# Frey v. Commissioner of the Social Security Administration

> District Court, N.D. New York · February 19, 2020

URL: https://www.frixlaw.com/law-library/cases/10312560

## Case

- **Court:** District Court, N.D. New York
- **Decided:** February 19, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOUNRITTHEEDR SNT DAITSETSR DICISTT ORFIC NTE CWO YUORRTK
______________________________________________________________________
BRITTANY F.,
Plaintiff,
v. 1:18-CV-1365
(ATB)

COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant.
______________________________________________________________________
JOSEPHINE GOTTESMAN, ESQ., for Plaintiff
JEAN M. DEL COLLIANO, Special Asst. U.S. Attorney for Defendant
ANDREW T. BAXTER, U.S. Magistrate Judge
MEMORANDUM-DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in
accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.
Local Rule 73.1, and the consent of the parties. (Dkt. Nos. 4, 7).
I. PROCEDURAL HISTORY
On June 1, 2015, plaintiff filed concurrent applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”), alleging disability
beginning April 1, 1992. (Administrative Transcript (“T”) 147-54, 176). Plaintiff’s
applications were denied initially on September 2, 2015. (T. 50-81). Plaintiff requested
a hearing, which was held before Administrative Law Judge (“ALJ”) Arthur Patane on
October 26, 2017. (T. 35-49, 84-85). On January 8, 2018, the ALJ issued an order
denying plaintiff’s applications. (T. 10-17). The ALJ’s decision became the
Commissioner’s final decision when the Appeals Council denied plaintiff’s request for
review on September 27, 2018. (T. 1-3).
II. GENERALLY APPLICABLE LAW
A. Disability Standard
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI
disability benefits must establish that he is “unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which

can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In
addition, the plaintiff’s
physical or mental impairment or impairments [must be] of such severity
that he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections
404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
1Plaintiff initially presented for an administrative hearing on July 6, 2017, however the
proceeding was adjourned in order for plaintiff to obtain representation. (T. 28-32).
nsiegxnti fciocnasnitdlye rlsi mwihtse thhiesr p thhyes ciclaailm oarn mt ehnatsa al a“bseilviteyr et oi mdop abiarmsiecn wt”o wrkhich
activities. If the claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has an impairment
which meets or equals the criteria of an impairment listed in Appendix 1 of
the regulations. If the claimant has such an impairment, the
[Commissioner ] will consider him disabled without considering
vocational factors such as age, education, and work experience . . . .
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe impairment, he has the
residual functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,
416.920. The plaintiff has the burden of establishing disability at the first four steps.
However, if the plaintiff establishes that her impairment prevents her from performing
her past work, the burden then shifts to the Commissioner to prove the final step. Id.
B. Scope of Review
In reviewing a final decision of the Commissioner, a court must determine
whether the correct legal standards were applied and whether substantial evidence
supported the decision. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Brault v.
Soc. Sec. Admin, Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012). It must be “more than a scintilla” of evidence scattered throughout the
administrative record. Id. However, this standard is a very deferential standard of
review “ – even more so than the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from
both sides, because an analysis of the substantiality of the evidence must also include
that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its
interpretation of the administrative record for that of the Commissioner, if the record
contains substantial support for the ALJ’s decision. Id. See also Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting evidence

in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ
explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ
cannot “‘pick and choose’ evidence in the record that supports his conclusions.” Cruz
v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.
09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
III. FACTS
Plaintiff was twenty-five years old on the date of the administrative hearing. (T.
36). She lived in a second floor apartment at her parent’s home, for which she paid rent

with disability benefits. (T. 39). Plaintiff received special education services in high
school, and graduated with a Regent’s Diploma. (T. 38).
Plaintiff was employed by three different companies at the time of the hearing,
however only one actively scheduled her to work. (T. 36-37). Plaintiff worked four to
eight hours per month serving concessions at Times Union Center. (T. 37-38). One of
her other employers stopped giving her work when she “messed up” on the job, and
they discovered that she was autistic. (Id.). She was also employed as a bagger at Price
Chopper, but was not receiving hours from them at the time of the hearing. (T. 47-48).
Plaintiff was in the process of applying for other jobs, and had obtained vocational
services through Access VR. (T. 38, 42). According to the plaintiff, her job coach
believed she could work a part-time position where she was “very comfortable.” (T.
42). Plaintiff had never been employed full-time. (Id.).
Plaintiff was diagnosed with autism, and suffered from anxiety and depression.
(T. 40). Her depression often caused her to experience extreme exhaustion, making it

