Morton v. Commissioner of Social Security

Filing 13

DECISION AND ORDER granting 8 Motion for Judgment on the Pleadings; denying 10 Motion for Judgment on the Pleadings. Plaintiff's motion (ECF No. 8) for judgment on the pleadings is granted, Defendant's cross-motion (ECF No. 10) for th e same relief is denied, and this matter is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Decision and Order. Signed by Hon. Charles J. Siragusa on 3/31/21. (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
PAUL M., 1
-vs-

Plaintiff

DECISION AND ORDER
19-CV-6822 CJS

COMMISSIONER OF SOCIAL
SECURITY,

Defendant.
________________________________________
INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final
determination of the Commissioner of Social Security (“Commissioner” or “Defendant”)
which denied the application of Plaintiff for Social Security Disability Insurance (“SSDI”)
benefits. Now before the Court is Plaintiff’s motion (ECF No. 8) for judgment on the
pleadings and Defendant’s cross-motion (ECF No. 10) for the same relief. For the
reasons discussed below, Plaintiff’s application is granted, Defendant’s application is
denied, and this matter is remanded to the Commissioner for further administrative
proceedings.
STANDARDS OF LAW
The Commissioner decides applications for SSI benefits using a five-step
sequential evaluation:

The Court’s Standing Order issued on November 18, 2020, indicates in pertinent part that, “[e]ffective
immediately, in opinions filed pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), in
the United States District Court for the Western District of New York, any non-government party will be
identified and referenced solely by first name and last initial.”

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A five-step sequential analysis is used to evaluate disability claims. See
20 C.F.R. §§ 404.1520, 416.920. First, the Commissioner considers
whether the claimant is currently engaged in substantial gainful activity. If
he is not, the Commissioner next considers whether the claimant has a
severe impairment which significantly limits his physical or mental ability to
do basic work activities. If the claimant suffers such an impairment, the
third inquiry is whether, based solely on medical evidence, the claimant
has an impairment which is listed in the regulations [or medically equals a
listed impairment]. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s severe
impairment, he has the residual functional capacity [(“RFC”)] to perform
his past work. 2 Finally, if the claimant is unable to perform his past work,
the Commissioner then determines whether there is other work which the
claimant could perform. The claimant bears the burden of proof as to the
first four steps, while the Commissioner bears the burden at step five.
Colvin v. Berryhill, 734 F. App'x 756, 758 (2d Cir. 2018) (citations and internal quotation
marks omitted)
An unsuccessful claimant may bring an action in federal district court to
challenge the Commissioner’s denial of the disability claim. In such an action, “[t]he
court shall have 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.A. § 405(g)
(West). Further, Section 405(g) states, in relevant part, that “[t]he findings of the
Commissioner of Social security as to any fact, if supported by substantial evidence,
shall be conclusive.”

