# Samaru v. Berryhill

> District Court, E.D. New York · June 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10304357

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 8, 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/10304357

## How later opinions describe it (automated extraction)

- finding that the assessment of the treating psychologist was the central piece of evidence in this case and the ALJ was obliged to ensure full development of the record before assigning that assessment “little weight”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X

RAVENDRA SAMARU,

Plaintiff,
MEMORANDUM & ORDER
-against-
18-cv-06321(KAM) (LB)
COMMISSIONER OF SOCIAL SECURITY;

Defendant.

----------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Pursuant to 42 U.S.C. § 405(g), Ravendra Samaru
(“plaintiff”) appeals the final decision of the Commissioner of
Social Security (“defendant”) which held that plaintiff was not
disabled within the meaning of the Social Security Act (“the
Act”) and, therefore, was not eligible for disability insurance
benefits under Title II of the Act or supplemental security
income benefits under Title XVI of the Act. (ECF No. 1,
Complaint (“Compl.”) at ¶ 1.) Plaintiff alleges that he is
disabled under the Act and is thus entitled to receive the
aforementioned benefits.
Before the court is plaintiff’s motion for judgment on
the pleadings seeking a finding of disability or a remand for
further administrative proceedings. (ECF Nos. 15 and 16)
Defendant’s cross-motion for judgment on the pleadings seeks to
confirm the Commissioner’s determination. (ECF Nos. 17 and 18).
For the reasons set forth below, plaintiff’s motion is GRANTED,
defendant’s cross-motion is DENIED, and the case is remanded for
further proceedings consistent with this Memorandum and Order.

BACKGROUND
a. Procedural History
On April 1, 2015, plaintiff Ravendra Samaru filed an
application for disability insurance benefits, as well as an
application for supplemental security income benefits. (ECF No.
21, Administrative Transcript (“Tr.”) at 59-60, 167-79, 190.)1
The date of alleged onset of plaintiff’s disability is January
1, 2014. (Tr. 12, 62, 168, 171.) Plaintiff claims he is
disabled as a result of his paranoid schizophrenia. (Tr. 33,
312.)
On July 15, 2015, the Social Security Administration
(“SSA”) denied both of plaintiff’s applications on the grounds

that he was not disabled within the meaning of the Act because
his “condition is not severe enough to keep [plaintiff] from
working.” (Tr. 75-80, 82.) On September 4, 2015, plaintiff,
via his authorized representative, Barbara D. Tilker, filed a
written request for a hearing before an Administrative Law Judge
(“ALJ”). (Tr. 86-87.) On July 25, 2017, plaintiff appeared and

1 The Certified Administrative Record, is available at ECF No. 21, ECF pp. 1-
475. “Tr.” refers to the correspondingly numbered page in the record.
testified before ALJ Lawrence Levey at the National Hearing
Center in Baltimore, Maryland. (Tr. 24-58.) Plaintiff appeared
and testified via videoconference, along with his attorney,

William Aronin, in the Jamaica, Queens Hearing Office. (Tr. 26,
160.) Vocational expert Deborah Vonduram also provided
testimony over the phone at the hearing. (Id.) By a decision
dated August 1, 2017, the ALJ found that plaintiff was not
disabled within the meaning of the Act and thus was not entitled
to benefits. (Tr. 12-20.)
On September 29, 2017, plaintiff appealed the ALJ’s
decision to the Appeals Council. (Tr. 161.) On September 6,
2018, the Appeals Council denied review of the decision,
rendering the ALJ’s decision final. (Tr. 1.) On November 7,
2018, plaintiff filed the instant action in federal court. (See
generally Compl.)
b. Relevant Facts

The parties filed a Joint Stipulation of Relevant
Facts on July 10, 2019, pursuant to Individual Motion Practice
Rule IV(C)(5). (ECF No. 20.) The court incorporates those
facts herein. Having incorporated the relevant facts, the court
shall address only the medical opinions and any other evidence
and facts specifically germane to the ALJ’s decision.
1. Non-Medical Evidence
Adult Function Report
In a function report dated May 26, 2015, completed by
plaintiff’s brother, Avienash Samaru, plaintiff’s brother
described plaintiff as “in bed all the time” and stated that he

“only gets up to eat, use the bathroom, and go to the store.”
(Tr. 205.) Mr. Avienash Samaru further reported that
plaintiff’s medication makes plaintiff “sleep a lot,” and that
before the onset of his disability, plaintiff had been a
“skilled construction worker with a family.” (Id.)
Additionally, he reported that plaintiff requires reminders for
his appointments and “important tasks” such as showering and
changing his clothing. (Tr. 206.) Plaintiff’s brother also
reported that plaintiff does not do any chores, and his mother
cooks for him. (Tr. 206-07.) Plaintiff’s brother further
reported that plaintiff can drive, go out alone, and go to
stores to purchase cigarettes and food. (Tr. 205, 207-08.)

Plaintiff can pay bills, count change, and handle a savings
account. (Tr. 208.) Though plaintiff plays video games, he no
longer plays basketball as he used to, “hardly socializes with
the family,” and no longer has the “same physical strength he
had due to his medications, and illness.” (Id.) The report
states that plaintiff becomes frustrated and “can not
concentrate for long periods of time, or focus on complex
issues.” (Tr. 211.) Further, plaintiff can follow spoken
instructions, but cannot follow written instructions. (Id.)
Lastly, plaintiff’s brother reported that plaintiff “cannot
remember things when he is frustrated” and needs constant
reminders. (Id.)

Hearing Testimony
At the July 25, 2017 hearing before ALJ Levey,
plaintiff testified that he worked previously as a warehouse
worker and in construction. (Tr. 32.) He stopped working in
2013, when he was diagnosed with schizophrenia, and developed a
lack of concentration, forgetfulness, and impatience. (Tr. 33.)
He was hospitalized twice in or about 2015 for “hearing voices,”
and experiencing hallucinations that somebody was out to kill
him. (Tr. 33, 34, 252.) Plaintiff testified that he was
“afraid that somebody was out to kill me, I was crying a lot.”
(Tr. 34.) Plaintiff reported hearing voices constantly, and
that it was like a “microphone turn[ed] on in my head.” (Id.)

