Harris v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JUSTIN HARRIS,

Plaintiff,

MEMORANDUM AND ORDER

v.

17-cv-3867 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Justin Harris (“Plaintiff”) appeals the

final decision of the Commissioner of Social Security (the

“Commissioner”), which found Plaintiff not disabled and, thus,

not eligible for Supplemental Security Income benefits under

Title XVI of the Social Security Act (“the Act”). Before the

court are the parties’ cross-motions for judgment on the

pleadings. For the reasons set forth below, the Commissioner’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.

Background

The parties entered a joint stipulation of facts dated

April 11, 2018, compiled from the administrative record. (ECF

No. 20-1, Joint Stipulation of Relevant Facts from the Certified

Administrative Record (“Stip.”).) The Court incorporates the

facts contained therein by reference and details only those

relevant to this Memorandum and Order.

I. Procedural History

On August 19, 2013, Plaintiff, then a 25-year-old

former maintenance worker, filed an application for Supplemental

Security Income (“SSI”) benefits.1 (Id. ¶ 1.) Plaintiff alleged

disability from July 6, 2011 due to bipolar disorder, asthma,

muscle spasms in his neck and lower and mid back, limited use of

his right arm, cramps in his right upper thigh, and aches and

pains. (Id.) Plaintiff’s claim was denied. (Id.)

Plaintiff requested a hearing before an Administrative

Law Judge (“ALJ”). (Id.) On February 3, 2016, Plaintiff

appeared for a hearing before ALJ James Kearns (the “ALJ”).

(Id.) Plaintiff, represented by counsel, appeared and

testified, as did a vocational expert, Mr. Andrew Vaughn (“Mr.

Vaughn”). (Id.) On February 23, 2016, the ALJ issued a

decision finding Plaintiff not disabled for purposes of SSI from

August 19, 2013, the day Plaintiff’s application was filed,

through the date of the decision. (Id.) Plaintiff requested

review by the Appeals Council. (Id.) On April 27, 2017, the

Appeals Council denied Plaintiff’s request, making the ALJ’s

1 Plaintiff also applied for disability insurance benefits, but lacked the

requisite past earnings to qualify for such benefits. (Stip., ¶ 1 n.2.)

Plaintiff does not challenge his ineligibility for disability insurance

benefits on appeal. (Id.)

decision the final decision of the Commissioner. (Id.) This

action followed. (Id.)

I. Non-Medical Evidence

A. Plaintiff’s Activities of Daily Living Form

On September 10, 2013, in conjunction with Plaintiff’s

application for benefits, Plaintiff’s “friend/landlord”

completed an Adult Function Report on his behalf. The form

asserts the following facts:

Plaintiff lives alone and spends his days watching

television, showering, eating, and sleeping. (ECF No. 21,

Administrative Record (“Tr.”), at 217-18.) Plaintiff’s friend

commented that Plaintiff wears the same clothes every day and is

not groomed. (Id. at 218.) Plaintiff prepares his own meals

and goes outside about twice a week, though he reportedly cannot

go out alone because he gets confused and lost and gets into

“confrontations.” (Id. at 219-20.)

Plaintiff spends time with others on the phone and in

person on a daily basis, but has trouble getting along with

others, indicating that he has “confrontations.” (Id. at 222.)

Plaintiff struggles to get along with people in authority. (Id.

at 224.) Plaintiff has problems paying attention (“I always get

distracted”) and finishing what he starts (“Attention span[] is

short. Always say I’ll do it later.”). (Id. at 224.)

Plaintiff has trouble remembering things (“I lose things

easily”) and requires reminders to take care of certain personal

needs, for instance, when to take medications and the

appropriate doses. (Id. at 219, 224.) Plaintiff feels stressed

by changes in schedule and claims to suffer from daily to weekly

panic attacks. (Id. at 225.)

B. Plaintiff’s Hearing Testimony

On February 3, 2016, Plaintiff, then 27 years old,

appeared before the ALJ and testified as follows:

Plaintiff resides with his mother and sister. (Id. at

64.) When Plaintiff needs to travel, his mother drives him

around. (Id.) Plaintiff does not travel without his mother; he

“do[es]n’t have anywhere to go” when she is at work. (Id. at

65.) On a typical day, Plaintiff watches television, takes

naps, showers a lot, and eats. (Id. at 68.) Plaintiff’s mother

takes care of the housework, including cleaning, cooking, and

laundry. (Id.) Plaintiff regularly leaves the house only to

visit doctors. (Id.) Plaintiff sometimes visits the store, and

sometimes attends church with his mother. (Id. at 68-69.)

Plaintiff completed school through the ninth grade.

(Id. at 65.) Plaintiff had trouble in school, as he was

“[f]ighting all the time.” (Id. at 75.) After he left school,

Plaintiff attempted to work. (Id. at 75.) Plaintiff held

several jobs, primarily in the fast food industry. (Id.)

Plaintiff’s last job was “years” ago. (Id. at 65.) The ALJ

asked Plaintiff whether he thought he could work, to which

Plaintiff responded, “No.” (Id. at 66.) Plaintiff said he

“can’t deal with a lot of people,” as he “get[s] nervous” and

“suffocate[s] and stuff.” (Id.) Plaintiff explained further

that he had previously struggled at work. (Id. at 76.)

