Gardner v. Colvin

• Court: District Court, E.D. New York
• Decided: August 8, 2019
• Docket: 2:16-cv-02385
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

_____________________

No 16-CV-2385 (JFB) _____________________

TAMARI A. GARDNER,

Plaintiff,

VERSUS

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,

Defendant.

___________

MEMORANDUM AND ORDER August 8, 2019 ____________ JOSEPH F. BIANCO, Circuit Judge (sitting therefore, that plaintiff was not disabled. The by designation): Appeals Council denied plaintiff’s request for review, making the ALJ’s decision the Plaintiff Tamari A. Gardner commenced final decision of the Commissioner. this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act on May 19, 2016, Plaintiff now moves for judgment on the challenging the final decision of the Acting pleadings pursuant to Federal Rule of Civil Commissioner of Social Security (the Procedure 12(c). The Commissioner opposes “Commissioner”) denying plaintiff’s the motion and cross-moves for judgment on application for Social Security disability the pleadings. For the reasons set forth benefits on March 22, 2016. An below, the Court denies plaintiff’s motion for Administrative Law Judge (“ALJ”) judgment on the pleadings, denies the determined that plaintiff had the residual Commissioner’s cross-motion for judgment functional capacity to perform a full range of on the pleadings, and remands the case to the work at all exertional levels, with certain ALJ for further proceedings consistent with non-exertional limitations. The ALJ found this Memorandum and Order. that there were a significant number of jobs in the national economy that plaintiff could perform despite these limitations, and, I. FACTUAL BACKGROUND Plaintiff’s IEP report further provided that plaintiff had “social and emotional needs The following summary of the relevant that should be addressed through special facts is based upon the Administrative education,” including that plaintiff had Record (“AR”) developed by the ALJ. (ECF difficulty undertaking new or challenging No. 5.) A more exhaustive recitation is tasks; lacked confidence in social contained in the parties’ submissions to the relationships; and needed to develop Court and is not repeated herein. problem-solving skills. (Id. at 367.) In A. Personal and Education History addition, the IEP reported that plaintiff “has difficulty in her ability to engage in Plaintiff was born on May 24, 1993. (AR appropriate social behaviors, along with 53.) Up until the date plaintiff turned 18, she difficulty in reading decoding, reading received child’s disability benefits under comprehension, [and] math calculation, Title XVI. (Id. at 90.) which interferes with participation in age Plaintiff attended Sewanhaka Central appropriate activities.” (Id. at 368.) School District, where she completed the Plaintiff’s 2008-2009 Annual Student tenth grade. (Id. at 53-54, 255.) While in Profile reported that, with respect to school, plaintiff attended special education “Vocational / Transition Planning,” plaintiff classes. (Id. at 54.) More specifically, “has difficulty sustaining working on job plaintiff participated in the Nassau BOCES tasks for the required amount of time,” and Center for Community Adjustment (“CCA”) that she “needs to increase the performance program, which is an ungraded program. (Id. related skills in job/work settings (e.g., 255.) Plaintiff was placed in this program adaptability, behavior/interactions, because she “requires special instruction in productivity, independent functioning).” (Id. an environment with a smaller student-to- at 380.) The annual profile further reported teacher ratio and minimal distractions in that, in the category of social development, order to progress in achieving the learning plaintiff “generally demonstrates appropriate standards.” (Id. 366.) Plaintiff’s class had a interactions with select authority figures” and ratio of “6-1+1.” (Id. 365.) “is aware of her personal feelings,” but that Sewanhaka Central High School District plaintiff “needs to express her thoughts and prepared Individualized Education Program feelings more appropriately”; “becomes (“IEP”) reports for plaintiff while she was in anxious/stressed in social situations”; and attendance. (Id. 257.) “has difficulty expressing anger in an appropriate manner.” (Id. at 381.) Plaintiff’s IEP report states that plaintiff’s cognitive levels/abilities were “below On April 22, 2010, Sewanhaka Central age/grade expectations” (id.), and that her High School District conducted a social development levels/abilities were Psychological Re-Evaluation of plaintiff. “significant[ly] delay[ed]” with respect to (Id. at 508-10.) The evaluation noted that, “peers and authority figures” (id. at 258). when plaintiff entered the CCA program in Plaintiff was exempt from learning a September 2008, she “initially demonstrated language other than English because her difficulties engaging in positive peer “disability adversely affects the ability to interactions”; “was often angry, learn a language.” (Id. at 368.) argumentative and threatening”; and “used inappropriate language and would threaten classmates with physical retaliation.” (Id. at 509.) The evaluation further noted that had been diagnosed as learning disabled and plaintiff was participating “in a community emotionally disturbed since childhood; and work-site at Shop-Rite.” (Id.) attended a BOCES program until eleventh grade, when she dropped out after having her The Psychological Re-Evaluation also child. (Id. at 443.) Dr. Robotti also evaluated reported the following WAIS-IV test scores plaintiff’s history of sexual and/or physical for plaintiff: 72 for verbal comprehension; abuse or neglect, and reported that plaintiff 67 for perceptual reasoning; 80 for working was raped by her ex-boyfriend in 2007 and memory; 76 for processing speed; 67 for was physically abused by her child’s father general ability; and a full scale IQ of 68. (Id. while plaintiff was pregnant. (Id.) Dr. at 508.) Plaintiff’s full scale IQ score was 74 Robotti further reported that plaintiff denied in 2007. (Id.) having any legal problems. (Id.) B. Relevant Medical History In connection with plaintiff’s mental In 2010, plaintiff received treatment for status examination, Dr. Robotti reported postpartum depression and bipolar disorder plaintiff’s behavior as appropriate (id. at through the Federation Employment & 444); awareness/attention as alert (id.); Guidance Service (“FEGS”). (Id. at 288.) attitude as cooperative (id.); emotional affect Plaintiff returned to FEGS for treatment in as constricted and labile (id. at 446); mood as February 2012, where she had weekly anxious and irritable (id.); congruence of psychotherapy sessions and monthly sessions mood with situation and content as with a psychiatrist for medication appropriate (id.); judgment as appropriate for management purposes, detailed below. age (id.); insight into her illness as appropriate for age (id.); impulse control as 1. Dr. Flavia Robotti appropriate for age (id.); and noted that On March 26, 2012, plaintiff was plaintiff experienced feelings of helplessness evaluated by FEGS psychiatrist Flavia and hopelessness and suffered from sleep Robotti, M.D. (“Dr. Robotti”), who disturbances (id. at 444). Dr. Robotti also performed a Psychiatric Evaluation. (Id. at reported plaintiff’s speech as slow; thought 441-49.) Dr. Robotti reported that plaintiff processes as “poverty of content”; and noted began feeling depressed at age twelve, when that plaintiff suffered from paranoid thinking her father left her family; plaintiff was also (specifically with respect to her family depressed post-partum in 2010; plaintiff’s turning against her). (Id. at 445.) Plaintiff mother had brought plaintiff to FEGS in 2010 denied suicidal ideations, but Dr. Robotti for psychotherapy treatment, but would not reported that plaintiff had high financial and consent to medicating plaintiff; plaintiff social stressors. (Id.) dropped out of FEGS one month later, after Dr. Robotti reported plaintiff’s cognitive getting into a fight with her mother and functioning as “good” with respect to moving out of her mother’s house; and orientation to time, place, and person; plaintiff “has continued to be depressed, immediate retention and recall; and recent irritable, with bouts of uncontrollable anger memory (in the past 24 hours). (Id. at 446.) where she becomes verbally abusive.” (Id. at Dr. Robotti reported plaintiff’s cognitive 441.) functioning as “fair” with respect to remote With respect to plaintiff’s developmental memory; abstract versus concrete thought; history, Dr. Robotti reported that plaintiff was “slow in all developmental milestones”; and cognitive ability. 