Callahan v. Berryhill

Filing 12

DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that the Commissioners decision is reversed, and the matter is remanded for the calculation and payment of benefits; and denying 10 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/4/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CRYSTAL CALLAHAN,
No. 6:17-cv-06245(MAT)
DECISION AND ORDER

Plaintiff,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented

by

counsel,

Crystal

Callahan

(“Plaintiff”)

instituted this action pursuant to Title II of the Social Security
Act (“the Act”), seeking review of the final decision of the Acting
Commissioner of Social Security (“the Commissioner”) denying her
applications

for

Disability

Insurance

Benefits

(“DIB”)

and

Supplemental Security Income (“SSI”). The Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
II.

Procedural Status
On April 11, 2012, Plaintiff filed a Title II application for

a period of disability and disability insurance benefits, alleging
disability

beginning

October

25,

2010.

The

claim

was

denied

initially on August 23, 2012. Plaintiff filed a written request for
hearing on October 22, 2012. On July 11, 2013, Administrative Law
Judge

(“ALJ”)

Joseph

L.

Brinkley

held

a

hearing

via

videoconference. Plaintiff appeared with her attorney in Rochester,
New York, and testified, as did impartial vocational expert (“VE”)

Stephanie R. Archer. (T.41-76).1 On August 23, 2013, ALJ Brinkley
issued a decision finding that Plaintiff was not disabled. (T.1835). This decision became the final decision of the Commissioner on
August 27, 2014, when the Appeals Council denied Plaintiff’s
request for review.
Plaintiff filed an action in this Court, and on September 29,
2015, the undersigned remanded the claim to the Commissioner for
further proceedings pursuant to the fourth sentence of section
205(g) of the Act. (T.671-88). On June 15, 2016, Plaintiff appeared
with her attorney for a hearing before ALJ Connor O’Brien in
Rochester, New York. (T.574-636). On February 16, 2017, ALJ O’Brien
issued a decision finding Plaintiff not disabled. (T.544-72). The
Appeals Council denied Plaintiff’s request for review, making ALJ
O’Brien’s

decision

the

final

decision

of

the

Commissioner.

Plaintiff then timely commenced this action.
For the reasons discussed below, the Commissioner’s decision
is reversed, and the matter is remanded for calculation and payment
of benefits.
III. The ALJ’s Decision
At the outset of the decision, the ALJ noted that pursuant to
the Court’s remand order, the Appeals Council had issued the
following

instructions:

(1)

re-evaluate

the

treating

source

1

Citations to “T.” refer to pages from the certified transcript of the
administrative record, submitted by the Commissioner in connection with her
answer to the complaint.

-2-

opinions of Dr. Ronald Spurling and Dr. Donovan Holder in light of
the case law and regulatory factors; and (2) re-assess Plaintiff’s
mental and physical residual functional capacity as necessary in
light of the re-evaluations of the treating source opinions.
At step one of the sequential evaluation, the ALJ found that
Plaintiff

last

met

the

Act’s

insured

status

requirements

on

March 31, 2013, and did not engage in substantial gainful activity
during the period from her the alleged onset date of October 25,
2010, through her date last insured.
At

step

two,

the

ALJ

determined

that

Plaintiff

had

the

following “severe” impairments: lumbar degenerative disc disease,
obesity, fibromyalgia, affective disorder, and anxiety disorder.
The ALJ found that Plaintiff’s gastroesophageal reflux disease,
sleep apnea, polycystic ovary disease, hypertension, and migraine
headaches, when properly treated, resulted in only minimal, if any,
limitations on her ability to perform work-related activities.
At step three, the ALJ found that Plaintiff’s impairments do
not meet or medically equal a listed impairment. The ALJ gave
particular consideration to Listings 1.04A, 1.04B, 1.04C, 12.04,
and 12.06.
Prior to proceeding to step four, the ALJ assessed Plaintiff
as having the residual functional capacity (“RFC”) to perform light
work as defined in 20 C.F.R. § 404.1567(b), except that she can
lift and carry 20 pounds occasionally and 10 pounds frequently; can

