Rustemi v. Colvin

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KERIM RUSTEMI,

Plaintiff,

MEMORANDUM & ORDER

v.

17-cv-3318 (KAM)

ANDREW M. SAUL, Commissioner

of Social Security,

Defendant.1

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MATSUMOTO, United States District Judge:

Kerim Rustemi (“Plaintiff”) appeals the final decision

of the Commissioner of Social Security (“Defendant”) pursuant to

42 U.S.C. § 405(g), which found him ineligible for supplemental

security income benefits under Title XVI of the Social Security

Act (the “Act”) on the basis that he was not disabled within the

meaning of the Act. Before the Court are the parties’ cross-

motions for judgment on the pleadings. For the reasons set

forth below, Defendant’s motion is DENIED, Plaintiff’s motion is

GRANTED in part and DENIED in part, and this action is remanded

for further proceedings consistent with this Memorandum and

Order.

1 Plaintiff commenced this action against Carolyn W. Colvin, as Acting

Commissioner of Social Security. On January 21, 2017, Nancy A. Berryhill

became the Acting Commissioner of Social Security, and on June 17, 2019,

Andrew M. Saul became the Commissioner of Social Security. Because Carolyn

W. Colvin was sued in this action only in her official capacity, Andrew M.

Saul is automatically substituted for Carolyn Colvin as the named defendant.

See Fed. R. Civ. P. 25(d). The Clerk of the Court shall amend the caption in

this action as indicated above.

Background

I. Procedural History

On May 10, 2013, Plaintiff filed a joint application

for Social Security Disability Benefits and Supplemental

Security Income benefits pursuant to Title II and Title XVI of

the Social Security Act. (ECF No. 25, Administrative Transcript

(“Tr.”), at 192-194, 200-204.) Plaintiff claimed that he became

disabled on December 31, 2012 due to a combination of physical

and mental impairments. (Id. at 192-204.) The Social Security

Administration (SSA”) employee who accepted Plaintiff’s

application observed that Plaintiff “had a very poor memory, and

had some difficulty understanding. [Plaintiff] sat down and

stood up very slowly, and walked away very slowly. [Plaintiff]

also had some difficulty using and raising his left arm and

shoulder.” (Id. at 214.)

On August 2, 2013, the SSA denied both of Plaintiff’s

applications on the basis that he was not disabled within the

meaning of the Act. (Id. at 119-120.) Plaintiff requested a

hearing before an Administrative Law Judge (“ALJ”). (Id. at

123-124.) ALJ Mark Solomon held a hearing on April 7, 2015, at

which Plaintiff, represented by a non-attorney representative,

appeared and testified. (Id. at 77-102.)

On June 12, 2015, ALJ Solomon issued a decision

finding “that [Plaintiff] ha[d] the Residual Functional Capacity

(“RFC”) to perform sedentary work as defined in [20 C.F.R. §§]

1567(a) and 416.967(a)[,] except that [Plaintiff] [wa]s limited

to overhead reaching with non-dominant upper extremity.

[Plaintiff could] remember, understand, and carry out simple

instructions, make simple work-related decisions, maintain

attention and concentration for routine work, maintain a regular

schedule and perform low stress jobs, defined as[] one with no

close interpersonal contact with the general public.” (Id. at

63.) ALJ Solomon concluded that Plaintiff was not disabled

within the meaning of the Act and not entitled to benefits.

(Id. at 56-76.)

On June 22, 2015, Plaintiff appealed ALJ Solomon’s

decision to the Appeals Council. (Tr. 54-55.) The Appeals

Counsel denied Plaintiff’s request for review on November 22,

2016, making ALJ Solomon’s decision the final decision of the

Commissioner. (Tr. 1-7.) On January 20, 2017, Plaintiff filed

the instant action in federal court seeking review of the

Commissioner’s decision. (ECF No. 1, Complaint.)

II. Factual Background

A. Plaintiff’s Non–Medical History

Plaintiff was born on October 29, 1969 in Yugoslavia.

(Tr. 103, 218.) Plaintiff attended school in Yugoslavia until

the 8th grade. (Id. at 218.) Plaintiff is now a U.S. citizen.

(Id. at 192.)

Plaintiff was 43 years old at the alleged onset of his

disability on December 31, 2012. (Id. at 103.) Plaintiff’s

past work was as a waiter. (Id. at 233.) As a waiter,

Plaintiff worked on his feet for twelve hours a day, but was not

required to lift more than ten pounds. (Id. at 233.) Plaintiff

last worked in 2011. (Id. at 82.) Plaintiff resided in

Brooklyn, New York, at the time he filed his applications. (Id.

at 216.)