Residual functional capacity “is what the claimant can still do despite the limitations imposed by his
impairment.” Bushey v. Berryhill, 739 F. App'x 668, 670–71 (2d Cir. 2018) (citations omitted); see also,
1996 WL 374184, Titles II & Xvi: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P
(S.S.A. July 2, 1996).
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The issue to be determined by the court is whether the Commissioner’s
conclusions “are supported by substantial evidence in the record as a whole or are
based on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.
1998); see also, Barnaby v. Berryhill, 773 F. App'x 642, 643 (2d Cir. 2019) (“[We] will
uphold the decision if it is supported by substantial evidence and the correct legal
standards were applied.”) (citing Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) and
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).”).
“First, the [c]ourt reviews the Commissioner's decision to determine whether the
Commissioner applied the correct legal standard.” Tejada v. Apfel, 167 F.3d 770, 773
(2d Cir. 1999); see also, Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (“[W]here an
error of law has been made that might have affected the disposition of the case, this
court cannot fulfill its statutory and constitutional duty to review the decision of the
administrative agency by simply deferring to the factual findings of the [administrative
law judge] [(“]ALJ[“)]. Failure to apply the correct legal standards is grounds for
reversal.”) (citation omitted).
If the Commissioner applied the correct legal standards, the court next “examines
the record to determine if the Commissioner's conclusions are supported by substantial
evidence.” Tejada v. Apfel, 167 F.3d at 773. Substantial evidence is defined as “more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (citation omitted).
The substantial evidence standard is a very deferential standard of
review—even more so than the ‘clearly erroneous’ standard, and the
Commissioner’s findings of fact must be upheld unless a reasonable
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factfinder would have to conclude otherwise.” Brault v. Social Sec. Admin.,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (emphasis in
original). “An ALJ is not required to discuss every piece of evidence
submitted, and the failure to cite specific evidence does not indicate that
such evidence was not considered.” Id.
Banyai v. Berryhill, 767 F. App'x 176, 177 (2d Cir. 2019), as amended (Apr. 30, 2019)
(internal quotation marks omitted).
In applying this standard, a court is not permitted to re-weigh the evidence. See,
Krull v. Colvin, 669 F. App'x 31, 32 (2d Cir. 2016) (“Krull's disagreement is with the
ALJ's weighing of the evidence, but the deferential standard of review prevents us from
reweighing it.”); see also, Riordan v. Barnhart, No. 06 CIV 4773 AKH, 2007 WL
1406649, at *4 (S.D.N.Y. May 8, 2007) (“The court does not engage in a de novo
determination of whether or not the claimant is disabled, but instead determines
whether correct legal standards were applied and whether substantial evidence
supports the decision of the Commissioner.”) (citations omitted).
FACTUAL and PROCEDURAL BACKGROUND
The reader is presumed to be familiar with the facts and procedural history of this
action. The Court will refer to the record only as necessary to address the errors
alleged by Plaintiff.
Plaintiff’s medical history includes pain in the lumbo-sacral spine with sciatica
secondary to degenerative disc disease, history of coronary artery disease with
successful bypass surgery, high cholesterol, tobacco abuse, history of alcohol abuse
with resulting pancreatitis, history of brain lesion/meningioma, anxiety and depression.

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Plaintiff also has a significant history of dependency on prescription opiates and
benzodiazepines, which he claims are needed to address his severe back pain and/or
to prevent anxiety. Tr. 275, 281, 313, 327, 346, 352-353. 384, 418, 526, 530-532.
Plaintiff’s manipulative drug-seeking behavior (through dishonesty, at times) is
referenced throughout his treatment records. See, e.g., Tr. 384, 556 (tried to get
medications in other places, while simultaneously trying to get them from primary doctor
without telling him). Plaintiff has resisted his primary care doctor’s suggestions that he
reduce his use of such medications, and treatment providers have been hesitant to
force the issue out of concern that Plaintiff’s anxiety will increase. Tr. 327, 574 (“Patient
is always in crisis so have not started tapering.”). On one occasion, Plaintiff angrily
threw a pitcher of water at a nurse because she was not getting him the medications he
wanted. Tr. 530. On other occasions Plaintiff has threatened suicide, or made a
suicidal gesture, to obtain narcotics and benzodiazepines. See, e.g., Tr. 525-526, 537,
553 (“Patient goes to great lengths to get opiates and benzodiazepines when he runs
out of his prescriptions.”). Otherwise, when Plaintiff has the medications that he wants,
he has routinely denied any intention to actually commit suicide. See, e.g., Tr. 486.
Plaintiff has been content to rely on his medications, and has rejected suggestions by
his doctors to quit smoking, lose weight, exercise and attend physical therapy and
psychotherapy.
Treatment providers have noted that Plaintiff’s depression is largely secondary to
the downward spiral that his life circumstances took after his real estate business failed
and he encountered severe financial reversals. See, e.g., Tr. 353 (“depression,
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uncontrolled due to life events.”). In that regard, Plaintiff has commented that he went
from making $80,000 per year to living in a homeless shelter. Although, Plaintiff
reportedly had some degree of depression and anxiety even before his finances
collapsed. Tr. 551 (“Patient has had a history of depression in the past but started to get
more depressed in 2008 when the real estate business started to get into trouble[.]”).
Between 2014 and 2015, Plaintiff was jailed for seven months related to charges
of arson and criminal mischief, after he started a fire in his apartment. A report by
Emergency Medical Services (“EMS”) on the night of the fire indicates that Plaintiff
started the fire intentionally out of anger, after another tenant sprayed water on him. Tr.
436-439, 509, 643. 3 However, Plaintiff has repeatedly told other treatment providers
that the fire was accidental and that he is unsure how it started.
Before this incident landed him in jail, Plaintiff had his belongings packed in
boxes and was planning an imminent move to State College, Pennsylvania, to return to
college and study music. Tr. 689. In that regard, Plaintiff stated that he had “incredible
music talent,” and there are other references in the record to him being a bass guitar
player. Tr. 689.
While in jail, Plaintiff indicated that he was enraged and depressed because his
family would not post his $250 bail. Tr. 632. Plaintiff stated that he intended to live