difficult to work. (T. 40-41). She treated with medical management, as well as
counseling. (T. 41). It was difficult for plaintiff to leave her house, as she was
“sometimes scared of the outside world.” (T. 43). Her anxiety was triggered when
strangers got too close to her. (T. 44). Plaintiff socialized with friends primarily
through a shared interest of making costumes and attending cosplay conventions. (T.
44-45). Plaintiff attended such events both locally and out of state; estimating that
approximately 1,000 people or more attended the three- to four-day events. (T. 45). As
of the date of the hearing, she had attended more than 20 conventions in her lifetime;
noting that her recent anxiety and depression symptoms had made it more difficult. (T.

46). Plaintiff further testified that she found the role-playing aspect of these events to
be therapeutic, as she could “pull away” from herself for that period of time. (T. 47).
IV. THE ALJ’S DECISION
After reviewing the procedural history of the plaintiff’s application and stating
the applicable law, the ALJ found that plaintiff had not engaged in substantial gainful
activity (“SGA”) since her disability onset date. (T. 13). At step two of the sequential
evaluation, the ALJ found that plaintiff had the following severe impairments: obesity;
anxiety, depression, and autism. (Id.). At step three of the evaluation, the ALJ found
that plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of a Listed Impairment. (Id.). In making this
determination, the ALJ considered Listings 12.04 (Depressive, Bipolar, and Related
Disorders) and 12.06 (Anxiety and Obsessive-Compulsive Disorders), but found that
plaintiff’s mental impairments failed to satisfy the paragraph (B) criteria.
At step four, the ALJ found that plaintiff had the RFC for medium work as

defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), except that she was limited to
performing simple, routine work with frequent, never consistent, interaction with the
public and co-workers. (T. 15).
Next, the ALJ found that plaintiff had no past relevant work. (T. 16). However,
after considering plaintiff’s age, education, work experience, and RFC; and relying on
the Medical Vocational Guidelines (“Grids”) and SSR 85-15; the ALJ concluded that
jobs existed in significant numbers in the national economy that plaintiff could perform.
(T. 16). Accordingly, the ALJ determined that plaintiff was not disabled though the date
of his decision. (T. 28).

V. ISSUES IN CONTENTION
Plaintiff raises many arguments in contention, alleging legal error at almost every
step of the ALJ’s analysis. The Commissioner contends that the ALJ’s decision was

2 Although plaintiff did perform some work activity after her disability onset date, the work did
not rise to the level of SGA. (T. 13).
legal standards. For the following reasons, the court agrees that the ALJ erred in

several aspects of his disability analysis, compelling remand for further administrative
proceedings consistent with this opinion.
DISCUSSION
VI. LISTED IMPAIRMENT
A. Legal Standard
At step three of the disability analysis, the ALJ must determine if plaintiff suffers

from a listed impairment. See 20 C.F.R. §§ 404.1520, 416.920. It is the plaintiff’s
burden to establish that his or her medical condition or conditions meet all of the
specific medical criteria of particular listed impairments. Pratt v. Astrue, No. 7:06-CV-
551, 2008 WL 2594430, at *6 (N.D.N.Y. June 27, 2008) (citing Sullivan v. Zebley, 493
U.S. 521, 530 (1990)). If a plaintiff’s “impairment ‘manifests only some of those

criteria, no matter how severely,’ such impairment does not qualify.” Id. In order to
demonstrate medical equivalence, a plaintiff “must present medical findings equal in
severity to all the criteria for the one most similar listed impairment.” Sullivan v.
Zebley, 493 U.S. at 531 (emphasis added).
B. Application
Plaintiff argues that the ALJ failed to consider Listing 12.10 (Autism Spectrum

Disorder) in his step three analysis. Plaintiff further disputes the ALJ’s finding that
plaintiff did not meet the paragraph (B) criteria of the mental listings he did consider.
(Plaintiff’s Brief (“Pl.’s Br.”) at 20) (Dkt. No. 11). Defendant maintains that the ALJ
marked limitations in the four relevant domains precluded plaintiff from meeting any of
the disputed listings. (Defendant’s Brief (“Def.’s Br.”) at 4-7) (Dkt. No. 12).
In order to satisfy his burden at step three, a plaintiff “must offer medical
findings equal in severity to all requirements, which findings must be supported by
medically acceptable clinical and laboratory diagnostic techniques.” Knight v. Astrue,
32 F. Supp 3d 210, 218 (N.D.N.Y. 2012) (citing 20 C.F.R. § 416.926(b)). In turn, “the

