The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-2385 (JFB)
_____________________
TAMARI A. GARDNER,
Plaintiff,
VERSUS
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________
MEMORANDUM AND ORDER
August 8, 2019
____________
JOSEPH F. BIANCO, Circuit Judge (sitting therefore, that plaintiff was not disabled. The
by designation): Appeals Council denied plaintiff’s request
for review, making the ALJ’s decision the
Plaintiff Tamari A. Gardner commenced
final decision of the Commissioner.
this action pursuant to 42 U.S.C. § 405(g) of
the Social Security Act on May 19, 2016, Plaintiff now moves for judgment on the
challenging the final decision of the Acting pleadings pursuant to Federal Rule of Civil
Commissioner of Social Security (the Procedure 12(c). The Commissioner opposes
“Commissioner”) denying plaintiff’s the motion and cross-moves for judgment on
application for Social Security disability the pleadings. For the reasons set forth
benefits on March 22, 2016. An below, the Court denies plaintiff’s motion for
Administrative Law Judge (“ALJ”) judgment on the pleadings, denies the
determined that plaintiff had the residual Commissioner’s cross-motion for judgment
functional capacity to perform a full range of on the pleadings, and remands the case to the
work at all exertional levels, with certain ALJ for further proceedings consistent with
non-exertional limitations. The ALJ found this Memorandum and Order.
that there were a significant number of jobs
in the national economy that plaintiff could
perform despite these limitations, and,
I. FACTUAL BACKGROUND Plaintiff’s IEP report further provided
that plaintiff had “social and emotional needs
The following summary of the relevant
that should be addressed through special
facts is based upon the Administrative
education,” including that plaintiff had
Record (“AR”) developed by the ALJ. (ECF
difficulty undertaking new or challenging
No. 5.) A more exhaustive recitation is
tasks; lacked confidence in social
contained in the parties’ submissions to the
relationships; and needed to develop
Court and is not repeated herein.
problem-solving skills. (Id. at 367.) In
A. Personal and Education History addition, the IEP reported that plaintiff “has
difficulty in her ability to engage in
Plaintiff was born on May 24, 1993. (AR appropriate social behaviors, along with
53.) Up until the date plaintiff turned 18, she difficulty in reading decoding, reading
received child’s disability benefits under comprehension, [and] math calculation,
Title XVI. (Id. at 90.) which interferes with participation in age
Plaintiff attended Sewanhaka Central appropriate activities.” (Id. at 368.)
School District, where she completed the Plaintiff’s 2008-2009 Annual Student
tenth grade. (Id. at 53-54, 255.) While in Profile reported that, with respect to
school, plaintiff attended special education “Vocational / Transition Planning,” plaintiff
classes. (Id. at 54.) More specifically, “has difficulty sustaining working on job
plaintiff participated in the Nassau BOCES tasks for the required amount of time,” and
Center for Community Adjustment (“CCA”) that she “needs to increase the performance
program, which is an ungraded program. (Id. related skills in job/work settings (e.g.,
255.) Plaintiff was placed in this program adaptability, behavior/interactions,
because she “requires special instruction in productivity, independent functioning).” (Id.
an environment with a smaller student-to- at 380.) The annual profile further reported
teacher ratio and minimal distractions in that, in the category of social development,
order to progress in achieving the learning plaintiff “generally demonstrates appropriate
standards.” (Id. 366.) Plaintiff’s class had a interactions with select authority figures” and
ratio of “6-1+1.” (Id. 365.) “is aware of her personal feelings,” but that
Sewanhaka Central High School District plaintiff “needs to express her thoughts and
prepared Individualized Education Program feelings more appropriately”; “becomes
(“IEP”) reports for plaintiff while she was in anxious/stressed in social situations”; and
attendance. (Id. 257.) “has difficulty expressing anger in an
appropriate manner.” (Id. at 381.)
Plaintiff’s IEP report states that plaintiff’s
cognitive levels/abilities were “below On April 22, 2010, Sewanhaka Central
age/grade expectations” (id.), and that her High School District conducted a
social development levels/abilities were Psychological Re-Evaluation of plaintiff.
“significant[ly] delay[ed]” with respect to (Id. at 508-10.) The evaluation noted that,
“peers and authority figures” (id. at 258). when plaintiff entered the CCA program in
Plaintiff was exempt from learning a September 2008, she “initially demonstrated
language other than English because her difficulties engaging in positive peer
“disability adversely affects the ability to interactions”; “was often angry,
learn a language.” (Id. at 368.) argumentative and threatening”; and “used
inappropriate language and would threaten
classmates with physical retaliation.” (Id. at
509.) The evaluation further noted that had been diagnosed as learning disabled and
plaintiff was participating “in a community emotionally disturbed since childhood; and
work-site at Shop-Rite.” (Id.) attended a BOCES program until eleventh
grade, when she dropped out after having her
The Psychological Re-Evaluation also
child. (Id. at 443.) Dr. Robotti also evaluated
reported the following WAIS-IV test scores
plaintiff’s history of sexual and/or physical
for plaintiff: 72 for verbal comprehension;
abuse or neglect, and reported that plaintiff
67 for perceptual reasoning; 80 for working
was raped by her ex-boyfriend in 2007 and
memory; 76 for processing speed; 67 for
was physically abused by her child’s father
general ability; and a full scale IQ of 68. (Id.
while plaintiff was pregnant. (Id.) Dr.
at 508.) Plaintiff’s full scale IQ score was 74
Robotti further reported that plaintiff denied
in 2007. (Id.)
having any legal problems. (Id.)
B. Relevant Medical History
In connection with plaintiff’s mental
In 2010, plaintiff received treatment for status examination, Dr. Robotti reported
postpartum depression and bipolar disorder plaintiff’s behavior as appropriate (id. at
through the Federation Employment & 444); awareness/attention as alert (id.);
Guidance Service (“FEGS”). (Id. at 288.) attitude as cooperative (id.); emotional affect
Plaintiff returned to FEGS for treatment in as constricted and labile (id. at 446); mood as
February 2012, where she had weekly anxious and irritable (id.); congruence of
psychotherapy sessions and monthly sessions mood with situation and content as
with a psychiatrist for medication appropriate (id.); judgment as appropriate for
management purposes, detailed below. age (id.); insight into her illness as
appropriate for age (id.); impulse control as
1. Dr. Flavia Robotti appropriate for age (id.); and noted that
On March 26, 2012, plaintiff was plaintiff experienced feelings of helplessness
evaluated by FEGS psychiatrist Flavia and hopelessness and suffered from sleep
Robotti, M.D. (“Dr. Robotti”), who disturbances (id. at 444). Dr. Robotti also
performed a Psychiatric Evaluation. (Id. at reported plaintiff’s speech as slow; thought
441-49.) Dr. Robotti reported that plaintiff processes as “poverty of content”; and noted
began feeling depressed at age twelve, when that plaintiff suffered from paranoid thinking
her father left her family; plaintiff was also (specifically with respect to her family
depressed post-partum in 2010; plaintiff’s turning against her). (Id. at 445.) Plaintiff
mother had brought plaintiff to FEGS in 2010 denied suicidal ideations, but Dr. Robotti
for psychotherapy treatment, but would not reported that plaintiff had high financial and
consent to medicating plaintiff; plaintiff social stressors. (Id.)
dropped out of FEGS one month later, after Dr. Robotti reported plaintiff’s cognitive
getting into a fight with her mother and functioning as “good” with respect to
moving out of her mother’s house; and orientation to time, place, and person;
plaintiff “has continued to be depressed, immediate retention and recall; and recent
irritable, with bouts of uncontrollable anger memory (in the past 24 hours). (Id. at 446.)
where she becomes verbally abusive.” (Id. at Dr. Robotti reported plaintiff’s cognitive
441.) functioning as “fair” with respect to remote
With respect to plaintiff’s developmental memory; abstract versus concrete thought;
history, Dr. Robotti reported that plaintiff
was “slow in all developmental milestones”;
and cognitive ability. 1 (Id.) Dr. Robotti reported that plaintiff did not have a
reported plaintiff’s personality characteristics depressed mood, was not manic, had normal
as argumentative and impulsive. (Id. at 447.) thought processes, and had realistic thought
content (i.e., plaintiff had realistic concerns
At the end of the evaluation, Dr. Robotti
about the future and wanted her own
reported that plaintiff “has always suffered
apartment). (Id.) Plaintiff had no psychosis,
from depression”; has a learning disability;
suicidality, or homicidiality, and Dr. Robotti
and suffers from outbursts of anger “where
reported plaintiff’s recent and remote
she verbally abuses others[, but] denies
memory, concentration/attention span, fund
physical violence.” (Id.) Dr. Robotti,
of knowledge, and impulse control as
however, noted that plaintiff does not have
“appropriate.” (Id.) Dr. Robotti reported
aggressive impulses towards her daughter
plaintiff’s insight as fair and her judgment as
and that she has neither been treated with
both appropriate and impaired. (Id.) Dr.
medication nor been hospitalized in the past.
