Rymer v. Commissioner of Social Security

Filing 22

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 12 Motion for Judgment on the Pleadings; denying 20 Motion for Judgment on the Pleadings; and reversing and remanding solely for calculation and payment of benefits. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 10/20/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AMY LYNN RYMER,
No. 1:12-CV-0644(MAT)

Plaintiff,

DECISION AND ORDER

v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.
INTRODUCTION

Plaintiff Amy Lynn Rymer (“Plaintiff”), who is represented by
counsel, brings this action pursuant to the Social Security Act
(“the

Act”),

seeking

review

of

the

final

decision

of

the

Commissioner of Social Security (“the Commissioner”) that Plaintiff
was not entitled to Disability Insurance Benefits (“DIB”) under
Title II of the Act or eligible for Supplemental Security Income
(“SSI”) under Title XVI of the Act. This Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Presently before the Court are the parties’ motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. Dkt.##12, 20. For the reasons that
follow, Plaintiff’s motion is granted, and the Commissioner’s
cross-motion is denied.

BACKGROUND
Plaintiff filed an application for SSI on January 22, 2008,
and an application for DIB on February 8, 2008, alleging disability
since February 1, 2007, due to bipolar disorder, depression, and
anxiety. T.136-40, 166.1 Following the initial denial of those
applications, Plaintiff requested a hearing, which was held via
videoconference before ALJ Jennifer Whang on November 2, 2010.
T.12-34.
Considering the case de novo and applying the five-step
analysis

contained

in

the

Social

Security

Administration’s

regulations,2 the ALJ made the following findings: (1) Plaintiff
had not engaged in substantial gainful activity since February 1,
2007, her alleged disability onset date; (2) Plaintiff’s bipolar
disorder, anxiety, post-traumatic stress disorder (“PTSD”), and
personality disorder were severe impairments; (3) her impairments
did not meet or equal a listed impairment; and she retained the
residual

functional

capacity

(“RFC”)

to

perform

work

at

all

exertional levels, except that she was limited to simple, routine,
and repetitive tasks, required a low-stress job, and should have
only occasional direct interaction with others; (4) Plaintiff could
not return to her past relevant work; and (5) Plaintiff could

1

Citations to “T_.” refer to pages in the certified copy of the
administrative transcript, filed by the Commissioner in connection with her
answer to the complaint.
2

See 20 C.F.R. §§ 404.1520, 416.920.

-Page 2-

perform work that existed in significant numbers in the national
economy. T.42-49.
The ALJ’s determination became the final decision of the
Commissioner when the Appeals Council denied review on May 8, 2012.
T.1-4. Plaintiff timely commenced the instant action. Dkt. #1.
DISCUSSION
I.

General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to

hear claims based on the denial of Social Security benefits.
Section 405(g) provides that the District Court “shall have the
power to 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 the
cause for a rehearing.” 42 U.S.C. § 405(g) (2007). The section
directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
When

determining whether

the

Commissioner’s

findings

are

supported by substantial evidence, the Court's task is “to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits
the scope of the Court’s review to two inquiries: determining

-Page 3-

whether the Commissioner’s findings were supported by substantial
evidence in the record as a whole, and whether the Commissioner’s
conclusions

are

based

upon

an

erroneous

legal

standard.

Green–Younger v. Barnhart, 335 F.3d 99, 105–06 (2d Cir. 2003).
II.

Relevant Medical Evidence
Plaintiff

was

treated

at

Niagara

Family

Health

Center

beginning in 2007. On March 30, 2007, Plaintiff reported that she
had been diagnosed with bipolar disorder, and she complained of
increased depression, suicidal thoughts, and uncontrolled anger.
T.284. She had been prescribed Effexor but it caused her to have
difficulty sleeping. T.287. She was advised to take Effexor as
early as possible in the morning, and Elavil was prescribed to help
her sleep. Id.
On July 3, 2007, Plaintiff complained of worsening depression.
She expressed suicidal thoughts, stating that she did not want to
live anymore. Plaintiff was crying, had scratches/lacerations on
her forearms, and appeared depressed and disheveled. T.197. The
nurse practitioner found that Plaintiff was a threat to herself and
required a higher level of care for stabilization. Id. Plaintiff
was transported by ambulance to Buffalo General Hospital, where she
remained for nine days in the inpatient unit. T.274-75. Upon
discharge, Plaintiff was prescribed Elavil, Depakote, and Celexa,
and Effexor was discontinued. T.275. She was to follow up with Lake
Shore Behavioral Health (“Lake Shore”). Id.