-3-

stand and/or walk for 4 hours in an 8-hour workday; can sit for
6 hours in an 8-hour workday; needs a sit/stand opinion that allows
her to change position every 60 minutes for up to 5 minutes; cannot
climb ropes, ladders, or scaffolds; cannot balance on narrow,
slippery or moving surfaces; cannot stoop to the floor, kneel, or
crawl; occasionally needs a cane when walking; can occasionally
crouch

and

occasional

climb

stairs;

exposure

to

cannot

extreme

work
heat,

overhead;
extreme

can

tolerate

cold,

wetness,

humidity, and airborne irritants; must avoid hazards such as open
water and unprotected heights; can occasionally drive; requires up
to 3 additional,

short, less than 5-minute unscheduled breaks

beyond normally scheduled breaks; can adjust to occasional changes
in the work setting; cannot interact with the public; cannot
perform teamwork; and can work to meet daily goals but cannot
maintain an hourly, machine-driven, assembly-line production rate.
At step four, the ALJ determined that Plaintiff has past
relevant work as a receptionist (Dictionary of Occupational Titles
(“DOT”) 237.367-038), which the VE testified was sedentary and
semiskilled work; as a mental retardation aide (DOT 355.377-018),
which the VE testified was medium and skilled work; and as an EKG
technician (DOT 078.362-018), which the VE testified was light and
semiskilled work. The VE testified that a limitation precluding
Plaintiff from any interaction with the public would eliminate

-4-

those jobs. Therefore, the ALJ concluded, Plaintiff is unable to
perform her past relevant work as generally or actually performed.
At step five, the ALJ noted that Plaintiff was 42 years-old,
making her a younger individual age 18-44, on the date last
insured, with at least a high school education and the ability to
communicate in English. The ALJ relied on the VE’s testimony to
find

that

Plaintiff

can

perform

the

requirements

of

such

representative occupations as addresser (DOT 209.587-010, of which
there are 81,300 jobs in the national economy); film touch-up
inspector (DOT 726.684-050, of which there are 489,750 jobs in the
national economy); and document preparer (DOT 249.587-018, of which
there are 2,889,970 jobs in the national economy. Accordingly, the
ALJ entered a finding of “not disabled.”
IV.

Scope of Review
A

district

court

may

set

aside

the

Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error.

42 U.S.C. § 405(g); see also

Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “Substantial evidence means ‘such relevant evidence

-5-

as

a

reasonable

mind

might

accept

as

adequate

to

support

a

conclusion.’” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)
(quotation

omitted).

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

Commissioner’s conclusions of law.”

not

apply

to

the

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
V.

Discussion
Plaintiff argues that the ALJ erred in weighing the opinions

given by her treating psychiatrist, Ronald Spurling, M.D.; primary
care

physician

specialist,

Agata

Donovan

Olszowska,

Holder,

M.D.,

M.D.;
which

and

pain

resulted

management
in

an

RFC

assessment unsupported by substantial evidence. Plaintiff also
argues that the ALJ’s credibility assessment is flawed.
A.

Mental RFC Assessment and the ALJ’s Application of the
Treating Physician Rule to Dr. Spurling’s Opinions
1.

Dr. Spurling’s Opinions

Plaintiff began treating with Dr. Spurling in January of 2012.
(T.378). At that time, Dr. Spurling noted a long history of anxiety
and symptoms related to her mood disorder symptoms. (T.380). During
the evaluation, Dr. Spurling observed anxiety and circumstantial

-6-

thinking; he diagnosed Plaintiff with bipolar disorder. (T.380,
381).
On May 13, 2013, Dr. Spurling completed a form titled,
“Evaluation of the Residual Functional Capacity of the Mentally
Impaired Patient.”

