Harris v. Colvin

Filing 11

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 5 Plaintiff's Motion for Judgment on the Pleadings; denying 9 Motion for Judgment on the Pleadings; and reversing and remanding this matter for calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/25/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MALEESHA HARRIS,
Plaintiff,

No. 6:15-cv-06104(MAT)
DECISION AND ORDER

-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Maleesha Harris (“Plaintiff”), represented by counsel, brings

this action pursuant to Title XVI of the Social Security Act,
challenging the final decision of the Acting Commissioner of Social
Security

(“the

Commissioner”)

denying

her

application

for

Supplemental Security Income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). For the reasons
discussed below, the Commissioner’s decision is reversed, and the
matter is remanded for the calculation and payment of benefits.
II.

Procedural Status
Plaintiff filed for SSI on February 27, 2012, alleging that

she had become disabled on September 5, 2011, due to chronic
obstructive pulmonary disease (“COPD”), neck and arm pain, bipolar
disorder,

asthma,

gastroesophageal

reflux

disease

(“GERD”),

anxiety, insomnia, and carpal tunnel syndrome (“CTS”) in both

hands. T.10, 156.1 After her claim was denied, Plaintiff requested
a hearing, which was conducted via videoconference on April 16,
2013, by administrative law judge William M. Manico (“the ALJ”).
Plaintiff

appeared

with

her

attorney

and

testified,

as

did

impartial vocational expert Howard S. Feldman (“the VE”). On
June 25, 2013, the ALJ issued a decision finding Plaintiff not
disabled.

T.10-33.

The

Appeals

Council

subsequently

denied

Plaintiff’s request for review, making the ALJ’s decision the final
decision of the Commissioner. This timely action followed.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. In
connection with their motions, the parties have summarized the
administrative transcript in their briefs, and the Court adopts and
incorporates these factual summaries by reference. The record
evidence will be discussed in further detail below, as necessary to
the resolution of the parties’ contentions.
III. The ALJ’s Decision
The

ALJ

followed

the

five-step

sequential

evaluation

promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 416.929(a). At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since
February 27, 2012, the application date.

1

Numbers preceded by “T.” refer to pages from the administrative transcript,
submitted by Defendant as a separately bound exhibit.

-2-

At

step

two,

the

ALJ

determined

that

Plaintiff

has

the

following “severe” impairments: umbilical hernia, brachioplexus
stretch, asthma, anxiety disorder, depressive disorder, and bipolar
disorder. T.12. At step three, the AL found that Plaintiff “does
not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments”
because

“[n]o

treating

or

examining

physician

has

indicated

findings that would satisfy the criteria of any listed physical
impairment.” T.13. The ALJ specifically considered two listed
impairments, Listing 12.04 (Affective Disorders) and Listing 12.06
(Anxiety Disorders). With regard to the “Paragraph B” criteria, the
ALJ found that Plaintiff has “mild” restrictions in activities of
daily living and in social functioning; “moderate” difficulties in
maintaining

concentration,

persistence

or

pace;

and

has

not

experienced any episodes of decompensation. The ALJ also determined
that the “Paragraph C” criteria were not satisfied, insofar as
Plaintiff not experienced, e.g.,

episodes of decompensation of

extended duration.
Next,

the

ALJ

assessed

Plaintiff’s

residual

functional

capacity (“RFC”) and found that she has the RFC to perform light
work as defined in 20 C.F.R. § 416.967(b), with the following
exceptions:
[She]
is
limited
to
walking
continuously
for
approximately 15 minutes. [She] may only occasionally
climb ramps or stairs, or crawl. [She] may frequently
stoop, kneel, crouch, or balance. [She] may never climb
-3-

ladders, ropes, or scaffolds. [She] should avoid extremes
of cold, heat and humidity. [She] should avoid
concentrated exposure to dust, fumes, odors, gases etc.
[She] should avoid exposure to hazards. [She] retains the
mental [RFC] to perform simple unskilled work involving
simple instructions which is relatively low stress in
nature. [She] should be allowed a regular work break
approximately every 2 hours.
T.15 (footnotes omitted).
At step four, the ALJ noted that Plaintiff has no past
relevant work per the earnings record, and was 33 years-old on the
application date, with at least a high school education and the
ability to communicate in English. T.28. Because Plaintiff has no
past relevant work, the ALJ found, transferability of job skills
was not material to the disability determination.
At step five, the ALJ relied on the VE’s testimony to find
that, considering Plaintiff’s age, education, work experience, and
RFC, there are jobs existing in significant numbers in the national
economy that she can perform. Specifically, the ALJ cited the VE’s
testimony that a person with Plaintiff’s RFC and vocational profile
could perform the requirements of such representative occupations
as cashier and mail clerk. T.28-29. Accordingly, the ALJ entered a
finding of not disabled.
IV.

Scope of Review
When considering a claimant’s challenge to the decision of the

Commissioner denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
-4-

See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v.

Heckler,

748

F.2d

109,

112

(2d

Cir.

1984)).

