech
during conversation (Tr.

407).

Dr. Jacobson recommended slowly

increasing plaintiff's Prozac dosage and behavioral modification
therapy (Tr.

407).

On December 31, 1996, Dr. Jacobson sent

plaintiff's parents a letter addressing their concern that
plaintiff might have Asperger's

(Tr.

406).

Dr. Jacobson acknowl-

edged that it was certainly possible that plaintiff suffered from
Asperger's, but that he was still too young for a definitive
diagnosis

(Tr.

406).

7

OCD features a pattern of unreasonable thoughts and fears
that causes individuals to do repetitive behaviors, which can
interfere with daily activities and cause significant distress.
Obsessive-Compulsive Disorder (OCD), Mayo Clinic, available at
https://www.mayoclinic.org/diseases-conditions/obsessivecompulsive-disorder/symptoms-causes/syc-20354432 (last visited
Mar. 18, 2019).
8
Prozac, or fluoxetine, is an antidepressant used to treat
depression, OCD and panic disorder.
Fluoxetine, Mayo Clinic,
available at https://www.mayoclinic.org/drugssupplements/fluoxetine-oral-route/description/drg-20063952 (last
visited Mar. 18, 2019).

7

The next record from Dr. Jacobson is from an examination of plaintiff on July 6, 2000

(Tr.

404).

Plaintiff's parents

reported that plaintiff was experiencing episodes in which he
stared, turned his head and exhibited eye fluttering for
approximately three to five minutes

(Tr.

404).

Dr. Jacobson

opined that plaintiff was likely experiencing brief complex
partial seizures 9 and recommended that plaintiff undergo an
electroencephalography ("EEG")

10

(Tr.

4 04) .

Plaintiff did not visit Dr. Jacobson again until June
27, 2003

(Tr.

403).

Plaintiff's parents reported that plaintiff

had not experienced any seizures since December 2000

(Tr.

Plaintiff was taking Zarontin 1 " to control his seizures

403)

(Tr.

9

Complex partial seizures are a type of focal seizure that
commonly involve a change or loss of consciousness or awareness,
staring into space or repetitive movements, such as hand rubbing,
chewing, swallowing or walking in circles.
Epilepsy, Mayo
Clinic, available at https://www.mayoclinic.org/diseasesconditions/epilepsy/symptoms-causes/syc-20359993 (last visited
Mar. 18, 2019) .
0

EEG is the main diagnostic test used for diagnosing
epilepsy.
Electrodes, or small cup-shaped disks, are attached to
the patient's head and connected by wires to an electrical box
that records the electrical activity of the brain.
Abnormal
brain electrical activities or patterns can indicate epilepsy or
a number of other conditions.
EEG, Epilepsy Foundation,
available at https://www.epilepsy.com/learn/diagnosis/eeg (last
visited Mar. 18, 2019).
~

Zarontin, or ethosuximide, is an anticonvulsant oral
medication used to control petit mal seizures.
Ethosuximide,
Mayo Clinic, available at https://www.mayoclinic.org/drugssupplements/ethosuximide-oral-route/description/drg-20072587
(last visited Mar. 18, 2019).
11

8

4 03) .

Dr. Jacobson noted that plaintiff was exhibiting some

symptoms of Asperger's and mild social difficulties

(Tr.

403)

Plaintiff visited Dr. Jacobson again, on September 3,
2004 and remained seizure-free

(Tr.

402).

Dr. Jacobson

recommended that plaintiff continue to take Zarontin (Tr.

402).

On April 19, 2004, plaintiff's mother reported that plaintiff was
experiencing some increased staring episodes

(Tr.

Jacobson increased plaintiff's Zarontin dosage

401).

(Tr.

Dr.

401)

Plaintiff visited Dr. Jacobson again on May 3, 2005 and
reported occasional seizure episodes, migraine headaches and
increased anxiety at school

(Tr.

400)

Dr. Jacobson adjusted his

medication and recommended a new educational plan (Tr.

400).

On

November 30, 2005, plaintiff's seizure episodes and anxiety had
improved, but he reported some incidents of over-focusing on
tasks

(Tr. 399).
Plaintiff did not visit Dr. Jacobson again until May 4,

2007

(Tr. 397).

Plaintiff's mother reported one brief seizure

episode, but that plaintiff had otherwise remained seizure-free
(Tr. 397).

Plaintiff reported doing extremely well academically,

and his physical and neurological examinations were normal

(Tr.

397) .
Plaintiff visited Dr. Jacobson again on January 8, 2008
and reported that he had experienced approximately two seizures
since his last appointment

(Tr. 396).

9

Plaintiff's parents

observed one of these seizures and stated that they observed
plaintiff staring for approximately four seconds followed by some
rapid eye movements

(Tr.

396).

Plaintiff reported that he was

experiencing some hiccups as a side effect of his Zarontin
396) .

(Tr.

Plaintiff further reported that he was doing very well

academically (Tr.
zarontin dosage

396).

(Tr.

Dr.

Jacobson slightly increased his

396).

Plaintiff visited Dr.

Jacobson again on August 12,

2008

and his parents reported that he was seizure-free since his last
visit, but that his Asperger's symptoms had significantly increased

(Tr.

394).

Plaintiff exhibited over-logical thinking and

a lack of independence

(Tr.

394).

Plaintiff visited Dr.

Jacobson again on April 29,

2009

and reported that he was experiencing a few minor breakthrough
seizures since his last visit
his Zarontin dosage

(Tr.

393).

(Tr.

393).

Dr.

Jacobson increased

Plaintiff reported that he

remained seizure-free for a year at his next appointment on April
6,

2010

(Tr.

2.

392).

Medical Records During
the Relevant Time Period

a.

St. Luke's Cornwall Hospital

Plaintiff had a seizure on July 4,

2011 after he

completed a foot race and was taken by ambulance to St. Luke's

10

Cornwall Hospital

("St. Luke's")

(Tr. 376).

for treatment

Plaintiff was disoriented when the paramedics arrived, but was
alert and oriented when he arrived at St. Luke's

(Tr. 376, 379)

Plaintiff's physical and neurological examinations were normal
(Tr. 379-80).

Dr. Alan Madell consulted with Dr. Jacobson who

recommended that plaintiff's Zarontin dosage be increased (Tr.
381) .

Plaintiff was not admitted to St. Luke's

(Tr. 381).

Plaintiff was seen again by Dr. Madell in the St.
Luke's emergency department after plaintiff suffered a seizure on
September 29, 2011 which caused him to fall down and suffer some
facial abrasions

(Tr. 349-50).

Plaintiff reported that he had

forgotten to take his Zarontin that morning and experienced the
seizure while he was running on the treadmill that night
351) .

(Tr.

Plaintiff was alert and able to communicate upon his

arrival at St. Luke's, and his physical and neurological examinations were normal

(Tr. 352-53).

Dr. Madell instructed plaintiff

to continue taking Zzarontin (Tr. 250).
admitted to St. Luke's

Plaintiff was not

(Tr. 250).

Plaintiff went to the emergency department at St.
Luke's after he had a seizure on May 17, 2014

(Tr. 447).

Plain-

tiff was lethargic, but coherent upon his arrival at the hospital
(Tr. 447).

Plaintiff was discharged the same day and was in-

structed to follow-up with his neurologist and to continue with
his medication (Tr. 453).

11

Plaintiff visited St. Luke's emergency department on
July 17, 2014 after he again suffered a seizure while walking on
the treadmill

(Tr. 507).

Plaintiff fell on the back of his head

during the seizure and reported pain upon his arrival to the
hospital

(Tr. 507).

Plaintiff's neurological examination was

normal, except for some confusion when he first arrived (Tr.
508) .

Plaintiff's head CT was normal and he was not admitted to

St. Luke's

(Tr. 508, 513).
Plaintiff visited St. Luke's emergency department again

on February 12, 2015 after he had a seizure and fell inside a
restaurant

(Tr. 519).

Plaintiff suffered a 2.5 centimeter

laceration to his left eyelid and swelling in his forehead and
lips

(Tr. 519).

Plaintiff reported pain to his head while being

treated in the emergency department

(Tr. 519).

Plaintiff further

reported that he had missed several doses of Depakote 17 (Tr.
Plaintiff's head CT revealed no fractures or abnormalities

519) .

and he was discharged to his parents the same day (Tr. 524, 531,
533) .
Plaintiff visited St. Luke's emergency department again
on January 7, 2016 after he had a seizure while riding in a car
with his mother (Tr.

614).

Plaintiff was alert and awake upon

Depakote, or valproic acid, is an anticonvulsant oral
medication that works within the brain tissue to stop seizures.
Valproic Acid, Mayo Clinic, available at
https://www.mayoclinic.org/drugs-supplements/valproic-acid-oralroute/description/drg-20072931 (last visited Mar. 18, 2019).
12

12

his arrival to the hospital and was discharged the same day (Tr.
615) .
Plaintiff visited St. Luke's emergency department again
on April 27, 2016 after he suffered a seizure

(Tr.