-Page 4-

On July 16 and 31, 2007, Plaintiff sought treatment at Lake
Shore, where she reported mood instability, irritability, periods
of depression, anger outbursts, “cutting” and suicidal gesturing,
and dissociation since age 16. Over the past three years, her
symptoms had been worsening, and she had difficulty maintaining
consistent employment as a result. T.212. Id. her diagnoses were
bipolar disorder, not otherwise specified; rule out post-traumatic
stress disorder and personality disorder; and rule out borderline
personality disorder. T.216. Her Global Assessment of Functioning
Score (“GAF”) was 54, indicating moderate symptoms (e.g., flat
affect and circumlocutory speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers).3 American
Psychiatric

Ass’n

Diagnostic

&

Statistical

Manual

of

Mental

Disorders (“DSM-IV”) at 34 (4th ed. 2000).
In August 2007, Plaintiff went to Erie County Medical Center
(“ECMC”), stating that she wanted to hurt herself following an
argument with her boyfriend. T.380-97. She denied lethality, and
stated that she did not believe her current Depakote dosage was

3
The GAF scale indicates the clinician’s overall judgment of a person’s
level of psychological, social, and occupational functioning. The GAF scale
ranges from 1 to 100, with a score of 1 being the lowest and 100 being the
highest. GAF is no longer used by Volume V of the DSM, however, Volume IV of
the DSM was in effect at the time of Plaintiff’s treatment. See Vanterpool v.
Colvin, No. 12–CV–8789, 2014 WL 1979925, at *2 n. 2 (S.D.N.Y. May 15, 2014)
(citation omitted).

-Page 5-

working. A mental status examination was unremarkable, and she was
prescribed Klonopin for anxiety. T.386-88.
The next day, Plaintiff underwent a comprehensive behavioral
health assessment at Lake Shore. She reported hearing voices, had
superficially cut her forearms in June and July of 2007, and had
experienced suicidal and homicidal thoughts in the past. T.226. She
was

compliant

with

treatment

medications.

T.227.

She

had

a

depressed mood; her affect was appropriate but exaggerated; her
remote memory and insight were fair; and her judgment was impaired.
T.228-30.
In
anxiety,

December

2007,

depression,

Plaintiff
elevated

exhibited

mood

and

moderately

severe

grandiosity;

mild

suicidality and guilt; very mild hostility, suspiciousness, blunted
affect,

emotional

withdrawal,

and

distractibility;

and

no

hallucinations, unusual thought content, bizarre behavior, self
neglect,

disorientation,

motor

retardation

or

hyperactivity,

tension, or uncooperativeness. T.236. Plaintiff was noted to be
fairly stable and not in distress. However, Plaintiff exhibited
depressive thought content during a January 2008 visit to Lake
Shore. T.196, 244-45.
On

January

28,

2008,

Plaintiff’s

treating

psychiatrist,

Dr. Hong Rak Choe, provided a functional assessment. He stated that
her diagnoses were bipolar and borderline personality disorder, and
that she exhibited symptoms of anhedonia, appetite disturbance with

-Page 6-

change in weight, sleep disturbance, decreased energy, feelings of
guilt or

worthlessness,

thoughts of

suicide,

difficulty

irritability,

concentrating
agitation,

or

racing

thinking,
thought,

euphoria, grandiosity, and depressive episodes. T.203-210. Dr. Choe
observed that Plaintiff had been hospitalized due to decompensation
and had a history of self-mutilation. T.206-07. She had been
involved in abusive relationships and had flashbacks of past
trauma. She reported being fired from a job due to inability to
keep a schedule, and her depressive symptoms kept her home-bound
and isolated. T.207, 210-11. Dr. Choe opined that Plaintiff had
moderate restrictions in her activities of daily living and marked
difficulties in maintaining social functioning. T. 204, 208. He
also found that she had deficiencies of concentration, persistence,
or pace resulting in frequent failure to complete tasks in a timely
manner, and that she experienced repeated episodes of deterioration
or decompensation in work or work-like settings. T. 204-05, 208-09.
She was extremely impaired in her ability to perform activities
within a schedule, maintain regular attendance, and be punctual
within customary tolerances. Plaintiff was moderately limited in
nearly every other category. T.208-10.
Plaintiff underwent consultative psychiatric evaluation on
April 10, 2008, with Robert Hill, Ph.D. T.249. Dr. Hill noted that
Plaintiff’s mother had driven her to the evaluation. Id. Plaintiff
reported being suspended from past work due to yelling at her boss