1 (Id.) Dr. Robotti reported that plaintiff did not have a reported plaintiff’s personality characteristics depressed mood, was not manic, had normal as argumentative and impulsive. (Id. at 447.) thought processes, and had realistic thought content (i.e., plaintiff had realistic concerns At the end of the evaluation, Dr. Robotti about the future and wanted her own reported that plaintiff “has always suffered apartment). (Id.) Plaintiff had no psychosis, from depression”; has a learning disability; suicidality, or homicidiality, and Dr. Robotti and suffers from outbursts of anger “where reported plaintiff’s recent and remote she verbally abuses others[, but] denies memory, concentration/attention span, fund physical violence.” (Id.) Dr. Robotti, of knowledge, and impulse control as however, noted that plaintiff does not have “appropriate.” (Id.) Dr. Robotti reported aggressive impulses towards her daughter plaintiff’s insight as fair and her judgment as and that she has neither been treated with both appropriate and impaired. (Id.) Dr. medication nor been hospitalized in the past. Robotti further reported that plaintiff had no Dr. Robotti diagnosed plaintiff with signs of issues with her sleep, appetite, or dysthymic disorder and assessed plaintiff’s energy. (Id.) global assessment of function (“GAF”) at a Dr. Robotti diagnosed plaintiff with a score of 45. (Id. at 448.) Dr. Robotti mood disorder, and assessed her GAF at 50. recommended that plaintiff be prescribed (Id. at 476.) Dr. Robotti recommended that medication to alleviate depression and plaintiff continue psychotherapy, stabilize improve impulse control. (Id. at 449.) her mood, alleviate depression, and correct Dr. Robotti evaluated plaintiff again on her “bio signs.” (Id.) September 26, 2013. Dr. Robotti reported On June 25, 2014, Dr. Robotti completed that plaintiff stopped all psychotropic a Medical Report for Determination of medications ten months prior because she Disability/Employability for plaintiff. (Id. was pregnant, but noted that plaintiff had 506-507.) In the report, Dr. Robotti reported continued psychotherapy sessions. (Id. at that plaintiff suffers from a mood disorder 476.) Dr. Robotti further reported that and that plaintiff’s records indicate a history plaintiff was suffering from dysthymic of a learning disability. (Id. at 506.) In disorder, and that plaintiff’s mood swings response to a question asking what prevents had become more prominent since her the patient from working, Dr. Robotti stated, pregnancy. (Id.) Dr. Robotti noted that “pending – learning disability.” (Id.) In plaintiff experienced decreased sleep; connection with plaintiff’s history of increased appetite; low energy; and anxiety, disability, Dr. Robotti reported that plaintiff and that plaintiff wanted to resume her would provide documentation of her medication. (Id.) learning disability. (Id. at 507.) Dr. Robotti conducted a mental status 2. Daniel DeRienzis (LMSW) examination of plaintiff, reporting plaintiff’s speech as normal; attitude as cooperative; On February 28, 2012, plaintiff was behavior as appropriate; psychomotor evaluated by Daniel DeRienzis, LMSW activity as appropriate; and affect as broad (“Mr. DeRienzis”). (Id. at 428-39.) Mr. ranged. (Id. 477.) Dr. Robotti further DeRienzis, a FEGS social worker, completed 1 Dr. Robotti identified plaintiff’s fund of knowledge a n d c o n c e n t r a t i o n / a t t e n t i o n s p a n a s both “good” and “fair.” (AR 446.) an initial Adult Assessment and Plaintiff continued to see Mr. DeRienzis Psychological evaluation of plaintiff. (Id.) approximately every week thereafter. Plaintiff canceled or did not show up to Mr. DeRienzis reported the following: several appointments. (See, e.g., id. at 516.) plaintiff’s speech was “underproductive” Plaintiff also requested extra sessions at with a somewhat “constricted affect” (id. at times. (Id.) 438); plaintiff’s “body language and tone of voice suggest[ed] depression” (id. at 428); On November 12, 2012, Mr. DeRienzis plaintiff had a history of anger problems, and reported that he attempted to provide plaintiff “is easily provoked and has trouble with “insight-oriented therapy” to improve controlling herself and deescalating plaintiff’s ability to handle her feelings of situations” (id. at 431); plaintiff had anger and to respond to such feelings previously intentionally or accidentally effectively. (Id. at 545.) On April 24, 2013, damaged property, including punching walls Mr. DeRienzis reported that plaintiff was and breaking phones in fits of rage (id. at unable to “break the pattern she has of either 432); at age thirteen, plaintiff was forced to isolating or becoming aggressive.” (Id. at regularly have sexual intercourse with a 561.) fourteen-year-old classmate for two months 3. Dr. Syedqambar Naqvi (id.); plaintiff experienced developmental “problems/delays” during adolescence due to On August 26, 2013, plaintiff was repeated sexual assaults (id. at 434); and evaluated by Syedqambar Naqvi, M.D. (“Dr. plaintiff was at high risk for damaging Naqvi”) at FEGS. (Id. at 483-91.) Dr. Naqvi property, acute psychosocial stressors, and reported that plaintiff had been in therapy complying with her medication (id. at 437). since she was sixteen years old, but that plaintiff’s mother would not permit her to be With respect to plaintiff’s daily and treated with medications at that time. (Id. at family life, Mr. DeRienzis reported that, 483.) Dr. Naqvi further reported that plaintiff during the day, plaintiff watches television first reported suffering from depression when and sleeps (id. at 432); plaintiff has limited she was twelve, and that plaintiff was hobbies, leisure activities, social severely depressed after having her first involvement, and community involvement child, but that she responded positively to (id. at 433); and plaintiff has a “fair” medication. (Id.) Plaintiff’s depression relationship with her family members, other worsened when she became pregnant with than with her father, “who, due to problems her second child, and plaintiff reported with drugs, has grown distant from [plaintiff] suffering from anger issues and relationship and caused [plaintiff] to lose respect and/or problems with her mother. (Id.) compassion for him” (id. at 435). In connection with the mental status The “Clinical Formulation” portion of the examination of plaintiff, Dr. Naqvi reported evaluation stated that plaintiff presented with plaintiff’s awareness/attention as lethargic symptoms of depression and problems with (id. at 486); behavior as restless, fidgety, and anger management, and concluded that clumsy (id.); attitude toward Dr. Naqvi as plaintiff would benefit from individual evasive and anxious (id.); speech as slow (id. counseling, anger management, and at 487); emotional affect as normal (id. at psychiatric evaluation for possible 488); mood as depressed and anxious (id.); medication. (Id. at 438.) congruence of mood with situation and content as appropriate (id.); judgment as appropriate for age (id. at 488); insight into Ms. Knapper conducted Psychiatric illness as appropriate for age (id.); impulse Assessments of plaintiff, on March 5, 2014 control as appropriate for age (id.); and noted and July 30, 2014, for the Nassau County that plaintiff suffered from feelings of Department of Social Services. (Id. at 505, helplessness, hopelessness, and 503.) In the March 5, 2014 assessment, Ms. worthlessness (id. at 486). Dr. Naqvi further Knapper reported that plaintiff was reported plaintiff’s thought processes as prescribed Lexapro, Seroquel, Wellbutrin, appropriate, with no disorders present, and Klonopin, but that plaintiff was not although Dr. Navi noted that plaintiff “completely compliant” with her suffered from hallucinations. (Id. at 487.) medications. (Id. at 504.) Ms. Knapper also reported that, on occasion, plaintiff Dr. Naqvi reported plaintiff’s cognitive experienced decompensation and behavioral functioning as “poor” with respect to interferences with activities of daily living, concentration/attention span. (Id. at 488.) but that plaintiff had never been hospitalized. Dr. Naqvi otherwise reported plaintiff’s (Id. at 505.) With respect to plaintiff’s cognitive functioning as “fair”; Dr. Naqvi did functional limitations, Ms. Knapper reported not report plaintiff’s functioning as “good” in that plaintiff was moderately limited in any category. (Id.) maintaining attention and concentration; Dr. Naqvi diagnosed plaintiff with interacting appropriately with others; depressive disorder and assessed plaintiff’s maintaining socially appropriate behavior; current GAF as 45. (Id. at 490.) Dr. Naqvi and performing