Goulbourne v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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TREVOR G. GOULBOURNE, JR.,

Plaintiff,

-against- MEMORANDUM AND ORDER

18-CV-2377 (KAM)

ANDREW M. SAUL,1

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Trevor Goulbourne, Jr. (“plaintiff”) appeals

the final decision of the Commissioner of Social Security

(“defendant” or the “Commissioner”), which found that plaintiff

was not disabled, and therefore not entitled to Supplemental

Security Income benefits or disability insurance benefits under

Title II of the Social Security Act (the “Act”). Plaintiff

moved for judgment on the pleadings, contending that the

Administrative Law Judge (“ALJ”) failed to follow the treating

physician rule in weighing the medical opinion evidence,

1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to the

Federal Rules of Civil Procedure, Rule 25(d), Andrew M. Saul should be

substituted for Acting Commissioner Nancy A. Berryhill as the defendant in

this suit. No further action need be taken to continue this suit by reason

of the last sentence in section 205(g) of the Social Security Act, 42 U.S.C.

§ 405(g).

improperly discounted medical source statements from

consultative examiners, improperly assessed plaintiff’s

credibility, and that the ALJ’s residual functional capacity

(“RFC”) determination was not supported by substantial evidence.

Defendant cross-moved for judgment on the pleadings.

For the reasons herein, plaintiff’s motion for

judgment on the pleadings is GRANTED, the defendant’s motion is

DENIED, and the case is REMANDED for further proceedings

consistent with this Memorandum and Order.

BACKGROUND

On July 14, 2007, plaintiff was admitted to a mental

health facility after a suicide attempt, where he reported prior

suicide attempts and drug overdose, and stated that he felt

“overwhelmed and helpless with his living situation.” (ECF No.

27, Administrative Transcript (“Tr.”), at 512, 517.) Plaintiff

began to seek treatment from Dr. Kingsley Nwokeji, a

psychiatrist, in March 2012. (Id. at 685-87.) Dr. Nwokeji

diagnosed plaintiff with bipolar disorder, and assigned him a

Global Assessment of Functioning score of 40. (Id.) Plaintiff

continued to consult with Dr. Nwokeji throughout 2014, 2015, and

2016. (Id. at 766, 788-89, 792-98, 813-16, 826-27.)

On May 29, 2014, plaintiff sought treatment from Dr.

Shawn Allen, a psychiatrist, who diagnosed plaintiff with

bipolar disorder, cannabis dependence, and alcohol dependence.

(Id. at 430-32.) Dr. Allen noted that plaintiff exhibited

grandiosity bordering on delusion. (Id.) On August 26, 2014,

Dr. Allen diagnosed plaintiff with mood disorder. (Id. at 428-

29.) On October 1 and 23, 2014, Dr. Allen again diagnosed

plaintiff with bipolar and mood disorder. (Id. at 424-25, 426-

27.)

On December 17, 2014, plaintiff attended a one-time

consultative examination with Dr. Johanina McCormick, a

psychologist. (Id. at 466-70.) Dr. McCormick noted that the

result of this assessment “appear[ed] to be consistent with

psychiatric problems” which “may significantly interfere [with

plaintiff]’s ability to function on a daily basis.” (Id. at

469.) Dr. McCormick diagnosed plaintiff with provisional

“[u]nspecified bipolar and related disorder.” (Id.)

On February 18, 2015, plaintiff had a psychiatric

assessment performed by Dr. Hina Fullar, who diagnosed him with

schizoaffective disorder and cannabis dependence. (Id. at 485-

87.)

On April 27, 2016, plaintiff completed another one-

time consultative exam with Dr. Jennifer Leach, who diagnosed

plaintiff with unspecified schizophrenia spectrum or other

psychotic disorder, and unspecified bipolar disorder. (Id. at

497-506.)

Plaintiff first filed applications for Social Security

Disability and Supplemental Security Income benefits pursuant to

the Act on July 15, 2014, with an alleged onset date of April

24, 2013. (Id. at 300-13.) The Commissioner denied the

applications on January 13, 2015. (Id. at 225-32.) Plaintiff

appealed the decision on March 21, 2015, and requested a hearing

by before an ALJ. (Id. at 233-34.)

