Rogers v. Colvin

Filing 18

MEMO ENDORSEMENT ADOPTING REPORT AND RECOMMENDATIONS for 17 Report and Recommendations, 13 Motion for Judgment on the Pleadings filed by Carolyn Colvin, 11 Motion for Judgment on the Pleadings filed by Stephen Joseph Rogers. ENDORSEMENT: N o objections to this Report and Recommendation (the "R&R") have been received. I review it for clear error and find none. Accordingly, the R&R is adopted as the decision of the Court. The Clerk of Court is respectfully directed to terminate the pending motions, (Docs. 11, 13), and remand the case to the Commissioner of Social Security for further proceedings consistent with the R&R. So Ordered. (Signed by Judge Cathy Seibel on 9/6/16) (yv)

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 1 of 34
No objections to this Report and Recommendation (the "R&R")
have been received. I review it for clear error and find none.
Accordingly, the R&R is adopted as the decision of the Court.
[NI I I I) SI A IFS 1)15 IRIC I CO[R I
54)1 1111 RN DIS I RIC I 01 NI \\ YORK The Clerk of Court is respectfully directed to terminate the
-Npending motions, (Docs. 11, 13), and remand the case to the
Commissioner of Social Security for further proceedings
S II PIlIN JU’cIP1I ROCIRS.
consistent with the R&R.
Pijimi ri.
RIIORT ANI)
RE(’i\IMFXI)ATIOX

-mainst-

15 Ci\. 3021 CS ii PID

(.\R01 YN \V. COl yIN.
.\ctin Commissioner of Social Securit,

Defendant.

1 0 1111 I IONORABII CA I I JY SLIBI:L, 1. nited States District Judge

September 6, 2016

I. INTROIRCIION

Planiiff Stephen Joseph Rogers brings this action pursuant to 42 [S.C.

405(gi

challenging the decision of the Commissioner of Social Securit (the “C ominissioner” den\ ing
his application for benefits on the ground that he was not disabled

Social Security Act (the “SSA’). 42 LS.C.

ithin the meanin of the

423 ci seq. Ihe matter is before me pursuant to

an Order of Reference entered October 21. 2015

(Dkt 7 ) Presentl\ before this Court are the

parties’ cross-motions for judgment on the pleadings pursuant to Rule l2c of the Federal Rules

of (

i

11 Procedure (Dkt. 11 (plaintiffs motion). 12 (plaintiff memorandum of 1as in support).

13 (detndanfs motion). 14 (defndant’s memorandum of la in support). 15 plaintiffs reply

memorandum

0)

la\\ in support). and 16 (delendants reply memorandum of la\\ in support))

For the reasons set forth befo\\ I respectfully recommend that defcndant
.

motion he 1)ENIEI).

and that plaintiffs motion he CRNTE1) to the extent that the case is REI\NI)FI) pursuant
to 42 1 S (

4oS

.

sentence four. for further ajminisirati\ e nroeeediniis

([S IlL;

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 2 of 34

II. BACKGROI:ND
The following facts are taken from the administrative record rR.”) of the Social Security
Administration (Dkt. 6), filed by defendant in conjunction with the Answer. (Dkt. 5.)

A.

Application History
Plaintitiwas born on February 12. 1977 with cerebral palsy. (R. 141. 157. 172.) lIe

graduated from college and obtained a maste?s degree in journalism. (R. 35. 42. 158.) From
1993 through 2001, he worked as a tennis court attendant during the summers, and from 1999 to
2001, he worked as a freelance reporter. (R. 158, 178.) He had a prior claim for Disability
Insurance Benefits from July 28. 2000, which terminated on March 2004. R. 154.) From
October 2001 through June 30, 2011. plaintiff worked in the accounting department of a
brokerage firm co-owned by his cousin, in a position he described as an ‘accounting assistant°
or an “office worker in investment firm.” (It 29-3 1, 157, 179, 184.) Plaintiff was laid off when
the firm downsized due to financial difficulty, at which point plaintiff unsuccessttilly searched
for employment and applied for unemployment benefits with the Department of Labor.• Plaintiff
told the Department of Labor that he was able to work and testified that he could perform ajob
in an office doing data entry. (R. 29-32-36, 157, 184.)
On June 19, 2012, plaintiff filed a Tide II application for a period of disability and
disability insurance benefits alleging disability beginning June 30. 2011. the datc he was laid off
from his job at the brokerage firm, due to cerebral palsy. muscular imbalance. paralyzed palate
(speecJpainnent)jçaring lopd vision.ioss. (R. 9, 1JJ.57.) His,claim was denied
initially on October 24,2012. (R. 82-86. Thereafter, plaintiff filed a written request for a
hearing before an administrative law judge (“AU”), which was held on October 29.2013 in
White Plains. New York. (R. 26-75.) At the hearing, vocational eNpert Michael Smith appeared
I

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 3 of 34

and testified s ia teleconference Plaintiffis flhther, Stephen Rogers. Sr., testified as flell. On
December 1. 20 3. plaintiffi s claim

a administratis el denied.

R 6-21 1 1 he \l J ‘s

decision became the final order of the ( ommissioner on \Iarch 2, 2015. s hen the \ppeais
( ouncil deiied plaintiffis request for re iess

CR. I

-

) Plaintiff timels tiled this aLtion on \1a

21. 2015. çDkt. 1.)
B.

I reatinC Sources
I he administrati e record contains arious medical and other treatment records, I he

lolloxing is a distillation of their rele ant points.
Dr. Salh Jordan. Ml).
During the rele ant period, plaintiff receix ed treatment from ophthalmologist Dr. Salix
Jordan, fhr purposes of completing disahilitx paperwork (R 160-65, 199, 232, 270.) In an
August 15, 2011 report prepared for the Office of Vocational and l’ducational Ser\ ices thr
Indiiduals With Disabilities, Dr. Jordan noted that plaintifis distance isual acuitx in the right
cxc as 20 400 sithout correction and 20 70 with correction Plaintiffs ‘visual acuitx as
or nearix normal for reading. which reflects an 8.5 percent loss, with and \\ithout correction in
the right eye. CR. 230.) Plaintiffs left eye had Cl’ (counting finger) ision for distance and
reading Oth and ‘a ithout correction. representing a 98° o ision loss in that eye. (Id.) Dr.
‘.

Jordan opined that plaintiff had restricted x isual field and muscle tunuion, and no depth

(ounting fingers would he safely interpreted as legal blindness since it indicates that the
indi idual could not see the standard measurement at 20 teet See \ edLL Sha’amut l)esiLn &
Const. Grp. Long I erm Disahilit> Ins. Plan. 231 Supp. 3d 320. 326 n 4 (S.DN.\. 2014) (citing
Wends Strouse Watt. 0.1).. “1 Io’a Visual .\cuitx is Measured,”
http: loss s ision.pres enlhlindness.org cx c-conditions hoss-visual-acuitx -is-measured. (“It is
common to record s ision ssorse than 20 400 as Count Fingers ((‘F at a certain number of beet.
I egal Blindncsc is ‘a hen a pci son’s hest-Loriected s ision is 2() 00 or ‘a oi s “1)
.

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 4 of 34

perception. R. 230-3

3 Plaintiffs congenital es e pathologs included csotropia left
.

hs pertropia colohoma of the retina’, irR anomals, ptoslS s isual field defects, and bilateral
.

cataracts (R 23L)
Dr. Jordan Lompleted an examination on Januars 22, 201 1 for the Department of \Ioto
Vehicles (“DMV3. R. 233.) She recorded plaintiffs sisual acuits as 20 50 and 20 400 and
indicated that his s ision ss as 20 40 ss hen both es es ss crc tested together 3 She noted no
s isual field defects or other findings in that examination,

(I)

In a letter dated December 12, 201 2. Dr Jordan stated that she had been treating plaintiff
since December 1998 and ss as ass are of his impairments including congenital s ision, hearing,
speech. and gross motor skills She noted that plaintiff demonstrates amhl opia, esotropia, left
hypertropia, and nstagmus

Dr. Jordan stated that she had treated plaintiff one da\ earlier, and

that his parents told her that plaintiffs impairments affected his ability to Lomplete tasks and
ssork assignments. and caused him to lose his job. (R. 270.) I)r. Jordan opined that plaintiff
Esotropia is a term used to describe crossed eyes. gg American Association for
Pediatric Ophthalmologs and Strabismus, available at https: ssxvw.aapos.org terms conditions 9.
I1pertropia is sertical eye misalignment. causing an ee to he higher than normal. See
American Association for Pediatric Ophthalmolog\ and Strahismus, as ailable at
https: ss.aapos.org terms fags 14.
Colohoma is a hole or detect sshich may cause blurred s ision. Iecreaccd s ‘sual acuity.
double sision, or ghost image.
MedlinePlus. asailable at
https: medlineplus.eos enc article 0033 18.htm
Ptosi i a dr opina of the uppr eselid See \rnencsn \c idcm
asailable at http \kSS\\ aao or eke-health diseases sshat is-piosIs

e\e.