620).

Plain-

tiff reported that he lost consciousness during the seizure and
suffered an abrasion to his forehead when he fell

(Tr.

620).

Plaintiff further reported that he had skipped a few doses of his
Depakote and experienced a small seizure the day before
620) .

Plaintiff's head CT was normal

(Tr.

623-25).

(Tr.

Plaintiff

was discharged the same day and instructed to follow-up with his
neurologist

(Tr.
b.

621-22).
Dr. Ronald I. Jacobson

Plaintiff visited Dr. Jacobson for a follow-up
appointment on August 2, 2011

(Tr. 391).

Dr. Jacobson was aware

of the major seizure that plaintiff suffered on July 4, 2011 and
discussed the importance of plaintiff complying with his
medication regimen (Tr. 391).

Plaintiff reported that he was

doing well and was enjoying college at Mount Saint Mary (Tr.
391) .
Plaintiff visited Dr. Jacobson again on June 18, 2012
(Tr. 390).

Dr Jacobson was aware of the seizure that plaintiff

suffered on September 29, 2011, and plaintiff reported that he
recently had a generalized seizure that did not require

13

hospitalization (Tr.

390).

Plaintiff also reported increased

anxiety and difficulties at school

(Tr.

390).

Dr.

Jacobson

recommended that plaintiff start Depakote in addition to Zarontin
and recommended that plaintiff continue therapy for his anxiety
(Tr.

390).

c.

Dr. Leland G. DeEvoli

Plaintiff visited Dr. Leland G. DeEvoli, a psychiatrist, on January 16, 2012

(Tr. 386).

Plaintiff was accompanied

to the evaluation by his mother who expressed concern about
plaintiff's anxiety and obsessive thinking

(Tr.

386).

Plaintiff

reported that he was having difficulty focusing at school and was
experiencing anxiety over breaking up with his girlfriend and
being unable to find a new one

(Tr.

386).

Dr. DeEvoli noted that plaintiff was appropriately
groomed and dressed during the evaluation (Tr.

387).

Plaintiff

appeared somewhat anxious and was somewhat "literal" in describing himself, but no gross abnormalities or psychotic deficits
were noted (Tr.

387).

Plaintiff denied suicidal or homicidal

thoughts, and his thought process and judgment appeared normal
and goal-oriented (Tr. 387).

Upon completion of his evaluation,

Dr. DeEvoli noted the following diagnostic impressions:
Asperger' s,

( 2)

anxiety disorder,

14

( 3)

(1)

childhood partial complex

seizures with one grand mal seizure: 3 and (4)
girlfriend (Tr. 387).

loneliness for

Dr. DeEvoli opined that plaintiff did not

appear to be a danger to himself or others, and recommended
plaintiff start a small dose of Lexapro 14 once his neurologist
approved it

(Tr. 387).

Plaintiff visited Dr. DeEvoli again on October 28,
2013, December 3, 2013 and May 3, 2014; however,

Dr. DeEvoli's

records from these visits only consist of a few handwritten
sentences which are largely illegible (Tr. 389).
d.

Dr. Orrin Devinsky

Plaintiff visited Dr. Orrin Devinsky, a neurologist and
epilepsy specialist, on December 14, 2012

(Tr. 418).

Dr.

Devinsky reviewed plaintiff's history of seizures and noted that
he was alert and oriented during the evaluation (Tr. 419).

Dr.

Devinsky diagnosed plaintiff with epilepsy and ordered a head MRI
and a video EEG (Tr. 419).

l3Grand mal seizures, or tonic-clonic seizures, are the most
dramatic type of epileptic seizure and can cause an abrupt loss
of consciousness, body stiffening and shaking.
Epilepsy, Mayo
Clinic, available at https://www.mayoclinic.org/diseasesconditions/epilepsy/symptoms-causes/syc-20359993 (last visited
Mar. 18, 2019) .
14

Lexapro, or escitalopram, is an antidepressant used to
treat depression and generalized anxiety by increasing the
activity of serotonin in the brain.
Escitalopram, Mayo Clinic,
available at https://www.mayoclinic.org/drugssupplements/escitalopram-oral-route/description/drg-20063707
(last visited Mar. 18, 2019).
15

Plaintiff visited Dr. Devinsky again on February 11,
2013 and reported that he was feeling fatigued, but that he had
not experienced any seizures, headaches or dizziness since his
last visit

(Tr. 422).

Plaintiff was alert and oriented during

his examination (Tr. 422).

Plaintiff's speech, motor behavior,

attention, concentration and memory were normal, and he was able
to spell and multiply numbers correctly (Tr. 422).

However, Dr.

Devinsky noted that plaintiff's eye contact and judgment were
"reduced"

(Tr. 422).

Plaintiff's physical examination, neurolog-

ical examination, reflexes,
normal

(Tr . 4 2 2 - 2 3 ) .

sensations and coordination were all

Dr. Devinsky diagnosed plaintiff with

Apserger's and epilepsy, and recommended that plaintiff stop
taking Zarontin and start taking Depakote (Tr. 423).
Plaintiff visited Dr. Devinksy again on December 18,
2013 and reported that he had not experienced any seizures since
his last appointment

(Tr. 440).

Plaintiff reported that he was

doing well academically, but that he sometimes daydreamed during
class (Tr. 440).

Plaintiff was alert and oriented during his

examination (Tr. 440).

Plaintiff's speech, motor behavior,

attention, concentration, memory, mood, eye contact and judgment
were normal, and he was able to spell and multiply numbers
correctly (Tr. 440).

Plaintiff's physical examination, neurolog-

ical examination, reflexes, sensations and coordination were all
normal

( Tr . 4 4 0 - 4 1 ) .

Dr. Devinsky opined that plaintiff was

16

stable

(Tr.

441).

Plaintiff visited Dr.

Devinsky again on August 11, 2014

and reported two seizures since his last visit that he believed
were caused by sleep deprivation and missed medications
480) .

(Tr.

Plaintiff further reported that he was experiencing

anxiety

(Tr.

examination
attention,

480).

(Tr.

Plaintiff was alert and oriented during his

480).

Plaintiff's speech, motor behavior,

concentration, memory, mood,

were normal

(Tr.

were a 11 normal

Plaintiff's physical examination,

480-81).

neurological examination,

eye contact and judgment

reflexes,

sensations and coordination

(Tr . 4 8 0 - 8 1 ) .

Plaintiff visited Dr.

Devinsky again on December 15,

2014 and reported two seizures since his last visit that he

believed were caused by sleep deprivation,
and missed medications

(Tr.

543).

school-related stress

Plaintiff's EEG was normal and

did not confirm or refute his previous epilepsy diagnosis
543,

(Tr.

Plaintiff was alert and oriented during his examina-

566).

tion

544)

Plaintiff's speech, motor behavior, attention,

concentration, memory, mood,

eye contact and judgment were normal

Plaintiff's physical examination, neurological

(Tr. 544).
examination,
normal

(Tr.

reflexes,

sensations and coordination were all

(Tr. 544-45).
Plaintiff next visited Dr.

Devinsky on August 26,

and reported that he had not experienced any seizures since

17

2015

February (Tr.

603).

Plaintiff further reported that he had moved

back in with his parents since graduating from college and that
he was regularly running three to six miles per day
Plaintiff was still experiencing some anxiety (Tr.

(Tr.

603).

603).

Plain-

tiff's EEG was normal and neither confirmed nor refuted his
previous epilepsy diagnosis

(Tr.

oriented during his examination
motor behavior, attention,

605) .
(Tr.

Plaintiff was alert and

603)

Plaintiff's speech,

concentration, memory, mood, eye

contact and judgment were normal

(Tr.

603).

Plaintiff's physical

examination, neurological examination, reflexes,
coordination were all normal

(Tr.

603-04).

sensations and

Dr. Devinsky contin-

ued to diagnose plaintiff with Asperger's and epilepsy (Tr.

Plaintiff visited Dr.

604).

Devinsky again on February 17,

2016 and reported that he had experienced one seizure in January,
but otherwise had remained seizure-free since his last appointment

(Tr.

606).

Plaintiff further reported that he was still

regularly running three to six miles per day and still experiencing some anxiety (Tr.

606).

Plaintiff's EEG was again normal and

neither confirmed nor refuted his previous epilepsy diagnosis
(Tr.

608).

tion (Tr.

Plaintiff was alert and oriented during his examina606)

Plaintiff's speech, motor behavior, attention,

concentration, memory, mood, eye contact and judgment were normal
(Tr.

606).

Plaintiff's physical examination, neurological

18

examination, reflexes,
normal

(Tr.

606-07)

sensations and coordination were all
Dr. Devinsky continued to diagnose plain-

tiff with epilepsy (Tr.

607).

Dr. Devinsky filled out a medical source statement for
plaintiff on August 1 7 , 2 0 1 6 (Tr . 6 5 1 ) .