(T.510-13).

In connection

with

Plaintiff’s

“ability to understand and remember,” Dr. Spurling rated her
ability

to

comprehend

and

carry

out

simple

instructions

as

“[g]ood,” which the form defined as a “limited but satisfactory”
ability to function. (T.510). Dr. Spurling rated her ability to
remember work procedures and to remember detailed instructions as
“[f]air,” which the form defined as having a “seriously limited”
ability that “will result in periods of unsatisfactory performance
at unpredictable times.” (Id.). In these two areas, Dr. Spurling
noted that Plaintiff’s abilities would be “okay as long as not
under

significant

interactions,”

Dr.

stress.”
Spurling

(T.510).
assessed

With

regard

to

“social

her

ability

to

respond

appropriately to supervisors and ability to respond appropriately
to co-workers as “[p]oor,” (T.511), which the form defined as
having “[n]o useful ability to function in this area.” (T.510).
With

regard

to

“sustained

concentration

and

persistence,”

Dr. Spurling rated Plaintiff’s ability to complete a normal workday
on a sustained basis and to concentrate and attend to a task over
an eight-hour period as “[p]oor.” (T.511). Dr. Spurling opined that
Plaintiff’s ability to function independently on a job, exercise

-7-

appropriate

judgment,

abide

by

occupational

rules,

and

make

appropriate judgments was “fair.” (T.511-12). As far as “routine
functions” and “stress,” Dr. Spurling opined that her ability to
maintain

social

functioning

and

to

tolerate

customary

work

pressures in a work setting including production requirements and
demands was “[p]oor,” (T.512), which, as noted above, the form
defined as having “[n]o useful ability to function in this area.”
(T.510). Dr. Spurling commented that “stress leads to extremes of
behavior such as agitation, yelling, or anxiety/panic.” (T.512).
Dr. Spurling stated that she would be absent from work due to her
impairments more than 4 days per month, and he opined that she
could not work more than 4 hours per day or 15 to 20 hours per
week. (T.513). He stated that these limitations had been reasonably
consistent and continuing since October 25, 2010. (Id.).
On February 16, 2016, Dr. Spurling indicated that there had
been no change in the limitations identified in his May 13, 2013
evaluation. (T.945).
2.
When
treating

The Treating Physician Rule

an ALJ

declines to

physician’s

opinion,

accord
the

ALJ

controlling
“must

weight

consider

to a

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

-8-

evidence

in

support

of

the

treating physician’s opinion; (iii) the consistency of the opinion
with the record as a whole; (iv) whether the opinion is from a
specialist; and (v) other factors brought to the Social Security
Administration’s attention that tend to support or contradict the
opinion.’” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)
(per curiam) (quoting 20 C.F.R. § 404.1527(d)(2)). 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
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. Comm’r 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)).
3.

The ALJ’s Weighing of Dr. Spurling’s Opinions

With respect to the first factor, Dr. Spurling began seeing
Plaintiff on January 3, 2012, and treated her on more than two
dozen occasions. (T.370-81, 417-22, 446-51, 476-78, 515-17, 895932, 940-58). He had seen her ten times before his first disability
evaluation on May 13, 2013; on February 16, 2016, he reaffirmed
that evaluation without change after a further sixteen visits.
There is no doubt that Dr. Spurling qualifies as a “treating