ALJ must consider all relevant evidence in [the] case record” in determining whether a
listing has been met or equaled under step three. Graf v. Berryhill, No. 3:18-CV-93,
2019 WL 1237105, at *4 (D. Conn. Mar. 18, 2019) (other citations omitted).
“Additionally, the ALJ is required to articulate the specific reasons justifying his
decision that the claimant does or does not meet the relevant listing.” Id. It is well

settled that “[w]here the claimant’s symptoms as described by medical evidence appear
to match those described in the Listings, the ALJ must explain a finding of ineligibility
based on the Listings.” Kovacevic v. Chater, No. 94-CV-600, 1995 WL 866425, at *8
(W.D.N.Y. Sept. 28, 1995) (citing Booker v. Heckler, No. 83 Civ. 5300, 1984 WL 622,
at *3 (S.D.N.Y. July 19, 1984)); see also Kerr v. Astrue, No. 09–CV–01119 (GLS),
2010 WL 3907121, at *3–5 (N.D.N.Y. Sept.7, 2010); Davis v. Astrue, No. 6:09-CV-

186 (LEK/GHL), 2010 WL 2545961, at *3–5 (N.D.N.Y. June 3, 2010).
As previously discussed, the ALJ considered two listed impairments at step three
of his analysis: 12.04 (Depressive, Bipolar, and Related Disorders) and 12.06 (Anxiety
and Obsessive-Compulsive Disorders). (T. 13). To meet both listings, plaintiff was
and C. 20 C.F.R. § 404, Subpart P, App. 1, Listings 12.04, 12.06. The paragraph A
criteria requires medical documentation of the relevant disorder, while the paragraph
(B) criteria requires extreme limitation of one area or a marked limitation of two areas
of mental functioning, which include (1) understanding, remembering or applying
information; (2) interacting with others; (3) concentrating, persisting or maintaining
pace; and (4) adapting or managing oneself. Id. Paragraph C requires a medically

documented history of the existence of the disorder over a period of at least two years,
with evidence of both (a) medical treatment, mental health therapy, psychosocial
support(s), or a highly structured setting(s) that is ongoing and that diminishes the
symptoms and signs of the mental disorder; and (b) marginal adjustment, that is,
minimal capacity to adapt to changes in environment or to demands that are not already

part of daily life. Id.3
At the outset, the court agrees that the ALJ failed to consider the relevant listing
12.10 (Autism Spectrum Disorder) in his decision. To meet this listing, plaintiff was
required to establish the criteria of paragraphs (A) and (B). 20 C.F.R. § 404, Subpart P,
App. 1, Listings 12.10. However, as the Commissioner correctly notes, the paragraph
(B) criteria for listing 12.10 are identical to the paragraph (B) criteria for listings 12.04

and 12.06, which were considered by the ALJ and found deficient for purposes of

3The parties do not appear to dispute the ALJ’s implied finding that plaintiff met the paragraph
(A) criteria of both listings. Furthermore, plaintiff does not raise any objection to the ALJ’s finding
that plaintiff did not meet the paragraph (C) criteria. Thus, the court limits the scope of its analysis to
whether the ALJ’s paragraph (B) determination is supported by substantial evidence.
substantial evidence, any error in omitting consideration of listing 12.10 would have
been harmless.
To that end, the ALJ found that plaintiff had moderate limitations in the four
broad areas of functioning; ultimately concluding that the paragraph (B) criteria were
not satisfied. However, the ALJ failed to adequately “address or explain why he
rejected substantial conflicting record evidence [at step three], and in failing to do so

committed legal error.” Cepeda v. Berryhill, No. 18 Civ. 7304, 2019 WL 7483937, at
*14 (S.D.N.Y. Dec. 12, 2019), report and recommendation adopted, 2020 WL 58236
(S.D.N.Y. Jan 6, 2020); see also Briest v. Comm’r of Soc. Sec., No. 5:07-CV-121 (FJS),
2010 WL 5285307, at *3 (N.D.N.Y. Dec. 17, 2010) (remand warranted where “in
reaching his decision with regard to [paragraph (B)], the ALJ neither cited medical

evidence to explain his findings nor addressed contradictory medical evidence.”);
Szarowicz v. Astrue, No. 11-CV-277S, 2012 WL 3095798, at *5 (W.D.N.Y. July 30,
2012) (“It is particularly important for an ALJ to specifically address conflicting
probative evidence with respect to the step three analysis, because a claimant whose
condition meets or equals that of a Listing is deemed disabled per se and eligible to
receive benefits.”).

