Estrada v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CARMEN ESTRADA,

Plaintiff,

MEMORANDUM AND ORDER

v.

18-cv-3530(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. § 405(g), Carmen Estrada

(“plaintiff”) appeals the final decision of the Commissioner of

Social Security (“defendant”), which found that plaintiff was

not eligible for disability insurance benefits under Title II of

the Social Security Act (“the Act”), on the basis that plaintiff

is not disabled within the meaning of the Act. Plaintiff

alleges that she is disabled under the Act and is thus entitled

to receive disability insurance benefits.

Presently before the court is plaintiff’s motion for

judgment on the pleadings (ECF No. 20, “Pl. Mem.”), defendant’s

motion for judgment on the pleadings (ECF No. 18, “D. Mem.”),

defendant’s response to plaintiff’s motion (ECF No. 21, “D.

Reply Br.”) and plaintiff’s response to defendant’s motion (ECF

No. 22, “Pl. Reply Br.”.) For the reasons stated below, the

Commissioner’s motion for judgment on the pleadings is DENIED,

plaintiff’s motion is GRANTED, and this action is REMANDED for

further proceedings consistent with this Memorandum and Order.

BACKGROUND

I. Procedural History

On July 17, 2015, plaintiff Carmen Estrada filed an

application for Title II disability insurance benefits, with a

protected filing date of June 8, 2015. (ECF No. 23, Joint

Statement of Facts (“JSF”).) Plaintiff alleges that the onset

date of her disability was July 1, 2008, and plaintiff claims

that she is disabled as a result of diabetes, depression and

stage 1 chronic kidney disease. (ECF No. 24, Administrative

Transcript (“Tr.”) 180, 198.) The onset date was later amended

to October 1, 2014. (Tr. 47-48.) On October 21, 2015,

plaintiff’s claim was denied. (Tr. 86.) On November 19, 2015,

plaintiff requested a hearing before an Administrative Law Judge

(“ALJ”). (Tr. 93.) On May 9, 2017, plaintiff appeared and

testified before ALJ Laura Michalec Olszewski. (Tr. 39.) By a

decision dated June 27, 2017, the ALJ determined that plaintiff

was not disabled within the meaning of the Act and was thereby

not entitled to benefits. (Tr. 173.)

On July 3, 2017, plaintiff appealed the ALJ’s decision

to the Appeals Council. (Id.) On April 11, 2018, the Appeals

Council denied review of the decision, thereby rendering the

ALJ’s decision the final decision in the case. (Tr. 1.) On

June 15, 2018, plaintiff filed the instant action in federal

court. (See generally, ECF No. 1, Complaint.)

II. Medical and Non-Medical Evidence

a. Plaintiff’s Non-Medical History

Plaintiff was born on August 9, 1965, is 67 inches

tall and weighs 232 pounds. (Tr. 155, 180.) Plaintiff is not

fluent in English, although she can understand some when spoken

to. (Tr. 49.) Plaintiff went to school through the ninth grade

in Puerto Rico. (Tr. 48.) At plaintiff’s ALJ hearing on May 9,

2017, plaintiff testified in Spanish through an interpreter that

her past work consisted of being a babysitter from 2009 to 2014

and a cleaner at a shopping mall from 2013 to 2014. (Tr. 47,

53.) She testified that she stopped working when she began to

have health problems. (Tr. 54.)

Plaintiff has trouble with her legs, which limits the

amount of time she can stand and walk. (Tr. 211-12.)

Consequently, she relies on her domestic partner, Tomas Soler,

to help her with doing tasks such as food shopping once a month

and preparing meals. (Id.) Plaintiff testified that she does

other limited chores around the house, such as mopping and

sweeping, but when she does, she must “take pills for [her]

pain.” (Tr. 58.) She stated that she cannot stand for a long

time because of the pain she begins to feel. (Tr. 63.)

Generally, plaintiff does not go outside much, and when she

does, she walks slowly with many rests. (Tr. 210-11.)

Plaintiff testified that it is very difficult for her to use

public transportation because there are stairs. (Tr. 63.) She

stated, “I have to stop because I get upstairs. And I am short

of breath or fatigued.” (Id.)

b. Plaintiff’s Medical History

i. Medical Opinion of FEDCAP Physician Mehjabeen Ahmed, MD

On May 13, 2015, plaintiff, accompanied by Mr. Soler,

went to the FEDCAP offices for medical examination. (Tr. 246.)

