UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---- --- --- ---- ---- --- -- ------- --- ----- --- -------- -- -- ----- -- -- -- --------x
XHEV AHIRE GJECI,
Plaintiff,
-v-
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
------------------------------------------------------------------------x
KATHERINE B. FORREST, District Judge:
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:~~~~~
DATE FILED:
13-cv-6539 (KBF)
MEMORANDUM
DECISION & ORDER
Plaintiff pro se Xhevahire Gjeci seeks reversal of the decision by defendant
Commissioner of Social Security (the "Commissioner") finding that she was not
disabled and not entitled to supplemental security income under Title XVI of the
Social Security Act. (Tr. 12-20.)
On September 8, 2010, plaintiff filed an application for supplemental security
income. (Tr. 12, 131-40, 158.) On March 16, 2011, the Commissioner denied
plaintiffs application on initial review. (Tr. 73-80.) Plaintiff requested a hearing
before an administrative law judge ("ALJ"). (Tr. 81-83.) On March 8, 2012,
plaintiff appeared and testified, with her attorney present, at a hearing before ALJ
Barry L. Williams. (Tr. 24-68.) On April 9, 2012, the ALJ issued a decision finding
that plaintiff was not disabled within the meaning of the Act. (Tr. 12-20.) This
decision became the final decision of the Commissioner on July 8, 2013, when the
Appeals Council denied plaintiffs request for review. (Tr. 2-7.)
Case 1:13-cv-06539-KBF Document 20 Filed 07/07/14 Page 1 of 17
On September 16, 2013, plaintiff filed a complaint seeking judicial review of
the ALJ's decision. (ECF No. 2.) On March 14, 2014, defendant filed a motion for
judgment on the pleadings. (ECF No. 17.) Plaintiff did not oppose defendant's
motion.
For the reasons set forth below, defendant's motion is DENIED and this
action is remanded to the Commissioner for further proceedings.
I. BACKGROUND
The Court recites here only those facts relevant to its review .1 This Court
reviews the ALJ's decision to determine whether there is substantial evidence to
support his determination that plaintiff was not disabled between September 8,
2010, when she applied for supplemental security income, and April 9, 2012, the
date of the ALJ's decision. See 20 C.F.R. §§ 416.330, 416.335.
Plaintiff, who was 41 at the time of her application, is an Albanian-born
permanent resident with an eighth·grade education and no prior work experience.
(Tr. 40, 44, 131, 141, 156-57, 162-64, 314.) Plaintiff speaks Albanian, but not
fluent English. (Tr. 40, 162, 314.) Plaintiff has alleged physical disabilities due to,
inter aha, disorders of the spine, vertigo, myocardial infarction, kidney stones, anal
fissure, sinusitis, cholesterolemia, constipation, pharyngitis, helicobacter pyiori
infection, thyroid nodules, recurring headaches, and arthalgias. (See Tr. 14.)
Plaintiff has alleged mental disabilities due to, inter aha, depression, anxiety,
bipolar disorder, insomnia, anxiety, low energy, and poor concentration. (See Tr.
14, 163.) In a function report completed on January 3, 2011, plaintiff reported
1 A thorough summary of plaintiffs medical history is set forth in the administrative record.
2
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various issues stemming from her alleged disability, including an inability to
perform household chores, an inability to handle money, requiring assistance to
maintain personal care and hygiene, a lack of concentration, and an inability to
follow instructions. (Tr. 172-80.) Plaintiff also reported an ability to occasionally
prepare simple meals; to walk in public, use a car, and travel on public
transportation with assistance; and to leave the house occasionally to attend
healthcare appointments and grocery shop. (Id.)
The record contains reports from several physicians detailing the nature of
plaintiffs physical health. On October 7, 2010 and January 6, 2011, plaintiff saw
her primary care physician Dr. Alan Diaz and reported back pain, shoulder pain,
clavicular pain, constipation, and "pain EVERYWHERE." (Tr. 254, 260.) On
February 1, 2011, plaintiff presented to Dr. Diaz sad, mildly ill, uncomfortable, and
overweight. (Tr. 262.) Dr. Diaz recommended and plaintiff underwent MRis and X-
rays of plaintiffs spine, ribs, and hip, but Dr. Diaz did not recommend or order
surgery. (Tr. 262, 264-68.)