I Ofhthalmoh

.\mhlsopia the loss of the ahilit to see clearl through one ee. It is also called ‘lai
MedlinePlus, as ailable at
medline jus.aos enc article 001(31 3.htm.

s stagmus is a term to describe ftsst. uncontrollable mos ements of the e es See
\lcdlincPlus, as ailabie at https medlineplus.gos enc ariJ 00 )3 htm
-4-

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 5 of 34

should be eligible for disahilit> benelits because hi% impairments negati’iel> affected his abilit>
to carr> out da>-to-da> chores in the ssorkplacc. and noted that plaintiff ssas unable to
concentrate and sit still for the e> e examination (Id.)
2

l)r. John £4oliJ’hi2

Ps>chotherapist 1k John CaNa3. PhI) sass plaintiff six times betsseen September 1’ and
October 152011. (R. 9”. 2’l. 27”-83

Dr. (‘ansa> noted that plaintiff “manitested a great deal

of frustration in explaining hi’ situation and sias restless after fort) minutes. (R. 2’7-”8.) I)r.
Carwa> beliesed that plaintiff ssas “concealing his emotions sith an attempt at being reasonable.
as though he thought it ssasn’t right for him to feel this isa>” (R. 277) Dr. Cansa> noted that
plaintiff”tries not to dwell on his disabilities’ and though he “can get upset,” he “doesn’t want
to.

.

be ‘consumed b> it.”

(a) 1k Carwa> opined that plaintiff had problems concentrating

and that plaintiff tried to “coser[J up his true feelings,” and noted that he had difficult)
understanding plaintiff’s speech. (R. 278.281.)
Plaintiff explained to Dr Cansa> that he “doesn’t want any pit>” with regard to his
speech problems, and that he isould prefer a person wto does not understand him to “simply say,
I didn’t get that,” rather than pretend to understand plaintiff. (R. 279.) Dr. Cansa> noted that
plaintiff’s “point was that he could handle it.” (R. 280.) Plaintiff ssas “icr> aware of the
discrepanc> betiseen ishat he thinks he .an do and what job placement people has to otter’ but
noted that plaintiff continued to search for jobs through “the internet. the nessspapers...
tollowjingj tips and job counselors

%ked about how he sees his luture. his tint

(R ..80)

response is getting ajob” because he “fears

.

.

.

he ma> be totall> dependent on his parents.” iR.

282.)
In an October Il, 2013 Iunctiona aw’essment Dr C ansa> diajnosed plaintilfssith
t
-5-

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 6 of 34

d\ sth mic disorder. \mona the S\ mptoms Dr. Carx as identi fled ss crc

poor memors.

peronaIits change, mood distarhance, emotional lahilits, los of interests, and lelings of

nuilt ss orthlcssnes R, 2 1,) In response to a prompt to describe clinical tindings. including
rcsult of mental status c\aminauons, that supported plaintilPs mental impairments and
ss mptoms, Dr. ( arss as ss rote that “during sessions impaired pcech. hearing and attention made
it dityicult, causing much repetition and shortening of sessions” and did not note any mental
status examination.

R. 22W) Dr. Carssay noted that plaintifPs psychiatric condition

exacerbated his pain, as there is a “constant feedback of mood and affect on dail actisities, I or
example. frustration inhibits performance and leads to outbursts of anger.

iR. 27273.) Dr

Carss ay denied that plainti IT had any difficulty ss ith intellectual functioning, delusions, illogical
thinking, or oddities of thought, perception. or hehasior, (R, I )
Dr. ( arssay opined that plaintiff had substantial to complete loss of mental abilities
needed to do unskilled ssork in 18 functional areas, including understanding and remembering
very short and simple instructions, ssorking in coordination ssith or proximity to others ssithout
being unduly distracted, accepting instructions and responding appropriately to criticism from
supers isors, and dealing with normal ssork stress. hut opined that plaintiff had fair ability to
understand and remember very short and simple instructions and maintain regular attendance
and hL punctual (R 74 ) Dr (arss ay checked that plainti I Ps ahilits to carry ut s cry sh rt and
simple instructions ssas both “fair” and “poor none” (Id) Dr ( arssay opined that plaintifPs
function is ses erely impactcd by his organiL problems sshich ses crcly impede all hi
lunctioning,” and indicated that plaintifis functional limitations sscrc all extreme. R. 5-6.)
I)r. (‘arssay also opined that plaintiff had extreme liniitations in actis ities of daily lix ing and
social functioning. deficiencies of concentration, persistence. and pace and continual episodes of

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 7 of 34

dempensation.

R. 275.

concluded that “h

is

Dr. Carwa\ noted that plaintilis

“attention

ob\ bus that the cerebral pais has hroudht on

span is limited” and

Impairments of such a

nature as to lead to dlstractihilit\. mood shifts, lrustraton and aneer.”

C.

fonsultatl\ c Examinations
Dr. Mark Johnston. ME)

V

SSA consultative

examiner

Dr. Mark Johnston. MD, performed a neurological

examination of plaintiff on August 28, 2012.
plaintiff and his ftuther. who appeared at the

sustained

inluries

R. 244-47.

examination.

Dr Johnston interviewed both
Dr Johnston reported that plaintiff

at birth and that. due to paralysis of the palate. plaintifr s voice had a nasal

quality which made it difficult for Dr. Johnston to understand him. Dr. Johnston reported that
plaintiff had worked for

ten

years

with accommodations

position, hut that plaintiff had been unable to find

fbr

a family

member in an office

ork since the office closed due to speech

di fflculties. Plaintiff reported bilateral colobomas resulting in decreased

right, and bilateral hearing loss since
hearing aid

in

infancy,

vision,

left greater than

but plaintiff was able to hear fairly well with a

his right ear. Plaintiff reported oni driving locally due to his vision and hearing

difficulties, and stated that he could walk and run normally, cook, clean, do laundry, shop, and
groom himself independently. (R. 244-45.)
Dr. Johnston’s examination records reveal that plaintiff had 20 51) corrected visual acuity

in the right eve and 2070 in the left eve, with 20 70 vision when both eves were tested together
on a Sneilen chart at 20 feet. :\ whitish lesion co\ereu the optic disc 01 plainuhi s right
he had a c ataract in his left

eye,

ee.

and

Plaintiff had a marked horizontal nvslagmus with the left lateral

gaze. and no left or right held de1ct. (R. 245-46.)
PlaintifPs gait and station. spine, extremities. hands .and seiwalion ere normal.

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 8 of 34

Plaintiff wa dressed appropriately, maintained appropriate eve contact. appeared orientated, and
exhjhjted no sicns of del uions. hallucinations, impaired memor\. inauht. or udament. 1 us
mood and atiect

crc appropriate.

R. 245-46.

A “mini mental status” exam revealed “no e idence of delusions.., no indication of
recent or remote memorx impairment.” appropriate mood and affect. and •no suggestion

01

impairment in insight or judgment.” (R. 426d I)r. Johnston diagnosed a history of cerebral
palsy. dysahria, bilateral hearing loss, colohoma of the right eye, cataract or the left eve, and
nvstagmus. and opined that plaintifPs speech and vision were moderatelx limited, and that
plaintifPs mild hearing’ limitation was partiall> compensated with a right hearing aid, (R. 247.)
Dr. Johnston recommended an ophthalmologic evaluation to characterize the extent of plainti Ii’s
visual limitation.
2.

N_i

Dr. Seema Rathi. MI),

Ophthalmologist Dr. Seema Rathi examined plaintiff for the SS:\ and issued a report on
Arigi,ist 29. 2012. Dr. Rathi reported that plaintiffs visual acuity for distance was 2070 in the
right eye and with correction, 20/40 for distance and reading. Dr. Rathi noted that plaintiff was
CF in the left eye with and without correction. Plaintiff had no afferent pupillary defect and full
extraocular muscle movements. The anterior segment showed normal lids. conjunctiva. and

cornea. Plaintiff had anterior cortical cataracts in both eves and colohoma of the choroid and

“Dx sarthria iS a condition in xhich the muscles x ou use br speech arc weak or von
have difftcultv controllin them.” Mayo Clinic. a ailahlc at
hop: v wx .mayocl:aic,org dis.easeN-conditions dx sarthria.hasics dc0niton CO\-2UtJ35u()S.