Thus,

the

Commissioner’s “[f]ailure to apply the correct legal standards is
grounds for reversal.” Townley, 748 F.2d at 112; see also, e.g.,
Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
V.

Discussion
A.

Legal and Factual Errors in Weighing the Opinion of
Treating Psychiatrist Dr. Spurling

Plaintiff

argues

that

the

ALJ

misapplied

the

treating

physician rule and erroneously discounted the opinions of her
treating psychiatrist, Ronald Spurling, M.D.
In the Second Circuit, “the treating physician rule generally
requires deference to the medical opinion of a claimant’s treating
physician[.]” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)
(per curiam) (internal and other citations omitted). A corollary to
the treating physician rule is the so-called “good reasons rule,”
which is based on the regulations specifying that “the Commissioner
‘will always give good reasons’” for the weight given to a treating
-5-

source opinion.

Halloran,

362

F.3d

at

32

(quoting

20

C.F.R.

§ 404.1527(d)(2); citing 20 C.F.R. § 416.927(d)(2); Schaal v.
Apfel, 134 F.3d 496, 503-04 (2d Cir. 1998)). “Those good reasons
must be ‘supported by the evidence in the case record, and must be
sufficiently specific . . . .’” Blakely v. Commissioner of Social
Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Social Security
Ruling (“SSR”) 96–2p, 1996 WL 374188, at *5 (S.S.A. July 2, 1996)).
The “good reasons” rule exists to “ensur[e] that each denied
claimant receives fair process[.]” Rogers v. Commissioner of Social
Sec., 486 F.3d 234, 243 (6th Cir. 2007). Accordingly, an ALJ’s
“‘failure to follow the procedural requirement of identifying the
reasons for discounting the opinions and for explaining precisely
how those reasons affected the weight’ given ‘denotes a lack of
substantial evidence, even where the conclusion of the ALJ may be
, 581 F.3d at 407 (quoting Rogers, 486 F.3d at 243; emphasis in
Blakely).
Where, as here, an ALJ declines to accord controlling weight
to a treating physician’s opinion, the ALJ “must consider various
‘factors’ to determine how much weight to give to the opinion[,]”
id.

(quoting

20

C.F.R.

§

404.1527(d)(2)),

such

as

“(i)

the

frequency of examination and the length, nature and extent of the
treatment

relationship;

(ii)

the

evidence

in

support

of

the

treating physician’s opinion; (iii) the consistency of the opinion
with the record as a whole; (iv) whether the opinion is from a

-6-

specialist;

and (v) other factors brought to the Social Security

Administration’s attention that tend to support or contradict the
opinion.’” Id. (quoting 20 C.F.R. § 404.1527(d)(2)).
There is no doubt that Dr. Spurling, who has been Plaintiff’s
psychiatrist since March 30, 2011, T.736, qualifies as a “treating
physician.” See Arnone v. Bowen, 882 F.2d 34, 41 (2d Cir. 1989)
(“Whether the ‘treating physician’ rule is appropriately applied
depends

on

‘the

nature

of

the

ongoing

physician-treatment

relationship.”) (quoting Schisler v. Heckler, 851 F.2d 43, 45
(2d Cir. 1988)). Indeed, the Commissioner does not dispute that
Dr.

Spurling

qualifies

as

a

treating

source.

Given

his

specialization in psychiatry, Dr. Spurling is well-qualified to
opine on the nature and extent of the limitations resulting from
Plaintiff’s mental impairments.
Dr. Spurling issued a Medical Source Statement dated March 9,
2012, see T.328-34, indicating that he treats Plaintiff for bipolar
disorder and anxiety disorder with elements of panic disorder, and
that he had last seen her on February 21, 2012. In the attached
office treatment notes, Dr. Spurling stated that Plaintiff reported
worsening symptoms of depression over at least the past 5 to
6 years, “clearly” with a history of psychotic symptoms, though
such symptoms were currently not present. Dr. Spurling noted that
Plaintiff “clearly describe[d] symptoms consistent with hypomanic
periods,” and opined that her symptom profile “best fits a bipolar

-7-

type II disorder[,]” which “would be consistent with her poor
response to typical antidepressant medications” and “could also
explain her report that Klonopin caused her to have suicidal
ideation.” T.346.
risperidone
Dr.

and

Spurling

Dr. Spurling increased Plaintiff’s dose of
continued

checked

Celexa

boxes

and

indicating

Wellbutrin.
that

T.347.

Plaintiff

was

“[l]imited” with regard to understanding and memory, sustained
concentration

and

[l]imitation”

in

persistence,
social

and

adaption,

interaction.