-9-

source” for purposes of the treating physician presumption of
deference. 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.”) (quotation omitted). With regard to the fourth
factor, 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.
However, the ALJ gave “little weight” to Dr. Spurling’s
opinions, stating that “they are inconsistent with the objective
medical evidence and record as a whole.” (T.560). The Court found
in Plaintiff’s previous case that a statement of such generality
fails to provide any insight as to what, if any, medical evidence
the ALJ used to reject Dr. Spurling’s opinion. See Callahan v.
Colvin, No. 6:14-CV-06553 MAT, 2015 WL 5712334, at *4 (W.D.N.Y.
Sept. 29, 2015) (ALJ’s “vague and conclusory” statement that
Dr. Spurling’s opinion “‘is inconsistent with the objective medical
evidentiary record and his own treatment notes, when viewed in its
totality’” “does not allow for meaningful judicial review and does
not constitute a ‘good reason’ for purposes of fulfilling the
Commissioner’s duty under the applicable regulations”). The ALJ
here continued by asserting that Dr. Spurling’s opinions were
“internally inconsistent with his contemporaneous treatment notes,
within which he repeatedly documented that the claimant seemed to

-10-

be doing fairly well overall, noting that her mood had improved,
insight and judgment were fair, and had intact memory, attention
span,

and

concentration.”

(T.560

(citing

Exhibit

(“Ex.”)

19F

(T.475-78)). However, the ALJ only cited one treatment note (i.e.,
the March 28, 2013 visit). Moreover, “[t]he Regulations clearly
recognize that the functioning of an individual with a mental
impairment may ‘vary considerably over time.’” Warren v. Astrue,
No. 09-CV-6217, 2010 WL 2998679, at *7 (W.D.N.Y. July 27, 2010)
(quoting

20

C.F.R.

Pt.

404,

Subpt.

P,

App.

1

§

12.00(D)(2)

(former))2. The Second Circuit has held that an ALJ may not reject
a

treating

physician’s

opinion

based

solely

on

perceived

inconsistencies between that opinion and his or her clinical
findings or treatment notes. See Balsamo v. Chater, 142 F.3d 75, 80
(2d Cir. 1998) (“The ALJ erred in rejecting the opinions of these
[three treating] physicians solely on the basis that the opinions
allegedly conflicted with the physicians’ own clinical findings.”);
Griffel v. Berryhill, No. 16-CV-1772(MKB), 2017 WL 4286254, at *9
n. 10 (E.D.N.Y. Sept. 26, 2017) (“To the extent the ALJ rejected
[the treating source]’s opinions on the basis that [the treating

2

The current version of the regulation similarly recognizes that a temporary
improvement in a mental impairment does not fatally undermine a disability claim.
See 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00F(4)(a) (“[The SSA] will not
find that you are able to work solely because you have a period(s) of improvement
(remission), or that you are disabled solely because you have a period of
worsening (exacerbation), of your mental disorder.”); id., § 12.00F(4)(b) (“If
you have a mental disorder involving exacerbations and remissions, you may be
able to use the four areas of mental functioning to work for a few weeks or
months. Recurrence or worsening of symptoms and signs, however, can interfere
enough to render you unable to sustain the work.”).

-11-

source]’s ‘[m]ental status examinations consistently demonstrate[d]
normal to mild cognitive symptoms,’ such rejection was erroneous
because the ALJ may only reject [the treating source]’s opinions
based on contradictory medical opinions, not based on the ALJ’s
interpretation

of [the

claimant]’s

medical

records.”) (citing

Balsamo, 142 F.3d at 80; Camille v. Colvin, 652 F. App’x 25, 28 (2d
Cir. 2016) (unpublished opn.)).
The ALJ also found Dr. Spurling’s opinion to be inconsistent
with Dr. Olszowska’s note of November 30, 2012, stating that
Plaintiff’s “[d]epression, anxiety and panic attacks seem to be
well-controlled.” (T.561 (citing T.461)). Plaintiff argues that
this was error because “greater weight should be accorded the
opinion of a qualified specialist.” (Plaintiff’s Brief (“Pl’s Br.”)
(Dkt #9-1) at 14). As Plaintiff points out, Dr. Olszowska is not a
specialist in the area of psychiatry,