Plaintiff was yelled at for not moving fast enough, or for not

interacting with customers in the “right” way, noting that he

sometimes argued with customers. (Id.)

With respect to physical limitations, Plaintiff

testified that he was shot when he was in the ninth grade. (Id.

at 67.) A fragment of the bullet remains in Plaintiff’s right

thigh and cannot be removed because it is adjacent to an artery.

(Id. at 72-73.) Plaintiff visits a doctor to address the pain

from this wound. (Id. at 73.) Plaintiff was also in an

automobile accident when he was about twelve. (Id. at 73-74.)

Plaintiff continues to suffer from injuries sustained in that

accident, too, including headaches and back pain. (Id.)

Plaintiff indicated that he struggles to sit up

straight. (Id. at 69.) Plaintiff finds walking painful and

requires the assistance of a cane. (Id. at 70.) Plaintiff can

only walk four or five blocks before his leg starts to bother

him. (Id.) Plaintiff could lift and carry no more than a bag

of groceries. (Id.) Plaintiff also finds standing painful.

(Id. at 70-71.)

Plaintiff also indicated that he struggled with

psychiatric problems and visited a doctor regularly for said

problems. (Id. at 67, 79.) For his psychiatric problems,

Plaintiff takes two medications each day – one is to help

Plaintiff sleep, the other is to help Plaintiff remain calm.

(Id. at 67.) Plaintiff does not have any friends or a

significant other. (Id. at 69.) Plaintiff testified that,

throughout his life, he has had trouble getting along with

others. (See id.) Plaintiff has always had frequent arguments

which regularly devolve into altercations, including at least

once with an ex-girlfriend. (Id. at 77, 79.) Plaintiff

indicated that, at one point, he appeared before a judge and was

directed to anger management. (Id. at 78.)

C. Testimony of Andrew Vaughn

Mr. Vaughan, the vocational expert, also testified at

the February 3, 2016 hearing before the ALJ:

Mr. Vaughan testified that Plaintiff’s past work was

as a fast food worker, Dictionary of Occupational Titles (“DOT”)

311.472-010, Specific Vocational Preparation (“SVP”) 2, light.

(Id. at 90.) The ALJ asked Mr. Vaughn whether a hypothetical

individual with the past work of a fast food worker, the same

past work as Plaintiff, who could do sedentary work with only

simple and routine tasks, and could have only occasional contact

with coworkers and the public, could perform that past work.

(Id.) Mr. Vaughan responded in the negative, noting that fast

food jobs would be precluded. (Id.)

The ALJ clarified that the hypothetical individual’s

contact with co-workers and the public could occur by phone, and

need not take place in person. (Id.) Mr. Vaughn then testified

that this hypothetical individual could perform certain

sedentary, unskilled jobs. (Id. at 90-91.) The individual

could work as a: table worker or spotter, DOT 739.687-182, SVP

2; press operator, DOT 715.685-050, SVP 2; and addressing clerk,

DOT 209.587-010, SVP 2. (Id.) The individual could perform

these jobs if he were off task 10% of the time, but not if he

were off task 15% of the time. (Id.)

II. Medical Evidence

A. Johanina McCormick, Ph.D.

On October 21, 2013, at the request of the Social

Security Administration, Plaintiff was examined by Johanina

McCormick, Ph.D. (“Dr. McCormick”) for a consultative

psychiatric evaluation. (Tr. at 330-35.) Dr. McCormick

indicated that Plaintiff’s “[d]emeanor and responsiveness to

questions were mildly irritable,” but that his “[m]anner of

relating, social skills, and overall presentation were

adequate.” (Id. at 331.) Dr. McCormick noted that Plaintiff

was well groomed, that his motor behavior was normal, and that

his eye contact was appropriate. (Id.) Dr. McCormick found

Plaintiff’s speech intelligibility to be fluent, but noted that

his expressive language was limited to “short sentences of two

to three words” and his receptive language was limited by “mild

difficulty with . . . comprehension.” (Id.)

Dr. McCormick found Plaintiff’s thought processes to

be “coherent and goal directed.” (Id. at 332.) Dr. McCormick

found that Plaintiff had full affect, no signs of delusions or

paranoia, and a “neutral” mood. (Id.) Dr. McCormick indicated

that both Plaintiff’s “attention and concentration” and his

“recent and remote memory skills” were “mildly impaired due to

back pain, depression and anxiety.” (Id.) Dr. McCormick found

Plaintiff’s intellectual functioning “below average,” but found

his general fund of information “appropriate to experience.”

(Id.) Plaintiff had “fair” insight and “poor” judgment. (Id.)

Turning to plaintiff’s daily activities as of the date

of the evaluation, Dr. McCormick noted that Plaintiff could

dress, cook, bathe, and groom himself. (Id.) Plaintiff could

not clean or do laundry. (Id.) Plaintiff stated that sometimes

“friends” help with those activities. (Id.) Plaintiff can take

public transportation. (Id.) Plaintiff stated to Dr. McCormick

that he has “supportive friends.” (Id.) Plaintiff spends his

days going on errands and watching television. (Id. at 333.)