Plaintiff saw osteopath Dr. Joshua Lehman for physical therapy from
September 2010 through March 2011. (Tr. 281-82, 284-85, 287-88, 290-92, 349-
50, 353, 364-65.) During those visits, plaintiff reported, inter alia, continued pain
in her neck, back, and left knee. (Id.) Dr. Lehman repeatedly performed a series of
musculoskeletal tests, often showing negative results, although occasionally with
positive results. (Tr. 281, 284, 287, 291, 313, 349, 353, 364.) Plaintiff stated that
medication and massages prescribed by Dr. Lehman helped alleviate her pain. (Tr.
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290.) During her final visit to Dr. Lehman, on March 30, 2011, plaintiff informed
Dr. Lehman that she intended to discontinue physical therapy because her home
was too far from Dr. Lehman's office. (Tr. 349.) Dr. Lehman recommended that
plaintiff continue using pain medication as needed and follow up with Dr. Diaz.
(Id.)
Plaintiff visited Wilson Orthopaedics once in October 2010 and twice in
January 2011. (Tr. 431-32.) In October, doctors suspected plaintiff had
fibromyalgia, but plaintiff was unable to follow up with a rheumatologist. (Tr. 432.)
On January 11, 2012, Dr. Donald E. Heitman conducted a series of musculoskeletal
tests, prescribed medication and physical therapy for plaintiff, and recommended
that plaintiff see a pain specialist, Dr. Sonali Lal. (Id.) On January 17, 2012, Dr.
Lal found that plaintiff had full strength in her bilateral and upper extremities,
that she was alert and oriented, and that her jump response was positive. (Tr. 431.)
Dr. Lal prescribed more pain medication and recommended that plaintiff return to
Wilson with an interpreter in four weeks. (Id.)
On February 4, 2011, plaintiff saw Dr. William Lathan for a consultative
physical examination. (Tr. 310-13.) Plaintiff reported that medication and physical
therapy were ineffective, but that wearing a soft corset brace was helpful. (Tr. 310.)
Dr. Lathan noted that plaintiff needed no help mounting and dismounting the
examination table. (Tr. 311.) Plaintiff had a full range motion in her shoulders,
arms, hips, and knees, and her prognosis was stable. (Tr. 312.) Dr. Lathan did,
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however, note "a severe restriction for bending, lifting, pushing, pulling, squatting,
standing, walking, and strenuous exertion." (Tr. 313.)
On February 17, 2012, plaintiff saw Dr. Arnold Wilson, who completed a
"Medical Source Statement of Ability to Do Work-Related Activities (Physical)"
form. (Tr. 344-47.) Based on the extent of plaintiffs impairment, Dr. Wilson stated
that plaintiff should lift not more than 5 pounds, should not walk farther than one
or two blocks at time, and should alternate periodically between standing and
sitting. (Tr. 344-45.) The doctor also noted that plaintiff had limited pushing and
pulling capabilities and could not perform postural activities. (Tr. 345.) Finally,
Dr. Wilson stated that it was "medically reasonable to expect that [plaintiffs]
ability to maintain attention and concentration on work tasks throughout an 8 hour
day is significantly compromised by pain, prescribed medication or both[.]" (Tr.
346.)
The record contains reports from several psychiatrists detailing the nature of
plaintiffs mental health. Plaintiff saw her treating psychiatrist, Dr. Michael
Hargrove, on November 10 and December 7, 2009; January 11, February 8, March
8, April 5, May 3, June 1, August 10, September 7, October 4, November 15, and
December 13 of 2010; January 3, January 31, March 1, March 29, April 26, May 24,
June 21, August 1, August 29, September 26, November 14, and December 13 of
2011; and January 10, 2012. (Tr. 440-54.) Plaintiff never reported hallucinations,
suicidal or homicidal ideations, or delusions. (See id.) Dr. Hargrove reported that
plaintiff felt physical pain, sad, depressed, or "so-so" during the September 7,
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October 4, November 15, December 13, 2010, January 31, March 29, April 26,
August 1, August 29, September 26, November 14 and February 7 visits. (Id.) Dr.
Hargrove reported plaintiff felt "pretty good,'' "a little bit good,'' or "okay" during the
March 1, May 24, December 13, and January 10 visits. (Tr. 443-45, 451-52.)
During the relevant period, Dr. Hargrove treated plaintiff with Valium, Risperdal,
Trazodone, Seroquel, and Wellbutrin XL. (Tr. 447-48.) Although she experienced
some sleeping difficulty, plaintiff stated that the medication helped her sleep. (Tr.