A work-up of plaintiff’s condition was being undertaken as part

of a process of monitoring public assistance recipients in New

York City. (JSF 12.) Plaintiff underwent examinations,

laboratory tests and patient interviews by FEDCAP intake officer

Ramona Mercado and FEDCAP doctor Mehjabeen Ahmed, M.D. (See Tr.

244-72.) Plaintiff stated to the FEDCAP intake worker that she

was a diabetic, was anemic, and had varicose veins in her right

foot and legs. (Tr. 247.) Plaintiff stated that the varicose

veins prevented her from working because they made her unable to

stand for too long. (Id.) She also stated that she had a

history of depression since 1999 and a psychiatric

hospitalization secondary to a suicide attempt. (Tr. 248-49.)

Plaintiff told the FEDCAP intake worker that she had

been treated for her physical complaints by Albert Benchabbat,

M.D. (Tr. 248.) She began seeing Dr. Benchabbat in October

2014, but had to stop seeing him in February 2015 because she

lost her medical insurance coverage. (Tr. 249.) When

interviewed by Dr. Ahmed, he noted that plaintiff had a history

of diabetes and hypertension. (Tr. 257.) Dr. Ahmed stated that

plaintiff had difficulty ambulating, had poor concentration, was

depressed and unmotivated. (Id.) Additionally, he stated that

plaintiff had a burn on her right lower limb that was sustained

a month prior while cooking. (Id.) Dr. Ahmed also stated that

plaintiff was not compliant with her medication because of the

lack of medical insurance coverage. (Id.) Dr. Ahmed linked her

history of depression with the loss of medical insurance

coverage and medication, and plaintiff’s resulting poor

concentration and lack of motivation. (Id.)

On May 14, 2015, results of blood tests given to

plaintiff were abnormal. (Tr. 268.) Specifically, plaintiff’s

hemoglobin was 6.9 and a normal range of hemoglobin for women is

12.0 to 15.5. (Id.) Due to this low level of hemoglobin,

plaintiff was advised to go to the Emergency Room as soon as

possible. (Tr. 269.) Plaintiff’s blood levels of glucose,

potassium and albumin were also abnormal. (Id.)

On May 15, 2015, Dr. Ahmed diagnosed plaintiff with

diabetes mellitus, essential hypertension, and a burn; all these

conditions were current, stable, and treated. (Tr. 270.) Dr.

Ahmed also diagnosed plaintiff with a depressive disorder and

iron deficiency anemia, both of which were current, unstable,

and untreated. (Tr. 271.) Dr. Ahmed then listed work

limitations caused by the conditions he had found on examination

of plaintiff: “[l]imit/eliminate lifting, pushing, pulling,

carrying, stooping, bending, reaching.” (Tr. 268.) Further, he

stated that the burn, depression, and anemia would all have an

impact on plaintiff’s work capacity. (Tr. 270-71.) Dr. Ahmed

noted that plaintiff’s medical problems needed to be addressed

by her treating doctors before a functional assessment could be

made, but thought that “[b]ased on my exam and psychosocial

interview, client may potentially be eligible for disability

benefits.” (Tr. 272.)

ii. Medical Opinion of Treating Source Albert Benchabbat, MD

On June 9, 2015, plaintiff’s blood and urine test

results, ordered by her treating primary care Dr. Albert

Benchabba, showed multiple abnormal findings. (Tr. 243.)

Plaintiff’s hemoglobin level, which had been 6.9 three weeks

before, had only risen to 7.1. (Id.) Additionally, the results

indicated that plaintiff’s diabetes was not being well

controlled. (Id.) On June 15, 2015, Dr. Benchabbat ordered an

abdominal and retroperitoneal ultrasound. (Tr. 273.) The

results showed: “1) Discrepant renal size. 2) Borderline

hepatosplenomegaly. Clinical correlation recommended.” (Id.)

On July 6, 2015, Dr. Benchabbat diagnosed plaintiff

with diabetes with neurological manifestations, type 2; diabetic

ketoacidosis, uncontrolled; syncope; hypertension; anemias;

chronic kidney disease, stage 1; and fibroid uterus. (Tr. 274.)

On August 18, 2015, Dr. Benchabbat noted that plaintiff had been

suffering from severe back pain. (Tr. 292.) Additionally, he

noted that plaintiff had kidney disease “and her diabetes is

currently uncontrolled. I have recommended that she [have] a

blood transfusion.” (Id.) Dr. Benchabbat also “recommended

that she doesn’t work at this time.” (Id.)

