# Kennedy v. Berryhill

> District Court, E.D. New York · March 5, 2021

URL: https://www.frixlaw.com/law-library/cases/10305758

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 5, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------X

STEPHANIE MELISSA KENNEDY,

Plaintiff,

-against- MEMORANDUM AND ORDER
19-CV-01740 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

--------------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Stephanie Melissa Kennedy (“plaintiff”)
appeals the final decision of the Commissioner of Social
Security (“defendant”), which found plaintiff not disabled and
thus not entitled to disability insurance benefits (“DIB”) under
sections 216(i) and 223(d) of the Social Security Act (“the
Act”). Before the court are the parties’ cross-motions for
judgment on the pleadings. For the reasons set forth below,
plaintiff’s motion for judgment on the pleadings is GRANTED in
part, the Commissioner’s motion for judgment on the pleadings is
DENIED, and this action is REMANDED for further proceedings
consistent with this Memorandum and Order.
BACKGROUND
The factual and procedural background leading to this
action is set forth in the administrative record.
(Administrative Transcript (“Tr.”), ECF No. 13.) The court has
reviewed the parties’ respective motions for judgment on the
pleadings and the administrative record. The parties entered
into a joint stipulation of facts on March 16, 2020, detailing
plaintiff’s medical history and administrative hearing testimony
at her administrative hearing, which the court hereby

incorporates by reference. (See Joint Stipulation of Facts
(“Stip.”), ECF No. 12-1.)
I. Procedural History
Plaintiff filed an application for disability
insurance benefits on March 10, 2015, alleging disability
beginning January 1, 20061, due to impulse control disorder,
mental health issues, asthma, and allegations of bipolar
disorder. (Tr. at 85, 358.) Plaintiff’s claim was denied on
June 24, 2015. (Id.) On July 1, 2015, plaintiff requested a
hearing before an administrative law judge (“ALJ”). (Id.) On
July 12, 2017, plaintiff appeared with counsel and testified

before ALJ Michelle L. Allen (“ALJ Allen” or the “ALJ”). (Id.
at 136-66.) At the hearing, ALJ Allen heard testimony by

1 The court notes that, during the hearing held before ALJ Michelle L.
Allen, plaintiff’s attorney asked to amend the alleged onset from 1/1/06 to
the date of the application, because otherwise the onset date would be “a
little excessive.” (Tr. at 139.) The ALJ responded that “that[ is] how I
would look at it anyway.” (Id.) No formal amendment was requested or
granted.
plaintiff and Dawn Blythe, a vocational expert. (Id. at 135-
70.)
On September 27, 2017, ALJ Allen issued a decision
affirming the SSA’s determination that plaintiff did not qualify
as disabled within the meaning of the Act and, as a result, was
not entitled to benefits. (Id. at 82-98.) In a letter dated

November 17, 2017, plaintiff appealed ALJ Allen’s decision to
the Appeals Council. (Id. at 326-27.) In response, the Appeals
Council issued a letter to plaintiff stating that plaintiff’s
appeal was received on December 8, 2017, which was after the
Appeals Council’s December 1, 2017 deadline. (Id. at 12-14.)
Plaintiff provided a certified mail receipt confirming that her
November 17, 2017 letter of appeal was actually received by the
Appeals Council on November 21, 2017. (Id. at 328-31.) In
addition, in a letter dated December 12, 2018, the Appeals
Council notified plaintiff’s attorney that Exhibit 20F, medical
records from Dr. Shoulton, and Exhibit 21F, medical records from

FEDCAP, had not been proffered to plaintiff before the ALJ’s
unfavorable decision. (Id. at 8-9.)
On January 24, 2019, the Appeals Council denied
plaintiff’s appeal, making ALJ Allen’s decision the final
decision of the Commissioner. (Id. at 1-7.) This action
followed. (See generally Complaint (“Compl.”), ECF No. 1.)
STANDARD OF REVIEW
Unsuccessful claimants for disability benefits may
bring an action in federal court seeking judicial review of the
Commissioner’s denial of their benefits. 42 U.S.C. §§ 405(g),
1383(c)(3). The 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). Rather, “‘[a] district court may set aside the
Commissioner’s determination that a claimant is not disabled
only if the factual findings are not supported by ‘substantial
evidence’ or if the decision is based on legal error.’” Burgess
v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (quoting Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000)).
“Substantial evidence means ‘more than a mere
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Id.

(quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)).
If there is substantial evidence in the record to support the
Commissioner’s factual findings, those findings must be upheld.
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive . . . .”). Inquiry into legal error
requires the court to ask whether “‘the claimant has had a full
hearing under the [Commissioner’s] regulations and in accordance
with the beneficent purposes of the [Social Security] Act.’”
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz
v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).
DISCUSSION
I. The Commissioner’s Five-Step Analysis of Disability Claims

A claimant must be “disabled” within the meaning of
the Act to receive disability benefits. See 42 U.S.C. §§ 423(a),
(d). A claimant qualifies as disabled when she is unable to
“engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A); 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).

The regulations promulgated by the Commissioner
prescribe a five-step sequential evaluation process for
determining whether a claimant meets the Act’s definition of
disabled. See 20 C.F.R. § 404.1520. The Commissioner’s 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. Barnhart, 335
F.3d 99, 106 (2d Cir. 2003)); accord 20 C.F.R. § 404.1520(a)(4).
If the answer at any of the previously mentioned steps is “no,”
the analysis stops and the ALJ must find that the claimant does
not qualify as disabled under the Act.
“The claimant has the general burden of proving . . .
his or her case at steps one through four of the sequential
five-step framework established in the SSA regulations.”
Burgess, 537 F.3d at 128 (internal quotation marks and citations
omitted). “However, [b]ecause a hearing on disability benefits
is a nonadversarial proceeding, the ALJ generally has an
affirmative obligation to develop the administrative record.”
Id. (internal quotation marks omitted). “The burden falls upon
the Commissioner at the fifth step of the disability evaluation
process to prove that the claimant, if unable to perform her
past relevant work [and considering her residual functional
capacity, age, education, and work experience], 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)). If
the Commissioner finds a combination of impairments, the
Commissioner must also consider whether “the combined effect of
all of [a claimant’s] impairment[s]” establish the claimant’s
eligibility for Social Security benefits. 20 C.F.R. §
404.1523(c); see also 20 C.F.R. § 416.945(a)(2).
II. The ALJ’s Application of the Five-Step Analysis
Using the five-step sequential process to determine
whether a claimant is disabled as mandated by the SSA
regulations, the ALJ made the following determinations.

At step one, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since her alleged onset
date of March 20, 2015. (Tr. at 87.)
At step two, the ALJ determined that plaintiff had the
severe impairments of asthma, obesity, depressive disorder,
attention deficit hyperactivity disorder, and cannabis use
disorder, in remission. (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 CFR Part 404, Subpart P, Appendix 1. (Id.) The ALJ
analyzed whether plaintiff met listings 3.02 (chronic
respiratory disorders), 12.04 (depressive, bipolar and related

disorders), and 12.06 (anxiety and obsessive-compulsive
disorders). (Id. at 87-88.) The ALJ found that the evidence of
chronic respiratory disorders failed to establish the requisite
FEV1 levels under listing 3.02A and the requisite number of
attacks in spite of prescribed treatment and requiring physician
intervention, occurring at least once every two months or at
least six times a year, under listing 3.02B. (Id. at 87-88.)
Additionally, the criteria set forth in paragraph B of Medical
Listings for mental disorders, 12.04 and 12.06, were not
satisfied because the ALJ found that plaintiff had a moderate,
not marked, limitation in understanding, remembering, or

applying information; a mild, not marked, limitation in
interacting with others; a mild, not marked, limitation in
concentrating, persisting, or maintaining pace; and a moderate,
not marked, limitation in adapting or managing herself. (Id. at
88.)
The ALJ next concluded that plaintiff had the residual
functional capacity (“RFC”) to perform a full range of work at
all exertional levels with the nonexertional limitations of
never climbing ladders, ropes, or scaffolds. (Id. at 88.) The
ALJ further concluded that plaintiff: can never work at
unprotected heights but can work around moving mechanical parts
occasionally; can have occasional exposure to dust, odors,
fumes, and pulmonary irritants; can be exposed to moderate