Plaintiff completed a “Function Report” on June 12,

2013. (Id. at 223-24.) The report contained the following

representations. Plaintiff gets up in the morning and likes to

drink coffee, cleans his room, “watch[es] out from [his]

window,” and “sleeps a lot”. (Id. at 224.) Plaintiff’s illness

affects his sleep, and he is limited in dressing and bathing

because he has back pain when he sits and stands and cannot lift

his left hand. (Id.) Plaintiff can do laundry and cook with

assistance, but he does not have the patience to cook for too

long. (Id. at 226.) Plaintiff can walk and use public

transportation but goes out “only if [he] need[s] to.” (Id.)

Plaintiff does not spend time with others, does not socialize

because people make him nervous, and has “lost interest in many

things.” (Id. at 228.) Plaintiff can follow written and spoken

instructions and “finish what [he] start[s],” but he has

problems concentrating and paying attention and is forgetful.

(Id.) Plaintiff has no problems getting along with people in

authority and has never lost a job because he cannot get along

with others. (Id. at 230.) When Plaintiff is under stress, he

forgets everything that he is supposed to do. (Id. at 231.)

B. Plaintiff’s Medical History

Plaintiff has presented medical records dating back to

August 26, 1991. (See generally Tr. 284-330.) The discussion

below, however, addresses only those medical records which

pertain to Plaintiff’s mental illness commencing on July 25,

2013. Although Plaintiff also suffers from degenerative joint

and spinal disease, Plaintiff does not appeal the portion of ALJ

Solomon’s addressing those conditions. Thus, the Court focuses

on the medical evidence regarding Plaintiff’s mental

impairments.

i. Treating Physician - Dr. Marlene Charles, M.D.

Psychiatrist Marlene Charles, M.D. (“Dr. Charles”),

began treating Plaintiff on December 31, 2013. (Id. at 661-

663.) Plaintiff complained of depression, which began four

years earlier when he injured his shoulder and back and his wife

left him to return to her native country with his children.

(Id. at 661.) Plaintiff reported difficulty sleeping, decreased

appetite, loss of energy and interest in activities, feelings of

sadness, and irritability. (Id.) Plaintiff denied having any

hallucinations or delusions at that time. (Id.)

After their first meeting, Dr. Charles described

Plaintiff as “sad looking,” “wary,” “tense,” casually groomed,

and anxious. (Id.) Dr. Charles found Plaintiff’s speech skills

and language skills normal, and she saw no apparent signs of

delusions, hallucinations, bizarre behaviors, or other

indications of psychosis. (Id.) Plaintiff credibly denied

homicidal or suicidal thoughts. (Id.) Plaintiff was fully

oriented and had fair insight and fair judgement. (Id. at 661-

62.) However, Plaintiff displayed signs of anxiety and moderate

depression. (Id.) Dr. Charles assigned Plaintiff a Global

Assessment of Functioning (“GAF”) score of 70, which corresponds

to mild symptoms; diagnosed him with Major Depressive Disorder,

Recurrent, Moderate; and prescribed him Zoloft. (Id.)

Plaintiff continued to follow-up with Dr. Charles over

the next several years. The medical records submitted by

Plaintiff provide a substantial amount of detail on Plaintiff’s

continued symptoms and treatment with Dr. Charles. Plaintiff

regularly struggled with anxiety and apprehension. (See, e.g.,

id. at 639, 652, 657, 659.) Although Plaintiff reported changes

in the degree of his symptoms, his diagnoses remained largely

unchanged over that period, with the exception that Dr. Charles

later added that Plaintiff also suffered from Generalized

Anxiety Disorder. (See, e.g., id. at 639.) On occasion, Dr.

Charles also found signs of psychotic thought process. (See,

e.g., id. at 647.) Throughout this period, Dr. Charles

routinely assigned Plaintiff a GAF of 70 to 75, and diagnosed

him with Major Depressive Disorder and Generalized Anxiety

Disorder. (See, e.g., id. at 650.) Plaintiff continued to take

medications including Xanax, Zoloft, and Risperdal.

On February 12, 2015, Dr. Charles completed a “Lower

Extremity Disability Questionnaire.” (Id. at 618-625.) Dr.