On September 1, 2015, Dr. Benchabbat added a second

list of plaintiff’s diagnoses, including back/lumbar pain;

unspecified backache and sprain and strain of lumbosacral. (Tr.

213.) Additionally, appended notes included the information

that plaintiff’s parents had died of diabetes. (Tr. 214.) On

March 27, 2017, Dr. Benchabbat wrote that plaintiff had left

chest pain and anemia and received a chest x-ray that was

abnormal. (Tr. 290-91.) Further, on June 30, 2017, Dr.

Benchabbat wrote a treatment note to “Social Security” that

“[plaintiff] has severe heart failure and renal failure. She

cannot work. She is 100% disabled.” (Tr. 14.)

iii. Medical Opinion of Treating Source Augusto Angulo, MD

On June 25, 2015, plaintiff was referred for mental

health treatment to Brookdale Hospital and was seen by Dr.

August Angulo, M.D. (Tr. 294.) Dr. Angulo found that plaintiff

had been depressed for two years due to lack of treatment.

(Id.) Dr. Angulo noted that plaintiff’s son was in jail which

led to poor sleep and frequent crying spells. (Id.) Dr. Angulo

diagnosed plaintiff with Depressive Disorder NOS and she was

admitted for outpatient treatment. (Tr. 296.) On July 21,

2015, Dr. Angulo changed plaintiff’s diagnosis to major

depression, recurrent. (Tr. 301.) On August 17, 2015, Dr.

Angulo increased plaintiff’s dosage of doxepin and some

improvement was noted. (Tr. 317.)

iv. Medical Opinion of Treating Source Miguel Sanchez

Almira, MD

On September 29, 2015, plaintiff was also seen by Dr.

Miguel Sanchez Almira, a psychiatrist. (Tr. 323.) She reported

to Dr. Sanchez Almira poor sleep, energy, and concentration, as

well as general depression due to her son’s difficulties. (Tr.

312-13, 323.) Dr. Sanchez Almira stated that plaintiff has a

long history of chronic depression with periods of exacerbation.

(Tr. 323.) Dr. Sanchez Almira diagnosed plaintiff with

dysthymia, insomnia, and ruled out major depressive disorder.

(Tr. 324.) On November 24, 2015, Dr. Almira noted “[c]hronic

low back pain and Edema in L[ower] E[xtremities]. (Tr. 341.)

Plaintiff’s psychiatry visits with Dr. Sanchez Almira

were monthly, between October 2015 and August 10, 2016. (See

Tr. 332-98, 409-19.) Plaintiff reported conflicts with her

children and family which caused stress, but she generally felt

“ok” or “fine.” (See Tr. 333, 341, 371, 377, 392, 398, 410,

419.) Plaintiff’s mental status findings were unremarkable and

consistent with her presentation at the initial intake. (See

Tr. 295-96, 312, 315-17, 333, 377, 398, 410, 419.) At her

visits on February 17, 2016 and May 18, 2016, plaintiff reported

being “stressed out.” (Tr. 370, 391.) On March 1, 2017,

plaintiff’s final visit, she showed no changes in her symptoms

or mental status deficit. (See Tr. 459-60.) Further, she

generally exhibited normal gait and station. (See Tr. 324, 333,

410, 460.) However, on January 20, 2016, Dr. Sanchez Almira

reported that plaintiff had “[e]dema lower extremities” and on

March 16, 2016 that she had suffered from “[c]hronic back pain.”

(Tr. 358, 377.)

v. Medical Opinion of Treating Source Susie Collazo, LCSW

On July 21, 2015, plaintiff began seeing Brookdale

counselor Susie Collazo, L.C.S.W. (Tr. 304.) At the initial

examination, Ms. Collazo reported that plaintiff was casually

dressed, neatly groomed, cooperative, and she made good eye

contact. (Tr. 307.) Plaintiff exhibited a normal mood, full

affect, full orientation, and a normal thought process. (Tr.

309.) Plaintiff’s insight, judgment, impulse control, memory,

and fund of knowledge were fair, and that she appeared to have

below-average intelligence. (Id.) Plaintiff was treated by Ms.

Collazo approximately monthly until September 1, 2016. (See Tr.