low stress, simple tasks. (Id.) recommended that plaintiff should continue Ms. Knapper reported that plaintiff had no therapy, and noted that plaintiff would return evidence of limitation in understanding and for medications in two weeks, when she was remembering simple instructions; done breastfeeding her child. (Id. at 491.) understanding and remembering complex instructions; maintaining personal hygiene; 4. Dawn Knapper (LMSW) and using public transportation. (Id.) Ms. On December 11, 2013, Dawn Knapper, Knapper further reported that plaintiff could LMSW (“Ms. Knapper”), a social worker at participate in an education, training, or a FEGS, examined plaintiff. (Id. at 478-79.) rehabilitation program for three hours per Ms. Knapper’s “Psychosocial Update” week. (Id.) Ms. Knapper did not report that reported that there had been no changes in plaintiff was capable of participating in plaintiff’s psychiatric condition. (Id. at 478.) employment or work experience activities. In the “Clinical Formulation” section of the (Id.) update, Ms. Knapper reported that plaintiff On April 24, 2014, Ms. Knapper “requires continued 1:1 psychotherapy to completed a Mental Impairment resolve psychosocial stressor and develop Questionnaire regarding plaintiff. (Id. at coping skills to manage same effectively. 496-501.) Ms. Knapper reported that [Plaintiff] continues to require monthly plaintiff suffers from sleep disturbances; medication management visits with the mood disturbances; social withdrawal or psychiatrist.” (Id. at 479.) Ms. Knapper isolation; feelings of guilt/worthlessness; diagnosed plaintiff with mood disorder, and difficulty thinking or concentrating; and noted that she was currently prescribed hostility and irritability, and that plaintiff Seroquel, Lexapro, Wellbutrin, and reports feeling very tired from her Klonopin. (Id.) medications. (Id. at 496-98.) Under the “Prognosis” portion of the questionnaire, Ms. Knapper reported that, “with medication concentrating, poor interpersonal skills, and management & ongoing therapy, [plaintiff] difficulty appropriately managing her anger. can recover from mental illness.” (Id. at (Id. at 499-500.) 498.) Ms. Knapper further reported that In the questionnaire, Ms. Knapper also plaintiff had poor or no mental ability or reported on plaintiff’s ability and aptitude to aptitude to understand and remember detailed perform work-related activities in a regular instructions; carry out detailed instructions; work setting. (Id. at 499.) Ms. Knapper was set realistic goals or make plans directed to evaluate plaintiff’s ability as independently of others; or deal with stress of either “unlimited or very good”; “good”; semi-skilled and skilled work, explaining that “fair”; or “poor or none.” (Id.) Ms. Knapper plaintiff “has marked difficulty reported plaintiff’s ability to carry out very concentrating” and “stay[ing] on task.” (Id. short and simple instructions; maintain at 500.) regular attendance and be punctual; make In connection with plaintiff’s mental simple work-related decisions; ask simple ability and aptitude to perform particular questions or request assistance; and be aware types of jobs, Ms. Knapper reported that of normal hazards and take appropriate plaintiff had poor or no ability and aptitude to precautions as “fair.” (Id.) The questionnaire interact appropriately with the general public; defined fair as the “[a]bility to function in this and fair ability and aptitude to maintain area is seriously limited, but not precluded.” socially appropriate behavior and use public (Id.) Ms. Knapper reported that plaintiff had transportation, explaining that plaintiff “has poor or no ability to do the following: poor coping skill[s] regarding anger remember work-like procedures; understand management” and “is easily agitated.” (Id.) and remember short and simple instructions; maintain attention for two-hour segment; Finally, in connection with plaintiff’s sustain an ordinary routine without special functional limitations, Ms. Knapper reported supervision; work in coordination with or that plaintiff had “marked” difficulties proximity to others without being unduly maintaining social functioning and distracted; complete a normal workday and “frequent” deficiencies in concentration, workweek without interruptions from persistence, or pace, limiting her ability to psychologically-based symptoms; perform at timely complete tasks. (Id.) Ms. Knapper a constant pace without an unreasonable explained that plaintiff reported being unable number and length of rest periods; accept to sit for an extended period of time. (Id. at instructions and respond appropriately to 501.) criticism from supervisors; get along with co- workers or peers without unduly distracting In connection with plaintiff’s July 30, them or exhibiting behavioral extremes; 2014 visit, Ms. Knapper reported that respond appropriately to changes in routine plaintiff had “moderately limited” abilities to work setting; and deal with normal work maintain attention and concentration; interact stress. (Id.) The questionnaire defined “poor appropriately with others; maintain socially or none” as “[n]o useful ability to function in appropriate behavior; and perform low stress, this area.” (Id.) Ms. Knapper did not report simple tasks. (Id. at 503.) The assessment plaintiff having “unlimited or very good” or defined “moderately limited” as “unable to “good” abilities to do any work-related tasks. function 50% of the time.” (Id.) Ms. (See id.) To support her findings, Ms. Knapper further reported that plaintiff’s Knapper reported that plaintiff had difficulty “current level of depression will impair her ability to participate in [education and learning new tasks; making simple work- training] activities.” (Id.) related decisions; adequately relating to others; and appropriately handling stress. 5. Dr. Paul Herman (Id. at 390-91.) Although Dr. Herman On August 22, 2011, plaintiff was reported that plaintiff might have difficulty examined by psychologist Paul Herman, performing complex tasks and that the results Ph.D. (“Dr. Herman”). (Id. at 389-92.) Dr. of his examination were consistent with Herman conducted a one-time consultative “borderline intellectual functioning,” he examination of plaintiff for the SSA. (See concluded that it did not appear “significant id.) Dr. Herman reported that plaintiff had enough to interfere with [plaintiff’s] ability to adequate speech and language skills (id. function on a daily basis to the extent that 389); recalled and understood instructions vocational functioning would be precluded.” (id.); and had good attention and (Id. at 391.) concentration (id. at 390). Dr. Herman diagnosed plaintiff with As part of the examination, Dr. Herman “[b]orderline intellectual functioning” and administered the Wide Range Achievement recommended vocational training. (Id.) Dr. Test, Fourth Addition (“WRAT-IV”). (Id.) Herman reported plaintiff’s prognosis as In the area of “Reading/Decoding,” plaintiff “[f]air to good given the absence of more scored a 66, which was a grade equivalent of prominent symptomatology, but some 3.2. (Id.) Dr. Herman concluded that this difficulty in her circumstances.” (Id.) Dr. was “consistent, or somewhat above that Herman, however, also reported that plaintiff which would be expected given [plaintiff’s] would need assistance managing funds given overall level of cognition,” and that it did not her lack of experience in this area. (Id.) “indicate the presence of a reading disorder.” 