Charles left the majority of the sections which discussed

physical impairments blank and completed the sections which

discussed mental impairments. (Id.) Dr. Charles indicated that

she had seen Plaintiff on a monthly basis from December 2013

through February 2015. (Id. at 618.) Dr. Charles noted that

she had diagnosed Plaintiff with major depressive disorder, with

psychotic features, and anxiety disorder, and that Plaintiff’s

prognosis was fair with social support, medication management,

and psychotherapy. (Id.) Dr. Charles stated that her diagnoses

were supported by mental status examinations she conducted.

(Id. at 620.) Dr. Charles noted that Plaintiff’s symptoms

included depressed mood, anxiety, paranoid delusions, low

frustration tolerance, problems with attention and

concentration, trouble with recent memory, and fatigue. (Id.)

Dr. Charles indicated that Plaintiff could travel to and from

home and bathe himself but could not prepare meals. (Id. at

621.) Dr. Charles noted that Plaintiff was taking Xanax, which

made him drowsy; Zoloft, which caused Plaintiff to gain weight;

and Risperdal, which caused Plaintiff to suffer from somnolence.

(Id. at 623.) Dr. Charles indicated that Plaintiff was

incapable of tolerating even low stress jobs, would need to take

unscheduled breaks, and would likely be absent from work more

than three times per month. (Id. at 624.)

On March 25, 2015, Dr. Charles completed a

“Psychological/Psychiatric Disability Questionnaire” sent to her

by Plaintiff’s representative. (Id. at 667-677.) Dr. Charles

noted that she had seen Plaintiff monthly from December 2013

through March 2015. (Id. at 667.) Dr. Charles listed

Plaintiff’s diagnoses as major depression, with psychotic

features, and anxiety disorder. (Id.) Dr. Charles also noted

that Plaintiff suffered from auditory hallucinations and

paranoid delusions. (Id.) Dr. Charles stated that Plaintiff

had a then-current GAF score of 40, with the lowest in the past

year being 35 and the highest in the last year being 50. (Id.)

Dr. Charles wrote that Plaintiff’s primary symptoms were

depressed mood, anxiety, poor concentration, and poor attention

and memory, feelings of guilt, low self-esteem, low energy and

anhedonia (i.e., the reduced ability to experience pleasure).

(Id. at 669.) Dr. Charles noted that Plaintiff’s prognosis was

fair and that Plaintiff “needs family, social[,] and continuous

treatment for improvement.” (Id. at 668.) Dr. Charles noted

that Plaintiff lacked motivation and mistrusted both people and

his environment. (Id.)

Dr. Charles made findings with respect to Plaintiff’s

limitations in various areas:

•

Understanding and Memory: Plaintiff was “moderately

limited” in his ability to: “remember locations and work-

like procedures”; “understand one or two-step

instructions.” (Id. at 670.) Plaintiff was “markedly

limited” in his ability “to understand and remember

detailed instructions.” (Id.)

•

Sustained Concentration and Persistence: Plaintiff was

“moderately limited” in his ability to: “carry out simple

one or two-step instructions”; “maintain attention and

concentration for extended periods”; and “perform

activities within a schedule, maintain regular

attendance, and be punctual within customary tolerance.”

(Id. at 671.) Plaintiff was “markedly limited” in his

ability to: “carry out detailed instructions”; “sustain

ordinary routine without supervision”; “work in

coordination with or proximity to others without being

distracted by them”; “make simply work decisions”; and

“complete a normal workweek without interruptions from

psychologically based symptoms.” (Id.)

•

Social Interactions: Plaintiff was “mildly limited” in

his ability to “maintain socially appropriate behavior

and to adhere to basic standards of neatness and

cleanliness.” (Id. at 674.) Plaintiff was “moderately

limited” in his ability to “ask simply questions/request

assistance.” (Id.) Plaintiff was “markedly limited” in

his ability to: “interact appropriately with the general

public”; “accept instructions and respond appropriately

to criticism from supervisors”; and “get along with co-

workers or peers without distracting them or exhibiting

behavioral extremes.” (Id.)

•

Adaptation: Plaintiff was “mildly limited” in his

ability to “be aware of normal hazards and take

appropriate precautions.” (Id.) Plaintiff was “markedly

limited” in his ability to “respond appropriately to

changes in the work setting”; “travel to unfamiliar

places or use public transportation”; and “set realistic

goals or make plans independently.” (Id.)