Of particular concern is the ALJ’s paragraph (B) analysis pertaining to
interacting with others and the ability to adapt or manage oneself. In support of his
conclusion that plaintiff was moderately limited in interacting with others, the ALJ only
cited to inconsistencies in plaintiff’s description of her own social functioning, with the
medical providers. (T. 13-14). While there may be inconsistencies in plaintiff’s
description of her social abilities, plaintiff’s struggles to interact with others are
consistently displayed throughout the record. In January 2016, plaintiff presented for
an initial neurodevelopmental evaluation at the requests of her primary care providers
due to concerns with communication and behavior. (T. 544). After administering a
battery of tests, the examiner concluded that plaintiff “struggles significantly to

communicate her affect and exhibits very limited insight into social relationships,” and
further that “[h]er conversational ability is limited in range and reciprocity.” (T. 505).
In the same vein, consultative psychologist Arlene Broska, Ph.D. opined that plaintiff
suffered from moderate to marked limitations for relating adequately with others
without support. (T. 502). Although plaintiff participated in a community cosplay

group, Dr. Broska noted that plaintiff’s mother had to accompany her to these events, as
plaintiff’s “social judgment is not always accurate and [plaintiff] could potentially get
herself into dangerous situations.” (T. 501). As a pre-teen, plaintiff experienced a
similar situation when she attempted to make “friends” over the internet and exchanged
inappropriate pictures; resulting in police involvement. (T. 501). Dr. Broska further
noted plaintiff’s inability to make eye contact throughout the first half of the

consultative examination. (T. 500). Plaintiff also exhibited aprosodic4 speech at
various times throughout the examination, although she quickly corrected herself. (T.

4Aprosodia is a disorder characterized by the inability to express or comprehend affective or
nonaffective tonal aspects of speech. See https://www.medlink.com/article/aprosodia.
decision, the ALJ failed to address Dr. Broska’s opined social limitations in his step
three analysis, much less explain his basis for adopting a less extreme limitation than
Dr. Broska found in her medical source statement.
Moreover, the ALJ determined that plaintiff had moderate limitations in her
ability to adapt or manage herself. (T. 14). In support of his conclusion, the ALJ once
again relied on inconsistencies in plaintiff’s own description of her limitations. (Id.).

The ALJ further cited generally to “objective evidence in the record” showing that
claimant had appropriate grooming and hygiene, and no problem getting along well
with providers. (T. 14). Once again, this analysis was deficient to the extent the ALJ
neglected to examine or explain away the probative evidence of record documenting
plaintiff’s significant limitations in this domain. For example, Dr. Broska noted that

plaintiff was unable to manage her own money without assistance. (T. 502).
Moreover, plaintiff’s “apartment” was the second floor of her family’s home, and Dr.
Broska indicated that plaintiff was “not yet able to maintain a household
independently.” (T. 501). Plaintiff did not have a driver’s license because she was
scared to drive. (T. 404). Plaintiff reported to Dr. Broska that when she gets excited,
“she will run from one end of the house to the other and hop[,] clench her fist and tense

her body.” (T. 499). She occasionally rocked. (Id.). Moreover, despite her providers
noting that she exhibited appropriate grooming and hygiene, plaintiff represented that
she needed reminders to change her underclothes, bathe, and wash her hands at the
appropriate time. (T. 402-03).
evidence supporting the ALJ’s step three analysis is found in other sections of the
ALJ’s decision, namely the step four RFC analysis. It is well settled that “[a]n ALJ’s
[step three determination based on a deficient analysis] may be upheld where other
portions of the decision and other ‘clearly credible evidence’ demonstrate that the
conclusion is supported by substantial evidence.” Ryan v. Astrue, 5 F. Supp. 3d 493,
507 (S.D.N.Y. 2014) (citation omitted). However, in this case, the ALJ’s failure to