320-345.) Plaintiff often indicated that she felt “okay” (see

Tr. 350, 368, 383, 404, 425) or “good” (see Tr. 347, 407),

although she at times felt sad (Tr. 320) or stressed (Tr. 389.).

Ms. Collazo did not record any observations except plaintiff’s

neat grooming and dress. (See Tr. 320, 330, 389, 407, 425.)

vi. Medical Opinion of Consultative Examiner Johanina

McCormick, Ph.D.

On September 24, 2015, plaintiff was seen by the

Commissioner’s consulting psychologist Johanina McCormmick.

During the examination, Dr. McCormick noted that plaintiff was

well groomed but had an overall “poor” presentation. (Tr. 276.)

Plaintiff’s thoughts were coherent and goal directed, without

hallucinations or delusions displayed during the examination.

(Id.) Dr. McCormick found that the patient had “impaired”

attention and “markedly impaired” memory “due to cognitive

challenges.” (Id.) Dr. McCormick noted that plaintiff would be

“markedly impaired maintaining a regular schedule and learning

new tasks” and “moderately to markedly impaired maintaining

attention and concentration.” (Tr. 277.) However, Dr.

McCormick further noted that plaintiff could follow and

understand simple directions and she could perform simple tasks

independently. (Id.) Plaintiff could make appropriate

decisions and relate with others. (Id.) Dr. McCormick

diagnosed plaintiff with “[u]nspecified depressed disorder,

provisional” and “[m]ild neurocognitive disorder, provisional.”

(Id.)

vii. Medical Opinion of Consultative Examiner John Fkiaras,

MD

On October 2, 2015, plaintiff was seen by the

Commissioner’s consulting doctor, Dr. John Fkiaras. (Tr. 279-

283.) Dr. Fkiaras reported that plaintiff had told him she was

suffering from intense low back shooting pain “which radiates to

the bilateral lower extremities” causing difficulty walking even

a short distance, climbing, standing more than a few minutes,

sitting for more than half an hour and lifting any weight. (Tr.

279.) Oral medications only offered mild pain relief. (Id.)

Dr. Fkiaris also reported that plaintiff described her history

of diabetes. (Id.) The diabetes was being “treated with oral

medications and insulin.” (Id.) Plaintiff also reported having

a history of kidney complications secondary to diabetes. (Id.)

Plaintiff complained of numbness bilaterally in her hands and

feet, experienced dizziness, and blurry vision, and had a

history of syncope. (Id.) Plaintiff’s hypertension was being

treated with oral medications. (Id.)

Dr. Fkiaras concluded that plaintiff’s physical

examination produced normal results for most body systems

including eye, ear, nose, and throat; chest and lungs; heart;

and abdomen. (Tr. 281.) Plaintiff displayed a full range of

motion in the cervical spine, shoulders, elbows and wrists, and

in the knees and ankles. (Id.) However, the plaintiff’s range

of motion in her lumbar spine was reduced with “pain to

palpation of the lumbar spine,” and there was a loss in range of

motion of the hips. (Id.) Dr. Fkiaras found “decreased

sensation to light touch to the bilateral hands and bilateral

feet.” (Id.) Plaintiff presented with a “slow gait with and

without a cane.” (Tr. 280.) The cane was used for “pain,

weight, bearing, and balance.” (Id.) Dr. Fkiaras thought that

it was “medically necessary when the claimant is in more severe

pain.” (Id.) Dr. Fkiaras stated that plaintiff:

should avoid any heavy lifting, carrying,

pushing, or pulling. The claimant should

avoid any squatting, kneeling, and crouching.

The claimant has a moderate limitation

climbing stairs. The claimant has a moderate

limitation standing extended periods. The

claimant has a mild to moderate limitation

sitting extended periods. The claimant has a

mild to moderate limitation walking. The

claimant is restricted from activities which

require exposure to unprotected heights. The

claimant is restricted from driving and

operating machinery.

(Tr. 282.)

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 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. Comm’r, 692 F.3d 118, 122 (2d Cir. 2012).