6. G. Wing (Id.) In light of the fact that plaintiff had recently undergone a comprehensive On August 30, 2011, G. Wing (“Ms. cognitive evaluation in connection with her Wing”), a state agency psychiatric special education classes, Dr. Herman consultant, submitted a “Psychiatric Review reported that he used an alternate Technique” (id. at 393-406) and “Mental standardized measure of cognitive ability to Residual Functioning Capacity Assessment” avoid artificially inflated scores. (Id.) (id. at 407-10) regarding plaintiff. Ms. Wing Plaintiff scored 75 on the Nonverbal did not examine plaintiff prior to submitting Intelligence-3 (TONI-3) test, which placed these reports. her in the borderline range of cognitive In the Psychiatric Review Technique, Ms. ability. (Id.) Dr. Herman concluded that, Wing reviewed plaintiff under listing Section overall, plaintiff’s “level of cognition is 12.05 (intellectual disability). (Id. at 393, adequate for many vocational endeavors and 397.) Ms. Wing concluded that plaintiff had does not preclude vocational functioning.” a learning disability, but that it did not satisfy (Id.) the criteria for listing Section 12.05. (Id. at Dr. Herman further reported that plaintiff 397.) When evaluating plaintiff’s functional appeared capable of the following: limitations—the “B” criteria of the listings— understanding simple directions; performing Ms. Wing concluded that plaintiff had simple tasks; maintaining attention and “moderate” restrictions with respect to daily concentration sufficient for low-level living activities; difficulties in maintaining employment; maintaining a regular schedule; social functioning; and difficulties in maintaining concentration, persistence, or evidence presented was “partially consistent pace. (Id. at 403.) Ms. Wing reported that with [plaintiff’s] allegation of psychological plaintiff had never experienced repeated symptoms.” (Id.) Mr. Burstein found that, episodes of deterioration with extended “[a]lthough [plaintiff] does show evidence of duration. (Id.) symptoms, these complaints are not considered to be significantly limiting,” and In the Mental Residual Functional that plaintiff was able to follow simple Capacity Assessment, Ms. Wing found that directions; sustain concentration for simple plaintiff was moderately limited in her ability tasks; and adapt to simple changes and relate to understand and carry out simple adequately to others. (Id.) Mr. Burstein instructions; concentrate for up to two hours concluded that there were “no listing met or at a time; relate to supervisors and co- equaled on [plaintiff].” (Id.) workers; and adapt to changes in the work environment. (Id. at 409.) Ms. Wing then C. Relevant Testimonial Evidence concluded that plaintiff could perform simple Plaintiff had an administrative hearing on tasks. (Id.) April 25, 2014 in Jericho, New York, before 7. Y. Burstein ALJ April Wexler. (Id. at 52-66.) Plaintiff appeared with her then-counsel, Milton On July 16, 2012, medical consultant Mr. Braxter. Plaintiff had a supplemental Burstein submitted a “Psychiatric Review administrative hearing on August 8, 2014, Technique” (id. at 450-63) and “Mental where she also appeared before ALJ Wexler Residual Functional Capacity Assessment” with Mr. Braxter as counsel. (Id. at 69-82.) (id. at 385-88) regarding plaintiff. In the Psychiatric Review Technique, Mr. Burstein 1. Plaintiff’s Testimony at the Hearing reviewed plaintiff under listing Section 12.02 and Supplemental Hearing (organic mental disorders) and concluded The following is a summary of plaintiff’s that plaintiff had a learning disability that did testimony at the hearings. not satisfy the criteria for that listing. (Id. at 450-51.) When evaluating plaintiff’s Plaintiff lives in Elmont, New York with functional limitations—the “B” criteria of the her mother, sister, and her two children (eight listings—Mr. Burstein concluded that months and four years old at the time of the plaintiff had moderate difficulties in hearing), and her sister’s two children. (Id. at maintaining concentration, persistence, or 54.) She has a driver’s license and drives. pace; mild restrictions of activities of daily (Id.) Plaintiff attended special education living; mild difficulties in maintaining social classes until tenth or eleventh grade. (Id.) functioning; and no repeated episodes of deterioration with extended duration. (Id. at Plaintiff suffers from a mood disorder 460.) and a learning disability. (Id. at 55.) She attends therapy with Dr. Knapper once a In the Mental Residual Functional week, and takes the following medications Capacity Assessment, Mr. Burstein reported prescribed by Dr. Robotti: Seroquel, that plaintiff showed no evidence of a thought Lexapro, Klonopin, and Wellbutrin. (Id. at disorder and had adequate judgment and 55-56.) Seroquel treats bipolar disorder and insight; attention, concentration, and memory depression; Lexapro treats depression; for simple tasks; and interpersonal skills. (Id. Klonopin treats panic attacks; and Wellbutrin at 387.) Mr. Burstein, however, also reported treats depression. (Pl. Mem., 19-20, nn. 7-10, plaintiff’s IQ as “borderline,” and that the ECF No. 10.) Plaintiff takes her medication daily, which helps her. (AR 63.) When asked At the supplemental hearing, plaintiff by the ALJ whether plaintiff received any testified that her depression and learning other treatment for her learning disability, disability affect her ability to function in the plaintiff responded, “No.” (Id. at 56.) workplace because she is unable to perform simple tasks and she gets frustrated easily. Plaintiff is able to bathe, dress, feed (Id. at 81-82.) herself and her children, and do laundry and other chores, including the dishes. (Id. at 56- 3. Plaintiff’s Mother 57, 61.) Plaintiff is the primary caregiver for Plaintiff’s mother, Amy Gardner, her children, but their father takes them for submitted a “Function Report” (id. at 299- eight hours, two to three days per week. (Id. 307), as well as a letter to ALJ Wexler on at 58-59, 61.) She is able to drive and run August 8, 2014 (id. at 354-55). Plaintiff’s errands, such as going to Office Max and mother reported that plaintiff is sometimes up shopping for clothes, but she does not go to all night, and other times sleeps all day. (Id. the grocery store by herself. (Id. at 60-61.) 300.) In addition, plaintiff’s mother reported Plaintiff applied for jobs, but she did not that plaintiff rarely prepares meals because hear back from the employers. (Id. at 62.) she has no patience. (Id. at 301.) Instead, When asked by the ALJ what would prevent plaintiff’s mother prepares plaintiff’s meals her from working as a cashier, plaintiff (id. at 302); plaintiff’s mother also assists responded that she has a mood disorder, and plaintiff with childcare (id. at 300). that she cannot be around people for too long. 4. Preventative Worker (Id.) Plaintiff sometimes socializes with her sister, but she does not have any friends. (Id. On July 10, 2012, a preventive worker at 61.) from Mercy First submitted a “Report of Contact” with plaintiff. (Id. at 312-313.) The Plaintiff sometimes yells at her children, report noted that plaintiff “frequently leaves and approximately once a week, her mother her daughter with [her mother] and goes out has to intervene because plaintiff cannot a lot,” and that plaintiff “seems to leave a lot control her mood. (Id. at 62-63.) Plaintiff, of her daughter’s care to [her mother].” (Id. however, is not concerned about being alone at 312.) The report also states that plaintiff with her children, testifying that she would “tends to be argumentative.” (Id.) never hurt them. (Id. at 63.) When asked by the ALJ why plaintiff could not control her 5. Housing Worker behavior in a work setting, plaintiff responded, “[b]ecause it’s a different story Janis Davison, a housing worker, also with other people.” (Id. at 64.) submitted a “Report of Contact” with plaintiff dated July 9, 2012. (Id. at 310-11.) Plaintiff spends her time at home The housing worker reported that plaintiff watching her kids and sitting outside. (Id.) was “not your average adult 18 year old. She Plaintiff does not have hobbies, but she definitely has limitations.” (Id. at 310.) The sometimes watches television and goes on housing worker also reported that plaintiff Facebook to talk to her sisters and cousins. was unable to care for her daughter without (Id.) Approximately three days a week, the help of her mother, and that she “doesn’t plaintiff stays in her bedroom to avoid always know right from wrong.” (Id.) altercations. (Id. at 65.) Plaintiff’s mother or grandmother watch her children on these days. (Id.) On August 8, 2014, Dr. Vandergoot testified at the supplemental hearing. At the 6. Vocational Evidence hearing, counsel for plaintiff asked Dr. The ALJ asked David Vandergoot, Ph. D. Vandergoot to define “low stress jobs” as it (“Dr. Vandergoot”) to respond to written was used in the hypotheticals posed by the interrogatories as an impartial vocational ALJ. (Id. at 72.) Dr. Vandergoot responded expert (“VE”). (Id. at 344-347.) In the that a low stress job “is typically one that is interrogatories, Dr. Vandergoot was described as unskilled in the DOT, and that presented with two hypothetical situations. does not have set production quotas over a set (Id. at 345.) In both hypothetical situations, period of time, typically is maybe one, [two,] Dr. Vandergoot was asked to assume that the three or four-step tasks, in terms of individual was born on May 24, 1993; had completing the job.” (Id.) When asked who limited education; was able to communicate decides whether a job is “low stress,” Dr. in English; and had no work experience. (Id. Vandergoot responded: “No one decides it. at 344-45.) In the first hypothetical, Dr. It’s just my understanding of the factors that Vandergoot was asked to assume that the are involved in