Overall, Dr. Charles concluded that Plaintiff was

“[i]ncapable of even ‘low stress’” work due to the fact that he

suffered from “paranoia, depress[ion], poor concentration, [and]

poor memory.” (Id. at 676.) Dr. Charles stated that Plaintiff

would be absent more than three times per month. (Id.)

ii. Consultative Examiner – Sally Morcos, Psy.D.

Sally Morcos, Psy.D. (“Dr. Morcos”), conducted a

consultative examination of Plaintiff on July 25, 2013. (Id. at

326-329.) The report noted the following findings. Plaintiff

reported to Dr. Morcos that he had difficulty sleeping, did not

like to be around people, and had been very depressed since

divorcing four years earlier. (Id. at 326.) Plaintiff also

told Dr. Morcos that he experienced short-term and long-term

memory deficits. (Id. at 327.) Plaintiff was neatly dressed

and well-groomed, had tense posture and normal behavior, and

made appropriate eye contact. (Id.) Plaintiff’s thought

processes were “coherent and goal directed with no evidence of a

thought disorder.” (Id.) Plaintiff had a slightly agitated

affect and reported that he was in pain. (Id.) Plaintiff’s

mood was neutral and he was fully oriented. (Id.)

Plaintiff’s attention and concentration were intact,

although he committed one error when performing serial threes.

(Id. at 328.) Plaintiff’s recent and remote memory skills were

impaired due to emotional distress secondary to pain. (Id.)

Plaintiff could recall three of three objects immediately and

one of three objects after a delay. (Id.) Plaintiff’s

intellectual functioning was in the average range and his

general fund of information was appropriate to experience.

(Id.) Plaintiff had clear insight and judgment. (Id.)

Plaintiff reported that he could dress, shower and

groom himself. (Id.) Plaintiff stated that he could prepare

foods, do laundry, shop, manage money, and take public

transportation unassisted. (Id.) Plaintiff indicated that he

could not clean, because cleaning required bending over, and

that his sister cleaned for him. (Id.) Plaintiff reported that

he did not have any friends and did not like talking to people.

(Id.) Plaintiff did not have hobbies and spent his days looking

out the window, and would sometimes go for a walk in the park.

(Id.)

Dr. Morcos opined that Plaintiff had no limitations in

following and understanding simple directions and instructions,

performing simple and complex tasks independently, maintaining

attention and concentration, maintaining a regular schedule,

learning new tasks, and making appropriate decisions. (Id.)

Dr. Morcos further opined that Plaintiff had mild-to-moderate

limitations in relating adequately to others and a moderate

limitation in dealing with stress, due to his depressive

symptoms. (Id.) Dr. Morcos noted that “the results of the

examination appear to be consistent with psychiatric problems,

but in and of itself, this does not appear to be significant

enough to interfere with [Plaintiff’s] ability to function on a

daily basis. (Id. at 329.) Dr. Morcos diagnosed depressive

disorder, not otherwise specified, and found Plaintiff’s

prognosis to be between fair and good “given [that] [Plaintiff]

is not currently enrolled in treatment.” (Id.)

C. Administrative Hearing Testimony

As noted above, ALJ Solomon held a hearing on April 7,

2015 to determine whether Plaintiff qualified as “disabled”

within the meaning of the Act. (Id. at 77-102.) At the hearing,

ALJ Solomon received the testimony of (i) Plaintiff and (ii)

Melissa Fass-Karlin, a vocational expert.

i. Plaintiff’s Testimony

At his hearing, Plaintiff testified to the following

facts. Plaintiff last worked in 2011 and became disabled in

December 31, 2012, when he was unable to get out of bed for 3

days due to back pain. (Id. at 82-83.) As of the hearing date,

Plaintiff resided with his sister and his nephew. (Tr. 84.)

Plaintiff took the subway to the hearing, but

Plaintiff’s sister accompanied him because he cannot travel

alone because his knee locks up. (Id.) Plaintiff cannot shower

or dress without assistance because he has difficulty bending.

(Id. at 85-86.) Plaintiff can shave and comb his hair, but he

cannot do any household chores like cooking, cleaning, or

laundry. (Id. at 86.) Plaintiff had problems using his left

hand. (Id. at 93.) Plaintiff can eat soup or salad on his own

but his sister would need to cut steak or use a knife for him.

(Id.)