Plaintiff’s purpose in

seeing Dr. Olszowska that day was not to obtain mental health
treatment, and Dr. Olszowska did not perform a detailed mental
status examination or psychological testing.
The ALJ found Dr. Spurling’s opinion to be inconsistent with
consultative psychologist Dr. Yu-Ying Lin’s findings on mental
status examination that Plaintiff’s “demeanor was cooperative,
thought processes were coherent and goal directed, affect was full
ranged and appropriate, sensorium was clear, had no hallucinations,
delusions,

or

paranoia

and

attention

-12-

and

concentration

were

intact.” (T.561 (citing T.402)). As an initial matter, the Court
notes that “[o]pinions from a one-time consultative physician are
not ordinarily entitled to significant weight, in particular where
that physician does not have the benefit of the complete medical
record.” Duran v. Colvin, No. 14 CIV. 8677(HBP), 2016 WL 5369481,
at *18 (S.D.N.Y. Sept. 26, 2016) (citing, inter alia, Selian v.
Astrue, 708 F.3d 409, 419 (2d Cir. 2013) (“We have previously
cautioned that ALJs should not rely heavily on the findings of
consultative physicians after a single examination.”) (citation
omitted); Tarsia v. Astrue, 418 F. App’x 16, 18 (2d Cir. 2011)
(summary order) (“Because it is unclear whether [the consulting
physician]

reviewed

all

of

[claimant’s]

relevant

medical

information, his opinion is not ‘supported by evidence of record’
as

required

to

override

the

opinion

of

[the]

treating

physician.”)). The fact that Plaintiff was described as pleasant
and cooperative by Dr. Lin, Dr. Spurling, and Dr. Olszowska does
not negate the severity of her mental impairments, as individuals
with mental illnesses often “adopt a highly restricted and/or
inflexible lifestyle within which they appear to function well,”
SSR 85–15, 1985 WL 1985 WL 56857, at *6. A claimant’s ability to
perform

adequately

when

she

is

in

structured,

supportive

settings—such as medical or psychiatric appointments, which have
lowered psychological pressures and interpersonal demands—does not
necessarily

predict

performance

-13-

and

ability

to

cope

in

the

competitive work environment. See id. (“The reaction to the demands
of work (stress) is highly individualized, and mental illness is
characterized

by

adverse

responses

to

seemingly

trivial

circumstances.”). In addition, the ALJ omitted to mention Dr. Lin’s
observations that Plaintiff’s mood was “dysthymic” and that her
memory skills were impaired due to anxiety in the examination.
(T.402).
Furthermore, portions of Dr. Lin’s opinion—which the ALJ
selectively rejected—were consistent with Dr. Spurling’s assessed
limitations on Plaintiff’s ability to relate to others and handle
stress. As noted above, with regard to “social interactions,”
Dr. Spurling assessed Plaintiff’s ability to respond appropriately
to supervisors and ability to respond appropriately to co-workers
as “[p]oor” (T.511), which the form defined as having “[n]o useful
ability to function in this area.” (T.510). Dr. Spurling noted she
was “likely to have exacerbation of anxiety or anger/irritability
if she feels accused, singled out by supervisor” and she “has
varying mood with anxiety and irritability.” (T.511). As far as
“routine functions” and “stress,” Dr. Spurling opined that her
ability to maintain social functioning and to tolerate customary
work pressures in a work setting including production requirements
and demands was “[p]oor” (T.512), again defined as having “[n]o
useful ability to function in this area.” (T.510). Similarly,
Dr. Lin opined that Plaintiff “cannot relate adequately with

-14-

others” and “cannot deal appropriately with stress.” (T.403).
Nonetheless, Dr. Lin opined that Plaintiff’s psychiatric impairment
“does not appear to be significant enough to interfere with [her]
ability to function on a daily basis.” (T.403). Dr. Lin’s opinion
thus contains a significant internal inconsistency. As Plaintiff
points

out,

the

Commissioner’s

rulings

indicate

that

severe

deficits in interpersonal relations and dealing with stress do have
a major impact on a claimant’s ability to fulfill the mental
demands of competitive employment. See, e.g., SSR 85-15, 1985 WL
56857,

at

*4

(S.S.A.