A hearing was held on February 27, 2017 before ALJ

Michael Friedman, during which vocational expert Raymond Cestar

testified. (Id. at 35-56.) The ALJ issued a denial on March

30, 2017. (Id. at 14-34.) Thereafter, plaintiff requested a

review by the Appeals Council on May 15, 2017. (Id. at 299.)

On February 15, 2018, the Appeals Council denied the request,

finding no reason to review the ALJ’s decision. (Id. at 1-6.)

This action in federal court followed. (See generally ECF No.1,

Complaint.)

LEGAL STANDARD

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 v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).

“Substantial evidence is ‘more than a mere scintilla,’” and must

be relevant evidence that a “‘reasonable mind might accept as

adequate to support a conclusion.’” Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (quoting 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 plaintiff 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, 10 (2d Cir. 1990)).

The reviewing court does not have the authority to conduct a de

novo review and may not substitute its own judgment for that of

the ALJ, even when it might have justifiably reached a different

result. Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir.

2012).

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 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

12 months.” 42 U.S.C. § 423(d)(1)(A); 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 his 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

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 (quotation and citation omitted); see

also 20 C.F.R. § 404.152(a)(4).

During this five-step process, the Commissioner must

consider whether “the combined effect of any such impairment

. . . would be of sufficient severity to establish eligibility

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

if the Commissioner does find a combination of impairments, the

combined impact of the impairments, including those that are not

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

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

one through four of the sequential five-step framework, the

claimant bears the “general burden of proving . . . disability.”

Burgess, 537 F.3d at 128. At step five, the burden shifts from

the claimant to the Commissioner, requiring that the

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

Lastly, federal regulations explicitly authorize a

court, when reviewing decisions of the Commissioner, to order

further 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 v.

Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v.

Chater, 94 F.3d 34, 39 (2d Cir. 1996)). Remand is particularly

appropriate where further findings or explanation will clarify

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

DISCUSSION

I. The ALJ’s Disability Determination

Using the five-step sequential process to determine

whether a claimant is disabled, the ALJ determined at step one

that plaintiff met the insured status requirements through

September 30, 2016, and had not performed substantial gainful

activity since his alleged onset date. (Tr. at 19.)

At step two, the ALJ found that plaintiff suffered

from severe impairments of bipolar disorder, adjustment

disorder, anxiety disorder, schizoaffective disorder, cannabis

abuse, and ethyl alcohol abuse. (Id.)

At step three, the ALJ determined that from the

alleged onset date in 2013 through the date of the decision,

plaintiff did not have an impairment or combination of

impairments that met or medically equaled the severity of one of

the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925 and 416.926), although the ALJ considered

Listings 12.03 (schizophrenia spectrum and related disorders) and

12.04 (depressive and bipolar related disorders). (Id. at 20-

21.) The ALJ found that the plaintiff had moderate, as opposed

to “marked” or “extreme,” limitations in interacting with

others, concentrating, persisting, maintaining pace, adapting

and managing oneself, and that the record did not establish that

the plaintiff had only “minimal capacity to adapt to changes in

the [plaintiff’s] environment or to demands that are not already

part of the [plaintiff’s] daily life.” (Id.) The ALJ also

found that plaintiff would be capable of performing “a full

range of work at all exertional levels but with the following

non[-]exertional limitations: [plaintiff] is restricted to jobs

involving simple, routine repetitive type tasks requiring only

occasional contact with supervisors and coworkers and contact 2

to 4 times per day with the public.” (Id. at 21-27.)

At step four, the ALJ concluded that the plaintiff was

unable to perform any of his past relevant work as a customer

service representative, technical support analyst, or material

handler, based on the vocational expert’s report that a person

with plaintiff’s RFC could not perform his past work. (Id. at

27-28.)

At step five, the ALJ found that plaintiff was capable

of performing work that was available in the national economy

from April 24, 2013 through the date of the decision, as a

dishwasher, a park worker, or an assembler of small parts. (Id.

at 28-29.) Thus, the ALJ concluded that plaintiff was not

“disabled” within the meaning of the Act. (Id.)