-Page 7-

and

being fired for failing to show up for work. Id. She had been

receiving mental health treatment from Lake Shore since July 2007,
and was currently taking Depakote and Celexa. T.250. She reported
that the medications somewhat improved her symptoms of depression,
mania, and anxiety, but did not resolve them. Plaintiff told
Dr. Hill that she lived with her two children and boyfriend, and
could cook, clean, do laundry, take care of personal hygiene, and
shop, but avoided going shopping alone and went with her mother.
T.253. Plaintiff reported having no hobbies. During periods of
elevated mood she would not sleep for two or three days. T.251.
Dr. Hill’s noted that Plaintiff had slightly disheveled hair
but otherwise was neat with adequate hygiene. T.252. Her mood was
somewhat dysthymic, her memory skills were mildly impaired due to
some anxiety about the evaluation, and she had average to below
average cognitive

functioning.

T.252-53. Insight

and

judgment

“appeared to be fair.” T.253. Dr. Hill noted that Plaintiff may”
have trouble relating adequately with others and dealing with
stress.

T.253.

She

may

have

vocational

difficulties

due

to

distractibility, fatigue, lack of motivation, depression, anxiety,
borderline

personality

features,

and

symptoms

of

her

bipolar

disorder. Id. She may do better with treatment and in a “low
stress, low contact environment”. Id. Dr. Hill concluded that
despite her impairments caused by her symptoms, Plaintiff could
follow and understand simple instructions, and was capable of

-Page 8-

performing some simple tasks independently with supervision. Id.
Diagnoses were bipolar disorder, not otherwise specified, and
personality disorder with borderline features. T.249.
On

July

22,

2008,

State

Agency

psychological

consultant

M. Mohan, Ph.D., reviewed the evidence and performed a Psychiatric
Review Technique. T. 255-68. Dr. Mohan found that Plaintiff had
bipolar disorder, PTSD, and personality disorder resulting in mild
restrictions
maintaining

in

daily

social

activities;

functioning;

moderate
and

mild

difficulties

in

difficulties

in

maintaining concentration, persistence, or pace; with one or two
episodes of deterioration lasting for an extended duration. Id. As
part of his functional assessment he noted that Plaintiff’s memory,
attention, and concentration were somewhat limited; she was able to
take care of her basic personal needs; and her social functioning
“was of some concern.” T.271. Plaintiff retained the ability to
follow simple verbal directions and maintain focus on simple tasks
in a low-demand, low-contact work environment. Id.
In July 2009, Plaintiff reported to staff at Lake Shore that
she was having symptoms of psychosis, difficulty controlling her
anxiety, and difficulty using coping skills and managing family
stressors. T.345-50. She stated she had difficulty with daily
activities
increased

and

concentration,

anxiety and

fear of

sound[ed] like agoraphobia.”

and

reported

leaving

T.350.

-Page 9-

the

new
home

symptoms
which

of

“which

On December 23, 2009, Plaintiff went to ECMC, again reporting
suicidal ideation. T.406. She was diagnosed with borderline IQ,
borderline personality traits, and adjustment disorder. T.407-08.
Her GAF score at that time was 41-50.
III. Non-Medical Evidence
At the time of her hearing, Plaintiff was 31 years-old with a
GED. She previously had worked as a bill collector, school bus
driver, gas station attendant, cashier, and line worker. T.21, 136,
158-65, 168. She testified that she had been terminated from her
last job because she did not collect enough debts. T.21. Plaintiff
did not believe she could perform a full-time job because she could
not deal with people, would not be able to meet performance
expectations, and would not be able to use public transportation to
get to a job. T.28.
Plaintiff testified that she lived in an apartment with her
two daughters, ages 5 and 11. She had a driver’s license, but did
not drive because she did not like to go out in public. T.20. She
did not take public transportation. Id. Her daily routine consisted
of getting up in the morning and visiting with her downstairs
neighbor, and getting her daughters ready for school and onto the
bus. After that, she would read, clean the house, prepare dinner,
or crochet on a good day. T.24. If she was having a bad day,
however, she would sleep. Id. Plaintiff testified that she had bad
days every couple of days. Id.