Plaintiff is frustrated because of constant pain and

spends the day walking around the living room, lying on the

floor, or sitting. (Id. at 87.) He does not watch TV or listen

to the radio because noise bothers him and he gets frustrated

and angry. (Id.) Plaintiff had two surgeries. (Id.) He took

pain medication, but it made him sleepy and made him feel like

he would vomit sometimes. (Id. at 88.) Plaintiff could

maintain one position for “maybe a half an hour”. (Id.)

Plaintiff saw his psychiatrist, Dr. Charles, once a

month, but had also seen a therapist three times a week. (Id.

at 90.) Plaintiff gets anxiety and frustration; when he gets

upset, he will shake, but the medication will calm him down.

(Id. at 91.) Plaintiff gets frustrated because of the pain and

does not like to talk to people or be around people because they

bother him. (Id.)

Plaintiff worked as a waiter for 15 to 20 years. (Id.

at 94.) Plaintiff also worked as a maintenance person in 2003

for less than a year, vacuuming carpets in office buildings and

taking out garbage. (Id. at 95-96.)

ii. Vocational Expert Testimony of Melissa Fass-

Karlin

Melissa Fass-Karlin (“Ms. Fass-Karlin”) testified as a

vocational expert. As Ms. Fass-Karlin explained, Plaintiff had

past relevant work as a waiter, which was light work with an

Specific Vocational Preparation (“SVP”) of 3, which is listed

under Dictionary of Occupational Titles (“DOT”) 311.477-030, and

as a cleaner, which was medium work with an SVP of 2, listed

under DOT 381.687-018. (Id. at 97.)

ALJ Solomon asked Ms. Fass-Karlin if there were jobs a

hypothetical individual could perform if they were limited to

light or sedentary work, and with the limitations of occasional

overhead reaching with the non-dominant left upper extremity; if

they could remember, understand, and carry out simple

instructions; make simple work-related decisions; maintain

attention and concentration for rote work; maintain a regular

schedule; and perform a low stress job defined as one with no

close interpersonal contact with the general public. (Id. at

97-98.) Ms. Fass-Karlin identified three potential jobs for

this hypothetical individual at the light level: assembler of

small products, routing clerk, and mail clerk. (Id. at 98.)

Ms. Fass-Karlin also identified three potential jobs for this

hypothetical individual at the sedentary level: bench hand,

addresser, and surveillance system monitor. (Id. at 98-99.)

Standard of Review

Unsuccessful claimants for disability benefits may

bring an action in federal district court seeking judicial

review of the Commissioner’s denial of their benefits “within

sixty days after the mailing . . . of notice of such decision or

within such further time as the Commissioner of Social Security

may allow.” 42 U.S.C. §§ 405(g), 1383(c)(3). A district court

reviewing the final determination of the Commissioner must

determine whether the correct legal standards were applied and

whether substantial evidence supports the decision. See Schaal

v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998).

“‘A district court may set aside the Commissioner's

determination that a claimant is not disabled only if the

factual findings are not supported by ‘substantial evidence’ or

if the decision is based on legal error.’” Burgess v. Astrue,

537 F.3d 117, 127 (2d Cir. 2008) (quoting Shaw v. Chater, 221

F.3d 126, 131 (2d Cir. 2000)). “Substantial evidence means

‘more than a mere scintilla. It means such relevant evidence as

a reasonable mind might accept as adequate to support a

conclusion.’” Id. (quoting Halloran v. Barnhart, 362 F.3d 28,

31 (2d Cir. 2004)). If there is substantial evidence in the

record to support the Commissioner’s factual findings, those

findings must be upheld. 42 U.S.C. § 405(g) (“The findings of

the Commissioner of Social Security as to any fact, if supported

by substantial evidence, shall be conclusive . . . .”). Inquiry

into legal error requires the court to ask whether “‘the

claimant has had a full hearing under the [Commissioner’s]

regulations and in accordance with the beneficent purposes of

the [Social Security] Act.’” Moran v. Astrue, 569 F.3d 108, 112

(2d Cir. 2009) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d

Cir. 1990)). The reviewing court does not have the authority to

conduct a de novo review, and may not substitute its own

judgment for that of the ALJ, even when it might have

justifiably reached a different result. Cage v. Comm’r, 692

F.3d 118, 122 (2d Cir. 2012).