To receive disability benefits, a claimant must be

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

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

is unable to “engage in any substantial gainful activity by

reason of any medically determinable physical or mental

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

lasted or can be expected to last for a continuous period of not

less than 12 months.” Id. § 423(d)(1)(A); Shaw, 221 F.3d at

131-32. The impairment must be of “such severity” that the

claimant is unable to do her previous work or engage in any

other kind of substantial gainful work. 42 U.S.C. §

423(d)(2)(A).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s conditions meet the Act’s

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

process is essentially as follows:

“[I]f the Commissioner determines (1)

that the claimant is not working, (2) that

[s]he has a ‘severe impairment,’ (3) that the

impairment is not one [listed in Appendix 1 of

the regulations] that conclusively requires a

determination of disability, and (4) that the

claimant is not capable of continuing in [her]

prior type of work, the Commissioner must find

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

type of work the claimant can do.”

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

F.3d 99, 106 (2d Cir. 2003) (alterations in original)); 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. § 4040.1523. Further, if

the Commissioner does not find a combination of impairments, the

combined impact of the impairments, including those that are not

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

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

In steps one through four of the sequential five-step

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

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

burden shifts from the claimant to the Commissioner, requiring

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

residual functional capacity, age, education, and work

experience, the claimant is “able to engage in gainful

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

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

“The Commissioner must consider the following in

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

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

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

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

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

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

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

DISCUSSION

a. The ALJ’s Disability Determination

At step one, the ALJ concluded that plaintiff had not

engaged in substantial gainful activity since the application

date of June 8, 2015. (Tr. 29.)

At step two, the ALJ found that plaintiff suffered

from severe impairments of diabetes mellitus, kidney disease,

hypertension, peripheral neuropathy, recurrent arrhythmias, and

depression. (Id.)

At step three, the ALJ determined that 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. §§

416.920(d), 416.925, 416.926). The ALJ found that plaintiff has

moderate limitations in understanding, remembering, or applying

information. (Tr. 29.) The ALJ found that plaintiff has good

short-term and long-term memory, her thought process was goal

directed, and she had good attention, impulse control, insight,

and judgment. (Id.) The ALJ found further that plaintiff has

mild limitations when interacting with others and she has close

and supportive friendships and family relationships. (Id.) The

ALJ also found that plaintiff had moderate limitations with

regard to concentrating, persisting, or maintaining pace;

plaintiff is moderately to markedly impaired with maintaining

attention and concentration; plaintiff has experienced mild

limitations for adapting or managing herself; plaintiff can cook

two or three times a week, clean once a week, do laundry once a

week, and food shop once a month. (Tr. 30.)

The ALJ determined that plaintiff’s mental impairment

did not meet or medically equal the criteria of Listing 12.04.

(Id.) In making this finding, the ALJ considered whether the

“paragraph B” criteria were satisfied. (Tr. 29-30.) The ALJ

concluded that plaintiff’s mental impairment did not cause at

least two “marked” limitations or one “extreme” limitation, and

thus the “paragraph B” criteria were not satisfied. (Tr. 30.)

The ALJ also considered whether the “paragraph C” criteria were

satisfied. (Id.) However, the evidence failed to establish

the presence of the “paragraph C” criteria. (Id.)

At step four, the ALJ found that plaintiff had the

residual functional capacity (“RFC”) to perform light work as

defined in 20 C.F.R. § 416.967(b). (Id.) In arriving at this

RFC, the ALJ stated that:

Specifically, claimant can work at the light

exertional level in that she can lift and/or

carry 20 pounds occasionally and 10 pounds

frequently. She can sit for six hours in an

eight-hour workday, as well as stand and/or

walk for six hours in an eight-hour workday.

Claimant can occasionally climb ramps and

stairs but should never climb ladders and

scaffolds. She can occasionally balance and

stoop; but should never kneel, crouch and

crawl. She should avoid unprotected heights,

operating heavy machinery and operating motor

vehicles. In addition, due to claimant’s

mental impairment, she should work in a low

stress environment, which is defined as

occasional use of judgment, occasional

decision-making, and occasional changes in a

work setting. Claimant can also perform

simple and routine tasks.

(Id.) The ALJ considered opinion evidence in accordance with

the requirements of 20 C.F.R. § 416.927 and Social Security

Rulings 96-2p, 96-5p, 96-6p and 06-3p. (Id.) The ALJ accorded

little weight to the opinions of Dr. Benchabbat because the ALJ

determined that they were not supported by clinical or

laboratory findings and were not consistent with the record,

which shows that plaintiff had received conservative treatment.

(Tr. 31.) Additionally, the ALJ accorded little weight to the

opinions of Dr. Fkiaras and Dr. McCormick because the ALJ found

that they are independent consultative examiners, their opinions

were not consistent with the record as a whole, and their

opinions were not supported by relevant evidence. (Tr. 32-33.)