reconcile the conflicting evidence at step three, coupled with the ALJ’s flawed RFC
assessment and evident failure to develop the record (See Point VII, supra), prevents
this court from determining whether the ALJ’s step three determination is supported by
substantial evidence. Thus, remand is warranted so that the ALJ may address the
conflicting evidence of record and adequately explain his reasoning as to why plaintiff

meets or does not meet the paragraph (B) criteria of all the relevant listed impairments.
See Flake v. Comm’r of Soc. Sec., No. 7:15-CV-1128 (GTS/WBC), 2016 WL 7017355,
at *6 (N.D.N.Y. Nov. 10, 2016) (“There is conflicting evidence in the record regarding
whether Plaintiff met the criteria for [the relevant listing,] and because the ALJ failed to
discuss this conflicting evidence, at step three or elsewhere, it cannot be determined
whether the ALJ’s conclusion at step three is supported by substantial evidence.”).

VII. RFC/WEIGHING EVIDENCE/DUTY TO DEVELOP RECORD
A. Legal Standards
1. RFC
RFC is “what [the] individual can still do despite his or her limitations.
activities in an ordinary work setting on a regular and continuing basis. . . .” A “regular
and continuing basis” means eight hours a day, for five days a week, or an equivalent
work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2
(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)
(quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v. Berryhill, No. 5:17-CV-
00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018); Tankisi v.

Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.
Supp. 3d 349, 361 (N.D.N.Y. 2016).
In rendering an RFC determination, the ALJ must consider objective medical
facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s
subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R.

§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)
(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.
Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL 587459, at *8 (N.D.N.Y. Feb 13, 2019);
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An ALJ must specify the functions
plaintiff is capable of performing, and may not simply make conclusory statements
regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241, 267

(N.D.N.Y. 2010); Martone v. Apfel, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler,
728 F.2d 582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183, Stephens v.
Colvin, 200 F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v. Comm’r of Soc. Sec.,
307 F. Supp. 2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must also include a
citing specific medical facts, and non-medical evidence. Natashia R. v. Berryhill, No.
3:17-CV-01266 (TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing
SSR 96-8p, 1996 WL 374184, at *7).
2. Weighing Evidence
In making a determination, the ALJ weighs all the evidence of record and
carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL

374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues
are not “medical issues,” but are “administrative findings.” The responsibility for
determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL
374183, at *2. These issues include whether the plaintiff’s impairments meet or equal a
listed impairment; the plaintiff’s RFC; how the vocational factors apply; and whether

the plaintiff is “disabled” under the Act. Id.
In evaluating medical opinions on issues that are reserved to the Commissioner,
the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The
ALJ must clearly state the legal rules that he applies and the weight that he accords the
evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL 3776382, at *2
(S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324, 2012 WL

3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).
3. Duty to Develop the Record
Given the remedial intent of the Social Security statute and the non-adversarial
nature of benefits proceedings, an ALJ has an affirmative duty, even if the claimant is
Apfel, 167 F.3d 770, 774 (2d Cir. 1999); 20 C.F.R. §§ 404.1512 (d), 416.912(d) (“We
will make every reasonable effort to help you get medical reports from your own
medical sources when you give us permission to request the reports.”). Furthermore,
“[t]he duty of an ALJ to develop the record is ‘particularly important’ when obtaining
information from a claimant’s treating physician due to the ‘treating physician’
provisions in the regulations.” Dickson v. Astrue, No. 1:06-CV-511 (NAM/GHL), 2008

WL 4287389, at *13 (N.D.N.Y. Sept.17, 2008).
In furtherance of the duty to develop the record, an ALJ may re-contact medical
sources if the evidence received from the treating physician or other medical sources is
inadequate to determine disability, and additional information is needed to reach a
determination. 20 C.F.R. §§ 404.1512(e), 416.912(e).5 Although the ALJ must attempt

to fill in any “clear gaps” in the administrative record, “where there are no obvious gaps
. . . and where the ALJ already possesses a ‘complete medical history,’” the ALJ is
under no obligation to seek additional information. Rosa v. Callahan, 168 F.3d at 79,
n.5.
B. Application