On March 29, 2016, Plaintiff told an evaluating psychiatrist that he was unsure how the fire had started,
and that he had been awakened by the smell of smoke, Tr. 418, 551, but notes from the Emergency
Medical Services personnel who responded to the fire indicated that Plaintiff admitted starting the fire in
anger, and that he had snuck out of his apartment after firefighters arrived and then gotten into his car,
where he feigned unconsciousness. Tr. 436. Plaintiff was lethargic and had pinpoint pupils, suggestive
of drug use. Tr. 496. In jail, Plaintiff indicated to his therapist that his being in jail resulted from him
“losing his head with a neighbor.” Tr. 643.

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independently and return to work once he was released. Tr. 632 (“I am just going to sit
here until my trial is over and go out there and do my thing. Make some money and
forget about them.”). Plaintiff further told his jail counselor that he was interested in
returning to college. Tr. 632 (“He is feeling hopeless and helpless, but not suicidal. He
has future orientation about getting out of jail and going to college.”). 4 Plaintiff also
acknowledged his dependence on valium and expressed the desire to be weaned off
the drug, though this did not happen. Tr. 632 (“I want more medications. More
antidepressants. Please take me off the valium very slowly and hit me hard with
Librium, it is going to be a rough ride.”). In that regard, a jail doctor expressed concern
about taking Plaintiff off valium, since Plaintiff had been on the drug so long, and since
the doctor feared it would cause Plaintiff’s anxiety to increase. Tr. 678 (“[Inmate] has
chronic anxiety and panic disorder. He has been on valium for years [and] has very poor
coping skills. His anxiety is better controlled on this medication [and] he might
decompensate further if I [discontinue it.]”). The doctor noted, though, that the plan
was to eventually get Plaintiff off valium. Tr. 678 (“Working on taking him off but he
might not do well on Librium due to depression.”). Jail psychiatric staff reported that
Plaintiff was “very medication seeking and ha[d] very poor coping skills.” Tr. 637.
While in jail, Plaintiff was depressed and angry about his circumstances, which
initially caused jail staff to place him on suicide observation, but later his mental status
was otherwise judged to be normal. Tr. 629-631, 635. However, Plaintiff argued to jail
staff that his regular medications should be increased, since he had much more stress
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Plaintiff already has an undergraduate degree.

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from being incarcerated. Tr. 657, 665. Plaintiff also requested additional pain
medication after he reportedly hurt his lower back after slipping in the jail shower.
Plaintiff, though, indicated that he exercised in the jail’s gym and was able to walk over
a mile at one time. Tr. 63. Plaintiff also asked jail staff to contact his attorney to check
on the status of his SSDI application. Tr. 646.
After Plaintiff was released from jail, he had no job, no property and no family
support, with the lack of family support being reportedly due to family members’
perception of him as a drug abuser. 5 Tr. 328, 645. Consequently, Plaintiff lived first in
a homeless shelter and then in a rooming house. Plaintiff later obtained some sales
jobs for brief periods, but he either quit them or was fired. 6
On August 26, 2016, Plaintiff’s long-time primary care doctor, Douglas Stockman,
M.D. (“Stockman”), completed a functional capacity assessment (Tr. 702-703) indicating
that Plaintiff had lumbo-sacral-disc dessication and meningioma; that his condition was
stable but would not improve; that he was not experiencing headaches presently; that
his back pain was usually 5/10 but would increase to 9/10 when bending, twisting,
turning or lifting; that his pain would “constantly” interfere with his attention and
concentration needed to do even simple tasks; that he could rarely lift 20 pounds and
occasionally lift 10 pounds; that he was unable to walk even a single block, since he
could only walk slowly and needed to stop after 5 minutes; that he could sit, stand and