II. The ALJ Did Not Sufficiently Develop the Record or

Provide “Good Reasons” For Assigning Little Weight to the

Opinions of a Treating Psychiatrist

Plaintiff argues that the AJL violated the treating

physician rule by according Dr. Nwokeji’s opinions little

weight, rather than controlling weight. (See ECF No. 22,

Plaintiff’s Brief (“Pl. Br.”), at 2-7.) The court agrees that

the ALJ’s reasons for assigning Dr. Nwokeji’s opinions little

weight were insufficient. On remand, if the ALJ assigns Dr.

Nwokeji’s opinions less than controlling weight, the ALJ must

adequately explain the specific reasons for doing so, and also

consider whether some weight between controlling weight and

little weight would be more appropriate.

Under the Commissioner’s regulations, every medical

opinion in the administrative record must be evaluated,

“[r]egardless of its source,” when determining whether a

claimant is disabled. 20 C.F.R. §§ 404.1527(c), 416.927(c).

The ALJ must evaluate each source, considering factors such as a

source’s relationship with the claimant, the supportability of

the opinion, the consistency of the opinion with the record as a

whole, the specialization of the medical source, and any other

relevant factors that tend to support or contradict the medical

opinion. 20 C.F.R. § 404.1527(c). The ALJ must finally

determine how much weight to assign each opinion based on these

factors. Id.

Under the regulations in place at the time plaintiff

filed his claim, the ALJ was to “defer ‘to the views of the

physician who has engaged in the primary treatment of the

claimant.’” Cichocki v. Astrue, 534 F. Appx. 71, 74 (2d Cir.

2013) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d

Cir. 2003)).2 “However, ‘[a] treating physician’s statement that

the claimant is disabled cannot itself be determinative.’” Id.

2 The Commissioner has revised its rules to eliminate the treating physician

rule, and ALJs are now to weigh all medical evaluations, regardless of their

sources, based on how well supported they are and their consistency with the

remainder of the record. See 20 C.F.R. §§ 404.1520b; 416.920c. Claims filed

before March 27, 2017, however, are still subject to the treating physician

rule. See id. § 404.1527(c)(2). Plaintiff filed his claim on July 15, 2014.

Accordingly, the court applies the treating physician rule in the instant

case. See, e.g., Conetta v. Berryhill, 365 F. Supp. 3d 383, 395 n.5

(S.D.N.Y. 2019).

(quoting Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)).

“Rather, ‘a treating source’s opinion on the issue(s) of the

nature and severity of [a claimant’s] impairment(s)’ will be

given ‘controlling weight’ if the opinion is ‘well-supported by

medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in [the claimant’s] case record.’” Id. (quoting 20

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

(describing this principle as the “treating physician” rule). A

treating source is defined as a plaintiff’s “own physician,

psychologist, or other acceptable medical source” who has

provided plaintiff “with medical treatment or evaluation and who

has, or has had, an ongoing treatment relationship with [the

plaintiff].” 20 C.F.R. § 404.1502; see also Bailey v. Astrue,

815 F. Supp. 2d 590, 597 (E.D.N.Y. 2011) (“A treating source’s

medical opinion on the nature and severity of an impairment is

given controlling weight when it is supported by medically

acceptable clinical and laboratory diagnostic techniques and is

not inconsistent with other substantial evidence in the

record.”). Medically acceptable clinical and laboratory

diagnostic techniques include consideration of a “patient’s

report of complaints, or history, [as] an essential diagnostic

tool.” Green–Younger, 335 F.3d at 107.

When a treating physician’s opinion is not afforded

controlling weight, the ALJ must “comprehensively set forth

reasons for the weight assigned to a treating physician’s

opinion.” Halloran, 362 F.3d at 33; see also 20 C.F.R. §

416.927(c)(2) (requiring the Commissioner to “always give good

reasons in [its] notice of determination or decision for the

weight [given to a] treating source’s medical opinion”). The

Commissioner’s regulations enumerate several factors that may

guide an ALJ’s determination of what weight to give to a

treating source’s opinion: (1) the length, frequency, nature,

and extent of the treating relationship, (2) the supportability

of the treating source opinion, (3) the consistency of the

opinion with the rest of the record, (4) the specialization of

the treating physician, and (5) any other relevant factors. 20

C.F.R. § 416.927(c)(2)-(6). The ALJ is not required to cite

each factor explicitly in the decision, but must ensure he

applies the substance of the rule. Halloran, 362 F.3d at 32.