noise; is limited to hearing and understanding simple oral
instructions; is limited to performing simple, routine, and
repetitive tasks; is limited to simple work-related decisions;
can frequently respond appropriately to supervisors and
occasionally interact with coworkers and the public; and is
limited to tolerating few changes in a routine work setting,
which is defined as occasional changes in the work setting.
(Id. at 88-89.)
Plaintiff complained of the following symptoms:
disrupted sleep, feeling down, crying spells, a prior history of
screaming and breaking things prior to a medication change, easy

distraction, difficulty finishing tasks and staying focused,
loss of interest, and anxiety. (Id. at 89.)
In arriving at this RFC, the ALJ accorded varying
weight to the medical opinions, specifically: “great weight” to
the opinion of Dr. Lyudmila Trimba, M.D., a consultative
examiner evaluating plaintiff’s physical impairments; “little
weight” to the opinion of Dr. Yardly Pierre-Jerome Shoulton,
M.D., plaintiff’s treating physician for her physical
impairments; “great weight” to the opinion of Dr. Arlene Broska,
Ph.D., a consultative examiner evaluating plaintiff’s mental
impairments; and “partial weight” to the opinion of Dr. Naira
Ambarian, D.O., plaintiff’s treating physician for her mental
impairments. (Id. at 90-91.)

Upon assessing the medical evidence and opinions, the
ALJ found that plaintiff’s medically determinable impairments
could reasonably be expected to cause her alleged symptoms, but
that plaintiff’s “statements concerning the intensity,
persistence, and limiting effects of these symptoms [were] not
entirely consistent” with the evidence. (Id. at 89.)
At step four, the ALJ concluded that the plaintiff had
no past relevant work experience. (Id. at 91.)
At step five, the ALJ concluded that given plaintiff’s
age, education, work experience, and RFC, jobs existed in
significant numbers in the national economy that plaintiff could

perform. (Id. at 92.) The ALJ supplied the vocational expert
with the above information, who determined that plaintiff could
perform the requirements of representative occupations like
page, mail clerk, or photocopy machine operator. (Id.) The ALJ
thus concluded that plaintiff was not disabled within the
meaning of the Act. (Id. at 93.)
III. The ALJ Erred in Failing to Apply the Treating Physician
Rule to the Opinions of Dr. Ambarian, Plaintiff’s
Treating Physician, but Properly Relied on the Opinions
of Dr. Shoulton, Plaintiff’s Treating Physician

“[A]n ALJ should defer to ‘to the views of the
physician who has engaged in the primary treatment of the
claimant.’” Cichocki v. Astrue, 534 F. App’x 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.
(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)).
“An ‘ALJ who refuses to accord controlling weight to
the medical opinion of a treating physician must consider

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), and the Court accordingly
applies the rule to this case, as plaintiff filed her claim on March 10,
2015. See, e.g., Conetta v. Berryhill, 365 F. Supp. 3d 383, 395 n.5 (S.D.N.Y.
2019).
various factors to determine how much weight to give to the
opinion,’ including: ‘(i) the frequency of examination and the
length, nature and extent of the treatment relationship; (ii)
the evidence in support of the treating physician’s opinion;
(iii) the consistency of the opinion with the record as a whole;
(iv) whether the opinion is from a specialist; and (v) other

factors brought to the Social Security Administration’s
attention that tend to support or contradict the opinion.’” Id.
(quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)).
“The ALJ must then ‘comprehensively set forth his [or her]
reasons for the weight assigned to a treating physician’s
opinion.’” Id. (quoting Burgess, 537 F.3d at 129).
In this analysis, although an ALJ should generally
explain the weight given to each opinion, remand is not required
where application of the proper legal standards would lead to
the same conclusion previously reached. See Zabala v. Astrue,
595 F.3d 402, 409 (2d Cir. 2010). Failure to consider the