Plaintiff argues that the ALJ’s RFC evaluation did not account for the full
5 Effective March 26, 2012, the Commissioner amended these regulations to remove former
paragraph (e) and the duty it imposed on ALJs to re-contact a disability claimant’s treating physician
under certain circumstances. The current regulations apply to plaintiff’s case. See Jimenez v. Astrue,
No. 12 Civ. 3477, 2013 WL 4400533, at *11 (S.D.N.Y. Aug. 14, 2013) (noting that even though the
regulations were amended to remove the provision requiring the ALJ to recontact a treating physician
to resolve an ambiguity in the record, the regulations still “contemplate the ALJ recontacting the
treating physicians when ‘the additional information needed is directly related to that source’s medical
opinion’”).
further administrative proceedings. (Pl.’s Br. at 25-26). Moreover, plaintiff contends
that the ALJ failed to fully develop the administrative record, rendering his step four
analysis further flawed. (Id. at 26-27). The Commissioner asserts that the ALJ’s RFC
is supported by substantial evidence. (Def.’s Br. 7-17).
The only opinion evidence of record is that of consultative psychologist Dr.
Broska, based on her one-time examination of plaintiff on August 19, 2015. (T. 498-

502). The court discussed several of Dr. Broska’s findings upon examination in the
previous section of this decision. In addition, Dr. Broska stated that plaintiff’s
demeanor and responsiveness to questions was cooperative, and her manner of relating,
social skills, and overall presentation were fair. (T. 500). Dr. Broska noted that “[it]
appeared [plaintiff] was trying very hard during the evaluation to interact with the

examiner in a socially correct manner.” (Id.). Plaintiff exhibited an anxious affect and
neutral mood, with fair insight and judgment. (T. 500-01).
Based on her examination of the plaintiff, Dr. Broska opined that there was no
evidence plaintiff was limited in her ability to follow and understand simple directions
and instructions or perform simple tasks independently. (T. 501). She also found that
plaintiff had no limitation for attention, concentration or memory, or maintaining a

regular schedule. (T. 502). There was, however, evidence for moderate limitations for
making appropriate decisions. (Id.). Last, Dr. Broska opined that plaintiff exhibited
“moderate to marked” limitations for performing complex tasks consistently without
support, relating adequately with others without support, and appropriately dealing with
In his written decision, the ALJ acknowledged Dr. Broska’s opinion and afforded
it “great weight,” based on its “consisten[cy] with the overall evidence, that shows
infrequent treatment and improvement with routine care, as well as the examination
results.” (T. 15).
Despite the great weight afforded to Dr. Broska’s opinion, the ALJ failed to
adequately account for plaintiff’s moderate to marked limitations in dealing with stress

in his RFC assessment, an error requiring remand. “[B]ecause stress is ‘highly
individualized,’ [and] mentally impaired individuals ‘may have difficulty meeting the
requirements of even so-called “low-stress[ ] jobs,” ’ . . . the Commissioner must . . .
make specific findings about the nature of a claimant’s stress, the circumstances that
trigger it, and how those factors affect his [or her] ability to work.” McCann v. Comm’r

of Soc. Sec., No. 1:18-CV-472, 2020 WL 207134, at *3 (W.D.N.Y. Jan. 13, 2020)
(quoting Collins v. Colvin, No. 15-CV-423, 2016 WL 5529424, at *3 (W.D.N.Y. Sep.
30, 2016) (other citations omitted)). “Although a particular job may appear to involve
little stress, it may, in fact, be stressful and beyond the capabilities of an individual with
particular mental impairments.” Id. (citing Welch v. Chater, 923 F. Supp. 17, 21
(W.D.N.Y. 1996)). Thus, “[a]n ALJ is required to specifically inquire into and analyze a

claimant’s ability to manage stress.” Id. (citing Collins, 2016 WL 5529424, at *3). “An
ALJ’s failure to explain or account for stress limitations in the RFC—particularly when
opined by an acceptable medical source given great weight—is an error that requires
remand.” Id. (citing Booker v. Colvin, No. 14-CV-407S, 2015 WL 4603958, at *3
In this case, despite affording Dr. Broska’s opinion great weight, the ALJ’s RFC
assessment neither addresses nor expressly accounts for plaintiff’s specific stress
limitation as set out by Dr. Broska’s opinion. Despite the Commissioner’s argument to
the contrary, the ALJ’s RFC assessment limiting plaintiff to simple, routine work does
not account for the factors influencing Plaintiff’s ability to handle stress at work. See
Id. at *4. The ALJ did not make the requisite specific findings about the nature of