Although Dr ,Tohnston writes that plainti 11 “mild limitation of !cLlnhfn,u’’ is
compensated hx a hearing aid. Dr. Johnston presumably intended to sax “mild limitation of
/ILLlr!i?c.”
R. 24.
.

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 9 of 34

retina inlriorlx in both e es. Plaintiff had full held of \ ision in the right e\e. and responses
superiorl\ in the left. l)r Rathi opined that plaintiff s ould not he able to pertorm normal s isual
tasks, though he did pros ide a further description of shat normal iual tasks entailed. (R 24951
3.

Dr. Ste\en Goldstein

On October 15, 201 5, otolars ngoloit Dr Goldstein performed an audiometric
e aluation and found that plaintiff had bilateral hearing loss, ‘a ith profound loss in the left ear
and moderate to se\ere loss in the right ear, fbr ‘ahich he used a hearing aid. Plaintiff reported
that he sas doing sell ‘aith the hearing aid. l’he audiograms resealed 96°c speech
discrimination in the right ear and no response in the left ear. (R. 255-58.)
4.

Dr. D. \\hite

Non-examining consultant Dr. White, an internist, issued a report on October 23. 2012 at
the request of the SS\

.\fter a re\ie’a of the record, Dr \\ hite opined that plaintifPs Residual

Functional (“apacit (“RFC”) vas for ‘aork that did not require excellent ‘visual acuitx, depth
perception, full field of ision. critical ratings for hearing or speaking. constant or prolonged
exposure to loud noise, or exposure to unprotected heights or haiards Dr. \\ bite’s report did not
explain hoss plaintifPs impairments led him to determine this RFC. (R. 261.)
1)

Non Medical I x Idence

I

Plaintiffs ftinpns and Self-Re ort

Plaintiff testified that he ‘aorked at a aookkeeping tpe of oh ssith acLommodatlons

from October 2001 through .June 2011 hoi his Lousins business. hR 30-2i lie receised his
master’s in journalism from lona, and could not recall sshether he used accommodations in that
prouram (R fl

I Ic testified that he

‘a

s able to r Id a sign threL t et ass as Ii om him and did
9

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 10 of 34

not need to strain his eyes. (R 41. 45.) lIe stated that he could read well enough to work on a
computer

i

R 3940. 55

emergencies

;

Plaintiff testified that he had a dn ers’ licence, and he droi e in

R 3940.) lie could hear at work with the use of a hearing aid. and had no

trouble hearing at the administratie proceeding. (R 44.) lie testified that due to his limited
concentration, sometimes he sorked additional hours to complete his work. (R 36-3”. 42)
In a I unction Report. plaintiff stated that he did not haw trouble with stress. changes in
schedule. paying attention or remembering things. following instructions, or getting along with
others. lie reported enjoying going to the gym and the library, and %urfing the internet. watching
tele ision. and watching sports. lie sociali’ed. went to mo ies, sporting eents. social groups.
and church, and went outside eery day by walking or using public transportation. lie reported
caring for personal needs by shopping, cooking. cleaning. performing household chores, and
doing yard work. his abilities to perform aetiiities or interact had not changed. (R. 168-176.)
2.

Keinlleneghan

Kevin Heneghan was the Senior Managing Director of OTA flnancial. the accounting
firm where plaintiff worked for ten years. and is plaintiff’s cousin. Mr. lieneghan submitted a
letter dated September 4.2013. which stated that plaintiff interned at OJA during college and
was hired after applying for a permanent full time position on October 8. 2011. Mr. hieneghan
stated that p anal1 accepted a buy out termination offer when the firm reduced ts ort1t n.e.
and that 01 \helped plaintiff search for another lob Mr. lieneghan described plaintitTs group
at 01 as responsible for collecting the reenue generated by tht. hrm and di’pensins monit. to
pay fir incurred expenses. tr. I leneghan stated that plaintiff recen ed accommodations at the
firm including reassignment of some tasks when clients. cugomers. and endorc had dit’ficulty
communicatinj with plaintiff Mr Ileneghan rote that plaintiff’s “iesight caused him
-10

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 11 of 34

difficulty readin& and it took him longer to complete tasks. uch as reading office and external
email communication’

1r. I leneghan praised plaintiff for being popular and admired by his

coworkers., ha’ ing impressi e determination and commitment. for always being punctual and
accepting new tasks eajerly. for reei ml. critu.ism and instruc.tion. and for ne er %hrinkinJ from
responsibility. n en though plaintiff had some emotional outbursts. 1r. I leneghan opined that
plaintiffs impairments would handicap his ability to hold down ajob in the nonnal workplace
R. 267-68i
3.

Ruth Baruch. 1.S.. C.R.C.

Vocational consultant Ms. Baruch inteniewed plaintiff and his parents and reiiewed

some record e idence as part of a tocational assessment in August or September. 2013. Plaintiff
reported to Ms. Baruch that he took longer than a erage to complete tasks. that he had ision.

speech. and hearing deficits, and that he had motor skill difficulties. Plaintiff reported that he
watched teleision. went to the library and spent two hours at the gym daily, that he used the
computer. and that he enjoyed watching sports. writing, and going out with friends. PlaintifF
stated that he drove locally but avoided highway and night driing due to his ‘vision problems.
Plaintiff told Ms. Baruch that he worked for his cousin at 01 4 from October 2001 through June
2011 in the accounts pay able department. performing data input reconciliation of accounts, and
social networking Plaintiti reported that he lost his job due to tompany layoffs and did nt state
that he recehed any accommodations at work. Mc. Baruch classified plaintiffs past work as an
ai.c.ounts recei able clerk. Job (ode No .16 482-010 in the Dictionary of Oci.upational I ales
(‘IX)) “j 4’ ed. Re’ ‘s 1991). which is a sedentary and skilled position. (R. 263-266).
Plaintiffs parents told XIs. I3aruch that plaintiff faced many difficulties at work, had
ai.ommodations. and could not perform ompetithe jainf ii emploment a “ery different
I

—I

—

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 12 of 34

stor\ than \shat plaintiff told Ms. Raruch \Is. Baruch “opined that mans aLeommodations ‘acre
created

,..

that

‘a

ould not he considered reasonable h an other empio er,” and requested a

letter from Of \ I inancial Ms Baruch relied on the inter\ e’a s of plainti I Ps parents and reports
from I)r. Jordan and 0 1 \ I nancial, not plaintitPs inter ie’a, in Ibrming her opinion

4.

R 63-

ghenjpcers. Sr.

Stephen Rogers. Sr., plaintifPs Ptther, testified at the hearing that. though he ‘aas ne er
told ‘ah plaintifi ‘aas laid off from 0l.\, he helie es one of the reasons ‘aas plaintifPs difIicult
concentrating (R. 56. 58.) PlaintifPs father stated that during college. plaintiff had
accommodations and that he has emotional outbursts from frustration x\hile in the office or at
home. (R. 60.) PlaintifPs father opined that Mr. lleneghan hired plaintiff to ‘aork as an
“accommodation job because of the relationship” and that plaintiff’s impairments ‘aould prohibit
him from sorking at another job, e en though plaintiff helie ed he ‘aas capable of sorking. (R
47.48 51. 55. 60.) Mr. Rogers testified that plaintiff’aas unable to do yard ‘aork aside from
holding a bag open for leases, and was only capable of making a sand’aich if ingredients ‘acre
laid out for him. (R. 5253.)
5.

Vocational bxpert Mike Smith
ocational I \pert \likc Smith testified at the administrati e hcann4 that a h poihetical

person ho could perform ‘aork at all e\crtional levels. e\cept could not perform jobs that
Iequired depth perception ‘aould nac di1Iicut1 communicating ssith others du

t

a speech

impairment. and could not perform jobs requiring a high le el of hearing hut could understand
human oices and en ironmental sounds. Lou’J perftrm plaintiff’s past job as a brokerage clerk,
‘ahich is classified as skilled edentar\

‘a

)rk. Mr Smith testified that the h\pothetical person
.l2

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 13 of 34

could perlhrm jobs as a credit card clerk, scale operator. and garment steamer. (R. 62-73.)
III. LEGAL STANDARDS

Standard of Review

A.

In revie\ing a decision of the Commissioner, a district court may “enter, upon the
pleadings and transcript of the record, a judgment affirming, modif\ing. or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause fhr a
rehearing.” 42 LS.C.