To receive disability benefits, a claimant must be

“disabled” within the meaning of the Act. See 42 U.S.C. §§

423(a), (d). A claimant meets this requirement when she is

unable to “engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than

12 months.” Id. § 423(d)(1)(A); Shaw, 221 F.3d at 131–32. The

impairment must be of “such severity” that the claimant is

unable to do her previous work or engage in any other kind of

substantial gainful work. 42 U.S.C. § 423(d)(2)(A).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s condition meets the Act’s

definition of disability. See 20 C.F.R. § 404.1520. This

process is essentially as follows:

[I]f the Commissioner determines (1) that the claimant is

not working, (2) that [s]he has a ‘severe impairment,’ (3)

that the impairment is not one [listed in Appendix 1 of the

regulations] that conclusively requires a determination of

disability, and (4) that the claimant is not capable of

continuing in [her] prior type of work, the Commissioner

must find [her] disabled if (5) there is not another type

of work the claimant can do.

Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhart, 335

F.3d 99, 106 (2d Cir. 2003) (alterations in original)); see also

20 C.F.R. § 404.152(a)(4). At any of the previously mentioned

steps, if the answer is “no,” then the analysis stops and the

ALJ must find claimant not disabled under the Act. See id.

During this five-step process, the Commissioner must

consider whether “the combined effect of any such impairment . .

. would be of sufficient severity to establish eligibility for

Social Security benefits.” 20 C.F.R. § 404.1523. Further, if

the Commissioner does find a combination of impairments, the

combined impact of the impairments, including those that are not

severe (as defined by the regulations), will be considered in

the determination process. 20 C.F.R. § 416.945(a)(2).

In steps one through four of the sequential five-step

framework, the claimant bears the “general burden of proving . .

. disability.” Burgess, 537 F.3d at 128. At step five, the

burden shifts from the claimant to the Commissioner, requiring

that the Commissioner show that, in light of the claimant’s

residual functional capacity, age, education, and work

experience, the claimant is “able to engage in gainful

employment within the national economy.” Sobolewski v. Apfel,

985 F. Supp. 300, 310 (E.D.N.Y. 1997).

“The Commissioner must consider the following in

determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence

of pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999) (alterations in original)).

Discussion

Plaintiff argues that ALJ Solomon: (1) erred when he

found that Plaintiff did not meet Listing 12.04; (2) failed to

properly evaluate the opinion of Plaintiff’s treating

psychiatrist; and (3) erred in assessing Plaintiff’s RFC without

following the guidelines set forth in SSR 96-8p. (See generally

ECF No. 16, Memorandum of Law in Support of Plaintiff’s Motion

for Judgement on the Pleadings.) Defendant argues that ALJ

Solomon correctly determined that Plaintiff did not meet Listing

12.04, that ALJ Solomon properly weighed the medical evidence,

and that ALJ Solomon properly determined Plaintiff’s RFC. (ECF

No. 24, Memorandum of Law in Support of the Commissioner’s

Motion for Judgment on the Pleadings.)

I. ALJ Solomon Failed to Properly Consider Listing 12.04

Plaintiff argues that ALJ Solomon failed to properly

consider whether Plaintiff met the requirements of Listing 12.04

for affective disorders. The Court need not address this

argument as the action must be remanded for the reasons set

forth below, and insofar as a determination of that issue hinges

upon the proper weight of the relevant medical opinions.

II. ALJ Solomon Erred in Evaluating Plaintiff’s Medical

Evidence

Plaintiff argues that ALJ Solomon did not properly

weigh the medical evidence. Specifically, Plaintiff argues that

ALJ Solomon erred in giving limited weight to the opinion of

Plaintiff’s treating psychiatrist, Dr. Charles. The Court

agrees with Plaintiff.

The Commissioner must evaluate every medical opinion

in the record, “[r]egardless of its source,” when determining

whether an individual is disabled. 20 C.F.R. § 404.1527(c).

The Commissioner will give the medical opinion of a treating

source “controlling” weight if the Commissioner finds that the

opinion as to the “nature and severity of [the claimant’s]

impairment(s) is well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent

with the other substantial evidence in [the] case record.” 20

C.F.R. § 404.1527(c)(2); see also Burgess, 537 F.3d at 128

(describing the principle as the “treating physician rule”

(citations omitted)); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.

1999) (“When . . . substantial evidence in the record conflicts

with the treating physician’s opinion, however, that opinion

will not be deemed controlling.”).

Importantly, the regulations set forth various

“factors” that ALJs must consider in determining how to weigh

medical opinions, including treating physician opinions. See 20

C.F.R. § 404.1527(c). When a treating physician’s opinion is

not given controlling weight, the ALJ must “comprehensively set

forth his [or her] reasons for the weight assigned to a treating

physician’s opinion.” Burgess, 537 F.3d at 129 (quoting

Halloran, 362 F.3d at 33); accord 20 C.F.R. § 404.1527(c)(2).