Further, the ALJ found that their opinions were based solely on

plaintiff’s subjective complaints during a one-time exam rather

than objective findings. (Id.) Dr. Fkiaras did not have the

benefit of the entire medical record, which shows conservative

treatment. (Tr 32.)

Further, the ALJ found that nowhere in the record is a

cane prescribed to plaintiff, although the plaintiff testified

that it was prescribed. (Id.) The ALJ concluded that

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 for the reasons explained in this decision.” (Tr. 34.)

At step five, the ALJ found that plaintiff was capable

of performing work that was available in the national economy,

specifically, the past relevant work as a cleaner (DOT 302.685-

010), which is unskilled and a light level of exertion. (Id.)

Although the ALJ found plaintiff capable of performing past

relevant work, the ALJ also found that there are other jobs

existing in the national economy that she is also able to

perform. (Id.) The ALJ found that on the date the application

was filed, plaintiff was closely approaching an advanced age.

(Id.; 20 C.F.R. § 416.963.) The ALJ further found that

plaintiff had a limited education and was able to communicate in

English. (Id.; 20 C.F.R. § 416.964.)

The ALJ concluded that, in the alternative,

considering plaintiff’s age, education, work experience, and

residual functional capacity, there were other jobs that exist

in significant numbers in the national economy that the claimant

could also perform. (Id.; 20 C.F.R. §§ 416.969, 416.969(a).)

At the ALJ hearing, Molly Malloy Kelley, a vocational expert,

testified that given all the above factors plaintiff would be

able to perform the requirements of representative occupations

such as Garment Sorter (DOT 222.687-014), which is unskilled and

a light level of exertion, and exists in numbers of 75,000 in

the national economy; Laundry Sorter (DOT 361.687-014), which is

unskilled and a light level of exertion and exists in numbers of

65,500 in the national economy; and a Garment Bagger (DOT

920.687-018), which is unskilled and a light level of exertion;

and exists in numbers of 25,000 in the national economy. (Tr.

35, 69-70.) Therefore, the ALJ found that plaintiff had the RFC

to perform the full range of light work, and a finding of “not

disabled” was directed by Medical-Vocational Rule 202.11. (Tr.

35.)

Thus, the ALJ concluded that plaintiff was not

disabled within the meaning of the Act, as defined in 20 C.F.R.

§ 416.920(g), since June 8, 2015, the date the application was

filed. (Tr. 35.)

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

The ALJ committed legal error at step five by

incorrectly applying Medical-Vocational Guideline (commonly

referred to as a “Grid Rule”) 20 C.F.R Part 404, Subpart P,

Appendix 2, Rule 202.11, which applies specifically to someone

who has a “[s]killed or semiskilled” work history. 20 C.F.R

Part 404, Subpart P, Appendix 2, Rule 202.11 (“Rule 202.11”).

For the reasons described below, the court finds that

the ALJ should have applied 20 C.F.R Part 404, Subpart P,

Appendix 2, Rule 202.09 (“Rule 202.09”), the application of

which results in a finding of disability.

Rule 202.09 “applies to those whose education is found

to be ‘illiterate or unable to communicate in English’1 and whose

previous work experience is ‘unskilled or none’ and directs a

finding of disabled. [Rule] 202.11...direct[s] a finding of

disabled for individuals whose education is ‘limited or less’

and whose previous work experience was ‘skilled or semiskilled,’

whether or not the skills are transferable. In other words, with

respect to individuals who are closely approaching advanced age,

1 Though “inability to communicate in English” remains the correct

standard for the instant case, filed on July 17, 2015, for cases filed from

April 27, 2020 forward, the Social Security Administration has updated the

rules to remove this language. See Removing Inability To Communicate in

English as an Education Category, 85 FR 10586-01 (“We are finalizing our

proposed regulations to eliminate the education category ‘inability to

communicate in English’ when we evaluate disability claims for adults under

titles II and XVI of the Social Security Act (the Act).”).

Table 2 directs finding of disabled for those individuals ‘who

are illiterate or unable to communicate in English.’” Jimenez v.

Berryhill, No. 16-CV-3972, 2018 WL 4054876, at *6 (E.D.N.Y. Aug.

24, 2018).

Two findings undergird the ALJ’s misidentification of

Rule 202.11 as the proper grid rule to use here. First, the

ALJ’s finding that plaintiff is able to communicate in English

is clearly erroneous and unsupported by substantial evidence.