Robotti further reported that plaintiff had no
Dr. Robotti diagnosed plaintiff with signs of issues with her sleep, appetite, or
dysthymic disorder and assessed plaintiff’s energy. (Id.)
global assessment of function (“GAF”) at a
Dr. Robotti diagnosed plaintiff with a
score of 45. (Id. at 448.) Dr. Robotti
mood disorder, and assessed her GAF at 50.
recommended that plaintiff be prescribed
(Id. at 476.) Dr. Robotti recommended that
medication to alleviate depression and
plaintiff continue psychotherapy, stabilize
improve impulse control. (Id. at 449.)
her mood, alleviate depression, and correct
Dr. Robotti evaluated plaintiff again on her “bio signs.” (Id.)
September 26, 2013. Dr. Robotti reported
On June 25, 2014, Dr. Robotti completed
that plaintiff stopped all psychotropic
a Medical Report for Determination of
medications ten months prior because she
Disability/Employability for plaintiff. (Id.
was pregnant, but noted that plaintiff had
506-507.) In the report, Dr. Robotti reported
continued psychotherapy sessions. (Id. at
that plaintiff suffers from a mood disorder
476.) Dr. Robotti further reported that
and that plaintiff’s records indicate a history
plaintiff was suffering from dysthymic
of a learning disability. (Id. at 506.) In
disorder, and that plaintiff’s mood swings
response to a question asking what prevents
had become more prominent since her
the patient from working, Dr. Robotti stated,
pregnancy. (Id.) Dr. Robotti noted that
“pending – learning disability.” (Id.) In
plaintiff experienced decreased sleep;
connection with plaintiff’s history of
increased appetite; low energy; and anxiety,
disability, Dr. Robotti reported that plaintiff
and that plaintiff wanted to resume her
would provide documentation of her
medication. (Id.)
learning disability. (Id. at 507.)
Dr. Robotti conducted a mental status
2. Daniel DeRienzis (LMSW)
examination of plaintiff, reporting plaintiff’s
speech as normal; attitude as cooperative; On February 28, 2012, plaintiff was
behavior as appropriate; psychomotor evaluated by Daniel DeRienzis, LMSW
activity as appropriate; and affect as broad (“Mr. DeRienzis”). (Id. at 428-39.) Mr.
ranged. (Id. 477.) Dr. Robotti further DeRienzis, a FEGS social worker, completed
1 Dr. Robotti identified plaintiff’s fund of knowledge
a n d c o n c e n t r a t i o n / a t t e n t i o n s p a n a s both “good” and
“fair.” (AR 446.)
an initial Adult Assessment and Plaintiff continued to see Mr. DeRienzis
Psychological evaluation of plaintiff. (Id.) approximately every week thereafter.
Plaintiff canceled or did not show up to
Mr. DeRienzis reported the following:
several appointments. (See, e.g., id. at 516.)
plaintiff’s speech was “underproductive”
Plaintiff also requested extra sessions at
with a somewhat “constricted affect” (id. at
times. (Id.)
438); plaintiff’s “body language and tone of
voice suggest[ed] depression” (id. at 428); On November 12, 2012, Mr. DeRienzis
plaintiff had a history of anger problems, and reported that he attempted to provide plaintiff
“is easily provoked and has trouble with “insight-oriented therapy” to improve
controlling herself and deescalating plaintiff’s ability to handle her feelings of
situations” (id. at 431); plaintiff had anger and to respond to such feelings
previously intentionally or accidentally effectively. (Id. at 545.) On April 24, 2013,
damaged property, including punching walls Mr. DeRienzis reported that plaintiff was
and breaking phones in fits of rage (id. at unable to “break the pattern she has of either
432); at age thirteen, plaintiff was forced to isolating or becoming aggressive.” (Id. at
regularly have sexual intercourse with a 561.)
fourteen-year-old classmate for two months
3. Dr. Syedqambar Naqvi
(id.); plaintiff experienced developmental
“problems/delays” during adolescence due to On August 26, 2013, plaintiff was
repeated sexual assaults (id. at 434); and evaluated by Syedqambar Naqvi, M.D. (“Dr.
plaintiff was at high risk for damaging Naqvi”) at FEGS. (Id. at 483-91.) Dr. Naqvi
property, acute psychosocial stressors, and reported that plaintiff had been in therapy
complying with her medication (id. at 437). since she was sixteen years old, but that
plaintiff’s mother would not permit her to be
With respect to plaintiff’s daily and
treated with medications at that time. (Id. at
family life, Mr. DeRienzis reported that,
483.) Dr. Naqvi further reported that plaintiff
during the day, plaintiff watches television
first reported suffering from depression when
and sleeps (id. at 432); plaintiff has limited
she was twelve, and that plaintiff was
hobbies, leisure activities, social
severely depressed after having her first
involvement, and community involvement
child, but that she responded positively to
(id. at 433); and plaintiff has a “fair”
medication. (Id.) Plaintiff’s depression
relationship with her family members, other
worsened when she became pregnant with
than with her father, “who, due to problems
her second child, and plaintiff reported
with drugs, has grown distant from [plaintiff]
suffering from anger issues and relationship
and caused [plaintiff] to lose respect and/or
problems with her mother. (Id.)
compassion for him” (id. at 435).
In connection with the mental status
The “Clinical Formulation” portion of the
examination of plaintiff, Dr. Naqvi reported
evaluation stated that plaintiff presented with
plaintiff’s awareness/attention as lethargic
symptoms of depression and problems with
(id. at 486); behavior as restless, fidgety, and
anger management, and concluded that
clumsy (id.); attitude toward Dr. Naqvi as
plaintiff would benefit from individual
evasive and anxious (id.); speech as slow (id.
counseling, anger management, and
at 487); emotional affect as normal (id. at
psychiatric evaluation for possible
488); mood as depressed and anxious (id.);
medication. (Id. at 438.)
congruence of mood with situation and
content as appropriate (id.); judgment as
appropriate for age (id. at 488); insight into Ms. Knapper conducted Psychiatric
illness as appropriate for age (id.); impulse Assessments of plaintiff, on March 5, 2014
control as appropriate for age (id.); and noted and July 30, 2014, for the Nassau County
that plaintiff suffered from feelings of Department of Social Services. (Id. at 505,
helplessness, hopelessness, and 503.) In the March 5, 2014 assessment, Ms.
worthlessness (id. at 486). Dr. Naqvi further Knapper reported that plaintiff was
reported plaintiff’s thought processes as prescribed Lexapro, Seroquel, Wellbutrin,
appropriate, with no disorders present, and Klonopin, but that plaintiff was not
although Dr. Navi noted that plaintiff “completely compliant” with her
suffered from hallucinations. (Id. at 487.) medications. (Id. at 504.) Ms. Knapper also
reported that, on occasion, plaintiff
Dr. Naqvi reported plaintiff’s cognitive
experienced decompensation and behavioral
functioning as “poor” with respect to
interferences with activities of daily living,
concentration/attention span. (Id. at 488.)
but that plaintiff had never been hospitalized.