Turning to Plaintiff’s limitations, Dr. McCormick

found that Plaintiff can “follow and understand simple

directions and instructions, and perform simple tasks

independently.” (Id.) Dr. McCormick, however, found that

Plaintiff was “moderately impaired” in “maintaining attention

and concentration,” opining that Plaintiff could “maintain a

regular schedule and learn new tasks with help.” (Id. (emphasis

added).) Dr. McCormick found Plaintiff “moderately impaired” in

“performing complex tasks independently,” noting that Plaintiff

requires supervision. (Id.) Dr. McCormick found Plaintiff

“moderately impaired” in making appropriate decisions. (Id.)

Dr. McCormick also found Plaintiff “mildly impaired” in

“relating adequately with others” and “appropriately dealing

with stress.” (Id.)

Dr. McCormick stated that Plaintiff’s “[d]ifficulties

are caused by symptoms of depression, anxiety, and short-term

memory deficits.” (Id.) “The results of the evaluation appear

to be consistent with psychiatric and cognitive problems, but in

itself, this does not appear to be significant enough to

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

basis.” (Id.) Dr. McCormick gave a prognosis of “[f]air given

treatment compliance.” (Id.)

B. P. Kennedy-Walsh, M.D.

On November 19, 2013, P. Kennedy-Walsh, M.D. (“Dr.

Kennedy-Walsh”), a State agency psychiatric consultant, reviewed

Plaintiff’s file and completed a psychiatric review technique

form. (Id. at 100-08.) Dr. Kennedy-Walsh assessed whether

Plaintiff’s “severe” impairment of “affective disorders,” and

“non severe” impairments of “other and unspecified

arthropathies,” met Listing 12.04 (Affective Disorders). (Id.

at 103.) Dr. Kennedy-Walsh concluded they did not. (Id.)

Addressing the Listing 12.04 criteria, Dr. Kennedy-

Walsh opined that Plaintiff had “mild” restrictions in daily

living; “moderate” difficulty “maintaining social functioning”

and “maintaining concentration, persistence, or pace”; and “one

or two” repeated episodes of deterioration. (Id.) Dr. Kennedy-

Walsh also completed a “Mental Residual Functional Capacity

[“RFC”] Assessment.” (Id. at 105.) Dr. Kennedy-Walsh opined

Plaintiff was limited as follows:

•

Understanding & Memory: Plaintiff is “moderately limited”

in his ability to remember locations and work-like

procedures and ability to understand and remember

detailed instructions. (Id.) Plaintiff is “not

significantly limited” in his ability to understand and

remember very short and simple instructions. (Id.)

•

Sustained Concentration and Persistence: Plaintiff is

“moderately limited” in his ability to carry out detailed

instructions; maintain attention and concentration for

extended periods; perform activities within a schedule,

maintain regular attendance, and be punctual within

customary tolerances; sustain an ordinary routine without

supervision; work in coordination with or in proximity to

others without being distracted by them; and complete a

normal workday and workweek without interruptions from

psychologically based symptoms and to perform at a

consistent pace without an unreasonable number and length

of rest periods. (Id. at 105-06.) Plaintiff is “not

significantly limited” in his ability to carry out very

short and simple instructions. (Id. at 105.)

•

Social Interaction Limitations: Plaintiff is “moderately

limited” in his ability to interact appropriately with

the general public; accept instructions and respond

appropriately to criticism from supervisors; get along

with coworkers or peers without distracting them or

exhibiting behavioral extremes; and maintain socially

appropriate behavior and adhere to basic standards of

neatness and cleanliness. (Id. at 106.) Plaintiff is

“not significantly limited” in his ability to ask simple

questions or request assistance. (Id.)

•

Adaptation Limitations: Plaintiff is “moderately

limited” in his ability to respond appropriately to

changes in the work setting. (Id.) Plaintiff is “not

significantly limited” in his ability to be aware of

normal hazards and take appropriate precautions; travel

in unfamiliar places or use public transportation; and

set realistic goals or make plans independently of

others. (Id.)

Dr. Kennedy-Walsh provided some additional detail on these

limitations in narrative form. (See id. at 103.)

C. Thomas W. Perron, N.P./Karamchand Rameshwar, M.D.

Thomas W. Perron, N.P. (“Nurse Perron”) completed two

“Treating Physician’s Wellness Plan Report” forms, dated

February 19, 2015 and May 12, 2015, respectively, stating that

Plaintiff was unable to work for at least 12 months. (Id. at

403-06.) The February form noted diagnoses of mood disorder

rule out bipolar disorder, anxiety disorder, and polysubstance

dependence. (Id. at 405.) The May form noted diagnoses of

bipolar affective disorder and anxiety disorder not otherwise

specified. (Id. at 403.) Karamchand Rameshwar, M.D. (“Dr.

Rameshwar”) co-signed both forms. (Id. at 403-06.)

