# Estrada v. Commissioner of Social Security

> District Court, E.D. New York · June 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10304573

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- describing similar Grid Rule based analyses for claimants with different characteristics

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
CARMEN ESTRADA,

Plaintiff,
MEMORANDUM AND ORDER
v.
18-cv-3530(KAM)
COMMISSIONER OF SOCIAL SECURITY,

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304573. Public record. Not legal advice.