(Tr. 34.) The record establishes that plaintiff does not read,

write, speak or understand English, and required a Spanish-

English translator to communicate with people speaking in

English. (See, e.g., Tr. 196, 244, 247, 257, 275, 307.)

Defendant concedes that plaintiff is unable to communicate in

English. (D. Mem. 15.) Thus, the court finds that during the

period at issue, plaintiff was unable to communicate in English.

Second, the ALJ determined that the plaintiff was

capable of “performing past relevant work as a Cleaner (DOT

302.685-010), which is unskilled....” (Tr. 34.) The defense

argues that the ALJ relied upon the vocational expert’s

characterization of plaintiff’s babysitting work as a “Child

Monitor” to find plaintiff not disabled in step five. (D. Reply

Br. 2-4.) Because “Child Monitor” is “semiskilled” work, the

defense argues that the ALJ properly applied Rule 202.11.

However, the ALJ did not make a determination that the plaintiff

has past work history as a “Child Monitor,” or any other work

beyond the “unskilled” work of Cleaner. (Tr. 34-35.) The Court

cannot accept post hoc rationalizations the Commissioner now

wishes to introduce regarding plaintiff’s purported history of

“semiskilled” work, given the lack of any corresponding

discussion in the ALJ’s decision. See Newbury v. Astrue, 321 F.

App'x 16, 18 (2d Cir. 2009) (“A reviewing court “‘may not accept

appellate counsel’s post hoc rationalizations for agency

action.’” (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.

1999))). The ALJ’s only reference to the vocational expert’s

testimony is to support a finding that other “unskilled”

occupations exist in the national economy, similar to

plaintiff’s past work as a “Cleaner.” (Tr. 34-35.)

Rule 202.09 is the correct standard, as it

specifically applies to someone with plaintiff’s vocational

profile who, at age 53, with the exertional capacity for light

work as reflected in the ALJ’s RFC finding at step four, is also

both “unable to communicate in English” and has historically

performed “unskilled” work. The differentiating factors between

Rule 202.11 and 202.09 are work experience and the ability to

communicate in English. Rule 202.11 applies to an individual

who has “[s]killed or semiskilled” work experience without

transferable skills, whereas Rule 202.09 applies to an

individual with only “[u]nskilled or [no]” work experience, who

is unable to communicate in English. (Rules 202.11, 202.09.)

For a 53-year old claimant who is “closely approaching advanced

age” with “skills that are not readily transferable to a

significant range of semi-skilled or skilled work that is within

the individual's functional capacity,” who possesses

“limitations in vocational adaptability represented by

functional restriction to light work,” and where claimant’s

“vocational scope is further significantly limited by

illiteracy,” including an inability to communicate in English,

“a finding of disability is warranted.” 20 C.F.R. Part 404,

Subpart P, Appendix 2, Sec. 202.00(c)-(d); see also Clark v.

Berryhill, 697 F. App'x 49, 51 (2d Cir. 2017), Draegert v.

Barnhart, 311 F.3d 468, 472 (2d Cir. 2002) (describing similar

Grid Rule based analyses for claimants with different

characteristics).

Because the ALJ committed legal error in making her

determination, the court finds that the ALJ’s decision is not

supported by substantial evidence. “Where there is a reasonable

basis for doubt whether the ALJ applied correct legal

principles, application of the substantial evidence standard to

uphold a finding of no disability creates an unacceptable risk

that a claimant will be deprived of the right to have her

disability determination made according to the correct legal

principles.” Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.

1987). Therefore, the court concludes that plaintiff is

disabled per Rule 202.09. The court respectfully remands the

case to the ALJ for the calculation of benefits.

CONCLUSION

Federal regulations explicitly authorize a court, when

reviewing decisions of the Social Security Administration, to

reverse a decision of the Commissioner. 42 U.S.C. § 405(g)

(“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.”)

The court finds that the ALJ erred in finding

plaintiff not disabled. Accordingly, plaintiff’s motion is

GRANTED, Commissioner’s motion is DENIED, and this case is

REMANDED for the calculation of benefits in accordance with this

Memorandum and Order. The clerk is respectfully requested to

enter judgment for plaintiff and close this case.

SO ORDERED.

DATED: June 23, 2020

Brooklyn, New York

__________/s/_______________

HON. KIYO A. MATSUMOTO

United States District Judge