On March 16, 2015, Nurse Perron completed a “Mental

Impairment Questionnaire,” co-signed by Dr. Rameshwar. (Id. at

424-29.) According to the questionnaire, Nurse Perron began

treating Plaintiff in March 2013, stopped for a brief period,

and re-started treatment in May 2014, continuing through the

date of the questionnaire. (Id. at 424.) Nurse Perron noted

diagnoses of bipolar disorder and polysubstance dependence.

(Id.) Nurse Perron assigned Plaintiff a General Assessment of

Functioning (“GAF”)2 score of 60. (Id.)

Nurse Perron stated that Plaintiff’s symptomatology

was stable, and that Plaintiff was attending monthly

appointments for medication management and making a “good

effort.” (Id.) Plaintiff was prescribed Seroquel and

Wellbutrin. (Id.) Nurse Perron opined that Plaintiff’s

prognosis was “good.” (Id.) Nurse Perron indicated that

Plaintiff suffered from various symptoms, including: bipolar

syndrome with a history of episodic periods manifested by the

full symptomatic picture of both manic and depressive syndromes;

2 “The Fourth Edition of the Diagnostic and Statistical Manual of Mental

Disorders Text Revision (DSM-IV-TR) had a multiaxial scale, which assessed an

individual’s condition on five axes, the fifth of which cited the

individual’s GAF, which was for reporting a clinician’s judgment of an

individual’s overall level of functioning. American Psychiatric Association,

DSM-IV-TR 27, 32 (4th ed. text revision 2000). A GAF score of 51-60

indicated moderate difficulty in social, occupational, or school functioning.

Id. at 34. The current edition of the DSM (DSM-5), released in May 2013, no

longer uses the GAF scale. See www.dsm5.org (last visited 1/31/18).” (Stip.

¶ 7, n.4.)

appetite disturbance with weight change; decreased energy;

thoughts of suicide; feelings of guilt or worthlessness;

impairment in impulse control; mood disturbance; difficulty

thinking or concentrating; persistent disturbances of mood or

affect; substance dependence; and hyperactivity. (Id. at 425.)

Nurse Perron opined, based on his examination, that

Plaintiff had a number of restrictions regarding his ability to

do work-related activities on a day-to-day basis in a regular

work setting. (Id. at 426.) Regarding Plaintiff’s ability to

do “unskilled” work, Nurse Perron opined that Plaintiff could

perform satisfactorily in many areas, but was “seriously

limited” in “maintain[ing] regular attendance and be[ing]

punctual within customary, usually strict tolerances”;

“work[ing] in coordination with or proximity to others without

being unduly distracted”; “mak[ing] simple work-related

decisions”; and “complet[ing] a normal workday and workweek

without interruptions from psychologically based symptoms.”

(Id.) Seriously limited was defined as meaning that “[the]

patient has noticeable difficulty (e.g., distracted from job

activity) from 11 to 20 percent of the workday or work week.”

(Id.)3 Nurse Perron also opined that Plaintiff would be

3 Nurse Perron also noted restrictions in Plaintiff’s mental abilities and

aptitudes needed to do semiskilled and skilled work. (Id. at 427.) Nurse

Perron found Plaintiff would be “seriously limited” in “carry[ing] out

detailed instructions,” “set[ting] realistic goals or mak[ing] plans

“seriously limited” in “maintain[ing] socially appropriate

behavior.” (Id.)

Nurse Perron opined that Plaintiff does not have a low

IQ or reduced intellectual functioning. (Id.) Nurse Perron

opined that Plaintiff had “moderate” functional limitations in

“maintaining social functioning” and “maintaining concentration,

persistence, or pace,” and noted that Plaintiff had one or two

“episodes of decompensation within 12 month period, each of at

least two weeks duration.” (Id. at 428.) Nurse Perron further

opined that Plaintiff had “none-[to-]mild” restrictions in

activities of daily life. (Id.)

Nurse Perron opined that Plaintiff had a mental

disorder for at least two years that would result in such

marginal adjustment that even a minimal increase in mental

demands or change in the environment would cause him to

decompensate. (Id.) Nurse Perron further opined that Plaintiff

would be absent from work about two days a month, and that his

impairment would last at least twelve months. (Id. at 429.)4

Dr. Rameshwar endorsed Nurse Perron’s assessment by including

his stamp on the last page of the questionnaire. (Id.)

independently of others,” or “deal[ing] with stress of semiskilled and

skilled work.” (Id.)

4 As the parties noted in their stipulation, Nurse Perron said Plaintiff’s

impairments include alcohol and substance abuse, and that they contribute to

his limitations, but did not explain their actual impact. (Id.)

Standard of Review

Unsuccessful claimants for disability benefits may

bring an action in federal court seeking judicial review of the

Commissioner’s denial of their benefits. 42 U.S.C. §§ 405(g),

1383(c)(3) (“The final determination of the Commissioner of

Social Security . . . shall be subject to judicial review as

provided in section 405(g) of this title to the same extent as

the Commissioner’s final determinations under section 405 of

this title.”). 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. See Cage v. Comm’r, 692

F.3d 118, 122 (2d Cir. 2012). Rather, “‘[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 Act must be

liberally applied, for it is a remedial statute intended to

include not exclude.” Id. (quoting Cruz, 912 F.2d at 11).