-Page 10-

Plaintiff had to have a friend take her to her appointments
and do her grocery shopping for her. Id. She had been trying to
take short walks outside, but could only walk the distance of about
two houses before she needed to return home because she became too
anxious. She told the ALJ that her legs would shake, her breathing
would get heavy, and she thought people were talking about her.
T.25.
Over the past year and a half, her problems going out in
public had gradually worsened. T.22. She received mental health
treatment at Lake Shore, seeing her counselor every two weeks and
her psychiatrist
treatment

was

once

going

a month.

“pretty

T.22-23.

good,”

and

She
that

stated
she

that her

was

taking

Depakote, Celexa, and Abilify, which helped “somewhat” but caused
sleepiness. Id. Plaintiff said she had been diagnosed with bipolar
disorder, and she experienced depressive and manic symptoms. T.2527. While on a “high” she felt “on top of the world,” but could not
complete tasks. During a “low”, she would sleep all day. T.26-27.
She testified that she sometimes intentionally hurt herself, and
had cut her arms two months before. During a depressive episode
within the past two weeks, she felt as though she “didn’t want to
be here anymore.” T.28-29.
The ALJ also heard testimony from Vocational Expert (“VE”)
Bassey Duke. T.31-33. The ALJ posed a hypothetical involving a
claimant of the same age and with the same education and work

-Page 11-

experience as Plaintiff, with no exertional limitations. This
hypothetical

individual

was

limited

to

simple,

routine,

and

repetitive tasks; required a low-stress job (defined as having only
occasional decision-making and occasional changes in the work
setting); and should only have occasional direct interaction with
the public, co-workers, and supervisors. T.31. The VE responded
that this person could not perform any of Plaintiff’s past work,
but could perform unskilled, light work, including the jobs of mail
clerk, stock checker, and assembler helper, all of which existed in
significant numbers in the national economy. T.30.
IV.

Plaintiff’s Contentions
A.

Failure to Properly Apply the Treating Physician Rule

Plaintiff argues the ALJ failed to properly apply the treating
physician

rule,

and

erroneously

assigned

the

opinion

of

her

treating psychiatrist, Dr. Choe, only “slight weight”. See Pl. Mem.
(Dkt.# 12–1) at 11–15.
A treating physician’s opinion is entitled to “controlling
weight” when it is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
substantial

evidence

in

[the]

case

record.”

20

C.F.R.

§§ 404.1527(c)(2), 416.927(c)(2); see also Rosa v. Callahan, 168
F.3d 72, 78–79 (2d Cir. 1999); Schisler v. Sullivan, 3 F.3d 563,
567 (2d Cir. 1993). When an ALJ refuses to assign a treating
physician’s opinion controlling weight, she must consider a number

-Page 12-

of factors to determine the appropriate weight to assign, including
(1) the frequency of the physician’s examination of the claimant,
and the length, nature and extent of the treatment relationship;
(2) the evidence in support of the treating physician’s opinion;
(3) the consistency of the opinion with the record as a whole;
(4) whether the opinion is from a specialist; and (5) other factors
brought to the ALJ’s attention that tend to support or contradict
the opinion. See 20 C.F.R. § 404.1527(c). “Failure to provide ‘good
reasons’ for not crediting the opinion of a claimant’s treating
physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999) (citation omitted); see also Halloran, 362 F.3d
at 32.
In the present case, Dr. Choe’s detailed medical source
statement should have been given controlling weight with regard to
the nature, extent and severity of Plaintiff’s mental impairments.
Dr. Choe is a specialist in psychiatry who had treated Plaintiff on
a consistent basis from July 6, 2007, to January 17, 2008, when he
completed his medical source statement. T.203-207, 208-211. Thus,
his opinion was supported by clinical observations of Plaintiff
gained during multiple examinations over six months of treatment.
See T.232, 241, 242, 245, 246, 320-322, 325-327, 355-377. In
addition, Dr. Choe’s opinion is consistent with other substantial
evidence in the record. For example, when Plaintiff was evaluated
at ECMC on December 3, 2009, her GAF was quite low (41-50),