Failure to provide “good reasons” for the weight assigned to a

treating physician’s opinion constitutes grounds for remand.

Halloran, 362 F.3d at 33 (“We do not hesitate to remand when the

Commissioner has not provided ‘good reasons’ for the weight

given to a treating physicians opinion and we will continue

remanding when we encounter opinions from ALJ’s that do not

comprehensively set forth reasons for the weight assigned to a

treating physician’s opinion.”).

Applicable regulations do not exhaustively define what

constitutes a “good reason” for assigning a particular weight to

a treating physician’s opinion. But “to override the opinion of

the treating physician, . . . the ALJ must explicitly consider,

inter alia: (1) the frequen[c]y, length, nature, and extent of

treatment; (2) the amount of medical evidence supporting the

opinion; (3) the consistency of the opinion with the remaining

medical evidence; and (4) whether the physician is a

specialist.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)

(citing Burgess, 537 F.3d at 129); see also 20 C.F.R. §

404.1527(c)(2)-(6). The ALJ must also consider whether the

source of the medical opinion examined the claimant, and

opinions from examining sources are “[g]enerally . . . give[n]

more weight” than opinions from non-examining sources. 20

C.F.R. § 404.1527(c)(1). The foregoing factors also guide the

ALJ’s evaluation of other medical sources’ opinions. Canales v.

Comm’r of Soc. Sec., 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010)

(“SSR 06–03p further directs ALJs to use the same factors for

the evaluation of the opinions of acceptable medical sources to

evaluate the opinions of medical sources who are not acceptable

medical sources, such as licensed social workers.” (internal

quotation marks omitted)); see also 20 C.F.R. § 404.1527(c).

The reasons stated by the ALJ for assigning limited

weight to Dr. Charles’ opinion do not constitute “good reasons”

for departing from the treating physician’s opinion. ALJ

Solomon made only cursory statements as to his reasons for

departing from Dr. Charles’ opinion, and did not cite specific

pages or notations in the record. Moreover, the Court reviewed

the record and found ALJ Solomon’s statements to be erroneous.

First, ALJ Solomon noted that “the treating

psychiatrist indicated that [Plaintiff’s] psychiatric

difficulties were related to social, interpersonal, and economic

stressors. [Dr. Charles] reported that [Plaintiff’s] condition

was well-controlled with medication and psychotherapy

treatment.” (Tr. 66.) ALJ Solomon then noted that “during the

treatment period, the mental status evaluations remained within

normal limits, with no noted psychiatric limitations.” (Id.)

ALJ Solomon’s assertion that Dr. Charles stated that Plaintiff’s

condition was well-controlled with medication is not supported

by the medical records. To the contrary, in the Lower Extremity

Questionnaire filled out by Dr. Charles, she noted that

Plaintiff had a fair prognosis with social support, medication

management, and psychotherapy. (Id. at 618.) In the same

report, Dr. Charles noted that Plaintiff suffered from “chronic

medical and mental conditions requiring continuous care.” (Id.

at 625.) Moreover, in each of Plaintiff’s mental status

examinations, it was noted that Plaintiff was tense and anxious.

ALJ Solomon’s assertion that Plaintiff’s mental status

examinations were all within normal limits is not supported by

the records. Though Plaintiff might have had symptoms that

waxed and waned, he was at times found to suffer from psychosis,

and on almost every occasion was found to be tense, wary,

anxious, or complaining of “excessive worrying.” (See generally

id. at 626-664.)

Second, ALJ Solomon noted that “at all times,

[Plaintiff] reported that he was fully independent in all

activities of daily living.” (Id. at 66.) This assertion

similarly finds no support in the record. ALJ Solomon cites no

specific exhibit or statement in the record to support this

claim. Moreover, Plaintiff’s written and oral testimony

contradicts this finding. Plaintiff completed a function report

in which he stated that he had problems with dressing and

bathing. (Id. at 224.) Plaintiff noted that he can do laundry

and cook with assistance and does not have the patience to cook

for too long. (Id. at 226.) At the hearing, Plaintiff

testified that he is unable to shower or dress himself because

he has difficulty bending. (Id. at 85-86.) Plaintiff testified

that he can shave and comb his hair, but that he cannot do any

household chores like cooking, cleaning or laundry. (Id. at

86.) Plaintiff testified that his sister accompanied him to the

hearing because he cannot take public transportation alone.