Plaintiff has reported feeling betrayed and abandoned by most of the people in his life. Tr. 534 (“They
are all a bunch of spiteful liars.”).
6 On March 29, 2016, Plaintiff told an evaluator that he had had six jobs since being released from jail. Tr.
32.
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walk all for less than 2 hours in an 8-hour workday; that he needed to change position
frequently; that he could sit for 45 minutes at a time and stand for 10 minutes at a time;
that pain significantly impaired his daily functioning; that his conditions would result in
him missing more than 4 days of work per month; and that he had “significant
depression and anxiety.” Tr. 702-703.
On August 29, 2016, Barbara Gawinski, Ph.D., LMPA (“Gawinski”) completed a
Mental Impairment Questionnaire. (Tr. 704-706). Gawinski stated that Plaintiff had
treated with her between January 2016 and July 2016, and had attended 17
appointments before stopping treatment. Tr. 704. Treatment notes indicate that at his
last visit with Gawinski, Plaintiff became angry with her about a political issue and then
declined to schedule any further appointments. Gawinski’s axis I diagnoses were
major depressive disorder, single episode (296.22) and anxiety disorder not otherwise
specified (300.00). Regarding the course of treatment, Gawinski stated that Plaintiff’s
mood had improved, with increased optimism and decreased irritability, but that he had
become angry, irritable, critical and hostile at their last visit. Tr. 704. Gawinski reported
the following signs and symptoms supporting her diagnoses: Anhedonia, intense and
unstable interpersonal relationships, thoughts of suicide, mood disturbance, emotional
lability, deeply ingrained maladaptive patterns of behavior, inflated self-esteem and
intrusive thoughts and persistent disturbances of mood. Tr. 704-705. Gawinski stated
that Plaintiff had marked restriction in activities of daily living, marked difficulties in
maintaining social functioning and moderate deficiencies in maintaining attention,
concentration or pace, and that he had had 3 episodes of decompensation lasting at
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least 2 weeks during the preceding 12 months. Tr. 705. Gawinski reported that Plaintiff
was unable to function outside of a highly supportive living arrangement and that he
was completely unable to function independently outside of his home. Tr. 706. Finally,
Gawinski noted that Plaintiff had demonstrated an inability to get and maintain a steady
job. Tr. 706.
Some time after August 2013, psychologist Mary C. Grant, Ph.D. (“Grant”) wrote
an undated summary of her treatment with Plaintiff. Tr. 707-708. Granted stated that
Plaintiff had treated with her off-and-on “for brief periods over the years.” Grant stated
that in 2013 Plaintiff had been diagnosed with major depressive disorder, recurrent,
severe, without psychotic features, and personality disorder not otherwise specified with
borderline and narcissistic traits. Tr. 707. Grant indicated that she had last seen
Plaintiff for four office visits in 2013, at which time his depression and anxiety had
worsened since the prior year, and that his judgment and insight were quite limited, and
his “discomfort level had increased.” Tr. 707. Grant’s statement did not purport to
evaluate any particular functional limitations, but noted that Plaintiff had been offered a
job by his cousin. Tr. 707 (Elsewhere, the record indicates that Plaintiff was later fired
from that job).
On October 2, 2014, Grant wrote a more-detailed disability assessment. Tr. 311317. Granted stated that the expected duration of Plaintiff’s condition was “indefinite”;
that he had also been treated for alcoholism and Xanax addiction; that after his realty
business failed he “began to function less well and was overwhelmed at times with
anxiety and depression”; that when last seen his attitude was “negative, desperate,
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looking for someone to support him until he got on his feet”; that his thoughts were
unrealistic, with poor judgment and planning ability; and that he appeared depressed,
tired, sad, and angry that he was “not getting a positive response from people.” Tr. 312313. Grant estimated that Plaintiff’s judgment and insight were “impaired” but that he