Discussion

I. The Commissioner’s Five-Step Analysis of Disability Claims

The Supplemental Security Income program provides

benefits to aged, blind, and disabled individuals who meet

qualifying income, resource, and other criteria. 42 U.S.C. §§

1381 et seq. Benefits may not be paid unless the claimant meets

the program’s income and resource requirements. See id. §§

1382a, 1382b. Furthermore, and as is relevant here, the

claimant must establish that he qualifies as disabled within the

meaning of Title XVI of the Act. See id. §§ 1382c(a)(3)(A)-(B).

A claimant qualifies as disabled under the Act if he

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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A

claimant’s impairment, or combination of impairments, is not

considered disabling unless it is “of such severity that he is

not only unable to do his previous work but cannot, considering

his age, education, and work experience, engage in any other

kind of substantial gainful work which exists in the national

economy.” Id. § 1382c(a)(3)(B).

The Commissioner’s regulations establish a five-step

sequential evaluation process for determining whether a claimant

qualifies as disabled. See 20 C.F.R. § 416.920. The

Commissioner’s process is essentially as follows:

The first step of this process requires the [Commissioner]

to determine whether the claimant is presently employed.

If the claimant is not employed, the [Commissioner] then

determines whether the claimant has a “severe impairment”

that limits [his] capacity to work. If the claimant has

such an impairment, the [Commissioner] next considers

whether the claimant has an impairment that is listed in

Appendix 1 of the regulations. When the claimant has such

an impairment, the [Commissioner] will find the claimant

disabled. However, if the claimant does not have a listed

impairment, the [Commissioner] must determine, under the

fourth step, whether the claimant possesses the [RFC] to

perform [his] past relevant work. Finally, if the claimant

is unable to perform [his] past relevant work, the

[Commissioner] determines whether the claimant is capable

of performing any other work.

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Perez v.

Chater, 77 F.3d 41, 46 (2d Cir. 1996)).

The claimant bears the burden of proof on the first

four steps, while the Social Security Administration bears the

burden on the last step. Burgess, 537 F.3d at 128. “[B]ecause

a hearing on disability benefits is a nonadversarial proceeding,

[however,] the ALJ generally has an affirmative obligation to

develop the administrative record.” Id. (internal quotation

marks omitted). “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)).

II. The ALJ’s Application of the Five-Step Analysis

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by 20 C.F.R. §

416.971, the ALJ made the following determinations:

At step one, the ALJ found that Plaintiff had not

engaged in substantial gainful activity since August 19, 2013,

the application date. (Tr. at 21.)

At step two, the ALJ found that Plaintiff suffers from

the severe impairments of back impairment, status post-gunshot

wound, polysubstance abuse in remission, bipolar disorder,

depressive disorder, and anxiety disorder. (Id.)

At step three, the ALJ determined that from August 19,

2013, through the date of the hearing, Plaintiff did not have an

impairment or combination of impairments that meets or medically

equals one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1. (Id. at 21-23.) The ALJ, however, did

consider whether Plaintiff’s impairments meet Listing 1.04

(Disorders of the Spine) or Listing 12.04 (Depressive, Bipolar,

and Related Disorders). (Id.) In assessing whether Plaintiff’s

impairments meet Listing 12.04, the ALJ found, inter alia, that

Plaintiff had “moderate difficulties” with concentration,

persistence, or pace. (Id.)

At step four, the ALJ determined that Plaintiff has

the RFC to perform sedentary work, except that Plaintiff is

limited to performing simple and routine tasks and can have only

occasional contact with co-workers and the public. (Id. at 23-

26.) Based on Plaintiff’s RFC, the ALJ concluded that Plaintiff

could not perform his past relevant work as a fast food worker.

(Id. at 26.)

At step five, the ALJ found that – considering

Plaintiff’s age, education, work experience, and RFC – Plaintiff

could perform jobs which exist in significant numbers in the

national economy. (Id. at 26-27.) As such, the ALJ found

Plaintiff not disabled. (Id.)

III. The ALJ’s Error in Applying the Five-Step Analysis

Plaintiff argues the ALJ erred in considering his

application for Supplemental Security Income benefits. The

court agrees and finds that the ALJ: (1) did not properly

consider the medical evidence; (2) did not sufficiently develop

the record; and (3) did not account for Plaintiff’s moderate

non-exertional limitations in assessing Plaintiff’s RFC.

a. The ALJ Did Not Properly Consider the Medical Evidence

As noted above, the ALJ found that Plaintiff had the

RFC to perform sedentary work, except that Plaintiff was limited

to performing simple and routine tasks and could have only

occasional contact with coworkers and the public. (Id. at 23.)

In addressing Dr. McCormick’s opinion, the ALJ noted

that Plaintiff presented to Dr. McCormick complaining of

symptoms including, in relevant part, short-term memory deficits

and concentration difficulties. The ALJ found that, despite

these symptoms, Plaintiff reported he lived alone, “is

essentially independent with activities of daily living, can

take public transportation, and has friends.” (Id. at 24.) The

ALJ cited Dr. McCormick’s finding that Plaintiff has “only

mildly impaired attention and concentration, and only mildly

impaired recent and remote memory skills.” (Id.)