Dr. Devinsky noted that

plaintiff's last three seizures occurred on February 12, 2015,
January 7, 2016 and August 4,

2016,

and described plaintiff's

seizures as "generalized" and usually lasting approximately five
minutes

(Tr.

651).

Dr. Devinsky further noted that sleep

deprivation and stress commonly precipitated plaintiff's seizures
(Tr.

652).

Dr. Devinsky stated that plaintiff generally experi-

enced fatigue and headaches for approximately 24 hours after a
seizure

(Tr.

652) .

With respect to plaintiff's work functional capabilities,

Dr.

Devinsky opined that plaintiff would not require more

supervision because of his epilepsy and that he was capable of
performing a low-stress job, but that plaintiff was unable to
operate machinery, work at heights or operate a motor vehicle
(Tr.

653-54).

Dr. Devinsky further opined that plaintiff would

need to take a 15-minute break every four hours during an eighthour work day (Tr.

654).

Dr. Devinsky did not render any opinion

on whether or how often plaintiff would likely be absent from
work as a result of his impairments

(Tr.

654).

Dr. Devinsky wrote a letter on September 7,

19

2016 and

stated that he believed that plaintiff should "obtain disability
due to his seizure disorder and medical diagnoses"

(Tr.

Dr. Devinsky did not examine plaintiff on that date
e.

655).

(Tr.

655).

Dr. Terri L. Copans

Plaintiff visited Dr. Terri L. Copans, a psychologist,
for a neuropsychological evaluation on October 8, 2013

(Tr.

641)

Dr. Copans noted that plaintiff was alert, cooperative, oriented
and pleasant throughout the evaluation (Tr.

642-43).

Plaintiff

exhibited a stable mood and a logical and coherent thought
process

(Tr.

642-43).

Dr. Copans conducted multiple intelli-

gence, attention, language and memory tests on plaintiff on which
plaintiff scored in either the above average or average range,
except for his working memory, logical memory and verbal fluency
in which he scored within the low average range

(Tr.

643).

Plaintiff's mother completed plaintiff's adaptive and emotional
behavior assessment and based on her answers,
that plaintiff's adaptive functioning,

Dr. Copans found

such as his ability to

perform the basic maintenance activities of daily living, fell
significantly below expectation when compared to his intellectual
abilities

(Tr.

644).

Dr. Copans further found that plaintiff's

and plaintiff's mother's descriptions of his behavior placed him
within the "at risk" range with respect to his ability to adapt
readily to changes in his environment, his regard towards his

20

parents and his feelings of self-esteem, self-respect and selfacceptance (Tr.

644-45).

Dr. Copas opined that plaintiff's test results were
consistent with "high functioning autism" and that while plaintiff did not have any intellectual or language impairments, he
needed further assistance with social communication and repetitive behaviors

(Tr.

645).

She further opined that plaintiff

should avoid jobs with a high potential for social conflict, but
that he did not possess significant cognitive limitations that
would impede his ability to find work (Tr.

646).

Dr. Copas

diagnosed plaintiff with autism spectrum disorder, epilepsy and
mild executive dysfunction, and recommended that he work with an
organization that specializes in services for individuals with
autism to assist him in transitioning as an independent young
adult into the community (Tr.
f.

645-46).

Dr. Howard L. Barenfeld

Plaintiff was treated by Dr. Howard L. Barenfeld, his
primary care physician,

from 1997 through 2014.

Dr. Barenfeld's

records consist of approximately 29 pages of short, handwritten
notes from his treatment of plaintiff for ailments unrelated to
plaintiff's social security claim (Tr. 573-601).
However,

Dr.

Barenfeld filled out a functional capacity

report with respect to plaintiff's claim on July 28, 2014

21

(Tr.

460-74).

In that report,

Dr. Barenfeld stated that plaintiff was

suffering from Apserger's, a seizure disorder and asthma all of
which were controlled with medication

(Tr.

460).

Dr. Barenfeld

opined that plaintiff did not have any physical, neurological or
mental abnormalities

(Tr.

460-74).

Dr. Barenfeld further opined

that plaintiff's attitude, appearance, behavior,
perception, mood, attention,

speech, thought,

concentration, orientation, memory

and thought process were all normal

(Tr.

468).

Dr. Barenfeld

concluded that plaintiff did not have any work-related physical
or mental limitations

g.

(Tr.

470-74).

Dr. Leslie Helprin

Plaintiff visited Dr. Leslie Helprin for a psychiatric
consultative examination on September 23, 2014
Plaintiff reported difficulty sleeping,

(Tr.

486).

loneliness and anxiety

about finding a girlfriend and finding a job after college
487).

(Tr.

Plaintiff's parents reported that plaintiff was able to

dress, bathe and groom himself, and that he was able to cook and
prepare his own meals,
money (Tr.

488).

clean, do laundry,

shop and manage his own

Plaintiff was unable to drive, but occasionally

took public transportation

(Tr.

488).

Plaintiff reported that

his hobbies included politics, watching television, listening to
music,
movies,

running, bowling, tennis,

going out to eat,

going to the

flying remote-controlled airplanes and collecting stamps

22

and coins

(Tr. 488).

Plaintiff further reported that he social-

ized with friends and had "pretty good" family relationships

(Tr.

488) .
Dr. Helprin noted that plaintiff was well dressed and
appropriately groomed at his evaluation (Tr.

487).

Plaintiff was

cooperative, alert, exhibited normal behavior and maintained
appropriate eye contact

(Tr. 487).

Plaintiff's thought process

was coherent and goal-oriented, and his attention and concentration were intact

(Tr. 488).

Dr. Helprin noted that plaintiff's

mood was neutral to somewhat anxious and that his memory was
mildly impaired due to his anxiety (Tr. 488).

Dr. Helprin

described plaintiff's cognitive functioning as "average"

(Tr.

488) .
Dr. Helprin diagnosed plaintiff with adjustment disorder 15 with mild anxiety (Tr. 489).

She opined that plaintiff had

no limitations with following and understanding simple directions, performing simple and complex tasks independently, maintaining attention and concentration, maintaining a regular
schedule, making appropriate decisions,
others or dealing with stress

(Tr. 489)

1

relating adequately with
Dr. Helprin further

~Adjustment disorders are stress-related conditions in
which patients experience more stress than would normally be
expected in response to a stressful and unexpected event.
See
Adjustment Disorders, Mayo Clinic, available at
https://www.mayoclinic.org/diseases-conditions/symptomscauses/syc-20355224 (last visited Mar. 18, 2019).
23

opined that plaintiff's examination appeared consistent with some
secondary psychiatric difficulties, but that these findings were
not significant enough to interfere with plaintiff's ability to
function on a daily basis (Tr. 489).

Dr. Helprin recommended

that plaintiff continue with his education and seek counseling
services through his college if needed (Tr. 489).
h.

Dr. Rita Figueroa

Plaintiff visited Dr. Rita Figueroa, a general surgeon,
for a neurological consultative examination on September 26, 2014
(Tr. 492).

Plaintiff reported that he had been experiencing

petite seizures throughout his life and grand mal seizures since
2011

(Tr. 492).

Plaintiff reported that his last grand mal

seizure was in July 2014

(Tr. 492).

Dr. Figueroa noted that plaintiff was dressed
appropriately, maintained appropriate eye contact and appeared
oriented to time, person and place during his examination (Tr.
4 93) .

Plaintiff's memory, mood, affect and judgment were normal

with no abnormalities

Plaintiff's physical and

(Tr. 493).

neurological examinations were normal

(Tr. 493-94).

Dr. Figueroa

diagnosed plaintiff with seizures and opined that his prognosis
was fair

(Tr. 494).

Dr. Figueroa recommended that plaintiff

refrain from driving and operating machinery, but opined that he
had no other physical limitations (Tr. 494).

24

i.

Vitality Physicians Group Practice

Plaintiff visited Deborah Birnbaum, a licensed social
worker ("SW"), at Vitality Physicians Group Practice on July 21,
2015

(Tr. 568)

Plaintiff reported increased anxiety because he

had graduated in May and still had not found a job (Tr. 568).
Plaintiff further reported insomnia,

feelings of boredom and

hopelessness and panic symptoms, such as rapid breathing and
nausea (Tr. 568).
SW Birnbaum noted that plaintiff was alert, oriented
and properly groomed and dressed during his evaluation (Tr. 568)
She further noted that his memory,
(Tr. 568).

speech and behavior was normal

SW Birnbaum observed that plaintiff appeared anxious

and his thought content was "preoccupied"

(Tr. 568) .

SW Birbaum

diagnosed plaintiff with anxiety (Tr. 568)
Plaintiff returned to Vitality Physicians Group Practice a week later on July 28, 2015 and was examined by Dr.
Mitchell Cabisudo

(Tr. 570).

Plaintiff reported that his

condition remained unchanged (Tr. 570).

Dr. Cabisudo noted that

plaintiff was cooperative, oriented and alert during his evaluation (Tr. 571).

He further noted that plaintiff's judgment and

insight were "fair" and that plaintiff appeared anxious, but
exhibited a logical thought process

(Tr. 571).

