Newell v. Saul
Filing
24
OPINION & ORDER re: 20 MOTION for Judgment on the Pleadings . filed by Andrew Saul, 13 MOTION for Judgment on the Pleadings and Administrative Record. filed by Eugene Newell. For the foregoing reasons, Newell's mo tion for judgment on the pleadings is granted, the Commissioner's cross-motion is denied, and the case is remanded to the ALJ pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the ALJ should: (1) Provide a comprehensive analysis, including explicit consideration of all of the Burgess factors, in determining how much weight to assign Dr. Aftab's 2013 opinion; and (2) Reexamine the requirements under Listing 12.05B in light of Newell's treating physicians' opinions and all other relevant medical evidence. SO ORDERED. (Signed by Magistrate Judge James L. Cott on 2/17/2021) (kv) Transmission to Orders and Judgments Clerk for processing.
Case 1:19-cv-10831-JLC Document 24 Filed 02/17/21 Page 1 of 57
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------X
EUGENE NEWELL,
:
:
Plaintiff,
:
:
-against:
:
ANDREW M. SAUL,
:
Commissioner, Social Security Administration,
:
:
Defendant.
:
:
------------------------------------------------------------------------X
OPINION & ORDER
2/17/2021
19-CV-10831 (JLC)
Case 1:19-cv-10831-JLC Document 24 Filed 02/17/21 Page 2 of 57
TABLE OF CONTENTS
I.
BACKGROUND ...................................................................................................... 1
A.
Procedural Background ...................................................................................... 1
B.
The Administrative Record................................................................................. 3
1.
Newell’s Background ....................................................................................... 3
2.
Relevant Medical Evidence ............................................................................. 4
a.
Treatment History—Physical Impairments ............................................... 4
i.
Steven Jacobs, M.D.—Treating Neurologist ........................................... 4
ii.
George Thompson, D.C.—Treating Chiropractor ................................... 5
iii. Mark Medici, M.D.— Orthopedic Physician ........................................... 5
b.
Treatment History—Mental Impairments ................................................. 6
i.
Naeem Aftab, M.D.—Treating Psychiatrist ............................................ 6
ii.
Stephen Krieg, M.D.—Treating Psychiatrist .......................................... 6
iii. Denise Morales, LMSW—Therapist ........................................................ 8
iv. Barry Bachenheimer, CSW—Social Worker ........................................... 9
c.
Opinion Evidence ....................................................................................... 10
i.
George Thompson, D.C.—Treating Chiropractor ................................. 10
ii.
Rita Figueroa, M.D.—Consultative Orthopedic Examiner .................. 11
iii. George Adams, M.D.—Consultative Internal ....................................... 12
iv. Naeem Aftab, M.D.—Treating Psychiatrist .......................................... 12
v.
Barry Bachenheimer, CSW—Social Worker ......................................... 14
vi. Leslie Helprin, Ph.D.—Consultative Psychological Examiner............. 14
vii. Leslie Fine, M.D.—Reviewing Psychiatrist .......................................... 15
viii. Z. Mata, M.D.—Reviewing Psychiatrist ................................................ 15
3.
ALJ Hearing .................................................................................................. 16
II. DISCUSSION ....................................................................................................... 18
A.
Legal Standards ................................................................................................ 18
1.
Judicial Review of Commissioner’s Determinations .................................... 18
i
Case 1:19-cv-10831-JLC Document 24 Filed 02/17/21 Page 3 of 57
2.
Commissioner’s Determination of Disability ............................................... 20
a.
Five-Step Inquiry ....................................................................................... 21
b.
Duty to Develop the Record ....................................................................... 22
c.
Treating Physician’s Rule .......................................................................... 24
d.
Claimant’s Credibility................................................................................ 27
B. The Court’s 2017 Decision Remanding for Further Administrative
Proceedings ........................................................................................................ 29
C.
The ALJ’s Decision ............................................................................................ 30
D. Analysis ............................................................................................................. 38
1.
The ALJ Did Not Properly Apply the Treating Physician Rule .................. 39
a. The ALJ Failed To Provide Good Reasons For Assigning “Little Weight”
to Dr. Aftab’s Opinion ................................................................................. 45
b. The ALJ’s Application of the Treating Physician Rule Was Not Harmless
Error ............................................................................................................ 49
2. The ALJ’s Step Three Finding Must Be Reconsidered in Light of the ALJ’s
Error in Applying the Treating Physician Rule ............................................ 50
3.
The Case Is Remanded For Further Proceedings ........................................ 53
III. CONCLUSION ..................................................................................................... 54
ii
Case 1:19-cv-10831-JLC Document 24 Filed 02/17/21 Page 4 of 57
Eugene Newell seeks judicial review of a final determination by the
Commissioner of the Social Security Administration, which denied Newell’s
application for disability insurance benefits and supplemental security income
under the Social Security Act. The parties have cross-moved for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the
reasons set forth below, Newell’s motion is granted, the Commissioner’s crossmotion is denied, and the case is remanded for further administrative proceedings.
I.
BACKGROUND
A. Procedural Background
Newell filed for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) on March 27, 2009. Administrative Record (“AR”), Dkt. No.
10, at 45–46, 135–45. 1 He alleged a disability onset date of December 31, 2007. Id.
at 135, 142. The Social Security Administration (“SSA”) denied Newell’s claims on
June 22, 2009. Id. at 67–74. Newell filed a written request for a hearing before an
Administrative Law Judge (“ALJ”) on August 6, 2009. Id. at 79–80. ALJ Roberto
Lebron held a hearing on September 24, 2010 and subsequently issued an
unfavorable decision on November 19, 2010. Id. at 1–44, 47–63. Newell sought
review of the ALJ’s decision by the SSA Appeals Council on December 20, 2010. Id.
at 130–32. His request was denied on January 25, 2012, rendering the ALJ’s
decision final. Id. at 64–66. On February 17, 2012, Newell timely filed a civil action
The page numbers refer to the sequential numbering of the certified
Administrative Record provided on the bottom right corner of the page, not the
numbers produced by the Electronic Case Filing System.
1
1
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in this District, seeking judicial review of the Commissioner’s decision pursuant to
42 U.S.C. § 405(g). Id. at 543–44. However, prior to any decision, the parties
agreed to have the case remanded to the Commissioner for further administrative
proceedings, and the Honorable P. Kevin Castel approved the parties’ Stipulation
and Order of Remand on September 12, 2012. Id. at 545–47.
On remand, ALJ Lebron held a hearing on July 11, 2013, but retired before
issuing a decision. Id. at 433–71. The matter was then reassigned to ALJ Robert
Gonzalez and a supplemental hearing was held on February 3, 2015. Id. at 472–
542. On May 28, 2015, ALJ Gonzalez issued an unfavorable decision denying social
security benefits, and Newell again sought judicial review of the ALJ’s decision. Id.
at 405–32. By Order dated March 31, 2017, Judge Castel adopted Magistrate Judge
Debra Freeman’s Report and Recommendation in substantial part, and remanded
the case for further proceedings. Id. at 2082–2179. 2 Specifically, Judge Castel
remanded the case for a determination under Listing 12.05C and for the proper
application of the treating physician rule. Id. at 2100. Following this second
remand, ALJ Gonzalez held a hearing on July 11, 2019 and issued another
unfavorable decision on August 26, 2019. Id. at 1958–91, 2019–51.
Newell timely commenced the present action on November 22, 2019, seeking
judicial review of the Commissioner’s decision pursuant to 42 U.S.C. § 405(g).
2 Judge
Castel accepted the 2015 case (15-CV-7095 (PKC) (DF)) as related to the
original 2012 case (12-CV-1237 (PKC)).
2
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Complaint, Dkt. No. 1. 3 The Commissioner answered Newell’s complaint by filing
the administrative record on March 4, 2020. AR, Dkt. No. 10. The parties
subsequently consented to my jurisdiction on March 9, 2020. Dkt. No. 12. On May
4, 2020, Newell moved for judgment on the pleadings seeking reversal and remand
solely for the calculation of benefits or, in the alternative, for further administrative
proceedings (Dkt. No. 13), and submitted a memorandum of law in support of his
motion (Dkt. No. 14, “Pl. Mem.”). The Commissioner cross-moved for judgment on
the pleadings on September 4, 2020 (Dkt. No. 20) and submitted a memorandum of
law in support of his cross-motion (Dkt. No. 21, “Def. Mem.”). On September 25,
2020, Newell filed his reply papers. Dkt. No. 22 (“Pl. Reply”).
B. The Administrative Record
1. Newell’s Background
Newell was born on December 14, 1961. AR at 135. He was 46 years old on
his alleged onset date of disability (December 31, 2007). Id. Newell attended
special education classes in high school and was granted an IEP diploma in June
1981. Id. at 149–50. Prior to the alleged disability onset date, Newell was
employed as a fast-food worker, a general hardware salesperson and maintenance
person, and a salesclerk. Id. at 167–74. After the alleged disability onset date,
Newell performed some work as a pizza delivery driver, volunteered at a soup
In the notice of unfavorable decision, the ALJ observed that his decision “will
become final on the 61st day following the date of this notice.” AR at 1959. After
the decision became final, Newell had 60 days to file a new civil action. He did so
within this time frame, and thus this action is timely. In any event, the
Commissioner has not raised untimeliness as a defense.
3
3
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kitchen, and helped out at his landlord’s bookstore; in exchange for his work, he was
given free meals and housing. Id. at 2033–36. As of 2019, he lived in a home with
friends in Orange County, id. at 1958, but previously lived alone for approximately
a year. Id. at 2034–35.
Newell alleges he suffers from the following impairments: depression,
anxiety, and chronic back, neck, and leg pain. Id. at 176, 204–05. During
numerous ALJ hearings and in his submissions to the SSA, Newell described the
scope of his ability to function, perform daily tasks, and travel outside of his home.
See, e.g., id. at 1–44, 433–71, 472–542, 2019–51. On April 22, 2009, Newell
completed a function report in support of his application, in which he reported that
he could prepare his own meals, groom himself, clean, shop, do laundry, and pay
bills. Id. at 155–74. Newell testified that he is able to drive, travel outside the
home, walk a third of a mile, lift ten pounds, and stand for 10–15 minutes before his
back and neck begin to hurt. Id. at 2035, 2038–40, 2041–42.
2. Relevant Medical Evidence
a. Treatment History—Physical Impairments
i. Steven Jacobs, M.D.—Treating Neurologist
Dr. Steven Jacobs treated Newell for cervical spine issues and related neck
and arm pain from November 2004 to January 2005 after a motor vehicle accident.