The ALJ noted Dr. McCormick’s opinion that Plaintiff

has mild limitations in his ability to relate adequately with

others and deal with stress. (Id.) The ALJ also cited Dr.

McCormick’s conclusion that Plaintiff can follow and understand

simple directions and instructions and perform simple tasks

independently. (Id.) The ALJ stated this part of Dr.

McCormick’s opinion was given “great weight as it is supported

by her mental status examination findings, the claimant’s

general independence with activities of daily living, his

ability to live alone, his ability to socialize, and [Nurse]

Perron’s mostly normal treatment notes.” (Id. at 24-25.)

The ALJ, however, had a different approach with

respect to the remainder of Dr. McCormick’s report. The ALJ

cited Dr. McCormick’s opinion that Plaintiff has moderate

limitations in maintaining attention and concentration,

performing complex tasks independently, and making appropriate

decisions. (Id. at 24.) The ALJ stated “[t]his portion of [Dr.

McCormick’s] opinion cannot be given great weight as it appears

based on [Plaintiff’s] subjective allegations rather than

objective findings.” (Id.) The ALJ also noted that “the

claimant’s general independence with activities of daily living,

his ability to live alone, his ability to socialize, and [Nurse]

Perron’s mostly normal treatment notes all suggest greater

functional abilities than those noted by Dr. McCormick.” (Id.)

After addressing Dr. McCormick’s opinion, the ALJ

addressed Dr. Kennedy-Walsh’s finding that Plaintiff has

moderate limitations, inter alia, in maintaining attention and

concentration for extended periods, and in sustaining an

ordinary routine. (Id. at 25.) The ALJ gave Dr. Kennedy-

Walsh’s opinion “little weight.” (Id. at 25.) The ALJ also

addressed Nurse Perron’s finding that Plaintiff has serious

limitations, inter alia, in maintaining concentration and

sustaining regular attendance. (Id.) The ALJ gave “little

weight” to Nurse Perron’s opinion. (Id. at 25-26.)

The court notes that there were three separate medical

source opinions in the file: those of the treating sources, Dr.

Rameshwar and Nurse Perron; those of the consultative examiner,

Dr. McCormick; and those of the State medical expert, Dr.

Kennedy-Walsh. All three found that Plaintiff would have

moderate difficulty in maintaining attention and concentration,

and would either have moderate difficulty in maintaining a

schedule or would “need help” to do so. (Id. at 105, 333, 426-

28.) Yet, the ALJ assigned little weight to the portions of Dr.

McCormick’s opinion which were consistent with the other

opinions and were uncontroverted by any qualified medical

source.

There is also no indication that the ALJ adequately

considered Dr. McCormick’s finding that, “with help,” Plaintiff

could maintain a schedule and learn complex tasks. That finding

is not addressed by the ALJ in any manner, despite the fact that

the other two experts testified that Plaintiff would struggle to

maintain a schedule, and that the vocational expert testified

that an inability to adhere to a schedule would preclude work.

(Id. at 25-26; 91-94.) (This issue is addressed again below.)

Moreover, the court is concerned with the ALJ’s

decision to credit only certain portions of Dr. McCormick’s

report. “Reviewing courts decry administrative ‘cherry picking’

of relevant evidence.” Younes v. Colvin, No. 1:14-CV-170

DNH/ESH, 2015 WL 1524417, at *8 (N.D.N.Y. Apr. 2, 2015). “This

term refers to crediting evidence that supports administrative

findings while ignoring conflicting evidence from the same

source.” Id. (citing Smith v. Bowen, 687 F. Supp. 902, 904

(S.D.N.Y. 1988)). “‘Cherry picking’ can indicate a serious

misreading of evidence, failure to comply with the requirement

that all evidence be taken into account, or both.” Genier v.

Astrue, 606 F.3d 46, 50 (2d Cir. 2010). Although “[t]here is no

absolute bar to crediting only portions of medical source

opinions,” “when doing so smacks of ‘cherry picking’ of evidence

supporting a finding while rejecting contrary evidence from the

same source, an [ALJ] must have a sound reason for weighting

portions of the same-source opinions differently.” Id.

Here, the court finds that the ALJ’s purported

explanation for his apparent cherry picking is insufficient to

explain his decision to discredit portions of Dr. McCormick’s

report. The ALJ notes only that the discredited portions of the

opinion “appear” to be based on Plaintiff’s subjective

statements, but does not explain the basis for this conclusion.

(See Tr. at 24.) Consequently, the court’s review is made

difficult, particularly as Dr. McCormick’s report appears to

contain at least some “objective” bases for the findings, for

instance, noting with respect to attention and concentration

that Plaintiff “was able to do counting and simple

calculations,” but “was not able to count backward by 3s from

20.” (Id. at 332.) And, as noted above, it is troubling that

the discredited portion of Dr. McCormick’s opinion is consistent

with the opinions of two other medical sources.

Furthermore, the ALJ’s explanation as to Plaintiff’s

purported general independence with activities of daily living,

ability to live alone, and ability to socialize is lacking.