Dr. Cabisudo

diagnosed plaintiff with anxiety and pervasive developmental

25

disorder, and opined that plaintiff had "moderate" symptoms
572) .

(Tr.

Dr. Cabisudo recommended an increase in plaintiff's

Lexapro medication and therapy to address his anxiety (Tr. 571).
Plaintiff visited Dr. Cabisudo again on August 11, 2015
and reported that he was feeling much better during the day, but
was still experiencing anxiety and "racing thoughts" at night
(Tr. 636).

Dr. Cabisudo noted that plaintiff was cooperative,

oriented and alert during his evaluation (Tr.

636).

He further

noted that plaintiff's mood had improved since his last visit and
that plaintiff exhibited a logical thought process

(Tr.

636).

Dr. Cabisudo diagnosed plaintiff with anxiety, pervasive developmental disorder and epilepsy, and continued to recommend medication and therapy (Tr.

636-37)

Plaintiff next visited Dr. Cabisudo on September 1,
2015 and reported feeling and sleeping much better (Tr.

634).

Dr. Cabisudo noted that plaintiff was cooperative, oriented and
alert during his evaluation (Tr.

634).

He further noted that

plaintiff's mood had improved since his last visit and that
plaintiff exhibited a logical thought process

(Tr.

634).

Dr.

Cabisudo continued to diagnose plaintiff with anxiety, pervasive
developmental disorder and epilepsy, and to recommend medication
and therapy (Tr. 634-35).
Plaintiff visited Dr.

Cabisudo again on October 20,

2015 and reported feeling angry about not being independent

26

(Tr.

632) .

Plaintiff further reported that he was losing friends due

to his inflexibility and poor social skills

(Tr.

632).

Dr.

Cabisudo noted that plaintiff was cooperative, oriented and alert
during his evaluation (Tr.

632).

He further noted that plain-

tiff's mood continued to be "improved" and that plaintiff exhibited a logical thought process

(Tr.

632).

Dr. Cabisudo continued

to diagnose plaintiff with anxiety, pervasive developmental
disorder and epilepsy, and to recommend medication and therapy
(Tr. 632-33).
Plaintiff visited Dr. Cabisudo again on June 11, 2016
and reported anxiety and insomnia

(Tr.

630).

Plaintiff further

reported that he had started a part-time job as a food server and
that he had broken up with his girlfriend, but that his friends
were helping him cope with being single (Tr.

630).

Dr. Cabisudo

noted that plaintiff was cooperative, oriented and alert during
his evaluation (Tr.

630).

He further noted that plaintiff's mood

had improved since his last visit and that plaintiff exhibited a
logical thought process

(Tr.

630).

Dr. Cabisudo continued to

diagnose plaintiff with anxiety, pervasive developmental disorder
and epilepsy, and to recommend medication and therapy (Tr.
31) .

27

630-

J.

Melanie Zeman

On September 21, 2015, Melanie Zeman, a licensed social
worker, filled out a medical source form on behalf of plaintiff
(Tr.

602).

SW Zeman stated that she had been working with

plaintiff since April 29, 2015 and opined that plaintiff was
having difficulty transitioning from college to independent
living due to his Asperger's, anxiety and OCD (Tr.

602).

SW

Zeman further opined that plaintiff needed "continued intensive
support" to help him transition into an independent adult

(Tr.

602) .

D.

Proceedings Before the ALJ
1.

Plaintiff's Testimony

Plaintiff testified that he was experiencing seizures
approximately once every two to three months

(Tr. 56).

Plaintiff

described these seizures as grand mal seizures and explained that
they caused him to lose consciousness and convulse on the floor
for approximately two and a half to five minutes

(Tr. 56-57)

Plaintiff testified that he was "looking actively" for
a job, but eventually admitted that he had not actually applied
anywhere because he found it too "anxiety provoking" to reach out
to or interact with authority figures

(Tr. 82-83).

Plaintiff

testified that he obtained his current food server position
28

through a job coach (Tr. 81).

Plaintiff testified that he enjoys

his position because it is very structured and claimed that he
does not believe he could perform in a job that did not have
structure (Tr. 86-87).
2.

Vocational Expert's Testimony

Vocational expert Suji Komoraf (the "VE") also testified at the hearing.

The ALJ asked the VE to consider a hypo-

thetical individual of plaintiff's age, education and work
history, who could perform work at all exertional levels with the
following limitations:
The person can understand, remember and carry out
simple work and can adapt to routine workplace changes.
In addition, the person can occasionally interact with
supervisors, coworkers and the general public.
The
person cannot work at unprotected heights, cannot work
at -- on ladders, ropes or scaffolds, cannot work on
machinery with moving mechanical parts such as conveyor
belts.
The person must avoid extreme temperatures.
The person cannot drive motor vehicles.
The person
must also avoid concentrated exposure to dust, fumes
and noxious gases.
(Tr. 89-90).

The AlJ asked the VE if such a hypothetical indi-

vidual could perform any occupations in the regional or national
economy (Tr.

90).

The VE testified that such an individual could

perform work as defined in the U.S. Department of Labor's Dictionary of Occupational Titles
Number 209.687-026,

("DOT")

as a mail clerk, DOT Code

of which there are 102,000 positions nation-

ally, an office helper, DOT Code No. 239.567-010, of which there

29

are 76,000 positions nationally, a housekeeping cleaner,

DOT Code

No. 323.687-014, of which there are 247,000 jobs nationally and a
marker,

DOT Code No. 209.587-034, of which there are 50,000

positions nationally (Tr.

90).

The VE also testified that a such

a hypothetical individual would not be able to sustain employment
if he had to be off task 20% of the workday

III.

(Tr.

90-91).

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

417

u.s.c.

§

--- F.3d --- ,

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

(.QIT curiam); Talavera v.

(2d Cir. 2014)

697 F.3d 145, 151

F.3d 117, 127

42

(2d Cir. 2012); Burgess v. Astrue,

(2d Cir. 2008).

537

Moreover, the court cannot "affirm

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

Lesterhuis v. Colvin,

Cir. 2015), quoting Burgess v. Astrue,

30

805 F.3d 83,

supra,

86

(2d

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,
1999) .

773

(2d Cir.

"Even if the Commissioner's decision is supported by

substantial evidence, legal error alone can be enough to overturn
the ALJ's decision."
328

(S.D.N.Y. 2009)

Ellington v. Astrue,

641 F. Supp. 2d 322,

However,

(Marrero, D.J.).

"where application

of the correct legal principles to the record could lead to only
one conclusion, there is no need to require agency reconsideration."

Johnson v. Bowen, 817 F.2d 983,

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.
( 1971) .

Consequently,

Perales,

402 U.S. 389, 401

"[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
Thus,

(per curiam),

(2d Cir. 1982)

"[i]n determining whether the agency's findings were

supported by substantial evidence,

31

'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

(citation

omitted).
2.

Determination
Of Disability

Under Title II and Title XVI of the Act, a claimant is
entitled to DIB or SSI if he can establish an "inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to
12 months."

last for a continuous period of not less than
42 U.S.C. § 423(d)(l)(A); see Barnhart v. Walton,

535 U.S. 212, 217-22

(2002)

(both impairment and inability to

work must last twelve months).

The impairment must be demon-

strated 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] is not only unable
to do [her] previous work but cannot, considering [the
claimant's] age, education, and work experience, engage
in any other kind of substantial gainful work which
exists in the national economy, regardless of whether
such work exists in the immediate area in which [the
claimant] lives, or whether a specific job vacancy
exists for [the claimant], or whether [the claimant]
would be hired if [the claimant] applied for work.
42 U.S.C.

§

423(d) (2)

(A).

In addition, to obtain DIB, the

claimant must have become disabled between the alleged onset date
and the date on which he was last insured.
32

See 42 U.S.C. §§

416(i), 423(a); 20 C.F.R.

§§

404.130,

404.315; McKinstry v.

Astrue, 511 F. App'x 110, 111 (2d Cir. 2013)
citing Kohler v. Astrue,

546 F.3d 260, 265

(summary order),

(2d Cir. 2008).

In

making the disability determination, the Commissioner must
consider:

"' (1) the objective medical facts;

medical opinions based on such facts;

(3)

(2) diagnoses or

subjective evidence of

pain or disability testified to by the claimant or others; and
(4)

the claimant's educational background, age, and work experi-

ence."'

Brown v. Apfel, 174 F.3d 59,

curiam), quoting Mongeur v. Heckler,
1983)

62

(2d Cir. 1999)

722 F.2d 1033, 1037

(per
(2d Cir.

( ~ curiam).
In determining whether an individual is disabled, the

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

20 C.F.R.

§§

404.1520(a) (4) (i)-(v),

416.920(a) (4) (i)-(v); see Selian v. Astrue, supra,
417-18; Talavera v. Astrue, supra,

697 F.3d at 151.

708 F.3d at
The first

step is a determination of whether the claimant is engaged in
substantial gainful activity ( "SGA") .
404 .1520 (a) (4) (i), 416. 920 (a) (4) (i).