(Id. at 84.) Plaintiff testified that he gets anxiety and

frustration and that when he gets upset, he will shake, but the

medication will calm him down. (Id. at 91.) Plaintiff

testified that he gets frustrated because of the pain and that

he does not like to talk to people or be around people because

they bother him. (Id.) And Plaintiff testified that he had

problems using his left hand, and that he can eat soup or salad

on his own, but that his sister would need to cut steak or use a

knife for him. (Id. at 93.) These statements are starkly at

odds with the ALJ’s findings that Plaintiff “at all times stated

that he was independent in activities of daily living.”

Finally, ALJ Solomon noted that the GAF scores which

Dr. Charles assigned Plaintiff were inconsistent with Dr.

Charles’ prior opinions, rendering her opinion of little weight.

(Id.) This reasoning fails insofar as the Second Circuit

recently ruled in Estrella v. Berryhill, 925 F.3d 90 (2d Cir.

2019), that an ALJ erred in assigning little weight to a

treating psychiatrist’s opinion simply because the psychiatrist

had assigned a GAF score of 70, which the ALJ felt was

inconsistent with the opinion rendered. The fact that, in one

instance, the plaintiff had been assigned a benign score did

“not provide good reasons for assigning little weight to

[medical source] opinion. The Social Security Administration

has explained that [u]nless [a] clinician clearly explained the

reasons behind his or her GAF rating, and the period to which

the rating applies, it does not provide a reliable longitudinal

picture of the claimant’s mental functioning for a disability

analysis.” Id. at 97-98 (internal quotation marks omitted).

The Second Circuit cited the language of Burgess, making clear

that the ALJ must consider, inter alia, “(1) the frequen[cy],

length, nature, and extent of treatment; (2) the amount of

medical evidence supporting the opinion; (3) the consistency of

the opinion with the remaining medical evidence, and (4) whether

the physician is a specialist.” Id. at 96. In this instance,

ALJ Solomon failed to consider those factors. Dr. Charles

treated Plaintiff regularly for a considerable length of time,

with monthly visits, and ALJ Solomon failed to address the fact

that Dr. Charles is a board-certified psychiatrist with a

specialty in psychiatry.

Thus, the Court finds that ALJ Solomon has failed to

give “good reasons” for giving limited weight to the opinion of

Dr. Charles, Plaintiff’s treating psychiatrist.

III. The ALJ’s RFC Is Not in Accordance with the provisions of

SSR 96-8p

Plaintiff argues that ALJ Solomon failed to adhere to

the requirements set forth in SSR 96-8p. The Court agrees with

Plaintiff that the ALJ failed to identify Plaintiff’s functional

limitations or restrictions and assess Plaintiff’s work-related

abilities, function-by-function. The Court remands this action

for this reason and for the reasons set forth above.

Conclusion

Federal regulations provide that “[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. § 405(g).

Remand is warranted where “there are gaps in the administrative

record or the ALJ has applied an improper legal standard.”

Callahan v. Rosa, 168 F.3d at 82–83 (quoting Pratts, 94 F.3d at

39 (internal quotation marks omitted)). Remand is particularly

appropriate where further findings or explanation will clarify

the rationale for the ALJ’s decision. Pratts, 94 F.3d at 39.

The Court finds that ALJ Solomon erred in failing to

give good reason for giving limited weight to the opinion of Dr.

Charles, Plaintiff’s treating psychiatrist. Additionally, the

Court notes that the ALJ failed to make a finding at Step Two as

to whether Plaintiff’s Generalized Anxiety Disorder constituted

a severe impairment. For the foregoing reasons, the Court

remands this case for further proceedings consistent with this

Memorandum and Order. On remand, the ALJ must:

(1) Properly weigh the opinion evidence of the

treating and examining sources;

(2) Consider whether Plaintiff’s Generalized

Anxiety Disorder constitutes a severe impairment; and

(3) Consider whether Plaintiff meets or equals

Listing 12.04, Listing 12.06 and/or Listing 12.03; and

(4) Assess Plaintiff’s functional limitations and

restrictions and work-related abilities on a function-

by-function basis as required by SSR 96-8p.

SO ORDERED.

Dated: Brooklyn, New York

January 17, 2020

/s/

Hon. Kiyo A. Matsumoto

United States District Judge