Although the ALJ routinely cites to the claimant’s general

independence as a basis for rejecting certain findings, the

evidence he primarily cites is Dr. McCormick’s opinion (see id.

at 23), which appears to indicate that Plaintiff receives

assistance in his activities of daily living (see id. at 333).

Plaintiff’s testimony, which is closer in time to the ALJ’s

decision than Dr. McCormick’s assessment, and the function

report filled out, in part, by Plaintiff’s former landlord

contradict the ALJ’s finding. Both reflect that Plaintiff has

few, if any, friends and does not socialize; has limited ability

to maintain hygiene; and relies upon his former landlord or his

mother for assistance with basic activities of daily life. The

record also reflects that Plaintiff has regularly been involved

in altercations with both strangers and family members.

b. The ALJ Did Not Develop the Record as to Whether

Plaintiff Could Maintain a Schedule

Plaintiff also argues that the ALJ erred by failing to

develop the record as to Dr. McCormick’s opinion that Plaintiff

could maintain a schedule “with help,” without clarifying the

extent to which Plaintiff could actually maintain a schedule, or

what sort of help would be required. The court agrees.

“It is the rule in our circuit that ‘the ALJ, unlike a

judge in a trial, must [her]self affirmatively develop the

record’ in light of ‘the essentially non-adversarial nature of a

benefits proceeding.’” Pratts v. Chater, 94 F.3d 34, 38 (2d

Cir. 1996) (quoting Echevarria v. Secretary of HHS, 685 F.2d

751, 755 (2d Cir. 1982)). This duty “exists even when, as here,

the claimant is represented by counsel.” Id. If the claimant’s

medical record is inadequate, it is thus “the ALJ’s duty to seek

additional information from the [treating physician] sua

sponte.” Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998); see

also Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)

(explaining that “an ALJ cannot reject a treating physician’s

diagnosis without first attempting to fill any clear gaps in the

administrative record”).

In this instance, the ALJ did not seek clarification

from Dr. McCormick regarding her finding that Plaintiff could

maintain a schedule “with help.” Both other medical sources

described by the ALJ noted that Plaintiff would struggle to

maintain a schedule. Dr. Kennedy-Walsh opined Plaintiff would

have “moderate limitations” in maintaining a schedule. (Tr. at

105.) And Nurse Perron and Dr. Rameshwar opined that Plaintiff

would be “seriously limited” in maintaining regular attendance

and being punctual within customary tolerances, and, more

explicitly, found that Plaintiff would be expected to be absent

from work for 2 days per month. (Id. at 426, 429.)

Consideration of maintaining a schedule, including

attendance, was not adequately explained by the ALJ, as the

vocational expert testified that anything “[m]ore than one day a

month [of missed work due to medical reasons]” would be

considered excessive at the unskilled level. (Id. at 97.) Yet,

despite the lack of clarification from Dr. McCormick, and the

testimony of the other medical sources, the ALJ did not address

Plaintiff’s potential absences from work in his decision. In

light of this record, the court agrees with Plaintiff that the

ALJ should have sought clarification from Dr. McCormick as to

the extent to which she believed Plaintiff could maintain a

schedule, and what sort of “help” would be required to do so.

c. The ALJ Did Not Account for Plaintiff’s Moderate Non-

Exertional Limitations in His RFC

Plaintiff also argues the ALJ erred by making an RFC

determination and posing related hypotheticals to the vocational

expert which failed to expressly account for the moderate non-

exertional limitations set forth by Plaintiff’s medical sources,

namely, that Plaintiff had moderate limitations in maintaining

attention and concentration and in maintaining a regular

schedule. (See Pl. Mem., at 8-9.)

Plaintiff argues that, under the Second Circuit’s

holding in McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014), an

ALJ may not assume that a restriction to “simple” or “unskilled”

work is equivalent to, or per se incorporates, a limitation

relating specifically to “concentration, persistence, or pace.”

(See Pl. Mem., at 8-9 (arguing that McIntyre requires for the

concentration, persistence, or pace limitation to be otherwise

accounted for in the RFC).)

In McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014), a

claimant argued the ALJ erred by failing to explicitly include

her non-exertional (i.e., non-physical) limitations in his RFC

finding, posed a hypothetical question to the vocational expert

that was incomplete in that way, and then improperly relied on

the vocational expert’s testimony to conclude there were jobs in

the national economy that the claimant could perform. Id. at

151. The Second Circuit noted that, at step five, the ALJ must

determine whether a claimant can perform jobs which exist in the

national economy either by (a) applying the Medical Vocational

Guidelines or (b) adducing testimony of a vocational expert.

Id. “An ALJ may rely on a vocational expert’s testimony

regarding a hypothetical as long as there is substantial record

evidence to support the assumption[s] upon which the vocational

expert based his opinion and accurately reflect the limitations

and capabilities of the claimant involved.” Id. (internal

quotation marks and citations omitted).