20 C.F.R.

§§

If he is not, the second

step requires determining whether the claimant has a "severe
medically determinable physical or mental impairment."
§§

404.1520(a) (4) (ii), 416.920(a) (4) (ii).

20 C.F.R.

If the claimant does

not have a severe medically determinable impairment or combination of impairments, he is not disabled.

33

See Henningsen v.

Comrn'r of Soc. Sec. Admin., 111 F. Supp. 3d 250, 264
2015); 20 C.F.R.

§§

404.1520(c),

416.920(c).

(E.D.N.Y.

If he does, the

inquiry at the third step is whether any of claimant's impairments meet one of the listings in Appendix 1 of the regulations.
20 C.F.R.

§§

404.1520(a) (4) (iii), 416.920(a) (4) (iii).

If the

answer to this inquiry is affirmative, the claimant is disabled.
20 C.F.R.

§§

404.1520(a) (4) (iii),

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")

and whether the claimant can

still perform his past relevant work given his RFC.
§§

404.1520(a) (4) (iv),

20 C.F.R.

416.920(a) (4) (iv); see Barnhart v. Thomas,

supra, 540 U.S. at 24-25.

If he cannot, then the fifth step

requires assessment of whether, given the claimant's RFC, he can
make an adjustment to other work.

20 C.F.R.

404.1520(a) (4) (v), 416.920(a) (4) (iv).
found disabled.

20 C.F.R.

§§

§§

If he cannot, he will be

404.1520(a) (4) (v),

416. 920 (a) (4) (v).
RFC is defined in the applicable regulations as "the
most [the claimant] can still do despite [his]
20 C. F.R.

§§

404 .1545 (a) (1),

416. 945 (a) (1).

limitations."

To determine RFC,

the ALJ "'identif[ies] the individual's functional limitations or
[his]

restrictions and assess[es]

a function-by-function basis,

work-related abilities on

including the functions in para-

34

graphs

(b),(c), and (d)

of 20

[C.F.R.

§§]

404.1545 and 416.945."'

Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013)
curiarn) , quoting Social Security Ruling ( "SSR")
374184 at *l

(July 2, 1996).

(~

9 6-Bp, 19 9 6 WL

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.

16

20 C.F.R.

404.1567,

§§

416.967; see Schaal v. Apfel, 134 F.3d 496, 501 n.6
1998) .

(2d Cir.

This ability may then be found to be limited further by

nonexertional factors that restrict the claimant's ability to
work.

17

2015)

See Michaels v. Colvin,

621 F. App'x 35, 38 n.4

(summary order); Zabala v. Astrue, 595 F.3d 402,

(2d Cir.
410-11

(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

16

Exertional limitations are those which "affect only [ the
claimant's] ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling)" 20 C.F.R. §§ 404.1569a(b), 416.969a(b).
17

Nonexertional limitations are those which "affect only
[the claimant'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. §§ 404.1569a(c),
416.969a(c).
35

Commissioner to prove the final step -- that the claimant's RFC
allows the claimant to perform some work other than his past
work.

Selian v. Astrue, supra,

Astrue, supra,

708 F.3d at 418; Burgess v.

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).
In some cases, the Commissioner can rely exclusively on
the Medical-Vocational Guidelines

(the "Grids") contained in

C.F.R. Part 404, Subpart P, Appendix 2 when making the determination at the fifth step.
(N.D.N.Y. 1995).

Gray v. Chater,

"The Grid[s] take[]

903 F. Supp. 293, 297-98

into account the claimant's

RFC in conjunction with the claimant's age, education and work
experience.

Based on these factors,

the Grid[s]

indicate[)

whether the claimant can engage in any other substantial gainful
work which exists in the national economy."
supra,

Gray v. Chater,

903 F. Supp. at 298; see Butts v. Barnhart, supra, 388

F.3d at 383.
Exclusive reliance on the Grids is not appropriate
where nonexertional limitations "significantly diminish [a
claimant's] ability to work."

Bapp v. Bowen, 802 F.2d 601,

(2d Cir. 1986); accord Butts v. Barnhart, supra,

603

388 F.3d at 383.

"Significantly diminish" means "the additional loss of work
capacity beyond a negligible one or,

in other words, one that so

narrows a claimant's possible range of work as to deprive him of

36

a meaningful employment opportunity."

Bapp v. Bowen, supra, 802

F.2d at 606 (footnote omitted); accord Selian v. Astrue, supra,
708 F.3d at 421; Zabala v. Astrue, supra, 595 F.3d at 411.
Before an ALJ determines that sole reliance on the Grids is
proper in determining whether a plaintiff is disabled under the
Act, he must ask and answer the intermediate question -- whether
the claimant has nonexertional limitations that significantly
diminish his ability to work; an ALJ's failure to explain how he
reached his conclusion to this question is "plain error".

See

Maldonado v. Colvin, 15 Civ. 4016 (HBP), 2017 WL 775829 at *21*23

(S.D.N.Y. Feb. 23, 2017)

(Pitman, M.J.); see also Bapp v.

Bowen, supra, 802 F.2d at 606; St. Louis ex rel. D.H. v. Comm'r
of Soc. Sec., 28 F. Supp. 3d 142, 148
Astrue, 11 Civ. 4262
Mar. 4, 2013)

(JGK) (MHD), 2013 WL 1245455 at *19 (S.D.N.Y.

(Dolinger, M.J.)

adopted at, 2013 WL 1364138
D.J.).

(N.D.N.Y. 2014); Baron v.

(Report

&

Recommendation),

(S.D.N.Y. Mar. 26, 2013)

(Koeltl,

When the ALJ finds that the nonexertional limitations do

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

Butts

(internal quotation marks

omitted); see Heckler v. Campbell, 461 U.S. 458,

462 n.5

(1983)

("If an individual's capabilities are not described accurately by

37

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

The ALJ's Decision
The ALJ applied the five-step analysis described above

and determined that plaintiff was not disabled (Tr. 18-30).
As an initial matter, the ALJ found that plaintiff met
the insured status requirements of the Act through September 30,
2014

(Tr. 20).
At step one of the sequential analysis, the ALJ deter-

mined that plaintiff had not engaged in any substantial gainful
activity since January 1, 2011

(Tr. 20) . 18

At step two, the ALJ found that plaintiff had the
following severe medically determinable impairments:

pervasive

development disorder, autism spectrum disorder, OCD, executive
function disorder, anxiety and epileptic seizures

(Tr. 21).

At step three, the ALJ found that plaintiff's impairments did not meet or equal the criteria of the listed impairments and that plaintiff was not, therefore, entitled to a
presumption of disability (Tr. 21-2 3) .

The ALJ gave special

consideration to Listings 11.02 (convulsive epilepsy)

18

and 11.03

The ALJ acknowledged plaintiff's part-time work performed
after the alleged onset disability date, but found that "this
work activity did not rise to the level of substantial gainful
activity" (Tr. 20).
38

(non-convulsive epilepsy) and determined that plaintiff did not
meet these listings because he was not experiencing convulsive
seizures more than once a month and he was not experiencing nonconvulsive seizures more than once a week (Tr. 21).

The ALJ

further noted that there was evidence of plaintiff's non-compliance with his seizure medication (Tr. 21).
The ALJ also found that plaintiff's mental impairments
did not meet or medically equal Listings 12.04

(depressive and

bi-polar disorders),

12.06 (anxiety and obsessive-compulsive

disorders)

(autism spectrum disorder) because the

and 12.10

record did not show that plaintiff's mental impairments met the
requirements of paragraph B of these Listings; namely, that
plaintiff's impairments did not result in "at least two of the
following: marked restriction of activities of daily living;
marked difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence, or pace;
or repeated episodes of decompensation, each of extended duration"

(Tr. 21-22).

The ALJ further concluded that plaintiff did

also not meet the requirements of paragraph C of these Listings
because "the medical evidence of record [did] not indicate that
[plaintiff's] mental impairments have resulted in repeated
episodes of decompensation, a residual disease process resulting
in marginal adjustment, or a history of inability to function
outside of a highly supportive living arrangement"

39

(Tr. 22).

The ALJ then determined that plaintiff had the RFC to
perform a full range of work at all exertional levels, except
that he was limited to the nonexertional limitations of
[Plaintiff] can understand, remember, and carry out
simple work, and he can adapt to routine workplace
changes.
He can occasionally interact with supervisors, coworkers, and the public.
He must never drive
motor vehicles, work around unprotected heights or
machinery with moving mechanical parts such as conveyor
belts, or work on ladders, ropes, and scaffolds.
Finally, he must avoid temperature extremes and concentrated exposure to dust fumes and noxious gases.
(Tr. 22-23).
As part of his analysis of the severity of plaintiff's
conditions and in order to reach the RFC determination, the ALJ
examined the opinions of the treating and consultative sources
and assessed the weight to be given to each opinion based on the
objective medical record (Tr. 24-27).
The ALJ afforded "significant weight" to Dr. Figueroa's
opinion that plaintiff had no physical limitations, but that he
should avoid driving or operating machinery because it was
"consistent with the findings of her thorough examination" and
with the overall record (Tr. 24-25).
The ALJ afforded "significant weight" to Dr.
Barenfeld's opinion that plaintiff had no physical limitations
because plaintiff "was living and working independently at
college" and the opinion was consistent with the opinion of Dr.
Figueroa (Tr. 25).