Dr. Naqvi otherwise reported plaintiff’s
(Id. at 505.) With respect to plaintiff’s
cognitive functioning as “fair”; Dr. Naqvi did
functional limitations, Ms. Knapper reported
not report plaintiff’s functioning as “good” in
that plaintiff was moderately limited in
any category. (Id.)
maintaining attention and concentration;
Dr. Naqvi diagnosed plaintiff with interacting appropriately with others;
depressive disorder and assessed plaintiff’s maintaining socially appropriate behavior;
current GAF as 45. (Id. at 490.) Dr. Naqvi and performing low stress, simple tasks. (Id.)
recommended that plaintiff should continue Ms. Knapper reported that plaintiff had no
therapy, and noted that plaintiff would return evidence of limitation in understanding and
for medications in two weeks, when she was remembering simple instructions;
done breastfeeding her child. (Id. at 491.) understanding and remembering complex
instructions; maintaining personal hygiene;
4. Dawn Knapper (LMSW) and using public transportation. (Id.) Ms.
On December 11, 2013, Dawn Knapper, Knapper further reported that plaintiff could
LMSW (“Ms. Knapper”), a social worker at participate in an education, training, or a
FEGS, examined plaintiff. (Id. at 478-79.) rehabilitation program for three hours per
Ms. Knapper’s “Psychosocial Update” week. (Id.) Ms. Knapper did not report that
reported that there had been no changes in plaintiff was capable of participating in
plaintiff’s psychiatric condition. (Id. at 478.) employment or work experience activities.
In the “Clinical Formulation” section of the (Id.)
update, Ms. Knapper reported that plaintiff On April 24, 2014, Ms. Knapper
“requires continued 1:1 psychotherapy to completed a Mental Impairment
resolve psychosocial stressor and develop Questionnaire regarding plaintiff. (Id. at
coping skills to manage same effectively. 496-501.) Ms. Knapper reported that
[Plaintiff] continues to require monthly plaintiff suffers from sleep disturbances;
medication management visits with the mood disturbances; social withdrawal or
psychiatrist.” (Id. at 479.) Ms. Knapper isolation; feelings of guilt/worthlessness;
diagnosed plaintiff with mood disorder, and difficulty thinking or concentrating; and
noted that she was currently prescribed hostility and irritability, and that plaintiff
Seroquel, Lexapro, Wellbutrin, and reports feeling very tired from her
Klonopin. (Id.) medications. (Id. at 496-98.) Under the
“Prognosis” portion of the questionnaire, Ms.
Knapper reported that, “with medication concentrating, poor interpersonal skills, and
management & ongoing therapy, [plaintiff] difficulty appropriately managing her anger.
can recover from mental illness.” (Id. at (Id. at 499-500.)
498.)
Ms. Knapper further reported that
In the questionnaire, Ms. Knapper also plaintiff had poor or no mental ability or
reported on plaintiff’s ability and aptitude to aptitude to understand and remember detailed
perform work-related activities in a regular instructions; carry out detailed instructions;
work setting. (Id. at 499.) Ms. Knapper was set realistic goals or make plans
directed to evaluate plaintiff’s ability as independently of others; or deal with stress of
either “unlimited or very good”; “good”; semi-skilled and skilled work, explaining that
“fair”; or “poor or none.” (Id.) Ms. Knapper plaintiff “has marked difficulty
reported plaintiff’s ability to carry out very concentrating” and “stay[ing] on task.” (Id.
short and simple instructions; maintain at 500.)
regular attendance and be punctual; make
In connection with plaintiff’s mental
simple work-related decisions; ask simple
ability and aptitude to perform particular
questions or request assistance; and be aware
types of jobs, Ms. Knapper reported that
of normal hazards and take appropriate
plaintiff had poor or no ability and aptitude to
precautions as “fair.” (Id.) The questionnaire
interact appropriately with the general public;
defined fair as the “[a]bility to function in this
and fair ability and aptitude to maintain
area is seriously limited, but not precluded.”
socially appropriate behavior and use public
(Id.) Ms. Knapper reported that plaintiff had
transportation, explaining that plaintiff “has
poor or no ability to do the following:
poor coping skill[s] regarding anger
remember work-like procedures; understand
management” and “is easily agitated.” (Id.)
and remember short and simple instructions;
maintain attention for two-hour segment; Finally, in connection with plaintiff’s
sustain an ordinary routine without special functional limitations, Ms. Knapper reported
supervision; work in coordination with or that plaintiff had “marked” difficulties
proximity to others without being unduly maintaining social functioning and
distracted; complete a normal workday and “frequent” deficiencies in concentration,
workweek without interruptions from persistence, or pace, limiting her ability to
psychologically-based symptoms; perform at timely complete tasks. (Id.) Ms. Knapper
a constant pace without an unreasonable explained that plaintiff reported being unable
number and length of rest periods; accept to sit for an extended period of time. (Id. at
instructions and respond appropriately to 501.)
criticism from supervisors; get along with co-
workers or peers without unduly distracting In connection with plaintiff’s July 30,
them or exhibiting behavioral extremes; 2014 visit, Ms. Knapper reported that
respond appropriately to changes in routine plaintiff had “moderately limited” abilities to
work setting; and deal with normal work maintain attention and concentration; interact
stress. (Id.) The questionnaire defined “poor appropriately with others; maintain socially
or none” as “[n]o useful ability to function in appropriate behavior; and perform low stress,
this area.” (Id.) Ms. Knapper did not report simple tasks. (Id. at 503.) The assessment
plaintiff having “unlimited or very good” or defined “moderately limited” as “unable to
“good” abilities to do any work-related tasks. function 50% of the time.” (Id.) Ms.
(See id.) To support her findings, Ms. Knapper further reported that plaintiff’s
Knapper reported that plaintiff had difficulty “current level of depression will impair her
ability to participate in [education and learning new tasks; making simple work-
training] activities.” (Id.) related decisions; adequately relating to
others; and appropriately handling stress.
5. Dr. Paul Herman
(Id. at 390-91.) Although Dr. Herman
On August 22, 2011, plaintiff was reported that plaintiff might have difficulty
examined by psychologist Paul Herman, performing complex tasks and that the results
Ph.D. (“Dr. Herman”). (Id. at 389-92.) Dr. of his examination were consistent with
Herman conducted a one-time consultative “borderline intellectual functioning,” he
examination of plaintiff for the SSA. (See concluded that it did not appear “significant
id.) Dr. Herman reported that plaintiff had enough to interfere with [plaintiff’s] ability to
adequate speech and language skills (id. function on a daily basis to the extent that
389); recalled and understood instructions vocational functioning would be precluded.”
(id.); and had good attention and (Id. at 391.)
concentration (id. at 390).
Dr. Herman diagnosed plaintiff with
As part of the examination, Dr. Herman “[b]orderline intellectual functioning” and
administered the Wide Range Achievement recommended vocational training. (Id.) Dr.
Test, Fourth Addition (“WRAT-IV”). (Id.) Herman reported plaintiff’s prognosis as
In the area of “Reading/Decoding,” plaintiff “[f]air to good given the absence of more
scored a 66, which was a grade equivalent of prominent symptomatology, but some
3.2. (Id.) Dr. Herman concluded that this difficulty in her circumstances.” (Id.) Dr.
was “consistent, or somewhat above that Herman, however, also reported that plaintiff
which would be expected given [plaintiff’s] would need assistance managing funds given
overall level of cognition,” and that it did not her lack of experience in this area. (Id.)
“indicate the presence of a reading disorder.”
6. G. Wing
(Id.) In light of the fact that plaintiff had
recently undergone a comprehensive On August 30, 2011, G. Wing (“Ms.
cognitive evaluation in connection with her Wing”), a state agency psychiatric
special education classes, Dr. Herman consultant, submitted a “Psychiatric Review
reported that he used an alternate Technique” (id. at 393-406) and “Mental
standardized measure of cognitive ability to Residual Functioning Capacity Assessment”
avoid artificially inflated scores. (Id.) (id. at 407-10) regarding plaintiff. Ms. Wing
Plaintiff scored 75 on the Nonverbal did not examine plaintiff prior to submitting
Intelligence-3 (TONI-3) test, which placed these reports.
her in the borderline range of cognitive
In the Psychiatric Review Technique, Ms.
ability. (Id.) Dr. Herman concluded that,
Wing reviewed plaintiff under listing Section
overall, plaintiff’s “level of cognition is
12.05 (intellectual disability). (Id. at 393,
adequate for many vocational endeavors and
397.) Ms. Wing concluded that plaintiff had
does not preclude vocational functioning.”
a learning disability, but that it did not satisfy
(Id.)