The McIntyre panel noted that “[t]he hypothetical

presented to the vocational expert . . . closely tracked the

ALJ’s [RFC] assessment,” which “failed to mention explicitly

McIntyre’s non-exertional limitations.” Id. The hypothetical,

however, added a limitation to “simple, routine, low stress

tasks.” Id. Although the Second Circuit “ha[d] not

specifically decided whether an ALJ’s hypothetical question to a

vocational expert must account for limitations in concentration,

persistence, and pace,” its “case law is plain that ‘the

combined effect of a claimant’s impairments must be considered

in determining disability.’” Id. (quoting Dixon v. Shalala, 54

F.3d 1019, 1031 (2d Cir. 1995)). Consequently, “an ALJ’s

hypothetical should explicitly incorporate any limitations in

concentration, persistence, and pace.” Id.

The McIntyre court found the ALJ’s error to be

harmless. “[A]n ALJ’s failure to incorporate non-exertional

limitations in a hypothetical (that is otherwise supported by

evidence in the record) is harmless error if (1) ‘medical

evidence demonstrates that a claimant can engage in simple,

routine tasks or unskilled work despite limitations in

concentration, persistence, and pace,” and the challenged

hypothetical is limited “to include only unskilled work”; or (2)

the hypothetical ‘otherwise implicitly account[ed] for a

claimant's limitations in concentration, persistence, and

pace[.]’” Id. (quoting Winschel v. Comm’r of Soc. Sec., 631

F.3d 1176, 1180 (11th Cir. 2011)). The panel found that

substantial evidence demonstrated the claimant could engage in

“simple, routine, low stress tasks,” notwithstanding her

limitations in concentration, persistence and pace, and by

limiting the hypothetical to such tasks, the ALJ accounted for

the combined effect of the claimant’s impairments. Id. The

ALJ’s error was, therefore, found to be harmless. Id.

Here, as in McIntyre, the ALJ found that Plaintiff had

“moderate difficulties” in the domain of “concentration,

persistence, and pace,” but failed to include any such

limitations (at least explicitly) in the RFC determination.

(See id. at 22-26.) Moreover, as the Commissioner appears to

concede (see ECF No. 20, Commissioner’s Reply (“Plaintiff argues

that the ALJ needed to specify that Plaintiff had moderate

limitations in social functioning as well as in concentration,

persistence and pace in the hypothetical the ALJ posed to the

vocational expert at the hearing. The Second Circuit, however,

has no such requirement.”)), the ALJ failed to account for these

limitations in the hypothetical he posed to the vocational

expert (see Tr. at 90-99).

Defendant argues that, by restricting Plaintiff to

only simple work and occasional interaction with others, the

ALJ’s RFC “otherwise implicitly accounted for limitations

involving concentration, persistence, and pace.” (See Def.

Reply Mem., at 4.) The court acknowledges the Commissioner’s

argument that the ALJ found Plaintiff could engage in simple,

routine tasks and have only occasional contact with coworkers

and the public. (See Tr. at 23.)

All medical source opinions, however, indicate that

Plaintiff had moderate limitations in maintaining concentration

and attention and performing activities within a regular

schedule. (Id. at 105-106, 330-334, 424-429.) It is true that

Dr. McCormick opined that Plaintiff had no limitations in his

ability to follow and understand simple directions or to perform

simple tasks. (Id. at 333.) But her opinions do not clarify

whether Plaintiff could engage in such tasks on a sustained

basis, over the course of a workday, despite Plaintiff’s

limitations in maintaining concentration and attention, and the

fact that Plaintiff would need “help” adhering to a regular

schedule. (See id.)

Moreover, although the ALJ posed a hypothetical to the

vocational expert in which the hypothetical person would be “off

task 15% of the workday” (see id. at 92), the ALJ failed to

address that testimony in his decision. This omission appears

to require further explanation, as the vocational expert

testified that said the hypothetical individual would not be

able to sustain employment if he was off task more than 10%.

Because the ALJ specifically found Plaintiff would have moderate

limitations in concentration persistence and pace, he should

have made some provision in his RFC for time off task.

Moreover, the ALJ should have considered further whether

Plaintiff was limited in his ability to maintain a schedule.

Without the ALJ’s rationale on these important issues,

the court cannot conduct a meaningful review of the ALJ’s

decision and cannot conclude that his errors were harmless.

See, e.g., Matthews v. Comm. of Soc. Sec., No. 1:17-cv-00371-

MAT, 2018 WL 4356495, at *4 (W.D.N.Y. Sept. 13, 2018) (remanding

where ALJ failed to provide an adequate explanation of his

assessment of a medical opinion, thereby “depriving the Court of

the ability to perform a meaningful review”).

Conclusion

Federal regulations explicitly authorize a court, when

reviewing decisions of the Social Security Administration, to

order further proceedings when appropriate. 42 U.S.C. §§

405(g), 1383(c)(3) (“The 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.”). Remand is warranted where “‘there are

gaps in the administrative record or the ALJ has applied an

improper legal standard.’” 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 has determined that the ALJ

did not apply the law appropriately in this case and that

further explanation is necessary to clarify the ALJ’s rationale,

as set forth above. Accordingly, this action is remanded for

further proceedings consistent with this Memorandum and Order.

SO ORDERED.

Dated: Brooklyn, New York

April 22, 2020

/s/

Hon. Kiyo A. Matsumoto

United States District Judge