-Page 13-

indicating serious symptoms or serious impairments in social,
occupational,
Consultative
significant

or

school

examiner

Dr.

psychological

functioning.
Hill

See

agreed

impairments

DSM–IV–TR,

that

Plaintiff

(borderline

p.34.
had

personality

disorder, depression, anxiety and bipolar disorder), although he
appeared to underestimate the effect of her resultant symptoms
(depression, anxiety, distractibility, fatigue, lack of motivation,
borderline personality features), stating that they “may” result in
difficulties in coping with stress and a normal work environment.
Even the agency review psychiatrist acknowledged, after reviewing
the record, that Plaintiff’s social functioning “was of some
concern”. T.271.
The ALJ, however, only gave “slight weight” to Dr. Choe’s
opinion because his functional assessment of Plaintiff reflected
observations from 2007 and 2008, when Plaintiff was recovering from
her

July

2007

subsequent

decompensation

evidence

consisting

episode.

According

of medication

to

the

monitoring

ALJ,
notes

demonstrated that the RFC assessment Dr. Choe issued in January of
2008 was no longer accurate because by that point, Plaintiff was
fairly stable with current medication. There is, however, no
opinion

evidence

cited

in

support

of

the

ALJ’s

conclusion.

Furthermore, the record indicates that Plaintiff continued to
exhibit mood swings, poor judgment, difficulty in performing daily
activities and maintaining concentration, and began to exhibit new

-Page 14-

symptoms of agoraphobia. Also, she sought emergency treatment for
suicidal ideation the following year in 2009. T.350, 402-14. Thus,
the

ALJ’s

reasons

for

discounting

Dr.

Choe’s

medical

source

statement were not supported either by a competent opinion from
another acceptable medical source or objective evidence in the
record. Her reasons for discounting Dr. Choe’s opinion

cannot be

said to constitute “good reasons” as required by the regulations.
See Martinez v. Colvin, No. 12–CV–05713, 2014 WL 4467709, at *12
(S.D.N.Y. June 27, 2014) (“Reasons that are conclusory fail the
‘good reasons’ requirement.”) (citing
Soc.

Sec.,

361

F.

App’x

197,

Gunter v. Commissioner of

199-200

(2d

Cir.

2012)

(ALJ’s

statement that treating physician’s opinion because it was “not
consistent with substantial evidence” fell “far short of the ALJ’s
duty to provide ‘good reasons’”) (citation omitted)).
B.

Erroneous Finding Regarding Listing 12.04

The ALJ found that Plaintiffs’ impairments were not of the
severity to meet or equal Listing 12.04 (Affective Disorders).
T44-45. Plaintiff argues that in making this determination, the ALJ
did not reference or evaluate the opinion of treating physician
Dr. Choe, who opined that Plaintiff did meet the criteria for this
listing. T.203-05.
Section 12.04 defines affective disorder as an impairment,
stating that it is “[c]haracterized by a disturbance of mood,
accompanied by a full or partial manic or depressive syndrome.”

-Page 15-

20 C.F.R. Pt. 404, Subpt. P, App’x 1, 12.04. In order to meet
Listing

12.04,

the

claimant’s

impairment

must

satisfy

the

requirements of both Paragraphs A and B, or of Paragraph C. Id.
Paragraph A is met when the claimant suffers from depressive
syndrome
thoughts,

and

at

least

anhedonia,

four

sleep

listed

symptoms

disturbance,

(e.g.,

feelings

or

suicidal
guilt

or

worthlessnes, difficulty concentrating or thinking, and decreased
energy); or manic syndrome; or bipolar syndrome. See 20. C.F.R. Pt.
404, Subpt. P, App. 1, § 12.04(A)(1)(a)-(i), (2), (3).
An impairment satisfies the requirements of Paragraph B if
there are at least two of the following: marked restriction of
activities of daily living; marked difficulties in maintaining
social

functioning;

marked

difficulties

in

maintaining

concentration, persistence, or pace; and/or repeated episodes of
decompensation, each of extended duration. Id., § 12.04(B)(1)-(4).
As

discussed

further

below,

had

the

ALJ

properly

considered

Dr. Choe’s opinion and assigned it the appropriate weight, a
finding of disability was required.
In comparing Plaintiff’s symptoms and limitations to the
criteria in Listing 12.04, the ALJ found that Plaintiff had mild
restrictions in activities of daily living; moderate difficulties
in social functioning; and moderate difficulties in maintaining
concentration, persistence, or pace. T.44. She further found that
Plaintiff had experienced one to two episodes of decompensation,