had normal attention and concentration, orientation, memory, information, and ability to
perform calculations. Tr. 314. Grant reported that Plaintiff had suicidal ideation but no
plan. Tr. 315. Grant stated that Plaintiff seemed able to perform his activities of daily
living, but that he felt too anxious and depressed to work. Tr. 315. Grant stated that
Plaintiff had “limited” abilities with regard to maintaining sustained concentration and
persistence, interacting socially and adapting. Granted, noted, for example, that
Plaintiff “had problems with others,” felt entitled to express his thoughts without
repercussions, did not deal with change and did not set realistic goals. Tr. 316. Grant
stated that she had suggested to Plaintiff that he try to get a simple job to avoid
homelessness, and that she had given him strategies for dealing with depression. Tr.
315. However, Grant indicated that Plaintiff presently lacked the mental ability to work
because he was “obsessed with his problems.” Tr. 315.
On March 29, 2016, Plaintiff was evaluated by treating psychiatrist Michael
Privitera, M.D. (“Privitera”), who reported that Plaintiff’s mood was “anxious and
depressed,” but that his examination was otherwise normal in most respects, and that
he had above-average intelligence. Tr. 553. Privitera’s diagnosis was “major
depression, recurrent with melancholia. Rule out generalized anxiety disorder.
Personality characteristics play a role that seem amplified by depression.” Tr. 553.
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Plaintiff asked Privitera for a valium prescription, claiming that his prescription was due
to be refilled the next day, and Privitera commented that it “would be good to try to
eventually wean this down somewhat but seems like [the valium is] necessary until we
can push up his BusPar dose.” Tr. 553.
At the time of the administrative hearing, Plaintiff was 50 years of age and had
earned a bachelor’s degree. Plaintiff’s work history primarily involved sales, particularly
as a realtor. Plaintiff had last worked earlier that year, for about six weeks as a car
salesman, but he had quit that job because it had required him to stand outside in the
cold and compete with other salesmen for customers. Tr. 48-49. Plaintiff told the ALJ
that he had been treating with Dr. Gawinski, and that she and he had agreed to take a
break and would resume treatment shortly. Tr. 51, 59. However, as discussed earlier,
that is not what Gawinski’s notes indicate. Plaintiff stated that he could walk between a
quarter mile and a half mile, and stand for a half hour. Tr. 54. Plaintiff acknowledged
that he had declined to pursue vocational training that his therapist had recommended.
Tr. 55. For daily activities, Plaintiff stated that he went on his laptop, wrote in a journal,
performed household chores, went to church, drove to appointments, and listened to
music or talk radio. Tr. 48, 56-57, 61. Plaintiff testified that he did not have problems
interacting with people, but that he was not interested in seeing people that he knew
since he was embarrassed that his life was currently a “train wreck.” Tr. 61.
On September 26, 2016, an ALJ issued a decision finding that Plaintiff was not
disabled at any time between the alleged disability onset date (June 1, 2013) and the
date of the decision. Applying the sequential evaluation discussed earlier the ALJ
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found, at steps one, two and three, respectively, that Plaintiff was not engaged in
substantial gainful activity; that he had severe impairments (coronary artery disease,
degenerative disc disease, mood disorder with personality component, anxiety disorder
and history of polysubstance abuse in remission) and a non-severe impairment
(meningioma); and that none of the impairments, either singly or in combination, met or
medically equaled a listed impairment. Prior to reaching step four of the sequential
evaluation, the ALJ essentially found that Plaintiff had the RFC to perform medium work
with various postural and environmental limitations, and with only brief and superficial
contact with co-workers, supervisors and the public. Tr. 28. At step four, the ALJ found
that Plaintiff could not perform any past relevant work, but at step five the ALJ found,
based on testimony from a vocational expert (“VE”) in response to hypothetical