T.332.

but

has

Plaintiff

“[n]o
has

a

“[l]imited ability to focus [and] follow multiple step procedures”
a “clearly . . . decreased ability to concentrate,” T.333, which
symptoms “have yet to respond to treatment,” id. Dr. Spurling
stated

that

he

“continue[d]

to

actively

manage

and

try

new

medications” to address Plaintiff’s mental health symptoms, which
were chronic and waxed and waned. Id.
Approximately

nine

months

later,

on

December

15,

2012,

Dr. Spurling completed a form titled, “Evaluation of the Residual
Functional Capacity of the Mentally Impaired Patient,” T.427-430.
Dr. Spurling rated Plaintiff’s abilities to comprehend and carry
out simple instructions, to remember work procedures, and to
respond appropriately to co-workers as “good,” see T.427-28, which
the form defined as “limited but satisfactory.” T.427. Dr. Spurling
rated her abilities to remember detailed instructions, to interact
appropriately with supervisors, to function independently on a job,

-8-

to

exercise

appropriate

rules/regulations,
maintain

social

to

judgment,

make

to

simple

functioning,

and

abide

by

work-related
to

tolerate

occupational
decisions,

customary

to

work

pressures in a work setting, including production requirements and
demands, as “fair”, T.428-29, defined by the form as meaning that
the claimant’s functioning in that area is “seriously limited and
will

result

unpredictable

in

periods

times.”

of

unsatisfactory

T.427-28.

Dr.

Spurling

performance
rated

as

at

“poor”

Plaintiff’s abilities to complete a normal workday on a sustained
basis, to concentrate and attend to a task over an 8-hour period,
and to be aware of normal hazards and make necessary adjustments to
avoid those hazards. T.428-29. The form defined “poor” as meaning
that the claimant has “[n]o useful ability to function” in a
particular area. T.427. Dr. Spurling explained that Plaintiff’s
abilities to complete a normal workday and to concentrate over an
8-hour period were limited by her anxiety and panic attacks, T.428,
and that when she is having a panic attack, she is “unable to
attend to the pertinent stimuli and react appropriately.” T.429.
Dr. Spurling opined that “the stress of caring for her young
children has caused worsening of her mood and anxiety/panic”
symptoms. T.429. Dr. Spurling estimated that Plaintiff likely would
be absent from work more than 4 days per month “as a result of the
impairments or treatment,” T.430, and that she is unable to work
more than 4 hours per day. Id. He checked “yes” in response to

-9-

whether these limitations have been “reasonably consistent and
continuing since September 5, 2011.” Id.
The ALJ essentially ignored Dr. Spurling’s second opinion,
which

showed

an

overall

decrease

in

Plaintiff’s

level

of

functioning and increase in symptomatology as compared to his first
opinion. Plaintiff argues that this was error. The Court agrees, as
discussed further below.
The

ALJ

first

rejected

Dr.

Spurling’s

opinion

regarding

Plaintiff’s likely absences “as a result of the impairments or
treatment,”

an

opinion

which

was

echoed by

her

primary

care

physician, Dr. Agata Olszowska. The ALJ commented, “Putting aside
for a moment the fact that many persons see their doctors after
hours, on weekends, or by taking leave for just part of the work
day, the chronological treatment record fails to support the
proposition that [Plaintiff] is required to spend 5 or more work
days each month in the doctor’s office or other medical facility
receiving

treatment.”

T.24.

This

statement

seriously

mischaracterizes the record. Neither Dr. Spurling nor Dr. Olszowska
opined that Plaintiff would be “required to spend 5 or more work
days each month in the doctor’s office or other medical facility
receiving treatment.” Rather, the form the doctors were asked to
complete asks how many days of work would Plaintiff be likely to
miss “as a result of the impairments or treatment.” There is no
basis in the record for the ALJ to infer that the doctors believed

-10-

Plaintiffs’ likely absenteeism would be attributable solely to
treatment,

such

Furthermore,

the

as

attending

ALJ’s

her

speculative

doctors’

opinion

appointments.

that

unidentified

“persons” would not have to miss that much work because they could
see their healthcare providers outside of normal work hours is
wholly irrelevant to the analysis. In any event, it is not a proper
basis

for

discrediting

the

consistent

opinions

of

two

of

evaluation

of

Plaintiff’s treating sources.
The

ALJ

next

addressed

Dr.

Spurling’s

Plaintiff’s ability to remember detailed instructions (“fair”),
ability to remember work procedures (“good”), and ability to
comprehend and carry out simple instructions (“good”), and ability
to make simple work-related decisions (“fair,” “as long as stress
is minimal”). The ALJ stated that he “essentially adopted these
restrictions by limiting [Plaintiff] to low stress unskilled work
involving

simple

instructions.”

T.25

(emphasis

in

original).

However, there is a discrepancy between the ALJ’s understanding of
the terms “fair” and “good” and Dr. Spurling’s understanding of
those terms as defined in the forms he completed. The ALJ evidently
gave “fair” its dictionary meaning, e.g., “sufficient but not
ample: adequate [.]” However, the form defined “fair” as meaning
that the individual’s ability to function was “seriously limited
and

will

result

in

periods

of

unsatisfactory

performance

at

unpredictable times.” Likewise, the form defined “good” as “limited

-11-

but satisfactory”, and thus defined “good” in a more restricted
sense than the typical dictionary definition, e.g., “of a favorable
character or tendency[.]” Furthermore, the ALJ rejected, without a
valid explanation, Dr. Spurling’s later opinion, after 9 months of
additional treatment, that Plaintiff’s ability to concentrate and
attend to tasks had decreased significantly.