§ 405(g). “It is not the function of a reviewing court to decide de iiovo

whether a claimant was disabled.” Ielville v.A fel, 198 F.3d 45, 52 (2d Cir. 1999). Rather.
the court’s review is limited to “determinling] whether there is substantial evidence supporting
the Commissioner’s decision and whether the Commissioner applied the correct legal standard.”
rg’,:,strue, 566 F.3d 303, 305 (2d Cir. 2009) (quoting Machajp,,v. Aid, 276 F.3d 103,
108 (2d Cir. 2002)).
The substantial evidence standard is “even more” deferential than the “clearly
erroneous’ standard.” Brault v. Social Sec. Admin, 683 F.3d 443, 448 (2d Cir. 2012). The

reviewing court must defer to the Commissioner’s factual findings, and the Commissioner’s
findings of fact are considered conclusive if they are supported by substantial evidence. See 42
U.S.C.

§ 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence is

“more than a mere scintilla” and “means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Lamax v. Commissioner of Soc. Sec., 562 F.3d
03

07 (2d Cii 2009> iquotmg Richaidson PLiates ‘+02

S 389 401 1971ij

In

determining whether the agency’s findings are supported h substantial evidence, the reviewing
court is required to examine the entire record, including contradictory evidence and evidence
from which conflicting inferences can he drawn,” Talavera v. Astrue, 697 F3d 145, 151 (2d Cir.
-

I

-

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 14 of 34

2012) (internal quotation marks and citation omitted) ‘IS hen there are gaps in the
administrati’ie record or the ‘,l J has applied an improper legal standard.” or when the Al i’s
rationale is unclear in light of the record e idence. remand to the Commissioner “t’or further
de elopment of the es idence” or for an explanation of the Al l’s reasoninj is warranted. Pratts
C haç. 94 1 3d 34.39 (2d Cir. 1996).
Disahilit)

B

A claimant is disabled under the SSA when he or she lacks the ability “to engage in an>
substarnial gainful actiity 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 e’pectcd to
last for a continuous period of not less than 12 months.

.°

42 U.S.C. § 423(dXIXA). In

addition. a person is eligible for disability benefits under the SSA only if
his physical or mental impairment or impairments are of such seierity that he is
not only unable to do his previous work but cannot. considering his age.
education, and work c”perience. engage in any other kind of substantial gainful
work which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job acancy
exists for him, or whether he would be hired if he applied br work.

a 4 423(dX2XA).
A claimant’s eligibility for SSA disability benefits is ealuated pursuant to a fhe-step
sequential analysis:
1.

1 he Commissioner considers whether the claimant is currently engaged in
substantial gainful actii it>.

2

If not the (ommissioner considers whether the claimant has a seerc.
impairment’ which limits his cii his mental ‘i physical ability to dc basic
work acti ities.

1.

If the claimant has a “seere impairment” the Commissioner must ask
whether, based solely on medical e idence. claimant has m impairment
listed in Appendix I of the regulations If thee timant has one of these
-14-

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 15 of 34

enumerated impairments, the ( ommissioner v ill automaticall\ consider
him disabled. v. ithout considering ocational factors such as age.
education, and s ork e\perience
4.

If the impairment is not “listed” in the regulations, the Commissioner then
asks shether, despite the claimant’ seere impaiiment, he or she has
residual functional capacit\ to perform his or her past s ork.

5.

If the claimant is unable to perform his or her past ork, the
Commissioner then determines shether there is other sork shich the
claimant could perform.

Rolon. Commissioner of Soc. Sec., \o. 12 Cix. 4808, 2014 WI 241305. at *6 S.I).\ Y Jan.
22, 2014): see 20 C.I .R.

404.1520(a)(4)(i)

ta),

416.920(a)(4)(i) (. ihe claimant hears the

burden of proof as to the first four steps of the process.

e façe’ounggr. Barnhart, ‘35

h.Sd 99, 106 (2d Cir. 2003). If the claimant pro\es that his impairment prexents him from
performing his past work, the burden shifts to the Commissioner at the fifth and final step. See
20 C.l.R.

§

).
2
.1560(cX
O
4 At the Ofth step, the Commissioner must prose that the

claimant is capable of obtaining substantial gainful cmploment in the national econom\
Butts v. Barnhart, 416 F.’3d 101. 103 (2d Cir. 2005): 20 CJ.R.

§

See

403.1560(c)(2).

IV. THE AU’S I)ECISION
I he ‘\I J properl applied the five-step sequential analy sis described aho e and

concluded that plaintiff xsas not disabled under the meaning of the

SSA.

(R. 9-21.) At step one.

the \I .1 detcimmed that plaintiff had pcrtoi med substantial gainful acti it sincc the alleged
onset date until the second quarter of 2012, as plaintiff earned $)7,70,
‘hird and fourth quarter of _0 1

and the f nsf quarter of 01

.

respectis eI)

and $,50 in the
(R 1 1 ) I he \I J

concluded that plaintiff had not engaged in Substantial Gainful .\ctiit since the first quarter of
2012. Ihe \I .1 concluded that. in an e\ent. plaintiff \\ould he determined “not disabled’ een
if he did not perfarm Substantial Gainful \Lti it\ incc the allcued onset date

(Id.

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 16 of 34

it step two, the ALT concluded that plaintiff’s cerebral pals> and ision. speech. and

hearing impairments congituted ‘seere impairments” within the meaning of the SSA
12.) lIoweer. the

Sd

R. 11-

J determined that plaintilrs mental impairment of dysthymic disorder did

not cause more than minimal limitation in his ability to perform basic mental work acm ities and
is therefore not seere. R. 12.)
U step three. the iii determined that plaintiff’s impairments (indi’iidually or combined)
did not meet or medically equal the seerity of one of the listed impairments in 20 C.l .R. Part
404. Subpart P. ppendi’ I (R. 14.)
‘se’t, the \I .1 determined that plaintiff had the RFC’ o perform a full range of work at
all exertional lei els but cannot perform jobs requiring significant oral communication with the
public or with co-workers due to his speech impediment and hearing loss: howeser. he is capable
of hearing understanding human voices and general sounds in the eniironment with the use of
hearing aid. lie would not be able to perform jobs that require depth perception due to blindness
in one eye.” (R. 14.)
At step four, the Al .1 determined that plaintiff is capable of performing past relevant
work as a brokerage house clerk This work does not require the performance of work-related
acthities precluded by the claimant’s residual functional capacity (20 (‘FR 404.1565)7 (R. 19.)
U step Inc thc U J determined that translciabthty of oh sk 11’ is not mater al tt th
determination of disability because using the Medical-Vocational Rules as a framework supports
a findin, that the claimant is not disabled wht.ther or not thc claimant has transferable jot
skills (See SSR 82-41 and 20 (‘IR Part 404. Subpart P. .\ppcndic 2),” and that “Iijn the
altemati e. considering the claimant’s age. education. work e”perience. and residual functional
tapacit there are other iobs that e’ist in significant numbers in the nation ii econom’ that the
16

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 17 of 34

claimant also can perlhrm (20 Cf R 404,1 56Q and 404 1 569(a)).” (R. 20.) Fhe Al J concluded
that plaintiff had not been “disabled” under the SSA. tR. 21.)
V. ASSESSING TIlE AU’S FPI)INGS

Plaintiff challenges the (ommissloner’s decision a number ol grounds. including that the
Al J improperl excluded most cx idence and that xhich remains is not substantial, and that a
proper cx aluation of the cx idence requires a remand tr further hearing and dcx elopmcnt of the
record. (PlaintifPs Memorandum ol Lax\ (“P1. \Iem.”): PlaintifPs Repl\ Memorandum of I axx
(“P1. Repl>”)).
Defendant maintains that the Al 3’s decision “is 1ega11 correct and supported by
substantial exidence.” (Memorandum of Laxx in Support of the Commissionefs CrossMotion
for Judgment on the Pleadings and in Opposition to PlaintifPs Motion for Judgment on the

Pleadings (“DeL Mem.”) at 13, Reply Memorandum of I axx in I urther Support (“Def Reply”))
A.

I he RI C Determination

1.

Medical Sources
a.

Dr. Jordan

Plaintiff claims thai the \I 3’s analysis fails to fblloxx the treating physician rule (P1.
Mem. at 13.) Defendant argues that the AU properly applied the treating physician rule in
discounting the mLdical pinion 01 Dr

ordan. he only treating source (Del \Iem at 19

In considering any medical opinions set forth in the administratixe record, the \I J must
gix e controlling weight to the opinion ol a treating phy sician

it it

is xxelUsupported oy the

medical record and is not inconsistent with other substantial record cx idence See Green
Youncer. 335 l.3d at 106:20 C.1.R.