the criteria for listing Section 12.05. (Id. at
Dr. Herman further reported that plaintiff 397.) When evaluating plaintiff’s functional
appeared capable of the following: limitations—the “B” criteria of the listings—
understanding simple directions; performing Ms. Wing concluded that plaintiff had
simple tasks; maintaining attention and “moderate” restrictions with respect to daily
concentration sufficient for low-level living activities; difficulties in maintaining
employment; maintaining a regular schedule; social functioning; and difficulties in
maintaining concentration, persistence, or evidence presented was “partially consistent
pace. (Id. at 403.) Ms. Wing reported that with [plaintiff’s] allegation of psychological
plaintiff had never experienced repeated symptoms.” (Id.) Mr. Burstein found that,
episodes of deterioration with extended “[a]lthough [plaintiff] does show evidence of
duration. (Id.) symptoms, these complaints are not
considered to be significantly limiting,” and
In the Mental Residual Functional
that plaintiff was able to follow simple
Capacity Assessment, Ms. Wing found that
directions; sustain concentration for simple
plaintiff was moderately limited in her ability
tasks; and adapt to simple changes and relate
to understand and carry out simple
adequately to others. (Id.) Mr. Burstein
instructions; concentrate for up to two hours
concluded that there were “no listing met or
at a time; relate to supervisors and co-
equaled on [plaintiff].” (Id.)
workers; and adapt to changes in the work
environment. (Id. at 409.) Ms. Wing then C. Relevant Testimonial Evidence
concluded that plaintiff could perform simple
Plaintiff had an administrative hearing on
tasks. (Id.)
April 25, 2014 in Jericho, New York, before
7. Y. Burstein ALJ April Wexler. (Id. at 52-66.) Plaintiff
appeared with her then-counsel, Milton
On July 16, 2012, medical consultant Mr.
Braxter. Plaintiff had a supplemental
Burstein submitted a “Psychiatric Review
administrative hearing on August 8, 2014,
Technique” (id. at 450-63) and “Mental
where she also appeared before ALJ Wexler
Residual Functional Capacity Assessment”
with Mr. Braxter as counsel. (Id. at 69-82.)
(id. at 385-88) regarding plaintiff. In the
Psychiatric Review Technique, Mr. Burstein 1. Plaintiff’s Testimony at the Hearing
reviewed plaintiff under listing Section 12.02 and Supplemental Hearing
(organic mental disorders) and concluded
The following is a summary of plaintiff’s
that plaintiff had a learning disability that did
testimony at the hearings.
not satisfy the criteria for that listing. (Id. at
450-51.) When evaluating plaintiff’s Plaintiff lives in Elmont, New York with
functional limitations—the “B” criteria of the her mother, sister, and her two children (eight
listings—Mr. Burstein concluded that months and four years old at the time of the
plaintiff had moderate difficulties in hearing), and her sister’s two children. (Id. at
maintaining concentration, persistence, or 54.) She has a driver’s license and drives.
pace; mild restrictions of activities of daily (Id.) Plaintiff attended special education
living; mild difficulties in maintaining social classes until tenth or eleventh grade. (Id.)
functioning; and no repeated episodes of
deterioration with extended duration. (Id. at Plaintiff suffers from a mood disorder
460.) and a learning disability. (Id. at 55.) She
attends therapy with Dr. Knapper once a
In the Mental Residual Functional week, and takes the following medications
Capacity Assessment, Mr. Burstein reported prescribed by Dr. Robotti: Seroquel,
that plaintiff showed no evidence of a thought Lexapro, Klonopin, and Wellbutrin. (Id. at
disorder and had adequate judgment and 55-56.) Seroquel treats bipolar disorder and
insight; attention, concentration, and memory depression; Lexapro treats depression;
for simple tasks; and interpersonal skills. (Id. Klonopin treats panic attacks; and Wellbutrin
at 387.) Mr. Burstein, however, also reported treats depression. (Pl. Mem., 19-20, nn. 7-10,
plaintiff’s IQ as “borderline,” and that the ECF No. 10.) Plaintiff takes her medication
daily, which helps her. (AR 63.) When asked At the supplemental hearing, plaintiff
by the ALJ whether plaintiff received any testified that her depression and learning
other treatment for her learning disability, disability affect her ability to function in the
plaintiff responded, “No.” (Id. at 56.) workplace because she is unable to perform
simple tasks and she gets frustrated easily.
Plaintiff is able to bathe, dress, feed
(Id. at 81-82.)
herself and her children, and do laundry and
other chores, including the dishes. (Id. at 56- 3. Plaintiff’s Mother
57, 61.) Plaintiff is the primary caregiver for
Plaintiff’s mother, Amy Gardner,
her children, but their father takes them for
submitted a “Function Report” (id. at 299-
eight hours, two to three days per week. (Id.
307), as well as a letter to ALJ Wexler on
at 58-59, 61.) She is able to drive and run
August 8, 2014 (id. at 354-55). Plaintiff’s
errands, such as going to Office Max and
mother reported that plaintiff is sometimes up
shopping for clothes, but she does not go to
all night, and other times sleeps all day. (Id.
the grocery store by herself. (Id. at 60-61.)
300.) In addition, plaintiff’s mother reported
Plaintiff applied for jobs, but she did not that plaintiff rarely prepares meals because
hear back from the employers. (Id. at 62.) she has no patience. (Id. at 301.) Instead,
When asked by the ALJ what would prevent plaintiff’s mother prepares plaintiff’s meals
her from working as a cashier, plaintiff (id. at 302); plaintiff’s mother also assists
responded that she has a mood disorder, and plaintiff with childcare (id. at 300).
that she cannot be around people for too long.
4. Preventative Worker
(Id.) Plaintiff sometimes socializes with her
sister, but she does not have any friends. (Id. On July 10, 2012, a preventive worker
at 61.) from Mercy First submitted a “Report of
Contact” with plaintiff. (Id. at 312-313.) The
Plaintiff sometimes yells at her children,
report noted that plaintiff “frequently leaves
and approximately once a week, her mother
her daughter with [her mother] and goes out
has to intervene because plaintiff cannot
a lot,” and that plaintiff “seems to leave a lot
control her mood. (Id. at 62-63.) Plaintiff,
of her daughter’s care to [her mother].” (Id.
however, is not concerned about being alone
at 312.) The report also states that plaintiff
with her children, testifying that she would
“tends to be argumentative.” (Id.)
never hurt them. (Id. at 63.) When asked by
the ALJ why plaintiff could not control her 5. Housing Worker
behavior in a work setting, plaintiff
responded, “[b]ecause it’s a different story Janis Davison, a housing worker, also
with other people.” (Id. at 64.) submitted a “Report of Contact” with
plaintiff dated July 9, 2012. (Id. at 310-11.)
Plaintiff spends her time at home The housing worker reported that plaintiff
watching her kids and sitting outside. (Id.) was “not your average adult 18 year old. She
Plaintiff does not have hobbies, but she definitely has limitations.” (Id. at 310.) The
sometimes watches television and goes on housing worker also reported that plaintiff
Facebook to talk to her sisters and cousins. was unable to care for her daughter without
(Id.) Approximately three days a week, the help of her mother, and that she “doesn’t
plaintiff stays in her bedroom to avoid always know right from wrong.” (Id.)
altercations. (Id. at 65.) Plaintiff’s mother or
grandmother watch her children on these
days. (Id.)
On August 8, 2014, Dr. Vandergoot
testified at the supplemental hearing. At the
6. Vocational Evidence
hearing, counsel for plaintiff asked Dr.
The ALJ asked David Vandergoot, Ph. D. Vandergoot to define “low stress jobs” as it
(“Dr. Vandergoot”) to respond to written was used in the hypotheticals posed by the
interrogatories as an impartial vocational ALJ. (Id. at 72.) Dr. Vandergoot responded
expert (“VE”). (Id. at 344-347.) In the that a low stress job “is typically one that is
interrogatories, Dr. Vandergoot was described as unskilled in the DOT, and that
presented with two hypothetical situations. does not have set production quotas over a set
(Id. at 345.) In both hypothetical situations, period of time, typically is maybe one, [two,]
Dr. Vandergoot was asked to assume that the three or four-step tasks, in terms of
individual was born on May 24, 1993; had completing the job.” (Id.) When asked who
limited education; was able to communicate decides whether a job is “low stress,” Dr.
in English; and had no work experience. (Id. Vandergoot responded: “No one decides it.
at 344-45.) In the first hypothetical, Dr. It’s just my understanding of the factors that
Vandergoot was asked to assume that the are involved in completing the job that I feel
individual was: makes the job low stress. There is no rule or
specific definition of low stress.” (Id. at 72-
Limited to simple routine repetitive 73.)
tasks, low stress jobs which means no
work at fixed production rate pace, Dr. Vandergoot further testified that an
with work that is checked at the end individual that suffers from mood swings and
of the workday or workweek rather is unable to handle low stress could not
than hourly or throughout the day. perform the jobs listed in response to the first
Limited to occasional contact with hypothetical. (Id. at 73.) In addition, Dr.
supervisors and co-workers and no Vandergoot testified that “[t]here are no
contact with members of the general employers who would have no production
public. expectations.” (Id. at 74.) In response to
questions from plaintiff’s counsel, Dr.