The ALJ noted that

such a restriction is inconsistent with [Plaintiff]’s
role as caretaker of 5 children (including a young
infant) and homemaker. She would not be able to carry out
these responsibilities if she had ‘no useful ability’ to
concentrate and attend to tasks. In fact, if she was so
limited one might expect the Department of Social
Services to be knocking at her door. Such is not the
case.
T.25. As the foregoing quotation illustrates, a recurring theme of
the ALJ’s decision is that she cannot possibly be disabled because
she cares for her children. Indeed, as Plaintiff points out, the
ALJ referred to her spending time with or caring for her children
more than a dozen times. See, e.g., T.13, 14, 16, 23, 24, 25, 26,
27. According to the ALJ, Plaintiff’s “full time responsibilities
as the sole caretaker of 5 children and the home constitute a full
time job[.]” T.24. There are multiple errors in the ALJ’s reliance
on Plaintiff’s childcare activities as the rationale for rejecting
the opinions of treating psychiatrist Dr. Spurling. First, the ALJ
mischaracterized the record, and ignored the fact that Plaintiff
receives assistance in caring for her children, as needed, from her
husband and from a friend, Betsy Crance. T.59, 198. Plaintiff also

-12-

reported that she sometimes has her oldest daughter stay home from
school to help care for her youngest child. T.60.
The

ALJ

furthermore

failed

to

recognize

the

differences

between being a parent, caring for one’s children at home, and
performing

substantial

gainful

employment

in

the

competitive

workplace on a “regular and continuing basis,” i.e., “8 hours a
day, for 5 days a week, or an equivalent work schedule[,]” SSR
96–8p, 1996 WL 374184, at *2 (S.S.A. July 2, 1996). See, e.g.,
Gentle v. Barnhart, 430 F.3d 865, 868 (7th Cir. 2005) (“A more
important

point

is

that

taking

care

of

an

infant,

although

demanding, has a degree of flexibility that work in the workplace
does not.”); Zuback v. Colvin, No. 4:14-CV-00602-GBC, 2015 WL
5474846, at *19 (M.D. Pa. Sept. 15, 2015) (“[C]aring for children
allows for flexibility and rest breaks. . . . Moreover, parents may
go to great lengths to care for their children that would not be
sustainable in the workplace, and should not be discouraged from
doing so.”) (citing, inter alia, Gentle, 430 F.3d at 867; Pen v.
Astrue, No. 12–CV–01041 NC, 2013 WL 3990913, at *10 (N.D. Cal.
Aug. 2, 2013) (the ALJ “determined from [a claimant’s] statements
that she is able to care for her children, drive, and shop, that
she is, therefore, more active than she claims”; remanding because
“the ALJ was incorrect in concluding that this is evidence of her
ability to work outside of the home when the demands of a workplace
environment do not afford the same opportunities for breaks, rest,

-13-

or assistance”); Moss v. Colvin, No. 1:13–CV–731–GHW–MHD, 2014 WL
4631884, at *33 (S.D.N.Y. Sept. 16, 2014) (“There are critical
differences between activities of daily living (which one can do at
his own pace when he is able) and keeping a full time job.”); other
citations

omitted);

Iacobucci

v.

Comm’r

of

Soc.

Sec.,

No. 1:14–CV–001260–GWC, 2015 WL 4038551, at *6 (S.D.N.Y. June 30,
2015) (finding reversible error where “[t]he ALJ observed that
‘[i]n order to properly care for her child and insure his safety,
the claimant is required to demonstrate at least as much capacity
for sustained concentration and attention, and ability to perform
simple tasks as was required by her past work as a cashier.’ The
ALJ

concluded

undertake

the

that

Iacobucci’s

mentally

(and

‘willingness
physically)

and

ability

arduous

task

to
of

childrearing is consistent with her ability to perform simple
tasks’”). There is nothing in either the Act or the Commissioner’s
regulations and policy rulings to suggest that individuals who
engage in child-rearing activities are disqualified from being
found disabled. The ALJ’s assumptions and reasoning in this case,
however, stand for just such an untenable proposition. On this
basis alone, the ALJ’s decision warrants reversal. See Gentle, 430
F.3d at 867 (“The administrative law judge’s casual equating of
household work to work in the labor market cannot stand.”).
Furthermore, the ALJ ignored the Commissioner’s statements
recognizing that individuals with mental impairments may appear to

-14-

function adequately in a restricted setting and yet be unable to
meet the demands of competitive employment. See, e.g., 20 C.F.R.
Pt. 404, Subpt. P, App. 1, §12.00 (C)(3)(“[The Commissioner] must
exercise great care in reaching conclusions about [the claimant’s]
ability or inability to complete tasks under the stresses of
employment during a normal workday or work week based on a timelimited mental status examination or psychological testing by a
clinician, or based on [the claimant’s] ability to complete tasks
in other settings that are less demanding, highly structured or
more supportive.”); SSR 85–15, 1985 WL 56857, at *6 (S.S.A. Jan. 1,
1985) (“[T]he reaction to the demands of work (stress) is highly
individualized, and mental illness is characterized by adverse
responses to seemingly trivial circumstances. The mentally impaired
may cease to function effectively when facing such demands as
getting to work regularly, having their performance supervised, and
remaining in the workplace for a full day. . . . Thus, the mentally
ill may have difficulty meeting the requirements of so-called
‘low-stress’ jobs . . . .”).
The ALJ also found that Dr. Spurling’s opinion was “belied by
the fact that [Plaintiff] reads, watches television, and puts
puzzles together on a daily and weekly basis.” T.25. There is
nothing inherent in these activities that proves Plaintiff has the
ability to perform “[t]he basic mental demands of competitive,
remunerative, unskilled work[, which] include the abilities (on a