completing the job that I feel individual was: makes the job low stress. There is no rule or specific definition of low stress.” (Id. at 72- Limited to simple routine repetitive 73.) tasks, low stress jobs which means no work at fixed production rate pace, Dr. Vandergoot further testified that an with work that is checked at the end individual that suffers from mood swings and of the workday or workweek rather is unable to handle low stress could not than hourly or throughout the day. perform the jobs listed in response to the first Limited to occasional contact with hypothetical. (Id. at 73.) In addition, Dr. supervisors and co-workers and no Vandergoot testified that “[t]here are no contact with members of the general employers who would have no production public. expectations.” (Id. at 74.) In response to questions from plaintiff’s counsel, Dr. (Id. at 345.) Dr. Vandergoot reported that the Vandergoot further acknowledged issues that individual in the first hypothetical could might come up in employment as a perform the following unskilled jobs in the photocopy machine operator, garment sorter, national economy: photocopy machine or routing clerk. (Id. at 74-77.) Finally, Dr. operator (60,000 jobs in the national Vandergoot testified that he used the DOT economy); garment sorter (40,000 jobs in the definitions to define the three jobs listed in national economy), and routing clerk response to the first hypothetical, and that (100,000 jobs in the national economy). (Id. those definitions were last updated in 1991. at 346.) (Id. at 80.) In the second hypothetical, Dr. II. PROCEDURAL BACKGROUND Vandergoot was asked to consider the same facts as in the first hypothetical, with the A. Administrative History additional fact that the individual “[h]as the Following plaintiff’s eighteenth birthday, need to be off task 20% of the workday.” (Id. plaintiff received an “Age 18 at 345.) Dr. Vandergoot reported that there Redetermination Notice” dated September 2, were no unskilled jobs in the national 2011 (“the Redetermination Notice”). (Id. at economy that the individual in the second 90-93.) The Redetermination Notice stated hypothetical could perform. (Id. at 346.) that plaintiff no longer qualified for On September 2, 2014, ALJ Wexler Supplemental Security Income (“SSI”) issued an opinion concluding that plaintiff’s because she was not found to be disabled disability ended on September 2, 2011, and under the definition of disability for adults. that plaintiff had not thereafter become (Id. at 90.) More specifically, the disabled. (Id. at 24-43.) On November 6, Redetermination Notice provided that the 2014, plaintiff submitted a request for review SSA had determined that plaintiff’s condition of the ALJ’s September 2, 2014 decision to was “not severe enough” to keep plaintiff the Appeals Council. (Id. at 18.) The from working. (Id. at 93.) The Appeals Council denied plaintiff’s request on Redetermination Notice further provided March 22, 2016, making the ALJ’s decision that, despite plaintiff’s reported mental the final decision of the Commissioner. (Id. problems, the reports “did not show any at 1-6.) conditions of a nature that would prevent B. The Instant Case [plaintiff] from working,” and that based on plaintiff’s age, education, and experience, Plaintiff commenced the instant action on plaintiff could perform a job with simple May 19, 2016. (ECF No. 1.) On April 26, tasks. (Id.) 2017, plaintiff moved for judgment on the pleadings. (ECF No. 9.) The Commissioner On December 19, 2012, plaintiff submitted a cross-motion for judgment on the submitted a request for reconsideration with pleadings on September 14, 2017. (Def. the SSA. (Id. at 98-99.) Plaintiff had a Mem., ECF No. 13-1.) On October 26, 2017, hearing with a Disability Hearing Officer plaintiff responded to the Commissioner’s (“DHO”) on February 22, 2013, where cross-motion for judgment on the pleadings plaintiff appeared without counsel. (Id. at (ECF No. 15), and, on December 14, 2017, 102-15.) The DHO concluded that plaintiff the Commissioner filed a reply in further was not disabled on December 22, 2013. (Id. support of her cross-motion for judgment on at 108.) the pleadings. (ECF No. 17.) The Court has On March 18, 2013, plaintiff submitted a fully considered the parties’ submissions. request for a hearing before an ALJ. (Id. at 119.) Plaintiff appeared pro se at a hearing III. STANDARD OF REVIEW with an ALJ on December 12, 2013, but the A district court may set aside a hearing was continued so that plaintiff could determination by the Commissioner “only if retain counsel. (Id. at 44-49.) it is based upon legal error or if the factual findings are not supported by substantial On April 25, 2014, plaintiff appeared evidence in the record as a whole.” Greek v. with counsel and testified at a hearing before Colvin, 802 F.3d 370, 374-75 (2d Cir. 2015) ALJ Wexler. (Id. at 50-66.) On May 20, (citing Burgess v. Astrue, 537 F.3d 117, 127 2014, counsel for plaintiff requested a (2d Cir. 2008); 42 U.S.C. § 405(g)). The supplemental hearing in order to cross- Supreme Court has defined “substantial examine Dr. Vandergoot, who had submitted evidence” in Social Security cases to mean written interrogatories. (Id. at 352-53.) On “more than a mere scintilla” and that which August 8, 2014, ALJ Wexler held a “a reasonable mind might accept as adequate supplemental hearing. Plaintiff appeared at to support a conclusion.” Richardson v. the hearing with her counsel, and Dr. Perales, 402 U.S. 389, 401 (1971) (citation Vandergoot testified. (Id. at 67-82.) omitted); Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013). Furthermore, “it is up to the agency, and not [the] court, to weigh the Circuit has summarized this procedure as conflicting evidence in the record.” Clark v. follows: Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d The first step of this process requires Cir. 1998). If the court finds that there is the [Commissioner] to determine substantial evidence to support the whether the claimant is presently Commissioner’s determination, the decision employed. If the claimant is not must be upheld, “even if [the court] might employed, the [Commissioner] then justifiably have reached a different result determines whether the claimant has upon a de novo review.” Jones v. Sullivan, a “severe impairment” that limits her 949 F.2d 57, 59 (2d Cir. 1991) (citation capacity to work. If the claimant has omitted); see also Yancey v. Apfel, 145 F.3d such an impairment, the 106, 111 (2d Cir. 1998) (“Where an [Commissioner] next considers administrative decision rests on adequate whether the claimant has an findings sustained by evidence having impairment listed in Appendix 1 of rational probative force, the court should not the regulations. When the claimant substitute its judgment for that of the has such an impairment, the Commissioner.”). [Commissioner] will find the IV. DISCUSSION claimant disabled. However, if the claimant does not have a listed A. The Disability Determination impairment, the [Commissioner] A claimant is entitled to disability must determine, under the fourth step, benefits if the claimant is unable “to engage whether the claimant possesses the in any substantial gainful activity by reason residual function capacity to perform of any medically determinable physical or her past relevant work. Finally, if the mental impairment which can be expected to claimant is unable to perform her past result in death or which has lasted or can be relevant work, the [Commissioner] expected to last for a continuous period not determines whether the claimant is less than twelve months.” 