However, the ALJ assigned "little weight" to

40

Dr. Barenfeld's opinion that plaintiff "had no limitations with
concentration, understanding,

social interaction, and adaptation"

because Dr. Barenfeld was not a mental health expert and his
opinion was inconsistent with the evidence of record that
demonstrated that plaintiff had moderate difficulties in those
areas

(Tr. 25).
The ALJ afforded "some weight" to Dr.

Devinsky's

opinion that plaintiff did not need more supervision than an
unimpaired worker due to his seizure disorder, but that he could
not work at heights, with power machines, with chemical hazards
or in extreme temperatures

(Tr. 25).

Devinsky "treated [plaintiff]

The ALJ noted that Dr.

for a number of years and ha[d]

a

longitudinal understanding of his impairment, treatment, and
symptoms"

(Tr. 25) .

The ALJ further found that this opinion was

"consistent with the evidence of record pertaining to [plaintiff's]

seizures"

(Tr. 25).

However, the ALJ assigned "little

weight" to Dr. Devinksy's opinion that plaintiff "should obtain
disability due to his seizure disorder and medical diagnoses"
because (1)

the record did not support a change in plaintiff's

condition during the few weeks between Dr. Devinsky's first
opinion that he could perform low stress work and his second
opinion that plaintiff was disabled,

(2)

the opinion was vague,

conclusory and lacked a function-by-function analysis and (3)
whether plaintiff is "disabled" is a determination reserved to

41

the Commissioner (Tr. 25).
The ALJ afforded "some weight" to the opinion of Dr.
Helprin that plaintiff's psychiatric difficulties were not
significant enough to interfere with his ability to function on a
daily basis because the opinion was consistent with her
examination and with the functioning exhibited by plaintiff,
"including living independently at college, attending classes
five days a week, performing activities of daily living,
socializing with friends,

and maintaining part time employment"

(Tr. 25-26).
The ALJ afforded "some weight" to Dr. Copans' opinion
that plaintiff should avoid holding jobs "with a high potential
for social conflict" and that he would be best at jobs that were
"fairly routine"

(Tr. 26).

The ALJ found this opinion to be

consistent with Dr. Copans' thorough examination, with the
opinion of Dr. Helprin and with plaintiff's activities of daily
living (Tr. 26).
The ALJ afforded "little weight" to SW Zeman's opinion
that plaintiff "was severely limited in his ability to follow
through with set goals and he needed continued intensive support
to help him move forward"
medical source
"vague,

(Tr. 26).

conclusory,

because SW Zeman was not an acceptable
The ALJ further found the opinion to be

and lack [ing]

[a]

function-by-function

analysis" and that it was inconsistent with the opinions of Ors.

42

Helprin and Copans

(Tr. 26-27).

The ALJ also considered plaintiff's testimony in his
RFC determination and found that while plaintiff's medically
determinable impairments could have caused his alleged symptoms,
a review of the entire case record showed that plaintiff's
statements regarding their intensity, persistence and limiting
effects were not entirely credible (Tr. 27).

First, the ALJ

found that plaintiff's daily activities were not as limited as
plaintiff claimed, considering he graduated college with a 3.14
grade point average, lived independently for four years of
college, ran track and field, was president of the political
awareness club and was a founder of the poetry club (Tr. 27)
Second, the ALJ noted that plaintiff's treatment consisted
entirely of medication which appeared to control his impairments
(Tr. 27).

Third, plaintiff successfully found employment after

he graduated, and the ALJ and the VE disagreed with plaintiff's
arguments that this position was a "sheltered workshop"

(Tr. 27-

28) .
At step four,

the ALJ found that plaintiff had no past

relevant work because his part-time work history did not reach
"substantial gainful activity levels"

(Tr. 28-29).

At step five,

the ALJ found that, based on the Grids

and the VE's testimony,

jobs existed in significant numbers in

the national economy that plaintiff could perform, given his age,

43

education, work experience and RFC (Tr. 29-30).
C.

Analysis of the
ALJ's Decision
Plaintiff contends that the ALJ's disability

determination was erroneous because:
treating physician rule;

(1) the ALJ violated in

(2) the ALJ failed to properly assess

plaintiff's credibility and (3) the ALJ's RFC assessment was
"flawed"

(Plaintiff's Notice of Motion for Judgment on the

Administrative Record and Pleadings and Memorandum of Law in
Support, dated July 16, 2018

(D. I. 14)

("Pl. Memo.")).

The

Commissioner contends that the ALJ's decision was supported by
substantial evidence and should be affirmed (Memorandum of Law in
Support of Defendant's Cross-Motion for Judgment on the Pleadings, dated Sept. 13, 2018

(D.I. 17)

("Def. Memo.")).

As described above, the ALJ went through the sequential
process required by the regulations.

The ALJ's analysis at steps

one and two were decided in plaintiff's favor,
sioner has not challenged those findings.
in the Commissioner's favor,
those findings.

and the Commis-

Step three was decided

and plaintiff has not challenged

I shall, therefore,

limit my discussion to

addressing whether the ALJ's analysis at step four and five
complied with the applicable legal standards and was supported by
substantial evidence.

44

1.

The Treating Physician Rule

Plaintiff contends that remand is required because the
ALJ gave less than controlling weight to the opinions of Dr.
Devinsky (Pl. Memo. at 14-17).
In considering the evidence in the record, the 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 .
§§

404.1527(c) (2),

F.3d 126, 134

[the]

record."

20 C.F.R.

416.927(c) (2);" 9 see also Shaw v. Chater, 221

(2d Cir. 2000); Diaz v. Shalala, 59 F.3d 307, 313

n.6 (2d Cir. 1995); Schisler v. Sullivan, 3 F.3d 563, 567

(2d

Cir. 1993).
"[G]ood reasons" must be given for declining to afford
a treating physician's opinion controlling weight.
404.1527(c) (2),

§§

416.927(c) (2); Schisler v. Sullivan, supra, 3

F.3d at 568; Burris v. Chater,
at *4 n.3

20 C.F.R.

(S.D.N.Y. Apr. 2,

94 Civ. 8049 (SHS), 1996 WL 148345

1996)

(Stein,

D.J.).

The Second

Circuit has noted that it "'do[es] not hesitate to remand when

19

The SSA recently 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. §§ 404.1520c, 416.920c.
Because plaintiff's claim was
filed before that date, those regulations do not apply here.
45

the Commissioner has not provided "good reasons" for the weight
given to a treating physician[']s opinion.'"
592 F. App'x 49, 50

(2d Cir. 2015)

Morgan v. Colvin,

(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).

As long as 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

(2d Cir. 2013);

Petrie v . Ast rue , 4 12 F . App ' x 4 0 1 , 4 0 6 - 0 7 ( 2 d Cir . 2 0 11 )
mary order); Kennedy v. Astrue,
2 00 9)

( summary order) .

343 F. App'x 719, 721

( sum -

(2d Cir.

"The opinions of examining physicians are

not controlling if they are contradicted by substantial evidence,
be that conflicting medical evidence or other evidence in the
record."

Krull v. Colvin,

(summary order)

669 F. App'x 31, 32

(2d Cir. 2016)

(citation omitted); see also Monroe v. Comm'r of

Soc . Sec . , 6 7 6 F . App ' x 5 , 7 ( 2 d Cir . 2 0 1 7 )

( summary order ) .

The

ALJ is responsible for determining whether a claimant is "disabled" under the Act and need not credit a treating physician's
determination on this issue if it is contradicted by the medical
record.

See Wells v. Comm'r of Soc. Sec.,

(2d Cir. 2009)

338 F. App'x 64,

(summary order).

The ALJ may rely on the opinion of a consultative

46

66

physician where it is supported by substantial evidence in the
record.

See Richardson v. Perales, supra, 402 U.S. at 410;

Camille v. Colvin,

652 F. App'x 25, 27-28

(2d Cir. 2016)

(summary

order); Diaz v. Shalala, supra, 59 F.3d at 313 n.5; Mongeur v.
Heckler, supra,
3:16 CV 2064
2018)

722 F.2d at 1039; see also Shrack v. Berryhill,

(RMS), 2018 WL 2926564 at *10

(D. Conn. June 7,

( "The Second Circuit has recognized .

. the opinions of

non-examining sources may 'override treating sburces' opinions,
provided they are supported by evidence in the record." quoting
Schisler v. Sullivan, supra, 3 F.3d 563 at 1993).
Plaintiff claims, and the Commissioner and the ALJ
concede, that Dr. Devinksy was one of plaintiff's treating
physicians.