1985)

(“The

basic

mental

demands

of

competitive, remunerative, unskilled work include the abilities (on
a sustained basis) to . . . respond appropriately to supervision,
coworkers, and usual work situations; and to deal with changes in
a routine work setting. A substantial loss of ability to meet any
of these basic work-related activities would severely limit the
potential occupational base. This, in turn, would justify a finding
of disability because even favorable age, education, or work
experience will not offset such a severely limited occupational
base.”). SSR 85–15 thus “emphasizes the need to carefully evaluate
a

claimant’s

ability

to

deal

with

stress in

the

workplace.”

Sheffield v. Astrue, No. 3:11–CV–1176(GLS), 2012 WL 5966610, at *2
(N.D.N.Y. Nov. 28, 2012) (citing SSR 85–15, 1985 WL 56857, at *5–6
(1985)). However, the ALJ ignored the fact that both treating
psychiatrist Dr. Spurling and consultative psychologist Dr. Lin

-15-

both imposed

extremely

restrictive

limitations

on

Plaintiff’s

ability to deal with stress and interact appropriately with others,
and instead

determined

to

afford

“great weight”

to

the non-

restrictive portions of Dr. Lin’s opinion. The fact that the ALJ
gave greater weight to the opinion of a consultative psychologist,
which

contained

an

obvious

inconsistency,

discussed

above,

undermines the rationality of the ALJ’s analysis of treating
psychiatrist Dr. Spurling’s opinion and constitutes an improper
cherry-picking of the record. See Nix v. Astrue, No. 07–CV–344,
2009

WL

3429616,

at

*6

(W.D.N.Y.

Oct.

22,

2009)

(“It

is

a

fundamental tenet of Social Security law that an ALJ cannot pick
and choose only parts of a medical opinion that support his
determination.”) (citing Robinson v. Barnhart, 366 F.3d 1078, 1083
(10th Cir. 2004); other citation omitted).
Moreover, in performing the special psychiatric technique at
steps two and three, the ALJ assigned “marked” limitations to
Plaintiff in the domain of social functioning. (T.553). In support
of this finding, the ALJ relied on Plaintiff’s report to Dr. Lin on
June

20,

2012,

“that

she

was

socially

withdrawn,

and

was

particularly anxious around crowds or in social situations,” “does
not like to leave her house by herself, and feels like other people
are out to get her,” and she testified that she “did not get along
with most of her coworkers, and does not like being around other
people.” (T.553). It therefore is unclear to the Court why the ALJ

-16-

would

assign

“marked”

limitations

to

Plaintiff’s

ability

to

function socially yet reject Dr. Lin’s and Dr. Spurling’s opinions
about Plaintiff’s limitations in dealing with stress and navigating
social relationships.
C.
To

Credibility Assessment
support

a

credibility

finding

regarding

a

claimant’s

subjective complaints, the ALJ must do more than merely refer to
the record evidence as a whole but must identify evidence in a
sufficiently specific fashion so as to permit meaningful appellate
review.

See 96-8p, 1996 WL 374186, at *7 (S.S.A. July 2, 1996)

(“The RFC assessment must include a discussion of why reported
symptom related functional limitations and restrictions can or
cannot reasonably be accepted as consistent with the medical and
other evidence.”); SSR 96-7p, 1996 WL 374186, at *2 (S.S.A. July 2,
1996) (“The determination or decision must contain 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

adjudicator gave to the individual’s statements and the reasons for
that weight.”).
The Court finds that the ALJ’s credibility assessment relating
to Plaintiff’s symptomatology due to her mental impairments is not
supported by substantial evidence. The ALJ found that Dr. Spurling
noted “on several occasions” that Plaintiff was “doing well with

-17-

improved

mood

on

her

medications.”

(T.559).