Id. at 206–10. At his initial evaluation on November 22, 2004, Dr. Jacobs reported
that Newell had a decreased range of motion of the neck, but there were no focal
motor or sensory deficits. Id. at 208. After ordering an MRI of Newell’s cervical
spine, Dr. Jacobs found a herniated disc at C5-C6, but recommended therapy over
4
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surgery. Id. at 209. Dr. Jacobs saw Newell for a follow-up visit on January 25,
2005 and noted that he was “doing well with therapy.” Id. at 210.
ii. George Thompson, D.C.—Treating
Chiropractor
Dr. George Thompson intermittently treated Newell for his lower back pain
from 2009 through 2019. Id. at 1951–56, 2820–21. At an initial examination on
September 4, 2009, Dr. Thompson observed an altered gait resulting in a left limp, a
reduced range of motion of his lumbar spine with pain, and severe lumbar and
lumbo-sacral myospasm, and recommended a course of therapy. Id. at 1952. At a
follow-up appointment on December 17, 2014, Dr. Thompson reported that Newell
was experiencing mild, chronic lower back discomfort and neck spasms. Id. at 1953.
Dr. Thompson reported in February 2019 that Newell’s symptoms, which he
characterized as a “dull ache,” remained unchanged. Id. at 2820.
iii. Mark Medici, M.D.— Orthopedic Physician
Dr. Mark Medici treated Newell on January 28, 2014 for his lower back pain
and again on October 16, 2017 for right wrist pain. Id. at 2487–93. During the
January 2014 appointment, Newell reported that his lower back pain increased
with standing and walking and Dr. Medici suggested that he modify his activity and
initiate physical therapy. Id. at 2487–89. Newell presented with right wrist pain at
his appointment in October 2017 and reported that the pain worsened with
movement and heavy lifting. Id. at 2490. MRI results reflected a tear in the
ligament and cartilage in his right wrist as well as a possible sprain. Id. at 2492.
5
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b. Treatment History—Mental Impairments
i. Naeem Aftab, M.D.—Treating Psychiatrist
Dr. Naeem Aftab was Newell’s treating psychiatrist from 2009 to 2014 for his
generalized anxiety disorder and depression and prescribed him antidepressants.
Id. at 375–83, 895–98, 923–35. In 2010, Dr. Aftab noted in a summary letter that
Newell had been taking his medications and keeping his appointments, but he was
unable to work due to his condition. Id. at 280. Dr. Aftab’s handwritten treatment
notes are illegible and were never clarified despite the ALJ’s numerous requests for
Dr. Aftab to do so. Id. at 694–97, 704–05, 2357–60.
ii. Stephen Krieg, M.D.—Treating Psychiatrist
Dr. Stephen Krieg is Newell’s current psychiatrist, who has treated Newell
from December 2015 through at least April 2019. Id. at 2933–3067. During his
first appointment in December 2015, Newell reported a history of “intermittent
mild/moderate depression symptoms,” “mild depressive symptoms over the past
several months,” “mild social anxiety symptoms,” a “distant history with panic
attacks,” and stress related to his pizza delivery work because “sometimes he gets
lost.” Id. at 2057. Dr. Krieg noted that Newell had “mildly slow” speech, “mildly
impaired” attention and concentration, and “fair hygiene.” Id. at 3062. He
diagnosed Newell with major depression, “recurrent, mild,” generalized anxiety
disorder, adjustment disorder with mixed anxiety and depressed mood, and morbid
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obesity, and recommended he continue to take his current medications and meet
with his psychotherapist. Id. at 3063. 4
Newell met with Dr. Krieg eight times in 2016 and reported to him that his
depression and anxiety had been stable and improving. Id. at 3015–56. He stated
that he “ha[d] been enjoying life activities,” sleeping well at night, and had
“adequate energy throughout the day.” Id. at 3015, 3020, 3025, 3030, 3035, 3040,
3045, 3051. Dr. Krieg continued Newell on the same medications but decreased the
dosage of Remeron twice during 2016. Id. at 3018, 3038. Dr. Krieg reported on
September 30, 2016 and November 11, 2016 that Newell had stopped working. Id.
at 3020, 3025. However, he reported on December 16, 2016 that Newell continued
to work as a pizza delivery driver for a restaurant, though he was apparently not
paid, but instead received three meals for each day that he worked. Id. at 3015.
Over the course of six appointments in 2017, Newell’s depression and anxiety
symptoms continued to improve. Id. at 2985–3014. Dr. Krieg reported on March
27, 2017 and May 4, 2017 that Newell was not currently working at that time. Id.
at 3000, 3005. However, Newell reported to Dr. Krieg on July 6, 2017 that he had
resumed work as a volunteer two days per week at his friend’s store for which his
friend “supplies lunch for him whenever he works.” Id. at 2995.
Newell’s medications include Lexapro and Remeron for anxiety and depression,
Wellbutrin XL for depression, Gabapentin for increased mood stabilization and
anxiety, and Abilify for increased mood stabilization and adjunctive depression
treatment. Id. at 3063.
4
7
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At a February 9, 2018 visit with Dr. Krieg, Newell reported “mildly
worsening depressive symptoms” and stated that he sometimes “feel[s] more
lonely.” Id. at 2979. During this visit, Newell also noted that he was volunteering
twice per month. Id. at 2979. On March 27, 2018, Dr. Krieg observed “worsening
depressive symptoms,” “decreased energy/motivation,” “emotional eating behaviors,”
and anhedonia, and modified Newell’s original diagnosis to state: “Depression,
major, recurrent, moderate.” Id. at 2974, 2976. By June 2018, however, Newell
reported he was “doing well” and denied any symptoms of depression, and Dr. Krieg
adjusted his diagnosis back to “[d]epression, major, recurrent, mild.” Id. at 2967,
2970. Newell reported that his medications, which included Lexapro, Wellbutrin,
Abilify, Remeron, and Gabapentin, had been beneficial in managing his anxiety and
depression symptoms as well as his insomnia. Id. at 2967. Newell’s symptoms
improved with continued use of medication at his following three appointments in
2018. Id. at 2947–66.
Newell met with Dr. Krieg on February 15 and April 1, 2019 and reported
having recent mild generalized anxiety symptoms, mild benefits in decreasing his
“breakthrough” anxiety symptoms from his hydroxyzine PRN medication, and that
his depressive symptoms had been “well-controlled.” Id. at 2933, 2940.
Additionally, Newell reported to Dr. Krieg on April 1, 2019 that he continued to
volunteer at a food pantry twice per month. Id. at 2933.
iii. Denise Morales, LMSW—Therapist
Denise Morales, a Licensed Master Social Worker (“LMSW”), provided Newell
with behavioral health counseling on two occasions in August 2009 at The Greater
8
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Hudson Valley Family Health Center Inc. Id. at 281–93. During the first visit on
August 20, 2009, Newell reported that he often had panic attacks and worried about
getting medication for his “nerves.” Id. at 282. He also described feelings of
depression and reported that he was not working at the time, living in a group
residence, and had “friends he associate[d] with.” Id. Morales noted that his
reported symptoms were consistent with a diagnosis of depressive disorder and
anxiety disorder. Id.
During the second visit on August 29, 2009, Morales provided supportive
counseling to address the root causes of his anxiety and noted that Newell “had
difficulty understanding the connection between negative thinking, worrying and
anxiety” and “often bec[ame] anxious as he is constantly thinking about what he
will be doing in the future.” Id. at 281.
iv. Barry Bachenheimer, CSW—Social Worker
Barry Bachenheimer, a social worker at New Visions Psychotherapy and
Counseling Service, treated Newell for his depression on a weekly basis from
September 2009 to September 2010, July 2013 to November 2014, and January
2017 to March 2019. Id. at 358–70, 1136–49, 2524–34.
Newell presented with depression and depressive symptoms to Bachenheimer
in September 2009 after Newell’s mother passed away. Id. at 358–59. From
September 2009 to September 2010, Bachenheimer noted that both he and Newell
thought that the medications seemed to be helping Newell manage his depression
and anxiety symptoms. Id. at 363–64, 366–67. Bachenheimer reported to the SSA
on April 30, 2010 that Newell had difficulty returning to work and that he “d[id] not
9
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feel he c[ould] return.” Id. at 358. Newell also subsequently conveyed to
Bachenheimer in September 2010 that he felt he could not work because he was
depressed over his mother’s death. Id. at 370.
In most sessions during the period from 2009 to 2018, Bachenheimer
observed that Newell seemed to be doing better with each appointment and that he
was managing his symptoms and treating his depression well, although he still
occasionally suffered from depressive episodes. See, e.g., id. at 363, 365, 1138, 1141,
2529, 2532. In 2013, Bachenheimer noted twice that Newell had poor hygiene and
only washed his clothes once a month. Id. at 1138–39. From 2017 to 2018,
Bachenheimer observed that Newell’s anxiety and depressive symptoms had
“definitely diminished.” Id. at 2532. According to Bachenheimer’s notes on
November 19, 2018, Newell worked at the religious store his landlord owned and
disclosed that “he ha[d]n’t put in as many hours as [his landlord] would like.” Id. at
2531. Newell and Bachenheimer discussed Newell’s inability to “follow-through”
during this session and he agreed to work on this issue. Id. Bachenheimer also
noted that while working at the religious bookstore, Newell did not fully understand
how to operate an “iPad which ha[d] some kind of financial tool attached to it.” Id.
at 2532.
c. Opinion Evidence
i. George Thompson, D.C.—Treating
Chiropractor
On August 7, 2009, Dr. Thompson completed a medical source statement of
Newell’s ability to do physical work-related activities. Id. at 254–59. In that
10
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statement, Dr. Thompson reported that Newell could lift and carry up to 10 pounds
frequently and 20 pounds occasionally, but never more than 20 pounds, and could
sit, stand, or walk for one hour without interruption and for a total of one hour
during an eight-hour workday. Id. at 254–55. Additionally, Dr. Thompson opined
that Newell could occasionally reach, handle, finger, feel, push, pull, operate foot
controls, crouch, crawl, kneel, stoop, climb stairs and ramps, and could tolerate
exposure to humidity and wetness, extreme heat and cold, and vibrations. Id. at
256–58. Dr. Thompson also noted in the medical source statement that Newell
could never climb ladders or scaffolds, balance, or move mechanical parts and that
he could not travel without a companion for assistance or use standard public
transportation. Id. at 257–59. With respect to daily activities, Dr. Thompson found
Newell could perform activities like shopping, prepare and feed himself, and care for
his personal hygiene. Id. at 259.
ii. Rita Figueroa, M.D.—Consultative Orthopedic
Examiner
On January 19, 2015, Dr. Rita Figueroa, a consultative orthopedic examiner,
conducted an orthopedic examination of Newell. Id. at 1173–82. Dr. Figueroa
diagnosed Newell with bilateral knee arthritis, chronic lower back pain, and
bilateral carpal tunnel syndrome. Id. at 1175. Dr. Figueroa also opined that
Newell had a “moderate limitation for activities requiring repetitive kneeling and
squatting due to arthritis in the knees,” but “no limitations for repetitive bending,
lifting, carrying, walking or standing” based on her evaluation. Id.