404.l2(d)(2). 416.92(d)(2)

treatina source” is a

’cal
claimant’s “o xn phx sician, psxLh logst, or othei accLptablc m 1 soure who prox ides [the

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 18 of 34

claimant [. or has provided the claimant

ith medical treatment or

has had, an ongoine treatment relationship v th [the claimant

.“

C\

aluation and

2t) (‘.1 R.

ho has. or

404. 1 5U2

When the treating ph sician’ s opinIon is not gi en controllinu \\ eight, the Al .J must
determine the amount of weight to he assigned to the treating source s opinion based upon
consideration

of the following

fi.tctors:

(1)the length. nature and extent of treatment and the

trequencv ot examination: (21 the rele ant evidence presented by the treating source in support

ol his opinion: (3) whether the opinion is consistent with the record as a
treatinc source is a specialist in the area relating to his opinion: and

(

)

‘

‘a hole: 4 whether

other factors

to support or contradict the opinion. e Shav. 221 F.3d at 134: 20 C.F.R.

‘a hich

the
tend

404.1 527d)( 2)-(6).

lhe AU need not recite each factor explicitly, provided the AUJs decision reflects substantive
application of the regulation, See Atwater v. Arg. 512 F. App’x 67.70 (2d Cir. 2013) (“We
require no such slavish recitation of each and every Ihctor where the AI.,J’s reasoning and
adherence to the regulation are clear.”). I lowever. an ;\I.J’s failure to set lbrth “good reasons”
fur the weight accorded to a treating source opinion is a ground for remand. S.ge Greek v.
Colvin, 802 F.3d 370. 375 (2d Cir. 2015).
here, the AU addressed Dr. Jordan’s opinion as follows:
[Dr. Jordan] further asserted that in addition to his visual abilities, the
claimant has significant speech and hearing impediments, which would negatively

aflct his ability to carr\ out day to day chores especially in a \\ork setting. Dr
Jordan also stated that the claimant lacks the ability to concentrate fur any length
of time hut there is no objective medical evidence to sustain this conclusion.
which as based solely on the ad\ ice by the claimant’s parents that his ahiiir\
tO complete tasks and ‘aork assignments e\entualiy caused him to lose his. oh
-

-

1

a

due to “do\vnsi/ing”

no

n’

rather

tIl

than poor periormance.

tw i a

‘a

1

Dr. Jordan concluded that the claimant was “disabled” due to the
aforementioned impairments. The undersigned cannot give an\ evidentiary
weight to this opinion. I)r. Jordan. of course. is not a vocational expert who is
-18-

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 19 of 34

competent to make thi% determination Dr. Jordan is the claimant’s treating C)C
doctor ‘who has no o’ erall kno’w ledge of the claimant’s ‘work capahi lilies. I or
example. the phieian has made no examination of the claimant’s motor skills.
the opinion al%o does not take into account that the claimant has been authorit’ed
to operate a motor ‘chicle- ‘which can onl> ha’ e been appro ed by Dr. Jordan’c
report to the Department of lotor Vehiele. Whether the claimant ic “disabled’
IS. ol eoure. a determination resened to the Commissioner iZi’ CL R 4(14,l521e)
and SSR 96-5p.
R. I iemphasis in original).
the AIJ conducted a thorough re te’w of the medical e idenee that he states fails to

support the opinion of l)r. Jordan. ‘who onl) sat’ plaintiff t’wice during the relet ant time period.
j) I he ALT’s abot e articulation demonstrates that he applied the substance of the treating

phsieian rule and amounts to “good reason” for the ‘weight the Al J accorded Dr. Jordan’s
opinion.
b.

l)r. Rathi

Plaintiff argues that the .\lJ improperly gave “no weight to the opinion of his o’wn

treating specialist, Dr. Rathi, that Plaintiff ‘will not be able to perform normal tisual tasks
although her underlying findings supporting the opinion are identical with those of the treating
specialist. l)r. Jordan!” WI. Mem. at 12.) Defendant contends that the “Mi appropriatel)
rejected the opinion of consultatite examiner Dr. Rathi that plaintiff could not perform normal
tisuat tasks, ‘ince it ‘was inconsistent ‘with other etidence

that plaintiff could perform man)

normal sisual tasks.” (Def. Mem. at 20.) Defendant adds that in fact, Drs. Jordan and Rathi’s
findings ‘were not identical, in that the) “differed ‘with respect to ti’ual acuit>. ‘sisual field, depth
percept’n. and muscle function” hut that regardlec%, “the At J rcasonahl dI%counted them a
conflicting ‘with other c’s idence.” tjj & n.j 0)
l’he AIJ summari,es the findings of plaintifrs consuhati’se ee examination ‘with Dr.
-19-

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 20 of 34

Rathi from :\ueust 201 2

1 Ic concludes that he could not accord any evidcntiarv weieht to l)r.

Rathi ‘s opinion that plaintiff ould not he able to perthrm normal \ isual tasks, because the
“objective medical evidence does not demonstrate that the claimant’s vision has deteriorated
since his alleged onset date, prior to hich he was able to steadil\ \\ork for 10 years as a
brokerage clerk, performing clerical work and bookkeeping duties which often required him to
use a computer. These activities require normal visual

ipahiities.

(

R. 1 6.

Dr. Rathi is not a treating phvs ician because, despite plaintifl s characteritation of her as
a “treating specialist:” she examined plaintiff for the SS:\ on only one occasion. (R. 249-51.)
:\S

such. her opinion is not entitled to controlling weight, and the :\LJ’s decision to gi\e no

\\elght to Dr. Rathi’s ultimate opinion atker a thorough analysis was not erroneous.
c.

Dr.

Plaintiff argues that the AU erred in failing to give appropriate weight to Dr. Carwa’s
fIndings. including that plaintitis “panoply of symptoms

...

make employment impossible.”

and in concluding that plaintiffs dvsthvmia was not severe. (R. 12-13. 273: P1. Mem. at 21.1
Defendant argues that the ALT’s discount of Dr. Carwav’s opinion was reasonable. (Def. Mem.
at 20.)
The AI.J stated that he
cannot accord sieniticant e identiar weight to the opinions of Dr. (ar\ a’ as
they are based on a very brief treatment history and only relate to current opinion.
It makes no longitudinal reference. In addition. the opinion was given in a “check
oti format w tth little narrative and no retrospccti \ e applicatIon. The form 15 not
Li1Ntnt ith the p\Lholo1st s tIe itilig notes hih ha1al1\ i uat tn
at
suhjecti\ e feelings of the claimant rather than clinical ohserx ations of limitations
in mental functioning. The treatment notes do not contain formalized mental
status examinations or cognitive testing to pro ide support tdr the asserted
limitations,
R. I

I

At the time of his letter. Dr Car\\ a had nub been

seethe

plaintiff thr one month. (R.

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 21 of 34

9. 271. 277-83.) Plaintiff concedes that Dr. Carway cannot be considered a ireating sourceS
due to the recency of the relationship and as such. the opinion “as not entitled to controlling
weight. (P1. Mcm. at 20); Halloran v. l3arnhart. 362 F.3d 28, 32 (2d. Uk. 2004).
Dr. Carways report contradicts plaintiffs answers in the Function Report, in which
plaintiff indicated that stress or changes in schedule do not affect him, that he never lost ajob

because of problems getting along with people. and that he has no problems getting along with
bosses or other people in authority. (R. 175-76.) Plaintiff argues that the AIJ erred in
accepting.

.

.

what the claimant said in his written function report. although the testimony and

the notes of LDr. Carway] confirm that Rogers is prone to exaggerating his own capability.’ (Pt.
Mem. at 12.)
The AU can appropriately reference plaintiffs admissions about his capabilities to
support his RFC and credibility findings. 20 C.F.R. 404.1529; Salmini v. Comm’r of Soc. Sec..,
371 F. Appx 109. 113 (2d Cir. 2010) roenerally speaking. it is the function of the AL.J. not the
reviewing court. ‘to resolve evidentiary conflicts and to appraise the credibility of witnesses.
including the claimant.”’) (internal citations omitted). Though Dr. Carway noted that plaintiff
tried to “cover[J up his true feelings.” and that plaintiff was “aware of the discrepancy between
what he thinks he can do and what job placement people have to offer.” Dr. Carway did not, as
plaintiff asserts. ‘confinn that Rogers is prone to exaggerating his own capability.” (R. 278.
280.) In fact. Dr. Carway assessed that plaintiff had no delusions or hallucinations, oddities of
thought. perception, speech or behavior, or illogical thinking. (R. 271.) Dr. Johnston’s minimental status exam also noted “no evidence of delusions.