The Second Circuit has “consistently held that the failure to

provide good reasons for not crediting the opinion of a

claimant’s treating physician is a ground for remand.” Sanders

v. Comm’r of Soc. Sec., 506 F. App’x 74, 77 (2d Cir. 2012); see

also Halloran, 362 F.3d at 32–33.

Here, Dr. Nwokeji, with whom plaintiff began treatment

in March 2012, opined on a form in connection with plaintiff’s

application for welfare benefits in February 2015 that plaintiff

was unable to work for at least 12 months, and thus may be

entitled to long term disability benefits, because of

plaintiff’s unstable condition and severe anxiety, panic

attacks, racing thoughts, and history of suicide attempts. (Tr.

at 597-98.) The ALJ found Dr. Nokeji’s opinion “conclusory,”

and that it “did not provide [plaintiff]’s function by function

limitations.” (Id. at 26.)

Dr. Nwokeji’s February 2015 opinion was provided on a

“Treating Physician’s Wellness Plan Report” provided by the New

York City Department of Social Services, only two pages of which

were designed to be filled in by Dr. Nwokeji. (See id. at 597-

98.) Though Dr. Nwokeji detailed plaintiff’s condition on the

form (id. at 597), the ALJ discounted the opinion because Dr.

Nwokeji did not include “function by function limitations” (id.

at 26). “The ALJ has an obligation to develop the record in

light of the non-adversarial nature of the benefits proceedings,

regardless of whether the claimant is represented by counsel.”

Shaw, 221 F.3d at 131. “The ALJ’s finding that [a treating

physician] did not submit a function-by-function assessment is

insufficient to justify discounting [the treating physician’s]

opinion where it was the ALJ’s duty to develop the record.”

Santiago v. Comm’r of Soc. Sec., 413 F. Supp. 3d 146, 156

(E.D.N.Y. 2018). The duty to develop the record recognizes the

possibility that a doctor’s failure to include detailed

explanations in his opinion may be “because he did not know that

the ALJ would consider it critical to the disposition of the

case,” not because such “support does not exist.” Clark v.

Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).

Therefore, “an ALJ cannot reject a treating physician’s

diagnosis without first attempting to fill any clear gaps in the

administrative record.” Burgess, 537 F.3d at 129 (quoting Rosa,

168 F.3d at 79).

The form Dr. Nwokeji completed did not request a

function-by-function assessment. There is no evidence that the

ALJ satisfied his duty to develop the record by requesting any

additional information from Dr. Nwokeji before assigning his

opinion little weight.

Dr. Nwokeji’s later opinions, in April and November

2015, did include a function-by-function assessment, and noted

that plaintiff was unable to work due to significant functional

limitations. (Id. at 605-15.) The ALJ also accorded those

opinions little weight, because he found the opinions were

inconsistent with other evidence, i.e.: plaintiff’s attention

and concentration were found intact during formal testing,

plaintiff indicated he could take public transportation

independently and traveled to medical appointments unassisted,

evidence showed that plaintiff had friends despite some evidence

of physical altercations, and plaintiff was well-maintained on

medication. (Id. at 26.)

Having the ability to perform basic daily activities

is not a good reason to discount a treating physician’s opinion.

Destina v. Berryhill, 2018 WL 4964103, at *7, (E.D.N.Y. Oct. 15,

2018); see also Cabibi v. Colvin, 50 F. Supp. 3d 213, 238

(E.D.N.Y. 2014) (“Indeed, it is well-settled that the

performance of basic daily activities does not necessarily

contradict allegations of disability, as people should not be

penalized for enduring the pain of their disability in order to

care for themselves.”) (quotation omitted). Moreover, the ALJ

assigned these opinions little weight, when they would

ordinarily be due controlling weight; such a discount based on a

perceived inconsistency with one piece of evidence (attention

and concentration testing) does not “comprehensibly set forth

[the ALJ’s] reasons for the weight assigned to [the] treating

physician’s opinion.” Burgess, 539 F.3d, at 129 (quoting

Halloran, 362 F.3d at 33). The ALJ did not provide specific

examples or a full explanation of how Dr. Nwokeji’s opinions

were inconsistent with other medical records. Thus, the ALJ

failed to “comprehensibly” provide reasons for the weight

assigned.