questions, that Plaintiff could perform other jobs and was therefore not disabled.
In reaching these conclusions the ALJ discussed and evaluated the treatment
records and medical opinions quite extensively. Tr. 26-37. In finding that Plaintiff did
not meet a listed mental impairment, the ALJ noted Gawinski’s opinion but assigned it
“little to no weight,” stating that, “While the claimant does have some mental limitations,
his allegations [sic] are not to the extent alleged.” Tr. 27. The ALJ then reviewed
various evidence in the record that she maintained showed that Plaintiff had only mild
restriction in activities of daily living, moderate difficulty in social functioning, mild
difficulty in maintaining concentration, persistence or pace, and no extended periods of
decompensation. Tr. 27-28. The ALJ did not cite any medical opinion that was contrary
to Gawinski’s conclusions, nor did she mention Dr. Grant’s opinions.
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In connection with her RFC finding, the ALJ reviewed the evidence and, with
regard to mental impairments, noted Plaintiff’s intermittent treatment history and drugseeking behaviors, including using apparently insincere claims of suicidal ideation to
obtain medications. Tr. 34. The ALJ also noted Plaintiff’s decision in 2015 not to seek
additional treatment after he learned that such treatment would first need to focus on
alcohol dependence. Tr. 34. The ALJ further discussed Plaintiff’s stated activities of
daily living (when not working) and found them to be “rather normal, though he reports
problems.” Tr. 34. The ALJ stated, in pertinent part:
Overall, it does not appear that a mental (or physical) impairment
prevented the claimant from being more active, should he wish to be.
The claimant worked when he had an opportunity, to his credit. However,
remaining unemployed because of a claimant’s inability to get work or
hiring practices of employers are not factors in deciding whether a
claimant is disabled. Finances appear to be a large impetus in this case.
The claimant was ‘unemployed’ as opposed to disabled. The claimant
appears to be [a] rather astute individual of above-average intelligence.
Though he has only attempted skilled work, other work exists. Though
the claimant has severe impairments, no evidence indicates workprecluding limitations for a finding of disabled under the Social Security
Act.
Tr. 34 (citations to record omitted). The Appeals Council declined to review the ALJ’s
decision, making it the Commissioner’s final decision.
In this action, Plaintiff asserts primarily that the RFC finding was erroneous since
the ALJ failed to properly apply the treating physician rule to the opinions of Drs. Grant
and Gawinski. On this point, Plaintiff states: “First, it was an abuse of discretion by the
ALJ to not weigh, summarize, or evaluate the opinion of Dr. Grant from October 2,
2014.” Plaintiff argues that this error was compounded by the fact that the ALJ
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considered Dr. Grant’s other, less detailed statement, and gave it little weight,
purportedly since it lacked the very information that was contained in the report she did
not consider. Plaintiff further contends that the ALJ did not provide sufficiently good
reasons for the weight that was given to Dr. Gawinski’s opinion, and selectively “cherry
picked” information from the treatment notes. Further, Plaintiff alleges that the ALJ
arbitrarily substituted her own opinion for that of competent medical opinion which was
not contradicted by any other medical opinion. Plaintiff argues that he has listed
impairments and that remand solely for calculation of benefits is required, since there is
no contrary evidence. 7
Defendant disputes Plaintiff’s arguments and maintains that the ALJ’s decision is
free of reversible legal error and supported by substantial evidence
The Court has carefully reviewed and considered the parties’ submissions and
finds, for the reasons discussed below, that the matter must be remanded to the
Commissioner for further administrative proceedings.
DISCUSSION
Plaintiff primarily contends that the ALJ erred in failing to consider Dr. Grant’s
opinion dated October 2, 2014. The Court agrees.
Of course, as noted above, an ALJ is not required to discuss every piece of
evidence submitted, and the failure to cite specific evidence does not indicate that such