11
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On that same day, Dr. Figueroa completed a medical source statement and
reported that Newell was able to frequently lift up to, but never more than, 50
pounds; carry up to 20 pounds occasionally and 21 to 50 pounds frequently; stand
and walk for two hours total in an eight-hour workday, and sit for four hours total
in an eight-hour workday. Id. at 1176–77. Dr. Figueroa also noted that Newell did
not require the use of a cane to ambulate and that he was able to tolerate occasional
exposure to unprotected heights and moving mechanical parts as well as frequent
exposure to dust, odors, fumes, and pulmonary irritants. Id. at 1177–80.
iii. George Adams, M.D.—Consultative Internal
Medicine Examiner
Dr. George Adams conducted an internal medicine examination on May 21,
2009. Id. at 226–31. Dr. Adams found that Newell could “walk on heels and toes
without difficulty,” had a normal stance, and was “able to rise from a chair without
difficulty.” Id. at 227. He also noted that Newell could cook, clean, do laundry,
shop, shower, and dress himself. Id. at 227. Newell had full range of motion of his
shoulders, elbows, forearms, wrists, hips, knees, ankles with full strength in his
upper and lower extremities. Id. at 228. Dr. Adams diagnosed Newell with general
depression and adjustment disorder, mild mental retardation, degenerative joint
disease in both knees, and bilateral carpal tunnel syndrome, and opined that he had
“no physical limitation.” Id. at 229.
iv. Naeem Aftab, M.D.—Treating Psychiatrist
In a letter dated April 20, 2010, Dr. Aftab stated that Newell was “unable to
work due to his psychiatric condition.” Id. at 280. Dr. Aftab also submitted a
12
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medical source statement dated September 23, 2010, in which he reported that
Newell’s impairment did not affect his ability to understand, remember, or carry out
instructions. Id. at 371. He also noted that Newell had “marked” limitations in his
ability to interact appropriately with supervisors, co-workers, and the public as well
as respond to changes in a routine work setting. Id. at 372.
Dr. Aftab also completed a Mental Residual Functional Capacity Statement
dated July 31, 2013. Id. at 895–98. Dr. Aftab found that Newell was unable to
understand, remember, and carry out detailed instructions, travel in unfamiliar
places, or use public transportation for 10% of an eight-hour workday; nor could he
maintain attention and concentration for extended periods of time, perform
activities within a schedule, maintain regular attendance, work in coordination
with others without being distracted by them, respond appropriately to changes in
the work setting, set realistic goals, get along with coworkers or peers, accept
instructions and respond appropriately to criticism from supervisors, or complete a
normal workday or workweek without interruptions from psychologically-based
symptoms for 5% of an eight-hour workday. Id. at 895–98. Dr. Aftab opined that
Newell would be “off task” for 15% of an eight-hour workday, absent more than six
days per month on average, and unable to complete an eight-hour workday more
than six days per month on average. Id. at 897. Dr. Aftab reported that Newell
would not be able to obtain and retain work in a competitive work environment due
to his impairments. Id. at 898.
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v. Barry Bachenheimer, CSW—Social Worker
By letter dated April 30, 2010, Bachenheimer reported that Newell “has had
difficulty returning to work” and Newell disclosed that he “does not feel he can
return” but “is hopeful that if he goes on disability, he can become more
independent once again.” AR at 358.
vi. Leslie Helprin, Ph.D.—Consultative
Psychological Examiner
On May 21, 2009, Dr. Leslie Helprin, a licensed psychologist, conducted an
evaluation of Newell. Id. at 222–25. Dr. Helprin noted that Newell was
cooperative; his social skills, appearance, and speech were adequate; and his
thought processes, attention, and concentration were coherent and intact. Id. at
223. Dr. Helprin opined that Newell had no limitations in his ability to understand
and follow simple instructions and directions, perform rote tasks and some complex
tasks independently, relate adequately with others, maintain attention and
concentration, maintain a regular schedule, make appropriate simple decisions, or
deal appropriately with stress. Id. at 224. Dr. Helprin recommended that Newell
undergo medical and orthopedic evaluation to determine if his medical conditions
preclude him from all work. Id. at 225.
Dr. Helprin also conducted a second evaluation as well as an intelligence
evaluation on January 19, 2015. Id. at 1123–34. In her evaluation, Dr. Helprin
opined that Newell had no limitations in his ability to maintain a regular schedule,
make appropriate, simple decisions, relate adequately with others, and deal
appropriately with stress. Id. at 1125. However, Dr. Helprin found moderate
14
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limitations in his ability to understand and follow simple instructions, complete
simple and complex tasks independently, and learn new, simple tasks; and marked
limitations in his ability to maintain attention and concentration due to cognitive
limitations. Id. Again, Dr. Helprin recommended that Newell undergo medical
evaluation to determine if his impairments preclude him from all work. Id. at 1126.
Based on her intelligence evaluation, Dr. Helprin reported that Newell had a
Full Scale IQ of 63 and was “functioning cognitively overall in the deficient range.”
Id. at 1129. Her opinion as to Newell’s functional limitations remained the same as
her mental status evaluation. Id. at 1129–30.
vii.
Leslie Fine, M.D.—Reviewing
Psychiatrist
Dr. Leslie Fine testified as a reviewing psychiatrist at the September 24,
2010 hearing that Newell “could do simple and repetitive work.” Id. at 31.
Additionally, Dr. Fine opined that Newell had mild limitations in his daily living
activities, and moderate limitations in socialization, concentration, persistence, and
pace. Id. at 31–32.
viii.
Z. Mata, M.D.—Reviewing Psychiatrist
On June 3, 2009, Dr. Z. Mata submitted a mental residual functional capacity
assessment based on her review of Newell’s medical evidence and treatment
records. Id. at 246–49. Dr. Mata reported that Newell had no significant
limitations in the categories of “understanding and memory,” “sustained
concentration and persistence,” “social interaction,” and “adaptation” except that he
had moderate limitations in his ability to understand, remember, and carry out
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detailed instructions and set realistic goals or make plans independently of others.
Id. at 246–47. Dr. Mata also opined that Newell “would be capable of following and
understanding simple rote tasks and complex tasks . . . [and] performing at least
simple work.” Id. at 248.
3. ALJ Hearing
Represented by counsel, Newell testified in-person in White Plains, New York
before ALJ Gonzalez on July 11, 2019. AR at 2019–51. Testimony was also taken
from Vocational Expert (“VE”) Ray Burger. Id. 5
Newell testified to the jobs he held prior to his disability onset date of
December 31, 2007, which included positions as a general hardware salesperson
and maintenance person, a salesclerk/cashier, and a fast-food worker. Id. at 2026–
32. After his disability onset date, Newell helped out at a pizza place (as a delivery
driver), his landlord’s religious bookstore, and a soup kitchen. Id. at 2033–36.
Newell stated that he was paid with free meals while working as a delivery driver,
id. at 2033, and he received free rent in exchange for his work at his landlord’s
religious bookstore, id. at 2035–36. Newell also testified that he “messed up on the
register most of the time” while working at the bookstore and did not understand
how to work the credit card function on the cash register. Id. at 2034, 2040–41.
Newell testified that he was living with friends at the time of his hearing. Id.
at 2034. Prior to that living arrangement, he lived alone in an apartment above his
While the hearing transcript refers to the vocational expert as “Berger,” id. at
2019, the correct spelling of his name, according to his résumé, is Burger. AR at
2363.
5
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landlord’s bookstore for about a year. Id. at 2034–36. Newell also testified that he
had a car, was able to drive, received a pension from his prior job at Bradley’s
($109/month), and received food stamps. Id. at 2035.
Newell also answered questions regarding his recent knee replacement
surgeries and his current physical limitations. Id. at 2036–43. Newell stated that
he underwent two knee replacement surgeries due to arthritis in both knees (his
left knee was operated on September 1, 2017 and his right knee was operated on
April 13, 2018). Id. at 2036. He stated that he believed his weight (around 350
pounds) impacted his ability to get around, move, get up and down, sit, walk, lift,
and carry because his weight causes him back pain. Id. at 2037. Newell testified
that he could likely lift and carry up to 10 pounds and stand for 10 to 15 minutes
before his back and neck start to hurt, but could not walk a city block without
stopping due to his back pain and breathlessness. Id. at 2039, 2041–43.
VE Burger testified next. Burger opined that a hypothetical person with
Newell’s age, education, and work history could engage in a full range of light
exertional work, understand, remember, and carry out simple work, adapt to
routine workplace changes, occasionally climb stairs, crouch, stoop, and kneel, but
must avoid exposure to dust, fumes, and noxious gases, and could not work at
unprotected heights or climb ladders, ropes and scaffolds, and would be able to
perform work as a fast-food worker and a cashier. Id. at 2045–46. Further, Burger
testified that a person with the ability to engage in a full range of sedentary
exertional work along with the same above-listed limitations could not perform any
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of Newell’s past work, but could work as a food order clerk, a document clerk, or an
inspector. Id. at 2047. When questioned by Newell’s counsel, Burger stated that a
person with difficulty understanding instructions as well as attention and
concentration limitations could not perform any of the above-listed jobs. Id. at
2048. Additionally, Burger testified that a person unable to operate a cash register
would not be able to perform jobs as a cashier or fast-food worker, but that would
not preclude that person from all employment opportunities. Id. at 2048–50.
II.
DISCUSSION
A. Legal Standards
1. Judicial Review of Commissioner’s Determinations
An individual may obtain judicial review of a final decision of the
Commissioner in the “district court of the United States for the judicial district in
which the plaintiff resides.” 42 U.S.C. § 405(g). The district court must determine
whether the Commissioner’s final decision applied the correct legal standards and
whether it is supported by substantial evidence. Butts v. Barnhart, 388 F.3d 377,
384 (2d Cir. 2004). “Substantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks and alterations
omitted); see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (“under the
substantial-evidence standard, a court looks to an existing administrative record
and asks whether it contains ‘sufficien[t] evidence’ to support the agency’s factual
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determinations . . . whatever the meaning of ‘substantial’ in other contexts, the
threshold for such evidentiary sufficiency is not high”).
The substantial evidence standard is a “very deferential standard of review.”
Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012). The Court “must be
careful not to substitute its own judgment for that of the Commissioner, even if it
might justifiably have reached a different result upon a de novo review.” DeJesus v.
Astrue, 762 F. Supp. 2d 673, 683 (S.D.N.Y. 2011) (quoting Jones v. Sullivan, 949
F.2d 57, 59 (2d Cir. 1991)) (internal quotation marks and alterations omitted).
“[O]nce an ALJ finds facts, [a court] can reject those facts ‘only if a reasonable
factfinder would have to conclude otherwise.’” Brault, 683 F.3d at 448 (quoting
Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)) (emphasis omitted).
In weighing whether substantial evidence exists to support the
Commissioner’s decision, “the reviewing court is required to examine the entire
record, including contradictory evidence and evidence from which conflicting
inferences can be drawn.” Selian, 708 F.3d at 417 (quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983)). On the basis of this review, the court may “enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without
remanding . . . for a rehearing.” 42 U.S.C. § 405(g).