Plaintiff contends that the ALJ violated the treat-

ing physician rule when he afforded "some weight" to Dr.
Devinsky's August 2016 opinion that plaintiff did not need more
supervision than an unimpaired worker due to his seizure disorder, but that he could not work at heights, with power machines,
with chemical hazards or in extreme temperatures, and when he
afforded "little weight" to Dr. Devinsky's September 2016 opinion
that plaintiff should "obtain disability"

(Pl. Memo. at 14-17)

Plaintiff's first objection is somewhat puzzling.
Although plaintiff is correct that the ALJ used the term "some
weight" and not "significant weight" when he was assessed Dr.

Devinsky's August 2016 opinion, the ALJ's RFC finding was taken

47

almost verbatim from Dr.

Devinsky's opinion (Tr. 25).

The ALJ

found that plaintiff had the RFC to perform a full range of work
at all exertional levels, except that he was limited to the
nonexertional limitations of "never driv[ing] motor vehicles,
work[ing] around protective heights or machinery with moving
mechanical parts" and "avoid[ing] temperature extremes and
concentrated exposure to dust fumes and noxious gases"
23).

(Tr. 22-

This RFC is entirely consistent with Dr. Devinsky's opinion

that plaintiff "could not work at heights, with power machines or
chemical hazards or in extreme temperatures"

(Tr. 25).

Thus, the ALJ did not violate the treating physician
rule by affording "some weight" to this opinion.
Chater,

93 Civ.

26, 1995)

6240

(Kaplan,

(LAK), 1995 WL 791963 at *9

D.J.)

See Walzer v.
(S.D.N.Y. Sept.

(holding that even if the ALJ violated

some portion of the treating physician rule,

any such error is

considered harmless if it would not have changed the ultimate RFC
finding).
Turning to Dr. Devinsky's second opinion that plaintiff
should "obtain disability", the ALJ provided good reasons for
affording "little weight" to this opinion.
First, the ALJ found this opinion to be inconsistent
with Dr. Devinsky's prior medical source statement given just a
few weeks earlier

(Tr.

25).

On August 17,

2016,

Dr.

Devinsky

opined that plaintiff would not require more supervision at work

48

because of his epilepsy and that he was capable of performing a
low-stress job, but that plaintiff was unable to operate machinery, work at heights or operate a motor vehicle

(Tr.

653-54).

Less than a month later, Dr. Devinsky wrote a letter in which he
stated that plaintiff should "obtain disability due to his
seizure disorder and medical diagnoses"

(Tr.

655) .

The ALJ is

correct is that these two opinions are inconsistent.
The ALJ is also correct that the record did not support
a change in plaintiff's condition during the three weeks between
Dr. Devinsky's first opinion that plaintiff could perform low
stress work and his second opinion that plaintiff was disabled
(Tr. 25).

Plaintiff contends that by listing this reason, the

ALJ "impermissibly substitute[d] his opinion for competent
medical opinion"

(Pl. Memo. at 16).

The ALJ did no such thing.

A plain reading of the record shows that plaintiff did not
experience any additional seizures between August 17 and September 7, 2016, nor did he even go visit or get examined by any
other medical provider.

Thus, there is no logical explanation

for the inconsistency between Dr. Devinsky's two opinions.
Second, the ALJ correctly found this opinion to be
"vague, concl usory, and lack [ ing]
analysis"

(Tr. 25).

letter that Dr.

[a]

function-by-function

It is clear from the September 7,

2016

Devinsky did not examine plaintiff on that date

and did not provide a function-by-function analysis, or any

49

explanation for that matter, as to why he believed plaintiff
should "obtain disability"

(Tr.

655).

Third, it is well settled that "[a] treating physician's statement that the claimant is disabled cannot itself be
determinative" with respect to a claim of disability claim under
the Act.

Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); see

also Harris v. Astrue,

935 F. Supp. 2d 603,

aff'd, 561 F. App'x 81

(2d Cir. 2014)

609

(W.D.N.Y. 2013),

(treating physician's

"opinion that plaintiff appeared permanently disabled and unable
to do any work is a conclusion of law specifically reserved to
the judgment of the Commissioner").
Thus, the ALJ provided good reasons for not giving
controlling weight to Dr. Devinsky's opinion that plaintiff
should "obtain disability" and did not violate the treating
physician rule.
2.

Plaintiff's Credibility

Plaintiff next contends that the ALJ erred in assessing
plaintiff's credibility by not giving proper weight to plaintiff's subjective complaints and his claims of their effect on
his ability to work (Pl. Memo. at 17-20).
In Genier v. Astrue, supra,

606 F.3d at 49, the Second

Circuit set out the framework an ALJ must follow in assessing the
credibility of a plaintiff's subjective complaints in making an

50

RFC finding:
When determining a claimant's RFC, the ALJ is required
to take the claimant's reports of pain and other limitations into account, 20 C.F.R. § 416.920; see
McLaughlin v. Sec'y of Health, Educ. & Welfare, 612
F.2d 701, 704-05 (2d Cir. 1980), but is not required to
accept the claimant's subjective complaints without
question; he may exercise discretion in weighing the
credibility of claimant's testimony in light of the
other evidence in the record.
Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1978).
The regulations provide a two-step process for
evaluating a claimant's assertions of pain and other
limitations.
At the first step, the ALJ must decide
whether the claimant suffers from a medically determinable impairment that could reasonably be expected to
produce the symptoms alleged.
20 C.F.R. § 404.1529(b)
That requirement stems from the fact that subjective
assertions of pain alone cannot ground a finding of
disability.
20 C.F.R. § 404,1529(a).
If the claimant
does suffer from such an impairment, at the second
step, the ALJ must consider "the extent to which [the
claimant's] symptoms can reasonably be accepted as
consistent with the objective medical evidence and
other evidence" of record.
Id.
The ALJ must consider
"[s]tatements [the claimant] or others make about [his]
impairment (s), [his] restrictions, [his] daily activities, [his] efforts to work, or any other relevant
statements [he] make[s] to medical sources during the
course of examination or treatment, or to [the agency]
during interviews, on applications, in letters, and in
testimony in [its] administrative proceedings."
20 C.F.R.

§

404.1512(b) (3); see also 20 C.F.R.

S.S.R. 96-7p, 1996 WL 374186 at *l

§

404.1529(a);

(July 2, 1996).

credibility determination is entitled to deference.
Apfel, 177 F.3d 128, 135 (2d Cir. 1999)

An ALJ's
See Snell v.

("After all, the ALJ is

in a better position to decide issues of credibility.") .
Applying the two-part framework,

and referring specifi-

cally to SSR 96-7p, supra, the ALJ found that "after careful
51

consideration of the evidence .

[plaintiff's] medically

determinable impairments could reasonably be expected to cause
the alleged symptoms; however,

[plaintiff's]

statements concern-

ing the intensity, persistence and limiting effects of these
symptoms

[were]

not entirely consistent with the medical evidence

and other evidence in the record"

(Tr. 27) .

Specifically, the

ALJ found that plaintiff's claim that he was too disabled to work
inconsistent with plaintiff's daily activities, his course of
treatment and his prior work history

(Tr.

27-28).

Plaintiff graduated Mount Saint Mary's College with a
3.14 grade point average and was an active member of the student
body during his four years there

(Tr.

40-48).

Although plaintiff

explained that he was given special accommodations when he took
his examinations, the record reflects that he was able to go to
class five days a week, participate in track and field,

start a

poetry club and become president of the political awareness club
(Tr.

40-48).

The record also reveals that plaintiff was capable

of living independently on campus for four years

(Tr.

41).

Thus,

plaintiff's description of daily activities is inconsistent with
his subjective complaints.
Plaintiff's treatment throughout the entire relevant
period consisted of medication.

Although there are some

instances of non-compliance throughout the record, these medications appear to have largely controlled plaintiff's epilepsy and

52

did not cause him to suffer any debilitating side effects that
would prevent him from maintaining work.
Finally, there is substantial evidence that plaintiff
worked in seasonal and part-time jobs from high school through
the present (Tr. 51-56).

While plaintiff testified that he had

some difficulties working with authority figures and following
instructions, he reported that he never lost a job because of
those difficulties, and that was doing well in his position as a
food server because he was given clearly defined tasks
250) .

(Tr. 83,

The ALJ accounted for these difficulties by limiting

plaintiff to simple, unskilled work and work that only required
occasional contact with others

(Tr. 23).

Thus, the ALJ properly considered plaintiff's
credibility when making his RFC determination.
3.

Step 4: the RFC

Plaintiff contends that the ALJ's RFC determination was
"flawed" because his summary of the evidence in support of his
RFC was "confusing", the ALJ should have called a medical expert
and the ALJ "improperly modifie[d]" part of Or. Devinsky's
opinion (Pl. Memo. at 21-23).

Plaintiff's claims are meritless.

53

a.

The ALJ's Summary

First, the ALJ's summary of the medical evidence was
not "confusing."