He also described a hallucination involving a physical sensation
(“spikey thing[s] all over my back”). (Tr. 34-35.) Plaintiff
reported that he is currently under psychiatric treatment at the
Queens Hospital Center, where he sees Dr. Choudhury monthly, and
follows a medication regimen involving daily oral medication and
a monthly drug injection. (Tr. 35-36.) Plaintiff testified
that he still hears voices or “will see something that is not
there” sometimes, though his auditory and visual hallucinations
have decreased due to his medication. (Tr. 36-37, 41-42, 46.)
Plaintiff reported “difficulty concentrating and
remembering things” and that he forgets things like tea kettles
on the stove and his own phone number. (Tr. 36-37.) Plaintiff

reported that he is not permitted to use the stove at home.
(Tr. 37.) Plaintiff also stated that he sleeps “most of the
time,” approximately fifteen hours per day. (Tr. 38.) In 2013,
plaintiff tried to return to work but was laid off because he
was “not the same,” and his boss found he did not listen. (Tr.
39-40, 45-46.)
Plaintiff testified that he spends time with his two
children, then ages two and five, on weekends. (Tr. 43.)
Plaintiff takes public transportation to go to his doctor, and
he has not driven since 2014 except to move his brother’s car to
a new parking spot. (Tr. 44.)
Plaintiff testified that he tried to find a job in

June 2015 so that his wife would come back, but plaintiff’s
efforts to reconcile with his wife and find employment were
unavailing. (Tr. 45.) Plaintiff testified, “I really wanted –
I wanted to stay in my field of work which is construction . . .
. And that was something that I loved to do, I was doing since I
was 16 with my father because he taught me how – how to make a
living by doing his trade but it’s really . . . I’m really
moving slower than I thought I would. I really got to rest up
and I feel like I want to go home and go to bed.” (Tr. 45-46.)
When asked by the ALJ whether plaintiff thought he could do “an
easier job, something where you’re just at a table” or “stocking
shelves,” plaintiff ventured that he “probably could,” except

that he tired easily. (Tr. 47-48.) When asked about the
possible effects of plaintiff’s lack of concentration or his
drowsiness on his employment opportunities, the response was as
follows:
Q: All right. I’m glad you think so but like what
about your concentration issues? What about problems
with tiredness, do you think that would still cause an
issue for you?

A: Definitely, definitely. Sometimes I – sometimes I
feel so tired, man.2

Vocational Expert Testimony
At the hearing, Deborah Vonduram, the vocational
expert, testified that a hypothetical individual of plaintiff’s
age, education level, and work experience, with plaintiff’s
mental impairments and the possible side effects of prescribed
medications, could not perform plaintiff’s past work as a
warehouse packer (medium, unskilled work) and construction
worker (heavy, unskilled work). (Tr. 51.) Ms. Vonduram opined
that, with the ALJ’s assessed RFC, a hypothetical individual
with plaintiff’s limitations could work as a night cleaner (DOT
No. 358.687-010; SVP 1), crate liner (DOT No. 920.687-078; SVP

2 Tr. 47-48.
2), or electrode cleaner (DOT No. 729.687-014; SVP 1). (Tr.
52.) When the ALJ asked whether plaintiff’s “fatigue or
concentration” would be an issue, the vocational expert

responded that being “off-task 5% percent of the time or more on
a consistent basis,” or approximately “twenty-four minutes a
day,” or missing one or more days of work per month on a regular
basis, could jeopardize one’s employment for unskilled jobs.
(Tr. 53-55.) As the ALJ noted, and the vocational expert
confirmed, being off-task five percent of the workday would
jeopardize an unskilled worker’s job because unskilled workers
are highly “replaceable” and “[a]lmost anyone off the street can
do it[.]” (Tr. 55-56.) The vocational expert also averred that
needing repeated reminders would preclude work. (Tr. 54.)
2. Medical Evidence
a. Contemporaneous Medical Records

In an undated and unsigned intake assessment from
Queens Hospital Center, to which plaintiff was referred
following a one-month psychiatric hospitalization at Jamaica
Hospital,3 plaintiff stated, “I don’t like to complain a lot,”
and denied having issues to hospital staff. (Tr. 256.) The
report noted plaintiff’s two prior hospitalizations, where a
court-ordered medication override was needed due to plaintiff’s

3 The intake assessment is available at Tr. 256-259. The bottom margin
denotes that there were seven pages, while the record contains only pages one
through four.
refusal to receive treatment. (Id.) Plaintiff alleged that he
slept well, had a good appetite, and did not hear voices when he
took his medication. (Id.) However, plaintiff’s mother stated

that he was isolative, pacing, “not himself,” had a decreased
appetite, was not sleeping, and was unresponsive to questions.
(Tr. 256.)
On January 21, 2014, treatment notes from social
worker, Ms. Kane LCSW, at the Queens Hospital Center, noted that
plaintiff missed his appointment, and plaintiff’s wife stated
that it was because he was “very drowsy during the day.” (Tr.
261.) Plaintiff saw his psychiatrist Dr. Junnun Choudhury, MD,
(“Dr. Choudhury”), along with Ms. Kane, once per month. (Tr.
265, 271.) On February 18, 2014, Dr. Choudhury’s examined
plaintiff and found that he exhibited normal mood, affect,
speech, thought processes, memory, and orientation. (Tr. 268.)

Though the treatment notes are difficult to discern, they appear
to indicate that plaintiff denied having any side effects,
psychotic symptoms or a depressed mood during his monthly
appointments with Dr. Choudhury between February 2014 and May
2015. (See generally Tr. 265, 268, 273-300.)
Plaintiff continued to seek treatment from Dr.
Choudhury between April 8, 2016 and April 12, 2017. (Tr. 311-
475.) In his progress reports, Dr. Choudhury regularly notes
that plaintiff appears stable, does not exhibit overt psychotic
symptoms, and has normal speech, behavior, mood, affect, thought
processes, and that his cognition and memory are intact. (Tr.
314-15, 324-26, 340-43, 353-55, 366-69, 371-74, 381-83, 386-89,

397-400, 402-5, 410-13, 425-27, 437-39, 451-53.) Additionally,
plaintiff did not ever exhibit signs of suicidal or homicidal
ideation. (Id.) Plaintiff reported he was “fine,” or “okay”,
and Dr. Choudhury found his mood, behavior and thought processes
intact. (Id.)
The reports noted, however, that plaintiff forgot his
injections twice, on June 24, 2016, as well as August 9, 2016.
(Tr. 340, 353.) Additionally, on April 12, 2017, plaintiff’s
mother reported to Ms. Kane that he “does not wake up for most
things.” (Tr. 464.) Plaintiff also told Ms. Kane that it was
difficult for him to focus and follow directions. (Id.)
b. Medical Opinion Reports

Medical Opinion of Consultative Examiner, Dr. Georgiou, Psy.D
On June 16, 2015, Dr. Toula Georgiou, Psy.D, (“Dr.
Georgiou”) performed a psychiatric evaluation of plaintiff.
(Tr. 251-55.) In her examination, Dr. Georgiou noted that
plaintiff, a 31-year-old male, came to the evaluation by bus,
accompanied by his mother; was currently unemployed, and had
last worked in construction in 2012 or 2013, where he had worked
for three years before being laid off. (Tr. 252.)
Dr. Georgiou noted plaintiff’s psychiatric history
included two hospitalizations in 2013 for auditory and visual
hallucinations due to his schizophrenia. (Id.) Plaintiff was
hospitalized for six weeks and one month, respectively. (Id.)