In certain circumstances, the court may remand a case solely for the
calculation of benefits, rather than for further administrative proceedings. “In . . .
situations[ ] where this Court has had no apparent basis to conclude that a more
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complete record might support the Commissioner’s decision, [the court has] opted
simply to remand for a calculation of benefits.” Michaels v. Colvin, 621 F. App’x 35,
38–39 (2d Cir. 2015) (summary order) (quoting Rosa v. Callahan, 168 F.3d 72, 83
(2d Cir. 1999)) (internal quotation marks omitted). The court may remand solely for
the calculation of benefits when “the records provide[ ] persuasive evidence of total
disability that render[s] any further proceedings pointless.” Williams v. Apfel, 204
F.3d 48, 50 (2d Cir. 1999). However, “[w]hen there are gaps in the administrative
record or the ALJ has applied an improper legal standard, [the court has], on
numerous occasions, remanded to the [Commissioner] for further development of
the evidence.” Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (quoting Parker v.
Harris, 626 F.2d 225, 235 (2d Cir. 1980)) (alteration in original).
2. Commissioner’s Determination of Disability
Under the Social Security Act, “disability” is defined as the “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A). Physical
or mental impairments must be “of such severity that [the claimant] is not only
unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
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In assessing a claimant’s impairments and determining whether they meet
the statutory definition of disability, the Commissioner “must make a thorough
inquiry into the claimant’s condition and must be mindful that ‘the Social Security
Act is a remedial statute, to be broadly construed and liberally applied.’” Mongeur,
722 F.2d at 1037 (quoting Gold v. Sec’y of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972)).
Specifically, the Commissioner’s decision must take into account factors such as:
“(1) the objective medical facts; (2) diagnoses or medical opinions based on such
facts; (3) subjective evidence of pain or disability testified to by the claimant or
others; and (4) the claimant’s educational background, age, and work experience.”
Id. (citations omitted).
a. Five-Step Inquiry
“The Social Security Administration has outlined a ‘five-step, sequential
evaluation process’ to determine whether a claimant is disabled[.]” Estrella v.
Berryhill, 925 F.3d 90, 94 (2d Cir. 2019) (citations omitted); 20 C.F.R.
§ 404.1520(a)(4). First, the Commissioner must establish whether the claimant is
presently employed. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is unemployed, at
the second step the Commissioner determines whether the claimant has a “severe”
impairment restricting her ability to work. 20 C.F.R. § 404.1520(a)(4)(ii). If the
claimant has such an impairment, the Commissioner moves to the third step and
considers whether the medical severity of the impairment “meets or equals” a
listing in Appendix One of Subpart P of the regulations. 20 C.F.R.
§ 404.1520(a)(4)(iii). If so, the claimant is considered disabled. Id.; 20 C.F.R.
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§ 404.1520(d). If not, the Commissioner continues to the fourth step and
determines whether the claimant has the residual functional capacity (“RFC”) to
perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). Finally, if the
claimant does not have the RFC to perform past relevant work, the Commissioner
completes the fifth step and ascertains whether the claimant possesses the ability to
perform any other work. 20 C.F.R. § 404.1520(a)(4)(v).
The claimant has the burden at the first four steps. Burgess v. Astrue, 537
F.3d 117, 128 (2d Cir. 2008). If the claimant is successful, the burden shifts to the
Commissioner at the fifth and final step, where the Commissioner must establish
that the claimant has the ability to perform some work in the national
economy. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).
b. Duty to Develop the Record
“Social Security proceedings are inquisitorial rather than adversarial.” Sims
v. Apfel, 530 U.S. 103, 110–11 (2000). Consequently, “the social security ALJ,
unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop
the record in light of the essentially non-adversarial nature of a benefits
proceeding.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation
marks omitted). As part of this duty, the ALJ must “investigate the facts and
develop the arguments both for and against granting benefits.” Sims, 530 U.S. at
111. Specifically, under the applicable regulations, the ALJ is required to develop a
claimant’s complete medical history. Pratts, 94 F.3d at 37 (citing 20 C.F.R. §§
404.1512(d)–(f)). This responsibility “encompasses not only the duty to obtain a
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claimant’s medical records and reports but also the duty to question the claimant
adequately about any subjective complaints and the impact of the claimant’s
impairments on the claimant’s functional capacity.” Pena v. Astrue, No. 07-CV11099 (GWG), 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008) (citations omitted).
Whether the ALJ has satisfied this duty to develop the record is a threshold
question. Before determining whether the Commissioner’s final decision is
supported by substantial evidence under 42 U.S.C. § 405(g), “the court must first be
satisfied that the ALJ provided plaintiff with ‘a full hearing under the Secretary’s
regulations’ and also fully and completely developed the administrative
record.” Scott v. Astrue, No. 09-CV-3999 (KAM) (RLM), 2010 WL 2736879, at *12
(E.D.N.Y. July 9, 2010) (quoting Echevarria v. Sec’y of Health & Human Servs., 685
F.2d 751, 755 (2d Cir. 1982)); see also Rodriguez v. Barnhart, No. 02-CV-5782 (FB),
2003 WL 22709204, at *3 (E.D.N.Y. Nov. 7, 2003) (“The responsibility of an ALJ to
fully develop the record is a bedrock principle of Social Security law.”) (citing Brown
v. Apfel, 174 F.3d 59 (2d Cir. 1999)). The ALJ must develop the record even where
the claimant has legal counsel. See, e.g., Perez v. Chater, 77 F.3d 41, 47 (2d Cir.
1996). Remand is appropriate where this duty is not discharged. See, e.g., Moran,
569 F.3d at 114–15 (“We vacate not because the ALJ’s decision was not supported
by substantial evidence but because the ALJ should have developed a more
comprehensive record before making his decision.”).
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c. Treating Physician’s Rule
“Regardless of its source, the ALJ must evaluate every medical opinion in
determining whether a claimant is disabled under the [Social Security] Act.” Pena
ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y.
Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d)) (internal quotation
marks omitted). 6 A treating physician’s opinion is given controlling weight,
provided the opinion as to the nature and severity of an impairment “is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the] case record.” 20
C.F.R. §§ 404.1527(c)(2); 416.927(d)(2). The regulations define a treating physician
as the claimant’s “own physician, psychologist, or other acceptable medical source
who provides [the claimant] . . . with medical treatment or evaluation and who has,
or has had, an ongoing treatment relationship with [the claimant].” 20 C.F.R.
§ 404.1502. Deference to such medical providers is appropriate because they “are
likely to be the medical professionals most able to provide a detailed, longitudinal
picture of [the] medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical evidence alone
The 2017 revisions to the applicable regulations included modifying 20 C.F.R. §
404.1527 to clarify and add definitions for how to evaluate opinion evidence for
claims filed before March 27, 2017. See Revisions to Rules Regarding the
Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5869–70 (Jan. 18, 2017).
Accordingly, this opinion applies the regulations that were in effect when Newell’s
claims were filed with the added clarifications provided in the 2017 revisions.
6
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or from reports of individual examinations.” 20 C.F.R. §§ 404.1527(c)(2);
416.927(d)(2).
A treating physician’s opinion is not always controlling. For example, a legal
conclusion “that the claimant is ‘disabled’ or ‘unable to work’ is not controlling,”
because such opinions are reserved for the Commissioner. Guzman v. Astrue, No.
09-CV-3928 (PKC), 2011 WL 666194, at *10 (S.D.N.Y. Feb. 4, 2011) (citing 20 C.F.R.
§§ 404.1527(e)(1), 416.927(e)(1)); accord Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999) (“A treating physician’s statement that the claimant is disabled cannot itself
be determinative.”). Additionally, where “the treating physician issued opinions
that [were] not consistent with other substantial evidence in the record, such as the
opinion of other medical experts, the treating physician’s opinion is not afforded
controlling weight.” Pena ex rel. E.R., 2013 WL 1210932, at *15 (quoting Halloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)) (internal quotation marks omitted)
(alteration in original); see also Snell, 177 F.3d at 133 (“[T]he less consistent [the
treating physician’s] opinion is with the record as a whole, the less weight it will be
given.”).
Importantly, however, “[t]o the extent that [the] record is unclear, the
Commissioner has an affirmative duty to ‘fill any clear gaps in the administrative
record’ before rejecting a treating physician’s diagnosis.” Selian, 708 F.3d at 420
(quoting Burgess, 537 F.3d at 129); see Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998) (discussing ALJ’s duty to seek additional information from treating physician
if clinical findings are inadequate). As a result, “the ‘treating physician rule’ is
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inextricably linked to a broader duty to develop the record. Proper application of
the rule ensures that the claimant’s record is comprehensive, including all relevant
treating physician diagnoses and opinions, and requires the ALJ to explain clearly
how these opinions relate to the final determination.” Lacava v. Astrue, No. 11-CV7727 (WHP) (SN), 2012 WL 6621731, at *13 (S.D.N.Y. Nov. 27, 2012) (“In this
Circuit, the [treating physician] rule is robust.”), adopted by 2012 WL 6621722 (Dec.
19, 2012).
To determine how much weight a treating physician’s opinion should carry,
the ALJ must consider the so-called “Burgess factors” outlined by the Second
Circuit:
(i) the frequency of examination and the length, nature
and extent of the treatment relationship; (ii) the evidence
in support of the treating physician’s opinion; (iii) the
consistency of the opinion with the record as a whole; (iv)
whether the opinion is from a specialist; and (v) other
factors brought to the Social Security Administration’s
attention that tend to support or contradict the opinion.
Halloran, 362 F.3d at 32 (citation omitted); see also Burgess, 537 F.3d at 129; 20
C.F.R. § 404.1527(c)(2). This determination is a two-step process. “First, the ALJ
must decide whether the opinion is entitled to controlling weight.” Estrella, 925
F.3d at 95. Second, if, based on these considerations, the ALJ declines to give
controlling weight to the treating physician’s opinion, the ALJ must nonetheless
“comprehensively set forth reasons for the weight” ultimately assigned to the
treating source. Halloran, 362 F.3d at 33; accord Snell, 177 F.3d at 133
(responsibility of determining weight to be afforded does not “exempt administrative
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decisionmakers from their obligation . . . to explain why a treating physician’s
opinions are not being credited”) (referring to Schaal, 134 F.3d at 505 and 20 C.F.R.