Plaintiff’s stress, the circumstances that trigger it, and how those factors affect her
ability to work. Thus, the ALJ’s RFC assessment was not supported by substantial
evidence. See id. (citing Corbeil v. Saul, No. 17-CV-01321, 2019 WL 2590606, at *6
(W.D.N.Y. June 25, 2019)) (remand necessary as the ALJ “was required to do more
than merely limit [the plaintiff’s] RFC to simple work” where doctors had identified

moderate limitations in dealing with stress); Cooley v. Berryhill, No. 6:16-CV-06301,
2017 WL 3236446, at *12 (W.D.N.Y. July 31, 2017) (although ALJ’s RFC assessment
limited Plaintiff to simple, unskilled work, remand required as “the ALJ did not
expressly discuss how Plaintiff’s stress limitations were incorporated into the ALJ’s
RFC finding”); Booker, 2015 WL 4603958, at *3 (remand required “for the ALJ to
consider the extent, if any, that Plaintiff’s difficulties with stress impact his ability to

perform the non-exertional demands of unskilled, competitive, remunerative work on a
sustained basis”).
As a separate matter, the court seriously questions whether the ALJ’s RFC for
social interaction is supported by substantial evidence. Dr. Broska’s opinion stated that
others without support. Although the ALJ did not acknowledge this opined limitation
in his step four analysis, he nevertheless afforded Dr. Broska’s opinion “great weight,”
without any noted exceptions. (T. 15). The ALJ then went on to craft an RFC that
limited plaintiff to “frequent, never consistent, interaction with the public and co-
workers.” (Id.). The courts in this Circuit have inconsistently ruled on whether a
moderate limitation for interacting with others is substantial evidence supporting

claimant’s ability to perform work requiring frequent social interaction. Compare
Wightman v. Comm’r of Soc. Sec., No. 18-CV-6295L, 2019 WL 2610712, at *2
(W.D.N.Y. June 26, 2019) (“ALJ’s finding that plaintiff’s moderate limitation in social
interaction permits him to tolerate “frequent” contact with supervisors, coworkers and
the public was not erroneous.”); with Nelson v. Comm’r of Soc. Sec., No. 8:14-CV-0983

(GTS), 2015 WL 3936939, at *6 (N.D.N.Y. June 26, 2015) (acknowledging remand
was warranted because the “great weight” afforded to medical opinion that plaintiff
had moderate limitations in her ability to interact with others did not correspond to the
ALJ’s step four decision that plaintiff could perform past work requiring frequent
interaction with others). However, in this case Dr. Broska opined that plaintiff suffered
“moderate to marked” limitations in this area, and the ALJ failed to adequately

reconcile his RFC conclusion with her opinion, or the other medical evidence of record,
to support his finding that plaintiff maintained the ability to engage in frequent
interaction with the public and co-workers. Accordingly, and in the absence of any
testimony from a vocational expert that could have, conceivably, rendered this error
and prepare an RFC that is supported by substantial evidence in the record.
Last, it appears that the ALJ erred in failing to adequately develop the record
with plaintiff’s complete mental health treatment history. At the administrative hearing,
plaintiff testified that she was seeing a mental health provider for psychotherapy twice a
month.6 (T. 41). Moreover, plaintiff’s treatment records indicate that she previously
attended therapy with a social worker, and had a “pending appointment with a

psychiatrist.” (T. 471). Despite these indications that plaintiff received some form of
mental health treatment during the relevant disability period, there are no records from
such mental health providers in the administrative record, nor any indication of the
extent of treatment plaintiff received in the past. The ALJ had a duty to review the
records of plaintiff’s providers for her mental health impairments before reaching a

conclusion regarding plaintiff’s mental health limitations, especially considering the
dearth of mental health treatment records in evidence.7 Upon remand, the ALJ is
instructed to further develop the medical evidence to include plaintiff’s complete
history of mental health treatment. See Parker v. Colvin, No. 3:13-CV-1398, 2015 WL
928299, at *13 (D. Conn. Mar. 4, 2015) (remand warranted where record did not
include relevant mental health treatment records, despite the ALJ relying on