Dr. Georgiou noted that plaintiff had been in treatment at
Queens Hospital Center since 2013, meeting once a month with a
therapist and once a month with a psychiatrist for his
schizophrenia, and that he was prescribed Haldol and Cogentin as
part of his treatment plan.4 (Id.)
Dr. Georgiou documented that plaintiff complained his
medication made him sleepy, reporting that plaintiff slept
fifteen to sixteen hours per day. (Id.) Plaintiff did not
report any psychiatric symptoms, or suicidal or homicidal
ideation, but plaintiff has a history of paranoia. (Id.) Dr.
Georgiou opined in her report that plaintiff was cooperative,

had an adequate manner of relating, and used expressive and
receptive language to communicate. (Tr. 253.) Dr. Georgiou
also stated that though plaintiff had a tense affect, his mood
was neutral, and he demonstrated coherent and goal directed
thought processes, and intact attention and concentration.
(Id.) However, Dr. Georgiou pronounced plaintiff’s memory

4 According to rxlist.com, Haldol is an injectable anti-psychotic medication
used to treat schizophrenia as well as to control tics and Tourette’s
Disorder; Cogentin is an injectable anti-Parkinson’s medication.
mildly impaired, and his intellectual functioning average to
below average. (Tr. 15, 253.)
Plaintiff reported to examiner that he gets along well
with family and goes out with friends. (Id.) Dr. Georgiou also

reported that plaintiff can take care of his own basic hygiene,
prepare simple meals, comply with a prescribed medication
regimen, clean, shop, drive, use public transportation, and
manage his own money. (Tr. 253-254.) However, Dr. Georgiou did
note that plaintiff may need some assistance managing his funds.
(Id.) Dr. Georgiou found that plaintiff did not evidence any
limitations in his ability to function daily, and that plaintiff
denied all psychiatric symptoms. (Tr. 254.) Plaintiff also
reported to the examiner that he had been smoking one joint of
marijuana daily, but was no longer using drugs as of two months
prior to the examination, and was consistently staying in
treatment. (Id.) Dr. Georgiou concluded that the results of

the examination were inconsistent with psychiatric problems that
would significantly interfere with plaintiff’s daily
functioning. (Id.) However, Dr. Georgiou diagnosed plaintiff
with “unspecific psychoses” and recommended that he continue
psychiatric treatment. (Id.)
Medical Opinion of Non-Examining State Psychological Consultant
Dr. Harding, Ph.D.
On July 15, 2015, Dr. T. Harding, Ph.D., (“Dr.
Harding”) a State agency psychological consultant, reviewed the
evidence in the record, and reported that plaintiff’s mental

impairment was not severe. (Tr. 64-65, 307-08.) Dr. Harding
noted that plaintiff had mild limitations in his daily living,
social functioning and concentration and pace. (Id.)
Medical Opinion of Treating Source Dr. Choudhury, MD

In a Medical Assessment of Ability to do Work Related
Activities (Mental) Questionnaire, dated April 12, 2017, Dr.
Choudhury opined that plaintiff had severe occupational and
social impairments. (Tr. 309-10.) From a scale of
unlimited/very good, good, fair, or poor to none, Dr. Choudhury
assessed plaintiff’s abilities to function in sixteen areas; in
fifteen of the sixteen areas, he scored plaintiff as having a
“fair” or “poor to no[]” ability. Dr. Choudhury noted that
these limitations had been present since January 2014, the
alleged onset date. (Tr. 310.) Specifically, Dr. Choudhury
opined that plaintiff had poor to no ability to follow work
rules; deal with work stresses; function independently; maintain
attention or concentration; understand, remember and carry out
complex job instructions; understand, remember and carry out
detailed but not complex job instructions; and demonstrate
reliability. (Tr. 309-10.) Further, Dr. Choudhury reported
that plaintiff had a “fair” ability to relate to co-workers;
deal with the public; use judgment, interact with supervisors;
understand, remember and carry out simple job instructions;
behave in an emotionally stable manner; and relate predictably
in social situations. (Id.) He further noted that plaintiff

had poor concentration and coping skills, forgets or is
unresponsive to questions, was unable to wake up on time, and
had disordered thoughts and limited memory. (Id.) In addition,
he noted that plaintiff had tried to go back to work but could
not focus and had to leave. (Id.) Dr. Choudhury noted that
plaintiff was fatigued, sometimes does not comprehend questions,
and does not follow instructions. (Id.) Lastly, he reported
that plaintiff cannot manage his own benefits. (Id.)
STANDARD OF REVIEW
Unsuccessful claimants for disability benefits under
the Act may bring an action in federal district court seeking

judicial review of the Commissioner's denial of their benefits
"within sixty days after the mailing . . . of notice of such
decision or within such further time as the Commissioner of
Social Security may allow." 42 U.S.C. §§ 405(g), 1383(c)(3). A
district court, reviewing the final determination of the
Commissioner, must determine whether the correct legal standards
were applied and whether substantial evidence supports the
decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.
1998).
A district court may set aside the Commissioner's
decision only if the factual findings are not supported by
substantial evidence or if the decision is based on legal error.
Burgess, 537 F.3d at 127. "Substantial evidence is 'more than a

mere scintilla," and must be relevant evidence that a reasonable
mind would accept as adequate to support a conclusion. Halloran
v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson
v. Perales, 420 U.S. 389, 401 (1971)). 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).
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). The reviewing court does not have the authority
to conduct a de novo review, and may not substitute its own

judgment for that of the ALJ, even when it might have
justifiably reached a different result. Cage v. Coim'r, 692
F.3d 118, 122 (2d Cir. 2012).
DISCUSSION
a. Five-Step Analysis for Disability Claims
To receive disability benefits, claimants must be
“disabled” within the meaning of the Act. See 42 U.S.C. §§
423(a),(d). A claimant is disabled under the Act when she is
unable to “engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A); see also Shaw v. Chater,
221 F.3d 126, 131–32 (2d Cir. 2000)). The impairment must be of
“such severity” that the claimant is unable to do her previous
work or engage in any other kind of substantial gainful work.
42 U.S.C. § 423(d)(2)(A).
“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)).
Pursuant to regulations promulgated by the
Commissioner, a five-step sequential evaluation process is used
to determine whether the claimant’s condition meets the Act’s
definition of disability. See 20 C.F.R. § 404.1520. This
sequential process is essentially as follows:
[I]f the Commissioner determines (1) that the claimant
is not working, (2) that he has a ‘severe impairment,’
(3) that the impairment is not one [listed in Appendix
1 of the regulations] that conclusively requires a
determination of disability, and (4) that the claimant
is not capable of continuing in his prior type of work,
the Commissioner must find him disabled if (5) there is
not another type of work the claimant can do.

Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhart, 335
F.3d 99, 106 (2d Cir. 2003) (internal quotation marks omitted));
see also 20 C.F.R. § 404.152(a)(4). If, at any of the
previously mentioned steps, the answer is “no,” then the
analysis stops and the ALJ must find claimant not disabled under
the Act. During this five-step process, the Commissioner must
consider whether “the combined effect of any such impairment . .
. would be of sufficient severity” to establish eligibility for
Social Security benefits. 20 C.F.R. § 404.1523. Further, if
the Commissioner does find a combination of impairments, the
combined impact of the impairments, including those that are not
severe (as defined by the regulations), will be considered in
the determination process. 20 C.F.R. § 416.945(a)(2).
In steps one through four of the sequential five-step
framework, the claimant bears the “general burden of proving . .
. disability.” Burgess, 537 F.3d at 128. In step five, the
burden shifts from the claimant to the Commissioner, requiring
that the Commissioner show that, in light of the claimant’s RFC,
age, education, and work experience, the claimant is “able to
engage in gainful employment within the national economy.”
Sobolewski v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).
b. The ALJ’s Disability Determination
Using the five-step sequential process to determine
whether a claimant is disabled as mandated by 20 C.F.R. §

416.971, the ALJ determined, at step one, that plaintiff had not
engaged in substantial gainful activity since January 1, 2014,
the alleged onset date. (Tr. 14; see 20 C.F.R. § 404.1571.)
At step two, the ALJ found that plaintiff suffered
from the severe impairment of schizophrenia because it “causes
more than minimal limitations on his ability to undertake basic
work activities.” (Tr. 14; See 20 C.F.R. § 404.1520(c).)
At step three, the ALJ found that plaintiff’s mental
impairment did not meet or medically equal the medical severity
of the listed impairments under 20 C.F.R. Part 404, Subpart P,
Appendix 1, Listing 12.03.5 The ALJ discussed at length that the
plaintiff had not met the “paragraph B” mental functional

analysis criteria. As the ALJ noted, to satisfy the “paragraph
B” listing, a mental impairment must result in at least one
extreme or two marked limitations of functioning in:
understanding, remembering or applying information; interacting
with others; concentrating, persisting or maintaining pace; or
adapting or managing themselves. (Tr. 15; 20 C.F.R.
404.1520(d), 404.1525, 404.1526.) Citing Dr. Georgiou’s

5 To meet Listing 12.03, claimant must satisfy the requirements of Paragraphs
A and B of the listing; or alternatively, A and C. 20 C.F.R. Part 404,
Subpart P, Appendix 1, Listing 12.03. (Def. Br. 6 n.2.)
opinion, the ALJ found that plaintiff has mild limitations in
understanding, remembering or applying information; and was only
moderately limited with regards to interacting with others;

concentrating, persisting or maintaining pace; or adapting or
managing himself. (Tr. 15-16.) Because the ALJ found that
plaintiff’s mental impairment did not cause at least two
“marked” limitations or one “extreme” limitation, the “paragraph
B” criteria were not met. (Tr. 15.) The ALJ also determined
that the “paragraph C” criteria were not met because “there is
no objective evidence to suggest that [plaintiff] has minimal
capacity to adapt to changes in his environment or to demands
that are not already a part of his daily life.” (Tr. 16.)
At step four, the ALJ determined that plaintiff has
the residual functional capacity (“RFC”) to perform a full range
of work at all exertional levels with a few non-exertional

limitations. (Tr. 16-17.) Due to plaintiff’s mental
impairment, the ALJ found plaintiff is limited to performing
simple, routine, repetitive tasks, in a work environment free of
fast-paced production requirements, with only simple few work
related decisions, few, if any, changes to the workplace and
only occasional interpersonal interaction with members of the
general public, coworkers and supervisors. (Id.) Though the ALJ
found that plaintiff’s medically determinable impairment “could
reasonably be expected to cause certain of the alleged symptoms
. . . [plaintiff’s] statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence

in the record[.]” (Tr. 17.)
In arriving at this RFC, the ALJ assigned “some
weight” to the opinion of the psychological consultative
examiner, Dr. Georgiou, finding her conclusions were internally
and externally “consistent with [the] objective findings.” (Tr.
17.) The ALJ ultimately found, however, that plaintiff was
“somewhat more limited” than would appear to be the case from
Dr. Georgiou’s report, explaining, without reference to medical
evidence, that he gave plaintiff the “benefit of the doubt” in
his determination. (Tr. 17.) Similarly, the ALJ also assigned
“some weight” to the non-consulting state examiner, Dr. Harding,
but noted that he again gave plaintiff the “benefit of the

doubt” and found that plaintiff “may have somewhat greater
impairment-related limitations.” (Tr. 17.) The ALJ gave
“little weight” to the opinion of the treating provider, Dr.
Choudhury, finding his opinion wholly unsupported by the
contemporaneous medical records. (Tr. 18.) The ALJ also noted,
citing authority from other circuits, that Dr. Choudhury’s
questionnaire was entitled to less weight because it was a
checklist form report.
The ALJ accepted the vocational expert’s testimony
that an individual with plaintiff’s RFC would be unable to
perform the work of a warehouse worker or construction worker

and concluded that plaintiff was not able to return to his past
relevant work. (Tr. 18.)
Lastly, at step five, the ALJ found that the plaintiff
was capable of performing light work available in the national
economy such as a night cleaner, crate liner, and electrode
cleaner. (Tr. 19.) Thus, ALJ Levey concluded that plaintiff
was not disabled within the meaning of the Act. (Tr. 19.)
c. The RFC is Not Supported by Medical Opinion Evidence
i. The ALJ did not adequately assess the Paragraph B
criteria under listing 12.03.

Plaintiff asserts that the ALJ erred in his step three
determination that plaintiff’s impairment did not meet or
medically equal Paragraph B, the functional criteria under §
12.03, the listing for schizophrenia and other psychotic
disorders. (ECF No. 16, Plaintiff’s Brief, (“Pl. Br.”) 3-8.)
Under 20 C.F.R. § Pt. 404, Subpt. P, App’x 1, § 12.03(B), a
claimant’s functional limitations are assessed and labeled as
“none, mild, moderate, marked, [or] extreme”. 20 C.F.R. §
404.1520a (4). To meet the requirements of Paragraph B,
claimant must have either one “extreme” or two “marked”
limitations in the following functional areas: understanding,
remembering, and applying information; interacting with others;
concentrating, persisting or maintaining pace; or adapting or
managing oneself. See 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526. See Veley v. Saul, 18-CV-269, 2019 WL 5078204, at *2

(W.D.N.Y. Oct. 10, 2019) (remanding for ALJ’s failure to address
listing 12.03 regarding claimant’s schizophrenia).
Under the social security regulations, a “marked”
limitation is a seriously limited ability to function
independently, appropriately, effectively and on a sustained
basis, whereas an “extreme” limitation is a complete inability
to function. 20 C.F.R. § Pt. 404, Subp. P, App’x 1, §
12.00A(2)(b); § 404.1520a(c)(2). A “moderate” limitation means
that the claimant’s functioning in an area is “fair.” 20 C.F.R.
Part 404, Subpart P, App’x 1, §12.00(F)(2)(c).
Plaintiff asserts that he suffers from marked

limitations in concentrating, persisting or maintaining pace,
and adapting or managing himself, and the ALJ incorrectly
concluded he was only moderately limited.6 (Pl. Br. 3.)
Plaintiff also asserts that the ALJ should have relied on the
medical opinion of his treating providers. (Id. at 7-10.)
Defendant contends that the ALJ’s findings were “reasonably
determined” and well-supported by the medical opinion evidence.