However,

“[t]he

Regulations clearly recognize that the functioning of an individual
with a mental impairment may ‘vary considerably over time.’” Warren
v.

Astrue,

No.

09-CV-6217,

2010

WL

2998679,

at

*7

(W.D.N.Y.

July 27, 2010) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1
§ 12.00(D)(2) (former)).3 The ALJ also found it significant that
Plaintiff

was

not

psychotic,

suicidal,

or

ever

required

hospitalization; however, the Court is unaware of any requirement
that, in order to be considered disabled due to mental impairments,
a claimant must exhibit certain symptoms or undergo in-patient
care. To the extent that the ALJ found that Plaintiff’s ability
perform childcare activities undermines her psychiatric complaints,
this was error. See Harris v. Colvin, 149 F. Supp.3d 435, 444
(W.D.N.Y. 2016) (“The ALJ . . . 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[,]’”
(quoting SSR 96–8p, 1996 WL 374184, at *2 (S.S.A. July 2, 1996);

3

The current version of the regulation similarly recognizes that a temporary
improvement in a mental impairment does not fatally undermine a disability claim.
See 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00F(4)(a) (“[The SSA] will not
find that you are able to work solely because you have a period(s) of improvement
(remission), or that you are disabled solely because you have a period of
worsening (exacerbation), of your mental disorder.”); id., § 12.00F(4)(b) (“If
you have a mental disorder involving exacerbations and remissions, you may be
able to use the four areas of mental functioning to work for a few weeks or
months. Recurrence or worsening of symptoms and signs, however, can interfere
enough to render you unable to sustain the work.”).

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citing Gentle v. Barnhart, 430 F.3d 865, 868 (7th Cir. 2005)
(“[T]aking 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.”); other
citations omitted).
D.

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
remanding for a rehearing. The standard for directing a remand for
calculation of benefits is met where the record persuasively
demonstrates the claimant’s disability, Parker v. Harris, 626 F.2d
225, 235 (2d Cir. 1980), and there is no reason to conclude that
the 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).
As discussed above, the Court finds that the ALJ erred in
failing to give controlling weight to the opinions of treating
psychiatrist Dr. Spurling and cherry-picked the record in order to
justify assigning the greatest weight to the least restrictive
portions of consultative psychologist Dr. Lin’s opinion, which also

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contained

an

unexplained

inconsistency

(i.e.,

Plaintiff’s

psychiatric impairments do not appear to be significant enough to
interfere with her ability to function on a daily basis, yet
Plaintiff cannot deal with stress and cannot adequately relate to
people). (T.403). At the hearing on remand, the VE testified that
an individual would not be able to sustain employment with any of
the following limitations identified by Dr. Spurling: (1) being
absent

from

occasionally

work

more

unable

to

than

two

respond

times

per

appropriately

month,
to

(2)

being

criticism

or

supervision, (3) being off-task 15 percent or more of the work-day
or (4) being unable to tolerate ordinary work stress. (T.631-33).
The Court finds that had the opinions of Plaintiff’s treating
psychiatrist Dr. Spurling been accorded their proper weight, and an
appropriate credibility determination been made, a finding that
Plaintiff is disabled due to her mental impairments is compelled.
Based on this finding that Plaintiff’s mental impairments,
standing

alone,

are

disabling,

the

Court

need

not

address

Plaintiff’s other arguments regarding errors in the ALJ’s physical
RFC assessment and analysis of the credibility of Plaintiff’s
subjective physical complaints.
VI.

Conclusion
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision was legally erroneous and unsupported by
substantial evidence. Accordingly, Defendant’s motion for judgment

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on the pleadings is denied, and Plaintiff’s motion for judgment on
the pleadings is granted to the extent that the Commissioner’s
decision

is

reversed,

and

the

matter

is

remanded

for

the

calculation and payment of benefits. The Clerk of Court is directed
to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

April 4, 2018
Rochester, New York.

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