.

.‘

(R. 246.) Dr. Carway’s report is

also inconsistent with the mini mental status exam conducted by Dr. Johnston, which reflects
that plaintiffs mood and affect were appropriate. (R. 246.)
-21-

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 22 of 34

Accordingly, the A1.J did not err in crediting plaintifPs own statements in his function
report over Dr. Car\\ a\ ‘s conclusIon.

Dr. Johnston

d.

PIantiff claims that the Al.J “is m error n acceptina the opimon of Dr. Johnston o’ er
those of Dr. Rathi or Dr. Jordan.” Plainti Ii speculates that Dr. Johnston’s findine that plaintiff

had 20 70 corrected

in his left eve must he mistaken. as Drs. Jordan and Rathi both found

VISiOfl

that plaintiff only had “counting fingers” vision ot the left eve, indicating blindness. Pl. Mem.
at l2l3. The AU stated:
Dr. Johnston opined that the claimant had “moderate” limitations for
vision and hearing and a mild limitation of hearing, which was partially
compensated with a right hearing aide Isici :\lthough the physician did not
precisely defined I sie the term “moderate.” the undersigned accords substantial
evidentiary eight to the opinions of the examiner as they are consistent with the
overall medical record and the work hisior of the claimant. Overall, the
examination did not demonstrate significant neurological deficits.
.

R. 16.) First. the Al

,J’ s

summary of Dr. Johnston’s medical source statement is. mistaken, as is

Dr. Johnston’s. statement itself. The ALT states that Dr. Johnston opined that plaintiff had both a
moderate and mild limitation for hearing, and did not mention Dr. Johnston’s assessment of
plaintiffs speech. Dr. Johnston stated that plaintiff has “moderate limitation of speech
mild limitation of learning, which is partially compensated with his right hearing aid

.

.

...

.

a

rand]

moderate limitation of vision.” R. 247 (emphasis added).) As Dr. Johnston’s report does not
appear to test for learning disabilities and his analysis of a “limitation of learning” is qualified by

mention of a hearing aid.
he wrote “earning.

t

is safe to assume that Dr. Johnston intended to

\\

rite “hearing” where

Accordingly, an accurate summary of Dr. Johnston’s opinion is that

plaintiff had a moderate limitations

01

vision and speech. and a mild limitation for hearing.

Rcardiess. the Al .1’ RFC dctermnation regarding plaintiffs ision unsupportable in
‘.

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 23 of 34

light 01 the %l J’s assessment of the medical eidence of record and the weight to which the U J
accords the arious doctors’ opinions I hough the \I J states that he accords substantial weight
to T)r. Johnston’s opinion, the Al i’s RH’ that plaintiff sould not be able to pertbrm jobs that
rcqwrc depth perception due to blindness in one e> C refieu% the medical finding’ of Drs Jordan
and Rathi that plaintilmad C’I” in his left e>e. rather than I)r. Johnston’s clinical finding that
plaintiff had corrected sision of 20 50 in his right e>e and 20 70 in his left

(R. 14.)

Ihe U i’s reliance on Dr. Johnston’s ultimate conclusion that plaintiff had onl>
“moderate” isual limitation is illogical, considering that he explicitl> disregards the medical
es idence upon which Dr. Johnston relied in reaching that conclusion. I he U i’s pronouncement
that plaintiff is blind in one e>e is all the more punling in light of the ALl’s rejection of the
conclusions of Drs. Rathi and Jordan the sources upon which the AU must hase relied for the
proposition that plaintiff is blind in one e3e, considering the ALl does not credit plaintiffs own
claim of blindness. R 19 i”I I’Ihe claimant is not a totally reliable witness

‘hile he claims

blindness in his left eye. he uses correetise glasses which enable him to perform acti’iities.”).)
The AU seemingly cherry-picks medical findings from Drs. Rathi and Jordan about plaintilis
blindness in one eye. while rejecting other limitations resealed by their examinations (for
ecaniple, that plaintiff has a restricted isual field and muscle function). (R. 230-31.) lhe XLI
then purporu.dly at.cepts the agu onclusior t Dr J hnston that plaintiffs i on was
moderately limited, and mysteriously interprets that to conclude that plaintiff is limited to jobs
tnat do not require depth pera’puon, which is belied by Dr Johnston s own clinical findings
Defendant offers that “it is within the ALl’s pro’ ince to resolve conflicting es idence.
including by adopting some findings from a particular source while rejecting other findings from
that source” jI)ef Reply at 5) 1 he cases that defendant cites for this iopocitit n v inappocite
-23-

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 24 of 34

here. as neither address an Al I ‘s ho purportedly accepted a doctor’s ultimate opinion while
dbregarding the medical findings that supported that same opinion in the RI C determination.

Ssc flgj

coimr of Soc. Sç., 141 1’ Id 115. 118 Cd (‘ir. 1998 r’remanding where the Xli

did not “‘seek out clarifying information’ concerning.

percehed inconsistencies between (an

indi’iidual doctor’sj two reports”): Veinos. Barnhart. 112 K3d 5”8. 588 (2d Cir. 2002) (finding
that it is within the pros inee of the ALl to resohe two conflicting opinions of the same doctor).
Plaintiff also takes issue with the lack of specificity of Dr. Johnston’s finding that
plaintifi’ has only a “moderate limitation of ision.” as Dr. Johnston gase “no functional or
quantitatise definition for his finding of a bmednte limitation ofsision.” P1. Mem. at 12-13.)
As noted abose. the ALl acknowledged that l)r Johnston did not precisely define the term
“moderate.” but nesertheless accorded substantial weight to his opinion because it was
“consistent with the oserall medical record and the work history of the claimant.” (R. 16.)
Defendant is generally correct that “an opinion phrased in terms of ‘moderate’ limitations
can support a RPC finding when other record esidence gibes the opinion concrete meaning”
(Def. Mem. at 16-17) (citing Rigano v. Astrue. No.07 Cii. 10282. 2010 WI.. 6385381. at 24
(S.D.N.Y. Sept. 13. 2010, (report and recommendation adopted by 2011 WI 1406185 (S D.N Y
Mar. 30, 2011)). lloweser, in this case. the XLI interprets “moderate limitation of sision” to
mean blindness in one eye a lrndinj that could not possibly jise onc.rc.te meanin to Dr
Johnston’s conclusion, as l)r Johnston’s own findings contradict the Xli’s interpretation of his
wnclu’on
Oserall. the Al .I’s illogical and conlusing assessment of Dr. John’.ton’s opinion, in
conjunction with his analysis of I)rs. Jordan and Rathi and his ultimate RIC determination, is
improper and warrants remand. Xs the Second C irc’.it e’plained in a related contew
“4

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 25 of 34

I he requirement of reason-gix ing exists, in part, to let claimants
understand the disposition ol their cases. e en and perhaps especiall shen
s ho knox s that her ph sician
those dispositions arc untax orable .Ac laimant
has deemed her disabled, miuht he cspeciallx heildered xxhcn told by an
administratix e hureaucrac\ that she is not, unless some reason for the agen\ s
decision is supplied See .Terr\ I \Iashaxx. I)ue Process in the \dministratix e
State 15 6(19$5)

gllypfl, I7 F,3d 128. 133-34 (1999).

here, although the AIJ gixes reasons for

according no cx idcntiar \seight to the opinions of Drs Rathi and Jordan and substantial
cx identiarx xxeight to Dr Johnston’s opinion, these reasons and the \I J’s intermediate

conclusions in his decision do not comport xxith his ultimate RFC determination, Plaintiff
“might be especially hexxildered” b the .\Ii’s RFC determination regarding his sision, because
the Court is hexxildered as xxell.
On remand, the AI.J must gixe further explanation for adopting some findings of Drs.

Rathi and Jordan (that plaintiff is blind in one eye), hut rejecting the ultimate opinions of these
doctors, xxhile purportedly adopting the conclusions of Dr. Johnston. xxhose clinical findings the
Al J rejects.

In expounding upon his interpretation of Dr. Johnston’s opinion regarding

I his discussion occurred in the context of the \I is obligation to gix e “good reasons”
lbr not crediting a treating physician’s opinion, hut the same logic applies here.