On the contrary, the ALJ discussed the opinions

of plaintiff's treating and consultative physicians and went on
to explain in detail how he accounted for plaintiff's
nonexertional limitations:
In summary, the medical record and [plaintiff's] allegations support the residual functional capacity defined above.
The epileptic seizures are accounted for
by limiting [plaintiff] to never driving motor vehicles; working around unprotected heights or machinery
with moving mechanical parts such as conveyor belts;
working on ladders, ropes, and scaffolds; and avoiding
temperature extremes and concentrated exposure to dust
fumes and noxious gases.
This is supported by the
medical records indicating periodic seizures and treatment for such seizures for much of [plaintiff's] life,
the opinion of [plaintiff's] neurologist, Dr. Devinsky,
and the recommendations that [plaintiff] not obtain a
driver's license.
[Plaintiff's] mental impairments are
accounted for by the limitations that [plaintiff] is
capable of simple work, adapting to routine workplace
changes, and occasionally interacting with supervisors,
coworkers, and the public.
This is supported by Dr.
Devinsky's opinion that [plaintiff] is capable of low
stress work, Dr. Copans' opinion that [plaintiff] avoid
certain jobs with a high potential for social conflict
and that he may be best at routine jobs, and the opinion of J. Alpert that [plaintiff] is capable of full
time employment with accommodations for his limits with
stress tolerance and responding to others in the workplace.
It is supported by the evidence that indicates
[plaintiff] has problems with multi-tasking, conflicts
with authority, and difficulty with social interactions.
It is also supported by [plaintiff's] activities of daily living and his ability to live independently at college, participate in social and sports
clubs, and engage in part time employment that involves
simple and routine tasks.

54

(Tr. 28

(internal citations omitted)).

The ALJ's summary is

extremely clear and concise, and shows that his RFC finding was
supported by substantial evidence.

Furthermore, plaintiff does

not set forth any substantive arguments as to why the summary was
improper or confusing.
b.

No Medical Expert

Plaintiff's argument that the ALJ erred by not calling
a medical expert to assess plaintiff's RFC similarly fails.
While an ALJ has an obligation to fully develop the record,

it is

well established that "where there are no obvious gaps in the
administrative record, and where the ALJ already possesses a
'complete medical history,' the ALJ is under no obligation to
seek additional information in advance of rejecting a benefits
claim."

Rosa v. Callahan, 168 F. 3d 72, 79 n. 5 (2d Cir. 1999),

quoting Perez v. Chater, 77 F.3d 41,

48

(2d Cir. 1996).

Furthermore, the regulations do not require that the ALJ seek an
opinion of a medical expert at step four.

See Velez v. Colon, 15

Ci v . 0 4 8 7 ( SAS ) , 2 0 1 5 WL 8 4 914 8 5 at * 9 - * 1 0 ( S . D . N . Y . Dec . 9 ,
2015)

(Scheindlin, D.J.)

(ALJ under no obligation to seek an

expert medical opinion); Van Valkenberg ex rel. B.G. v. Astrue,
08 CV 0959 (DNH/VEB), 2010 WL 2400455 at *17
2010)

(Report

&

(N.D.N.Y. May 27,

Recommendation), adopted at, 2010 WL 2400443

(N.D.N.Y. June 10, 2010)

("[T]he regulations leave calling a

55

medical expert to the discretion of the ALJ.").
The ALJ had a full administrative record here with
medical records from more than ten different healthcare providers
who treated or examined plaintiff over a 20-year period prior to
the hearing.

Thus, the ALJ was under no obligation to call or

consult with a medical expert during his RFC analysis.
c.

The ALJ Did Not "Modify"
Dr. Devinksy's Opinion

Finally, plaintiff contends that the ALJ "impermissibly
modifie[d] Dr. Devinsky's opinion" because Dr. Devinsky opined
that plaintiff should "[a]void extremes in temperature, avoid
dust,

fumes, gas and chemical hazards'' and the ALJ improperly

"insert[ed] the word 'concentrated' into his paraphrase of Dr.
Devinsky' s opinion"

(Pl. Memo. at 23).

Plaintiff misstates the record.

The ALJ paraphrased

Dr. Devinsky's opinion correctly and did not include the word
"concentrated"

(Tr. 25).

In fact, the ALJ paraphrased this

opinion almost word-for-word from what is stated in plaintiff's
motion papers:
Dr. Devinsky
. opined on August 17, 2016 that due
to [plaintiff's] seizure disorder, he does not need
more supervision than an unimpaired worker, but that he
cannot work at heights, with power machines, or operate
a motor vehicle.
[Plaintiff] should avoid extremes in
temperature, dust, fumes, gases, and chemical hazards.
He also opined that [plaintiff] is capable of low
stress work.
The undersigned gives this opinion some
weight.
56

(Tr. 25).

In all likelihood, plaintiff is referring to the ALJ's

RFC finding in which the ALJ stated that plaintiff "must also
avoid concentrated exposure to dust,

fumes and noxious gases"

(Tr. 23).
First, an ALJ is not required to adopt a treating's
physician's opinion verbatim in his RFC analysis so long as his
RFC finding is supported by substantial evidence, as it is here.
See Stewart v. Berryhill, 16 Civ. 4940
at *l (S.O.N.Y. July 14, 2017)

(Seibel,

(CS) (JCM), 2017 WL 2992504
D.J.)

("the RFC determi-

nation is the Commissioner's decision under the applicable
regulations, so it need not parrot the finding of any particular
doctor") .

Second, plaintiff fails to explain how the omission of

the word "concentrated" would have changed the ALJ's disability
determination.

20

The VE testified that a person with plaintiff's

20

Plaintiff cites Forrest v. Colvin, 15 Civ. 1573 (KPF),
2016 WL 3528191 (S.D.N.Y. June 22, 2016) (Failla, D.J.), which
provides some support for his position.
However, Forrest v.
Colvin is distinguishable here.
In that case, the ALJ
specifically relied on a consultative physician's opinion that a
plaintiff could engage in light exertional work so long as she
avoided "concentrated exposure to dust, fumes, gases, extreme
temperatures and allergens" as a reason to reject the opinion of
plaintiff's treating physician because it was inconsistent with
the consultative physician's findings.
2016 WL 3528191 at *9*13.
However, the consultative physician's report never
mentioned the word "concentrated." 2016 WL 3528191 at *9-*13.
The Honorable Katherine Polk Failla, United States District Judge
found that because of this error, this was not a "good reason"
for the ALJ's rejection of the treating physician's opinion.
2016 WL 3528191 at *13.
Judge Failla further found that "the
ALJ's addition of the word 'concentrated' before the list of
irritants [p]laintiff must avoid may have significantly impacted
(continued ... )
57

nonexertional limitations could perform work as a mail clerk,
office helper, housekeeper and marker (Tr. 29).

With the excep-

tion of potentially a housekeeper, none of the aforementioned
positions would require "exposure to dust,
gases."
IV.

Thus, remand is not warranted.

2

fumes and noxious

:

Conclusion
Accordingly,

for all the foregoing reasons, the

Commissioner's motion for judgment on the pleadings is granted

20

( • • • continued)
his decision not to call a vocational expert and, ultimately, his
'not disabled' finding."
2016 WL 3528191 at *13.

Thus, Forrest's rationale is inapplicable here because (1)
the ALJ did not improperly mis-characterize Dr. Devinsky's
opinion, (2) the ALJ did not specifically rely on Dr. Devinsky's
opinion to reject the opinion of another treating physician and
(3) the ALJ called and specifically relied on a VE's testimony.
See Stewart v. Berryhill, 16 Civ. 4940 (CS) (JCM), 2017 WL 9534748
at *22 (S.D.N.Y. June 23, 2017) (McCarthy, M.J.) (no error where
a doctor's report stated that plaintiff "should avoid smoke,
dust, or other known respiratory irritants" and the ALJ added the
word "concentrated" to his RFC) (Report & Recommendation),
adopted at Stewart v. Berryhill, supra, 2017 WL 2992504 at *1 n.2
(noting how the underlying facts of that case were
distinguishable from Forrest).
21

Plaintiff also argues that the testimony of the VE was
"flawed" because the hypotheticals proffered to him were
"inaccurate and incomplete" ( Pl. Memo. at 24) .
However,
plaintiff's only substantive argument to support this assertion
is that the ALJ's "credibility determination and RFC
determinations [were] deficient" (Pl. Memo. at 24).
As discussed
at length above, the ALJ's credibility and RFC determinations
were proper and supported by substantial evidence.
Thus, the
hypotheticals posed to the VE were proper and his testimony was
not flawed.
58

and plaintiff's motion is denied.

The Clerk of the Court is

respectfully requested to mark D.I. 13 and D.I. 16 closed, and

respectfully requested to close the case.
Dated:

New York, New York
March 25, 2019
SO ORDERED

HENRYPIAN
-Pf
United States Magistrate Judge
Copies transmitted to
All Counsel

59