inconsistencies in the longitudinal treatment record and noting that plaintiff had
6At the time of the administrative hearing, plaintiff was actively treating at the Center for
Disability Services, where she had attended four therapy sessions to date. (T. 41).
7The medical treatment records included in the administrative record are almost exclusively
progress notes from plaintiff’s primary care physicians, with the exception of a January 28, 2016 initial
neurodevelopmental evaluation conducted at the request of plaintiff’s primary care physicians.
VIII. STEP FIVE
A. Legal Standards
At step five of the disability analysis, the burden shifts to the ALJ to demonstrate
that there is other work in the national economy that plaintiff can perform. Poupore v.
Astrue, 566 F.3d 303, 306 (2d Cir. 2009). “Work which exists in the national
economy” means work existing in significant numbers “either in the region where the

individuals live or in several regions of the country.” McCusker v. Comm’r of Soc. Sec.,
No. 1:13-CV-1074, 2014 WL 6610025, at *3 (N.D.N.Y. Nov. 20, 2014) (quoting SSR
82-53, 1982 WL 3134, at *3 (1982) (internal quotation marks removed).
In the ordinary case, the ALJ carries out this fifth step of the sequential disability
analysis by applying the applicable Medical-Vocational Guidelines (“the Grids”). Id.

The Grids divide work into sedentary, light, medium, heavy, and very heavy categories,
based on the extent of a claimant’s ability to sit, stand, walk, lift, carry, push, and pull.
20 C.F.R. Pt. 404, Subpt. P, App. 2; Zorilla v. Chater, 915 F. Supp. 662, 667 n.2
(S.D.N.Y. 1996). See also 20 C.F.R. §§ 404.1567 & 416.967. Each exertional category
of work has its own Grid, which then takes into account the plaintiff’s age, education,
and previous work experience. Id. Based on these factors, the Grids help the ALJ

determine whether plaintiff can engage in any other substantial work that exists in the
national economy. Id.
“Although the grids are ‘generally dispositive, exclusive reliance on [them] is
inappropriate’ when they do not fully account for the claimant’s limitations.” Martin v.
nonexertional impairments8 are present or when exertional impairments do not fit
squarely within Grid categories, the testimony of a vocational expert is required to
support a finding of residual functional capacity for substantial gainful activity.
McConnell v. Astrue, 6:03-CV-0521 (TJM), 2008 WL 833968, at *21 (N.D.N.Y. Mar.
27, 2008) (citing, inter alia, Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986).
B. Application

Plaintiff contends that the ALJ was obligated to consult a vocational expert at
step five of the sequential evaluation process, and that his reliance on the Grids was
improper based on plaintiff’s significant non-exertional impairments. (Pl.’s Br. at 22-
24). For the reasons outlined above, the ALJ’s analysis with regard to plaintiff’s RFC
was both flawed and based on an incomplete record. In turn, the ALJ’s step five

determination, which was necessarily based on the flawed RFC determination, is not
supported by substantial evidence and must be revisited.
Upon remand, the ALJ shall not rely solely on the Grids unless substantial
evidence supports a finding that plaintiff can perform the basic mental demands of
unskilled work, i.e. the ability on a sustained basis to understand, carry out, and
remember simple instructions; to respond appropriately to supervision, coworkers, and

usual work situations; and to deal with changes in a routine work setting. If plaintiff’s

8 A “nonexertional” limitation is a limitation or restriction imposed by impairments and related
symptoms, such as pain, that affect only the claimant's ability to meet the demands of jobs other than
the strength demands. 20 C.F.R. §§ 404.1569a(c), 416.969a(c).
non-exertional limitations “significantly limit’” the range of work permitted by her
exertional limitations, the ALJ shall obtain vocational testimony in order to determine
the extent, if any, to which plaintiffs limitations have eroded the occupational base of
such work. See Young v. Berryhill, No. 3:17-CV-970, 2018 WL 2947860, at *14 (D.
Conn. June 12, 2018) (citing Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010).
WHEREFORE, based on the findings above, it is
ORDERED, that the Commissioner’s decision is REVERSED, and this action is
remanded pursuant to Sentence Four of 20 U.S.C. § 405 for further proceedings as
discussed above, and it is
ORDERED, that judgment be entered for the PLAINTIFF.

Dated: February 19, 2020 th how Be lo
Andrew T. Baxter
U.S. Magistrate Judge

According to the Second Circuit, a limitation becomes significant when it causes an
“additional loss of work capacity beyond a negligible one or . . . one that so narrows a claimant’s
possible range of work as to deprive him of a meaningful employment opportunity.” Bapp v. Bowen,
802 F.2d at 606.
24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10312560. Public record. Not legal advice.