443.)
On January 31, 2011, 2 Dr. Hargrove diagnosed plaintiff with major
depressive disorder, severe with psychotic features, rendering her "medically
(mentally) disabled." (Tr. 464-65.) According to Dr. Hargrove, "Major Depressive
Disorder is a mental illness that causes poor concentration, forgetfulness, thoughts
of dying, insomnia, and may cause auditory hallucinations." (Tr. 464.) Dr.
Hargrove noted:
[Plaintiff] is unable to concentrate and retain new information. She
cannot focus when reading. Her immediate retention and recall are
impaired due to the severity of depression. Her impairments of
concentration and immediate retention and recall affect her ability to
demonstrate knowledge and understanding of English and/or civics.
She has difficulty learning and retaining new information.
(Tr. 466.) Finally, Dr. Hargrove noted that plaintiffs mental condition impaired her
ability to read, write, and speak English. (Id.)
2 The interpreter's certification suggests that the medical examination that formed the basis of this
diagnosis occurred on May 22, 2007. (Tr. 468.) However, it appears that this date may be an error.
Dr. Hargrove dated the form January 31, 2011, and stated in his notes that he "[f]illed out Form N-
648, Medical Certification for Disability Exception for [plaintiff]" on January 31, 2011. (Tr. 443.) In
the interest of liberally construing plaintiffs pro se complaint, the Court treats the diagnosis as
having been made on January 31, 2011.
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On February 4, 2011, Dr. Arlene Broska performed a consultative
psychological examination of the plaintiff. (Tr. 314-17 .) Plaintiff told Dr. Broska
"that she feels better on her medications." (Tr. 314.) Dr. Broska noted that
plaintiffs speech was fluent and that plaintiffs "[e]xpressive and receptive language
abilities were adequate." (Tr. 315.) However, plaintiff told Dr. Broska that she had
an imaginary friend whom she saw, hear, and spoke with every day. (Tr. 314.) Dr.
Broska noted that plaintiffs concentration was so impaired that plaintiff could not
count from one to ten and could not perform simple math calculations. (Tr. 315.)
Further, Dr. Broska noted plaintiffs recent and remote memory skills, judgment,
and insight were all impaired. (Id.) Dr. Broska discussed plaintiffs ability to work:
Vocationally, it appears the claimant can follow and understand simple
directions and instructions. She requires assistance with simple and
complex tasks. She may have difficulty maintaining attention and
concentration and when learning new tasks. She may have difficulty
maintaining a regular schedule. She does not make appropriate
decisions. She may not relate adequately with others or appropriately
deal with stress.
(Id.) Dr. Broska ultimately concluded, "The results of the examination appear to be
consistent with psychiatric problems and this may significantly interfere with
[plaintiff]'s ability to function on a daily basis." (Id.)
On March 5, 2011, Dr. T. Inman-Dundon completed a Psychiatric Review
Technique form based solely on a compilation of plaintiffs medical records. (Tr.
318-31.) Dr. Inman-Dundon determined that plaintiff did not meet the necessary
criteria to be found disabled under the relevant regulations, although Dr. Inman-
Dundon did determine that plaintiff had moderate restrictions in daily living
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activities and maintaining concentration. (Tr. 328-29.) Overall, Dr. Inman-
Dundon determined that plaintiff "appears to be capable of at least simple work on
a sustained basis." (Tr. 340.)
II. APPLICABLE LEGAL PRINCIPLES
A. Judgment on the Pleadings
"After the pleadings are closed-but early enough not to delay trial-a party
may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "The same
standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss applies to Fed. R.
Civ. P. 12(c) motions for judgment on the pleadings." Bank of N.Y. v. First
Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). Therefore, "[t]o survive a Rule
12(c) motion, the complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face." Id. (internal quotation marks
omitted).
Even where a motion stands unopposed, the Court does not embrace default
judgment principles. "Although the failure to respond may allow the district court
to accept the movant's factual assertions as true, the moving party must still
establish that the undisputed facts entitle him to a judgment as a matter of law."
Vt. Teddy Bear Co. v. 1800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004)
(citations and internal quotation marks omitted); see also Martell v. Astrue, No. 09
Civ. 1701 (NRB), 2010 WL 4159383, at *2 n.4 (S.D.N.Y. Oct. 20, 2010) (applying the
same standard in a prose unopposed SSI appeal).