opinion of a treating physician “ordinarily requires remand to
the ALJ for consideration of the improperly excluded evidence,
at least where the unconsidered evidence is significantly more
favorable to the claimant than the evidence considered.” Id. at
409. “Remand is unnecessary, however, ‘[w]here application of
the correct legal standard could lead to only one conclusion.’”
Id. (quoting Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998)).
For instance, in Zabala, the court found it was harmless error
to “exclude[] evidence [that was] essentially duplicative of
evidence considered by the ALJ,” as there would be no reasonable
likelihood that consideration of the unconsidered report would
change the outcome. Id. at 409-10 (noting that “[t]he
[unconsidered] report [was] largely identical to a [different]

report by the same doctor, which the ALJ did consider,” and
which set forth substantially identical findings).
The Commissioner argues that the ALJ gave proper
weight to the medical sources and that the ALJ’s decision is
supported by substantial evidence. (See Def. Mem. in Support of
Def.’s Cross-Mot. for J. on the Pleadings (“Def. Mem.”) at 4-10,
ECF No. 12.) Plaintiff contends that the ALJ failed to properly
apply the treating physician rule to the opinions of Drs.
Shoulton and Ambarian. (Pl. Mem. in Support of Pl.’s Mot. for
J. on the Pleadings (“Pl. Mem.”) at 3-4, ECF No. 10.) “The
opinion of a treating physician on the nature or severity of a

claimant's impairments is binding if it is supported by medical
evidence and not contradicted by substantial evidence in the
record.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)
(citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008);
Green–Younger v. Barnhart, 335 F.3d 99, 106–07 (2d Cir. 2003)).
“SSA regulations provide a very specific process for evaluating
a treating physician’s opinion and instruct ALJs to give such
opinions ‘controlling weight’ in all but a limited range of
circumstances.” Greek v. Colvin, 802 F.3d 370, 376 (2d Cir.
2015) (internal citations omitted). First, for the reasons
detailed below in subsection B, infra, the ALJ afforded
appropriate weight and consideration to the opinions of treating
physician Dr. Shoulton.

Second, each of the Burgess factors that ALJ Allen was
required to consider militate in favor of affording Dr.
Ambarian’s opinion greater weight than ALJ Allen afforded. Dr.
Ambarian is a certified specialist who has a years-long
treatment relationship with plaintiff, and has supplied
consistent, well-supported, medical evidence for her opinions.
ALJ Allen only afforded “partial weight,” rather than
“controlling weight,” to claimant’s treating physician because
ALJ Allen concluded that Dr. Ambarian’s opinions were
inconsistent with the substantial objective medical evidence.
(Tr. at 91.) The ALJ procedurally erred when she failed to

explicitly consider the Burgess factors while determining what
weight to afford the opinions and medical evidence from Dr.
Ambarian. See Estrella, 925 F.3d at 96. “Because the ALJ
procedurally erred, the question becomes whether a searching
review of the record...assures the court...that the substance of
the...rule was not traversed—i.e., whether the record otherwise
provides ‘good reasons’ for assigning ‘[some] weight’ to [the
treating physicians’] opinion[s].” See id. (ellipsis in
original) (citing Halloran, 362 F.3d at 32).
Based on the following review of the record, the court
finds that ALJ Allen’s conclusion that plaintiff’s treating
physician’s opinions were inconsistent with the substantial
objective medical evidence was based on the ALJ’s factually

deficient reading of the record. The court remands and directs
ALJ Allen to explicitly consider the Burgess factors and explain
whether and why she affords or does not afford controlling
weight to the opinions of plaintiff’s treating physician Dr.
Ambarian.
A. The ALJ Erred in Considering Dr. Ambarian’s Opinions
ALJ Allen erred in according only “partial weight,”
rather than “controlling weight,” to claimant’s treating
physician of two-and-a-half years, Dr. Ambarian, when ALJ Allen
erroneously concluded that Dr. Ambarian’s opinion was (1)
inconsistent with her own mental status exam findings, (2)

unsupported by other medical record evidence, and (3) internally
inconsistent.
First, the court reviews Dr. Ambarian’s findings to
determine whether they are inconsistent with her own mental
status examination findings. Dr. Ambarian opined, among other
things, that due to her findings demonstrating plaintiff’s mood
disorder and schizophrenia, plaintiff is unable to meet
competitive standards regarding: sustaining an ordinary routine
without special supervision; working in coordination with or
proximity to others without being unduly distracted; accepting
instructions and respond appropriately to criticism from
supervisors; getting along with coworkers or peers without
unduly distracting them or exhibiting behavioral extremes;