-15-

sustained basis) to understand, carry out, and remember simple
instructions; to respond appropriately to supervision, coworkers,
and usual work situations; and to deal with changes in a routine
work setting[,]” SSR 85-15, much less to do so “8 hours a day, for
5 days a week, or an equivalent work schedule[,]” SSR 96–8p, 1996
WL 374184, at *2. Courts in this Circuit repeatedly have recognized
that “[a] claimant’s participation in the activities of daily
living will not rebut his or her subjective statements of pain or
impairment unless there is proof that the claimant engaged in those
activities for sustained periods of time comparable to those
required to hold a sedentary job.” Polidoro v. Apfel, No. 98
CIV.2071(RPP), 1999 WL 203350, at *8 (S.D.N.Y. 1999) (citing
Carroll v. Sec’y of Health and Human Servs., 705 F.2d 638, 643
(2d Cir. 1983) (finding that Secretary failed to sustain burden of
showing that claimant could perform sedentary work on the basis of
(1) testimony that he sometimes reads, watches television, listens
to the radio, rides buses and subways, and (2) ALJ’s observation
that claimant “‘sat still for the duration of the hearing and was
in no evident pain or distress’”; circuit found “[t]here was no
proof that [claimant] engaged in any of these activities for
sustained periods comparable to those required to hold a sedentary
job”)).

“[D]isability

claimants

should

not

be

penalized

for

attempting to lead normal lives in the face of their limitations.”
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).

-16-

The ALJ also discounted Dr. Spurling’s opinion because he
found “nothing in Dr. Spurling’s treatment notes to suggest or
support such an extreme restriction” on Plaintiff’s abilities to
concentrate and maintain attention. T.25. The ALJ found that “none
of Dr. Spurling’s functional capacity conclusions is supported by
psychological testing.” T.27. The Commissioner’s regulations do not
require that a psychiatric opinion be supported by more than a
mental status examination and psychiatric history. See 20 C.F.R.
Pt. 404, Subpt. P, App. 1, §12.00(B). By requiring more supporting
evidence than contemplated by the regulations, the ALJ formulated
his own legal standard which he then improperly utilized to assess
Dr. Spurling’s opinion. Moreover, where a claimant alleges a
disability primarily based on a mental impairment, the treating
psychiatrist’s opinion may be more significant and relevant than
psychological

testing.

See,

e.g.,

Westphal

v.

Kodak,

No. 05–cv–6120, 2006 WL 1720380, at *5 (W.D.N.Y. Jun. 21, 2006)
(noting that the American Psychiatric Association has listed the
direct

face-to-face

interview

as

the

“psychiatrist’s

primary

assessment tool”) (citation omitted). “A treating psychiatrist’s
opinion,

based

relationship

on

medical

consisting

of

evidence
face

to

derived
face

from

visits,

a

treatment
is

.

.

.

‘inherently more reliable than an opinion based on a cold record
because observation of the patient is critical to understanding the
subjective nature of the patient’s disease and in making a reasoned

-17-

diagnosis.’” Drake v. Astrue, No. 07–cv–377, 2008 WL 4501848, at *4
(W.D.N.Y. Sept. 30, 2008) (quotation omitted).
The ALJ committed further error when he discredited Dr.
Spurling’s opinion based on his lay assessment of Plaintiff’s
ability to understand and answer questions at the hearing. T.26,
fn. 19. This amounted to “a variant of the disfavored ‘sit and
squirm’ test.” Brown ex rel. J.B. v. Colvin, No. 1:12-CV-1062-MAT,
2015 WL 1647094, at *5 (W.D.N.Y. Apr. 14, 2015) (citing Brown v.
Comm’r of Soc. Sec., No. 06–CV–3174(ENV)(MDG), 2011 WL 1004696, at
*5 (E.D.N.Y. Mar. 18, 2011) (“The ‘sit and squirm’ test has been
rejected by the Second Circuit as impermissible, and observations
by the ALJ of any sort shall be accorded only limited weight,
‘since the ALJ is not a medical expert.’”) (quoting Spielberg v.
Barnhart, 367 F.Supp.2d 276, 282 (E.D.N.Y. 2005) (citing Aubeuf v.
Schweiker,

649

F.2d

107,

113

omitted)).