6 Because plaintiff does not contend that the ALJ’s determinations regarding
his ability to understand, remember or apply information, or interact with
others, were incorrect, the court does not address those findings.
(ECF No. 18, Defendant’s Brief (“Def. Br.”) 5-9.) For the
reasons set forth below, the court finds that the ALJ committed
legal error and remands for the purpose of reevaluating all the

evidence in the record.
Plaintiff asserts that the ALJ’s decision was improper
because no medical professional evaluated plaintiff’s
performance in all four functional areas under Paragraph B.
(Pl. Br. 4.) The court respectfully disagrees with plaintiff’s
assertion, insofar as the ALJ specifically considered the
medical opinion evidence regarding plaintiff’s limitations in
the four areas. (Tr. 15-17, 307-10.) Nevertheless, because
there is evidence in the record – including Dr. Choudhury’s
medical assessment (Tr. 309-10) as well as non-medical evidence
- that buttresses plaintiff’s contentions that he has more than
moderate limitations in his functional capacities, which

evidence was not adequately addressed in the ALJ’s decision, the
court finds that the ALJ’s decision is not supported by
substantial evidence.
1. Failure to evaluate Paragraph B criteria under listing
12.03

a. Concentration, Persistence, and Maintaining Pace
Under the Commissioner’s regulations, the functional
capacity of concentrating, persisting, and maintaining pace is
outlined as follows:
This area of mental functioning refers to the
abilities to focus attention on work activities and
stay on task at a sustained rate. Examples include:
initiating and performing a task that you understand
and know how to do; working at an appropriate and
consistent pace; completing tasks in a timely manner;
ignoring or avoiding distractions while working;
changing activities or work settings without being
disruptive; working close to or with others without
interrupting or distracting them; sustaining an
ordinary routine and regular attendance at work; and
working a full day without needing more than the
allotted number or length of rest periods during the
day.

20 C.F.R. Part 404, Subpart P, App’x 1, § 12.00(E)(3).
In finding that plaintiff was only moderately limited
in this domain, the ALJ relied on the contemporaneous medical
records from Queens Hospital Center, as well as the reports of
Dr. Harding and Dr. Georgiou, to which the ALJ assigned “some
weight.” (Tr. 17.) The ALJ noted that plaintiff did not report
any side effects of his medication to his treating providers.
(Tr. 15.) Notably, the ALJ rejected the medical questionnaire
of Dr. Choudhury and Ms. Kane, which reported that plaintiff
suffered from poor concentration and medication-related fatigue.
(Id.) The ALJ failed to address various other record evidence
substantiating plaintiff’s limitations, as set forth below.
(Tr. 15, 253-254, 309-10.) Because there was ample evidence in
the record that plaintiff has more than a moderate limitation in
his capacity to concentrate, persist, and maintain pace, which
was not adequately addressed in the ALJ’s decision, the court
finds that the ALJ’s decision is not supported by substantial
evidence. On remand, the court respectfully directs the ALJ to
give due and adequate consideration to the entire record and

provide adequate explanations for his findings.
It is well-established that an ALJ may not cherry-pick
factual evidence that is refuted by other contrary evidence in
the record. Genier v. Astrue, 606 F.3d 46, 50 (2d Cir. 2010).
“While the ALJ is not obligated to ‘reconcile explicitly
‘every conflicting shred of medical testimony,’ he cannot simply
. . . choose evidence in the record that supports his
conclusions.” Gecevic v. Secretary of Health & Human Servs.,
882 F. Supp. 278, 286 (E.D.N.Y. 1995) (quoting Fiorello v.
Heckler, 725 F.2d 174, 176 (2d Cir. 1983)). Montanez v.
Berryhill, 334 F. Supp. 3d 562, 564 (W.D.N.Y. 2018).
Here, the ALJ failed to consider that plaintiff attempted to

return to his job, and was fired, due to his “inability to
listen,” (Pl. Br. at 4; Tr. 40, 310), and missed taking
prescribed injections on multiple occasions because he “forgot.”
(Tr. 340, 353.)
The ALJ also appears not to have considered
plaintiff’s function report, which was filled out by plaintiff’s
brother, and supports Dr. Choudhury and Ms. Kane’s joint
assessment that plaintiff had poor concentration. The function
report states that plaintiff slept “all day” due to his
medication’s side effects, had to be reminded of doctor visits
and of “all important tasks, including taking showers and
changing his clothing,” and could not follow spoken

instructions. (Tr. 205-06, 211, 309-10.) Further, plaintiff
testified before the ALJ that, since his 2013 schizophrenia
diagnosis, he has been unable to continue working due to “lack
of concentration, patience, forgetting stuff. People said they
tried to talk to me and I wouldn’t listen.” (Tr. 33.)
Additionally, plaintiff complained to Dr. Georgiou of regularly
sleeping fifteen hours per day, (Tr. 252), and skipped
appointments due to his being very “drowsy.” (Tr. 261, 281.)
During an appointment with Ms. Kane, plaintiff’s mother reported
that he “does not wake up on time for most things.” (Tr. 464.)
These facts overwhelmingly indicate that plaintiff would require
remarkable “rest periods” that would preclude his functional

capacity of being able to “work a full day.” 20 C.F.R. Part
404, Subpart P, App’x 1, § 12.00(E)(3). Based on the above, the
court finds that the ALJ’s finding regarding plaintiff’s
capacity to concentrate, persist, and maintain pace is not
supported by substantial evidence.
b. Adapting and Managing Oneself
Under the Commissioner’s regulations, the domain of
adapting or managing oneself is defined as follows:
This area of mental functioning refers to the
abilities to regulate emotions, control behavior, and
maintain well-being in a work setting. Examples
include: responding to demands; adapting to changes;
managing your psychologically based symptoms;
distinguishing between acceptable and unacceptable
work performance; setting realistic goals; making
plans for yourself independently of others;
maintaining personal hygiene and attire appropriate
to a work setting; and being aware of normal hazards
and taking appropriate precautions. These examples
illustrate the nature of this area of mental
functioning.
20 C.F.R. Part 404, Subpart P, App’x 1, § 12.00(E)(4).
In regard to adapting and managing himself, the ALJ
found that plaintiff was only moderately limited. (Tr. 15.)
The ALJ deferred greatly to Dr. Georgiou’s consultative report,
which stated that plaintiff could attend to his personal
hygiene, prepare simple meals, clean, drive, and use public
transportation. (Tr. 253-54.) The ALJ did not credit
plaintiff’s own statements complaining that he slept most of the
day (Tr. 253) or the function report, which described him as
requiring reminders to attend appointments and care for his
personal hygiene. (Tr. 206.) The ALJ also did not address the
fact that the report also stated plaintiff’s mother prepared
food for him and did his chores. (Tr. 206.) The ALJ assigned
“little weight” to Dr. Choudhury’s report, which noted that
plaintiff was fired when he tried to go back to work, forgets or
is otherwise unresponsive to questions, and has disordered
thoughts and limited memory, all of which are salient to
plaintiff’s ability to adapt or manage himself. (Tr. 309-10.)
Dr. Georgiou’s examination report, to which the ALJ

