United States District Court, S.D. New York
CORRECTED OPINION & ORDER 
KATHERINE B. FORREST, District Judge
Irmastene Francine Clarke seeks review, pursuant to 42 U.S.C.
§ 405(g), of the decision by defendant Commissioner of
Social Security (“Commissioner”), finding that
she was not disabled and not entitled to Supplemental
Security Income benefits under Title XVI of the Social
Security Act. The parties have filed cross-motions for
judgment on the pleadings. Plaintiff argues that the
Commissioner made several errors in her decision and requests
that the decision be reversed and plaintiff's claim be
remanded for an award and calculation of benefits, or, in the
alternative, for further proceedings. The Commissioner
opposes, arguing that the decision was legally correct and
supported by substantial evidence. For the reasons set forth
below, the Court GRANTS plaintiff Clarke's motion for
judgment on the pleadings and DENIES the Commissioner's
cross-motion for judgment on the pleadings. As described
below, this case is therefore remanded to the Administrative
Law Judge for further proceedings consistent with this
PROCEDURAL AND FACTUAL BACKGROUND
Irmastene Francine Clarke filed an application for
Supplemental Security Income (“SSI”) benefits on
March 28, 2012. (Tr. 143-151.) The Social Security
Administration (“SSA”) denied the application.
(Tr. 68-69, 72-83.) Plaintiff then requested an
administrative hearing, Tr. 85-86, which took place before an
administrative law judge (“ALJ”) on June 3, 2013,
Tr. 44-67. The ALJ, before whom plaintiff and her attorney
appeared, issued a decision finding that plaintiff was not
disabled and not eligible for monthly SSI benefits. (Tr.
24-38.) The ALJ's decision became the final decision of
the Commissioner of Social Security
(“Commissioner”) when the Appeals Council denied
plaintiff's request for review on January 28, 2015. (Tr.
was born in August 1967. (Tr. 143.) She attended school
through the tenth grade (in special education) and had past
work experience primarily as a home aid. (Tr. 48, 54, 178-79,
192.) Plaintiff testified that she was disabled due to
manic-depressive disorder, schizophrenia, diabetes, asthma,
and high blood pressure. Plaintiff reported multiple
instances of past sexual and physical abuse. (Tr. 238, 331,
350, 506.) Plaintiff also reported past substance abuse
issues. (Tr. 53.)
Elva Naco is plaintiff's treating psychiatrist at the
Center for Urban Community Services (also referred to as the
Jericho Project). (Tr. 234-40, 521-25, 539-608.) Dr. Naco saw
plaintiff on November 20, 2010, February 19, 2011, and March
19, 2011, and on an approximately monthly basis from May 2012
through March 2013. (Id.)
the multi-axial system of assessment,  Dr. Naco
diagnosed plaintiff with bipolar disorder, acute stress
disorder, and cocaine and alcohol abuse on Axis I; deferred
diagnosis on Axis II; diabetes on Axis III; moderate
stressors on Axis IV; and a global assessment of functioning
score (“GAF”) of 58 on Axis V. (Tr. 240, 558,
563, 569, 576-77, 580, 584, 587-88, 594, 599.) Dr. Naco noted
that plaintiff had a history of being abused and poor
compliance with her medication. (Tr. 540-41.) Dr. Naco
prescribed plaintiff Abilify and Seroquel for mood lability.
(Tr. 542, 544, 549.)
5, 2012, plaintiff reported to Dr. Naco that plaintiff had
been clean and sober for six weeks, but that she continued to
experience mood swings, poor focus, and periods of
irritability. (Tr. 237.) Dr. Naco noted that plaintiff
appeared well-groomed and wore casual and clean clothes. (Tr.
238.) Dr. Naco reported that plaintiff experienced ongoing
symptoms of insomnia, flashbacks from past rapes, decreased
focus, anger, and mood swings. (Id.)
5, 2012, Dr. Naco also detailed her medical opinion on the
severity of plaintiff's bipolar disorder in a
Psychiatric/Psychological Impairment Questionnaire. Dr. Naco
noted clinical evidence of poor memory, sleep and mood
disturbances, substance dependence, intrusive recollections
of traumatic experience, difficulty concentrating, and
hostility/irritability. (Tr. 275.) Dr. Naco assessed that
plaintiff had no limitations of her abilities to understand,
remember and carry out one or two step instructions; ask
simple questions, or request assistance; be aware of normal
hazards; take appropriate precautions; and travel to
unfamiliar places or take public transportation. (Tr.