dealing with normal work stress; carrying out detailed
instructions; and dealing with the stress of semi-skilled and
skilled work. (Id. at 564.) Dr. Ambarian further opined that
plaintiff has serious limitations in her ability to: maintain
attention for a two-hour segment; maintain regular attendance
and be punctual; sustain an ordinary routine without special
supervision; complete a normal workday and workweek without
interruptions from psychologically based symptoms; perform at a
consistent pace; respond appropriately to changes in a routine
work setting; be aware of normal hazards and take precautions;
understand and remember detailed instructions; set realistic

goals or make plans independently of others; and deal with the
stress of semiskilled and skilled work. (Id.)
The Commissioner argues that Dr. Ambarian’s mental
status examinations were “consistently unremarkable – even on
the very day [Dr. Ambarian] penned the restrictive RFC.” (Def.
Mem. at 7; Tr. at 562-566.) In support, the Commissioner cites
Dr. Ambarian’s assessments that, at times throughout the two-
and-a-half year assessment period, plaintiff had: good hygiene
and grooming; calm and cooperative attitude; bright, stable, and
appropriate mood and affect; no anxiety or agitation; normal
speech; good insight, judgment, and impulse control; and grossly
intact cognition. (Tr. at 493-589.) Contrary to the
Commissioner’s argument, however, the record demonstrates that

Dr Ambarian also assessed that plaintiff suffered from symptoms
of: mood disturbance; difficulty thinking or concentrating;
recurrent and intrusive recollections of a traumatic experience,
which are a source of marked distress but were in remission;
persistent disturbances of mood or affect paranoid thinking or
inappropriate suspiciousness; hallucinations or delusions;
emotional lability; illogical thinking; and easy
distractibility. (Tr. at 562.) Dr Ambarian also assessed that
plaintiff sometimes: felt like somebody was sometimes next to
her, when nobody was, id. at 542; hears voices but cannot
explain what the voices are saying, id. at 542, 547; and talks

to herself, id. at 547. Based on the foregoing review of Dr.
Ambarian’s findings, the court finds that Dr. Ambarian’s
findings were supported by her mental status exam findings.
Consequently, the court finds that Dr. Ambarian’s treatment of
plaintiff over the two-and-a-half year period was explained and
supported by mental status exam findings.
Second, the ALJ erred in concluding that Dr.
Ambarian’s opinions were inconsistent with other medical record
evidence showing that plaintiff had mostly normal mental status
examinations during the period in question. (Tr. at 91.) The
ALJ discredits Dr. Ambarian’s report for an alleged failure to
mention plaintiff’s previous cannabis use based on (1)

commentary from plaintiff’s mother and (2) the findings of
plaintiff’s other treating physician, Dr. Shoulton. (Id. at
91.)
First, the ALJ reasons that plaintiff’s mother
believes that plaintiff’s “excessive marijuana use” is a
“significant source” of plaintiff’s problems. (Id.) However,
plaintiff’s mother’s lay belief is not a medical fact nor
diagnosis that may be considered as medical evidence to
demonstrate an inconsistency with Dr. Ambarian’s medical
opinion. In addition, the record demonstrates that plaintiff’s
relationship with her mother is strained. (Id. at 154.)

Plaintiff testified that, though she and her mother live
together, they did not “really see eye-to-eye all the time,” and
plaintiff has “always been misunderstood by her [mother].”
(Id.) Dr. Ambarian’s counseling had in part been focused on
strategies plaintiff could use to improve plaintiff’s
relationship with her mother. (Id.) Plaintiff testified that
none of Dr. Ambarian’s strategies worked to repair her
relationship with her mother. (Id.)
Second, the Commissioner contends that the records of
plaintiff’s other treating physician, Dr. Shoulton, show that
plaintiff was a “very heavy user of marijuana” and that Dr.
Shoulton diagnosed plaintiff with a history of marijuana