Accordingly, the court finds that the ALJ erred by

failing to develop the record and provide good reasons for why

he did not give Dr. Nwokeji’s opinions controlling weight. On

remand, if the ALJ assigns Dr. Nwokeji’s opinions less than

controlling weight, the ALJ must provide sufficiently good

reasons for doing so, after filling in any gaps perceived in Dr.

Nwokeji’s opinions.

III. The ALJ’s RFC and Determination that Plaintiff Was

Capable of Performing Jobs Existing in Significant

Numbers Were Not Supported by Substantial Evidence

Plaintiff also persuasively argues that the ALJ erred

by not taking into account all functional limitations in

developing a hypothetical to present to the vocational expert

regarding the types of jobs plaintiff would be able to perform.

(See Pl. Br. at 11-13.)

At the last step of the disability determination, the

Commissioner has the burden to prove that plaintiff is capable

of performing other jobs existing in significant numbers in the

national economy in light of plaintiff’s RFC, age, education,

and past relevant work. 20 C.F.R. §§ 416.920, 416.960. In

relying on a vocational expert’s testimony to satisfy the

burden, posing a “hypothetical question that does not present

the full extent of a claimant’s impairments cannot provide a

sound basis for vocational expert testimony.” Gray v. Astrue,

2009 WL 790942, at *14 (N.D.N.Y. Mar. 20, 2009); see also De

Leon v. Sec’y of Health & Human Servs., 734 F.2d 930, 936 (2d

Cir. 1984) (“In positing hypothetical questions to the

vocational consultant,” the ALJ must “present the full extent of

[the claimant’s] disabilities.”).

In this case, the ALJ posed a hypothetical question,

asking the vocational expert to assume that an individual had

“unrestricted physical RFC, but [is] limited to jobs involving

simple, routine, repetitive type tasks . . . requiring only

occasional contact with supervisors and co-workers, and contact

two to four times per day with the public.” (Tr. at 52-53.)

This hypothetical question posed to the vocational expert did

not accurately reflect all of plaintiff’s impairments,

limitations, and restrictions. See Melligan v. Chater, 1996 WL

1015417, at *8 (W.D.N.Y. Nov. 14, 1996) (“In order to rely on a

vocational expert’s opinion: ‘the hypothetical question posed to

a vocational expert must fully set forth a claimant’s

impairments.’”) (quoting Totz v. Sullivan, 961 F.2d 727, 730

(8th Cir.1992)).

First, the RFC in the ALJ’s hypothetical failed to

account for plaintiff’s inability to tolerate stress. “Because

stress is ‘highly individualized,’ mentally impaired individuals

‘may have difficulty meeting the requirements of even so-called

‘low-stress’ jobs,’ and the Commissioner must therefore make

specific findings about the nature of a claimant’s stress, the

circumstances that trigger it, and how those factors affect his

ability to work.” Stadler v. Barnhart, 464 F. Supp. 2d 183,

188-89 (W.D.N.Y. 2006) (citing S.S.R. 85-15, 1985 WL 56857

(S.S.A. Jan 1, 1985) and Welch v. Chater, 923 F. Supp. 17, 21

(W.D.N.Y. 1996)). Thus, the obligation to make specific

findings cannot be satisfied “by merely indicating that the

claimant can perform simple, unskilled work.” Almodovar v.

Berryhill, 2019 WL 1313883, at *14 (S.D.N.Y. Mar. 22, 2019)

(quotation omitted). Accordingly, an ALJ must specifically

inquire into and analyze a claimant’s ability to manage stress.

See Haymond v. Colvin, 2014 WL 2048172, at *9 (W.D.N.Y. May 19,

2014).