-Page 16-

each of extended duration. Id. With regard to social functioning,
the ALJ found that Plaintiff had only moderate difficulties on the
basis that there was “no indication in the record that Plaintiff
had been diagnosed with agoraphobia or panic attacks” to support
Plaintiff’s claims of difficulty functioning in public. T.44. This
conclusion is not supported by substantial evidence in the record,
which is replete with references to Plaintiff’s isolative and
anxious behavior. Plaintiff reported agoraphobic symptoms to her
physicians, who observed her to be socially withdrawn. Plaintiffs
consistently testified and reported in her disability forms that
she did not drive, did not take public transportation, did not
grocery

shop,

had

to

have

someone

take

her

to

her

medical

appointments, and could only walk several houses away from her
apartment before experiencing intense anxiety. T.24-25, 151-55,
206, 231, 236, 251, 342, 350. Moreover, the ALJ did not discuss how
Plaintiff’s other documented symptoms, including poor judgment,
irritability, agitation, racing thoughts, and manic-depressive
behavior

(occasionally

resulting

in

suicidal

thoughts)

detrimentally affected her social functioning.
As for episodes of decompensation, the ALJ downplayed the
record evidence, finding that Plaintiff’s mental condition improved
significantly since her discharge from inpatient treatment at
Buffalo General in 2007, that her functioning improved with the
administering of new medications, and that upon discharge Plaintiff

-Page 17-

showed only moderate symptoms or impairments according to her
assigned GAF of 60. T.44. The ALJ failed to mention, however, that
Plaintiff testified to cutting her arms two months prior to the
disability hearing in November 2010, and, only two weeks prior to
the hearing, was having suicidal ideation. T.28-29, 44. Nor did the
ALJ

discuss

Plaintiff’s

evaluation

at

the

emergency

room

in

December 2009, when her GAF score was 41-50, indicating serious
symptoms or any serious impairment in social, occupational, or
school functioning. T.408. It is also significant that Plaintiff
was

prescribed

multiple

medications

for

her

various

mental

disorders throughout the period of record, including Depakote,
Celexa, Elavil, Vistaril, which, when adjusted or modified, caused
symptom flares indicative of decompensation. T.247-48.
Treating psychiatrist Dr. Choe, whose opinion the Court has
found to be entitled to controlling weight, diagnosed Plaintiff
with both bipolar disorder and borderline personality disorder. He
further opined that Plaintiff suffered from the symptoms in Listing
§ 12.04 paragraph (A)(1) (depressive syndrome) and paragraph A(2)
(manic syndrome). With regard to the paragraph B criteria, Dr. Choe
found that Plaintiff had moderate restrictions in activities of
daily

living;

functioning;

marked
and

difficulties

marked

in

deficiencies

maintaining
of

social

concentration,

persistence, or pace that would result in frequent failure to
timely complete tasks. Dr. Choe also stated that Plaintiff also

-Page 18-

experienced repeated episodes of deterioration or decompensation in
work or work-like settings. T.204-06, 208-10. Based on Dr. Choe’s
medical source statement, and the objective medical evidence in the
record, Plaintiff has a mood disturbance, accompanied by a manicdepressive syndrome. It is of the required level of severity to
meet Listing 12.04 because, based on Dr. Choe’s opinion and the
objective medical evidence, the requirements in both
paragraphs A and B are satisfied.
C.