dependence. (Def. Mem. at 7; Tr. at 441, 676.) In one opinion,
Dr. Shoulton notes that “on discussion with the mother[,]
patient admits to cannabis habit” and that plaintiff’s mother
believes that plaintiff’s severe mood swings are related to her
cannabis use. (Tr. at 441.) However, at no point does Dr.
Shoulton arrive at a medical conclusion that plaintiff’s mental
impairments are caused by plaintiff’s history of cannabis use.
(Tr. at 438, 441.) Also, it is unclear from the record how
relevant plaintiff’s history with cannabis use is to her mental
impairments, as the ALJ found that plaintiff’s historical
cannabis use occurred during only a part of the alleged

disability period, from 2014-2015, stopping before May 2015.
(Tr. at 90.) Finally, Dr. Ambarian’s treatment notes do in fact
indicate plaintiff’s history of marijuana use, e.g.: “[history]
of marijuana last use in November 2014.” (Tr. at 547.) Based
on the foregoing review of Dr. Ambarian’s findings, the court
finds that Dr. Ambarian’s findings were not inconsistent with
the other medical evidence indicating plaintiff’s history of
marijuana use. Consequently, the court finds that Dr.
Ambarian’s treatment of plaintiff over the two-and-a-half year
period was not inconsistent with other medical record evidence.
Finally, the ALJ mischaracterizes the evidence in
arriving at the conclusion that Dr. Ambarian’s opinion was
internally inconsistent. To support this finding, the ALJ cites

the finding that plaintiff “takes public transportation,
returned to school with limited success, has a boyfriend, and
goes to the doctor when she is not feeling well.” (Id. at 91.)
Contrary to the ALJ’s selective findings, the record supports
the finding that plaintiff is limited in her ability to perform
daily activities. For example, plaintiff testified that she
stopped attending school after eighth grade and has never had a
full-time job. (Id. at 140, 143.) Plaintiff attempted to
complete a three-month GED program but stopped attending after
one month because she could not concentrate and failed two of
the four required subjects. (Id. at 141, 170.) Though

plaintiff has a boyfriend, they do not often spend time together
outside of plaintiff’s home, and plaintiff does not otherwise
socialize with others. (Id. at 156-58.) The Commissioner
contends that because plaintiff claims to have “babysat” a 17-
year-old with autism and socialized with friends in the past,
plaintiff has the ability to perform basic functions. (Def.
Mem. at 8; Tr. at 545.) Performance of such limited, one-off
activities, however, is not indicative of an ability to perform
sustained work. “[A] finding that a claimant is capable of
undertaking basic activities of daily life cannot stand in for a
determination of whether that person is capable of maintaining
employment, at least where there is no evidence that the
claimant ‘engaged in any of these activities for sustained

periods comparable to those required to hold a sedentary job.’”
Bigler v. Comm'r of Soc. Sec., No. 19-CV-03568 (AMD), 2020 WL
5819901, at *5 (E.D.N.Y. Sept. 29, 2020) (quoting Vasquez v.
Barnhart, No. 02-CV-6751, 2004 WL 725322, at *11 (E.D.N.Y. Mar.
2, 2004). See also Murdaugh v. Sec’y of Dep’t of Health & Human
Servs., 837 F.2d 99, 102 (2d Cir. 1988) (“[T]hat appellant
receives conservative treatment, waters his landlady’s garden,
occasionally visits friends and is able to get on and off an
examination table is scarcely said to controvert the medical
evidence.”); Carroll v. Sec’y of Health & Human Servs., 705 F.2d
638, 643 (2d Cir. 1983).

Dr. Ambarian’s opinion is based on examinations and
sound medical evidence collected over a two-and-a-half-year
period; during that time, plaintiff struggled with her mental
health, and experienced varying levels of improvement and
worsening of her symptoms. (See Tr. at 492-549.) Dr. Broska’s
finding, after a single examination, that plaintiff’s
psychiatric impairments do not appear to be significant enough
to interfere with her ability to function on a daily basis, is
not sufficient, much less substantial, medical evidence to
discount Dr. Ambarian’s well-informed opinion. “ALJs should not
rely heavily on the findings of consultative physicians after a
single examination.” Selian v. Astrue, 708 F.3d 409, 419 (2d
Cir. 2013). An inconsistency between the opinion of a treating