42 U.S.C. capable of performing any other § 1382c(a)(3)(A). An individual’s physical work. or mental impairment is not disabling under Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. the Social Security Act unless it is “of such 1999) (quoting Perez, 77 F.3d at 46). The severity that he is not only unable to do his claimant bears the burden of proof with previous work but cannot, considering his respect to the first four steps; the age, education, and work experience, engage Commissioner bears the burden of proving in any other kind of substantial gainful work the last step. Id. which exists in the national economy.” Id. § 1382c(a)(3)(B). The Commissioner must consider the following in determining a claimant’s The Commissioner has promulgated entitlement to benefits: “(1) the objective regulations establishing a five-step procedure medical facts; (2) diagnosis or medical for evaluating disability claims.2 See 20 opinions based on such facts; (3) subjective C.F.R. §§ 404.1520, 416.920. The Second evidence of pain or disability testified to by 2 The ALJ performs this five-step procedure in the first Commissioner’s final decision. See, e.g., Greek, 802 i n s t a n c e ; t h e A p p e a l s C o u n c i l t h e n r eviews the ALJ’s F.3d at 374. decision and determines if it stands as the the claimant or others; (4) the claimant’s evidence demonstrates or supports onset of educational background, age, and work the impairment before age 22.” (Id. at 27.) experience.” Id. (quoting Mongeur v. The ALJ noted that adaptive functioning is Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) defined as “the individual’s progress in (per curiam)). acquiring mental, academic, social and personal skills as compared with other B. The ALJ’s Ruling unimpaired individuals of his/her same age.” The ALJ concluded that plaintiff’s (Id. (citing POMS DI 24515.056d.2).) disability ended on September 2, 2011, and Specifically, the ALJ found that, despite that plaintiff had not become disabled again plaintiff’s low IQ scores, plaintiff’s school following that date. (AR 24-37.) records reflected that she had “made good The ALJ did not conduct the first step of progress in acquiring academic and social the five-step procedure described above, skills.” (Id. at 27.) The ALJ found that because the plaintiff’s current employment is plaintiff was on track to graduate with an IEP not considered when redetermining disability diploma and pursue competitive work, but at the age of eighteen. (Id. at 25 (citing 20 she was dismissed from school due to C.F.R. § 416.987(b)).) nonattendance. (Id.) The IEP indicated that plaintiff showed a “basic understanding” of At step two, the ALJ determined that addition and subtraction and could identify plaintiff had the following severe bills and coins. (Id.) The ALJ also found that impairments: borderline intellectual plaintiff’s daily activities demonstrated functioning and mood disorder. (Id. at 26.) “strong mental, social, and personal skills.” The ALJ noted that these impairments (Id.) “impose more than minimal functional limitations.” (Id.) The ALJ concluded that plaintiff had “not shown that she has the deficits in adaptive At step three, the ALJ concluded that functioning required to satisfy the diagnostic plaintiff did not have an impairment or description of listing 12.05,” and, therefore, combination of impairments that met or that the “severity of her borderline medically equaled the severity of one of the intellectual functioning [did] not meet the listed impairments in 20 C.F.R. criteria of listing 12.05.” (Id. at 28.)3 §§ 416.920(d), 416.925, or 416.926. (Id.) The ALJ specifically considered listings Moving on to step four, the ALJ 12.04 (depressive, bipolar and related determined that plaintiff had the residual disorders) and 12.05 (intellectual disorder). functional capacity to perform work at all exertional levels with non-exertional As to listing 12.05, the ALJ determined limitations, including: simple routine that plaintiff failed to meet the “diagnostic repetitive tasks, low stress jobs, occasional description in the introductory paragraph,” contact with co-workers and supervisors and which required “significantly subaverage no contact with members of the general general intellectual functioning with deficits public. (Id. at 29.) in adaptive functioning initially manifested during the developmental period; i.e., the 3 The ALJ also found that plaintiff did not meet the 12.04. Accordingly, the Court need not, and does not, c r i t e r i a f o r l i s t i n g 1 2 . 0 4 . P l a i n t i f f , h owever, does not discuss listing 12.04. challenge the ALJ’s findings with respect to listing Based on the testimony of the vocational known, “mandates that the medical opinion expert, and considering plaintiff’s age, of a claimant’s treating physician [be] given education, work experience, and residual controlling weight if it is well supported by functional capacity, the ALJ concluded that medical findings and not inconsistent with plaintiff was capable of making a successful other substantial record evidence.” Shaw v. adjustment to other work that existed in Chater, 221 F.3d 126, 134 (2d Cir. 2000); see significant numbers in the national economy also, e.g., Rosa v. Callahan, 168 F.3d 72, 79 (Id. at 35-36.) The ALJ found that plaintiff (2d Cir. 1999); Clark, 143 F.3d at 118. The was, therefore, not disabled from the onset of rule, as set forth in the regulations, provides: her disability on July 4, 2012, through the Generally, we give more weight to date of the ALJ’s decision. (Id. at 36.) medical opinions from your treating C. Application sources, since these sources are likely to be the medical professionals most Plaintiff challenges the ALJ’s decision, able to provide a detailed, longitudinal finding that plaintiff has not been disabled picture of your medical impairment(s) since September 2, 2011. Specifically, and may bring a unique perspective to plaintiff asserts that the ALJ: (1) failed to the medical evidence that cannot be apply the correct legal standard; 4 and obtained from the objective medical (2) failed to develop the record.5 findings alone or from reports of As set forth below, the Court finds that individual examinations, such as remand is required for two reasons. First, the consultative examinations or brief ALJ failed to properly evaluate the medical hospitalizations. If we find that a evidence. In particular, the ALJ failed to treating source’s opinion on the provide good reasons for not crediting issue(s) of the nature and severity of plaintiff’s treating physicians’ opinions and your impairments(s) is well-supported for assigning the weight she did to a single by medically acceptable clinical and consultative examiner opinion. Second, the laboratory diagnostic techniques and is ALJ failed to adequately develop the record.6 not inconsistent with the other substantial evidence in your case 1. Failure to Properly Evaluate the record, we will give it controlling Medical Evidence weight. The Commissioner must give special 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). evidentiary weight to the opinion of the Although treating physicians may share their treating physician. See Clark, 143 F.3d at opinions concerning a patient’s inability to 118. The “treating physician rule,” as it is 4 Plaintiff alleges that the ALJ: (1) failed to adhere to 6 As it is remanding on other grounds, the Court does t h e t r e a t i n g p h y s i c i a n ’ s r u l e ; ( 2 ) e r red by relying on not rule on plaintiff’s argument regarding the deficient vocational testimony resulting from a deficient hypothetical question. (Pl. Mem. at 5.) However, on hypothetical question; and (3) improperly evaluated remand (if the ALJ continues to rely upon the VE’s plaintiff’s learning disability under Listing 12.05 at response after conducting further proceedings step three of the sequential evaluation. consistent with this Memorandum and Order), the ALJ should explain whether she considered the VE’s 5 Plaintiff alleges that the ALJ: (1) failed to obtain written response to the second hypothetical and the necessary evidence; and (2) failed to elicit testimony VE’s verbal response to the representative’s from plaintiff regarding her learning disability. hypothetical, which included plaintiff’s mental health limitations, wherein VE stated plaintiff would not be able to do such jobs. (Id. at 27.) work and the severity of the disability, the v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) ultimate decision of whether an individual is (“We do not hesitate to remand when the disabled is “reserved to the Commissioner.” Commissioner has not provided ‘good Id. § 404.1527(d)(1); see also Snell v. Apfel, reasons’ for the weight given to a treating 177 F.3d 128, 133 (2d Cir. 1999) (“[T]he physicians opinion and we will continue Social Security Administration considers the remanding when we encounter opinions from data that physicians provide but draws its ALJ’s that do not comprehensively set forth own conclusions as to whether those data reasons for the weight assigned to a treating indicate disability.”). physician’s opinion.”). If the opinion of the treating physician as As an initial matter, it is undisputed that to the nature and severity of the impairment Ms. Knapper and Dr. Robotti were plaintiff’s is not given controlling weight, the ALJ must treating physicians. (See AR 27 (referring to apply various factors to decide how much Dr. Robotti as the “[t]reating psychiatrist” weight to give the opinion. See Shaw, 221 and Ms. Knapper as plaintiff’s “therapist”)). F.3d at 134; Clark, 143 F.3d at 118. These Plaintiff argues that the ALJ “committed factors include: (i) the frequency of legal error” by failing to accord “controlling examination and the length, nature, and weight” to these two opinions. (Pl. Mem. at extent of the treatment relationship, (ii) the 23.) The Commissioner argues that the ALJ evidence in support of the opinion, (iii) the gave the opinions “appropriate weight.” (Def. opinion’s consistency with the record as a Mem. at 24.) The Court finds that remand is whole, (iv) whether the opinion is from a required because the ALJ failed to give “good specialist, and (v) other relevant factors. 