An

administrative

(2d

Cir.

hearing

1981);

other

constitutes

citation

a

“highly

structured setting[,]” Brown ex rel. J.B., 2015 WL 1647094, at *5,
and the Commissioner’s regulations require the ALJ to consider the
effects of structured or highly supportive settings in assessing a
claimant’s limitations. Smith v. Massanari, No. 00–CV–0402, 2002 WL
34242375,

at

*6

(W.D.N.Y.

Mar.

17,

2002)

(citing

20

C.F.R.

§ 416.924c). Neither the law nor the record in this case supports
the

ALJ’s

generalization

about

Plaintiff’s

attention

and

concentration during the highly structured setting of a relatively

-18-

brief legal proceeding to a different environment. Moreover, the
“sit and squirm” test “is not considered sufficient evidence to
rebut findings of pain [or other symptoms] by treating physicians.”
Ureña-Perez v. Astrue, No. 06 CIV. 2589 JGK/MHD, 2009 WL 1726217,
at *42 (S.D.N.Y. Jan. 6, 2009) (citing Aubeuf, 649 F.2d at 113;
other citation omitted), report and recommendation adopted, No. 06
CIV.

2589(JGK),

2009

WL

1726212

(S.D.N.Y.

June

18,

2009).

Relatedly, the ALJ erred in taking a selective view of the evidence
regarding Plaintiff’s concentration deficits. See Nix v. Astrue,
2009 WL 3429616, at *6 (W.D.N.Y. Oct. 22, 2009) (noting that “an
ALJ cannot pick and choose only parts of a medical opinion that
support his determination,” and “may not ignore an entire line of
evidence that is contrary to [his] findings”) (internal quotation
marks omitted). In particular, the ALJ ignored Plaintiff’s reported
difficulties in concentrating well enough to understand what she is
reading and her need for assistance in reading and paying bills.
T.58. She brings someone with her to her doctor’s appointments to
help her understand what the doctor is saying. T.62, 63, 456, 458.
While out shopping she will sometimes forget what she is doing and
why, T.196, and she suffers from frequent panic attacks. T.60, 61,
74, 175. Plaintiff stated that her ability to drive is limited
because of the side effects caused by her medications. T.169.
Finally, the ALJ discounted Dr. Spurling’s opinion because the
treatment notes failed to reflect Plaintiff’s own opinion of her

-19-

abilities to function in each of the areas rated by Dr. Spurling.
T.27. As Plaintiff argues, the suggestion implicit in the ALJ’s
novel legal standard is that a psychiatrist or psychologist’s
expert medical opinion lacks validity unless confirmed by the
subjective

statements

of

a

layperson

suffering

from

mental

disorders which conceivably may impair her insight and judgment.
There is no legal basis whatsoever for this proposition.
Although the ALJ purported to consider whether there was
evidence in support of the treating psychiatrist’s opinion and
whether that opinion was consistent with the record as a whole, the
ALJ repeatedly mischaracterized the evidence, selectively quoted
the record, and applied incorrect legal standards, as discussed
above. Therefore, ALJ’s reasons for assigning less than controlling
weight to Dr. Spurling’s opinion cannot be “good reasons.” Reversal
of the Commissioner’s decision accordingly is required. See, e.g.,
Snell v. Apfel, 177 F.3d 128, 133 (2d

Cir. 1999) (An ALJ’s

“[f]ailure to provide ‘good reasons’ for not crediting the opinion
of a claimant’s treating physician is a ground for remand.”)
(citation omitted).
B.

Proper Application of
Dr. Spurling’s Opinion

the

Regulatory

Factors

to

A comparison of Dr. Spurling’s opinion with the other opinions
from the other medical experts in this case reveals that it is
consistent with them and the record as a whole. The Court turns
first to

the

consistency

of

Dr. Spurling’s
-20-

opinion

with his

treatment
Dr.

notes. As

Spurling’s

an

initial

treatment

notes

matter,
are

the Court

fairly

notes

extensive,

that

usually

consisting of about 4 typed pages per visit. Plaintiff consistently
reports to

Dr.

Spurling

many

symptoms

caused

by

her

bipolar

disorder and anxiety disorder. See T.341, 342, 344, 345, 381, 382,
384, 385 (reporting and/or displaying anxiety); T.340, 383, 421,
424, 434 (reporting panic/anxiety attacks and periods of agitation;
abrupt switching into mixed mood state); T.340, 341, 344, 345, 384,
385, 431, 434 (reporting insomnia); T.340, 341, 344, 345, 431
(crying spells or crying jags); T.341, 345 (flight of ideas and
racing thoughts); T.341, 345 (difficulty concentrating); T.341,
344, 345, 382 (short-tempered); T.344, 431 (becoming withdrawn and
isolated);

T.431,

434

(mild

psychotic

symptoms,

visual

hallucinations); T.421 (hypervigilance and paranoia when around
people).

The

ALJ,

however,

focused

only

on

evidence

of

any

improvement by Plaintiff during her treatment with Dr. Spurling.
This was error. See, e.g., Sutherland v. Barnhart, 322 F.Supp.2d
282, 289 (E.D.N.Y. 2004) (“It is not proper for the ALJ to simply
pick and

choose

from

the

transcript

only

such

evidence that

supports his determination, without affording consideration to
evidence supporting the [claimant]’s claims.”) (citing Lopez v.
Sec’y of Dept. of Health and Human Servs., 728 F.2d 148, 150–51
(2d Cir. 1984)).