(Id. at 345.) Dr. Vandergoot reported that the Vandergoot further acknowledged issues that
individual in the first hypothetical could might come up in employment as a
perform the following unskilled jobs in the photocopy machine operator, garment sorter,
national economy: photocopy machine or routing clerk. (Id. at 74-77.) Finally, Dr.
operator (60,000 jobs in the national Vandergoot testified that he used the DOT
economy); garment sorter (40,000 jobs in the definitions to define the three jobs listed in
national economy), and routing clerk response to the first hypothetical, and that
(100,000 jobs in the national economy). (Id. those definitions were last updated in 1991.
at 346.) (Id. at 80.)
In the second hypothetical, Dr. II. PROCEDURAL BACKGROUND
Vandergoot was asked to consider the same
facts as in the first hypothetical, with the A. Administrative History
additional fact that the individual “[h]as the
Following plaintiff’s eighteenth birthday,
need to be off task 20% of the workday.” (Id.
plaintiff received an “Age 18
at 345.) Dr. Vandergoot reported that there
Redetermination Notice” dated September 2,
were no unskilled jobs in the national
2011 (“the Redetermination Notice”). (Id. at
economy that the individual in the second
90-93.) The Redetermination Notice stated
hypothetical could perform. (Id. at 346.)
that plaintiff no longer qualified for On September 2, 2014, ALJ Wexler
Supplemental Security Income (“SSI”) issued an opinion concluding that plaintiff’s
because she was not found to be disabled disability ended on September 2, 2011, and
under the definition of disability for adults. that plaintiff had not thereafter become
(Id. at 90.) More specifically, the disabled. (Id. at 24-43.) On November 6,
Redetermination Notice provided that the 2014, plaintiff submitted a request for review
SSA had determined that plaintiff’s condition of the ALJ’s September 2, 2014 decision to
was “not severe enough” to keep plaintiff the Appeals Council. (Id. at 18.) The
from working. (Id. at 93.) The Appeals Council denied plaintiff’s request on
Redetermination Notice further provided March 22, 2016, making the ALJ’s decision
that, despite plaintiff’s reported mental the final decision of the Commissioner. (Id.
problems, the reports “did not show any at 1-6.)
conditions of a nature that would prevent
B. The Instant Case
[plaintiff] from working,” and that based on
plaintiff’s age, education, and experience, Plaintiff commenced the instant action on
plaintiff could perform a job with simple May 19, 2016. (ECF No. 1.) On April 26,
tasks. (Id.) 2017, plaintiff moved for judgment on the
pleadings. (ECF No. 9.) The Commissioner
On December 19, 2012, plaintiff
submitted a cross-motion for judgment on the
submitted a request for reconsideration with
pleadings on September 14, 2017. (Def.
the SSA. (Id. at 98-99.) Plaintiff had a
Mem., ECF No. 13-1.) On October 26, 2017,
hearing with a Disability Hearing Officer
plaintiff responded to the Commissioner’s
(“DHO”) on February 22, 2013, where
cross-motion for judgment on the pleadings
plaintiff appeared without counsel. (Id. at
(ECF No. 15), and, on December 14, 2017,
102-15.) The DHO concluded that plaintiff
the Commissioner filed a reply in further
was not disabled on December 22, 2013. (Id.
support of her cross-motion for judgment on
at 108.)
the pleadings. (ECF No. 17.) The Court has
On March 18, 2013, plaintiff submitted a fully considered the parties’ submissions.
request for a hearing before an ALJ. (Id. at
119.) Plaintiff appeared pro se at a hearing
III. STANDARD OF REVIEW
with an ALJ on December 12, 2013, but the A district court may set aside a
hearing was continued so that plaintiff could determination by the Commissioner “only if
retain counsel. (Id. at 44-49.) it is based upon legal error or if the factual
findings are not supported by substantial
On April 25, 2014, plaintiff appeared
evidence in the record as a whole.” Greek v.
with counsel and testified at a hearing before
Colvin, 802 F.3d 370, 374-75 (2d Cir. 2015)
ALJ Wexler. (Id. at 50-66.) On May 20,
(citing Burgess v. Astrue, 537 F.3d 117, 127
2014, counsel for plaintiff requested a
(2d Cir. 2008); 42 U.S.C. § 405(g)). The
supplemental hearing in order to cross-
Supreme Court has defined “substantial
examine Dr. Vandergoot, who had submitted
evidence” in Social Security cases to mean
written interrogatories. (Id. at 352-53.) On
“more than a mere scintilla” and that which
August 8, 2014, ALJ Wexler held a
“a reasonable mind might accept as adequate
supplemental hearing. Plaintiff appeared at
to support a conclusion.” Richardson v.
the hearing with her counsel, and Dr.
Perales, 402 U.S. 389, 401 (1971) (citation
Vandergoot testified. (Id. at 67-82.)
omitted); Selian v. Astrue, 708 F.3d 409, 417
(2d Cir. 2013). Furthermore, “it is up to the
agency, and not [the] court, to weigh the Circuit has summarized this procedure as
conflicting evidence in the record.” Clark v. follows:
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
The first step of this process requires
Cir. 1998). If the court finds that there is
the [Commissioner] to determine
substantial evidence to support the
whether the claimant is presently
Commissioner’s determination, the decision
employed. If the claimant is not
must be upheld, “even if [the court] might
employed, the [Commissioner] then
justifiably have reached a different result
determines whether the claimant has
upon a de novo review.” Jones v. Sullivan,
a “severe impairment” that limits her
949 F.2d 57, 59 (2d Cir. 1991) (citation
capacity to work. If the claimant has
omitted); see also Yancey v. Apfel, 145 F.3d
such an impairment, the
106, 111 (2d Cir. 1998) (“Where an
[Commissioner] next considers
administrative decision rests on adequate
whether the claimant has an
findings sustained by evidence having
impairment listed in Appendix 1 of
rational probative force, the court should not
the regulations. When the claimant
substitute its judgment for that of the
has such an impairment, the
Commissioner.”).
[Commissioner] will find the
IV. DISCUSSION claimant disabled. However, if the
claimant does not have a listed
A. The Disability Determination
impairment, the [Commissioner]
A claimant is entitled to disability must determine, under the fourth step,
benefits if the claimant is unable “to engage whether the claimant possesses the
in any substantial gainful activity by reason residual function capacity to perform
of any medically determinable physical or her past relevant work. Finally, if the
mental impairment which can be expected to claimant is unable to perform her past
result in death or which has lasted or can be relevant work, the [Commissioner]
expected to last for a continuous period not determines whether the claimant is
less than twelve months.” 42 U.S.C. capable of performing any other
§ 1382c(a)(3)(A). An individual’s physical work.
or mental impairment is not disabling under
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
the Social Security Act unless it is “of such
1999) (quoting Perez, 77 F.3d at 46). The
severity that he is not only unable to do his
claimant bears the burden of proof with
previous work but cannot, considering his
respect to the first four steps; the
age, education, and work experience, engage
Commissioner bears the burden of proving
in any other kind of substantial gainful work
the last step. Id.
which exists in the national economy.” Id.