277-79.) She assessed that plaintiff had mild limitations of
her abilities to make simple work-related decisions. (Tr.
Naco further opined that plaintiff was markedly limited -
defined as being effectively precluded from performing the
activities in a meaningful manner - in her ability to perform
activities within a schedule, maintain regular attendance,
and be punctual with customary tolerance; work with or near
others without being distracted; set realistic goals or make
plans independently; and complete a workweek without
interruption from psychologically based symptoms. (Tr.
276-279.) Dr. Naco assessed that plaintiff was moderately
limited - defined as significantly limited but not totally
precluded - in her ability to remember locations and
work-like procedures; understand, remember, and carry out
detailed instructions; maintain attention and concentration
for extended periods; sustain ordinary routine without
supervision; interact appropriately with the general public;
accept instructions and respond appropriately to criticism
from supervisors; get along with co-workers or peers without
distracting them or exhibiting behavioral extremes; maintain
socially appropriate behavior and adhere to basic standards
of neatness and cleanliness; and respond appropriately to
changes in the work setting. (Tr. 276-78.)
5, 2012, Dr. Naco also completed a separate questionnaire for
the Social Security Administration (“SSA”)
opining that plaintiff was unable to work. Dr. Naco further
opined that plaintiff had limited understanding and memory
due to poor focus and limited sustained concentration and
persistence, social interaction, and adaptation due to mood
swings, racing thoughts and irritability. (Tr. 514-19,
duplicated at Tr. 609-12, 615.) In this report, Dr. Naco
included mental status findings, indicating that
plaintiff's thought process was goal-directed, but that
plaintiff's mood was irritable and angry at times; she
had occasional mood swings and her affect was reactive. (Tr.
616.) Plaintiff's ability to perform calculations was
fair due to diminished focus. (Id.) Plaintiff's
insight and judgment were impaired at times. (Id.)
Plaintiff was maintained on Seroquel and supportive therapy.
(Tr. 617.) Her illness was chronic, but “better at this
19, 2012, Dr. Naco responded to the SSA's request for
specific examples to support her conclusion that plaintiff
was limited with respect to her abilities in understanding
and memory, sustained concentration, social skills, and
adaptation. (Tr. 497, duplicated at Tr. 603.) Dr. Naco
responded that her report was based upon her own observations
that plaintiff was “quite hyper” and needed
redirection and was “easily irritable, nervous, and
impatient” during severe mood swings, causing problems
with focus and memory. (Id.) She also stated that
plaintiff could be quite sensitive to minor criticisms
“and has had issues with staff members.”
(Id.) On June 9, 2012, Dr. Naco continued to report
that plaintiff was unable to work. (Tr. 600.)
October 20, 2012, Dr. Naco completed a FEGS WeCare Medical
report. (Tr. 234.) Plaintiff's diagnoses were bipolar
disorder, PTSD, and cocaine abuse in partial remission.
(Id.) Plaintiff had mood swings, irritability,
flashbacks of past rapes, low energy level, and a diminished
memory. (Id.) Plaintiff was on Seroquel and Ambien.
(Tr. 234.) Her illnesses were chronic with a relapsing and
remitting course. (Id.) Dr. Naco reported that
plaintiff was unable to work for at least 12 months.
March 2, 2013, Dr. Naco completed a second
Psychiatric/Psychological Impairment Questionnaire that
recorded findings generally unchanged from the first
questionnaire completed on May 5, 2012. (Tr. 618-625.) Dr.
Naco reported that plaintiff's use of drugs and/or
alcohol was a symptom of her condition or form of
self-medication, and that plaintiff's disability was
independent of any substance use. (Tr. 626.)
October 2012 through April 2013, plaintiff also saw Eloisa
Negron Rodriguez, a licensed social worker, in the medical
office of Dr. Indrani Persaud, plaintiff's primary care
physician. (Tr. 638-39, 642-43, 647-56, 663, 686, 695,
715-18, 721.) Ms. Rodriquez saw plaintiff approximately
monthly, providing therapeutic counseling for complaints of
addition, plaintiff was seen by Dr. Persaud for medical care.