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The Court "liberally construe [s] pleadings and briefs submitted by pro se
litigants, reading such submissions to raise the strongest arguments they suggest."
Bertin v. United States, 4 78 F.3d 489, 491 (2d Cir. 2007) (citation and internal
quotation marks omitted).
B. The Disability Standard
The Commissioner will find a claimant disabled under the Act if he or she
demonstrates an "inability 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 that has lasted or can be expected to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A). The claimant's
impairment 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."
42 U.S.C. § 423(d)(2)(A). The disability must be "demonstrable by medically
acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
The Commissioner uses a five·step process when making disability
determinations. See 20 C.F.R. §§ 404.1520, 416.920. The Second Circuit has
described the process as follows:
First, the Commissioner considers whether the claimant is currently
engaged in substantial gainful activity. Where the claimant is not, the
Commissioner next considers whether the claimant has a "severe
impairment" that significantly limits her physical or mental ability to
do basic work activities. If the claimant suffers such an impairment,
the third inquiry is whether, based solely on medical evidence, the
claimant has an impairment that is listed in 20 C.F.R. Part 404,
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Subpart P, App. 1 ["Appendix 1"]. Assuming the claimant does not
have a listed impairment, the fourth inquiry is whether, despite the
claimant's severe impairment, she has the residual functional capacity
["RFC"] to perform her past work. Finally, if the claimant is unable to
perform her past work, the burden then shifts to the Commissioner to
determine whether there is other work which the claimant could
perform.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).
C. Review of the ALJ's Judgment
The Commissioner and ALJ's decisions are subject to limited judicial review.
The Court may only consider whether the ALJ has applied the correct legal
standard and whether his findings of fact are supported by substantial evidence.
When these two conditions are met, the Commissioner's decision is final. 42 U.S.C.
§ 405(g); Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008); Veino v. Barnhart,
312 F.3d 578, 586 (2d Cir. 2002); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999);
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).
If the Commissioner and ALJ's findings as to any fact are supported by
substantial evidence, then those findings are conclusive. 42 U.S.C. § 405(g); Diaz v.
Shalala, 59 F.3d 307, 312 (2d Cir. 1995). Substantial evidence means "'more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.'" Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Court must
consider the record as a whole in making this determination, but it is not for this
Court to decide de novo whether the plaintiff is disabled. See Veino, 312 F.3d at
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586; Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater, 104 F.3d
1432, 1433 (2d Cir. 1997).
"[T]he treating physician rule generally requires deference to the medical
opinion of a claimant's treating physician,'' although an ALJ need not afford
controlling weight to a treating physician opinion where "the treating physician
issued opinions that are not consistent with other substantial evidence in the
record, such as the opinions of other medical experts." Halloran v. Barnhart, 362
F.3d 28, 32 (2d Cir. 2004). An ALJ who refuses to accord controlling weight to the
medical opinion of a treating physician must consider various factors, including "(i)
the frequency of examination and the length, nature and extent of the treatment
relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the
consistency of the opinion with the record as a whole; [and] (iv) whether the opinion
is from a specialist." Id. (citing 20 C.F.R. § 404.1527(d)(2)).
III. DISCUSSION
Regarding plaintiffs physical impairments, the ALJ correctly conducted the
five-step analysis required by 20 C.F.R. §§ 404.1520 and 416.920.
The ALJ concluded that plaintiff "has the residual functional capacity to
perform light work," and that she "can only occasionally climb ramps or stairs,
stoop, kneel, crouch or crawl,'' but "never climb ladders[,] ropes or scaffolds." (Tr.
15.) In coming to this conclusion, the ALJ relied on "the treating orthopedist,'' Dr.
Lehman. (Tr. 16-18.) The ALJ also relied upon various findings and conclusions of
the various doctors at Wilson Orthopaedics. (See id.) Although plaintiffs doctors
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suggested that plaintiff had some physical pain, the Court agrees that the record
contains substantial evidence that plaintiff could perform light work. Dr. Diaz,
plaintiffs treating physician, noted that plaintiff was ill, overweight, and
uncomfortable, but not that plaintiff was unable to climb ramps and stairs, kneel, or
crouch. Dr. Lehman had more serious concerns about plaintiffs physical condition
than Dr. Diaz, but suggested that plaintiffs physical pain was manageable with the
right medication. The Wilson doctors came to essentially the same conclusion as
Dr. Lehman. Finally, Dr. Wilson noted that plaintiff had some severe physical
restrictions, but none so pervasive as to prevent plaintiff from completing light
work. Because the ALJ supported his conclusions regarding plaintiffs physical
disabilities with "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion," Pratts, 94 F.3d at 37, the Court must uphold that
determination. See 42 U.S.C. § 405(g); Diaz, 59 F.3d at 312.