§ 1382c(a)(3)(B). The Commissioner must consider the
following in determining a claimant’s
The Commissioner has promulgated
entitlement to benefits: “(1) the objective
regulations establishing a five-step procedure
medical facts; (2) diagnosis or medical
for evaluating disability claims.2 See 20
opinions based on such facts; (3) subjective
C.F.R. §§ 404.1520, 416.920. The Second
evidence of pain or disability testified to by
2 The ALJ performs this five-step procedure in the first Commissioner’s final decision. See, e.g., Greek, 802
i n s t a n c e ; t h e A p p e a l s C o u n c i l t h e n r eviews the ALJ’s F.3d at 374.
decision and determines if it stands as the
the claimant or others; (4) the claimant’s evidence demonstrates or supports onset of
educational background, age, and work the impairment before age 22.” (Id. at 27.)
experience.” Id. (quoting Mongeur v. The ALJ noted that adaptive functioning is
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) defined as “the individual’s progress in
(per curiam)). acquiring mental, academic, social and
personal skills as compared with other
B. The ALJ’s Ruling
unimpaired individuals of his/her same age.”
The ALJ concluded that plaintiff’s (Id. (citing POMS DI 24515.056d.2).)
disability ended on September 2, 2011, and
Specifically, the ALJ found that, despite
that plaintiff had not become disabled again
plaintiff’s low IQ scores, plaintiff’s school
following that date. (AR 24-37.)
records reflected that she had “made good
The ALJ did not conduct the first step of progress in acquiring academic and social
the five-step procedure described above, skills.” (Id. at 27.) The ALJ found that
because the plaintiff’s current employment is plaintiff was on track to graduate with an IEP
not considered when redetermining disability diploma and pursue competitive work, but
at the age of eighteen. (Id. at 25 (citing 20 she was dismissed from school due to
C.F.R. § 416.987(b)).) nonattendance. (Id.) The IEP indicated that
plaintiff showed a “basic understanding” of
At step two, the ALJ determined that addition and subtraction and could identify
plaintiff had the following severe bills and coins. (Id.) The ALJ also found that
impairments: borderline intellectual plaintiff’s daily activities demonstrated
functioning and mood disorder. (Id. at 26.) “strong mental, social, and personal skills.”
The ALJ noted that these impairments (Id.)
“impose more than minimal functional
limitations.” (Id.) The ALJ concluded that plaintiff had “not
shown that she has the deficits in adaptive
At step three, the ALJ concluded that functioning required to satisfy the diagnostic
plaintiff did not have an impairment or description of listing 12.05,” and, therefore,
combination of impairments that met or that the “severity of her borderline
medically equaled the severity of one of the intellectual functioning [did] not meet the
listed impairments in 20 C.F.R. criteria of listing 12.05.” (Id. at 28.)3
§§ 416.920(d), 416.925, or 416.926. (Id.)
The ALJ specifically considered listings Moving on to step four, the ALJ
12.04 (depressive, bipolar and related determined that plaintiff had the residual
disorders) and 12.05 (intellectual disorder). functional capacity to perform work at all
exertional levels with non-exertional
As to listing 12.05, the ALJ determined limitations, including: simple routine
that plaintiff failed to meet the “diagnostic repetitive tasks, low stress jobs, occasional
description in the introductory paragraph,” contact with co-workers and supervisors and
which required “significantly subaverage no contact with members of the general
general intellectual functioning with deficits public. (Id. at 29.)
in adaptive functioning initially manifested
during the developmental period; i.e., the
3 The ALJ also found that plaintiff did not meet the 12.04. Accordingly, the Court need not, and does not,
c r i t e r i a f o r l i s t i n g 1 2 . 0 4 . P l a i n t i f f , h owever, does not discuss listing 12.04.
challenge the ALJ’s findings with respect to listing
Based on the testimony of the vocational known, “mandates that the medical opinion
expert, and considering plaintiff’s age, of a claimant’s treating physician [be] given
education, work experience, and residual controlling weight if it is well supported by
functional capacity, the ALJ concluded that medical findings and not inconsistent with
plaintiff was capable of making a successful other substantial record evidence.” Shaw v.
adjustment to other work that existed in Chater, 221 F.3d 126, 134 (2d Cir. 2000); see
significant numbers in the national economy also, e.g., Rosa v. Callahan, 168 F.3d 72, 79
(Id. at 35-36.) The ALJ found that plaintiff (2d Cir. 1999); Clark, 143 F.3d at 118. The
was, therefore, not disabled from the onset of rule, as set forth in the regulations, provides:
her disability on July 4, 2012, through the
Generally, we give more weight to
date of the ALJ’s decision. (Id. at 36.)
medical opinions from your treating
C. Application sources, since these sources are likely
to be the medical professionals most
Plaintiff challenges the ALJ’s decision,
able to provide a detailed, longitudinal
finding that plaintiff has not been disabled
picture of your medical impairment(s)
since September 2, 2011. Specifically,
and may bring a unique perspective to
plaintiff asserts that the ALJ: (1) failed to
the medical evidence that cannot be
apply the correct legal standard; 4 and
obtained from the objective medical
(2) failed to develop the record.5
findings alone or from reports of
As set forth below, the Court finds that individual examinations, such as
remand is required for two reasons. First, the consultative examinations or brief
ALJ failed to properly evaluate the medical hospitalizations. If we find that a
evidence. In particular, the ALJ failed to treating source’s opinion on the
provide good reasons for not crediting issue(s) of the nature and severity of
plaintiff’s treating physicians’ opinions and your impairments(s) is well-supported
for assigning the weight she did to a single by medically acceptable clinical and
consultative examiner opinion. Second, the laboratory diagnostic techniques and is
ALJ failed to adequately develop the record.6 not inconsistent with the other
substantial evidence in your case
1. Failure to Properly Evaluate the record, we will give it controlling
Medical Evidence weight.
The Commissioner must give special 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
evidentiary weight to the opinion of the Although treating physicians may share their
treating physician. See Clark, 143 F.3d at opinions concerning a patient’s inability to
118. The “treating physician rule,” as it is
4 Plaintiff alleges that the ALJ: (1) failed to adhere to 6 As it is remanding on other grounds, the Court does
t h e t r e a t i n g p h y s i c i a n ’ s r u l e ; ( 2 ) e r red by relying on not rule on plaintiff’s argument regarding the deficient
vocational testimony resulting from a deficient hypothetical question. (Pl. Mem. at 5.) However, on
hypothetical question; and (3) improperly evaluated remand (if the ALJ continues to rely upon the VE’s
plaintiff’s learning disability under Listing 12.05 at response after conducting further proceedings
step three of the sequential evaluation. consistent with this Memorandum and Order), the ALJ
should explain whether she considered the VE’s
5 Plaintiff alleges that the ALJ: (1) failed to obtain written response to the second hypothetical and the
necessary evidence; and (2) failed to elicit testimony VE’s verbal response to the representative’s
from plaintiff regarding her learning disability. hypothetical, which included plaintiff’s mental health
limitations, wherein VE stated plaintiff would not be
able to do such jobs. (Id. at 27.)
work and the severity of the disability, the v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004)
ultimate decision of whether an individual is (“We do not hesitate to remand when the
disabled is “reserved to the Commissioner.” Commissioner has not provided ‘good
Id. § 404.1527(d)(1); see also Snell v. Apfel, reasons’ for the weight given to a treating
177 F.3d 128, 133 (2d Cir. 1999) (“[T]he physicians opinion and we will continue
Social Security Administration considers the remanding when we encounter opinions from
data that physicians provide but draws its ALJ’s that do not comprehensively set forth
own conclusions as to whether those data reasons for the weight assigned to a treating
indicate disability.”). physician’s opinion.”).
If the opinion of the treating physician as As an initial matter, it is undisputed that
to the nature and severity of the impairment Ms. Knapper and Dr. Robotti were plaintiff’s
is not given controlling weight, the ALJ must treating physicians. (See AR 27 (referring to
apply various factors to decide how much Dr. Robotti as the “[t]reating psychiatrist”
weight to give the opinion. See Shaw, 221 and Ms. Knapper as plaintiff’s “therapist”)).