deferred, only briefly noted that plaintiff did not suffer from
impairments in his daily functioning, and did not even mention
plaintiff’s work-related functionality, i.e. plaintiff’s ability
to “function independently, appropriately, effectively, and on a
sustained basis” at work. (Tr. 309-10; 20 C.F.R. §
404.1520a(c)(2).) The court agrees with plaintiff’s assertion
that it was not apparent from the record or Dr. Georgiou’s
report that plaintiff’s ability to adapt or maintain himself at
work was fairly determined because the report only discussed
plaintiff’s daily functioning. (Pl. Br. at 6.) See Newson v.
Comm’r of Soc. Sec., 17-cv-2918 (FB) 2019 WL 6173400, at *2n.1
(E.D.N.Y. Nov. 20, 2019) (quoting Bjornson v. Astrue, 671 F.3d

640, 647 (7th Cir. 2012) (“The critical differences between
activities of daily living and activities in a full-time job are
that a person has more flexibility in scheduling the former than
the latter, can get help..., and is not held to a minimum
standard of performance, as she would be by an employer.”)).
The court further finds that the ALJ improperly supplemented Dr.
Georgiou’s report with his own “lay opinion” regarding
plaintiff’s ability to adapt and manage himself in a work
setting.
The ALJ noted that plaintiff asserted that “his
medication causes significant fatigue, he spends most of the day
sleeping, and he has difficulty with concentration and memory.”

(Tr. 16.) The ALJ, however, disregarded plaintiff’s testimony
as to his fatigue and difficulties with concentration and
memory, due to plaintiff’s other testimony that his medication
eliminated his visual hallucinations and reduced his auditory
hallucinations, that he uses public transportation, and could
“probably do his past work” except for the fact that he tires
easily. (Tr. 16.) The ALJ also relied on the plaintiff’s daily
activities which the ALJ argued were “inconsistent with the
degree of limitation alleged” in determining the RFC. (Def. Br.
15; Tr. 15.) The ALJ stated the range of daily activities
reported by plaintiff included: “regular contact with friends,
seeing his children three times weekly, cooking simple meals,

and going out with his family.” (Tr. 17.)
The ALJ can exercise his discretion in choosing
whether to accept plaintiff’s subjective statements. Calabrese
v. Astrue, 358 F. App’x 274, 277 (2d Cir. 2009) (summary order)
(“[W]here the ALJ’s decision to discredit a claimant’s
subjective complaints is supported by substantial evidence, [the
court] must defer to his findings.”) “[I]f the ALJ rejects
plaintiff’s testimony after considering the objective medical
evidence and any other factors deemed relevant, he must explain
that decision with sufficient specificity to permit a reviewing
court to decide whether there are legitimate reasons for the
ALJ’s disbelief.” Fernandez v. Astrue, No. 11-CV-3896 (DLI),

2013 WL 1291284, at *18 (E.D.N.Y. Mar. 28, 2013) (internal
citation omitted). The ALJ failed to do so here.
The ALJ erred in rejecting portions of plaintiff’s
testimony merely because he found they were unsupported by the
objective medical evidence. Hudson v. Berryhill, No. 17-CV-463
(MAT), 2018 WL 4550310, at *6 (W.D.N.Y. Sept. 21,
2018) (internal quotation marks and citation omitted) (finding
rejection of “claimant’s statements about the intensity and
persistence of [his] pain or other symptoms or about the effect
[his] symptoms have on [his] ability to work solely because the
available objective evidence does not substantiate the
claimant’s statements” improper). Further, the court notes that

plaintiff’s testimony is generally consistent with the
significant limitations noted by his treating physician, Dr.
Choudhury. Specifically, plaintiff testified that he saw his
children “on the weekend” and “most of the time they go to the
playground with my mother or father.” (Tr. 43.) Plaintiff also
testified that he goes out to eat “if my mother is going to take
me out.” (Tr. 43.) Additionally, plaintiff testified he does
not go out with friends, though he used to before he was
diagnosed. (Id.)
Further compounding the legal error, the ALJ appears
to have credited plaintiff’s denial of symptoms. (Pl. Br. 12-
13.) The court finds that the ALJ’s reliance on certain,

selected statements from plaintiff’s treatment records is not
supported by substantial evidence and the record as a whole;
thus, the court remands and respectfully directs the ALJ, on
remand, to reconcile plaintiff’s denial of symptoms with the
record.
As noted in plaintiff’s intake assessment with Queens
Hospital Center, plaintiff is a “poor historian” of his medical
history, and his mother was called upon to provide information
regarding plaintiff’s history of mental illness and psychiatric
treatment, including hospitalization. (Tr. 256.) This is
consistent with Dr. Choudhury’s finding that plaintiff has
disordered thoughts and limited memory. (Tr. 309-10.) Further,

in the intake assessment, plaintiff remarked, “I don’t like to
complain a lot,” and denied the presence of any psychotic
symptoms, whereas his wife reported that plaintiff was “hearing
voices,” and his mother reported that he was isolative, not
sleeping and unresponsive to questions. (Pl. Br. at 12; Tr.
256.) Further, the ALJ did not examine the fact that plaintiff
necessitated a court-ordered medication override during one of
his hospitalizations due to his refusal to take medication.
(Pl. Br. at 12; Tr. 256.) In light of the foregoing evidence
regarding plaintiff’s history of denying or minimizing
psychiatric symptoms, where they clearly exist and/or are
corroborated by plaintiff’s family members or physicians, the

ALJ should have evaluated and explained such conflicting
evidence.
On remand, the court respectfully orders the ALJ to
properly evaluate all of the evidence and, if necessary, request
an additional examination or clarification from the consultative
examiner. Mattioli, No. 17-CV-1409 (WIG), 2018 WL 5669163, at
*4 (D. Conn. Nov. 1, 2018).
2. The ALJ improperly discounted Dr. Choudhury’s opinion

Plaintiff asserts that the questionnaire completed by
his treating source, Dr. Choudhury, supports a finding that
plaintiff met the Paragraph B criteria, and plaintiff disputes
the ALJ’s discounting of the treating source’s opinion. (Pl.
Br. 8.) The ALJ declined to give controlling weight to Dr.
Choudhury’s opinion, in part because it was presented in a form
report. (Tr. 18.) For the reasons set forth below, the court
finds the ALJ incorrectly concluded that Dr. Choudhury’s opinion
was not entitled to controlling weight.
Under the treating physician rule, “‘the opinion of a
claimant's treating physician as to the nature and severity of
the impairment is given ‘controlling weight’ so long as it is
‘well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in the case record.’”7 Greek v. Colvin,
802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008)); see also 20 C.F.R. §§