However, regarding the plaintiffs mental impairments, the ALJ incorrectly
dismissed the opinion of plaintiffs treating psychiatrist, Dr. Hargrove, and
therefore incorrectly conducted the five-step analysis required by 20 C.F.R. §§
404.1520(a)(4)(i)-(iv).
The treating physician rule generally requires that the ALJ afford deference
or controlling weight to a treating physician's opinion unless "other substantial
evidence in the record, such as the opinions of other medical experts," contradicts
with it. Halloran, 362 F.3d at 32. Here, in finding that the claimant could perform
light work notwithstanding her mental conditions, the ALJ stated-in accordance
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with the rule-that he gave "the treating ... psychiatrist's observations regarding
the moderate nature of the claimant's impairmentsD great weight since they are
supported by a record showing that the claimant can perform at least light work."
(Tr. 17.)
However, the ALJ appears to have misinterpreted or misstated Dr.
Hargrove's opinion, which conflicts with rather than supports the ALJ's
determination. For example, Dr. Hargrove determined that plaintiff was "unable to
concentrate and retain new information," and that her "immediate retention and
recall are impaired due to the severity of depression" (Tr. 466)-contrary to the
ALJ's conclusion that plaintiff is able to learn and "perform simple routine
repetitive tasks." (Tr. 15.) Similarly, Dr. Hargrove found that plaintiff could not
speak English and that her mental disability was so severe that she was incapable
of learning English sufficient to engage in those interactions-contrary to the ALJ's
determination that plaintiff could "occasionally interact with the public." (Tr. 15.)
Finally, Dr. Hargrove concluded that plaintiff was "medically (mentally) disabled."
(Tr. 465.) This conclusion is at odds with the ALJ's ultimate determination that
plaintiff could perform light work.
The Court is mindful that the ALJ is entitled to dismiss a treating
physician's opinion where "other substantial evidence in the record, such as the
opinions of other medical experts," contradicts with it. Halloran, 362 F.3d at 32.
However, the ALJ here did not state his disagreement with Dr. Hargrove's opinion.
Assuming arguendo that the ALJ were rejecting that opinion, the record does not
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contain any medical opinions or other substantial evidence in the record to support
that rejection. For example, Dr. Inman-Dundon's report, which found that plaintiff
was "capable of at least simple work on a sustained basis" (Tr. 340), is insufficient
substantial evidence to reject Dr. Hargrove's opinion. Dr. Inman-Dundon did not
examine plaintiff in person, unlike Dr. Hargrove, but rather recited facts found in
Dr. Hargrove's and Dr. Broska's notes and then came to a contrary conclusion. (See
id.; Mem. of L. in Supp. of Commissioner's Mot. 5, ECF No. 18.) Under the factors
set forth in 20 C.F.R. § 404.1527(d)(2), any reliance on Dr. Inman-Dundon's report
rather than Dr. Hargrove's would be improper. See Halloran, 362 F.3d at 32.3
The ALJ also discounted Dr. Broska's opinion, which stated that plaintiffs
"psychiatric problems ... may significantly interfere with [plaintiff]'s ability to
function on a daily basis" (Tr. 315), because she based her opinion in part on
plaintiffs subjective reporting of psychiatric symptoms. (See Tr. 18.) The ALJ is, of
course, entitled to make credibility determinations regarding plaintiffs subjective
complaints, particularly during the administrative hearing. See, e.g., Schaal, 134
F.3d at 502. However, the ALJ may not reject a doctor's medical opinion simply
because the opinion partially relied on subjective reporting. See Green-Younger v.
Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) ("The fact that [a doctor] also relied on [a
claimant's] subjective complaints hardly undermines his opinion as to her
3 The ALJ did explicitly reject one part of Dr. Hargrove's opinion: his conclusion that plaintiff could
not speak English. (See Tr. 15-18.) The ALJ noted that Dr. Hargrove "did not present any objective
evidence or even intellectual testing" in support of his finding. (Tr. 18.) However, that alone cannot
serve as a basis for rejecting Dr. Hargrove's opinion, because, as "a general matter, 'objective'
findings are not required in order to find that an applicant is disabled." Green-Younger v. Barnhart,
335 F.3d 99, 108 (2d Cir. 2003).
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functional limitations, as [a] patient's report of complaints, or history, is an
essential diagnostic tool.") (alteration in original) (internal quotation marks
omitted).
While the ALJ's opinion is not entirely clear on this point, the ALJ also
appears to have relied in part on the vocational expert in determining plaintiffs
credibility and in finding plaintiffs RFC. (See Tr. 17.) Such reliance was improper.
A vocational expert's function is to determine whether jobs exist in the national
economy based on an RFC as determined by the ALJ. (See Tr. 57-58.) Thus, an
ALJ may not rely on a vocational expert to determine a claimant's RFC. See
Townley v. Heckler, 748 F.2d 109, 113 (2d Cir. 1984); 20 C.F.R. § 404.1546 ("[T]he
administrative law judge ... is responsible for assessing your residual functional
capacity.").
Thus, the ALJ rejected Dr. Hargrove's determination that plaintiff was
"medically (mentally) disabled" due to major depressive disorder, severe with
psychotic features (Tr. 464-65), despite the lack of "substantial evidence in the
record, such as the opinions of other medical experts," to support his doing so.
Halloran, 362 F.3d at 32. "In the absence of a medical opinion to support the ALJ's
finding" as to a plaintiffs RFC, "it is well-settled that the ALJ cannot arbitrarily
substitute his own judgment for competent medical opinion." Balsamo, 142 F.3d at
81 (internal quotation marks omitted).
In light of the ALJ's errors, the Court remands this action to the
Commissioner so that the ALJ may fully develop the factual record-including
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seeking further information from the doctors justifying their opinions-and reweigh
all medical opinions in the record appropriately. If the ALJ rejects Dr. Hargrove's
medical opinion on remand and after fully developing the record, he shall rely on
substantial evidence to do so. See, e.g., Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.
2000) ("For the ALJ to conclude that plaintiff presented no evidence of disability at
the relevant time period, yet to simultaneously discount the medical opinion of his
treating physician, violates his duty to develop the factual record .... "); Rosa, 168
F.3d at 79 ("[A]n ALJ cannot reject a treating physician's diagnosis without first
attempting to fill any clear gaps in the administrative record."); Schaal, 134 F.3d at
505 ("The lack of clinical findings complained of by the ALJ did not justify the
failure to assign at least some weight to [the doctor's] opinion[;] even if the clinical
findings were inadequate, it was the ALJ's duty to seek additional information from
[the doctor] sua sponte."). 4
4 Because the ALJ erred in failing to accord Dr. Hargrove's opinion appropriate weight, the Court
does not reach the question of whether the ALJ properly rejected plaintiffs credibility. (See Tr. 17.)
The Commissioner shall reconsider the question of plaintiffs credibility on remand. See Rosa, 168
F.3d at 82 n.7 ("Because we have concluded that the ALJ was incorrect in her assessment of the
medical evidence, we cannot accept her conclusion regarding [plaintiffs] credibility.").
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IV. CONCLUSION
For the reasons set forth above, Defendant's motion for judgment on the
pleadings is DENIED. The Clerk of Court is directed to close the motion at ECF
No. 17, to terminate this action, and to remand this action to the Social Security
Administration for further proceedings. 5
Dated:
cc:
New York, New York
July ..1:_, 2014
Xhevahire Gjeci
171 East 205th Street
Apt. 4A
Bronx, NY 10458
KATHERINE B. FORREST
United States District Judge
5 The Court has the power to remand this action to the Social Security Administration sua sponte
notwithstanding the fact that plaintiff did not file her own motion for judgment on the pleadings.
See, e.g., Carnevale v. Gardner, 393 F.2d 889, 891 n.l (2d Cir. 1968); Clark v. Callahan, No. 96-cv-
3020 (SAS), 1998 WL 512956, at*l (S.D.N.Y. Aug. 17, 1998) ("Although 'a remand request is
normally made by a party, there is no reason why a court may not order the remand sua sponte."'
(quoting Igonia v. Califano, 568 F. 2d 1383, 1387 (D.C. Cir. 1977))).
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