Erroneous RFC Assessment

Plaintiff contends that the ALJ’s RFC assessment was not
supported by substantial evidence and was marred by her error in
evaluating the treating psychiatrist’s opinion. The ALJ concluded
that Plaintiff was capable of working at all exertional levels with
several non-exertional limitations: She is limited to simple,
routine, and repetitive tasks; requires a low-stress job; and
should only have occasional direct interaction with the public,
coworkers, and supervisors. T.45. The ALJ stated that this RFC was
“formulated based on the medical opinions, treating and evaluative
evidence in the record, and the claimant’s testimony to the extent
they were supported by the record as a whole.” T.47. The opinions
relied upon by the ALJ (the non-examining State Agency review
consultant, Dr. Mohan, and the consultative examiner, Dr. Hill)
were based upon an incomplete medical record; approximately half of
the

record

was

submitted

after

their

-Page 19-

opinions

were

issued,

including Plaintiff’s 2009 emergency room visit. T.45; 273-414.
There is no basis for the ALJ to have concluded that Plaintiff’s
functional

assessment

had

improved

since

2008,

when

treating

psychiatrist Dr. Choe issued his medical source statement in 2008.
The ALJ

thus

arbitrarily

substituted

her

own

judgment

for

a

competent medical opinion. Rosa v. Callahan, 168 F.3d 72, 78–79 (2d
Cir. 1999).
Furthermore, the ALJ assigned too much relative weight to the
opinions provided by consultative examiner Dr. Hill, who only saw
Plaintiff on one occasion; and the non-examining State Agency
review consultant, who only reviewed Plaintiff’s medical records,
which were incomplete. See Cruz v. Sullivan, 912 F.2d 8, 13
(2d

Cir.

1990)

(“[I]n

evaluating

a

claimant’s

disability,

a

consulting physician’s opinions or report should be given limited
weight.”) (citation omitted); see also Torres v. Bowen, 700 F.
Supp. 1306, 1312 (S.D.N.Y. 1988) (“[C]onsultative exams are often
brief,

are

generally

performed

without

benefit

or

review

of

claimant’s medical history and, at best, only give a glimpse of the
claimant on a single day.”).
Dr. Choe, in contrast, specifically assessed Plaintiff’s workrelated abilities with the benefit of having observed Plaintiff
during a months-long treatment relationship. He found “marked”
limitations in Plaintiff’s abilities to understand and remember
detailed instructions; carry out detailed instructions; maintain

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attention

and

concentration

for

extended

periods;

sustain

an

ordinary routine without special supervision; work in coordination
with and proximity with others without being distracted by them;
accept instructions and respond appropriately to criticism from
supervisors; get along with coworkers or peers without distracting
them or exhibiting behavioral extremes; accept criticism from
supervisors; get along with coworkers or peers without distracting
them or exhibiting behavioral extremes; and set realistic goals or
make plans independently of others. T.205-206. Dr. Choe rated as
“extremely

limited”

Plaintiff’s

ability

to

perform activities

within a schedule, maintain regular attendance, and be punctual
within customary tolerances. T.205.
Thus, in addition to his opinion that Plaintiff’s impairments
were severe enough to meet Listing 12.04, Dr. Choe identified
numerous

functional

limitations

caused

by

her

psychological

impairments that preclude Plaintiff from performing the mental
demands of unskilled work. See Peck v. Astrue, No. C 09–2600 SBA,
2010 WL 3790597, at *13 (N.D. Cal. Sept. 27, 2010) (“[E]ven
unskilled work has basic mental demands. Thus, if a claimant is
unable to meet those basic demands, [s]he is deemed disabled.”)
(citing SSR 85-15, 1985 WL 56857, *4 (S.S.A. 1985)).
V.

Remedy
Under 42 U.S.C. § 405(g), the district court has the power to

affirm, modify, or reverse the ALJ’s decision with or without

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remanding for a rehearing. Remand for additional fact development
may be appropriate if “there are gaps in the administrative record
or the ALJ has applied an improper legal standard.” Rosa v.
Callahan, 168 F.3d 72, 82–3 (2d Cir. 1999). Because the record
persuasively demonstrates Plaintiff’s disability, Parker v. Harris,
626 F.2d 225, 235 (2d Cir. 1980), and because there is no reason to
conclude

that

the

additional

evidence

might

support

the

Commissioner’s claim that Plaintiff is not disabled, Butts v.
Barnhart, 388 F.3d 377, 385–86 (2d Cir. 2004), the standard for
directing a remand for calculation of benefits has been met.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Dkt. #12) is granted, and the Commissioner’s crossmotion for judgment on the pleadings (Dkt. #20) is denied. It is
hereby ordered that this matter is reversed and remanded to the
Commissioner solely for the calculation and payment of benefits.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
October 20, 2014

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