Dr. Nwokeji, Dr. Fullar, Dr. McCormick, and Dr. Leach

all opined that plaintiff had limitations in dealing with

stress. Dr. McCormick found plaintiff to be “markedly impaired

appropriately dealing with stress.” (Tr. at 469.) Dr. Fullar

observed “limited or maladaptive coping skills to deal with

emotional distress.” (Id. at 488.) Dr. Leach found “marked

limitations . . . dealing appropriately with stress.” (Id. at

502.) Finally, Dr. Nwokeji found that plaintiff had limited

ability to deal with normal work stress in unskilled work and

had seriously limited ability in dealing with stress of semi-

skilled and skilled work. (Id. at 607, 612.) The ALJ, however,

made no specific findings about the nature of plaintiff’s

ability to handle stress or its triggering circumstances, thus

failing his obligation to evaluate plaintiff’s stress. See

Almodovar, 2019 WL 1313883, at *15 (“On remand, the ALJ

must . . . specifically consider ‘what is the appropriate

finding as to the claimant’s ability to tolerate stress, how

that finding impacts [plaintiff’s] RFC, and what jobs would be

available based on that RFC.’”) (quoting Valentin v. Berryhill,

2017 WL 3917004, at *17 (S.D.N.Y. Sep. 6, 2017)).

Second, the RFC in the ALJ’s hypothetical failed to

account for plaintiff’s inability to maintain adequate social

functioning. Dr. McCormick opined that plaintiff was “markedly

impaired” relating with others. (Tr. at 469.) Dr. Fullar

opined that the plaintiff had “marked limitations in his ability

to . . . engage in stable social interactions or

relationships . . . which is imperative for gainful employment.”

(Id. at 488.) Dr. Leach noted the plaintiff “presents marked

limitations . . . relating adequately with others.” (Id. at

502.) Finally, Dr. Nwokeji found plaintiff has marked

limitation in “maintaining social functioning.” (Id. at 608.)

The vocational expert testified that “no jobs” would be

available for a person who has inadequate social functioning or

has difficulty interacting for more than ten percent of the

workday. (Id. at 55.) Thus, it was error for the ALJ to rely

on an RFC and a hypothetical that did not fully include

plaintiff’s social limitations.

Third, the RFC in the ALJ’s hypothetical failed to

account for plaintiff’s inability to maintain a schedule or

function on a sustained basis. Again, the medical opinions

consistently noted plaintiff’s marked limitations in this

respect. Dr. McCormick opined that the plaintiff had “marked

impairment maintaining a regular schedule.” (Id. at 469.) Dr.

Fullar opined that the plaintiff had “marked limitation in his

ability to . . . maintain employment . . . [and] engage in

activities requiring . . . regularity.” (Id. at 488.) Dr.

Leach noted that the plaintiff “present[ed] marked limitation

maintaining a regular schedule.” (Id. at 502.) Finally, Dr.

Nwokeji estimated that the plaintiff would be absent for more

than four days per month. (Id. at 615.) Additionally, the

vocational expert testified that unscheduled absences of

“anything more than once per month would be considered

excessive,” and “anybody who’s off task 10 percent or more . . .

would be unable to perform at a consistent pace, [and] would not

meet quality standards or productivity on any sustained basis.”

(Id. at 54.) In other words, such a person could not “be

gainfully employed.” (Id.) Despite the limitations noted by

all medical sources, the ALJ’s ultimate hypothetical described

an individual who was “limited to jobs involving simple,

routine, repetitive type tasks.” (Id. at 52-53.) This

hypothetical did not account for the limitation on plaintiff’s

ability to maintain a schedule, and the ALJ erred by failing to

include that limitation, as well as the other aforementioned

limitations, when seeking guidance from the vocational expert.

Because the ALJ’s RFC failed to take into account all

of the evidence of plaintiff’s functional limitations, his

determination that plaintiff was capable of performing jobs that

existed in significant numbers in the national economy was not

supported by substantial evidence.

CONCLUSION

For the reasons stated above, plaintiff’s motion for

judgment on the pleadings is GRANTED, and defendant’s cross-

motion for judgment on the pleadings is DENIED. This action is

REMANDED for further proceedings consistent with this Memorandum

and Order. The clerk of court is respectfully directed to enter

judgment in favor of plaintiff and close this case.

SO ORDERED.

Dated: Brooklyn, New York

July 13, 2020

/s/

HON. KIYO A. MATSUMOTO

United States District Judge