§ 404.1527(d)(2)). If the ALJ decides the opinion is not entitled to controlling
weight, “[a]n ALJ’s failure to ‘explicitly’ apply these ‘Burgess factors’ when
[ultimately] assigning weight at step two is a procedural error.” Estrella, 925 F.3d
at 96 (quoting Selian, 708 F.3d at 419–20). The regulations require that the SSA
“always give good reasons in [its] notice of determination or decision for the weight”
given to the treating physician. Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998) (alteration in original) (citations omitted). Indeed, “[c]ourts have not
hesitate[d] to remand [cases] when the Commissioner has not provided good
reasons.” Pena ex rel. E.R., 2013 WL 1210932, at *15 (quoting Halloran, 362 F.3d
at 33) (second and third alteration in original) (internal quotation marks omitted).
d. Claimant’s Credibility
An ALJ’s credibility finding as to the claimant’s disability is entitled to
deference by a reviewing court. Osorio v. Barnhart, No. 04-CV-7515 (DLC), 2006
WL 1464193, at *6 (S.D.N.Y. May 30, 2006). “[A]s with any finding of fact, ‘[i]f the
Secretary’s findings are supported by substantial evidence, the court must uphold
the ALJ’s decision to discount a claimant’s subjective complaints.” Id. (quoting
Aponte v. Sec’y of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)).
Still, an ALJ’s finding of credibility “must . . . be set forth with sufficient specificity
to permit intelligible plenary review of the record.” Pena, 2008 WL 5111317, at *10
(internal quotation marks omitted) (quoting Williams v. Bowen, 859 F.2d 255, 260–
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61 (2d Cir. 1988)). “The ALJ must make this [credibility] determination ‘in light of
the objective medical evidence and other evidence regarding the true extent of the
alleged symptoms.’” Id. (quoting Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.
1984)).
SSA regulations provide that statements of subjective pain and other
symptoms alone cannot establish a disability. Genier v. Astrue, 606 F.3d 46, 49 (2d
Cir. 2010) (citing 20 C.F.R. § 404.1529(a)). Accordingly, the ALJ must follow a twostep framework for evaluating allegations of pain and other limitations. Id. First,
the ALJ considers whether the claimant suffers from a “medically determinable
impairment that could reasonably be expected to produce” the symptoms alleged.
Id. (citing 20 C.F.R. § 404.1529(b)). “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. (citing 20 C.F.R. § 404.1529(a)).
Among the kinds of evidence that the ALJ must consider (in addition to objective
medical evidence) are:
1. The individual’s daily activities; 2. [t]he location,
duration, frequency, and intensity of the individual’s pain
or other symptoms; 3. [f]actors that precipitate and
aggravate the symptoms; 4. [t]he type, dosage,
effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other
symptoms; 5. [t]reatment, other than medication, the
individual receives or has received for relief of pain or
other symptoms; 6. [a]ny measures other than treatment
the individual uses or has used to relieve pain or other
symptoms (e.g., lying flat on his back, standing for 15 to
20 minutes every hour, or sleeping on a board); and 7.
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[a]ny other factors concerning the individual’s functional
limitations and restrictions due to pain or other
symptoms.
Pena, 2008 WL 5111317, at *11 (citing SSR 96-7p, 1996 WL 374186, at *3 (SSA July
2, 1996)).
B. The Court’s 2017 Decision Remanding for Further
Administrative Proceedings
By Order dated March 31, 2017, Judge Castel remanded this case for further
administrative proceedings that have now given rise to the ALJ decision at issue
here. In his Order, Judge Castel concluded that the ALJ’s finding that Newell’s
2015 IQ evaluation was invalid—and, therefore, he did not satisfy the criteria under
Listing 12.05C—was not supported by substantial evidence. Newell v. Colvin, No.
15-CV-7095 (PKC) (DF), 2017 WL 1200911, at *5 (S.D.N.Y. Mar. 31, 2017).
However, because the ALJ did not conduct an independent evaluation of the other
requirements under Listing 12.05C, the Court could not “evaluate whether his
decision as to the application of Listing 12.05C was supported by substantial
evidence.” Id.
Judge Castel also concluded that substantial evidence supported the ALJ’s
decision not to afford controlling weight to Dr. Aftab’s April 20, 2010 and September
23, 2010 opinions, but that the ALJ failed to properly consider Dr. Aftab’s 2013
opinion for three reasons: (1) the ALJ accorded more weight to the opinion of Dr.
Fine than to Dr. Aftab even though Dr. Fine did not examine Newell or review his
psychiatric records first-hand; (2) the ALJ failed to identify which portions of Dr.
Aftab’s 2013 statement conflicted with other mental health providers’ opinions; and
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(3) the ALJ failed to explain why Newell’s daily activities are inconsistent with Dr.
Aftab’s conclusions that Newell can “understand, remember and carry out simple
instructions and ‘[m]ake simple work-related decisions,’ but has difficulty with
detailed instructions, and ‘[m]aintain[ing] attention and concentration for extended
periods of time.’” Id. at *8. Finally, Judge Castel found that the ALJ’s adverse
credibility determination of Newell was supported by substantial evidence. Newell,
2017 WL 1200911, at *9; AR at 2099. Accordingly, Judge Castel instructed the ALJ
on remand to determine whether Newell’s condition meets the other requirements
of Listing 12.05C and to properly apply the treating physician rule as to Dr. Aftab’s
2013 opinion on remand. Id. at *9.
C. The ALJ’s Decision
Following Judge Castel’s Remand Order, the ALJ issued another decision
dated August 26, 2019, concluding that Newell was not disabled as defined by the
Social Security Act. AR at 1958–82. Following the five-step inquiry, at step one the
ALJ found that Newell has not been engaged in substantial gainful activity since
December 31, 2007, the alleged onset date of Newell’s impairments. Id. at 1965. At
step two, the ALJ found that Newell had severe impairments of depressive disorder,
anxiety disorder, intellectual disability, bilateral chondromalacia and degenerative
joint disease of the knees, status post bilateral knee replacements, degenerative disc
disease of the lumbar spine with lumbar spine radiculopathy, degenerative disc
disease of the cervical spine, left meralgia paresthetica, asthma, sleep apnea,
chronic kidney disease, and morbid obesity. Id. at 1965, 1967. The ALJ found the
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following conditions to be non-severe: right wrist derangement, right hand pain,
carpal tunnel syndrome, generalized joint pain, headaches, hypertension,
hyperlipidemia, edema, syncope, diarrhea, abdominal pain, gastroesophageal reflux
disease (“GERD”), benign prostatic hyperplasia, urinary frequency, dyspnea, history
of COPD, otalgia, sinusitis, dermatitis, cellulitis, shingles, herpes zoster, cataracts,
insomnia, sleep disturbance, fatigue, and vitamin deficiencies. Id. at 1967. The
ALJ noted that the non-severe conditions “do not impose more than minimal
limitations in the claimant’s ability to engage in basic work activities.” Id. In
reaching this conclusion, the ALJ considered the observations of Newell’s
consultative examiners, who concluded that Newell had “intact hand and finger
dexterity,” normal echocardiograms, and a good response to cataract surgery, and
was able “to prepare simple meals and sort, handle, and use paper files.” Id.
At step three, the ALJ found that Newell does not have an impairment or
combination of impairments that meets or medically equals the severity of Listing
1.02A, 1.04, 3.02, 3.03, 12.04, 12.05, 12.06, or 12.11. Id. at 1966–72. The ALJ
determined that Listing 1.02A was not met due to the evidence that Newell was
“capable of sustaining a reasonable walking pace over a sufficient distance because
he [was] able to carry out his activities of daily living.” Id. at 1968. Additionally,
the ALJ found that Listing 1.04 was not met because there was “no evidence of
nerve root compression with sensory and reflex loss along with positive straight-leg
raising tests” or “evidence of spinal arachnoiditis or lumbar spinal stenosis
resulting in an inability to ambulate effectively.” Id. The ALJ further determined
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that Listings 3.02 and 3.03 were not met because Newell’s laboratory results and
clinical evaluations “indicate pulmonary functioning at levels above those required
by the listings” and there was no evidence of exacerbations or complications as
required by the listings. Id.
The ALJ found that Newell’s mental impairments do not meet or medically
equal the criteria of Listings 12.04, 12.05, 12.06, or 12.11. Id. at 1966. Specifically,
the ALJ found that Newell’s impairments did not satisfy the paragraph B criteria in
those listings (as set out in 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(C))
as he only had a moderate limitation in understanding, remembering, or applying
information; a mild limitation in interacting with others; a moderate limitation in
concentrating, persisting, or maintaining pace; and a mild limitation in adapting
and managing oneself. Id. at 1966, 1969–70. The ALJ also determined that Newell
did not satisfy the paragraph C criteria because the evidence did not establish that
Newell would have only marginal adjustment. Id. at 1970–71. The ALJ specifically
analyzed Newell’s impairments under an old version of Listing 12.05C as directed
by Judge Castel, and determined that Newell did not suffer qualifying deficits in
adaptive functioning. Id. at 1972.
Prior to evaluating step four, the ALJ determined Newell’s Residual
Functional Capacity (“RFC”) as follows: Newell could “perform light work,”
“understand, remember, and carry out simple work and adapt to routine workplace
changes,” “lift and/or carry twenty pounds occasionally and ten pounds frequently,
stand and/or walk for six hours in an eight-hour workday, sit for six hours in an
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eight-hour workday[, and] . . . occasionally crouch, stoop, kneel, climb ramps and
stairs,” but could not “climb ladders, ropes, [or] scaffolds” and must avoid
“unprotected heights as well as concentrated exposure to dust, fumes, and noxious
gases.” Id. at 1972. In formulating this RFC, the ALJ evaluated Newell’s
allegations and testimony and determined that Newell’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however,
[his] statements concerning the intensity, persistence, and limiting effects of these
symptoms are not fully consistent with the medical evidence and other evidence in
the record.” Id. at 1973. The ALJ provided several reasons for this finding,
including that since the alleged disability onset date, Newell’s “chronic pain and
symptoms have generally responded well to conservative treatment modalities,
including medication management, activity and dietary modification, home
exercises, physical therapy, chiropractic care, injections, the use of braces, inhalers,
and [sic] CPAP machine, and specialist treatment with orthopedists,
pulmonologists, and nephrologists.” Id. Additionally, the ALJ concluded that
treatment notes demonstrated that Newell’s mental impairments “have generally
responded well to outpatient counseling and psychotropic medication management.”
Id. at 1974. Moreover, the ALJ observed that Newell’s testimony suggested that his
daily activities were not limited to the extent one would expect given his alleged
symptoms and limitations. Id.
The ALJ also summarized Newell’s treatment history and weighed the
opinions of medical sources to reach his RFC finding. Id. at 1974–80. The ALJ
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afforded “significant weight” to the opinions of consultative examiner Dr. Adams,
which noted that Newell had “no physical limitations,” due to his “expertise, his
physical examination of [Newell], and the relative consistency of his opinions with
the overall medical evidence.” Id. at 1976–77. However, the ALJ considered Dr.
Adams’ opinions in balance with the overall evidence, including subsequent records
submitted that were “more consistent with increased limitations with the passage of
time, including issues with the knee, neck, and back.” Id. at 1977.