404.1527(c)(2). If the ALJ does not find a treating source's
opinion is entitled to controlling weight, the ALJ must consider
how much weight to give the opinion, using factors including:
(i) the frequency of examination and the length, nature and
extent of the treatment relationship; (ii) the amount of medical
evidence in support of the treating physician's opinion; (iii)
the consistency of the opinion with the record as a whole; and
(iv) whether the opinion is from a specialist. Estrella v.
Berryhill, 925 F.3d 90, 95 (2d. Cir. 2019) (quoting Burgess,
537 F.3d at 128); see also 20 C.F.R. § 404.1527(c)(2).
Additionally, the Commissioner must always provide

good reasons for why the treating provider’s opinion was not
accorded substantial weight. Cervini v. Saul, 17-CV-2128 (JMA)
2020 WL 2615929 at *5 (E.D.N.Y. May 21, 2020) (citing Schaal,
134 F.3d at 501 (2d Cir. 1998)). “The failure to provide ‘good
reasons for not crediting the opinion of a claimant's treating
physician is a ground for remand.’” Greek, 802 F.3d at 375

7Because plaintiff’s application for disability and disability insurance
benefits was filed before March 27, 2017, the recent changes reflected in
C.F.R. § 404.1520c do not apply, and under C.F.R. § 404.1527(a)(2)(c), the
treating source’s opinion is generally assigned added or possibly controlling
weight.
(quoting Burgess, 537 F.3d at 129-30). The ALJ’s decision need
not explicitly discuss the factors set forth in § 404.1527(c)(2)
as long as good reasons are given to disregard the rule.
Crowell v. Comm'r of Soc. Sec., 705 F. App'x 34, 35 (2d Cir.

2017) (“While the ALJ did not explicitly discuss the treating
physician rule, he nonetheless stated that [the physician’s]
opinion ... was contradictory to the rest of the record
evidence.”); Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir.
2013) (internal citations omitted).
The medical opinion of Dr. Choudhury, as the treating
physician, must be “analyzed according to the treating physician
rule.” Jackson v. Colvin, 14-cv-00055 (MAT) 2016 WL 1578748 at
*4 (W.D.N.Y. Apr. 20, 2016) (remanding for ALJ’s failure to
apply treating physician rule to all three of the treating
physician’s opinions). Though ALJ Levey credited the findings

contained within Dr. Choudhury’s contemporaneous medical
records, (see Tr. 17-18, 311-475), he gave “little weight” to
Dr. Choudhury’s form report. (Tr. 18, 309-10.) Defendant
contends that the ALJ considered Dr. Choudhury’s report and
provided good reasons for not permitting the report the
prevailing weight, namely that his opinion was not supported by
the treatment records. (Def. Br. at 8.) The court disagrees.
The ALJ explained, in his decision, that Dr.
Choudhury’s form report contradicted plaintiff’s hearing
testimony and the progress reports. (Tr. 18.) However, the ALJ
did not expressly consider the other Burgess factors in
according so “little weight” to the report, such as the

frequency, length, nature or extent of plaintiff’s years-long
treating relationship with Dr. Choudhury and Ms. Kane. Tammy H.
v. Comm’r of Soc. Sec., 18-CV-851 (ATB) 2019 WL 4142639 at *9
(N.D.N.Y. Aug. 30, 2019). Upon a review of the record, the
court finds the ALJ improperly denied controlling weight to Dr.
Choudhury’s form report, which found that plaintiff was
significantly limited in his occupational, performance, and
personal-social abilities. Among other areas, Dr. Choudhury
found that plaintiff had a fair or poor ability to interact with
supervisors and the public, deal with work stresses, function
independently, maintain attention/concentration, understand,
remember and carry out job instructions, and demonstrate

reliability. (Tr. 309-10.) The form report was supported by
other evidence on the record such as the function report filled
out by plaintiff’s brother, as well as plaintiff’s hearing
testimony, and should have been accorded greater weight under
the Burgess factors. (Tr. 204-223, 33-34, 309-10.)
In addition, though the ALJ correctly noted that form
reports are generally disfavored within the Second Circuit,
Klodzinski v. Astrue, 274 F. App’x 72, 73 (2d Cir. 2008)
(summary order), courts within this circuit have held that a
checklist form that provides more detail than checked-off boxes
is entitled to greater weight under the regulations. See, e.g.,
Brady v. Comm’r of Soc. Sec., 18-cv-01340, 2020 WL 613935 at *5

(W.D.N.Y. Feb. 10, 2020) (a form that “provided more narrative
and detail on the form than just checkboxes could be entitled to
more weight”); McGee v. Comm’r, 18-CV-448, 2019 WL 3450964, at
*5 (W.D.N.Y. Jul. 21, 2019) (reliance on the treating
physician’s form report would have been justified because it was
supported by evidence in the record and accompanied by a note);
20 C.F.R. §§ 404.1527, 416.927(c)(3) (noting that a medical
opinion is properly entitled to less weight when it lacks a
supporting explanation, such as a checklist form). Here, the
ALJ would have been justified in assigning greater weight to Dr.
Choudhury’s form report, which went beyond a mere checklist, but
actually contained supplemental handwritten notes that further
clarified plaintiff’s functional limitations. (Tr. 309-10.)

Further, given the ALJ’s finding that Dr. Choudhury's
opinion was internally inconsistent with his treatment notes
and/or inconsistent with other evidence in the record, the ALJ
should have explained his finding and re-contacted Dr. Choudhury
to further develop or reconcile the record. Sweet v. Astrue, 32
F. Supp. 3d 303, 315 (N.D.N.Y. 2012) (finding that the
assessment of the treating psychologist was the central piece of
evidence in this case and the ALJ was obliged to ensure full
development of the record before assigning that assessment
“little weight”); 20 C.F.R. § 404.1520b et seq. As the relevant
regulations specify, where the record is either incomplete or

inconsistent, additional actions “may need” to be taken,
including “recontact[ing the] medical source”; “request[ing]
additional existing evidence”; “ask[ing claimant] to undergo a
consultative examination”; or “ask[ing claimant] or others for
more information.” 20 C.F.R. § 404.1520b(b)(2); see also
Pettaway v. Colvin, No. 12-CV-2914 (NGG), 2014 WL 2526617, at *5
(E.D.N.Y. June 4, 2014) (citation and internal quotation marks
omitted). Moreover, “the ALJ’s duty to develop the record is
enhanced when the disability in question is a psychiatric
impairment.” Champion v. Berryhill, No. 16-CV-4723, 2017 WL
4404473, at *16 (S.D.N.Y. Sept. 14, 2017) (internal citations
omitted). Thus, the court finds that the ALJ did not meet his

burden to develop the record by failing to recontact Dr.
Choudhury to resolve the purported discrepancies between Dr.
Choudhury’s conflicting reports. (See Tr. 309-10. Contra Tr.
311-475.)
For the foregoing reasons, the court finds the ALJ
incorrectly concluded that Dr. Choudhury’s opinion should not
have been given controlling weight, and remands for the ALJ to
further develop the record and state good reasons for
disregarding the treating source’s opinion. Greek, 802 F.3d at
375 (quoting Burgess, 537 F.3d at 129-30).
3. The ALJ’s RFC determination is not supported by substantial
evidence.