-21-

With regard to the consistency of Dr. Spurling’s opinions with
the other expert medical opinions in the record, primary care
physician Dr. Agata Olszowska also opined that Plaintiff likely
would be absent from work more than 4 days per month. T.450.
According to the VE, this level of absenteeism would foreclose
competitive gainful employment. See T.75 (“[I]f it was as much as
one day a week, four days a month . . . that would certainly do
away with competitive work.”).
Consultative

psychologist

Yu-Ying

Lin,

Ph.D.

examined

Plaintiff on May 1, 2012, and diagnosed her with bipolar disorder,
not otherwise specified, with psychotic features; panic disorder
with agoraphobia; and generalized anxiety disorder. T.360. During
the examination, Plaintiff’s affect was “[d]ysphoric” and her mood
was

“[d]ysthymic.”

concentration
emotional

T.359.

“[a]ppeared

distress

Dr.

Lin

noted

her

to

be

moderately

resultant

to

depression[,]”

attention

impaired

and

due

T.359,

to

e.g.,

Plaintiff “answered 26 to 4x6” and she answered 17, 13, 11, 8, 4,
1 to the “serial threes” test. Id. Also, Plaintiff’s recent and
remote memory skills “[a]ppeared to be impaired due to emotional
distress secondary to depression,” and her intellectual functioning
was “below average.” T.359. Plaintiff reported that she does not
shop by herself due to anxiety, and her husband helps with money
management

because

she

loses

track

of

paying

bills.

T.360.

Plaintiff said she does limited driving due to confusion and

-22-

anxiety, and does not use public transportation due to location
anxiety.

T.360.

examination

Dr.

Lin

“appear[ed]

concluded
to

be

that

the

consistent

results
with

of

her

psychiatric

problems,” and “this may significantly interfere with” Plaintiff’s
“ability to function on a daily basis.” T.360. For her medical
source statement, Dr. Lin opined that Plaintiff can follow and
understand

simple

directions

and

perform

simple

tasks

independently, and perform complex tasks with supervision. However,
Dr.

Lin

stated,

Plaintiff

“cannot

maintain

attention

and

concentration”; “is not able to maintain a regular schedule”;
“cannot make appropriate decisions”; “cannot relate adequately with
others”
Dr.

and

Lin’s

“cannot

opinions

appropriately
about

deal

Plaintiff’s

with

serious

stress.”

T.360.

limitations

are

consistent with those of Dr. Spurling.2 When these limitations on
concentration were included in the hypotheticals presented to the
VE, the VE testified that an individual who is off task 10 percent
of the work day would be unable to maintain competitive employment,
which requires the worker to be on task virtually all of the time

2

State agency psychiatrist Richard Altmansberger, M.D. identified “moderate”
restrictions of activities of daily living, “moderate” difficulties in
maintaining social functioning, and “moderate” difficulties in maintaining
concentration, persistence or pace. T.372. Dr. Altmansberger opined that
Plaintiff has a “marked” limitation in her ability to carry out detailed
instructions and is “moderately” limited in an additional twelve areas of
intellectual functioning, including the ability to maintain attention and
concentration for extended periods, perform activities within a schedule, and
complete a normal workday and workweek without interruptions from psychologically
based symptoms and perform at a consistent pace without an unreasonable number
and length of interruptions. See T.376, 377.

-23-

outside of normal work breaks. T.74, 75. However, the ALJ accorded
Dr. Lin’s opinion only “partial weight,” in particular rejecting
limitations found by Dr. Lin regarding attention and concentration,
decision-making,

maintaining

a

schedule, interacting

with and

relating appropriately to others, and responding appropriately to
supervision. T.27. According to the ALJ, “[i]f [Plaintiff] was so
limited she would not be able to carry out her fulltime job of
caretaker

of

5

children

(including

a

very

young

child)

and

homemaker.” T.27. For all of the the reasons discussed above in
connection with the ALJ’s erroneous weighing of Dr. Spurling’s
opinions, Plaintiff’s childcare activities are not a valid reason
for discounting Dr. Lin’s opinion.
C.

Erroneous Credibility Assessment

An ALJ must follow the two-step process set forth in the
regulations for evaluating a claimant’s symptoms such as pain,
fatigue, anxiety, or nervousness. See 20 C.F.R. §§ 404.1529,
416.929; SSR 96–7p, 1996 WL 374186, at *6–9 (S.S.A. July 2, 1996)
(summarizing

framework

for

assessing

credibility).

While

the

regulations note that objective medical evidence is useful to this
inquiry, they do not allow an ALJ to reject statements about the
intensity and persistence of pain and other symptoms “solely
because

the

substantiate

available
[the

objective

claimant’s]

medical

evidence

statements.”

20

does

not

C.F.R.