Remand on this basis is a Llose call It is entirel possible that, as Respondent posits.
the Al J “gaxe Plaintiff the benefit of the doubt’ by concluding he is blind in one cyL despitL
haxing rejected all the exidence supporting that diagnosis (Def. Mem. at 16 n.6.) Plaintiff
could hardly he heard to complain about such a concession. But no such concession is
ariculated in the \I I’s decision, so xxc are left xxith an anomalx xxhich so long as it is left
unexplained undermines confidence in the ‘i j s reasoning. ,gg I olany x. I leckler, 6 I d
268, 272 (2d Cu 1985 gremanding in part to pcrmit clarification of “implicit” and
“unarticulated” elements of’ AU’s reasoning).
I agree \xith Defendant that the Al .1 did not err in Idiling to dcx elop the record
regarding x arious aspects of the doctors’ opinions (I)cf \lcm. at 21 n. Iii I loxxex cr, upon
recx aluation of’ thL record and plaintifPs abilities on remand, the \I I max choose to seek further

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 26 of 34

plaintiff’s isual impairment. the \l 3 should take care to a oid incorporating opinions or
mediai findings that he eke’w here disa o’w s
2.

\on-Medical Sources
a.

Plaintiff’s lather

Plaintiff asserts that the Au improperly “does not beliee the father\ testimony
regarding hi’ son’s abilities, accepting instead ‘what the claimant said in his ‘written function
report. although the testimony and the notes of the treating psychologist confirm that Rogers is
prone to eaggerating his o’wn capability.” (P1. Mem. at 12.)
I nder SSR 96-7P. the Al J “must consider the entire case record. including...
statements and other information provided by treating or e”amining (sources) and other persons
about the symptoms and how they affect the indisidual.” 20 (‘FR 404.1513(dX4) states that
“other sources include but are not limited to. .spouses. parents and other caregi’iers, siblings.
.

other relati’ies. friends, neighbors and clergy.” 20 (‘1 R 404.1527(cX3)-(4): 20 Cl’R
404.1513(d): SSR 06-OeP. 2006 WI 2329939 at 2, ‘p5-6 (SSA Aug 9.2016).
Upon consideration of plaintiff’s father’s testimony. the AU explained that Mr. Rogers
Sr.
Itlestified that his child ‘was so mentally deficient that he ‘sas able to do
practically nothing that esen making a sand’wich ‘would be difficult for him.
1 en holding a bag for his father to put lea’es into ‘was impossible becausi. ot
debilitating gross motor skills. Ibis testimony ‘was esaluated by the undersigned
as being highly ecaggerated and totally inconsistent ‘with any of the objectie
medical e idence. Accordingl’s.. the claimant’s lather sas generally an
unreliable ‘witness
-

(R. 17 n.6.) I he Mi further e”plained that plaintiff’s father “gave highly e”aggerated testimony
clarifying infonnation from plaintiff’s doctors.
26-

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 27 of 34

at the hearing while describing the claimant s medical conditions and functional limitations, He
asserted that the claimant

\

as essentially incapable of functioning independently and suffired

from dehilitatinc cross motor skill deficits

—

facts not established by the o erall medical record

and specilicall\ contradicted b the claimants \\ork honors

I S.;

l’hc AU gave proper consideration to plaintitis Unher’s testimony and. in light of the
Al .J s af rementioned analysis of plaintiffis o n teslimon\. permissahl found plaIntiffs father

to he a non-credible
b.

itncss.
Ms. l3aruch

Plaintiff argues that the AU improperly “[dud not believe statements or opinions from
Rogers vocational consultant. Ms. Baruch. stating they are based on non-credible statements
made by plaintiff and his father and further denigrates the vocational e aluation because it was
based on a telephone intervie\\

(P1. Mern. at 12.) lIe argues that the “:\l J failed to properly
consultanf and that “the ALl s

evaluate the third-party statementi made by

I the vocational

outright disbelief of [thisi corroborative soured

and the concomitant disbelief of Rogers

without further explanation is a clear error of law and evinces a predetermined outcome by AU
Katz” (Id at 19.)

Defendant argues that the AU “appropriately discounted VU Baruch’s opinion because it
was primarily based on her uncritical acce.ptance of the intc.rviews of plaintiff s parents, which

the AU found to he not credible. rather than based on plaintiffs interview delineating his many
iunctional abilities

DLI \lLm at 20)

1 he Al .1 detailed Ruth l3aruchs. August 21)1

ocational assessment. Despite plaantiIts

report to Ms. l3aruch that he \\ent to the gym, used the computer. vent to the library. enjoyed
‘

aichin sports.

rung, or yer occasionally coijig out with a friend.” dro e localix. and

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 28 of 34

obtained a high school diploma, Bachelors degree in media communications and a Master’s
decree in Journalism. Ms. Raruch opined that plainti 115 “multitude of limitations including his
significant x isuai and communeaIion dctcits. gait disturbances. io stamina. dfPcultv dealinc
v

ith feedback and emotional labilit \ouid prohibit hm trom being ablc to maintain
‘‘

competitive employment.”

R. 63—66. u Fhe ;\l .J explained that he

accords no weight to the opinions of Ms. Baruch as they are not based on an n
person function-bv—lunction evaluation of the claimant’s functional abilities. In
addition, she appears to have relied heavily on the subjective report of symptoms
and limitations provided by the claimant’s parents she uncritically accepted as
true most, if not all, of\vhat was reported. 1he claimant’s parents are not
medical professionals and accordingly are not competent to make a diagnosis of
the severity of the claimant’s symptoms.

(R. 7-l8.)
The A U’s explanation of his choice to accord no weight to Ms. Baruch’s opinion is
thorouch and reasonable and does not amount to the ‘-clear error of la\\” that plaintiff asserts.
c.

Mr. Ileneghan

Plaintiff complains that “the AU Decision also fails to give the required explanation as

to why he gave little weight to the employer’s written statement, and tound it less than fully
credible.” (P1. Mem. at DO,)

The AU explained that he “accords little weigh to Mr.

Heneghan’sl opinion, as it is internally inconsistent with Mr. Heneghan’s statement that the
claimant exhibited impressive determination and commitment in his work, was always punctual,
accepted new work assignments eagerly, received criticism and instruction, and was liked by his
IC lo emploees

R

I h Al I turthr \plalnLd Inat Mr I ILneghan

take into account that the claimant had a If) \ear, successful ork relationship

onimon doLs not
ith the tirm and

lost his lob onl\ because of non-medical reasons a downsizing.” (Id.) hurther, the .\1i noted
that Mr. I lcncchan’s report of claimant’s team’s responsibilities and plainti ti s “pcrf.rmance of

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 29 of 34

such responsibilities for the lenth of time the claimant worked demonstrates that he is not
impaired to the extent ulleced: in addition, there isno medical evidence that his o erall condition
deteriorated since he stopped \vorkne.
I find that. as

ildi

tth the :\IJ ‘s assessment ol’ the other third parts sources. the :\1 .J

satisfied his responsibility of considerine non—medical sources and made a reasoned decision to
accord little weight to Mr. I lencehan s letter.
3,

Lvaluation ot allClec1liipients
a.

airment

Plaintiff contends that the AU should have considered plaintifPs psychiatric impairment
of’ a dvsthymic disorder to he severe. (P1. Nem. at 20.) Plaintiff claims that medical and lax

evidence support plaintilis emotional problems. even though he admits that the “functional
impact is somewhat unclear.” (Id. at 21.) Plaintiff relies on Drs. Jordan and (‘arwa\

5

“unsolicited statement about Rocers beine unable to maintain concentration as support for the
severity of plaintiffs disorder. (id.)
Here. the AU reasonably found that plaintiffs dvsthvrnic disorder was not a severe
impairment because it did not significantly limit hisS’ capacity’ to perform basic ork activities.
(R. 12.) The ALT engaged in a multi-step analysis of the four broad functional areas set out in

the disability regulations for evaluating mental disorders and in section 12 .OOC of the Listing of
Impairments (20 CFR. Part 404. Subpart P. Appendix 1) (R. 12-13). As part of this process. the
I

aluared plaintil f

iti

nics of dailx lis in

OLi

11 1 untioning

cOflLLIuI

duon ncrslstLncc

or pace. and episodes of decompcnsaton in concluding that plaintiffs mental impairment causes
is non-severe. Ihe Al .1 credited plaintiffs explanation of his abilities in a 1 unction Report ti’om
September 26. 201 2. upon

‘

hich, as explained ahox e. the Al .1 reasonabl\ relied. In this report.
-

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 30 of 34

plaintiff indicated that he had no prohlem’ pa ing attention, can finish \khat he starts, has no
problems aetting along s ith authorit\ figures and ha ne er lost a job due to prohIem gettina
along s ith others. and that stress does not at fct him R I 5-76 I

\s

e\plained aho e, the \I J

also I airir discounted the opinions of Dr. ( ar\sa\. the only mental health profssional in the
record. shose findings plaintiffis counsel een submits are “admittedl inconsistent sith his
findings and the totality of the e idence,” and Dr. Jordan, the ophthalmologist sho noted
plaintiffis inattenti\eness during the eye examination. R. 2’O.)
Oerall, I do not find that the \IJ erred in finding plaintiffis dysthxmic disorder to he
non-seere, and I disagree sith plaintiff that the Al J failed to properly ealuate this impairment.
h.