F.3d at 134; Clark, 143 F.3d at 118. These Plaintiff argues that the ALJ “committed
factors include: (i) the frequency of legal error” by failing to accord “controlling
examination and the length, nature, and weight” to these two opinions. (Pl. Mem. at
extent of the treatment relationship, (ii) the 23.) The Commissioner argues that the ALJ
evidence in support of the opinion, (iii) the gave the opinions “appropriate weight.” (Def.
opinion’s consistency with the record as a Mem. at 24.) The Court finds that remand is
whole, (iv) whether the opinion is from a required because the ALJ failed to give “good
specialist, and (v) other relevant factors. 20 reasons” for according less than controlling
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see weight to the opinions of plaintiff’s treating
Clark, 143 F.3d at 118. When the ALJ physicians, while giving “great weight” to a
chooses not to give the treating physician’s consultative examiner’s opinion.
opinion controlling weight, he must “give
First, the Court finds that the ALJ failed
good reasons in his notice of determination or
to provide sufficient reasons for giving “no
decision for the weight [he] gives [the
weight” to Dr. Robotti’s opinion. Dr. Robotti
claimant’s] treating source’s opinion.”
was plaintiff’s treating psychiatrist
Clark, 143 F.3d at 118 (quoting C.F.R.
throughout the relevant period, seeing
§§ 404.1527(d)(2), 416.927(d)(2)); see also
plaintiff monthly. Although Dr. Robotti’s
Perez v. Astrue, No. 07-cv-958 (DLI), 2009
report indicated that plaintiff had a learning
WL 2496585, at *8 (E.D.N.Y. Aug. 14,
disability that prevents her from working, the
2009) (“Even if [the treating physician’s]
ALJ gave the report no weight because it is
opinions do not merit controlling weight, the
“phrased as the claimant’s report” and
ALJ must explain what weight she gave those
because Dr. Robotti was awaiting reports to
opinions and must articulate good reasons for
confirm the existence of an impairment.7
not crediting the opinions of a claimant’s
(AR 34-35.) The ALJ gave no additional
treating physician.”). A failure by the ALJ to
explanation for deviation from the treating
provide “good reasons” for not crediting the
physician rule. The Commissioner
opinion of a treating physician is a ground for
acknowledges that the ALJ rejected the
remand. See Snell, 177 F.3d at 133; Halloran
treating physician opinions to the degree
7 The Court notes that Dr. Robotti’s March 26, 2012 disturbed since childhood.” (AR 443.) The
e v a l u a t i o n s t a t e d t h a t p l a i n t i f f had been “dxed Commissioner’s papers do not appear to address this
[diagnosed] as learning disabled and emotionally language.
“that it was based upon disability due to a conclusion.”). Under the circumstances in
learning disorder” because the medical this case, the ALJ did not provide a sufficient
source opinions were “predominately based basis for carving out certain findings of
on the claimant’s subjective reporting.” (Def. plaintiff’s treating physician that support the
Mem. at 24.) However, it is inappropriate for conclusion of the consultative examiner,
the ALJ to “substitute his own expertise or while summarily discarding all other findings
view of the medical proof for the treating as “uncorroborated.” 8 (AR 34.)
physician’s opinion.” Shaw, 221 F.3d at 134
Although the Commissioner argues that it
(citing Balsamo v. Chater, 142 F.3d 75, 81
discounted Ms. Knapper’s findings due to her
(2d Cir. 1998)). In short, the ALJ’s purported
other reports indicating a lesser level of
justifications for giving “no weight” to Dr.
limitation (Def. Mem. at 25), those same
Robotti’s opinions were not sufficiently
reports also show Ms. Knapper indicating
substantive. See Perez, 2009 WL 2496585,
that plaintiff’s “current level of depression
at *8 (“Even if [the treating physician’s]
may impair her ability to participate in
opinions do not merit controlling weight, the
activities indicated” (AR 503, 505). Ms.
ALJ must explain what weight she gave those
Knapper opined that the plaintiff has “poor to
opinions and must articulate good reasons for
no ability to perform most of the basic mental
not crediting the opinions of a claimant’s
tasks of work.” (Id. at 496-503.) The Court
treating physician.”).
finds it notable that Ms. Knapper found that
Second, the ALJ failed to provide plaintiff had poor or no ability to remember
sufficient reasons for giving “some” weight work-like procedures or understand and
to a particular portion of Ms. Knapper’s remember short and simple instructions (id.
report that was “consistent with Dr. at 499), fundamental skills necessary for
Herman’s report and findings,” but no weight almost any area of employment. 9
to the rest of the report. (AR at 34.) Ms. Accordingly, the Court finds that the ALJ did
Knapper, as plaintiff’s therapist, treated not give sufficient reasons for completely
plaintiff weekly during the relevant time discounting much of Ms. Knapper’s opinion.
period. The ALJ cannot select evidence that
Finally, the Court finds that the ALJ
supports a particular conclusion without
improperly afforded “great weight” to Dr.
providing adequate explanation for each
Herman’s opinion as consultative examiner.
decision. See Pogozelski v. Barnhart, No. 03
The Second Circuit has indicated that, by
CV 2914 (JG), 2004 WL 1146059, at *17
extension of the treating physician rule, ALJs
(E.D.N.Y. May 19, 2004); see also Rivera v.
should not rely heavily on findings by
Bowen, 665 F. Supp. 201, 205 (S.D.N.Y.
consultative examiners or non-examining
1987) (“[A]lthough the ALJ is not required
doctors. Selian, 708 F.3d at 419 (“ALJs
explicitly to reconcile every conflicting shred
should not rely heavily on the findings of
of medical testimony, he cannot pick and
consultative physicians after a single
choose evidence that supports a particular
8 The Court notes that the ALJ found that the lack of remember detailed instructions; carry out detailed
M s . K n a p p e r ’ s o f f i c e v i s i t n o t e s p r evented her from instructions; set realistic goals or make plans
finding corroboration by objective evidence. independently of others; or deal with stress of semi-
However, as discussed infra, the ALJ should have skilled and skilled work, explaining that plaintiff “has
further developed the record by obtaining and marked difficulty concentrating” and “stay[ing] on
reviewing such notes. task.” (AR 500.)
9 Ms. Knapper further reported that plaintiff had poor
or no mental ability or aptitude to understand and
examination.”). In Selian, the ALJ rejected examination.); see also Gonzalez, 113 F.
the treating physician’s diagnosis based in Supp. 2d at 589 (consulting doctor's single
part on the opinion of another physician who examination of claimant only deserved
“performed only one consultative limited weight).10
examination.” 708 F.3d at 419. The Second
In sum, the ALJ committed legal error by
Circuit held that, in doing so, the ALJ
failing to provide “good reasons” for
“fail[ed] to provide ‘good reasons’ for not
declining to afford controlling weight to the
crediting [the treating physician’s]
treating physicians’ opinions. Snell, 177 F.3d
diagnosis,” and that failure “by itself
at 133. That failure “by itself warrants
warrant[ed] remand.” Id. In Cruz v. Sullivan,
remand.” Selian, 708 F.3d at 419; see also
the Second Circuit explained that “a
McAllister v. Colvin, 205 F. Supp. 3d 314,
consulting physician’s opinions or report
332-33 (E.D.N.Y. 2016) (citing Balodis v.
should be given limited weight . . . because
Leavitt, 704 F. Supp. 2d 255, 265–68
‘consultative exams are often brief, are
(E.D.N.Y. 2010) (finding remand was
generally performed without benefit or
warranted when the ALJ did not “explicitly”
review of claimant’s medical history and, at
apply and weigh the various factors that must
best, only give a glimpse of the claimant on a
be considered in determining how much
single day.’” 912 F.2d 8, 13 (2d Cir. 1990)
weight to give an opinion of a treating
(quoting Torres v. Bowen, 700 F. Supp. 1306,
physician). Accordingly, the Court
1312 (S.D.N.Y. 1988).
concludes that remand is necessary so that the
Here, Dr. Herman based his opinion on a ALJ can properly consider such opinions or
single examination of plaintiff. (AR 389-92.) provide sufficient reasons for declining to
After diagnosing plaintiff with “borderline apply controlling weight.