physician and that of a consultative examiner “is not
sufficient, on its own, to reject the opinion of the treating
physician.” Cammy v. Colvin, No. 12-CV-5810, 2015 WL 6029187,
at *14 (E.D.N.Y. Oct. 15, 2015) (quoting Donnelly v. Comm’r of
Soc. Sec., 49 F. Supp. 3d 289, 305 (E.D.N.Y. 2014)). Indeed,
during the course of Dr. Ambarian’s treating relationship with
plaintiff, Dr. Ambarian has noted periods of time where
plaintiff presented minimal signs of mental impairments and
could function on a daily basis, see, e.g., Tr. at 499-504,
similar to the one-off findings of consultative examiner Dr.
Broska. However, such findings must be evaluated in the context

of the other significant deficits and impairments Dr. Ambarian
found during her two-and-a-half-year treatment period, see
supra, which Dr. Broska’s one-time observation could not be
expected to reproduce.
Accordingly, for the reasons stated above, the court
finds that Dr. Ambarian’s opinion was well-supported and
explained by multiple mental status exam findings over a two-
and-a-half year period, and was not contradicted by other
substantial medical evidence. On remand, the ALJ is directed to
explicitly consider the Burgess factors and either afford
controlling weight to Dr. Ambarian’s opinion or explain why she
will not do so.
B. The ALJ Properly Considered Dr. Shoulton’s Opinions

Plaintiff argues that ALJ Allen erred in according
only “little weight,” rather than “controlling weight,” to
claimant’s treating physician, Dr. Shoulton, when ALJ Allen
concluded that Dr. Shoulton’s opinion was internally
inconsistent and also inconsistent with substantial objective
medical evidence. (Pl. Mem. at 3.) The court finds that the
ALJ properly (1) concluded that Dr. Shoulton’s findings are
inconsistent with the other medical record evidence and (2)
considered Dr. Shoulton’s medical findings.
First, in his report, Dr. Shoulton assessed that
plaintiff suffered from only physical limitations despite

providing only a mental diagnosis of impulse control disorder.
(Tr. at 555-560, 646-649.) Dr. Shoulton opined that plaintiff
had the following physical limitations: inability to sit, stand,
or walk; inability to lift or carry weight less than ten pounds;
inability to look down, turn her head right or left, look up, or
hold her head in a static position; inability to twist, stoop,
crouch/squat, climb ladders, or climb stairs. (Id.) However,
plaintiff stipulates that she “reported that she had no physical
limitations, other than walking slower due to her medication.”
(Stip. at 2.) In addition, plaintiff testified that she took
the bus both to the hearing and took the bus daily for a month
when attempting to complete her GED program. (Id. at 140-41.)
At the administrative hearing, plaintiff’s attorney

stated that, according to Dr. Shoulton, plaintiff “suffers from
obesity which limits her ambulation a little bit,” and that
plaintiff’s “main focus is the mental impairments in combination
with the physical.” (Id. at 144.) Plaintiff’s subsequent
testimony focused on her mental impairments only and not her
physical impairments. (Id.) Based on the foregoing review of
Dr. Shoulton’s findings, the court finds that the ALJ accurately
concluded that Dr. Shoulton’s opinions regarding plaintiff’s
physical abilities was inconsistent with substantial evidence in
the record because no evidence in the record supported such
significant physical limitations. Consequently, the court finds

that the ALJ adequately weighed the treating internist Dr.
Shoulton’s medical opinions.
Second, the ALJ properly considered Dr. Shoulton’s
medical records in deciding whether to afford Dr. Shoulton’s
opinion controlling weight. In making her RFC determination,
the ALJ refers to Dr. Shoulton’s medical records as contained in
Exhibit 2F. (Id. at 89-90.) The ALJ referred to Dr. Shoulton’s
findings of: obesity (Tr. at 89, citing 447); normal examination
physical findings (Tr. at 90, citing 429-76); normal mental
status findings (Tr. at 90, citing 429-76); and history of
cannabis use. (Tr. at 90, citing 438.) Plaintiff argues that
the ALJ failed to consider Exhibit 21F, which contained
additional medical records from Dr. Shoulton from December 13,