The ALJ assigned “significant weight” to Dr. Helprin’s May 2009 opinion that
Newell had “no limitations in the ability to understand and follow simple
instructions and direction and perform rote tasks,” “relate adequately with others,
maintain attention and concentration, maintain a regular schedule, make
appropriate simple decisions, and deal appropriately with stress,” but did have
“limitations in his ability to perform some complex tasks independently.” Id. at
1976–77. In support of this weight assignment, the ALJ noted Dr. Helprin’s
“expertise, her mental status examination of [Newell], and the relative consistency
of her opinions with the overall medical evidence, including mental status
examination clinical findings.” Id. at 1977. Additionally, the ALJ afforded “some
weight” to Dr. Helprin’s January 2015 opinion that Newell had “moderate
limitations in the ability to understand and follow simple instructions, complete
simple and complex tasks independently, and learn new, simple tasks,” but gave
“very little” weight to Dr. Helprin’s finding that Newell had “marked limitations in
the ability to maintain attention and concentration due to cognitive difficulties”
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because it was “inconsistent with the evidence including her earlier opinions from
May 2009” and Dr. Krieg’s mental status exams, which did not establish any
marked or extreme limitations. Id. at 1979.
The ALJ assigned “significant weight” to Dr. Mata’s June 2009 opinions that
Newell had no significant limitations in his ability to remember locations and worklike procedures, understand and remember very short and simple instructions,
interact appropriately with the general public, and maintain attention and
concentration for extended periods; and moderate limitations in his ability to
understand, remember, and carry out detailed instructions, and “set realistic goals
or make plans independently of others.” Id. at 1976, 1978. The ALJ noted his
“expertise, his review of the [Newell’s] medical records, and the relative consistency
of his opinions with the overall evidence” as the basis for this weight determination.
Id. at 1978. However, the ALJ accorded “very little weight” to the portion of Dr.
Mata’s opinions that described Newell having “moderate difficulties in maintaining
social functioning” because Dr. Mata “did not identify any notable socialization
difficulties” in his RFC assessment and it was not consistent with the medical
evidence in the record or Newell’s work history after the alleged onset date. Id.
The ALJ gave “significant weight” to Dr. Fine’s testimony at the September
2010 hearing that Newell was “able to do simple work” because “it [was] generally
consistent with the overall evidence in the record,” including the treatment notes
from Bachenheimer and Dr. Krieg as well as Dr. Mata’s consultative opinions. Id.
1976, 1978.
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The ALJ assigned “little weight” to Dr. Figueroa’s January 2015 opinion that
Newell could “lift up to fifty pounds frequently and carry up to fifty pounds
occasionally, stand for two hours total in an eight-hour workday, walk for two hours
total in an eight-hour workday, and sit for four hours total in an eight-hour
workday.” Id. at 1976–78. In assigning little weight, the ALJ reasoned that her
opinion was “somewhat inconsistent with the balance of the evidence in the record,
including the [Newell’s] activities of daily living and Dr. Figueroa’s own opinions in
the same report.” Id. at 1978.
The ALJ also afforded “little weight” to Dr. Thompson’s August 2009 opinion
that Newell could lift and carry up to 20 pounds occasionally, sit, stand, or walk for
one hour without interruption or one hour in an eight-hour workday, “occasionally
reach, handle, finger, feel, push, pull, operate foot controls, crouch, crawl, and
tolerate exposure to humidity and wetness, extreme heat and cold, and vibrations,”
but could “never balance or be around moving mechanical parts.” Id. at 254–59,
1979. The ALJ reasoned that such extreme limitations were inconsistent with his
own subsequent opinions in the same report, the opinions of Drs. Adams and
Figueroa, and Newell’s reported activities of daily living. Id. at 1979.
The ALJ assigned “little weight” to all three of the opinions of treating
psychiatrist, Dr. Aftab, which included his April 2010 opinion that Newell was
“unable to work due to his psychiatric conditions”; his September 2010 opinion that
Newell “ha[d] no limitations in the ability to understand, remember, and carry out
simple and complex instructions and make judgments on simple and complex work-
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related decisions” but “‘marked’ limitations in the ability to interact appropriately
with co-workers, supervisors, and the public and respond appropriately to usual
work situations and to changes in a routine work setting”; and his July 2013
opinion that Newell was “not precluded for 15% or more of an eight-hour workday
for any specific mental function . . . [but was] precluded for 10% of an eight-hour
workday in the ability to understand, remember, and carry out detailed instructions
. . . and travel in unfamiliar places and use public transportation.” Id. at 1979–80.
The ALJ found Dr. Aftab’s 2010 opinion regarding Newell’s “marked limitations”
inconsistent with the record, including “ongoing work activity as well as appropriate
interactions with medical personnel during examinations,” the opinions of Drs.
Fine, Mata, and Helprin, and the mental status evaluations by Dr. Krieg. Id. The
ALJ opined that Dr. Aftab’s 2013 opinion was not supported by “consistent mental
status examination clinical findings” or any “adequate explanation or cited clinical
findings to support such significant limitations.” Id. 7
The ALJ gave “very little weight” to the April 2010 letter from social worker
Bachenheimer, which stated that Newell “had difficulty returning to work,” did not
“feel he c[ould] return” and was “hopeful that if he [went] on disability, he c[ould]
become more independent once again.” Id. at 1980 (citing id. at 358). The ALJ
found that this statement “appear[ed] to be attributed to the claimant’s self-
As noted in his decision, the ALJ requested clarification from Dr. Aftab of his
inconsistent mental examination findings and illegible treatment notes through
letters and phone calls on December 2014, June 2018, July 2018, October 2018, and
December 2018, but received no response. AR at 1980.
7
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reporting, and [was] not supported by any adequate explanation, cited clinical
findings, or any specific or appropriate function-by-function assessments of
[Newell’s] work-related abilities.” Id. at 1980.
The ALJ gave “very little weight” to the assessments of Jessica Ferraiolo,
P.A., and Rocco Bassora, M.D. from 2015 to 2016, which stated that Newell
remained disabled (id. at 3068–3181), as the assessments were vague and “d[id] not
provide any specific function-by-function assessments of [Newell’s] work-related
abilities.” Id. at 1980. Finally, the ALJ assigned “no weight” to the August 2014 VE
interrogatory because the report “ha[d] been superseded by the valid and wellsupported testimony” of VE Burger, who testified in person at the July 11, 2019
hearing. Id. 1980–81.
At step four, the ALJ found that Newell’s past relevant work as a fast-food
worker and cashier, but not as a janitor, did not exceed his RFC and therefore he
was capable of performing that work. Id. at 1981. Accordingly, the ALJ concluded
that Newell was not disabled from December 31, 2007 through the date of his
decision. Id.
D. Analysis
Newell contends that the ALJ decision should be reversed and remanded
solely for the calculation of benefits, or, in the alternative, for further
administrative proceedings for two reasons: (1) the ALJ violated the treating
physician rule, and (2) the ALJ improperly concluded that his impairments did not
meet the Listing 12.05C requirement. Pl. Mem. at 13–22. The Commissioner
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counters that the ALJ correctly applied the treating physician rule, properly found
that Newell did not meet or equal the criteria of any mental impairment listing, and
his RFC finding is supported by substantial evidence. Def. Mem. at 16–24.
1. The ALJ Did Not Properly Apply the Treating Physician
Rule
Newell argues that the ALJ improperly applied the treating physician rule by
failing to provide “specificity” when affording “little weight” to the opinion of his
treating psychiatrist, Dr. Aftab. Pl. Mem. at 20–22. Specifically, Newell contends
that the ALJ failed to identify which portions of Dr. Aftab’s 2013 report conflicted
with other consultative medical opinions or explain why he considered Newell’s
daily activities inconsistent with Dr. Aftab’s conclusions. Id. Newell also claims
that Dr. Aftab’s statements in the 2013 report are consistent with the record,
including Newell’s own testimony and Dr. Helprin’s 2009 and 2015 opinions. Id. at
21.
In response, the Commissioner contends that the ALJ provided the requisite
“good reasons” for assigning little weight to Dr. Aftab. Def. Mem. at 23–24.
Specifically, the Commissioner argues that the ALJ properly discounted Dr. Aftab’s
opinion because (1) his treatment notes lacked mental status examination findings;
(2) his September 2010 medical source statement was inconsistent with treatment
notes from Dr. Krieg, the consultative opinions of Drs. Helprin, Fine, and Mata, and
Newell’s daily work and activities; and (3) his 2013 medical source statement was
“unclear” and contradicted by Newell’s work-related activities. Id. at 23.
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It is undisputed that Dr. Aftab, who treated Newell from 2009 to 2014 on a
monthly basis for his psychiatric conditions, is Newell’s treating physician. AR at
375–83, 895, 923–35. In deciding to give less than controlling weight to Dr. Aftab’s
opinions, the ALJ was therefore required to explicitly consider the Burgess factors:
“(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of
medical evidence supporting the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and (4) whether the physician is a specialist.” Estrella,
925 F.3d at 95–96 (citation omitted); see also Burgess, 537 F.3d at 129. While the
Second Circuit “does not require ‘slavish recitation of each and every factor,’ the
ALJ’s ‘reasoning and adherence to the regulation’ still must be clear from his
opinion.” Cabrera v. Comm’r of Soc. Sec., No. 16-CV-4311 (AT) (JLC), 2017 WL
3686760, at *3 (S.D.N.Y. Aug. 25, 2017) (citing Atwater v. Astrue, 512 F. App’x. 67,
70 (2d Cir. 2013)). If the ALJ does not “explicitly” consider these factors, the case
must be remanded unless “a searching review of the record” assures the Court that
the ALJ applied “the substance of the treating physician rule.” Estrella, 925 F.3d at
95. Here, in giving Dr. Aftab’s opinions less-than-controlling weight, the ALJ failed
to weigh the following three Burgess factors in his analysis: (1) the frequency of
examination and the length, nature, and extent of the treatment relationship; (2)
the evidence in support of Dr. Aftab’s opinion; and (3) whether the opinion is from a
specialist.
First, the ALJ did not explicitly consider Dr. Aftab’s extensive length and
frequency of treatment with Newell, as required. See, e.g., Ramos v. Comm’r of Soc.
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Sec, No. 13-CV-3421 (KBF), 2015 WL 7288658, at *7 (S.D.N.Y. Nov. 16, 2015)
(remanding case in part because ALJ did not consider length of treating physician’s
treatment). Dr. Aftab was Newell’s treating psychiatrist from 2009 to 2014, met
with Newell on approximately a monthly basis, and provided five years of medical
records and treatment notes as well as two medical source statements to the SSA.
Pl. Mem. at 20; AR at 375–83, 895, 923–35. Dr. Aftab diagnosed and treated Newell
for his generalized anxiety disorder and depression, prescribed him
antidepressants, and managed his medication on a monthly basis. AR at 375–83,
895, 923–35. When evaluating mental impairments such as those at issue here, the
length of a psychiatrist’s treatment relationship with his or her patient is of
particular importance because mental disabilities are best diagnosed and observed
over time. See Rodriguez v. Astrue, No. 07-CV-534 (WHP) (MHD), 2009 WL 637154,
at *26 (S.D.N.Y. Mar. 9, 2009) (“The mandate of the treating physician rule to give
greater weight to the opinions of doctors who have a relationship with a plaintiff is
particularly important in the mental-health context.”); Santiago v. Barnhart, 441 F.