Dr. Persaud saw plaintiff anywhere from once a month to once
in six months. (Tr. 242.) On July 18, 2012, Dr. Persaud
completed a “Multiple Impairment Questionnaire”
diagnosing plaintiff with uncontrolled diabetes, asthma,
bipolar disorder, schizophrenia, and bilateral leg pain.
(Id.) Dr. Persaud noted that plaintiff had symptoms
of daily bilateral leg pain. (Tr. 243.) According to Dr.
Persaud, plaintiff's pain was severe, rating it a 9 on a
scale of 1 to 10. (Tr. 244.) Dr. Persaud did not list fatigue
as a symptom, but when asked to rate it, she stated that it
was moderately severe - an 8 on a scale of 1 to 10. (Tr.
244.) Dr. Persaud noted that medication did not fully relieve
plaintiff's pain. (Id.)
Persaud opined that in an eight-hour workday, plaintiff could
sit for one hour and stand/walk one hour. (Id.) She
would have to get up from the sitting position every thirty
minutes or so, and could sit back down after another 30
minutes. (Id.) She could lift up to ten pounds. (Tr.
245.) Dr. Persaud assessed that due to pain and stiffness in
plaintiff's fingers and hands, plaintiff had moderate
limitations of grasping, turning, and twisting objects, fine
manipulation and reaching, including overhead. (Tr. 246.)
Persaud stated that plaintiff's condition would interfere
with her ability to keep her neck in a constant position and
that her symptoms would interfere with her attention and
concentration. (Tr. 246-47.) Stress impacted plaintiff's
symptoms, and according to Dr. Persaud, she was therefore
unable to tolerate even low stress work. (Tr. 247.) Dr.
Persaud indicated that plaintiff would regularly need to take
unscheduled breaks of one hour, Tr. 247, and miss work more
than three times a month, Tr. 248. In addition, from a check
off list, Dr. Persaud indicated that plaintiff had
psychological limitations; had to avoid noise, fumes, gases,
temperature extremes, humidity, dust, and heights; had
limited vision; and was unable to pull, kneel, bend or stoop.
October 23, 2012, Dr. Persaud completed a medical report for
the FEGS WeCare program. (Tr. 232-33.) She diagnosed
plaintiff with diabetes, asthma and bipolar disorder. (Tr.
232.) She noted that plaintiff was alert and oriented times
three (she had orientation of time, place, and person). (Tr.
232.) Plaintiff had a normal physical examination with the
exception of bilateral expiratory wheezing. (Tr. 232.)
Despite medication, her diabetes was uncontrolled. (Tr. 232.)
Plaintiff's asthma was mild and persistent. (Tr. 233.)
Her bipolar disorder was in “remitting course.”
(Tr. 233.) Dr. Persaud indicated that plaintiff had no
functional limitations, but that she was unable to work for
at least twelve months due to depression and mood swings.
Consulting medical sources
14, 2012, Howard Tedoff, Ph.D. conducted a consultative
psychiatric assessment of plaintiff at the request of SSA.
(Tr. 505-08.) Plaintiff reported sobriety for the past year.
(Tr. 506.) She complained of hearing voices and seeing faces.
(Id.) Plaintiff stated that she could only read at a
third grade level and had only limited multiplication skills.
was cooperative during a mental status examination.
(Id.) Her manner of relating, social skills, and
overall presentation were adequate. (Id.) Plaintiff
was dressed and groomed casually, her posture and gait were
normal, and she made appropriate eye contact. (Id.)
Plaintiff spoke intelligibly and in a relevant and
goal-directed manner and conversed interactively.
(Id.) Plaintiff's thought processes appeared
coherent and “to some extent” goal-directed. (Tr.
507.) Dr. Tedoff noted that plaintiff had a history of
auditory and visual hallucinations that were in remission on
medication. (Id.) Plaintiff denied suicidal
ideation. (Id.) When not on medication, plaintiff
engaged in self-hurting behavior. (Id.)
was tearful about her history; her affect was congruent with
her speech and thought content. (Id.)
Plaintiff's mood was euthymic on medication, but without
medication, psychotic features prevailed. (Id.) On
medication, plaintiff was oriented times three.
(Id.) Plaintiff's attention and concentration
were mildly impaired; she had difficulty with calculations
and counted up instead of down in doing serial threes.
(Id.) Upon recent and remote memory skills testing,
plaintiff could recall six digits forward, three digits in
reverse order and recall three out of three items after five
minutes. (Id.) ...