Pl’s. Mem. of Law at p. 25 (“[T]wo separate treating psychologists and extensive clinical findings within
the mental status examinations constitute substantial evidence meeting the requirements of both Listings
12.04 and 12.06, and Plaintiff’s motion should be granted with reversal and remand to the Commissioner
solely for the calculation of benefits.”).

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evidence was not considered. Here, however, there is a further indication that the ALJ
did not consider the subject opinion.

In this regard, there were two different opinions

from Dr. Grant. The first, Exhibit 3F, was a standard, detailed, multi-page RFC
assessment form, while the second, Exhibit 18F, was a brief letter without any particular
functional assessments. Tr. 311, 707. The ALJ referenced Exhibit 18F twice, but gave
it only “limited weight” purportedly because it lacked specific functional limitations, was
based on Plaintiff’s self-reported symptoms and was not supported by Plaintiff’s
“conservative mental health treatment.” Tr. 36. Meanwhile, the ALJ did not discuss or
cite Exhibit 3F at all, which is significant since that exhibit, which opines that Plaintiff is
far more limited than what the ALJ found, sets forth specific functional limitations and
details the supporting findings upon which it was based. Consequently, there seems to
be only two possibilities: Either the ALJ failed to consider Grant’s more-detailed opinion,
Exhibit 3F, or she impermissibly “cherry-picked” by only discussing evidence from Grant
that could easily be rejected, while ignoring Grant’s more detailed statement. The
Court assumes that the ALJ did the former and not the latter.
Defendant does not really address Plaintiff’s argument on this point. That is,
Defendant does not try to argue that the ALJ actually considered Exhibit 3F. Nor does
Plaintiff argue that the error was harmless due to the exhibit being redundant or
otherwise insignificant. Instead, Defendant discusses the contents of Exhibit 3F, which
the ALJ did not do, and offers arguments about the purported inadequacies of the
exhibit. Def. Memo of Law at pp. 7-8, 20-21, 24, 29. In effect, Defendant now tries to
perform the analysis of Exhibit 3F that the ALJ was required to perform. However, “[a]
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reviewing court may not accept appellate counsel's post hoc rationalizations for agency
action.” Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (citation and internal quotation
marks omitted).
Remand is appropriate where it is shown that an ALJ failed to consider relevant
and probative evidence. Lopez v. Sec'y of Dep't of Health & Hum. Servs., 728 F.2d 148,
150–51 (2d Cir. 1984) (“We have remanded cases when it appears that the ALJ has
failed to consider relevant and probative evidence which is available to him.”). The
Court concludes that the ALJ erred in that regard and that remand is therefore required
for consideration of the overlooked evidence. 8
The Court notes one further problem with the ALJ’s decision, which is the
assertion, quoted earlier, as follows:
[R]emaining unemployed because of a claimant’s inability to get work or
hiring practices of employers are not factors in deciding whether a
claimant is disabled. Finances appear to be a large impetus in this case.
The claimant was ‘unemployed’ as opposed to disabled.
Tr. 34. Insofar as this statement implies that the reason Plaintiff was unemployed was
because of the “inability to get work” or “the hiring practices of employers,” it is
inaccurate since it ignores the fact that Plaintiff managed to “get” many jobs during the
relevant period but was unable to keep any of them for very long. There is little if any
discussion or exploration by the ALJ of the particular circumstances that led to Plaintiff

The Court disagrees with Plaintiff’s assertion that remand solely for calculation of benefits is required.
Despite the ALJ’s error with regard to Dr. Grant’s opinion, the record is not so clearly one-sided as to
warrant a remand solely for that purpose.

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losing most of those jobs, or of how, if at all, those circumstances were related to
Plaintiff’s alleged mental impairments. Consequently, the ALJ’s conclusion that Plaintiff
was unemployed as opposed to disabled needs to be better explained.
CONCLUSION
For the reasons discussed above, Plaintiff’s motion (ECF No. 8) for judgment on
the pleadings is granted, Defendant’s cross-motion (ECF No. 10) for the same relief is
denied, and this matter is remanded to the Commissioner pursuant to sentence four of
42 U.S.C. § 405(g) for further administrative proceedings consistent with this Decision
and Order.
So Ordered.
Dated: Rochester, New York
March 31, 2021

ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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