Supp. 2d 620, 629 (S.D.N.Y. 2006) (“The rule is even more relevant in the context of
mental disabilities, which by their nature are best diagnosed over time.”). The
ALJ’s failure to explicitly consider Dr. Aftab’s sustained observations of Newell’s
condition and his relative improvement or regression over five years of treatment, is
exacerbated by the fact that he relies instead on the opinions of one-time
consultative examiners and reviewing psychiatrists to undermine Dr. Aftab’s
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findings. 8 See AR at 1980; Estrella, 925 F.3d at 98 (opinion of a one-time
consultative examiner did not serve as a “good reason” for minimizing the opinion of
the treating source); Santiago, 441 F. Supp. 2d at 629 (“The Treating Physician
Rule recognizes that a physician who has a long history with a patient is better
positioned to evaluate the patient’s disability than a doctor who observes the
patient once for the purposes of a disability hearing.”).
Second, the ALJ did not explicitly consider the evidence in support of Dr.
Aftab’s 2013 opinion. In that opinion, Dr. Aftab found that Newell was precluded
for 5% of an eight-hour workday in his ability to maintain attention and
concentration for extended periods of time. Id. at 896. Consistent with this finding,
Dr. Helprin also found limitations in this functional category, assessing “marked”
limitations in Newell’s ability to maintain attention and concentration. Id. at
1125. 9 Moreover, Drs. Aftab and Helprin both opined that Newell had some
limitation in his ability to understand, remember, and carry out instructions. Id. at
Notably, although not explicitly referred to in Judge Castel’s March 31, 2017
opinion remanding this case for further administrative proceedings, Magistrate
Judge Freeman’s underlying Report and Recommendation specifically highlighted
the ALJ’s error in omitting discussion of this Burgess factor when she concluded
that the treating physician rule had been violated. Newell, 2017 WL 9538171, at
*33.
8
The ALJ assigned “very little weight” to this portion of Dr. Helprin’s 2015
assessment. AR at 1978–79. The ALJ reasoned that this portion of Dr. Helprin’s
assessment is inconsistent with the evidence, including her May 2009 opinion and
subsequent opinions, which found only moderate restrictions, as well as with Dr.
Krieg’s mental status exams, which did not document any marked or extreme
limitations. Id. The ALJ failed to consider the consistency of Dr. Helprin’s opinion
with that of Dr. Aftab’s 2013 opinion before according “very little weight” to this
specific portion of Dr. Helprin’s 2015 opinion.
9
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896 (impairments preclude ability to understand, remember, and carry out short
detailed instructions for 15% of an eight-hour workday); id. at 1125 (moderate
limitations in ability to follow and understand simple directions and instructions
due to cognitive limitations). Finally, both Drs. Aftab and Helprin concluded that
Newell had no limitations in making simple decisions or relating and interacting
appropriately with others. Id. at 896 (impairments do not preclude ability to make
simple work-related decisions and interact appropriately with the general public);
id. at 1125 (no limitations in his ability to make appropriate simple decisions, nor to
relate adequately with others). In making his weight determination, the ALJ
should have acknowledged that Dr. Helprin’s opinion corroborates Dr. Aftab’s 2013
findings, but instead he omitted any discussion of these consistent findings. See,
e.g., Correale-Englehart v. Astrue, 687 F. Supp. 2d 396, 430-31 (S.D.N.Y. 2010)
(requiring remand as ALJ failed to comply with treating physician rule by failing to
address evidence in support of treating doctors’ opinions).
Nor did the ALJ consider Newell’s own statements about his work-related
activities, which also corroborated Dr. Aftab’s findings that Newell was precluded
from 10% of an eight-hour workday in his ability to (1) understand, remember, and
carry out detailed instructions, and (2) travel in unfamiliar places or use public
transportation. See, e.g., id. at 2034, 2040–41 (Newell testifying he “messed up on
the register most of the time” and did not understand how to work the credit card
function on the cash register); id. at 2532 (Newell reporting to Bachenheimer that
he does not understand how to operate the “iPad which has some kind of financial
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tool attached to it”); id. at 2057 (Newell reporting to Dr. Krieg that he suffers from
stress related to his pizza delivery job because “sometimes he gets lost”). While the
ALJ may have found Newell not entirely credible, he should have acknowledged
this consistent testimony when determining what weight to afford to Dr. Aftab’s
2013 opinion. In sum, the ALJ failed to consider this Burgess factor by omitting any
reference to the evidence in the record supporting Dr. Aftab’s 2013 opinion.
Third, the ALJ also erred by not explicitly acknowledging Dr. Aftab’s
professional specialization. See, e.g., Craig v. Comm'r of Soc. Sec., 218 F. Supp. 3d
249, 266–67 (S.D.N.Y. Nov. 22, 2016) (ALJ's failure to consider factors such as
specialization in assessing weight afforded to treating physician's medical opinion
warranted remand); Saldin v. Colvin, No. 13-CV-4634 (ADS), 2014 WL 3828227, at
*13–14 (E.D.N.Y. Aug. 4, 2014) (ALJ erred by failing to consider relevant factors
including specialization of treating physician). Although the ALJ identified Dr.
Aftab as a psychiatrist twice, see AR at 1961–62, these passing references fall short
of meeting his obligation to explicitly consider this Burgess factor. See Denver v.
Berryhill, No. 19-CV-1312 (AJN) (KHP), 2020 WL 2832752, at *2 (S.D.N.Y. June 1,
2020) (finding that specialization in a certain field is a factor “that the ALJ must
give express consideration to in order to justify overriding the opinion of a treating
physician”). Accordingly, by failing to analyze three of the four Burgess factors
before giving Dr. Aftab’s 2013 opinion less-than-controlling weight, the ALJ violated
the treating physician rule.
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a. The ALJ Failed To Provide Good Reasons For
Assigning “Little Weight” to Dr. Aftab’s Opinion
Moreover, it cannot be said that the ALJ provided good reasons for his weight
determination of Dr. Aftab’s 2013 opinion. 10 See, e.g., Pines v. Colvin, No. 13-CV6850 (AJN), 2015 WL 1381524, at *3 (S.D.N.Y. Mar. 25, 2015) (“Due to the
importance of the treating physician rule, the Second Circuit has made clear that it
will ‘not hesitate to remand when the Commissioner has not provided good reasons
for the weight given to a treating physician’s opinion and it will continue remanding
when it encounters opinions from ALJ’s that do not comprehensively set forth
reasons for the weight assigned to a treating physician’s opinion.’”) (alterations
omitted) (quoting Halloran, 362 F.3d at 33); Snell, 177 F.3d at 133 (“Failure to
Judge Castel previously held in his 2017 decision that substantial evidence
supported the ALJ’s decision to accord less-than-controlling weight to his April and
September 2010 opinions due to internal inconsistencies and a lack of supporting
evidence provided by Dr. Aftab. Newell, 2017 WL 1200911, at *7; AR at 2094.
Judge Castel’s ruling on the April and September 2010 opinions is the “law of the
case” and need not be revisited under that doctrine absent a “compelling” or
“cogent” reason such as “an intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent manifest injustice.”
Morales v. Berryhill, No. 17-CV-9315 (JLC), 2018 WL 6381049, at *22 (S.D.N.Y.
Dec. 6, 2018) (quoting Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008)) (internal
quotation marks omitted); see also Martinez v. Comm’r of Soc. Sec., No. 18-CV01570 (KHP), 2019 WL 3852439, at *7 (S.D.N.Y. Aug. 16, 2019) (finding scope of
review on limited remand in a Social Security appeal is “narrowed to issues not
explicitly or implicitly decided in prior proceedings, by application of the ‘law of the
case’ doctrine.”). Because these circumstances do not exist here, Judge Castel’s
ruling on the April and September 2010 opinions is controlling in this case and will
not be revisited.
10
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provide ‘good reasons’ for not crediting the opinion of a claimant's treating physician
is a ground for remand.”) (citing Schaal, 134 F.3d at 505).
Here, the ALJ assigned “little weight” to Dr. Aftab’s 2013 opinion on the
grounds that it was “unclear” and inconsistent with Newell’s work activity. AR at
1980. Besides summarizing the limitations found by Dr. Aftab in his 2013 opinion
—i.e., Newell “is not precluded for 15% or more of an eight-hour workday for any
specific mental function” but that he “is only precluded for 10% of an eight-hour
workday in the ability to understand, remember, and carry out detailed instructions
. . . and travel in unfamiliar places and use public transportation”—the ALJ did not
explain what is “unclear” about this opinion. The Commissioner provides no clarity
on this point in his brief and, instead, simply repeats this finding and states in a
conclusory fashion that the ALJ provided “good reasons” for discounting Dr. Aftab’s
opinion. Def. Mem. at 23–24. While the Court could speculate about the ALJ’s
basis for finding Dr. Aftab’s opinion “unclear,” it would be inappropriate to do so. It
is the ALJ’s obligation to provide enough specificity for the Court to determine
whether the ALJ had “good reasons” to accord little weight to Dr. Aftab’s 2013
opinion. See, e.g., Estrella, 925 F.3d at 95 (requiring “that the crucial factors in any
determination . . . be set forth with sufficient specificity to enable [the Court] to
decide whether the determination is supported by substantial evidence”) (quoting
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). The ALJ failed to do so in his
decision.
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The ALJ also reasoned that Dr. Aftab’s opinion deserved less-than-controlling
weight because the limitations Dr. Aftab assigned to Newell—including limitations
in his ability to understand and carry out detailed instructions and maintain
concentration for extended periods of time—did not preclude him from working in a
religious bookstore or as a pizza delivery clerk since his disability onset date. AR at
1980. On this point, the ALJ failed to take into account the circumstances
surrounding Newell’s work. As an initial matter, Newell worked as a volunteer—
not an employee—in these positions in exchange for free rent and meals. See, e.g.,
id. at 1957 (affidavit from Angelo Siderias stating that Newell occasionally delivers
pizza for Napoli Family Restaurant & Pizzeria in exchange for food); id. at 2035-36
(Newell testifying that he volunteered at the bookstore three days a week in
exchange for free rent). Moreover, the ALJ did not acknowledge portions of the
record that established Newell could not take on certain responsibilities in these
positions, and that appears to be consistent with Dr. Aftab’s 2013 findings. See,
e.g., id. at 2057 (Newell reported stress related to his pizza delivery work because
“sometimes he gets lost”); id. at 2532 (Newell disclosed that while working at the
religious bookstore, he did not fully understand how to operate an “iPad which ha[d]
some kind of financial tool attached to it”); id. at 2034, 2040–41 (Newell testified
that he “messed up on the register most of the time” while working at the bookstore
and did not understand how to work the credit card function on the cash register). 11
Magistrate Judge Freeman also previously highlighted in her Report and
Recommendation that the ALJ “overstated the extent of [Newell]’s activities of daily
living.” Newell, 2017 WL 9538171, at *32. She noted Newell’s difficulties with
11
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Accordingly, the fact that Newell maintained these positions, without more, does
not establish the requisite “good reasons” for discounting Dr. Aftab’s opinion.