2013 to July 11, 2017. (Tr. at 644-776.) However, the court
finds that inclusion of these records would not have changed the
ALJ’s RFC determination. For example, notes from a routine
visit with Dr. Shoulton on June 20, 2017, the day before Dr.
Shoulton reported that plaintiff suffered from multiple extreme
physical limitations, state that plaintiff had “been feeling
relatively well” and that plaintiff was not experiencing any
physical limitations. (Id. at 653-54.) The other medical
records in Exhibit 21 do not indicate any significant physical
limitations, and thus do not support Dr. Shoulton’s findings of
extreme physical limitation. Based on the foregoing review of

Dr. Shoulton’s medical records, the court finds nothing in
Exhibit 21F that would have changed the ALJ’s RFC determination.
Consequently, the court finds that the ALJ adequately considered
Dr. Shoulton’s medical records.
III. The ALJ Did Not Sufficiently Account for Plaintiff’s
Moderate Nonexertional Limitations in Her RFC

The ALJ also erred by making an RFC determination
without addressing the vocational expert’s testimony regarding
the hypothetical employability of an individual who (1) would be
off task more than ten percent of the day, (2) absent more than
one day per month, (3) would require four daily reminders to
stay on task, or (4) could not make decisions. (Tr. at 169-70.)
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 this
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,
No. 1:06–CV–0456, 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.”).
Although the ALJ posed four hypotheticals to the
vocational expert, see Tr. at 169-70, the ALJ cites only a
portion of the hypotheticals in issuing her decision. (Tr. at
92-93.) The omission of these hypotheticals requires further
explanation, as the vocational expert testified that none of the
individuals in the omitted hypotheticals would be able to
sustain employment. See Harris v. Commissioner of Social
Security, No. 17-cv-3867, 2020 WL 1941229, at *12 (E.D.N.Y. Apr.

22, 2020).
The Commissioner argues that the ALJ properly relied
on the vocational expert’s testimony because the record does not
establish that plaintiff has the specific limitations provided
in these four hypothetical questions. (Def. Mem. at 10.) The
ALJ’s decision, however, states that “[t]here is evidence of
mild limitation making appropriate decisions, and mild to
moderate limitation relating adequately with others and
appropriately dealing with stress.” (Tr. at 91.) Although the
ALJ found that these impairments do not appear to interfere with
plaintiff’s ability to function on a daily basis, the ALJ should

have considered whether these impairments would prevent
plaintiff from sustaining employment. Without the ALJ's
rationale on these important issues, the court cannot conduct a
meaningful review of the ALJ's decision and cannot conclude that
his errors were harmless. See, e.g., Matthews v. Comm. of Soc.
Sec., No. 1:17-cv-00371-MAT, 2018 WL 4356495, at *4 (W.D.N.Y.
Sept. 13, 2018) (remanding where ALJ failed to provide an
adequate explanation of his assessment of a medical opinion,
thereby “depriving the Court of the ability to perform a
meaningful review”).
Because the ALJ's RFC failed to take into account all
of the evidence of plaintiff's functional limitations, her
determination that plaintiff was capable of performing jobs that

existed in significant numbers in the national economy was not
supported by substantial evidence. On remand, the ALJ must
consider whether plaintiff (1) would be off task more than ten
percent of the day, (2) absent more than one day per month, (3)
would require four daily reminders to stay on task, or (4) could
not make decisions.
CONCLUSION
Federal regulations explicitly authorize a court, when
reviewing decisions of the SSA, to order remand for 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.
Charter, 94 F.3d 34, 39 (2d Cir. 1996) (internal quotation marks
omitted). Remand is particularly appropriate where further
findings or explanation will clarify the rationale for the ALJ’s
decision. Pratts, 94 F.3d at 39.
For the reasons set forth above, plaintiff’s motion
for judgment on the pleadings is granted in part; defendant’s
cross-motion for judgment on the pleadings is denied; and this

case is remanded for further proceedings consistent with this
Memorandum and Order. The Clerk of Court is respectfully
directed to close this case and enter judgment in favor of
plaintiff.

SO ORDERED.
Dated: March 4, 2021
Brooklyn, New York

/s/
HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305758. Public record. Not legal advice.