20 reasons” for according less than controlling C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see weight to the opinions of plaintiff’s treating Clark, 143 F.3d at 118. When the ALJ physicians, while giving “great weight” to a chooses not to give the treating physician’s consultative examiner’s opinion. opinion controlling weight, he must “give First, the Court finds that the ALJ failed good reasons in his notice of determination or to provide sufficient reasons for giving “no decision for the weight [he] gives [the weight” to Dr. Robotti’s opinion. Dr. Robotti claimant’s] treating source’s opinion.” was plaintiff’s treating psychiatrist Clark, 143 F.3d at 118 (quoting C.F.R. throughout the relevant period, seeing §§ 404.1527(d)(2), 416.927(d)(2)); see also plaintiff monthly. Although Dr. Robotti’s Perez v. Astrue, No. 07-cv-958 (DLI), 2009 report indicated that plaintiff had a learning WL 2496585, at *8 (E.D.N.Y. Aug. 14, disability that prevents her from working, the 2009) (“Even if [the treating physician’s] ALJ gave the report no weight because it is opinions do not merit controlling weight, the “phrased as the claimant’s report” and ALJ must explain what weight she gave those because Dr. Robotti was awaiting reports to opinions and must articulate good reasons for confirm the existence of an impairment.7 not crediting the opinions of a claimant’s (AR 34-35.) The ALJ gave no additional treating physician.”). A failure by the ALJ to explanation for deviation from the treating provide “good reasons” for not crediting the physician rule. The Commissioner opinion of a treating physician is a ground for acknowledges that the ALJ rejected the remand. See Snell, 177 F.3d at 133; Halloran treating physician opinions to the degree 7 The Court notes that Dr. Robotti’s March 26, 2012 disturbed since childhood.” (AR 443.) The e v a l u a t i o n s t a t e d t h a t p l a i n t i f f had been “dxed Commissioner’s papers do not appear to address this [diagnosed] as learning disabled and emotionally language. “that it was based upon disability due to a conclusion.”). Under the circumstances in learning disorder” because the medical this case, the ALJ did not provide a sufficient source opinions were “predominately based basis for carving out certain findings of on the claimant’s subjective reporting.” (Def. plaintiff’s treating physician that support the Mem. at 24.) However, it is inappropriate for conclusion of the consultative examiner, the ALJ to “substitute his own expertise or while summarily discarding all other findings view of the medical proof for the treating as “uncorroborated.” 8 (AR 34.) physician’s opinion.” Shaw, 221 F.3d at 134 Although the Commissioner argues that it (citing Balsamo v. Chater, 142 F.3d 75, 81 discounted Ms. Knapper’s findings due to her (2d Cir. 1998)). In short, the ALJ’s purported other reports indicating a lesser level of justifications for giving “no weight” to Dr. limitation (Def. Mem. at 25), those same Robotti’s opinions were not sufficiently reports also show Ms. Knapper indicating substantive. See Perez, 2009 WL 2496585, that plaintiff’s “current level of depression at *8 (“Even if [the treating physician’s] may impair her ability to participate in opinions do not merit controlling weight, the activities indicated” (AR 503, 505). Ms. ALJ must explain what weight she gave those Knapper opined that the plaintiff has “poor to opinions and must articulate good reasons for no ability to perform most of the basic mental not crediting the opinions of a claimant’s tasks of work.” (Id. at 496-503.) The Court treating physician.”). finds it notable that Ms. Knapper found that Second, the ALJ failed to provide plaintiff had poor or no ability to remember sufficient reasons for giving “some” weight work-like procedures or understand and to a particular portion of Ms. Knapper’s remember short and simple instructions (id. report that was “consistent with Dr. at 499), fundamental skills necessary for Herman’s report and findings,” but no weight almost any area of employment. 9 to the rest of the report. (AR at 34.) Ms. Accordingly, the Court finds that the ALJ did Knapper, as plaintiff’s therapist, treated not give sufficient reasons for completely plaintiff weekly during the relevant time discounting much of Ms. Knapper’s opinion. period. The ALJ cannot select evidence that Finally, the Court finds that the ALJ supports a particular conclusion without improperly afforded “great weight” to Dr. providing adequate explanation for each Herman’s opinion as consultative examiner. decision. See Pogozelski v. Barnhart, No. 03 The Second Circuit has indicated that, by CV 2914 (JG), 2004 WL 1146059, at *17 extension of the treating physician rule, ALJs (E.D.N.Y. May 19, 2004); see also Rivera v. should not rely heavily on findings by Bowen, 665 F. Supp. 201, 205 (S.D.N.Y. consultative examiners or non-examining 1987) (“[A]lthough the ALJ is not required doctors. Selian, 708 F.3d at 419 (“ALJs explicitly to reconcile every conflicting shred should not rely heavily on the findings of of medical testimony, he cannot pick and consultative physicians after a single choose evidence that supports a particular 8 The Court notes that the ALJ found that the lack of remember detailed instructions; carry out detailed M s . K n a p p e r ’ s o f f i c e v i s i t n o t e s p r evented her from instructions; set realistic goals or make plans finding corroboration by objective evidence. independently of others; or deal with stress of semi- However, as discussed infra, the ALJ should have skilled and skilled work, explaining that plaintiff “has further developed the record by obtaining and marked difficulty concentrating” and “stay[ing] on reviewing such notes. task.” (AR 500.)

9 Ms. Knapper further reported that plaintiff had poor or no mental ability or aptitude to understand and examination.”). In Selian, the ALJ rejected examination.); see also Gonzalez, 113 F. the treating physician’s diagnosis based in Supp. 2d at 589 (consulting doctor's single part on the opinion of another physician who examination of claimant only deserved “performed only one consultative limited weight).10 examination.” 708 F.3d at 419. The Second In sum, the ALJ committed legal error by Circuit held that, in doing so, the ALJ failing to provide “good reasons” for “fail[ed] to provide ‘good reasons’ for not declining to afford controlling weight to the crediting [the treating physician’s] treating physicians’ opinions. Snell, 177 F.3d diagnosis,” and that failure “by itself at 133. That failure “by itself warrants warrant[ed] remand.” Id. In Cruz v. Sullivan, remand.” Selian, 708 F.3d at 419; see also the Second Circuit explained that “a McAllister v. Colvin, 205 F. Supp. 3d 314, consulting physician’s opinions or report 332-33 (E.D.N.Y. 2016) (citing Balodis v. should be given limited weight . . . because Leavitt, 704 F. Supp. 2d 255, 265–68 ‘consultative exams are often brief, are (E.D.N.Y. 2010) (finding remand was generally performed without benefit or warranted when the ALJ did not “explicitly” review of claimant’s medical history and, at apply and weigh the various factors that must best, only give a glimpse of the claimant on a be considered in determining how much single day.’” 912 F.2d 8, 13 (2d Cir. 1990) weight to give an opinion of a treating (quoting Torres v. Bowen, 700 F. Supp. 1306, physician). Accordingly, the Court 1312 (S.D.N.Y. 1988). concludes that remand is necessary so that the Here, Dr. Herman based his opinion on a ALJ can properly consider such opinions or single examination of plaintiff. (AR 389-92.) provide sufficient reasons for declining to After diagnosing plaintiff with “borderline apply controlling weight. intellectual functioning,” he concluded that it 2. Failure to Develop the Record did not appear “significant enough to interfere with [plaintiff’s] ability to function Plaintiff also asserts that her record was on a daily basis to the extent that vocational incomplete for two reasons: (1) her functioning would be precluded.” (Id. 391.) psychotherapy notes and IEP were missing This opinion is at odds with those of the from the administrative record (Pl. Mem. at treating physicians, who found plaintiff to be 31); and (2) the ALJ did not question her much more limited. Given that Dr. Herman further when plaintiff indicated that she had a examined plaintiff once, and the stark learning disability (id. at 33). The Court finds contrast between his opinion and those of the that remand is also required here where, as treating physicians, the Court finds the ALJ here, the ALJ’s disability determination was incorrectly assigned controlling weight to based on an under-developed record. As this opinion. See Selian, 708 F. 3d at 419 such, the Court does not evaluate ALJ’s (finding that the ALJ gave an inappropriate underlying analysis in its 12.05 amount of weight to the findings of a determination at this juncture.11 consultative physician after a single 10 The Court also notes that any potential harm from 11 With respect to the 12.05 determination, the ALJ t h e w e i g h t g i v e n t o t h e C E e x a m ination was not acknowledged that plaintiff functions “below isolated to the one report. For example, Medical age/grade expectations” (AR 257-58), and that she Examiner Burstein incorporated the CE report into his was in special education classes and lacks a social own limitation analysis. (AR 387.) network (id. at 299-307; 389-92), but found that her deficits did not satisfy the applicable criteria under 12.05. Obviously, on remand, the ALJ will have re- The Second Circuit has made clear that an one conclusion that could be reached here “ALJ, unlike a judge in a trial, must [her]self and therefore remand is unnecessary (id. affirmatively develop the record” in light of (citing Zabala v. Astrue, 595 F.3d 402, 409 “the essentially non-adversarial nature of a (2d Cir. 2010))), the Court does not agree. benefits proceeding.” Pratts v. Chater, 94 The Commissioner argues that the education F.3d 34, 37 (2d Cir. 1996) (quoting documents are “in part” and “to some extent” Echevarria v. Secretary of HHS, 685 F.2d duplicative or cumulative. (Id. at 28.) 751, 755 (2d Cir. 1982)). The Commissioner However, the Court cannot conclude that the is required to develop a complete medical excluded evidence is “largely identical” to record before making a disability reports the ALJ did consider. Zabala, 595 determination, 20 C.F.R. § 404.1512(d)-(f) F.3d at 409; see also Greek, 802 F. 3d at 376 (1995), and that requirement exists even (stating that Zabala dealt with the when, as here, the claimant is represented by circumstance in which an ALJ failed to counsel, id. (citing Perez, 77 F.3d at 47). consider a second, virtually identical opinion by the same treating physician). First, as plaintiff points out (Pl. Mem. at 31-32), the ALJ, in support of her decision, The lack of psychotherapy notes also made numerous references to materials that implicates the ALJ’s decision to give Ms. were not in the record. (See e.g., plaintiff’s Knapper’s findings little weight. 12 IEP at AR 27, 30-31.) Although the Therefore, the ALJ should have sought and Commissioner points to the fact that these reviewed these notes which may have materials were submitted to the Appeals impacted her determination regarding the Council (Def. Mem. at 23), the Second weight to be given to Ms. Knapper’s findings. Circuit has held that, after the Appeals See Shaw, 221 F.3d at 134 (holding that the Council denies review, the court’s review ALJ violated its duty to develop the factual “focuses on the ALJ’s decision.” Lesterhuis record after claiming that plaintiff presented v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015); see no evidence of disability, while also Perez, 77 F.3d at 44 (holding that, after simultaneously discounting the medical the Appeals Council denies review, the ALJ’s opinion of his treating physician); see also decision is the final decision subject to Schaal, 134 F.3d at 505 (“[E]ven if the judicial review). clinical findings were inadequate, it was the ALJ’s duty to seek additional information The Commissioner claims that, even if it from [the treating physician] sua sponte.”). had a duty to obtain the documents, there is Moreover, the ALJ did not claim that these no “basis to remand the case” because the notes were unnecessary when denying materials would have been cumulative of the plaintiff’s disability claim and, given these existing record. (Def. Mem. at 28.) Although circumstances, this Court will not accept the Commissioner argues that there was only “these post hoc rationalizations for agency consider these issues in the context of the fully is particularly relevant to adaptive functioning deficit d e v e l o p e d r e c o r d . S e e B r o s . v . C o l vin, 233 F. Supp. . . . . Most importantly, perhaps, is the substantial 3d 320, 328 (N.D.N.Y. 2017) (finding it critical that evidence . . . showing that, despite the Commissioner's the ALJ did not address the fact that plaintiff had a characterization, plaintiff does not and cannot live learning disability and attended special education independently”). classes); see also Geil v. Colvin, No. 14-CV-6463, 2015 WL 9217026, *9 (W.D.N.Y. Dec. 16, 2015) 12 The ALJ noted: “Ms. Knapper’s ‘findings’ are not (“The record is replete with evidence of plaintiff's corroborated by objective evidence in the case record. need for special education classes and such evidence Ms. Knapper has not provided any of her office visit notes.” (AR 34.) action.” Burlington Truck Lines v. U.S., 371 “the ALI failed to develop the record U.S. 156, 168 (1962); see also McAllister, sufficiently to make’ appropriate disability 205 F. Supp. 3d at 333; Losquadro v. Astrue, determinations, a remand for ‘further -No. 11-CV~—1798 (JFB), 2012 WL 4342069, findings [that] would so plainly help to assure at *15 (E.D.N.Y. Sept. 21, 2012). the proper disposition of [the] claim . . . is particularly appropriate.’” Butts v. Barnhart, Second, plaintiff alleges that the ALJ 388 F.3d 377, 386 (2d Ci . . . . . > ir. 2004), as nt ee ing (PL Mem. at 33) amended on reh'g in part, 416 F.3d 101 (2d Specifically the ALJ | asked no. further rane (quoting Rosa, 08 ee at 83 . ve (finding remand appropriate when the ALJ plaintiff had oe ming tisabikty. (AR failed to obtain adequate information from 65.) Plaintiff argues that the “ALJ had a duty plaintiff's treating physician, other doctors to probe further details” from plaintiff and and facilities, and consequently reached therefore the ALJ did not “fully develop the unsupported conclusions)); see also Johnson record.” (Pl. Mem. at 34) □□□ v. Barnhart, No. 02-CV-1704(NGG), 2004 □ ‘ *4 (E.D.N.Y. . 8,2 Commissioner argues that the ALJ met her (When the’ AL ne to adequately velop duty by asking questions regarding plaintiff's the record, the appropriate remedy is a daily function order to glean how such remand.”) (citing Peed v. Sullivan, 778 F. disability “Def Mem nt 99 ) by a learning Supp. 1241, 1247 (E.D.N.Y.1991)). . . Accordingly, on remand, the ALJ shall 1 The Court stone de that the At did ask consider the psychotherapy notes and the However ‘after tellin the ALT about the IEP, and elicit further testimony from learning disability, plaintiff appeared to try to oder to fail develop the recon disability in elaborate, stating that she has difficulty with □ addition, subtraction, and reading. (AR 65.) V. CONCLUSION llow- ions. ue An asked the ow we dtied tha For the reasons set forth above, plaintiff’ s the ALJ met her duty “to scrupulously and motion for judgment on the pleadings is conscientiously probe into, inquire of, and denied. t The x Neadines i s hos ist explore for all the relevant facts.” Rivera v. Jucement on the pleadings 1s also denied. Astrue, No. 06-CV-3326 DLI CLP. 2009 WL The case is remanded to the ALJ for further 705756 at *7 (E.D.N.Y. Mar 16 2009) proceedings consistent with this (quoting Hankerson v. Harris, 636 F.2d 893, Memorandum and Order. 895 (2d Cir. 1980)). This duty lies regardless □ of whether plaintiff is represented by counsel. \ on See Pratts, 94 F.3d at 37 (“[T]he rule in our Dt ST circuit [is] that ‘the ALJ, unlike a judge ina trial, must [her]self affirmatively develop the | record’ in light of ‘the essentially non- BIANCO adversarial nature of a benefits proceeding . . Unjtefl States Circuit Judge . . [E]ven when, as here, claimant is (sitWg by designation) represented by counsel.”’) (quoting Echevarria, 685 F.2d at 755). Dated: August 8, 2019 Central Islip, New York

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Plaintiff is represented by Rezwanul Islam of the Nassau/Suffolk Law Services Committee Inc., 1 Helen Keller Way, 5th Floor, Hempstead, New York 11550. The Commissioner is represented by Assistant United States Attorney Megan Jeanette Freismuth of the U.S. Attorney’s Office, 610 Federal Plaza, Central Islip, New York 11722.