# Harris v. Commissioner of Social Security

> District Court, E.D. New York · April 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10304108

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10304108

## How later opinions describe it (automated extraction)

- explaining that “an ALJ cannot reject a treating physician’s diagnosis without first attempting to fill any clear gaps in the administrative record”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JUSTIN HARRIS,

Plaintiff,
MEMORANDUM AND ORDER
v.
17-cv-3867 (KAM)
COMMISSIONER OF SOCIAL SECURITY,

Defendant.
----------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304108. Public record. Not legal advice.