The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PAUL BROWN,
Plaintiff, MEMORANDUM AND ORDER
Case No. 20-CV-5225-FB
-against-
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant.
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Appearances:
For the Plaintiff: For the Defendant:
CHRISTOPHER JAMES BOWES SOPHIE DOROBA
54 Cobblestone Drive Special Assistant U.S. Attorney
Shoreham, New York 11786 601 East 12th Street, Room 965
Kansas City, Missouri 64106
BLOCK, Senior District Judge:
Paul Brown seeks review of the final decision of the Commissioner of Social
Security (“Commissioner”) denying his application for disability benefits (“DIB”)
and supplemental security income (“SSI”). Both parties move for judgment on
the pleadings. For the following reasons, Brown’s motion is granted, the
Commissioner’s is denied, and the case is remanded for a calculation of benefits.
I
Brown, who was born in 1987, lost the use of his right eye when he was 17.
He first applied for DIB and SSI in 2014, based principally on his eye impairment,
migraines, hypertension, and major depressive disorder. An administrative law
judge (“ALJ”) denied his claim, but the Commissioner’s Appeals Council
remanded for consideration of a report from Brown’s treating psychiatrist.
Brown appeared for a hearing before another ALJ in 2019. The ALJ found
that Brown could understand, remember, and carry out simple and routine tasks.
but could not manipulate small objects (such as threading a needle or organizing
currency) or work around moving mechanical machinery or unprotected heights.
Based on that assessment of Brown’s residual functional capacity (“RFC”), he
found that Brown could work as a bagger, locker room attendant, or cafeteria
attendant. He therefore denied Brown’s claim.
Brown again requested review by the Appeals Council. This time,
however, the Appeals Council denied review, making the ALJ’s decision the final
decision of the Commissioner. This action timely followed.
II
“In reviewing a final decision of the Commissioner, a district court must
determine whether the correct legal standards were applied and whether substantial
evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.
2004); see also 42 U.S.C. § 405(g). “[S]ubstantial evidence . . . means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Selian v.
Astrue, 708 F.3d 409, 417 (2d Cir. 2013).
III
The ALJ’s conclusion that Brown could understand, remember, and carry
out simple and routine tasks is inconsistent with the opinion of Dr. Titus Okunlola,
a board-certified neurologist and psychiatrist who treated Brown for his
depression. In a report dated November 4, 2015, Dr. Okulnola identified no less
than 24 symptoms of Brown’s depression, including “Poor memory,” “Difficulty
thinking or concentrating,” “Oddities of thought, perception, speech or behavior,”
“Time or place disorientation,” and “Illogical thinking or loosening of
associations.” AR 596. Based on those symptoms, Dr. Okunlola concluded that
Brown would be “moderately limited” in his ability to “understand and remember
one or two step instructions” and “markedly limited” in his ability to “understand
and remember detailed instructions.” AR 598. He further opined that Brown
would be “markedly limited” in his ability to carry out both simple and detailed
instructions. AR 598. Indeed, of the 17 work-related abilities identified in the
report, Dr. Okunlola concluded that Brown would be “markedly limited” in 15 and
“moderately limited” in two (the aforementioned ability to “understand and
remember one or two step instructions” and the ability to “sustain ordinary routine
without supervision”). AR 598-99.
The ALJ acknowledged Dr. Okunlola’s report and gave it “some weight,”
but ultimately decided that “the other evidence in the case does not support such
profound limitations.” AR 17. This was error.
The ALJ did not identify any contrary evidence regarding Brown’s
psychiatric symptoms. Indeed, the bulk of the psychiatric evidence came from
Dr. Okunlola, who is obviously in the best position to judge the limiting effects of
the symptoms he observed.
Moreover, Dr. Okunlola’s report is the only opinion evidence from a medical
expert regarding Brown’s work-related limitations. “[I]t is well-settled that the
ALJ cannot arbitrarily substitute his own judgment for competent medical
opinion.” Balsamo v. Chater, 142 F3d 75, 81 (2d Cir. 1998) (citation and internal
quotation marks omitted)). “[W]hile an ALJ is free to resolve issues of credibility
as to lay testimony or to choose between properly submitted medical opinions, he
is not free to set his own expertise against that of a physician who submitted an
opinion to or testified before him.” Id. (citation, internal quotation marks and
alterations omitted). Thus, the ALJ was obliged to accept Dr. Okunlola’s
opinions or to adduce another expert opinion. He did neither.
It remains to decide whether to remand for further proceeding or for
calculation of benefits only. When a district court’s decision is based “solely on
the [Commissioner]’s failure to sustain his burden of adducing evidence of the
claimant’s capability of gainful employment,” remand for calculation of benefit is
the appropriate remedy. Carroll v. Sec’y of Health & Human Servs., 705 F.2d
638, 644 (2d Cir. 1983).
The record as it stands is clear that Brown is precluded from any gainful
employment. Despite a remand from the Appeals Council to address Brown’s
depression, the ALJ never availed himself of the opportunity to order a
consultative psychiatric examination that might have contradicted Dr. Okunlola’s
opinions. The Court declines to further prolong these already protracted
proceedings
IV
For the foregoing reasons, Brown’s motion is granted, the Commissioner’s
motion is denied, and the case is remanded for a calculation of benefits.
SO ORDERED.
_/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
July 21, 2022