intellectual functioning,” he concluded that it
2. Failure to Develop the Record
did not appear “significant enough to
interfere with [plaintiff’s] ability to function Plaintiff also asserts that her record was
on a daily basis to the extent that vocational incomplete for two reasons: (1) her
functioning would be precluded.” (Id. 391.) psychotherapy notes and IEP were missing
This opinion is at odds with those of the from the administrative record (Pl. Mem. at
treating physicians, who found plaintiff to be 31); and (2) the ALJ did not question her
much more limited. Given that Dr. Herman further when plaintiff indicated that she had a
examined plaintiff once, and the stark learning disability (id. at 33). The Court finds
contrast between his opinion and those of the that remand is also required here where, as
treating physicians, the Court finds the ALJ here, the ALJ’s disability determination was
incorrectly assigned controlling weight to based on an under-developed record. As
this opinion. See Selian, 708 F. 3d at 419 such, the Court does not evaluate ALJ’s
(finding that the ALJ gave an inappropriate underlying analysis in its 12.05
amount of weight to the findings of a determination at this juncture.11
consultative physician after a single
10 The Court also notes that any potential harm from 11 With respect to the 12.05 determination, the ALJ
t h e w e i g h t g i v e n t o t h e C E e x a m ination was not acknowledged that plaintiff functions “below
isolated to the one report. For example, Medical age/grade expectations” (AR 257-58), and that she
Examiner Burstein incorporated the CE report into his was in special education classes and lacks a social
own limitation analysis. (AR 387.) network (id. at 299-307; 389-92), but found that her
deficits did not satisfy the applicable criteria under
12.05. Obviously, on remand, the ALJ will have re-
The Second Circuit has made clear that an one conclusion that could be reached here
“ALJ, unlike a judge in a trial, must [her]self and therefore remand is unnecessary (id.
affirmatively develop the record” in light of (citing Zabala v. Astrue, 595 F.3d 402, 409
“the essentially non-adversarial nature of a (2d Cir. 2010))), the Court does not agree.
benefits proceeding.” Pratts v. Chater, 94 The Commissioner argues that the education
F.3d 34, 37 (2d Cir. 1996) (quoting documents are “in part” and “to some extent”
Echevarria v. Secretary of HHS, 685 F.2d duplicative or cumulative. (Id. at 28.)
751, 755 (2d Cir. 1982)). The Commissioner However, the Court cannot conclude that the
is required to develop a complete medical excluded evidence is “largely identical” to
record before making a disability reports the ALJ did consider. Zabala, 595
determination, 20 C.F.R. § 404.1512(d)-(f) F.3d at 409; see also Greek, 802 F. 3d at 376
(1995), and that requirement exists even (stating that Zabala dealt with the
when, as here, the claimant is represented by circumstance in which an ALJ failed to
counsel, id. (citing Perez, 77 F.3d at 47). consider a second, virtually identical opinion
by the same treating physician).
First, as plaintiff points out (Pl. Mem. at
31-32), the ALJ, in support of her decision, The lack of psychotherapy notes also
made numerous references to materials that implicates the ALJ’s decision to give Ms.
were not in the record. (See e.g., plaintiff’s Knapper’s findings little weight. 12
IEP at AR 27, 30-31.) Although the Therefore, the ALJ should have sought and
Commissioner points to the fact that these reviewed these notes which may have
materials were submitted to the Appeals impacted her determination regarding the
Council (Def. Mem. at 23), the Second weight to be given to Ms. Knapper’s findings.
Circuit has held that, after the Appeals See Shaw, 221 F.3d at 134 (holding that the
Council denies review, the court’s review ALJ violated its duty to develop the factual
“focuses on the ALJ’s decision.” Lesterhuis record after claiming that plaintiff presented
v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015); see no evidence of disability, while
also Perez, 77 F.3d at 44 (holding that, after simultaneously discounting the medical
the Appeals Council denies review, the ALJ’s opinion of his treating physician); see also
decision is the final decision subject to Schaal, 134 F.3d at 505 (“[E]ven if the
judicial review). clinical findings were inadequate, it was the
ALJ’s duty to seek additional information
The Commissioner claims that, even if it
from [the treating physician] sua sponte.”).
had a duty to obtain the documents, there is
Moreover, the ALJ did not claim that these
no “basis to remand the case” because the
notes were unnecessary when denying
materials would have been cumulative of the
plaintiff’s disability claim and, given these
existing record. (Def. Mem. at 28.) Although
circumstances, this Court will not accept
the Commissioner argues that there was only
“these post hoc rationalizations for agency
consider these issues in the context of the fully is particularly relevant to adaptive functioning deficit
d e v e l o p e d r e c o r d . S e e B r o s . v . C o l vin, 233 F. Supp. . . . . Most importantly, perhaps, is the substantial
3d 320, 328 (N.D.N.Y. 2017) (finding it critical that evidence . . . showing that, despite the Commissioner's
the ALJ did not address the fact that plaintiff had a characterization, plaintiff does not and cannot live
learning disability and attended special education independently”).
classes); see also Geil v. Colvin, No. 14-CV-6463,
2015 WL 9217026, *9 (W.D.N.Y. Dec. 16, 2015) 12 The ALJ noted: “Ms. Knapper’s ‘findings’ are not
(“The record is replete with evidence of plaintiff's corroborated by objective evidence in the case record.
need for special education classes and such evidence Ms. Knapper has not provided any of her office visit
notes.” (AR 34.)
action.” Burlington Truck Lines v. U.S., 371 “the ALI failed to develop the record
U.S. 156, 168 (1962); see also McAllister, sufficiently to make’ appropriate disability
205 F. Supp. 3d at 333; Losquadro v. Astrue, determinations, a remand for ‘further
-No. 11-CV~—1798 (JFB), 2012 WL 4342069, findings [that] would so plainly help to assure
at *15 (E.D.N.Y. Sept. 21, 2012). the proper disposition of [the] claim . . . is
particularly appropriate.’” Butts v. Barnhart,
Second, plaintiff alleges that the ALJ 388 F.3d 377, 386 (2d Ci
. . . . . > ir. 2004), as
nt ee ing (PL Mem. at 33) amended on reh'g in part, 416 F.3d 101 (2d
Specifically the ALJ | asked no. further rane (quoting Rosa, 08 ee at 83
. ve (finding remand appropriate when the ALJ
plaintiff had oe ming tisabikty. (AR failed to obtain adequate information from
65.) Plaintiff argues that the “ALJ had a duty plaintiff's treating physician, other doctors
to probe further details” from plaintiff and and facilities, and consequently reached
therefore the ALJ did not “fully develop the unsupported conclusions)); see also Johnson
record.” (Pl. Mem. at 34) □□□ v. Barnhart, No. 02-CV-1704(NGG), 2004
□ ‘ *4 (E.D.N.Y. . 8,2
Commissioner argues that the ALJ met her (When the’ AL ne to adequately velop
duty by asking questions regarding plaintiff's the record, the appropriate remedy is a
daily function order to glean how such remand.”) (citing Peed v. Sullivan, 778 F.
disability “Def Mem nt 99 ) by a learning Supp. 1241, 1247 (E.D.N.Y.1991)).
. . Accordingly, on remand, the ALJ shall
1 The Court stone de that the At did ask consider the psychotherapy notes and the
However ‘after tellin the ALT about the IEP, and elicit further testimony from
learning disability, plaintiff appeared to try to oder to fail develop the recon disability in
elaborate, stating that she has difficulty with □
addition, subtraction, and reading. (AR 65.) V. CONCLUSION
llow- ions. ue
An asked the ow we dtied tha For the reasons set forth above, plaintiff’ s
the ALJ met her duty “to scrupulously and motion for judgment on the pleadings is
conscientiously probe into, inquire of, and denied. t The x Neadines i s hos ist
explore for all the relevant facts.” Rivera v. Jucement on the pleadings 1s also denied.
Astrue, No. 06-CV-3326 DLI CLP. 2009 WL The case is remanded to the ALJ for further
705756 at *7 (E.D.N.Y. Mar 16 2009) proceedings consistent with this
(quoting Hankerson v. Harris, 636 F.2d 893, Memorandum and Order.
895 (2d Cir. 1980)). This duty lies regardless □
of whether plaintiff is represented by counsel. \ on
See Pratts, 94 F.3d at 37 (“[T]he rule in our Dt ST
circuit [is] that ‘the ALJ, unlike a judge ina
trial, must [her]self affirmatively develop the |
record’ in light of ‘the essentially non- BIANCO
adversarial nature of a benefits proceeding . . Unjtefl States Circuit Judge
. . [E]ven when, as here, claimant is (sitWg by designation)
represented by counsel.”’)
(quoting Echevarria, 685 F.2d at 755). Dated: August 8, 2019
Central Islip, New York
20
***
Plaintiff is represented by Rezwanul Islam of
the Nassau/Suffolk Law Services Committee
Inc., 1 Helen Keller Way, 5th Floor,
Hempstead, New York 11550. The
Commissioner is represented by Assistant
United States Attorney Megan Jeanette
Freismuth of the U.S. Attorney’s Office, 610
Federal Plaza, Central Islip, New York
11722.