§§ 404.1529(c)(2), 416.929(c)(2). The ALJ’s decision “must contain

-24-

specific reasons for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the
weight the [ALJ] gave to the individual’s statements and the
reasons for that weight.” SSR 96–7p, 1996 WL 374186, at *2.
Here, the ALJ simply found Plaintiff to be “not entirely
credible,” T.18. This finding is not “sufficiently specific,” 1996
WL 374186, at *2, for meaningful appellate review; nor does it
identify

“specific

on

credibility,

supported by the evidence in the case record,” id.

Rather than

considering

reasons

Plaintiff’s

for

the

credibility

finding

in

light

of

the

required

regulatory factors, see 20 C.F.R. § 416.929(c)(3)(i)-(vii), the ALJ
merely summarized the medical evidence in the record without
meaningful analysis of how the medical evidence detracted from
Plaintiff’s credibility. This error warrants reversal. See, e.g.,
Kerr v. Astrue, No. 09–CV–01119(GLS)(VEB), 2010 WL 3907121, at *4
(N.D.N.Y. Sept. 7, 2010) (“[T]he ALJ’s discussion of the factors
was simply a recitation of Plaintiff’s testimony without any
meaningful

analysis

of

how

those

factors

detracted

from

her

credibility. Indeed, the ALJ failed to offer any explanation as to
why Plaintiff’s subjective complaints were found less than fully
credible.”) (citation omitted).
In addition, when discussing the severity of Plaintiff’s
psychiatric symptoms, the ALJ noted that “medical records do not

-25-

contain evidence of long-term hospitalizations, commitments, severe
psychotic episodes or incidents of self-harm or harm to others
associated with her diagnoses of depression and anxiety.” T.21.
Neither the Act nor the Commissioner’s regulations or policy
rulings require a claimant to obtain certain psychiatric treatment
in order to be found disabled due to her mental impairment(s). The
ALJ improperly

relied

on a

medico-legal

standard

of

his

own

creation to determine when symptoms from psychiatric diagnoses are
severe enough to be disabling. See, e.g., Morseman v. Astrue, 571
F. Supp.2d 390, 396 (W.D.N.Y. 2008) (finding that ALJ “relie[d], in
part, on his own lay opinion regarding manifestations of pain”;
credibility assessment “constitute[d] a medical standard authored
by the ALJ and not supported by any medical evidence in the
record”). The ALJ then asserted that, “to the contrary,” she
“experienced few symptoms” as a result of her mental impairments.
T.21. This is a mischaracterization of the record. As discussed
above, and

as

Plaintiff

argues

in

her Reply,

Dr.

Spurling’s

treatment notes and mental RFC assessments reflect a worsening of
her symptoms over the nine months between the first and second
reports. See Dkt #10, pp. 3-4 (citations to record omitted).
D.

Remedy

The fourth sentence of Section 405(g) of the Act provides that
a “[c]ourt shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or

-26-

reversing the decision of the Commissioner. . ., with or without
remanding the case for a rehearing.” 42 U.S.C. § 405(g). Courts
have held that a remand pursuant to the fourth sentence of Section
405(g) is appropriate in cases where the Commissioner’s decision is
the product of legal error. See, e.g., Rosa v. Callahan, 168 F.3d
72, 82-83 (2d Cir. 1999) (“Where . . . the ALJ has applied an
improper legal standard, we have, on numerous occasions, remanded
to the [Commissioner] for further development of the evidence.”)
(internal quotation marks omitted). Although it is less typical,
reversal without remand is the appropriate disposition when there
is “persuasive proof of disability” in the record, Parker v.
Harris, 626 F.2d 225, 235 (2d Cir. 1980), and further proceedings
would be of no use because there is no reason to conclude that
additional evidence might support the Commissioner’s claim that the
claimant is not disabled, Butts v. Barnhart, 388 F.3d 377, 385–86
(2d Cir. 2004).
Here, none of the regulatory factors support a decision not to
afford controlling weight to treating psychiatrist Dr. Spurling’s
later opinion, which is well supported by the evidence of record
and is consistent with the opinions of consultative psychologist
Dr. Lin and treating physician Dr. Olszowska. “Substantial evidence
exists in the record to warrant giving deference to the opinions of
Plaintiff’s treating psychiatrist, and when that deference is
accorded, a finding of disability is compelled.” Beck v. Colvin,

-27-

No. 6:13–CV–6014(MAT), 2014 WL 1837611, at *15 (W.D.N.Y. May 8,
2014) (citing Spielberg v. Barnhart, 367 F. Supp.2d 276, 283
(E.D.N.Y. 2005) (“[H]ad the ALJ given more weight to the treating
sources, he would have found plaintiff disabled. . . .”)). In the
present case, further administrative proceedings would serve no
purpose. Accordingly, remand for the calculation of benefits is
warranted. See Parker, 626 F.2d at 235.
V.

Conclusion
For the foregoing reasons, Defendant’s motion for judgment on

the pleadings (Dkt #9) is denied. Plaintiff’s motion for judgment
on

the

pleadings

(Dkt #5)

is

granted and

the Commissioner’s

decision is reversed and remanded for calculation and payment of
benefits. The Clerk of the Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

February 25, 2016
Rochester, New York

-28-