Exertional Limitation

\dditionally, plaintiff claims that the AU erred in excluding any exertional limitations.
such as impairment of gross motor skills, in the RFC. (P1. Mem, at 2l22.) \s explained ahoxe.
the ALt fairly discounted the testimony of plaintiffis father concerning his exertional
impairments. Furthermore. ophthalmologist Dr. Jordans comment that she vas “fully a’s are of
Iplaintiffs multiple impairments. including.

.

.

gross motor skills” is certainly not evidence in

itself of any severe exertional limitation. (R. 270i I disagree sith plaintiff that the ‘\Ii erred in
failing to include e\ertional limitations in the Rl’C

B

lhe Ails Finding Ihat Plaintiff Could F rforn his Past Releant \ork anOtgrjps
in the \ational I Lonoms
Plaintiff claims that the AId improperl relied upon the testimony of the ocational

sitness that there sere jobs in the national economy that plaintiff could perftrm. (P1. \Iem, at
224.

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 31 of 34

ialCircr1Istances
I irst. plaintiff alleges that his past sork sas performed under special circumstances.
Plaintiff argues that the \LJ improperly “[riefused to accept that Rogers’ ssork \sas performed
under ‘special circumstances’ despite testimon’ by the claimant and his father and sntten
statements h the employer and a socational e\pert.
\l

i’s

“exen

(P1. \Iem, at 1). lIe claims that the

“determination that Rogers can perform ‘past reles ant sork’ is a stras man” and that
it

Rogers[ s work sas not performed under special circumstances. the sork that he sas

found capable of doing h the socational sitness xsas not the sork he actually performed!

().

at 15)
Defendant notes that, “[alt the hearing, the onh ssork accommodation plaintiff reported
receixing as help in explaining the process to him, an accommodation \shich the AU correctly
found conflicted sith other portions of the medical record: at other times, plaintiff did not report
receis ing any accommodations

(Del Mem, at 14.) 1 urthermore, 1)efendant states that the

“o erall record re eals that on numerous occasions plaintiff failed to mention receh ing any
accommodations at \ork. the only time he mentioned recei’ing an accommodations. they
appeared to be minimal”
If”x.ork is done under special conditions.” such as being “gi\en the opportunity ssork
despite Ian] impairment because of family relationship, past association ith [an] employer, or
[the] emploer’s concern for [the claimant’s] \\elfare,” the Social Security Administration ‘may
find that [the] ork does not

that [the claimant

is]

able to do substantial gainful actis ity.

Hosexer. ssork done under special conditions may shos that Ithe claimant has] the necessary
skills and ability to sork at the substantial gainful acii\it\ lesel,” 20 CER.
Astrue, 569 1 3d 108. 114 (2d Cir 2009)

404 153: Moran

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 32 of 34

nlike Moran, in

hich the Al J erroneoush fifiled entireI to refer to a medical report

suggesting that the claimant’s x\ork \\as gradualh curtailed as a result of his disabilities, the \1 .1
in this case ga e a thorough c\plananon of his decision not to consider plaintilis \\ork as ha ing
been done under special conditions, Ihe \l J described \Ir. lieneghan’s letter hich
summariied plaintitis \\ork performance and the xas in \\hich Mr. lieneghan’s lirm
accommodated plaintiff and. as e\plained aho\e. the \I J also articulated his reasons br not
according weight to the opinion. (R. 18.) Ihe .:\.I J noted that though plaintiff”elaimed that his
employer (his cousin) accommodated him and made allosances for his ‘sloxness.”’ such
accommodation as not documented in the record (R. 15.) here, the Al J performed sufficient
anahsis of the conflicting eidence regarding the existence of special circumstances at plaintiff’s
preious position and reasonahh declined to bind that plaintiff’s \\ork as done tinder special
conditions.
2.

C on

The Mi enlisted the assistance of a ocationa1 expert and posed hypotheticals to him to
identify jobs that an individual ith plaintiffs vocational profile could perform and the
incidence of such jobs in the national economy. (R. 6273.) Plaintiff asserts that there

is

a

conflict heteen the Dictionary of Occupational litles fhr either the brokerage or accounting
clerk position

and \ I Smith s testimony. because the DO I states that both positions rcquirc

use of near acuity. hich plaintiff claims to lack. (P1 NIem. at 16.) Defendant asserts that.

Pla ntill initially asserts that the Al J erred in accepting the testimony of the oationaI
sitness that plaintiff xorked as a brokerage clerk. \hen plaintiff and his emploer note that he
xas an accounting assistant and the other ocational speciahst deemed him an accounts
receix able clerk. (Ph. \Iem. at 13). I decline to address this conflict because plaintiff concedes
that “that is not the real problem here. for as the Commissioner correctly points out, the demands
and f inctions of the ts o jobs are actuall quite similar’• (P1 Rcpls at 2)
32

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 33 of 34

because substantial evidence supports plaintiffs ahiht\ to perform visual tasks

mx olving near

acuity, and therefore both the 1)01 and the VVs testimon\ assumed plamtiffs ahilit\ to engage
in tasks involvine near acuitY, there s no conflict between the 1)01 and the vocational expert’s

testimony. (Def, \lem. at 24-25.) \s explained aho\ e, I do not find that the Au’s assessment
of Drs. Jordan. Rathi. and Johnston’s medical findings and opinions regarding plaintiffs visual
capacity comport

ith the Al i’s REC determination as articulated. 1 hereflre, it is impossible to

assess whether the h\ potheticals posed to the Vocational Nxpert were based on plainti ffl s true
abilities. If. upon further analysis of the medical evidence of plaintitIs visual limitations, the

:\1.J finds that plaintiffs RFU encompasses a limitation other than

hat is into his current RFC

determination, the AU should pose new hypothetical questions to the vocational expert based on
the revised RFC.
C

Post-Onset Earnings
Plaintiff argues that the :\l .J erred in his refusal “to accept that post—onset earnings \\ere

due to a severance package despite the statement by the employer and absolutely no evidence to
the contrary.” (P1. Mem. at 12.) 1)efendant responds that “[w]hether or not plaintiff engaged in
[substantial gainful activity] through the first quarter of 2012 as the AU found or stopped
working in June 2011 and subsequently received income as part of a ‘buy out termination offer
as plaintiff claims, is not material, as the AU fUund in the alterative that plaintiff

as not

disabled even assuming he had not performed l substantial gainful actix itvl since June 2(11
I )e f. Mem at 23-24) internai citations omitted.
If the ;\li ‘s determination of plaintiffs disahilit\ changes on remand, the A! ..J should
analyze plaintiffs post-June 2011 income in light of Mr. Ileneghan and plaintiffs statements
that the payments were part of a severance package.

Case 7:15-cv-03921-CS-PED Document 17 Filed 08/15/16 Page 34 of 34

VI, CONCLUSION
l:or the reasons set forth below. I respectfully recommend that defrndant’s motion he
DENIED. and that plaintifCs motion he CRANTEI) to the extent that the case is REMANDEI)
pursuant to 42 U.S.C.

405(g). sentence thur. Oar further administrative proceedings.

Dated: August 15, 2016
White Plains. New York
Respectfully submitted,

Paul lh Davison,
NOTICE
Pursuant to 28 U.S.C.

§ 636(b)(1) and Rule 72(h) of the Federal Rules of Civil

Procedure, the parties shall have fourteen (1 4) days from service of this Report and
Recommendation to serve and tile written objections. See also Fed, R. Civ. P. 6(a). Such
objections, if any, along with any responses to the objections, shall be filed with the Clerk of the
Court with extra copies delivered to the chambers of the Honorable Cathy Seibel. at the
Ilonorable Charles F. I3rieant. Jr. Federal Building and United States Courthouse, 300 Quarropas
Street, White Plains, New York 10601. and to the chambers of the undersigned at the same
address.
Failure to file timely objections to this Report and Recommendation will preclude later
appellate review of any order of judgment that will be entered,
Requests for extensions of time to tile objections must he made to Judge Seihel.