The ALJ also concluded that “no adequate explanation or cited clinical
findings” supported Dr. Aftab’s statement that Newell would be “off-task” for 15% of
an eight-hour workday and absent from work more than six days per month. Id. at
1980. To support this finding, the ALJ reasoned that “Dr. Aftab’s opinions are
regularly accompanied by treatment notes with no consistent mental status
examination clinical findings”; however, this reasoning is contradicted by the very
next sentence in which the ALJ admits that Dr. Aftab’s treatment notes are
illegible. Id. To the extent the ALJ took issue with the fact that there were no
legible treatment notes providing additional details supporting his 2013 opinion,
courts in this District have explained that a treating physician’s “failure to include
individualized support for the findings in his evaluation ‘does not mean that such
support does not exist.’” See Rodriguez v. Berryhill, No. 16-CV-9951 (JPO), 2018
WL 1508739, at *3–4 (S.D.N.Y. Mar. 27, 2018) (quoting Clark v. Comm’r of Soc.
Sec., 143 F.3d 115, 118 (2d Cir. 1998)). Ultimately, while Dr. Aftab’s notes may be
illegible, this fact alone does not undermine his 2013 opinion; in fact, as discussed
above, his findings are supported by other evidence in the record that was not
discussed by the ALJ, including Dr. Helprin’s 2009 and 2015 opinions.
driving, taking public transportation, cleaning his apartment, preparing his own
meals, maintaining adequate personal hygiene, and managing his personal
finances. Newell, 2017 WL 9538171, at *30.
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In sum, the ALJ erred by improperly applying the treating physician rule and
failed to articulate “good reasons” for affording “little weight” to Dr. Aftab’s 2013
opinion.
b. The ALJ’s Application of the Treating Physician
Rule Was Not Harmless Error
The ALJ’s error in failing to properly analyze Dr. Aftab’s opinion under the
treating physician rule was not harmless. Indeed, the proper application of the
treating physician rule is potentially dispositive in determining whether Newell is
disabled within the meaning of the Act. See, e.g., Roman v. Saul, No. 19-CV-3688
(JLC), 2020 WL 4917619, at *20 (S.D.N.Y. Aug. 21, 2020) (finding that ALJ’s
analysis was not harmless error because had the ALJ credited the treating
physician’s opinion, the VE determined that it may have resulted in claimant’s
inability to work). Dr. Aftab’s opinion that Newell had limitations in his ability to
understand, remember, and carry out detailed instructions and maintain attention
and concentration for extended periods of time, id. at 895–98, if credited, would be
dispositive as VE Burger testified that a person with difficulty understanding
instructions as well as attention and concentration limitations could not perform
any job. Id. at 2048; see, e.g., Pines, 2015 WL 872105, at *10 (concluding that ALJ’s
analysis was not harmless error because “the [vocational expert] essentially
testified that if these opinions were adopted, [the claimant] would be unable to
work”) (quoting Archambault v. Colvin, No. 2:13-CV-292, 2014 WL 4723933, at *10
(D. Vt. Sept. 23, 2014), adopted by 2015 WL 1381524 (Mar. 25, 2015)); Greek v.
Colvin, 802 F.3d 370, 376 (2d Cir. 2015) (“ALJ's failure to provide adequate reasons
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for rejecting [treating physician's] opinion was not harmless” because “vocational
expert . . . testified that [plaintiff] could perform no jobs available in large numbers
in the national economy if he had to miss four or more days of work per month”).
2. The ALJ’s Step Three Finding Must Be Reconsidered in
Light of the ALJ’s Error in Applying the Treating
Physician Rule
Because the ALJ violated the treating physician rule, the Court need not
decide whether substantial evidence supports the ALJ’s finding that Newell does
not meet a listing requirement under Step Three. However, on remand, the ALJ
should reexamine the requirements under Listing 12.05B, as necessary, in light of
Newell’s treating physicians’ opinions and all other relevant medical evidence in the
record.
In analyzing Newell’s impairments at this step, the ALJ considered Listing
12.05B. AR at 1966–72. 12 This Court will review the ALJ’s Listing 12.05B decision
as Listing 12.05C was not in effect at the time the ALJ issued the August 2019
opinion. 13 Listing 12.05B requires the following:
Listing 12.05 was revised to eliminate Paragraph C effective January 17, 2017.
See 81 Fed. Reg. 66138-01 (S.S.A. Sept. 26, 2016). Accordingly, at the time of the
ALJ’s August 2019 decision, Listing 12.05 only had Paragraphs A and B.
12
The SSA “expects that Federal Courts will review [its] final decisions using the
rules that were in effect at the time [it] issued the decisions.” See Revised Medical
Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138-01 n.1 (Sept. 26,
2016); see, e.g., Randolph v. Berryhill, No. 17-CV-6711 (BCM), 2019 WL 1434301, at
*7 (S.D.N.Y. Mar. 29, 2019) (referring to the listings in effect at the time of the
ALJ’s decision). Additionally, if a court reverses and remands an SSA decision “for
further administrative proceedings after the effective date of these [] rules, [the
SSA] will apply these [] rules to the entire period at issue in the decision we make
13
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(1) Significantly subaverage general intellectual functioning evidenced by a full
scale (or comparable) IQ score of 70 or below on an individually administered
standardized test of general intelligence;
(2) Significant deficits in adaptive functioning currently manifested by extreme
limitation of one, or marked limitation of two, of the following areas of mental
functioning: (a) understanding, remembering, or applying information; or (b)
interacting with others; or (c) concentrating, persisting, or maintaining pace;
or (d) adapting or managing themselves; and
(3) The evidence about claimant’s current intellectual and adaptive function and
about the history of his disorder demonstrates or supports the conclusion that
the disorder began prior to his attainment of age 22.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1. § 12.05B. A marked limitation means a
claimant’s “functioning in this area independently, appropriately, effectively, and on
a sustained basis is seriously limited. An extreme limitation is the inability to
function independently, appropriately or effectively, and on a sustained basis.” AR
at 1966.
As an initial matter, the ALJ did not directly address the first or third
requirements and instead decided whether Newell satisfied Listing 12.05B based
only on the second requirement. The ALJ found that Newell did not satisfy this
second prong—whether Newell had significant deficits of adaptive functioning—
after the court’s remand.” Revised Medical Criteria for Evaluating Mental
Disorders, 81 Fed. Reg. 66138-01 n.1.
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because he had only moderate limitations in two functional areas (understanding,
remembering, or applying information and concentrating, persisting, or
maintaining pace) and mild limitations in the other two functional areas
(interacting with others and adapting or managing oneself). Id. at 1966, 1969–70.
In making this assessment, the ALJ considered the consultative opinions of Drs.
Fine, Helprin, Mata, and Figueroa. Id. at 1966–70. Although Dr. Helprin opined
that Newell had marked limitations in the ability to maintain attention and
concentration, the ALJ ultimately dismissed this portion of her opinion on the
grounds that it was not supported by substantial evidence. Id. at 1978–79.
However, in evaluating Newell’s deficits in adaptative functioning, the ALJ
failed to consider portions of the record that supported Dr. Helprin’s finding of
“marked” limitations. For example, Dr. Aftab’s 2013 opinion established Newell’s
inability to understand, remember, and carry out detailed instructions, travel in
unfamiliar places, or use of public transportation for 10% of an eight-hour workday,
and that Newell would not be able to obtain and retain work in a competitive work
environment due to his impairments. Id. at 896–98. In addition, Dr. Krieg reported
that Newell was exhibiting “worsening depressive symptoms,” which caused him to
modify Newell’s diagnosis from “Depression, major, recurrent, mild” to “Depression,
major, recurrent, moderate.” Id. at 2974, 2976. Moreover, Bachenheimer’s
treatment notes demonstrate that Newell had difficulty in adapting and
maintaining a regular schedule, and in managing himself. See, e.g., id. at 2531
(discussing Newell’s inability to “follow-through” at work and noting on November
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19, 2018 that Newell’s landlord told Newell that “he ha[d]n’t put in as many hours
as he would like”); id. at 1138–39 (noting twice in 2013 that Newell has poor
hygiene and only washed his clothes once a month). Rather than address the
evidence from these treating professionals that tend to support Dr. Helprin’s
“marked” limitation finding, the ALJ relied solely on consultative and reviewing
psychiatrists’ opinions. Id. at 1966, 1969–70.
Without knowing what weight would be afforded to Dr. Aftab’s 2013 opinion
following the proper application of the treating physician rule, however, the Court
cannot reach a conclusion as to the ALJ’s finding as to Listing 12.05B. Accordingly,
the ALJ should revisit Listing 12.05B after properly determining what weight to
give to Dr. Aftab’s 2013 opinion.
3. The Case Is Remanded For Further Proceedings
The Court is mindful of Newell’s request for this case to be remanded solely
for the calculation of benefits, particularly given that it was first filed nearly a
decade ago. However, “a calculation-only remand is appropriate when the record . .
. ‘provides persuasive evidence . . . that render[s] any further proceedings
pointless.’” Vasquez o/b/o A.T.R. v. Saul, No. 16-CV-4791 (ENV), 2020 WL
2933857, at *6 (E.D.N.Y. June 2, 2020) (citing Williams, 204 F.3d at 50). “[I]n a
case where, as here, there is conflicting medical evidence, remand simply for the
calculation of benefits is unwarranted.” Roman v. Berryhill, No. 17-CV-2804 (VSB)
(DCF), 2018 WL 7291422, at *9 (S.D.N.Y. May 9, 2018) (citing De La Cruz v.
Colvin, 16-CV-3954 (AT) (HBP), 2017 WL 2270250, at *2–3 (S.D.N.Y. May 3,
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2017)), adopted by 2019 WL 588464 (Feb. 13, 2019). Remanding solely for the
calculation of benefits “is considered an extraordinary action,” and, given the issues
still to be resolved, is not appropriate at this juncture of the case. Robinson ex rel
A.A.M. v. Comm’r, No. 19-CV-6172 (JJM), 2020 WL 4333339, at *6 (W.D.N.Y. July
28, 2020).
III. CONCLUSION
For the foregoing reasons, Newell’s motion for judgment on the pleadings is
granted, the Commissioner’s cross-motion is denied, and the case is remanded to
the ALJ pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the ALJ
should:
(1) Provide a comprehensive analysis, including explicit consideration of all of
the Burgess factors, in determining how much weight to assign Dr. Aftab’s
2013 opinion; and
(2) Reexamine the requirements under Listing 12.05B in light of Newell’s
treating physicians’ opinions and all other relevant medical evidence.
SO ORDERED.
Dated: February 17, 2021
New York, New York
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