Plaintiff asserts that the ALJ improperly assigned
more weight to Dr. Georgiou’s and Dr. Harding’s reports than to
plaintiff’s treating physician. (Pl. Br. 5; Tr. 18.) The court
agrees, and also finds that the ALJ, having discounted all of
the professional opinions of record to “little” or “some”
weight, committed legal error in supplanting all of the
professional opinions with his own lay opinion. For these
reasons, the court remands for the ALJ to properly weigh and
consider the medical opinion evidence of record.
In determining a disability claim, an ALJ is “entitled
to weigh all of the evidence available to make an RFC finding
that [is] consistent with the record as a whole,” and thus, an
ALJ’s RFC determination need not track any one medical opinion.
Tricarico v. Colvin, 681 F. App’x 98, 101 (2d Cir. 2017)
(summary order) (quoting Matta v. Astrue, 508 F. App'x 53, 56
(2d Cir. 2013) (emphasis added). Though the ALJ’s opinion need
not follow any specific medical opinion, he may not “arbitrarily
substitute his own judgment for a competent medical
opinion.” Quinn v. Colvin, 199 F. Supp. 3d 692, 712 (W.D.N.Y.
2016) (quoting Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
See also Flynn v. Comm’r of Soc. Sec. Admin., 17-1863-cv 729
Fed. App’x. 119 (Mem)(2d Cir. 2018)(summary order) (quoting Shaw
v. Charter, 221 F.3d 126, 134 (2d Cir. 2000) (“Neither the trial

judge nor the ALJ is permitted to substitute his own expertise
or view of the medical proof for the treating physician’s
opinion.”).
In the instant case, the court cannot discern how the
ALJ reached his RFC determination, which is seemingly
unsupported by any particular medical opinion of record. The
ALJ stated, in a cursory manner, that he assigned “some weight”
to Dr. Georgiou’s opinion because it was consistent with
unspecified objective findings in the record. (Tr. 17.)
Moreover, the ALJ did not explain why he assigned “some weight”
to Dr. Harding’s report, the State Agency consultant who did not
examine plaintiff. (Id.) Dr. Georgiou examined plaintiff on

one day, and Dr. Harding did not examine plaintiff at all.
Furthermore, the ALJ ultimately concluded that plaintiff was not
disabled under the Act, even though he acknowledged that the
record indicates that “claimant may have somewhat greater
impairment-related limitations” than both Dr. Harding’s and Dr.
Georgiou’s opinions would indicate. (Tr. 17.) The court cannot
fathom the ALJ’s reasons for specifically discounting both Dr.
Harding’s and Dr. Georgiou’s opinions, which the ALJ regarded as
overly harsh, while purportedly giving plaintiff “the benefit of
the doubt,” yet nevertheless concluding that plaintiff is not
disabled under the Act.
If the ALJ's “RFC assessment conflicts with an opinion

from a medical source, the adjudicator must explain why the
opinion was not adopted.” Santiago v. Saul, 18-CV-6631 (MJP)
2020 WL 1503232, at *4 (W.D.N.Y. Mar. 30, 2020) (quoting Soc.
Sec. Ruling 96–8p (1996)). Additionally, where the ALJ adopts
only parts of the opinion, he must provide explanation for why
the other portions were rejected. Id. Thus, the ALJ was
required to explain why Dr. Choudhury’s opinion was not adopted
and explain his partial rejection of Dr. Harding’s and Dr.
Georgiou’s opinions as well. See Ferraris v. Heckler, 728 F.2d
592, 587 (2d Cir. 1984); see also Williams v. Astrue, No. 09–CV–
3997, 2010 WL 5126208, at *17–19 (E.D.N.Y. December 9, 2010)
(finding the ALJ's failure to reconcile materially divergent RFC

opinions of plaintiff's treating physician and non-examining
medical expert to be a ground for remand).
“Where the ALJ explains why he credited some portions
of the medical opinion evidence and did not credit others, he
has not substituted his own opinion for that of a medical
source.” Riley v. Comm'r of Soc. Sec., No. 18-CV-6538-MJP, 2020
WL 1061492, at *8 (W.D.N.Y. Mar. 5, 2020) (citing Rivera v.
Berryhill, 312 F. Supp. 3d 375, 380 (W.D.N.Y. 2018) (finding
that ALJ's determinations with respect to weighing of opinion
evidence was proper where the “ALJ discussed the medical opinion
evidence, set forth his reasoning for the weight afforded to
each opinion, and cited specific evidence in the record

which supported his determination.”)). This case is dissimilar
to Riley, where the ALJ carefully reviewed the medical evidence
of record, and explained why he credited some portions of the
opinion evidence over others.
Here, though the ALJ reviewed the evidence, the
decision does not adequately set forth his reasoning. Rather,
the decision merely indicates the ALJ gave plaintiff the
“benefit of the doubt”, or that the RFC was based on the
evidence generally. (Tr. 18.) For the foregoing reasons, the
court remands for the ALJ to properly weigh, consider, and
explain his findings regarding the medical opinion evidence of
record.

CONCLUSION
Federal regulations explicitly authorize a court, when
reviewing decisions of the SSA, to order further administrative
proceedings when appropriate. “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.” 42 U.S.C. § 405(g). Remand is
warranted where “there are gaps in the administrative record or
the ALJ has applied an improper legal standard.” 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. If the record before
the court provides “persuasive proof of disability and a remand
for further evidentiary proceedings would serve no purpose,” the
court may reverse and remand solely for the calculation and
payment of benefits. Parker v. Harris, 626 F.2d 225, 235 (2d
Cir. 1980); see also Kane v. Astrue, 942 F. Supp. 2d 301, 314
(E.D.N.Y. 2013).
Because the court finds that the ALJ did not develop
the record with regard to plaintiff’s inconsistent medical
opinion evidence, did not properly weigh the remaining opinion
evidence, and supplanted his own opinion for the RFC

determination, the court GRANTS plaintiff’s cross-motion, DENIES
defendant’s motion, and REMANDS this case for further
proceedings. The Clerk of Court is respectfully directed to
enter judgment in favor of plaintiff and close this case.
SO ORDERED.
Dated: June 8, 2020
Brooklyn, New York

/s/
Hon. Kiyo A. Matsumoto
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304357. Public record. Not legal advice.